<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
NOVEMBER 3, 1995
(Date of Report)
Date of earliest event reported: October 30, 1995
BRADLEY REAL ESTATE, INC.
(Exact name of Registrant as specified in its charter)
Maryland
(State or other jurisdiction of incorporation)
1-10378 04-6034603
(Commission File Number) (I.R.S. Employer Identification No.)
250 BOYLSTON STREET
BOSTON, MASSACHUSETTS 02116
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(617) 421-0750
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ITEM 5. OTHER EVENTS.
On October 30, 1995, Bradley Real Estate, Inc. ("Bradley") and Tucker
Properties Corporation ("Tucker") entered into a merger agreement (the
"Agreement") whereby (i) Tucker will merge with and into Bradley, (ii) the
separate corporate existence of Tucker will cease, and (iii) Bradley will
become the surviving corporation (the "Merger"). The Agreement is attached
hereto as EXHIBIT 2.1 and is incorporated herein by reference. As a result of
the consummation of the Merger, Bradley will acquire the general partnership
interests and those limited partnership units in the Tucker Operating Limited
Partnership ("TOP") which are currently owned by Tucker. At the effective
time of the Merger, the Agreement of Limited Partnership of TOP will be
amended and restated in the form attached hereto as EXHIBIT 10.1 (such form is
incorporated herein by reference). The joint press release issued by Bradley
and Tucker in connection with the execution of the Agreement is attached
hereto as EXHIBIT 99.1 and is incorporated herein by reference.
Pursuant to the terms of the Agreement, if the average closing price of
Bradley common stock for the twenty trading days prior to the fifth day
preceding the closing is $16.00 or more, each share of Tucker common stock
will be exchanged for 0.665 of a share of Bradley common stock. If such
average closing price is between $15.50 and $16.00, the exchange ratio will be
$10.64 divided by the average closing price. If the average closing price is
less than $15.50, the exchange ratio will be 0.686.
The Agreement has been unanimously approved by the Board of Directors of both
Bradley and Tucker. The Merger is subject to various approvals by third
parties and other closing conditions including approval by the stockholders of
both companies. It is currently anticipated that the Merger will be closed in
the first quarter of 1996.
E. Lawrence Miller, Bradley's president and chief executive officer, will
serve as president and chief executive officer of the combined entity, and
Thomas D'Arcy and Richard Heuer will remain executive vice presidents of
Bradley. The composition of Bradley's board of directors will remain the same
following the consummation of the transaction.
In connection with the execution of the Agreement, Tucker has adopted the
Tucker Properties Corporation Severance Pay Plan (a copy of which is attached
hereto as EXHIBIT 10.2 and is incorporated herein by reference) and has
entered into individual severance agreements with the following individuals:
Kenneth Tucker, Richard Tucker, Harold Eisenberg, Norris Eber, Larry Tucker
and William Karnes (copies of which are attached hereto as EXHIBIT 10.3
through EXHIBIT 10.8 and are incorporated herein by reference). Upon
consummation of the Merger, Bradley will assume and be bound by the Tucker
Properties Corporation Severance Pay Plan and the individual severance
agreements. In addition, Kenneth Tucker has agreed to enter into a consulting
agreement with Bradley (a copy of which is attached hereto as EXHIBIT 10.9 and
is incorporated herein by reference).
2
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements of Business Acquired: Not Applicable
(b) Pro Forma Financial Information: Not Applicable
(c) Exhibits:
2.1 Agreement and Plan of Merger between Bradley Real Estate, Inc. and
Tucker Properties Corporation, dated as of October 30, 1995
10.1 Form of Amended and Restated Agreement of Limited Partnership of
Bradley Operating Limited Partnership
10.2 Tucker Properties Corporation Severance Pay Plan, dated October 29,
1995
10.3 Severance Agreement between Tucker Properties Corporation and Kenneth
Tucker
10.4 Severance Agreement between Tucker Properties Corporation and Richard
Tucker
10.5 Severance Agreement between Tucker Properties Corporation and Harold
Eisenberg
10.6 Severance Agreement between Tucker Properties Corporation and Norris
Eber
10.7 Severance Agreement between Tucker Properties Corporation and Lawrence
Tucker
10.8 Severance Agreement between Tucker Properties Corporation and William
Karnes
10.9 Form of Consulting Agreement between Bradley Real Estate, Inc. and
Kenneth Tucker
99.1 Press Release dated October 30, 1995
3
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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 hereunto duly authorized.
Date: November 3, 1995 BRADLEY REAL ESTATE, INC.
By: /s/ E. LAWRENCE MILLER
-----------------------
E. Lawrence Miller
President and
Chief Executive Officer
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<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit Page
<S> <C> <C>
2.1 Agreement and Plan of Merger between Bradley Real 6
Estate, Inc. and Tucker Properties Corporation, dated
as of October 30, 1995
10.1 Form of Amended and Restated Agreement of Limited 68
Partnership of Bradley Operating Limited Partnership
10.2 Tucker Properties Corporation Severance Pay Plan, 120
dated October 29, 1995
10.3 Severance Agreement between Tucker Properties Corporation 129
and Kenneth Tucker
10.4 Severance Agreement between Tucker Properties Corporation 134
and Richard Tucker
10.5 Severance Agreement between Tucker Properties Corporation and 139
Harold Eisenberg
10.6 Severance Agreement between Tucker Properties Corporation and 144
Norris Eber
10.7 Severance Agreement between Tucker Properties Corporation and 149
Lawrence Tucker
10.8 Severance Agreement between Tucker Properties Corporation and 154
William Karnes
10.9 Form of Consulting Agreement between Bradley Real Estate, Inc. 157
and Kenneth Tucker
99.1 Press Release dated October 30, 1995 161
</TABLE>
5
<PAGE> 1
Exhibit 2.1
================================================================================
AGREEMENT AND PLAN OF MERGER
between
BRADLEY REAL ESTATE, INC.
and
TUCKER PROPERTIES CORPORATION
Dated as of October 30, 1995
================================================================================
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<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
----
<S> <C> <C>
1. The Merger and Amendment of Tucker Partnership Agreement..................... 1
1.1 The Merger.............................................................. 1
1.2 The Closing............................................................. 1
1.3 Effective Time.......................................................... 2
1.4 Amendment of Tucker Operating Limited Partnership Agreement............. 2
1.5 Transfer of Securities of Tucker Management Corporation................. 2
1.6 Amendments of Governing Documents of Tucker Subsidiaries................ 2
1.7 Release and Termination................................................. 3
1.8 Severance Pay Plan and Agreements....................................... 3
2. Charter and Bylaws of the Surviving Corporation.............................. 3
2.1 Charter................................................................. 3
2.2 Bylaws.................................................................. 3
3. Directors and Officers of the Surviving Corporation.......................... 3
3.1 Directors............................................................... 3
3.2 Officers................................................................ 4
4. Tucker Stock................................................................. 4
4.1 Conversion of the Tucker Stock.......................................... 4
4.2 Exchange of Certificates Representing Tucker Common Stock............... 5
4.3 Return of Exchange Fund................................................. 7
5. Representations and Warranties of Tucker..................................... 7
5.1 Existence; Good Standing; Authority; Compliance With Law................ 7
5.2 Authorization, Validity and Effect of Agreements........................ 8
5.3 Capitalization.......................................................... 9
5.4 Subsidiaries............................................................ 11
5.5 Other Interests......................................................... 11
5.6 No Violation............................................................ 12
5.7 SEC Documents........................................................... 12
5.8 Litigation.............................................................. 13
5.9 Absence of Certain Changes.............................................. 13
5.10 Taxes................................................................... 14
5.11 Books and Records....................................................... 15
5.12 Properties.............................................................. 15
5.13 Leases.................................................................. 17
5.14 Rents................................................................... 18
5.15 Environmental Matters................................................... 18
5.16 Employee Benefit Plans.................................................. 19
</TABLE>
(i)
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<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
5.17 Labor Matters.......................................................... 20
5.18 No Brokers............................................................. 20
5.19 Opinion of Financial Advisor........................................... 20
5.20 Bradley Share Ownership................................................ 20
5.21 Related Party Transactions............................................. 20
5.22 Contracts and Commitments.............................................. 21
5.23 Development Rights..................................................... 21
5.24 Certain Payments Resulting From Transactions........................... 21
5.25 Indemnification Claims................................................. 22
5.26 Disclosure............................................................. 22
5.27 Status of Holden Court and Holden Court Escrow......................... 22
5.28 Tenant Improvements.................................................... 22
5.29 Status of Options to Purchase Real Property............................ 22
5.30 Definition of Tucker's Knowledge....................................... 23
6. Representations and Warranties of Bradley................................... 23
6.1 Existence; Good Standing; Authority; Compliance With Law............... 23
6.2 Authorization, Validity and Effect of Agreements....................... 24
6.3 Capitalization......................................................... 24
6.4 Subsidiaries........................................................... 25
6.5 Other Interests........................................................ 25
6.6 No Violation........................................................... 25
6.7 SEC Documents.......................................................... 25
6.8 Litigation............................................................. 26
6.9 Absence of Certain Changes............................................. 27
6.10 Taxes.................................................................. 27
6.11 Books and Records...................................................... 28
6.12 Properties............................................................. 28
6.13 Environmental Matters.................................................. 29
6.14 Employee Benefit Plans................................................. 30
6.15 Labor Matters.......................................................... 30
6.16 No Brokers............................................................. 31
6.17 Opinion of Financial Advisor........................................... 31
6.18 Tucker Stock Ownership................................................. 31
6.19 Related Party Transactions............................................. 31
6.20 Contracts and Commitments.............................................. 31
6.21 Development Rights..................................................... 32
6.22 Bradley Common Stock................................................... 32
6.23 Convertible Securities................................................. 32
6.24 Disclosure............................................................. 32
6.25 Definition of Bradley's Knowledge...................................... 32
7. Covenants................................................................... 33
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
7.1 Acquisition Proposals................................................. 33
7.2 Conduct of Businesses................................................. 34
7.3 Meetings of Stockholders.............................................. 36
7.4 Filings; Other........................................................ 37
7.5 Inspection of Records................................................. 38
7.6 Publicity............................................................. 38
7.7 Registration Statement................................................ 38
7.8 Listing Application................................................... 39
7.9 Further Action........................................................ 39
7.10 Affiliates of Tucker.................................................. 39
7.11 Expenses.............................................................. 40
7.12 Indemnification....................................................... 40
7.13 Reorganization........................................................ 42
7.14 Certain Benefits...................................................... 42
7.15 Dividends............................................................. 43
7.16 IRS Private Letter Ruling............................................. 44
8. Conditions.................................................................. 44
8.1 Conditions to Each Party's Obligation to Effect the Merger............ 44
8.2 Conditions to Obligations of Tucker to Effect the Merger.............. 45
8.3 Conditions to Obligation of Bradley to Effect the Merger.............. 46
9. Termination................................................................. 47
9.1 Termination........................................................... 47
9.2 Effect of Termination................................................. 49
9.3 Payment of Termination Amount or Expenses............................. 50
9.4 Extension; Waiver..................................................... 51
10. General Provisions......................................................... 51
10.1 Nonsurvival of Representations, Warranties and Agreements............ 51
10.2 Notices............................................................... 52
10.3 Assignment; Binding Effect; Benefit................................... 52
10.4 Entire Agreement...................................................... 53
10.5 Confidentiality....................................................... 53
10.6 Amendment............................................................. 54
10.7 Governing Law......................................................... 54
10.8 Counterparts......................................................... 54
10.9 Headings.............................................................. 55
10.10 Interpretation........................................................ 55
10.11 Waivers............................................................... 55
10.12 Incorporation......................................................... 55
10.13 Severability......................................................... 55
10.14 Enforcement of Agreement.............................................. 55
10.15 Certain Definitions................................................... 55
10.16 Schedules............................................................. 56
</TABLE>
(iii)
<PAGE> 5
EXHIBIT A - Form of Amended and Restated Agreement of Limited Partnership
of Bradley Operating Limited Partnership Agreement
EXHIBIT B-1 - Consents of Limited Partner of Tucker Operating Limited
Partnership
EXHIBIT B-2 - Consent of General Partner of Tucker Operating Limited
Partnership
EXHIBIT B-3 - Acknowledgment of Bradley Real Estate, Inc. to the Amended
and Restated Agreement of Limited Partnership of Tucker
Operating Limited Partnership
EXHIBIT C - Intentionally Omitted
EXHIBIT D - Form of Affiliate Letter
EXHIBIT E - Form of Tenant's Estoppel Certificate
EXHIBIT F - Purchase and Sale of Securities
EXHIBIT G - Tucker Properties Corporation Severance Pay Plan
EXHIBIT H-1 - Form of First Amendment to Indemnification Agreement
EXHIBIT H-2 - Acknowledgment of Bradley Real Estate, Inc. to the First
Amendment of the Indemnification Agreements
EXHIBIT I - Form of Seventh Amendment to Agreement of Limited Partnership of
Tucker Operating Limited Partnership Agreement
EXHIBIT J - Severance Agreements
EXHIBIT K - Consulting Agreement with Kenneth Tucker
Schedules
- ---------
Schedule 1.7 Contracts to be Released
Schedule 5.2 Ancillary Agreements
Schedule 7.12 Tucker's Directors' and Officers' Insurance Coverage
Schedule 8.1(f) Required Consents
Schedule 8.3(f) Leases and REA Agreements Requiring Estoppel Certificates
(iv)
<PAGE> 6
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of October 30, 1995, between Bradley Real Estate, Inc., a Maryland
corporation ("Bradley"), and Tucker Properties Corporation, a Maryland
corporation ("Tucker").
RECITALS
A. The Board of Directors of Bradley and the Board of Directors of
Tucker each have determined that a business combination between Bradley and
Tucker is in the best interests of their respective companies and stockholders
and presents an opportunity for their respective companies to achieve long-term
strategic and financial benefits, and accordingly have agreed to effect the
merger provided for herein upon the terms and subject to the conditions set
forth herein.
B. It is intended that the merger provided for herein, for federal
income tax purposes, shall qualify as a reorganization within the meaning of
Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the
"Code"), and for financial accounting purposes shall be accounted for as a
"purchase."
C. Bradley and Tucker have each received a fairness opinion from their
respective financial advisors relating to the transactions contemplated hereby
as more fully described herein.
D. Bradley and Tucker desire to make certain representations, warranties
and agreements in connection with the merger.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
1. The Merger and Amendment of Tucker Partnership Agreement.
---------------------------------------------------------
1.1 THE MERGER. Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined in Section 1.3 hereof), Tucker shall be
merged with and into Bradley in accordance with this Agreement and the separate
corporate existence of Tucker shall thereupon cease (the "Merger"). Bradley
shall be the surviving corporation in the Merger (sometimes hereinafter
referred to as the "Surviving Corporation"). The Merger shall have the effects
specified in Section 3-114 of the Maryland General Corporation Law (the
"MGCL").
1.2 THE CLOSING. Subject to the terms and conditions of this Agreement,
the closing of the Merger (the "Closing") shall take place (a) at the offices
of Goodwin, Procter & Hoar,
<PAGE> 7
Exchange Place, Boston, Massachusetts, at 9:00 a.m., local time, on the first
business day immediately following the day on which the last of the
conditions set forth in Article 8 shall be fulfilled or waived in accordance
herewith or (b) at such other time, date or place as the parties hereto may
agree. The date on which the Closing occurs is hereinafter referred to as the
"Closing Date."
1.3 EFFECTIVE TIME. If all the conditions to the Merger set forth in
Article 8 shall have been fulfilled or waived in accordance herewith and this
Agreement shall not have been terminated as provided in Article 9, the parties
hereto shall cause Articles of Merger satisfying the requirements of the MGCL
to be properly executed, verified and delivered for filing in accordance with
the MGCL on the Closing Date. The Merger shall become effective upon the
acceptance for record of the Articles of Merger by the State Department of
Assessments and Taxation of Maryland in accordance with the MGCL or at such
later time which the parties hereto shall have agreed upon and designated in
such filing in accordance with applicable law as the effective time of the
Merger (the "Effective Time").
1.4 AMENDMENT OF TUCKER OPERATING LIMITED PARTNERSHIP AGREEMENT. As a
result of the consummation of the Merger, Bradley will acquire the general
partnership interests and those limited partnership units ("TOP Units") in the
Tucker Operating Limited Partnership, a Delaware limited partnership ("TOP"),
which are currently owned by Tucker. In connection with the consummation of
the Merger, the Limited Partnership Agreement of TOP (the "TOP Partnership
Agreement") will be amended and restated substantially in the form of Exhibit A
hereto. The execution of such agreement by Tucker will be authorized by a
majority of Tucker's independent directors who are not affiliates of any of the
Limited Partners (as such term is defined in the TOP Partnership Agreement).
Concurrently with the execution of this Agreement, Tucker and Limited Partners
of TOP holding at least 386,984 TOP Units will execute an agreement in the form
of Exhibit B hereto consenting to, among other things, the Merger and the
amendment and restatement, effective as of the Effective Time, of the TOP
Partnership Agreement.
1.5 TRANSFER OF SECURITIES OF TUCKER MANAGEMENT CORPORATION. In
connection with the consummation of the Merger, a designee or designees of
Bradley will acquire from Kenneth Tucker and Richard Tucker (collectively, the
"Tuckers") all of the outstanding securities of Tucker Management Corporation
("TMC") (other than securities owned by TOP). Concurrently with the execution
of this Agreement, the Tuckers will execute an agreement in the form of Exhibit
F hereto agreeing, among other things, to such transfer, effective as of the
Effective Time.
1.6 AMENDMENTS OF GOVERNING DOCUMENTS OF TUCKER SUBSIDIARIES. In
connection with the Closing, the Articles of Incorporation, Bylaws, partnership
agreements and equivalent documents for the Tucker Subsidiaries (as defined in
Section 5.1 hereof) will be amended to change the name of the entity (and, six
months after the Effective Time, no such entity shall use the name "Tucker")
and to make certain other changes to such documents in order to reflect the
Merger and the transactions contemplated by this Agreement. Tucker and the
Tucker Subsidiaries will take all actions which are necessary to effectuate
such amendments and will use their best efforts to cause all of the
stockholders in any Tucker Subsidiary and all
2
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of the partners in any Tucker Subsidiary to approve such amendments and to take
such other actions to effectuate such amendments and the transactions
contemplated by this Agreement as may be reasonably requested by Bradley.
1.7 RELEASE AND TERMINATION. Concurrently with the execution of this
Agreement, the parties listed on Schedule 1.7 hereto will execute releases
providing for, among other things, the termination of all contracts and
agreements listed on Schedule 1.7 hereto. Pursuant to such releases, all such
contracts shall be terminated and released, effective as of the Effective Time,
and the parties to such contracts agree to waive any and all rights they may
have under such contracts or agreements.
1.8 SEVERANCE PAY PLAN AND AGREEMENTS. In connection with the execution
of this Agreement, Tucker has adopted the Tucker Properties Corporation
Severance Pay Plan (the "Severance Plan") for its employees, as set forth in
Exhibit G hereto, and, prior to the Effective Time, Tucker will use its
reasonable best efforts to enter into individual employment or severance
agreements (the "Severance Agreements") with the following employees: Kenneth
Tucker, Richard Tucker, Harold Eisenberg, Norris Eber, Larry Tucker and William
Karnes, in the respective forms set forth in Exhibit J hereto and a consulting
agreement with Kenneth Tucker in the form set forth in Exhibit K hereto.
Bradley agrees that after the Effective Time, it will assume and be bound by
the terms of the Severance Plan and Severance Agreements. Prior to the
Effective Time, and as soon as practicable after this Agreement is signed,
Tucker shall supply Bradley with the calculation of the actual severance
payments that would be payable pursuant to the Severance Agreements assuming
the covered individual's employment terminated in a Covered Termination (as
defined in the Severance Agreements).
ARTICLE 2
2. Charter and Bylaws of the Surviving Corporation.
------------------------------------------------
2.1 CHARTER. The Charter (as defined in the MGCL) of Bradley in effect
immediately prior to the Effective Time shall be the Charter of the Surviving
Corporation, until duly amended in accordance with applicable law.
2.2 BYLAWS. The Bylaws of Bradley in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation, until duly
amended in accordance with applicable law.
ARTICLE 3
3. Directors and Officers of the Surviving Corporation.
----------------------------------------------------
3.1 DIRECTORS. The directors of Bradley immediately prior to the
Effective Time shall be the directors of the Surviving Corporation as of the
Effective Time.
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3.2 OFFICERS. The officers of Bradley immediately prior to the Effective
Time shall be the officers of the Surviving Corporation as of the Effective
Time.
ARTICLE 4
4. Tucker Stock.
-------------
4.1 CONVERSION OF THE TUCKER STOCK.
(a) At the Effective Time, each share of the Common Stock, $.01 par
value per share, of Bradley ("Bradley Common Stock") outstanding immediately
prior to the Effective Time shall remain outstanding and shall represent one
share of the Common Stock, $.01 par value per share, of the Surviving
Corporation.
(b) At the Effective Time, each share of Common Stock, par value
$.001 per share, of Tucker (the "Tucker Common Stock") issued and outstanding
immediately prior to the Effective Time (other than those shares of Tucker
Common Stock to be canceled pursuant to Section 4.1(d)) shall, by virtue of the
Merger and without any action on the part of Tucker, Bradley or the holders of
any of the securities of any of these corporations, be converted into the right
to receive 0.665 of a share of Bradley Common Stock; provided, however, that in
the event that at the Effective Time the Closing Price (as such term is
hereinafter defined) of a share of Bradley Common Stock is less than $16 per
share but more than $15.50 per share, then each share of Tucker Common Stock
will be converted into the right to receive that percentage of a share of
Bradley Common Stock (determined to the nearest one-thousandth of a share) as
is determined by dividing $10.64 by the Closing Price; and provided, further,
that in the event that at the Effective Time, the Closing Price of a share of
Bradley Common Stock is $15.50 per share or less, then each share of Tucker
Common Stock will be converted into the right to receive 0.686 of a share of
Bradley Common Stock (the applicable percentage of a share of Bradley Common
Stock to be issued upon such conversion is hereinafter referred to as the
"Exchange Ratio"); and provided further that if between the date of this
Agreement and the Effective Time the outstanding shares of Bradley Common Stock
shall have been changed into a different number of shares or a different class
or series, by reason of any stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares, the Exchange Ratio
shall be correspondingly adjusted to reflect such stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of shares.
For purposes of this Agreement, the term "Closing Price" shall mean the average
per share closing price of Bradley Common Stock as reported on the New York
Stock Exchange ("NYSE") over the twenty (20) trading days immediately preceding
the fifth (5th) day prior to the date of the Closing.
(c) As a result of the Merger and without any action on the part of
the holder thereof, at the Effective Time, all shares of Tucker Common Stock
shall cease to be outstanding, shall be canceled and retired and shall cease to
exist and each holder of a certificate (a "Certificate") representing any
shares of Tucker Common Stock shall thereafter cease to have any rights with
respect to such shares of Tucker Common Stock, except the right
4
<PAGE> 10
to receive, without interest, shares of Bradley Common Stock and cash in lieu of
fractional shares of Bradley Common Stock in accordance with Sections 4.1(b)
and 4.2(e) upon the surrender of such Certificate.
(d) Each share of Tucker Common Stock issued and held in Tucker's
treasury at the Effective Time, if any, by virtue of the Merger, shall cease to
be outstanding, shall be canceled and retired and shall cease to exist and no
payment of any consideration shall be made with respect thereto.
(e) At the Effective Time, Tucker's obligations with respect to each
stock option set forth in Section 5.3 of the Tucker Disclosure Letter (as
defined in Article 5 hereof) that will not automatically terminate by its terms
at the Effective Time (the "Existing Tucker Options") shall be assumed by
Bradley (the "Assumed Options"), subject to the provisions and amendments
described in this Section. The Assumed Options shall continue to have, and be
subject to, the same terms and conditions as set forth in the stock option
plans and agreements (as in effect immediately prior to the Effective Time)
pursuant to which the Existing Tucker Options were issued, except that (i) all
references to Tucker shall be deemed to be references to Bradley, (ii) each
option shall be exercisable for that number of whole shares of Bradley Common
Stock equal to the product of the number of shares of Tucker Common Stock
covered by such option immediately prior to the Effective Time multiplied by
the Exchange Ratio and rounded to the nearest whole number of shares of Bradley
Common Stock and (iii) the exercise price per share of Bradley Common Stock
under such option shall be equal to the exercise price per share of Tucker
Common Stock under the Existing Tucker Option divided by the Exchange Ratio and
rounded to the nearest cent. The adjustment provided herein with respect to
any Existing Tucker Options that are "incentive stock options" (as defined in
Section 422 of the Code) shall be and is intended to be effected in a manner
that is consistent with Section 424(a) of the Code. Bradley shall (i) reserve
for issuance the number of shares of Bradley Common Stock that will become
issuable upon the exercise of such Assumed Options pursuant to this Section
4.1(e) and (ii) promptly after the Effective Time issue to each holder of an
outstanding Existing Tucker Option a document evidencing the assumption by
Bradley of Tucker's obligations with respect thereto under this Section.
Nothing in this Section or this Agreement shall affect the schedule of vesting
as set forth in Section 5.3 of the Tucker Disclosure Letter with respect to
Tucker Stock Options to be assumed by Bradley as provided in this Section.
4.2 EXCHANGE OF CERTIFICATES REPRESENTING TUCKER COMMON STOCK.
(a) As of the Effective Time, Bradley shall deposit, or shall cause
to be deposited, with an exchange agent selected by Bradley on or prior to the
Effective Time (the "Exchange Agent"), for the benefit of the holders of shares
of Tucker Common Stock, for exchange in accordance with this Article 4,
certificates representing the shares of Bradley Common Stock and the cash in
lieu of fractional shares (such cash and certificates for shares of Bradley
Common Stock being hereinafter referred to as the "Exchange Fund") to be issued
pursuant to Section 4.1 and paid pursuant to this Section 4.2 in exchange for
outstanding shares of Tucker Common Stock.
5
<PAGE> 11
(b) Promptly after the Effective Time, Bradley shall cause the
Exchange Agent to mail to each holder of record of a Certificate or
Certificates (i) a letter of transmittal which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon delivery of the Certificates to the Exchange Agent and shall be in
such form and have such other provisions as Bradley may reasonably specify and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing shares of Bradley Common Stock and cash
in lieu of fractional shares. Upon surrender of a Certificate for cancellation
to the Exchange Agent together with such letter of transmittal, duly executed
and completed in accordance with the instructions thereto, the holder of such
Certificate shall be entitled to receive in exchange therefor (x) a certificate
representing the number of whole shares of Bradley Common Stock to which such
holder shall be entitled, and (y) a check representing the amount of cash in
lieu of fractional shares, if any, plus the amount of any dividends, or
distributions, if any, pursuant to paragraph (c) below, after giving effect to
any required withholding tax, and the Certificate so surrendered shall
forthwith be canceled. No interest will be paid or accrued on the cash in lieu
of fractional shares or on the dividend or distribution, if any, payable to
holders of Certificates pursuant to this Section 4.2. In the event of a
transfer of ownership of Tucker Common Stock which is not registered in the
transfer records of Tucker, a Certificate representing the proper number of
shares of Bradley Common Stock, together with a check for the cash to be paid
in lieu of fractional shares plus, to the extent applicable, the amount of any
dividend or distribution, if any, payable pursuant to paragraph (c) below, may
be issued to such a transferee if the Certificate representing shares of such
Tucker Common Stock is presented to the Exchange Agent, accompanied by all
documents required to evidence and effect such transfer and to evidence that
any applicable stock transfer taxes have been paid.
(c) Notwithstanding any other provisions of this Agreement, no
dividends or other distributions on Bradley Common Stock shall be paid with
respect to any shares of Tucker Common Stock represented by a Certificate until
such Certificate is surrendered for exchange as provided herein; provided,
however, that subject to the effect of applicable laws, following surrender of
any such Certificate, there shall be paid to the holder of the certificates
representing whole shares of Bradley Common Stock issued in exchange therefor,
without interest, (i) at the time of such surrender, the amount of dividends or
other distributions with a record date after the Effective Time theretofore
payable with respect to such whole shares of Bradley Common Stock and not paid,
less the amount of any withholding taxes which may be required thereon, and
(ii) at the appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time but prior to
surrender and a payment date subsequent to surrender payable with respect to
such whole shares of Bradley Common Stock, less the amount of any withholding
taxes which may be required thereon.
(d) At and after the Effective Time, there shall be no transfers on
the stock transfer books of Tucker of the shares of Tucker Common Stock which
were outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to the Surviving Corporation, they
shall be canceled and exchanged for certificates for shares of Bradley Common
Stock and cash in lieu of fractional shares, if any, in accordance with this
Section 4.2. Certificates surrendered for exchange by any person constituting
an "affiliate" of Tucker for purposes of Rule 145, as such rule may be amended
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from time to time ("Rule 145"), of the rules and regulations promulgated under
the Securities and Exchange Act of 1933, as amended (the "Securities Act"),
shall not be exchanged until Bradley has received an Affiliate Letter in the
form of Exhibit D attached hereto, from such person as provided in Section 7.10.
(e) No fractional shares of Bradley Common Stock shall be issued
pursuant hereto. In lieu of the issuance of any fractional share of Bradley
Common Stock pursuant to Section 4.1(b), each holder of Tucker Common Stock
upon surrender of a Certificate for exchange shall be paid an amount in cash
(without interest), rounded to the nearest cent, determined by multiplying (i)
the Closing Price by (ii) the fraction of a share of Bradley Common Stock which
such holder would otherwise be entitled to receive under this Article 4.
4.3 RETURN OF EXCHANGE FUND. Any portion of the Exchange Fund (including
the proceeds of any investments thereof and any shares of Bradley Common Stock)
that remains unclaimed by the former stockholders of Tucker one year after the
Effective Time shall be delivered to the Surviving Corporation. Any former
stockholders of Tucker who have not theretofore complied with this Article 4
shall thereafter look only to the Surviving Corporation for payment of their
shares of Bradley Common Stock and cash in lieu of fractional shares (plus
dividends and distributions to the extent set forth in Section 4.2(c), if any),
as determined pursuant to this Agreement, without any interest thereon. None
of Bradley, Tucker, the Exchange Agent or any other person shall be liable to
any former holder of shares of Tucker Common Stock for any amount properly
delivered to a public official pursuant to applicable abandoned property,
escheat or similar laws. In the event any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting by such person of a bond in such
reasonable amount as the Surviving Corporation may direct as indemnity against
any claim that may be made against it with respect to such Certificate, the
Exchange Agent or the Surviving Corporation will issue in exchange for such
lost, stolen or destroyed Certificate the shares of Bradley Common Stock and
cash in lieu of fractional shares (plus, to the extent applicable, dividends
and distributions payable pursuant to Section 4.2(c)).
ARTICLE 5
5. Representations and Warranties of Tucker.
-----------------------------------------
Except as set forth in the disclosure letter delivered at or prior to the
execution hereof to Bradley, which shall refer to the relevant Sections of this
Agreement (the "Tucker Disclosure Letter"), Tucker represents and warrants to
Bradley as follows:
5.1 EXISTENCE; GOOD STANDING; AUTHORITY; COMPLIANCE WITH LAW. Tucker is
a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Maryland. Tucker is duly licensed or qualified to do
business as a foreign corporation and is in good standing under the laws of any
other state of the United States in which the character of the properties owned
or leased by it therein or in which the transaction of its
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business makes such qualification necessary, except where the failure to be so
licensed or qualified would not have a material adverse effect on the business,
results of operations or financial condition of Tucker and the Tucker
Subsidiaries (as defined below) taken as a whole (a "Tucker Material Adverse
Effect"). Tucker has all requisite corporate power and authority to own,
operate, lease and encumber its properties and carry on its business as now
conducted. Each of the Tucker Subsidiaries is a corporation or partnership duly
incorporated or organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization, has the corporate or
partnership power and authority to own its properties and to carry on its
business as it is now being conducted, and is duly qualified to do business and
is in good standing in each jurisdiction in which the ownership of its property
or the conduct of its business requires such qualification, except for
jurisdictions in which such failure to be so qualified or to be in good standing
would not have a Tucker Material Adverse Effect. Neither Tucker nor any of the
Tucker Subsidiaries is in violation of any order of any court, governmental
authority or arbitration board or tribunal, or any law, ordinance, governmental
rule or regulation to which Tucker or any Tucker Subsidiary or any of their
respective properties or assets is subject, where such violation would have a
Tucker Material Adverse Effect. Tucker and the Tucker Subsidiaries have obtained
all licenses, permits and other authorizations and have taken all actions
required by applicable law or governmental regulations in connection with their
business as now conducted, where the failure to obtain any such license, permit
or authorization or to take any such action would have a Tucker Material Adverse
Effect. Copies of the Charter or other equivalent documents, Bylaws,
organizational documents and partnership and joint venture agreements (and in
each such case, all amendments thereto) of Tucker and each of the Tucker
Subsidiaries are listed in Section 5.1 of the Tucker Disclosure Letter, and the
copies of such documents, which have previously been delivered or made available
to Bradley and its counsel, are true and correct. For the purposes of this
Agreement, the term "Tucker Subsidiary" shall include any of the entities listed
under such heading in Section 5.4 of the Tucker Disclosure Letter.
5.2 AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Each of Tucker and
the Tucker Subsidiaries has the requisite power and authority to enter into the
transactions contemplated hereby and to execute and deliver this Agreement and
the agreements and documents listed in Schedule 5.2 to this Agreement (the
"Ancillary Agreements") to which it is a party. The Board of Directors of
Tucker has, by resolutions duly adopted by unanimous vote, approved this
Agreement, the Merger and the transactions contemplated by this Agreement and
has agreed to recommend that the holders of Tucker Common Stock adopt and
approve this Agreement, the Merger and the transactions contemplated by this
Agreement at the Tucker stockholders' meeting which will be held in accordance
with the provisions of Section 7.3. In connection with the foregoing, the
Board of Directors of Tucker has taken such actions and votes as are necessary
on its part to render the provisions of the Control Share Acquisition Statute,
the Business Combination Statute and all other applicable takeover statutes of
the MGCL and any other applicable takeover statutes of any other state,
inapplicable to this Agreement, the Merger and the transactions contemplated by
this Agreement. As of the date hereof, all of the directors and executive
officers of Tucker have indicated that they presently intend to vote all shares
of Tucker Common Stock which they own to approve this Agreement, the Merger,
and the transactions contemplated by this Agreement at the Tucker stockholders
meeting which will be held in accordance with the
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provisions of Section 7.3. Subject only to the approval of this Agreement and
the transactions contemplated hereby by the holders of two-thirds of the
outstanding shares of Tucker Common Stock, the execution by Tucker and the
Tucker Subsidiaries of this Agreement, the Ancillary Agreements to which they
are parties and the consummation of the transactions contemplated by this
Agreement and the Ancillary Agreements has been duly authorized by all requisite
corporate or partnership action on the part of such entities. This Agreement
constitutes, and the Ancillary Agreements to which they are parties (when
executed and delivered pursuant hereto) will constitute, the valid and legally
binding obligations of Tucker and the Tucker Subsidiaries, enforceable against
Tucker and each of the Tucker Subsidiaries in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights and general principles of equity.
5.3 CAPITALIZATION.
(a) The authorized capital stock of Tucker consists of 90,000,000
shares of Tucker Common Stock and 10,000,000 shares of preferred stock, $.001
par value per share (the "Tucker Preferred Stock"). As of the date hereof,
there are 10,828,283 shares of Tucker Common Stock issued and outstanding, and
no shares of Tucker Preferred Stock are issued and outstanding. All such
issued and outstanding shares of Tucker Common Stock are duly authorized,
validly issued, fully paid, nonassessable and free of preemptive rights.
Except for the TOP Units and the Existing Tucker Options, Tucker has no
outstanding bonds, debentures, notes or other obligations the holders of which
have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the stockholders of Tucker on any
matter. Except for the TOP Units and the Existing Tucker Options (all of which
have been issued under the Tucker Properties Corporation 1993 Share Option Plan
(the "Tucker Stock Option Plan")), there are not at the date of this Agreement
any existing options, warrants, calls, subscriptions, convertible securities,
or other rights, agreements or commitments which obligate Tucker to issue,
transfer or sell any shares of capital stock of Tucker. Section 5.3 of the
Tucker Disclosure Letter sets forth a full list of the Existing Tucker Options,
including the name of the person to whom such stock options have been granted,
the number of shares subject to each option, the per share exercise price for
each option and the vesting schedule for each option. Except as set forth in
Section 5.3 of the Tucker Disclosure Letter, the vesting schedule of all
Existing Tucker Options shall not be changed or affected by the execution of
this Agreement or the Ancillary Agreements or the consummation of the
transactions contemplated by this Agreement or the Ancillary Agreements.
Pursuant to the terms of the Tucker Stock Option Plan, at the Effective Time,
all Existing Tucker Options will be assumed by Bradley in accordance with the
provisions of Section 4.1(e). Except as set forth in Section 5.3 of the Tucker
Disclosure Letter, there are no agreements or understandings to which Tucker or
any Tucker Subsidiary is a party with respect to the voting of any shares of
Tucker Common Stock or which restrict the transfer of any such shares, nor does
Tucker have knowledge of any such agreements or understandings with respect to
the voting of any such shares or which restrict the transfer of any such
shares. Except for TOP Units held by Limited Partners, there are no
outstanding contractual obligations of Tucker or any Tucker Subsidiary to
repurchase, redeem or otherwise acquire any shares of capital stock,
partnership interests or any other securities of Tucker or any Tucker
Subsidiary. Except as set forth in Section 5.3 of the Tucker Disclosure
Letter, neither
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Tucker nor any Tucker Subsidiary is under any obligation, contingent or
otherwise, by reason of any agreement to register any of their securities under
the Securities Act. After the Effective Time, except to the extent set forth in
Section 4.1(e), the Surviving Corporation will have no obligation to issue,
transfer or sell any shares of capital stock or other equity interest of Tucker
or the Surviving Corporation pursuant to any Tucker Stock Option Plan or any
other Tucker Benefit Plan (as defined in Section 5.16 hereof).
(b) The sole general partner of TOP is Tucker. As of the date
hereof, there are issued and outstanding 11,287,100 TOP Units, 10,828,283 of
which are owned by Tucker and the remainder of which are owned by the persons
and in the amounts set forth in Section 5.3 of the Tucker Disclosure Letter.
All such issued and outstanding TOP Units are duly authorized, validly issued,
fully paid, and free of preemptive rights. The TOP Units owned by Tucker and,
to the best knowledge of Tucker, the TOP Units owned by the Limited Partners,
are subject only to the restrictions on transfer set forth in the TOP
Partnership Agreement and those imposed by applicable securities laws. Except
as set forth in Section 5.3 of the Tucker Disclosure Letter, TOP has not issued
or granted, and is not a party to, any commitments of any kind relating to, or
any agreements or understandings with respect to, TOP Units or any other
interest in TOP or any securities convertible into TOP Units or such interests.
(c) TOP and Tucker Financing Corporation, a Delaware corporation
("TFC"), are the only partners in Tucker Financing Partnership, a Delaware
partnership ("TFP"). As of the date hereof and at all times during its
existence, TFC is and has been a wholly-owned subsidiary of Tucker, which owns
all of the 100 issued and outstanding shares of common stock, par value $.01
per share, of TFC. As of the date hereof, 99% of the issued and outstanding
units of partnership interests in TFP ("TFP Units"), are held by TOP and 1% are
held by TFC. All such issued and outstanding TFP Units are duly authorized,
validly issued, fully paid, and free of preemptive rights. The TFP Units are
subject only to the restrictions on transfer set forth in the TOP Partnership
Agreement, the partnership agreement of TFP and that certain Indenture, dated
as of June 1, 1994, by and between TFP, Bankers Trust Company of California,
N.A. and Bankers Trust (the "Indenture") and those imposed by applicable
securities laws. TFP has not otherwise issued or granted, and is not a party
to, any commitments of any kind relating to, or any agreements or
understandings with respect to, TFP Units or any other interest in TFP or any
securities convertible into TFP Units or such interests. TFP has financed all
of the properties which it owns through a transaction which, as of the date
hereof, qualifies as a real estate mortgage investment conduit (a "REMIC")
under Section 860D of the Code. As part of the REMIC, TFP issued a
$100,000,000 interest-bearing promissory note to a certain trust, which is
governed by the Indenture. As of the date hereof, TFP has complied with all of
the covenants contained in Section 1008 and Section 1009 of the Indenture and
no Default or Event of Default (as defined in the Indenture), or any event the
occurrence of which, with notice or lapse of time, will become a Default or
Event of Default under Article 5 of the Indenture, has occured or is occurring.
The execution of this Agreement and the Ancillary Agreements and the
consummation of the transactions contemplated by this Agreement and the
Ancillary Agreements will not violate or result in a violation of the covenants
in Section 1008 and Section 1009 of the Indenture (subject to the receipt of the
consent of the Indenture Trustee) and will not result in a default or Event
of Default (as defined in the Indenture), or any event the occurrence of which,
with notice or
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lapse of time, will become a Default or Event of Default under Article 5 of the
Indenture. TFP is not subject to regulation under the Public Utility Holding
Company Act of 1935 or the Federal Power Act and neither TFP or TOP is required
to be registered as an "investment company" within the meaning of the
Investment Company Act of 1940. The beneficial ownership of this trust is
represented by 413 certificates in six different classes (A, B, C, D, E and R).
The Class A, Class B, Class C, Class D and Class E certificates qualify for
treatment as "regular interests" in the REMIC. The Class R certificates
represent the sole class of "residual interests" in the REMIC.
5.4 SUBSIDIARIES. Except as set forth in Section 5.4 of the Tucker
Disclosure Letter, Tucker owns directly or indirectly each of the outstanding
shares of capital stock or all of the partnership or other equity interests of
each of the Tucker Subsidiaries. Each of the outstanding shares of capital
stock in each of the Tucker Subsidiaries having corporate form is duly
authorized, validly issued, fully paid and nonassessable. Except as set forth
in Section 5.4 of the Tucker Disclosure Letter, each of the outstanding shares
of capital stock of, or partnership or other equity interests in, each of the
Tucker Subsidiaries is owned, directly or indirectly, by Tucker free and clear
of all liens, pledges, security interests, claims or other encumbrances. The
following information for each Tucker Subsidiary is set forth in Section 5.4 of
the Tucker Disclosure Letter: (i) its name and jurisdiction of incorporation
or organization; (ii) its authorized capital stock or share capital or
partnership or other interests; (iii) the name of each stockholder or owner of
a partnership or other equity interest and the number of issued and outstanding
shares of capital stock or share capital or percentage ownership for
non-corporate entities held by it and (iv) the name of the general partners, if
applicable. TFC and Tucker Properties Investment, Inc. are the only Tucker
Subsidiaries which are "qualified REIT subsidiaries" as such term is defined
under Section 856(i) of the Code.
5.5 OTHER INTERESTS. Except for interests in the Tucker Subsidiaries as
set forth in Section 5.4 of the Tucker Disclosure Letter, neither Tucker nor
any Tucker Subsidiary owns directly or indirectly any interest or investment
(whether equity or debt) in any corporation, partnership, joint venture, trust
or other entity (other than investments in short-term investment securities).
With respect to the interests set forth in Section 5.4 of the Tucker Disclosure
Letter, Tucker or the applicable Tucker Subsidiary, as the case may be, is a
partner or stockholder in good standing, owns such interests free and clear of
all liens, pledges, security interests, claims, options or other encumbrances,
is not in breach of any provision of any agreement, document or contract
governing such entity's rights in or to the interests owned or held, all of
which agreements, documents and contracts are set forth in Section 5.4 of the
Tucker Disclosure Letter, and have not been modified or amended since their
description therein, and are in full force and effect and, to the best of the
knowledge of Tucker, the other parties to such agreements, documents or
contracts are not in breach of any of their respective obligations under such
agreements, documents or contracts, and to the best of the knowledge of Tucker,
if such other entities were included within the definition of Tucker
Subsidiaries for purposes of this Agreement, there would be no exceptions or
breaches to the representations and warranties made in this Article for Tucker
Subsidiaries.
