EXHIBIT 10.48
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT is made and entered as the 21st day of
October, 1996, by and between (I) CONTINENTAL REALTY INVESTORS CORP., JHP
DEVELOPMENT COMPANY, INC., J. ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇
▇▇▇▇▇ TRUSTEE for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ TRUSTEE for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ TRUSTEE for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, TRIPEC ASSOCIATES, L.P., ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and JHJ INVESTMENT LIMITED PARTNERSHIP, who are (or will be as of the
Closing) all of the general and limited partners (collectively, the "Partners")
of ▇▇▇▇▇▇▇▇ Limited Partnership, a Maryland limited partnership (the
"Partnership") (the Partners sometimes hereinafter referred to collectively as
"Contributors" and Continental Realty Investors Corp. and JHP Development
Company, Inc. are hereinafter referred to collectively as the "General
Partners"), 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 Partners own, or will own as of the Closing, all of the
partnership interests (the "Partnership Interests") of the Partnership, and
WHEREAS, the Partnership is the record and beneficial owner of that
certain parcel of real property containing approximately 9.596 acres of land as
more particularly described on Exhibit A hereto (collectively, the "Land"),
together with the shopping center known as ▇▇▇▇▇▇▇▇ Shopping Center located in
Millersville, Maryland, and containing approximately 91,000 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");
and
WHEREAS, Contributors and FWRLP desire to enter into this Agreement
relating to the contribution by certain Contributors to FWRLP of their
Partnership Interests in exchange for certain interests in FWRLP and by other
contributors of their Partnership Interests in exchange for cash.
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, Contributors and FWRLP agree to the contribution by Contributors to
FWRLP (the "Contribution") of all of the Partnership Interests.
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2. Consideration.
(a) In consideration of the Contribution of the Partnership
Interests, FWRLP shall pay cash and issue common partnership units of FWRLP (the
"Units") in an aggregate amount calculated as follows: Nine Million Dollars
($9,000,000.00) less the outstanding and unpaid principal balance of the Crown
Life Loan (as defined below) at the Closing ,with the number of Units determined
by dividing the consideration payable to the Contributors receiving Units by a
price per Unit (the "Unit Price") equal to $21.50, rounded to the nearest one
(1). FWRLP will pay the cash and issue the Units to the Contributors in
accordance with the schedule set forth as Exhibit Q attached hereto.
(b) At Closing, the Partnership Interests shall be contributed
to FWRLP with the Property then being subject to the indebtedness, lien and
operation of the Crown Life 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 Crown Life Insurance Company, as secured party (the "Lender"),
which Mortgage secures an original principal indebtness of $7,900,000.00 with
interest thereon payable over the term thereof (which ends on August 1, 1999) at
a fixed interest rate of 10.25% 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
"Crown Life Loan." The Crown Life Loan requires equal monthly installments of
principal and interest in the amount of the $70,457.00 per month. The
outstanding principal balance under the Crown Life Loan as of the date hereof is
approximately $7,770,000.00. 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 Partnership
Interests and such modifications to the Loan as FWRLP shall determine are
necessary, (ii) confirming that the Crown Life 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 Crown Life Loan. At Closing, the General Partners shall execute an
estoppel certificate in favor of FWRLP certifying that, to the best knowledge of
the General Partners, there is no default, or event of default which with notice
or lapse of time, or both, would constitute a default under the Crown Life Loan.
The General Partners 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 charged by the Lender
in connection with such consents. 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),
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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 Contributors,
whereupon the Deposit, together with interest thereon, shall be returned to
Contributors 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 the General Partners from all obligations and
liabilities under the Crown Life Loan pursuant to a release document(s)
reasonably acceptable to the General Partners.
(d) The Contributors and FWRLP will settle any pro rations and
closing adjustments as provided in this Agreement as follows: (i) if
Contributors owe 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 Contributors, 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. Contributors acknowledge
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 Partnership Interests to FWRLP by the Contributors who
receive Units 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 Partnership Interests to FWRLP will
terminate the Partnership for federal income tax purposes, FWRLP agrees that the
Contributors shall have the right and obligation to file final tax returns for
the Partnership as of the Closing Date.
