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EXHIBIT 10.1
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INTEREST PURCHASE AGREEMENT
by and between
APOLLO REAL ESTATE INVESTMENT FUND III, L.P.
and
WRD HOLDING CORPORATION
Dated as of December 29, 2000
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INTEREST PURCHASE AGREEMENT
THIS INTEREST PURCHASE AGREEMENT (the "AGREEMENT") is made and
entered into as of December 29, 2000, by and between WRD Holding Corporation, a
Delaware corporation ("BUYER"), and Apollo Real Estate Investment Fund III,
L.P., a Delaware limited partnership ("SELLER").
RECITALS:
WHEREAS, Seller holds all of Class A interests in Western
Realty Development LLC, a Delaware limited liability company (the "COMPANY");
and
WHEREAS, Seller desires to sell to Buyer 29/30ths of the
Seller's Class A interests in the Company (the "INTEREST"), and Buyer desires to
purchase from Seller the Interest, pursuant to the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements hereinafter contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
TERMS AND CONDITIONS:
1. DEFINED TERMS.
(a) "AGREEMENT" shall have the meaning set forth in the preamble.
(b) "AMENDMENT NO. 6" shall mean Amendment No. 6, dated the date
hereof, to the Amended and Restated Western Realty Development LLC Limited
Liability Company Agreement (Second Restatement) dated February 20, 1998,
substantially in the form of Exhibit B attached hereto.
(c) "BUYER" shall have the meaning set forth in the preamble.
(d) "CAP" shall have the meaning set forth in Section 9(a).
(e) "CLOSING" shall have the meaning set forth in Section 2.
(f) "CLOSING DATE" shall have the meaning set forth in Section 2.
(g) "CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(h) "COMPANY" shall have the meaning set forth in the recitals.
(i) "DAMAGES" means all losses, damages, liabilities, costs and
expenses (including reasonable attorneys' fees and expenses) incurred in
investigating, preparing or defending any claims covered by Section 9 hereof,
provided, that Damages shall not include any consequential losses, damages,
liabilities or expenses.
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(j) "ENCUMBRANCE" shall have the meaning set forth in Section
5(e).
(k) "INDEMNIFIED PARTY" and "INDEMNIFYING PARTY" shall have the
meanings set forth in Section 9(b).
(l) "INTEREST" shall have the meaning set forth in the recitals.
(m) "NOTE" shall have the meaning set forth in Section 2.
(n) "PURCHASE PRICE" shall have the meaning set forth in Section
2.
(o) "SELLER" shall have the meaning set forth in the preamble.
2. SALE AND PURCHASE OF INTEREST; PURCHASE PRICE.
At the closing of the transactions contemplated hereby (the "CLOSING";
the date of the Closing, the "CLOSING DATE"), Buyer hereby agrees to purchase
from Seller, and Seller hereby agrees to sell to Buyer, the Interest. The
aggregate purchase price (the "PURCHASE PRICE") for the Interest shall be
$4,000,000. At the Closing, Buyer shall deliver to Seller a promissory note
substantially in the form of Exhibit A attached hereto (the "NOTE") in the
principal amount of $4,000,000 in full payment of the Purchase Price.
3. SELLER'S CLOSING DELIVERIES.
At the Closing, Seller shall deliver or cause to be delivered to Buyer
the following items:
(a) Amendment No. 6 executed by Seller;
(b) An executed FIRPTA affidavit from Seller; and
(c) Such other executed documents and instruments as are required
by this Agreement from Seller to effectuate the sale of the Interest.
4. BUYER'S CLOSING DELIVERIES.
At the Closing, Buyer shall deliver or cause to be delivered to Seller
the following items:
(a) The Note, executed by Buyer in favor of Seller;
(b) Amendment No. 6 executed by Buyer; and
(c) The Pledge Agreement securing payments under the Note
substantially in the form of Exhibit C attached hereto.
5. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Buyer as follows:
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(a) Seller is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
(b) Seller has full right, authority, power and capacity (i) to
execute and deliver this Agreement and each other agreement,
document and instrument to be executed and delivered by Seller
pursuant to this Agreement, (ii) to perform the transactions
contemplated hereby, and (iii) to transfer, assign, convey and
deliver the Interest to Buyer in accordance with this
Agreement.
(c) All applicable partnership or other action necessary for
Seller to execute and deliver this Agreement and each other
agreement, document and instrument executed by Seller pursuant
to this Agreement, and to perform the transactions
contemplated hereby, has been taken prior to the date hereof.
(d) This Agreement and each other agreement, document and
instrument executed and delivered by Seller pursuant to this
Agreement constitutes the legal, valid and binding obligation
of Seller, each enforceable in accordance with its respective
terms.
