EXHIBIT 10-F
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(Carlyle-XIV)
SETTLEMENT AGREEMENT AND RELEASE
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THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement"), dated as of this
17th day of March, 1999, is made by and among PROGRESS PROPERTIES, INC.
("PPI"), J.R.A. REALTY CORPORATION ("JRA"), P-C 900 THIRD ASSOCIATES ("P-C
900," and collectively with PPI and JRA, the "Progress Group"), 900 REALTY,
LLC ("900 Realty" and collectively with PPI, JRA and P-C 900, the "Progress
Parties"), ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ASSOCIATES ("Associates"), and PROGRESS PARTNERS
(the "Partnership").
W I T N E S S E T H:
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WHEREAS, each of the entities constituting the Progress Group and
Associates are (or were) partners in the Partnership pursuant to, among
other things, that certain Amended and Restated Agreement of General
Partnership for Progress Partners dated as of August 20, 1984, as amended
pursuant to Amendment No. 1, dated as of February 26, 1986 ("Partnership
Agreement");
WHEREAS, the Partnership owns certain land and improvements commonly
known as ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Property");
WHEREAS, in 1987, JMB Property Management Company ("JMB") became the
manager of the Property pursuant to that certain Agreement for Operation
and Management of Office Building (the "Management Agreement") dated as of
December 1, 1987;
WHEREAS, in December, 1994, JMB delegated certain of its duties under
the Management Agreement to ▇▇▇▇▇▇▇ Properties of New York, Ltd.
("▇▇▇▇▇▇▇") pursuant to that certain Submanagement Agreement;
WHEREAS, the Federal Deposit Insurance Corporation ("FDIC") has filed
various claims against, among others, Associates, the Progress Group and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, individually ("▇▇▇▇▇▇▇▇"), arising from ▇▇▇▇▇▇▇▇'▇
acquisition of certain interests in the Progress Group, entitled FDIC V.
PROGRESS PROPERTIES, et al., Case No. 91 Civ. 3761 (S.D.N.Y.) and FDIC V.
FIRST MARYLAND, et al., Case No. 96 Civ. 3792 (S.D.N.Y.) both of which are
presently pending in the United States District Court for the Southern
District of New York, and FDIC V. FIRST MARYLAND, et al., presently pending
in Circuit Court of Maryland for Baltimore City, Case No. 96141932/CL212356
(collectively, the "FDIC Cases");
WHEREAS, Associates filed a cross-complaint against, among others,
the Progress Group, arising from its prior management of the Property, in
the action entitled FDIC V. PROGRESS PROPERTIES, et al., Case No. 91 Civ.
3761 (S.D.N.Y.) presently pending in the United States District Court for
the Southern District of New York (the "Partnership Litigation");
WHEREAS, in or about January, 1996, the Maryland Deposit Insurance
Fund Corporation ("MDIF") obtained a judgment against PPI and JRA to
foreclose its lien on the partnership interests in the Partnership and PC-
900 held by PPI and JRA (collectively "PPI/JRA Partnership Interests");
WHEREAS, 900 Realty has represented that in or about January, 1998,
MDIF assigned to 900 Realty, for good and valuable consideration, all of
MDIF's right, title and interest in its judgment and the PPI/JRA
Partnership Interests (collectively, the "MDIF Interests");
WHEREAS, 900 Realty conducted a foreclosure sale of the PPI/JRA
Partnership Interests at which sale 900 Realty was the successful purchaser
and now maintains that is the holder of the PPI/JRA Partnership Interests,
as evidenced by a certificate of sale, dated as of September 14, 1998, a
copy of which has been delivered to Associates;
WHEREAS, Associates maintains that it holds a lien on (and the
Progress Parties contest that Associates holds a lien on) the PPI/JRA
Partnership Interests as well as the partnership interest of PC-900 in the
Partnership to secure that certain promissory note, dated as of August 20,
1984 in the original principal amount of $20 million ("Associates' Note")
made by PPI and delivered to Associates, together with interest thereon,
which lien Associates claims (and the Progress Parties contest) is superior
to MDIF's lien;
WHEREAS, PPI, JRA and 900 Realty have asserted various claims against
the Partnership and Associates (and Associates and the Partnership have
contested such claims), including, without limitation, (i) the
mismanagement of the Property by JMB and/or ▇▇▇▇▇▇▇ (ii) claims arising
from Associates' negotiations and agreement with MDIF after MDIF obtained
its judgment ("MDIF-related Claims"), (iii) claims under the Partnership
Agreement by the Progress Group against the Partnership for certain
Guaranteed Payments (as defined therein) and other claims asserted by or on
behalf of the Partnership against Associates for certain capital
contributions allegedly due from Associates to the Partnership (the
"Partnership Agreement Claims") and (iv) claims arising from distributions
taken by Associates for the repayment of certain funds loaned to the
Partnership in connection with the refinancing of the Partnership's debt
and other distributions ("Distribution Claims");
WHEREAS, Associates, the Progress Parties and the Partnership desire
to avoid the uncertainties and expense of litigation and to settle and
compromise on the terms set forth below all claims asserted or that could
be asserted by any party that they may have against each other, except as
provided herein; and
NOW, THEREFORE, in consideration of the premises aforesaid, the
mutual covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. AUTHORITY. Simultaneously with the execution and delivery of
this Agreement by all of the parties hereto, each party shall provide to
the other evidence of its due authorization to enter into and perform the
transactions contemplated by this Agreement, all in form reasonably
satisfactory to the other parties. Such evidence shall include the
following: (a) certificate of good standing in the state of its formation
or incorporation (except that no such certificate shall be required from
Associates or the Progress Group) and the organizational documents of such
party (e.g. operating agreement, by-laws, etc.); (b) an incumbency
certificate; (c) an organizational certificate or resolution, duly
certified, authorizing such party to enter into this Agreement, consummate
the sale and perform the obligations required of such party hereunder; and
(d) such other evidence reasonably required by any of them.
