Exhibit I
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STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of April 30,
2001, between Apollo Real Estate Investment Fund II, L.P. (the "Seller") and
First Union Real Estate Equity and Mortgage Investments, an Ohio real estate
business trust (the "Purchaser").
WHEREAS, the Purchaser desires to purchase 2,990,372 common shares of
beneficial interest, of the Purchaser (the "Shares") from the Seller;
WHEREAS, the Seller desires to sell the Shares to the Purchaser; -
NOW, THEREFORE, in consideration of the promises and the
representations, warranties, acknowledgements and agreements set forth herein,
the parties hereto agree as follows:
1. Purchase of Shares. Simultaneously with the execution of this
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Agreement, the Seller shall sell to the Purchaser, and the Purchaser shall
purchase from the Seller, the Shares at an aggregate cash consideration of
$7,102,133.50 for same day settlement, delivery versus payment, through the
Depositary Trust Company.
2. Representations and Warranties by the Seller. The Seller hereby
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represents and warrants as follows:
(a) The Seller is the sole record and beneficial owner of, and
has good and valid title to the Shares, free and clear of any and all liens,
pledges, encumbrances, charges, agreements or claims of any kind whatsoever.
(b) The Seller has the requisite corporate, partnership or
limited liability company power, as the case may be, and authority to execute,
deliver and perform its obligations under this Agreement and to sell, assign,
transfer and deliver the Shares, and the delivery of the Shares as provided in
this Agreement will convey to the Purchaser good and marketable title to the
Shares.
(c) The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly authorized
by all necessary corporate, partnership or limited liability company action, as
the case may be, of the Seller. This Agreement has been duly executed and
delivered by the Seller and constitutes the legal, valid and binding obligation
of the Seller enforceable against the Seller in accordance with its terms,
except insofar as enforceability may be affected by bankruptcy, involvency or
similar laws affecting creditor's rights generally and the availability of any
particular equitable remedy.
(d) Neither the execution or delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions hereof conflict with or will result in
a breach or violation of or default under any of the terms, conditions or
provisions of (i) the Seller's organizational documents or (ii) any agreement,
order, judgment, decree, arbitration award, statute, regulation or instrument to
which Seller is a party or by which it or its assets are bound.
(e) Other than consents obtained as of the date hereof, no
consent or approval, authorization, order, registration or qualification of or
with any government entity or any other person is required for the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby by the Seller.
The foregoing representations and warranties shall survive the
date hereof.
3. Representations and Warranties by the Purchaser. The Purchaser
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hereby represents and warrants as follows:
(a) The Purchaser has the requisite corporate, partnership or
limited liability company power, as the case may be, and authority to execute,
deliver and perform its obligations under this agreement and to consummate the
transactions contemplated hereby.
(b) The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly authorized
by all necessary corporate, partnership, business trust or limited liability
company action, as the case may be, of the Purchaser. This Agreement has been
duly executed and delivered by the Purchaser and constitutes the legal, valid
and binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except insofar as enforceabilty may be affected by
bankruptcy, insolvency or similar laws affecting creditor's rights generally and
the availability of any particular equitable remedy.
(c) Neither the execution or delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions hereof conflict with or will result in
a breach or violation of or default under any of the terms, conditions or
provisions of (i) the Purchaser's organizational documents or (ii) any
agreement, order, judgment, decree, arbitration award, statute, regulation or
instrument to which Purchaser is a party or by which it or its assets are bound.
(d) Other than consents obtained as of the date hereof, no
consent or approval, authorization, order, registration or qualification of or
with any governmental entity or any other person is required for the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby by the Purchaser.
The foregoing representations and warranties shall survive the
date hereof.
4. Seller's Acknowledgments. The Seller hereby acknowledges that it
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understands that:
(a) It has carefully reviewed this Agreement and is represented
by counsel in connection with the execution of this Agreement and the
transactions contemplated hereby. It and its counsel have been given the
opportunity to ask questions of, and receive answers from, the Purchaser
concerning the terms and conditions of the Shares and have been given the
opportunity to obtain any additional information which the Purchaser possesses
or can acquire without unreasonable effort or expense, that is necessary to
verify the accuracy of the information supplied to it. It understands that there
can be no assurance that the Shares will not
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be valued in the future at a significantly higher price than the purchase price
per Share pursuant to the terms of this Agreement.
(b) The Purchaser may possess material non-public information
regarding Purchaser and the Shares. It understands that such information has not
been disclosed to it and agrees that the Purchaser and its officers, trustees,
agents and representatives shall have no liability to it or any of its officers,
directors, trustees, agents and representatives, or affiliates with respect to
the sale referred to above arising out of the nondisclosure to it or any of them
of such material non-public information.
The foregoing acknowledgments shall survive the date hereof.
5. Miscellaneous. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of New York, without regard to the
principles of conflict of laws thereof. This Agreement may not be assigned in
whole or in part by either party without the prior written consent of the other
party. This Agreement sets forth the entire agreement of the parties and is
intended to supercede all prior agreements. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of which
shall be deemed to be an original, and all of which shall constitute the same
agreement.
6. No Personal Liability. Notwithstanding anything contained herein
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to the contrary, this Agreement is made and executed on behalf of the Purchaser,
a business trust organized under the laws of the State of Ohio, by its
officer(s) on behalf of the Trustees thereof, and none of the Trustees or any
additional or successor Trustee hereafter appointed, or any beneficiary,
officer, employee or agent of the Purchaser shall, except as otherwise may be
required by law, have any liability in such Trustee's, beneficiary's officer's,
employee's or agent's personal or individual capacity, but instead all parties
shall look solely to the property assets of the Purchaser for satisfaction of
claims of any nature arising under or in connection with this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement as of the date first above written.
THE SELLER:
APOLLO REAL ESTATE INVESMENT FUND II, L.P.
By:___________________________________________
Name:
Title:
THE PURCHASER:
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE
INVESTMENTS
By:___________________________________________
Name:
Title:
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