EXECUTION COPY
REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT (this "Agreement") is made as of April 28, 2000,
by and among PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership,
having an office at 000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Operating Partnership"), and SL FLORIDA LLC, a Delaware limited liability
company, having an office at c/o Philips International Realty Corp., 000 Xxxxx
Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Company").
W I T N E S S E T H
WHEREAS, Palm Mile Corp., a New York corporation ("PMC") and Xxxxxx
Xxxxxx, an individual ("Xxxxxx"), are the sole members of Company;
WHEREAS, as of August 8, 1997, PMC and PL Palm Springs, L.P., a Delaware
limited partnership ("PL Palm Springs") in which Xxxxxx owned a 9.7% limited
partnership interest, had owned, respectively, a 5% general partnership interest
and 51.5% limited partnership interest in Palm Springs Mile Associates, Ltd., a
Florida limited partnership ("Palm Springs Ltd");
WHEREAS, as of December 31, 1997, PMC and PL Palm Springs had contributed
and/or assigned their respective interests in Palm Springs Ltd to the Operating
Partnership in exchange for, respectively, 58,425 Operating Partnership units
and 601,779 Operating Partnership units;
WHEREAS, thereafter, PL Palm Springs distributed all of its 601,779
Operating Partnership units to its partners, with 9.7% of such units, or 58,372
in total, being distributed to Xxxxxx;
WHEREAS, PMC and Xxxxxx currently own, respectively, 58,425 Operating
Partnership units (the "PMC Units") and 137,125 Operating Partnership units (the
"Xxxxxx Units");
WHEREAS, prior to the redemption described in Section 1 below, PMC and
Xxxxxx shall contribute and/or assign all of the PMC Units and Xxxxxx Units
(together, the "OP Units") to the Company;
WHEREAS, among those partnership and membership interests in various
partnerships and limited liability companies which own real properties that it
currently owns (individually, a "Property Partnership" and collectively, the
"Property Partnerships"), Operating Partnership currently owns a 99.99% limited
partnership interest (the "Palm Springs Ltd Interest") in Palm Springs Ltd;
WHEREAS, Philips Palm Springs Sub-VIII, Inc., a Delaware corporation
("Philips Sub-VIII") and a wholly-owned subsidiary of Philips International
Realty Corp., a Maryland corporation ("Philips Corp."), owns a .01% general
partnership interest in Palm Springs Ltd;
WHEREAS, Palm Springs Ltd owns the undivided fee interest in the four
parcels comprising that certain real property located in Dade County, Florida as
more particularly described on Schedule A annexed hereto (the "Property");
WHEREAS, prior to the Closing Date, Operating Partnership and Philips
Corp. shall have caused Palm Springs Ltd to have contributed, in fee, undivided
interests in two of the parcels comprising the Property referred to as
Components 1 and 2 ("Shared Parcels") to two (2) separate limited liability
companies (each, a "Palm Springs LLC" and, together, the "Palm Springs LLCs")
all of the interests of each of which shall be distributed to Xxxxx Xxxxxxxx and
Xxxx Xxxxxxxx;
WHEREAS, prior to the Closing Date, the Palm Springs LLCs and Palm Springs
Ltd shall have entered into a tenancy in common agreement ("Tenancy Agreement")
with respect to the Shared Parcels, which agreement shall be in form and
substance reasonably acceptable to the parties;
WHEREAS, immediately prior to the redemption described in Section 1 below,
the portion of the Property owned by Palm Springs Ltd shall have an equity value
of not less than $31,679,081 and shall be subject to an amount of debt not less
than $58,229,728 which debt shall have such terms and conditions no less
favorable to Palm Springs, Ltd than the terms on conditions set forth on
Schedule F attached hereto;
WHEREAS, in the manner set forth herein, the Operating Partnership will
redeem all of the OP Units that the Company shall own and, in exchange therefor,
the Operating Partnership shall distribute to the Company a 10% partnership
interest in Palm Springs Ltd, as more particularly set forth herein;
WHEREAS, simultaneously with the redemption described in Section 1 below,
the Operating Partnership shall also distribute a 90% limited partnership
interest in Palm Springs Ltd to Xxxxxx Xxxxxxxx in redemption of all of his
units in Operating Partnership, and Palm Springs Ltd shall distribute to Philips
Sub-VIII an amount of cash to Philips Sub-VIII equal to the equity value of its
.01% general partnership interest in Palm Spring Ltd in complete redemption of
such interest; and
WHEREAS, upon its receipt of its Assigned Interest (as defined below),
Company shall become the general partner of Palm Springs Ltd; and
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and the mutual
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the mutual receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Redemption. At the Closing (as defined in Section 2), Operating
Partnership hereby agrees to redeem, and Company hereby agrees to have
redeemed, all of the OP Units
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which it shall own on the Closing Date free and clear of any and all liens
or other encumbrances, in exchange for which the Operating Partnership
shall distribute and/or assign to Company a ten percent (10%) general
partnership interest in Palm Springs Ltd ("Assigned Interest") having an
equity value of not less than $3,568,788 and, in connection therewith,
Palm Springs Ltd shall have sufficient debt outstanding that will be
allocated to Company (including, if necessary, by Palm Springs Ltd having
made available to Company sufficient debt for it to guarantee or indemnify
through the execution of one or more "bottom dollar" guarantees or
indemnities) so that Company shall not recognize any gain or income as a
result of the distribution and/or assignment of the Assigned Interest.
2. Closing. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxx Xxxxxxx
Xxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, on that date and at the time prescribed for such Closing as set
forth in Section 6.2 of the Group B Agreement (as defined below) (the
"Closing Date").
3. Representations, Warranties and Covenants.
3.01 Operating Partnership hereby represents and warrants to Company as
follows:
(a) Operating Partnership is a duly formed and validly existing
limited partnership organized and in good standing under the
laws of the State of Delaware, and Palm Springs Ltd is a duly
formed and validly existing limited partnership organized and
in good standing under the laws of the State of Florida.