2. ACQUISITION BY 900 REALTY. Associates and the Progress Group
hereby (a) consent to and agree to waive all defects and objections, if
any, to MDIF's assignment of the MDIF Interests to 900 Realty, (b) consent
to and agree to waive all defects and objections, if any, to 900 Realty's
judicial or foreclosure sale of the PPI/JRA Partnership Interests, (c)
acknowledge, agree and will not contest (i) that 900 Realty is the sole
holder and owner of the PPI/JRA Partnership Interests, formerly held by PPI
and JRA in the Partnership and PC-900, together with all claims held by JRA
or PPI against the Partnership and/or Associates, (ii) that 900 Realty, in
substitution for PPI and JRA, now owns and controls all of the right, title
and interest formerly held by PPI and JRA in the Partnership and in PC-900
as well as all claims held by them against the Partnership and/or
Associates, and (iii) that 900 Realty has the authority to convey the
Partnership Interests as provided in paragraph 4 hereinafter; provided,
however, that nothing herein shall be construed as a waiver or otherwise
estop or limit in any way Associates' right to enforce or rely on the
representations and warranties made by the Progress Parties in this
Agreement (including the representations and warranties set forth in
Article 10 herein) or any Closing Document, it being understood that the
foregoing acknowledgments and agreements made by Associates in this
Paragraph 2 are based on such representations and warranties. In order to
further support the agreements herein, PPI and JRA do hereby quitclaim,
assign and convey to 900 Realty, without representation or warranty, all of
their right, title and interest in and claims against the Property,
Partnership and/or PC-900, including, without limitation, whatever claims
they may have against the Partnership and/or Associates for Guaranteed
Payments (collectively the "Support Interests"). Subject to the proviso in
Paragraph 28 of this Agreement, the Progress Parties and Associates and the
Partnership acknowledge and agree (x) that in order to secure Associates'
Note, Associates holds a lien on (i) the PPI/JRA Partnership Interests,
(ii) the partnership interest of PC-900 in the Partnership, and (iii) all
of the claims of the Progress Group against the Partnership, including all
claims, if any, for Guaranteed Payments (the "Associates' Lien"), and (y)
that such lien is superior to MDIF's lien and (z) that 900 Realty's
acquisition of all of its right, title and interest in and claims against
the Partnership is subject to such lien.
3. FDIC ACQUISITION. Simultaneously with or prior to the execution
and delivery of this Agreement by all of the parties hereto, 900 Realty
shall deliver (a) original copies of the Agreement and Mutual Release
attached hereto as Exhibit A duly executed by each of the Progress Parties,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and by PPI on behalf of the Partnership, (b)
an original Partner Consent attached hereto as Exhibit B duly executed by
the Progress Parties and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (c) the letter to the FDIC in the
form attached hereto as Exhibit C duly executed by each of the Progress
Parties and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and (d) stipulations to dismiss in the form
attached hereto as Exhibit D duly executed by counsel for each of the
Progress Parties and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
4. SALE OF PARTNERSHIP INTERESTS. Simultaneously with the
execution and delivery of this Agreement by all of the parties hereto
("Closing Date"), Associates shall acquire from 900 Realty the Partnership
Interests (defined hereafter) in exchange for a total payment by Associates
of Sixteen Million Dollars ($16,000,000) (the "Purchase Price"), which
Purchase Price shall be paid by Associates according to the terms and upon
the conditions hereinafter set forth. As used herein, "Partnership
Interests" shall mean all of the right, title and interest (i) in the
Partnership not owned by Associates as of the Closing Date and (ii) in PC-
900 not owned by the FDIC (or its successor in interest) as of the Closing
Date, including all of the right, title and interest of JRA and PPI in the
Property (if any), Partnership and PC-900 held by them since the inception
of the Partnership (other than Associates' interest in the Partnership), as
well as any claims held by any of them against the Partnership or
Associates, together with the Support Interests transferred to 900 Realty
pursuant to paragraph 2 above.
