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EXHIBIT 99.4
SECOND SUPPLEMENTAL SETTLEMENT AGREEMENT
This Second Supplemental Settlement Agreement (this "Second
Supplemental Agreement"), dated as of October 15, 1997, is made by and between
RONALD S. HAFT ("RSH") and DART GROUP CORPORATION, a Delaware corporation
("Dart"), for purposes of supplementing and modifying that certain Settlement
Agreement dated as of October 6, 1995 between RSH and Dart the "RSH/Dart
Settlement Agreement"), as supplemented and modified by that certain First
Supplemental Settlement Agreement, dated on or about October 15, 1997 by and
between RSH and Dart. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
RSH/Dart Settlement Agreement.
WITNESSETH:
WHEREAS, Dart and RSH entered into the RSH/Dart Settlement
Agreement to settle certain lawsuits and other disputes between RSH and Dart
and its affiliates.
WHEREAS, on November 6, 1995 Herbert H. Haft ("HHH") filed a
lawsuit captioned Herbert H. Haft v. Dart Group Corporation, et al., Civ. A.
No. 14685 (Del. Ch.), challenging the transactions pursuant to the RSH/Dart
Settlement Agreement (the "HHH Settlement Lawsuit");
WHEREAS, in connection with the HHH Settlement Lawsuit and
other litigation challenging the transactions pursuant to the RSH/Dart
Settlement Agreement, the Delaware Court of Chancery entered an order (the
"Standstill Order") on December 6, 1995 that requires Dart to refrain from
taking or recognizing specified actions and that, in Section 8 of the
Standstill Order, requires Dart to give not less than seven (7) days' notice of
certain "extraordinary transactions" to the other parties to such lawsuits;
WHEREAS, concurrently with the execution and delivery of this
Second Supplemental Agreement, Dart and HHH are entering into a settlement
agreement pursuant to which Dart and HHH agree to settle the HHH Settlement
Lawsuit and certain other lawsuits and other disputes between them on the
terms, and subject to the conditions, set forth therein (the "HHH/Dart
Settlement Agreement");
WHEREAS, RSH desires that Dart enter into and consummate the
transactions contemplated by the HHH/Dart Settlement Agreement in order to
terminate the HHH Settlement Lawsuit and enable him to realize certain
substantial economic benefits of the RSH/Dart Settlement Agreement, which have
been unavailable to him as a result of HHH's claims that will be resolved
pursuant to the HHH/Dart Settlement Agreement;
WHEREAS, RSH wishes to induce Dart to make the $10 million
loan contemplated by this Second Supplemental Agreement; and
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WHEREAS, the consummation of the transactions contemplated by
this Second Supplemental Agreement is a condition precedent to the closing of
the transactions contemplated by the HHH/Dart Settlement Agreement;
NOW, THEREFORE, for and in consideration of the premises and
of the mutual promises and agreements herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 5. SECOND SUPPLEMENTAL SETTLEMENT.
5.1 CERTAIN DEFINITIONS. As used in this Second
Supplemental Agreement, the terms "HHH Closing" and "HHH Closing Date" mean
respectively, the "Closing" and the "Closing Date" as defined in the HHH/Dart
Settlement Agreement.
5.2 SETTLEMENT TRANSACTIONS.
(a) AMENDMENT TO VOTING TRUST AGREEMENT. Simultaneously with the
execution and delivery of this Second Supplemental Agreement, the parties shall
execute and deliver an amendment to the Voting Trust Agreement in the form of
EXHIBIT A hereto (the "Voting Trust Amendment").
(b) AMENDMENT TO BUY/SELL/OFFERING AGREEMENT. At the time of the
HHH Closing, the parties shall execute and deliver an amendment to the
Buy/Sell/Offering Agreement in the form of EXHIBIT B hereto (the "Buy/Sell
Amendment"). The parties agree that the Denial Period (as defined in the
Buy/Sell/Offering Agreement) that has been in existence since January 18, 1997,
shall be deemed to have commenced on January 9, 1997 and to continue until at
least the later of January 1, 1998, or the Closing Date or, if this Second
Supplemental Agreement shall terminate, the date on which such termination
occurs; provided, however, that in no event shall this provision result in an
earlier termination of such Denial Period than would otherwise occur under the
terms of the Buy/Sell/Offering Agreement.
(c) $10 MILLION LOAN. At the time of the HHH Closing, (i) Dart
shall, and RSH shall cause the HHH/RSH Tier II Limited Partnership to, execute
and deliver a Loan Agreement, substantially in the form of EXHIBIT C hereto
(the "Loan Agreement"), (ii) RSH shall execute and deliver the Guaranty (as
defined in the Loan Agreement), (iii) contingent upon the cooperation of HHH,
Gloria G. Haft and other parties to the Loan Documents (as defined in the Loan
Agreement), the closing of the $10 million loan by Dart to the HHH/RSH Tier II
Limited Partnership shall occur in accordance with the terms of the Loan
Agreement, and (iv) RSH shall prepay in full (unless previously prepaid in
full) the $10,000,000 in principal amount of notes issued by him to HHH which
by their terms are required to be prepaid upon the closing of the $10 million
loan by Dart to the HHH/RSH Tier II Limited Partnership; provided, however,
that (i) the consent of the Hermans under the Loan Agreement shall not be
required, (ii) any and all references to recording the Negative Pledges shall
be deleted and the form of the lender consent shall be as executed by JP
Morgan, (iii) the minimum exercise price applicable to the Forbes buy/sell
shall be $4,000,000 and Dart shall cooperate with RSH in structuring any
acquisition of
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all of the partnership interests by Dart from the Hermans and RSH so that RSH
may implement a like-kind exchange under the same terms and restrictions as are
set forth n the First Amendment to the Real Estate Master Agreement with
respect to like-kind exchanges, and (iv) Dart shall waive its right to the
additional interest kicker if the Loan is repaid during the first 5 years.
(d) CONTRIBUTION AGREEMENT. At the time of the HHH Closing, Dart
shall execute and deliver the Contribution Agreement, in the form of EXHIBIT D
hereto (the "Contribution Agreement"), and RSH shall execute and deliver the
Contribution Agreement individually and on behalf of each of the Releasing
Guarantors listed on Schedule 1 thereto and each of the Released Guarantors
listed on Schedule 2 thereto.
(e) EFFECTIVENESS. Neither the obligations of the parties under
this Article 2, the Voting Trust Amendment nor the Buy/Sell Amendment shall
become effective unless and until the HHH/Dart Settlement Agreement shall
become effective.
5.3 HHH/DART SETTLEMENT. Notwithstanding any other provision of
this Second Supplemental Agreement, RSH acknowledges and agrees that (i)
neither Dart nor any of its affiliates has made any express or implied
representation, warranty or covenant as to whether or not the HHH/Dart
Settlement Agreement will become effective or if it becomes effective, whether
the transactions contemplated thereby will be consummated (and Dart hereby
expressly disclaims any such representation, warranty or covenant) and (ii)
neither Dart nor any of its affiliates shall have any liability to RSH in the
event (A) the HHH/Dart Settlement Agreement does not become effective or (B) a
closing under the HHH/Dart Settlement Agreement does not occur and/or the
transactions contemplated thereby are not consummated.
ARTICLE 6. COVENANTS
6.1 COOPERATION. The parties shall cooperate in the
defense of any litigation challenging the validity of this Second Supplemental
Agreement, the Voting Trust Amendment, the Loan Agreement, the Buy/Sell
Amendment, the Contribution Agreement, the HHH/Dart Settlement Agreement or the
RSH/Dart Settlement Agreement and the transactions contemplated hereby and
thereby. RSH hereby (a) consents to the HHH/Dart Settlement Agreement and the
transactions contemplated thereby, (b) agrees to not file any lawsuit or
initiate any proceeding challenging the HHH/Dart Settlement Agreement or any of
the transactions contemplated thereby, and (c) waives and releases any claims
he may have against Dart, its affiliates, directors and officers or against HHH
arising out of or in connection with the HHH/Dart Settlement Agreement and the
transactions contemplated thereby.
6.2 FURTHER ASSURANCES. RSH and Dart each shall promptly
execute and deliver, and RSH shall cause to be promptly executed and delivered,
such additional documents, assignments, certificates and instruments as the
other party to this Second Supplemental Agreement may reasonably request in
order to effectuate more effectively the transactions contemplated by this
Second Supplemental Agreement, the Voting Trust Amendment and the Buy/Sell
Amendment.
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6.3 SPECIFIC PERFORMANCE. Dart and RSH each acknowledge
and agree that in the event of any breach of this Second Supplemental
Agreement, the Voting Trust Amendment or the Buy/Sell Amendment or the
Contribution Agreement, the non-breaching party would be irreparably harmed and
could not be made whole by monetary damages. It is accordingly agreed that
Dart and RSH, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance (including
temporary restraining orders) of each of this Second Supplemental Agreement,
the Voting Trust Amendment, the Buy/Sell Amendment or the Contribution
Agreement in any action instituted in the Delaware Court of Chancery or the
United States District Court for the District of Delaware, or, in the event
neither of said courts would have jurisdiction over such action, in any court
of the United States or any state having subject matter jurisdiction. Dart and
RSH each consent to non-exclusive personal jurisdiction in any such action
brought in the Delaware Court of Chancery or the United States District Court
for the District of Delaware.
ARTICLE 7. MISCELLANEOUS
7.1 RELATIONSHIP TO SETTLEMENT DOCUMENTS. Except as
modified or supplemented by this Second Supplemental Agreement, the RSH/Dart
Settlement Agreement, as amended by the First Supplemental Settlement
Agreement, shall remain in full force and effect, and no other changes shall
have been deemed to have been effected by this Second Supplemental Agreement.
7.2 EXPENSES. Except as provided in the RSH/Dart
Settlement Agreement, the parties shall pay their own respective expenses
incurred in connection with this Second Supplemental Agreement and the
transactions hereunder, including, without limitation, any fees for accountants
and attorneys.
7.3 NOTICES. Any notices or consents required or
permitted by this Second Supplemental Agreement shall be in writing and shall
be deemed given if delivered in person or if sent by certified mail, postage
prepaid, return receipt requested, or by facsimile (answerback required) as
follows, unless any such address is changed by notice hereunder:
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If to Dart:
Dart Group Corporation
3300 75th Avenue
Landover, Maryland 20785
Attn: Chairman of the Executive
Committee
and
Attn: Corporate Secretary
Facsimile: 301-733-2707
with copies to:
Kenneth J. Ayres, Esq.
Jones, Day, Reavis & Pogue
1450 G Street, N.W.
Washington, D.C. 20005
Facsimile: 202-737-2832
If to RSH:
Mr. Ronald S. Haft
58 La Gorce Circle
Miami Beach, Florida 33141
Facsimile: 305-865-4024
with a copy to:
Stuart M. Grant, Esq.
Grant & Eisenhofer, P.A.
1220 Market Street
Suite 500
Wilmington, Delaware 19801
Facsimile: 302-622-7100
7.4 GOVERNING LAW. This Second Supplemental Agreement, and
the documents and instruments delivered pursuant hereto, except as otherwise
provided therein, shall be construed in accordance with and governed by the
laws of the State of Delaware, without regard to conflict of laws principles.
7.5 AMENDMENTS. This Second Supplemental Agreement may be
amended only by a written agreement executed by the parties hereto.
7.6 ENTIRE AGREEMENT. This Second Supplemental Agreement
sets forth the entire understanding of the parties hereto, and supersedes all
prior agreements between them, with respect to the subject matter hereof, all
prior negotiations between the parties with respect to the subject matter
hereof are merged in this Second Supplemental Agreement and the other
Settlement Documents, and there are no promises, agreements, conditions,
undertakings,
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warranties or representations, oral or written, express or implied, between
them other than as herein set forth.
7.7 SEVERABILITY. If any one or more of the provisions
contained in this Second Supplemental Agreement is held to be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
all remaining provisions shall not in any way be affected or impaired thereby.
7.8 BINDING EFFECT. This Second Supplemental Agreement, and
the documents and instruments delivered pursuant hereto, shall inure to the
benefit of, and shall be binding upon, their respective heirs, executors,
administrators, successors (including any representative, executor or
administrator of RSH's estate) and assigns of the parties.
7.9 WAIVER. No waiver of any of the provisions of this
Second Supplemental Agreement or any other agreement referred to herein shall
be valid unless in writing and signed by the party against whom it is sought to
be enforced. The waiver by any party hereto of any matter provided for herein
shall not be deemed to be a waiver of any other matter provided for herein.
7.10 HEADINGS. The headings in this Second Supplemental
Agreement are solely for convenience of reference and shall not be given any
effect in the construction or interpretation of this Second Supplemental
Agreement. Unless otherwise specified, references in this Second Supplemental
Agreement to Sections, Exhibits or Schedules are references to Sections of, or
Exhibits or Schedules to, this Second Supplemental Agreement.
7.11 COUNTERPARTS. This Second Supplemental Agreement may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, RSH and Dart have executed this Second
Supplemental Agreement, or have caused this Second Supplemental Agreement to be
executed on their behalf, as of the date first above written.
