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Exhibit 10.76
PURCHASE OPTION AGREEMENT
THIS ASSIGNMENT is made as of August 27, 1998 by Crown
NorthCorp, Inc., ("Crown"), on one part, and Xxxxxxx Management Corporation
("Harbert"), and MarRay Investment, LLC ("MarRay"), on the other part (the
"Xxxxxxx Parties").
BACKGROUND:
1. Crown and Harbert have agreed pursuant to a certain letter agreement dated
July 17, 1998, for Xxxxxxx Parties to form, and contribute the U.S. dollar
equivalent of approximately 115,648,804 Swedish kroner ("SK") to the
capital of HMR Sweden, LLC, a Delaware limited liability company ("HMRS"),
enabling HMRS to acquire an interest in Telereit Holding AB, pursuant to a
certain Shareholders' Agreement referenced in the Asset Management
Agreement (the formation and contribution to capital caused by Xxxxxxx
Parties is hereinafter referred to as the "Xxxxxxx Investment"). Crown has
agreed to contribute the U.S. dollar equivalent of approximately
SK19,187,157 to the capital of HMRS.
2. In consideration of the Xxxxxxx Investment, Crown NorthCorp EURO A/S, a
subsidiary of Crown ("Crown EURO"), has entered into a certain Payment of
Fees Agreement ("Payment of Fees Agreement") with Xxxxxxx, made
contemporaneously with this Agreement, providing for payment of certain
fees to Xxxxxxx or its designee.
3. In consideration of Crown EURO's entering into the Payment of Fees
Agreement, Xxxxxxx has agreed to cause the Xxxxxxx Parties to grant the
option to purchase described in this Agreement.
STATEMENT OF AGREEMENT:
1. OPTION. Subject to conditions set forth in ss.2, the Xxxxxxx Parties
hereby grant to Crown the option (the "Option") exercisable during the
Exercise Period and as otherwise provided in ss.3 to purchase the
entire right, title, and interest of the Xxxxxxx Parties in and to HMRS
as provided in ss.4 for the purchase price as provided in ss.5 payable
upon delivery of documents of transfer at a closing as provided in
ss.7.
2. CONDITIONS. The Option may be exercised only:
(a) For the benefit of (i) Strategic Reality Capital Corp.
("SRCC") or (ii) a similar fund or vehicle (a "Similar
Vehicle"), provided that SRCC or the Similar Vehicle,
whichever is applicable, (A) is managed by Xxxxxxx and Crown
(either directly or through respective affiliates), (B) has
initially total equity of at least U.S. $75,000,000, and
(C)Xxxxxxx is given the opportunity to invest on terms similar
to other investors in any Similar Vehicle.
(b) If the exercise is duly authorized by the Board of Directors
of SRCC or the applicable Similar Vehicle, as necessary or
appropriate.
The exercise of the option shall be conclusively deemed for the benefit
of a fund or vehicle if that fund or vehicle receives the right, title,
and interest of the Xxxxxxx Parties in and to HMRS.
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3. EXERCISE. The Option shall be exercised only by Crown's giving written
notice of such exercise to Xxxxxxx during the period ending February
28, 1999 (the "Exercise Period"). The notice of exercise shall specify
(i) the fund or vehicle to receive the right, title, and interest of
the Xxxxxxx Parties in and to HMRS, and (ii) the closing date and time.
4. PROPERTY. The property being purchased upon exercise of the Option
shall be all right, title, and interest of each and all of the Xxxxxxx
Parties in and to HMRS, including all right, title, and interest in and
to (i) profits or losses accruing, and distributions of cash or
property occurring, from and after the date of closing, and (ii)
governance, management, and operations.
5. PURCHASE PRICE. The purchase price shall be equal to that amount which
as of the date of closing pursuant to ss.7 would yield to the Xxxxxxx
Parties an rate of return at the rate of 25% percent per annum on their
Total Investment. For purposes hereof, the "Total Investment" of the
Xxxxxxx Parties means the sum of (i) all capital contributions made by
the Xxxxxxx Parties to HMRS, (ii) the original principal amount of
SK8,000,000 as evidenced by that certain Convertible Secured Promissory
Note dated August 27, 1998, payable by Crown to MarRay, (iii) all
payments by MarRay pursuant to that certain Risk Participation
Agreement dated August 27, 1998, between MarRay and Bankers Trust and
that certain Risk Participation Agreement dated August 27, 1998,
between MarRay and Deutsche Bank AG, London Branch (collectively, the
"Risk Participation Agreements"), (iv) all draws made under those
certain Letters of Credit issued by Bank of America for the account of
MarRay and in favor of Bankers Trust and Deutsche Bank AG, London
Branch, in respect of MarRay's obligations under the Risk Participation
Agreements (the "B of A Letters of Credit"); provided, however, the
Total Investment shall be reduced by any payments or repayments to the
Xxxxxxx Parties for the credit of Crown with respect to the items set
forth in clauses (i) through (iv). The calculation of the rate of
return for purpose of this Agreement shall measure the cash on cash
return on the Total Investment on a calendar monthly basis treating all
contributions and payments made during any calendar month through and
including the date of closing pursuant to ss.7 as if made on the last
day of that calendar month.
