EXHIBIT 10.2
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Letter Agreement
September 10, 1987
The Xxxx Disney Company
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Re: Purchase of Assets of
Arvida Corporation and Subsidiaries
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Gentlemen:
Please refer to that certain agreement dated January 29, 1987 by and
between The Xxxx Disney Company, a Delaware corporation ("Disney"), and
Arvida Acquisition Associates, Ltd., an Illinois limited partnership,
providing for, among other things, the sale and purchase of assets of
Arvida Corporation and its subsidiaries, as supplemented by that certain
letter agreement captioned "Supplemental Letter" dated as of January 29,
1987 (such agreement as so supplemented being herein called the
"Agreement"). Disney and the undersigned Arvida/JMB Partners, L.P. (which
together with its permitted assignees will be herein called "Buyer") are
the holders of the rights and obligations of Disney and Arvida Acquisition
Associates, Ltd., respectively, under the Agreement.
This letter agreement and the exhibits attached hereto and
incorporated herein ("Exhibits") confirm certain agreements pertaining to
the Agreement and the transactions therein provided. The capitalized terms
used in this letter agreement and the Exhibits have the meanings ascribed
to such terms in the Agreement except as otherwise herein provided. As
amended by this letter agreement, the Agreement and each term and provision
thereof are hereby affirmed.
1. The Agreement, as amended by this letter agreement, shall
constitute the "Definitive Agreement" referred to in paragraph 7 of the
Agreement.
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September 10, 1987
Page 2
2. The dollar amount in the second line of paragraph 2 of the
Agreement is hereby changed from $445,000,000 to $404,000,000; said sum of
$404,000,000 takes into account (a) the mortgages and deeds of trust
described in Exhibit "A", hereunto annexed and made a part hereof (not
including, however, any mortgages or deeds of trust described in said
Exhibit "A" which constitute Notes and Mortgages referred to in paragraph
3C of the Agreement), and (b) the Red Book Reduction.
3. The parties hereby agree as set forth in Exhibit "B" hereunto
annexed and made a part hereof with respect to the intercompany receivable
therein described. Subject to the provisions of said Exhibit "B", all
intercompany accounts will be satisfied at or prior to closing hereunder.
4. No costs or expenses relating to the proposed master limited
partnership (which proposal was terminated by Disney at or about the time
of execution of the Agreement) will be borne by Arvida or any of its
subsidiaries or be included in the closing costs (the same instead being
borne by Disney), except that the expenses Listed on Exhibit "C", hereunto
annexed and made a part hereof, shall be included in the costs of closing
under paragraph 9 of the Agreement.
5. The term "Financial Services Assets" as used in the Agreement
shall be deemed to mean the assets of "Financial Services" (which in turn
shall be deemed to mean Arvida Disney Financial Services, Inc., a
subsidiary of Arvida Disney Corporation, and all subsidiaries thereof,
including without limitation Arvida Mortgage Company).
6. Neither Disney nor Arvida nor any subsidiary or affiliate of
either nor any successor or assign of the same (except for (i) Buyer, (ii)
the subsidiaries of Arvida the stock in which is transferred to Buyer, and
(iii) their respective successors and assigns), including, but not limited
to, any
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September 10, 1987
Page 3
transferee of the Financial Services Assets, will have any right to use the
name "Arvida", whether alone or in combination with any other word or
phrase, at any time or times after the Closing Date, except as set forth in
Exhibit "D", hereunto annexed and made a part hereof (all such right of
Disney, Arvida and such subsidiaries and affiliates being transferred
hereunder to Buyer). In addition, pursuant to paragraph 19 of the
Agreement, Disney shall take or cause to be taken all action reasonably
necessary to facilitate the use of the name "Arvida" (whether alone or in
combination with other words or phrases) by Buyer.
7. (a) No interest will accrue or be payable under the Purchase
Price Note prior to October 1, 1987. The Purchase Price Xxxx will be in
the form of Exhibit "E", hereunto annexed and made a part hereof.
(b) In lieu of the Disney Revolver referred to in paragraph
3B of the Agreement, Buyer will deliver at closing a promissory note ("PR
Note") in the aggregate principal amount of $143,200,000 in form of Exhibit
"F", hereunto annexed and made a part hereof. Interest thereunder will
commence accruing as of the Closing Date at the rate of 8% per annum. The
DR Note will evidence $143,200,000 of the purchase price. The entire
principal and any unpaid interest under the DR Note will be payable on
December 15, 1987. Principal shall be prepayable in whole or in part at any
time after September 30, 1987 without interest or other penalty at any time
or times. As aforesaid, the DR Note will be in lieu of the Disney
Revolver, and therefore, there will be no Disney Revolver.