/s/ Ronald S. Haft
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RONALD S. HAFT
DART GROUP CORPORATION
By: /s/Richard B. Stone
---------------------------------
Name: Richard B. Stone
Title: Chief Executive Officer
/s/ Elliot Arditti
---------------------------------
Sr. Vice President and
Corporate Secretary
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EXHIBIT A
REFER TO EXHIBIT 99.5 OF THIS CURRENT REPORT ON FORM 8-K FOR THE EXECUTED
DRAFT OF THE AMENDMENT TO VOTING TRUST AGREEMENT.
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EXHIBIT B
AMENDMENT TO BUY/SELL/OFFERING AGREEMENT
This AMENDMENT TO BUY/SELL/OFFERING AGREEMENT (this "Buy/Sell
Amendment"), dated as of this ___ day of ______, 199_, by and between Dart
Group Corporation ("Dart") and Ronald S. Haft ("RSH").
WITNESSETH:
WHEREAS, Dart and RSH entered into that certain Settlement Agreement,
dated as of October 6, 1995 (the "RSH/Dart Settlement Agreement"), for the
purpose of, inter alia, settling certain lawsuits and other disputes between
them;
WHEREAS, in connection with the RSH/Dart Settlement Agreement, Dart and
RSH entered into that certain Buy/Sell/Offering Agreement, dated as of October
6, 1995 (the "Buy/Sell/Offering Agreement");
WHEREAS, on October 18, 1995, Robert M. Haft, Gloria G. Haft and Linda
G. Haft (collectively, "RGL") filed a lawsuit captioned Gloria Haft, et al. v.
Larry Schafran, et al., Civ. A. No. 14620 (Del. Ch.), challenging the legal
effect of certain of the transactions pursuant to the RSH/Dart Settlement
Agreement (the "Section 225 Lawsuit");
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WHEREAS, on November 6, 1995, Herbert H. Haft ("HHH") filed a lawsuit
captioned Herbert H. Haft v. Dart Group Corporation, et al., Civ. A. No. 14685
(Del. Ch.), challenging the transactions pursuant to the RSH/Dart Settlement
Agreement (the "HHH Settlement Lawsuit");
WHEREAS, Dart and certain of its subsidiaries have entered into, and
consummated the closing under, a Settlement Agreement, dated August 18, 1997,
with RGL pursuant to which, inter alia, Dart has purchased a total of 104,976
shares of Dart Class B Common Stock for a total price of approximately $14.7
million and consummated certain other settlement transactions with RGL
involving additional payments by Dart and/or its subsidiaries totalling more
than $35 million, and RGL have dismissed the Section 225 Lawsuit;
WHEREAS, Dart and HHH have entered into a Settlement Agreement, dated
as of October 9, 1997 (the "HHH/Dart Settlement Agreement"), pursuant to which,
inter alia, HHH has agreed to relinquish his claim to power to vote shares of
Dart Class B Common Stock and to terminate the HHH Settlement Lawsuit, and Dart
has agreed to consummate certain other settlement transactions with HHH
involving payments by Dart and/or its subsidiaries totalling more than $27
million and a loan by Dart of $10 million.
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WHEREAS, in connection with the execution and delivery of the HHH/Dart
Settlement Agreement, Dart and RSH entered into that certain Second
Supplemental Settlement Agreement, dated October 9, 1997, which provides for
the execution and delivery of this Buy/Sell Amendment;
WHEREAS, the execution and delivery of this Buy/Sell Amendment is a
condition precedent to the closing of the transactions contemplated by the
HHH/Dart Settlement Agreement;
WHEREAS, Dart and RSH wish to amend the Buy/Sell/Offering Agreement as
set forth herein.
NOW THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Amendment of Buy/Sell/Offering Agreement. [(a)] Section 7(a)
of the Buy/Sell/Offering Agreement shall hereby be amended by deleting the date
"December 31, 1999" and substituting therefor the date "December 31, 1997."
[(b) The first sentence of Section 7(b) of the Buy/Sell/Offering
Agreement shall hereby be amended by deleting the words "within fifteen (15)
days of the date of the Call Exercise Notice" and by adding the following at
the end thereof: "; provided that any Call Exercise Notice specifying a closing
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date in January, 1998, may be given at any time on or after ______, 1997,(1)
and any other Call Exercise Notice shall specify a closing date within fifteen
(15) days of the date of such Call Exercise Notice."](2)
2. Effectiveness. The amendment to the Buy/Sell/Offering
Agreement set forth in Section 1 of this Buy/Sell Amendment shall be effective
immediately upon the execution and delivery of this Buy/Sell Amendment.
3. Counterparts. This Buy/Sell Amendment may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, RSH and Dart have executed this Buy/Sell Amendment,
or have caused this Buy/Sell Amendment to be executed on their behalf, on the
date first above written.
------------------------------------
RONALD S. HAFT
DART GROUP CORPORATION
By:
---------------------------
Name:
Title:
---------------------
- --------------
(1) This will be the date of the Amendment to Buy/Sell/Offering Agreement.
(2) If the Amendment to Buy/Sell/Offering Agreement is entered into after
December 31, 1997, Section 7(b) will not need to be amended.
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EXHIBIT C
LOAN AGREEMENT
This LOAN AGREEMENT (this "Agreement") is entered into as of the ____
day of _______, 1997 by and between DART GROUP CORPORATION, a Delaware
corporation ("Lender") and HHH/RSH TIER II LIMITED PARTNERSHIP, a Maryland
limited partnership ("Borrower").
Recitals
WHEREAS, Borrower desires to borrow funds from Lender to enable
Borrower to purchase from Combined Properties Limited Partnership promissory
notes as hereinafter described; and
WHEREAS, Lender desires to make funds available to Borrower for the
foregoing purpose in an amount not to exceed $10 million in accordance with the
terms and conditions provided herein.
NOW THEREFORE, in consideration of the respective agreements of Lender
and Borrower, the parties hereby agree as follows:
8. CERTAIN DEFINITIONS. In addition to the terms defined elsewhere in
this Agreement, as used herein, the following terms shall have the indicated
definitions unless otherwise specifically defined herein:
(a) "Affiliate" or "Affiliated" shall mean a person or entity
who is in control of, under common control with, or controlled by another
person or entity. However, Lender and its subsidiaries (including Crown Books
Corporation, Shoppers Food Warehouse Corporation, Total Beverage Corporation
and Trak Auto Corporation) shall not be deemed to be Affiliated with any member
of the Haft family for purposes of this Agreement.
(b) "Agreement and Consent" shall mean that certain Agreement
and Consent dated of even or approximate date herewith
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executed by the Haft Parties for the benefit of Lender, as it may hereafter be
amended.
(c) "Applicable Interest Rate" shall mean eight percent
(8%) per annum, compounded annually.
(d) "Appraised Value" of a Property shall mean the
appraised value of the applicable Property(ies) as if sold to a bona-fide third
party in an arms-length transaction as encumbered by any then-existing
financing that is to be assumed by a buyer or repaid, and without consideration
of any costs, expenses or taxes payable upon a sale, which appraised value
shall be determined by an MAI appraiser mutually acceptable to Lender and
Borrower with at least ten years experience in the field with no personal or
financial interest in Borrower, Lender or any Property. The appraiser shall be
instructed to appraise the Property on an "as is" fair market value basis in
conformance with the Code of Professional Ethics and Standards as set forth by
the Appraisal Institute. Borrower shall pay the cost of such appraisal.
(e) "Arms-Length Sale" shall mean the sale of a Property
or Properties to a person or entity not Affiliated with Borrower or Borrower's
partners (or any of their respective Affiliates) at the time of such sale in an
arms-length negotiated transaction.
(f) "Business Day" shall mean any day of the year on which
commercial banks are not required or authorized to close in Maryland.
(g) "Environmental Reports" shall mean the following
studies with respect to the Properties: (i) with respect to Sully Plaza, the
Phase I Environmental Site Assessment for Sully Plaza, Lee Jackson Memorial
Highway and Centerville Road, Chantilly, Virginia, MAC Project No. 96177,
prepared by MAC Corporation of Virginia, dated October 15, 1996; (ii) with
respect to Maryland City, the Phase I Environmental Site Assessment for
Maryland City Plaza, Fort Meade Road and Red Clay Road, Laurel, Maryland, MAC
Project No. 96179, prepared by MAC Corporation of Virginia, dated October 15,
1996; and (iii) with respect to Rolling Valley, the Phase I Environmental Site
Assessment for Rolling Valley Mall, Old Keene Mill Road and Shiplett Boulevard,
Burke, Virginia, MAC Project No. 96178, prepared by MAC Corporation of
Virginia, dated October 15, 1996. There is no Environmental Report for 4600
Forbes Boulevard.
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(h) "Equivalent Receipts" shall mean
non-cash receipts, and such non-cash receipts shall be valued in an amount
equal to the net proceeds received upon disposition, or if the same are not
disposed of by the end of the year in which such non-cash receipts are
received, then at fair market value as of such date.
(i) "Existing Mortgages" shall mean: (i) with respect to
Rolling Valley Mall, that certain Deed of Trust and Security Agreement and
Assignment of Leases and Rents dated May 20, 1994 executed by Combined
Properties Limited Partnership, a Maryland limited partnership, for the benefit
of Rolling City securing a loan in the original principal amount of
$18,500,000.00; (ii) with respect to Maryland City Plaza, that certain Deed of
Trust and Security Agreement and Assignment of Leases and Rents dated May 20,
1994 executed by Combined Properties Limited Partnership, a Maryland limited
partnership, for the benefit of Rolling City securing a loan in the original
principal amount of $12,250,000.00; (iii) with respect to Sully Plaza, that
certain Deed of Trust, Assignment of Rents and Security Agreement dated
December 3, 1987 executed by Haft/Equities-Sully Plaza Limited Partnership, a
Virginia limited partnership, for the benefit of Metropolitan securing a loan
in the original principal amount of $11,000,000.00; and (iv) with respect to
4600 Forbes Boulevard, that certain Purchase Money Deed of Trust and Security
Agreement dated December 10, 1990 executed by 4600 Forbes Boulevard Joint
Venture, a District of Columbia general partnership, for the benefit of
Combined Properties Incorporated securing a loan in the original principal
amount of $8,100,000.00, as subsequently assigned to American National
Insurance Company and amended in that certain Modification and Restatement of
Deed of Trust and Security Agreement dated as of January 17, 1991.
(j) "4600 Forbes Boulevard" shall mean that certain land
and improvements, together with all appurtenances thereto, located at 4600
Forbes Boulevard, Lanham, Maryland, such land being more particularly described
on Exhibit G attached hereto, owned by 4600 Forbes Boulevard Joint Venture, a
District of Columbia general partnership ("4600 Forbes Boulevard Joint
Venture").
(k) "Gross Revenues" shall mean all money, gross income,
consideration, Equivalent Receipts and other things of value received by, or
paid to or for the account or benefit of Borrower or its agents (or 99% of
those received by HESPLP and/or
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MC/RVM Associates Limited Partnership, whichever is greater) from any and all
sources with respect to the ownership, leasing, occupancy and operation of the
Properties or any portion thereof or any interest therein, or any source other
than a Property, calculated on the cash basis method of accounting applied on a
consistent basis, including, without limiting the generality of the foregoing,
the following: rentals (including base rentals, charge backs, percentage rent,
additional rent pass-throughs, escalations, fees and charges for services) and
all other payments made by lessees or occupants of the Properties (exclusive of
security and other deposits made by lessees of space in the Properties
deposited and maintained in separate escrow accounts until, and to the extent,
actually forfeited); late charges and interest paid on rentals; payments for
services; rentals, cash and other receipts from licenses, concessions, parking,
vending machines and similar items; any payments by tenants of or on account of
Qualified Expenses; other fees, charges or payments not deemed to be rental
under a lease but paid for, or in connection with, the use of space in the
Properties or any portion thereof; payments made as consideration, in whole or
in part, for the cancellation, modification, extension or renewal of leases;
actual cash proceeds received by Borrower and not applied to the repayment of
any debt secured by a mortgage on the Properties or any part thereof from any
insurance or condemnation award with respect to any damage or taking to all or
any portion of the Properties (the amount of such proceeds applied toward
restoration, however, shall be excluded from Gross Revenues); proceeds of
rental value insurance and business interruption insurance; amounts paid by
lessees of the Properties pursuant to escalation or other adjustment or
pass-through provisions in their respective leases or on account of maintenance
or service charges, taxes, assessments, utilities, air conditioning and
heating, and other administrative, management, operating, leasing and
maintenance expenses for the Properties; actual cash refunds of taxes received
by Borrower; actual cash dividends on insurance policies received by Borrower;
administrative fees paid to Borrower by or on behalf of lessees; and all other
receipts of any kind whether similar or dissimilar to those enumerated above
arising from or in connection with the ownership, leasing, occupancy or
operation of the Properties or any portion thereof, which may directly or
indirectly inure to the benefit of Borrower. As used herein, the terms "lease"
and "lessee" shall be interpreted to include within Gross Revenues payments
from or in respect of all use or occupancy agreements concerning the Properties
or any portions thereof.
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(l) "Guarantors" shall mean RSH, RSH GP LLC and the HHH
Trust.
(m) "Guaranty" shall mean that certain Guaranty dated of
even or approximate date herewith executed by RSH, RSH GP LLC and the HHH
Trust, jointly and severally, for the benefit of Lender in connection with the
Loan, as it may hereafter be amended.
