CONFORMED COPY
MANAGEMENT CONTRIBUTION AGREEMENT
dated as of August 20, 1997
among
AMERICAN REAL ESTATE INVESTMENT, L.P.,
AMERICAN REAL ESTATE INVESTMENT CORPORATION,
XXXXXXX XXXXXX
and
PENN SQUARE PROPERTIES, INC.
THE SECURITIES OFFERED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISK OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience only.
Page
ARTICLE I.
CONTRIBUTION AND CLOSING
1.01 Contribution................................................... 1
1.02 Contribution; LP Units......................................... 1
(a) Contribution Consideration............................... 1
(b) Issuance of LP Units..................................... 2
(c) Transfer Restrictions.................................... 2
(d) Lock-Up Period........................................... 2
1.03 Closing........................................................ 3
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF XXXXXX AND PENN SQUARE
2.01 Organization................................................... 3
2.02 Authority...................................................... 3
2.03 Subsidiaries and Affiliates.................................... 4
2.04 Capitalization................................................. 4
2.05 No Material Adverse Change..................................... 4
2.06 Business Contracts............................................. 4
2.07 Acquisition Contracts.......................................... 5
2.08 Other Contracts................................................ 5
2.09 Acquisition Properties......................................... 5
2.10 No Conflict.................................................... 5
2.11 Books and Records.............................................. 6
2.12 Certificate of Incorporation and By-Laws....................... 6
2.13 Financial Statements........................................... 6
2.14 Undisclosed Liabilities........................................ 6
2.15 Legal Proceedings.............................................. 6
2.16 Property....................................................... 7
2.17 Leases......................................................... 7
2.18 Employee Relations............................................. 7
2.19 Licenses and Permits........................................... 8
2.20 Title; Liens................................................... 8
2.21 Compliance with Laws........................................... 8
2.22 United States Person........................................... 8
2.23 Insurance...................................................... 8
2.24 Remaining Assets and Liabilities............................... 9
(i)
Page
2.25 Investment Representation...................................... 9
2.26 Brokers........................................................ 9
2.27 Taxes.......................................................... 9
2.28 S Corporation Status........................................... 9
ARTICLE III.
COVENANTS OF XXXXXX AND PENN SQUARE
3.01 Regulatory and Other Approvals................................. 10
3.02 Notice of Events............................................... 10
3.03 Fulfillment of Conditions...................................... 10
3.04 Change in Conditions........................................... 11
3.05 Issuance of the Preferred Stock................................ 11
3.06 Financial Statements........................................... 11
3.07 Employment Agreement........................................... 11
ARTICLE IV.
CONDITIONS TO OBLIGATIONS OF XXXXXX AND PENN SQUARE
4.01 Satisfaction of Conditions to Transaction Agreements........... 11
4.02 Warrant........................................................ 12
4.03 Employment Agreement........................................... 12
ARTICLE V.
CONDITIONS TO OBLIGATIONS OF THE OPERATING PARTNERSHIP
5.01 Representations and Warranties................................. 12
5.02 Officer's Certificate.......................................... 12
5.03 Performance.................................................... 12
5.04 Acquisition Contracts.......................................... 12
5.05 Employment Agreement........................................... 12
5.06 Master Investment Agreement.................................... 12
ARTICLE VI.
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
6.01 Survival of Representations, Warranties, Covenants and Agreements 13
6.02 Indemnification................................................ 13
(ii)
Page
ARTICLE VII.
TERMINATION
7.01 Termination.................................................... 13
7.02 Effect of Termination.......................................... 13
ARTICLE VIII.
DEFINITIONS
8.01 Definitions.................................................... 13
ARTICLE IX.
CLOSING DELIVERIES
9.01 Xxxxxx......................................................... 14
(a) Preferred Stock Certificate.............................. 14
(b) Articles of Amendment.................................... 14
9.02 The Operating Partnership...................................... 14
(a) Warrants................................................. 15
(b) Partnership Agreement.................................... 15
ARTICLE X.
MISCELLANEOUS
10.01 Notices........................................................ 15
10.02 Entire Agreement............................................... 15
10.03 Expenses....................................................... 15
10.04 Waiver......................................................... 15
10.05 Amendment...................................................... 15
10.06 No Third Party Beneficiary..................................... 15
10.07 No Assignment; Binding Effect.................................. 16
10.08 Headings....................................................... 16
10.09 Invalid Provisions............................................. 16
10.10 Jurisdiction................................................... 16
10.11 Governing Law.................................................. 16
10.12 Counterparts................................................... 16
10.13 No Personal Recourse........................................... 16
(iii)
This MANAGEMENT CONTRIBUTION AGREEMENT dated as of August 20, 1997
(this "Agreement") is made and entered into by and among XXXXXXX XXXXXX
("Xxxxxx"), PENN SQUARE PROPERTIES, INC., a Pennsylvania subchapter S
corporation ("Penn Square"), AMERICAN REAL ESTATE INVESTMENT, L.P., a Delaware
limited partnership (the "Operating Partnership") and AMERICAN REAL ESTATE
INVESTMENT CORPORATION, a Maryland corporation (the "Company"). Capitalized
terms used in this Agreement and not defined in this Agreement have the meanings
specified in the Master Investment Agreement dated as of the date hereof, by and
among the Company, the Operating Partnership, Xxxxxx, Penn Square and the other
parties thereto (the "Master Investment Agreement").
RECITALS
X. Xxxxxx desires to contribute the Preferred Stock (as defined
below) to the Operating Partnership in exchange for the Contribution
Consideration (as defined below).
