Exhibit 10.1
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement ("AGREEMENT") is made as of the 27th day of
January, 1997, by and between Santa Xxxxx Realty Enterprises, Inc., a Delaware
corporation ("SANTA XXXXX"), and TrizecHahn Centers, Inc. (formerly known as
Xxxxxx X. Xxxx, Inc.), a California corporation ("XXXX"), with respect to the
following facts:
RECITALS
A. Santa Xxxxx is the owner of a fifty percent (50%) interest (the
"INTEREST") in H-T Associates, a Maryland general partnership (the
"PARTNERSHIP"), of which, pursuant to the Amended and Restated Partnership
Agreement of H-T Associates, a Maryland general partnership, dated as of July
28, 1987 (the "PARTNERSHIP AGREEMENT"), the managing general and only other
partner is Xxxx.
B. The Partnership owns a sixty-five percent (65%) managing partner's
interest (the "65% INTEREST") in Towson Town Center Associates, a Maryland
general partnership ("TTCA"), the only other partner in which, holding a thirty-
five percent (35%) partner's interest, is XxXxxxxx Associates, a Maryland
general partnership formerly known as Xxxxxxx Associates ("XXXXXXXX"), pursuant
to the Restated Agreement of General Partnership of Towson Town Center
Associates, dated as of July 28, 1987, as modified by a letter agreement dated
March 26, 1991, and a Settlement Agreement dated as of November 14, 1996, and as
amended by that certain First Amendment to Restated Agreement of General
Partnership of Towson Town Center Associates dated as of November 14, 1996 (as
so modified and amended, "TTCA PARTNERSHIP AGREEMENT").
C. TTCA is the owner and operator of a regional mall located in the City
of Towson, County of Baltimore, State of Maryland and commonly known as Towson
Town Center (the "PROJECT").
X. Xxxx currently acts as the property manager for the Project and is
responsible for all of TTCA's management, leasing and construction activities in
connection with the Project.
X. Xxxx and Santa Xxxxx are also partners in Joppa Associates, a Maryland
general partnership ("JOPPA"), which is the owner of property adjacent to the
Project, and consisting of a currently vacant retail building (the "JOPPA
PROPERTY").
F. The Project is subject to a loan in favor of The Bank of Tokyo-
Mitsubishi, Limited, formerly known as The Mitsubishi Bank, Limited ("BANK") in
the original amount of $170,000,000, and with a current principal balance of
approximately $164,641,000 (the "BANK LOAN"), secured inter alia by an Indemnity
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Deed of Trust (the "DEED OF TRUST"), a limited repayment guaranty, as amended,
by XxXxxxxx (the "XXXXXXXX LIMITED REPAYMENT
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GUARANTY"), repayment guarantees, as amended, by Xxxx (the "XXXX REPAYMENT
GUARANTY") and Santa Xxxxx (the "SANTA XXXXX REPAYMENT GUARANTY") and other loan
documents (collectively, with the foregoing guarantees, the "BANK LOAN
DOCUMENTS"). Pursuant to First Amendment to Repayment Guaranty dated as of
August 10, 1993, "Guaranteed Debt" under the Santa Xxxxx Repayment Guaranty is
currently in the amount of $66,135,000 principal, plus other amounts due as
specified therein. Pursuant to the Loan Documents, Bank's consent to Santa
Anita's sale of the Interest to Xxxx is not required, and Bank shall release
Santa Xxxxx from the Santa Xxxxx Repayment Guaranty if (i) Xxxx provides an
equivalent guaranty to Bank, and (ii) Xxxx'x creditworthiness is acceptable to
Bank.
G. For purposes of this Agreement, and except as set forth in Paragraph
28 of this Agreement, the Interest shall be deemed to include all of Santa
Anita's right, title and interest of every kind and nature in, to and with
respect to, and any and all claims of Santa Xxxxx against, and all of Santa
Anita's obligations, duties and liabilities with respect to, the Partnership,
TTCA and the Project, including without limitation, claims for money borrowed,
and amounts shown on the books and records of the Partnership under "Advances
from Partners" as having been advanced by Santa Xxxxx.
H. Pursuant to a Memorandum of Agreement dated as of December 6, 1996,
between Santa Xxxxx and The Macerich Partnership, L.P. ("MACERICH"), a copy of
which was delivered to Xxxx, Macerich offered acquired to acquire the Interest
on the terms and conditions specified therein. Pursuant to Section 10.2 of the
Partnership Agreement, Xxxx has exercised its right of first refusal to acquire
the Interest, and Santa Xxxxx and Xxxx are entering into this Agreement to set
forth their agreement regarding the purchase and sale of the Interest.
NOW, THEREFORE, in consideration of the foregoing recitals, the covenants
and agreements set forth below, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Santa Xxxxx and
Xxxx hereby agree as follows:
AGREEMENT
1. PURCHASE AND SALE. On the "Closing Date," as defined below, for
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the "Purchase Price," as defined below, and on the other terms and conditions
set forth below, Santa Xxxxx hereby agrees to sell, and Xxxx hereby agrees to
purchase, the Interest.
2. PURCHASE PRICE.
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2.1 Recognizing that the Interest reflects an indirect beneficial
ownership of 32.5% ("SANTA ANITA'S SHARE") of TTCA's assets and liabilities, and
of 50% ("SANTA ANITA'S PARTNERSHIP SHARE") of the Partnership's assets and
liabilities not included in TTCA's assets and liabilities, and direct ownership
of 100% of the obligations of TTCA and
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the Partnership to Santa Xxxxx, the parties have agreed that the purchase price
for the Interest ("PURCHASE PRICE") shall be calculated as follows:
(a) $5,000,000 (the "BASE PRICE"); increased or decreased by the
following adjustments ("ADJUSTMENTS"), calculated based on the
Partnership's and TTCA's assets and liabilities as of the Closing Date;
(b) The Base Price shall be increased by the following
Adjustments:
(i) Santa Anita's Share (32.5%) of any decrease in the
principal amount of the Bank Loan below $164,641,000;
(ii) Santa Anita's Share (32.5%) of the amount by which
TTCA's "Adjusted Working Capital" (defined below) exceeds $3,227,000;
and
(iii) Santa Anita's Partnership Share (50.0%) of the
Partnership's positive Adjusted Working Capital (to the extent not
included in the calculation of TTCA's Adjusted Working Capital) in
excess of $227,000.
(c) The Base Price shall be decreased by the following
Adjustments:
(i) Santa Anita's Share (32.5%) of the amount by which
Adjusted Working Capital of TTCA is less than $3,227,000;
(ii) Santa Anita's Partnership Share (50%) of any negative
Adjusted Working Capital of the Partnership (to the extent not
included in the calculation of TTCA's Adjusted Working Capital) below
$227,000; and
(iii) Santa Anita's Share (32.5%) of any increase in the
principal amount of the Bank Loan above $164,641,000.
