AGREEMENT
THIS AGREEMENT entered into this 14th day of October, 1997 by and between
TIGER SOUTH BRUNSWICK, L.L.C., a Delaware limited liability company ("TSB"),
TIGER/XXXXXXXXX REAL ESTATE FUND, L.P., a Delaware limited ("TWR"),
TIGER/XXXXXXXXX REAL ESTATE CO-INVESTMENT PARTNERSHIP, L.P., a Delaware limited
("TWRCO") and Xxx X. Xxxxxxx ("Xxxxxxx") and Xxxx X. Xxxxxx, III ("Xxxxxx").
TSR, TWR and TWRCO are hereinafter collectively referred to as "Xxxxxxxxx," and
Xxxxxxx and Xxxxxx are hereinafter collectively referred to as "S&H."
Xxxxxxxxx and S&H, or entities affiliated with one or more of them, have
this date conveyed their general and limited partnership interests in South
Brunswick Investors, L.P. ("SBILP") to FCO, L.P., a newly formed Delaware
limited partnership ("FCLP"). As consideration for the transfer of the SBILP
partnership interests conveyed by Xxxxxxxxx, Xxxxxxxxx has received an aggregate
of approximately 372,794 common units of partnership interest in FCLP ("Common
Units") and approximately 245,714 preferred units of partnership interest in
FCLP ("Preferred Units"). The Common Units and the Preferred Units are
collectively referred to herein as the "Units."
FCLP is expected, although there can be no assurance or guarantee, to pay
quarterly distributions in the nature of dividends to the holders of its Common
Units and Preferred Units ("Dividends"). The aggregate Dividends expected to be
paid to Xxxxxxxxx with respect To the Units is in the amounts and on the dates
as set forth on Exhibit A hereto. Such Dividends are hereinafter referred to
collectively as the "Xxxxxxxxx Dividends," and individually as a "Xxxxxxxxx
Dividend."
S&H have agreed with Xxxxxxxxx that S&H will, at Xxxxxxxxx'x sole option,
purchase the Units from Xxxxxxxxx under certain circumstances.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Option and Obligation. Xxxxxxxxx shall have the Option to sell to S&H
all, but not less than all, the Units. in accordance with the terms and
conditions set forth in this Agreement (the "Option"). The obligation of S&H to
purchase the Units upon exercise of the Option shall be the joint and several
obligation of each of Xxxxxxx and Xxxxxx. The total purchase price payable for
the Units upon exercise of the Option is $3,481,579 (the "Purchase Price").
2. Exercise of Option. The Option may be exercised by Xxxxxxxxx either: (i)
within ten (10) business days after the date on which FCLP fails to make a
Dividend payment to Xxxxxxxxx as set forth on Exhibit A attached hereto, or (ii)
at any time between October 15 , 1999 and December 15, 1999. If not exercised,
the Option shall expire at the close of business on December 15, 1999, and this
Agreement shall be of no further force and effect from and after such date.
3. Method of Exercise. To exercise the Option, Xxxxxxxxx shall give notice
to each of Xxxxxxx and Xxxxxx of its election to do so (the "Notice") within the
times described in Section 2 above. The Notice shall be in writing, shall be
signed by an authorized person from each of TSH, TWR and TWRCO, and either (i)
personally delivered (with receipt acknowledged), or (ii) sent by registered or
certified mail, return receipt requested, postage prepaid, addressed to Xxxxxxx
at The Xxxxxxx Group, 000 Xxxxxxxx Xxxxxx, Xxxxx
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0000, Xxxxxxxx, Hawaii, and to Xxxxxx at The Xxxxxxx Group, Xxxxx 0000, Xxx
Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000. The Notice shall be deemed
given when received by each of Xxxxxxx and Xxxxxx.
4. Closing. Closing on the exercise of the Option (the "Closing") shall be
at such address, on such date no more than sixty (60) days after the date on
which Notice is given and at such time during normal business hours as shall be
designated by S&H pursuant to a written notification to be sent by S&H via
personal delivery (with receipt acknowledged), or by registered or certified
mail, return receipt requested, postage prepaid to Xxxxxxx Xxx, Xxxxxxxxx
Partners, LLC, 13155 Xxxx Road-LB 54, Xxxxx 0000, Xxxxxx, Xxxxx 00000.
5. Deliveries and Payment at Closing. At Closing,
(a) S&H shall pay the Purchase Price (allocated among TSE, TWR and TWRCO as
they shall jointly direct in the Notice) in full in cash, by bank check or by
wire transfer;
(b) Xxxxxxxxx shall deliver to S&H certificates evidencing the Units, duly
endorsed for transfer, or, if the Units are not certificated, an such
assignments, consents and other instruments or documents as may be necessary to
convey unencumbered title to the Units to S&H. The Units purchased by S&H shall
be allocated between them in such manner as they shall direct in the
notification of Closing delivered pursuant to Section 4 above.
(c) Each of TSB, TWR and TWRCO shall deliver to S&H such certificates or
other documents as S&H shall reasonably require, to evidence the due
authorization of TSB, TWR and TWRCO to transfer the Units; and
(d) Xxxxxxxxx shall deliver or cause to be delivered to S&H an opinion of
counsel addressed to S&H to the effect that the transfer of the Units by
Xxxxxxxxx (i) has been duly authorized by each of TSB, TWR and TWRCO and (ii) is
exempt from the registration requirements of the Securities Act of 1933, as
amended, and the securities laws of the states, or that appropriate
registration(s) under such laws has/have been effected.
