0000844059-12-000008.txt : 20120502
0000844059-12-000008.hdr.sgml : 20120502
20120502123706
ACCESSION NUMBER: 0000844059-12-000008
CONFORMED SUBMISSION TYPE: 10-Q
PUBLIC DOCUMENT COUNT: 14
CONFORMED PERIOD OF REPORT: 20120331
FILED AS OF DATE: 20120502
DATE AS OF CHANGE: 20120502
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PATRIOT TRANSPORTATION HOLDING INC
CENTRAL INDEX KEY: 0000844059
STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING & COURIER SERVICES (NO AIR) [4210]
IRS NUMBER: 592924957
STATE OF INCORPORATION: FL
FISCAL YEAR END: 0930
FILING VALUES:
FORM TYPE: 10-Q
SEC ACT: 1934 Act
SEC FILE NUMBER: 000-17554
FILM NUMBER: 12803756
BUSINESS ADDRESS:
STREET 1: 200 W. FORSYTH ST.
STREET 2: 7TH FLOOR
CITY: JACKSONVILLE
STATE: FL
ZIP: 32202
BUSINESS PHONE: 9043965733
MAIL ADDRESS:
STREET 1: 200 W. FORSYTH ST.
STREET 2: 7TH FLOOR
CITY: JACKSONVILLE
STATE: FL
ZIP: 32202
FORMER COMPANY:
FORMER CONFORMED NAME: FRP PROPERTIES INC
DATE OF NAME CHANGE: 19920703
10-Q
1
patrmarq12.txt
PATR MARCH 2012 FORM 10Q
FORM 10-Q
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark one)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For quarterly period ended March 31, 2012
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission File Number 33-26115
PATRIOT TRANSPORTATION HOLDING, INC.
(Exact name of registrant as specified in its charter)
Florida 59-2924957
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 W. Forsyth St., 7th Floor, Jacksonville, FL 32202
(Address of principal executive offices)(Zip Code)
904-396-5733
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No___
Indicate by check mark whether the registrant has submitted
electronically and posted on its corporate Web site, if any,
every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (Section 232.405 of this chapter)
during the preceding 12 months (or for such shorter period that
the registrant was required to submit and post such files).
Yes[X] No[ ]
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, or a non-accelerated
filer. See definition of "accelerated filer and large
accelerated filer" in Rule 12b-2 of the Exchange Act.
Large accelerated filer[ ] Accelerated filer[X] Non-
accelerated filer[ ]
Indicate by check mark whether the registrant is a shell
company (as defined in Rule 12b-2 of the Exchange Act).
YES[ ] NO[X]
Indicate the number of shares outstanding of each of the
issuer's classes of common stock, as of the latest practicable
date.
On March 31, 2012 there were 9,372,551 shares of
Common Stock,
$.10 par value per share, outstanding.
PATRIOT TRANSPORTATION HOLDING, INC.
FORM 10-Q
QUARTER ENDED MARCH 31, 2012
CONTENTS
Page No.
Preliminary Note Regarding Forward-Looking Statements 3
Part I. Financial Information
Item 1. Financial Statements
Consolidated Balance Sheets 4
Consolidated Statements of Income 5
Consolidated Statements of Cash Flows 6
Condensed Notes to Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 15
Item 3. Quantitative and Qualitative Disclosures about Market Risks 27
Item 4. Controls and Procedures 28
Part II. Other Information
Item 1A. Risk Factors 29
Item 2. Purchase of Equity Securities by the Issuer 29
Item 6. Exhibits 29
Signatures 39
Exhibit 31 Certifications pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 32
Exhibit 32 Certifications pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002. 35
Preliminary Note Regarding Forward-Looking Statements.
Certain matters discussed in this report contain forward-looking
statements that are subject to risks and uncertainties that could cause
actual results to differ materially from those indicated by such forward-
looking statements.
These forward-looking statements relate to, among other things, capital
expenditures, liquidity, capital resources and competition and may be
indicated by words or phrases such as "anticipate", "estimate", "plans",
"projects", "continuing", "ongoing", "expects", "management believes",
"the Company believes", "the Company intends" and similar words or
phrases. The following factors and others discussed in the Company's
periodic reports and filings with the Securities and Exchange Commission
are among the principal factors that could cause actual results to differ
materially from the forward-looking statements: freight demand for
petroleum products including recessionary and terrorist impacts on travel
in the Company's markets; levels of construction activity in the markets
served by our mining properties; fuel costs and the Company's ability to
recover fuel surcharges; accident severity and frequency; risk insurance
markets; driver availability and cost; the impact of future regulations
regarding the transportation industry; availability and terms of
financing; competition in our markets; interest rates, inflation and
general economic conditions; demand for flexible warehouse/office
facilities in the Baltimore-Washington-Northern Virginia area; and ability
to obtain zoning and entitlements necessary for property development.
However, this list is not a complete statement of all potential risks or
uncertainties.
These forward-looking statements are made as of the date hereof based on
management's current expectations, and the Company does not undertake an
obligation to update such statements, whether as a result of new
information, future events or otherwise. Additional information regarding
these and other risk factors may be found in the Company's other filings
made from time to time with the Securities and Exchange Commission.
PART I. FINANCIAL INFORMATION, ITEM 1. FINANCIAL STATEMENTS
PATRIOT TRANSPORTATION HOLDING, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Unaudited) (In thousands, except share data)
March 31, September 30,
Assets 2012 2011
Current assets:
Cash and cash equivalents $ 20,037 21,026
Accounts receivable (net of allowance for
doubtful accounts of $112 and $111, respectively) 8,961 6,702
Federal and state income taxes receivable 958 93
Inventory of parts and supplies 1,050 1,121
Deferred income taxes 493 201
Prepaid tires on equipment 1,521 1,381
Prepaid taxes and licenses 862 1,860
Prepaid insurance 1,125 2,111
Prepaid expenses, other 114 85
Assets of discontinued operations 107 114
Total current assets 35,228 34,694
Property, plant and equipment, at cost 318,791 313,930
Less accumulated depreciation and depletion 108,630 104,942
Net property, plant and equipment 210,161 208,988
Real estate held for investment, at cost 6,848 6,848
Investment in joint venture 7,470 7,412
Goodwill 1,087 1,087
Unrealized rents 3,967 3,604
Other assets 3,782 3,757
Total assets $268,543 266,390
Liabilities and Shareholders' Equity
Current liabilities:
Accounts payable $ 3,590 3,948
Accrued payroll and benefits 3,882 4,992
Accrued insurance 3,115 3,303
Accrued liabilities, other 1,165 1,053
Long-term debt due within one year 5,068 4,902
Liabilities of discontinued operations 31 34
Total current liabilities 16,851 18,232
Long-term debt, less current portion 59,794 62,370
Deferred income taxes 18,147 16,919
Accrued insurance 2,154 2,548
Other liabilities 1,949 1,874
Commitments and contingencies (Note 8)
Shareholders' equity:
Preferred stock, no par value;
5,000,000 shares authorized; none issued - -
Common stock, $.10 par value;
25,000,000 shares authorized,
9,372,551 and 9,288,023 shares issued
and outstanding, respectively 937 929
Capital in excess of par value 40,378 38,845
Retained earnings 128,302 124,642
Accumulated other comprehensive income, net 31 31
Total shareholders' equity 169,648 164,447
Total liabilities and shareholders' equity $268,543 266,390
See accompanying notes.
PATRIOT TRANSPORTATION HOLDING, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(In thousands except per share amounts)
(Unaudited)
THREE MONTHS SIX MONTHS
ENDED MARCH 31, ENDED MARCH 31,
2012 2011 2012 2011
Revenues:
Transportation $25,449 23,036 50,290 46,027
Mining royalty land 1,025 918 2,002 2,013
Developed property rentals 4,852 4,636 9,393 8,813
Total revenues 31,326 28,590 61,685 56,853
Cost of operations:
Transportation 23,659 21,034 47,057 42,037
Mining royalty land 323 352 616 691
Developed property rentals 3,341 3,499 6,503 6,645
Unallocated corporate 559 521 851 1,108
Total cost of operations 27,882 25,406 55,027 50,481
Operating profit:
Transportation 1,790 2,002 3,233 3,990
Mining royalty land 702 566 1,386 1,322
Developed property rentals 1,511 1,137 2,890 2,168
Unallocated corporate (559) (521) (851) (1,108)
Total operating profit 3,444 3,184 6,658 6,372
Gain on termination of sale contract - - 1,039 -
Interest income and other 12 99 21 201
Equity in loss of joint venture (1) (2) (8) (2)
Interest expense (794) (838) (1,598) (1,744)
Income before income taxes 2,661 2,443 6,112 4,827
Provision for income taxes (1,022) (938) (2,348) (1,854)
Income from continuing operations 1,639 1,505 3,764 2,973
Income from discontinued
operations, net 4 178 3 5,105
Net income $ 1,643 1,683 3,767 8,078
Comprehensive Income $ 1,643 $ 1,683 $ 3,767 $ 8,078
Earnings per common share:
Income from continuing operations -
Basic $ .18 .16 .40 .32
Diluted $ .17 .16 .40 .31
Discontinued operations (Note 11) -
Basic $ - .02 - .55
Diluted $ - .02 - .54
Net income - basic $ .18 .18 .40 .87
Net income - diluted $ .17 .18 .40 .85
Number of shares (in thousands)
used in computing:
-basic earnings per common share 9,353 9,272 9,321 9,272
-diluted earnings per common share 9,471 9,453 9,446 9,457
See accompanying notes.
PATRIOT TRANSPORTATION HOLDING, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
SIX MONTHS ENDED MARCH 31, 2012 AND 2011
(In thousands)
(Unaudited)
2012 2011
Cash flows from operating activities:
Net income $ 3,767 8,078
Adjustments to reconcile net income to net cash
provided by continuing operating activities:
Depreciation, depletion and amortization 6,306 6,161
Deferred income taxes 936 (476)
Equity in loss of joint venture 8 2
Gain on sale of equipment and property (1,536) (233)
Income from discontinued operations, net (3) (5,105)
Stock-based compensation 547 545
Net changes in operating assets and liabilities:
Accounts receivable (9) (687)
Inventory of parts and supplies 71 (450)
Prepaid expenses and other current assets 1,815 1,887
Other assets (737) 218
Accounts payable and accrued liabilities (1,544) (1,629)
Income taxes payable and receivable (865) 1,324
Long-term insurance liabilities and other long-term
liabilities (319) 135
Net cash provided by operating activities of
continuing operations 8,437 9,770
Net cash provided by (used in) operating activities of
discontinued operations 7 (593)
Net cash provided by operating activities 8,444 9,177
Cash flows from investing activities:
Purchase of transportation group property and equipment (5,403) (3,159)
Investments in developed property rentals segment (4,046) (5,010)
Investment in joint venture (70) (114)
Proceeds from the sale of property, plant and equipment 1,609 416
Proceeds received on note for sale of SunBelt - 1,064
Net cash used in investing activities (7,910) (6,803)
Cash flows from financing activities:
Repayment of long-term debt (2,410) (2,256)
Repurchase of Company Stock (137) (1,145)
Excess tax benefits from exercises of stock options
and vesting of restricted stock 353 249
Exercise of employee stock options 671 251
Net cash used in financing activities (1,523) (2,901)
Net decrease in cash and cash equivalents (989) (527)
Cash and cash equivalents at beginning of period 21,026 17,151
Cash and cash equivalents at end of the period $ 20,037 16,624
The Company recorded non-cash transactions in fiscal 2012 for a $2,250
receivable on previously capitalized real estate taxes on the Anacostia
property and in fiscal 2011 from an exchange of real estate of $4,941 along
with a related deferred tax liability of $1,792 and a $2,053 permanent tax
benefit on the value of donated minerals and aggregates which was recorded
as a $342 receivable and $1,711 deferred tax.
See accompanying notes.
PATRIOT TRANSPORTATION HOLDING, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2012
(Unaudited)
(1) Basis of Presentation. The accompanying consolidated financial
statements include the accounts of Patriot Transportation Holding,
Inc. and its subsidiaries (the "Company"). Investment in the 50%
owned Brooksville Joint Venture is accounted for under the equity
method of accounting. These statements have been prepared in
accordance with accounting principles generally accepted in the
United States of America for interim financial information and the
instructions to Form 10-Q and do not include all the information
and footnotes required by accounting principles generally accepted
in the United States of America for complete financial statements.
In the opinion of management, all adjustments (primarily
consisting of normal recurring accruals) considered necessary for a
fair statement of the results for the interim periods have been
included. Operating results for the six months ended March 31,
2012 are not necessarily indicative of the results that may be
expected for the fiscal year ending September 30, 2012. The
accompanying consolidated financial statements and the information
included under the heading "Management's Discussion and Analysis of
Financial Condition and Results of Operations" should be read in
conjunction with the Company's consolidated financial statements
and related notes included in the Company's Form 10-K for the year
ended September 30, 2011.
(2) Stock Split. On December 1, 2010, the board of directors
declared a 3-for-1 stock split of the Company's common stock in the
form of a stock dividend. The record date for the split was
January 3, 2011 and the new shares were issued on January 17, 2011.
The total authorized shares remained 25 million and par value of
common stock remained unchanged at $.10 per share. All share and
per share information presented has been adjusted to reflect this
stock split.
(3) Recent Accounting Pronouncements. In June 2011, accounting
guidance was issued which requires an entity to present the total
of comprehensive income, the components of net income, and the
components of other comprehensive income either in a single
continuous statement of comprehensive income or in two separate but
consecutive statements. This guidance eliminates the option to
present the components of other comprehensive income as part of the
statement of equity. This standard was adopted by the Company on
January 1, 2012. As the new adoption relates to presentation only,
the adoption of this standard did not have a material effect on the
Company's financial position or results of operations.
(4) Business Segments. The Company operates in three reportable
business segments. The Company's operations are substantially in
the Southeastern and Mid-Atlantic states. The transportation
segment hauls petroleum and other liquids and dry bulk commodities
by tank trailers. The Company's real estate operations consist of
two reportable segments. The Mining royalty land segment owns real
estate including construction aggregate royalty sites and parcels
held for investment. The Developed property rentals segment
acquires, constructs, and leases office/warehouse buildings
primarily in the Baltimore/Northern Virginia/Washington area and
holds real estate for future development or related to its
developments.
The Company's transportation and real estate groups operate
independently and have minimal shared overhead except for corporate
expenses. Corporate expenses are allocated in fixed quarterly
amounts based upon budgeted and estimated proportionate cost by
segment. Unallocated corporate expenses primarily include stock
compensation and corporate aircraft expenses.
Operating results and certain other financial data for the
Company's business segments are as follows (in thousands):
Three Months ended Six Months ended
March 31,___ March 31,___
2012 2011 2012 2011
Revenues:
Transportation $ 25,449 23,036 50,290 46,027
Mining royalty land 1,025 918 2,002 2,013
Developed property rentals 4,852 4,636 9,393 8,813
$ 31,326 28,590 61,685 56,853
Operating profit:
Transportation $ 2,186 2,392 4,024 4,769
Mining royalty land 865 718 1,713 1,627
Developed property rentals 1,757 1,365 3,381 2,625
Corporate expenses:
Allocated to transportation (396) (390) (791) (779)
Allocated to mining land (163) (152) (327) (305)
Allocated to developed property (246) (228) (491) (457)
Unallocated (559) (521) (851) (1,108)
(1,364) (1,291) (2,460) (2,649)
$ 3,444 3,184 6,658 6,372
Interest expense:
Mining royalty land $ 9 9 19 18
Developed property rentals ___785 _ 829 1,579 1,726
$ 794 838 1,598 1,744
Capital expenditures:
Transportation $ 614 1,363 5,403 3,159
Mining royalty land - - - -
Developed property rentals:
Capitalized interest 284 316 578 583
Internal labor 117 149 258 260
Real estate taxes (a) (90) 269 (1,697) 572
Other costs (b) 939 1,557 2,657 3,595
$ 1,864 3,654 7,199 8,169
(a)Includes $2,250 receivable on previously capitalized real estate taxes
on the Anacostia property for the 6 months ended March 31, 2012.
(b)Net of 1031 exchange of $4,941 for the 3 and 6 months ending March
31, 2011.
Depreciation, depletion and
amortization:
Transportation $ 1,720 1,563 3,328 3,098
Mining royalty land 27 26 59 51
Developed property rentals 1,373 1,316 2,714 2,617
Other 103 48 205 395
$ 3,223 2,953 6,306 6,161
March 31, September 30,
2012 2011
Identifiable net assets
Transportation $ 39,947 39,001
Discontinued transportation operations 107 114
Mining royalty land 28,215 28,295
Developed property rentals 176,847 175,618
Cash items 20,037 21,026
Unallocated corporate assets 3,390 2,336
$268,543 266,390
(5) Long-Term debt. Long-term debt is summarized as follows (in
thousands):
March 31, September 30,
2012 2011
5.6% to 8.6% mortgage notes
due in installments through 2027 64,862 67,272
Less portion due within one year 5,068 4,902
$ 59,794 62,370
The Company has a $37,000,000 uncollateralized Revolving Credit
Agreement with three banks, which matures on December 13, 2013.
The Revolver bears interest at a rate of 1.00% over the selected
LIBOR, which may change quarterly based on the Company's ratio of
Consolidated Total Debt to Consolidated Total Capital, as defined.
A commitment fee of 0.15% per annum is payable quarterly on the
unused portion of the commitment. The commitment fee may also
change quarterly based upon the ratio described above. The
Revolver contains limitations on availability and restrictive
covenants including limitations on paying cash dividends. Letters
of credit in the amount of $12,082,000 were issued under the
Revolver. As of March 31, 2012, $24,918,000 was available for
borrowing and $53,947,000 of consolidated retained earnings would
be available for payment of dividends. The Company was in
compliance with all covenants as of March 31, 2012.
The fair values of the Company's mortgage notes payable were
estimated based on current rates available to the Company for debt
of the same remaining maturities. At March 31, 2012, the carrying
amount and fair value of such other long-term debt was $64,862,000
and $67,717,000, respectively.
(6) Earnings per share. The following details the computations of
the basic and diluted earnings per common share (dollars in
thousands, except per share amounts):
THREE MONTHS SIX MONTH
ENDED MARCH 31, ENDED MARCH 31,
2012 2011 2012 2011
Weighted average common shares
outstanding during the period
- shares used for basic
earnings per common share 9,353 9,272 9,321 9,272
Common shares issuable under
share based payment plans
which are potentially dilutive 118 181 125 185
Common shares used for diluted
earnings per common share 9,471 9,453 9,446 9,457
Net income $ 1,643 1,683 3,767 8,078
Earnings per common share
Basic $ .18 .18 .40 .87
Diluted $ .17 .18 .40 .85
For the three and six months ended March 31, 2012, 164,560 and
172,060 shares attributable to outstanding stock options,
respectively, were excluded from the calculation of diluted
earnings per share because their inclusion would have been anti-
dilutive. For the three and six months ended March 31, 2011,
132,870 shares attributable to outstanding stock options were
excluded from the calculation of diluted earnings per common share
because their inclusion would have been anti-dilutive.
(7) Stock-Based Compensation Plans. As more fully described in
Note 7 to the Company's notes to the consolidated financial
statements in the Company's Annual Report on Form 10-K for the year
ended September 30, 2011, the Company's stock-based compensation
plan permits the grant of stock options, stock appreciation rights,
restricted stock awards, restricted stock units, and stock awards.
The number of common shares available for future issuance was
603,560 at March 31, 2012.
The Company recorded the following stock compensation expense in
its consolidated statements of income (in thousands):
Three Months ended Six Months ended
March 31, March 31,_
2012 2011 2012 2011
Stock option grants $ 91 79 227 211
Annual director stock award 320 334 320 334
411 413 547 545
A summary of changes in outstanding options is presented below (in
thousands, except share and per share amounts):
Weighted Weighted Weighted
Number Average Average Average
Of Exercise Remaining Grant
Date
Options Shares Price Term (yrs) Fair
Value
Outstanding at
October 1, 2011 606,025 $14.96 3.5 $ 4,216
Granted 31,690 $22.25 $ 281
Exercised 76,541 $ 8.77 $ 363
Forfeited 3,000 $ 5.78 $
10
Outstanding at
March 31, 2012 558,174 $16.27 3.8 $ 4,124
Exercisable at
March 31, 2012 467,930 $14.48 2.9 $ 3,159
Vested during
six months ended
March 31, 2012 23,274 $ 212
The aggregate intrinsic value of exercisable in-the-money options
was $4,446,000 and the aggregate intrinsic value of all outstanding
in-the-money options was $4,471,000 based on the market closing
price of $23.29 on March 30, 2012 less exercise prices. Gains of
$976,000 were realized by option holders during the six months
ended March 31, 2012. The realized tax benefit from options
exercised for the six months ended March 31, 2012 was $374,000.
Total compensation cost of options granted but not yet vested as of
March 31, 2012 was $752,000, which is expected to be recognized
over a weighted-average period of 3.2 years.
(8) Contingent liabilities. Certain of the Company's subsidiaries
are involved in litigation on a number of matters and are subject
to certain claims which arise in the normal course of business.
The Company has retained certain self-insurance risks with respect
to losses for third party liability and property damage. There is
a reasonable possibility that the Company's estimate of vehicle and
workers' compensation liability for the transportation group or
discontinued operations may be understated or overstated but the
possible range can not be estimated. The liability at any point in
time depends upon the relative ages and amounts of the individual
open claims. In the opinion of management none of these matters
are expected to have a material adverse effect on the Company's
consolidated financial condition, results of operations or cash
flows.
(9) Concentrations. The transportation segment primarily serves
customers in the industries in the Southeastern U.S. Significant
economic disruption or downturn in this geographic region or these
industries could have an adverse effect on our financial
statements.
During the first six months of fiscal 2012, the transportation
segment's ten largest customers accounted for approximately 53.7%
of the transportation segment's revenue. One of these customers
accounted for 19.2% of the transportation segment's revenue. The
loss of any one of these customers would have an adverse effect on
the Company's revenues and income. Accounts receivable from the
transportation segment's ten largest customers was $2,961,000 and
$3,115,000 at March 31, 2012 and September 30, 2011 respectively.
The mining royalty land segment has one lessee that accounted for
82.0% of the segment's revenues and $134,000 of accounts
receivable. The loss of this customer would have an adverse effect
on the segment.
The Company places its cash and cash equivalents with high credit
quality institutions. At times such amounts may exceed FDIC
limits.
(10) Fair Value Measurements. Fair value is defined as the price
that would be received to sell an asset or paid to transfer a
liability in an orderly transaction between market participants at
the measurement date. The fair value hierarchy prioritizes the
inputs to valuation techniques used to measure fair value into
three broad levels. Level 1 means the use of quoted prices in
active markets for identical assets or liabilities. Level 2 means
the use of values that are derived principally from or corroborated
by observable market data. Level 3 means the use of inputs that
are unobservable and significant to the overall fair value
measurement.
As of March 31, 2012 the Company had no assets or liabilities
measured at fair value on a recurring basis or non-recurring basis.
During fiscal 2011 the corporate aircraft was placed back into
service and depreciation was recommenced. Prior to that it was
recorded at fair value based on level 2 inputs for similar assets
in the current market on a non-recurring basis as it was deemed to
be other-than-temporarily impaired. The first quarter of fiscal
2011 included $300,000 for the impairment to estimated fair value
of the corporate aircraft.
The fair value of all other financial instruments with the
exception of mortgage notes (see Note 5) approximates the carrying
value due to the short-term nature of such instruments.
(11) Discontinued operations. In August 2009 the Company sold its
flatbed trucking company, SunBelt Transport, Inc. ("SunBelt").
Under the agreement, the Buyer purchased all of SunBelt's tractors
and trailers, leased the SunBelt terminal facilities in
Jacksonville, Florida for 36 months at a rental of $5,000 per month
and leased the terminal facilities in South Pittsburg, Tennessee
for 60 months at a rental of $5,000 per month with an option to
purchase the Tennessee facilities at the end of the lease for
payment of an additional $100,000. The South Pittsburg lease was
recorded as a sale under bargain purchase accounting. The purchase
price received for the tractors and trailers and inventories was a
$1 million cash payment and the delivery of a Promissory Note
requiring 60 monthly payments of $130,000 each including interest
at 7%, secured by the assets of the business conveyed. As of
September 30, 2011 the note receivable was fully paid and the
option to purchase the South Pittsburg facility was completed. The
Company retained all pre-closing receivables and liabilities.
SunBelt has been accounted for as discontinued operations in
accordance with ASC Topic 205-20 Presentation of Financial
Statements - Discontinued Operations. All periods presented have
been restated accordingly.
In December 2010, a subsidiary of the Company, Florida Rock
Properties, Inc., closed a bargain sale of approximately 1,777
acres of land in Caroline County, Virginia, to the Commonwealth of
Virginia, Board of Game and Inland Fisheries. The purchase price
for the property was $5,200,000, subject to certain deductions.
The Company also donated $5,599,000 primarily for the value of
minerals and aggregates and recognized a $2,126,000 permanent tax
benefit. The $2,126,000 permanent tax benefit was recorded to
income taxes receivable for $303,000 and offset to long-term
deferred tax liabilities of $1,823,000. Actual realization of the
$1,823,000 in deferred taxes will depend on taxable income, income
tax rates, and income tax regulations over the 5 year carry forward
period. The Company's book value of the property was $276,000.
A summary of discontinued operations is as follows (in thousands):
Three months Six months
Ended March 31, Ended March
31,
2012 2011 2012 2011
Revenue $ 15 15 30 30
Operating expenses 9 (274) 25 (260)
Gain on sale before taxes - - - 4,665
Income before income taxes $ 6 289 5 4,955
Permanent tax benefit - - - 2,126
Provision for income taxes (2) (111) (2) (1,976)
Income from discontinued operations $ 4 178 3 5,105
The amounts included in the above totals for the bargain sale is as
follows (in thousands):
Three months Six months
Ended March 31, Ended March
31,
2012 2011 2012 2011
Revenue $ - - - -
Operating expenses - - - -
Gain on sale before taxes - - - 4,665
Income before income taxes $ - - - 4,665
Permanent tax benefit - - - 2,126
Provision for income taxes - - - (1,792)
Income from discontinued operations $ - - - 4,999
The components of the balance sheet are as follows:
March 31, September 30,
2012 2011
Accounts receivable $ - 3
Deferred income taxes 5 4
Property and equipment, net 102 107
Assets of discontinued operations $ 107 114
Accounts payable $ 1 -
Accrued payroll and benefits 2 2
Accrued liabilities, other - 3
Insurance liabilities 28 29
Liabilities of discontinued operations $ 31 34
(12) Unusual or Infrequent Items Impacting Quarterly Results.
Income from continuing operations for the first quarter of fiscal
2012 included a gain on termination of sale contract in the amount
of $1,039,000 before income taxes for the receipt of non-refundable
deposits related to the termination of an agreement to sell the
Company's Windlass Run Residential property
Discontinued operations, net for the first quarter of fiscal 2011
included a book gain on the exchange of property of $4,926,000
after tax (see note 11).
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Overview - Patriot Transportation Holding, Inc. (the Company) is a
holding company engaged in the transportation and real estate
businesses.
The Company's transportation business, Florida Rock & Tank Lines,
Inc. is engaged in hauling primarily petroleum and other liquids
and dry bulk commodities in tank trailers.
The Company's real estate operations consist of two reportable
segments. The Mining royalty land segment owns real estate
including construction aggregate royalty sites and parcels held for
investment. The Developed property rentals segment acquires,
constructs, and leases office/warehouse buildings primarily in the
Baltimore/Northern Virginia/Washington area and holds real estate
for future development or related to its developments.
Substantially all of the real estate operations are conducted
within the Southeastern and Mid-Atlantic United States.
On December 1, 2010, the board of directors declared a 3-for-1
stock split of the Company's common stock in the form of a stock
dividend. The record date for the split was January 3, 2011 and
the new shares were issued on January 17, 2011. All share and per
share information presented has been adjusted to reflect this stock
split.
The Company's operations are influenced by a number of external and
internal factors. External factors include levels of economic and
industrial activity in the United States and the Southeast, driver
availability and cost, regulations regarding driver qualifications
and hours of service, petroleum product usage in the Southeast
which is driven in part by tourism and commercial aviation, fuel
costs, construction activity, aggregates sales by lessees from the
Company's mining properties, interest rates, market conditions and
attendant prices for casualty insurance, demand for commercial
warehouse space in the Baltimore-Washington-Northern Virginia area,
and ability to obtain zoning and entitlements necessary for
property development. Internal factors include revenue mix,
capacity utilization, auto and workers' compensation accident
frequencies and severity, other operating factors, administrative
costs, group health claims experience, and construction costs of
new projects. There is a reasonable possibility that the Company's
estimate of vehicle and workers' compensation liability for the
transportation group or discontinued operations may be understated
or overstated but the possible range can not be estimated. The
liability at any point in time depends upon the relative ages and
amounts of the individual open claims. Financial results of the
Company for any individual quarter are not necessarily indicative
of results to be expected for the year.
Discontinued Operations. In August 2009 the Company sold its
flatbed trucking company, SunBelt Transport, Inc. ("SunBelt").
Under the agreement, the buyer purchased all of SunBelt's tractors
and trailers, leased the SunBelt terminal facilities in
Jacksonville, Florida for 36 months at a rental of $5,000 per month
and leased the terminal facilities in South Pittsburg, Tennessee
for 60 months at a rental of $5,000 per month with an option to
purchase the Tennessee facilities at the end of the lease for
payment of an additional $100,000. The South Pittsburg lease was
recorded as a sale under bargain purchase accounting. The purchase
price received for the tractors and trailers and inventories was a
$1 million cash payment and the delivery of a Promissory Note
requiring 60 monthly payments of $130,000 each including interest
at 7%, secured by the assets of the business conveyed. As of
September 30, 2011 the note receivable has been fully paid and the
option to purchase the South Pittsburg facility was completed. The
Company retained all pre-closing receivables and liabilities.
SunBelt has been accounted for as discontinued operations in
accordance with ASC Topic 205-20 Presentation of Financial
Statements - Discontinued Operations. All periods presented have
been restated accordingly.
In December 2010, a subsidiary of the Company, Florida Rock
Properties, Inc., closed a bargain sale of approximately 1,777
acres of land in Caroline County, Virginia, to the Commonwealth of
Virginia, Board of Game and Inland Fisheries. The purchase price
for the property was $5,200,000, subject to certain deductions.
The Company also donated $5,599,000 primarily for the value of
minerals and aggregates and recognized a $2,126,000 permanent tax
benefit. The $2,126,000 permanent tax benefit was recorded to
income taxes receivable for $303,000 and offset to long-term
deferred tax liabilities of $1,823,000. Actual realization of the
$1,823,000 in deferred taxes will depend on taxable income, income
tax rates, and income tax regulations over the 5 year carry forward
period. The Company's book value of the property was $276,000.
Caroline County has been accounted for as discontinued operations
in accordance with ASC Topic 205-20 Presentation of Financial
Statements - Discontinued Operations. All periods presented have
been restated accordingly.
Comparative Results of Operations for the Three months ended
March 31, 2012 and 2011
Consolidated Results - Net income for the second quarter of fiscal
2012 was $1,643,000 compared to $1,683,000 for the same period last
year. Diluted earnings per common share for the second quarter of
fiscal 2012 were $.17 compared to $.18 for the same quarter last
year. Transportation segment results were lower due to increased
workers compensation claim costs along with a sharp rise in fuel
costs, higher vehicle repairs, increased tire prices and cost of
growth initiatives partially offset by higher gains on equipment
sales and incremental profits on increased revenues. The mining
royalty land segment's results were higher due to an increase in
timber sales and reduced allocation of indirect management company
costs to this segment. The Developed property rentals segment's
results were higher due to higher occupancy and lower real estate
taxes partially offset by higher maintenance costs, professional
fees and allocation of indirect management company costs.
Transportation Results
Three months ended March 31
(dollars in thousands) ___2012 % 2011 %_
Transportation revenue $ 20,656 81% 18,885 82%
Fuel surcharges 4,793 19% 4,151 18%
Revenues 25,449 100% 23,036 100%
Compensation and benefits 9,280 37% 8,460 37%
Fuel expenses 6,216 24% 5,381 23%
Insurance and losses 1,601 6% 1,237 5%
Depreciation expense 1,677 7% 1,535 7%
Other, net 2,406 9% 2,157 9%
Sales, general & administrative 2,083 8% 1,874 8%
Allocated corporate expenses _____396 2% ___390 2%
Cost of operations 23,659 93% 21,034 91%
Operating profit $ 1,790 7% 2,002 9%
Transportation segment revenues were $25,449,000 in the second
quarter of 2012, an increase of $2,413,000 over the same quarter
last year. Revenue miles in the current quarter were up 6.4%
compared to the second quarter of fiscal 2011 due to business
growth and a longer average haul length. Fuel surcharge revenue
increased $642,000. Excluding fuel surcharges, revenue per mile
increased 3.0% over the same quarter last year. The average price
paid per gallon of diesel fuel increased by $.39 or 11.7% over the
same quarter in fiscal 2011.
The Transportation segment's cost of operations was $23,659,000 in
the second quarter of 2012, an increase of $2,625,000 over the same
quarter last year. The Transportation segment's cost of operations
in the second quarter of 2012 as a percentage of revenue was 93%
compared to 91% in the second quarter of 2011. Compensation and
benefits increased $820,000 or 9.7% compared to the same quarter
last year primarily due to a driver pay increase, the increase in
miles driven, and expenses associated with increased driver hiring.
Fuel surcharge revenue increased $642,000 while fuel cost
increased by $835,000 leaving a negative impact to operating profit
of $193,000. There is a time lag between changes in fuel prices
and surcharges and often fuel costs change more rapidly than the
market indexes used to determine fuel surcharges. Insurance and
losses increased $364,000 compared to the same quarter last year
primarily due to lower than expected workers compensation claim
costs in the same quarter last year. Depreciation expense
increased $142,000 due to more trucks in service. Other expense
increased $249,000 due to higher vehicle repair costs, increased
tire prices, increased miles driven, and growth initiatives
partially offset by higher gains on equipment sales and incremental
profits on increased revenues. Selling general and administrative
costs increased $209,000 or 11.1% compared to the same quarter last
year due to higher staffing and professional fees. Allocated
corporate expenses increased $6,000.
Mining Royalty Land Results
Three months ended March 31
(dollars in thousands) ___2012 % 2011 %_
Mining royalty land revenue $ 1,025 100% 918 100%
Property operating expenses 130 13% 133 14%
Depreciation and depletion 27 3% 26 3%
Management Company indirect 3 0% 41 4%
Allocated corporate expense 163 16% 152 17%
Cost of operations 323 32% 352 38%
Operating profit $ 702 68% 566 62%
Mining royalty land segment revenues for the second quarter of
fiscal 2012 were $1,025,000, an increase of $107,000 or 11.7% over
the same quarter last year due primarily to a $62,000 increase in
timber sales.
The mining royalty land segment's cost of operations was $323,000
in the second quarter of 2012, a decrease of $29,000 over the same
quarter last year due primarily to reduced allocation of indirect
management company costs to this segment. Allocated corporate
expenses increased $11,000.
Developed Property Rentals Results
Three months ended March 31
(dollars in thousands) ___2012 % 2011 %_
Developed property rentals revenue $ 4,852 100% 4,636 100%
Property operating expenses 1,228 26% 1,591 34%
Depreciation and amortization 1,373 28% 1,316 28%
Management Company indirect 494 10% 364 8%
Allocated corporate expense 246 5% 228 5%
Cost of operations 3,341 69% 3,499 75%
Operating profit $ 1,511 31% 1,137 25%
Developed property rentals segment revenues for the second quarter
of fiscal 2012 were $4,852,000, an increase of $216,000 or 4.7% due
to higher occupancy. Occupancy at March 31, 2012 was 86.0% as
compared to 77.2% at March 31, 2011.
Developed property segment's cost of operations was $3,341,000 in
the second quarter of 2012, a decrease of $158,000 or 4.5% over the
same quarter last year. Property operating expenses decreased
$363,000 due to lower real estate taxes and snow removal costs
partially offset by higher maintenance costs and professional fees.
Depreciation and amortization increased $57,000 primarily due to
tenant improvements. Management Company indirect expenses
(excluding internal allocations for lease related property
management fees) increased $130,000 due to increased allocation to
this segment and growth initiatives. Allocated corporate expenses
increased $18,000.
Consolidated Results
Operating Profit - Consolidated operating profit was $3,444,000 in
the second quarter of fiscal 2012, an increase of $260,000 or 8.2%
compared to $3,184,000 in the same period last year. Operating
profit in the transportation segment decreased $212,000 or 10.6%
primarily due to increased workers compensation claim costs along
with a sharp rise in fuel costs, higher vehicle repairs, increased
tire prices, and cost of growth initiatives partially offset by
higher gains on equipment sales and incremental profits on
increased revenues. Operating profit in the mining royalty land
segment increased $136,000 or 24.0% due to an increase in timber
sales and reduced allocation of indirect management company costs
to this segment. Operating profit in the Developed property
rentals segment increased $374,000 or 32.9% due to higher occupancy
and lower real estate taxes partially offset by higher maintenance
costs, professional fees and allocation of indirect management
company costs. Consolidated operating profit includes corporate
expenses not allocated to any segment in the amount of $559,000 in
the second quarter of fiscal 2012, an increase of $38,000 compared
to the same period last year.
Interest income and other - Interest income and other decreased
$87,000 over the same quarter last year due to the prepayment of
notes receivable from the sale of SunBelt Transport.
Interest expense - Interest expense decreased $44,000 over the same
quarter last year due to declining mortgage interest expense and
higher capitalized interest.
Income taxes - Income tax expense increased $84,000 over the same
quarter last year due to higher earnings from continuing
operations.
Income from continuing operations - Income from continuing
operations was $1,639,000 or $.17 per diluted share in the second
quarter of fiscal 2012, an increase of 8.9% compared to $1,505,000
or $.16 per diluted share for the same period last year. The
$134,000 increase was primarily due to the $260,000 increase in
operating profits offset by higher income taxes.
Discontinued operations - The after tax income from discontinued
operations for the second quarter of fiscal 2012 was $4,000 versus
income of $178,000 for the same period last year. Diluted earnings
per share on discontinued operations for the second quarter of
fiscal 2012 was $.00 compared to $.02 in the second quarter of
fiscal 2011. The discontinued operations results are primarily due
to lower than expected retained liabilities and losses from prior
year operations.
Net income - Net income for the second quarter of fiscal 2012 was
$1,643,000 compared to $1,683,000 for the same period last year.
Diluted earnings per common share for the second quarter of fiscal
2012 were $.17 compared to $.18 for the same quarter last year.
Transportation segment results were lower due to increased workers
compensation claim costs along with a sharp rise in fuel costs,
higher vehicle repairs, increased tire prices and cost of growth
initiatives partially offset by higher gains on equipment sales and
incremental profits on increased revenues. The mining royalty land
segment's results were higher due to an increase in timber sales
and reduced allocation of indirect management company costs to this
segment. The Developed property rentals segment's results were
higher due to higher occupancy and lower real estate taxes
partially offset by higher maintenance costs, professional fees and
allocation of indirect management company costs.
Comparative Results of Operations for the Six months ended March
31, 2012 and 2011
Consolidated Results - Net income for the first six months of
fiscal 2012 was $3,767,000 compared to $8,078,000 for the same
period last year. Diluted earnings per common share for the first
six months of fiscal 2012 were $.40 compared to $.85 in the first
six months of fiscal 2011. Income from continuing operations
increased $791,000 primarily due to a gain of $1,039,000 on the
receipt of non-refundable deposits related to the termination of an
agreement to sell the Company's Windlass Run Residential property.
Income from discontinued operations favorably impacted net income
in fiscal 2011 due to a book gain on the exchange of property of
$4,926,000 after tax or $.52 per diluted share. Transportation
segment results were lower due to increased workers compensation
and health insurance claims along with a sharp rise in fuel costs,
higher vehicle repairs, increased tire prices and cost of growth
initiatives partially offset by higher gains on equipment sales and
incremental profits on increased revenues. The mining royalty land
segment's results were higher due to reduced allocation of indirect
management company costs to this segment. The Developed property
rentals segment's results were higher due to higher occupancy and
lower real estate taxes partially offset by higher maintenance
costs and professional fees.
Transportation Results
Six months ended March 31
(dollars in thousands) ___2012 % 2011 %_
Transportation revenue $ 40,972 81% 38,509 84%
Fuel surcharges 9,318 19% 7,518 16%
Revenues 50,290 100% 46,027 100%
Compensation and benefits 18,062 36% 16,914 36%
Fuel expenses 12,096 24% 10,127 22%
Insurance and losses 3,596 7% 2,886 6%
Depreciation expense 3,252 7% 3,041 7%
Other, net 5,170 10% 4,407 10%
Sales, general & administrative 4,090 8% 3,883 8%
Allocated corporate expenses _____791 2% ___779 2%
Cost of operations 47,057 94% 42,037 91%
Operating profit $ 3,233 6% 3,990 9%
Transportation segment revenues were $50,290,000 in the first six
months of fiscal 2012, an increase of $4,263,000 over the same
period last year. Revenue miles in the first six months of fiscal
2012 were up 4.1% compared to the first six months of fiscal 2011
due to business growth and a longer average haul length. Fuel
surcharge revenue increased $1,800,000. Excluding fuel surcharges,
revenue per mile increased 2.1% over the same period last year.
The average price paid per gallon of diesel fuel increased by $.54
or 17.1% over the same period in fiscal 2011.
The Transportation segment's cost of operations was $47,057,000 in
the first six months of fiscal 2012, an increase of $5,020,000 over
the same period last year. The Transportation segment's cost of
operations in the first six months of fiscal 2012 as a percentage
of revenue was 94% compared to 91% in the first six months of
fiscal 2011. Compensation and benefits increased $1,148,000 or
6.8% compared to the same period last year primarily due to a
driver pay increase, the increase in miles driven and expenses
associated with increased driver hiring. Fuel surcharge revenue
increased $1,800,000 while fuel cost increased by $1,969,000
leaving a negative impact to operating profit of $169,000. There is
a time lag between changes in fuel prices and surcharges and often
fuel costs change more rapidly than the market indexes used to
determine fuel surcharges. Insurance and losses increased $710,000
compared to the same period last year primarily due to lower than
expected workers compensation and health insurance claims in the
same period last year. Depreciation expense increased $211,000 due
to more trucks in service. Other expense increased $763,000 due to
higher vehicle repair costs, increased tire prices, increased miles
driven, and growth initiatives partially offset by higher gains on
equipment sales and incremental profits on increased revenues.
Selling general and administrative costs increased $207,000
compared to the same period last year. Allocated corporate
expenses increased $12,000.
Mining Royalty Land Results
Six months ended March 31
(dollars in thousands) ___2012 % 2011 %_
Mining royalty land revenue $ 2,002 100% 2,013 100%
Property operating expenses 229 12% 257 13%
Depreciation and depletion 59 3% 51 2%
Management Company indirect 1 0% 78 4%
Allocated corporate expense 327 16% 305 15%
Cost of operations 616 31% 691 34%
Operating profit $ 1,386 69% 1,322 66%
Mining royalty land segment revenues for the first six months of
fiscal 2012 were $2,002,000, a decrease of $11,000 or .5% over the
same period last year, due to a shift in production at two
locations reducing the share of mining on the property owned by the
Company offset by higher timber sales.
The mining royalty land segment's cost of operations was $616,000
in the first six months of fiscal 2012, a decrease of $75,000 over
the same period last year due primarily to reduced allocation of
indirect management company costs to this segment. Allocated
corporate expenses increased $22,000.
Developed Property Rentals Results
Six months ended March 31
(dollars in thousands) ___2012 % 2011 %_
Developed property rentals revenue $ 9,393 100% 8,813 100%
Property operating expenses 2,444 26% 2,872 32%
Depreciation and amortization 2,714 29% 2,617 30%
Management Company indirect 854 9% 699 8%
Allocated corporate expense 491 5% 457 5%
Cost of operations 6,503 69% 6,645 75%
Operating profit $ 2,890 31% 2,168 25%
Developed property rentals segment revenues for the first six
months of fiscal 2012 were $9,393,000, an increase of $580,000 or
6.6% due to higher occupancy. Occupancy at March 31, 2012 was
86.0% as compared to 77.2% at March 31, 2011.
Developed property segment's cost of operations was $6,503,000 in
the first six months of fiscal 2012, a decrease of $142,000 or 2.1%
over the same period last year. Property operating expenses
decreased $428,000 due to lower real estate taxes and snow removal
costs partially offset by higher maintenance costs and professional
fees. Depreciation and amortization increased $97,000 primarily
due to tenant improvements. Management Company indirect expenses
(excluding internal allocations for lease related property
management fees) increased $155,000 due to increased allocation to
this segment and growth initiatives. Allocated corporate expenses
increased $34,000.
Consolidated Results
Operating Profit - Consolidated operating profit was $6,658,000 in
the first six months of fiscal 2012, an increase of $286,000 or
4.5% compared to $6,372,000 in the same period last year.
Operating profit in the transportation segment decreased $757,000
or 19.0% primarily due to increased workers compensation and health
insurance claims along with a spike in fuel costs, higher vehicle
repairs, increased tire prices and cost of growth initiatives
partially offset by higher gains on equipment sales and incremental
profits on increased revenues. Operating profit in the mining
royalty land segment increased $64,000 or 4.8% primarily due to
reduced allocation of indirect management company costs to this
segment. Operating profit in the Developed property rentals
segment increased $722,000 or 33.3% due to higher occupancy and
lower real estate taxes partially offset by increased maintenance
costs and professional fees. Consolidated operating profit
includes corporate expenses not allocated to any segment in the
amount of $851,000 in the first six months of fiscal 2012, a
decrease of $257,000 compared to the same period last year which
included an adjustment to the fair value of the corporate aircraft
of $300,000.
Gain on termination of sale contract - The first six months of
fiscal 2012 includes a gain of $1,039,000 on the receipt of non-
refundable deposits related to the termination of an agreement to
sell the Company's Windlass Run Residential property.
Interest income and other - Interest income and other decreased
$180,000 over the same period last year due to the prepayment of
notes receivable from the sale of SunBelt Transport.
Interest expense - Interest expense decreased $146,000 over the
same period last year due to declining mortgage interest expense
and higher capitalized interest.
Income taxes - Income tax expense increased $494,000 over the same
period last year due to higher earnings from continued operations.
Income from continuing operations - Income from continuing
operations was $3,764,000 or $.40 per diluted share in the first
six months of fiscal 2012, an increase of 26.6% compared to
$2,973,000 or $.31 per diluted share for the same period last year.
The $791,000 increase was primarily due to a pretax gain of
$1,039,000 on the receipt of non-refundable deposits related to the
termination of an agreement to sell the Company's Windlass Run
Residential property.
Discontinued operations - The after tax income from discontinued
operations for the first six months of fiscal 2012 was $3,000
versus income of $5,105,000 for the same period last year. Diluted
earnings per share on discontinued operations for the first six
months of fiscal 2012 was $.00 compared to $.54 in the first six
months of fiscal 2011. The first six months of fiscal 2011
included a book gain on the exchange of property of $4,926,000
after tax or $.52 per diluted share.
Net income - Net income for the first six months of fiscal 2012 was
$3,767,000 compared to $8,078,000 for the same period last year.
Diluted earnings per common share for the first six months of
fiscal 2012 were $.40 compared to $.85 in the first six months of
fiscal 2011. Income from continuing operations increased $791,000
primarily due to a gain of $1,039,000 on the receipt of non-
refundable deposits related to the termination of an agreement to
sell the Company's Windlass Run Residential property. Income from
discontinued operations favorably impacted net income in fiscal
2011 due to a book gain on the exchange of property of $4,926,000
after tax or $.52 per diluted share. Transportation segment
results were lower due to increased workers compensation and health
insurance claims along with a sharp rise in fuel costs, higher
vehicle repairs, increased tire prices and cost of growth
initiatives partially offset by higher gains on equipment sales and
incremental profits on increased revenues. The mining royalty land
segment's results were higher due to reduced allocation of indirect
management company costs to this segment. The Developed property
rentals segment's results were higher due to higher occupancy and
lower real estate taxes partially offset by higher maintenance
costs and professional fees.
Liquidity and Capital Resources. For the first six months of fiscal
2012, the Company used cash provided by operating activities of
continuing operations of $8,437,000, proceeds from the sale of
plant, property and equipment of $1,609,000, proceeds from the
exercise of employee stock options of $671,000, excess tax benefits
from the exercise of stock options of $353,000, and cash balances
to purchase $5,403,000 in transportation equipment, to expend
$4,046,000 in real estate development, to invest $70,000 in the
Brooksville Joint Venture, to make $2,410,000 scheduled payments on
long-term debt and to repurchase Company stock for $137,000. Cash
provided by the operating activities of discontinued operations was
$7,000. Cash decreased $989,000.
Cash flows from operating activities for the first six months of
fiscal 2012 were $733,000 lower than the same period last year
primarily due to increased income tax payments.