(d) Attached hereto as Attachment A is a worksheet showing the
calculation of the Purchase Price under this Paragraph 2.1, assuming a
Closing Date of June 30, 1996, which is included only as an example to
confirm the parties' understanding of the method of calculating the
Purchase Price, and does not represent any agreement by the parties as to
the accuracy of the amounts used in the worksheet.
2.2 For purposes of this Agreement, "Adjusted Working Capital" means
the following assets less the following liabilities, calculated as of the
Closing Date:
(a) Assets shall include the following:
(i) Cash; plus
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(ii) Billed accounts receivable net of customary and
appropriate allowances for doubtful accounts and costs of collection
("ALLOWANCES"); plus
(iii) Accrued but unbilled accounts receivable, net of
Allowances and excluding any deferred rents receivable; plus
(iv) Notes receivable net of Allowances; plus
(v) Prepaid expenses, excluding capitalized leasing costs,
capitalized legal costs, capitalized leasing commissions, other
deferred assets, and other assets.
(b) Liabilities shall include the following:
(i) Accrued but unpaid interest, loan fees, and swap
interest payable;
(ii) Accounts payable to Xxxx, excluding Xxxx'x capital
account;
(iii) Accounts payable to tenants, including tenant
deposits of every kind and nature, except for security deposits in the
form of letters of credit, promissory notes or separate deposit
accounts to the extent the same are not cash obligations of TTCA and
are not reflected as assets on TTCA's books and records;
(iv) Accounts payable to others, excluding XxXxxxxx'x
capital account;
(v) Other accrued liabilities, including unexpended but
committed tenant improvement allowances, unused rent concessions or
abatements and other commitments; and
(vi) The amount of any commitment, formal or informal, to
which the assets are subject, and which commitment does not relate
directly to operations of the Project. Without limitation of the
foregoing, any funds intended for the benefit of Joppa or the Joppa
Property shall be deemed not to relate directly to the operations of
the Project.
2.3 In calculating assets and liabilities, the accrual method shall
be utilized, including, without limitation, accruals for base rent, percentage
rent, CAM recoveries, tenant loan payments (but, consistent with Paragraph
2.2(a)(v) above, there shall not be any accrual asset for "straight lining" of
rents), real and personal property taxes and assessments, insurance, business
license taxes, security deposits, unused rental concessions, unpaid
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obligations to tenants for improvement allowances, reimbursements or otherwise,
and unpaid brokerage or leasing fees and the like, effectively prorated as of
the Closing Date in substantially the same manner as if Santa Xxxxx owned the
Project and were selling it to Xxxx pursuant to a real estate purchase agreement
subject to customary prorations.
2.4 Approximately five (5) days prior to Closing, the parties will,
to the best of their ability, calculate the Adjustments and the Purchase Price,
utilizing the 1995 audited statements for the Partnership, the most recent
monthly unaudited statement for the Partnership, and such additional available
information as may be appropriate. The Purchase Price will be estimated
initially, based on a Pre-Closing Balance Sheet prepared in accordance with such
calculations and initialled by the parties, subject to further adjustment based
upon the Audited Closing Date Balance Sheet described below.
3. AUDITED CLOSING DATE BALANCE SHEET.
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3.1 Xxxx will cause the Partnership's outside independent certified
public accountants to prepare and issue a report ("ACCOUNTANT'S REPORT") within
ninety (90) days following the Closing, certifying an "Audited Closing Date
Balance Sheet." The cost of such certification will be borne 50% by Santa Xxxxx
and 50% by Xxxx, and each party agrees to pay its share within fifteen (15) days
of invoice therefor.
3.2 The Purchase Price will be adjusted positively or negatively on a
retroactive basis to reflect the amount, if any, by which the Purchase Price
calculated as per the Audited Closing Date Balance Sheet is greater or less than
the Purchase Price estimated pursuant to the Pre-Closing Balance Sheet
initialled by the parties. If the Audited Closing Date Balance Sheet shows a
decrease in the Purchase Price, then Santa Xxxxx shall pay to Xxxx the amount
thereof (the "SANTA XXXXX POST-CLOSING PAYMENT") within fifteen (15) days of its
receipt of the Accountant's Report. If the change in Purchase Price is an
increase, then Xxxx shall pay to Santa Xxxxx the amount thereof (the "XXXX POST-
CLOSING PAYMENT") within fifteen (15) days of Xxxx'x receipt of the Accountant's
Report.
4. XXXXXXX MONEY DEPOSIT; ESCROW. Concurrently herewith, Xxxx is
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delivering to First American Title Insurance Company, Los Angeles, California
("ESCROW HOLDER") an xxxxxxx money deposit against the Purchase Price in the
amount of $500,000, to be placed in an interest-bearing account, interest to
accrue for the benefit of Xxxx (inclusive of accrued interest, the "DEPOSIT").
At the Closing described below, the Deposit shall be transferred to Santa Xxxxx
as a portion of the Purchase Price. In the event Santa Xxxxx shall default in
its obligations hereunder, in the event Xxxx shall disapprove timely the results
of the Due Diligence Review, or in the event the Closing shall not occur by the
Closing Date specified in Paragraph 13 below, for any other reason save Xxxx'x
default hereunder, the Deposit shall be returned to Xxxx, which shall have no
further obligations hereunder save and except as set forth in Paragraph 8 below.
5. RELEASE OF SANTA XXXXX GUARANTY. From and after the date hereof,
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Santa Xxxxx and Xxxx will cooperate to obtain (i) the Bank's agreement that upon
Xxxx'x
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acquisition of the Interest and Xxxx'x assumption of the Santa Xxxxx Repayment
Guaranty, or Xxxx'x execution of a repayment guaranty on terms that are
equivalent to the Santa Xxxxx Repayment Guaranty, Santa Xxxxx will be released
from the Santa Xxxxx Repayment Guaranty (the "RELEASE OF SANTA XXXXX GUARANTY"),
and (ii) the Bank's acknowledgment that (x) upon Santa Anita's transfer of the
Interest to Xxxx and Xxxx'x assumption of the Santa Xxxxx Repayment Guaranty (or
Xxxx'x execution of a repayment guaranty on terms that are equivalent to the
Santa Xxxxx Repayment Guaranty), the Bank Loan will not be in default and, from
and after such date, the representations, warranties and covenants contained in
the Santa Xxxxx Repayment Guaranty no longer will be applicable to Santa Xxxxx,
(y) all payments due under the Bank Loan as of the date of such Bank Agreement
have been made and that no default interest is due or payable, and (z) the only
amounts payable as of the date thereof (which are then not yet due) are the
principal balance in the approximate amount of $164,641,000 and accrued interest
from the date of the last regular monthly payment (the "BANK AGREEMENT").
