Redemption Agreement between Philips International Realty, L.P. and Fred Pilevsky (April 28, 2000)
Summary
This agreement is between Philips International Realty, L.P. and Fred Pilevsky. It sets out the terms for redeeming all of Pilevsky's partnership units in exchange for interests in a limited liability company (F. Pilevsky LLC) that holds certain real estate assets. The agreement details the required property transfers, representations, and closing procedures. The transaction is contingent on the completion of related agreements and distributions, and the closing will occur at a specified law office on the date set in a related agreement.
EX-10.3 4 0004.txt EXECUTION COPY REDEMPTION AGREEMENT THIS REDEMPTION AGREEMENT (this "Agreement") is made as of April 28, 2000, by and among PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership, having an office at 417 Fifth Avenue, Third Floor, New York, New York 10016 ("Operating Partnership") and FRED PILEVSKY, an individual having a residence at 749 Wilson Court, North Woodmere, New York 11581 ("Pilevsky"). W I T N E S S E T H WHEREAS, Pilevsky currently owns 38,090 units in Operating Partnership (the "OP Units"); WHEREAS, Palm Springs Mile Associates, Ltd, a Florida limited partnership ("Palm Springs Ltd"), of which the Operating Partner is the 99.99% limited partner and Philips Palm Springs Sub-VIII, a Delaware corporation ("Philips Sub VIII") and wholly owned subsidiary of Philips International Realty Corp., a Maryland corporation ("Philips Corp."), is the .01% general partner, owns the undivided fee interest in the four parcels comprising that certain real property located in Dade County, Florida as more particularly described on Schedule A annexed hereto (the "Property"); WHEREAS, prior to the Closing Date, Operating Partnership and Philips Corp. shall have caused Palm Springs Ltd to have contributed, in fee, undivided interests in two of the parcels comprising the Property referred to as Components 1 and 2 ("Shared Parcels") having an equity value of not less than $695,143 and subject to debt of not less than $949,449 ("Pilevsky Property Interest") to a new limited liability company ("F. Pilevsky LLC") in exchange for which Palms Springs Ltd will receive all of the interests in F. Pilevsky LLC; WHEREAS, prior to the Closing Date, Operating Partnership and Philips Corp. shall have also caused Palm Springs Ltd to have contributed (I) an undivided interest, in fee, in the Shared Parcels having an equity value of not less than $1,769,210 and subject to debt of not less than $942,554 to a new separate limited liability company ("A. Pilevsky LLC"; and together with F. Pilevsky LLC, the "Palm Springs LLCs" or individually, a "Palm Springs LLC") in exchange for which Palm Springs Ltd will receive all of the interests in A. Pilevsky LLC; WHEREAS, thereafter, each of the Palm Springs LLCs and Palm Springs Ltd shall have entered into a tenancy in common agreement ("Tenancy Agreement") with respect to the Shared Parcels, which agreement shall be in form and substance reasonably acceptable to the parties; WHEREAS, prior to the Closing Date, Palm Springs Ltd shall have distributed to Operating Partnership, as non-liquidating distributions, all of the interests in each of the Palm Springs LLCs; WHEREAS, after the occurrence of all of the transactions contemplated under Articles 2, 3, 4 and 5 of the Asset Contribution, Purchase and Sale Agreement by and among the Operating Partnership, Philips Corp., Certain Affiliated Parties Signatory Thereto, KIR Acquisition, LLC and Kimco Income Operating Partnership, L.P. (the "Group B Agreement"), but prior to the redemption described in Section 1 below, Operating Partnership shall have distributed all of the interests in each of the Reconveyance LLCs (as defined in the Group B Agreement) to Kimco Income Operating Partnership, L.P. (the "Distribution"); and WHEREAS, in the manner set forth herein, in redemption of all of the OP Units, the Operating Partnership shall distribute all of the interests in F. Pilevsky LLC to Pilevsky, as more particularly set forth herein. NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and the mutual covenants and agreements hereinafter set forth, and other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Redemption. At the Closing (as defined in Section 2), Operating Partnership hereby agrees to redeem, and Pilevsky hereby agrees to have redeemed, all of the OP Units free and clear of any and all liens or other encumbrances, in exchange for which Operating Partnership shall distribute and/or assign to Pilevsky all of the interests in F. Pilevsky LLC (the "Assigned Interest"). 2. Closing. The consummation of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Pryor Cashman Sherman & Flynn LLP, 410 Park Avenue, 10th Floor, New York, New York 10022, on that date and at the time prescribed for such Closing as set forth in Section 6.2 of the Group B Agreement (the "Closing Date"). 3. Representations, Warranties and Covenants. 