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EXHIBIT 10.14
REAL ESTATE MASTER AGREEMENT
This Real Estate Master Agreement (this "Agreement"), dated as
of this 6th day of October, 1995, is made by and among XXXXXX X. XXXX ("RSH")
and DART GROUP CORPORATION, a Delaware corporation ("Dart"), and XXXXX XXXXXX
REAL ESTATE COMPANY, a Delaware corporation ("Xxxxx-Xxxxxx"; together with
Dart, the "Dart Parties").
WITNESSETH:
WHEREAS, RSH claims to be directly the owner of the
partnership interests set forth on Exhibit A-2 in the "CP/Partnerships" named
on Exhibit A-1;
WHEREAS, RSH claims to own and control, directly or
indirectly, the entities named in Exhibit A-3 (the "RSH Entities"), and the RSH
Entities claim to be the owners of the partnership interests set forth on
Exhibit A-3 in the CP/Partnerships;
WHEREAS, Xxxxxxx X. Xxxx ("HHH") claims to own certain
CP/Partnership Interests owned by RSH or the RSH Entities, and the ownership
structure of the CP/Partnerships alleged by HHH is listed on Exhibit A-5 (the
"Disputed Partnership Interests");
WHEREAS, Xxxxx-Xxxxxx and each CP/Partnership are joint
venture partners in the entities named in Exhibit A-4 (the "Joint Ventures")
and each Joint Venture is the direct or indirect owner of the "Property"
ascribed to it on Exhibit B;
WHEREAS, Dart and RSH are adverse parties in the lawsuits
captioned Xxxxxx X. Xxxx v. Dart Group Corporation, Delaware Xxxxxxxx Xxxxx,
XX-00000 and Xxxx X. Xxxx and the Tudor Trust v. Xxxxxxx Xxxx, Del. Ch. C.A.
No. 13154 and, simultaneously with the execution and delivery of this
Agreement, have entered into that certain Settlement Agreement of even date
herewith pursuant to which Dart and RSH have agreed to settle such lawsuits on
the terms, and subject to the conditions, set forth therein (the "Settlement
Agreement");
WHEREAS, each of Dart and RSH, as a condition to entering into
the Settlement Agreement, has required that the other party execute and deliver
this Agreement and the documents, agreements and instruments to be delivered
pursuant to this Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual promises and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
RSH, Dart and Xxxxx-Xxxxxx hereby agree as follows:
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ARTICLE 1. DEFINITIONS
Capitalized terms not otherwise defined herein shall have the
meaning ascribed to such terms in the Settlement Agreement. In addition to the
terms defined elsewhere in this Agreement, the following terms have the
meanings set forth below unless the context clearly requires otherwise:
1.1 Attributed Interest. Shall mean a projected amount
of interest which would accrue, at a simple rate of interest of 6.0% per annum,
on (i) the Escrow Funds in the C-M Escrow Account from the date of calculation
through the Termination Date and (ii) the Escrow Funds in the RSH Escrow
Account from the date of calculation through the earlier of (A) the date which
is 30 months after the date of calculation or (B) the date which is 30 months
after the date on which an aggregate $5 million has been deposited into the RSH
Escrow Account.
1.2 C-M Escrow Account. Shall have the meaning ascribed
to it in Section 3.3.
1.3 Xxxxx-Xxxxxx Retention. Shall mean, collectively,
the Escrow Funds, plus the Attributed Interest.
1.4 Escrow Accounts. Shall mean, collectively, the C-M
Escrow Account and the RSH Escrow Account.
1.5 Escrow Funds. Shall mean the amounts, if any, on
deposit from time to time in the C-M Escrow Account and the RSH Escrow Account
including any interest credited to such accounts.
1.6 Liquidated Reserved Obligations. Shall have the
meaning ascribed to it in Section 5.1.
1.7 Obligations. Shall have the meaning ascribed to it
in Section 3.5.
1.8 RSH Available Funds. Shall mean the amount, if any,
by which the Xxxxx-Xxxxxx Retention exceeds the sum of (i) the Reserved
Obligations and (ii) the Warehouse Reserve.
1.9 RSH Escrow Account. Shall have the meaning ascribed
to it in Section 3.1.
1.10 Reserved Obligations. Shall have the meaning
ascribed to it in Section 4.1(a).
1.11 Retained Distributions. Shall have the meaning
ascribed to it in Section 3.3.
1.12 Settlement Funds. Shall have the meaning ascribed to
it Section 8.2(a).
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1.13 Termination Date. Shall mean October 6, 2000.
1.14 Warehouse Funds. Shall mean the amount, if any, up
to an aggregate $31,000,000.00 of RSH Available Funds after the first $16
million of RSH Available Funds, if any.
1.15 Warehouse Reserve. Shall have the meaning ascribed
to it in Section 7.1.
ARTICLE 2. CLOSING.
2.1 Closing Transactions. In order to effectuate the
transactions contemplated by the Settlement Agreement, the following documents
and instruments (together with this Agreement, the "Master Agreement
Documents") shall be executed and delivered, in form and substance reasonably
satisfactory to both parties, at the closing of such transactions which shall
occur on the date hereof at the offices of Xxxxx, Day, Xxxxxx & Xxxxx, 0000 X
Xxxxxx, XX, Xxxxxxxxxx, X.X. 00000 (the "Closing"). Dart hereby agrees that it
will cause Xxxxx-Xxxxxx to execute and deliver to RSH such Master Agreement
Documents as to which Xxxxx-Xxxxxx is a party.
(a) Xxxxx-Xxxxxx shall execute and deliver to RSH, and RSH
shall execute and deliver, or cause to be executed and delivered, to
Xxxxx-Xxxxxx, the amended and restated joint venture agreements of
CM/CP Greenbriar Office Joint Venture, CM/CP Greenbriar Retail Joint
Venture, CM/CP Bull Run Joint Venture, CM/XX Xxxxxxxx Center Joint
Venture and CM/XX Xxxxxx Xxxxxx Plaza Joint Venture in the forms
attached as Exhibit X-0, X-0, X-0, X-0 and C-5 (collectively, the "JV
Agreements");
(b) RSH shall have executed and delivered, or caused to be
executed and delivered, to the Dart Parties, the Pledge of Undisputed
Partnership Interests and the Pledge of Disputed Partnership Interests
in the forms attached as Exhibits D-1 and D-2 and the Partnership
Stock Pledge Agreement in the form attached as Exhibit D-3
(collectively, the "Pledge Agreements");
(c) the Dart Parties shall execute and deliver to RSH and
SettlementCorp ("Escrow Agent") and RSH shall execute and deliver, or
cause to be executed and delivered, to the Dart Parties and Escrow
Agent, the Escrow and Security Agreement in the form attached as
Exhibit E (the "Escrow Agreement");
(d) RSH shall execute and deliver, or cause to be executed
and delivered, to the Dart Parties UCC-1 financing statements
evidencing the encumbrances granted pursuant to the Pledge Agreements,
the Escrow Agreement and the other Settlement Documents (as defined in
Section 3.5), and Cabot-
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Xxxxxx shall deliver to RSH UCC-1 financing statements evidencing
Xxxxx-Xxxxxx'x obligation to pay certain distributions from the Joint
Ventures into the C-M Escrow Account;
(e) The Dart Parties shall execute and deliver to RSH, and
RSH shall execute and deliver, or cause to be executed and delivered,
to the Dart Parties, the Purchase Agreement [Pennsy Drive Warehouses]
("Warehouse I Purchase Agreement"), the Purchase Agreement [Warehouse
Partnership Interests] ("Warehouse II Purchase Agreement")and the
Disputed Partnership Interest Purchase Agreement [Warehouses]
("Warehouse III Purchase Agreement"), each of even date herewith in
the form attached as Exhibits F-1, F-2 and F-3 (the "Warehouse
Purchase Agreements") pursuant to which RSH has agreed to convey or
cause to be conveyed to Dart or its designees certain interests in the
entities named in Exhibit G-1 (the "Warehouse Partnerships") and/or
the properties set forth on Exhibit G-2 (the "Warehouse Properties");
and the Dart Parties shall execute and deliver to RSH, and RSH shall
execute and deliver, or cause to be executed and delivered, to the
Dart Parties, each of the agreements, documents or instruments that
are to be delivered pursuant thereto (collectively with Warehouse
Purchase Agreements, the "Warehouse Documents");
(f) RSH shall cause each Property Owning Entity (as defined
in Exhibit A-4) to execute and deliver to the Dart Parties a Guaranty
in the form attached as Exhibit H (the "Guaranties") and RSH shall
cause Combined Properties/Greenbriar Office Limited Partnership to
execute and deliver to the Dart Parties the Indemnity Deed of Trust
with respect to the Property owned by Combined Properties/Greenbriar
Office Limited Partnership (the "Indemnity Deed of Trust") in the form
attached as Exhibit I; and
(g) RSH shall cause CM/CP Bull Run Joint Venture to
execute and deliver to Xxxxx-Xxxxxx, and Xxxxx-Xxxxxx shall execute
and deliver to CM/CP Bull Run Joint Venture, the Amendment to Loan
Agreement in the form attached as Exhibit J-1 (the "Loan Amendment")
and Xxxxx-Xxxxxx shall execute and deliver to RSH the Allonge, the
Assignment of Deed of Trust and the Assignment of Loan Documents in
the form attached as Exhibit J-2.
