EXHIBIT 10.3
MEMBERSHIP INTEREST PURCHASE AGREEMENT
This Membership Interest Purchase Agreement (this "Agreement") is made
by and between HIG Mall, LLC, a Florida limited liability company (the
"Seller"), and Glimcher Properties Limited Partnership, a Delaware limited
partnership, (the "Purchaser"), to be effective as of the last date of execution
of this Agreement by Seller and Purchaser (the "Effective Date"). Xxxxxxxxx
Xxxxxxxx Mall, LLC, a Delaware limited liability company (the "Company") has
also agreed to execute this Agreement to evidence those obligations imposed upon
the Company by the terms of this Agreement. Flagler Title Company, 0000 Xxxx
Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000 ("Flagler" or
the "Escrow Agent") shall also execute the Consent attached to this Agreement
wherein it agrees to serve as the escrow and closing agent on the terms and
subject to the conditions set forth in this Agreement.
RECITALS
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A. The Seller is a member of the Company, owning an eighty
percent (80.0%) limited liability company membership interest
in the Company. The Company's two other members,
(collectively, the "Members", or singularly, a "Member") are
Glimcher Eastland, Inc., a Delaware corporation ("Glimcher
Eastland") which is the Managing Member and owns a one percent
(1.0%) limited liability company membership interest, and the
other Member being the Purchaser which owns a nineteen percent
(19.0%) limited liability company membership interest. The
Seller, the Purchaser and Glimcher Eastland are the three and
only Members of the Company. The Company was formed pursuant
to a certain Operating Agreement, dated September 27, 2001, as
amended by the First Amendment to Operating Agreement, dated
September 27, 2001 (collectively, the "Operating Agreement").
B. The Purchaser desires to purchase and the Seller desires to
sell, Seller's eighty percent (80.0%) limited liability
company membership interest ("Interest") in the Company on the
terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, the sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound, agree as follows.
1. Purchase and Sale of Membership Interest. On the terms and subject to
the conditions of this Agreement, the Purchaser agrees to purchase from
the Seller, and the Seller agrees to sell to the Purchaser, the
Interest for the price and on the terms set forth in this Agreement.
The transfer (the "Transfer") of the Interest shall be completed by the
execution of the Assignment of Membership Agreement (the "Assignment
Agreement") attached hereto as Exhibit A, and such Transfer shall be
effective upon the Closing Date (as that term is defined in Section 3
below).
2. Purchase Price. The purchase price for the Interest shall be Four
Million Seven Hundred Fifty Thousand Dollars ($4,750,000.00) as
adjusted as specifically provided in Section 5A of this Agreement (the
"Purchase Price").
3. Payment Terms. Simultaneously with the closing (the "Closing" or the
"Closing Date") of the purchase and sale of the Interest, the Purchase
Price shall be paid by the Purchaser to the Seller in immediately
available federal funds.
4. Lender Consents.
a. Conditions Precedent to Closing. The Company is the owner of
the regional shopping center operated as "Eastland Mall" in
Charlotte, Mecklenburg County, North Carolina, ("the Mall").
The fee title estate (the "Mall Land") to the Mall is subject
to a series of loan documents (collectively, the "Loan
Documents") originally dated as of August 11, 1998. The Loan
Documents evidence a certain loan (the "Loan") which is
identified as loan no. 400031904 by the current lender
("Lender"), LaSalle National Bank Association, trustee for
CAPCO America Securitization Corporation Commercial Mortgage
Pass-Through Certificates, Series 1998-D7. Prior to the
Closing of this Agreement, the Lender must consent to the
Transfer. The Lender's consent is coordinated through CapMark
Services, L.P. ("CapMark") which is the servicer ("Loan
Servicer") of the Loan. One component of receiving the
Lender's consent is obtaining the necessary "no downgrade
letters" from the applicable rating agencies (collectively the
"Rating Agencies") which rate the Loan which was securitized.
