EXHIBIT 10.12
XXXXX OWNERSHIP INTEREST ASSIGNMENT AGREEMENT
THIS XXXXX OWNERSHIP INTERESTS ASSIGNMENT AGREEMENT (the "AGREEMENT") is made
and entered into as of August 13, 2004, by and among Xxxxxx and Xxxxxxx "Bunny"
Xxxxx, as Tenants by the Entireties (collectively, "DUBINS") and Xxxxxxx
Equities of Arizona, L.L.C., an Arizona limited liability company ("FEA"; and
together with its designees, "ASSIGNEE").
RECITALS
WHEREAS, Dubins are the owners of a limited partnership interest
("XXXXX OWNERSHIP INTEREST") in Xxxxxxx Harrisburg Limited Partnership LP, a
Pennsylvania limited partnership (the "Partnership"), pursuant to that certain
Agreement for Assignment and Assumption of Limited Partnership Interest, entered
into on or about January 13, 2004, (as amended, the "ORIGINAL ASSIGNMENT");
WHEREAS, FEA, Dubins and Xxxxxxx Harrisburg General Partner Inc., a
Pennsylvania corporation ("Xxxxxxxxxx XX") are the only partners of the
Partnership and, upon consummation of the transaction contemplated by this
Agreement, the Partnership will be wholly-owned by Assignee and Harrisburg GP;
WHEREAS, the Partnership is a limited partner in Xxxxxxx Xxxxxx Xxxxx
Harrisburg LP ("Mall Owner");
WHEREAS, Mall Owner owns the parcel of real property known as
Harrisburg Mall located in Harrisburg, Pennsylvania as more fully described on
EXHIBIT A attached to this Agreement and incorporated herein by this reference
(the "REAL PROPERTY");
WHEREAS, Xxxxxxx Equities Operating Partnership LP, a Delaware limited
partnership (the "OPERATING PARTNERSHIP"), a member of FEA, Xxxxxxx Mall
Properties, Inc., a Maryland corporation (the "REIT") and/or their respective
affiliates (collectively, the "FORMATION PARTIES"), are in the process of
conducting a reorganization (such reorganization and all transactions related
thereto, including the contribution by the Formation Parties to Assignee of
certain of the proceeds of the IPO, the "FORMATION TRANSACTIONS");
WHEREAS, contemporaneously with or on or about the completion of the
Formation Transactions, the REIT will conduct an underwritten initial public
offering of its shares of common stock pursuant to an effective registration
statement filed with the Securities and Exchange Commission (such underwritten
initial public offering, the "IPO"); and
WHEREAS, subject to the completion of the Formation Transactions and
the IPO, Assignee desires to acquire the Xxxxx Ownership Interest, and Dubins
desire to assign, convey and transfer to Assignee the Xxxxx Ownership Interest,
free and clear of all liens, security interests, prior assignments or
conveyances, conditions, special assessments, and encumbrances whatsoever and
all other defects or imperfections in title (collectively, "ENCUMBRANCES"), in
accordance with the terms and subject to the conditions, and for the
consideration, specified in this 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 to this
Agreement agree as follows:
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1. CONTRIBUTION OF XXXXX OWNERSHIP INTERESTS; EFFECTIVE DATE. Dubins
agree to transfer, convey and assign to Assignee, and Assignee agrees to accept
the contribution, transfer, conveyance and assignment of, the Xxxxx Ownership
Interests, pursuant to the terms and conditions set forth in this Agreement. On
the Closing Date (as hereinafter defined), Dubins shall contribute, transfer,
convey and assign to Assignee the Xxxxx Ownership Interests, free and clear of
all Encumbrances. Dubins acknowledge that, following the Closing (hereinafter
defined), Dubins will have no further right, title or interest of any nature
(including as a member, shareholder, officer, director, manager or otherwise) in
or to any of Mall Owner, Harrisburg GP, the Partnership, or FEA (collectively,
the "OWNERSHIP ENTITIES"), any assets of any of the Ownership Entities
(including without limitation any reserve funds held by any lender for any of
the Ownership Entities), or the Real Property.
2. CONSIDERATION. The aggregate consideration for which Dubins agree to
transfer, convey and assign the Xxxxx Ownership Interests to Assignee is the
total sum of Five Hundred Thousand Dollars ($500,000) (the "AGGREGATE
CONSIDERATION VALUE"). On the Closing Date, the Aggregate Consideration Value
shall be paid by Assignee by delivering an amount, in cash, by wire transfer of
immediately available funds to an account to be designated in writing by Xxxxx
at least five (5) days prior to the Closing Date, equal to the Aggregate
Consideration Value. Notwithstanding the foregoing, FEA and Xxxxx acknowledge
that additional capital contributions and/or member loans may be required under
the partnership agreement of the Partnership prior to the Closing; in such
event, that Dubins make an additional capital contribution or member loan, then
the Aggregate Consideration Value payable under this Agreement shall be
increased by the principal amount (without any preferred return or interest) of
the additional capital contribution(s) or member loan(s) made by Dubins to the
Partnership.