(a) On the Closing Date, 900 Realty shall, at its expense,
provide Associates with (i) an original of the assignment attached hereto
as Exhibit E duly executed by each of the parties thereto, (ii) results of
a search of the Progress Parties from a reputable search service for the
State of New York (and any other state in which such of the Progress
Parties is incorporated or formed and doing business), dated no earlier
than March 3, 1999, and showing no UCC, tax or judgment liens with respect
to any interest in the Partnership or in PC-900 (other than the Associates'
Lien), (iii) a policy issued by Commonwealth Title Company (the "Title
Company") in the amount of the Purchase Price, in form reasonably
satisfactory to Associates, insuring Associates' title to the Partnership
Interests free and clear of any liens (other than the Associates' Lien),
encumbrances or defects, as well as the interest of 14-15 Office
Associates, L.P. ("14-15 Office Associates") in the Partnership free and
clear of any liens (other than the Associates' Lien), encumbrances or
defects, and (iv) a certificate and report of title on the Property free
and clear of all liens, claims and encumbrances, other than those approved
by Associates, and a letter from the Title Company agreeing not to raise
certain matters in form reasonably satisfactory Associates. On the Closing
Date, Associates shall pay to 900 Realty, by federal funds wire transfer of
immediately available funds to an account designated by 900 Realty to
Associates in writing, of which 900 Realty hereby represents that it shall
be the beneficial owner, the sum of Thirteen Million Five Hundred Thousand
and no/Dollars ($13,500,000); and
(b) The remaining balance of the Purchase Price, in the
amount of Two Million Five Hundred Thousand and no/Dollars ($2,500,000)
(the "Closing Balance"), shall be paid by Associates in the same manner as
above upon the earlier of (i) a closing of a sale of the Property by the
Partnership, or (ii) January 3, 2000. The Partnership hereby guarantees
Associates' obligation to pay the Closing Balance (together with interest
due thereon, if any) according to the terms and conditions set forth
herein. Associates and the Partnership hereby acknowledge and agree that
Associates: (a) has an irrevocable obligation to pay the Closing Balance
when the same shall become due and payable as provided herein, and (b) if
Associates fails to pay the Closing Balance as provided herein, then, for
each day that such payment is not paid when due, Associates shall pay
interest on the Closing Balance at an annual rate equal to 150 basis points
over the prime rate of Citibank, N.A. in effect from time to time (computed
on an actual/365 day basis), provided that in no event shall such amounts
exceed the maximum rate permitted by law, plus any and all out of pocket
cost incurred by 900 Realty, including, without limitation, reasonable
attorneys' fees, in an effort to collect such amounts from Associates.
5. AMENDMENTS OF PARTNERSHIP AGREEMENTS. Prior to the execution
of this Agreement, Progress Parties, the Partnership and Associates have
executed and delivered an amendment to the Partnership Agreement in the
form attached hereto as Exhibit F. Associates, 14-15 Office Associates,
PPI and 900 Realty have executed and delivered the amendment to the
partnership agreement of PC-900 in the form attached hereto as Exhibit G.
Associates, 900 Realty, P-C 900, and 14-15 Office Associates have executed
and delivered the amendment to the Partnership Agreement in the form
attached hereto as Exhibit H.
6. TRANSFER TAXES. If any property transfer taxes or real estate
transfer taxes are due and payable in connection with (a) the acquisitions
by Associates (and/or by any nominee, affiliate or related party of
Associates, including 14-15 Office Associates) of all of the right, title
and interest in the Partnership and in PC-900, including the Partnership
Interests and the limited partnership interest of the FDIC in P-C 900,
and/or (b) any prior transaction(s) with which such acquisitions may be
aggregated for tax purposes relating to any acquisitions by 900 Realty of
any interest in the Partnership or of the general partnership interest in
P-C 900, 900 Realty unconditionally and irrevocably agrees to pay the same
when due, and to defend, indemnify and hold the Associates Group (as
defined herein) harmless from any liabilities, claims or expenses on
account of such unpaid taxes, including without limitation of any other
rights it may have, interest, penalties, and reasonable attorneys' fees and
other costs related thereto; provided, however, that if the taxes payable
in connection with such acquisitions or transactions include taxes
attributable to the acquisition by Associates (and/or by any nominee,
affiliate or related party of Associates) of the limited partnership
interest in P-C 900 held by the FDIC, then upon demand of 900 Realty,
Associates shall contribute to the payment of the total amount of taxes
due hereunder an amount equal to the tax on the fair market value as of
the date of this Agreement of such limited partnership in P-C 900, such
amount not to exceed twenty-four percent (24%) of the total amount of such
taxes attributable to the acquisitions contemplated under clause (a) of
this paragraph 6 ("Associates Contribution"), together with interest or
penalties, if any, attributable thereto. The foregoing payment by
Associates is subject to 900 Realty's simultaneous payment of the balance
of the total amount of said taxes due hereunder, including interest and
penalties, if any. All rights, if any, to seek payment or reimbursement
