EXHIBIT 5.4
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT is made and entered as the 9th day of
September, 1997, by and between (i) Castlewood Realty Company, Inc., the sole
member of Parkville Shopping Center, L.L.C., a Maryland limited liability
company to be formed (sometimes hereinafter referred to as "Contributor"), and
(ii) FIRST WASHINGTON REALTY LIMITED PARTNERSHIP, a Maryland limited partnership
(hereinafter referred to as "FWRLP").
W I T N E S S E T H:
WHEREAS, the Contributor is the record and beneficial owner of that
certain parcel of real property containing approximately 12.7183 acres of land
as more particularly described on Exhibit A hereto (collectively, the "Land"),
together with the shopping center known as Parkville Shopping Center located in
Baltimore City and Baltimore County, Maryland, and containing approximately
140,834 square feet of leasable area and all other buildings and improvements
situated thereon (collectively, the "Building"), and all personal property and
fixtures located therein (other than that owned by tenants) (the "Personalty"),
and all appurtenances, rights, easements, rights-of-way, tenements and
hereditaments incident thereto (the "Additional Property") (the Land, Building,
Personalty and Additional Property are hereinafter collectively referred to as
the "Property");
WHEREAS, immediately prior to Closing, Contributor will have caused the
Property to be owned by and contributed to a new Maryland limited liability
company known as Parkville Shopping Center, L.L.C. (the "Company") such that
Contributor will be the sole member thereof immediately prior to Closing; and
WHEREAS, Contributor and FWRLP desire to enter into this Agreement
relating to the contribution by Contributor to FWRLP of all of its membership
interests in the Company (the "Membership Interests") in exchange for certain
interests in FWRLP.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Contribution. Subject to the terms and conditions set forth in this
Agreement, Contributor and FWRLP agree to the contribution by Contributor to
FWRLP (the "Contribution") of all of the Membership Interests. Immediately prior
to Closing, Contributor shall have caused the Property to be owned by and
contributed to the Company such that Contributor will be the sole member
thereof.
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2. Consideration.
(a) In consideration of the Contribution of all of the
Membership Interests, FWRLP shall issue common partnership units of FWRLP (the
"Units") in an aggregate amount calculated as follows: Seven Million Eight
Hundred Thousand Dollars ($7,800,000.00) ("Gross Consideration") less the
outstanding and unpaid principal balance of the Northern Loan (as defined below)
at the Closing ("Net Asset Value"), with the number of Units determined by
dividing the Net Asset Value by a price per Unit (the "Unit Price") equal to
$24.00, rounded to the nearest one (1). FWRLP will issue all of the Units to the
Contributor.
(b) At Closing, the Membership Interests in the Company shall
be contributed to FWRLP with the Property then being subject to the
indebtedness, lien and operation of the Northern Loan, including without
limitation the Mortgage (as defined below).
(c) (i) The Property is presently encumbered by a Deed of
Trust and Security Agreement ("Mortgage") from the Partnership, as debtor, for
the benefit of Northern Life Insurance Company, as secured party (the "Lender"),
which Mortgage secures an original principal indebtness of $3,850,000.00 with
interest thereon payable over the term thereof (which ends on August 1, 1998) at
a fixed interest rate of 7.63% per annum, as evidenced by a Note from the
Partnership to Lender ("Note"). The Mortgage and Note and all documents and
instruments executed in connection therewith are collectively referred to as the
"Northern Loan." The Northern Loan requires equal monthly installments of
principal and interest in the amount of the $29,678.68 per month. The
outstanding principal balance under the Northern Loan as of the date hereof is
approximately $3,300,000.00. Copies of the Mortgage and Note are attached hereto
as Exhibits N and O, respectively.
(ii) FWRLP's obligations under this Agreement shall be expressly
contingent on the condition that FWRLP receive by Closing a letter (the
"Letter") from Lender (i) consenting to the Contribution of the Membership
Interests to FWRLP and the assumption of the Northern Loan by the Company
or FWRLP (or its designee) as borrower, (ii) confirming that the Northern
Loan is as described above, (iii) certifying that, to the best knowledge of
the Lender, there is no default or event which with notice or lapse of
time, or both, would constitute a default under the Northern Loan. At
Closing, the Contributor shall execute an estoppel certificate in favor of
FWRLP certifying that, to the best knowledge of the Contributor, there is
no default, or event of default which with notice or lapse of time, or
both, would constitute a default under the Northern Loan. The Contributor
shall reasonably cooperate with FWRLP in its efforts to obtain such Letter
from Lender before the end of the Feasibility Period (as defined below).
FWRLP shall be responsible for all costs and fees charged by the Lender in
connection with the assumption of the Northern Loan (including but not
limited to
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assumption fees, Lender's counsel fees and title insurance premiums). If such
Letter is not received by FWRLP by Closing, FWRLP shall have the right to
terminate this Agreement, in which event the Deposit (defined below), together
with interest thereon, shall be returned to FWRLP. If Lender does not consent or
if Lender's Letter is other than as set forth above and is not acceptable to
FWRLP, FWRLP shall have the right, at its sole election, to terminate this
Agreement by giving written notice thereof to Contributor, whereupon the
Deposit, together with interest thereon, shall be returned to Contributor and
neither party shall have any further liability to the other.
(iii) Contributor's obligations under this Agreement
shall be
expressly contingent on the condition that the Lender, on or before the Closing,
shall have released Castlewood Realty Company, Inc. from all obligations and
liabilities under the Northern Loan pursuant to a release document(s) reasonably
acceptable to the Contributor (the "Release"). FWRLP and Contributor shall
cooperate in good faith (at no cost to FWRLP or Contributor) to obtain such
Release from the Lender. If such Release is not obtained by the Closing Date,
Contributor may elect to either (i) terminate this Agreement, in which case the
Deposit shall be returned to FWRLP and neither party shall have any further
liability to the other, or (ii) extend the Closing Date for up to 30 days and if
such Release is not obtained by the end of such 30-day period, then Contributor
may elect to proceed to Closing or terminate this Agreement.
(d) The Contributor and FWRLP will settle any pro rations and
closing adjustments as provided in this Agreement as follows: (i) if Contributor
owes the same, on a net basis, to FWRLP, through a reduction in Units in an
amount equal to the net adjustment divided by the Unit Price, rounded to the
nearest one (1), to be delivered at the Closing, and (ii) if FWRLP owes the
same, on a net basis, to Contributor, through additional Units in an amount
equal to the net adjustment divided by the Unit Price, rounded to the nearest
one (1), to be delivered at the Closing. Contributor acknowledges and agrees
that the Units will not be redeemable for cash or exchangeable for common stock
of the REIT for a period of thirteen (13) months after their issuance, all as
more fully discussed in the Confidential Information Statement (as hereinafter
defined), as supplemented through the date hereof.
(e) Notwithstanding any provision hereof to the contrary, the
Contribution of the Membership Interests to FWRLP by the Contributor as set
forth herein shall constitute a "Capital Contribution" within the meaning of the
FWRLP Partnership Agreement and is intended, to the fullest extent possible, to
be governed by Section 721(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), and all parties to this Agreement will report the transaction
evidenced hereby consistently with this Section 2(e). Since the Contribution of
the Membership Interests to FWRLP will terminate the Company for federal income
tax purposes, FWRLP agrees that the Contributor shall have the right and
obligation to file final tax returns for the Company as of the Closing Date.
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3. Deposit.
(a) Within two (2) business days after the date of delivery to
FWRLP of an original of this Agreement executed by Contributor together with
completed Exhibits hereto (the date of such delivery by Contributor being the
"Acceptance Date"), FWRLP shall deliver to the Title Company, as escrow agent, a
deposit (together with interest earned thereon, the "Deposit") of Fifty Thousand
Dollars ($50,000.00) by check payable to the Commercial Settlements, Inc., 0000
X Xxxxxx, X.X., Xxxxxxxxxx, XX 00000 (the "Title Company").
(b) [Intentionally Omitted].
(c) The Title Company will immediately provide Contributors
with written evidence of receipt of such Deposit. The Title Company shall place
the Deposit in an interest-bearing account within two (2) business days after
the date of receipt thereof, and interest on the Deposit shall accrue to the
benefit of the party entitled to the Deposit pursuant to this Agreement. The
Deposit shall be held by the Title Company pursuant to the terms and conditions
of this Agreement.
(d) In the event that, at any time prior to Closing, either
the Contributor or FWRLP provides Title Company with a certification (a copy of
which shall be delivered contemporaneously to the other party) that the
Contributor or FWRLP, as the case may be, is entitled to the Deposit pursuant to
the terms of this Agreement, Title Company shall deliver the Deposit to such
party within seven (7) business days after receipt of said notice, unless the
other party disputes such certification by written notice to Title Company (a
copy of which shall be delivered contemporaneously to the other party) delivered
within five (5) business days of Title Company's receipt of the initial
certification. In such event, Title Company shall hold the Deposit pending
resolution of such dispute. Any payment of the Deposit to the Contributor shall
be made by certified check payable to Contributor or wire transfer.