3. TERM OF AGREEMENT. If the Closing does not occur by January 31,
2005, (the "TERMINATION DATE"), this Agreement shall be deemed terminated and
shall be of no further force and effect and neither FEA nor Dubins shall have
any further obligations pursuant to this Agreement except as specifically set
forth in this Agreement. Notwithstanding the foregoing, if the Formation Parties
are then actively pursuing the IPO, FEA may, at its sole option, extend the
Termination Date to April 30, 2005. (For purposes of this Agreement, "actively
pursuing" shall mean the receipt by the Formation Parties of an acceptance of a
contract by a nationally recognized underwriter to conduct an IPO.
4. ACCEPTANCE CERTIFICATE. From the date hereof until Closing, Assignee
shall have the right to determine in its good faith whether the Real Property is
suitable and satisfactory for Assignee's intended use of the Real Property.
Assignee shall notify Dubins in writing, no later than three (3) business days
before the Closing, that Assignee intends to proceed with the acquisition of the
Xxxxx Ownership Interests (such writing referred to herein as the "ACCEPTANCE
CERTIFICATE").
5. SURVEY AND TITLE MATTERS.
A. Title Insurance. Promptly after the date hereof, Assignee may
order, at its option, at its sole cost and expense, current title insurance
commitment for a policy (ALTA) of owner's title insurance and a copy of all
exceptions referred to therein (the "TITLE COMMITMENT") from a title insurance
company selected by Assignee ("TITLE COMPANY"). The Title Commitment shall
irrevocably obligate the Title Company to issue an ALTA Title Insurance Policy
in the full amount of the Aggregate Consideration Value or such other amount as
determined by Assignee (the "TITLE POLICY"), which Title Policy shall insure
Mall Owner's fee simple title to the Real Property. Assignee will also order, at
its sole cost and expense, customary UCC, judgment and bankruptcy searches on
Dubins, the Mall Owner, the Partnership, and the Real Property (collectively,
the "SEARCHES").
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B. Survey. Assignee may order, at its option, at its sole cost
and expense, an ALTA survey of the Real Property ("SURVEY"). The legal
description of the Real Property set forth in the Survey shall be substituted
for the description of the Real Property set forth herein and such substituted
legal description shall be used in other documents, if applicable, to be
delivered by Dubins to Assignee or the Title Company at Closing.
C. Title and Survey Objection. Prior to Closing, Assignee shall
provide Dubins with notice of any matters set forth in the Title Commitment,
Survey or the Searches which are unacceptable to Assignee. Any matters set forth
in the Title Commitment, Survey or the Searches to which Assignee does not
object, or which have been waived or cured shall be referred to collectively
herein as the "PERMITTED EXCEPTIONS." Dubins may elect to have such unacceptable
exceptions removed from the Title Commitment or to have such unacceptable
exceptions cured to the reasonable satisfaction of Assignee and the Title
Company or surveyor, if applicable. In the event Dubins, at their sole and
absolute discretion, fail or determine not to cure any such unacceptable
exceptions before Closing, Assignee shall either (i) waive Assignee's objection
to said unacceptable exceptions and consider said unacceptable exceptions
Permitted Exceptions or (ii) terminate this Agreement. Notwithstanding anything
to the contrary contained in this Section or any other provision in this
Agreement, Dubins shall be obligated to cure, satisfy or obtain affirmative
title insurance (which affirmative title insurance shall be reasonably
acceptable to Assignee) with regard to any and all Monetary Objections (as
hereinafter defined) and any other encumbrance, exception or matter concerning
the Xxxxx Ownership Interest arising by, through or under the voluntary action
or voluntary inaction of Dubins, and if not so addressed by Dubins, Assignee may
use the proceeds of the Aggregate Consideration Value at Closing for such
purpose. For purposes of this Agreement, the term "MONETARY OBJECTION" shall
mean any mortgage, deed to secure debt, deed of trust, assignment of leases and
rents, negative pledge, financing statement or similar security instrument
encumbering all or any part of the Xxxxx Ownership Interests, and any final
unappealable judgment of record against Dubins in the county or other applicable
jurisdiction in which the Real Property is located.
6. CLOSING DATE AND CLOSING PROCEDURES AND REQUIREMENTS.
A. Closing Date. The "CLOSING DATE" or "CLOSING" of this
Agreement and the completion of the acquisition of the Xxxxx Ownership Interests
by Assignee shall be on or before sixty (60) days after the closing of the IPO
or such earlier date as Assignee may specify by notice to Dubins not less than
three business days in advance of the Closing. Closing shall take place at the
offices of the Title Company or at such other place as the parties hereto may
agree upon and shall be coordinated and conducted with the Title Company.
Notwithstanding anything else to the contrary, Closing shall take place on or
before the Termination Date, as defined in Section 3 of this Agreement,
including any extensions thereof. However, Closing shall not occur unless each
and every condition to (i) Assignee's obligations, more specifically set out and
otherwise enumerated in Section 11 of this Agreement and (ii) Dubins'
obligations, more specifically set out and otherwise enumerated in Section 12 of
this Agreement, has been satisfied or waived.
