EXHIBIT 10.5
Polaris Towne Center
MEMBERSHIP INTEREST PURCHASE AGREEMENT
This Membership Interest Purchase Agreement (this "Agreement") is made
by and between N.P. Limited Partnership, an Ohio limited partnership, as seller
(the "Seller"); and Glimcher Properties Limited Partnership, a Delaware limited
partnership, as purchaser (the "Purchaser"), to be effective as of the last date
of execution of this Agreement by Seller and Purchaser (the "Effective Date").
Polaris Center, LLC, a Delaware limited liability company (the "Company") also
joins in the execution of this Agreement to evidence its consent to the transfer
of the limited liability interest described in this Agreement and to otherwise
comply with those specific obligations expressly imposed on it by the terms of
this Agreement. The Seller and the Purchaser may be sometimes collectively
referred to herein as the "parties".
RECITALS
A. The Seller owns a 50% limited liability company membership
interest (collectively, the "Interest") in the Company. The
Company owns a community shopping center (the "Center") known
as Polaris Towne Center situated in Delaware County, Ohio.
B. Purchaser and Glimcher PTC, Inc., a Delaware corporation
("Glimcher PTC") are the only other members (collectively, the
"Members" and individually, a "Member") of the Company. The
Company's Members entered into a certain Second Amended and
Restated Operating Agreement dated as of May 12, 2000 (the
"Operating Agreement"). The Operating Agreement has not been
subsequently amended, and that document is the only document
evidencing the Seller's ownership of the Interest and there
are no other documents of whatever nature or kind relating to
the Members' rights and responsibilities as Members in the
Company.
C. The Purchaser desires to purchase and the Seller desires to
sell, the Seller's 50% Interest as Member in the Company on
the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, the sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound, agree as follows.
1. Purchase and Sale of Membership Interest. On the terms and subject to
the conditions of this Agreement, the Purchaser agrees to purchase from
the Seller, and the Seller agrees to sell to the Purchaser, the
Interest in the Company for the price and on the terms set forth in
this Agreement. The transfer (the "Transfer") of the Interest in the
Company shall be completed by Seller's execution of an Assignment of
Membership Agreement (the "Assignment Agreement"), the form of which is
attached hereto as Exhibit A. The Transfer shall be effective upon the
Closing Date (as that term is defined in Section 3 below).
2. Purchase Price. The total purchase price (the "Purchase Price") to be
paid by the Purchaser for the Interest shall be Ten Million Dollars
($10,000,000.00).
3. Payment Terms. Simultaneously with the closing and funding (the
"Closing" or the "Closing Date") of the purchase and sale of the
Interest, the Purchase Price shall be paid by the Purchaser to the
Seller in immediately available federal funds. Prior to the Closing,
the Seller shall provide the Purchaser with wire transfer instructions
so that the total Purchase Price is wire transferred to the Seller.
4. Transfer of the Interest after the Effective Date. After the Effective
Date of this Agreement, the Seller shall not transfer directly or
indirectly all or any part of its Interest in the Company, even if
those transfers are permitted by the terms of the Operating Agreement.
5. Contingencies to Closing. In connection with the execution of this
Agreement, Purchaser also entered into an agreement (the "Polaris Mall
Purchase Agreement") to purchase 100% of the membership interests owned
by seven (7) members which are unrelated to Purchaser (collectively,
the "N.P. Sellers") in Polaris Mall, LLC, a Delaware limited liability
company ("Polaris Mall"). It is the parties' intentions and requirement
that the Closing of this Agreement occur simultaneously with the
closing of the Purchaser's acquisition of all of the N.P. Sellers'
limited liability interests (the "Polaris Mall Interests") in Polaris
Mall, and it shall be a condition precedent to this Agreement that the
N.P. Sellers, in consideration for payment to them as required under
the Polaris Mall Agreement, transfer all of the N.P. Sellers' Polaris
Mall Interests to Purchaser under the terms of the Polaris Mall
Agreement, simultaneously with the Closing of this Agreement.