3.01 Operating Partnership hereby represents and warrants to Pilevsky as follows: (a) Operating Partnership is a duly formed and validly existing limited partnership organized and in good standing under the laws of the State of Delaware, each of the Palm Springs LLCs is, or will be by the Closing Date, duly formed and has been, or will be by the Closing Date, a validly existing limited liability company organized and in good standing under the laws of its state of organization and Palm Springs Ltd. is, and will by on the Closing Date, duly formed and validly existing limited partnership organized and in good standing under the laws of the State of Florida. (b) Operating Partnership has, or will have by the Closing Date, the full legal right, power and authority to execute and deliver this Agreement and Operating Partnership Documents (as defined in Section 5.01) to 2 consummate the transaction contemplated hereby and to perform its obligations hereunder and under the Operating Partnership Documents. (c) This Agreement and Operating Partnership Documents do not and will not (I) contravene any provision of the Amended and Restated Limited Partnership Agreement of Operating Partnership ("Operating Partnership Agreement"), the Amended and Restated Limited Partnership Agreement of Palm Springs Mile Associates, Ltd ("Palm Springs Ltd Partnership Agreement"), the operating agreement, if any, of any of the Palms Springs LLCs (each of which, a "Palm Springs LLC Agreement"), the Tenancy Agreement or any partnership or operating agreement of any of their respective subsidiaries or affiliates, or any judgment, order, decree, writ or injunction issued against Operating Partnership, Palm Springs Ltd., any Palms Springs LLC or any of their respective subsidiaries or affiliates; or (II) materially violate a material provision of any law or governmental ordinance, rule, regulation, order or requirement (collectively, "Laws") to which Operating Partnership, Palm Springs Ltd, any Palm Springs LLC or any of their respective subsidiaries or affiliates is or will be subject, except such violations as would not have a material adverse effect on any of the transactions contemplated hereby if finally determined adversely to such party. The consummation of the transactions contemplated hereby will not result in a breach or constitute a default or event of default by Operating Partnership, Palm Springs Ltd, any Palm Springs LLC or any of their respective subsidiaries or affiliates under any agreement to which any of them or any of their assets are or will be subject or bound (including, without limitation, Operating Partnership Agreement, the Tenancy Agreement, any Palm Springs LLC Agreement or any of the Property) and will not result in a violation of any Laws to which Operating Partnership, Palm Springs Ltd, any Palm Springs LLC or any of their respective subsidiaries or affiliates is or will be subject, except such violations as would not have a material adverse effect on the transaction contemplated hereby if finally determined adversely to Operating Partnership, Palm Springs Ltd, any Palm Springs LLC or any of their respective subsidiaries or affiliates. (d) Operating Partnership owns, or will own at the time of Closing, the Assigned Interest free and clear of any and all liens and encumbrances. (e) Upon Operating Partnership's delivery of the assignment of the Assigned Interest to Pilevsky in the manner set forth on Schedule C (the "Assignment") and all of the other Operating Partnership Documents, good and valid title to the Assigned Interest will pass to Pilevsky. (f) There are no statutory or contractual preemptive rights or rights of refusal with respect to the transfer and/or assignment of any portion of the 3 Assigned Interest, and no outstanding options, warrants or rights to acquire any part of the Assigned Interest or any interest therein. (g) No representation or warranty by Operating Partnership in this Agreement and no statement contained herein or in any document, certificate, or other writing furnished or to be furnished by Operating Partnership to Pilevsky pursuant to the provisions hereof or in connection with the transactions contemplated hereby contain or will contain any untrue statement of material fact or omits or will omit to state any material fact necessary in order to make the statements herein or therein not misleading. Operating Partnership has disclosed or will have disclosed prior to the Closing Date to Pilevsky all facts known or reasonably available to Operating Partnership that are material to the transactions contemplated herein. 3.02 Pilevsky hereby represents and warrants to Operating Partnership as follows: (a) Pilevsky has the full legal right, power and authority to execute and deliver this Agreement and Pilevsky Documents (as defined in Section 5.02), to consummate the transactions contemplated hereby, and to perform his obligations hereunder and under Pilevsky Documents. (b) This Agreement and Pilevsky Documents do not and will not contravene any judgment, order, decree, writ or injunction issued against Pilevsky, or materially violate a material provision of any Law applicable to Pilevsky, except such violations as would not have a material adverse effect on any of the transactions contemplated hereby if finally determined adversely to Pilevsky. Pilevsky hereby represents and warrants that the consummation of the transactions contemplated hereby will not result in a breach or constitute a default or event of default by him under any agreement to which he or any of his assets is subject or bound and will not result in a violation of any Laws applicable to him, except such violations as would not have a material adverse effect on the transactions contemplated hereby if finally determined adversely to him or require any consent. (c) Pilevsky owns, or will own at the time of Closing, the OP Units free and clear of any and all liens and encumbrances. (d) Pilevsky has had the opportunity to ask questions and receive financial information concerning the business and value of the Assigned Interest, the Property, the Pilevsky Property Interest and Palm Springs Ltd and is sophisticated in business financial matters and understands the benefits and risks of the investment decision contemplated hereby. Pilevsky accepts and agrees that the Assigned Interest to be received hereunder represents fair value for the OP Units to be exchanged hereunder. Pilevsky acknowledges that, were this transaction not to occur, the value 4 in the future of the Assigned Interest and the OP Units would be different than their respective value today. (e) No representation or warranty by Pilevsky in this Agreement and no statement contained herein or in any document, certificate, or other writing furnished or to be furnished by Pilevsky to Operating Partnership pursuant to the provisions hereof or in connection with the transactions contemplated hereby contains or will contain any untrue statement of material fact or omits or will omit to state any material fact necessary in order to make the statements herein or therein not misleading. Pilevsky has disclosed to Operating Partnership all facts known or reasonably available to him that are material to the transaction contemplated herein. 