The Seller's obligation to sell, and the Purchaser's
obligation to purchase the Interest, is subject to obtaining
all necessary consents from the Lender, Loan Servicer, and/or
the Rating Agencies (all of which consents are collectively
referred herein as the "Lender Consents") as are required
under the Loan Documents and all other documents to which the
Loan has been made subject to by the Lender in connection with
the securitization of the Loan. Obtaining the Lender Consents
and the payment of the Purchase Price are the sole condition
precedents to the Closing of the Transfer, but the parties
acknowledge and recognize that each of them is otherwise
obligated to comply with all of their respective obligations
set forth in this Agreement. The Purchaser agrees to prepare
and process all documents and agreements, (collectively, the
"Transfer Approval Documents") with the Loan Servicer, the
Lender and the Rating Agencies necessary to obtain all such
Lender Consents, and Purchaser agrees to use commercially
reasonable efforts to obtain the Lender Consents as
expeditiously as possible, using commercially reasonable
efforts to obtain all of same. Seller shall have the right to
approve all Transfer Approval Documents which require its
signature, and Seller agrees to act in a commercially
reasonable manner in negotiating the content of all Transfer
Approval Documents which it must sign, and further agrees to
use commercially reasonable efforts to expeditiously finalize
and execute all such Transfer Approval Documents. Provided,
however, it is specifically acknowledged that Seller shall not
be required to pay any amounts other than its own counsel fees
associated with the review and negotiation of the Transfer
Approval Documents, and Seller shall not be required to
consent to any Transfer Approval Document that provides for
the imposition of any charge against or payment by or on
behalf of the Company that would change the cash that would
have otherwise been distributable to Seller relating to its
Interest up to the Closing Date. No Transfer Approval
Documents shall contain terms and conditions which are
inconsistent with the terms of this Agreement. Neither
Purchaser nor Seller shall be in default under the terms of
this
Agreement if the Lender Consents are not obtained,
notwithstanding the respective commercially reasonable efforts
of Purchaser and Seller to obtain same prior to the Escrow
Termination Date (as that term is defined in Section 5C of
this Agreement). Purchaser and Seller shall each pay their own
respective legal fees incurred in connection with obtaining
the Lender Consents and in reviewing any and all documents
submitted in connection therewith. Purchaser shall pay the
processing fees, costs and expenses charged by or on behalf of
the Lender, CapMark, the Rating Agencies in connection with
approving the Transfer and obtaining the required Lender
Consents, including without limitation, the costs and expenses
associated with the preparation and processing of the Transfer
Approval Documents.
b. Procedure with Respect to Lender Consents. Purchaser agrees to
provide copies of the Transfer Approval Documents to Seller,
and will request CapMark, which processes all such Transfer
Approval Documents, to copy Seller on all correspondence and
other documents which CapMark sends, or causes to be sent, to
the Purchaser. Except, however, the Purchaser may redact
financially sensitive information related solely to the
Purchaser contained in any Transfer Approval Documents or in
any of the Purchaser's correspondence relating to such
Transfer Approval Documents.
5A. Proration of Distributable Cash and Real Estate Tax and Insurance
Subaccounts under Loan Documents. The parties agree as follows with
respect to the proration of distributions under the Operating Agreement
and the liabilities for ad valorem real estate taxes ("Taxes") and
insurance premiums ("Insurance Premiums") due for the policies
(collectively, the "Policies") of insurance required to be maintained
under the Loan Documents:
(i) Distributable Cash. On the eleventh (11th) day of each month,
the Company has made a distribution to its Members of the
Member's respective Percentage Interest (as defined in the
Operating Agreement) of the Company's Distributable Cash (as
defined in the Operating Agreement) for the prior thirty (30)
day period (the "Prior Period") ending on and including the
tenth (10th) day of the month in which distribution occurs,
and the Company shall continue to do so pursuant to the
provisions of the Operating Agreement. Distributable Cash
shall be prorated to the Closing Date such that Seller's
eighty percent (80%) share (the "Seller's Share") attributable
to the period up to and ending on the day prior to the Closing
Date (which date shall be hereinafter referred to as the
"Proration Date") shall be paid to the Seller. The proration
of the Distributable Cash shall be calculated by the Company,
and the Company shall report the prorated numbers to the
Seller using the same documents, detail and format used by the
Company historically in preparing and distributing the normal
monthly statements to the Members relating to the monthly
distributions of Distributable Cash. In the event the Escrow
Termination Date occurs and the Closing does not,
Distributable Cash shall not be prorated for the month in
which the Escrow Termination Date occurs, and Distributable
Cash shall continue to be distributed to the Members pursuant
to the provisions of the Operating Agreement. If the Closing
does occur, then as soon as practical after the Closing, the
Company shall prepare a true-up report (the "True-Up Report")
for the period commencing on January 1, 2003 and extending
through the Proration Date. The True-Up Report shall be
generated due to the fact that the Distributable Cash
actually distributed to the Members for calendar year 2003 up
through the Proration Date may in part be based upon budgeted,
rather than actual expenses, and the True-Up Report shall be
based upon the actual expenses accrued through the Proration
Date (the "Actual Expenses"). The True-Up Report shall
reconcile the differences, if any, between the Distributable
Cash actually distributed and the amount of Distributable Cash
which should be distributed based upon the Actual Expenses.