6. Closing. The Closing shall occur in the Company's offices at 000 Xxxx
Xxx Xxxxxx, Xxxxxxxx, Xxxx on January 5th, 2004. The parties shall
execute a closing settlement statement ("Closing Settlement
Statement"). At the Closing, the parties shall execute and/or deliver
the following documents (collectively, the "Closing Documents") and
other deliveries required by the terms of this Agreement, all of which
are set forth below:
Referred to in
Agreement/Document/Delivery Agreement Section Delivered By
------------------------------------ ------------------ ------------------
(a) Assignment Agreement Section 1 Seller
(b) Purchase Price Section 2 Purchaser
(c) Closing Settlement Statement Section 6 Company
(d) Good Standing Certificate Section 8(a)(v) Seller
(e) Good Standing Certificate Section 8(b)(iii) Purchaser
(f) Such other documents Section 9 Any of the parties
(g) Resolutions Section 15 Seller
2
7. Mutual Release. Effective as of the Closing Date and the payment of the
entire Purchase Price by the Purchaser to the Seller, the Purchaser,
the Seller, and the Company, for each of them and their respective, as
applicable, successors, legal representatives, assigns and all persons
claiming by, through or under them, and each of their respective, as
applicable, members, parent, subsidiary and/or affiliated companies or
entities, shareholders, officers, directors, partners, members,
employees, agents, representatives and attorneys of all of the
foregoing, and their respective successors, legal representatives,
assigns and all persons claiming by, through or under any of them
(collectively, "Representatives"), do hereby release, acquit and
forever discharge each other and their respective Representatives from
and against any and all manner of actions, causes of action, suits,
debts, dues, sums of money owed to them, compensation, commissions,
covenants, costs, judgments, damages, and claims, demands and actions
of whatever nature or kind, in law or in equity (collectively, the
"Claims") which any of them now have or had or may ever have against
each other and all of their respective Representatives, singularly or
in combination, on account of, arising out of, or in connection with
any matter, transaction, act, omission or other involvement of whatever
nature or kind from the beginning of time through the end of time,
which in any way relate to (a) the Seller's investment and membership
in the Company, (b) any and all rights and obligations under the
Company's current or any former Operating Agreements, (c) any and all
rights and obligations under any other agreements or understandings
relating to the Seller's investment in and ownership of the Company's
business or assets, including without limitation any and all financial
reporting and accounting matters associated therewith, (d) the transfer
of the Interest, (e) any other matters, directly or indirectly,
relating to any of the foregoing, or (f) matters relating to this
Agreement, except for any obligations set forth in this Agreement which
are expressly intended to survive the Closing Date or expressly
intended to occur after the Closing Date. Each of the Purchaser, the
Seller and the Company, as of the Closing Date agree to indemnify and
hold the other and all of its respective Representatives harmless
including without limitation, the obligation to pay the other's legal
fees and expenses arising out of any Claims made in violation of the
release and indemnity provisions contained in this section of the
Agreement. Not in limitation of the foregoing, but as further
illustration, each of the Purchaser, the Seller and the Company
covenant and agree, as of the Closing Date for and on behalf of each of
them and their respective Representatives, to forever refrain from
instituting, prosecuting, asserting or otherwise pursuing or pressing
against each other any Claims which are released hereby. The terms of
this section are intended to survive the Closing forever. The foregoing
mutual release contained in this Section 7 of this Agreement is not
intended to terminate or release any obligations under various
declarations of restrictions, curb cut and access maintenance
agreements and sign easement agreements relating to certain real estate
adjacent to the Center.
8. Representations and Warranties.
a. Seller's Representations and Warranties. Seller hereby
represents and warrants to the Purchaser as of the Effective
Date and again as of the Closing Date as follows:
3
i. that the Seller has good and marketable title to
their respective Interest, free and clear of any
lien, pledge, security interest, claim, option,
agreement, encumbrance or other restriction of
whatever nature or kind;
ii. that the Seller has not previously transferred any
part of its Interest sold to Purchaser under the
terms of this Agreement;
iii. that the Seller has the full and complete right and
power to make the Transfer contemplated by this
Agreement;
iv. both the execution and delivery of this Agreement by
the Seller and by the undersigned signatory on behalf
of the Seller, and the performance of all obligations
and delivery of all Closing Documents, have been duly
and properly authorized by all proper, legal and duly
authorized actions;
v. that the Seller is a limited partnership in good
standing under the laws of the State of Ohio, and
that each of its nonindividual constituent partners
is in good standing, and that to the extent that the
execution of this Agreement or any actions
contemplated hereby must be authorized by its
partners, such actions have been duly and properly
authorized by all proper, legal and duly authorized
actions. The Seller shall order and tender to
Purchaser at the Closing, a good standing certificate
issued by the Ohio secretary of state to confirm that
the Seller is in good standing under the laws of the
State of Ohio. The tender of such good standing
certificate shall in no way release or excuse the
Seller from the representations, warranties and
obligations contained in the first sentence of this
subsection;
vi. no consents from any person, entity, lender or other
third party of whatever nature or kind are required
in order to enter into this Agreement and perform all
of the Seller's obligations hereunder; and,
vii. the Recitals set forth in this Agreement are true and
accurate in every respect.
