REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT (this "Agreement") is made as of April 27,
2000, by and among PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited
partnership, having an office at 000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Operating Partnership") and XXXXXX XXXXXXXX ("Pilevsky"), an
individual having a residence at 00 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H
WHEREAS, as of August 8, 1997, Pilevsky and PL Palm Springs, L.P., a
Delaware limited partnership ("PL Palm Springs") in which Pilevsky owned a 90.3%
limited partnership interest, had owned, respectively, a 43.5% limited
partnership interest and 51.5% limited partnership interest in Palm Springs Mile
Associates, Ltd., a Florida limited partnership ("Palm Springs Ltd");
WHEREAS, as of December 31, 1997, Pilevsky and PL Palm Springs had
contributed and/or assigned their respective interests in Palm Springs Ltd to
the Operating Partnership in exchange for, respectively, 508,299 and 601,779
Operating Partnership units;
WHEREAS, thereafter, PL Palm Springs distributed all of its 601,779
Operating Partnership units to its partners, with 90.3% of such units, or
543,407 in total, being distributed to Pilevsky;
WHEREAS, Pilevsky currently owns 1,540,290 Operating Partnership units
(the "OP Units");
WHEREAS, among those partnership and membership interests in various
partnerships and limited liability companies which own real properties that it
owns (individually, a "Property Partnership" and collectively, the "Property
Partnerships"), Operating Partnership currently owns a 99.99% limited
partnership interest (the "Palm Springs Ltd Interest") in Palm Springs Ltd;
WHEREAS, Philips Palm Springs Sub-VIII, Inc., a Delaware corporation
("Philips Sub-VIII") and a wholly-owned subsidiary of Philips International
Realty Corp., a Maryland corporation ("Philips Corp."), owns a .01% general
partnership interest in Palm Springs Ltd;
WHEREAS, Palm Springs Ltd owns the undivided fee interest in the four
parcels comprising that certain real property located in Dade County, Florida as
more particularly described on Schedule A annexed hereto (the "Property");
WHEREAS, prior to the Closing Date, Operating Partnership and Philips
Corp. shall have caused Palm Springs Ltd to have contributed, in fee, undivided
interests in two of the
parcels comprising the Property referred to as Components 1 and 2 ("Shared
Parcels") to four (4) separate limited liability companies (each, a "Palm
Springs LLC" and, together, the "Palm Springs LLCs") all of the interests of
each of which shall be distributed to Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx, Philips
Freeport Development Corp., a _________ corporation and Xxxxxxx Holiday Corp., a
________ corporation;
WHEREAS, prior to the Closing Date, the Palm Springs LLCs and Palm
Springs Ltd shall have entered into a tenancy in common agreement ("Tenancy
Agreement") with respect to the Shared Parcels, which agreement shall be
substantially in the form attached hereto as Schedule B;
WHEREAS, immediately prior to the redemption described in Section 1
below, the portion of the Property owned by Palm Springs Ltd shall have an
equity value of not less than $32,113,041 and shall be subject to an amount of
debt not less than $58,229,728 which debt shall have such terms and conditions
no less favorable to Palm Springs, Ltd than the terms on conditions set forth on
Schedule F attached hereto;
WHEREAS, in the manner set forth herein, the Operating Partnership will
redeem all of the OP Units that Pilevsky shall own and, in exchange therefor,
the Operating Partnership shall distribute to Pilevsky a 90% limited partnership
interest in Palm Springs Ltd, as more particularly set forth herein; and
WHEREAS, simultaneously with the redemption described in Section 1
below, the Operating Partnership shall also distribute to SL Florida LLC, a
Delaware limited liability company, a 10% limited partnership interest in Palm
Springs Ltd in redemption of all of its units in Operating Partnership, and Palm
Springs Ltd shall distribute to Philips Sub-VIII an amount of cash to Philips
Sub-VIII equal to the equity value of its .01% general partnership interest in
Palm Spring Ltd in complete redemption of such interest.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and the mutual
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the mutual receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Redemption. At the Closing (as defined in Section 2), Operating
Partnership hereby agrees to redeem, and Pilevsky hereby agrees to
have redeemed, all of the OP Units which he shall own on the Closing
Date free and clear of any and all liens or other encumbrances, in
exchange for which the Operating Partnership shall distribute and/or
assign to Pilevsky a ninety percent (90%) limited partnership interest
in Palm Springs Ltd ("Assigned Interest") having an equity value of
not less than $28,495,365 and, in connection therewith, Palm Springs
Ltd shall have sufficient debt outstanding that will be allocated to
Pilevsky (including, if necessary, by Palm Springs Ltd having made
available to Pilevsky sufficient debt for him to guarantee or
indemnify through the execution of one or more "bottom dollar"
guarantees or indemnities) so that Pilevsky shall
not recognize any gain or income as a result of the distribution and/or
assignment of the Assigned Interest.
2. Closing. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxx
Xxxxxxx Xxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, on ____________ (the "Closing Date").
3. Representations, Warranties and Covenants.
3.01 Operating Partnership hereby represents and warrants to
Pilevsky as follows:
(a) Operating Partnership is a duly formed and validly
existing limited partnership organized and in good
standing under the laws of the State of Delaware, and
Palm Springs Ltd is a duly formed and validly existing
limited partnership organized and in good standing under
the laws of the State of Florida.
(b) Operating Partnership has or shall have by the Closing
Date the full legal right, power and authority to execute
and deliver this Agreement and Operating Partnership
Documents (as defined in Section 4.01) to consummate the
transactions contemplated hereby and to perform its
obligations hereunder and under Operating Partnership
Documents.
