ASSIGNMENT OF INTEREST IN MASTER AGREEMENT AND
EXCHANGE OPTION AGREEMENT, AND CONSENT OF
LIMITED PARTNERS
THIS ASSIGNMENT OF INTEREST IN MASTER AGREEMENT AND EXCHANGE OPTION
AGREEMENT, AND CONSENT OF LIMITED PARTNERS (the "Assignment and Consent") is
made as of the 22nd day of December, 1997 by and among CAROLINA FAC LIMITED
PARTNERSHIP ("Carolina"), FAC REALTY TRUST, INC. ("FAC") (successor by merger to
FAC Realty, Inc.), FAC PROPERTIES, L.P. (the "Operating Partnership") and the
other signatories to this Assignment and Consent (collectively, the "Limited
Partners").
RECITALS
A. Carolina is a limited partnership formed under the laws of
the State of Delaware with the purpose of, among other things, owning and
operating retail properties in Virginia and North Carolina. Carolina was formed
pursuant to a certain Certificate of Limited Partnership filed with the Delaware
Secretary of State and is governed by that certain Agreement of Limited
Partnership dated as of October 1, 1997 (the "Carolina Partnership Agreement").
FAC is the general partner of Carolina. Limited Partners are the limited
partners in Carolina.
B. Carolina, FAC and the Limited Partners have entered into a
certain Master Agreement dated as of October 1, 1997 (the "Master Agreement")
and a certain Exchange Option Agreement dated as of October 1, 1997 (the
"Exchange Option Agreement") relating to the prospective contribution to
Carolina by Limited Partners of all of their interests in certain Properties and
Constituent Partnerships (as such terms are defined in the Master Agreement) to
Carolina.
C. FAC has elected to conduct its operations as a so-called
UPREIT. Under the terms of the Carolina Partnership Agreement, it was envisioned
that the limited partnership interests of the limited partners would be
exchanged for units in the Operating Partnership when the Operating Partnership
was formed. However, the Operating Partnership has been formed and the UPREIT
created prior to the Closing under the Master Agreement and Exchange Option
Agreement; and the parties desire that at Closing the Limited Partners shall
contribute their Constituent Partnership interests and Properties directly to
the Operating Partnership in exchange for limited partnership units in the
Operating Partnership.
D. Accordingly, Carolina hereby assigns its interest in the
Exchange Option Agreement and Master Agreement to the Operating Partnership, and
the Limited Partners hereby consent to such assignment and transfer, with the
effect that, among other things, at Closing, the Limited Partners will be
awarded units in the Operating Partnership, and the Properties or Constituent
Partnerships, as applicable, shall be contributed directly to the Operating
Partnership.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Carolina hereby conveys, sets over and assigns unto the
Operating Partnership all of its right, title and interest in and to (i) the
Exchange Option Agreement and (ii) the Master Agreement. The Operating
Partnership agrees to assume any and all obligations, liabilities and covenants
of Carolina to be performed or arising from and after the date hereof under the
Master Agreement and the Exchange Option Agreement.
2. FAC and the Limited Partners each and all acknowledge and
consent to the assignment and assumption by the Operating Partnership of the
right, title, interest, liabilities and obligations of Carolina pursuant to
Paragraph 1 hereof. In particular, but without limitation, Limited Partners
hereby acknowledge and agree that (i) the Operating Partnership is and hereafter
shall be a party to the Exchange Option Agreement and Master Agreement in the
place and stead of Carolina and entitled to enforce such agreements as a party
thereto as if the Operating Partnership had been an original signatory thereto,
(ii) all references in the Exchange Option Agreement or Master Agreement to
Carolina shall be deemed references to the Operating Partnership, and (iii) each
and all of the covenants, representations and warranties by the Limited Partners
shall be for the benefit of the Operating Partnership. Each Limited Partner
hereby remakes as of the date hereof his or her representations and warranties
set forth in Paragraph 5.D of the Exchange Option Agreement with respect to the
Operating Partnership and the limited partnership units therein. All references
in the Master Agreement or Exchange Option Agreement to "Units" or "Partnership
Units" shall be deemed to mean limited partnership units in the Operating
Partnership rather than units in Carolina and all references to the "Closing"
shall be deemed references to the closing of the transaction whereunder the
Properties or Constituent Partnerships, as applicable, are transferred to the
Operating Partnership in exchange for limited partnership units in the Operating
Partnership.
3. All parties hereby acknowledge and agree that the outside
date for the Closing under the Exchange Option Agreement and Master Agreement
shall hereby be extended through and including January 12, 1998.
4. FAC hereby represents and warrants to the Limited Partners
that the copy of the Agreement of Limited Partnership of the Operating
Partnership (the "OP Agreement") attached hereto as Exhibit A is true, accurate
and complete. All references in the Master Agreement in the Carolina Partnership
Agreement shall be deemed to mean the OP Agreement.
5. The parties acknowledge and agree that Closing on all of
the Properties or Constituent Partnerships may take place simultaneously or
that, with the consent of FAC and all Limited Partners entitled to receive Units
from a particular Closing on certain Properties or Constituent Partnerships,
such Closing may precede Closing on other Properties or Constituent Partnerships
as to which conditions of Closing have not yet been satisfied, and that, in the
latter
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event, the number of Operating Partnership units issued to the Limited Partners
in respect of such Properties or Constituent Partnerships as to which Closing
has occurred, shall be in accordance with the parties' separate agreement in
respect thereof, and that the failure of Closing to take place with respect to
any Properties or Constituent Partnerships shall not impair or affect Closing(s)
which shall have taken place with respect to other Properties or Constituent
Partnerships.
6. All parties hereby agree that Schedule B to the Exchange
Option Agreement is hereby amended to substitute "____________" for "733,392" as
the total number of Units that ▇▇▇ ▇. ▇▇▇▇▇▇▇ is to receive at Closing and to
substitute "____________" for "11,921" as the number of Units that ▇▇▇▇▇▇▇
▇▇▇▇▇▇ is to receive at Closing.
7. All capitalized terms not otherwise defined in this
Assignment and Consent shall mean as defined in the Exchange Option Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have duly executed this Assignment and
Consent as of the date and year first above written.
CAROLINA FAC LIMITED PARTNERSHIP
By: FAC Realty Trust, Inc.,
General Partner
By:
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Name:
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Title:
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FAC PROPERTIES, L.P.
By: FAC Realty Trust, Inc.,
a Maryland corporation
By:
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Name:
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Title:
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FAC REALTY TRUST, INC. (successor by
merger to FAC Realty, Inc.)
By:
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Name:
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Title:
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