EXHIBIT 10.23
PURCHASE AND SALE AGREEMENT
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(MEMBERSHIP INTERESTS)
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), made and entered into
as of the 31 day of January, 2002 (the "Effective Date"), between SUNSET KPT
INVESTMENT, INC., a Delaware corporation ("Seller"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
("Purchaser").
RECITALS
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A. Seller is the sole member of RMC/Konover Property Trust LLC, a Maryland
limited liability company (the "Company").
B. Purchaser wishes to purchase from Seller all of Seller's right, title
and interest (the "Member Interest") as the sole member of the Company.
NOW, THEREFORE, in consideration of the Recitals set forth above
that are made a part of this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Sale of Member Interest. Subject to the terms and conditions herein
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contained, at Closing (as hereinafter defined), Seller hereby agrees to assign,
transfer and set over to Purchaser Seller's entire right, title and interest in
the Member Interest. The Company is and has for the last three years been
engaged in the business of providing various property management, leasing,
consulting, brokerage and related services (hereinafter referred to as the
"Business" ). The Company owns or leases the assets used in the Business, which
include the Property Management Contracts, the Other Contracts, the Tangible
Personal Property, the Service Contracts, the Leases, the Licenses, the Books
and Records and the Software hereinafter described (collectively, the "Assets").
It is the intention of the parties that, from and after the Closing,
the Company will retain that the portion of the Business operated from the
office of the Company located in Tampa, Florida (the "Tampa Office") and all
Property Management Contracts, Other Contracts, Tangible Personal Property,
Service Contracts, Leases, Licenses and other Assets of the Company used in
connection therewith (with the exception of any Intellectual Property Rights
including or referring, in whole or in part, to "Konover", "Konover Property
Trust" or "KPT"), along with all accounts receivable and other current assets
associated therewith and the Property Management Agreement associated with the
Managed Property known as "Spanish River" (the "Retained Assets"), together with
all accounts payable and other current liabilities, and all other obligations
associated therewith set forth on Schedule 2.1 (the "Retained Obligations"), and
that the portion of the Business operated from the office of the Company located
in Sunrise, Florida (the "Sunrise Office") and all Property Management Contracts
(with the exception of the Property Management Agreement associated with the
Managed Property known as "Spanish River"), Other Contracts, Tangible Personal
Property, Service Contracts, Leases, Licenses and other Assets of the Company
used in connection therewith, along with all accounts receivable and other
current assets associated therewith (the "Transferred Assets"), together with
all accounts payable and other current liabilities, and all other obligations
associated therewith set
forth on Schedule 2.2 (the "Transferred Obligations") shall be assigned and
transferred to, and thereafter operated by, Seller or its designated Affiliate.
For purposes of this Agreement, an "Affiliate" is (i) a person who is a member
of the family of another person, (ii) an entity owned or controlled, directly or
indirectly, by another person or entity, (iii) a person or entity owning or
controlling another entity, or (iv) an entity under common control with another
entity.
2. Representations, Warranties and Covenants.
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2.1 Seller hereby represents, warrants to and covenants with Purchaser as
follows, each of which shall be true, correct and complete as of the Effective
Date and as of the Closing Date:
(a) Seller is the sole and lawful owner of the Member Interest, free
and clear of any claim, lien, encumbrance or security interest of any other
person or entity whatsoever.
(b) Seller has full power and authority to execute and deliver this
Agreement and the other documents and instruments to be executed and delivered
hereunder by Seller (collectively, "Seller's Closing Documents") and to carry
out the transactions contemplated hereby. Seller's Closing Documents have been
or at Closing will be duly and validly authorized, executed and delivered by
Seller and no other action of any kind shall be necessary in connection
therewith. Seller's Closing Documents will constitute the legal, valid and
binding obligation of Seller, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights generally.
(c) Seller shall, at its expense, execute and deliver such
additional documents, or join with Purchaser in taking any other action
reasonably requested by Purchaser to assign and convey the Member Interest to be
granted to Purchaser under this Agreement.
2.2 Purchaser hereby represents, warrants to and covenants with Seller as
follows, each of which shall be true, correct and complete as of the Effective
Date and as of the Closing Date:
(a) Purchaser has full power and authority to execute and deliver
this Agreement and the other documents and instruments to be executed and
delivered hereunder by Purchaser (collectively, "Purchaser's Closing Documents")
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and to carry out the transactions contemplated hereby. Purchaser's Closing
Documents have been or will at Closing be duly and validly authorized, executed
and delivered by Purchaser and no other action of any kind shall be necessary in
connection therewith. Purchaser's Closing Documents will constitute the legal,
valid and binding obligation of Purchaser, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights generally.
(b) Purchaser shall, at its expense, execute and deliver such
additional documents, or join with Purchaser in taking any other action
reasonably requested by Seller to consummate and further evidence the
transactions contemplated under this Agreement.
2.3 Purchaser hereby acknowledges that Purchaser is the principal
operating person of the Company and in such capacity is knowledgeable about the
operations and affairs of the
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Company and its Business and Assets. In that context, Purchaser hereby makes the
following representations and warranties to Seller, each of which shall be true,
correct and complete as of the Effective Date and as of the Closing Date:
(a) Transaction not a Breach. Except as set forth on Schedule 1,
neither the execution, delivery or performance by Purchaser of this Agreement
and the Purchaser's Closing Documents nor the consummation of the transactions
contemplated thereby will:
(i) To the knowledge of Purchaser, violate or conflict with or
result in a breach of any provision of any federal, state or local law, code or
ordinance or any rule or regulation (each, a "Law" and, collectively, "Laws")
promulgated thereunder by any domestic, state, local or foreign government or
any subdivision, agency , authority or instrumentality thereof (each, a
"Governmental Authority"), or any order, permit, judgment, injunction, decree or
other decision of any court or other tribunal or any Governmental Authority
(each, an "Order" and collectively, "Orders") binding on the Company;
(ii) To the knowledge of Purchaser, constitute a default (or
an event which, with or without notice or the lapse of time or both, would
constitute a default) under the organizational documents of the Company or under
any, contract, agreement, commitment, indenture, mortgage, note, bond, lease,
license or other instrument or obligation to which the Company is a party
(collectively, the "Material Obligations") or by which any of the Assets are
bound (subject to obtaining any Required Consents as more particularly described
in Section 2.3(w), below);
(iii) Constitute an event which would permit any party to
terminate any agreement or accelerate the maturity of any indebtedness or other
obligation which may be the obligation of the Company or may encumber or
materially impact any Managed Property (as defined in Section 2.3(g), below) or
materially modify any Retained Obligations or any Transferred Obligations
(subject to obtaining any Required Consents); or
(iv) Result in the creation or imposition of any mortgage,
lien, security interest, claim, charge, restriction, or encumbrance (each, a
"Lien" and, collectively, "Liens") upon any of the Assets.