B. Conveyance of Title and Delivery of Closing Documents. On the
Closing Date, (A) Dubins shall have delivered (i) all documents and items
required by this Agreement or reasonably requested by a party to facilitate the
consummation of the transaction contemplated hereunder, and (ii) a non-foreign
status affidavit pursuant to Section 1445 of the Code, in a form reasonably
acceptable to Assignee, duly executed by Dubins, and (B) the parties hereto
shall have submitted to the Title Company any other documents reasonably
required by the Title Company for Closing. Dubins must provide such undertakings
as the Title Company may require to issue the Title Policy to Assignee.
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C. Payment of Aggregate Consideration Value at Closing and
Interest Assignment. On the Closing Date, Assignee shall transfer the Aggregate
Consideration Value to Dubins. Simultaneously with the delivery of the Aggregate
Consideration Value, Dubins will transfer, convey, assign and deliver to
Assignee good and valid title in and to the Xxxxx Ownership Interests, free and
clear of all Encumbrances, by executing and delivering to Assignee a limited
partnership interest transfer agreement substantially in the form of EXHIBIT B
attached to this Agreement.
D. Closing Costs. Dubins shall, at Closing, pay any sales or use,
transfer or similar tax payable by virtue of the transfer and contribution or
deemed transfer or contribution of personal property, any real estate transfer
and transaction taxes and levies relating to the transfer and contribution of
the Xxxxx Ownership Interests including, without limitation, the revenue or
documentary stamps, transfer tax or similar tax, title insurance premiums for
standard coverage (including any fees for title examination), and one-half of
any escrow fees in the maximum amount of $5,000. FEA agrees to pay for the cost
of all inspections, including environmental site assessments and the Survey, the
cost of any extended title coverage or special endorsements, and one-half of any
escrow fees. Each party shall pay its own attorneys' fees and costs. All other
costs incurred at Closing shall be borne by the parties in accordance with the
custom in the county where the Real Property is located, as determined by the
Title Company, unless otherwise specified in this Agreement.
E. Risk of Loss. If all or any portion of the Real Property is
taken, or becomes subject to a pending taking, by eminent domain, or is conveyed
in lieu thereof, or if Mall Owner or Dubins receive notice of any rezoning of
the Real Property, Assignee shall have the right and option to terminate this
Agreement by providing Dubins with written notice at any time after its receipt
of written notification from Dubins of any such occurrence. If Assignee elects
not to terminate this Agreement, then, as of the Closing, Dubins shall deliver
to Assignee the amount of any award or other proceeds on account of such taking
or conveyance which have been actually paid to Dubins prior to the Closing Date
as a result of such taking or conveyance (less all costs and expenses,
including, without limitation, attorneys' fees and costs, incurred by Dubins as
of the Closing Date in obtaining payment of such award or proceeds or in
repairing or restoring the Real Property) and, to the extent such award or
proceeds have not been delivered to Dubins, Dubins shall assign to Assignee at
Closing (without recourse to Dubins) the rights of Dubins to, and Assignee shall
be entitled to receive and retain, all awards for the taking of the Real
Property or any portion thereof or conveyance in lieu thereof (less the costs
and expenses described above in this Section to the extent not previously paid
to Dubins out of the award or proceeds for the applicable taking or conveyance
in lieu thereof).
7. REPRESENTATIONS AND WARRANTIES OF DUBINS. Dubins hereby make the
following representations and warranties, each of which is material and being
relied upon by Assignee, each and every one of which is true, correct, and
complete as of the date of this Agreement (unless they expressly provide for a
future date), and will be true, correct, and complete as of the Closing Date:
A. Authority. Dubins have the right, power and authority to enter
into and deliver this Agreement and to perform all of its obligations under this
Agreement and to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement and the performance by Dubins of their
respective obligations hereunder require no further action or approval of any
other individuals or entities in order to constitute this Agreement as a binding
and enforceable obligation of Dubins in accordance with its terms subject, as to
enforcement, to the bankruptcy, reorganization, insolvency and other similar
laws of general applicability relating to or affecting creditors' rights and to
general principles of equity.
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B. Ownership.
(i) Dubins own the Xxxxx Ownership Interests as stated in the
Recitals, beneficially and of record, free and clear of any and all
Encumbrances. Except for this Agreement, Dubins have not granted any options,
warrants, or rights to subscribe to, securities, member interests, rights or
obligations convertible into or exchangeable for or given any right to subscribe
for or participate in the profits of all or any portion of its portion of the
Xxxxx Ownership Interests. AFI has not previously assigned, transferred,
conveyed, encumbered, or liened any portion of the Membership Interest. At
Closing, upon consummation of the transactions contemplated hereby, Assignee
will acquire the entire legal and beneficial interest in the Xxxxx Ownership
Interests, free and clear of any and all Encumbrances;
(ii) Dubins are the only owners of the Xxxxx Ownership
Interests;
(iii) Dubins have not granted any other person or entity an
option to purchase or a right of first refusal upon the Xxxxx Ownership
Interests, or any portion thereof or any direct or indirect interest therein nor
are there any agreements or understandings between Dubins and any other person
or entity with respect to the disposition of the Xxxxx Ownership Interests or
any portion thereof;
(iv) Dubins have not received any notice, and have no actual
knowledge, that Mall Owner or the Real Property or any portion or portions
thereof is or will be subject to or affected by any special assessments, whether
or not presently a lien thereon;
(v) Dubins have no actual knowledge of any latent defects or
adverse facts that exist with respect to the physical condition of the Real
Property which have not been specifically disclosed in writing to FEA,
including, without limitation, adverse soil conditions;
(vi) Dubins have not assigned, transferred, conveyed,
mortgaged, deeded in trust, or encumbered any interest in the Real Property, or
in the Xxxxx Ownership Interests; and
(vii) Dubins have no actual knowledge or notice that any
present default or breach exists under any mortgage or other encumbrance
encumbering the Real Property or any covenants, conditions, restrictions,
rights-of-way or easements which may affect the Real Property or any portion or
portions thereof. Dubins have not received any notices from governmental or
regulatory, authorities pertaining to violation of law or governmental
regulations with respect to the Real Property.
