EXHIBIT 10.46
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), is executed and
delivered as of the ____ day of May, 2002, by and between RAMCO-XXXXXXXXXX
PROPERTIES, L.P., a Delaware limited partnership ("Ramco"), having an office at
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx, and SHOP INVEST,
LLC, a Delaware limited liability company ("Investcorp"), having an office at
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx.
RECITALS
A. Ramco and Investcorp heretofore entered into that certain Limited
Liability Company Agreement of RPT/Invest L.L.C., dated as of August 23, 1999 (a
copy of which is attached hereto and made a part hereof as Exhibit A, the
"Operating Agreement"), regarding the parties' respective rights, interests and
obligations with respect to RPT/Invest L.L.C., a Delaware limited liability
company ("RPT/Invest"). Ramco and Investcorp (each, a "Member") collectively own
one hundred percent (100%) of the "Membership Interests" (as hereinafter
defined) in RPT/Invest.
B. Pursuant to the terms of Section 4.09 of the Operating Agreement,
Ramco desires to purchase from Investcorp all of Investcorp's Membership
Interests in and to RPT/Invest, and thereby become the sole member of
RPT/Invest, and Investcorp desires to convey to Ramco all of Investcorp's
Membership Interests in and to RPT/Invest, subject to and in accordance with the
terms and conditions hereinafter set forth.
C. An affiliate of Ramco, Ramco-Xxxxxxxxxx, Inc., a Michigan
corporation ("RGI") and Investcorp are the sole shareholders of each of (i)
Xxxxxxx Springs SC Holdings Corp., a Delaware corporation, and (ii) Rivertowne
Holdings Corp., a Delaware corporation. Pursuant to the terms of Section 4.09 of
the Operating Agreement, Ramco desires that RGI purchase from Investcorp all of
Investcorp's shares in each of Xxxxxxx Springs SC Holdings Corp. and Rivertowne
Holdings Corp., and Investcorp desires to convey to RGI, at Ramco's request, all
of Investcorp's shares in each of Xxxxxxx Springs SC Holdings Corp. and
Rivertowne Holdings Corp., subject to and in accordance with the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter contained and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Ramco and Investcorp hereby
agree as follows:
AGREEMENT
1. Definitions.
(a) The following capitalized terms shall have the following
meanings herein:
Xxxxxxx Springs SC Holdings Corp. "Xxxxxxx Springs SC
Holdings Corp." shall mean that certain Delaware corporation, incorporated as of
August 17, 1999, pursuant to that certain Certificate of Incorporation of
Xxxxxxx Springs SC Holdings Corp. As of the date hereof, RGI owns 250 shares of
stock, no par value, of Xxxxxxx Springs SC Holdings Corp. and Investcorp owns
750 shares of stock, no par value, of Xxxxxxx Springs SC Holdings Corp.
Xxxxxxx Springs SC, LLC. "Xxxxxxx Springs SC, LLC"
shall mean that certain Delaware limited liability company, formed as of June
24, 1999 and operating pursuant to the terms of that certain Operating Agreement
of Xxxxxxx Springs SC, LLC, dated as of June 24, 1999. As of the date hereof,
the sole
members of Xxxxxxx Springs SC, LLC are (i) RPT/Invest, as the 100% equity
non-managing member, and (ii) Xxxxxxx Springs SC Holding Corp., a Delaware
corporation, as the 0% equity managing member.
Xxxxxxx Springs Shopping Center. "Xxxxxxx Springs
Shopping Center" shall mean that certain shopping center owned by Xxxxxxx
Springs SC, LLC and located in Xxxxxx County, New Jersey, as more particularly
described in Exhibit "A" to the Operating Agreement of Xxxxxxx Springs SC, LLC.
Closing. "Closing" shall mean the consummation of the
transactions contemplated by this Agreement, which Closing shall occur
simultaneously with the execution and delivery of this Agreement. The Closing
shall occur by mail at the offices of Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Closing Date. "Closing Date" shall mean the date upon
which the Closing shall occur.
Existing Lender. "Existing Lender" shall mean Bankers
Trust Company, or its successor(s) and/or assign(s) as holder(s) of the Existing
Loan Documents.
Existing Loan Documents. "Existing Loan Documents"
shall mean, collectively, (i) that certain Promissory Note dated August 25,
1999, executed by Xxxxxxx Springs SC, LLC in the original principal amount of
Sixteen Million Dollars ($16,000,000), and all other instruments, documents and
agreements evidencing and/or securing the subject loan, and (ii) that certain
Promissory Note dated August 25, 1999, executed by RSSC, LLC in the original
principal amount of Six Million Dollars ($6,000,000), and all other instruments,
documents and agreements evidencing and/or securing the subject loan.
Existing Loan Liabilities. "Existing Loan
Liabilities" shall mean the outstanding balance of the loans from the Existing
Lender to Xxxxxxx Springs SC, LLC (the "Xxxxxxx Springs Loan Liabilities") and
RSSC, LLC (the "RSSC Loan Liabilities"),including, without limitation, all
principal, interest and other amounts due under the Existing Loan Documents, as
of the Closing Date.
Liabilities. "Liabilities" shall mean any and all
claims, losses, liabilities, damages, obligations, fines, penalties, suits,
actions, proceedings, costs or expenses of any nature whatsoever (including,
without limitation, attorneys' fees and expenses and court costs), whether now
known or unknown, asserted or unasserted, accrued or unaccrued, liquidated or
unliquidated or due or to become due, including, without limitation, any
liabilities in respect of any applicable laws.
Membership Interests. "Membership Interests" shall
mean, with respect to any Member, all right, title and interest of such Member
in and to RPT/Invest at such time, including, without limitation, all right,
title and interest in and to the Operating Agreement, any and all rights to
receive any participation or distribution, any and all voting rights, and any
and all other benefits to which such Member may be entitled pursuant to the
Operating Agreement, together with the obligations of such Member to comply with
the terms and provisions of the Operating Agreement.