(b) Title to Assets. The Company or an Affiliate of Seller has good
and marketable title to the Assets. Upon consummation of the Transactions in
accordance with the terms hereof, the Company will be vested with good and
marketable title to the Retained Assets, free and clear of all Liens other than
those set forth on Schedule 2, and Seller will be vested with good and
marketable title to the Transferred Assets, free and clear of all Liens. There
are no other Material Obligations other than the Service Contracts (as
hereinafter defined), the Retained Obligations set forth on Schedule 2.1, and
the Transferred Obligations set forth on Schedule 2.2.
(c) Litigation. There is no action, arbitration, audit, hearing,
investigation, litigation, suit or other proceeding (each, a "Proceeding")
pending against or affecting the Company or any of its assets before any court,
arbitrator or Governmental Authority, nor to Purchaser's knowledge has the
commencement of any such Proceeding been threatened, other than three (3)
routine Proceedings alleging violations of the Americans With Disabilities Act
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relating to three (3) of the Managed Properties. To Purchaser's knowledge, no
person has any claim of any kind or nature against the Company or its Assets,
contingent or otherwise, whether asserted or unasserted, arising out of or in
connection with any facts or circumstances occurring prior to the Closing,
including, without limitation, (i) claims for acts, omissions, breaches or
defaults under or in connection with any Transferred Assets or Transferred
Obligations, or (ii) claims under any Laws, including environmental, antitrust,
civil rights, health, safety, or labor, discrimination or other employment
practices.
(d) Financial Statements. The December 31, 2001 unaudited balance
sheet (the "Balance Sheet") and other financial statements attached hereto as
Schedule 3 are true, accurate and complete copies of the Company's financial
statements, for the periods identified therein (the "Financial Statements"). The
Financial Statements are prepared on an accrual basis method of accounting
consistently applied during the periods involved. The Financial Statements
fairly present the financial position, results from operations and cash flow of
the Company in all material respects for the periods set forth therein. The
Financial Statements disclose in an adequate fashion all outstanding amounts due
to the Company but not yet received, and all outstanding amounts which the
Company is obligated to pay but have not been satisfied. Except as set forth in
the Financial Statements, the Company does not have any liability for borrowed
monies or on account of any other claim, liability or obligation, actual or
contingent, asserted or unasserted, and neither Purchaser nor any person or
entity acting on Purchaser's behalf has obligated the Company with respect to
any third party obligations or debts which would be binding on or the
responsibility of Seller following the Closing. Since December 31, 2001,
Purchaser has conducted the Business only in the ordinary course, and (A) there
have occurred no material changes in the Company's financial condition from that
disclosed on the Financial Statements, (B) there has not been any material
commitment, contractual obligation, borrowing, capital expenditure or
transaction entered into by Purchaser, and (C) there has not been any material
change in the Company's accounting principles, practices or methods. The parties
agree that the forgoing representations and warranties do not extend to any
adjustments incorporated into and reflected in the Financial Statements to the
extent that such adjustments were made at the direction of Seller and its
auditors and not as a result of transactions or events involving the conduct of
the Business.
(e) No Material Adverse Change. Since the date of the Financial
Statements, there has been no material adverse change in the Business, the
Assets, the Retained Obligations, the Transferred Obligations or the operations
of the Company. Since such date Purchaser has been operating the Business in the
ordinary course of business, and, has not (A) incurred any secured indebtedness
or suffered any liens against any of the Assets or (B) purchased or committed to
purchase more than $10,000 in fixed assets. For purposes of this Agreement,
"Material Adverse Change" or "Material Adverse Effect" means facts or
circumstances which individually or in the aggregate would (1) have a material
adverse effect on the Business as a whole, (2) cause a default under any
Material Obligations, or (3) place the Company or Seller at any material risk of
being prohibited or restricted in any material respect from using the Retained
Assets or the Transferred Assets, respectively, in the conduct of that portion
of the Business retained by the Company, or that portion of the Business to be
assigned to Seller hereunder.
(f) Compliance With Laws and Orders. To Purchaser's knowledge, the
Company has complied, and is in compliance with all Laws and Orders applicable
to it or to the
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operation of the Business and has not received any notice of any alleged claim
or threatened claim, violation of, or liability or potential responsibility
under, any such Law or Order which has not heretofore been cured and for which
there is any remaining liability.
(g) Property Management Contracts. Schedule 4 is a true and complete
list of all agreements, understandings, relationships, commitments or other
contractual obligations, written or oral (each, a "Contract" and, collectively,
"Contracts") pursuant to which the Company provides property management services
in the conduct of the Business (collectively, the "Property Management
Contracts"). True, correct and complete copies of the Property Management
Contracts have previously been given to Seller by Purchaser. Also set forth on
Schedule 4 is the name and address of the owner of each property managed by the
Company (each, a "Managed Property" and, collectively, the "Managed
Properties"). Unless specified in Schedule 4, all Property Management Contracts
are terminable by either party to those Contracts on not more than thirty (30)
days notice. To the best of Purchaser's knowledge, no Managed Property
materially violates applicable Law or is subject or threatened to be subject to
any condemnation or rezoning Proceeding. Except as set forth in Schedule 4.2,
Purchaser has no knowledge of any Managed Properties which the owner intends to
sell during the current calendar year. The assignment to Seller of those
Property Management Contracts set forth in Schedule 4.1 is not permitted by the
terms of the applicable Property Management Contract without the consent of the
owner of the related Managed Property.
