PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), made as of
May 28, 1998, by and between CCHI LIMITED PARTNERSHIP, a Delaware limited
partnership having an address of 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
("Purchaser"), and GRAMON FUND (BVI), L.P. a British Virgin Islands limited
partnership having an address of 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (
"Seller").
W I T N E S S E T H :
WHEREAS, Seller is the owner of those portions of certain classes of
commercial mortgage backed securities described in the twelfth column of Table I
hereof (the "Initial Investments");
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
all of Seller's' right, title and interest in the Initial Investments.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Sale. On the Closing Date (as hereafter defined), Seller
agrees to sell, assign, and transfer to Purchaser, and Purchaser agrees to
purchase and accept from Seller, all of Seller's right, title and interest in
the Initial Investments, in accordance with the terms and conditions of this
Agreement.
SECTION 2. Price. The purchase price (the "Purchase Price") for the
Initial Investments shall be fair market value of the Investments determined as
of the Closing Date in accordance with Exhibit A attached hereto. On the Closing
Date, Purchaser shall pay to Seller the Purchase Price by wire transfer of
immediately available funds to an account or the accounts designated in writing
by Seller.
SECTION 3. Closing. (a) The consummation of the sale and purchase
contemplated in this Agreement (the "Closing") shall occur at 1:00 p.m. on the
date of the Closing of the initial public offering (the "IPO") of the Class A
common stock of Clarion Commercial Holdings, Inc. (the "Company"), the general
partner of Purchaser's general partner, at the offices of Shearman & Sterling,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) At the Closing, upon receipt by Seller of the items set forth
in Section 3(c) hereof, Seller shall deliver to Purchaser assignments and other
such instruments appropriate to transfer all of Seller's right, title and
interest in the Initial Investments to Purchasers. At the Closing, Seller shall
represent and warrant to Purchaser that it owns the Initial Investments free and
clear of any lien or other encumbrance and has the legal right to transfer the
Initial Investments to Purchaser without the consent of any other party.
(c) At the Closing, upon receipt by Purchaser of the items set forth
in Section 3(b) hereof, Purchaser shall deliver to Seller the Purchase Price in
the manner set forth in Section 2 hereof.
(d) All documents and funds to be delivered at the Closing shall be
deemed to have been delivered simultaneously and no delivery shall be effective
until all such documents, instruments and funds have been delivered.
SECTION 5. Conditions Precedent to Purchaser's Obligations.
Notwithstanding anything to the contrary contained herein, the purchase and sale
contemplated hereby shall be expressly conditioned upon:
(a) the closing of the IPO prior to July 1, 1998; and
(b) as to each Initial Investment, the Board of Directors of the
Company has approved the purchase of such Initial Investment
in accordance with the terms hereof.
In the event the Board of Directors of the Company fails to approve
the purchase by Purchaser of any Initial Investment, this Agreement shall remain
valid and binding with respect to each other Initial Investment.
SECTION 5. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if (a)
personally delivered with proof of delivery thereof (any notice or
communications so delivered being deemed to have been received at the time
delivered on a Business Day (as hereinafter defined)), (b) sent by United States
registered or certified mail, postage prepaid (any notice or communication so
sent being deemed to have been received two (2) Business Days after mailing in
the United States) or (c) sent by nationally recognized overnight courier (any
notice or communication so sent being deemed to have been received on the first
(1st) Business Day subsequent to the date sent), addressed to the respective
parties as follows:
if to Purchaser:
CCHI Limited Partnership
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
if to Seller:
Gramon Fund (BVI), L.P.
c/o Clarion Capital, LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
or to such other address or party as either party may have furnished to the
other in writing in accordance herewith, except that notices of change of
address or addresses shall only be effective upon receipt. A "Business Day"
means a day of the year on which banks are not required or authorized to close
in New York, New York.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such state.
SECTION 7. Amendments, Etc. No amendment or waiver of any
provision of this Agreement shall in any event be effective unless the same
shall be in writing and designated by the parties.
SECTION 8. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9. No Assignment. Neither party hereto may assign its
respective rights and obligations hereunder, in whole or in part, without the
prior written consent of the other party hereto.
SECTION 10. Entire Contract. This Agreement together with the
Exhibits hereto, constitutes the entire agreement of the parties regarding the
subject matter of this Agreement and all prior or contemporaneous agreements,
understandings, representations and statements, oral or written are hereby
merged herein.
* * *
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first above written.
PURCHASER:
CCHI LIMITED PARTNERSHIP
By: CCHI General, Inc., general partner
By:_______________________________________________
Xxxxxx Xxxxxx
President
SELLER:
GRAMON FUND (BVI), L.P.
By: _________________________, a general partner
By:_______________________________________________
Xxxxxx Xxxxxx
President
EXHIBIT A
PROCEDURES FOR DETERMINING THE PURCHASE PRICE
The Purchase Price shall be based on a bid from an independent
investment bank for each Initial Investment plus one-half of the bid/offer
spread for similar securities.