b. Purchaser's Representations and Warranties. Purchaser hereby
represents and warrants to the Seller as of the Effective Date
and again as of the Closing as follows:
i. that it has the full and complete right and power to
accept the Transfer contemplated by this Agreement;
ii. both the execution and delivery of this Agreement by
the Purchaser and by the undersigned signatory on
behalf of the Purchaser, and the performance of all
obligations and delivery of all Closing Documents,
have been duly and properly authorized by all proper,
legal and duly authorized actions;
4
iii. the Purchaser is a limited partnership in good
standing under the laws of the State of Delaware, and
that each of its constituent nonindividual partners
is in good standing, and that to the extent that the
execution of this Agreement or any actions
contemplated hereby must be authorized by its
partners, such actions have been duly and properly
authorized by all proper, legal and duly authorized
actions. The Purchaser shall order and tender to
Seller at the Closing, a good standing certificate
issued by the Delaware Secretary of State to confirm
that the Purchaser is in good standing under the laws
of the State of Delaware. The tender of such good
standing certificate shall in no way release or
excuse Purchaser from the representations, warranties
and obligations contained in the first sentence of
this subsection;
iv. no other consents from any person, entity, lender or
other third party of whatever nature or kind are
required in order to enter into this Agreement and
perform all of its obligations hereunder; and,
v. the Recitals set forth in this Agreement are true and
accurate in every respect.
The representations and warranties set forth in this Section shall
survive the Closing, and all same shall be true and accurate in all
material respects as of the Effective Date as well as of the Closing
Date, without the necessity of signing any updated certificate or other
document reconfirming all said representations and warranties as of the
date of the Closing.
9. Further Assurances. The parties agree to execute and deliver such
instruments and take such further actions as another party may, from
time to time, reasonably request and are reasonably required in order
to effectuate the purposes and to carry out the terms of this
Agreement.
10. Pre-Closing Covenants. Each of the parties to this Agreement will use
its commercially reasonable efforts to take all action and to do all
things necessary, proper or advisable in order to consummate and make
effective the transactions contemplated by this Agreement, including
without limitation, the delivery of the items set forth in Section 6
hereof.
11. Broker Fees. Each party hereby represents and warrants to the other
that it has dealt with no broker, investment broker or agent in
connection with the transactions contemplated hereby and that no
commission, finders' fees or other such payments are due any such
person. Purchaser and Seller shall indemnify, defend (with counsel
satisfactory to the indemnified party) and agree to hold the other
harmless from and against any and all loss, liability, cost or expense
(including without limitations, court costs and reasonable attorneys'
fees and expenses) that the one may suffer or sustain should the
foregoing representations and warranties of the other prove inaccurate.
The foregoing indemnity shall survive the Closing and/or any
termination of this Agreement.
5
12. Notice Addresses. Any notice required or permitted by or in connection
with the Agreement, without implying the obligation to provide any such
notice, shall be in writing sent to the appropriate addresses set forth
below or to such other addresses as may be hereafter specified by
written notice by Seller or Purchaser. Any such notice shall be deemed
to be effective (a) one (1) day after deposit if sent by a nationally
recognized overnight courier service, or (b) two (2) days after deposit
if sent by the U.S. Postal Service, postage prepaid, certified, return
receipt requested, or (c) upon receipt if hand delivered or sent by
facsimile with the sender retaining the facsimile confirmation to prove
delivery.
a. If to Seller:
N.P. Limited Partnership
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
b. If to Purchaser or the Company:
Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy No. 000-000-0000
With a copy to:
Xxxxx Xxxxx Xxxx LLC
00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxxxxxx, Esq.
Telecopy No. 000-000-0000
13. Choice of Law. The laws of the State of Ohio shall govern the rights
and obligations of the parties to this Agreement, and the
interpretation and construction and enforceability thereof, and any and
all issues relating to the transactions contemplated herein.
14. Miscellaneous. This Agreement may be changed, waived or amended only in
an agreement signed by all parties to this Agreement. Except as
specifically provided herein, this Agreement contains the entire
understanding between the parties relating to the subject matter
hereof, and it supersedes any and all prior oral or written
understandings or agreements relating to any such matters. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto, and their successors, assigns, heirs and personal
representatives, as applicable. The captions of the several sections of
this Agreement are not a part hereof, and these captions shall not be
used to interpret any of the terms of this Agreement. The Recitals are
intended to be a part of this Agreement and are incorporated into the
body hereof. All parties signing this Agreement have taken all duly
authorized action necessary to authorize the execution of this
Agreement and to
6
execute any and all documents related hereto, and each of the parties
may rely upon this section of the Agreement without the necessity of
having further documentation to evidence such authority. If either
party defaults under its obligations set forth in this Agreement, the
non-defaulting party shall be entitled to recover reasonable attorneys'
fees and expenses incurred by the non-defaulting party in either
defending or initiating any action against the defaulting party. The
parties specifically acknowledge, represent and warrant that all of the
terms and conditions of this Agreement are adequately and fully
supported by consideration. The date of this Agreement shall be the
date that the last party signs it. In computing any period of time
under this Agreement, the day of the act or event for which the
designated period of time begins to run shall not be included, but the
last day of the period shall be included, unless it is a Saturday,
Sunday or a legal holiday, in which event, the period shall run through
the next business day. This Agreement may be executed in counterparts
and shall be fully enforceable so long as both parties have signed
either one Agreement or documents in counterpart. This Agreement may be
executed by facsimile signature and such facsimile signatures shall be
deemed as originals.