3.03 Between the date first written above and the Closing Date, neither Operating Partnership nor Philips Corp. shall suffer or permit Palm Springs Ltd to enter into, renew, modify, terminate or otherwise amend any agreement or other document affecting the Pilevsky Property Interest or Shared Parcels without the prior consent of Pilevsky in each instance, which consent shall not be unreasonably withheld or delayed and which consent (or denial of consent in which case Pilevsky shall also include the reasons for such denial) shall be furnished, in writing, by Pilevsky to Operating Partnership, by no later than five (5) days following Pilevsky's receipt of written notice that renewal, modification, termination or amendment of any agreement or other document affecting the Pilevsky Property Interest or Shared Parcels is being considered; Pilevsky's consent shall be deemed to have been granted if Pilevsky fails to furnish notice, in writing, to Operating Partnership of Pilevsky's denial of consent (and the reasons for such denial) by the end of such five (5) day period. 4. Conditions Precedent to Closing. 4.01 Operating Partnership's obligation under this Agreement to consummate the transaction contemplated herein is subject to the fulfillment of each of the following conditions. (a) The representations and warranties of Pilevsky contained herein shall be true, accurate and correct in all material respects as of the Closing Date, except to the extent they expressly relate only to an earlier date. (b) All consents and approvals of governmental authorities and parties to agreements to which Pilevsky is a party or by which any of his assets is bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof shall have been delivered to Operating Partnership at or prior to the Closing. (c) On or prior to the Closing Date, (i) Pilevsky shall not have applied for or 5 consented to the appointment of a receiver, trustee or liquidator for himself or any of his assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (ii) Pilevsky shall not have admitted in writing an inability to pay his debts as they mature, (iii) Pilevsky shall not have made a general assignment for the benefit of creditors, (iv) Pilevsky shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to him, (v) Pilevsky shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against him in any proceeding under any such law or statute, or had any petition filed against him in any proceeding under any such law or statute unless the same shall have been dismissed, canceled or terminated prior to the Closing Date. (d) Philips Corp. shall have received shareholder approval for the transactions hereunder. (e) This Agreement shall not have been terminated, if expressly permitted herein. (f) There shall be no litigation or administrative agency or other governmental proceeding of any kind whatsoever, pending or threatened, which would materially and adversely affect any of the OP Units. (g) The closing of title (the "Group A Closing") under and pursuant to that certain Purchase and Sale Agreement (the "Group A Agreement") dated April 28, 2000, by and among Munsey Park Associates, LLC, North Shore Triangle, LLC, Philips Yonkers, LLC, Philips Henry, LLC, Philips Shopping Center Fund, L.P. and Philips Lake Mary Associates, L.P., collectively as Seller, and Kimco Income Operating Partnership, L.P. ("Kimco") as Purchaser, for each Property or Ground Lease (each as defined in the Group A Agreement) shall have occurred or shall have been excluded or postponed pursuant to the terms of the Group A Agreement. (h) All of the material conditions to and under the Group B Agreement required to have been satisfied as of immediately before the redemption described in Section 1 above shall have been satisfied or waived. 4.02 Pilevsky's obligation under this Agreement to consummate the transaction contemplated herein is subject to the fulfillment of each of the following conditions. 6 (a) The representations and warranties of Operating Partnership contained herein shall be true, accurate and correct in all material respects as of the Closing Date, except to the extent they relate only to an earlier date. (b) All consents and approvals of governmental authorities and parties to agreements to which Operating Partnership, Palm Springs Ltd, any Palm Springs LLC or any of their respective subsidiaries and affiliates is a party or by which any asset of Operating Partnership, Palm Springs Ltd, any Palm Springs LLC or any of their respective subsidiaries or affiliates is bound (including with respect to any of the Property) that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof shall have been delivered to Pilevsky at or prior to the Closing. (c) On or prior to Closing Date, (i) neither Operating Partnership, Palm Springs Ltd, any Palm Springs LLC nor any of their respective