Purchase Price. "Purchase Price" shall mean a
confirmed wire transfer of immediately available funds in the amount of EIGHT
MILLION SEVEN HUNDRED THIRTEEN THOUSAND SEVEN HUNDRED AND SEVENTY-NINE AND
00/100 Dollars ($8,713,779.00), which amount Ramco and Investcorp acknowledge
and agree is in full satisfaction of the parties' obligations under Section
4.09(c) of the Operating Agreement.
Rivertowne Holdings Corp. "Rivertowne Holdings Corp."
shall mean that certain Delaware corporation incorporated as of August 17, 1999,
pursuant to that certain Certificate of Incorporation of Rivertowne Holdings
Corp. As of the date hereof, RGI owns 250 shares of stock, no par value, of
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Rivertowne Holdings Corp. and Investcorp owns 750 shares of stock, no par value,
of Rivertowne Holdings Corp.
Rivertowne Square Shopping Center. "Rivertowne Square
Shopping Center" shall mean that certain shopping center owned by RSSC, LLC and
located in Broward County, Florida, as more particularly described in Exhibit
"A" to the Operating Agreement of RSSC, LLC.
RSSC, LLC. "RSSC, LLC" shall mean that certain
Delaware limited liability company, formed as of August 6, 1999 and operating
pursuant to that certain Amended and Restated Operating Agreement of RSSC, LLC,
dated as of August 25, 1999. As of the date hereof, the sole members of RSSC,
LLC are (i) RPT/Invest, as the 100% equity non-managing member, and (ii)
Rivertowne Holdings Corp., a Delaware corporation, as the 0% equity managing
member.
Shares. "Shares" shall mean those certain shares of
stock, no par value, owned by Ramco or Investcorp in Xxxxxxx Springs SC Holdings
Corp. and Rivertowne Holdings Corp., as the case may be.
(b) Capitalized terms used but not defined herein and defined
in the Operating Agreement shall have the meanings ascribed to such terms in the
Operating Agreement.
2. Assignment of Membership Interest; Transfer of Stock.
(a) At the Closing, Investcorp shall (i) transfer and assign
to Ramco all of Investcorp's Membership Interests in and to RPT/Invest, and
Ramco shall accept such conveyance from Investcorp pursuant to the Assignment
and Assumption Agreement in the form attached hereto and made a part hereof as
Exhibit B (the "Assignment"), and (ii) at Ramco's direction, transfer and assign
to RGI all of the Shares owned by Investcorp in and to Xxxxxxx Springs SC
Holdings Corp. and Rivertowne Holdings Corp., and RGI shall accept such
conveyance from Investcorp as evidenced by the Stock Power in the form attached
hereto and made a part hereof as Exhibit C (the "Stock Power").
(b) The Investment Committee (as defined in the Operating
Agreement) has consented to the terms, covenants and conditions of this
Agreement, including, without limitation, the Assignment and the Stock Power, as
evidenced by the Investment Committee's execution and delivery of this
Agreement.
3. [RESERVED].
4. Conditions Precedent.
(a) The obligation of Investcorp to consummate the
transactions contemplated hereby is subject to the timely performance and
complete satisfaction of each and all of the following conditions on or before
the Closing Date:
(i) Ramco shall have delivered or caused to be
delivered the Purchase Price and all other funds, documents and other items
required to be delivered to Investcorp hereunder, including, without limitation,
the funds, documents and other items set forth in Section 5 hereof;
(ii) The representations and warranties of Ramco set
forth herein shall be true, complete and accurate in all respects;
(iii) Investcorp shall have obtained all necessary
consents or approvals of all necessary parties to the consummation of the
transactions contemplated hereby; and
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(iv) Ramco shall have obtained all necessary consents
or approvals of all necessary parties, including, without limitation, the
Existing Lender, if necessary, to the consummation of the transactions
contemplated hereby.
(b) The obligation of Ramco to consummate the transactions
contemplated hereby is subject to the timely performance and complete
satisfaction of each and all of the following conditions on or before the
Closing Date:
(i) Investcorp shall have delivered or caused to be
delivered all documents and other items required to be delivered to Ramco
hereunder, including, without limitation, the documents and other items set
forth in Section 5 hereof; and
(ii) The representations and warranties of Investcorp
set forth herein shall be true, complete and accurate in all respects.
5. Deliveries.
(a) Deliveries by Ramco. On or prior to the Closing Date,
Ramco shall deliver or cause to be delivered to Investcorp the following funds,
documents and items, all in the form required by this Agreement or otherwise in
form, scope and substance satisfactory to Investcorp in its sole and absolute
discretion:
(i) Purchase Price. The Purchase Price in immediately
available funds pursuant to the wire instructions attached hereto as Exhibit D.
(ii) Assignment. The Assignment, duly executed by
Ramco.
(iii) Resolutions, Etc. All appropriate resolutions,
consents or approvals, including from any third parties, if necessary,
authorizing Ramco to consummate the transactions contemplated in this Agreement.
(iv) Release. The Release, duly executed by
RPT/Invest, Ramco, RGI, Xxxxxxx Springs SC, LLC, RSSC, LLC, Xxxxxxx Springs SC
Holdings Corp. and Rivertowne Holdings Corp. in the form attached hereto and
made a part hereof as Exhibit E.
(v) Existing Lender Releases. A release or releases
duly executed by the Existing Lender, in the form attached hereto as Exhibit F,
from any and all guaranties, obligations or other Existing Loan Liabilities in
connection the Existing Loan Documents, including, without limitation (i) that
certain Unconditional Guaranty (Carve-Outs), dated as of August 25, 1999, made
by Investcorp Properties Limited in favor of the Existing Lender in connection
with the Xxxxxxx Springs Loan Liabilities, and (ii) that certain Unconditional
Guaranty (Carve-Outs), dated as of August 25, 1999, made by Investcorp
Properties Limited in favor of the Existing Lender in connection with the RSSC
Loan Liabilities.
(vi) Other Documents. Such other documents or
instruments reasonably required by Investcorp or its counsel to consummate or
further effectuate the transactions contemplated in this Agreement.