(b) Operating Partnership has or shall have by the Closing Date
the full legal right, power and authority to execute and
deliver this Agreement and Operating Partnership Documents (as
defined in Section 4.01) to consummate the transactions
contemplated hereby and to perform its obligations hereunder
and under Operating Partnership Documents.
(c) This Agreement and Operating Partnership Documents do not and
will not (I) contravene any provision of the Amended and
Restated Limited Partnership Agreement of Operating
Partnership ("Operating Partnership Agreement"), the Amended
and Restated Limited Partnership Agreement of Palm Springs
Mile Associates, Ltd ("Palm Springs Ltd Partnership
Agreement"), the operating agreement, if any, of any of the
Palms Springs LLCs (each of which, a "Palm Springs LLC
Agreement"), the Tenancy Agreement or any partnership or
operating agreement of any of their respective subsidiaries or
affiliates, or any judgment, order, decree, writ or injunction
issued against Operating Partnership, Palm Springs Ltd, any
Palms Springs LLC or any of their respective subsidiaries or
affiliates; or (II) materially violate a material provision of
any law or governmental
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ordinance, rule, regulation, order or requirement
(collectively, "Laws") to which Operating Partnership, Palm
Springs Ltd, any Palm Springs LLC or any of their respective
subsidiaries or affiliates is or will be subject, except such
violations as would not have a material adverse effect on any
of the transactions contemplated hereby if finally determined
adversely to such party. The consummation of the transactions
contemplated hereby will not result in a breach or constitute
a default or event of default by Operating Partnership, Palm
Springs Ltd, any Palm Springs LLC or any of their respective
subsidiaries or affiliates under any agreement to which any of
them or any of their assets are or will be subject or bound
(including, without limitation, Operating Partnership
Agreement, the Tenancy Agreement, any Palm Springs LLC
Agreement or any of the Property) and will not result in a
violation of any Laws to which Operating Partnership, Palm
Springs Ltd, any Palm Springs LLC or any of their respective
subsidiaries or affiliates is or will be subject, except such
violations as would not have a material adverse effect on the
transaction contemplated hereby if finally determined
adversely to Operating Partnership, Palm Springs Ltd, any Palm
Springs LLC or any of their respective subsidiaries or
affiliates.
(d) Operating Partnership owns the Assigned Interest free and
clear of any and all liens and encumbrances.
(e) Upon Operating Partnership's delivery of the assignment of the
Assigned Interest to Company in the manner set forth on
Schedule C (collectively, the "Assignment") and all of the
other Operating Partnership Documents, good and valid title to
the Assigned Interest will pass to Company.
(f) There are no statutory or contractual preemptive rights,
rights of refusal or options with respect to the transfer
and/or assignment of any portion of the Assigned Interest.
(g) No representation or warranty by Operating Partnership in this
Agreement and no statement contained herein or in any
document, certificate, or other writing furnished or to be
furnished by Operating Partnership to Company pursuant to the
provisions hereof or in connection with the transactions
contemplated hereby contains or will contain any untrue
statement of material fact or omits or will omit to state any
material fact necessary in order to make the statements herein
or therein not misleading. Operating Partnership has disclosed
to Company all facts known or reasonably available to
Operating Partnership that are material to the transactions
contemplated herein.
(h) Immediately prior to the Closing Date, Palm Springs Ltd will
own fee title to the Property which shall have an equity value
of not less than
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$31,679,081 and shall be subject to an amount of debt not less
than $58,229,728 and which debt shall have such terms and
conditions no less favorable to Palm Springs Ltd then the
terms and conditions set forth on Schedule F.
3.02 Company hereby represents and warrants to the Operating Partnership
as follows:
(a) Company is a duly formed and validly existing limited
liability company organized and in good standing under the
laws of the State of Delaware, and this Agreement and Company
Documents do not and will not contravene any provision of its
operating agreement.
(b) Company has the full legal right, power and authority to
execute and deliver this Agreement and Company Documents, to
consummate the transactions contemplated hereby, and to
perform its obligations hereunder and under Company Documents.
(c) This Agreement and Company Documents do not and will not
contravene any judgment, order, decree, writ or injunction
issued against Company, or materially violate a material
provision of any Law applicable to Company, except such
violations as would not have a material adverse effect on any
of the transactions contemplated hereby if finally determined
adversely to Company. Company hereby represents and warrants
that the consummation of the transactions contemplated hereby
will not result in a breach or constitute a default or event
of default by Company under any agreement to which Company or
any of its assets is subject or bound and will not result in a
violation of any Laws applicable to Company, except such
violations as would not have a material adverse effect on the
transactions contemplated hereby if finally determined
adversely to Company.
(d) Company will own on the Closing Date the OP Units free and
clear of any and all liens and encumbrances.
(e) Company and its members have had the opportunity to ask
questions and receive financial information concerning the
business and value of Palm Springs Ltd, the Assigned Interest
and the Property and are sophisticated in business financial
matters and understands the benefits and risks of the
investment decision contemplated hereby. Company and its
members accept and agree that the Assigned Interest to be
received hereunder represents fair value for the OP Units to
be exchanged hereunder. Company and its members acknowledge
that, were this transaction not to occur, the value in the
future of the Assigned Interest and the OP Units would be
different than their respective value today.
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(f) No representation or warranty by Company in this Agreement and
no statement contained herein or in any document, certificate,
or other writing furnished or to be furnished by Company to
Operating Partnership pursuant to the provisions hereof or in
connection with the transactions contemplated hereby contains
or will contain any untrue statement of material fact or omits
or will omit to state any material fact necessary in order to
make the statements herein or therein not misleading. Company
has disclosed to Operating Partnership all facts known or
reasonably available to Company that are material to the
transactions contemplated herein.