from the FDIC (including any right of contribution, indemnity or
subrogation) on account of the taxes paid hereunder by 900 Realty or in
connection with the payment made by Associates of the Associates
Contribution hereunder shall belong solely to Associates. 900 Realty shall
have the right to contest the payment of taxes assessed in connection with
all (but not less than all unless Associates otherwise agrees in writing)
of the acquisitions and transactions referred to in this Section 6 and to
defer payment of such taxes; provided, however, that such right of contest
shall terminate and 900 Realty shall pay such amounts due hereunder upon
the first to occur of (i) a ruling by a State or City or other governmental
agency of New York from which no further appeal may be taken, or (ii) if
such contest in any way hinders or interferes, as reasonably determined by
Associates, with Associates' ability to sell (or close any such sale of)
the Property and provided further that before initiating such contest, and
thereafter within twenty-one (21) days of Associates' request (not to
exceed once in every six months), 900 Realty provides Associates with
Minimum Statements of Net Worth (as provided for and defined in the
Agreement, Guaranty and Mutual Release attached as Exhibit I ("Release"))
from each of the 900 Realty Members (as defined in the Release). If 900
Realty shall fail to provide any of the foregoing Minimum Statements of Net
Worth when due, it shall have no further right of contest and shall
immediately pay the taxes due together with all interest and penalties
thereon and any other costs relating thereto. Subject to the foregoing,
Associates shall reasonably cooperate in such contest and, if 900 Realty
notifies Associates of its intent to contest such taxes prior to initiating
such contest and Associates does not object in writing to such contest
within seven (7) days of delivery of the foregoing notice, Associates shall
pay for twenty-four percent (24%) of the legal expenses and costs incurred
and payable by 900 Realty in contesting the taxes attributable to the
acquisitions contemplated under clause (a) of this paragraph 6, provided
900 Realty simultaneously pays the balance of such expenses and costs due
and payable, and Associates shall have no other liability for interest or
penalties or any other claims, expenses or costs relating to such unpaid
taxes. Wherever used in this Agreement, "Associates Group" means
Associates, the Partnership, 14-15 Office Associates, and PC-900 (after
giving effect to the acquisitions of Associates and/or its affiliates of
the interest therein), together with its partners (other than the Progress
Parties), partners of their partners (including, without limitation, in the
case of Associates, Carlyle Real Estate Limited Partnership-XIV, Carlyle
Real Estate Limited Partnership-XV, JMB Realty Corporation), members, and
each of the foregoing's officers, directors, affiliates of every kind or
nature (including in the case of Associates, JMB Property Management
Company and ▇▇▇▇▇▇▇ Properties of New York, Ltd.), agents, employees, and
attorneys. 900 Realty shall also promptly provide Associates with copies
of all tax notices and all correspondence, petitions, briefs and other
filings made by itself or New York City or State in connection with the
contest of any tax deficiency.
7. INDIVIDUAL RELEASES. Concurrently with the execution and
delivery of this Agreement, the Progress Parties shall deliver to
Associates an original of the Release attached hereto as Exhibit I duly
executed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
8. CONDITION TO EFFECTIVENESS. This Agreement shall be effective
upon the execution and delivery of all parties hereto.
9. TAX RETURNS AND REPORTING.
(a) Associates shall cause the Partnership to and the Partnership
shall: (i) provide the Progress Parties with a copy of the final United
States federal income tax return of the Partnership (including Schedules K-
1 for the Progress Parties) for the year ended December 31, 1998 (the "1998
Partnership Tax Return") which return shall provide that income
attributable to the Progress Parties does not exceed thirty percent (30%)
of income attributable to the Partnership;
(ii) file with the Internal Revenue Service (the "Service")
and provide to PPI and JRA Schedules K-1 to the 1998 Partnership Tax Return
showing the distributive shares of PPI and JRA of the income or loss of the
Partnership for the period January 1, 1998 to December 31, 1998; and
(iii) file with the Service and provide to 900 Realty a
Schedule K-1 to the Partnership tax return for the year ended December 31,
1999 showing the distributive share of 900 Realty of the income or loss of
the Partnership for the period January 1, 1999 through the date preceding
the date hereof; which return shall provide that income attributable to 900
Realty does not exceed thirty percent (30%) of income of the Partnership
for the year ended December 31, 1999; such income to be calculated based on
900 Realty's share of the Partnership's income for the entire year prorated
for the period January 1, 1999 through March 22, 1999;
(b) If the federal, state or local income tax return of the
Partnership for 1999 or any preceding year is audited by the Service or by
any state or local taxing authority, the Partnership shall provide
reasonable notice of such audit to 900 Realty. The Partnership shall have
the right to settle any such audit without the consent of PPI or any other
Progress Party in the case of any audit for 1998 and preceding years and
900 Realty or any other Progress Party in the case of audits for 1998 and
1999.
