1
EXHIBIT 99.2
ASSIGNMENT AND ASSUMPTION OF PURCHASE AGREEMENTS
THIS ASSIGNMENT AND ASSUMPTION OF PURCHASE AGREEMENTS (this
"Assignment"), dated as of October 3, 1997, is entered into by and between
XXXXXXX WEST INVESTMENT CORPORATION, a Delaware corporation ("Assignor"), and
AIP-SWAG OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("Assignee").
RECITALS
WHEREAS, Assignor, acting on the behalf of Xxxxxxx West Acquisition
Company, LLC and AG Industrial Investors, L.P. (collectively, the "Contributor
Parties"), entered into, as "Purchaser," each of those certain Purchase
Agreements described on Schedule 1 attached thereto (collectively, the
"Purchase Agreements"). Capitalized terms used herein and not otherwise
defined herein shall have the same meanings as set forth in the Purchase
Agreements.
WHEREAS, Assignor and Assignee entered into that certain Contribution
and Exchange Agreement dated as of September 25, 1997 (the "Contribution
Agreement"), pursuant to which, among other matters, Assignor agreed to assign
to Assignee all of its rights under the Purchase Agreements, and Assignee
agreed to assume all of Assignor's obligations under the Purchase Agreements.
WHEREAS, pursuant to Paragraph 17(c) of each of the Purchase
Agreements, Assignor has the right to assign each of the Purchase Agreements
upon notice to each Seller (but without any requirement of obtaining any
Seller's consent) to one or more entities in which Xxxx X. Xxxxxxx, Xxx X.
Xxxxxxx and/or Xxxxx X. Xxxxxxxx, directly or indirectly, has an ownership
interest.
WHEREAS, Xxxx X. Xxxxxxx, Xxx X. Xxxxxxx and/or Xxxxx X. Xxxxxxxx,
directly or indirectly, have an ownership interest in Assignee.
WHEREAS, Assignor desires to assign to Assignee of all its right, title
and interest in, to and under the Purchase Agreements, and Assignee desires to
accept the assignment thereof and assume Assignor's obligations thereunder.
AGREEMENT
NOW, THEREFORE, in consideration of the agreements and conditions
contained herein and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignor, acting on the behalf of the Contributor Parties,
hereby assigns to Assignee all of its right, title and interest in, to and
under the Purchase Agreements, including, without limitation, all of Assignor's
right to purchase each Property pursuant to the terms of the Purchase
Agreements, and Assignee hereby accepts such assignment.
2
2. Assignee hereby assumes all of Assignor's obligations under the
Purchase Agreements and agrees fully and faithfully to perform and discharge,
as and when performance and discharge are due, all of such obligations,
regardless of whether such obligations arose or arise or accrued or accrue in
connection with events occurring prior to, on or after the date hereof.
Without limiting the foregoing, Assignee agrees to pay each Purchase Price
(subject to proration, adjustments and credits as set forth in each Purchase
Agreement) and to execute and deliver all documents required to be delivered by
Purchaser pursuant to Paragraph 8(d) of each Purchase Agreement.
3. If either party hereto fails to perform any of its obligations
under this Assignment or if a dispute arises between the parties hereto
concerning the meaning or interpretation of any provision of this Assignment,
then the defaulting party or the party not prevailing in such dispute shall pay
any and all costs and expenses incurred by the other party on account of such
default and/or in enforcing or establishing its rights hereunder, including,
without limitation, court costs and attorneys' fees and disbursements. Any
such attorneys' fees and other expenses incurred by either party in enforcing a
judgment in it favor under this Assignment shall be recoverable separately from
and in addition to any other amount included in such judgment, and such
attorneys' fees obligation is intended to be severable from the other
provisions of this Assignment and to survive and not be merged into any such
judgment.
4. Subject to limitations on assignability set forth in the
Contribution Agreement, this Assignment shall be binding on and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors in interest and assigns.
5. This Assignment shall be governed by and construed in
accordance with the laws of the State of Texas.
6. In the event that any portion of this Assignment shall be
illegal, null or void, the remaining portions of this Assignment shall not be
affected thereby and shall remain in force and effect to the fullest extent
permitted by law.