3. Deposit.
(a) Within two (2) business days after the date of delivery to
FWRLP of an original of this Agreement executed by Contributors together with
completed Exhibits hereto (the date of such delivery by Contributors 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
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payable to the Commercial Settlements, Inc., ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Title Company").
(b) Within two (2) business days after the end of the
Feasibility Period (as defined in Section 14(b)), Purchaser shall deliver to the
Title Company, as escrow agent, an additional deposit (the "Additional Deposit")
of Fifty Thousand Dollars ($50,000.00) by check payable to the Title Company.
(c) The Initial Deposit and Additional Deposit and all accrued
interest thereon are hereinafter referred to collectively as the "Deposit." 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 of
the General Partners or FWRLP provides Title Company with a certification (a
copy of which shall be delivered contemporaneously to the other party) that the
Contributors 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 Contributors shall
be made by certified check payable to the General Partners 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 General Partners 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.
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
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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. The Closing shall take place at the
offices of First Washington Realty Limited Partnership, ▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may mutually
agreed upon by Contributors and
FWRLP.
5. Representations and Warranties of Contributors. In order to induce
FWRLP to enter into this Agreement and to issue the Units in consideration for
the Partnership Interests, each Contributor for such Contributor only and for no
other 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. Such Contributor has the rights, power and
authority to enter into this Agreement and to contribute its Partnership
Interests in accordance with the terms and conditions of this Agreement. Except
for the consents required under the Crown Life Loan, no consents of any persons
other than those executing this Agreement as a 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 such Contributor, enforceable against such 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 Crown Life 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
Crown Life 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. Such Contributor owns, or will own
as of the Closing, the Partnership Interest owned by such Contributor, as set
forth in Exhibit P hereto, free and clear of all liens, charges, encumbrances,
restrictive agreements and assessments other than the provisions of the
Partnership Agreement (J. ▇▇▇▇ ▇▇▇▇▇▇▇▇ will own as of the Closing the
Partnership Interest presently owned by the Trust U/A ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ dated
June 24, 1974 (Trust 112) free and clear of such liens, charges, etc.) Upon the
contribution of such Contributor's Partnership Interest 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 Partnership Agreement. Such Contributor hereby
waives, with respect to the contribution contemplated by this Agreement, any
"right of refusal" or other restriction on transfer set forth in the Partnership
Agreement.
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There are no outstanding options, contracts, calls, commitments or demands of
any nature relating to the Partnership Interest of such Contributor, except as
set forth in the Partnership Agreement.
(d) Securities Law Matters.
(i) Such Contributor who shall receive the Units 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;
(vii) Prior to the issuance of the Units, such
Contributor will execute all such other documents and instruments as may be
reasonably necessary to
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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 the General Partners. In order to
induce FWRLP to enter into this Agreement and to issue the Units in
consideration for the Partnership Interests, the General Partners, jointly and
severally, hereby make 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. The Partnership is a limited partnership duly
organized and in good standing under the laws of the State of Maryland. The copy
of the Partnership' s Partnership Agreement and all Amendments thereto
(collectively, the "Partnership Agreement") including all Certificates of
Limited Partnership and all Amendments thereto and the list of all the Partners
along with their individual Partnership Interests, attached hereto an Exhibit P
, is a true, correct and complete copy thereof. 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. The Partnership is the sole owner of fee simple
title to the Property.
(c) Compliance with Existing Laws. To the best of the General
Partners' knowledge and except as set forth on Exhibit D attached hereto, (i)
the Partnership 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 Partnership possesses 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 Partnership, and the requisite
certificates of the fire marshalls or board of fire underwriters have
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been issued for the Property, if applicable. The Property is zoned C-3. To the
best of the General Partners' 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 General Partners' 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 General Partners' 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 General Partners' knowledge,
the Partnership 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 Partnership and any tenant
has been completed by the Partnership, 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 Partnership 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 General
Partners' knowledge, no tenant is in default under its Lease,
except as indicated in Exhibit B hereto;
(ix) no action or proceeding instituted against the
Partnership by any tenant is presently pending in any court;
and
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(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 General Partners have delivered true and
correct copies of tax bills issued by any applicable federal, state or local
governmental authority to the Partnership 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 General
Partners shall maintain in full force and effect all such policies until the
Closing Date, and shall cause the Partnership's 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, subject to normal wear and tear and
damage by fire or other casualty and the effect of condemnation (subject to
Section 13 herein) excepted.
