EXHIBIT 10.49
CONTRIBUTION AGREEMENT - BASIC ECONOMIC TERMS
(NORTH COUNTY)
The undersigned Transferor agrees to transfer the Property to the
undersigned Transferee and Transferee agrees to accept the transfer on the
following terms and conditions:
1. Incorporation by Reference. All of the terms and conditions of:
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a. The General Conditions to Contribution Agreement (the "General
Conditions");
b. The Addenda to General Conditions to Contribution Agreement (the
"Addenda");
c. The Exhibits to General Conditions to Contribution Agreement (the
"Exhibits"); and
d. The Schedules to General Conditions to Contribution Agreement
(the "Schedules")
which are attached hereto are incorporated by reference herein as being the
agreement of the undersigned.
2. Project. NORTH COUNTY PLAZA.
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3. Transferor. XXXXXX NORTH COUNTY ASSOCIATES.
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4. Transferee. XXXXXXXXX XXXXXX PROPERTIES OPERATING
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PARTNERSHIP, L.P., a California limited partnership.
5. Consideration to Transferor. The total sum of $18,481,641/1/
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which is comprised of the following elements:
a. Debt assumed or taken subject to $16,422,024
b. Assumption Fee and other Lender related expenses
charged against Transferor $ 144,220
c. Commission obligations of Transferor paid by
Transferee and charged against Transferor $ 90,032
d. Transferor's share of Closing Costs (estimated) $ 25,000
e. Prorations charged against Transferor (estimated) $ 5,000
f. Price Reduction to cover cost to remove and replace
storm drain piping $ 276,862
g. OP Units $1,518,503
h. Cash $ 0
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/1/ The Term Sheet Consideration of $20,001,111 has been reduced by 1,519,470
to $18,481,641 to offset for the above market interest rate of the Existing Debt
against the Property.
i. Total OP Units and Cash (being the aggregate of the
"Constituent Partner's Equity") $ 1,518,503
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j. Total Consideration $18,481,641
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The Total Consideration is subject to adjustment as provided herein and in
the General Conditions, the Addenda, the Exhibits and the Schedules.
6. Allocation. The OP Units and Cash (subject to adjustment as provided
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in the preceding sentence) will be allocated among the direct and indirect
partners (the "Constituent Partners") of Transferor as follows:
Percentage
of the aggregate
of the
Constituent
Name of Constituent OP Units Partners' allocated
Partner: (in $): Cash: Total: Equity: debt:
-------- -------- ----- ------ ------ ---------
HI-NC $759,251 $0 $759,251 50.0% $1,900,000
The Xxxxx X. X. Xxxxx,
Xx. and Xxxxxxxx X. $189,813 $0 $189,813 12.5% $ 950,000
Xxxxx Family Trust
U/A 5/9/91
Xxxxxx X. Xxxxxxx,
Trustee under the
Will of Xxxxxxx
Xxxxxx, deceased $189,813 $0 $189,813 12.5% $ 900,000
Bartfam, a California
limited partnership $189,813 $0 $189,813 12.5% $ 800,000
CJJ Limited
Partnership, a
California limited
partnership $189,813 $0 $189,813 12.5% $ 350,000
-------- -- -------- ------- ----------
Totals $1,518,503 $0 $1,518,503 100.000% $4,900,000
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7. Special Provisions:
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a. Transferee will pay down principal on the existing debt against
the Property by $2,000,000 immediately following the Closing. As a condition to
the Closing, the principal amount of the debt, the accrued but unpaid interest,
the assumption fees, the prepayment fee if any in connection with the pay down
of $2,000,000 of principal (which prepayment fee, if any, must be agreed to by
both Transferor and Transferee and, if
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approved, will be charged against Transferor's Consideration), the fact that the
Lender will allow a pay down of $2,000,000 of principal and the debt service
schedule, maturity date and date on which remaining principal may be paid
without penalty shall be verified prior to the Closing Date by a fully executed
Lender's Beneficiary Statement in such form and substance as shall be reasonably
satisfactory to and approved in writing by Transferee. In addition, the terms
and conditions of Transferee's assumption of the Existing Debt must be
reasonably satisfactory to Transferee.
b. Transferee will pay the assumption fee to Traveler's Insurance
Company in the amount of $144,220 (or in such other reasonable amount as shall
be approved by Transferor at or prior to the Closing Date) in connection with
the reduction of principal described in subparagraph 7.a. above. Such payment
made by Transferee shall be charged against Transferor's Consideration.
c. The effectiveness of this agreement is contingent upon
Transferor being able to obtain the consent of Traveler's Insurance Company to
the arrangements described in subparagraphs 7.a. and 7.b. above. Transferee
agrees to use its reasonable best efforts to cause Traveler's Insurance Company
to subordinate the lien of its Deed of Trust to the easement to be created
pursuant subparagraph 7.d. below both before and after the Closing Date. If
Transferee is not able to obtain such subordination, then Transferee covenants
with Transferor that Transferee will make all scheduled payments of principal
and interest and to pay the Existing Debt to Traveler's Insurance Company when
due.
d. At the Closing, Transferor and NC II will record a Declaration
of Restrictive Covenant Agreement and Grant of Easement ("Agreement")
containing, without limitation, the following terms and conditions:
1. The creation of an easement for ingress and egress in favor
of the North County II property ("NC II Property") over and across the existing
roadways on the Property. In addition, NC II will be granted a Bridge and
Temporary Construction Easement to construct a bridge over Buena Vista Creek
West of Building A. Transferee agrees not to default on any liens or
encumbrances which have priority over such easement and, further, agrees not to
execute any leases or other agreements which are inconsistent with such
easement.