subsidiaries or affiliates shall have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (ii) neither Operating Partnership, Palm Springs Ltd, any Palm Springs LLC nor any of their respective subsidiaries or affiliates shall have admitted in writing an inability to pay its debts as they mature, (iii) neither Operating Partnership, Palm Springs Ltd, any Palm Springs LLC nor any of their respective subsidiaries or affiliates shall have made a general assignment for the benefit of creditors, (iv) neither Operating Partnership, Palm Springs Ltd, any Palm Springs LLC nor any of their respective subsidiaries or affiliates shall have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to itself, (v) neither Operating Partnership, Palm Springs Ltd, any Palm Springs LLC nor any of their respective subsidiaries or affiliates shall have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law or statute, or had any petition filed against it in any proceeding under any of such law or statute unless the same shall have been dismissed, canceled or terminated prior to the Closing Date. (d) This Agreement shall not have been terminated, if expressly permitted herein. (e) There shall be no litigation or administrative agency or other governmental proceeding of any kind whatsoever, pending or threatened, 7 which would materially and adversely affect any of the Palm Springs LLCs or any portion of the Property. (f) All of the material conditions to the Group B Closing required to have been satisfied as of immediately prior to the redemption described in Section 1 above (including, without limitation, that the Distribution shall have been made) shall have been satisfied or waived. (g) At all times throughout its existence through and including the date of Distribution, each Reconveyance LLC shall have been a single member limited liability company that was disregarded as a separate entity for United States federal tax purposes. (h) At all times throughout its existence through and including the time of the redemption described in Section 1 above, F. Pilevsky LLC shall have been a single member limited liability company that was disregarded as a separate entity for United States federal tax purposes. (i) At the time of the Closing, the Pilevsky Property Interest shall have an equity value of not less than $695,143 and be subject to debt of not less than $949,449. 5. Delivery of Documents at Closing. 5.01 Deliveries by Operating Partnership. Operating Partnership agrees to deliver (or cause to be delivered) to Pilevsky at the Closing the following agreements and documents ("Operating Partnership Documents"), all satisfactory in form and substance to Pilevsky: (a) The Assignment, duly executed by Operating Partnership; (b) A certificate of good standing and/or subsistence, dated not more than thirty (30) days prior to the Closing Date, issued by the Secretary of State of the State of Delaware with respect to Operating Partnership, the State of Maryland with respect to Philips Corp., the State of Florida with respect to Palm Springs Ltd and the state of organization of F. Pilevsky LLC with respect to F. Pilevsky LLC; (c) Certified copies of a unanimous consent duly adopted by Philips Corp. authorizing the execution, delivery and performance of this Agreement and of each of the Operating Partnership Documents; (d) General release from Operating Partnership and Philips Corp. in the form attached as Schedule D, duly executed by Operating Partnership and Philips Corp.; and 8 (e) Such other consents, documents and instruments as may be reasonably required to effectuate the terms of this Agreement and to comply with the terms hereof. 5.02 Deliveries by Pilevsky. Pilevsky agrees to deliver (or cause to be delivered) to Operating Partnership at the Closing the following agreements and documents ("Pilevsky Documents"), all satisfactory in form and substance to Operating Partnership: (a) The Assignment, duly executed by Pilevsky; (b) General release from Pilevsky in the form attached as Schedule E, duly executed by Pilevsky; and (c) Such other consents, documents and instruments as may be reasonably required to effectuate the terms of this Agreement and to comply with the terms hereof. 5.03 Further Assurances. After the Closing, at the request of either party hereto, and without further conditions or consideration, each party shall execute and deliver from time to time such other instruments, documents, agreements and/or take such other actions as the other party may reasonably request in order to more effectively consummate the transactions contemplated herein. This Section 5.03 shall survive the Closing. 6. Remedies. If any party hereto shall be in default of or breach any of his or its respective obligations hereunder, then each party shall have such rights or remedies available at law and/or in equity, including, without limitation, the right of specific performance. 7. Notices. All notices, requests, demands, consents or waivers and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered by (i) hand, (ii) facsimile (with immediate confirmation), (iii) a nationally recognized overnight courier for next business day delivery (charges prepaid), or (iv) certified or registered mail, return receipt requested (postage prepaid): If to Operating Partnership, to: Philips International Realty, L.P. 417 Fifth Avenue, Third Floor New York, New York 10016 Attention: Louis J. Petra Facsimile: (212) 545-1355 9 With a copy to: Pryor Cashman Sherman & Flynn, LLP 410 Park Avenue New York, New York 10022 Attention: Jonathan A. Bernstein, Esq. Stephen G. Epstein, Esq. Facsimile: (212) 326-0806 If to Pilevsky, as follows: Fred Pilevsky 749 Wilson Court North Woodmere, New York 11581 Facsimile: (212) 547-5444 With a copy to: McDermott Will & Emery 50 Rockefeller Plaza New York, New York 10020-1605 Attention: Keith M. Pattiz, Esq. Facsimile: (212) 547-5444 or, in each case, to such other person or address as any party shall furnish to the other parties in writing. Notices shall be deemed to be delivered upon receipt or rejection. 