6. REPRESENTATIONS AND WARRANTIES OF XXXX. Xxxx hereby represents
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and warrants for the benefit of Santa Xxxxx, its successors and assigns, all
such representations and warranties to be deemed made again at Closing, and to
survive any investigation by Santa Xxxxx and the Closing for a period of one (1)
year, as follows:
6.1 Xxxx is a corporation duly organized, validly existing and in
good standing under the laws of the State of California, with full power to own
and operate its assets and business and duly qualified to conduct business in
all jurisdictions in which such qualification is required in order for Xxxx
properly to carry on its business therein.
6.2 Xxxx'x Board of Directors has approved the execution of this
Agreement and the consummation of the transactions contemplated hereby, and no
consent of any third party is necessary to permit Xxxx to perform its
obligations hereunder.
6.3 Xxxx is acquiring the Interest for investment, for its own
account, and not with a view to any distribution or sale to the public, or in
violation of applicable federal or state securities laws.
6.4 Xxxx has not received any priority return or other
disproportionate distributions in excess of its pro rata share of any cash flow
or other distributions by the Partnership, such that Santa Xxxxx is entitled to
any disproportionate share of any future distributions by the Partnership.
6.5 To the best knowledge of Xxxx, the foregoing representations and
warranties do not misstate a material fact or omit to state a material fact
necessary to make such representations and warranties not misleading.
6.6 Xxxx acknowledges the following:
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(a) Xxxx is the managing partner of the Partnership and the
property manager and leasing agent for the Project, and is responsible for
day-to-day management, operation and leasing of the Project;
(b) The representatives of Santa Xxxxx responsible for
negotiating the terms of the Partnership Agreement and Santa Anita's
involvement in the Partnership and the Project and for overseeing Santa
Anita's investment in the Partnership and the Project at the inception of
the Partnership and for several years thereafter are no longer employed by
Santa Xxxxx and Santa Anita's knowledge regarding the condition, operation
and management of the Project is limited thereby.
6.7 Xxxx further acknowledges that:
(a) Xxxx is a sophisticated investor experienced in the
acquisition, management, operation and leasing of regional malls similar to
the Project;
(b) Except for Santa Anita's express representations and
warranties made in this Agreement and in other written agreements prepared
for this transaction, Xxxx will be relying upon its status as the managing
partner of the Partnership, its management of the Project in its capacity
as property manager, and the results of its own due diligence review, and
not on any statements, promises or representations of Santa Xxxxx or its
representatives;
(c) Xxxx has had, and prior to the Closing, will have had, the
opportunity to consult with counsel and consultants of its choosing with
respect to the transaction contemplated by this Agreement; and
(d) Except as expressly set forth in this Agreement or other
written agreement prepared for this transaction, Santa Anita's sale of the
Interest to Xxxx is being made on an "AS IS, WHERE IS" basis.
6.8 The term "best knowledge of Xxxx," as used in this Agreement,
refers to knowledge of Xxxxx Xxxxx, Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxx, and such
individuals are the most knowledgeable executives as to the development,
operation, leasing and management of the Partnership, TTCA and the Project.
7. REPRESENTATIONS AND WARRANTIES OF SANTA XXXXX. Santa Xxxxx
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hereby represents and warrants for the benefit of Xxxx, its successors and
assigns, all such representations and warranties to be deemed made again at
Closing, and to survive any investigation by Xxxx and the Closing for a period
of one (1) year, as follows:
7.1 Santa Xxxxx is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, with full power to own
and operate its assets and business and duly qualified to conduct business in
all jurisdictions in which
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such qualification is required in order for Santa Xxxxx properly to carry on its
business therein.
7.2 Santa Anita's Board of Directors has approved the execution of
this Agreement and the consummation of the transactions contemplated hereby;
except for approval by Santa Anita's lender, Xxxxx Fargo Bank, N.A. ("XXXXX
FARGO") of the transactions contemplated hereby (the "XXXXX FARGO CONSENT"), no
consent from any third party is necessary to permit the performance of Santa
Xxxxx of its obligations hereunder.
7.3 Except as disclosed in Schedule 7.3, Santa Xxxxx is not subject
to any written claim or pending litigation which would affect its rights and
obligations hereunder. Santa Xxxxx is solvent and will not be rendered insolvent
by the consummation of the transactions contemplated hereby.
7.4 Except as disclosed in Schedule 7.4 and except for litigation
that has been brought by the Partnership or the Project against a tenant, and
with respect to which there has been no counter-claim or cross-claim brought by
the tenant against the Partnership, the Project, TTCA or Santa Xxxxx, to the
best of Santa Anita's knowledge, none of the Partnership, TTCA or the Project is
subject to any written claim or pending litigation affecting the Partnership,
TTCA or the Project.
7.5 With the exception of that certain letter agreement dated
November 1, 1989 by and between Xxxx and Santa Xxxxx, the Partnership Agreement
has not been amended from the Amended and Restated Partnership Agreement of H-T
Associates dated as of July 28, 1987, and is in full force and effect, and Santa
Xxxxx is not in default thereunder in any material respect.
7.6 Except as disclosed in Recital B above, the TTCA Partnership
Agreement has not been amended from the Restated Agreement of General
Partnership of Towson Town Center Associates dated as of July 28, 1987, and is
in full force and effect, and to the best of Santa Anita's knowledge, neither
the Partnership nor XxXxxxxx is in default thereunder, in any material respect.
7.7 Santa Xxxxx is not in material default of any of its obligations
in connection with the Project, TTCA, the Partnership or the Bank Loan
Documents, save only and except to the extent of its not maintaining the net
worth required by the Santa Xxxxx Repayment Guaranty. The Bank Loan Documents
listed in Attachment B have not been amended in any respect, and except as set
forth above, are currently in full force and effect without material default
thereunder by any party thereto (except that Santa Xxxxx is not making any
representation regarding such matters with respect to Xxxx). As to parties other
than Santa Xxxxx, such representation is given as to Santa Anita's best
knowledge.
7.8 To the best knowledge of Santa Xxxxx, there are not any material
inaccuracies in the audited financial statements of H-T Associates and
Subsidiary as of
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December 31, 1995, as certified by KPMG Marwick, LLP, and dated February 9,
1996, or in the unaudited statements and rent roll for the Project dated as of
June 30, 1996.
7.9 The Partnership has not received any priority return or other
disproportionate distributions in excess of its pro rata share of any cash flow
or other distributions by TTCA, such that XxXxxxxx is entitled to any
disproportionate share of any future distributions by TTCA.