C. Noncontravention. Neither the entry into nor the performance
of, or compliance with, this Agreement by Dubins has resulted, or will result,
in any violation of, or default under, or result in the acceleration of, any
obligation under any limited liability company agreement, partnership agreement,
regulations, mortgage indenture, lien agreement, note, contract, permit,
judgment, decree, order, restrictive covenant, statute, rule, or regulation
applicable to (i) Dubins or the Xxxxx Ownership Interests or (ii) to Dubins'
actual knowledge, any of the Ownership Entities or the Real Property.
D. Litigation. To Dubins' actual knowledge, there is no action,
suit, or proceeding, pending or threatened, against or affecting any of the
Ownership Entities, Dubins, the Xxxxx Ownership Interests or the Real Property
in any court or before any arbitrator or before any federal, state, municipal,
or other governmental department, commission, board, bureau, agency or
instrumentality which (i) in any manner raises any question affecting the
validity or enforceability of this Agreement; (ii) could materially and
adversely affect the business, financial position, or results of operations of
Mall Owner or Dubins; (iii) could materially and adversely affect the ability of
Dubins to perform their obligations hereunder, or under any document to be
delivered pursuant hereto; (iv) could create a lien on the Xxxxx Ownership
Interests or the Real Property, any part thereof, or any interest therein; or
(v) could materially and adversely affect any of the Ownership Entities or the
Xxxxx Ownership Interests or the Real Property, any part thereof, or any
interest therein.
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E. No Consents. Except as may otherwise be set forth in this
Agreement, each consent, approval, authorization, order, license, certificate,
permit, registration, designation, or filing by or with any governmental agency
or body necessary for the execution, delivery, and performance of this Agreement
or the transactions contemplated hereby by Dubins has been obtained or will be
obtained on or before the Closing Date.
F. Reliance. In engaging in this transaction, Dubins are not
relying upon any representations made to it by Assignee, or any of its partners,
officers, employees, affiliates or agents that are not contained in this
Agreement.
G. Tax Matters. Dubins represent and warrant that they have
obtained from their own counsel advice regarding the tax consequences of (i) the
transfer of the Xxxxx Ownership Interests to Assignee and the receipt of
proceeds therefor and (ii) any other transaction contemplated by this Agreement.
Dubins further represent and warrant that they have not relied on Assignee or
Assignee's representatives or counsel for such tax advice.
H. Bankruptcy with Respect to Ownership Entities or Dubins. No
Act of Bankruptcy has occurred with respect to any of the Ownership Entities or
Dubins. As used herein, "ACT OF BANKRUPTCY" shall mean if any of the Ownership
Entities or Dubins shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its property, (ii) admit in writing its
inability to pay its debts as they become due, (iii) make a general assignment
for the benefit of its creditors, (iv) file a voluntary petition or commence a
voluntary case or proceeding under the Federal Bankruptcy Code (as now or
hereafter in effect), (v) be adjudicated bankrupt or insolvent, (vi) file a
petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, receivership, dissolution, winding-up or composition
or adjustment of debts, (vii) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case or proceeding under the Federal Bankruptcy Code (as now or
hereafter in effect), or (viii) take any entity action for the purpose of
effecting any of the foregoing.
I. Brokerage Commission. Dubins have not engaged the services of,
any real estate agent, broker, finder or any other person or entity for any
brokerage or finder's fee, commission or other amount with respect to the
transactions described herein on account of any action by Dubins. Dubins hereby
agree to indemnify and hold Assignee and its employees, directors, partners,
affiliates and agents harmless against any claims, liabilities, damages or
expenses arising out of a breach of the foregoing. This indemnification shall
survive Closing or any termination of this Agreement.
J. Further Representations and Warranties. Each of the following
statements is true, correct and complete as of the date of this Agreement
(unless they expressly provide for a future date), and will be true, correct and
complete as of the Closing Date:
(i) Ownership Entities' Operations. To Dubins' actual
knowledge, the Ownership Entities were formed for the purpose of owning and
holding the Real Property. To Dubins' actual knowledge, since the date of their
formation, the Ownership Entities have not owned or held any material assets
other than the Real Property, except those assets that are included in the Real
Property and those immaterial assets that were used or disposed of in the
ordinary course of business of the Ownership Entities in operating and
maintaining the Real Property. To Dubins' actual knowledge, since the date of
formation, none of the Ownership Entities have operated or conducted any other
trade or business other than the ownership and management of the Real Property.