8. Confidentiality. 8.01 (a) Operating Partnership, on behalf of itself and its Representatives (as defined in Section 8.03(a)), agrees that, prior to the Closing, all information relating to this Agreement shall be kept strictly confidential by Operating Partnership and its Representatives and shall not, without the prior written consent of Pilevsky, be disclosed by Operating Partnership or its Representatives, in any manner whatsoever, in whole or in part, and will not be used by Operating Partnership or its Representatives, directly or indirectly, for any purpose other than evaluating the transactions contemplated hereunder. The provisions of this Section 8.01(a) shall in no event apply to any information which is a matter of public record and shall not prevent Operating Partnership, Philips Corp., Kimco Income Operating Partnership, L.P., Kimco Income REIT, Inc. or any of their respective Affiliates or Representatives (i) from complying with any Law to which any of them is subject and (ii) from making any disclosure required to be made by any of them which any of them deem appropriate to the public, their respective shareholders or any other person or persons pursuant to any Securities and Exchange Law or other Law. 10 (b) Pilevsky, on behalf of himself and his Representatives, agrees that, prior to the Closing, all information relating to this Agreement shall be kept strictly confidential by him and his Representatives and shall not, without the prior written consent of Operating Partnership, be disclosed by him or his Representatives in any manner whatsoever, in whole or in part, and will not be used by him or his Representatives, directly or indirectly, for any purpose other than evaluating the transactions contemplated hereunder. The provisions of this Section shall in no event apply to any information which is a matter of public record and shall not prevent Pilevsky or any of his Representatives from complying with any Law to which he or any of his Representatives is subject. 8.02 (a) Operating Partnership shall indemnify and hold Pilevsky and his Representatives harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) suffered or incurred by Pilevsky or any of his Affiliate or Representatives and arising out of or in connection with a breach by Operating Partnership or any of its Affiliates or Representatives of any provision of this Section 8. (b) Pilevsky shall indemnify and hold Operating Partnership and its Representatives harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) suffered or incurred by Operating Partnership or any of its Affiliates and arising out of or in connection with a breach by Pilevsky or any of his Affiliates or Representatives of any provision of this Section 8. 8.03 As used in this Agreement, the following terms shall have the following meanings: (a) "Representative" shall mean with respect to any person, any member, shareholder, partner, manager, director, officer, trustee, principal, agent, employee, contractor, broker, and/or other representative of Operating Partnership or Pilevsky, including, the attorneys, accountants and financial advisors of any of them. (b) "Affiliate" shall mean, with respect to any person, a parent, subsidiary or other affiliate of such person. 8.04 The provisions of this Section 8 shall survive the Closing. 9. Miscellaneous. 9.01 This Agreement shall not be altered, amended, changed, waived, terminated or otherwise modified in any respect or particular, and no consent or approval 11 required pursuant to this Agreement shall be effective, unless the same shall be in writing and signed by or on behalf of the party to be affected thereby. 9.02 This Agreement may not be assigned by any party hereto. 9.03 This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and to their respective heirs, executors, administrators, successors and permitted assigns. 9.04 All prior statements, understandings, representations and agreements between the parties, oral or written, are superseded by and merged into this Agreement, which alone fully and completely expresses the agreement between them in connection with this transaction and which is entered into after full investigation, neither party relying upon any statement, understanding, representation or agreement made by the other not embodied in this Agreement. This Agreement shall be given a fair and reasonable construction in accordance with the intentions of the parties hereto, and without regard to or aid of canons requiring construction against the party drafting this Agreement. 9.05 Except as otherwise expressly provided herein, all of the parties' representations, warranties, covenants and agreements herein shall merge into the documents and agreements executed at the Closing and shall not survive the Closing. 9.06 No failure or delay of either party in the exercise of any right or remedy given to such party hereunder or the waiver by any party of any condition hereunder for his benefit (unless the time specified herein for exercise of such right or remedy has expired) shall constitute a waiver of any other or further right or remedy nor shall any single or partial exercise of any right or remedy preclude other or further exercise thereof or any other right or remedy. No waiver by any party of any breach hereunder or failure or refusal by any other party to comply with his obligations shall be deemed a waiver of any other or subsequent breach, failure or refusal to so comply. 