7. This Assignment may be executed in counterparts (including
facsimile counterparts), all of which, when taken together, shall constitute a
fully executed original.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the day and year first above written.
Assignor: XXXXXXX WEST INVESTMENT CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Its: President
------------------------------------
3
Assignee: AIP-SWAG OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: American Industrial Properties
REIT, a Texas real estate
investment trust, its General
Partner
By: /s/ Xxxx X. Xxxxxxx
------------------------
Its: Vice President
------------------------
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
GENERAL PARTNER:
AMERICAN INDUSTRIAL PROPERTIES REIT,
a Texas real estate investment trust
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
LIMITED PARTNERS:
XXXXXXX WEST ACQUISITION COMPANY, LLC,
a California limited liability company
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------
Title: Managing Member
----------------------------------
AG INDUSTRIAL INVESTORS, L.P.,
a Delaware limited partnership
By: AG Industrial Investors
Acquisition Corp., a Delaware
corporation, its General Partner
By: /s/ Xxxx Xxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxx
---------------------------
Title: Vice President
--------------------------
5
Schedule 1
That certain Purchase Agreement dated as of July 2, 1997, executed by
and between Xxxxxxx West Investment Corporation, a Delaware corporation, as
Purchaser, and Merit Industrial Properties Limited Partnership, a Texas limited
partnership, as Seller, covering certain tracts of land in the City of Dallas,
Dallas County, Texas, and in the City of Grapevine, Tarrant County, Texas, as
amended by (i) First Amendment to Purchase Agreement dated as of July 30, 1997,
(ii) Second Amendment to Purchase Agreement dated as of July 31, 1997, (iii)
Third Amendment to Purchase Agreement dated as of August 8, 1997, (iv) Fourth
Amendment to Purchase Agreement dated as of August 12, 1997, and (v) Fifth
Amendment to Purchase Agreement dated as of October 2, 1997
That certain Purchase Agreement dated as of July 2, 1997, executed by
and between Xxxxxxx West Investment Corporation, a Delaware corporation, as
Purchaser, and Merit 1995 Industrial Portfolio Limited Partnership, a Texas
limited partnership, as Seller, covering certain tracts of land in the City of
Dallas, Dallas County, Texas, in the City of Grand Prairie, Tarrant County,
Texas, in the City of Plano, Collin County, Texas, and in the City of
Carrollton, Dallas County, Texas, as amended by (i) First Amendment to Purchase
Agreement dated as of July 30, 1997, (ii) Second Amendment to Purchase
Agreement dated as of July 31, 1997, (iii) Third Amendment to Purchase
Agreement dated as of August 8, 1997, and (iv) Fourth Amendment to Purchase
Agreement dated as of August 12, 1997
That certain Purchase Agreement dated as of July 2, 1997, executed by
and between Xxxxxxx West Investment Corporation, a Delaware corporation, as
Purchaser, and Merit VV 1995 Industrial Portfolio Limited Partnership, a Texas
limited partnership, as Seller, covering certain tracts of land in the City of
Farmers Branch, Dallas County, Texas, as amended by (i) First Amendment to
Purchase Agreement dated as of July 30, 1997, (ii) Second Amendment to Purchase
Agreement dated as of July 31, 1997, (iii) Third Amendment to Purchase
Agreement dated as of July 31, 1997, (iv) Fourth Amendment to Purchase
Agreement dated as of August 12, 1997, and (v) Fifth Amendment to Purchase
Agreement dated as of October 2, 1997
That certain Purchase Agreement dated as of June 30, 1997, executed by
and between Xxxxxxx West Investment Corporation, a Delaware corporation, as
Purchaser, and Merit VV Land 1995 Industrial Portfolio Limited Partnership, a
Texas limited partnership, as Seller, covering certain tracts of land in the
City of Farmers Branch, Dallas County, Texas, as amended by (i) First Amendment
to Purchase Agreement dated as of July 30, 1997, (ii) Second Amendment to
Purchase Agreement dated as of July 31, 1997, (iii) Third Amendment to Purchase
Agreement dated as of July 31, 1997, and (iv) Fourth Amendment to Purchase
Agreement dated as of August 12, 1997
