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Exhibit 10.2
Subscription Agreement
OLY HIGHTOP HOLDING, L.P.
THE SECURITIES REFERRED TO HEREIN ARE BEING ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS. UNDER SUCH ACT AND SUCH LAWS, THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED, OR OTHERWISE DISPOSED OF UNLESS A
REGISTRATION STATEMENT IS IN EFFECT OR UNLESS AN EXEMPTION FROM REGISTRATION IS
AVAILABLE. IN ADDITION, THE SECURITIES ARE SUBJECT TO OTHER RESTRICTIONS ON
TRANSFERABILITY DESCRIBED IN THE PARTNERSHIP AGREEMENT RELATING TO THE
SECURITIES.
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SUBSCRIPTION AGREEMENT
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THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made by and between Oly
Hightop Holding, L.P., a Delaware limited partnership (the "Partnership"), and
Westdale Properties America I, Ltd. (the "Subscriber").
RECITALS
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A. The Subscriber desires to acquire a limited partnership interest in,
and to become a limited partner of, the Partnership, which is governed by that
certain Agreement of Limited Partnership of the Partnership, a copy of which is
attached hereto as Exhibit A, in its current form or with such amendments as the
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parties may mutually agree upon (the "Partnership Agreement").
B. Capitalized terms not otherwise defined herein shall have the meanings
specified in the Partnership Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein, the parties hereto agree as follows:
ARTICLE I
SUBSCRIPTION FOR INTERESTS
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1.1 Subscription. Subject to and in accordance with the respective terms
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and conditions of this Agreement and the Partnership Agreement, the Subscriber
hereby subscribes to become a limited partner of the Partnership. The
Subscriber's aggregate capital commitment to the Partnership (the "Subscription
Commitment") is set forth on the Subscriber's signature page hereto.
1.2 Closing. This Agreement and the Subscriber's Subscription Commitment
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shall become effective as of the date the Subscriber's subscription is accepted
by the General Partner. It is the intention of the General Partner that the
funding of the initial capital call under this Agreement shall occur
concurrently with the consummation of the merger of ▇▇▇▇▇▇ Residential
Properties, Inc. with and into Oly Hightop Corporation pursuant to the Agreement
and Plan of Merger dated as of the date hereof among ▇▇▇▇▇▇ Residential
Properties, Inc., Oly Hightop Corporation and Oly Hightop Parent, L.P. (the
"Merger Agreement"). The General Partner may call for the initial capital
contribution of the Subscriber under this Agreement (the "Initial Capital
Contribution") prior to the Termination Date (as defined herein) upon at least
10 Business Days' prior written notice; provided, however, that the Subscriber
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shall not be obligated to deliver its Initial Capital Contribution to the
Partnership prior to the closing date under the Merger Agreement (the "Closing
Date"). Such Initial Capital Contribution shall be utilized by the Partnership
as set forth in the Partnership Agreement. The Initial Capital Contribution of
the Subscriber shall be made in immediately available funds on or before 10:00
a.m., Dallas, Texas time, on the Closing Date by wire transfer to an account
designated by the General Partner in the notice calling for such contribution or
in such manner as the General Partner and the Subscriber shall mutually agree.
Concurrently with the closing under
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the Merger Agreement and upon payment of the Initial Capital Contribution, the
Subscriber and the Partnership shall execute an amendment to the Partnership
Agreement admitting the Subscriber as a limited partner of the Partnership. The
amount of the Subscriber's Initial Capital Contribution and its initial
Percentage Interest will be shown on Exhibit "C" to the Partnership Agreement.
The balance of the Subscriber's Subscription Commitment will be shown on Exhibit
"C" to the Partnership Agreement as the Additional Mandatory Contribution. The
Subscriber hereby agrees to make the capital contributions to the Partnership
required by this Agreement and the Partnership Agreement in accordance with the
terms and conditions of this Agreement and the Partnership Agreement.
1.3 Conditions to Admission. The Subscriber understands and agrees that
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it will not be admitted as a limited partner of the Partnership until such
admission is recorded on the books and records of the Partnership. The
Subscriber's admission as a limited partner of the Partnership is also subject
to satisfaction or waiver of each of the following conditions, which conditions
may be waived in whole or in part by the General Partner:
(a) Partnership Agreement. The Partnership Agreement shall have been
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executed by the Subscriber and delivered to the General Partner.
(b) Capital Contribution. The Partnership shall have received the Initial
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Capital Contribution from the Subscriber.
1.4 Termination of this Agreement. This Agreement shall terminate without
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any further obligation or liability on the part of the General Partner and the
Subscriber on the date of the termination of the Merger Agreement (the
"Termination Date").