9.07 Neither this Agreement nor any memorandum thereof shall be recorded by either party hereto and any attempted recordation hereof shall be void and shall constitute a default under this Agreement. 9.08 This Agreement may be executed in one or more counterparts, each of which so executed and delivered shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. 9.09 The caption headings in this Agreement are for convenience only and shall not be construed to modify, explain or alter any of the terms, covenants or conditions herein contained. Any and all schedules and exhibits referenced herein are by this reference hereby made a part hereof and incorporated herein. 12 9.10 This Agreement shall be interpreted and enforced in accordance with the laws of the State of New York, without reference to its conflicts of law principles and, in the event of any dispute in connection with this Agreement, venue shall be in the federal and state courts located in New York County, State of New York. 9.11 If the last day of the period prescribed herein for the giving of any notice, election, consent, approval, demand, objection or request or the submission of any documents by any party hereunder shall fall on a Saturday, Sunday or any day observed as a public holiday by the federal government or the State of New York, then such period shall be deemed to be extended to the immediately following day which is not a Saturday, Sunday or such public holiday. The term "business day" as used in this Agreement shall mean any day other than Saturday, Sunday or any day observed as a public holiday by the federal government or the State of New York. 9.12 Unless otherwise specified herein, for purposes of this Agreement (a) references to persons or parties include their permitted successors and assigns; (b) references to modifications or amendments shall in all events mean modifications and amendments; (c) references to statutes are to be construed as including all rules and regulations adopted pursuant to the statute referred to and all statutory provisions consolidating, amending or replacing the statute referred to; (d) references to agreements and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto entered into from time to time after the date hereof; (e) the words "include" or "including", and words of similar import, shall be deemed to be followed by the words "but not limited to" or "without limitation"; (f) the words "hereto", "herein", "hereof' and "hereunder", and words of similar import, refer to this Agreement in its entirety; and (g) unless otherwise specified herein, all references to Sections are to Sections of this Agreement. Terms defined herein may be used in the singular or the plural; when used in the singular and preceded by "a", "an" or "any", such term shall be taken to indicated one or more members of the relevant class; and when used in the plural, such term shall be taken to indicate all members of the relevant class. 9.13 If any provision of this Agreement shall be unenforceable or invalid, the same shall not affect the remaining provisions of this Agreement and to this end the provisions of this Agreement are intended to be and shall be severable. 9.14 The parties hereto hereby waive trial by jury in any action, proceeding or counterclaim brought by either against the other on any matter arising out of or in any way connected with this Agreement. 9.15 This Agreement shall not be binding upon any party unless and until each of the parties shall have executed and delivered a fully executed original of this Agreement to the other parties. 13 9.16 All schedules attached hereto are hereby incorporated herein by reference and made a part hereof. 9.17 In the event that any party hereto brings an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, or for an alleged breach or default of this Agreement, or any other action arising out of this Agreement or the transactions contemplated hereby, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees, disbursements and any court costs incurred in connection with such action or proceeding, in addition to any other damages or relief awarded, regardless of whether such action proceeds to final judgment. 10. As Is 10.01 Pilevsky expressly acknowledges and agrees that, subject to and in accordance with the terms and conditions of this Agreement, in connection with distribution of the Assigned Interest to Pilevsky, Pilevsky accepts the Property and Pilevsky Property Interest on an "as-is-where-is and with all faults" basis. 10.02 This Agreement, as written, contains all the terms of the agreement entered into between the parties as of the date hereof, and Pilevsky acknowledges that neither Operating Partnership nor any of its Affiliates or Representatives, has made any representations or held out any inducements to Pilevsky, and Operating Partnership hereby specifically disclaims any representation, oral or written, past, present or future, other than those specifically set forth in this Agreement. Without limiting the generality of the foregoing, Pilevsky has not relied on any representations or warranties, and neither Operating Partnership nor any of its Affiliates or Representatives has or is willing to make any representations or warranties, express or implied, other than as may be expressly set forth herein, as to: (a) the status of title to the Property or the Pilevsky Property Interest; (b) the current or future real estate tax liability, assessment or valuation of the Property or Pilevsky Property Interest; (c) the potential qualification of the Property or Pilevsky Property Interest for any and all