(b) Deliveries by Investcorp. On or prior to the Closing Date,
Investcorp shall deliver or cause to be delivered to Ramco the following
documents and items, all in the form required by this Agreement or otherwise in
form, scope and substance satisfactory to Ramco in its sole and absolute
discretion:
(i) Assignment. The Assignment, duly executed by
Investcorp.
(ii) Stock Power. The Stock power, duly executed by
Investcorp.
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(iii) Resolutions, Etc. All appropriate resolutions,
consents or approvals authorizing Investcorp to consummate the transactions
contemplated in this Agreement.
(iv) FIRPTA. A certificate meeting the requirements
of Section 1445 of the Internal Revenue Code of 1986, stating that Investcorp in
not a "foreign seller".
(v) Resignations. A letter of resignation from Xxxxxx
X. Xxxx, Xxxx X. Xxxxxx and F. Xxxxxxxx Xxxxxx, from the Investment Committee
and as officers and directors of RPT/Invest, Xxxxxxx Springs SC, LLC, RSSC, LLC,
Xxxxxxx Springs SC Holdings Corp. and Rivertowne Holdings Corp., as the case may
be.
(vi) Other Documents. Such other documents or
instruments reasonably required by Ramco or its counsel to consummate or further
effectuate the transactions contemplated in this Agreement.
6. Representations, Warranties and Covenants.
(a) Ramco's Representations, Warranties and Covenants. Ramco
hereby makes the following representations and warranties to Investcorp, and
hereby covenants with and for the benefit of Investcorp as follows:
(i) Ramco is a duly organized and validly existing
Delaware limited partnership. Ramco has all requisite power and authority to
conduct its business and enter into and consummate the transactions contemplated
by this Agreement and the Assignment.
(ii) Ramco does not require the consent, waiver,
approval or authorization of any third party to execute, deliver, or perform its
obligations under this Agreement or any document, instrument or agreement
contemplated hereby, except any of the foregoing that shall have already been
satisfied as of the Closing Date.
(iii) This Agreement, the Assignment and every other
document delivered by Ramco pursuant to this Agreement will, upon execution and
delivery, have been duly authorized, executed and delivered by Ramco and
constitute legal, valid and binding obligations, enforceable against Ramco in
accordance with their respective terms.
(iv) No representations of any kind (whether oral or
written, express or implied) have been made by Investcorp to Ramco with respect
to the transactions contemplated hereby, except as specifically provided in
Section 6(b) hereof, and Ramco is entering into this Agreement and acquiring
Investcorp's Membership Interests and the Shares solely in reliance on Ramco's
own investigations and evaluation thereof.
(b) Investcorp's Representations, Warranties and Covenants.
Investcorp hereby makes the following representations and warranties to Ramco,
and hereby covenants with and for the benefit of Ramco as follows:
(i) Investcorp is a duly organized and validly
existing Delaware limited liability company. Investcorp has all requisite power
and authority to conduct its business and enter into and consummate the
transactions contemplated by this Agreement and the Assignment.
(ii) Investcorp does not require the consent, waiver,
approval or authorization of any third party to execute, deliver, or perform its
obligations under this Agreement or any document, instrument or agreement
contemplated hereby, except any of the foregoing that shall have already been
satisfied as of the Closing Date, provided, however, that no representation or
warranty is made by Investcorp as to whether the consent of the Existing Lender
is required for the execution of this Agreement or the consummation of the
transactions contemplated hereby.
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(iii) This Agreement, the Assignment and every and
other document delivered by Investcorp pursuant to this Agreement will, upon
execution and delivery, have been duly authorized, executed and delivered by
Investcorp and constitute legal, valid and binding obligations, enforceable
against Investcorp in accordance with their respective terms.
(iv) Investcorp owns a seventy-five percent (75.0%)
Membership Interests in and to RPT/Invest, and Investcorp has not heretofore
assigned or transferred such Membership Interests, and there are no charges,
liens or other encumbrances upon such Membership Interests, except as may be set
forth in the Existing Loan Documents.
(v) Investcorp owns 750 shares in Xxxxxxx Springs SC
Holdings Corp. and 750 shares in Rivertowne Holdings Corp., and Investcorp has
not heretofore assigned or transferred such Shares, and there are no charges,
liens or other encumbrances upon such Shares, except as may be set forth in the
Existing Loan Documents.
(c) Ramco and RGI are fully familiar with the business,
operation and management of the assets of RPT/Invest, Xxxxxxx Springs SC, LLC,
Xxxxxxx Springs SC Holdings Corp., RSSC, LLC, and Rivertowne Holdings Corp., and
the state of title to the Xxxxxxx Springs Shopping Center and Rivertowne Square
Shopping Center, the present physical and financial condition of the Xxxxxxx
Springs Shopping Center and Rivertowne Square Shopping Center and the present
state of repair of the Xxxxxxx Springs Shopping Center and Rivertowne Square
Shopping Center. Except for the representations and warranties set forth in
Section 6(b)(iv) and (v) hereof, at the Closing, Ramco and RGI shall accept the
Investcorp's Membership Interests in RPT/Invest and Investcorp's Shares "AS IS",
"WHERE IS" AND "WITH ALL FAULTS" (whether latent, patent or detectable or not)
on the Closing Date. Ramco acknowledges and agrees that neither Investcorp nor
any of its direct or indirect principals, members, joint venturers, partners or
affiliates, nor any of its employees, agents, brokers and representatives
(collectively, "Investcorp's Representatives") nor any other person, has made
any representation, warranty, promise or covenant, express or implied, with
respect to (i) [INTENTIONALLY BLANK]; and/or (ii) the assets of the RPT/Invest,
Xxxxxxx Springs SC, LLC, Xxxxxxx Springs SC Holdings Corp., RSSC, LLC, and
Rivertowne Holdings Corp., the fitness, merchantability, suitability or adequacy
of the Xxxxxxx Springs Shopping Center and Rivertowne Square Shopping Center for
any particular purpose, any environmental condition at or with respect to the
Xxxxxxx Springs Shopping Center and Rivertowne Square Shopping Center, the
compliance or non-compliance of the Xxxxxxx Springs Shopping Center and
Rivertowne Square Shopping Center or any tenant-occupied space under the
provisions of the ADA, the site or physical conditions applicable to or with
respect to the Xxxxxxx Springs Shopping Center and Rivertowne Square Shopping
Center, the zoning regulations or other governmental requirements applicable to
or with respect to the Xxxxxxx Springs Shopping Center and Rivertowne Square
Shopping Center, or any other matters whatsoever affecting the title, use,
enjoyment, occupancy, operation, management, leasing, ownership or condition to,
of or with respect to such, or any part thereof.
