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EXHIBIT 10.1
MASTER SEPARATION AGREEMENT
MASTER SEPARATION AGREEMENT, dated as of April 21, 1999 (this
"Agreement"), by and among New Plan Excel Realty Trust, Inc., a Maryland
corporation ("New Plan"), ERT Development Corporation, a Delaware corporation of
which New Plan owns 100% of the outstanding preferred shares ("EDV"), and Excel
Legacy Corporation, a Delaware corporation ("Legacy"). New Plan, EDV and Legacy
are each referred to herein sometimes as a "Party" and collectively as the
"Parties".
WHEREAS, the Parties have previously entered into that certain
Distribution Agreement, dated as of March 31, 1998 (the "Distribution
Agreement"), providing for, among other things, the terms and conditions
pursuant to which Excel Realty Trust, Inc. (the predecessor to New Plan, "ERT")
distributed the outstanding shares of Legacy to ERT's stockholders as of the
record date for such distribution (the "Spin-off").
WHEREAS, in connection with the Spin-off, ERT and Legacy entered
into the following agreements: (i) Administrative Services Agreement, dated as
of March 31, 1998, as amended by the Amendment to Administrative Services
Agreement, dated as of May 14, 1998 (the "Administrative Services Agreement");
(ii) Tax Sharing Agreement, dated as of March 31, 1998 (the "Tax Sharing
Agreement"); and (iii) Intercompany Agreement, dated as of March 31, 1998, as
amended by the Amendment to Intercompany Agreement, dated as of May 14, 1998
(the "Intercompany Agreement").
WHEREAS, in connection with the execution and delivery of this
Agreement, certain directors of New Plan shall resign (the "Resignations") and
certain executive officers shall resign and enter into respective Resignation
and Release Agreements with New Plan (collectively, the "Resignation and Release
Agreements").
WHEREAS, in connection with the execution and delivery of this
Agreement, NNRA, LLC ("NNRA"), EDV and Excel Interfinancial Corporation
("Interfinancial"), will enter into a Stock Purchase Agreement (the "Stock
Purchase Agreement"), pursuant to which, among other things, NNRA shall purchase
the common stock of EDV owned by Interfinancial.
WHEREAS, the parties desire to amend their existing relationships
as set forth herein.
NOW THEREFORE, in consideration of the above premises and mutual
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
intending to be legally bound, and subject to the terms and conditions stated
herein, the Parties hereby agree as follows:
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ARTICLE I
COVENANTS
SECTION 1.1. Intercompany Agreement. The parties hereby agree
that notwithstanding anything in the Intercompany Agreement to the contrary,
but subject to the following proviso, the Intercompany Agreement shall
terminate and be of no further force and effect simultaneously with the
execution and delivery hereof; provided, however, that with respect to all REIT
Opportunities (as defined in the Intercompany Agreement) that have been
presented to a meeting of the New Plan Investment Committee prior to the date
hereof, whether or not the New Plan Investment Committee elected to proceed with
the REIT Opportunity at such time or thereafter (collectively, but excluding the
entity known to New Plan and Legacy as "Nuts", the "New Plan Exclusive REIT
Opportunities"), neither Legacy nor any of its subsidiaries or affiliates, or
any of their respective directors, officers, employees or agents, shall,
directly or indirectly, pursue or enter into negotiations with respect to any
New Plan Exclusive REIT Opportunity or enter into any letter of intent,
agreement in principle, or acquisition or other similar binding agreement to
acquire or participate in all or a portion of such New Plan Exclusive REIT
Opportunity, or otherwise take any action that could result in any of the
foregoing as to any New Plan Exclusive REIT Opportunity. New Plan further agrees
that neither it nor any of its subsidiaries or affiliates, or any of their
respective directors, officers, employees or agents, shall, directly or
indirectly, (i) pursue or enter into negotiations with respect to the
transaction relating to the San Diego Naval Base that has been considered by New
Plan and Legacy, or enter into any letter of intent, agreement in principle, or
acquisition or other similar binding agreement to acquire or participate in all
or a portion of such transaction by New Plan, or otherwise take any action that
could result in any of the foregoing as to such transaction, unless in
partnership or other business relationship with Legacy on an agreed basis, or
(ii) raise any objection to Legacy entering into any letter of intent, agreement
in principle, or acquisition or other similar binding agreement with that entity
known to New Plan and Legacy as "Nuts".