2.2 Post-Closing Transactions. (a) Promptly after the
Closing, RSH shall deliver, or cause to be delivered, to the Dart Parties all
such consents, waivers or approvals, if any, as are required pursuant to the
loan documents relating to any loan to any Joint Venture, Greenbriar Limited
Partnership (as defined in Exhibit A-4), CP/Partnership or with respect to any
Property (as each such loan and loan document is set forth on Exhibit K) (the
"Underlying Loan Documents"). Upon the request of the Dart Parties and subject
to receiving any consent of lenders required
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under the Underlying Loan Documents, RSH shall cause each Property Owning
Entity (other than Combined Properties/Greenbriar Office Limited Partnership)
to execute and deliver an Indemnity Deed of Trust with respect to the Property
owned by each such Property Owning Entity substantially in the form attached as
Exhibit I. RSH shall, and shall cause the Property Owning Entities to,
cooperate with the Dart Parties in securing any consents by lenders required
under the Underlying Loan Documents to the Property Owning Entities entering
into such Indemnity Deeds of Trust. Any costs or expenses charged by such
lenders in connection with such consents shall be paid by the Dart Parties.
Xxxxx-Xxxxxx hereby consents to and authorizes the managing general partners of
the Joint Ventures to execute and deliver, or cause to be executed and
delivered, any Settlement Documents (as defined in Section 3.5) to be executed
by the Joint Ventures or the Greenbriar Limited Partnerships (as defined in
Exhibit A-4).
(b) In the event RSH proposes that any Joint Venture
owning a Property in Virginia be converted into a limited partnership,
Xxxxx-Xxxxxx agrees to review promptly any such proposal and not to
unreasonably withhold its consent thereto. Any limited partnership agreement
proposed to effect such conversion shall be on substantially the same terms as
the JV Agreement for such Joint Venture with such changes as are appropriate to
reflect a limited partnership structure.
ARTICLE 3. ESCROW ACCOUNTS; SECURITY INTERESTS; OBLIGATIONS
3.1 RSH Escrow Account; Security Interests. (a) RSH
hereby agrees that in the event any Joint Venture or Property is sold RSH will
cause the distributions or sale proceeds described in Section 3.1(b) to be paid
to the escrow account (the "RSH Escrow Account") maintained by Escrow Agent
under the Escrow Agreement to receive payments from the RSH Obligors (as
defined in Section 3.5). All such funds shall be held in the RSH Escrow
Account pursuant to the Escrow Agreement and released from the RSH Escrow
Account on the terms, and subject to the conditions, set forth in the Escrow
Agreement and Sections 6.1(b), 8.1 and 9.2. Pursuant to the Escrow Agreement,
RSH will pledge and grant a security interest in, and will cause each RSH
Entity to pledge and grant a security interest in, the RSH Escrow Account, as
security for the Obligations.
(b) The obligation under Section 3.1(a) to deposit
distributions or sales proceeds into the RSH Escrow Account shall apply to any
distributions or sales proceeds which are directly or indirectly receivable by
any RSH Obligor upon any sale of any Joint Venture or Property which occurs
after any two of the Joint Ventures or Properties have been sold (including
that such obligation applies to any group or series of sales after which the
number of Joint Ventures or Properties sold would exceed two). Upon any such
sale the RSH Obligor entitled to receive distributions or sale proceeds shall
pay into the RSH Escrow Fund
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the portion of the funds receivable by such RSH Obligor that is equal to the
product of $5.0 million multiplied by the quotient of the Stipulated Value (as
defined below) with respect to the Joint Venture or Property being sold divided
by the Stipulated Value of the Joint Ventures or Properties not yet sold
(including any Joint Venture or Property then being sold) multiplied by one
hundred ten percent (110%); provided, however, that upon the sale of the last
Property to be sold the RSH Obligor or RSH Obligors entitled to receive
distributions or sale proceeds shall pay into the RSH Escrow Fund such amount
as is necessary so that the aggregate distributions or sales proceeds deposited
into the RSH Escrow Account is at least $5.0 million; provided, further, that
in the event the pledge pursuant to the Pledge Agreements by any RSH Obligor
shall become wholly or partially invalid or unenforceable, upon the sale of any
Joint Venture or Property the RSH Obligors entitled to receive distributions or
sale proceeds as a consequence of any such sale shall deposit all such
distributions or sales proceeds into the RSH Escrow Account until the aggregate
distributions or sales proceeds deposited into the RSH Escrow Account is at
least $5.0 million (taking into account, if applicable, reductions in the
amount on deposit as a consequence of any refund or repayment arising in
connection with any invalidation or unenforceability). The "Stipulated Value"
of each Property and Joint Venture is the value set forth opposite the name of
such Joint Venture on Exhibit L.
(c) Subject to the second proviso of the second sentence of
Section 3.1(b), the obligation under this Section 3.1 to make payments into the
RSH Escrow Account shall terminate on the earlier to occur of (i) such time as
the cumulative distributions or sales proceeds deposited into the RSH Escrow
Account equal $5.0 million, (ii) the date on which the Reserved Obligation
described under Section 4.1(a)(iv) shall cease in its entirety to be a Reserved
Obligation pursuant to Section 4.1(b)(iv) or (iii) the date on which the Escrow
Funds, plus Escrow Attributed Interest (as defined below) exceeds the sum of
the aggregate amount of (A) the Reserved Obligations and (B) the Warehouse
Reserve. For purposes of this Section 3.1(c) "Escrow Attributed Interest"
shall mean a projected amount of interest which would accrue at a simple rate
of interest of 6.0% per annum on (i) the Escrow Funds in the C-M Escrow Account
from the date of calculation through the Termination Date and (ii) the Escrow
Funds in the RSH Escrow Account from the date of calculation through the date
which is 30 months after the date of calculation.
3.2 Limits on Pledge and Assignment. It is intended that
the assignments and security interests created under the Escrow Agreement and
the Pledge Agreements are pledges of general intangibles governed by Section
9-318 of the Uniform Commercial Code, as adopted in any jurisdiction relevant
to this Agreement. However, if and to the extent the provisions of the Escrow
Agreement or any Pledge Agreement would allow any other partner in any Joint
Venture, Greenbriar Limited Partnership, CP/Partnership or RSH Obligor to
invoke a right of first offer or
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first refusal with respect to any such interest and such other partner
indicates a desire to do so, then, without further action by the parties
hereto, the provisions of the Escrow Agreement and/or such Pledge Agreement
shall be suspended immediately with respect to such interest, and, if
necessary, shall become null and void, with respect to such interest until such
time, if any, as such right of first offer or first refusal is no longer
applicable or waived.
3.3 C-M Escrow Account. The parties hereto hereby agree
that in the event any Joint Venture or Property is sold Xxxxx-Xxxxxx will cause
up to a maximum cumulative aggregate amount of $47.0 million of (i)
distributions received by Xxxxx-Xxxxxx from any Joint Venture from proceeds of
such sales or (ii) the proceeds of such sales received by Xxxxx-Xxxxxx for
selling its interest in any Joint Venture (the "Retained Distributions") to be
deposited into the escrow account (the "C-M Escrow Account") maintained by
Escrow Agent under the Escrow Agreement to receive payments from Xxxxx-Xxxxxx.
The foregoing obligation shall apply only to distributions or proceeds
receivable by Xxxxx-Xxxxxx following receipt by Xxxxx-Xxxxxx of $2.0 million
from the sale of the first one or more Joint Ventures, or Properties to be sold
after the Closing.
3.4 Xxxxx-Xxxxxx Retention. The parties hereto agree
that the Retained Distributions which are to be placed into the C-M Escrow
Account plus the amounts placed into the RSH Escrow Account are to constitute a
reserve for the Reserved Obligations and the Warehouse Reserve and so long as
they remain in reserve, are available to satisfy the payment when due and
payable of the Obligations.
3.5 Obligations. RSH hereby acknowledges and agrees
that the Xxxxx-Xxxxxx Retention shall secure the prompt payment, performance
and observance of all present and future debts, obligations and liabilities of
RSH, or any other obligor controlled by RSH (collectively with RSH, the "RSH
Obligors"), under this Agreement, the other Master Agreement Documents, the
Settlement Agreement and each other agreement, document or instrument to be
executed and delivered in connection with any of the foregoing (collectively,
the "Settlement Documents") arising pursuant to, or on account of, the
Settlement Documents, including, without limitation, the obligations of the RSH
Obligors to Dart (on its own behalf and as agent and bailee for itself and
Xxxxx-Xxxxxx), Xxxxx-Xxxxxx and/or any collateral agent, bailee or escrow agent
acting on behalf of Dart or Xxxxx-Xxxxxx (i) to pay any indemnification
obligation under this Agreement or any other Settlement Document, and any and
all other sums due (including applicable interest thereon) at any time
thereunder, (ii) to pay principal of, interest on, and all other amounts
payable pursuant to, the $27.4 Million Note, the $37 Million Note and the $11.6
Million Note (as such terms are defined in the Settlement Agreement), including
any amendment, extension or renewal thereof, or any exchange or substitution
therefor, and (iii) to pay all other amounts, and perform,
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observe and comply with all of the terms, covenants and conditions which are to
be performed, observed or complied with by the RSH Obligors under any
Settlement Document (collectively, the "Obligations").
ARTICLE 4. RESERVED OBLIGATIONS
4.1 Reserved Obligations.
(a) For purposes of this Agreement the parties hereto
stipulate and agree that the amount of the "Reserved Obligations" at any time
shall equal the aggregate amount of the following as calculated from time to
time:
(i) the outstanding principal of and all other amounts
(other than interest) payable pursuant to, the $11.6 Million Note;
(ii) $5.0 million, plus accrued but unpaid interest on
such amount, relating to the RSH Contested Class A Shares which are
subject to a claim of ownership by Xxxxxx X. Xxxx ("RMH"), Xxxxx X.