(e) The parties acknowledge that Title Company is acting
solely as a stakeholder at their request and for their convenience, that Title
Company shall not be deemed to be the agent of either of the parties, and Title
Company shall not be liable to either of the parties for any act or omission on
its part unless taken or suffered in bad faith, in willful disregard to this
Agreement or involving gross negligence. The Contributor and FWRLP shall jointly
and severally indemnify and hold Title Company harmless from and against all
costs, claims and expenses, including reasonable attorneys' fees, incurred in
connection with the performance of Title Company's duties hereunder, except with
respect to actions or omissions taken or suffered by Title Company in bad faith,
in willful disregard of this Agreement or involving gross negligence on the part
of Title Company.
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4. Closing. Except as otherwise provided in this Agreement, the
Contribution contemplated herein shall be consummated at the "Closing"
(sometimes hereinafter referred to as the "Closing"), which shall take place on
the date (the "Closing Date") specified by FWRLP on not less than ten (10) days
notice to Contributors, provided that the Closing Date shall not be later than
forty-five (45) days after the end of the Feasibility Period; provided, however,
that if the Lender has not completed all documentation consenting to the
contribution of the Membership Interests by such date, then the Closing Date
shall be extended for such reasonable time period as is required to complete
same, not to exceed 30 days. The Closing shall take place at the offices of
First Washington Realty Limited Partnership, 0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000, or at such other place as may mutually agreed upon by
Contributor and FWRLP.
5. Representations and Warranties of Contributor. In order to induce
FWRLP to enter into this Agreement and to issue the Units in consideration for
the Membership Interests, Contributor makes the following representations and
warranties, each of which is material and shall survive Closing without
limitation, notwithstanding any investigation at any time made by or on behalf
of FWRLP:
(a) Authority. Contributor has the right, power and authority
to enter into this Agreement and to contribute its Membership Interests in
accordance with the terms and conditions of this Agreement. Except for the
consents required under the Northern Loan, no consents of any persons other than
Contributor are required for such execution or to cause such Contributor to
consummate the transactions contemplated by this Agreement. This Agreement is
the valid and binding obligation of Contributor, enforceable against Contributor
in accordance with its terms.
(b) No Defaults. Neither the execution of this Agreement nor
the consummation of the transactions contemplated hereby will: (i) subject to
any approval required under the Northern Loan, conflict with, or result in a
breach of, the terms, conditions, or provisions of or constitute a default under
any agreement or instrument to which such Contributor is a party or by which
such Contributor is bound, or (ii) subject to any approval required under the
Northern Loan, violate any restriction, requirement, covenant or condition to
which such Contributor is subject or by which such Contributor is bound.
(c) Ownership of Interests. Contributor will own all of the
Membership Interests in the Company after the Property is contributed to the
Company immediately prior to Closing, free and clear of all liens, charges,
encumbrances, restrictive agreements and assessments other than the provisions
of the Company's Operating Agreement. Upon the contribution of Contributor's
Membership Interests to FWRLP or its designee(s), FWRLP will receive good and
absolute title thereto, free from all liens, charges, encumbrances, restrictive
agreements and assessments whatsoever other than the provisions of the Operating
Agreement. Such Contributor hereby waives, with
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respect to the contribution contemplated by this Agreement, any "right of
refusal" or other restriction on transfer set forth in the Operating Agreement.
There are no outstanding options, contracts, calls, commitments or demands of
any nature relating to the Membership Interests of such Contributor, except as
set forth in the Operating Agreement.
(d) Securities Law Matters.
(i) Contributor is now or, at the time of Closing, will be, an
"accredited investor" as such term is defined under Rule 501 promulgated
under the Securities Act of 1933, as amended (the "Securities Act");
(ii) Such Contributor's primary residence or principal place of
business is in the State of Maryland;
(iii) Such Contributor is acquiring the Units for such Contributor's
account for investment purposes only and not with a present view to
distribution;
(iv) Taking into account the information and resources such
Contributor can practically bring to bear on the acquisition of the Units
in FWRLP contemplated hereby, such Contributor is knowledgeable,
sophisticated and experienced in making, and is qualified to make decisions
with respect to investments in securities presenting an investment decision
like that involved in the acquisition of the Units, including investments
in securities issued by FWRLP, and has requested, received, reviewed and
considered all information such Contributor deems relevant in making an
informed decision to acquire the Units (including the Confidential
Information Statement attached hereto which contains the First Amended and
Restated Agreement of Limited Partnership of FWRLP and any Amendments
thereto (the "Partnership Agreement"), except that the Partnership
Agreement has been further amended solely to reflect exchanges of Units for
shares of the REIT's common stock (the "Common Stock") by holders of such
Units in accordance with the terms of the Partnership Agreement);
(v) Such Contributor will not, directly or indirectly, voluntarily
offer, sell, pledge, transfer or otherwise dispose of (or solicit any
offers to buy, purchase or otherwise acquire or take a pledge of ) any of
the Units except in compliance with the Securities Act and the rules and
regulations promulgated thereunder and with the terms and conditions of the
Partnership Agreement;
(vi) Such Contributor acknowledges that the Units to be issued must be
held unless and until they are subsequently registered under the Securities
Act and under applicable state securities or blue sky laws, unless
exemptions from such registrations are available at the time of resale;
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(vii) Prior to the issuance of the Units, such Contributor will
execute all such other documents and instruments as may be reasonably
necessary to allow FWRLP to comply with federal and state securities law
requirements with respect to the issuance of the Units and to comply with
the terms of the Partnership Agreement; and
(viii) Such Contributor acknowledges and agrees that the Units to be
issued hereunder shall not be exchangeable and shall not be exchanged for
Common Stock for a period of thirteen (13) months from and after the date
of issuance to such Contributor.
(e) No Contributor is a person other than a United States
person within the meaning of the Internal Revenue Code of 1986, as amended (the
"Code"). The transaction contemplated herein is not subject to the tax
withholding provisions of Section 3406 of the Code, or Subchapter A of Chapter 3
of the Code or of any other provision of law.
6. Representations and Warranties of Contributor as to the Property. In
order to induce FWRLP to enter into this Agreement and to issue the Units in
consideration for the Membership Interests, the Contributor, hereby makes the
following representations and warranties as of the date hereof, each of which is
material and shall (except as otherwise set forth in Section 6(s)), survive
Closing for a period of one (1) year (unless expressly provided that it will
survive Closing without such limitation), notwithstanding any investigation at
any time made by or on behalf of FWRLP:
(a) Authority. Contributor is a corporation duly organized and
in good standing under the State of Maryland. The Company will be a limited
liability company duly organized and in good standing under the laws of the
State of Maryland. The Company's Operating Agreement and all Amendments thereto
(collectively, the "Operating Agreement") including all Articles of Organization
and all Amendments thereto shall be in the form attached hereto an Exhibit P.
Notwithstanding anything to the contrary, the representations and warranties
contained in this Section 6(a) shall survive Closing without being subject to
the one year limitation.
(b) Title. Contributor is the sole owner of fee simple title
to the Property, and immediately prior to Closing after contribution of the
Property to the Company, the Company will be the sole owner of fee simple title
to the Property.
(c) Compliance with Existing Laws. To the best of the
Contributor's knowledge and except as set forth on Exhibit D attached hereto,
(i) the Contributor is not in violation of, and has materially complied with,
any and all applicable building, zoning, environmental or other ordinances,
statutes or regulations of any governmental agency, in respect to the ownership,
use, maintenance, condition and operation of the Property or any part thereof,
and (ii) the Contributor possesses (and at Closing will possess) all licenses,
certificates, permits and authorizations necessary for the use and operation of
the Property in the manner in which it is currently being operated by the
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Contributor, and the requisite certificates of the fire marshalls or board of
fire underwriters have been issued for the Property, if applicable. The Property
is zoned B-2-1 (for portion of Property in Baltimore City) and BL-CCC (for
portion of Property in Baltimore County). To the best of the Contributor's
knowledge, the Building and all related facilities are now in conformance with
all applicable zoning laws, and no variance, exception or other modification of
such laws was necessary in order to authorize the use or occupancy of any
portion thereof, or if necessary it was obtained.
(d) Leases. True, correct and complete copies of all of the
leases of the Property and any amendments thereto (collectively, the "Leases"),
have been delivered to FWRLP. Attached hereto as Exhibit B is a description of
all of the Leases and a current rent schedule ("Rent Schedule") covering the
Leases, which is true and correct in all material respects. There are no leases
or tenancies of any space in the Property other than those set forth in Exhibit
B or, to the Contributor's knowledge, any subleases or subtenancies unless
otherwise noted therein. Except as otherwise set forth in Exhibit B or elsewhere
in this Agreement:
(i) The Leases are in full force and effect and to the best of the
Contributor's knowledge constitute a legal, valid and binding obligation of
the respective tenants;
(ii) no tenant has an option to purchase the Property or any portion
thereof;
(iii) no renewal or expansion options have been granted to the
tenants, except as provided in the Leases;
(iv) to the best of the Contributor's knowledge, the Contributor is
not in default under any of the Leases;
(v) the rents set forth on the Rent Schedule are being collected on a
current basis and there are no arrearages in excess of one month, except as
indicated in Exhibit B hereto, nor has any tenant paid any rent, additional
rent or other charge of any nature for a period of more than thirty (30)
days in advance;
(vi) all work for tenant alterations and other work or materials
contracted for by the Contributor and any tenant has been completed by the
Contributor, and all work and materials have been fully paid for or will be
paid for by Closing except as indicated on Exhibit B;
(vii) the Contributor has not sent written notice to any tenant
claiming that such tenant is in default, which default remains uncured, and
to the best of the Contributor's knowledge, no tenant is in default under
its Lease, except as indicated in Exhibit B hereto;
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(ix) no action or proceeding instituted against the Contributor by any
tenant is presently pending in any court; and
(x) there are no security deposits other than those set forth in
Exhibit B.