Cash flows used in investing activities for the first six months of
fiscal 2012 were $1,107,000 higher reflecting the increased
purchase of transportation equipment for growth and replacement
partially offset by a pretax gain of $1,039,000 on the receipt of
non-refundable deposits related to the termination of an agreement
to sell the Company's Windlass Run Residential property.
Cash flows used in financing activities for the first six months of
fiscal 2012 were $1,378,000 lower than the same period last year
due to lower repurchases of Company stock.
In August 2009 the Company sold its flatbed trucking company,
SunBelt Transport, Inc. ("SunBelt"). The purchase price received
for the tractors and trailers and inventories was a $1 million cash
payment and the delivery of a Promissory Note requiring 60 monthly
payments of $130,000 each including 7% interest, secured by the
assets of the business conveyed. As of September 30, 2011 the note
receivable was fully paid and the option to purchase the South
Pittsburg facility was completed. The Company retained all pre-
closing receivables and liabilities. SunBelt has been accounted
for as discontinued operations. All periods presented have been
restated accordingly.
In December 2010, a subsidiary of the Company, Florida Rock
Properties, Inc., closed a bargain sale of approximately 1,777
acres of land in Caroline County, Virginia, to the Commonwealth of
Virginia, Board of Game and Inland Fisheries. The purchase price
for the property was $5,200,000, subject to certain deductions.
The Company also donated $5,599,000 primarily for the value of
minerals and aggregates and recognized a $2,126,000 permanent tax
benefit. The $2,126,000 permanent tax benefit was recorded to
income taxes receivable for $303,000 and offset to long-term
deferred tax liabilities of $1,823,000. Actual realization of the
$1,823,000 in deferred taxes will depend on taxable income, income
tax rates, and income tax regulations over the 5 year carry forward
period. The Company's book value of the property was $276,000.
The Caroline County property has been accounted for as a
discontinued operation and all periods presented have been restated
accordingly. The Company used all the proceeds in a 1031 exchange
to purchase Hollander 95 Business Park in a foreclosure sale
auction through a qualified intermediary. Hollander 95 Business
Park, in Baltimore City, Maryland, closed on October 22, 2010 by a
1031 intermediary for a purchase price totaling $5,750,000. This
property consists of an existing 82,800 square foot warehouse
building (33.8% occupied) with an additional 42 acres of partially
developed land with a development capacity of 490,000 square feet
(a mix of warehouse, office, hotel and flex buildings).
The Company has a $37,000,000 uncollateralized Revolving Credit
Agreement with three banks, which matures on December 13, 2013.
The Revolver contains limitations on availability and restrictive
covenants including limitations on paying cash dividends. Letters
of credit in the amount of $12,082,000 were issued under the
Revolver. As of March 31, 2012, $24,918,000 was available for
borrowing and $53,947,000 of consolidated retained earnings would
be available for payment of dividends. The Company was in
compliance with all covenants as of March 31, 2012.
The Company had $12,082,000 of irrevocable letters of credit
outstanding as of March 31, 2012. Most of the letters of credit
are irrevocable for a period of one year and are automatically
extended for additional one-year periods until notice of non-
renewal is received from the issuing bank not less than thirty days
before the expiration date. These were issued for insurance
retentions and to guarantee certain obligations to state agencies
related to real estate development. The Company issued replacement
letters of credit through the Revolver to reduce fees.
The Board of Directors has authorized Management to repurchase
shares of the Company's common stock from time to time as
opportunities arise. During the first six months of fiscal 2012
the Company repurchased 7,013 shares for $137,000. As of March 31,
2012, $4,093,000 was authorized for future repurchases of common
stock. The Company does not currently pay any cash dividends on
common stock.
The Company has committed to make additional capital contributions
of up to $86,000 to Brooksville Quarry, LLC in connection with a
joint venture with Vulcan.
While the Company is affected by environmental regulations, such
regulations are not expected to have a major effect on the
Company's capital expenditures or operating results.
Summary and Outlook. Transportation segment miles for this year
were 4.1% higher than last year. The Company continues to succeed
in adding drivers and customers and anticipates increasing segment
miles during fiscal 2012.
Developed property rentals occupancy has increased from 79.8% to
86.0% over last fiscal year end as the market for new tenants has
improved and traffic for vacant space has increased. Occupancy at
March 31, 2012 and 2011 included 104,226 square feet or 3.6% and
118,156 square feet or 4.0% respectively for temporary storage
under a less than full market lease rate. Occupancy at March 31,
2012 was unfavorably impacted by vacancies representing 10.7% of
the entire portfolio at two buildings in Delaware which were
impacted by automobile plant closings and the residential housing
downturn and the two parks that each has only one building
completed. The Company has resumed development of Patriot Business
Park effective April 1, 2012 due to two recent developments. On
February 15, 2012, the Company signed an agreement to sell 15.18
acres of land at the site for a purchase price of $4,774,577 which
would result in a profit on the sale if completed. The Company also
entered into a build to suit lease signed April 2 for a 117,600
square foot building.
With cap rates at historically low levels we have engaged the
real estate brokerage firm of Jones, Lang, LaSalle to explore
the market value of our existing office/warehouse portfolio in
the investment community. We have no preconceived decision
regarding the outcome of this exploration but will analyze
the results we receive and make our decision at the time in
keeping with our continuing effort to manage this Company's
capital in the most efficient manner possible for the longer
term.
Windlass Run Residential (previously Bird River), located in
southeastern Baltimore County, Maryland, is a 121 acre tract of
land adjacent to and west of our Windlass Run Business Park. The
property was rezoned in September 2007 to allow for additional
density and plans are being pursued to obtain an appropriate
product mix. In July 2008, the Company entered into an agreement
to sell the property at a purchase price of $25,075,000 and closing
was scheduled to occur in the first quarter of calendar 2012. The
purchaser had placed non-refundable deposits of $1,000,000 under
this contract in escrow. Preliminary approval for the development
as originally contemplated was previously received and the time for
any appeals from that approval has expired. In October 2011 the
purchaser terminated its agreement to purchase the property and
released the $1,000,000 escrow deposit to the company's subsidiary,
FRP Bird River, LLC. along with all permits, engineering work,
plans and other development work product with regards to the
property. The Company intends to continue to complete the
entitlement process for this parcel of land for residential
development and will market it appropriately as the demand for
residential property in this area improves in the future.
In March 30, 2012 the Company entered into a Contribution Agreement
with MRP SE Waterfront Residential, LLC. ("MRP") to form a joint
venture to develop the phase I of the four phase master development
known as RiverFront on the Anacostia in Washington, D.C. The
purpose of the Joint Venture is to develop, own, lease and
ultimately sell an approximately 300,000 square foot residential
apartment building (including some retail) on a portion of the
roughly 5.82 acres of land owned by FRP adjacent to the Washington
Nationals baseball stadium. The Contribution Agreement provides
that the formation of the Joint Venture will be subject to
customary conditions precedent, including approval of a planned
unit development zoning modification and extension of the existing
PUD to provide for approximately 300,000 square feet of residential
development (including some retail) on the Property in lieu of
250,000 square feet of commercial office space (including some
retail) as currently approved for phase 1 of the master
development. If these conditions are satisfied, the parties will
enter into a formal joint venture agreement wherein the Company
will contribute the land comprising phase I to the joint venture in
return for approximately a fifty percent (50%) interest in the
venture. MRP will contribute capital of $4,500,000 to the joint
venture. MRP will raise any additional equity capital (currently
estimated to be $9,000,000, subject to revision based on various
factors) and obtain a nonrecourse loan for the balance of the
estimated construction and lease up costs. At this point the
Company anticipates commencement of construction in early 2014 with
lease up scheduled between late 2015 and all of 2016.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISKS
The Company is exposed to market risk from changes in interest
rates. For its cash and cash equivalents, a change in interest
rates affects the amount of interest income that can be earned.
For its debt instruments with variable interest rates, changes in
interest rates affect the amount of interest expense incurred. The
Company prepared a sensitivity analysis of its cash and cash
equivalents to determine the impact of hypothetical changes in
interest rates on the Company's results of operations and cash
flows. The interest-rate analysis assumed a 50 basis point adverse
change in interest rates on all cash and cash equivalents.
However, the interest-rate analysis did not consider the effects of
the reduced level of economic activity that could exist in such an
environment. Based on this analysis, management has concluded that
a 50 basis point adverse move in interest rates on the Company's
cash and cash equivalents would have an immaterial impact on the
Company's results of operations and cash flows.
ITEM 4. CONTROLS AND PROCEDURES
The Company maintains disclosure controls and procedures that are
designed to ensure that information required to be disclosed in the
Company's reports under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), is recorded, processed, summarized
and reported within the time periods specified in the SEC's rules
and forms, and that such information is accumulated and
communicated to management, including the Company's Chief Executive
Officer ("CEO"), Chief Financial Officer ("CFO"), and Chief
Accounting Officer ("CAO"), as appropriate, to allow timely
decisions regarding required disclosure.
The Company also maintains a system of internal accounting controls
over financial reporting that are designed to provide reasonable
assurance to the Company's management and Board of Directors
regarding the preparation and fair presentation of published
financial statements.
All control systems, no matter how well designed, have inherent
limitations. Therefore, even those systems determined to be
effective can provide only reasonable assurance of achieving the
desired control objectives.
As of March 31, 2012, the Company, under the supervision and with
the participation of the Company's management, including the CEO,
CFO and CAO, carried out an evaluation of the effectiveness of the
design and operation of the Company's disclosure controls and
procedures. Based on this evaluation, the Company's CEO, CFO and
CAO concluded that the Company's disclosure controls and procedures
are effective in alerting them in a timely manner to material
information required to be included in periodic SEC filings.
There have been no changes in the Company's internal controls over
financial reporting during the first six months that have
materially affected, or are reasonably likely to materially affect,
the Company's internal control over financial reporting.
PART II. OTHER INFORMATION
Item 1A. RISK FACTORS
In addition to the other information set forth in this report,
you should carefully consider the factors discussed in Part I,
"Item 1A. Risk Factors" in our Annual Report on Form 10-K for the
year ended September 30, 2011, which could materially affect our
business, financial condition or future results. The risks
described in our Annual Report on Form 10-K are not the only
risks facing our Company. Additional risks and uncertainties not
currently known to us or that we currently deem to be immaterial
also may materially adversely affect our business, financial
condition and/or operating results.
Item 2. PURCHASES OF EQUITY SECURITIES BY THE ISSUER
(c)
Total
Number of
Shares (d)
Purchased Approximate
(a) As Part of Dollar Value of
Total (b) Publicly Shares that May
Number of Average Announced Yet Be Purchased
Shares Price Paid Plans or Under the Plans
Period Purchased per Share Programs or Programs (1)
January 1
through
January 31 0 $ - 0 $ 4,093,000
February 1
through
February 29 0 $ - 0 $ 4,093,000
March 1
through
March 31 0 $ - 0 $ 4,093,000
Total 0 $ - 0
(1) In December, 2003, the Board of Directors authorized
management to expend up to $6,000,000 to repurchase shares of the
Company's common stock from time to time as opportunities arise.
On February 19, 2008, the Board of Directors authorized
management to expend up to an additional $5,000,000 to repurchase
shares of the Company's common stock from time to time as
opportunities arise.
Item 6. EXHIBITS
(a) Exhibits. The response to this item is submitted as a
separate Section entitled "Exhibit Index", on page 31.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this Report to be signed on
its behalf by the undersigned thereunto duly authorized.
May 2, 2012 PATRIOT TRANSPORTATION HOLDING, INC.
Thompson S. Baker II
Thompson S. Baker II
President and Chief Executive
Officer
John D. Milton, Jr.
John D. Milton, Jr.
Executive Vice President, Treasurer,
Secretary and Chief
Financial Officer
John D. Klopfenstein
John D. Klopfenstein
Controller and Chief
Accounting Officer
PATRIOT TRANSPORTATION HOLDING, INC.
FORM 10-Q FOR THE QUARTER ENDED MARCH 31, 2012
EXHIBIT INDEX
(10)(r) Joint Venture Agreement between Florida Rock
Properties, Inc. and MRP SE Waterfront Residential, Inc.,
incorporated by reference to an exhibit filed with Form 10-Q
for the quarter ended March 31, 2012. File No. 000-17554.
(14) Financial Code of Ethical Conduct between the Company,
Chief Executive Officers and Financial Managers, as
revised on January 28, 2004, which is available on the
Company's website at www.patriottrans.com.
(31)(a) Certification of Thompson S. Baker II.
(31)(b) Certification of John D. Milton, Jr.
(31)(c) Certification of John D. Klopfenstein.
(32) Certification of Chief Executive Officer, Chief
Financial Officer, and Chief Accounting Officer under
Section 906 of the Sarbanes-Oxley Act of 2002.
101.INS XBRL Instance Document
101.XSD XBRL Taxonomy Extension Schema
101.CAL XBRL Taxonomy Extension Calculation Linkbase
101.DEF XBRL Taxonomy Extension Definition Linkbase
101.LAB XBRL Taxonomy Extension Label Linkbase
101.PRE XBRL Taxonomy Extension Presentation Linkbase
EX-10
2
contributionagreement.txt
MRP JOINT VENTURE AGREEMENT
Exhibit 10.1
Execution Copy
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT ("Agreement") is made as of March
30, 2012 ("Contract Date"), between (i) Florida Rock Properties, Inc., a Florida
corporation ("FRP"), and (ii) MRP SE Waterfront Residential, LLC, a District
of Columbia limited liability company ("MRP").
ARTICLE 1. INTERPRETATION
1.1 Definitions. For purposes of this Agreement, the following
capitalized terms shall have the meanings indicated:
1.1.1 Access Agreement: that certain Access Agreement dated as of
the date hereof between FRP and MRP.
1.1.2 Action: any action, suit, arbitration, governmental
investigation or other legal proceeding.
1.1.3 Actual Knowledge: actual, conscious (and non-constructive)
knowledge of a Person, which, if such Person is FRP, an FRP affiliate or
an FRP Representative, will be limited to FRP's Knowledge, and if the
Person is MRP, MRP Designee, an MRP Representative or an MRP
Affiliate, will be limited to MRP's Knowledge.
1.1.4 Agreement: as defined in the Preamble.
1.1.5 Apportionment Time: 12:01 a.m. local Washington, D.C.
time on the Closing Date.
1.1.6 A&T Lot: the separate assessment and taxation lot that
will be created for the Company Parcel.
1.1.7 Ballpark District: the area bounded by the Anacostia
River to the South, the Southwest Freeway to the North, South
Capitol Street to the West and 8th Street SE to the East.
1.1.8 Business Day: any Monday through Friday on which
commercial banks are authorized to do business and are not required
by law or executive order to close in the District of Columbia.
1.1.9 Cap: as defined in Section 10.2.8.
1.1.10 Cleanup Standard: the lowest cost alternative (unless
otherwise agreed to by the parties) to address, remediate or dispose
of any Known Hazardous Substance or any materials (such as soil,
other solid materials or water) impacted by any Known Hazardous
Substances, provided that such alternative (i) is commercially
reasonable and available, (ii) is approved by all Governmental
Authorities with jurisdiction over such matters if such approval is
required, and (iii) complies with applicable Environmental Laws.
1.1.11 Closing: the consummation of the transactions
contemplated by this Agreement
..
1.1.12 Closing Date: the date on which Closing occurs.
1.1.13 Code: the Internal Revenue Code of 1986, as amended.
1.1.14 Collateral Assignment of Development Work Product: as
defined in Section 3.5.
1.1.15 Company: Riverfront Investment Partners I LLC, a
Delaware limited liability company.
1.1.16 Company Agreement: the Limited Liability Company
Agreement of the Company to be entered into by MRP and FRP
(or any FRP Affiliate) at Closing in substantially the form attached
hereto as Exhibit C.
1.1.17 Company Parcel: that portion of the Site generally
depicted on Exhibit A attached hereto, together with all right, title
and interest of FRP in and to (i)all rights, ways, easements,
privileges and appurtenances to such parcel, (ii)all strips and
gores appurtenant to such parcel, and (iii)any land lying in the
bed of any streets, roads and alleys appurtenant to such parcel.
1.1.18 Confidential FRP Information: as defined in Section
12.5.1.
1.1.19 Confidential MRP Information: as defined in Section
2.5.3.
1.1.20 Consultants: as defined in Section 3.3.
1.1.21 Contract Date: as defined in the Preamble.
1.1.22 Control (Controlled; Controlling): the possession,
directly or indirectly, of the power to direct or cause the direction
of the management and policies of such Person, through the
ownership of voting securities, by contract or otherwise.
1.1.23 Current Year Tax Appeal: as defined in Section
9.3.
1.1.24 Damages: out of pocket damages, liabilities,
losses, claims, costs and expenses (including reasonable attorneys'
fees and expenses), excluding consequential and punitive damages.
1.1.25 Deed: as defined in Section 8.3.1.
1.1.26 Developer: Midatlantic Realty Partners, LLC, a
Virginia limited liability company, which is an Affiliate of MRP.
1.1.27 Development Agreement: as defined in Section 3.2.
1.1.28 Development Costs: all Pre-Closing Development
Costs and Post-Closing Development Costs. Notwithstanding the
foregoing, both Pre-Closing Development Costs and Post-Closing
Development Costs shall specifically exclude all (a) Due Diligence
Costs, (b) attorney's and other advisor's fees and expenses
incurred by MRP in connection with the negotiation of this
Agreement and/or the transaction described herein (other than the
fees of Zoning and Land Use Counsel or such other zoning and
land use counsel as may be approved by FRP pursuant to
Section 3.3), and (c) overhead or personnel costs of MRP.
1.1.29 Development Work Product: collectively, the
full right, title and interest of MRP (or any affiliate of MRP) in
(a) all studies, tests, reports and investigations relating to the
Site or the design, development, construction, operation,
management or use of the Site, (b) all plans, drawings,
specifications, site plans, plats, renderings and other
architectural or engineering documents related to the Site or
the design, development, construction, operation, management
or use of the Site, (c) all contracts, agreements and purchase
orders with any Person for the preparation of any of the
materials described in the foregoing clauses (a) or (b), (d) all
licenses, permits, approvals, authorizations, and permissions
relating to the Site or the design, development, construction,
operation, management or use of the Site, (e) all applications
for Zoning Approval and the approvals of any other
Governmental Authority or other third party in connection
with the Site or the design, development, construction,
operation, management or use of the Site, and (f) to the
extent not otherwise covered by the foregoing clauses (a)-(e),
all entitlements and general intangibles relating to the
Site or the design, development, operation, management and
use of the Site.
1.1.30 Due Diligence Costs: costs incurred by MRP in connection with
its due diligence and investigation of the Site and the Company Parcel prior to
the Contract Date.
1.1.31 Environmental Laws: all Legal Requirements in effect as of
the Contract Date relating to the protection of the environment or to human
health, or regulating the manufacture, use or disposal of Hazardous
Substances.
1.1.32 Escrow Agent: as defined in Section 8.2.
1.1.33 Existing LUST Case: as defined in Section 4.3.3.
1.1.34 Existing PUD: the PUD for the Site approved by Zoning
Commission Order No. 910-B (Case No. 01-31TE/98-17F/95-16P), as
amended pursuant to Zoning Commission Order No. 04-14A
(Case No. 04-14A).
1.1.35 Extended Outside Closing Date: January 31, 2014, as may
be extended as a result of FRP Delay pursuant to Section 3.1.3(c).
1.1.36 Force Majeure Event: any act of God, war, riot, civil
insurrection, cyclone, hurricane, flood, fire, explosion, earthquake, storm,
epidemic, plague, act of terrorism, Processing Delay, strike or labor unrest,
shortage of labor or materials despite reasonable diligence, and any other
cause that is not within the reasonable control of MRP (or any affiliate
thereof) so long as such act or event, in each case, (a) was not due to
the default of MRP under this Agreement or the negligence of MRP or
any affiliate of MRP, (b) was not reasonably foreseeable and avoidable
through the exercise of commercially reasonable efforts by MRP or any
affiliate of MRP, (c) was not caused, in whole or in substantial part, by
MRP's failure to use commercially reasonable efforts, (d) results in delay
in MRP performing an obligation or achieving a milestone date otherwise
provided for herein, and (e) is identified by MRP to FRP in writing as a
potential Force Majeure Event within five (5) Business Days after MRP
first has Actual Knowledge or notice of the occurrence thereof (and the
potential of such occurrence to impact the Zoning Approval Schedule or
otherwise result in a performance delay).
1.1.37 FRP: as defined in the Preamble.
1.1.38 FRP Affiliate: shall mean FRP or any entity Controlled,
Controlling or under common Control with FRP.
1.1.39 FRP Delay: any actual delay in seeking, processing or
obtaining the Zoning Approval occurring as a result of FRP's failure
(either directly or through any FRP Representative) to comply with
its obligations under this Agreement, including FRP's failure to
approve or disapprove, within the time period allotted herein (and
subject to the standards provided herein in relation to any such
request for approval) (1) any formal submissions, supporting
documentation or responses provided or required in connection
with the parties' Initial PUD Modification Application, and/or
any modifications or changes thereto, and/or (2) any other plan,
document or other item which is subject to FRP's approval under
this Agreement and which impacts any of the milestone dates
provided for under the Zoning Approval Schedule (and including
the failure after such approval is given to execute or deliver
documentation necessary to process such modification or plan
submission with applicable governmental authorities).
Notwithstanding anything to the contrary in this Agreement:
(a) in no event shall an FRP Delay include FRP's
failure to approve or disapprove (1) any extension under the
Zoning Approval Schedule, or (2) any increases in amounts
provided for under the Pre-Development Budget or the Project
Budget, to the extent such extension or budget increase (i) is
rendered necessary, or sought by MRP, as a result of MRP's
failure to comply with its obligations under this Agreement, or
(ii) is in accordance with the approval standards provided for
under this Agreement;
(b) for MRP to obtain the benefit of any extension
of the Outside Closing Date due to FRP Delay, MRP shall be
required to provide notice of such failure to FRP within ten
(10) days after MRP has Actual Knowledge or notice
thereof, and, subject to subparagraphs (c) and (d), FRP shall
be afforded an opportunity to cure such failure;
(c) if a request that FRP approve any matter required
hereunder is
provided in the form of a Qualifying Approval Notice, then any
delay in achieving satisfaction of the Zoning Approval Condition
which results from FRP's failure to respond to such Qualifying
Approval Notice shall be measured as of the date such approval
was originally required to be provided by FRP under the terms of
such Qualifying Approval Notice; and
(d) if a request that FRP approve any matter required
hereunder is not provided in the form of a Qualifying Approval
Notice, or if FRP fails to comply with its obligations under this
Agreement, then in order for the same to constitute an FRP Delay,
MRP shall be required to give FRP written notice of the
applicable failure within ten (10) days after MRP has Actual
Knowledge or notice thereof, and any FRP Delay shall, in such
event, be measured beginning on the second business day after the
date of MRP's written notice of such failure to FRP, and shall
continue until the applicable FRP Delay ceases.
1.1.40 FRP Indemnified Parties: as defined in Section
11.4.2.
1.1.41 FRP Representative: any employee, agent, consultant,
representative or contractor of FRP in connection with any matters
that are within the scope of this Agreement and the LLC Agreement.
1.1.42 FRP's Knowledge: the actual current knowledge of
the Persons listed on Schedule 1.1.42, without any obligation to
review any files or make inquiry of any Person. No knowledge of any
other Person shall be imputed to FRP.
1.1.43 Governmental Authority: the federal or District of
Columbia government, including any agency, bureau, department
or subdivision thereof, or independent commission or authority
constituted thereby.
1.1.44 Gross Floor Area: as defined in the Zoning
Regulations.
1.1.45 Hazardous Substance: any pollutant, contaminant
or any toxic, radioactive or otherwise hazardous substance,
including petroleum, its derivatives, byproducts and others
hydrocarbons, asbestos, and toxic mold, in each case as
regulated under Environmental Laws.
1.1.46 Initial Capital Contributions: as defined in the
Company Agreement.
1.1.47 Initial Improvements: all buildings, common
areas, and other improvements or areas to be constructed by
the Company pursuant to the Zoning Approval, including any
Shared Improvements (defined herein) required or agreed in
writing to be developed by the Company concurrently with
its construction of the Project in order to complete all first
phase development obligations under the Zoning Approval
(and for the Project to qualify for occupancy permits or
their equivalent upon the completion of such construction).
1.1.48 Initial Outside Closing Date: January 31,
2013, as may be extended as a result of FRP Delay
pursuant to Section 3.1.3(c).
1.1.49 Initial PUD Modification Application: as defined
in Section 3.1.2.
1.1.50 Key Consultants: as defined in Section 3.3.
1.1.51 Known Hazardous Substances: the possible
presence on the Company Parcel of total petroleum
hydrocarbons - diesel range organics, as described in the
Limited Phase II Environmental Site Assessment and
Geophysical Survey dated February 8, 2000, prepared by
Engineering Consulting Services, Ltd. (which is listed on
Schedule 5.10).
1.1.52 Land Records: the land records of the
District of Columbia.
1.1.53 Lease: any lease, license or other occupancy
agreement with respect to all or a portion of the
Company Parcel.
1.1.54 Legal Requirement: any and all applicable
federal, state, local or municipal constitutions, laws, statutes,
orders, rulings, findings, directives, standards, procedural
requirements, ordinances, rules and/or regulations.
1.1.55 Master Development: the development of
the Site, including the Company Parcel, in accordance with
the PUD Modification, as amended by any modifications
adopted at any time with respect to the Project and/or the
Site with governmental approval, and, to the extent required
hereunder or under the LLC Agreement, with approval of all
of the Members of the Company.
1.1.56 Monetary Encumbrances: as defined in Section
4.2.2.
1.1.57 MRP: as defined in the Preamble.
1.1.58 MRP Affiliate: a Person (a) that is Controlled by
any two or more of the MRP Principals, as long as those MRP
Principals at all times include Robert Murphy and Frederick
Rothmeijer, and (b) in which two or more of the MRP
Principals own, directly or indirectly at least fifty-one percent
(51%), including at least fifty-one percent (51%) of the capital
and profits, so long as those MRP Principals at all times include
Robert Murphy and Frederick Rothmeijer.
1.1.59 MRP Designee: as defined in Section
12.1.1.
1.1.60 MRP Indemnified Parties: as defined in Section
11.4.1.
1.1.61 MRP Principals: Robert Murphy, Frederick
Rothmeijer, Ryan Wade and J. Richard Saas.
1.1.62 MRP Representatives: as defined in Section
4.1.
1.1.63 MRP's Knowledge: the actual current
knowledge of the Persons listed on Schedule1.1.63, without
any obligation to review any files or make inquiry of any
Person. No knowledge of any other Person shall be
imputed to MRP.
1.1.64 New Title Matter: as defined in Section
4.2.4.
1.1.65 Objection: as defined in Section 4.2.1.
1.1.66 Outside Application Date: the outside date
for application for building permits for the initial improvements
under the Existing PUD, as the same may be unconditionally
modified by the PUD Modification or any other modification
or amendment to the Existing PUD, as approved by applicable
Governmental Authorities in the District of Columbia. The
parties acknowledge that (a) under the Existing PUD, the
Outside Application Date is currently June 27, 2012, and
(b) the Outside Application Date is a fluid date that
may repeatedly change based on modifications to the
Existing PUD, and/or other actions taken by applicable
Governmental Authorities in the District of Columbia which
have the effect of extending the Outside Application Date.
1.1.67 Outside Closing Date: as applicable, the
Initial Outside Closing Date or the Extended Outside Closing
Date, as may be extended pursuant to Section 7.2 of this
Agreement.
1.1.68 Parcel Value: an amount equal to (i) the
maximum number of square feet of Gross Floor Area
that is authorized to be built on the Company Parcel
pursuant to the Zoning Approval multiplied by (ii) Forty
Five and 00/100 Dollars ($45.00), provided that in no
event shall the Parcel Value be less than Ten Million Five
Hundred Thousand and 00/100 Dollars ($10,500,000.00).
1.1.69 Permitted Exceptions: collectively, (i) the
matters set forth on Schedule 1.1.69, (ii) the matters set
forth on Schedule B of the Title Commitment and the matters
that would be shown by a survey of the Company Parcel
performed on the last day of the Title Objection Period in
accordance with the Survey Standards, other than those
matters that FRP is required to cure pursuant to Section
4.2, and (iii) any matters approved or deemed approved
by MRP pursuant to Section 4.2.
1.1.70 Person: a natural person or any legal or
governmental entity.
1.1.71 Post-Closing Development Costs: all
out-of-pocket third party costs incurred by MRP in
connection with the performance of its pre-development
obligations under Article 3 and, as applicable, under
the Company Agreement, to the extent such costs are
incurred in accordance with the "Development Budget"
adopted by Company in accordance with the terms of
the Company Agreement after the Closing Date
hereunder, and as the same may be modified, or deemed
modified, in accordance with the terms of the Company
Agreement. Notwithstanding the foregoing, Post-
Closing Development Costs shall specifically exclude all
(a) Due Diligence Costs, (b) attorney's and other advisor's
fees and expenses incurred by MRP in connection with
the negotiation of this Agreement and/or the transaction
described herein (other than the fees of zoning and land
use counsel approved by FRP pursuant to Section 3.3),
and (c) overhead or personnel costs of MRP.
1.1.72 Pre-Closing: as defined in Section 8.2.
1.1.73 Pre-Closing Development Costs: all out-of-
pocket third party costs incurred by MRP in connection
with the performance of its obligations under Article 3, to the
extent such costs are incurred in accordance with the Pre-
Development Budget prior to the Closing Date hereunder.
Notwithstanding the foregoing, Pre-Closing Development
Costs shall specifically exclude all (a) Due Diligence Costs,
(b) attorney's and other advisor's fees and expenses
incurred by MRP in connection with the negotiation of this
Agreement and/or the transaction described herein
(other than the fees of zoning and land use counsel
approved by FRP pursuant to Section 3.3), and (c)
overhead or personnel costs of MRP.
1.1.74 Pre-Development Budget: as defined in
Section 3.4.1, and as the same may be modified, or deemed
modified, prior to the Closing Date in accordance with this
Agreement.
1.1.75 Prior Lease: that certain Lease Agreement
dated April 1, 1986, by and between FRP, as landlord, and
Prior Tenant, as tenant, as amended by Addendum dated April 1,
2001, Second Lease Addendum dated October 1, 2007, and
Third Addendum dated August 2011.
1.1.76 Prior Tenant: DC Materials, Inc., a District of
Columbia corporation, its successors and assigns.
1.1.77 Processing Delay: any delay in obtaining the
Zoning Approval beyond the time periods provided for in the
Zoning Approval Schedule that is not attributable to the failure
of MRP to use commercially reasonable and diligent efforts
to pursue the Zoning Approval, including delay attributable
to (i) postponements or adjournment of hearings and/or
meetings; (ii) requests for the inclusion of additional owner
commitments, or other modifications to the terms of PUD
Modification, as originally submitted, that were not anticipated
as of the date of execution of this Agreement by FRP and
MRP; and/or (iii) Persons involved in the process of
reviewing, commenting upon, and/or approving any
applications, plans and other supporting materials submitted
as part of the PUD Modification taking more time than
the Zoning Approval Schedule contemplates for
completing their review and/or approval, including due
to indecision or disagreement, as required to reconcile
conflicting demands or requests, or obtain input from
additional sources.
1.1.78 Project: the development of a mixed used
multifamily and retail commercial real estate project on the
Company Parcel by the Company.
1.1.79 Project Budget: as defined in Section 3.4.2,
as the same may be modified, or deemed modified, prior to
the Closing Date in accordance with this Agreement.
1.1.80 PUD: a planned unit development, as
defined in the Zoning Regulations.
1.1.81 PUD Modification: as defined in Section
3.1.1, as the same may be
modified prior to the Closing Date in accordance with
this Agreement.
1.1.82 Qualifying Approval Notice: a written
notice which seeks or requests the consent or approval of
the recipient of such notice to an action or decision
specified therein, or which triggers the recipient's
right to make an election under the express terms
of this Agreement, which (1) identifies the Section of
this Agreement which references the requirement for
such consent or approval, or the election to which such
Qualifying Approval Notice relates, (2) states the
number of days allotted under this Agreement to the
recipient of such notice to provide the requested
written approval or consent, or to make the election
triggered by such notice, and (3) then conspicuously
states, in all capitalized letters and bold print, that the
recipient's failure to respond to such Qualifying Approval
Notice within the time period allotted under this Agreement
will bedeemed either (i) to constitute the recipient's
approval of the action or decision in question, or (ii) to
constitute the recipient's deemed decision not to make the
applicable election identified therein.
1.1.83 REA: as defined in Section 3.2.
1.1.84 Reimbursable Costs: as defined in Section
10.2.4.
1.1.85 Remediation Activities: as defined in Section
10.2.1.
1.1.86 Service Contracts: as defined in Section 5.7.
1.1.87 Settlement Statement: as defined in Section
8.3.10.
1.1.88 Shared Improvements: all buildings, common
areas, and other improvements or areas located outside of the
Company Parcel and which are intended for the benefit of the
owners of all parcels within the entire Site, and their tenants,
occupants, invites, licensees and business visitors, pursuant to
the terms of the REA, but solely to the extent required to be
constructed by the Company as part of the development of the
Project pursuant to the terms of the Zoning Approval or to
ensure compliance with applicable Development Approvals
for the Project.
1.1.89 Site: the real property consisting of 5.82 acres
of land, more or less, located at 25 Potomac Avenue, SE,
Washington D.C. as more particularly described in Exhibit B
attached hereto.
1.1.90 Survey: as defined in Section 4.2.1.
1.1.91 Survey Standards: the Minimum Standard Detail
Requirements and Classifications for ALTA/ACSM Land Title
Surveys jointly established and adopted in 2011.
1.1.92 Tenant: a tenant, lessee, licensee or any other Person
who holds a leasehold interest in all or any portion of the Company
Parcel pursuant to a Lease.
1.1.93 Third Party Claims: as defined in Section 10.1.3.
1.1.94 Title Commitment: as defined in Section 4.2.1.
1.1.95 Title Company: Commonwealth Land Title Insurance
Company, with an address of 1015 15th Street, NW, Suite 300,
Washington, DC 20005, Attn: David P. Nelson, or such other title
company as MRP and FRP may mutually approve.
1.1.96 Title Objection Notice: as defined in Section 4.2.1.
1.1.97 Title Objection Period: as defined in Section 4.2.1.
1.1.98 Title Response Notice: as defined in Section 4.2.1.
1.1.99 Transaction Documents: collectively, this Agreement,
the Collateral Assignment of Development Work Product and the
other documents executed at or in connection with Closing by FRP,
MRP (or MRP Designee), and/or the Company.
1.1.100 WASA: as defined in Section 10.2.4(c).
1.1.101 Zoning and Land Use Counsel: as defined in Section
3.3.
1.1.102 Zoning Approval: the publication in the D.C. Register
of a final order by the Zoning Commission approving the PUD
Modification.
1.1.103 Zoning Approval Condition: as defined in Section 7.2.
1.1.104 Zoning Approval Schedule: as defined in Section
3.1.3, as the same may be modified, or deemed modified, prior to
the Closing Date in accordance with this Agreement.
1.1.105 Zoning Commission: the Zoning Commission of the
District of Columbia.
1.1.106 Zoning Regulations: the Zoning Regulations of the
District of Columbia, 11 D.C.M.R. (February, 2003), and the zoning
maps accompanying them.
1.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the District of Columbia
(without reference to conflicts of laws principles).
1.3 Captions, Numbering and Headings. Captions, numbering
and headings of Articles, Sections, Schedules and Exhibits in this
Agreement are for convenience of reference only and shall not be
considered in the interpretation of this Agreement. References in this
Agreement to Articles, Sections, Schedules and Exhibits shall be
deemed to be references to such Articles, Sections, Schedules
and Exhibits in this Agreement unless otherwise expressly specified.
1.4 Number; Gender. Whenever required by the context, the
singular shall include the plural, the neuter gender shall include the
male gender and female gender, and vice versa.
1.5 Business Day. In the event that the date for performance
of any obligation or the exercise of any right or option under this
Agreement falls on a day other than a Business Day, then such
obligation shall be performed on the next succeeding Business
Day.
1.6 Severability. In the event that one or more of the
provisions of this Agreement shall be held to be illegal, invalid
or unenforceable, each such provision shall be deemed
severable and the remaining provisions of this Agreement
shall continue in full force and effect.
1.7 No Oral Modifications or Waivers. No modification
of this Agreement shall be valid or effective unless the same is
in writing and signed by FRP and MRP. No purported waiver
of any of the provisions of this Agreement shall be valid or
effective unless the same is in writing and signed by the party
against whom it is sought to be enforced. Notwithstanding the
foregoing, the parties agree that the time for performance of
any matter to be performed pursuant to this Agreement
may be modified by electronic mail sent by the party against
whom it is sought to be enforced or such party's counsel.
1.8 Exhibits. All Schedules and Exhibits referenced in
this Agreement are incorporated by this reference as if fully set
forth in this Agreement, and all references to this Agreement
shall be deemed to include all such Schedules and Exhibits.
1.9 Integration. This Agreement, all Schedules and Exhibits
appended to this Agreement, and the documents and agreements
referenced in this Agreement, contain the entire understanding
between FRP and MRP with respect to the development of the
Company Parcel, the formation of the Company and contribution
of the Company Parcel to the Company, and are intended to be
a full integration of all prior or contemporaneous agreements,
conditions, understandings or undertakings between FRP and
MRP with respect thereto. There are no promises, agreements,
conditions, undertakings, understandings, warranties or
representations, whether oral, written, express or implied,
between FRP and MRP with respect to the development of
the Company Parcel, the formation of the Company and
contribution of the Company Parcel to the Company other
than as are expressly set forth in this Agreement, the
Schedules and Exhibits appended to this Agreement, and the
documents and agreements referenced in this Agreement.
1.10 No Construction Against Drafter. This Agreement
has been negotiated and prepared by FRP and MRP and their
respective counsels and, should any provision of this Agreement
require judicial interpretation, the court interpreting or
construing such provision shall not apply the rule of construction
that a document is to be construed more strictly against one party.
1.11 Including. The term "including," "include," "includes"
and other variants thereof, shall be construed is if immediately
followed by the words "without limitation."
ARTICLE 2. FORMATION OF COMPANY
2.1 Formation. At Closing, subject to and in accordance with
the terms of this Agreement, (i) FRP and MRP shall form the
Company and enter into the Company
Agreement, (ii) FRP shall contribute the Company Parcel to the
Company, and (iii) MRP shall contribute the Development Work
Product to the Company.
2.2 Initial Capital Contributions.
2.2.1 At Closing, FRP shall be credited pursuant to the
Company Agreement with an Initial Capital Contribution equal to the
sum of (a) the Parcel Value, plus or minus (b) the net proration amount
owed to or from FRP under Article 9, respectively, plus (c) if applicable,
the sum of all ad valorem real estate taxes, and other taxes, levies and
assessments with respect to the Company Parcel, and all insurance
premiums associated with the Company Parcel, in each case allocable
to the period beginning on the first anniversary of the Contract Date
and ending at the Apportionment Time.
2.2.2 At Closing, MRP shall be credited pursuant to the
Company Agreement with an Initial Capital Contribution equal to the
sum of (a) the Development Costs actually paid by MRP prior to the
Closing Date in accordance with the Pre-Development Budget (as
modified pursuant to Section 3.4.1), plus (b) any cash contribution
made by MRP to pay amounts due from MRP or the Company in
connection with the Closing under Section 8.2.
ARTICLE 3. PUD MODIFICATION
3.1 PUD Modification; Extension of Outside Application Date.
3.1.1 (a) PUD Modification. MRP shall seek a modification
to the Existing PUD for the Site (the "PUD Modification") to (i) approve
the development of the Company Parcel as first phase of development
for the Site, and (ii) revert to a modified first stage PUD for the remaining
three phases of development for the Site. The PUD Modification shall
include the following terms:
(i) approval of approximately 293,460 square feet of
Gross Floor Area of concrete residential and ground floor retail
improvements to be constructed on the Company Parcel, in lieu of the
250,000 square feet of gross floor area of commercial office and retail
use which is currently approved for the Company Parcel under the
Existing PUD (as more particularly described therein);
(ii) the preservation of density allocated to the
remainder of the Site under the Existing PUD; and
(iii) such other terms as FRP and MRP may approve.
(b) Extension of Outside Application Date. As part of the
PUD Modification process, MRP and/or FRP, as applicable, shall seek
an extension of the Outside Application Date under the Existing PUD
from June 27, 2012 to June 27, 2014 or such other date as the parties
(in consultation with Zoning and Land Use Counsel) determine, at such
time as MRP and FRP, in consultation with Zoning and Land Use
Counsel, reasonably deem is appropriate or necessary, but in all events
such extension request shall be filed with the Zoning Commission no later
than May 1, 2012 (unless Zoning Approval has been obtained
before then). The parties herby agree that any such extension shall be
deemed part of the PUD Modification for purposes of this Agreement.
3.1.2 Initial PUD Modification Application; Cooperation.
(a) On December 1, 2011, a PUD Modification Application
was submitted to the Zoning Commission for approval and assigned Case
Number 4-14B (in the form submitted on December 1, 2011, the "Initial
PUD Modification Application").
(b) MRP and FRP will work cooperatively with one another to
discuss, and, as applicable, modify the Initial PUD Modification Application
(under MRP's supervision and at MRP's expense), in response to any
comments received from Governmental Authorities, or otherwise as agreed
by them in consultation with Zoning and Land Use Counsel until the Zoning
Approval has been obtained or this Agreement has terminated, whichever
first occurs, subject to the following review and approval standards:
(i) Any modification to the terms of the Initial PUD
Modification Application that affects the remainder of the Site to more
than a de minimis extent shall be subject to the approval of FRP, which
(1) as to matters involving common areas, common infrastructure, shared
private roadways or other shared amenities upon which the development
of the Company Parcel is dependent, shall not be unreasonably withheld,
conditioned or delayed (provided that the parties hereby agree that it
shall be reasonable for FRP to withhold its consent to any such matters
because such matters have a material non de minimis and adverse
economic impact on the balance of the Site relative to that which is
applicable under the Initial PUD Modification Application, including,
but not limited to, a non de minimis increase in cost or a decrease in
Gross Floor Area for the balance of the Site relative to that which
is applicable under the Initial PUD Modification Application), and (2)
as to all other matters, may be granted or withheld in FRP's sole and
absolute discretion;
(ii) FRP shall not incur any material liability or material
out-of-pocket cost in connection with any modifications to the Initial
PUD Modification Application (other than the costs of FRP's own
counsel and consultants) and it shall be reasonable for FRP to
withhold its approval of any modifications to the Initial PUD
Modification Application that result in the same; and
(iii) If neither subparagraph (i) nor subparagraph (ii)
is applicable, any modifications to the Initial PUD Modification
Application shall be subject to the prior approval of both FRP and
MRP, not to be unreasonably held, conditioned or delayed.
Except as otherwise approved by the other, (1) MRP shall not
consent to, support or permit any PUD Modification or
modification to the Existing PUD or PUD Modification that is
not consistent in all non-de minimis respects with
the application materials approved by FRP, and (2) FRP shall
not consent to, support or permit any PUD Modification or
modification to the Existing PUD or PUD Modification that is
not consistent in all non-de minimis respects with the application
materials approved by MRP (except that MRP shall have no
approval right with respect to any modification to the Existing
PUD or PUD Modification that affects only the balance of the
site other than the Company Parcel). Likewise the Zoning
Approval shall be consistent in all non-de minimis respects with
the Initial PUD Modification Application, as the same may
modified pursuant to this Section 3.1.2(b).
(c) FRP, as the fee owner of the Company Parcel,
shall cooperate with MRP in such manner as MRP reasonably
requests to obtain Zoning Approval. Such cooperation by FRP
may include (a) meetings with interested Persons, groups or
stakeholders, (b) meetings with, presentations to, and testimony
before, the Office of Planning, the Zoning Commission and other
Governmental Authorities, (c) submitting letters of support to the
Zoning Commission and other Governmental Authorities, and
(d) executing applications for Zoning Approval to the Zoning
Commission and other Governmental Authorities. The form and
substance of any PUD covenant or other covenant or agreement
related to Zoning Approval shall be subject to the prior review
and approval of FRP in accordance with the standards set forth
in Section 3.1.2(b).
(d) In the absence of a specific provision in this
Agreement which contemplates a different time period for FRP to
review or approve any specific request for approval received by
FRP from MRP, or for FRP to respond to a notice from MRP
seeking some other action by FRP in connection with MRP's
effort to satisfy Zoning Approval Condition, the parties agree FRP
shall reply or respond to MRP within seven (7) Business Days
following receipt of such request or notice from MRP.
3.1.3 Processing of PUD Modification.
(a) From and after the date hereof, MRP, at its sole
cost and expense, shall diligently pursue all applications, filings,
hearings, meetings, outreach, processes and appeals reasonably
necessary to obtain the Zoning Approval in accordance with the
schedule set forth on Schedule 3.1.3 (as the same may be modified
from time to time in accordance with any applicable provision of this
Agreement, the "Zoning Approval Schedule"). MRP shall coordinate
such activities with FRP and shall provide FRP with reasonable prior
notice of all scheduled meetings regarding the Zoning Approval with
any interested Persons, groups or stakeholders and all meetings or
hearings with any Governmental Authority in connection with the
Zoning Approval. FRP shall have the right to have its representatives
attend, and, in a manner coordinated with MRP (and as to which
MRP takes the "lead" in representing the interests of the applicant
therein), participate in, all such meetings and hearings.
(b) The Zoning Approval Schedule may be modified by
mutual agreement of the parties by executing a written amendment to
this Agreement attaching a revised Zoning Approval Schedule.
(c) The Zoning Approval Schedule shall be modified to
extend each applicable milestone date set forth therein by one (1) day
for each day of delay in achieving such milestone date, to the extent the
same is attributable solely to FRP Delay.
3.1.4 Unless FRP is then in default under this Agreement, FRP
shall have the right to terminate this Agreement as follows:
(a) If FRP reasonably determines that MRP will not be
able to achieve the Zoning Approval by the Extended Outside Closing
Date other than as a result of any FRP Delay(s), FRP may deliver written
notice of termination to MRP; or
(b) If FRP reasonably determines that the terms and
conditions under which the District is willing to grant approval to the PUD
Modification are financially infeasible or otherwise unacceptable from a
marketing or development perspective, then FRP shall have the right to
terminate this Agreement by written notice to MRP.
3.1.5 Unless MRP is then in default under this Agreement, MRP
shall have the right to terminate this Agreement as follows:
(a) If MRP reasonably determines that it will not be able to
achieve the Zoning Approval by the Extended Outside Closing Date
other than as a result of a failure of MRP to perform its obligations
under this Agreement, MRP may deliver written notice of termination to
FRP;
(b) If MRP reasonably determines that the terms and conditions
under which the District is willing to grant approval to a modification of
the Existing PUD are financially infeasible or otherwise unacceptable from
a marketing or development perspective, then MRP shall have the right to
terminate this Agreement by written notice to FRP; or
(c) FRP's failure to approve reasonable changes to the Pre-
Development Budget, provided that it will be deemed unreasonable for
FRP to withhold its approval to increases in the Pre-Development
Budget requested solely in order to account for additional costs incurred
in satisfying the Zoning Approval Condition to the extent attributable to
Processing Delays, Force Majeure and/or FRP Delays (except to the
extent any of the foregoing are attributable to MRP's failure to use diligent
efforts to satisfy the Zoning Approval Condition or other default under
this Agreement).
Prior to either party delivering a termination notice under Section
3.1.4 or 3.1.5, as applicable, such party shall meet and confer with the
other party regarding the basis for such termination and to determine
whether there is any feasible alternative to termination that MRP and
FRP should pursue; provided that the foregoing shall not be construed
to deny FRP or MRP the right to terminate this Agreement if the
conditions for such termination are met.
3.1.6 Upon any termination of this Agreement effectuated
pursuant to Section 3.1.4 or Section 3.1.5, (i) this Agreement shall
otherwise be of no further force and effect, (ii) subject to any rights
FRP has under Section 11.1 or MRP has under Section 11.2, Section
11.3 shall apply, and (iii) other than as set forth in subclause (ii), neither
party shall have any further rights, obligations or liabilities to the other
party other than those that expressly survive termination of this
Agreement.
3.2 REA; Development Agreement. Promptly following the
Contract Date, FRP and MRP, each acting reasonably and in good
faith, shall endeavor to agree upon the form of (A) a reciprocal
easement agreement that will encumber the Site (including the
Company Parcel) (the "REA"), consistent with the PUD Modification,
and (B) a development management agreement to be entered into
by the Company and the Developer (the "Development Agreement").
