# Appendix — Holywell Corp. v. Smith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2032%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 488 U.S. 850 ## Text Supreme Court, U.S. Sis ‘JOSEPH F. SPANIOL, JR. in the He CLERK Supreme Court of the United States of America OCTOBER TERM, 1987 HOLYWELL CORPORATION and THEODORE B. GOULD, Petitioners, vs. FRED STANTON SMITH, Trustee of the Miami Center Liquidating Trust, and THE BANK OF NEW YORK, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit APPENDIX OF RESPONDENT, THE BANK OF NEW YORK Vance E. Salter, Esq. COLL DAVIDSON CARTER SMITH SALTER & BARKETT, P.A. 3260 Miami Center 100 Chopin Plaza Miami, Florida 33131 (305) 373-5200 Of Counsel: Thomas F. Noone, Esq. S. Harvey Ziegler, Esq. EMMET MARVIN & MARTIN KIRKPATRICK & LOCKHART 48 Wall Street 2000 Miami Center New York, New York 10005 100 Chopin Plaza (212) 422-2974 Miami, Florida 33131 (305) 374-8112 [Counsel of Record] App. A App. B App. C App. D App. E INDEX TO APPENDIX The Bank of New York v. Gould, Adv. No. 85-0160-BKC-TCB-A (Judgment Determining Amount, Validity, and Extent of Liens of The Bank of New York) In re Holywell Corp., Bktcy. Ct. Case Nos. 84-01590-BKC-TCB through 84-01594-BKC-TCB, Motion to Require Theodore B. Gould and/or Holywell Corporation to Cause all Funds Received by Related Entities in Connection With the Sale of Certain Real Property Pursuant to a Purchase Agreement Dated as of July 26, 1984, as Amended to be Deposited into a Segregated Account In re Holywell Corp., Bktcy. Ct. Case Nos. 84-01590-BKC-TCB through 84-01594-BKC-TCB, Emergency Motion to Treat Proceeds of the Sale of Certain Real and Personal Property as Cash Collateral, to Segregate and Account for Cash Collateral In re Holywell Corp., Bktcy. Ct. Case Nos. 84-01590-BKC-TCB through 84-01594-BKC-TCB, Response to Emergency Motion for Clarification and Motion for Order Directed to Theodore B. Gould to Show Cause Why He Should Not Be Cited for Civil Contempt (Exhibit 1 included, all other exhibits not referenced) In re Holywell Corp., Bktcy. Ct. Case Nos. 84-01590-BKC-TCB through 84-01594-BKC-TCB, Motion for Order Approving and Authorizing Holywell Corporation and Theodore B. Gould to Consummate the Sale of Certain Real and Personal Property (Exhibits not included) App App. App. App. App. App. App. App. INDEX TO APPENDIX—(Continued) .F In re Holywell Corp., Bktcy. Ct. Case No. 84-01590-BKC-TCB Amended Disclosure Statement In re Holywell Corp., Bktcy. Ct. Case Nos. 84-01590-BKC-TCB through 84-01594-BKC-TCB, Amended Consolidated Disclosure Statement and Plan of Reorganization of Holywell Corporation, Miami Center Limited Partnership, Chopin Associates, Miami Center Corporation and Theodore B. Gould Proposed by The Bank of New York In re Holywell Corp., Bktcy. Ct. Case Nos. 84-01590-BKC-TCB through 84-01594-BKC-TCB, Amended Consolidated Plan of Reorganization Proposed by The Bank of New York In re Holywell Corp., Bktcy. Ct. Case No. 84-01590-BKC-TCB Holywell Corporation’s Report on Amounts to be Deposited Before Confirmation Olympia & York Florida Equity Corp. v. The Bank of New York, Case No. 8&-3230-CIV- ATKINS (S.D. Fla. March 24, 1987) Holywell Corp. v. The Bank of New York, Case No. 86-0848-CIV-RYSKAMP, Answer Brief of Appellee, The Bank of New York Excerpts from Rule 2004 Examination of Theodore B. Gould Holywell Corp. v. The Bank of New York, Case No. 85-3225-CIV-ATKINS, Order of Remand and Denial of Motion to Dismiss (S.D. Fla. December 30, 1985) INDEX TO APPENDIX—(Continued) App. N In re Holywell Corp., Bktcy. Ct. Case Nos. App. O App. P 84-01590-BKC-TCB through 84-01594-BKC-TCB, Liquidating Trustee’s First Report in Conjunction with Consummation of Confirmed Plan of Reorganization In re Holywell Corp., Bktcy. Ct. Case Nos. 84-01590-BKC-TCB through 84-01594-BKC-TCB, Order on Remand (S.D. Fla. January 29, 1986) In re Holywell Corp., Bktcy. Ct. Case No. 84-01594-BKC-TCB, Schedule A—Statement of All Liabilities of Debtor APPENDIX A UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA CHAPTER 11 CASE NOS. 84-01590-BKC-TCB 84-01591-BKC-TCB 84-01592-BKC-TCB 84-01593-BKC-TCB 84-01594-BKC-TCB ADV. NO. 85-0160-BKC-TCB-A IN RE: HOLYWELL CORPORATION, et al., Debtors. THE BANK OF NEW YORK, a New York banking corporation, Plaintiff, vs. THEODORE B. GOULD, individually, as partner of CHOPIN ASSOCIATES, a Florida general partnership, and as a general partner of MIAMI CENTER LIMITED PARTNERSHIP, a Florida limited partnership; MIAMI CENTER CORPORATION, a Florida corporation, as partner of CHOPIN ASSOCIATES, and as general partner of MIAMI CENTER LIMITED PARTNERSHIP; and HOLYWELL CORPORATION, a Delaware corporation, Defendants. App. A-1 JUDGMENT DETERMINING AMOUNT, VALIDITY, AND EXTENT OF LIENS OF THE BANK OF NEW YORK THIS CAUSE came to be heard on March 14, 1985 upon the Complaint of The Bank of New York (the “Bank”’) to determine the amount, validity, and extent of the Bank’s mortgage liens. Having reviewed the pleadings and heard argument of counsel, it is hereby ORDERED and ADJUDGED that: 1. This Court has jurisdiction to hear and determine this cause pursuant to 28 U.S.C. $§157(BX2XK) and 1334, and has jurisdiction over the parties. 2. The Bank is a New York banking corporation located in New York, New York, and is a secured creditor of the Debtors as set forth in Proofs of Claim filed on December 20, 1984 in case numbers 84-01590-BKC-TCB, 84-01591-BKC- TCB, 84-01592-BKC-TCB, 84-01593-BKC-TCB and 84-01594-BKC-TCB. 3. Defendants, Theodore B. Gould (“Gould”) and Miami Center Corporation, a Florida corporation (“MCC”), are the sole partners of defendant Chopin Associates, a Florida general partnership (“Chopin’’) and are the sole general partners of defendant Miami Center Limited Partnership, a Florida limited partnership (“MCLP”’). 4. Defendant, Holywell Corporation (“Holywell”), is a Delaware corporation with its principal place of business in Arlington, Virginia. 5. Gould, MCC, Chopin, MCLP and Holywell are the Debtors in the above-styled proceedings, having filed voluntary petitions in this Court under Chanter 11 of the Bankruptcy Code on August 22, 1984. 6. Chopin is the fee owner and MCLP is the ground lessee and the owner of all improvements and personal property on the real estate located in Miami, Dade County, App. A-2 Florida (“Miami Center Phase I’’), as described in the loan documents attached to the Bank’s Complaint in this action. 7. The due execution, delivery, recording, and authenticity of the notes, mortgages, and other loan documents is not in dispute. 8. The Bank advanced to the Debtors under the terms of the notes and mortgages the sum of $196,711,481.58, all of which is secured by the mortgages. 9. The Bank notified the Debtors by letter that the loans were in default at all times after January 31, 1984. 10. Accrued interest on the loans, determined by the Bank at the “contract” (good standing) rate, to March 14, 1985 is $33,103,184.24, and is secured by the Bank’s mortgages. Based on a Prime Rate of 10.5% per annum, interest will accrue at $64,171.66 per day from March 14, 1985. Any change in the prime rate (whether up or down) will affect that daily interest figure. 11. Additional accrued interest on the loans, determined by the Bank, commenced February 1, 1984. That additional default interest of $4,528,077.11 is payable to March 14, 1985, and is secured by the loan documents. Based on a prime rate of 10.5% such default interest will accrue in the additional amount of $11,148.50 per day under the loan documents for each day from March 14, 1985 (for a total daily sum of $75,320.16). Any change in the prime rate (whether up or down) will affect that daily interest figure. 12. The Bank claims additional amounts under the liens of the mortgages for pre-petition legal and loan expenses, totalling $831,563.72. The Court reserves ruling on whether all or some part of such legal and loan expenses should be added to the mortgage lien. 13. The lien of The Bank of New York in and to the Debtors’ real and personal property identified in the loan documents as against the Debtors is superior to any other App. A-3 claim or interest of the Debtors in and to said real and personal property. 14. This Court will retain jurisdiction to grant such further relief as may be necessary and proper. 15. The Court finds and decides that the total lien of the Bank (including default interest from February 1, 1984) is $234,342,742.93 to March 14, 1985, plus per diem interest from March 14, 1985, at the rate of $75,320.16 per day. 16. This Final Judgment is subject to the Court’s Order, dated March 20, 1985, respecting the scope of the 1983 and 1984 releases executed by the Debtors. DONE and ORDERED in Chambers at Miami, Florida, this 20th day of March, 1985. /s/ Thomas C. Britton UNITED STATES BANKRUPTCY JUDGE cc: S. Harvey Ziegler, Esq. Vance E. Salter, Esq. Fred H. Kent, Jr., Esq. Irving M. Wolff, Esq. App. A-4 APPENDIX B UNIITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA Cases Nos. 84-01590-BKC-TCB 84-01591-BKC-TCB 84-01592-BKC-TCB 84-01593-BKC-TCB 84-01594-BKC-TCB Proceedings in Chapter 11 IN RE: HOLYWELL CORPORATION, et al. Debtors. MOTION TO REQUIRE THEODORE B. GOULD AND/OR HOLYWELL CORPORATION TO CAUSE ALL FUNDS RECEIVED BY RELATED ENTITIES IN CONNECTION WITH THE SALE OF CERTAIN REAL PROPERTY PURSUANT TO A PURCHASE AGREEMENT DATED AS OF JULY 26, 1984, AS AMENDED TO BE DEPOSITED INTO A SEGREGATED ACCOUNT THE BANK OF NEW YORK (“BNY’”’) a secured creditor respectfully moves this Court for an order directing Theodore B. Gould (“Gould”) and/or Holywell Corporation (““Holywell’’) to cause all funds payable to related entities in connection with the sale of certain improved real property (the “Washington Properties”) pursuant to a Purchase Agreement dated as of July 26, 1984, as amended on August 28, 1984, between Hadid Investment Group, Inc., as purchaser and Twin Development Corporation, 1300 North 17th Street Associates, 1616 Reminc Limited Partnership, Eleven Dupont Circle Associates and Dupont Land Associates as sellers (the “Purchase Agreement’’) to be deposited into a segregated account to be held subject to further order of this Court and as grounds therefor states: App. B-1 1. The Bank of New York (“BNY”), a construction lender, from time to time since March 27, 1980 has made loans to Miami Center Limited Partnership (“MCLP’’) and Chopin Associates (“Chopin”) in connection with the construction of the Miami Center Phase 1 project (““Phase 1”). The loan agreements entered into in March 1980 contemplated $112,500,000 in loans to finance land acquisition and construction of Phase I. Due primarily to delays and hard and soft cost overruns the total costs far exceeded the original estimates and BNY, at the request of MCLP and Chopin, made additional loans. The unpaid principal amount of the indebtedness of Chopin and MCLP amounts including overdraft amounts is $196,227,417.70 and interest is accruing thereon since December 1, 1983. The indebtedness due to BNY is secured, inter alia, by mortgages on Phase 1, by an assignment of all right, title and interest of Gould (or any entity in which Gould has or obtains an interest) to distributions as a general and/or limited partner from the Washington Properties, an assignment of all right, title and interest of Holywell including interests obtained as a result of any assignment or beneficial interest) to distributions as a general and/or limited partner from the sale of the Washington Properties, by a pledge of 100% of the issued and outstanding stock of Holywell, by a pledge of the stock of certain of Holywell’s wholly owned subsidiaries, including without limitation, 100% of the issued and outstanding stock of Twin Development Corp. (“Twin”), 100% of the issued and outstanding stock of Orion Industries, Inc., 100% of the issued and outstanding stock of HWL Corporation and 100% of the issued and outstanding stock of Parkwell, Inc. 2. On August 22, 1984 Holywell, Gould and the other debtors herein, each filed a petition for reorganization under Chapter 11, Section 301 of the Bankruptcy Code (the “Code”’). The within Chapter 11 cases are being jointly administered pursuant to Order of this court. App. B-2 3. On October 22, 1984 this Court granted the motion of Holywell and Gould as partners and stockholders in Twin Development Corp., 1300 North 17th Street Associates, 1616 Reminic Limited Partnership, 11 Dupont Circle Associates and Dupont Land Associates for an order authorizing and approving the sale of the Washington Properties pursuant to the Purchase Agreement. Paragraph 3 of the Order reads as follows: “Holywell and Gould, be and they hereby are, directed to segregate the share of net proceeds due Holywell and Gould from the sale of the real and personal property approved by this Order and to invest such proceeds in accordance with Section 345 of the Bankruptcy Code and hold same subject to further order of this Court.” 4. BNY has reason to believe that all of the proceeds which may ultimately flow to Gould and/or Holywell as a result of the sale of the Washington Properties may not be segregated and invested as directed by this Court. 5. BNY has been informed by Gould that the net proceeds distributable to Gould and/or Holywell and related entities from the sale of the Washington Properties will be in the area of $30,000,000 to $34,000,000. However, counsel for Gould has advised BNY that only the funds directly payable to Gould and/or Holywell as general and/or limited partners of the partnerships selling the Washington Properties (i.e. approximately $10,000,000 to $14,000,000) are to be deposited in the segregated account. 6. Asubstantial portion of the net proceeds from the sale of the Washington Properties which are not payable to Gould and/or Holywell will be paid to corporations whose stock is wholly owned by Gould or Holywell. 7. Twin a wholly owned subsidiary of Holywell, is the fee owner and ground lessor of the 1300 North 17th Street Property, and is also the owner of a 91.67% general App. B-3 partnership interest in 1300 North 17th Street Associates. (This information is based upon a letter from Gould to BNY dated December 3, 1982 setting forth Gould and Holywell’s direct and indirect ownership interests in the Washington Properties, a copy of which is annexed hereto as Exhibit “A”’). Twin will receive a significant portion of the net proceeds attributable to the 1300 North 17th Street Property. 