X. Xxxxxx is a party to the Master Investment Agreement and the
contribution by Xxxxxx pursuant to this Agreement is among the transactions
contemplated by the MasterInvestment Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I.
CONTRIBUTION AND CLOSING
1.01 Contribution. At the Closing, Xxxxxx shall contribute and
convey to the Operating Partnership, and the Operating Partnership shall accept
and assume from Xxxxxx, for the Contribution Consideration, and pursuant to the
terms and subject to the conditions set forth in this Agreement, all of Xxxxxx'x
right, title and interest in and to all of the 190,000 shares of Class A
preferred stock, par value $.01 per share (the "Preferred Stock"), of Penn
Square.
1.02 Contribution; LP Units.
(a) Contribution Consideration. In consideration for Xxxxxx'x
contribution of all of the Preferred Stock and in exchange therefor, the
following shall be issued to Xxxxxx by the Operating Partnership (the
"Contribution Consideration") (i) that number of LP Units (as defined below)
having an aggregate value, calculated as provided in Section 1.02(b), equal to
$4,000,000 (the "Total LP Unit Value"); and (ii) warrants (the "Warrants")
(exercisable for a period of seven years from the Closing Date) to purchase
250,000 LP Units at a price of $11.00 per LP Unit, substantially in the form
attached hereto as Exhibit A. If the calculation of the Contribution
Consideration would result in a fraction of an LP Unit being delivered to
Xxxxxx, then such number of LP Units shall be rounded to the nearest whole
number of LP Units.
(b) Issuance of LP Units.
(i) Units of limited partnership interest in the Operating
Partnership (the "LP Units") shall be issued and delivered at the
Closing to Xxxxxx. The LP Units shall be exchangeable at the option
of the holder thereof for shares ("Conversion Shares") of the common
stock, par value $.001 per share, of the Company, as provided in the
Partnership Agreement (as defined below).
(ii) The number of LP Units to be delivered in satisfaction of
payment of the Total LP Unit Value shall be the number of units
equal to the Total LP Unit Value divided by the Per Unit Purchase
Price.
(c) Transfer Restrictions. Xxxxxx agrees that he may only sell,
transfer, assign, pledge or encumber, or otherwise convey any or all of the LP
Units and Warrants delivered to him in connection with this transaction and, if
applicable, any Conversion Shares in strict compliance with this Agreement, the
Partnership Agreement, the terms of the Warrants, the charter documents of the
Company, the registration and other provisions of the Securities Act of 1933, as
amended (and the rules promulgated thereunder)(the "Securities Act"), any state
securities laws, and the rules of the American Stock Exchange, in each case as
may be applicable. With respect to any Conversion Shares, Xxxxxx shall have the
registration rights set forth in the Partnership Agreement.
(d) Lock-Up Period. Xxxxxx agrees that for a period of two years
following the Closing (the "Lock-Up Period") he may not, in any way or to any
extent, redeem (pursuant to the Partnership Agreement or otherwise), sell,
transfer, assign, or (without the Operating Partnership's consent which shall
not be unreasonably withheld) pledge or encumber, or otherwise convey any or all
of the LP Units or Conversion Shares, as the case may be, delivered to Xxxxxx in
connection with this transaction; and that not more than 25% of the LP Units or
Conversion Shares owned by Xxxxxx may be sold in the three-month period
following the initial two year Lock-Up Period, and an additional 25% of such LP
Units and Conversion Shares may be sold in each three-month period thereafter
(so that all LP Units and Conversion Shares may be sold after the third
anniversary of the Closing Date); provided that transfers may be made, subject
to the restrictions hereof and under the Partnership Agreement, to Permitted
Transferees. The term "Permitted Transferee" shall mean Xxxxxx'x spouse; a
parent or lineal descendant (including an adopted child) of a parent, or the
spouse of a lineal descendant of a parent; a trustee, guardian or custodian for,
or an executor, administrator or other legal representative of the estate of,
Xxxxxx, or a trustee, guardian or custodian for a Permitted Transferee of
Xxxxxx; the trustee of a trust (including a voting trust) for the benefit of
Xxxxxx; and a corporation, partnership or other entity of which Xxxxxx and
Permitted Transferees of Xxxxxx are the beneficial owners of a majority in
voting power of the equity, and who (i) is an Accredited Investor(as
2
defined in Rule 501 under the Securities Act); and (ii) agrees in writing in an
instrument reasonably acceptable to the Operating Partnership to be bound by the
restriction on transfer of the LP Units and Conversion Shares contained in this
Agreement and by the obligations contained in the indemnification provisions in
Section 6.02 of the Master Investment Agreement, provided that such obligation
shall be limited to the LP Units and Conversion Shares actually received by such
Permitted Transferee, and such Permitted Transferee shall not be liable for
money damages or otherwise.
1.03 Closing. The contribution of the Preferred Stock and delivery
of the Contribution Consideration shall be consummated at the Closing, which
will take place at the place and at the time on the Closing Date designated in
the Master Investment Agreement. At the Closing, there shall also be delivered
to the Company, the Operating Partnership, Xxxxxx and Penn Square the
certificates and other documents and instruments required to be delivered under
this Agreement and under the Master Investment Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF XXXXXX AND PENN SQUARE
Xxxxxx and Penn Square, jointly and severally, represent and warrant
to the Operating Partnership that the following matters are true as of the date
hereof and at Closing:
2.01 Organization. Penn Square is duly organized and validly
existing and in good standing under the laws of the State of Pennsylvania and
has all requisite power and authority to own, lease and operate its properties
and assets as they are now owned, leased and operated and carry on its business
as now conducted and presently proposed to be conducted. Penn Square is duly
qualified, licensed or admitted to do business and is in good standing in those
jurisdictions in which the ownership, use, or leasing of its assets and
properties, or the conduct or nature of its business makes such qualification,
licensing or admission necessary, except for failures to be so qualified,
licensed or admitted and in good standing individually or in the aggregate would
not have a Material Adverse Effect (as defined herein).