Xxxx ("LGH") and HHH;
(iii) $2.8 million, plus accrued but unpaid interest on such
amount, relating to the RSH Pledged Class A Shares which are subject
to a pledge to First Union National Bank or any affiliate, successor
or assign thereof; and
(iv) $24.2 million, plus accrued but unpaid interest on
such amount, payable in the event that a court of competent
jurisdiction enters a final order or grants equitable relief, in the
Rescission Action or otherwise, the effect of which is that HHH's sale
of the Redemption Class B Shares to RSH is or has been rescinded, that
Dart has not received a valid and effective assignment and transfer of
the Redemption Class B Shares from RSH as of the date hereof or that
the Redemption Class B Shares (or shares substituted therefor) must be
returned or delivered to HHH or RSH (the "Rescission Claim"), subject
to the conditions and limitations set forth in Section 5.3(c) of the
Settlement Agreement.
(b) For purposes hereof, the parties hereto stipulate and
agree that each Reserved Obligation shall be reduced or cease to be a Reserved
Obligation if and to the extent the conditions set forth below for such
Reserved Obligation are satisfied.
(i) $11.6 Million Note. The Reserved Obligation relating
to the $11.6 Million Note shall be reduced by the aggregate amount of
principal of the $11.6 Million Note received by Dart and shall cease
to be a Reserved Obligation at such time as all principal or other
amounts (other than interest) payable under the $11.6 Million Note are
paid in full.
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(ii) RSH Contested Class A Shares. The amount of the
Reserved Obligation relating to the RSH Contested Class A Shares shall
be reduced or cease to be a Reserved Obligation if:
(A) An order of a court of competent jurisdiction
has been entered pursuant to which RSH has been determined to
be the owner of the RSH Contested Class A Shares as against
claims to the RSH Contested Class A Shares by RMH, LGH and
HHH, and the decision has become final after the period for
appealing such decision has expired; or
(B) The statute of limitations on any claim of
RMH, LGH and HHH to the RSH Contested Class A Shares has
lapsed and no claim with respect thereto has been filed and is
pending with any court.
In the event only a portion of the RSH Contested Class A Shares are
determined to be owned by RSH as provided in clause (A), the Reserved
Obligation relating to the RSH Contested Class A Shares shall be
reduced by an amount equal to the number of shares so owned by RSH
multiplied by the Buy/Sell Class A Share Price (as defined in the
Buy/Sell/Offering Agreement).
(iii) RSH Pledged Class A Shares. The amount of the Reserved
Obligation relating to the RSH Pledged Class A Shares shall be reduced
or cease to be a Reserved Obligation if:
(A) The RSH Pledged Class A Shares shall be free
and clear of any lien, security interest, pledge,
hypothecation, mortgage, deed of trust, conditional sale or
other title retention agreement, claim, charge, tax
assessment, encumbrance or other restriction of any kind or
character ("Lien") of First Union National Bank, or any
affiliate, successor or assigns thereof; or
(B) Dart shall own the loans which are secured
by the Lien on the RSH Pledged Class A Shares and RSH shall
have paid the principal amount of, and all accrued interest
on, $1,494,945 of such loans and 21.36% of all other amounts
due and payable in connection with such loans.
In the event only a portion of the RSH Pledged Class A Shares become
free of all Liens as provided in clause (A), the Reserved Obligation
relating to the RSH Pledged Class A Shares shall be reduced by an
amount equal to the number of shares free of Liens multiplied by the
Buy/Sell Class A Share Price (as defined in the Buy/Sell/Offering
Agreement). In the event only a portion of the balance of the loan is
paid by RSH as provided in clause (B), the Reserved
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Obligation relating to the RSH Pledged Class A Shares shall be equal
to the amount of principal of, interest on, and all other amounts due
and payable in connection with, such loan outstanding from time to
time.
(iv) Rescission Claim. (A) The amount of the Reserved
Obligation relating to the Rescission Claim shall be reduced by the
amount of funds, if any, Dart receives with respect to any repayment
by HHH of any and all payments made by or on behalf of RSH to HHH as
consideration for acquiring the Redemption Class B Shares, including
the payments to HHH of amounts under the HHH Note.
(B) (i) The Reserved Obligation relating to the
Rescission Claim shall cease to be a Reserved Obligation if the
Rescission Action has been dismissed with prejudice or an order of a
court of competent jurisdiction has been entered, in either case
pursuant to which RSH has been determined to be the owner of the
Redemption Class B Shares as against claims to the ownership of, or
authority to vote, the Redemption Class B Shares or shares issued in
substitution therefor by HHH, such dismissal or order has become final
after the period for appealing such dismissal or order has expired,
and no other claim seeking the rescission of the sale from HHH to RSH
of the Redemption Class B Shares or shares issued in substitution
therefor and/or the right to own or vote the Redemption Class B Shares
or shares issued in substitution therefor has been filed and is
pending with any court.
(ii) The Reserved Obligation relating to the Rescission Claim
shall be reduced by $16.2 million in the event a court of competent
jurisdiction enters an order the effect of which is that RSH has been
determined to be the owner of the Redemption Class B Shares as against
claims to the ownership of the Redemption Class B Shares by HHH, but
RSH may not assign and transfer the Redemption Class B Shares or
shares issued in substitution therefor during HHH's lifetime (or until
the termination of the proxy granted by RSH to HHH in July 1993 to
vote the Redemption Class B Shares), such order has become final after
the period for appealing such order has expired without an appeal
having been filed, and no other claim seeking the rescission of the
sale from HHH to RSH of the Redemption Class B Shares and/or the right
to own or vote the Redemption Class B Shares or shares issued in
substitution therefor has been filed; provided, however, that in such
event the remaining $8.0 million of the Reserved Obligation relating
to the Rescission Claim shall cease to be a Reserved Obligation if and
when the Redemption Class B Shares are transferred to Dart as provided
for in Section 1.1(f) of the Settlement Agreement.
(C) Notwithstanding the foregoing, the Reserved Obligation
relating to the Rescission Claim shall remain in effect in its
entirety so long as RSH remains obligated to
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deliver the Redemption Class B Shares to Dart pursuant to Section
5.3(c) of the Settlement Agreement.
ARTICLE 5. LIQUIDATED OBLIGATIONS; DUE AND PAYABLE OBLIGATIONS
5.1 Liquidated Reserved Obligations. (a) For purposes
of releasing Escrow Funds for the payment of Obligations as provided in Section
6.1, the parties hereto stipulate and agree that each Reserved Obligation shall
be deemed "due and payable" and therefore constitute a "Liquidated Reserved
Obligation" as provided below.
(1) $11.6 Million Note. The Reserved Obligation relating
to the $11.6 Million Note shall become due and payable (A) when any
prepayment of the $11.6 Million Note is required by paragraph 5.b. or
5.c. thereof and/or (B) on the maturity date of the $11.6 Million
Note.
(2) RSH Contested Class A Shares. The Reserved
Obligation relating to any RSH Contested Class A Shares shall become
due and payable (A) when payment is required under Section 5.2 of the
Settlement Agreement, (B) when any prepayment of the $37 Million Note
is required by paragraph 5.b. thereof if prior to the time of the
closing of the purchase and sale of Buy/Sell Class A Shares (as
defined in the Buy/Sell Offering Agreement) pursuant to the
Buy/Sell/Offering Agreement, a court of competent jurisdiction has
determined that RSH is not the owner of all or a portion of the RSH
Contested Class A Shares, and the period for appealing such decision
has expired without an appeal having been filed and/or (C) on the
Termination Date. In the event a court determines that RSH owns only
a portion of the RSH Contested Class A Shares, the Reserved Obligation
relating to the RSH Contested Class A Shares shall become due and
payable in an amount equal to the number of such RSH Contested Class A
Shares not owned by RSH multiplied by the Buy/Sell Class A Share Price
(as defined in the Buy/Sell/Offering Agreement).
(3) RSH Pledged Class A Shares. The Reserved Obligation
relating to any RSH Pledged Class A Shares shall become due and
payable (A) when any prepayment of the $37 Million Note is required by
paragraph 5.b. thereof if at the time of the closing of the purchase
and sale of Buy/Sell Class A Shares (as defined in the
Buy/Sell/Offering Agreement) pursuant to the Buy/Sell/Offering
Agreement, RSH no longer owns all the RSH Pledged Class A Shares, (B)
when any prepayment of the $37 Million Note is required by paragraph
5.c. thereof and/or (C) on the Termination Date. In the event the
secured party holding a Lien on the RSH Pledged Class A Shares sells
or otherwise disposes of only a portion of the RSH Pledged Class A
Shares, the Reserved Obligation relating to the RSH Pledged Class A
Shares shall
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become due and payable in an amount equal to the number of RSH Pledged
Class A Shares so sold or disposed of multiplied by the Buy/Sell Class
A Share Price (as defined in the Buy/Sell/Offering Agreement).
(4) Rescission Claim. The Reserved Obligation relating
to the Rescission Claim shall become due and payable (A) when and to
the extent payment is required as provided in Sections 5.3(b)(ii) and
5.3(c) of the Settlement Agreement (excluding the payments required
under the $37 Million Note described in such sections), (B) when any
prepayment of the $37 Million Note is required by paragraph 5.d.
thereof and/or (C) on the Termination Date.