8. In addition, Exhibit H of the Purchase Agreement indicates that $3,547,000.00 is to be paid to certain entities as compensation for the termination of Management and Service Contracts. The entities tha‘ are to receive payment are Holywell Management Company, a division of Holywell, and Orion Industries, Inc., HWL Corporation and Parkwell, Inc., all of which are wholly owned subsidiaries of Holywell. (attached hereto as Exhibits “B”, “C-1”, “C-2” and “C-3” respectively are copies of Ex. H to the Purchase Agreement and copies of the financial statements of the sellers which set forth the aforementioned Management and Service Contracts). 9. In view of the fact that Holywell owns 100% of the stock of Twin, BNY requests the Court to order Holywell to cause Twin, to deposit in a segregated account, subject to further order of this Court, the proceeds from the sale of the Washington Properties less payment of all unrelated third party creditors. BNY further requests the Court to direct Holywell, as the sole stockholder of Orion Industries, Inc., Parkwell, Inc., HWL Corporation, Holywell Management Company, to cause to be deposited in such segregated account, subject to further order of the Court, any funds payable to Orion Industries, Inc., Parkwell, Inc., HWL Corporation, Holywell Management Company as a result of the “premature cancellation” of the service contracts referred to in Exhibits “B”’, “C-1’, “C-2” and “C-3” attached hereto, or otherwise payable in connection with the sale of the Washington Properties. App. B-4 ‘ace eee, 10. In addition, this Court should direct that any other entities either wholly owned or controlled by Holywell and/or Gould, deposit any net proceeds received in connection with the sale of the Washington Properties into a segregated account. 11. Based upon the circumstances set forth above BNY requests that this Court direct Gould and/or Holywell to furnish the following to BNY and the Official Creditors’ Committees of Gould and Holywell at least 3 days prior to the closing of the sale of the Washington Properties: (i) a copy of the proposed closing statement, (ii) a statement prepared by Touche Ross & Co., the accountants retained by Gould and other debtors herein, setting forth a detailed breakdown of the proposed payments and distributions to be made to Gould, Holywell, Twin Development, Dupont Land Associates, Orion Industries, Inc., HWL Corporation, Parkwell, Inc., Holywell Management Company and any other wholly owned or controlled entities, and (iii) a sworn statement of Gould that neither he, nor any of the other debtors herein, nor any entity in which he or any of the other debtors herein has an interest (whether direct or indirect), has any interest (whether direct or indirect) in any entity receiving any funds set forth in the Touche Ross & Co. statement delivered pursuant to subparagraph (ii) above except as specifically set forth therein. WHEREFORE, BNY respectfully requests that this Court issue an Order granting the relief requested herein, together with such other and further relief this Court deems just and proper. App. B-5 Respectfully submitted, S. Harvey Ziegler, Esquire Meyer, Weiss, Rose, Arkin, Shampanier, Ziegler & Barash 407 Lincoln Road Miami Beach, Florida 33139 Telephone: (305) 538-2531 and STEEL HECTOR & DAVIS 4000 Southeast Financial Center Miami, Florida 33131-2398 Tel: (305) 577-2984 By: /s/ FRANCIS L. CARTER Francis L. Carter Of Counsel: Thomas F. Noone, Esquire Emmet, Marvin & Martin 48 Wall Street New York, New York 10005 Telephone (212) 422-2974 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Motion was mailed this 30th day of November, 1984 to all parties on the attached list. /s/ FRANCIS L. CARTER Francis L. Carter App. B-6 SERVICE LIST Daniel Lampert, Esquire Morgan, Lewis & Bockius 3200 Miami Center 100 Chopin Plaza Miami, Florida 33131 Fred H. Kent, Jr. 850 Edward Ball Building P.O. Box 4700 Jacksonville, Florida 32201 Irving M. Wolff, Esquire Holland & Knight 1200 Brickell Avenue Miami, Florida 33131 William E. Sadowski, Esquire Akerman, Senterfitt & Eidson 405 Brickell Concours 1401 Brickell Avenue Miami, Florida 33131 Barry J. Dichter, Esquire Cadwalader, Wickersham & Taft One Wall Street New York, New York 10005 J. T. Blount, Manager Legal Affairs Florida Power & Light 9250 West Flagler Street Miami, Florida 33152 John W. Kozyak, Esquire Kozyak & Tropin, P.A. 607 New World Tower 100 N. Biscayne Blvd. Miami, Florida 33132 App. B-7 William C. Crenshaw, Esquire Valdes-Fauli, Cobb & Petrey 1401 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131 Steven E. M. Hartz, Esquire Dade Savings Bldg. — 11th Floor 101 E. Flagler St. Miami, Florida 33131 William Lance Gerlin, Esquire Stinson, Lyons & Schuette 1401 Brickell Avenue Ninth Floor Miami, Florida 33131 Howard S. Susskind, Esquire Kaplan, Sicking, Hassen, et al 1951 Northwest 17th Avenue Miami, Florida 33152 Jerry M. Markowitz, Esquire 9400 S. Dadeland Blvd. Suite 100 Miami, Florida 33156 Allan M. Elster, Esq. 17971 Biscayne Blvd. Suite 204 North Miami Beach, Florida 33160 Richard Touby, Esquire 2nd Floor East AmeriFirst Federal Building 100 N.E. 1st Avenue Miami, FL 33132 App. B-8 a ford h Keavin D. McDonald, Esquire Bonham, Carrington & Fox 2700 Summit Tower Houston, Texas 77046 David B. Newman, Esquire Fine, Tofel, Saxl, et al. 823 United Nations Plaza New York, New York 10017 Belson, Connolly & Belson 39 Broadway New York, New York 10006 Dolores J. Seiler, Esquire 6701 Sunset Drive, Suite 101-C South Miami, FL 33143 Louis Phillips, Esquire Phillips and Phillips 908 Israel Discount Bank Bldg. 14 N.E. First Avenue Miami, Florida 33132 Courtlandt G. Miller, Esq. Bachner, Tally, Polevoy, et al 380 Madison Avenue New York, New York 10017 David V. Lococo, Esquire Lococo, Klein & Touby 901 N.E. 125th St. Suite C North Miami, FL 33161 Ronald A. Shapo, Esquire Sparber, Shevin, et al 3050 AmeriFirst Bldg. 1 Southeast Third Ave. Miami, Florida 33131 App. B-9 Robert A. Schatzman, Esq. Schatzman & Schatzman 1500 S. Dixie Highway Suite 350 Coral Gables, FL 33146 Sherwood B. Smith, Jr., Esq. Ober, Kaler, Grimes & Shriver 710 Ring Building 1200 18th Street, N.W. Washington, D.C. 20036 Patrick K. Cameron, Esq. 10 Light St. Baltimore, Maryland 21202 Williams & Connolly 839 Seventeenth St., N.W. Washington, D.C. 20006 Main Hurdman & Co. 1050 18th Street N.W. Washington, D.C. 20036 Barton-Aschman 1400 K. Street, N.W. No. 800 Washington, D.C. 20005 Scientific-Atlanta, Inc. Phoenix Cable Division One Technology Parkway Atlanta, Georgia 30348 Ampat/Southern Corp. 601 Nursery Road Linthicum, Maryland 21090 National Micro Products 430 South Lake Blvd. Richmond, Virginia 23236 App. B-10 Bankers Life Company Attn. Joyce Hoffman, Esq. 711 High Street Des Moines, Iowa 50307 American Security Bank 730 15th Street, N.W. Washington, D.C. 20013 Bank of Montreal New York Agency 2 Wall Street New York, NY 10015 Barry J. Isreal, Esq. Stovall, Spradin, et al 1819 H Street, N.W. Washington, D.C. 20006 Albert I. Edelman, Esq. Parker, Chapin, et al 1211 Avenue of the Americas New York, N.Y. 10036 Randall J. Cadenhead, Esq., Southern Bell Tel. & Tel Co. 666 N.W. 79th Ave. #630 Miami, FL 33126 A. Rodger Traynor, Jr., Esq. Fowler, White, et al 501 City National Bank Bldg. 25 West Flagler St. Miami, Florida 33130 App. B-11 EXHIBIT “A” THEODORE B. GOULD 1300 North 17th Street Suite 500 Arlington, VA 22209 (703) 522-3331 December 3, 1982 The Bank of New York 48 Wall Street New York, NY 10015 Attention: Mr. James A. Hamilton Vice President Gentlemen: This letter is to confirm my interest in the following limited partnerships (as used hereinafter, general partner percentages refer to a portion of the general partner share, whereas limited partner percentages refer to a portion of the entire partnership): 1. 1333 New Hampshire Associates (“1333 N.H.A.”) The general partners of 1333 N.H.A.’ are NHA Corporation (“NHA Corp.”) and myself. NHA Corp. holds 85.715% of the general partnership interest in 1333 N.H.A. I am the President of NHA Corp. The shareholders of NHA Corp. and their percentage of ownership are as follows: Holywell Corporation (66%%) Shareholders Unrelated to Myself (833%%) I hold 14.283% of the general partnership interest in 1333 N.H.A. (the beneficial interest in all but one percent of which having been assigned to Holywell Corporation) and a 4% limited partnership interest in 1333 N.H.A. In addition, I am one of eight co-partners in ISIS Investments, a Michigan co-partnership which holds a 1.3636% limited partnership App. B-12 aa interest in 1333 N.H.A. I hold no interest in B.D.M. Company. Corpus Christi Associates holds 14:% limited partnership interest in 1333 N.H.A. My interest in Corpus Christi Associates is one percent (1%), as general partner. One hundred percent of the general partnership interest in 1333 N.H.A. is equivalent to a 60% interest in the entire 1333 New Hampshire Associates. Therefore, my total individual interest in 1333 New Hampshire Associates is 31.698%. 2. 1300 North 17th Street Associates (“1300 N. 17th St.”) The general partners of 1300 N. 17th St. are Twin Development Corporation (“TDC”) and myself. TDC holds 91.67% of the general partnership interest. I am President of TDC. Shareholders of TDC and their percentage ownershin are as follows: Holywell Corporation (100%) I hold 8.33% of the general partnership interest in 1300 N. 17th St. and I hold a 6.336% limited partnership interest in 1300 N. 17th St. Holywell Corp. holds a 13.33% limited partnership interest in 1300 N. 17th St. I am President of Holywell Corp. The shareholders of Holywell Corp. and their percentage ownership are as follows: Theodore B. Gould (80%) Clark Enterprises, Inc. (20%) Atlas Investors holds a 1.333% limited partnership interest in 1300 N. 17th St. Atlas Investors is 80% owned by Corpus Christi Associates, in which I own a 1% general partner interest. I own no interest in Car-Car Investors or in Youn- Paik Investors or in Seebacher-Seim Investors. One hundred percent of the general partnership interest in 1300 N. 17th St. is equivalent to a 60% interest in the entire 1300 North 17th Street Associates. Therefore, my total App. B-13 individual interest in 1300 North 17th Street Associates is 69.342%. 3. 1616 Reminc Limited Partnership (“1616 Reminc’”’) The general partners of 1616 Reminc are Washington Properties, Inc. (““W.P. Inc.”) and myself. W.P. Inc. holds 50% of the general partnership interest in 1616 Reminc. I hold 50% of the general partnership interest in 1616 Reminc (the beneficial interest in all but one percent of which having been assigned to Holywell Corporation). The officers and directors of W.P. Inc. are, to the best of my knowledge, Donald Cook, Andrew Kalman, Thomas Sullivan and Francis Newton, and the shareholders of W.P. Inc. and their percentage ownership are not known to me. Neither I, nor any entity in which I have an interest, are officers, directors or shareholders of W.P. Inc. 1616 Arlington Associates holds a 98.26% limited partnership interest in 1616 Reminc. I hold a 60% of the general partnership interest in 1616 Arlington Associates (the beneficial interest in all but one percent of which having been assigned to Holywell Corporation) and a 1% limited partnership interest in 1616 Arlington Associates. Corpus Christi Associates holds a 2% limited partnership interest in 1616 Arlington Associates. One hundred percent of the general partnership interest in 1616 Arlington Associates is equivalent to a 50% interest in the entire 1616 Arlington Associates. One hundred percent of the general partnership interest in 1616 Reminc is equivalent to an .80% interest in the entire 1616 Reminc Limited Partnership. Therefore, my total individual interest in 1616 Reminc Limited Partnership is 24.648%. 4. Eleven DuPont Circle Associates (“Eleven DuPont’’) The general partners of Eleven DuPont are Henry J. Browne, D.C. Properties, Inc. and myself. Henry J. Browne holds 1% of the general partnership interest in Eleven App. B-14 DuPont. D.C. Properties, Inc. holds 40% of the general partnership interest in Eleven DuPont. The officers and directors of D.C. Properties, Inc. are, to the best of my knowledge, Donald Cook, Andrew Kalman, Thomas Sullivan and Francis Newton, and the shareholders of D.C. Properties, Inc. and their percentage ownership are unknown to me. Neither I, nor any entity in which I own an interest, are officers, directors or shareholders of D.C. Properties, Inc. I hold 59% of the general partnership interest (the beneficial interest in all but one percent of which having been assigned to Holywell Corporation) and a 3.75% limited partnership interest in Eleven DuPont. I hold no interest in CMW Company, Green Turtle Cove Investment Co., or Caldwell- Lott Farms. One hundred percent of the general partnership interest in Eleven DuPont is equivalent to a 50% interest in the entire Eleven DuPont Circle Associates. Therefore, my total individual interest in Eleven DuPont Circle Associates is 27.409%. The purpose of 1333 N.H.A. is to acquire, own, lease, build upon, sell, etc. real property including real property located at 1333 New Hampshire Avenue, Washington, DC and to develop, construct and operate a 12-story office building thereon. The purpose of 1300 N. 17th St. is to acquire, own, sell, etc. real property located at 1300 N. 17th Street, Rosslyn, VA and develop, construct and operate a 24-story office building including a 5-level parking garage thereon. The purpose of 1616 Reminc is to acquire an interest in land on Fort Myer Drive and Fairfax Drive, Arlington County, VA and to construct and operate an office building thereon. App. B-15 The purpose of Eleven DuPont is to develop, construct, operate and sell an office building, improvements and land located at 11 DuPont Circle, Washington, DC. Very truly yours, /s) THEODORE B. GOULD Theodore B. Gould sgc App. B-16 one a al EXHIBIT ‘‘B”’ ALLOCATION OF PURCHASE PRICE Amount “Washington Property”. (a) Fee Interest in Improvements and Leasehold Estate; and (b) Fee Interest in Land and Lessor’s Interest in Ground Lease.................2.05- 23,000,000 “1616 Property”, (a) Fee Interest in Improvements and Leasehold Estate and (b) Fee Interest in Land and Lessor’s Interest in Ground Lease..............0s00005 30,000,000 “Twin Property”, Fee Interest in Improvements and IEE 4 UES 6 bine kkk 64-00 Sed OC resents eas 47,000,000 “Twin Property”, Fee Interest in Land and Lessor’s RS PRTSTTRT LTTE TEC Lee 6,213,000 Value of Contractors’ Interest in Management and Service Contracts which Sellers are Required to Prematurely Scan na beeen tb csn clk bdaccéadts bee utes’ ¢edres ud 3,547,000 I ac ko celg bccn tes eaedeeeeee beet 2,240,000 TOTAL: 112,000,000 App. B-17 EXHIBIT “‘C-1” ELEVEN DUPONT CIRCLE ASSOCIATE A LIMITED PARTNERSHIP NOTES TO FINANCIAL STATEMENTS YEARS ENDED DECEMBER 31, 1983 AND 1982 A. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: The Partnership is a limited partnership which owns and operates a nine-story, 145,000 square foot office building in the District of Columbia. The financial statements of the Partnership are prepared on the accrual basis of accounting and include only those assets, liabilities, and results of operations which relate to the business of the Partnership. Depreciation is computed using accelerated methods for building and components and the straight-line method for tenant improvements and equipment based on estimated useful lives of 40 years for the building and components and three to ten years for tenant improvements and equipment. Mortgage placement costs and other deferred costs are amortized over the appropriate loan period and lease term on a straight-line basis. B. INVESTMENT IN OFFICE BUILDING, AT COST: December 31, 1983 1982 Building and equipment $5,156,801 $5,156,801 Tenant improvements 1,838,417 1,837,260 6,995,218 6,994,061 Less accumulated depreciation 3,013,355 2,686,049 $3,981,863 $4,308,012 App. B-18 C. RELATED-PARTY TRANSACTIONS: Service Contracts Holywell Corporation and its subsidiaries, which are wholly owned by Theodore B. Gould, a general partner, provide a variety of services for the Partnership. Holywell Management Company, a division of Holywell Corporation, provides management and marketing services for the Partnership under two separate agreements that extend through December 31, 1983. Management and marketing fees for 1983 were $58,063 and $55,566 and in 1982 were $57,124 and $52,920, respectively. Orion Industries, Inc., a wholly owned subsidiary of Holywell Corporation, provides janitorial, engineering, and security services for the Partnership. The contracts for janitorial, engineering, and security services are for five years and expire December 31, 1988. Fees related to these service agreements are as follows: 1983 1982 Janitorial services $113,832 $98,949 Engineering services 77,172 58,800 Security services 116,804 92,359 Notes Receivable The Partnership had notes and interest receivable from Holywell Corporation and two of Holywell’s wholly owned subsidiaries, HWL Corporation and Charleston Center Corporation, at December 31, 1982. Also, at that date, a note was due from 1300 North 17th Street Associates, a limited partnership, of which Theodore B. Gould is a general partner. These notes were repaid in full during 1983. App. B-19 ACCRUED PRINCIPAL INTEREST TOTAL December 31, December 31, December 31, Name 1982 1982 1982 Holywell Corporation $ 799,600 $289,816 $1,089,416 HWL Corporation 30,000 16,056 46,056 Charleston Center Corporation 55,000 5,101 60,101 1300 North 17th Street Associates 148,000 13,408 161,408 $1,032,600 $324,381 $1,356,981 Note Payable The note payable to related party represents funds loaned by Dupont Land Associates, a related party. This note is noninterest bearing and has no specified due date. Leases The Partnership leases the land on which the office building is situated from Dupont Land Associates, a related party. The lease term of 99 years became effective February 9, 1978, and provides for net annual rent of $280,224 through December 31, 1998. Commencing January 1, 1999, until expiration, annual rental payments will be $350,280. The Partnership leases parking garage space to. Parkwell, Inc., a wholly owned subsidiary of Holywell Corporation, under a lease agreement which expires May 31, 1984. Terms of the lease provide for base annual rental payments of $60,000. In addition, percentage rent equal to 40% of Parkwell’s gross receipts in excess of $115,000 per lease year shall be paid to the Partnership. No additional percentage rent was earned during 1983 App. B-20 rit ail all : 3 4 3 ¢ % Ef z i 5 ' or 1982. Approximately $18,000 and $13,000 in rental payments were due to the Partnership at December 31, 1983 and 1982, respectively. Holywell Corporation leased office space from the Partnership under a lease which was terminated in March 1983. Rental income from Holywell in 1983 and 1982 was approximately $20,000 and $140,000, respectively. Rent receivable under this agreement at December 31, 1983 and 1982 was $11,000 and $15,000, respectively. App. B-21 EXHIBIT ‘‘C-2” 1616 REMINC LIMITED PARTNERSHIP NOTES TO FINANCIAL STATEMENTS YEARS ENDED DECEMBER 31, 1983 AND 1982 C. RELATED-PARTY TRANSACTIONS: Service Contracts Holywell Corporation and its subsidiaries, which are wholly owned by Theodore B. Gould, a general partner, provide a variety of services for the Partnership. Holywell Management Company (HMC), a division of Holywell Corporation, provides management and marketing services for the Partnership under an agreement that extends through December 31, 1988. Management and marketing fees for 1983 and 1982 were $182,639 and $182,671, respectively. Orion Industries, Inc., a wholly owned subsidiary of Holywell Corporation, provides janitorial, engineering, and security services for the Partnership. The contracts for janitorial, engineering, and security services are for five years and expire December 31, 1988. Fees related to these service agreements are as follows: 1983 1982 Janitorial services $233,104 $189,768 Engineering services 103,692 85,572 Security services 183,372 146,460 App. B-22 Notes Receivable The Partnership had notes and interest receivable from Holywell Corporation and one of Holywell’s wholly owned subsidiaries, Charleston Center Corporation, at December 31, 1982. Also, at that date, a note was due from 1300 North 17th Street Associates, a limited partnership of which Theodore B. Gould is a general partner. All notes were paid in full in 1983. App. B-23 EXHIBIT “‘C-3”’ 1300 NORTH 17TH STREET ASSOCIATES A LIMITED PARTNERSHIP NOTES TO FINANCIAL STATEMENTS YEARS ENDED DECEMBER 31, 1983 AND 1982 A. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: The Partnership is a limited partnership which owns and operates an 18-story, 357,000 square foot office building in Arlington, Virginia. The financial statements of the Partnership are prepared on the accrual basis of accounting and include only those assets, liabilities, and results of operations which relate to the business of the Partnership. Depreciation is computed using accelerated methods for building and components and the straight-line method for tenant improvements and equipment based on their estimated useful lives of 10 to 45 years for the building and components and 5 to 15 years for tenant improvements and equipment. Mortgage placement costs and other deferred costs are amortized over the appropriate loan period and lease term on a straight-line basis. B. INVESTMENT IN OFFICE BUILDING, AT COST: December 31, 1983 1982 Building and equipment $15,495,362 $15,477,836 Tenant. improvements 5,645,210 5,339,630 21,140,572 20,817,466 Less accumulated depreciation ( 3,676,265) ( 2,612,531) $17,464,307 $18,204,935 App. B-24 C. RELATED-PARTY TRANSACTIONS: Service Contracts Holywell Corporation and its subsidiaries which are wholly owned by Theodore B. Gould, a general partner, provide a variety of services for the Partnership. Holywell Management Company, a division of Holywell Corporation, provides management and marketing services for the Partnership, under an agreement that extend through December 31, 1988. Management fees for 1983 and 1982 were $260,291 and $233,520, respectively. Orion Industries, Inc., a wholly owned subsidiary of Holywell Corporation, provides janitorial, engineering, and security services for the Partnership. The contracts for janitorial, engineering, and security services are for five years and expire December 31, 1988. Fees related to these service agreements are as follows: 1983 1982 Janitorial services $239,963 $207,788 Engineering services 106,788 84,564 Security services 176,700 137,700 App. B-25 1616 REMINC LIMITED PARTNERSHIP NOTES TO FINANCIAL STATEMENTS YEARS ENDED DECEMBER 31, 1983 AND 1982 C. RELATED-PARTY TRANSACTIONS: (Continued) ACCRUED PRINCIPAL INTEREST TOTAL December 31, December 31, December 31, Name 1982 1982 1982 Corporation $ 910,600 $224,691 $1,135,291 Center Corporation 90,000 3,324 93,324 1300 North 17th Street Associates 100,000 9,203 109,203 $1,100,600 $237,218 $1,337,818 Notes Payable The note payable to related party consists of noninterest- bearing funds loaned by Arlington Associates, a limited partner, with no specified due date. Leases The Partnership leases a computerized Honeywell Delta 1000 building energy management system from HWL Corporation, a wholly owned subsidiary of Holywell Corporation, with rental payments of $3,454 per month. This agreement can be terminated by either party with one month’s written notice. The Partnership leases parking garage space to Parkwell, Inc., a wholly owned subsidiary of Holywell Corporation, under a lease agreement which expires October 31, 1988. Terms of the lease provide for base annual rental payments of $185,690. In addition, percentage rent equal App. B-26 eee See eee to 50% of Parkwell’s gross receipts in excess of $350,000 per lease year shall be paid to the Partnership. Percentage rental income was approximately $39,500 in 1983 and $23,000 in 1982. Approximately $119,000 and $39,000 in rental parking payments were due to the Partnership at December 31, 1983 and 1982, respectively. App. B-27 APPENDIX C UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA Cases Nos. 84-01590-BKC-TCB 84-01591-BKC-TCB 84-01592-BKC-TCB 84-01593-BKC-TCB 84-01594-BKC-TCB Proceedings in Chapter 11 IN RE HOLYWELL CORPORATION, et al. Debdtors. EMERGENCY MOTION TO TREAT PROCEEDS OF THE SALE OF CERTAIN REAL AND PERSONAL PROPERTY AS CASH COLLATERAL, TO SEGREGATE AND ACCOUNT FOR CASH COLLATERAL The Bank of New York (“BNY”), a secured creditor moves this Court, pursuant to Bankruptcy Code §363 and Bankruptcy Rules 4001 and 9014, for an order to compel the debtors in these jointly administered Chapter 11 proceedings to deem the proceeds of the sale of certain real and personal property (the “Washington Properties”) pursuant to a Purchase Agreement dated as of July 26, 1984, as amended on August 28, 1984, between Hadid Investment Group as and Twin Development Corporation (“TDC”), 1300 North 17th Street Associates (“1300""), 1616 Reminc Limited Partnership (“1616”), Eleven Dupont Circle Associates (“Dupont Circle”) and Dupont Land Associates (“Dupont Land”) as sellers (the “Purchase Agreement”) cash collateral and to segregate and account for cash collateral on the following grounds: 1. (a) BNYY, a construction lender, from time to time since March 27, 1980 has made loans (the “Construction App. C-1 Loans’’) to Miami Center Limited Partnership (“MCLP”’) and Chopin Associates (“Chopin”) in connection with the construction wf the Miami Center Phase 1 project (“Phase 1”). The loan agreements entered into in March 1980 contemplated $112,500,000 in loans to finance land acquisition and construction of Phase 1. Due primarily to delays and hard and soft cost overruns the total costs far exceeded the original estimates. BNY, at the request of MCLP and Chopin, made additional loans. The unpaid principal amount of the Construction Loans to Chopin and MCLP, together with certain overdraft indebtedness, amounts to $196,711,481.58, plus unpaid and accrued thereon since December 1, 1983. The Construction Loans, overdraft indebtedness and accrued and unpaid interest are guaranteed by guarantees of payment given to BNY by, among others, Holywell Corporation (“Holywell”) (the ‘“Guarantees’’); and are secured, inter alia, by mortgages on Phase I; by an assignment of and security interest in all right, title and interest of Theodore B. Gould (“Gould”) (or any entity in which Gould has or obtains an interest) to distributions as a general and/or limited partner from 1300, 1616 and Dupont Circle; by an assignment of all right, title and interest of Holywell (including, without limitation, any interest obtained as a result of any assignment or beneficial assignment) to distributions, sales proceeds and any other sums due or to become due to Holywell as a general and/or limited partner from 1300, 1616, Dupont Land and Dupont Circle; by a pledge of 100% of the issued and outstanding stock of Holywell; by a pledge of the stock of certain of Holywell’s wholly owned subsidiaries, including without limitation, 100% of the issued and outstanding stock of TDC, 100% of the issued and outstanding stock of Orion Industries, Inc. (“Orion”), 100% of the issued and outstanding stock of HWL Corporation (“HWL”) and 100% of the issued and outstanding stock of Parkwell, Inc. (““Parkwell’’). App. C-2 TRS Gibbs Gt oi rts (b) On or about October 14, 1983 BNY made a loan to Holywell in the principal amount of $1,750,000 (the ‘Holywell Loan’’), which Holywell Loan is evidenced by a Note, dated October 14, 1983, given by Holywell to BNY (the “Holywell Note”). The purpose of the Holywell Loan was to enable Holywell and Gould to seitle a lawsuit brought by Clark Enterprises, Inc. (“Clark”) a former shareholder of Holywell and to enable Gould to acquire the Holywell stock owned by Clark. As a result of the settlement, Gould became the owner of 100% of the issued and outstanding stock of Holywell. The unpaid principal amount of the Holywell Loan is $1,750,000 and interest is accrued and unpaid thereon since October 14, 1983. The payment of all principal and interest on the Holywell Loan is guaranteed by Gould pursuant to a guarantee of payment dated October 14, 1983 (the “Gould Guarantee’’). The Gould Guarantee is secured, inter alia, by an assignment of and security interest in all right, title and interest of Gould (or any entity in which Gould has or obtains an interest) to distributions as a general and/or limited partner of 1300, 1616 and Dupont Circle which assigned and security interest is superior to those described in (a) above. Holywell, as security for its obligations under the Holywell Note, assigned to BNY all of its right, title and interest (including, without limitation, interests obtained as a result of any assignment or beneficial assignment) to distributions, sales proceeds and any and all other monies due or to become due to Holywell as a general and/or limited partner of 1300, 1616, Dupont Circle and Dupont Land. 2. On August 22, 1984 Holywell, Gould, MCLP, Chopin and Miami Center Corporation (““MCC’’) each filed a petition for reorganization under Chapter 11, Section 301 of the Bankruptcy Code (the ‘“‘Code’’). The within Chapter 11 cases are being jointly administered pursuant to Order of this Court. 