2.02 Authority. Each of Xxxxxx and Penn Square has the full legal
right and power and all authority and approval required to enter into, execute
and deliver this Agreement and to perform fully its obligations hereunder. The
execution and delivery of this Agreement and the other documents delivered by
Xxxxxx and Penn Square, and the performance of all obligations of Xxxxxx and
Penn Square under this Agreement and such other documents by Xxxxxx and Penn
Square, have been duly authorized, and this Agreement is binding on Xxxxxx and
Penn Square and enforceable against Xxxxxx and Penn Square in accordance with
its terms. Other than those which have been obtained prior to the date hereof,
no consent of any creditor, investor, partner, shareholder (other than Xxxxxx),
tenant-in-common of Xxxxxx or Penn Square, judicial or administrative body,
Governmental or Regulatory Authority, or other governmental body or agency, or
other party to such execution, delivery and performance by Xxxxxx and Penn
Square is required. Neither the execution of this Agreement nor the consummation
of the transactions contemplated hereby by Xxxxxx and Penn Square will (i)
result in a breach of, default under, or
3
acceleration of, any agreement to which Xxxxxx or Penn Square is a party or by
which Xxxxxx or Penn Square is bound; or (ii) violate any restriction, court
order, agreement or other legal obligation to which Xxxxxx or Penn Square is
subject.
2.03 Subsidiaries and Affiliates. On the Closing Date, Penn Square
will not own, directly or indirectly, any capital stock of, or any other
interest in, any corporation, limited liability company, general partnership,
limited partnership, proprietorship, trust or other entity.
2.04 Capitalization. On the Closing Date, all of the issued and
outstanding shares of capital stock of Penn Square will be owned directly by
Xxxxxx. At the Closing, the authorized capital stock of Penn Square will consist
of (i) 10,000 shares of common stock; 4,000 shares of which will be owned by
Xxxxxx, 3,000 shares of which will be transferred by Xxxxxx to Xxxxxx Bay and
3,000 shares of which will be transferred by Xxxxxx to XxXxxxx; and (ii) 190,000
shares of Preferred Stock, all of which will be transferred by Xxxxxx to the
Operating Partnership hereunder. No options, warrants, calls, commitments or
other rights to acquire, sell or issue shares of capital stock or other equity
interests of Penn Square, whether upon conversion of other securities or
otherwise, are outstanding and there is no agreement or understanding with
respect to the voting of such capital stock or other equity interests.
2.05 No Material Adverse Change. Since December 31, 1996, there has
been no material adverse change in the assets, properties, business, operations,
income or condition (financial or otherwise) of Penn Square, nor is any such
change threatened, nor has there been any damage, destruction or loss which
could have a Material Adverse Effect, whether or not covered by insurance, and
Penn Square has conducted its business only in the ordinary course consistent
with past practice.
2.06 Business Contracts. Schedule 2.06 contains a true, correct and
complete list of all contracts, agreements and arrangements to which Penn Square
is a party and which relate to management, leasing and/or brokerage services
performed by Penn Square (collectively, the "Business Contracts"). True, correct
and complete copies of the Business Contracts have been delivered or made
available to the Operating Partnership. Schedule 2.06 accurately sets forth for
each Business Contract any amendments or modifications with respect thereto.
Each Business Contract is in full force and effect and embodies the entire
agreement between the parties thereto. Penn Square has satisfied in full or
provided for all of its liabilities and obligations thereunder requiring
performance prior to the date hereof in all material respects. Penn Square is
not in default in any material respect under any Business Contract, nor, to the
knowledge of Penn Square, are there any existing conditions which, with the
passage of time or the giving of notice or both, would constitute a default in
any material respect under any Business Contract. To the best knowledge of Penn
Square, no other party to any such Business Contract is in default in any
material respect thereunder, nor does any condition exist which, with the
passage of time or the giving of notice or both, would constitute a default in
any material respect on the part of any other party under any Business Contract.
To the knowledge of Penn Square, no other party to a Business Contract has any
right of offset or other similar rights.
4
2.07 Acquisition Contracts. Schedule 2.07 contains a true, correct
and complete list of all contracts and agreements to which Penn Square is a
party relating to the acquisition or purchase of real property (the "Acquisition
Contracts"). True, correct and complete copies of the Acquisition Contracts have
been delivered or made available to the Operating Partnership. Schedule 2.07
accurately sets forth for each Acquisition Contract the name of the other
party(ies) thereto and any amendments or modifications with respect thereto.
Each Acquisition Contract is in full force and effect and embodies the entire
agreement between the parties thereto. Penn Square has satisfied in full or
provided for all its liabilities and obligations thereunder requiring
performance prior to the date hereof in all material respects. Penn Square is
not in default in any material respect under any Acquisition Contract, nor, to
the knowledge of Penn Square, are there any existing conditions which, with the
passage of time or the giving of notice or both, would constitute a default in
any material respect under any Acquisition Contract. To the best knowledge of
Penn Square, no other party to any such Acquisition Contract is in default in
any material respect thereunder, nor does any condition exist which, with the
passage of time or the giving of notice or both, would constitute a default in
any material respect on the part of any other party under any Acquisition
Contract.