(h) Other Contracts. Schedule 5 is a true and complete list of all
Contracts of the Company relating to the provision of brokerage, consulting,
construction, sales, marketing, leasing, tenant representation or other services
(collectively, the "Other Contracts"). True, correct and complete copies of all
Other Contracts have previously been given to Seller by Purchaser. Unless
specified in Schedule 5, all Other Contracts are terminable by Purchaser on not
more than thirty (30) days notice. The assignment to Seller of those Other
Contracts set forth in Schedule 5.1 is not permitted by the terms of the
applicable Contract without the consent of the contracting party.
(i) Absence of Default or Notice. Except as set forth on Schedule 6,
all of the Property Management Contracts and the Other Contracts are in full
force and effect and neither the Company nor, to the knowledge of Purchaser, any
other party thereto is (with or without notice or lapse of time or both) in
breach or default in any respect thereunder and no fact or circumstance exists
which, with or without notice or the lapse of time or both, would result in a
breach or default or give rise to any right of set-off or counterclaim with
respect to such Contracts. Except as set forth on Schedule 6, to the knowledge
of Purchaser, neither the Company nor any other party to any such listed
Property Management Contract or Other Contract has notified the other of any
intent or desire to terminate such Property Management Contract or Other
Contract or to modify it in any material respect.
(j) Tangible Personal Property. Schedule 7 sets forth a true and
complete list of all motor vehicles, machinery and equipment, furniture,
supplies and all other tangible personal property (the "Tangible Property")
owned or, as designated in Schedule 7.1, leased by the Company in connection
with the Business (except cash and cash equivalents). All other tangible
personal property used by the Company in the conduct of the Business and located
on-site at the Managed Properties is owned by the owners of the Managed
Properties. Purchaser has
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good title to, or a valid and enforceable leasehold interest in, each item of
Tangible Property, free and clear of any Liens, except for Liens which shall be
removed at Purchaser's cost at or prior to Closing. Except as disclosed on
Schedule 7.2, all such Tangible Property has been well maintained and is in good
operating condition and repair, ordinary wear and tear excepted, and is free of
defects which would interfere with the use thereof in normal operations. The
assignment and conveyance to Seller of the Tangible Property set forth in
Schedule 7.3 is permitted without the approval or consent of any party unless
stated on Schedule 7.3.
(k) Service Contracts. Schedule 8 sets forth a list of all equipment
leases, service contracts, maintenance agreements, and similar obligations
relating to Tangible Assets or the operations of the Company (collectively, the
"Service Contracts"). True, correct and complete copies of the Service Contracts
related to the Tangible Property have been provided to Seller prior to the date
hereof. Each of the Service Contracts is currently in full force and effect
without any material default thereunder by the Company or, to the knowledge of
Purchaser, by any other parties thereto, and, to the knowledge of Purchaser,
neither Purchaser nor any other party to any of the Service Contracts has
notified the other of any intent or desire to terminate such Service Contract or
modify it in any material respect. No fact or circumstance exists which, with or
without the lapse of time or notice or both, would constitute a material default
under any of the Service Contracts. All amounts due to date under each of the
Service Contracts have been paid within the applicable payment period.
(l) Real Property. Schedule 9 is a true and complete list of all
real property leased by the Company (collectively, the "Leased Real Property"),
and, except as set forth on such Schedule 9, the Company has valid and
enforceable leasehold interests in all of the Leased Real Property under leases
(the "Leases") described in such Schedule 9, in each case free and clear of all
Liens. True, correct and complete copies of the Leases have previously been
given to Seller by Purchaser. Each Lease is currently in full force and effect
without any material default thereunder by the Company or, to the knowledge of
Purchaser, by any other parties thereto. No condemnation or rezoning Proceeding
is pending or, to the knowledge of Purchaser, threatened which would impair the
use of the Leased Real Property in the Business. Neither the Company nor any
other party to any such Lease has notified the other of any intent or desire to
terminate such Lease or modify it in any material respect. No fact or
circumstance exists which, with or without the lapse of time or notice or both,
would constitute a material default under any such Lease. All rent due to date
under each such Lease has been paid. No real property leased to the Company
violates any applicable Law. The Company does not use or occupy any real
property in connection with the Business other than the Leased Real Property and
certain on-site office space at each Managed Property occupied by the Company
pursuant to Property Management Contracts. The Company does not own or occupy
any real property other than the Leased Real Property. With respect to the Lease
described on Schedule 9.1 (relating to the Sunrise Office), such Lease (A) is
terminable by landlord or tenant at any time upon thirty (30) days notice, and
(B) may only be assigned to Seller at Closing with the consent of the landlord.
With respect to the Lease described in Schedule 9 relating to the Tampa Office,
Purchaser agrees that the Company has previously offered a notice of
termination, and Purchaser agrees that following the Closing, the Company shall
be fully and completely responsible for any amounts due on account of that
Lease, including, without limitation, any fees, charges or other amounts that
may be due the applicable landlord on account of such termination.
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(m) Insurance. To Purchaser's knowledge, Schedule 10 lists and
describes, including policy numbers, names and addresses of insurers and
expiration dates, all material policies of fire, liability and other forms of
insurance (excluding insurance used to fund any Employee Plans, as defined in
Section 2.3(p), below) in effect as of the date hereof which are maintained by
Purchaser with respect to the Business or the assets used in the Business, and
all such policies (or similar policies) will be maintained in effect until the
Closing.
