AGREEMENT
AGREEMENT
THIS
AGREEMENT is entered into and made effective as of August 22, 2005 (the
“Agreement
Date”)
by and
between BROC
PORTFOLIO L.L.C.
(“Seller”),
a
Delaware Limited Liability Company and TANGER
COROC, LLC
(“Buyer”),
a
North Carolina Limited Liability Company. Seller and Buyer are herein sometimes
referred to as the “Parties”.
RECITALS:
A. COROC
Holdings L.L.C. (the “Company”)
is a
Delaware limited liability company operated pursuant to a Limited Liability
Company Agreement dated October 3, 2003 (the “Company
Operating Agreement”).
Capitalized terms used herein which are not otherwise defined herein shall
have
the meanings such terms have in the Company Operating Agreement.
B. Seller
and Buyer are the owners and holders of all of the Company’s Interests.
C. Seller
has agreed to sell to Buyer, and Buyer has agreed to purchase from Seller,
all
of Seller’s Interests in the Company upon and subject to the terms and
conditions of this Agreement.
NOW
THEREFORE, in consideration of the respective agreements and commitments
set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the Parties, the Parties
agree as follows:
1. Basic
Transaction.
1.1 Sale
and Purchase of Seller’s Interests.
On and
subject to the terms and conditions of this Agreement, Seller agrees to sell
to
Buyer, and Buyer agrees to purchase from Seller, all of Seller’s Interests in
the Company (the “Acquired
Interest”).
1.2 Purchase
Price.
Buyer
shall pay Seller at the Closing Two Hundred Eighty-Two Million Five Hundred
Thousand Dollars ($282,500,000.00) (the “Purchase
Price”)
in
cash by wire transfer or delivery of other immediately available guaranteed
U.S.
funds. There shall be no adjustments to the Purchase Price.
1.3 The
Closing.
Provided all conditions precedent for Closing set forth in this Agreement
have
been satisfied or waived by the appropriate party, the consummation of the
transaction contemplated herein (herein called the “Closing”)
shall
take place at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. on the thirtieth (30th)
calendar day (or if such day is not a Business Day, the next succeeding Business
Day) following satisfaction of the condition set forth in Section 4.7, and
notice of such
satisfaction
has been received by both Parties (the “Closing
Date”);
provided however, the Closing shall take place on such earlier Business Day
as
set by Buyer in a written notice (a “Closing
Date Notice”)
received by Seller at least sixteen (16) calendar days (or such shorter notice
period as the Parties shall mutually agree upon) in advance of said earlier
Closing Date; and provided further, unless the Parties mutually agree otherwise,
the Closing Date shall not be later than November 30, 2005.
1.4 Delivery
at Closing.
At the
Closing, (i) Seller will deliver to Buyer the various certificates, instruments
and documents referred to in Paragraph 6.3(a) below, (ii) Buyer will deliver
to
Seller the various certificates, instruments and documents referred to in
Paragraph 6.3(b) below, and (iii) Buyer will pay and deliver to Seller the
consideration specified in Section 1.2 hereof.
1.5 Minimum
Primary Return.
The
Parties agree that contemporaneously with the Closing, as a condition to
Seller’s obligations to close hereunder, the Company shall make a distribution
to Seller pursuant to Section 5.4(a)(i) of the Company Operating Agreement
in an
amount sufficient to reduce Seller’s Primary Return Account to zero.
1.6
Tanger
Management Fee.
The
Parties agree that prior to Closing, as a condition to Buyer’s obligations to
close hereunder, the Company shall pay Tanger Properties Limited Partnership
(“TPLP”)
a pro
rated portion of the Incentive Fee (as defined in the Management Agreement)
payable to TPLP pursuant to the Shopping Center Management Agreement dated
December 19, 2003 (the “Management
Agreement”).
Such
pro rated Incentive Fee shall be an amount determined by multiplying (i)
the
Incentive Fee that would be payable for the full 2005 calendar year if the
Company’s Net Operating Income (as determined in the Management Agreement) for
the year had been $50,340,000 by (ii) a fraction the numerator of which is
the
number of days in 2005 prior to and through the Closing Date and the denominator
of which is 365.
2. Representations
and Warranties of Seller.
Seller
represents and warrants to Buyer that the statements contained in this Section
are correct and complete as of the date of this Agreement and will be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
Section) except as set forth in the Disclosure Schedule delivered by Seller
to
Buyer on the date hereof and initialed by the Parties (the “Seller’s
Disclosure Schedule”).
The
Seller’s Disclosure Schedule will be arranged in paragraphs corresponding to the
lettered and numbered paragraphs contained in this Section 2.
2.1 Representations
and Warranties Concerning the Transaction
(a) Organization
of Seller.
Seller
is a limited liability company duly formed, validly existing and in good
standing under the laws of the State of Delaware.
(b) Authorization
of Transaction.
Seller
has full power and authority (including full power and authority as a limited
liability company) to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of Seller, enforceable in accordance with its terms and conditions.
Seller need not give any notice to, make any filings with, or obtain any
authorization, consent, or approval of, any government or governmental agency
in
order to consummate the transactions contemplated by this Agreement. The
execution, delivery and performance of this Agreement and all other agreements
contemplated hereby have been duly authorized by Seller, including, without
limitation, due authorization by all of Seller’s members.
(c) Noncontravention.
Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge or
other
restriction of any government, governmental agency or court to which Seller
is
subject or any provision of the Articles of Organization or Operating Agreement
of Seller; (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument or other arrangement to which
Seller is a party or by which it is bound or to which any of its assets is
subject; or (iii) result in the imposition or creation of a Lien upon or
with
respect to the Acquired Interest. Seller
is
not required to give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government or governmental agency
in
order for the Parties to consummate the transactions contemplated by this
Agreement.
(d) Brokers’
Fees.
Seller
has no liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this Agreement
for which Buyer could become liable or obligated.
(e) Ownership
and Transfer of Acquired Interest.
Seller
holds of record and owns beneficially the Acquired Interest free and clear
of
any restrictions on transfer (other than any restriction under (i) the
Securities Act and state securities laws, and (ii) the Company Operating
Agreement), taxes, Liens, options, warrants, purchase rights, contracts,
commitments, equities, claims and demands. Seller is not a party to any option,
warrant, purchase right or other contract or commitment (other than this
Agreement and the Company Operating Agreement) that could require Seller
to
sell, transfer or otherwise dispose of any ownership interest in the Company.
Seller is not a party to any agreement or understanding with respect to the
voting of any ownership interest in the Company other than the Company Operating
Agreement.
2.2 Representations
and Warranties Concerning the Company
(a)
Seller has not received notice of, and has no Knowledge of, (i) any third
party
claim against the Company or any of its Subsidiaries, or (ii) any violation
by
the Company or any of its Subsidiaries of any statute, regulation, rule,
injunction, order, decree, ruling, or charge of any government, governmental
agency or court, in each case which claim or violation has not been disclosed
to
Buyer or of which Buyer is not otherwise aware.
(b)
Seller has not taken any action that, to its Knowledge, (i) would bind or
obligate the Company, (ii)
is
in material violation of the Company Operating Agreement, or (iii) would
cause
the Company or any Subsidiary to take any action in violation of the limited
liability company agreement of any of its Subsidiaries, except,
in each case (A) pursuant to a Member Consent approved by the Tanger Member
or
(B) as otherwise permitted by the Company Operating Agreement without a Member
Consent, provided that in the case of this clause (B) Seller has disclosed
such
action to Buyer or Buyer has Knowledge of such action.
3. Representations
and Warranties of Buyer.
Buyer
represents and warrants to Seller that the statements contained in this Section
3 are correct and complete as of the date of this Agreement and will be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
Section 3) except as set forth in the Disclosure Schedule delivered by Buyer
to
Seller on the date hereof and initialed by the Parties (the “Buyer’s
Disclosure Schedule”).
The
Buyer’s Disclosure Schedule will be arranged in paragraphs corresponding to the
lettered and numbered paragraphs contained in this Section 3.
3.1 Organization
of Buyer.
Buyer
is a limited liability company duly formed, validly existing and in good
standing under the laws of the State of North Carolina.
3.2 Authorization
of Transaction.
Buyer
has full power and authority (including full power and authority acting as
a
limited liability company) to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of Buyer enforceable in accordance with its terms and
conditions. Buyer need not give any notice to, make any filings with or obtain
any authorization, consent or approval of any government or governmental
agency
in order to consummate the transactions contemplated by this
Agreement.
3.3 Noncontravention.
Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge or
other
restriction of any government, governmental agency, or court to which Buyer
is
subject or any provision of the articles of organization or operating agreement
of Buyer; or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel or require any notice under any
agreement, contract, lease, license instrument or other arrangement to which
Buyer is a party or by which it is bound or to which any of its assets are
subject. Buyer is not required to give any notice to, make any filing with,
or
obtain any authorization, consent or approval of any government or governmental
agency in order for the Parties to consummate the transactions contemplated
by
this Agreement.
3.4 Brokers’
Fees.
Buyer
has no liability or obligation to pay any fee or commissions to any broker,
finder or agent other than Compass Advisers, LLP (“Compass”)
with
respect to the transactions contemplated by this Agreement for which Seller
could become liable or obligated. Buyer shall pay any fees or commissions
payable to Compass pursuant to a separate agreement between Buyer and
Compass.
4. Pre-Closing
Covenants.
The
Parties agree as follows with respect to the period between the execution
of
this Agreement and the Closing:
4.1 General.
Each of
the Parties will use its reasonable best efforts to take all action and to
do
all things necessary, proper or advisable in order to consummate and make
effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in Section
6
below).
4.2 Notices
and Consents.
Each
Party will give any notices, make any filings with, and use its reasonable
best
efforts to obtain any authorizations, consents and approvals of governments
and
governmental agencies in connection with the matters, if any, referred to
in
Sections 2 and 3 above.
4.3 Operation
of Business.
Seller
will not take any action that (i) would
bind or obligate the Company, (ii)
is
in material violation of the Company Operating Agreement, or (iii) would
cause
the Company or any Subsidiary to take any action in violation of the limited
liability company agreement of any of its Subsidiaries, except,
in each case (A) pursuant to a Member Consent approved by the Tanger Member
or
(B) as otherwise permitted by the Company Operating Agreement without a Member
Consent, provided that in the case of this clause (B) Seller has disclosed
such
action to Buyer or Buyer has Knowledge of such action.
4.4 Intentionally
Omitted.
4.5 Notice
of Developments.
Each
Party will give prompt, written notice to the other Party of any material
adverse development causing a breach of any of its own representations and
warranties in Sections 2 and 3 above. No disclosure by any Party pursuant
to
this Section 4 however, shall be deemed to amend or supplement the Disclosure
Schedule or to prevent or cure any misrepresentation, breach of warranty
or
breach of covenant.