3. On October 22, 1984 this Court granted the motion of Holywell and Gould as partners and stockholders in TDC, App. C-3 1300, 1616, Dupont Circle and Dupont Land for an order authorizing and approving the sale of the Washington Properties pursuant to the Purchase Agreement. Paragraph 3 of the Order reads as follows: “Holywell and Gould, be and they hereby are, directed to segregate the share of net proceeds due Holywell and Gould from the sale of the real and personal property approved by this Order and to invest such proceeds in accordance with Section 345 of the Bankruptcy Code and hold same subject to further order of this Court.” By Order dated on or about December 10, 1984 Gould and Holywell were to cause all funds received by related entities in connection with the sale of the Washington Properties to be deposited in a segregated account. Paragraph 4 of that Order reads as follows: “Holywell and Gould shall cause all net funds payable into such segregated account pursuant to Paragraphs 1, 2 and 3 above to be invested in accordance with Section 345 of the Bankruptcy Code subject to any claim of lien by Bank of New York and subject to further order of this Court. The interest on such funds may be used with prior approval of this Court for operation of Miami Center subject to the prior orders of the court in regard to use of income. However, the transfer and use shall not prejudice any security, lien or future claims by any creditor.” 4. BNY, by reason of the following agreements, has a validly perfected first security interest in (i) any distributions to Gould (or any entity in which Gould has or obtains an interest) as a general and/or limited partner in 1300, 1616 and Dupont Circle, and (ii) all right, title and interest of Holywell (including, without limitation, interests obtained as a result of any assignment or beneficial assignment) to App. C-4 distributions, sales proceeds, and any other monies due or to become due to Holywell as a general and/or limited partner in 1300, 1616, Dupont Land and Dupont Circle: (a) Hypothecation and Security Agreement dated May 14, 1981, by and between Gould, MCLP, and BNY, as amended, whereby Gould hypothecated to MCLP, and MCLP, as security for the Construction Loans, pledged to the Bank, inter alia, all right title and interest of Gould (or any entity in which Gould has or obtains an interest) to distributions, as a general and/or limited partner from 1300, 1616 and Dupont Circle. (Gould’s interests in 1333 New Hampshire Associates was also hypothecated and pledged but this partnership’s property has since been sold). A copy of the Hypothecation and Security Agreement dated May 14, 1981 and all amendments and modifications thereto are annexed hereto and marked as Exhibit “A”. BNY’s interest in the distributions from 1300, 1616 and Dupont Circle to Gould and the Gould related entities was perfected by the filing of UCC-1 Financing Statements, naming Gould as debtor, in the Circuit Court Clerk’s Office, Albemarle County, Virginia on May 26, 1981, file number 10,629, and in the office of the Secretary of State of the Commonwealth of Virginia on May 27, 1981, file number 810513876. (b) Assignment and Security Agreement, dated June 23, 1983, by Holywell to BNY, whereby Holywell, as collateral security for Holywell’s obligations under the Guarantees, assigned to BNY and granted BNY a first priority security interest in, inter alia, all right title and interest of Holywell (including, without limitation any interest obtained as a result of any assignment or beneficial App. C-5 assignment) to distributions, sales proceeds and any and all monies due and/or to become due to Holywell as a general or limited partner of 1300, 1616, Dupont Circle, and Dupont Land. A copy of the Assignment and Security Agreement dated June 23, 1983 is attached hereto and marked as Exhibit “B’. BNY’s security interest in the distributions and sales proceeds from 1300, 1616, Dupont Circle and Dupont Land was perfected by the filing of UCC-1 Financing Statements naming Holywell as debtor, in the Circuit Court Clerk’s Office, Arlington County, Virginia on October 25, 1983, file numbers 32229, 32230 and 32231 and in the real property records in Washington, D.C. on December 1, 1983, file number 39026. (c) Amendment No. 1 dated October 14, 1983 to the Assignment and Security Agreement dated June 23, 1983 by Holywell to BNY whereby BNY was granted, as security for the repayment of the Holywell Loan, an assignment of all right, title and interest of Holywell (including, without limitation, interests obtained as a result of any assignment or beneficial assignment) to distributions, sales proceeds and any and all other monies due and to become due to Holywell as a general and/or limited partner in 1300, 1616, Dupont Land and Dupont Circle. A copy of Amendment No. 1 is attached hereto and marked as Exhibit “C”. BNY’s security interest in the distributions and sales proceeds from 1300, 1616, Dupont Land and Dupont Circle was perfected by the filing of financing statements in the Clerk’s Office in Arlington County, Virginia on October 25, 1983, file numbers 32229, 32230 and 32231, and in the real property records in Washington D.C. on December 1, 1983, file number 39026. App. C-6 ee ee ee CT ee See aes at Pesos te ee ee eS ORE a, Vey ane (d) Assignment and Security Agreement, dated October 14, 1983, by Gould to BNY whereby Gould, to secure the Gould Guarantee, granted BNY an assignment of any security interest in all collateral set forth in the Hypothecation and Security Agreement dated May 14, 1981, as amended, referred to in (a) above, by and between Gould and MCLP and BNY. A copy of the Assignment and Security Agreement dated October 14, 1983 is attached hereto and marked as Exhibit “D’’. 5. Based on an analysis of the limited partnership agreements for 1300, 1616, Dupont Circle and Dupont Land and based on the information set forth in a letter dated December 3, 1983 from Gould to BNY,* confirming Gould’s and Holywell’s interests in the partnerships which own the Washington Properties (a copy of said letter is attached hereto and marked as Exhibit “E’’) Gould’s and Holywell’s ownership interests in 1300, 1616, Dupont Circle and Dupont Land are as follows: (a) 1300 — 69.342% (b) 1616 — 45.90% (c) Dupont Circle — 31.37% (d) Dupont Land — 31.37% An explanation of the computation of Gould’s and Holywell’s ownership interests in the aforementioned limited partnerships is set forth in the attached Schedule ‘1”’. *Note that the percentage of Gould’s total direct and indirect general and limited partnership interests differs from the percentages set forth in the letter attached hereto and marked as Exhibit “E’’. Based upon information available to BNY it appears that Gould’s and Holywell’s ownership interests in 1300, 1616, Dupont Circle and Dupont Land were accurately set forth in the letter, however the computation of Gould’s and Holywell’s percentage interests in the partnerships as set forth in the letter is obviously erroneous. App. C-7 6. The distributions to Gould and Holywell from the partnerships set forth above are clearly “‘cash collateral” as defined by Code §363(a) since BNY has a perfected first security interest as collateral for the Holywell Loan and a perfected second security interest for the Construction Loans in the distributions made or to be made to Gould and Holywell (or any entity in which Gould has or obtains an interest) under state law, and such a security interest in post-petition proceeds is authorized by Code §552(b). 7. The cash collateral forms (i) a part of the security granted to BNY in connection with the Construction Loans and the overdraft indebtedness, in the aggregate principal amount of $196,711,481.58, accrued and unpaid interest thereon, and (ii) the only security to BNY in connection with the Holywell Loan together with the accrued and unpaid interest thereon. 8. In summary, as set forth above and in its Memorandum of Law, BNY respectfully requests that all distributions flowing to Gould and Holywell and its related entities as set forth above be deemed “cash collateral” to be held in the segregated account referred to in Paragraph 3 above subject to the continuing security interest in favor of BNY, and that Gould, Holywell and the related entities be directed to account for said cash collateral. WHEREFORE, BNY respectively requests that this Court issue an Order granting the relief requested herein together with such other and further relief as this Court deems just and proper. App. C-8 Oe ee ee DATED this 13 day of December, 1984. Emmet, Marvin & Martin 48 Wall Street New York, New York 10005 (212) 422-2974 S. Harvey Ziegler, Esq. Meyer Weiss Rose Arkin Shampanier Ziegler & Barash 405 Lincoln Road Miami Beach, Florida 33139 and Steel Hector & Davis 4000 Southeast Financial Center Miami, Florida 33131 (805) 577-2800 By: /s/ Francis L. Carter FRANCIS L. CARTER CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Emergency Motion to Treat Proceeds Of The Sale Of Certain Real and Personal Property As Cash Collateral, To Segregate And Account For Cash Collateral was mailed this 13 day of December, 1984 to all parties on the attached list. By: /s/ Francis L. Carter FRANCIS L. CARTER App. C-9 SERVICE LIST HOLYWELL CORP., ET AL Daniel Lampert, Esq. Morgan, Lewis & Bockius 3200 Miami Center 100 Chopin Plaza Miami, Florida 33131 Fred H. Kent, Jr., Esq. Kent, Watts, Durden, Kent Nichols & Mickler 850 Edward Ball Building Post Office Box 4700 Jacksonville, Florida 32201 S. Harvey Ziegler, Esq. Meyer Weiss Rose Arkin Shampanier Ziegler & Barash, P.A. 407 Lincoln Road Miami Beach, Florida 33139 Thomas F. Noone, Esq. Emmet, Marvin & Martin 48 Wall Street New York, New York 10005 Irving M. Wolff, Esq. Holland & Knight 1200 Brickell Avenue Miami, Florida 33131 William C. Crenshaw, Esq. Valdes-Fauli, Cz=.» «& Petrey, P.A. 1401 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131 App. C-10 William E. Sadowski, Esq. Akerman, Senterfitt & Eidson 405 Brickell Concours 1401 Brickell Ave. Miami, Florida 33131 Barry J. Dichter, Esq. Cadwalader, Wickersham & Taft One Wall Street New York, New York 10005 J. T. Blount Manager Legal Affairs Florida Power & Light Post Office Box 529100 Miami, Florida 33152 John W. Kozyak, Esq. Kozyak & Tropin, P.A. 607 New World Tower 100 North Biscayne Blvd. Miami, Florida 33132 Steven E. M. Hartz, Esq. Dade Savings Bldg. Eleventh Floor 101 East Flagler St. Miami, Florida 33131 William Lance Gerlin, Esq. Stinson, Lyons & Schuette, P.A. 1401 Brickell Avenue Ninth Floor Miami, Florida 33131 1300 N. 17th Street Associates 1300 N. 17th Street Suite 500 Arlington, Virginia 22209 App. C-11 Touche Ross & Company 700 Miami Center 100 Chopin Plaza Miami, Florida 33131 William & Connolly 339 Seventeenth Street, N.W. Washington, D.C. 20006 Shutts & Bowen 1500 Miami Center 100 Chopin Plaza Miami, Florida 33131 Main Hurdman 1050 17th St. N.W. Washington, D.C. 20036 Barton-Aschman 1400 K. Street, N.W. Washington, D.C. 20005 Radis Organization 230 Park Avenue New York, New York 10017 Hestor, Roth & Calloway 2961 A Chain Bridge Road Oakton, Virginia 22124 Xerox Computer Services Post Office Box 92755 Chicago, Illinois 60675 Pavillon Hotel 100 Chopin Plaza Miami, Florida 33131 Morris, James, Hitchens & Williams Post Office Box 2306 Wilmington, Delaware 19899 App. C-12 Mary Snyder & Associates 927 15th Street, N.W. Washington, D.C. 20005 Eleven duPont Circle Associates 1300 N. 17th Street Arlington, Virginia 22209 Accountemps 7316 Wisconsin Avenue Suite 401 Washington, D.C. 20014 Finley, Kumble & Wagner 425 Park Avenue New York, New York 10022 James L. Brown 219 S. Barrington, No. 2 Los Angeles, Calif. 90049 Helft World Travel Post Office Box 99 Vienna, Virginia 22180 Hank Meyer & Associates 2990 Biscayne Blvd. Miami, Florida 33137 Mershon, Sawyer, Johnsston, Dunwody & Cole O. C. Howe, Esquire 4500 Southeast Financial Center Miami, Florida 33131 Winburn & Ramo Suite 1008, Concord Bldg. 66 West Flagler St. Miami, Florida 33130 App. C-13 i, Albert I. Edelman, Esq. Parker, Chapin, Hattaw & Klimp] 530 Fifth Avenue New York, New York 10005 Jerry M. Markowitz, Esq. Markowitz, Davis & Ringel Suite 100, Dadeland Towers South 9400 South Dadeland Boulevard Miami, Florida 33156 Radix Organization 230 Park Avenue New York, New York 10017 Trust ifouse Forte 1973 Friendship Drive El Cabon, California 92090 Mr. Paul Perlstein Dynamic Food Service 19 West 44th Street New York, New York 10036 Mr. Studley Holywell 625 Madison Avenue New York, New York 10022 Mr. J. Gallager CBM Engineers, Inc. Suite 830 1700 West Loop South Houston, Texas 77027 Mr. Roy Anderson Argonaut Insurance Post Office Box 9887 Suite B-200 9830 North 32nd Street Phoenix, Arizona 85028 a e an App. C-14 Francis L. Carter, Esq. Steel Hector & Davis 4000 Southeast Financial Center Miami, Florida 33131-2398 Mr. Rich Rogers Scientific Atlanta Post Office Box 105600 One Technology Parkway Atlanta, Georgia 30348 Laborers of Dade County Escrow Account P. O. Box 1104-Kendall Branch Miami, Florida 33156 Mr. Ludovico De Santillana Venini International Fondamenta Vetrai 50 30121 Murano Venezia, Italia Richard Touby, Esq. 1209 Biscayne Building 19 West Flagler Street Miami, Florida 33130 Com Corps., Inc. 711 Fourth Street, N.W. Washington, D. C. 20001 Mr. Sukeforth Sasaki Associates 64 Pleasent Street Watertown, Mass. 02172 Mr. Lisle Lipscomb, Jr. Kemper Group 1610 Forest Avenue Richmond, Virginia 23288 App. C-15 Oser, Kaler, Grimes & Shriver 710 Ring Building 1200 18th Street, N. W. Washington, D. C. 20036 Xerox Computer Services Post Office Box 92755 Chicago, Llinois 60675 App. C-16 ) | 3 } a . 3 3 . 4 ; | % / ‘ ; 4 ] 4 : 4 WS VIA ROO ANNA OAS iy Danan Cate 0 ae RS ee En ae A TE RP ete Ripe’ be SCHEDULE 1 COMPUTATION OF GOULD’S AND HOLYWELL’S INTEREST IN LIMITED PARTNERSHIPS (a) 1300 — A one hundred percent general partnership interest in 1300 is equal to a 60% interest in the total ownership of 1300. TDC owns 91.67% of the general partnership interests. Gould owns 8.33% of the general partnership interests. TDC is wholly owned by Holywell. Gould owns 100% of the issued and outstanding stock of Holywell. Gould and Holywell therefore own 100% of the general partnership interests which is equivalent to a 60% interest in the entire partnership. A one hundred percent limited partnership interest in 1300 is equal to a 40% interest in the total ownership of 1300. Gould owns a 6.336% limited partnership interest and Holywell owns a 13.33% limited partnership interest. Gould and Holywell therefore own approximately 19.66% of the limited partnership interest in 1300 which is equivalent to a 9.342% interest in the entire partnership. Therefore, taken as a whole Gould’s and Holywell’s direct and indirect general and limited partnership interests entitle them to approximately 69.342% of the partnership distributions resulting from the sale of the partnership asset. (b) 1616 — A one hundred percent general partnership interest in 1616 is equal to an 80% interest in the total ownership of 1616. Gould owns 50% of the general partnership interests. Gould’s general partnership interest is therefore equivalent to a 40% interest in the entire partnership. A one hundred percent limited partnership interest in 1616 is equal to a 20% interest in 1616. 