(n) Intellectual Property. Schedule 11 lists or describes all
trademarks, service marks, trade names and copyrights, computer programs,
hardware and software (including, without limitation, documentation and related
object and source codes) (collectively, the "Software"), processes, technology,
customer and contact lists, know-how and other proprietary rights (collectively
with the goodwill associated therewith, the "Intellectual Property Rights")
owned or licensed by the Company and used primarily in, or otherwise necessary
to the conduct of, the Business as of the date hereof, and registration and
filing information with respect thereto; provided, however, that Software such
as "Single Step Leasing" which is registered to Konover Property Trust, Inc., or
KPT Properties, L.P., will not be transferred to the Company or Purchaser unless
all necessary consents are obtained and any related fees are paid by Purchaser.
To the knowledge of Purchaser, the Company owns or has the exclusive right to
use all Intellectual Property Rights free of any Liens, and such use does not
conflict with or violate any valid patent, copyright, trademark or trade name of
third parties. Purchaser has not received any notice of a conflict with the
asserted rights of others in connection with Intellectual Property Rights. To
the knowledge of Purchaser, none of the Intellectual Property Rights is being
infringed by any third parties. The Intellectual Property Rights are not subject
to any royalty, license or similar Contract or right of a third party respecting
the same (provided, however, that with respect to any Intellectual Property
Rights relating to the "Konover" name, such representation and warranty is made
only to the knowledge of Purchaser). The assignment to Seller of those
Intellectual Property Rights set forth in Schedule 11.1 is permitted without the
consent or approval of any third party, and such assignment will not constitute
a breach of or a default under any Material Obligations relating to the Company
unless otherwise stated on Schedule 11.1.
(o) Employee Relations. The Company is not a party to a collective
bargaining agreement.
(p) Employee Plans. To the knowledge of Purchaser, Schedule 12 lists
all Employee Plans (as defined below). "Employee Plan" means each payroll
practice, employee bonus, retirement, pension, profit sharing, stock option,
stock appreciation, stock purchase, incentive, deferred compensation,
hospitalization, medical, dental, vision, life and other health and disability
(whether provided by insurance or otherwise), severance, termination and every
other plan, program, arrangement, policy or payroll practice which provides
employee benefits or compensation, including without limitation each employee
benefit plan as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), other than a multiemployer plan
within the meaning of Section 3(37) of ERISA ("Multiemployer Plan"), maintained
by the Company.
(q) Environmental Liabilities. The Company has not in the conduct of
the Business undertaken responsibility, or otherwise become responsible, for
environmental
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management or waste disposal matters, other than arranging for routine garbage
disposal from non-industrial sources. To the knowledge of Purchaser, the Company
is in compliance with all environmental Laws, and there has not been any
complaint, order, directive, claim, citation or notice by or from any
Governmental Agency or other person with respect to the Company, the Business or
the Assets relating to any environmental, health or safety Law. Schedule 13
describes, to the knowledge of Purchaser, all environmental issues relating to
the Assets or the Managed Properties and all other locations in which the
Business is or has been conducted.
(r) Taxes. With the exception of any state intangible taxes or local
tangible personal property taxes, the Company has paid, or will pay on or before
the due date thereof, in a timely manner all Taxes for which an assessment or
demand for payment in writing has been received or is received with respect to
periods to and including the Closing. "Taxes" means taxes of any kind, levies or
other like assessments, customs, duties, imposts, charges or fees imposed by any
Governmental Authority, including, without limitation, income, gross receipts,
ad valorem, value added, excise, real or personal property, asset, sales, use,
license, payroll, transaction, capital, net worth and franchise taxes,
withholding, employment, social security, workers compensation, utility,
severance, production, unemployment compensation, occupation, premium, windfall
profits, transfer and gains taxes, and in each instance such term shall include
any interest, penalties or additions to tax.
(s) Licenses and Permits. Schedule 14 is a true and complete list of
all material notifications, licenses, permits, franchises, certificates,
approvals, exemptions, classifications, registrations, qualifications and other
similar documents and authorizations, and applications therefor (collectively,
the "Licenses"), held or applied for by the Company or any Employee for the
benefit of the Company and issued by, or submitted by the Company (or the
applicable Employee) to, any Governmental Authority or other person or entity.
Except as set forth on Schedule 14, the Company and the Employees have obtained
or applied for all Licenses necessary for the conduct of the Business, except
Licenses the absence of which will not, individually or in the aggregate, have a
Material Adverse Effect. Except as set forth on Schedule 14.1, the assignment to
Seller of those Licenses set forth on Schedule 14.1 is permitted under
applicable Laws and by the terms of the applicable License and will not
constitute a default or violation thereunder, and the consent of the
Governmental Authority or other person issuing or granting such License is not
required with respect to such assignment unless stated on Schedule 14.1.
(t) Books And Records. All books, files, records and accounts
maintained by the Company in Florida in connection with the Business, the Assets
and the Material Obligations (collectively, the "Books and Records"), including
without limitation, policy manuals, handbooks, records, business development
plans, advertising matter, media materials, correspondence, mailing lists, sales
materials and records, purchasing material and records, copies of personnel
records of Employees of the Company, and the like, have been disclosed and made
available to Seller, are in all material respects true and complete and
maintained in accordance with applicable Laws, and to the extent such Books and
Records relate, in whole or in part, to the Transferred Assets, the Transferred
Obligations, or the Business to be conducted from the Sunrise Office, shall be
delivered to Seller at Closing.
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(u) Intercompany Transactions. Schedule 15 describes all Contracts
and transactions (including the purchase and sale of inventories, supplies and
other goods) between the Company on the one hand, and any of Purchaser or her
Affiliates, on the other hand, currently in effect, in each case setting forth
the terms thereof.
