CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (hereinafter referred to as the
"Contribution Agreement") is made and entered into as of April 6, 1998 by and
between Kimco Bradenton 698, Inc., a Florida corporation (the "Contributor"),
and Bay-Gard, Ltd., a Florida limited partnership (the "Operating Partnership")
and between Xxxxxxx X. Wafer (the "Withdrawing Partner"); Xxxxxx Investment
Corporation; Fargo Investments; Palmetto Holdings I, Inc.; Midway Holdings,
Inc.; and X.X. Xxxxxxx Land Company, Inc. (collectively, the "Limited Partners).
RECITALS
A. As of the Effective Time of the Amended and Restated Limited Partnership
Agreement, Kimco Bradenton 698, Inc., will become the General Partner of the
Operating Partnership in accordance with the terms and conditions set forth
herein and Midway Holdings, Inc., Palmetto Holdings I, Inc. and X.X. Xxxxxxx
Land Company, Inc., will become a Limited Partner of the Operating Partnership
in accordance with the terms and conditions set forth herein.
B. The Operating Partnership represents that it owns the shopping center
commonly known as BAYSHORE GARDENS SHOPPING CENTER located in Bradenton,
Florida, as shown on the Plan (the "Shopping Center"); and
C. Pursuant to the terms of this Contribution Agreement, the Contributor will
contribute cash to the Operating Partnership in exchange for OP Units in the
Operating Partnership (the "OP Units"), on the terms and subject to the
conditions set forth herein and in the Amended and Restated Limited Partnership
Agreement.
NOW, THEREFORE, for and in consideration of the foregoing premises, and
the mutual undertakings set forth below, the parties hereto agree as follows:
1. DEFINITIONS. For this Agreement, the following expressions shall have
the meanings hereinafter set forth.
"Adjusted Purchase Amount" means the Unadjusted Purchase Amount minus
the Adjustment Amount. In the event that the value of the Adjustment Amount
exceeds the value of the Unadjusted Purchase Amount, the Adjusted Purchase
Amount will be equal to zero.
"Adjustment Amount" means the net amount of all adjustments (as set
forth in Section 5 or elsewhere in this Agreement) to the value of the
Partnership Interests being purchased. The Adjustment Amount will begin at zero
and decrease with amounts owed to Pre Closing Partners and increase with amounts
owed to Post Closing Partners, as set forth herein.
"Agreed Upon Value" means $14,405,000.00.
"Effective Time" means the date and time when the Contribution Amount
and Adjusted Purchase Amount are paid by the Contributor, and the Contributor
receives the evidence of ownership of its OP Units.
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"Contribution Amount" means the amount of cash to be contributed to the
Operating Partnership, which does not include the Adjusted Purchase Amount,
pursuant to this Contribution Agreement as defined in Section 2.1.
"Escrow Agent" means Chicago Title Insurance Company.
"Excess Adjustment Amount" means the Adjustment Amount minus the
Unadjusted Purchase Amount, however, if the Adjustment Amount is not greater
than the Unadjusted Purchase Amount then the Excess Adjustment Amount will equal
zero and will not be relevant.
"Deposit" means a deposit in the amount of Two Hundred Thousand Dollars
($200,000.00) (plus any interest earned thereon).
"General Partner" means Kimco Bradenton 698, Inc., a Florida
corporation, the post Closing General Partner of the Operating Partnership.
"Inspection Period" means a period of time commencing on the date
Contributor receives a fully signed counterpart of this Contribution Agreement,
and expiring at midnight on the thirtieth (30th) calendar day (or the first
business day after such thirtieth 30th day if such thirtieth (30th) day is not a
business day) thereafter.
"Permitted Exceptions" means those certain title exceptions set forth in
the first preliminary title commitment to be received by Contributor, which
Contributor, in Contributor's sole and exclusive judgment shall have approved
pursuant to Section 6.
"Personal Property" means any furniture, furnishings, tools, equipment,
supplies (consumable and otherwise) and any other movable property (if any)
located at and used in connection with the operation of the Shopping Center
which are now or at Closing owned by the Operating Partnership; the files which
are in the possession of the Operating Partnership and are required for the
efficient operation of the Shopping Center, including sepias, drawings, surveys,
plans and specifications; and all licenses, permits, certificates of occupancy
(or local equivalent) in the possession of or available to the Operating
Partnership. A list of the Personal Property is attached hereto as Exhibit 4.
"Plan" means the drawing attached as Exhibit 1.
"Pre Closing" means before Closing.
"Pre Closing Partners" means the Partners of the Operating Partnership
immediately prior to the Closing.
"Post Closing Partners" means the Partners of the Operating Partnership
immediately after the Closing, as listed in Schedule 1 hereto.
"Post Closing" means after Closing.
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"Property" means collectively all of the Operating Partnership's rights
and interest in the Real Estate, the Personal Property, the Space Leases and all
the other assets described in Section 2.
"Real Estate" means the land described on Exhibit 2 and all of the
buildings, building and other fixtures (including permanent shopping center
signs), and other improvements constructed thereon.
"REAs" mean, collectively: (i) that certain Operation and Easement
Agreement dated March 27, 1991 between Xxxxxx Xxxxxx Corporation and Bayshore
Gardens Venture, recorded at O.R. 1330, Page 1271 (the "OEA"), (ii) that certain
Management Agreement of even date therewith among such parties and Beztak
Management Company (the "Management Agreement"), and (iii) that certain
Declaration of Easements, Restrictions and Reservations by Bay Gard Inc. dated
August 23, 0000 (xxx "Xxxx Xxxx XXX").
"Service Contracts" means all written or oral agreements (including
purchase orders) pursuant to which goods, services, supplies or other items
whatever are furnished on a continuing basis for the operation of the Real
Estate. A list of such existing Service Contracts as of the date hereof is
attached hereto as Exhibit 5.
"Space Lease(s)" means all tenant space lease(s), license(s),
concessions or other occupancy or use agreements, including all modifications,
addenda and supplements thereto and guarantees thereof, applicable to any part
of the Real Estate. All existing Space Leases as of the date hereof are listed
on Exhibit 3.
"Unadjusted Purchase Amount" means the Agreed Upon Value less the
Contribution Amount less $5 million dollars.
2. CONTRIBUTIONS
2.1 Contribution Amount.
Subject to the terms and conditions of this Agreement, at the Closing,
Contributor shall contribute to the Operating Partnership the Contribution
Amount which shall be calculated as follows:
A sum equal to the outstanding amounts (i.e., principal, all accrued
interest, and any other amounts then due at Closing) under any existing mortgage
or deed of trust (the "Mortgage") encumbering the Property (the "Contribution
Amount"). The Contribution Amount shall be applied at Closing to pay in full the
Mortgage and any other lien as specified in ss.6.3. The amount of the Deposit
shall be applied to pay the Mortgage and shall be a credit to the Contribution
Amount.
2.2 Adjusted Purchase Amount.
Immediately following the Closing, and subject to the terms and
conditions hereof, Contributor shall purchase from each of the Pre Closing
Partners, a portion (or in the case of Xx. Xxxxxxx X. Wafer and any Disqualified
Partner as defined in Section 13.3.3, all) of such Pre Closing Partner's
partnership interest for the amount equal to the Adjusted Purchase Amount as
defined herein, which
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shall be allocated amongst the Pre Closing Partners as set forth in Schedule 1
attached hereto.
2.3 Allocation of Partnership OP Units Following Purchase.
Immediately following the purchase of the partnership interests by the
Contributor under this Section 2.3, the Amended and Restated Limited Partnership
Agreement shall become effective, and each of the Post Closing Partners shall be
allocated OP Units as follows:
(a) The Contributor shall be allocated a number of OP Units equal to the
Contribution Amount plus the Adjusted Purchase Amount (rounded up to the nearest
whole Unit); and
(b) The other Post Closing Partners shall be allocated a number of OP
Units equal to $5 million dollars minus the Excess Adjustment Amount, if any,
(rounded up in each case to the nearest whole Unit) with each individual Partner
allocated a portion of such number of OP Units, pro rata in accordance with the
figures set forth in Schedule 1 hereto.
2.4 Allocation of Income and Loss.
Income and loss shall be allocated to the Pre Closing Partners and to
the Post Closing Partners in respect of the matters prorated hereof in
accordance with the proration allocations.
2.5 Section 754 Election.
The Operating Partnership shall make an election pursuant to Section 754
of the Internal Revenue Code of 1986, as amended, effective for the taxable
period that includes the purchase described in Section 2.2.
2.6 Legal Opinion.
In recognition of the fact that the Contributor will incur substantial
due diligence expenses in connection with the transactions discussed in this
Contribution Agreement, Midway Holdings, Inc., the General Partner of the Pre
Closing Partners, hereby agrees to furnish the Contributor with a legal opinion
from Xxxxxx Xxxxxx, Esq., or from other counsel reasonably satisfactory to the
Contributor, to the effect that all necessary consents from all of the partners
of the Operating Partnership to effect the transactions discussed herein have
been obtained prior to the date hereof. Such legal opinion shall be delivered to
the Contributor concurrently with the execution of this Contribution Agreement.
2.7 Deposit.
Within two (2) business days after Contributor receives a fully-executed
copy of this Agreement, Contributor shall place the Deposit in escrow with
Escrow Agent. In the event Contributor elects to cancel and terminate this
Agreement pursuant to Section 6.4 or any other provision of this Agreement, the
Deposit shall be promptly returned to Contributor by Escrow Agent. Escrow Agent
shall hold the Deposit in accordance with Section 3 below. If Closing occurs,
then the amount of the Deposit,
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including all interest earned thereon, shall at Closing be paid to the Operating
Partnership and said amount shall constitute a decrease to Contributor's
Contribution Amount.
2.8 New Tenants; Credits and Obligations.
2.8.1 The Unadjusted Purchase Amount is based on all of the tenants set
forth in Exhibit 14 (hereinafter collectively referred to as the "New Tenants"
and individually as a "New Tenant") being in place (with no cost to Contributor
or to the Operating Partnership or to any Partner, following Closing, except as
specifically set forth in this Section 2.8) and paying full rent on the Closing
Date under leases which provide for full pro-rata reimbursement for real estate
taxes, CAM and insurance (hereinafter collectively "Escalation Charges"), and
are otherwise in form acceptable to Contributor. Such leases for New Tenants are
hereinafter collectively referred to as the "New Leases" and individually as a
"New Lease."
2.8.2 The Pre Closing Partners, jointly and severally, hereby represent,
warrant, covenant and agree as follows with regard to the New Leases and New
Tenants:
(a) Xxxxxx Fashions, Hallmark, Post Net, Xx-Xxx Fabrics, Coast
Dental and M & M Cafe are now, or as of Closing Time will be, open and paying
full base rent and Escalation Charges (without any credits or offsets), and all
brokerage commissions, landlord work, and/or tenant reimbursement or allowances
(hereinafter collectively referred to as "Landlord Expenses") for or in
connection with such New Leases have been paid in full.
(b) Futon will commence full payment of base rent and Escalation
Charges (without any credits or offsets) on or before May 1, 1998. All Landlord
Expenses for or in connection with such New Lease have been paid in full.
(c) GTE Phonemart will commence full payment of base rent and
Escalation Charges (without any credits or offsets) on or before June 1, 1998.
With regard to GTE Phonemart, except for a tenant build-out allowance of up to
Eight Thousand Three Hundred Dollars ($8,300.00) and a brokerage commission to
Xxxxxxx & Wakefield of up to Seven Thousand Nine Hundred Seventy-Seven Dollars
($7,977.00) (both of which Contributor agrees it will cause the Partnership to
pay as and when due following Closing), all Landlord Expenses for or in
connection with such New Lease have been paid in full. If the Operating
Partnership pays these two amounts prior to the Closing Time, there will be a
corresponding decrease to the Adjustment Amount.
2.8.3 All of the provisions of Section 2.8.2 shall survive Closing. If
following Closing any representation, warranty or covenant of the Pre Closing
Partners and/or of the Operating Partnership in this Agreement should be
breached and in connection with such breach the Contributor or the Operating
Partnership incurs any loss or expense or is required to pay out any money
(including without limitation non-receipt of any base rent or Escalation Charges
after the date above set forth, or payment of any Landlord Expenses not
specifically permitted and provided for above), then in such event,
notwithstanding anything to the contrary in the Partnership Agreement, any
distributions next coming due under the Partnership Agreement to the Pre Closing
Partners shall be reduced (pro rata among all such partners in proportion to
their respective OP Units) by the aggregate amount of any such losses expenses
or payouts (collectively referred to as "Claims"), and the amount of any such
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Claims shall instead be distributed to Contributor (who will be "General
Partner" post Closing) as defined in the Amended and Restated Limited
Partnership Agreement. All such amounts shall be treated as having been
distributed by the Operating Partnership to the Pre Closing Partners and then
paid to the Contributor as compensation for damages.