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(ii) Liabilities; Indebtedness. Dubins have not incurred any
indebtedness related to the Real Property or the Xxxxx Ownership Interests, or
any portion thereof. Dubins have not entered into any agreements, contracts or
other obligations of any nature on behalf of any of the Ownership Entities (all
authority for such actions being vested in other owners).
(iii) INTENTIONALLY DELETED. .
(iv) No Continuing Obligations. Dubins are not and to Dubins'
actual knowledge none of the Ownership Entities is a party to any contract with
any governmental or regulatory authority or any person pursuant to which any of
the Ownership Entities or Dubins have any indemnity or other continuing
obligation with respect to (i) the remediation or investigation of any condition
resulting from the treatment, storage, or release of Hazardous Substances; or
(ii) any actual or potential non-compliance with Environmental Laws.
(v) Compliance With Laws. Dubins have not received and to
Dubins' actual knowledge none of the Ownership Entities has received any written
notice or proceedings relating to the revocation or modification of any
certificates, authorities or permits issued by any state or federal agencies or
bodies necessary to conduct the business to be conducted by any of the Ownership
Entities which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling, or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Real Property any of the Ownership Entities. Dubins have not
received and to Dubins' actual knowledge none of the Ownership Entities has
received any written or other notice of any violation of any applicable zoning,
building or safety code, rule, regulation or ordinance, or of any employment,
environmental, wetlands or other regulatory law, order, regulation or other
requirement, including without limitation the Americans With Disabilities Act or
any restrictive covenants or other easements, encumbrances or agreements,
relating to the Real Property, which remains uncured and would materially and
adversely affect the condition, financial or otherwise, or the earnings,
business affairs or business prospects of any of the Ownership Entities or the
Real Property.
(vi) Condemnation and Moratoria. To Dubins' actual knowledge,
there are (i) no pending or threatened condemnation or eminent domain
proceedings, or negotiations for purchase in lieu of condemnation, which affect
or would affect any portion of the Real Property; (ii) no pending or threatened
moratoria on utility or public water or sewer hook-ups or the issuance of
permits, licenses or other inspections or approvals necessary in connection with
the construction or reconstruction of improvements which affect or would affect
any portion of the Real Property; and (iii) no pending or threatened proceeding
to change adversely the existing zoning classification as to any portion of the
Real Property. To Dubins' actual knowledge, no portion of the Real Property is a
designated historic property or located within a designated historic area or
district, and there are no graveyards or burial grounds located within any of
the Real Property.
K. Representations True and Correct. In the event that changes
occur as to any material information, documents or exhibits referred to in this
Agreement, of which Dubins have actual knowledge, Dubins will immediately
disclose the same to Assignee when first available to Dubins; and, in the event
of any such material change, Assignee may, at its election, terminate this
Agreement.
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L. Actual Knowledge. For purposes of this Agreement, "actual
knowledge" shall mean matters of fact which have come to the attention of Dubins
through documents or records in Dubins' files without any further independent
investigation.
8. REPRESENTATIONS AND WARRANTIES OF FEA. FEA hereby makes the
following representations and warranties, each of which is material and being
relied upon by Dubins, are true, correct, and complete as of the date of this
Agreement (unless they expressly provide for a future date) and will be true,
correct, and complete as of the Closing Date:
A. Organization and Authority. FEA is a limited liability company
duly organized, validly existing, and in good standing under the laws of the
State of Arizona, and has full limited liability company right, power, and
authority to execute and deliver this Agreement and to perform all of its
obligations under this Agreement and to consummate the transactions contemplated
by this Agreement. The execution and delivery of this Agreement and the
performance by FEA of its obligations hereunder have been duly authorized by all
requisite action of FEA and require no further action or approval of FEA's
members, directors, officers, managers or of any other individuals or entities
in order to constitute this Agreement as a binding and enforceable obligation of
FEA in accordance with its terms subject, as to enforcement, to the bankruptcy,
reorganization, insolvency and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
B. Noncontravention. Neither the entry into nor the performance
of, or compliance with, this Agreement by FEA has resulted, or will result, in
any violation of, or default under, or result in the acceleration of, any
obligation under its operating agreement, or any material mortgage, indenture,
lien agreement, note, contract, permit, judgment, decree, order, restrictive
covenant, statute, rule, or regulation applicable to FEA.
C. Litigation. To FEA's knowledge, there is no action, suit, or
proceeding, pending or threatened, against or affecting FEA in any court or
before any arbitrator or before any federal, state, municipal, or other
governmental department, commission, board, bureau, agency or instrumentality
which in any manner raises any question affecting the validity or enforceability
of this Agreement or could materially and adversely affect the ability of FEA to
perform its obligations under this Agreement, or under any document to be
delivered pursuant to this Agreement.