7.10 Santa Xxxxx has not received any priority return or other
disproportionate distributions in excess of its pro rata share of any cash flow
or other distributions by the Partnership, such that Xxxx is entitled to any
disproportionate share of any future distributions by the Partnership.
7.11 All contributions required to be made to the Partnership by Santa
Xxxxx as of the date hereof have in fact been made, and Santa Xxxxx is not in
any way indebted to the Partnership.
7.12 To the best knowledge of Santa Xxxxx, (i) all contributions
required to be made by the Partnership or XxXxxxxx to TTCA as of the date hereof
have been made, and (ii) neither the Partnership nor XxXxxxxx has any
unsatisfied obligation to TTCA.
7.13 Except as set forth in Schedule 7.13, and except such "Major
Decisions" (as defined in the Partnership Agreement and the TTCA Partnership
Agreement) as do not involve obligations of the Partnership, Santa Xxxxx, the
Project or TTCA which are executory as of the date hereof, Santa Xxxxx has not
approved any "Major Decisions" by the Partnership or TTCA, and to the best
knowledge of Santa Xxxxx, no Major Decisions have been taken by the Partnership
or TTCA without Santa Anita's approval.
7.14 To the best knowledge of Santa Xxxxx, all Major Decisions taken
by the Partnership or TTCA not involving executory obligations and not listed in
Schedule 7.14, are appropriately reflected in (i) the physical condition of the
Project, (ii) the leases currently in effect at the Project and included in
TTCA's books and records, or (iii) the financial books and records of TTCA.
7.15 Except for discussions with Macerich in connection with the
agreement described in Recital H, Santa Xxxxx has not had any discussions with
any other person or firm concerning sale of the Interest or the Partnership's
interest in TTCA, or the Project to such person or firm or to a client or
associate of such person or firm.
7.16 To the best knowledge of Santa Xxxxx, (i) the Project has not
been used for, or subject to, the storage or release of any Hazardous Substances
(as that term is defined in Attachment C) in violation of applicable law, and
(ii) neither TTCA nor the Partnership or Santa Xxxxx has received any written
notice to the contrary.
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7.17 The Interest is held by Santa Xxxxx free and clear of any and
all claims, liens or encumbrances except those imposed by the Partnership
Agreement, and represents all right, title and interest of Santa Xxxxx and its
affiliates in and to the Partnership, TTCA and the Project.
7.18 Except as disclosed in the title insurance policy issued to TTCA,
the Project is not subject to any secured indebtedness except pursuant to the
Deed of Trust.
7.19 To the best knowledge of Santa Xxxxx, neither TTCA nor the
Partnership is subject to any indebtedness except as set forth in the audited
financial statements of H-T Associates and Subsidiary dated as of December 31,
1995, and as may have been incurred in the ordinary course of business since
that date.
7.20 Other than this Agreement, no offer is currently pending under
Section 10.2 or Article 11 of the Partnership Agreement, or under Section 11.4
or Article 12 of the TTCA Partnership Agreement.
7.21 To the best knowledge of Santa Xxxxx, the representations and
warranties set forth above do not misstate a material fact or fail to state a
material fact necessary to make such representations and warranties not
misleading.
7.22 The term "best knowledge of Santa Xxxxx," as used in this
Agreement, refers to knowledge of Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxxx. Xx.
Xxxxx and Xx. Xxxxxxx of Santa Xxxxx are the most knowledgeable executives as to
the matters set forth herein requiring the knowledge of Santa Xxxxx.
8. DUE DILIGENCE REVIEW. The parties acknowledge that, as the
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managing partner of the Partnership and the property manager of the Project,
Xxxx is in possession of the documentation concerning current operations of the
Project, TTCA and the Partnership. Xxxx shall have the following periods to
conduct a due diligence review, at Xxxx'x sole cost and expense, and to satisfy
itself in its good faith discretion, as to the following matters (collectively,
the "DUE DILIGENCE REVIEW"): (i) until 5:00 p.m. Los Angeles time on March 12,
1997 (other than with respect to the matters described hereinafter in clause
(ii), which shall be subject to the time period set forth in that clause) with
respect to the current status of the Partnership, TTCA and the Project,
including, without limitation, copies of leases and lease files, property
management files, financial statements and back up data, property tax files, tax
returns, litigation files, governmental land use files, insurance files, Bank
Loan Documents, minutes of Partnership, TTCA and committee meetings,
correspondence relating to all of the foregoing, and such other matters
customarily subject to review in connection with the acquisition of a regional
shopping center mall, the acquisition of partnership interests, and the review
of real estate and loan documentation; and (ii) until 5:00 p.m. Los Angeles time
on March 27, 1997 with respect to the current physical and environmental
condition of the Project and title and survey matters (other than with respect
to title or survey documents on which Xxxx or one of its affiliates is a
signatory). Xxxx shall diligently pursue completion of its Due Diligence Review.
Promptly after the execution of this
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Agreement, Santa Xxxxx shall deliver to Xxxx copies of documents (if any) in
Santa Anita's possession and relating to the Project, the Partnership or TTCA
and not otherwise in the possession of Xxxx or its affiliates. The Due Diligence
Review shall be subject to the rights of the tenants under leases of space at
the Project. Xxxx shall indemnify, defend and hold harmless Santa Xxxxx and
XxXxxxxx from and against any and all claims, demands, damages, losses,
liabilities, costs and expenses, including reasonable attorneys' fees, to the
extent arising out of any actual physical damage to property or injury or death
of persons caused by, or from any mechanics or materialmen's liens arising from
the acts of, Xxxx or its employees, consultants or agents in conducting the Due
Diligence Review (which indemnification shall survive the Closing and the
termination of this Agreement). If Xxxx fails to terminate this Agreement prior
to the respective dates set forth above, Xxxx shall be deemed to have approved
the results of the Due Diligence Review.
9. PRE-CLOSING COVENANTS BY SANTA XXXXX. Promptly following
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execution hereof, Santa Xxxxx will:
9.1 Notify and furnish Bank with a copy of this Agreement and request
the Release of Santa Xxxxx Guaranty and the Bank Agreement.
9.2 Notify and furnish Xxxxx Fargo with a copy of this Agreement and
request the Xxxxx Fargo Consent (and Santa Xxxxx shall diligently pursue
obtaining the Xxxxx Fargo Consent).
9.3 Transmit to XxXxxxxx and request its execution of an estoppel
statement as called for by the TTCA Partnership Agreement in form attached as
Attachment D (the "XXXXXXXX ESTOPPEL STATEMENT").