(i) Tenant Estoppels. The General Partners represent and
warrant that they shall use reasonable good faith efforts (without cost to the
Contributors or the Partnership) 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 General Partners'
knowledge, threatened against the Property or any part thereof, and neither the
Partnership nor the General Partners has made any commitments to or received any
written notice, of the desire of
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any public authority or 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 General Partners' knowledge,
threatened against the Partnership, including administrative actions or orders
against the Partnership 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 Partnerships' 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 Crown Life 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 Partnership is a party or by
which the Partnership or the Property is bound, (ii) subject to the approval
required under the Crown Life Loan, violate any restriction, requirement,
covenant or condition to which the Partnership is subject or by which the
Partnership or the Property is bound, or (iii) result in the cancellation of any
contract or lease pertaining to the Property. The representations and warranties
set forth in this Section 6(l) shall survive Closing without being subject to
the one year limitation.
(m) Intentionally Omitted.
(n) Separate Tax Lot and Subdivision. To the best of the
General Partners' knowledge, the Land is the subject of a separate subdivision,
and the Land is assessed for tax purposes as a separate and distinct parcel.
(o) Hazardous Waste. The General Partners have no 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 General Partners'
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 General Partners' knowledge, the Building is totally free of friable
asbestos requiring remediation.
(p) Certificates of Occupancy. The Partnership will not amend
any certificates of occupancy for the Property and will maintain them in full
force and effect to the extent that the Partnership is responsible for them. .
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(q) Licenses and Permits. The General Partners have received
no notice, nor have any knowledge, that the Partnership 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 1994 and 1995. Also
attached as Exhibit H is a copy of the 1996 operating budget for the Property.
(s) Utilities. To the best of General Partners' 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 Partnership, if any, used in the management, maintenance and
operation of the Property (other than trade fixtures or personal property of
tenants).
(u) Leasing Commissions. A t 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 Partnership which FWRLP is taking the Partnership
Interests subject to under Section 2 (c) above, and (ii) any accrued liabilities
and obligations of the Partnership which are being adjusted at Closing pursuant
to Section 12 of this Agreement, the Partnership shall not have any liabilities
o r obligations, either accrued, absolute or contingent or otherwise, which will
not be paid or discharged on or before the Closing Date. In addition, the
Partnership has not received notice of any, and to the best of the knowledge of
the General Partners, there is, as of the date of execution of this Agreement,
no basis for any, claim against (or liability of ) the Partnership 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 Partnership is, and at
all times has been, properly treated as a partnership for Federal Income Tax
purposes, and not 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.
(x) Taxes. The Partnership has 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")
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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 Partnership 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 Partnership has no material liability for Taxes in
excess of the amounts so paid. All Taxes that the Partnership 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 Partnership's federal, state or
local returns for Taxes by the relevant taxing authorities have occurred, and no
material deficiencies for Taxes of the Partnership have been claimed, proposed
or assessed by any taxing or other governmental authority against the
Partnership. There are no pending or, to the best of knowledge of the
Contributors, threatened audits, investigations or claims for or relating to any
material additional liability to the Partnership 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 General Partners or their 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 Partnership. 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 General Partners Pending Closing. From and after the
date of this Agreement through the Closing Date, General Partners covenant and
agree as follows:
(a) Maintenance and Operation of Premises. The General
Partners 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 12) 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 12), be in substantially the same physical
condition on the Closing Date as on the date hereof.
(b) Licenses. The General Partners shall use their
commercially reasonable efforts to preserve in force all Licenses and to cause
those expiring to be renewed.