SECTION 1.2. Administrative Services Agreement. The Parties
hereby agree that upon consummation of this Agreement the Administrative
Services Agreement shall terminate and, thereafter shall have no further force
and effect; provided, however, that, notwithstanding anything contained herein
to the contrary, with respect to the Administrative Services Agreement, Legacy
shall promptly, upon receipt of an invoice from New Plan, pay any portion of the
payments and/or other amounts due to New Plan and accrued through the date
hereof, whether for services, salaries or otherwise.
SECTION 1.3. Airplane Interest. (a) New Plan hereby sells,
assigns, conveys, transfers, delivers and confirms to Legacy all of its rights,
title and interest in and to that certain 1/16th fractional interest in an
airplane, acquired and governed by that certain agreement dated as of March 6,
1998, between Executive Jet Sales, Inc. and Excel Realty Trust, Inc. (the
"Airplane Interest"), in exchange for Legacy's agreement to pay to New Plan the
fair market value of the Airplane Interest (up to $250,000, and provided that if
Legacy shall at any time hereafter sell, assign or transfer the Airplane
Interest to any third party for
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consideration in excess of the amount paid to New Plan pursuant to this
paragraph, Legacy shall promptly pay over to New Plan an amount equal to such
excess), together with the amount of any prepayments, deposits or security
previously paid in respect of the Airplane Interest (the "Airplane Interest
Value"), all of which shall be due and payable on or before the date that is 30
days from the date hereof.
(b) Legacy hereby purchases and acquires the Airplane Interest,
and assumes all of the obligations and liabilities arising from or relating to
the Airplane Interest, on and after the date hereof, and Legacy shall indemnify,
hold harmless and defend New Plan from and against any and all liabilities,
obligations, claims or expenses of whatever kind resulting from or relating to
the Airplane Interest.
SECTION 1.4. Deliveries. (a) At or prior to the execution of this
Agreement, Legacy shall deliver, or shall cause to be delivered, to New Plan the
following:
(i) The Stock Purchase Agreement, executed by
Interfinancial and EDV;
(ii) The Resignation and Release Agreements, signed by each
of the executive officers set forth on Schedule 1.4;
(iii) The Resignations, in the form of Exhibit A hereto, of
each of the directors set forth on Schedule 1.4, signed by such persons;
and
(iv) The Assignment Agreement (as defined in Section 4.2),
signed by Legacy.
(b) At or prior to the execution of this Agreement, New Plan
shall deliver, or shall cause to be delivered, to Legacy the following:
(i) The Stock Purchase Agreement, executed by NNRA;
(ii) The Resignation and Release Agreements, signed by New
Plan; and
(iii) The Assignment Agreement, signed by New Plan.
SECTION 1.5. Public Announcements. The Parties shall not make, or
cause to be made, any press releases or public announcements in respect of this
Agreement or the transactions contemplated hereby without prior notification of
the other, and the parties shall cooperate as to the timing and content of any
such announcement.
ARTICLE II
STANDSTILL AGREEMENT
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SECTION 2.1. Legacy Standstill. (a) Legacy (including its
affiliates and any "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934 (the "Exchange Act")) in which it or any of its
affiliates is a member) shall not directly or indirectly acquire beneficial
ownership or control of any equity securities of New Plan, nor shall Legacy or
any of its affiliates or any group in which it or any of its affiliates is a
member directly or indirectly acquire beneficial ownership or control of any
equity securities of any affiliate of New Plan.