If FRP and MRP shall agree upon a form of REA and a form of
Development Agreement, they shall promptly reflect the same in an
amendment to this Agreement. If such amendment shall not have been
executed by the date that is sixty (60) days after the Contract Date,
then either FRP or MRP may terminate this Agreement by written
notice to the other given at any time thereafter and prior to execution
of such amendment by both parties. Upon any such termination, (i)
this Agreement shall be of no further force and effect, (ii) subject to
any rights FRP has under Section 11.1 or MRP has under Section
11.2, Section 11.3 shall apply, and (iii) other than as set forth in
subclause (ii), neither party shall have any further rights, obligations
or liabilities to the other party other than those that expressly survive
termination of this Agreement. The REA shall be recorded in
the Land Records at Closing, at the expense of the Company. The
Development Agreement shall be executed by the applicable parties
at Closing.
3.3 Consultants. MRP shall engage SK&I as the design
architect and architect of record for the Initial Improvements,
Goulston & Storrs as the zoning and land use counsel for obtaining
Zoning Approval and other Development Activities (the "Zoning and
Land Use Counsel"), Wiles Mensch as civil engineer for the Project,
Gorove Slade as traffic consultant, Oculus as the landscape architect,
and either ECS or Schnabel as environmental and soils consultant,
and FRP hereby approves of the foregoing consultants (the "Key
Consultants"). The parties hereby agree that the Zoning and
Land Use Counsel shall represent the joint interests of MRP
and FRP, and that MRP and FRP shall both be the client. FRP
shall have the right to approve (which approval shall not be
unreasonably withheld, conditioned or delayed): (A) other
consultants and contractors involved in connection with obtaining
Zoning Approval (e.g. land planners, public space and landscaping
consultants, and community relations and outreach specialists) and
the other Development Activities (such approved additional
consultants together with the Key Consultants, the "Consultants"),
and (B) the fee structure and fee schedules for the Consultants
(and, upon FRP giving such approval, the Pre-Development
Budget will be deemed amended to the extent necessary to
integrate such approved fee structure and fee schedules therein).
MRP shall have the right to replace any Consultants upon
obtaining FRP's prior approval, which approval shall not be
unreasonably withheld, conditioned or delayed.
3.4 Pre-Development Budget; Project Budget.
3.4.1 As of the date hereof, MRP has provided to
FRP a budget (the "Pre-Development Budget") setting forth all
anticipated Pre-Closing Development Costs. From time to time
prior to Closing, if MRP shall determine that the Pre-Development
Budget does not accurately reflect the anticipated Pre-Closing
Development Costs, MRP may propose to FRP updates to the
Pre-Development Budget. Each such update shall be subject to
the prior approval of FRP, which approval shall not be unreasonably
withheld, conditioned or delayed (and which shall be deemed
approved if not disapproved by FRP within five (5) Business Days
after being submitted for approval). MRP shall keep complete
and accurate
books and records relating to Development Costs, and such
books and records shall be open and available to FRP for
inspection, copying and audit during normal business hours.
From and after the Contract Date and prior to Closing, MRP
shall provide to FRP, on or before the fifteenth (15th) day of each
month, a report showing (on a reasonably itemized basis) all
Development Costs which have been paid by MRP through
the end of the preceding month.
3.4.2 As of the date hereof, MRP has provided to
FRP a preliminary Project budget (the "Project Budget")
setting forth MRP's preliminary estimate of all Development
Costs and all hard and soft costs projected to be incurred in
connection with the entitlement, development, construction,
completion and initial lease up of the Initial Improvements.
MRP shall update the Project Budget (i) at Closing, and (ii) at
such other times as FRP and MRP may mutually agree. Each
such update shall be subject to the prior approval of FRP, which
approval shall not be unreasonably withheld, conditioned or
delayed (and which shall be deemed approved if not disapproved
by FRP within five (5) Business Days after being submitted
for approval). MRP shall keep complete and accurate
books and records relating to Development Costs, and
such books and records shall be open and available to FRP for
inspection, copying and audit during normal business hours.
3.5 Collateral Assignment of Development Work Product.
Concurrently with the execution of this Agreement, MRP shall
execute and deliver to FRP the Collateral Assignment of
Development Work Product attached to this Agreement as Exhibit
H (the "Collateral Assignment of Development Work Product").
In connection with each third-party contract executed by MRP
in connection with its pre-Closing responsibilities under this
Agreement, MRP shall obtain the consent of the applicable
third party to the assignment of such contract (and any work
product thereunder) pursuant to the Collateral Assignment of
Development Work Product. This Section 3.5 shall survive
the termination of this Agreement.
ARTICLE 4. MATTERS PENDING CLOSING
4.1 Access. Subject to the terms and conditions of the Access
Agreement, MRP and its representatives, agents and contractors
(collectively, "MRP Representatives") shall have the right
to enter onto the Company Parcel to undertake such
inspections and investigations of the Company Parcel as MRP
deems desirable to evaluate the financial and physical condition
of the Company Parcel and such other matters that MRP may
deem relevant.
4.2 Title and Survey.
4.2.1 Within thirty (30) days following the Contract
Date ("Title Objection Period"), MRP shall cause (a) the Title
Company to issue and deliver to MRP a commitment for an
ALTA Owner's Policy of Title Insurance ("Title Commitment")
for the Company Parcel (and affirmatively insuring the Company's
rights under the REA and any other easements appurtenant to
the Property, as part of the insured legal description of the
property insured thereunder) naming the Company as the
insured, and (b) a survey ("Survey") to be performed of the
Company Parcel (based upon the projected boundaries as
shown on Exhibit A) in accordance with the Survey Standards.
Promptly after receipt, MRP shall deliver a copy of the Title
Commitment and the Survey to FRP. Prior to the
expiration of the Title Objection Period, MRP shall notify FRP
in writing (the "Title Objection Notice") of any matter set
forth on the Title Commitment or Survey (other than matters
described on Schedule 1.1.68) that in MRP's reasonable
judgment materially and adversely impacts development of the
Company Parcel in accordance with this Agreement (each such
matter, an "Objection"). All matters existing as of the date of the
Title Commitment and not addressed in MRP's Title Objection
Notice (other than the Objections FRP is obligated to cure or
has elected to cure pursuant to this Section 4.2), shall constitute
Permitted Exceptions. Within five (5) Business Days following
receipt of the Title Objection Notice, FRP shall notify
MRP in writing (the "Title Response Notice") which
Objections FRP elects to cure at or before the Closing.
4.2.2 Notwithstanding anything to the contrary contained
in Section 4.2.1, FRP shall be obligated to cause the release or
removal of, at or before the Closing (i)any mortgage lien
encumbering the Company Parcel, (ii)any mechanics' lien or
materialmen's lien encumbering the Company Parcel except to the
extent attributable to work performed for MRP, and (iii)any judgment
lien, tax lien (other than taxes not yet due and payable) or other lien
securing a monetary amount, which encumbers the Company Parcel
and is capable of being removed by the payment of a liquidated sum
of money (the items referenced in clauses (i)-(iii) being referred to
collectively as "Monetary Encumbrances"). Subject to MRP's
approval, which will not be unreasonably withheld, conditioned or
delayed, FRP may provide affirmative title insurance to insure over
any Objection as a sufficient cure of such Objection.
4.2.3 In the event that FRP fails to respond to MRP's
Objections, if any, pursuant to the Title Response Notice by the
date that is five (5) Business Days following receipt of the Title
Objection Notice, FRP shall be conclusively deemed to have elected
not to cure such Objections, other than those FRP is obligated to cure
pursuant to Section 4.2.2. If FRP does not agree to cure such
Objections, then during the five (5) Business Day period following
MRP's receipt of the Title Response Notice (or if FRP fails to
respond to MRP's Objections, within five (5) Business Days after the
outside date for the Title Response Notice), MRP shall have the right
to terminate this Agreement by written notice to FRP. If MRP fails
to so terminate this Agreement, then any Objections which FRP has
not agreed to cure (excluding Monetary Encumbrances, which must
be cured by FRP) shall constitute Permitted Exceptions. Upon any
such termination, (i) this Agreement shall be of no further force and
effect, (ii) neither party shall have any further rights, obligations or
liabilities to the other party other than those that expressly survive
termination of this Agreement, and (iii) Section 11.3 shall apply.
If FRP indicates that it will cure one or more Objections in its Title
Response Notice, the same shall constitute FRP's unconditional
covenant to cure such Objection on or before the Closing Date
in accordance with the requirements of Section 4.2.2 or Section
4.2.4 hereof, as applicable.
4.2.4 If after expiration of the Title Objection Period
and prior to Closing, any update of the Title Commitment shall
disclose any matter ("New Title Matter") affecting title to the
Company Parcel that (i) first arose or was recorded after the
date of the Title Commitment, (ii) is not a Permitted Exception,
and (iii) is not otherwise expressly permitted under this Agreement
or caused by MRP or any MRP Representatives, then MRP shall
promptly notify FRP of any such New Title Matter and FRP shall
be obligated to cure
the same at or before Closing; provided that FRP shall have the
right to extend the Closing for a period not to exceed sixty (60)
days in the aggregate if necessary to effect such cure. The cure
provisions of Section 4.2.2 shall apply to any Objection by MRP
to a New Title Matter, with the same force and effect as if Section
4.2.2 were restated herein and made expressly applicable hereto.
Except to the extent that MRP so notifies FRP of its Objection to
any New Title Matter pursuant to this Section 4.2.4, any item
reflected in any update of the Title Commitment shall be deemed
to have been approved by MRP and shall be a Permitted
Exception for all purposes under this Agreement.
4.2.5 If, on or before Closing, FRP fails to cure any
Objection that FRP elects or is obligated to cure pursuant to Section
4.2.1 or Section 4.2.2, or FRP fails to cure any New Title Matter
that FRP is obligated to cure pursuant to Section 4.2.4, then MRP
may (i) waive such Objection or New Title Matter, in which event
such waived Objection or New Title Matter shall become a
Permitted Exception for all purposes under this Agreement, (ii)
extend the Closing for a period not to exceed sixty (60) days in the
aggregate to allow FRP to effect the cure of such Obligation or
New Matter, or (iii) declare FRP in default under this Agreement
and proceed to exercise MRP's rights under Section 11.2.
4.2.6 Prior to Closing, MRP shall cause the Survey to be
updated and the boundaries of the Company Parcel shown on the
Survey to conform to the boundaries of the first phase of the PUD
Modification. Such updated boundaries shall be the basis for the
A&T Lot, and FRP and MRP shall execute a modification of this
Agreement confirming the final boundaries and legal description of
the Company Parcel.
4.3 Contracts and Leases.
4.3.1 Prior to Closing, FRP may enter into contracts and
agreements relating to the operation, maintenance and security of the
Company Parcel, provided that except to the extent otherwise
agreed by FRP and MRP, such contracts and agreements shall not
be assigned to the Company at Closing and shall remain the sole
obligation of FRP. All such contracts and agreements relating to the
Company Parcel shall be terminated in their entirety or
unconditionally released with respect to the Company
Parcel, at FRP's sole cost, on or before the Closing Date.
4.3.2 Prior to Closing, FRP reserves the right to enter
into Leases for all or any portion of the Company Parcel, provided
that all such Leases shall provide (i) that such Leases will terminate
as of (or prior to) the Closing Date, or no later than thirty (30) days
after notice of termination from FRP, (ii) that the tenant thereunder is
deemed to be either a tenant-at-sufferance or a trespasser if it fails
to surrender possession of its premises under such Lease upon the
expiration of the term thereof, and (iii) that the tenant thereunder
indemnifies Landlord (and its successors and assigns in title to the
Company Parcel) from and against any and all damages, losses
and/or expenses arising from such tenant's failure to surrender
possession of its premises upon expiration of the term thereof. If
any such Lease provides that it will terminate no later than thirty
(30) days after notice of termination from FRP, then, unless
otherwise approved by MRP at the time, FRP shall deliver a
notice of termination of such Lease no later than thirty (30) days
prior to the Closing Date hereunder,
and thereafter enforce such tenant's compliance with its surrender
obligations thereunder, all at FRP's sole cost and expense.
4.3.3 On or prior to the Closing Date, FRP shall use all
reasonable and diligent efforts to enforce the obligation of the
Prior Tenant under the Prior Lease to obtain a closure letter with
respect to the D.C. Department of the Environment Underground
Storage Tank Case No. 95078 ("Existing LUST Case"). If such
closure letter shall not have been obtained prior to Closing, the
Hazardous Substances covered by the Existing LUST Case shall be
deemed to be a Known Hazardous Substance and shall be addressed
pursuant to Section 10.2.
4.3.4 Between the Title Commitment Date and the Closing
Date, FRP shall not enter into, record or suffer any modification of the
status of title to the Property, nor enter into any licenses, easements,
rights of way, covenants, conditions, restrictions and/or other title
matters that affect any portion of the Company Parcel and would be
binding upon the Company Parcel after Closing, unless (a)
contemplated or permitted by the terms of this Agreement, (b) MRP
consents thereto (in MRP's sole and absolute discretion), or (c) such
instrument or title matter, by its terms, either terminates, is automatically
released of record and/or is otherwise extinguished on or before the
Closing Date.
4.4 Updated Disclosure Obligations. For so long as this
Agreement is in effect, FRP and MRP shall each promptly notify the
other in writing if it has Actual Knowledge of any fact or condition:
4.4.1 which is inconsistent in any material respect with (i) the
representations or warranties given by either party under this
Agreement, (ii) the PUD Modification, (iii) the Pre-Development
Budget, (iv) the Project Budget, (v) any of the milestone dates
provided for in the Zoning Approval Schedule, and/or the (vi) any
other timing provisions of this Agreement or the Company Agreement,
or
4.4.2 which has a significant potential (i) to adversely affect
MRP's ability to obtain the Zoning Approval, or to satisfy any other
condition to Closing under this Agreement, (ii) to adversely affect
the Company's ability to obtain building permits for development
and/or construction of the Project after Closing, or (iii) to increase
or modify the costs of developing the Company Parcel for its
intended purposes hereunder (and under the Company Agreement)
to any material extent.
4.5 Exclusivity and Non-Compete.
4.5.1 Prior to the earlier of Closing or termination of this
Agreement, FRP shall not, directly or indirectly, market the
Company Parcel for sale, ground lease or a contribution and joint
venture transaction like that provided for under this Agreement, and
shall not solicit or negotiate with any third party for the sale or
ground lease of, or a contribution and joint venture transaction like
that provided for under this Agreement with respect to, the
Company Parcel. The foregoing limitation shall not apply to any
portion of the Site other than the Company Parcel, provided that,
unless otherwise approved in advance by MRP, in writing, any
transfer of any portion of the Site other than the Company
Parcel prior to Closing shall be subject to all terms of the
PUD Modification as then pending before the Zoning Commission,
and to the terms of the REA (or if the form of REA has not yet
been agreed to in accordance with Section 3.2, subject to the
REA to be negotiated by FRP and MRP in accordance with Section
3.2).
4.5.2 Prior to the earlier of Closing or termination of this
Agreement, neither MRP nor any Person which is Controlled by the
MRP Principals or in which the MRP Principals have, directly or
indirectly, more than a one percent (1%) beneficial interest, shall
acquire, lease or develop, or provide leasing or development
services as a direct or indirect owner or co-owner, or on a fee
for services basis, for or with respect to any real estate of which
the principal use is (or planned to be) multifamily rental in the Ballpark
District; provided that the foregoing shall not prohibit MRP or such
other Person from acquiring, leasing or managing a multifamily rental
building in which at least ninety percent (90%) of the individual units
have previously been leased to, or occupied by, third party tenants.
4.5.3 Prior to the earlier of Closing or termination of this
Agreement (or March 1, 2016 if Closing shall not have previously
occurred), neither FRP nor any FRP Affiliate shall commence
construction on Phase 2 of the approved PUD Modification (as
defined therein) for the principal use of multifamily rental.
4.6 Condemnation.
4.6.1 FRP and MRP shall each notify the other of any
pending or threatened condemnation affecting any part of the
Company Parcel prior to Closing of which it becomes aware.
4.6.2 If prior to Closing, condemnation proceedings are
commenced against any portion of the Company Parcel and such
proceedings do not materially adversely affect the development of the
Company Parcel as contemplated by this Agreement or the Company
Agreement (including any material increase in the cost or time that it
would take to commence and/or complete such development), as
determined by MRP and by FRP in their respective sole, but
reasonable, judgment, then this Agreement shall continue in full force
and effect, and upon consummation of Closing the condemnation
awards payable in respect of such condemnation (other than any
portion of the award expended by FRP prior to Closing to restore
the Company Parcel) shall be assigned to the Company, and FRP
shall have no obligation to repair or restore the Company Parcel.
4.6.3 If prior to Closing, condemnation proceedings are
commenced against any portion of the Company Parcel and such
proceedings do materially adversely affect the development of the
Company Parcel as contemplated by this Agreement or the
Company Agreement (including any material increase in the cost or
time that it would take to commence and/or complete such
development), as determined by MRP and by FRP in their
respective sole, but reasonable, judgment, then MRP and FRP
shall each have the right, upon notice in writing to other delivered
within thirty (30) days after the date it receives notice of such
condemnation, to terminate this Agreement, following which (i) this
Agreement shall be of no further force and effect, (ii) neither
party shall have any further
rights, obligations or liabilities to the other party other than those
that expressly survive termination of this Agreement, (iii) Section
11.3 shall apply. If MRP and FRP do not elect to terminate this
Agreement under this Section 4.6.3, then the following provisions
shall apply:
(a) This Agreement shall continue in full force and
effect, and, upon consummation of Closing, the full condemnation
award payable in respect of such condemnation shall be allocated to
and, if applicable, paid over to the Company (or treated as a direct
offset and reduction to the capital contribution credit otherwise being
allocated to FRP as part of its Initial Capital Contribution hereunder
in respect of the Parcel Value of the Company Parcel being
contributed by FRP to the Company at Closing if such award is
retained by or paid to FRP or any FRP Affiliate, and not
subsequently paid over by the recipient thereof to the Company
(as aforesaid)).
(b) The Parcel Value shall be recalculated using the
maximum square feet of Gross Floor Area that may be constructed
on the Company Parcel taking into account the condemnation, without
reference to the minimum amount set forth in Section 1.1.65.
4.6.4 If MRP and FRP shall not agree as to whether any
condemnation materially adversely affects the development of the
Company Parcel as contemplated by the Master Plan, such dispute
shall be resolved by binding, expedited arbitration before a single
arbitrator in accordance with the rules of the American Arbitration
Association for expedited commercial arbitration.
4.7 Other Pre-Closing Covenant of FRP. Prior to Closing
(A) FRP, at its sole cost and expense, shall (i) maintain the Company
Parcel in substantially the same condition as exists on the Contract Date,
reasonable wear and tear and damage by uninsured casualty excepted,
(ii) comply with all of its obligations under any Leases of the Company
Parcel which are entered into by FRP in accordance with the terms of
this Agreement, and under any Service Contracts or other agreements
affecting the Company Parcel which are entered into by FRP in
accordance with the terms of this Agreement, and (iii) enforce the
obligations of the Prior Tenant and any other tenants and/or
contractual counterparties under the Prior Lease, and any other leases,
Service Contracts and/or other agreements affecting the Company
Parcel which are entered into by FRP in accordance with the terms
of this Agreement, and (B) FRP shall not (i) enter into any leases,
licenses, easements or other title matters with respect to the Company
Parcel other than pursuant to Section 4.3, without MRP's consent
(in its sole and absolute discretion), or (ii) enter into any easements or
other title matters with respect to the balance of the Site, to the
extent the same is inconsistent with the PUD Modification as then
under consideration (or as approved) by the Zoning Commission, or
with any REA that is attached to this Agreement by an amendment
hereto, or (iii) enter into any voluntary liens, or suffer any involuntary
liens, against the Company Parcel which are not fully released on
or before the Closing Date hereunder.
4.8 No Change of Control. Prior to Closing, MRP shall not cause
or permit the transfer of any direct or indirect interests in MRP which
shall result in (i) the MRP Principals (which for this purpose must
include both Robert Murphy and Frederick Rothmeijer) ceasing
to Control MRP, and/or (ii) the MRP Principals (which for this
purpose must include both Robert Murphy and Frederick Rothmeijer)
ceasing to own, directly or indirectly, at least fifty-one percent
(51%) of MRP, including at least fifty-one (51%) of the capital and
profits.
4.9 Legal Violations. If prior to Closing, FRP shall receive from
any Governmental Authority a written notice of violation of any
Legal Requirement affecting the Company Parcel (expressly excluding
any Legal Requirement under any Environmental Laws, which shall be
governed by Section 10.2), FRP shall cure the same prior to Closing.
All third party costs incurred by FRP in connection with such cure
shall be credited against the Cap.
ARTICLE 5. FRP'S REPRESENTATIONS AND WARRANTIES
FRP hereby represents and warrants to MRP as follows:
5.1 Good Standing. FRP is a Florida corporation, duly formed,
validly existing and in good standing under the laws of the State of
Florida, and is duly qualified to transact business and in good standing
under the laws of the District of Columbia. FRP has full power and
authority to execute this Agreement and to consummate the
transaction contemplated by this Agreement.
5.2 Due Authorization. The execution, delivery and performance
of this Agreement by FRP and the consummation by FRP of the
transactions contemplated by this Agreement have been duly and
validly authorized by all requisite actions of FRP and all entities with
authority over such actions by FRP (if any) and constitute the valid
and binding obligations of FRP. No consent or authorization which
has not been obtained prior to the date of this Agreement is required
in connection with the execution, delivery and performance of this
Agreement by FRP. Assuming the due execution and delivery of
this Agreement by MRP, this Agreement constitutes the valid and
binding obligation of FRP, enforceable against FRP in accordance
with its terms.
5.3 No Violations. The execution, delivery and performance
of this Agreement by FRP and the consummation by FRP of the
transactions contemplated by this Agreement will not:(i)violate
any Legal Requirement or any order of any court or
Governmental Authority that is binding on FRP or the Company
Parcel; or (ii)result in a breach of or default under (A) any
contract or other agreement to which FRP is a party or by
which the Company Parcel is bound, or (B) any provision of the
organizational documents of FRP.
5.4 Bankruptcy. FRP is not the subject debtor under any
federal, state or local bankruptcy or insolvency proceeding, or
any other proceeding for dissolution, liquidation or winding up of its
assets.
5.5 Litigation. There are no Actions pending or, to FRP's
Knowledge, threatened against FRP before any court or
Governmental Authority, which (i) if adversely determined, would
materially and adversely affect FRP's financial condition or FRP's
power and authority to enter into or perform its obligations
under this Agreement and/or the Company Agreement, or (ii) relate
to the Company Parcel and/or the ownership, operation,
development, use or occupancy of the Company Parcel.
5.6 Leases. As of the Contract Date there are no Leases in
effect with respect to the Company Parcel, and as of Closing there
shall be no leases other than as expressly permitted pursuant to this
Agreement.
5.7 Contracts. There are no service contracts or other agreement
to which FRP or its management agent is a party (or successor-by-
assignment), and that affect or pertain to, and are currently in effect
with respect to, the Company Parcel, or which impose any obligation to
pay any fees, commissions or other amounts (whether accrued on or
before the Closing Date, or after the Closing Date) that will be binding
upon the Company or the Company Parcel after Closing (the "Service
Contracts").
5.8 Foreign Person. FRP is not a "foreign person" as defined in
Section 1445(f)(3) of the Code.
5.9 Terrorist Organizations Lists. FRP is not acting, directly or
indirectly, for or on behalf of any Person named by the United States
Treasury Department as a Specifically Designated National and
Blocked Person, or for or on behalf of any Person designated in
Executive Order13224 as a Person who commits, threatens to
commit, or supports terrorism. FRP is not engaged in the transaction
contemplated by this Agreement directly or indirectly on behalf of, or
facilitating such transaction directly or indirectly on behalf of, any such
Person.
5.10 Environmental Matters
5.10.1 Except as described in any report listed on Schedule
5.10, as of the Contract Date, FRP has received no written notice
from any Governmental Authority of any actual or potential violation
of or failure to comply with any Environmental Laws with respect to
the Company Parcel which remains uncorrected to FRP's Knowledge.
Schedule 5.10 is a true, correct and complete list of all reports
pertaining to the environmental condition and water quality of the
Company Parcel and any buildings or improvements thereon that are
in FRP's possession, custody or control.
5.10.2 To FRP's Knowledge, as of the Contract Date, no
Hazardous Substances are present on or in the Company Parcel,
other than (i) Hazardous Substances used as fuels, lubricants or
otherwise in connection with vehicles, machinery and equipment
located at the Company Parcel in commercially reasonable
amounts, which, to FRP's Knowledge (and except as disclosed in
any report listed on Schedule 5.10), have been stored and disposed
of in accordance with all applicable Legal Requirements and
Environmental Laws, and (ii) Hazardous Substances described in
any report listed on Schedule 5.10 as being present on the
Company Parcel.
5.10.3 To FRP's Knowledge and except as disclosed in
any report listed on Schedule 5.10, as of the Contract Date, (1) there
are no uncured violations of any Environmental Law with respect to
the Company Parcel or any portion thereof, (2) there is no on-site
or off-site contamination resulting from activities on the Company
Parcel (or any adjacent land or properties), and (3) other than the
underground storage tank that was the subject matter of the Existing
LUST Case, there are no storage tanks located on the Property
(either above or below ground) which contain Hazardous
Substances.
5.11 No Commitments. Except for commitments that are
expressly a part of the Existing PUD or set forth in the Initial PUD
Modification Application, FRP has not made or entered into any
material binding agreements with any Governmental Authority, utility
company, school board, church or other religious body, or any
public or private organization or individual, which agreements
would impose any obligation upon MRP or the Company after
Closing, whether to make any contribution of money or
dedications of land or to construct, install or maintain any
improvements of a public or private nature on or off the
Company Parcel, or otherwise, which would restrict or prohibit,
or otherwise materially and adversely affect (or render materially
more costly) the Company's development of the Company
Parcel in accordance with the PUD Modification .
5.12 Full Disclosure. To FRP's Knowledge, all written
information and documents delivered by FRP (or its representatives)
to MRP pursuant to this Agreement constitute true, correct and
complete copies of the originals, and have not been altered by
FRP (or such representatives) in any way. FRP has not knowingly
withheld from MRP any material information regarding the
Company Parcel (or bearing upon the planned Zoning Approval,
the future development the Company Parcel or, as it relates to the
future development of the Company Parcel, the integration of
Company Parcel and the balance of the Site), which is within
FRP's possession, custody or control other than confidential FRP
Information.
5.13 Brokers. Other than Jones Lang LaSalle (which the Company
shall pay pursuant to a separate agreement), no broker, finder or similar
consultant has acted on FRP's behalf in connection with this Agreement
or the transaction contemplated by this Agreement.
ARTICLE 6. MRP'S REPRESENTATIONS AND WARRANTIES
MRP hereby represents and warrants to FRP as follows:
6.1 Good Standing. MRP is a limited liability company, duly
organized, validly existing and in good standing under the laws of the
District of Columbia and has full power and authority to conduct the
business in which it is now engaged.
6.2 Due Authorization. The execution, delivery and performance of
this Agreement by MRP and the consummation by MRP of the
transactions contemplated by this Agreement have been duly and validly
authorized by all requisite actions of MRP. No consent or authorization
which has not been obtained prior to the date of this Agreement is
required in connection with the execution, delivery and performance of
this Agreement by MRP. Assuming the due execution and delivery of
this Agreement by FRP, this Agreement constitutes the valid and binding
obligation of MRP, enforceable against MRP in accordance with its terms.
6.3 No Violations. The execution, delivery and performance of
this Agreement by MRP and the consummation by MRP of the
transactions contemplated by this Agreement will not:(i)violate any
Legal Requirement or any order of any court or Governmental
Authority that is binding on MRP; or (ii)result in a breach of or
default under (A)any contract or other agreement to which MRP is a
party or (B) any provision of the organizational documents of
MRP.
6.4 Bankruptcy. MRP is not the subject debtor under any
federal, state or local bankruptcy or insolvency proceeding, or any
other proceeding for dissolution, liquidation or winding up of its assets.
6.5 Litigation. There are no Actions pending or, to MRP's
Knowledge, threatened against MRP before any court or
Governmental Authority which, if adversely determined, would materially
and adversely affect MRP's ability to enter into or perform its
obligations under this Agreement and/or the Company Agreement.
6.6 Terrorist Organizations Lists. MRP is not acting,
directly or indirectly, for or on behalf of any Person named by
the United States Treasury Department as a Specifically
Designated National and Blocked Person, or for or on behalf of any
Person designated in Executive Order13224 as a Person who
commits, threatens to commit, or supports terrorism. MRP is
not engaged in the transaction contemplated by this Agreement
directly or indirectly on behalf of, or facilitating such
transaction directly or indirectly on behalf of, any such Person.
6.7 Ownership of MRP. The organizational chart set
forth in Schedule 6.7 is a complete and accurate description of
the direct and indirect owners of MRP.
6.8 Brokers. No broker, finder or similar consultant has
acted on MRP's behalf in connection with this Agreement or the
transaction contemplated by this Agreement.
ARTICLE 7. CONDITIONS TO CLOSING
7.1 Mutual Condition to Closing. The obligation of MRP and
FRP to consummate the Closing shall be conditioned upon the
Zoning Approval having been obtained and the period for the filing
of any appeal to the Zoning Approval having lapsed without the filing
of any such appeal, or, if any appeal of the Zoning Approval is filed
in a timely manner, the successful and final resolution of any such
appeal(s) and any remands resulting therefrom, and the expiration
of the time period for the filing of any further appeal (the "Zoning
Approval Condition"). The foregoing mutual condition may be
waived upon the mutual written agreement of MRP and FRP.
7.2 Failure of Mutual Condition.
7.2.1 In the event that the Zoning Approval Condition is
not satisfied by the Initial Outside Closing Date, and provided
the PUD Modification is then still pending before, and under
consideration by, the Zoning Commission, then the Initial
Outside Closing Date shall automatically be extended to the
Extended Outside Closing Date, unless FRP, in its reasonable
discretion, determines that MRP is not diligently pursuing the
Zoning Approval, and notifies MRP of such determination in
writing no later than three (3) business days prior to the Initial
Outside Closing Date.
7.2.2 If the Initial Outside Closing Date is extended, as
aforesaid, and the Zoning Approval Condition is still not satisfied
as of the Extended Outside Closing Date, then FRP, in its sole and
absolute discretion, may elect to do one of the following by written
notice to MRP given within ten (10) Business Days after the
Extended Outside Closing Date (and any failure by FRP to give such
notice shall be deemed an election by FRP, pursuant to Section
7.2.2(i) below, to further extend the Extended Outside Closing Date
for a single period of thirty (30) days):
(i) further extend the Extended Outside Closing Date for such
additional period of not less than thirty (30) days as FRP determines
to be appropriate, in its sole and absolute discretion (provided
that if the Zoning Approval is not obtained by such modified
Extended Outside Closing Date, FRP may again elect, in its sole and
absolute discretion, to exercise any of the options described in this
Section 7.2.2, including this Section 7.2.2(i));
(ii) continue to pursue the Zoning Approval and replace or
remove MRP as Developer and development manager, in which case
FRP will be deemed to have elected to take an assignment
of the Development Work Product from MRP pursuant to the
Collateral Assignment of Development Work Product, Section 11.3
shall apply, and this Agreement, and the rights, liabilities, and/or
obligations of the parties under this Agreement other than those
which by their terms expressly survive any termination of this
Agreement, shall terminate; or
(iii) (A) terminate and withdraw the proposed PUD
Modification from consideration by the Zoning Commission, (B)
terminate the Collateral Assignment of Development Work Product
and FRP's rights thereunder (with no requirement for MRP to
assign all or any portion of the Development Work Product to FRP
and with MRP retaining sole ownership of such Development Work
Product, and with no requirement for FRP to reimburse MRP for
any Development Costs then incurred by MRP), and (C) terminate
this Agreement, following which neither party shall have any rights,
liabilities, or obligations under this Agreement except those that
expressly survive termination of this Agreement.
Notwithstanding anything to the contrary in this Agreement, this
Section 7.2 shall govern the rights and remedies of the parties
hereto to the extent that the Zoning Approval Condition is the
only condition to Closing not satisfied. Nothing set forth in this
Section 7.2, however, shall affect the rights or remedies of
MRP and FRP under (a) Sections 3.1.4 and 3.1.5 with
respect to the right to terminate, or (b) Section 11.1 and
Section 11.2 with respect to any breach of this Agreement by
the other party (including any breach which causes the failure
of the Zoning Approval Condition).
7.3 MRP's Conditions to Closing. The obligation of MRP
to consummate the Closing shall be subject to the satisfaction
of each of the following conditions on or before the Closing Date,
any or all of which may be waived in whole or in part by MRP:
7.3.1 Each of FRP's representations and warranties set
forth in this Agreement (other than in Section 5.5, which is
addressed in Section 7.3.4) shall be correct in
all material respects as of the Closing Date as if made by FRP
on and as of the Closing Date (except for those representations
and warranties that by their express terms only apply to the
Contract Date).
7.3.2 FRP shall have performed all of its material
obligations under this Agreement required at or prior to Closing,
including but not limited to delivery of the documents listed in
Section 8.3.
7.3.3 Title to the Company Parcel shall be good and
marketable fee simple title, subject only to the Permitted Exceptions,
and insurable at standard rates in an amount equal to the Parcel
Value.
7.3.4 The representations set forth in Section 5.5
continue to be true and correct in all material respects as of the
Closing Date, except to the extent that FRP agrees, in form and
substance reasonably acceptable to MRP, to indemnify MRP
and the Company from and after Closing against Damages
resulting from the Action that causes such representations not
to be true and correct. For the avoidance of doubt if FRP
indemnifies MRP with MRP's reasonable approval in accordance
with the previous sentence, this condition shall be deemed
satisfied. If the representations set forth in Section 5.5 shall
not, as of the Closing Date, continue to be true and correct in
all material respects other than as a result of a default by FRP
in any obligation under this Agreement, then such failure shall
not be a default by FRP under this Agreement.
7.3.5 The representations set forth in Section 5.10.1,
Section 5.10.2 and Section 5.10.3 continue to be true and
correct in all material respects as of the Closing Date, as if
such representations had been remade on the Closing Date
and the phrase "Contract Date" had been replaced by the
phrase "Closing Date" in each instance where such phrase
appears in Section 5.10.1, Section 5.10.2 and Section
5.10.3, except to the extent that any inaccuracy in such
representations is based upon or arises out of (i) the
Known Hazardous Substances, (ii) any other Hazardous
Substances existing on the Company Parcel as of the
Contract Date, and/or (iii) the introduction, discharge or
release of Hazardous Substances by MRP.
7.4 Failure of MRP's Condition. In the event of the
failure of any condition set forth in Section7.3, MRP, at its
sole election, may (i)terminate this Agreement by written
notice to FRP, (ii) extend the date for Closing by thirty (30)
days to permit such condition to be satisfied (but in no
event beyond the Outside Closing Date), or (iii) waive the
condition and proceed to Closing. Nothing set forth in this
Section 7.4 shall affect MRP's rights or remedies under
Section 11.2 with respect to any breach of this Agreement
by FRP (including any breach which causes or contributes
to the failure of any such condition to Closing).
7.5 FRP's Conditions to Closing. The obligation of FRP
to consummate the Closing shall be subject to the satisfaction
of each of the following conditions on or before the Closing Date,
any or all of which may be waived in whole or in part by FRP:
7.5.1 Each of MRP's representations and warranties
set forth in this Agreement shall be correct in all material respects
as of the Closing Date as if made by MRP
(or, if applicable, MRP Designee) on and as of the Closing
Date (except for those representations and warranties that by
their express terms only apply to the Contract Date); provided
that any change to the organizational chart of MRP shall be
permitted (without resulting in a violation of the representation
set forth in Section 6.7) so long as such changes do not violate
Section 4.8.
7.5.2 MRP shall have performed all of its material
obligations under this Agreement required at or prior to Closing,
including delivery of the documents listed in Section 8.4.
7.6 Failure of FRP's Condition. In the event of the failure of
any condition precedent set forth in Section 7.5, FRP, at its sole
election, may (i) terminate this Agreement by written notice to
MRP, (ii) extend the date for Closing by thirty (30) days to
permit such condition to be satisfied (but in no event beyond the
Outside Closing Date), or (iii) waive the condition and proceed to
Closing. Nothing set forth in this Section 7.6 shall affect FRP's
rights or remedies under Section11.1 with respect to any breach
of this Agreement by MRP (including any breach which causes
or contributes to the failure of any such condition to Closing).
ARTICLE 8. CLOSING
8.1 Timing of Closing. Subject to the satisfaction or written
waiver of all other applicable conditions to Closing, Closing shall
occur on a date which is not more than ten (10) Business Days
after the date upon which the Zoning Approval becomes final and
non-appealable, or such Zoning Approval condition has been
waived in writing by both MRP and FRP; provided that in no
event shall the Closing Date occur later than the Outside Closing
Date.
8.2 Conduct of Closing. Closing shall be conducted through
an escrow with the Title Company acting as escrow agent (in such
capacity, "Escrow Agent"), and FRP and MRP shall execute
(or cause their counsel to execute) such additional instructions to
Escrow Agent as may be required in connection therewith,
provided such instructions do not modify or amend, and are in
all respects consistent with, the terms of this Agreement.
Pre-closing ("Pre-Closing") shall be held on the Business Day
immediately preceding the Closing Date. At Pre-Closing, FRP
and MRP shall execute and deliver or cause to be executed and
delivered to Escrow Agent all documents and deliveries
required under Sections 8.3 and 8.4, other than the payment
of the amounts required on the Settlement Statement to be
advanced by MRP or the Company. FRP and MRP shall
complete and execute the Settlement Statement, and, provided
all required Closing deliveries to the Escrow Agent have been
made pursuant to Section 8.3 and Section 8.4, and no condition
to Closing remains both unsatisfied and unwaived at the time
such funding is otherwise required: (1) MRP shall advance and
cause the Company to advance the amounts required to be
paid by MRP and/or the Company on the Settlement
Statement by wire transfer of immediately available funds, and
(2) FRP shall advance any amount required to be paid by
FRP on the Settlement Statement (if any) by wire transfer
of immediately available funds, in both cases such that the
amounts payable pursuant to the Settlement Statement are
available to Escrow Agent be disbursed no later than 3:00
p.m. Washington, D.C. time on the Closing Date.
8.3 FRP's Closing Deliveries. At or prior to Closing,
FRP shall deliver (or cause to be delivered) to Escrow
Agent the following:
8.3.1 A deed for the Company Parcel substantially in
the form of Exhibit D ("Deed") conveying to the Company the
fee estate in the Company Parcel and the improvements thereon,
subject only to the Permitted Exceptions, duly executed and
acknowledged by FRP, and dated as of the Closing Date.
8.3.2 A bill of sale, substantially in the form of Exhibit E,
duly executed by FRP and dated as of the Closing Date.
8.3.3 A General Assignment, substantially in the form of
Exhibit F, duly executed by FRP and dated as of the Closing
Date (the "General Assignment").
8.3.4 The Company Agreement, executed by FRP and
dated as of the Closing Date.
8.3.5 A certificate, duly executed by FRP, confirming
that its representations and warranties set forth in this
Agreement are correct in all material respects as if made on
the Closing Date (or noting any exceptions).
8.3.6 A release and termination of the Collateral
Assignment of Development Work Product.
8.3.7 A title affidavit and gap indemnity, in customary
form reasonably satisfactory to the Title Company and FRP,
with respect to mechanics' liens, parties in possession and
unrecorded instruments, duly executed by FRP.
8.3.8 An affidavit, in the form required by the Code
and the regulations issued pursuant thereto, to the effect that
FRP is not a foreign person within the meaning of the Code.
8.3.9 Such evidence of the power and authority of
FRP to consummate the transactions described in this
Agreement as may be reasonably required by MRP or the
Title Company.
8.3.10 A settlement statement setting forth Closing
Costs, and all prorations and adjustments described in
Article 9, and otherwise consistent with the terms of this
Agreement, duly executed by FRP (the "Settlement Statement").
8.3.11 The REA, duly executed by FRP.
8.3.12 Such other documents and instruments as are
customary and as may be reasonably requested by MRP,
Escrow Agent or the Title Company, to effectuate the transactions
contemplated by this Agreement.
8.4 MRP's Closing Deliveries. At or prior to Closing, MRP
shall deliver to (or cause to be delivered to) Escrow Agent
the following:
8.4.1 The Company Agreement, duly executed by
MRP (or, if applicable, MRP Designee) and dated as of the
Closing Date.
8.4.2 An assignment to the Company of all Development
Work Product, duly executed by MRP (or, if applicable, MRP
Designee) and the Company, in form reasonably approved by
FRP, and dated as of the Closing Date.
8.4.3 The General Assignment, duly executed by
MRP for the Company in MRP's capacity as a Administrative
Member of the Company.
8.4.4 A certificate, duly executed by MRP, confirming
that its representations and warranties set forth in this
Agreement are correct in all material respects as if made on
the Closing Date (or noting any exceptions).
8.4.5 If applicable, a certificate from MRP Designee,
duly executed by MRP Designee, confirming that MRP's
representations and warranties set forth in the Agreement are
correct in all material respects as if made by such MRP
Designee on the Closing Date (or noting any exceptions).
8.4.6 Such evidence of the power and authority of
MRP, the MRP Designee, and/or the Company to
consummate the transactions described in this Agreement as
may be reasonably required by FRP or the Title Company.
8.4.7 The Settlement Statement, duly executed by
MRP, MRP Designee (if applicable) and/or the Company.
8.4.8 Any other normal and customary deliveries that
the Company, in its capacity as transferee of the Company
Parcel, is required to provide pursuant to Schedule B-Part 1
of the Title Commitment in order for the Title Company to issue
the Title Policy to the Company at regular rates (and which FRP
hereby authorizes MRP to execute and/or deliver on behalf of,
and/or in the name of, the Company).
8.4.9 The REA, duly executed by the Company.
8.4.10 The Development Agreement, duly executed by
the Company and the Developer.
8.4.11 Such other documents and instruments as are
customary and as may be reasonably requested by FRP,
Escrow Agent or the Title Company with respect to MRP,
MRP Designee and/or the Company to effectuate the transactions
contemplated by this Agreement.
8.5 Closing Costs. The Company shall pay the following
Closing costs: (i) all title insurance premiums and related costs;
(ii) all escrow charges and settlement fees; and (iii) all District
of Columbia Transfer Taxes and District of Columbia
Recordation Taxes applicable to the recordation of the
Transactions Documents. FRP and MRP shall each bear its
own consultant's and attorney's fees and expenses incurred
in connection with the transactions described in this Agreement
and the execution of the Transaction Documents. MRP shall
pay all of its Due Diligence Costs. All other costs incurred in
connection with this Agreement and the transactions
contemplated hereby shall be paid in accordance with the
express terms of this Agreement. Notwithstanding anything
to the contrary in this Agreement, the costs borne individually
by FRP and MRP under this Section 8.5 shall not be credited
to their respective Initial Capital Contributions, provided any
sums advanced by MRP or FRP to the Company so that the
Company can fund Closing costs required to be paid by the
Company in accordance herewith will be credited as part of
the Initial Capital Contribution of the party making such
advance to the Company.
ARTICLE 9. PRORATIONS
9.1 Prorations Generally. Subject to Section 2.2.1(c), all
items of income and expense of the Company Parcel with
respect to the period prior to the Closing Date shall be for the
account of FRP, and all items of income and expense of the
Company Parcel with respect to the period from and after the
Closing Date shall be for the account of the Company.
9.2 Taxes. All ad valorem real estate taxes, and other taxes,
levies and assessments with respect to the Company Parcel shall
be apportioned between FRP and the Company as of the
Apportionment Time. If the exact amount of such taxes cannot
be determined at Closing, such apportionment shall be based upon
reasonable estimates of such taxes, subject to readjustment
upon the date that actual taxes can be determined.
9.3 Tax Appeals. FRP shall have the right to initiate any
appeal of any taxes or assessments applicable to the Company
Parcel through Closing. If any appeal of any taxes or
assessments applicable to the Company Parcel is pending as of
the Closing Date with respect to any tax period that has closed
prior the Apportionment Time, FRP shall be entitled to receive
any rebate or credit resulting from such appeal, and shall pay all
expenses of prosecuting such appeal. If any appeal of any taxes
or assessments applicable to the Company Parcel is pending as
of the Closing Date with respect to any tax period in which the
Apportionment Time occurs or after the Apportionment Time
occurs (each, a "Current Year Tax Appeal"), then after Closing
the Company shall continue the prosecution of each such
Current Year Tax Appeal to the extent applicable to the
Company Parcel, FRP shall cooperate in connection therewith,
and such taxes or assessments shall be re-prorated between
FRP and the Company as of the Apportionment Time in
accordance with the results of such Current Year Tax Appeal.
FRP and the Company shall cooperate in the prosecution of
each Current Year Tax Appeal. All third party costs and fees
incurred in connection with any Current Year Tax Appeal,
including legal fees and expenses, shall be paid by FRP to
the extent equitably allocable to the period prior to the
Closing Date, and shall be paid by the Company to the
extent equitably allocable to the period on or after the
Closing Date. If such appeal relates to any tax period in
which the Company Parcel was not a separate tax parcel,
the cost and benefits associated with such appeal shall be
equitably allocated to all parcels or properties which are
within the scope of such appeal, for the period in which
they were not separate tax parcels, with such allocation
to be based on the relative share of each such property
or parcel in any tax reduction or refund sought or
obtained in such appeal.
9.4 Utilities. Water, sewer, electricity, gas, and other
utilities serving the Company
Parcel shall be apportioned between FRP and the Company as
of the Apportionment Time. To the extent the Company Parcel
is not separately metered from the remainder of the Site, the
parties will agree on a reasonable allocation of the utilities serving the
Company Parcel, on the one hand, and the remainder of the Site, on
the other hand.
9.5 Other Items. All other items shall be prorated as is
customary practice in Washington, D.C.
9.6 Survival. This Article 9 shall survive Closing.
ARTICLE 10. AS IS TRANSFER
10.1 Condition of Company Parcel.
10.1.1 MRP acknowledges that, except as expressly provided
for in this Agreement and the other Transaction Documents executed by
FRP: (i) as of the Contract Date MRP has been given a reasonable
opportunity to inspect and investigate the Company Parcel, all
improvements thereon and all aspects relating thereto, including all of
the physical, environmental and operational aspects of the Company
Parcel, either independently or through agents and experts of MRP's
choosing, and (ii) the Company will acquire the Company Parcel
based solely upon MRP's own investigation and inspection thereof
and the representations, warranties and covenants of FRP expressly
set forth in the Transaction Documents executed by FRP. FRP AND
MRP AGREE THAT, EXCEPT AS EXPRESSLY PROVIDED FOR
IN THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS EXECUTED BY FRP, (I) THE COMPANY
PARCEL SHALL BE TRANSFERRED AND THE COMPANY
SHALL ACCEPT POSSESSION OF THE COMPANY PARCEL
ON THE CLOSING DATE "AS IS," "WHERE IS," AND "WITH
ALL FAULTS" AS THE SAME EXIST ON THE CONTRACT
DATE (SUBJECT TO REASONABLE WEAR AND TEAR AND
DAMAGE BY CASUALTY) AND (II) SUCH CONTRIBUTION
SHALL BE WITHOUT REPRESENTATION OR WARRANTY
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING ANY WARRANTY OF INCOME
POTENTIAL, OPERATING EXPENSES, USES,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND FRP HEREBY DISCLAIMS AND RENOUNCES
ANY SUCH REPRESENTATION OR WARRANTY. MRP
FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT
AS EXPRESSLY PROVIDED IN THE TRANSACTION
DOCUMENTS EXECUTED BY FRP, FRP SHALL BE UNDER
NO DUTY TO MAKE ANY AFFIRMATIVE DISCLOSURE
REGARDING ANY MATTER WHICH MAY BE KNOWN TO
FRP, OR ITS OFFICERS, DIRECTORS, CONTRACTORS,
AGENTS OR EMPLOYEES, AND THAT IT IS RELYING
SOLELY UPON ITS OWN INSPECTION OF THE
COMPANY PARCEL AND NOT UPON ANY
REPRESENTATIONS MADE TO IT BY ANY PERSON
WHOMSOEVER ON FRP'S BEHALF.
10.1.2 Except as provided in Section 10.1.3, MRP, on
behalf of itself and the Company, hereby waives, releases and
forever discharges FRP, and its officers, directors and employees,
from any and all Damages, whether known or unknown, which
MRP or the Company has or may have in the future, arising out
of or in connection with the Company Parcel, including the physical,
environmental, governmental, economic or legal condition of the
Company Parcel. For the foregoing purposes, MRP, on behalf of
itself and the Company, hereby specifically waives the provisions
of any law the import of which is that a general
release does not extend to claims which the creditor does not
know or suspect to exist in the creditor's favor at the time of
executing the release, which if known by the creditor must have
materially affected a settlement with the debtor.