(b) Except as provided in the following sentence, any
Obligation other than the Reserved Obligations shall be deemed "due and
payable" in accordance with the terms and conditions specified in the
Settlement Document under which such Obligation arises. Any Obligation arising
(i) under Article 4 of the Settlement Agreement (or other indemnity of general
application set forth in any other Settlement Document) for indemnification by
RSH or any RSH Obligor for a breach of representation, warranty, covenant or
agreement in the Settlement Documents or (ii) the failure of RSH or any other
RSH Obligor to perform, observe or comply with any term, covenant or condition
to be performed, observed or complied with under the Settlement Documents shall
be deemed "due and payable" only when a court of competent jurisdiction decides
that RSH is obligated to pay such Obligation and the period for appealing such
decision has expired without an appeal having been filed; provided, however,
that clause (ii) above shall not apply to payments under the $37 Million Note,
the $27.4 Million Note, the $11.6 Million Note or the Buy/Sell/Offering
Agreement or the payment of any specific amount which any Settlement Document
specifies as due and payable on a specified date or upon the occurrence of
specified events or conditions.
(c) Subject to the provisions of Section 6.1(b), Dart, in its sole
discretion, may determine the order of application to the Obligations of funds
released from the Escrow Funds to Dart and/or Xxxxx-Xxxxxx. The failure to
prepay all or any portion of any prepayment obligation under the $27.4 Million
Note, the $37 Million Note or the $11.6 Million Note from available Escrow
Funds as a consequence of Dart applying such Escrow Funds to other Obligations
shall not constitute an Event of Default (as defined in such promissory notes)
arising from a failure by RSH to pay when due principal of and interest on any
such required prepayment on the $27.4 Million Note, the $37 Million Note or the
$11.6 Million Note.
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13
ARTICLE 6. RELEASE OF ESCROW FUNDS TO XXXXX XXXXXX
6.1 Escrow Release. (a) Funds deposited into the C-M
Escrow Account shall be held for purposes of satisfying claims for any
Obligation and in the event any Obligation becomes due and payable in
accordance with the provisions of Section 5.1 (including any Reserved
Obligation becoming a Liquidated Reserved Obligation), funds on deposit in the
C-M Escrow Account shall be paid over to Xxxxx-Xxxxxx and/or Dart and applied
to the payment of such Obligation.
(b) Funds deposited into the RSH Escrow Account shall be held for
purposes of satisfying claims for the Reserved Obligation described under
Section 4.1(a)(iv) and in the event such Reserved Obligation becomes a
Liquidated Reserved Obligation, the funds on deposit in the RSH Escrow Account
shall be paid over to Dart and applied to the payment of such Liquidated
Reserved Obligation before any funds on deposit in the C-M Escrow Account are
paid over to Dart as payment of such Liquidated Reserved Obligation. In the
event the funds on deposit are less than $5.0 million, all additional funds
thereafter deposited in the RSH Escrow Account shall be paid over to Dart
and/or Xxxxx-Xxxxxx and applied to payment of such Liquidated Reserved
Obligation or any other Obligation which becomes due and payable before any
funds on deposit in the C-M Escrow Account are applied to such Liquidated
Reserved Obligation or any other Obligation.
ARTICLE 7. PROVISIONS RELATING TO THE WAREHOUSES
7.1 Warehouse Reserve. (a) Pursuant to the Warehouse
Purchase Agreements, RSH has agreed either (i) to cause the leases between the
current owners of the Warehouse Properties and Dart and/or Trak to be amended
as set forth in the Warehouse Purchase Agreements (the "Lease Amendments")
and/or (ii) to convey certain rights related to, or interests in, the Warehouse
Partnerships. RSH hereby agrees that the C-M Escrow Account shall be used as a
reserve, for the benefit of the Dart Parties, in the amount of $31.0 million to
insure that Dart and/or Trak realize at least $31.0 million of the benefits
intended to be provided to Dart and/or Trak by the Warehouse Purchase
Agreements (the "Warehouse Reserve").
(b) The benefits intended to be provided to Dart, Trak or
Dart's designees under the Warehouse Purchase Agreements may be provided by
means of (i) the Lease Amendments, (ii) the conveyance of "Prospective Economic
Benefits" pursuant to the Warehouse Purchase Agreements, (iii) the purchase and
sale of "Interim Partnership Interests", "Interim Economic Interests",
"Remainder Partnership Interests" and "Remainder Economic Interests" pursuant
to the Warehouse Purchase Agreements and/or (iv) the reimbursement by RSH to
the Dart Parties of any fees
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14
under the management contracts (the "Management Agreements") for the Warehouse
Properties between the current owner of the Warehouse Properties and Combined
Properties Incorporated ("CPI") which are paid by the Dart Parties or any
Warehouse Partnership. To the extent any distributions or other payments
(excluding interest) are received by Dart, Trak or Dart's designees as a
consequence of the foregoing transactions contemplated by the Warehouse
Documents, any amounts so received shall reduce the amount of the Warehouse
Reserve.
7.2 Reductions in Warehouse Reserve. The Warehouse
Reserve shall be reduced at such times and to the extent provided below.
(a) Pennsy Warehouse I. The Warehouse Reserve shall be
reduced in the amount of:
(i) $4,800,000 if RSH shall have caused the execution
and delivery of the Lease Amendment for Pennsy Warehouse I and
such Lease Amendment shall be in full force and effect, and
either:
(X) an order of a court of competent
jurisdiction has been entered pursuant to which such
Lease Amendment shall have been determined to be
binding and enforceable against 0000 Xxxxxx Xxxxx
Associates in a lawsuit brought by any partner in
0000 Xxxxxx Xxxxx Associates (other than RSH) seeking
to rescind such Lease Amendment or seeking damages
for the portion of such partner's partnership
percentage of the amount by which rent payable under
the lease has been reduced by such Lease Amendments,
and the period for appealing such order shall have
expired without an appeal having been filed; or
(Y) the statute of limitations
applicable to any lawsuit described in clause (X)
above shall have lapsed and no claim with respect
thereto shall have been filed and be pending with any
court.
(ii) $1,440,000 if the conditions set forth in the
foregoing clause (i) shall have not been satisfied, but RSH
shall have caused the execution and delivery of the Lease
Amendment for Pennsy Warehouse I and such Lease Amendment
shall be in full force and effect, and an order of a court of
competent jurisdiction has been entered (A) pursuant to which
such Lease Amendment shall have been determined to be binding
and enforceable against 0000 Xxxxxx Xxxxx Associates (other
than RSH) and (B) awarding damages to a partner (other than
RSH) not in excess of the portion of such partner's
partnership percentage of the amount by which rent payable
under the lease has been reduced by such
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15
Lease Amendments, and the period for appealing such order
shall have expired without an appeal having been filed.
(ii) $1,440,000 if the conditions set forth in the
foregoing clauses (i) through (ii) shall have not been
satisfied, but RSH shall have conveyed the "Remainder
Partnership Interest" and the "Remainder Economic Interest" in
0000 Xxxxxx Xxxxx Associates to Dart pursuant to Sections 4
and 12 of the Warehouse II Purchase Agreement and at least 20%
of the partnership interests in 0000 Xxxxxx Xxxxx Associates
being conveyed to Dart as the "Disputed Partnership Interest"
and the "Disputed Economic Interest" pursuant to Sections 1
and 7 of the Warehouse III Purchase Agreement and such
conveyances shall be in full force and effect, and:
either:
(X) an order of a court of competent
jurisdiction has been entered pursuant to which all
such conveyances in 0000 Xxxxxx Xxxxx Associates
shall have been determined to be binding and
enforceable against 0000 Xxxxxx Xxxxx Associates and
the partners therein in a lawsuit brought by any
partner in 0000 Xxxxxx Xxxxx Associates (other than
RSH) seeking to rescind such conveyance and
admission, and the period for appealing such order
shall have expired without an appeal having been
filed; or
(Y) the statute of limitations
applicable to any lawsuit described in clause (X)
above shall have lapsed and no claim with respect
thereto shall have been filed and be pending with any
court.
(b) Pennsy Warehouses II, III and III Addition. The
Warehouse Reserve shall be reduced in the amount of:
(i) $18,200,000 if RSH shall have conveyed fee
title to Pennsy Warehouses II, III, and III Addition to Pennsy
Newco (as such term is defined in the Warehouse I Purchase
Agreement) pursuant to Section 1 of the Warehouse I Purchase
Agreement, the covenant relating to the delivery of
"Prospective Economic Benefits" in Pennsy Newco to Dart
pursuant to Section 2 of the Warehouse I Purchase Agreement
shall be in full force and effect, Pennsy Newco shall have
received title insurance with respect to such Warehouse
Properties as required by Section 7.1 of the Warehouse I
Purchase Agreement, and all other conditions required by
Section 11 of the Warehouse I Purchase Agreement with respect
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16
to Pennsy Warehouses II, III and III Addition shall have been
performed.
(ii) $12,133,333 if the conditions set forth in the
foregoing clause (i) shall have not been satisfied, but RSH
shall have conveyed fee title to Pennsy Warehouses II, III and
III Addition to Pennsy Newco pursuant to Section 1 of the
Warehouse I Purchase Agreement, and the conveyance of the
"Remainder Interest" and the "Remainder Economic Interest" in
Pennsy Newco to Dart pursuant to Section 3 of the Warehouse I
Purchase Agreement shall be in full force and effect.
(c) 75th Avenue Headquarters and 75th Avenue Wooded Lot.