(e) Service Contracts. Attached hereto as Exhibit C is a
complete and correct list of all contracts or agreements relating to the
management, leasing, operation, maintenance or repair of the Property (the
"Service Contracts"). True and correct copies of all of the Service Contracts
have been delivered to FWRLP. Except in the case of a default by the vendor
under a specific Service Contract, no Service Contract will be terminated,
amended, modified or supplemented prior to the Closing Date without FWRLP's
prior written approval, which approval shall not be unreasonably withheld,
conditioned or delayed.
(f) Tax Bills. The Contributor has delivered true and correct
copies of tax bills issued by any applicable federal, state or local
governmental authority with respect to the Property for the most recent past and
current tax years, and any new assessment received with respect to a current or
future tax year.
(g) Insurance. The Property is insured for its replacement
cost against loss or damage sustained as a result of fire or other casualty and
the Partnership has rent loss insurance in place for the Property. Attached
hereto as Exhibit E is a list of all hazard, liability and other insurance
policies presently affording coverage with respect to the Property. The
Contributor shall maintain in full force and effect all such policies until the
Closing Date, and shall cause its insurer to name FWRLP as an additional insured
as a contract party on its rent loss policy with respect to the Property.
(h) Possession of Property. Possession of the Property shall
be delivered to FWRLP at Closing in its "as is, where is" condition as of the
date of FWRLP's execution of this Agreement.
(i) Tenant Estoppels. The Contributor represents and warrants
that it shall use reasonable good faith efforts (without cost to the
Contributor) to obtain and deliver to FWRLP a tenant estoppel letter from each
tenant in substantially the form attached hereto as Exhibit F (or in such form
or containing such information as may be required by the lease of such tenant)
from each of the tenants of the Property confirming the information set forth in
the Rent Schedule attached as Exhibit B hereto.
(j) Condemnation Proceedings. No condemnation or eminent
domain proceedings are pending or, to the best of the Contributor's knowledge,
threatened against the Property or any part thereof, and the Contributor has not
made any commitments to or received any written notice, of the desire of any
public authority or
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other entity to take or use the Property or any part thereof whether temporarily
or permanently, for easements, rights-of-way, or other public or quasi-public
purposes.
(k) Litigation. Except as set forth on Exhibit G hereto, no
litigation is pending or, to the best of the Contributor's knowledge, threatened
against Contributor or the Company, including administrative actions or orders
against the Contributor or the Company relating to governmental regulations,
affecting the use, operation or ownership of the Property or any part thereof as
contemplated herein, other than those being defended by the Contributor's or the
Company's liability insurers.
(l) No Defaults. Neither the execution of this Agreement nor
the consummation of the transactions contemplated hereby will: (i) subject to
any approval required under the Northern Loan, conflict with, or result in a
breach of, the terms, conditions or provisions of, or constitute a default
under, any agreement or instrument to which the Contributor, or the Company is a
party or by which the Contributor, the Company or the Property is bound, (ii)
subject to the approval required under the Northern Loan, violate any
restriction, requirement, covenant or condition to which the Contributor or the
Company is subject or by which the Contributor, the Company or the Property is
bound, or (iii) result in the cancellation of any contract or lease pertaining
to the Property.
(m) [Intentionally Omitted].
(n) Separate Tax Lot and Subdivision. To the best of the
Contributor's knowledge, the Land is the subject of a separate subdivision, and
the Land is assessed for tax purposes as a separate and distinct parcel(s).
(o) Hazardous Waste. Except as set forth in that certain
Environmental Assessment report of Environmental Management Group, Inc. dated
May 9, 1988, the Contributor has no actual knowledge of any discharge, spillage,
uncontrolled loss, seepage or filtration (a "Spill") of oil, petroleum or
chemical liquids or solids, liquid or gaseous products or any hazardous waste or
hazardous substance (as those terms are used in the Comprehensive Environmental
Response, Compensation and Liability Act of 1986, as amended, the Resource
Conservation and Recovery Act of 1976, as amended, or in any other applicable
federal, state or local laws, ordinances, rules or regulations relating to
protection of public health, safety or the environment, as such laws may be
amended from time to time) at, upon, under or within the Land or any contiguous
real estate. To the best of the Contributor's knowledge, there is no proceeding
or action pending or threatened by any person or governmental agency regarding
the environmental condition of the Property. To the Contributor's knowledge, the
Building is totally free of friable asbestos requiring remediation.
(p) Certificates of Occupancy. The Contributor will not amend
any certificates of occupancy for the Property and will maintain them in full
force and effect to the extent that the Contributor is responsible for them.
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(q) Licenses and Permits. The Contributor has received no
notice, nor has any knowledge, that Contributor or the Company is lacking any
required permit or license issued by applicable governmental authorities for
operation, maintenance or ownership of the Property ("Licenses").
(r) Operating Statements. Attached hereto as Exhibit H are
true and correct operating statements of the Property for fiscal years ended
September 30, 1994, 1995 and 1996. Also attached as Exhibit H is a year-to-date
operating statement for the Property.
(s) Utilities. To the best of Contributor's knowledge,
adequate, usable public sewers, public water facilities, gas and/or electrical
facilities necessary to the operation of the Property are installed in and are
duly connected to the Property . Notwithstanding anything to the contrary, the
representations and warranties set forth in this Section 6(s) shall not survive
Closing.
(t) Personal Property. Attached hereto as Exhibit I is a true,
correct and complete inventory of all personal property ("Personal Property")
owned by the Contributor or the Company, if any, used in the management,
maintenance and operation of the Property (other than trade fixtures or personal
property of tenants) which is to be transferred to FWRLP. Contributor may remove
all equipment not listed on Exhibit I.
(u) Leasing Commissions. At Closing there shall be, no outstanding or
contingent leasing commissions or fees payable with respect to the Property
(v) Partnership Liabilities. Except for (i) the obligations
and liabilities of the Company which FWRLP is taking the Membership Interests
subject to under Section 2 (c) above, and (ii) any accrued liabilities and
obligations of the Company which are being adjusted at Closing pursuant to
Section 12 of this Agreement, and (iii) matters disclosed or referred to in the
Exhibits attached hereto, the Company shall not have any liabilities or
obligations, either accrued, absolute or contingent or otherwise, which will not
be paid or discharged on or before the Closing Date. In addition, the
Contributor has not received notice of any, and to the best of the knowledge of
the Contributor, there is, as of the date of execution of this Agreement, no
basis for any, claim against (or liability of) the Contributor or the Company
arising from the business done, transactions entered into or other events
occurring prior to the Closing Date other than the obligations and liabilities
described in the preceding sentence.
(w) Partnership for Tax Purposes. The Company is, and at all
times has been, properly treated as a "division" of Contributor for Federal
Income Tax purposes, and the Company itself has not been treated as an
"association" or "publicly traded partnership" taxable as a corporation. The
foregoing representation shall survive Closing without being subject to the one
year limitation.
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(x) Taxes. Contributor and the Company have timely filed with
the appropriate taxing authorities all returns (including without limitation
information returns and other material information) in respect of Federal, State
and local taxes (collectively "Taxes") required to be filed by it through the
date hereof and will timely file any such returns required to be filed by it on
or prior to the Closing Date. The returns and other information filed (or to be
filed) are complete and accurate in all material respects. All Taxes of the
Contributor and Company in respect of periods beginning before the Closing Date
have been timely paid, or will be timely paid prior to the Closing Date, and the
Contributor and the Company has no material liability for Taxes in excess of the
amounts so paid. All Taxes that the Company has been required to collect or
withhold have been duly collected or withheld and, to the extent required when
due, have been or will be (prior to Closing Date) duly paid to the proper taxing
authority. No audits of any of the Company's federal, state or local returns for
Taxes by the relevant taxing authorities have occurred, and no material
deficiencies for Taxes of the Company have been claimed, proposed or assessed by
any taxing or other governmental authority against the Company. There are no
pending or, to the best of knowledge of the Contributor, threatened audits,
investigations or claims for or relating to any material additional liability to
the Company in respect of Taxes, and there are no matters under discussion with
any governmental authorities with respect to Taxes that in reasonable judgement
of the Contributor or its counsel, is likely to result in a material additional
liability for Taxes. There are no liens for taxes (other than for current taxes
not yet due and payable) on any of the assets of the Company. The foregoing
representations and covenants contained in this Section 6(x) shall survive
Closing without being subject to the one year limitation.