(c) Changes in Representations. The General Partners shall
notify FWRLP promptly, and FWRLP shall notify the General Partners 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, Contributors
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 General Partners during this
period, the General Partners 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 General Partners 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 General
Partners, FWRLP shall be deemed to have consented to such request. The General
Partners hereby further agree 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 General Partners
in violation of any restrictions contained in this Section 7(d). The General
Partners 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 Crown Life Loan. The General Partners
shall not, without FWRLP's prior written consent, (i) prepay, or permit the
Partnership to prepay, the Crown Life Loan, or (ii) modify or amend, or permit
the Partnership to modify or amend, any of the documents evidencing or securing
the Crown Life Loan or otherwise entered into in connection with the Crown Life
Loan. the General Partners shall make, or cause the Partnership to make, all
payments required to be made under the Crown Life Loan when due, shall perform,
or cause the Partnership to perform, all obligations under the Crown Life Loan
and shall keep, and cause the Partnership to keep, the Crown Life Loan free from
default.
8. Representations and Warranties of FWRLP. In order to induce
Contributors to enter into this Agreement and to contribute the Partnership
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 Contributors or the General Partners:
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(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 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
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issuance will have been, duly authorized for issuance by FWRLP to Contributors,
and on the date of their issuance will be validly issued, fully paid and
non-assessable. The 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 permit the Partnership to voluntarily sell the
Property for a period of five (5) years following the Closing Date, unless FWRLP
indemnifies and agrees to hold harmless the Contributors who receive Units 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, FWRLP shall
use reasonable efforts to cause the Partnership to reinvest 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 Contributors who received Units with respect to such condemnation proceeds.
FWRLP recognizes that the Contributors may incur adverse tax consequences in the
event of a breach by FWRLP of the covenant not to sell the Property as set forth
above in this Section 8(h). In the event of a breach by FWRLP of the covenant
not to sell the Property as set forth above in this Section 8(h), FWRLP agrees
that it shall pay to the Contributors liquidated damages in the amount of
$1,500,000.00, it being recognized that the actual amount of damages sustained
by the Contributors is not susceptible of a precise amount, and the amount of
liquidated damages shall compensate the Contributors for the damages resulting
from a breach by FWRLP; provided, however, that if the number of Units held by
Contributors (i.e., those Units received at Closing) at the time of settlement
of any such sale of the Property is less than the number of Units issued to such
Contributors at Closing, then the foregoing amount of liquidated damages shall
be reduced to an amount equal to $1,500,000 multiplied by a fraction, the
numerator of which is the aggregate number of Units then held by Contributors
and the denominator of which shall be the aggregate number of Units issued to
such Contributors 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. Contributors'
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 General
Partners, 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 Crown Life Mortgage.
(iv) Existing Mortgages. Seller 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 Crown Life Loan (collectively, the "Existing Mortgages").
(v) [Intentionally Omitted].
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(vi) Leasing Brokerage/Property Management
Agreements. The General Partners shall have terminated any and
all leasing brokerage agreements and property management
agreements with respect to each 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 General Partners), shall be the sole
responsibility of the General Partners. The General Partners
agree that they 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 Partnership 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. Contributors shall
have complied with and not be in 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,
Purchaser may elect to terminate this Agreement by giving
Seller 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 Purchaser 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 (but
in no event for more than three (3) months from the
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Closing Date then in effect) in order to permit the satisfaction of any
condition precedent not so fulfilled.
(c) It shall be a condition precedent of Contributors'
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 Contributors at Closing, and (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 Contributors as incoming additional limited partners of FWRLP.
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 Partnership Agreement ("Amendment") and Limited Partnership
Certificate, in a recordable from, reasonably satisfactory to FWRLP and the
Contributors, setting forth the assignment by each of the Contributors of their
Partnership Interest and its withdrawal from the Partnership and the
substitution of FWRLP and /or its designee(s) as partners of the Partnership,
which Amendment shall be executed and acknowledged by all the Contributors; at
FWRLP's option, such Assignment and Amendment may contain such other amendments
of the Partnership Agreement as shall be determined by FWRLP, provided that the
Contributors shall execute such Assignment and Amendment solely for the purpose
of (a) assigning their respective Partnership Interests to FWRLP or its
designee(s), and (b) withdrawing from the Partnership.