2. The Agreement will provide (i) that the costs of installing
the improvements (including the bridge) for the newly created roadway easements
at the Westerly end of the Property will be borne 100% by NC II, (ii) that the
costs of maintaining and repairing that portion of the newly created roadway
easements (not including property taxes) located on the Property will be borne
50% by Transferee and 50% by NC II (provided, however, that the cost of
maintaining the bridge and the improvementslocated on NC II Property shall be
borne 100% by NC II), and (iii) that the Property's share of the costs of the
existing easement (the "PCR Easement") and proposed bridge (the "Easterly
Improvements") along the Eastern boundary of the Property (located on land owned
by Plaza Camino Real) shall be borne as follows: (x) The costs of installing the
Easterly Improvements (including the Easterly bridge) will be borne 100% by NC
II; (y) the benefited property's share of the costs (as such costs are defined
in the PCR Easement) of maintaining and repairing the PCR Easement (not
including property taxes) will be borne
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50% by Transferee and 50% by NC II and (z) the cost of maintaining the bridge
located on the Easterly Improvements and that portion of the Easterly
Improvements which are located on NCII Property shall be borne 100% by NC II.
f. Transferee agrees that it will not oppose or object to any
proposed development of the NCII Property based on the intended use, the traffic
impact or any other aspect of the proposed development; provided, however, that
Transferee may object to a proposed development which offends common decency or
could result in a dangerous or nuisance condition having a materially adverse
impact on Transferee's use of the Property. Transferee may not object to a
proposed use because it might attract tenants which compete with tenants on the
Property. The provisions of this subparagraph 7.5. shall not be a covenant
running with the land, shall run in favor only of NCII and not any of its
assignees or transferees, shall not be recorded against the Property in any form
and shall entirely cease and terminate when the present partners of NCII cease
to have any interest in the NCII Property.
g. Transferee will receive a credit against Transferor's
Consideration in the amount of $276,862 to cover the cost of removing and
replacing the storm drain piping on the Property. Prior to the Closing Date,
Transferor will deposit the sum of $24,000 (the "Deposit") in a separate escrow
account with the Title Company pursuant to an Escrow Agreement (which shall be
in form and substance satisfactory to Transferor and Transferee) which shall
have the following basic provisions: (i) to the extent that Transferee's cost to
remove and repair the storm drain piping shall exceed $276,862 (the "Overrun"),
the Title Company shall disburse to Transferee the amount of the Overrun up to
the maximum amount of the Deposit; (ii) prior to making a request for a
disbursement of funds from the Deposit, Transferee shall give written notice to
Transferor and furnish reasonably adequate back up information supporting such
request; (iii) Transferor agrees that it will not object to a disbursement from
the Deposit unreasonably; and (iv) the unexpended portion of the Deposit shall
be paid over to Transferor on December 30, 1998.
h. In addition to the Consideration described in paragraph 5 above,
Transferee shall pay to the Constituent Partners (in the ratio set forth in the
fifth column of paragraph 6), additional consideration ("Additional
Consideration") in the amount of $600,000. The Additional Consideration shall be
paid on the date (the "Second Payment Date") which is the earlier to occur of
(i) two years following the Closing Date, or (ii) the date on which a
Certificate of Occupancy is issued for any space located on Pad R (which is
included within the legal description of the Property). The Additional
Consideration shall be paid in the form of a number of OP Units determined as
follows: divide the Additional Consideration of $600,000 by the average closing
price of shares of stock of AHP for the five trading days immediately preceding
the Second Payment Date.
i. Notwithstanding the provisions of Addendum V, Transferee may
allow Xxxxxx Xxxxxxxx Associates ("HMA") to guarantee $200,000 (the "HMA
Guarantee") of debt against the Property in addition to the guarantees of the
Constituent Partners so that the Aggregate Guaranties will consist of the
amounts shown in the sixth column of paragraph 6 plus the HMA Guarantee.
Accordingly, for purposes of Addendum V, (including, without limitation, the
provisions applicable to Substituted Debt), HMA shall be deemed to be a
Constituent Partner of Transferor and the aggregate guaranties of the
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Constituent Partners (including HMA as a deemed Constituent Partner) shall be
$5,100,000.
j. The format for the contribution of the Property shall be as
follows: Transferor will convey the Property to Transferee. Transferor will
designate the Constituent Partners to be the recipients of the OP Units as is
shown in paragraph 6 above. The Constituent Partners severally and
proportionately will assume the obligations of Transferor under the
Representations and Warranties and Transferor will be released from liability
under the Representations and Warranties. Notwithstanding the foregoing, each
Constituent Partner shall be solely responsible for his own investment
representations and investor suitability representations.
Executed as of March 23, 1998.
Transferor: XXXXXX NORTH COUNTY ASSOCIATES,
a California general partnership
By: HI-NC, a California general
partnership, general partner
By: Xxxxxx Investments,
a California general partnership,
general partner
By: WWH Investments, Inc.,
a California corporation,
general partner
By: _______________________
Xxxxxxx X. Xxxxxx, Xx.
Its: President
Transferee: Xxxxxxxxx Xxxxxx Properties Operating
Partnership, L.P.
a California limited partnership
By: Xxxxxxxxx Xxxxxx Properties, Inc.,
a Maryland corporation, its General
Partner
By: Xxxx Xxxxxxx
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Its: Senior Vice President
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AGREEMENT OF TITLE COMPANY
The undersigned executes this Agreement for the purposes of acknowledging its
agreement to serve as escrow agent in accordance with the terms of this
Agreement and to acknowledge receipt of the Xxxxxxx Money from the Transferee.
First American Title Insurance Company
By:
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Its:
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Date: ________________________, 1998
Escrow No. N 984021E
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