6. ASSUMPTION AND SUBSTITUTION. As a condition to the obligation of the
Xxxxxxx Parties to convey their interests in HMRS at the closing
pursuant to ss.7, the fund or vehicle shall (i) assume the obligations
of MarRay under the Risk Participation Agreements and obtain from
Bankers Trust and Deutsche Bank AG, London Branch, a release of MarRay
from such obligations, and (ii) provide a letter or letters of credit
in substitution of the B of A Letters of Credit, which shall be
canceled and returned to Bank of America at the closing.
7. CLOSING. The closing of the purchase upon exercise of the Option
pursuant to this Agreement shall be the date and time specified in the
notice of exercise given pursuant to ss.3, or such other date or time
as Xxxxxxx may agree on behalf of the Xxxxxxx Parties with Crown,
provided that such date occurs on or before the expiration of the
Exercise Period. At the closing, documentation satisfactory to Crown
evidencing the transfer of the property being purchased shall be
delivered to the order of Crown subject to the conditions of ss.2 and
ss.6, and the purchase price shall be paid in U.S. dollars, based upon
the exchange rate for Swedish krona as listed in the currency traded
exchange rates report of The Wall Street Journal (Midwest Edition)
published for the day prior to the date of the notice of exercise (or
if no edition is published for such day, the most recent day prior to
the date of such notice for which an edition was published).
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8. PAYMENT OF FEES AGREEMENT. Simultaneously with closing pursuant to this
Agreement, all obligations of Crown under the Payment of Fees Agreement
shall terminate; provided, however, that at the closing Crown shall pay
to Xxxxxxx or its designee all accrued but unpaid fees.
9. TERM. The term of this Agreement shall end upon expiration of the
Exercise Period pursuant to ss.3.
10. MISCELLANEOUS.
(a) AMENDMENT/WAIVER. No amendment or waiver of any provision of
this Agreement shall be effective against any party hereto
unless in writing signed by that party.
(b) HEADINGS. The captions or headings in this Agreement are not
part of the context of this Agreement, are only labels to
assist in the locating and reading of portions of this
Agreement, and in no way define, limit or describe the scope
or intent of any of the provisions of this Agreement.
(c) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of
which shall constitute one and the same document.
(d) SEVERABILITY. If any provision of this Agreement is or becomes
invalid, illegal, or unenforceable in any jurisdiction for any
reason, such invalidity, illegality, or unenforceability shall
not affect the remainder of this Agreement, and the remainder
of this Agreement shall be construed and enforced as if such
invalid, illegal, or unenforceable portion were not contained
herein.
(e) NOTICE. Any notice to be given to a party hereunder shall be
given by United States certified mail or by personal delivery,
with return receipt by the addressee requested, and addressed
to such party at the address designated below or at any other
address most recently designated by that party for this
purpose:
(1) To Crown:
Crown NorthCorp, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
(2) To the Xxxxxxx Parties:
Xxxxxxx Management Corporation
Xxx Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Any notice shall be deemed given upon the date of receipt
stated in the returned receipt or, if the address most
recently specified by the addressee as provided above is not a
valid address, the date of a returned receipt or other
certification of the United States post office for such
address certifying that the same is not a valid mailing
address and that no forwarding address is known to such post
office.
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(f) SUCCESSORS. This Agreement shall inure to the benefit of, and
be binding upon, each party and that party's respective
successors and assigns.
(g) COMPLETE AGREEMENT. This Agreement contains the entire
agreement between the parties and supersedes any prior
understanding or agreements between them respecting any matter
covered by this Agreement.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Ohio, United States
of America.
Crown NorthCorp, Inc. Xxxxxxx Management Corporation
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxx
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Its: Secretary Its: EVP and CFO
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MarRay Investment, LLC
By Xxxxxxx Management Corporation,
its Manager
By: /s/ Xxxxxxx X. Xxxx
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Its: EVP and CFO
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