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EXHIBIT 10.52
PUT-CALL OPTION
AGREEMENT
THIS PUT-CALL OPTION AGREEMENT (this "Agreement") is dated and made
effective as of January 6, 1997, by and between NHP Incorporated, a Delaware
corporation ("NHP"), and Property Resources Corporation, a New York corporation
("PRC").
RECITALS
A. NHP and PRC own of record and beneficially 15% and 85%, respectively,
of the membership interests in NHP/PRC Management Company LLC, a
Delaware limited liability company (the "LLC").
B. NHP and PRC desire to enter into an agreement, whereby (1) NHP shall
have the option to purchase all of PRC's membership interests in the
LLC (the "Membership Interests") (the "Call Option") and (2) PRC shall
have the option to cause NHP to purchase all of the Membership
Interests (the "Put Option"), subject to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties hereto agree as follows:
1. GRANTS OF CALL OPTION AND PUT OPTION. Subject to the terms and
conditions set forth herein, PRC hereby grants the Call Option to
NHP, and NHP hereby grants the Put Option to PRC.
2. EXERCISE OF OPTIONS.
(a) CALL OPTION. NHP may exercise the Call Option, in whole but
not in part, by notifying PRC, in accordance with Section
2(c) hereof, of its intention to do so (the "Call Exercise
Notice") at any time during the period from and including
the one (1) year anniversary of the "Put Option Expiration
Date" (hereinafter defined) to and including the date which
is 120 days after receipt of notice from PRC regarding the
occurrence of the Put Option Expiration Date.
(b) PUT OPTION. PRC may exercise the Put Option, in whole but
not in part, by notifying NHP, in accordance with Section
2(c) hereof, of its intention to do so (the "Put Exercise
Notice") at any time during the period from and including
the date hereof to and including January 15, 2002 (the "Put
Option Expiration Date"). The Put Option may be exercised
notwithstanding the occurrence of an Event of Default (as
defined below).
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(c) NOTICE. The Call Exercise Notice or the Put Exercise
Notice, as the case may be, shall be in writing and shall
specify a place, time and date, not earlier than 30 days nor
later than 60 days from the date of such notice, for the
closing of the purchase of the Membership Interests;
provided, however, that in the case of when the Put Option
is exercised, and upon the occurrence of an Event of Default
(as such term is defined in the Assignment dated as of the
date hereof by PRC in favor of NHP (the "Assignment")), the
closing shall be accelerated to a date no later than the
date on which NHP seeks payment of the Obligations (as such
term is defined in the Assignment).
3. PURCHASE PRICE PAYMENT.
(a) CALL OPTION. The purchase price for the purchase of the
Membership Interests upon the exercise of the Call Option
shall be Four Million Three Hundred Fifty-three Thousand
Nine Hundred Dollars ($4,353,900.00).
(b) PUT OPTION. The purchase price for the purchase of the
Membership Interests upon the exercise of the Put Option
shall be Three Million Seven Hundred Eighty-six Thousand
Dollars ($3,786,000.00).
(c) PAYMENT. The purchase price payable pursuant to Section
3(a) or 3(b) (the "Purchase Price") shall be paid in cash at
the closing on the purchase of the Membership Interests.
The Purchase Price shall be paid in immediately available
funds by wire transfer to a bank account designated by PRC,
or by such other arrangement as may be mutually agreed upon
in writing by NHP and PRC.
4. REPRESENTATIONS AND WARRANTIES. Each party hereto hereby
represents and warrants to the other party hereto as follows:
(a) AUTHORIZATION. Such party has all requisite corporate
power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. This
Agreement is a legal, valid and binding obligation of such
party enforceable against it in accordance with its terms.
(b) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The
execution, delivery and performance of this Agreement, and
the consummation of the transactions contemplated hereby,
will not violate, or result in a breach of any of the terms
or provisions of, or constitute a default under, or conflict
with, such party's organizational documents, or any
agreement, indenture or other instrument to which such party
is a party or by which it or any of its properties is bound,
or any judgment, decree, order, writ, award or injunction of
any court,
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governmental body or arbitrator, or any law, rule
or regulation applicable to such party.
(c) CONSENTS AND APPROVALS. No consent, approval or
authorization from any governmental entity or otherwise,
notice to or filing with is required in connection with the
execution, delivery and performance of this Agreement by
such party and/or the consummation by such party of the
transactions contemplated hereby, except for notice required
by the LLC Operating Agreement of even date herewith.