The Warehouse Reserve shall be reduced in the amount of:
(i) $15,550,000 if the U.S. Bankruptcy Court for the
District of Maryland, Southern Division (the "Bankruptcy
Court") shall have entered a Final Order (defined below)
approving the Plans of Reorganization for the 00xx Xxxxxx
Headquarters and the 75th Avenue Wooded Lot (as such terms are
defined in the Warehouse II Purchase Agreement) in accordance
with the requirements of the Warehouse II Purchase Agreement
and such Plans of Reorganization shall have been fully
implemented in accordance with their respective terms. For
purposes of this Section 7.2, "Final Order" shall mean an
order by the applicable court as to which (a) no appeal has
been taken or motion for reconsideration filed and the time
period for any such filing shall have expired, or (b) if an
appeal has been taken or reconsideration sought, no stay of
such order pending appeal or motion for reconsideration shall
have been obtained; or
(ii) $15,550,000 if the conditions set forth in the
foregoing clause (i) shall have not been satisfied, but RSH
shall have caused the execution and delivery of the Lease
Amendments for 00xx Xxxxxx Xxxxxxxxxxxx xxx 00xx Xxxxxx Wooded
Lot and such Lease Amendments shall be in full force and
effect, and either:
(X) an order of a court of competent
jurisdiction has been entered pursuant to which such
Lease Amendments shall have been determined to be
binding and enforceable against Seventy-Fifth Avenue
Associates in a lawsuit brought by any partner in
Seventy-Fifth Avenue Associates (other than RSH)
seeking to rescind such Lease Amendments or seeking
damages for the portion of such partner's partnership
percentage of the amount by which rent payable under
the lease has been reduced by such Lease Amendments,
and the
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17
period for appealing such order shall have expired
without an appeal having been filed; or
(Y) the statute of limitations
applicable to any lawsuit described in clause (X)
above shall have lapsed and no claim with respect
thereto shall have been filed and be pending with any
court.
(iii) $10,366,667 if the conditions set forth in the
foregoing clauses (i) through (ii) shall have not been
satisfied, but RSH shall have caused the execution and
delivery of the Lease Amendments for 00xx Xxxxxx Xxxxxxxxxxxx
xxx 00xx Xxxxxx Wooded Lot and such Lease Amendments shall be
in full force and effect, and an order of a court of competent
jurisdiction has been entered (A) pursuant to which such Lease
Amendments shall have been determined to be binding and
enforceable against Seventy-Fifth Avenue Associates and (B)
awarding damages to any partner (other than RSH) not in excess
of the portion of such partner's partnership percentage of the
amount by which rent payable under the lease has been reduced
by such Lease Amendments, and the period for appealing such
order shall have expired without an appeal having been filed;
or
(iv) $10,366,667 if the conditions set forth in the
foregoing clauses (i) through (iii) shall have not been
satisfied, but the conveyance of the "Remainder Partnership
Interest" and the "Remainder Economic Interest" in
Seventy-Fifth Avenue Associates to Dart pursuant to Sections 4
and 12 of the Warehouse II Purchase Agreement and the
conveyance of at least one-half of the 66-2/3% of the
"Disputed Economic Interest" in Seventy-Fifth Avenue
Associates pursuant to Sections 1 and 7 of the Warehouse III
Purchase Agreement shall be in full force and effect, Dart
shall have been admitted as a limited partner to Seventy-Fifth
Avenue Associates, and:
either:
(X) an order of a court of competent
jurisdiction has been entered pursuant to which all
such conveyances in Seventy-Fifth Avenue Associates
shall have been determined to be binding and
enforceable against Seventy-Fifth Avenue Associates
and the partners therein in a lawsuit brought by any
partner in Seventy-Fifth Avenue Associates (other
than RSH) seeking to rescind such conveyance and
admission, and the period for appealing such order
shall have expired without an appeal having been
filed; or
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18
(Y) the statute of limitations
applicable to any lawsuit described in clause (X)
above shall have lapsed and no claim with respect
thereto shall have been filed and be pending with any
court.
(d) Bridgeview Warehouse. The Warehouse Reserve shall be
reduced in the amount of:
(i) $4,200,000 if the Bankruptcy Court shall have
entered a Final Order approving the Plan of Reorganization for
the Bridgeview Warehouse (as such terms are defined in the
Warehouse II Purchase Agreement) in accordance with the
requirements of the Warehouse II Purchase Agreement and such
Plan of Reorganization shall have been fully implemented in
accordance with its terms; or
(ii) $4,200,000 if the conditions set forth in the
foregoing clause (i) shall have not been satisfied, but RSH
shall have caused the execution and delivery of the Lease
Amendment for the Bridgeview Warehouse and such Lease
Amendment shall be in full force and effect, and either:
(X) an order of a court of competent
jurisdiction has been entered pursuant to which such
Lease Amendment shall have been determined to be
binding and enforceable against Trak Chicago I in a
lawsuit brought by any partner Trak Chicago I (other
than RSH) seeking to rescind such Lease Amendment or
seeking damages for the portion of such partner's
partnership percentage of the amount by which rent
payable under the lease has been reduced by such
Lease Amendment, and the period for appealing such
order shall have expired without an appeal having
been filed; or
(Y) the statute of limitations
applicable to any lawsuit described in clause (X)
above shall have lapsed and no claim with respect
thereto shall have been filed and be pending with any
court.
(iii) $2,800,000 if the conditions set forth in the
foregoing clauses (i) through (ii) shall have not been
satisfied, but RSH shall have caused the execution and
delivery of the Lease Amendment for the Bridgeview Warehouse
and such Lease Amendment shall be in full force and effect,
and an order of a court of competent jurisdiction has been
entered (A) pursuant to which such Lease Amendment shall have
been determined to be binding and enforceable against Trak
Chicago I and (B) awarding damages to a partner (other than
RSH) not in excess of the portion of such partner's
partnership
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19
percentage of the amount by which rent payable under the lease
has been reduced by such Lease Amendment, and the period for
appealing such order shall have expired without an appeal
having been filed; or
(iv) $2,800,000 if the conditions set forth in the
foregoing clauses (i) through (iii) shall have not been
satisfied, but the conveyance of the "Remainder Partnership
Interest" and the "Remainder Economic Interest" in Trak
Chicago I to Dart pursuant to Sections 4 and 12 of the
Warehouse II Purchase Agreement and the conveyance of at least
one-half of the 66-2/3% of the "Disputed Economic Interest"
pursuant to Sections 1 and 7 of the Warehouse III Purchase
Agreement shall be in full force and effect, Dart shall have
been admitted as a limited partner to Trak Chicago I, and:
either:
(X) an order of a court of competent
jurisdiction has been entered pursuant to which all
such conveyances shall have been determined to be
binding and enforceable against Trak Chicago I and
the partners therein in a lawsuit brought by any
partner in Trak Chicago I (other than RSH) seeking to
rescind such conveyance and admission, and the period
for appealing such order shall have expired without
an appeal having been filed; or
(Y) the statute of limitations
applicable to any lawsuit described in clause (X)
above shall have lapsed and no claim with respect
thereto shall have been filed and be pending with any
court.
(e) Ontario Warehouse. The Warehouse Reserve shall be
reduced in the amount of:
(i) $6,400,000 if the Bankruptcy Court shall have
entered a Final Order approving the Plan of Reorganization for
the Ontario Warehouse (as such terms are defined in the
Warehouse II Purchase Agreement) in accordance with the
requirements of the Warehouse II Purchase Agreement and such
Plan of Reorganization shall have been fully implemented in
accordance with its terms; or
(ii) $6,400,000 if the conditions set forth in the
foregoing clause (i) shall have not been satisfied, but RSH
shall have caused the execution and delivery of the Lease
Amendment for the Ontario Warehouse and such Lease Amendment
shall be in full force and effect, and either:
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(X) an order of a court of competent
jurisdiction has been entered pursuant to which such
Lease Amendment shall have been determined to be
binding and enforceable against CP/Ontario in a
lawsuit brought by any partner in CP/Ontario (other
than RSH) seeking to rescind such Lease Amendment or
seeking damages for the portion of such partner's
partnership percentage of the amount by which rent
payable under the lease has been reduced by such
Lease Amendment, and the period for appealing such
order shall have expired without an appeal having
been filed; or
(Y) the statute of limitations
applicable to any lawsuit described in clause (X)
above shall have lapsed and no claim with respect
thereto shall have been filed and be pending with any
court.
(iii) $4,266,667 if the conditions set forth in the
foregoing clauses (i) through (ii) shall have not been
satisfied, but RSH shall have caused the execution and
delivery of the Lease Amendment for the Ontario Warehouse and
such Lease Amendment shall be in full force and effect, and an
order of a court of competent jurisdiction has been entered
(A) pursuant to which such Lease Amendment shall have been
determined to be binding and enforceable against CP/Ontario
and (B) awarding damages to a partner (other than RSH) not in
excess of the portion of such partner's partnership percentage
of the amount by which rent payable under the lease has been
reduced by such Lease Amendment, and the period for appealing
such order shall have expired without an appeal having been
filed; or
(iv) $4,266,667 if the conditions set forth in the
foregoing clauses (i) through (iii) shall have not been
satisfied, but the conveyance of the "Remainder Partnership
Interest" and the "Remainder Economic Interest" in CP/Ontario
to Dart pursuant to Sections 4 and 12 of the Warehouse II
Purchase Agreement shall be in full force and effect, Dart
shall have been admitted as a limited partner to CP/Ontario
and:
either:
(X) an order of a court of competent
jurisdiction has been entered pursuant to which the
conveyance of the "Remainder Partnership Interest"
and the "Remainder Economic Interest" in CP/Ontario
shall have been determined to be binding and
enforceable against CP/Ontario and the partners
therein in a lawsuit brought by any partner in
CP/Ontario (other than RSH) seeking to rescind such
conveyance and admission, and the
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21
period for appealing such order shall have expired
without an appeal having been filed; or
(Y) the statute of limitations
applicable to any lawsuit described in clause (X)
above shall have lapsed and no claim with respect
thereto shall have been filed and be pending with any
court.