10.1.3 Notwithstanding any waiver and/or release (and/or
any other exculpatory language) set forth in Section 10.1.1 and/or
Section 10.1.2 to the contrary, in no event will MRP or the
Company be deemed or construed to have released FRP from or
with respect to: (i) any Damages arising out of any breach of any
express representation, warranty or covenant set forth in this
Agreement or any other Transaction Document executed by
FRP, and ii) any Damages arising from a claim which is asserted
(in any form) against MRP or the Company by any Person that
is not an MRP Principal or affiliated with an MRP Principal, in
connection with the physical condition of the Company Parcel,
or otherwise relating to the Company Parcel, based upon acts,
omissions, events or circumstances occurring prior to the Closing
Date, but expressly excluding any such claim that is based upon
or arises out of Hazardous Substances (including the Known
Hazardous Substances) (the foregoing, collectively, "Third
Party Claims"). For clarity, Section 10.1.1 and Section 10.1.2
do not prohibit MRP or the Company from impleading FRP in
any litigation brought by third parties where FRP may have
liability to such third parties (even if MRP and the Company
have released FRP from such liability).
10.1.4 This Section10.1 shall survive the Closing
without limitation as to time.
10.2 Remediation of Known Hazardous Substances.
10.2.1 MRP and FRP agree that, in connection with
its construction of the Initial Improvements, the Company shall
conduct the following activities (which shall be collectively
referred to as "Remediation Activities"), unless otherwise
undertaken by FRP pursuant to Section 10.2.7: (i) remediate
or dispose of the Known Hazardous Substances (including
water, soil and other substances at the Company Parcel
impacted by Known Hazardous Substances), provided
however that such remediation or disposal shall be
consistent with the Cleanup Standard; (ii) remediate or
dispose of any Known Hazardous Substances as necessary
to obtain closure under the Existing LUST Case, provided
however that such remediation or disposal shall be consistent
with the Cleanup Standard; and (iii) obtain closure of the
Existing LUST Case.
10.2.2 FRP and MRP shall have the right to approve
(which approval shall not be unreasonably withheld, conditioned
or delayed): (i) all consultants and contractors that may be
conducting any Remediation Activities, and (ii) the disposal
sites, treatment facilities and/or methods for any Remediation
Activities.
10.2.3 The Company shall coordinate with its
contractors and consultants to develop a work plan (which may
include leaving the Known Hazardous Substances on the
Company Parcel, diluting the Known Hazardous Substances,
and/or the use of institutional controls) for the Remediation
Activities, and such work plan (including costs related thereto)
shall be subject to the prior written approval of MRP and FRP,
which approval shall not be unreasonably withheld, conditioned
or delayed.
10.2.4 Subject to Section 10.2.8, from and after the
Closing, FRP shall reimburse the Company for all reasonable
costs incurred by the Company in connection with the
Remediation Activities to the extent that, and only to the extent
that, the cost of such Remediation Activities are a direct result of
the Known Hazardous Substances and are in excess (on a net basis)
of the reasonable and customary expenses that would otherwise
be incurred in connection with development of the Company
Parcel and construction of the Initial Improvements (collectively,
"Reimbursable Costs"). As illustrations, only, and without
limitation and/or without prejudice:
(a) FRP will reimburse the Company for the sum of (i)
the excavation, transportation, disposal and, if applicable,
backfilling and/or soils replacement costs, for Remediation
Activities which require the excavation of contaminated soils
in a particular portion of the Company Parcel, as necessary to
achieve a Cleanup Standard with respect thereto, less (ii) the
excavation, transportation, disposal and, if applicable,
backfilling or soils replacement costs (if any) that would have
been incurred with respect to the same portion of the Company
Parcel absent the presence of contaminated soils consisting
solely of Known Hazardous Substances in such quantity
or concentration so as to require modified excavation,
transport, disposal or backfilling and/or soil replacement
(i.e., both the incremental additional cost associated with
proper lawful disposal of contaminated soils with a
governmentally licensed facility, and the cost of any additional
excavation, and related backfilling and/or soil replacement,
which is required because of the presence of contaminated
soils to the extent consisting of Known Hazardous Substances
in such portion of the Company Parcel).
(b) FRP will reimburse the Company for the sum of (i)
the extraction, transportation and disposal costs of water
necessary to achieve a Cleanup Standard less (ii) the extraction,
transportation and disposal costs of the same quantity of water,
if any, absent the presence of a Known Hazardous Substance in
such quantity or concentration so as to require modified extraction,
transport or disposal.
(c) If the disposal of water were a Remediation Activity,
and if, in order to achieve a Cleanup Standard it were necessary to
dispose the water into the District of Columbia Water and Sewer
Authority (WASA") system, and if there are additional net costs
associated with such disposal (such as pretreatment) as a result of
a Known Hazardous Substance, such additional net costs may
constitute Reimbursable Costs if such costs are otherwise
reimbursable pursuant to this Agreement.
(d) If the disposal of soil were a Remediation Activity,
and if, in order to achieve a Cleanup Standard it were necessary to
dispose of such soil in a particular landfill, and if there are additional
net costs associated with such disposal as a result of an Known
Hazardous Substance, such additional net costs may constitute
Reimbursable Costs if such costs are otherwise reimbursable
pursuant to this Agreement.
10.2.5 Reimbursable Costs may include: (i) any
groundwater monitoring
wells as may be required by a Governmental Authority or as
approved by FRP, (ii) the operation and maintenance of any
institutional controls if approved as part of the work plan
pursuant to Section 10.2.3, (iii) the reasonable cost of an
environmental consulting firm and counsel hired to facilitate
and expedite the Remediation Activities (unless provided
directly by FRP or its insurer), and (iv) the reasonable
administrative and legal costs associated with obtaining
closure of the Existing LUST Case (unless provided directly
by FRP or its insurer). Without limitation, Reimbursable
Costs shall not include consequential or punitive damages.
10.2.6 FRP shall reimburse costs pursuant to this
Section 10.2 within thirty (30) days after presentation of an
invoice and such documentation of costs as may be reasonably
requested by FRP. If FRP in good faith disputes whether an
invoice constitutes a Reimbursable Cost, FRP shall, in lieu of
payment, notify the Company in writing within thirty (30) days
after presentation of an invoice the reason(s) why FRP believes
the expense does not constitute a Reimbursable Cost. The
parties agree to negotiate in good faith to resolve any
disagreement expeditiously. If, after thirty (30) days, the parties
are unable to resolve their disagreement, either party may
invoke the arbitration provisions of Exhibit B to the
Company Agreement. Any costs or other amounts which
are found to be due and owing from FRP to MRP or the
Company pursuant to this Section 10.2, but which was not
paid by FRP within the aforementioned thirty (30) day
period, shall bear interest from the date the amount in
question was paid by MRP or the Company until the date
such payment or reimbursement is made by FRP, at an
annual interest rate equal to the lesser of (1) twelve
percent (12%) per annum, or (2) the highest annual
interest rate permitted under applicable law.
10.2.7 Notwithstanding anything to the contrary
herein, FRP shall at all times prior to commencement of
construction of the Initial Improvements have the right to
enter onto the Company Parcel to excavate, remove,
stabilize, treat and/or dispose of Known Hazardous Substances,
provided that (i) such activities by FRP may not cause material
adverse delay or additional expense to the Company's plans
for Initial Improvements; (ii) all such activities shall be
performed in accordance with all applicable Environmental
Laws and approved by all Governmental Authorities with
jurisdiction over such matters (if and to the full extent such
approval is required); and (iii) all such activities shall be
funded by FRP, but subject to adjustment and reimbursement
by the Company on a net basis consistent with Section
10.2.4, if and to the extent applicable.
10.2.8 Promptly following the Contract Date, FRP
and MRP, each acting reasonably and in good faith, shall
endeavor to agree upon a maximum aggregate amount ("Cap")
for which FRP may be liable to the Company pursuant to this
Section 10.2. If FRP and MRP shall agree upon a Cap, they
shall promptly reflect the same in an amendment to this
Agreement (a "Cap Amendment"). If such Cap Amendment
shall not have been executed by the date that is sixty
(60) days after the Contract Date, then either FRP or
MRP may terminate this Agreement by written notice to
the other given at any time thereafter but prior to the
execution of such Cap Amendment, following which (i)
this Agreement shall be of no further force and effect, (ii)
Section 11.3 shall apply, and (iii) other than as set forth
in subclause (ii), neither party shall have any further rights,
obligations or liabilities to the other party other than those
that expressly survive termination of this Agreement
10.2.9 This Section 10.2 shall survive Closing
without limitation as to time.
ARTICLE 11. DEFAULT AND REMEDIES
11.1 MRP's Default at or prior to Closing. If (a) MRP
or MRP Designee defaults in any material obligation under this
Agreement prior to Closing, (b) MRP or MRP Designee defaults
in its obligation to proceed to the Closing in accordance with this
Agreement, or (c) if any condition set forth in Sections 7.5.1 or
7.5.2 is not satisfied and FRP elects not to proceed to the Closing,
then FRP shall give MRP written notice of such default or the failure
of such condition. If MRP shall fail to cure such default or satisfy
such condition within fifteen(15) Business Days after receipt of
such notice (but in no event later than the Outside Closing
Date), then FRP, as its exclusive and sole right and remedy,
shall have the right to (i) terminate this Agreement by written
notice to MRP, and (ii) exercise its rights under the Collateral
Assignment of Development Work Product. Upon any such
termination of this Agreement, this Agreement shall be of no
further force or effect and neither party shall have any further
rights, obligations or liabilities to the other party other than
those that expressly survive termination of this Agreement.
FRP hereby waives any right to recover damages (whether
actual, consequential, punitive or other) as a result of the
defaults or failure of the conditions described above,
except as described in this Section11.1.
11.2 FRP's Default at or prior to Closing. If (a) FRP
defaults in any material obligation under this Agreement prior
to Closing, (b) FRP defaults in its obligation to proceed to
Closing in accordance with this Agreement, or (c) if any
condition set forth in Section 7.3.1 or 7.3.2 is not satisfied
and MRP elects not to proceed to Closing, then MRP shall
give FRP written notice of such default or the failure of such
condition. If FRP shall fail to cure such default or satisfy such
condition within fifteen (15) Business Days after receipt of
such notice (but in no event later than the Outside Closing
Date), then MRP shall be entitled, as its exclusive and sole
remedy, to (i) receive from FRP reimbursement of the
Development Costs that MRP has then incurred in accordance
with the Pre-Development Budget, and (ii) terminate the
Collateral Assignment of Development Work Product and
FRP's rights thereunder (without being required to assign all or
any portion of the Development Work Product to FRP).
Upon termination, this Agreement shall be of no further
force and effect and neither party shall have any further
rights, obligations or liabilities to the other party other than
those that expressly survive termination of this Agreement.
In connection with FRP's reimbursement obligation, MRP
shall also have the right to recover interest from FRP on any
unpaid portion of such reimbursement, calculated at a rate of
twelve percent (12%) per annum (which interest shall accrue
and be payable from the date such reimbursement was originally
due and payable hereunder until the date such reimbursement
amount was actually paid in full), which shall survive any
termination of this Agreement. MRP hereby waives any right
to recover damages (whether actual, consequential, punitive
or other) as a result of the FRP defaults or failure of the
conditions described above except as described in this Section
11.2.
11.3 Failure to Close without Default. If the Agreement
is terminated at or prior to Closing for any reason other than
the default of FRP or MRP, which may include the failure of a
condition to Closing as long as such failure is not attributable
to the default of FRP or MRP, FRP shall have the right to
exercise its rights under the Collateral Assignment
of Development Work Product by (i) providing written notice
of such exercise to MRP, and (ii) reimbursing MRP for its
Development Costs as and when provided for in the next
sentence. If FRP shall so elect to exercise its rights under
the Collateral Assignment of Development Work Product,
FRP shall reimburse MRP for all Development Costs
incurred by MRP in accordance with the Pre-Development
Budget, within thirty (30) days after receipt by FRP of
reasonable substantiating documentation. In connection
with such reimbursement obligation, MRP shall also have
the right to recover interest from FRP on any unpaid portion
of such reimbursement amount, calculated at a rate of twelve
percent (12%) per annum (which interest shall accrue and be
payable from the date such reimbursement was originally due
and payable hereunder until the date such reimbursement is
actually paid in full), which shall survive any such termination
of this Agreement. Notwithstanding the foregoing, this
Section 11.3 shall not apply in the event of any termination of
this Agreement pursuant to Section 7.2.2 (iii).
11.4 Default after Closing. The provisions of this Section
11.4 shall apply solely to the extent Closing is consummated
under this Agreement, as follows:
11.4.1 Subject to any express provisions of this
Agreement to the contrary, from and after Closing, FRP hereby
agrees to indemnify MRP, MRP Designees, the Company, and
their respective directors, officers, employees, partners,
members and affiliates (collectively, "MRP Indemnified Parties"),
and to hold MRP Indemnified Parties harmless from and against,
any and all Damages paid or incurred by MRP Indemnified
Parties due to (i) any breach of any representation or warranty
made by FRP in this Agreement or any other Transaction
Document executed by FRP, and (ii) any breach of any
covenant made by FRP in this Agreement or any other
Transaction Document executed by FRP.
11.4.2 Subject to any express provisions of this
Agreement to the contrary, from and after Closing, MRP
hereby agrees to indemnify FRP, the Company, and their
respective directors, officers, employees, partners, members
and affiliates (collectively, "FRP Indemnified Parties"), and to
hold FRP Indemnified Parties harmless from and against, any
and all Damages paid or incurred by FRP Indemnified Parties
due to (i)any breach of any representation or warranty made
by MRP or MRP Designee in this Agreement or any other
Transaction Document executed by MRP or by MRP Designee,
and (ii)any breach of any covenant made by MRP or MRP
Designee in this Agreement or any other Transaction Document
executed by MRP or by MRP Designee.
11.4.3 With regard to each party's right to assert a
direct claim against the other party pursuant to Section 11.4.1(i)
and/or Section11.4.2(i), as applicable, such right shall survive
Closing until the date that is one (1) year after the Closing Date,
and shall thereafter expire, and be null and void. With regard to
each party's right to assert a claim against the other party
pursuant to Section 11.4.1(ii) and/or Section 11.4.2(ii), as
applicable, such right shall survive Closing without time limitation
other than any applicable statute of limitations. From and after
Closing, and excluding any other obligations and liabilities of the
parties provided for under the express terms of this Agreement
or under the express terms of any of the other Transaction
Documents being delivered at Closing hereunder (including the
Company Agreement), all of which shall survive Closing without
limitation,
the right to seek Damages and indemnification under this
Section 11.4 shall be the exclusive remedies of FRP, on the
one hand, and MRP, MRP Designee or the Company, on the
other hand, in connection with any post-Closing claims arising
out of the matters described in this Section11.4 and the
transaction described in this Agreement, each party hereby
waiving and releasing any and all other rights or remedies it may
have under applicable law or at equity in connection therewith.
11.4.4 Notwithstanding any other provision of this
Agreement to the contrary: (a) if at or prior to Closing MRP
obtains MRP's Knowledge that any representation or warranty
of FRP under this Agreement is inaccurate in any respect and/or
FRP has breached a covenant under this Agreement or the
Transaction Documents, but nonetheless proceeds to Closing,
MRP and the MRP Designee(s) shall be deemed to have
waived any right to make a claim arising out of such inaccuracy
or breach, and (b) if at or prior to Closing FRP obtains
FRP's Knowledge that any representation or warranty of MRP
or the MRP Designee(s) under this Agreement is inaccurate in
any respect and/or MRP has breached a covenant under this
Agreement or the Transaction Documents, but nonetheless
proceeds to Closing, FRP shall be deemed to have waived
any right to make a claim arising out of such inaccuracy or
breach, provided that (i) the foregoing notwithstanding, the
waiver provided for above shall not apply, and shall be null
and void, with respect to any knowing and deliberate
misrepresentation or intentional breach made by a party to
this Agreement at the time of final execution and delivery
hereof, or remade by such party as of the Closing Date, unless
the other party had Actual Knowledge of such misrepresentation
more than thirty (30) days prior to the Closing Date and failed
to avail itself of its rights and remedies with respect thereto
promptly after acquiring Actual Knowledge thereof. The
parties agree that the term "knowing and deliberate
misrepresentation" shall require the party making the
representation to have done so with Actual Knowledge that
the matter represented was false in some material respect.
11.5 Survival. Except where this Agreement expressly
provides for a longer period: (A) the representations and
warranties of FRP and MRP set forth in this Agreement and
the indemnities based thereon shall survive Closing until the
date that is one (1) year after the Closing Date (and
any Action for breach of such representation or warranty must
be instituted on or before such date), and (B) the covenants
and indemnities based thereon of FRP and MRP set forth in
this Agreement shall survive Closing and continue until the date
upon which an Action for the breach thereof is barred under
the statute of limitations applicable thereto (and any Action
for breach of such covenant or indemnity must be instituted
on or before such bar date). This Article 11 shall
survive termination of this Agreement and the Closing.
11.6 Attorneys' Fees. In the event that any party to this
Agreement shall default hereunder, then the other party shall
have the right to recover reasonable attorneys' fees in
enforcing this Agreement. This Section 11.6 shall survive any
termination of this Agreement.
ARTICLE 12. MISCELLANEOUS
12.1 Assignment.
12.1.1 MRP shall not assign this Agreement without the
consent of FRP, other than to an MRP Designee in accordance
with this Section 12.1. Upon thirty (30) days prior written notice
to FRP, MRP shall have the right to assign this Agreement to
another Person ("MRP Designee") that is an MRP Affiliate. MRP
shall provide to FRP such information as FRP may reasonably
request to confirm the direct and indirect ownership and Control
of MRP Designee. Upon the designation of MRP Designee, MRP
Designee shall be deemed to have assumed for the benefit of FRP
all obligations of MRP under this Agreement, but such designation
shall not relieve MRP of its obligations under this Agreement.
12.1.2 FRP shall not assign this Agreement, nor will FRP
transfer or assign (whether by sale, ground lease, contribution or
a joint venture transaction) or market any of its right, title and
interest in and to the Company Parcel prior to Closing, without
the consent of MRP.
12.2 Notices. Notices and other communications required
or permitted under this Agreement shall be in writing and
delivered by hand against receipt or sent by recognized overnight
delivery service, by certified or registered mail, postage prepaid,
with return receipt requested or by facsimile. All notices shall be
addressed as follows:
If to FRP:
Florida Rock Properties, Inc.
c/o FRP Development Corp.
34 Loveton Circle, Suite 100
Sparks, MD 21152
Attn: David H. deVilliers, Jr., President
Phone: 410/771-4100
Fax: 410/771-8150
with a copy to:
Arnold & Porter LLP
555 12th Street, N.W.
Washington, D.C. 20004
Attn: Michael D. Goodwin, Esquire
Phone: 202/942-5558
Fax: 202/942-5999
If to MRP:
MRP SE Waterfront Residential, LLC
c/o MidAtlantic Realty Partners, LLC
3050 K Street, N.W., Suite 125
Washington DC 20007
Attn: Robert J. Murphy
Phone: (202) 719-9000
Fax: (202) 719-9050
with a copy to:
Tenenbaum & Saas, PC
4504 Walsh Street, Suite 200
Chevy Chase, MD 20815
Attn: Mark S. Tenenbaum, Esq.
Phone: (301) 961-4965
Fax: (301) 961-5305
If to the Title Company or Escrow Agent:
Commonwealth Land Title Insurance Company
1015 15th Street, N.W., Suite 300
Washington, D.C. 20005
Attn: David P. Nelson
Phone: (202) 312-5109
Fax: (202) 737-4108
or to such other addresses as may be designated by a
proper notice. Notices shall be deemed to be effective
upon actual receipt (or refusal thereof) if personally
delivered, sent by recognized overnight delivery service,
or sent by certified or registered mail, postage prepaid,
with return receipt requested, or upon electronically
verified transmission, if such delivery is by facsimile.
Notices may be given on behalf of a party by such
party's legal counsel. Notices shall be deemed to
include all attachments, enclosures or other documents
delivered with such Notice.
12.3 Waiver of Jury Trial; Jurisdiction. FRP and
MRP each hereby waives any right to jury trial in the
event any party files an Action relating to this Agreement
or to the transactions or obligations contemplated by this
Agreement. Any Action arising out of this Agreement or
the transactions contemplated by this Agreement shall be
brought exclusively in federal or local courts having
jurisdiction over the District of Columbia, and FRP and
MRP agree that such courts are the most convenient
forum for resolution of any such Action and further agree
to submit to the jurisdiction of such courts and waive any
right to object to venue in such courts. Nothing in this
Section 12.3 is intended to limit or eliminate either
party's right to seek arbitration under the express
terms of this Agreement. This Section 12.3 shall
survive termination of this Agreement and the Closing.
12.4 Counterparts and Effectiveness. This
Agreement may be executed in any number of counterparts
which, when taken together, shall constitute a single binding
instrument. Delivery of an executed counterpart of this
Agreement (or of any document or instrument contemplated
herein) by electronic means, including by facsimile transmission
or by electronic mail delivery of a scanned counterpart hereof
(in PDF format), shall be sufficient for all purposes, shall be
binding on any Person who so executes this Agreement (or such
document or other instruments) and shall constitute good and
valid execution and delivery for all legal purposes.
12.5 Confidentiality.
12.5.1 MRP acknowledges that certain information
heretofore or hereafter furnished by or on behalf of FRP to
MRP Representatives with respect to the Company Parcel or
the Site has been and will be so furnished on the condition
that MRP Representatives maintain the confidentiality
thereof. Accordingly, but subject to the further terms and
limitation of this Section 12.5, MRP shall hold, and shall
cause the other MRP Representatives to hold, in strict
confidence, and MRP shall not disseminate or disclose,
and shall prohibit the other MRP Representatives from
disseminating and/or disclosing, to any other Person
without the prior written consent of FRP: (i) the terms of
this Agreement, (ii) any information delivered by or on
behalf of FRP to MRP Representatives pursuant to this
Agreement, and (iii) any information regarding the Company
Parcel and/or the Site that is obtained by MRP Representatives
in connection with their due diligence investigation of the
Company Parcel to the extent not excluded hereafter
(collectively, "Confidential FRP Information"). Notwithstanding
the foregoing, (1) Confidential FRP Information shall not
include any documents or other information which is a matter
of public record, or which is otherwise already in the public
domain other than as a result of a breach of this covenant by
MRP or an MRP representative, and (2) MRP may disclose the
Confidential FRP Information (A)on a need-to-know basis
to its employees, agents, accountants, counsel, actual or
potential financial advisors, contractors, actual or potential
lenders, and actual or potential investors (it being
understood that MRP will inform such Persons of the
confidential nature of the Confidential FRP Information
and MRP shall be responsible for any disclosure of such
Confidential FRP Information by them in violation of this
Section 12.5.1), (B)subject to Section 12.5.2, to the extent
required to comply with applicable law or a court order,
(C) subject to Section 12.5.2, to the extent required to
comply with the rules of any applicable securities exchange,
(D) in connection with any legal action brought to enforce,
or resolve any dispute under, this Agreement, and (E) upon
approval by FRP (which approval shall not be unreasonably
withheld, conditioned or delayed) or as otherwise permitted
hereunder, as necessary for MRP to obtain Zoning Approval.
Unless otherwise agreed by FRP and MRP, upon termination
of this Agreement, MRP shall promptly deliver to FRP all
Confidential FRP Information, and, if requested by FRP, MRP
shall promptly destroy all memoranda, notes and other writings
prepared by MRP and containing any information described in
the Confidential FRP Information. The foregoing
notwithstanding, MRP and its legal counsel will have the right
to retain its self-generated notes, reports and summaries as
necessary for legal compliance or legal record retention
purposes, all which shall continue to be held subject to the
terms of this Section 12.5.1.
12.5.2 If MRP is requested or required by subpoena,
deposition, interrogatory, civil investigation, demand, request
for information or documents under any applicable law, rule or
regulation or other similar judicial, regulatory or administrative
process to disclose any of the Confidential FRP Information,
or if MRP is required under the rules of any applicable securities
exchange to disclose any of the Confidential FRP Information,
MRP shall give FRP prompt notice of such request so that
FRP may seek an appropriate protective order at FRP's sole
risk, cost and expense. If, in the absence of a protective
order, MRP is compelled or required to disclose any of the
Confidential FRP Information, it may disclose the Confidential
FRP Information it is compelled or required to disclose without
liability hereunder; provided, however, that MRP shall give FRP
written
notice of the Confidential FRP Information to be disclosed as
far in advance of the required disclosure as is practicable and,
upon FRP's request and at FRP's sole cost and expense, MRP
shall use its reasonable efforts to obtain assurances that
confidential treatment will be accorded to the Confidential
FRP Information that is disclosed.
12.5.3 MRP may from time to time provide FRP with
information regarding MRP or the MRP Affiliates specifically
identified as confidential ("Confidential MRP Information").
FRP acknowledges and agrees (1) that the terms of this
Agreement shall constitute Confidential MRP Information, and
(2) that the Confidential MRP Information has been and will be
so furnished on the condition that FRP maintain the confidentiality
thereof. Accordingly, but subject to the further terms and
limitation of this Section 12.5.3, FRP (i) shall hold, and shall
cause its representatives and agents to hold, in strict confidence,
and FRP shall not disseminate or disclose, and shall prohibit
the other FRP Representatives from disseminating and/or
disclosing, the Confidential MRP Information to any other
Person without the prior written consent of MRP, and (ii) shall
not disseminate or disclose the Confidential MRP Information
to any other Person without the prior written consent of MRP.
Notwithstanding the foregoing, FRP may disclose the
Confidential MRP Information (w)on a need-to-know basis
to its employees, agents, trustees, accountants, counsel, actual or
potential financial advisors, contractors and actual or potential
lenders (it being understood that FRP will inform such Persons
of the confidential nature of the Confidential MRP Information
and FRP shall be responsible for any disclosure of such
Confidential FRP Information in violation of this Section 12.5.3),
(x)subject to Section 12.5.4, to the extent required to comply
with applicable law or a court order, (y)subject to Section
12.5.4, to the extent required to comply with the rules of any
applicable securities exchange, and (z)to the extent that such
information is a matter of public record. Unless otherwise
agreed by FRP and MRP, upon termination of this Agreement,
FRP shall promptly deliver to MRP all Confidential MRP
Information, and, if requested by MRP, FRP shall promptly
destroy all memoranda, notes and other writings prepared by
FRP and containing any information described in the Confidential
MRP Information.
12.5.4 If FRP is requested or required by subpoena,
deposition, interrogatory, civil investigation, demand, request for
information or documents under any applicable law, rule or
regulation or other similar judicial, regulatory or administrative
process to disclose any of the Confidential MRP Information,
or if FRP is required under the rules of any applicable securities
exchange to disclose any of the Confidential MRP Information,
FRP shall give MRP prompt notice of such request so that MRP
may seek an appropriate protective order at MRP's sole risk,
cost and expense. If, in the absence of a protective order,
FRP is compelled or required to disclose any of the
Confidential MRP Information, it may disclose the Confidential
MRP Information it is compelled or required to disclose without
liability hereunder; provided, however, that FRP shall give MRP
written notice of the Confidential MRP Information to be
disclosed as far in advance of the required disclosure as is
practicable and, upon MRP's request and at MRP's expense,
FRP shall use its reasonable efforts to obtain assurances that
confidential treatment will be accorded to the Confidential MRP
Information that are disclosed.
12.5.5 Notwithstanding Section 12.5.1 and Section
12.5.3 to the contrary,
MRP and FRP, following prior notice to and consultation with
the other, may disclose the transaction contemplated by this
Agreement to the extent necessary to obtain consents or
approvals contemplated by this Agreement.
12.5.6 The provisions of this Section 12.5 shall survive
any termination of this Agreement.
12.6 Public Announcements. Any announcement, press
release or other public disclosure of the transaction contemplated
by this Agreement and/or the development of the Company
Parcel as contemplated in this Agreement shall be subject to the
mutual approval of FRP and MRP. Notwithstanding the
foregoing and Section 12.5, each party may make such public
disclosure as it determines is required by applicable Legal
Requirements, the rules of any securities exchange on which its
stock (or the stock of any of its affiliates) is listed or traded,
subject to the other party's reasonable approval over any
non-compulsory portion of such disclosure (i.e., any portion
of such disclosure that is not compelled or required by the rules
of such securities exchange). The provisions of this Section
12.6 shall survive any termination of this Agreement.
12.7 Time of Essence. Time is of the essence with respect
to all obligations of FRP and MRP under this Agreement.
12.8 Soil Disclosure. The characteristics of soil on the
Company Parcel as described by the Soil Conservation Service
of the United States Department of Agriculture in the Soil Survey
of the District of Columbia and as shown on the Soil Maps of the
District of Columbia is Urban Land. For further information,
MRP may contact a soil testing laboratory, the District of Columbia
Department of Environmental Services or the Soil Conservation
Service of the Department of Agriculture.
12.9 UST Disclosure. Concurrently with its execution of
this Agreement, FRP has executed and delivered to MRP,
pursuant to the Underground Storage Tank Management Act
of 1990, an Underground Storage Tank Real Estate Transfer
Disclosure Form in the form attached to this Agreement as
Exhibit G.
[signatures on following page]
IN WITNESS WHEREOF, FRP and MRP have caused
this Agreement to be executed as of the Contract Date:
FRP:
FLORIDA ROCK PROPERTIES, INC.
By:
Name:
Its:
[signatures continue on the next page]
MRP:
MRP SE WATERFRONT RESIDENTIAL LLC,
a District of Columbia limited liability company
By: MIDATLANTIC REALTY PARTNERS, LLC,
its Managing Member
By:
Name:
Its:
[end of signatures]
SCHEDULES AND EXHIBITS
Schedules
-----------
1.1.42 FRP's Knowledge
1.1.63 MRP's Knowledge
1.1.69 Certain Permitted Exceptions
3.1.3 Zoning Approval Schedule
5.10 Environmental Reports
6.7 MRP Organizational Chart
Exhibits
--------
A Description of Company Parcel
B Description of Site
C Form of Company Agreement
D Form of Deed
E Form of Bill of Sale
F Form of General Assignment
G Form of Underground Storage Tank Real Estate
Transfer Disclosure Form
H Form of Collateral Assignment of Development
Work Product
Schedule 1.1.42
-----------------
FRP's Knowledge
David H. deVilliers, Jr.,
Schedule 1.1.63
-----------------
MRP's Knowledge
Robert J. Murphy
Frederick W. Rothmeijer
Schedule 1.1.69
------------------
Certain Permitted Exceptions
None.
Schedule 3.1.3
---------------
Zoning Approval Schedule
(see attached)
Schedule 5.10
---------------
Environmental Reports
1. Comprehensive Site Assessment by ENSAT Corporation
dated December 26, 1995.
2. Phase I Environmental Site Assessment by Engineering
Consulting Services, Ltd. dated October 29, 1999.
3. Limited Phase II Environmental Site Assessment and
Geophysical Survey by Engineering Consulting Services,
Ltd. dated February 8, 2000.
4. Environmental Testing Report, Bulkhead Area by Schnabel
dated January 9, 2002.
5. Removal of Contaminated Soil Report by Schnabel Engineering
Associates, P.C. dated April 10, 2002.
6. Monitoring Well and Testing Report by Schnabel Engineering
North, LLC dated October 21, 2003.
7. LUST Case 95078, Current Status Report and Case Closure
Request by Schnabel Engineering North, LLC dated November
17, 2006.
8. Directive Letter from the Government of the District of
Columbia Department of the Environment Underground
Storage Tank Division dated December 18, 2006.
9. UST Leak Test Result by DC Materials dated July 10, 2009.
10. Voluntary Remediation Action Program Agreement with DDOE
approved August 16, 2010.
11. Well Installation and Sampling Report by Schnabel Engineering
Consultants, Inc. dated January 11, 2011.
12. Closure of One (1) 12,000 Gallon Diesel Underground Storage
Tank Report by ENSAT dated November 10, 2011.
13. LUST Case 95078, UST Removal and Case Closure
Request by Schnabel Engineering Consultants, Inc. dated
December 16, 2011.
14. Letter of Permanent Tank Closure (Registered Underground
Storage Tank System) from the Government of the District of
Columbia District Department of the Environment dated
December 20, 2011.
Schedule 6.7
-------------
MRP's Organizational Chart
(see attached)
Exhibit A
---------
Description of Company Parcel
(see attached)
Exhibit B
---------
Description of Site
All that certain lot or parcel of land together with all
improvements thereon located and being in the City of
Washington in the District of Columbia and being more
particularly described as follows:
Lot numbered Fourteen (14) in Square numbered Seven
Hundred Eight (708) in the subdivision made by Florida
Rock Properties, Inc., as per plat recorded in the Office
of the Surveyor for the District of Columbia in Liber 203
at folio 152.
NOTE: At the date hereof the described property is
designated on the Records of the Assessor for the District
of Columbia for assessment and taxation purposes as Lots
numbered Eight Hundred Ten (810), Eight Hundred Eleven
(811) and Eight Hundred Twelve (812) in Square numbered
Seven Hundred Eight (708) as shown on A&T Drawing
filed as No. 3842-X.
Exhibit C
---------
Form of Company Agreement
(see attached)
Exhibit D
---------
Form of Deed
(see attached)
Exhibit E
----------
Form of Bill of Sale
(see attached)
Exhibit F
---------
Form of General Assignment
(see attached)
Exhibit G
---------
Form of UST Disclosure
(see attached)
Exhibit H
----------
Form of Collateral Assignment of Development
Work Product
(see attached)
EX-10
3
llcagreement.txt
MRP LIMITED LIABILITY AGREEMENT
Exhibit 10.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
RIVERFRONT INVESTMENT PARTNERS I LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT ("Agreement") is made
as of __________ __, 201__ ("Effective Date"), between (i) FRP
Riverfront I LLC, a Delaware limited liability company ("Investor"), and
(ii)MRP SE Waterfront Residential, LLC, a District of Columbia limited
liability company ("MRP", and, together with Investor, the "Members").
R E C I T A L S :
A. Pursuant to a Certificate of Formation filed on __________, 201_ with
the Secretary of State of the State of Delaware ("Certificate"), Riverfront
Investment Partners I LLC was formed as a Delaware limited liability company
under the Delaware Limited Liability Company Act ("Act").
B. Investor and MRP, being the sole Members of the Company
(as defined below), desire to set out their agreement as to the conduct of
the business and the affairs of the Company. This Agreement shall
constitute the limited liability company agreement of the Company under
the Act. "Certificate" has the meaning set forth in the recitals to this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties do hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms
have the meanings set forth below:
"Act" has the meaning set forth in the recitals to this Agreement.
"Additional Capital Contribution" has the meaning set forth in
Section7.2.
"Adjusted Capital Account Deficit" means, with respect to any Member, the
deficit balance, if any, in such Member's Capital Account as of the end of the
relevant Fiscal Year, after giving effect to the following adjustments:
(i) Credit to such Capital Account any amounts such Member
is obligated to restore or is deemed to be obligated to restore pursuant
to the penultimate sentences of Treasury Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) Debit to such Capital Account the items described in Treasury
Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Treasury Regulations Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
"Administrative Member" means MRP, and any replacement
Administrative Member pursuant to this Agreement.
"Affiliate" means with respect to any Person (i) any other Person that
directly or indirectly through one or more intermediaries Controls or is
Controlled by or is under common Control with such Person, (ii) any other
Person owning or Controlling ten percent (10%) or more of the outstanding
equity securities of, or other ownership interests in, such Person, and (iii)
any officer, director, member, manager or partner of such Person or of any
Person that Controls or owns ten percent (10%) or more of the
outstanding equity securities of such Person. For purposes of this definition,
"control," when used with respect to any Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "controlled" have meanings correlative to
the foregoing.
"Affiliate Contract" means any agreement between the Company (or a
Subsidiary) and a Member (or Member Affiliate), including the Development
Agreement.
"Agreement" has the meaning set forth in the preamble.
"AP Firm" has the meaning set forth in Section13.18(a).
"Applicable Rate" has the meaning set forth in Section7.3(a).
"Approval Request" has the meaning set forth in Section4.2(b).
"Approval Response" has the meaning set forth in Section4.2(b).
"Approved Contract" means any contract or agreement entered into by
the Company or in its name by the Administrative Member, with all Member
approvals, if any, required by this Agreement having been obtained.
"Approved PUD" means __________.1
"Architect" means SK&I, or a replacement architect selected by MRP
subject to Investor's approval (which will not be unreasonable withheld,
conditioned or delayed).
"Assignment Agreement" means the [Assignment Agreement] dated
as of the Effective Date between MRP and Development Manager, as
Assignors, and the Company, as Assignee, whereby MRP and Development
Manager each assigned to the Company all of its right, title and
interest in and to the Pre-Development Work Product.
"Ballpark District" means the area bounded by the Anacostia River
to the South, the Southwest Freeway to the North, South Capitol Street to
the West and 8th Street SE to the East.
"Bankruptcy" means, with respect to the affected party, (i) the entry
of an order for relief under the Bankruptcy Code, (ii) the admission by such
party of its inability to pay its debts as they mature, (iii) the making
by it of an assignment for the benefit of creditors, (iv) the filing by it
of a petition in bankruptcy or a petition for relief under the Bankruptcy
Code or any other applicable federal or state bankruptcy or insolvency
statute or any similar law, (v) the expiration of sixty (60) days after the
filing of an involuntary petition against or involving such party under the
Bankruptcy Code, provided that the same shall not have been dismissed,
vacated, set aside or stayed within such sixty day (60 day) period; (vi) an
application by such party for the appointment of a receiver for the assets
of such party, (vii) the expiration of sixty (60) days after the filing of an
involuntary petition seeking liquidation, reorganization, arrangement or
readjustment of its debts under any other federal or state insolvency law,
provided that the same shall not have been vacated, set aside or stayed
within such sixty day (60) period or (viii) the imposition of a judicial
or statutory lien on all or a substantial part of its assets unless such lien
is discharged or vacated or the enforcement thereof stayed within sixty
(60) days after its effective date.
"Bankruptcy Code" means Title 11 of the United States Code, as
amended, or any corresponding provision(s) of succeeding law.
"Book Value" with respect to any Company Asset, means its adjusted
basis for federal income tax purposes, except that the initial Book Value
of any asset contributed by a Member to the Company shall be an
amount equal to the agreed gross fair market value of such asset, as
determined by the Members, and such Book Value shall thereafter
be adjusted in a manner consistent with Treasury Regulations Section
1.7041(b)(2)(iv)(g) for revaluations and for the Depreciation taken
into account with respect to such asset.
"Budget" means the Preliminary Development Budget, the Final
Development Budget the Operating Budget, and/or the Capital Budget,
as applicable, in each case as may be modified or updated from time to
time in accordance with this Agreement.
"Business Day" means any Monday through Friday on which
commercial banks are authorized to do business and are not required
by law or executive order to close in the District of Columbia.
"Call" has the meaning set forth in Section4.12.
"Capital Account" when used in respect of any Member means
the Capital Account maintained for such Member in accordance with
Section8.1, as said Capital Account may be increased or decreased
from time to time pursuant to the terms hereof (including Section8.1).
"Capital Budget" has the meaning set forth in Section6.4(e).
"Capital Call" has the meaning set forth in Section7.2.
"Capital Contribution" when used with respect to any Member means
the aggregate amount of capital contributed or deemed contributed to the
Company by such Member in accordance with Article 7.
"Certificate" has the meaning set forth in the recitals to this
Agreement.
"Civil Engineer" means Wiles Mensch, or a replacement civil engineer
selected by MRP subject to Investor's approval (which will not be
unreasonable withheld, conditioned or delayed).
"Closing" has the meaning set forth in Section10.2(a).
"Code" means the Internal Revenue Code of 1986, as amended, or
any corresponding provision(s) of succeeding law.
"Company" means Riverfront Investment Partners I LLC, a Delaware
limited liability company.
"Company Assets" means all right, title and interest in and to all or
any portion of the assets of the Company (including the Company's
ownership interest in any Subsidiary, but not including assets held directly
by a Subsidiary) and any property (real, personal, tangible or intangible)
or estate acquired in exchange therefor or in connection therewith.
"Company Financing" means the Construction Financing, and any
additional debt financing, extension, replacement or refinancing thereof,
from time to time, that is obtained by the Company and/or a Subsidiary,
as applicable, including any Construction Financing.
"Confidential Information" has the meaning set forth in Section13.14(a).
"Construction Compliance Requirements" has the meaning set forth in
Section4.13.
"Construction Contract" has the meaning set forth in Section4.5(a).
"Construction Financing" has the meaning set forth in Section4.4(a).
"Construction Lender" means the lender of any Construction Financing.
"Contributed Land" has the meaning set forth in Section7.1(a).
"Contribution Agreement" means the Contribution Agreement dated
February __, 2012, between Florida Rock Properties, Inc. and MRP with
respect to the formation of the Company and certain other transactions
described therein.
"Conversion" has the meaning set forth in Section10.8(c).
"Conversion Election Notice" has the meaning set forth in Section
10.8(c).
"Conversion Notice" has the meaning set forth in Section10.8(c).
"Cost Overrun" means, as the case may be, the amount, if any, by which
(i) the amount of Total Project Costs actually expended for any line item
in the Final Development Budget exceeds the budgeted amount of such
line item in the Final Development Budget, or (ii) the actual aggregate
amount of Total Project Costs actually expended exceeds the budgeted
amount of Total Project Costs as set forth in the Final Development
Budget, all as determined in accordance with the principles stated in
Section5.8.
"D.C." or "District" means the District of Columbia.
"Defaulting Member" has the meaning set forth in Section7.1(e).
"Depreciation" means, for each Fiscal Year or other period, an
amount equal to the depreciation, amortization or other cost recovery
deduction allowable with respect to an asset for such year or other period
for federal income tax purposes, except that if the Book Value of an asset
differs from its adjusted basis for federal income tax purposes at the
beginning of such year or other period, Depreciation shall be an amount
which bears the same ratio to such beginning Book Value as the
federal income tax depreciation, amortization or other cost recovery
deduction for such year or other period bears to such beginning
adjusted tax basis; provided however, that if the federal income tax
depreciation, amortization or other cost recovery deduction for such year
is zero, Depreciation shall be determined with reference to such beginning
Book Value using any reasonable method selected by the Administrative
Member. With respect to any asset of the Company for which
depreciation is calculated in accordance with Treasury Regulations
Section1.704-3(d), Depreciation shall be calculated in the same manner.
"Design Documents" has the meaning set forth in Section4.2(a).
"Design Professionals" mean the Civil Engineer, Architect, Landscape
Architect, and any structural engineers or mechanical engineers retained by
the Company, or its other design professionals, to perform design related
services in connection with the preparation of the Design Documents,
Development Approval submissions, building permit submissions or any
other applicable design documents required in connection with the Project,
as designated by MRP subject to Investor's approval (which shall
not be unreasonable withheld, conditioned or delayed).
"Development Agreement" means the Development Management
Agreement dated as of the Effective Date between the Company, as owner,
and Development Manager, as development manager.
"Development Approvals" means final, non-appealable approval of
each of the following: (i) sheeting, shoring and excavation permit; (ii) open
space permit; (iii) any other approval required of any Governmental Authority
prior to the issuance of building permits, and including reaching final
agreement on the form and amount of all bonds, letter of credit to
secure performance, development agreement, public works agreement and
the like, between the Company and applicable Governmental Authorities.
"Development Costs" means all third party costs and expenses
associated with the Company's activities in preparation for development of
the Project including, but not limited to, in connection with the entitlement,
design, development, Vertical Construction and completion of the Project,
whether expended prior to Effective Date or anticipated to be expended
after the Effective Date. Notwithstanding the foregoing, Development
Costs shall specifically exclude all costs excluded from "Pre-Closing
Development Costs" under the Contribution Agreement.
"Development Fee" has the meaning set forth in Section5.3(b).
"Development Manager" means MidAtlantic Realty Partners, LLC, a
Virginia limited liability company, which is an Affiliate of MRP.
"Development Period" means the period beginning on the Effective
Date and terminating on the earlier of (i) the date of commencement of
Vertical Construction, and (ii) the date of termination of this Agreement.
"Distributable Cash" for any Fiscal Year, quarter or other period
means the excess, if any, of (a) the sum of (i) the amount of all cash
receipts of the Company during such period and (ii) any working capital
of the Company existing at the start of such period less (b) the sum of
(i) all cash amounts payable (or accrued for future payments) in such
period on account of operating expenses and capital expenditures
incurred in connection with the Company's business (including, without
limitation, general operating expenses, taxes, amortization or interest on
debt, and expenses incurred in connection with the satisfaction of any
mortgage financing upon a Sale or refinancing of the Property, and other
Company expenses), and (ii) appropriate Reserves for working capital,
capital expenditures and other future needs of the Company (A) as
reasonably determined by the Administrative Member from time to time
(and approved by the Non Administrative Member pursuant to
Section3.2), or (B) as provided for in any Budget.
"Effective Date" has the meaning set forth in the preamble to this
Agreement.
"Environmental Consultant" means ECS, Schnabel, or another
reputable firm that performs environmental assessments and remediation
related services designated by MRP subject to Investor's reasonable
approval.
"Executive Negotiation Period" means a period of ten (10) calendar
days (or three (3) calendar days in the case of a Major Decision
Dispute Notice involving an Expedited Major Decision) following the
delivery of a Major Decision Dispute Notice during which one or both
of the Representatives of MRP and the Representative of Investor shall
negotiate in good faith to resolve the dispute with respect to the Major
Decision at issue.
"Expedited Major Decision" means a Major Decision identified as
such pursuant to Section3.3(a).
"Extraordinary Decision" means any Major Decision with respect
to the matters in Section3.2(a), (b), (c), (d), (e), (g), (h), (i), (n), (p),
(t), (u), (w) (to the extent any such guaranty, indemnity bond or surety
bond by the Company is given other than in connection with the
Constructing Financing, or for the benefit of a Member or its Affiliate,
or other third party, or for non-Company purposes), (jj), (kk) and (ll).
"Failed Funding" has the meaning set forth in Section7.3(a).
"Final Development Budget" has the meaning set forth in Section4.6(b).
"Final Development Schedule" has the meaning set forth in Section
4.7(b).
"Financing Decision" means any Major Decision with respect to the
matters in Section3.2(q) or (r).
"Fiscal Year" means the fiscal year of the Company, which shall be the
calendar year; provided that upon termination of the Company "Fiscal Year"
will mean the period from the end of the last preceding Fiscal Year to the
date of such termination.
"Florida Rock" means Florida Rock Properties, Inc., FRP
Development Corp., Patriot Transportation Holding, Inc. and/or the public
shareholders of Patriot Transportation Holding, Inc.
"Funding Member" has the meaning set forth in Section7.3(a).
"Funding Investor" has the meaning set forth in Section4.8(d).
"Governmental Authority" means any federal, state, District of
Columbia, county or municipal authority, agency, department, board,
official or officer having jurisdiction over the Property, the proposed
development thereof or the construction of Off-Site Improvements
(if any) required in connection with Vertical Construction.
"Guaranty" or "Guaranties" means any completion guaranty,
guaranty of non-recourse carve outs and/or an environmental guaranty
or indemnity.
"Guaranty Cost Sharing Agreement" has the meaning set forth in
Section5.4(c).
"Hypothetical Liquidation" means a hypothetical series of
transactions occurring on a given date, in which the Company is
liquidated and all Company Assets, including cash, are sold
for cash equal to their Book Value, taking into account any
adjustments thereto for such period, all liabilities of the Company are
satisfied in full in cash according to their terms (limited with respect to
each nonrecourse liability to the Book Value of the assets securing such
liability) and all Distributable Cash (after satisfaction of such liabilities)
is distributed in full pursuant to Section9.1(a).
"Improvements" means any and all improvements (above or below
grade) to be constructed on the Land (or, if applicable, on the balance
of the Site or completely off-site to the Land and Site), pursuant to the
Approved PUD and/or other Development Approvals for the Project,
including Shared Improvements, which the Company anticipates being
required to perform under the Development Approvals for the Project
as part of the first development phase under the Approved PUD.
"Initial Capital Contribution" has the meaning set forth in Section7.1.
"Initiating Member" has the meaning set forth in Section4.12(a).
"Interest" means the entire limited liability company interest of a
Member in the Company at any particular time, including the right of
such Member to any and all benefits to which a Member may be entitled
as provided in this Agreement, together with the obligations of such
Member to comply with all the terms and provisions of this Agreement.
"Investor" has the meaning set forth in the preamble to this Agreement.
"Investor Property" means the real property consisting of 5.82 acres
of land, more or less, located at 25 Potomac Avenue, SE, Washington D.C.
as more particularly described in Schedule 1.1-A attached hereto, less and
except the Land.
"IRR" means, as of any date and with respect to any Member, the
annual percentage rate that, when utilized to calculate the present value of
all distributions to such Member causes such present value of distributions
to equal the present value the Capital Contributions made by such Member.
The present value of a Member's Capital Contributions on the Effective
Date is the nominal amount of such Member's Initial Capital Contributions
and the present value of any Capital Contribution or distribution after the
Effective Date is the nominal amount of such Capital Contribution or
distribution discounted back from the date of such Capital Contribution to
the date made, utilizing said annual percentage rate. IRR shall be calculated
using the XIRR function in Microsoft Excel 2010.
"IRS" means the Internal Revenue Service and any successor agency
or entity thereto.