2.08 Other Contracts. Schedule 2.08 contains a true, correct and
complete list of all contracts and agreements to which Penn Square is a party
other than Business Contracts and the Acquisition Contracts. Each such contract
is in full force and effect and embodies the entire agreement between the
parties thereto. Penn Square has satisfied in full or provided for all its
liabilities and obligations thereunder requiring performance prior to the date
hereof in all material respects. Neither Penn Square nor, to the best knowledge
of Penn Square, any other party thereto is in default in any material respect
under any such contract.
2.09 Acquisition Properties. Penn Square has performed (or will
have performed prior to Closing) a review and investigation with respect to each
of the properties which is the subject of an Acquisition Contract (collectively,
"Acquisition Properties"), in connection with which Penn Square has reviewed and
analyzed at least the following for each Acquisition Property: operating and
financial statements, leases, significant contracts to be assumed, financing to
be assumed, environmental status, physical and engineering status, status of
title, as-built survey and zoning and permitting matters. Such investigation has
not revealed any issues, other than those which have been disclosed to the
Company or the Operating Partnership, which would have a material adverse impact
on the proposed acquisition of any such Acquisition Property or the purchase
price to be paid in connection therewith.
2.10 No Conflict. Neither the execution and delivery of this
Agreement by Xxxxxx and Penn Square nor the performance by Xxxxxx and Penn
Square of the transactions contemplated hereby will: (a) violate or conflict
with any of the provisions of the Certificate of Incorporation or By-Laws (or
similar governing documents) of Penn Square; (b) except as would not have a
Material Adverse Effect, violate, conflict with, result in the acceleration of,
or entitle any party to accelerate the maturity or the cancellation of the
performance of any obligation under, or result in the creation or imposition of
any Lien in or upon any of the properties or assets of Xxxxxx or Penn Square or
constitute a default (or an event which might, with the passage of time or the
giving of notice, or both, constitute a default) under any mortgage, indenture,
deed of trust, lease, contract (including any Business Contract and any
Acquisition
5
Contract), loan or credit agreement, license or other instrument to which Xxxxxx
or Penn Square is a party or by which it or any of their assets may be bound or
affected; or (c) except as would not have a Material Adverse Effect, violate or
conflict with any provision of any Law or Order applicable to Xxxxxx or Penn
Square, require any consent or approval of or filing or notice with any
Governmental or Regulatory Authority.
2.11 Books and Records. Each of the books and records of Penn Square
(as previously supplied or made available to the Operating Partnership) is true,
correct, complete and current in all material respects and all signatures
contained therein are the true signatures of the persons whose signatures they
purport to be.
2.12 Certificate of Incorporation and By-Laws. Penn Square has
heretofore delivered to the Operating Partnership true, correct and complete
copies of the Certificate or Articles of Incorporation (certified by the
Secretary of State of Pennsylvania) and By-Laws (certified by the secretary of
Penn Square) or similar governing documents of Penn Square as in full force and
effect on the date hereof. Such Certificate or Articles of Incorporation and
By-Laws shall remain in full force and effect on the Closing Date, subject only
to the amendments effected by the Articles of Amendment (as defined below).
2.13 Financial Statements. (i) The audited balance sheets of Penn
Square as of December 31, 1996 and the related audited statements of income,
retained earnings and cash flows for the year then ended, including the
footnotes thereto, certified by Xxxxxx Xxxxxxxx LLP, certified public
accountants, true and complete copies of which have heretofore been delivered to
the Operating Partnership, present fairly, in all material respects, the
financial position of Penn Square as at such date and the results of operations
and cash flows of Penn Square for the year then ended, in each case, in
accordance with GAAP consistently applied for the periods covered thereby (the
"Audited Financial Statements") and (ii) the unaudited balance sheet of Penn
Square as of June 30, 1997 and the related statements of income for the period
then ended, true and complete copies of which have heretofore been delivered to
the Operating Partnership, present fairly, in all material respects, the
financial position of Penn Square as of such date and the results of operations
of Penn Square for the period then ended, in each case in accordance with GAAP
consistently applied for the six-month period covered thereby.
2.14 Undisclosed Liabilities. Except as disclosed on Schedule 2.14,
Penn Square does not have any liabilities, whether or not of a kind required by
GAAP to be set forth on a financial statement, other than (i) liabilities
incurred since December 31, 1996 in the ordinary course of business (none of
which is a liability for breach of contract, breach of warranty, tort,
infringement, claim or lawsuit), none of which individually or in the aggregate,
is material to the business, operations, income, condition (financial or
otherwise), assets or properties of Penn Square or (ii) liabilities disclosed
and reflected as liabilities on the Audited Financial Statements for Penn Square
delivered to the Operating Partnership.
2.15 Legal Proceedings. There are no outstanding Orders by which
Xxxxxx or Penn Square or any of their securities, assets, properties or
businesses, as applicable, are bound. Except as disclosed on Schedule 2.15,
there are no actions, suits, arbitrations or proceedings pending or, to the
knowledge of Penn Square, threatened (whether or not the defense thereof or
6
liabilities in respect thereof are covered by insurance) against or affecting,
nor to the knowledge of Penn Square are there any Governmental or Regulatory
Authority investigations pending or threatened against, Xxxxxx or Penn Square
or any of their assets, properties or businesses, nor are there any facts which
are likely to give rise to any such action or proceeding which if adversely
decided, would have a Material Adverse Effect.