(v) Employees. Schedule 16 is a complete and correct list of all
employees of KPT Properties, L.P. who provide services exclusively on behalf of
the Company as of the Effective Date, and any such employees employed by the
Company at any time since June 30, 2001 (each an "Employee" and collectively the
"Employees"), together with their job title, location, current annual salary,
2001 bonus, 2001 W-2 earnings, car allowances and accrued sick and vacation days
for each, as applicable. All Employees have been paid through the most-recent
pay period. Except for ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (who on October 8, 2001, resigned her
position and may have terminated her employment agreement as of that date, which
employment agreement in any event terminates and expires on or before February
28, 2002) no Employee is or may be the subject of any written employment
agreement and, except for vested benefits under the Employee Plans, no Employee
is entitled to any non-salary compensation (whether current or deferred),
consulting fees, reimbursements (other than for business travel and
entertainment in accordance with the employee handbook) or other amounts from
the Company. No Employee has been given or promised any compensation, employment
or other consideration relating directly or indirectly to the negotiation or
consummation of the Transactions. Purchaser shall cause the Company to retain,
following the Closing, all of the Employees who conduct business from the Tampa
Office (the "Tampa Employees"). Schedule 16.1 contains a list of those Tampa
Employees which Purchaser reserves the right to terminate following the Closing
but prior to July 31, 2002. Purchaser further reserves the right, at any time
prior to May 15, 2002, to substitute up to three (3) Tampa Employees for up to
three (3) of the Employees listed on Schedule 16.1. Those Employees whom Seller
elects to retain following the Closing are referred to as the "Transferred
Employees", and those Employees which Purchaser elects to reserve the right to
terminate from and after the Closing are referred to as the "Reserved
Employees".
(w) Required Consents. Schedule 17 sets forth a true and complete
list of (i) all consents of the owners and mortgage lenders on each Managed
Property, if required, to the transfer any of the Property Management Contracts
to Seller or to the transfer of the Member Interest to Purchaser, (ii) all
consents required to transfer any Other Contract or Lease or other Asset to be
transferred under this Agreement, including all consents of software licensors
and other parties necessary to transfer any of the Intellectual Property rights
to transferred under this Agreement, and (iv) any other authorizations,
consents, orders and approvals of Governmental Agencies or of any third parties
that may be necessary in connection with the consummation of the transactions
contemplated by this Agreement. All such foregoing authorizations, consents,
orders and approvals are referred to herein as the "Required Consents".
(x) Sufficiency of Assets. The Assets include all assets used or
held for use by the Company in the conduct of the Business and all assets
necessary for the conduct of the Business as it has been historically conducted.
The Retained Assets will constitute all assets necessary for the conduct of that
portion of the Business to be retained by the Company, and the Transferred
Assets will constitute all assets necessary for the conduct of the Business to
be assigned to Seller, except that Seller may need to institute accounting and
reporting functions
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and develop the ability to provide additional property management services, to
satisfy its obligations under the Property Management Contracts transferred to
Seller at Closing.
(y) Sufficiency of Representations. The representations and
warranties of Purchaser contained in this Agreement are true, correct and
complete in all material respects and do not fail to include any information
necessary to avoid rendering such representations and warranties misleading.
2.5 Seller hereby acknowledges that Seller and its Affiliates provide
certain corporate services to and on behalf of the Company. In that context,
Seller hereby makes the following representations and warranties to Purchaser,
each of which shall be true, correct and complete as of the Effective Date and
as of the Closing Date, and on which Purchaser may rely (in addition to its own
knowledge and investigations) in providing its warranties pursuant to Section
2.3 hereof so long as Purchaser does not have knowledge that such representation
and warranty by Seller is in any manner untrue or incomplete:
(a) Transaction not a Breach. To Seller's knowledge, except as set
forth on Schedule 1, neither the execution, delivery or performance by Seller of
this Agreement and the Seller's Closing Documents nor the consummation of the
transactions contemplated thereby will:
(i) Violate or conflict with or result in a breach of any
provision of any federal, state or local law, code or ordinance or any rule or
regulation (each, a "Law" and, collectively, "Laws") promulgated thereunder by
any domestic, state, local or foreign government or any subdivision, agency,
authority or instrumentality thereof (each, a "Governmental Authority"), or any
order, permit, judgment, injunction, decree or other decision of any court or
other tribunal or any Governmental Authority (each, an "Order" and collectively,
"Orders") binding on the Company;
(ii) Constitute a default (or an event which, with or without
notice or the lapse of time or both, would constitute a default) under the
organizational documents of the Company or under any, contract, agreement,
commitment, indenture, mortgage, note, bond, lease, license or other instrument
or obligation to which the Company is a party (collectively, the "Material
Obligations") or by which any of the Assets are bound (subject to obtaining any
Required Consents);
(iii) Constitute an event which would permit any party to
terminate any agreement or accelerate the maturity of any indebtedness or other
obligation which may be the obligation of the Company or may encumber or
materially impact any Managed Property or materially modify any Retained
Obligations or any Transferred Obligations (subject to obtaining any Required
Consents); or
(iv) Result in the creation or imposition of any mortgage,
lien, security interest, claim, charge, restriction, or encumbrance (each, a
"Lien" and, collectively, "Liens") upon any of the Assets.
(b) Litigation. To Seller's knowledge, there is no action,
arbitration, audit, hearing, investigation, litigation, suit or other proceeding
(each, a "Proceeding") pending against or affecting the Company or any of its
assets before any court, arbitrator or Governmental
10
Authority, nor to Seller's knowledge has the commencement of any such Proceeding
been threatened. To Seller's knowledge, no person has any claim of any kind or
nature against the Company or its Assets, contingent or otherwise, whether
asserted or unasserted, arising out of or in connection with any facts or
circumstances occurring prior to the Closing, including claims under any Laws,
including environmental, antitrust, civil rights, health, safety, or labor,
discrimination or other employment practices.
(c) Financial Statements. To Seller's knowledge, except as set forth
in the Financial Statements, neither Seller nor any person or entity acting on
Seller's behalf has obligated the Company with respect to any third party
obligations or debts which would be binding on or the responsibility of Seller
following the Closing.
(d) No Material Adverse Change. Since the date of the Financial
Statements, there has been no action taken by Seller which would result in a
material adverse change in the Business, the Assets, the Retained Obligations,
the Transferred Obligations or the operations of the Company.
(e) Compliance With Laws and Orders. To Seller's knowledge, Seller
has not caused the Company to take any action in violation of any Laws and
Orders applicable to it or to the operation of the Business and has not received
any notice of any alleged claim or threatened claim, violation of, or liability
or potential responsibility under, any such Law or Order which has not
heretofore been cured and for which there is any remaining liability.
