TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT (the "Transfer Agreement"), dated as
of July 31, 1998, is by and between Prometheus Southeast Retail LLC, a Delaware
limited liability company ("Assignor"), and Prometheus Southeast Retail Trust, a
Maryland real estate investment company ("Assignee").
WHEREAS, Assignor owns (i) 2,350,000 shares (the "Purchased
Shares") of common stock, par value $.01 per share (the "FAC Common Shares"), of
FAC Realty Trust, Inc. ("FAC") and (ii) the Contingent Value Rights (as defined
in the Contingent Value Right Agreement, dated as of February 24, 1998 (the
"Contingent Value Right Agreement"), by and between Assignor and Assignee, the
"Contingent Value Rights" and, together with the Purchased Shares, the
"Assets");
WHEREAS, Assignor possesses rights and obligations under (i)
the Amended and Restated Stock Purchase Agreement, dated as of March 24, 1998
(the "Stock Purchase Agreement"), by and between Assignor and Assignee, (ii) the
Contingent Value Right Agreement, (iii) the Registration Rights Agreement, dated
as of February 24, 1998 (the "Registration Rights Agreement"), by and between
Assignor and Assignee and (iv) the Stockholders Agreement, dated as of February
24, 1998, by and between Assignor and Assignee (the "Stockholders Agreement"
and, together with the Stock Purchase Agreement, the Contingent Value Right
Agreement and the Registration Rights Agreement, the "Transaction Documents");
WHEREAS, (A) Assignor wishes to transfer and assign to
Assignee (i) Assignor's right, title and interest in and to the Assets and (ii)
Assignor's right, title and interest in and to, and all obligations under, the
Transaction Documents (the "Transaction Document Rights"), and (B) Assignee
wishes to accept the transfer and assignment of (i) the Assets and (ii) the
Transaction Document Rights.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Transfer Agreement and other good and valuable
consideration the existence, sufficiency and receipt of which are hereby
acknowledged, the parties covenant and agree as follows:
1. Assignment and Transfer. Concurrently with the execution and
delivery of this Transfer Agreement, (A) Assignor shall (i)
deliver to Assignee the stock certificates listed on Schedule
1 hereto, representing the Purchased Shares, with stock powers
attached thereto duly endorsed in blank, thereby transferring
to Assignee the
Purchased Shares, including all of the rights and obligations
attendant thereto, and (ii) hereby assign, grant, bargain,
sell, convey and transfer to Assignee the Contingent Value
Rights and all of the Transaction Document Rights, and (B)
Assignee shall accept such assignment and transfer of (i) the
Assets, including all of the rights and obligations attendant
thereto, and (ii) all of the Transaction Document Rights and
to discharge each and every obligation of Assignor under the
Transaction Documents.
2. Consideration. In consideration for the assignment and
transfer by Assignor to Assignee of the Assets and the
Transaction Document Rights, (i) Assignee shall issue to
Assignor 100,000 shares of the common shares of beneficial
interest, par value $.01 per share (the "Common Shares"), of
Assignee and (ii) Assignor shall accept such Common Shares.
3. Further Assurances. Assignor hereby agrees to take all acts
and to execute all documents as Assignee may reasonably
request to fully carry out and effectuate the transactions
contemplated by this Transfer Agreement.
4. Counterparts. This Transfer Agreement may be executed in two
counterparts, each of which shall be deemed an original for
all purposes but both of which together shall constitute one
and the same instrument.
5. Governing Law. This Transfer Agreement shall be governed by
and construed in accordance with the laws of the State of New
York without regard to its conflict of law rules.
6. Amendments. This Transfer Agreement may not be amended,
altered, modified or revoked without the prior written consent
of both parties.
7. Headings. All headings in this Transfer Agreement are inserted
only for convenience and ease of reference and shall not be
considered in the construction and interpretation of any
provision hereof.
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IN WITNESS WHEREOF, the parties have caused this Transfer
Agreement to be executed in one or more counterparts by their duly authorized
officers as of the day and year first written above.
PROMETHEUS SOUTHEAST RETAIL LLC,
a Delaware limited liability company
By: LF Strategic Realty Investor II L.P.,
managing member
By: Lazard Freres Real Estate Investors, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Principal
PROMETHEUS SOUTHEAST RETAIL TRUST,
a Maryland real estate investment trust
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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Schedule 1
Stock Certificates
2,350,000 shares of common stock, par value $.01 per share of FAC Realty Trust,
Inc.
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