4.6 Exclusivity.
During
the term of this Agreement, Seller will not (and Seller will not exercise
its
rights as a Member of the Company to cause or permit the Company or any of
its
Subsidiaries to) (i) solicit, initiate or encourage the submission of any
proposal or offer from any Person relating to the acquisition of Seller’s
Interests in the Company or any substantial portion of the assets of the
Company
or any of its Subsidiaries; or (ii) participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by
any
Person to do or seek any of the foregoing. During the term of this Agreement,
Seller will not vote its Interests in favor of any such acquisition without
Buyer’s consent, and will notify Buyer immediately if any Person makes any
proposal, offer, inquiry of contract to Seller with respect to any of the
foregoing.
4.7 GMAC
Conditions.
Seller
and Buyer will each use their reasonable best efforts to satisfy such conditions
in connection with the sale and purchase of the Acquired Interest pursuant
to
the loan documents evidencing and securing a loan from GMAC Commercial Mortgage
Corporation in the original aggregate principal amount of $200 Million assumed
by the Company and its Subsidiaries; provided that such reasonable best efforts
shall not be deemed to required either Party to agree to pay GMAC any fees,
prepayments or other amounts except as expressly provided in the loan documents
for such loan. Buyer and Seller shall be responsible for and each shall pay
one-half of any costs or fees associated with satisfying such conditions.
5. Post
Closing Covenants.
The
Parties agree as follows with respect to the period following the Closing:
5.1. General.
In case
at any time after the Closing any further actions are necessary to carry
out the
purposes of this Agreement, each of the Parties will take such further actions
(including the execution and delivery of such further instruments and documents)
as any other Party may reasonably request, all at the sole costs and expense
of
the requesting party (unless the requesting party is entitled to indemnification
therefore under Section 8 of this Agreement). Seller acknowledges and agrees
that, from and after the Closing, Buyer will be entitled to possession of
all
documents, books, records (including tax records), agreements and financial
data
of any sort relating to the Company and its Subsidiaries, provided that Seller
shall be entitled to retain a copy of any such financial data, records,
agreements or documents currently in Seller’s possession to the extent necessary
for Seller’s tax filings, accounting or financial reporting. For a period of
three years after the Closing, at Seller’s request, Buyer shall provide Seller
with reasonable access to the books and records of the Company for the period
prior to the Closing to the extent reasonably necessary for Seller’s tax
filings, accounting or financial reporting, such agreement to survive the
Closing.
5.2 Litigation
Support.
In the
event and for so long as any Party actively is contesting or defending against
any action, suit, proceeding, hearing, investigation, charge, complaint,
claim
or demand in connection with (i) any transaction contemplated under this
Agreement; or (ii) any fact, situation, circumstance, status, condition,
activity, practice, plan, occurrence, event, incident, action, failure to
act or
transaction on or prior to the Closing Date involving the Company or any
of its
Subsidiaries, each of the other Parties will cooperate with it and/or its
counsel in the contest or defense, make available its personnel and provide
such
testimony and access to its books and records as shall be required in connection
with the contest or defense, all at the sole costs and expense of the contesting
or defending party (unless the contesting or defending party is entitled
to
indemnification therefore under Section 8 of this Agreement). This Section
5.2
shall not apply to any action, suit, proceeding, hearing, investigation,
charge,
complaint, claim or demand between Seller and Buyer.
5.3. Intentionally
Omitted.
5.4. Confidentiality.
Seller
will treat and hold as such all of the Confidential Information, refrain
from
using any of the Confidential Information, except in connection with this
Agreement, and deliver promptly to Buyer or destroy, at Seller’s option, all
tangible embodiments (and all copies) of the Confidential Information that
are
in its possession. In the event that Seller is requested or required pursuant
to
oral or written question or request for information or documents in any legal
proceeding, interrogatories, subpoena, civil investigation, demand, or similar
process to disclose any Confidential Information, Seller will notify Buyer
promptly of the request or requirement so that Buyer may seek an appropriate
protective order or waive compliance with the provisions of this sub-section
5.4. If, in the absence of a protective order, or the receipt of a wavier
hereunder, Seller is, on advice of counsel, compelled to disclose any
Confidential Information to any tribunal, Seller may disclose the Confidential
Information to the tribunal; provided, however, that Seller shall use its
reasonable best efforts to obtain, at the reasonable request of Buyer and
at
Buyer’s sole cost and expense, an order or other assurance that confidential
treatment will be accorded to such portion of the Confidential Information
required to be disclosed as Buyer shall designate.
5.5. Intentionally
Omitted.
6. Conditions
to Obligation to Close.
6.1 Conditions
to Obligations of Buyer.
The
obligations of Buyer to consummate the transactions to be performed by it
in
connection with the Closing are subject to satisfaction of the following
conditions:
(a) The
representations and warranties of Seller set forth in Section 2 above shall
be
true and correct in all material respects at and as of the Closing
Date;
(b) Seller
shall have performed and complied with all of its covenants hereunder in
all
material respects through the Closing;
(c) The
Company and its Subsidiaries shall have procured any of the third party consents
specified in Section 2 above and the Seller’s Disclosure Schedule;
(d) No
action, suit or proceeding shall have been brought by any Person (other than
the
parties hereto or any of such parties’ affiliates) and be pending before any
court or quasi judicial or administrative agency of any federal, state, local
or
foreign jurisdiction or before any arbitrator wherein an unfavorable injunction,
judgment, order, decree, ruling or charge would (A) prevent consummation
of any
of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, (C) materially and adversely affect the right of Buyer to acquire
the Acquired Interest or (D) materially and adversely affect the right of
the
Company or any of its Subsidiaries to own its assets and to operate its business
(and no such injunction, judgment, order, decree, ruling or charge shall
be in
effect);
(e) Seller
shall have delivered to Buyer a certificate to the effect that each of the
conditions specified in Paragraphs (a) through (d) of this Section 6.1 is
satisfied in all respects;
(f) Buyer
shall not have terminated this Agreement in accordance with the provisions
of
Sections 7 hereof.