(d) Survival. The representations and warranties of Investcorp
set forth in this Section 6(b)(iv) and (v) hereof shall survive the Closing for
a period of one (1) year.
7. Closing Costs.
(a) Ramco shall pay any and all closing costs relating to the
transactions contemplated by this Agreement, including, without limitation, (i)
any and all transfer taxes, sales taxes, duties or fees that have been or may be
assessed or levied by any Federal, State or local authority with respect to the
transfer of Investcorp's Membership Interests and Shares to Ramco (but excluding
any capital gains, income or other similar taxes of Investcorp), and (ii) any
prepayments fees, penalties or other costs imposed or charged by the Existing
Lender in connection with the Assignment or otherwise as a result of the
transfer by Investcorp to Ramco of Investcorp's Membership Interests and Shares
as contemplated by this Agreement.
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(b) Each party shall bear the expense of its own counsel.
(c) The obligations contained in this Section 7 shall survive
the Closing without limitation.
8. Accuracy of Documents. Ramco and Investcorp hereby acknowledge that
this Agreement and the Assignment accurately reflect the agreements and
understandings of the parties hereto with respect to the subject matter hereof,
and Ramco and Investcorp hereby waive any claims against one another that they
may now have or may hereafter acquire to the effect that the actual agreements
and understandings of the parties hereto with respect to the subject matter
hereof may not be accurately set forth in this Agreement.
9. No Third Parties Benefited. This Agreement is made and entered into
by Ramco and Investcorp for the benefit of such parties, and no other person or
entity shall have any rights or interest hereunder.
10. Notices and Demands.
(a) All notices, demands, requests, consents and waivers under
this Agreement shall be in writing, shall refer to this Agreement and shall be
(i) delivered personally, (ii) sent by registered or certified mail, postage
prepaid, return receipt requested, (iii) sent by a nationally recognized
overnight courier, or (iv) sent by facsimile, with written confirmation of the
receipt of such telecopy, addressed as set forth below. If delivered personally,
any notice shall be deemed to have been given on the first (1st) business day on
or after the date delivered or refused. If mailed, any notice shall be deemed to
have been given on the earlier to occur of the first (1st) business day on or
after the date of delivery or the third (3rd) business day after such notice has
been deposited in the U.S. mail in accordance with this Section 10. If sent by
overnight courier, any notice shall be deemed to have been given on the first
(1st) business day on or after the date following the date such notice was
delivered to or picked up by the courier. If sent by facsimile, any notice shall
be deemed to have been given upon receipt. Copies of all notices shall be given
in accordance with the above as follows:
If to Ramco: c/o Ramco-Xxxxxxxxxx Properties Trust
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
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with a copy to: Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxx LLP
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Investcorp: c/o Investcorp International, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) Any counsel designated above or any replacement counsel
which may be designated respectively by Ramco or Investcorp or such counsel by
written notice to the other party is hereby authorized to give notices hereunder
on behalf of its respective client.
11. Indemnity.
(a) Ramco, on behalf of itself and Xxxxxxx Springs SC, LLC,
RSSC, LLC, Xxxxxxx Springs SC Holdings Corp. and Rivertowne Holdings Corp.,
hereby agree to indemnify, protect, defend and hold harmless Investcorp and
Investcorp's past and present affiliates, and the respective past and present
direct and indirect officers, directors, members, partners, shareholders,
agents, and employees of each and all of the foregoing entities, and its and
their respective successors, heirs, and assigns, and any other person or entity
now, previously, or hereafter affiliated with any or all of the foregoing
entities (collectively the "Investcorp Indemnitees") from and against any and
all Liabilities of any kind or nature incurred by, imposed upon or asserted
against the Investcorp Indemnitees or any one or more of them, arising out of or
relating in any manner to (i) any failure by Ramco to pay any and all of the
costs set forth in Section 7(b) above, (ii) any and all activities of
RPT/Invest, Xxxxxxx Springs SC, LLC, RSSC, LLC, Xxxxxxx Springs SC Holdings
Corp. and Rivertowne Holdings Corp. after the Closing Date, (iii) any and all
activities of Ramco in connection with or related to RPT/Invest (other than
those activities of Ramco which have been specifically authorized, in writing,
by the Investment Committee pursuant to the terms of Section 5.02 of the
Operating Agreement); and/or (iv) related to the Xxxxxxx Springs Shopping Center
and Rivertowne Square Shopping Center.
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(b) Notwithstanding anything to the contrary contained herein
or in the Assignment and notwithstanding any amendment, modification or
restatement of the Operating Agreement, the terms and provisions of Sections
9.01 and 9.02 of the Operating Agreement shall be deemed remade and incorporated
herein, provided, however, that notwithstanding the above, neither Investcorp
nor any of the Investcorp Indemnitees shall have any liabilities, obligations or
be liable for any costs, damages or other expenses in connection with this
Section 11(b) or Sections 9.01 and 9.02 of the Operating Agreement.
(c) The terms of this Section 11 shall survive the Closing
without limitation.
12. Tax Allocations. The parties acknowledge and agree that (i) tax
allocations by RPT/Invest to Investcorp will be determined as though the tax
year of RPT/Invest ended on the Closing Date, and (ii) RPT/Invest shall provide
Investcorp with all required tax information as soon as practicable, and in no
event later than the time that such information is required to be provided to
Investcorp (determined without regard to any extensions other than extensions to
which Investcorp has consented).