(c) that portion of the purchase price equal to the excess of
(i) the "Bank Debt", over (ii) $131,300,000, will be paid pursuant to the
provisions of promissory notes (collectively "BD Note") in the form of
Exhibit "G", hereunto annexed and made a part hereof. Interest thereunder
will
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September 10, 1987
Page 4
commence accruing as of the Closing Date at the rate of 8% per annum. The
entire principal and unpaid interest under the BD Note will be payable on
October 1, 1987. Principal will not be payable prior to maturity.
Notwithstanding any other provision of the Agreement, Buyer will not assume
or be subject to the Bank Debt or any portion thereof, and neither Buyer
nor the Transferred Assets will be subject to the same (Disney agreeing to
cause the same to be discharged at or before the time or times due). As
used herein, "Bank Debt" means the unpaid balance as of the Closing Date
under (A) the subordinated note to Disney in the amount of $120,000,000,
and (B) the $100,000,000 revolving credit agreement with a group of banks
led by Bankers Trust Company.
(d) The guaranty by JMB referred to in the Agreement will be
in the form of Exhibit "G-l", hereunto annexed and made a part hereof,
which will be executed and delivered by the parties thereto on the Closing
Date.
8. (a) The Closing Date shall be September 10, 1987. The
parties agree that the conditions to Buyer's obligation to close the sale
and purchase shall be the matters set forth in paragraph 7B of the
Agreement. The closing of the transaction will constitute a waiver by each
party of the conditions to its obligation to close the same, but will not
constitute a waiver by either party of any of the covenants or warranties
of the other party made under or in connection with the Agreement, as
amended by this letter agreement, or any instrument or agreement delivered
in connection with the same, or of any default by either party thereunder,
whether or not such covenant or warranty also constituted a condition to
such party's obligation to close as aforesaid. Therefore, the closing of
the transaction will not preclude either party from recovering damages for
breach but will preclude either party from rescinding the sale by reason of
non-fulfillment of conditions.
The Xxxx Disney Company
September 10, 1987
Page 5
(b) The transfers to be made at closing will be made to the
entities and by the method described in Exhibit "H", hereunto annexed and
made a part hereof. In this connection, while the obligation of Disney is
to cause to be sold to Buyer the Transferred Assets, and the obligation of
Buyer is to purchase the Transferred Assets, the parties have elected to
accomplish certain of such sales and purchases by transferring certain
partnership interests or stock in corporations owning such Transferred
Assets as more particularly set forth in said Exhibit "H". However, in
connection with such transactions. Buyer will acquire the same assets and
liabilities that would have been acquired by Buyer if all the Transferred
Assets and all the liabilities provided in the Agreement (as amended by
this letter agreement) to be acquired by Buyer had been transferred
directly to Buyer by Arvida and its subsidiaries rather than by transfer of
stock and partnership interests as set forth in said Exhibit "H" (although
Buyer recognizes that the different method of transfer may have a different
tax effect than a direct transfer of Transferred Assets and liabilities).
(c) The parties agree to meet within 90 days after the
Closing Date to attempt to settle in good faith such post-closing
adjustments as may be necessary.
9. Disney hereby represents and warrants to Buyer each of the
matters referred to in paragraph 7A of the Agreement. The parties intend
that such matters be construed and interpreted as usually understood by
persons in the profession or business of asset acquisition and disposition
of companies of like size and character to Arvida. In addition, Disney
hereby represents and warrants to Buyer as set forth in Exhibit "I"
hereunto annexed and made a part hereof with respect to the title to
certain assets. The warranties having a time limit on survival will be
those other than (a) ownership of tangible and intangible personal property
(including stock and partnership
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September 10, 1987
Page 6
interests) and (b) organization and authority. Such time limits will be
two years after the Closing Date except that, with respect to the warranty
in Exhibit "I" hereof, such time limit will be one year after the Closing
Date. Buyer must either give written notice of its claim or commence suit
with respect to the same before the expiration of the applicable time limit
or else the right of recovery with respect to such claim will terminate on
the expiration of such time limit.
Buyer hereby represents and warrants to Disney (without time limit as
to survival) the customary representations and warranties concerning
organization and authority (the same to be construed and interpreted as
usually understood by persons in the profession or business of asset
acquisitions and disposition of companies of like size and character to
Arvida).
