Exhibit 10.1
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the
10th day of December, 2004, by and between THACKERAY CORPORATION, a Delaware
corporation ("Thackeray") and EST ORLANDO, LTD., a Florida limited partnership
("Buyer").
W I T N E S S E T H:
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WHEREAS, BT Orlando Limited Partnership (the "Partnership") was
formed as a Florida limited partnership on June 18, 1996;
WHEREAS, Xxxxxxxx-Xxxxx Industries, Inc., a Delaware corporation
("Xxxxxxxx") is a general partner of the Partnership and Buyer is a limited
partner of the Partnership;
WHEREAS, Thackeray is not a partner of the Partnership, but owns
100% of the outstanding stock of Xxxxxxxx and is a party to that certain
Ratification Agreement dated August 1, 2001 by and between Xxxx Investco GP,
Union Realty Company, GP, and Thackeray, pursuant to which Thackeray is
obligated to guarantee certain obligations of Xxxxxxxx under that certain
Amended and Restated Agreement of Limited Partnership dated August 1, 2001 (the
"Partnership Agreement");
WHEREAS, Thackeray is the owner of approximately 78 acres of land
(the "Phase II Land") described in Exhibit "A" attached hereto and located
adjacent to the approximately 140 commercial acres of land in Orlando, Florida
owned by the Partnership and developed as the Festival Bay Center (the
"Project");
WHEREAS, in connection with and as collateral for debt financing
secured to fund construction of the Project, Thackeray has encumbered the Phase
II Land to secure certain financing extended to the Partnership in connection
with the development and construction of the Project;
WHEREAS, Xxxxxxxx, Xxxxxxxxx and Buyer have entered into that
certain Agreement for Purchase and Sale dated July 23, 2004, as amended (the
"Omnibus Agreement"), which Omnibus Agreement provides for the purchase and sale
of Xxxxxxxx'x general partner interest in the Partnership and Thackeray's Phase
II Land to Buyer upon the terms and subject to the conditions set forth in the
Omnibus Agreement;
WHEREAS, pursuant to Article XI of the Omnibus Agreement,
Thackeray and Xxxxxxxx are permitted, in certain circumstances and upon the
payment of certain amounts to Buyer, to terminate the Omnibus Agreement in the
event a competing acquisition proposal is presented;
WHEREAS, Thackeray has received a competing acquisition proposal
from an unrelated third party; and
WHEREAS, notwithstanding the foregoing competitive proposal,
Thackeray and Buyer desire to consummate the sale of the Phase II Land on the
terms and conditions set forth in the Omnibus Agreement, but also desire to
provide for the payment of additional consideration to Thackeray in the event
Buyer sells the Phase II Land to certain parties pursuant to a contract entered
into within one year after the closing of the transactions contemplated in the
Omnibus Agreement;
NOW, THEREFORE, for and in consideration of the premises, the
mutual representations, warranties, covenants and agreements contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Thackeray and Buyer, intending to be legally
bound, hereby make this Agreement upon the terms and conditions as follows:
1. Sale of Phase II Land to Xxxxx. The parties hereto agree that,
in the event Buyer sells the Phase II Land (or any portion thereof) to Xx.
Xxxxxx Xxxxx, or to an entity controlled by or affiliated with Xx. Xxxxxx Xxxxx
(collectively, "Xxxxx") pursuant to a contract entered into between Buyer and
Xxxxx within one year of the closing of the transactions contemplated in the
Omnibus Agreement, then Buyer shall pay fifty percent (50%) of any "Profit" (as
defined below) realized by Buyer from such sale to Thackeray, as and when such
Profit is realized and received by Buyer.
For purposes of this Agreement, "Profit" shall equal the excess of
(a) the gross sales proceeds received by Buyer from the sale of the Phase II
Land to Xxxxx, over (b) the sum of (i) expenses of sale incurred by Buyer in
connection with the sale to Xxxxx (brokerage commissions, attorneys' fees,
documentary stamp taxes and other expenses directly related to and associated
with such sale), (ii) the amount paid by Buyer to Thackeray for the Phase II
Land ($6,000,000.00), (iii) $8,500,000.00, (iv) any amount paid by Buyer after
its acquisition of the Phase II Land for real estate taxes and interest expense
directly attributable to ownership of the Phase II Land after such acquisition
and (v) an amount equal to the interest which would have accrued on Buyer's
equity investment in the Phase II Land accruing from the date of Buyer's
acquisition thereof, computed at a rate equal to the one year LIBOR rate in
effect as of the date of closing plus one and one-half percent (1.5%). For
example, if Buyer sells the Phase II Land to Xxxxx for a stated purchase price
of $16,500,000 prior to December 31, 2004, and assuming selling expenses,
interest and taxes of $500,000, the "Profit" would be $1,500,000.00 and
Thackeray would be entitled to a payment of $750,000.00. It is the intent of
this Agreement (and the foregoing computation and definition) that "Profit"
reflect the net positive cash position of Buyer after sale of the Phase II Land
to Xxxxx, taking into consideration the amount paid by Buyer to Thackeray for
the Phase II Land pursuant to the Omnibus Agreement and the amount paid by Buyer
in order to obtain release of the Phase II Land from the mortgages encumbering
same and securing the Project financing.
2. Payment to Thackeray. If the sale of the Phase II Land by Buyer
to Xxxxx is consummated on an "all cash" basis, Buyer shall pay 50% of the
Profit to Thackeray simultaneous with the closing of the sale of the Phase II
Land to Xxxxx. If Buyer extends purchase money financing to Xxxxx pursuant to
which Xxxxx pays a portion of the purchase price after closing on such sale,
then in such event the total "Profit" to be realized by Buyer from such
transaction (including any interest received on the deferred portion of such
purchase price) shall be calculated as of such closing date, assuming for
purposes of such computation full payment of the deferred portion of the
purchase price (and interest thereon) at the closing, and Buyer shall pay to
Thackeray such portion of the total Profit as the amount of each payment
received by Buyer bears to the total amounts payable to Buyer from Xxxxx
pursuant to such transaction (such amounts to be calculated in a manner
consistent with the installment sale provisions of Section 453 of the Internal
Revenue Code of 1986, as amended).
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3. Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been given if
delivered by hand, or by facsimile provided that the sending party obtains
written confirmation of receipt, or sent by recognized overnight courier (such
as Federal Express) or mailed by certified or registered mail, return receipt
requested, in a postage prepaid envelope, and addressed to the addresses of the
parties as set forth in the Omnibus Agreement. Notices personally delivered,
sent by telecopy or sent by overnight courier shall be deemed given on the date
of delivery and notices mailed in accordance with the foregoing shall be deemed
to be given three (3) days after deposit in the U.S. mail. Attorneys may send
notices on behalf of their respective clients.
4. Assignment by Thackeray. Thackeray shall be entitled to assign
its rights hereunder without the prior written consent of Buyer. Buyer may not
assign its rights or obligations hereunder without the prior written consent of
Thackeray.
5. General Provisions.
a. Attorneys' Fees. Thackeray and the Buyer shall pay their
own attorneys' fees.
b. Recordation. Neither this Agreement nor any memorandum
thereof or reference thereto may be recorded in any public records in the State
of Florida.
c. Waiver. No waiver, modification or discharge of any
provision of this Agreement shall be effective unless it is in writing and
signed by the party against whom it is asserted, and any such written waiver
shall only be applicable to the specific instance to which it relates and shall
not be deemed to be a continuing or future waiver.
d. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement and signatures transmitted by
telecopy shall be treated as originals for the purpose of binding the parties
hereto.
e. Omnibus Agreement. If and to the extent the provisions of
this Agreement conflict with or are inconsistent with the provisions of the
Omnibus Agreement, the provisions of this Agreement shall control.
f. Captions. Captions and paragraph headings in this Agreement
are inserted for convenience of reference only and do not define, describe or
limit the scope or the intent of this Agreement. In construing this Agreement,
the singular shall be held to include the plural, the plural shall be held to
include the singular, the use of any gender shall be held to include every other
and all genders.
g. Successors. All terms of this Agreement shall be binding
upon and inure to the benefit of the parties and their respective administrators
or executors, successors and permitted assigns.
h. Effective Date. The Effective Date of this Agreement shall
be the date set forth on page 1 hereof.
i. Severability. If any part of this Agreement or any other
agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible.
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j. Governing Law and Venue. This Agreement and all
transactions contemplated by this Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Florida without regard
to principles of conflicts of laws. Venue of all proceedings in connection
herewith shall be exclusively in Orange County, Florida, and each parry hereby
waives whatever their respective rights may have been in the selection of venue.
k. Negotiations. All of the parties to this Agreement have
participated fully in the negotiation and preparation hereof, and, accordingly,
this Agreement shall not be more strictly construed against any one of the
parties hereto.
l. No Third Party Beneficiaries. This Agreement is for the
sole benefit of the parties hereto, their respective successors and permitted
assigns, and no other person or entity shall be entitled to rely upon or receive
any benefit from this Agreement or any term hereof.
m. Time is of the Essence. Time shall be of the essence for
each and every provision of this Agreement.
n. Further Assurance. Buyer and Thackeray shall, at all
relevant times, execute such other and further documents or instruments as may
be necessary or appropriate to effectuate the terms of this Agreement. This
provision shall survive the Closing of this transaction.
o. Signatures. Electronically transmitted signatures,
including by telephone and e-mail, shall be deemed to be originals and shall be
binding as such.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
BUYER:
EST ORLANDO, LTD., a Florida limited
partnership
By: EST ORLANDO CORPORATION, a
Florida corporation, its general partner
By: /s/ Xxxxxx Xxxxxx
` -------------------------------------
Xxxxxx Xxxxxx, President
THACKERAY:
THACKERAY CORPORATION, a Delaware
corporation
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, Vice President
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