(n) "Haft-family Loan" shall mean the outstanding
principal amount, not to exceed Ten Million Dollars ($10,000,000), plus any
accrued and unpaid interest earned thereon to the date hereof, evidenced by:
that certain Subordinated Promissory Note, dated _____________, 1997, made by
RSH to the order of Borrower in the original principal amount of $6,000,000, as
endorsed to Combined Properties Limited Partnership, as further endorsed to
Herbert H. Haft, held on a subordinated basis to the Loan; and that certain
Series 1 Promissory Note, dated ____________, 1997, made by RSH to the order of
Borrower in the original principal amount of $4,000,000, as endorsed to
Combined Properties Limited Partnership, as further endorsed to Herbert H.
Haft, as further endorsed to Gloria G. Haft, held on a pari passu basis with
the Loan; such promissory notes and other loan documents relating thereto not
to contain terms and conditions more favorable to the payee thereunder than the
terms and conditions of the Loan Documents.
(o) "Haft Parties" shall mean HESPLP, MC/RVM Associates
Limited Partnership, Borrower, RSH GP LLC, RSH, the HHH Trust, Combined
Properties/Forbes Boulevard Limited Partnership, and CP/Forbes Boulevard, Inc.,
a District of Columbia corporation.
(p) "HCP Notes" shall mean those five (5) Promissory
Notes, and all amendments, allonges, replacements, substitutions and
refinancings thereof, payable to Capital Resources Limited Partnership, dated
August 15, 1994, by the following makers in the specified amounts:
(i) Charles County Associates Limited Partnership,
original principal amount of $1,381,629.00.
(ii) CP Acquisition Limited Partnership, original
principal amount of $3,406,248.00.
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(iii) Combined Properties/Reseda Associates Limited
Partnership, original principal amount of $3,334,142.00.
(iv) Arrow Lease Acquisition Limited Partnership,
original principal amount of $3,430,741.00.
(v) CP Entities Limited Partnership, original
principal amount of $2,627,213.00.
Borrower represents and warrants that: the Promissory Note dated August 15,
1994 made by CP Acquisition II Limited Partnership to Capital Resources Limited
Partnership in the original principal amount of $1,998,268.00; the Promissory
Note dated August 15, 1994 made by Penn-Daw Associates Limited Partnership to
Capital Resources Limited Partnership in the original principal amount of
$452,945.00; the Promissory Note dated August 15, 1994 made by HESPLP to
Capital Resources Limited Partnership in the original principal amount of
$51,272.00; the Promissory Note dated August 15, 1994 made by 1751 Columbia
Road Limited Partnership to Capital Resources Limited Partnership in the
original principal amount of $298,479.00; the Promissory Note dated August 15,
1994 made by Combined Properties/Silver Hill Limited Partnership to Capital
Resources Limited Partnership in the original principal amount of
$1,200,616.00; and the Promissory Note dated August 15, 1994 made by Combined
Properties/Forbes Boulevard Limited Partnership to Capital Resources Limited
Partnership in the original principal amount of $337,764.00 have all been
repaid, and the proceeds thereof invested in the properties owned by (or used
to pay off debts owed by) the makers thereof, the other makers of the HCP
Notes, and/or the Partnerships.
(q) "HESPLP" shall mean Haft/Equities-Sully Plaza Limited
Partnership, a Virginia limited partnership.
(r) "Hazardous Substance" shall mean and include all
hazardous or toxic substances, wastes or materials, any pollutants or
contaminates (including, without limitation, friable asbestos, PCBs, petroleum
products and by-products, and raw materials which include hazardous
constituents), or any other similar substances, or materials which are included
under or regulated by any local, state or federal law, rule or regulation
pertaining to environmental regulation, contamination, clean-up or disclosure,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, The Superfund Amendments and
Reauthorization Act of 1986, The Resource Conversation and Recovery Act, The
Toxic Substances
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Control Act, and the Federal Insecticide, Fungicide and Rodenticide Act, as any
of the foregoing has heretofore been or is hereafter amended.
(s) "HHH Trust" shall mean the Herbert H. Haft Tier II
Irrevocable Trust 1997.
(t) "Loan Documents" shall mean collectively this
Agreement, the Note, the Pledge Agreements, the Guaranty, the Agreement and
Consent, the Negative Pledges, Uniform Commercial Code financing statements,
the amendments to the management agreements referred to in Section 13(f) below,
and the direct pay letters of even or approximate date herewith by Combined
Properties Limited Partnership to RSH and to Capital Resources Limited
Partnership regarding the Pledged Notes, as they may hereafter be amended,
supplemented or otherwise modified from time to time, and any documents
hereafter entered into and agreed by the parties to be a Loan Document.
(u) "Maryland City Plaza" shall mean that certain real
property located in Laurel, Maryland more particularly described in Exhibit A
attached hereto and incorporated herein, together with all improvements located
thereon and appurtenances related thereto.
(v) "Maturity Date" shall mean (i) unless the Note shall
be accelerated sooner pursuant to any provision hereof or thereunder or
pursuant to any provision of any of the other Loan Documents, the date which is
ten (10) years after the date of the Note, or (ii) if such acceleration occurs,
the date of such acceleration.
(w) "Metropolitan" shall mean Metropolitan Life Insurance
Company.
(x) "Negative Pledges" shall mean (i) that certain
Restrictive Covenant executed by MC/RVM Associates Limited Partnership for the
benefit of Lender, (ii) that certain Restrictive Covenant executed by HESPLP
for the benefit of Lender, and (iii) that certain Restrictive Covenant executed
by 4600 Forbes Boulevard Joint Venture, a District of Columbia general
partnership, for the benefit of Lender, all of even or approximate date
herewith, as any of them may hereafter be amended.
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(y) "Net Operating Income" means Gross Revenues less the
Qualified Expenses for the period of time involved.
(z) "Net Property Value" shall mean:
(i) in the event of an Arms-Length Sale, the Net
Sales Proceeds from such Sale;
(ii) in the event of a Sale which is not an
Arms-Length Sale, the greater of (A) the Appraised Value of such
Property(ies) less (I) the amount of all reasonable costs (including a
real estate broker's commission, Virginia grantor's tax (with respect
to the Properties located in Virginia), 1/2 of the transfer and
recordation taxes (with respect to the Properties located in Maryland),
recording charges and other reasonable and customary settlement
charges) actually incurred by the applicable Partnership in connection
with such Sale, and (II) all principal and interest owed by the
applicable Partnership to the mortgagee(s) of such Property(ies), or
(B) the Net Sales Proceeds of such Property(ies); or
(iii) solely for purposes of Section 4 of this
Agreement, the Appraised Value of the Properties less (A) the amount of
all reasonable costs (including a real estate broker's commission,
title fees, transfer fees, recording charges and other reasonable and
customary settlement charges) which would be incurred by the
Partnerships if the Properties were sold, and (B) all principal and
interest owed by the Partnerships to the mortgagees of the Properties.
(aa) "Net Sales or Refinancing Proceeds" shall mean the
gross sales price or loan amount for any part or all of a Property(ies) (prior
to adjustment for taxes, rents, expenses or any other matter) (together with
the value of all other property or consideration received by a Partnership in
connection with such Sale or Refinancing), together with all payments or other
consideration paid to a Partnership, their respective general partners or any
Affiliate in connection with such Sale or Refinancing (e.g. payments for
noncompetition agreements or termination of a management agreement) less: (i)
any real estate broker's commission payable by a Partnership to a
non-Affiliated broker pursuant to such transfer (not to exceed reasonable
market rates for purposes of this calculation); (ii) (A) in the case of
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a Refinancing or an Arms-Length Sale, the actual Maryland and/or Virginia
recordation and transfer taxes paid by HESPLP or MC/RVM Associates Limited
Partnership or half of those paid by 4600 Forbes Boulevard Joint Venture and
(B) in a non-Arms-Length Sale, the Virginia grantor's tax (with respect to Sale
of the Properties located in Virginia) and/or 1/2 of the transfer and
recordation taxes (with respect to the Sale of the Properties located in
Maryland), and (C) in either case, the actual recording charges and other
reasonable and customary settlement fees payable by HESPLP or MC/RVM Associates
Limited Partnership or half of those paid by 4600 Forbes Boulevard Joint
Venture pursuant to such transfer; (iii) all principal and interest owed at the
closing by a Partnership to the Existing Mortgagee of such Property or to such
other mortgagee as may hereafter be approved by Lender in accordance with the
terms of this Agreement; (iv) loan commitment fees, points and reasonable
mortgage brokers' fees payable to unrelated third parties incident to a
Refinancing; (v) reasonable legal fees of the Partnerships incident to a Sale,
and reasonable legal fees of the Partnerships and any lender's counsel incident
to a Refinancing; (vi) market rate title insurance premiums and survey costs
incident to a Refinancing; (vii) customary closing adjustments apportioning
real estate taxes and utility bills; and (viii) the "disposition fee" and
"mortgage brokerage fee" payable to Combined Properties Incorporated for its
own account as shown on Exhibit K attached hereto.
(bb) "Note" shall mean that promissory note substantially
in the form attached here as Exhibit B executed by Borrower in favor of Lender
evidencing the indebtedness of Borrower to Lender, as it may hereafter be
amended.
(cc) "Obligations" shall mean all duties, covenants and
responsibilities due to Lender by Borrower with respect to the Loan and/or this
Agreement.
(dd) "Partnerships" shall mean HESPLP, MC/RVM Associates
Limited Partnership, and 4600 Forbes Boulevard Joint Venture.
(ee) "Pledge Agreements" shall mean (i) that certain Pledge
and Assignment of Partnership Interests dated of even or approximate date
herewith executed by Borrower for the benefit of Lender, (ii) those certain
Pledges and Assignments of Partnership Interests dated of even or approximate
date herewith executed by RSH for the benefit of Lender, (iii) that certain
Pledge and
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Assignment of Partnership Interests dated of even or approximate date herewith
executed by the HHH Trust for the benefit of Lender, (iv) that certain Pledge
and Assignment of Partnership Interests dated of even or approximate date
herewith executed by RSH GP LLC for the benefit of Lender, (v) that certain
Pledge and Assignment of Member Interests dated of even or approximate date
herewith executed by RSH for the benefit of Lender, (vi) that certain Pledge
and Assignment of Partnership Interests (CP/Forbes) by Combined
Properties/Forbes Boulevard Limited Partnership for the benefit of Lender,
(vii) that certain Pledge and Assignment of Partnership Interests (CP/Forbes
Inc.) dated of even or approximate date herewith executed by CP/Forbes
Boulevard, Inc. for the benefit of Lender, (viii) that certain Pledge and
Assignment of Stock dated of even or approximate date herewith executed by RSH
for the benefit of Lender, and (ix) that certain Pledge Agreement (Debt
Instruments) dated of even or approximate date herewith executed by Borrower
for the benefit of Lender, as any of them may hereafter be amended.
(ff) "Pledged Notes" means those Promissory Notes payable
to Combined Properties Limited Partnership (i) by RSH dated July 30, 1993 in
the original principal amount of $10,118,687.00, and (ii) by Capital Resources
Limited Partnership dated August 15, 1994 in the original principal amount of
$13,017,529.00, as the same may hereafter be replaced, amended, restated or
otherwise modified (no such replacement, amendment, restatement or other
modification being permitted without Lender's consent in its sole and absolute
discretion).
(gg) "Principal Amount" shall mean the aggregate unpaid
principal balance of the Note at the time in question, including accrued but
unpaid interest thereon.
(hh) "Property" shall mean any one or all of Rolling Valley
Mall, Maryland City Plaza, Sully Plaza and/or 4600 Forbes Boulevard.
(ii) "Qualified Expenses" shall mean 99% of the expenses
incurred in connection with the ownership, operation and maintenance of the
Properties (other than 4600 Forbes Boulevard) as set forth below:
(i) the payment of all reasonable and normal
operating expenses for the Properties, including (without limitation)
(A) debt service payments to the Existing Mortgagees and other future
mortgagees permitted by Section
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14(c) below or otherwise approved by Lender in accordance with the
terms of this Agreement, (B) tax and other loan escrows, (C) tenant
improvements and allowances to the extent not paid for from any
reserves maintained under clause (E) below, (D) leasing commissions,
management fees, accounting, legal and other professional fees to the
extent not paid for from any reserves maintained under clause (E) below
(provided, however, that to the extent any of the foregoing commissions
or fees are to be paid to Combined Properties Incorporated, to any
member of the Haft family, or to any Affiliate of any member of the
Haft family, the commission or fee shall be in accordance with the
schedule attached hereto as Exhibit K or in accordance with such other
schedule, if any, proposed by Borrower as Lender may hereafter approve
in its sole and absolute discretion), and (E) the establishment of
reserves approved by any current mortgagee or Lender-approved future
mortgagee, but such reserves shall not be less than $10.00 per square
foot of vacant space then existing in the Properties and $7.00 per
square foot of space attributable to leases at the Properties that
terminate within twelve months from the date of any calculation of net
cash flow, such reserves to be in the alternative (and not additive)
and to be used only for the purposes set forth in clauses (C) and (D)
above;
(ii) capital expenditures on the Properties, but only
to the extent the same are not paid for from any reserve established
under paragraph (i) above;
(iii) the distributions or repayments, but without
interest or other return on investment, to partners in Borrower,
HESPLP, or MC/RVM Associates Limited Partnership in the amount of any
capital contributions or loans made to cover such reasonable and normal
operating expenses at any of the Properties; and
(iv) distributions made by RSH in the ordinary course
of business if such distributions are immediately recontributed to or
loaned to HESPLP or MC/RVM Associates Limited Partnership, or to
Borrower on their behalf, to cover other expenses that would otherwise
be a Qualified Expense hereunder.