2.16 Property.
(a) Schedule 2.16(a) contains a true and complete list of (i) all
assets owned or leased by Penn Square which constitute real property (the "Real
Property") and (ii) all material assets owned or leased by Penn Square that
constitute tangible personal property (the "Tangible Personal Property" and,
together with the Real Property, the "Penn Square Assets"). The Penn Square
Assets are all the assets owned or leased by Penn Square and used in (or
necessary for) its business. Except as set forth in Schedule 2.16(a), Penn
Square has, and upon consummation of the Closing will continue to have, good and
marketable title to all of the Penn Square Assets that are not licensed or
leased to Penn Square, in each case free and clear of all Liens. The Penn Square
Assets are in good working condition and free of material defects, ordinary wear
and tear excepted. None of the Penn Square Assets, nor the operation or
maintenance thereof, violates in any material respect, any restrictive covenant
or any provision of any federal, state or local law, ordinance, rule or
regulation or encroaches on any property owned by others. No condemnation or
similar proceeding is pending or threatened with respect to any Penn Square
Asset.
(b) Schedule 2.16(b) contains a true and complete list of all
Intangible Property owned by Penn Square and used in (or necessary for) its
business. None of the Intangible Property infringes upon the rights of any other
person or, to the knowledge of Penn Square, is infringed upon by any other
person or its property and Penn Square has not received any notice of any claim
of any other person relating to any of the Intangible Property or any process or
confidential information of Penn Square and Penn Square does not know of any
basis for any such charge or claim. Except for the Intangible Property, no other
intellectual property or intangible property rights are required for Penn Square
to conduct its business in the ordinary course consistent with past practice.
All of the Intangible Property is valid and in good standing.
2.17 Leases. Schedule 2.17 contains a true and complete list of all
real property leases and material equipment leases to which Penn Square is
party, and true and correct copies of all such leases have previously been
furnished or made available to the Operating Partnership. All such leases are in
full force and effect, and there are no existing payment or other defaults with
respect thereto that entitle, or with the passage of time would entitle, the
lessor to terminate any such lease, except where the failure of a lease to be in
full force and effect and for such defaults the existence of which would not
have a Material Adverse Effect.
2.18 Employee Relations. Except as disclosed on Schedule 2.18, Penn
Square is not a party to, and there does not otherwise exist, any agreement with
any labor organization, or any collective bargaining or similar agreement with
respect to employees of Penn Square. There are no complaints, grievances or
arbitrations, employment-related litigation, administrative
7
proceedings or controversies either pending or, to the best knowledge of Penn
Square, threatened, involving any employee, applicant for employment, or former
employee of Penn Square against Penn Square. During the past five (5) years,
Penn Square has not suffered or sustained any labor dispute resulting in any
work stoppage and no such work stoppage is, to the best knowledge of Penn
Square, threatened.
2.19 Licenses and Permits. Schedule 2.19 sets forth a list of the
government permits, licenses, registrations and other governmental consents and
authorizations (federal, state, local and foreign) (collectively, "Permits")
which Penn Square has obtained in connection with its assets, properties and
business. Except as set forth on Schedule 2.19, no Permits (including Permits
under Environmental Laws) are required to be obtained by Penn Square in
connection with its properties or business. All such Permits are in full force
and effect and in good standing, and, except as shown on Schedule 2.19, shall
continue to be in full force and effect and in good standing following the
consummation of the transactions contemplated by this Agreement. Penn Square has
not received any notice of any claim of revocation of any such Permits nor has
knowledge of any event which might give rise to such a claim.
2.20 Title; Liens. The Preferred Stock will be duly authorized by
Penn Square for issuance to Xxxxxx and, when issued and delivered by Penn
Square, will be validly issued, fully paid and non-assessable. Upon payment of
the Contribution Consideration and delivery of the Preferred Stock in accordance
herewith, the Operating Partnership will receive good, valid and marketable
title to the Preferred Stock, free and clear of all Liens. The form of stock
certificate to be used to evidence the Preferred Stock will be in due and proper
form and will comply with all applicable legal requirements. The Preferred Stock
and the issuance thereof is not subject to any preemptive or other similar
rights.
2.21 Compliance with Laws. Penn Square (i) is in compliance with
all, and not in violation of any, and has not received any claim or notice that
it is not in compliance in any material respect with, or that it is in violation
in any material respect of, any Law or Order to which Penn Square or any of its
businesses, operations, assets or properties (including the use and occupancy
thereof) are subject and (ii) has not failed to obtain or to adhere to the
requirements of any governmental permit, license, registration and other
governmental consent or authorization necessary in connection with its assets,
properties or business, which non-compliance or violation would have a Material
Adverse Effect.
2.22 United States Person. Xxxxxx is not a "Foreign Person"
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986,
as amended, and shall execute and deliver an "Individual Transferor"
certification at Closing.
2.23 Insurance. Penn Square is insured by insurers of recognized
financial responsibility as set forth on Schedule 2.23. Penn Square has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its businesses at a cost that
would not have a Material Adverse Effect.
8
2.24 Remaining Assets and Liabilities. At the Closing Date, the only
assets of Penn Square will be the Business Contracts and other assets listed on
Schedule 2.24 and the only liabilities of Penn Square will be those listed on
Schedule 2.24.
2.25 Investment Representation. Xxxxxx will acquire the LP Units and
Warrants to be delivered to him at the Closing with the intention of holding
such LP Units and Warrants for purposes of investment and not with a view
towards sale or any other distribution. Xxxxxx has been advised that he may be
required to bear the economic risk of an investment in the LP Units and Warrants
for an indefinite period of time. Xxxxxx is an Accredited Investor. Xxxxxx has
such knowledge and experience in financial and business matters so as to be
fully capable of evaluating the merits and risks of an investment in the LP
Units and Warrants. Xxxxxx has been afforded the opportunity to ask questions of
those persons he considers appropriate and to obtain any additional information
he desires in respect of the LP Units and Warrants and the business, operations,
conditions (financial and otherwise) and current prospects of the Operating
Partnership and the Company. Xxxxxx has consulted his own financial, legal and
tax advisors with respect to the economic, legal and tax consequences of
delivery of the LP Units and Warrants and has not relied on the Operating
Partnership, the Company or any of their officers, directors, affiliates or
professional advisors for such advice as to such consequences.