(b) a release from each Contributor releasing the Partnership
and FWRLP (and its designee(s)) as partners of the Partnership from any
obligations and liabilities with respect to the original formation of the
Partnership, 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 any of the Contributors).
(c) An opinion of counsel for Contributors, in from and
substance reasonably acceptable to counsel for FWRLP, to the effect that:
(i) The Partnership is a duly organized and validly
existing in good standing under the laws of the State of
Maryland:
(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
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connectionherewith 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 Partnership is a party or
by which the Partnership is bound (and of which counsel has
knowledge) (other than the Crown Life Loan), or any law or
order, rule, regulation, writ, injunction or decree of any
government, governmental instrumentality or court, domestic or
foreign;
(iii) Contributors have complete and unrestricted
power to contribute, transfer, assign and deliver to FWRLP and
its designee(s) all of the Partnership Interests to be
contributed and assigned hereunder which are owned and /or
controlled by them, 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 Partnership Interests described therein; and
(iv) To the best of counsel's knowledge, there is no
litigation or investigation pending or threatened against the
Partnership, or the Property, or any part thereof, which might
result in any material, adverse change pertaining to the
Property or the Partnership, 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 General Partners 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 General Partners, which obligation shall
survive Closing;
(f) [Intentionally Omitted]
(g) an original letter executed by the General Partners
advising the tenants of the Property of the contribution of the Partnership
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 General Partners in
the condition required by this Agreement, and the keys therefore;
(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;
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(j) such other items and instruments from the General Partners
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 General Partners' or owner's affidavit), except that Contributors
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 General Partners 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 Contributors; and
(m) An amendment to the Partnership Agreement of FWRLP, in a
form reasonably acceptable to FWRLP and Contributors, admitting the Contributors
who receive Units as limited partners of FWRLP and issuing such Units as
computed in accordance with Exhibit Q hereto .
11. FWRLP's Performance. At the Closing, simultaneously with the
deliveries of Contributors pursuant to the provisions of Section 10 above, FWRLP
shall issue to Contributors the Units and cash 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.
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
Contributors 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 Contributors 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, then
Contributors shall either (at FWRLP's election) (i) reimburse to FWRLP one-half
(1/2) of such sum paid by FWRLP, or (ii) 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. FWRLP and Contributors 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 Partnership to FWRLP:
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(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 through the Closing Date, shall
be paid in full by the Partnership or the Contributors on or prior to the
Closing. All other special assessments or similar charges shall be adjusted as
of the Closing Date.
(c) Rent. Rent for the month of , and any month after, Closing
collected by the Partnership 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
Contributors so elect shall assign to Contributors the right to collect,
arrearages in rents due from tenants as of the Closing Date. If rents or any
portion thereof received by Contributors 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 Contributors their proportionate share thereof, less a
proportionate share of any reasonable attorneys' fees, costs and expenses of
collection thereof, and deliver to Contributors 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 Contributors (but only until the
time of the first reconciliation), FWRLP shall provide Contributors with the
then current periodic report of the status of collection of such Additional
Rents from such tenants.
(d) Distributions. The quarterly distributions payable to
Contributors on the Common Units for the first record date after any issuance to
Contributors shall be pro rated based upon the number of days within the quarter
occurring after such issuance to Contributors .
(e) Debt Service on the Crown Life Loan. The amount of
interest payable under the Crown Life Loan shall be apportioned as of the
Closing Date.
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(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
▇▇▇▇ or upon completion of final computations. To the extent that water
consumption or other utility charges may constitute a lien against the Property,
Contributors agree that an appropriate amount 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. The General Partners
shall use their reasonable efforts to have all utility meters read on the
Closing Date so as to accurately determine its share of current utility bills.