The Warehouse Reserve relating to any Warehouse Property shall cease to exist
at the time any of the conditions set forth above with respect to such
Warehouse Property are satisfied; provided, however, that the amount of the
Warehouse Reserve required at any time shall be equal to $31.0 million, less
the amount of any payments received by any of the Dart Parties with respect to
any Warehouse Property or Warehouse Partnership in accordance with Section
7.1(b). The Warehouse Reserve shall cease to exist at such time as the total
value of reductions to this Section 7.2 shall equal or exceed $31.0 million.
7.3 Acquisition of Warehouse Partnership Interests.
(a) Warehouse Funds shall be applied from time to time to
the acquisition of the interests in the Warehouse Partnerships when (i) the
"Closing" (as defined in the Warehouse I Purchase Agreement and Warehouse II
Purchase Agreement) with respect to such Warehouse Partnership can occur in
accordance with Sections 9 and 11 of the Warehouse I Purchase Agreement and
Sections 10 and 12 of the Warehouse II Purchase Agreement, as the case may be,
and (ii) the Warehouse Funds equal or exceed the consideration allocated to the
"Remainder Partnership Interests" and "Remainder Economic Interests" in the
Warehouse Partnerships (as set forth on Exhibit M; the "Allocations") with
respect to which interests are being purchased.
(b) On the Termination Date the "Remainder Partnership
Interests" and "Remainder Economic Interests" which have not been conveyed
prior to the Termination Date shall, to the extent legally possible, be
conveyed at a "Closing" for the lesser of (i) the Allocations with respect to
the "Remainder Partnership Interests" and "Remainder Economic Interests" in the
Warehouse Partnerships being purchased on the Termination Date and (ii) the
amount of the Warehouse Funds on the Termination Date.
(c) To the extent all or any portion of the Warehouse
Reserve is releasable under the terms of this Agreement and Warehouse Funds are
on deposit in the C-M Escrow Account, notwithstanding any other conditions to
the contrary contained in the Warehouse Purchase Agreements, such Warehouse
Funds shall be paid to RSH as the Allocation for the interests in the Warehouse
Partnership with respect to which the Warehouse Reserve has been released;
provided, however, that RSH shall continue to be obligated to perform all his
obligations under the Warehouse Purchase Agreements.
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ARTICLE 8. RELEASE OF ESCROW FUNDS TO RSH
8.1 RSH Escrow Release. Funds held in the RSH Escrow
Account shall be paid to RSH, and released from the Lien under the Settlement
Documents, on the earlier to occur of (i) the date which is 30 months after the
date on which $5.0 million was first on deposit in the RSH Escrow Account, (ii)
the date on which the Reserved Obligation described under Section 4.1(a)(iv)
shall cease in its entirety to be a Reserved Obligation pursuant to Section
4.1(b)(iv) and (iii) the date on which any such funds become RSH Available
Funds.
8.2 C-M Escrow Release. (a) When and to the extent RSH
Available Funds become available under the terms of this Agreement, such funds
shall be released to RSH as provided in the Escrow Agreement. The first $16.0
million of RSH Available Funds and other RSH Available Funds after the
Warehouse Funds have been delivered pursuant to Section 8.2(b) (the "Settlement
Funds") shall be released to RSH in consideration of the deliveries of RSH
pursuant to Section 1.1 of the Settlement Agreement. Upon such release, such
funds shall no longer be collateral for any of the Obligations.
(b) When and to the extent there are Warehouse Funds that
become available under the terms of this Agreement, such amounts shall be
released to RSH as provided in the Escrow Agreement in satisfaction of the
obligations of Dart under the terms and conditions of the Warehouse Purchase
Agreements. It is understood and agreed that the purchase price due and
payable under the Warehouse Purchase Agreements may be reduced as provided in
Section 7.3. Upon such release, such funds shall no longer be collateral for
any of the Obligations.
ARTICLE 9. TERMINATION DATE
9.1 Termination Date Acquisition. In the event any
Property or Joint Venture remains unsold on the Termination Date, then on the
Termination Date Xxxxx-Xxxxxx shall immediately become the managing general
partner of any Joint Venture organized as a general partnership and the sole
general partner of any Joint Venture organized as a limited partnership and
shall have the right to sell any unsold Property or Joint Venture pursuant to
the procedures set forth in Section 4.04 of each JV Agreement without the
consent of RSH, the CP/Partnerships or any other partner in such Joint
Ventures.
9.2 Termination Date. (a) On the Termination Date
Escrow Funds equal in amount to the amount of unpaid Obligations due and
payable as of the Termination Date shall be released to Dart for payment of
such Obligations. After the Termination Date Escrow Funds received upon any
sale of the Properties pursuant to
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Section 9.1 shall be deposited into the Escrow Accounts and shall be released
as provided in Section 9.2(b).
(b) After the Termination Date Escrow Funds shall be
released: (i) to Dart in accordance with Section 6.1; or (ii) to RSH in
accordance with Article 8.
(c) In the event that on or after the Termination Date
the Warehouse Reserve continues to exist and no action or proceeding is
pending, or no period remains in which to appeal an order, with respect to the
Warehouse Reserve established with respect to any Warehouse Property, Escrow
Funds equal in amount to the Warehouse Reserve for such Warehouse Property
shall be released to RSH.
(d) After the Termination Date RSH may substitute for the
Retained Distributions a letter of credit, bond or other form of security, in
each case in form and substance satisfactory to the Dart Parties, as security
for the remaining Reserved Obligations.
ARTICLE 10. COVENANTS
10.1 Further Assurances. RSH and the Dart Parties each
shall execute and deliver, and RSH shall cause to be executed and delivered,
promptly such additional documents, assignments, certificates and instruments
as the other party to this Agreement may reasonably request in order to
effectuate more effectively the transactions contemplated by the Master
Agreement Documents.
10.2 No Voluntary Bankruptcy of RSH. RSH covenants to
the Dart Parties that none of RSH, the RSH Entities, the Joint Ventures, the
Greenbriar Limited Partnerships or the CP/Partnerships has the present
intention to do any of the following: (i) apply for, or consent in writing to,
the appointment of a receiver, trustee or liquidator; (ii) file a voluntary
petition seeking relief under the U.S. Bankruptcy Code, or be unable, or admit
in writing his or its inability, to pay his or its debts as they become due; or
(iii) make a general assignment for the benefit of creditors.
10.3 Joint Ventures. (a) So long as Xxxxx-Xxxxxx remains
a partner in the Joint Ventures (including any successor to any Joint Venture),
RSH will not take, or will not cause to be taken, any action requiring the
consent of partners pursuant to Section 4.03 of each JV Agreement, unless
consented to in advance in writing by Xxxxx-Xxxxxx, which consent shall not be
unreasonably withheld.
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(b) RSH on behalf of himself and the CP/Partnerships
hereby irrevocably waives any rights granted to the CP/Partnerships under any
Joint Venture Agreement of the Joint Ventures, as in effect prior to amendment
and restatement pursuant to the JV Agreements, which would arise as a
consequence of any "change of control" (as such term is defined in the
respective Joint Venture Agreements as in effect prior to the consummation of
the transactions contemplated by this Agreement) of Xxxxx-Xxxxxx.
10.4 Specific Performance. The Dart Parties and RSH each
acknowledge and agree that in the event of any breach of this Agreement, the
non-breaching party would be irreparably harmed and could not be made whole by
monetary damages. It is accordingly agreed that the Dart Parties and RSH, in
addition to any other remedy to which they may be entitled at law or in equity,
shall be entitled to compel specific performance (including temporary
restraining orders) of this Agreement in any action instituted in the Delaware
Court of Chancery or the United States District Court for the District of
Delaware, or, in the event neither of said courts would have jurisdiction over
such action, in any court of the United States or any state having subject
matter jurisdiction. The Dart Parties and RSH each consent to personal
jurisdiction in any such action brought in the Delaware Court of Chancery or
the United States District Court for the District of Delaware.
10.5 Reporting Covenants. On or before September 1 of
each year RSH shall deliver or cause to be delivered to Dart an Affidavit of
Financial Condition of RSH, in form and substance substantially similar to, and
prepared on a basis consistent with the accounting procedures applied in, the
Affidavit of Financial Condition delivered by RSH to Dart in connection with
the entering into of the Settlement Agreement and the other Settlement
Documents.
ARTICLE 11. MISCELLANEOUS
11.1 Expenses. Except as otherwise provided in the
Settlement Documents, the parties shall pay their own respective expenses
incurred in connection with this Agreement and the transactions hereunder,
including, without limitation, any sales, transfer or other similar taxes and
fees for accountants and attorneys.