2.26 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Xxxxxx directly with
the Operating Partnership without the intervention of any Person on behalf of
Xxxxxx in such manner as to give rise to any valid claim by any Person against
the Company or any of its Subsidiaries for a finder's fee, brokerage commission
or similar payment.
2.27 Taxes. All tax returns and reports required to be filed by Penn
Square have been timely filed and all such tax returns are complete and accurate
in all material respects. Penn Square has timely paid all taxes shown as due on
all such tax returns and reports. No requests for waivers of the time to assess
any taxes against Penn Square have been granted or are pending, except for
requests with respect to such taxes that have been adequately reserved for in
the most recent financial statements of Penn Square or, to the extent not
adequately reserved, the assessment of which would not, individually or in the
aggregate, have a Material Adverse Effect. Except as set forth on Schedule 2.27,
to the knowledge of Penn Square, no event has occurred and no condition or
circumstance exists which presents a material risk that any tax will be imposed
on Penn Square. No federal, state or local taxing authority has asserted in
writing any tax deficiency, lien, interest or penalty or other assessment
against Penn Square which has not been paid and there is no pending audit or
inquiry from any federal, state or local tax authority relating to Penn Square
which reasonably may be expected to result in a tax deficiency, lien, interest,
penalty or other assessment against Penn Square which would have, individually
or in the aggregate, a Material Adverse Effect. Since December 31, 0000, Xxxx
Xxxxxx has incurred no liability for taxes except in the ordinary course of
business.
2.28 S Corporation Status. Penn Square is an S corporation that
validly elected to be an S corporation for federal and relevant state income tax
purposes as of its first taxable year, and has maintained its status as an S
corporation at all times thereafter. No event exists or has existed, which
presents a material risk that Penn Square's status as an S corporation is
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or was subject to termination or revocation. Penn Square has not
had and will not have income which would terminate its S corporation status as
described in Section 1362(d)(3)(A) of the Code.
ARTICLE III.
COVENANTS OF XXXXXX AND PENN SQUARE
Xxxxxx and Penn Square covenant and agree with the Operating
Partnership that, at all times from and after the date hereof until the Closing,
Xxxxxx and Penn Square will comply with all covenants and provisions of this
Article III, except to the extent the Operating Partnership may otherwise
consent in writing.
3.01 Regulatory and Other Approvals. Xxxxxx and Penn Square will
(i) take all commercially reasonable steps necessary or desirable, and proceed
diligently and in good faith and use all commercially reasonable efforts, as
promptly as practicable to obtain all consents, approvals or actions of, to make
all filings with and to give all notices to Governmental or Regulatory
Authorities or any other Person required of Xxxxxx and Penn Square to consummate
the transactions contemplated hereby and by the Transaction Agreements to which
it is a party, (ii) provide such other information and communications to such
Governmental or Regulatory Authorities or other Persons as the Company or such
Governmental or Regulatory Authorities or other Persons may reasonably request
and (iii) cooperate with the Company and the Subsidiaries of the Company as
promptly as practicable in obtaining all consents, approvals or actions of,
making all filings with and giving all notices to Governmental or Regulatory
Authorities or other Persons required of the Company or any Subsidiary of the
Company to consummate the transactions contemplated hereby and by the
Transaction Agreements to which it is a party. Xxxxxx and Penn Square will
provide prompt notification to the Company when any such consent, approval,
action, filing or notice referred to in clause (i) above is obtained, taken,
made or given, as applicable, and will advise the Company of any communications
with any Governmental or Regulatory Authority or other Person regarding any of
the transactions contemplated by this Agreement or any of the Transaction
Agreements to which it is a party.
3.02 Notice of Events. Xxxxxx shall promptly notify the Operating
Partnership of (i) any event, condition or circumstance occurring from the date
hereof through the Closing Date that would constitute a violation or breach of
this Agreement, and (ii) any event, occurrence, transaction or other item which
would have been required to have been disclosed on any schedule or statement
delivered hereunder had such event, occurrence, transaction or item existed on
the date hereof, other than items arising in the ordinary course of business
which would not render any representation or warranty of Xxxxxx or Penn Square,
as the case may be, materially misleading.
3.03 Fulfillment of Conditions. Xxxxxx will take all commercially
reasonable steps necessary or desirable and proceed diligently and in good faith
to satisfy each condition to the obligations of the Operating Partnership and
the Company contained in this Agreement
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and will not take or fail to take any action that could reasonably be expected
to result in the nonfulfillment of any such condition.
3.04 Change in Conditions. Xxxxxx shall promptly notify the
Operating Partnership of any change in any condition with respect to Penn
Square, the Acquisition Contracts or the Acquisition Properties, or of the
occurrence of any event or circumstance that makes any representation or
warranty of Xxxxxx or Penn Square, as the case may be, to the Operating
Partnership under this Agreement untrue or misleading, or any covenant of the
Operating Partnership under this Agreement incapable or less likely of being
performed, it being understood that Xxxxxx'x obligation to provide notice to the
Operating Partnership under this Section 3.04 shall in no way relieve Xxxxxx or
Penn Square, as the case may be, of any liability for a breach by Xxxxxx or Penn
Square, as the case may be, of any of its representations, warranties or
covenants under this Agreement.