(f) Service Contracts. Schedule 8 includes a list of all Service
Contracts entered into by Seller or KPT Properties, L.P. on behalf of the
Company which could remaining binding on the Company following the Closing.
True, correct and complete copies of those Service Contracts have been provided
to Purchaser prior to the date hereof. Each of those Service Contracts is
currently in full force and effect without any material default thereunder by
the Company or, to the knowledge of Seller, by any other parties thereto, and,
to the knowledge of Seller, neither Seller nor any other party to any of those
Service Contracts has notified the other of any intent or desire to terminate
such Service Contract or modify it in any material respect. No fact or
circumstance exists which, with or without the lapse of time or notice or both,
would constitute a material default under any of those Service Contracts. All
amounts due to date under each of those Service Contracts have been paid within
the applicable payment period.
(g) Real Property. Seller has not entered into any real property
leases in the name of the Company in addition to those Leases described on
Schedule 9.
(h) Insurance. To Seller's knowledge, Schedule 10 lists and
describes, including policy numbers, names and addresses of insurers and
expiration dates, all material policies of fire, liability and other forms of
insurance (excluding insurance used to fund any Employee Plans) in effect as of
the date hereof which are maintained by or on behalf of the Company with respect
to the Business or the assets used in the Business, and all such policies (or
similar policies) will be maintained in effect until the Closing.
11
(i) Employee Relations. To Seller's knowledge, the Company is not a
party to a collective bargaining agreement. To the knowledge of Seller, Schedule
13 lists all Employee Plans affecting the Employees.
(j) Taxes. To the knowledge of Seller, the Company has paid, or will
pay on or before the due date thereof, in a timely manner all Taxes for which an
assessment or demand for payment in writing has been received or is received
with respect to periods to and including the Closing to the extent such Taxes
are customarily paid by Seller or KPT Properties, L.P. on behalf of the Company
and not by the Company directly. Seller agrees to be responsible for all state
intangible taxes and local tangible personal property taxes payable by the
Company for periods preceding the Closing.
(k) Books And Records. All Books and Records of the Company
maintained by Seller or KPT Properties, L.P. in connection with the Business,
the Assets and the Material Obligations (collectively, the "Books and Records"),
have been disclosed and made available to Purchaser, are in all material
respects true and complete and maintained in accordance with applicable Laws.
(l) Employees. To the knowledge of Seller, there are no employees
other than those listed on Schedule 16.
(m) Sufficiency of Representations. The representations and
warranties of Seller contained in this Agreement are true, correct and complete
in all material respects and do not fail to include any information necessary to
avoid rendering such representations and warranties misleading.
3. Closing. The purchase and sale of the Member Interest shall be
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consummated at a closing (the "Closing") to take place on or before February 28,
2002 (the "Closing Date"). The Closing Date may be extended only by mutual
agreement, time being of the essence of this Agreement. The Closing shall take
place at the offices of Seller or, at the mutual election of the parties, may be
completed by any combination of facsimile and overnight deliveries. It is agreed
that the transaction contemplated hereby may, at the request of either party, be
closed "in escrow" up to three (3) business days in advance of the Closing Date.
3.1 At the Closing, Seller shall execute and deliver to Purchaser:
(a) An Assignment of Member Interest, in form and substance
reasonably satisfactory to Purchaser, conveying all of Seller's right, title and
interest in the Member Interest to Purchaser (the "Assignment").
(b) A Certificate of Amendment duly filed with the Secretary of
State of the State of Delaware, changing the name of the Company to delete any
reference to "Konover".
(c) An Assignment of Management Contracts, in form and substance
reasonably satisfactory to Purchaser and Seller, conveying to Seller all of the
Company's right, title and interest in the Property Management Contracts listed
on Schedule 4.1.
12
(d) An Assignment of Other Contracts, in form and substance
reasonably satisfactory to Purchaser and Seller, conveying to Seller all of the
Company's right, title and interest in the Other Contracts listed on Schedule
5.1.
(e) An Assignment of Lease, in form and substance reasonably
satisfactory to Purchaser and Seller, conveying to Seller all of the Company's
right, tile and interest in the Lease listed on Schedule 8.1.
(f) An Assignment of Licenses, in form and substance reasonably
satisfactory to Purchaser and Seller, conveying to Seller all of the Company's
right, title and interest in the Licenses listed on Schedule 14.1.
(g) A ▇▇▇▇ of Sale, in form and substance reasonably satisfactory to
Purchaser and Seller, conveying to Seller all of the Company's right, title and
interest in the Tangible Property Schedule 7.1, and the Intellectual Property
Rights listed on Schedule 10.1.
(h) An Assignment and Assumption Agreement, in form and substance
reasonably satisfactory to Purchaser and Seller, assigning to Seller all of the
Company's right, title and interest in the Service Contracts listed on Schedule
8 which relate to the Transferred Assets.
(i) An affidavit executed by Seller, confirm that all
representations and warranties of Seller under this Agreement are true, correct
and complete as of the Closing Date.
(j) Evidence reasonably satisfactory to Purchaser that, as of the
Closing, all intercompany loans and advances to the Company due and payable to
Konover Property Trust, Inc. or its Affiliates have been paid in full or
released and cancelled.
(k) Such additional documents as may be reasonably requested by
Purchaser to evidence the assumption of liability by Seller, and the release
from liability of the Company (if available), with regard to Transferred Assets
and Transferred Obligations from and after the Closing.
3.2 At the Closing, Purchaser shall execute and deliver to Seller:
(a) A counterpart of the Assignment.
(b) Any Required Consents.
(c) An affidavit executed by Purchaser, confirm that all
representations and warranties of Purchaser under this Agreement are true,
correct and complete as of the Closing Date.
(d) Such additional documents as may be reasonably requested by
Seller to evidence the assumption of liability by Purchaser, and if possible the
release from liability of Seller, with regard to Retained Assets and Retained
Obligations from and after the Closing.