The Company shall use commercially reasonable efforts to
prepare and distribute the True-Up Report to the Seller within
not greater than sixty (60) days after the Closing Date. The
True-Up Report shall also contain a reasonable level of
back-up detail to substantiate the numbers reflected on the
True-Up Report. The Seller shall review the True-Up Report and
notify the Company within ten (10) days after receipt (the
"True-Up Review Period") of the True-Up Report if it has
objections (the "Seller's True-Up Objection Notice"), and if
it does, providing detailed reasons and explanations
supporting the Seller's objections. Within not greater than
thirty (30) days after receipt of the Seller's True-Up
Objection Notice, the Company shall deliver a response (the
"Company True-Up Response") responding to the Seller's True-Up
Objection Notice, providing a detailed response and a
reasonable level of backup detail; or, if no Company True-Up
Response is delivered timely by the Company, the Seller's
True-Up Objection Notice shall be deemed accepted by the
Company. If the Seller does not timely send the Company a
True-Up Objection Notice, then the Company shall pay the
Seller the Seller's Share of the Distributable Cash, if any,
due the Seller as reflected on the True-Up Report within two
(2) business days after the expiration of the True-Up Review
Period. If the Seller does timely deliver a True-Up Objection
Notice to the Company, then the Company shall pay the Seller
the Seller's Share of the Distributable Cash, if any, due to
the Seller as reflected on the Company True-Up Response
simultaneously with the delivery of the Company True-Up
Response (or, if no Company True-Up Response is delivered
within the applicable time period, then the Company shall pay
the Seller the Seller's Share of the Distributable Cash, if
any, due to the Seller as reflected on the Seller's True-Up
Objection Notice within five (5) business days after the
expiration of the True-Up Review Period). The delivery of the
True-Up Report or the Company True-Up Response, as applicable,
or if there are payments due, then the payments due under the
respective True-Up Report or Company True-Up Response, as
applicable, shall be the final and definitive reconciliation
of all amounts due to the Seller arising directly or
indirectly, as a result of Seller's being a Member of the
Company, a former co-leasing agent under the Management
Agreement, or for whatever reason relating to the ownership of
the Mall.
(ii) Proration of Taxes and Insurance Premiums. The parties agree
that the liabilities for Taxes and Insurance Premiums shall be
prorated through the Proration Date so that the Seller's Share
of the liability (i) for Taxes due to the applicable
governmental jurisdiction, and (ii) for Insurance Premiums due
under the Policies, will be determined on an accrual basis
through the Proration Date. The parties acknowledge that under
the terms of the Loan Documents, the Deposit Bank (as defined
in the Loan Documents) maintains a separate account (a
"Subaccount") into which Taxes and Insurance Premiums are paid
by the Company, but no amounts will be withdrawn from the
Deposit Bank's Subaccount, and the proration of Taxes and
Insurance Premiums will be reconciled between the Purchaser
and the Seller, based upon Seller's Share of the liability for
both of said amounts prorated through the Proration Date, and
such amounts shall be reflected on the Closing Settlement
Statement (as defined and referenced in Section 5C of this
Agreement), with the Purchase Price being adjusted
accordingly, and paid at the Closing as required by Section 3
of this Agreement. Except for the proration of Taxes and
Insurance Premiums as set forth above, no other items escrowed
under any other Subaccounts under the Loan Documents shall be
subject to proration.