(b) Legacy and its affiliates will not, directly or indirectly,
acting alone or in concert with others, unless specifically requested in writing
in advance by the Board of Directors of New Plan: (a) in any manner acquire or
agree, attempt, seek or propose to acquire (or make any request for permission
with respect thereto), by purchase, merger, through the acquisition of control
of another person, by joining a partnership, limited partnership, syndicate or
other group, or otherwise, ownership (including, but not limited to, beneficial
ownership as defined in Rule 13d-3 under the Exchange Act) of any of the assets
or businesses of New Plan or any securities issued by New Plan, or any rights or
options to acquire such ownership (including from a third party), (b) make, or
in any way cause or participate in, any "solicitation" of "proxies" to vote (as
such terms are defined in Regulation 14A under the Exchange Act), or communicate
with, seek to advise, encourage or influence any person or entity, in any
manner, with respect to the voting of, any voting securities of New Plan, or
become a "participant" in any "election contest" (as such terms are defined or
used in Rule 14a-11 promulgated under the Exchange Act) with respect to New
Plan, or execute any written consent with respect to New Plan, (c) make or cause
to be made any proposal for the acquisition of New Plan or any assets or
securities thereof or for any extraordinary transaction involving New Plan,
including any merger, or other business combination, restructuring,
recapitalization, liquidation or similar transaction, (d) initiate, propose or
otherwise solicit stockholders for the approval of one or more stockholder
proposals with respect to New Plan or induce or attempt to induce any other
person to initiate any stockholder proposal, or seek election to or seek to
place a representative on the Board of Directors of New Plan or seek the removal
of any member of the Board of Directors of New Plan, (e) form, join or in any
way participate in a "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) with respect to any voting securities of New Plan, (f) otherwise
act, alone or in concert with others, to seek to control or influence the
management, the Board of Directors or the policies of New Plan, (g) disclose any
intention, plan or arrangement, or make any public announcement inconsistent
with the foregoing, (h) advise, assist or encourage or finance (or assist or
arrange financing to or for) any other person in connection with any of the
foregoing, (i) enter into any discussions, negotiations, arrangements or
understandings with any other person in connection with any of the foregoing, or
(j) request a waiver of any of the foregoing.
SECTION 2.2. New Plan Standstill. (a) New Plan (including its
affiliates and any group in which it or any of its affiliates is a member) shall
not directly or indirectly acquire beneficial ownership or control of any equity
securities of Legacy, nor shall New Plan or any of its affiliates or any group
in which it or any of its affiliates is a member directly or
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indirectly acquire beneficial ownership or control of any equity securities of
any affiliate of Legacy.
(b) New Plan and its affiliates will not, directly or indirectly,
acting alone or in concert with others, unless specifically requested in writing
in advance by the Board of Directors of Legacy: (a) in any manner acquire or
agree, attempt, seek or propose to acquire (or make any request for permission
with respect thereto), by purchase, merger, through the acquisition of control
of another person, by joining a partnership, limited partnership, syndicate or
other group, or otherwise, ownership (including, but not limited to, beneficial
ownership as defined in Rule 13d-3 under the Exchange Act) of any of the assets
or businesses of Legacy or any securities issued by Legacy, or any rights or
options to acquire such ownership (including from a third party), (b) make, or
in any way cause or participate in, any "solicitation" of "proxies" to vote (as
such terms are defined in Regulation 14A under the Exchange Act), or communicate
with, seek to advise, encourage or influence any person or entity, in any
manner, with respect to the voting of, any voting securities of Legacy, or
become a "participant" in any "election contest" (as such terms are defined or
used in Rule 14a-11 promulgated under the Exchange Act) with respect to Legacy,
or execute any written consent with respect to Legacy, (c) make or cause to be
made any proposal for the acquisition of Legacy or any assets or securities
thereof or for any extraordinary transaction involving Legacy, including any
merger, or other business combination, restructuring, recapitalization,
liquidation or similar transaction, (d) initiate, propose or otherwise solicit
stockholders for the approval of one or more stockholder proposals with respect
to Legacy or induce or attempt to induce any other person to initiate any
stockholder proposal, or seek election to or seek to place a representative on
the Board of Directors of Legacy or seek the removal of any member of the Board
of Directors of Legacy, (e) form, join or in any way participate in a group
(within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any
voting securities of Legacy, (f) otherwise act, alone or in concert with others,
to seek to control or influence the management, the Board of Directors or the
policies of Legacy, (g) disclose any intention, plan or arrangement, or make
any public announcement inconsistent with the foregoing, (h) advise, assist or
encourage or finance (or assist or arrange financing to or for) any other person
in connection with any of the foregoing, (i) enter into any discussions,
negotiations, arrangements or understandings with any other person in
connection with any of the foregoing, or (j) request a waiver of any of the
foregoing.