1616 Arlington Associates owns a 98.26% limited partnership interest in 1616. Gould owns a 30% interest in 1616 Arlington Associates. Gould’s direct and indirect limited partnership App. C-17 interests are therefore equivalent to a 5.90% interest in the entire partnership. Therefore, Gould’s and/or Holywell’s direct and indirect general and limited partnership interests entitle them to approximately 45.90% of the partnership distributions resulting from the sale of partnership assets. (c) Dupont Circle — A one hundred percent general partnership interest in Dupont Circle is equal to a 50% interest in Dupont Circle. Gould owns 59% of the general partnership interests. Gould’s general partnership interest is therefore equivalent to a 29.5% interest in the entire partnership. A one hundred percent limited partnership interest in Dupont Circle is equal to 50% of the total ownership of Dupont Circle. Gould owns approximately 3.75% of the limited partnership interests. Gould’s limited partnership interests are therefore equivalent to a 1.87% interest in the entire partnership. Therefore, Gould’s and/or Holywell’s direct and indirect general and limited partnership interest entitle them to approximately 31.37% of the partnership distributions resulting from the sale of the partnership asset. (d) Dupont Land — A one hundred percent general partnership interest in Dupont Land is equal to 50% interest of the total ownership of Dupont Land. Gould owns 59% of the general partnership interests. Gould’s general partnership interest is therefore equivalent to a 29.5% interest in the entire partnership. A one hundred percent limited partnership interest in Dupont Land is equal to 50% of the total ownership of Dupont Land. Gould owns approximately 3.75% of the limited partnership interests. Gould’s limited partnership interests are therefore equivalent to a 1.87% interest in the entire partnership. App. C-18 ee oe Ee ee. ei ne Sa. A © mes Be ee ** Therefore, Gould’s and Holywell’s general and limited partnership interests entitle them to approximately 31.37% of the partnership distributions resulting from the sale of the partnership asset. App. C-19 EXHIBIT “‘A”’ HYPOTHECATION AND SECURITY AGREEMENT Agreement made this 14th day of May, 1981 among Theodore B. Gould (“Gould’’), Miami Center Limited Partnership (“Borrower”) and The Bank of New York (““Lender’’). WITNESSETH: WHEREAS, pursuant to a Building Loan Agreement dated as of the 27th day of March, 1980 as supplemented (the “Agreement” by and between Charter Mortgage Company and the Borrower, which Agreement was assigned to the Lender, the Lender is advancing funds to the Borrower for the purpose of funding a portion of the cost of the construction of the Improvements; and WHEREAS, Gould is the owner of the interests in personal property more particularly described in Schedule A attached hereto, which personal property and all products and proceeds thereof, accessions and additions thereto and substitution therefor are herein collectively called the “Collateral”; and WHEREAS, Gould wishes to hypothecate the Collateral to the Borrower for the purpose of permitting the Borrower to create in favor of the Lender a continuing security interest therein as security for all obligations of the Borrower under the Agreement and the Loan Documents (hereafter called the “Obligations’’). NOW, THEREFORE, in consideration of the premises, the mutual covenants, terms and conditions herein contained and other good and valuable consideration the receipt and sufficiency of which the parties hereto acknowledge, the parties hereto, intending to be legally bound, do hereby covenant and agree as follows: App. C-20 1. Definitions: Terms not otherwise defined herein shall have the same meanings as set forth in the Agreement. 2. Hypothecation: Gould hereby represents, covenants and agrees: (a) That the Borrower is authorized to assign, pledge, grant a continuing security interest in, and a lien on, the Collateral to the Lender to secure the Obligations. (b) That when so pledged, assigned and/or liened, the Collateral shall secure the Obligations and a continuing first security interest in the Collateral shall exist, and will continue to exist, in the Lender’s favor as security for the Obligations, subject only to the encumbrances specified in Schedule A. (c) Take all agreements which the Borrower has made or may make with the Lender regarding the Collateral shall be applicable to the Collateral to the same extent as if such Collateral were owned by Borrower, and Gould hereby expressly ratifies, consents to and adopts any and all agreements which Borrower has made or may hereafter make with the Lender with respect to the Collateral. (d) That any additions to, accumulations of, substitutions for, accessions to and proceeds of the Collateral in any form whatsoever which shall come into possession of Gould or the Borrower shall be held in trust for the Lender and upon receipt thereof shall be delivered to the Lender in the form received. (e) That without notice to or consent of Gould, Lender may (i) release any endwwser, guarantor or any collateral given to secure any of the Obligations and (ii) at any time, and from time to time, extend the time of payment or renew in whole or in part any of the Obligations for such time or times as the Lender may determine, and all of the provisions and authorizations contained herein shall apply to al! such renewals and extensions. App. C-21 (f) That Gould waives any rights which Gould may have under Section 9-112 of the Uniform Commercial Code and waives notice of the acceptance of or reliance upon any of the provisions of this Hypothecation and Security Agreement by the Lender. 3. Assignment: To secure payment and performance of the Obligations, Borrower hereby assigns, pledges, and grants a continuing first priority security interest in, and a lien on, all of Borrower’s right, title and interest in and to the Collateral in favor of Lender as security for all of the Obligations, subject only to the encumbrances specified in Schedule A. 4. Special Accounts: Gouls agrees to deposit immediately upon receipt in a special deposit account maintained with Lender all funds payable to Gould pursuant to a certain Agreement of Joint Venture, dated as of March 2, 1981 (the “Joint Venture Agreement”), between Gould and Olympia & York Florida Equity Corp., which joint venture is known as Miami Center Joint Venture (the “Joint Venture”), with the exception of those funds in excess of $2,900,000 specified in Sections 2.3(b) and 2.3(d) of the Joint Venture Agreement payable to Gould as reimbursement for expenses incurred by Gould. In addition, Gould agrees that any and all cash proceeds of the Collateral shall be deposited by Gould in the form received in the special account. Until an Event of Default shall occur hereunder, Gould may direct the Lender to invest and reinvest such funds and cash proceeds in short-term investments satisfactory to Lender. All such investments shall be held by the Lender in a special safe-keeping account. Any such investments and all interest, dividends, accumulations and other earnings on the funds or the investments in the special safe-keeping account shall be redeposited and reinvested and shall become part of the Collateral. The Lender shall have no obligation or duty to inquire into the wisdom or prudence of any such investments and no liability for the validity, genuineness, or collectibility App. C-22 Sa a te of such investments or for any depreciation in value or loss arising from such investments. 5. Covenants, Representations and Warranties: Gould and Borrower covenant, represent and warrant, and, so long as the Obligations hereby secured remain outstanding, shall be deemed continuously to covenant, represent and warrant, that: (a) Gould and Borrower each has the power and authority to enter into this Hypothecation and Security Agreement, and when executed by Gould and Borrower this Hypothecation and Security Agreement shall constitute a valid and binding obligation of Gould and Borrower enforceable against each in accordance with its terms. (b) With respect to the Collateral, the Lender shall be under no duty to send notices, perform services, exercise any rights of collection, enforcement, conversion or exchange, vote, pay for insurance, taxes or other charges or take any action of any kind in connection with the management thereof and its only duty with respect thereto shall be to use reasonable care in its custody and preservation of the Collateral while the Collateral is in its actual possession, which shall not include any steps necessary to preserve rights against prior or third parties. (c) Neither Gould nor Borrower has heretofore hypothecated, assigned, pledged or granted a security interest in, or otherwise encumbered, the Collateral or any rights or interest therein or thereto, except as provided in Schedule A. (d) No applicable law or governmental regulation and nothing in any agreement to which the Borrower or Gould is a party purports to forbid, restrict, or subject to conditions precedent the hypothecation and creation of a security interest in and lien on the Collateral as herein contained. (e) Borrower and Gould hereby authorize the Lender at the Borrower’s and Gould’s expense to file one or more App. C-23 financing statements to give notice of the hypothecation and perfect the security interests herein specified, and Gould and Borrower hereby jointly and severally agree to pay all costs of file or title searches made by the Lender with respect to Gould, the borrower or the Collateral. (f) Borrower and Gould will not further hypothecate, pledge, assign, or otherwise create or suffer to exist a security interest in, or lien on, the Collateral in favor of anyone other than the Lender. (g) Borrower and Gould will do, file, record, make, execute and deliver all such acts, deeds, things, notices, instruments and financing statements as may be necessary or desirable to vest in and assure to the Lender its security interest in the Coilateral and the enforcement of and giving effect to its rights, remedies and powers hereunder. Gould hereby further agrees that on or before May 15, 1981, he will deliver, or cause to be delivered, to Lender true and complete copies of the Joint Venture Agreement, and, on or before June 15, 1981, he will deliver or cause to be delivered, to Lender true and complete copies of all partnership agreements, together with all amendments thereto, of the partnerships owning the properties described in Schedule A, together with all necessary consents and directions required hereby or thereby to effectuate the hypothecation provided for herein. Gould shall furnish such current audited financial information with respect to the Collateral as shall be requested by Lender from time to time. In addition, Gould shall deliver to Lender on or before June 15, 1981 a mortgage, in form and substance satisfactory to the Lender, on property owned by Charleston Center Corp. located in Charleston, South Carolina (subject only to a mortgage held by American Security Bank, N.A. in the principal amount of $1,800,000) together with such title insurance and other information as Lender may require. (h) Without the prior written approval of Lender, which approval shall be within the sole and absolute App. C-24 discretion of the Lender, Gould shall not amend, modify or terminate (not permit the amendment, © dification or termination of) the Joint Venture, the Joint Venture Agreement or any of the partnerships set forth in Schedule A, nor shall Gould sell, assign or otherwise transfer or encumber his interest in the Joint Venture, the Joint Venture Agreement or any of the partnerships set forth in Schedule A. (i) Neither Gould nor Borrower shall transfer or withdraw or attempt to transfer or withdraw any amounts from the special deposit account and special safe-keeping account referred to in Section 4 hereof without the prior written consent of the Lender, which consent shall be within the sole and absolute discretion of the Lender. (j) The security interest created herein constitutes and shali constitute a first priority security interest in and lien on the Collateral, subject only to the encumbrances specified in Schedule A. (k) Gould has delivered to the Joint Venture irrevocable instructions directing that payments due and to become due to Gould pursuant to Section 2.3(e) of the Joint Venture Agreement be sent directly to the Lender, and Gould is delivering to Lender on the date hereof a true copy of such instructions. 6. Events of Default: The following shall constitute “Events of Default” hereunder: (a) The occurrence of an Event of Default under the Agreement or under any of the Loan Documents; or (b) If Gould or the Borrower shall fail to perform or observe any covenant or agreement on its pait to be performed or observed under this Hypothecation and Security Agreement; or (c) If any representation or warranty of Gould or the Borrower contained herein shall prove at any time to be false or misleading; or App. C-25 (d) Ifthe Lender shall not receive directly from or on behalf of the Joint Venture the payments required to be made to Gould under Section 2.3(e) of the Joint Venture Agreement within three (3) days of the date such payments are due and payable under the Joint Venture Agreement. 