9.4 Continue to make available to Xxxx any and all documentation
concerning the Partnership, TTCA or the Project which is now or which
subsequently comes into Santa Anita's possession or control and which Xxxx or
its affiliates do not already possess.
9.5 Contact and work with the title insurance company which issued
the policy of title insurance currently held by TTCA in order to obtain the
"TITLE ENDORSEMENT" (defined below).
10. PRE-CLOSING COVENANTS OF XXXX. Promptly following execution
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hereof, Xxxx will cooperate with Santa Xxxxx to obtain the Release of Santa
Xxxxx Guaranty and the Bank Agreement (including providing appropriate
information requested by Bank in connection therewith).
11. SANTA XXXXX CONDITIONS PRECEDENT. The obligations of Santa Xxxxx
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to transfer the Interest to Xxxx shall be subject to satisfaction or waiver by
Santa Xxxxx of the following conditions precedent (the "SANTA XXXXX CONDITIONS
PRECEDENT"):
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11.1 Performance by Xxxx of its covenants and agreements to be
performed prior to the Closing Date.
11.2 The continued truth and accuracy as of the Closing Date of the
representations and warranties of Xxxx hereunder.
11.3 The receipt of the Release of Santa Xxxxx Guaranty and the Bank
Agreement.
11.4 The obtaining of the Xxxxx Fargo Consent.
11.5 Xxxx'x approval of the Pre-Closing Balance Sheet (it being
understood that such approval shall not supersede or waive the final audit as
reflected in the Audited Closing Date Balance Sheet).
11.6 The absence of litigation against the Partnership, TTCA, Santa
Xxxxx or Xxxx which seeks to preclude consummation of the transactions
contemplated hereby.
11.7 The execution and delivery to Santa Xxxxx of an opinion of
counsel to Xxxx in customary form for transactions of the type contemplated
hereby.
12. XXXX CONDITIONS PRECEDENT. Performance by Xxxx of its obligations
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to purchase the Interest from Santa Xxxxx shall be subject to satisfaction or
waiver by Xxxx of the following conditions precedent ("XXXX CONDITIONS
PRECEDENT"):
12.1 Performance by Santa Xxxxx of its covenants and agreements to be
performed prior to the Closing Date.
12.2 The continued truth and accuracy as of the Closing Date of the
representations and warranties of Santa Xxxxx hereunder.
12.3 The receipt of the Bank Agreement.
12.4 The execution and delivery by XxXxxxxx of the XxXxxxxx Estoppel
Statement.
12.5 Delivery by Santa Xxxxx and reasonable approval by Xxxx of the
Pre-Closing Balance Sheet.
12.6 Xxxx'x approval in its good faith discretion (or deemed approval)
of the results of the Due Diligence Review on or before the respective dates set
forth in Paragraph 8.
12.7 The issuance to Xxxx if commercially available, of the Title
Endorsement.
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12.8 The absence of any material adverse change in the business or
assets of the Partnership, TTCA, or the Project (with the understanding that
documents or agreements executed by Xxxx or Xxxx'x affiliates will not be
considered a material adverse change).
12.9 The absence of litigation against the Partnership, TTCA, Santa
Xxxxx or Xxxx which seeks to preclude consummation of the transactions
contemplated hereby.
12.10 The execution and delivery to Xxxx of an opinion of counsel to
Santa Xxxxx in customary form for transactions of the type contemplated hereby.
13. CLOSING. The purchase and sale of the Interest (the "CLOSING")
-------
will take place at the offices of O'Melveny & Xxxxx LLP, 000 Xxxxx Xxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx, at the hour of 10:00 a.m. on the tenth (10th) day
following Xxxx'x approval or deemed approval of the Due Diligence Review (the
"CLOSING DATE"), or at such other time and place as the parties may agree, and
provided, however, that Xxxx shall not be obligated to close unless all of the
Xxxx Conditions Precedent have been met or waived five (5) business days prior
to the scheduled Closing Date. Santa Xxxxx and Xxxx agree to use their good
faith efforts to cause the Closing Date to occur prior to April 9, 1997. If
despite the parties' respective good faith efforts, the Closing has not occurred
prior to June 30, 1997, then either Santa Xxxxx or Xxxx may cancel this
Agreement, and Xxxx be entitled to receive the return of the Deposit.
13.1 At the Closing, Santa Xxxxx will deliver to Xxxx the following:
(a) An assignment of the Interest;
(b) An assignment of any and all claims of Santa Xxxxx against
the Partnership, TTCA and the Project;
(c) an initialled copy of the Pre-Closing Balance Sheet;
(d) To the extent not theretofore delivered to Xxxx, the
documents referenced in Paragraphs 12.3, 12.4, 12.5, 12.7 and 12.10; and
(e) Such other documents effecting the purposes of this Agreement
as counsel for Xxxx may reasonably request.
13.2 At the Closing, Xxxx will deliver to Santa Xxxxx:
(a) The remainder of the Purchase Price by wire transfer of
immediately available funds;
(b) An Assumption of Santa Anita's obligations under the
Partnership Agreement, accruing from and after the Closing Date;
13
(c) An Assumption of the obligations of Santa Xxxxx under the
Santa Xxxxx Repayment Guaranty occurring from and after the Closing Date
(or, if requested by Bank, a new repayment guaranty on terms that are
equivalent to the Santa Xxxxx Repayment Guaranty);
(d) An initialled copy of the Pre-Closing Balance Sheet;
(e) The opinion of counsel referenced in Paragraph 11.7; and
(f) Such other documents effecting the purposes of this Agreement
as counsel for Santa Xxxxx may reasonably request.
13.3 All documents to be delivered at the Closing shall be in form and
substance reasonably satisfactory to counsel for the party to whom they are to
be delivered.
13.4 Santa Xxxxx shall pay any and all transfer fees or recording
costs which may be imposed (whether on Santa Xxxxx, Xxxx, the Partnership or
TTCA) by a governmental agency as a result of the transfer of the Interest from
Santa Xxxxx to Xxxx, the assignment to Xxxx of the obligations owed by the
Partnership to Santa Xxxxx, and the withdrawal of Santa Xxxxx as a partner in
the Partnership (collectively, "TRANSFER FEES"). Santa Xxxxx shall also pay the
cost of an appropriate endorsement, if commercially available, on TTCA's policy
of title insurance, dating down the policy to the Closing Date and reflecting
Xxxx'x acquisition of the Interest (the "TITLE ENDORSEMENT"). Santa Anita's
responsibility for payment of the Transfer Fees and the cost of the Title
Endorsement may be discharged at Closing by a debit in the aggregate amounts
thereof against the Purchase Price.