3.03 Between the date first written above and the Closing Date, (A) Palm
Springs Ltd shall not enter into, renew, modify, terminate or
otherwise amend any lease or other document affecting the Property
without the prior consent of Company in each instance, which consent
shall not be unreasonably withheld or delayed and which consent (or
denial of consent in which case Company shall also include the
reasons for such denial) shall be furnished, in writing, by Company
to Palm Springs Ltd by no later than five days following Company's
receipt of written notice of Palm Springs Ltd's desire to enter
into, renew, modify, terminate or otherwise amend any lease or other
document affecting the Property; Company's consent shall be deemed
to have been granted if Company fails to furnish notice, in writing,
to Palm Springs Ltd of Company's denial of consent (and the reasons
for such denial) by the end of such five-day period; (B) Palm
Springs Ltd shall not enter into any property operating maintenance
or service or other contracts requiring more than thirty (30) days
notice to terminate; and (C) Palm Springs Ltd shall continue to
maintain and repair the Property as in its normal course of
business.
4. Conditions Precedent to Closing.
4.01 Operating Partnership's obligation under this Agreement to
consummate the transactions contemplated herein is subject to the
fulfillment of each of the following conditions.
(a) The representations and warranties of Company contained herein
shall be true, accurate and correct in all material respects
as of the Closing Date, except to the extent they expressly
relate only to an earlier date.
(b) All consents and approvals of governmental authorities and
parties to agreements to which Company is a party or by which
any asset owned by Company is bound that are required with
respect to the consummation of the transactions contemplated
by this Agreement shall have been obtained and copies thereof
shall have been delivered to Operating Partnership at or prior
to the Closing.
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(c) On or prior to the Closing Date, (i) Company shall not have
applied for or consented to the appointment of a receiver,
trustee or liquidator for itself or any of its assets unless
the same shall have been discharged prior to the Closing Date,
and no such receiver, liquidator or trustee shall have
otherwise been appointed, unless same shall have been
discharged prior to the Closing Date, (ii) Company shall not
have admitted in writing an inability to pay its debts as they
mature, (iii) Company shall not have made a general assignment
for the benefit of creditors, (iv) Company shall not have been
adjudicated a bankrupt or insolvent, or had a petition for
reorganization granted with respect to Company, (v) Company
shall not have filed a voluntary petition seeking
reorganization or an arrangement with creditors or taken
advantage of any bankruptcy, reorganization, insolvency,
readjustment or debt, dissolution or liquidation law or
statute, or filed an answer admitting the material allegations
of a petition filed against it in any proceeding under any
such law or statute, or had any petition filed against it in
any proceeding under any such law or statute unless the same
shall have been dismissed, canceled or terminated prior to the
Closing Date.
(d) Philips Corp. shall have received shareholder approval for the
transactions hereunder.
(e) This Agreement shall not have been terminated, if expressly
permitted herein.
(f) There shall be no litigation or administrative agency or other
governmental proceeding of any kind whatsoever, pending or
threatened, which would materially and adversely affect the OP
Units.
(g) The closing of title (the "Group A Closing") under and
pursuant to that certain Purchase and Sale Agreement (the
"Group A Agreement") dated April 28, 2000, by and among Xxxxxx
Park Associates, LLC, North Shore Triangle, LLC, Philips
Yonkers, LLC, Xxxxxxx Xxxxx, LLC, Philips Shopping Center
Fund, L.P. and Philips Xxxx Xxxx Associates, L.P.,
collectively as Seller, and Kimco Income Operating
Partnership, L.P., as Purchaser, for each Property or Ground
Lease (each as defined in the Group A Agreement) shall have
occurred or shall have been excluded or postponed pursuant to
the terms of the Group A Agreement.
(h) While the closing of title (the "Group B Closing") under and
pursuant to that certain Asset Contribution, Purchase and Sale
Agreement dated April 28, 2000 (the "Group B Agreement"), by
and among Operating Partnership, Philips Corp., Certain
Affiliated Parties Signatory Thereto, KIR Acquisition, LLC,
and Kimco Income Operating Partnership, L.P., shall not be
scheduled to occur, and shall not occur, until at least one
day
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following the Closing Date, all of the material conditions to
the Group B Closing required to have been satisfied as of the
day immediately prior to the Closing Date shall have been
satisfied or waived.
4.02 Company's obligation under this Agreement to consummate the
transactions contemplated herein is subject to the fulfillment of
each of the following conditions.
(a) The representations and warranties of the Operating
Partnership contained herein shall be true, accurate and
correct in all material respects as of the Closing Date,
except to the extent they relate only to an earlier date.
(b) All consents and approvals of governmental authorities and
parties to agreements to which Operating Partnership, Palm
Springs Ltd, Philips Sub-VIII or any Property Partnership is a
party or by which any asset of Operating Partnership, Palm
Springs Ltd, Philips Sub-VIII or any Property Partnership is
bound (including any of the Property) that are required with
respect to the consummation of the transactions contemplated
by this Agreement shall have been obtained and copies thereof
shall have been delivered to Company at or prior to the
Closing.
(c) On or prior to Closing Date, (i) neither Operating
Partnership, Palm Springs Ltd, Philips Sub-VIII nor any
Property Partnership shall have applied for or consented to
the appointment of a receiver, trustee or liquidator for
itself or any of its assets unless the same shall have been
discharged prior to the Closing Date, and no such receiver,
liquidator or trustee shall have otherwise been appointed,
unless same shall have been discharged prior to the Closing
Date, (ii) neither Operating Partnership, Palm Springs Ltd,
Philips Sub-VIII nor any Property Partnership shall have
admitted in writing an inability to pay its debts as they
mature, (iii) neither Operating Partnership, Palm Springs Ltd,
Philips Sub-VIII nor any Property Partnership shall have made
a general assignment for the benefit of creditors, (iv)
neither Operating Partnership, Palm Springs Ltd, Philips
Sub-VIII nor any Property Partnership shall have been
adjudicated a bankrupt or insolvent, or had a petition for
reorganization granted with respect to itself, (v) neither
Operating Partnership, Palm Springs Ltd, Philips Sub-VIII nor
any Property Partnership shall have filed a voluntary petition
seeking reorganization or an arrangement with creditors or
taken advantage of any bankruptcy, reorganization, insolvency,
readjustment or debt, dissolution or liquidation law or
statute, or filed an answer admitting the material allegations
of a petition filed against it in any proceedings under any
such law or statute, or had any petition filed against it in
any proceeding under any of such law or statute unless the
same shall have been dismissed, canceled or terminated prior
to the Closing Date.
