AGREEMENT OF ASSIGNMENT OF MEMBERSHIP AND PARTNERSHIP INTERESTS
THIS
AGREEMENT made this
day
of
March, 2008, by and between XXXXXXXX X. XXXXXXXX, an individual (“Assignor”) and
AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership (“Assignee”).
WITNESSETH:
A. ARC
HVPA
General Partner IV LLC (“HVPA IV”) is a Delaware limited liability company.
Assignor is the sole existing member of HVPA IV, owning a 100% membership
interest (the "Membership Interest").
B. ARC
HVPA
Limited Partner II LP (“HVPA II”) is a Delaware limited partnership. Assignor is
the sole limited partner of HVPA II owning a 100% interest in all of the limited
partnership interests in HVPA II (the “Partnership Interest,” the Partnership
Interest and the Membership Interest are referred to hereinafter collectively
as
the “Interests”). HVPA IV is the sole general partner of HVPA II. Assignor owns,
directly or indirectly 100% of the limited partnership interests in HVPA
II.
C. HVPA
II
owns, directly or indirectly, one hundred percent (100%) of the ownership equity
interests in the following entities (collectively, the “Property Owning
Subsidiaries”):
1)
ARC
HVHVPA0001 LP, a Delaware limited partnership;
2)
ARC
HVLNDPA001 LP, a Delaware limited partnership;
3)
ARC
HVLNDPA002 LP, a Delaware limited partnership;
4)
ARC
HVLSDPA001 LP, a Delaware limited partnership;
5)
ARC
HVLHNPA001 LP, a Delaware limited partnership;
6)
ARC
HVLRKPA001 LP, a Delaware limited partnership;
7)
ARC
HVPMTPA001 LP, a Delaware limited partnership;
8)
ARC
HVSVPA0001 LP, a Delaware limited partnership;
9)
ARC
HVSPKPA001 LP, a Delaware limited partnership;
10)
ARC
HVSTNPA001 LP, a Delaware limited partnership;
11)
ARC
HVSTNPA002 LP, a Delaware limited partnership;
12)
ARC
HVSGHPA001 LP, a Delaware limited partnership;
13)
ARC
HVSHPA0001 LP, a Delaware limited partnership;
14)
ARC
HVWPTPA001 LP, a Delaware limited partnership; and
15)
ARC
HVWYMPA001 LP, a Delaware limited partnership.
D. Assignor
desires to assign to Assignee the Interests and Assignee desires to assume
the
Interests from Assignor, upon the terms and conditions set forth
herein.
AGREEMENT:
NOW
THEREFORE, in consideration of the mutual covenants and promises herein
contained, the parties hereto, intending to be legally bound hereby, agree
as
follows:
1.
Assignment
and Assumption of Interests.
1.1 Upon
the
terms and conditions set forth in this Agreement, on the Closing Date (as
hereinafter defined), Assignor shall transfer and assign the Interests to
Assignee and Assignee shall assume the same.
1.2
At
Closing (as hereinafter defined), Assignor and Assignee shall execute and
deliver to each other an instrument of transfer and assumption in the form
of an
Assignment and Assumption Agreement in form and content reasonably acceptable
to
Assignor and Assignee.
2.
Assumption
Price for the Interest.
The
assumption price for the Interests being sold hereunder is agreed to be the
sum
of Forty-Million Nine Hundred Seventy-Six Two Hundred Eighteen and 00/100
Dollars ($40,976,218.00) which sum Assignee agrees to pay to Assignor by wire
of
immediately available funds to Assignor’s account at Closing (i) subject
to
the
prorations and adjustments, if any, provided under this Agreement, (ii)
plus
any
other amounts required to be paid by Assignee to Assignors at Closing, (iii)
less
the
outstanding principal balance of the Existing Loan (as defined hereinafter)
and
(iv) less
any
other amounts to be paid by Assignors to Assignee at Closing.