14. POST-CLOSING COVENANTS OF SANTA XXXXX. Following the Closing,
-------------------------------------
Santa Xxxxx will:
14.1 Make available upon request to representatives of Xxxx for review
and copying any and all books and records of the Partnership or Santa Xxxxx
pertaining to the Project, TTCA or the Partnership in Santa Anita's possession
or control and not otherwise in the possession of Xxxx or its affiliates.
14.2 Pay to Xxxx, if and when due, the Santa Xxxxx Post-Closing
Payment.
14.3 Subject to the full and faithful performance by Xxxx of its
obligations hereunder, and subject to the limitations set forth in Paragraph
14.6 below, defend, indemnify and hold Xxxx harmless from and against any and
all claims, demands, damages, losses, liabilities, costs and expenses, including
reasonable attorneys' fees, arising out of or in connection with, Santa Anita's
ownership or operation of the Interest prior to the Closing Date, including
without limitation, any obligations to Bank under the Santa Xxxxx Repayment
Guaranty accruing prior to the Closing Date, provided that notice of such
claims, etc. is provided in writing by Xxxx to Santa Xxxxx within one (1) year
after the Closing.
14
14.4 Defend, indemnify and hold Xxxx harmless from and against the
claims of any broker or any other person claiming a fee in connection with the
purchase and sale of the Interest by reason of the alleged engagement by Santa
Xxxxx of such person or entity.
14.5 Subject to the limitations set forth in Paragraph 14.6 below,
defend, indemnify and hold Xxxx harmless from and against any and all claims,
demands, damages, losses, liabilities, costs and expenses, including reasonable
attorneys' and consultants' fees, resulting from the breach by Santa Xxxxx of
its obligations hereunder, provided that any claims, etc. relating to a breach
by Santa Xxxxx of its representations and warranties under this Agreement may be
brought only if Xxxx has notified Santa Xxxxx of such claimed breach within one
(1) year after the Closing.
14.6 Notwithstanding the provisions of Paragraphs 14.3 and 14.5,
above, no such claim may be brought for a breach of a representation, or
warranty of Santa Xxxxx to the extent that Xxxx is aware of such breach prior to
the Closing Date and nevertheless elects to complete the Closing. Further, no
claim shall be brought under Paragraph 14.3 or Paragraph 14.5, except to the
extent, and then only to the extent that (i) Xxxx did not know of such matter
prior to the Closing Date, and (ii) aggregate damages from all such claims by
Xxxx under such paragraphs exceed the sum of $100,000.
15. POST-CLOSING COVENANTS OF XXXX. Following the Closing, Xxxx
------------------------------
will:
15.1 Make available upon request to representatives of Santa Xxxxx,
for review and copying, copies of any and all books and records of the
Partnership for periods ending on or prior to the last day of the fiscal year in
which the Closing Date occurs.
15.2 Pay to Santa Xxxxx, if and when due, the Xxxx Post-Closing
Payment.
15.3 Defend, indemnify and hold Santa Xxxxx harmless from and
against the claims of any broker or any other person claiming a fee in
connection with the purchase and sale of the Interest by reason of the alleged
engagement by Xxxx of such person or entity.
15.4 Subject to the full and faithful performance by Santa Xxxxx of
its obligations hereunder, defend, indemnify and hold Santa Xxxxx harmless from
and against any and all claims, demands, damages, losses, liabilities, costs and
expenses, including reasonable attorneys' and consultants' fees, arising out of
or in connection with operations of the Partnership, TTCA or the Project from
and after the Closing Date, including, without limitation, any obligations to
Bank under the Bank Loan Documents accruing after the Closing Date.
15.5 Subject to the full and faithful performance by Santa Xxxxx of
its obligations hereunder, defend, indemnify and hold Santa Xxxxx harmless from
and against any and all claims, demands, damages, losses, liabilities, costs and
expenses, including reasonable attorneys' and consultants' fees, arising out of
or in connection with, the payment of principal, interest or other charges under
the Bank Loan Documents, first coming due
15
from and after the Closing Date, including without limitation, any liability
under the Santa Xxxxx Repayment Guaranty.
15.6 Defend, indemnify and hold Santa Xxxxx harmless from and
against any and all claims, demands, damages, losses, liabilities, costs and
expenses, including reasonable attorneys' and consultants' fees, resulting from
the breach by Xxxx of its obligations hereunder, provided that any claims, etc.
relating to a breach by Xxxx of its representations and warranties under this
Agreement may be brought only if Santa Xxxxx has notified Xxxx of such claimed
breach within one (1) year after the Closing.
15.7 With the cooperation and at the expense of Santa Xxxxx, cause
to be filed as appropriate, notice of Santa Anita's withdrawal from the
Partnership and cause to be paid (at Santa Anita's expense as set forth in
Paragraph 13.4) any Transfer Fees in connection therewith.
15.8 Notwithstanding the provisions of Paragraph 15.3 and 15.6, no
such claim may be brought by Santa Xxxxx for a breach of a representation or
warranty by Xxxx to the extent that Santa Xxxxx is aware of such breach prior to
the Closing Date, and nevertheless elects to complete the Closing.
16. NO BROKERS. Each of Santa Xxxxx and Xxxx represents to the
----------
other that it has not engaged the services of any broker, finder or similar
person or entity in connection with this Agreement or the subject matter hereof,
and each agrees to indemnify and hold the other harmless from and against any
and all claims, demands, damages, losses, liabilities, costs and expenses,
including reasonable attorneys' and consultants' fees, arising out of or in
connection with the assertion by any person, firm or entity that is entitled to
a brokerage fee, finder's fee, commission or similar payment by reason of the
actions of the indemnifying party.
17. COSTS AND EXPENSES. Except as otherwise set forth herein with
------------------
respect to the covenants and agreements (including, without limitation,
agreements to indemnify and hold harmless) by one party in favor of the other,
and except for Santa Anita's payment of Transfer Fees and the cost of the Title
Endorsement, each party shall be responsible for the payment of its own costs
and expenses incurred in connection with the preparation and negotiation of this
Agreement, including the fees and expenses of its counsel.
18. ATTORNEYS' FEES. In the event action be commenced to enforce
---------------
this Agreement, the prevailing party shall be entitled to recover its costs of
enforcement, including reasonable attorneys' fees.
19. GOVERNING LAW. This Agreement shall be construed and governed by
-------------
the laws of California applicable to contracts made and to be performed in that
State.
20. CONSTRUCTION. Each party to this Agreement has been represented
------------
by independent counsel of its own choosing, and this Agreement shall be
construed fairly in
16
accordance with its terms and not strictly construed as against either party or
with regard to any presumption against the drafter.
21. COUNTERPARTS. This Agreement may be executed in multiple
------------
counterparts, all of which together shall constitute a single agreement.