7. Obligations of Contributor Pending Closing. From and after the date
of this Agreement through the Closing Date, Contributor covenants and agrees as
follows:
(a) Maintenance and Operation of Premises. The Contributor
will cause the Property to be maintained in its present order and condition,
normal wear and tear, and damage by fire or other casualty (subject to Section
13) excepted, and will cause the continuation of the normal operation thereof,
including the purchase and replacement of fixtures and equipment, and the
continuation of the normal practice with respect to maintenance and repairs so
that the Property will, except for normal wear and tear and damage by fire or
other casualty (subject to Section 13), be in substantially the same physical
condition on the Closing Date as on the date hereof.
(b) Licenses. Contributor shall use its commercially
reasonable efforts to preserve in force all Licenses and to cause those expiring
to be renewed.
(c) Changes in Representations. Contributor shall notify FWRLP
promptly, and FWRLP shall notify Contributor promptly, if either becomes aware
of any occurrence prior to the Closing Date which would make any of its
representations, warranties or covenants contained herein not true in any
material respect.
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(d) Obligations as to Leases. From the Acceptance Date to the
expiration of the Feasibility Period provided for in Section 14, Contributor
shall have the right to enter into new leases for space at the Property ("New
Lease(s)") or to amend, modify, renew, supplement or extend any Lease in any
respect or approve any assignment of leases or subletting of leased space, or
terminate any Lease (with respect to any provision amending, modifying,
renewing, supplementing or extending, etc. above, "Amended Lease(s)"), and as to
any Amended or new Leases entered into by the Contributor during this period,
the Contributor shall give FWRLP notice (including therewith copies of the
Amended and New Leases and all relevant data related to the particular Amended
or New Lease) of such Amended and/or New Leases within three (3) days after the
entry into any Amended or New Lease, but, in any event, not later than seven (7)
days prior to the expiration of the Feasibility Period. After the expiration of
the Feasibility Period, the Contributor shall not, without FWRLP's prior written
consent (which consent shall not be unreasonably withheld), amend, modify, renew
or extend any Lease in any respect unless required by law, or enter into new
leases or approve any assignment of leases or subletting of leased space, or
terminate any Lease. If FWRLP does not respond within five (5) business days of
written request for consent from the Contributor, FWRLP shall be deemed to have
consented to such request. The Contributor hereby further agrees that if any
space is vacant on the Closing Date, FWRLP shall accept the Property subject to
any vacancy as of the Closing Date, provided that the vacancy was not permitted
or created by the Contributor in violation of any restrictions contained in this
Section 7(d). The Contributor shall not be responsible for vacancy caused by a
breach by tenant under its lease. After the end of the Feasibility Period and
prior to Closing, Contributors shall not apply all or any part of the security
deposit of any tenant unless such tenant has vacated the Property.
(e) Obligations as to Northern Loan. The Contributor shall
not, without FWRLP's prior written consent, (i) prepay, or permit the Company to
prepay, the Northern Loan, or (ii) modify or amend, or permit the Company to
modify or amend, any of the documents evidencing or securing the Northern Loan
or otherwise entered into in connection with the Northern Loan. The Contributor
shall make, or cause the Company to make, all payments required to be made under
the Northern Loan when due, shall perform, or cause the Company to perform, all
obligations under the Northern Loan and shall keep, and cause the Partnership to
keep, the Northern Loan free from default.
8. Representations and Warranties of FWRLP. In order to induce
Contributor to enter into this Agreement and to contribute the Membership
Interests to FWRLP, FWRLP, and, as to Sections 8(a), 8(b), 8(e), 8(f) and 8(g),
First Washington Realty Trust, Inc ("REIT") hereby make the following
representations and warranties as of the date hereto, each of which is material
and shall survive Closing, notwithstanding any investigation at any time made by
or on behalf of Contributor or the Company:
(a) Authority of FWRLP and the REIT. FWRLP is a limited partnership
duly organized and existing and in good standing under the laws of the
State of
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Maryland. Subject to the approval of the Board of Directors of the REIT, as set
forth in Section 9(a)(ix), FWRLP and the REIT have all necessary power and
authority to execute, deliver and perform this Agreement and consummate all of
the transactions contemplated by this Agreement, including without limitation
the Registration Rights Agreement referred to in Section 18 and attached hereto
as Exhibit K. Subject to the approval of the Board of Directors of the REIT as
set forth in Section 9(a)(ix), this Agreement is the valid and binding
obligation of FWRLP and the REIT, enforceable against each of them in accordance
with its terms.
(b) No Defaults. Neither the execution of this Agreement nor
the consummation of the transactions contemplated hereby will: (i) conflict
with, or result in a breach of, the terms, conditions or provisions of, or
constitute a default under, any agreement or instrument to which FWRLP or the
REIT is a party, (ii) violate any restriction, requirement, covenant or
condition to which the FWRLP or the REIT is subject, and (iii) constitute a
violation of any applicable code, resolution, law, statute, regulation,
ordinance, rule, judgment, decree or order.
(c) Disclosure Documents. Attached hereto as Exhibit L is a
true and correct copy of the Confidential Information Statement, as supplemented
through the date hereof. The FWRLP Partnership Agreement, as contained in the
Confidential Information Statement, as supplemented through the date hereof, has
not been amended or modified except as set forth in Exhibit L, and, to the
knowledge of FWRLP, no default or condition which, with the passage of time or
the giving of notice could become a default, exists on the part of any party
thereunder.
(d) Disclosure. The Confidential Information Statement, as
supplemented through the date hereof, and including the Appendices thereto, on
the date hereof, does not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) Financial Information. The financial statements of FWRLP
and the REIT (including the notes thereto) included in the Confidential
Information Statement, as supplemented through the date hereof, present fairly
the financial position of the respective entity or entities presented therein at
the respective dates indicated and the results of their operations for the
respective periods specified, and except as otherwise stated in any such
registration statement or periodic report, such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis.
(f) Issuance of Units. The FWRLP Partnership Agreement
provides, or prior to Closing will provide, for the issuance of the Units. The
Units to be issued in connection with the transactions herein contemplated have
been, or prior to their issuance will have been, duly authorized for issuance by
FWRLP to Contributor, and on the date of their issuance will be validly issued,
fully paid and non-assessable. The
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Units conform to the description thereof contained in the Confidential
Information Statement, as supplemented through the date hereof, and such
description conforms to the rights set forth in the FWRLP Partnership Agreement.
All issued and outstanding Units were issued in compliance with or in
transactions exempt from the registration provisions of applicable federal and
state securities laws. Any and all shares of Common Stock of the REIT
exchangeable for Units issued in connection with the transactions herein
contemplated will be duly authorized, validly issued, fully paid and
non-assessable. All issued and outstanding shares of Common Stock of the REIT
were issued in compliance with or in transactions exempt from the registration
provisions of applicable federal and state securities laws.
(g) Litigation. There is no action or proceeding pending or,
to the knowledge of FWRLP, threatened against FWRLP, the REIT or any subsidiary
before any court or administrative agency which would result in any material
adverse change in the business or financial condition of FWRLP, the REIT and
their subsidiaries, taken as a whole.
(h) Sale of the Property. Except in connection with a sale of
all or substantially all of FWRLP's assets or a merger or consolidation of
FWRLP, in no event shall FWRLP voluntarily sell, or permit the Company or any
affiliate of FWRLP to voluntarily sell, the Property (or the interests in the
Company) for a period of five (5) years following the Closing Date, unless FWRLP
indemnifies and agrees to hold harmless the Contributor from any adverse Federal
and state income tax consequences attributable to such sale. In the event of a
condemnation of a material part of the Property (within such five (5) year
period) FWRLP shall use reasonable efforts to reinvest, or cause the Company or
owner of the Property to reinvest, as the case may be, the condemnation proceeds
in such property or properties, and within such time periods, as are required by
the Internal Revenue Code to avoid Federal income tax being payable by
Contributor with respect to such condemnation proceeds. FWRLP recognizes that
the Contributor may incur adverse tax consequences in the event of a breach by
FWRLP of the covenant not to sell, or permit the sale of, the Property (or the
interests in the Company) as set forth above in this Section 8(h). In the event
of a breach by FWRLP of the covenant not to sell or permit the sale of the
Property (or the interests in the Company) as set forth above in this Section
8(h), FWRLP agrees that it shall pay to the Contributor liquidated damages in
the amount of $4,200,000, it being recognized that the actual amount of damages
sustained by the Contributor is not susceptible of a precise amount, and the
amount of liquidated damages shall compensate the Contributor for the damages
resulting from a breach by FWRLP; provided, however, that if the number of Units
held by Contributor (i.e., those Units received at Closing) at the time of
settlement of any such sale of the Property (or the interests in the Company) is
less than the number of Units issued to such Contributor at Closing, then the
foregoing amount of liquidated damages shall be reduced to an amount equal to
$4,200,000 multiplied by a fraction, the numerator of which is the aggregate
number of Units then held by Contributor and the denominator of which shall be
the aggregate number of Units issued to such Contributor at Closing.
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9. Conditions Precedent to Closing.
(a) It shall be a condition precedent of FWRLP's obligation to
make a full settlement hereunder that each and every one of the following
conditions shall exist on the Closing Date:
(i) Representations and Warranties. Contributor's
representations and warranties hereunder shall be true and
correct in all material respects the same manner and with the
same effect as though such representations and warranties had
been made on and as of the Closing.
(ii) Zoning. No proceedings shall have occurred or be
pending to change, redesignate or redefine the zoning
classification of the Property to a more restrictive
classification than presently exists on the date of FWRLP's
execution of this Agreement.
(iii) Title. Title to the Property shall be
marketable, good of record, and insurable by the Title Company
at standard rates or less, pursuant to a full coverage ALTA
Form-B (Rev. 1970 and 1984) owner's title insurance policy (or
an unconditional commitment therefor) without any exceptions
("Printed form" or otherwise) other than the Permitted
Exceptions, and in addition, without exception for mechanic's
or materialmen's lien arising from goods, labor or materials
provided to the Property prior to the Closing Date. The
"Permitted Exceptions" are:
(A) the lien of current real estate taxes and special assessments not
yet due and payable; and
(B) such other matters which are listed on Exhibit J attached hereto.
Notwithstanding anything to the contrary contained in this paragraph (B),
the Contributor, at or prior to Closing, shall cause to be satisfied and
released of record all mortgages, deeds of trust, financing statements,
judgments or liens, other than the Northern Mortgage, assignments of rents
and leases and financing statements associated with the Northern Loan.
(iv) Existing Mortgages. Contributor shall have
delivered to the Title Company such releases or other
instruments necessary to release of record and beneficially
any and all existing mortgages, deeds of trust, financing
statements or other security documents affecting the Property,
other than the Northern Loan (collectively, the "Existing
Mortgages").
(v) [Intentionally Omitted].
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(vi) Leasing Brokerage/Property Management
Agreements. The Contributor shall have terminated any and all
leasing brokerage agreements and property management
agreements with respect to the Property effective as of the
Closing. All responsibility for dealings with any such brokers
and agents, including the payment of any claims (if deemed
warranted by the Contributor), shall be the sole
responsibility of the Contributor. The Contributor agrees that
it will indemnify and hold FWRLP, its successors, assigns,
partners, agents and employees, harmless against any such
claims and/or losses which might be incurred by such
indemnitees or by the Contributor in connection with any
outstanding and/or contingent leasing commissions or fees or
management fees. Notwithstanding anything to the contrary, the
indemnity set forth in this subsection 9(a)(vi) shall survive
Closing without limitation.
(vii) Performance by Contributor. Contributor and the
Company shall have complied with and not be in material breach
of any of their covenants or obligations under this Agreement.
(viii) Tenant Estoppels. FWRLP shall have received
(a) a tenant estoppel letter in substantially the form
attached hereto as Exhibit F (or in such form as required by
the lease to which a specific tenant is subject) from, at a
minimum, tenants satisfying the requirements described on
Exhibit F-1, confirming the information set forth in the Rent
Schedule attached as Exhibit B hereto for such tenants and
containing no material changes from the Rent Schedule, and (b)
any subordination and attornment agreements required by the
mortgage lender of FWRLP from at least those tenants on
Exhibit F-1.
(ix) FWRT Board Approval. The Board of Directors of
FWRT shall have approved this Agreement and the transactions
contemplated hereby. In the event that the aforesaid condition
is not satisfied by the end of the Feasibility Period, FWRLP
may elect to terminate this Agreement by giving Contributor
written notice thereof within one (1) day after the end of the
Feasibility Period in which event the Deposit and any interest
thereon shall be returned to FWRLP and neither party shall
have any further obligations nor liabilities to the other.
(b) Failure of Condition. In the event of the failure by the
Closing Date of any condition precedent set forth above, then FWRLP, at its sole
election, may (a) terminate this Agreement, in which event the Deposit and any
interest thereon shall be returned to FWRLP and, neither party shall have any
further obligations or liabilities to the other; or (b) proceed to Closing which
shall be deemed a waiver of any such condition precedent; or (c) extend the
Closing Date for such reasonable time period as may be determined by FWRLP and
Contributor (but in no event for more than three (3)
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months from the Closing Date then in effect) in order to permit the satisfaction
of any condition precedent not so fulfilled.
(c) Condition Precedent to Contributor's Obligations. It shall
be a condition precedent of Contributor's obligation to make a full settlement
hereunder that (i) FWRLP's and REIT's representations and warranties hereunder
shall be true and correct in all material respects as of the Closing Date and
FWRLP will deliver a certification thereof to Contributor at Closing, (ii) the
substantive terms of the FWRLP Partnership Agreement, and the amendments thereto
(which shall exclude, among other things, issuance and/or exchange of any units
thereunder), as attached to the Confidential Information Statement set forth in
Exhibit L hereto, have not been modified prior to Closing in a manner materially
adverse to the interests of the Contributor as incoming additional limited
partner of FWRLP, and (iii) the Release described in Section 2(c)(iii) shall
have been issued.
10. Contributors' Deliveries. At the Closing the following documents,
each dated on the Closing Date, shall be delivered to FWRLP:
(a) a Contribution and Assumption Agreement ("Assignment") and
an Amendment to the Operating Agreement ("Amendment") and Articles of
Organization, in a recordable from, reasonably satisfactory to FWRLP and the
Contributor, setting forth the assignment by Contributor of its Membership
Interest or the Property, as the case may be, and its withdrawal from the
Company, if applicable, and the substitution of FWRLP and/or its designee(s) as
members of the Company, if applicable, which Amendment shall be executed and
acknowledged by the Contributor; at FWRLP's option, such Assignment and
Amendment may contain such other amendments of the Operating Agreement as shall
be determined by FWRLP, provided that the Contributor shall execute such
Assignment and Amendment solely for the purpose of (a) assigning its respective
Membership Interest to FWRLP or its designee(s), and (b) withdrawing from the
Company.
(b) a release from the Contributor releasing the Company and
FWRLP (and its designee(s)) as partners of the Company from any obligations and
liabilities with respect to the original formation of the Company, and any other
matter arising from business done, transactions entered into or events occurring
prior to the Closing Date (including, without limitation, liability arising from
any breach by the Contributor).
(c) An opinion of counsel for Contributor, in form and
substance reasonably acceptable to counsel for FWRLP, to the effect that:
(i) The Company is a duly organized limited liability
company and validly existing in good standing under the laws
of the State of Maryland:
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(ii) The execution and delivery of this Agreement and
all other agreements delivered in connection herewith or at
the Closing, the consummation of the transactions herein
contemplated, and compliance with the terms of this Agreement
and all other agreements delivered in connection herewith or
at the Closing will not conflict with, or result in a breach
of, any of the terms, conditions or provisions of, or
constitute a default under, any note, indenture, mortgage,
deed of trust, contract or other agreement or instrument to
which the Contributor or the Company is a party or by which
the Contributor or the Company is bound (and of which counsel
has knowledge) (other than the Northern Loan), or any law or
order, rule, regulation, writ, injunction or decree of any
government, governmental instrumentality or court, domestic or
foreign;
(iii) Contributor has complete and unrestricted power
pursuant to the Company's Operating Agreement to contribute,
transfer, assign and deliver to FWRLP and its designee(s) all
of the Membership Interests to be contributed and assigned
hereunder which are owned and /or controlled by it, and the
Assignment and the Amendment delivered pursuant to this
Section 10 are in form legally sufficient to vest in FWRLP and
its designee(s) good title to the Membership Interests
described therein; and
(iv) To the best of counsel's knowledge, there is no
litigation or investigation pending or threatened against the
Contributor, the Company or the Property, or any part thereof,
which might result in any material, adverse change pertaining
to the Property or the Company, or the operations thereof, or
which questions the validity of any action taken in, under or
in connection with any of the provisions of this Agreement.
(d) a schedule from the Contributor updating the Rent Schedule
for the Property and setting forth all arrearages in rents and all prepayments
of rents;
(e) originally executed Leases and Service Contracts and
copies of books, records, operating reports, files and other materials related
to the ownership, use and operation of the Property, to the extent that any
exist and are in the possession of the Contributor, which obligation shall
survive Closing;
(f) [Intentionally Omitted].
(g) an original letter executed by the Contributor advising
the tenants of the Property of the contribution of the Membership Interests to
FWRLP and directing that rents and other payments thereafter be sent to FWRLP or
as FWRLP may direct;
(h) possession of the Property from the Contributor in the
condition required by this Agreement, and the keys therefore;
-19-
(i) from each Contributor, the Certification of Non-foreign Status as
provided in Treas. Reg. 1.1445-2(b)(2)(iii)(B) or in any other form as may
be required by the Internal Revenue Code or the regulations issued
thereunder;
(j) such other items and instruments from the Contributor as
shall be required by the Title Company in connection with the issuance of its
title insurance policy to FWRLP pursuant to Section 9(a)(iii) (including
customary Contributor's or owner's affidavit), except that Contributor shall not
be obligated to undertake any financial obligation, indemnities, escrows or
guarantee in favor of the Title Company;
(k) any and all documents from the Contributor necessary to
release the Deposit from escrow with the Title Company and to have said Deposit
returned to FWRLP;
(l) any other documents required by this Agreement to be delivered by
Contributor; and
(m) An amendment to the Partnership Agreement of FWRLP, in a
form reasonably acceptable to FWRLP and Contributor, admitting the Contributor
as a limited partner(s) of FWRLP and issuing such Units as computed in
accordance with Section 2(a) hereof.
11. FWRLP's Performance. At the Closing, simultaneously with the
deliveries of Contributor pursuant to the provisions of Section 10 above, FWRLP
shall issue to Contributor the Units in the manner specified in Section 2 and
FWRLP and REIT shall execute and deliver those documents and take such other
actions required to be taken by FWRLP and REIT at Closing as required under this
Agreement, whereupon the Deposit, and any interest accrued thereon, shall be
returned to FWRLP by the Title Company, and Coopers & Xxxxxxx L.L.C. shall issue
a letter acknowledging that FWRLP will utilize the method described in Paragraph
20(f) on its tax returns.
12. Settlement Charges; Prorations and Adjustments. FWRLP shall pay for
the title examination, the title insurance premium, notary fees and other such
charges incident to Closing. Any real estate transfer and recording fees and
taxes and documentary stamps in connection with this transaction, if any, shall
be borne by FWRLP; provided, however, that the number of Units issued to
Contributor at the Closing under Section 2(a) hereof shall be reduced by an
amount equal to one-half (1/2) of the real estate transfer and recording fees
and taxes payable by FWRLP divided by the Unit Price. Although Contributor and
FWRLP believe that no real estate transfer or recording taxes will be due in
connection with the transactions contemplated hereby, if it is finally
determined that such taxes are due and payable in connection herewith or in
connection with the transfer of the Property by Contributor to the Company
through a series of deeds (the "Property Transfer") (but in such case only such
taxes for one transfer), then FWRLP shall pay all such taxes and Contributor
shall either (at FWRLP's election) (i) reimburse to FWRLP one-half (1/2) of such
sum paid by FWRLP, or (ii)
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return/relinquish to FWRLP the number of Units equal to one-half (1/2) of the
taxes paid by FWRLP divided by the Unit Price. The obligations under this
Section 12 shall survive Closing without limitation. FWRLP and Contributor shall
each pay its own legal fees related to the preparation of this Agreement and all
documents required to settle the transaction contemplated hereby. In addition to
the foregoing, at the Closing, the following adjustments and prorations shall be
computed as of the Closing Date, as if the transaction contemplated by this
Agreement was a sale of the Property by the Contributor to FWRLP:
(a) Taxes. Real estate and personal property taxes shall be
apportioned (based on the fiscal periods for which such taxes are assessed) as
of the Closing Date.
(b) Assessments. All special assessments and other similar
charges which have become a lien upon the Property or any part thereof on or
before the Closing Date and are due and payable in full on or prior to the
Closing Date, shall be brought current and paid in full by Contributor on or
prior to the Closing. All other special assessments or similar charges for the
1997 year shall be adjusted as of the Closing Date.
(c) Rent and Security Deposits. Rent for the month of , and
any month after, Closing collected by Contributor prior to Closing shall be
apportioned as of the Closing Date. If any tenant is in arrears in the payment
of rent on the Closing Date, rents received from such tenant after the Closing
shall be applied in the following order of priority: (a) first to the payment of
current rent then due; (b) second, to delinquent rent for any period after the
Closing Date; and (c) third to delinquent rent for any period prior to the
Closing Date. FWRLP shall either use reasonable efforts to collect (at no cost
to FWRLP), or if Contributor so elects shall assign to Contributor the right to
collect, arrearages in rents and Additional Rents due from tenants as of the
Closing Date. If rents or any portion thereof received by Contributor or FWRLP
after the Closing Date are payable to the other party by reason of this
allocation, the appropriate sum, less a proportionate share of any reasonable
attorneys' fee, costs and expenses of collection thereof, shall be promptly paid
to the other party, which obligation shall survive the Closing.
If any tenants are required to pay percentage rents, escalation
charges for real estate taxes, operating expenses, cost-of-living
adjustments or other charges of a similar nature ("Additional Rents") and
any Additional Rents are collected by FWRLP after the Closing which are
attributable in whole or in part to any period prior to the Closing, then
FWRLP shall promptly pay to Contributor its proportionate share thereof,
less a proportionate share of any reasonable attorneys' fees, costs and
expenses of collection thereof, and deliver to Contributor a statement
therefor, if and when the tenant paying the same has made all payments of
rents and Additional Rent then due to FWRLP pursuant to the tenant's Lease,
which obligation shall survive the Closing. Upon written request of
Contributor, FWRLP shall provide Contributor with the
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then current periodic report of the status of collection of such Additional
Rents from such tenants.
FWRLP shall be credited at Closing with all security deposits of
tenants of the Property.
(d) Distributions. The quarterly distributions payable to
Contributor on the Common Units for the first record date after any issuance to
Contributor shall be pro rated based upon the number of days within the quarter
occurring after such issuance to Contributor.
(e) Debt Service on the Northern Loan. The amount of interest
payable under the Northern Loan shall be apportioned as of the Closing Date. Any
escrows held by the Lender on behalf of the Contributor shall be credited to
Contributor at Closing.
(f) Miscellaneous. All other charges and fees customarily
prorated and adjusted in similar transactions, including utilities, insurance
premiums and charges for Service Contracts to be assumed by FWRLP, shall be
prorated as of the Closing Date. In the event that accurate prorations and other
adjustments cannot be made at Closing because current bills are not obtainable
or the amount to be adjusted is not yet ascertainable (as, for example, in the
case of utility bills) the parties shall prorate on the best available
information, subject to further adjustment promptly upon receipt of the final
xxxx or upon completion of final computations. To the extent that water
consumption or other utility charges may constitute a lien against the Property,
Contributor agrees that an appropriate amount (not to exceed two time the prior
period invoice) in respect of water consumption or other utility charges may be
held in escrow by the Title Company in connection with its issuance of a title
insurance policy to FWRLP, and shall be released promptly after delivery of
evidence to Title Company that such charges have been paid. Contributor shall
use its reasonable efforts to have all utility meters read on the Closing Date
so as to accurately determine its share of current utility bills.
(g) Immediately prior to the Closing, Contributor shall have
the right to cause the Company to withdraw from the Company's bank account(s)
and distribute to the Contributor an amount equal to all cash within such bank
account(s) as of 11:59 p.m. on the day immediately preceding the Closing Date.
The Company shall distribute and assign to Contributor the right to all accounts
receivable of the Company as of Closing.
(h) FWRLP agrees to reimburse Contributor for one-half (1/2)
of the legal fees incurred by Contributor in connection with the transfer of the
Property by Contributor to the Company through a series of deeds, but in no
event shall FWRLP's reimbursement to Contributor exceed $3,000.00.
-22-
13. Risk of Loss. The risk of loss or damage to the Property by fire or
other casualty until the Closing shall be borne by the Contributor. If prior to
Closing (i) condemnation proceedings are commenced against all or any portion of
the Property, or (ii) if the Property is damaged by fire or other casualty to
the extent that the cost of repairing such damage shall be Two Hundred Thousand
Dollars ($200,000.00) or more based on the good faith estimate of an independent
contractor selected by the Contributor and reasonably approved by FWRLP, or
(iii) if the Property is damaged by an uninsured risk, or (iv) if the Property
becomes subject to litigation which may deprive FWRLP of any material benefit to
which it would become entitled pursuant to this Agreement, then FWRLP shall have
the right, upon notice in writing to the Contributor delivered within thirty
(30) days after actual notice of such condemnation or fire or other casualty or
litigation, to terminate this Agreement, and thereupon the parties shall be
released and discharged from any further obligations to each other and the
Deposit shall be refunded to FWRLP. If FWRLP does not elect to terminate this
Agreement or in the event of fire or other casualty not giving rise to a right
to terminate this Agreement by FWRLP, FWRLP shall be entitled to an assignment
of all of the proceeds of fire or other casualty insurance proceeds and the rent
insurance proceeds payable with respect to the period after Closing or of the
condemnation award, as the case may be (i.e., such proceeds shall remain in the
Company for the benefit of FWRLP, if FWRLP acquires the Membership Interests),
and Contributor shall have no obligation to repair or restore the Property;
provided, however, that the Gross Consideration shall be reduced (based on the
Unit Price per Unit) by an amount equal to the sum of (a) the "deductible"
applied by Contributor's insurance policy, or (c) if Contributor is
self-insured, the cost of repairing such damage. FWRLP shall have the right to
participate in the negotiation and settlement of any casualty or
condemnation-related claim if FWRLP does not elect to terminate this Agreement.
14. Inspection of Property.
(a) FWRLP's Right of Inspection. Subject to the rights of
tenants under the Leases, FWRLP shall have the right, at its own risk, cost and
expense, at any time or times prior to Closing, to enter, or cause its agents or
representatives to enter, upon the Property for the purpose of making surveys,
or any tests, investigations and/or studies relating to the Property or FWRLP's
intended acquisition thereof which FWRLP deems appropriate, in its sole
discretion, during reasonable hours and upon reasonable notice to Contributor.
FWRLP shall further have complete access to all documentation, agreements and
other information in the possession of Contributor related to the ownership, use
and operation of the Property, to the extent it is readily available to
Contributor, and shall have the right to make copies of same. FWRLP shall not
have the right during the Feasibility Period to contact tenants without the
prior consent of Contributor. FWRLP agrees to repair any damage to the Property
that may be caused by its inspections and to indemnify and defend Contributor
and hold Contributor harmless against any injury, loss or damage suffered upon
the Property as a result of such inspections.