13. Entire Agreement; Counterparts. This Agreement and the exhibits
hereto and documents referred to herein contain the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersede any and
all prior agreements, verbal discussions and representations and warranties of
either party hereto. Separate counterparts of this Agreement may be executed by
the parties hereto, each of which shall constitute an original and all of which
shall constitute a single agreement, as though the same counterpart had been
executed simultaneously by all parties hereto.
14. Assignment and Successors. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective representatives,
successors and assigns, provided, however, that Ramco may not assign or
otherwise transfer its rights or delegate its duties under this Agreement with
the express prior written consent of Investcorp in each instance.
15. Attorneys' Fees. If any party hereto brings any action or suit
against another party hereto by reason of any breach of any of the agreements or
provisions of this Agreement, then, in such event, the prevailing party, as
determined in such action or suit, shall be entitled to have and recover from
the other party or parties all costs and expenses of such action or suit,
including, without limitation, reasonable attorneys' fees and expenses resulting
therefrom; it being understood and agreed that the determination of the
prevailing party shall be included in the matters which are the subject of such
action or suit.
16. Written Modification. This Agreement or any provision hereof may be
changed, waived or terminated only by a statement in writing signed by the party
against which enforcement of the change, waiver or termination is sought to be
enforced. No waiver by any party of any breach hereunder shall be deemed a
waiver of any other or subsequent breach.
17. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Delaware.
18. Interpretation; Severability. Each of the parties hereto has agreed
to the use of the particular language of the provisions of this Agreement, and
any question of doubtful interpretation shall not be resolved by any rule
providing for interpretation against the party who causes the uncertainty to
exist or against the drafter of this Agreement. The various headings of this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof.
19. Further Assurances. Upon the written request of any party hereto,
from time to time, from and after the date hereof, the other parties shall do,
execute, acknowledge and deliver, at the sole cost and expense of the requesting
party, such further acts, deeds, conveyances, assignments, notices of assignment
or transfer and assurances as the requesting party may reasonably require in
order to better assure, convey, grant, assign,
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transfer and confirm upon the requesting party the rights now or hereafter
intended to be granted under this Agreement or any other instrument executed in
connection with this Agreement; provided, however, that no party shall be
obligated to provide any further assurance that would materially increase the
liabilities or obligations of such party hereunder or materially reduce the
rights and benefits of such party hereunder.
20. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (i) ARISING HEREUNDER OR UNDER ANY DOCUMENT, INSTRUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT EITHER PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
21. Brokers and Finders. Neither Ramco nor Investcorp have employed any
broker or finder or incurred any liability for any brokerage or finders' fees in
connection with the transactions contemplated hereby. Ramco and Investcorp shall
each indemnify, defend and hold harmless the other from and against any
Liabilities arising out of the breach of the representations or warranties
contained in this Section 21. The representations, warranties and indemnities
contained in this Section 21 shall survive the Closing without limitation.
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IN WITNESS WHEREOF, Investcorp and Ramco have executed this
Agreement as of the date and year first above written.
"INVESTCORP"
SHOP INVEST LLC,
a Delaware limited liability company
By: __________________________
By:
Title:
"RAMCO"
RAMCO-XXXXXXXXXX PROPERTIES, L.P., a Delaware
limited partnership
By: Ramco-Xxxxxxxxxx Properties Trust, a
Maryland real estate investment trust
By: _______________________
By:
Title:
AGREED AND ACCEPTED:
RAMCO-XXXXXXXXXX, INC.,
a Michigan corporation
By: ______________________________________
Name:
Title:
-11-
CONSENT
By its execution below, each of the undersigned members of the
Investment Committee hereby consent to the terms, covenants and conditions of
this Agreement.
Dated: May ___, 2002 ______________________________
Xxxxxx X. Xxxx III
Dated: May ___, 2002 ______________________________
F. Xxxxxxxx Xxxxxx
Dated: May ___, 2002 ______________________________
Xxxx X. Xxxxxx
Dated: May ___, 2002 ______________________________
Xxxxxx Xxxxxxxxxx
Dated: May ___, 2002 ______________________________
Xxxxxxx Xxxxx
-12-
EXHIBIT A
OPERATING AGREEMENT OF RPT/INVEST L.L.C.
[See Attached]
EXHIBIT B
FORM ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment and
Assumption Agreement"), is effective as of the _____ day of May, 2002, and is
made by and between SHOP INVEST LLC, a Delaware limited liability company
("Assignor"), and RAMCO-XXXXXXXXXX PROPERTIES, L.P., a Delaware limited
partnership ("Assignee").
WHEREAS, Assignor and Assignee entered into that certain Purchase and
Sale Agreement, dated as of May ____, 2002 (the "Purchase Agreement"), pursuant
to which Assignor agreed to assign, set over and transfer to Assignee all of
Assignor's right, title and interest in and to RPT/Invest L.L.C., a Delaware
limited liability company (the "Company"), as more described in the Purchase
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by all parties hereto, the parties hereby
agree as follows:
1. Assignor does hereby convey, transfer, assign and deliver to
Assignee and Assignee's successors and assigns, all of Assignor's right, title
and interest in and to its membership interest in the Company, and Assignee does
hereby accept all of the right, title and interest of Assignor in and to its
membership interest in the Company.
2. Assignee does hereby assume, accept and agree to observe, perform,
discharge when due, and be bound by, each and all of the rights, liabilities and
obligations of Assignor in and to its membership interest in the Company.
3. Assignor and Assignee shall each execute, acknowledge and deliver,
or cause the execution, acknowledgment and delivery of, such further documents
and instruments as may reasonably be requested by the other party hereto to
implement the purposes of this Assignment and Assumption Agreement.
4. This Assignment and Assumption Agreement and the respective rights,
duties and obligations of the parties hereunder, shall be governed and construed
in accordance with the internal law of the State of Delaware.
5. This Assignment and Assumption Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same instrument.
6. The provisions of this Assignment and Assumption Agreement shall be
binding upon, and shall inure to the benefit of, the successors and assigns of
Assignor and Assignee, respectively.