ARTICLE III
DISPARAGING COMMENTS
SECTION 3.1. Disparaging Comments. From and after the date of
this Agreement, except as may be required by a court or governmental body, each
of New Plan and Legacy shall, and shall cause each of its subsidiaries and
affliates, and use its reasonable efforts to cause each of its directors,
officers and employees, to, refrain from taking actions or making statements,
written or oral, which disparage or defame the goodwill or reputation of
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the other Party and its subsidiaries, affiliates, security holders, partners,
agents and former and current directors, officers and employees or which are
intended to, or may be reasonably expected to, adversely affect the morale of
the employees of such Party, its subsidiaries or its affiliates. Each of New
Plan and Legacy shall, and shall cause their respective subsidiaries and
affiliates to, take reason-able steps to advise actively employed executive
officers of such Party and its subsidiaries and affiliates, and members of their
respective boards of directors, not to disparage or defame the reputation of
such other Party.
ARTICLE IV
REAL PROPERTY MATTERS
SECTION 4.1. Rancho Xxxxxxxx. (a) New Plan, as landlord, and
Legacy, as tenant, hereby covenant and agree that certain of the space in the
building owned by New Plan and located at 00000 Xxx Xxx Xxxxx, Xxxxxx Xxxxxxxx,
Xxxxxxxxxx (the "Building"), which space shall be mutually agreed upon by New
Plan and Legacy (the "Demised Premises"), shall be leased by New Plan to Legacy
in accordance with the terms and conditions set forth on Exhibit B hereto.
(b) The existing space lease between New Plan and Legacy, dated
as of June 24, 1998, with respect to approximately 892 rentable square feet in
the Building shall remain in full force and effect in accordance with its terms.
SECTION 4.2. Excel Properties Ltd. (a) Pursuant to the Assignment
and Assumption Agreement attached hereto as Exhibit C (the "Assignment
Agreement"), New Plan shall, as of the date hereof, assign all of its right,
title and interest as a general partner of Excel Properties, Ltd., a California
limited partnership (the "Partnership Interest"), to Legacy or its designee, and
Legacy (or such designee) shall assume all of New Plan's obligations and
liabilities with respect to the Partnership Interest.
(b) To the extent the assignment contemplated in Section 4.2(a)
shall require the consent or waiver of any other party, neither this Agreement
nor the Assignment Agreement shall constitute an agreement to assign such
Partnership Interest without such consent or waiver. If any such required
consent or waiver is not obtained, Legacy and New Plan shall, at Legacy's
expense, cooperate in any reasonable arrangement requested by Legacy or New Plan
and designed to provide Legacy with the benefit of the Partnership Interest
(and all associated obligations or liabilities), including New Plan acting as
Legacy's agent in order to obtain for Legacy the benefits therefor.
Notwithstanding any such consents or assignment, Legacy agrees to indemnify,
hold harmless and defend New Plan from and against any and all liabilities,
obligations, claims or expenses of whatever kind resulting from or related to
the Partnership Interest and the assignment and arrangements contemplated by
this Section and the Assignment Agreement.
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SECTION 4.3. New Legacy Building. (a) Legacy agrees to sublease,
as subtenant, from New Plan, as sublandlord, on identical terms to those set
forth in the New Building Lease (as hereinafter defined), all of the space at
those certain premises at the building owned (or to be constructed) by Legacy
and located at Xxxxxxxx Center Drive, San Diego, California (the "New Legacy
Building") and which New Plan, as tenant, has agreed to lease from Legacy, as
landlord, pursuant to a lease, license or other occupancy agreement between them
as tenant and landlord (the "New Building Lease"). Legacy, as the lessor under
the New Building Lease, further agrees (i) to waive any and all defaults, events
of default or breaches under such New Building Lease, as such may arise, from
time to time, thereunder, and (ii) to indemnify, hold harmless and defend New
Plan from and against any and all liabilities, obligations, claims or expenses
of whatever kind resulting from or related to the New Building Lease. Promptly
after the date hereof, the parties shall enter into a sublease reflecting the
provisions of this Section 4.3.