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(d) This Agreement shall not have been terminated, if expressly
permitted herein.
(e) There shall be no litigation or administrative agency or other
governmental proceeding of any kind whatsoever, pending or
threatened, which would materially and adversely affect Palm
Springs Ltd, any portion of the Assigned Interest or any of
the Property.
(f) While the Group B Closing shall not be scheduled to occur, and
shall not occur, until at least one day following the Closing
Date, all of the material conditions to the Group B Closing
required to have been satisfied as of the day immediately
prior to the Closing Date shall have been satisfied or waived.
(g) Immediately following the redemption described in Section 1
above, there shall be not less than $58,229,728 of debt
encumbering the Property, such debt shall have such terms and
conditions no less favorable to Palm Springs Ltd than the
terms and conditions set forth on Schedule F attached hereto,
and that Company shall be allocated a sufficient amount of
debt of Palm Springs Ltd (including, if necessary, Palm
Springs Ltd having made available to Company sufficient debt
for it to guarantee or indemnify through the execution of one
or more "bottom dollar" guarantees or indemnities) so that
Company shall not recognize any income as a result of the
distribution of the Assigned Interest to Company in redemption
of its OP Units.
(h) Immediately prior to the redemption described in Section 1
above, the Property shall have an equity value of at least
$31,679,081.
(i) Immediately prior to the redemption under Section 1 above, the
entire interest of Philips Sub-VIII in Palm Springs Ltd shall
have been redeemed for cash equal to the then equity value of
Philips Sub-VIII entire partnership interest in Palm Springs
Ltd and Philips Sub-VIII shall no longer be a partner of Palm
Springs Ltd.
5. Delivery of Documents at Closing.
5.01 Deliveries by Operating Partnership. Operating Partnership agrees to
deliver (or cause to be delivered) to Company at the Closing the
following agreements and documents ("Operating Partnership
Documents"), all satisfactory in form and substance to Company:
(a) The Assignment, duly executed by Operating Partnership;
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(b) A certificate of good standing and/or subsistence, dated not
more than thirty (30) days prior to the Closing Date, issued
by the Secretary of State of the State of Delaware with
respect to Operating Partnership, the State of Maryland with
respect to Philips Corp. and the State of Florida with respect
to Palm Springs Ltd;
(c) Certified copy of a consent duly adopted by the general
partner of Operating Partnership authorizing the execution,
delivery and performance of this Agreement and of each of the
Operating Partnership Documents;
(d) General release from Operating Partnership and Philips Corp in
the form attached as Schedule D, duly executed by Operating
Partnership and Philips Corp.; and
(e) Such other consents, documents and instruments as may be
reasonably required to effectuate the terms of this Agreement
and to comply with the terms hereof.
5.02 Deliveries by Company. Company agrees to deliver (or cause to be
delivered) to Operating Partnership at the Closing the following
agreements and documents ("Company Documents"), all satisfactory in
form and substance to Operating Partnership:
(a) The Assignment, duly executed by Company;
(b) A certificate of good standing and/or subsistence, dated not
more than thirty (30) days prior to the Closing, issued by the
Secretary of State of the State of Delaware;
(c) Certified copies of a resolution and unanimous consent duly
adopted by all of the members and managers, if any, of Company
authorizing the execution, delivery and performance by Company
of this Agreement and each of Company Documents;
(d) General release from Company, PMC and Xxxxxx in the form
attached as Schedule E, duly executed by Company, PMC and
Xxxxxx; and
(e) Such other consents, documents and instruments as may be
reasonably required to effectuate the terms of this Agreement
and to comply with the terms hereof.
5.03 Further Assurances. After the Closing, at the request of either
party hereto, and without further conditions or consideration, each
party shall execute and deliver from time to time such other
instruments, documents, agreements and/or take such other actions as
the other party may reasonably request in order to more
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effectively consummate the transactions contemplated herein. This
Section 5.03 shall survive the Closing.
6. Remedies. If any party hereto shall be in default of or breach any of its
respective obligations hereunder, then each party shall have such rights or
remedies available at law and/or in equity, including, without limitation, the
right of specific performance.
7. Notices. All notices, requests, demands, consents or waivers and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered by (i) hand, (ii) facsimile (with
immediate confirmation), (iii) a nationally recognized overnight courier for
next business day delivery (charges prepaid), or (iv) certified or registered
mail, return receipt requested (postage prepaid):
If to Operating Partnership, to:
Philips International Realty Corp.
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Company, as follows:
SL Florida LLC
c/o Philips International Realty Corp.
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
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With a copy to:
XxXxxxxxx Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or, in each case, to such other person or address as any party shall
furnish to the other parties in writing. Notices shall be deemed to be
delivered upon receipt or rejection.
8. Confidentiality.
8.01 (a) Operating Partnership, on behalf of itself and its
Representatives (as defined in Section 8.03(a)), agrees that, prior
to the Closing, all information relating to this Agreement shall be
kept strictly confidential by Operating Partnership and its
Representatives and shall not, without the prior written consent of
Company, be disclosed by Operating Partnership or its
Representatives, in any manner whatsoever, in whole or in part, and
will not be used by Operating Partnership or its Representatives,
directly or indirectly, for any purpose other than evaluating the
transactions contemplated hereunder. The provisions of this Section
8.01(a) shall in no event apply to any information which is a matter
of public record and shall not prevent Operating Partnership,
Philips Corp. or any of their Affiliates or Representatives (i) from
complying with any Law to which any of them is subject and (ii) from
making any disclosure required to be made by any of them which any
of them deem appropriate to the public, the shareholders of Philips
Corp. or any other person or persons pursuant to any Securities and
Exchange Law or other Law.