11.2 Calculation of Amounts. The amount of Retained
Distributions, Escrow Funds, Reserved Obligations, Obligations, Liquidated
Reserved Obligations, Attributed Interest, Warehouse Reserve, Xxxxx-Xxxxxx
Retention, RSH Available Funds, the amounts to be placed in the RSH Escrow
Account pursuant to Section 3.1 or other amounts calculated pursuant to this
Agreement shall be calculated by Dart (i) as of the last day of each calendar
quarter, (ii) as of any other date determined by Dart or (iii) as
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25
of the date Dart receives any notice from RSH requesting that a calculation be
made following events (other than accrual of interest) which RSH believes would
result in RSH Available Funds. The amounts so calculated, and any related
backup documentation, shall be delivered by Dart to RSH (the "Dart Calculation
Notice") within ten business days after the date of calculation and RSH shall
have fifteen business days after delivery of such notice in which to agree to
or dispute any such calculation (such calculation to be deemed final and
binding if not disputed by RSH within such time period) (the "RSH Calculation
Notice"). In the event Dart and RSH cannot agree on any such calculation or
Dart fails to deliver a calculation requested by RSH, the determination of the
calculation may be referred by either Dart or RSH to an accounting firm of
nationally-recognized standing agreed upon by Dart and RSH. In the event Dart
and RSH fail to mutually agree on an accounting firm within thirty days of the
date Dart delivered notice of the calculations to RSH, then at the end of such
period each of Dart and RSH shall designate an accounting firm of
nationally-recognized standing and shall deliver notice of such designation to
the other party. If either party fails to so designate an accounting firm, the
accounting firm which is timely designated shall determine such calculation.
If each party has timely designated an accounting firm, such accounting firms
shall jointly designate within ten days a third accounting firm of
nationally-recognized standing to determine such calculation. The
determination of the accounting firm designated in accordance with the
preceding procedure shall be final and binding on the parties hereto and shall
be delivered to the parties hereto (the "Final Calculation Notice") and the
Escrow Agent. The amount of Escrow Funds, if any, which are determined to be
payable in accordance with Article 6, Article 8 or Article 9 shall be disbursed
as provided in the Escrow Agreement.
11.3 Cross Default. The Settlement Agreement, this
Agreement and the other Settlement Documents constitute one integrated whole.
RSH agrees that a material breach under any of the Settlement Documents by RSH,
any RSH Obligor or any partnership (general or limited), limited liability
company or corporation controlled by RSH shall constitute a material breach
under each other Settlement Document including this Agreement. The Dart
Parties agree that a material breach under any of the Settlement Documents by
Dart, Xxxxx-Xxxxxx or any partnership (general or limited), limited liability
company or corporation controlled by Dart shall constitute a material breach
under each other Settlement Document including this Agreement.
11.4 Reinstatement; Liens. This Agreement and the
Obligations hereunder shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance by RSH or any other RSH
Obligor of the Obligations, or any part thereof (including the receipt of any
collateral or proceeds thereof), pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee of
the Obligations, whether as a "voidable
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26
preference," "fraudulent conveyance," or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned. RSH and the other RSH Obligors shall not
contest or support any other natural person, partnership, limited liability
company, corporation, joint venture, trust, estate, joint-stock company,
unincorporated organization or government, or any agency or political
subdivision thereof (a "Person"), in contesting, in any actions or proceedings,
the priority or validity of any Lien or other claim in any collateral or other
interest granted under any Settlement Document by RSH or any RSH Obligor to
Dart, Xxxxx-Xxxxxx or any escrow agent, bailee or collateral agent of any of
them.
11.5 Initial Recourse to Collateral.
(a) Notwithstanding any of the provisions of the
Settlement Documents, but subject to the limitations and conditions set forth
in this Section, Dart and Xxxxx-Xxxxxx hereby agree that upon the occurrence of
any Event of Default (other than an Event of Default under paragraphs 8.e. and
f. of the Promissory Notes) Dart and Xxxxx-Xxxxxx will attempt to satisfy the
Obligations from the collateral granted under the Settlement Documents for the
Obligations (the "Collateral") prior to seeking judgment personally against RSH
or any of RSH's assets other than the Collateral; provided, however, that the
personal liability of RSH shall be limited as and to the extent provided in the
$37 Million Note and the $27.4 Million Note. In the event that Dart or
Xxxxx-Xxxxxx are "prevented from enforcing" (as defined below) any rights or
remedies with respect to the Collateral or, after enforcing such rights and
remedies, any Obligations remain unpaid, then Dart and Xxxxx-Xxxxxx shall be
entitled to enforce any claim for the Obligations (including a deficiency
claim) against RSH personally or against any or all of RSH's assets.
(b) For purposes of this Section "prevented from
enforcing" shall mean (i) the filing of any claim or commencement of any
proceeding by RSH or any RSH Obligor asserting a defense to any Obligation or
to the enforcement of any right or remedy granted under the Settlement
Documents with respect to the Obligations, (ii) the filing of any claim or
commencement of any proceeding by any other Person (A) seeking to prevent the
enforcement of any right or remedy granted under the Settlement Documents with
respect to the Obligations or (B) asserting any claim or interest in any of the
Collateral, including the commencement of any bankruptcy, insolvency or other
creditor's proceeding described as an Event of Default under paragraphs 8.e.
and f. of the Promissory Notes, or (iii) the failure of Dart and/or
Xxxxx-Xxxxxx to sell or otherwise dispose of, for cash or such other
consideration as is permitted by the applicable Settlement Document, any of the
Collateral within six months after Dart or Xxxxx-Xxxxxx has commenced a private
or public sale
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27
of the Collateral pursuant to the terms of the Settlement Document pursuant to
which a Lien has been granted (whether as a consequence of the auction or other
sale proceeding failing to result in bids for unsold Collateral or the failure
of a successful bidder in any such proceeding to perform under such bid or
otherwise). This Section shall not impose upon Dart or Xxxxx-Xxxxxx any other
duties with respect to the custody or disposition of any Collateral other than
as and to the extent provided in the Settlement Document pursuant to which a
Lien is granted in such Collateral. In the event RSH shall become a "debtor"
under any proceeding under the U.S. Bankruptcy Code (11 U.S.C. Section 101 et
seq.), as amended from time to time, or any successor statute, the provisions
of this Section shall cease to be in effect and Dart and Xxxxx-Xxxxxx shall be
entitled to assert and prove any claim against RSH to the full extent of the
Obligations without any limitation.
11.6 Notices. Any notices or consents required or
permitted by this Agreement shall be in writing and shall be deemed given if
delivered in person or if sent by certified mail, postage prepaid, return
receipt requested, or by facsimile (answerback required) as follows, unless any
such address is changed by notice hereunder:
If to the Dart Parties:
Dart Group Corporation
0000 00xx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: President
and
Attn: Corporate Secretary
Facsimile: 000-000-0000
with copies to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: 000-000-0000
If to RSH:
Xx. Xxxxxx X. Xxxx
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: 000-000-0000
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28
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Blank, Rome, Xxxxxxx & XxXxxxxx
0000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
11.7 Governing Law. This Agreement, and the documents
and instruments delivered pursuant hereto, except as otherwise provided
therein, shall be construed in accordance with and governed by the laws of the
State of Delaware.
11.8 Survival of Representations and Warranties. The
covenants, agreements, representations and warranties of the parties hereto
made in this Agreement shall survive the closing of the transactions
contemplated hereby.
11.9 Amendments. This Agreement may be amended only by
a written agreement executed by the parties hereto.
11.10 Entire Agreement. This Agreement (including the
Exhibits hereto) and the other Settlement Documents set forth the entire
understanding of the parties hereto and supersede all prior agreements between
them with respect to the subject matter hereof and all prior negotiations
between the parties are merged in this Agreement and the other Settlement
Documents, and there are no promises, agreements, conditions, undertakings,
warranties or representations, oral or written, express or implied, between
them other than as herein set forth.
11.11 Severability. If this Agreement or any other
Settlement Document or any one or more of the provisions contained in this
Agreement or any other Settlement Document, should be held to be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of all remaining provisions shall not in any way be affected or
impaired.
11.12 Binding Effect. This Agreement, and the documents
and instruments delivered pursuant hereto, shall inure to the benefit of, and
shall be binding upon, their respective heirs, executors, administrators,
successors (including any representative, executor or administrator of RSH's
estate) and assigns of the parties.
11.13 Waiver. No waiver of any of the provisions of this
Agreement or any other agreement referred to herein shall be valid unless in
writing and signed by the party against whom it is sought to be enforced. The
waiver by any party hereto of any matter provided for herein shall not be
deemed to be a waiver of any other matter provided for herein.
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29
11.14 Exhibits and Schedules. The Exhibits attached to
this Agreement are incorporated herein and shall be part of this Agreement for
all purposes.
11.15 Headings. The headings in this Agreement, and the
headings in the Exhibits hereto, are solely for convenience of reference and
shall not be given any effect in the construction or interpretation of this
Agreement. Unless otherwise specified, references in this Agreement to
Sections or Exhibits are references to Sections of, or Exhibits to, this
Agreement.
11.16 Appointment as Agent for Xxxxx-Xxxxxx. Xxxxx-Xxxxxx
hereby (i) designates and appoints Dart to act as Xxxxx-Xxxxxx'x agent, bailee
and collateral agent for purposes of perfecting any pledge and assignment of
collateral under the Settlement Documents and (ii) authorizes Dart to exercise
any and all rights, powers and remedies of Xxxxx-Xxxxxx under the Settlement
Documents on behalf of Xxxxx-Xxxxxx. In furtherance of the foregoing
authorization Dart is authorized to designate and appoint any agent, bailee or
collateral agent on behalf of Dart and Xxxxx-Xxxxxx, as Dart in its discretion
determines necessary or appropriate.