5. EXPENSES. Except as may be expressly set forth herein, each of
the parties hereto shall bear and pay all costs and expenses
incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including fees and expenses
of its own financial consultants, investment bankers, accountants
and counsel. In the event the Put Option is exercised by PRC, and
NHP fails to pay PRC the purchase price set forth in Section 3(b)
hereof, in accordance with the terms and conditions hereof, NHP
promises to pay all costs of collection, including, but not
limited to, reasonable attorneys' fees and expenses, whether suit
be brought or not. In the event that the Call Option is exercised
by NHP, and PRC fails to immediately deliver the Membership
Interests to NHP in accordance with the terms and conditions
hereof, PRC promises to pay all costs of collection, including,
but not limited to, reasonable attorneys' fees and expenses,
whether or not suit is filed.
6. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
of this Agreement.
7. SEVERABILITY. If any one or more of the provisions herein, or the
application thereof in any circumstances, is held invalid, illegal
or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other
respect, and of the remaining provisions, shall not be in any way
impaired or affected. In such event, there shall be added as part
of this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be
legal, valid and enforceable. The effective date of the added
provision shall be the date upon which the prior provision was
held to be invalid, illegal or unenforceable.
8. ENTIRE AGREEMENT; BINDING EFFECT. This Agreement constitutes the
entire agreement by and between the parties with respect to the
subject matter hereof, and there are no representations,
warranties, covenants, or obligations with respect thereto except
as set forth herein. This Agreement supersedes all prior and
contemporaneous agreements, understandings, negotiations and
discussions, written or oral, of the parties hereto, relating to
any transaction contemplated hereunder. Nothing in this Agreement
is intended or shall be construed to confer upon or to give any
person
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other than the parties hereto and their respective legal
representatives, successors and permitted assigns any rights or
remedies under or by reason of this Agreement.
9. NOTICES. All notices, directions, requests, consents and other
communications hereunder ("Communications") shall be in writing
and shall be deemed given (i) when delivered personally to the
recipient, (ii) when sent to the recipient by telecopy (with
receipt electronically confirmed by sender's machine) if prior to
6 p.m. (Eastern Time) on a business day, otherwise on the next
business day, or (iii) one (1) business day after the date sent to
the recipient by reputable express courier service (charges
prepaid) to the parties at the following addresses or telecopier
numbers (or at such other address, or telecopy number for a party
as shall be specified by like notice): (a) if to NHP at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, Executive Vice President and a copy to ▇▇▇▇ ▇▇▇▇▇▇,
Esquire, General Counsel (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire, ▇▇▇▇▇▇▇ & Berlin, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇); (b) if to PRC at ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
(Fax: ▇▇▇-▇▇▇-▇▇▇▇) with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire,
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, One Citicorp Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇). All
Communications shall be deemed to have been received: (i) when
received, if personally delivered; (ii) when receipt confirmed,
if telecopied; and (iii) the next business day after timely
delivery to the courier, if sent by overnight courier. Any person
entitled to receive notice under this Section 9 may change such
person's address or other information by notice given in
accordance with this Section 9.
10. FURTHER ASSURANCES. Each party hereto agrees to do such further
things and to execute such further documents as may be necessary
to effectuate this Agreement and the transactions contemplated
herein, including, but not limited to, securing all necessary
consents and permissions, and giving all necessary notices.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their
respective successors and permitted assigns. Neither this
Agreement nor any of the rights, interests or obligations
hereunder may be transferred or assigned by any party hereto
without the express prior written consent of the other party
hereto; provided, however, that (i) NHP may transfer and assign
this Agreement to any "affiliate" (as such term is defined in Rule
405 of Regulation C promulgated under the Securities Act of 1933,
in effect as of the date hereof) of NHP without the prior written
consent of PRC, which assignment shall not relieve NHP of its
obligations hereunder, and (ii) PRC's (and any subsequent
assignee's) rights and obligations hereunder shall automatically
be assigned and transferred, with no further action required by
any party, in connection with the assignment and transfer of the
Membership Interests effected in accordance with the Operating
Agreement of NHP/PRC Management Company LLC dated the
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date hereof by and between PRC and NHP Management Inc., which
assignment and transfer will not relieve PRC of any liability
hereunder.
12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall
constitute but one agreement.
13. SPECIFIC PERFORMANCE. The parties agree that damages would be an
inadequate remedy for a breach of the provisions of this Agreement
by either party hereto and that this Agreement may be enforced by
either party hereto through injunctive or other equitable relief,
in addition to, but not in limitation of, any and all other
remedies available to the parties. In the event that either party
shall institute any action specifically to enforce the other
party's performance of this Agreement, such other party shall
waive the defense that the party seeking specific performance has
an adequate remedy at law.