13
3.3 The obligations of each party to consummate the transactions
contemplated hereby are subject to and conditioned upon (a) the absence of any
material breach by the other party in the covenants, representations and
warranties provided under this Agreement, and (b) the delivery of the
Purchaser's Closing Documents or the Seller's Closing Documents, as applicable.
4. Operating Covenants.
-------------------
4.1 From and after the Effective Date and through the Closing, Purchaser
and Seller shall use reasonable efforts to continue to conduct the Business in
the ordinary and usual course and in substantially the same manner as it is
presently conducted, to preserve the Assets in substantially the same state as
existing on the date hereof, to avoid incurring any additional liabilities or
obligations outside the ordinary course of business, and to prevent any event
which could have a material adverse effect on the Business, the Retained Assets
or the Transferred Assets.
4.2 Prior to the Closing Date, Purchaser and Seller shall use commercially
reasonable efforts to obtain all Required Consents, and to ensure that
identified Assets become Transferred Assets and that identified Employees become
Transferred Employees. To the extent that Purchaser and Seller are unable to
obtain necessary Required Consents with respect to any Property Management
Contracts as of the Closing Date, the Company and Seller (or its designee) will,
at Closing, enter into a Submanagement Agreement, in the form of the
Submanagement Agreement dated April 1, 1999 between RMC Realty Company, Ltd. and
the Company, with respect to each applicable Managed Property, and Purchaser and
Seller shall nevertheless continue to exercise reasonable efforts to obtain the
necessary Required Consents following the Closing. At such time as a Required
Consent is obtained, the applicable Submanagement Agreement shall thereupon be
terminated.
4.3 The parties acknowledge that it is the desire of Seller that notices
of termination be sent to all Tampa Employees as of January 31, 2002.
Nonetheless, Seller has agreed to defer delivery of those notices until February
7, 2002 as an accommodation to Purchaser. In consideration for such deferral, it
is agreed that in the event Purchaser defaults in the performance of Purchaser's
obligations or this transaction is otherwise not consummated on the Closing Date
due to any cause other than a material default by Seller hereunder, in addition
to any other remedies available to Seller on account of such default, Purchaser
agrees to pay to Seller as liquidated damages on account of such deferral the
amount of $63,405.00, which Seller and Purchaser agree represents a fair
estimate of the damages that would be suffered by Seller and its Affiliates as a
result of such deferral in the absence of a Closing on the Closing Date, time
being of the essence.
5. Post-Closing.
------------
5.1 Following the Closing and for the period through June 30, 2002, Seller
agrees to pay or reimburse to the Company the sum of $20,000 per month (prorated
for any partial months) in order to assist the Company in the payment of all
operating expenses of the Company incurred during that period.
14
5.2 Following the Closing, Purchaser agrees to cause the Company to
continue to employ all of the Tampa Employees. Nonetheless, Purchaser hereby
reserves the right to terminate those Reserved Employees listed on Schedule 15.1
following the Closing, subject to the following:
(a) Any Reserved Employee who is terminated prior to July 31, 2002,
will remain employed by the Company at least through April 7, 2002, and shall be
provided a severance package substantially the same as those received by
terminated employees of KPT Properties, L.P. (as if the Reserved Employee had
remained employed until the effective termination date);
(b) Seller agrees to reimburse Purchaser for the actual severance
payments made to Reserved Employees, so long as such payments are in accordance
with this Section 5.2, such payments are made before July 31, 2002, request for
reimbursement is delivered to Seller before July 31, 2002, and the aggregate
amount of such reimbursement does not exceed $65,000.00;
(c) Purchaser shall indemnify, defend and hold Seller harmless from
and against any and all obligations, liabilities, claims, actions or the like
arising out of or in connection with the termination of any Tampa Employees; and
(d) From and after the Closing, Seller shall be responsible for any
salary or benefits, including sick pay, vacation pay, medical insurance premiums
and/or severance payments due any Transferred Employees, and the Company and
Purchaser shall be responsible for any such amounts due all other Employees.
5.3 Following the Closing:
(a) Seller shall indemnify, defend and hold Purchaser harmless from
and against any and all obligations, liabilities, claims, actions or the like
known to Seller and not disclosed to Purchaser and arising out of or in
connection with events relating to the ownership and operation of the Company
prior to the consummation of the Closing, and arising out of or in connection
with the ownership and operation of the Transferred Assets, the Transferred
Obligations, and the Business operated from and related to the Sunrise Office.
(b) Purchaser shall indemnify, defend and hold Seller harmless from
and against any and all obligations, liabilities, claims, actions or the like
arising out of or in connection with (i) the ownership and operation of the
Company following the Closing, (ii) any failure of Purchaser, Seller or the
Company to comply with applicable bulk sale or bulk transfer Laws, and, (iii) to
the extent known to Purchaser and not disclosed in writing to Seller prior to
the date hereof, any event relating to the ownership and operation of the
Business, the Assets and/or the Material Obligations prior to the Closing,
including all Laws and Orders.
(c) From and after the Closing through June 30, 2002, Purchaser
shall use reasonable efforts to continue to conduct the Business in the ordinary
and usual course and in substantially the same manner as it is presently
conducted, to preserve the Retained Assets in substantially the same state as
existing on the date hereof, to avoid incurring any additional liabilities or
obligations outside the ordinary course of business, and to prevent any event
which
15
could have a material adverse effect on the Business or the Retained Assets.
From and after the Closing through June 30, 2002, Purchaser agrees to use
commercial reasonable efforts to collect all amounts due to the Company.
5.4 From and after the Effective Date, each of Seller and Purchaser, on
behalf of themselves as well as their respective Affiliates, agree not to engage
in, promote, solicit or pursue any property management, property leasing or
construction management business from owners of Managed Property under Property
Management Contracts to be retained by or transferred to the other party until
the date which is three (3) years after the Closing Date. Each party agrees that
any violation of this Section 5.3 will be irreparable and the exact amount of
damages respecting any such violation may be impossible to ascertain.