If any claims or liabilities are asserted at any time subsequent to Closing
against the Property or FWRLP, which were not taken into consideration for
adjustment hereunder, including without limitation, claims by governmental
agencies, and if such claims or liabilities are based upon or arise out of any
occurrence prior to Closing or any act or omission by Contributors, General
Partners shall satisfy such claims or liabilities and shall indemnify and hold
FWRLP harmless therefrom.
(g) Immediately prior to the Closing, Contributors shall have
the right to cause the Partnership to withdraw from the Partnership's bank
account(s) and distribute to the Contributors 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.
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 Contributors. 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 General Partners 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 Contributors 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
Partnership for the benefit of FWRLP), and
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Contributors shall have no obligation to repair or restore the Property;
provided, however, that the Unit portion of the Consideration shall be reduced
(based on the Unit Price per Unit) by an amount equal to the sum of (a) the
"deductible" applied by the Partnership's insurance policy, or (c) if the
Partnership 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 the General
Partners. FWRLP shall further have complete access to all documentation,
agreements and other information in the possession of Contributors related to
the ownership, use and operation of the Property, to the extent it is readily
available to Contributors, and shall have the right to make copies of same.
FWRLP shall not have the right during the Feasibility Period to contact tenants
(other than Metro Foods, Rite Aid and Trak Auto) without the prior consent of
the General Partners. FWRLP agrees to repair any damage to the Property that may
be caused by its inspections and to indemnify and defend Contributors and hold
Contributors harmless against any injury, loss or damage suffered upon the
Property as a result of such inspections.
(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
later of (i) the date which is forty-five (45) days after the Acceptance Date,
or (ii) December 6, 1996 (such period herein referred to as the "Feasibility
Period"), to terminate this Agreement by giving written notice thereof to the
General Partners 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.
-23-
(c) Audit. The General Partners hereby agree to allow books
and records related to each Property to be audited (at FWRLP's sole expense) by
an independent, certified public accounting firm selected by FWRLP, and the
General Partners will cooperate and cause its employees and other agents to
cooperate in such auditing process. FWRLP shall provide the General Partners
with prior notice of such audit.
15. Indemnifications.
(a) Indemnification by Contributors. Each 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 Partnership 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 General Partners. Except for the
indemnifications set forth in Section 15(a) above, the General Partners, jointly
and severally, hereby indemnify and agree 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 Partnership 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 representation, warranty, covenant or
agreement on the part of the General Partners made herein or in any instrument
or document delivered by the General Partners pursuant to this Agreement, and/or
(ii) any obligation, claims, suit, liability, contract, agreement, debt or
encumbrance or other occurrence (other than obligations under the Crown Life
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 and other obligations, claims or agreements expressly
assumed by FWRLP in writing) created, arising or accruing prior to the Closing
Date, regardless of when asserted, and relating to the Partnership, or the
Property, or its operations. 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. Any indemnification of
FWRLP or the Partnership 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
-24-
subject to a survival period described in Section 6 or elsewhere in this
Agreement, but shall cease and expire with respect to any claim not raised by
FWRLP, by written notice to Contributors, within such limited survival period).
(c) Indemnification by FWRLP. FWRLP hereby indemnifies and
agrees to defend and hold harmless Contributors and their 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
Contributors 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 Partnership or its
operations. The foregoing obligations set forth in this Section 15(c) shall
survive Closing without time limitation.
16. Brokerage Commission. Contributors 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 Contributors at the Closing
pursuant to a separate agreement. Contributors 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.
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
Contributors as full and complete liquidated damages, and as the exclusive and
sole right and remedy of Contributors, whereupon this Agreement shall terminate
and neither party shall have any further obligations or liabilities to any other
party.
(b) Contributors Default. Except for any breaches waived in
writing by FWRLP, if Contributors have 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 Contributors 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 Contributors 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
-25-
performance. In the event that FWRLP elects to pursue specific performance and
FWRLP prevails in such litigation, in addition to any damages or other relief
awarded to FWRLP, Contributors 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. Contributors receiving Units 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 Q 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.
(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 Partnership to issue a 1% limited partnership
interest in the Partnership 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 Contributors as required herein. This Agreement shall not be
assignable by Contributors.