11.17 Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
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30
IN WITNESS WHEREOF, RSH, Dart and Xxxxx-Xxxxxx have executed,
or have caused this Agreement to be executed on their behalf, on the date first
above written.
/s/ Xxxxxx X. Xxxx
----------------------------------------
XXXXXX X. XXXX
DART GROUP CORPORATION
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name:
Title:
XXXXX-XXXXXX REAL ESTATE COMPANY
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name:
Title:
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31
EXHIBIT A-1
THE CP/PARTNERSHIPS
1. CP/Greenbriar Office Investments Limited Partnership, a Virginia
limited partnership.
2. CP/Greenbriar Retail Investments Limited Partnership, a Virginia
limited partnership.
3. Combined Properties/Greenway Center Limited Partnership, a
District of Columbia limited partnership.
4. Combined Properties/Xxxxxx Xxxxxx Plaza Limited Partnership, a
District of Columbia limited partnership.
5. CP/Bull Run Limited Partnership, a Maryland limited partnership.
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32
EXHIBIT A-2
CP/PARTNERSHIP INTERESTS CLAIMED BY RSH
1. CP/Greenbriar Office Investments Limited Partnership:
thirty-three percent (33%) personally as a limited partner.
2. CP/Greenbriar Retail Investments Limited Partnership:
thirty-three percent (33%) personally as a limited partner.
3. Combined Properties/Greenway Center Limited Partnership: one
percent (1%) personally as a general partner; and thirty-two and one-third
percent (32-1/3%) personally as a limited partner.
4. Combined Properties/Xxxxxx Xxxxxx Plaza Limited Partnership: one
percent (1%) personally as a general partner; and ninety-seven percent (97%)
personally as a limited partner.
5. CP/Bull Run Limited Partnership: ninety-seven and six-one
hundredths percent (97.06%) personally as a limited partner.
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00
XXXXXXX X-0
XXX ENTITIES AND RSH ENTITIES' INTERESTS
RSH ENTITIES
1. CP/Greenbriar Office, Inc., a Virginia corporation.
2. CP Properties Holdings Limited Partnership, a Delaware limited
partnership.
3. CP/Greenbriar Retail, Inc., a Virginia corporation.
4. CP Holdings MD, Inc., a Virginia corporation.
5. HCP Partner MD, Inc., a Delaware corporation.
6. Bull Run, Inc., a Maryland corporation.
For all purposes of this Agreement JV Management, L.L.C., a Delaware
limited liability company, shall be included in the term "RSH Entity".
RSH ENTITIES INTERESTS
1. CP/Greenbriar Office Investments Limited Partnership:
(a) CP/Greenbriar Office, Inc., a Virginia corporation,
claims ownership of a one percent (1%) general
partner interest.
(b) CP Properties Holdings Limited Partnership, a
Delaware limited partnership, claims ownership of a
sixty-six percent (66%) limited partner interest.
2. CP/Greenbriar Retail Investments Limited Partnership:
(a) CP/Greenbriar Retail, Inc., a Virginia corporation,
claims ownership of a one percent (1%) general
partner interest.
(b) CP Properties Holdings Limited Partnership, a
Delaware limited partnership, claims ownership of a
sixty-six percent (66%) limited partner interest.
3. Combined Properties/Greenway Center Limited Partnership: CP
Properties Holdings Limited Partnership, a Delaware limited partnership, claims
ownership of a sixty-six and two-thirds percent (66-2/3%) limited partner
interest.
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34
4. Combined Properties/Xxxxxx Xxxxxx Plaza Limited Partnership:
(a) CP Holdings MD, Inc., a Virginia corporation, claims
ownership of a one percent (1%) limited partner
interest.
(b) HCP Partner MD, Inc., a Delaware corporation, claims
ownership of a one percent (1%) limited partner
interest.
5. CP/Bull Run Limited Partnership: Bull Run, Inc., a Maryland
corporation, claims ownership of a two and ninety four-one hundredths percent
(2.94%) general partner interest.
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35
EXHIBIT A-4
JOINT VENTURES
1. CM/CP Greenbriar Office Joint Venture, a Delaware general
partnership between Xxxxx-Xxxxxx and CP/Greenbriar Office Investments Limited
Partnership (Greenbriar Corporate Center in Fairfax County, Virginia). CM/CP
Greenbriar Office Joint Venture owns a 99.9999% interest in Combined
Properties/Greenbriar Office Limited Partnership, a District of Columbia
limited partnership which owns the Property set forth on Exhibit B attributable
to CM/CP Greenbriar Office Joint Venture.
2. CM/CP Greenbriar Retail Joint Venture, a Delaware general
partnership between Xxxxx-Xxxxxx and CP/Greenbriar Retail Investments Limited
Partnership (Greenbriar Town Center in Fairfax County, Virginia). CM/CP
Greenbriar Retail Joint Venture owns a 99.999% interest in Combined
Properties/Greenbriar Limited Partnership, a District of Columbia limited
partnership which owns the Property set forth on Exhibit B attributable to
CM/CP Greenbriar Retail Joint Venture.
3. CM/XX Xxxxxxxx Center Joint Venture, a Delaware general
partnership between Xxxxx-Xxxxxx and Combined Properties/Greenway Center
Limited Partnership (Greenway Shopping Center in Prince George's County,
Maryland).
4. CM/XX Xxxxxx Xxxxxx Plaza Joint Venture, a Delaware general
partnership between Xxxxx-Xxxxxx and Combined Properties/Xxxxxx Xxxxxx Plaza
Limited Partnership (Xxxxxx Xxxxxx Plaza in Xxxxxxxxxx County, Maryland).
5. CM/CP Bull Run Joint Venture, a Delaware general partnership
between Xxxxx-Xxxxxx and CP/Bull Run Limited Partnership (Bull Run Plaza in
Prince Xxxxxxx County, Virginia).
CM/CP Greenbriar Office Joint Venture and CM/CP Greenbriar Retail Joint Venture
are sometimes referred to herein as the "Greenbriar Joint Ventures" and
Combined Properties/Greenbriar Office Limited Partnership and Combined
Properties/Greenbriar Limited Partnership are sometimes referred to herein as
the "Greenbriar Limited Partnerships". Combined Properties/Greenbriar Office
Limited Partnership, Combined Properties/Greenbriar Limited Partnership, CM/XX
Xxxxxxxx Center Joint Venture, CM/XX Xxxxxx Xxxxxx Plaza Joint Venture and
CM/CP Bull Run Joint Venture are sometimes referred to herein as the "Property
Owning Entities".
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36
EXHIBIT A-5
OWNERSHIP OF CP/PARTNERSHIPS ALLEGED BY XXXXXXX X. XXXX
CP/PARTNERSHIP INTERESTS
-------------- ---------
1. CP/Greenbriar Office CP/Greenbriar Office, Inc.
Investments Limited 1% general partner interest
Partnership HHH
33% limited partner interest
RSH
66% limited partner interest
2. CP/Greenbriar Retail CP Greenbriar Retail, Inc.
Investments Limited 1% general partner interest
Partnership HHH
33% limited partner interest
RSH
66% limited partner interest
3. Combined Properties/ HHH
Greenway Center 0.50% general partner interest
Limited Partnership RSH
1.50% general partner interest
HHH
32.83% limited partner interest
RSH
65.16% limited partner interest
4. Combined Properties/ HHH
Xxxxxx Xxxxxx Plaza 0.50% general partner interest
Limited Partnership RSH
1.50% general partner interest
HHH
32.83% limited partner interest
RSH
65.16% limited partner interest
5. CP/Bull Run Limited Bull Run, Inc.
Partnership 1% general partner interest
HHH
33% limited partner interest
RSH
66% limited partner interest
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EXHIBIT B
THE PROPERTIES
1. Combined Properties/Greenbriar Office Limited Partnership is
the owner of fee simple title to the property known as Greenbriar Corporate
Center in Fairfax County, Virginia.
2. Combined Properties/Greenbriar Limited Partnership is the
owner of fee simple title to the property known as Greenbriar Town Center in
Fairfax County, Virginia.
3. CM/XX Xxxxxxxx Center Joint Venture is the owner of fee simple
title to the property known as Greenway Shopping Center in Prince George's
County, Maryland.
4. CM/XX Xxxxxx Xxxxxx Plaza Joint Venture is the owner of fee
simple title to the property known as Xxxxxx Xxxxxx Plaza in Xxxxxxxxxx County,
Maryland.
5. CM/CP Bull Run Joint Venture is the owner of fee simple title
to the property known as Bull Run Plaza in Prince Xxxxxxx County, Virginia.
As used in this Agreement, the "Properties" shall include:
All improvements, structures and fixtures now constructed and
completed or under construction with respect to and situated on the land
described on Exhibits B-1 to B-5, inclusive (the "Land"), including (without
limitation) all buildings or other improvements located thereat (herein
collectively referred to as the "Improvements").
All rights of the Property Owning Entities under all leases to
which any of the Property Owning Entities is a party or has an interest and
covering any portion of the Land and all security deposits, contract rights,
licenses, permits, certificates and all other intangible rights which are owned
by the Property Owning Entities and which are appurtenant to the Land and/or
the Improvements, including (without limitation) all names, marks, trade names,
trademarks and telephone numbers and listings which are used exclusively by any
Property Owning Entity in connection with the operation of the Land or
Improvements.
All equipment, machinery, automobiles, furniture, fixtures and
all other tangible personal property now owned by the Property Owning Entities
and situated on the Land or used or to be used in connection therewith or with
the Improvements.
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