Subject to the foregoing clauses (i), (iii) and (iv), notwithstanding anything
herein stated or implied to the contrary or provided in Borrower's partnership
agreement or elsewhere, no
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preferential return or allocation or other payment, however called, payable to
any member of the Haft family or to any Affiliate of the Haft family shall be a
Qualified Expense or otherwise deducted from Gross Revenues in calculating Net
Operating Income.
(jj) "Refinancing" shall mean any loan made to Borrower or
any Partnership secured by a lien on a Property (other than an Existing
Mortgage).
(kk) "Rolling City" shall mean Rolling City Funding
Company.
(ll) "Rolling Valley Mall" shall mean that certain real
property located in Burke, Virginia more particularly described in Exhibit C
attached hereto and incorporated herein, together with all improvements located
thereon and appurtenances related thereto.
(mm) "RSH" shall mean Ronald S. Haft.
(nn) "RSH GP LLC" shall mean RSH GP LLC, a Delaware limited
liability company, the sole general partner of Borrower.
(oo) "Sale" shall mean the sale or other transfer of all or
any part of a Property.
(pp) "Sully Plaza" shall mean that certain real property
located in Fairfax County, Virginia more particularly described in Exhibit D
attached hereto and incorporated herein, together with all improvements located
thereon and appurtenances related thereto.
9. PRINCIPAL REPAYMENT; MANDATORY PREPAYMENTS.
(a) Unless sooner paid, on the Maturity Date the entire
outstanding Principal Amount of the Loan, together with all unpaid accrued
interest, fees, costs and expenses secured by the Loan Documents and/or
provided for therein or herein, shall be immediately due and payable without
notice or demand.
(b) Upon the Sale or Refinancing of all or any part of a
Property, Borrower shall make a mandatory prepayment to Lender in an amount
equal to the Net Sales or Refinancing Proceeds.
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(c) Borrower shall make mandatory prepayments on the Loan
in an amount equal to any amounts paid to Borrower from the maker(s) of the
Pledged Notes. Borrower shall instruct, and shall cause Combined Properties
Limited Partnership to instruct, the makers of the Pledged Notes to make those
payments directly to Lender. In the event Borrower or Combined Properties
Limited Partnership receives such payments directly from the maker of the
Pledged Note, such payments shall be forwarded to Lender within two (2)
business days thereafter.
(d) Borrower shall make mandatory prepayments on the Loan
from and after the fifth (5th) anniversary of the date hereof to the extent
there is any Net Operating Income on a semi-annual basis.
(e) Borrower shall make mandatory prepayments on the Loan
in an amount equal to any amounts prepaid to Borrower, to Combined Properties
Limited Partnership and/or to Capital Resources Limited Partnership from the
makers of the HCP Notes, less any proceeds that have: (i) been pledged to
another creditor pursuant to Combined Properties Limited Partnership's
confirmed plan of reorganization, or the confirmed plans of reorganization for
the makers of the HCP Notes, in U.S. Bankruptcy Court for the District of
Maryland, Case No. 95-1-3122-DK (Combined Properties Limited Partnership); Case
No. 95-1-3101-DK (Charles County Associates Limited Partnership); Case No.
97-1-3200-DK (CP Acquisition Limited Partnership); Case No. 95-1-3098-DK
(Combined Properties/Reseda Associates Limited Partnership); and Case No.
97-1-3198-DK (Arrow Lease Acquisition Limited Partnership); or (ii) been used
for capital improvements, tenant lease-up or other customary operating
expenses, or will be used as a reserve for a Qualified Expense pursuant to
Section 1(ai)(i)(E) above, at the Properties or at a property owned by any
maker of an HCP Note or by Combined Properties Limited Partnership.
(f) Borrower shall make mandatory prepayments as set forth
in the Pledge Agreements if the Forbes Buy/Sell (as defined therein) is
invoked.
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10. INTEREST RATE; INTEREST PAYMENTS.
(a) Commencing as of the date hereof and continuing until
repayment in full of all sums due under this Agreement, the Principal Amount
shall bear interest at the Applicable Interest Rate. Payments of interest only
on the Principal Amount shall be payable to Lender on the first day of each
calendar month from and after the date hereof.
(b) Notwithstanding Section 3(a) above, during the period
commencing on the date hereof and ending on the date which is the fifth (5th)
anniversary of the date of this Agreement, Borrower shall pay to Lender, on the
first day of each calendar month, interest only on the Principal Amount at the
rate of four percent (4%) per annum. The difference between the interest
payable under Section 3(a) above and that paid under this subsection shall
accrue and be added to the Principal Amount but without any interest thereon
until such fifth (5th) anniversary. (By way of example and not of limitation,
if no principal payments are made for the first five years, then: the
difference between the earn rate under Section 3(a) above and the pay rate
under this subsection is 8% - 4% = 4%/year; 4%/year times $10,000,000 =
$400,000 of deferred accrued interest becoming principal, without further
interest accruing, per year; $400,000/year times 5 years = $2,000,000 of
additional principal; $10,000,000 of original principal + $2,000,000 of
additional principal = an aggregate principal balance of $12,000,000 after 5
years, all of which thereafter bears interest and is payable at 8%/year per
Section 3(a) above.)
11. ADDITIONAL INTEREST. Upon repayment of the Loan in full,
whether before, on or after the Maturity Date (without hereby implying that the
Loan will not be in default if not paid in full on the Maturity Date), Borrower
shall pay to Lender, as "Additional Interest," an amount equal to the
difference between (i) the amount that Lender would have received if the
Applicable Interest Rate throughout the term of the Loan was eleven percent
(11%) per annum, compounded monthly, and (ii) the amount of interest actually
paid to Lender by Borrower with respect to the Loan; provided, however, the
obligation to pay Additional Interest pursuant to the provisions of this
Section shall be limited to the extent by which the Net Property Value exceeds
(x) the original Principal Amount plus accrued interest thereon at the
Applicable Interest Rate plus (y) the original principal balance plus accrued
interest thereon at a rate not to exceed the Applicable Interest Rate under all
Haft-family Loans.
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12. LATE CHARGE. In the event that any payment due under the
terms of this Agreement (except the payment due on the Maturity Date) is not
received by Lender within five (5) days after the date such non-Maturity Date
payment is due (inclusive of the date when due), Borrower shall pay to Lender
on demand a late charge equal to five percent (5%) of such payment or the
maximum rate provided by law. In the event that any payment due under the
terms of this Agreement on the Maturity Date is not received by Lender within
thirty (30) days after the Maturity Date (inclusive of the Maturity Date),
Borrower shall pay to Lender on demand a late charge equal to five percent (5%)
of such payment or the maximum rate provided by law.
13. DEFAULT INTEREST RATE. Upon the occurrence of an Event of
Default (hereinafter defined), all amounts due hereunder shall bear interest
thereafter until such Event of Default is cured at a rate which is at all times
equal to three percent (3%) per annum in excess of the rate of interest
announced publicly by Citibank, N.A. in New York, New York from time to time as
Citibank N.A.'s base rate or prime rate (which is not necessarily the lowest
rate offered to borrowers by Citibank, N.A.).
14. PREPAYMENT. Borrower may prepay the Principal Amount in whole
or in part, at any time or from time to time without premium or penalty.
15. MANNER AND APPLICATION OF PAYMENTS. All payments on account
of the Loan shall be paid in lawful money of the United States of America in
immediately available funds, without offset, deduction or recoupment. All
payments, including prepayments, made on account of the Loan, regardless of how
the same may be designated by Borrower, shall be applied first to the payment
of any late charge, costs, expenses and all other amounts (other than principal
and interest) due hereunder, second, to the payment of accrued and unpaid
interest then due hereunder, and the remainder, if any, shall be applied to the
outstanding Principal Amount; provided, however, if an Event of Default has
occurred, Lender shall have the right to apply such payments in such order as
Lender shall determine in its sole discretion. If any payment of principal,
interest or other amounts to be made hereunder shall become due on a day other
than a Business Day, such payment may be made on the next succeeding Business
Day (unless the result of such extension of time would be to extend the date
for such payment into another calendar month or beyond the Maturity Date; in
any such event, payment shall be made on the Business Day immediately preceding
the day on which such
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payment would otherwise have been due) and such extension of time shall in such
case be included in computing the interest, if any, in connection with such
payment.
16. LOAN DOCUMENTS. The Obligations are evidenced by, secured by
and guaranteed by the Loan Documents.
17. WAIVER.
(a) Borrower and all endorsers, guarantors, and other parties
who may now or in the future be primarily or secondarily liable for the payment
of the Obligations (whether one or more hereinafter called an "Obligor") hereby
jointly and severally waive, to the extent permitted by applicable law:
(i) presentment, protest and demand, notice of
protest, notice of demand and of dishonor and non-payment of the Note
and expressly agree that the Note or any payment thereunder may be
extended from time to time without in any way affecting the liability
of Borrower, guarantors and endorsers;
(ii) to the extent allowed by law, the benefits of
any law or rule intended for such Obligor's advantage or protection as
an obligor hereunder or providing for such Obligor's release or
discharge from liability hereon, in whole or in part, on account of any
facts or circumstances other than full and complete payment of all
amounts due hereunder, including, but not limited to, all rights to the
benefits of any statute of limitations and any moratorium,
appraisement, exemption or homestead law now provided or which may
hereafter be provided by any federal or state statute or decision,
including but not limited to exemptions provided by or allowed under
the United States Bankruptcy Code both as to themselves personally and
as to all of its or their property, whether real or personal, against
the enforcement and collection of the Obligations and any and all
extensions, renewals and modifications hereof; provided, however, that
the foregoing waiver shall not apply to any one homestead claimed by
RSH in the State of Florida;
(iii) any and all defenses based on the failure of
Lender to diligently collect the sums due hereunder;
(iv) all other defenses available to sureties and
guarantors generally.
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(b) Each Obligor (i) agrees that Lender, at any time or
times, without notice to it or its consent, may grant extensions of time,
without limit as to the number or the aggregate period of such extensions, for
the payment of any principal or interest due hereon, or other accommodations
with respect to the indebtedness evidenced hereby, and (ii) consents to all
renewals, extensions, releases, restatements, rearrangements, or substitutions
of security, in whole or in part, with or without notice, before or after
maturity hereof and to all partial payments on the Loan, whether before or
after maturity.
(c) No renewal or extension of the Note, no release of
collateral securing repayment of the Note, and no delay in enforcement of the
Note or in exercising any right, power or remedy hereunder or under any other
Loan Document, provided by applicable law, or otherwise shall affect the
liability of any Obligor.
18. RECORDS; REPORTS AND AUDITS; MAINTENANCE OF RECORDS. Borrower
shall keep and maintain or will cause to be kept and maintained on a fiscal
year basis in accordance with generally accepted accounting principles
consistently applied proper and accurate books, records and accounts reflecting
all of the financial affairs of Borrower and the Partnerships in connection
with their business. Lender, its agents, accountants and attorneys shall have
the right from time to time upon three (3) Business Days prior notice at all
times during regular business hours to examine such books, records and accounts
at the office of Borrower or other person maintaining such books, records and
accounts and to make copies or extracts thereof as Lender shall desire;
provided, however, that so long as there shall not have occurred as Event of
Default or other event, or condition which with the giving of notice or lapse
of time, or both, would constitute an Event of Default, Lender shall not
exercise such right more than three (3) times in any twelve (12) month period.
Borrower will furnish Lender annually, within one hundred twenty (120) days
next following the end of each fiscal year, with: (a) the audited income
statements (containing a fully itemized statement of profit and loss and of
surplus) and balance sheets of Borrower and each Partnership, and the cash flow
statement in respect of the businesses for such fiscal year, all of which shall
be certified by a certified public accountant reasonably satisfactory to Lender
as having been prepared in accordance with generally accepted accounting
principles consistently applied; (b) the balance sheet of each of the
individual Guarantors for
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such fiscal year all of which shall be in form similar to those statements
presented to Lender on or before the date hereof in connection with the making
of the Loan; (c) a detailed rent roll for each Property (which shall include a
list of all expiring leases and their respective dates of expiration); (d) a
detailed operating budget with respect to the businesses for the current fiscal
year; and (e) copies of the most recently filed federal and state tax returns
of Borrower, each Partnership, and each of the individual Guarantors. Borrower
shall furnish to Lender, within ten (10) days after request, such further
detailed information covering the operation of the business and the financial
affairs of Borrower and each Partnership, any partner of Borrower, and any
Guarantor, as may be reasonably requested by Lender.
19. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower
represents and warrants as of the date hereof:
(a) That Borrower is a duly organized and validly existing
limited partnership under the laws of the State of Maryland and is duly
qualified to transact business in the Commonwealth of Virginia; that the
limited partnership agreement of Borrower dated __________, 1997, a true,
correct and complete copy of which being attached hereto and incorporated
herein as Exhibit E, has not been amended or modified; that the limited
partnership certificate of Borrower dated ___________, 1997, as filed among the
appropriate records of the jurisdiction of its organization, a true, correct
and complete copy of which being attached hereto and incorporated herein as
Exhibit F, has not been amended or modified; that all of the general partner
interests in Borrower are owned by RSH GP LLC and are not subject to any lien,
claim, option, pledge or other contract affecting the ownership thereof; that
all of the limited partner interests in Borrower are owned by RSH and the HHH
Trust, and, except as pledged as collateral for the Haft-family Loan, are not
subject to any lien, claim, option, pledge or other contract affecting the
ownership thereof.
(b) That Borrower is the owner of 99% of the partnership
interests in HESPLP, the owner in fee simple of Sully Plaza, and MC/RVM
Associates Limited Partnership, the owner in fee simple of Maryland City Plaza
and Rolling Valley Mall, respectively, including any improvements and related
appurtenances thereon located in the Commonwealth of Virginia and the State of
Maryland, as more particularly identified in Exhibits D, A and C, respectively
attached hereto and
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incorporated herein as Sully Plaza, Maryland City Plaza and Rolling Valley
Mall; that 4600 Forbes Boulevard Joint Venture is the owner in fee simple of
the premises, including any improvements and related appurtenances thereon
located in the State of Maryland, as more particularly identified on Exhibit G
as 4600 Forbes Boulevard; that possession has been peaceable and undisturbed,
and to Borrower's knowledge the title thereto has never been disputed,
questioned or rejected, nor does the undersigned know of any facts by reason of
which said possession or title might be disturbed or questioned, or by reason
of which any claim to the Properties or any part thereof or any interest
therein adverse to Borrower or the Partnerships might arise or be set up; that
no person, firm or corporation has any contract for the purchase of, or any
claim to or against the Properties or any part thereof, and that the same are
now free and clear of any and all taxes, encumbrances or liens by mortgage,
deed of trust, judgment, decree, statute, levy under any execution, or by
virtue of any proceedings by or against Borrower or a Partnership in any
federal or state court or filed in the office of the clerk of any county in the
Commonwealth of Virginia or the States of Delaware or Maryland or with the
Recorder of Deeds for the District of Columbia, as appropriate, and of all
other liens of every nature and description except as set forth on Exhibit H
attached hereto and incorporated herein.
(c) That the chattels, fixtures, furniture, equipment and
personalty in, upon and used in connection with the Properties are free and
clear of any and all liens, claims and encumbrances of whatsoever kind or
nature, except as set forth on Exhibit H attached hereto and incorporated
herein.
(d) That Borrower and the Partnerships have fully complied
with all material terms, conditions and covenants of all instruments affecting
title to the Properties and chattels, have not received written notice of any
default thereunder and, to the best of their knowledge, are not in any way in
default thereunder.
(e) That there are no judgments or decrees or attachments or
orders of any court or officer for the payment of money against Borrower or to
which it is a party, unsatisfied or not canceled of record in any of the
courts, or before any officer, of the United States or of the Commonwealth of
Virginia and the States of Delaware and Maryland, or any suit or proceeding
pending anywhere affecting Borrower and that any judgments found of record
against any person under the name or
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names of Borrower are not against Borrower, but against another person or
entity of similar name; that no proceedings in bankruptcy have been instituted
by or against Borrower, nor has Borrower made an assignment or assignments for
the benefit of creditors; that Borrower is solvent.
(f) That, except for work done in the ordinary course of
business for which payment is to be made in the ordinary course of business, no
work has been performed at or materials furnished to the Properties or any part
thereof which may give rise to a claim or lien for materials supplied or for
labor or services performed.
(g) That the execution, delivery and performance of the Loan
Documents will not result in a violation or breach of or constitute a default
under any court order, writ, judgment or decree issued by any competent
judicial, quasi-judicial or other governmental body, agency or authority, and
further will not result in a violation or breach of or constitute a default
under any mortgage, contract, agreement or other instrument by which any party
thereto (other than Lender) may be bound or by which any of its assets may be
bound.
(h) That all persons who executed the Loan Documents (other
than on behalf of Lender), including the Note evidencing the Loan, have the
capacity and the authority to execute the Note and the other Loan Documents and
to bind the parties thereto thereunder without further approvals or
authorizations.
(i) That Borrower is acting with respect to the execution and
performance of the Loan Documents solely in Borrower's own right as principal,
and not as agent, broker, or attorney-in-fact or otherwise.
(j) That Borrower and the Partnerships have been and are
presently engaged exclusively directly or indirectly in the business of real
estate ownership, development and management with regard to the Properties.
(k) That the proceeds of the Loan will be used solely for the
purpose of paying $10,000,000 to Herbert H. Haft in payment of certain
promissory notes given to him in the Haft-family Loan and that, upon such
payment being made, the outstanding principal, interest and other amounts under
the Haft-family Loan will be no more than Ten Million Dollars ($10,000,000.00)
plus any accrued but unpaid interest thereon.
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(l) That, except as may be set forth on any title commitment
listed on Exhibit L attached hereto, each Property consists of an integral land
area, with no voids, slivers, strips or gores not owned in fee simple
(including legal and equitable title) by the Partnerships and that there are no
lapses or voids in the description of any Property.
(m) That there are no pending or, to Borrower's knowledge,
threatened annexation or condemnation proceedings or other litigation or
proceedings against or affecting any part or all of the Properties, except
there is one pending road widening relating to Sully Plaza but it will not have
a material adverse effect on Sully Plaza.
(n) That each Property is zoned as set forth on Exhibit I
attached hereto and incorporated herein and that such zoning is in good
standing and full force and effect and permits the current use of such Property
(the "Current Use").
(o) That, to Borrower's knowledge, there are no pending or
proposed ordinances, rules, regulations or other actions on the part of any
governmental body, department or agency having jurisdiction over the Properties
or any part thereof that would adversely affect the value of the Properties or
the ability and right of the Partnerships to operate the Current Use on the
Properties.
(p) That all applicable subdivision regulations, zoning
ordinances and other applicable laws have been complied with in the Current Use
on the Properties; and that all necessary building, use, sewer and other
permits have been issued for the Current Use, and that such permits are in good
standing and in full force and effect.
(q) That Borrower has not received any notice of, and to the
best of Borrower's knowledge there are no, violations of any law, ordinance, or
governmental regulation (including but not limited to building and zoning
ordinances and regulations) restricting or regulating or prohibiting the
occupancy, use or enjoyment of the Properties or regulating the character or
dimensions or location of any improvement now erected on the Properties or any
part thereof.
(r) That no notice has been received by Borrower or any of
the Partnerships from any public authority or any insurance company of the
existence of any condition or situation
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which required work to be done or other acts to be performed to cure an
unsatisfactory condition with respect to the Properties or any part thereof
which remains undone at the date hereof.
(s) That all licenses, permits and authorizations required
from local utility companies or municipal authorities have been obtained to
insure that necessary telephone, drainage, gas, and/or electric, sewer and
water facilities are available to each Property in quantities sufficient for
the Current Use of such Property.
(t) That, to the best of Borrower's knowledge, all utilities
and drainage facilities are located on or contiguous to each Property, without
the need for off-site easements across property other than such Property.
(u) That there exists adequate vehicular and pedestrian
access to and from each Property, to and from all adjoining streets and roads
without governmental prohibition or restriction, and without the requirement of
further dedications for future widenings or of obtaining easement rights across
property other than such Property.
(v) That there are no reciprocal parking agreements affecting
the Properties or any part thereof except as shown on Exhibit H with respect to
4600 Forbes Boulevard, Lanham, Maryland.
(w) That, except as disclosed in the Environmental Reports or
to the extent the same does not involve reportable quantities under applicable
law: the Partnerships have never used, processed, released, discharged,
generated, stored or disposed of any Hazardous Substance (hereinafter defined)
on, under or about the Properties or any part thereof or from the Properties or
any part thereof to any other location; to Borrower's knowledge no Hazardous
Substances have been used, processed, released, discharged, generated, stored
or disposed of on the Properties or any part thereof by any other person or
entity except as customarily done by tenants in the normal course of business
and in compliance with applicable law; and to Borrower's knowledge no Hazardous
Substances are currently located on the Properties or any part thereof.
(x) That the Loan has been duly guaranteed by the Guarantors
pursuant to the Guaranty; that except as set forth on Exhibit J attached hereto
and incorporated herein, there are no
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judgments or decrees or attachments or orders of any court or officer for the
payment of money against the Guarantors, or any of them, or to which the
Guarantors, or any of them, are a party which are unsatisfied or not cancelled
of record in any of the courts, or before any officer, of the United States or
of the States of Maryland and Delaware, the District of Columbia and the
Commonwealth of Virginia, or in any suit or proceeding pending anywhere
affecting the Guarantors, or any of them, and that any judgments found of
record against any person or entity under the name or names of the Guarantors,
or any of them, and not listed on Exhibit J are not against the Guarantors, but
against another person or entity of similar name; that no proceedings in
bankruptcy have been instituted by or against the Guarantors, or any of them,
nor have the Guarantors, or any of them, made an assignment or assignments for
the benefit of creditors; that the individuals comprising the Guarantors are
solvent.
20. COVENANTS OF BORROWER. Borrower covenants and agrees with
Lender as follows:
(a) Borrower shall maintain in good standing its
existence, franchises, rights and privileges under the laws of the jurisdiction
of its organization and its rights to transact business in the State of
Maryland and the Commonwealth of Virginia. Borrower shall not, and shall not
permit the Partnerships or Combined Properties/Forbes Boulevard Limited
Partnership or CP/Forbes Boulevard, Inc. to, dissolve, terminate or otherwise
dispose, directly or indirectly or by operation of law, of all or substantially
all of its or their assets except as set forth in Section 14(b) below or in any
other Loan Document to which Combined Properties/Forbes Boulevard Limited
Partnership or CP/Forbes Boulevard, Inc. is a party, or, without giving Lender
at least sixty (60) days prior written notice, change its or their legal
structure or name. Borrower shall not admit, or allow any of the Partnerships
or Combined Properties/Forbes Boulevard Limited Partnership to admit, any new
partner therein, nor shall Borrower allow any new shareholder in CP/Forbes
Boulevard, Inc. or any new member in RSH GP LLC. Borrower shall not amend its,
nor permit the amendment of the Partnerships' or Combined Properties/Forbes
Boulevard Limited Partnership's partnership agreements (or their limited
partnership certificates) in any way that could adversely affect (i) Borrower's
ability to repay the Loan or perform its other obligations under the Loan
Documents, (ii) the collateral pledged under the Loan Documents or (iii)
Lender's rights and remedies
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under the Loan Documents, without the prior written consent of Lender.
(b) Borrower will comply with all covenants, obligations
and restrictions set forth in the Existing Mortgages or any Refinancing
thereof, including, but not limited to, the covenants regarding maintenance and
repair, payment of taxes and assessments, insurance requirements, and
compliance with applicable laws.
(c) Borrower will provide Lender with a copy of any notice
of default received by Borrower from the holder of any mortgage encumbering the
Properties or any portion thereof within two (2) Business Days after receipt
thereof by Borrower.
(d) Borrower shall make the capital expenditures
contemplated by the terms of the bankruptcy plans of reorganization applicable
to each Property as and when required thereunder, as such plans of
reorganization have been approved by Lender.
(e) Borrower shall comply and shall cause the Partnerships
to comply in all material respects with all covenants and obligations of the
landlord set forth in all leases of space in the Properties or any portion
thereof.
(f) Borrower shall cause the Partnerships to amend their
existing respective management agreements with Combined Properties Incorporated
to provide (or enter into new management agreements with Combined Properties
Incorporated providing) that, if Lender or any successor to Lender (whether at
foreclosure sale or otherwise) gains control of any such Partnership, the
management agreement between that Partnership and Combined Properties
Incorporated may be terminated by that Partnership without cause and without
payment of any termination fee or penalty of any type on not less than thirty
(30) days written notice to Combined Properties Incorporated. The foregoing
does not supersede the rights of any mortgagee under an Existing Mortgage.
(g) Borrower shall cause Capital Resources Limited
Partnership to amend the HCP Notes made by HESPLP and by Combined
Properties/Forbes Boulevard Limited Partnership to provide that if Lender or
any successor to Lender (whether at foreclosure sale or otherwise) gains
control of either of such partnerships, the HCP Note made by that partnership
shall automatically be deemed
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cancelled and all debt evidenced thereto or incurred pursuant thereto forgiven.
21. NEGATIVE COVENANTS OF BORROWER. Borrower covenants and agrees
with Lender that it shall not:
(a) Terminate, cancel, amend, modify or otherwise alter
any of the management agreements related to the Properties entered into with
Combined Properties Incorporated without the prior written consent of Lender
(except pursuant to a plan of reorganization approved by Lender) or enter into
a new management agreement affecting one or more of the Properties without the
prior written consent of Lender.
(b) Permit the Partnerships to, whether voluntarily or
involuntarily, sell, grant, convey, assign or otherwise transfer, by operation
of law or otherwise, the Properties or any part thereof, without the prior
written consent of Lender except as an Arms-Length Sale to an unrelated third
party with the Net Sales Proceeds being paid to Lender or, in the absence of an
Arms-Length Sale, with the Net Property Value under Section 1(y)(ii) above
being paid to Lender.