(b) Company, on behalf of itself and its Representatives, agrees
that, prior to the Closing, all information relating to this
Agreement shall be kept strictly confidential by Company and its
Representatives and shall not, without the prior written consent of
the Operating Partnership, be disclosed by Company or its
Representatives in any manner whatsoever, in whole or in part, and
will not be used by Company or its Representatives, directly or
indirectly, for any purpose other than evaluating the transactions
contemplated hereunder. The provisions of this Section shall in no
event apply to any information which is a matter of public record
and shall not prevent Company or any of its Representatives from
complying with any Law to which Company or any such Representative
is subject.
8.02 (a) Operating Partnership shall indemnify and hold Company and its
Representatives harmless from and against any and all claims,
demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees
and disbursements) suffered or incurred by
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Company or any Affiliate of Company or any Representative of Company
and arising out of or in connection with a breach by Operating
Partnership or any Affiliate or Representative of Operating
Partnership of any provision of this Section 8.
(b) Company shall indemnify and hold the Operating Partnership and
its Representatives harmless from and against any and all claims,
demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees
and disbursements) suffered or incurred by the Operating
Partnership, any Affiliate and arising out of or in connection with
a breach by Company or any Affiliate or Representative of Company of
any provision of this Section 8.
8.03 As used in this Agreement, the following terms shall have the
following meanings:
(a) "Representative" shall mean, with respect to any person, any
member, shareholder, partner, manager, director, officer, trustee,
principal, agent, employee, contractor, broker, and/or other
representative of such person, including, the attorneys, accountants
and financial advisors of the Operating Partnership or Company.
(b) "Affiliate" shall mean, with respect to any person, any direct
or indirect subsidiary or other affiliate of such person.
8.04 The provisions of this Section 8 shall survive the Closing.
9. Miscellaneous.
9.01 This Agreement shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular, and
no consent or approval required pursuant to this Agreement shall be
effective, unless the same shall be in writing and signed by or on
behalf of the party to be affected thereby.
9.02 This Agreement may not be assigned by any party hereto.
9.03 This Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and to their respective heirs, executors,
administrators, successors and permitted assigns.
9.04 All prior statements, understandings, representations and agreements
between the parties, oral or written, are superseded by and merged
into this Agreement, which alone fully and completely expresses the
agreement between them in connection with this transaction and which
is entered into after full investigation, neither party relying upon
any statement, understanding, representation or agreement
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made by the other not embodied in this Agreement. This Agreement
shall be given a fair and reasonable construction in accordance with
the intentions of the parties hereto, and without regard to or aid
of canons requiring construction against the party drafting this
Agreement.
9.05 Except as otherwise expressly provided herein, all of the parties'
representations, warranties, covenants and agreements herein shall
merge into the documents and agreements executed at the Closing and
shall not survive the Closing.
9.06 No failure or delay of either party in the exercise of any right or
remedy given to such party hereunder or the waiver by any party of
any condition hereunder for its benefit (unless the time specified
herein for exercise of such right or remedy has expired) shall
constitute a waiver of any other or further right or remedy nor
shall any single or partial exercise of any right or remedy preclude
other or further exercise thereof or any other right or remedy. No
waiver by any party of any breach hereunder or failure or refusal by
any other party to comply with its obligations shall be deemed a
waiver of any other or subsequent breach, failure or refusal to so
comply.
9.07 Neither this Agreement nor any memorandum thereof shall be recorded
by either party hereto and any attempted recordation hereof shall be
void and shall constitute a default under this Agreement.
9.08 This Agreement may be executed in one or more counterparts, each of
which so executed and delivered shall be deemed an original, but all
of which taken together shall constitute but one and the same
instrument.
9.09 The caption headings in this Agreement are for convenience only and
shall not be construed to modify, explain or alter any of the terms,
covenants or conditions herein contained. Any and all schedules and
exhibits referenced herein are by this reference hereby made a part
hereof and incorporated herein.
9.10 This Agreement shall be interpreted and enforced in accordance with
the laws of the State of New York, without reference to its
conflicts of law principles and, in the event of any dispute in
connection with this Agreement, venue shall be in the federal and
state courts located in New York County.
9.11 If the last day of the period prescribed herein for the giving of
any notice, election, consent, approval, demand, objection or
request or the submission of any documents by any party hereunder
shall fall on a Saturday, Sunday or any day observed as a public
holiday by the federal government or the State of New York, then
such period shall be deemed to be extended to the immediately
following day which is not a Saturday, Sunday or such public
holiday. The term "business day" as used in this Agreement shall
mean any day other than Saturday, Sunday or any day observed as a
public holiday by the federal government or the State of New York.
14
9.12 Unless otherwise specified herein, for purposes of this Agreement
(a) references to persons or parties include their permitted
successors and assigns; (b) references to modifications or
amendments shall in all events mean modifications and amendments;
(c) references to statutes are to be construed as including all
rules and regulations adopted pursuant to the statute referred to
and all statutory provisions consolidating, amending or replacing
the statute referred to; (d) references to agreements and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto entered into from time to
time after the date hereof; (e) the words "include" or "including",
and words of similar import, shall be deemed to be followed by the
words "but not limited to" or "without limitation"; (f) the words
"hereto", "herein", "hereof' and "hereunder", and words of similar
import, refer to this Agreement in its entirety; and (g) unless
otherwise specified herein, all references to Sections are to
Sections of this Agreement. Terms defined herein may be used in the
singular or the plural; when used in the singular and preceded by
"a", "an" or "any", such term shall be taken to indicated one or
more members of the relevant class; and when used in the plural,
such term shall be taken to indicate all members of the relevant
class.
9.13 If any provision of this Agreement shall be unenforceable or
invalid, the same shall not affect the remaining provisions of this
Agreement and to this end the provisions of this Agreement are
intended to be and shall be severable.
9.14 The parties hereto hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on
any matter arising out of or in any way connected with this
Agreement.
9.15 This Agreement shall not be binding upon any party unless and until
each of the parties shall have executed and delivered a fully
executed original of this Agreement to the other parties.
9.16 All schedules attached hereto are hereby incorporated herein by
reference and made a part hereof.