7. Remedies on Default: Upon the occurrence of an Event of Default hereunder, Lender shall have, in addition to all of the rights and remedies provided for in the Agreement and all of the rights and remedies allowed by law, the rights and remedies of a secured party under the Uniform Commercial Code as in effect at that time and, without limiting the generality of the foregoing, Lender may immediately, without demand of performance and without notice of intention to sell or of the time or place of sale or of redemption or other notice or demand whatsoever to Gould or Borrower, all of which are hereby expressly waived, and without advertisement, sell at any time or from time to time, at public or private sale, grant options to purchase or otherwise realize upon, in the State of New York, or elsewhere, the whole or any part of the Collateral. At any such sale or other disposition, the Lender, its assigns, officers or nominees, may purchase the whole or any part of the Collateral, free from any right or redemption on the part of Gould or the Borrower, which right is hereby waived and released. No failure on the part of the Lender to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Lender of any right, remedy or power hereunder preclude any other or future exercise of any other right, remedy or power. Each and every right, remedy or power hereby granted to the Lender or allowed it by law or other agreement shall be cumulative and not exclusive, and may be exercised by the Lender from time to time. App. C-26 8. Sale of Pledged Shares: Borrower and Gould recognize that the Lender may be unable or may not desire to effect a public sale of all or part of any securities set forth in Schedule A by reason of certain prohibitions and restrictions contained in the Securities Act of 1933, as amended, and may be compelled or deem it desirable to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such pledged securities for their own account, for investment, and not with a view to the distribution or resale thereof. Borrower and Gould agree, to the extent applicable, that private sales so made may be at prices and other terms less favorable to the seller than if the pledged securities were sold at public sales and that the Lender has no obligation to delay sale of any such pledged securities for the period of time necessary to permit the issuer of said pledged securities, even if such issuer would agree, to register such pledged securities for public sale under the Securities Act of 1933, as amended. Gould and Borrower agree that private sales made under the foregoing circumstances shali be deemed to have been made in a commercially reasonable manner. 9. Governing Law: This Hypothecation and Security Agreement shall be construed, interpreted and enforced according to the laws of the State of New York. IN WITNESS WHEREOF, this Hypothecation and Security Agreement has been duly executed by the undersigned on the day first above-written. /s) THEODORE B. GOULD Theodore B. Gould App. C-27 MIAMI CENTER LIMITED PARTNERSHIP By: By: Miami Center Corporation, General Partner By: /s/ THEODORE B. GOULD /s) THEODORE B. GOULD Theodore B. Gould, General Partner App. C-28 SCHEDULE A TO HYPOTHECATION AND SECURITY AGREEMENT 1. All right, title and interest of Gould in and to the Theodore B. Gould Special Deposit Account #40-7720 and the Theodore B. Gould Special Safekeeping Account #916838 maintained at The Bank of New York including all funds at any time deposited in said accounts and any investments and reinvestments of the funds depesited from time to time in said accounts and all interest, dividends, accumulations and other earnings on said funds or said investments. 2. All right, title and interest of Gould (including any entity in which Gould has or obtains an interest) to distributions, as a general and/or limited partner, from 1300 North 17th Street Associates, including distributions which may be available as the result of: (a) the funding by Metropolitan Life Insurance Company (Weaver Bros., Inc.) of its “Maximum Top Loan”, as defined in its commitment dated April 10, 1978, as amended, and (b) the retirement of certain indebtedness due to American Security Bank, N.A. secured by a Certificate of Deposit in the amount of $5,000,900 issued by American Security Bank, N.A., subject in each case to the prior rights of American Security Bank, N.A. 3. 80,000 shares of stock of Holywell Corporation in the name of Theodore B. Gould representing 80% of the issued and outstanding shares of stock of Holywell Corporation which shares are presently pledged to Manufacturers National Bank of Detroit and/or Mr. Andrew Kalman as security for a letter of credit in the amount of $4,000,000. 4. All right, title and interest of Gould (or any entity in which Gould has or obtains an interest) to distributions, as a general and/or limited partner, from 1333 New Hampshire Associates, which partnership owns certain real property located at 1333 New Hampshire Avenue, Washington, D.C., subject to any claim of The George Hyman Construction Company, Manufacturers National Bank of Detroit or Mr. Andrew Kaiman. 5. All right, title and interest of Gould (or any entity in which Gould has or obtains an interest) to distributions, as a general and/or limited partner, from Eleven Dupont Circle Associates, which partnership owns certain real property located at 11 Dupont Circle, Washington, D.C., subject to any claim of The George Hyman Construction Company, Manufacturers National Bank of Detroit or Mr. Andrew Kalman. 6. All right, title and interest of Gould (or any entity in which Gould has or obtains an interest) to distributions, as a general and/or limited partner, from 1616 Reminc Limited Partnership, which partnership owns certain real property located at 1616 North Fort Myer Drive, Arlington, Virginia, subject to any claim of The George Hyman Construction Company, Manufacturers National Bank of Detroit or Mr. Andrew Kalman. App. C-30 MIAMI CENTER LIMITED PARTNERSHIP 300 MIAMI CENTER 100 CHOPIN PLAZA MIAMI, FLORIDA 33131 (305) 374-6102 November 17, 1982 The Bank of New York 48 Wall Street New York, New York 10015 Attention: Mr. James A. Hamilton, Vice President RE: Miami Center, Miami, Florida Dear Mr. Hamilton: Reference is made to that certain Hypothecation and Security Agreement dated May 14, 1981 among Theodore B. Gouid (“Gould”), Miami Center Limited Partnership (“Borrower”) and The Bank of New York (“‘Lender”’) a copy of which is attached hereto as Exhibit A (the “Security Agreement”’). By the terms of the Security Agreement Gould hypothecated certain personal property, as described in Schedule A to the Security Agreement (the “‘Collateral’’), to the Borrower and the Borrower assigned, pledged and granted a continuing first priority security interest in, and a lien on, all of Borrower’s right, title and interest in and to the Collateral in favor of Lender as security for Borrower’s Obligations, subject only to certain encumbrances as specified in said Schedule A. We wish to confirm that: (1) the term Obligations, as used in the Security Agreement, encompasses Borrower’s and Chopin Associates’ (“Chopin’’) obligations under (i) the App. C-31 $24,000,000 Note dated May 26, 1982 made by Borrower and Chopin to Lender and the $24,000,000 Building Loan Mortgage, Assignment of Leases and Rents and Security Agreement, recorded in the Clerk’s Office in Dade County, Florida, May 28, 1982 under Clerk’s File No. 82R-120879 in O. R. Book 11454, Page 1129, securing said $24,000,000 Note; and (ii) the $11,000,000 Note and Confirmatory Note dated as of August 27, 1982 made by Borrower and Chopin to Lender and the $11,000,000 Building Loan Mortgage, Assignment of Leases and Rents and Security Agreement recorded in the Clerk’s Office in Dade County, Florida, September 27, 1982 under Clerk’s File No. 82R-219551 in O. R. Bood 11568, Page 1370, securing said $11,000,000 Note and Confirmatory Note; and (2) that the term Obligations shall encompass any and all obligations of Borrower and/or Chopin pursuant to any Note(s) and Mortgage(s) which may hereafter be given by Borrower and/or Chopin to Lender. Further, we wish to confirm that a default by Borrower or Chopin, under and as defined in the Notes and Mortgages set forth in the preceeding paragraph or under and as defined in any Note(s) and Mortgage(s) given by Borrower and/or Chopin to Lender in the future, shall constitute an Event of Default under the Security Agreement entitling Lender to exercise the rights and remedies set forth in the Security Agreement. Except as modified or changed herein, all other provisions of the Security Agreement shall remain in full force and effect. App. C-32 All terms used herein which are defined in the Security Agreement shali have the same meanings herein, unless the context hereof otherwise requires. Sincerely, THEODORE B. GOULD /s) THEODORE B. GOULD Theodore B. Gould, Individually MIAMI CENTER LIMITED PARTNERSHIP By: Miami Center Corporation, General Partner By: /s/ THEODORE B. GOULD Theodore B. Gould, President By: /s/ THEODORE B. GOULD Theodore B. Gould, Generai Partner CHOPIN ASSOCIATES By: Miami Center Corporation, General Partner By: /s/ THEODORE B. GOULD Theodore B. Gould, President By: /s/ THEODORE B. GOULD Theodore B. Gould, General Partner App. C-33 FIRST AMENDMENT TO HYPOTHECATION AND SECURITY AGREEMENT THIS FIRST AMENDMENT TO HYPOTHECATION AND SECURITY AGREEMENT (“First Amendment”) dated as of the 20th day of January, 1983 to the Hypothecation and Security Agreement dated May 14, 1981 among Theodore B. Gould (“Gould”), Miami Center Limited Partnership (“Borrower’) and The Bank of New York (“Lender”) (the “Agreement”’). WITNESSETH: WHEREAS, Lender is about to make a loan to Borrower and Chopin Associates (“Chopin”) in an amount not exceeding $8,000,000 or such lesser sum as Lender in its sole discretion may choose to lend (the “Loan”); and WHEREAS, the Loan will be evidenced by a note dated January 20, 1983 in the aggregate principal amount of $8,000,000 made by Borrower and Chopin to Lender, which note will be secured by a Building Loan Mortgage, Assignment of Leases and Rents and Security Agreement dated January 20, 1983 by Borrower and Chopin to Lender; and WHEREAS, Lender has indicated that it will not make the Loan unless Gould and Borrower execute and deliver this First Amendment to Lender; and WHEREAS, in order to induce Lender to make the Loan Borrower and Gould have agreed to execute and deliver this First Amendment to Lender; NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower and Gould hereby agree as follows: App. C-34 1. The third line of Section 4 of the Agreement shall be amended in its entirety to read as follows: “tained with Lender all funds, including, without limitation, all distributions, judgments and awards payable to Gould pursuant to, or arising out of, a” 2. There shall be added to Schedule A of the Agreement, immediately following paragraph 6, the following paragraphs: “7. All right title and interest of Gould (or any entity in which Gould has or obtains an interest) to funds or distributions resulting from any rental, lease, assignment, sale, transfer or refinancing of all or any part of the Condominium Parcel and/or Blocks 2, 3 and 4 of DuPont Plaza, all as more particularly described in Exhibit A attached hereto, including all improvements thereon.” “8. All right, title and interest of Gould (or any entity in which Gould has or obtains an interest) in and to all furniture, fixtures, equipment and other personal property owned or to be owned by Gould (or any entity in which Gould has or obtains an interest) and used or intended to be used in connection with the Premises (“FF&E’’), including, without limitation, the FF&E to be leased by Gould and Holywell Telecommunications Company (““HTC’’) to Borrower including all rental payments due under any such lease. 3. There shall be added to the Agreement Exhibit A attached hereto. 4. For purposes hereof, HTC hereby hypothecates to Gould all of its right, title and interest in and to all FF&E owned or to be owned by it for the purpose of enabling Gould to hypothecate same to Borrower under the Agreement as amended by this First Amendment. 5. Gould hereby ratifies and confirms his hypothecation to the Borrower of all of his right, title and App. C-35 interest in and to the Collateral and the Borrower hereby ratifies and confirms its assignment and grant of security interest to the Lender in and to the Collateral. /s) THEODORE B. GOULD Theodore B. Gould MIAMI CENTER LIMITED PARTNERSHIP By: Miami Center Corporation, General Partner By: /s/ THEODORE B. GOULD Theodore B. Gould, President By: /s/ THEODORE B. GOULD Theodore B. Gould, General Partner HOLYWELL TELECOMMUNICATIONS COMPANY By: /s/ THEODORE B. GOULD App. C-36 EXHIBIT A All of Tract D, Block 1, DUPONT PLAZA, according to the Plan thereof, as recorded in Plat Book 50, at Page 11 of the Public Records of Dade County, Florida, LESS the following described property: Being that portion of Tract D, Block 1, DUPONT PLAZA, according to Plat thereof, as recorded in Plat Book 50, at Page 11 of the Public Records of Dade County, Florida, being more particularly described as follows: Being at the Northeast corner of said Tract D and run West along the North line of Tract D for 645.94 feet to a Point of Curvature; thence Southwesterly along a circular curve to the left having a radius of 25.00 feet and a central angle of 61 degrees 26 minutes 00 seconds for an arc distance of 26.81 feet to a Point of Compound Curvature; thence Southerly along a circular curve to the left having a radius of 300.00 feet and a central angle of 28 degrees 34 minutes 00 seconds for an arc distance of 149.57 feet to a Point of Tangency; thence South for 293.50 feet (said last mentioned four courses being coincident with the boundary lines of said Tract D); thence East for 179.41 feet; thence North for 150.00 feet; thence East for 525.36 feet; thence North for 0 degrees 04 minutes 07 seconds West along the East line of said Tract D for 300.00 feet to the Point of Beginning, lying and being in the City of Miami, Dade County, Florida. Lots 1 through 8, both inclusive, in Block 2 (being the whole of said Block 2), of DUPONT PLAZA, according to the Plat thereof, as recorded in Plat Book 50, at Page 11, of the Public Records of Dade County, Florida. Blocks 3 & 4 of DUPONT PLAZA according to the plat thereof, recorded in Plat Book 50, Page 11, of the Public Records of Dade County, Florida. App. C-37 SECOND AMENDMENT TO HYPOTHECATION AND SECURITY AGREEMENT THIS SECOND AMENDMENT TO HYPOTHECATION AND SECURITY AGREEMENT (“Second Amendment”) dated as of the 23rd day of June, 1983 to the Hypothecation and Security Agreement dated May 14, 1981, as modified by a certain letter dated November 17, 1982 from Theodore B. Gould, Miami Center Limited Partnership and Chopin Associates to The Bank of New York and as amended by the First Amendment to the Hypothecation and Security Agreement dated January 20, 1983 among Theodore B. Gould (“Gould”), Miami Center Limited Partnership (“Borrower’’) and The Bank of New York (““Lender’’) as amended by First Amendment to Hypothecation and Security Agreement dated January 20, 1983 (the “as so modified and amended Agreement”’). WITNESSETH: WHEREAS, Lender is about to make a loan to Borrower and Chopin Associates (“Chopin”) in an amount not exceeding $5,300,000 or such lesser sum as Lender in its sole discretion may choose to lend (the “Loan”’); and WHEREAS, the Loan will be evidenced by a note dated June 23, 1983 in the aggregate principal amount of $5,300,000 made by Borrower and Chopin to Lender, which note will be secured by, among other things, a Building Loan Mortgage, Assignment of Leases and Rents and Security Agreement dated June 23, 1983 by Borrower and Chopin to Lender; and WHEREAS, Lender has indicated that it will not make the Loan unless Gould and Borrower execute and deliver this Second Amendment to Lender; and App. C-38 WHEREAS, in order to induce Lender tc make the Loan Borrower and Gould have agreed to execute and deliver this Second Amendment to Lender; NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower and Gould hereby agree as follows: 1. There shall be added to Schedule A of the Agreement, immediately following paragraph 8, the following paragraph: “9. All right title and interest of Gould (or any entity in which Gould has or obtains an interest) to any and all property, real or otherwise, resulting from or arising out of any judgment or award made in the arbitration between Gould and Olympia & York entitled, “In the Matter of the Arbitration between Theodore B. Gould, Claimants, and Olympia & York Florida Equity Corporation and O & Y Equity Corporation, Respondents, American Arbitration Association Tribunal No. 13-115-0547-82.” 