(c) This Agreement and Operating Partnership Documents do not
and will not (I) contravene any provision of the Amended
and Restated Limited Partnership Agreement of Operating
Partnership ("Operating Partnership Agreement"), the
Amended and Restated Limited Partnership Agreement of
Palm Springs Mile Associates, Ltd ("Palm Springs Ltd
Partnership Agreement"), the operating agreement, if any,
of any of the Palms Springs LLCs (each of which, a "Palm
Springs LLC Agreement"), the Tenancy Agreement or any
partnership or operating agreement of any of their
respective subsidiaries or affiliates, or any judgment,
order, decree, writ or injunction issued against
Operating Partnership, Palm Springs Ltd, any Palms
Springs LLC or any of their
respective subsidiaries or affiliates; or (II) materially
violate a material provision of any law or governmental
ordinance, rule, regulation, order or requirement
(collectively, "Laws") to which Operating Partnership,
Palm Springs Ltd, any Palm Springs LLC or any of their
respective subsidiaries or affiliates is or will be
subject, except such violations as would not have a
material adverse effect on any of the transactions
contemplated hereby if finally determined adversely to
such party. The consummation of the transactions
contemplated hereby will not result in a breach or
constitute a default or event of default by Operating
Partnership, Palm Springs Ltd, any Palm Springs LLC or
any of their respective subsidiaries or affiliates under
any agreement to which any of them or any of their assets
are or will be subject or bound (including, without
limitation, Operating Partnership Agreement, the Tenancy
Agreement, any Palm Springs LLC Agreement or any of the
Property) and will not result in a violation of any Laws
to which Operating Partnership, Palm Springs Ltd, any
Palm Springs LLC or any of their respective subsidiaries
or affiliates is or will be subject, except such
violations as would not have a material adverse effect on
the transaction contemplated hereby if finally determined
adversely to Operating Partnership, Palm Springs Ltd, any
Palm Springs LLC or any of their respective subsidiaries
or affiliates.
(d) Operating Partnership owns the Assigned Interest free and
clear of any and all liens and encumbrances.
(e) Upon Operating Partnership's delivery of the assignment
of the Assigned Interest to Pilevsky in the manner set
forth on Schedule C (collectively, the "Assignment") and
all of the other Operating Partnership Documents, good
and valid title to the Assigned Interest will pass to
Pilevsky.
(f) There are no statutory or contractual preemptive rights,
rights of refusal or options with respect to the transfer
and/or assignment of any portion of the Assigned
Interest.
(g) No representation or warranty by Operating Partnership in
this Agreement and no statement contained herein or in
any document, certificate, or other writing furnished or
to be furnished by Operating Partnership to Pilevsky
pursuant to the provisions hereof or in connection with
the transactions contemplated hereby contains or will
contain any untrue statement of material fact or omits or
will omit to state any material fact necessary in order
to make the statements herein or therein not misleading.
Operating Partnership has disclosed to Pilevsky all facts
known or reasonably available to Operating Partnership
that are material to the transactions contemplated
herein.
(h) Immediately prior to the Closing Date, Palm Springs Ltd
will own fee title to the Property which shall have an
equity value of not less than $32,113,041 and shall be
subject to an amount of debt not less than $58,229,728
and which debt shall have such terms and conditions no
less favorable to Palm Springs Ltd then the terms and
conditions set forth on Schedule F.
3.02 Pilevsky hereby represents and warrants to the Operating
Partnership as follows:
(a) Pilevsky has the full legal right, power and authority to
execute and deliver this Agreement and Pilevsky
Documents, to consummate the transactions contemplated
hereby, and to perform his obligations hereunder and
under Pilevsky Documents.
(b) This Agreement and Pilevsky Documents do not and will not
contravene any judgment, order, decree, writ or
injunction issued against Pilevsky, or materially violate
a material provision of any Law applicable to Pilevsky,
except such violations as would not have a material
adverse effect on any of the transactions contemplated
hereby if finally determined adversely to Pilevsky.
Pilevsky hereby represents and warrants that the
consummation of the transactions contemplated hereby will
not result in a breach or constitute a default or event
of default by Pilevsky under any agreement to which
Pilevsky or any of his assets is subject or bound and
will not result in a violation of any Laws applicable to
Pilevsky, except such violations as would not have a
material adverse effect on the transactions contemplated
hereby if finally determined adversely to Pilevsky.
(c) Pilevsky owns or will own on the Closing Date the OP
Units free and clear of any and all liens and
encumbrances.
(d) Pilevsky has had the opportunity to ask questions and
receive financial information concerning the business and
value of Palm Springs Ltd, the Assigned Interest and the
Property and is sophisticated in business financial
matters and understands the benefits and risks of the
investment decision contemplated hereby. Pilevsky accepts
and agrees that the Assigned Interest to be received
hereunder represents fair value for the OP Units to be
exchanged hereunder. Pilevsky acknowledges that, were
this transaction not to occur, the value in the future of
the Assigned Interest and the OP Units would be different
than their respective value today.
(e) No representation or warranty by Pilevsky in this
Agreement and no statement contained herein or in any
document, certificate, or other writing furnished or to
be furnished by Pilevsky to Operating Partnership
pursuant to the provisions hereof or in connection with
the transactions contemplated hereby contains or will
contain any untrue statement of material fact or omits or
will omit to state any material fact necessary in order
to make the statements herein or therein not misleading.
Pilevsky has disclosed to Operating Partnership all facts
known or reasonably available to Pilevsky that are
material to the transactions contemplated herein.
3.03 Between the date first written above and the Closing Date, (A)
Palm Springs Ltd shall not enter into, renew, modify,
terminate or otherwise amend any lease or
other document affecting the Property without the prior
consent of Pilevsky in each instance, which consent shall not
be unreasonably withheld or delayed and which consent (or
denial of consent in which case Pilevsky shall also include
the reasons for such denial) shall be furnished, in writing,
by a Pilevsky to Palm Springs Ltd by no later than five days
following Pilevsky's receipt of written notice of Palm Springs
Ltd's desire to enter into, renew, modify, terminate or
otherwise amend any lease or other document affecting the
Property; a Pilevsky's consent shall be deemed to have been
granted if Pilevsky fails to furnish notice, in writing, to
Palm Springs Ltd of Pilevsky's denial of consent (and the
reasons for such denial) by the end of such five-day period;
(B) Palm Springs Ltd shall not enter into any property
operating maintenance or service or other contracts requiring
more than thirty (30) days notice to terminate; and (C) Palm
Springs Ltd shall continue to maintain and repair the Property
as in its normal course of business.