9.17 In the event that any party hereto brings an action or proceeding
for a declaration of the rights of the parties under this Agreement,
for injunctive relief, or for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement or the
transactions contemplated hereby, the prevailing party in any such
action shall be entitled to an award of reasonable attorneys' fees,
disbursements and any court costs incurred in connection with such
action or proceeding, in addition to any other damages or relief
awarded, regardless of whether such action proceeds to final
judgment.
15
9.18 The Palm Springs Ltd Partnership Agreement shall be amended and
restated to reflect the transactions set forth herein. It is hereby
intended that Company's tax attributes attributable to the OP Units
shall be preserved in the Assigned Interest. In connection
therewith, the Palm Springs Ltd Partnership Agreement shall be
amended so as to reflect that Company shall have an initial capital
account balance of $3,568,788 and a ten percent (10%) "profit"
percentage interest in Palm Springs Ltd and that Company shall be
allocated a sufficient amount of debt of Palm Springs Ltd
(including, if necessary, by Palm Springs Ltd having made available
to Company sufficient debt for it to guarantee or indemnify through
the execution of one or more "bottom dollar" guarantees or
indemnities) so that Company shall not recognize any income or gain
under Section 752 or 465 of the Internal Revenue Code of 1986, as
amended.
10. As Is
10.01 Company expressly acknowledges and agrees that, subject to and in
accordance with the terms and conditions of this Agreement, in connection with
distribution of the Assigned Interest to Company, Company accepts the Property
on an "as-is-where-is and with all faults" basis.
10.02 This Agreement, as written, contains all the terms of the agreement
entered into between the parties as of the date hereof, and Company acknowledges
that neither Operating Partnership nor any of its Affiliates or Representatives,
has made any representations or held out any inducements to Company, and
Operating Partnership hereby specifically disclaims any representation, oral or
written, past, present or future, other than those specifically set forth in
this Agreement. Without limiting the generality of the foregoing, Company has
not relied on any representations or warranties, and neither Operating
Partnership nor any of its Affiliates or Representatives has or is willing to
make any representations or warranties, express or implied, other than as may be
expressly set forth herein, as to: (a) the status of title to the Property; (b)
the current or future real estate tax liability, assessment or valuation of the
Property; (c) the potential qualification of the Property for any and all
benefits conferred by any Laws whether for subsidies, special real estate tax
treatment, insurance, mortgages or any other benefits, whether similar or
dissimilar to those enumerated; (d) the compliance of the Property in its
current or any future state with applicable Laws or any violations thereof,
including, without limitation, those relating to access for the handicapped,
environmental or zoning matters, and the ability to obtain a change in the
zoning or a variance in respect to the Property's non-compliance, if any, with
zoning Laws; (e) the nature and extent of any right-of-way, lease, possession,
lien, encumbrance, license, reservation, condition or otherwise; (f) the
availability of any financing for the purchase, alteration, rehabilitation or
operation of the Property from any source, including, without limitation, any
government authority or any lender; (g) the current or future use of the
Property; (h) the present and future condition and operating state of any
personal property and the present or future structural and physical condition of
the buildings or other improvements located on the Property, their suitability
for rehabilitation or renovation, or the need for expenditures for capital
improvements, repairs or replacements thereto; (i) the viability, financial
condition or continued
16
occupancy of any tenant; (j) the status of the leasing market in which any
Property is located; or (k) the actual or projected income or operating expenses
of the Property.
10.03 Company or anyone claiming by, through or under Company, hereby
fully and irrevocably releases Operating Partnership, its Affiliates and
Representatives, from any and all claims that it may now have or hereafter
acquire against Operating Partnership, its Affiliates or Representatives for any
cost, loss, liability, damage, expense, action or cause of action, whether
foreseen or unforeseen, arising from or related to any construction defects,
errors or omissions on or in the Property, the presence of environmentally
hazardous, toxic or dangerous substances, or any other conditions (whether
patent, latent or otherwise) affecting the Property. Company further
acknowledges and agrees that this release shall be given full force and effect
according to each of its expressed terms and provisions, including, but not
limited to, those relating to unknown and suspected claims, damages and causes
of action.
10.04 This Section 10 shall survive the Closing or sooner termination of
this Agreement.
[The remainder of this page is intentionally left blank.]
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered all on the day and year first above written.
OPERATING PARTNERSHIP:
PHILIPS INTERNATIONAL REALTY, L.P., a
Delaware limited partnership
By: Philips International Realty Corp., a
Maryland corporation, its general partner
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Petra
Title: President
COMPANY:
SL FLORIDA LLC, a Delaware limited liability
company
By: /s/ Xxxxxx Xxxxxx
------------------
Xxxxxx Xxxxxx, its Member
By: Palm Mile Corp., a New York corporation,
its Member
By: /s/ Xxxxxx Xxxxxx
------------------
Name: Xxxxxx Xxxxxx
Title: Sole Shareholder
The undersigned authorize and consent to (both on behalf of themselves and
Palm Springs Ltd) all of the transactions contemplated by this Agreement and all
of the provisions under this Agreement, and each shall (and shall cause Palm
Springs Ltd to) take any and all actions and execute and deliver any and all
instruments, documents or agreements and to otherwise extend their full
cooperation so as to effectuate and satisfy and cause the effectuation of and
satisfaction of any and all of the representations, warranties, covenants and
obligations made herein.
PHILIPS INTERNATIONAL REALTY, L.P., a
Delaware limited partnership
By: Philips International Realty Corp., a
Maryland corporation, its general partner
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Petra
Title: President
PALM SPRINGS MILE ASSOCIATES, LTD., a Florida
limited partnership
By: Philips Palm Springs Sub-VIII, Inc., a
Delaware corporation, its general partner
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Petra
Title: President
PHILIPS PALM SPRINGS SUB-VIII, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Petra
Title: President
PHILIPS INTERNATIONAL REALTY CORP., a
Maryland corporation
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Petra
Title: President
By no later than ten (10) days prior to the Closing Date, PMC hereby
agrees that it shall have contributed and/or assigned all of the PMC Units to
Company free and clear of any and all liens and encumbrances and Xxxxxx hereby
agrees that she shall have contributed and/or assigned all of the Xxxxxx Units
to the Company free and clear of any and all liens and encumbrances.
