EXHIBIT 10.5
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ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS
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THIS ASSIGNMENT (this "Assignment") is made and entered into as of
the 25th day of August, 2003, by and between THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New Jersey corporation ("Assignor"), and AMLI
RESIDENTIAL PROPERTIES, L.P., a Delaware limited partnership ("Assignee").
RECITALS
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A. Assignor owns 80% of the membership interests, and Assignee
owns 20% of the membership interests, in Landmark on Spring Mill LLC, a
Delaware limited liability company (the "Company"), pursuant to that
certain Operating Agreement of Landmark on Spring Mill LLC dated as of
April 15, 1999 (the "Operating Agreement"; capitalized terms used herein
and not defined herein shall have the meanings given them in the Operating
Agreement).
B. The Company owns real property located in Washington Township,
Xxxxxxxx County, Indiana, upon which the Company owns, operates and manages
an apartment community known as Landmark on Spring Mill (the "Community").
C. Assignor desires to assign and Assignee desires to acquire all
of Assignor's right, title and interest in Assignor's membership interests
in the Company (the "Assigned Interests") and all interests, rights and
obligations under the Operating Agreement with respect to the Assigned
Interests only, as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing Recitals, and
the warranties and mutual covenants set forth herein, Assignor and Assignee
hereby agree as follows:
1. ASSIGNMENT OF ASSIGNED INTERESTS. Assignor hereby sells,
assigns, transfers, conveys and delivers to Assignee, free and clear from
any liens, encumbrances or defects of title, and Assignee hereby accepts,
acquires and takes assignment and delivery of, the Assigned Interests,
including, but not limited to, all right, title and interest in and to the
properties (real and personal), capital, cash flow distributions, profits
and losses of the Company relating or allocable to the Assigned Interests.
2. PURCHASE PRICE. In consideration of the sale,
assignment, transfer, conveyance and delivery of the Assigned Interests,
upon execution hereof Assignee shall pay to Assignor cash in the amount of
$30,000,000 (the "Purchase Price"). The Purchase Price, plus or minus, as
applicable, the amount of the estimated prorations determined in accordance
with Section 5(a) below and as set forth on Schedule A. shall be paid by
wire transfer to such account as shall be provided in writing by Assignor;
provided, however, that such payment shall be deposited to Assignor's
designated account no later than 11:00 a.m., Chicago Time, on the Effective
Date; and provided further, that if such payment is not received by
Assignor prior to 11 a.m., Chicago Time, on the Effective Date, the parties
shall recalculate the proration amounts pursuant to Section 5(a) as of the
day following the Effective Date, and such later date shall be the
"Effective Date" for purposes of this Assignment.
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3. EFFECTIVE DATE. The assignment herein made is effective
as of the date of this Assignment, as may be adjusted pursuant to Section 2
above (the "Effective Date").
4. CASH FLOW DISTRIBUTIONS. On or before the Effective
Date, all Operating Cash Flow and Extraordinary Cash Flow of the Company
for periods ending prior to the Effective Date and which have not
previously been distributed, shall be distributed to Assignor in accordance
with the Operating Agreement.
5. PRORATIONS.
(a) On the Effective Date, Assignor and Assignee shall agree
upon the estimated proration amounts determined in accordance with
Section 5(b), and such estimated proration amounts shall be, as
applicable, added to or deducted from, the Purchase Price as set
forth in Schedule A hereto.
(b) On or before October 31, 2003, and in accordance with
Sections 5(c) below, Assignor and Assignee shall agree upon final
proration amounts for the items set forth in Sections 5(b)(2),
5(b)(3) and 5(b)(4) below. As soon as practicable after final bills
for Taxes (as defined below) become available, but in no event later
than August 31, 2004, Assignor and Assignee shall agree upon the
final proration amounts for Taxes, as determined in accordance with
Section 5(b)(1) below. For purposes of making the prorations, the
Effective Date shall belong to Assignee and all prorations
hereinafter provided to be made as of the Effective Date shall each
be made as of the end of the day before the Effective Date. In each
such proration set forth below, the portion thereof applicable to
periods beginning as of the Effective Date shall be credited or
charged to Assignee and the portion thereof applicable to periods
ending immediately prior to the Effective Date shall be credited or
charged to Assignor. Assignor shall have reasonable access to, and
the right to inspect and audit, at its own cost and expense, the
Company's books to confirm the final prorations, and Assignee shall
cooperate, and shall cause the Company to cooperate, with Assignor in
good faith with respect to such inspections and audits.