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5.6 NO VIOLATION. Except as set forth in Section 5.6 of the Tucker
Disclosure Letter, neither the execution and delivery by Tucker and the Tucker
Subsidiaries of this Agreement or the Ancillary Agreements nor the consummation
by Tucker and the Tucker Subsidiaries of the transactions contemplated by this
Agreement and the Ancillary Agreements in accordance with their terms, will:
(i) conflict with or result in a breach of any provisions of the Charter,
Bylaws, organizational documents, partnership agreements, or joint venture
agreements of Tucker or any Tucker Subsidiary; (ii) result in a breach or
violation of, a default under, or the triggering of any payment or other
material obligations pursuant to, or accelerate vesting under, the Tucker Stock
Option Plan, or any grant or award made thereunder; (iii) violate, or conflict
with, or result in a breach of any provision of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, or result in the termination or in a right of termination or
cancellation of, or accelerate the performance required by, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties of Tucker or the Tucker Subsidiaries under, or result in being
declared void, voidable or without further binding effect, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust
or any license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Tucker or any of the Tucker
Subsidiaries is a party, or by which Tucker or any of the Tucker Subsidiaries
or any of their properties is bound or affected, except for any of the
foregoing matters which, individually or in the aggregate, would not have a
Tucker Material Adverse Effect; or (iv) other than the filings provided for in
Article 1 of this Agreement, or required under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (the "HSR Act"), the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the Securities Act or applicable state
securities and "Blue Sky" laws (collectively, the "Regulatory Filings"),
require any consent, approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority, except where the
failure to obtain any such consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority would not have a Tucker Material Adverse Effect.
5.7 SEC DOCUMENTS. A complete list of the registration statements of
Tucker filed with the United States Securities and Exchange Commission ("SEC")
in connection with Tucker's initial public offering of Tucker Common Stock, and
all exhibits, amendments and supplements thereto (the "Tucker Registration
Statement"), and each (A) registration statement, (B) annual report on Form
10-K, (C) quarterly report on Form 10-Q, (D) current report on Form 8-K, (E)
proxy statement or information statement, and (F) other reports filed with the
SEC pursuant to the requirements of the Exchange Act (in all such cases,
including all exhibits, amendments and supplements thereto), prepared by Tucker
or any of the Tucker Subsidiaries or relating to properties of Tucker or the
Tucker Subsidiaries (including registration statements covering mortgage
pass-through certificates) since the effective date of the Tucker Registration
Statement, is set forth in Section 5.7 of the Tucker Disclosure Letter, and
copies of such documents, in the form (including exhibits and any amendments
thereto) filed with the SEC, have previously been provided or made available to
Bradley or its counsel (collectively, the "Tucker Reports"). The Tucker
Reports were filed with the SEC in a timely manner and constitute all forms,
reports and documents required to be filed by Tucker under the Securities Act,
the Exchange Act and the rules and regulations promulgated thereunder (the
"Securities Laws"). As of their respective dates, the Tucker Reports (i)
complied as to form
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in all material respects with the applicable requirements of the Securities Laws
and (ii) did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. Each of the consolidated balance sheets of Tucker
included in or incorporated by reference into the Tucker Reports (including the
related notes and schedules) fairly presents the consolidated financial position
of Tucker and the Tucker Subsidiaries as of its date and each of the
consolidated statements of income, retained earnings and cash flows of Tucker
included in or incorporated by reference into the Tucker Reports (including any
related notes and schedules) fairly presents the results of operations, retained
earnings or cash flows, as the case may be, of Tucker and the Tucker
Subsidiaries for the periods set forth therein (subject, in the case of
unaudited statements, to normal year-end audit adjustments which would not be
material in amount or effect), in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved,
except as may be noted therein and except, in the case of the unaudited
statements, as permitted by Form 10-Q of the SEC. Except as and to the extent
set forth on the consolidated balance sheet of Tucker and the Tucker
Subsidiaries at December 31, 1994, including all notes thereto, or as set forth
in the Tucker Reports or in Section 5.7 of the Tucker Disclosure Letter, neither
Tucker nor any of the Tucker Subsidiaries has any material liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
that would be required to be reflected on, or reserved against in, a balance
sheet of Tucker or in the notes thereto, prepared in accordance with generally
accepted accounting principles consistently applied, except liabilities arising
in the ordinary course of business since such date and liabilities for expenses
of attorneys, accountants and investment bankers incurred in connection with the
Merger.
5.8 LITIGATION. There are (i) no continuing orders, injunctions or
decrees of any court, arbitrator or governmental authority to which Tucker or
any Tucker Subsidiary is a party or by which any of its properties or assets
are bound or, to the reasonable best knowledge of Tucker, to which any of its
directors, officers, employees or agents is a party or by which any of their
properties or assets are bound, and (ii) no actions, suits or proceedings
pending against Tucker or any Tucker Subsidiary or, to the reasonable best
knowledge of Tucker, against any of its directors, officers, employees or
agents or, to the reasonable best knowledge of Tucker, threatened against
Tucker or any Tucker Subsidiary or against any of its directors, officers,
employees or agents, at law or in equity, or before or by any federal or state
commission, board, bureau, agency or instrumentality, that in the case of
clause (i) or (ii), are reasonably likely, individually or in the aggregate, to
have a Tucker Material Adverse Effect.
5.9 ABSENCE OF CERTAIN CHANGES. Except as disclosed in the Tucker
Reports filed with the SEC prior to the date hereof or as set forth in Section
5.9 of the Tucker Disclosure Letter, since December 31, 1994, Tucker and the
Tucker Subsidiaries have conducted their business only in the ordinary course
of such business and there has not been (i) any Tucker Material Adverse Effect;
(ii) as of the date hereof, any declaration, setting aside or payment of any
dividend or other distribution with respect to the Tucker Common Stock, except
dividends of $0.36 per share paid on January 16, 1995 and April 14, 1995 and
$0.25 per share paid on July 14, 1995 and October 16, 1995, (iii) any material
commitment, contractual obligation,
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borrowing, capital expenditure or transaction (each, a "Commitment") entered
into by a Tucker or any of the Tucker Subsidiaries outside the ordinary
course of business except for commitments for expenses of attorneys, accountants
and investment bankers incurred in connection with the Merger; or (iv) any
material change in Tucker's accounting principles, practices or methods.
5.10 TAXES. Except as set forth in Section 5.10 of the Tucker Disclosure
Letter:
(a) Tucker and each of the Tucker Subsidiaries has paid or caused to
be paid all federal, state, local, foreign, and other taxes, including without
limitation, income taxes, estimated taxes, alternative minimum taxes, excise
taxes, sales taxes, use taxes, value-added taxes, gross receipts taxes,
franchise taxes, capital stock taxes, employment and payroll-related taxes,
withholding taxes, stamp taxes, transfer taxes, windfall profit taxes,
environmental taxes and property taxes, whether or not measured in whole or in
part by net income, and all deficiencies, or other additions to tax, interest,
fines and penalties (collectively, "Taxes"), owed by it through the date
hereof.
(b) Tucker and each of the Tucker Subsidiaries has timely filed all
federal, state, local and foreign tax returns required to be filed by any of
them through the date hereof, and all such returns completely and accurately
set forth the amount of any Taxes relating to the applicable period.
(c) Neither the Internal Revenue Service ("IRS") nor any other
governmental authority is now asserting by written notice to Tucker or any
Tucker Subsidiary or, to the knowledge of Tucker or the Tucker Subsidiaries,
threatening to assert against Tucker or any Tucker Subsidiary any deficiency or
claim for additional Taxes. There is no dispute or claim concerning any Tax
liability of Tucker or any Tucker Subsidiary, either claimed or raised by any
governmental authority, or as to which any officer of Tucker or any Tucker
Subsidiary has reason to believe may be claimed or raised by any federal or
state governmental authority. No claim has ever been made by a taxing
authority in a jurisdiction where Tucker does not file reports and returns that
Tucker is or may be subject to taxation by that jurisdiction. There are no
security interests on any of the assets of Tucker or any Tucker Subsidiary that
arose in connection with any failure (or alleged failure) to pay any Taxes.
Other than the agreement dated June 5, 1995, (the "1995 Closing Agreement")
Tucker has never entered into a closing agreement pursuant to Section 7121 of
the Code.
(d) Except as to matters in connection with the 1995 Closing
Agreement, Tucker has not received written notice of any audit of any tax
return filed by Tucker, and Tucker has not been notified by any tax authority
that any such audit is contemplated or pending. Neither Tucker nor any of the
Tucker Subsidiaries has executed or filed with the IRS or any other taxing
authority any agreement now in effect extending the period for assessment or
collection of any income or other taxes, and no extension of time with respect
to any date on which a tax return was or is to be filed by Tucker is in force.
True, correct and complete copies of all federal, state and local income or
franchise tax returns filed by Tucker and each of the Tucker Subsidiaries and
all communications relating thereto have been delivered to Bradley or made
available to representatives of Bradley.
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(e) Tucker and each Tucker Subsidiary has withheld and paid all
taxes required to have been withheld and paid in connection with amounts paid
or owing to any employee, independent contractor, creditor, stockholder or
other party.
(f) Each of the Tucker Subsidiaries of which all the outstanding
capital stock is owned solely by Tucker is a Qualified REIT Subsidiary as
defined in Section 856(i) of the Code. TOP, TFP and each of the other Tucker
Subsidiaries listed as a partnership in Section 5.4 of the Tucker Disclosure
Letter are, and have been at all times, properly classified as partnerships for
federal income tax purposes and not as publicly-traded partnerships.
(g) For its taxable year ended December 31, 1993, Tucker made all
federal and applicable state and local elections to qualify as a real estate
investment trust. None of such elections has been terminated or revoked. For
its taxable year ended December 31, 1993 and at all times thereafter up to and
including the date hereof, Tucker has qualified to be treated as a real estate
investment trust ("REIT") within the meaning of Sections 856-860 of the Code,
including, without limitation, the requirements of Sections 856 and 857 of the
Code. Tucker has qualified as a REIT for every year in which it existed. For
the periods described in the preceding sentence, Tucker has met all
requirements necessary to be treated as a REIT for purposes of the income tax
provisions of those states in which Tucker is subject to income tax and which
provide for the taxation of REITs in a manner similar to the treatment of REITs
under Sections 856-860 of the Code.
5.11 BOOKS AND RECORDS.
(a) The books of account and other financial records of Tucker and
each of the Tucker Subsidiaries are true, complete and correct in all material
respects, have been maintained in accordance with good business practices, and
are accurately reflected in all material respects in the financial statements
included in the Tucker Reports.
(b) The minute books and other records of Tucker and each of the
Tucker Subsidiaries have been made available to Bradley, contain in all
material respects accurate records of all meetings and accurately reflect in
all material respects all other corporate action of the stockholders and
directors and any committees of the Board of Directors of Tucker and each of
the Tucker Subsidiaries and all actions of the partners of each of the Tucker
Subsidiaries.
5.12 PROPERTIES. All of the real estate properties owned by Tucker and
each of the Tucker Subsidiaries are set forth in Section 5.12 of the Tucker
Disclosure Letter. Except as set forth in Section 5.12 of the Tucker
Disclosure Letter, Tucker and each Tucker Subsidiary own fee simple title to
each of the real properties identified in the Tucker Disclosure Letter (the
"Tucker Properties"), free and clear of liens, mortgages or deeds of trust,
claims against title, charges which are liens, security interests or other
encumbrances on title (collectively, "Encumbrances") and the Tucker Properties
are not subject to any rights of way, written agreements, laws, ordinances and
regulations affecting building use or occupancy, or reservations of an interest
in title (collectively, "Property Restrictions"), except for (i) Property
Restrictions imposed or promulgated by law or any governmental body or
authority
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with respect to real property, including zoning regulations, that do not
adversely affect the current use of the property, materially detract from
the value of or materially interfere with the present use of the property, (ii)
Encumbrances and Property Restrictions disclosed on existing title reports or
current surveys (in either case copies of which title reports and surveys have
been delivered or made available to Bradley and are listed in Section 5.12 of
the Tucker Disclosure Letter), and (iii) mechanics', carriers', workmen's or
repairmen's liens and other Encumbrances, Property Restrictions and other
limitations of any kind, if any, which, individually or in the aggregate, are
not material in amount, do not materially detract from the value of or
materially interfere with the present use of any of the Tucker Properties
subject thereto or affected thereby, and do not otherwise materially impair
business operations conducted by Tucker and the Tucker Subsidiaries and which
have arisen or been incurred only in the ordinary course of business. Except as
set forth in Section 5.12 of the Tucker Disclosure Letter, valid policies of
title insurance have been issued insuring Tucker's or the applicable Tucker
Subsidiary's fee simple title to each of the Tucker Properties in amounts at
least equal to the purchase price thereof, and such policies are, at the date
hereof, in full force and effect and no claim has been made against any such
policy and Tucker has no knowledge of any facts or circumstances which would
constitute the basis for such a claim. To the best knowledge of Tucker, (i) no
certificate, permit or license from any governmental authority having
jurisdiction over any of the Tucker Properties or any agreement, easement or
other right which is necessary to permit the lawful use and operation of the
buildings and improvements on any of the Tucker Properties or which is necessary
to permit the lawful use and operation of all driveways, roads and other means
of egress and ingress to and from any of the Tucker Properties (a "REA
Agreement") has not been obtained and is not in full force and effect, and there
is no pending threat of modification or cancellation of any of same nor is
Tucker nor any Tucker Subsidiary currently in default under any REA Agreement
and the Tucker Properties are in full compliance with all governmental permits,
licenses and certificates; (ii) no written notice of any violation of any
federal, state or municipal law, ordinance, order, regulation or requirement
affecting any portion of any of the Tucker Properties has been issued by any
governmental authority; (iii) there are no material structural defects relating
to any of the Tucker Properties; (iv) there is no Tucker Property whose building
systems are not in working order in any material respect; (v) there is no
physical damage to any Tucker Property in excess of $10,000 for which there is
no insurance in effect covering the full cost of the restoration; or (vi) there
is no current renovation or restoration or tenant improvements to any Tucker
Property or any portion thereof, the cost of which exceeds $10,000, except in
each instance as set forth in Section 5.12 of the Tucker Disclosure Letter.
Except as noted in Section 5.12 of the Tucker Disclosure Letter, the use and
occupancy of each of the Tucker Properties complies in all material respects
with all applicable codes and zoning laws and regulations, and Tucker has no
knowledge of any pending or threatened proceeding or action that will in any
manner affect the size of, use of, improvements on, construction on, or access
to any of the Tucker Properties, with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such Tucker
Properties. Neither Tucker nor any of the Tucker Subsidiaries has received any
notice to the effect that (A) any betterment assessments have been levied
against, or any condemnation or rezoning proceedings are pending or threatened
with respect to any of the Tucker Properties or (B) any zoning, building or
similar law, code, ordinance, order or regulation is or will be violated by the
continued maintenance, operation or use of any buildings or other
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improvements on any of the Tucker Properties or by the continued maintenance,
operation or use of the parking areas.
5.13 LEASES.
(a) Section 5.13 of the Tucker Disclosure Letter sets forth a true,
accurate and complete rent roll for each of the Tucker Properties (the "Rent
Roll") as of September 30, 1995. The Rent Roll includes, without limitation,
the name of the Tenant, the space leased, the lease expiration date, security
and other deposits, prepaid rent (for more than 30 days), percentage rent, pro
rata share of operating expenses, taxes, charges and assessments. Section 5.13
of the Tucker Disclosure Letter contains a list of known defaults and a list of
any extraordinary clauses including, without limitation, any "kick-out"
clauses, cotenancy requirements or exclusions, "go-dark" clauses, or clauses
requiring any future funding of tenant improvements.
(b) Except as noted in Section 5.13 of the Tucker Disclosure Letter,
as of the last day of the calendar month immediately preceding the date hereof,
(i) each of the leases and tenancies for all or any portion of the Tucker
Properties (the "Tucker Leases") is valid and subsisting and in full force and
effect, has not been amended, modified or supplemented; (ii) the tenant under
each of the Tucker Leases is in actual possession of the leased premises; (iii)
no tenants are in arrears for the payment of rent for any month preceding the
month of the date of this Agreement or otherwise in default of such tenant's
lease obligations as to which Tucker has given notice of default to such
tenant; and (iv) neither Tucker nor any Tucker Subsidiary has received any
written notice from any tenant of any intention to vacate. Except as set forth
in Section 5.13 of the Tucker Disclosure Letter, neither Tucker nor any Tucker
Subsidiary has collected payment of rent (other than security deposits)
accruing for a period which is more than one month beyond the date of
collection.
(c) Tucker has previously delivered or made available to Bradley a
true and correct copy of all Tucker Leases.
(d) Except as shown in Section 5.13 of the Tucker Disclosure Letter,
as of the last day of the calendar month immediately preceding the date hereof,
no tenant under any of the Tucker Leases has asserted any claim of which Tucker
or any Tucker Subsidiary has received written notice which would materially
affect the collection of rent from such tenant and neither Tucker nor any
Tucker Subsidiary has received written notice of any material default or breach
on the part of Tucker or any Tucker Subsidiary under any of the Tucker Leases
which has not been cured.
(e) Section 5.13 of the Tucker Disclosure Letter sets forth a
complete and correct list, as of the date hereof, of all written or oral
commitments made by Tucker or any Tucker Subsidiary to lease any of the Tucker
Properties or any portion thereof which has not yet been reduced to a written
lease. Tucker has provided true and correct copies of all such written
commitments to Bradley and Section 5.13 of the Tucker Disclosure Letter
provides with respect to each such oral commitment the principal terms of such
commitment, including, if applicable, (i) the space to be occupied, (ii) the
name of the tenant, (iii) the length of the
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original term thereof any any right or option to renew or extend the lease
term, (iv) the monthly minimum rental, (v) rental escalations, (vi) the
terms with respect to percentage rent or other overage rent, (vii) any
provisions for tenant allowances and tenant build-out and (viii) the right of
any third-party broker to any outstanding brokerage or other commission
incidental thereto and all other financial terms.
(f) Except as set forth in Section 5.13 of the Tucker Disclosure
Letter all material leases pursuant to which Tucker or any Tucker Subsidiary,
as lessee, leases real or personal property are in good standing, valid and
effective in accordance with their respective terms, and there is not, under
any of such leases, any material existing default or any event which with
notice or lapse of time or both would constitute such a default, nor do any of
such leases contain any provision which would preclude the Surviving
Corporation from occupying and using the leased premises for the same purposes
and upon substantially the same rental and other terms as are applicable to the
occupation and use by Tucker and the Tucker Subsidiaries.
5.14 RENTS. The rents and other income and charges set forth in Section
5.13 of the Tucker Disclosure Letter are the actual rents, income and charges
presently being charged by Tucker and the Tucker Subsidiaries under the Tucker
Leases. No space is occupied rent free or at a rental rate reduced from the
rate stated in Section 5.13 of the Tucker Disclosure Letter. Other than set
forth in Section 5.13 of the Tucker Disclosure Letter, no tenant under any of
the Tucker Leases is entitled to any purchase option, concessions, allowances,
abatements, set-offs, rebates or refunds or has prepaid any rents or other
charges for more than one month. None of the Tucker Leases and none of the
rents or other amounts payable thereunder have been assigned, pledged or
encumbered, other than to lenders, as described in Section 5.22 of the Tucker
Disclosure Letter. Except as set forth in Section 5.22 of the Tucker
Disclosure Letter, no brokerage or leasing commission or other compensation
will be due or payable to any person, firm, corporation or other entity with
respect to or on account of any of the Tucker Leases or any extensions or
renewals thereof on and after the Effective Time.
5.15 ENVIRONMENTAL MATTERS. Except as set forth in Section 5.15 of the
Tucker Disclosure Letter, none of Tucker, any Tucker Subsidiary or, to the best
knowledge of Tucker, any other person has caused or permitted (a) the unlawful
presence of any hazardous substances, hazardous materials, toxic substances or
waste materials (collectively, "Hazardous Materials") on any of the Tucker
Properties, or (b) any unlawful spills, releases, discharges or disposal of
Hazardous Materials to have occurred or be presently occurring on or from any
of the Tucker Properties as a result of any construction on or operation and
use of such properties, which presence or occurrence would, individually or in
the aggregate, have a Tucker Material Adverse Effect; and in connection with
the construction on or operation and use of the Tucker Properties, neither
Tucker nor any of the Tucker Subsidiaries has failed to comply, in any material
respect, with any applicable local, state or federal environmental law,
regulation, ordinance or administrative and judicial order relating to the
generation, recycling, reuse, sale, storage, handling, transport and disposal
of any Hazardous Materials.
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5.16 EMPLOYEE BENEFIT PLANS.
(a) All employee benefits plans (within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
and other benefit arrangements covering employees of Tucker and the Tucker
Subsidiaries, other than any multiemployer plan (within the meaning of Section
3(37) of ERISA) (the "Tucker Benefit Plans") are listed in Section 5.16(a) of
the Tucker Disclosure Letter. True and complete copies of the Tucker Benefit
Plans have been provided or made available to Bradley. To the extent
applicable, the Tucker Benefit Plans have been administered in all material
respects in accordance with their terms and comply, in all material respects,
with the applicable requirements of ERISA and the Code. Any Tucker Benefit
Plan intended to be qualified under Section 401(a) of the Code has received a
favorable determination letter from the IRS or a determination letter request
has been filed with the IRS with respect to any such plan and is still pending.
No Tucker Benefit Plan is covered by Title IV of ERISA or Section 412 of the
Code. No Tucker Benefit Plan nor Tucker or any Tucker Subsidiary has incurred
any liability or penalty under Section 4975 of the Code or Section 502(i) of
ERISA. There are no pending or anticipated claims against or otherwise
involving any of the Tucker Benefit Plans and no suit, action or other
litigation (excluding claims for benefits incurred in the ordinary course of
Tucker Benefit Plan activities) has been brought against or with respect to any
such Tucker Benefit Plan. All material contributions required to be made as of
the date hereof to the Tucker Benefit Plans have been made or provided for.
Except as otherwise required by Sections 601 through 608 of ERISA, Section
4980B of the Code and applicable state laws or as set forth in the Severance
Plan or the Severance Agreements, Tucker does not maintain or contribute to any
plan or arrangement which provides or has any liability to provide life
insurance, medical or other employee welfare benefits to any employee or former
employee upon his retirement or termination of employment and Tucker has never
represented, promised or contracted (whether in oral or written form) to any
employee or former employee that such benefits would be provided. Except as
set forth in the Severance Plan or the Severance Agreements, as disclosed in
the Tucker Reports or in Section 5.16(a) of the Tucker Disclosure Letter, the
execution of, and performance of the transactions contemplated in, this
Agreement will not (either alone or upon the occurrence of any additional
subsequent events directly related to the transaction contemplated herein) (i)
constitute an event under any Tucker Benefit Plan that will or may result in
any payment (whether of severance pay or otherwise), acceleration, forgiveness
of indebtedness, vesting, distribution, increase in benefits or obligations to
fund benefits with respect to any employee, director or consultant of Tucker or
any Tucker Subsidiary pursuant to any Tucker Benefit Plan or (ii) result in the
triggering or imposition of any restrictions or limitations on the right of
Tucker or Bradley to amend or terminate any Tucker Benefit Plan. No payment or
benefit which will be required to be made pursuant to the terms of any
agreement, commitment or Tucker Benefit Plan (including the Severance Plan and
the Severance Agreements and the Consulting Agreement with Ken Tucker), as a
result of the transactions contemplated by this Agreement, to any officer,
director or employee of Tucker or any of the Tucker Subsidiaries, could be
characterized as an "excess parachute payment" within the meaning of Section
280G of the Code.
(b) Except as listed in Schedule 5.16(b) of the Tucker Disclosure
Letter, neither Tucker nor any Tucker Subsidiary contributes to or has any
liability to contribute to a
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multiemployer plan. All contributions have been made as required by the terms of
each of the plans listed in Schedule 5.16(b) of the Tucker Disclosure Letter
and the terms of any related collective bargaining agreements and neither Tucker
nor any Tucker Subsidiary has any knowledge or received any notice that any such
plan is in reorganization, that increased contributions are required to avoid a
reduction in plan benefits or the imposition of any excise tax, that any such
plan is or has been funded at a rate less than required under section 412 of the
Code, or that any such plan is insolvent.
5.17 LABOR MATTERS. Except as set forth in Section 5.17 of the Tucker
Disclosure Letter, neither Tucker nor any Tucker Subsidiary is a party to, or
bound by, any collective bargaining agreement, contract or other agreement or
understanding with a labor union or labor union organization. There is no
unfair labor practice or labor arbitration proceeding pending or, to the
knowledge of Tucker, threatened against Tucker or any of the Tucker
Subsidiaries relating to their business, except for any such proceeding which
would not have a Tucker Material Adverse Effect. To the knowledge of Tucker,
there are no organizational efforts with respect to the formation of a
collective bargaining unit presently being made or threatened involving
employees of Tucker or any of the Tucker Subsidiaries.
5.18 NO BROKERS. Neither Tucker nor any of the Tucker Subsidiaries has
entered into any contract, arrangement or understanding with any person or firm
which may result in the obligation of such entity or Bradley to pay any
finder's fees, brokerage or agent's commissions or other like payments in
connection with the negotiations leading to this Agreement or the consummation
of the transactions contemplated hereby, except that Tucker has retained
PaineWebber Incorporated ("PaineWebber") and those entities listed in Section
5.18 of the Tucker Disclosure Letter, as its financial advisors, the
arrangements with which have been disclosed in writing to Bradley prior to the
date hereof. Other than the foregoing arrangements and Bradley's arrangement
with Alex. Brown & Sons Incorporated ("Alex. Brown"), Tucker is not aware of
any claim for payment of any finder's fees, brokerage or agent's commissions or
other like payments in connection with the negotiations leading to this
Agreement or the consummation of the transactions contemplated hereby.
5.19 OPINION OF FINANCIAL ADVISOR. Tucker has received the opinion of
PaineWebber, to the effect that, as of the date hereof, the Exchange Ratio is
fair to the holders of Tucker Common Stock from a financial point of view, and
has delivered a true and correct copy of such opinion to Bradley.
5.20 BRADLEY SHARE OWNERSHIP. Neither Tucker nor any of the Tucker
Subsidiaries owns any shares of Bradley Common Stock or other securities
convertible into any shares of Bradley Common Stock.
5.21 RELATED PARTY TRANSACTIONS. Set forth in Section 5.21 of the Tucker
Disclosure Letter is a list of all arrangements, agreements and contracts
(except for the Severance Plan and the Severance Agreements) entered into by
Tucker or any of the Tucker Subsidiaries (which are or will be in effect as of
or after the date of this Agreement) with (i) any consultant (X) involving
payments in excess of $25,000 or (Y) which may not be terminated at will by
Tucker or the Tucker Subsidiary which is a party thereto, (ii) any person who
is an officer,
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director or affiliate of Tucker or any of the Tucker Subsidiaries, any relative
of any of the foregoing or any entity of which any of the foregoing is an
affiliate or (iii) any person who acquired Tucker Common Stock in a private
placement. All such documents are listed in Section 5.21 of the Tucker
Disclosure Letter and the copies of such documents, which have previously been
provided or made available to Bradley and its counsel, are true and correct
copies. All of the management, leasing or other contracts to which TMC, TMLP or
any affiliate of Tucker is a party, receives income from or has obligations or
liabilities arising out of are listed on Schedule 5.21 of the Tucker Disclosure
Letter.
5.22 CONTRACTS AND COMMITMENTS. Section 5.22 of the Tucker Disclosure
Letter sets forth (i) all notes, debentures, bonds and other evidence of
indebtedness which are secured or collateralized by mortgages, deeds of trust
or other security interests in the Tucker Properties or personal property of
Tucker and each of the Tucker Subsidiaries and (ii) each Commitment entered
into by Tucker or any of the Tucker Subsidiaries which may result in total
payments by or liability of Tucker or any Tucker Subsidiary in excess of
$10,000 except for the Severance Plan and the Severance Agreements. Copies of
the foregoing are listed in Section 5.22 of the Tucker Disclosure Letter and
the copies of such documents, which have previously been provided or made
available to Bradley and its counsel, are true and correct. None of Tucker or
any of the Tucker Subsidiaries has received any notice of a default that has
not been cured under any of the documents described in clause (i) above or is
in default respecting any payment obligations thereunder beyond any applicable
grace periods except where such default would not have a Tucker Material
Adverse Effect. All joint venture agreements to which Tucker or any of the
Tucker Subsidiaries is a party are set forth in Section 5.22 of the Tucker
Disclosure Letter and neither Tucker nor any of the Tucker Subsidiaries is in
default with respect to any obligations, which individually or in the aggregate
are material, thereunder.
5.23 DEVELOPMENT RIGHTS. Set forth in Section 5.23 of the Tucker
Disclosure Letter is a list of all agreements entered into by Tucker or any of
the Tucker Subsidiaries relating to the development or construction of the
Tucker Properties and a description of the current status of each such
development. The copies of such agreements are listed in Section 5.23 of the
Tucker Disclosure Letter, and such copies, which have previously been provided
to Bradley and its counsel, are true and correct. All work to be performed,
payments to be made and actions to be taken by Tucker or any of the Tucker
Subsidiaries prior to the date hereof pursuant to any agreement entered into
with a governmental body or authority in connection with the development of the
Tucker Properties, including any Development Agreement relating to a site
approval, zoning reclassification or other similar action (e.g., Local
Improvement District, Road Improvement District, Environmental Mitigation,
etc.) has been performed, paid or taken, as the case may be, and Tucker is not
aware of any planned or proposed work, payments or actions that may be required
after the date hereof pursuant to such agreements.
5.24 CERTAIN PAYMENTS RESULTING FROM TRANSACTIONS. Except for the
Severance Plan and the Severance Agreements and the vesting of options as set
forth in Section 5.3 of the Tucker Disclosure Letter, the execution of, and
performance of the transactions contemplated by, this Agreement will not
(either alone or upon the occurrence of any additional or subsequent events)
(i) constitute an event under any Tucker Benefit Plan, policy, practice,
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agreement or other arrangement or any trust or loan (the "Employee
Arrangements") that will or may result in any payment (whether of severance pay
or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any
employee, director or consultant of Tucker or any of the Tucker Subsidiaries, or
(ii) result in the triggering or imposition of any restrictions or limitations
on the right of Tucker or Bradley to amend or terminate any Employee Arrangement
and receive the full amount of any excess assets remaining or resulting from
such amendment or termination, subject to applicable taxes. No payment or
benefit which will be required to be made pursuant to the terms of any
agreement, commitment or Tucker Benefit Plan (including the Severance Plan and
the Severance Agreements), as a result of the transactions contemplated by this
Agreement, to any officer, director or employee of Tucker or any of the Tucker
Subsidiaries, could be characterized as an "excess parachute payment" within the
meaning of Section 280G of the Code.
5.25 INDEMNIFICATION CLAIMS. No indemnification or other claims have been
made by Tucker, any Tucker Subsidiary, or any other person against the TTC
Principals or the TTC Guarantors (as such terms are defined in the TOP
Partnership Agreement) under Section 14 or any other section or provision of
the TOP Partnership Agreement or any other agreement to which Tucker or any
Tucker Subsidiary is a party and, to the best knowledge of Tucker, no facts or
circumstances exist which could give rise to any such claim.
5.26 DISCLOSURE. The representations, warranties and statements made by
Tucker in this Agreement, the Ancillary Agreements and in the Tucker Disclosure
Letter and in the certificates and other documents delivered pursuant hereto do
not contain any untrue statement of a material fact, and, when taken together,
do not omit to state any material fact necessary to make such representations,
warranties and statements, in light of the circumstances under which they are
made, not misleading.
5.27 STATUS OF HOLDEN COURT AND HOLDEN COURT ESCROW. Section 5.27 of the
Tucker Disclosure Letter sets forth a description of the current status of the
Holden Court Escrow Agreement established in connection with the contribution
of One North State to TOP and a description of the status of efforts with the
City of Chicago to secure fee simple title to Holden Court as required by the
Holden Court Escrow Agreement.
5.28 TENANT IMPROVEMENTS. Section 5.28 of the Tucker Disclosure Letter
contains (i) a list of any unfunded tenant improvements being conducted by
Tucker or any Tucker Subsidiary in excess of $10,000 and (ii) to the best
knowledge of Tucker, the aggregate amount of all unfunded tenant improvements
for all Tucker Properties. Tucker and each Tucker Subsidiary has delivered or
made available true and correct copies of any and all contracts, plans,
specifications and agreements in connection with all tenant improvements in
excess of $10,000.
5.29 STATUS OF OPTIONS TO PURCHASE REAL PROPERTY. All options of Tucker
or any of the Tucker Subsidiaries to purchase real property, including a
description of the current status, conditions and contingencies relating to
each of such options, are set forth in Section 5.29 of the Tucker Disclosure
Letter.
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5.30 DEFINITION OF TUCKER'S KNOWLEDGE. As used in this Agreement, the
phrase "to the knowledge of Tucker" or "to the best knowledge of Tucker" (or
words of similar import) means the knowledge or the best knowledge of those
individuals identified in Section 5.30 of the Tucker Disclosure Letter, and
includes any fact, matter or circumstance which any of such individuals, as an
ordinary and prudent business person employed in the same capacity in the same
type and size of business as Tucker, should have known.
ARTICLE 6
6. Representations and Warranties of Bradley.
------------------------------------------
Except as set forth in the disclosure letter delivered at or prior to the
execution hereof to Tucker, which shall refer to the relevant Sections of this
Agreement (the "Bradley Disclosure Letter"), Bradley represents and warrants to
Tucker as follows:
6.1 EXISTENCE; GOOD STANDING; AUTHORITY; COMPLIANCE WITH LAW. Bradley is
a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Maryland. Bradley is duly licensed or qualified to do
business as a foreign corporation and is in good standing under the laws of any
other state of the United States in which the character of the properties owned
or leased by it therein or in which the transaction of its business makes such
qualification necessary, except where the failure to be so licensed or
qualified would not have a material adverse effect on the business, results of
operations or financial condition of Bradley and the Bradley Subsidiaries (as
defined below) taken as a whole (a "Bradley Material Adverse Effect"). Bradley
has all requisite corporate power and authority to own, operate, lease and
encumber its properties and carry on its business as now conducted. Each of
the Bradley Subsidiaries is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation or
organization, has the corporate power and authority to own its properties and
to carry on its business as it is now being conducted, and is duly qualified to
do business and is in good standing in each jurisdiction in which the ownership
of its property or the conduct of its business requires such qualification,
except for jurisdictions in which such failure to be so qualified or to be in
good standing would not have a Bradley Material Adverse Effect. Neither
Bradley nor any Bradley Subsidiary is in violation of any order of any court,
governmental authority or arbitration board or tribunal, or any law, ordinance,
governmental rule or regulation to which Bradley or any Bradley Subsidiary or
any of their respective properties or assets is subject, where such violation
would have a Bradley Material Adverse Effect. Bradley and the Bradley
Subsidiaries have obtained all licenses, permits and other authorizations and
have taken all actions required by applicable law or governmental regulations
in connection with their business as now conducted, where the failure to obtain
any such license, permit or authorization or to take any such action would have
a Bradley Material Adverse Effect. Copies of the Charter and other equivalent
documents and Bylaws (and all amendments thereto) of Bradley and each of the
Bradley Subsidiaries are listed in Section 6.1 of the Bradley Disclosure
Letter, and the copies of such documents, which have previously been delivered
or made available to Tucker or its counsel, are true and correct copies. For
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purposes of this Agreement, the term "Bradley Subsidiary" shall include any of
the entities set forth under such heading in Section 6.4 of the Bradley
Disclosure Letter.
6.2 AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Bradley has the
requisite corporate power and authority to enter into the transactions
contemplated hereby and to execute and deliver this Agreement and the Ancillary
Agreements to which it is a party. The Board of Directors of Bradley has, by
resolutions duly adopted by unanimous vote approved this Agreement, the Merger
and the other transactions contemplated by this Agreement and has agreed to
recommend that the holders of Bradley Common Stock adopt and approve this
Agreement, the Merger and the transactions contemplated by this Agreement at
the Bradley stockholders' meeting which will be held in accordance with the
provisions of Section 7.3. In connection with the foregoing, the Board of
Directors of Bradley has taken such actions and votes as are necessary on its
part to render the provisions of the Control Share Acquisition Statute, the
Business Combination Statute and all other applicable takeover statutes of the
MGCL and any other applicable takeover statutes of any other state,
inapplicable to this Agreement, the Merger, and the transactions contemplated
by this Agreement. As of the date hereof, all of the directors and executive
officers of Bradley have indicated that they presently intend to vote all
shares of Bradley Common Stock which they own to approve this Agreement, the
Merger, and the transactions contemplated by this Agreement at the Bradley
stockholders meeting which will be held in accordance with the provisions of
Section 7.3. Subject only to the approval of this Agreement and the
transactions contemplated hereby by the holders of a majority of the
outstanding shares of Bradley Common Stock, the execution by Bradley of this
Agreement, the Ancillary Agreements and the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements has been duly
authorized by all requisite corporate action on the part of Bradley. This
Agreement constitutes, and the Ancillary Agreements to which it will become a
party (when executed and delivered pursuant hereto) will constitute, the valid
and legally binding obligations of Bradley, enforceable against Bradley in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights and
general principles of equity.
6.3 CAPITALIZATION. The authorized capital stock of Bradley consists of
80,000,000 shares of Bradley Common Stock, 20,000,000 shares of preferred
stock, par value $.01 per share (the "Bradley Preferred Stock"), and 50,000,000
shares of excess stock, par value $.01 per share ("Bradley Excess Stock"). As
of the date hereof, there are 11,226,606 shares of Bradley Common Stock issued
and outstanding, and no shares of Bradley Preferred Stock or Bradley Excess
Stock are issued and outstanding. All such issued and outstanding shares of
Bradley Common Stock are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. Bradley has no outstanding bonds,
debentures, notes or other obligations the holders of which have the right to
vote (or which are convertible into or exercisable for securities having the
right to vote) with the stockholders of Bradley on any matter. There are not
at the date of this Agreement any existing options, warrants, calls,
subscriptions, convertible securities, or other rights, agreements or
commitments which obligate Bradley to issue, transfer or sell any shares of
Bradley Common Stock, other than the issuance by Bradley of up to 297,875
shares of Bradley Common Stock upon the exercise of stock options issued
pursuant to Bradley's stock option plans. There are no agreements or
understandings to
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which Bradley or any Bradley Subsidiary is a party with respect to the voting of
any shares of Bradley Common Stock or which restrict the transfer of any such
shares, nor does Bradley have knowledge of any such agreements or understandings
with respect to the voting of any such shares or which restrict the transfer of
such shares.
6.4 SUBSIDIARIES. Bradley owns all of the outstanding shares of capital
stock of each of the Bradley Subsidiaries. All of the outstanding shares of
capital stock of each of the Bradley Subsidiaries are duly authorized, validly
issued, fully paid and nonassessable, and are owned, by Bradley free and clear
of all liens, pledges, security interests, claims or other encumbrances. The
following information for each Bradley Subsidiary is set forth in Section 6.4
of the Bradley Disclosure Letter: (i) its name and jurisdiction of
incorporation or organization and (ii) its authorized capital stock.
6.5 OTHER INTERESTS. Except for interests in the Bradley Subsidiaries
and the securities of other publicly traded REITs, neither Bradley nor any
Bradley Subsidiary owns directly or indirectly any interest or investment
(whether equity or debt) in any corporation, partnership, joint venture, trust
or other entity (other than investments in short-term investment securities).
6.6 NO VIOLATION. Except as set forth in Section 6.6 of the Bradley
Disclosure Letter, neither the execution and delivery by Bradley of this
Agreement or the Ancillary Agreements nor the consummation by Bradley of the
transactions contemplated by this Agreement and the Ancillary Agreements in
accordance with their terms, will: (i) conflict with or result in a breach of
any provisions of the Articles of Incorporation or Bylaws of Bradley; (ii)
result in a breach or violation of, a default under, or the triggering of any
payment or other material obligations pursuant to, or accelerate vesting under,
any of Bradley's stock option plans, or any grant or award under any of the
foregoing; (iii) violate, or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the
termination or in a right of termination or cancellation of, or accelerate the
performance required by, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties of Bradley or any of
the Bradley Subsidiaries under, or result in being declared void, voidable, or
without further binding effect, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust or any license, franchise,
permit, lease, contract, agreement or other instrument, commitment or
obligation to which Bradley or any of the Bradley Subsidiaries is a party, or
by which Bradley or any of the Bradley Subsidiaries or any of their properties
is bound or affected, except for any of the foregoing matters which,
individually or in the aggregate, would not have a Bradley Material Adverse
Effect; or (iv) other than the Regulatory Filings, require any consent,
approval or authorization of, or declaration, filing or registration with, any
governmental or regulatory authority except where the failure to obtain any
such consent, approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority would not have a
Bradley Material Adverse Effect.
6.7 SEC DOCUMENTS. A complete list of Bradley SEC filings, including the
Form 10-K for the fiscal year ended December 31, 1993 filed by Bradley's
predecessor entity,
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Bradley Real Estate Trust ("Bradley Trust"), and each (A) registration
statement, (B) annual report of Form 10-K, (C) quarterly report on Form 10-Q,
(D) current report on Form 8-K, (E) proxy statement or information statement,
and (F) any other report filed with the SEC pursuant to the Exchange Act, (in
all such cases, including all exhibits, amendments and supplements thereto)
prepared by Bradley or Bradley Trust or relating to their properties since
December 31, 1993, are set forth in Section 6.7 of the Bradley Disclosure
Letter, and copies of which, in the form (including exhibits and any amendments
thereto) filed with the SEC, have previously been provided or made available to
Tucker or its counsel (collectively, the "Bradley Reports"). The Bradley
Reports were filed with the SEC in a timely manner and constitute all forms,
reports and documents required to be filed by Bradley (including for this
purpose the Bradley Trust) under the Securities Laws subsequent to December 31,
1993. As of their respective dates, the Bradley Reports (i) complied as to form
in all material respects with the applicable requirements of the Securities Laws
and (ii) did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. Each of the consolidated balance sheets of Bradley
included in or incorporated by reference into the Bradley Reports (including the
related notes and schedules) fairly presents the consolidated financial position
of Bradley and the Bradley Subsidiaries as of its date and each of the
consolidated statements of income, retained earnings and cash flows of Bradley
included in or incorporated by reference into the Bradley Reports (including any
related notes and schedules) fairly presents the results of operations, retained
earnings or cash flows, as the case may be, of Bradley and the Bradley
Subsidiaries for the periods set forth therein (subject, in the case of
unaudited statements, to normal year-end audit adjustments which would not be
material in amount or effect), in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved,
except as may be noted therein and except, in the case of the unaudited
statements, as permitted by Form 10-Q of the SEC. Except as and to the extent
set forth on the consolidated balance sheet of Bradley and the Bradley
Subsidiaries at December 31, 1994, including all notes thereto, or as set forth
in the Bradley Reports, neither Bradley nor any of the Bradley Subsidiaries has
any material liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise) that would be required to be reflected on, or
reserved against in, a balance sheet of Bradley or in the notes thereto,
prepared in accordance with generally accepted accounting principles
consistently applied, except liabilities arising in the ordinary course of
business since such date and liabilities for expenses of attorneys, accountants
and investment bankers incurred in connection with the Merger.