/s/ Xxxxxx Xxxxxx
-------------------------------
XXXXXX XXXXXX
PALM MILE CORP., a New York
corporation
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Sole Shareholder
SCHEDULE A
LEGAL DESCRIPTION OF THE PROPERTY
[See attached]
SCHEDULE B
INTENTIONALLY DELETED
SCHEDULE C
ASSIGNMENT OF PARTNERSHIP INTEREST
IN PALM SPRINGS MILE ASSOCIATES, LTD.
THIS ASSIGNMENT OF PARTNERSHIP INTEREST (this "Assignment") is made as of
this ___ day of ___________, 2000, by PHILIPS INTERNATIONAL REALTY, L.P., a
Delaware limited partnership, having an office at 000 Xxxxx Xxxxxx, Xxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Assignor"), and SL FLORIDA LLC, a Delaware limited
liability company, having an office at c/o Philips International Realty Corp.,
000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Assignee").
W I T N E S S E T H:
WHEREAS, Assignor owns a 99.99% limited partnership interest in Palm
Springs Mile Associates, Ltd., a Florida limited partnership ("Limited
Partnership");
WHEREAS, Limited Partnership owns undivided interests in those four
parcels comprising that certain real property located in Miami Dade County,
State of Florida as more particularly described on Schedule 1 annexed hereto
(the "Property");
WHEREAS, this Assignment is being made pursuant to that certain Redemption
Agreement dated as of April __, 2000 (the "Redemption Agreement") by and between
Assignor and Assignee, whereby in exchange for all of the units in Assignor
owned by Assignee, Assignor shall distribute to Assignee a 10% general
partnership interest (the "Assigned Interest") in Limited Partnership having an
equity value and being encumbered by such debt as set forth in the Redemption
Agreement, and Assignee shall become the general partner of Limited Partnership;
WHERAS, simultaneously with the distribution of the Assigned Interest to
Assignee, Assignor shall, pursuant to a separate redemption agreement of even
date with the Redemption Agreement, distribute to Xxxxxx Xxxxxxxx a 90% limited
partnership interest in Limited Partnership in exchange for all of the units in
Assignor owned by him and Limited Partnership shall redeem the 0.01% partnership
interest in Limited Partnership owned by Philips Palm Springs Sub-VIII, Inc.,
the general partner of Limited Partnership, for an amount of cash equal to the
equity value of such interest as of immediately prior to this Assignment;
WHEREAS, upon the distribution by Assignor of the Assigned Interest to
Assignee, Assignee shall no longer be a partner in Assignor; and
WHEREAS, the Amended and Restated Limited Partnership Agreement of Limited
Partnership (the "Partnership Agreement") shall be amended and restated to
reflect the
transactions undertaken pursuant to the Redemption Agreement and other
redemption agreements of even date therewith.
NOW, THEREFORE, for Ten ($10) Dollars and other good and valuable
consideration, the mutual receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. All of the recitals set forth above are incorporated herein as if fully
set forth below.
2. Assignor represents and warrants to Assignee that: (a) Assignor is the
record owner of the Assigned Interest, and the Assigned Interest is free
and clear of any lien, claim or encumbrance; (b) Assignor has full right,
power and authority to perform the terms of this Assignment; and (c)
Assignor has not heretofore sold, assigned, transferred, encumbered,
pledged or hypothecated all or any part of the Assigned Interest.
3. Assignor hereby sells, grants, assigns, transfers and conveys to Assignee
all of its legal and beneficial right, title and interest in and to the
Assigned Interest which shall include, without limitation, all right,
title and interest, if any, of Assignor in and to the assets of Limited
Partnership and Assignor's right to receive any past, present or future
profits, gains, losses and distributions of any nature from Limited
Partnership. The Partnership Agreement shall be amended to reflect that
Assignee shall have an initial capital account balance immediately
following Assignor's distribution of the Assigned Interest to Assignee
equal to the equity value of such Assigned Interest as set forth in the
Redemption Agreement, and to reflect that Assignee shall have a "profit"
percentage interest of 10% in respect of the Assigned Interest.
4. Assignee hereby accepts the Assignment of the Assigned Interest and agrees
to assume, fulfill, perform and discharge all the obligations and
liabilities of Assignor with respect to the Assigned Interest, accruing or
obligated to be performed from and after the date hereof.
5. The Assigned Interest shall be subject to the amount of Limited
Partnership's debt as set forth in the Redemption Agreement, and such debt
shall have terms no less favorable to Limited Partnership than those set
forth on Schedule F to the Redemption Agreement.
6. This Assignment shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
7. This Assignment is the final expression of, and contains the entire
agreement between, the parties with respect to the subject matter hereof,
and supersedes all prior understandings with respect thereto.
8. This Assignment may not be modified, changed, supplemented or terminated,
nor may any obligations hereunder be waived, except by written instrument,
signed by the party to be charged or by its agent duly authorized in
writing, or as otherwise expressly permitted herein.
2
9. This Assignment shall be interpreted and enforced in accordance with the
laws of the State of New York without reference to principles of conflicts
of laws.
10. This Assignment may be executed in one or more counterparts, each of which
shall be deemed to be an original Assignment, but all of which, taken
together, shall constitute but one and the same Assignment.
[The remainder of this page is intentionally left blank.]
3
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the date first written above.
ASSIGNOR:
PHILIPS INTERNATIONAL REALTY, L.P., a
Delaware limited partnership
By: Philips International Realty Corp., a
Maryland corporation, its general partner
By:
-----------------------------
Name:
Title:
ASSIGNEE:
SL FLORIDA LLC, a Delaware limited liability
company
By:
------------------------------
Xxxxxx Xxxxxx, its Member
By: Palm Mile Corp., a New York corporation,
its Member
By:
------------------------------
Name: Xxxxxx Xxxxxx
Title: Sole Shareholder
By signing below, Limited Partnership consents to Assignor's assignment of
the Assigned Interest to Assignee pursuant to this Assignment and the Redemption
Agreement and hereby agrees to amend the Partnership Agreement in accordance
with this Assignment and the Redemption Agreement and to admit Assignee as a
general partner of Limited Partnership pursuant to the Partnership Agreement, as
may be amended from time to time.