ARTICLE II
PARTNERSHIP AGREEMENT
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2.1 Partnership Agreement. From and after the Closing Date, the
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Subscriber hereby adopts, accepts and agrees to be bound by all terms and
conditions of the Partnership Agreement and to perform all obligations therein
imposed upon the Subscriber in its capacity as a limited partner of the
Partnership. No certificate or other evidence of ownership of the Partnership
Interest need be issued by the Partnership to reflect the limited partnership
interest of the Subscriber in the Partnership, but an entry reflecting such
interest shall be made on the books and records of the Partnership, and the
General Partner shall deliver an executed counterpart of the Partnership
Agreement to the Subscriber. The Subscriber agrees to execute, acknowledge and
swear to such certificates or documents as may from time to time be necessary
for the contemplated activities of the Partnership pursuant to the Partnership
Agreement and this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
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OF THE SUBSCRIBER
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3.1 The Subscriber hereby represents and warrants to the Partnership as
follows:
(a) Power and Authority; Compliance with Laws and Other Instruments.
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(i) The Subscriber is authorized to enter into this Agreement, the
Partnership Agreement, and such other agreements, certificates, or other
instruments as are executed by or on behalf of the Subscriber in connection
with its obligations under the Partnership Agreement or in connection with
this subscription (collectively, "Subscriber Agreements"), to perform its
respective obligations under each Subscriber Agreement, and to consummate
the transactions that are the respective subjects of any Subscriber
Agreement. The signature of the respective individual signing any
Subscriber Agreement as, or on behalf of, the Subscriber is binding upon
the Subscriber. Each of the Subscriber Agreements has been, or will be,
duly and validly authorized, executed and delivered by the Subscriber and,
assuming the due authorization, execution and delivery by each of the other
parties thereto, constitutes, or will constitute, a legal, valid and
binding obligation of the Subscriber enforceable against it in accordance
with its terms, except to the extent that such enforcement may be subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good faith
and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(ii) The execution and delivery of each of the Subscriber Agreements
by the Subscriber do not, and the performance of transactions contemplated
hereby and thereby by the Subscriber will not, subject to compliance by the
Partnership with all applicable federal and state securities laws, (A)
conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to the Subscriber, (B) violate, conflict with, result in
any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any
provision of the Articles or Certificate of Incorporation or Bylaws or
equivalent organizational documents of the Subscriber if not an individual,
or any note, indenture, agreement, lease, license, permit or other
instrument or obligation to which the Subscriber is a party or by which the
Subscriber is bound or affected, or (C) require any consent, approval,
authorization or permit from any governmental regulatory body, except where
such breach or default or failure to obtain such consents, approvals,
authorizations or permits or to make such filings would not prevent or
delay the performance by the Subscriber of its obligations under the
Subscriber Agreements.
(b) Accredited Investor. The Subscriber is an "Accredited Investor" as
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defined in Rule 501(a) of Regulation D promulgated under the Securities Act of
1933, as amended (the "Securities Act").
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(c) Investment Intent. The Subscriber is acquiring the Partnership
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Interest for its own account for investment, and not with a view to any
distribution, resale, subdivision, or fractionalization thereof in violation of
the Securities Act or any other applicable domestic or foreign securities law,
and the Subscriber has no present plans to enter into any contract, undertaking,
agreement, or arrangement for any such distribution, resale, subdivision, or
fractionalization. In order to induce the Partnership to issue and sell the
Partnership Interest subscribed for hereby to the Subscriber, it is agreed that
the Partnership will have no obligation to recognize the ownership, beneficial
or otherwise, of the Partnership Interest by anyone but the Subscriber, unless
and until the Subscriber sells or otherwise transfers such Partnership Interest
in compliance with the Partnership Agreement.
(d) Access. The Subscriber has carefully reviewed and is familiar with the
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terms of each Subscriber Agreement. The General Partner has made available to
the Subscriber or its representatives all agreements, documents, records, and
books that the Subscriber or its representatives have requested relating to an
investment in the Partnership. The Subscriber has had a full opportunity to ask
questions of and receive answers from the Partnership or a person acting on
behalf of the Partnership, or the General Partner, concerning the terms and
conditions of this investment, and all questions asked by the Subscriber have
been adequately answered to the full satisfaction of the Subscriber.
(e) Illiquidity; Risk. The Subscriber understands that substantial
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restrictions will exist on transferability of interests in the Partnership, that
no market for resale of any such interest exists or is expected to develop, and
that the Subscriber may not be able to liquidate its investment in the
Partnership. The Subscriber understands that any instruments representing an
interest in the Partnership may bear legends restricting the transfer thereof.