6.8 LITIGATION. There are (i) no continuing orders, injunctions or
decrees of any court, arbitrator or governmental authority to which Bradley or
any Bradley Subsidiary is a party or by which any of its properties or assets
are bound or, to the reasonable best knowledge of Bradley, to which any of its
directors, officers, employees or agents is a party or by which any of their
properties or assets are bound, and (ii) no actions, suits or proceedings
pending against Bradley or any Bradley Subsidiary or, to the reasonable best
knowledge of Bradley, against any of its directors, officers, employees or
agents or, to the reasonable best knowledge of Bradley, threatened against
Bradley or any Bradley Subsidiary or against any of its directors, officers,
employees or agents, at law or in equity, or before or by any federal or state
commission, board, bureau, agency or instrumentality, that, in the case of
clause (i) or
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(ii), are reasonably likely, individually or in the aggregate, to have
a Bradley Material Adverse Effect.
6.9 ABSENCE OF CERTAIN CHANGES. Except as disclosed in the Bradley
Reports filed with the SEC prior to the date hereof, since December 31, 1994,
Bradley and the Bradley Subsidiaries have conducted their business only in the
ordinary course of such business and there has not been (i) any Bradley
Material Adverse Effect; (ii) as of the date hereof, any declaration, setting
aside or payment of any dividend or other distribution with respect to the
Bradley Common Stock, except dividends of $0.33 per share paid on March 31,
June 30, 1995 and September 29, 1995; or (iii) any material change in Bradley's
accounting principles, practices or methods.
6.10 TAXES. Except as set forth in Section 6.10 of the Bradley Disclosure
Letter:
(a) Bradley and each of the Bradley Subsidiaries has paid or caused
to be paid Taxes, owed by it through the date hereof.
(b) Bradley and each of the Bradley Subsidiaries has timely filed
all federal, state, local and foreign tax returns required to be filed by any
of them through the date hereof, and all such returns completely and accurately
set forth the amount of any Taxes relating to the applicable period.
(c) Neither the IRS nor any other governmental authority is now
asserting by written notice to Bradley or any Bradley Subsidiary or, to the
knowledge of Bradley or the Bradley Subsidiaries, threatening to assert against
Bradley any deficiency or claim for additional Taxes. There is no dispute or
claim concerning any Tax liability of Bradley, either claimed or raised by any
governmental authority, or as to which any officer of Bradley has reason to
believe may be claimed or raised by any governmental authority. No claim has
ever been made by a taxing authority in a jurisdiction where Bradley does not
file reports and returns that Bradley is or may be subject to taxation by that
jurisdiction. There are no security interests on any of the assets of Bradley
or any Bradley Subsidiary that arose in connection with any failure (or alleged
failure) to pay any Taxes. Bradley has never entered into a closing agreement
pursuant to Section 7121 of the Code.
(d) Bradley has not received written notice of any audit of any tax
return filed by Bradley, no such audit is in progress, and Bradley has not been
notified by any tax authority that any such audit is contemplated or pending.
Neither Bradley nor any of the Bradley Subsidiaries has executed or filed with
the IRS or any other taxing authority any agreement now in effect extending the
period for assessment or collection of any income or other taxes, and no
extension of time with respect to any date on which a tax return was or is to
be filed by Bradley is in force. True, correct and complete copies of all
federal, state and local income or franchise tax returns filed by Bradley and
each of the Bradley Subsidiaries and all communications relating thereto have
been delivered to Tucker or made available to representatives of Tucker.
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(e) Bradley and each Bradley Subsidiary has withheld and paid all
taxes required to have been withheld and paid in connection with amounts paid
or owing to any employee, independent contractor, creditor, stockholder or
other party.
(f) Each of the Bradley Subsidiaries of which all the outstanding
capital stock is owned solely by Bradley is a Qualified REIT Subsidiary as
defined in Section 856(i) of the Code.
(g) For all applicable tax years as to which Bradley's federal
income tax returns are subject to audit and Bradley is subject to assessment
for taxes reportable therein, and at all times thereafter up to and including
the date hereof, Bradley has qualified to be treated as a REIT within the
meaning of Sections 856-860 of the Code, including, without limitation, the
requirements of Sections 856 and 857 of the Code. For the periods described in
the preceding sentence, Bradley has met all requirements necessary to be
treated as a REIT for purposes of the income tax provisions of each state in
which Bradley is subject to income tax and which provides for the taxation of
REITs in a manner similar to the treatment of REITs under Sections 856-860 of
the Code, but, with respect to each such state, only for such periods for which
Bradley's income tax returns are subject to audit and Bradley is subject to
assessment for taxes reportable therein.
6.11 BOOKS AND RECORDS. The books of account and other financial records
of Bradley and each of the Bradley Subsidiaries are true, complete and correct
in all material respects, have been maintained in accordance with good business
practices, and are accurately reflected in all material respects in the
financial statements included in the Bradley Reports. The minute books and
other records of Bradley and each of the Bradley Subsidiaries have been made
available to Tucker, contain in all material respects accurate records of all
meetings and accurately reflect in all material respects all other corporate
action of the shareholders and directors and any committees of the Board of
Directors of Bradley and each of the Bradley Subsidiaries.
6.12 PROPERTIES. All of the real estate properties owned by Bradley and
each of the Bradley Subsidiaries are set forth in Section 6.12 of the Bradley
Disclosure Letter. Except as set forth in Section 6.12 of the Bradley
Disclosure Letter, Bradley owns fee simple title to each of the real properties
identified in the Bradley Disclosure Letter (the "Bradley Properties"), free
and clear of Encumbrances. The Bradley Properties are not subject to any
Property Restrictions, except for (i) Encumbrances and Property Restrictions
set forth in Section 6.12 of the Bradley Disclosure Letter, (ii) Property
Restrictions imposed or promulgated by law or any governmental body or
authority with respect to real property, including zoning regulations that do
not adversely affect the current use of the property, materially detract from
the value or materially interfere with the present use of the property, (iii)
Encumbrances and Property Restrictions disclosed on existing title reports or
current surveys (in either case copies of which title reports and surveys have
been delivered or made available to Tucker and are listed in Section 6.12 of
the Bradley Disclosure Letter), and (iv) mechanics , carriers , workmen's or
repairmen's liens and other Encumbrances, Property Restrictions and other
limitations of any kind, if any, which, individually or in the aggregate, are
not material in amount, do not materially detract from the value of or
materially interfere
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with the present use of any of the Bradley Properties subject thereto or
affected thereby, and do not otherwise materially impair business operations
conducted by Bradley and the Bradley Subsidiaries and which have arisen or been
incurred only in the ordinary course of business. Such Encumbrances and
Property Restrictions described in Section 6.12 of the Bradley Disclosure
Letter are not convertible into shares of capital stock of Bradley or any
Bradley Subsidiary nor does Bradley or any Bradley Subsidiary hold a
participating interest therein. Bradley is the named insured in the title
insurance policies set forth in Section 6.12 of the Bradley Disclosure Letter.
Such policies are maintained with respect to each of the Bradley Properties in
an amount of (i) the cost of acquisition of such property or (ii) the cost of
construction by Bradley and the Bradley Subsidiaries of the improvements
located on such property (measured at the time of such construction), except,
in each case, (x) as listed in Section 6.12 of the Bradley Disclosure Letter or
(y) where the failure to maintain such title insurance would not have a Bradley
Material Adverse Effect. Such policies are, at the date hereof, in full force
and effect and no claim has been made against any such policy. To the best
knowledge of Bradley, (i) no certificate, permit or license from any
governmental authority having jurisdiction over any of the Bradley Properties
or any agreement, easement or other right which is necessary to permit the
lawful use and operation of the buildings and improvements on any of the
Bradley Properties or which is necessary to permit the lawful use and operation
of all driveways, roads and other means of egress and ingress to and from any
of the Bradley Properties has not been obtained and is not in full force and
effect, and there is no pending threat of modification or cancellation of any
of same; (ii) no written notice of any violation of any federal, state or
municipal law, ordinance, order, regulation or requirement affecting any
portion of any of the Bradley Properties has been issued by any governmental
authority; (iii) there are no structural defects relating to any of the Bradley
Properties; (iv) there is no Bradley Property whose building systems are not in
working order in any material respect; (v) there is no physical damage to any
Bradley Property in excess of $10,000 for which there is no insurance in effect
covering the full cost of the restoration; or (vi) there is no current
renovation or restoration to any Bradley Property, the cost of which exceeds
$10,000. Except as noted in Section 6.12 of the Bradley Disclosure Letter,
Bradley and the Bradley Subsidiaries have valid and subsisting leases for all
leased Bradley Properties, the use and occupancy of each of the Bradley
Properties complies in all material respects with all applicable codes and
zoning laws and regulations, and Bradley has no knowledge of any pending or
threatened proceeding or action that will in any manner affect the size of, use
of, improvements on, construction on, or access to any of the Bradley
Properties, with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such Bradley Properties. Neither
Bradley nor any of the Bradley Subsidiaries has received any notice to the
effect that (A) any condemnation or rezoning proceedings are pending or
threatened with respect to any of the Bradley Properties or (B) any zoning,
building or similar law, code, ordinance, order or regulation is or will be
violated by the continued maintenance, operation or use of any buildings or
other improvements on any of the Bradley Properties or by the continued
maintenance, operation or use of the parking areas.
6.13 ENVIRONMENTAL MATTERS. None of Bradley, any Bradley Subsidiary or,
to the best knowledge of Bradley, any other person has caused or permitted (a)
the unlawful presence of any Hazardous Materials on any of the Bradley
Properties, or (b) any unlawful spills, releases, discharges or disposal of
Hazardous Materials to have occurred or be presently
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occurring on or from any of the Bradley Properties as a result of any
construction on or operation and use of such properties, which presence or
occurrence would, individually or in the aggregate, have a Bradley Material
Adverse Effect; and in connection with the construction on or operation and use
of the Bradley Properties, neither Bradley nor any of the Bradley Subsidiaries
has failed to comply, in any material respect, with any applicable local, state
or federal environmental law, regulation, ordinance or administrative and
judicial order relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials.
6.14 EMPLOYEE BENEFIT PLANS. All employee benefits plans (within the
meaning of Section 3(3) of ERISA) and other benefit arrangements covering
employees of Bradley and the Bradley Subsidiaries (the "Bradley Benefit Plans")
are listed in Section 6.14 of the Bradley Disclosure Letter. True and complete
copies of the Bradley Benefit Plans have been provided or made available to
Tucker. To the extent applicable, the Bradley Benefit Plans have been
administered in all material respects in accordance with their terms and
comply, in all material respects, with the applicable requirements of ERISA and
the Code. Any Bradley Benefit Plan intended to be qualified under Section
401(a) of the Code has received a favorable determination letter from the IRS
or a determination letter request has been filed with the IRS with respect to
any such plan and is still pending. No Bradley Benefit Plan is covered by
Title IV of ERISA or Section 412 of the Code. No Bradley Benefit Plan nor
Bradley or any of the Bradley Subsidiaries has incurred any liability or
penalty under Section 4975 of the Code or Section 502(i) of ERISA. There are
no pending or anticipated claims against or otherwise involving any of the
Bradley Benefit Plans and no suit, action or other litigation (excluding claims
for benefits incurred in the ordinary course of Bradley Benefit Plan
activities) has been brought against or with respect to any such Bradley
Benefit Plan. All material contributions required to be made as of the date
hereof to the Bradley Benefit Plans have been made or provided for. Neither
Bradley nor any entity under common control with Bradley within the meaning of
ERISA Section 4001 has contributed to, or been required to contribute to, any
multiemployer plan (as defined in Sections 3(37) and 4001(a)(3) of ERISA).
Except as otherwise required by Sections 601 through 608 of ERISA, Section
4980B of the Code and applicable state laws, Bradley does not maintain or
contribute to any plan or arrangement which provides or has any liability to
provide life insurance, medical or other employee welfare benefits to any
employee or former employee upon his retirement or termination of employment
and Bradley has never represented, promised or contracted (whether in oral or
written form) to any employee or former employee that such benefits would be
provided. Except as disclosed in the Bradley Reports, the execution of, and
performance of the transactions contemplated in, this Agreement will not
(either alone or upon the occurrence of any additional subsequent events
directly related to the transaction contemplated herein) constitute an event
under any Bradley Benefit Plan that will or may result in any payment (whether
of severance pay or otherwise), acceleration, forgiveness of indebtedness,
vesting, distribution, increase in benefits or obligations to fund benefits
with respect to any employee, director or consultant of Bradley or any Bradley
Subsidiary.
6.15 LABOR MATTERS. Neither Bradley nor any Bradley Subsidiary is a party
to, or bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor union organization.
There is no unfair labor practice or labor
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arbitration proceeding pending or, to the knowledge of Bradley, threatened
against Bradley or any of the Bradley Subsidiaries relating to their business,
except for any such proceeding which would not have a Bradley Material Adverse
Effect. To the knowledge of Bradley, there are no organizational efforts with
respect to the formation of a collective bargaining unit presently being made
or threatened involving employees of Bradley or any of the Bradley
Subsidiaries.
6.16 NO BROKERS. Neither Bradley nor any of the Bradley Subsidiaries has
entered into any contract, arrangement or understanding with any person or firm
which may result in the obligation of such entity or Tucker to pay any finder s
fees, brokerage or agent's commissions or other like payments in connection
with the negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby, except that Bradley has retained Alex. Brown
as its financial advisor, the arrangements with which have been disclosed in
writing to Tucker prior to the date hereof. Other than the foregoing
arrangements and Tucker's arrangements set forth in Section 5.18 of this
Agreement and Section 5.18 of the Tucker Disclosure Letter, Bradley is not
aware of any claim for payment of any finder's fees, brokerage or agent s
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby.
6.17 OPINION OF FINANCIAL ADVISOR. Bradley has received the opinion of
Alex. Brown to the effect that, as of the date hereof, the Exchange Ratio is
fair to the holders of Bradley Common Stock from a financial point of view, and
has delivered a true and correct copy of such opinion to Tucker.
6.18 TUCKER STOCK OWNERSHIP. Neither Bradley nor any of the Bradley
Subsidiaries owns any shares of capital stock of Tucker or other securities
convertible into capital stock of Tucker.
6.19 RELATED PARTY TRANSACTIONS. Set forth in Section 6.19 of the Bradley
Disclosure Letter is a list of all arrangements, agreements and contracts
entered into by Bradley or any of the Bradley Subsidiaries (which are or will
be in effect as of or after the date of this Agreement) with (i) any consultant
in excess of $25,000 or which may not be terminated at will by Bradley, (ii)
any person who is an officer, director or affiliate of Bradley or any of the
Bradley Subsidiaries, any relative of any of the foregoing or any entity of
which any of the foregoing is an affiliate or (iii) any person who acquired
Bradley Common Stock in a private placement. All such documents are listed in
Section 6.19 of the Bradley Disclosure Letter and the copies of such documents,
which have previously been provided or made available to Tucker and its
counsel, are true and correct.
6.20 CONTRACTS AND COMMITMENTS. Section 6.20 of the Bradley Disclosure
Letter sets forth (i) all notes, debentures, bonds and other evidence of
indebtedness which are secured or collateralized by mortgages, deeds of trust
or other security interests in the Bradley Properties or personal property of
Bradley and each of the Bradley Subsidiaries and (ii) each Commitment entered
into by Bradley or any of the Bradley Subsidiaries which may result in total
payments or liability in excess of $10,000. Copies of the foregoing are listed
in Section 6.20 of the Bradley Disclosure Letter and the copies of such
documents, which have
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previously been provided or made available to Tucker and its counsel, are true
and correct copies. None of Bradley or any of the Bradley Subsidiaries has
received any notice of a default that has not been cured under any of the
documents described in clause (i) above or is in default respecting any payment
obligations thereunder beyond any applicable grace periods, except where such
default would not have a Bradley Material Adverse Effect. All options of
Bradley or any of the Bradley Subsidiaries to purchase real property are set
forth in Section 6.20 of the Bradley Disclosure Letter and such options and
Bradley's or any of the Bradley Subsidiaries rights thereunder are in full
force and effect. All joint venture agreements to which Bradley or any of the
Bradley Subsidiaries is a party are set forth in Section 6.20 of the Bradley
Disclosure Letter and neither Bradley nor any of the Bradley Subsidiaries is in
default with respect to any obligations, which individually or in the aggregate
are material, thereunder.
6.21 DEVELOPMENT RIGHTS. Set forth in Section 6.21 of the Bradley
Disclosure Letter is a list of all agreements entered into by Bradley or any of
the Bradley Subsidiaries relating to the development or construction of real
estate properties. The copies of such agreements are listed in Section 6.21 of
the Bradley Disclosure Letter and the copies of such documents, which have
previously been provided or made available to Tucker and its counsel, are true
and correct.
6.22 BRADLEY COMMON STOCK. The issuance and delivery by Bradley of shares
of Bradley Common Stock in connection with the Merger and this Agreement have
been duly and validly authorized by all necessary corporate action on the part
of Bradley except for the approval of its stockholders contemplated by this
Agreement. The shares of Bradley Common Stock to be issued in connection with
the Merger and this Agreement, when issued in accordance with the terms of this
Agreement, will be validly issued, fully paid, nonassessable and free of
preemptive rights.
6.23 CONVERTIBLE SECURITIES. Bradley has no outstanding options, warrants
or other securities exercisable for, or convertible into, shares of Bradley
Common Stock, the terms of which would require any anti-dilution adjustments by
reason of the consummation of the transactions contemplated hereby.
6.24 DISCLOSURE. The representations, warranties and statements made by
Bradley in this Agreement, the Ancillary Agreements and in the Bradley
Disclosure Letter and in the certificates and other documents, delivered
pursuant hereto do not contain any untrue statement of a material fact, and,
when taken together, do not omit to state any material fact necessary to make
such representations, warranties and statements, in light of the circumstances
under which they are made, not misleading.
6.25 DEFINITION OF BRADLEY'S KNOWLEDGE. As used in this Agreement, the
phrase to the knowledge of Bradley or to the best knowledge of Bradley (or
words of similar import) means the knowledge or the best knowledge of those
individuals identified in Section 6.25 of the Bradley Disclosure Letter, and
includes any fact, matter or circumstance which any of such individuals, as an
ordinary and prudent business person employed in the same capacity in the same
type and size of business as Bradley, should have known.
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ARTICLE 7
7. Covenants.
----------
7.1 ACQUISITION PROPOSALS. Unless and until this Agreement shall have
been terminated in accordance with its terms, Tucker agrees and covenants (a)
that neither it nor any Tucker Subsidiary shall, and each of them shall direct
and use its best efforts to cause its respective officers, directors,
employees, agents and representatives (including, without limitation, any
investment banker, attorney or accountant retained by it or any of the Tucker
Subsidiaries) not to, directly or indirectly, initiate, solicit or encourage
any inquiries or the making or implementation of any proposal or offer
(including, without limitation, any proposal or offer to its stockholders) with
respect to a merger, acquisition, tender offer, exchange offer, consolidation
or similar transaction involving, or any purchase of 10% or more of the assets
or any equity securities or partnership interests (including, without
limitation, TOP Units) of, Tucker or any Tucker Subsidiary, other than the
transactions contemplated by this Agreement (any such proposal or offer being
hereinafter referred to as an "Acquisition Proposal") or engage in any
negotiations concerning, or provide any confidential information or data to, or
have any discussions with, any person relating to an Acquisition Proposal, or
otherwise facilitate any effort or attempt to make or implement an Acquisition
Proposal; (b) that Tucker will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing and will take the necessary
steps to inform the individuals or entities referred to above of the
obligations undertaken in this Section 7.1; and (c) that Tucker will notify
Bradley immediately if any such inquiries or proposals are received by, any
such information is requested from, or any such negotiations or discussions are
sought to be initiated or continued with, it; PROVIDED, HOWEVER, that nothing
contained in this Section 7.1 shall prohibit the Board of Directors of Tucker,
from (i) furnishing information to or entering into discussions or negotiations
with, any person or entity that makes an unsolicited bona fide Acquisition
Proposal, if, and only to the extent that, (A) the Board of Directors of
Tucker, after consultation with and based upon the advice of Mayer, Brown &
Platt, or another nationally recognized law firm selected by Tucker, determines
in good faith that such action is required for the Board of Directors to comply
with its fiduciary duties to stockholders under applicable law, (B) prior to
furnishing such information to, or entering into discussions or negotiations
with, such person or entity, Tucker provides written notice to Bradley to the
effect that it is furnishing information to, or entering into discussions or
negotiations with, such person or entity, and (C) Tucker keeps Bradley informed
of the status of any such discussions or negotiations; and (ii) to the extent
applicable, complying with Rule 14e-2 and Rule 14a-9 promulgated under the
Exchange Act with regard to an Acquisition Proposal. Notwithstanding anything
to the contrary set forth herein, nothing in this Section 7.1 shall (x) permit
Tucker to terminate this Agreement (except as specifically provided in Article
9 hereof), (y) except as specifically provided in Article 9 hereof, permit
Tucker or any Tucker Subsidiary to enter into any agreement with respect to an
Acquisition Proposal during the term of this Agreement (it being agreed that
during the term of this Agreement, neither Tucker nor any Tucker Subsidiary
shall enter into any agreement with any person that provides for, or in any way
facilitates, an Acquisition Proposal), or (z) affect any other obligation of
any party under this Agreement.
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7.2 CONDUCT OF BUSINESSES.
(a) Prior to the Effective Time, except as specifically permitted by
this Agreement, unless the other party has consented in writing thereto,
Bradley
and Tucker:
(i) Shall use their reasonable best efforts, and shall cause
each of their respective Subsidiaries to use their reasonable best efforts, to
preserve intact their business organizations and goodwill and keep available
the services of their respective officers and employees;
(ii) Shall confer on a regular basis with one or more
representatives of the other to report operational matters of materiality and,
subject to Section 7.1, any proposals to engage in material transactions;
(iii) Shall promptly notify the other of any material
emergency or other material change in the condition (financial or otherwise),
business, properties, assets, liabilities, prospects or the normal course of
their businesses or in the operation of their properties, any material
governmental complaints, investigations or hearings (or communications
indicating that the same may be contemplated), or the breach in any material
respect of any representation or warranty contained herein; and
(iv) Shall promptly deliver to the other true and correct copies
of any report, statement or schedule filed with the SEC subsequent to the date
of this Agreement.
(b) Prior to the Effective Time, unless Bradley has consented as set
forth below in this clause (b) Tucker:
(i) Shall, and shall cause each Tucker Subsidiary to, conduct
its operations according to their usual, regular and ordinary course in
substantially the same manner as heretofore conducted, subject to clauses
(ii)-(xii) below;
(ii) Shall not, and shall cause each Tucker Subsidiary not to,
acquire, enter into an option to acquire or exercise an option or contract to
acquire additional real property, incur additional indebtedness, encumber
assets or commence construction of, or enter into any agreement or commitment
to develop or construct, shopping centers or any other type of real estate
projects (including, but not limited, to options to purchase real property
listed on Section 5.29 of the Tucker Disclosure Letter), except that (i) Tucker
may incur additional indebtedness under the Amended and Restated Revolving
Credit Agreement dated as of June 27, 1994 among TOP, Tucker and The First
National Bank of Boston, as agent, and (ii) except that Tucker may extend the
maturity of the current mortgage financing encumbering the Pavilion at Mequon
until June 30, 1996 upon the same terms and conditions which are currently in
effect for such financing;
(iii) Shall not amend its Charter or Bylaws, and shall cause
each Tucker Subsidiary not to amend its Charter, Bylaws, joint venture
documents, partnership agreements or equivalent documents except (A) as
contemplated by this Agreement or (B) in
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the event that the Merger is not consummated prior to April 1, 1996, Tucker may
adopt an amendment to the TOP Partnership Agreement, substantially in the form
of Exhibit I hereto;
(iv) Shall not (A) except pursuant to the exercise of options,
warrants, conversion rights and other contractual rights existing on the date
hereof and disclosed pursuant to this Agreement, issue any shares of its
capital stock, effect any stock split, reverse stock split, stock dividend,
recapitalization or other similar transaction, (B) grant, confer or award any
option, warrant, conversion right or other right not existing on the date
hereof to acquire any shares of its capital stock, (C) increase any
compensation or enter into or amend any employment agreement with any of its
present or future officers or directors, or (D) adopt any new employee benefit
plan (including any stock option, stock benefit or stock purchase plan) other
than the Severance Plan and the Severance Agreements or amend any existing
employee benefit plan in any material respect, except for changes which are
less favorable to participants in such plans (in connection with the foregoing,
Tucker hereby agrees that (i) the aggregate payments which may be paid after
the date hereof under the Tucker Property Manager Bonus Program shall not
exceed $150,000 and (ii) Tucker shall award a maximum of $25,000 as bonus
compensation for employees who are not executive officers at or immediately
prior to the Effective Time);
(v) Shall not (A) declare, set aside or pay any dividend or
make any other distribution or payment with respect to any shares of its
capital stock, except in compliance with Section 7.15 of this Agreement, or (B)
except in connection with the use of shares of capital stock to pay the
exercise price or tax withholding in connection with the Tucker Stock Option
Plan, directly or indirectly redeem, purchase or otherwise acquire any shares
of its capital stock or capital stock of any of the Tucker Subsidiaries, or
make any commitment for any such action;
(vi) Shall not, and shall not permit any of the Tucker
Subsidiaries to, sell, lease or otherwise dispose of (A) any Tucker Properties
or any portion thereof or any of the capital stock of or partnership or other
interests in any of the Tucker Subsidiaries or (B) except in the ordinary
course of business, any of its other assets which are material, individually or
in the aggregate;
(vii) Shall not, and shall not permit any of the Tucker
Subsidiaries to, make any loans, advances or capital contributions to, or
investments in, any other person;
(viii) Shall not, and shall not permit any of the Tucker
Subsidiaries to, pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction, in the ordinary
course of business consistent with past practice or in accordance with their
terms, of liabilities reflected or reserved against in, or contemplated by, the
most recent consolidated financial statements (or the notes thereto) of Tucker
included in the Tucker Reports or incurred in the ordinary course of business
consistent with past practice;
(ix) Shall not, and shall not permit any of the Tucker
Subsidiaries to, enter into any Commitment which may result in total payments
or liability by or to it in excess
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of $25,000 (provided, however, that nothing contained in this clause (ix) shall
permit Tucker or any Tucker Subsidiary to take any action prohibited by the
other provisions of this Section 7.2); provided further, that notwithstanding
anything in this Section 7.2(b) to the contrary, Tucker's current Senior Vice
President of Asset Management shall be permitted on behalf of Tucker or a
Tucker Subsidiary to enter into a Commitment (A) to make any repairs and/or
prevent damage to any Tucker Properties as is necessary in the event of an
emergency situation as long as he uses his reasonable best efforts to contact
Bradley prior to entering into such Commitment and provides Bradley with a copy
of such Commitment on the day after such Commitment is entered into and (B) to
the extent that the failure to enter into such Commitment will result in Tucker
being in default under the terms of any of the Tucker Leases so long as Tucker
has provided Bradley with five days prior written notice that it is entering
into such Commitment;
(x) Except for the Severance Plan and the Severance Agreements,
shall not, and shall not permit any of the Tucker Subsidiaries to, enter into
any Commitment with any officer, director, consultant or affiliate of Tucker or
any of the Tucker Subsidiaries;
(xi) Shall provide Bradley with a reasonable opportunity to
review any comment on any federal income tax returns filed by Tucker or any
Tucker Subsidiary prior to the Effective Time; and
(xii) Shall not, without prior notification and consultation
with Bradley, terminate any employee under circumstances which would result in
severance payments to such employee pursuant to the Severance Plan or pay any
severance benefits to any employee under the terms of the Severance Plan on
account of such employee's purported termination for Good Reason (within the
meaning of the Severance Plan) on account of a substantial adverse change in
his position, authorities, responsibilities or status.
Bradley shall respond to any consent requested by Tucker pursuant to this
Section 7.2(b) within five (5) business days of the receipt of such request.
In the event no response is received by Tucker by the expiration of such five
business day period, such consent shall be deemed given.
(c) Notwithstanding anything to the contrary set forth in this
Agreement and without limiting any of the other rights of Bradley set forth
herein, between the date of this Agreement and the Effective Time, Bradley and
the Bradley Subsidiaries may enter into leases with respect to all or any
portion of the Bradley Properties, acquire, lease, enter into an option to
acquire, lease or exercise an option or contract to acquire, additional real
property, incur additional indebtedness, encumber assets or commence
construction of, or enter into any agreement or commitment to develop or
construct, shopping centers or other real estate projects.
7.3 MEETINGS OF STOCKHOLDERS. Each of Bradley and Tucker will take all
action necessary in accordance with applicable law and its Charter and Bylaws
to convene a meeting of its stockholders as promptly as practicable to consider
and vote upon the approval of this Agreement and the transactions contemplated
hereby. The Board of Directors of Bradley and
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Tucker each shall recommend that its stockholders approve this Agreement and
the transactions contemplated hereby and Bradley and Tucker each shall use
their reasonable best efforts to obtain such approval, including, without
limitation, by timely mailing the joint proxy statement/prospectus contained in
the Form S-4 (as defined in Section 7.7 hereof) to their respective
stockholders; PROVIDED, HOWEVER, that nothing contained in this Section 7.3
shall prohibit the Board of Directors of Bradley or the Board of Directors of
Tucker from failing to make such recommendation or using their reasonable best
efforts to obtain such approval if the Board of Directors of Bradley or Tucker,
as the case may be, has determined in good faith, after consultation with and
based upon the advice of Mayer, Brown & Platt or Goodwin, Procter & Hoar, or
another nationally recognized firm selected by Tucker or Bradley, as the case
may be, that such action is necessary for such Board of Directors to comply
with its fiduciary duties to its stockholders under applicable law. Bradley
and Tucker shall coordinate and cooperate with respect to the timing of such
meetings and shall use their reasonable best efforts to hold such meetings on
the same day. It shall be a condition to the mailing of the Form S-4 that (i)
Bradley shall have received a "comfort" letter from Coopers & Lybrand LLP,
independent public accountants for Tucker, dated as of a date within two
business days before the date on which the Form S-4 shall become effective,
with respect to the financial statements of Tucker included or incorporated in
the Form S-4, in form and substance reasonably satisfactory to Bradley, and
customary in scope and substance for "comfort" letters delivered by independent
public accountants in connection with registration statements and proxy
statements similar to the Form S-4, and (ii) Tucker shall have received a
"comfort" letter from KPMG Peat Marwick LLP, independent public accountants for
Bradley, dated as of a date within two business days before the date on which
the Form S-4 shall become effective, with respect to the financial statements
of Bradley included or incorporated in the Form S-4, in form and substance
reasonably satisfactory to Tucker, and customary in scope and substance for
"comfort" letters delivered by independent public accountants in connection with
registration statements and proxy statements similar to the Form S-4.
7.4 FILINGS; OTHER ACTION. Subject to the terms and conditions herein
provided, Tucker and Bradley shall: (a) to the extent required, promptly make
their respective filings and thereafter make any other required submissions
under the HSR Act with respect to the Merger; (b) use all reasonable best
efforts to cooperate with one another in (i) determining which filings are
required to be made prior to the Effective Time with, and which consents,
approvals, permits or authorizations are required to be obtained prior to the
Effective Time from, governmental or regulatory authorities of the United
States, the several states and foreign jurisdictions and any third parties in
connection with the execution and delivery of this Agreement, and the Ancillary
Agreements and the consummation of the transactions contemplated by such
agreements and (ii) timely making all such filings and timely seeking all such
consents, approvals, permits or authorizations; (c) use all reasonable best
efforts to obtain in writing any consents required from third parties to
effectuate the Merger, such consents to be in reasonably satisfactory form to
Tucker and Bradley; and (d) use all reasonable best efforts to take, or cause
to be taken, all other action and do, or cause to be done, all other things
necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement and the Ancillary Agreements. If,
at any time after the Effective Time, any further action is necessary or
desirable to carry out the purpose of this Agreement or the Ancillary
Agreements, the proper officers and directors of Bradley and
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Tucker shall take all such necessary action.
7.5 INSPECTION OF RECORDS. From the date hereof to the Effective Time,
each of Tucker and Bradley shall allow all designated officers, attorneys,
accountants and other representatives of the other access at all reasonable
times to the records and files, correspondence, audits and properties, as well
as to all information relating to commitments, contracts, titles and financial
position, or otherwise pertaining to the business and affairs, of Tucker and
Bradley and their respective subsidiaries.
7.6 PUBLICITY. Bradley and Tucker shall consult with each other before
issuing any press release or otherwise making any public statements with
respect to this Agreement or any transaction contemplated herein and shall not
issue any such press release or make any such public statement without the
prior consent of the other party, which consent shall not be unreasonably
withheld; PROVIDED, HOWEVER, that a party may, without the prior consent of the
other party, issue such press release or make such public statement as may be
required by law or the rules of the NYSE if it has used its reasonable best
efforts to consult with the other party and to obtain such party's consent but
has been unable to do so in a timely manner.
7.7 REGISTRATION STATEMENT. Bradley and Tucker shall cooperate and
promptly prepare and Bradley shall file with the SEC as soon as practicable a
Registration Statement on Form S-4 under the Securities Act, with respect to
the shares of Bradley Common Stock issuable in the Merger, a portion of which
Form S-4 shall also serve as the joint proxy statement with respect to the
meetings of the stockholders of Tucker and of Bradley in connection with the
Merger (in its entirety, the Form S-4"). The respective parties will cause
the Form S-4 to comply as to form in all material respects with the applicable
provisions of the Securities Act, the Exchange Act and the rules and
regulations thereunder. Each of Bradley and Tucker shall furnish all
information about itself and its business and operation and all necessary
financial information to the other as the other may reasonably request in
connection with the preparation of the Form S-4. Bradley shall use its
reasonable best efforts, and Tucker will cooperate with Bradley, to have the
Form S-4 declared effective by the SEC as promptly as practicable. Bradley
shall use its reasonable best efforts to obtain, prior to the effective date of
the Form S-4, all necessary state securities law or Blue Sky permits or
approvals required to carry out the transactions contemplated by this Agreement
and will pay all expenses incident thereto. Bradley agrees that the Form S-4
and each amendment or supplement thereto at the time of mailing thereof and at
the time of the respective meetings of stockholders of Bradley and Tucker, will
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the foregoing shall not apply to the extent that any
such untrue statement of a material fact or omission to state a material fact
was made by Bradley in reliance upon and in conformity with information
concerning Tucker furnished to Bradley by Tucker for use in the Form S-4.
Tucker agrees that the information provided by it for inclusion in the Form S-4
and each amendment or supplement thereto, at the time of mailing thereof and at
the time of the respective meetings of stockholders of Bradley and Tucker, will
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were
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made, not misleading. Bradley will advise and deliver copies (if any) to
Tucker, promptly after it receives notice thereof, of the time when the Form
S-4 has become effective or any supplement or amendment has been filed, the
issuance of any stop order, the suspension of the qualification of the Bradley
Common Stock issuable in connection with the Merger for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Form S-4 or
comments thereon and responses thereto or requests by the SEC for additional
information.
7.8 LISTING APPLICATION. Bradley shall promptly prepare and submit to
the NYSE a listing application covering the shares of Bradley Common Stock
issuable in the Merger, and shall use its best efforts to obtain, prior to the
Effective Time, approval for the listing of such Bradley Common Stock, subject
to official notice of issuance.
7.9 FURTHER ACTION. Each party hereto shall, subject to the fulfillment
at or before the Effective Time of each of the conditions of performance set
forth herein or the waiver thereof, perform such further acts and execute such
documents as may reasonably be required to effect the Merger. Without limiting
the foregoing, at the Closing, Tucker shall deliver, deeds, affidavits or other
documents necessary for Bradley to obtain endorsements to existing title
insurance policies or new title insurance policies which (i) insure that
Bradley is the general partner (by merger) of the record owner of the Tucker
Properties, subject only to the Encumbrances and (ii) contain a so-called
non-imputation endorsement (such non-imputation endorsement insuring that
Bradley will not be charged with the imputed knowledge of Tucker, the Tucker
Subsidiaries and Affiliates thereof). In connection with the Closing, Tucker
and each Tucker Subsidiary shall use its best efforts to deliver to Bradley
such deeds, bills of sale, assignments, certificates and affidavits as are
required to effectuate the consummation of the transactions described herein.
7.10 AFFILIATES OF TUCKER.
(a) At least 30 days prior to the Closing Date, Tucker shall deliver
to Bradley a list of names and addresses of those persons who were, in Tucker s
reasonable judgment, at the record date for its stockholders meeting to
approve the Merger, affiliates (each such person, an Affiliate") of Tucker
within the meaning of Rule 145. Tucker shall provide Bradley such information
and documents as Bradley shall reasonably request for purposes of reviewing
such list. Tucker shall use its reasonable best efforts to deliver or cause to
be delivered to Bradley, prior to the Closing Date, from each of the Affiliates
of Tucker identified in the foregoing list, an Affiliate Letter in the form
attached hereto as Exhibit D. Bradley shall be entitled to place legends as
specified in such Affiliate Letters on the certificates evidencing any shares
of Bradley Common Stock to be received by such Affiliates pursuant to the terms
of this Agreement, and to issue appropriate stop transfer instructions to the
transfer agent for the shares of Bradley Common Stock, consistent with the
terms of such Affiliate Letters.
(b) Bradley shall file the reports required to be filed by it under
the Exchange Act and the rules and regulations adopted by the SEC thereunder,
and it will take such further action as any Affiliate of Tucker may reasonably
request, all to the extent required from time to time to enable such Affiliate
to sell shares of Bradley Common Stock
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received by such Affiliate in the Merger without registration under the
Securities Act pursuant to (i) Rule 145(d)(1) or (ii) any successor rule or
regulation hereafter adopted by the SEC.
7.11 EXPENSES. Subject to the provisions of Article 9, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses, except
that (a) the filing fee in connection with the HSR Act filing, if any, (b) the
filing fee in connection with the filing of the Form S-4 or Proxy
Statement/Prospectus with the SEC and (c) the expenses incurred for printing
and mailing the Form S-4, shall be shared equally by Tucker and Bradley. All
costs and expenses for professional services rendered pursuant to the
transactions contemplated by this Agreement including, but not limited to,
investment banking and legal services, will be paid by each party incurring
such services.
7.12 INDEMNIFICATION.
(a) Bradley agrees that all rights to indemnification or exculpation
now existing in favor of the directors, officers, employees, advisors and
agents of Tucker and the Tucker Subsidiaries (including, without limitation,
TOP) as provided in their respective charters or By-Laws in effect as of the
date hereof with respect to matters occurring at or prior to the Effective Time
shall survive the Merger and shall continue in full force and effect. For a
period of six years after the Effective Time, Bradley shall not amend, repeal
or otherwise modify the provisions in its Charter and Bylaws providing for
exculpation of director liability and indemnification in any manner that would
materially and adversely affect the rights thereunder of individuals who at any
time prior to the Effective Time were directors, officers, employees, advisors
or agents of Tucker in respect of actions or omissions occurring at or prior to
the Effective Time (including, without limitation, the transactions
contemplated by this Agreement), unless such modification is required by law;
PROVIDED, HOWEVER, that in the event any claim or claims are asserted or made
either prior to the Effective Time or within such six year period, all rights
to indemnification in respect of any such claim or claims shall continue until
disposition of any and all such claims. In connection with the execution of
this Agreement, all directors of Tucker shall enter into amendments to their
existing indemnification agreements with Tucker and Bradley, substantially in
the form of Exhibit H hereto, which will be effective as of the Effective Time.
Nothing in the following paragraphs of this Section 7.12 shall create an
inference, either by omission or inclusion, that limits in any way the rights
set forth herein.
(b) In addition to the rights provided in Section 7.12(a) above, in
the event of any threatened or actual claim, action, suit, proceeding or
investigation, whether civil, criminal or administrative, including, without
limitation, any action by or on behalf of any or all security holders of Tucker
or Bradley or by or in the right of Tucker or Bradley or any claim, action,
suit, proceeding or investigation in which any person who is now, or has been,
at any time prior to the date hereof, or who becomes prior to the Effective
Time, a director of Tucker (the Indemnified Parties"), is, or is threatened to
be, made a party based in whole or in part on, or arising in whole or in part
out of, or pertaining to (i) the fact that he is or was a director of Tucker or
any of the Tucker Subsidiaries (including, without limitation, TOP) or any
action or omission by such person in his capacity as a director, or (ii) this
Agreement or
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the transactions contemplated by this Agreement, whether in any case asserted
or arising before or after the Effective Time, Bradley on one hand and the
Indemnified Parties on the other hand, hereto agree to cooperate and use their
reasonable best efforts to defend against and respond thereto. It is
understood and agreed that, after the Effective Time, Bradley shall indemnify
and hold harmless, as and to the full extent permitted by applicable law, each
Indemnified Party against any losses, claims, liabilities, expenses (including
reasonable attorneys fees and expenses), judgments, fines and amounts paid in
settlement in connection with any such threatened or actual claim, action,
suit, proceeding or investigation. In addition, after the Effective Time, in
the event of any such threatened or actual claim, action, suit, proceeding or
investigation, Bradley shall promptly pay and advance expenses and costs
incurred by each Indemnified Person as they become due and payable in advance
of the final disposition of any claim, action, suit, proceeding or
investigation to the fullest extent and in the manner permitted by law.
Notwithstanding the foregoing, Bradley shall pay for only one counsel and one
local counsel for all Indemnified Parties unless the use of one such counsel
and one local counsel for such Indemnified Parties would present such counsel
with a conflict of interest, in which case Bradley shall employ other counsel
to the extent necessary to avoid a conflict of interest with any counsel or
party involved in the matter. Notwithstanding anything to the contrary set
forth in this Agreement, Bradley (i) shall not be liable for any settlement
effected without its prior written consent, and (ii) shall not have any
obligation hereunder to any Indemnified Party if a court of competent
jurisdiction shall determine in a final and non-appealable order that
indemnification of such Indemnified Party in the manner contemplated hereby is
prohibited by applicable law. In the event of such a final and non-appealable
determination by a court that such indemnification is prohibited by applicable
law, the Indemnified Person shall promptly refund to Bradley the amount of all
expenses theretofore advanced pursuant hereto. Any Indemnified Party wishing
to claim indemnification under this Section, upon learning of any such claim,
action, suit, proceeding or investigation, shall promptly notify Bradley of
such claim and the relevant facts and circumstances with respect thereto,
provided that the failure to provide such notice shall not affect the
obligations of Bradley except to the extent such failure to notify materially
prejudices Bradley's ability to defend such claim, action, suit, proceeding or
investigation.
(c) At or prior to the Effective Time, Bradley shall purchase
directors liability insurance policy coverage for Tucker's directors and
Executive Officers as provided in Schedule 7.12 hereto.
(d) This Section 7.12 is intended for the irrevocable benefit of,
and to grant third party rights to, the Indemnified Parties and their
successors, assigns and heirs and shall be binding on all successors and
assigns of Bradley. Each of the Indemnified Parties shall be entitled to
enforce the covenants contained in this Section 7.12 and Bradley acknowledges
and agrees that each Indemnified Party would suffer irreparable harm and that
no adequate remedy at law exists for a breach of such covenants.
(e) To the extent permitted by law, all rights of indemnification for
the benefit of any director of Tucker shall be mandatory rather than
permissive.
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(f) Any determination required to be made with respect to whether a
party's conduct complies with the standards set forth in the Charter or By-Laws
of the Surviving Corporation or under applicable law shall be made by (i)
Sidley & Austin or (ii) in the event Sidley & Austin shall not be available to
make such determination, then Skadden, Arps, Slate, Meagher & Flom or (iii) in
the event that neither Sidley & Austin nor Skadden, Arps, Slate, Meagher & Flom
shall be available to make such determination, then Kirkland & Ellis, or (iv)
in the event that none of Sidley & Austin, Skadden, Arps, Slate, Meagher & Flom
or Kirkland & Ellis shall be available to make such determination, then O
Melveny & Myers (in each case whose reasonable fees and expenses shall be paid
by the Surviving Corporation).
(g) Notwithstanding anything to the contrary set forth in this
Agreement, in the event any Indemnified Party is required to file suit against
Bradley to enforce the indemnity obligations provided for in this Section, it
shall be entitled to all expenses, including reasonable attorneys fees and
expenses, which it has incurred in enforcing its rights hereunder.
