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EXHIBIT C
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LIMITED PARTNERSHIP INTEREST PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
FIRST WASHINGTON REALTY TRUST, INC.
AS ASSIGNOR
AND
USRP LP, LLC
AS ASSIGNEE
DATED AS OF SEPTEMBER 27, 2000
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TABLE OF CONTENTS
PAGE
1. Assignment and Assumption of Limited Partnership Interest..............2
1.1. Assignment and Assumption........................................2
1.2. Limited Partnership Interest Purchase Price......................2
1.3. Closing..........................................................2
2. Conditions to Closing..................................................3
2.1. Conditions Precedent to Assignor's Obligation....................3
2.2. Conditions Precedent to Assignee's Obligation....................3
3. Deliveries.............................................................4
3.1. Deliveries by Assignee...........................................4
3.2. Deliveries by Assignor...........................................4
4. Representations and Warranties.........................................4
4.1. Assignee's Representations and Warranties........................4
4.2. Assignor's Representations and Warranties........................5
5. Miscellaneous..........................................................5
5.1. Survival.........................................................5
5.2. Miscellaneous Provisions.........................................5
LIST OF EXHIBITS:
Exhibit A Assignment and Assumption of Limited Partnership Interest
(i)
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LIMITED PARTNERSHIP INTEREST PURCHASE AND SALE AGREEMENT
THIS LIMITED PARTNERSHIP INTEREST PURCHASE AND SALE AGREEMENT (this
"AGREEMENT") is made and entered into as of September 27, 2000, by and between
First Washington Realty Trust, Inc., a Maryland corporation ("ASSIGNOR"), and
USRP LP, LLC, a Delaware limited liability company ("ASSIGNEE"). All capitalized
terms used herein without definition have the meanings ascribed to such terms in
the Merger Agreement (as defined below).
R E C I T A L S
WHEREAS, Assignor, First Washington Realty Limited Partnership, a Maryland
limited partnership and the principal subsidiary of Assignor ("FWOP"), and
certain of their subsidiaries have entered into a certain Real Estate Purchase
Agreement with USRP I, LLC, a Delaware limited liability company, as purchaser,
on the date hereof (the "REAL ESTATE PURCHASE AGREEMENT");
WHEREAS, Assignor and FWOP have entered into a certain Merger Agreement
(the "MERGER AGREEMENT") pursuant to which (x) Assignor has agreed to merge with
and into USRP GP, LLC, a Delaware limited liability company, ("MERGERCO") and
(y) FWOP has agreed to merge with and into US Retail Partners Limited
Partnership, a Delaware limited partnership ("MERGERLP"), all subject to the
terms and conditions specified therein (collectively, the "MERGERS");
WHEREAS, simultaneously with the execution of the Merger Agreement and the
Real Estate Purchase Agreement, Assignor, FWOP and certain of their
subsidiaries, have entered into a certain Master Agreement with MergerCo,
MergerLP, USRP I, LLC, and U.S. Retail Partners, LLC (the "MASTER AGREEMENT"),
subject to the terms and conditions set forth therein;
WHEREAS, as a further condition to the Mergers, FWOP will distribute to
its partners, in accordance with Section 13.2 of the First Amended and Restated
Agreement of Limited Partnership of FWOP (the "FWOP PARTNERSHIP AGREEMENT"), the
net proceeds of the Sale of Assets (as defined in the Merger Agreement) pursuant
to the terms of, and promptly after the consummation of the transactions
contemplated by, the Real Estate Purchase Agreement (the "PARTNERSHIP
DISTRIBUTION") and, prior to the Closing under this Agreement, the Company shall
have distributed a liquidation distribution (including, without limitation, the
amount received by the Company in the Partnership Distribution) to its
stockholders;
WHEREAS, as a condition to the Mergers, and subject to the approval of the
limited partners of FWOP, FWOP has agreed to recapitalize its existing
partnership interests in the manner described in the Merger Agreement (the
"RECAPITALIZATION");
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WHEREAS, as a result of the Recapitalization, Assignor will own a 1%
general partnership interest in FWOP (the "GENERAL PARTNERSHIP INTEREST") and
its then remaining interest as the holder of the Series A Common Units in FWOP
(the "LIMITED PARTNERSHIP INTEREST") (collectively, the "PARTNERSHIP
INTERESTS");
WHEREAS, after the Initial Partner Distribution has been made and after
all other conditions precedent to the Mergers have been satisfied but
immediately prior to the Merger, Assignor desires to sell and assign to Assignee
all of Assignor's right, title and interest in, to and under the Limited
Partnership Interest, and Assignee desires to buy and assume of all Assignor's
right, title and interest in, to and under the Limited Partnership Interest,
subject to the terms and conditions specified herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and certain other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Assignor and Assignee agree as
follows:
A G R E E M E N T
1. ASSIGNMENT AND ASSUMPTION OF LIMITED PARTNERSHIP INTEREST.
1.1. ASSIGNMENT AND ASSUMPTION. Upon and subject to the terms
and conditions hereinafter set forth, Assignor shall assign and Assignee
shall assume all of Assignor's right, title and interest in and to the
Limited Partnership Interest.
1.2. LIMITED PARTNERSHIP INTEREST PURCHASE PRICE. The purchase price
(the "PARTNERSHIP INTEREST PURCHASE PRICE") for the Limited Partnership Interest
shall be an amount, rounded to the nearest cent, equal to (i) the sum of (A)
$83,166,740 and (B) the difference (it being understood that if the amount
described in the following clause (1) is less than the amount described in the
following clause (2), then such difference shall be subtracted from, rather than
added to, the amount described in the preceding clause (A)), if any, between (1)
the aggregate amount of the outstanding balance (including principal and any
accrued and unpaid interest) of the Assumed Loans for the Merger Agreement
Properties (as such terms are defined in the Master Agreement) set forth on
Exhibit 2.1(c) of the Merger Agreement, and (2) the aggregate amount of the
outstanding balance (including principal and any accrued and unpaid interest) of
the Assumed Loans for the Merger Agreement Properties on the Closing Date
(excluding for this purpose the $3,000,000 loan on the Woodmoor property
referred to in Section 8.2(n) of the Merger Agreement), multiplied by (ii) the
Percentage Interest (as defined in the FWOP Partnership Agreement) represented
by the Limited Partnership Interest on the Closing Date. The Partnership
Interest Purchase Price shall be evidenced by a promissory note made by the
Assignee and delivered to the Assignor with such terms as are reasonably agreed
to by the parties (the "NOTE").
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1.3. CLOSING. For purposes of this Agreement, the closing of the
transactions contemplated by this Agreement ("CLOSING") shall occur immediately
prior to the consummation of the Mergers, on the date (the "CLOSING DATE") on
which all conditions specified in Section 6.1, 6.2 and 6.3 of the Master
Agreement and as set forth below have been satisfied or waived.
2. CONDITIONS TO CLOSING.
2.1. CONDITIONS PRECEDENT TO ASSIGNOR'S OBLIGATION. The
obligation of Assignor to close shall be subject to the satisfaction of, or
Assignor's waiver of, the following conditions precedent and each of the
conditions set forth in Sections 6.1 and 6.3 of the Master Agreement:
2.1.1. ASSIGNEE'S DELIVERIES. Assignee shall have
executed and delivered or caused to be delivered to Assignor, as the
case may be, the Note and the other documents and instruments described
in Paragraph 3.1 as and when specified therein;
2.1.2. ASSIGNEE'S PERFORMANCE. Assignee shall have
performed, satisfied and complied with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or
complied with by Assignee on or before the Closing Date; and
2.1.3. CONSUMMATION OF REAL ESTATE PURCHASE
AGREEMENT. All transactions contemplated by the Real Estate Purchase
Agreement shall have been consummated;
2.1.4. APPROVAL OF RECAPITALIZATION. The limited
partners of FWOP shall have consented to and approved the
Recapitalization; and
2.1.5. SATISFACTION OF ALL OTHER CONDITIONS. All conditions
set forth in Sections 8.1 and 8.3 of the Merger Agreement shall have been
satisfied or waived.
2.2. CONDITIONS PRECEDENT TO ASSIGNEE'S OBLIGATION. The
obligation of Assignee to close shall be subject to the satisfaction of,
or Assignee's waiver of, the following conditions precedent and each of
the conditions set forth in Sections 6.1 and 6.2 of the Master Agreement:
2.2.1. CONSUMMATION OF REAL ESTATE PURCHASE
Agreement. All transactions contemplated by the Real Estate Purchase
Agreement shall have been consummated;
2.2.2. APPROVAL OF RECAPITALIZATION. The limited
partners of FWOP shall have consented to and approved the
Recapitalization;
2.2.3. RECAPITALIZATION. The Recapitalization shall
have occurred;
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2.2.4. SATISFACTION OF ALL OTHER CONDITIONS. All
conditions set forth in Sections 8.1 and 8.2 of the Merger Agreement
shall have been satisfied or waived;
2.2.5. ASSIGNOR'S DELIVERIES. Assignor shall have
delivered or caused to be delivered to Assignee, the documents
described in Paragraph 3.2 as and when specified therein; and
2.2.6. ASSIGNOR'S PERFORMANCE. Assignor shall have
performed, satisfied and complied with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or
complied with by Assignor on or before the Closing Date.