Accordingly, each party agrees that, in the event of any such violations, the
aggrieved party shall be entitled, as a matter of right, to obtain a temporary
restraining order, a temporary or a permanent injunction before any court of
competent jurisdiction, restraining and enjoining any further such violations.
Such rights shall be cumulative and in addition to whatever remedies, relief or
recourse the aggrieved party may have under this Agreement, or at law or equity,
including the right to recover such damages as may be ascertainable, including,
but not limited to, all net profit or income arising from or attributable to
actions taken in violation hereof and any reasonable attorneys fees and costs
incurred in connection with such violation.
5.5 Following the Closing, Purchaser shall provide Seller and Seller's
employees, agents and legal representatives with reasonable access, at Seller's
expense, to all books and records of the Company that relate to the operation of
the Business prior to the Closing, including (to the extent reasonably required
and permitted by applicable law) employment records for Employees. Following the
Closing, Seller shall provide Purchaser and Purchaser's employees, agents and
legal representatives with reasonable access, at Purchaser's expense, to all
books and records of the Company that relate to the operation of the Business
prior to the Closing, including (to the extent reasonably required and permitted
by applicable law) employment records for Employees.
5.6 To the extent that, at any time within one (1) year following the
Closing, Purchaser, the Company, or any Affiliate, shall hire or retain on a
full or part-time basis, as an employee, consultant or contractor, any of the
Employees listed on Schedule 16, Purchaser shall promptly reimburse Seller for
any amounts paid by Seller on account of the severance of that Employee,
including amounts paid pursuant Paragraph 3.3, above.
5.7 To the extent that, at any time within three (3) years following the
Closing, Purchaser, the Company, or any Affiliate, or any successor or assign
shall for valuable consideration assign, transfer or convey the Member Interest
or the Assets, then the recipient shall, to the extent of the value of the
consideration received after repayment of bona fide third party debt, the
proceeds of which were invested in the Business and not, directly or indirectly,
distributed to Purchaser, or any family member or Affiliate of Purchaser,
contemporaneously with the receipt of such consideration pay to Seller, in cash,
an amount equal to the sum of: (a) any and all amounts advanced by Seller
pursuant to the provisions of Paragraphs 5.1 or 5.2, above, and (b) (i) if such
transaction is pursuant to an agreement reached prior to February 28, 2003, 50%
of the amount by which the value of such consideration exceeds amounts due
Seller pursuant to clause (a), or (ii) if such transaction is pursuant to an
agreement reached after
16
February 28, 2003 but on or prior to February 28, 2004, 25% of the amount by
which the value of such consideration exceeds amounts due Seller pursuant to
clause (a). This foregoing is not intended to restrict any transfer without
additional consideration to a member of Purchaser's immediate family or to an
entity wholly-owned and controlled by Purchaser and members of her immediate
family (each, a "Related Person"), so long as Purchaser as well as any
transferee(s) remains jointly and severally liable for the obligations arising
under this Section 5.6.
5.9 The provisions of this Section 5 shall survive the Closing.
6. Severability; Binding Effect. The unenforceability or invalidity of any
----------------------------
provision or provisions of this Agreement shall not render any other provision
or provisions herein contained unenforceable or invalid. This Agreement shall be
binding upon Purchaser and upon the respective heirs, legal representatives,
successors and assigns of Purchaser and shall inure to the benefit of the Seller
and its successors and assigns. This Agreement may be executed in any number of
counterparts, each constituting an original, but all together one and the same
instrument.
7. Notices. Any notice that any party may desire or be required to give to
-------
any other party shall be in writing and personal delivery or the mailing
thereof, by certified mail to the following addresses, or at such other place as
any party hereto may by notice hereby designate in writing as a place for
service of notice, shall constitute the giving of notice hereunder, effective at
the time of personal delivery or, if mailed, on the third day following the date
of mailing:
If to Seller: Sunset KPT Investment, Inc.
c/o Konover Property Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
If to Purchaser: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
and to:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Blalock, Landers, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
17
8. Brokers. Each party hereby represents and warrants to the other that no
-------
person or entity is entitled to receive any investment banking, brokerage or
finder's fees or other compensation whatsoever for financial consulting,
brokerage, placement or advisory services in connection with this Agreement or
the transactions contemplated hereby.
9. Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the laws of the State of Maryland without regard to principles
of conflict of laws. Purchaser hereby irrevocably authorizes service of process
to be made upon it by mail at the address given in Paragraph 6, above, in any
action which may be instituted against it arising out of or relating to this
Agreement.
10. Headings. Paragraph headings in this Agreement are included herein for
--------
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
11. Modifications. This Agreement may not be modified or amended except by
-------------
a writing signed by all the parties hereto.
12. Survival. All representations, warranties and covenants contained
--------
herein shall survive the execution and delivery of this Agreement, the delivery
of Seller's Closing Documents and Purchaser's Closing Documents, and the
Closing.
13. Further Assurances. Seller shall execute and deliver such further
------------------
documents and instruments as may be reasonably requested by Purchaser to
evidence the interests granted hereunder and otherwise carry out the purposes of
this Agreement.
14. Assignment. Purchaser may not assign this Agreement nor any interest
----------
herein without the prior written consent of Seller, which consent may be granted
or withheld in Seller's sole and absolute discretion; provided, however, that
Seller's consent shall not be required in connection with an assignment without
additional consideration to a Related Person, so long as the original Purchaser
together with any such transferee remain jointly and severally liable for the
obligations of "Purchaser" arising under this Agreement. Seller may assign the
rights to acquire the Transferred Assets and that portion of the Business
associated with the Sunset Office to an Affiliate of Seller or Konover Property
Trust, Inc., without the consent of Purchaser or any other person. This
Agreement shall be binding upon and inure to the benefit of Purchaser and Seller
and their successors and permitted assigns.
18
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
Seller:
SUNSET KPT INVESTMENT, INC.,
a Delaware corporation
By: [SEAL]
----------------------------
Name:
--------------------------
Title:
-------------------------
Purchaser:
[SEAL]
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
19