22. FURTHER ASSURANCES. In connection with this Agreement, as well
------------------
as all transactions contemplated hereby, each party agrees to execute and
deliver such additional documents and instruments and to perform such additional
acts as may be necessary or appropriate to effectuate, carry out or perform all
of the terms, reasons and conditions hereof, and all such transactions.
23. NOTICES. Any notice or other communication with this Agreement
-------
shall be in writing and shall be considered given when hand delivered, three (3)
days after mailing by registered or certified mail, return receipt requested,
one (1) day after pre-paid delivery to a reputable overnight courier, or upon
delivery during normal business hours of a facsimile transmission, provided the
same be followed by a mailing as set forth above, in each case to the respective
party at the following address (or at such other address as such party may have
previously specified by notice to the other party in accordance with the terms
hereof):
(a) If to Santa Xxxxx:
Santa Xxxxx Realty Enterprises, Inc.
000 Xxxx Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxx, Esq.
Xxxx X. Xxxxx III, Esq.
O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
(b) If to Xxxx:
TrizecHahn Centers, Inc.
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
17
Facsimile No.: (000) 000-0000
with copy to:
Xxxxxxx X. Xxxxxx, Esq.
Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
24. HEADINGS. All headings are inserted only for convenience and
--------
ease of reference, and are not to be considered in the construction or
interpretation of any provision of this Agreement.
25. NO THIRD PARTIES. The provisions of this Agreement are intended
----------------
to be for the sole benefit of the parties hereto, and none of the provisions of
this Agreement are intended to be, nor shall they be construed to be, for the
benefit of any third party.
26. EXCLUSIVE DEALING. Pending the Closing Date and any extension
-----------------
thereof, Santa Xxxxx will not solicit, accept, negotiate or discuss with other
prospective purchasers any potential sale of all or any portion of the Interest,
the Project or TTCA's interest therein. The foregoing restriction shall not
apply to Santa Anita's disclosures to and discussions with (i) Colony Capital,
Inc. concerning the proposed business combination between Colony Capital, Inc.
and Santa Xxxxx, or (ii) Xxxx Company and Apollo Real Estate Advisors in
connection with an offer made by such entities to invest in Santa Xxxxx.
27. DEFINITIVE AGREEMENT. This Agreement is intended to be and shall
--------------------
be construed as a binding agreement between the parties, enforceable in
accordance with its terms.
28. JOPPA ASSOCIATES; RESERVATION OF RIGHTS. The Interest does not
---------------------------------------
include any interest of Santa Xxxxx in Joppa or the Joppa Property, or any of
Santa Anita's rights or obligations with respect thereto. Furthermore, (i)
nothing in this Agreement shall be deemed or construed to amend, modify, limit,
supersede or alter in any way the Partnership Agreement, the TTCA Partnership
Agreement, or the respective rights, duties and obligations of the parties
thereunder with respect to matters arising prior to the Closing Date, and (ii)
notwithstanding anything to the contrary in this Agreement or in the documents
delivered by Santa Xxxxx and Xxxx on the Closing Date, the Interest does not
include, and Xxxx and Santa Xxxxx each hereby expressly reserves, all rights,
claims and remedies (including, without limitation, claims for indemnity or
contribution) that either party now has or hereafter may have under the
Partnership Agreement and/or the TTCA Partnership Agreement, and/or with respect
to their status as partners in the Partnership, for any matters relating to the
Project, the Partnership or TTCA and arising prior to the Closing Date.
18
29. CONFIDENTIALITY. Prior to the Closing, except as expressly
---------------
contemplated herein, neither party will, without the consent of the other,
disclose this Agreement or the contents or subject matter hereof, except to the
extent the same may be required by legal process or federal securities laws of
which the party intending to disclose any such information shall have given the
other party written notice immediately upon being advised any intended,
attempted or actual service of such process or immediately upon considering
whether and to what extent federal securities laws may require such disclosure,
as the case may be.
30. SURVIVAL. The indemnifications set forth in Paragraphs 14 and 15
--------
shall survive the Closing.
IN WITNESS WHEREOF, the undersigned have caused the execution of this
Agreement as of the day and year first above written by their officers thereunto
duly authorized.
SANTA XXXXX REALTY ENTERPRISES, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Its: Executive Vice President & CFO
-------------------------------
TRIZECHAHN CENTERS, INC.,
a California corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Its: Senior Vice President Finance
-------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Its: Senior Vice President and
General Counsel
-------------------------------
19
ATTACHMENT A
TO
MEMORANDUM OF AGREEMENT BETWEEN
SANTA XXXXX REALTY ENTERPRISES, INC.
AND
TRIZECHAHN CENTERS, INC.
EXAMPLE OF PURCHASE PRICE CALCULATIONS
A-1
TOWSON TOWN CENTER
EXAMPLE OF PURCHASE
PRICE CALCULATION
Purchase price 5,000,000
working capital adjustment: TTC
based on 6-30-96 balance sheet:
cash 5,039,715
billed a/r 782,634
unbilled a/r 105,061
notes receivable 159,543
other a/r (2,416)
allowance for doubtful a/cs (478,647)
prepaids:
property taxes 5,621
prepaid int. and swap exp 192,377
prepaid cam expense 331,307
LESS:
interest, Ican fees + swap expense payable (445,694)
A/P tenants (124,511)
other accrued liabilities (1,203,038)
A/P Xxxx 1,567
----------
subtotal - working capital 4,363,509
less 3,227,000
----------
working capital adj- TTC 1,136,509 32.50% 369,365
==========
working capital adjustment- TTC
based on 6-30-96 balance sheet:
cash 266,801
less 227,001
----------
working capital adj- HT 39,800 50.00% 39,801
==========
---------
TOTAL PURCHASE PRICE AS ADJUSTED 5,409,166
=========
ATTACHMENT B
TO
MEMORANDUM OF AGREEMENT BETWEEN
SANTA XXXXX REALTY ENTERPRISES, INC.
AND
TRIZECHAHN CENTERS, INC.
BANK LOAN DOCUMENTS
1. Building Loan Agreement, dated as of May 18, 1990.
-----------------------
2. Building Loan Note, dated as of May 18, 1990.
------------------
3. Indemnity Deed of Trust and Security Agreement and Assignment of Leases and
---------------------------------------------------------------------------
Rents, dated as of May 18, 1990.
-----
4. Interest Rate and Currency Exchange Agreement, dated as of June 5, 1990.
---------------------------------------------
5. Secured Repayment Guaranty, dated as of May 18, 1990, executed by Towson
--------------------------
Town Center Associates for the benefit of The Mitsubishi Bank, Limited.