(h) In the event that Bradley or any of its successors or assigns
(i) consolidates with or merges into any other person or entity and shall not
be the continuing or surviving corporation or entity of such consolidation or
merger or (ii) transfers or conveys all or substantially all of its properties
and assets to any person or entity, then, and in each such case, proper
provision shall be made so that the successors and assigns of Bradley assume
the obligations set forth in this Section.
7.13 REORGANIZATION. From and after the date hereof and until the
Effective Time, neither Bradley nor Tucker nor any of their respective
subsidiaries or other affiliates shall (i) knowingly take any action, or
knowingly fail to take any action, that would jeopardize qualification of the
Merger as a reorganization within the meaning of Section 368(a)(1)(A) of the
Code or (ii) enter into any contract, agreement, commitment or arrangement with
respect to the foregoing. Following the Effective Time, Bradley shall use its
best efforts to conduct its business in a manner that would not jeopardize the
characterization of the Merger as a reorganization within the meaning of
Section 368(a) of the Code.
7.14 CERTAIN BENEFITS.
(a) Bradley agrees that Tucker and the Tucker Subsidiaries, and the
Surviving Corporation and its subsidiaries after the Effective Time, will
provide benefit plans to employees of Tucker and the Tucker Subsidiaries that,
at the option of Bradley, either (i) will be no less favorable, in the
aggregate, than those provided by Bradley and the Bradley Subsidiaries to their
employees or (ii) will, in the aggregate, be no less favorable than those
provided by Tucker and the Tucker Subsidiaries to their employees immediately
prior to the date of this Agreement. Nothing contained in this Agreement shall
be construed to grant any right of continued employment to any present employee
of Tucker or any of the Tucker Subsidiaries.
(b) Except for normal increases in the ordinary course of business
that are consistent with past practices and cost increases of third party
providers necessary to maintain
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benefits at current levels that, in the aggregate, do not result in a material
increase in benefits or compensation expense to Tucker or any of the Tucker
Subsidiaries or as set forth in Section 5.16 of the Tucker Disclosure Letter,
Tucker will not, and will not permit any of the Tucker Subsidiaries to, adopt
or amend (except as may be required by law and except for the establishment of
the Severance Plan and the Severance Agreements) any bonus, profit sharing,
compensation, severance, termination, stock option, pension, retirement,
deferred compensation, employment or other employee benefit agreements, trusts,
plans, funds or other arrangements for the benefit or welfare of any director,
officer or employee that increase in any manner the compensation, retirement,
welfare or fringe benefits of any director, officer or employee or pay any
benefit not required by any existing plan or arrangement (including without
limitation the granting of stock options) or take any action or grant any
benefit not expressly required under the terms of any existing agreements,
trusts, plans, funds or other such arrangements or enter into any contract,
agreement, commitment or arrangement to any of the foregoing.
7.15 DIVIDENDS.
(a) Prior to the Effective Time, Tucker and Bradley shall cooperate
and coordinate with each other so that (i) the record date for regular
quarterly dividends and distributions with respect to the fourth quarter of
1995 and thereafter until the Effective Time shall occur on the same date, (ii)
the payment date for each such regular quarterly dividend and distribution
shall be on the last day of such applicable quarter, and (iii) the amount of
each such regular quarterly dividend and distribution shall not exceed $.25 per
quarter for Tucker and $.33 per quarter for Bradley.
(b) For its taxable year ending at the Effective Time (the "Short
Taxable Year") Tucker will not have any (i) net income from foreclosure
property as defined by Section 857(b)(4) of the Code or (ii) net income
derived from prohibited transactions as defined by Section 857(b)(6) of the
Code. Immediately prior to the Effective Time, Tucker will cause to be
distributed a dividend (within the meaning of Section 316 of the Code) to its
stockholders (the "Merger Dividend") of an amount such that (i) Tucker's real
estate investment trust taxable income as defined in Section 857(b)(2) of the
Code for the Short Taxable Year shall equal zero; (ii) Tucker's current and
accumulated earnings and profits as described in Section 312 of the Code for
the Short Taxable Year shall equal zero; and (iii) Tucker's deduction for
dividends paid during the taxable year (within the meaning of Sections 561 and
857(a)(1) of the Code and determined without regard to "capital gain dividends"
within the meaning of Section 857(b) of the Code) for the Short Taxable Year
will equal or exceed the amount set forth in Section 857(a)(1)(A) and (B) of
the Code.
(c) Tucker will do all things necessary to ensure that it continues
to meet all of the requirements to be treated as a REIT for all purposes under
the Code and the income tax provisions of the State of Illinois (and any other
state in which Tucker is subject to tax and which provides for the taxation of
REITs in a manner similar to the treatment of REITs under Sections 856-860 of
the Code) and shall make any and all required filings in connection therewith,
including providing Bradley with all information, documentation and assistance
Bradley may reasonably request in order for Bradley to mail the stockholder
demand letters
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required by Treasury Regulation [Section] 1.857-8 within 30 days after the
Effective Time and to take any other actions that may be necessary or
appropriate for Bradley, as the Surviving Corporation, to take in order to
maintain Tucker's status as a REIT through the Effective Time.
(d) Bradley shall pay a dividend in connection with the Closing to
its stockholders in an amount per share equal to the quotient obtained by
dividing (x) the Merger Dividend per share paid by Tucker pursuant to Section
7.15(b) by (y) the Exchange Ratio.
(e) Until the Effective Time, Bradley shall not declare, set aside
or pay any dividend or make any other distribution or payment with respect to
any of its respective shares of capital stock which is extraordinary. For
the purposes of this Agreement, a dividend, distribution or payment with
respect to capital stock shall be considered extraordinary if (a) the Board
of Directors of Bradley designates such cash payment as extraordinary when
declared or (b) the amount by which any cash payment exceeds 200% of the most
recent cash dividend declared by the Board of Directors of Bradley.
7.16 IRS PRIVATE LETTER RULING. Tucker shall cooperate and assist Bradley
in submitting an application for and obtaining the private letter ruling from
the IRS which is described in Section 8.3(i) hereto.
ARTICLE 8
8. Conditions.
-----------
8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligation of each party to effect the Merger and the other
transactions contemplated herein shall be subject to the fulfillment at or
prior to the Effective Time of the following conditions, any or all of which
may be waived, in whole or in part by the parties hereto, to the extent
permitted by applicable law:
(a) This Agreement and the transactions contemplated hereby shall
have been approved by the requisite vote of stockholders of Bradley and Tucker.
(b) The waiting period applicable to the consummation of the Merger
under the HSR Act, if applicable, shall have expired or been terminated.
(c) Neither of the parties hereto shall be subject to any order,
ruling or injunction of a court of competent jurisdiction which prohibits the
consummation of the transactions contemplated by this Agreement. In the event
any such order, ruling or injunction shall have been issued, each party agrees
to use its best efforts to have any such order, ruling or injunction lifted,
stayed or reversed.
(d) The Form S-4 shall have been declared effective by the SEC under
the Securities Act, and no stop order suspending the effectiveness of the Form
S-4 shall have been
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issued by the SEC, and no proceedings for that purpose shall have been
initiated or, to the knowledge of Bradley or Tucker, threatened by the SEC.
(e) Bradley shall have obtained the approval for the listing of the
shares of Bradley Common Stock issuable in the Merger on the NYSE, subject to
official notice of issuance.
(f) The consents set forth in Schedule 8.1(f) hereof shall have been
obtained. All other consents, authorizations, orders and approvals of (or
filings or registrations with) any governmental commission, board, other
regulatory body or third parties required to be made or obtained by Bradley,
Tucker and their respective subsidiaries and affiliated entities in connection
with the execution, delivery and performance of this Agreement and the
Ancillary Agreements shall have been obtained or made, except where the failure
to have obtained or made any such consent, authorization, order, approval,
filing or registration, would not have (i) a Tucker Material Adverse Effect or
(ii) a Bradley Material Adverse Effect, as the case may be.
8.2 CONDITIONS TO OBLIGATIONS OF TUCKER TO EFFECT THE MERGER. The
obligation of Tucker to effect the Merger shall be subject to the fulfillment
at or prior to the Closing Date of the following conditions, unless waived by
Tucker:
(a) Each of the representations and warranties of Bradley contained
in this Agreement shall be true and correct in all material respects as of the
date of this Agreement and as of the Effective Time as though made on and as of
the Effective Time and Tucker shall have received a certificate, dated the
Closing Date, signed on behalf of Bradley by the President of Bradley to the
foregoing effect.
(b) Bradley shall have performed or complied in all material
respects with all agreements and covenants required by this Agreement to be
performed or complied with by it on or prior to the Effective Time, and Tucker
shall have received a certificate, dated the Closing Date, signed on behalf of
Bradley by the President of Bradley to the foregoing effect.
(c) Tucker shall have received the opinion of Mayer, Brown & Platt,
or another nationally recognized law firm selected by Tucker, dated not less
than five business days prior to the date the Form S-4 is declared effective by
the SEC, reasonably acceptable to Tucker, and subject to customary conditions
and qualifications (including reliance, in part, on representations of Bradley
and Tucker and certain stockholders of Tucker), to the effect that the Merger
will be treated for federal income tax purposes as a tax-free reorganization
qualifying under the provisions of Sections 368(a)(1)(A) of the Code, which
opinion shall not have been withdrawn or modified in any material respect.
(d) At closing, Tucker shall have received the opinion of Goodwin,
Procter & Hoar, or another nationally recognized law firm selected by Bradley,
in form and substance reasonably satisfactory to Tucker, to the effect that,
for all applicable tax years for which Bradley's federal income tax returns are
subject to audit and Bradley is subject to assessment
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for taxes reportable therein and through the date of the Closing, Bradley has
qualified to be taxed as a REIT under Sections 856 through 860 of the Code.
(e) From the date of this Agreement through the Effective Time,
there shall not have occurred any change concerning Bradley or any of the
Bradley Subsidiaries that has had or could be reasonably likely to have a
Bradley Material Adverse Effect and Tucker shall have received a certificate,
dated the Closing Date, signed on behalf of Bradley by the President of Bradley
to the foregoing effect.
8.3 CONDITIONS TO OBLIGATION OF BRADLEY TO EFFECT THE MERGER. The
obligations of Bradley to effect the Merger shall be subject to the fulfillment
at or prior to the Closing Date of the following conditions, unless waived by
Bradley:
(a) Each of the representations and warranties of Tucker contained
in this Agreement shall be true and correct in all material respects as of the
date of this Agreement and as of the Effective Time as though made on and as of
the Effective Time, and Bradley shall have received a certificate, dated the
Closing Date, signed on behalf of Tucker by the President of Tucker to the
foregoing effect.
(b) Tucker shall have performed or complied in all material respects
with all agreements and covenants required by this Agreement to be performed or
complied with by it on or prior to the Effective Time, and Bradley shall have
received a certificate, dated the Closing Date, signed on behalf of Tucker by
the President of Tucker to the foregoing effect.
(c) Bradley shall have received the opinion of Goodwin, Procter &
Hoar, or another nationally recognized law firm selected by Bradley, dated not
less than five business days prior to the date the Form S-4 is declared
effective by the SEC, reasonably acceptable to Bradley, and subject to
customary conditions and qualifications (including reliance, in part, on
representations of Bradley and Tucker and certain stockholders of Tucker), to
the effect that the Merger will be treated for federal income tax purposes as a
tax-free reorganization qualifying under the provisions of Sections
368(a)(1)(A) of the Code, which opinion shall not have been withdrawn or
modified in any material respect.
(d) At closing, Bradley shall have received (i) the opinion of
Mayer, Brown & Platt, or another nationally recognized law firm selected by
Tucker, in form and substance reasonably satisfactory to Bradley, to the effect
that, for the taxable year ended December 31, 1995 and for the short taxable
year ending at the date of the Closing, Tucker has qualified to be taxed as a
REIT under Sections 856 through 860 of the Code and (ii) the opinion of Coopers
& Lybrand LLP, independent public accountants for Tucker, in form and substance
reasonably satisfactory to Bradley, to the effect that for the taxable years
ended December 31, 1993 and December 31, 1994, Tucker qualified to be taxed as
a REIT under Section 856 through 860 of the Code.
(e) From the date of this Agreement through the Effective Time,
there shall not have occurred any change concerning Tucker or any of the Tucker
Subsidiaries, that has had or could be reasonably likely to have a Tucker
Material Adverse Effect and Bradley shall
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have received a certificate, dated the Closing Date, signed on behalf of Tucker
by the President of Tucker to the foregoing effect.
(f) Tucker shall have obtained and delivered to Bradley estoppel
certificates dated no earlier than 45 days prior to the Effective Time with
respect to (x) each of the leases and REA Agreements set forth on Schedule
8.3(f) hereof and (y) leases representing a total of 50% of the total rented
space of each Tucker Property, other than rented space represented by the
leases listed on Schedule 8.3(f) hereof. Such estoppel certificates shall
either be (x) substantially in the form of Exhibit E hereto or (y) in the form
required by the applicable lease.
(g) Tucker and all of the limited partners of TOP shall have
executed the amended and restated TOP Partnership Agreement in the form
attached hereto as Exhibit B and the transfers of securities contemplated by
Section 1.5 of this Agreement and all of the actions described in Section 1.6
of this Agreement have been consummated or shall have occurred.
(h) Bradley shall have obtained a letter from Coopers & Lybrand LLP,
independent public accountants for Tucker, in form and substance reasonably
satisfactory to Bradley, certifying that (i) Tucker has satisfied the
requirements of Section 7.15(b) of this Agreement and (ii) for federal income
tax purposes, Tucker will not have any accumulated or current earnings or
profits immediately prior to the Effective Time.
(i) Bradley shall have received a private letter ruling from the
IRS, in form and substance reasonably satisfactory to Bradley, to the effect
that following the consummation of the Merger, each of TFC and Tucker
Properties Investment, Inc. will qualify as a qualified REIT subsidiary of
Bradley under Section 856(i) of the Code.
ARTICLE 9
9. Termination.
------------
9.1 TERMINATION. This Agreement may be terminated and abandoned at any
time prior to the Effective Time, whether before or after approval and adoption
of this Agreement by the stockholders of Tucker and Bradley:
(a) by mutual written consent of Bradley and Tucker; or
(b) by either Bradley or Tucker if any United States federal or
state court of competent jurisdiction or other governmental entity shall have
issued an order, decree or ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and non-appealable,
provided that the party seeking to terminate shall have used its best efforts
to appeal such order, decree, ruling or other action; or
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(c) by Bradley upon a breach of any representation, warranty,
covenant or agreement on the part of Tucker set forth in this Agreement, or if
any representation or warranty of Tucker shall have become untrue, in either
case such that the conditions set forth in Section 8.3(a) or Section 8.3(b), as
the case may be, would be incapable of being satisfied by June 30, 1996;
PROVIDED, HOWEVER, that, in any case, a willful breach shall be deemed to cause
such conditions to be incapable of being satisfied for purposes of this Section
9.1(c);
(d) by Tucker upon a breach of any representation, warranty,
covenant or agreement on the part of Bradley set forth in this Agreement, or if
any representation or warranty of Bradley shall have become untrue, in either
case such that the conditions set forth in Section 8.2(a) or Section 8.2(b), as
the case may be, would be incapable of being satisfied by June 30, 1996;
PROVIDED, HOWEVER, that, in any case, a willful breach shall be deemed to cause
such conditions to be incapable of being satisfied for purposes of this Section
9.1(d);
(e) by Bradley if (i) the Board of Directors of Tucker shall have
failed to make, or shall have withdrawn, amended, modified or changed its
approval or recommendation of this Agreement or any of the transactions
contemplated hereby; (ii) Tucker shall have failed as soon as practicable to
mail the Form S-4 to its stockholders or to include the recommendation of its
Board of Directors of this Agreement and the transactions contemplated hereby
in the Form S-4; (iii) the Board of Directors of Tucker shall have recommended
that stockholders of Tucker accept or approve an Acquisition Proposal by a
person other than Bradley (or Tucker or its Board shall have resolved to do
such); or (iv) Tucker or its Board of Directors shall have resolved to do any
of the foregoing;
(f) by Tucker, if the Board of Directors of Tucker recommends to
Tucker's stockholders approval or acceptance of a Acquisition Proposal by a
person other than Bradley, but only in the event that the Board of Directors of
Tucker, after consultation with and based upon the advice of Mayer, Brown &
Platt or another nationally recognized law firm, has determined in good faith
that such action is necessary for the Board of Directors of Tucker to comply
with its fiduciary duties to its stockholders under applicable law;
(g) by either Bradley or Tucker if this Agreement and the
transactions contemplated hereby shall have failed to receive the requisite
vote for approval and adoption by the stockholders of Bradley or Tucker upon
the holding of a duly convened stockholder meeting;
(h) by Tucker if (i) the Board of Directors of Bradley shall have
failed to make, or shall have withdrawn, amended, modified or changed its
approval or recommendation of this Agreement or the Merger or (ii) if the Board
of Directors of Bradley recommends to Bradley's stockholders approval or
acceptance of a proposal by a person other than Tucker to acquire 50% or more
of the assets or stock of Bradley, by way of merger, tender offer, exchange
offer or similar transaction; or
(i) by either Bradley or Tucker, if the Merger shall not have been
consummated on or before June 30, 1996 (other than due to the failure of the
party seeking to
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terminate this Agreement to perform its obligations under this Agreement
required to be performed by it at or prior to the Effective Time).
The right of any party hereto to terminate this Agreement pursuant to this
Section 9.1 shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any party hereto, any person
controlling any such party or any of their respective employees, officers,
directors, agents, representatives or advisors, whether prior to or after the
execution of this Agreement.
9.2 EFFECT OF TERMINATION.
(a) In the event of the termination and abandonment of this
Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become
void and have no effect, without any liability on the part of any party hereto
or its affiliates, directors, officers or stockholders and all rights and
obligations of any party hereto shall cease except for agreements contained in
Section 10.5; PROVIDED, HOWEVER, that nothing contained in this Section 9.2
shall relieve any party from liability for any breach of this Agreement or
shall relieve Tucker from any liability under this Article 9.
(b) If (x) Bradley terminates this Agreement pursuant to Section
9.1(e)(iii) or pursuant to 9.1(c) as a result of a willful breach by Tucker or
(y) Tucker terminates this Agreement pursuant to Section 9.1(f), then Tucker
shall pay to Bradley an amount (the "Termination Amount") in cash equal to the
sum of (i) $3,000,000, plus (ii) Bradley's out-of-pocket costs and expenses,
in connection with this Agreement and the transactions contemplated hereby,
including, without limitation, fees and disbursements of accountants, attorneys
and investment bankers, up to a maximum of $2,000,000 in accordance with the
provisions of Section 9.3.
(c) If Bradley terminates this Agreement pursuant to Section
9.1(e)(i), 9.1(e)(ii), 9.1(e)(iv) or 9.1(c) (except for a termination because
of a willful breach by Tucker in which case the provisions of Section 9.2(b)
will apply), Tucker shall pay all of Bradley's out-of-pocket costs and
expenses, in connection with this Agreement and the transactions contemplated
hereby, including, without limitation, fees and disbursements of accountants,
attorneys and investment bankers up to a maximum of $2,000,000 ("Expenses") in
accordance with the provisions of Section 9.3.
(d) If at any time prior to or within one year after termination of
this Agreement (unless such termination was pursuant to Section 9.1(a), (b),
(d), (g), (h) or (i)) Tucker enters into an agreement relating to an
Acquisition Proposal with a person other than Bradley or Tucker's Board of
Directors recommends or resolves to recommend to Tucker's stockholders approval
or acceptance of an Acquisition Proposal with a person other than Bradley,
then, upon the entry into such agreement or the making of such recommendation
or resolution, Tucker shall pay to Bradley the Termination Amount in accordance
with the provisions of Section 9.3 which amount shall be reduced by any monies
previously paid by Tucker to Bradley pursuant to Section 9.2(b) or Section
9.2(c).
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(e) At any time prior to or within one year after termination of
this Agreement, Tucker shall not enter into any agreement relating to an
Acquisition Proposal with a person other than Bradley unless such agreement
provides that such person shall, upon the execution of such agreement, pay any
Termination Amount due Bradley under this Section 9.2. All such amounts shall
be paid in accordance with the provisions of Section 9.3.
(f) The parties acknowledge and agree that the provisions for
payment of Expenses and/or the Termination Amount are included herein in order
to induce Bradley to enter into this Agreement and to reimburse Bradley for
incurring the costs and expenses related to entering into this Agreement and
consummating the transactions contemplated by this Agreement. The parties
hereto agree that Bradley's rights to payment of the Expenses and/or
Termination Amount shall be in addition to any other rights or remedies under
contract, at law or in equity to which Bradley may be entitled.
(g) Notwithstanding any provision to the contrary herein, the
aggregate amount of the Termination Amount or Expenses, as the case may be,
payable to Bradley pursuant to this Section 9.2 shall be subject to the
limitations set forth in Section 9.3.
9.3 PAYMENT OF TERMINATION AMOUNT OR EXPENSES.
(a) In the event that Tucker is obligated to pay Bradley the
Termination Amount and/or Expenses pursuant to Section 9.2 (the "Section 9.2
Amount"), Tucker (or any other person to the extent provided by Section 9.2(d))
shall pay to Bradley from the applicable Section 9.2 Amount deposited into
escrow in accordance with the next sentence, an amount equal to the lesser of
(m) the Section 9.2 Amount and (n) the sum of (1) the maximum amount that can
be paid to Bradley without causing Bradley to fail to meet the requirements of
Sections 856(c)(2) and (3) of the Code determined as if the payment of such
amount did not constitute income described in Sections 856(c)(2)(A)-(H) or
856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by Bradley s
certified public accountants, plus (2) in the event Bradley receives either (X)
a letter from Bradley's counsel indicating that Bradley has received a ruling
from the IRS described in Section 9.3(b)(ii) or (Y) an opinion from Bradley s
counsel as described in Section 9.3(b)(ii), an amount equal to the Section 9.2
Amount less the amount payable under clause (1) above. To secure Tucker s
obligation to pay these amounts, Tucker shall deposit into escrow an amount in
cash equal to the Section 9.2 Amount with an escrow agent selected by Bradley
and on such terms (subject to Section 9.3(b)) as shall be agreed upon by
Bradley and the escrow agent. The payment or deposit into escrow of the
Section 9.2 Amount pursuant to this Section 9.3(a) shall be made within three
days of the event which gives rise to the payment of the Section 9.2 Amount by
wire transfer or bank check.
(b) The escrow agreement shall provide that the Section 9.2 Amount
in escrow or any portion thereof shall not be released to Bradley unless the
escrow agent receives any one or combination of the following: (i) a letter
from Bradley's certified public accountants indicating the maximum amount that
can be paid by the escrow agent to Bradley without causing Bradley to fail to
meet the requirements of Sections 856(c)(2) and (3) of the Code determined as
if the payment of such amount did not constitute Qualifying Income or a
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subsequent letter from Bradley's accountants revising that amount, in which
case the escrow agent shall release such amount to Bradley, or (ii) a letter
from Bradley's counsel indicating that Bradley received a ruling from the IRS
holding that the receipt by Bradley of the Section 9.2 Amount would either
constitute Qualifying Income or would be excluded from gross income within the
meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, Bradley s
legal counsel has rendered a legal opinion to the effect that the receipt by
Bradley of the Section 9.2 Amount would either constitute Qualifying Income or
would be excluded from gross income within the meaning of Sections 856(c)(2)
and (3) of the Code), in which case the escrow agent shall release the
remainder of the Section 9.2 Amount to Bradley. Tucker agrees to amend this
Section 9.3 at the request of Bradley in order to (x) maximize the portion of
the Section 9.2 Amount that may be distributed to Bradley hereunder without
causing Bradley to fail to meet the requirements of Sections 856(c)(2) and (3)
of the Code, (y) improve Bradley's chances of securing a favorable ruling
described in this Section 9.3(b) or (z) assist Bradley in obtaining a favorable
legal opinion from its counsel as described in this Section 9.3(b); provided
that Bradley's legal counsel has rendered a legal opinion to Bradley to the
effect that such amendment would not cause Bradley to fail to meet the
requirements of Section 856(c)(2) or (3) of the Code. The escrow agreement
shall also provide that any portion of the Section 9.2 Amount held in escrow
for five years shall be released by the escrow agent to Tucker. Tucker shall
not be a party to such escrow agreement and shall not bear any cost of or have
liability resulting from the escrow agreement.
(c) Notwithstanding anything to the contrary set forth in this
Agreement, in the event Bradley is required to file suit to seek all or a
portion of Termination Amount and/or the Expenses, it shall be entitled to all
expenses, including attorneys fees and expenses, which it has incurred in
enforcing its rights hereunder; provided that payment of such expenses shall be
subject to the limitations of Section 9.3(a) (determined as if such expenses
were included in the Section 9.2 Amount).
9.4 EXTENSION; WAIVER. At any time prior to the Effective Time, any
party hereto, by action taken by its Board of Directors, may, to the extent
legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (c) waive compliance
with any of the agreements or conditions for the benefit of such party
contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE 10
10. General Provisions.
-------------------
10.1 NONSURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall not survive the Merger,
PROVIDED, HOWEVER, that the
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agreements contained in Article 4, the last sentence of Section 7.4 and
Sections 7.10, 7.12, 7.13 and 7.14 and this Article 10 shall survive the
Merger.
10.2 NOTICES. Any notice required to be given hereunder shall be in
writing and shall be sent by facsimile transmission (confirmed by any of the
methods that follow), courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid) and addressed as follows:
If to Bradley: E. Lawrence Miller, President
Bradley Real Estate, Inc.
250 Boylston Street
Boston, MA 02116
Fax No. (617) 266-9453
With copies to: William B. King, P.C.
Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Fax No. (617) 523-1231
If to Tucker: Kenneth L. Tucker, President
Tucker Properties Corporation
40 Skokie Boulevard
Northbrook, IL 60062
Fax No. (708) 272-9931
With copies to: Edward J. Schneidman, Esq.
Mayer, Brown & Platt
190 S. LaSalle Street
Chicago, IL 60603-3441
Fax No. (312) 701-7711
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
delivered.
10.3 ASSIGNMENT; BINDING EFFECT; BENEFIT. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Notwithstanding anything
contained in this Agreement to the contrary, except for the provisions of
Article 4 and Sections 7.10, 7.12, 7.13 and 7.14(b), nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the
parties hereto or their respective heirs, successors, executors, administrators
and assigns any rights, remedies, obligations or liabilities under or by reason
of this Agreement.
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10.4 ENTIRE AGREEMENT. This Agreement, the Exhibits, the Tucker
Disclosure Letter and the Bradley Disclosure Letter and any documents delivered
by the parties in connection herewith constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings among the partes with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
10.5 CONFIDENTIALITY.
(a) As used herein, Confidential Material means, with respect to
either party hereto (the "Providing Party"), all information, whether oral,
written or otherwise, furnished to the other party hereto (the "Receiving
Party") or such Receiving Party's directors, officers, partners, Affiliates (as
defined in Rule 12b-2 under the Exchange Act), employees, agents or
representatives (collectively, "Representatives"), by the Providing Party and
all reports, analyses, compilations, studies and other material prepared by the
Receiving Party or its Representatives (in whatever form maintained, whether
documentary, computer storage or otherwise) containing, reflecting or based
upon, in whole or in part, any such information. The term "Confidential
Material" does not include information which (i) is or becomes generally
available, to the public other than as a result of a disclosure by the
Receiving Party, its Representatives or anyone to whom the Receiving Party or
any of its Representatives transmit any Confidential Material in violation of
this Agreement, (ii) is or becomes known or available to the Receiving Party on
a non-confidential basis from a source (other than the Providing Party or one
of its Representatives) who is not, to the knowledge of the Receiving Party
after reasonable inquiry, prohibited from transmitting the information to the
Receiving Party or its Representatives by a contractual, legal, fiduciary or
other obligation or (iii) is contained in the Form S-4.
(b) Subject to paragraph (c) below or except as required by law, the
Confidential Material will be kept confidential and will not, without the prior
written consent of the Providing Party, be disclosed by the Receiving Party or
its Representatives, in whole or in part, and will not be used by the Receiving
Party or its Representatives, directly or indirectly, for any purpose other
than in connection with this Agreement, the Merger or the evaluating,
negotiating or advising with respect to a transaction contemplated herein.
Moreover, each Receiving Party agrees to transmit Confidential Material to its
Representatives only if and to the extent that such Representatives need to
know the Confidential Material for purposes of such transaction and are
informed by such Receiving Party of the confidential nature of the Confidential
Material and of the terms of this Section. In any event, each Receiving Party
will be responsible for any actions by its Representatives which are not in
accordance with the provisions hereof.
(c) In the event that either Receiving Party, its Representatives or
anyone to whom such Receiving Party or its Representatives supply the
Confidential Material, are requested (by oral questions, interrogatories,
requests for information or documents, subpoena, civil investigative demand,
any informal or formal investigation by any government or governmental agency
or authority or otherwise in connection with legal process) to disclose any
Confidential Material, such Receiving Party agrees (i) to immediately notify
the Providing
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Party of the existence, terms and circumstances surrounding such a request,
(ii) to consult with the Providing Party on the advisability of taking legal
available steps to resist or narrow such request and (iii) if disclosure of
such information is required, to furnish only that portion of the Confidential
Material which, in the opinion of such Receiving Party's counsel, such
Receiving Party is legally compelled to disclose and to cooperate with any
action by the Providing Party to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded the
Confidential Material (it being agreed that the Providing Party shall,
reimburse the Receiving Party for all reasonable out-of-pocket expenses
incurred by the Receiving Party in connection with such cooperation).
(d) In the event of the termination of this Agreement in accordance
with its terms, promptly upon request from either Providing Party, the
Receiving Party shall, except to the extent prevented by law, redeliver to the
Providing Party or destroy all tangible Confidential Material and will not
retain any copies, extracts or other reproductions thereof in whole or in part.
Any such destruction shall be certified in writing to the Providing Party by an
authorized officer of the Receiving Party supervising the same.
Notwithstanding the foregoing, each Receiving Party and one Representative
designated by each Receiving Party shall be permitted to retain one permanent
file copy of each document constituting Confidential Material.
(e) Tucker and Bradley agree that prior to and within one year after
the termination of this Agreement they shall not solicit for employment,
whether as an employee or independent contractor, any person who is (or has
been within a period of one year) employed by the other, without the written
consent of the other.
10.6 AMENDMENT. This Agreement may be amended by the parties hereto, by
action taken by their respective Board of Directors, at any time before or
after approval of matters presented in connection with the Merger by the
stockholders of Tucker and Bradley, but after any such stockholder approval, no
amendment shall be made which by law requires the further approval of
stockholders without obtaining such further approval. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto.
10.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland without regard to its rules
of conflict of laws. Each of Tucker and Bradley hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of Maryland and of the United States of America located in the
State of Maryland (the "Maryland Courts") for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and agrees
not to commence any litigation relating thereto except in such courts), waives
any objection to the laying of venue of any such litigation in the Maryland
Courts and agrees not to plead or claim in any Maryland Court that such
litigation brought therein has been brought in any inconvenient forum.
10.8 COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which so executed and delivered shall
be an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may
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consist of a number of copies hereof each signed by less than all, but together
signed by all of the parties hereto.
10.9 HEADINGS. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
10.10 INTERPRETATION. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and
vice versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
10.11 WAIVERS. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties,
covenants or agreements contained in this Agreement. The waiver by any party
hereto of a breach of any provision hereunder shall not operate or be construed
as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
10.12 INCORPORATION. The Tucker Disclosure Letter and the Bradley
Disclosure Letter and all Exhibits and Schedules attached hereto and thereto
and referred to herein and therein are hereby incorporated herein and made a
part hereof for all purposes as if fully set forth herein.
10.13 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
10.14 ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions thereof in any Maryland
Court, this being in addition to any other remedy to which they are entitled at
law or in equity.
10.15 CERTAIN DEFINITIONS.
(a) As used in this Agreement, the word Subsidiary or
Subsidiaries when used with respect to any party means any corporation,
partnership, joint venture, business trust or other entity, of which such party
directly or indirectly owns or controls at least a majority of the securities
or other interests having by their terms ordinary voting power
55
<PAGE> 61
to elect a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization.
(b) As used in this Agreement, the word person means an
individual, a corporation, a partnership, an association, a joint-stock
company, a trust, a limited liability company, any unincorporated organization
or any other entity.
(c) As used in this Agreement, the word affiliate shall have the
meaning set forth in Rule 12b-2 of the Exchange Act.
10.16 SCHEDULES. Any fact or item disclosed in one section of any
Disclosure Letter or schedule hereto ("Schedule") shall be deemed to be
disclosed with respect to any other relevant section of such Disclosure Letter
or Schedule, whether or not an explicit cross-reference appears.
56
<PAGE> 62
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
BRADLEY REAL ESTATE, INC.
ATTEST:
By: /s/ William B. King By: /s/ E. Lawrence Miller
----------------------------- -----------------------------
Name: William B. King Name: E. Lawrence Miller
Title: Secretary Title: President & CEO
TUCKER PROPERTIES CORPORATION
ATTEST:
By: /s/ Richard H. Tucker By: /s/ Kenneth L. Tucker
----------------------------- -----------------------------
Name: Richard H. Tucker Name: Kenneth L. Tucker
Title: Secretary Title: President
57
<PAGE> 1
EXHIBIT 10.1
BRADLEY OPERATING LIMITED PARTNERSHIP
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
<PAGE> 2
BRADLEY OPERATING LIMITED PARTNERSHIP
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
<TABLE>
TABLE OF CONTENTS
<CAPTION>
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<S> <C> <C>
1. Definitions and Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Exhibits, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.1 Formation of Partnership . . . . . . . . . . . . . . . . . . . . . . 11
2.2 Partnership Name . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.3 Location of the Principal Place of Business . . . . . . . . . . . . . 11
2.4 Registered Agent and Registered Office . . . . . . . . . . . . . . . 11
3. Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1 Issuance of Units . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2 Redemption Right . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.3 Additional Capital . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.4 No Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . 14
3.5 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.6 No Interest on or Return of Capital . . . . . . . . . . . . . . . . . 16
3.7 Negative Capital Accounts . . . . . . . . . . . . . . . . . . . . . . 16
3.8 Limit on Contributions and Obligations of Partner . . . . . . . . . . 16
4. [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . 16
5. Purpose and Powers of Partnership . . . . . . . . . . . . . . . . . . . . 16
6. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7. Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.1 Profits or Losses . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.2 Special Allocations . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.3 Other Allocation Rules . . . . . . . . . . . . . . . . . . . . . . . 19
7.4 Tax Allocations; Code Section 704(c)/Section 1245 and 1250 Recapture. 20
7.5 Nonrecourse Liabilities . . . . . . . . . . . . . . . . . . . . . . . 20
8. Cash Available For Distribution . . . . . . . . . . . . . . . . . . . . . 21
8.1 Operating Cash Flow . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.2 Capital Cash Flow . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
(i)
<PAGE> 3
<TABLE>
<CAPTION>
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<S> <C> <C>
8.3 Consolidated Distributed Cash . . . . . . . . . . . . . . . . . . . . 21
8.4 Distributions to Partners . . . . . . . . . . . . . . . . . . . . . . 21
8.5 Distributions to Limited Partners as a Class . . . . . . . . . . . . 22
8.6 REIT Distributions . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.7 Consent to Distributions . . . . . . . . . . . . . . . . . . . . . . 22
8.8 Liquidating Distributions . . . . . . . . . . . . . . . . . . . . . . 22
8.9 Special Distribution and Allocations for Certain Properties . . . . . 22
9. Management of Partnership . . . . . . . . . . . . . . . . . . . . . . . . 23
9.1 General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.2 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . 25
9.3 Limitations on Powers and Authorities of Partners . . . . . . . . . . 25
9.4 Title Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.5 Compensation of the General Partner . . . . . . . . . . . . . . . . . 26
9.6 Standard of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.7 Waiver and Indemnification . . . . . . . . . . . . . . . . . . . . . 27
9.8 Other Activities of Partners and Agreements with Related Parties . . 27
9.9 Other Matters Concerning the General Partner . . . . . . . . . . . . 28
10. Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11. Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.2 Books of Account . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.3 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.4 Audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.5 Method of Accounting . . . . . . . . . . . . . . . . . . . . . . . . 30
11.6 Tax Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.7 Tax Matters Partner . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.8 Administrative Adjustments . . . . . . . . . . . . . . . . . . . . . 30
12. Transfers of Partnership Interests . . . . . . . . . . . . . . . . . . . . 30
12.1 Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
12.2 Limited Partners . . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.3 Admission Adjustments . . . . . . . . . . . . . . . . . . . . . . . . 32
13. Rights and Obligations of the Limited Partners . . . . . . . . . . . . . . 32
13.1 No Participation in Management . . . . . . . . . . . . . . . . . . . 32
13.2 Death, Legal Incompetency, Etc. of a Limited Partner . . . . . . . . 32
13.3 No Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
13.4 Duties and Conflicts . . . . . . . . . . . . . . . . . . . . . . . . 33
14. Indemnification and Security Interest . . . . . . . . . . . . . . . . . . 33
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<CAPTION>
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<S> <C> <C>
14.1 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . 33
14.2 Indemnity Collateral . . . . . . . . . . . . . . . . . . . . . . . . 33
14.3 Commons of Chicago Ridge . . . . . . . . . . . . . . . . . . . . . . 33
14.4 TTC Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
15. Liquidation and Dissolution of Partnership . . . . . . . . . . . . . . . . 37
15.1 Termination Events . . . . . . . . . . . . . . . . . . . . . . . . . 37
15.2 Method of Liquidation . . . . . . . . . . . . . . . . . . . . . . . . 37
15.3 Distribution in Kind . . . . . . . . . . . . . . . . . . . . . . . . 38
15.4 Documentation of Liquidation . . . . . . . . . . . . . . . . . . . . 38
15.5 Liability of the Liquidating Trustee . . . . . . . . . . . . . . . . 38
16. Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
17. Amendment of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 39
17.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
17.2 Merger, Etc. of General Partner . . . . . . . . . . . . . . . . . . . 39
18. Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
18.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
18.2 Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
18.3 Binding Character . . . . . . . . . . . . . . . . . . . . . . . . . . 41
18.4 Exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
18.5 No Alteration of Agreement . . . . . . . . . . . . . . . . . . . . . 41
19. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
19.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
19.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 42
19.3 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . 42
19.4 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
19.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
19.6 Other Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . 42
19.7 General Partner with Interest as Limited Partner . . . . . . . . . . 42
19.8 Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
19.9 Prior Agreements Superseded . . . . . . . . . . . . . . . . . . . . . 42
19.10 Purchase for Investment . . . . . . . . . . . . . . . . . . . . . . . 43
19.11 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
19.12 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
19.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
19.14 Notice for Certain Transactions . . . . . . . . . . . . . . . . . . . 43
</TABLE>
(iii)
<PAGE> 5
EXHIBIT A: Prior Agreement
EXHIBIT B: Name of Partners and Number of Units held by Each Partner under
Prior Agreement
EXHIBIT C: Name of Partners and Number of Units held by Each Partner under
this Agreement
EXHIBIT D: Form of Notice of Redemption
EXHIBIT E: Capital Account of Each Partner
EXHIBIT F: Shares of Common Stock and Units held or beneficially owned by
the TTC Guarantors
EXHIBIT G: Registration Rights Agreement
(iv)
<PAGE> 6
BRADLEY OPERATING LIMITED PARTNERSHIP
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (the
"Agreement") has been executed and delivered as of ______________, 1996, by and
among Tucker Properties Corporation, a Maryland corporation ("Tucker"), and
those other parties whose names appear on the signature pages hereto.
RECITALS
WHEREAS, the Partnership was formed as a limited partnership under the
name "Tucker Operating Limited Partnership" in accordance with the Revised
Uniform Limited Partnership Act of the State of Delaware pursuant to an
Agreement of Limited Partnership dated as of October 4, 1993 (the "Prior
Agreement").
WHEREAS, the original general partner of the Partnership, Tucker, is being
merged with and into Bradley Real Estate, Inc. ("Bradley"), effective as of the
date hereof (the "Merger").
WHEREAS, in connection with the consummation of the Merger, each
outstanding share of common stock of Tucker will be converted into the right to
receive a percentage of a share of Common Stock of Bradley in accordance with
the provisions of Section 4.1 of the Agreement and Plan of Merger, dated as of
October 30, 1995, between Bradley and Tucker (the "Merger Agreement").
WHEREAS, the parties hereto wish to amend the Prior Agreement in order,
among other things, to account for the Merger, to make Bradley the General
Partner, to adjust the number of Units (as hereinafter defined) held by each
Partner (as hereinafter defined) in order to maintain the Conversion Factor (as
hereinafter defined) as 1.0, to change the name of the Partnership and to make
certain other changes.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1. Definitions and Exhibits.
-------------------------
1.1 DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth respectively after each:
"Accountants" shall mean the firm or firms of independent certified public
accountants selected by the General Partner on behalf of the Partnership to
audit the books and records of the Partnership and to prepare statements and
reports in connection therewith.
<PAGE> 7
"Act" shall mean the Revised Uniform Limited Partnership Act of the State
of Delaware, as amended from time to time, and any successor statute.
"Administrative Expenses" shall mean (i) all administrative and operating
costs and expenses incurred by the Partnership and (ii) those administrative
costs and expenses of the General Partner, including salaries paid to officers
of the General Partner, accounting and legal expenses, the costs and expenses
of preparing reports required to be filed by the General Partner and costs and
expenses incurred in complying with applicable laws, that are undertaken by the
General Partner on behalf of, or for the benefit of, the Partnership.
"Affiliate" shall mean, with respect to any Partner (or as to any other
Person the affiliates of whom are relevant for purposes of any of the
provisions of this Agreement), (i) any member of the Immediate Family of such
Partner or Person; (ii) any trustee or beneficiary of a Partner; (iii) any
legal representative or successor of any Person referred to in the preceding
clauses (i) and (ii); (iv) any trust for the benefit of any Person referred to
in the preceding clauses (i) through (iii); or (v) any Entity which, directly
or indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with, any Person referred to in the preceding
clauses (i) through (iv).
"Affected Gain" shall have the meaning provided in Section 7.4.E hereof.
"Agreement" shall mean this Amended and Restated Agreement of Limited
Partnership, as it may be amended, modified, supplemented or restated from time
to time, as the context requires.
"Audited Financial Statements" shall mean financial statements (balance
sheet, statement of income, statement of partners' equity and statement of cash
flows) prepared in accordance with generally accepted accounting principles and
accompanied by an independent auditor's report containing (i) an opinion
containing no material qualification and (ii) no explanatory paragraph
disclosing information relating to material uncertainties (except as to
litigation) or going concern issues.
"Bankruptcy" of a Partner shall mean (i) the filing by a Partner of a
voluntary petition seeking liquidation, reorganization, arrangement or
readjustment, in any form, of its debts under Title 11 of the United States
Code (or corresponding provisions of future laws) or any other federal or state
insolvency law, or a Partner's filing an answer consenting to or acquiescing in
any such petition, (ii) the making by a Partner of any assignment for the
benefit of its creditors or the admission by a Partner in writing of its
inability to pay its debts as they mature, or (iii) the expiration of ninety
(90) days after the filing of an involuntary petition under Title 11 of the
United States Code (or corresponding provisions of future laws), seeking an
application for the appointment of a receiver for the assets of a Partner, or
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 90-day period.
2
<PAGE> 8
"Bradley Group" shall mean Bradley, the Partnership, the Financing
Partnership, the Financing Corporation, the Management Partnership, the
Management Corporation and any other Entity in which one or more other members
of the Bradley Group has or will have a direct or indirect interest of 50% or
more (by vote or value).
"Capital Account" shall mean the capital account maintained by the
Partnership for each Partner as described in Section 3.5 hereof.