(c) Permit the Partnerships to enter into a Refinancing
with respect to the Properties or any part thereof without the prior written
consent of Lender unless such refinancing is on commercially reasonable terms
(including, without limitation, requiring regular principal amortization, not
containing any participation or equity kicker, and otherwise being made on such
terms as life insurance companies are making permanent mortgage loans on the
date hereof), at market rates, and is structured in such a way so as to not
adversely prejudice Lender's interests with the Net Refinancing Proceeds being
paid to Lender. In no event shall any second mortgage financing be permitted.
Borrower shall not and shall not permit the Partnerships to permit any lien,
encumbrance, charge, assessment or imposition (other than the Existing
Mortgages or such permitted Refinancing) to become due and payable out of or in
respect of, or become a lien on, the Properties or any part thereof without the
prior written consent of Lender.
(d) Permit any Partnership to enter into any new lease
with respect to more than 50,000 square feet of space in the Properties or any
portion thereof without the prior written consent of Lender.
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(e) Permit or allow, or permit or allow the Partnerships
to permit or allow, any Hazardous Substance to (i) affect, (ii) be generated on
or deposited upon, (iii) be incorporated into, (iv) be transported to or from,
or (v) be stored on the Properties or any portion thereof, except as
customarily done by tenants in the normal course of business and in compliance
with applicable law; provided, however, that Borrower shall not be in default
of this subsection if a non-Affiliate does any of the foregoing without
Borrower's knowledge or with Borrower's knowledge but Borrower is unable to
prevent it.
(f) Prepay any Haft-family Loan without the prior written
consent of Lender except when required to do so by the terms of the loan
documents applicable to that Haft-family Loan.
(g) Nor shall Borrower permit any Partnership or any
partner of any Partnership to indemnify or guaranty the obligations of any
third party except as specifically contemplated by the Loan Documents.
22. EVENTS OF DEFAULT. The occurrence of any one or more
of the following events shall constitute an event of default (individually, an
"Event of Default" and collectively, the "Events of Default") under this
Agreement:
(a) Lender has not actually received any payments (other
than payments due on the Maturity Date) due and payable by Borrower to Lender
under the terms of this Agreement including, but not limited to, payments of
principal and interest (including Additional Interest), within five (5) days
after giving written notice to Borrower that any such payment is overdue;
provided, however, that Lender need not give such notice more than two (2)
times in any calendar year and thereafter during any calendar year an Event of
Default shall exist if Lender has not actually received any payments (other
than payments due on the Maturity Date) due and payable by Borrower to Lender
under the terms of this Agreement including, but not limited to, payments of
principal and interest (including Additional Interest), within five (5) days
after the date due;
(b) Lender has not actually received all payments due and
payable at the Maturity Date, including, but not limited to, the Principal
Amount, accrued interest thereon and Additional Interest;
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(c) failure of Borrower to perform, observe or comply with
any non-monetary agreement, covenant or promise made under this Agreement or
under any of the other Loan Documents and not covered elsewhere in this section
if such failure continues beyond any applicable notice and cure period set
forth elsewhere in this Agreement or the Loan Documents or, if no notice and
cure period is specified, if such failure continues for more than thirty (30)
days after written notice thereof is given to Borrower; provided, however, that
no Event of Default shall exist if such failure is not reasonably capable of
being cured in such thirty (30) day period but Borrower begins its cure within
such period and thereafter diligently prosecutes such cure to successful
completion within an additional sixty (60) day period;
(d) the occurrence of a default or an event of default by
any party other than Borrower under the terms and conditions of any of the
other Loan Documents (including, without limitation, the Guaranty), which
default or event of default remains uncured beyond any applicable grace and/or
cure period provided therefor;
(e) if Borrower has made any representation or warranty in
this Agreement or any other Loan Document that contains any untrue statement of
a material fact or omits a material fact necessary to make such representation
or warranty not misleading in a material and adverse manner;
(f) if Borrower or any Partnership sells, assigns,
transfers, pledges or encumbers, or allows to be sold, assigned, transferred,
pledged or encumbered, any interest or asset subject to the liens granted to
Lender under any other Loan Documents, except as may be expressly permitted by
this Agreement, without the prior written consent of Lender;
(g) the occurrence of any default under any other
borrowing if the result of such default would permit the acceleration of the
maturity of any note, loan or other agreement between Borrower or any
Partnership and any person other than Lender;
(h) the filing of any petition or relief under the United
States Bankruptcy Code or any similar Federal or State statute by Borrower or
the failure of Borrower to generally pay its debts as such debts become due;
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(i) the filing of any petition or relief under the United
States Bankruptcy Code or any similar Federal or State statute against Borrower
which is not discharged or dismissed within sixty (60) days after institution
thereof;
(j) the making of any application for the appointment of a
receiver for, or of a general assignment for the benefit of creditors by, or
the insolvency of, Borrower;
(k) the dissolution of Borrower;
(l) if any execution or attachment is levied against any
property of Borrower or any Partnership, and such execution or attachment is
not set aside, discharged or stayed within thirty (30) days after the same is
levied; or
(m) unless adequately covered by insurance in the opinion
of Lender, the entry of a final judgment for the payment of money involving
more than $300,000.00 against Borrower or any Partnership and the failure by
Borrower or such Partnership to discharge the same, or cause it to be
discharged, or bonded off to Lender's satisfaction, within thirty (30) days
from the date of the order, decree or process under which or pursuant to which
such judgment was entered.
23. REMEDIES.
(a) Upon the occurrence of an Event of Default, at the option
of Lender all amounts payable by Borrower to Lender under the terms of this
Agreement shall immediately become due and payable by Borrower to Lender
without notice to Borrower or any other person, and Lender shall have all of
the rights, powers and remedies available under the terms of this Agreement,
any of the other Loan Documents and all applicable laws.
(b) If Lender exercises its remedies under this Agreement
or any other Loan Document, then, notwithstanding anything to the contrary
contained in any Loan Document or in any partnership agreement or certificate
of limited partnership, certificate or articles of incorporation, operating
agreement or other organizational document of any signatory to any Loan
Document, or in any agreement between members of the Haft family or their
Affiliates, whether or not disclosed to Lender before the making of the Loan,
neither Lender nor any entity that is or comes under the control of Lender
shall be bound to make any distributions, allocations, or other payments to any
member of
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the Haft family or any Affiliate of any member of the Haft family under any
such document or agreement, or be bound to protect the tax position of any
member of the Haft family or any Affiliate of any member of the Haft family.
The foregoing includes, without limitation, any obligation of RSH, Borrower or
any partner in Borrower to protect Herbert H. Haft's tax position with respect
to Borrower or any of its assets.
24. EXPENSES; INDEMNIFICATION.
(a) Borrower promises to pay to Lender on demand by Lender
all reasonable costs and expenses incurred by Lender in connection with the
collection and enforcement of this Agreement or any portion thereof or the
enforcement of any other Loan Document, including, without limitation, all
reasonable attorneys' fees and expenses, investigation costs, and all court
costs, whether or not suit is filed hereon, whether before or after the
Maturity Date, or whether in connection with bankruptcy, insolvency or appeal,
or whether collection is made against Borrower or any Guarantor or endorser or
any other person primarily or secondarily liable hereunder.
(b) Borrower shall defend, indemnify and hold Lender
harmless from and against all fines, liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses imposed upon or incurred by or
asserted against Lender by reason of any matter whatsoever relating to this
Agreement, the Loan Documents and/or the Properties or the use, non-use or
condition of any thereof (except to the extent caused by the gross negligence
or willful misconduct of Lender or its agents) and/or by reason of any failure
by Borrower to perform any Obligations.
(c) Borrower agrees to indemnify and hold Lender harmless
from and against all fines and penalties and liabilities, including all
foreseeable and unforeseeable consequential damages and any other damages,
costs, and losses, including reasonable attorneys fees, directly or indirectly
and in whole or in part arising out of or attributable to Hazardous Substances
existing beneath or on the surface of the Properties or any part thereof at any
time or the migration thereof within or from the Properties at any time,
including, without limitation, the cost of any remedial, removal, response,
abatement, clean-up, investigative and monitoring costs and any other related
costs and expenses. If any action, suit or other proceeding is brought against
Lender by reason of any such occurrence, Lender shall have the right, at
Borrower's expense,
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to defend against such proceeding or require Borrower, at Borrower's expense,
to defend such proceeding by counsel designated by Lender.
(d) The provisions of this Section shall survive repayment
of the Loan.
25. SECURITY; GUARANTY. The Loan is secured by, among other
things, the Pledge Agreements and is guaranteed by the Guaranty.
26. REMEDIES CUMULATIVE. Each right, power, and remedy of Lender
as provided for in this Agreement or any of the other Loan Documents, or now or
hereafter existing under any applicable law or otherwise shall be cumulative
and concurrent and shall be in addition to every other right, power, or remedy
provided for in this Agreement or any of the other Loan Documents or now or
hereafter existing under any applicable law, and the exercise or beginning of
the exercise by Lender of any one or more of such rights, powers, or remedies
shall not preclude the simultaneous or later exercise by Lender of any or all
such other rights, powers, or remedies. No failure or delay by Lender to
insist upon the strict performance of any term, condition, covenant, or
agreement of this Agreement or any of the other Loan Documents, or to exercise
any right, power, or remedy consequent upon a breach thereof, shall constitute
a waiver of any such term, condition, covenant, or agreement or of any such
breach, or preclude Lender from exercising any such right, power, or remedy at
a later time or times. By accepting payment after the due date of any amount
payable under the terms of this Agreement, Lender shall not be deemed to waive
the right either to require prompt payment when due of all other amounts
payable under the terms of this Agreement or to declare an Event of Default for
the failure to effect such prompt payment of any such other amount. No
provision hereof may be waived or modified orally, but all such waivers or
modifications shall be in writing, expressly waiving or modifying such
provision and signed by the party against whom enforcement of any waiver or
modification is sought. No course of dealing or conduct shall be effective to
amend, modify, waive, release, or change any provisions of this Agreement.
27. GOVERNING LAW; CONSENT TO JURISDICTION. The provisions of
this Agreement shall be construed, interpreted and enforced in accordance with
the laws of the State of Maryland, without regard to conflicts of laws, as the
same may be in effect from time to
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time. Borrower irrevocably submits to the non-exclusive jurisdiction of any
state or federal court sitting in the State of Maryland or in the State of
Delaware over any suit, action, or proceeding arising out of or relating to
this Agreement or any other Loan Document. Borrower hereby agrees that Lender
shall have the option, in its sole discretion, to lay the venue of any such
suit, action or proceeding in any of the aforementioned courts. Borrower
irrevocably waives, to the fullest extent permitted by law, any objection that
Borrower may now or hereafter have to laying the venue of any such suit,
action, or proceeding brought in any such court and any claim that any such
suit, action, or proceeding brought in any such court has been brought in an
inconvenient forum. Borrower agrees that a final judgment (for which there is
no more right of appeal) in any such suit, action or proceeding brought in such
a court shall be conclusive and binding upon Borrower.
28. SERVICE OF PROCESS.
(a) Borrower hereby irrevocably designates and appoints
RSH as Borrower's authorized agent to accept and acknowledge on Borrower's
behalf service of any and all process that may be served in any suit, action,
or proceeding instituted in connection with this Agreement or any other Loan
Document in any state or federal court sitting in the State of Maryland or in
the State of Delaware. If such agent shall cease so to act, Borrower shall
irrevocably designate and appoint without delay another such agent satisfactory
to Lender and shall promptly deliver to Lender evidence in writing of such
agent's acceptance of such appointment and its agreement that such appointment
shall be irrevocable.
(b) Borrower hereby consents to process being served in
any suit, action, or proceeding instituted in connection with this Agreement or
any other Loan Document by the mailing of a copy thereof by certified mail,
postage prepaid, return receipt requested, to the agent hereinabove designated
and appointed by Borrower as Borrower's agent for service of process. Borrower
irrevocably agrees that such service shall be deemed to be service of process
upon Borrower in any such suit, action, or proceeding. Nothing in this
Agreement shall affect the right of Lender to serve process in any manner
otherwise permitted by law and nothing in this Agreement will limit the right
of Lender otherwise to bring proceedings against Borrower in the courts of any
other jurisdiction or jurisdictions. Initiating such proceeding or taking such
action in any other jurisdiction or
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state shall not, however, constitute a waiver of the agreement contained
herein that the laws of the State of Maryland shall govern the rights and
obligations of the parties hereunder.
29. NOTICE. Any notice, request, or demand to or upon Borrower or
Lender shall be in writing and shall be deemed given upon receipt (refusal to
accept delivery or inability to make delivery because of an incorrect or
outdated address provided by the intended recipient constituting receipt)
addressed as follows, unless any such address is changed by written notice
hereunder:
If to Lender: Dart Group Corporation
3300 75th Avenue
Landover, Maryland 20875
Attn: President
and
Attn: General Counsel
with a copy to: Kenneth J. Ayres, Esq.
Jones, Day, Reavis & Pogue
1450 G Street, N.W.
Washington, D.C. 20005-2088
If to Borrower: c/o Mr. Ronald S. Haft
58 La Gorce Circle
Miami Beach, Florida 33141
with a copy to: Jay Lefkowitz, Esq.
Kirkland & Ellis
655 15th Street, N.W.