"Land" means the real property described on Schedule 1.1-B.
"Landscape Architect" means Oculus, or a replacement landscape
architect selected by MRP subject to Investor's approval (which will
not be unreasonable withheld, conditioned
or delayed).
"Legal Requirements" means all present and future federal, state
and/or local/municipal laws, statutes, codes, regulations, ordinances,
administrative or judicial orders, rules, administrative guidelines,
requirements, directives and actions of any Governmental Authority or
quasi-Governmental Authority, and other legal requirements of whatever
kind or nature that are applicable to the Company, the ownership,
development, servicing, use, operation or marketing of the Property,
and/or the Members and their Affiliates, and any amendments,
modifications or changes to any of the foregoing.
"Loan Documents" means the documents evidencing or securing
any Company Financing.
"Loss" has the meaning set forth in Section8.2(a).
"Major Decision" has the meaning set forth in Section3.2.
"Major Decision Dispute Notice" has the meaning set forth in
Section3.3(a).
"Manager Removal Event" has the meaning set forth in Section
3.6(a).
"Mandatory Capital Contribution" has the meaning set forth in
Section7.1(e).
"Member" has the meaning set forth in the preamble to this
Agreement.
"Member Affiliate" means any Affiliate of a Member.
"MRP" has the meaning set forth in the preamble to this
Agreement.
"MRP Affiliate" means MRP and any Member Affiliate of MRP.
"MRP Guarantors" means and refer to one or more MRP
Affiliates and/or MRP Principals that provide the loan guaranties
required under the Company Financing in accordance herewith.
"MRP Principals" means Robert Murphy, Frederick Rothmeijer,
Ryan Wade and J. Richard Saas.
"Non Admininstrative Member" means Investor, whenever MRP
is Administrative Member, or MRP, whenever Investor is Administrative
Member.
"Non Funding Member" has the meaning set forth in Section
7.3(a).
"NonInitiating Member" has the meaning set forth in Section
4.12(a).
"Non Selling Member" has the meaning set forth in Section
10.2(a).
"Notice to Proceed" has the meaning set forth in Section4.11.
"Off Site Improvements" means any and all off-site improvements
required in connection with obtaining, or as a condition to the issuance
of, all required Development Approvals for the Project, or otherwise
required or agreed to (and approved by MRP and Investor) in
connection with the Vertical Construction.
"Operating Budget" has the meaning set forth in Section6.4(b).
"Organizational Document" means with respect to any Person (i)
in the case of a corporation, such Person's certificate of incorporation
and bylaws and any shareholder agreement, voting trust or similar
arrangement applicable to any of such Person's authorized shares of
capital stock, (ii)in the case of a limited partnership, such Person's
certificate of limited partnership and limited partnership agreement,
and any voting trusts or other instruments or agreements affecting the
rights applicable to any of its partners, (iii)in the case of a limited
liability company, such Person's certificate of formation or articles
of organization or similar document, operating agreement and any
voting trusts or other instruments or agreements affecting the rights of
holders of limited liability company interests or (iv)in the case of any
other legal entity, such Person's organizational documents and any
voting trusts and other instruments or agreements affecting the rights
of holders of equity interests in such Person.
"Partner Nonrecourse Debt Minimum Gain" has the meaning set
forth in Treasury Regulations Section1.704-2(i). A Member's share of
Partner Nonrecourse Debt Minimum Gain shall be determined in
accordance with Treasury Regulations Section1.704-2(i)(5).
"Partnership Minimum Gain" has the meaning set forth in Treasury
Regulations Section1.704-2(d). In accordance with Regulations
Section1.704-2(d), the amount of Partnership Minimum Gain is
determined by first computing, for each Company nonrecourse liability,
any gain the Company would realize if it disposed of the property
subject to that liability for no consideration other than full satisfaction
of the liability, and then aggregating the separately computed gains.
A Member's share of Partnership Minimum Gain shall be determined
in accordance with Tresaury Regulations Section1.704 2(g)(1).
"Percentage Interest" means, with respect to any Member as of
any date, the ratio that (i) the sum of the Initial Capital Contributions,
Mandatory Capital Contributions and Projected Additional Capital
Contributions actually made by such Member on or before such date,
calculated without duplication, bears to (ii) the sum of the total Initial
Capital Contributions, Mandatory Capital Contributions and Projected
Additional Capital Contributions actually made by all Members on or
before such date, as the same may be adjusted from time to time
pursuant to this Agreement, calculated without duplication.
"Permitted Court" has the meaning set forth in Section13.7.
"Person" means any individual, partnership, corporation, limited
liability company, trust or other legal entity.
"Post-Withdrawal Interest" refers to the membership interest of
MRP after a Withdrawal Event, which shall be substantially identical
to the Interest of an assignee of the Interest of a Member of the
Company who or which has not been approved or admitted as a
substitute Member of the Company, as more fully described in Section
3.8.
"Pre-Development Work Product" has the meaning set forth in
the Assignment Agreement.
"Preferred Return" means an amount calculated like interest
equal to thirteen percent (13%) per annum, compounded monthly,
calculated in the same manner as the calculation of the return in the
XIRR function in Microsoft Excel 2010, on a Member's Unrecovered
Capital Contribution, until such Unrecovered Capital Contribution has
been reduced to zero.
"Preliminary Development Budget" has the meaning set forth in
Section4.6(a).
"Preliminary Development Schedule" has the meaning set forth in
Section4.7(a).
"Priority Loan" has the meaning set forth in Section7.3(b).
"Profit" has the meaning set forth in Section8.2(a).
"Project" means the development, construction, ownership,
management, control, leasing, operation, financing, refinancing, mortgaging,
maintenance, and Sale or other disposition of the Property by the Company
or a Subsidiary.
"Projected Additional Capital Contributions" has the meaning set forth
in Section4.8(a).
"Projected Capital Funding Notice" has the meaning set forth in
Section4.8(b).
"Project Value" has the meaning set forth in Section10.8(c).
"Promote Distributions" means collectively, all distributions made or
to be made to MRP pursuant to clause (B) of Section9.1(a)(iii), clause
(B) of Section9.1(a)(iv) and clause (B) of Section9.1(a)(v).
"Property" means the Land and the Improvements.
"Proposing Member" has the meaning set forth in Section3.3(a).
"Purchasing Member" has the meaning set forth in Section10.2(a).
"Put" has the meaning set forth in Section4.12.
"Put/Call Closing" has the meaning set forth in Section4.12(b).
"Put/Call Notice" has the meaning set forth in Section4.12(a).
"Put/Call Price" has the meaning set forth in Section4.12(a).
"REA" means that certain __________________________2.
"Receiving Member" has the meaning set forth in Section3.3(a).
"Reserves" means, with respect to any fiscal period, funds set
aside in the Budget, or amounts allocated in the Budget during such
period for normal and customary reserves for working capital and to
pay taxes, insurance, debt service or other costs or expenses incident
to the ownership or operation of the Company's business (and
including any reserves required by the lender under any Company
Financing).
"Sale" means any transaction or series of transactions whereby
(a)the Company directly or indirectly (except as described in
other subsections of this definition) sells, grants, Transfers, conveys,
or relinquishes its ownership of the Property or portion thereof, and
including any event with respect to the Property which gives rise to a
significant amount of insurance proceeds or condemnation awards,
but excluding a lease of space located within the Property in the
ordinary course of business and/or the granting of any easement in
the normal course of development of the Property; (b)the
Company directly or indirectly (except as described in other
subsections of this definition) sells, grants, Transfers, conveys, or
relinquishes its ownership of all or any portion of the interest of the
Company in any Subsidiary; or (c)the Company directly or indirectly
(except as described in other subsections of this definition) sells,
grants, conveys or relinquishes its interest in any Company Assets or
portion thereof, or any other asset not previously described in this
definition, and any event which gives rise to a significant amount
of insurance proceeds or similar awards.
"Sale Decision" means any Major Decision with respect to a
proposed Sale.
"Selling Member" has the meaning set forth in Section
10.2(a).
"Shared Improvements" means all buildings, common areas,
and other improvements or areas located on the Investor Property
or the Property and which are intended for the benefit of the
Property and the Investor Property, collectively, and the owners,
tenants, occupants, invitees, licensees and business visitors thereof,
pursuant to the terms of a reciprocal easement agreement
encumbering the Investor Property and the Property.
"Special Capital Contribution" has the meaning set forth in
Section7.3(b).
"Stabilization" means the first date after the substantial
completion of all of the
Improvements, on which at least ninety percent (90%) of the
individual apartments in such Improvements have been leased
to, and are occupied by, third party tenants.
"Standard of Conduct" has the meaning set forth in Section
3.7.
"Subsidiary" has the meaning set forth in Section2.6(c).
"Substituted Member" means any Person admitted to the
Company as a Member pursuant to the provisions of Section10.5.
"T&S Firm" has the meaning set forth in Section13.18(b).
"Target Financing Amount" means the maximum amount of
non-recourse financing reasonably achievable by the Company
without payment guaranties for purposes of any Construction
Financing of the Project, not to exceed the amount of financing
that would result in the aggregate Initial Capital Contribution of
MRP being less than $4,000,000.
"Tax Matters Member" means Investor.
"Total Asset Value" has the meaning set forth in Section
4.12(a).
"Total Project Costs" means all costs of developing the Project,
including the Parcel Value, and all Development Costs, as provided
for in the then current Preliminary Development Budget or in the
Final Development Budget, as applicable.
"Traffic Consultant" means Gorove Slade, or another reputable
traffic consulting firm designated by MRP subject to Investor's
reasonable approval.
"Transfer" with respect to a Member, means any transfer,
sale, pledge, hypothecation, encumbrance, assignment or other
disposition, directly or indirectly, of any portion of the Interest
of such Member or the proceeds thereof (whether voluntarily,
involuntarily, by operation of law or otherwise).
"Treasury Regulations" means the regulations promulgated
under the Code, as such regulations are in effect on the date
hereof.
"Unpaid Preferred Return" means, with respect to any
Member, as of any date, the aggregate amount of Preferred
Return earned by such Member, less the amounts that have
been distributed to such Member pursuant to Section
9.1(a)(i) and less any reductions in such Member's Unpaid
Preferred Return pursuant to Section7.3(d).
"Unrecovered Capital Contribution" means, with respect
to any Member, as of any date, the aggregate amount of such
Member's Capital Contributions which have been made (or
deemed made) to the Company pursuant to Sections 7.1
or 7.2 from time to time, less the amounts that have been
distributed to such Member as a return of capital pursuant
to Section
7.1(a)(ii) and less any reductions in such Member's
Unrecovered Capital Contribution pursuant to Section7.3(d).
"Valuation Notice" has the meaning set forth in Section
4.12(a).
"Vertical Construction" means the construction of buildings,
surface parking facilities, subsurface or structured parking
facilities, and all related sitework, Shared Improvements and
off-site improvements contemplated under all final Development
Approvals, building permits and final approved plans and
specifications for the Project.
"Vertical Construction Contingencies" has the meaning set
forth in Section4.10(a).
"Vertical Contingencies Notice" has the meaning set forth
in Section4.10(b).
"Vertical Decision Period" has the meaning set forth in
Section4.11.
"Vertical Target Date" means the date that is twenty-seven
(27) months after the Effective Date, as the same may be
extended in accordance with the express provisions of this
Agreement, or by mutual written agreement of Investor and
MRP.
"Withdrawal Event" means such event as is expressly
provided for in this Agreement, which results in the consequent
conversion of MRP's Interest from that of Administrative
Member and Member of the Company to the holder of a
Post-Withdrawal Interest, as more fully provided for and
described in Section3.8.
1.2 Terms Generally. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context
otherwise requires:
(a) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision;
(b) the words "including" and "include" and other
words of similar import shall be deemed to be followed by the
phrase "without limitation"; and
(c) any reference herein to a "Schedule" is to one of the
Schedules attached to this Agreement and any reference to an
Article or a Section is to one of the Articles or Sections of this
Agreement. Each of the Recitals hereto, and each Schedule
attached hereto and referred to herein, is hereby incorporated
herein by reference.
ARTICLE 2
THE COMPANY AND ITS BUSINESS
2.1 Formation of the Company. The Company was formed
as described in the Recitals hereto. Upon the execution of this
Agreement by Investor and MRP, this Agreement
shall become the limited liability company agreement of the
Company.
2.2 Company Name. The business of the Company
shall be conducted under the name of "Riverfront I LLC" in the
State of Delaware under such name or such assumed names as
may be determined by the Administrative Member to be necessary
or appropriate to comply with the requirements of any other
jurisdiction in which the Company may be required to qualify.
2.3 Members.
(a) The Members of the Company shall be Investor and
MRP, and such additional Members as may hereafter be admitted
in accordance with the terms hereof.
(b) The limited liability company interests issued to the
Members pursuant to this Agreement have been duly authorized
and are validly issued limited liability company interests in the Company.
(c) Each Member confirms its understanding and agreement
that no Member shall have any fiduciary duty whatsoever to the
Company or any other Member (it being agreed among the Members
that no Member shall be construed as having any duty to the
Company or any other Member other than such obligations as are
provided in this Agreement and such other obligations, if any, as
are required by applicable law, after taking into account the effect
of this Section2.3(c)). This Section2.3(c) is subject to, and shall
not in any way reduce or otherwise limit the specific obligations of
any Member expressly provided in, the remaining provisions in this
Agreement or any other agreement entered into by the Company,
any Member or its Affiliate, including compliance by each Member
with the Standard of Conduct set forth in Section3.7.
2.4 Term. The term of the Company shall continue in perpetuity
unless the Company is earlier dissolved as hereinafter provided.
2.5 Filing of Certificate and Amendments. The Certificate was
filed with the Secretary of State of the State of Delaware on
__________, 201__. The Members hereby agree to execute and
file any amendments to the Certificate as and when required by
applicable law and to do all other acts requisite for the constitution
of the Company as a limited liability company pursuant to the laws
of the State of Delaware or any other applicable law.
2.6 Business; Scope of Members' Authority.
(a) The purpose of the Company, directly or through one or
more Subsidiaries, is to own, develop, entitle, construct, manage,
control, lease, operate, finance, refinance, mortgage, maintain, and
sell or otherwise dispose of the Property and/or interests in the
Subsidiary, to meet the Company's, and any Subsidiary's obligations,
and in all respects to act as owner of the Property upon and subject
to the terms and provisions of this Agreement. The Company shall
not engage in any other business without the prior written consent
of all of
the Members.
(b) Except as otherwise specifically provided in this
Agreement: (i) no Member other than the Administrative Member
shall have any authority to bind, to act for, to execute any document
or instrument on behalf of or to assume any obligation or
responsibility on behalf of, the Company; and (ii) to the fullest
extent permitted by law, no Member shall, by virtue of
executing this Agreement, be responsible or liable for any
indebtedness or obligation of the Company or any other
Member incurred or arising either before or after the Effective
Date.
(c) The Company may conduct any of its business
activities directly or through one or more wholly owned,
direct or indirect subsidiaries which shall be single purpose
entities (each, a "Subsidiary"). As of the Effective Date, the
Company has no Subsidiaries, but may create a Subsidiary
for purposes of acquiring title to the Property if approved as
a Major Decision. Except as expressly otherwise set forth
herein or as approved by all of the Members or as the context
otherwise requires, any reference in this Agreement to the
Company shall be deemed to include the Company and all
Subsidiaries. Notwithstanding anything to the contrary in (x)
this Agreement, (y)the Organizational Documents of any
Subsidiary or (z)any other contract or agreement entered into
by any Subsidiary:
(1) any decision or action that the Company is
authorized to make or take directly with respect to the
Company's assets, properties or activities may be taken by or
on behalf of a Subsidiary with, and only with, the same required
approval or authorization as is set forth in this Agreement with
respect to the Company; and
(2) in furtherance and not in limitation of the foregoing,
the Administrative Member may not cause any Subsidiary to
make a decision or take an action that would be a Major Decision
if the terms of this Agreement applied to such Subsidiary, mutatis
mutandis, without first obtaining the same approval of the Non-
Administrative Member that would required (if applicable) if the
Company was making the decision or taking the action directly.
2.7 Principal Office; Registered Agent. The principal office
of the Company shall be c/o __________. The Company may
change its place of business to such location or locations as may
at any time or from time to time be determined by the Administrative
Member and approved by the Non Administrative Member.
Except as otherwise determined by the Administrative Member, the
address of the registered office of the Company in the State of
Delaware is __________, and the registered agent of the Company
shall be __________.
2.8 Names and Addresses of the Members. The names and
addresses of the Members are as follows:
Investor:
Florida Rock Properties, Inc.
c/o FRP Development Corp.
34 Loveton Circle, Suite 100
Sparks, MD 21152
Attn: David H. deVilliers, Jr., President
Phone: 410/771-4100
Fax: 410/771-8150
with a copy to:
Arnold & Porter LLP
555 12th Street, N.W.
Washington, D.C. 20004
Attn: Michael D. Goodwin, Esquire
Phone: 202/942-5558
Fax: 202/942-5999
MRP:
c/o MidAtlantic Realty Partners, LLC
3050 K Street, N.W., Suite 125
Washington DC 20007
Attn: Robert J. Murphy
Phone: 202/719-9000
Fax: 202/719-9050
with a copy to:
Tenenbaum & Saas, P.C.
4504 Walsh Street, Suite 200
Chevy Chase, MD 20815
Attn: Mark S. Tenenbaum, Esquire
Phone: 301/961-4965
Fax: 301/961-5305
2.9 Authorized Persons. The Administrative Member may
authorize any Person to execute, deliver and file any other
certificates or documents (and any amendments and/or
restatements thereof) on behalf of the Company necessary
for the continuation of the Company's existence and good
standing in the State of Delaware and authorization to
transact business in the District of Columbia. Any actions
taken by any such authorized Persons in connection with
the execution, delivery or filing of the Certificate with the
Secretary of State of the State of Delaware or any other
action relating thereto is hereby ratified, confirmed and
approved by the Members as having been authorized by
the Company.
ARTICLE 3
MANAGEMENT OF COMPANY BUSINESS
3.1 Role of the Administrative Member.
(a) Subject to the limitations and restrictions set forth in
this Agreement (including, but not limited to Section3.2 and
Section3.8), the Administrative Member shall be a
"Manager" for purposes of the Act and shall have the right,
power and authority to manage the operations of the Company
(and any Subsidiary) and to implement each Budget in
accordance with the terms hereof and thereof and
applicable laws and regulations. The Administrative
Member shall devote such time to the Company and its
business as is necessary to conduct the operations of the
Company in an efficient manner and to carry out the
Administrative Member's responsibilities as set forth
herein. In furtherance of the foregoing, but subject to the
limitations set forth in this Agreement (including, without
limitation, in Section3.2), the Administrative Member shall
have the authority to cause the Company (for itself and on
behalf of any Subsidiary) to do all of the following (at the
Company's expense, unless otherwise provided for herein),
and shall use commercially reasonable and diligent efforts,
consistent with the Standard of Conduct, to do, accomplish
and complete for and on behalf of the Company (for itself
and on behalf of any Subsidiary), each of the following:
(1) coordinate, apply for, obtain, maintain and
renew any and all consents, approvals and permits required
for the development, construction, ownership, occupancy
and operation of the Property;
(2) cause to be paid all taxes, assessments and
other impositions applicable to the Property, and undertake
any action or proceeding seeking to reduce such taxes,
assessments or other impositions;
(3) verify that appropriate insurance is maintained
by each contractor performing work at the Property from
time to time;
(4) procure and arrange insurance for the
Company, any Subsidiary and the Property in accordance
with the insurance program included in the Budget or otherwise
approved by all of the Members;
(5) demand, receive, acknowledge and institute
legal action for recovery of any and all revenues, receipts
and considerations due and payable to the Company, in
accordance with prudent business practices;
(6) coordinate the marketing and leasing of the
Property;
(7) execute and deliver leases and other contracts
and/or instruments on the Company's or any Subsidiary's behalf
as necessary or desirable to carry out the business of the
Company and any Subsidiary;
(8) prepare Budgets or other budgets for the
Company and any Subsidiary, and keep and deliver all books
of account and other records of the Company and any
Subsidiary, in accordance with the requirements of this Agreement;
(9) maintain all funds of the Company in a Company
bank account in the manner provided in Article 6 below;
(10) take such actions as are necessary on behalf
of the Company to disburse the proceeds of any Capital
Contribution or other contribution or loan for the purposes for
which the funds were advanced;
(11) coordinate the defense of any claims, demands,
suits or legal proceedings made or instituted against the Company
or any Subsidiary by other parties, through legal counsel for the
Company or such Subsidiary;
(12) take such action as is necessary on behalf of the
Company and any Subsidiary to cause the Company or such
Subsidiary to comply with the terms and provisions of any and all
contracts and other agreements and instruments entered into by the
Company or such Subsidiary in accordance with the provisions
of this Agreement, including, without limitation, the terms and
provisions of any Loan Documents;
(13) subject to the other provisions of this Agreement,
direct the operations of the Company and/or any Subsidiary so that
they are constructing, developing, operating, maintaining and
otherwise managing the Property in an efficient manner in accordance
with any then-applicable Budget, and at all times maintain staffing and
an organization sufficient to enable it to carry out all of its duties,
obligations and functions as Administrative Member under this
Agreement;
(14) take such action on behalf of each of the
Company and any Subsidiary to cause it to be in compliance with all
laws, ordinances, orders, rules, regulations and requirements of all
federal, state and municipal governments, courts, departments,
commissions, boards and officers, the requirements of any insurance
policy (or any insurer thereunder) covering the Property, the
Company, or any Subsidiary, any national or local Board of Fire
Underwriters, or any other body exercising functions similar to those
of any of the foregoing, which may be applicable to any Property or
the operation and management thereof, and when contesting the
validity or application of any such law, ordinance, order, rule,
regulation or requirement;
(15) meet with the Non Administrative Member and or
its agents or designees monthly and at such other times as the
Non Administrative Member may reasonably request to discuss the
business and affairs of the Company. Unless otherwise requested by
either Member, meetings between the Administrative Member and
Non Administrative Member shall be by conference call.
Face-to-face meetings between the Administrative Member and
Non Administrative Member shall be held at a mutually agreeable
location in the Washington, D.C. area unless otherwise agreed by
the Members. The parties recognize that the Non Administrative
Member shall be actively involved in the development, construction,
operation, leasing and management of the Property. Accordingly,
to the extent reasonably practicable, the Non Administrative
Member shall have the right to attend all significant meetings
between the Administrative Member or its Affiliates, on the one
hand, and third parties (other than prospective or actual
residential tenants) on the other hand, relating to the development,
construction, leasing, financing, management and operation of the
Project, and the
Administrative Member shall use commercially reasonable
efforts to provide reasonable advance notice of such meetings
to the Non Administrative Member.
(b) The Administrative Member shall not be entitled to
any compensation from the Company (except as set forth in
Section5.3) for performance of its duties as Administrative Member.
(c) When required in connection with a final decision to
authorize the commencement of Vertical Construction pursuant
to Article 4 the Administrative Member shall execute, on behalf
of the Company, the Construction Contract and Loan Documents
in the forms approved by the Members. The Administrative
Member shall deliver a notice to proceed to the general contractor,
directing the general contractor to commence construction of the
Improvements pursuant to the Construction Contract when required
in accordance with the Members' authorization to commence
Vertical Construction.
(d) The Non Administrative Member may from time to
time propose to the Administrative Member that the Company
implement any action or decision (either directly or on behalf of a
Subsidiary) that is not inconsistent with the purposes and intent of
this Agreement, whereupon the Administrative Member shall
consider such proposal in good faith. If such action or decision
proposed by the Non-Administrative Member constitutes a Major
Decision, then the provisions of Section 3.2 shall apply.
3.2 Major Decisions. The Administrative Member shall not
take or cause or permit the Company to take any of the following
actions, or expend any amount of money, make any decision or
incur any obligation on behalf of the Company with respect to any
matter within the scope of any of the matters enumerated below
(such matters, together with any other matter in this Agreement
expressly requiring approval by all Members or by the
Non--Administrative Member, each a "Major Decision"),
unless the action, expenditure or other decision has been
approved in accordance with Section 3.3:
(a) any act by or on behalf of the Company or any
Subsidiary in contravention of this Agreement or which would
make it impossible to carry on the business of the Company or
any Subsidiary;
(b) possession of any Company or any Subsidiary
assets or assignment of the rights of the Company or any
Subsidiary in specific assets of the Company or any Subsidiary
for other than the purpose of the Company;
(c) except as otherwise expressly permitted in this
Agreement, admission of a Person as a member, manager,
partner, shareholder, director, legal or beneficial owner or
otherwise to the Company or any Subsidiary, or any public
or private offering for the sale of membership interests in or
other securities of the Company or any Subsidiary (or any
purchase, conversion or other similar option or other right
in respect of any such securities);
(d) the merger or consolidation of the Company or
any Subsidiary with any other Person;
(e) a loan by the Company or any Subsidiary to any
Member or any other Person;
(f) confession of any judgment on behalf of the
Company or any Subsidiary;
(g) the filing on behalf of the Company or any
Subsidiary (where the Company or the Subsidiary is the
debtor) of any petition, or consent to the appointment of a
trustee or receiver or any judgment or order, under state or
federal bankruptcy laws, or any assignment for the benefit
of creditors of the Company or any Subsidiary, or admission
in writing of the Company's or any Subsidiary's inability to pay
its debts generally as they become due;
(h) distribution of any property in kind;
(i) any action outside the purposes specified in
Section2.6;
(j) except as provided in, and subject to, Sections
6.4(c), 6.4(d) or 6.4(e), incur or pay or cause or permit to be
incurred or paid any capital, operating or other expenditure on
behalf of the Company or any Subsidiary; provided, however,
that the Administrative Member may incur or cause or permit to
be incurred by or on behalf of the Company or any Subsidiary
(i) such capital and/or operating expenses as are expressly
provided for in an approved Budget, (ii) such capital and/or
operating expenditures in case of an emergency, which the
Administrative Member reasonably determines in good faith
are necessary in order to avoid immediate harm to persons
at or loss to the Property, (iii) such capital and/or operating
expenses as may be expressly required to be paid pursuant
to any Approved Contract, (iv) such capital and/or operating
expenses as may expressly be required to be paid in order
to avoid a default under the terms of any Loan Documents
(including making all regularly scheduled debt service
payments), and (v) expenditures to pay for increases in real
estate taxes and assessments (whether due to changes in
tax rates, assessed valuations or otherwise), increases in
insurance premiums, increases in utility consumption charges
(whether based on increased utility rates or increased utility
consumption), and/or increased amounts required to be paid
under Legal Requirements, to the extent such increases
took effect after the applicable Budget was adopted;
(k) any agreement or option to sell, transfer, lease,
assign or otherwise dispose of all or any portion of the Property
or Company Assets (other than (i) as required pursuant to the
terms of any Approved Contract or Loan Document, (ii)
immaterial items of personal property sold in the ordinary
course of business, and (iii) individual leases of residential
units), or any material amendment, modification, supplement
or extension of any such agreement;
(l) the creation, determination, increase or reduction
of the amount of Reserves for operating or capital expenditures
of the Company or any Subsidiary other than in
accordance with Section 6.4;
(m) entering into, renewing, amending or otherwise
modifying any contract or agreement that obligates the Company
or any Subsidiary to make any single payment in excess of
Twenty-Five Thousand Dollars ($25,000), or aggregate payments
in excess of Fifty Thousand Dollars ($50,000), except the
foregoing shall not apply to the extent entering into, renewing,
amending or otherwise modifying such contract or agreement is
within the authority granted to the Administrative Member
pursuant to Sections 3.2(j) and Section 6.4(c), provided that in
all events, the form of any such contract or agreement and the
identity of the other party(ies) to such contract or agreement
shall be Major Decisions;
(n) any acquisition of any real property other than the
Property or any personal property, which personal property is
not incident to the Project;
(o) any material action in respect of the Property relating
to environmental matters other than to obtain environmental studies
and reports, conduct (or arrange for) evaluations and analyses
thereof and obtain appropriate permits required for compliance
with environmental laws;
(p) termination, dissolution or winding up of the
Company or any Subsidiary;
(q) incurrence, renewal, or refinancing of any indebtedness
or other financing of the Company or any Subsidiary (including any
Company Financing), other than ordinary trade debt;
(r) enter into material Loan Documents, or enter into any
material amendment, modification, supplement or extension of any
Loan Document with respect to any Company Financing;
(s) any design, construction or reconstruction of any
Improvements or otherwise within the Property (other than the
decision to proceed with Vertical Construction which is governed
by Article 4), including the establishment of and any material
amendment or supplement to the plans and specifications for such
construction work, the selection of an architect, general contractor,
construction manager, any agreement with any architect, general
contractor or construction manager, any material amendment,
modification, supplement or extension of any such agreement,
and the commencement of demolition, excavation, sheeting and
shoring and/or construction of such Improvements, provided that
the matters set forth on Schedule 3.2(s) are hereby approved
by all of the Members;
(t) any Affiliate Contract and/or the payment of any
compensation or reimbursement to, or other transaction with, any
Member or Affiliate of a Member (including the Administrative
Member) or any other Person with which a Member (including
the Administrative Member) or any of its Affiliates has a
significant business relationship; provided that the Development
Agreement is hereby approved by all of the Members;
(u) amending this Agreement or the Certificate;
(v) adopting and/or materially modifying or terminating
the insurance program for the Company, any Subsidiary or the
Property, including the selection or designation of insurers,
coverages and policy amounts;
(w) any guaranty, indemnity bond or surety bond by
the Company or any Subsidiary;
(x) settlement of any insurance claim or condemnation
action;
(y) any litigation, arbitration or settlement involving the
Company, a Subsidiary, or any of their respective assets;
provided that this subparagraph (y) shall not apply to any legal
action initiated to dispossess or otherwise enforce the obligations
of any tenant or occupant which is in default in its obligations to
the Company under any lease of a rental apartment or rental
space, or to enforce the terms of a service contract or construction
contract to which the Company is a party against a defaulting
contractor or service provider, where the amount in controversy
in any such action is less than $50,000;
(z) the determination (and any material modification or
termination) of any planned unit development, rezoning, variances,
map approvals, entitlements, permits or other governmental
approvals for the Property and any payments and obligations
(including concessions by, and restrictions on, the Company, a
Subsidiary or any of their respective assets or the Property) will
be incurred in connection therewith;
(aa) any naming or branding of the Project;
(bb) any press releases and/or marketing for the Property,
the Company or any Subsidiary;
(cc) all income tax elections, tax returns, tax audits,
settlement agreements with the Internal Revenue Service, or other
petitions or legal actions relating to taxes, and the determination or
allocation of Book Value for any specific asset or property
included in the Contributed Property or otherwise sold or
contributed to the Company from time to time;
(dd) the engagement of legal counsel, accountants,
consultants and/or other professional service providers;
(ee) the employment of employees of the Company or
a Subsidiary (it being understood and agreed that each of the
Development Manager, and, if necessary, the Administrative
Member will have its own employees);
(ff) creation or liquidation of any Subsidiary, approval,
amendment or modification of the Organizational Documents of
any Subsidiary, any contribution of property or
other payment to any Subsidiary, and any distribution by
any Subsidiary;
(gg) the determination of whether, and how, any
particular item or amount of revenue or expense, or any
increase or reduction in Reserves, shall be treated as
affecting the calculation of Distributable Cash;
(hh) the selection of a property manager and
leasing manager, and entering into, renewing, amending or
otherwise modifying any contract or agreement with the
property manager and/or leasing manager;
(ii) any transaction or matter that is not in the ordinary
course of the business of the Company or a Subsidiary;
(jj) taking any action, or knowingly failing to take any
action, which would trigger liability under any Guaranty or
otherwise give rise to personal liability on the part of any
Member or Member Affiliate (including the MRP
Guarantors and/or MRP Principals);
(kk) authorizing any action or making any decision
which is known to violate a Loan Document, lease or other
contractual obligation to which the Company or any Subsidiary
is bound in any material respect;
(ll) proceeding with Vertical Construction other than as
required pursuant to Article 4; and
(mm) any other decision or action which materially affects
the Company, a Subsidiary, or any of their respective assets or
operations, unless such decision or action is already within the
Administrative Member's express authority (or is subject to a
different consent or approval requirement or standard) under
any applicable provision of this Agreement.
3.3 Disputes Regarding Major Decisions.
(a) If the Administrative Member or the Non
Administrative Member (the "Porposing Member") notifies
the other such Member (the "Receiving Member") in writing
that it is requesting the Receiving Member's approval of a
Major Decision, and, within ten (10) Business Days after such
notice is given or deemed given, (i) the Receiving Member has
not approved such Major Decision in writing (which shall be
deemed to include failing to respond at all to the approval request,
failing to communicate a definitive decision in response to an
approval request, affirmatively disapproving of the applicable
Major Decision, or any combination of the foregoing), (ii) the
Proposing Member has not withdrawn such request for approval,
and (iii) the Members shall not have otherwise resolved such
Major Decision in writing, then the Proposing Member may
notify the Receiving Member in writing that a dispute exists with
respect to a Major Decision ("Major Decision Dispute Notice").
If the Proposing Member in good faith believes that expedited
resolution of such Major Decision is necessary for the
Company to avoid or minimize material liabilities or to avoid or
minimize a material adverse
effect on its business or assets, the Proposing Member may
elect to designate the Major Decision as an "Expedited Major
Decision" in the Major Decision Dispute Notice. The
Proposing Member shall provide to the Receiving Member such
information as is reasonably requested by the Receiving Member
in connection with the evaluation of such Major Decision.
(b) The Major Decision Dispute Notice shall set forth
in reasonable detail the Major Decision in question and which
category(ies) of Major Decision described in Section3.2 are
involved. In the event a Proposing Member elects to deliver a
Major Decision Dispute Notice, resolution of the dispute will
first be subject to the Executive Negotiation Period prior to
invoking any other dispute resolution procedures set forth
hereunder.
(c) In the event a Proposing Member elects to deliver
a Major Decision Dispute Notice, and the Major Decision in
question is not (and does not include) an Extraordinary Decision
or a Sale Decision, then following the expiration of the Executive
Negotiation Period, resolution of the dispute with respect to the
Major Decision will be subject to a time period for mediation prior
to invoking any other dispute resolution procedures set forth
hereunder, pursuant to the mediation procedures that are set forth
on Exhibit A attached hereto; provided, however, that if the amount
of the dispute involves a monetary sum of less than $250,000, then
such mediation procedures shall not apply, and either the Proposing
Member or the Receiving Member may invoke the binding arbitration
procedures set forth in Exhibit B to resolve such Major Decision
immediately upon the expiration of the Executive Negotiation Period
(and for a period of five (5) Business Days thereafter). In addition,
and if applicable, for a period of five (5) Business Days following
expiration of the Executive Negotiation Period, if the dispute
described in this Section3.3(c) is not submitted to mediation or is
not settled by negotiation or mediation as provided herein, then either
the Proposing Member or the Receiving Member may invoke the
binding arbitration procedures set forth in Exhibit B to resolve such
Major Decision. If neither the Proposing Member nor the Receiving
Member invokes the binding arbitration procedures set forth in
Exhibit B within the five (5) Business Day time period provided for
above (after the mediation ends and/or the Executive Negotiation
Period expires, in cases where mediation is not provided for hereunder),
then the original request for approval of a Major Decision which
triggered the Major Decision Dispute Notice shall be deemed
withdrawn for all purposes, and the Company shall not take any
action or make any decision with respect to such Major Decision
(i.e., the status quo shall prevail).
(d) In the event a Proposing Member elects to deliver a
Major Decision Dispute Notice, and the Major Decision in question
is (or includes) an Extraordinary Decision, then following the
expiration of the Executive Negotiation Period, if the dispute
described in this Section3.3(d) is not settled by negotiation or
otherwise as provided herein, then the Proposing Member's request
for approval of the applicable Major Decision shall be deemed
withdrawn for all purposes, and the Company shall not take any
action or make any decision with respect to such Major Decision
(i.e., the status quo shall prevail). The Members may, but neither
Member shall be obligated to, take such dispute regarding an
Extraordinary Decision to mediation
pursuant to the mediation procedures that are set forth on
Exhibit A attached hereto (and in no event shall a dispute
regarding an Extraordinary Decision be subject to binding
arbitration).
(e) In the event a Proposing Member elects to deliver a
Major Decision Dispute Notice, and the Major Decision in
question is (or includes) a Sale Decision, then (i)if Stabilization
has not occurred, then such Major Decision shall be treated as
an Extraordinary Decision subject to Section3.3(d), (ii)if
Stabilization has occurred, but the process described in Section
10.8 has not been fully completed (either through a Sale of the
Property or completion of the Conversion), then the Company
shall not take any action or make any decision with respect to
such Major Decision (i.e., the status quo shall prevail) until the
process described in Section 10.8 has been fully completed,
and (iii)if Stabilization has occurred, and the process
described in Section 10.8 has been fully completed, then any
disagreement or dispute with respect to such Sale Decision
shall be settled and resolved solely by Investor, as determined
in Investor's sole, but good faith, discretion. The Members
may, but neither Member shall be obligated to, take any
dispute regarding a Sale Decision to mediation pursuant
to the mediation procedures that are set forth on Exhibit A
attached hereto (and in no event shall any dispute regarding
a Sale Decision be subject to binding arbitration).
3.4 Acts of the Company and the Members.
(a) Whenever in this Agreement or elsewhere it is
provided that a demand shall be made by, or acts shall be
performed by or at the direction of or any approval shall be
obtained from, MRP, all such demands, acts or approvals
are to be made, performed or given by any one (1) of the
Persons listed on Schedule 3.4 attached hereto under the
heading "Representatives of MRP" who shall be fully vested
with the authority to act for MRP until such time as MRP shall
deliver written notice to Investor designating one or more
replacement or additional representatives, and Investor shall be
entitled to rely upon any action by any such person as the
authorized act of MRP.
(b) Whenever in this Agreement or elsewhere it is
provided that a demand shall be made by, or acts shall be
performed by or at the direction of or any approval shall be
obtained from, Investor, all such demands, acts or approvals
are to be made, performed or given by any one (1) of the
Persons listed on Schedule 3.4 attached hereto under the
heading "Representatives of Investor" who shall be fully
vested with the authority to act for Investor until such time
as Investor shall deliver written notice to MRP designating
one or more replacement or additional representatives, and
MRP shall be entitled to rely upon any action by any such
person as the authorized act of Investor.
3.5 Out-of-Pocket Expenses. Each Member shall bear
its own out-of-pocket expenses incurred by such Member
and directly related to the business of the Company
(including without limitation any overhead or personnel
expenses of any such Member), except as expressly provided
in this Agreement. The foregoing notwithstanding, if the
Administrative Member acting in good faith and for a proper
Company purpose, and under circumstances where the
Administrative Member has due authority hereunder to incur
or pay such expense or expenditure
(either because it already has received Member approval for
such expenditure, or under the express expenditure authority
granted to the Administrative Member under Section 3.2(j),
3.2(m) or Section 6.4 of this Agreement), advances from its
own funds the amount needed to pay a Company expense,
such payment will be considered a short term advance by
the Administrative Member to the Company, and will be
reimbursed by the Company to Administrative Member
promptly after a written request for such reimbursement
(including reasonable supporting documentation, if applicable)
is provided by the Administrative Member to the other
Member.
3.6 Replacement of MRP as Administrative Member.
(a) If there is a Manager Removal Event at any time
when MRP is the Administrative Member, then subject to
Investor's compliance with the preconditions set forth in Section
3.6(c), upon written notice of removal from Investor to the
Administrative Member, Investor, or any of its Affiliates
specified in such notice of removal, shall become the
Administrative Member, effective upon the date set forth in
such notice. The term "Manager Removal Event" means:
(i)MRP's commission of material acts of gross negligence or
intentional misconduct in connection with the performance of
its service as Administrative Member hereunder, (ii) any
material default by MRP in the performance of its responsibilities
under this Agreement, which default is not fully cured and
discontinued within thirty (30) days after written notice by
Investor to MRP, (iii) any failure by MRP to make a Mandatory
Capital Contribution required hereunder which continues for
more than five (5) Business Days after notice of such failure
from Investor to MRP, (iv) the MRP Principals fail to own,
directly or indirectly, capital and profits equivalent to a five
percent (5%) Percentage Interest, (v) there is a Bankruptcy
with respect to MRP, (vi)if, due to resignation or retirement,
or other circumstances not described in the following clause (vii),
either Robert Murphy or Frederick Rothmeijer ceases to have
an active senior management role with respect to MRP or the
Company, (vii) if, due to death, disability or legal incapacity, both
Robert Murphy and Frederick Rothmeijer cease to have an active
senior management role with respect to MRP or the Company,
or (viii) the Development Agreement terminates in accordance
with its terms, other than as a result of the natural expiration of
the term thereof or due to a default by the Company thereunder
(unless such default is attributable solely to MRP's actions or
failures to act in its capacity as Administrative Member and/or
as a Member of the Company).
(b) Notwithstanding any provision to the contrary in this
Agreement, upon a Manager Removal Event:
(1) MRP shall not have any voting, approval, consent,
information or other noneconomic rights with respect to Major
Decisions (except that, notwithstanding the foregoing, even after a
Manager Removal Event, (i) Investor will be required to continue
to conduct itself in accordance with the Standard of Conduct
provided for herein, (ii) MRP will have the right to approve the
Major Decisions described in clauses (a), (b), (e), (i), and of
Section 3.2, and (iii) unless MRP and all MRP Guarantors are
released from personal liability by the Company's lender(s)
under any loan(s) then in effect to the Company and under all
guaranties of such loan(s) (as applicable), either prior to (or as
part of) the transaction, decision or action then
under consideration, MRP will also have the right to approve
the Major Decisions described in clauses (f), (q), (r), (jj)
and (kk) of Section 3.2, if and to the extent the transaction,
decision or action then under consideration would (A) increase
the liability of MRP or the MRP Guarantors for, or under the
documents evidencing, such loan(s) and/or guaranties, (B)
constitute an admission of liability under the documents
evidencing such loan(s) and/or guaranties, (C) constitutes
an agreed liquidation of any claim for such liability, (D)
cause a default or otherwise trigger personal liability under
any of the documents evidencing such loan(s) and/or guaranties,
or (E) otherwise materially modify the terms of any loan
documents or guaranties in a manner which directly affects
MRP and/or the MRP Guarantors,
(2) any right of MRP to receive Promote
Distributions shall immediately be terminated and forfeited,
and any such Promote Distributions shall thereafter be
distributed to the Members (pro rata in proportion to their
Percentage Interests), provided that this clause (2) shall not
apply to any Manager Removal Event described in the
clauses (v), (vi), or (vii) of Section 3.6(a), and
(3) the Development Agreement shall be
terminable by the Investor without penalty or fee.
(c) As a condition precedent to removing MRP as
the Administrative Member, Investor shall either (1)cause
the lender under any Company Financing to release the
MRP Guarantors from any and all liability arising under all
applicable Guaranties thereunder, for the period commencing
from and after the date of removal of MRP as the Administrative
Member, except for, and solely to the extent, such post-removal
liability was caused by the post-removal gross negligence, misconduct,
bad faith or affirmative wrongful acts of MRP or the MRP Guarantors
or pre-removal actions of MRP or the MRP Guarantors, or (2)
provide to the MRP Guarantors an indemnity, in form and substance
reasonably acceptable to the MRP Guarantors (and from an
indemnitor entity reasonably acceptable to the MRP Guarantors),
from and against any and all liability arising under all applicable
Guaranties thereunder, for the period commencing from and after the
date of removal of MRP as the Administrative Member, except for,
and solely to the extent, such post-removal liability was caused by
the post-removal gross negligence, misconduct, bad faith or
affirmative wrongful acts of MRP or the MRP Guarantors or
pre-removal actions of MRP or the MRP Guarantors. If Investor
or any other Person designated by Investor agrees (in its sole
discretion) to execute and deliver a substitute guaranty in connection
with obtaining a release pursuant to clause (1) of the preceding
sentence, then (A)such Person shall be protected, indemnified and
held harmless by the Company in the same manner as set forth in
Section 5.4 with respect to the MRP Guarantors, mutatis mutandis,
and (B)MRP shall, and shall cause the MRP Guarantors to, jointly
and severally provide to such Person an indemnity, in form and
substance reasonably acceptable to Investor, against any liability
under the applicable replacement guaranties for events that arise
after the removal of MRP as the Administrative Member, but solely
to the extent such post-removal liability arose due to the post-
removal gross negligence, misconduct, bad faith or affirmative
wrongful acts of MRP or the MRP Guarantors or pre-removal
actions of MRP or the MRP Guarantors.
3.7 Standard of Conduct. Without limiting or diminishing any
higher standard of conduct or different standard of conduct
expressly provided for in this Agreement with regard to particular
actions, decisions or approvals, each Member shall discharge
such Member's duties as a Member (and, as applicable,
Administrative Member), including in proposing, and in granting
or denying approval to any proposed, Major Decisions (other
than Extraordinary Decisions), in accordance with the following
standard ("Standard of Conduct"): in good faith, in a manner
such Member reasonably believes to be in the best interest of the
Company and its Subsidiaries (if any), with the care that an
ordinarily prudent person in a like position would exercise under
similar circumstances, with the reasonable belief that such action,
decision or approval was within the scope of its authority under
this Agreement, and, with regard to the handling of Company
funds, as a fiduciary with the obligation strictly to account for all
funds received or disbursed. Each Member shall be entitled to
rely on information, opinions, reports or statements, including
financial statements and other financial data, if prepared or
presented by: (a) one (1) or more agents or employees of the
Company whom the Member reasonably believes to be reliable
and competent in the matters presented or (b) legal counsel,
public accountants or other Persons as to matters the Member
reasonably believes are within the Person's professional or expert
competence. A Member shall not be personally liable to the
Company, any Member or any third party for any action taken,
or any failure to take action, as a Member, including as Administrative
Member, for which the Company indemnifies such Member pursuant
to Section 5.2. Notwithstanding the foregoing provisions of this
Section 3.7 or any other provision in this Agreement, (i)the
Standard of Conduct shall not apply, and each Member may act
in its own best interest without consideration of the interests of the
Company or any other Member, in all matters pertaining to
Section 10.8 and/or any Extraordinary Decisions, or any other
decision stated in this Agreement to be subject to the "sole
discretion" of a Member, (ii)the Standard of Conduct shall not
be construed to obligate any Member personally to incur any cost,
liability or obligation that is not expressly the cost, liability or
obligation of such Member under this Agreement, and (iii)the
Standard of Conduct shall not apply to a Member with respect
to any action or decision taken or made on the Company's (or
Subsidiary's) behalf, which action or decision has been approved
or ratified by all of the Members after reasonable disclosure of
material information known by such Member, whether or not
such action or decision requires the approval of all of the
Members.
3.8 Effect of a Withdrawal Event. Upon (i) a Withdrawal
Event or (ii) the conversion of the Interest of MRP to a Post-
Withdrawal Interest, then automatically and without further
act the Interest of MRP shall automatically be converted to a
Post-Withdrawal Interest, which shall have all of the following
attributes:
(a) MRP will cease to serve as Administrative Member
hereunder and Investor may designate itself or another Person
to serve as Administrative Member;
(b) MRP will cease to have the right to approve Major
Decisions, other than the Major Decisions referenced in clause
(ii) (and, to the extent applicable, clause (iii)) of Section
3.6(b)(1), above;
(c) Notwithstanding the forfeiture of MRP's voting
and/or approval rights, Investor will be required to continue
to conduct itself in accordance with the Standard of Conduct
provided for herein; and
(d) Any right of MRP to receive Promote Distributions
shall immediately terminate, and any such Promote
Distributions shall thereafter be distributed to the Members
(pro rata in proportion to their Percentage Interests); and
(e) Investor shall have the right to terminate the
Development Agreement.
ARTICLE 4
VERTICAL CONSTRUCTION
4.1 Actions prior to Vertical Construction. During the
Development Period, MRP, as Administrative Member, shall
use commercially reasonable and diligent efforts to cause the
Company and/or Development Manager (pursuant to the
Development Agreement) to take the actions described in
Sections 4.2 through 4.9 so that the Company is in a position
to commence and perform Vertical Construction of the Project
by the Vertical Target Date.
4.2 Design Documents.
(a) MRP (either directly and/or through Development
Manager) shall oversee preparation by the Architect (and any
other applicable Design Professionals) of design development
documents and construction documents for the Improvements
("Design Documents") within the time frames provided for
under the Preliminary Development Schedule and in all events
by the Vertical Target Date. The Design Documents shall be
sufficient for the Company to apply for sitework-related
Development Approvals, for the Construction Contractor to
perform all required sitework in accordance therewith, and for
the Company to apply for building permits, enter into the
Construction Contract without material allowances (unless the
Members elect to do so in their discretion), and provide all
required construction details for the construction of the
Improvements. The Design Documents shall be consistent
with the Approved PUD and all applicable Legal Requirements,
and shall further be subject to the written approval of MRP
and Investor, which approval shall not be unreasonably
withheld, conditioned or delayed. MRP may elect, from time
to time, to engage in an informal process of providing drawings,
design details and/or specifications to Investor on an interim
basis, in order to obtain Investor input or approval before
having the applicable design professional incorporate the same
into a formal submission of the Design Documents to Investor
for approval. Investor agrees to cooperate in responding
expeditiously to such informal requests for approval, where
practicable without extraordinary expense or burden.