(b) Legacy and New Plan agree that, at such time as the
termination of the New Building Lease would not result in a breach or default
under the construction financing for the New Legacy Building, the New Building
Lease and the sublease entered into in paragraph (a) above shall then terminate
and be null, void and of no further force or effect. In addition, Legacy further
agrees that it shall not include, make reference to, rely on or cause any other
party to rely on the existence or continuation of the New Building Lease in
connection with Legacy's procurement of financing for the New Legacy Building
(other than the construction financing existing as of the date hereof).
ARTICLE V
EMPLOYEE MATTERS
SECTION 5.1. Former Excel Employees. Each individual who is
employed as of the date of this Agreement by New Plan at its Rancho Xxxxxxxx or
Salt Lake City locations and who agrees to remain employed by New Plan following
the transactions contemplated hereby (each such individual, a "Covered
Employee") but who is terminated by New Plan within 180 days after the date of
this Agreement other than for cause shall be entitled to severance pay (the
"Severance Pay") equal to one week's base pay for each full Year of Service (as
defined below) completed by such individual; provided that this obligation shall
not apply to any of the employees listed on Schedule 5.1, none of whom shall be
Covered Employees, nor to any Covered Employee who subsequently becomes an
employee of Legacy or any of its affiliates or subsidiaries. For purposes of
this Section 5.1, the term "Year of Service" means a period of 12 months of
continuous employment with New Plan and/or any predecessor entities.
SECTION 5.2. Non-Solicitation of Employees. (a) For a period
commencing on the date hereof and continuing through the 90-day period
thereafter, Legacy may offer em-
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ployment only to any of the New Plan employees listed on Schedule 5.1, and,
during such period, neither Legacy nor any of its subsidiaries or affiliates,
nor any of their respective directors, officers, employees or agents, shall,
directly or indirectly, solicit or induce any other person who is an employee of
New Plan as of the date hereof to become an employee or consultant of Legacy or
any of its affiliates or subsidiaries or to leave the employ of New Plan.
(b) For purposes of this Section 5.2, the term "employment" shall
include rendering services in any capacity, and the term "employee" shall
include any individual who is rendering services, in each case whether as an
employee, officer, director, agent, consultant or independent contractor or
otherwise.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Notices. Any notice or other communication required
or permitted hereunder shall be in writing and shall be delivered personally,
or sent by facsimile transmission or sent by certified, registered or express
mail, postage prepaid. any such notice shall be deemed given when so delivered
personally, or sent by facsimile transmission or, if mailed, three (3) business
days after the date of deposit in the United States mail, by certified mail
return receipt requested (if also sent by facsimile if available at the office
of the recipient), as follows:
If to Legacy, to:
Excel Legacy Corporation
00000 Xxx Xxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: S. Xxxx Xxxxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 X Xxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
If to New Plan or EDV, to:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
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New York, New York 10036
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
Any Party, by notice given in accordance with this Section 6.1 to
the other Parties, may designate another address or person for receipt of
notices hereunder.
SECTION 6.2. Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies. This Agreement may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived only by a written
instrument signed by the Parties or in the case of a waiver, by the Party
waiving compliance. No delay on the part of any Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof except as
expressly provided herein. No waiver on the part of any Party of any right,
power or privilege, nor any single or partial exercise of any such right, power
or privilege, shall preclude any further exercise thereof or the exercise of any
other such right, power or privilege. The rights and remedies herein provided
are cumulative and are not exclusive of any rights or remedies that any party
may otherwise have at law or in equity.
SECTION 6.3. Governing Law; Enforcement. (a) This Agreement shall
be governed by and construed in accordance with the substantive and procedural
laws of the State of New York applicable to agreements made and to be performed
entirely within such State (without giving effect to any conflict of laws
principles which might require application of the law of a different
jurisdiction).