Washington, D.C. 20005
30. INVALIDITY OF ANY PART. If this Agreement or any other Loan
Document or any one or more of the provisions contained in this Agreement or
any other Loan Document should be held to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of all remaining
provisions shall not in any way be affected or impaired. Notwithstanding the
foregoing, if interest in excess of such maximum legal rate of interest
permitted to be charged Borrower under applicable laws shall be paid or payable
hereunder, then the rate imposed hereunder shall be reduced to such maximum
legal rate, and if from any circumstances Lender shall ever receive as interest
an amount which would exceed the maximum lawful rate, such amount which would
be deemed excessive interest shall be applied to the
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reduction of the unpaid principal balance due hereunder and not to the payment
of interest.
31. COMMERCIAL PURPOSES. Borrower represents, covenants and
warrants that the use of the proceeds of the Loan is a business or commercial
purpose and not a household or consumer purpose, that the Loan is not secured
by residential real property, and that the Loan is a "commercial loan" as
defined in Section 12-101(c) of the Commercial Law Article of the Annotated
Code of Maryland.
32. MISCELLANEOUS.
(a) This Agreement and the documents and instruments
delivered pursuant hereto inure to the benefit of, and shall be binding upon,
the respective heirs, executors, administrators, successors and assigns of
Borrower and Lender. Any reference to any partnership, limited liability
company, trust, corporation or other entity, or to any natural person, shall
also be deemed to be a reference to its successors, assigns, heirs, or personal
representatives. Without limiting the generality of the foregoing, Lender
shall have the right to sell, transfer and/or assign this Agreement and the
other Loan Documents without the consent of Borrower.
(b) Time is of the essence as to each of the provisions
hereof.
(c) When the context or construction of the terms of this
Agreement so require, all words used in the singular herein shall be deemed to
have been used in the plural and the masculine shall include the feminine and
neuter. The captions herein set forth are for convenience only and shall not
be deemed to define, limit, or describe the scope or intent of this Agreement.
(d) This Agreement and the other Loan Documents set forth
the entire understanding of the parties hereto and supersede all prior
agreements between them with respect to the subject matter hereof and all prior
negotiations between the parties are merged in this Agreement and the other
Loan Documents, and there are no promises, agreements, conditions,
undertakings, warranties or representations, oral or written, express or
implied, between them other than as herein set forth.
(e) No waiver of any of the provisions of this Agreement
or any other agreement referred to herein shall be
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valid unless in writing and signed by the party against whom it is sought to be
enforced. The waiver by any party hereto of any matter provided for herein
shall not be deemed to be a waiver of any other matter provided for herein.
(f) This Agreement may be amended only by a written
agreement executed by the parties hereto.
(g) Notwithstanding the entry of any judgment under or in
connection with this Agreement, the outstanding principal balance of the Loan
shall continue to bear interest at the applicable rate or rates of interest
provided for in this Agreement unless required by law to bear a lower rate of
interest.
(h) This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original but
all of which together shall constitute one and the same instrument.
(i) The headings in this Agreement and the headings in the
exhibits hereto are solely for convenience of reference and shall not be given
any effect in the construction or interpretation of this Agreement. Unless
otherwise specified, references in this Agreement to sections or exhibits are
references to sections of or exhibits to this Agreement.
(j) Whenever this Agreement or any other Loan Document
requires a party to act reasonably, to not unreasonably withhold its consent,
to pay reasonable costs, expenses or fees, or otherwise uses or implies a
"reasonableness" standard and the parties disagree over whether such standard
has been met, the party challenging the reasonableness of the other party's
actions or challenging any cost, expense or fee charged to it or levied on it
shall have the burden of proof of proving the unreasonableness thereof and the
standard of proof shall be a "clearly erroneous" standard, which shall mean a
standard higher than the usual civil "preponderance of the evidence" or "more
likely than not" standard but lower than a criminal "beyond a reasonable doubt"
standard.
33. CONFESSION OF JUDGMENT. UPON THE OCCURRENCE OF AN EVENT OF
DEFAULT, BORROWER HEREBY AUTHORIZES ANY ATTORNEY DESIGNATED BY LENDER OR ANY
CLERK OF ANY COURT OF RECORD TO APPEAR FOR BORROWER IN ANY COURT OF RECORD AND
TO CONFESS JUDGMENT WITHOUT PRIOR HEARING AGAINST BORROWER IN FAVOR OF
34
46
LENDER FOR AND IN THE AMOUNT OF THE OUTSTANDING PRINCIPAL AMOUNT, ALL INTEREST
ACCRUED AND UNPAID THEREON, INCLUDING ADDITIONAL INTEREST, ALL OTHER AMOUNTS
PAYABLE BY BORROWER TO LENDER UNDER THE TERMS OF THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS, AND COSTS OF SUIT. THE AUTHORITY AND POWER TO APPEAR FOR
AND ENTER JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ONE OR MORE
EXERCISES THEREOF OR BY ANY IMPERFECT EXERCISE THEREOF AND SHALL NOT BE
EXTINGUISHED BY ANY JUDGMENT ENTERED PURSUANT THERETO. SUCH AUTHORITY MAY BE
EXERCISED ON ONE OR MORE OCCASIONS OR FROM TIME TO TIME IN THE SAME OR
DIFFERENT JURISDICTIONS AS OFTEN AS LENDER SHALL DEEM NECESSARY OR DESIRABLE,
FOR ALL OF WHICH THIS AGREEMENT SHALL BE A SUFFICIENT WARRANT.
34. WAIVER OF TRIAL BY JURY. BORROWER HEREBY WAIVES TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO WHICH IT AND LENDER MAY BE PARTIES ARISING OUT
OF OR IN ANY WAY PERTAINING TO THIS AGREEMENT, THE LOAN OR THE LOAN DOCUMENTS.
IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY
JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS,
INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS AGREEMENT.
35. REPRESENTATIONS OF BORROWER. BORROWER REPRESENTS AND WARRANTS
THAT THE WAIVER OF TRIAL BY JURY AND THE CONFESSION OF JUDGMENT CONTAINED
HEREIN ARE KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY BORROWER, AND BORROWER
HEREBY REPRESENTS THAT NO REPRESENTATIONS OF FACT OR AGREEMENTS HAVE BEEN MADE
BY ANY INDIVIDUAL TO INDUCE THE WAIVER OF TRIAL BY JURY OR CONFESSION OF
JUDGMENT OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. BORROWER FURTHER
REPRESENTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN
THE MAKING OF THE WAIVER OF TRIAL BY JURY AND THE CONFESSION OF JUDGMENT BY
INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD
THE OPPORTUNITY TO DISCUSS THE WAIVER OF TRIAL BY JURY AND THE CONFESSION OF
JUDGMENT WITH SUCH COUNSEL.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by its duly authorized
35
47
member(s), partner(s) or officer(s), as the case may be, as of the date first
written above.
BORROWER:
HHH/RSH TIER II LIMITED PARTNERSHIP
WITNESS: By: RSH GP LLC, its General Partner
By: (Seal)
- -------------------- -----------------------
Ronald S. Haft
Manager and Sole Member
LENDER:
ATTEST: DART GROUP CORPORATION
By: (Seal)
- -------------------- -----------------------
Name:
Title:
36
48
STATE OF ______________ *
* TO WIT:
COUNTY OF _____________ *
The undersigned, a Notary Public in and for the jurisdiction aforesaid,
does hereby certify that Ronald S. Haft, being authorized to do so, has
executed the foregoing and annexed document on behalf of Borrower as the act
and deed of Borrower, for the purposes therein contained by signing the name of
Borrower in the capacity set forth above as the authorized general partner
thereof.
GIVEN UNDER MY HAND AND OFFICIAL SEAL this ___ day of
____________, 1997.
--------------------------------
Notary Public
My Commission Expires:
--------------
[NOTARIAL SEAL]
37
49
STATE OF ______________ *
* TO WIT:
COUNTY OF _____________ *
The undersigned, a Notary Public in and for the jurisdiction aforesaid,
does hereby certify that ____________________, being authorized to do so, has
executed the foregoing and annexed document on behalf of Lender as the act and
deed of Lender, for the purposes therein contained by signing the name of
Lender in the capacity set forth above.
GIVEN UNDER MY HAND AND OFFICIAL SEAL this ___ day of
____________, 1997.
--------------------------------
Notary Public
My Commission Expires:
--------------
[NOTARIAL SEAL]
38
50
EXHIBIT B
PROMISSORY NOTE
$10,000,000.00 _____________, 1997
FOR VALUE RECEIVED, the undersigned, HHH/RSH TIER II LIMITED
PARTNERSHIP, a Maryland limited partnership (the "Borrower"), promises
unconditionally to pay to the order of DART GROUP CORPORATION, its successors
and assigns (the "Lender," which term shall mean the holder at any particular
time of this Note), the principal amount of TEN MILLION AND NO/100 DOLLARS
($10,000,000.00) (the "Loan") on the Maturity Date as defined in the Loan
Agreement or as otherwise provided in the Loan Agreement.
Borrower agrees to pay interest on the Loan from the date of the Loan
until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Loan Agreement referred to
below.
Both principal and interest are payable on the date when due in lawful
money of the United States of America to Lender at 3300 75th Avenue, Landover,
Maryland 20785 or at such other place, either within or without the State of
Maryland as Lender may from time to time designate.
Borrower hereby waives presentment, demand, protest and any notice of
any kind and agrees to pay all amounts of principal of and interest on this
Note without setoff, deduction counterclaim or defense of any kind.
This Note is the Note referred to in, and is entitled to the benefits
of, the Loan Agreement of even or approximate date herewith (the "Loan
Agreement"), between Borrower and Lender, and the Guaranty and the other Loan
Documents as defined in the Loan Agreement referred to therein and entered into
pursuant thereto. The Loan Agreement, among other things, (i) provides,
subject to the conditions set forth therein, for the making of the Loan by
Lender to Borrower, the indebtedness of Borrower resulting from such Loan being
evidenced by a promissory note, (ii) contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon
the
51
terms and conditions therein specified and (iii) provides for the Loan to be
secured by collateral in accordance with the provisions of the Loan Agreement
and the other Loan Documents.
This Note shall be governed by and construed in accordance with the
laws of the State of Maryland without regard to conflicts of laws, and has been
duly executed and delivered for value by Borrower.
HHH/RSH TIER II LIMITED PARTNERSHIP
WITNESS: By: RSH GP LLC, its General Partner
By: (Seal)
- -------------------- -----------------------
Ronald S. Haft
Manager and Sole Member
2
52
EXHIBIT D
CONTRIBUTION AND SUBORDINATION AGREEMENT
THIS CONTRIBUTION AND SUBORDINATION AGREEMENT (this "Agreement"), dated
__________ __, 1997, is made by and among, Dart Group Corporation, A Delaware
corporation ("Dart"), HHH/RSH Tier II Limited Partnership, a Maryland limited
partnership (the "Retained Partnership"), Ronald S. Haft (RSH"), Herbert H.
Haft ("HHH"), the Releasing Guarantors listed on Schedule 1 hereto and the
Released Guarantors listed on Schedule 2 hereto.
Recitals
A. It is contemplated that Dart may make a $10 million loan (the "RSH/HHH
Loan") pursuant to the RSH/HHH Loan Agreement (as such term is defined
in the Settlement Agreement dated as of August 18, 1997, among Dart,
certain Affiliates of Dart, Robert M. Haft, Gloria G. Haft and Linda G.
Haft (the "Settlement Agreement")), repayment of which would be secured
in party by, among other things, all of HHH and RSH's rights, title and
interest in and to the Collateral (as defined in Section 2(a) of this
Agreement) and the Retained Partnership.
B. All of the parties to this Agreement, except Dart and the Retained
Partnership, are parties to an Indemnification Agreement, dated as of
July 31, 1994 (the "Indemnification Agreement"), under which HHH and
RSH agreed to indemnify Robert M. Haft ("RMH"), Gloria G. Haft ("GGH")
and Linda G. Haft ("LGH") and collectively "RGH") with respect to,
among other things, "all claims . . . made or incurred by, or asserted
against, any of [RGL]" in connection with all liabilities or
obligations that RMH, LGH or GGH may have in connection with "all
partnership, corporate and individually held interest of the Haft
Family in that collection of entities, through which the Haft Family
owns, operates or manages their privately held warehouses (the
"Combined Entities") . . . ." The Combined Entities, which include
guaranteed these indemnification obligations of HHH and RSH to RGL.
Each of the Combined Entities has certain rights to seek contribution
from the other Combined Entities in the event that it pays more than
its share of any of the guaranteed indemnification obligations.
C. If Dart makes the RSH/HHH Loan, the Retained Partnership, pursuant to
the terms and provisions of that certain Retained Partnership Guaranty,
will become a Guarantor under the Indemnification Agreement.
D. Dart is unwilling to make the RSH/HHH Loan unless the Releasing
Guarantors (1) release all rights of contribution they may have against
the Released Guarantors, and (2) subordinate any claims they now have,
or may hereafter have in the Collateral to the claims of Dart.
53
Agreements
NOW THEREAFTER, to induce Dart to enter into the RGL Settlement
Agreement, to enter into the RSH/HHH Loan Agreement and to make the loans
contemplated thereunder, the parties hereto hereby agree as follows:
1. Release of Released Guarantors. Each of the Releasing
guarantors irrevocably and unconditionally hereby releases each of the Released
Guarantors from any and all manner of claims, demands, damages, actions, causes
of action, contracts, agreements, charges, sums of money, claims for attorney's
fees and lawsuits of every kind and description whatsoever, in law or equity,
whether known or unknown, for contribution, or otherwise (a "Claim") under, or
in connection with, the Indemnification Agreement, that certain Settlement
Agreement dated as of August __, 1997 between RSH and HHH, and any other
agreements pursuant to which any of the Released Guarantors are jointly,
severally, or jointly and severally liable in any respect to HHH, RSH, RMH,
GGH, LGH or any entity directly or indirectly controlled by one or more of such
persons.
2. Subordination of Claims.
(a) Subordination of Claims. Any Claim, however arising,
which any Releasing Guarantor may now or hereafter have in or against or with
respect to any of the Collateral shall be subject, junior and subordinate to
any Claim that Dart or any affiliate of Dart now or hereafter has against the
Guarantors for, or with respect to any Collateral for, the obligations owing to
Dart under the RSH/HHH Loan and to any unsecured Claim or Dart or any affiliate
of Dart against any Guarantor or the Retained Partnership to the extent that
Dart or such affiliate has any secured or unsecured Claims arising in
connection with or relating to the RSH/HHH Loan. The term "Collateral" shall
mean: (i) all general and limited partnership interest or shares in Combined
Property/Forbes Limited Partnership, CP/Forbes Boulevard, Inc.,
Haft/Equities-Sully Plaza Limited Partnership, Combined Property/Ontario
Limited Partnership and 3301 Pennsy Drive Associates Limited Partnership
(collectively, the "Collateral Entities"); and (ii) all property of and
interests in the property of the Collateral Entities and of the Retained
Partnership, whenever acquired and wherever located, that is collateral
security for the indebtedness to Dart arising under the RSH/HHH Loan,
including, without limitation, any direct or indirect interests in the Rolling
Valley, Maryland City and Sully shopping centers and the 4600 Forbes Boulevard
office building (but excluding any other property or interest of RSH, HHH or of
the Releasing guarantors that may hereafter be acquired by any of the
Collateral Entities or the Retained Partnership, if and to the extent such
acquisition was for less than fair value.
(b) Extent of Subordination. The subordinations and
priorities specified herein are applicable irrespective of the time, manner or
order of attachment or perfection of any security interest in the Collateral,
or the time or order of filing of any financing statements, or the giving or
failure to give notice of the acquisition or expected acquisition of any
purchase money security interest or other security interest. Such
subordinations and priorities shall remain effective notwithstanding the
amendment or modification of the documents governing the FSH/HHH Loan or
governing the grant of any security interest in the Collateral to secure
2
54
repayment of the indebtedness arising under the RSH/HHH Loan or the
commencement of a case by or against either Dart of any obligor under the
RSH/HHH Loan under Title 11 of the United States Code or any similar insolvency
or moratorium laws; except that such subordination shall not be effective to
the extent that Dart hereafter increases the principal amount owing under the
RSH/HHH Loan or extends the maturity date thereof.
(c) Standstill. Until all of the obligations owed to
Dart, or any affiliate of Dart, under the HHH/RSH Loan have been paid in full,
no Releasing Guarantor shall accept any payment from the Retained Partnership
or any entity constituting (or the partnership interest in which, or capital
stock of which, constitute) a part of the Collateral. Each Releasing Guarantor
agrees to refrain from taking any action against the Collateral unless it shall
have obtained Dart's prior written consent or Dart shall have been repaid in
full for all amounts owing under the RSH/HHH Loan. No Releasing Guarantor
shall obtain or take any action to obtain any judgment under which it could
attach or seize any of the Collateral in any way until Dart shall have been
repaid in full for all amounts owing under the RSH/HHH Loan. If, prior to the
repayment in full of the RSH/HHH Loan, an RGH Release Party has been granted or
otherwise obtains possession of Collateral then, in addition to any obligations
or remedies imposed or provided under the Uniform Commercial Code (the "UCC")
or other applicable law, the RGL Release Parties shall hold such Collateral,
any right, title or interest therein and any proceeds thereof in trust for the
Dart Companies (the "Trust Property"), and turn over such Trust Property to the
Dart Companies as soon as practicable.
(d) Rights on Default. Each Releasing Guarantor
acknowledges that Dart has and is entitled to exercise all of the rights and
remedies of a secured creditor under the UCC with respect to the Collateral,
including, without limitation, the right to take possession of and dispose of
the Collateral after an event of default, and to accept the Collateral as
discharge of the obligations under the RSH/HHH Loan to the extent permitted
under the UCC. If Dart were to elect to sell the Collateral in a public or
private sale, conducted in accordance with the UCC, any purchaser of all or any
part of the Collateral shall take such Collateral free and clear of all rights
and interests of any of the Releasing Guarantors (including, without
limitation, any rights or interests of any of the RGL Releasing Guarantors in
the property or assets of any of the Collateral Partnerships(, and the
Releasing Guarantors shall have such rights and interests in and to the
proceeds of any such sale, after payment in full of all obligations owed to
Dart or any affiliate of Dart under the HHH/RSH Loan, as may be provided under
the UCC.
3. No Challenge to Dart Company Rights in the Collateral.
No Releasing Guarantor shall challenge the attachment, validity,
perfection, priority or extent of any Claim of Dart or any affiliate of Dart in
the Collateral or with respect to the Retained Partnership in any judicial,
administrative or alternative dispute resolution proceeding.
4. Waivers.
No delay on the part of a party hereto in exercising any right, power
or privilege granted hereunder shall operate as a waiver thereof, and no
purported waiver of any default, breach or violation of any term or provision
contained herein shall be deemed to be a waiver of such term
3
55
or provision unless the waiver is in writing and signed by the waiving party.
No such waiver shall in any event be deemed a waiver of any subsequent or other
default, breach or violation. The rights or remedies herein expressly
specified are cumulative and not exclusive of any other rights and remedies
which the parties would otherwise have.
5. Severability; Enforceability.
In case any provision of this Agreement shall be held to be illegal,
invalid or unenforceable under present or future laws effective while this
Agreement remains in effect, the legality, validity and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
6. Governing Law.
This Agreement will be governed by and construed in accordance with the
laws of the Commonwealth of Virginia, without regard to its principles
concerning conflicts of law, and any actions under this Agreement may be
brought in the courts of the Commonwealth of Virginia or the United States
District Court for the Eastern District of Virginia.
7. Different Facts.
Each Releasing guarantor specifically acknowledges that the facts with
respect to which this Agreement is executed may turn out to be other than or
different from the facts now known to or believed by it to be true, and that it
therefore expressly assumes the risk of the facts turning out to be different
and agrees that this Agreement shall be in all respects effective and not
subject to termination or rescission by reason of any different facts.
8. Notices.
Notices given in connection with this Agreement shall be in writing and
be deemed to have been given when actually received by telecopy or otherwise or
five (5) days after being deposited in the United States mail, postage prepaid,
addressed to a party hereto at the address set forth below such party's
signature to this Agreement, or to such other address designated by such party
by notice to each other party.
9. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
10. Additional Parties.
HHH agrees that on and after the date hereof he shall cause any
entities that he now or hereafter controls, directly or indirectly, which
entities are or become indemnitors/guarantors
4
56
under the Indemnification Agreement to become parties hereto and to execute and
deliver to Dart, the Retained Partnership and RSH a counterpart hereof.
RSH agrees that on and after the date hereof, he shall cause any
entities that he now or hereafter controls, directly or indirectly, which
entities are or become indemnitors/guarantors under the Indemnification
Agreement to become parties hereto and to execute and deliver to Dart, the
Retained Partnership and HHH a counterpart hereof.
11. Amendments.
This Agreement may be amended only by a writing signed by duly
authorized representatives of all parties hereto.
In WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
DART GROUP CORPORATION
By:
--------------------------------
Name:
Title:
Address:
----------------------------
----------------------------
----------------------------
COMBINED PROPERTIES/ONTARIO HAFT EQUITIES-BLADEN LIMITED
LIMITED PARTNERSHIP PARTNERSHIP
By: CP Holdings CA, Inc., General By: CP Holdings MD, Inc., General
Partner Partner
By: By:
--------------------------- ---------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
--------------------------- ---------------------------
--------------------------- ---------------------------
--------------------------- ---------------------------
5
57
3301 PENNSY DRIVE ASSOCIATES LEE AND HARRISON PARTNERSHIP
LIMITED PARTNERSHIP
By: CP Holdings MD, Inc., General By: CP Holdings MD, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
HAFT/EQUITIES SULLY PLAZA LIMITED PARTNERSHIP ROCK CREEK VILLAGE ASSOCIATES LIMITED
PARTNERSHIP
By: CP Holdings VA, Inc., General By: CP Holdings MD, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
COMBINED PROPERTIES/FORBES BOULEVARD LIMITED HAFT EQUITIES-ROSE HILL LIMITED PARTNERSHIP
PARTNERSHIP
By: CP/Forbes Boulevard, Inc., General By: CP Holdings VA, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
6
58
CP/FORBES BOULEVARD INC.
By:
---------------------------
Ronald S. Haft, President
Address:
----------------------------------
----------------------------------
----------------------------------
COMBINED PROPERTIES/RESEDA 1751 COLUMBIA ROAD LIMITED PARTNERSHIP
ASSOCIATES LIMITED PARTNERSHIP
By: CP Holdings CA, Inc., General By: CP Holdings VA, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
COMBINED PROPERTIES/MONTEBELLO LIMITED CHARLES COUNTY ASSOCIATES LIMITED PARTNERSHIP
PARTNERSHIP
By: CP Holdings CA, Inc., General By: CP Holdings MD, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
7
59
PENN-DAW ASSOCIATES LIMITED PARTNERSHIP
By: CP Holdings VA, Inc., General
Partner
By:
-----------------------------
Ronald S. Haft, President
Address:
---------------------------------
---------------------------------
---------------------------------
COMBINED PROPERTIES/SILVER HILL LIMITED ARROW LEASE ACQUISITION LIMITED PARTNERSHIP
PARTNERSHIP
By: CP Holdings MD, Inc., General By: CP Holdings MD, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
COMBINED PROPERTIES/40 WEST LIMITED PARTNERSHIP CP ACQUISITION LIMITED PARTNERSHIP
By: CP Holdings MD, Inc., General By: CP Holdings MD, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
8
60
COMBINED PROPERTIES/GREENWAY CENTER LIMITED CP/GREENBRIAR RETAIL INVESTMENTS LIMITED
PARTNERSHIP PARTNERSHIP
By: CP Holdings MD, Inc., General By: CP Greenbriar Retail, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
COMBINED PROPERTIES/BRIGGS CM/CP GREENBRIAR OFFICE INVESTMENTS LIMITED
CHANEY PLAZA LIMITED PARTNERSHIP PARTNERSHIP
By: CP Holdings MD, Inc., General By: CP/Greenbriar Office, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
COMBINED PROPERTIES VIRGINIA PLAZA LIMITED SUGARLAND PLAZA LIMITED PARTNERSHIP
PARTNERSHIP
By: CP Holdings VA, Inc., General By: Sugarland Plaza, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
9
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COMBINED PROPERTIES/BULL RUN LIMITED CAPITAL RESOURCES LIMITED PARTNERSHIP
PARTNERSHIP
By: Bull Run, Inc., General By: Capital Resources I Corp., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
CP ACQUISITION II LIMITED PARTNERSHIP COMBINED PROPERTIES LIMITED PARTNERSHIP
By: CPALP, Inc., General By: CP Holdings MD, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
MCLEAN CHAIN BRIDGE LIMITED PARTNERSHIP RETAIL LEASE ACQUISITION LIMITED PARTNERSHIP
By: CP Holdings VA, Inc., General By: CP Holdings MD, Inc., General
Partner Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
10
62
TRAK CHICAGO LIMITED PARTNERSHIP I COMBINED PROPERTIES INCORPORATED
By: CP Holdings MD, Inc., General
Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
HAFT EQUITIES GENERAL LIMITED PARTNERSHIP CP/GREENBRIAR OFFICES, INC.
By: CP Holdings MD, Inc., General
Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
SEVENTY-FIFTH AVENUE LIMITED PARTNERSHIP CP/GREENBRIAR RETAIL, INC.
By: CP Holdings MD, Inc., General
Partner
By: By:
--------------------------- -----------------------------
Ronald S. Haft, President Ronald S. Haft, President
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
11
63
RSH/HHH TIER II LIMITED PARTNERSHIP CPALP, INC.
By: By:
--------------------------- -----------------------------
, President Ronald S. Haft, President
---------------
Address: Address:
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
BULL RUN, INC.
By:
---------------------------
Ronald S. Haft, President
12
64
The undersigned, Herbert H. Haft, hereby agrees to be bound by the
terms of this Agreement personally and in his capacity as an officer and
general partner of the Combined Entities to the extent that the undersigned is
an officer or general partner of any of the Combined Entities.
--------------------------------
Herbert H. Haft
The undersigned, Ronald S. Haft, hereby agrees to be bound by the terms
of this Agreement personally and in his capacity as an officer and general
partner of the Combined Entities to the extent that the undersigned is an
officer or general partner of any of the Combined Entities.
--------------------------------
Ronald S. Haft
13