4. Conditions Precedent to Closing.
4.01 Operating Partnership's obligation under this Agreement to
consummate the transactions contemplated herein is subject to
the fulfillment of each of the following conditions.
(a) The representations and warranties of Pilevsky contained
herein shall be true, accurate and correct in all
material respects as of the Closing Date, except to the
extent they expressly relate only to an earlier date.
(b) All consents and approvals of governmental authorities
and parties to agreements to which Pilevsky is a party or
by which any asset owned by Pilevsky is bound that are
required with respect to the consummation of the
transactions contemplated by this Agreement shall have
been obtained and copies thereof shall have been
delivered to Operating Partnership at or prior to the
Closing.
(c) On or prior to the Closing Date, (i) Pilevsky shall not
have applied for or consented to the appointment of a
receiver, trustee or liquidator for himself or any of his
assets unless the same shall have been discharged prior
to the Closing Date, and no such receiver, liquidator or
trustee shall have otherwise been appointed, unless same
shall have been discharged prior to the Closing Date,
(ii) Pilevsky shall not have admitted in writing an
inability to pay his debts as they mature, (iii) Pilevsky
shall not have made a general assignment for the benefit
of creditors, (iv) Pilevsky shall not have been
adjudicated a bankrupt or insolvent, or had a petition
for reorganization granted with respect to Pilevsky, (v)
Pilevsky shall not have filed a voluntary petition
seeking reorganization or an arrangement with creditors
or taken advantage of any bankruptcy, reorganization,
insolvency, readjustment or debt, dissolution or
liquidation law or statute, or filed an answer admitting
the material allegations of a petition filed against him
in any proceeding under any such law or statute, or had
any petition filed against him in any proceeding under
any such law or statute unless the same shall have been
dismissed, canceled or terminated prior to the Closing
Date.
(d) Philips Corp. shall have received shareholder approval
for the transactions hereunder.
(e) This Agreement shall not have been terminated, if
expressly permitted herein.
(f) There shall be no litigation or administrative agency or
other governmental proceeding of any kind whatsoever,
pending or threatened, which would materially and
adversely affect the OP Units.
(g) The closing of title (the "Group A Closing") under and
pursuant to that certain Purchase and Sale Agreement (the
"Group A Agreement") dated ________, 2000, by and among
Xxxxxx Park Associates, LLC, North Shore Triangle, LLC,
Philips Yonkers, LLC, Xxxxxxx Xxxxx, LLC, Philips
Shopping Center Fund, L.P. and Philips Xxxx Xxxx
Associates, L.P., collectively as Seller, and Kimco
Income Operating Partnership, L.P., as Purchaser, for
each Property or Ground Lease (each as defined in the
Group A Agreement) shall have occurred or shall have been
excluded or postponed pursuant to the terms of the Group
A Agreement.
(h) While the closing of title (the "Group B Closing") under
and pursuant to that certain Asset Contribution, Purchase
and Sale Agreement dated ________, 2000, by and among
Operating Partnership, Philips Corp., Certain Affiliated
Parties Signatory Thereto, KIR Acquisition, LLC, and
Kimco Income Operating Partnership, L.P., shall not be
scheduled to occur, and shall not occur, until at least
one day following the Closing Date, all of the material
conditions to the Group B Closing required to have been
satisfied as of the day immediately prior to the Closing
Date shall have been satisfied or waived.
(i) On or prior to the redemption described in Section 1
above, Pilevsky shall have executed, or caused the
execution of, such guaranty or guarantees of the debt
that is to encumber the Property owned by Palms Springs
Ltd immediately following the redemption described in
Section 1 above in accordance with the terms and
conditions for such debt set forth on Schedule F attached
hereto.
4.02 Pilevsky's obligation under this Agreement to consummate the
transactions contemplated herein is subject to the fulfillment
of each of the following conditions.
(a) The representations and warranties of the Operating
Partnership contained herein shall be true, accurate and
correct in all material respects as of the Closing Date,
except to the extent they relate only to an earlier date.
(b) All consents and approvals of governmental authorities
and parties to agreements to which Operating Partnership,
Palm Springs Ltd, Philips Sub-VIII or any Property
Partnership is a party or by which any asset of Operating
Partnership, Palm Springs Ltd, Philips Sub-VIII or any
Property Partnership is bound (including any of the
Property) that are required with respect to the
consummation of the transactions contemplated by this
Agreement shall have been obtained and copies thereof
shall have been delivered to Pilevsky at or prior to the
Closing.
(c) On or prior to Closing Date, (i) neither Operating
Partnership, Palm Springs Ltd, Philips Sub-VIII nor any
Property Partnership shall have applied for or consented
to the appointment of a receiver, trustee or liquidator
for itself or any of its assets unless the same shall
have been discharged prior to the Closing Date, and no
such receiver, liquidator or trustee shall have otherwise
been appointed, unless same shall have been discharged
prior to the Closing Date, (ii) neither Operating
Partnership, Palm Springs Ltd, Philips Sub-VIII nor any
Property Partnership shall have admitted in writing an
inability to pay its debts as they mature, (iii) neither
Operating Partnership, Palm Springs Ltd, Philips Sub-VIII
nor any Property Partnership shall have made a general
assignment for the benefit of creditors, (iv) neither
Operating Partnership, Palm Springs Ltd, Philips Sub-VIII
nor any Property Partnership shall have been adjudicated
a bankrupt or insolvent, or had a petition for
reorganization granted with respect to itself, (v)
neither Operating Partnership, Palm Springs Ltd, Philips
Sub-VIII nor any Property Partnership shall have filed a
voluntary petition seeking reorganization or an
arrangement with creditors or taken advantage of any
bankruptcy, reorganization, insolvency, readjustment or
debt, dissolution or liquidation law or statute, or filed
an answer admitting the material allegations of a
petition filed against it in any proceedings under any
such law or statute, or had any petition filed against it
in any proceeding under any of such law or statute unless
the same shall have been dismissed, canceled or
terminated prior to the Closing Date.