7. This Assignment and Assumption Agreement is made and entered into by
Assignor and Assignee for the benefit and protection of such parties, and no
other person or entity shall have any rights or interest hereunder.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, this Assignment and Assumption Agreement has been
executed as of the date and year first above written.
ASSIGNOR:
SHOP INVEST LLC,
a Delaware limited liability company
By: __________________________
By:
Title:
ASSIGNEE:
RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Xxxxxxxxxx Properties Trust,
a Maryland real estate
investment trust
By: ________________________
By:
Title:
-15-
EXHIBIT C
FORM OF STOCK POWER
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto RAMCO-XXXXXXXXXX, INC., a Michigan corporation, Seven Hundred Fifty (750)
shares of common stock, no par value, of Xxxxxxx Springs SC Holdings Corp., a
Delaware corporation ("Xxxxxxx Springs"), represented by Certificate No. 1
standing in the name of the undersigned on the books of Xxxxxxx Springs.
The undersigned does hereby irrevocably constitute and appoint
Xxxxxxx Springs or its designated agent as attorney to transfer the said stock
on the books of Xxxxxxx Springs with full power of substitution in the premises:
Dated: May ___, 2002
SHOP INVEST LLC, a Delaware limited
liability company
By: ____________________________
Name:
Title:
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto RAMCO-XXXXXXXXXX, INC., a Michigan corporation, Seven Hundred Fifty (750)
shares of common stock, no par value, of Rivertowne Holdings Corp., a Delaware
corporation ("Rivertowne"), represented by Certificate No. 1 standing in the
name of the undersigned on the books of Rivertowne.
The undersigned does hereby irrevocably constitute and appoint
Rivertowne or its designated agent as attorney to transfer the said stock on the
books of Rivertowne with full power of substitution in the premises:
Dated: May ___, 2002
SHOP INVEST LLC, a Delaware limited
liability company
By: ______________________________
Name:
Title:
-17-
EXHIBIT D
INVESTCORP WIRE INSTRUCTIONS
[See Attached]
EXHIBIT E
FORM OF RELEASE
To all to whom these Presents shall come or may concern, know that, (i)
RPT/INVEST L.L.C., a Delaware limited liability company, (ii) RAMCO-XXXXXXXXXX
PROPERTIES, L.P., a Delaware limited partnership, (iii) XXXXXXX SPRINGS SC
HOLDINGS CORP., a Delaware corporation, (iv) XXXXXXX SPRINGS SC, LLC, a Delaware
limited liability company, (v) RIVERTOWNE HOLDINGS CORP., a Delaware
corporation, (vi) RSSC, LLC, a Delaware limited liability company, and (vii)
RAMCO-XXXXXXXXXX, INC., a Michigan corporation (collectively, the "Releasors"),
for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, hereby
Fully, forever and irrevocably release, discharge and acquit Shop
Invest, LLC ("Releasee") and Releasee's past and present affiliates, and the
respective past and present direct and indirect officers, directors, members,
partners, shareholders, agents, and employees of each and all of the foregoing
entities, and its and their respective successors, heirs, and assigns, and any
other person or entity now, previously, or hereafter affiliated with any or all
of the foregoing entities, from any and all actions, causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims and demands
whatsoever, in law, admiralty or equity, which against the Releasee, Releasors
or Releasors' successors and assigns ever had, now have or hereafter can, shall
or may have, for, upon, or by reason of any matter, cause or thing whatsoever
from the beginning of the world to the date of the date of this Release,
including, without limitation, any and all liabilities, actions, damages or
controversies arising from or out of, connected with, or which relate to (A)
RPT/Invest L.L.C. or the membership, administration or management thereof, or
any ancillary documents related thereto, (B) Xxxxxxx Springs SC, LLC or the
ownership, administration or management thereof, or any ancillary documents
related thereto, (C) RSSC, LLC or the ownership, administration or management
thereof, or any ancillary documents related thereto, and (D) the Xxxxxxx Springs
Shopping Center and the Rivertowne Shopping Center, or the ownership,
administration or management thereof.
This Release may not be changed orally. This Release shall be governed
and construed in accordance with the internal law of the State of Delaware.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Releasors have caused this Release to be executed
on this ____ of May, 2002.
RPT/INVEST, LLC, a Delaware limited liability company
By: Ramco-Xxxxxxxxxx Properties, L.P.,
a Delaware limited liability company, Member
By: Ramco-Xxxxxxxxxx Properties Trust,
A Maryland real estate investment trust,
its general partner
By: __________________________________
Name:
Title:
RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited liability company
By: Ramco-Xxxxxxxxxx Properties Trust,
a Maryland real estate investment trust
its general partner
By: ____________________________________
Name:
Title:
XXXXXXX SPRINGS SC HOLDINGS SC CORP.,
a Delaware corporation
By: _____________________________________
Name:
Title:
-00-
XXXXXXX XXXXXXX XX, LLC,
a Delaware limited liability company
By: RPT/Invest, LLC,
a Delaware limited liability company
By: Ramco-Xxxxxxxxxx Properties, L.P.,
a Delaware limited liability company, Member
By: Ramco-Xxxxxxxxxx Properties Trust,
A Maryland real estate investment
trust, its general partner
By: ________________________________
Name:
Title:
RIVERTOWNE HOLDINGS CORP., a Delaware corporation
By: ______________________________________________________
Name:
Title:
RSSC, LLC, a Delaware limited liability company
By: RPT/Invest, LLC,
a Delaware limited liability company
By: Ramco-Xxxxxxxxxx Properties, L.P.,
a Delaware limited liability company, Member
By: Ramco-Xxxxxxxxxx Properties Trust,
A Maryland real estate investment
trust, its general partner
By: ________________________________
Name:
Title:
RAMCO-XXXXXXXXXX, INC., a Michigan corporation
By: ______________________________________________________
Name:
Title:
-00-
XXXXX XX XXXXXXXX
ss.:
COUNTY OF OAKLAND
The foregoing instrument was acknowledged before me this ____ day of
May, 2002, by Xxxxxx Xxxxxxxxxx, the President of Ramco-Xxxxxxxxxx Properties
Trust, a Maryland real estate investment trust, the general partner of
Ramco-Xxxxxxxxxx Properties, L.P., a Delaware limited partnership, Member of
RPT/Invest, LLC, a Delaware limited liability company, on behalf of the company.