1. TAXES AND ASSESSMENTS. General real estate taxes
and assessments imposed by governmental authority and any
assessments imposed by private covenant constituting a lien or
charge on the Community for all tax periods through and
including the then current calendar year or other current tax
period (collectively, "Taxes") not yet due and payable shall be
prorated, based upon the number of days in the applicable
period.
2. COLLECTED RENT. All collected rent and other
collected income (and any applicable state or local tax on
rent) under apartment leases in effect on the Effective Date
shall be prorated based upon the number of days in the month.
Uncollected rent and other income shall not be prorated;
provided, however, that rent collected after the Effective Date
which relates to periods prior to the Effective Date shall be
prorated. Assignee agrees to make all reasonable efforts to
collect, and to cause the Company to collect, any rents
applicable to the period prior to the Effective Date. Any
prepaid rents for the period on or after the Effective Date
shall be credited to Assignee.
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3. UTILITIES. Utilities, including water, sewer,
electric, and gas shall be prorated based upon usage of such
utilities, as shown by the last reading of meters prior to the
Effective Date. The Company shall endeavor to obtain meter
readings on the day before the Effective Date, and if such
readings are obtained, the proration of such items shall be
based upon such readings.
4. FEES AND CHARGES UNDER SERVICE CONTRACTS. Fees and
charges under contracts for the provision of services to the
Company based upon the periods to which such service contracts
relate (e.g., telephone, internet services, lawn maintenance,
cleaning, etc.) shall be prorated based upon the number of
days in the applicable period. Fees and charges for services
not in the nature of regular or periodic services (e.g.,
building repairs) shall not be prorated.
5. DEPOSITS. Nonrefundable deposits held by the
Company which have not yet been recognized as income by the
Company (i.e., amounts received in the current month) shall be
prorated based upon the number of days in the month. Items
already recognized as income by the Company in prior periods
shall not be prorated.
(c) After each of the final prorations is completed and
agreed upon by the parties, the final proration amounts shall be
reconciled with the estimated proration amounts that were added to or
deducted from the Purchase Price on the Effective Date pursuant to
Section 2. If as a result of such reconciliation: (i) amounts are
owed by Assignor to Assignee in excess of the estimated proration
amounts, then Assignor shall pay such amounts to Assignee; or (ii) if
amounts are owed by Assignee to Assignor in excess of the estimated
proration amounts, then Assignee shall pay such amounts to Assignor.
In either case, payment shall be made as soon as practicable (but in
no event later than 15 days) after such agreement is reached.
(d) With respect to the final proration of Taxes, in the
event Assignee shall decide to appeal a final tax xxxx with the
appropriate governmental agency, the parties shall nonetheless agree
upon the proration of such final tax xxxx and shall reconcile such
proration in accordance with Section 5(c) above. Thereafter,
notwithstanding anything to the contrary contained in this Section 5,
if such appeal results in a refund of Taxes paid by the Company, then
such refund shall be prorated as agreed upon by the parties, and
payment of Assignor's prorated portion of such refund shall be made
as soon as practicable (but in no event later than 15 days) after
such agreement is reached.
6. REPRESENTATIONS OF ASSIGNOR. Assignor hereby represents and
warrants to Assignee that:
(a) Assignor is duly organized and validly existing under the
laws of the state of its organization and has been duly authorized by
all necessary and appropriate action to enter into this Assignment
and to consummate the transactions contemplated hereby. This
Assignment is a valid and binding obligation of Assignor, enforceable
against Assignor in accordance with its terms, except insofar as
enforceability may be affected by bankruptcy, insolvency or similar
laws affecting creditor's rights generally and the availability of
any particular equitable remedy.