(d) This Agreement shall not have been terminated, if
expressly permitted herein.
(e) There shall be no litigation or administrative agency or
other governmental proceeding of any kind whatsoever,
pending or threatened, which would materially and
adversely affect Palm Springs Ltd, any portion of the
Assigned Interest or any of the Property.
(f) While the Group B Closing shall not be scheduled to
occur, and shall not occur, until at least one day
following the Closing Date, all of the material
conditions to the Group B Closing required to have been
satisfied as of the day immediately prior to the Closing
Date shall have been satisfied or waived.
(g) Immediately following the redemption described in Section
1 above, there shall be not less than $58,229,728 of debt
encumbering the Property, such debt shall have such terms
and conditions no less favorable to Palm Springs Ltd than
the terms and conditions set forth on Schedule F attached
hereto, and that Pilevsky shall be allocated a sufficient
amount of debt of Palm Springs Ltd (including, if
necessary, Palm Springs Ltd having made available to
Pilevsky sufficient debt for him to guarantee or
indemnify through the execution of one or more "bottom
dollar" guarantees or indemnities) so that Pilevsky shall
not recognize any income as a result of the distribution
of the Assigned Interest to Pilevsky in redemption of his
OP Units.
(h) Immediately prior to the redemption described in Section
1 above, the Property shall have an equity value of at
least $32,113,041.
(i) Immediately prior to the redemption under Section 1
above, the entire interest of Philips Sub-VIII in Palm
Springs Ltd shall have been redeemed for cash equal to
the then equity value of Philips Sub-VIII entire
partnership interest in Palm Springs Ltd and Philips
Sub-VIII shall no longer be a partner of Palm Springs
Ltd.
5. Delivery of Documents at Closing.
5.01 Deliveries by Operating Partnership. Operating Partnership
agrees to deliver (or cause to be delivered) to Pilevsky at
the Closing the following agreements and documents ("Operating
Partnership Documents"), all satisfactory in form and
substance to Pilevsky:
(a) The Assignment, duly executed by Operating Partnership;
(b) A certificate of good standing and/or subsistence, dated
not more than thirty (30) days prior to the Closing Date,
issued by the Secretary of State of the State of Delaware
with respect to Operating Partnership, the State of
Maryland with respect to Philips Corp. and the State of
Florida with respect to Palm Springs Ltd;
(c) Certified copy of a consent duly adopted by the general
partner of Operating Partnership authorizing the
execution, delivery and performance of this Agreement and
of each of the Operating Partnership Documents;
(d) General release from Operating Partnership and Philips
Corp. in the form attached as Schedule D, duly executed
by Operating Partnership and Philips Corp.; and
(e) Such other consents, documents and instruments as may be
reasonably required to effectuate the terms of this
Agreement and to comply with the terms hereof.
5.02 Deliveries by Pilevsky. Pilevsky agrees to deliver (or cause
to be delivered) to Operating Partnership at the Closing the
following agreements and documents ("Pilevsky Documents"), all
satisfactory in form and substance to Operating Partnership:
(a) The Assignment, duly executed by Pilevsky;
(b) General release from Pilevsky in the form attached as
Schedule E, duly executed by Pilevsky; and
(c) Such other consents, documents and instruments as may be
reasonably required to effectuate the terms of this
Agreement and to comply with the terms hereof.
5.03 Further Assurances. After the Closing, at the request of
either party hereto, and without further conditions or
consideration, each party shall execute and deliver from time
to time such other instruments, documents, agreements and/or
take such other actions as the other party may reasonably
request in order to more effectively consummate the
transactions contemplated herein. This Section 5.03 shall
survive the Closing.
6. Remedies. If any party hereto shall be in default of or breach any of
his respective obligations hereunder, then each party shall have such
rights or remedies available at law and/or in equity, including,
without limitation, the right of specific performance.
7. Notices. All notices, requests, demands, consents or waivers and other
communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given if delivered by (i) hand, (ii)
facsimile (with immediate confirmation), (iii) a nationally
recognized overnight courier for next business day delivery (charges
prepaid), or (iv) certified or registered mail, return receipt
requested (postage prepaid):
If to Operating Partnership, to:
Philips International Realty Corp.
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Pilevsky, as follows:
Xxxxxx Xxxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile:
With a copy to:
XxXxxxxxx Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or, in each case, to such other person or address as any party shall
furnish to the other parties in writing. Notices shall be deemed to be
delivered upon receipt or rejection.
8. Confidentiality.
---------------
8.01 (a) Operating Partnership, on behalf of itself and its
Representatives (as defined in Section 8.03(a)), agrees that,
prior to the Closing, all information relating to this
Agreement shall be kept strictly confidential by Operating
Partnership and its Representatives and shall not, without the
prior written consent
of Pilevsky, be disclosed by Operating Partnership or its
Representatives, in any manner whatsoever, in whole or in
part, and will not be used by Operating Partnership or its
Representatives, directly or indirectly, for any purpose other
than evaluating the transactions contemplated hereunder. The
provisions of this Section 8.01(a) shall in no event apply to
any information which is a matter of public record and shall
not prevent Operating Partnership, Philips Corp. or any of
their Affiliates or Representatives (i) from complying with
any Law to which any of them is subject and (ii) from making
any disclosure required to be made by any of them which any of
them deem appropriate to the public, the shareholders of
Philips Corp. or any other person or persons pursuant to any
Securities and Exchange Law or other Law.
(b) Pilevsky, on behalf of himself and his Representatives,
agrees that, prior to the Closing, all information relating to
this Agreement shall be kept strictly confidential by Pilevsky
and his Representatives and shall not, without the prior
written consent of the Operating Partnership, be disclosed by
Pilevsky or his Representatives in any manner whatsoever, in
whole or in part, and will not be used by Pilevsky or his
Representatives, directly or indirectly, for any purpose other
than evaluating the transactions contemplated hereunder. The
provisions of this Section shall in no event apply to any
information which is a matter of public record and shall not
prevent a Pilevsky or any of his Representatives from
complying with any Law to which Pilevsky or any such
Representative is subject.