(c) State and local income tax returns of the Partnership for the
years ended on December 31, 1998 and December 31, 1999 shall be consistent
with the federal income tax returns of the Partnership in prior years.
(d) The federal, state and local income tax returns filed by the
Progress Parties shall be consistent with, and such parties shall not
contest, the treatment and reporting by the Partnership provided herein.
10. GENERAL REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
a. BY PROGRESS PARTIES. Each of the Progress Parties (other
than P-C 900) jointly and severally represents and warrants to Associates,
14-15 Office Associates and the Partnership that the following is true and
correct as of the date of this Agreement and shall be true and correct as
of the date of the delivery of the assignment pursuant to Paragraph 4
hereof:
(i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is the sole shareholder of
PPI, and PPI is the sole shareholder of JRA. PPI and JRA have full power
and authority to execute and deliver this Agreement, and any other document
required to be delivered by such parties hereunder (including without
limitation the documents delivered pursuant to paragraphs 3, 5 and 7
hereof), and to quitclaim and assign any and all rights, title and
interests they have or may have in, and claims against, the Partnership,
Associates and PC-900 as provided in paragraph 2.
(ii) The copy delivered by 900 Realty to
Associates of the agreement dated January 13, 1998 between 900 Realty and
MDIF is a true and complete copy of the original, constitutes the entire
agreement between the parties and has not been amended, either orally or in
writing, and 900 Realty owns all of the claims against PPI, JRA the
Partnership or its partners previously held by MDIF (except to the extent
such claims have been partially satisfied or discharged in connection with
the foreclosure sale of the PPI/JRA Partnership Interests).
(iii) ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ are the sole members of 900 Realty, and 900 Realty has not
transferred, assigned, pledged, granted a lien on, or otherwise disposed of
any interest in, or claims against, PPI, JRA, the Partnership or its
partners, including the claims it acquired from MDIF (except to the extent
such claims have been partially satisfied or discharged in connection with
the foreclosure sale in which it acquired the PPI/JRA Partnership
Interests).
(iv) No Progress Party has assigned, transferred,
disposed of, pledged or granted a lien to or in favor of any person with
respect to its interest in the Partnership or its interest in any other
Progress Party (except for the Associates' Lien, the collateral assignment
of their interests under Partnership Agreement to Associates and the
Partnership and the liens granted to MDIF that were assigned to 900 Realty)
or with respect to any claim against or relating to the Partnership or
Associates previously held by it or the Released Claims disposed of by this
Agreement.
(v) There is no lawsuit in which any of the
Progress Parties is a party that is not referred to in the recitals to this
Agreement and there are no claims against or liabilities of the Partnership
caused or incurred by any Progress Party, except the existing first
mortgage loan to Teachers Insurance and Annuity Association of America.
(vi) Each of the Progress Parties is duly
authorized and empowered to enter into this Agreement, and the signatory
designated below for each such party has full authority and power to bind
such party to the representations, warranties, terms and conditions of this
Agreement, and this Agreement is valid and enforceable in accordance with
its terms.
(vii) To the best knowledge of each of the Progress
Parties (a) none of them or ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ or
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any entity which any of them or the foregoing individuals
control or in which any of them or the foregoing individuals own any
interest holds any interest, direct or indirect, in Associates, its
partners, its partners of partners or their Affiliates (which for purposes
of this Agreement shall have the meaning as defined in Section 6.3 of the
Partnership Agreement), (b) none of them has authorized or consented to or
made any amendments to the Partnership Agreement, except for the amendment
referenced in paragraph 5 herein, and (c) none of them has authorized any
amendments to the Agreement of Limited Partnership of P-C 900 Third
Associates, dated February 26, 1986, by and between PPI and Central
National Bank of New York, except for the amendment referenced in paragraph
5 herein.
(viii) None of the Progress Parties, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ has engaged, or caused the
Partnership to engage, any broker with respect to the Property or the
transfer of the Partnership Interests hereunder.
(ix) 900 Realty is the sole holder and owner of all the
right, title and interest in the Partnership, PC-900 and the Property (and
in all claims against the Partnership and/or Associates) formerly held by
PPI and JRA.
(xi) 900 Realty has good and marketable title to the
Partnership Interests transferred to Associates pursuant to the assignment
(the "Assignment") attached hereto as Exhibit D (and full power and
authority to transfer same) free and clear of any defects, liens or
encumbrances, other than any Associates' lien and such interests shall be
transferred to Associates, in each case free and clear of any defects,
liens or encumbrances, other than the Associates' lien, upon delivery of
the Assignment.
(xii) Each of the Closing Documents (defined hereafter)
was duly executed by the person who purported to sign it and said person
was duly authorized and competent to execute such document and each of the
Closing Documents is valid and enforceable in accordance with its terms.