(e) Seller owns the Interest free and clear of any claim, lien or
encumbrance (each, an "ENCUMBRANCE"), and has full power and
authority to convey free and clear of any Encumbrance the
Interest and, upon execution by Seller and Buyer of Amendment
No. 6 and delivery of the Note by Buyer as herein provided,
Buyer will acquire good and valid title to the Interest, free
and clear of any Encumbrance.
(f) There are no agreements, instruments or understandings with
respect to the Interest other than this Agreement and such
other agreements, documents and instruments as are required
hereby.
(g) The execution, delivery and performance of this Agreement and
each other agreement, document and instrument to be executed
and delivered by Seller in connection with the transactions
contemplated hereby (i) do not and will not violate Seller's
limited partnership agreement, (ii) do not and will not
violate any foreign, federal, state, local or other laws
applicable to Seller or require Seller to obtain any approval,
consent or waiver of, or make any filing with, any person or
authority (governmental or otherwise) that has not been
obtained or made and which does not remain in effect, and
(iii) do not and will not result in a breach or a violation
of, constitute a default under, accelerate any obligation
under or give rise to a right of termination of, any
indenture, deed of trust, mortgage, loan or credit agreement
or any other agreement, contract, instrument, lease, permit,
authorization, order, writ, judgment, injunction, decree,
determination or arbitration award to which Seller is a party
or by which the Interest is affected.
(h) Seller has made no agreement with, and has no obligation
(absolute or contingent) to, any other person or entity to
sell, transfer, dispose of or in any way encumber
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the Interest or restrict in any way Seller's ability to sell
the Interest to Buyer or to enter into any agreement with
respect to the Interest.
(i) Seller has not entered into any agreement, arrangement or
understanding with any person or entity which will result in
the obligation of Buyer to pay any finder's fee, brokerage
commission or similar payment in connection with the
transactions contemplated hereby.
(j) Seller is not a foreign entity, foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms
are defined in the Code and income tax regulations).
(k) There is no litigation, proceeding, suit, action, controversy,
or claim existing, pending, or, to the best of Seller's
knowledge, threatened, against Seller which might affect the
transfer of the Interest to Buyer, and there is no basis known
to Seller for any such litigation, proceeding, suit, action,
controversy, or claim. There are no judgments or liens
existing, whether or not filed, against Seller which would
affect the Interest.
Seller acknowledges and agrees that Buyer has made no representations
or warranties (whether oral or in writing) to Seller in connection with the
transactions contemplated hereby except as otherwise expressly set forth in this
Agreement or any other documents dated the date hereof.
6. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller as follows:
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) Buyer has full right, authority, power and capacity (i) to
execute and deliver this Agreement and each other agreement,
document and instrument to be executed and delivered by it
pursuant to this Agreement and (ii) to perform the
transactions contemplated hereby.
(c) This Agreement and each other agreement, document and
instrument executed and delivered by Buyer pursuant to this
Agreement constitutes the legal, valid and binding obligation
of Buyer, each enforceable in accordance with its respective
terms.
(d) All applicable corporate or other action necessary for Buyer
to execute and deliver this Agreement and each other
agreement, document and instrument executed by Buyer pursuant
to this Agreement, and to perform the transactions
contemplated hereby, has been taken prior to the date hereof.
(e) The execution, delivery and performance of this Agreement and
each other agreement, document and instrument to be executed
and delivered by Buyer in
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connection with the transactions contemplated hereby (i) do
not and will not violate the certificate of incorporation or
the by-laws of Buyer, and (ii) do not and will not result in a
breach or a violation of, constitute a default under,
accelerate any obligation under or give rise to a right of
termination of, any indenture, deed of trust, mortgage, loan
or credit agreement, any other agreement, contract,
instrument, lease, permit or authorization, or any order,
writ, judgment, injunction, decree, determination or
arbitration award to which Buyer is a party.
(f) Buyer has not entered into any agreement, arrangement or
understanding with any person or entity which will result in
the obligation of Seller to pay any finder's fee, brokerage
commission or similar payment in connection with the
transactions contemplated hereby.
Buyer acknowledges and agrees that Seller has made no representations
or warranties (whether oral or in writing) to Buyer in connection with the
transactions contemplated hereby except as otherwise expressly set forth in this
Agreement or any other documents dated the date hereof.
7. LIMITATIONS AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations, warranties, covenants, and agreements herein
contained on the part of each of the parties hereto shall be deemed and
construed to be continuing representations, warranties, covenants, and
agreements of each such party, that shall survive the Closing. Seller agrees to
indemnify and hold harmless Buyer, and Buyer agrees to indemnify and hold
harmless Seller, against and with respect to all Damages in accordance with
Section 9 hereof.