2. There shall be added to Section 5 of the Agreement, immediately following subparagraph (k), the following subparagraph: (1) Neither Gould (nor any entity in which Gould has or obtains an interest) shall transfer, sell or in any manner dispose of, any property, real or otherwise, referred to in paragraph 8 of Schedule A. 3. Gould hereby ratifies and confirms his hypothecation to the Borrower of all of his right, title and interest in and to the Collateral and the Borrower hereby ratifies and confirms its assignment and grant of security interest to the Lender in and to the Collateral. /s) THEODORE B. GOULD Theodore B. Gould MIAMI CENTER LIMITED PARTNERSHIP By: Miami Center Corporation, General Partner By: /s/ THEODORE B. GOULD Theodore B. Gould, President By: /s/ THEODORE B. GOULD Theodore B. Gould, General Partner App. C-40 EXHIBIT “‘B”’ ASSIGNMENT AND SECURITY AGREEMENT THIS ASSIGNMENT, made this 23rd day of June, 1983 by HOLYWELL CORPORATION, a Delaware corporation having its principal offices at 1300 North 17th Street, Arlington, Virginia 22209 (the “Company”’) to THE BANK OF NEW YORK, a New York banking corporation having its principal offices at 48 Wall Street, New York, New York 10015 (the “Bank”’) (the “Agreement”’). WHEREAS, pursuant to a certain Building Loan Agreement, dated as of March 27, 1980, as amended, by and between Miami Center Limited Partnership (““MCLP”’) and Charter Mortgage Company (“Charter”’) (the “BLA”), which BLA was assigned by Charter to the Bank, and pursuant to a certain Land Loan Agreement, dated as of March 27, 1980, as amended, by and between Chopin Associates (““Chopin’’) and Charter (the “LLA”’), which LLA was assigned by Charter to the Bank, the Bank has made mortgage loans in the aggregate principal sum of $173,500,000.00 to Chopin and MCLP for the purpose of funding the cost of acquisition of certain land located in Miami, Florida and the cost of construction of the improvements built or to be built (the “Improvements’’) on the Land and other costs in connection therewith (the “Construction Loan”); and WHEREAS, Miami Center Corporation, a Florida corporation (“Miami Center Corp.”), is a general partner of both MCLP and Chopin; and WHEREAS, the Company is the owner of 100% of the issued and outstanding shares of capital stock of Miami Center Corp.; and WHEREAS, pursuant to certain guarantees of payment made by the Company, Miami Center Corp. and Theodore B. Gould (“Gould”) to the Bank (the “Guarantees’’), the App. C-41 Company has guaranteed the prompt payment when due of all principal and interest due on the Construction Loan; and WHEREAS, MCLP is unable to complete construction of the Improvements as described iri the BLA for the amount of the Construction Loan; and WHEREAS, MCLP and Chopin have requested the Bank to make an additional loan to MCLP and Chopin in an amount not to exceed $8,300,000 (the “Loan”’) which Loan shall be secured by, among other things, a mortgage or mortgages given by Chopin and MCLP on certain land and other property described therein, a Guarantee of Payment executed and delivered to the Bank by the Company, Gould and Miami Center Corp., and which Loan shall be evidenced by a Note or Notes given by MCLP and Chopin to the Bank (the “Note”); and WHEREAS, the Bank has indicated that it will not make the Loan without this Agreement; and WHEREAS, as security for the payment and performance of all of the obligations of the Company now or hereafter arising under the Guarantees of Payment of the Construction Loan and the Loan, executed and delivered by the Company to the Bank (the “Obligations”) the Company wishes to assign to the Bank a continuing first priority security interest in ‘* the Collateral, as hereinafter defined. NOW, THEREFORE, in consideration of the premises, the mutual covenants, terms and conditions herein contained and for other good and valuable consideration, the receipt ead sufficiency of which are hereby acknowledged, the “empany hereby covenants ar- agrees as follows: 1. Definitions: Unless the context hereof otherwise requires, the following terms shall have the following meanings, such definitions to be applicable equally to the singular and plural forms: App. C-42 ee EE Ah I \- “Lien” shall mean any lien, mortgage, pledge, assignment, security interest, charge or other encumbrance of any kind, or the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement. | “Partnership Agreements’ shall mean (a) the Agreement of Limited Partnership of 1300 North 17th Street Associates, as amended to date, (b) the Eleventh Dupont Circle Associates Agreement of Limited Partnership, as amended to date, (c) the 1616 Reminc Limited Partnership Limited Partnership Agreement, as amended to date, (d) the Agreement of Limited Partnership of 1333 New Hampshire Associates, as amended to date, (e) the Dupont Land Associates Agreement of Limited Partnership, as amended to date. “Person” shall mean any individual, corporation, partnership, trust, governmental body, joint venture or other entity, whether acting in a fiduciary capacity or otherwise. “Property” shall mean all personal, real or mixed property, tangible or intangible. “Subsidiary” shall mean any corporation, association, partnership, joint venture or other business entity of which the Company and/or any subsidiary of the Company either (a) in respect of a corporation, owns any outstanding stock or (b) in respect of an association, partnership, joint venture or other business entity, is entitled to share in any of the profits and losses, however determined. 2. Assignment and Grant of Security Interest: As collateral security for the payment and performance of the Obligations, the Company hereby pledges, assigns and grants to the Bank a continuing first security interest in and to the following: (a) all right, title and interest of the Company in and to the following securities, all of the which shall hereinafter App. C-43 PURCHASE AGREEMENT THIS AGREEMENT is made, effective for all purposes and in all respects as of the 11th day of February, 1985, by and between (i) Hadid Investment Group, Inc., Trustee (hereinafter sometimes “Purchaser’’), and (ii) Miami Center Limited Partnership (‘““MCLP’’), a Florida limited partnership, and Chopin Associates (“Chopin”), a Florida general partnership, (hereinafter sometimes collectively referred to as “Sellers’’). WHEREAS, Chopin holds fee simple title to that tract or parcel of land situated in Dade County, Florida and described in Exhibit A annexed hereto as weil as a Lessor’s interest in that certain long-term Ground Lease dated March 27, 1980 (the ‘‘Ground Lease’’) and MCLP holds title to the improvements located on said parcel and a Leasehold interest in said parcel pursuant to the Ground Lease (such interest of Sellers hereinafter sometimes collectively referred to as “the Property’’); and WHEREAS, Purchaser desires to buy, and Sellers desire to sell the Property in accordance with the terms and conditions set forth herein: 1. Agreement of Purchase and Sale. Sellers hereby agree to sell and convey the Property and Purchaser hereby agrees to purchase the Property in accordance with the terms and provisions hereof. 2. Terms and Payment. (a) Purchase Price. The purchase price shall be TWO HUNDRED SIXTY MILLION DOLLARS NET ($260,000,000), payable as follows: (b) Deposit. (i) Purchaser will simultaneously with the execution hereof by all parties deposit with National Real Estate Title Company, as “Escrow Agent”, the sum of FIVE App. F-28 MILLION DOLLARS ($5,000,000) as a ““Deposit” hereunder in the form of a Promissory Note payable to Sellers upon the expiration of the “Study Period” under paragraph 3(e). The Deposit shall be applied as part payment of the cash portion of the purchase price when paid at Settlement. The Deposit is to be held by Escrow Agent until Settlement or until other disposition is made thereof as herein provided. At Purchaser’s option, the Deposit may be in the form of an unconditional irrevocable letter of credit in form and substance and from a financial institution acceptable to Sellers. The initial Promissory Note shall be converted to a Deposit in the form of cash or such a letter of credit upon the expiration of the “Study Period’’. (ii) The Deposit shall be invested in interest bearing securities to be selected by Purchaser, and interest earned thereon shall be paid to the party who ultimately receives the Deposit. Escrow Agent signs this Contract to evidence receipt of the Deposit and agrees to be bound by the terms hereof. (c) The balance of the purchase price shall be paid in cash at closing, by wire transfer or other form of certified funds specified by Sellers. (d) Escrow for Uncompleted Tenant Fit-Up and Hotel Construction. From the proceeds of the purchase price to be paid in cash at closing, there shall be deposited in escrow with the Title Company an amount reasonably estimated by Sellers to substantially complete in-process building standard finishes in the Pavillon Hotel, which fit-ups and finishes are currently being performed by Sellers (hereinafter the “Outstanding Finish Work”). The Escrow Agent shall invest the deposited sum for the benefit of Sellers, as directed by Sellers. Purchaser shall be entitled to apply the said funds in reimbursement for the actual and necessary costs of completing the Outstanding Finish Work after submitting a requisition to Sellers’ architect for approval and then to the Escrow Agent. Upon the occurrence of the earlier of (i) App. F-29 certification by Sellers’ architect that the Outstanding Finish Work has been substantially completed or (ii) one year from closing, the Escrow Agent shall pay over free and clear to the Sellers the balance of all funds then being held in escrow. 9 3. Settlement. (a) Date. Settlement in accordance with the terms thereof shall take place on or before August 15, 1985 (hereinafter the “Settlement Date” or “Closing Date’’). Settlement shall take place at the office of Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey, 1120 Connecticut Avenue, NW, Washington, DC 20036, at 10:00 a.m. Settlement shall mean the execution of all documents contemplated hereby and the delivery of (i) the documents to those parties respectively entitled to the documents, and (ii) the documents to be recorded to the Title Company. The term “Settlement” shall be used interchangeably with the words “Closing”, “settlement” and “closing”. The parties may, by mutual agreement in writing, change the place, date or time of settlement. (b) Costs. Examination of title to the property, documentary stamps on the deed, recording, notary fees, surveys, title insurance premiums, Title Company charges, if any, and all other settlement costs shall be at the expense of Sellers. Purchaser shall only be responsible for its own legal fees. (c) Deed. At settlement, Sellers and any other necessary person shall deliver to Purchaser a good and sufficient special warranty deed, duly executed and acknowledged by all parties deemed necessary by the Title Company, conveying the Property. (d) Tender of Performance. It shall be a good and sufficient tender of performance of the terms hereof by either of the parties if such party deposits with the Title Company originals of the documents to be executed by such party. App. F-30 a i ct oll DO (e) As long as it does not interfere with the normal operation of the Property, Sellers will give Purchaser, its architects, engineers, attorneys, accountants and other consultants or representatives, during normal business hours and as often as may be reasonably requested until May 12, 1985 (the “Study Period”’) full access to the Property to make engineering studies and the like, and will furnish to Purchaser all documents and information concerning the Property which Purchaser shall reasonably request, including all such documents, financial statements and books and records pertaining to the operation of the Property. In the event that the studies or other investigations are not satisfactory to Purchaser, Purchaser shall have the right to terminate this Agreement on or before the expiration of the Study Period, the deposit referred to in paragraph 2(b) above shall be returned immediately to Purchaser, and thereafter Sellers and Purchaser shall be released of any further liability to the other. In the event Sellers have not provided an acceptable Title Report, as described in paragraph 5(bXiv) prior to May 12, 1985, Purchaser shall have the right, upon written notice, to extend the expiration of the Study Period until September 12, 1985, in which event the Closing Date shall also be extended until September 12, 1985. 4. Default. (a) If Purchaser shall fail to settle on the Settlement Date in accordance with the provisions hereof, for any reason whatsoever other than Sellers’ failure or refusal to settle hereunder, or Sellers’ inability to comply with their obligations hereunder, then and in that event damages being unascertainable, the Deposit shall be forfeited, this Agreement shall be null and void, and neither Purchaser nor Sellers shall have any further liability hereunder, retention of the Deposit being Sellers’ sole remedy. (b) If Purchaser shall tender performance but due to Sellers’ failure or refusal to settle, settlement does not occur at the appointed date and time, Purchaser shall have the App. F-31 right to the remedy of specific performance or a return of the Deposit; Purchaser shall not have the right to a suit for damages, in the event the Purchaser elects the return of the Deposit, then this contract shall be null and void and neither Purchaser nor Sellers shall have any further liability hereunder, a return of the Deposit being Purchaser’s sole remedy. 