3.05 Issuance of the Preferred Stock. Prior to Closing, Xxxxxx will
cause Penn Square (i) to amend its articles of incorporation to authorize the
Preferred Stock, with such designations, voting powers, preferences and other
rights as set forth in the articles of amendment of the articles of
incorporation, the form of which is attached hereto as Exhibit B (the "Articles
of Amendment"), and (ii) to issue the Preferred Stock.
3.06 Financial Statements. As promptly as practicable, Penn Square
will deliver to the Company the audited (in the case of any fiscal year ending
after the date hereof and before the Closing Date) and the unaudited (in the
case of any fiscal quarter ending after the date hereof and before the Closing
Date) balance sheet of Penn Square, and the related audited or unaudited
statements of income, retained earnings and cash flows, in each case as of and
for the fiscal year then ended or as of and for each such fiscal quarter and the
portion of the fiscal year then ended, as the case may be.
3.07 Employment Agreement. At Closing, Xxxxxx will enter into an
employment agreement (the "Employment Agreement") with the Company substantially
in the form attached hereto as Exhibit C.
ARTICLE IV.
CONDITIONS TO OBLIGATIONS OF XXXXXX AND PENN SQUARE
The obligations of Xxxxxx and Penn Square hereunder are subject to
the fulfillment, at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by Xxxxxx in his sole
discretion):
4.01 Satisfaction of Conditions to Transaction Agreements. All
conditions precedent to the consummation of the transactions contemplated by
the Master Investment Agreement and the other Transaction Agreements (other
than the condition that the transactions contemplated by this Agreement shall
have been consummated) shall have been satisfied or, if permissible, waived.
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4.02 Warrant. The Company shall have executed and delivered to
Xxxxxx the Warrants.
4.03 Employment Agreement. The Company shall have executed and
delivered the Employment Agreement.
ARTICLE V.
CONDITIONS TO OBLIGATIONS OF THE OPERATING PARTNERSHIP
The obligations of the Operating Partnership hereunder are subject
to the fulfillment, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part by the
Operating Partnership in its sole discretion):
5.01 Representations and Warranties. Each of the representations
and warranties made by Xxxxxx and Penn Square in this Agreement shall be true
and correct in all material respects on and as of the Closing Date as though
such representation or warranty was made on and as of the Closing Date.
5.02 Officer's Certificate. Penn Square shall have furnished to
the Operating Partnership a certificate of an officer, in form and substance
satisfactory to the Operating Partnership.
5.03 Performance. Xxxxxx and Penn Square shall have performed and
complied with, in all material respects, each agreement, covenant and obligation
required by this Agreement to be so performed or complied with by Xxxxxx or Penn
Square, as the case may be, at or before the Closing.
5.04 Acquisition Contracts. Penn Square shall have assigned to
XxXxxxx the Acquisition Contracts.
5.05 Employment Agreement. Xxxxxx shall have executed and
delivered the Employment Agreement.
5.06 Master Investment Agreement. All of the transactions
contemplated in the Master Investment Agreement (other than those contemplated
by this Agreement) shall have been consummated.
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ARTICLE VI.
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
6.01 Survival of Representations, Warranties, Covenants and
Agreements. The representations, warranties, covenants and agreements of Xxxxxx
and Penn Square contained in this Agreement will survive the Closing until the
second anniversary of the Closing Date, except that to the extent any claim for
indemnification is made under the Master Investment Agreement with respect to
any representation, warranty, covenant or agreement that would otherwise
terminate and a notice for indemnification shall have been timely given under
Article VI of the Master Investment Agreement on or prior to such termination
date, then such survival period will be extended as it relates to such claim
until the related claim for indemnification has been satisfied or otherwise
resolved as provided in Article VI of the Master Investment Agreement. This
Section shall not limit in any way the survival and enforceability of any
covenant or agreement of the parties hereto which by its terms contemplates
performance after the Closing Date, which shall survive for the respective
periods set forth herein.
6.02 Indemnification. Indemnification with respect to breaches of
or inaccuracies in any representation or warranty of, or nonfulfillment of or
failure to perform or breach of any covenant or agreement on the part of, Xxxxxx
or Penn Square contained in this Agreement, or on the part of the Company or the
Operating Partnership in the Master Investment Agreement, shall be as provided
in and pursuant to the Master Investment Agreement.
ARTICLE VII.
TERMINATION
7.01 Termination. This Agreement shall be terminated in the event
the Master Investment Agreement is terminated pursuant to its terms.
7.02 Effect of Termination. If this Agreement is validly terminated
pursuant to Section 7.01, this Agreement will forthwith become null and void,
and there will be no liability or obligation on the part of the Operating
Partnership, the Company, Penn Square or Xxxxxx (or any of their respective
officers, directors, employees, agents or other representatives or Affiliates),
except as provided in the Master Investment Agreement.
ARTICLE VIII.
DEFINITIONS
8.01 Definitions. (a) As used in this Agreement, the following
defined terms shall have the meanings indicated below:
"knowledge" of Penn Square means, with respect to any representation
and warranty, the current actual knowledge of Xxxxxxx Xxxxxx.
13
"Material Adverse Effect" means an adverse effect on the condition,
financial or otherwise, or on the earnings, assets, business affairs or business
prospects of Penn Square or any of its Subsidiaries which would be material to
Penn Square and its Subsidiaries, taken as a whole.
"Per Unit Purchase Price" has the meaning ascribed to it in the
Master Investment Agreement.