3. DEPOSIT.
3.1 The Deposit shall be invested in escrow in a sound financial
institution's money market fund or account, which pays interest or dividends, in
Escrow Agent's name separate from its personal and business accounts. All
investment decisions shall be made by Contributor. The Operating Partnership
shall have no control over such investment decisions. If no Closing occurs, all
interest or dividends earned shall be paid to the party entitled to the escrowed
proceeds, which party shall pay any income taxes thereon. The parties shall
furnish the Escrow Agent with their respective tax identification numbers. At
the Closing all interest or dividends earned on the Deposit shall be applied to
the Contribution Amount and shall reduce it accordingly. All escrow fees, if
any, charged by Escrow Agent shall be equally shared by the Operating
Partnership and Contributor.
3.2 Prior to Closing, Escrow Agent shall hold the Deposit as set forth
in Section 3.1 unless (i) Escrow Agent receives notice from Contributor
terminating this Agreement pursuant to Section 6.4, in which event Escrow Agent
shall forthwith return the Deposit to Contributor without requirement of
notifying the Operating Partnership as provided in (ii) below, and without
regard to any objection of the Operating Partnership; or (ii) with regard to all
situations other than in (i) above, unless either the Operating Partnership or
Contributor makes a written demand upon Escrow Agent for the Deposit accompanied
by an affidavit signed by the party making the demand stating sufficient facts
to show that said party is entitled to receive the Deposit pursuant to the terms
of this Agreement. Upon receipt of such demand, Escrow Agent shall give ten (10)
days written notice to the other party of such demand and of Escrow Agent's
intention to remit the Deposit to the party making the demand on the stated
date, together with a copy of the affidavit. If Escrow Agent does not receive a
written objection before the proposed date for remitting the Deposit, Escrow
Agent is hereby authorized to so remit. If, however, Escrow Agent actually
receives written objection from the other party before the proposed date on
which the Deposit is to be remitted, Escrow Agent shall continue to hold the
Deposit until otherwise directed by joint written instructions from Contributor
and the or until a final judgment of an appropriate court. In the event of such
dispute, Escrow Agent may deposit the Deposit with an appropriate court and,
after giving written notice of such action to the parties, Escrow Agent shall
have no further obligations with respect to the Deposit.
3.3 The parties acknowledge that Escrow Agent is acting as a stakeholder
at their request and for their convenience, that Escrow Agent shall not be
deemed to be the agent of either of the parties, and the Escrow Agent shall not
be liable to either of the parties for any act or omission on its part unless
taken or suffered in bad faith or in willful or negligent disregard of this
Agreement. Contributor and the Operating Partnership shall jointly and severally
indemnify and hold Escrow Agent harmless from and against all costs, claims and
expenses, including reasonable attorneys' fees, incurred in connection with the
faithful performance of Escrow Agent's duties hereunder.
3.4 Escrow Agent acknowledges agreement to the provisions of this
Agreement applicable to it by signing on the signature page of this Agreement.
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3.5 If Closing does not take place because of Contributor's default
under this Agreement, the Deposit shall be given and/or paid to the Operating
Partnership as liquidated damages. The receipt of these damages shall be the
Operating Partnership's sole and exclusive remedy and satisfaction for such
default or any other default; and upon such receipt, this Agreement shall be
null and void and of no further force or effect whatsoever.
THE CONTRIBUTOR RECOGNIZES THAT, IF THE CONTRIBUTOR FAILS TO PERFORM ITS
OBLIGATIONS HEREUNDER, THE OPERATING PARTNERSHIP SHALL BE ENTITLED TO
COMPENSATION FOR THE DETRIMENT CAUSED THEREBY. HOWEVER, BOTH PARTIES AGREE THAT
IT IS EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE EXTENT OF THE
DETRIMENT AND, TO AVOID SUCH DIFFICULTIES, THE PARTIES AGREE THAT, IF THE
CONTRIBUTOR FAILS ITS OBLIGATIONS HEREUNDER, THE OPERATING PARTNERSHIP SHALL BE
ENTITLED TO RETAIN THE ESCROW DEPOSIT MADE PURSUANT TO THIS AGREEMENT AS
LIQUIDATED DAMAGES. BOTH PARTIES AGREE THAT SUCH AMOUNT STATED AS LIQUIDATED
DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH THE OPERATING PARTNERSHIP
MIGHT OTHERWISE BE ENTITLED BY VIRTUE OF THIS AGREEMENT OR BY OPERATION OF LAW.
/s/ JSS [Operating Partnership's Initials] _______________________________
[Contributor's Initials] /s/ BK.
If Closing shall occur, the Deposit and all interest earned thereon
shall be applied to the Contribution Amount. In all other events (including
without limitation a cancellation of this Agreement pursuant to a right granted
Contributor in this Contribution Agreement), the Deposit shall be returned to
Contributor. If the Operating Partnership is in default with respect to the
performance of any of its obligations hereunder or if all closing conditions to
the Operating Partnership's obligations to consummate the Closing have been
satisfied and if the Operating Partnership shall fail or refuse to consummate
the Closing, then the Contributor, at its election and as its sole and exclusive
remedy, may either (i) waive such objections, defects or imperfections of the
Operating Partnership's performance and consummate the Closing with respect
thereto; (ii) elect to seek specific performance of this Contribution Agreement
in addition to all remedies of law and in equity that Contributor may have; or
(iii) terminate this Agreement, whereupon the Operating Partnership shall not
have any further liability of any kind to the Contributor. Notwithstanding the
foregoing, in the event Contributor sues for damages in lieu of specific
performance, the Operating Partnership's liability for damages shall not in such
event exceed the sum of Two Hundred Thousand Dollars ($200,000.00).
4. MANAGEMENT AND CONDITIONS PRIOR TO CLOSING.
4.1 Until Closing, the Operating Partnership shall at its own expense,
comply with all its obligations under all Space Leases and Service Contracts and
the REAs. The Operating Partnership shall operate the Shopping Center in a
manner consistent with good practice and in accordance with its insurance
company's requirements and applicable federal, state and local laws, ordinances
and requirements and the Operating Partnership shall maintain the Real Estate
and the Personal Property in the same condition as on the date hereof,
reasonable wear and tear excepted, and shall keep the same fully insured against
fire and extended coverage.
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4.1.1 The Operating Partnership also covenants and agrees that,
following a date which is five (5) business days prior to the end of the
Inspection Period (the "Cutoff Date") and prior to Closing, it shall not take
any of the following actions without the prior written consent of Contributor:
(a) effect or permit any change in any of the Space Leases or Service Contracts
or the REA; (b) renew or extend the term of any Service Contract or Space Lease;
(c) enter into any new Space Lease or Service Contract or cancel or terminate
any REA or any Space Lease or Service Contract; (d) enter into, extend or modify
any other agreement affecting the Property the term of which would extend beyond
the Closing Date. Prior to the Cutoff Date, the Operating Partnership may take
any of the foregoing actions without Contributor's consent, provided that (i)
such actions are bona fide, taken in good faith in the exercise of the Operating
Partnership's reasonable judgment, and (ii) Contributor is furnished with a true
and complete copy of any such new, modified or terminated lease or other
instrument within two (2) business days after execution of same.
4.1.2 In the event that prior to Closing, the Operating
Partnership executes any new lease that is not a New Lease, as defined in
Section 2.8.1 (or approved replacement thereof) and has been consented to in
writing by Contributor ("Additional Lease"), at Closing all reasonable, bona
fide third-party out-of-pocket expenses as to such Additional Lease, including
but not limited to brokerage commissions, permit fees, architect and engineer
fees, tenant improvement costs and landlord work shall be, if paid Pre Closing,
a decrease in the Adjustment Amount. If such expenses have not been paid Pre
Closing, they will be assumed as obligations of the Post Closing Operating
Partnership.
4.2 Except as otherwise stated to the contrary in this Agreement,
Contributor shall Close with the Property in AS IS physical condition as it
exists on the date hereof, subject to reasonable wear and tear between now and
Closing but subject also to the provisions of Section 5.1 and Section 6.4.
4.3 The Operating Partnership agrees that: (a) on and after the date
hereof, Contributor and its designated representatives shall have access to the
Property for the purpose of making engineering, survey or other inspections and
independent investigations; and (b) the Operating Partnership will provide
Contributor promptly and without charge with other relevant or necessary
information within its possession or control with respect to the Property,
including (without limitation) full and accurate copies of Space Leases, Service
Contracts, title information or instruments, and books and operating records of
the Shopping Center. Contributor agrees to hold the Operating Partnership
harmless from any personal injury or property damage caused by Contributor or
its designated representatives on the Property in doing any testing, inspections
or surveys.
4.4 Contributor shall have the Inspection Period within which to inspect
and examine the Real Estate and Personal Property, and within which to review
and examine the Space Leases and Service Contracts and Landlord's correspondence
files regarding such Space Leases and Service Contracts.
4.4.1 In the event that during the Inspection Period,
Contributor, in its sole and exclusive judgment, determines not to close the
transactions provided for herein, for any reason or for no reason, or if
Contributor is not satisfied with the condition of the Real Estate or Personal
Property or Space Leases or Service Contracts then, on or prior to the last day
of the Inspection Period, Contributor shall have the right to cancel and
terminate this Agreement without liability to Contributor by so sending notice
to the Operating Partnership with a copy to Escrow Agent on or prior to such
day.
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4.4.2 In the event Contributor does not cancel and terminate this
Agreement prior to the end of the period set forth in Section 6.4, this
Agreement shall remain in full force and effect.
4.4.3 If Contributor cancels and terminates this Agreement
pursuant to this Section 4, all non-public information obtained by Contributor
from the Operating Partnership during either the Inspection Period or Review
Period shall be kept confidential, except to the extent disclosure is required
pursuant to applicable law, regulation or court proceeding.
4.4.4 Contributor shall not conduct any test which requires
physical invasion of any of the Property without first obtaining the Operating
Partnership's written approval for the specific test to be performed, which
approval may be withheld or conditioned in the Operating Partnership's
reasonable discretion. All such inspections, investigations and examinations
shall be undertaken at Contributor's sole cost and expense. In no event shall
Contributor disturb or interfere with the rights of any tenant of the Property.
All site inspections and tests shall be scheduled so that a representative of
the Operating Partnership shall have the opportunity to be present. Contributor
agrees to give the Operating Partnership at least forty-eight (48) hours
telephonic notice before making any on-site visit with a Space Tenant occupying
less than thirteen thousand (13,000) square feet. Upon any termination of this
Agreement: (i) Contributor shall promptly following request deliver to the
Operating Partnership copies of all Contributor's inspection reports; and (ii)
Contributor shall restore and repair any damage caused by Contributor's
inspections. Notwithstanding any contrary provision of this Agreement,
Contributor's performance of its obligations under the preceding sentence (the
"Contributor's Termination Obligations") shall survive any termination of this
Agreement. Contributor (and by execution of this Agreement, Kimco Realty
Corporation) agrees to indemnify the Operating Partnership and hold the
Operating Partnership harmless from and against any and all damages, claims,
liabilities, expenses and other losses which may be claimed against or be
incurred by the Operating Partnership as a result of Contributor's physical
testing on the Property or breach of any of Contributor's obligations above. The
foregoing indemnification and hold harmless shall include reasonable attorneys'
fees and other reasonable costs and expenses. This provision shall survive
Closing and termination of this Agreement.