(xiii) P-C 900 has no obligations or liabilities (other
than its obligations and liabilities with respect to claims by Associates
and other than any liabilities which it may have under general partnership
law or by reason of its status as a general partner of the Partnership) and
there are no pending or, to the best knowledge of the Progress Parties,
threatened claims of any kind or nature against P-C 900 (except for claims
asserted in the FDIC Cases), and all of PC-900's right, title and interest
in the Partnership is owned and held by P-C 900 free and clear of any
liens, encumbrances or defects (other than the Associates' Lien or any
claims by Associates).
(xiv) The Partnership Interests conveyed by 900 Realty to
Associates hereunder were acquired by it for fair consideration and for
reasonably equivalent value.
(xv) There are no agreements of any kind or nature between or
among, on the one hand, PC-900 and, on the other hand, any other Progress
Party, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ other
than the Partnership Agreement, this Agreement or any Closing Document.
(xvi) Without limitation of any other provisions hereof, after
the consummation of the transactions contemplated by this Agreement, there
are no interests in the Partnership that are not owned by Associates and P-
C 900 or 14-15 Office Associates, provided the foregoing representation and
warranty does not include any transfers of interest by Associates.
b. BY ASSOCIATES. Associates represents and warrants to the
Progress Parties that the following is true and correct as of the date
hereof:
(i) Except for the collateral assignment under
the Partnership Agreement, Associates has not previously assigned, pledged
or granted a lien on its interest in the Partnership or any claim against
any Progress Party to any other party.
(ii) Associates is duly authorized and empowered
to enter into this Agreement, and the signatory designated below has full
authority and power to bind such party to the representations, warranties,
terms and conditions of this Agreement.
(iii) Except for the interests Associates (or its
nominee, affiliate or related party) intends to acquire in P-C 900, neither
Associates or any Affiliate of Associates holds any interest, direct or
indirect, in any Progress Party, its partners, or affiliates.
(iv) Associates has not authorized or made any
amendments to the Partnership Agreement, except for Exhibit F and H.
c. INDEMNIFICATION. Each of the Progress Parties
(other than P-C 900) jointly and severally agree to indemnify, defend and
hold harmless the Associates Group from and against any demands or claims
of every kind or nature (including claims of third parties or any person
claiming through or under any of the Progress Parties), damages, costs,
expenses, liability or losses suffered as a result of any inaccuracy or
breach of the representations and warranties or of any covenant or
agreement made by any of the Progress Parties in this Agreement or in any
Closing Document (as defined herein), provided that the Progress Parties
shall only be required to pay the fees and expenses of one law firm (and
local or special counsel, if engaged and any law firms engaged in
substitution for such firm or counsel) to defend the Associates Group,
whether one or more members of the Associates Group have been sued.
Associates agrees to indemnify, defend and hold harmless each of the
Progress Parties from and against any demands or claims of every kind or
nature (including claims of third parties or any person claiming through or
under Associates), damages, costs, expenses, liability or losses suffered
by them as a result of any inaccuracy or breach of the representations and
warranties or of any covenant or undertaking made by Associates in this
Agreement or in any Closing Document, provided that the Associates Group
shall only be required to pay the fees and expenses of one law firm (and
local or special counsel, if engaged, and any law firms engaged in
substitution for such firm or counsel) to defend the Progress Parties,
whether one or more of the Progress Parties have been sued. Wherever used
in this Agreement, "Closing Document" shall mean any document executed and
delivered in connection with this Agreement or any other agreement entered
into in connection with this Agreement, including all Exhibits . The
Partnership agrees to indemnify, defend and hold each of the Progress
Parties harmless from any wrongful act or omission of the Partnership first
occurring after the Closing Date, provided that the Partnership shall only
be required to pay the fees and expenses of one law firm (and local or
special counsel, if engaged, and any law firms engaged in substitution for
such firm counsel) to defend the Progress Parties, whether one or more of
the Progress Parties have been sued.
11. MUTUAL RELEASE. Except for each party's obligations hereunder
and the obligations of the parties under any Closing Document, each of the
parties hereto hereby releases, forgives and discharges each of the other
parties hereto and their respective partners, partners of their partners
(including, in the case of Associates, Carlyle Real Estate Limited
Partnership-XIV, Carlyle Real Estate Limited Partnership-XV, and JMB Realty
Corporation), members, and each of the foregoing's officers, directors,
affiliates of every kind or nature (including in the case of Associates,
JMB and ▇▇▇▇▇▇▇), agents, employees, and attorneys, and each of them, of
and from all matters, claims, liabilities, demands, causes of action,
debts, obligations, promises, acts, agreements, interests, damages or
interests of whatever kind or nature, and any attorneys fees and expenses
that may be related thereto, whether known or unknown, which such party has
or may hereafter incur or acquire against any of the others by reason of or
relating to any reason, cause or event concerning or arising from the
relationship between or among any of the Progress Parties, the Partnership,
and Associates related to the Partnership or the Property that has
happened, accrued, developed or occurred on or prior to or as of the date
hereof, including without limitation all claims or interests asserted or
that could have been asserted by (i) any of the Progress Parties or
Associates in the Partnership Litigation, (ii) any party pursuant to the
Partnership Agreement, including without limitation claims by the Progress
Group for Guaranteed Payments and by the Partnership for capital
contributions from Associates under Sections 1.7, 2.2 and 3.1 of the
Partnership Agreement and any claim by any party with respect to any
financial obligation under the Partnership Agreement, including, without
limitation, with respect to any distributions by the Partnership, any
refinancing, any capital contribution or otherwise, (iii) any party,
including, without limitation, the MDIF, on account of any MDIF-related
Claim or on account of the MDIF's assignment of the MDIF Interests to 900
Realty, (iv) any party in any of the FDIC Cases, (v) any party arising out
of or related to the management and leasing of the Property by JMB or
▇▇▇▇▇▇▇, and (vi) the Partnership against any party hereto or by any party
against the Partnership, relating to or arising from the Distribution
Claims, and (vii) by any Progress Party who has acquired or may acquire any
interest in any partner of Associates (collectively "Released Claims").