15. Authorization. At the Closing, each nonindividual Seller shall tender
an executed resolution and Officer's certificate evidencing (a)
ratification of the entity's and the signatory's authority to execute
this Agreement, and (b) authorization of the entity's and the
signatory's authority to execute and deliver the Closing Documents and
to perform any and all actions required to be performed under the terms
of this Agreement.
[End of Agreement - Signatures appear on the following pages]
7
IN WITNESS WHEREOF, the following signatories, intending to be legally
bound hereby, have executed this Agreement.
SELLER:
N.P. LIMITED PARTNERSHIP,
an Ohio limited partnership
By: KEW Investment Company, an Ohio
general partnership, its General Partner
By: The Xxxxxx Xxxxxxxxx Xxxxxx Trust
U/A October 6, 1988, as amended, its
general partner
November ___, 2003 By: _____________________________________
Xxxxxx X. Xxxxxx, Trustee
PURCHASER:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership,
through its sole and general partner signing
below
By: GLIMCHER PROPERTIES
CORPORATION, a Delaware corporation
November ___, 2003 By: _____________________________________
Xxxxxxx Xxxxxxxx, Chairman
COMPANY:
POLARIS MALL, LLC., a Delaware limited
liability company
By: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership, its Managing Member
By: GLIMCHER PROPERTIES
CORPORATION, a Delaware
corporation, its General Partner
November ___, 2003 By:______________________________________
Xxxxxxx Xxxxxxxx, Chairman
8
EXHIBIT A
ASSIGNMENT OF MEMBERSHIP AGREEMENT
50% LLC Interest
Polaris Towne Center
ASSIGNMENT OF MEMBERSHIP AGREEMENT
This Assignment of Membership Interest ("Assignment") is made by N.P.
Limited Partnership, an Ohio limited liability company ("Assignor") and Glimcher
Properties Limited Partnership, a Delaware limited partnership ("Assignee"). The
parties intending to be legally bound, hereby agree as follows:
Assignor and Assignee have entered into a certain Membership Interest
Purchase Agreement dated as of November 26, 2003 ("Agreement"), and reference is
hereby made to said Agreement. Terms which are capitalized herein shall have the
same meaning as those identically capitalized terms are defined in the
Agreement. Assignor is a Member of the Company, owning a fifty percent (50%)
limited liability membership interest (the "Interest") in the Company.
FOR VALUE RECEIVED, Assignor hereby sells, assign and transfers to the
Assignee, the Interest in the Company for the consideration described more
particularly in the Agreement. Assignor hereby remakes all representations and
warranties contained in the Agreement as of the Closing Date.
Assignor further covenants and agrees that, consistent with the terms
of the Agreement, from time to time upon the reasonable request of the Assignee
or the Company, Assignor will execute any document reasonably necessary to
complete, document or otherwise implement the Transfer of the Interest assigned
hereby.
This Assignment is intended to be effective as of the Closing Date set
forth on the signature page hereof.
[End of Assignment - Signatures Appear on Following Page]
IN WITNESS WHEREOF, the Assignor and the Assignee, intending to be
legally bound hereby, have executed this Assignment by their duly authorized
representative signing below.
ASSIGNOR:
N.P. LIMITED PARTNERSHIP,
an Ohio limited partnership
By: KEW Investment Company, an Ohio
general partnership, its General Partner
By: The Xxxxxx Xxxxxxxxx Xxxxxx Trust
U/A October 6, 1988, as amended, its
general partner
By:__________________________________
Xxxxxx X. Xxxxxx, Trustee
ASSIGNEE:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP,
a Delaware limited partnership,
By: GLIMCHER PROPERTIES
CORPORATION, a Delaware corporation,
its General Partner
By:__________________________________
Xxxxxx X. Xxxxxxx
Executive Vice President
Closing Date: January 5, 2004