"Transaction Agreements" means the Master Investment Agreement, the
Merger Agreement, the Stock Purchase Agreement, the XxXxxxx Contribution
Agreement and all agreements and documents to be delivered by the Operating
Partnership, the Company and the Investors in connection with the transactions
contemplated by this Agreement and the Master Investment Agreement.
"Warrant" has the meaning ascribed to it in Section 1.02.
(b) Unless the context of this Agreement otherwise requires, (i)
words of any gender include each other gender; (ii) words using the singular or
plural number also include the plural or singular number, respectively; (iii)
the terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Agreement; (iv) the terms "Article" or "Section" refer to the
specified Article or Section of this Agreement; and (v) the phrases "ordinary
course of business" and "ordinary course of business consistent with past
practice" refer to the business and practice of Penn Square or a Subsidiary. All
accounting terms used herein and not expressly defined herein shall have the
meanings given to them under GAAP.
ARTICLE IX.
CLOSING DELIVERIES
9.01 Xxxxxx. It shall be a condition precedent to the Operating
Partnership's obligations under this Agreement that at the Closing (or such
other times as may be specified below), Xxxxxx shall deliver or cause to be
delivered to the Operating Partnership the following, each in form and substance
reasonably acceptable to the Operating Partnership and its counsel and in
addition to the deliveries required under the Master Investment Agreement:
(a) Preferred Stock Certificate. The stock certificate
evidencing the Preferred Stock.
(b) Articles of Amendment. The Articles of Amendment, certified
by the Secretary of State of Pennsylvania.
9.02 The Operating Partnership. It shall be a condition precedent
to Xxxxxx'x and Penn Square's obligations under this Agreement that at Closing
(or such other times as may be specified below) the Operating Partnership shall
have delivered or caused to be delivered to
14
Xxxxxx the following, each in form and substance reasonably acceptable to
Xxxxxx and its counsel and in addition to the deliveries required under the
Master Investment Agreement:
(a) Warrants. The Warrants to be issued to Xxxxxx.
(b) Partnership Agreement. A copy of the Partnership Agreement,
duly certified by the secretary of the Company as true, complete and correct.
After Closing, each of the Operating Partnership and Xxxxxx shall execute and
deliver to the other such further documents and instruments as the other
reasonably requests to effect this transaction and otherwise effect the
agreements of the parties hereto.
ARTICLE X.
MISCELLANEOUS
10.01 Notices. All notices, requests and other communications
hereunder must be given in the manner provided in the Master Investment
Agreement.
10.02 Entire Agreement. This Agreement and the Transaction
Agreements supersede all prior discussions and agreements between the parties
with respect to the subject matter hereof and thereof and contain the sole and
entire agreement between the parties hereto with respect to the subject matter
hereof and thereof.
10.03 Expenses. Except as otherwise expressly provided in this
Agreement or the Master Investment Agreement, whether or not the transactions
contemplated hereby are consummated, each party will pay its own costs and
expenses, incurred in connection with the negotiation, execution and closing of
this Agreement and the Transaction Agreements and the transactions contemplated
hereby and thereby.
10.04 Waiver. Any term or condition of this Agreement may be waived
at any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
10.05 Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
10.06 No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person.
15
10.07 No Assignment; Binding Effect. Neither this Agreement nor any
right, interest or obligation hereunder may be assigned by any party hereto
without the prior written consent of the other party hereto and any attempt to
do so will be void, except for assignments and transfers by operation of law.
Subject to the preceding sentence, this Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their respective
successors and assigns.
10.08 Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
10.09 Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future Law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
10.10 Jurisdiction. THE PARTIES AGREE THAT ALL DISPUTES BETWEEN ANY
OF THEM ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, AND
WHETHER ARISING IN LAW OR EQUITY OR OTHERWISE, SHALL BE RESOLVED BY THE FEDERAL
OR STATE COURTS LOCATED IN NEW YORK, NEW YORK. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE OTHER IN ANY OTHER
JURISDICTION.
10.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of New York.
10.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
10.13 No Personal Recourse. Notwithstanding anything to the
contrary contained in this Agreement or in any of the Transaction Agreements,
except as otherwise specifically set forth in the Master Investment Agreement
with respect to the Termination Fee, (i) only Xxxxxx (and not Penn Square)
shall be liable for any claims made by non-Xxxxxx/Penn Square parties to this
Agreement or any of the Transaction Agreements, (ii) the non-Xxxxxx/Penn Square
parties to this Agreement and the other Transaction Agreements shall look only
to the LP Units which Xxxxxx will receive in connection with the transactions
contemplated under this Agreement and the Transaction Agreements with respect
to any claims that may be made under this Agreement
16
or any of the Transaction Agreements, and (iii) no other personal
recourse or personal liability for any claims under this Agreement or any of the
Transaction Agreements shall be had against Xxxxxx.
17
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by each party hereto as of the date first above written.
AMERICAN REAL ESTATE INVESTMENT, L.P.
By: American Real Estate Investment Corporation,
its General Partner
By: /s/ XXXX XXXXXX
---------------------------------------------
Name: Xxxx Xxxxxx
Title: President
AMERICAN REAL ESTATE INVESTMENT CORPORATION
By: /s/ XXXX XXXXXX
---------------------------------------------
Name: Xxxx Xxxxxx
Title: President
XXXXXXX XXXXXX
---------------------------------------------
/s/ XXXXXXX XXXXXX
PENN SQUARE PROPERTIES, INC.
By:/s/ XXXXXXX XXXXXX
---------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
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Exhibit A
WARRANT
Exhibit B
ARTICLES OF AMENDMENT
Exhibit C
EMPLOYMENT AGREEMENT