"Capital Cash Flow" shall have the meaning set forth in Section 8.2
hereof.
"Capital Contribution" shall mean, when used with respect to a Partner,
the amount of money or the fair market value of property contributed by a
Partner to the capital of the Partnership pursuant to the terms of this
Agreement, including, without limitation, the provisions of Section 3.1.
"Cash Amount" shall mean an amount of cash equal to the amount (or portion
thereof) of any Current Yield which has not been paid to the Redeeming Partner
pursuant to Section 8.4.A for any prior period, plus the product of (i) the
Current Per Share Market Price of a share of Common Stock on the Valuation
Date, (ii) the number of Units set forth in the Redeeming Partner's Notice of
Redemption, and (iii) the Conversion Factor.
"Certificate" shall mean the Certificate of Limited Partnership filed with
the Secretary of State of the State of Delaware, as such Certificate may be
amended from time to time.
"Charter" shall mean the Charter (as such term is defined in the Maryland
General Corporation Law) of the General Partner, as it may be amended from time
to time.
"Closing Price" on any date shall mean the last sale price of Common
Stock, regular way, or, in case no sale takes place on such day, the average of
the closing bid and asked prices, regular way, in each such case as reported in
the principal consolidated transaction reporting system with respect to the New
York Stock Exchange or, if the Common Stock is not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, the last quoted price, or if not
so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System or, if such system is no longer in
use, the other principal automated quotations system that may then be in use
or, if the Common Stock is not quoted by any such organization, the average of
the closing bid and asked prices furnished by one or more professional market
makers making a market in the Common Stock selected, from time to time, by the
Board of Directors of the General Partner.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time, and any successor statute.
3
<PAGE> 9
"Common Stock" shall mean the shares of the common stock, par value $0.01
per share, of Bradley.
"Commons of Chicago Ridge" shall mean the land and buildings known as the
"Commons of Chicago Ridge" described in Commonwealth Land Title Insurance
Company policy number 174-001172.
"Commons of Chicago Ridge Annex" shall mean the land and buildings known
as the "Commons of Chicago Ridge Annex" described in Chicago Title Insurance
Company policy number 1410007547079EP.
"Consolidated Distributed Cash" shall have the meaning set forth in Section
8.3 hereof.
"Contributing Partner" shall have the meaning set forth in Section 3.1.B
hereof.
"Contribution Agreement(s)" shall have the meaning ascribed to it in the
Prior Agreement.
"Control" shall mean the ability, whether by the direct or indirect
ownership of shares or other equity interests, or by contract or otherwise, to
elect a majority of the directors of a corporation, to select the managing
partner of a partnership, or otherwise to select, or have the power to remove
and then select, a majority of those persons exercising governing authority
over an Entity. In the case of a limited partnership, the sole general
partner, all of the general partners to the extent each has equal management
control or authority, or the managing general partner or managing general
partners thereof shall be deemed to have control of such partnership and, in
the case of a trust, any trustee thereof or any person having the right to
select any such trustee shall be deemed to have control of such trust.
"Conversion Factor" shall mean 1.0, provided that in the event the General
Partner (i) declares or pays a dividend on its outstanding shares of Common
Stock in shares of Common Stock or makes a distribution to all holders of its
outstanding Common Stock in shares of Common Stock; (ii) subdivides its
outstanding shares of Common Stock; or (iii) combines its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, the Conversion
Factor shall be adjusted by multiplying the Conversion Factor by a fraction,
the numerator of which will be the number of issued and outstanding shares of
Common Stock immediately after such dividend, distribution, subdivision or
combination, and the denominator of which will be the actual number of shares
of Common Stock issued and outstanding on the record date for such dividend,
distribution, subdivision or combination, unless the General Partner
concurrently declares, makes or pays an equivalent dividend, distribution,
subdivision or combination of Units such that a Partner would receive the same
Cash Amount or REIT Shares Amount if it exercised its redemption rights under
Section 3.2 after such event as it would have received if it had exercised its
redemption rights immediately prior to such event. Any adjustment to the
Conversion Factor shall become effective immediately after the effective date
of such event retroactive to the record date, if any, for such event.
4
<PAGE> 10
"Current Per Share Market Price" on any date shall mean the average of the
Closing Prices for the most recent ten (10) Trading Days ending on such date.
"Current Yield" shall mean, for the period in question, the Consolidated
Distributed Cash for such period multiplied by the Limited Partner Consolidated
Percentage as of the close of such period (it being acknowledged that Current
Yield shall be calculated only for periods as to which holders of Common Stock
have received a distribution with respect to their shares).
"Depreciation" shall mean, for any fiscal year or portion thereof, an
amount equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such period for federal income tax
purposes, except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such period,
Depreciation shall be an amount that bears the same relationship to such
beginning Gross Asset Value as the depreciation, amortization or cost recovery
deduction in such period for federal income tax purposes bears to the beginning
adjusted tax basis; provided, however, that if the adjusted basis for federal
income tax purposes of an asset at the beginning of such period is zero,
Depreciation shall be determined with reference to such beginning Gross Asset
Value using any reasonable method selected by the General Partner.
"Entity" shall mean any general partnership, limited partnership,
corporation, joint venture, trust, business trust, limited liability company,
cooperative or association.
"Environmental Claim" shall mean any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, lien, notice of
non-compliance or violation, investigation or proceeding relating in any way to
any Environmental Law or any permit issued under any such Environmental Law
including, without limitation, (i) by governmental or regulatory authorities
for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law, and (ii) by any third
party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or any
applicable Environmental Law or arising from alleged injury or threat of injury
to health, safety or the environment due the existence of Hazardous Materials
or under any applicable Environmental Law.
"Environmental Laws" shall mean all statutes specifically described in the
definition of Hazardous Materials below and all federal, state and local
environmental health and safety statutes, ordinances, codes, rules,
regulations, orders and decrees regulating, relating to or imposing liability
or standards concerning or in connection with Hazardous Materials or any
applicable common law right of action concerning or in connection with the
Hazardous Materials.
"Financing Corporation" shall mean Bradley Financing Corporation, a
Delaware corporation, which was formerly Tucker Financing Corporation.
"Financing Partnership" shall mean Bradley Financing Partnership, a
Delaware general partnership, which was formerly Tucker Financing Partnership.
5
<PAGE> 11
"General Partner" shall mean Bradley, its duly admitted successors and
assigns and any other person who is a general partner at the time referenced.
"Gross Asset Value" shall mean, with respect to any asset of the
Partnership or any other member of the Bradley Group, the asset's adjusted
basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed
to the Partnership or any other member of the Bradley Group shall be the gross
fair market value of such asset, as determined by the General Partner;
(ii) The Gross Asset Value of all Partnership and other
Bradley Group assets shall be adjusted to equal their respective gross fair
market values, as determined by the General Partner, as of the following times:
(a) the date of this Agreement; (b) the acquisition of an additional interest
in the Partnership by any new or existing Partner in exchange for more than a
DE MINIMIS Capital Contribution; (c) the distribution by the Partnership to a
Partner of more than a DE MINIMIS amount of Partnership property as
consideration for an interest in the Partnership; (d) the liquidation of the
Partnership within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); (e)
the acquisition of an additional equity interest in any member of the Bradley
Group in exchange for more than a DE MINIMUS contribution to such group member
(such as an issuance of additional shares by the General Partner); (f) the
distribution by any Bradley Group member to one or more of its members of more
than a DE MINIMUS amount of property as consideration for an equity interest in
such group member; and (g) the liquidation of any member of the Bradley Group;
provided, however, that (x) adjustments pursuant to clauses (b) - (g) above
shall be made only if the General Partner reasonably determines that such
adjustments are necessary or appropriate to maintain Capital Accounts and
provide for allocations of Profits and Losses that reflect the relative
economic interests of the Partners in the Partnership and (y) the hypothetical
liquidation required under Section 7.1 of this Agreement for purposes of
allocating Profits and Losses shall not be treated as a liquidation of the
Partnership or any other Bradley Group member for purposes of the foregoing
provisions of this clause (ii).
(iii) The Gross Asset Value of (a) any Partnership
asset distributed to any Partner or (b) any asset of another member of the
Bradley Group distributed to a shareholder, partner or other equity owner of
such Bradley Group member shall be adjusted to equal the gross fair market
value of such asset, taking Section 7701(g) of the Code into account, on the
date of distribution as determined by the General Partner; and
(iv) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) and paragraph
(vi) of the definition of Profits and Losses; provided, however, that Gross
Asset Values shall not be adjusted pursuant to this paragraph (iv) to the
extent the General Partner determines that an adjustment pursuant to paragraph
(ii) above is
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<PAGE> 12
necessary or appropriate in connection with a transaction that would otherwise
result in an adjustment pursuant to this paragraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to paragraphs (i), (ii) or (iv) above, such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with respect to
such asset. The General Partner may adjust the Capital Accounts to reflect any
adjustment to the Gross Asset Value of Partnership property if so required or
permitted under Section 1.704-1(b)(2)(iv) of the Regulations.
"Hazardous Materials" shall mean any substance, material, waste, gas or
particulate matter which is regulated by any local governmental authority, the
State of Illinois or the United States Government, including, but not limited
to, any material or substance which is (i) defined as a "hazardous waste",
"hazardous material", "hazardous substance", "extremely hazardous waste", or
"restricted hazardous waste" or words of similar import under any provision of
any Environmental Law; (ii) petroleum or petroleum products; (iii) asbestos;
(iv) poly chlorinated biphenyl; (v) radioactive material; (vi) radon gas; (vii)
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. [Section]1251 ET SEQ. (33 U.S.C. [Section]1317); (viii) defined
as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. [Section]6901 ET SEQ. (42 U.S.C. [Section]6903); or
(ix) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
[Section]9601 ET SEQ. (42 U.S.C. [Section]9601).
"Immediate Family" shall mean, with respect to any Person, such Person s
spouse, parents, parents-in-law, descendants, nephews, nieces, brothers,
sisters, brothers-in-law, sisters-in-law and children-in-law.
"Limited Partner" shall mean any Person (i) whose name is set forth as
a Limited Partner on EXHIBIT C attached hereto or who has become a Limited
Partner pursuant to the terms and conditions of this Agreement and (ii) who
holds a Partnership Interest. "Limited Partners" means all such Persons.
"Limited Partner Consolidated Percentage" shall mean the fraction,
expressed as a percentage, determined as follows:
X
---
X+Y
where X = the number of Units held by the Limited Partners
(excluding any Units held by the General Partner)
multiplied by the Conversion Factor; and
Y = the number of shares of Common Stock then outstanding.
"Management Corporation" shall mean Bradley Management Corporation, a
Delaware corporation, which was formerly Tucker Management Corporation.
7
<PAGE> 13
"Management Partnership" shall mean Bradley Management Limited
Partnership, a Delaware limited partnership, which was formerly Tucker
Management Limited Partnership.
"Nonrecourse Deductions" shall have the meaning set forth in Regulations
Section 1.704-2(b) and (c).
"Nonrecourse Liability" shall have the meaning set forth in Regulations
Section l.704-2(b)(3).
"Notice of Redemption" shall mean the Notice of Redemption substantially in
the form of EXHIBIT D to this Agreement.
"Operating Cash Flow" shall have the meaning set forth in Section 8.1
hereof.
"Partner Nonrecourse Debt" shall have the meaning set forth in Regulations
Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" shall have the meaning set forth in
Regulations Section 1.704-2(i)(3).
"Partner Nonrecourse Deductions" shall have the meaning set forth in
Regulations Section 1.704-2(i)(2).
"Partners" shall mean, collectively, the General Partner and the Limited
Partners, or any additional or successor partners of the Partnership.
Reference to a Partner shall be to any one of the Partners.
"Partnership" shall mean the limited partnership governed by this
Agreement, as amended and/or restated from time to time.
"Partnership Interest" shall mean the ownership interest of a Partner in
the Partnership at any particular time, including the right of such Partner to
any and all benefits to which such Partner may be entitled as provided in this
Agreement, and to the extent not inconsistent with this Agreement, under the
Act, together with the obligations of such Partner to comply with all of the
terms and provisions of this Agreement and of the Act.
"Partnership Minimum Gain" shall have the meaning set forth in Regulations
Sections 1.704-2(h)(2) and 1.704-2(d).
"Percentage Interest" of a Partner in the Partnership shall be equal to
the quotient (expressed as a percentage) arrived at by dividing the number of
Units held by the Partner by the total number of Units then outstanding.
"Person" shall mean any individual or Entity.
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<PAGE> 14
"Prior Agreement" shall mean the Agreement of Limited Partnership of
Tucker Operating Limited Partnership, dated as of October 4, 1993, as amended up
to the date hereof, in the form attached hereto as EXHIBIT A.
"Profits" and "Losses" shall mean, for each fiscal year or portion
thereof, an amount equal to the Partnership's items of taxable income or loss
for such year or period, determined in accordance with Section 703(a) of the
Code with the following adjustments:
(i) any income which is exempt from Federal income tax and
not otherwise taken into account in computing Profits or Losses shall be added
to taxable income or loss;
(ii) any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Section 705(a)(2)(B) expenditures under
Regulations Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account
in computing Profits or Losses will be subtracted from taxable income or loss;
(iii) in the event that the Gross Asset Value of any
Partnership asset is adjusted pursuant to the definition of Gross Asset Value
contained in this 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 Profits and Losses;
(iv) gain or loss resulting from any disposition of
Partnership assets with respect to which gain or loss is recognized for Federal
income tax purposes shall be computed by reference to the Gross Asset Value of
the property disposed of, notwithstanding that the adjusted tax basis of such
property differs from its Gross Asset Value;
(v) in lieu of the depreciation, amortization and other
cost recovery deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such fiscal year or
other period;
(vi) to the extent an adjustment to the adjusted tax basis
of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b)
is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) to be taken
into account in determining Capital Accounts as a result of a distribution
other than in complete liquidation of a Partner's Partnership Interest, the
amount of such adjustment shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases the basis of the asset) from the disposition of the asset and shall
be taken into account for purposes of computing Profits or Losses; and
(vii) any items specially allocated pursuant to Section
7.2 hereof shall not be considered in determining Profits or Losses.
"Prospectus" shall mean the final form of prospectus relating to the
initial public offering of common stock of Tucker as it was first filed
pursuant to Rule 424(b) of the rules and regulations of the SEC, including all
amendments and supplements thereto.
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<PAGE> 15
"Redeeming Partner" shall have the meaning set forth in Section 3.2
hereof.
"Redemption Right" shall have the meaning set forth in Section 3.2 hereof.
"Regulations" shall mean the Income Tax Regulations, including Temporary
Regulations, promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"Registration Statement" shall mean the Registration Statement on Form
S-11 (including the prospectus contained therein) relating to the initial
public offering of common stock of Tucker, as filed with the SEC, and any
amendments made thereto, pursuant to which Tucker offered and sold certain
shares of its common stock.
"REIT" shall mean a real estate investment trust as defined in Section 856
of the Code.
"REIT Requirements" shall have the meaning set forth in Section 5.2
hereof.
"REIT Shares Amount" shall mean a number of shares of Common Stock equal
to the product of (i) the number of Units set forth in a Redeeming Partner s
Notice of Redemption pursuant to Section 3.2 and (ii) the Conversion Factor.
"Requesting Party" shall have the meaning set forth in Section 18.2
hereof.
"SEC" shall mean the United States Securities and Exchange Commission.
"Specified Redemption Date" shall mean the tenth (10th) Trading Day after
receipt by the General Partner of a Notice of Redemption from a Limited
Partner.
"Trading Day" shall mean a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business or, if the Common Stock is not listed or admitted
to trading on any national securities exchange, shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of New
York are authorized and obligated by law or executive order to close.
"Transferee" shall have the meaning set forth in Section 12.2 hereof.
"TTC Guarantors" shall mean Kenneth L. Tucker, Richard H. Tucker and
Harold Eisenberg.
"Units" shall have the meaning set forth in Section 3.1 hereof.
"Valuation Date" shall mean the date of receipt by the General Partner of
a Notice of Redemption or, if such date is not a Trading Day, the first Trading
Day thereafter.
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<PAGE> 16
1.2 EXHIBITS, ETC. References to an "Exhibit" or to a "Schedule"
are, unless otherwise specified, to one of the Exhibits or Schedules attached
to this Agreement, and references to an "Article" or a "Section" are, unless
otherwise specified, to one of the Articles or Sections of this Agreement.
Each Exhibit and Schedule attached hereto and referred to herein is hereby
incorporated herein by this reference.
2. Organization.
-------------
2.1 FORMATION OF PARTNERSHIP. Upon the initial filing of the
Certificate with the Secretary of State of the State of Delaware on October 4,
1993, the Partnership was formed as a limited partnership pursuant to the
provisions of the Act, and all other pertinent laws of the State of Delaware.
The Partners agree that the rights and liabilities of the Partnership shall be
as provided in the Act except as otherwise herein expressly provided.
2.2 PARTNERSHIP NAME. The business of the Partnership shall be
conducted under the name of "Bradley Operating Limited Partnership"; provided,
however, that the General Partner may, from time to time, change the name of the
Partnership or may adopt such trade or fictitious names as it may determine.
2.3 LOCATION OF THE PRINCIPAL PLACE OF BUSINESS. The location of
the principal place of business of the Partnership shall be at 250 Boylston
Street, Boston, Massachusetts 02116, or such other location as shall be
selected from time to time by the General Partner in its sole discretion.
2.4 REGISTERED AGENT AND REGISTERED OFFICE. The Registered Agent
of the Partnership shall be The Corporation Trust Company or such other Person
as the General Partner may select in its sole discretion. The Registered
Office of the Partnership shall be Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware 19801 or such other location as the General
Partner may select in its sole and absolute discretion.
3. Capital.
--------
3.1 ISSUANCE OF UNITS.
A. The interest of a Partner in the Partnership is sometimes
referred to as being evidenced by one or more "Units." Under the Prior
Agreement, each Partner was issued, and continues to own until the date of this
Agreement, the number of Units set forth opposite its name on EXHIBIT B.
Effective upon the consummation of the Merger, each Partner agrees to exchange
the number of Units set forth opposite its name on EXHIBIT B for the number of
Units set forth opposite its name on EXHIBIT C. The aggregate total of all
Units outstanding as of the date of this Agreement, and the names of the
Partners holding such Units (including the number of Units owned by each such
Partner) are set forth on EXHIBIT C.
B. From time to time, the General Partner, subject to the
provisions of this Section 3.1.B and Section 3.1.E, may cause the Partnership
to issue additional Units to existing or newly-admitted Partners (including
itself) in exchange for the contribution by a
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<PAGE> 17
Partner (the "Contributing Partner") of additional Capital Contributions to the
Partnership. The number of Units issued to a Contributing Partner that is a
member of the Bradley Group under this Section 3.1.B shall be equal to the
quotient (rounded to the nearest whole number) arrived at by dividing (i) the
amount of money or the initial Gross Asset Value of the property contributed as
additional Capital Contributions (net of other liabilities to which such
property is subject or assumed by the Partnership in connection with such
contribution but increased to reflect any expenses attributable to such
contribution) by (ii) the product of (a) the Current Per Share Market Price of
the Common Stock and (b) the Conversion Factor. The number of Units issued to
a Contributing Partner that is not a member of the Bradley Group under this
Section 3.1.B shall be determined by the General Partner, in its sole
discretion.
C. Subject to the provisions of Section 3.1.B and Section
3.1.E, the General Partner is hereby authorized to cause the Partnership from
time to time to issue to the Partners (including the General Partner) or other
Persons additional Units or other Partnership Interests in one or more classes,
or one or more series of any such class with such designations, preferences and
relative, participating, optional or other special rights, powers and duties,
including rights, powers and duties senior to the Partnership Interests and
Units held by the Limited Partners, all as shall be determined by the General
Partner in its sole and absolute discretion, including, without limitation (i)
the right of such class or series of Partnership Interests to share in
Partnership distributions and (ii) the rights which each such class or series
of Partnership Interests shall have upon dissolution or liquidation of the
Partnership. Notwithstanding the foregoing, for a period of twenty-four (24)
months after the effective time of the Merger, the General Partner shall not
cause the Partnership to issue additional Units or other Partnership Interests
with rights, powers and duties senior to the Units and Partnership Interests
held by the Limited Partners.
D. No Limited Partner shall, by virtue of being the holder of
one or more Units, be deemed to be a shareholder of, or have any other interest
in, the General Partner.
E. The General Partner shall not permit the Partnership to
issue additional Units to existing or newly admitted Partners for a period of
twenty-four (24) months after the effective time of the Merger if the issuance
of such Units would cause a material adverse tax consequence to the Limited
Partners (determined in the manner described below); provided, however, that
notwithstanding the foregoing or anything in this Agreement to the contrary,
the General Partner shall have the right to require the Partnership to issue
additional new Units to existing or newly-admitted Partners in connection with
(i) the merger, consolidation or combination of the General Partner or one of
its corporate subsidiaries with or into another Person in which securities of
the General Partner are being issued, acquired, converted or exchanged or (ii)
the merger, consolidation or combination of the Partnership with or into
another Person in connection with such merger, consolidation or combination of
the General Partner or one of its corporate subsidiaries with or into another
Person in which securities of the General Partner are being issued, acquired,
converted or exchanged. For purposes of this Section 3.1.E, an issuance of
Units will be treated as having material adverse tax consequences to the
Limited Partners only if the Limited Partners submit to the Partnership within
twenty-one (21) days of receipt of notice from the General Partner of such
proposed
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<PAGE> 18
issuance of Units an opinion of Klayman and Korman, L.L.C. or such other
certified public accounting firm reasonably satisfactory to the General
Partner, which opinion is in form and substance reasonably satisfactory to the
Accountants, to the effect that such issuance (x) will result in a decrease in
the Limited Partners share of Partnership liabilities under Code Section 752
and the Regulations thereunder and (y) such decrease in the Limited Partners
share of liabilities will cause the Limited Partners to recognize taxable
income under Section 731 of the Code of $50,000 in the aggregate or greater.
Nothing in this Section 3.1.E shall preclude the issuance of Units to the
extent necessary to provide that the Limited Partners as a class are entitled
to at least 1% of the distributions to the Partners pursuant to Section 8.4 for
the taxable year and subsequent taxable years.
3.2 REDEMPTION RIGHT.
A. Subject to Sections 3.2.B and 3.2.C, on or after the date
of this Agreement, each Limited Partner, other than the General Partner, shall
have the right (the "Redemption Right") to require the Partnership to redeem on
a Specified Redemption Date all or a portion of the Units held by such Limited
Partner for an aggregate amount equal to the Cash Amount, which shall be paid
by the Partnership. The Redemption Right shall be exercised pursuant to a
Notice of Redemption delivered to the Partnership (with a copy to the General
Partner) by the Limited Partner who is exercising the redemption right (the
"Redeeming Partner"); provided, however, that the Partnership shall not be
obligated to satisfy such Redemption Right if the General Partner elects to
purchase the Units subject to the Notice of Redemption pursuant to Section
3.2.B. Effective as of the Specified Redemption Date, the Redeeming Partner
shall not receive any dividends or distributions with respect to any Units so
redeemed. The Transferee of any Limited Partner may exercise the rights of
such Limited Partner pursuant to this Section 3.2, and such Limited Partner
shall be deemed to have assigned such rights to such Transferee and shall be
bound by the exercise of such rights by such Transferee. In connection with
any exercise of such rights by such Transferee on behalf of such Limited
Partner, the Cash Amount shall be paid by the Partnership directly to such
Transferee and not to such Limited Partner.
B. Notwithstanding the provisions of Section 3.2.A, a Limited
Partner that exercises the Redemption Right shall be deemed to have offered to
sell the number of Units set forth in the Notice of Redemption to the General
Partner, and the General Partner may, in its sole and absolute discretion,
elect to purchase directly and acquire such Units by paying to the Redeeming
Partner either the Cash Amount or the REIT Shares Amount, as elected by the
General Partner (in its sole and absolute discretion), on the Specified
Redemption Date, whereupon on such date the General Partner shall acquire the
Units offered for redemption by the Redeeming Partner and shall be treated for
all purposes of this Agreement as the owner of such Units. If the General
Partner shall elect to exercise its right to purchase Units under this Section
3.2.B with respect to a Notice of Redemption, it shall so notify the Redeeming
Partner within five Trading Days after the receipt by the General Partner of
such Notice of Redemption. If the General Partner (in its sole and absolute
discretion) elects not to exercise its right to purchase Units from the
Redeeming Partner pursuant to this Section 3.2.B, the General Partner shall not
have any obligation to the Redeeming Partner or the Partnership with respect to
the Redeeming Partner's exercise of the Redemption Right, and
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<PAGE> 19
the Partnership shall be required to pay the Redeeming Partner the Cash Amount
in accordance with the provisions of Section 3.2.A. In the event the General
Partner shall exercise its right to purchase Units with respect to the exercise
of a Redemption Right as described in the first sentence of this Section 3.2.B,
the Partnership shall have no obligation to pay any amount to the Redeeming
Partner with respect to such Redeeming Partner's exercise of such Redemption
Right, and each of the Redeeming Partner, the Partnership and the General
Partner, as the case may be, shall treat the transaction between the General
Partner and the Redeeming Partner for federal income tax purposes as a sale of
the Redeeming Partner's Units to the General Partner. Each Redeeming Partner
agrees to execute such documents as the General Partner may reasonably require
in connection with the issuance of shares of Common Stock upon exercise of the
Redemption Right.
C. Notwithstanding the provisions of Section 3.2.A and
Section 3.2.B, (i) a Limited Partner shall not be entitled to exercise the
Redemption Right pursuant to Section 3.2.A if the delivery of shares of Common
Stock to such Partner on the Specified Redemption Date pursuant to Section
3.2.B would be prohibited under or violate any provision of the Charter of the
General Partner or would violate any federal or state securities laws and (ii) a
Limited Partner shall not have the right to exercise the Redemption Right
pursuant to Section 3.2.A if in the opinion of counsel for the General Partner
the General Partner would, as a result thereof, no longer qualify (or if there
is a material risk that the General Partner no longer would qualify) as a REIT.
D. In connection with the execution of this Agreement, Bradley
and the Limited Partners have entered into a Registration Rights Agreement in
the form of EXHIBIT G hereto which provides the Limited Partners with certain
rights to register under the Securities Act of 1933, as amended, the shares of
Common Stock which they may receive under Section 3.2.B.
3.3 ADDITIONAL CAPITAL. No Partner shall be assessed or required to
contribute additional funds or other property to the Partnership. Any
additional funds or other property required by the Partnership, as determined
by the General Partner in its sole discretion, may, at the option of the
General Partner and without any obligation to do so, be contributed by the
General Partner as additional Capital Contributions. If and as the General
Partner or any other Partner makes additional Capital Contributions to the
Partnership, each such Contributing Partner shall receive additional Units or
other Partnership Interests as provided for in Section 3.1. The General
Partner shall also have the right (but not the obligation) to raise any
additional funds required for the Partnership by lending funds to the
Partnership, or by causing the Partnership to borrow funds from third parties
or other members of the Bradley Group, on such terms and conditions as the
General Partner shall deem appropriate in its sole discretion. If the General
Partner elects to cause the Partnership to borrow funds, it may cause one or
more of the Partnership's assets to be encumbered to secure the loan. No
Limited Partner shall have the right to contribute additional Capital
Contributions to the Partnership without the prior written consent of the
General Partner.
3.4 NO THIRD PARTY BENEFICIARY. No creditor or other third party
having dealings with the Partnership shall have the right to enforce the right
or obligation of any
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<PAGE> 20
Partner to make Capital Contributions or loans or to pursue any other right or
remedy hereunder or at law or in equity, it being understood and agreed that
the provisions of this Agreement shall be solely for the benefit of, and may be
enforced solely by, the parties hereto and their respective successors and
assigns. None of the rights or obligations of the Partners herein set forth to
make Capital Contributions or loans to the Partnership shall be deemed an asset
of the Partnership for any purpose by any creditor or other third party, nor
may such rights or obligations be sold, transferred or assigned by the
Partnership or pledged or encumbered by the Partnership to secure any debt or
other obligation of the Partnership or of any of the Partners.
3.5 CAPITAL ACCOUNTS. A separate Capital Account shall be
maintained for each Partner. The initial balance of each Partner's Capital
Account as of the date hereof shall equal the amount specified on EXHIBIT E
hereto. Each Partner's Capital Account shall thereafter be adjusted as set
forth below in this Section 3.5.
A. To each Partner's Capital Account there shall be credited
such Partner's Capital Contributions, such Partner's distributive share of
Profits and any items in the nature of income or gain which are specifically
allocated pursuant to Section 7.2 hereof, and the amount of any Partnership
liabilities assumed by such Partner or which are secured by any Partnership
property distributed to such Partner.
B. To each Partner's Capital Account there shall be debited
the amount of cash and the Gross Asset Value of any Partnership property
distributed to such Partner pursuant to any provision of this Agreement, such
Partner's distributive share of Losses and any items in the nature of expenses
or losses which are specifically allocated pursuant to Section 7.2 hereof, and
the amount of any liabilities of such Partner assumed by the Partnership or
which are secured by any property contributed by such Partner to the
Partnership.
C. In the event all or a portion of a Partnership Interest is
transferred in accordance with the terms of this Agreement (including a
transfer of Units pursuant to Section 3.2), the transferee shall succeed to the
Capital Account of the transferor to the extent it relates to the transferred
Partnership Interest.
D. In determining the amount of any liability for purposes of
Sections 3.5.A and 3.5.B hereof, there shall be taken into account Code Section
752(c) and any other applicable provisions of the Code and Regulations.
E. This Section 3.5 and the other provisions of this Agreement
relating to the maintenance of Capital Accounts (and the determination of
credits and debits thereto) are intended to comply with Section 704(b) of the
Code and Regulations Section 1.704-1(b), and shall be interpreted and applied
in a manner consistent with such Regulations. In the event the General Partner
shall determine that it is prudent to modify the manner in which the Capital
Accounts, or any debits or credits thereto (including, without limitation, (i)
allocations pursuant to Article 7 hereof or (ii) debits or credits relating to
liabilities which are secured by contributed or distributed property or which
are assumed by the Partnership or
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<PAGE> 21
the Partners) are computed in order to comply with such Regulations or more
accurately reflect the Partners' interests in the Partnership, the General
Partner may make such modification. The General Partner also may (i) make any
adjustments that are necessary or appropriate to maintain equality between the
Capital Accounts of the Partners and the amount of Partnership capital
reflected on the Partnership's balance sheet, as computed for book purposes, in
accordance with Regulations Section 1.704-1(b)(2)(iv)(g), (ii) make any
appropriate modifications in the event unanticipated events (for example, the
acquisition by the Partnership of oil or gas properties) might otherwise cause
this Agreement not to comply with Regulations Section 1.704-1(b), and (iii)
adopt such conventions and make such elections for purposes of maintaining
Capital Accounts and the allocation of items for tax purposes as it determines
are necessary or appropriate.
3.6 NO INTEREST ON OR RETURN OF CAPITAL.
A. Except to the extent authorized by Partnership Interests
issued pursuant to Section 3.1.C, no Partner shall be entitled to any interest
on its Capital Account or on its contributions to the capital of the
Partnership.
B. Except as provided by law or to the extent authorized by
Partnership Interests issued pursuant to Section 3.1.C, no Partner shall have
the right to demand or to receive the return of all or any part of his capital
contributions to the Partnership and there shall be no priority of one Partner
over another as to the return of capital contributions or withdrawals or
distributions of profits and losses. Except to the extent authorized by
Partnership Interests issued pursuant to Section 3.1.C, no Partner shall have
the right to demand or receive property other than cash in return for the
contributions of such Partner to the Partnership.
3.7 NEGATIVE CAPITAL ACCOUNTS. Except as otherwise provided by law,
no Partner shall be required to pay to the Partnership any deficit or negative
balance which may exist in its Capital Account.
3.8 LIMIT ON CONTRIBUTIONS AND OBLIGATIONS OF PARTNER. Neither the
Limited Partners nor the General Partner shall be required to make any
additional advances or contributions to or on behalf of the Partnership or to
endorse any obligations of the Partnership.
4. [Intentionally Omitted].
5. Purpose and Powers of Partnership.
----------------------------------
5.1 The purposes of the Partnership shall be to acquire, hold,
purchase, own, operate, manage, develop, redevelop, construct, improve,
maintain, invest in, finance, refinance, sell, convey, exchange, transfer,
encumber, lease and otherwise deal with the properties of the Partnership and
other real and personal property; to exercise all of the powers of a general
partner in the Financing Partnership and to acquire, own, sell, convey,
exchange, dispose of and otherwise deal with partnership interests in the
Financing
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<PAGE> 22
Partnership; to exercise all of the powers of a limited partner or a general
partner in a partnership, including, without limitation, in the Management
Partnership and to acquire, own, sell, convey, exchange, dispose of and
otherwise deal with and dispose of partnership interests including, without
limitation, those of the Management Partnership; to undertake such other
activities as may be necessary, advisable, desirable or convenient to the
business of the Partnership, and to engage in such other ancillary activities
as shall be necessary or desirable to effectuate the foregoing purposes. The
Partnership shall have all powers necessary or desirable to accomplish the
purposes enumerated. In connection with the foregoing, but subject to all of
the terms, covenants, conditions and limitations contained in this Agreement
and any other agreement entered into by the Partnership, the Partnership shall
have full power and authority, directly or through its interests in the
Financing Partnership, the Financing Corporation, the Management Partnership,
the Management Corporation or any other partnership, subsidiary, limited
liability company, other entity or joint venture, to enter into, perform and
carry out contracts of any kind, to borrow money and to issue evidences of
indebtedness, whether or not secured by mortgage, trust deed, pledge or other
lien, and directly or indirectly to acquire and construct additional properties
as necessary or useful in connection with its business.
5.2 The Partners acknowledge and agree that the Partnership shall be
operated in a manner that will enable the General Partner to (i) satisfy the
requirements for qualifying and taxation as a REIT under the Code and the
Regulations (the "REIT Requirements") and (ii) avoid the imposition of any
federal income or excise tax liability. The Partnership shall avoid taking any
action, or permitting any Affiliate to take any action, which would result in
the General Partner ceasing to satisfy the REIT Requirements or would result in
the imposition of any federal income or excise tax liability on the General
Partner.
6. Term.
-----
6.1 The Partnership shall continue until the Partnership is
terminated upon the earliest to occur of the following events:
A. December 31, 2050;
B. The election to dissolve the Partnership made in writing by
the General Partner;
C. The Bankruptcy of the General Partner;
D. Dissolution required by operation of law; or
E. The sale or other disposition of all or substantially all
the assets of the Partnership unless the General Partner elects to continue the
Partnership business for the purpose of the receipt and the collection of
indebtedness or the collection of any other consideration to be received in
exchange for the assets of the Partnership (which activities shall be deemed to
be part of the winding up of the affairs of the Partnership).
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6.2 Notwithstanding any other provision in this Agreement, the
General Partner hereby covenants and agrees that, for a period of two (2) years
after the effective time of the Merger, it will not (i) elect to dissolve the
Partnership pursuant to Section 6.1.B of this Agreement or (ii) sell or
otherwise dispose of all or substantially all of the assets of the Partnership.
7. Allocations.
------------
7.1 PROFITS OR LOSSES. Profits and Losses for each taxable year
shall be allocated among the Partners and shall be credited or debited to the
respective Capital Accounts so that, to the maximum extent possible, the
balance of each Partner's Capital Account at the end of any taxable year
(increased by the sum of such Partner's share of Partnership Minimum Gain and
Partner Nonrecourse Debt Minimum Gain, as determined in accordance with
Regulations Section 1.704-2) would be positive in the amount of cash that such
Partner would receive if each member of the Bradley Group sold all of its
property for an amount of cash equal to the Gross Asset Value of such property
(reduced, but not below zero, by the amount of Nonrecourse Liabilities to which
such property is subject) and all of the cash of the Partnership and each
member of the Bradley Group remaining after payment of all liabilities (other
than Nonrecourse Liabilities) of the Partnership and each member of the Bradley
Group were distributed in liquidation of each such entity immediately following
the end of such taxable year. For purposes of calculating the distribution
that would be made to the Partners pursuant to the hypothetical liquidation
described in the preceding sentence, (i) Section 15.2.C shall be applied as if
such hypothetical liquidation occurred in connection with the liquidation of
the Bradley Group (so that the hypothetical liquidating distribution to the
Partners shall be calculated under Sections 8.4 and 8.5) and (ii) Section 8.4
shall be applied as if the Consolidated Distributed Cash for the taxable year
ending with such hypothetical liquidation equaled the amount of cash that would
be distributed to the holders of Common Stock and Units (other than Units held
by the General Partner) in such hypothetical liquidation (without regard to the
actual market price or fair market value of the Common Stock).
7.2 SPECIAL ALLOCATIONS. The following special allocations shall be
made in the following order:
A. MINIMUM GAIN CHARGEBACK. Except as otherwise provided in
Regulations Section 1.704-2(f), notwithstanding any other provision of this
Article 7, if there is a net decrease in Partnership Minimum Gain during any
fiscal year, each Partner shall be specially allocated items of Partnership
income and gain for such fiscal year (and, if necessary, subsequent fiscal
years) in an amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain, determined in accordance with Regulations Section
1.704-2(g). The items to be so allocated shall be determined in accordance
with Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2) (assuming for this
purpose that this Agreement complies with the requirements of Regulations
Section 1.704-1(e)). This Section 7.2.A is intended to comply with the minimum
gain chargeback requirement in Regulations Section 1.704-2(f) and shall be
interpreted consistently therewith.
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B. PARTNER MINIMUM GAIN CHARGEBACK. Except as otherwise
provided in Regulations Section 1.704-2(i)(4), notwithstanding any other
provision of this Article 7, if there is a net decrease in Partner Nonrecourse
Debt Minimum Gain attributable to a Partner Nonrecourse Debt during any
Partnership fiscal year, each Partner who has a share of the Partner
Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse Debt,
determined in accordance with Regulations Section 1.704-2(i)(5), shall be
specially allocated items of Partnership income and gain for such fiscal year
(and, if necessary, subsequent fiscal years) in an amount equal to such Partner
s share of the net decrease in Partner Nonrecourse Debt Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in accordance with
Regulations Section 1.704-2(i)(4) (assuming for this purpose that this
Agreement complies with the requirements of Regulations Section 1.704-1(e)).
The items to be so allocated shall be determined in accordance with Regulations
Sections 1.7042(i)(4) and 1.704-2(j)(2). This Section 7.2.B is intended to
comply with the minimum gain chargeback requirement in Regulations Section
1.704-2(i)(4) and shall be interpreted consistently therewith.
C. NONRECOURSE DEDUCTIONS. Nonrecourse Deductions for any
fiscal year shall be allocated among the Partners in accordance with their
respective Percentage Interests.
D. PARTNER NONRECOURSE DEDUCTIONS. Any Partner Nonrecourse
Deductions for any fiscal year shall be specially allocated to the Partner who
bears the economic risk of loss with respect to the Partner Nonrecourse Debt to
which such Partner Nonrecourse Deductions are attributable, in accordance with
Regulations Section 1.704-2(i)(1).
7.3 OTHER ALLOCATION RULES.
A. For purposes of determining the Profits, Losses or any
other items allocable to any period, Profits, Losses and any such other items
shall be determined in a daily, monthly or other basis, as determined by the
General Partner using any permissible method under Code Section 706 and the
Regulations thereunder (including proration or a closing of the books).
B. The Partners are aware of the income tax consequences of
the allocations made by this Article 7 and hereby agree to be bound by the
provisions of this Article 7 in reporting their shares of Partnership income
and loss for income tax purposes.
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7.4 TAX ALLOCATIONS; CODE SECTION 704(C)/SECTION 1245 AND 1250
RECAPTURE.
A. Except as otherwise provided in this Agreement, for
federal, state and local income tax purposes, all items of Partnership income,
gain, loss, deduction, credit and any other allocations not otherwise provided
for shall be allocated among Partners in the same manner as the corresponding
item of income, gain, loss or deduction was allocated pursuant to the preceding
sections.
B. Income, gain, loss, and deduction with respect to any
property contributed to the capital of the Partnership shall, solely for tax
purposes, be allocated among the Partners so as to take account of any
variation between the adjusted basis of such property to the Partnership for
federal income tax purposes and its initial Gross Asset Value in accordance
with any permissible manner under Code Section 704(c) and the Regulations
thereunder.
C. In the event the Gross Asset Value of any asset is adjusted
pursuant to the definition of "Gross Asset Value" contained in Article 1
hereof, subsequent allocations of income, gain, loss, and deduction with
respect to such asset shall take account of any variation between the adjusted
basis of such asset for federal income tax purposes and its Gross Asset Value
in the same manner or manners permitted under Code Section 704(c) and the
Regulations thereunder.
D. Any elections or other decisions relating to tax
allocations pursuant to this Section 7.4 shall be made by the General Partner
in any permissible manner under the Code or the Regulations that the General
Partner may elect in its sole discretion, and the General Partner may adopt
such conventions and methods for complying with the requirements of Code
Section 704(c) and the Regulations thereunder as the General Partner deems
appropriate. Allocations pursuant to this Section 7.4 are solely for purposes
of federal, state, and local taxes and shall not affect, or in any way be taken
into account in computing, any Partner's Capital Account or share of Profits or
Losses.
E. Except as otherwise required under Section 7.1, 7.2 or
7.4.C, if any portion of gain from the sale of property is treated as gain
which is ordinary income by virtue of the application of Code Section 1245 or
1250 ("Affected Gain"), then, to the extent possible, (i) such Affected Gain
shall be allocated among the Partners in the same proportion that the
depreciation and amortization deductions giving rise to the Affected Gain were
allocated and (ii) other Tax Items of gain of the same character that would
have been recognized, but for the application of Code Section 1245 and/or 1250,
shall be allocated away from those Partners who are allocated Affected Gain
pursuant to clause (i) so that, to the extent possible, the other Partners are
allocated the same amount, and type, of capital gain that would have been
allocated to them had Code Section 1245 and/or 1250 not applied.
7.5 NONRECOURSE LIABILITIES. The Partners agree that the
Partnership's "excess nonrecourse liabilities" within the meaning of
Regulations Section 1.752- 3(a)(3) shall be allocated among the Partners in
accordance with their respective interests in Partnership
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profits which, solely for purposes of Regulations Section 1.752-3(a)(3), shall
be deemed to be their Percentage Interests.
8. Cash Available For Distribution.
--------------------------------
8.1 OPERATING CASH FLOW. As used in this Agreement, "Operating Cash
Flow" shall mean and be defined as all cash receipts of the Partnership from
whatever source (but excluding Capital Cash Flow and excluding the proceeds of
any additional Capital Contributions to the Partnership pursuant to Section 3.1
or 3.3 hereof) during the period in question in excess of all items of
Partnership expense (other than non-cash expenses such as depreciation) and
other cash needs of the Partnership, including, without limitation,
Administrative Expenses, amounts paid by the Partnership as principal on debts
and advances, during such period, capital expenditures and any reserves (as
determined by the General Partner) established or increased during such period.
In the discretion of the General Partner, reserves may include cash held for
future acquisitions or any other purpose.
8.2 CAPITAL CASH FLOW. As used in this Agreement, "Capital Cash
Flow" shall mean and be defined as collectively (i) gross proceeds realized in
connection with the sale of any assets of the Partnership, (ii) gross financing
or refinancing proceeds, (iii) gross condemnation proceeds (excluding
condemnation proceeds applied to restoration of remaining property) and (iv)
gross insurance proceeds (excluding rental insurance proceeds or insurance
proceeds applied to restoration of property) less (a) closing costs, (b) the
cost to discharge any Partnership financing encumbering or otherwise associated
with the asset(s) in question, (c) the establishment of reserves (as determined
by the General Partner, and which may include cash held for future
acquisitions), and (d) other expenses of the Partnership (including
Administrative Expenses) to the extent not deducted in calculating Operating
Cash Flow and then due and owing.