6. Repayment Guaranty, dated as of May 18, 1990, executed by Xxxxxx X. Xxxx,
------------------
Inc., for the benefit of The Mitsubishi Bank, Limited.
7. Repayment Guaranty, dated as of May 18, 1990, executed by XxXxxxxx
------------------
Associates for the benefit of The Mitsubishi Bank, Limited.
9. Pledge Agreement, dated as of May 18, 1990.
----------------
10. Completion Guaranty, dated as of May 18, 1990, executed by Santa Xxxxx
-------------------
Realty Enterprises, Inc.
11. Completion Guaranty, dated as of May 18, 1990, executed by Xxxxxx X. Xxxx,
-------------------
Inc.
12. Environmental Guaranty, dated as of May 18, 1990, executed by Santa Xxxxx
----------------------
Realty Enterprises, Inc.
13. Credit Facility and Reimbursement Agreement, dated as of May 18, 1990.
-------------------------------------------
14. Letter of Credit, dated as of __________________.
----------------
B-1
ATTACHMENT C
TO
MEMORANDUM OF AGREEMENT BETWEEN
SANTA XXXXX REALTY ENTERPRISES, INC.
AND
TRIZECHAHN CENTERS, INC.
HAZARDOUS SUBSTANCES
1. Environmental Law. "Environmental Law" shall mean any applicable
-----------------
federal, state, regional or local law, rule, regulation, code, ordinance,
injunction, decree or order now in effect or from time to time adopted or
amended, concerning protection of the environment or the regulation, control,
remediation or reporting of pollution or other impairment to air, soil, water
(including groundwater), public health and safety, occupational health and
safety, or the generation, storage, treatment, disposal, transportation,
handling, release, discharge or emission of any hazardous substance or other
pollutant, contaminant or waste.
2. Hazardous Substance. "Hazardous Substance" shall mean any substance
-------------------
regulated by or subject to any Environmental Law, including without limitation,
any substance defined as a "regulated substance," "hazardous substance,"
"hazardous waste," "extremely hazardous waste," "designated waste," "hazardous
material," "toxic substance," "pollutant," "toxic pollutant" or "pesticide" or
otherwise regulated by or subject to the Resource Conservation and Recovery Act,
--------------------------------------
and the Comprehensive Environmental Response, Compensation and Liability Act.
--------------------------------------------------------------------
Hazardous Substance shall mean petroleum, including crude oil or any fraction
thereof, and any petroleum product, by-product, feedstock, waste or residue and
shall include waste oil.
C-1
ATTACHMENT D
TO
MEMORANDUM OF AGREEMENT BETWEEN
SANTA XXXXX REALTY ENTERPRISES, INC.
AND
TRIZECHAHN CENTERS, INC.
XXXXXXXX ESTOPPEL STATEMENT
To be furnished.
D-1
SCHEDULE 7.3
TO
MEMORANDUM OF AGREEMENT BETWEEN
SANTA XXXXX REALTY ENTERPRISES, INC.
AND
TRIZECHAHN CENTERS, INC.
None
SCHEDULE 7.4
TO
MEMORANDUM OF AGREEMENT BETWEEN
SANTA XXXXX REALTY ENTERPRISES, INC.
AND
TRIZECHAHN CENTERS, INC.
1. XxXxxxxx v. Towson Town Center Associates, filed August 6, 1996 as Case
No., 03-C-96-007957 OT.
SCHEDULE 7.13
TO
MEMORANDUM OF AGREEMENT BETWEEN
SANTA XXXXX REALTY ENTERPRISES, INC.
AND
TRIZECHAHN CENTERS, INC.
None.
THIRD AMENDMENT
TO
MEMORANDUM OF AGREEMENT
This THIRD AMENDMENT TO MEMORANDUM OF AGREEMENT ("Agreement"), is entered
into effective as of April 4, 1997, by and between SANTA XXXXX REALTY
ENTERPRISES, INC. a Delaware corporation ("Santa Xxxxx"), and TRIZECHAHN CENTERS
INC. (formerly known as "Xxxxxx X. Xxxx, Inc."), a California corporation
("Xxxx"), with respect to the following facts:
R E C I T A L S:
- - - - - - - -
A. Santa Xxxxx and Xxxx entered into that certain Memorandum of Agreement
dated January 27, 1997, as amended by that certain First Amendment to
Memorandum of Agreement, dated March 12, 1997, and by that certain
Second Amendment to Memorandum of Agreement, dated March 27, 1997
(collectively, the "Purchase Agreement"), concerning the purchase and
sale of the "Interest" (as such term is defined in the Purchase
Agreement). Terms used in this Amendment and not otherwise defined
herein shall have the same meaning as set forth in the Purchase
Agreement.
B. The parties desire to amend the Purchase Agreement as hereinafter set
forth.
A G R E E M E N T:
- - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Due Diligence Review. Xxxx has completed and hereby approves the results
--------------------
of its Due Diligence Review.
2. Purchase Price. Sections 2, 3, 11.5, 12.5, 13.1(c), 13.2(d), 14.2, 15.2
--------------
and Attachment A of the Purchase Agreement are hereby deleted. The
Purchase Price for the Interest shall be Three Million Nine Hundred
Thousand and No/100 Dollars ($3,900,000.00). Santa Xxxxx shall not
receive any distributions or payments from the Partnership with respect
to the Interest (it being understood that the Purchase Price has been
adjusted partially to account for Santa Anita's share of the working
capital of the Partnership); provided, however, that if the sale of the
Interest to Xxxx fails to close for any reason, this sentence shall be
of no force or effect, and Santa Xxxxx shall have all of its rights to
receive such distributions and payments in the manner set forth in the
Partnership Agreement.
3. Closing. Santa Xxxxx and Xxxx agree to use their good faith efforts to
-------
cause the Closing Date to occur prior to April 30, 1997.
4. Effect of Amendment. To the extent there is any inconsistency between
-------------------
the terms of this Amendment and the terms of the Purchase Agreement,
the terms of this Amendment shall control. All references to the
Purchase Agreement in this Amendment shall refer to the Purchase
Agreement as amended by this Agreement.
5. Counterparts. This Amendment may be executed in multiple counterparts,
------------
each of which shall be deemed an original, but all of which, together,
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first-above written.
"Santa Xxxxx" SANTA XXXXX REALTY ENTERPRISES, INC.
a Delaware corporation
By: XXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------------
Title: Executive Vice President & CFO
----------------------------------
"Xxxx" TRIZECHAHN CENTERS INC. (formerly known
as "Xxxxxx X. Xxxx, Inc."), a California
corporation
By: XXXXX X. XXXXX
----------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Senior Vice President, Finance
----------------------------------
By: XXXXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title:Senior Vice President and
----------------------------------
General Counsel
----------------------------------