The Subscriber understands that investment in the Partnership entails a very
high degree of risk and understands fully the risks associated with the
operation of the Partnership and the Subscriber's investment in the Partnership.
(f) Economic Loss and Sophistication. The Subscriber is able to bear the
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economic risk of losing its entire investment in the Partnership. The
Subscriber's overall commitment to investments which are not readily marketable
is not disproportionate to its net worth. The Subscriber's investment in the
Partnership will not cause such overall commitment to become excessive. The
Subscriber has such knowledge and experience in financial and business matters
that it is capable of evaluating the risks and merits of this investment or has
retained advisors who have such knowledge and experience.
(g) No Registration of Interests. The Subscriber understands and agrees,
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and acknowledges that (i) it has been disclosed to the Subscriber that the
Partnership Interest has not been registered under the Securities Act or
applicable state securities laws and that the economic risk of the investment
must be borne indefinitely by the Subscriber, and the Partnership Interest
cannot be sold, pledged, hypothecated or otherwise transferred unless
subsequently registered under the Securities Act and such laws, or an exemption
from such registration is available, and there is compliance with the
requirements of the Partnership Agreement; (ii) such registration under the
Securities Act and such laws is unlikely at any time in the future; (iii) the
Partnership is not obligated to file a registration statement under the
Securities Act or any state securities laws except as otherwise provided in the
Partnership Agreement; (iv) the benefits of Rule 144 under the Securities
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Act governing the possible disposition of the Partnership Interest are not
currently available or anticipated to be available in the future, and the
Partnership has not covenanted to take any action necessary to make such Rule
144 available for a limited resale of the Partnership Interest; and (v) it is
not anticipated that there will be any market for resale of the Partnership
Interest.
(h) State of Residence. The address set forth below the Subscriber's
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signature hereto is its true and correct residence or principal place of
business, and the Subscriber has no present intention of becoming a resident of
or moving its principal place of business to any other state or jurisdiction.
(i) Effect and Time of Representations. The foregoing representations and
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warranties are true and accurate as of the date hereof and shall be true and
accurate as of the Closing Date. If in any respect such representations and
warranties shall not be true and accurate prior to the Closing Date, the
Subscriber will give prior written notice of such fact to the Partnership
specifying which representations and warranties are not true and accurate and
the reasons therefor.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP
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4.1 The Partnership hereby represents and warrants to the Subscriber as
follows:
(a) Power and Authority. The Partnership is authorized to enter into each
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Subscriber Agreement to which it is a party, to perform its respective
obligations under each such Subscriber Agreement, and to consummate the
transactions that are the respective subjects of each such Subscriber Agreement.
The signature of the respective individual signing any Subscriber Agreement on
behalf of the Partnership is binding upon the Partnership. Each of the
Subscriber Agreements has been, or will be, duly and validly authorized,
executed and delivered by the Partnership and, assuming the due authorization,
execution and delivery by each of the other parties thereto, constitutes, or
will constitute, a legal, valid and binding obligation of the Partnership
enforceable against it in accordance with its terms, except to the extent that
such enforcement may be subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(b) Compliance with Laws and Other Instruments. The execution and delivery
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of each of the Subscriber Agreements by the Partnership do not, and the
performance of transactions contemplated hereby and thereby by the Partnership
will not, subject to compliance by the Subscriber with all applicable federal
and state securities laws, (i) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Partnership, (ii)
violate, conflict with, result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any provision of the Certificate of Limited Partnership of the
Partnership or the Partnership Agreement, or any note, indenture, agreement,
lease, license, permit or other instrument
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or obligation to which the Partnership is a party or by which the Partnership is
bound or affected, or (iii) require any consent, approval, authorization or
permit from any governmental regulatory body, except where such breach or
default or failure to obtain such consents, approvals, authorizations or permits
or to make such filings would not prevent or delay the performance by the
Partnership of its obligations under the Subscriber Agreements.
(c) Effect and Time of Representations. The representations and
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agreements of the Partnership set forth in this Agreement are true, and have
been complied with, as of the Closing Date. If in any respect such
representations and agreements shall not be true, or shall not have been
complied with, as of the Closing Date, the Partnership shall promptly give
written notice of such fact to the Subscriber and shall specify which
representations and agreements are not true or have not been complied with and
the reasons therefor.