5. ADJUSTMENTS AND PRORATIONS.
5.1 The Pre Closing Partners shall be entitled to an adjustment of the
Unadjusted Purchase Amount based upon revenues and expenses allocable to the
period prior to Closing from the operation of the Property which are received or
paid post Closing, and a similar adjustment for revenues and expenses allocable
to the period post Closing that are received and paid pre Closing as provided
herein. The Pre Closing Partners shall be entitled to all revenue, and
responsible for all expenses, allocable to the period ending at 12:00 A.M. on
the day Closing occurs. At the Closing all items of revenue and expense with
respect to the Partnership assets listed below shall be prorated in accordance
with the foregoing principles or in accordance with the rules for specific items
set forth hereafter:
5.1.1 The Operating Partnership shall arrange for a billing under
all those Service Contracts for which fees based on usage and with utility
companies for a billing for utilities, to include all utilities or service used
up to the day Closing occurs, and any unpaid Pre Closing expenses shall increase
the Adjustment Amount. In the event any of the Service Contracts set forth in
Exhibit 5 cover
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periods beyond the Closing the same shall be prorated on a per diem basis and
any amount owed Post Closing that is a Pre Closing expense shall be an increase
in that amount of the Adjustment Amount; any amount prepaid that is a Post
Closing expense shall be a decrease in the Adjustment Amount. All Pre Closing
expenses shall be allocated to the Pre Closing Partners in accordance with the
terms of the Partnership Agreement in effect prior to the Closing. All utility
deposits of Operating Partnership on the Closing Date shall either be withdrawn
and paid to Pre Closing Partners or the amount of such deposits shall be a
decrease in the Adjustment Amount.
5.1.2 Real estate taxes and personal property taxes on the
Property shall be prorated based upon the period (i.e., calendar or other tax
fiscal year) to which same are attributable, regardless of whether or not any
such taxes are then due and payable or are a lien. Tax prorations shall be based
on gross taxes less maximum available discount (4%). As set forth in 5.1.1
above, expenses properly allocated to the period Post Closing and prepaid shall
decrease the Adjustment Amount accordingly, and expenses properly allocated to
the period Pre Closing that are owed shall increase the Adjustment Amount
accordingly. In the event that as of the date Closing occurs the actual tax
bills for the tax year or years in question are not available and the amount of
taxes to be prorated as aforesaid cannot be ascertained, then rates, mileage's
and assessed valuation of the previous year, with known changes, shall be used;
and after the Closing occurs and when the actual amount of taxes for the year or
years in question shall be determinable, such taxes will be re-prorated between
the time periods before and after Closing to reflect the actual amount of such
taxes. Notwithstanding the preceding provisions, Section 8.7 shall govern with
respect to all general, special and/or betterment assessments on the Property at
the date of Closing. Notwithstanding the foregoing, there shall be no proration
of real estate taxes to the extent that same are payable by Xxxxxxxx. In
addition, annual tax reimbursement from Tenants (Publix & T.J. Maxx) will be
prorated when collected and amounts due Pre Closing Partners will be distributed
in cash within 30 days of receipt.
5.1.3 Percentage rent (i.e., that portion of the rent payable to
the landlord by the tenant under a Space Lease which is a percentage of the
amount of sales or of the dollar amount of sales), if any, payable under each
Space Lease shall be prorated with respect to the lease year thereunder in which
the Closing occurs on a per diem basis as and when collected. Any percentage
rent collected by the Operating Partnership including any percentage rent which
is delinquent and pertaining to (i) an entire lease year or accounting period of
a tenant under a Space Lease which ends on a date prior to the date of Closing,
and (ii) that portion of a lease year or accounting period of such tenant
covering a period prior to the date of Closing where such lease year or
accounting period begins prior to the date of Closing and ends thereafter shall
in both cases (subject to Section 5.3.1) be distributed in cash to the Pre
Closing Partners within 30 days of receipt.
5.1.4 Gas, water, electricity, heat, fuel, sewer and other
utilities charges for which no billing based upon actual usage can be obtained
with due diligence, and the governmental licenses, permits and inspection fees
and operating expenses relating to the Shopping Center, shall be prorated on a
per diem basis and on appropriate adjustment to the Adjustment Amount shall be
made as set forth in 5.1.1.
5.1.5 Common area maintenance expenses and charges, including all
expenses and charges payable by or to the Operating Partnership under or in
connection with the REAs, shall be prorated. All common area expense payments
made by each tenant and such charges paid under its
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Space Lease for the entire lease year during which the Closing occurs, and all
common area maintenance payments to the Operating Partnership by other parties
under the REA, including in each case end-of-year adjustments, if any, shall be
prorated in the following manner: Not later than three (3) days prior to
Closing, Pre Closing Partners shall deliver to Contributor a detailed
reconciliation showing common area charges ("CAM Charges") billed to Shopping
Center tenants (or each other party to a REA, hereafter a "REA Party") required
to pay CAM Charges for 1997 and through the Closing Date and showing all CAM
Charges incurred by the Operating Partnership for such period prior to Closing.
In addition, Pre Closing Partners shall provide to Contributor invoices and
other evidence documenting CAM Charges as may reasonably be requested by
Contributor. Any excess CAM Charges (or estimates for same) received by the
Operating Partnership prior to Closing over the amount of the Pre Closing CAM
Charges payable by such tenants, as evidenced by the bills and computations
delivery by the Operating Partnership at Closing, increase the Adjustment
Amount. Any additional CAM Charges due from tenants for periods Pre Closing
shall be billed to tenants (or a REA Party) as and when appropriate for annual
reconciliation, and shall be distributed to the Pre Closing Partners pro rata
within thirty (30) days if , as and when received by the Operating Partnership
after the Closing. The Operating Partnership shall not be required to institute
any action or proceeding to collect any pre Closing CAM charges.
5.1.6 All brokerage and leasing commissions or other compensation
due or accrued prior or subsequent to the date of Closing to any broker, agent,
or other person in connection with the Property for brokerage or other services
rendered to the Operating Partnership, or to any Pre Closing Partner or Post
Closing Limited Partner of the Operating Partnership, in connection with the
management and/or leasing of the Property prior to Closing shall increase the
Adjustment Amount to the extent not paid by the Operating Partnership prior to
Closing (it being agreed that payment of all of the foregoing shall be the sole
responsibility of Pre Closing Partners). The foregoing shall not apply to bona
fide third-party out-of-pocket expenses regarding Additional Leases as set forth
in Section 4.1.2, or to those commission expenses set forth in Section 2.8 which
shall be paid Post Closing by the Operating Partnership and shall not cause an
increase or a decrease in the Adjustment Amount.
5.1.7 All prepaid rentals, other prepaid payments, security
deposits, electric, gas, sewer and water deposits deposited with the Operating
Partnership by tenants, (including all accrued interest on all of the foregoing,
unless the Operating Partnership is entitled to retain same and evidence that
same has been retained in cash by the Operating Partnership is presented at
Closing) under any Space Leases, license agreements or concession agreements
relating to the Property, shall be set forth in Exhibit 17 to this Agreement and
shall be an increase to the Adjustment Amount.
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5.1.8 Pre Closing Partners shall be responsible for any charges,
salaries, vacation pay or fringe benefits of employees of any Pre Closing
Partners prior to or following the Closing and none of the foregoing shall be
prorated.
5.2 All prorations (and the resultant increase or decrease to the
Adjustment Amount) to be made under the foregoing provisions shall be made on
the basis of a written statement or statements delivered to Contributor by Pre
Closing Partners and approved by Contributor. In the event any prorations,
apportionments or computation shall prove to be incorrect for any reason, then
either Contributor or Pre Closing Partners shall be entitled to an adjustment to
correct same, provided that a written demand to such adjustment is made within
six (6) months after the erroneous payment or computation was made. Any
adjustment that results in the Pre Closing Partners being required to return
cash shall be made by withholding of distributions as provided in Section 2.8.3
and any adjustment that requires Contributor to pay an additional amount to Pre
Closing Partners shall be paid by Contributor within thirty (30) days after said
demand.
5.3 All accounts receivable flowing from the Property shall be disposed
of as follows:
5.3.1 Contributor and Pre Closing Partners agree to treat all
base or minimum rental payments received from a tenant as first applicable to
base or minimum rent which was owed by that tenant, if any, for the month in
which Closing occurs until the base or minimum rental amount due for such period
has been collected. In the event that there remains any unpaid base or minimum
rent for a period prior to the month of Closing, all payments of base or minimum
rent received from such tenant shall be applied to sums owed subsequent to
Closing before any part thereof shall be treated as belonging to the Pre Closing
Partners. In the event that there remains any unpaid tenant receivable other
than base or minimum rent (including without limitation any tax, CAM, insurance
or percentage rent payments) for any period prior to the Closing, all payments
received from any tenant in arrears shall be applied to any sums owed by such
tenant subsequent to Closing (whether base or minimum rent or any other amount)
before any part thereof shall be treated as belonging to the Pre Closing
Partners. Any sums belonging to the Pre Closing Partners in accordance with this
Section 5.3.1 shall be paid to the Pre Closing Partners pro rata, the amounts to
be derived with the Percentage for Adjustments set forth in Schedule 1 attached
hereto.
5.3.2 In the event that any tenant of the Operating Partnership
shall hereafter apply or shall have heretofore applied for relief under the
provisions of any bankruptcy or similar laws for the protection of debtors, the
provisions of Section 5.3.1 shall not apply, and the Prior and Post Closing
Partners shall have the right to seek collection of their respective accounts,
their entitlements being determined by the Closing and the other provisions of
this Agreement.
5.3.3 Neither the Contributor nor Pre Closing Partners shall have
the right to enter into any transactions that purport to compromise claims
belonging to the other, without the other party's prior written consent.
5.3.4 If at the time of Closing, any tenants (or REA Parties) owe
the Operating Partnership any money, the Operating Partnership shall have the
right, subsequent to the Closing, to collect such sums directly from the tenants
including bringing lawsuits against the tenants (or REA Parties) for such
collection provided that expenses incurred will be equitably apportioned between
Pre and Post
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Closing Partners based upon amounts owed to the Pre and Post Closing Partners,
if any; provided, however, Pre Closing Partners agree that any such legal action
or collection shall not include any disturbance of the possession, use or
occupancy of the tenants or any right to evict the tenants, whether pursuant to
the lease provisions or otherwise, and the Operating Partnership shall not be
obligated to join in any lawsuit or in any other way to participate or cooperate
with Pre Closing Partners in those collection attempts, unless required to by
law for Pre Closing Partners or for the Operating Partnership to maintain its
action, and in such event, Operating Partnership will join in such a lawsuit or
action only if the same does not include or require disturbance of the
possession of any tenants, as aforesaid.
5.4 At or prior to the time of Closing, the Operating Partnership shall
distribute all cash in hand or in bank accounts, other than tenant security
deposits, to the Pre Closing Partners.
5.5 Operating Partnership is entitled to certain credits against impact
fees charged by Manatee County (the "Credits"), which credits, Pre Closing
Partners warrant, are applicable solely to the undeveloped property. All such
Credits shall be transferred by the Operating Partnership at Closing or
thereafter as directed by Pre Closing Partners to the Pre Closing Partners or
their designee. The Operating Partnership and Contributor shall cooperate
(without any obligations to incur any expense) with Pre Closing Partners and/or
their designee as to any transfer of such Credits.
6. TITLE AND SURVEY.
At Closing, as a condition to Contributor's obligations hereunder, the
Partnership (with Contributor as a new general partner) shall have valid,
marketable and insurable fee title to the Real Estate subject only to the Space
Leases and the Permitted Exceptions and same shall be available for
Contributor's inspection.
6.1 Promptly following the execution of this Agreement, the Operating
Partnership shall obtain and deliver to Contributor any survey of the Real
Estate in the Operating Partnership's possession or control (the "Survey"); it
being understood that Contributor may at its option obtain a new or updated
survey; and Contributor shall apply to Chicago Title Insurance Company (the
"Title Company") for a binding, irrevocable commitment for an ALTA Form B Fee
Title Insurance Policy to be issued to Contributor (the "Title Commitment") in
the amount of FOURTEEN MILLION FOUR HUNDRED FIVE THOUSAND DOLLARS
($14,405,000.00) effective as of the date of Closing, evidencing that the
Operating Partnership owns and could, if it so desired, convey valid and
marketable fee title to the Real Estate, free and clear of all encumbrances
except the Space Leases and Permitted Exceptions.