5B. Operation of Company Prior to Closing Date. From the Effective Date to
the Closing Date, the Seller's Interest shall be treated for all
purposes as the property of the Seller, and the Purchaser shall have no
rights whatsoever with respect to such Interest. The provisions of the
Management Agreement and the Operating Agreement shall continue to
remain in effect; provided, however, that all parties to the Management
Agreement shall sign the Consent and Amendment to the Management
Agreement (the "Management Agreement Amendment") attached to this
Agreement as Exhibit C to be effective as of the Effective Date, but
only if the Closing does not occur, which Consent and Amendment shall
provide as follows:
(i) The current term of the Management Agreement expires on
September 27, 2003, and that term is automatically renewed for
an additional one year term unless one of the parties to the
Management Agreement notifies (the "Management Agreement
Termination Notice") the other parties that it elects not to
have the then current term of the Management Agreement be
extended. The Management Agreement Termination Notice must be
given by not later than July 28, 2003 (the "MA Termination
Date"). If the Closing has not occurred prior to the MA
Termination Date, the parties agree and acknowledge that the
Management Agreement Amendment will provide that the
Management Agreement Termination Notice may be given at any
time after July 28, 2003 so as to terminate the Management
Agreement as of the date which is thirty (30) days after the
date that the Management Agreement Termination Notice is
received by the Manager; and,
(ii) During the period from the Effective Date through and
including the Closing Date, no payments shall be due the
Seller in its capacity as co-leasing agent under the
Management Agreement, but that if the Closing does not occur,
all amounts due to Seller in its capacity as co-leasing agent
under the Management Agreement from the period from the
Effective Date through the Escrow Termination Date shall be
paid to the Seller within ten (10) days after the Escrow
Termination Date.
If the Closing does occur, then consistent with the terms of this
Agreement, HIG acknowledges and recognizes that it shall no longer be a
signatory to, or have any rights or responsibilities under, the
Management Agreement. Accordingly, effective as of the Closing, but
only if the Closing does, in fact, occur, HIG hereby consents and
authorizes the Company, the Purchaser and Glimcher Eastland to cause
the Management Agreement to be amended and restated to contain such
terms as determined by the Company, the Purchaser and Glimcher Eastland
in their sole and absolute discretion. The rights contained in this
last paragraph (all provisions contained after subsection (ii) above),
shall survive the Closing.
5C. Closing. The Closing shall occur after the Purchaser has been notified
by the Loan Servicer that the requisite Lender Consents have been
obtained and that the Transfer has been approved ("Lender Approval
Notice") according to the schedule set forth in this Section 5C. Upon
receipt of the Lender Approval Notice, Purchaser shall deliver a copy
of same to the Seller if CapMark failed to do so, and Purchaser shall
send a written notice ("Closing Notice") to the Seller and the Escrow
Agent requesting that the Escrow Agent prepare the closing settlement
statement (the "Closing Settlement Statement") which shall set forth
the proration for Taxes and Insurance Premiums as set forth in Section
5A(ii) above, but said Closing Settlement Statement shall reflect no
other adjustments or charges, and it shall be sent to the Seller and
the Purchaser within two (2) business days after Escrow Agent's receipt
of the Closing Notice via telecopier transmission to all applicable
persons specified in Section 14 below ("Telecopier Delivery").
Purchaser and Seller shall review the Closing Settlement Statement and
send via Telecopier Delivery any objections to the Escrow Agent within
two (2) business days after receipt of the Closing Settlement
Statement. Any objections shall provide detailed reasons and
explanations supporting the objections. If no objections are received
by the Escrow Agent within the aforesaid two (2) business day period,
then the Purchaser and Seller shall execute the Closing Settlement
Statement and deliver it to the Escrow Agent via Telecopier Delivery. A
party's failure to object and to sign and deliver the Closing
Settlement Statement via Telecopier Delivery to the Escrow Agent, shall
constitute a deemed approval by such party to the Closing Settlement
Statement. If any objections are received by the Escrow Agent, the
parties shall use commercially reasonable efforts to resolve the
dispute between the parties and shall notify the Escrow Agent in a
writing signed by both the Purchaser and the Seller upon resolution of
such dispute. Within one (1) business day after the Closing Settlement
Statement is either executed by, or deemed to have been executed by,
both the Purchaser and the Seller (or the earliest date on which a
party that had objected notifies the Escrow Agent in writing of the
withdrawal of such objection, or the Purchaser and Seller notify the
Escrow Agent in a writing signed by both of them that they have reached
agreement regarding such dispute), the Purchaser shall wire transfer
the Purchase Price to the Escrow Agent, and such wired funds shall be
disbursed by the Escrow Agent pursuant to the terms of the Closing
Settlement Statement on the date that the wired funds are sent to the
Escrow Agent, if commercially possible, and if not, then immediately on
the next business day. Simultaneously with the disbursement of the
Purchase Price, the Escrow Agent shall undertake its obligations as
described in Sections 6 through 8 of this Agreement. Provided however,
if the Lender Approval Notice has not been given and the Closing
Settlement Statement has not been executed or deemed to have been
approved (or otherwise agreed upon) as provided above by both the
Seller and Purchaser, all on or before August 29, 2003 (the "Escrow
Termination Date"), then unless the parties agree in writing to extend
the Escrow Termination Date, this Agreement shall terminate and the
penultimate sentence of Section 8 of this Agreement shall control with
respect to the Closing Documents and the respective obligations of the
parties hereto.