(g) The
opinion of Seller’s counsel provided to Buyer contemporaneously with the
execution of this Agreement shall be updated as of the Closing Date.
(h) Buyer
shall have received the resignations, effective as of the Closing, of each
of
the directors and officers of the Company and its Subsidiaries listed on
Exhibit
6.1(h) attached
hereto;
(i) Buyer
shall have obtained reasonably satisfactory assurances that it shall be able
to
obtain sufficient financing (from third party lenders, public markets, or
otherwise) to consummate the transactions contemplated hereby;
(j) The
Parties, the Company and its Subsidiaries shall have received all other material
authorizations, consents, and approvals of governments and governmental
agencies, if any, described in Sections 2.1(b) and 2.1(c) of the Seller’s
Disclosure Schedule and in Sections 3.2 and 3.3 of the Buyer’s Disclosure
Schedule.
At
least
sixteen (16) calendar days prior to Closing (or in the Closing Date Notice
in
the event of an early Closing Date), Buyer shall give Seller written notice
of
whether or not the conditions described in Section 6.1(i) have been satisfied.
If Buyer notifies Seller in such written notice that the condition in Section
6.1(i) has not been satisfied, or if Buyer fails to timely give such notice,
then Seller shall have the right to immediately terminate this Agreement
by
written notice to Buyer, in which case Buyer shall promptly reimburse Seller
for
all of the out-of-pocket expenses actually incurred by Seller in connection
with
this Agreement and the transactions contemplated hereby (but not to exceed
$25,000), and upon such payment all rights and obligations of the Parties
hereunder shall terminate without any liability or any party to any other
party.
Buyer
may
waive any conditions specified in this Section 6.1 if it executes a writing
so
stating at or prior to the Closing.
6.2 Conditions
to Obligation of Seller.
The
obligation of Seller to consummate the transactions to be performed by it
in
connection with the Closing is subject to satisfaction of the following
conditions:
(a) Representations
and warranties of Buyer set forth in Section 3 above shall be true and correct
in all material respects at and as of the Closing Date;
(b) Buyer
shall have performed and complied with all of its covenants hereunder in
all
material respects through the Closing;
(c) No
action, suit or proceeding shall have been brought by any Person (other than
the
parties hereto or any of such parties’ affiliates) and be pending before any
court or quasi judicial or administrative agency of any federal, state, local
or
foreign jurisdiction or before any arbitrator wherein and unfavorable
injunction, judgment, order, decree, ruling or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement or
(B)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation (and no such injunction, judgment, order, decree,
ruling
or charge shall be in effect);
(d) Buyer
shall have delivered to Seller a certificate to the effect that each of the
conditions specified in Sub-paragraphs (a) through (c) of this Section 6.2
is
satisfied in all respects;
(e) The
Parties, the Company and its Subsidiaries shall have received all other material
authorizations, consents, and approvals of governments and governmental
agencies, if any, described in Sections 2.1(b) and 2.1(c) of Seller’s Disclosure
Schedule and in Sections 3.2 and 3.3 of Buyer’s Disclosure
Schedule.
(f) Seller
shall not have terminated this Agreement in accordance with the provisions
of
Section 7 or the second to last paragraph of Section 6.1 hereof;
and
(g) The
opinion of Buyer’s counsel provided to Seller contemporaneously with the
execution of this Agreement shall be updated as of the Closing
Date.
Seller
may waive any conditions specified in this Section 6.2 if it executes a writing
so stating at or prior to the Closing.
6.3 Closing
Documents; Transfer Taxes.
(a) At
the
Closing, Seller will execute and/or deliver to Buyer all documents necessary
to
consummate the transactions contemplated hereunder, including, without
limitation, the following:
(1) an
assignment by Seller to Buyer in substantially the form attached hereto as
Exhibit
6.3(a)(1)
(the
“Assignment
Agreement”)
transferring all of Seller’s ownership interests in the Company to Buyer;
(2) a
certified copy of a Consent of Members signed by all of the members of Seller
having approval rights over the transactions contemplated herein authorizing
such transactions, the execution and delivery of all documents required to
effectuate such and designating the persons authorized to execute and deliver
such documents on behalf of Seller, together with a certificate of incumbency
with respect to such persons; and
(3) a
release
of the Tanger Guaranty.
(b) At
the
Closing, Buyer will execute and/or deliver to Seller all documents necessary
to
consummate the transactions contemplated hereunder, including, without
limitation, the following:
(1) payment
of the Purchase Price in cash by wire transfer or in other
immediately available
guaranteed U.S. funds;
(2)
the
Assignment Agreement;
(3) a
certified copy of a Consent of Members signed by all of the members of Buyer
authorizing the transactions contemplated herein, the execution and delivery
of
all documents required to effectuate such and designating the persons authorized
to execute and deliver such documents on behalf of Buyer, together with a
certificate of incumbency with respect to such persons; and
(4) a
release
of the Blackstone Guaranty.