6.2 Within ten (10) days after Contributor's receipt of both the Title
Commitment and Survey (if obtained), but in no event later than the end of the
Inspection Period, Contributor shall furnish the Operating Partnership with a
schedule of (i) any liens, encumbrances or other title exceptions or state of
facts shown on the Title Commitment or Survey, which Contributor, in its sole
and exclusive judgment, does not approve, finds unsatisfactory and (ii) any
title company requirements which Contributor, in its sole and exclusive
judgment, contends the Operating Partnership must satisfy for Contributor to
become General Partner. In addition, if Contributor has requested endorsements
providing coverage for (a) a perimeter metes and bounds description and
contiguity between the
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parcels which comprise the Real Estate (if comprised of separate parcels) and
between the Real Estate and public streets or (b) access from the Real Estate to
a public street, or (c) a survey endorsement, or (d) "Fairway" endorsement, or
(e) any other endorsements available in Florida, and the title company has
refused to grant such coverages, Contributor shall so inform the Operating
Partnership.
6.3 The Operating Partnership shall have a period of fifteen (15) days
following receipt of said schedule to remove, correct, cure or satisfy to
Contributor's satisfaction, any survey or title exceptions or Title Company
requirements set forth on said schedule and to obtain from the Title Company the
endorsements set forth on said schedule. The Operating Partnership shall not be
required to remove any title objections, provided that, notwithstanding the
foregoing, if any objection consists of a lien in a specified or readily
ascertainable dollar amount, including the Mortgage, the Operating Partnership
shall pay that amount as specified in Section 2.1, and the Operating Partnership
shall be required to remove same, at or prior to Closing, by payment, by bonding
or by causing the Title Company to insure, or to commit to insure, over the same
or otherwise. If the Operating Partnership fails to remove, at or prior to
Closing, any such lien, Contributor may, but shall not be obligated to, increase
the Contribution Amount, up to the Agreed Upon Value, in the amount required to
remove same. If such increase of the Contribution Amount results in a negative
amount for the Unadjusted Purchase Amount, such negative amount shall constitute
an addition to the Excess Adjustment Amount. For purposes of this Section 6, a
deed of trust or similar instrument shall be deemed to be a mortgage.
6.4 In the event that the Operating Partnership is unable or (subject to
its obligations above set forth) elects not, within said fifteen (15) day
period, to remove, correct, cure or obtain endorsements as aforesaid
(hereinafter called "title correction"), Contributor shall have the right at its
sole option either (a) to terminate this Agreement, in which event the Deposit
shall be returned to Contributor and neither party shall, thereafter, have any
further liability hereunder, or (b) to accept such stated facts and such title
as is disclosed by the Survey and Title Commitment without title corrections
thereby waiving any rights against Operating Partnership and the Pre Closing
Partners with respect thereto. There shall be a corresponding increase in the
Contribution Amount for unremoved mortgages or other liens as above set forth.
Said election shall be made by Contributor within ten (10) days following
Contributor's receipt of written notification by the Operating Partnership that
the Operating Partnership has not been able to or will not obtain title
correction.
6.5 In the event that the Operating Partnership shall undertake title
correction as aforesaid, and shall be successful, this Agreement shall continue
in full force and effect and Contributor shall close the transaction
contemplated hereby in accordance with the terms hereof. In the event that the
Operating Partnership shall only be partially successful in obtaining title
correction, Contributor shall have the same alternative rights as Contributor
would have in the event the Operating Partnership had declined to seek title
correction (as set forth in the preceding paragraph of this Section).
Contributor shall make its election within ten (10) days after Contributor's
receipt of written notice from the Operating Partnership to Contributor of the
extent to which title has been corrected.
7. HAZARDOUS WASTES.
The Operating Partnership and the Pre Closing Partners, jointly and
severally, represent and warrant (and it shall be a condition precedent to
Contributor's obligations at Closing) that to the Operating Partnership's best
knowledge the Property is in compliance with and does not violate any
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provisions of the Federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (as the same may be amended from time to time) and/or of
any other environmental or other statute relating to "hazardous" or "toxic"
substances or any similar statute or statutes enacted in the State in which the
Property is located; and that the Operating Partnership has never used the
Property for the dumping or storage of any hazardous or toxic substances or
wastes and knows of no such use by any other party. The provisions of this
Section 7 shall survive the Closing for a period of nine (9) months.
Notwithstanding any provision contained in this Agreement to the contrary, in
the event that any environmental inspection, study, report or test results
disclose facts or circumstances which cause the basis for Contributor to
reasonably believe that additional testing, study or investigation is required,
Contributor may extend the Inspection Period for a reasonable amount of time not
to exceed an additional thirty (30) days.
8. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE PRE
CLOSING PARTNERS.
The Operating Partnership and the Pre Closing Partners, jointly and
severally, covenant, represent and warrant to Contributor the following, all of
which shall be required to be true and correct in all material respects on and
as of the Closing Date as a condition precedent to Contributor's obligations
hereunder, and all of which shall survive the Closing:
8.1 Organization; Authority. The Operating Partnership has been duly
formed and is validly existing limited partnership in the state of Florida, in
good standing, and with requisite power to enter this Contribution Agreement and
all agreements contemplated hereby. The persons and entities executing this
Contribution Agreement and all agreements contemplated hereby on behalf of the
Operating Partnership have the power and authority to enter into this
Contribution Agreement and such other contemplated agreements and are the
persons listed in Schedule 1 there being no other partners to the Operating
Partnership; and
8.2 The Operating Partnership has obtained all consents required to
permit all of the transactions contemplated by this Agreement (including but not
limited to the admission of Contributor as the sole general partner of the
Partnership) and required under any partnership agreement, shareholder
agreement, limited liability company agreement, covenant, charter, declaration
of trust, or other agreement concerning it or to which it is a party or which is
binding upon it or by any law or regulations or any judgment, order or decree of
any governmental body, agency or court having jurisdiction, over the Operating
Partnership, and this Agreement does not require (i) the consent or approval of
any public or private authority which has not already been obtained by the
Operating Partnership, or (ii) a subdivision in order to comply with the
subdivision regulations of the authorities having jurisdiction; or if required
it will be obtained by the Operating Partnership prior to the Closing.
8.3 The Operating Partnership and the Pre Closing Partners, jointly and
severally, makes the representations and warranties to the Contributor as
provided in Exhibit 12 attached hereto.
8.4 The Operating Partnership has not received notice from any
governmental authority, mortgagee, tenant, insurer or other party (i) that
either the Real Estate or the use or operation of the Shopping Center is
currently in violation of any zoning, environmental or other land use
regulations, and to the Operating Partnership's knowledge no such notice has
been issued; (ii) that the Operating
15
Partnership is currently in violation or with the passage of time will be in
violation of the requirements of any ordinance, law or regulation or order of
any government or any agency, body or subdivision thereof (including, without
limitation, the local building department) or the recommendations of any
insurance carrier or Board of Fire Underwriters affecting the Shopping Center,
or that any investigation has been commenced, or is contemplated, regarding any
such possible violation; or (iii) asserting that the Operating Partnership is
required to perform work at the Shopping Center and to the Operating
Partnership's knowledge no such notice has been issued. If the Operating
Partnership receives such a notice or a violation is issued or filed prior to
Closing, the Operating Partnership shall promptly notify Contributor and shall
promptly cure any violation, and in the event that such cure would require an
alteration of or addition to the Real Estate or Personal Property or otherwise
require an expenditure to cure the violation, the cost of which would exceed
$50,000.00, then the Operating Partnership and Contributor shall have the
benefit of the provisions contained in Section 9.2. Notwithstanding the
foregoing, the Operating Partnership shall have the right to contest any
violation if the same does not delay the Closing and if the violation is cured
or removed prior to the Closing.
8.5 There is no pending litigation brought by or against the Operating
Partnership or affecting the Property (including, without limitation, the Real
Estate and the Space Leases) or the operation of the Shopping Center (including
without limitation any bankruptcy proceedings of existing Space Lease tenants)
except as set forth on Exhibit 6. The Operating Partnership has no knowledge of
any other such threatened litigation which might result in a judicial or
equitable mortgage against the Real Estate, or gives rise to a set-off or
defense to any tenant under the Space Leases, or prevents the transactions
provided for herein, or which might result in a consummation of judgment against
the Operating Partnership. If the Operating Partnership is served with process
or receives notice that litigation may be commenced against it, the Operating
Partnership shall promptly notify Contributor.
8.6 The Space Leases described in Exhibit 3 comprise all the Space
Leases presently existing and each is in full force and effect; no Space Lease
has been modified or supplemented except (if at all) as set forth on Exhibit 3;
no rent has been paid more than one month in advance by any tenant, and no
tenant is entitled to any "free rent" period, defense, credit, allowance or
offset against rental; to the Operating Partnership's knowledge, the information
set forth in Exhibit 3 is true, correct and complete. Although summaries of
Space Leases have been provided by the Operating Partnership, Contributor
assumes responsibility to review all Space Leases provided to Contributor and
verify that the information set forth in the summaries does not conflict with
the terms of the Space Leases. To the Operating Partnership's knowledge, there
is no default of either landlord or tenant under any of the Space Leases, and no
state of facts which with notice and/or the passage of time would ripen into a
default, except as set forth on Exhibit 3. There are no persons or entities
entitled to possession of the Property other than those listed on Exhibit 3. No
work or installations is required of the Operating Partnership except as
specified (if at all) in the Space Leases or in Section 2.8, and in any case,
except as set forth in Section 2.8. The Operating Partnership has fully
completed all tenant improvements specified in any Space Lease to be the
responsibility of the landlord and has paid all tenant construction allowances.
No leasing commissions will become due in connection with any Space Lease or the
renewal thereof following the Closing, and no understanding or agreement exists
in regard to payment of any leasing commissions or fees for future Space Leases
(except for commissions for New Leases which Contributor has knowledge of and
are expressly set forth in Section 2.8.2). There is no Shopping Center
merchant's association.
16
8.7 The Operating Partnership will pay all general, special and
betterment assessments on the Property which are due and payable prior to the
date of Closing and same shall be expenses allocated to Pre Closing Partners;
and if on the date of Closing the Property shall be affected by an assessment or
assessments, which is (or are) or may become payable in annual installments, of
which the first installment is then a charge or lien, or has been paid, then for
the purposes of this Agreement all the unpaid installments of any such
assessment, including those which are to become due and payable after the date
of Closing, shall be deemed to be due and payable and to be liens upon the
Property affected thereby and shall be paid and discharged by the Operating
Partnership at Closing and same shall be expenses allocated to Pre Closing
Partners.
8.8 There are not now and will not be on the date of Closing any
agreements or understandings relating to the Property that will be binding after
Closing, except for the REAs, Permitted Exceptions, Space Leases and Service
Contracts; and no alterations, amendments or waivers pertaining to the foregoing
will be made by the Operating Partnership except with Contributor's written
approval prior to the date of Closing.
8.9 The list of and information with respect to Service Contracts in
Exhibit 5 is true and complete. To the Operating Partnership's knowledge, there
is no material default, or event that with notice or lapse of time or both would
constitute a material default, by any party to any Service Contract. The
Operating Partnership has received no notice that any party to any Service
Contract intends to cancel or terminate such agreement.
8.10 All permits and authorizations with respect to the Shopping Center
now in effect will be in full force and effect as of and will be made available
for inspection to Contributor on the date of Closing. Pending applications, if
any, will not be withdrawn or permitted to lapse without Contributor's consent,
and the Operating Partnership shall promptly notify Contributor of all pending
applications.
8.11 True and complete copies of the most recent real property tax
xxxx(s) for the Real Estate (which include xxxx[s] for all real estate taxes
from all municipal authorities assessing same) are annexed as Exhibit 8. No tax
reduction proceedings are pending or outstanding. The foregoing are all the
taxes on the Shopping Center or the income therefrom other than Federal and
state income taxes on net taxable income for the periods covered in such bills,
other than sales taxes due to the State of Florida. There are no special
assessments or betterment assessments (whether payable in installments or
otherwise) applicable to the Real Estate and no tenant is entitled to any refund
of any tax or other payment by reason of tax reduction proceedings affecting
current or prior years. Subject to the provisions of Section 5.1.2, all taxes
and tax refunds charged or collected with respect to the Property shall be
allocated to the Pre and Post Closing Partners in accordance with their
respective periods of the Operating Partnership interests.
8.12 The Operating Partnership, at the time of Closing, will have no
material liability (whether direct or indirect, matured or contingent) which
reduces the value (directly or indirectly) of the Contributor's partnership
interest by an amount that is greater than any such reduction in value, if any,
due to such liability that the Contributor would have had, if the Property had
been conveyed to a newly formed partnership with no other liabilities with the
same partners as the Operating Partnership immediately after the Closing.