6. Escrow Closing. Simultaneously with the execution of this Agreement,
the Purchaser and Seller shall execute all of the documents
(collectively, the "Initial Escrowed Closing Documents") identified in
Section 7(a) of this Agreement, and deliver all such executed Initial
Escrowed Closing Documents with counterpart signatures to Flagler. Four
sets of each Initial Escrowed Closing Document shall be executed by
each respective signatory.
Flagler shall hold the Initial Escrowed Closing Documents in escrow and
disburse them according to the terms of this Agreement.
7. Identification of Closing Documents.
a. Initial Escrowed Closing Documents. In addition to the Initial
Escrowed Closing Documents, the parties further acknowledge
and recognize that there may be other documents, as identified
in Section 7(b) below (collectively, the "Subsequent Escrowed
Closing Documents") which will be required to be tendered to
the Escrow Agent after the execution of this Agreement. The
Initial Escrow Closing Documents and the Subsequent Escrowed
Closing Documents are collectively referred to in this
Agreement as the "Closing Documents". The Initial Escrowed
Closing Documents shall include the following:
Parties Required to Sign Referred to in
Title of Closing Document or Deliver Section of Agreement
-------------------------- ------------------------ --------------------
(i) Assignment Agreement Purchaser and Seller 1 and Exhibit A
(ii) Intentionally Deleted
(iii)Settlement Agreement 9 and Exhibit B-1
(iv) Joint Dismissal Entry Litigation counsel for 9 and Exhibit B-2
Purchaser and Seller
(v) Management Agreement All current signatories to 5B and Exhibit C
Amendment Management Agreement
b. Subsequent Escrowed Closing Documents. With respect to the
following documents, only one (1) original of the documents
identified in subsections (i), (iii) and (iv) shall be
delivered to the Escrow Agent. With respect to the Closing
Settlement Statement, two (2) originals shall be delivered by
each of Seller and Purchaser, and the Closing Settlement
Statement shall be executed in counterpart. The Subsequent
Escrowed Closing Documents shall include the following:
Parties Required to Sign Referred to in
Title of Closing Document or Deliver Section of Agreement
--------------------------------- ------------------------ --------------------
(i) Good Standing Certificates Purchaser and Seller
issued by applicable Sections 10(a)(v)
Secretaries of State and 10(b)(iii)
(ii) Purchase Price Purchaser 2
(iii) True-Up Report Company 5A(i)
(iv) Company's True-Up Response, Company 5A(i)
if applicable
(v) Such other documents as As applicable 12
are necessary to consummate the
Transfer, including without
limitation, the Closing
Settlement Statement
c. Dating of Closing Documents. The Escrow Agent shall complete
the date for each Closing Document, which date shall be the
Closing Date. Provided, however, if the Escrow Termination
Date occurs prior to receiving the Lender Consents, then the
Closing Documents shall not be dated and the Escrow Agent
shall undertake the actions set forth in the penultimate
sentence of Section 8 of this Agreement.
8. Disbursement of Closing Documents and Payment of the Purchase Price. It
shall be the responsibility of Flagler to serve as the escrow and
closing agent under the terms of this Agreement, and Flagler hereby
acknowledges that it will not require the parties to execute a separate
escrow agreement. Flagler agrees to accept receipt of the Closing
Documents and disburse them according to the terms of this Agreement.