D. Consents. Except as may otherwise be set forth in this
Agreement, each consent, approval, authorization, order, license, certificate,
permit, registration, designation, or filing by or with any governmental agency
or body necessary for the execution, delivery, and performance of this Agreement
or the transactions contemplated hereby by FEA has been obtained or will be
obtained on or before the Closing Date.
E. Brokerage Commission. FEA has not engaged the services of any
real estate agent, broker, finder or any other person or entity for any
brokerage or finder's fee, commission or other amount with respect to the
transactions described herein on account of any action by FEA. FEA hereby agrees
to indemnify and hold Dubins harmless against any claims, liabilities, damages
or expenses arising out of a breach of the foregoing. This indemnification shall
survive Closing or any termination of this Agreement.
F. Representations True and Correct. In the event that changes
occur as to any material information, documents or exhibits referred to in this
Agreement, of which FEA has knowledge, FEA will immediately disclose the same to
Dubins when first available to FEA; and, in the event of any such material
change, Dubins may, at their election, terminate this Agreement if such change
materially adversely affects Dubins.
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G. Reliance. In engaging in this transaction, FEA is not relying
upon any representations made to it by Dubins, the Ownership Entities or any of
its partners, officers, employees, affiliates or agents that are not contained
in this Agreement.
H. Tax Matters. FEA represents and warrants that it has obtained
from its own counsel advice regarding the tax consequences of (i) the transfer
of the Xxxxx Ownership Interests to Assignee and the payment of proceeds
therefor and (ii) any other transaction contemplated by this Agreement. FEA
further represents and warrants that it has not relied on Assignee or Assignee's
representatives or counsel for such tax advice.
I. Bankruptcy with Respect to Ownership Entities or FEA. No Act
of Bankruptcy has occurred with respect to any of the Ownership Entities or FEA.
As used herein, "ACT OF BANKRUPTCY" shall mean if any of the Ownership Entities
or FEA shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all
or a substantial part of its property, (ii) admit in writing its inability to
pay its debts as they become due, (iii) make a general assignment for the
benefit of its creditors, (iv) file a voluntary petition or commence a voluntary
case or proceeding under the Federal Bankruptcy Code (as now or hereafter in
effect), (v) be adjudicated bankrupt or insolvent, (vi) file a petition seeking
to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, receivership, dissolution, winding-up or composition or
adjustment of debts, (vii) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case or proceeding under the Federal Bankruptcy Code (as now or
hereafter in effect), or (viii) take any entity action for the purpose of
effecting any of the foregoing.
9. COVENANTS.
A. Tax Covenants. Dubins shall provide Assignee with such
cooperation and information with respect to taxes relating to the Ownership
Entities or any of the Xxxxx Ownership Interests or the Real Property as
reasonably requested by Assignee and shall cooperate with Assignee with respect
to its filing of tax returns. Assignee shall promptly notify Dubins in writing
upon receipt by Assignee or any of its affiliates of notice of (i) any pending
or threatened tax audits or assessments relating to Dubins, the Ownership
Entities or any part of the Xxxxx Ownership Interests or the Real Property and
(ii) any pending or threatened federal, state, local or foreign tax audits or
assessments of Assignee or any of its affiliates, in each case which may affect
the liabilities for taxes of Dubins with respect to any tax period ending on or
before the Closing Date. Dubins shall promptly notify Assignee in writing upon
receipt by Dubins or its beneficial owners, as applicable, of notice of any
pending or threatened federal, state, local or foreign tax audits or assessments
relating to any of the Ownership Entities or any part of the Xxxxx Ownership
Interests or the Real Property. Assignee and Dubins, as applicable, may
participate at its own expense in the prosecution of any claim or audit with
respect to taxes attributable to any taxable period ending on or before the
Closing Date, provided, that Dubins shall have the right to control the conduct
of any such audit or proceeding or portion thereof for which Dubins has
acknowledged liability (except as a partner of Assignee) for the payment of any
additional tax liability, and Assignee shall have the right to control any other
audits and proceedings. Notwithstanding the foregoing, neither Assignee nor
Dubins may settle or otherwise resolve any such claim, suit to proceeding which
could have an adverse tax effect on the other party or its owners without the
consent of the other party, such consent not to be unreasonably withheld. Dubins
and Assignee shall retain all tax returns, schedules and work papers, and all
material records and other documents relating thereto, until the expiration of
the statute of limitations (and, to the extent notified by any party, any
extensions thereof) of the taxable years to which such tax returns and other
documents relate and until the final determination of any tax in respect of such
years.
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B. Conduct of Business. Dubins agree and covenant that, up to the
time of Closing, Dubins shall not take any action that is not consistent with
the operation of the business relating to the Real Property in the usual,
regular and ordinary manner consistent with prior practice. No distribution may
be made to Dubins pursuant to the partnership agreement of the Partnership,
unless such distribution is made in accordance with past practice and is
disclosed to Assignee.