(b) Each of the Parties hereto (i) consents to submit itself to
the personal jurisdiction of any federal court located in the State of New York
or any New York State court in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement, (ii) agrees
that it shall not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, and (iii) agrees that it shall
not bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a federal court sitting
in the State of New York or a New York State court.
SECTION 6.4. Further Assurances. In addition to the covenants and
agreements provided for in this Agreement, after the date hereof, each Party
shall, and shall cause its affiliates to, from time to time, at the request of
any other Party and without further cost or expense to such requesting Party,
execute and deliver such other documents,
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instruments or agreements as are necessary or advisable to carry out the
transactions contemplated by this Agreement.
SECTION 6.5. Binding Effect; No Assignment; No Third Party
Beneficiaries. Except as expressly provided herein, neither this Agreement, nor
any right hereunder, may be assigned by any Party without the written consent of
the other Parties. Any assignment or attempted assignment in violation of the
foregoing shall be void. This Agreement shall be binding upon and inure solely
to the benefit of the Parties hereto and their permitted successors and assigns
and nothing in this Agreement, express or implied, is intended to confer upon
any other person any rights or remedies of any nature whatsoever under or by
reason of this Agreement.
SECTION 6.6. Counterparts. This Agreement may be executed by the
Parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the Parties.
SECTION 6.7. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 6.8. Severability. If any term or other provision of this
Agreement shall be deemed invalid, illegal or unenforceable, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
Party. Upon a determination that any term or other provision is invalid, illegal
or unenforceable, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as
possible in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the maximum extent possible.
SECTION 6.9. Survival. All representations, warranties, covenants
and agreements of the parties shall survive the consummation of the
transactions contemplated by this Agreement.
SECTION 6.10. Entire Agreement. This Agreement, the Stock
Purchase Agreement, the Termination and Release Agreements, the Resignations and
the other instruments or agreements entered into in connection with this
Agreement or the transactions contemplated hereby constitute the entire
agreement between the Parties hereto and supersede all prior agreements and
understandings, both written and oral, among the Parties with respect to the
subject matter hereof; provided, however, that nothing herein shall relieve any
Party hereto of any obligation or liability to any other Party hereto, or
otherwise modify, amend or vary any such obligation or liability, other than as
expressly provided herein.
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SECTION 6.11. Definitions. As used in this Agreement, the
following terms shall have the meanings set forth below:
(a) "Affiliate" or "affiliates", as applied to any Person, shall
mean any other Person directly or indirectly controlling, controlled by, or
under common control with that Person. For the purposes of this definition,
"control" (including with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that person, whether through the
ownership of voting securities or by contract or otherwise.
(b) "Beneficially own" and "beneficial ownership" have the
meanings given to these terms in Rule 13d-3 of the Rules and Regulations of the
Securities and Exchange Commission under the Exchange Act, as in effect on the
date hereof.
(c) "Person" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, associations, companies, trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions thereof.
SECTION 6.12. Interpretation; Absence of Presumption. As used in
this Agreement, the following terms shall have the meanings set forth below:
(a) For the purposes hereof, (i) words in the singular shall be
held to include the plural and vice versa and words of one gender shall be held
to include the other genders as the context requires, (ii) the terms "hereof",
"herein", and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole (including all of the
Schedules and Exhibits hereto) and not to any particular provision of this
Agreement, and Article, Section, paragraph, Exhibit and Schedule references are
to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement
unless otherwise specified, (iii) the word "including" and words of similar
import when used in this Agreement shall mean "including, without limitation,"
unless the context otherwise requires or unless otherwise specified, (iv) the
word "or" shall not be exclusive, and (v) provisions shall apply, when
appropriate,to successive events and transactions.
(b) This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted.
SECTION 6.13. Expenses. Unless otherwise indicated in this
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby, including fees and disbursements of
counsel, financial advisors and accountants, shall be paid by the party
incurring such costs and expenses.