17
8.13 No property other than the Real Estate is included in the tax
assessment of the Real Estate, and there are no unpaid assessments for utility
installations. In amplification and not in limitation of the foregoing, there
are separate tax lots and assessments for each of Lots 1 through 6 in the Plat
of Bayshore Gardens Shopping Center recorded at Plat Book 30, Page 92, Manatee
County Records.
8.14 The Operating Partnership has no employees or hired persons. The
Operating Partnership shall have no obligation, liability or responsibility with
respect to charges, salaries, vacation pay, fringe benefits or like items of
on-site employees or hired persons subsequent to Closing, nor with respect to
any management or employment agreements with respect to the Property.
8.15 The persons or parties signing this Agreement on behalf of the
Operating Partnership have the power and authority to enter into this Agreement,
to bind the Operating Partnership to the provisions hereof and to comply with
the obligations hereunder.
8.16 Neither the execution and delivery of this Agreement nor the
consummation of the transactions herein contemplated will conflict with, result
in a breach of or constitute (with or without the giving of notice or the
passing of time, or both) a default under, or otherwise adversely affect any
Space Lease, any REA (subject to obtaining consent of Target as set forth in
Section 13.3.11), or any other contract, agreement, instrument, license or
undertaking to which the Operating Partnership or any of its affiliates is a
party or by which any of them or any of their respective properties or assets is
or may be bound or that relates to the Property in any respect.
8.17 The Operating Partnership has made all required filings and paid
all franchise and other taxes.
8.18 No tenant under a Space Lease (or REA Party) or other person has
any option, right of first refusal or other right to purchase the Property or
any part thereof or interest therein in the event of a change in the Operating
Partnership, its structure or its General Partner, or in the event of sale. In
the event any such option, right of first refusal or other right to purchase
does exist on the date hereof, the Operating Partnership shall at Closing
deliver to Contributor a written and recordable instrument, signed by the holder
thereof, irrevocably and unconditionally waiving, canceling, terminating and
annulling any such option, right of first refusal or other right.
8.19 Intentionally omitted.
8.20 The Operating Partnership has not received any actual notice
claiming that any construction and/or maintenance work required by the terms of
any or any REA or other Permitted Exceptions, or by any building, zoning or
other law, ordinance or regulation affecting the Property, including without
limitation any roadway and utility line construction on the Shopping Center
and/or adjacent property has not been satisfactorily completed. The Operating
Partnership has no actual notice of any charges, liens or assessments against
the Property or against the Operating Partnership for any of same.
8.21 With respect to the REAs:
(a) To the knowledge of the Pre Closing Partners, each REA is in
full force and effect and has not been modified or supplemented except as set
forth in a recorded instrument.
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(b) To the knowledge of the Pre Closing Partners, there is no
default under any REA of either the Operating Partnership or any REA Parties,
and no state of facts which with notice and/or the passage of time would ripen
into a default.
(c) To the knowledge of the Pre Closing Partners, no unperformed
work or installations or unpaid amounts is required of or due from the Operating
Partnership under any REA; and, with regard to the OEA and Management Agreement,
there exists no unresolved dispute (including without limitation any audit
claim) with Target concerning past or current amounts due the Operating
Partnership or any predecessor in interest.
(d) To the knowledge of the Pre Closing Partners, the Operating
Partnership is currently (i) the "Approving Party" for the Developer Tract under
the OEA, (ii) successor-in-interest to all rights of Developer under the OEA,
and an affiliate of the Operating Partnership is the Operator under the
Management Agreement; and the Operating Partnership has full right, power and
authority to assign all of such positions, interests and titles, if it would
choose to do so, without the requirement of consent from any other REA Party or
any other party (except that Target must grant approval for any other entity to
become the Operator).
(e) Said Operator, is currently performing all common area
maintenance and carrying all common area liability insurance required by or
under the OEA or Management Agreement for the Developer Tract and the Target
Tract.
(f) There have been no Common Area Rules adopted under Section
6.24 of the OEA.
(g) Circumstances have not arisen that would permit an exercise
by Developer of any Repurchase Option set forth in OEA Section 6.28; and the
Repurchase Option right in said Section 6.28(B) remains in full force and
effect.
(h) All obligations of Developer under that certain Site
Development Agreement of even date with the OEA, and between the same parties
thereto, have been fully performed and such agreement has terminated.
(i) Attached as Exhibit 7 is a true copy of the most current
Budget under the Management Agreement, and same has been approved by Target.
At Closing, the Operating Partnership shall deliver to Contributor a certificate
reconfirming all the foregoing representations as true, correct and complete in
all material respects as of the date of Closing.
Whenever any representation or warranty of the Operating Partnership is
stated in this Agreement to be "to the knowledge of the Operating Partnership,"
such words shall mean and be strictly limited and confined to the actual
knowledge of Xxxx Xxx Xxxxxx (the "Pre Closing Partner's Representative"). The
Operating Partnership represents that the Pre Closing Partner's Representative
is the only partner or principal of the Operating Partnership responsible for
operation of the Property and who has any material knowledge concerning same.
Whenever it is stated in this Agreement that the Operating Partnership has
received no notice of a particular matter, it is intended to mean only that Pre
Closing Partners' Representative has received no written notice of such matter.
Information
19
actually known to the Operating Partnership or to the Pre Closing Partners'
Representative excludes information of which the Operating Partnership, Pre
Closing Partners' Representative or any other party has constructive or implied
knowledge or notice.
Notwithstanding anything contained in this Agreement to the contrary,
all of the representations, warranties and certifications (the
"Representations") which are made by the Operating Partnership or by the Pre
Closing Partners, jointly and severally, and set forth in this Section 8 or in
Section 7, shall be subject to the following conditions and limitations: (i) the
Representations shall survive the Closing (ii) there shall be no liability on
the part of the Operating Partnership or on the part of the Pre Closing
Partners, after the Closing, for breaches of Representations of which
Contributor had actual knowledge prior to the Closing; and (iii) in the event
that, after the date hereof and prior to the time of Closing, during the course
of Contributor's inspections, studies, tests and investigations conducted by
Contributor, or through other sources, Contributor gains knowledge of a fact or
circumstance which conclusively shows that a Representation was or has become
untrue or inaccurate in any material respect, and such fact or circumstance was
not intentionally withheld from Contributor by Pre Closing Partners'
Representative, then Contributor shall notify the Operating Partnership of such
fact or circumstance, and if the Operating Partnership shall fail to
substantially eliminate or otherwise cure any materially adverse effect on the
Property which results from the material untruth or inaccuracy of the applicable
Representation, within ten (10) days after receiving such notice, then
Contributor, if it does not wish to waive such breach and proceed to Closing,
shall have the right (as its sole remedy) to declare this Agreement terminated,
in which event the Deposit and all interest thereon shall be returned to
Contributor.
SUBJECT TO THE EXPRESS REPRESENTATIONS AND WARRANTIES OF THE OPERATING
PARTNERSHIP AND PRE CLOSING PARTNERS CONTAINED IN THIS AGREEMENT, AND EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE OPERATING PARTNERSHIP AND
PRE CLOSING PARTNERS MAKE NO REPRESENTATION, CERTIFICATION OR WARRANTY OF ANY
KIND, INCLUDING ANY REPRESENTATION, CERTIFICATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE CONDITIONS OR STATE OF REPAIR OF THE PROPERTY, OR ANY PORTION
THEREOF, OR OF VISIBLE OR HIDDEN DEFECTS IN MATERIAL, WORKMANSHIP OR CAPACITY OF
THE PROPERTY, OR ANY PORTION THEREOF, AND THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO THE PROPERTY, OR ANY
PORTION THEREOF, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. EXCEPT AS
EXPRESSLY STATED IN THIS AGREEMENT, THE OPERATING PARTNERSHIP HAS DISCLAIMED ANY
EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE MERCHANTABILITY, PHYSICAL
CONDITION OR FITNESS FOR PARTICULAR USE OR PURPOSE OF THE PROPERTY OR ANY
PORTION THEREOF.
9. DAMAGE, DESTRUCTION OR REQUIRED ALTERATION OR ADDITION.
9.1 Prior to Closing, in the event of any damage to or destruction of
all or part of the Real Estate (notice of which shall be given to Contributor by
the Operating Partnership as soon as practicable following its occurrence), then
the Operating Partnership shall promptly repair or replace such damage or
destruction, and Closing shall not occur until completion except that if the
cost of such repair or replacement exceeds the sum of Two Hundred Fifty Thousand
Dollars ($250,000.00), or the
20
damage would take more than sixty (60) days to repair or rebuild, then in any
such case (i) Contributor shall have the right to terminate this Agreement by
giving the Operating Partnership written notice of its intention to do so, such
notice by Contributor to the Operating Partnership to be given not later than
five (5) days after Contributor shall have received the notice from the
Operating Partnership of such aforesaid occurrence, (in which event the Deposit
shall forthwith be returned to Contributor, whereupon the Agreement shall be
null and void and of no further force or effect whatsoever); or (ii) if
Contributor elects not to terminate this Agreement, this Agreement shall
continue in full force and effect and any insurance proceeds received by the
Operating Partnership shall be used to repair the property, provided that, if
insurance proceeds are insufficient to pay for such repair in full, then such
deficiency will be withheld from future distributions due to the Pre Closing
Partners who continued to be Partners Post Closing, pro rata in accordance with
their respective OP Units.
9.2 In the event that any governmental authority having jurisdiction of
all or part of the Real Estate notifies the Operating Partnership before the
Closing that some alteration of, or addition to, the Real Estate is required to
be made by law, rule or regulation (notice of which shall be given to
Contributor by the Operating Partnership as soon as practicable after its
receipt) or otherwise requires a cure of a violation, then the Operating
Partnership shall promptly undertake such alteration or addition or cure and
shall accomplish the same before the date of Closing; provided, however, that if
the cost of such alteration or addition or cure shall exceed the sum of Fifty
Thousand Dollars ($50,000.00) , then in such event the Operating Partnership may
either elect to pay the entire cost and cure the same before the Closing or may
decline to undertake the same, in which event Contributor shall have the option,
exercisable within fifteen (15) days following notice from the Operating
Partnership of the requirement and the Operating Partnership's refusal to comply
therewith, (i) to terminate this Agreement by giving the Operating Partnership
notice thereof (in which event the Deposit shall forthwith be returned to
Contributor, whereupon the Agreement shall be null and void and of no further
force or effect whatsoever); or (ii) to proceed with the Closing, in which event
the Adjustment Amount shall be increased by the actual amount necessary to cure
up to the maximum sum of Fifty Thousand Dollars ($50,000.00) . If such notice is
not timely given by Contributor, Contributor will be deemed to have elected
option (ii).
10. EMINENT DOMAIN.
The Operating Partnership represents it knows of no eminent domain
proceedings affecting or threatened against the Property. In the event that any
eminent domain proceedings affecting the Property shall be threatened,
contemplated, commenced or consummated prior to the Closing (notice of which
shall be given to Contributor by the Operating Partnership as soon as
practicable after receipt by the Operating Partnership), Contributor shall have
the right to terminate this Agreement, by written notice given to the Operating
Partnership within fifteen (15) days after the Operating Partnership has given
Contributor the aforesaid notice, (in which event the Deposit shall forthwith be
returned to Contributor, whereupon the Agreement shall be null and void and of
no further force or effect whatsoever). If this Agreement is not so terminated,
Pre Closing Partners at Closing shall assign to Contributor their entire right,
title and interest in and to any award.
11. CONTRIBUTOR'S CONDITIONS TO CLOSING.
21
Contributor's obligation at Closing to consummate the transactions
herein contemplated is expressly conditioned upon the following (unless waived
in writing and signed by Contributor), and if all these conditions are not
satisfied at the Closing, Contributor may terminate this Agreement in which
event the Deposit shall forthwith be returned to Contributor, whereupon this
Agreement shall be null and void and of no further force or effect whatsoever.
The following conditions may be waived by the Contributor in its sole and
absolute discretion.
11.1 The Operating Partnership's warranties and representations, and the
Pre Closing Partner's warranties and representations, set forth herein shall be
true and correct in all material respects as of the date of Closing and the
Operating Partnership and the Pre Closing Partners shall have performed each and
all of their respective covenants and agreements hereunder within the time
provided.