benefits conferred by any Laws whether for subsidies, special real estate tax treatment, insurance, mortgages or any other benefits, whether similar or dissimilar to those enumerated; (d) the compliance of the Property or the Pilevsky Property Interest in its current or any future state with applicable Laws or any violations thereof, including, without limitation, those relating to access for the handicapped, environmental or zoning matters, and the ability to obtain a change in the zoning or a variance in respect to the Property's or Pilevsky Property Interest's non-compliance, if any, with zoning Laws; (e) the nature and extent of any right-of-way, lease, possession, lien, encumbrance, license, reservation, condition or otherwise; (f) the availability of any financing for the purchase, alteration, rehabilitation or operation of the Property or Pilevsky Property Interest from any source, including, without limitation, any government authority or any lender; (g) the current or future use of the Property or the Pilevsky Property Interest; (h) the present and future condition and operating state of any personal property and the present or future structural and physical condition of the buildings or other improvements located on the Property or the Pilevsky Property Interest, their suitability for rehabilitation or renovation, or the need for expenditures for capital improvements, repairs or replacements thereto; (i) the viability, financial condition or 14 continued occupancy of any tenant; (j) the status of the leasing market in which any Property or Pilevsky Property Interest is located; or (k) the actual or projected income or operating expenses of the Property or Pilevsky Property Interest. 10.03 Pilevsky or anyone claiming by, through or under Pilevsky, hereby fully and irrevocably releases Operating Partnership, its Affiliates and Representatives, from any and all claims that it may now have or hereafter acquire against Operating Partnership, its Affiliates or Representatives for any cost, loss, liability, damage, expense, action or cause of action, whether foreseen or unforeseen, arising from or related to any construction defects, errors or omissions on or in the Property or Pilevsky Property Interest, the presence of environmentally hazardous, toxic or dangerous substances, or any other conditions (whether patent, latent or otherwise) affecting the Property or Pilevsky Property Interest. Pilevsky further acknowledges and agrees that this release shall be given full force and effect according to each of its expressed terms and provisions, including, but not limited to, those relating to unknown and suspected claims, damages and causes of action. 10.04 This Section 10 shall survive the Closing or sooner termination of this Agreement. [The remainder of this page is intentionally left blank.] 15 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered all on the day and year first above written. PHILIPS INTERNATIONAL REALTY CORP, a Maryland corporation By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President OPERATING PARTNERSHIP: PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership By: Philips International Realty Corp., a Maryland corporation, its general partner By: /s/ Louis J. Petra --------------------------- Name: Louis J. Petra Title: President /s/ Fred Pilevsky ------------------------------- FRED PILEVSKY SCHEDULE A LEGAL DESCRIPTION OF THE PROPERTY [See attached] SCHEDULE B INTENTIONALLY DELETED SCHEDULE C ASSIGNMENT OF MEMBERSHIP INTEREST IN F. PILEVSKY LLC THIS ASSIGNMENT (this "Assignment") is made as of this ___ day of ___________, 2000, by and between PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership, having an office at 417 Fifth Avenue, Third Floor, New York, New York 10016 ("Assignor") and FRED PILEVSKY, an individual having a residence at 749 Wilson Court, North Woodmere, New York 11581 ("Assignee"). W I T N E S S E T H: WHEREAS, Assignor owns all of the interests in F. Pilevsky LLC, a [ ] limited liability company (the "LLC"); WHEREAS, LLC owns undivided interests in two of the parcels referred to as Components 1 and 2 comprising that certain real property located in Dade County, Florida as more particularly described on Schedule 1 annexed hereto (the "Property"); WHEREAS, this Assignment is being made pursuant to that certain Redemption Agreement dated as of April __, 2000 (the "Redemption Agreement") by and between Assignor and Assignee, whereby in exchange for all of the OP Units (as defined therein), Assignor shall distribute to Assignee all of the interests (the "Assigned Interest") in Company having an equity value and being encumbered by such debt as set forth in the Redemption Agreement. NOW, THEREFORE, for Ten ($10) Dollars and other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. All of the recitals set forth above are incorporated herein as if fully set forth below. 2. Assignor represents and warrants to Assignee that: (a) Assignor is the record owner of the Assigned Interest, and the Assigned Interest is free and clear of any lien, claim or encumbrance; (b) Assignor has full right, power and authority to perform the terms of this Assignment; and (c) Assignor has not heretofore sold, assigned, transferred, encumbered, pledged or hypothecated all or any part of the Assigned Interest. 3. Assignor hereby sells, grants, assigns, transfers and conveys to Assignee all of its legal and beneficial right, title and interest in and to the Assigned Interest which shall include, without limitation, all right, title and interest, if any, of Assignor in and to the assets of Company and Assignor's right to receive any past, present or future profits, gains, losses and distributions of any nature from Company. 