8.02 (a) Operating Partnership shall indemnify and hold Pilevsky
and his Representatives harmless from and against any and all
claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including, without
limitation, reasonable attorneys' fees and disbursements)
suffered or incurred by Pilevsky or any Affiliate of Pilevsky
or any Representative of Pilevsky and arising out of or in
connection with a breach by Operating Partnership or any
Affiliate or Representative of Operating Partnership of any
provision of this Section 8.
(b) Pilevsky shall indemnify and hold the Operating
Partnership and its Representatives harmless from and against
any and all claims, demands, causes of action, losses,
damages, liabilities, costs and expenses (including, without
limitation, reasonable attorneys' fees and disbursements)
suffered or incurred by the Operating Partnership, any
Affiliate and arising out of or in connection with a breach by
a Pilevsky or any Affiliate or Representative of a Pilevsky of
any provision of this Section 8.
8.03 As used in this Agreement, the following terms shall have the
following meanings:
(a) "Representative" shall mean, with respect to any person,
any member, shareholder, partner, manager, director,
officer, trustee, principal, agent, employee, contractor,
broker, and/or other representative of such person,
including, the attorneys, accountants and financial
advisors of the Operating Partnership or Pilevsky.
(b) "Affiliate" shall mean, with respect to any person, any
direct or indirect subsidiary or other affiliate of such
person.
8.04 The provisions of this Section 8 shall survive the Closing.
9. Miscellaneous.
9.01 This Agreement shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular,
and no consent or approval required pursuant to this Agreement
shall be effective, unless the same shall be in writing and
signed by or on behalf of the party to be affected thereby.
9.02 This Agreement may not be assigned by any party hereto.
9.03 This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and to their respective heirs,
executors, administrators, successors and permitted assigns.
9.04 All prior statements, understandings, representations and
agreements between the parties, oral or written, are
superseded by and merged into this Agreement, which alone
fully and completely expresses the agreement between them in
connection with this transaction and which is entered into
after full investigation, neither party relying upon any
statement, understanding, representation or agreement made by
the other not embodied in this Agreement. This Agreement shall
be given a fair and reasonable construction in accordance with
the intentions of the parties hereto, and without regard to or
aid of canons requiring construction against the party
drafting this Agreement.
9.05 Except as otherwise expressly provided herein, all of the
parties' representations, warranties, covenants and agreements
herein shall merge into the documents and agreements executed
at the Closing and shall not survive the Closing.
9.06 No failure or delay of either party in the exercise of any
right or remedy given to such party hereunder or the waiver by
any party of any condition hereunder for his benefit (unless
the time specified herein for exercise of such right or remedy
has expired) shall constitute a waiver of any other or further
right or remedy nor shall any single or partial exercise of
any right or remedy preclude other or further exercise thereof
or any other right or remedy. No waiver by any party of any
breach hereunder or failure or refusal by any other party to
comply with his obligations shall be deemed a waiver of any
other or subsequent breach, failure or refusal to so comply.
9.07 Neither this Agreement nor any memorandum thereof shall be
recorded by either party hereto and any attempted recordation
hereof shall be void and shall constitute a default under this
Agreement.
9.08 This Agreement may be executed in one or more counterparts,
each of which so executed and delivered shall be deemed an
original, but all of which taken together shall constitute but
one and the same instrument.
9.09 The caption headings in this Agreement are for convenience
only and shall not be construed to modify, explain or alter
any of the terms, covenants or conditions herein contained.
Any and all schedules and exhibits referenced herein are by
this reference hereby made a part hereof and incorporated
herein.
9.10 This Agreement shall be interpreted and enforced in accordance
with the laws of the State of New York, without reference to
its conflicts of law principles and, in the event of any
dispute in connection with this Agreement, venue shall be in
the federal and state courts located in New York County.
9.11 If the last day of the period prescribed herein for the giving
of any notice, election, consent, approval, demand, objection
or request or the submission of any documents by any party
hereunder shall fall on a Saturday, Sunday or any day observed
as a public holiday by the federal government or the State of
New York, then such period shall be deemed to be extended to
the immediately following day which is not a Saturday, Sunday
or such public holiday. The term "business day" as used in
this Agreement shall mean any day other than Saturday, Sunday
or any day observed as a public holiday by the federal
government or the State of New York.
9.12 Unless otherwise specified herein, for purposes of this
Agreement (a) references to persons or parties include their
permitted successors and assigns; (b) references to
modifications or amendments shall in all events mean
modifications and amendments; (c) references to statutes are
to be construed as including all rules and regulations adopted
pursuant to the statute referred to and all statutory
provisions consolidating, amending or replacing the statute
referred to; (d) references to agreements and other
contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto entered
into from time to time after the date hereof; (e) the words
"include" or "including", and words of similar import, shall
be deemed to be followed by the words "but not limited to" or
"without limitation"; (f) the words "hereto", "herein",
"hereof' and "hereunder", and words of similar import, refer
to this Agreement in its entirety;
and (g) unless otherwise specified herein, all references to
Sections are to Sections of this Agreement. Terms defined
herein may be used in the singular or the plural; when used in
the singular and preceded by "a", "an" or "any", such term
shall be taken to indicated one or more members of the
relevant class; and when used in the plural, such term shall
be taken to indicate all members of the relevant class.
9.13 If any provision of this Agreement shall be unenforceable or
invalid, the same shall not affect the remaining provisions of
this Agreement and to this end the provisions of this
Agreement are intended to be and shall be severable.
9.14 The parties hereto hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other
on any matter arising out of or in any way connected with this
Agreement.
9.15 This Agreement shall not be binding upon any party unless and
until each of the parties shall have executed and delivered a
fully executed original of this Agreement to the other
parties.
9.16 All schedules attached hereto are hereby incorporated herein
by reference and made a part hereof.
9.17 In the event that any party hereto brings an action or
proceeding for a declaration of the rights of the parties
under this Agreement, for injunctive relief, or for an alleged
breach or default of this Agreement, or any other action
arising out of this Agreement or the transactions contemplated
hereby, the prevailing party in any such action shall be
entitled to an award of reasonable attorneys' fees,
disbursements and any court costs incurred in connection with
such action or proceeding, in addition to any other damages or
relief awarded, regardless of whether such action proceeds to
final judgment.
9.18 The Palm Springs Ltd Partnership Agreement shall be amended
and restated to reflect the transactions set forth herein. It
is hereby intended that Pilevsky's tax attributes attributable
to the OP Units shall be preserved in the Assigned Interest.
In connection therewith, the Palm Springs Ltd Partnership
Agreement shall be amended so as to reflect that Pilevsky
shall have an initial capital account balance of
$28,495,365.00 and a ninety percent (90%) "profit" percentage
interest of 90% in Palm Springs Ltd and Pilevsky shall be
allocated a sufficient amount of debt of Palm Springs Ltd
(including, if necessary, by Palm Springs Ltd having made
available to Pilevsky sufficient debt for him to guarantee or
indemnify through the execution of one or more "bottom dollar"
guarantees or indemnities) so that Pilevsky shall not
recognize any income or gain under Section 752 or 465 of the
Internal Revenue Code of 1986, as amended.
10. As Is
10.01 Pilevsky expressly acknowledges and agrees that, subject to
and in accordance with the terms and conditions of this
Agreement, in connection with distribution of the Assigned
Interest to Pilevsky, Pilevsky accepts the Property on an
"as-is-where-is and with all faults" basis.
10.02 This Agreement, as written, contains all the terms of the
agreement entered into between the parties as of the date
hereof, and Pilevsky acknowledges that neither Operating
Partnership nor any of its Affiliates or Representatives, has
made any representations or held out any inducements to
Pilevsky, and Operating Partnership hereby specifically
disclaims any representation, oral or written, past, present
or future, other than those specifically set forth in this
Agreement. Without limiting the generality of the foregoing,
Pilevsky has not relied on any representations or warranties,
and neither Operating Partnership nor any of its Affiliates or
Representatives has or is willing to make any representations
or warranties, express or implied, other than as may be
expressly set forth herein, as to: (a) the status of title to
the Property; (b) the current or future real estate tax
liability, assessment or valuation of the Property; (c) the
potential qualification of the Property for any and all
benefits conferred by any Laws whether for subsidies, special
real estate tax treatment, insurance, mortgages or any other
benefits, whether similar or dissimilar to those enumerated;
(d) the compliance of the Property in its current or any
future state with applicable Laws or any violations thereof,
including, without limitation, those relating to access for
the handicapped, environmental or zoning matters, and the
ability to obtain a change in the zoning or a variance in
respect to the Property's non-compliance, if any, with zoning
Laws; (e) the nature and extent of any right-of-way, lease,
possession, lien, encumbrance, license, reservation, condition
or otherwise; (f) the availability of any financing for the
purchase, alteration, rehabilitation or operation of the
Property from any source, including, without limitation, any
government authority or any lender; (g) the current or future
use of the Property; (h) the present and future condition and
operating state of any personal property and the present or
future structural and physical condition of the buildings or
other improvements located on the Property, their suitability
for rehabilitation or renovation, or the need for expenditures
for capital improvements, repairs or replacements thereto; (i)
the viability, financial condition or continued occupancy of
any tenant; (j) the status of the leasing market in which any
Property is located; or (k) the actual or projected income or
operating expenses of the Property.
10.03 Pilevsky or anyone claiming by, through or under Pilevsky,
hereby fully and irrevocably releases Operating Partnership,
its Affiliates and Representatives, from any and all claims
that it may now have or hereafter acquire against Operating
Partnership, its Affiliates or Representatives for any cost,
loss, liability, damage, expense, action or cause of action,
whether foreseen or unforeseen, arising from or related to any
construction defects, errors or omissions on or in the
Property, the presence of environmentally hazardous, toxic or
dangerous substances, or any other conditions (whether patent,
latent or otherwise) affecting the Property. Pilevsky further
acknowledges and agrees that this release shall be given full
force and effect according to each of its expressed terms and
provisions, including, but not limited to, those relating to
unknown and suspected claims, damages and causes of action.
10.04 This Section 10 shall survive the Closing or sooner
termination of this Agreement.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered all on the day and year first above written.
WITNESS: OPERATING PARTNERSHIP:
------- ---------------------
PHILIPS INTERNATIONAL REALTY, L.P.,
a Delaware limited partnership
By: Philips International Realty
Corp., a Maryland corporation, its
general partner
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Petra
------------------------------------ -----------------------------
Print Name: Xxxxxx Xxxxxxx Name: Xxxxx X. Petra
------------------------- Title: President
WITNESS:
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx Xxxxxxxx
------------------------------------ -----------------------------
Print Name: Xxxxx X. Xxxxx XXXXXX XXXXXXXX
-------------------------
The undersigned authorize and consent to (both on behalf of themselves
and Palm Springs Ltd) all of the transactions contemplated by this Agreement and
all of the provisions under this Agreement, and each shall (and shall cause Palm
Springs Ltd to) take any and all actions and execute and deliver any and all
instruments, documents or agreements and to otherwise extend their full
cooperation so as to effectuate and satisfy and cause the effectuation of and
satisfaction of any and all of the representations, warranties, covenants and
obligations made herein.
WITNESS: PHILIPS INTERNATIONAL REALTY, L.P.,
a Delaware limited partnership
By: Philips International Realty
Corp., a Maryland corporation, its
general partner
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Petra
------------------------------------ ---------------------------------
Print Name: Xxxxxx Xxxxxxx Name: Xxxxx X. Petra
------------------------- Title: President
WITNESS: PALM SPRINGS MILE ASSOCIATES, LTD., a
Florida limited partnership
By: Philips Palm Springs Sub-VIII,
Inc., a Delaware corporation, its
general partner
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Petra
------------------------------------ ---------------------------------
Print Name: Xxxxxx Xxxxxxx Name: Xxxxx X. Petra
------------------------- Title: President
WITNESS: PHILIPS PALM SPRINGS SUB-VIII, INC.,
a Delaware corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Petra
------------------------------------ ---------------------------------
Print Name: Xxxxxx Xxxxxxx Name: Xxxxx X. Petra
------------------------- Title: President
WITNESS: PHILIPS INTERNATIONAL REALTY CORP., a
Maryland corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Petra
------------------------------------ ---------------------------------
Print Name: Xxxxxx Xxxxxxx Name: Xxxxx X. Petra
------------------------- Title: President
SCHEDULE A
LEGAL DESCRIPTION OF THE PROPERTY
[See attached]
SCHEDULE B
TENANCY AGREEMENT
SCHEDULE C
ASSIGNMENT OF PARTNERSHIP INTEREST
IN PALM SPRINGS MILE ASSOCIATES, LTD.
THIS ASSIGNMENT OF PARTNERSHIP INTEREST (this "Assignment") is made as
of this ___ day of ___________, 2000, by PHILIPS INTERNATIONAL REALTY, L.P., a
Delaware limited partnership, having an office at 000 Xxxxx Xxxxxx, Xxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Assignor") and XXXXXX XXXXXXXX, an individual, having
a residence at 00 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor owns a 99.99% limited partnership interest in Palm
Springs Mile Associates, Ltd., a Florida limited partnership ("Limited
Partnership");
WHEREAS, Limited Partnership owns undivided interests in those four
parcels comprising that certain real property located in Miami Dade County,
State of Florida as more particularly described on Schedule 1 annexed hereto
(the "Property");
WHEREAS, this Assignment is being made pursuant to that certain
Redemption Agreement dated as of April __, 2000 (the "Redemption Agreement") by
and between Assignor and Assignee, whereby in exchange for all of the units in
Assignor owned by Assignee, Assignor shall distribute to Assignee a 90% limited
partnership interest (the "Assigned Interest") in Limited Partnership having an
equity value and being encumbered by such debt as set forth in the Redemption
Agreement;
WHERAS, simultaneously with the distribution of the Assigned Interest
to Assignee, Assignor shall, pursuant to a separate redemption agreement of even
date with the Redemption Agreement, distribute to SL Florida LLC, a Delaware
limited liability company, 10% partnership interest in Limited Partnership in
exchange for all of the units in Assignor owned by it, and Limited Partnership
shall redeem the 0.01% partnership interest in Limited Partnership owned by
Philips Palm Springs Sub-VIII, Inc., the general partner of Limited Partnership,
for an amount of cash equal to the equity value of such interest as of
immediately prior to this Assignment;
WHEREAS, upon the distribution by Assignor of the Assigned Interest to
Assignee, Assignee shall no longer be a partner in Assignor; and
WHEREAS, the Amended and Restated Limited Partnership Agreement of
Limited Partnership (the "Partnership Agreement") shall be amended and restated
to reflect the transactions undertaken pursuant to the Redemption Agreement and
other redemption agreements of even date therewith.
NOW, THEREFORE, for Ten ($10) Dollars and other good and valuable
consideration, the mutual receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. All of the recitals set forth above are incorporated herein as if fully set
forth below.
2. Assignor represents and warrants to Assignee that: (a) Assignor is the
record owner of the Assigned Interest, and the Assigned Interest is free
and clear of any lien, claim or encumbrance; (b) Assignor has full right,
power and authority to perform the terms of this Assignment; and (c)
Assignor has not heretofore sold, assigned, transferred, encumbered,
pledged or hypothecated all or any part of the Assigned Interest.
3. Assignor hereby sells, grants, assigns, transfers and conveys to Assignee
all of its legal and beneficial right, title and interest in and to the
Assigned Interest which shall include, without limitation, all right, title
and interest, if any, of Assignor in and to the assets of Limited
Partnership and Assignor's right to receive any past, present or future
profits, gains, losses and distributions of any nature from Limited
Partnership. The Partnership Agreement shall be amended to reflect that
Assignee shall have an initial capital account balance immediately
following Assignor's distribution of the Assigned Interest to Assignee
equal to the equity value of such Assigned Interest as set forth in the
Redemption Agreement, and to reflect that Assignee shall have a "profit"
percentage interest of 90% in respect of the Assigned Interest.
4. Assignee hereby accepts the Assignment of the Assigned Interest and agrees
to assume, fulfill, perform and discharge all the obligations and
liabilities of Assignor with respect to the Assigned Interest, accruing or
obligated to be performed from and after the date hereof.
5. The Assigned Interest shall be subject to the amount of Limited
Partnership's debt as set forth in the Redemption Agreement, and such debt
shall have terms no less favorable to Limited Partnership than those set
forth on Schedule F to the Redemption Agreement.
6. This Assignment shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
7. This Assignment is the final expression of, and contains the entire
agreement between, the parties with respect to the subject matter hereof,
and supersedes all prior understandings with respect thereto.
8. This Assignment may not be modified, changed, supplemented or terminated,
nor may any obligations hereunder be waived, except by written instrument,
signed by the party to be charged or by its agent duly authorized in
writing, or as otherwise expressly permitted herein.
9. This Assignment shall be interpreted and enforced in accordance with the
laws of the State of New York without reference to principles of conflicts
of laws.
10. This Assignment may be executed in one or more counterparts, each of which
shall be deemed to be an original Assignment, but all of which, taken
together, shall constitute but one and the same Assignment.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the date first written above.
WITNESS: ASSIGNOR:
------- --------
PHILIPS INTERNATIONAL REALTY, L.P., a
Delaware limited partnership
By: Philips International Realty
Corp., a Maryland corporation, its
general partner
By:
------------------------------------ -----------------------------
Print Name: Name:
------------------------- Title:
WITNESS: ASSIGNEE:
------- --------
------------------------------------ --------------------------------
Print Name: XXXXXX XXXXXXXX
-------------------------
By signing below, Limited Partnership consents to Assignor's assignment
of the Assigned Interest to Assignee pursuant to this Assignment and the
Redemption Agreement and hereby agrees to amend the Partnership Agreement in
accordance with this Assignment and the Redemption Agreement and to admit
Assignee as a limited partner of Limited Partnership pursuant to the Partnership
Agreement, as may be amended from time to time.
PALM SPRINGS MILE ASSOCIATES, LTD.,
a Florida limited partnership
By: Philips Palm Springs Sub-VIII, Inc.,
a Delaware corporation, its general partner
By:
-----------------------------
Name:
Title:
SCHEDULE 1
LEGAL DESCRIPTION OF THE PROPERTY
[See attached]
SCHEDULE D
GENERAL RELEASE
FROM OPERATING PARTNERSHIP
RELEASE
TO ALL WHOM THESE PRESENTS
SHALL COME OR MAY CONCERN, KNOW THAT
PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership, and PHILIPS
INTERNATIONAL REALTY CORP., a Maryland corporation, having an office at 000
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on behalf of themselves and
each of their respective direct or indirect subsidiaries or other affiliates,
successors, predecessors and permitted assigns
collectively as RELEASOR,
for good and valuable consideration, receipt of which is hereby acknowledged,
release and discharge
XXXXXX XXXXXXXX, an individual a residence at 00 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx 00000, and his direct or indirect subsidiaries, affiliates or partners,
successors, predecessors and permitted assigns
collectively as RELEASEE
from all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever, in law, admiralty or equity, which
against RELEASEE, RELEASOR, ever had, now have or hereafter can, shall or may,
have for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this Release and relating to,
arising under or in connection with that certain Redemption Agreement dated as
of April __, 2000 by and among RELEASOR and RELEASEE.
This RELEASE may not be changed orally.
[The remainder of this page is intentionally left blank.]
In Witness Whereof, RELEASOR has hereunto set RELEASOR's hand and seal on this
___ day of April, 2000.
WITNESS: RELEASOR:
------- --------
PHILIPS INTERNATIONAL REALTY, L.P., a
Delaware limited partnership
By: Philips International Realty
Corp., a Maryland corporation, its
general partner
By:
------------------------------------ -----------------------------
Print Name: Name:
------------------------- Title:
PHILIPS INTERNATIONAL REALTY CORP., a
Maryland corporation
By:
------------------------------------ -----------------------------
Print Name: Name:
------------------------- Title:
WITNESS: RELEASEE:
------- --------
------------------------------------ ------------------------------------
Print Name: XXXXXX XXXXXXXX
-------------------------
SCHEDULE E
GENERAL RELEASE
FROM PILEVSKY
RELEASE
TO ALL WHOM THESE PRESENTS
SHALL COME OR MAY CONCERN, KNOW THAT
XXXXXX XXXXXXXX, an individual a residence at 00 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx 00000, and his direct or indirect subsidiaries, affiliates or partners,
successors, predecessors and permitted assigns
collectively as RELEASOR,
for good and valuable consideration, receipt of which is hereby acknowledged,
release and discharge
PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership, and PHILIPS
INTERNATIONAL REALTY CORP., a Maryland corporation, having an office at 000
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on behalf of themselves and
each of their respective direct or indirect subsidiaries or other affiliates,
successors, predecessors and permitted assigns
collectively as RELEASEE
from all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever, in law, admiralty or equity, which
against RELEASEE, RELEASOR, ever had, now have or hereafter can, shall or may,
have for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this Release and relating to,
arising under or in connection with that certain Redemption Agreement dated as
of April __, 2000 by and among RELEASOR and RELEASEE.
This RELEASE may not be changed orally.
[The remainder of this page is intentionally left blank.]
In Witness Whereof, RELEASOR has hereunto set RELEASOR's hand and seal on this
___ day of April, 2000.
WITNESS: RELEASOR:
------- --------
------------------------------------ ------------------------------------
Print Name: XXXXXX XXXXXXXX
-------------------------
WITNESS: RELEASEE:
------- --------
PHILIPS INTERNATIONAL REALTY, L.P.,
a Delaware limited partnership
By: Philips International Realty
Corp., a Maryland corporation, its
general partner
By:
------------------------------------ ---------------------------------
Print Name: Name:
------------------------- Title:
PHILIPS INTERNATIONAL REALTY CORP.,
a Maryland corporation
By:
------------------------------------ ---------------------------------
Print Name: Name:
------------------------- Title:
SCHEDULE F
TERMS OF DEBT FINANCING
1. Borrower: Palm Springs Ltd
2. Lender: Prudential Securities Credit Corporation, a Delaware
corporation
3. Loan: $ 88M (estimated)
4. Security: First mortgage lien encumbering the Property
5. Securitization:
(a) Property: "Philips Plaza", located in Hialeah, Florida
Rate: Fixed, 225 basis points above 10 year treasury, at 30
year amortization
LTV: 75/1.3 x DSC
Loan: $ 7.5M (estimated)
(b) Property: "Shops at 00xx Xxxxxx", located in Hialeah, Florida
Rate: Fixed, 205 basis points above 10 year treasury, at 30
year amortization
LTV: 80/1.25 x DSC
Loan: $ 21.0M (estimated)
(c) Terms for both properties:
-10 year term
-no points
-Lender's standard securitization requirements regarding
structure and administration of loan
-"non recourse"
-no cross collateralization
6. Bridge Loan
Properties: "Mall on the Mile", located in Hialeah, Florida.
"Palm Springs Village", located in Hialeah, Florida.
Loan: $60.1M (estimated)
Terms:
-Floating, 200 basis points above LIBOR
-1 year initial term and 1 point fee, or 1 1/2 initial term
and 0 0/0 xxxxx xxx (xxxxxxxxx xxxxxxxx) -xx amortization
-construction loan available -10% recourse/guaranty, subject
to asset sale and elimination of 70% LTV (quarterly review)