The
Property Owning Subsidiaries are the borrowers under that certain Loan Agreement
(the “Loan Agreement”) dated as of December 28, 2007 between the Property Owning
Subsidiaries and Continental Bank (“Lender”) pursuant to which Lender made a
mortgage loan to the Property Owning Subsidiaries in the original principal
amount of $31,000,000 (the “Existing Loan”). Pursuant to the Loan Agreement
Lender’s consent is required in order to effectuate the transactions
contemplated under this Agreement (“Lender’s Consent”). It shall be a condition
to Closing that Lender’s Consent is obtained.
3.
Closing.
Subject
to compliance with the provisions of this Agreement, the transaction herein
contemplated shall be consummated at a Closing (the "Closing") which shall
take
place on or before March 31, 2008 on a date and at a time mutually agreed upon
by the parties hereto (the "Closing Date") by mail, commencing at 10:00 a.m.
or
at such other hour and/or place as shall be agreeable to the parties, time
being
of the essence of this Agreement.
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It
shall
be a further condition to Assignee’s obligation to close pursuant to this
Agreement that Assignee’s Board of Directors shall have approved the
transactions contemplated by this Agreement.
If
Closing does not occur by March 31, 2008, either Assignor or Assignee shall
have
the right to terminate this Agreement whereupon the parties shall have no
further obligations hereunder.
4.
Representations
and Warranties of Assignors.
Assignors, to induce Assignee to enter into this Agreement, hereby make the
following representations and warranties to Assignee, all of which shall be
true
and correct as of the time of the execution hereof and as of the time of Closing
as if the same had been made at the time of Closing:
4.1
Assignor
has the full legal right, power and authority to enter into this Agreement
and
to perform its obligations hereunder.
4.2 That
signing as Assignor below is the owner of the entire Interests and no other
person or entity has any interest therein. Assignor has taken all necessary
action to authorize the execution, delivery and performance of this Agreement
by
Assignor, and, except for obtaining Lender’s Consent (as defined hereinafter) no
other consent or approval is required (including, without limitation, consent
or
approval under a bond, note, contract, indenture, mortgage, deed of trust,
loan
agreement, lease or other agreement or instrument to which Assignor or their
properties are bound, or to the best of Assignors' knowledge, any provision
of
statute or any order, rule or regulation of any court or governmental agency
having jurisdiction over the Assignors) in order for Assignor to effectuate
the
transaction described herein.
4.3
Except
for the rights of HG ARC Harleysville Finance, LP as Special Limited Partner,
as
provided for in the Limited Partnership Agreement of HVPA II, Assignor owns
the
Interests free and clear of any liens, security interest, charges, claims,
interests or other encumbrances. Upon the completion of Closing and delivery
to
Assignee of the Assignment and Assumption Agreement described above, Assignee
will own the Interests free and clear of any liens, security interests, charges,
claims, interests or other encumbrances created or permitted by
Assignor.
4.4 HVPA
IV
is a limited liability company duly organized, validly existing and created
under the laws of the State of Delaware.
4.5 HVPA
II
is a limited partnership duly organized, validly existing and created under
the
laws of the State of Delaware.
4.6 Each
of
the Property Owning Subsidiaries is a limited partnership duly organized,
validly existing and created under the laws of the State of
Delaware.
5. Representations
and Warranties of Assignee.
Assignee, to induce Assignor to enter into this Agreement, hereby makes the
following representations and warranties to Assignor, all of which shall be
true
and correct as of the time of the execution hereof and as of the time of Closing
as if the same had been made at the time of Closing:
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5.1
Assignee
has the full legal right, power and authority to enter into this Agreement
and
to perform its obligations hereunder.
5.2 Those
signing for Assignee below are authorized to do so. Assignee has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement by Assignee, and, , except for obtaining Lender’s Consent, no other
consent or approval is required (including, without limitation, consent or
approval under a bond, note, contract, indenture, mortgage, deed of trust,
loan
agreement, lease or other agreement or instrument to which Assignee or its
properties are bound, or to the best of Assignee's knowledge, any provision
of
statute or any order, rule or regulation of any court or governmental agency
having jurisdiction over the Assignee) in order for Assignee to effectuate
the
transaction described herein.
6. Prorations;
Transfer Taxes.