(d) Waiver; Modification. Failure by FWRLP or Contributors 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.
-26-
(g) Continuing Documentation and Access. From and after
Closing, the General Partners 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 Contributors, the Partnership or FWRLP concerning
confidentiality set forth herein. FWRLP and the REIT agree and acknowledge that
the information provided to them by the General Partners, the Contributors or
the Partnership regarding the Property or the Partnership 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 General Partners. 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 General Partners.
(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 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
▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to Contributors or the General Partners:
c/o TriStar Management, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
-27-
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Miles & Stockbridge, P.C.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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) All Warranties Joint and Several. Except as expressly
provided otherwise in this Agreement, each and every warranty, covenant,
undertaking and agreement of the General Partners hereunder shall be deemed a
joint and several warranty, covenant, undertaking and agreement of each person
and entity collectively comprising the Contributors.
(k) Further Assurances. Contributors 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 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 each Contributor who
receives Units 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;
-28-
(ii) the amount of nonrecourse debt allocated to each
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) Each Contributor who receives Units, 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. 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,
such 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, then the
Contributor agrees to contribute to the capital 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 the 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 $6,000,000.00 (other
than scheduled amortization of the mortgage loan and principal curtailments of
the mortgage loan beyond FWRLP's reasonable control), during the period
beginning on the Closing Date and ending five years thereafter.
-29-
(f) FWRLP will use the "remedial" 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.
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
By: /s/
------------------------- -------------------------------
[Assistant Secretary] ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
[Corporate Seal]
Date of execution: October 17 , 1996
WITNESS: CONTRIBUTORS:
CONTINENTAL REALTY INVESTORS CORP.
By: /s/
------------------------- --------------------------------------
Name:
Title:
JHP DEVELOPMENT COMPANY, INC.
By: /s/
------------------------- --------------------------------------
Name:
Title:
/s/
------------------------- ---------------------------------------
J. ▇▇▇▇ ▇▇▇▇▇▇▇▇
-30-
[Signatures Continued from Previous Page]
/s/
----------------------------- -------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
/s/
----------------------------- -------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, TRUSTEE
for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
/s/
----------------------------- --------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, TRUSTEE
for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
/s/
----------------------------- ---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, TRUSTEE
for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
TRIPEC ASSOCIATES, L.P.
By: /s/
----------------------------- ------------------------------------
Name:
Title:
/s/
----------------------------- ------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
JHJ INVESTMENT LIMITED PARTNERSHIP
By: Continental Realty Investors Corp.,
Attorney-in-Fact
By: /s/
------------------------------ ------------------------------------
Name: J. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Date of execution: , 1996
-31-
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 21(g) hereof.
FIRST WASHINGTON REALTY
WITNESS: TRUST, INC.
By: /s/
--------------------------- ----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
Date of execution: October 17 ,1996
-32-
ACKNOWLEDGE 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/
----------------------------- --------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Date: October 23, 1996
-33-
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. Partnership Agreement Section 6(a)
EXHIBIT Q. Allocation of Units, Consideration Section 2(a)
[Contributors and FWRLP to Attach Foregoing at Acceptance of this Agreement]
-34-
EXHIBIT A
LEGAL DESCRIPTION OF LAND
-35-
EXHIBIT B
LEASES AND RENT SCHEDULE
-36-
EXHIBIT C
SERVICE CONTRACTS
-37-
EXHIBIT D
VIOLATIONS
NONE
-37-
EXHIBIT E
INSURANCE LIST
-38-
EXHIBIT F
Form of Tenant Estoppel
ESTOPPEL CERTIFICATE
, 199
First Washington Realty Limited Partnership
▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: [Name of Shopping Center]
Lease dated ________, 19___, with [name of Tenant]
Gentlemen:
Please be advised that the undersigned tenant hereby certifies as of
the date hereof as follows with respect to the Lease:
Name of Tenant:
Description of Leased Premises:
Date of Commencement of Lease:
Date of Termination of Lease:
Options to Renew:
Base Rental: Annual Rental of $ , payable monthly in advance.