12. DEFENSE AND INJUNCTION. The provisions of this Agreement may
be pleaded as a full and complete defense to, and may be used as the basis
for an injunction against, any action, suit or other proceeding that may be
instituted, prosecuted or attempted in breach of this Agreement.
13. WAIVER AND RELEASE. The parties hereto expressly waive any and
all rights under any applicable statute, doctrine or principle of law
restricting the right of any person to release claims which such person
does not know or suspect to exist at the time of executing the release,
which claims, if known, may have materially affected such person's decision
to give such releases. In connection with such waiver and relinquishment,
the parties hereto acknowledge that they are aware that they may hereafter
discover claims presently unknown or unsuspected, or facts in addition to
or different from those which they now know or believe to be true, with
respect to the matters released herein. Nevertheless, it is the intention
of the parties hereto through this Agreement to fully, finally and forever
settle and release all such matters, and all claims relative thereto, which
now exist, may exist or theretofore have existed between or among any of
the parties hereto as described above. Notwithstanding the foregoing or
any other provision in this Agreement to the contrary, nothing in this
Agreement shall be construed as a waiver or release of any representation,
warranty, covenant, agreement, obligation or liability provided for in this
Agreement or in any Closing Document.
14. FUTURE ACQUISITION. Each Progress Party agrees that it shall
not acquire any interest hereafter, direct or indirect, in Associates,
their partners (or any of their partners or affiliates), and no Progress
Party shall assist any other person in acquiring such interest or in
transferring any interest in the Property or the Partnership, or knowingly
communicate, directly or indirectly, with any person holding such interest
with respect to such interest.
15. AMENDMENT OF AGREEMENT; NO ASSIGNMENTS. This Agreement shall
not be amended except by a writing signed by Associates and 900 Realty. No
party hereto shall be permitted to assign any right or delegate any duty
hereunder without the prior written consent of Associates and 900 Realty.
16. ENTIRE AGREEMENT. This Agreement, including all exhibits and
Closing Documents, constitutes the entire agreement of the parties hereto
as to the subject matter hereof. The undersigned acknowledge that all
prior agreements or understandings within the scope of the subject matter
of the Agreement are, upon the execution and delivery of this Agreement,
superseded, null and void.
17. GOVERNING LAW. This Agreement shall be construed and governed
by the internal laws of the State of New York without regard to its
conflict of law provisions.
18. NO WAIVER. No delay or omission of any party hereto to
exercise any right hereunder shall impair such right or be construed to be
a waiver of any default or an acquiescence therein.
19. HEADINGS, EXHIBITS. Section headings herein are for
convenience of reference only and shall not govern the interpretation of
any of the provisions hereof. Each of the exhibits attached hereto is
hereby by this reference incorporated herein. Any place in this Agreement
or any Closing Document where the word "including" is used shall be deemed
to include "without limitation."
20. COUNTERPARTS. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto were upon
the same instrument. Delivery of this Agreement by fax transmission shall
be effective and binding on all parties hereto and shall be deemed to have
the same effect as delivery of the original counterpart.
21. DRAFTING. Each party hereto has participated in the drafting
of this Agreement and no adverse inference shall be drawn against any party
on account of their responsibility for drafting this Agreement.
22. CONFIDENTIALITY. The terms, conditions and other provisions of
this Agreement shall be kept strictly confidential except to the extent
disclosure is required by law (including such disclosure as is deemed
necessary in connection with any documents or reports filed with the
Securities & Exchange Commission by Associates or its partners) or to the
extent such disclosure is necessary for a valid purpose to any party's
attorneys, accountants or business advisors.
23. SUCCESSOR AND ASSIGNS. Subject to paragraph 15 hereof, this
Agreement shall be binding on the successors and assigns of each party
hereto.
24. NO ADMISSION. Nothing herein shall be construed as an
admission of liability by any party of the Released Claims which are
settled and disposed of herein.