8.3 CONSOLIDATED DISTRIBUTED CASH. As used in this Agreement,
"Consolidated Distributed Cash" with respect to any period shall mean the total
amount of cash that will be distributed with respect to shares of Common Stock
and Units (other than Units held by the General Partner) by members of the
Bradley Group with respect to such period. The amount of Consolidated
Distributed Cash with respect to any period shall be determined by the General
Partner in its sole discretion, and such determination shall be conclusive and
binding as to all Partners.
8.4 DISTRIBUTIONS TO PARTNERS. Except as provided in Section 15.2,
Operating Cash Flow and Capital Cash Flow with respect to any period shall be
distributed to the Partners at such times as the holders of Common Stock
receive a distribution with respect to their shares, but in no event less than
annually at such time as the General Partner shall determine, in the following
order of priority:
A. First, to the Limited Partners as a class, an amount equal
to the lesser of (i) (A) the Current Yield for such period plus (B) the excess,
if any, of the aggregate of the Current Yield for all prior periods over the
aggregate amount distributed pursuant to
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this Section 8.4.A for all prior periods, and (ii) 99% of the Operating Cash
Flow and Capital Cash Flow for such period.
B. Second, any remaining Operating Cash Flow and Capital Cash
Flow for such period shall be distributed to the General Partner.
8.5 DISTRIBUTIONS TO LIMITED PARTNERS AS A CLASS. The amount
distributed to Limited Partners as a class pursuant to Section 8.4 shall be
distributed among the Limited Partners in accordance with the respective number
of Units held by them as of a record date established by the General Partner,
which record date shall be the same as the record date for determination of
stockholders of the General Partner who are entitled to receive payment of
dividends on their shares of Common Stock.
8.6 REIT DISTRIBUTIONS. The General Partner shall use its best
efforts to cause Operating Cash Flow and Capital Cash Flow to be distributed so
as to allow the General Partner to satisfy the REIT Requirements and avoid
imposition of any federal income or excise tax.
8.7 CONSENT TO DISTRIBUTIONS. Each of the Partners hereby consents
to the distributions provided for in this Agreement.
8.8 LIQUIDATING DISTRIBUTIONS. Distributions upon liquidation of the
Partnership shall be made in accordance with Section 15.2.
8.9 SPECIAL DISTRIBUTION AND ALLOCATIONS FOR CERTAIN PROPERTIES.
A. Notwithstanding anything to the contrary in this Agreement,
for the Partnership's 1995 fiscal year and all subsequent fiscal years, (a)
100% of the Operating Cash Flow, Capital Cash Flow and proceeds of liquidation
of the Partnership with respect to the property contributed to the Partnership
by the Village of Chicago Ridge (the "Village Property") shall be distributed
to the General Partner as determined by the General Partner pursuant to
Sections 8.1, 8.2 and 15.2 of this Agreement, (b) 100% of all items of
Partnership income, gain, loss, deduction and credit with respect to the
Village Property shall be allocated to the General Partner, (c) 100% of the
liabilities and expenditures attributable to the Village Property shall be
charged to the General Partner, and (d) the General Partner shall indemnify and
hold harmless the share of the Limited Partners Operating Cash Flow, Capital
Cash Flow and proceeds of liquidation from and against any liabilities or
expenditures attributable to the Village Property.
B. Notwithstanding anything to the contrary in this Agreement,
for the Partnership's 1995 fiscal year and all subsequent fiscal years, (a)
100% of the Operating Cash Flow, Capital Cash Flow and proceeds of liquidation
of the Partnership with respect to the note issued to the Partnership by the
Village of Round Lake Beach (the "Village Note") shall be distributed to the
General Partner as determined by the General Partner pursuant to Sections 8.1,
8.2 and 15.2 of this Agreement, (b) 100% of all items of Partnership income,
gain, loss, deduction and credit with respect to the Village Note shall be
allocated to the
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General Partner, (c) 100% of the liabilities and expenditures attributable to
the Village Note shall be charged to the General Partner, and (d) the General
Partner shall indemnify and hold harmless the share of the Limited Partners
Operating Cash Flow, Capital Cash Flow and proceeds of liquidation from and
against any liabilities or expenditures attributable to the Village Note.
9. Management of Partnership.
--------------------------
9.1 GENERAL PARTNER. The General Partner shall be the sole manager
of the Partnership business, and shall have the right and power to make all
decisions and take any and every action with respect to the property, business
and affairs of the Partnership and shall have all the rights, power and
authority generally conferred by law, or necessary, advisable or consistent
with accomplishing the purposes of the Partnership. All such decisions or
actions made or taken by the General Partner hereunder shall be binding upon
all of the Partners and the Partnership. Except as otherwise expressly
provided herein, the powers of the General Partner to manage the Partnership
business shall include, without limitation, the power and authority to:
A. Manage, control, invest, reinvest, acquire by purchase,
lease or otherwise sell, contract to purchase or sell, grant, obtain, or
exercise options to purchase, options to sell or conversion rights, assign,
transfer, convey, deliver, endorse, exchange, pledge, mortgage, abandon,
improve, repair, maintain, insure, lease for any term and otherwise deal with
any and all property of whatsoever kind and nature, and wheresoever situated,
in furtherance of the purposes of the Partnership;
B. Acquire, directly or indirectly, interests in real estate
of any kind and of any type, and any and all kinds of interests therein, and to
determine the manner in which title thereto is to be held; to manage, insure
against loss, protect and subdivide any of the real estate, interests therein
or parts thereof; to improve, develop or redevelop any such real estate; to
participate in the ownership and development of any property; to dedicate for
public use, to vacate any subdivisions or parts thereof, to resubdivide, to
contract to sell, to grant options to purchase or lease, to sell on any terms;
to convey, to mortgage, pledge or otherwise encumber said property, or any part
thereof; to lease said property or any part thereof from time to time, upon any
terms and for any period of time, and to renew or extend leases, to amend,
change or modify the terms and provisions of any leases and to grant options to
lease and options to renew leases and options to purchase; to partition or to
exchange said real property, or any part thereof, for other real or personal
property; to grant easements or charges of any kind; to release, convey or
assign any right, title or interest in or about or easement appurtenant to said
property or any part thereof; to construct and reconstruct, remodel, alter,
repair add to or take from buildings on said premises; to insure any Person
having an interest in or responsibility for the care, management or repair of
such property; to direct the trustee of any land trust to mortgage, lease,
convey or contract to convey the real estate held in such land trust or to
execute and deliver deeds, mortgages, notes, and any and all documents
pertaining to the property subject to such land trust or in any matter
regarding such trust; to execute assignments of all or any part of the
beneficial interest in such land trust;
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C. Employ, engage or contract with or dismiss from employment
or engagement Persons to the extent deemed necessary by the General Partner for
the operation and management of the Partnership business, including but not
limited to, contractors, subcontractors, engineers, architects, surveyors,
mechanics, consultants, accountants, attorneys, insurance brokers, real estate
brokers and others;
D. Enter into contracts on behalf of the Partnership;
E. Borrow money, procure loans and advances from any Person
for Partnership purposes, and to apply for and secure from any Person, credit
or accommodations; to contract liabilities and obligations, direct or
contingent and of every kind and nature with or without security; and to repay,
discharge, settle, adjust, compromise, or liquidate any such loan, advance,
credit, obligation or liability;
F. Pledge, hypothecate, mortgage, assign, deposit, deliver,
enter into sale and leaseback arrangements or otherwise give as security or as
additional or substitute security, or for sale or other disposition any and all
Partnership property, tangible or intangible, including, but not limited to,
real estate and beneficial interests in land trusts, and to make substitutions
thereof, and to receive any proceeds thereof upon the release or surrender
thereof; to sign, execute and deliver any and all assignments, deeds and other
contracts and instruments in writing; to authorize, give, make, procure, accept
and receive moneys, payments, property, notices, demands, vouchers, receipts,
releases, compromises and adjustments; to waive notices, demands, protests and
authorize and execute waivers of every kind and nature; to enter into, make,
execute, deliver and receive written agreements, undertakings and instruments
of every kind and nature; to give oral instructions and make oral agreements;
and generally to do any and all other acts and things incidental to any of the
foregoing or with reference to any dealings or transactions which any attorney
may deem necessary, proper or advisable;
G. Acquire and enter into any contract of insurance which the
General Partner deems necessary or appropriate for the protection of the
Partnership, for the conservation of the Partnership's assets or for any
purpose convenient or beneficial to the Partnership;
H. Conduct any and all banking transactions on behalf of the
Partnership; to adjust and settle checking, savings, and other accounts with
such institutions as the General Partner shall deem appropriate; to draw, sign,
execute, accept, endorse, guarantee, deliver, receive and pay any checks,
drafts, bills of exchange, acceptances, notes, obligations, undertakings and
other instruments for or relating to the payment of money in, into, or from any
account in the Partnership's name; to execute, procure, consent to and
authorize extensions and renewals of the same; to make deposits and withdraw
the same and to negotiate or discount commercial paper, acceptances, negotiable
instruments, bills of exchange and dollar drafts; and to approve and adopt the
form of any banking resolutions of any financial institution as though set
forth in full herein;
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I. Demand, sue for, receive, and otherwise take steps to
collect or recover all debts, rents, proceeds, interests, dividends, goods,
chattels, income from property, damages and all other property, to which the
Partnership may be entitled or which are or may become due the Partnership from
any Person; to commence, prosecute or enforce, or to defend, answer or oppose,
contest and abandon all legal proceedings in which the Partnership is or may
hereafter be interested; and to settle, compromise or submit to arbitration any
accounts, debts, claims, dispute and matters which may arise between the
Partnership and any other Person and to grant an extension of time for the
payment or satisfaction thereof on any terms, with or without security;
J. Make arrangements for financing, including the taking of
all action deemed necessary or appropriate by the General Partner to cause any
approved loans to be closed;
K. Take all reasonable measures necessary to insure compliance
by the Partnership with applicable arrangements, and other contractual
obligations and arrangements entered into by the Partnership from time to time
in accordance with the provisions of this Agreement, including periodic reports
as required to lenders and using all due diligence to insure that the
Partnership is in compliance with its contractual obligations;
L. Maintain the Partnership's books and records;
M. Prepare and deliver, or cause to be prepared and delivered
by the Partnership's Accountants, all financial and other reports with respect
to the operations of the Partnership, and preparation and filing of all Federal
and state tax returns and reports; and
N. Organize one or more partnerships or corporations which are
controlled, directly or indirectly, by the Partnership and make any capital
contributions required pursuant to the partnership agreements of any such
partnerships.
9.2 [Intentionally Omitted].
9.3 LIMITATIONS ON POWERS AND AUTHORITIES OF PARTNERS.
Notwithstanding the powers of the General Partner set forth in Section 9.1
above, the General Partner shall have no right or power to do any of the
following:
A. Do any act in contravention of this Agreement, or any
amendment hereto;
B. Do any act which would make it impossible to carry on the
ordinary business of the Partnership, except to the extent that such act is
specifically permitted by the terms hereof;
C. Possess Partnership property or assign rights in specific
Partnership property for other than Partnership purposes; or
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D. Do any act in contravention of applicable law.
9.4 TITLE HOLDER. To the extent allowable under applicable law,
title to all or any part of the properties of the Partnership may be held in
the name of the Partnership, the General Partner or any other individual,
corporation, partnership, trust or otherwise, 100% of the beneficial interest
in which shall at all times be vested in the Partnership. Any such title
holder shall perform any and all of its respective functions to the extent and
upon such terms and conditions as may be determined from time to time by the
General Partner.
9.5 COMPENSATION OF THE GENERAL PARTNER. The General Partner shall
not be entitled to any compensation for services rendered to the Partnership
solely in its capacity as General Partner except with respect to reimbursement
for (i) those costs and expenses constituting Administrative Expenses and (ii)
such other amounts for which reimbursement is provided in this Agreement.
9.6 STANDARD OF CONDUCT.
A. Each Partner and each Person designated or delegated by a
Partner shall discharge its or his respective duties as a Partner or a designee
or delegate of a Partner in a manner it or he reasonably believes to be in the
best interests of the Bradley Group as a whole, including, without limitation,
the interests of the shareholders of the General Partner. For purposes hereof,
a person acting in a manner which either (i) is in the best interests of the
shareholders of the General Partner or (ii) furthers compliance with the REIT
Requirements, shall be deemed to be acting in the best interests of the Bradley
Group and shall be deemed to satisfy his standard of conduct hereunder.
B. Without limiting the scope of the protections afforded by
the foregoing Section 9.6.A, no officer, director, employee or shareholder of
the General Partner, and no Partner or Person designated or delegated by a
Partner, shall be liable for any actions or omissions taken by him or her,
excepting for any actions or omissions which constitute actual fraud, gross
negligence, or deliberately dishonest conduct. The foregoing limitations on
liability include, but are not limited to, liability arising from claims by
Limited Partners, individually and/or derivatively, for alleged breaches of
fiduciary duty against any officer, director, employee or shareholder of the
General Partner or any Partner or Person designated or delegated by a Partner
hereunder.
C. Each Partner and each Person or Persons designated or
delegated by a Partner shall, in the performance of its or his duties, be fully
protected in relying in good faith upon the records of the Partnership and upon
such information, opinions, reports or statements presented to such Partner or
such Person or Persons designated or delegated by a Partner, as applicable, by
any Person (including, without limitation, legal counsel and public
accountants) as to matters that such Partner, or such Person or Persons
designated or delegated by a Partner reasonably believes are within such Person
s professional or expert competence and who has been selected with reasonable
care by or on behalf of the Partnership, such Partner, or such Person or
Persons designated or delegated by a Partner.
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9.7 WAIVER AND INDEMNIFICATION.
A. Neither the General Partner, any Person acting on its
behalf, nor any Person designated or delegated by the General Partner pursuant
hereto, shall be liable, responsible or accountable in damages or otherwise to
the Partnership or to any Partner for any acts or omissions performed or
omitted to be performed by them within the scope of the authority conferred
upon the General Partner by this Agreement and the Act, provided that the
General Partner's or such other Person's action or omission to act was taken in
good faith and in the belief that such action or omission was in the best
interests of the Bradley Group as a whole, including, without limitation, the
interests of the shareholders of the General Partner, and, provided further,
that the General Partner's or such other Person's actions or omissions shall
not constitute actual fraud or gross negligence or deliberately dishonest
conduct. The Partnership shall, and hereby does, indemnify and hold harmless
the General Partner and its Affiliates and any individual acting on their
behalf from any loss, damage, claim or liability, including, but not limited
to, reasonable attorneys fees and expenses, incurred by them by reason of any
act performed by them in accordance with the standards set forth above or in
enforcing the provisions of this indemnity; provided, however, except as
provided in Article 14, no Partner shall have any personal liability with
respect to the foregoing indemnification, any such indemnification to be
satisfied solely out of the assets of the Partnership.
B. Any Person entitled to indemnification under this Agreement
shall be entitled to receive, upon application therefor, advances to cover the
costs of defending any proceeding against such Person; provided, however, that
such advances shall be repaid to the Partnership without interest, if such
Person is found by a court of competent jurisdiction upon entry of a final
judgment not to be entitled to such indemnification. All rights of the
indemnity hereunder shall survive the dissolution of the Partnership; provided,
however, that a claim for indemnification under this Agreement must be made by
or on behalf of the Person seeking indemnification prior to the time the
Partnership is liquidated hereunder. The indemnification rights contained in
this Agreement shall be cumulative of, and in addition to, any and all rights,
remedies and recourse to which the person seeking indemnification shall be
entitled, whether at law or at equity. Indemnification pursuant to this
Agreement shall be made solely and entirely from the assets of the Partnership
and no Partner shall be liable therefor.
9.8 OTHER ACTIVITIES OF PARTNERS AND AGREEMENTS WITH RELATED
PARTIES. The General Partner shall devote its full-time effort in furtherance
of the business of the Bradley Group, it being expressly understood that the
General Partner may conduct its activities directly, through members of the
Bradley Group as well as and through the Partnership, as the General Partner
determines is appropriate in its sole and absolute discretion. Without
limiting the foregoing, the General Partner, either directly or through other
members of the Bradley Group other than the Partnership, may acquire, own,
manage, develop, improve, lease, invest in or otherwise deal with commercial
real estate including, without limitation, any shopping center, office building
or retail project. Except as may otherwise be agreed to in writing, each
Limited Partner and its affiliates shall be free to engage in, to conduct or to
participate in any business or activity whatsoever, including, without
limitation, the acquisition, development,
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management and exploitation of real and personal property (other than property
of the Partnership), without any accountability, liability or obligation
whatsoever to the Partnership or to any other Partner, even if such business or
activity competes with or is enhanced by the business of the Partnership. The
General Partner, in the exercise of its power and authority under this
Agreement, may contract and otherwise deal with, or otherwise obligate the
Partnership to deal with, entities in which the General Partner or any one or
more of the officers, directors or stockholder of the General Partner may have
an ownership or other financial interest, whether direct or indirect.
9.9 OTHER MATTERS CONCERNING THE GENERAL PARTNER.
A. The General Partner shall be protected in relying, acting
or refraining from acting on any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
B. The General Partner may exercise any of the powers granted
or perform any of the duties imposed by this Agreement either directly or
through agents. The General Partner may consult with counsel, accountants,
appraisers, management consultants, investments bankers and other consultants
selected by it, each of whom may serve as consultants for the Partnership. An
opinion by any consultant on a matter which the General Partner believes to be
within its professional or expert competence shall be full and complete
protection as to any action taken or omitted by the General Partner based on
the opinion and taken or omitted in good faith. The General Partner shall not
be responsible for the misconduct, negligence, acts or omissions of any
consultant or contractor of the Partnership or of the General Partner, and
shall assume no obligations other than to use due care in the selection of all
consultants and contractors.
C. No mortgagee, grantee, creditor or any other person dealing
with the Partnership shall be required to investigate the authority of the
General Partner or secure the approval of or confirmation by any Limited
Partner of any act of the General Partner in connection with the conduct of the
Partnership business.
D. The General Partner may retain such persons or entities as
it shall determine (including the General Partner or any entity in which the
General Partner shall have an interest or with which it is affiliated) to
provide services to or on behalf of the Partnership. The General Partner shall
be entitled to reimbursement from the Partnership for its out-of-pocket
expenses (including, without limitation, amounts paid or payable to the General
Partner or any entity in which the General Partner shall have an interest or
with which it is affiliated) incurred in connection with Partnership business.
Such expenses shall be deemed to include those expenses required in connection
with the administration of the Partnership such as the maintenance of
Partnership books and records, management of the Partnership property and
assets and preparation of information respecting the Partnership needed by the
Partners in the preparation of their individual tax returns.
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9.10 PARTNER EXCULPATION. Except as provided in Article 14 hereof
and except for fraud, willful misconduct and gross negligence, no property or
assets of any Partner, other than its interest in the Partnership shall be
subject to levy, execution or other enforcement procedures for satisfaction of
judgment (or other judicial process) in connection with the debts or
liabilities of the Partnership or in connection with this Agreement. To the
fullest extent permitted by law, no officer, director or shareholder of the
Partnership shall be liable to the Partnership or any Partner for money damages
or recision except for (i) active and deliberate dishonesty established by a
final judgment or (ii) actual receipt of an improper benefit or profit in
money, property or services. This Agreement is executed by an officer of the
General Partner solely as an officer of the same and not in his own individual
capacity. Except as provided in Article 14 hereof, no advisor, director,
participant or agent of any Partner (or of any partner of a Partner) shall be
personally liable in any matter or to any extent under or in connection with
this Agreement, and the Partnership, each Partner and their respective
successors or assigns shall look solely to the interest of the other Partners
in the Partnership for the payment of any claim or for any performance
hereunder.
10. BANKING. The funds of the Partnership shall be kept in accounts
designated by the General Partner and all withdrawals therefrom shall be made
on such signature or signatures as shall be designated by the General Partner.
11. Accounting.
-----------
11.1 FISCAL YEAR. The fiscal and taxable year of the Partnership
shall end on the last day of December of each year, unless another fiscal year
end is selected by the General Partner.
11.2 BOOKS OF ACCOUNT. The Partnership books of account shall be
maintained at the principal office designated in Section 2.3 above or at such
other locations and by such person or persons as may be designated by the
General Partner. The Partnership shall pay the expense of maintaining its
books of account. Each Partner shall have, during reasonable business hours
and upon reasonable prior notice, access to the books of the Partnership and,
in addition, at its expense, shall have the right to copy such books. The
General Partner, at the expense of the Partnership, shall cause to be prepared
and distributed to the Partners annual financial data sufficient to reflect the
status and operations of the Partnership and its assets and to enable each
Partner to file its federal income tax return.
11.3 REPORTS. The General Partner shall cause to be submitted to the
Limited Partner Representatives promptly upon receipt of the same from the
Accountants and in no event later than April 1 of each year, copies of the
consolidated Audited Financial Statements for the Partnership and the Financing
Partnership, together with the reports thereon, and all supplementary schedules
and information, prepared by the Accountants. The Partnership shall also cause
to be prepared such reports and/or information as are necessary for the General
Partner to determine its qualification as a REIT and its compliance with REIT
Requirements.
11.4 AUDITS. Not less frequently than annually, the books and
records of the Partnership shall be audited by the Accountants. The General
Partner shall, unless determined
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otherwise by the General Partner, engage the Accountants to audit the books and
records of the Financing Partnership and any other consolidated subsidiary of
the Partnership.
11.5 METHOD OF ACCOUNTING. Except for purposes of Article 7 and the
maintenance of Capital Accounts, the Partnership books of account shall be
maintained and kept, and its income, gains, losses and deductions shall be
accounted for, in accordance with sound principles of accounting consistently
applied, or such other method of accounting as may be adopted hereafter by the
General Partner. All elections and options available to the Partnership for
federal or state income tax purposes shall be taken or rejected by the
Partnership in the sole discretion of the General Partner.
11.6 TAX ELECTION. All elections required or permitted to be made by
the Partnership under any applicable tax law shall be made by the General
Partner in its sole discretion.
11.7 TAX MATTERS PARTNER. The General Partner is hereby designated
the Tax Matters Partner (hereinafter referred to as the TMP") of the
Partnership and shall have all the rights and obligations of the TMP under the
Code.
11.8 ADMINISTRATIVE ADJUSTMENTS. If the TMP receives notice of a
Final Partnership Administrative Adjustment (the "FPAA") or if a request for an
administrative adjustment made by the TMP is not allowed by the United States
Internal Revenue Service (the "IRS") and the IRS does not notify the TMP of the
beginning of an administrative proceeding with respect to the Partnership s
taxable year to which such request relates (or if the IRS so notifies the TMP
but fails to mail a timely notice of an FPAA), the TMP may, but shall not be
obligated to, petition a court for readjustment of partnership items. In the
case of notice of an FPAA, if the TMP determines that the United States
District Court or Claims Court is the most appropriate forum for such petition,
the TMP shall notify each person who was a Partner at any time during the
Partnership's taxable year to which the IRS notice relates of the approximate
amount by which the IRS notice relates of the approximate amount by which its
tax liability would be increased (based on such assumptions as the TMP may in
good faith make) if the treatment of partnership items on his return was made
consistent with the treatment of partnership items on the Partnership's return,
as adjusted by the FPAA. Each such person shall deposit with the TMP, for
deposit with the IRS, the approximate amount of his increased tax
liability together with a written agreement to make additional deposits if
required to satisfy the jurisdictional requirements of the Court, within thirty
days after the TMP's notice to such person.
12. Transfers of Partnership Interests.
-----------------------------------
12.1 CONSENT. By execution of this amended and restated Agreement,
Tucker and the Limited Partners consent to (i) the Merger, (ii) Bradley
becoming the General Partner of the Partnership and (iii) the terms of this
amended and restated Agreement. The General Partner may, in its sole and
absolute discretion, transfer, assign, sell, encumber or otherwise dispose of
all or any part of its interest in the Partnership, without the consent of the
Limited Partners; provided, however, that, for a period of twenty-four (24)
months after the effective
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time of the Merger, the General Partner shall not, without the consent of a
majority of the Limited Partners, transfer, assign, sell, encumber or otherwise
dispose of all or any part of its interest in the Partnership to any of its
Affiliates other than an Affiliate whose securities will, in connection with
such transfer, become issuable upon redemption of the Units. Nothing in this
Section 12.1 shall preclude the transfer of Units to the extent necessary to
provide that the Partners (other than the General Partner) are entitled to at
least 1% in the aggregate of the distributions to the Partners pursuant to
Section 8.4 for the taxable year and subsequent taxable years.
12.2 LIMITED PARTNERS.
A. No Limited Partner or substituted Limited Partner shall,
without the prior written consent of the General Partner which consent may be
withheld in its sole and absolute discretion, transfer, assign, sell, encumber
or otherwise dispose of (a Transfer") all or any part of his interest in the
Partnership, except (i) as otherwise permitted by Section 13.2 of this
Agreement and for intervivos intra-family transfers for estate planning
purposes, and (ii) for pledges of Units by Limited Partners to secure the
repayment of a loan, provided that the Limited Partner shall have (A) first
obtained the written agreement of the pledgee to exercise its redemption rights
with respect to any pledged Units pursuant to Section 3.2.C immediately upon
taking any action with respect to such Units and (B) submitted a copy of such
agreement and pledge to the General Partner. Any Transferee (as defined below)
of Units transferred as permitted hereby shall be subject to the provisions of
Article 14 hereof to the extent applicable. A Limited Partner shall notify
the General Partner of any Transfers of beneficial interest or other interest
which occurs without a transfer of record ownership, as well as any pledge or
other collateral transfer. No part of the interest of a Limited Partner shall
be subject to the claims of any creditor, any spouse for alimony or support, or
to legal process, or be voluntarily or involuntarily alienated or encumbered,
except as may be specifically provided for in Section 12.2.A or Section 13.2 of
this Agreement. A Limited Partner shall not be permitted to retire or withdraw
from the Partnership except as expressly permitted by this Agreement.
B. An assignee, legatee, distributee or other transferee
(whether by conveyance, operation of law or otherwise) (a "Transferee") of all
or any portion of a Limited Partner's interest in the Partnership shall be
entitled to receive distributions hereunder attributable to such interest
acquired by reason of such Transfer, from and after the effective date of the
Transfer of such interest; provided, however, anything in this Agreement to the
contrary notwithstanding, except as provided in Section 12.2.A or 13.2, (i) no
Transfer by a Limited Partner shall be effective until such Transfer has been
consented to by the General Partner, (ii) no Transferee shall be considered a
substituted Limited Partner, (iii) the Partnership and the General Partner
shall be entitled to treat the transferor of such interest as the absolute
owner thereof in all respects, and shall incur no liability for distributions
which are made to such transferor until such time as the written instrument of
Transfer has been received by the General Partner and the "effective date" of
the Transfer has passed, and (iv) the General Partner shall have the right to
require any such transferor to have such transferor's Partnership Interest
redeemed in accordance with the provisions of Section 3.2 hereof. The
"effective date" of any Transfer shall be the last day of the month set forth
on the written
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instrument of Transfer or such other date consented to in writing by the
General Partner as the "effective date."
C. Notwithstanding anything to the contrary contained in this
Article 12, (a) no Transfer shall be effective to the extent that such
Transfer, by treating the Unit or Partnership Interest so transferred as if it
had been tendered for redemption and then acquired by the General Partner for
Common Stock in accordance with Section 3.2 hereof, would be prohibited by or
violate any provision of the Charter of the General Partner (including those
limiting the ownership of Common Stock in certain instances) and (b) no
Transfer of a Partnership Interest by any Partner shall be made (i) to any
person or entity that lacks the legal right, power or capacity to own a
Partnership Interest, (ii) in violation of applicable law, (iii) if such
Transfer would cause the General Partner to fail to qualify as a REIT, (iv) if
such Transfer would cause a termination of the Partnership for federal income
tax purposes (unless the General Partner consents to such transfer), (v) if
such Transfer would, in the opinion of counsel to the Partnership, cause the
Partnership or the Financing Partnership (or any other entity taxed as a
partnership for federal income tax purposes) (A) to cease to be classified and
taxed as a partnership for federal income tax purposes or (B) to be a publicly
traded partnership within the meaning of Section 7704 of the Code, (vi) if
such Transfer would cause the Partnership to become, with respect to any
employee benefit plan subject to Title 1 of ERISA, a "party-in-interest" (as
defined in Section 3(14) of ERISA) or a "disqualified person" (as defined in
Section 4975(c) of the Code), or (vii) if such Transfer would, in the opinion
of counsel to the Partnership, cause any portion of the assets of the
Partnership to constitute assets of any employee benefit plan pursuant to
Department of Labor Regulations Section 2510.3-101.
12.3 ADMISSION ADJUSTMENTS. The General Partner, when necessary,
shall cause this Agreement to be amended from time to time to reflect the
addition or withdrawal of Partners, including the corresponding adjustments to
Percentage Interests and Units required pursuant to Section 3.1.
13. Rights and Obligations of the Limited Partners.
-----------------------------------------------
13.1 NO PARTICIPATION IN MANAGEMENT. Except as expressly permitted
hereunder, the Limited Partners shall not take part in the management of the
Partnership's business, transact any business in the Partnership's name or have
the power to sign documents for or otherwise bind the Partnership.
13.2 DEATH, LEGAL INCOMPETENCY, ETC. OF A LIMITED PARTNER. The
death, legal incompetency, insolvency, dissolution or bankruptcy of a Limited
Partner shall not dissolve or terminate the Partnership. Upon ten Trading Days
notice to the General Partner of the death or incapacity of an individual
Limited Partner, such individual Limited Partner's interest in the Partnership
shall be transferred either by will, the laws of intestacy or otherwise to the
legal representative or successor of such individual Limited Partner who shall
be bound in all respects by the terms of this Agreement, subject to the General
Partner's right to redeem such interest in accordance with the provisions of
Section 3.2 hereof.
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13.3 NO WITHDRAWAL. No Limited Partner may withdraw from the
Partnership without the prior written consent of the General Partner.
13.4 DUTIES AND CONFLICTS. The General Partner recognizes that the
Limited Partners and their Affiliates have or may have other business
interests, activities and investments, some of which may be in conflict or
competition with the business of the Partnership, and that such persons are
entitled to carry on such other business interests, activities and investments.
The Limited Partners and their Affiliates may engage in or possess an interest
in any other business or venture of any kind, independently or with others, on
their own behalf or on behalf of other entities with which they are affiliated
or associated, and such persons may engage in any activities, whether or not
competitive with the Partnership, without any obligation to offer any interest
in such activities to the Partnership or to any Partner. Neither the
Partnership nor any Partner shall have any right, by virtue of this Agreement,
in or to such activities, or the income or profits derived therefrom, and the
pursuit of such activities, even if competitive with the business of the
Partnership, shall not be deemed wrongful or improper.
14. Indemnification and Security Interest.
--------------------------------------
14.1 [Intentionally Omitted].
14.2 INDEMNITY COLLATERAL. Indemnity Collateral shall mean with
respect to the TTC Guarantors: (a) the shares of Common Stock and Units held
or otherwise beneficially owned by the TTC Guarantors and their family members
which are set forth on EXHIBIT F hereto; (b) any shares of Common Stock
received by the TTC Guarantors as a result of the exchange of Units for shares
of Common Stock; (c) any Units transferred by the TTC Guarantors to a family
member for estate planning purposes in accordance with Section 12.2.A(i)
hereof; and (d) stock dividends, stock splits or other securities received with
respect to the shares of Common Stock or Units described in (a), (b) or (c),
but expressly excluding any cash dividends payable with respect to Units or
shares of Common Stock prior to any claim by an Indemnified Party hereunder.
14.3 COMMONS OF CHICAGO RIDGE.
A. With respect to the Commons of Chicago Ridge, the TTC
Guarantors agree to indemnify and hold harmless the General Partner and the
Partnership and each of their subsidiaries and all members of the Bradley Group
and their respective officers, directors, employees and representatives (each,
an "Indemnified Party" and collectively, the "Indemnified Parties") from and
against all demands, claims, actions or causes of action, assessments, losses,
fines, penalties, damages, liabilities, costs and expenses (including without
limitation, reasonable attorneys' fees and expenses of counsel chosen by the
Indemnified Parties and costs of litigation and reasonable fees and expenses of
accountants chosen by the Indemnified Parties) and charges sustained or
incurred by any of the Indemnified Parties as a result of or arising out of any
matter, condition or act at the Commons of Chicago Ridge involving any
Environmental Claim, which matter, condition or act existed on or arose prior
to the date of the Prior Agreement (whether or not disclosed in
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the environmental reports set forth as exhibits to the Contribution Agreements
or as described in the Prospectus or other reports filed by Tucker with the SEC
or otherwise known by any of the TTC Guarantors), except for the Remediation
Work (as defined in that certain Agreement Concerning Commons of Chicago Ridge,
dated as of October 30, 1995, by and among Bradley, the Partnership and the TTC
Guarantors); provided that, no claim for indemnity may be maintained pursuant
to this Section 14.3, unless such Indemnified Party shall have delivered a
written notice specifying the details of such claim to the TTC Guarantors on or
before October 4, 2003.
The indemnification obligation set forth in the preceding paragraph shall
cover all demands, claims, actions or causes of action, assessments, losses,
fines, penalties, damages, liabilities, costs and expenses (including without
limitation, reasonable attorneys fees and expenses of counsel chosen by the
Indemnified Parties and costs of litigation and reasonable fees and expenses of
accountants chosen by the Indemnified Parties) and charges sustained or
incurred by any of the Indemnified Parties as a result of or arising out of any
matter, condition or act at the Commons of Chicago Ridge Annex involving any
Environmental Claim only to the extent that such matter, condition or act is
the result of or arises out of a matter, condition or act at the Commons of
Chicago Ridge that existed on or arose prior to the date of the Prior
Agreement.
B. The Indemnified Parties shall have full recourse to the TTC
Guarantors and all of their assets for the indemnity obligation set forth in
this Section 14.3; provided that the Indemnified Parties shall first use their
best efforts to realize upon their security interests in the Indemnity
Collateral owned by the TTC Guarantors prior to asserting any recourse against
any other assets owned by the TTC Guarantors.
C. The Indemnified Parties agree to the following with respect
to any indemnification obligations of the TTC Guarantors hereunder:
(i) to furnish the TTC Guarantors with copies of all claims,
reports, orders, or other documentation which in any material
way relate to the subject matter of an indemnity obligation
asserted or which may be asserted against a TTC Guarantor as
soon as possible after the same are received;
(ii) to advise the TTC Guarantors of meetings with the Illinois EPA
with respect to any remediation plan or other material matter
bearing directly on such indemnity obligation of the TTC
Guarantors and invite the TTC Guarantors to attend such meeting;
(iii) not to agree to a remediation plan with the Illinois EPA
without first disclosing the plan to the TTC Guarantors and
reasonably considering in good faith any comments of the
TTC Guarantors thereon or any alternate remediation plan
proposed by the TTC Guarantors;
(iv) that any remediation plan proposed by the Indemnified Parties
shall propose a scope of work appropriate to a retail use of the
subject
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premises and not to a more rigorous standard of remediation,
except as may be required by applicable laws;
(v) that the TTC Guarantors and their consultants shall have
reasonable access to the premises which are the subject of the
indemnification obligation for testing, provided that the TTC
Guarantors shall be responsible for any claims, losses, costs or
expenses of Indemnified Parties arising therefrom;
(vi) not to settle any Environmental Claims which are subject to an
indemnification obligation hereunder without first disclosing the
terms of the settlement to the TTC Guarantors and reasonably
considering in good faith any comments of the TTC Guarantors
thereon;
(vii) to use on-site any materials excavated in connection with
construction on the Commons of Chicago Ridge, to the extent
deemed appropriate by the Indemnified Parties in light of
relevant legal requirements and construction standards;
provided that if the transport or disposal off-site of any
"special waste", including "hazardous waste" (both as
defined under Illinois statutes and regulations), or of any
other material subject to special or hazardous waste
requirements, has an incremental cost above the cost that
would be incurred if such materials were not so classified
or regulated, the TTC Guarantors shall bear such
incremental cost; and
(viii) to obligate contractors with respect to construction on the
Commons of Chicago Ridge to require workers to wear
protective clothing and apparatus to the extent required by
law if, in connection with the construction, such workers
will be exposed to special or hazardous wastes or other
materials subject to special or hazardous waste
requirements.
The agreements of the Indemnified Parties set forth in sub-sections (i)
through (viii) above shall not be deemed to require the consent or approval of
the TTC Guarantors as to any actions by the Indemnified Parties relating to the
subject matter of any indemnity obligation.
14.4 TTC GUARANTORS.
A. With respect to indemnity obligations of the TTC Guarantors
under Section 14.3 hereof, the TTC Guarantors have granted and hereby confer,
subject to the provisions of Section 14.4.D hereof, to the General Partner a
lien upon and a continuing security interest in, the Indemnity Collateral which
shall be security for the indemnity obligations of the TTC Guarantors, as
applicable, under this Article 14. Notwithstanding the foregoing, (i) Units
owned by the TTC Guarantors and their family members subject to the lien and
security interest granted under this Section 14.4.A may be transferred in
accordance with the provisions of Section 13.2 hereof free and clear of such
lien and security interest and
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(ii) shares of Common Stock of the General Partner owned by the TTC Guarantors
and their family members subject to the lien and security interest granted
under this Section 14.4.A may be transferred free and clear of such lien and
security interest; provided, however, that, in each instance, once a claim for
indemnity has been made in accordance with this Article 14, the TTC Guarantors
may not under any circumstance sell or otherwise transfer such Units or shares
of Common Stock or any other Indemnity Collateral. In addition, once an
indemnity claim has been made hereunder, all cash or other dividends made with
respect to Units or shares of Common Stock shall be considered Indemnity
Collateral and shall be placed by the General Partner in an escrow account
until such claim is resolved.
B. The TTC Guarantors have (i) delivered to the General
Partner certificates representing all of the shares of Common Stock owned by
them in such manner and accompanied by such instruments, including stock
transfer powers duly endorsed in blank, as shall be necessary to grant the
General Partner a fully perfected first priority security interest in such
shares and in any shares of Common Stock that may, after the date hereof, be
issued to the TTC Guarantors by stock dividend, stock split or similar
distribution and (ii) prepared and filed UCC financing statements and such
other documents and have taken other action necessary to grant the General
Partner a fully perfected first priority security interest in all of their
respective Units. In the event the TTC Guarantors are determined to have an
indemnification obligation pursuant to Section 14.4.D hereof, then each
Indemnified Party shall have all of the rights now or hereafter existing under
applicable law, and all rights as a secured creditor under the Uniform
Commercial Code ("UCC") in all relevant jurisdictions, with respect to the
Indemnity Collateral, and the TTC Guarantors agree to take all such actions as
may be reasonably requested of them by an Indemnified Party to ensure that the
Indemnified Parties can realize on such security interest.
C. In the event an Indemnified Party asserts, within the time
period set forth in Section 14.3.A hereof, that the TTC Guarantors have an
indemnification obligation to an Indemnified Party under this Article 14, and
TTC Guarantors are determined to have an indemnification obligation pursuant to
Section 14.4.D hereof, then (x) the General Partner shall, to the full extent
permitted by law, be deemed, without payment of further consideration or the
taking of further action by the TTC Guarantors or any of their subsidiaries, to
have acquired from any or all of the TTC Guarantors such portion of the
Indemnity Collateral as shall be equal in value (based, in the case of Units,
on the number of shares of Common Stock for which such Units could be
exchanged, computed as of the date the Indemnity Collateral is acquired by the
General Partner pursuant to this Section 14.3.C, and in the case of the Units
or the Common Stock, on the Current Per Share Market Price computed as of the
date of such acquisition) to the amount recoverable from or payable by or
indemnified by the TTC Guarantors under this Article 14, and (y) the
Indemnified Parties shall have all of the rights now or hereafter existing
under applicable law and all rights as a secured creditor under the UCC in all
relevant jurisdictions, with respect to the Indemnity Collateral and the TTC
Guarantors agree to take all such actions as may be reasonably requested of
them by the General Partner to ensure that the Indemnified Parties can realize
on such security interest.
D. Each of the Indemnified Parties shall have the right to
submit any dispute concerning whether a particular environmental claim is
within the parameters of
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<PAGE> 42
Section 14.3.A to arbitration in accordance with the provisions of Article 18
hereof. The lien and the security interest in Indemnity Collateral granted
hereunder shall not be released with respect to the TTC Guarantors shares of
Common Stock and Units until all of the indemnification obligations of the TTC
Guarantors hereunder have expired or been satisfied in accordance with their
terms; provided, however, that Units owned by the TTC Guarantors and their
family members may be transferred in accordance with this Agreement and shares
of Common Stock owned by the TTC Guarantors and their family members may be
transferred free and clear of such lien and security interest, in each such
case subject to the limitations of Section 14.4.A. Upon satisfaction of the
conditions to the release of the lien and security interest in the Indemnity
Collateral set forth above, the General Partner shall prepare and file all
documents and shall take all other action necessary on its part to release such
security interest in the applicable Indemnity Collateral.
15. Liquidation and Dissolution of Partnership.
-------------------------------------------
15.1 TERMINATION EVENTS. The Partnership shall be dissolved and its
affairs wound up in the manner hereinafter provided upon the occurrence of an
event described in Article 6 hereof.
15.2 METHOD OF LIQUIDATION. Upon the happening of any of the events
specified in Article 6 hereof, the General Partner (or if there be no General
Partner, a liquidating trustee selected by those Limited Partners holding in
the aggregate more than fifty percent (50%) of the Percentage Interests held by
all Limited Partners) shall immediately commence to wind up the Partnership s
affairs and shall liquidate the assets of the Partnership as promptly as
possible, unless the General Partner, or the liquidating trustee, shall
determine that an immediate sale of Partnership assets would cause undue loss
to the Partnership, in which event the liquidation may be deferred for a
reasonable time. The Partners shall continue to share Operating Cash Flow and
Capital Cash Flow during the period of liquidation in the same proportions as
before dissolution. The proceeds from liquidation of the Partnership,
including repayment of any debts of Partners to the Partnership, shall be
applied in the order of priority as follows:
A. Debts of the Partnership, including repayment of principal
and interest on loans and advances made by the General Partner; then
B. To the establishment of any reserves deemed necessary or
appropriate by the General Partner, or by the person(s) winding up the affairs
of the Partnership in the event there is no remaining General Partner of the
Partnership, for any contingent or unforeseen liabilities or obligations of the
Partnership. Such reserves established hereunder shall be held for the purpose
of paying any such contingent or unforeseen liabilities or obligations and, at
the expiration of such period as the General Partner, or such person(s) deems
advisable, the balance of such reserves shall be distributed in the manner
provided hereinafter in this Section 15.2 as though such reserves had been
distributed contemporaneously with the other funds distributed hereunder; then
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C. To the Partners in accordance with the provisions of
Sections 8.4 and 8.5; provided, however, that if the Partnership is liquidated
other than in connection with the liquidation of the Bradley Group,
distributions to the Partners under this Section 15.2.C shall be made in the
following order and priority:
1. First, to the Limited Partners as a class an amount
equal to the lesser of (a) the sum of (i) the amount (or portion thereof) of
any Current Yield which has not been paid to the Limited Partners pursuant to
Section 8.4.A for any prior period, plus (ii) the product of (x) the Conversion
Factor, (y) the number of Units held by the Limited Partners and (z) the
Current Per Share Market Price of the Common Stock as of the close of the
period ending with the liquidation and (b) 99% of the liquidation proceeds
remaining after the application of Section 15.2.A-B hereof; and
2. Second, the remainder of liquidation proceeds shall be
distributed to the General Partner.
15.3 DISTRIBUTION IN KIND. The General Partner may make
distributions pursuant to this Agreement in cash or in kind, as it determines
is appropriate in its sole discretion; provided that no in-kind distributions
shall be made to any Limited Partner other than the General Partner. In the
event the General Partner determines that it is necessary or desirable to make
a distribution of Partnership property in kind, the General Partner may
transfer and convey such property to the distributees as tenants in common,
subject to any liabilities attached thereto, so as to vest in them undivided
interests in the whole of such property in proportion to their respective
rights to share in the proceeds of the sale of such property (other than as a
creditor) in accordance with the provisions of Section 15.2 hereof.