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(b) Assignor is the record and beneficial owner of all of the
Assigned Interests, free and clear of any lien, claim, option, call,
right of first refusal, charge, encumbrance, restriction on transfer
(other than any restriction under the Securities Act of 1933, as
amended, or state securities or "blue sky" laws) or other right of
any other party, except as expressly provided in the Operating
Agreement. The Assigned Interests represent all of Assignor's
ownership interest in the Company.
(c) Assignor's execution and delivery of this Assignment,
its performance of its obligations hereunder and its consummation and
the validity of the transactions contemplated hereby do not require
it to obtain any consent, approval or action of, or make any filing
with or give any notice to, any corporation, person or firm or any
public, governmental or regulatory body or judicial authority, which
has not previously been obtained.
(d) (i) Assignor meets the requirements of a "qualified
professional asset manager" as defined in Part V(a) of Prohibited
Transaction Exemption 84-14 granted by the U.S. Department of Labor
("PTE 84-14"); (ii) Assignor is entering into this Assignment on
behalf of an "investment fund" as described in Part V(b) of PTE
84-14; (iii) the terms of this Assignment have been negotiated on
behalf of the investment fund by the Assignor and the Assignor has
made the decision on behalf of the investment fund to enter into this
Assignment; (iv) the terms of this Assignment have been negotiated
and determined at arm's length, as such terms would be negotiated and
determined by unrelated parties; and (v) neither the Assignor nor any
affiliate (as defined in Part V(d) of PTE 84-14) thereof, nor any
owner, direct or indirect, of a five percent or more interest in the
Assignor, has, within the previous ten years, been convicted or
released from imprisonment as a result of the crimes set forth in
Part I(g) of PTE 84-14.
7. REPRESENTATIONS OF ASSIGNEE. Assignee hereby represents and
warrants to Assignor that:
(a) Assignee is duly organized and validly existing under the
laws of the state of its organization and has been duly authorized by
all necessary and appropriate action to enter into this Assignment
and to consummate the transactions contemplated hereby. This
Assignment is a valid and binding obligation of Assignee, enforceable
against Assignee in accordance with its terms, except insofar as
enforceability may be affected by bankruptcy, insolvency or similar
laws affecting creditor's rights generally and the availability of
any particular equitable remedy.
(b) Assignee's execution and delivery of this Assignment, its
performance of its obligations hereunder and its consummation and the
validity of the transactions contemplated hereby do not require it to
obtain any consent, approval or action of, or make any filing with or
give any notice to, any corporation, person or firm or any public,
governmental or regulatory body or judicial authority, which has
not previously been obtained.
(c) Neither Assignee nor any of its affiliates (within the
meaning of Part V(c) of PTE 84-14) has, or during the immediately
preceding year has exercised, the authority to appoint or terminate
Assignor as investment manager of any assets of the employee benefit
plans whose assets are held by Assignor or to negotiate the terms of
any management agreement with Assignor on behalf of any such plan.
(d) The transaction contemplated by this Assignment is not
specifically excluded by Part I(b) of PTE 84-14.
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(e) Assignee is not a related party of Assignor (as defined
in V(h) of PTE 84-14).
(f) The terms of this Assignment have been negotiated and
determined at arm's length, as such terms would be negotiated and
determined by unrelated parties.
8. ASSUMPTION BY ASSIGNEE. Assignee hereby: (i) accepts the
Assigned Interests and all rights of Assignor under the Operating Agreement
in respect thereof; and (ii) assumes (A) all of the liabilities,
obligations and duties of Assignor and the Company as they relate to the
Assigned Interests accruing on or after the Effective Date and (B) all of
the liabilities, obligations and duties of Assignor and the Company under
the Operating Agreement in respect of the Assigned Interests, accruing on
or after the Effective Date, and agrees to be bound by the provisions
thereof with respect thereto. In no event shall the liabilities,
obligations or duties assumed by Assignee include any federal or state
income tax liabilities of Assignor relating to the Company or the Assigned
Interests incurred or accrued, whether known or unknown, as of the
Effective Date.