SECTION 6.14. Specific Enforcement. The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement
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were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that, subject to Section 6.3, the Parties
shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any State having jurisdiction, this being in
addition to any remedy to which they are entitled at law or in equity.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
to be duly executed on the date first above written.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
ERT DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
EXCEL LEGACY CORPORATION
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman, President and Chief
Executive Officer
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EXHIBIT A TO MASTER SEPARATION AGREEMENT
[FORM OF RESIGNATION]
April 21, 1999
Board of Directors
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
I hereby resign as a Director of New Plan Excel Realty Trust, Inc. ("New Plan")
and from any other office or position I may hold as a Director or otherwise with
New Plan, New Plan Realty Trust, or any of their respective subsidiaries or
affiliates, effective upon acceptance hereof by the Board of Directors, and
after the execution and delivery of the Master Separation Agreement, dated as of
the date hereof, among New Plan, ERT Development Corporation ("EDV") and Excel
Legacy Corporation (the "Master Separation Agreement") and the consummation of
the Closing, as defined in the Stock Purchase Agreement, dated as of the date
hereof, among NNRA, LLC, EDV and Excel Interfinancial Corporation.
---------------------------------------
Name:
14
EXHIBIT B TO MASTER SEPARATION AGREEMENT
TERMS AND CONDITIONS OF SPACE LEASE
1. The term of this Lease shall commence on the date hereof and
shall continue month-to-month at the option of Legacy (based upon calendar
months), but in no event shall the term of this Lease extend beyond May 31,
2000.
2. The rent payable under this Lease shall be $1.75 per rentable
square foot per month. Rent is to be paid by Legacy monthly in advance on the
first day of each calendar month during the term hereof, at the main office of
New Plan or as may be otherwise directed by New Plan in writing. In addition,
Legacy agrees to pay as invoiced any operating expenses and real estate taxes
for the Building on a pro rata basis, based on the relative square footage of
the Demised Premises to the Building.
3. Legacy shall use the Demised Premises for office purposes
only.
4. This Lease includes all equipment and furniture located in the
Demised Premises as of the date hereof, and Legacy shall have the option, at the
expiration of this Lease, to acquire, at a price to be mutually agreed between
New Plan and Legacy, all equipment and furniture located in the Demised Premises
and not required by New Plan for the conduct of its business.
5. Legacy shall not sublet the Demised Premises or any portion
thereof, nor shall this Lease be assigned by Legacy, without the prior written
consent of New Plan (which consent may be unreasonably withheld).
6. Legacy has examined the Demised Premises, and accepts them in
their present "as is" condition. Legacy shall keep the Demised Premises in good
repair and condition. Legacy shall quit and surrender the Demised Premises at
the end of the term in as good condition as the reasonable use thereof will
permit. Legacy shall not make any alterations, additions, or improvements to the
Demised Premises without the prior written consent of New Plan. All alterations,
additions, improvements and personal property, whether temporary or permanent in
character, which may be made upon the Demised Premises either by New Plan or
Legacy, except furniture, equipment or moveable trade fixtures installed at the
expense of Legacy, shall be the property of New Plan and shall remain upon and
be surrendered with the Demised Premises as a part thereof at the termination of
this Lease, without compensation to Legacy (but subject to the purchase option
described in Section 4 above).
7. New Plan shall provide utilities and services to the Demised
Premises for the benefit of Legacy in a quality and manner consistent with New
Plan's prior practice with respect to the Demised Premises.
15
8. Legacy agrees to observe and comply with all laws, ordinances,
rules and regulations of any federal, state, county and municipal authorities
applicable to the business to be conducted by Legacy in the Demised Premises.
9. In case of a breach or violation by Legacy of any of the
covenants, agreements and conditions of this Lease, or of the rules and
regulations now or hereafter to be reasonably established by New Plan, and upon
failure to cure such breach or violation within ten days after written notice
thereof given to Legacy, in addition to any other rights or remedies available
to New Plan at law or in equity, this Lease shall thenceforth, at the option of
New Plan, become null and void, and New Plan may reenter the Demised Premises
without further notice or demand.
10. This Lease is subject and is hereby subordinated to all
present and future mortgages, deeds of trust and other encumbrances affecting
the Demised Premises or the property of which said premises are a part.