25. FURTHER ASSURANCES. The parties hereto agree to do such
further acts and things, and to execute and deliver such additional
agreements, conveyances, assignments and instruments, as any other party
may at any time reasonably request in connection with the implementation,
administration and enforcement of this Agreement or in connection with the
sale of the Property at any time hereafter. In addition, the parties
hereto agree not to (and to cause their agents, officers, directors,
shareholders, members and affiliates not to) take any action inconsistent
with the terms hereof, including without limitation by acquiring (other
than as referenced herein) any direct or indirect interest in any other
party hereto for any purpose whatsoever without the consent of all other
parties hereto.
26. NO OTHER CONSENTS. Each of the parties to this Agreement
represents and affirms that no other consents by or from any other person,
entity or government authority are necessary to render binding and
enforceable such party's signature hereto and obligations and agreements
hereunder.
27. EXCULPATION. No present or future partner of Associates or of
any partner of any such partner (or any other partners of any tier) shall
have any personal liability of any kind or nature for or by reason of any
matter or thing whatsoever, under or in connection with this Agreement or
any other agreement entered into under or in connection herewith, and the
other parties hereto waive all such personal liability. However, the
foregoing shall not limit the right of any party hereto to enforce its
remedies for breach or default by Associates hereunder against the assets
of Associates (as opposed to the assets of any such partners), which assets
for purposes hereof shall not be deemed to include any negative capital
accounts or commitments to provide additional capital. Until the Closing
Balance is paid in full, before making any distributions to either Carlyle
Real Estate Limited Partnership-XIV or Carlyle Real Estate Limited
Partnership-XV from the proceeds of a refinancing or sale of the Property,
Associates shall segregate and reserve for the exclusive use of paying the
Closing Balance from such proceeds an amount equal to the Closing Balance.
28. Notwithstanding Sections 11 and 13 or anything else in this
Agreement to the contrary, nothing herein shall limit, waive or release any
right of Associates to collect or foreclose on the Associates' Note (except
for interest accrued thereon through the date of this Agreement, which is
hereby waived) provided that with respect to any action or judgment which
may be obtained or secured or taken by Associates, Associates shall look
solely to the Partnership Interests (including the proceeds therefrom) to
satisfy the Associates' Note, and Associates will not collect or attempt to
collect any such judgment out of any other assets of the Progress Parties.
29. 900 Realty, PPI and JRA hereby waive and release any right of
contribution or indemnity any of them has or may have against PC-900 in
connection with any liabilities hereunder, under Partnership Agreement or
in connection with any Closing Document.
30. SUBMISSION TO JURISDICTION. All disputes arising out of or
relating to this Agreement and all actions to enforce this Agreement may be
adjudicated in the state or federal courts of either the City of New York
or City of Chicago and each of the parties to this Agreement hereby
irrevocably submits to the jurisdiction of such courts in any suit, action,
or proceeding arising out of or relating to this Agreement or in any action
to enforce this Agreement.
31. No person is intended to be a third-party beneficiary of this
Agreement, except for a member of 900 Realty or the Associates Group.
32. NOTICE. All notices and other communications provided for
hereunder shall be in writing and mailed or delivered to the address set
forth below. All such notices and other communications shall, when mailed
or hand delivered be effective upon receipt; provided, however, in the
event that a notice or communication so sent shall be refused,
undeliverable or the intended recipient shall otherwise prevent such
receipt, such notice or other communication shall be deemed to be received
on the date of such rejection, attempted delivery or prevention. All such
notices and other communications shall, when sent by overnight courier, be
effective one business day after the same are deposited with such overnight
courier. All notices and other communications provided for hereunder shall
be addressed as set forth below.
If to:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Associates JMB Realty Corporation
14-15 Office Associates, L.P. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, 19th Flr.
P-C 900 Third Associates ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇, Gerber & ▇▇▇▇▇▇▇▇▇
Two North LaSalle Street
Suite 2100
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to any of
the Progress Parties: Wiener Realtors
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
or to such other address as each party may designate for itself by notice
given in accordance with this paragraph 32.
IN WITNESS HEREOF, the parties have executed this Agreement the day
and year first above written.
PROGRESS PROPERTIES, INC.
By:
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Its:
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J.R.A. REALTY CORPORATION
By:
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Its:
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P-C 900 THIRD ASSOCIATES
By: 900 Realty LLC, General Partner
By:
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Its:
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PROGRESS PARTNERS
By: Progress Properties, Inc., General
Partner
By:
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Its:
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By: J.R.A. Realty Corporation, General
Partner
By:
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Its:
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By: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Associates, General Partner
By: Carlyle Real Estate Limited
Partnership-XIV, a General Partner
By: JMB Realty Corporation, a
General Partner
By:
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Its:
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900 REALTY, LLC
By:
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Its:
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▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ASSOCIATES
By: Carlyle Real Estate Limited Partnership-XIV,
a General Partner
By: JMB Realty Corporation, a
General Partner
By:
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Its:
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