9. NO BROKERS. No broker, finder or similar intermediary has
acted for or on behalf of, or is entitled to any broker's, finder's or
similar fee or other commission from, Assignor or Assignee or any of their
respective Affiliates in connection with this Assignment or the
transactions contemplated hereby.
10. FURTHER ASSURANCES. Each party, at its sole cost and expense,
upon request of the other party, shall execute and deliver such further
instruments and do or cause to be done such further acts as may be
necessary to be done by such party to effectuate and confirm the assignment
of the Assigned Interests.
11. MUTUAL RELEASE.
(a) As of the Effective Date, except as explicitly provided
in this Assignment, Assignor, on its behalf and on behalf of each of
its Affiliates and each of their respective representatives, agents,
successors, assigns, officers, directors, members, managers,
employees and each of them (collectively, the "Assignor Parties")
hereby irrevocably waives, releases and discharges, absolutely and
forever, Assignee, the Company and each of their Affiliates from any
and all liabilities to Assignor or the other Assignor Parties of any
kind and nature whatsoever, fixed or contingent, known or unknown,
asserted or unasserted (including in respect of any rights of
contribution or indemnification), in respect of facts, events,
circumstances or conditions arising from or relating to the Company,
the Assigned Interests, the Community or the Operating Agreement.
(b) As of the Effective Date, except as explicitly provided
in this Assignment, each of Assignee and the Company, on its behalf
and on behalf of each of their respective Affiliates and each of
their respective representatives, agents, successors, assigns,
officers, directors, members, managers, employees and each of them
(collectively, the "Assignee Parties") hereby irrevocably waives,
releases and discharges, absolutely and forever, Assignor and each of
its Affiliates, from any and all liabilities to Assignee, the Company
or the other Assignee Parties of any kind and nature whatsoever,
fixed or contingent, known or unknown, asserted or unasserted
(including in respect of any rights of contribution or
indemnification), in respect of facts, events, circumstances or
conditions arising from or relating to the Company, the Assigned
Interests, the Community or the Operating Agreement.
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(c) Notwithstanding anything to the contrary in paragraphs
(a) and (b) above, nothing in this Section 11 shall be construed as a
waiver or release by or in favor of either party with respect to any
rights either of them may have pursuant to this Assignment.
12. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of Assignor and Assignee and the respective heirs,
legal representatives, successors and assigns of each.
13. SURVIVAL OF REPRESENTATIONS. The representations, warranties,
covenants, indemnities and agreements of the parties contained in this
Assignment are the only such terms made or relied upon by the parties and
shall survive the consummation of the transactions contemplated hereby.
14. MODIFICATION AND WAIVER. No supplement, modification, waiver
or termination of this Assignment or any provision hereof shall be binding
unless executed in writing by the parties to be bound thereby. No waiver of
any of the provisions of this Assignment shall constitute a waiver of any
other provision (whether or not similar), nor shall such waiver constitute
a continuing waiver unless otherwise expressly provided.
15. GOVERNING LAW. This Assignment shall be construed and enforced
in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within said state.
16. RECOURSE TO AMLI. ANYTHING CONTAINED HEREIN TO THE CONTRARY
NOTWITHSTANDING, NO PERSONAL LIABILITY OR PERSONAL DEFICIENCY JUDGMENT
SHALL BE ASSERTED OR ENFORCED AGAINST ANY PARTNERS OF ASSIGNEE, AGAINST THE
TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SHAREHOLDERS OR PRINCIPALS
OF SUCH PARTNERS, OR AGAINST THE ASSETS OF ANY SUCH PARTES, FOR PAYMENT OF
ANY AMOUNT HEREUNDER OR FOR OBSERVANCE OR PERFORMANCE OF ANY OF THE
OBLIGATIONS OF ASSIGNEE OR THE COMPANY. NOTHING CONTAINED ABOVE SHALL LIMIT
THE REMEDIES AGAINST ANY PERSON FOR SUCH PERSON'S FRAUD OR INTENTIONAL
MISCONDUCT, IN WHICH EVENT SUCH REMEDIES SHALL BE DETERMINED BY APPLICABLE
LAW.