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(b) Feasibility Period. Any other provisions of this Agreement
to the contrary notwithstanding, FWRLP may cause at FWRLP's sole cost and
expense, such boring, engineering, economic, water, sanitary and storm sewer,
utilities, topographic, structural, environmental and other tests,
investigations, market studies and other studies as FWRLP shall elect, subject
to the rights of tenants under the Leases. FWRLP agrees to use all reasonable
efforts to minimize disruption to business operations within the Property during
the course of any entries thereon. In the event that any of the tests,
investigations, market studies and other studies indicate, in FWRLP's sole
discretion, that FWRLP's plans for the Property would not be feasible for any
reason, then FWRLP shall have the right, at its sole election on or before the
date which is forty-five (45) days after the Acceptance Date (such period herein
referred to as the "Feasibility Period"), to terminate this Agreement by giving
written notice thereof to the Contributor in which event this Agreement shall
terminate, the Deposit shall be returned to FWRLP and neither party shall have
any further liabilities or obligations to each other. If FWRLP does not
terminate this Agreement before the end of the Feasibility Period as aforesaid,
this contingency shall automatically lapse.
(c) Audit. Contributor hereby agrees to allow books and
records related to the Property to be audited (at FWRLP's sole expense) by an
independent, certified public accounting firm selected by FWRLP, and Contributor
will cooperate and cause its employees and other agents to cooperate in such
auditing process. FWRLP shall provide Contributor with prior notice of such
audit.
15. Indemnifications.
(a) Indemnification by Contributor under Section 5.
Contributor for such Contributor only, and for no other Contributor, hereby
indemnifies and agrees to defend and hold harmless FWRLP and its partners and
subsidiaries and any officer, director, employee, agent of any of them, and
their respective successors and assigns from and against any and all claims,
expenses, costs, damages, losses and liabilities (including reasonable
attorneys' fees) which may be asserted against or suffered by any indemnitee,
the Company or the Property, or any part thereof, whether before or after the
Closing Date, as a result of, on account of or arising from any breach of any
representation, warranty, covenant or agreement on the part of such Contributor
set forth in Section 5 herein or in any instrument or document related thereto
delivered pursuant to this Agreement. The indemnification set forth in this
Section 15(a) shall survive Closing without limitation.
(b) Indemnification by the Contributor. Except for the
indemnifications set forth in Section 15(a) above, Contributor hereby
indemnifies and agrees to defend and hold harmless FWRLP and its partners and
subsidiaries and any officer, director, employee, agent of any of them, and
their respective successors and assigns from and against any and all claims,
expenses, costs, damages, losses and liabilities (including reasonable
attorneys' fees) which may at any time be asserted against or suffered by, any
indemnitee, the Company or the Property, or any part thereof, whether before or
after the Closing Date, as a result of, on account of or arising from (i) any
breach of any
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representation, warranty, covenant or agreement on the part of the Contributor
made herein or in any document delivered by the Contributor pursuant to Section
10 of this Agreement, and/or (ii) any obligation, claims, suit, liability,
contract, agreement, debt or encumbrance or other occurrence (other than
obligations under the Northern Loan accruing after the Closing, obligations
accruing after the Closing Date under the Leases and Service Contracts, items
adjusted as of the Closing Date under Section 12 above, other obligations,
claims or agreements expressly assumed by FWRLP in writing, and subject to
Section 12, the transfer and recordation tax in connection with the Property
transfer and any other charges associated therewith) created, arising or
accruing prior to the Closing Date, regardless of when asserted, and relating to
the Company, or the Property, or its operations provided such claim is derived
from an occurrence or breach which took place prior to the Closing Date and to
the extent that such claim is not within the scope of any insurance agreement in
favor of the Company. Claims within the scope of the indemnity set forth in
clause (ii) shall include, without limitation, any and all liabilities for
federal and state income and other taxes due and payable with respect to any
period (or portion thereof) prior to the Closing Date (other than transfer and
recordation taxes which are covered under Section 12). Any indemnification of
FWRLP or the Company or other indemnitee under this Section 15(b) shall survive
Closing for a period of three (3) years (other than indemnification for breach
of representations or warranties pursuant to clause (i) of the first sentence of
this Section 15(b), which are subject to a survival period described in Section
6 of this Agreement, but shall cease and expire with respect to any claim not
raised by FWRLP, by written notice to Contributor, within such limited survival
period).
(c) Indemnification by FWRLP. FWRLP hereby indemnifies and
agrees to defend and hold harmless Contributor and its respective, heirs,
personal representatives, successors and assigns from and against any and all
claims, expenses, costs, damages, losses and liabilities (including reasonable
attorneys' fees) which may at any time be asserted against or suffered by
Contributor as a result of, on account of or arising from (i) any breach of any
representation, warranty, covenant or agreement on the part of FWRLP or the REIT
made herein or in any instrument or document delivered pursuant to this
Agreement, and/or (ii) any obligation, claims, suit, liability, contract,
agreement, debt or encumbrance or other occurrence created, arising or accruing
after the Closing Date and relating to the Property, the Company or its
operations. The foregoing obligations set forth in this Section 15(c) shall
survive Closing without time limitation.
16. Brokerage Commission. Contributor and FWRLP represent and warrant
to each other that no brokerage fee or real estate commission is or shall be due
or owing in connection with this transaction other than that payable to First
Capital Realty, Inc., which shall be payable by FWRLP at the Closing pursuant to
a separate agreement. Contributor and FWRLP hereby indemnify and hold the other
harmless from any and all claims of any other broker or agent so claiming based
on action or alleged action of the other.
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17. Default Provisions; Remedies.
(a) FWRLP's Default. If FWRLP fails to consummate the
Contribution contemplated herein when required to do so pursuant to the
provisions hereof, then the Title Company shall deliver the Deposit to
Contributor as full and complete liquidated damages, and as the exclusive and
sole right and remedy of Contributor, whereupon this Agreement shall terminate
and neither party shall have any further obligations or liabilities to any other
party.
(b) Contributor Default. Except for any breaches waived in
writing by FWRLP, if Contributor has breached any of their covenants or
obligations under this Agreement or have failed, refused or are unable to
consummate the Contribution contemplated herein by the Closing Date or if any of
the representations and warranties made by Contributor under this Agreement
shall be inaccurate or incorrect in any material respect, then FWRLP shall be
entitled, as FWRLP's sole and exclusive right and remedy, to (i) waive such
breach, default or failure and proceed to Closing without abatement of
consideration under Section 2(a), (ii) extend the Closing for such reasonable
time or times as may be necessary in order to enable Contributor to remedy such
breach, default or failure (not to exceed thirty (30) days), (iii) terminate
this Agreement and obtain the return of the Deposit, and/or (iv) pursue an
action for specific performance. In the event that FWRLP elects to pursue
specific performance and FWRLP prevails in such litigation, in addition to any
relief awarded to FWRLP, Contributor shall be obligated to pay all reasonable
legal fees, costs and expenses incurred by FWRLP.
(c) The provisions of Sections 17(a) and (b) above shall not
be applicable to any breach or default by a party occurring or first becoming
actually known to the other party after Closing, and, as to any said breach or
default, the non-defaulting party may exercise any and all remedies available at
law or in equity, subject, however, to any applicable limitations on survival
expressly provided for in this Agreement.
18. Registration Rights. Contributor and the REIT hereby agree to
execute at Closing the Registration Rights Agreement attached hereto as on
Exhibit K.
19. Miscellaneous Provisions.
(a) Completeness and Modification. This Agreement (together
with Exhibits A to R attached hereto), with respect to the transactions
contemplated herein, and it supersedes all prior discussions, understandings or
agreements between the parties. This Agreement shall not be modified or amended
except by an instrument in writing signed by all of the parties hereto.
(b) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors and
assigns.
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(c) Assignment. This Agreement shall not be assignable by
FWRLP without the consent of Contributor, provided that, notwithstanding
anything to the contrary contained in this Agreement, FWRLP shall be entitled to
transfer or, at Closing, cause the Company to issue a 1% limited Membership
Interest in the Company to the REIT or to an entity controlled by, controlling
or under common control with the FWRLP, as long as the Units are issued to
Contributor as required herein. This Agreement shall not be assignable by
Contributor.
(d) Waiver; Modification. Failure by FWRLP or Contributor to insist
upon or enforce any of its rights hereto shall not constitute a waiver or
modification thereof.
(e) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Maryland.
(f) Headings. The headings are herein used for convenience or
reference only and shall not be deemed to vary the content of this Agreement or
the covenants, agreements, representations and warranties herein set forth, or
the scope of any provision hereof.
(g) Continuing Documentation and Access. From and after
Closing, Contributor shall afford FWRLP reasonable access to any and all
information in their possession concerning the ownership, use and operation of
the Property (including the right to copy same at the expense of FWRLP) for
purposes of any tax examination or audit or other similar purpose, subject to
the agreements of the Contributor, the Company or FWRLP concerning
confidentiality set forth herein. FWRLP and the REIT agree and acknowledge that
the information provided to them by the Contributor or the Company regarding the
Property or the Company is confidential, and that they will not disclose such
information to any other person, other than to their employees, attorneys,
accountants and other consultants, or use such information for any purpose other
than the transaction described herein without the prior written consent of the
Contributor. If this Agreement is terminated or if the Contribution at the
Closing is not consummated, all information provided to FWRLP and the REIT, and
all copies thereof, shall be returned to the Contributor.