PALM SPRINGS MILE ASSOCIATES, LTD.,
a Florida limited partnership
By: Philips Palm Springs Sub-VIII, Inc.,
a Delaware corporation, its general partner
By:
------------------
Name:
Title:
SCHEDULE 1
LEGAL DESCRIPTION OF THE PROPERTY
[See attached]
SCHEDULE D
GENERAL RELEASE
FROM OPERATING PARTNERSHIP
RELEASE
TO ALL WHOM THESE PRESENTS
SHALL COME OR MAY CONCERN, KNOW THAT
PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership, and PHILIPS
INTERNATIONAL REALTY CORP., a Maryland corporation, having an office at 000
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on behalf of themselves and
each of their respective direct or indirect subsidiaries, employees, officers,
directors or other affiliates, successors, predecessors and permitted assigns
collectively as RELEASOR,
for good and valuable consideration, receipt of which is hereby acknowledged,
release and discharge
SL FLORIDA LLC, a Delaware limited liability company, having an office at c/o
Philips International Realty Corp., 000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, and any of its direct or indirect subsidiaries, employees, officers,
directors, members or other affiliates, successors, predecessors and permitted
assigns
collectively as RELEASEE
from all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever, in law, admiralty or equity, which
against RELEASEE, RELEASOR, ever had, now have or hereafter can, shall or may,
have for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this Release and relating to,
arising under or in connection with that certain Redemption Agreement dated as
of April __, 2000 by and among RELEASOR and RELEASEE.
This RELEASE may not be changed orally.
[The remainder of this page is intentionally left blank.]
In Witness Whereof, RELEASOR has hereunto set RELEASOR's hand and seal on this
___ day of April, 2000.
RELEASOR:
PHILIPS INTERNATIONAL REALTY, L.P., a
Delaware limited partnership
By: Philips International Realty Corp., a
Maryland corporation, its general partner
By:
----------------------------
Name:
Title:
PHILIPS INTERNATIONAL REALTY CORP., a
Maryland corporation
By:
----------------------------
Name:
Title:
RELEASEE:
SL FLORIDA LLC, a Delaware limited liability
company
By:
----------------------------
Xxxxxx Xxxxxx, its Member
By: Palm Mile Corp., a New York corporation,
its Member
By:
----------------------------
Name: Xxxxxx Xxxxxx
Title: Sole Shareholder
SCHEDULE E
GENERAL RELEASE
FROM COMPANY
RELEASE
TO ALL WHOM THESE PRESENTS
SHALL COME OR MAY CONCERN, KNOW THAT
SL FLORIDA LLC, a Delaware limited liability company, having an office at c/o
Philips International Realty Corp., 000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, and any of its direct or indirect employees, officers, directors,
members or subsidiaries or other affiliates, successors, predecessors and
permitted assigns
collectively as RELEASOR,
for good and valuable consideration, receipt of which is hereby acknowledged,
release and discharge
PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership, and PHILIPS
INTERNATIONAL REALTY CORP., a Maryland corporation, having an office at 000
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on behalf of themselves and
each of their respective direct or indirect subsidiaries, employees, officers,
directors or other affiliates, successors, predecessors and permitted assigns
collectively as RELEASEE
from all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever, in law, admiralty or equity, which
against RELEASEE, RELEASOR, ever had, now have or hereafter can, shall or may,
have for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this Release and relating to,
arising under or in connection with that certain Redemption Agreement dated as
of April __, 2000 by and among RELEASOR and RELEASEE.
This RELEASE may not be changed orally.
[The remainder of this page is intentionally left blank.]
In Witness Whereof, RELEASOR has hereunto set RELEASOR's hand and seal on this
___ day of April, 2000.
RELEASOR:
SL FLORIDA LLC, a Delaware limited liability
company
By:
----------------------------
Xxxxxx Xxxxxx, its Member
By: Palm Mile Corp., a New York corporation,
its Member
By:
----------------------------
Name: Xxxxxx Xxxxxx
Title: Sole Shareholder
RELEASEE:
PHILIPS INTERNATIONAL REALTY, L.P., a
Delaware limited partnership
By: Philips International Realty Corp., a
Maryland corporation, its general partner
By:
--------------------------
Name:
Title:
PHILIPS INTERNATIONAL REALTY CORP., a
Maryland corporation
By:
--------------------------
Name:
Title:
SCHEDULE F
TERMS OF DEBT FINANCING
1. Borrower: Palm Springs Ltd
2. Lender: Prudential Securities Credit Corporation, a Delaware
corporation
3. Loan: [$ 88M] (estimated)
4. Security: First mortgage lien encumbering the Property
5. Securitization:
(a) Property: "Philips Plaza", located in Hialeah, Florida
Rate: Fixed, 225 basis points above 10 year treasury, at 30 year
amortization
LTV: 75/1.3 x DSC
Loan: $ 7.5M (estimated)
(b) Property: "Shops at 00xx Xxxxxx", located in Hialeah, Florida
Rate: Fixed, 205 basis points above 10 year treasury, at 30 year
amortization
LTV: 80/1.25 x DSC
Loan: $ 21.0M (estimated)
(c) Terms for both properties:
-10 year term
-no points
-Lender's standard securitization requirements regarding
structure and administration of loan
-"non recourse"
-no cross collateralization
6. Bridge Loan
Properties: "Mall on the Mile", located in Hialeah, Florida.
"Palm Springs Village", located in Hialeah, Florida.
Loan: $ 60.1M (estimated)
Terms:
-Floating, 200 basis points above LIBOR
-1 year initial term and 1 point fee, or 1 1/2 initial term and 0
0/0 xxxxx xxx (xxxxxxxxx xxxxxxxx)
-xx amortization
-construction loan available
-10% recourse/guaranty, subject to asset sale and elimination of
70% LTV (quarterly review)
