Exhibit 10.1
PURCHASE AND SALE AGREEMENT
THIS
PURCHASE AND SALE AGREEMENT (this “ Agreement ”)
is made and entered into as of July 9, 2008, by and between
Wolstein Business Enterprises, L.P., an Ohio limited partnership
(“ Seller ”), and Developers Diversified Realty
Corporation, an Ohio corporation (“ Buyer
”).
RECITALS
A.
Seller is currently the owner of a 25.2525% membership interest
(the “ Membership Interest ”) in RO & SW
Realty LLC, a Delaware limited liability company (the “
Company ”).
B.
Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, the Membership Interest.
AGREEMENT
NOW
THEREFORE, in consideration of the foregoing, the mutual
representations contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1: SALE AND PURCHASE OF THE MEMBERSHIP
INTEREST
1.1
Sale and Purchase . Subject to the terms and conditions set
forth herein, concurrently with the execution of this Agreement,
Seller is selling to Buyer, and Buyer is purchasing from Seller,
the Membership Interest, free and clear of any mortgage, pledge,
hypothecation, rights of others, claim, security interest,
encumbrance, title defect, title retention agreement, voting trust
agreement, interest, option, lien, charge or similar restrictions
or limitations, including, without limitation, any restriction on
the right to vote, sell or otherwise dispose of the Membership
Interest (collectively, “ Liens ”), except for
any limitations imposed by the Securities Act of 1933 (the “
Act ”) or any state “blue sky” or
securities laws (“ Blue Sky Laws ”), in
consideration for an aggregate purchase price of $10,000,000 (the
“ Purchase Price ”), paid by Buyer to
Seller.
1.2
Deliveries . Concurrently with the execution of this
Agreement:
(a)
Seller is delivering to Buyer (i) the Assignment of Limited
Liability Company Interest, in the form attached hereto as
Exhibit A , duly executed by Seller and Ronald
J. Oehl, in his capacity as President of TLM Realty Corp., which is
the manager of TLM Property Investments, LLC, which is the manager
of the Company (the “Manager”), to evidence the
Manager’s acknowledgment of the transactions contemplated by
the Assignment of Limited Liability Company Interest and its
consent to the admission of Buyer as a substituted Member of the
Company pursuant to Section 8.03 of the Operating Agreement of
the Company, (ii) the promissory note made by Albert T. Adams,
as Trustee of the S.A.W. Trust under agreement dated
December 18, 2002 (the “ SAW Trust ”),
dated November 1, 2007, to Scott A. Wolstein, and later
assumed by Seller as payor, marked “cancelled” by Scott
A. Wolstein, and (iii) any other documents
that are
necessary to transfer to Buyer good and valid title to the
Membership Interest, free and clear of Liens.
(b)
Buyer is delivering to Seller (i) the Assignment of Limited
Liability Company Interest, in the form attached hereto as
Exhibit A , duly executed by Buyer, and (ii) the
Purchase Price, in immediately available funds.
ARTICLE 2: REPRESENTATIONS AND
WARRANTIES OF SELLER
Seller
represents and warrants to Buyer as follows:
2.1
Title . Seller has good and marketable title to the
Membership Interest, free and clear of all Liens. Upon the
consummation of the transactions contemplated by this Agreement,
Buyer is acquiring good and valid title to the Membership Interest,
free and clear of all Liens.
2.2
Consent and Release under Pledge Agreement . Seller has
received from Scott A. Wolstein, in his capacity as pledgee under
that certain Pledge Agreement, dated November 1, 2007, between
the SAW Trust and Scott A. Wolstein, and later assumed by Seller as
pledgor, an effective release of all of pledgee’s rights and
interests under such Pledge Agreement.
2.3
Consent of Jillian Marcy Kimmelsman Wolstein . Seller has
received from Jillian Marcy Kimmelsman Wolstein (“
Jillian ”) effective written consent to Buyer’s
discharge of the Note in connection with the transactions
contemplated hereby.
2.4
Validity and Enforceability . Seller has the requisite power
and authority to execute, deliver and perform Seller’s
obligations under this Agreement and the Assignment of Limited
Liability Company Interest. This Agreement and the Assignment of
Limited Liability Company Interest have been duly executed and
delivered by Seller and, assuming due authorization, execution and
delivery by Buyer, represent the legal, valid and binding
obligations of Seller, enforceable against Seller in accordance
with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, fraudulent conveyance and
other similar laws and principles of equity affecting
creditors’ rights and remedies generally.
2.5
No Conflict . The execution and delivery by Seller of this
Agreement and the Assignment of Limited Liability Company Interest
and the performance by Seller of Seller’s obligations
hereunder and thereunder will not violate (i) any provision of
any applicable law or regulation applicable to it or (ii) any
provision of any agreement or other instrument to which the Company
or Seller or the Company’s or Seller’s respective
properties or assets are bound, or conflict with, result in a
breach of or constitute (with due notice or lapse of time or both)
a default under any such agreement or other instrument, or result
in the creation or imposition of any lien or other encumbrance of
any nature whatsoever upon any of the Company’s or
Seller’s respective properties or assets. The execution and
delivery by Seller of this Agreement and the Assignment of Limited
Liability Company Interest and Seller’s performance of its
obligations hereunder and thereunder have been duly authorized and
will not violate any term or undertaking of the partnership
agreements or other agreements relating to the Company or
Seller.
2
ARTICLE 3: REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer
hereby represents and warrants to Seller as follows:
3.1
Validity and Enforceability . Buyer has requisite power and
authority to execute, deliver and perform Buyer’s obligations
under this Agreement and the Assignment of Limited Liability
Company Interest. This Agreement and the Assignment of Limited
Liability Company Interest have been duly executed and delivered by
Buyer and, assuming due authorization, execution and delivery by
Seller, represent the legal, valid and binding obligations of
Buyer, enforceable against Buyer in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation, fraudulent conveyance and other similar
laws and principles of equity affecting creditors’ rights and
remedies generally.
3.2
No Conflict . Buyer represents that Buyer’s purchase
of the Membership Interest and the execution and delivery by it of
this Agreement and the Assignment of Limited Liability Company
Interest and the perfor
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