(h) Counterparts. To facilitate execution, this Agreement may
be executed in as many counterparts as may be required; it shall be sufficient
that the signature of, or on behalf of, each party, or that the signatures of
the persons required to bind any party, appear on one or more such counterparts.
All counterparts shall collectively constitute a single agreement.
(i) Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered by hand or
mailed by first-class registered or certified mail, return receipt requested,
postage prepaid or delivered by
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commercial courier, telecopy or overnight courier (e.g., Federal Express)
against receipt, to the addresses indicated below:
(i) if to FWRLP:
First Washington Realty Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
(ii) if to Contributor:
Castlewood Realty Company, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. XxXxxxx, Xx.
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Miles & Stockbridge, P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Such notice shall be deemed given on the date of receipt by
the addressee or the date receipt would have been effectuated if delivery were
not refused. Each party may designate a new address by written notice to the
other in accordance with this Section 19(i).
(j) [Intentionally Omitted].
(k) Further Assurances. Contributor and FWRLP agree to
execute, acknowledge and deliver any further agreements, documents or
instruments that are reasonably necessary or desirable to carry out the
transactions contemplated by this Agreement.
(l) Business Days. A "business day" shall be Mondays through
Fridays, less and expecting all legal holidays observed by the United States
Government or the Government of the State of Maryland. Any date specified in
this
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Agreement which does not fall on a business day shall be automatically extended
until the first business day after such date.
(m) Time of the Essence. Time is of the essence in the
performance of all obligations under this Agreement.
20. Tax Matters.
(a) FWRLP hereby agrees to send to the Contributor the
following information on an annual basis at least 30 days prior to the filing of
the tax return of FWRLP:
(i) the amount of the debt secured by the Property and the amount of
FWRLP's total non-recourse debit as of the end of the most recent fiscal
year;
(ii) the amount of nonrecourse debt allocated to Contributor;
(iii) the adjusted basis of the Property as of the end of the most
recent fiscal year; and
(iv) the projected taxable income or loss of FWRLP for such fiscal
year.
(b) Contributor, at its written election but with no
obligation to do so, may affirmatively make on an annual basis (a) a DRO
Election or (b) a Bottom Guaranty Election with respect to a mortgage loan on a
property acceptable to FWRLP in its sole discretion. Any such election shall be
made by notice delivered to FWRLP no later than the date on which the tax return
for FWRLP is filed for the fiscal year in question.
(c) A DRO Election shall state that if the Contributor has a
deficit balance in its capital account following the Liquidation of the
Contributor's interest in FWRLP or the Liquidation of FWRLP, as the case may be,
Contributor shall contribute to the capital of FWRLP, no later than the end of
the fiscal year during which the Contributor's interest in FWRLP is Liquidated
or during which FWRLP is Liquidated, as the case may be (or, if later, 90 days
after the date on which the Contributor's interest in FWRLP is Liquidated or on
which FWRLP is Liquidated, as the case may be) (the "Liquidation Date") an
amount of money equal to a designated portion of the deficit in the
Contributor's capital account. The term "Liquidation" shall have the meaning
given to it in Treas. Regs. Section 1.704.
(d) A Bottom Guaranty Election shall state that if FWRLP shall
be in default with respect to the mortgage loan securing the property of FWRLP
identified by FWRLP in Section 20(b) above, then the Contributor agrees to
contribute to the capital
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of FWRLP a designated portion of the principal balance of such mortgage loan
(the "Contribution Limit"); however, such contribution shall only occur if the
mortgage lender shall have exhausted all of its remedies against such property
in order to collect the amount owing the mortgage lender, and such Contribution
Limit shall be reduced on a dollar-for-dollar basis for every dollar received by
the mortgage lender from exercising its remedies. Any such contribution shall be
made by the Liquidation Date. For example, if the amount of the mortgage loan
were $10,000,000.00 and the amount of the Contribution Limit were $1,000,000.00,
the capital contribution would only be required if the property were sold in
foreclosure and the proceeds of sale were less than $1,000,000.00.
(e) FWRLP covenants that the principal balance of the mortgage
loan secured by the Property shall not be reduced below $2,400,000 (other than
scheduled amortization of the mortgage loan and principal curtailments of the
mortgage loan beyond FWRLP's reasonable control) and that the mortgage loan to
such extent shall remain "nonrecourse" for Federal income tax purposes, during
the period beginning on the Closing Date and ending five (5) years thereafter.
(f) FWRLP will use the "traditional" method under Section
704(c) of the Internal Revenue Code in connection with the contribution
herewith.
(g) FWRLP will depreciate the book basis and tax basis of the
Property over a 39-year life (as to the building component) and no depreciation
as to the land component.
(h) This Paragraph 20 shall survive the Closing.
21. Master Lease. FWRLP shall master lease to Contributor that certain
space now leased to Heritage Catering, subject to the current lease with
Heritage Catering, (i.e., Contributor will remain the landlord under the
existing Heritage Catering lease). The master lease will contain the terms set
forth on Exhibit R hereto and such other terms as are commonly included in such
a lease in the State of Maryland. Contributor and FWRLP shall negotiate in good
faith all of the terms of the master lease in order to complete the form of such
master lease prior to the end of the Feasibility Period.
22. Contribution of Property. If it is determined by Contributor that
the Property cannot be transferred to the Company immediately prior to Closing
without imposition of a real estate transfer and recordation tax, then the
parties hereby agree that in lieu of the Contributor causing the Property to be
transferred to the Company and the Company contributing the Membership Interests
to FWRLP, the Property will be contributed by deed directly to FWRLP in exchange
for Units and (1) all real estate transfer taxes and documentary stamps in
connection with such deed will be shared equally by Contributor and FWRLP at
Closing and (2) all provisions of this Agreement relating to the Company and to
the contribution of the Property to the Company and the subsequent contribution
of the Membership Interests to FWRLP shall be deleted and
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shall be deemed to refer to the contribution of the Property by deed by the
Contributor to FWRLP, if such items are not already covered by this Agreement,
and (3) there will be a special warranty deed, xxxx of sale and assignment and
assumption of leases, contracts or other agreements related to the Property
executed at Closing.
IN WITNESS WHEREOF, the parties hereto have executed this Contribution
Agreement as of the day and year first written above.
FWRLP:
FIRST WASHINGTON REALTY
LIMITED PARTNERSHIP
By: First Washington Realty Trust, Inc.,
ATTEST: Its general partner
/s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
[Assistant Secretary] Xxxxxxx X. Xxxxx
President
[Corporate Seal]
Date of execution:September 9, 1997
WITNESS: CONTRIBUTOR:
CASTLEWOOD REALTY COMPANY, INC.
/s/ By: /s/ Xxxxxx X. XxXxxxx, Xx.
Xxxxxx X. XxXxxxx, Xx.
President
Date of execution: , 1997
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First Washington Realty Trust, Inc. joins herein solely for the purpose
of making the representations, warranties and covenants contained in Sections
8(a), 8(b), 8(e), 8(f), 8(g), 11, 18 and 19(g) hereof.
FIRST WASHINGTON REALTY
WITNESS: TRUST, INC.
/s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
President
Date of execution:September 9, 1997
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ACKNOWLEDGEMENT BY TITLE COMPANY
The undersigned Title Company executes this Contribution Agreement
solely to acknowledge receipt of the Deposit pursuant to Paragraph 3 hereof and
to evidence its agreement to serve as escrow agent pursuant to the terms of the
foregoing Agreement.
WITNESS: COMMERCIAL SETTLEMENTS, INC.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Vice President
Date: November 18, 1997
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LIST OF EXHIBITS
EXHIBIT A. Legal Description of Land Recitals
EXHIBIT B. Leases and Rent Schedule Section 6(d)
EXHIBIT C. Service Contracts Section 6(e)
EXHIBIT D. Violations Section 6(c)
EXHIBIT E. Insurance List Section 6(g)
EXHIBIT F. Form of Tenant Estoppel Section 6(i)
EXHIBIT F-1. Tenant Estoppels Section 8(a)(viii)
EXHIBIT G. Litigation Section 6(k)
EXHIBIT H. Operating Statements and Budget Section 6(r)
EXHIBIT I. Personal Property Section 6(t)
EXHIBIT J. Permitted Exceptions Section 9(a)(iii)(B)
EXHIBIT K. Registration Rights Agreement Section 18
EXHIBIT L. Confidential Information Statement Section 8(c)
EXHIBIT M. [Intentionally Omitted]
EXHIBIT N. Mortgage Section 2(c)
EXHIBIT O. Note Section 2(c)
EXHIBIT P. Operating Agreement Section 6(a)
EXHIBIT Q. [Intentionally Omitted]
EXHIBIT R. Master Lease Terms Section 21
[Contributor and FWRLP to Attach Foregoing at Acceptance of this Agreement]
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