-----------------------------------------
Notary Public, Oakland County, Michigan
My Commission Expires:
STATE OF MICHIGAN
ss.:
COUNTY OF OAKLAND
The foregoing instrument was acknowledged before me this ____ day of
May, 2002, by Xxxxxx Xxxxxxxxxx, the President of Ramco-Xxxxxxxxxx Properties
Trust, a Maryland real estate investment trust, the general partner of
Ramco-Xxxxxxxxxx Properties, L.P., a Delaware limited partnership, on behalf of
the partnership.
-----------------------------------------
Notary Public, Oakland County, Michigan
My Commission Expires:
STATE OF MICHIGAN
ss.:
COUNTY OF OAKLAND
The foregoing instrument was acknowledged before me this ____ day of
May, 2002, by Xxxxxx Xxxxxxxxxx, the Vice President of Xxxxxxx Springs SC
Holdings Corp., a Delaware corporation, on behalf of the corporation.
-----------------------------------------
Notary Public, Oakland County, Michigan
My Commission Expires:
-22-
STATE OF MICHIGAN
ss.:
COUNTY OF OAKLAND
The foregoing instrument was acknowledged before me this ____ day of
May, 2002, by Xxxxxx Xxxxxxxxxx, the Vice President of Rivertowne Holdings
Corp., a Delaware corporation, on behalf of the corporation.
-----------------------------------------
Notary Public, Oakland County, Michigan
My Commission Expires:
STATE OF MICHIGAN
ss.:
COUNTY OF OAKLAND
The foregoing instrument was acknowledged before me this ____ day of
May, 2002, by Xxxxxx Xxxxxxxxxx, the President of Ramco-Xxxxxxxxxx Properties
Trust, a Maryland real estate investment trust, the general partner of
Ramco-Xxxxxxxxxx Properties, L.P., a Delaware limited partnership, Member of
RSSC, LLC, a Delaware limited liability company, on behalf of the company.
-----------------------------------------
Notary Public, Oakland County, Michigan
My Commission Expires:
STATE OF MICHIGAN
ss.:
COUNTY OF OAKLAND
The foregoing instrument was acknowledged before me this ____ day of
May, 2002, by Xxxxxx Xxxxxxxxxx, the Executive Vice President of
Ramco-Xxxxxxxxxx, Inc., a Michigan corporation on behalf of the corporation.
-----------------------------------------
Notary Public, Oakland County, Michigan
My Commission Expires:
-23-
EXHIBIT F
FORM OF LENDER RELEASE
This RELEASE is made as of the _____ day of May, 2002, by DEUTSCHE BANK
TRUST COMPANY AMERICAS (F/K/A/ BANKERS TRUST COMPANY), a New York banking
corporation ("Lender"), having an address at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, XX
2257, New York, New York, on behalf of itself and its past and present
affiliates, successors, assigns and/or participants, in favor of INVESTCORP
PROPERTIES LIMITED, a Delaware corporation ("Guarantor") and SHOP INVEST, LLC, a
Delaware limited liability company ("Shop Invest"), each having an address at
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx.
WHEREAS, pursuant to that certain Unconditional Guaranty (Carve-Outs),
dated as of August 25, 1999 (the "Guaranty"), by Guarantor in favor of Lender,
Guarantor agreed, pursuant to the terms and conditions of the Guaranty, to
guaranty certain obligations of Xxxxxxx Springs SC, LLC, a Delaware limited
liability company ("Borrower") in connection with that certain $16,000,000 loan
to Borrower from Lender (the "Loan"), as evidenced by that certain Promissory
Note, dated as of August 25, 1999, executed by Borrower in favor of Lender, and
other related loan documents, including, without limitation, the loan documents
listed on Schedule 1 annexed hereto and made a part hereof (the "Loan
Documents"); and
WHEREAS, it is a condition under that certain Purchase and Sale
Agreement, dated as of May ___, 2002 (the "Purchase Agreement"), by and between
Shop Invest, and Ramco-Xxxxxxxxxx Properties, L.P., that Lender fully, forever
and irrevocably release, discharge and acquit Guarantor and Shop Invest, and
their respective past and present affiliates, from any obligations or liability
they may have in connection with the Guaranty, the Loan Documents and/or the
Loan.
NOW THEREFORE, To all to whom these Presents shall come or may concern,
know that Lender, on behalf of itself and its past and present affiliates,
successors, assigns and/or participants, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, hereby fully,
forever and irrevocably releases, discharges and acquits Guarantor and Shop
Invest, and their respective past and present affiliates, and the respective
past and present direct and indirect officers, directors, members, partners,
shareholders, agents, and employees of each and all of the foregoing entities,
and its and their respective successors, heirs, and assigns, and any other
person or entity now, previously, or hereafter affiliated with any or all of the
foregoing entities, from any and all actions, causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, guaranties, extents, executions, claims and demands whatsoever, in
law, admiralty or equity, which against the Guarantor, Shop Invest, and their
respective past and present affiliates, Lender or Lender's past and present
affiliates, successors, assigns and/or participants ever had, now have or
hereafter can, shall or may have, from the beginning of the world to the date of
this Release, for, upon, arising under, or by reason of the Guaranty, the Loan
Documents and/or the Loan.
This Release shall be governed and construed in accordance with the
laws of the State of NEW JERSEY.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Lender has caused this Release to be executed on
this ____ of May, 2002.
DEUTSCHE BANK TRUST COMPANY
AMERICAS (F/K/A/ BANKERS TRUST
COMPANY), a New York banking corporation
By: ________________________________
Name:
Title:
-25-
SCHEDULE 1
LOAN DOCUMENTS
1. Promissory Note, dated as August 25, 1999, by Borrower in favor of
Lender.