Each party represents and warrants to the other (without time limit
as to survival) that it has the full right and authority to enter into and
perform this letter agreement and the agreements and instruments being
executed simultaneously herewith and that the persons executing this letter
agreement and the agreements and instruments being executed simultaneously
herewith on behalf of a party are duly authorized to do so and this letter
agreement and the agreements and instruments being executed simultaneously
herewith are binding on such party.
10. Disney hereby agrees to indemnify, defend and hold harmless
Buyer from and against any and all claims and liabilities referred to in
paragraph 7C of the Agreement, such indemnity to include Buyer's costs and
expenses, including but not limited to reasonable attorneys' fees. To the
extent the particular matter covered by such indemnification is not
required to be administered pursuant to Exhibit "N-2" hereof (Claims Pool)
then the same shall be administered in accordance with the following:
Disney and Buyer agree to cooperate in the defense of claims covered by
such indemnification; Disney and Buyer will keep each other notified as to
matters pertaining to
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September 10, 1987
Page 7
such claims and will cooperate in selecting counsel; if Disney wrongfully
declines to assume defense of any such claim or liability, then the Buyer
may administer the same and amounts spent by Buyer on such defense,
including settling or discharging claims, costs and attorneys' fees, will
conclusively establish the amount of Disney's liability to Buyer with
respect to such claim or liability.
11. The assets to be eliminated from the Transferred Assets under
paragraph 8 of the Agreement, and the reduction in the purchase price as a
result of such elimination shall be as set forth in Exhibit "J", hereunto
annexed and made a part hereof.
12. The right of first offer referred to in paragraph 10 of the
Agreement shall be as set forth in Exhibit "L", hereunto annexed and made a
part hereof.
13. If the sale of the Transferred Assets to Buyer hereunder shall
be consummated, then, in addition to the obligations and liabilities
assumed by Buyer pursuant to the Agreement, Buyer shall assume or be
subject to only the contractual obligations and liabilities accruing after
the Closing Date under the following contracts, agreements, leases, rights
and interests ("Contracts") included in the Transferred Assets, which
obligations and liabilities are not covered by an indemnification of Disney
to Buyer and are not inconsistent with any representation and warranty of
Disney:
(1) those listed in Exhibit "M", hereunto annexed and made a
part hereof; and
(2) those as to which all of the following shall be true: (a)
the same is not in material default as of the Closing Date; (b) the same
was entered into in the ordinary course of business; and (c) the same does
not involve a potential liability in excess of $50,000.
The Xxxx Disney Company
September 10, 1987
Page 8
Disney represents and warrants to Buyer that neither Arvida nor any
affiliate of Arvida is or on the Closing Date will be in material default
under any of the Contracts. The provisions in paragraph 9 hereof
respecting time limit on survival shall be applicable to the foregoing
representation and warranty. Nothing herein contained shall be deemed to
effect a waiver by Buyer of the benefit of any limitation on liability
contained in or pertaining to any of the Contracts, the parties agreeing
that Buyer shall have the benefit of any limitation on liability under the
Contracts provided by law or in any contract, agreement or instrument.
14. Paragraph 4B of the Agreement is hereby amended by deleting
"$3,500,000" in the final line thereof and substituting therefor
"$2,943,000."
15. In addition to the foregoing, the parties hereby make the
additional agreements set forth in Exhibits N-l - N-12, hereunto annexed
and made a part hereof.
16. Certain forms of agreement annexed as Exhibits hereto will be
executed and delivered by the parties thereto on the Closing Date (and
Disney shall cause any other party thereto that is an affiliate of Disney
to execute and deliver the same and Buyer shall cause any other party
thereto that is an affiliate of Buyer to execute and deliver the same).
The Xxxx Disney Company
September 10, 1987
Page 9
If this letter accurately sets forth our agreement, then please so
indicate by signing a copy of the same at the place indicated below and
return the same to the undersigned.
Yours very truly,
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: Arvida/JMB Managers, Inc.,
an Illinois corporation
General Partner
By: [ executed signature ]
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Vice President
JMB REALTY CORPORATION,
a Delaware corporation
By: [ executed signature ]
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Senior Vice President
ACCEPTED AND AGREED TO AS OF
THIS 10TH DAY OF SEPTEMBER, 1987
THE XXXX DISNEY COMPANY
BY: [ executed signature ]
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Vice President