8. COVENANT OF FURTHER ASSURANCES.
From time to time, Seller will execute and deliver such further
instruments of conveyance and transfer reasonably requested and take such other
action as Buyer reasonably may require to more effectively convey and transfer
to Buyer the Interest and otherwise fulfill its agreements hereunder.
9. INDEMNIFICATION.
(a) Cap. In no event shall Seller be liable to Buyer, and in no
event shall Buyer be liable to Seller, for any breach of the representations,
warranties, covenants and agreements included or provided for herein or in any
schedule or certificate or other document delivered pursuant to this Agreement,
in an amount greater than the Purchase Price or, if larger, the redemption price
of the Note at maturity (the "CAP").
(b) Indemnification Generally. Seller, on the one hand, or Buyer,
on the other hand (the "INDEMNIFYING PARTY"), shall indemnify, respectively,
Buyer, on the one hand, or Seller, on the other hand, as the case may be (the
"INDEMNIFIED PARTY"), against and in respect of Damages sustained or incurred by
such Indemnified Party or any of their respective parents, subsidiaries,
officers, directors, members, partners, shareholders, agents and representatives
arising out of any breaches of the Indemnifying Party's representations,
warranties, covenants and agreements set
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forth in this Agreement. Any payments pursuant to this Section 9(b) shall be
treated as an adjustment to the Purchase Price for tax purposes.
(c) Other Indemnification Provisions. Any indemnification
provisions set forth in this Agreement may be supplemented or superseded by
documents executed by both parties hereto on or after the date hereof.
10. EXPENSES.
Except as otherwise specifically provided herein, each party shall pay
its own expenses in connection with this Agreement and the consummation of the
transactions contemplated herein.
11. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the benefit
of the respective heirs, personal representatives, fiduciaries
and successors of Seller and Buyer.
(b) This Agreement may not be assigned by either party without the
prior written consent of the other party.
(c) All notices and other communications hereunder shall be
sufficiently given for all purposes hereunder if in writing
and delivered personally, sent by documented overnight
delivery service, or, to the extent receipt is confirmed,
telecopy, telefax or other electronic transmission service to
the appropriate address or number as set forth below:
If to Seller to:
Apollo Real Estate Investment Fund III, L.P.
2 Manhattanville Road
Purchase, New York 10577
Attention: Ronald Solotruk
Fax: (914) 694-6503
with a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
Attention: Louis Vitali, Esq.
Fax: (212) 872-1002
or at such other address and to the attention of such other
person as Seller may designate by written notice to Buyer.
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If to Buyer to:
WRD Holding Corporation
c/o New Valley Corporation
100 S.E. Second Street
32nd Floor
Miami, Florida 33131
Attention: Richard J. Lampen
Fax: (305) 579-8009
with a copy to:
Coudert Brothers
1114 Avenue of the Americas
New York, New York, 10036
Attention: Clyde E. Rankin, III, Esq.
Fax: (212) 626-4120
or to such other address and to the attention of such other
person as Buyer may designate by written notice to Seller.
(d) This Agreement shall be construed and enforced in accordance
with the laws of the State of New York without giving effect
to such state's conflict of law principles. Any dispute,
controversy or claim arising out of or relating to this
Agreement shall be finally settled by binding arbitration to
be conducted in New York, New York in accordance with the
rules then in force of the American Arbitration Association,
including the rules governing the appointment of arbitrators.
The decision in such arbitration proceeding shall be final and
non-appealable and shall be binding on the parties thereto and
enforceable in courts of competent jurisdiction without a
further review on the merits.
(e) A waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of
any other subsequent breach thereof or of any other provision.
(f) This Agreement and Exhibits annexed hereto represent the
entire agreement between the parties hereto with respect to
the transactions contemplated hereby and may be modified only
by a simultaneous or subsequent written document executed by
the party to be charged therewith.
(g) The headings of the Sections of this Agreement are inserted
for convenience only and do not constitute a part of this
Agreement.
(h) This Agreement may be signed in counterparts, each of which
shall be deemed to be an original and all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first written above.
BUYER:
WRD HOLDING CORPORATION
By: /s/ Richard J. Lampen
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Name: Richard J. Lampen
Title: President
SELLER:
APOLLO REAL ESTATE INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III, L.P.,
its general partner
By: Apollo Real Estate Capital Advisors III, Inc.,
its general partner
By: /s/ Andrew Cohen
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Name: Andrew Cohen
Title: Vice President