3. DELIVERIES.
3.1. DELIVERIES BY ASSIGNEE. Assignee shall execute and deliver
or cause to be executed and delivered to Assignor each of the following items:
3.1.1. The Note;
3.1.2. The Assignment and Assumption of Limited
Partnership Interest duly executed by Assignee, substantially in the
form attached hereto as Exhibit A (the "ASSIGNMENT AND ASSUMPTION OF
LIMITED PARTNERSHIP INTEREST");
3.1.3. Such other documents as are reasonably
necessary to effectuate the terms of this Agreement.
3.2. DELIVERIES BY ASSIGNOR. Assignor shall deliver or cause to
be delivered to Assignee each of the following items:
3.2.1. The Assignment and Assumption of Limited
Partnership Interest duly executed by Assignor; and
3.2.2. Such other documents as are reasonably
necessary to effectuate the terms of this Agreement.
4. REPRESENTATIONS AND WARRANTIES.
4.1. ASSIGNEE'S REPRESENTATIONS AND WARRANTIES. In consideration of
Assignor entering into this Agreement and as an inducement to Assignor to sell
Assignor's interest in the Limited Partnership Interest to Assignee, Assignee
represents and warrants to Assignor as to each of the matters described in
Section 5 of the Master Agreement, with the same force and effect as if such
representations and warranties were set forth herein, and such representations
and warranties are hereby incorporated by reference herein.
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4.2. ASSIGNOR'S REPRESENTATIONS AND WARRANTIES. In consideration of
Assignee entering into this Agreement and as an inducement to Assignee to
purchase Assignor's interest in the Limited Partnership Interest, Assignor
represents and warrants to Assignee as to each of the matters described in
Section 4 of the Master Agreement, with the same force and effect as if such
representations and warranties were set forth herein, and such representations
and warranties are hereby incorporated by reference herein.
5. MISCELLANEOUS.
5.1. SURVIVAL. None of the warranties, representations, covenants,
obligations and agreements contained in this Agreement or instruments delivered
pursuant to this Agreement shall survive the Closing and thereafter there shall
be no liability on the part of Assignor or Assignee in respect thereof.
5.2. MISCELLANEOUS PROVISIONS. The provisions of Section 11.1
through Section 11.22 of the Master Agreement are incorporated herein by
reference with the same force and effect as if set forth herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement day and year
first above written.
FIRST WASHINGTON REALTY TRUST, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO
USRP LP, LLC
By: U.S. RETAIL PARTNERS, LLC,
its sole member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P.
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EXHIBIT A
ASSIGNMENT AND ASSUMPTION OF LIMITED PARTNERSHIP INTEREST
This ASSIGNMENT AND ASSUMPTION OF LIMITED PARTNERSHIP INTEREST (this
"ASSIGNMENT") is made as of [ ] by FIRST WASHINGTON REALTY TRUST, INC.
("ASSIGNOR"), in favor of USRP LP, LLC ("ASSIGNEE").
Assignor hereby assigns, sets over, transfers, grants and conveys
unto Assignee all of Assignor's right, title and interest as holder of the
Series A Common Units in FWOP (collectively, the "PARTNERSHIP INTEREST"), and
Assignee hereby assumes the performance of all obligations to be performed by
the Assignor from and after the date hereof pursuant to the First Amended and
Restated Agreement of Limited Partnership of FWOP dated as of June 27, 1994, as
amended.
The foregoing assignment, setting over, transfer, grant and
conveyance are made without representation or warranty of any kind or nature
whatsoever, except as may otherwise be expressly set forth in that certain
Limited Partnership Interest Purchase and Sale Agreement by and between Assignor
and Assignee dated as of September 27, 2000.
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Exh. A-1
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the date first above written.
ASSIGNOR: FIRST WASHINGTON REALTY TRUST, INC.
By:
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Name:
Title:
ASSIGNEE: USRP LP, LLC
By: U.S. RETAIL PARTNERS, LLC,
its sole member
By:
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Name:
Title: