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EXHIBIT 10.17
Pennsy Drive Warehouse I
00xx Xxxxxx Xxxxxxxxxxxx
00xx Xxxxxx Wooded Lot
Bridgeview Warehouse
Ontario Warehouse
PURCHASE AGREEMENT [WAREHOUSE PARTNERSHIP INTERESTS]
THIS PURCHASE AGREEMENT [WAREHOUSE PARTNERSHIP INTERESTS] (the
"Agreement") is made this 6th day of October, 1995, by and between XXXXXX X.
XXXX, personally ("Seller"), and DART GROUP CORPORATION ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the owner of the interests set forth on Exhibit A-2
(the "Undisputed Interests") in the Partnerships set forth on Exhibit A-1;
WHEREAS, each Partnership is the owner of the "Property" ascribed to
it on Exhibit B;
WHEREAS, Purchaser desires to buy (or, with respect to certain Interim
Interests and Properties as more fully set forth below, obtain an option to
buy) and Seller is willing to sell the Undisputed Interests, the Undisputed
Economic Interests (all as hereinafter defined) and/or the Properties on the
terms and conditions hereinafter set forth, it being the intent of the parties
that Seller is to convey good and marketable title to the Undisputed Interests
and the Economic Interests appurtenant thereto (the "Undisputed Economic
Interests");
NOW, THEREFORE, in consideration of the foregoing, One Dollar ($1.00),
the mutual promises herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser hereby agree as follows:
1. CONVEYANCE OF PROPERTIES.
1.1 At any time following the entry of a Final Order
(hereinafter defined) by the U.S. Bankruptcy Court for the District of
Maryland, Southern Division (the "Bankruptcy Court") as more fully set forth in
Section 6.5 below confirming the Plan of Reorganization (hereinafter defined)
for the "75th Avenue Headquarters" (as defined on Exhibit B-2) or at any time
following the occurrence of any event which makes Bankruptcy Court approval
unnecessary, Purchaser may elect to have Seller
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cause Seventy-Fifth Avenue Associates Limited Partnership to convey fee title
to the 00xx Xxxxxx Headquarters to 75th Avenue Headquarters, L.L.C., a Delaware
limited liability company ("Headquarters Newco"). Seller shall promptly cause
such conveyance to occur if Purchaser so elects. The organizational documents
of Headquarters Newco are attached hereto as Exhibit C. Said conveyance shall
be a capital contribution by said Partnership to Headquarters Newco. Unless
the need for approval is superseded by the Plan of Reorganization and Final
Order, said conveyance shall be subject to the approval of the holder of the
Underlying Loan Documents applicable to the 75th Avenue Headquarters (as set
forth on Exhibit G attached hereto). For purposes of this Agreement, "Final
Order" means an order by the Bankruptcy Court as to which (a) no appeal has
been taken or motion for reconsideration filed within the period allowed for
such an appeal or motion, or (b) if an appeal has been taken or reconsideration
sought, no stay of such order pending appeal or motion for reconsideration has
been obtained, or (c) if a stay of such order has been obtained, such stay has
expired or been vacated.
1.2 At any time following the entry of a Final Order by
the Bankruptcy Court as more fully set forth in Section 6.5 below confirming
the Plan of Reorganization for the "Wooded Lot" (as defined on Exhibit B-3) or
at any time following the occurrence of any event which makes Bankruptcy Court
approval unnecessary, Purchaser may elect to have Seller cause Seventy-Fifth
Avenue Associates Limited Partnership to convey fee title to the Wooded Lot to
75th Avenue Wooded Lot, L.L.C., a Delaware limited liability company ("Wooded
Lot Newco"). Seller shall promptly cause such conveyance to occur if Purchaser
so elects. The organizational documents of Wooded Lot Newco are attached
hereto as Exhibit D. Said conveyance shall be a capital contribution by said
Partnership to Wooded Lot Newco. Unless the need for approval is superseded by
the Plan of Reorganization and Final Order, said conveyance shall be subject to
the approval of the holder of the Underlying Loan Documents applicable to the
Wooded Lot (as set forth on Exhibit G attached hereto).
1.3 At any time following the entry of a Final Order by
the Bankruptcy Court as more fully set forth in Section 6.5 below confirming
the Plan of Reorganization for the "Bridgeview Warehouse" (as defined on
Exhibit B-4) or at any time following the occurrence of any event which makes
Bankruptcy Court approval unnecessary, Purchaser may elect to have Seller cause
American National Bank and Trust Company of Chicago to convey fee title to the
Bridgeview Warehouse to Bridgeview Warehouse, L.L.C., a Delaware limited
liability company ("Bridgeview Newco"). Seller shall promptly cause such
conveyance to occur if Purchaser so elects. The organizational documents of
Bridgeview Newco are attached hereto as Exhibit E. Said conveyance shall be a
capital contribution by Trak Chicago Limited Partnership I to Bridgeview Newco.
Unless the need for approval is superseded by the Plan of Reorganization and
Final Order, said conveyance shall be subject
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to the approval of the holder of the Underlying Loan Documents applicable to
the Bridgeview Warehouse (as set forth on Exhibit G attached hereto).
1.4 Immediately following the entry of a Final Order by
the Bankruptcy Court as more fully set forth in Section 6.5 below confirming
the Plan of Reorganization for the "Ontario Warehouse" (as defined on Exhibit
B-5) or immediately upon the occurrence of any event which makes Bankruptcy
Court approval unnecessary, Seller shall cause Combined Properties/Ontario
Limited Partnership to convey fee title to the Ontario Warehouse to Ontario
Warehouse, L.L.C., a Delaware limited liability company ("Ontario Newco"). The
organizational documents of Ontario Newco are attached hereto as Exhibit F.
Said conveyance shall be a capital contribution by said Partnership to Ontario
Newco. Unless the need for approval is superseded by the Plan of
Reorganization and Final Order, said conveyance shall be subject to the
approval of the holder of the Underlying Loan Documents applicable to the
Ontario Warehouse (as set forth on Exhibit G attached hereto).
2. LEASE AMENDMENTS.
2.1 Upon the entry of a Final Order by the Bankruptcy
Court as more fully set forth in Section 6.5 below confirming the Plan of
Reorganization for the 00xx Xxxxxx Headquarters, but immediately prior to the
conveyance of the 75th Avenue Headquarters to Headquarters Newco as provided in
Section 1.1 above, Seller shall cause Seventy-Fifth Avenue Associates Limited
Partnership to execute and deliver an amendment to the current lease(s) between
Seventy-Fifth Avenue Associates Limited Partnership and Dart Group Corporation
as set forth in Exhibit H attached hereto and incorporated herein. Unless the
need for such consent is superseded by the Plan of Reorganization and Final
Order, said lease amendment shall be subject to the consent of the holder of
the applicable Underlying Loan Documents.
2.2 Upon the entry of a Final Order by the Bankruptcy
Court as more fully set forth in Section 6.5 below confirming the Plan of
Reorganization for the 75th Avenue Wooded Lot, but immediately prior to the
conveyance of the 00xx Xxxxxx Wooded Lot to Wooded Lot Newco as provided in
Section 1.2 above, Seller shall cause Seventy-Fifth Avenue Associates Limited
Partnership to execute and deliver an amendment to the current lease(s) between
Seventy-Fifth Avenue Associates Limited Partnership and Dart Group Corporation
as set forth in Exhibit I attached hereto and incorporated herein. Unless the
need for such consent is superseded by the Plan of Reorganization and Final
Order, said lease amendment shall be subject to the consent of the holder of
the applicable Underlying Loan Documents.
2.3 Upon the entry of a Final Order by the Bankruptcy
Court as more fully set forth in Section 6.5 below confirming the
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Plan of Reorganization for the Bridgeview Warehouse, but immediately prior to
the conveyance of the Bridgeview Warehouse to Bridgeview Newco as provided in
Section 1.3 above, Seller shall cause Trak Chicago Limited Partnership I to
execute and deliver an amendment to the current lease(s) between Trak Chicago
Limited Partnership I and Dart Group Corporation and Trak Auto Corporation as
set forth in Exhibit J attached hereto and incorporated herein. Unless the
need for such consent is superseded by the Plan of Reorganization and Final
Order, said lease amendment shall be subject to the consent of the holder of
the applicable Underlying Loan Documents.
2.4 Upon the entry of a Final Order by the Bankruptcy
Court as more fully set forth in Section 6.5 below confirming the Plan of
Reorganization for the Ontario Warehouse, but immediately prior to the
conveyance of the Ontario Warehouse to Ontario Newco as provided in Section 1.4
above, Seller shall cause Combined Properties/Ontario Limited Partnership to
amend the lease(s) between Combined Properties/Ontario Limited Partnership and
Dart Group Corporation and/or Trak Auto Corporation as set forth in Exhibit K.
Unless the need for such consent is superseded by the Plan of Reorganization
and Final Order, said lease amendment shall be subject to the consent of the
holder of the applicable Underlying Loan Documents.
2.5 If "Pennsy Warehouse I" (as defined on Exhibit B-1)
is ever conveyed to a Newco as set forth in Section 6.2 below, then immediately
prior to such conveyance, Seller shall cause 0000 Xxxxxx Xxxxx Associates
Limited Partnership to amend the lease between the 0000 Xxxxxx Xxxxx Associates
Limited Partnership and Dart Group Corporation and/or Trak Auto Corporation as
set forth in Exhibit L. Said lease amendment shall be subject to the consent
of the holder of the applicable Underlying Loan Documents.
2.6 Seller releases and waives, and, to the extent he
controls the same, shall cause CP Entities Limited Partnership and any other
entity which may own an interest in any Partnership (to the extent Seller
controls the same, CP Entities Limited Partnership any other such entity being
hereinafter referred to as an "RSH Controlled Entity," it being understood that
Xxxxxxx X. Xxxx disputes the existence of the RSH Controlled Entities) to
release and waive, any right to consent to any lease amendment under this
Section 2 or under Section 6.2 below, and any claim of breach of fiduciary duty
or other claim against Purchaser or a Newco in connection therewith.
3. PAYMENT AND PLEDGE OF PROSPECTIVE ECONOMIC BENEFITS.
3.1 Seller covenants to deliver to Purchaser all cash
flow from operations which Seller may hereafter derive from his Undisputed
Interests in the Partnerships (the "Prospective Economic Benefits"), but Seller
retains his rights to receive
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proceeds from capital transactions and the return of his capital accounts
(until such time as the applicable Undisputed Economic Interests are assigned
under this Agreement). Seller further covenants to deliver to each Partnership
a notice in the form attached hereto as Exhibit M notifying each recipient to
make payments of the Prospective Economic Benefits directly to Purchaser or its
designees from time to time.
3.2 In addition, Seller hereby pledges to Purchaser a
present security interest in the Prospective Economic Benefits, the Remainder
Entity Interests (hereinafter defined), the Undisputed Interests and Undisputed
Economic Interests as set forth in the applicable Uniform Commercial Code; such
interest is given to secure the performance of Seller's obligations under this
Agreement to convey ownership and/or the economic and other benefits of
ownership, both before and after Closing(s) hereunder, and to secure the
repayment of the $27.4 Million Note, the $37 Million Note and the $11.6 Million
Note (each as defined in the Settlement Agreement (as hereinafter defined)),
and is therefore coupled with an interest and irrevocable. To further evidence
such security interest, Seller shall simultaneously with the execution of this
Agreement enter into the Pledge of Undisputed Interests attached as Exhibit N.
3.3 As part of the assignment of Prospective Economic
Benefits, Seller further covenants that he will not take, or cause any RSH
Controlled Entity to take, any action with respect to the Partnerships from and
after the date hereof without first obtaining the written approval of Purchaser
or its designees; provided further, that Seller will not fail to take any
action with respect to the Partnerships that Purchaser may request from and
after the date hereof; and, provided further, that Seller shall cause the RSH
Controlled Entities to take such action with respect to the Partnerships as
Purchaser may request from and after the date hereof. Without limiting the
foregoing, to the extent Seller remains a general partner of a Partnership with
any control over the management thereof, Seller shall cause that Partnership in
accordance with its respective organizational documents to continue to operate
its business in the ordinary course, including (without limitation)
distributing cash flow and proceeds from capital events to the partners on a
regular basis if and when available. The foregoing covenants are coupled with
an interest and the rights granted to Purchaser thereunder are irrevocable.
3.4 It is intended that the assignment, pledge and
security interest created under Sections 3.1 and 3.2 above and the Pledge of
Undisputed Interests referenced therein are pledges of general intangibles
governed by Section 9-318 of the Uniform Commercial Code, as adopted in any
jurisdiction relevant to this Agreement. However, if and to the extent the
provisions of Sections 3.1 and 3.2 above or such Pledge of Undisputed Interests
would allow any other partner in a Partnership to invoke a right of first offer
or first refusal with respect to the Prospective
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Economic Benefits and such other partner indicates a desire to do so, then,
without further action by the parties hereto, the provisions of Sections 3.1
and 3.2 above and such Pledge of Undisputed Interests shall be suspended, and,
if necessary, null and void, with respect to that Partnership until such time
as such right of first offer or first refusal is inapplicable or waived.
4. PURCHASE AND SALE OF REMAINDER INTERESTS.
4.1 On the Closing Date(s) or as soon thereafter as
all necessary consents of partners have been obtained or made unnecessary by
final order of the Bankruptcy Court or any other court having jurisdiction,
Seller shall sell, and Purchaser shall purchase, all of the Undisputed
Interests in the Partnerships except the Interim Partnership Interests (as
hereinafter defined), and all of the economic and other beneficial interests
appurtenant thereto. All necessary partners' consents for Seventy-Fifth Avenue
Associates Limited Partnership are deemed to have been given by this Agreement.
(The Undisputed Interests so acquired, less the Interim Partnership Interests,
are hereinafter referred to as the "Remainder Partnership Interests". Seller's
economic and other beneficial interests in the Partnerships (the "Economic
Interests"), less the Interim Economic Interests (as hereinafter defined), are
hereinafter referred to as the "Remainder Economic Interests.")
4.2 Notwithstanding Section 4.1 above to the contrary,
if and to the extent Section 4.1 or the implementation of its provisions would
give rise to a right of first offer or right of first refusal on the part of
any third party who desires to exercise that right, then Section 4.1 shall,
without further action by the parties, be automatically suspended or null and
void with respect to the Remainder Partnership Interests and/or Remainder
Economic Interests to which the third party desires to exercise such right.
Seller hereby gives his consent to the conveyances set forth in Section 4.1 and
waives all rights of first offer or first refusal he may have with respect
thereto. To the extent he has the power and authority to do so, Seller hereby
causes each Partnership and each RSH Controlled Entity to consent to the
conveyances set forth in Section 4.1 and to waive all rights of first offer or
first refusal they may have with respect thereto.
5. CONSIDERATION.
5.1 The consideration payable by Purchaser to each
Newco for the admission of Purchaser or its designee to a Newco shall be one
percent (1%) of each Property's value (as determined by the current real estate
tax assessment). Such consideration shall be paid immediately following the
recording of the special warranty deed (for Properties located in Maryland and
Illinois),
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or the warranty deed (for the Ontario Warehouse), as the case may be.
5.2 The consideration for (a) the payment and pledge
of the Prospective Economic Benefits, and (b) the conveyance to Purchaser of
the Interim Partnership Interests (hereinafter defined) and Interim Economic
Interests (hereinafter defined) is the settlement of various claims which the
parties have against each other with respect to various stock options,
employment agreements, real estate transactions and related matters, all as
more fully set forth in a separate Settlement Agreement of even or approximate
date herewith between Seller and Purchaser (the "Settlement Agreement") and in
a Real Estate Master Agreement of even or approximate date herewith among
Seller, Purchaser and Xxxxx Xxxxxx Real Estate Company (the "Real Estate Master
Agreement").
5.3 Subject to such adjustment as may be provided for
elsewhere in this Agreement, the consideration to be paid for the conveyance to
Purchaser of the Remainder Partnership Interests and the Remainder Economic
Interests is the sum of $18,873,334.00, subject to reduction as set forth in
the Real Estate Master Agreement and/or subject to reduction on a
dollar-for-dollar basis for any proceeds of capital transactions received by
Seller or any RSH Controlled Entity, which shall be allocated as follows for
purposes of this Agreement (the "Allocation") and which shall be paid to Seller
as provided in Section 10 hereof:
0000 Xxxxxx Xxxxx Associates Limited Partnership (Pennsy Drive
Warehouse I): $1,440,000.00 (subject to reduction as set
forth above);
Seventy-Fifth Avenue Associates Limited Partnership (75th
Avenue Headquarters): $10,000,000.00 (subject to reduction as
set forth above);
Seventy-Fifth Avenue Associates Limited Partnership (Wooded
Lot): $366,667.00 (subject to reduction as set forth above);
Trak Chicago Limited Partnership I (the Bridgeview Warehouse):
$2,800,000.00 (subject to reduction as set forth above); and
Combined Properties/Ontario Limited Partnership (the Ontario
Warehouse): $4,266,667.00 (subject to reduction as set forth
above).
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6. FUTURE COOPERATION.
6.1 Seller, at Purchaser's sole cost and expense,
shall reasonably cooperate and, to the extent within Seller's control, shall
cause each Partnership and each RSH Controlled Entity to reasonably cooperate,
in any examinations, investigations and inquiries and join in any and all
applications for licenses, permits and consents with respect to the Properties
which Purchaser applies for in its own name, in the name of any Newco, or on
behalf of the Properties if and when reasonably requested to do so by
Purchaser.
6.2 If and when Seller may be legally capable of
causing 0000 Xxxxxx Xxxxx Associates Limited Partnership to convey fee title to
Pennsy Warehouse I, Seller shall promptly so inform Purchaser, shall join with
Purchaser in creating new limited partnerships or limited liability companies
(in Purchaser's sole and absolute discretion) substantially similar in form and
substance to the other Newcos created hereunder, and shall cause said
Partnership to convey its Property to a Newco as a capital contribution. Said
conveyance(s) shall be subject to the approval(s) of the then-holders of any
mortgage loan(s) encumbering said Property.
6.3 Seller hereby covenants to not cause any of the
Partnerships, or to the extent Seller can prevent the same, allow a third party
to cause any of the Partnerships, to amend, revise, modify, terminate, extend,
refinance or otherwise affect the Underlying Loan Documents relating to the
Properties (as more fully set forth on Exhibit G) unless such amendment,
revision, modification, termination, extension or refinancing has been approved
by the tenant of such Property in accordance with the terms of the applicable
lease.
6.4 On the date of this Agreement, Combined Properties
Incorporated ("CPI") is in bankruptcy under Chapter 11 of the U.S. Bankruptcy
Code in proceedings pending in the Bankruptcy Court. Seller shall be solely
responsible for ensuring, at his own expense and as promptly as possible, that
(a) CPI shall no longer be subject to any bankruptcy proceedings or the
Bankruptcy Court shall have approved or authorized the termination of all
management contracts between CPI and the Partnerships or any other party with
respect to the Properties to the extent, if any, that such approval or
authorization is required, and (b) the approval of the mortgagees have been
obtained, if necessary, to the termination of such management contracts,
subject to the terms of Section 6.6 below. Seller further agrees to use
diligent efforts to do so and to cause CPI to cooperate in Seller's efforts.
Until such time as such management contracts with CPI are terminated, (i)
Seller shall pay any and all management and other fees payable to CPI in
connection with the Property, (ii) Seller shall promptly reimburse Purchaser,
Trak Auto Corporation, any Newco and/or any Partnership in which Purchaser or
its designee is a general or
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limited partner for any and all management and other fees they pay to CPI,
together with interest as set forth below, and (iii) to the extent any
reimbursement is still not paid on the earlier of the Closing Date or the date
the Allocation is payable to Seller pursuant to the terms of the Real Estate
Master Agreement, the Allocation shall be reduced by (A) any management or
other fee paid from and after the date hereof by Purchaser or Trak Auto
Corporation to CPI, and/or (B) Purchaser's or Purchaser's designee's pro rata
share of any management or other fee paid by any Newco or Partnership to CPI if
Purchaser or Purchaser's designee is a member of the Newco or a general or
limited partner in such Partnership, in each case together with interest
thereon as set forth below. All payments under foregoing clauses (ii) and
(iii) under this Section shall bear interest thereon from the date the
underlying payment was made to CPI at the prime rate announced from time to
time by Citibank, N.A. (or its successors) plus two percent (2%) per annum.
Purchaser acknowledges that it shall cooperate with Seller, at Seller's sole
cost and expense, to implement the provisions of this Section 6.4. Seller
releases and waives and shall cause each RSH Controlled Entity to release and
waive, any right to consent to any contract termination under this Section 6.4
and any claim of breach of fiduciary duty or other claim against Purchaser, any
Partnership or a Newco in connection therewith.
6.5 On the date of this Agreement each Partnership
(except 0000 Xxxxxx Xxxxx Associates Limited Partnership) is in bankruptcy
under Chapter 11 of the U.S. Bankruptcy Code in proceedings pending in the
Bankruptcy Court. Seller shall use his best efforts to ensure, at his own
expense, that all Bankruptcy Court approvals are obtained for the transactions
described herein, including, but not limited to, the conveyance of the
Properties and the lease amendments described herein. Seller further agrees to
use diligent efforts to do so. The plan of reorganization ("Plan of
Reorganization") filed with the Bankruptcy Court for each Partnership or
Property shall include, at a minimum: (a) the conveyance of the applicable
Property to the applicable Newco; (b) the lease amendments described herein
with respect to each Property; and (c) a negation or overriding of those
portions of the partnerships agreements of Seventy-Fifth Avenue Associates
Limited Partnership, 75th Avenue Tier II Limited Partnership, Trak Chicago
Limited Partnership I, and Trak Chicago Tier II Limited Partnership, and any
other agreement that may also address the rights of Xxxxxx X. Xxxx and/or Xxxxx
X. Xxxx to approve or disapprove of any sale, refinancing, joint venturing or
other action of any sort with respect to a Property. No Plan of Reorganization
shall be filed without the consent of Purchaser, which consent shall not be
unreasonably withheld or delayed as long as such proposed plan includes items
(a), (b) and (c) above. Notwithstanding the foregoing, for purposes of
Sections 1 and 2 of this Agreement, the Plan of Reorganization for a Property
or a Partnership means a plan of reorganization that includes only items (a)
and (b) above. Seller shall promptly and diligently take whatever action may
be necessary or
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desirable in order to implement any Final Order of the Bankruptcy Court with
respect to any Property/Partnership. Purchaser may waive the foregoing
conditions precedent with respect to any Newco, Partnership, Undisputed
Interests or Undisputed Economic Interests.
6.6 Seller agrees to cooperate with Purchaser, at
Seller's own cost and expense, and to cause each RSH Controlled Entity to
cooperate with Purchaser, at Seller's own cost and expense, in obtaining the
approval of each lender under the Underlying Loan Documents to (a) the
aforesaid lease amendments, (b) the payment and pledge of the Prospective
Economic Benefits, (c) the conveyance of the Undisputed Interests and the
Undisputed Economic Interests, (d) the termination of the management contracts
between the Partnerships and CPI, and (e) all other matters contemplated by
this Agreement. Notwithstanding the foregoing to the contrary, Purchaser shall
be responsible for paying any fees and expenses imposed by any lender in
connection with obtaining such approval.
6.7 Seller hereby approves and waives any right of
first offer or first refusal, and Seller hereby causes the RSH Controlled
Entities to approve and waive any right of first offer or first refusal, with
respect to any acquisition by Purchaser or its parent, subsidiary or affiliated
entities of any of Xxxxxxx X. Xxxx'x claimed interests (or any appurtenances
thereto) in any of the Partnerships or in any RSH Controlled Entity.
6.8 (a) If and when Seller is legally capable of
doing so, Seller shall sell, and Purchaser shall purchase, a one percent (1%)
interest (the "Interim Partnership Interest") as a general partner in each
Partnership such that Purchaser shall be the sole general partner in each such
Partnership (except for 0000 Xxxxxx Xxxxx Associates Limited Partnership, in
which Xxxxxxx X. Xxxx may also be a general partner in addition to Purchaser).
Each such conveyance shall, however, be postponed, to the extent necessary,
until such time as all such consents applicable to that particular conveyance
are obtained. Notwithstanding the foregoing sentences, however, Purchaser may,
in its sole and absolute discretion, elect to not acquire, or to defer its
acquisition of, the Interim Partnership Interests in Seventy-Fifth Avenue
Associates Limited Partnership and/or in Trak Chicago Limited Partnership I;
Purchaser's election(s) under this sentence may be made at any time and the
length of any deferral(s) shall be in Purchaser's sole and absolute discretion.
Seller hereby grants his own consent to such conveyances and causes each RSH
Controlled Entity to give its consent to such conveyances.
6.9 As and when conveyances of the Interim Partnership
Interests occur, Seller shall sell, and Purchaser shall purchase, all of the
economic and other beneficial interests appurtenant to the Interim Partnership
Interests being then conveyed to Purchaser (the "Interim Economic Interests").
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Purchaser shall thereupon become an assignee with respect to the Interim
Economic Interests. If Purchaser has elected to not acquire, or to defer the
acquisition of, any Interim Partnership Interest as set forth in Section 6.8
above, then the assignment of the Interim Economic Interest appurtenant thereto
shall nevertheless occur as and when the conveyances of the related Interim
Partnership Interests would otherwise have occurred. The parties acknowledge
that the conveyance of the Interim Economic Interests (and, as set forth
elsewhere, the conveyance of the Remainder Economic Interests) may be redundant
to the conveyance of the Interim Partnership Interests (and the conveyance of
the Remainder Partnership Interests), and somewhat redundant to the payment and
pledge of the Prospective Economic Benefits, but agree that they are separate
conveyances so that the transfer of the Interim Economic Interests and
Remainder Economic Interests shall occur even if the transfer of the
Prospective Economic Benefits or the Interim Partnership Interests and the
Remainder Partnership Interests do not occur or are not effective for any
reason.
6.10 Seller and/or Xxxxxx X. Xxxx and/or Xxxxx X. Xxxx,
or an entity owned by one or more of them, is the owner of the approximately
three (3) acre tract ("Parcel D") located between the 75th Avenue Headquarters
and the Wooded Lot. Parcel D was leased by Dart Drug Stores, Inc. pursuant to
that certain Lease Amendment dated December 18, 1984 between Combined
Properties Limited Partnership (as agent for the unnamed owner-landlord) and
Dart Drug Stores, Inc. (as the tenant). Seller grants Purchaser the option to
acquire all of Seller's right, title and interest in and to Parcel D at any
time for a purchase price of One Dollar ($1.00) to be paid at the time of
conveyance. If Seller owns a fee interest in Parcel D or has the power and
authority to cause any entity that owns a fee interest in Parcel D to convey
its fee title, Seller shall convey his fee interest, or cause such entity to
convey its fee interest, to Purchaser by special warranty deed and otherwise in
the manner set forth in this Agreement for conveyances of the Properties. If
Seller owns only an interest in an entity that owns fee title to Parcel D and
Seller cannot cause that entity to convey fee title, then Seller shall convey
his interest to Purchaser by assignment of partnership interests, membership
interests or stock, as the case may be, in the manner set forth in this
Agreement for the assignment of the Partnership Interests. If Purchaser
exercises its option under this Section, closing of the option herein granted
shall occur at such time and place as Purchaser shall elect in its reasonable
discretion.
7. SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller represents and warrants the following to Purchaser as
of the date hereof, notwithstanding any independent investigation which
Purchaser may have conducted (but subject to the last paragraph of this
Section):
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7.1 Each Partnership is duly organized, validly
existing and in good standing in the jurisdiction of its formation (as shown on
Exhibit A-1), and is authorized to do business and in good standing in the
jurisdiction in which its Property is located (as shown on Exhibit B). The
partnership agreements and certificates of limited partnership, all as amended
to the date hereof, are set forth on Exhibit A-3 and true and complete copies
thereof have been delivered to Purchaser. Seller is the sole general partner
of Seventy-Fifth Avenue Associates Limited Partnership and of Trak Chicago
Limited Partnership I.
7.2 Except as set forth in the following sentence,
each Partnership is the owner of legal and beneficial title to its Property and
is lawfully seized of its Property as of the date of this Agreement. Legal
title to the Bridgeview Warehouse is owned by American National Bank and Trust
Company of Chicago under an unrecorded trust agreement #62787 dated November 8,
1984, and Trak Chicago Limited Partnership I is the sole beneficiary of that
trust; Seller has delivered a true, correct and complete copy of said trust
agreement to Purchaser. Except for the Underlying Loan Documents and the
matters shown on the Schedules B-2 attached to the title insurance commitments
listed on Exhibit O, the Properties are free and clear of any and all liens,
encumbrances, pledges, security interests or adverse claims of any kind or
character, and there are no claims which could result in a lien or encumbrance
of any kind thereon.
7.3 The Property attributed to it on Exhibit B is the
sole asset of each Partnership, no Partnership is qualified to do business in
any jurisdiction other than the State in which its Property is located, and no
Partnership does business anywhere other than said jurisdiction.
7.4 (a) Seller is, directly or indirectly, the owner
of legal and beneficial title to the Prospective Economic Benefits, the
Undisputed Interests and the Undisputed Economic Interests, is lawfully seized
of the Prospective Economic Benefits, the Undisputed Interests and the
Undisputed Economic Interests as of the date of this Agreement, and will
continue to be so seized with respect to the Undisputed Interests and the
Undisputed Economic Interests until each such Interest is conveyed under this
Agreement.
(b) All of the Prospective Economic Benefits, the
Interim Partnership Interests and Interim Economic Interests are free and clear
of all liens, encumbrances, pledges, hypothecations, and other claims and
security interests of all types.
(c) On the date hereof and on the applicable
Closing Date(s) the Remainder Partnership Interests and the Remainder Economic
Interests are and will be free and clear of
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all liens, encumbrances, pledges, hypothecations and other claims and security
interests of all types.
(d) Seller has the power and authority to pledge,
convey or cause the conveyance of the Prospective Economic Benefits, the
Undisputed Interests and the Undisputed Economic Interests, and fee title to
the 75th Avenue Headquarters, the Wooded Lot and the Bridgeview Warehouse.
7.5 Except as set forth in the Underlying Loan
Documents: Seller is fully authorized and empowered to execute and deliver
this Agreement and all documents to be executed by Seller hereunder; the
execution and performance hereunder by Seller and the RSH Controlled Entities
will not constitute a breach or default under, or conflict with, any agreement
to which Seller or any RSH Controlled Entities are parties or by which any of
them are bound, or under any law, regulation, court order or similar constraint
applicable to Seller or the RSH Controlled Entities; Seller and each RSH
Controlled Entity has complete and unencumbered right and power to consummate
the transactions provided for herein without the approval, consent, order or
authorization of, or designation, registration or filing with, any person or
entity or any governmental or quasi-governmental authority except as set forth
elsewhere in this Agreement with respect to bankruptcy; and this Agreement is
binding on and enforceable against Seller in accordance with its terms.
Without limiting the foregoing, the transactions contemplated by this Agreement
will not result in any claim against Purchaser or its parent, subsidiary or
affiliated entities except for any claim which may be filed by Xxxxxxx X. Xxxx;
Seller believes any such claim to be without merit and will vigorously defend
against any such claim at Seller's own expense and/or cooperate at Seller's own
expense with Purchaser in Purchaser's defense of any such claim, subject to any
different allocation of expense under that certain Litigation Cooperation
Agreement of even or approximate date herewith between Seller and Purchaser.
7.6 The Partnerships have no debts or liabilities
other than the Underlying Loan Documents, their guaranties of Seller's and
Xxxxxxx X. Xxxx'x obligations as indemnitors of Xxxxxx, Xxxxx and Xxxxxx Xxxx
under that certain Indemnification Agreement dated as of July 31, 1994, and
those incurred prior to the date hereof in the ordinary course of business,
which latter debts and liabilities shall be paid solely by Seller even if
invoiced after the date hereof. Except as noted on Exhibit P, the loans
evidenced by the Underlying Loan Documents and all of such other obligations
are in good standing and no situation exists or, with the passage of time or
the giving of notice (or both) could exist, which would constitute a default
thereunder or cause the acceleration thereof. Seller has delivered to
Purchaser true, accurate and complete copies of the Underlying Loan Documents
and of said Indemnification Agreement.
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7.7 Except as shown on Exhibit P, there are no
defaults (or situations which, with the passage of time or the giving of notice
(or both), could constitute defaults), claims, actions, litigation or
proceedings, actual, pending or to the best of Seller's knowledge, threatened,
and there are no outstanding judgments or rulings, by any organization, entity,
person, individual or governmental agency which would affect the Prospective
Economic Benefits, the Undisputed Interests, the Undisputed Economic Interests
or, to the best of Seller's actual knowledge, the Properties or any part
thereof.
7.8 Except with respect to the tax returns for
calendar year 1994, each Partnership has filed all tax returns and paid all
taxes, fees, special assessments or other governmental impositions. No
assessment, special assessment or tax shall be permitted to become a lien on
the Undisputed Interests, or the Undisputed Economic Interests prior to the
applicable conveyances thereof under this Agreement.
7.9 Subject to the terms of the leases between the
Partnerships and Purchaser and its affiliates, each Partnership has made full
payment for the installation or the consumption of all utilities for which the
Partnership is required to make payment (or for which Seller or any other RSH
Controlled Entity is required to make payment with respect to the Undisputed
Interests and Undisputed Economic Interests to be conveyed by it).
7.10 To the best of Seller's actual knowledge, each
Partnership has complied with all applicable laws, ordinances, regulations,
statutes, codes, rules and restrictions relating to its Property and every part
thereof, and no permit, agreement, lease, waiver, contract, or certificate of
occupancy will be terminated, revoked or forfeited by reason of this Agreement
or the consummation of the transactions set forth herein.
7.11 Seller and each RSH Controlled Entity (or their
respective predecessors-in-interest) has made all capital contributions to the
Partnerships required of it and has received all distributions to which it is
entitled, and Seller and the RSH Controlled Entities have not made any loan to
or otherwise advanced any money to or on behalf of any Partnership.
7.12 All leasing commissions for the Properties have
been paid.
7.13 The Partnerships have no employees.
7.14 Except for the Underlying Loan Documents, any
leases with Purchaser or its affiliates listed on Exhibit Q attached hereto and
incorporated herein, the guaranties set forth in Section 7.6 above, and the
management contracts with CPI, there are no leases, contracts or agreements
with or binding the Partnerships.
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7.15 All bills and claims for labor performed and
materials furnished to the Partnerships or to CPI for the benefit of the
Properties for all periods prior to the date hereof have been paid in full, and
there are no mechanics' liens or materialmen's liens, whether or not perfected,
on or affecting any portion of the Properties as a result of any labor
performed or materials provided to the Partnerships or to CPI. Seller shall
provide Purchaser's title insurer with such affidavits and other evidence as it
may reasonably require so as to enable Purchaser's title insurer to furnish the
Partnerships with title policies without exception for mechanics' or
materialmen's liens arising from labor performed or materials furnished to the
Partnerships or to CPI.
7.16 Seller's United States taxpayer identification
number and address are set forth following his signature on this Agreement,
Seller is not a "foreign person" as defined in Section 1445 of the Internal
Revenue Code (the "Code"), and Seller will execute and deliver and cause each
RSH Controlled Entity (if applicable) and/or Partnership to execute and deliver
an affidavit to the same effect. In the event any Seller, RSH Controlled
Entity (if applicable) or Partnership is a "foreign person" (as defined above)
or does not execute and deliver the foregoing affidavit, Purchaser may pay such
sums directly from the Allocation and execute such notices, certificates,
letters or other instruments in its own behalf or as attorney-in-fact for that
Seller, RSH Controlled Entity (if applicable) or Partnership as may be
necessary in order to comply with the withholding provisions of Section 1445 of
the Code. Under penalty of perjury, Seller certifies that the taxpayer
identification number provided for him beneath his signature line is correct
for purposes of Section 6045 of the Code.
7.17 Except as disclosed in the Complaint filed in the
Pennsy Warehouse Lawsuit (as defined in Exhibit P), to the best of Seller's
actual knowledge the Partnerships, Seller and each RSH Controlled Entity have
never used, processed, released, discharged, generated, stored or disposed of
any Hazardous Substance (as hereinafter defined) on, under or about any
Property or from any Property to any other location, and no Hazardous Substance
has been used, processed, released, discharged, generated, stored or disposed
of on any Property by any other person or entity. As used in this Agreement,
"Hazardous Substance" shall mean and include all hazardous or toxic substances,
wastes or materials, any pollutants or contaminants (including, without
limitation, asbestos, PCBs, petroleum products and by-products, and raw
materials which include hazardous constituents), or any other similar
substances or materials which are included under or regulated by any local,
state or federal law, rule or regulation pertaining to environmental
regulation, contamination, clean-up or disclosure, including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Superfund Amendments and Reauthorization Act of
1986, the Resource
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Conversation and Recovery Act, the Toxic Substances Control Act, and the
Federal Insecticide, Fungicide and Rodenticide Act, as any of the foregoing has
heretofore been or is hereafter amended.
7.18 To the best of Seller's actual knowledge, the
Properties are not affected by any lease, concession, license, permit,
agreement, opinion, statute or regulation of any kind (other than zoning
ordinances) which limits the use or development of the Properties.
7.19 To the best of Seller's actual knowledge, each
Property has full and free access to and from public highways, streets or
roads, and there is no pending or threatened governmental or private proceeding
which would impair or result in the termination of such access.
7.20 To the best of Seller's actual knowledge: neither
the whole nor any portion of any Property is currently subject to temporary
requisition or use by any governmental authority or has been condemned or taken
in any proceeding similar to a condemnation proceeding; there is not now
pending any condemnation, requisition or similar proceeding affecting any
Property or any portion thereof; and Seller and the RSH Controlled Entities
have received no notice and have no actual knowledge that any such proceeding
is contemplated.
7.21 To the best of Seller's actual knowledge, there is
no pending or threatened designation or application for designation with any
Federal, local or governmental institution whereby any Property would be
declared a historic structure or the area in which any Property is located
declared a historic district so as to in any way restrict or impede the right
to alter or demolish the Improvements.
7.22 To the best of Seller's actual knowledge, the
Properties are served by public water, storm sewer and sanitary sewer
facilities and by telephone, gas, steam and electric services of public
utilities, all provided directly from public ways, in good working order, in
quantities adequate to service the Properties, and in compliance with all legal
requirements.
7.23 To the best of Seller's actual knowledge, each
Property's zoning classification permits the current use of that Property.
Seller has received no notice of and has no actual knowledge of any
contemplated change with respect to the zoning of any Property, the
availability of utility service to the Properties, or any other matter which
would materially adversely affect any Property.
7.24 To the best of Seller's actual knowledge, no
portion of the Properties lies within the 100-year flood plain or any area
categorized as flood prone by the Federal Emergency Management Agency.
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In the event Purchaser becomes aware of a breach of any warranty or
representation of Seller prior to any conveyance under this Agreement and
elects to close that conveyance notwithstanding such breach, Purchaser will be
deemed to have waived such breach for all purposes with respect to that
conveyance. With respect to any alleged breach of Seller's warranties and
representations of which Purchaser becomes actually aware only after a
conveyance, Purchaser agrees that prior to the exercise of any right or remedy
with respect to such alleged breach which has survived that conveyance pursuant
to Section 19 of this Agreement, Purchaser will give Seller written notice of
such alleged breach and will give Seller a reasonable time in light of the
circumstances to cure the condition, circumstance or event which gave rise to
such breach, provided Seller will at all times diligently and in good faith
attempt to cure such breach or provide adequate protection to Purchaser to
protect or indemnify it from all damages and adverse effects of such breach.
If Seller cures the breach or otherwise provides such protection, then such
breach will be deemed cured and waived for all purposes. Purchaser
acknowledges that its parent, subsidiary or affiliated entities are lessees of
the Properties (subject to the Pennsy Warehouse Lawsuit) and that the
representations and warranties set forth above with respect to the Properties
do not amend or otherwise affect the obligations of said parent, subsidiary or
affiliated entities as tenants or the Partnerships as landlords under said
leases.
8. TITLE.
8.1 On the date hereof and again on the Closing
Date(s), title to the Undisputed Interests and the Undisputed Economic
Interests must be held by Seller and must be conveyed free of liens,
encumbrances, pledges, hypothecations and other claims and security interests
of any type except as shown on Exhibit O. On the date hereof good and
marketable title to the Properties must be held by the Partnerships in the
cases of Pennsy Drive Warehouse I, the 75th Avenue Headquarters, the Wooded Lot
and the Ontario Warehouse, or in the case of the Bridgeview Warehouse, by
American National Bank and Trust Company of Chicago as trustee for Trak Chicago
Limited Partnership I, as applicable, and must be free of liens, encumbrances,
pledges, hypothecations and other claims and security interests of any type
except as shown on Exhibit O. Each Partnership must hold an owner's title
insurance policy for its Property or obtain one as a condition to the execution
and delivery of this Agreement.
8.2 If title is not in the condition described in the
preceding Section, Seller shall correct the title defects at his own expense
and, to the extent Seller fails to do so, any cost incurred by Purchaser in
curing the title defects may be offset against the amount to be paid to that
grantor under Section 5.1 and/or against the Allocation for Undisputed
Interests/Undisputed Economic Interests hereafter conveyed.
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8.3 Seller agrees that in all events the distribution
of the amount to be paid under Section 5.1 and the Allocation for any Property
or Remainder Partnership Interests/Remainder Economic Interests is solely his
own responsibility and that Purchaser shall have no liability or obligation
with respect thereto, even though Purchaser may be the general partner of the
Partnership to which an Allocation is applicable.
9. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. The
obligation of Purchaser to pay the Allocation, acquire the Remainder Interests
and Remainder Economic Interests and to perform the other covenants and
obligations to be performed by it on the Closing Date(s) shall be subject to
the condition that all of the terms and conditions of the Real Estate Master
Agreement shall be satisfied and Seller shall be entitled to the payment of the
Allocation as more particularly set forth therein, and to the satisfaction of
all other conditions set forth in this Agreement (all or any of which may be
waived, in whole or in part, by notice from Purchaser to Seller).
10. CLOSING DATE.
10.1 The closing(s) ("Closing(s)") of the conveyance of
the Remainder Partnership Interests and the Remainder Economic Interests shall
occur simultaneously with the sale of the last of the five (5) properties owned
on or immediately prior to the date hereof by CM/XX Xxxxxx Xxxxxx Joint Venture
(Xxxxxx Xxxxxx Plaza in Xxxxxxxxxx County, Maryland), CM/CP Bull Run Joint
Venture (Bull Run Plaza in Prince Xxxxxxx County, Virginia), CM/CP Greenbriar
Office Joint Venture (Greenbriar Corporate Center in Fairfax County, Virginia),
CM/CP Greenbriar Retail Joint Venture (Greenbriar Town Center in Fairfax
County, Virginia) and CM/XX Xxxxxxxx Joint Venture (Greenway Shopping Center in
Prince George's County, Maryland) (each, a "Xxxxx Xxxxxx Property"), but not
later than the date which is five (5) years after the date of this Agreement;
provided, however, in the event the Final Order of the Bankruptcy Court
approves a Plan of Reorganization for any Partnership and/or Property that
includes the conveyance of the Remainder Partnership Interests and the
Remainder Economic Interests, then in such event the Closing shall occur on the
effective date of such Plan of Reorganization for such Partnership/Property.
The Allocation under this Agreement shall be offset against any net proceeds
allocated to Xxxxx Xxxxxx Real Estate Company (or its successors or assigns)
from the sale of the Xxxxx Xxxxxx Properties to the extent any such sale occurs
or to the repayment of the $27.4 Million Note, the $37 Million Note and the
$11.6 Million Note or offset against Seller's covenant to pay Purchaser $2
million, all as more particularly set forth in the Settlement Agreement; the
foregoing right of offset is coupled with an interest and the rights granted to
Seller under this sentence are irrevocable.
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10.2 (a) Notwithstanding Section 10.1 above to the
contrary, if the Xxxxx Xxxxxx Properties are not sold on or before the date
which is five (5) years after the date of this Agreement, then Closing shall
nevertheless occur on the date which is five (5) years after the date of this
Agreement, subject to the terms and conditions of the Real Estate Master
Agreement and to the following subparagraphs of this section.
(b) If all of the Closings (except for any
closing which Purchaser has elected to waive) have not occurred on or before
the date which is five (5) years after the date of this Agreement (or such
later date to which Purchaser may have deferred a particular Closing) and: (i)
the reason for any such failure is that a court of competent jurisdiction has
issued a final, non-appealable order declaring either (A) that Xxxxxxx X. Xxxx
owns a Remainder Partnership Interest or a Remainder Economic Interest to be
conveyed or (B) that Xxxxxxx X. Xxxx is a partner in a particular Partnership
and it is indisputable that Xxxxxxx X. Xxxx, as such a partner, can either
veto the conveyance envisioned under this Agreement or would have a right of
first offer or right of first refusal with respect to that conveyance; and (ii)
there are still balances in the Retained Distributions and/or the C-M Escrow
Account under the Real Estate Master Agreement sufficient to give Purchaser the
value ascribed to the unmarketable Remainder Partnership Interest and/or
Remainder Economic Interest (as more fully set forth in the Real Estate Master
Agreement); then no Closing shall occur under this Agreement with respect to
the unmarketable Remainder Partnership Interest and/or Remainder Economic
Interest, this Agreement shall be terminated with respect to said unmarketable
Interests only, and Purchaser shall be entitled to the appropriate amount of
the Retained Distributions and/or the C-M Escrow Account under the Real Estate
Master Agreement.
(c) If all of the Closings (except for any
closing which Purchaser has elected to waive) have not occurred on or before
the date which is five (5) years after the date of this Agreement (or such
later date to which Purchaser may have deferred a particular Closing) and: (i)
the reason for any such failure is that a court of competent jurisdiction has
issued a final, non-appealable order declaring either (A) that Xxxxxxx X. Xxxx
owns a Remainder Partnership Interest or a Remainder Economic Interest to be
conveyed or (B) that Xxxxxxx X. Xxxx is a partner in a particular Partnership
and it is indisputable that Xxxxxxx X. Xxxx, as such a partner, can either
veto the conveyance envisioned under this Agreement or would have a right of
first offer or right of first refusal with respect to that conveyance; and (ii)
there is an insufficient balance in the Retained Distributions and/or the C-M
Escrow Account under the Real Estate Master Agreement to give Purchaser the
value ascribed to the unmarketable Remainder Partnership Interest and/or
Remainder Economic Interest (as more fully set forth in the Real Estate Master
Agreement); then no Closing shall occur under this Agreement with respect to
the unmarketable Remainder Partnership
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Interest and/or Remainder Economic Interest and Purchaser shall be entitled to
all of its rights and remedies against Seller pursuant to Section 13 below (but
subject to Sections 3.4 and 4.2).
(d) If all of the Closings (except for any
closing which Purchaser has elected to waive) have not occurred on or before
the date which is five (5) years after the date of this Agreement (or such
later date to which Purchaser may have deferred a particular Closing) and the
reason for any such failure is anything other than a reason set forth in
preceding subsections (b) and (c), then Purchaser shall have the option, in its
sole and absolute discretion, to either (i) extend the date of Closing to a
date of its choosing or (ii) no Closing shall occur under this Agreement with
respect to the unmarketable Remainder Partnership Interest and/or Remainder
Economic Interest and Purchaser shall be entitled to all of its rights and
remedies against Seller pursuant to Section 13 below.
10.3 Notwithstanding Section 10.1 above to the
contrary, the Closing Date with respect to particular Remainder Partnership
Interests/Remainder Economic Interests may be accelerated as provided in the
Real Estate Master Agreement.
10.4 Notwithstanding Section 10.1 above to the
contrary, if a "Revocation Closing" occurs under the Settlement Agreement, then
the Closing Date with respect to all of the Remainder Partnership Interests and
all of the Remainder Economic Interests shall occur on the earlier of (a) the
date so elected by Seller or (b) the Revocation Maturity Date of the $37
Million Note (as defined therein). If the Closing Date is determined under
this Section, then the Allocation under this Agreement shall be offset against
Seller's obligations under the $37 Million Note.
10.5 All Closings hereunder shall occur at 10:00 A.M.,
Washington, D.C. time, at the offices of Xxxxx, Day, Xxxxxx & Xxxxx, 0000 X
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. Each date on which a Closing occurs with
respect to any Remainder Partnership Interests/Remainder Economic Interest
shall be the "Closing Date" with respect thereto.
11. PRORATIONS OF EXPENSES; COSTS.
11.1 Recordation and transfer taxes, if any, for the
conveyance of title to Pennsy Warehouse I to 0000 Xxxxxx Xxxxx Associates
Limited Partnership shall be paid by Seller. Seller shall also pay all
expenses of clearing title to any Property. Purchaser shall pay all
recordation and transfer taxes for conveying any Property to a Newco. All
title insurance premiums and other costs for the conveyance of Pennsy Drive
Warehouse I to 0000 Xxxxxx Xxxxx Associates Limited Partnership shall be paid
by Seller. All title insurance premiums and other costs for the conveyances of
Properties to Newcos shall be paid by the
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applicable Newcos. All other title insurance premiums and other costs under
Section 8.1 shall be borne by the Partnership that owns the applicable
Property.
11.2 Purchaser shall not be obligated to continue the
policies or adjust the premiums of any insurance policies on the Properties.
However, if such policies are continued by Purchaser after the date hereof or
after the Closing Date, as the case may be, the premiums therefore shall be
adjusted as of midnight preceding that date.
11.3 Seller and Purchaser shall each bear their own
costs in connection with the transactions described herein, including, but not
limited to the fees and expenses of their respective counsel in connection with
this Agreement and any litigation arising therefrom (except as otherwise set
forth in Section 20.9 below). Notwithstanding the foregoing, Purchaser agrees
to reimburse Seller for costs incurred by Seller in connection with complying
with the provisions of Sections 4.1, 6.8, and 6.9 hereof other than attorney's
fees and expenses; provided, however, any transfer taxes imposed as a result of
the transfers set forth in such Sections shall be paid fifty percent (50%) by
Seller and fifty percent (50%) by Purchaser.
12. CLOSING.
12.1 On the date hereof (or on such later date as the
condition precedent set forth in Section 6.5 above is satisfied, waived or
irrelevant) or upon the conveyance of a Property to a Newco, as applicable, or
on such other date as may be specifically set forth below, Seller shall deliver
to Purchaser, in addition to all other documents or material required by the
terms of this Agreement, the following:
(a) Opinions of Xxxxxxxxxx, Xxxxxx & Xxxxxxx
and/or Xxxxxx & Xxxxxxx, or other comparable counsel to Seller and the RSH
Controlled Entities reasonably acceptable to Purchaser in form and substance as
attached hereto as Exhibit R. (Notwithstanding the parenthetical in the first
sentence of this Section 12.1, all of the opinion letters required by this
subsection are to be delivered to Purchaser simultaneously with the execution
of this Agreement.)
(b) Operating agreements for Headquarters Newco,
Wooded Lot Newco, Bridgeview Newco and Ontario Newco.
(c) Deeds conveying the 75th Avenue Headquarters
(if Purchaser exercises its option with respect thereto), the Wooded Lot (if
Purchaser exercises its option with respect thereto), the Bridgeview Warehouse
(if Purchaser exercises its option with respect thereto) and the Ontario
Warehouse to Headquarters Newco, Wooded Xxx Xxxxx, Xxxxxxxxxx
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Xxxxx and Ontario Newco, respectively. Said deeds shall be the types referred
to in Section 5.1.
(d) A blanket conveyance, xxxx of sale and
assignment conveying the personal property and intangible property relating to
each Property to the applicable Newco.
(e) If Purchaser exercises its option with
respect to the Bridgeview Warehouse, an instruction letter to American National
Bank and Trust Company of Chicago concerning the Bridgeview Warehouse in the
form attached hereto as Exhibit S.
(f) An assignment by Combined Properties/Ontario
Limited Partnership, a Maryland limited partnership, to Combined
Properties/Ontario Limited Partnership, a District of Columbia limited
partnership, of all of said Maryland partnership's right, title and interest in
and to its lease with Trak Auto Corporation for the Ontario Warehouse.
(Notwithstanding the parenthetical in the first sentence of this Section 12.1,
the assignment required by this subsection are to be delivered to Purchaser
simultaneously with the execution of this Agreement.)
(g) Assignments of leases for the 75th Avenue
Headquarters, the Wooded Lot, the Bridgeview Warehouse and the Ontario
Warehouse from Seventy-Fifth Avenue Associates Limited Partnership,
Seventy-Fifth Avenue Associates Limited Partnership, Trak Chicago Limited
Partnership I and Combined Properties/Ontario Limited Partnership,
respectively, to Headquarters Newco, Wooded Lot Newco, Bridgeview Newco and
Ontario Newco, respectively, to the extent that the Newcos have acquired the
Properties affected by said leases.
(h) The Pledge of Undisputed Interests referenced
in Section 3. (Notwithstanding the parenthetical in the first sentence of this
Section 12.1, the Pledge of Undisputed Interests is to be delivered to
Purchaser simultaneously with the execution of this Agreement.)
(i) The direct payment notice referenced in
Section 3.1. (Notwithstanding the parenthetical in the first sentence of this
Section 12.1, the direct payment notice is to be delivered to Purchaser
simultaneously with the execution of this Agreement.)
(j) UCC-1 financing statements evidencing the
encumbrance on the Prospective Economic Benefits, the Undisputed Interests and
the Undisputed Economic Interests created by this Agreement and the Pledge of
Undisputed Interests referenced in Section 3. (Notwithstanding the
parenthetical in the first sentence of this Section 12.1, the financing
statements are to be delivered to Purchaser simultaneously with the execution
of this Agreement.)
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(k) All reports, affidavits and certificates
required by the Code and any other Federal, State or local laws pertaining to
this transaction including (without limitation): a non-foreign affidavit under
Section 1445 of the Code; a California Withholding Exemption Certificate (Form
590) or, if Seller is a non-California resident, a certificate issued by the
California Franchise Tax Board pursuant to California Revenue and Taxation Code
Sections 18805 and 26131 stating either the amount of withholding required from
Seller's proceeds or that Seller is exempt from such withholding requirement;
and a Preliminary Change of Ownership Report for any Property located in
California.
(l) An owner's affidavit (when fee title to a
Property is conveyed to a Newco) in form customarily required by any Newco's
title insurer, and such other affidavits as may be necessary or appropriate for
Purchaser to obtain non-imputation endorsements to its title insurance policies
with respect to matters known to Seller and/or the RSH Controlled Entities, and
such settlement statements, forms and other instruments, in recordable form or
otherwise, as may be reasonably required by Purchaser, its title insurer or the
settlement agent as a condition of acquiring the Properties, the Interim
Partnership Interests/Interim Economic Interests or of Closing.
(m) Such documents as may be necessary or
appropriate under the applicable partnership agreements to give each of 75th
Avenue Tier II Limited Partnership and Trak Chicago Tier II Limited Partnership
no share of profits, losses or other economic benefits or rights arising from
said partnerships' interests in Seventy-Fifth Avenue Associates Limited
Partnership and Trak Chicago Limited Partnership I, respectively, except to the
extent the foregoing would be inconsistent with each such Tier II limited
partnership's negative tax basis capital account in said Partnerships.
(Notwithstanding the parenthetical in the first sentence of this Section 12.1,
the documents to be delivered under this subsection are to be delivered to
Purchaser simultaneously with the execution of this Agreement.)
12.2 At the Closing(s), Seller shall deliver to
Purchaser, in addition to all other documents or material required by the terms
of this Agreement, the following:
(a) Opinions of Xxxxxxxxxx, Xxxxxx & Xxxxxxx
and/or Xxxxxx & Xxxxxxx, or other comparable counsel to Seller and the RSH
Controlled Entities reasonably acceptable to Purchaser: (i) in form and
substance as attached hereto as Exhibit T for the Interim Partnership
Interests/Interim Economic Interests; and (ii) in form and substance as
attached hereto as Exhibit U for the Remainder Partnership Interests/Remainder
Economic Interests.
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(b) For all Undisputed Interests and Undisputed
Economic Interests to be conveyed, assignments in the form attached hereto as
Exhibits V and W.
(c) For all Undisputed Interests which are
conveyed, such amendments to the agreements of limited partnership of the
Partnerships and amendments to each Partnership's certificate of limited
partnership in form suitable for filing in the appropriate records,
implementing and evidencing the addition and/or substitution of Purchaser for
Seller, and the admission of Purchaser as a partner in the Partnership, and
granting all consents, approvals or waivers of rights necessary or appropriate
to accomplish the same, to the extent Seller has power and authority to do the
foregoing.
(d) All reports, affidavits and certificates
required by the Code and any other Federal, State or local laws pertaining to
this transaction.
12.3 On the date hereof and at the Closing(s),
Purchaser shall deliver such instruments, in recordable form or otherwise, as
may be reasonably required by Seller, Purchaser's title insurer, or the
settlement agent as a condition of conveying the Properties to the Newcos, the
Interim Partnership Interests/Interim Economic Interests or of Closing.
12.4 Seller shall file any required State
unincorporated business franchise (or similar) tax returns and a Federal income
tax return for each Partnership for all years through the date the Interim
Partnership Interests therein are conveyed to Purchaser and shall also file all
tax returns that may be outstanding for any prior year(s). If necessary,
Purchaser shall execute any such returns prepared by Seller, but Purchaser
shall not be required to make any investigation into the accuracy or
truthfulness of such returns. Purchaser shall not be deemed to have made any
representation or warranty as to such accuracy or truthfulness, nor have agreed
to any liability for any taxes payable in respect to any taxable years ending
on or prior to the date thereof.
12.5 The parties acknowledge that the consummation of
the conveyance of the Remainder Partnership Interests may result in a
termination of a Partnership pursuant to Section 708 of the Code, and the
closing of the Partnership's taxable year for Federal income tax purposes.
Purchaser shall file any required State unincorporated business franchise (or
similar) tax returns and a Federal income tax return for each Partnership for
all years from and after the conveyance of the Interim Partnership Interest
through the Closing Date for that Partnership. If necessary, Seller shall
execute any such returns prepared by Purchaser, but Seller shall not be
required to make any investigation into the accuracy or truthfulness of such
returns. Seller shall not be deemed to have made any representation or
warranty as to such accuracy or truthfulness.
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13. DEFAULT.
13.1 If:
(a) Seller shall fail to perform any of the
covenants or agreements to be performed by Seller;
(b) title to any Prospective Economic Benefits,
Undisputed Interests and/or Undisputed Economic Interests is encumbered or
otherwise unmarketable for any reason (unless waived or deemed waived by
Purchaser as provided elsewhere in this Agreement);
(c) title to the applicable Property is not in
the condition required by this Agreement;
(d) except with respect to any litigation
regarding the enforceability of this Agreement by any party other than Seller,
on the Closing Date(s) there is any litigation adversely affecting any Property
or the Undisputed Interests;
then in any such event, in addition to any legal or equitable remedies it may
have (including specific performance, which the parties agree is an appropriate
remedy given the circumstances under which this Agreement is entered into and
that Purchaser or its parent or affiliates are the sole tenants of the
Properties), Purchaser may require Seller to cure the default or to compensate
Purchaser with monetary damages for any loss, cost, damage or expense Purchaser
incurs or may incur as a consequence of the default. If Purchaser nevertheless
proceeds to Closing with respect to any unmarketable Economic Interests, then a
pro rata portion of the Allocation for said Remainder Economic Interests shall
be credited against the Allocation otherwise attributable to the unmarketable
Economic Interests. Purchaser may not terminate this Agreement. The
provisions of this Section are subject to the provisions of Section 10.2 above.
13.2 If Purchaser shall default in any obligation
hereunder, then, in addition to any legal or equitable remedies Seller may
have, including specific performance (which the parties agree is an appropriate
remedy given the circumstances under which this Agreement is entered into and
that Purchaser or its affiliates are the sole tenants of the Properties),
Seller may claim monetary damages for any loss, cost, damage or expense Seller
incurs as a consequence of the default. Notwithstanding the foregoing,
however, Seller may not terminate this Agreement.
14. [INTENTIONALLY OMITTED]
15. BROKERS. Seller and Purchaser each represent and warrant to
the other that no agent or broker has acted on its
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behalf in connection with this Agreement or the transactions contemplated
herein (including, in the case of Seller, CPI). Each party to this Agreement
shall defend, indemnify and hold harmless the other party and the Partnerships
against claims of any agents or brokers alleging to have acted on behalf of the
indemnifying party. The foregoing indemnity by Seller applies to any claim
made by CPI against any party hereto or against any Partnership, whether CPI
claims to have been engaged by Seller, an RSH Controlled Entity, a Newco or a
Partnership.
16. INDEMNIFICATIONS BY SELLER. Seller shall defend, indemnify
and hold Purchaser and each of the Partnerships harmless from and against any
and all claims, demands, actions, suits, proceedings, judgments, liabilities,
settlement amounts, damages, losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) arising out of or in connection with
the following:
(a) the Indemnification Agreement and guaranties
thereof referenced in Section 7.6; and
(b) the distribution of the amount to be paid under
Section 5.1 and the Allocation; and
(c) the tax returns described in Section 12.4 above
(or the failure to file returns) or the execution thereof by Purchaser; and
(d) (i) any representation and warranty made by Seller
in Section 7 not being materially true on the date hereof; and (ii) any default
or alleged default (whether or not any notice or cure period with respect
thereto has expired) arising or accruing prior to the applicable Closing Date
(A) by any Partnership, (B) by Seller on behalf of any RSH Controlled Entity,
or (C) by Seller in his capacity as a partner, shareholder, member, director,
officer, employee or other principal or agent of any Partnership or any RSH
Controlled Entity; and
(e) any tax liability incurred by Xxxxxx X. Xxxx
and/or Xxxxx X. Xxxx arising from their capacities as partners in 75th Avenue
Tier II Limited Partnership and/or Trak Chicago Tier II Limited Partnership as
a result of any transaction, event or act contemplated by this Agreement,
including (without limitation) the contributions of the 75th Avenue
Headquarters, the Wooded Lot and the Bridgeview Warehouse to Newcos, and/or
Purchaser or its parent, affiliate or sister entities guarantying or otherwise
agreeing to be liable for any debt now or hereafter owed by Seventy-Fifth
Avenue Associates Limited Partnership and/or Trak Chicago Limited Partnership I
or their Newco successors.
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The foregoing indemnifications are in addition to Purchaser's remedies
set forth in Section 13.1 above for default by Seller, if Seller does not cure
the default and a transfer occurs. The foregoing indemnifications shall be
implemented as set forth in the Settlement Agreement.
17. INDEMNIFICATIONS BY PURCHASER. Purchaser shall defend,
indemnify and hold Seller harmless from and against any claims, demands,
actions, suits, proceedings, judgments, liabilities, settlement amounts,
damages, losses, costs and expenses (including, without limitation, reasonable
attorneys' fees) arising out of or in connection with the following:
(a) any claim that the lease amendments described in
Section 2 above are a breach of Seller's fiduciary duty to the Partnerships;
and
(b) the tax returns described in Section 12.5 above
(or the failure to file returns) or the execution thereof by Seller and the RSH
Controlled Entities; and
(c) any liability arising or accruing in connection
with (i) Purchaser's ownership of a Undisputed Interest if such liability
arises or accrues after the date said Undisputed Interest is conveyed to
Purchaser under this Agreement or (ii) Purchaser's management of Headquarters
Newco, Wooded Lot Newco or Bridgeview Newco. Notwithstanding the foregoing,
however, this Section does not apply to any otherwise indemnified matter that
Seller may incur from a claim by Xxxxxx X. Xxxx and/or Xxxxx X. Xxxx (or their
successors or assigns) arising from their capacities as partners in 75th Avenue
Tier II Limited Partnership and/or Trak Chicago Tier II Limited Partnership and
related to any tax liability triggered by any sale, contribution, joint venture
or other act undertaken by said partnerships or by the Partnerships in which
they are partners or with respect to the Properties they own, unless the
following conditions are met: (i) the applicable Property has been transferred
to a Newco and the Plan of Reorganization as approved by the Bankruptcy Court
does not include item (c) from Section 6.5, or Purchaser has been substituted
for Seller as the general partner in Seventy-Fifth Avenue Associates Limited
Partnership and/or Trak Chicago Limited Partnership I, as applicable, by an
assignment of the Interim Partnership Interests under this Agreement; and (ii)
Purchaser, as manager of the Newco or as such general partner as set forth in
the preceding clause breaches the partnership agreement of 75th Avenue Tier II
Limited Partnership and/or Trak Chicago Tier II Limited Partnership; and (iii)
that breach gives rise to the aforesaid tax liability. In addition, the
foregoing indemnities under this subparagraph do not apply to any transaction,
event or act contemplated by this Agreement, including (without limitation)
those enumerated in Section 16(e) above.
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The foregoing indemnifications are in addition to Seller's remedies
set forth in Section 13.2 for Purchaser's default. The foregoing
indemnifications shall be implemented as set forth in the Settlement Agreement.
18. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties relating to the transfer of the Properties, the
Prospective Economic Benefits, the Interim Interests, the Remainder Interests
and the lease amendments for the Properties. All Exhibits attached to this
Agreement are part of this Agreement and incorporated by this reference for all
purposes. However, this Agreement is entered into simultaneously with certain
agreements (including, without limitation, the Settlement Agreement, the Real
Estate Master Agreement, the Disputed Partnership Interest Purchase Agreement
[Warehouses] dated of even or approximate date herewith between Seller and
Purchaser, and the Purchase Agreement [Pennsy Drive Warehouses] dated of even
or approximate date herewith between Seller and Purchaser relating to certain
other warehouse properties) as part of an integrated resolution of various real
estate-related issues; this Agreement and said other agreement(s) are different
elements of the same contractual transaction, although divided for the
convenience of the parties into separate documents. Any material breach by
Seller of the terms of this Agreement, after taking into account the Warehouse
Reserve under the Real Estate Master Agreement, shall be a material breach of
all other agreements entered into in connection with this transaction,
including (without limitation) the Settlement Agreement and the Real Estate
Master Agreement, and vice versa. With respect to the Properties, the
Prospective Economic Benefits, the Interim Interests, the Remainder Interests
and the lease amendments for the Properties, all prior negotiations between the
parties are merged in this Agreement and there are no promises, agreements,
conditions, undertakings, warranties or representations, oral or written,
express or implied, between them other than as herein set forth. No change or
modification of this Agreement shall be valid unless the same is in writing and
signed by the parties hereto. No waiver of any of the provisions of this
Agreement or any other agreement referred to herein shall be valid unless in
writing and signed by the party against whom it is sought to be enforced. In
the event of any conflict between the terms of the Settlement Agreement and the
Real Estate Master Agreement (on the one hand) and the terms of this Agreement
(on the other hand), the terms of the Settlement Agreement and Real Estate
Master Agreement shall control.
19. SURVIVAL. The covenants, agreements and indemnities set forth
in, or made pursuant to, this Agreement shall survive the date hereof, each
Closing, and the filing or recording of any documents indefinitely, except
that: (a) any representation and warranty by Seller with respect to an
Undisputed Interest or an Undisputed Economic Interest or the Property to which
they relate
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shall only survive for two (2) years after the actual conveyance of that
particular Interest or Property hereunder; and (b) all other representations
and warranties by either party shall only survive the date hereof for a period
of two (2) years.
20. MISCELLANEOUS.
20.1 This Agreement shall be binding upon, and inure to
the benefit of and be enforceable by, the respective successors of the parties
hereto. This Agreement shall not be assigned by either party. Purchaser shall
have the right to designate any parent, subsidiary or affiliated person or
entity to acquire any Interest or to be a member of a Newco under this
Agreement, and title to the applicable Undisputed Interest, Undisputed Economic
Interest or Property shall be issued in the name of any such designee(s). Any
such designee shall be a beneficiary of all of Seller's representations,
warranties, covenants and other agreements in this Agreement.
20.2 All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given to the following addresses and addressees (or to such other
addresses as notice may be given of from time to time):
If to Purchaser: Dart Group Corporation
0000 00xx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: President
and
Attn: General Counsel
with copies to: Xxxxxxx X. Xxxxx, Esq.
and
Xxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to Seller: Xx. Xxxxxx X. Xxxx
c/o Combined Properties
Incorporated
0000 X Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
with a copy to: Xxxx Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Notices shall be deemed to have been given at the time of receipt (refusal to
accept delivery, or inability to make delivery
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because of an incorrect or outdated address provided by the intended recipient,
shall constitute receipt).
20.3 This Agreement shall be construed in accordance
with the internal laws of the State of Maryland, without regard to conflicts of
laws. The parties acknowledge that Maryland law is chosen, even with respect
to those Partnerships and Properties which are not in Maryland, because
Maryland has the most contacts with the transactions contemplated herein.
20.4 If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be held
invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision herein shall remain in full force and effect. The parties
expressly acknowledge and agree that this Agreement has been entered into with
respect to the Partnerships and Properties solely for the convenience of the
parties and not in order to create any additional rights in any person other
than the parties hereto. The terms and conditions of this Agreement with
respect to each Partnership and Property shall be interpreted separately such
that if any provision of this Agreement with respect to any Partnership and/or
Property is ever held to be invalid or unenforceable, the provisions of this
Agreement with respect to the remaining Partnerships and/or Properties shall be
unaffected by such invalidity or unenforceability.
20.5 The captions of this Agreement are inserted for
convenience of reference only and do not define, describe or limit the scope or
the intent of this Agreement or any term hereof.
20.6 This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
20.7 Whenever herein the singular number is used, the
same shall include the plural where appropriate, and words of any gender shall
include the other gender where appropriate.
20.8 If the final date of any period provided for
herein for the performance of an obligation or for the taking of any action
falls on a Saturday, Sunday or banking holiday, then the time of such period
shall be deemed extended to the next day which is not a Saturday, Sunday or
banking holiday.
20.9 In the event that a legal action is brought to
enforce the terms of this Agreement, the prevailing party shall be entitled to
collect its costs of court, including reasonable attorneys fees.
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IN WITNESS WHEREOF, the parties have duly executed and sealed
this Agreement as of the day and year first above written.
PURCHASER:
---------
ATTEST: DART GROUP CORPORATION
------
By: /s/ Xxxxxx X. Xxxxxx
-------------------------- ------------------------------
[Corporate Seal] Name:
Title:
WITNESS: SELLER:
------- ------
/s/ Xxxxxx X. Xxxx (Seal)
-------------------------- ----------------------------
XXXXXX X. XXXX, personally
Taxpayer identification number:
###-##-####
Address (for purposes of Section 7.16
only, not for notice purposes):
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
The undersigned, being a wholly-owned subsidiary of Dart Group Corporation,
hereby guaranties the performance of Dart Group Corporation under the foregoing
Purchase Agreement [Warehouse Partnership Interests].
ATTEST: XXXXX XXXXXX REAL ESTATE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-------------------------- ----------------------------
[Corporate Seal] Name:
Title:
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