15.4 DOCUMENTATION OF LIQUIDATION. Upon the completion of the
resolution and liquidation of the Partnership, the Partnership shall terminate
and the liquidating trustee shall have the authority to execute and record any
and all documents or instruments required to effect the dissolution,
liquidation and termination of the Partnership.
15.5 LIABILITY OF THE LIQUIDATING TRUSTEE. The liquidating trustee
shall be indemnified and held harmless by the Partnership from and against any
and all claims, demands, liabilities, costs, damages and causes of action of
any nature whatsoever arising out of or incidental to the liquidating trustee s
taking of any action authorized under or within the scope of this Agreement;
provided, however, that the liquidating trustee shall not be entitled to
indemnification, and shall not be held harmless, where the claim, demand,
liability, cost, damage or cause of action at issue arose out of:
A. A matter entirely unrelated to the liquidating trustee s
action or conduct pursuant to the provisions of this Agreement; or
B. The proven misconduct or negligence of the liquidating
trustee.
16. POWER OF ATTORNEY. Each Limited Partner hereby irrevocably
constitutes and appoints the Chief Executive Officer, the President and each
person holding the office of
38
<PAGE> 44
Executive Vice President of the General Partner, with full power of
substitution, its true and lawful attorney, for him and in his name, place and
stead and for his use and benefit, to sign, swear to, acknowledge, file and
record:
(i) this Agreement, and amendments to this Agreement;
(ii) any certificates, instruments and documents (including
assumed and fictitious name certificates) as may be required by, or may be
appropriate under, the laws of the State of Delaware or any other State or
jurisdiction in which the Partnership is doing or intends to do business, in
order to discharge the purposes of the Partnership or otherwise in connection
with the use of the name or names used by the Partnership;
(iii) any other instrument which may be required to be
filed or recorded by the Partnership on behalf of the Partners under the laws
of any State or by any governmental agency in order for the Partnership to
conduct its business;
(iv) any documents which may be required to effect the
continuation of the Partnership, the admission of a substitute or additional
Partner, or the dissolution and termination of the Partnership, provided such
continuation, admission or dissolution and termination is not in violation of
any provision of this Agreement; and
(v) any documents which may be required or desirable to
have the General Partner appointed, and act as, the Tax Matters Partner as
described in the Code.
The foregoing grant of authority is a special power of attorney coupled with an
interest, is irrevocable and shall survive the death or incapacity of any
individual Limited Partner, and shall survive the delivery of any assignment by
a Limited Partner of the whole or any portion of his interest in the
Partnership.
17. Amendment of Agreement.
-----------------------
17.1 GENERAL. The General Partner, without the consent of the
Limited Partners, may amend this Agreement in any respect by executing a
written instrument setting forth the terms of such amendment; provided,
however, that, except as provided in Section 17.2 hereof, any amendment which
alters or changes (i) the distribution rights of any Limited Partner under
Article 8, or (ii) a Limited Partner's Redemption Rights under Section 3.2,
shall require the consent of Limited Partners (excluding the General Partner)
holding more than 50% of the Partnership Interests.
17.2 MERGER, ETC. OF GENERAL PARTNER. Notwithstanding anything to
the contrary contained herein, in the event that (i) the General Partner or any
of its corporate subsidiaries engages in any merger, consolidation or other
combination with or into another Person in which securities of the General
Partner are being issued, acquired, converted or exchanged, (ii) the General
Partner engages in the sale of all or substantially all of its assets,
39
<PAGE> 45
or (iii) the General Partner engages in a reclassification, recapitalization or
change in the outstanding shares of its stock (other than a change in par value
or from par value to no par value, or as a result of a subdivision or
combination as described in the definition of Conversion Factor) which results
in the holders of Common Stock receiving cash, securities or other property
(any of the events listed in clauses (i), (ii) or (iii) hereinafter referred to
as a "Transaction"), the General Partner (or its successor or transferee) may
amend the provisions of this Agreement (including, without limitation, the
definition of Conversion Factor) in any respect in connection with such
Transaction (regardless of whether the amendment alters or changes the
distributions to a Limited Partner or a Limited Partner's Redemption Rights)
without obtaining the consent of any Limited Partner; provided that either (i)
in connection with the Transaction, the Limited Partners are offered the
opportunity to receive for each Unit held by them an amount of cash,
securities, or other property equal to the product of the Conversion Factor and
the amount of cash, securities or other property, if any, paid to a holder of
one share of Common Stock as a result of the Transaction, or (ii) the General
Partner or its corporate subsidiary is the acquiror in such Transaction and the
holders of the Common Stock of the General Partner are not receiving cash,
securities, or other property in such Transaction.
18. Arbitration.
------------
18.1 GENERAL. Notwithstanding anything to the contrary contained in
this Agreement, all claims, disputes and controversies between the parties
hereto (including, without limitation, any claims, disputes and controversies
between the Partnership and any one or more of the Partners and any claims,
disputes and controversies between any one or more Partners and the
indemnification obligations of the TTC Guarantors under Article 14) arising out
of or in connection with this Agreement or the Partnership created hereby, or
any act or failure to act by the General Partner or any other Partner
hereunder, in each case whether or not a party has responded to a claim for
indemnification in accordance with Section 14.4.D, shall be resolved by binding
arbitration in Boston, Massachusetts by J.A.M.S./ENDISPUTE, in accordance with
this Article 18.
18.2 PROCEDURES. Any arbitration called for by this Article 18 shall
be conducted in accordance with the following procedures:
A. The Partnership or any Partner (the "Requesting Party") may
demand arbitration pursuant to Section 18.1 hereof at any time by giving
written notice of such demand (the "Demand Notice") to all other Partners and
(if the Requesting Party is not the Partnership) to the Partnership which
Demand Notice shall describe in reasonable detail the nature of the claim,
dispute or controversy.
B. Within fifteen (15) days after the giving of a Demand
Notice, J.A.M.S./ENDISPUTE shall select and designate in writing three
reputable, disinterested individuals willing to act as an arbitrator of the
claim, dispute or controversy in question.
C. The presentations of the parties hereto in the arbitration
proceeding shall be commenced and completed within sixty (60) days after the
selection of the
40
<PAGE> 46
arbitration panel pursuant to subsection B above, and the arbitration panel
shall render its decision in writing within thirty (30) days after the
completion of such presentations. Any decision concurred in by any two (2) of
the arbitrators shall constitute the decision of the arbitration panel, and
unanimity shall not be required.
D. The arbitration panel shall have the discretion to include
in its decision a direction that all or part of the attorneys' fees and costs
of any party or parties and/or the costs of such arbitration be paid by any
other party or parties. On the application of a party before or after the
initial decision of the arbitration panel, and proof of its attorneys' fees and
costs, the arbitration panel shall order the other party to make any payments
directed pursuant to the preceding sentence.
18.3 BINDING CHARACTER. Any decision rendered by the arbitration
panel pursuant to this Section shall be final and binding on the parties
hereto, and judgment thereon may be entered by any state or federal court of
competent jurisdiction.
18.4 EXCLUSIVITY. Arbitration shall be the exclusive method
available for resolution of claims, disputes and controversies described in
Section 18.1 hereof, and the Partnership and its Partners stipulate that the
provisions hereof shall be a complete defense to any suit, action, or
proceeding in any court or before any administrative or arbitration tribunal
with respect to any such claim, controversy or dispute. The provisions of
this Section 18.4 shall survive the dissolution of the Partnership.
18.5 NO ALTERATION OF AGREEMENT. Nothing contained herein shall be
deemed to give the arbitrators any authority, power or right to alter, change,
amend, modify, add to, or subtract from any of the provisions of this
Agreement.
19. Miscellaneous.
--------------
19.1 NOTICES. Any notice, election or other communication provided
for or required by this Agreement shall be in writing and shall be deemed to
have been given when delivered by telecopy or other facsimile transmission
(confirmed by any of the methods that follow) or by hand, the first business
day after sent by overnight courier (such as Federal Express), or on the second
business day after deposit in the United States Mail, certified or registered,
return receipt requested, postage prepaid, properly addressed to the Partner to
whom such notice is intended to be given at the address for the Partner set
forth on the signature pages of this Agreement, or at such other address as
such person may have previously furnished in writing to the Partnership and
each Partner. A copy of all such notices also should be sent to the General
Partner and addressed as follows:
General Partner: E. Lawrence Miller, President
Bradley Real Estate, Inc.
250 Boylston Street
Boston, MA 02116
Fax No. (617) 266-9453
41
<PAGE> 47
With copies to: Joseph L. Johnson III, Esq.
Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Fax No. (617) 523-1231
19.2 SUCCESSORS AND ASSIGNS. Any person acquiring or claiming an
interest in the Partnership, in any manner whatsoever, shall be subject to and
bound by all of the terms, conditions and obligations of this Agreement to
which his predecessor-in-interest was subject or bound, without regard to
whether such a person has executed a counterpart hereof or any other document
contemplated hereby. No person, including the legal representative, heir or
legatee of a deceased Partner, shall have any rights or obligations greater
than those set forth in this Agreement, and no person shall acquire an interest
in the Partnership or become a Partner thereof except as expressly permitted by
and pursuant to the terms of this Agreement. Subject to the foregoing, and the
provisions of Article 12 above, this Agreement shall be binding upon and inure
to the benefit of the Partners and their respective successors, assigns, heirs,
legal representatives, executors and administrators.
19.3 DUPLICATE ORIGINALS. For the convenience of the Partners, any
number of counterparts hereof may be executed, and each such counterpart shall
be deemed to be an original instrument, and all of which taken together shall
constitute one agreement.
19.4 CONSTRUCTION. The titles of the Sections and subsections herein
have been inserted as a matter of convenience of reference only and shall not
control or affect the meaning or construction of any of the terms or provisions
herein.
19.5 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Delaware. Except to the extent the Act is inconsistent with the
provisions of this Agreement, the provisions of such Act shall apply to the
Partnership.
19.6 OTHER INSTRUMENTS. The parties hereto covenant and agree that
they will execute such other and further instruments and documents as, in the
opinion of the General Partner, are or may become necessary or desirable to
effectuate and carry out the Partnership as provided for by this Agreement.
19.7 GENERAL PARTNER WITH INTEREST AS LIMITED PARTNER. Except as set
forth to the contrary in this Agreement, if the General Partner has an interest
as a Limited Partner in the Partnership, the General Partner shall, with
respect to such interest, enjoy all of the rights and be subject to all of the
obligations and duties of a Limited Partner.
19.8 GENDER. Whenever the context shall so require, all words herein
in any gender shall be deemed to include the masculine, feminine or neuter
gender, all singular words shall include the plural, and all plural words shall
include the singular.
19.9 PRIOR AGREEMENTS SUPERSEDED. This Agreement supersedes any
prior understandings or written or oral agreements amongst the Partners, or any
of them, respecting
42
<PAGE> 48
the within subject matter and contains the entire understanding amongst the
Partners with respect thereto.
19.10 PURCHASE FOR INVESTMENT. Each Partner represents,
warrants and agrees that it has acquired and continues to hold its interest in
the Partnership for its own account for investment only and not for the purpose
of, or with a view toward, the resale or distribution of all or any part
thereof, nor with a view toward selling or otherwise distributing such interest
or any part thereof at any particular time or under any predetermined
circumstances. Each Partner further represents and warrants that it is a
sophisticated investor, able and accustomed to handling sophisticated financial
matters for itself, particularly real estate investments, and that it has a
sufficiently high net worth that it does not anticipate a need for the funds it
has invested in the Partnership in what it understands to be a highly
speculative and illiquid investment.
19.11 WAIVER. No consent or waiver, express or implied, by any
Partner to or of any breach or default by any other Partner in the performance
by such other Partner of its obligations hereunder shall be deemed or construed
to be a consent to or waiver of any other breach of default in the performance
by such other Partner of the same or any other obligations of such Partner
hereunder. Failure on the part of any Partner to complain of any act or
failure to act on the part of any other Partner or to declare any other Partner
in default, irrespective of how long such failure continues, shall not
constitute a waiver by such Partner of its rights hereunder.
19.12 SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those to which it is held invalid by such court, shall not be affected thereby.
19.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, which when taken together, shall constitute but one original.
19.14 NOTICE FOR CERTAIN TRANSACTIONS. In the event of (a) a
dissolution or liquidation of the Partnership or the General Partner, (b) a
merger, consolidation or combination of the Partnership or the General Partner
with or into another Person (including the events set forth in Section 17.2),
(c) the sale of all or substantially all of the assets of the Partnership or
the General Partner, or (d) the transfer by the General Partner of all or any
part of its interest in the Partnership, the General Partner shall give written
notice thereof to each Limited Partner at least twenty (20) Trading Days prior
to the effective date or, to the extent applicable, record date of such
transaction, whichever comes first.
[Remainder of Page Intentionally Left Blank]
43
<PAGE> 49
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
NOTICE INFORMATION: GENERAL PARTNER:
Tucker Properties Corporation
40 Slokie Blvd.
Northbrook, IL 60062
Attn: Kenneth Tucker By: _______________________________
Name:
Title:
LIMITED PARTNERS:
1420 Sheridan Road
Wilmette, IL 60091 ___________________________________
Kenneth Tucker
111 Red Oak Lane
Highland Park, IL 60035 ___________________________________
Richard Tucker
119 Ridge Road
Highland Park, IL 60035 ___________________________________
Harold Eisenberg
Ridge Family Partnership
119 Ridge Road
Highland Park, IL 60035
Attn: Harold Eisenberg By: _______________________________
Name:
Title:
1420 Sheridan Road
Wilmette, IL 60091 ___________________________________
Marsha Tucker
2528 Essex Drive
Northbrook, IL 60062 ___________________________________
Sheryl Tucker
44
<PAGE> 50
Michele and William Michlin
as Joint Tenants
41 Willow
Deerfield, IL 60015
Attn: Michele Michlin By: _______________________________
Name:
The Tucker Companies
1420 Sheridan Road
Wilmette, IL 60091
Attn: Kenneth Tucker By: _______________________________
Name:
Title:
Tucker State Street, Inc.
1420 Sheridan Road
Wilmette, IL 60091
Attn: Kenneth Tucker By: _______________________________
Name:
Title:
2552 Knotty Pine Way
Clearwater, FL 34621 ___________________________________
David Sadowsky
466 Santa Cecelia
Solana Beach, CA 92075 ___________________________________
Gregg Sadowsky
Richard Sadowsky Trust
2552 Knotty Pine Way
Clearwater, FL 34621
Attn: David Sadowsky By: _______________________________
Name:
Title:
45
<PAGE> 51
Yosef Sadowsky Trust
2552 Knotty Pine Way
Clearwater, FL 34621
Attn: David Sadowsky By: _______________________________
Name:
Title:
Aaron Tucker Trust
111 Red Oak Lane
Highland Park, IL 60035
Attn: Richard Tucker By: _______________________________
Name:
Title:
Rachel Tucker Trust
111 Red Oak Lane
Highland Park, IL 60035
Attn: Richard Tucker By: _______________________________
Name:
Title:
Allison Tucker Trust
111 Red Oak Lane
Highland Park, IL 60035
Attn: Richard Tucker By: _______________________________
Name:
Title:
Michael Lisnek Trust
41 Willow
Deerfield, IL 60015
Attn: Michele Michlin By: _______________________________
Name:
Title:
46
<PAGE> 52
David Lisnek Trust
41 Willow
Deerfield, IL 60015
Attn: Michele Michlin By: _______________________________
Name:
Title:
Tucker Evansville, Inc.
1420 Sheridan Road
Wilmette, IL 60091
Attn: Kenneth Tucker By: _______________________________
Name:
Title:
47
<PAGE> 1
Exhibit 10.2
TUCKER PROPERTIES CORPORATION SEVERANCE PAY PLAN
------------------------------------------------
SECTION 1
---------
General
-------
1.1. PURPOSE AND EFFECTIVE DATE. Tucker Properties Corporation
(the "Company") has established Tucker Properties Corporation Severance Pay
Plan (the "Plan"), effective as of ______________________, 1995, the "Effective
Date" of the Plan as set forth herein. The purpose of the Plan is to provide
severance payments for eligible employees of the Employers (as defined in
subsection 1.2) in the event their employment is terminated under the
circumstances described herein, which payments are intended to provide
financial assistance during a period of unemployment following such
terminations.
1.2. AFFILIATES. For purposes of the Plan, the term "Affiliate"
means any corporation, trade or business during any period during which it is,
along with the Company, a member of a controlled group of corporations or a
controlled group of trades or businesses, as described in sections 414(b) and
414(c), respectively, of the Internal Revenue Code of 1986, as amended. Any
Affiliate that, with the consent of the Company, adopts the Plan for the
benefit of its eligible employees shall be referred to herein as an "Adopting
Affiliate". The Company and the Adopting Affiliate shall be referred to herein
collectively as the "Employers" and individually as an "Employer".
1.3. PLAN ADMINISTRATION. The authority to control and manage the
operation and administration of the Plan shall be vested in a Committee
consisting of one or more members who shall be appointed by and may be removed
by the Company. The members of the Committee shall be "named fiduciaries" as
described in section 402 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), with respect to their authority under the Plan.
Except as otherwise specifically provided in Section 4, the Company shall be
the Administrator of the Plan and shall have the rights, duties, and
obligations of an "Administrator" as that term is defined in Section 3(16)(A)
of ERISA.
1.4. SOURCE OF PAYMENTS. The obligations of the Employers under
the Plan are purely contractual. Any amount payable under the terms of the
Plan shall be paid from the general assets of the Employers and no trust or
other separate fund shall be established for this purpose.
1.5. NOTICES. Any notice or document required to be filed under
the Plan shall be considered to be properly filed if delivered or mailed by
registered mail, postage prepaid, to the
6141435.6 110295 1925C 020
<PAGE> 2
Committee, in care of the Company, at 40 Skokie Boulevard, Northbrook, Illinois
60062 or such other address the Company has designated for such purpose
hereunder and communicated to Participants. Any notice required under the Plan
may be waived by the person entitled thereto.
1.6. ACTION BY EMPLOYERS. Any action required or permitted to be
taken under the Plan by an Employer that is a corporation shall be by
resolution of its Board of Directors, or by a duly authorized officer of the
Employer, or by such other person or entity as may be designated by the Board
of Directors of the Employer. Any action required or permitted to be taken
under the Plan by an Employer that is a partnership shall be taken by a general
partner of such partnership or by a duly authorized officer thereof.
1.7. GENDER AND NUMBER. Where the context admits, words in any
gender shall include any the other gender, words in the singular shall include
the plural, and the plural shall include the singular.
1.8. GOVERNING LAWS. The Plan shall be construed and administered
in accordance with the internal laws of the State of Illinois, to the extent
that such laws are not preempted by the laws of the United States of America.
1.9. PLAN YEAR. The initial Plan Year shall be the period
beginning on the Effective Date and ending on December 31, 1995. Thereafter,
the Plan Year shall be the calendar year.
1.10. PLAN NOT GUARANTEE OF EMPLOYMENT. The Plan does not constitute
a guarantee of employment by the Employers, and participation in the Plan will
not give any individual the right to be retained in the employ of the
Employers, nor any right or claim to any benefit under the Plan, unless such
right or claim has specifically arisen under the Plan. The Employers reserve
all of their rights to discharge employees at-will or to amend or modify any of
the terms and conditions of their employment.
1.11. PRIOR PLANS. The Plan supersedes any and all severance plans,
programs, arrangements or policies of the Employers, whether written or oral,
pursuant to custom or informal understanding, except any written employment
agreement, severance agreement or retention agreement between an individual
employee and an Employer.
SECTION 2
---------
Participation
-------------
6141435.6 110295 1925C 020
<PAGE> 3
2.1. PARTICIPATION. Each employee of an Employer, other than Ken
Tucker, Richard Tucker, William Karnes or any other employee of an Employer who
is a party to a written employment agreement, severance agreement or retention
agreement relating to his employment, continued employment or termination of
employment with an Employer, shall become a "Participant" in the Plan on the
later of the Effective Date or the date on which he meets all of the following
requirements:
(a) he is classified as a regular full-time employee of an
Employer (as determined in accordance with the customary
practices of the Employer); and
(b) he is not employed as a member of a unit of employees whose
wages, benefits and conditions of employment are determined by
a collective bargaining agreement unless and until such
agreement expressly provides for participation in the Plan.
2.2. DURATION OF PARTICIPATION. An individual shall cease to be a
Participant in, or to have any rights under, the Plan on the date on which he
ceases to meet all of the requirements of subsection 2.1, unless he is then
eligible to receive benefits under the provisions of Section 3. A Participant
who is entitled to payment of a benefit under the provisions of Section 3 shall
remain a Participant in the Plan until the full amount of his benefit has been
paid.
SECTION 3
---------
Severance Benefits
------------------
3.1. ENTITLEMENT TO SEVERANCE BENEFITS. Subject to the terms and
conditions of the Plan, a Participant will be entitled to a "Severance Benefit"
in an amount determined in accordance with the provisions of subsection 3.6 if
his employment with the Employers terminates after the Effective Date and prior
to the Expiration Date (as defined below) for reasons other than voluntary
resignation, death, Cause (as defined in subsection 3.2) or Disability (as
defined in subsection 3.3). The "Expiration Date" of the Plan shall be the
date which is the later of (i) six months after the occurrence of the merger of
the Company with and into Bradley Real Estate, Inc. ("Bradley"), or (ii)
December 31, 1996. If the merger of the Company with and into Bradley does not
occur prior to July 1, 1996, the Expiration Date shall be December 31, 1996.
3.2. CAUSE. For purposes of the Plan, the term "Cause" means an
employee's violation of any policy, rule or procedure of an Employer,
misconduct which represents a serious deviation from
6141435.6 110295 1925C 020
<PAGE> 4
generally accepted norms of behavior, or unsatisfactory performance of duties,
each as determined by the Committee its sole discretion.
3.3. DISABILITY. For purposes of the Plan, the term "Disability"
means the inability of the Participant to continue to perform his duties for an
Employer on a full-time basis as a result of mental or physical illness,
sickness or injury for a period of 6 months within any 12-month period, as
determined by the Committee in its sole discretion.
3.4. GOOD REASON. A Participant's termination of employment shall
not be considered to be on account of voluntary resignation if he resigns his
employment with the Employers for Good Reason. For purposes of the Plan, a
Participant's resignation shall be considered to be on account of "Good Reason"
if he resigns within 60 days following any of the following events which occur
without his consent:
(a) he incurs a substantial adverse change in his authorities or
responsibilities as in effect immediately prior to his
termination of employment;
(b) a reduction in his annual base salary as in effect immediately
prior to his termination of employment (except for uniform
salary reductions affecting all similarly situated employees);
(c) his relocation to an office or job location that is more than
fifty miles from his office or job location immediately prior
to his termination of employment, except for required travel
on business for the Employers and Affiliates to an extent
substantially consistent with his business travel obligations
as in effect immediately prior to his termination of
employment; or
(d) the failure by his Employer to pay any portion of his current
compensation or any portion of an installment of deferred
compensation under any deferred compensation program of the
Employer, within ten days of the date such compensation is
due.
For purposes of the foregoing provisions of this subsection 3.5, any comparison
of the Participant's authorities or responsibilities, annual base salary or
office or job location before and after the Participant's termination of
employment shall be determined without regard to any change made in
anticipation of his termination of employment.
6141435.6 110295 1925C 020
<PAGE> 5
3.5. TRANSFERS, SALES AND DISPOSITIONS. Notwithstanding the
provisions of subsection 3.1, no Severance Benefit shall be payable with
respect to any Participant on account of his termination of employment with the
Employers if:
(a) he is transferred to a position with an Affiliate; or
(b) his termination occurs in connection with the sale or other
disposition of any assets, business, division, facility or
operating unit of the Employers and he is offered employment
with the purchaser or transferee of such assets, business,
division, facility or operating unit or with an Affiliate,
and, in either case, his position with the Affiliate, purchaser or
transferee, as applicable, is at least comparable in pay and position
to the position he held with the Employers immediately prior to his
termination of employment (determined without regard to any reduction
in such pay or position in anticipation of his termination of
employment); or
(c) his termination occurs under circumstances described in
paragraph (a) or (b) and he accepts employment with the
Affiliate, purchaser or transferee, as applicable, regardless
of whether his position with the Affiliate, purchaser or
transferee, as applicable, is at least comparable in pay and
position to the position he held with the Employers
immediately prior to his termination of employment.
3.6. AMOUNT OF SEVERANCE BENEFIT. Subject to the terms and
conditions of the Plan, if a Participant becomes entitled to a Severance
Benefit in accordance with the foregoing provisions of this Section 3, he shall
be entitled to a Severance Benefit in an amount equal to six weeks' Base Pay
(as defined below) plus an additional amount equal to two weeks' Base Pay for
each of his Years of Service (as defined below). For purposes of the Plan:
(a) "Years of Service" shall mean the number of full years of
employment with the Employers and the Affiliates during which
the employee was a regular full-time employee, and service
with The Tucker Companies, Inc. and its affiliates shall be
treated as service with the Employers; and
(b) "Base Pay" shall mean the employee's weekly rate of base
salary or wages at the rate in effect immediately prior to his
termination of employment (determined without regard to any
reduction therein in anticipation of his termination of
employment), excluding bonuses,
6141435.6 110295 1925C 020
<PAGE> 6
overtime and premium pay, shift differentials, incentive compensation
and all other compensation.
3.7. MAXIMUM SEVERANCE BENEFIT. Notwithstanding any other
provision of the Plan, in no event shall the Severance Benefit to which any
Participant is entitled exceed an amount equal to twice the Participant's
annual compensation for the calendar year ending immediately prior to the
Participant's termination of employment.
3.8. PAYMENT OF SEVERANCE BENEFIT. The Severance Benefit described
in subsection 3.6 shall be payable in a lump sum cash payment as soon as
practicable (but in no event later than 15 days) after the Participant's
termination of employment.
3.9. REEMPLOYMENT. If, prior to the payment of a Severance Benefit
in accordance with the Plan, a Participant previously received a severance or
termination benefit attributable to a prior period of employment with the
Employers and Affiliates, such prior period of employment shall be disregarded
for purposes of determining the Participant's Years of Service under subsection
3.6. If a Participant is employed or reemployed by the Employers or Affiliates
after receiving a Severance Benefit under the Plan attributable to a prior
period of employment with the Employers and Affiliates, such prior period of
employment shall be disregarded for purposes of determining the amount of the
Severance Benefit to which the Participant is entitled on account of any
subsequent termination of employment.
3.10. NONALIENATION. Participants shall not have any right to
pledge, hypothecate, anticipate, or in any way create a lien upon any benefits
provided under the Plan, and no benefits payable hereunder shall be assignable
in anticipation of payment, either by voluntary or involuntary acts, or by
operation of law. Nothing in this subsection 3.10 shall limit a Participant's
rights or powers to dispose of his property by will, limit any rights or powers
which his executor or administrator would otherwise have with regard to
benefits to which a Participant is entitled hereunder, or restrict any right of
set-off, counterclaim or recoupment which the Employers may otherwise have
against any Participant.
3.11. WITHHOLDING. All payments with respect to a Participant under
the Plan will be subject to such deductions as may be required to be made
pursuant to law, government regulations or order, or by agreement with or
consent of the recipient. All tax liability of the recipient resulting from
the payments under the Plan shall be the responsibility of the recipient.
6141435.6 110295 1925C 020
<PAGE> 7
3.12. OTHER BENEFITS. The Severance Benefit to which a Participant
is entitled under this Section 3 shall be payable in addition to, and not in
lieu of, all other compensation and benefits accrued by the Participant that
are not conditioned upon his involuntary termination of employment, including
but not limited to, accrued vacation pay and benefits payable under any pension
or savings plan, or any life insurance, medical or disability plan. A
Participant's coverage under any life, medical, accidental death and
dismemberment, long-term disability and other welfare benefit plan maintained
by the Employers or Affiliates shall cease upon the termination of the
Participant's employment, notwithstanding his receipt of a Severance Benefit
under the Plan, subject to the Participant's rights, if any, under the terms of
such plans to extend, convert or otherwise continue coverage following
termination of employment. Benefits under the Plan shall not be taken into
account for purposes of eligibility, vesting or benefit accrual under any
qualified retirement plan maintained by the Employers or Affiliates, and active
participation in all such qualified retirement plans shall cease as of the date
of his termination of employment.
3.13. BENEFITS ON DEATH. In the event of a Participant's death after
becoming entitled to a benefit under the Plan but before complete payment of
his benefit, his benefit shall be paid to his estate.
SECTION 4
---------
Committee
---------
4.1. DUTIES AND AUTHORITY OF COMMITTEE. Except as otherwise
specifically provided in this Section 4, in controlling and managing the
operation and administration of the Plan, the Committee shall have the
following discretionary authority, powers, rights, and duties in addition to
those vested in it elsewhere in the Plan:
(a) to enforce the Plan in accordance with its terms and with such
applicable rules of procedure and regulations as may be
adopted by the Committee;
(b) to determine conclusively all questions arising under the
Plan, including the power to determine the eligibility of
employees and the rights of Participants to benefits under the
Plan, to interpret and construe the provisions of the Plan,
and to remedy any ambiguities, inconsistences or omissions of
whatever kind;
6141435.6 110295 1925C 020
<PAGE> 8
(c) to employ or utilize agents, attorneys, accountants or other
persons (who may also be employed by or represent the
Employers) for such purposes as the Committee considers
necessary or desirable to discharge its duties; and
(d) to establish a claim procedure in accordance with section 503
of ERISA.
The Committee shall act by a majority of its then members, by meeting or by
writing filed without a meeting.
4.2. COMMITTEE DECISION FINAL. To the extent permitted by law, any
interpretation of the Plan and any decision on any matter within the discretion
of the Committee made by it in good faith shall be binding on all persons. A
misstatement or other mistake of fact shall be corrected when it becomes known,
and the Committee shall make such adjustment on account thereof as it considers
equitable and practicable.
4.3. EXERCISE OF COMMITTEE DUTIES. Notwithstanding any other
provisions of the Plan, the Committee shall discharge its duties hereunder
solely in the interests of the Participants entitled to benefits under the Plan
and for the exclusive purpose of providing benefits to Participants according
to the terms and conditions of the Plan. In exercising its authority under the
Plan, the Committee may allocate all or any part of its responsibilities and
powers to any one or more of its members and may delegate all or any part of
its responsibilities and powers to any person or persons selected by it.
4.4. INDEMNIFICATION OF THE COMMITTEE. The members of the
Committee shall be indemnified by the Employers against any and all
liabilities, losses, costs and expenses (including legal fees and expenses) of
whatsoever kind and nature which may be imposed on, incurred by, or asserted
against the Committee or any member thereof by reason of duties or
responsibilities hereunder if the Committee or such member did not act
dishonestly or in willful violation of the law or regulation under which such
liability, loss, cost or expense arises.
4.5. INTERESTED COMMITTEE MEMBER. A member of the Committee may
not decide or determine any matter or question concerning his own benefits
under the Plan or how such benefits are to be paid unless such decision could
be made by him under the Plan if he were not a member of the Committee.
6141435.6 110295 1925C 020
<PAGE> 9
SECTION 5
---------
Amendment or Termination
------------------------
5.1. AMENDMENT OR TERMINATION. The Company may amend or terminate
the Plan at any time to take effect retroactively or otherwise; provided,
however, that no amendment or termination shall adversely affect the Plan
benefits, if any, payable with respect to Participants whose employment with
the Employers terminated prior to such amendment or termination of the Plan;
and provided further that, during the period commencing on the merger of the
Company with and into Bradley and ending on the Expiration Date, the Plan may
not be terminated or amended to adversely affect the rights of Participants.
5.2. SUCCESSORS. The obligations and rights of the Employers under
the Plan shall be binding upon, and inure to the benefit of, any assignee or
successor in interest to an Employer (whether direct or indirect, by purchase,
merger, consolidation or otherwise). None of the Employers shall merge or
consolidate with any other corporation, or liquidate or dissolve without making
suitable arrangements for the payment of any benefits which are or may become
payable under the Plan.
6141435.6 110295 1925C 020
<PAGE> 1
Exhibit 10.3
[TUCKER LETTERHEAD]
[DATE]
Mr. Kenneth Tucker
[ADDRESS]
Re: Severance Agreement
-------------------
Dear Mr. Tucker:
As you know, the board of directors of Tucker Properties Corporation
(the "Company") (and to the extent applicable, Bradley Real Estate, Inc.
("Bradley")) has approved a termination package for you. With the exception of
the payment described in paragraph 1 below, the benefits provided in this
Agreement will be provided only if your employment with the Company and its
affiliates is terminated during the Transition Period. For purposes of this
Agreement, the "Transition Period" is the period commencing as of the date of
this Agreement and ending on the later of (i) the date which is six months
after the merger of the Company with and into Bradley (the "Merger"), or (ii)
December 31, 1996. If the Merger does not occur prior to July 1, 1996, the
Transition Period will expire on December 31, 1996. The purpose of this letter
is to set forth our agreement regarding these benefits:
1. SEVERANCE. If your employment terminates in a Covered
Termination prior to the Merger, you will be entitled to a
"Severance Benefit" in an amount equal $225,000. If your
employment is not terminated in a Covered Termination prior to
the Merger and you are still employed on the date of the
Merger, you will be paid a lump sum cash payment of $225,000
upon the Merger, provided the Merger occurs prior to July 1,
1996 (or such later date as may be mutually agreed by the
Company and Bradley).
2. COVERED TERMINATION. You will be entitled to the benefits
described below if your employment is terminated in a Covered
Termination. A "Covered Termination" means your termination
of employment, during the Transition Period, for reasons other
than your voluntary resignation, death or termination for
Cause or Disability (each as defined below). In addition,
your resignation for Good Reason (as described below) will be
considered a Covered Termination.
6141932.8 110295 1934C 020
<PAGE> 2
For purposes of this Agreement, the term "Cause" means your
violation of any policy, rule or procedure of the Company (or,
after the Merger, Bradley), misconduct which represents a
serious deviation from generally accepted norms of behavior,
or unsatisfactory performance of duties; provided, however,
that the determination of unsatisfactory performance shall be
made based only upon events occurring after the date of this
Agreement. The term "Disability" means your inability to
continue to perform your duties for the Company (or, after the
Merger, Bradley) on a full-time basis as a result of mental or
physical illness, sickness or injury for a period of 6 months
within any 12-month period. Any determination of "Cause" or
"Disability" under this Agreement will be determined by the
Board of Directors of the Company (or, after the Merger,
Bradley); provided, however, that such determination shall not
be made in an arbitrary or capricious manner.
Your termination of employment will be considered to be on
account of "Good Reason" if you resign within 60 days
following any of the following events which occur without your
consent:
(A) you incur a substantial adverse change in your
position, authorities, responsibilities or status as
in effect immediately prior to your termination of
employment;
(B) a reduction in your annual base salary as in effect
immediately prior to your termination of employment
(except for uniform salary reductions affecting all
similarly situated employees);
(C) your relocation to an office or job location that is
more than fifty miles from your office or job
location immediately prior to your termination of
employment, except for required travel on business to
an extent substantially consistent with your business
travel obligations as in effect immediately prior to
your termination of employment; or
(D) the failure by the Company (or, after the Merger,
Bradley) to pay any portion of your current
compensation or any portion of an installment of
deferred compensation under any deferred compensation
program within ten days of the date such compensation
is due.
-2-
6141932.8 110295 1934C 020
<PAGE> 3
For purposes of the foregoing, any comparison of your
position, authorities, responsibilities, status, annual base
salary or office or job location before and after your
termination of employment shall be determined without regard
to any change made in anticipation of your termination of
employment.
3. HEALTH COVERAGE CONTINUATION. For the first 12 months
following your Covered Termination, the Company (or, after the
Merger, Bradley) will provide medical coverage to you and your
dependents at its expense; provided, however, that the Company
(or, after the Merger, Bradley) will only be required to
provide such coverage to the extent that the cost to the
Company (or, after the Merger, Bradley) is not more than 200%
of the premium incurred by the Company (or, after the Merger,
Bradley) for medical coverage for you and your dependents
immediately prior to your termination of employment (the
"Maximum Coverage Cost"). The coverage to be provided to you
pursuant to the foregoing provisions of this Section 3 shall
be the coverage that is provided from time to time to
similarly situated active employees of the Company or, if no
such coverage is provided, such coverage as can be purchased
from an insurance company that is comparable to the medical
coverage last provided to similarly situated active employees
of the Company. If, in any event, the cost of the
post-termination coverage exceeds the Maximum Coverage Cost,
the Company (or, after the Merger, Bradley) shall be required
to contribute to the cost of such coverage an amount equal to
the Maximum Coverage Cost.
The medical coverage provided pursuant to this Section 3 will
terminate, subject to any rights you and your dependents have
to continue the coverage under applicable law, if, during the
12-month continuation period, you become covered under another
employer's group medical plan without application of any
pre-existing condition limitations or other limitations on
coverage. This coverage is in addition to any coverage to
which you may be entitled under applicable laws relating to
continuation of medical coverage.
4. AUTOMOBILE LEASE. Following your Covered Termination, the
Company (or, after the Merger, Bradley) will pay your car
rental through the end of its term as in effect on the date
hereof and, upon the expiration of such rental, you will have
the right to exercise any purchase options provided in the
current rental
-3-
6141932.8 110295 1934C 020
<PAGE> 4
agreement. A copy of the current rental agreement is attached
hereto.
5. OFFICE FURNITURE. Upon your Covered Termination, you will
have the option to purchase your existing office furniture at
the fair market value.
If you die after becoming entitled to any benefits in accordance with
the foregoing and prior to full payment thereof, any remaining payments will be
made to your estate.
In consideration of the foregoing, you agree to waive all of your
rights under the Lease of Art dated as of October 12, 1993 (the "Lease")
between you and the Company and acknowledge that it is null and void. Further,
you represent that you have full and clear title to the art which is subject to
the Lease and that you will transfer such title to the Company as soon as
practicable after the date of this Agreement; provided, however, that if such
transfer does not occur until after the Merger, you agree to transfer the title
to Bradley.
In consideration for the severance and other benefits described above,
you voluntarily agree to release the Company and Bradley (and their respective
affiliates and subsidiaries, successors and assigns, and the current and former
officers, directors, shareholders, employees and agents of the foregoing)
generally from all claims, demands and liabilities of every name and nature in
connection with your employment and resignation or termination from the Company
or Bradley, as applicable, whether arising in contract, tort, equity or
otherwise (including any express or implied contract or obligation of good
faith or fair dealing or any theory of wrongful termination) or under any
discrimination statute including without limitation, the Age Discrimination in
Employment Act. This Agreement also covers any claims that you may have for
attorneys' fees. Notwithstanding the foregoing, you shall continue to be
entitled to indemnification for your actions as an employee or officer of the
Company (or, after the Merger, Bradley) for periods prior to your termination
of employment in accordance with the Company's (or, after the Merger,
Bradley's) corporate charter and by-laws and shall continue to be covered for
periods prior to your termination of employment under the Company's (or
Bradley's) corporate indemnification policies.
This Agreement is a legally binding document and your signature will
commit you to its terms. The Company encourages you to obtain legal advice
before you sign it. You acknowledge that you have been advised to discuss all
aspects of this Agreement with your attorney, that you have carefully read and
fully understand all of the provisions of this Agreement and that you
voluntarily enter into this Agreement.
-4-
6141932.8 110295 1934C 020
<PAGE> 5
You acknowledge that you have been given the opportunity to consider
this Agreement for twenty-one (21) days before signing it. If you sign this
Agreement within less than twenty-one (21) days of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this Agreement for the entire twenty-one (21) day
period. The Company acknowledges that for a period of seven (7) days from the
date you sign this Agreement, you have the right to revoke this Agreement by
written notice to the Company. This Agreement shall not become effective until
the expiration of the enforcement period.
Please indicate your agreement with the foregoing by signing and
dating a copy of this letter and returning it to me by ________________, 1995.
Sincerely yours,
_____________________
Agreed to by:
________________________
Kenneth Tucker
Date:___________________
Consented to by:
Bradley Real Estate, Inc.
By________________________
Its_______________________
-5-
6141932.8 110295 1934C 020
<PAGE> 1
Exhibit 10.4
[TUCKER LETTERHEAD]
[DATE]
Mr. Richard Tucker
[ADDRESS]
Re: Severance Agreement
-------------------
Dear Mr. Tucker:
As you know, the board of directors of Tucker Properties Corporation
(the "Company") (and to the extent applicable, Bradley Real Estate, Inc.
("Bradley")) has approved a termination package for you. The benefits provided
in this Agreement will be provided only if your employment with the Company and
its affiliates is terminated during the Transition Period. For purposes of
this Agreement, the "Transition Period" is the period commencing as of the date
of this Agreement and ending on the later of (i) the date which is six months
after the merger of the Company with and into Bradley (the "Merger"), or (ii)
December 31, 1996. If the Merger does not occur prior to July 1, 1996, the
Transition Period will expire on December 31, 1996. The purpose of this letter
is to set forth our agreement regarding these benefits:
1. COVERED TERMINATION. You will be entitled to the benefits
described below if your employment is terminated in a Covered
Termination. A "Covered Termination" means your termination
of employment, during the Transition Period, for reasons other
than your voluntary resignation, death or termination for
Cause or Disability (each as defined below). In addition,
your resignation for Good Reason (as described below) will be
considered a Covered Termination.
For purposes of this Agreement, the term "Cause" means your
violation of any policy, rule or procedure of the Company (or,
after the Merger, Bradley), misconduct which represents a
serious deviation from generally accepted norms of behavior,
or unsatisfactory performance of duties; provided, however,
that the determination of unsatisfactory performance shall be
made based only upon events occurring after the date of this
Agreement. The term "Disability" means your inability to
continue to perform your duties for the Company (or, after the
Merger, Bradley) on a full-time basis as a result of mental or
physical illness, sickness or injury for a period of 6 months
within any
6141932.8 110295 1934C 020
<PAGE> 2
12-month period. Any determination of "Cause" or "Disability"
under this Agreement will be determined by the Board of
Directors of the Company (or, after the Merger, Bradley);
provided, however, that such determination shall not be made
in an arbitrary or capricious manner.
Your termination of employment will be considered to be on
account of "Good Reason" if you resign within 60 days
following any of the following events which occur without your
consent:
(A) you incur a substantial adverse change in your
position, authorities, responsibilities or status as
in effect immediately prior to your termination of
employment;
(B) a reduction in your annual base salary as in effect
immediately prior to your termination of employment
(except for uniform salary reductions affecting all
similarly situated employees);
(C) your relocation to an office or job location that is
more than fifty miles from your office or job
location immediately prior to your termination of
employment, except for required travel on business to
an extent substantially consistent with your business
travel obligations as in effect immediately prior to
your termination of employment; or
(D) the failure by the Company (or, after the Merger,
Bradley) to pay any portion of your current
compensation or any portion of an installment of
deferred compensation under any deferred compensation
program within ten days of the date such compensation
is due.
For purposes of the foregoing, any comparison of your
position, authorities, responsibilities, status, annual base
salary or office or job location before and after your
termination of employment shall be determined without regard
to any change made in anticipation of your termination of
employment.
2. SEVERANCE BENEFIT. If your employment terminates in a Covered
Termination you will be entitled to a "Severance Benefit" in
an amount equal to six weeks' Base Pay plus an additional
amount equal to two weeks' Base Pay for each of your Years of
Service, up to a maximum amount of twice your annual
compensation for
-2-
6141932.8 110295 1934C 020
<PAGE> 3
the calendar year ending immediately prior to your termination
of employment. For purposes of calculating your Severance
Benefit, "Base Pay" means your weekly rate of base salary or
wages at the rate in effect immediately prior to your
termination of employment (determined without regard to any
reduction therein in anticipation of your termination of
employment), excluding bonuses, overtime and premium pay,
shift differentials, incentive compensation and all other
compensation. The term "Years of Service" means the number of
full years of employment with the Company and its affiliates
(including employment with Bradley following the Merger during
which you were a regular full-time employee, and service with
The Tucker Companies, Inc. and its affiliates shall be treated
as service for this purpose.