10. WAIVERS, SURRENDER OR ASSIGNMENT OF RIGHTS UNDER XXXXX OWNERSHIP
INTERESTS. As of the Closing Date, Dubins surrender, waive or, to the extent
assignable, assigns to Assignee all rights and benefits otherwise afforded to
Dubins under the Xxxxx Ownership Interests (including the partnership agreement
of the Partnership) or the Real Property including, without limitation, any
rights of appraisal, rights of first offer or first refusal, buy/sell
agreements, and any right to consent to or approve of the sale or contribution
of its interest (including its portion of the Xxxxx Ownership Interests) in any
of the Ownership Entities or the Real Property to Assignee.
11. CONDITIONS PRECEDENT TO ASSIGNEE'S OBLIGATIONS. Assignee's
obligation to perform any obligations provided for in this Agreement is
conditioned upon the occurrence of the following conditions on or before the
Closing Date:
A. Assignee shall have delivered the Acceptance Certificate to
Dubins.
B. The obligations of Dubins contained in this Agreement to be
performed by them shall have been duly performed by them on or before the
Closing Date and Dubins shall not have breached any of their representations,
warranties, covenants or agreements contained herein.
C. Concurrently with the Closing, Dubins shall have executed and
delivered to Assignee the documents required to be delivered pursuant to this
Agreement.
D. INTENTIONALLY DELETED
E. No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been enacted, entered,
promulgated or enforced by any court of competent jurisdiction or Governmental
Entity that prohibits the consummation of the transactions contemplated hereby,
and no litigation or governmental proceeding seeking such an order shall be
pending or threatened.
F. There shall not have occurred between the date hereof and the
Closing Date any material adverse change in any of the assets, business,
financial condition, results of operations or prospects of any of the Real
Property or the Ownership Entities.
G. The Title Company shall be irrevocably committed to issuing
the Title Policy upon Closing insuring ownership of the Real Property in the
name of Mall Owner or its nominee or assignee in the amount equal to the
Aggregate Consideration Value, or such other amount as determined by FEA in
accordance with Section 5 hereof, subject only to Permitted Exceptions.
H. The Real Property shall not have been materially affected by
any legislative or regulatory change, or any fire, flood, accident or other
adverse event that would prohibit Assignee from using any part of the Real
Property for Assignee's intended purpose.
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I. There shall be no actions, suits or proceedings of any kind or
nature whatsoever, legal or equitable, affecting the Xxxxx Ownership Interests,
any of the Ownership Entities, or any part of the Real Property or any portion
or portions thereof in any material way, or relating to or arising out of the
ownership of the Ownership Entities or the Real Property, in any court or before
or by a federal, state, county, municipal department, commission, board, bureau,
or agency or other governmental instrumentality.
J. The Formation Transactions and the IPO shall have been
completed.
Any or all of the foregoing conditions may be waived by FEA in
its sole and absolute discretion.
12. CONDITIONS TO THE DUBINS' OBLIGATIONS. Dubins' obligation to
perform any obligations provided for in this Agreement is conditioned upon the
occurrence of the following conditions on or before the Closing Date:
A. The representations, warranties and covenants of FEA contained
in this Agreement shall be true and correct as of the Closing Date.
B. The obligations of FEA contained in this Agreement to be
performed by it shall have been duly performed by it on or before the Closing
Date and FEA shall not have breached any of its covenants or agreements
contained herein.
C. FEA shall have delivered the Acceptance Certificate to Dubins.
D. No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been enacted, entered,
promulgated or enforced by any court of competent jurisdiction or Governmental
Entity that prohibits the consummation of the transactions contemplated hereby,
and no litigations or governmental proceeding seeking such an order shall be
pending or threatened.
Any or all of the foregoing conditions may be waived by Dubins
in their sole and absolute discretion.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; REMEDY FOR BREACH.
A. Subject to Section 14 hereof, all representations and
warranties of Dubins and FEA in this Agreement shall survive the Closing for a
period of one year after the Closing Date.
B. Notwithstanding anything to the contrary in this Agreement,
except as otherwise provided in Section 14 hereof with respect to Assignee's
right to obtain an injunction, neither Dubins nor FEA shall be liable under this
Agreement for monetary damages (or otherwise) for breach of any of its
representations, warranties, covenants and obligations or in any agreement or
exhibit delivered by any of them pursuant thereto, other than pursuant to
Section 14 of this Agreement.
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14. INDEMNIFICATION.
X. Xxxxxx' Indemnity. Dubins hereby jointly and severally agree
to indemnify and hold Assignee and its direct and indirect members,
shareholders, partners, directors, officers, employees, trustees, affiliates and
agents harmless of and from all liabilities, losses, damages, costs, and
expenses (including reasonable attorneys' fees) which they may suffer or incur
by reason of any breach of Dubins' representations or warranties contained in
this Agreement and any exhibit or attachment to this Agreement.
B. FEA's Indemnity. FEA hereby agrees to indemnify and hold
Dubins and their respective direct and indirect members, shareholders, partners,
directors, officers, employees, trustees, affiliates and agents harmless of and
from all liabilities, losses, damages, costs, and expenses (including reasonable
attorneys' fees) which they may suffer or incur by reason of any breach of FEA's
representations or warranties contained in this Agreement and any exhibit or
attachment to this Agreement.
C. Limitation Period. Notwithstanding the foregoing, any claim
for indemnification under this Section 14 must be asserted in writing, stating
the nature of such claim and the basis for indemnification therefore within one
year after the Closing. If so asserted in writing within one year after the
Closing, such claims for indemnification shall survive until resolved by mutual
agreement between Dubins and FEA or by judicial determination.
15. INJUNCTIONS. Dubins agree that irreparable damage would occur to
Assignee in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that Assignee shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement by Dubins' and to enforce
specifically the terms and provisions hereof in any federal or state court (as
to which the parties agree to submit to jurisdiction for the purposes of such
action), this being in addition to any other remedy to which Assignee is
entitled under this Agreement or otherwise at law or in equity.
16. SUCCESSORS AND ASSIGNS. The rights and obligations created by this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their heirs, executors, receivers, trustees, successors and permitted assigns.
17. GOVERNING LAW. This Agreement and all transactions contemplated
hereby shall be governed by, construed and enforced in accordance with the laws
of the State of Arizona.
18. THIRD PARTY BENEFICIARY. Except as specifically set forth in this
Agreement, no provision of this Agreement is intended, nor shall it be
interpreted, to provide or create any third party beneficiary rights or other
rights of any kind in any customer, affiliate, stockholder, partner, member,
director, officer, or employee of any party to this Agreement or any other
person or entity.
19. SEVERABILITY. If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business, and
other purposes of the void or unenforceable provision and to execute any
amendment, consent, or agreement deemed necessary or desirable by Assignee to
effect such replacement.
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20. NOTICES. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to Dubins: Xxxxxx Xxxxx and Xxxxxxx "Bunny" Xxxxx
Four Tower Bridge
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to:
Xxx Xxxxxxxx, Esquire
Pozzuolo & Perkiss, P.C.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX. 00000
Fax: (000) 000-0000
If to Assignee: Xxxxxxx Equities of Arizona, L.L.C.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxxxxx Xxxxxx, Esq.
Xxx Xxxxxx, Xxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
All such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section, be deemed given
upon delivery or refusal, (ii) if delivered by facsimile transmission to the
facsimile number as provided in this Section, be deemed given upon receipt, and
(iii) if delivered by mail in the manner described above to the address as
provided in this Section, be deemed given upon receipt or refusal (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice is to be delivered pursuant to
this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto in accordance with
this Section.
21. WEEKENDS, HOLIDAYS, ETC. If the time period by which any right,
option or election provided for under this Agreement must be exercised, or by
which any act required hereunder must be performed, or by which Closing must be
held, expires on a day which is a Saturday, Sunday, or official federal or a
state holiday for the States of Arizona or New York, then such time period shall
be automatically extended through the close of business on the next business
day.
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22. FURTHER ASSURANCES. From time to time, at either party's request,
whether on or after Closing, and without further consideration, the other party
shall execute and deliver any further instruments of conveyance and take such
other actions as the requesting party may reasonably require to complete more
effectively the transfer of the Xxxxx Ownership Interests to Assignee.
23. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
24. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement, together with all
exhibits attached hereto or referred to herein, contain all representations and
the entire understanding between the parties hereto with respect to the subject
matter hereof. Any prior correspondence, memoranda or agreements are replaced in
total by this Agreement and exhibits hereto. This Agreement may only be modified
or amended upon the written consent of each party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first written above.
DUBINS:
/s/ Xxxxxx Xxxxx /s/ Xxxxxxx "Bunny" Xxxxx
------------------------------- -------------------------------
Xxxxxx Xxxxx Xxxxxxx "Bunny" Xxxxx
FEA:
Xxxxxxx Equities of Arizona, L.L.C.,
an Arizona limited liability company
/s/ Xxxxxxxx Xxxxxxx
-------------------------------
Xxxxxxxx Xxxxxxx, Manager
GENERAL PARTNER CONSENT
The undersigned general partner of Xxxxxxx Harrisburg Limited Partnership LP, a
Pennsylvania limited partnership, hereby consents to the foregoing agreement.
Dated: ______________, 2004
Xxxxxxx Harrisburg General Partner Inc.,
a Pennsylvania corporation
/s/ Xxxxxxxx Xxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxx, President
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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EXHIBIT B
LIMITED PARTNERSHIP INTEREST TRANSFER FORM
For valuable consideration, the undersigned ("Assignors") hereby
assigns and conveys to _______________________, a _________________
("Assignee"), all of the Assignors' limited partnership interest and other
rights of any nature in and to Xxxxxxx Harrisburg Limited Partnership LP, a
Pennsylvania limited partnership . The foregoing assignment is made pursuant to
the terms of that certain Xxxxx Ownership Interests Assignment Agreement dated
July __, 2004 between Assignors and Xxxxxxx Equities of Arizona, L.L.C.
Dated: ________________, 200_
ASSIGNORS:
/s/ Xxxxxx Xxxxx /s/ Xxxxxxx "Bunny" Xxxxx
------------------------------- -------------------------------
Xxxxxx Xxxxx Xxxxxxx "Bunny" Xxxxx
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