If the Closing occurs, the Purchaser shall wire transfer the Purchase
Price to Flagler, and Flagler shall make all disbursements according to
the Closing Settlement Statement. If the Closing occurs, Flagler shall
distribute the Closing Documents as follows: (a) the four originals of
the Assignment Agreement shall be distributed to the Purchaser, and the
Seller shall receive one copy of such document; (b) two originals of
all other Initial Escrowed Closing Documents, the True-Up Report, the
Closing Settlement Statement, and any other documents executed by the
parties and tendered into escrow pursuant to Section 7(b)(v) shall be
delivered to each of the Purchaser and the Seller; and, (c) Purchaser's
good standing certificates shall be delivered to the Seller, and the
Seller's good standing certificates shall be delivered to the
Purchaser. If the Lender Consents are not obtained by the Escrow
Termination Date, and if the parties have not otherwise agreed in
writing to extend the Escrow Termination Date, then either Purchaser or
Seller shall so notify Flagler, and Flagler shall destroy all Closing
Documents, and all the parties to this Agreement shall be released from
any and all obligations set forth in this Agreement, or set forth in
any of the Closing Documents. Provided, however, under the
circumstances set forth in the immediately preceding sentence, (y) any
cause of action relating to the failure of either the Purchaser or the
Seller, as the case may be, to perform their respective obligations set
forth in this Agreement prior to the Escrow Termination Date, and (z)
the Management Agreement Amendment shall survive the termination of
this Agreement.
9. Agreement Relating to Collateral Documents. Seller is a party to both
the Company's Operating Agreement, as well as to a certain Shopping
Center Management and Leasing Agreement dated September 27, 2001
("Management Agreement"). The parties hereby confirm and ratify that in
the event the Closing of the Transfer occurs, then from and after the
Closing Date, the Seller shall have no rights of whatever nature or
kind, nor any obligations of whatever nature or kind, under either the
Management Agreement or the
Operating Agreement (other than the Seller's right to indemnification
by the Company pursuant to Section 4.10 of the Operating Agreement, as
provided in Section 17 of this Agreement. The parties shall further
execute and deliver as one of the Initial Escrowed Closing Documents,
both the Settlement Agreement (the "Settlement Agreement") and the
Joint Stipulated Dismissal Entry (the "Joint Dismissal Entry") attached
as Exhibit A to the Settlement Agreement, each of which documents are
attached to this Agreement respectively as Exhibit B-1 and B-2.
10. Representations and Warranties.
(a) Seller's Representations and Warranties. Seller hereby
represents and warrants to the Purchaser as of the Effective
Date and again as of the Closing Date as follows:
(i) that it has good and marketable title to the
Interest, free and clear of any lien, pledge,
security interest, claim, option, agreement,
encumbrance or other restriction of whatever nature
or kind, except as may be imposed by the Loan
Documents;
(ii) that it has not previously transferred any part of
the Interest sold under the terms of this Agreement;
(iii) that it has the full and complete right and power to
make the Transfer contemplated by this Agreement;
(iv) both the execution and delivery of this Agreement by
the Seller and by the undersigned signatory on behalf
of the Seller, and the performance of all obligations
and delivery of all Closing Documents, have been duly
and properly authorized by all proper, legal and duly
authorized actions;
(v) the Seller is a limited liability company in good
standing under the laws of the State of Florida, and
that each of its constituent members, as applicable,
are in good standing, have the right and power to
authorize the Seller to enter into this Agreement,
and that all such actions have been duly and properly
authorized by all proper, legal and duly authorized
actions. The Seller shall order and tender to Flagler
for distribution to Purchaser at the Closing, a good
standing certificate issued by the Florida secretary
of state to confirm that the Seller is in good
standing under the laws of the State of Florida. The
tender of such good standing certificate shall in no
way release or excuse Seller from the
representations, warranties and obligations contained
in the first sentence of this Section 10(a)(v).
(vi) except for the Lender Consents, no other consents
from any person, entity, lender or other third party
of whatever nature or kind are required in order to
enter into this Agreement and perform all of its
obligations hereunder;
(b) Purchaser's Representations and Warranties. Purchaser hereby
represents and warrants to the Seller as of the Effective Date
and again as of the Closing as follows:
(i) that it has the full and complete right and power to
accept the Transfer contemplated by this Agreement;
(ii) both the execution and delivery of this Agreement by
the Purchaser and by the undersigned signatory on
behalf of the Purchaser, and the performance of all
obligations and delivery of all Closing Documents,
have been duly and properly authorized by all proper,
legal and duly authorized actions;
(iii) the Purchaser is a limited liability company in good
standing under the laws of the State of Delaware, and
that each of its constituent members, as applicable,
are in good standing, have the right and power to
authorize the Purchaser to enter into this Agreement,
and that all such actions have been duly and properly
authorized by all proper, legal and duly authorized
actions. The Purchaser shall order and tender to
Flagler for distribution to Seller at the Closing, a
good standing certificate issued by the Delaware
Secretary of State to confirm that the Purchaser is
in good standing under the laws of the State of
Delaware. The tender of such good standing
certificate shall in no way release or excuse
Purchaser from the representations, warranties and
obligations contained in the first sentence of this
Section 10(b)(iii).
(iv) except for the Lender Consents, no other consents
from any person, entity, lender or other third party
of whatever nature or kind are required in order to
enter into this Agreement and perform all of its
obligations hereunder;
(v) that it has good and marketable title to the interest
the Purchaser owns in the Company, free and clear of
any lien, pledge, security interest, claim, option,
agreement, encumbrance or other restriction of
whatever nature or kind, except as may be imposed by
the Loan Documents.
The representations and warranties set forth in this Section 10 shall
survive the Closing, and all same shall be true and accurate in all
material respects as of the Effective Date as well as of the date of
the Closing, without the necessity of signing any updated certificate
or other document reconfirming all said representations and warranties
as of the date of the Closing.
11. Intentionally Deleted.
12. Further Assurances. The parties agree to execute and deliver such
instruments and take such further actions as another party may, from
time to time, reasonably request and are reasonably required in order
to effectuate the purposes and to carry out the terms of this
Agreement.
13. Broker Fees. Each party hereby represents and warrants to the other
that it has dealt with no broker, investment broker or agent in
connection with the transactions contemplated hereby and that no
commission, finders' fees or other such payments are due any such
person. Purchaser and Seller shall indemnify, defend (with counsel
satisfactory to the indemnified party) and agree to hold the other
harmless from and against any and all loss, liability, cost or expense
(including without limitations, court costs and reasonable attorneys'
fees and expenses) that the one may suffer or sustain should the
foregoing representations and warranties of the other prove inaccurate.
The foregoing indemnity shall survive the Closing and/or any
termination of this Agreement.
14. Notice Addresses. Any notice required or permitted by or in connection
with the
Agreement, without implying the obligation to provide any such notice,
shall be in writing sent to the appropriate addresses set forth below
or to such other addresses as may be hereafter specified by written
notice by Seller or Purchaser. Any such notice shall be deemed to be
effective (a) one (1) day after deposit if sent by a nationally
recognized overnight courier service, or (b) two (2) days after deposit
if sent by the U.S. Postal Service, postage prepaid, certified, return
receipt requested, or (c) upon receipt if hand delivered or sent by
facsimile with the sender retaining the facsimile confirmation to prove
delivery.
(a) If to Seller:
HIG Mall, LLC
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xx
Fax No.: (000) 000-0000
With a copy to:
Trenam Xxxxxx
Bank of America Tower
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
(b) If to the Purchaser:
Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax No: (000) 000-0000
With a copy to:
Xxxxx Xxxxx Xxxx LLC
One Columbus - Suite 1000
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxxxxxx, Esq.
Fax No: (000) 000-0000
(c) If to Flagler:
Flagler Title Company
0000 Xxxx Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Fax No.: (000) 000-0000
15. Choice of Law. The laws of the State of Delaware shall govern the
rights and obligations of the parties to this Agreement, and the
interpretation and construction and enforceability thereof, and any and
all issues relating to the transactions contemplated herein.
16. Miscellaneous. This Agreement may be changed, waived or amended only in
an agreement signed by all parties to this Agreement. Except as
specifically provided herein, this Agreement contains the entire
understanding between the parties relating to the subject matter
hereof, and it supersedes any and all prior oral or written
understandings or agreements relating to any such matters. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto, and their successors, assigns, heirs and personal
representatives, as applicable. The captions of the several sections of
this Agreement are not a part hereof, and these captions shall not be
used to interpret any of the terms of this Agreement. The Recitals are
intended to be a part of this Agreement and are incorporated into the
body hereof. All parties signing this Agreement have taken all duly
authorized action necessary to authorize the execution of this
Agreement and to execute any and all documents related hereto, and each
of the parties may rely upon this section of the Agreement without the
necessity of having further documentation to evidence such authority.
If either party defaults under its obligations set forth in this
Agreement, the non-defaulting party shall be entitled to recover
reasonable attorneys' fees and expenses incurred by the non-defaulting
party in either defending or initiating any action against the
defaulting party. The parties specifically acknowledge, represent and
warrant that all of the terms and conditions of this Agreement are
adequately and fully supported by consideration. The date of this
Agreement shall be the date that the last party signs it. In computing
any period of time under this Agreement, the day of the act or event
for which the designated period of time begins to run shall not be
included, but the last day of the period shall be included, unless it
is a Saturday, Sunday or a legal holiday, in which event, the period
shall run through the next business day. This Agreement may be executed
in counterparts and shall be fully enforceable so long as both parties
have signed either one Agreement or documents in counterpart. This
Agreement may be executed by facsimile signature and such facsimile
signatures shall be deemed as originals.
17. Indemnification. If the Closing of the Transfer occurs, then from and
after the Closing Date, the Purchaser shall, and hereby agrees to,
indemnify Seller and hold it harmless from any loss, liability, claim,
demand, damage or expense (including without limitation, reasonable
costs, expenses and attorneys' fees actually incurred in connection
with the defense of any such matter) which may be made or brought
against the Seller arising out of the actions of the Purchaser or the
Company related to the operation of the Mall at any time prior to or
after the Closing Date. This indemnification obligation shall survive
the Closing and shall not be released or terminated by this Agreement
or the Settlement Agreement. Provided further, if the Closing of the
Transfer occurs, then from and after the Closing Date, the Company
acknowledges and agrees that the Company's indemnification obligations
specifically set forth in Section 4.10 of the Operating Agreement shall
continue to apply to
the Seller in its capacity as a member of the Company up to the Closing
Date, and the terms, conditions, rights and obligations of Section 4.10
of the Operating Agreement as they relate to the Seller for the period
of time up to the Closing Date shall not be terminated or amended by
any future amendment of the Operating Agreement. The Company's
obligation set forth in the immediately preceding sentence (and as set
forth in Section 4.10 of the Operating Agreement) shall survive the
Closing of the Transfer and shall not be released or terminated by this
Agreement or the Settlement Agreement.
[End of Agreement - Signatures appear on the following pages]
IN WITNESS WHEREOF, the following signatories, intending to be legally
bound hereby, have executed this Agreement.
SELLER:
HIG MALL, LLC,
a Florida limited liability company,
By: _________________________________
Name: _______________________________
Title: ________________________________
Date: June 20, 2003
PURCHASER:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP,
a Delaware limited partnership, through its
sole general partner signing below
By: GLIMCHER PROPERTIES CORPORATION
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Date: June 20, 2003
COMPANY:
XXXXXXXXX XXXXXXXX MALL, LLC,
a Delaware limited liability company,
By: GLIMCHER EASTLAND, INC.
a Delaware corporation, its Managing
Member
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Date: June 20, 2003
CONSENT
TO
MEMBERSHIP INTEREST PURCHASE AGREEMENT
Glimcher Eastland Inc., A Delaware corporation, the only other Member
of the Company, hereby consents to the Transfer of the Interest as described in
the Agreement to which this Consent is attached.
GLIMCHER EASTLAND, INC.,
a Delaware corporation, its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx, President
Date: June 20, 2003
CONSENT
TO
SERVE AS ESCROW AGENT
Flagler Title Company, a Florida corporation, hereby joins in the
execution of this Agreement and agrees to serve as the escrow and closing agent
to consummate the Closing and agrees to perform the duties and obligations
imposed upon Xxxxxx by the terms of the Agreement.
Flagler Title Company,
a Florida corporation
By:
------------------------
Its:
-----------------------
Date: June ___, 2003
