Exhibit 10(a)
AGREEMENT REGARDING PURCHASE AND TRANSFER
OF
PARTNERSHIP INTERESTS
THIS AGREEMENT REGARDING PURCHASE AND TRANSFER OF PARTNERSHIP INTERESTS
(this "Agreement") is made and entered into as of this 28th day of December,
2001, by and between 77 CENTER INVESTORS LIMITED PARTNERSHIP, a North Carolina
limited partnership ("77 Center I") and 77 CENTER INVESTORS II LIMITED
PARTNERSHIP, a North Carolina limited partnership ("77 Center II") (77 Center I
and 77 Center II are hereinafter sometimes referred to individually as a
"Transferor" and collectively as "Transferors"), and XXXXX EQUITY, INC., a
Florida corporation, or its assigns, having an address at 0000 Xxxxxxx Xxxxxxxx
Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Transferee").
RECITALS:
A. 77 Center I is the sole legal and beneficial owner of a limited partnership
interest represented by 561,874 Limited Partnership Units (the "77 Center I
Interest") in XXXXX-VANGUARD PARTNERS, L.P., a Delaware limited partnership
(the "Partnership"), pursuant to (a) that certain Amended and Restated
Agreement of Limited Partnership of Xxxxx-Vanguard Partners, L.P., dated as
of October 22, 1998, by and among Transferee, as general partner, and the
Initial Limited Partners (as defined therein) and Southeast Properties
Holding Corporation, as limited partner, as amended by Amendment No. 1 to
Amended and Restated Agreement of Limited Partnership dated October 22,
1998, by Transferee in its capacity as general partner (as so amended, the
"Partnership Agreement"); and (b) the Partner Schedule of 77 Center I dated
October 22, 1998 attached to the Partnership Agreement.
B. 77 Center II is the sole legal and beneficial owner of a limited
partnership interest represented by 437,836.36 Limited Partnership Units
(the "77 Center II Interest") in the Partnership, pursuant to (a) the
Partnership Agreement; and (b) the Partner Schedule of 77 Center II dated
October 22, 1998 attached to the Partnership Agreement.
C. 77 Center I desires to sell, assign, transfer, convey and grant all of the
77 Center I Interest in the Partnership to Transferee and 77 Center II
desires to sell, assign, transfer, convey and grant all of the 77 Center II
Interest in the Partnership to Transferee (the 77 Center I Interest and the
77 Center II Interest are sometimes hereinafter collectively referred to as
the "LP Interests").
D. In lieu of the redemption provisions of the Partnership Agreement,
Transferee desires to purchase and accept the transfer of the LP Interests
and to become a substituted limited partner in the Partnership, in
accordance with the terms and provisions of the Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party hereto, Transferors
and Transferee hereby agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Partnership Agreement
2. Sale, Purchase and Transfer. Notwithstanding anything in the Partnership
Agreement to the contrary, including without limitation, the provisions of
Section 8.6 thereof, Transferors each do hereby agree to sell, assign, transfer,
convey, grant and set over to Transferee, its successors and assigns, on the
Effective Date at Closing (as such terms are hereinafter defined), all of their
respective right, title and interest in, to and under the LP Interests, free and
clear of any liens or encumbrances whatsoever, including, without limitation,
(a) the right to receive all distributions to which such Transferor would be
entitled, and (b) such Transferor's entire interest in the profits, losses,
capital and assets of the Partnership.
3. Purchase Price. For and in consideration of the transfer of the LP
Interests to Transferee, Transferee shall pay to each Transferor, upon Closing,
by wire transfer of immediately available funds pursuant to written instructions
to be provided by Transferors, an amount equal to SIXTEEN AND 50/100 DOLLARS
($16.50) for each Unit in the Partnership owned by such Transferor (the
"Purchase Price"), or an aggregate amount of NINE MILLION TWO HUNDRED SEVENTY
THOUSAND NINE HUNDRED TWENTY-ONE AND NO/100 DOLLARS ($9,270,921.00) to 77 Center
I, and an aggregate amount of SEVEN MILLION TWO HUNDRED TWENTY-FOUR THOUSAND TWO
HUNDRED NINETY-NINE AND 94/100 DOLLARS ($7,224,299.94) to 77 Center II.
4. Closing/Effective Date. The consummation of transactions contemplated
hereby and the sale, purchase and transfer of the LP Interests and the payment
of the Purchase Price (the "Closing") shall take place at 10:00 A.M. Eastern
Standard Time on or before January 7, 2002, or such earlier or later date as may
be mutually agreed, without any obligation to do so, in writing by and among
Transferors and Transferee (the "Effective Date").
5. Substituted Limited Partner. Transferors hereby intend that Transferee
shall, upon Closing, become a substituted limited partner in the Partnership and
Transferors shall, upon Closing, substitute, in Transferors' place and stead to
the extent of the LP Interests, Transferee as a limited partner in the
Partnership and vest in Transferee all the rights and burdens of a substituted
limited partner in the Partnership as of the Effective Date; provided, however,
Transferee specifically does not assume any of the obligations, duties and
liabilities of Transferors that accrued prior to the Effective Date and
Transferors shall remain liable for all such obligations, duties and
liabilities, if any.
6. Withdrawal. Upon Closing, Transferors shall be deemed to have withdrawn
as limited partners in the Partnership.