ARTICLE V
MISCELLANEOUS
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5.1 Indemnification. The Subscriber acknowledges and understands the
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meaning and legal consequences of the representations, warranties and covenants
set forth herein and that the Partnership and the General Partner have relied or
will rely upon such representations, warranties and covenants of the Subscriber,
and the Subscriber hereby agrees to indemnify and hold harmless the Partnership
and the General Partner and their respective general partners, officers,
directors, controlling persons, agents and employees, from and against any and
all loss, claim, damage, liability or expense, and any action in respect
thereof, joint or several, to which any such person may become subject, due to
or arising out of a breach of any such representation, warranty or covenant,
together with all reasonable costs and expenses (including attorneys' fees)
incurred by any such person in connection with any action, suit, proceeding,
demand, assessment or judgment incident to any of the matters so indemnified
against. All representations, warranties and covenants contained in this
Agreement, and the indemnification contained herein, shall survive the Closing
Date.
5.2 Indemnification by the Partnership. The Partnership acknowledges and
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understands the meaning and legal consequences of the representations,
warranties and covenants set forth herein and that the Subscriber has relied or
will rely upon such representations, warranties and covenants of the
Partnership, and the Partnership hereby agrees to indemnify and hold harmless
the Subscriber and its respective partners, officers, directors, controlling
persons, agents and employees, from and against any and all loss, claim, damage,
liability or expense, and any action in respect thereof, joint or several, to
which any such person may become subject, due to or arising out of a breach of
any such representation, warranty or covenant, together with all reasonable
costs and expenses (including attorneys' fees) incurred by any such person in
connection with any action, suit, proceeding, demand, assessment or judgment
incident to any of the matters so indemnified against. All representations,
warranties and covenants contained in this Agreement, and the indemnification
contained herein, shall survive the Closing Date.
5.3 Amendments. This Agreement may not be amended, changed, supplemented,
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waived or otherwise modified or terminated except by an instrument in writing
signed by the parties hereto.
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5.4 Assignment. The terms and conditions of this Agreement shall inure to
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the benefit of and be binding upon the parties hereto and their permitted
successors and assigns; provided, however, that no party hereto shall have the
right to assign this Agreement without the consent of the parties hereto.
5.5 Notices. All notices and other communications given or made pursuant
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hereto shall be in writing and shall be deemed to have been duly given upon
receipt, if delivered personally, mailed by, nationally recognized overnight
courier service, registered or certified mail (postage prepaid, return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like changes of address) or sent by
electronic transmission to the telecopier number specified below:
(a) If to the Partnership, to:
Oly Hightop Holding, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopier No.: 214/740-7340
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Subscriber, to the address or telecopy number set forth
below the Subscriber's signature hereto.
5.6 Counterparts. This Agreement may be executed and delivered (including
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by facsimile transmission) in multiple counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered (including by facsimile transmission) shall be deemed to be an
original but all of which taken together shall constitute one and the same
Agreement.
5.7 Headings. Headings contained in this Agreement are inserted only as a
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matter of convenience and in no way define, limit, or extend the scope or intent
of this Agreement or any provisions hereof.
5.8 Governing Law. THIS AGREEMENT AND ALL DISPUTES HEREUNDER SHALL BE
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GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE. ANY SUIT OR PROCEEDING BROUGHT
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HEREUNDER SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED
IN THE STATE OF TEXAS.
5.9 Entire Agreement. This Agreement contains the entire understanding
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of the parties hereto respecting the subject matter hereof and supersedes all
prior agreements, discussions and understandings with respect thereto.
5.10 Cumulative Rights. The rights of the parties hereto under this
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Agreement are cumulative and in addition to all similar and other rights of the
parties under other agreements.
5.11 Number; Gender; Without Limitation. Pronouns, wherever used in this
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Agreement, and of whatever gender, shall include persons of every kind and
character, and the singular shall include the plural whenever and as often as
may be appropriate. Any reference herein to "including" and words of similar
import refer to "including without limitation."
5.12 Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
5.13 No Third Party Beneficiaries. This Agreement is not intended to be
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for the benefit of and shall not be enforceable by any person or entity who or
which is not a party hereto.
5.14 No Amendment. This Agreement is not intended and shall not be deemed
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to amend or modify the terms of any agreement between the parties hereto or any
of their affiliates.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Subscriber has executed this Agreement as of
September 23, 1999, to be effective as of the Closing Date.
SUBSCRIBER:
Subscription Commitment: WESTDALE PROPERTIES AMERICA I, LTD., a
Texas limited partnership
$12,000,000.00 By: JGB Ventures I, Ltd., a Texas limited
partnership, its general partner
By: JGB Holdings, Inc., a Texas
corporation, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 214/887-1575
Subscription of Westdale Properties America I, Ltd. accepted as of the 23rd
day of September, 1999, to be effective as of the Closing Date.
PARTNERSHIP:
OLY HIGHTOP HOLDING, L.P.
By: OLY HIGHTOP, LLC, its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
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EXHIBIT A
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PARTNERSHIP AGREEMENT