---------------
Real Estate Tax Charges: pro rata: ___ yes ___ no. ( $ payable monthly in
-----------------
advance)
Percentage Rent: ____% of Gross Receipts over $___________
Common Area Maintenance Charges: pro rata: ___ yes ___ no. ($_________
payable monthly in advance)
Tenant in possession of the premises under the Lease?: Yes
The Lease is unmodified and in full force and effect except for modifications,
listed by number and date on Exhibit A attached hereto.
Amount of rent paid in advance: $
Amount of Security Deposit: $
-i-
Compliance with Construction Requirements: Landlord has complied with all
construction requirements of Tenant, and Tenant has accepted all of the leased
premises under the Lease.
Tenant has not made any claims against Landlord and has no knowledge of any
uncured default on the part of Landlord (If there is knowledge of any uncured
default, please note and attach separate sheet).
Tenant's Right to Purchase: Tenant has no option or right in the nature of a
right of first refusal to purchase or otherwise acquire any interest in the
leased premises.
Tenant's Right of Premature Termination or Option to Renew: Tenant has no right
to premature termination and no right or option to renew or extend the term
beyond its present term and no option to lease additional space, except as
expressly set forth in the Lease.
In the event of foreclosure, Tenant agrees to attorn to the purchaser of the
leased premises at the foreclosure sale.
TENANT:
By:
Name:
Title:
STATE OF )
) ss:
COUNTY OF )
Signed and sealed in my presence this day of , 199 .
---- -------------- ---
Notary Public
[SEAL]
My Commission Expires:
-ii-
EXHIBIT F-1
TENANT ESTOPPELS
o Metro Foods 49,028 s.f.
o Rite Aid 6,336 s.f.
o Trak Auto 6,000 s.f.
61,364 s.f.
o Tenant's occupying at least 80% of
the remaining space at the Property.
[(98,016 s.f. - 61,364 s.f.) X 80% = 29,322 s.f.
-iii-
EXHIBIT G
LITIGATION
NONE
-iv-
EXHIBIT H
OPERATING STATEMENTS AND BUDGET
-v-
EXHIBIT I
PERSONAL PROPERTY
NONE
-vi-
EXHIBIT J
PERMITTED EXCEPTIONS
-vii-
EXHIBIT K
REGISTRATION RIGHTS AGREEMENT
FWRLP will apply Revenue Ruling 95-41 such that the ▇▇▇▇▇▇▇▇ Partners
would be allocated an amount of non-recourse liabilities under Section
1.752-3(a)(2) equal to (A) the product of (i) the fair market value of the
entire Property minus the non-recourse debt owed to Crown Life at the time of
Closing [currently estimated to be $3,000,000 (i.e., $9,000,000 minus
$6,000,000)] multiplied by (ii) the percentage of total Common Units in FWRLP
held by the other partners in FWRLP at the time of Closing, less (B) the excess
of the tax basis of the entire Property (currently estimated to be $6,393,505)
minus the non-recourse mortgage balance of the Crown Life Loan at Closing
(currently estimated to be $__________).
-viii-
EXHIBIT L
CONFIDENTIAL INFORMATION STATEMENT
-ix-
EXHIBIT M
[INTENTIONALLY OMITTED]
-x-
EXHIBIT N
MORTGAGE
-xi-
EXHIBIT O
NOTE
-xii-
EXHIBIT P
PARTNERSHIP AGREEMENT
-xiii-
EXHIBIT Q
ALLOCATION OF CONSIDERATION
Percentage of
Consideration
CONTINENTAL REALTY INVESTORS CORP.
JHP DEVELOPMENT COMPANY, INC.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, TRUSTEES UNDER
AGREEMENT OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
DATED JUNE 24, 1974 (TRUST 112)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇▇▇▇▇, TRUSTEE
for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (cash)
▇▇▇▇▇ ▇▇▇▇▇, TRUSTEE
for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (cash)
▇▇▇▇▇ ▇▇▇▇▇, TRUSTEE
for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (cash)
TRIPEC ASSOCIATES, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
JHJ INVESTMENT LIMITED PARTNERSHIP
-xiv-