6. Assignment and Binding Effect. This Agreement may not be assigned
Xxxxxxxxx without the written consent of both Xxxxxxx and Xxxxxx, except that it
may be assigned to an affiliate of Xxxxxxxxx to the same extent as such
affiliate is the assignee of Units. This Agreement may be not be assigned by
either Xxxxxxx or Xxxxxx without the written consent of each of TSB, TWR and
TWRCO. The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective personal representatives
heirs, successors and permitted assigns.
7. Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by, and shall be construed and enforced in
accordance with, the internal laws of the State of New York, without regard to
conflicts of laws principles. except as set forth below. The parties acknowledge
that New York has substantial relationship to the underlying transactions
related to this agreement and to the parties involved.
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8. Consent to Jurisdiction and Service of Process.
All judicial proceedings brought against the parties arising out of or
relating to this Agreement may be brought in any state or federal court of
competent jurisdiction in the State, County and City of New York. By executing
and delivering this agreement, each party irrevocably:
(i) accepts generally and unconditionally the nonexclusive
jurisdiction and venue of such courts;
(ii) waives any defense of forum non conveniens;
(iii) agrees that service of all process in any such proceeding in any
such court may be made by registered or certified mail. return receipt
requested, to borrower at its address set forth in that certain Agreement
of Limited Partnership of South Brunswick Land , L.P. dated of even date;
and
(iv) agrees that service as provided in clause (iii) above is
sufficient to confer personal jurisdiction over such party in any such
proceeding in any such court, and otherwise constitutes effective and
binding service in every respect.
9. Counterparts. This Agreement may be executed by facsimile signatures and
in any number of counterparts, all of which, when taken together, shall
constitute one and the same instrument.
10. Further Assurance. It is understood that Xxxxxxxxx is looking to its
counsel, Cadwalader, Xxxxxxxxxx & Xxxx ("CWT"), to opine to Xxxxxxxxx that the
obligations of S&H hereunder are enforceable under the laws of New York State.
CWT shall complete its review of this Agreement promptly after the date hereof.
It is S&H's intention that their obligations hereunder be enforceable, and S&H
agree to make such amendments to this Agreement as may be reasonably necessary,
in the legal opinion of CWT, to render S&H's obligations hereunder enforceable
under the laws of New York State.
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IN WITNESS WHEREOF, intending to be legally bound, the undersigned have
executed this Agreement as of the day and date first above written.
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Xxx X. Xxxxxxx
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Xxxx X. Xxxxxx, III
TIGER SOUTH BRUNSWICK, L. L.C., a Delaware
limited liability company, by its managing
members Xxxxxxxxx Real Estate Fund I. L.P., a
Delaware limited partnership, and Xxxxxxxxx Real
Estate Co-Investment Partnership I, L.P., a
Delaware limited partnership, by their general
partner Xxxxxxxxx Real Estate Partners
Management, L.L.C., by its sole managing member
Xxxxxxxxx Real Estate Partners, L.L.C.
By:
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TIGER/XXXXXXXXX REAL ESTATE FUND I, L.P., a
Delaware limited partnership, by its general
partner Xxxxxxxxx Real Esstate Partners
Management I, L.L.C., by its sole managing member
Xxxxxxxxx Real Estate Partners, L.L.C.
By:
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TIGER/XXXXXXXXX REAL ESTATE CO-INVESTMENT
PARTNERSHIP I, L.P., a Delaware limited
partnership. by its general partner Xxxxxxxxx
Real Estate Partners Management I, L.L.C., by its
sole managing member Xxxxxxxxx Real Estate
Partners, L.L.C.
By:
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EXHIBIT A
SCHEDULED DIVIDENDS
Dividend on 245,714 Dividend an 372,294
Preferred Units Common Units
Quarter Ending @ 1.625 Annual Rate @ $.50 Annual Rate
-------------- ------------------- ------------------
12/31/971 $85,716 $46,536
3/31/98 99,821 46,536
6/30/98 99,821 46,536
9/20/98 99,821 46,536
12/31/98 99,821 46,536
3/31/99 99,821 46,536
6/30/99 99,821 46,536
9/30/99 99,821 46,536
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1 12/31/97 Dividend on Preferred Units assumes a closing of 10/14/97 and a
proration of the dividend for 79 days over a 92-day period.
To: Tiger South Btunswick, L.L.C.
tiger/Xxxxxxxxx Real Estate Fund, L.P.
Tiger/Westhrook Real Estate Co-Investment Partnership, L.P.
The above are collectively referred to as the "TW Parties".
The undersigned Royale Investments, Inc., a Minnesota corporation
("Royale") and FCO, L.P., a Delaware limited partnership ("FCO"), hereby confirm
that neither Royale nor FCO shall have any claim against any of the TW Parties
on account of a breach or misrepresentation by South Brunswick Investment
Company, LLC, a New Jersey limited partnership ("SBIC") of any representation or
warranty made by SBIC in Section 10 of that certain Formation/Contribution
Agreement dated as of September 7, 1997 by and among SBIC, Royale and others
(the "Formation Agreement").
Royale and FCO hereby release each of the TW Parties from and against any
claims either or both Royale and FCO may have on account of any breach or
misrepresentation of any representation or warranty made by SBIC in Section 10
of the Formation Agreement.
For good and valuable consideration, the receipt of which is hereby
acknowledged, Royale and FCO have executed this letter agreement this 14th day
of October, 1997.
ROYALE INVESTNMENTS, INC.
By:
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FCO, L.P.
By: Royale Investments, Inc., its
General Partner
By:
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