2. Mortgage, Security Agreement, Assignment of Leases and Rents, Fixture
Filing and Financing Statement, dated as August 25, 1999, by Borrower
in favor of Lender.
3. Environmental Indemnity Agreement, dated as August 25, 1999, by
Borrower in favor of Lender.
4. UCC-1 Financing Statements, dated as August 25, 1999, by Borrower in
favor of Lender.
5. Project Escrow Agreement, dated as August 25, 1999, by and among
Borrower and Lender and Bankers Trust Company, as escrow agent.
6. Springing Lockbox and Security Agreement, dated as August 25, 1999, by
Borrower in favor of Lender.
7. Rent Roll Certificate, dated as August 25, 1999, by Borrower in favor
of Lender.
8. Interest Rate cap Security Agreement, dated as August 25, 1999, by
Borrower in favor of Lender.
-26-
STATE OF , COUNTY OF ss.:
On ___________, 2002__ before me personally came _______________to me
known, who, by me duly sworn, did depose and say that deponent resides at
_______________________, that deponent is the ________________ of
__________________ the corporation described in, and which executed the
foregoing RELEASE, that deponent knows the seal of the corporation, that the
seal affixed to the RELEASE is the corporate seal, that it was affixed by order
of the board of _____________ of the corporation; and that deponent signed
deponent's name by like order.
_______________________________
-27-
RELEASE
This RELEASE is made as of the _____ day of May, 2002, by DEUTSCHE BANK
TRUST COMPANY AMERICAS (F/K/A/ BANKERS TRUST COMPANY), a New York banking
corporation ("Lender"), having an address at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, XX
2257, New York, New York, on behalf of itself and its past and present
affiliates, successors, assigns and/or participants, in favor of INVESTCORP
PROPERTIES LIMITED, a Delaware corporation ("Guarantor") and SHOP INVEST, LLC, a
Delaware limited liability company ("Shop Invest"), each having an address at
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx.
WHEREAS, pursuant to that certain Unconditional Guaranty (Carve-Outs),
dated as of August 25, 1999 (the "Guaranty"), by Guarantor in favor of Lender,
Guarantor agreed, pursuant to the terms and conditions of the Guaranty, to
guaranty certain obligations of RSSC, LLC, a Delaware limited liability company
("Borrower") in connection with that certain $6,000,000 loan to Borrower from
Lender (the "Loan"), as evidenced by that certain Promissory Note, dated as of
August 25, 1999, executed by Borrower in favor of Lender, and other related loan
documents, including, without limitation, the loan documents listed on Schedule
1 annexed hereto and made a part hereof (the "Loan Documents"); and
WHEREAS, it is a condition under that certain Purchase and Sale
Agreement, dated as of May ___, 2002 (the "Purchase Agreement"), by and between
Shop Invest, and Ramco-Xxxxxxxxxx Properties, L.P., that Lender fully, forever
and irrevocably release, discharge and acquit Guarantor and Shop Invest, and
their respective past and present affiliates, from any obligations or liability
they may have in connection with the Guaranty, the Loan Documents and/or the
Loan.
NOW THEREFORE, To all to whom these Presents shall come or may concern,
know that Lender, on behalf of itself and its past and present affiliates,
successors, assigns and/or participants, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, hereby fully,
forever and irrevocably releases, discharges and acquits Guarantor and Shop
Invest, and their respective past and present affiliates, and the respective
past and present direct and indirect officers, directors, members, partners,
shareholders, agents, and employees of each and all of the foregoing entities,
and its and their respective successors, heirs, and assigns, and any other
person or entity now, previously, or hereafter affiliated with any or all of the
foregoing entities, from any and all actions, causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, guaranties, extents, executions, claims and demands whatsoever, in
law, admiralty or equity, which against the Guarantor, Shop Invest, and their
respective past and present affiliates, Lender or Lender's past and present
affiliates, successors, assigns and/or participants ever had, now have or
hereafter can, shall or may have, from the beginning of the world to the date of
this Release, for, upon, arising under, or by reason of the Guaranty, the Loan
Documents and/or the Loan.
This Release shall be governed and construed in accordance with the
laws of the State of FLORIDA.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Lender has caused this Release to be executed on
this ____ of May, 2002.
DEUTSCHE BANK TRUST COMPANY
AMERICAS (F/K/A/ BANKERS TRUST
COMPANY), a New York banking corporation
By: ________________________________
Name:
Title:
-29-
SCHEDULE 1
LOAN DOCUMENTS
1. Promissory Note, dated as August 25, 1999, by Borrower in favor of
Lender.
2. Mortgage, Security Agreement, Assignment of Leases and Rents, Fixture
Filing and Financing Statement, dated as August 25, 1999, by Borrower
in favor of Lender.
3. Environmental Indemnity Agreement, dated as August 25, 1999, by
Borrower in favor of Lender.
4. UCC-1 Financing Statements, dated as August 25, 1999, by Borrower in
favor of Lender.
5. Project Escrow Agreement, dated as August 25, 1999, by and among
Borrower and Lender and Bankers Trust Company, as escrow agent.
6. Springing Lockbox and Security Agreement, dated as August 25, 1999, by
Borrower in favor of Lender.
7. Rent Roll Certificate, dated as August 25, 1999, by Borrower in favor
of Lender.
8. Interest Rate cap Security Agreement, dated as August 25, 1999, by
Borrower in favor of Lender.
-30-
STATE OF , COUNTY OF ss.:
On ___________, 2002__ before me personally came _______________to me
known, who, by me duly sworn, did depose and say that deponent resides at
_______________________, that deponent is the ________________ of
__________________ the corporation described in, and which executed the
foregoing RELEASE, that deponent knows the seal of the corporation, that the
seal affixed to the RELEASE is the corporate seal, that it was affixed by order
of the board of _____________ of the corporation; and that deponent signed
deponent's name by like order.
_______________________________
-31-