5. Conditions Precedent to Purchaser’s Obligation. Purchaser’s obligation to make settlement hereunder is subject to the satisfaction of the following conditions, any of which may be waived by Purchaser, at the time of settlement. (a) Warranties. The covenants, warranties and representations made by Seller in paragraph 10 hereof, and elsewhere in this Agreement, shall be true and correct. (b) Title to the Property. Fee simple title good of record and in fact to the Property, subject to the provisions of paragraph 9, shall be in the Sellers. The Seller shall: (i) Bethe owner of record and in fact, legally and beneficially of the aforementioned property; (ii) Have the rights to transfer the Property owned by it without the agreement of any other person; (iii) Have fee simple title to the Property owned by it that is good and marketable, insurance at standard rates on the latest standard American Land Title Association owner’s policy form B; and (iv) Purchaser shall immediately order a title report on the Property by a title company located in Miami, Florida (the “Title Company”) of Purchaser’s choice. Anything in this Agreement to the contrary notwithstanding at any time during the period thirty (30) days after Purchaser receives such title report, Purchaser may notify Seller that title to the Property is not acceptable, whereupon this Contract shall be terminated, Purchaser shall be entitled to App. #-32 the immediate return of the Deposit and Seller and Purchaser shall have no further liability hereunder; provided that, any condition which is specified in paragraph 5 hereof, or which is noted on the list of “Permitted Exceptions” attached as Exhibit B hereto, or which may be removed or discharged by payment of the Purchase Price shall not be considered an unacceptable condition. If Purchaser does not so notify Sellers within the said thirty (30) day period, Purchaser shall be deemed to have accepted title as shown on the aforesaid title report. (c) If at the date of closing title is not in the exact condition described in the title report ordered and accepted by Purchaser, Purchaser shall have the right to declare this contract null and void and receive a return of its Deposit. (d) Sellers shall have no obligations as of the Settlement Date under any hotel Management and Operating Agreement for the Pavillon Hotel. (e) Specified Conditions Not Present. At closing, Sellers shall have no knowledge of, and there shall not be any: (i) Proposed or pending proceedings to modify the zoning classification of, to condemn, or purchase in lieu thereof, all or any substantial part of any of the Property. (ii) Commitments made by Seller to any governmental or quasi-governmental authority, or other third party to dedicate or grant any portion of any of the Property for any public or semi-public purpose or to incur any other obligation or expense respecting the Property, except those disclosed in the Ball Point Development Order, as the same was amended and is to be amended, unless Purchaser has consented specifically thereto in writing. (iii) Any other impediments which will significantly interfere with Purchaser’s use or disposition of the Property. App. F-33 (f) Remedies of Purchaser. If any condition of Purchaser’s obligation to conclude settlement is not satisfied, Purchaser shall have the right, to be exercised not later than the date of Settlement, either to (i) proceed to Settlement, or (ii) terminate this Agreement, whereupon the Deposit shall be immediately returned to Purchaser. 6. Liens and Encumbrances. The premises are sold and are to be conveyed subject to: (a) Zoning and building regulations, ordinances, and requirements adopted by any government or municipal authority having jurisdiction thereof, and amendments and additions thereto nor or hereafter in force and effect, which relate to the premises. (b) Any state of facts as shown on the survey provided to Purchaser by Sellers. (c) Rights of tenants under and subject to existing leases with such tenants, which have been exhibited to the Purchaser and examined by the Purchaser, and the Purchaser hereby approves the forms and terms thereof, and such other new tenancies as are permitted in this contract. The Purchaser assumes the obligations of the landlord under such leases after delivery of the deed, and agrees to hold the Sellers harmless from any claims in connection with such leases arising after delivery of the deed; and further agrees that this assumption and indemnity shall survive the closing of title. 7. Past Due Rent. If any past due rentals (including “Additional Rent” charges under the leases) are owing by tenants at the time of closing of title and to all or part of such past due rentals are attributable to the period of time prior to closing, the first moneys received by the Purchaser from the tenants owing such past due rentals shall be received by the Purchaser as trustee for the Sellers on account or in payment of such past due rentals, and the Purchaser shall remit forthwith to the Sellers the amount of such past due App. F-34 rentals to which the Sellers are entitled, so collected, out of the first moneys received by the Purchaser, provided, however, that the Purchaser shall have the right to deduct therefrom any collection fees. This provision shall survive delivery of the deed. 8. Items to be Apportioned. The foliowing are to be apportioned as of the date of the delivery of the deed: (a) Rents as and when collected. ‘b) Premiums on existing transferable insurance policies or renewals of those expiring prior to closing. (c) Real estate taxes and sewer rents, if any, on the basis of the fiscal year for which assessed. If the closing of the title shall occur before the tax rate is fixed, the apportionment of taxes shall be upon the basis of the tax rate for the next preceding year applied to the latest assessed valuation. (d) Water and other utility charges. If there is a water meter or other meter on the premises, any unfixed meter charges and unfixed sewer rents, if any, shall be apportioned on the basis of the last reading. 9. Outstanding Security Interests. If on the date of closing there shall be financing statements which were filed on a day more than three years prior to closing of title, these shall not be deemed to be an objection to title, provided the Sellers execute and deliver to the Purchaser an affidavit setting forth that the property covered by such financing statements is no longer in the premises; or if such property still is in the premises, that such property has been fully paid for. Financing statements or other encumbrances, although filed against the premises but affecting a tenant or which are the obligation of any tenant, shall be no objection to title. 10. Representations and Warranties of Sellers. Sellers jointly and severally warrant and represent the following, App. F-35 which are true and correct and shall be true and correct as of the Settlement Date, and shall survive closing hereunder. (a) Authority. The Sellers have full power and authority to enter into this Agreement and to assume and perform all of their obligations thereunder. (b) All public utilities required for the operation of the Property, or any part thereof, either enter the Property through adjoining public streets or if they pass through adjoining private land do so in accordance with valid public easements or private easements which will inure to the benefit of Purchaser. (c) There are no pending or threatened assessment, condemnation or eminent domain proceedings which would affect the Property, or any substantial part thereof. 11. Condemnation. If, prior to the Closing Date, condemnation or eminent domain proceedings shall be commenced by any competent public authority against the Property or any substantial part thereof, Sellers shall promptly give Purchaser written notice thereof. After notice from Sellers of the commencement of any such proceedings and in the event that the taking of such property shall materially interfere with the operation of the Property, Purchaser shall have the right (i) to accept the Property subject to the proceedings, whereupon any award shall be paid to Purchaser, and Sellers shall deliver to Purchaser at Closing all assignments and other documents reasonably requested by Purchaser to vest such award in Purchaser or (ii) to rescind this Agreement and neither party will have any further obligations hereunder. 12. Documents at Closing. Sellers shall execute and deliver to Purchaser on the Closing Date, if Purchaser so requests: (a) The Deed referred to above. App. F-36 (b) An assignment (with assumption by Purchaser) of Sellers’ interest in the Tenant Leases and the Ground Lease. (c) An affidavit affirming that no work has been performed or materials supplied that could result in mechanic’s liens on the Property. 13. Sellers’ Obligations Pending Closing. Between the date hereof and the Closing Date Seller shall: (a) Operate the hotel and office building on the Property in the same manner as prior to the date hereof. (b) Comply with all state and municipal laws, ordinances, regulations, and orders relating to the Property. (c) Promptly give written notice to Purchaser of the occurrence of any event materially affecting the substance of the representations made hereunder. 14. Broker. Each party warrants and represents that it has not engaged any agent or broker with respect to this transaction and agrees to hold harmless each other against such brokerage claims. 15. Notices. Any notices to be given hereunder shall be given in writing by mail, first class, postage prepaid, return receipt requested, or by delivery, addressed to: (a) If to Sellers to: Theodore B. Gould 300 Miami Center 100 Chopin Plaza Miami, FL 33131 With a copy to: Robert C. Nichols, Esq. Kent, Watts & Durden P.O. Box 4700 Jacksonville, FL 32201 App. F-37 (b) If to Purchaser to: Hadid Investment Group, Inc., Trustee c/o Mohammed A. Hadid, President 1655 North Fort Myer Drive Arlington, VA 22209 With a copy to: Mitchell Cutler, Esq. Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey 1120 Connecticut Avenue, NW Washington, DC 20036 or such other addresses as may be designated by the respective parties in writing. Any notices given pursuant to this paragraph shall be deemed given when received or delivered. 16. Other Provisions. (a) Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and the heirs, successors, legal representatives and assigns of the respective parties. (b) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. (c) Headings. The captions and headings herein are for convenience and reference only and in no way define or limit the scope or content of this Agreement or in any way effect its provisions. (d) Exhibits. The Exhibits which are attached hereto are hereby made a part of this Agreement as fully as if set forth in the text of this Agreement. (e) Entire Agreement. This Agreement and the Exhibits attached hereto contain the final and entire App. F-38 Agreement between the parties hereto with respect to the matters set forth hereby, and are intended to be an integration of all prior negotiations and understandings. No change or modification of this Agreement shall be valid unless the same is in writing and signed by the parties hereto. No waiver of any of the provisions of this Agreement shall be valid unless the same is in writing and is signed by the party against which it is sought to be enforced. (f) Gender. The use of any gender herein shall be deemed to be or include the other gender and the use of the singular herein shall be deemed to be or include the plural and vice versa, wherever appropriate. 17. Bankruptcy Court Approval. Notwithstanding the provisions contained herein, the obligations of the parties hereto are expressly conditioned upon a determination and the issuance of a final order (the “Final Order’’) that Sellers, as Debtors in Possession, have the authority to (i) execute this Contract and (ii) close on the transaction contemplated by this Contract. “Final Order” shall mean (i) the entry of an order by the United States Bankruptcy Court for the Southern District of Florida (the “Bankruptcy Court’), assuming the Bankruptcy Court has jurisdiction to render such an order, and, if not, the United States District Court for the Southern District of Florida (the “District Court”), and (ii) the running of time period within which an appeal may be taken from the entry of such order by the Bankruptcy Court or District Court, respectively, without such an appeal being taken, or the exhaustion of all appeals from such order of the Bankruptcy Court or District Court, respectively, provided that such appeals result in the approval of the Bankruptcy Court’s or District Court’s, respectively, order. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals effective for all purposes and in all respects as of the day and year first above written. App. F-39 Signed, sealed and delivered in the presence of: (illegible) /s/ Yvonne Page [illegible] [illegible] DEPOSIT ACCEPTED: NATIONAL REAL ESTATE TITLE CORPORATION By [illegible] SELLERS: MIAMI CENTER LIMITED PARTNERSHIP, a Florida limited partnership By [illegible] Genera! Partner CHOPIN ASSOCIATES, a Florida limited partnership Partner PURCHASER: HADID INVESTMENT GROUP, INC., Trustee President App. F-40 EXHIBIT “‘A”’ LEGAL DESCRIPTION Being that portion of Tract D, Block 1, “du Pont Plaza” according to the plat thereof as recorded in Plat Book 50 at Page 11 of the Public Records of Dade County, Florida, being more particularly described as follows: Begin at the Northeast corner of said Tract “D” and run West along the North line of Tract “D”’ for 645.94 feet to a Point of Curvature; thence Southwesterly along a circular curve to the left having a radius of 25.00 feet and a central angle of 61 degrees 26 minutes 00 seconds for an arc distance of 26.81 feet to a Point of Compound Curvature; thence Southerly along a circular curve to the left having a radius of 300.00 feet and a central angle of 28 degrees 34 minutes 00 seconds for an arc distance of 149.57 feet to a Point of Tangency; thence South for 293.50 feet (said last mentioned four courses being coincident with the boundary lines of said Tract “‘D”’); thence East for 179.41 feet; thence North for 150.00 feet; thence East for 525.36 feet; thence North 0 degrees 04 minutes 07 seconds West along the East line of said Tract “D” for 300.00 feet to the Point of Beginning, lying and being in the City of Miami, Dade County, Florida. — App. F-41 EXHIBIT “B”’ Permitted Exceptions 1. Taxes for the year 1985 and subsequent years. . That portion of the Property lying seaward of the steel sheet piling as shown on that certain Sketch of Survey prepared by Schwebke-Shiskin & Associates, Inc., dated February 14, 1979, at File No. AJ-1485 (the “Sketch of Survey”). . The following matters as shown in the Sketch [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2032%3A4. Public record. Not legal advice.