11.2 At Closing, the Pre Closing Partners, shall deliver estoppel
certificates in the form and substance of Exhibit 9, dated not more than thirty
(30) days prior to the Closing Date, from all Space Tenants occupying five
thousand (5,000) square feet or more and from not less than seventy-five (75%)
percent of Space Tenants occupying less than five thousand (5,000) square feet.
The estoppel certificates shall confirm the information set forth in Exhibit 3
and the other matters contained in said form. In the event the Pre Closing
Partners fail to comply with the preceding provisions of this Section 11.2, and
delivers less than one hundred (100%) percent of estoppels from Space Tenants
occupying more than five thousand (5,000) square feet, then Contributor shall
have the right to terminate this Agreement and obtain the return of the Deposit;
however, if Contributor elects not to terminate (or, in any event, with regard
to any such Space Tenant estoppel not delivered even if Contributor would not
have a right to terminate), the Pre Closing Partners, jointly and severally,
shall, at Closing, furnish estoppel certificate(s) in lieu of any missing tenant
estoppel certificates. The estoppel certificate(s) furnished by the Pre Closing
Partners, jointly and severally, (which shall survive Closing) shall also be in
form and substance of Exhibit 9. Notwithstanding the foregoing, the Pre Closing
Partners shall not be required to deliver an estoppel containing an assertion
that the Pre Closing Partners, in good faith believe to be untrue. If any such
estoppel from the Pre Closing Partners is not in the form or substance of
Exhibit 9, Contributor shall have the right, at its option, to accept such
varied estoppel from the Pre Closing Partners, or to terminate this Agreement
and obtain the return of the Deposit.
11.3 There shall have been no breach on the part of the Operating
Partnership or any Pre Closing Partner of any covenants set forth in Section 4.
11.4 No Space Leases over five thousand (5,000) square feet shall have
been terminated or canceled or the premises demised thereby surrendered; nor
shall any tenant(s) over five thousand (5,000) square feet have ceased operating
business at the Shopping Center or given the Operating Partnership a notice of
its intent to cease operating; nor shall any tenant(s) have filed for protection
under the United States Bankruptcy Act.
11.5 Concurrently with the Closing, the Operating Partnership and/or the
Pre Closing Partners and/or Midway Holdings, Inc., shall have executed and
delivered to the Contributor the documents required to be delivered pursuant to
Section 13 hereof;
22
11.6 The Operating Partnership shall have obtained all necessary
consents or approvals of governmental authorities or third parties to the
consummation of the transactions contemplated hereby;
11.7 The Operating Partnership shall not have breached any of its
covenants contained herein in any material respect;
11.8 No order, statute, rule, regulation, executive order, injunction,
stay, decree or restraining order shall have been enacted, entered, promulgated
or enforced by any court of competent jurisdiction or governmental or regulatory
authority or instrumentality that prohibits the consummation of the transactions
contemplated hereby, and no litigation or governmental proceeding seeking such
an order shall be pending or threatened; and
11.9 Subject only to payment of its premium for same, the Title Company
shall be prepared to issue at Closing (or prepared to unconditionally commit to
issue at Closing, with no "gap"), its title policy in favor of the Partnership
(with Contributor as new, sole general partner), in the required form (including
all endorsements) set forth in Section 6, subject only to the Permitted
Exceptions.
12. ASSIGNMENT; DESIGNATION OF GRANTEES.
12.1 Contributor shall have the right to assign this Agreement and all
of its rights under this Agreement on or prior to the Closing Date to any
affiliate of Kimco Realty Corporation, provided that upon such assignment any
such assignee shall, in writing, affirmatively assume all obligations of
Contributor hereunder.
12.2 Neither the Contributor nor any of the Pre Closing Partners shall
assign its rights or its interest in and to this Agreement, or any of its rights
or interests in the Operating Partnership; nor shall the Operating Partnership
be deemed to be discharged of any of its duties hereunder as a result of any
assignment or of any delegation by Contributor of any such duties.
13. THE CLOSING.
13.1 The Closing shall be held no later than ten (10) days after the end
of the Inspection Period (as defined herein, and as such period may be extended
pursuant to the terms hereof) at the offices of Contributor's attorneys, 0000
Xxx Xxxx Xxxx Xxxx, Xxxxx 000, Xxx Xxxx Xxxx, XX 00000, at 10:00 A.M. on the
Closing Date [or at such other time and place as the parties hereto may agree]
(the "Closing " and the "Closing Date"). Upon request of the Operating
Partnership at least five (5) business days prior to Closing, Closing shall be
effectuated through escrow arrangements with the Title Company.
13.2 At Closing, Contributor shall contribute the Contribution Amount
and pay the Adjusted Purchase Amount, and Contributor shall execute and deliver
such instruments as the Operating Partnership may reasonably desire in
connection with or to consummate the transactions contemplated by this
Agreement, including the Amended and Restated Limited Partnership Agreement
attached hereto as Exhibit 15. In addition, Contributor shall cause Kimco Realty
Corporation to execute and deliver the Registration Rights Agreement attached
hereto as Exhibit 16.
23
13.3 At Closing, the Operating Partnership, and/or the Pre Closing
Partners, shall execute and/or deliver to Contributor the following:
13.3.1 Intentionally Omitted.
13.3.2 Evidence satisfactory to the Contributor that all actions
taken by the Operating Partnership pursuant to this Contribution Agreement have
been approved pursuant to the requirements of the organizational documents of
the Operating Partnership; and
13.3.3 "Accredited Investor" questionnaires in the form of
Exhibit 11 attached hereto ("Questionnaires") and made a part hereof from the
Operating Partnership and each of the partners of the Operating Partnership who
own or will own OP Units; provided, however, if a partner of the Operating
Partnership is unable to deliver a Questionnaire (a "Disqualified Partner"),
such Disqualified Partner hereby agrees to sell to Contributor at Closing all of
its remaining interests in the Operating Partnership for an amount equal to the
value of the OP Units such Partner would have been allocated as calculated in
Section 2.3(b).
13.3.4 The certificate provided in Exhibit 12 attached hereto
reconfirming the representations provided for in Section 8.
13.3.5 Such affidavits; "mechanic's lien", "gap", "parties in
possession" or other the Operating Partnership indemnities; evidence of
authority; releases of liens; or other instruments as the Title Company may
reasonably request to issue, or commit to issue, a title policy satisfactory to
Contributor in accordance with Section 6;
13.3.6 Such other instruments as Contributor may reasonably
desire in connection with or to consummate the transactions contemplated by this
Agreement; including without limitation an indemnity in a form satisfactory to
Contributor, to Contributor and/or the Title Company against any loss by reason
of title claims or defects known to any partner of the Operating Partnership but
not disclosed to Contributor and Title Company prior to Closing.
13.3.7 All estoppel certificates referred to in Section 11.2 in
the forms required and permitted in said Section.
13.3.8 A FIRPTA affidavit from each Pre Closing Limited Partner
in form reasonably satisfactory to Contributor to the effect that none of the
Pre Closing Partners is a "foreign person." If any of the Pre Closing Partners
is a "foreign person" (as defined in IRC Section 1445(f)(3) and the regulations
issued thereunder), or if any of the Pre Closing Partners fails or refuses to
deliver the non-foreign affidavit required by this paragraph, or if Contributor
receives notice that any such affidavit is false, or Contributor has actual
knowledge that any such affidavit is false, Contributor shall increase the
Adjustment Amount in an amount equal to a tax of ten (10%) percent of that Pre
Closing Partner's pro rata share (according to the percentages set forth in
Schedule 1 attached hereto) of the Adjusted Purchase Amount, as required by IRC
Section 1445. If any such withholding is made by Contributor, the Pre Closing
Partners' obligation to deliver title hereunder shall not be excused or
otherwise affected. Contributor shall remit such withheld amount to the IRS and
file the required form with the IRS, and if any of the Pre Closing Partners
claims that the amount so withheld by Contributor and
24
remitted by Contributor to the IRS exceeds the amount required to be withheld
under the IRC for any reason whatsoever, that Pre Closing Partner's remedy with
respect to such claim shall be limited solely to an action against the IRS for
refund, and each of the Pre Closing Partners hereby waives any right of action
against Contributor on account of such withholding. The provisions of this
Section 14.3.12 shall survive the Closing hereunder.
13.3.9 An estoppel certificate from Target substantially in the
form of Exhibit 13, and an estoppel certificate from the owner of Lot 3 in the
form required by Section 6 of the Taco Xxxx XXX (confirming no amendments and no
defaults); in each case dated not more than thirty (30) days prior to Closing.
13.3.10 Such notice to the other REA Parties respecting the
change in General Partner as may be required by the REA or as Contributor may
otherwise request.
13.3.11 Such other documents as may be required or as Contributor
may request to assign to the Operating Partnership the entire right, title and
interest as "Developer", "Approving Party", and "Operator" under the REAs,
including without limitation a resignation of the current Operator and written
consent of Target to the Operating Partnership, with its new General Partner, or
at Contributor's option to Kimco Realty Corporation or any subsidiary thereof,
as Operator.
13.3.12 The 1997 Statement and supporting documentation
required by Section 7 of the Management Agreement.
13.3.13 Notwithstanding anything to the contrary set forth in
this Agreement, at or prior to Closing, the Operating Partnership shall have the
right, at its sole cost and expense, to convey Lots 2 and 6 to all or any of the
Pre Closing Partners or to any third party. In such event, however, at the time
the Operating Partnership conveys such Lots 2 and 6, i.e., either at or prior to
Closing, the Operating Partnership shall cause to be executed, delivered and
recorded (at the sole expense of the Operating Partnership), a Declaration of
Restrictions for Lots 2 and 6, in form reasonably acceptable to Contributor and
the Pre Closing Partners, which shall:
(i) restrict height of buildings to be constructed on
such Lots to one story and no more than twenty-two (22') feet;
(ii) restrict size of buildings that may be constructed
thereon to no more than five thousand (5,000) square feet for Lot 2 and no more
than five thousand (5,000) square feet for Lot 6;
(iii) restrict areas for placement of buildings and signs
to designated areas, which are to be subject to Contributor's reasonable
approval;
(iv) provide that plans for construction of any
improvements (including without limitation parking areas and driveways) are to
be subject to Contributor's prior written approval, not to be unreasonably
withheld;
(v) provide that each such Lot shall be required to have
(on a self-contained basis without taking into account parking spaces on other
portions of the Shopping Center) not less than (1)
25
five (5) parking spaces for each one thousand (1,000) square feet of building
area, or (2) such greater parking ratio as may be required by law or the OEA;
(vi) contain provisions for a right of first refusal for
Contributor on any bona fide offers to purchase either Lot 2 and/or Lot 6; to
the effect that if the owner of either Lot 2 and/or Lot 6 (hereinafter referred
to as the "Lot Owner") receives a bona fide, executed contract of sale from a
prospective buyer that the Lot Owner desires to enter into, before the Lot Owner
executes same, it will present same to Contributor, who shall have a period of
ten (10) days to exercise, by giving notice to , a right to buy the property for
the price therein set forth, closing within thirty (30) days, title subject only
to matters which are Permitted Exceptions under this Agreement, possession to be
vacant and free of any leases or service contracts; and otherwise upon material
terms substantially similar to this Agreement (except there shall be no due
diligence period).
(vii) prohibit uses that would conflict with or violate
the OEA, Taco Xxxx XXX, or any other existing lease (i.e., exclusive or
restrictive provisions thereof) on the Closing Date or other agreement of or
affecting the Shopping Center on the Closing Date; and
(viii) contain such other provisions, including
cross-access rights and cross-parking as may be reasonably typical, appropriate,
and acceptable to the parties.
13.3.14 An assignment to Contributor by the Pre Closing Partners
of (1) all of Xxxxxxx X. Wafer's partnership interests, and (2) that portion of
partnership interests as are being purchased by Contributor at Closing in a form
reasonably acceptable to Contributor.
13.4 At Closing, Contributor shall pay the cost of a title policy to be
issued in the amount of the Agreed Upon Value of the Property in the form
referred to in Sections 6.1 and 6.2, and all costs of any new or updated Survey
that Contributor orders.