14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to
contracts entered into and performed fully in such state (without
giving effect to conflict of law principles.)
15. ARBITRATION. Except to the extent this Agreement provides
otherwise, any dispute arising under this Agreement shall be
resolved by arbitration as hereinafter provided. The party
desiring arbitration shall give written notice to that effect to
the other party and to such party's counsel, as provided for in
Section 9 hereof. The party initiating the arbitration shall send
a copy of the notice initiating the arbitration to the American
Arbitration Association (or its successor) and shall request that
the American Arbitration Association select within 10 days
thereafter an individual who meets the following criteria to act
as the arbitrator. The arbitrator must be (i) "independent,"
i.e., not having at that time or at any time within the
immediately preceding five (5) years a substantial relationship
with either party to the arbitration, any Affiliate of either such
party, or any officer or director of any such party or Affiliate
(ii) an attorney having at least ten (10) years experience, and
(iii) knowledgeable in the area of finance. No party to the
arbitration shall have any right to object to the individual named
as the arbitrator except upon the ground that the named individual
does not meet the aforesaid criteria. If more than one
arbitration is conducted pursuant to this Agreement, the parties
agree to use the same arbitrator, subject to his or her
availability. The arbitration shall be conducted in the City of
New York and, to the extent consistent with this Paragraph, in
accordance with the expedited procedures set forth in and
otherwise in accordance with the then Commercial Arbitration Rules
of the American Arbitration Association (or any organization
successor thereto). The arbitrator shall be instructed to proceed
with all reasonable diligence to resolve the dispute by no later
than 30 days after the date on which the American Arbitration
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Association received the request to initiate the arbitration, to
render his decision in writing and to deliver counterpart copies
thereof to each of the parties. The arbitrator may issue a
default award against a party that fails to appear at any meeting
or hearing scheduled by the arbitrator or which attempts to delay
the arbitration. Such decision shall be binding, final and
conclusive on the parties. Judgment may be had on the decision so
rendered in any court of competent jurisdiction, federal or state,
and may be enforced in accordance with the laws of the State of
New York. The fees of the arbitrator, the fees and expenses of
respective counsel engaged by the parties, the fees and expenses
of expert witnesses and other witnesses called by the parties and
the cost of transcripts shall be paid by the party against which
the dispute is resolved, unless otherwise specified by the
arbitrator.
16. NO IMPLIED WAIVERS; REMEDIES. No failure or delay on the part of
either party in exercising any right, privilege, power or remedy
under this Agreement, and no course of dealing between parties
hereto, shall operate as a waiver of any such right, privilege,
power or remedy; nor shall any single or partial exercise of any
right, privilege, power or remedy under this Agreement preclude
any other or further exercise of such right, privilege, power or
remedy or the exercise of any other right, privilege, power or
remedy. No waiver shall be asserted against any party unless
signed in writing by such party. The rights, privileges, powers
and remedies available to the parties are cumulative and not
exclusive of any other rights, privileges, powers or remedies
provided by statute, at law, in equity, or otherwise. Except as
provided in this Agreement, no notice to or demand on either party
in any case shall constitute a waiver of the right of the party
giving such notice or making such demand to take any other or
further action in any circumstances without notice or demand.
17. CONSTRUCTION. No failure or delay on the part of either party in
exercising any right, privilege, power or remedy under this
Agreement, and no course of dealing between parties hereto, shall
operate as a waiver of any such right, privilege, power or remedy;
nor shall any single or partial exercise of any right, privilege,
power or remedy under this Agreement preclude any other or further
exercise of such right, privilege, power or remedy or the exercise
of any other right, privilege, power or remedy. No waiver shall
be asserted against any party unless signed in writing by such
party. The rights, privileges, powers and remedies available to
the parties are cumulative and not exclusive of any other rights,
privileges, powers or remedies provided by statute, at law, in
equity, or otherwise. Except as provided in this Agreement, no
notice to or demand on either party in any case shall constitute a
waiver of the right of the party giving such notice or making such
demand to take any other or further action in any circumstances
without notice or demand.
[Signatures begin on next page]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first written above.
NHP INCORPORATED
BY:
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NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
TITLE: Executive Vice President
PROPERTY RESOURCES CORPORATION
BY:
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NAME: ▇▇▇▇ ▇▇▇▇▇▇▇
TITLE: Vice President
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