(b) Within seven (7) Business Days after its receipt of
the Design Documents and/or any drawing, component, or
element thereof (or modifications thereto), accompanied by a
formal written request for approval from MRP (an "Approval
Request"), the recipient
Member(s) shall communicate its written approval or disapproval
thereof to the other Member(s) (such written communication, an
"Approval Response"). Failure of Investor to deliver a written
disapproval within such seven (7) Business Day period shall be
deemed to constitute Investor's approval of the applicable Approval
Request, in its entirety.
(c) MRP and Investor will confer with regard to each
objection raised, discuss and evaluate the alternatives for
addressing such objections, and cooperate in a mutual, good
faith effort to achieve mutual, final approval of the Design
Documents, as applicable, on as expeditious a basis as the
parties can reasonably achieve under the circumstances (and,
to the extent practicable, within a time frame shorter than the
maximum time periods allowed hereunder).
4.3 Development Approvals and Building Permits. Upon
final approval of the Design Documents by MRP and Investor,
MRP (either directly and/or through Development Manager)
shall cause the Design Documents, to be submitted to the
appropriate Governmental Authorities for review, approval and
further processing, with the objective of securing all required
Development Approvals and building permits within the time
frames provided for under the Preliminary Development Schedule.
MRP and Development Manager will provide Investor with copies
of any and all submissions, resubmissions and other correspondence
or written communications by the Company or Development
Manager with, and any written materials, comments, proposed
changes, approval letters and/or other written communications
received from, Governmental Authorities in the review and
processing of the Design Documents and any other materials
submitted by the Company or Development Manager in
connection with the Company's application for issuance of the
Development Approvals and/or building permits. Other than
de minimis modifications, all modifications to the Design
Documents and/or other submissions made by the Company
or Development Manager to Governmental Authorities
required or requested by D.C. Governmental Authorities in
their review of in connection with seeking the Development
Approvals and/or building permits, will be subject to the
mutual review and approval of MRP and Investor, which
approval shall not be unreasonably withheld, conditioned or
delayed.
4.4 Construction Financing.
(a) During the Development Period, and within the time
frames contemplated under the Preliminary Development Schedule,
MRP shall use good faith and commercially reasonable efforts to
seek, on behalf of the Company, nonrecourse construction financing
in the Target Financing Amount, or such other amount as Investor
and MRP may mutually agree (the "Construction Financing"). The
terms and conditions of any Construction Financing and all documents
to be executed and delivered in connection with any Construction
Financing shall be subject to the prior written approval of both MRP
and Investor, which, except as provided in Section 4.4(b), shall not
be unreasonably withheld, conditioned or delayed.
(b) If, in connection with the Construction Financing, the
Construction Lender requires that a Guaranty be delivered as a
condition precedent thereto, MRP shall cause the MRP Guarantors
to provide any such Guaranties, provided that the form and substance
of each such Guaranty shall be consistent with generally prevailing
market requirements or otherwise approved by MRP and the MRP
Guarantors, in their sole discretion. In no event (i) shall the MRP
Guarantors be required to provide a payment or repayment guaranty,
or any guaranty other than the Guaranties described above in
connection with the Construction Financing, or (ii) shall Investor or
any Affiliate of Investor be required to provide any Guaranty, or
payment or repayment guaranty, in connection with any Construction
Financing.
4.5 Construction Contract.
(a) After completion of the Design Documents, and otherwise
at a time consistent with the requirements of the applicable sections of
the Preliminary Development Schedule, but in all events prior to the
Vertical Target Date, MRP (either directly and/or through Development
Manager) shall use good faith and commercially reasonable efforts to
procure a guaranteed maximum price construction contract for
construction of the Improvements in accordance with the Design
Documents (as awarded, and as finally negotiated between the parties
thereto, the "Construction Contract," whether one or more).
(b) The contractor(s), the process for selection of the
contractor(s), and the terms of the Construction Contract shall be
subject to the prior written approval of Investor, which approval
shall not be unreasonably withheld, conditioned or delayed. In
general, such process may include the pre-selection of a mutually
approved general contractor, with a requirement that competitive
bidding take place at the subcontractor level, or the selection of a
mutually approved general contractor based on competitive bidding
that takes place at the prime contractor level, as mutually approved
by MRP and Investor.
(c) The parties acknowledge that Development Manager
is responsible for managing the procurement process for the selection
of the contractor, and the preparation and negotiation of the
Construction Contract with such contractor (with the assistance of the
Company's legal counsel), provided such selection and negotiation
shall in all events be subject to the mutual approval of MRP and
Investor (which approval will not be unreasonably withheld,
conditioned or delayed). As more fully provided for in the
Development Agreement, Development Manager shall ensure
that the Construction Contract is consistent with the Final
Development Budget and Final Development Schedule, unless
otherwise expressly approved by MRP and Investor (which
approval may encompass the Company's agreement in the
Construction Contract to the inclusion of material allowance
items as to which the Company knowingly accepts a risk of
price fluctuation for particular materials or items which are
subject to such allowance).
(d) In connection with seeking Investor approval of the
Construction Contract, the selection of the general contractor,
and/or the pricing, schedule and other financial and legal terms
applicable thereto, MRP agrees to provide Investor with a formal
written request for approval, accompanied by a true, correct and
complete copy of the Construction Contract or other item as to
which Investor's approval is being sought. If Investor wishes to
disapprove of,
or to express objections to, the contractor which MRP is
recommending be selected, or to the pricing or other terms
of any Construction Contract or other related document, or to any
other aspect thereof, Investor shall provide a written notice to MRP
stating such disapproval within seven (7) Business Days after its
receipt of MRP's request for approval. Failure of Investor to deliver
a written disapproval within such seven (7) Business Days after its
receipt thereof shall be deemed to constitute Investor's approval of
such written request for approval by MRP, in its entirety.
4.6 Final Development Budget.
(a) Attached hereto as Exhibit D is a budget setting forth
MRP's good faith estimate of all Total Project Costs to be incurred
in connection with the entitlement, design, development, Vertical
Construction, and completion of the Improvements, as previously
approved by Investor (the "Preliminary Development Budget").
From time to time, but at least monthly, MRP (either directly, or
through Development Manager) shall prepare and submit to
Investor for its approval (which shall not be unreasonably
withheld, conditioned or delayed) updates to the Preliminary
Development Budget, which shall include updates to the
estimated Development Costs of the Project as of such time
(if any). Each update to the Preliminary Development Budget
shall be in a format consistent with the previous Preliminary
Development Budget and reasonably satisfactory to MRP and
Investor, and shall reflect all anticipated Development Costs for
the Project.
(b) MRP, in conjunction with Investor, will continue to
update the Preliminary Development Budget in accordance with
Section 4.6(a) until the commencement of Vertical Construction.
The final updated Preliminary Development Budget approved
(in accordance with Section 4.6(a)) as of satisfaction of the
Vertical Construction Contingencies described in Section 4.10(a)(4),
will be deemed the "Final Development Budget" for all purposes
hereof. Once adopted, the Final Development Budget may be
amended only as expressly provided in accordance with Section
6.4.
(c) Except as otherwise expressly provided for in this
Agreement and/or the Development Agreement (including Section
6.4(c) and Section 6.4(d)), neither MRP nor Development Manager
will be authorized to make any expenditure that is not provided
for in the then approved Preliminary Development Budget. The
Development Agreement will require Development Manager to
(i) update the Company and Investor on the status of the Company's
compliance with each applicable approved Preliminary Development
Budget, including the Final Development Budget, (ii) track all
budgeted items, and (iii) provide to Owner a written analysis of
actual vs. budgeted costs as part of a monthly progress report
required during prior to Stabilization.
(d) MRP shall keep complete and accurate books and
records relating to the Development Costs, and such books and
records shall be open and available to Investor for inspection,
copying and audit during normal business hours, provided
Investor gives not less than two (2) Business Days prior notice
to MRP of the time and date upon which Investor
proposes to perform such inspection and/or audit. In addition,
until Stabilization, MRP shall provide to Investor, on or before
the fifteenth (15th) day of each month, a report showing (on
a reasonably itemized basis) all Development Costs which
have been paid by MRP or any MRP Affiliate (and credited
as part of MRP's Capital Contribution to the Company), or
by the Company, through the end of the preceding month.
4.7 Final Development Schedule.
(a) Attached hereto as Exhibit E, is a preliminary
development schedule for the development and construction
of the Project (the "Preliminary Development Schedule").
From time to time during the Development Period, but at
least monthly, MRP (either directly or through Development
Manager) shall prepare and submit to Investor for its review
and approval (which shall not be unreasonably withheld,
conditioned or delayed) updates to the Preliminary
Development Schedule, which shall show in detail MRP's
most recent good faith estimate for the timing of those items
on the Preliminary Development Schedule. The form and
degree of detail of each update to the Preliminary Development
Schedule shall be subject to the mutual approval of MRP and
Investor, and shall include the various activities that MRP and/or
Development Manager expect to be undertaken in connection
with the Project, the parties responsible for such activities, the
approximate timing of the commencement and completion of
such activities, and the interrelationship of such activities.
(b) MRP and Development Manager, in conjunction
with Investor, will continue to update the Preliminary Development
Schedule in accordance with Section 4.7(a) until commencement
of Vertical Construction. The final updated Preliminary
Development Schedule approved as of satisfaction of the Vertical
Construction Contingency described in Section 4.10(a)(5) shall
be deemed the "Final Development Schedule." Any additional
amendments or modifications to the Final Development Schedule
shall be subject to the prior written approval of MRP and Investor
(not be unreasonably withheld, conditioned or delayed).
4.8 Completion of Equity.
(a) From time to time during the Development Period,
Investor and MRP, each acting reasonably and in good faith,
shall, upon the request of either Investor or MRP, mutually
determine the amount of the total Capital Contributions that
will be required in connection with the Project that are in
excess of the Initial Capital Contributions otherwise required
to be advanced by Investor and MRP pursuant to Section
7.1(a)-(c) ("Projected Additional Capital Contributions").
(b) At any time prior to the satisfaction of all of the
Vertical Construction Contingencies, Investor and MRP
shall each have the right to elect to provide all or a portion
of the Projected Additional Capital Contributions pursuant
to Section 7.1(d), utilizing the process described in this
Section 4.8 in each instance in which new or additional
Projected Additional Capital Contributions would be required
in order to pay all costs provided for under the then approved
Preliminary Development Budget. Upon making a d
etermination that Projected
Additional Capital Contributions are required, and
determining the total amount anticipated to be required,
either MRP or Investor will have the right to send a notice
(a "Projected Capital Funding Notice") to all of the
Members identifying the need for Projected Additional
Capital Contributions, specifying the aggregate amount
thereof and the basis or reasons why such Projected
Additional Capital Contributions are anticipated to be
required, and requesting that the Members each indicate
whether it will agree to provide some or all of the
Projected Additional Capital Contributions requested in
such Projected Capital Funding Notice (and if it will,
specifying the exact amount that such Member will agree
to contribute). Within seven (7) Business Days after its
receipt of such Projected Capital Funding Notice, Investor
and MRP shall each deliver a written notice to each other
and to the Development Manager indicating whether it will
elect to make any Projected Additional Capital Contributions,
and if so, stating the amount of Projected Additional Capital
Contributions that such Member is agreeing to provide. The
failure of either Investor or MRP to deliver such notice shall
be deemed its election not to make any such Projected
Additional Capital Contribution. If either Investor or MRP
(as applicable, an "Electing Member"), or both, elect to
provide all or a portion of the Projected Additional Capital
Contributions, then the amount each such Electing Member
shall be obligated to contribute shall be as follows:
(1) If the aggregate amount of the Projected
Additional Capital Contributions proposed to be contributed
from the Electing Member (or Electing Members, if applicable),
collectively, is less than or equal to the total amount of the
Projected Additional Capital Contributions requested under
the applicable Projected Capital Funding Notice, then each
such Electing Member shall contribute its elected amount of
the Projected Additional Contributions as a Mandatory Capital
Contribution;
(2) If the aggregate amount of the Projected Additional
Capital Contributions proposed to be contributed from the Electing
Members, collectively, is greater than the total amount of the
Projected Additional Capital Contributions requested under the
applicable Projected Capital Funding Notice, then (i) first, each
Electing Member shall contribute, as a Mandatory Capital Contribution,
the maximum amount it has agreed to provide up to the amount
necessary so as to maintain the same relative Percentage Interests
between Investor and MRP as existed immediately prior to such
Projected Capital Funding Notice, and (ii) second, if the aggregate
amount contributed by both Electing Members pursuant to subclause
(i) is less than the aggregate amount of the Projected Additional
Capital Contributions, then the Electing Member who has agreed
to contribute more than its relative percentage interest of the total
Projected Additional Capital Contributions under subclause (i)
shall contribute, as a Mandatory Capital Contribution, the
remaining amount of Projected Additional Capital Contributions.
(c) The Members acknowledge and agree that (i) as of
the Effective Date neither Investor nor MRP has made any commitment,
agreement or undertaking to make any Projected Additional Capital
Contribution, (ii) Investor and MRP shall each be obligated to make
Projected Additional Capital Contributions only if and to the extent
it expressly elects to make
such Projected Additional Capital Contributions by written notice
given pursuant to Section 4.8(b), and (iii) the election (or deemed
election) by Investor and/or MRP pursuant to Section 4.8(b) not
to make any Projected Additional Capital Contributions shall not
constitute a default under this Agreement.
(d) Unless Investor and MRP, collectively, elect to provide
100% (or more) of the Projected Additional Capital Contributions
requested in a Projected Capital Funding Notice pursuant to the
process described in Section 4.8(b), then Investor and MRP, each
acting reasonably and in good faith, shall endeavor to identify an
investor (a "Funding Investor") that is mutually acceptable to them,
and that is willing to provide the Projected Additional Capital
Contributions that Investor and MRP are unwilling or unable to
provide (either through an equity investment in the Company, or
through a mezzanine loan, provided the same is permitted under
the terms of the Company's Construction Financing). After
mutually approving the identity of a Funding Investor, MRP and
Investor will (1) cooperate with one another to negotiate the terms
of an equity investment or mezzanine loan with such Funding
Investor (including any amendments to this Agreement that are
required in connection therewith), (2) use commercially reasonable
efforts to achieve the most advantageous terms and conditions for
such equity investment or mezzanine loan under then applicable
market conditions, and (3) provided all of the other Vertical
Construction Contingencies have been satisfied or waived by
MRP and Investor, admit such Funding Investor to the
Company (or a Subsidiary) as a Member under the approved
terms of such equity investment, or, if applicable, consummate
a mezzanine loan with Funding Investor under the approved
terms for such mezzanine loan, concurrently with the
Company's closing under the Construction Loan. The final
terms of any equity investment or mezzanine loan under this
Section 4.8(d) will be subject to the mutual approval of
Investor and MRP, which approval will not be unreasonably
withheld, conditioned or delayed. If this Section 4.8(d) is
applicable, then consummating closing on the admission of
the Funding Investor to the Company (or a Subsidiary), or
consummating closing on a mezzanine loan with the Funding
Investor, as applicable, shall constitute an additional Vertical
Construction Contingency hereunder.
4.9 Other Development Activities.
(a) During the Development Period, MRP (either
directly, and/or through Development Manager) shall cause to
be undertaken by the appropriate parties, such as the Design
Professional, construction contractors, service contractors or
other Persons, all other activities which are reasonably required
to prepare the Property for commencement of Vertical
Construction within thirty (30) days after the Members approve
such commencement of Vertical Construction (or
commencement of Vertical Construction is otherwise
authorized pursuant to this Article 4). All such matters shall
be subject to the prior written approval of Investor, which
approval shall not be unreasonably withheld, conditioned or
delayed.
4.10 Vertical Construction Contingencies.
(a) For purposes of this Agreement, the "Vertical
Construction Contingencies" shall be:
(1) Approval, in accordance with Section 4.2,
of the Design Documents necessary to commence Vertical
Construction;
(2) Issuance (or the immediate availability of) all
Development Approvals and building permits necessary to
commence Vertical Construction;
(3) Approval, in accordance with Section 4.5,
of the Construction Contract, and the willingness of the
construction contractor thereunder to execute and deliver
the same;
(4) Approval, in accordance with Section 4.6,
of the Final Development Budget;
(5) Approval, in accordance with Section 4.7,
of the Final Development Schedule;
(6) Approval, in accordance with Section 4.4,
of all loan documentation for the Construction Financing,
and the willingness of the Lender thereunder to execute and
deliver the same; and
(7) The commitment of Investor, MRP and/or a
Funding Investor (if applicable) to provide all of the Projected
Additional Equity Contribution required pursuant to Section 4.8.
(b) Upon the determination by either MRP or Investor
that the Vertical Construction Contingencies have been satisfied,
MRP or Investor, as applicable, may notify the other Member in
writing of the same ("Vertical Contingencies Notice"). Within
fifteen (15) days after receipt of the Vertical Contingencies Notice,
the receiving Member shall notify the sending Member whether it
concurs with the determination that the Vertical Construction
Contingencies have been satisfied (and the failure of the receiving
Member to send such notice shall be deemed its concurrence).
If the Members disagree on whether the Vertical Construction
Contingencies have been satisfied, the dispute shall be settled by
binding arbitration pursuant to Exhibit B and Section 4.14. If the
Members determine that the Vertical Construction Contingencies
have been satisfied, either through agreement or arbitration, then
the provisions of Sections 4.11 shall apply.
(c) If the Vertical Construction Contingencies are not
satisfied by the Vertical Target Date (as the same may be
extended from time to time pursuant to this Agreement), either
by agreement or by arbitration, and such failure is not the result
of a default by MRP in its obligations under this Agreement, then
Investor shall elect, at its option, either (i) to extend the Vertical
Target Date for a period of three (3) months, or (ii) to convert
the Interest of MRP from
that of Administrative Member and Member of the Company
to the holder of a Post-Withdrawal Interest, as more fully
provided for in Section 3.8. Investor shall notify MRP in
writing of such election within fifteen (15) days after the
Vertical Target Date, and any failure of Investor to
provide such notice shall be deemed its election pursuant to
the foregoing clause (i). If Investor makes the election
described in the foregoing clause (ii), then MRP may elect,
at its option, to initiate the Put of its Interest to Investor
pursuant to Section 4.12. MRP shall notify Investor in
writing of such election within fifteen (15) days after
MRP's receipt of Investor election pursuant to the
foregoing clause (ii).
(d) If the Vertical Construction Contingencies
are not satisfied by the Vertical Target Date (as the same
may be extended from time to time pursuant to this Agreement),
as determined either by agreement or by arbitration, and such
failure is the result of a default by MRP in its obligations under
this Agreement, then the same shall constitute a Manager
Removal Event within the meaning of this Agreement and FRP
shall have the right to exercise all rights and remedies available
under this Agreement, or at law or in equity.
(e) If the Vertical Construction Contingencies are not
satisfied by the Vertical Target Date (as the same may be
extended from time to time pursuant to this Agreement), as
determined either by agreement or by arbitration, and such
failure is the result of a default by Investor in its obligations
under this Agreement, then MRP shall have the right to
exercise all rights and remedies available under this Agreement,
or at law or in equity.
4.11 Satisfaction of Vertical Construction Contingencies;
Notice to Proceed. If the Vertical Construction Contingencies
are satisfied by the Vertical Target Date (as determined either by
agreement or arbitration), then within fifteen (15) days after the
Members have determined (either by agreement or by arbitration)
that the Vertical Construction Contingencies have been
satisfied ("Vertical Decision Period"), each Member may notify
the other in writing ("Notice to Proceed") that it approves
commencement of Vertical Construction. If both Members
issue a Notice to Proceed, then MRP (either directly and/or
through Development Manager) shall promptly proceed with
Vertical Construction. If both Members do not issue a Notice
to Proceed, then the following shall apply.
(a) If neither Investor nor MRP issues a Notice to
Proceed , then the Vertical Target Date shall automatically
extend for a period of three (3) months.
(b) If only MRP issues a Notice to Proceed, then
within fifteen (15) days after expiration of the Vertical Decision
Period, MRP may elect, by written notice to Investor, either
(i) to initiate the Put of its Interest to Investor pursuant to
Section 4.12 , or (ii) to extend the Vertical Target Date for a
period of three (3) months. If MRP does not notify Investor
of its election, then it shall be deemed to have elected to
extend the Vertical Target Date for a period of three (3) months.
(c) If only Investor issues a Notice to Proceed, then
within fifteen (15) days after expiration of the Vertical Decision
Period, Investor may elect, by written notice to MRP, (i) to
initiate the Call of MRP's interest pursuant to Section 4.12,
(ii) to convert the Interest of MRP from that of Administrative
Member and Member of the Company to the holder of a
Post-Withdrawal Interest, as more fully provided for in
Section 3.8, or (iii) to extend the Vertical Target Date for a
period of three (3) months. If Investor does not notify MRP
of its election, then it shall be deemed to have elected to
extend the Vertical Target Date for a period of three (3) months.
4.12 Put/Call. MRP shall have the right to require Investor
to purchase MRP's Interest ("Put") and Investor shall have
the right to require MRP to sell MRP's Interest ("Cal")
pursuant to this Section 4.12. This Section 4.12 shall only
apply where this Agreement expressly provides that MRP
has the right to exercise the Put or Investor has the right to
exercise the Call.
(a) If MRP or Investor (as applicable, "Initiating
Member") provides notice ("Put/Call Notice") to the other
pursuant to Section 4.10 or 4.11 that it is exercising the Put
or Call, then within fifteen (15) days after the date of the
Put/Call Notice the Initiating Member shall notify the other
Member ("Non-Initiating Member") in writing ("Valuation
Notice") of its good faith determination of the gross fair
market value of the Property ("Total Asset Value"). If the
Non-Initiating Member does not agree with the Total Asset
Value set forth in the Valuation Notice, and the Members
are unable to informally reach agreement on the Total
Asset Value within fifteen (15) days after the Non-Initiating
Member's receipt of the Valuation Notice, then the Non-Initiating
Member may invoke the valuation procedures set forth in
Exhibit C, in which event the Total Asset Value shall be
determined pursuant to Exhibit C. If the Non-Initiating
Member does not invoke the valuation procedures set
forth in Exhibit C by written notice to the Initiating Member
delivered prior to the expiration of such fifteen (15) day
period, then the Total Asset Value shall be as set forth
in the Valuation Notice. The purchase price ("Put/Call Price")
to be paid by Investor to MRP at the Put/Call Closing
shall be that amount that MRP would receive if such
assets were sold for the Total Asset Value, the Company
liquidated pursuant to Section 11.3, and the proceeds of such
liquidation were distributed to the Members in accordance
with Section 9.1, hereof, except that MRP shall not receive
Promote Distributions and Promote Distributions shall be
instead be distributed to the Members in proportion to
their Percentage Interests.
(b) Closing on the Put or Call ("Put/Call Closing")
shall occur on such date as Investor shall designate by not
less than five (5) days prior written notice to MRP, but in
no event later than ninety (90) day after the date on which
the Total Asset Value shall have been determined pursuant
to Section 4.12(a). At the Put/Call Closing:
(1) Investor shall pay to MRP the Put/Call Price
by wire transfer of immediately available funds.
(2) Simultaneously with the receipt of the Put-Call
Price, MRP shall execute and deliver all documents as may be
reasonably necessary or appropriate to effect (a) the Sale of its
Interest to Investor (or its designees) free and clear of all liens
and encumbrances, and (b) the withdrawal of MRP as a
Member of the Company.
(3) MRP shall pay all closing costs incurred in
connection with the Sale of its Interest that are customarily
paid by a seller of real property in the jurisdiction in Washington,
D.C., and Investor shall pay all closing costs incurred in connection
with the purchase of such Interest that are customarily paid by the
purchaser of real property in Washington, D.C. MRP and Investor
shall each pay the fees and expenses of their own legal counsel.
(4) If MRP defaults in the performance of its obligations
under this Section 4.12, Investor may exercise such rights and
remedies as may be available at law or in equity, including specific
performance. If Investor defaults in the performance of its obligations
under this Section 4.12, MRP may exercise such rights and remedies
as may be available at law or in equity, including specific performance.
4.13 Limitations. Subject to the ultimate responsibility of the
Design Professionals and, to the extent applicable, any contractors
performing construction of the Improvements, for compliance of the
Design Documents (and the Improvements constructed pursuant
thereto) with ADA and other applicable laws, rules and regulations
(including site plan requirements or height variances, if any, with respect
to the height of buildings constructed as part of the Project) (the
foregoing "Construction Compliance Requirements"), MRP shall use
reasonable efforts to cause Development Manager, in its review and
development of the Design Documents with the Design Professionals,
and in monitoring the performance of construction work by general
contractor, to identify (and, if and when identified, to inform the
Company and Investor of) any observed inconsistencies or non-
conformities between the Improvements, as designed and/or
constructed, and any Construction Compliance Requirements
applicable thereto. Without limiting the foregoing, and although
MRP (either directly or through Development Manager) shall
continue to be responsible (a) for overseeing the Design
Professionals in the preparation, submission and processing of
the Design Documents (including the responsibility to review and
comment upon plans and/or drawings prepared by the Design
Professionals, and to coordinate any Member approvals
associated therewith, prior to the Design Documents being
submitted or resubmitted to Governmental Authorities), and (b)
for using diligent efforts to adhere to the Preliminary Development
Schedule and Preliminary Development Budget in connection
with all of its Development Period supervisory obligations
hereunder, Investor acknowledges and/or agrees:
(a) that (1) neither MRP nor Development Manager is a
licensed civil engineer or licensed architect, (2) neither MRP nor
Development Manager is responsible for performing any design
services, (3) neither MRP nor Development Manager will have
control or charge of (or be responsible for) construction or
construction means, methods, techniques, sequences or
procedures, and (4) subject to MRP's compliance with the
Standard of Care and Development Manager's compliance with
its duties and responsibilities, and the standards applicable to
the performance of its development services, under the
Development Agreement, MRP and Development Manager
are not warranting to Investor or the Company that the
Design Documents comply (or will comply) with applicable
Legal Requirements, be free from errors or omissions by
the Design Professionals, or otherwise be sufficient for
their intended purposes,
and neither MRP nor Development Manager will be
responsible for the failure of the any Design Professional,
Traffic Consultant, Environmental Consultant, construction
contractor or other contractor, subcontractor or consultant of
the Company to carry out its or their respective duties and
obligations in accordance with its or their respective contracts
(and Investor and the Company will look solely to the Design
Professionals, and such contractors and consultants, for any
claims arising out of any errors or omissions, or other
professional liability, in the preparation of the Design Documents,
traffic studies, environmental assessments and remediation
services, and to the Construction Contractor(s) for any claims
for breach of the Construction Contract(s) or for warranty
claims arising out of defects in labor or materials associated
with the construction of the Improvements); and
(b) that (1) the process of seeking and obtaining
approval of the Design Documents is subject to unforeseeable
events, variables and other sources of potential delay (beyond
so-called "normal processing periods") which are beyond the
reasonable control of a developer, and may be unrelated to
any fault on the part of MRP, Development Manager, the
Design Professionals or any of the Company's other contractors
and consultants, (2) that the dates provided for in the
Preliminary Development Schedule constitute a projection or
estimate, based on MRP's and Development Manager's best
professional judgment, of the likely time periods for
achieving various Development Period milestones (and
while the Preliminary Development Schedule will be used
to measure timely performance of certain activities described
therein, subject to the terms, limitations and any adjustments
or automatic extensions that are applicable thereto, the
Preliminary Development Schedule does not constitute a final
Development Schedule, and will be subject to modification
and adjustment as provided for herein), and (3) as long as
MRP and Development Manager continue to use commercially
reasonable and diligent efforts to cause the Project (and all
of the constituent components thereof) to adhere to the
Preliminary Development Schedule (as modified and/or
adjusted pursuant hereto), the failure to achieve milestone
dates set forth therein shall not constitute or be construed as
a breach or default by MRP of its obligations hereunder, or
by Development Manager of its obligations under the
Development Agreement; and
(c) without in any manner obviating MRP's duties
and responsibilities during the Development Period under
this Article 4, MRP is not guaranteeing (1) the availability of
financing, (2) the availability of, or the cost that will be
required in order to obtain final approval of, all final
entitlements and approvals for the Project, and/or (3)
subject to Section 5.8(b), the ultimate cost of completing the
Project.
(d) None of the foregoing provisions will be construed
to supersede any provisions of this Agreement which address
the responsibilities of MRP and/or Investor, if any, with respect
to Cost Overruns.
4.14 Disputes. Any disputes between the Members with
respect to any matter under this Article 4 shall be settled by
binding arbitration pursuant to Exhibit B in the same manner
as Expedited Major Decisions; provided that this Section
4.14 shall not apply to matters deemed approved or deemed
disapproved under the terms of this Article 4.
ARTICLE 5
RIGHTS AND DUTIES OF MEMBERS
5.1 Other Activities of the Members.
(a) Each Member may engage or invest in any other
activity or venture or possess any interest therein independently
or with others. None of the Members or any other Person
employed by, related to or in any way Affiliated with any
Member shall have any duty or obligation to disclose or offer
to the Company or the Members, or obtain for the benefit of
the Company or the Members, any other activity or venture or
interest therein. None of the Company, the Members, the
creditors of the Company or any other Person having any
interest in the Company shall have (a) any claim, right or
cause of action against any Member or any other Person
employed by, related to or in any way Affiliated with, any
Member by reason of any direct or indirect investment or
other participation, whether active or passive, in any such
activity or venture or interest therein, or (b) any right to
any such activity or venture or interest therein or the income
or profits derived therefrom.
(b) Notwithstanding Section 5.1(a), from the
Effective Date until Stabilization, neither MRP nor any
Person which is controlled by the MRP Principals or in
which the MRP Principals have, directly or indirectly, more
than a one percent (1%) beneficial interest, shall acquire,
lease or develop, or provide leasing or development services
as a direct or indirect owner or co-owner, or on a fee for
services basis, for or with respect to any real estate of which
the principal use is (or planned to be) multifamily rental in the
Ballpark District; provided that the foregoing shall not prohibit
MRP or such other Person from acquiring, leasing or managing
a multifamily rental building in which at least ninety percent
(90%) of the individual units have previously been leased to,
or occupied by, third party tenants.
(c) Notwithstanding Section 5.1(a), from the Effective
Date until the earlier of Stabilization or March 1, 2016, neither
Investor nor any Investor Affiliate shall commence construction
on Phase 2 of the Approved PUD (as defined therein) for the
principal use of multifamily rental.
5.2 Indemnification.
(a) Except as expressly provided in this Agreement
or the Contribution Agreement to the contrary, no Member
(and no officer, director, partner, member, manager,
employee, consultant or agent of the Member; and reference
in this Section 5.2(a) to Member shall be deemed to include
each of the foregoing) shall be liable, responsible or
accountable in damages or otherwise to the Company or
to any other Member for (i)any act performed within the
scope of the authority conferred on such Member by this
Agreement except for the gross negligence or willful
misconduct of such Member or its Affiliate, (ii)such
Member's failure or refusal to perform any act, except
those required by the terms of this Agreement (taking into
account all applicable limitations herein on remedies for
failure to perform certain acts, such as
failing to fund optional additional Capital Contributions
requested by the Administrative Member, and taking
into account any applicable cure period provided for
herein), (iii) such Member's performance of, or failure
to perform, any act on the reasonable reliance on
advice of legal counsel to the Company or (iv) the
negligence, dishonesty or bad faith of any agent,
consultant or broker of the Company selected,
engaged or retained in good faith or pursuant to the
express authority. Nothing in this Section 5.2 shall
affect the liability of any Affiliate of a Member
in its performance of services for the Company, which
will be governed by the express terms of the Affiliate
Contract with such Affiliated agent, consultant or broker;
(b) To the fullest extent permitted by law, in any
threatened, pending or completed action, suit or proceeding,
each Member shall be fully protected and indemnified and
held harmless by the Company against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
proceedings, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation, reasonable
attorneys' fees, costs of investigation, fines, judgments and
amounts paid in settlement actually incurred by such Member
in connection with such action, suit or proceeding) by virtue
of its status as Member or with respect to any action or
omission taken or suffered in good faith, other than liabilities
and losses resulting from the gross negligence or willful
misconduct of such Member or its Affiliate or the material
breach or contravention of this Agreement or an Affiliate
Contract by such Member or its Affiliate (taking into
account any applicable cure period provided for herein).
The indemnification provided by this Section 5.2(b) shall
be recoverable only out of the assets of the Company,
and no Member shall have any personal liability (or
obligation to contribute capital to the Company) on
account thereof; and
(c) To the fullest extent permitted by law, each
Member shall defend and indemnify the Company and the
other Members against, and shall hold it and them harmless
from, any damage, loss, liability, or expense, including
reasonable attorneys' fees (but excluding consequential,
exemplary or punitive damages of any kind), as and when
incurred by the Company or the other Members in connection
with or resulting from such indemnifying Member's (or its
Affiliate's) gross negligence, willful misconduct or bad faith
or a material breach of this Agreement.
5.3 Compensation of Members and Their Affiliates.
(a) Except as set forth in Section 5.3(b), no Member,
nor any of their respective Affiliates, shall be entitled to
compensation from the Company in connection with any
matter that may be undertaken in connection with the fulfillment
of its duties and responsibilities hereunder.
(b) The Members and/or their Affiliates shall be
entitled to the following compensation:
(1) Development Manager shall be entitled to a
development fee in an amount equal to Two Million Eight
Hundred Seventy Four Thousand Four Hundred Eighty-
Seven and 00/100 Dollars ($2,874,487.00) (the
"Development Fee"), which will be payable as set
forth in the Development Agreement. 3
(2) If approved by the Members as a Major
Decision, Administrative Member or its Affiliate may
serve as the property manager for the Property at market
rates of compensation.
(3) During any time in which Administrative
Member or its Affiliate is not serving as property manager
for the Property, the Company shall pay Administrative Member
an asset management fee in the amount of 0.25% of the gross
operating revenues actually received by the Company in
respect of the operation of the Property (with such gross
operating revenues to be as defined in the property
management agreement for the Property).
5.4 Company Financing and Guaranties.
(a) It is the intention of the Members (i) to seek
Construction Financing in the Target Financing Amount in
accordance with Section 4.4(a), (ii) to seek a permanent
loan in an amount approved by the Members which is
approximately 70% of the fair market value of the Project
after Stabilization, (iii) to refinance such permanent loan,
and any refinancing thereof, from time to time as necessary
or appropriate, and (iv) to provide in the Loan Documents
for all Company Financings that the Lender recognize all
rights of the Members to Transfer their Interests as and to
the extent provided for under this Agreement. Any such
Company Financing shall be obtained from one or more
unrelated third parties, including banks, financial institutions,
CMBS lending sources, and other sources of commercial
financing, on market terms and conditions (including
market-based loan-to-value/loan-to-budget ratio requirements,
term to maturity, amortization periods and applicable interest
rates, fees and other expenses payable thereunder). The
terms and conditions of any Company Financing and all
documents to be executed and delivered in connection with
any Company Financing shall be subject to the prior written
approval of both MRP and Investor, which shall not be
unreasonably withheld, conditioned or delayed.
(b) The MRP Guarantors shall provide any
Guaranties required by the lender in connection with any
Company Financing, provided that the form and substance of
each such Guaranty shall be consistent with generally prevailing
market requirements or otherwise approved by MRP and the
MRP Guarantors, in their sole discretion. In no event (i) shall
the MRP Guarantors be required to provide a payment or
repayment guaranty, or any guaranty other than the Guaranties
described above in connection with the Company Financing,
or (ii) shall Investor or any Affiliate of Investor be required to
provide any Guaranty, or payment or repayment guaranty, in
connection with any Company Financing.
(c) If any MRP Guarantor or other guarantor of Company
Financing executes a Guaranty (including, to the extent applicable,
and at their discretion, a payment or repayment guaranty), then
both Members, and all such Guarantors, will, simultaneously with
the execution and delivery of such Guaranties, enter into a
Guaranty Cost Sharing Agreement in the form attached as
Exhibit F, hereto, which provides for certain contribution and
indemnification rights and obligations with respect to any liabilities
which might arise in favor of the Lender under any of the
Guaranties (the "Guaranty Cost Sharing Agreement"). The terms
of the Guaranty Cost Sharing Agreement, which are incorporated
herein by this reference, shall govern all rights of contribution and
indemnity between and among the Members, the MRP
Guarantors and the Company arising in connection with the
Guaranties, and any amounts paid or payable pursuant thereto or
in defending the enforcement thereof.
5.5 Dealing with Members.
(a) Subject to any approval requirements associated
therewith under Section 3.2, and any provisions of this
Agreement concerning the enforcement of Affiliate Contracts
against Member Affiliates, the fact that a Member, Member
Affiliate, or any officer, director, employee, partner, member,
manager, consultant or agent of a Member or Member Affiliate,
is directly or indirectly interested in or connected with any Person
employed by the Company to render or perform a service, or
from or to whom the Company may buy or sell any property
or have other business dealings, shall not prohibit the Company
from employing such Person or from dealing with him or it to
procure necessary services that would otherwise be required
from third party providers, on customary, arm's length equivalent
terms and at competitive rates of compensation, and neither the
Company nor any of the other Members shall have any right in
or to any income or profits derived therefrom by reason of this
Agreement. If the non-affiliated Member approves any business
dealing between the Company or a Subsidiary and a Member or
Member Affiliate, such business dealing shall be conclusively
deemed to meet the standard of the preceding sentence.
(b) The Development Agreement shall be terminable by
the Non-Administrative Member, on behalf of the Company,
without any penalty or fee, upon (a) the Sale of the Property,
(b) any material breach or default on the part of Development
Manager under the Development Agreement that is not cured
after written notice from the Company or Investor and the
expiration of the applicable cure periods set forth therein, and
(c) following a Withdrawal Event or Manager Removal Event.
The Non-Administrative Member shall have the right to exercise
all rights and remedies of the Company under the Development
Agreement with respect to any breach or default on the part of
Development Manager thereunder.
5.6 Use of Company Property. No Member shall make
use of the funds or property of the Company, or assign its
rights to specific Company property, other than for the business
or benefit of the Company.
5.7 Designation of Tax Matters Member. The Tax Matters
Member shall act as the "tax matters partner" of the Company
within the meaning of Section6231(a)(7) of the Code and
in any similar capacity under applicable state or local tax law.
All reasonable out-of-pocket expenses incurred by the Tax
Matters Member while acting in such capacity shall be paid
or reimbursed by the Company.
5.8 Provisions Relating to Cost Overruns.
(a) Funding. The Members anticipate that through
advances made under the Construction Financing, and the
Mandatory Capital Contributions required hereunder, there
will be sufficient funds to pay all Total Project Costs. To this
end, the Members agree that they shall, to the fullest extent
permitted under the Construction Loan Documents, but subject
to Section 5.8(b), seek approval by the Construction Lender
to apply amounts in the Construction Financing's contingency
line item, plus any cost savings realized under other line items
within the approved budget under such Construction Financing
(the "Loan Budget"), to pay Cost Overruns or other
Development Costs. Nevertheless, if at any time or from time
to time after all Mandatory Capital Contributions have been
fully funded hereunder, the Company requires additional funds
to pay Development Costs, then subject to Section 5.8(b),
either Member will have the right to cause the Company to
issue a Capital Call for Additional Capital Contributions to
the Members pursuant to Section 7.2.
(b) Exception. Notwithstanding Section 5.8(a) to the
contrary, in the event that there are Cost Overruns attributable
to the gross negligence or willful misconduct of MRP,
Development Manager or another MRP Affiliate, then MRP
shall advance the amount required to pay such Cost Overrun
(in which event the amount so advanced will not be credited
as an Additional Capital Contribution by MRP to the Company).
(c) Additional Provisions. In any instance in which the
Members approve a change order, a Budget amendment which
involves an increase in scope or other Budget increase that
requires funding in excess of what it is available under the
Loan, or a contract or lease which involves expenditures in
excess of those provided for in the Final Development Budget
or, if applicable, other applicable Budget hereunder, then (i)
such increase in Development Costs or other costs and
expenses shall not constitute a Cost Overrun within the
meaning of this Agreement (and instead, a modification to
the applicable Budget will automatically be deemed to have
taken effect upon such approval having been given), and
(ii) such approval by the Members shall be deemed to
constitute a covenant by each Member to contribute an
Additional Capital Contribution pursuant to Section 7.2
to pay its share of such increase.
ARTICLE 6
BOOKS AND RECORDS; ANNUAL REPORTS
6.1 Books of Account. At all times during the continuance
of the Company, the Administrative Member shall keep or cause
to be kept true and complete books of account in which shall be
entered fully and accurately each transaction of the Company
and any Subsidiary. Such books shall be kept on the basis of
the Fiscal Year in accordance with generally accepted
accounting principles as adopted by Investor's parent company
and as to which Administrative Member is given reasonable
advance notice.
6.2 Availability of Books and Records. All of the books
of account referred to in Section 6.1, together with an executed
copy of this Agreement and the Certificate, and any amendments
thereto, and all other books and records of the Company shall
be open to the inspection, examination and copying by any
Members or their representatives during normal business hours.
6.3 Financial Reports.
(a) For each Fiscal Year, the Administrative Member
shall send to each Person who was a Member at any time
during such Fiscal Year, within ninety (90) days after the end
of such Fiscal Year, annual financial statements of the Company
including a balance sheet as of the end of such Fiscal Year and
statements of profit and loss, changes in financial position, and
distributions to the Members for that Fiscal Year, all as prepared
in accordance with income tax principles, and a statement
showing allocations to the Members of taxable income, gains,
losses, deductions and credits; and at the option of Investor,
such annual financial statements shall be audited at the
Company's expense by the Company's independent public
accountants, which shall be Hancock & Askew LLP, or
such other accounting firm as may be approved by Investor
(provided that, if Investor requests such audit, then the 90-day
period provided for above shall automatically be extended as
necessary for the auditing firm to complete the audit, provided
MRP delivers an unaudited annual financial statement and
backup for the audit to the auditing firm within the original
90-day period).
(b) For each month, the Administrative Member shall
send to each Person who was a Member at any time during
such month, within thirty (30) days after the end of such month,
monthly financial statements of the Company, including a balance
sheet as of the end of the month, and statements of profit and loss,
changes in financial position, and distributions to the Members
for that month, all prepared in accordance with an accounting
method approved by Investor.
(c) For each Fiscal Year, the Administrative Member shall
send to each Person who was a Member at any time during such
Fiscal year a completed IRS Schedule K1, as soon as practicable
and in any event not later than sixty (60) days after the end of such
Fiscal Year, with time being of the essence with respect thereto.
(d) From time to time upon request of any Member, the
Administrative Member shall provide to such Member such other,
existing information concerning the Company in Administrative
Member's possession, custody or control, as may reasonably be
requested by any Member, including such information as is
necessary for the preparation of each Member's federal, state a
nd local income or other tax returns.
(e) For each month from the Effective Date until
Stabilization, the
Administrative Member shall send to each Person who was a
Member during such month on or before the fifteenth (15th)
day of each month, a report showing all Development Costs
which have been paid by MRP or any MRP Affiliate (and
credited as part of MRP's Capital Contribution to the
Company), or by the Company, through the end of the
preceding month.
6.4 Budgets.
(a) Section 4.6 shall govern the obligations and
responsibilities of MRP and Investor with respect to a
budget for the Property prior to commencement of Vertical
Construction and the approval of the Final Development
Budget in connection therewith.
(b) On or before the date that is six (6) months prior
to the projected date for substantial completion of the
Improvements, and on or before October 15 of each year
thereafter, the Administrative Member shall prepare and
submit for the next calendar year (or for the remainder of
the calendar year following substantial completion in the
case of the first year) in a form reasonably acceptable to
the Non-Administrative Member, a budget for the Project
setting forth (i) proposed operating and capital expenditures
to be made in such year with respect to the Project, (ii) the
estimated receipts, expenditures, escrow deposits and
Reserves for each year on a monthly basis, showing the
expected sources of funds and (iii) the estimated Distributable
Cash attributable to such year and the respective estimated
amounts thereof that are expected to be distributed to the
Members pursuant to Section 9.1. The Members shall use
their good faith efforts to reach agreement on the final form
of the budget no later than 60 days after the submission of
the proposed budget to the Members by the Administrative
Member, and upon such approval by the Members, which
approval shall not be unreasonably withheld, conditioned or
delayed, such budget shall be the "Operating Budget" for the
Company with respect to the Project for the period covered
thereby unless expressly amended in accordance with the terms
of this Section 6.4. Until such time as an Operating Budget
shall be approved by the Members for a particular year, the
most recent Operating Budget or the Final Development
Budget, as applicable, (prorated, if needed, to reflect a full
calendar year) shall serve as the Operating Budget for such
calendar year provided that (i) any nonrecurring expenditure
in such prior Operating Budget or the Final Development
Budget, as applicable, shall be excluded, and (ii) non-controllable
expenses (such as taxes, insurance premiums, utility consumption
charges, and the like) shall be deemed included in the amounts
actually expended for the applicable period. From time to time,
the Administrative Member shall propose an update to the then
current Operating Budget or the Final Development Budget, as
applicable, at any time when the Administrative Member
becomes aware of any facts or circumstances that make the
Operating Budget or the Final Development Budget, as
applicable, incorrect, incomplete or outdated, and if and
when the Members unanimously approve any revision to the
Operating Budget or the Final Development Budget, as
applicable, which approval shall not be unreasonably
withheld, conditioned or delayed, then such approved
revised development budget shall become the
"Operating Budget" or the Final Development Budget,
as applicable, for purposes of this Agreement. Upon
adopting any Operating Budget or the Final Development
Budget, as applicable, the Administrative Member will use
commercially reasonable and diligent efforts to
cause the Company to operate within the limits of that
Operating Budget or the Final Development Budget, as
applicable (but subject, in all events, to the provisions of
Section 3.2(j) and Section 6.4(d)).
(c) Administrative Member shall (i) use commercially
reasonable efforts to avoid causing the actual costs of
operation and management of the Project to exceed the
applicable approved Operating Budget (or the Final
Development Budget, as applicable) either in total or in
any one accounting category, and (ii) subject to the
exceptions to pre-approval stated in the proviso within
Section 3.2(j), secure the prior written approval of the
other Member before causing the Company to expend,
obligating the Company for or approving any Company
expenditure in connection with the operation and management
of the Project that would result in a line item or category in the
Operating Budget (or the Final Development Budget, as
applicable) being exceeded by the greater of (i) $10,000,
or (ii) five percent (5%) of such line item or category.
(d) Administrative Member shall use commercially
reasonable efforts to avoid causing Development Costs to
exceed the Total Project Costs provided for in the Final
Development Budget (either in total or in any line item of
the Final Development Budget), and shall secure the prior
written approval of the other Member before causing the
Company to expend, obligating the Company for or
approving any Company expenditure in connection with
Vertical Construction that would result in (i) a line item or
category in the Final Development Budget being exceeded
by: (A)$10,000 in any one instance, and (B) the greater
of (1) $25,000 or (2) five percent (5%) of such line item
or category, in the aggregate, or (ii)such expenditure or
proposed expenditure, together with all other expenditures
or reasonably anticipated proposed expenditures which
have not otherwise been Approved, in the aggregate,
exceeding the aggregate applicable to the Final
Development Budget by more than $250,000. In
connection therewith, Administrative Member shall have
the right, subject to Investor approval (not to be
unreasonably withheld, conditioned or delayed) (i)
to transfer realized cost savings achieved in any one
line item of the Final Development Budget to any other
line item as long as the line item where the savings have
been achieved has been closed out, (ii) to transfer amounts
available from the contingency line item in the Final
Development Budget to another line item in the Final
Development Budget having excess costs, and (iii) to
implement other line item reallocations within the Final
Development Budget in order to avoid Cost Overruns.
Notwithstanding the foregoing provisions of this Section
6.4(d), if any provision of the loan documents evidencing
any Company Financing (including the Construction
Financing) is more restrictive than the foregoing provisions,
the provisions contained in the allocable loan documents
shall govern.
(e) In connection with any capital improvements (but
not capital repairs or replacements, which will be accounted
for in the Company's annual Operating Budget) to be made
as part of the Project, whether as part of a general renovation
program, a future development opportunity within the Project,
the expansion of any existing building or improvement, any
major leasehold construction and/or any other capital
improvement project, in each case involving a total cost in
excess of $50,000.00, the Administrative Member shall
prepare a proposed capital budget for the same (with the
level of detail being commensurate with the scope and
estimated cost of the Project, and the degree of budgeting
information actually available to the Administrative Member
at the time such budget is being prepared and submitted, to
be updated and refined as more accurate information becomes
available) (a "Capital Budget"), and shall submit such Capital
Budget to Investor for approval (which will not be unreasonably
withheld, conditioned or delayed). Once approved, such Capital
Budget will be an approved Budget within the meaning of this
Agreement (and Administrative Member will be authorized, subject
to any other Major Decision requirements applicable to the
pecific capital improvements, lease or other transaction(s) giving
rise to the preparation of such Capital Budget, to incur and pay
the costs provided for in such Capital Budget).