17. TAX MATTERS. On the Effective Date, there shall be an interim
closing of the Company's books and all items of the Company's Profits and
Losses for the current fiscal year up to (but not including) the Effective
Date shall be allocated to Assignor and Assignee in accordance with the
Operating Agreement. Assignee shall cause the Company to prepare the tax
return of the Company for the portion of the current fiscal year up to (but
not including) the Effective Date (the "Termination Tax Return") as a
result of the termination of the Company for tax purposes under Section
708(b)(l)(B) of the Internal Revenue Code of 1986, as amended. Assignee
shall provide Assignor with a copy of the Termination Tax Return for
Assignee's review and approval (which shall not be unreasonably withheld or
delayed) prior to filing such return with the Internal Revenue Service.
Assignor and Assignee shall each file all required federal, state and local
income tax returns and related returns and reports in a manner consistent
with the foregoing and as required by law. Assignee hereby waives its right
to indemnification under Section 10.1(c) of the Operating Agreement with
respect to the transfer of the Assigned Interests contemplated by this
Assignment.
18. OPERATING AGREEMENT PROVISIONS. Assignor and Assignee and
agree that the assignment of the Assigned Interests contemplated by this
Assignment is not pursuant to Section 10.3, 10.4 or 10.5(d) of the
Operating Agreement, and that the provisions of Section 10.7 of the
Operating Agreement shall not apply to the assignment of the Assigned
Interests. With respect to the assignment of the Assigned Interests, in the
event of any inconsistency or conflict between the terms of the Operating
Agreement and the express terms of this Assignment, the terms of this
Assignment shall control.
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19. INDEMNIFICATION.
(a) Assignee shall indemnify, defend and hold Assignor
harmless for, from and against any and all actions, causes of action
or suits brought against it by third parties (each, a "Third Party
Claim") for liabilities, losses, costs, damages and expenses,
including, without limitation, reasonable attorneys fees and other
reasonable costs incurred in the investigation, defense and
settlement of the matter (collectively, the "Damages") arising from
such Third Party Claim, suffered or incurred by Assignor in respect
of any facts, events, circumstances or conditions occurring, arising
from or relating to the Company, the Assigned Interests, the
Community or the Operating Agreement, except to the extent such
Damages are caused by the gross negligence, willful misconduct or
fraud of Assignor.
(b) Assignor shall notify Assignee in writing of a Third
Party Claim as promptly as practicable; provided, that the failure of
Assignor to give notice shall not relieve Assignee of its obligations
under this Section 19 except to the extent (if any) that Assignee
shall have been prejudiced thereby. Assignee may, at its election and
own expense, upon notice to Assignor, assume the defense thereof. If
Assignee assumes such defense, Assignor shall have the right (but not
the obligation) to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel employed by
Assignee. If Assignee assumes such defense, Assignor agrees to give
Assignee full authority to defend the Third Party Claim; provided,
however, that Assignee shall have no authority to enter into any
settlement without Assignor's express prior written consent. Whether
or not Assignee chooses to defend or prosecute any such Third Party
Claim, each of the parties hereto shall cooperate in the defense or
prosecution thereof.