14. BROKERS.
Contributor, the Operating Partnership, and Pre Closing Partners each
represent and warrant that they dealt with no broker or finder in connection
with this transaction other than Oakmont Capital Resources (the "Broker"), whose
commission is to be paid by Contributor pursuant to separate agreement (but only
if, as and when earned in accordance with such agreement); and each agrees to
defend, indemnify and hold the other harmless from and against any and all loss,
liability and expense, including reasonable attorney's fees, the indemnified
party may incur arising by reason of the above representations being false. The
provisions of this Section 14 shall survive Closing.
15. NOTICES.
All notices, demands, requests, consents, approvals or other
communications (for the purpose of this Section collectively called "Notices")
required or permitted to be given hereunder or which are given with respect to
this Agreement shall be valid only if in writing and sent by registered or
certified United States mail, return receipt requested, postage prepaid, or
delivered by Federal Express or UPS courier service, addressed as follows:
To Contributor: Kimco Bradenton 698, Inc.
26
c/o Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxxxx
Chief Financial Officer
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Vice President, Legal
0000 Xxx Xxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
27
and to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Fax: (000) 000-0000
To The Operating Partnership, and to each Pre Closing Partner c/o:
Bay-Gard, Ltd.
0000 Xxxxxx Xxxx Xxxx, Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxx Xxxxxx
Fax: 000-000-0000
and to:
Xxxxxx Xxxxxxxx & Xxxxxxxx
0000 Xxxxx Xxx. X., Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
To the Escrow Agent: Chicago Title Insurance Company
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Att: Xxxxxxx X. Xxxxx, Esq.
or such other address as such party shall hereafter have specified by Notice
given by the same means. Any Notice shall be deemed given when delivered to the
carrier delivering same, delivery charges prepaid, and properly sealed and
addressed. Any Notice may also be given by telecopier to the following numbers:
Operating Partnership 000-000-0000, Contributor 000-000-0000, and Escrow Agent
000-000-0000 Att: Xxxxxxx X. Xxxxx, Esq., provided that a "hard copy" of such
notice is sent within one (1) business day after such telecopier transmission in
the manner above set forth; and in the case of notice by telecopier (with
confirmation sent as aforesaid), notice shall be deemed given upon electronic
confirmation of receipt.
16. GOVERNING LAW.
This Agreement shall be governed by, interpreted under, and construed
and enforced in accordance with, the laws of the State of Florida.
28
17. ENTIRE AGREEMENT.
This Contribution Agreement, together with the Schedules and Exhibits
hereto and thereto, represents the entire understanding and agreement between
the Operating Partnership and the Contributor with respect to the subject matter
hereof and supersedes all prior negotiations, representations and agreements
made by and between such parties (other than written agreements and other
documents entered into or delivered pursuant hereto or in connection herewith).
This Contribution Agreement may be amended, supplemented or changed, and any
provision hereof may be waived, only by a written instrument making specific
reference to this Contribution Agreement signed by the Operating Partnership and
the Contributor. Waiver by the Operating Partnership and/or the Contributor, as
the case may be, of any breach or default hereunder by any other party shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived. The parties do not intend to confer
any benefit hereunder on any person, firm or corporation other than the parties
hereto and their respective successors or assigns.
18. SURVIVAL.
The several representations and warranties of the parties contained
herein, and the indemnities relating to breaches thereof, shall survive the
Closing; provided, however, that with respect to the representations and
warranties made in Exhibit 12, Items I through P, and any claims made with
respect thereto shall survive until ninety (90) days after the expiration of the
applicable statute of limitations (with extensions).
19. TITLES AND HEADINGS.
Titles and headings of Articles and Sections of this Agreement are for
convenience of reference only and shall not affect the construction of any
provision of this Agreement.
20. ATTACHMENTS.
Each of the Exhibits and Schedules referred to herein and attached
hereto is an integral part of this Agreement and is hereby incorporated in this
Agreement by this reference.
21. FURTHER ASSURANCES.
The Operating Partnership and the Contributor, at the request of the
other party, at or after the Closing, will promptly obtain, execute and deliver,
or cause to be obtained, executed and delivered, to the other party such
assignments, endorsements, and other such instruments or documents to be
executed by the Operating Partnership and the Contributor, as the case may be,
in addition to those otherwise required by this Contribution Agreement, in form
and substance reasonably satisfactory to the other party, as such other party
may reasonably deem necessary or desirable so as to carry out or implement any
provision of this Contribution Agreement.
22. MISCELLANEOUS.
This Agreement shall extend to and be binding upon the legal
representatives, heirs, executors, administrators and, subject to the provisions
of this Agreement, the permitted assigns of the parties
29
hereto. All references to "Sections" and "Articles" shall be deemed to be
references to Sections and Articles of this Agreement unless otherwise indicated
or unless the context otherwise requires.
23. AUTHORITY.
Each party warrants authority and due execution of this Agreement.
24. PRESS RELEASES.
No press releases or other public announcements regarding the Amended
and Restated Limited Partnership Agreement or this Contribution Agreement shall
be issued by the Operating Partnership or the Contributor without the mutual
prior consent of both parties, except that in the event that the parties are
unable to agree on a press release and legal counsel for one party is of the
opinion that such press release is required by law, then such party may issue
the legally required press release.
25. RULES OF CONSTRUCTION.
The provisions of this Agreement shall be construed, in all respects,
without reference to any rule or canon requiring or permitting the construction
of provisions of documents against the interest of the party responsible for the
drafting of the same, it being the intention and agreement of the parties that
this Agreement be conclusively deemed to be the joint product of both parties
and their counsel.
26. EXPENSES.
Except as otherwise provided in this Contribution Agreement, all legal
and other costs and expenses incurred in connection with this Contribution
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
27. OPERATING PARTNERSHIP'S CONDITIONS TO CLOSING.
Operating Partnership's obligations at Closing are expressly conditioned
upon the following (unless waived in writing signed by the Operating
Partnership), and if all these conditions are not satisfied at Closing, the
Operating Partnership may terminate this Agreement, in which event the Deposit
shall forthwith be returned to Contributor, whereupon this Agreement shall be
null and void and of no further force and effect:
Contributor's warranties and representations set forth herein shall be
true and correct in all material respects as of the date of Closing and
Contributor shall have performed each and all of its covenants and agreements
hereunder within the time provided.
28. ATTORNEYS FEES AND COSTS.
In the event of litigation between the parties arising out of or
relating to this Agreement, the prevailing party shall be entitled to recover
from the non-prevailing party, all reasonable attorneys' fees and costs incurred
by the prevailing party as to such litigation.
29. COUNTERPART PROVISION.
30
This Agreement may be executed in several counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same
instrument. In addition, this agreement may contain more than one counterpart of
the signature page and this agreement may be executed by the affixing of the
signatures of each of the Partners to one of such counterpart signature pages;
all of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
[REST OF PAGE LEFT INTENTIONALLY BLANK]
31
IN WITNESS WHEREOF, the parties have executed this Contribution
Agreement as of the date first written above.
"CONTRIBUTOR"
KIMCO BRADENTON 698, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: VP
------------------------------
"OPERATING PARTNERSHIP"
BAY-GARD, LTD.
By: MIDWAY HOLDINGS, INC.,
a Florida Corporation,
a Pre Closing general partner
By: /s/ Xxxx Xxx Xxxxxx
---------------------------------
Name: Xxxx Xxx Xxxxxx
-------------------------------
Title: President
------------------------------
By: PALMETTO HOLDINGS I, INC.
a Pre Closing General Partner
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------
Title: President
------------------------------
By: X.X. XXXXXXX LAND COMPANY,
INC.
a Pre Closing General Partner
By: /s/ X. X. Xxxxxxx
---------------------------------
Name: X. X. Xxxxxxx
-------------------------------
Title: Pres.
-------------------------------
32
/s/ Xxxxxxx X. Wafer
----------------------------------------
Xxxxxxx X. Wafer, Partner Withdrawing from
Operating Partnership
XXXXXX INVESTMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name:
-------------------------------
Title: President
------------------------------
FARGO INVESTMENTS
By: /s/ X. Xxxxxxx
---------------------------------
Name: X. Xxxxxxx
-------------------------------
Title: GP
------------------------------
PALMETTO HOLDINGS I, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------
Title: President
------------------------------
MIDWAY HOLDINGS, INC.
By: /s/ Xxxx Xxx Xxxxxx
---------------------------------
Name: Xxxx Xxx Xxxxxx
-------------------------------
Title: President
------------------------------
X.X. XXXXXXX LAND CO.
By: /s/ X.X. Xxxxxxx
---------------------------------
Name: X.X. Xxxxxxx
-------------------------------
Title: Pres.
------------------------------
33
The undersigned here Named executes this Agreement for the sole purpose
of agreeing to be bound by the indemnification provisions in favor of the
Operating Partnership set forth in Section 4.4.4, including without limitation
the survival provisions of the last sentence thereof.
KIMCO REALTY CORPORATION,
a Maryland Corporation,
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: VP
------------------------------
WITNESSES: /s/ Xxxxx X. Xxxxxx
----------------------------
WITNESSES: /s/ Illegible
----------------------------
34
SCHEDULE 1
--------------------------------------------------------------------------------
Unadjusted Purchase Percentage for Value of OP
Pre Closing Partner Amount* Adjustments* Units*
--------------------------------------------------------------------------------
Xxxxxxx X. Wafer 548,363** 7.142857% 0
Xxxxxx Investment
Corporation 167,655** 7.142857% 380,708
Fargo Investments 838,273** 35.714286% 1,903,541
Palmetto Holdings I, Inc. 156,041** 10.000000% 500,000
Midway Holdings, Inc. 328,542** 20.000000% 1,221,277
X.X. Xxxxxxx Land
Company, Inc. 251,225** 20.000000% 994,474
-------
Totals 2,290,099** 100.000000% 5,000,000
---------
The Adjusted Purchase Amount shall be allocated to the Pre Closing Partners as
follows:
**These numbers are derived based upon the assumption that the Contribution
Agreement will equal $7,114,901. However, the Parties to this Agreement
anticipate the possibility that the actual Contribution Amount at Closing will
vary, due to additional lien(s) and/or amortization. All changes to the
Unadjusted Purchase Amounts will be distributed amongst the Pre Closing Partners
according to the Percentage for Adjustments listed above.
*This schedule of Unadjusted Purchase Amount, and/or Percentage for Adjustments,
and/or Value of OP Units can be changed at closing, provided that the total
value of OP Units is not less than $4 million minus the Excess Adjustment
Amount, if any, and further provided that all Pre Closing Partners unanimously
consent in writing to the new percentages and/or values.
35
SCHEDULE OF EXHIBITS
Exhibit 1 Plan
Exhibit 2 Description of Real Estate
Exhibit 3 Schedule of Space Leases
Exhibit 4 Schedule of Personal Property
Exhibit 5 Schedule of Service Contracts
Exhibit 6 Litigation
Exhibit 7 Current Budget under Management Agreement
Exhibit 8 Tax Bills
Exhibit 9 Tenant Estoppel Certificate
Exhibit 10 Intentionally Omitted
Exhibit 11 Accredited Investor Questionnaire
Exhibit 12 Representations and Warranties
Exhibit 13 Form of REA Estoppel
Exhibit 14 New Tenants
Exhibit 15 Amended and Restated Limited Partnership Agreement
of Bay-Gard, Ltd.
Exhibit 16 Registration Rights Agreement
36
EXHIBIT 12
REPRESENTATIONS AND WARRANTIES
Representations and Warranties for Benefit of the Contributor.
The Operating Partnership and each Pre Closing Partner hereby warrants and
represents to the Contributor that each of the following statements is true and
correct as of the date of this Contribution Agreement and shall be true and
correct on the Closing Date:
A. The representations, warranties and covenants
made by the Operating Partnership herein are true and accurate in all material
respects.
B. The Operating Partnership has full power and
authority to enter into and perform this Contribution Agreement in accordance
with its terms and this Contribution Agreement has been duly executed by the
Operating Partnership and is enforceable against the Operating Partnership in
accordance with its terms, and the documents delivered to the Contributor at the
Closing will be duly executed by the Operating Partnership and enforceable
against the Operating Partnership in accordance with their terms. Neither the
execution and delivery of this Contribution Agreement nor the performance hereof
will (i) be in violation of the organizational documents of the Operating
Partnership, (ii) conflict with any law, decree, judgment, regulation or decree
of any court or governmental agency, or (iii) conflict with any agreement or
instrument to which the Operating Partnership or Pre Closing Partners or the
Property are or may be bound.
C. The information to be furnished by the Operating
Partnership on which the computation of prorations is based is (or will be as of
the Closing Date) true, correct and complete in all material respects.
D. The Post Closing Partners other than Contributor
(the "Other Post Closing Partners") are acquiring the OP Units for their own
account, as principal, for investment, and not with a view toward resale or
distribution thereof (other than assignment to an affiliate of Kimco realty
Corporation in accordance with Section 5.8 herein.
E. The Other Post Closing Partners shall be
receiving certificates for their post-Closing partnership interests and each one
represents and warrants that it is an "Accredited Investor" as that term is
defined under Regulation D under the Securities Act of 1933, as amended (the
"1933 Act") by reason of the fact that it is an entity all of whose equity
owners are Accredited Investors.
F. The Other Post Closing Partners understand that
the OP Units have not been registered under the 1933 Act or the securities laws
of any state and, as a result thereof, are subject to substantial restrictions
on transfer.
G. The Other Post Closing Partners understand that
(i) the Operating Partnership has no obligation or intention to register the OP
Units for resale under any federal or state securities laws except as provided
for in the Registration Rights Agreement, or to take any action (including the
filing of reports or the publication of information required by Rule 144 under
the 0000 Xxx) which would make available any exemption from the registration
requirements of such laws, and (ii) therefore, the Other Post Closing Partners
may be precluded from selling or otherwise transferring or disposing (other than
pursuant to the terms and provisions of the Amended and Restated Limited
53
Partnership Agreement) of any OP Units or any portion thereof and may have to
bear the economic risk of investment in the OP Units for an indefinite period.
H. The Other Post Closing Partners shall accept the
certificates with the following legend appearing thereon:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1993, AS AMENDED (THE "ACT") AND,
THEREFORE, CANNOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE ACT. IN ADDITION THE SECURITIES
REPRESENTED HEREBY CANNOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS.
I. The Operating Partnership and each Pre Closing
Partner has timely filed with the appropriate taxing authorities all returns
(including, without limitation, information returns and other material
information) in respect of Taxes required to be filed through the date hereof
and will timely file any such returns required to be filed on or prior to the
Closing Date. The returns and other information filed (or to be filed) are
complete and accurate in all material respects. Neither the Operating
Partnership nor any Pre Closing Partner has requested any extension of time
within which to file returns (including, without limitation, information
returns) in respect of any Taxes that have not been filed.
J. All Taxes of the Operating Partnership, in
respect of periods beginning before the Closing Date, have been timely paid, or
will be timely paid, prior to the Closing Date, and the Operating Partnership
has no material liability for Taxes in excess of the amounts so paid. All Taxes
that the Operating Partnership has been required to collect or withhold have
been duly collected or withheld and, to the extent required when due, have been
or will be (prior to the Closing Date) duly paid to the proper taxing authority.
K. The federal income tax returns of the Operating
Partnership have not been examined by the Internal Revenue Service, and no
material deficiencies for Taxes of the Operating Partnership have been claimed,
proposed or assessed by any taxing or other governmental authority against the
Operating Partnership. There are no pending or, to the best knowledge of the
Operating Partnership, threatened audits, investigations or claims for or
relating to any material additional liability to the Operating Partnership in
respect of Taxes, and there are no matters under discussion with any
governmental authorities with respect to Taxes that in the reasonable judgment
of the Operating Partnership, or its counsel, is likely to result in a material
additional liability to the Operating Partnership for Taxes. No audits of the
Operating Partnership's federal, state, and local returns for Taxes by the
relevant taxing authorities have occurred. The Operating Partnership has not
been notified that any taxing authority intends to audit a return for any
period. No extension of a statute of limitations relating to Taxes is in effect
with respect to the Operating Partnership.
L. There are no liens for Taxes (other than for
current Taxes not yet due and payable) on the Property.
54
M. The Property does not, directly or indirectly,
secure any debt the interest on which is tax-exempt under Section 103(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
N. The Property is not required to be treated as
being owned by any other person pursuant to the so-called safe harbor lease
provisions of former Section 168(f)(8) of the Code.
O. The Property is not "tax exempt use property"
within the meaning of Section 168(h) of the Code.
P. The tax basis of the Personal Property owned by
the Operating Partnership is less than fifteen percent (15%) of the tax basis of
the Property.
For purposes of paragraphs I through P inclusive above,
"Tax" or "Taxes" means any federal, state, local or foreign net
or gross income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, customs duties, capital stock, franchise,
profits, withholding, social security (or similar), unemployment, disability,
real property, personal property, sales, use, transfer, registration, value
added, alternative or add-on minimum, estimated, or other tax, governmental fee
or like assessment or charge of any kind whatsoever, together with any interest
and penalties, whether as a primary obligor or as a result of being a
"transferor" (within the meaning of Section 6901 of the Code and any
corresponding state and local law) of another person.
55
EXHIBIT 13
FORM OF REA ESTOPPEL
[Letterhead of Target]
Bay Gard, Ltd./Kimco Bradenton 698, Inc.
c/o Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xx., Xxxxx 000
Xxx Xxxx Xxxx, XX 00000-0000
Re: Operation and Easement Agreement dated March 27, 1991 between Xxxxxx
Xxxxxx Corporation and Bayshore Gardens Venture, recorded at O.R. 1330,
Page 1271 (the "OEA"), and Management Agreement of even date therewith
(the "Management Agreement"); said OEA and Management Agreement, which
cover the Shopping Center located in Bradenton, Florida, commonly known
as Bayshore Gardens (the "Shopping Center"), being collectively referred
to as the "REA"
Ladies and Gentlemen:
We understand that Kimco Bradenton 698, Inc. ("Kimco") an
affiliate of Kimco Realty Corporation has agreed to become a contributor and
General Partner of Bay-Gard, Ltd. ("Operating Partnership"), the owner of the
"Developer Tract" of the Shopping Center with the exception of certain
outparcels thereof that were previously sold. In response to your request for
certain information and confirmation from us before consummating such purchase,
we (being sometimes referred to as "Target") hereby certify to and agree with
you as follows:
1. The REA is in full force and effect and has not been assigned,
modified or amended. There are no outstanding uncured notices of
default from the Target to the Operating Partnership or any other
party under the REA. Target has not received any outstanding
uncured notices of default from the Operating Partnership or any
other party claiming a default under the REA. Neither Developer
nor Target has any liens against the parcel of the other party
arising from nonpayment or nonperformance under the REA.
2. To the best of our knowledge, no default by the Operating
Partnership exists in the performance of any obligation required
by it under the REA, and to our best knowledge, no event has
occurred which, with the passage of time or the giving of notice,
would constitute a default by the Operating Partnership under the
REA.
3. To our best knowledge, no unperformed work or installations or
unpaid amounts is required of or due from the Operating
Partnership under the REA, and there exists no unresolved dispute
(including without limitation any audit claim) with us concerning
past or current amounts due the Operating Partnership or any
predecessor in interest.
56
4. An affiliate of the Operating Partnership, as Operator, is
currently performing all common area maintenance and carrying all
common area liability insurance required by or under the REA for
the Developer Tract and the Target Tract.
5. There have been no Common Area Rules adopted under Section 6.24
of the OEA.
6. Circumstances have not arisen that would permit an exercise by
Developer of any Repurchase Option set forth in OEA Section 6.28;
and the Repurchase Option right in said Section 6.28(B) remains
in full force and effect.
7. All obligations of Developer under that certain Site Development
Agreement of even date with the REA, and between the same parties
thereto, have been fully performed and such agreement has
terminated.
8. Attached as Exhibit 7 is the most recent Budget under the
Management Agreement, and same has been approved by us.
The provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns as owners of the
parcels covered by the REA.
Very truly yours,
--------------------------------
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
57
EXHIBIT 14
NEW TENANTS
-----------------------------------------------
Coast Dental
-----------------------------------------------
Xxxxxx Fashion
-----------------------------------------------
GTE Phonemart
-----------------------------------------------
Hallmark
-----------------------------------------------
Jo Xxx Fabrics
-----------------------------------------------
Post Net Mail Center
-----------------------------------------------
M & M Cafe
-----------------------------------------------
Futon
-----------------------------------------------
A-58
AMENDMENT
TO
CONTRIBUTION AGREEMENT
THIS AGREEMENT, made as of this 5th day of May, 1998 between BAYGARD, LTD.,
a Florida Limited partnership (the "Operating Partnership"), and KIMCO
BRANDENTON 698, INC., a Florida corporation (the "Contributor").
W I T N E S S E T H :
WHEREAS, Contributor, the Operating Partnership, and the partners of the
Operating Partnership (collectively, the "Partners") entered into a certain
Contribution Agreement dated as of April 6, 1998 (the "Contribution Agreement");
and
WHEREAS, Contributor and the Operating Partnership wish to amend the
Contribution Agreement so as to extend the Inspection Period.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, it is agreed as
follows:
1. The definition of "Inspection Period" on page 2 of the Contribution
Agreement is hereby amended to provide that the Inspection Period shall expire
at 7:00 PM on May 6, 1998.
2. Except as expressly amended hereby, the parties acknowledge that the
Contribution Agreement is and remains in full force and effect and has not been
further modified or amended.
3. To induce Contributor to enter into this Amendment, Operating
Partnership hereby warrants that is has full power and authority to bind all
Partners by entering into this instrument.
4. This instrument may be executed and delivered via facsimile
transmission.
IN WITNESS WHEREOF, the parties have executed this instrument as of the
date above set forth.
BAY-GARD, LTD.
By: Midway Holdings, Inc.
General Partner
By: /s/ Xxxx Xxx Xxxxxx
---------------------------
Name: Xxxx Xxx Xxxxxx
-------------------------
Title: President
------------------------
KIMCO BRADENTON 698, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxx
Vice President
AMENDMENT NO. 2 TO CONTRIBUTION AGREEMENT
This Amendment No. 2 to Contribution Agreement, made as of this 6th day of
May, 1998, between BAYGARD, LTD. a Florida Limited Partnership (the "Operating
Partnership"), and Kimco Bradenton 698, Inc., a Florida corporation (the
"Contributor").
WITNESSETH
WHEREAS, Contributor, the Operating Partnership and the partners of the
Operating Partnership (collectively, the "Partners") entered into that certain
Contribution Agreement dated as of April 6, 1998, as amended on May 5, 1998
(the "Contribution Agreement"); and
WHEREAS, Contributor and the Operating Partnership wish to amend the
Contribution Agreement so as to amend the form of Partnership Agreement for the
Operating Partnership.
NOW THEREFORE, in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration, the receipt
and sufficiency of which is hereby mutually acknowledged, it is agreed as
follows:
1. Exhibit 15 of the Contribution Agreement (the Amended and Restated
Limited Partnership Agreement of Bay-Gard, Ltd.) is amended as follows:
(a) Section 7.1.A(4) is amended by deleting the words "except as
restricted pursuant to Section 7.1.C hereof".
(b) Section 8.6 is amended by adding the following to the end of the
section:
"E. The General Partner may require that every Limited Partner
Exchange all of the Partnership Units of the Limited Partners in connection
with the sale or disposition by the Partnership of all or substantially
all of the real properties of the Partnership to other than an Affiliate of the
General Partner, subject to compliance with Section 7.2.D(2). In such event,
the Exchange shall occur and be effective immediately prior to the date of such
sale or disposition and the General Partner shall be deemed to have acquired all
of the Partnership Units (and all capital accounts) prior to any Liquidating
Event of the Partnership."
(c) Section 7.2.D(2) is amended by inserting the words "or a loan secured
by any real property of the Partnership" after the words "tax-free transaction"
in the first line thereof and clause (ii) thereof shall be deleted.
2. Except as expressly amended hereby, the parties acknowledge that the
Contribution Agreement is and remains in full force and effect and has not been
further modified or amended.
3. To induce Contributor to enter into this Agreement, Operating
Partnership hereby warrants that it has full power and authority to bind all
Partners by entering into this instrument.
4. This instrument may be executed and delivered in counterparts via
facismile transmission.
IN WITNESS WHEREOF, the parties have executed this instrument as of the
date above set forth.
BAY-GARD, LTD.
By: Midway Holdings, Inc.
General Partner
By: /s/ Xxxx Xxx Xxxxxx
---------------------------
Name: Xxxx Xxx Xxxxxx
-------------------------
Title: President
------------------------
KIMCO BRADENTON 698, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxx
Vice President