6.5 Accounting Expenses. All reasonable out of pocket
expenses payable to Persons who are not Members, Member
Affiliates and/or employees of Members or Member Affiliates, in
connection with the keeping of the books and records of the Company
and the preparation of audited or unaudited financial statements and
federal and local tax and information returns required to implement the
provisions of this Agreement, or required by any Governmental
Authority with jurisdiction over the Company, shall be borne by the
Company as an ordinary expense of its business (and paid by the
Company to the applicable Person(s) within a reasonable time period
after written demand or request).
6.6 Company Bank Accounts. The Administrative Member shall
arrange to maintain the Company's cash deposits in one or more
segregated accounts held for the Company's business, which accounts,
to the extent reasonably practicable, shall be interest bearing, and which
accounts shall only be at such bank or other depositary institution as may
be approved by the Non Administrative Member in advance. If required
by the Non Administrative Member, each bank account maintained on
behalf of the Company shall require that a representative of Investor has
signature authority.
ARTICLE 7
CAPITAL CONTRIBUTIONS
7.1 Initial Capital Contributions. The Members confirm that on the
Effective Date, the Members have made the following contributions to the
Company (collectively, "Initial Capital Contributions", which term shall
include any other capital contributions which are deemed to constitute
Initial Capital Contributions under the express provisions of this Agreement):
(a) Investor has contributed and/or been credited with the
contribution of (i) fee simple title to the Land with an agreed gross fair
market value, and initial Book Value as of the Effective Date, of
$__________ ("Contributed Land"),4 plus (ii) the sum of $__________,
representing Development Costs advanced prior to the Effective Date by
Investor for the benefit of the Company (which amount has been mutually
approved by the Members) plus (iii) the
amount of $_________, representing proration amounts credited to
Investor under the Contribution Agreement.
(b) MRP has contributed and/or been credited with the
contribution of (i) an amount equal to $___________, representing
Development Costs advanced prior to the Effective Date by MRP (which
amount has been mutually approved by the Members), plus (ii) the amount
of $_________, representing proration amounts credited to MRP under
the Contribution Agreement.
(c) In addition to the Initial Capital Contributions credited to
Investor and MRP pursuant to Sections 7.1(a) and 7.1(b), but as part of
the obligation to make an Initial Capital Contribution to the Company,
MRP shall advance 100% of the sums required to pay Development Costs,
operating expenses, capital expenditures, debt service payments, or any
other additional cash needs associated with the Project that are encompassed
within a Budget, or are otherwise required or permitted pursuant to this
Agreement, until such time as the aggregate amount of Initial Capital
Contributions credited to MRP equals $4,000,000.00. Such advances
shall be treated as part of MRP's Initial Capital Contribution hereunder as
and when made.
(d) In addition to the Initial Capital Contributions credited to
Investor and MRP pursuant to Sections 7.1(a) and 7.1(b), but as part of
the obligation to make an Initial Capital Contribution to the Company, after
MRP shall have made its Initial Capital Contribution pursuant to Section
7.1(c), if Investor and/or MRP shall have elected pursuant to Section
4.8(b) to advance any Projected Additional Capital Contributions, Investor
and/or MRP, as applicable, shall advance in accordance with Section
4.8(b) 100% of the sums required to pay Development Costs, operating
expenses, capital expenditures, debt service payments, or any other
additional cash needs associated with the Project that are encompassed
within a Budget, or are otherwise required or permitted pursuant to this
Agreement, until such time as the aggregate amount of Initial Capital
Contributions credited to Investor and/or MRP pursuant to this Section
7.1(d) equals the Projected Additional Capital Contributions which
Investor and/or MRP has committed to advance pursuant to Section
4.8(b). Such advances shall be treated as part of the Initial Capital
Contribution of Investor or MRP hereunder as and when made. In
the case of advances by Investor, such amounts shall be advanced
by Investor to the Company in accordance with the notice and time
periods provided in Section 7.2, mutatis mutandis. For clarity, neither
Investor nor MRP shall have any obligation to contribute Projected
Additional Capital Contributions pursuant to this Section 7.1(d)
unless and to the extent it shall have elected in writing in accordance
with Section 4.8(b) to contribute the same.
(e) The amounts required to be contributed on an ongoing
basis by MRP pursuant to Section 7.1(c) and by Investor and/or
MRP pursuant to Section 7.1(d) shall constitute "Mandatory Capital
Contributions". In addition to any other express remedy provided for
herein, both the Company and the other Member shall have the right
to bring a legal action against MRP or Investor, as applicable (the
"Defaulting Member") to recover the unfunded amount of any
Mandatory Capital Contributions, plus interest thereon at the
Applicable Rate, and costs of collection, including reasonable
attorneys' fees and court costs. If the unfunded
amount of a Mandatory Capital Contribution was previously
funded by the other Member as a Special Capital Contribution or
Priority Loan pursuant to Section 7.3, then any net amount recovered
by the Company or the other Member in a direct legal action against
the Defaulting Member (after reimbursement of costs of collection
and reasonable attorneys' fees incurred by the Company of other
Member in such action) shall be paid over to Member(s) which
provided such Special Capital Contribution or Priority Loan on
behalf of the Defaulting Member, in full or partial satisfaction thereof
(as applicable).
7.2 Additional Capital Contributions. Subject to the limitations
of this Section7.2, after MRP and Investor shall have advanced all of
its Mandatory Capital Contributions, at such times as the Company
requires additional cash to pay Development Costs, operating expenses,
capital expenditures, debt service payments, or any other additional
cash needs associated with the Project that are encompassed within
a Budget, or are otherwise required or permitted pursuant to this
Agreement, either Member may notify the other Member in writing
of the amount of the additional funds so required and the date (not
earlier than ten (10) Business Days following the date of such notice,
unless the amount in question is being requested on a more expedited
basis in order to pay amounts needed to avoid defaulting under a
Company Financing, Loan Document, Lease or other contractual
obligation, or in order for the Company to come into compliance with,
or cure the Company's violation of, any Legal Requirements, or
otherwise to avoid the imminent potential of damage or injury to persons
or property, referred to hereafter as an "Emergency Capital Call", in
which event such ten (10) Business Day period will be reduced to five
(5) Business Days ) on which such funds are due and payable to the
Company (each such notice pursuant to this Section 7.2, a "Capital Call").
On or before the date set forth in a Capital Call, each Member shall
advance to the Company its proportionate share (based on its
Percentage Interest) of the additional funds so required, as a Capital
Contribution (each, an "Additional Capital Contribution"). Any
Member may deliver its Capital Contribution in escrow or via a
similar method so that the Company will receive such Capital
Contribution only if the other Member fully funds its corresponding
required Capital Contribution.
7.3 Failure to Fund Mandatory Capital and Additional Capital.
(a) If any Member shall fail timely to make a Mandatory
Capital Contribution or an Additional Capital Contribution pursuant to
Section 7.1(c), Section 7.1(d) or Section 7.2 (any such Member is
hereinafter referred to as a "Non Funding Member"), then in addition
to the remedy provided for in Section 7.1(e), if applicable, the
Administrative Member (or at its option, the Non-Administrative
Member) shall immediately give notice of such failure to all other
Members, including the amount not funded by the Non Funding
Member (such amount is hereinafter referred to as the "Failed Funding").
Within ten (10) Business Days (or five (5) Business Days, for an
Emergency Capital Call) after receiving notice of such failure, the
Member that is not in default with respect to such Capital Call
("Funding Member") may, in its sole and absolute discretion,
(i)require the Company to repay all or part of the Funding
Member's corresponding Additional Capital Contribution that
was made in accordance with Section7.2 (together with a return
thereon calculated at the Applicable Rate), or (ii)advance to
the Company an amount equal to all, but not less than all, of
such Failed Funding. If the Funding Member fails, within such
ten (10) (or, if applicable, five (5)) Business Day period, to
advance to the Company an amount equal to the Failed
Funding, then it shall be deemed to have elected to proceed
under clause (i) of the preceding sentence. If the Funding
Member elects to proceed under such clause (i) and if, for
any reason, the Funding Member's corresponding Additional
Capital Contribution is not returned on the due date as set
forth in the applicable Capital Call (unless the failure to return
such Additional Capital Contribution was due to the Funding
Member's failure as Administrative Member, or as sole Member
with check-signing authority, to cause the Company to make
such payment in a timely manner), then such corresponding
Additional Capital Contribution shall be treated as a loan
from the Funding Member to the Company, made on such
due date, and earning interest at the Applicable Rate until
paid in full, and the amount of such Additional Capital
Contribution, including interest, shall be fully repaid prior to
(i) any distributions to Members by the Company or (ii) and
fees being paid to Members or their Affiliates pursuant to
Section 5.3. The "Applicable Rate" means twenty five percent
(25%) per annum, compounded monthly, but not more than
the maximum amount allowable under applicable law.
(b) If any Funding Member timely proceeds under
clause (ii) of Section 7.3(a), then the sum of the Funding
Member's corresponding Additional Capital Contribution
(if applicable) and the amount of the Failed Funding, in the
aggregate, shall, at the option of the Funding Member, be treated
as either (i) a loan from the Funding Member to the Company
("Priority Loan"), which shall be repaid, with interest thereon,
as described in Section 7.3(c), or (ii) a "Special Capital
Contribution", which shall be treated as described in Section
7.3(d).
(c) Priority Loans shall bear interest from time to
time at a rate per annum equal to twenty-five percent (25%)
per annum, compounded monthly, but not more than the
maximum amount allowable under applicable law. Accrued
interest on all Priority Loans shall be paid monthly from
Distributable Cash (pro rata in proportion to the amount of
interest accrued if there is more than one Member with
Priority Loans) prior to the any distribution of Distributable
Cash to the Members pursuant to Section 9.1 or Section
11.3(c). If after the payment of such interest there remains
any Distributable Cash, then the principal on all Priority
Loans shall be paid monthly from the remaining
Distributable Cash (pro rata in proportion to the amount
of interest accrued if there is more than one Member with
Priority Loans) prior to the any distribution to the Members
pursuant to Section 9.1 or Section11.3(c).
(d) If a Funding Member elects to treat the funding as
a Special Capital Contribution, then effective on the date of
such Special Capital Contribution (which shall be the date of
the Funding Member's written notice of election to the Non
Funding Member pursuant to Section7.3(b)), and
notwithstanding anything to the contrary in this Agreement:
(1) the Percentage Interest of the Funding Member
shall be increased (but not above 100%) in accordance with
the following dilution formula:
FMPI = (FMCC + (FMSCC*2.0)) / FMCC + FMSCC + NFMCC
where:
FMPI is the Funding Member's Percentage Interest
after such date;
FMCC is the total Capital Contributions (in cash or agreed Book
Value) that have been made on or before such date by the Funding
Member pursuant to Section 7.1 or 7.2 (but excluding Special
Capital Contributions);
FMSCC is the total Special Capital Contributions that have been
made on or before such date by the Funding Member; and
NFMCC is the total Capital Contributions (in cash or agreed
Book Value) that have been made on or before such date by
the Non Funding Member pursuant to Section 7.1 or 7.2
(but excluding Special Capital Contributions);
(2) the Percentage Interest of the Non Funding
Member shall be reduced to equal 100% minus the Percentage
Interest of the Funding Member.
7.4 Capital of the Company. Except as otherwise expressly
provided for in this Agreement, no Member shall be entitled to
withdraw or receive any interest or other return on, or return of, all
or any part of its Capital Contribution, or to receive any Company
property (other than cash) in return for its Capital Contribution. No
Member shall be entitled to make a Capital Contribution to the
Company except as expressly authorized by this Agreement.
7.5 Limited Liability of Members. All debts and obligations of the
Company shall be paid or discharged solely with the assets of the
Company and none of the Members shall be obligated to pay or
discharge such debts or obligations except to the extent required by
applicable law. For the avoidance of doubt, no Member shall be
liable for the return of the Capital Contribution of any other Member.
ARTICLE 8
CAPITAL ACCOUNTS, PROFITS
AND LOSSES AND ALLOCATIONS
8.1 Capital Accounts.
(a) The Company shall maintain a Capital Account for each
Member in accordance with federal income tax accounting principles.
Each Member's Capital Account shall be credited as of the Effective
Date with an amount equal to its Initial Capital Contribution(s) (in
cash or agreed Book Value) pursuant to Section 7.1(a) and (b).
(b) The Capital Account of each Member shall be increased
by (i) the amount of any cash and the agreed Book Value, as determined
by the Members, of any property (net of liabilities encumbering such
property) as of the date of contribution contributed as a Capital
Contribution to the capital of the Company by such Member after the
Effective Date and (ii) the amount of any income, gain and Profit
allocated to such Member pursuant to this Agreement. The Capital
Account of each Member shall be decreased by (i) the amount of any
Loss and items of loss or deduction allocated to such Member and (ii)
the amount of distributions to such Member. In all respects, the
Member's Capital Accounts shall be determined in accordance with the
detailed capital accounting rules set forth in Treasury Regulations
Section 1.7041(b)(2)(iv) and shall be adjusted upon the occurrence
of certain events as provided in Treasury Regulations
Section 1.7041(b)(2)(iv)(f).
(c) Immediately after the Initial Capital Contributions pursuant to
Section7.1(a) and (b) on the Effective Date, the Members' Capital
Accounts will be in the ratio of __% for MRP and __% for Investor.5
(d) A transferee of all (or a portion) of an Interest shall
succeed to the Capital Account (or portion of the Capital Account)
attributable to the transferred Interest.
(e) If any Member has a deficit balance in its Capital Account at
any time, including upon liquidation of the Company, such Member shall
have no obligation to make any contribution to the capital of the Company
with respect to such deficit, and such deficit shall not be considered a debt
owed to the Company or to any other Person for any purpose whatsoever.
8.2 Profits and Losses.
(a) As used in this Agreement, "Profit" and "Loss" shall mean, for
each Fiscal Year or other period, an amount equal to the Company's taxable
income or loss for such Fiscal Year or period, determined in accordance with
Section 703(a) of the Code (for this purpose, all items of income, gain, loss
or deduction required to be stated separately pursuant to Section 703(a)(1)
of the Code shall be included in taxable income or loss), with the following
adjustments:
(1) Any income of the Company that is exempt from federal income
tax and not otherwise taken into account in computing Profit or Loss shall
be added to such taxable income or loss;
(2) Any expenditure of the Company described in Section
705(a)(2)(B) of the Code or treated as a Section 705(a)(2)(B) expenditure
pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i) and not
otherwise taken into account in computing Profit or Loss shall be subtracted
from such taxable income or loss;
(3) In the event the Book Value of any Company asset is adjusted
pursuant to the definition of Book Value in Article 1, the amount of such
adjustment shall be taken into account as gain or loss from the disposition
of such asset for purposes of
computing Profit or Loss for the Fiscal Year in which such adjustment occurs;
(4) Gain or loss resulting from any disposition of property with
respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the Book Value of the property disposed
of, notwithstanding that the adjusted tax basis of such property differs from
its Book Value;
(5) In lieu of the depreciation, amortization and other
cost recovery deductions taken into account in computing
federal taxable income or loss, there shall be taken into account
Depreciation for such Fiscal Year or other period; and
(6) Notwithstanding any other provision, any items which are
specially allocated pursuant to Section 8.2(e) hereof shall not be taken into
account in computing Profit or Loss. Nevertheless, such items shall be taken
into account in adjusting Capital Accounts pursuant to Section 8.1 hereof.
(b) Pursuant to Treasury Regulations Section 1.1245-1(e), to the
extent the Company recognizes gain as a result of a sale, exchange or other
disposition of Company assets which is taxable as ordinary income under
Code Section 1245 or Code Section 1250, such ordinary income shall be
allocated among the Members in the same proportion as the depreciation
giving rise to such ordinary income was allocable among the Members. In
no event, however, shall any Member be allocated ordinary income
hereunder in excess of the amount of gain allocated to the Member under
this Agreement. Any ordinary income that is not allocated to a Member
due to the gain limitation described in the previous sentence shall be
allocated among those Members whose shares of total gain on the sale,
exchange or other disposition of the property exceed their share of
depreciation from the Company assets, in proportion to their relative
shares of the total allocable gain.
(c) If any Member transfers all or any part of its Interest during
any Fiscal Year or its Interest is increased or decreased, items of income,
gain, loss, deduction, Profit and Loss attributable to such Interest for
such Fiscal Year shall be apportioned between the transferor and
transferee or computed as to such Members, as the case may be,
using any equitable method selected by the Administrative Member
and approved by all Members that is permissible under the Code
and applicable regulations thereunder.
(d) For each Fiscal Year of the Company, after adjusting each
Member's Capital Account for all Capital Contributions and distributions
during such Fiscal Year and all special allocations pursuant to
Section8.2(e) with respect to such Fiscal Year, all Profit and Loss shall
be allocated to the Members' Capital Accounts in a manner such that,
as of the end of such Fiscal Year, the Capital Account of each Member
(which may be either a positive or negative balance) shall equal, as
nearly as possible, (a)the amount that would be distributed to such
Member in a Hypothetical Liquidation at the end of the last day of
such Fiscal Year, minus (b) the sum of (i)such Member;s share of
Partnership Minimum Gain (as determined according to Treasury
Regulations Sections1.704-2(d) and (g)(3)) and Partner
Nonrecourse Debt Minimum
Gain (as determined according to Treasury Regulations Section
1.704-2(i)) and (ii) the amount, if any, such Member is obligated
to contribute to the capital of the Company as of the last day of
such Fiscal Year, provided, however, that no Loss may be
allocated to a Member to the extent such an allocation would result
in an Adjusted Capital Account Deficit for such Member.
(e) Notwithstanding any other provision of this Agreement:
(i) Nonrecourse Deductions. Nonrecourse deductions (as
defined in Treasury Regulations Section 1.704-2(b)(1)) for each
Fiscal Year shall be allocated to the Members in the ratio of their
Percentage Interests;
(ii) Minimum Gain Chargeback. If there is a net decrease in
Partnership Minimum Gain or in Partner Nonrecourse Debt Minimum
Gain during a Company Fiscal Year, the Members shall be allocated
items of Company income and gain in accordance with Treasury
Regulations Sections 1.704-2(f) and 1.704-2(i)(4);
(iii) Limitation on Loss Allocations and Qualified Income Offset.
A Member shall not be allocated items of loss or deduction to the extent
such an allocation would cause or increase a deficit Capital Account
balance for such Member as of the close of any taxable year in excess
of the amount of such balance the Member is obligated or deemed
obligated to restore pursuant to Treasury Regulations Section1.704 1
(b)(2)(ii)(c), 1.704 2(g)(1) or 1.704 2(i)(5). In determining the Capital
Account balance of a Member for this purpose, adjustments, allocations
and distributions described in Treasury Regulations Section1.704 1(b)
(2)(ii)(d)(4), (5) and (6) shall be taken into account. Any items of loss
and deduction not allocated to a Member under this Section7.2(e)(iii)
shall be allocated first, to the remaining Members with positive Capital
Account balances (as adjusted in accordance with the preceding
sentence and after adding back each Member's share of company
minimum gain and partner nonrecourse debt minimum gain determined
pursuant to Treasury Regulations Sections1.704 2(g)(1) and 1.704 2(i)(5)).
in proportion to, and to the extent of, such positive Capital Account
balances and thereafter, as provided in applicable Treasury Regulations.
If a Member unexpectedly receives an adjustment, allocation or distribution
described in Treasury Regulations Section1.704 1(b)(2)(ii)(d)(4), (5) or (6)
which results in a negative Capital Account balance in excess of any deficit
balance which the Member is obligated or deemed obligated to restore
pursuant to Treasury Regulations Section1.704 1(b)(2)(ii)(c), 1.704 2(g)(1)
or 1.704 2(i)(5), items of Company income and gain (consisting of a pro
rata portion of each item of Company income, including gross income, and
gain) shall be allocated to such Member in an amount and manner sufficient
to eliminate such excess deficit balance as quickly as possible. This
Section8.2(e)(iii) is intended to comply with the qualified income offset
requirement of Treasury Regulations Section1.704 1(b)(2)(ii)(d) and shall
be interpreted and applied consistently therewith;
(iv) Member Nonrecourse Deductions. Any partner nonrecourse
deductions (as defined in Treasury Regulations Section 1.704 2(i)(2)) for each
Fiscal
Year shall be specially allocated to the Member who bears the economic
risk of loss with respect to the partner nonrecourse debt (as defined
in Treasury Regulations Section 1.704 2(b)(4)) to which such
partner nonrecourse deductions are attributable in accordance with
Treasury Regulations Section 1.704 2(i); and
(v) Curative Allocations.
(1) Regulatory Curative Allocations. The special allocations
set forth in Sections 8.2(e)(i) through (iv) (the "Regulatory
Allocations") are intended to comply with certain requirements of
the Treasury Regulations.It is the intent of the Members that, to
the extent possible, all Regulatory Allocations shall be offset either
with other Regulatory Allocations or with special allocations
of other items of Partnership income, gain, loss, or deduction pursuant to this
Section 8.2(e)(v)(1).Therefore, notwithstanding any other provision of this
Article 8 (other than the Regulatory Allocations), the Administrative Member
shall make such offsetting special allocations of Company income, gain, loss,
or deduction in whatever manner it reasonably determines appropriate so that,
after such offsetting allocations are made, each Member's Capital Account
balance is, to the extent possible, equal to the Capital Account balance such
Member would have had if the Regulatory Allocations were not part of the
Agreement and all Partnership items were allocated pursuant to Sections
8.2(d) and (e). In applying this Section8.2(e)(v)(1), the Administrative
Member shall take into account future Regulatory Allocations under Section
8.2(e)(ii) that, although not yet made, are likely to offset other Regulatory
Allocations previously made under Sections8.2(e)(i) and (iv).
(2) Audit Adjustment Curative Allocations. In the event there is a
final administrative or judicial determination for federal income tax purposes
for any taxable year that changes the Capital Account balances of the
Members from the Capital Account balances for such taxable year as
previously computed by the Company (an "Adjustment"), then,
notwithstanding anything contained in Section 8.2(d) and (e) hereof, items
of Profit, Loss, income, gain, loss and deduction for that taxable year and,
if necessary, subsequent taxable years, shall be allocated among the
Members so that, to the extent possible, the Capital Account balances of the
Members (taking into account such Adjustment) for that taxable year, and
all subsequent taxable years, are the same as they would have been had
such Adjustment not occurred. The reallocation described in the preceding
sentence shall not be made to the extent that the Adjustment constitutes the
correction of an arithmetic or computational error.
(f) Allocations with Respect to Contributed Property; Book
Value Adjustments.
(i) Contributed Property. In accordance with Code Section704(c)
and the Treasury Regulations thereunder, income, gain, loss and deduction
(and any item thereof) with respect to any property contributed to the
Company shall, solely for tax purposes, be allocated among the Members
so as to take into account any variation at the time of contribution between
the adjusted basis of such property to the Company for federal income tax
purposes and the Book Value of the contributed property. Any allocations
required under this Section8.2(f)(i) shall be made using one of the methods
set forth in the Treasury Regulations under Code Section 704(c), as
determined by the Administrative Member and approved by the Non-
Administrative Member;
(ii) Book Value Adjustments. In the event the Book Value of any
Company property is adjusted so as to differ from its adjusted basis for
federal income tax purposes, subsequent allocations of income, gain, loss
and deduction (and any item thereof) with respect to such asset shall, in
accordance with Treasury Regulations Sections1.704-1(b)(2)(iv)(g) and
1.704-1(b)(4), take account of any variation between the adjusted basis
of such asset for federal income tax purposes and the Book Value in the
same manner as under Code Section 704(c) and the Treasury Regulations
thereunder. Any allocations required under this Section8.2(f)(i) shall be
made using one of methods set forth in the Treasury Regulations under
Code Section 704(c), as determined by the Administrative Member and
approved by the Non Administrative Member; and
(iii) Tax Allocations Only. Allocations pursuant to this
Section8.2(f) are solely for tax purposes and shall not affect, or in any
way be taken into account in computing, any Member's Capital Account
or share of Profit, Loss or other items, or distributions pursuant to any
provision of this Agreement.
ARTICLE 9
DISTRIBUTIONS OF DISTRIBUTABLE CASH
9.1 Distributions.
(a) Subject to Section 7.3(a), Section 7.3(c) and Section 9.1(b),
the Company shall pay or distribute Distributable Cash to the Members,
on such schedule as is approved by Investor (but in no event less than
quarterly if Distributable Cash is available to be distributed), as follows:
(i) First, if any one or more Members have any Unpaid Preferred
Return as of the date of such distribution, then to the Members, pro rata
in proportion to their respective Unpaid Preferred Returns, until each
Member's Unpaid Preferred Return has been reduced to zero;
(ii) Second, if any one or more Members have an Unrecovered
Capital Contribution as of the date of such distribution, then to the
Members, as a return of capital, pro rata in proportion to their
respective Unrecovered Capital Contributions, until each Member's
Unrecovered Capital Contribution has been reduced to zero;
(iii) Third, (A)eighty percent (80%) to the Members (pro rata
in proportion to their Percentage Interests) and (B)twenty percent
(20%) to MRP, until the Investor has achieved an overall IRR of
seventeen percent (17%), calculated as of the date of such distribution
and taking into account all payments and distributions through and
including such date;
(iv) Fourth, (A)seventy percent (70%) to the Members (pro
rata in proportion to their Percentage Interests) and (B)thirty percent
(30%) to MRP, until the Investor has achieved an overall IRR of twenty
percent (20%), calculated as of the date of such distribution and taking
into account all payments and distributions through and including such
date; and
(v) Thereafter, (A)sixty percent (60%) to the Members (pro
rata in proportion to their Percentage Interests) and (B)forty percent
(40%) to MRP.
(b) Notwithstanding any provision to the contrary contained in
this Agreement, the Company shall not be required to make a distribution
to a Member on account of its interest in the Company if such distribution
would violate any applicable law or the terms of any Loan Documents.
ARTICLE 10
TRANSFER OF COMPANY INTERESTS
10.1 Limitations on Transfer of Interests by Members.
(a) No Member shall engage in or permit any Transfer with respect
to its Interest unless and then only to the extent expressly permitted in this
Article10. Any purported Transfer in violation of this Article10 shall be
void, and shall not bind the Company.
(b) No Member shall, without the prior written consent of all
Members, authorize, cause or permit any Transfer with respect to its
Interest if such Transfer would cause a default under any of the Loan
Documents or other material agreement binding upon the Company or
any of its properties, provided that the Members will use all reasonable
and diligent efforts to secure as part of the terms of the Loan Documents
therefor, the agreement of the lender providing Company Financing to
recognize the rights of the Members to make any other Transfer which
is permitted by right under Section 10.1(c).
(c) Notwithstanding Section 10.1(a), but subject to Section 10.1(b):
(1) Prior to Stabilization, MRP may, without obtaining the approval
of the Company or any Member, cause or permit an indirect Transfer of its
Interest (i.e., the ownership interests within the MRP Member, but not the
Interest itself) so long as (i)the Interest remains Controlled by the MRP
Principals (and the MRP Principals at all times include both Robert Murphy
and Frederick Rothmeijer, except to the extent one, but not
both, of such individuals ceases to be an MRP Principal because of death,
disability or incapacity), (ii)not less than fifty percent (51%) of the
beneficial ownership of the Interest, including fifty-one percent (51%)
of the capital and profits of the Interest, remains owned, directly or
indirectly, by the MRP Principals, and (iii)such Transfer is consistent
with and does not violate Section10.1(b), Section 10.1(d) and the
applicable provisions of Section10.2.
(2) From and after Stabilization, MRP may, without obtaining the
approval of the Company or any Member, cause or permit an indirect
Transfer of its Interest (i.e., the ownership interests within the MRP
Member, but not the Interest itself) so long as (i)the Interest remains
Controlled by the MRP Principals (and the MRP Principals at all times
include at least one of Robert Murphy and Frederick Rothmeijer), and
(ii)such Transfer is consistent with and does not violate Section10.1(b),
Section10.1(d) and the applicable provisions of Section10.2.
(3) Prior to Stabilization, Investor may, without obtaining the
approval of the Company or any Member, cause or permit a Transfer
with respect to its Interest so long as (i)immediately after the Transfer, the
Person that owns the subject Interest is Controlled by Florida Rock and
majority owned (directly or indirectly) by Florida Rock, (ii)at all times,
only one Person directly owns the entire Interest held by Investor and any
permitted transferee of Investor, and (iii)such Transfer is consistent with
and does not violate Section10.1(b), Section10.1(d) and the applicable
provisions of Section10.2.
(4) From and after Stabilization, Investor may, without obtaining
the approval of the Company or any Member, cause or permit a Transfer
affecting its Interest so long as (i)immediately after the Transfer, the Person
that owns the subject Interest is Controlled by Florida Rock, (ii)at all times,
only one Person directly owns the entire Interest held by Investor and any
permitted transferee of Investor, and (iii)such Transfer is consistent
with and does not violate Section10.1(b), Section10.1(d) and the
applicable provisions of Section10.2.
(d) If any Transfer pursuant to this Section10.1, either
alone or when aggregated with other Transfers permitted under this
Article10, shall result in the imposition of any state or local recordation
or transfer tax or other similar tax on transfers of economic interests in
entities that own real property, then (i)the transferor and transferee
shall be jointly and severally liable for such tax, and (ii)each transferor
and transferee shall jointly and severally indemnify and hold the
Company (and the other Members) harmless from any liability for, or
arising out of, such tax.
(e) If the Company elects to sell or otherwise dispose of all or
substantially all of the Company Assets, then the Members agree to cooperate
with any structure that would facilitate such Sale or disposition in a manner
advantageous to the Company, including a Transfer of all of the Interests,
or a merger or consolidation of or with the Company, and any such transaction
may be approved by the Members with the same vote or consent as would be
required to approve a Sale or disposition of the Company Assets by the
Company under this Agreement.
10.2 General Transfer Provisions.
(a) Unless otherwise provided in a particular section of this
Article 10 the following provisions apply to any permitted Transfer
of an Interest:
(1) the "Selling Member" means the Member that is
transferring and selling its Interest;
(2) the "Purchasing Member" means the Member or
other Person that is acquiring and purchasing the Interest;
(3) the "Non-Selling Member" means, in the case of a
Sale of an Interest, the Member other than the Selling Member;
and
(4) the "Closing" means the closing of any Transfer
permitted by this Agreement.
(b) Any Transfer of a direct Interest permitted under this Article
10 shall be evidenced by an instrument of assignment in form and substance
reasonably satisfactory to the Administrative Member and Non-Administrative
Member under which the transferor transfers all rights and obligations
hereunder that are allocable to the transferred Interest, and the transferee
assumes all such rights and obligations. Without limitation, such assignment
shall also provide that the transferee of such Interest: (i)agrees to be bound
by all the terms of this Agreement applicable to the transferor with respect
to the Interest transferred; and (ii)assumes and agrees to perform and comply
with all obligations of the transferor arising from and after the time of such
Transfer. Upon compliance with all of the terms hereof, the Purchasing
Member shall be substituted as a Member in respect of such acquired
Interest and, if required by applicable law, the Administrative Member
promptly thereafter shall cause to be filed with the proper authorities an
amendment to the Certificate in order to reflect such change and take
such similar action as may be required.
(c) An executed counterpart of each document executed
pursuant to this Article10 shall be delivered to the Non Selling Member,
the Selling Member, the Purchasing Member and the Company.
(d) A permitted Transfer of an Interest or any other permitted
Transfer shall not terminate the Company. No Transfer will be permitted
if such Transfer would result in the Company being a "publicly-traded
partnership", within the meaning of the Code and the regulations thereunder,
or an entity taxable as a corporation or as an association or otherwise being
treated as a taxable entity for United States federal income tax purposes,
unless otherwise agreed to by all of the Members.
(e) It is the intent of the parties to this Agreement that the
requirements or obligations, if any, of a Member or the Company to
make any Transfer in accordance with the provisions of this Agreement,
or of a Member to refrain from making any Transfer not permitted by
this Agreement, shall be enforceable by an action for specific
performance of a contract relating to the purchase of real property or
an interest therein or by an action for injunctive relief, respectively.
(f) Any and all reasonable costs and expenses (including
reasonable attorneys' fees and disbursements) incurred by the Company
in connection with effectuating such Transfer and the admission of the
Purchaser as a Member shall be paid or caused to be paid by the Seller.
It is expressly agreed that each Member shall otherwise be responsible
for its own out-of-pocket costs and expenses relating to such Transfer.
(g) In applying and interpreting any provision of this Agreement
in which the context assumes that there are two, but not more than two,
Members in the Company, (i)MRP and any transferees of MRP (other
than Investor or its Affiliate) shall collectively be treated as a single
Member with the rights and obligations of MRP hereunder and (ii)
Investor and any transferees of Investor (other than MRP or its Affiliate)
shall collectively be treated as a single Member with the rights and
obligations of Investor hereunder. This paragraph is not intended to
permit partial transfers of Interest that are not otherwise permitted
under this Agreement.
10.3 Remedy for Impermissible Transfer. In the event that a
Member or a holder of a direct or indirect interest in such Member
shall purport to transfer its interest or part thereof in a manner not
permitted hereunder, then, without limiting any other remedies available
hereunder or at law, the other Member may, at its option, declare such
purported Transfer void pursuant to Section10.1(a).
10.4 Change in Interest. Upon any change in the relative interests
of the Members, whether by reason of the admission of a Member or
otherwise, the Members' shares of all Company items shall be
determined, except as otherwise required by law, by an interim closing
of the Company's books.
10.5 Substituted Members.
(a) Any Member that assigns all of its Interest pursuant to an
assignment or assignments permitted under this Agreement shall cease
to be a Member of the Company except that unless and until a Substituted
Member is admitted in its stead, the assigning Member shall not cease to
be a Member of the Company under the Act and shall retain the rights and
powers of a Member under the Act and hereunder. Any assignee of any
portion of the Interest of a Member that has satisfied the requirements of
Article10 shall become a Substituted Member only when (i)the
Administrative Member has entered such assignee as a Member on the
books and records of the Company, which the Administrative Member is
hereby directed to do upon satisfaction of such requirements, and (ii)
such assignee has paid all reasonable legal fees and filing costs and any
transfer taxes arising as a result of or in connection with the substitution
as a Member.
(b) Any Person who is a permitted assignee of any of the Interest
of a Member but who does not become a Substituted Member and desires
to make a further assignment of any such Interest shall be subject to all the
provisions of this Article10 to the same extent and in the same manner as
any Member desiring to make an assignment of its Interest.
10.6 Acceptance of Prior Acts. Any Person who becomes a Member,
by becoming a Member, accepts, ratifies and agrees to be bound by all
actions duly taken by the transferor, any other Member, the Company or
any other Person on behalf of any of the foregoing pursuant to the terms
and provisions of this Agreement prior to the date it became a Member
and, without limiting the generality of the foregoing, specifically
ratifies and approves all agreements and other instruments as may
have been executed and delivered on behalf of the Company prior to
said date and which are in force and effect on said date.
10.7 Required Recognition of Impermissible Transfer. If the Company is
required by a court of competent jurisdiction or applicable law to recognize
a Transfer of an Interest which is not permitted hereunder, then:
(a) the transferee with respect to such Interest shall
have only the rights of an unadmitted assignee under the Act
with respect to the transferred Interest, and shall not have the
rights of a Member unless admitted as a Member under the Act,
and any distributions with respect to such transferred Interest may
be applied (without limiting any other legal or equitable rights of
the Company) towards the satisfaction of any debts, obligations,
or liabilities for damages that the transferor or transferee of such
Interest may have to the Company; and
(b) to the maximum extent permitted by applicable
law, the Member other than the transferee shall have the right of
first refusal, but not the obligation, to acquire such transferred
Interest on the same terms and conditions as the purported
transferee, and such Member shall have at least thirty (30) days
within which to exercise such right of first refusal, which thirty
(30) day period shall begin on the later of (i)the date that the
Company is required by a court of competent jurisdiction to
recognize such Transfer and (ii)the date on which such
Member has received notice of all of the terms and conditions
under which the purported transferee has acquired or intends
to acquire such Interest.
10.8 Sale Or Conversion Upon Stabilization.
(a) The Administrative Member shall provide
written notice to Investor promptly upon Stabilization
(and, prior to Stabilization, shall update Investor regularly
with the projected date of Stabilization). Upon receipt
of such notice, Investor shall have one (1) year within which
to elect, by written notice to MRP, either (i)to cause the
Company to sell the Property or (ii)to cause a Conversion.
If Investor does not make an election within such one (1)
year period, or if Investor elects to cause the Company to
sell the Property and such Sale is not consummated within
18 months after Stabilization (provided that such 18 month
period shall be automatically extended so long as the
Company is thereafter actively marketing the Property for
Sale), then in either such event, Investor shall be deemed
to have elected to cause a Conversion.
(b) If Investor elects to cause the Company to
sell the Property, then the Members shall cooperate in
marketing the Property for Sale to the highest bidder,
promptly but in an orderly and diligent manner, and in
contracting for and consummating such Sale, if applicable.
(c) If Investor elects (or is deemed to elect) to
cause a Conversion, then (and only then) the following
procedure shall apply (collectively, the "Conversion"):
(1) Within thirty (30) days after Investor's
election (or deemed election) to cause a Conversion, MRP
shall provide a notice ("Conversion Notice") to Investor
stating MRP's estimate of the gross fair market value of the
Property as of the date of such Conversion Notice.
(2) Within thirty (30) days after Investor's
receipt of the Conversion Notice, Investor shall deliver a
written notice ("Conversion Election Notice") to MRP
stating either (i)that Investor agrees to the gross fair
market value of the Property set forth in the Conversion
Notice, in which case such value shall be the "Project
Value" for purposes of this Section10.8 (c), or (2) that
Investor disagrees with the gross fair market value of the
Property set forth in the Conversion Notice, in which
case Investor shall state its estimate of the gross fair
market value of the Property as of the date of the
Conversion Notice; if Investor fails to give such notice
within such thirty (30) day period, then it shall be
deemed to have given a Conversion Election Notice
(on the last day of such thirty (30) day period)
electing to agree to the gross fair market value of the
Property set forth in the Conversion Notice.
(3) If Investor delivers a Conversion
Election Notice disagreeing with the gross fair market
value of the Property set forth in the Conversion Notice,
then MRP and Investor shall negotiate in good faith to
arrive at an agreed gross fair market value of the
Property as of the date of the Conversion Notice. If the
parties are unable to agree on such value within forty five
(45) days after the delivery of the Conversion Notice,
then either party may invoke the valuation procedures
set forth in Exhibit C. The final gross fair market value
of the Property as of the date of the Conversion Notice,
as agreed upon by MRP and Investor or as determined
pursuant to Exhibit C, shall be the "Project Value" for
purposes of this Section10.8(c).
(4) From and after the date of the Conversion
Notice, notwithstanding anything to the contrary in Section
9.1(a) or Section11.3(c), all distributions to the Members
shall be made strictly pro rata in accordance with the
Members' respective Percentage Interests, as adjusted for
such Conversion in accordance with this Section10.8(c)(4).
Unless unanimously otherwise agreed by the Members, the
Company shall not make any distributions to Members
beginning on the date of the Conversion Notice through the
date that the Project Value is finally determined in accordance
with this Section10.8(c). Immediately following the final
determination of Project Value in accordance with this
Section10.8(c), the respective Percentage Interests of the
Members shall be adjusted (which adjustment shall relate
back to the date of the Conversion Notice) to equal the
following:
(i) the Percentage Interest of MRP shall be equal to
MRP Pre-Conversion Equity Value divided by Total Equity
Value; and
(ii) the Percentage Interest of Investor shall be equal to
Investor Pre-Conversion Equity Value divided by Total
Equity Value.
Thereafter, for purposes of calculating the Percentage Interests
of the Members, (A)MRP shall be deemed to have made an
aggregate amount of Capital Contributions prior to the date of
the Conversion Notice equal to the MRP Pre-Conversion Equity
Value, and (B)the Investor shall be deemed to have made an
aggregate amount of Capital Contributions prior to the date of the
Conversion Notice equal to the Investor Pre Conversion Equity
Value, and subsequent adjustments to the Percentage Interests
of the Members shall be made in accordance with this
Agreement, including Section7.3(d) if applicable.
(5) For purposes of this Section10.8(c):
(i) "MRP Pre-Conversion Equity Value" shall be deemed to be an
amount equal to the cash consideration MRP would have received if the
assets of the Company had been sold on the date of the Conversion
Notice for an all cash net price equal to 98% of the Project Value (i.e.,
an all-cash price that has been reduced by assumed closing costs equal
to two percent (2%) of the Project Value) and the Company had been
dissolved and wound up following such sale and the proceeds of such
sale and the other assets of the Company remaining after payments to
creditors had been distributed to the Members in accordance with the
provisions of this Agreement including Section11.3(c) (excluding this
Section10.8(c)).
(ii) "Investor Pre-Conversion Equity Value" shall be deemed to be
an amount equal to the cash consideration Investor would have received
if the assets of the Company had been sold on the date of the Conversion
Notice for an all cash net price equal to 98% of the Project Value (i.e., an
all-cash price that has been reduced by assumed closing costs equal to
two percent (2%) of the Project Value) and the Company had been
dissolved and wound up following such sale and the proceeds of such
sale and the other assets of the Company remaining after payments to
creditors had been distributed to the Members in accordance with the
provisions of this Agreement including Section11.3(c) (excluding this
Section10.8(c)).
(iii) "Total Equity Value" shall mean the sum of the MRP Pre-
Conversion Equity Value and the Investor pre Conversion Equity Value.
(6) Promptly after the Project Value is finally determined in
accordance with this Section10.8(c) and the adjustment to Percentage
Interests has been
completed in accordance with Section10.8(c)(4), the Members shall
use all commercially reasonable and diligent efforts to obtain Company
Financing in an amount not to exceed seventy percent (70%) loan-to-
value, on such terms as are approved by all of the Members, with the
objective of distributing excess financing proceeds to the Members,
pro rata in accordance with the Members' respective Percentage
Interests, as so adjusted.
ARTICLE 11
DISSOLUTION OF THE COMPANY;
WINDING UP AND DISTRIBUTION OF ASSETS
11.1 Dissolution.
(a) The Company shall be dissolved and its affairs shall be
wound up only upon the first to occur of the following:
(1) the joint written direction of the
Administrative Member and the non Administrative
Member;
(2) the sale or Transfer of all or substantially all of
the assets of the Company in a terminating capital transaction
(except as necessary to continue the Company's existence
for purposes of facilitating and post-closing escrow
arrangement, Seller financing or the like); or
(3) the termination of the legal existence of the
last remaining Member of the Company or the occurrence of any
other event which terminates the continued membership of the last
remaining Member of the Company in the Company, unless the
business of the Company is continued in a manner permitted by
this Agreement or the Act. Upon the occurrence of any event
that causes the last remaining member of the Company to cease
to be a Member of the Company, to the fullest extent permitted
by law, the personal representative of such Member is hereby
authorized and directed to, and shall, within ninety (90) days
after the occurrence of the event that terminated the continued
membership of such member in the Company, agree in writing
(i) to continue the Company and (ii) to the admission of the
personal representative or its nominee or designee, as the
case may be, as a substitute member of the Company, effective
as of the occurrence of the event that terminated the continued
membership of the last remaining Member of the Company in
the Company.
(b) Except with the prior consent of the all of the
Members, no Member shall have the right to (i) withdraw or
resign as a Member of the Company, (ii) redeem, or otherwise
require redemption of, its Interest or any part thereof or (iii)
to the fullest extent permitted by law, dissolve itself voluntarily.
(c) Notwithstanding any other provision of this Agreement, the
Bankruptcy of any Member shall not cause that Member to cease to be a
member of the Company and upon the occurrence of such an event, the
business of the Company shall continue without dissolution. To
the fullest extent permitted by law, the Company shall not be dissolved
or terminated solely by reason of the Bankruptcy, death, removal,
withdrawal, dissolution or admission of any Member.
11.2 Winding Up.
(a) In the event of the dissolution of the Company pursuant to
Section11.1(a), the Administrative Member, or a liquidating trustee
appointed by the Administrative Member, shall wind up the Company's affairs.
(b) Upon dissolution of the Company and until the filing of
a certificate of cancellation as provided in the Act, the Administrative
Member or a liquidating trustee, as the case may be, may, in the name of,
and for and on behalf of, the Company, prosecute and defend suits,
whether civil, criminal or administrative, gradually settle and close the
Company's business, dispose of and convey the Company's property,
discharge or make reasonable provision for the Company's liabilities,
and distribute to the Members in accordance with Section 11.3 any
remaining assets of the Company, all without affecting the liability of
Members and without imposing liability on any liquidating trustee.
(c) Upon the completion of winding up of the Company, the
Administrative Member or liquidating trustee, as the case may be, shall
cause the filing of a certificate of cancellation with the Secretary of State
of the State of Delaware as provided in the Act. The existence of the
Company as a separate legal entity shall continue until termination of the
Company as provided in the Act.
11.3 Distribution of Assets. Upon the winding up of the Company,
the assets shall be distributed as follows:
(a) to the satisfaction of debts and liabilities of the Company
(whether by payment or the making of reasonable provision for
payment thereof), in order of priority as provided by law, other than
debts and liabilities owed to Members, including to the payment of
expenses of the liquidation and to the setting up of any Reserves that
the Administrative Member or the liquidating trustee, as the case may
be, shall determine are reasonably necessary for any contingent,
conditional or unmatured liabilities or obligations of the Company;
(b) to the satisfaction of debts and liabilities of the Company
owed to Members; and
(c) The balance, if any, to the Members in accordance with
the provisions of Section 9.1(a) hereof (subject to Section 7.3(a)
and Section 7.3(c)).
ARTICLE 12
AMENDMENTS
12.1 Amendments. Except as otherwise expressly set forth herein,
this Agreement
may only be amended by written consent of all of the Members. No
amendment, modification, supplement, discharge or waiver hereof or
hereunder shall require the consent of any other Person.
12.2 Additional Members. If this Agreement shall be amended for
the purpose of adding or substituting a Member as permitted herein, the
amendment to this Agreement shall be signed by the Administrative
Member, by the Person to be added or substituted and by the assigning
Member, if any. In making any such amendment, the Administrative
Member shall prepare and file for recordation such documents and
certificates, if any, as shall be required to be prepared and filed under
the Act or any other applicable law. The Administrative Member shall
provide prompt written notice and copies of applicable documents to the
Non-Administrative Member upon any addition or substitution of a
Member as permitted herein and upon any such amendment.
ARTICLE 13
MISCELLANEOUS
13.1 Further Assurances. Each Member agrees to execute,
acknowledge, deliver, file and record such further certificates, amendments,
instruments and documents and to do all such other acts and things as in the
reasonable judgment of the Administrative Member may be necessary or
advisable to carry out the intent and purpose of this Agreement.
13.2 Notices. Unless otherwise specified in this Agreement, all notices,
demands, elections, requests or other communications that any party to this
Agreement may desire or be required to give hereunder shall be in writing and
shall be given by hand by depositing the same in the United States mail, first
class postage prepaid, certified mail, return receipt requested, or by a
recognized overnight courier service providing confirmation of delivery, to
the addresses set forth in Section 2.8, or at such other address as may be
designated by the addressee thereof upon written notice to all of the
Members. All notices given pursuant to this Section 13.2 shall be deemed
to have been given (i) if delivered by hand on the date of delivery or on the
date delivery was refused by the addressee or (ii) if delivered by United
States mail or by overnight courier, on the date of delivery as established
by the return receipt or courier service confirmation (or the date on which
the return receipt or courier service confirms that acceptance of delivery
was refused by the addressee).
13.3 Headings and Captions. All headings and captions contained in this
Agreement and the tables of contents hereto are inserted for convenience only
and shall not be deemed a part of this Agreement.
13.4 Variance of Pronouns. All pronouns and all variations
thereof shall be deemed to refer to the masculine, feminine or neuter,
singular or plural, as the identity of the person or entity may require.
13.5 Counterparts. THIS AGREEMENT MAY BE EXECUTED IN
TWO OR MORE COUNTERPARTS, EACH OF WHICH SHALL
CONSTITUTE AN ORIGINAL AND ALL OF WHICH, WHEN TAKEN
TOGETHER, SHALL CONSTITUTE ONE AGREEMENT. DELIVERY OF
THIS AGREEMENT MAY BE EFFECTED BY FACSIMILE, .PDF OR
OTHER ELECTRONIC TRANSMISSION. DELIVERY BY ONE PARTY
OF AN EXECUTED COUNTERPART OF THIS AGREEMENT TO THE
OTHER PARTY SHALL CONSTITUTE GOOD DELIVERY TO SUCH
OTHER PARTY FOR ALL PURPOSES.