20. DISCLAIMER. Assignor has not made, and Assignee acknowledges
that Assignor has not made, any warranty or representation, express or
implied, written or oral, statutory or otherwise concerning or relating to
the Company or Community, including, but not limited to, the following: (i)
the condition of title to the Community; (ii) the nature, physical
condition, safety or other aspect of the Community or any component
thereof, including without limitation, plumbing, sewer, heating,
ventilation, electrical systems, roofing, air conditioning, foundations,
soils and geology; (iii) the income or expense as generated, paid or
incurred in connection with the Community or Company, or other economic
status of the Community or the Company; (iv) the accuracy of any
statements, calculations or conditions stated or set forth in any
documents, instruments, agreements to which Company is a party, which are
binding on Company or the Community, or which relate or are applicable to
the Community or Company, including, but not limited to, title policies,
surveys, floor plans, leases, service contracts, vendor agreements,
reports, environmental assessments, soils reports, rent rolls, pro formas,
revenue and expense projections and other Company and Community books and
records (the "Company Materials"); (v) the suitability of the Community for
any intended use, including, without limitations, as depicted on the
Company Materials; (vi) the dimensions of the Community or lot size; (vii)
the status or compliance of the Company or Community with any of the
Company Materials; (viii) the status of and compliance with the current
zoning or governmental approvals of the Community; (ix) the compliance of
the Company with any federal, state or local laws, ordinances, statutes,
rules and regulations; (x) the existence or absence of Hazardous Materials
(as defined below) or mold or other microbial agent or matter in, on,
about, under or affecting the Community; (xi) the compliance of the
Community with Hazardous Waste Laws (as defined below) or any other
federal, state or local laws, ordinances, statutes, rules or regulations
including, without limitation the Fair Housing Act Amendments of 1988 and
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the Americans with Disabilities Act; or (xii) the merchantability,
habitability or fitness of the Community or any portion thereof for any
particular purpose. The term "Hazardous Materials" shall mean any
substance, chemical, waste or material that is or becomes regulated by any
federal, state or local governmental authority because of its toxicity,
infectiousness, radioactivity, explosiveness, ignitability, corrosiveness
or reactivity including, without limitation, those substances regulated by
any hazardous waste laws. For purposes of this agreement, "Hazardous
Materials Laws" means any local, federal or state statute, ordinance, code,
law, rule or regulation relating to environmental contamination, petroleum
products, asbestos and pollutants. As a result. Assignee is acquiring the
Assigned Interests with the understanding that the Community and other
assets of the Company are in their "AS IS," "WHERE IS" and "WITH ALL
FAULTS" condition.
21. ATTORNEYS FEES. If any suit is brought by either party to this
Assignment against the other regarding the subject matter hereof, the
prevailing party shall be entitled to recover, in addition to any other
relief granted, reasonable attorneys fees and expenses of litigation.
22. ENTIRE AGREEMENT. This Assignment contains all of the
understandings and agreements of whatsoever kind and nature existing
between Assignor and Assignee with respect to the subject matter hereof,
and any and all other prior agreements between the parties with respect to
such subject matter are hereby superseded.
23. HEADINGS. All headings used herein are inserted for
convenience and ease of reference only and shall not be considered in the
construction or interpretation of any provision of this Assignment.
24. SEVERABILITY. If any provisions of this Assignment shall be
held by a court of competent jurisdiction to be contrary to law or public
policy, or otherwise unenforceable, the remaining provisions shall remain
in full force and effect and a court of competent jurisdiction shall supply
a provision or provisions to replace the affected provision(s) which most
closely approximates the original intent of the parties.
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IN WITNESS WHEREOF, this Assignment is executed as of the day and
year first above written.
ASSIGNOR:
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THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ASSIGNEE:
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AMLI RESIDENTIAL PROPERTIES, L.P.
By: AMLI Residential Properties Trust,
Its general member
By: AMLI Residential Properties Trust,
Its general partner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Senior Vice President
For purposes of Section 11(b) only:
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LANDMARK ON SPRING MILL LLC
By: The Prudential Insurance Company of America,
A member
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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SCHEDULE A
Calculation of Purchase Price
Company Value $30,000,000.00
Assignor's economic interest (1) 100%
Purchase Price for Assignor's membership interest $30,000,000.00
LESS: Assignor's estimated pro rata share of the
Company's income and expenses as of
the Effective Date determined in accordance
with Section 5(a) of the Assignment $ 669,476.96
Net cash amount to be paid to Assignor by
Assignee on the Effective Date $29,330,523.04
(1) Assignor's percentage interest equals 80%.
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