11. New Plan covenants that Legacy, subject to paying the rental
and performing the covenants and conditions contained in this Lease contained,
shall and may peaceably and quietly have, hold and enjoy the Demised Premises
for the term set forth herein.
B-2
16
EXHIBIT C TO MASTER SEPARATION AGREEMENT
[FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT]
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, made as of April 21,1999
(this "Assignment Agreement"), between New Plan Excel Realty Trust, Inc., a
Maryland corporation ("New Plan"), and Excel Legacy Corporation, a Delaware
corporation ("Legacy"), is delivered pursuant to that certain Master Separation
Agreement (the "Agreement"), dated as of April 21, 1999, among New Plan, Legacy
and ERT Development Corporation. Capitalized terms used but not defined herein
shall have their respective meanings as set forth in the Agreement.
WITNESSETH
WHEREAS, pursuant to the terms of the Agreement, New Plan has
agreed to assign, transfer and dispose of, and Legacy has agreed to acquire and
accept, all of New Plan's right, title and interest as a general partner of
Excel Properties, Ltd., a California limited partnership (the "Partnership
Interest"); and
WHEREAS, pursuant to the Agreement, Legacy has agreed to assume all
of New Plan's liabilities and obligations arising on or after the date hereof
arising from or relating to the Partnership Interest.
WHEREAS, the execution and delivery of this Assignment Agreement by
the Parties is a condition to the obligation of the Parties to consummate the
transactions contemplated by the Agreement.
NOW, THEREFORE, in consideration of the premises set forth in this
Assignment Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, intending to be legally
bound, and subject to the terms and conditions stated herein, the Parties
hereby agree as follows:
I. Assignment. New Plan hereby assigns to Legacy all of New
Plan's right, title and interest, on and after the date hereof, in and to the
Partnership Interest. To the extent the assignment contemplated hereby shall
require the consent or waiver of any other party, neither this Assignment
Agreement nor the Agreement shall constitute an agreement to assign the
Partnership Interest without such consent or waiver. If any such required
consent or waiver is not obtained, Legacy and New Plan shall, at Legacy's
expense, cooperate in any reasonable arrangement requested by Legacy or New
Plan and designed to provide Legacy with the benefit of the Partnership Interest
(and all associated obligations or liabilities), including New Plan acting as
Legacy's agent in order to obtain for Legacy the benefits therefor.
Notwithstanding any such consents or assignment, Legacy agrees to indemnify,
hold harmless and defend New Plan from and against any and all liabilities,
obligations, claims or expenses of whatever kind resulting from or related to
the Partnership Interest and the assignment and arrangements contemplated by the
Agreement and this Assignment Agreement.
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II. Assumption. Legacy hereby assumes all of the liabilities and
obligations arising on or after the date hereof arising from or relating to the
Partnership Interest, and Legacy shall indemnify, hold harmless and defend New
Plan from and against any and all liabilities, obligations, claims or expenses
of whatever kind resulting from or relating to the Partnership Interest.
III. Remedies. Nothing in this Assignment Agreement, express or
implied, is intended or shall be construed to confer upon, or give to, any
person, firm or corporation other than New Plan and Legacy and their respective
successors and assigns, any remedy or claim under or by reason of this
Assignment Agreement or any terms, covenants or condition hereof, and all the
terms, covenants and conditions, promises and agreements contained in this
Assignment Agreement shall be for the sole and exclusive benefit of New Plan and
Legacy and their respective successors and assigns.
IV. Miscellaneous. The agreements, covenants and terms contained
herein shall be binding upon and inure to the benefit of New Plan and Legacy and
their respective successors and assigns, and shall be construed and enforced
according to the laws of the State of New York (without giving effect to choice
of law principles thereof). Neither of the parties hereto may assign this
Assignment Agreement to any party (other than an Affiliate) without the prior
written consent of the other party. This Assignment Agreement may be executed in
one or more counterparts each of which shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Assignment
Agreement as of the date first above written.
NEW PLAN EXCEL REALTY TRUST, INC.
By:_____________________________________
Name:
Title:
EXCEL LEGACY CORPORATION
By:_____________________________________
Name:
Title:
C-2