13.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
13.7 Consent to Jurisdiction. To the fullest extent
permitted by law, each Member hereby irrevocably
consents and agrees, for the benefit of each party, that any
legal action, suit or proceeding against it with respect to its
obligations, liabilities or any other matter under or arising
out of or in connection with this Agreement shall be brought
in any federal or state court located in the District of
Columbia (a "Permitted Court"), and hereby irrevocably
accepts and submits to the exclusive jurisdiction of the
Permitted Court with respect to any such action, suit or
proceeding. To the fullest extent permitted by law, each
Member also hereby irrevocably consents and agrees, for
the benefit of each other party, that any legal action, suit
or proceeding against it shall be brought in any
Permitted Court, and hereby irrevocably accepts and
submits to the exclusive jurisdiction of each such Permitted
Court with respect to any such action, suit or proceeding.
To the fullest extent permitted by law, each Member waives
any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions, suits or proceedings
brought in any such Permitted Court and hereby further
waives and agrees not to plead or claim in any such
Permitted Court that any such action, suit or proceeding
brought therein has been brought in an inconvenient forum
(but the foregoing shall not be construed as a waiver of
any federal jurisdictional requirements applicable thereto).
To the fullest extent permitted by law, each Member agrees
that all notices that are required to be given hereunder
may be given by the attorneys for the respective parties.
EACH MEMBER WAIVES TRIAL BY JURY IN
CONNECTION WITH ANY ACTION ARISING
UNDER OR RELATED TO THIS AGREEMENT.
13.8 Partition. The Members hereby agree that no Member nor any
successor interest to any Member shall have the right to have any Company
Asset partitioned, or to file a complaint or institute any proceeding at law or
in equity seeking to have any Company Asset partitioned or seeking dissolution
of the Company under the Act or otherwise under applicable law, and each
Member, on behalf of himself, his successors, representatives, heirs and
assigns, hereby waives any such right. In the event that the Members cannot
agree with respect to a Major Decision that requires the consent of both
Members, it is the express intent of the Members that Section 3.3 provides
the exclusive remedies for such disagreement, and, except where the
Members have expressly agreed herein not to unreasonably withhold,
delay or condition its consent to a Major Decision, the Members do not
intend for any court
either to impose any requirement on either party to concede or waive any right
it may have to approve a Major Decision or to order a judicial sale or
dissolution or similar remedy in response to any such disagreement.
13.9 Invalidity. Every provision of this Agreement is intended to be
severable. The invalidity and unenforceability of any particular provision
of this Agreement in any jurisdiction shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted.
13.10 Successors and Assigns. This Agreement shall be binding upon
the parties hereto and their respective successors, executors, administrators,
legal representatives, heirs and legal assigns and shall inure to the
benefit of the parties hereto and, except as otherwise provided herein,
their respective successors, executors, administrators, legal
representatives, heirs and legal assigns. No Person other than the
parties hereto and their respective successors, executors, administrators,
legal representatives, heirs and permitted assigns shall have any rights
or claims under this Agreement.
13.11 Entire Agreement. This Agreement supersedes all prior
agreements among the parties with respect to the subject matter hereof,
and contains the entire Agreement among the parties with respect to such
subject matter.
13.12 Waivers. No waiver of any provision hereof by any party hereto
shall be deemed a waiver by any other party nor shall any such waiver by
any party be deemed a continuing waiver of any matter by such party.
13.13 Maintenance as a Separate Entity. The Company shall maintain
books and records and bank accounts separate from those of its Affiliates
(including any Subsidiary); shall at all times hold itself out to the
public as a legal entity separate and distinct from any of its Affiliates
(including any Subsidiary) (including in its operating activities, in
entering into any contract, in preparing its financial statements, and
on its stationery and any signs it posts); shall not commingle its assets
with assets of any of its Affiliates (including any Subsidiary); shall
cause its business to be carried on by the Administrative Member
in accordance with the terms of this Agreement; and shall keep
minutes of all meetings of the Members. Failure of the Company,
or any Member on behalf of the Company, to comply with
any of the foregoing covenants or any other covenants contained in this
Agreement shall not affect the status of the Company as a separate legal
entity or the limited liability of a Member.
13.14 Confidentiality.
(a) Each Member agrees not to disclose or permit the disclosure
of any of the terms of this Agreement or of any other confidential, non public
or proprietary information relating to the Company Assets or Project
(collectively, "Confidential Information"), provided that such disclosure may
be made (i) to any Person who is a member, partner, officer, director or
employee of such Member or counsel to or accountants of such Member
solely for their use and
on a need to know basis, provided that such Persons are notified of the
Members' confidentiality obligations hereunder, (ii)with the prior consent
of the Members, (iii)subject to Section13.14(b), pursuant to a subpoena
or order issued by a court, arbitrator or governmental body, agency or
official, (iv)to any lender or legitimate third party equity investor
providing financing to the Company, its Affiliates or its Members
or their Affiliates, (v)as necessary or appropriate in connection
with the audit of the accounts of any Member or to enable any
Member or its Affiliates to comply (as deemed necessary or
appropriate by such party) with the disclosure and other
requirements imposed by statute, regulation or by any
governmental, administrative or other authority having
jurisdiction over it (including, for example, the Internal
Revenue Service or the Securities and Exchange Commission),
(vi)as necessary in connection with a permitted Transfer
of an Interest by any Member, (vii)as required in connection
with seeking governmental approvals and/or entitlements for
the Project, (viii)in any legal action involving the resolution
of any dispute between the Members concerning this
Agreement or any other matters otherwise constituting
Confidential Information hereunder, and (ix)as required
by applicable law or the rules of any securities exchange
upon which the shares of any Member or its Affiliates are listed
or traded. In no event will any information or material that is
already publically disclosed, or otherwise in the public
domain (except as a result of a prior breach of this Section
13.14 by the party seeking to classify otherwise Confidential
Information as being non-confidential) be considered
"Confidential Information" within the meaning of this
Section13.14 (a).
(b) In the event that a Member shall receive a request
to disclose any Confidential Information under a subpoena or
order, such Member shall (i)promptly notify the other Members
thereof, (ii)consult with the other Member on the advisability of
taking steps to resist or narrow such request and (iii)if disclosure
is required or deemed advisable, cooperate with any of the other
Member (at such other Member's sole expense) in any attempt it
may make to obtain an order or other assurance that confidential
treatment will be accorded the Confidential Information that is
otherwise subject to disclosure thereunder; provided nothing
herein will restrict such party in making such disclosure.
(c) No Member shall issue any press release or
other public communication about the formation or existence
of the Company without the express written consent of all
Members, except as required by applicable law or the rules
of any securities exchange upon which the shares of any
Member or its Affiliates are listed or traded.
13.15 No Third Party Beneficiaries. This Agreement is
not intended and shall not be construed as granting any rights,
benefits or privileges to any Person not a party to this
Agreement. Without limiting the generality of the foregoing,
no creditor of the Company or of any Member shall have any
right whatsoever to require any Member to contribute capital
to the Company or otherwise enforce any provision of this
Agreement against any Member.
13.16 Construction of Documents. The parties hereto
acknowledge that they were represented by separate and
independent counsel in connection with the review,
negotiation and drafting of this Agreement and that this
Agreement shall not be subject to the principle of
construing its meaning against the party that drafted same.
13.17 Time of Essence. Time is of the essence in the
performance of each and every term of this Agreement.
13.18 Conflict of Interest.
(a) The parties hereto acknowledge that the law firm of Arnold
& Porter LLP (the "AP Firm") has represented, presently represents,
and may in the future represent Investor, and its Affiliates, in their
separate capacities. Inasmuch as the AP Firm is presently
representing the Company in connection with its formation,
presently representing the interests of Investor and its Affiliates in
connection with the transfer of the Property to the Company and
the formation of the Company, and may represent the Company
and/or Investor and its Affiliates and other future transactions
contemplated herein, potential conflicts of interests may be
created by the AP Firm's representation of Investor and the
Company and their respective Affiliates. Although there
are no conflicts or disputes presently existing between the
Company and such Members (in any capacity held
hereunder), or among the Members themselves, there is
the potential that such conflicts may arise in the future. By
signing this Agreement, the parties acknowledge that these
potential conflicts and relationships have been disclosed, and
that they have had ample opportunity to discuss these conflicts
with the AP Firm and with separate legal counsel. MRP,
the MRP Principals and MRP's Affiliates have been
represented by separate legal counsel in connection with the
drafting and negotiation of this Agreement. Subject to
(and except as provided in) the terms set forth below, the
parties hereto waive any rights they may have now or in the
future to protest or object to the AP Firm's representation
of the Company, Investor, and/or any Affiliates of the
foregoing, and agree that in the event of a conflict between
the Members/Administrative Member, or the Company and
any of its Members/Administrative Member, the AP Firm
shall be permitted to represent Investor (or its successors
in interest) and its Affiliates (other than the Company)
in connection with any such conflict. In the event any
court of competent jurisdiction determines that the AP
Firm's representation of the Company, Investor, and/or
any Affiliate of any of the foregoing, results in a conflict of
interest that may not be waived or that is not within the
scope of the waiver set forth in this Section13.18(a),
or factual circumstances arise in the future which require
the AP Firm to re-evaluate the conflict waiver set forth in
this Section13.18(a), to discontinue its representation of
the Company, Investor, and/or or any Affiliate of any of
the foregoing, or to otherwise modify the terms and
limitations applicable to such representation, the AP Firm
reserves the right to seek additional conflict waivers, to
withdraw from such representation, or to propose
additional terms and limitations (or modifications
to existing terms and limitations) without prejudice
to its rights to continue to represent Investor or any
Affiliates of Investor in such dispute, and on other
matters. Alternatively, the AP Firm may withdraw
from its representation of all parties in connection with
matters pertaining to such dispute. The AP Firm
is an express, intended third party beneficiary of
this Section13.18(a).
(b) The parties hereto acknowledge that the law firm of
Tenenbaum & Saas, P.C. (the "TS Firm") has represented,
presently represents, and may in the future represent
MRP/Administrative Member, the MRP Principals, and their various Affiliates
in their separate capacities. Inasmuch as the TS Firm is presently representing
the Company in connection with its formation, and its acquisition of the
Property from Investor pursuant to the Contribution Agreement, as well as
the interests of MRP, the MRP Principals and their Affiliates in connection
with the formation of the Company, and may represent the Company and
Members and their Affiliates in connection other future transactions
contemplated herein, potential conflicts of interests may be created by the
TS Firm's representation of the MRP and the Company and their respective
Affiliates. In addition, one of the principals of the TS Firm is also an MRP
Principal, and will therefore hold an indirect interest in the Company at the
time of its formation or thereafter. Although there are no conflicts or
disputes presently existing between the Company and such Members
(in any capacity held hereunder), or among the Members themselves, there
is the potential that such conflicts may arise in the future. By signing this
Agreement, the parties acknowledge that these potential conflicts and
relationships have been disclosed, and that they have had ample
opportunity to discuss these conflicts with the TS Firm and with separate
legal counsel. Investor and its Affiliates have been represented by separate
legal counsel in connection with the drafting and negotiation of this
Agreement. Subject to (and except as provided in) the terms set forth
below, the parties hereto waive any rights they may have now or in the
future to protest or object to the TS Firm's representation of the
Company, MRP, any MRP Principal, and/or any Affiliates of the
foregoing, and agree that in the event of a conflict between the
Members, or between the Company and any of its Members, in
whatever capacity, the TS Firm shall be permitted to represent
MRP (or its successors in interest), the MRP Principals and the
MRP Affiliates (other than the Company) in connection with any
such conflict. In the event any court of competent jurisdiction
determines that the TS Firm's representation of the Company, MRP,
the MRP Principals, and/or any Affiliate of any of the foregoing,
results in a conflict of interest that may not be waived or that is not
within the scope of the waiver set forth in this Section13.18(b),
or factual circumstances arise in the future which require the TS
Firm to re-evaluate the conflict waiver set forth in this Section
13.18(b), to discontinue its representation of the Company, MRP,
any MRP Principal, and/or any Affiliate of any of the foregoing, or
to otherwise modify the terms and limitations applicable to such
representation, the TS Firm reserves the right to seek additional
conflict waivers, to withdraw from such representation, or to propose
additional terms and limitations (or modifications to existing terms
and limitations) without prejudice to its rights to continue to
represent MRP, the MRP Principals, or any Affiliates of MRP in
such dispute, and on other matters. Alternatively, the TS Firm
may withdraw from its representation of all parties in
connection with matters pertaining to such dispute. The TS
Firm is an express, intended third party beneficiary of this
Section13.18(b).
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this
Operating Agreement as of the Effective Date.
[insert signature blocks]
List of Exhibits and Schedules
Exhibits:
A: Mediation Procedures
B: Arbitration Procedures
C: Valuation Procedures
D: Preliminary Development Budget
E: Preliminary Development Schedule
F: Guaranty Cost Sharing Agreement
Schedules
1.1-A: Description of Investor Property
1.1-B: Description of Land
3.2(s): Certain Matters
3.4: Representatives
EXHIBIT A
Mediation Procedures
In the event of any dispute under the circumstances described in
Sections3.3(c), any party may commence mediation by providing to the
other party a written request for mediation, setting forth the subject of the
dispute and the relief requested to the other party via facsimile, email or
other physical or electronic means ("Mediation Election Notice"). The
parties hereby agree that, except as expressly set forth herein, no
arbitration or court action with respect to any dispute may be commenced
until the dispute has been submitted for mediation.
1. For purposes of this Exhibit A, the term "Party" means either
Investor or MRP.
2. The dispute(s) which shall be listed in such Mediation Election
Notice, are, collectively, the "Disputed Items." Within fifteen (15) calendar
days following the Mediation Election Notice, the Parties will attempt to
agree in good faith on a single mediator, which must be an Approved
Mediator. "Approved Mediator" means an individual who is not an Affiliate
of any Member, and who is not and has never been an employee of any
Member or Affiliate, and who is a retired judge or is otherwise
knowledgeable in the Disputed Items, as determined by the Parties. If
the Parties cannot agree on an Approved Mediator within such fifteen (15)
calendar day period, then either Party may elect to submit the resolution
of the Disputed Items to binding arbitration pursuant to Exhibit B. The
foregoing fifteen (15) day period shall be reduced to five (5) days in the
case of a dispute regarding an Expedited Major Decision.
3. If the Parties agree on a single Approved Mediator, then the
Parties and the Approved Mediator shall meet at a mutually acceptable
location in the greater Washington, D.C. area to conduct the mediation
of the Disputed Items (the "Mediation"). The Mediation shall occur on
a single Business Day, and shall begin no later than 9a.m. and conclude
no earlier than 2p.m.
4. Notwithstanding the foregoing, the Parties may at any time by
mutual written agreement discontinue mediation proceedings and themselves
agree upon the Disputed Items.
5. The Parties covenant that they will participate in the Mediation,
and that they will share equally in its costs. All offers, promises,
conduct and statements, whether oral or written, made in the course
of the Mediation by any of the parties, their agents, employees,
experts and attorneys, and by the mediator are confidential, privileged
and inadmissible for any purpose, including impeachment, in any
arbitration, litigation or other proceeding involving the Parties,
provided that evidence that is otherwise admissible or discoverable
shall not be rendered inadmissible or non-discoverable as a
result of its use in the Mediation. Either Party may seek equitable
relief prior to the Mediation to preserve the status quo or prevent
irreparable harm pending the completion of that process. Except
for such an action to obtain equitable relief, neither Party may
commence an arbitration or court action with respect to the
matters submitted to mediation until after the completion
of the initial Mediation session, and thereafter, either Party
shall be free to submit the matter to binding arbitration
pursuant to Exhibit B.
EXHIBIT B
Arbitration Procedures
In the event that the Members cannot agree on any Major Decision that
is expressly subject to binding arbitration pursuant to Section3.4(c) of the
Agreement, or in the event of any dispute pursuant to Article 4 of the
Agreement, then either Member may submit such dispute to arbitration
in accordance with this Exhibit B.
1. For purposes of this Exhibit B, the term "Party" means either
Investor or MRP.
2. Under the circumstances described in Section3.4(c) or Article 4,
either Party may give written notice (an "Arbitration Election Notice") to the
other that it is submitting a dispute to arbitration under this Exhibit B. The
Major Decision(s) or other matter then in dispute, which shall be listed in
such Arbitration Election Notice, are, collectively, the "Disputed Items." The
Arbitration Election Notice shall name one (1) arbitrator selected by such
Party, which must be an Approved Arbitrator. "Approved Arbitrator" means
an individual who is not an Affiliate of any Member, and who is not and has
never been an employee of any Member or Affiliate, and who (1) if the
Disputed Items relate to Budget or accounting matters, has at least ten (10)
years' experience as a certified public accountant auditing real estate
development companies or institutional investors in respect of their real
estate investments in the United States; (2) if the Disputed Items relate to
a proposed debt financing, has at least ten (10) years' experience as an
arranger of debt financing for Class A commercial real estate in the
United States; (3) if the Disputed Item relates to an architectural issue,
has at least ten (10) years' experience as a licensed architect of Class A
commercial real estate in the United States, (4) if the Disputed Item
relates to an engineering issue, has at least ten (10) years' experience as
a civil engineer for Class A commercial real estate developments in the
United States, (5) if the Disputed Item relates to a different type of
engineering issue, has at least ten (10) years' experience as an engineer
in the specific engineering subspecialty involved, (6) if the Disputed Item
relates to some other technical issue or concern, has at least ten (10)
years' experience in performing professional services involving
substantially identical technical knowledge and experience in the United
States, or (7) for all other Disputed Items, is a retired judge.
3. Within fifteen (15) Calendar Days after either Party delivers
an Arbitration Election Notice, the other Party shall give written notice to
the first Party either (i) approving the arbitrator selected by the first Party
to act as sole arbitrator or (ii) naming a second arbitrator, who shall be an
Approved Arbitrator. If the second Party fails timely to deliver such notice,
it shall be deemed to have approved the arbitrator selected by the first
Party to act as sole arbitrator. If the second Party timely names a second
arbitrator, the two named arbitrators shall select a third arbitrator (who
must also be an Approved Arbitrator). In the event the two arbitrators
fail to appoint or agree upon the third arbitrator within fifteen (15) Calendar
Days after the second Party's notice naming the second arbitrator, either
Party may request the director of the Washington, D.C. regional office of
the American Arbitration Association (or any successor organization, or if
no successor organization exists, then to an organization composed of
persons of similar qualifications) to do so within five(5) Business Days
of such request. In
the event of the inability or failure of any arbitrator to act, a replacement
arbitrator shall be selected in the same manner as set forth above. The
foregoing fifteen (15) day periods shall be reduced to five (5) days in the
case of a dispute regarding an Expedited Major Decision.
4. Within five (5) Business Days of the determination of the
identity of the three (3) arbitrators or the determination to utilize a sole
arbitrator pursuant to Paragraph3 above, the Parties and the arbitrator(s)
shall hold a hearing at a mutually acceptable location in the greater
Washington, D.C. area at which hearing (the "Hearing") each Party
shall simultaneously provide each other (and each of the arbitrators)
with sealed envelopes in which each Party shall have set forth its
proposed resolution of the Disputed Items (neither Party being
bound by any previous offers or discussions regarding the resolution
of the Disputed Items). Until the Hearing has been completed, the
Hearing shall occur on consecutive Business Days without a break,
and shall begin no later than 9 a.m. and conclude no earlier than
5 p.m. on each day (unless otherwise determined by the
arbitrator(s)).
5. Prior to the Hearing, either Party may present whatever written
evidence it deems appropriate (with copies of any such written evidence being
sent to the other Party). At the Hearing, the Parties may each submit
evidence, be heard, and cross-examine witnesses, and each of the Parties
will furnish the arbitrator(s) with such information as the arbitrator(s) may
reasonably request. The Hearing shall be conducted such that each Party
shall have reasonably adequate time to present oral evidence or
argument and cross-examine witnesses. The sole task of the
arbitrator(s) shall be to determine whether the position of the Investor
or Development Manager Member with respect to the Major Decision
constituting the Disputed Item is in the best interests of the Company;
provided, however, with respect to any Disputed Item involving a
Financing Decision, the sole task of the arbitrator(s) shall be to
determine whether the position of Investor is commercially reasonable
(and if Investor's position with respect to such Financing Decision is
commercially reasonable, then the arbitrator(s) shall hold in favor of
Investor). No other resolution of any Disputed Item may be
determined by the arbitrator(s), and the arbitrator(s) may not choose
any partial resolution of some of the Disputed Items submitted
by a Party unless the arbitrator(s) choose the entire resolution of
all Disputed Items submitted by such Party.
6. Both Parties shall request that the decision of the
arbitrator(s) shall be given within a period of ten (10) Business
Days after the Hearing and shall be accompanied by a reasonably
detailed explanation of each arbitrator's rationale for its decision.
A decision on resolution of the Disputed Items in which a
majority of the arbitrators concur shall in all cases be binding and
conclusive upon the Parties. The fees and expenses of the
arbitrator(s) and this arbitration process shall be borne by the
Party whose proposed resolution of the Disputed Items was not
selected by the arbitrator(s). The foregoing ten (10) Business
Day period shall be reduced to five (5) Business Days in the
case of a dispute regarding an Expedited Major Decision.
7. If the decision of the arbitrator(s) is held by a court of competent
jurisdiction to be unenforceable for any reason (Investor and MRP hereby
affirmatively stating it is their intent and
agreement that the concurrence of a majority of the arbitrators rendered in
accordance herewith to the Disputed Items will be legally enforceable as to
them), then the resolution of the Disputed Items shall be subject to
litigation in any court of competent jurisdiction with the final
determination being made in accordance with a court judgment, no
longer subject to appeal, of a court of competent jurisdiction.
8. Notwithstanding the foregoing, the Parties may at any time by
mutual written agreement discontinue arbitration proceedings and themselves
agree upon the Disputed Items.
EXHIBIT C
Valuation Procedures
In the event that either Member desires to invoke the valuation
procedures set forth in Exhibit C pursuant to Section 4.12(a) or
Section 10.8(c)(3), the following shall apply:
1. The Member invoking the procedures set forth in Exhibit C ("Invoking
Member") shall deliver written notice ("Appraisal Notice") to the other Member
("Other Member") which (i) states that the Invoking Member is invoking the
procedures set forth in this Exhibit C and (ii) identifies a Qualified
Appraiser ("First Appraiser"). The date of the Appraisal Notice shall
be the "Appraisal Commencement Date".
2. Within fifteen (15) days following the Appraisal Commencement Date,
the Other Member shall deliver written notice to the Invoking Member which
identifies a second Qualified Appraiser ("Second Appraiser").
3. During the forty-five (45) day period following the Appraisal
Commencement Date, the First Appraiser and the Second Appraiser shall
independently determine the fair market value of the Property. Prior to the
date that is forty-five (45) days after the Appraisal Commencement Date, the
First Appraiser and the Second Appraiser shall each deliver to the Members
a written report of its determination of the fair market value of the Property.
4. If the greater of the fair market values as determined by
either the First Appraiser or the Second Appraiser is equal to or less
than 105% of the lesser of the fair market values as determined by
the First Appraiser or the Second Appraiser, then the fair market
value shall be the average of such fair market values. If the greater
of the fair market values as determined by either the First Appraiser
or the Second Appraiser is greater than 105% of the lesser of the fair
market values as determined by the First Appraiser or the Second
Appraiser, then the First Appraiser and the Second Appraiser shall
appoint a third Qualified Appraiser ("Third Appraiser") pursuant to
paragraph 5 below.
5. With five (5) days after delivery of the reports of both the First
Appraiser and Second Appraiser pursuant to paragraph 4, the First
Appraiser and Second Appraiser shall meet to appoint the Third Appraiser.
First Appraiser and Second Appraiser shall each bring to such meeting a list
of three Qualified Appraisers that it proposes. At such meeting, such lists
shall be exchanged and any Qualified Appraiser that is on both lists shall be
the Third Appraiser. If no Qualified Appraiser is on both lists, then First
Appraiser and Second Appraiser may each select a Qualified Appraiser
from the other's list, and if either First Appraiser or Second Appraiser does
so the Qualified Appraiser so selected shall be the Third Appraiser. If a
Third Appraiser is not so selected, First Appraiser and Second Appraiser
shall each provide a supplemental list of three Qualified Appraisers (which
may include Qualified Appraisers on the other's prior list). Any Qualified
Appraiser that is on both any list provided by the First Appraiser and any
list provided by the Second Appraiser shall be the Third Appraiser. If no
Qualified Appraiser is on both lists, then First Appraiser and Second Appraiser
may each select a Qualified Appraiser from the
other's lists, and if either First Appraiser or Second Appraiser does so the
Qualified Appraiser so selected shall be the Third Appraiser. Such process
shall continue until the Third Appraiser is identified. If more than one
Qualified Appraiser is identified pursuant to this process, the Third Appraiser
shall be determined by coin toss among such Qualified Appraisers.
6. The Third Appraiser shall be provided with a copy of the reports of
fair market value prepared by the First Appraiser and the Second Appraiser,
and copies of all materials upon which such reports are based. During the
thirty (30) day period following its appointment, the Third Appraiser shall
independently undertake such review of the reports of fair market value
prepared by the First Appraiser and the Second Appraiser, and shall conduct
such further investigation and analysis, as it deems necessary or
appropriate, and shall determine whether the fair market value as
determined by the First Appraiser or the Second Appraiser is closer
to the actual fair market value of the Property. Whichever of such fair
market values is determined by the Third Appraiser to be closer to the
actual fair market value of the Property shall be the final gross fair
market value of the Property for purposes of Section4.12(a) or
Section10.8(c)(3).
7. A "Qualified Appraiser" shall be an appraiser who (i) is
a member of the Master Appraiser Institute and is licensed in the
District of Columbia, (ii) has not less than ten (10) years'
experience in appraising commercial real estate projects,
(iii) is currently practicing in the District of Columbia, and
(iv) is not, and during the preceding five (5) years has not been,
an employee of either the Invoking Member, the Other
Member or any of their affiliates.
8. Each Member shall pay all costs and expenses of
the Qualified Appraiser appointed by it, and shall split equally
all costs and expenses of the Third Appraiser.
EXHIBIT D
Preliminary Development Budget
[See attached]
EXHIBIT E
Preliminary Development Schedule
[See attached]
EXHIBIT F
Form of Guaranty Cost Sharing Agreement
GUARANTY COST SHARING AGREEMENT
(Riverfront)
THIS GUARANTY COST SHARING AGREEMENT (this "Agreement"),
dated as of __________ ___, 201__, is made by and among [MRP MEMBER]
("MRP"), [FRP MEMBER] ("FRP"), [MRP GUARANTORS] ("Guarantors"), and
RIVERFRONT I LLC, a Delaware limited liability company ("Borrower"). MRP
and FRP are sometimes each referred to herein as a "Member" and collectively as
the "Members").
R E C I T A L S :
WHEREAS, MRP and FRP are the sole members of Riverfront
I LLC, a Delaware limited liability company ("Borrower"), parties to
that certain Limited Liability Company Agreement of Borrower
effective as of ________, 201__ (the "Borrower LLC Agreement"),
and owners of an Interest (as that term is defined in the Borrower
LLC Agreement) in Borrower;
WHEREAS, in connection with a loan (the "Loan") made
pursuant to that certain Loan Agreement (the "Loan Agreement")
dated ________, 201_ between ____________ ("Lender") and
Borrower, Guarantors have each executed, delivered and become
liable under (i) that certain Guaranty Agreement, of even date with
the Loan Agreement, a copy of which has been delivered to MRP
and FRP (the "Guaranty") in favor of the Lender, and (ii) that certain
Environmental Indemnity Agreement, of even date with the Loan
Agreement, a copy of which has been delivered to MRP and FRP
(the "Environmental Indemnity") in favor of the Lender;
WHEREAS, pursuant to the Guaranty and
Environmental Indemnity, Guarantors are (or may be) obligated
to make certain specified guaranty and/or indemnity payments to
Lender, and to perform certain guarantied or indemnified
obligations thereunder, as provided for under the terms and
conditions set forth in the Guaranty and Environmental Indemnity;
and
WHEREAS, Guarantors are willing to execute and deliver
the Guaranty and Environmental Indemnity to Lender only if MRP
and FRP agree to the contribution, indemnification and/or guaranty
cost-sharing provisions set forth herein.
W I T N E S S E T H :
NOW, THEREFORE, in consideration of the foregoing
Recitals (each of which is incorporated herein as a substantive part of
this Agreement), the mutual covenants contained herein, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned parties hereby agree as follows:
SECTION 1. Sharing of Guaranty Payments
(a) MRP and FRP each hereby agree that, subject to,
and except as provided in Section l(b), any and all Guaranteed
Obligations (as defined below) that become due and payable
under the Guaranty, and any and all Indemnification Obligations
(as defined below) that become due and payable under the
Environmental Indemnity (the foregoing, each, a "Liability"
and collectively, the "Liabilities") shall be allocated to and
shared by the Members in accordance with their respective
"Percentage Interests" in the Company as of the date the
Liability becomes due and payable by Guarantors. The
Percentage Interest of each Member shall constitute such
Member's "Share" of the applicable Liability, except
as hereafter provided. For purposes of this Agreement,
the term "Guaranty Obligations" shall mean and refer to all
amounts, including without limitation losses, liabilities, damages,
expenses, claims or other sums, for which Guarantors become
liable pursuant to the Guaranty, and the term "Indemnification
Obligations" shall mean and refer to all amounts, including
without limitation losses, liabilities, damages, expenses, claims
or other sums, for which Guarantors become liable in his
capacity as a party to the Environmental Indemnity. Unless
otherwise agreed by the Members in writing, Guaranty
Obligations and Indemnification Obligations shall exclude
(i) legal fees incurred by Guarantors in connection with the
Guaranty and/or the Environmental Indemnity and any
claim thereunder, and (ii) any legal fees or collection costs
incurred by Lender in pursuing its remedies against
Guarantors under the Guaranty and/or the Environmental
Indemnity.
(b) Notwithstanding the terms of Section l(a) or
any other provision herein to the contrary, each Member
(as such, a "Responsible Member", which term will be
deemed to include and encompass actions taken by
such Member and/or any persons or entities affiliated with
such Member) shall each be solely responsible for, and shall
indemnify and hold harmless the other Member (the
"Non Responsible Member") harmless from and against
(and Non Responsible Member shall have no liability or
obligation to pay its respective Share of) any and all
Liabilities to the extent such Liabilities arise out of or result
from:
(1) fraud, willful misconduct or gross negligence on
the part of the Responsible Member, whether occurring
directly or through Borrower,
(2) any bad faith action by such Responsible Member,
whether occurring directly or through Borrower,
(3) any affirmative or intentional action by such
Responsible Member which gives rise to Liabilities, provided
that this clause (3) shall not apply in the case of any affirmative
or intentional action taken by a Member which, at the
time such affirmative or intentional action was taken:
(A) was (i) undertaken in good faith by such Member,
and (ii) reasonably believed by such Member to be (1) in the
best interests of Borrower (and not primarily in such Member's
self-interest), and (2) within the scope of authority expressly
granted or reserved to such Member under the terms of the
Borrower LLC Agreement, or
(B) was approved in writing by the other Members.
(4) any action by a Responsible Member (whether
occurring directly or through Borrower) which, under the
terms of Section ___ of the Loan Agreement, results in the
Indebtedness (as defined in the Loan Agreement) becoming
fully recourse to Borrower, including without limitation all of
actions described in clauses (__) - (__) of the last
grammatical paragraph of Section ___ of the Loan
Agreement (unless expressly consented by the
other Member), and/or
(5) any breach of the terms of the Guaranty or
Environmental Indemnity by Guarantors, provided the
foregoing shall be deemed to exclude any failure
by Guarantors to pay Liabilities for which they are liable
under the Guaranty and/or Environmental Indemnity to
the extent the other Member failed to satisfy its
indemnification and/or contribution obligations to Guarantors
in relation to such Liabilities (as otherwise provided for
under the terms of this Agreement).
The foregoing notwithstanding, if both Members are
Responsible Members with respect to any Liabilities
arising under this Section 1(b) by virtue of their
conduct or actions with regard to the matter giving rise
to such Liabilities, then such Liabilities shall be allocated
between the Responsible Members in proportion to their
Percentage Interests.
(c) (i) If Guarantors, or any of them, make a
payment to Lender on account of any Liability governed by
Section 1(a), FRP shall nevertheless remain responsible for
its Share of the amount so paid; and if the amount so paid by
Guarantors exceeds MRP's Share of the applicable
Liability, then FRP shall reimburse MRP, together with
interest to the extent provided for in Section 1(f), within
five (5) Business Days following written demand by MRP
or any of the Guarantors for the portion of such excess
payments for which FRP is responsible under Section 1(a).
(ii) If Guarantors, or any of them, make a payment
to Lender on account of any Liability governed by
Section 1(b), with respect to which FRP is a Responsible
Member (either in whole or in part), then FRP shall
nevertheless remain responsible the amount so paid
(or its relative share thereof, as determined in accordance
with the terms of Section 1(b)) and shall pay such amount(s)
to MRP or the applicable Guarantor(s) within five
(5) days after written demand from MRP or any of
the Guarantors, together with interest as and to the extent
provided for in Section 1(f); and if the amount so paid by
the Guarantors to Lender exceeded MRP's (or such
Guarantors) share (relative to FRP's share) of the applicable
Liability, then FRP shall reimburse MRP or the applicable
Guarantor(s) within five (5) Business Days following written
demand from MRP or any of the Guarantors (together with
interest as and to the extent provided for in Section 1(f)), for
FRP's relative share of any such excess payments all as
determined in accordance with the last sentence of Section 1(b).
(iii) All amounts that are due and payable from a
Member or Responsible Member to Guarantors or the
Company under any of the foregoing provisions shall be paid
(together with interest as and to the extent provided for in
Section 1(f)) within five (5) Business Days after written
demand to such Member or Responsible Member by
Guarantors or any other Member entitled to contribution
or indemnity hereunder.
(d) Each of the Members hereby acknowledges
and agrees that, notwithstanding anything to the contrary
in the Borrower LLC Agreement, any and all payments
made by the Members pursuant to the terms of Section
1(a) of this Agreement (but not pursuant to Section1(b)
of this Agreement) shall be considered voluntary additional
Capital Contributions made by them to the Borrower
pursuant to the terms of the Borrower LP Agreement,
provided however that, notwithstanding anything to the
contrary in the Borrower LP Agreement, any such
voluntary additional Capital Contributions shall be
repaid prior to any other distributions being made
under Article 8 of the Borrower LLC Agreement.
Without limiting the generality of the foregoing, if (i)
any MRP Guarantor incurs any Liabilities under a
Guaranty; (ii) such Liabilities are not ones with respect
to which MRP is the sole Responsible Member;
(iii) MRP or at least one of the applicable MRP
Guarantors advises the Company and Investor
promptly after the occurrence thereof, of the facts,
circumstances or events giving rise to such Liabilities
(in order to maximize whatever opportunity that the
Company has, if any, to take action to reduce,
eliminate or satisfy such liability or obligation directly;
and (iv) any such MRP Guarantor(s) pay such Liabilities,
then Company shall reimburse such MRP Guarantor(s)
for the entire amount of such payment within thirty (30)
days after notice from the MRP Guarantor certifying
compliance with each of the above requirements and
requesting reimbursement from the Company therefor
(unless FRP shall, during such time period, provide
notice to the applicable MRP Guarantor that it disputes
one or more of the statements contained in the request,
in which event the thirty (30) day period shall be tolled
until such dispute is resolved). In the event that the
Company fails to timely reimburse the MRP Guarantor
as aforesaid, such MRP Guarantor may demand contribution
or indemnification, as applicable, from FRP pursuant to the
applicable provisions of this Agreement. If FRP fails to
contribute the amount required under this Agreement to
pay or reimburse one or more of the MRP Guarantors
for Liabilities paid by them to the Lender as described in
this subsection, (A) such payment by the MRP Guarantor
shall be deemed to have been advanced by MRP to the
Company as an Additional Capital Contribution under
(and as defined in) Section6.2 of the Borrower LLC
Agreement; (B) MRP shall be deemed to be a Funding
Member under (and as defined in) Section6.3 of the
Borrower LLC Agreement; (C)Investor shall be
deemed to be a Non-Funding Member under (and as
defined in) Section6.3 of the Borrower LLC Agreement;
and (D)MRP shall have the right to select one (1) of
the remedies noted in Section6.3(b) by notice
delivered to the FRP.
(e) Each of the Members hereby acknowledges
and agrees that any and all payments made by
Guarantors or the Responsible Members by application
of the terms of Section 1(b) of this Agreement shall not be
considered additional Capital Contributions made by them
to the Borrower, and shall not be credited to any such
Responsible Member's Capital Account or included in
determining any Responsible Member's unreturned Capital
Contributions
(but any advance made by Guarantors or a Non Responsible
Member, on behalf of a Responsible Member, for Liabilities of
the type described in this Section 1(b) shall be treated as
"Priority Loan" from such Member (or, if paid by Guarantors,
by MRP) to the Company, as defined in (and pursuant to) the
Borrower LLC Agreement.
(f) All payments to be made by any party
to another party hereunder shall be made in lawful currency of
the United States, by wire transfer to an account or accounts
designated in writing by the party entitled thereto. If any
amount which is due and payable to Guarantors, Lender or
any other Member under this Agreement is not paid within five
(5) Business Days after written demand, then the unpaid amount
shall bear interest from the earlier to occur of (A) the date of
such written demand, and (B) date any excess payments were
advanced by Guarantors or another applicable Member to
Lender, until the date such Member or Responsible Member,
as applicable, has paid the full amount due from him to
Guarantors, Lender or such other Member (as applicable).
Such interest shall accrue and be payable at the same annual
rate of interest that applies to a Priority Loan under the
Borrower LLC Agreement.
SECTION 2. No Defenses to
Performance. The obligations of the Members under this
Agreement shall be performed strictly in accordance with the
terms contained herein, and in connection with the performance
of its obligations under this Agreement, each Member agrees
not to assert against Guarantors: (i) any lack of validity or
enforceability of the Guaranty, or (ii) the existence of any
claim, set-off, defense or other rights that Guarantors or the
Company may have at any time against Lender or its successors
and assigns as a defense or excuse to such other Member's
performance of its obligations under this Agreement, unless
(and only for so long as) Guarantors successfully assert such
rights against Lender.
SECTION 3. Representations and
Warranties of Members. Each Member, solely as to itself,
hereby makes the following representations and warranties
to and for the benefit of the other Member:
(a) The execution, delivery and performance of this
Agreement by each such Member (i) is within such Member's
powers and capacity, (ii) has been duly authorized by all
necessary entity action, (iii) does not contravene any law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award or any indenture, agreement, lease,
instrument or other contractual restriction binding on or
affecting such Member, and (iv) does not result in or
require the creation of any lien, security interest or
other charge or encumbrance upon or with respect to
any of its properties. Except to the extent already
obtained by such Member, no authorization, approval,
consent, agreement, permit, order or other action by
and no notice to or filing or registration with, any
Governmental Authority or regulatory body is
required for the due execution, delivery and performance
of this Agreement by such Member.
(b) This Agreement has been duly authorized,
executed and delivered and constitutes the legal, valid
and binding obligation of such Member, enforceable
against such Member in accordance with its terms,
except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally and
by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity
or at law).
SECTION 4. Amendments, Etc.
No amendment or waiver of any provision of this
Agreement nor consent to any departure by a
party there from shall be effective unless the same
shall by in writing and signed by each party or its
authorized representative, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which it was given.
SECTION 5. Addresses For Notices. All
notices and other communications proved for hereunder
shall be in writing and sent by United States registered or
certified mail (postage prepaid, return receipt requested)
or via a nationally recognized overnight courier service,
addressed to the applicable Member at the same notice
address as is provided for such Member under the terms
of the Borrower LLC Agreement, or at such other
address as shall be designated by such party in a written
notice to the other party in accordance herewith. All such
notices and other communications shall be effective upon
the earlier to occur of actual receipt or refusal of delivery, if
sent (a) by mail (as aforesaid), (b) by overnight delivery
with a nationally recognized overnight courier service, or
(c) by local hand delivery.
SECTION 6. Continuing Obligation. This
Agreement is a continuing obligation and shall (a) be
binding upon the Members, and each of them, and their
respective permitted heirs, successors, transferees and
assigns, and (b) inure to the benefit of and be enforceable
by Guarantors, and each of them, and each of the other
Members, as applicable, and their respective heirs,
successors, transferees and assigns. No party hereto
shall assign all or any part of this Agreement without the
prior written consent of the other parties; provided
however, each Member may assign this Agreement
in connection with any assignment or transfer of such
Member's Interest that is permitted by right or duly
approved in accordance with the terms of the
Borrower LLC Agreement.
SECTION 7. Termination. Notwithstanding
any provision herein to the contrary, this Agreement shall
terminate upon any repayment or defeasance,
in full, of the Loan.
SECTION 8. Governing Law. This Agreement
shall be governed by, and construed and interpreted in
accordance with, the laws of the District of
Columbia, without reference to conflict of laws
principles.
SECTION 9. Headings. Section heading in
this Agreement are included herein for convenience of
reference only and shall not constitute a part of this
Agreement for any other purpose.
SECTION 10. Further Assurances. Each
of the parties to this Agreement shall do such further acts
and things and execute and deliver to each other such
additional assignments,
agreements, powers and instruments as may be
reasonably necessary to carry into effect the intent
and purposes of this Agreement.
SECTION 11. Survival of Representations and
Warranties. All agreements, representations and
warranties made in this Agreement shall survive the
execution and delivery of this Agreement until any
and all sums payable under this Agreement
have been indefeasibly paid in full.
SECTION 12. Severability of Provisions.
Any provisions of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof or affection the validity or
enforceability of such provision in any other jurisdiction.
SECTION 13. Execution in Counterparts
and Electronic Delivery. This Agreement may be
executed in any number of counterparts and by
different parties hereto on separate counterparts,
each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but
one and the same Agreement. Delivery of an executed
counterpart of this Agreement by facsimile transmission,
electronic mail or other reliable electronic means shall
be deemed to constitute good and valid execution and
delivery hereof for all purposes.
SECTION 14. Time. Time is of the essence of this
Agreement and each and every provisions hereof in
which time is an element.
SECTION 15. Attorneys' Fees. If any action
at law or in equity is necessary to enforce or interpret the
terms of this Agreement, and in addition to any other relief
to which the prevailing party may be entitled, the prevailing
party(ies) shall be entitled to recover from the non-prevailing
party(ies) his or their costs of litigation, including reasonable
attorneys' fees, costs and necessary disbursements.
SECTION 16. No Third Party Beneficiaries.
This Agreement is made for the exclusive benefit of the
parties hereto, their executors, administrators, successors and
assigns herein permitted and except as otherwise expressly
provided, not for any third party as a third party beneficiary
or otherwise. The foregoing notwithstanding, Borrower shall
be deemed a third party beneficiary of this Agreement, with
full power and authority to make demands in accordance
herewith, and otherwise enforce the terms of this
Agreement against any party in breach of his obligations
hereunder.
[Text Ends Signatures Commence on the Following Page]
IN WITNESS WHEREOF the parties have executed this
Agreement as of the date first above written.
________________________________
[MRP GUARANTOR #1]
________________________________
[MRP GUARANTOR #2]
_________________________________
[MRP GUARANTOR #3]
_________________________________
[MRP GUARANTOR #4]
[MRP SIGNATURE BLOCK]
[FRP SIGNATURE BLOCK]
SCHEDULE1.1-A
Description of Investor Property
SCHEDULE1.1-B
Description of Land
SCHEDULE3.2(s)
Certain Matters
[List (i)approved general contractor, (ii)approved architect,
(iii)approved plans and (iv)any other matters which have been
approved relative to the development and construction of the
Improvements]
SCHEDULE3.4
Representatives
MRP Representatives
-----------------------
Robert Murphy
Frederick Rothmeijer
FRP Representatives
----------------------
David H. deVilliers Jr.
1 Insert reference to final approved PUD.
2 Insert reference to REA (as negotiated and recorded)
3 Development Agreement to provide for payment as follows:
25% of the Development Fee will be paid (or, at MRP's election,
credited as part of MRP's Mandatory Capital Contributions hereunder)
upon commencement of Vertical Construction, and the remaining 75%
will be payable in equal monthly installments over the ___-month
construction period for the Improvements (provided that if the
schedule for construction is adjusted, the schedule for payment of the
remaining installments of the fee will be similarly adjusted).
4 Insert Parcel Value as determined pursuant to the Contribution Agreement.
5 Insert percentages equal to initial Percentage Interests.
EX-31
4
ex31a.txt
CEO CERTIFICATION
CERTIFICATIONS Exhibit 31(a)
I, Thompson S. Baker II, certify that:
1. I have reviewed this report on Form 10-Q of Patriot Transportation Holding,
Inc.;
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects
the financial condition, results of operations and cash flows of the registrant
as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial
reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the
registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure
controls to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries,
is made known to us by others within those entities, particularly during the
period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our supervision,
to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes
in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrant's disclosure controls and
procedures and presented in this report our conclusions about the effectiveness
of the disclosures controls and procedures, as of the end of the period
covered by this report based on such evaluation; and
d) disclosed in this report any changes in the registrant's internal control
over financial reporting that occurred during the registrant's most recent
fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial report;
and
5. The registrant's other certifying officers and I have disclosed,
based on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent
functions):
a) all significant deficiencies in the design or operation of internal
controlover financial reporting which are reasonably likely to adversely
affect the registrant's ability to record, process, summarize and report
financial information; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
control over financial reporting.
Date: May 2, 2012 /s/Thompson S. Baker II
President and Chief Executive
Officer
EX-31
5
ex31b.txt
CFO CERTIFICATION
CERTIFICATIONS Exhibit 31(b)
I, John D. Milton, Jr., certify that:
1. I have reviewed this report on Form 10-Q of Patriot Transportation Holding,
Inc.;
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects
the financial condition, results of operations and cash flows of the registrant
as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial
reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the
registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure
controls to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries,
is made known to us by others within those entities, particularly during the
period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our supervision,
to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes
in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrant's disclosure controls and
procedures and presented in this report our conclusions about the effectiveness
of the disclosures controls and procedures, as of the end of the period
covered by this report based on such evaluation; and
d) disclosed in this report any changes in the registrant's internal control
over financial reporting that occurred during the registrant's most recent
fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial report;
and
5. The registrant's other certifying officers and I have disclosed,
based on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent
functions):
a) all significant deficiencies in the design or operation of internal
controlover financial reporting which are reasonably likely to adversely
affect the registrant's ability to record, process, summarize and report
financial information; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
control over financial reporting.
Date: May 2, 2012 /s/John D. Milton, Jr.
Executive Vice President, Treasurer,
Secretary and Chief Financial Officer
EX-31
6
ex31c.txt
CAO CERTIFICATION
CERTIFICATIONS Exhibit 31(c)
I, John D. Klopfenstein, certify that:
1. I have reviewed this report on Form 10-Q of Patriot Transportation Holding,
Inc.;
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects
the financial condition, results of operations and cash flows of the registrant
as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial
reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the
registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure
controls to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries,
is made known to us by others within those entities, particularly during the
period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our supervision,
to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes
in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrant's disclosure controls and
procedures and presented in this report our conclusions about the effectiveness
of the disclosures controls and procedures, as of the end of the period
covered by this report based on such evaluation; and
d) disclosed in this report any changes in the registrant's internal control
over financial reporting that occurred during the registrant's most recent
fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial report;
and
5. The registrant's other certifying officers and I have disclosed,
based on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent
functions):
a) all significant deficiencies in the design or operation of internal
controlover financial reporting which are reasonably likely to adversely
affect the registrant's ability to record, process, summarize and report
financial information; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
control over financial reporting.
Date: May 2, 2012 /s/John D. Klopfenstein
Controller and Chief Accounting
Officer
EX-32
7
ex32.txt
SECTION 906 CERTIFICATION
Exhibit 32
CERTIFICATION UNDER SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, each of the
undersigned certifies that this periodic report fully complies with the
requirements of Section 13(a) or 15(d) of the Securities Exchange Act of
1934 and that information contained in this periodic report fairly
presents, in all material respects, the financial condition and results
of operations of Patriot Transportation Holding, Inc.
May 2, 2012 PATRIOT TRANSPORTATION HOLDING, INC.
THOMPSON S. BAKER II
Thompson S. Baker II
President and Chief Executive
Officer
JOHN D. MILTON, JR._
John D. Milton, Jr.
Executive Vice President,
Treasurer, Secretary and
Chief Financial Officer
JOHN D. KLOPFENSTEIN
John D. Klopfenstein
Controller and Chief
Accounting Officer
A signed original of this written statement required by Section 906 has been
provided to Patriot Transportation Holding, Inc. and will be retained by
Patriot Transportation Holding, Inc. and furnished to the Securities and
Exchange Commission or its staff upon request.
The foregoing certification accompanies the issuer's Quarterly report on
Form 10-Q and is not filed as provided in SEC Release Nos. 33-8212, 34-4751
and IC-25967, dated June 30, 2003.
10-Q
8
patrmarq12.pdf
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