All
collected rents and other payments from tenants under leases affecting the
real
property owned by the Property Owning Subsidiaries shall be prorated between
Assignor and Assignee as of 11:59 p.m. on the day prior to the Closing. Interest
due with respect to the Existing Loan for the month in which Closing occurs
shall be prorated between the parties with Assignor responsible for the Existing
Loan interest to the date preceding the Closing and Assignee responsible for
the
Existing Loan interest on and after the date of Closing.
In
the
event any realty transfer taxes are at any time imposed on or in connection
with
this transaction, they shall be borne equally by Assignor and
Assignee.
7. Documents
at Closing.
At the
Closing, the following documents shall be executed, acknowledged (where
appropriate) and delivered by the designated parties:
7.1
An
Assignment and Assumption Agreement.
7.2 A
Foreign
Investment in Real Property Tax Act Affidavit of Assignors to the effect that
no
withholding of any portion of the assumption price is required.
8.
Governing
Laws; Successors.
This
Agreement shall be governed by Pennsylvania law and shall bind and inure to
the
benefit of the parties hereto, their respective heirs, successors and
assigns.
9.
Headings.
The
headings preceding the text of the paragraphs hereof are inserted solely for
convenience of reference and shall not constitute a part of this Agreement,
nor
shall they affect its meaning, construction or effect.
10.
Execution
and Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together constitute one and the same
instrument.
11.
Entire
Agreement; Amendments.
This
Agreement sets forth all of the promises, covenants, agreements and undertakings
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements or understandings,
inducements or conditions, expressed or implied. Assignors have not made and
do
not make any representations as to Milestone or the Property Owning Subsidiaries
or their respective assets except as herein specifically set forth, neither
party relying upon any statement or representation made by the other not
embodied in this Agreement.
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12.
Brokers.
Assignor and Assignee represent and warrant to each other that they have dealt
with no broker or other person or entity entitled to a commission or finder's
fee in connection with the transactions contemplated by this Agreement. Each
party shall indemnify and hold the other harmless from and against any and
all
claims and/or liability for brokers' commissions or finders' fees arising out
of
this Agreement by reason of breach of the above warranty.
13. Notices.
All
notices, demands, requests or other communications required or permitted under
the terms of this Agreement shall be in writing and, unless and until otherwise
specified in a written notice by any party, shall be sent to the parties at
the
following respective addresses:
If
intended for Assignee:
c/o
American Realty Capital
000
Xxxx
Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
with
a
copy to:
Xxxxxx
X.
Xxxxx, Esquire
Wolf,
Block, Xxxxxx & Xxxxx-Xxxxx LLP
0000
Xxxx
Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
e-mail:
xxxxxx@xxxxxxxxx.xxx
If
intended for Assignor:
c/o
American Realty Capital
000
Xxxx
Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
with
a
copy to:
Xxxxxx
X.
Xxxxx, Esquire
Wolf,
Block, Xxxxxx & Xxxxx-Xxxxx LLP
0000
Xxxx
Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
e-mail:
xxxxxx@xxxxxxxxx.xxx
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Notices
may be given on behalf of any party by its legal counsel. Each such notice,
demand, request or other communication shall be deemed to have been properly
served for all purposes if (i) hand delivered against a written receipt of
delivery, or (ii) mailed by registered or certified mail of the United States
Postal Service, return receipt requested, postage prepaid, or (iii) delivered
to
a nationally recognized overnight courier service for next business day
delivery, to its addressee at the address set forth above in this
paragraph.
14. Miscellaneous.
14.1
All
of
the representations and warranties of the parties contained in this Agreement
shall survive Closing.
14.2
The
execution of this Agreement shall in no way affect the existing Operating
Agreement and, if for any reason, Closing under this Agreement is not
consummated, the existing Operating Agreement shall remain in full force and
effect and unmodified hereby.
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of page intentionally left blank]
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IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first above written.
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AMERICAN
REALTY CAPITAL OPERATING
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PARTNERSHIP,
L.P., a Delaware limited
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partnership
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By:
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general
partner
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By:
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Name:
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Its:
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ASSIGNOR:
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XXXXXXXX
X. XXXXXXXX
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