4. Assignee hereby accepts the Assignment of the Assigned Interest and agrees to assume, fulfill, perform and discharge all the obligations and liabilities of Assignor with respect to the Assigned Interest, accruing or obligated to be performed from and after the date hereof. 5. The Assigned Interest shall have an equity value and being encumbered by such debt as set forth in the Redemption Agreement. 6. This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 7. This Assignment is the final expression of, and contains the entire agreement between, the parties with respect to the subject matter hereof, and supersedes all prior understandings with respect thereto. 8. This Assignment may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument, signed by the party to be charged or by its agent duly authorized in writing, or as otherwise expressly permitted herein. 9. This Assignment shall be interpreted and enforced in accordance with the laws of the State of New York without reference to principles of conflicts of laws. 10. This Assignment may be executed in one or more counterparts, each of which shall be deemed to be an original Assignment, but all of which, taken together, shall constitute but one and the same Assignment. [The remainder of this page is intentionally left blank.] 2 IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of the date first written above. WITNESS: ASSIGNOR: PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership By: Philips International Realty Corp., a Maryland corporation, its general partner _______________________________ By:___________________________ Print Name:____________________ Name: Title: WITNESS: ASSIGNEE: _______________________________ ______________________________ Print Name:____________________ FRED PILEVSKY SCHEDULE 1 LEGAL DESCRIPTION OF THE PROPERTY [See attached] SCHEDULE D GENERAL RELEASE FROM OPERATING PARTNERSHIP RELEASE TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership, and PHILIPS INTERNATIONAL REALTY CORP., a Maryland corporation, having an office at 417 Fifth Avenue, Third Floor, New York, New York 10016, on behalf of themselves and each of their respective direct or indirect subsidiaries, employees, officers, directors or other affiliates, successors, predecessors and permitted assigns collectively as RELEASOR, for good and valuable consideration, receipt of which is hereby acknowledged, release and discharge FRED PILEVSKY, an individual having a residence at 749 Wilson Court, North Woodmere, New York 11581, and his direct or indirect subsidiaries, affiliates or partners, successors, predecessors and permitted assigns collectively, as RELEASEE from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, admiralty or equity, which against RELEASEE, RELEASOR, ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this Release and relating to, arising under or in connection with that certain Redemption Agreement dated as of April __, 2000 by and among RELEASOR and RELEASEE. This RELEASE may not be changed orally. [The remainder of this page is intentionally left blank.] In Witness Whereof, RELEASOR has hereunto set RELEASOR's hand and seal on this ___ day of April, 2000. WITNESS: RELEASOR: PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership By: Philips International Realty Corp., a Maryland corporation, its general partner _______________________________ By:___________________________ Print Name:____________________ Name: Title: PHILIPS INTERNATIONAL REALTY CORP., a Maryland corporation _______________________________ By:___________________________ Print Name:____________________ Name: Title: WITNESS: RELEASEE: _______________________________ ______________________________ Print Name:____________________ FRED PILEVSKY SCHEDULE E GENERAL RELEASE FROM PILEVSKY RELEASE TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT FRED PILEVSKY, an individual having a residence 749 Wilson Court, North Woodmere, New York 11581, and his direct or indirect subsidiaries, affiliates or partners, successors, predecessors and permitted assigns collectively, as RELEASOR for good and valuable consideration, receipt of which is hereby acknowledged, release and discharge PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership, and PHILIPS INTERNATIONAL REALTY CORP., a Maryland corporation, having an office at 417 Fifth Avenue, Third Floor, New York, New York 10016, on behalf of themselves and each of their respective direct or indirect subsidiaries, employees, officers, directors or other affiliates, successors, predecessors and permitted assigns collectively as RELEASEE from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, admiralty or equity, which against RELEASEE, RELEASOR, ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this Release and relating to, arising under or in connection with that certain Redemption Agreement dated as of April __, 2000 by and among RELEASOR and RELEASEE. This RELEASE may not be changed orally. [The remainder of this page is intentionally left blank.] In Witness Whereof, RELEASOR has hereunto set RELEASOR's hand and seal on this ___ day of April, 2000. WITNESS: RELEASOR: _______________________________ ______________________________ Print Name:____________________ FRED PILEVSKY WITNESS: RELEASEE: PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership By: Philips International Realty Corp., a Maryland corporation, its general partner _______________________________ By:___________________________ Print Name:____________________ Name: Title: PHILIPS INTERNATIONAL REALTY CORP., a Maryland corporation _______________________________ By:___________________________ Print Name:____________________ Name: Title:
