EXHIBIT 10.4
EXECUTION COPY
REDEMPTION AND RELEASE AGREEMENT
This REDEMPTION AND RELEASE AGREEMENT (the "Agreement") is entered into
as of April 3, 2001 by and between Xxxxxxx Pacific Properties, Inc., a Maryland
corporation (the "Company"), Xxxxxxx Pacific Operating Partnership, L.P., a
Delaware limited partnership ("BPOP"), Xxxxxxxxx Xxxxxxx Holdings, L.L.C. and
Xxxxxxxxx Xxxxxxx Co-Holdings, L.L.C., each a Delaware limited liability company
(collectively, "Xxxxxxxxx"), and Blackacre SMC Master Holdings, LLC and
Blackacre Funding LLC (collectively, "Blackacre," and together with Xxxxxxxxx,
the "Preferred Stockholders").
WHEREAS, each of the Preferred Stockholders is the record owner of the
number of shares of Series 2000-C Convertible Preferred Stock, par value $.01
per share (the "Preferred Stock"), of the Company set forth beside its
respective name on EXHIBIT A hereto.
WHEREAS, the Company, BPOP and the Preferred Stockholders are parties
to that certain Exchange Agreement, dated August 31, 2000 (the "Original
Exchange Agreement"), as amended by that certain letter agreement, dated
September 11, 2000 (the "Letter Amendment, and together with the Original
Exchange Agreement, the "Exchange Agreement"), pursuant to which, among other
things, the Preferred Stockholders acquired an aggregate of 4,400,000 shares of
Preferred Stock of the Company (the "Shares") in exchange for an equivalent
number of shares of Series 1997-A Convertible Preferred Stock of the Company;
WHEREAS, the Company or one of its subsidiaries intends to sell
nineteen properties known as the Golden State Portfolio to Xxxxxxxxxx XX, Inc.
on or around April 3, 2001 (the "Xxxxxxxxxx Purchase"), and has entered into a
purchase contract with respect to such sale;
WHEREAS, the Company desires to exercise its right to redeem the
Preferred Stock from the Preferred Shareholders in accordance with Section 15 of
the Articles Supplementary relating to the Preferred Stock (the "Articles
Supplementary") on or after the date on which the Xxxxxxxxxx Purchase is
consummated; and
WHEREAS, all terms not otherwise defined herein shall have the
respective meanings ascribed to them in the Exchange Agreement and in the
Articles Supplementary.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained in this Agreement, the parties hereto agree as follows:
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SECTION 1. REDEMPTION.
1.1. REDEMPTION OF THE SHARES. The Company shall exercise its right
to redeem for cash all of the Shares held by the Preferred Stockholders on the
date that the Xxxxxxxxxx Purchase is consummated or on the following Business
Day (the date of such redemption being referred to herein as the "Redemption
Date") at a price per Share equal to the Mandatory Redemption Price as of the
Redemption Date. As of April 3, 2001, the Mandatory Redemption Price per Share
will equal $26.261112, of which $0.011112 represents the Accrued Dividends per
Share. During the period beginning on April 3, 2001 and ending on April 13, 2001
the Accrued Dividends per Share, and therefore the Mandatory Redemption Price
per Share, shall increase by $0.005556 for each day after April 3, 2001 up to
but not including the Redemption Date; PROVIDED HOWEVER that nothing in this
Agreement is intended to address what the Mandatory Redemption Price would be
for any date after April 13, 2001. The Company shall direct the escrow agent
with whom Xxxxxxxxxx XX, Inc. is depositing the funds in respect of the
Xxxxxxxxxx Purchase to transfer all amounts due to each Preferred Stockholder
pursuant to this Section 1.1 directly to such Preferred Stockholder in
accordance with the instructions set forth in Section 1.3 below.
1.2. NOTICE. Notwithstanding anything contained in Section 15(b) of
the Articles Supplementary or otherwise to the contrary and provided that the
Shares are redeemed in accordance with Section 1.1 above on or prior to April
13, 2001, the Company and the Preferred Stockholders hereby agree that this
Agreement shall constitute valid and effective notice by the Company to the
Preferred Stockholders of the Company's exercise of its right to redeem the
Preferred Stock under Section 15(b) of the Articles Supplementary.
1.3. PAYMENT. On the Redemption Date, the Company shall pay the
amounts set forth in Section 1.1 above in immediately available funds prior to
4:00 p.m. New York City time according to the following instructions:
Xxxxxxxxx:
Bank Name Bank of America
0000 Xxx Xxxxxx
Xxxxxx, XX 00000
ABA #:
For credit to: Xxxxxxxxx Fund II Operating
Account #:
Reference: Xxxxxxx Pacific stock redemption
Blackacre:
75% of distribution:
Bank Name: Chase Manhattan Bank
ABA #
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Account Name: Continental Xxxxxxx Assoc., Inc.
As agent for Greenwich Capital
Lender to Blackacre Funding
Account#:
Attn: Xxxxx Xxxxxxx
25% of distribution:
Bank Name: CTC, New Jersey
ABA #:
Account Name: Cerberus Partners, L.P.
Account#
Attn: Xxxxx Xxxxxxx
1.4. CANCELLATION OF SHARES. Notwithstanding anything to the
contrary set forth in Section 15(c)(ii) of the Articles Supplementary or
otherwise, upon the full payment by the Company of the amounts set forth in
Section 1.1 above in accordance with Section 1.3 above, the Preferred
Stockholders will cease to be stockholders with respect to the Shares, will have
no interest in or claims against the Company by virtue of such Shares, and will
have no voting or other rights with respect to such Shares, and such Shares will
be deemed to be cancelled.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE PREFERRED STOCKHOLDERS.
Each of the Preferred Stockholders severally, and not jointly,
represents and warrants to the Company as follows:
2.1. AUTHORITY OF PREFERRED STOCKHOLDERS. The Preferred Stockholder
has full right, authority, power and capacity to enter into this Agreement and
to carry out the transactions contemplated hereby. This Agreement constitutes a
valid and binding obligation of the Preferred Stockholder, enforceable against
such Preferred Stockholder in accordance with its terms.
2.2. HOLDER STATUS. The Preferred Stockholder is (i) the "holder"
(as such term is used in Section 15(b) and Section 15(c) of the Articles
Supplementary) of the number of Shares set forth beside its name on Exhibit A
hereto and (ii) the only person entitled to receive any notices from the Company
concerning, or any payments to be made by the Company with respect to, such
Shares pursuant to the Articles Supplementary.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND BPOP
3.1. AUTHORITY OF THE COMPANY. The Company hereby represents and
warrants to the Preferred Stockholders that the Company has full right,
authority, power and capacity to enter into this Agreement and to carry out the
transactions contemplated hereby. This Agreement constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
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3.2. DIRECTORS AND OFFICERS INSURANCE. The Company hereby
represents and warrants to the Preferred Stockholders that the directors and
officers insurance described in the insurance binder attached hereto as Exhibit
B is in full force and effect as of the date hereof.
3.3. AUTHORITY OF BPOP. BPOP hereby represents and warrants to the
Preferred Stockholders that BPOP has full right, authority, power and capacity
to enter into this Agreement and to carry out the transactions contemplated
hereby. This Agreement constitutes a valid and binding obligation of BPOP,
enforceable against BPOP in accordance with its terms.
SECTION 4. RELEASE BY THE COMPANY AND BPOP.
For and in consideration of the covenants and promises set forth in
this Agreement and subject to the payment by the Company of (i) the amounts set
forth in Section 1.1 hereof in accordance with Section 1.3 hereof and (ii) the
amount referenced in Section 6.1(b) below, each of the Company and BPOP, on
behalf of itself and its assigns, representatives, agents, subsidiaries and
affiliates, hereby fully and finally releases, acquits and forever discharges
the Preferred Stockholders, their predecessors, successors and past or present
affiliates and subsidiaries, and each of their present and former stockholders
and the present and former officers, directors, partners, members, stockholders,
trustees, representatives, employees, principals, agents, affiliates,
subsidiaries, predecessors, successors, assigns, beneficiaries, insurers and
attorneys of any of them, including, without limitation, all affiliates of
Blackacre that contributed the Golden State Portfolio to BPOP (collectively, the
"Preferred Released Parties") from any and all actions, debts, claims,
counterclaims, demands, liabilities, damages, causes of action, costs and
expenses of every kind and nature whatsoever, in law or in equity, whether known
or unknown, which the Company or BPOP had, has, or may have had at any time in
the past until and including the date hereof against the Preferred Released
Parties, or any of them. Notwithstanding any other provision of this Agreement
to the contrary, this paragraph shall not apply to any and all actions, claims,
counterclaims, demands, liabilities, damages, causes of action, costs and
expenses arising out of or relating to the enforcement by the Company or BPOP of
their rights under the express terms of this Agreement. The Company and BPOP
agree not to institute, bring or make any litigation, lawsuit, claim or action
against any of the Preferred Release Parties with respect to any and all claims
released in this Agreement. Each of the Company and BPOP hereby represents and
warrants that it has adequate information regarding the terms of this Agreement,
the scope and effect of the releases set forth herein, and all other matters
encompassed by this Agreement to make an informed and knowledgeable decision
with regard to entering into this Agreement, and that it has consulted with
counsel and independently and without reliance upon the Preferred Release
Parties made its own analysis and decision to enter into this Agreement.
SECTION 5. RELEASE BY THE PREFERRED STOCKHOLDERS.
For and in consideration of the covenants and promises set forth in
this Agreement and subject to the payment by the Company of (i) the amounts set
forth in Section 1.1 hereof in accordance with Section 1.3 hereof and (ii) the
amount referenced in Section 6.1(b) below, each
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Preferred Stockholder, on behalf of itself and its assigns, representatives,
agents, subsidiaries and affiliates, hereby fully and finally releases, acquits
and forever discharges the Company, BPOP, their predecessors, successors and
past or present affiliates and subsidiaries, and each of their present and
former stockholders and the present and former officers, directors, partners,
members, stockholders, trustees, representatives, employees, principals, agents,
affiliates, subsidiaries, predecessors, successors, assigns, beneficiaries,
insurers and attorneys of any of them (collectively, the "BPP Released Parties")
from any and all actions, debts, claims, counterclaims, demands, liabilities,
damages, causes of action, costs and expenses of every kind and nature
whatsoever, in law or in equity, whether known or unknown, which the Preferred
Stockholder had, has, or may have had at any time in the past until and
including the date hereof against the BPP Released Parties, or any of them,
including, but not limited to, any claims which relate to or arise out of the
Preferred Stockholder's rights or status as a present or former stockholder of
the Company or as a present or former holder of units of limited partnership
interest in BPOP ("Units"), including, without limitation, any claims for
additional shares of any capital stock of the Company, additional Units or
additional payments or distributions from the Company or BPOP (except for any
such actions, debts, claims, counterclaims, demands, liabilities, damages,
causes of action, costs and expenses (a) relating to the Series 2000 Directors'
rights to indemnification, contribution or insurance in their capacity as
directors of the Company whether arising by contract or under applicable law or
(b) arising under Section 3(i) of the Original Exchange Agreement or Section
3(a) of the Letter Amendment). Notwithstanding any other provision of this
Agreement to the contrary, this paragraph shall not apply to any and all
actions, claims, counterclaims, demands, liabilities, damages, causes of action,
costs and expenses arising out of or relating to the enforcement by a Preferred
Stockholder of its rights under the express terms of this Agreement. The
Preferred Stockholders agree not to institute, bring or make any litigation,
lawsuit, claim or action against the Company, BPOP or any BPP Released Party
with respect to any and all claims released in this Agreement. Each of the
Preferred Stockholders hereby represents and warrants that it has adequate
information regarding the terms of this Agreement, the scope and effect of the
releases set forth herein, and all other matters encompassed by this Agreement
to make an informed and knowledgeable decision with regard to entering into this
Agreement, and that it has consulted with counsel and independently and without
reliance upon the BPP Released Parties made its own analysis and decision to
enter into this Agreement.
SECTION 6. ADDITIONAL AGREEMENTS.
6.1. EXCHANGE AGREEMENT. The parties hereto agree that upon (a)
payment by the Company of the amounts set forth in Section 1.1 hereof in
accordance with Section 1.3 hereof and (b) payment by the Company of $121,086
pursuant to Section 6.4 below in satisfaction of the Company's obligations under
Section 9 of the Original Exchange Agreement, the Exchange Agreement (excluding
the provisions of Section 3(a) of the Letter Amendment) and all of the
agreements entered into in connection therewith by the Company, BPOP and/or one
or more of their affiliates, on the one hand, and Xxxxxxxxx, Blackacre and/or
one or more of their affiliates, on the other hand, except for any
indemnification agreement between the Company and A. Xxxxxx Xxxxx or Xxx Xxxxxx,
shall terminate and shall have no further force and effect and none of the
parties to such agreements shall have any further rights or obligations
thereunder.
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6.2. STOCK PURCHASE AGREEMENTS. The parties hereto agree that, upon
payment by the Company of the amounts set forth in Section 1.1 hereof in
accordance with Section 1.3 hereof, the Stock Purchase Agreement, dated as of
December 5, 1997, by and among the Company, BPOP and the Preferred Stockholders,
and all of the agreements entered into in connection therewith by the Company,
BPOP and/or one or more of their affiliates, on the one hand, and Xxxxxxxxx,
Blackacre and/or one or more of their affiliates, on the other hand
(collectively, the "Stock Purchase Agreements"), except for any indemnification
agreement between the Company and A. Xxxxxx Xxxxx or Xxx Xxxxxx, shall terminate
and shall have no further force and effect and none of the parties to any of the
Stock Purchase Agreements shall have any further rights or obligations
thereunder.
6.3. INSURANCE. The Company and BPOP agree (a) to pay all premiums
in respect of any directors and officers insurance policy in effect on the date
hereof that benefits the Series 2000 Directors, if and to the extent such
premiums have not already been paid, (b) to perform all acts, if any, required
to be performed by the Company or BPOP in order to keep such policies in full
force and effect through the end of their applicable terms (as in effect on the
date hereof) and (c) to perform all acts, if any, required to be performed by
the Company or BPOP in order to assist the Series 2000 Directors in obtaining
the benefit of such policies pursuant to the terms thereof. The Company and BPOP
agree that neither of them shall cancel any such policy or perform any act that
would lead to the cancellation of such policies or that would deprive any Series
2000 Director of the benefit of such policies.
6.4. EXPENSE REIMBURSEMENT. The Company agrees to pay the amount
referred to in Section 6.1(b) above to the Preferred Stockholders simultaneously
with the payment of the Mandatory Redemption Price pursuant to Section 1 hereof.
Of such amount, $115,086 shall be paid to Cravath, Swaine & Xxxxx and $6,000
shall be paid to Proskauer Rose LLP, in each case by wire transfer in accordance
with the payment instructions set forth in each such firm's billing statement
that has previously been delivered to the Company.
6.5. HOLDER STATUS. Each of the Preferred Stockholders agrees,
severally and not jointly, that it shall remain (i) the "holder" (as such term
is used in Section 15(b) and Section 15(c) of the Articles Supplementary) of the
number of Shares set forth beside its name on Exhibit A hereto through and
including the redemption of the Shares pursuant to the terms hereof and (ii) the
only person entitled to receive any notices from the Company concerning, or any
payments to be made by the Company with respect to, such Shares pursuant to the
Articles Supplementary.
6.6. NOTICE UNDER THE ARTICLES SUPPLEMENTARY. The Preferred
Stockholders agree that any notice required to be delivered to Xxxxxxxxx Real
Estate Fund II, L.P. under the Articles Supplementary in connection with the
redemption of the Shares shall be deemed to have been delivered by virtue of the
execution and delivery of this Agreement.
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SECTION 7. MISCELLANEOUS.
7.1. AMENDMENT. This Agreement may be amended only by a written
instrument executed by all of the parties hereto.
7.2. SEVERABILITY. Any provision of this Agreement which is found
to be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
7.3. GOVERNING LAW. This Agreement shall be deemed to be a contract
under the laws of the State of Maryland and shall be construed and endorsed in
accordance with such laws, without regard to the doctrine of conflicts of laws.
7.4. CAPTIONS. The captions in this Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
7.5. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original but all of which together shall constitute one and the same instrument.
7.6. ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. This Agreement shall not be
assigned by any party hereto without the prior written consent of the other
parties.
7.7. CONSENT TO JURISDICTION. Each party hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the State of Maryland located within the City of
Baltimore, of the United States District Court for the District of Maryland
(Northern Division), and any Appellate Court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Maryland State, or, to the extent
permitted by law, in such federal, court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
hereto may otherwise have to bring any action or proceeding relating to this
Agreement in the courts of any jurisdiction.
7.8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein shall survive the execution and
delivery of this Agreement and the redemption of the Shares.
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7.9. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, including, without
limitation, specific performance to enforce this Agreement, in addition to any
other remedy at law or equity. The parties further agree to waive any
requirement for the posting of any bond in connection with any such remedy.
7.10. TERMINATION. This Agreement shall terminate and have no
further force and effect if the Redemption Date and the payment of the Mandatory
Redemption Price in respect of all Shares held by the Preferred Stockholders
does not occur on or prior to April 13, 2001.
[Remainder of page left blank intentionally.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
XXXXXXX PACIFIC PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
XXXXXXX PACIFIC OPERATING
PARTNERSHIP, L.P.
By: Xxxxxxx Pacific Properties, Inc.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
XXXXXXXXX XXXXXXX HOLDINGS, L.L.C.
By: /s/ X.X. Xxxxx
---------------------------------------------
Name: X.X. Xxxxx, authorized signatory
Title:
XXXXXXXXX XXXXXXX CO-HOLDINGS,
L.L.C.
By: /s/ X.X. Xxxxx
---------------------------------------------
Name: X.X. Xxxxx, authorized signatory
Title:
BLACKACRE SMC MASTER HOLDINGS, LLC
By: Blackacre SMC Holdings, L.P., its
managing member
By: Blackacre Capital Group, L.P.,
its general partner
By: Blackacre Capital Management
Corp., its general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name:
Title:
By: Blackacre SMC II Holdings, LLC, its
managing member
By: Blackacre Capital Group, L.P.,
its managing member
By: Blackacre Management Corp.,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name:
Title:
BLACKACRE FUNDING, LLC
By: Blackacre Funding Manager Corp., its
managing member
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name:
Title:
EXHIBIT A
STOCK OWNERSHIP
NAME OF SELLING STOCKHOLDER NUMBER OF SHARES
--------------------------- ----------------
Xxxxxxxxx Xxxxxxx Holdings, L.L.C. 2,495,538
Xxxxxxxxx Xxxxxxx Co-Holdings, L.L.C. 304,462
Blackacre SMC Master Holdings, LLC 400,000
Blackacre Funding LLC 1,200,000
---------
Total 4,400,000