7. Prorations/Tax Returns. The Preferred Return Per Unit attributable to
each Unit of the LP Interests shall be prorated at Closing as between
Transferors and Transferee, and at Closing, Transferee, in addition to the
Purchase Price, shall also pay to each Transferor an amount equal to the pro
rata portion of the Preferred Return Per Unit for each Unit theretofore owned by
such Transferor for the actual number of days in the current calendar quarter
through and including the Effective Date. Transferee shall also, in its capacity
as general partner of the Partnership, pay to Transferors at Closing the full
amount of any Preferred Return Per Unit which has accrued for any prior calendar
quarters but which has not yet been paid as of the Effective Date. All
Partnership profits, losses and distributive shares of tax items allocable to
the LP Interests in accordance with the Partnership Agreement and accruing
through and including the Effective Date, shall be allocated to Transferors in
accordance with the Partnership Agreement, and all of such items accruing after
the Effective Date shall be allocated to Transferee. Transferee shall, in its
capacity as general partner of the Partnership, prepare and timely provide to
Transferors all documentation relating to the Partnership necessary for
Transferors to prepare their tax returns for the year of Closing and all prior
years.
8. Representations with Respect to the LP Interests. Each of 77 Center I
and 77 Center II hereby represent and warrant to Transferee that it is the sole
beneficial and legal owner of the 77 Center I Interest and the 77 Center II
Interest, respectively, free from any lien, claim or encumbrance whatsoever.
Transferors each hereby further represent and warrant to Transferee that such
Transferor has full right, power and authority to convey good title to its
respective portion of the LP Interests to Transferee in accordance with the
terms of this Agreement.
9. Acceptance and Assumption. Upon Closing, Transferee shall accept and
assume all of the rights, privileges, duties, covenants, obligations and
liabilities with respect to the LP Interests arising from and after the
Effective Date and Transferee agrees that, as a substituted limited partner in
the Partnership, Transferee shall thereafter be subject to and bound by all of
the provisions, terms and conditions of the Partnership Agreement.
10. Indemnities. From and after the Closing, Transferors shall each
indemnify and hold Transferee harmless from and against all claims, demands,
losses, damages, expenses and costs including, but not limited to, reasonable
attorneys' fees and expenses actually incurred, arising out of or in connection
with such Transferor's failure, prior to the Effective Date, to observe, perform
and discharge all duties, covenants, obligations and liabilities of such
Transferor, if any, as a limited partner in the Partnership and under the
Partnership Agreement to be observed, performed or discharged, or which relate
or accrue with respect to the period prior to, but not after, the Effective
Date, or as to any breach of any representation or warranty, covenant,
obligation or agreement made by such Transferor under this Agreement. From and
after the Closing, Transferee shall indemnify and hold Transferors harmless from
and against all claims, demands, losses, damages, expenses and costs including,
but not limited to, reasonable attorneys' fees and expenses actually incurred,
arising out of or in connection with Transferee's failure, from and after the
Effective Date, to observe, perform and discharge all covenants, obligations and
liabilities of Transferors or Transferee, if any, as a limited partner in the
Partnership and under the Partnership Agreement to be observed, performed or
discharged, or which relate or accrue with respect to the period from and after,
but not before, the Effective Date, or as to any breach of any representation or
warranty, covenant, obligation or agreement made by Transferee under this
Agreement. The representations, warranties, covenants and indemnification
obligations of Transferors and Transferee shall survive the consummation of the
transactions contemplated by this Agreement.
11. Default. In the event of a default by either party of its obligations
and agreements hereunder to consummate the Closing, the non-defaulting party
shall have, as its sole and exclusive remedy, the right to terminate this
Agreement immediately upon written notice to the other, in which event this
Agreement shall thereafter terminate and be of no force or effect, and the
Partnership Agreement and the Partner Schedules of the Transferors shall remain
in full force and effect and otherwise unmodified by this Agreement.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware without reference to
the conflicts of laws or choice of law provisions thereof.
13. Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
14. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which taken together shall
constitute one agreement.
IN WITNESS WHEREOF, Transferors and Transferee have each caused this
Agreement to be executed by its duly authorized signatory as of the day and year
first above written.
"Transferors":
-----------
77 CENTER INVESTORS LIMITED
PARTNERSHIP, a North Carolina limited
partnership
By: KSSA-77 ASSOCIATES, a Pennsylvania
general partnership, a General
Partner
By: s/Xxxxxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Managing General Partner
By: LIVE OAK PROPERTIES, INC., a
Delaware corporation, a General
Partner
By: s/Xxxxxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President
77 CENTER INVESTORS II LIMITED
PARTNERSHIP, a North Carolina limited
partnership
By: KSSA-77 ASSOCIATES, a Pennsylvania
general partnership, a General
Partner
By: s/Xxxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Managing General Partner
By: LIVE OAK PROPERTIES, INC., a
Delaware corporation, a General
Partner
By: s/Xxxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President
"Transferee":
----------
XXXXX EQUITY, INC., a Florida corporation
By: s/Xxxx X. Xxxxx
------------------
Name: Xxxx X. Xxxxx
Title: Vice President
CONSENT OF GENERAL PARTNER
XXXXX EQUITY, INC., in its capacity as general partner of the Partnership
(the "General Partner"), hereby consents to the within and foregoing agreement
for the sale, purchase and transfer of the LP Interests to Transferee,
notwithstanding the provisions of the Partnership Agreement, including without
limitation, the provisions of Section 8.6 thereof, and from and after the
Closing the General Partner agrees to recognize Transferee as a substituted
limited partner in the Partnership to the extent of the LP Interests.
IN WITNESS WHEREOF, the General Partner has caused this Consent to be
executed by its duly authorized signatory as of this 28th day of December, 2001.
"General Partner":
XXXXX EQUITY, INC., a Florida corporation
By: s/Xxxx X. Xxxxx
------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