The Severance Benefit shall be payable in a lump sum cash
payment as soon as practicable (but in no event later than 15
days) after your termination of employment.
3. HEALTH COVERAGE CONTINUATION. For the first 12 months
following your Covered Termination, the Company (or, after the
Merger, Bradley) will provide medical coverage to you and your
dependents at its expense; provided, however, that the Company
(or, after the Merger, Bradley) will only be required to
provide such coverage to the extent that the cost to the
Company (or, after the Merger, Bradley) of such coverage is
not more than 200% of the premium incurred by the Company (or,
after the Merger, Bradley) for medical coverage for you and
your dependents immediately prior to your termination of
employment (the "Maximum Coverage Cost"). The coverage to be
provided to you pursuant to the foregoing provisions of this
Section 3 shall be the coverage that is provided from time to
time to similarly situated active employees of the Company or,
if no such coverage is provided, such coverage as can be
purchased from an insurance company that is comparable to the
medical coverage last provided to similarly situated active
employees of the Company. If, in any event, the cost of the
post-termination coverage exceeds the Maximum Coverage Cost,
the Company (or, after the Merger, Bradley) shall be required
to contribute to the cost of such coverage an amount equal to
the Maximum Coverage Cost.
The medical coverage provided pursuant to this Section 3 will
terminate, subject to any rights you and your dependents have
to continue the coverage under
-3-
6141932.8 110295 1934C 020
<PAGE> 4
applicable law, if, during the 12-month continuation period,
you become covered under another employer's group medical plan
without application of any pre-existing condition limitations
or other limitations on coverage. This coverage is in
addition to any coverage to which you may be entitled under
applicable laws relating to continuation of medical coverage.
4. OFFICE FURNITURE. Upon your Covered Termination, you will
have the option to purchase your existing office furniture at
the fair market value.
If you die after becoming entitled to any benefits in accordance with
the foregoing and prior to full payment thereof, any remaining payments will be
made to your estate.
In consideration for the severance and other benefits described above,
you voluntarily agree to release the Company and Bradley (and their respective
affiliates and subsidiaries, successors and assigns, and the current and former
officers, directors, shareholders, employees and agents of the foregoing)
generally from all claims, demands and liabilities of every name and nature in
connection with your employment and resignation or termination from the Company
or Bradley, as applicable, whether arising in contract, tort, equity or
otherwise (including any express or implied contract or obligation of good
faith or fair dealing or any theory of wrongful termination) or under any
discrimination statute including without limitation, the Age Discrimination in
Employment Act. This Agreement also covers any claims that you may have for
attorneys' fees. Notwithstanding the foregoing, you shall continue to be
entitled to indemnification for your actions as an employee or officer of the
Company (or, after the Merger, Bradley) for periods prior to your termination
of employment in accordance with the Company's (or, after the Merger,
Bradley's) corporate charter and by-laws and shall continue to be covered for
periods prior to your termination of employment under the Company's (or
Bradley's) corporate indemnification policies.
This Agreement is a legally binding document and your signature will
commit you to its terms. The Company encourages you to obtain legal advice
before you sign it. You acknowledge that you have been advised to discuss all
aspects of this Agreement with your attorney, that you have carefully read and
fully understand all of the provisions of this Agreement and that you
voluntarily enter into this Agreement.
You acknowledge that you have been given the opportunity to consider
this Agreement for twenty-one (21) days before signing it. If you sign this
Agreement within less than twenty-one (21) days of the date of its delivery to
you, you acknowledge that
-4-
6141932.8 110295 1934C 020
<PAGE> 5
such decision was entirely voluntary and that you had the opportunity to
consider this Agreement for the entire twenty-one (21) day period. The Company
acknowledges that for a period of seven (7) days from the date you sign this
Agreement, you have the right to revoke this Agreement by written notice to the
Company. This Agreement shall not become effective until the expiration of the
enforcement period.
Please indicate your agreement with the foregoing by signing and
dating a copy of this letter and returning it to me by ________________, 1995.
Sincerely yours,
_____________________
Agreed to by:
________________________
Richard Tucker
Date:___________________
Consented to by:
Bradley Real Estate, Inc.
By________________________
Its_______________________
-5-
6141932.8 110295 1934C 020
<PAGE> 1
Exhibit 10.5
[TUCKER LETTERHEAD]
[DATE]
Mr. Harold Eisenberg
[ADDRESS]
Re: Severance Agreement
-------------------
Dear Mr. Eisenberg:
As you know, the board of directors of Tucker Properties Corporation
(the "Company") (and to the extent applicable, Bradley Real Estate, Inc.
("Bradley")) has approved a termination package for you. The benefits provided
in this Agreement will be provided only if your employment with the Company and
its affiliates is terminated during the Transition Period. For purposes of
this Agreement, the "Transition Period" is the period commencing as of the date
of this Agreement and ending on the later of (i) the date which is six months
after the merger of the Company with and into Bradley (the "Merger"), or (ii)
December 31, 1996. If the Merger does not occur prior to July 1, 1996, the
Transition Period will expire on December 31, 1996. The purpose of this letter
is to set forth our agreement regarding these benefits:
1. COVERED TERMINATION. You will be entitled to the benefits
described below if your employment is terminated in a Covered
Termination. A "Covered Termination" means your termination
of employment, during the Transition Period, for reasons other
than your voluntary resignation, death or termination for
Cause or Disability (each as defined below). In addition,
your resignation for Good Reason (as described below) will be
considered a Covered Termination.
For purposes of this Agreement, the term "Cause" means your
violation of any policy, rule or procedure of the Company (or,
after the Merger, Bradley), misconduct which represents a
serious deviation from generally accepted norms of behavior,
or unsatisfactory performance of duties; provided, however,
that the determination of unsatisfactory performance shall be
made based only upon events occurring after the date of this
Agreement. The term "Disability" means your inability to
continue to perform your duties for the Company (or, after the
Merger, Bradley) on a full-time basis as a result of mental or
physical illness, sickness or injury for a period of 6 months
within any
6141932.8 110295 1934C 020
<PAGE> 2
12-month period. Any determination of "Cause" or "Disability"
under this Agreement will be determined by the Board of
Directors of the Company (or, after the Merger, Bradley);
provided, however, that such determination shall not be made
in an arbitrary or capricious manner.
Your termination of employment will be considered to be on
account of "Good Reason" if you resign within 60 days
following any of the following events which occur without your
consent:
(A) you incur a substantial adverse change in your
position, authorities, responsibilities or status as
in effect immediately prior to your termination of
employment;
(B) a reduction in your annual base salary as in effect
immediately prior to your termination of employment
(except for uniform salary reductions affecting all
similarly situated employees);
(C) your relocation to an office or job location that is
more than fifty miles from your office or job
location immediately prior to your termination of
employment, except for required travel on business to
an extent substantially consistent with your business
travel obligations as in effect immediately prior to
your termination of employment; or
(D) the failure by the Company (or, after the Merger,
Bradley) to pay any portion of your current
compensation or any portion of an installment of
deferred compensation under any deferred compensation
program within ten days of the date such compensation
is due.
For purposes of the foregoing, any comparison of your
position, authorities, responsibilities, status, annual base
salary or office or job location before and after your
termination of employment shall be determined without regard
to any change made in anticipation of your termination of
employment.
2. SEVERANCE BENEFIT. If your employment terminates in a Covered
Termination you will be entitled to a "Severance Benefit" in
an amount equal to six weeks' Base Pay plus an additional
amount equal to two weeks' Base Pay for each of your Years of
Service, up to a maximum amount of twice your annual
compensation for
-2-
6141932.8 110295 1934C 020
<PAGE> 3
the calendar year ending immediately prior to your termination
of employment. For purposes of calculating your Severance
Benefit, "Base Pay" means your weekly rate of base salary or
wages at the rate in effect immediately prior to your
termination of employment (determined without regard to any
reduction therein in anticipation of your termination of
employment), excluding bonuses, overtime and premium pay,
shift differentials, incentive compensation and all other
compensation. The term "Years of Service" means the number of
full years of employment with the Company and its affiliates
(including employment with Bradley following the Merger)
during which you were a regular full-time employee, and
service with The Tucker Companies, Inc. and its affiliates
shall be treated as service for this purpose.
The Severance Benefit shall be payable in a lump sum cash
payment as soon as practicable (but in no event later than 15
days) after your termination of employment.
3. HEALTH COVERAGE CONTINUATION. For the first 12 months
following your Covered Termination, the Company (or, after the
Merger, Bradley) will provide medical coverage to you and your
dependents at its expense; provided, however, that the Company
(or, after the Merger, Bradley) will only be required to
provide such coverage to the extent that the cost to the
Company (or, after the Merger, Bradley) of such coverage is
not more than 200% of the premium incurred by the Company (or,
after the Merger, Bradley) for medical coverage for you and
your dependents immediately prior to your termination of
employment (the "Maximum Coverage Cost"). The coverage to be
provided to you pursuant to the foregoing provisions of this
Section 3 shall be the coverage that is provided from time to
time to similarly situated active employees of the Company or,
if no such coverage is provided, such coverage as can be
purchased from an insurance company that is comparable to the
medical coverage last provided to similarly situated active
employees of the Company. If, in any event, the cost of the
post-termination coverage exceeds the Maximum Coverage Cost,
the Company (or, after the Merger, Bradley) shall be required
to contribute to the cost of such coverage an amount equal to
the Maximum Coverage Cost.
The medical coverage provided pursuant to this Section 3 will
terminate, subject to any rights you and your dependents have
to continue the coverage under
-3-
6141932.8 110295 1934C 020
<PAGE> 4
applicable law, if, during the 12-month continuation period,
you become covered under another employer's group medical plan
without application of any pre-existing condition limitations
or other limitations on coverage. This coverage is in
addition to any coverage to which you may be entitled under
applicable laws relating to continuation of medical coverage.
If you die after becoming entitled to any benefits in accordance with
the foregoing and prior to full payment thereof, any remaining payments will be
made to your estate.
In consideration for the severance and other benefits described above,
you voluntarily agree to release the Company and Bradley (and their respective
affiliates and subsidiaries, successors and assigns, and the current and former
officers, directors, shareholders, employees and agents of the foregoing)
generally from all claims, demands and liabilities of every name and nature in
connection with your employment and resignation or termination from the Company
or Bradley, as applicable, whether arising in contract, tort, equity or
otherwise (including any express or implied contract or obligation of good
faith or fair dealing or any theory of wrongful termination) or under any
discrimination statute including without limitation, the Age Discrimination in
Employment Act. This Agreement also covers any claims that you may have for
attorneys' fees. Notwithstanding the foregoing, you shall continue to be
entitled to indemnification for your actions as an employee or officer of the
Company (or, after the Merger, Bradley) for periods prior to your termination
of employment in accordance with the Company's (or, after the Merger,
Bradley's) corporate charter and by-laws and shall continue to be covered for
periods prior to your termination of employment under the Company's (or
Bradley's) corporate indemnification policies.
This Agreement is a legally binding document and your signature will
commit you to its terms. The Company encourages you to obtain legal advice
before you sign it. You acknowledge that you have been advised to discuss all
aspects of this Agreement with your attorney, that you have carefully read and
fully understand all of the provisions of this Agreement and that you
voluntarily enter into this Agreement.
You acknowledge that you have been given the opportunity to consider
this Agreement for twenty-one (21) days before signing it. If you sign this
Agreement within less than twenty-one (21) days of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this Agreement for the entire twenty-one (21) day
period. The Company acknowledges that for a period of seven (7) days from the
date you sign this Agreement, you have
-4-
6141932.8 110295 1934C 020
<PAGE> 5
the right to revoke this Agreement by written notice to the Company. This
Agreement shall not become effective until the expiration of the enforcement
period.
Please indicate your agreement with the foregoing by signing and
dating a copy of this letter and returning it to me by ________________, 1995.
Sincerely yours,
_____________________
Agreed to by:
________________________
Harold Eisenberg
Date:___________________
Consented to by:
Bradley Real Estate, Inc.
By________________________
Its_______________________
-5-
6141932.8 110295 1934C 020
<PAGE> 1
Exhibit 10.6
[TUCKER LETTERHEAD]
[DATE]
Mr. Norris Eber
[ADDRESS]
Re: Severance Agreement
-------------------
Dear Mr. Eber:
As you know, the board of directors of Tucker Properties Corporation
(the "Company") (and to the extent applicable, Bradley Real Estate, Inc.
("Bradley")) has approved a termination package for you. With the exception of
the Retention Bonus described in paragraph 1 below, the benefits provided in
this Agreement will be provided only if your employment with the Company and
its affiliates is terminated during the Transition Period. For purposes of
this Agreement, the "Transition Period" is the period commencing as of the date
of this Agreement and ending on the later of (i) the date which is six months
after the merger of the Company with and into Bradley (the "Merger"), or (ii)
December 31, 1996. If the Merger does not occur prior to July 1, 1996, the
Transition Period will expire on December 31, 1996. The purpose of this letter
is to set forth our agreement regarding these benefits:
1. RETENTION BONUS. If you remain employed by the Company until
the merger of the Company with and into Bradley, then you will
be paid, upon the date of the merger, a lump sum cash payment
equal to the difference between $200,000 and the amount of the
Severance Benefit that will be payable to you pursuant to
paragraph 3 below if your employment is terminated in a
Covered Termination (as defined in paragraph 2 below). You
will not be entitled to this payment unless the merger of the
Company with and into Bradley occurs prior to July 1, 1996.
You will be entitled to this payment upon the merger, without
regard to whether your employment then terminates.
2. COVERED TERMINATION. You will be entitled to the benefits
described below if your employment is terminated in a Covered
Termination. A "Covered Termination" means your termination
of employment, during the Transition Period, for reasons other
than your voluntary resignation, death or termination for
Cause or Disability (each as defined below). In addition,
your resignation for Good Reason (as
6141932.8 110295 1934C 020
<PAGE> 2
described below) will be considered a Covered Termination.
For purposes of this Agreement, the term "Cause" means your
violation of any policy, rule or procedure of the Company (or,
after the Merger, Bradley), misconduct which represents a
serious deviation from generally accepted norms of behavior,
or unsatisfactory performance of duties; provided, however,
that the determination of unsatisfactory performance shall be
made based only upon events occurring after the date of this
Agreement. The term "Disability" means your inability to
continue to perform your duties for the Company (or, after the
Merger, Bradley) on a full-time basis as a result of mental or
physical illness, sickness or injury for a period of 6 months
within any 12-month period. Any determination of "Cause" or
"Disability" under this Agreement will be determined by the
Board of Directors of the Company (or, after the Merger,
Bradley); provided, however, that such determination shall not
be made in an arbitrary or capricious manner.
Your termination of employment will be considered to be on
account of "Good Reason" if you resign within 60 days
following any of the following events which occur without your
consent:
(A) you incur a substantial adverse change in your
position, authorities, responsibilities or status as
in effect immediately prior to your termination of
employment;
(B) a reduction in your annual base salary as in effect
immediately prior to your termination of employment
(except for uniform salary reductions affecting all
similarly situated employees);
(C) your relocation to an office or job location that is
more than fifty miles from your office or job
location immediately prior to your termination of
employment, except for required travel on business to
an extent substantially consistent with your business
travel obligations as in effect immediately prior to
your termination of employment; or
(D) the failure by the Company (or, after the Merger,
Bradley) to pay any portion of your current
compensation or any portion of an installment of
deferred compensation under any deferred
-2-
6141932.8 110295 1934C 020
<PAGE> 3
compensation program within ten days of the date such
compensation is due.
For purposes of the foregoing, any comparison of your
position, authorities, responsibilities, status, annual base
salary or office or job location before and after your
termination of employment shall be determined without regard
to any change made in anticipation of your termination of
employment.
3. SEVERANCE BENEFIT. If your employment terminates in a Covered
Termination you will be entitled to a "Severance Benefit" in
an amount equal to six weeks' Base Pay plus an additional
amount equal to two weeks' Base Pay for each of your Years of
Service, up to a maximum amount of twice your annual
compensation for the calendar year ending immediately prior to
your termination of employment. For purposes of calculating
your Severance Benefit, "Base Pay" means your weekly rate of
base salary or wages at the rate in effect immediately prior
to your termination of employment (determined without regard
to any reduction therein in anticipation of your termination
of employment), excluding bonuses, overtime and premium pay,
shift differentials, incentive compensation and all other
compensation. The term "Years of Service" means the number of
full years of employment with the Company and its affiliates
(including employment with Bradley following the merger of the
Company with and into Bradley) during which you were a regular
full-time employee, and service with The Tucker Companies,
Inc. and its affiliates shall be treated as service for this
purpose.
The Severance Benefit shall be payable in a lump sum cash
payment as soon as practicable (but in no event later than 15
days) after your termination of employment.
4. HEALTH COVERAGE CONTINUATION. For the first 12 months
following your Covered Termination, the Company (or, after the
Merger, Bradley) will provide medical coverage to you and your
dependents at its expense; provided, however, that the Company
(or, after the Merger, Bradley) will only be required to
provide such coverage to the extent that the cost to the
Company (or, after the Merger, Bradley) of such coverage is
not more than 200% of the premium incurred by the Company (or,
after the Merger, Bradley) for medical coverage for you and
your dependents immediately prior to your termination of
employment (the "Maximum Coverage
-3-
6141932.8 110295 1934C 020
<PAGE> 4
Cost"). The coverage to be provided to you pursuant to the
foregoing provisions of this Section 3 shall be the coverage
that is provided from time to time to similarly situated
active employees of the Company or, if no such coverage is
provided, such coverage as can be purchased from an insurance
company that is comparable to the medical coverage last
provided to similarly situated active employees of the
Company. If, in any event, the cost of the post-termination
coverage exceeds the Maximum Coverage Cost, the Company (or,
after the Merger, Bradley) shall be required to contribute to
the cost of such coverage an amount equal to the Maximum
Coverage Cost.
The medical coverage provided pursuant to this Section 3 will
terminate, subject to any rights you and your dependents have
to continue the coverage under applicable law, if, during the
12-month continuation period, you become covered under another
employer's group medical plan without application of any
pre-existing condition limitations or other limitations on
coverage. This coverage is in addition to any coverage to
which you may be entitled under applicable laws relating to
continuation of medical coverage.
If you die after becoming entitled to any benefits in accordance with
the foregoing and prior to full payment thereof, any remaining payments will be
made to your estate.
In consideration for the severance and other benefits described above,
you voluntarily agree to release the Company and Bradley (and their respective
affiliates and subsidiaries, successors and assigns, and the current and former
officers, directors, shareholders, employees and agents of the foregoing)
generally from all claims, demands and liabilities of every name and nature in
connection with your employment and resignation or termination from the Company
or Bradley, as applicable, whether arising in contract, tort, equity or
otherwise (including any express or implied contract or obligation of good
faith or fair dealing or any theory of wrongful termination) or under any
discrimination statute including without limitation, the Age Discrimination in
Employment Act. This Agreement also covers any claims that you may have for
attorneys' fees. Notwithstanding the foregoing, you shall continue to be
entitled to indemnification for your actions as an employee or officer of the
Company (or, after the Merger, Bradley) for periods prior to your termination
of employment in accordance with the Company's (or, after the Merger,
Bradley's) corporate charter and by-laws and shall continue to be covered for
periods prior to your termination of employment under the Company's (or
Bradley's) corporate indemnification policies.
-4-
6141932.8 110295 1934C 020
<PAGE> 5
This Agreement is a legally binding document and your signature will
commit you to its terms. The Company encourages you to obtain legal advice
before you sign it. You acknowledge that you have been advised to discuss all
aspects of this Agreement with your attorney, that you have carefully read and
fully understand all of the provisions of this Agreement and that you
voluntarily enter into this Agreement.
You acknowledge that you have been given the opportunity to consider
this Agreement for twenty-one (21) days before signing it. If you sign this
Agreement within less than twenty-one (21) days of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this Agreement for the entire twenty-one (21) day
period. The Company acknowledges that for a period of seven (7) days from the
date you sign this Agreement, you have the right to revoke this Agreement by
written notice to the Company. This Agreement shall not become effective until
the expiration of the enforcement period.
Please indicate your agreement with the foregoing by signing and
dating a copy of this letter and returning it to me by ________________, 1995.
Sincerely yours,
_____________________
Agreed to by:
________________________
Norris Eber
Date:___________________
Consented to by:
Bradley Real Estate, Inc.
By________________________
Its_______________________
-5-
6141932.8 110295 1934C 020
<PAGE> 1
Exhibit 10.7
[TUCKER LETTERHEAD]
[DATE]
Mr. Larry Tucker
[ADDRESS]
Re: Severance Agreement
-------------------
Dear Mr. Tucker:
As you know, the board of directors of Tucker Properties Corporation
(the "Company") (and to the extent applicable, Bradley Real Estate, Inc.
("Bradley")) has approved a termination package for you. The benefits provided
in this Agreement will be provided only if your employment with the Company and
its affiliates is terminated during the Transition Period. For purposes of
this Agreement, the "Transition Period" is the period commencing as of the date
of this Agreement and ending on the later of (i) the date which is six months
after the merger of the Company with and into Bradley (the "Merger"), or (ii)
December 31, 1996. If the Merger does not occur prior to July 1, 1996, the
Transition Period will expire on December 31, 1996. The purpose of this letter
is to set forth our agreement regarding these benefits:
1. COVERED TERMINATION. You will be entitled to the benefits
described below if your employment is terminated in a Covered
Termination. A "Covered Termination" means your termination
of employment, during the Transition Period, for reasons other
than your voluntary resignation, death or termination for
Cause or Disability (each as defined below). In addition,
your resignation for Good Reason (as described below) will be
considered a Covered Termination.
For purposes of this Agreement, the term "Cause" means your
violation of any policy, rule or procedure of the Company (or,
after the Merger, Bradley), misconduct which represents a
serious deviation from generally accepted norms of behavior,
or unsatisfactory performance of duties; provided, however,
that the determination of unsatisfactory performance shall be
made based only upon events occurring after the date of this
Agreement. The term "Disability" means your inability to
continue to perform your duties for the Company (or, after the
Merger, Bradley) on a full-time basis as a result of mental or
physical illness, sickness or injury for a period of 6 months
within any
6141932.8 110295 1934C 020
<PAGE> 2
12-month period. Any determination of "Cause" or "Disability"
under this Agreement will be determined by the Board of
Directors of the Company (or, after the Merger, Bradley);
provided, however, that such determination shall not be made
in an arbitrary or capricious manner.
Your termination of employment will be considered to be on
account of "Good Reason" if you resign within 60 days
following any of the following events which occur without your
consent:
(A) you incur a substantial adverse change in your
position, authorities, responsibilities or status as
in effect immediately prior to your termination of
employment;
(B) a reduction in your annual base salary as in effect
immediately prior to your termination of employment
(except for uniform salary reductions affecting all
similarly situated employees);
(C) your relocation to an office or job location that is
more than fifty miles from your office or job
location immediately prior to your termination of
employment, except for required travel on business to
an extent substantially consistent with your business
travel obligations as in effect immediately prior to
your termination of employment; or
(D) the failure by the Company (or, after the Merger,
Bradley) to pay any portion of your current
compensation or any portion of an installment of
deferred compensation under any deferred compensation
program within ten days of the date such compensation
is due.
For purposes of the foregoing, any comparison of your
position, authorities, responsibilities, status, annual base
salary or office or job location before and after your
termination of employment shall be determined without regard
to any change made in anticipation of your termination of
employment.
2. SEVERANCE BENEFIT. If your employment terminates in a Covered
Termination you will be entitled to a "Severance Benefit" in
an amount equal to six weeks' Base Pay plus an additional
amount equal to two weeks' Base Pay for each of your Years of
Service, up to a maximum amount of twice your annual
compensation for
-2-
6141932.8 110295 1934C 020
<PAGE> 3
the calendar year ending immediately prior to your termination
of employment. For purposes of calculating your Severance
Benefit, "Base Pay" means your weekly rate of base salary or
wages at the rate in effect immediately prior to your
termination of employment (determined without regard to any
reduction therein in anticipation of your termination of
employment), excluding bonuses, overtime and premium pay,
shift differentials, incentive compensation and all other
compensation. The term "Years of Service" means the number of
full years of employment with the Company and its affiliates
(including employment with Bradley following the merger of the
Company with and into Bradley) during which you were a regular
full-time employee, and service with The Tucker Companies,
Inc. and its affiliates shall be treated as service for this
purpose.
The Severance Benefit shall be payable in a lump sum cash
payment as soon as practicable (but in no event later than 15
days) after your termination of employment.
3. HEALTH COVERAGE CONTINUATION. For the first 12 months
following your Covered Termination, the Company (or, after the
Merger, Bradley) will provide medical coverage to you and your
dependents at its expense; provided, however, that the Company
(or, after the Merger, Bradley) will only be required to
provide such coverage to the extent that the cost to the
Company (or, after the Merger, Bradley) of such coverage is
not more than 200% of the premium incurred by the Company (or,
after the Merger, Bradley) for medical coverage for you and
your dependents immediately prior to your termination of
employment (the "Maximum Coverage Cost"). The coverage to be
provided to you pursuant to the foregoing provisions of this
Section 3 shall be the coverage that is provided from time to
time to similarly situated active employees of the Company or,
if no such coverage is provided, such coverage as can be
purchased from an insurance company that is comparable to the
medical coverage last provided to similarly situated active
employees of the Company. If, in any event, the cost of the
post-termination coverage exceeds the Maximum Coverage Cost,
the Company (or, after the Merger, Bradley) shall be required
to contribute to the cost of such coverage an amount equal to
the Maximum Coverage Cost.
The medical coverage provided pursuant to this Section 3 will
terminate, subject to any rights you and your
-3-
6141932.8 110295 1934C 020
<PAGE> 4
dependents have to continue the coverage under applicable law, if,
during the 12-month continuation period, you become covered under
another employer's group medical plan without application of any
pre-existing condition limitations or other limitations on
coverage. This coverage is in addition to any coverage to which
you may be entitled under applicable laws relating to continuation
of medical coverage.
If you die after becoming entitled to any benefits in accordance with
the foregoing and prior to full payment thereof, any remaining payments will be
made to your estate.
In consideration for the severance and other benefits described above,
you voluntarily agree to release the Company and Bradley (and their respective
affiliates and subsidiaries, successors and assigns, and the current and former
officers, directors, shareholders, employees and agents of the foregoing)
generally from all claims, demands and liabilities of every name and nature in
connection with your employment and resignation or termination from the Company
or Bradley, as applicable, whether arising in contract, tort, equity or
otherwise (including any express or implied contract or obligation of good
faith or fair dealing or any theory of wrongful termination) or under any
discrimination statute including without limitation, the Age Discrimination in
Employment Act. This Agreement also covers any claims that you may have for
attorneys' fees. Notwithstanding the foregoing, you shall continue to be
entitled to indemnification for your actions as an employee or officer of the
Company (or, after the Merger, Bradley) for periods prior to your termination
of employment in accordance with the Company's (or, after the Merger,
Bradley's) corporate charter and by-laws and shall continue to be covered for
periods prior to your termination of employment under the Company's (or
Bradley's) corporate indemnification policies.
This Agreement is a legally binding document and your signature will
commit you to its terms. The Company encourages you to obtain legal advice
before you sign it. You acknowledge that you have been advised to discuss all
aspects of this Agreement with your attorney, that you have carefully read and
fully understand all of the provisions of this Agreement and that you
voluntarily enter into this Agreement.
You acknowledge that you have been given the opportunity to consider
this Agreement for twenty-one (21) days before signing it. If you sign this
Agreement within less than twenty-one (21) days of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this Agreement for the entire twenty-one (21) day
period. The Company acknowledges that for a period of
-4-
6141932.8 110295 1934C 020
<PAGE> 5
seven (7) days from the date you sign this Agreement, you have the right to
revoke this Agreement by written notice to the Company. This Agreement shall
not become effective until the expiration of the enforcement period.
Please indicate your agreement with the foregoing by signing and
dating a copy of this letter and returning it to me by ________________, 1995.
Sincerely yours,
_____________________
Agreed to by:
________________________
Larry Tucker
Date:___________________
Consented to by:
Bradley Real Estate, Inc.
By________________________
Its_______________________
-5-
6141932.8 110295 1934C 020
<PAGE> 1
Exhibit 10.8
[TUCKER LETTERHEAD]
[DATE]
Mr. William M. Karnes
[ADDRESS]
Re: Additional Severance Benefit
----------------------------
Dear Mr. Karnes:
As you know, the board of directors of Tucker Properties Corporation
(the "Company") (and to the extent applicable, Bradley Real Estate, Inc.
("Bradley")) has approved an additional severance benefit that will be provided
to you in the event your employment with the Company is terminated under
circumstances that entitle you to termination benefits under the terms of your
employment agreement with the Company dated as of August 11, 1994 (the
"Employment Agreement). The following benefits will be provided only if your
employment with the Company and its affiliates is terminated during the
Transition Period. For purposes of this Agreement, the "Transition Period" is
the period commencing as of the date of this Agreement and ending on the later
of (i) the date which is six months after the merger of the Company with and
into Bradley (the "Merger"), or (ii) December 31, 1996. If the Merger does not
occur prior to July 1, 1996, the Transition Period will expire on December 31,
1996.
Specifically, if your employment is terminated during the Transition
Period and under circumstances that entitle you to termination benefits under
the terms of the Employment Agreement, then, for the first 12 months following
your termination of employment, you and your dependents will be provided with
medical coverage at the expense of the Company (or, after the Merger, Bradley);
provided, however, that the Company (or, after the Merger, Bradley) will only
be required to provide such coverage to the extent that the cost to the Company
(or, after the Merger, Bradley) of such coverage is not more than 200% of the
premium incurred by the Company (or, after the Merger, Bradley) for medical
coverage for you and your dependents immediately prior to your termination of
employment (the "Maximum Coverage Cost"). The coverage to be provided to you
pursuant to the foregoing provisions of this Agreement shall be the coverage
that is provided from time to time to similarly situated active employees of
the Company or, if no such coverage is provided, such coverage as can be
purchased from an insurance company that is comparable to the medical coverage
last provided to similarly situated active employees of the Company. If, in
any event, the cost of the post-termination coverage exceeds the Maximum
Coverage Cost, the Company (or, after the Merger, Bradley) shall be required to
6141932.8 110295 1934C 020
<PAGE> 2
contribute to the cost of such coverage an amount equal to the Maximum Coverage
Cost.
The medical coverage provided pursuant to this Agreement will
terminate, subject to any rights you and your dependents have to continue the
coverage under applicable law, if, during the 12-month continuation period, you
become covered under another employer's group medical plan without application
of any pre-existing condition limitations or other limitations on coverage.
This coverage is in addition to any coverage to which you may be entitled under
applicable laws relating to continuation of medical coverage.
In consideration for the benefits described above, you voluntarily
agree to release the Company and Bradley (and their respective affiliates and
subsidiaries, successors and assigns, and the current and former officers,
directors, shareholders, employees and agents of the foregoing) generally from
all claims, demands and liabilities of every name and nature in connection with
your employment and resignation or termination from the Company or Bradley, as
applicable, whether arising in contract, tort, equity or otherwise (including
any express or implied contract or obligation of good faith or fair dealing or
any theory of wrongful termination) or under any discrimination statute
including without limitation, the Age Discrimination in Employment Act. This
Agreement also covers any claims that you may have for attorneys' fees.
Notwithstanding the foregoing, you shall continue to be entitled to
indemnification for your actions as an employee or officer of the Company (or,
after the Merger, Bradley) for periods prior to your termination of employment
in accordance with the Company's (or, after the Merger, Bradley's) corporate
charter and by- laws and shall continue to be covered for periods prior to your
termination of employment under the Company's (or Bradley's) corporate
indemnification policies.
This Agreement is a legally binding document and your signature will
commit you to its terms. The Company encourages you to obtain legal advice
before you sign it. You acknowledge that you have been advised to discuss all
aspects of this Agreement with your attorney, that you have carefully read and
fully understand all of the provisions of this Agreement and that you
voluntarily enter into this Agreement.
You acknowledge that you have been given the opportunity to consider
this Agreement for twenty-one (21) days before signing it. If you sign this
Agreement within less than twenty-one (21) days of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this Agreement for the entire twenty-one (21) day
period. The Company acknowledges that for a period of seven (7) days from the
date you sign this Agreement, you have
-2-
6141932.8 110295 1934C 020
<PAGE> 3
the right to revoke this Agreement by written notice to the Company. This
Agreement shall not become effective until the expiration of the enforcement
period.
Please indicate your agreement with the foregoing by signing and
dating a copy of this letter and returning it to me by ________________, 1995.
Sincerely yours,
_____________________
Agreed to by:
________________________
William M. Karnes
Date:___________________
Consented to by:
Bradley Real Estate, Inc.
By________________________
Its_______________________
-3-
6141932.8 110295 1934C 020
<PAGE> 1
Exhibit 10.9
CONSULTING AGREEMENT
--------------------
THIS AGREEMENT, made and entered into as of __________, 1995 between
Ken Tucker ("Consultant"), and Bradley Real Estate, Inc., a Maryland
corporation ("Company");
WITNESSETH THAT:
---------------
WHEREAS, Company desires to retain the services of Consultant as a
consultant and Consultant desires to provide such services to Company;
NOW, THEREFORE, the parties agree as follows:
1. TERM. Subject to the terms and conditions of this Agreement,
Company hereby retains the services of Consultant as a consultant for the Term
(as defined below) and Consultant hereby agrees to render consulting services
to Company during the Term in accordance with this Agreement. The "Term" shall
be the three year period commencing on the merger of Tucker Properties
Corporation ("Tucker") with and into the Company (the "Effective Date").
Notwithstanding the foregoing or any other provision of this Agreement, this
Agreement shall become effective only upon the merger of Tucker with and into
the Company and if such merger does not occur prior to July 1, 1996, this
Agreement shall be of no force and effect and shall terminate automatically
without any further actions of the parties.
2. DUTIES. Consultant agrees that, during the Term he shall
consult and advise with the Company on such matters relating to retail real
estate matters of the Company as requested from time to time by the Company;
provided, however, that Consultant shall not pursuant to this Agreement be
required to perform any day-to-day services for the Company and shall not be
required to devote more than 10 hours per month to the performance of
consulting services to the Company pursuant to this Agreement. The Company
shall use its reasonable best efforts to provide Consultant with at least one
weeks' notice prior to the times at which the Company will require the services
of Consultant pursuant to this Agreement. Subject to the provisions of Section
5, nothing in this Section 2 shall preclude Consultant from performing services
for persons or entities other than Company to the extent he is able to properly
carry out his responsibilities under this Section 2.
3. CONSULTING FEES. Subject to the terms and conditions of this
Agreement, during the Term while he is obligated to provide services to Company
pursuant to this Agreement, Consultant shall be entitled to the following
payments:
6141930.6 110295 1920C 020
<PAGE> 2
(a) an annual "Consulting Fee" of $135,000, which Consulting Fee
shall be paid annually on the Effective Date, the first
anniversary of the Effective Date and the second anniversary
of the Effective Date, respectively; and
(b) reimbursement for reasonable business expenses which are
incurred by Consultant in performing consulting services for
the Company pursuant to this Agreement and which are approved
in advance by the Company's Chief Executive Officer.
4. DUTIES AND FEES UPON TERMINATION. Consultant shall have no
obligation to provide services pursuant to this Agreement, and Company shall
have no obligation to pay any Consulting Fees to Consultant, for periods after
the last day of the Term.
5. CONFIDENTIALITY. Consultant hereby agrees that:
(a) except as may be required by law or the lawful order of a
court or agency of competent jurisdiction or as otherwise
consented to in writing by Company, he will keep secret and
confidential indefinitely all non-public information
concerning Company and its affiliates (including Tucker) which
is acquired by or disclosed to him during the course of his
engagement by Company pursuant to this Agreement (or was
acquired by or disclosed to him during the course of his prior
employment with Tucker) and not to disclose such information,
either directly or indirectly, to any other person, firm, or
business entity or to use it in any way; and
(b) upon the expiration of the Term, he will promptly return to
Company any and all records, documents, physical property,
information or other materials relating to the business of
Company and its affiliates (including Tucker) obtained or
prepared by him during the course of his engagement by the
Company pursuant to this Agreement (or was obtained or
prepared by him during the course of his prior employment with
Tucker), unless the Company consents to his retention of such
materials.
Nothing in the foregoing provisions of this Section 5 shall be construed so as
to prevent Consultant from using in connection with his employment for himself,
for an employer other than Company or otherwise, knowledge which was acquired
by him during the course of his engagement by Company pursuant to this
Agreement (or his prior employment with Tucker) and which is
-2-
6141930.6 110295 1920C 020
<PAGE> 3
generally known to persons of his experience in other companies in the same
industry. Consultant acknowledges that Company would be irreparably injured by
a violation of this Section 5 and agrees that Company, in addition to any other
remedies available to it for such breach or threatened breach, including,
without limitation, the recovery of damages, shall be entitled to an injunction
restraining Consultant from any actual or threatened breach of this Section 5,
or to any other appropriate equitable remedy, without any bond or other
security being required.
6. RELATIONSHIP OF THE PARTIES. It is agreed and understood
between the parties to this Agreement that the services performed by Consultant
pursuant to this Agreement will be performed as an independent contractor and
not as an employee of Company or its affiliates.
7. NOTICES. All notices hereunder shall be in writing and shall
be deemed sufficiently given if personally delivered, sent by registered or
certified mail, postage prepaid, sent by overnight courier or facsimile, at
such addresses as the parties may from time to time provide to each other.
8. NONALIENATION. Consultant's interests under this Agreement
are not subject to the claims of his creditors and may not otherwise be
voluntarily or involuntarily assigned, alienated or encumbered.
9. APPLICABLE LAW. The provisions of this Agreement shall be
construed in accordance with the laws of the state of Illinois.
10. WAIVER OF BREACH. No waiver by any party hereto of a breach
of any provision of this Agreement by the other party, or of compliance with
any condition or provision of this Agreement to be performed by such other
party, will operate or be construed as a waiver of any subsequent breach by
such other party or any similar or dissimilar provisions and conditions at the
same or any subsequent time. The failure of any party hereto to take any
action by reason of such breach will not deprive such party of the right to
take actions at any time while such breach continues.
11. SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of Company, its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of Company's assets and business.
12. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement will not affect the validity or enforceability of
any other provision of this Agreement, and this
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6141930.6 110295 1920C 020
<PAGE> 4
Agreement will be construed as if such invalid or unenforceable provision were
omitted (but only to the extent that such provision cannot be appropriately
reformed or modified).
13. AMENDMENT. This Agreement may be amended or cancelled only by
mutual agreement of the parties hereto without the consent of any other person.
So long as Consultant lives, no person, other than the parties hereto, shall
have any rights under or interest in this Agreement or the subject matter
hereof.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties concerning the subject matter hereof, and
supersedes all prior and contemporaneous agreements, if any, between the
parties relating to the subject matter hereof.
IN WITNESS WHEREOF, Consultant has hereunto set his hand and Company
has caused these presents to be executed in its name and on its behalf, all as
of the day and year first above written.
_________________________
Ken Tucker
Bradley Real Estate, Inc.
By________________________
Its______________________
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6141930.6 110295 1920C 020
<PAGE> 1
Exhibit 99.1
NEWS BULLETIN
Re: Bradley Real Estate, Inc. Tucker Properties Corporation
250 Boylston Street 40 Skokie Blvd.
Boston, MA 02115 Northbrook, IL 60062
NYSE: BTR NYSE: TUC
_____________________________________________________________________________
For Further Information:
Bradley Real Estate, Inc. Tucker Properties Corporation
E. Lawrence Miller Kenneth Tucker
Thomas P. D'Arcy William M. Karnes
(617) 421-0675 (708) 272-9800
FOR IMMEDIATE RELEASE
MONDAY, OCTOBER 30, 1995
BRADLEY REAL ESTATE, INC. SIGNS DEFINITIVE MERGER
AGREEMENT TO ACQUIRE TUCKER PROPERTIES CORPORATION
Boston, October 30, 1995 - BRADLEY REAL ESTATE, INC. (NYSE: BTR) and TUCKER
PROPERTIES CORPORATION (NYSE: TUC) announced today they had executed a
definitive merger agreement pursuant to which Bradley would acquire Tucker.
Upon consummation of the transaction, Bradley will own 31 properties
aggregating approximately 7.3 million square feet in eleven states and will
have a total market capitalization of approximately $490 million.
Pursuant to the terms of the Merger Agreement, if the average closing price of
Bradley common stock for the twenty trading days prior to the fifth day
preceding the closing is $16.00 or more, each share of Tucker common stock
will be exchanged for 0.665 of a share of Bradley common stock. If such
average closing price is between $15.50 and $16.00, the exchange ratio will be
$10.64 divided by the average closing price. If the average closing price is
less than $15.50, the exchange ratio will be 0.686. The closing price for
Bradley common stock on October 27, 1995 on the New York Stock Exchange was
$15.00. The average closing price for Bradley common stock for the twenty
trading days ended October 27, 1995 was $15.89.
The merger agreement has been unanimously approved by the Board of Directors
of both Bradley and Tucker. The merger is subject to various approvals by third
parties and other closing conditions including approval by the stockholders of
both companies. It is currently anticipated that the transaction will be closed
in the first quarter of 1996. The merger has been structured as a tax free
transaction and will be treated as a purchase for accounting purposes.
<PAGE> 2
"Tucker Properties is a solid strategic fit that meets Bradley's acquisition
criteria of being accretive while expanding our ability to enhance shareholder
value through the redevelopment and repositioning of some outstanding assets,"
said E. Lawrence Miller, Bradley's President and Chief Executive Officer. "The
acquisition will combine two well-established community shopping center
portfolios having strong grocery store, drug store and value-oriented retail
tenants. We believe that the combination of these two Midwest portfolios will
establish a powerful base to continue our growth in this important region."
Mr. Miller continued, "We expect to benefit from improved operational
efficiencies due to economies of scale. In addition, we anticipate Bradley's
larger market capitalization will improve our access to the capital markets,
including sources of unsecured debt. We believe that the enhanced financial
flexibility will help us grow our business through investing in existing
properties as well as in making future acquisitions."
Kenneth L. Tucker, Tucker's Chairman of the Board and President, said, "The
combination of Bradley and Tucker will provide an opportunity for greater
growth in our business than if we remain independent. After months of
exploring the Company's alternatives, we believe that this transaction is in
the best interests of our stockholders."
Miller, Bradley's President and CEO, will serve as president and chief
executive officer of the combined entity, and Thomas D'Arcy and Richard Heuer
will remain executive vice presidents of Bradley. The composition of
Bradley's Board of Directors will remain the same following the consummation
of the transaction.
PaineWebber Incorporated is acting as financial advisor to Tucker. Alex. Brown
& Sons Incorporated is acting as financial advisor to Bradley.
Tucker Properties Corporation is a Midwest leader in the development,
acquisition and long-term ownership of community shopping centers.
Headquartered in Northbrook, Illinois, it is a REIT that owns and manages more
than 4.3 million square feet of income-producing properties. The properties
are located mostly in Chicago and the Midwest with tenants primarily selling
value-oriented merchandise.
Bradley Real Estate, Inc., one of the country's oldest real estate investment
trusts, specializes in the ownership and operation of established,
income-producing commercial real estate, primarily community shopping centers.
Bradley now owns three million square feet of property in the Midwest and New
England regions.
TO RECEIVE ADDITIONAL INFORMATION ON BRADLEY REAL ESTATE FREE OF CHARGE VIA FAX,
DIAL 1-800-PRO-INFO AND ENTER "BTR."
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