(c) Seller
and Buyer will each pay one-half of any transfer or excise tax which is payable
by reason of the transfer of the Acquired Interest pursuant to this Agreement,
whether attributable to the Acquired Interest or to the real property of
the
Company or any of its Subsidiaries.
7. Termination.
7.1 Termination
of Agreement.
Certain
of the Parties may terminate this Agreement as provided below:
(a) Buyer
and
Seller may terminate this Agreement by mutual, written consent at any time
prior
to the Closing;
(b) Buyer
may
terminate this Agreement by giving written notice to Seller at any time prior
to
the Closing (A) in the event Seller has breached any material representation,
warranty or covenant contained in this Agreement in any material respect,
Buyer
has notified Seller of the breach and the breach has continued without cure
for
a period of thirty (30) days after the notice of breach; or (B) if the Closing
shall not have occurred on or before November 30, 2005 by reason of the failure
of any Condition Precedent under Section 6.1 hereof (unless the failure results
primarily from Buyer itself breaching any representation, warranty or covenant
contained in this Agreement); and
(c) Seller
may terminate this Agreement by giving written notice to Buyer at any time
prior
to the Closing (A) in the event Buyer has breached any material representation,
warranty or covenant contained in this Agreement in any material respect,
Seller
has notified Buyer of the breach, and the breach has continued without cure
for
a period of thirty (30) days after the notice of breach or (B) if the Closing
shall not have occurred on or before November 30, 2005 by reason of the failure
of any Conditions Precedent under Section 6.2 hereof (unless the failure
results
primarily from Seller itself breaching any representation, warranty or covenant
contained in this Agreement).
7.2 Effect
of Termination.
If any
Party terminates this Agreement pursuant to Section 7.1 above, all rights
and
obligations of the Parties hereunder shall terminate without any liability
of
any party to any other party (except for any liability of any party then
in
breach).
8. Remedies
for Breaches of This Agreement.
8.1. Survival
of Representations and Warranties.
Except
as provided below, all of the representations and warranties of the Parties
contained in this Agreement (including the representations and warranties
of the
Parties contained in Sections 2.1 and 3 hereof) shall survive the Closing
and
continue in full force and effect until thirty (30) days following the
expiration of the applicable statute of limitations (including any extensions
thereto). All of the covenants of the Parties contained in Section 4 shall
not
survive the Closing. All of the representations of the Seller contained in
Section 2.2 hereof and all of the covenants of the Parties contained in Section
5 shall survive the Closing for a period of one year after the Closing Date.
Seller shall have no liability with respect to any of Seller’s representations
and warranties in Section 2 hereof if, prior to the Closing, Buyer has actual
Knowledge that any such representation or warranty is untrue or incorrect,
and
Buyer nevertheless consummates the transactions contemplated by this Agreement.
8.2. Indemnification
Provisions for Buyer’s Benefit.
In the
event Seller breaches any of its representations, warranties and covenants
contained herein, and provided that Buyer makes a written claim for
indemnification against Seller within the survival period then Seller shall
be
obligated to indemnify Buyer from and against the entirety of any Adverse
Consequences Buyer may suffer (including any Adverse Consequences Buyer may
suffer after the end of any applicable survival period) resulting from, arising
out of, relating to, in the nature of or caused by the breach.
8.3 Indemnification
Provisions for Seller’s Benefit.
In the
event Buyer breaches any of its representations, warranties and covenants
contained herein and provided that Seller makes a written claim for
indemnification against Buyer within the survival period, then Buyer agrees
to
indemnify Seller from and against the entirety of any Adverse Consequences
suffered (including any Adverse Consequences may suffer after the end of
any
applicable survival period) resulting from, arising out of, relating to,
in the
nature of, or caused by the breach.
8.4. Matters
Involving Third Parties.
(a) If
any
third party notifies any Party (the “Indemnified
Party”)
with
respect to any matter (the “Third
Party Claim”)
that
may give rise to a claim for indemnification against any other party (the
“Indemnifying
Party”)
under
this Section 8, then the Indemnified Party shall promptly notify the
Indemnifying Party thereof in writing; provided, however, that no delay on
the
part of the Indemnified Party in notifying any Indemnifying Party shall relieve
the Indemnifying Party from any obligation hereunder unless (and then solely
to
the extent) the Indemnifying Party is thereby prejudiced.
(b) Any
Indemnifying Party will have the right to assume the defense of the Third
Party
Claim with counsel of its choice reasonably satisfactory to the Indemnified
Party at any time within fifteen (15) days after the Indemnified Party has
given
notice of the Third Party Claim; provided, however, that the Indemnifying
Party
must conduct the defense of the Third Party Claim actively and diligently
thereafter in order to preserve its rights in this regard; and provided,
further, that the Indemnified Party may retain separate co-counsel at its
sole
costs and expense and participate in the defense of the Third Party Claim.
(c) So
long
as the Indemnifying Party has assumed and is conducting the defense of the
Third
Party Claim in accordance with Section 8.4(b) above, (A) the Indemnifying
Party
will not consent to the entry of any judgment on or entry into any settlement
with respect to the Third Party Claim without the prior written consent of
the
Indemnified Party (not to be unreasonably withheld) unless the judgment or
proposed settlement involves only the payment of money damages by one or
more of
the Indemnifying Parties and does not impose an injunction or other equitable
relief upon the Indemnified Party and (B) the Indemnified Party will not
consent
to the entry of any judgment on or enter into any settlement with respect
to the
Third Party Claim without the prior written consent of the Indemnifying Party
(not to be unreasonably withheld).
(d) In
the
event the Indemnifying Party does not assume and conduct the defense of the
Third Party Claim in accordance with Section 8.4(b) above (A) the Indemnified
Party may defend against, and consent to the entry of any judgment on or
enter
into any settlement with respect to, the Third Party Claim in any manner
it may
reasonably deem appropriate (and the Indemnified Party need not consult with,
or
obtain any consent from, the Indemnifying Party in connection therewith)
and (B)
the Indemnifying Party will remain responsible for any Adverse Consequences
the
Indemnified Party may suffer resulting from, arising out of, relating to,
in the
nature of, or caused by the Third Party Claim to the fullest extent provided
in
this Section 8.
9. Definitions.
“Acquired
Interest”
shall
have the meaning ascribed to the term in Section 1.1 hereof.
“Adverse
Consequences”
means
all actions, suits, proceedings, hearings, investigations, charges, complaints,
claims, demands, injunctions, judgments, orders, decrees, rulings, damages,
dues, penalties, fines, costs, amounts paid in settlement, Liabilities,
obligations, Taxes, Liens, losses, expenses, and fees, including court costs
and
reasonable attorneys' fees and expenses.
“Business
Day”
means
any day other than a Saturday, Sunday or other day on which commercial banks
in
New York are authorized or required to close under the laws of the State
of New
York and are actually closed.
“Buyer”
means
Tanger COROC, LLC.
“Buyer’s
Disclosure Schedule”
means
the disclosure schedule described in Section 3 hereof.
“Closing”
shall
have the meaning ascribed to the term in Section 1.3 hereof.
“Closing
Date”
shall
have the meaning ascribed to the term in Section 1.3 hereof
“Company”
means
COROC Holdings L.L.C.
“Company
Operating Agreement”
shall
have the meaning ascribed to the term in Rectal A hereof.
“Confidential
Information”
means
any information concerning the business and affairs of the Company and its
Subsidiaries existing as of the Closing Date other than (i) any information
that
is or was already generally available to the public or (ii) was independently
developed by or on behalf of Buyer.
“Knowledge”
means,
(i) with respect to the Seller, the actual knowledge of Xxxxxxxx Xxxx, Xxxx
Xxxxxx or Xxxx Xxxxxxxx, and (ii) with respect to the Buyer, the actual
knowledge of Xxxxxxx K, Tanger, Xxxxxx X. Xxxxxx or Xxxxx
Xxxxxxxxxxx.
“Liability”
means
any liability (whether known or unknown, whether asserted or unasserted,
whether
absolute or contingent, whether accrued or unaccrued, whether liquidated
or
unliquidated, and whether due or to become due), including any liability
for
Taxes.
“Lien”
means
any mortgage, pledge, lien, encumbrance, charge or other security
interest.
“Management
Agreement” shall have the meaning ascribed to the term in Section 1.6
hereof.
“Net
Operating Income”
shall
have the meaning ascribed to the term in Section 1.6 hereof.
“Person”
means
an individual, a partnership, a corporation, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization, or a
governmental entity (or any department, agency or political subdivision
thereof).
“Purchase
Price”
shall
have the meaning ascribed to the term in Section 1.2 hereof.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Seller”
means
BROC Portfolio L.L.C.
“Seller’s
Disclosure Schedule”
means
the disclosure schedule identified in Section 2 hereof
“Subsidiaries”
means
the subsidiaries of the Company set forth on Exhibit
9.
“TFOC”
means
Tanger Factory Outlet Centers, Inc., a North Carolina corporation.
“TPLP”
means
Tanger Properties Limited Partnership, a North Carolina limited
partnership.
10. Miscellaneous.
10.1 Survival
of Representations and Warranties 10.1 Survival
of Representations and Warranties
. All of
the representations and warranties of the Parties contained in this Agreement
shall survive the Closing hereunder as and to the extent provided
herein.
10.2 Press
Releases and Public Announcements 10.2 Press
Releases and Public Announcements
. No
Party shall issue any press release or make any public announcement relating
to
the subject matter of this Agreement prior to the Closing without the prior
written approval of the other Party; provided, however, that any Party may
make
any public disclosure it believes in good faith is required by applicable
law or
any listing or trading agreement concerning its publicly-traded securities
(in
which case the disclosing party will use its reasonable best efforts to advise
the other Party prior to making the disclosure). The Parties understand that
TFOC will be required to make a filing under the Securities Act and to publicly
announce the proposed transaction when this Agreement is signed to comply
with
the Securities Act and the rules of the New York Stock Exchange. Any such
public
announcement shall be a joint statement approved by both Parties.
10.3 No
Third-Party Beneficiaries 10.3 No
Third-Party Beneficiaries
. This
Agreement shall not confer any rights or remedies upon any Person other than
the
Parties and their respective successors and permitted assigns.
10.4 Entire
Agreement 10.4 Entire
Agreement
. This
Agreement (including the documents referred to herein) constitutes the entire
agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral,
to
the extent they related in any way to the subject matter hereof.
10.5 Succession
and Assignment 10.5 Succession
and Assignment
. This
Agreement shall be binding upon and inure to the benefit of the Parties named
herein and their respective successors and permitted assigns. No Party may
assign either this Agreement or any of its rights, interest, or obligations
hereunder without the prior written approval of the other Party.
10.6 Counterparts 10.6 Counterparts
. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which together will constitute one and the
same
instrument.
10.7 Headings 10.7 Headings
. The
section headings contained in this Agreement are inserted for convenience
only
and shall not affect in any way the meaning or interpretation of this
Agreement.
10.8 Notices 10.8 Notices
. All
notices, requests, demands, claims, and other communications hereunder will
be
in writing. Any notice, request, demand, claim or other communication hereunder
shall be deemed duly given (i) when delivered personally to the recipient,
(ii)
two (2) Business Day after being sent to the recipient by reputable overnight
courier service (charges prepaid) or (iii) four (4) Business Days after being
mailed to the recipient by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set
forth
below.
|
If
to Seller, to:
|
BROC
Portfolio L.L.C.
c/o
Blackstone Real Estate Acquisitions IV L.L.C.
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xx. Xxxxxxxx X. Xxxx
|
|
With
a copy to:
|
Xx.
Xxxxxxx X. Xxxxx
Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
|
|
If
to Buyer, to:
|
Tanger
COROC, LLC
0000
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Attention:
Xx. Xxxxxxx X. Xxxxxx
|
|
With
a copy to:
|
Xx.
Xxxx X. Xxxxxx, III
Vernon,
Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A.
X.X.
Xxxxxx 0000
Xxxxxxxxxx,
XX 00000-0000
|
Any
party
may send any notice, request, demand, claim, or other communication hereunder
to
the intended recipient at the address set forth above using any other means
(including messenger service, telecopy, telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication
shall
be deemed to have been duly given unless and until it actually is received
by
the intended recipient. Any Party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Party notice in the manner herein set
forth.
10.9 Governing
Law 10.9 Governing
Law
. This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of Delaware without giving effect to any choice or conflict
of
law provision or rule (whether of the State of Delaware any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than
the
State of Delaware.
10.10 Amendments
and Waivers 10.10 Amendments
and Waivers
. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by Buyer and Seller. No waiver by any Party
of
any provision of this Agreement or any default, misrepresentation, or breach
of
warranty or covenant hereunder, whether intentional or not, shall be valid
unless the same shall be in writing and signed by the Party making such waiver
nor shall such waiver be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect
in any
way any rights arising by virtue of any prior or subsequent such
occurrence.
10.11 Severability 10.11 Severability
. A term
or provision of this Agreement that is invalid or unenforceable in any situation
in any jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or enforceability of
the
offending term or provision in any other situation or in any other
jurisdiction.
10.12 Expenses 10.12 Expenses
. Each
of Buyer and Seller will bear its own costs and expenses (including legal
fees
and expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.
10.13 Construction 10.13 Construction
. The
Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or disfavoring
any
Party by virtue of the authorship of any of the provisions of this Agreement.
Any reference to any federal, state, local, or foreign statute or law shall
be
deemed also to refer to all rules and regulations promulgated thereunder,
unless
the context requires otherwise. The word “including” shall mean including
without limitation. Nothing in the Disclosure Schedule shall be deemed adequate
to disclose an exception to a representation or warranty made herein unless
the
Disclosure Schedule identifies the exception with reasonable particularity
and
describes the relevant facts in reasonable detail. Without limiting the
generality of the foregoing, the mere listing (or inclusion of a copy) of
a
document or other item shall not be deemed adequate to disclose an exception
to
a representation or warranty made herein (unless the representation or warranty
has to do with the existence of the document or other item itself). The Parties
intend that each representation, warranty, and covenant contained herein
shall
have independent significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty or
covenant.
10.14 Incorporation
of Exhibits and Schedules 10.14 Incorporation
of Exhibits and Schedules
. The
Exhibits and Schedules identified in this Agreement are incorporated herein
by
reference and made a part hereof.
10.15 Specific
Performance 10.15 Specific
Performance
. Each
of the Parties acknowledges and agrees that the other Party would be damaged
irreparably in the event any of the provisions of this Agreement are not
performed in accordance with their specific terms or otherwise are breached.
Accordingly, each of the Parties agree that the other Party shall be entitled
to
an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the United States
or
any state thereof having jurisdiction over the Parties and the matter in
addition to any other remedy to which it may be entitled, at law or in
equity.
11. Mutual
Release.
Upon
the
Closing Date, (a) Seller shall, on behalf of itself and each of its
predecessors, successors, present and former affiliates, subsidiaries, parents,
assigns, officers, directors, stockholders, partners, managers, members,
employees and agents and each and all of their respective affiliates and
subsidiaries (collectively, the “Seller
Related Parties”)
release and forever discharge Buyer and its respective predecessors, successors,
present and former affiliates, subsidiaries, parents, assigns, officers,
directors, stockholders, partners, managers, members, employees and agents
and
each and all of their respective affiliates and subsidiaries (collectively,
the
“Buyer
Related Parties”)
from
any and all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, controversies, agreements, promises, damages, (whether
compensatory, punitive, statutory, interest, costs, attorneys’ fees or
otherwise), judgments, executions, claims, counterclaims, demands, and other
forms of liability howsoever denominated, whether at law or in equity, whether
based on contract, tort, statute or otherwise (collectively, the “Released
Claims”),
which
each and all of the Seller Related Parties now owns or holds, has at any
time
heretofore owned or held or may hereafter own or hold against any one or
more of
the Buyer Related Parties as a result of, arising out of or relating in any
way
to the Company Operating Agreement, the Management Agreement, the Company,
the
Subsidiaries or the Property and any other lease, license, agreement,
arrangement or understanding (whether written or otherwise) in any way related
to or arising out of the foregoing (collectively, the “Property-Related
Obligations”)
and
(b) Buyer shall, on behalf of itself and its predecessors, successors, present
and former affiliates, subsidiaries, parents, assigns, officers, directors,
stockholders, partners, managers, members, employees and agents and each
and all
of their respective affiliates and subsidiaries (collectively, the “Buyer
Related Parties”),
release and forever discharge each and all of the Seller Related Parties
from
the Released Claims which each and all of the Buyer Related Parties now owns
or
holds, has at any time heretofore owned or held or may hereafter own or hold
against any one or more of the Seller Related Parties as a result of, arising
out of or relating in any way to the Property-Related Obligations.
Notwithstanding the foregoing, the term “Released
Claims”
shall
not include any claims arising out of obligations under this Agreement. The
releases described this Section 11 shall be self-operative upon the Closing
and
shall not require the execution of any additional instrument. The provisions
of
this Section 11 shall survive the Closing.
IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of
the
date first above written.
SELLER:
BROC
PORTFOLIO L.L.C.,
a
Delaware limited liability
company
By: _____________________
Xxxx
Xxxxxxxx
Secretary
BUYER:
TANGER
COROC, LLC,
a North
Carolina limited
liability company
By: Tanger
Devco, LLC, its Manager
By: ____________________
Xxxxxxx
X. Xxxxxx
Chief
Executive Officer
EXHIBIT
6.1(h)
DIRECTORS
AND OFFICERS
OF
THE COMPANY AND ITS SUBSIDIARIES
THAT
SHALL RESIGN AT CLOSING
Officers:
Xxxx
X.
Xxxxxx
Co-President
of each Subsidiary
Xxxxxxxx
X. Xxxx
Vice
President of each Subsidiary
Xxxx
Xxxxxxxx
Secretary
of each Subsidiary
Directors:
Xxxx
X.
SumersDirector
of each GMAC Borrower
Xxxx
MiyasakiDirector
of each GMAC Borrower
EXHIBIT
6.3(a)1)
FORM
OF INTEREST ASSIGNMENT AND ASSUMPTION AGREEMENT
Assignment
and Assumption of Interests
ASSIGNMENT
AND ASSUMPTION OF MEMBERSHIP INTERESTS (this “Assignment”)
dated
as of ___________ __, 2005, by and among BROC Portfolio L.L.C., a Delaware
limited liability company having an address at c/o Blackstone Real Estate
Acquisitions IV L.L.C., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Assignor”),
and
Tanger COROC, LLC, a North Carolina limited liability company having an address
at c/o 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 (“Assignee”).
Background
This
Assignment and Assumption of Interests is being executed and delivered pursuant
to that certain Agreement dated as of August 22, 2005 (the “Purchase
Agreement”)
between Assignor
and
Assignee. All capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Purchase Agreement.
Assignment
and Assumption
In
consideration of Ten ($10.00) Dollars in hand paid by Assignee, the receipt
and
sufficiency of which is hereby acknowledged, Assignor does hereby assign,
transfer and set over unto Assignee, all of Assignor’s right, title and interest
in and to Assignor’s membership interests in COROC Holdings L.L.C. (the
“Company”)
(collectively, the “Interests”).
Assignee
hereby accepts the foregoing assignment and assumes all of Assignor’s duties and
obligations with respect to the Interests arising from and after the date
of
this Assignment (whether such duties and obligations arise under the relevant
organizational documents of the Company or applicable law), all pursuant
to the
terms and conditions of the Purchase Agreement.
This
Assignment is made without warranty or representation, express or implied,
by or
recourse against Assignor of any kind or nature whatsoever except as set
forth
in the Purchase Agreement.
This
Assignment may be executed in one or more counterparts, each of which when
so
executed and delivered shall be deemed an original, but all of which taken
together shall constitute but one and the same instrument.
IN
WITNESS WHEREOF, Assignor and Assignee have duly executed this instrument
as of
the day first above written.
ASSIGNOR:
BROC
Portfolio l.l.c., a
Delaware limited liability company
By: __________________________________
Name:
Title:
ASSIGNEE:
TANGER
COROC, LLC, a North Carolina limited liability company
By: Tanger
Devco, LLC, its Manager
By: __________________________
Name:
Title:
EXHIBIT
9
LIST
OF SUBSIDIARIES
GMAC
Borrowers
1.COROC/Riviera
L.L.C.
2.COROC/Tuscola
L.L.C.
3.COROC/Hilton
Head I L.L.C.
4.COROC/Hilton
Head II L.L.C.
5.COROC/Xxxxxxxxx
I L.L.C.
6.COROC/Lake
Regions L.L.C.
7.COROC/Myrtle
Beach L.L.C.
8.COROC/Rehoboth
I L.L.C.
9.COROC/Rehoboth
II L.L.C.
10.COROC/Rehoboth
III L.L.C.
11.COROC/Lincoln
City L.L.C.
12.COROC/Park
City L.L.C.
Owners
of Surplus Land
1.COROC/Clinton
CHR L.L.C.
2.COROC/Xxxxxxx
XX L.L.C.
3.BRE/ROC
Holding L.L.C.
4.COROC/Xxxxxxxxx
II L.L.C.
SELLER’S
DISCLOSURE SCHEDULE
None
BUYER’S
DISCLOSURE SCHEDULE
None
