SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
-------------
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 18, 2000
SL GREEN REALTY CORP.
(Exact Name of Registrant as specified in its Charter)
Maryland
(State of Incorporation)
1-13199 13-3956775
(Commission File Number) (IRS Employer Id. Number)
420 Lexington Avenue 10170
New York, New York (Zip Code)
(Address of principal executive offices)
(212) 594-2700
(Registrant's telephone number, including area code)
<PAGE>
Item 2. Acquisition or Disposition of Assets
SL Green Realty Corp. (the "Company"), through its affiliate, SL Green
100 Park LLC, ("Green 100") purchased a 49.9% interest in a joint venture
which owns the building known as 100 Park Avenue, New York, New York ("100
Park").
The joint venture is known as SLG 100 Park, LLC ("Park LLC"). The
Company, through Green 100, owns 49.9% of Park LLC. The Prudential Insurance
Company of America ("Prudential") owns the remaining 50.1%. 100 Park is
encumbered by a first mortgage held by Prudential in the amount of $112
million for a two-year term at a fixed rate of interest. Green 100 paid
approximately $39.9 million in cash and, through its interest in the joint
venture, assumed 49.9% of the first mortgage, in connection with the
acquisition, which was funded through the Company's credit facility.
100 Park is a 36-story Midtown Manhattan property located on Park Avenue
between 40th and 41st Streets. The property contains 833,819 square feet of
rentable space and is currently 97% leased.
The property is leased to a roster of 35 quality tenants including:
Philip Morris, J&W Seligman, Interep National Radio Sales, MCI Worldcom,
Kreindler & Kreindler, Goodkind, Labaton, Rudoff & Sucharow, Laidlaw Holdings,
Inc., Mass Mutual Life Insurance and Davis, Scott & Edwards.
SL Green Management Corp. entered into a management contract with Park
LLC to provide the property management and leasing services to 100 Park.
<PAGE>
Item 7. Financial Statements and Exhibits
(a) and (b) Financial Statements of Property Acquired
and Pro Forma Financial Information
None required.
(c) Exhibits
2.1 Form of Purchase and Sale Agreement between The Prudential Insurance
Company of America, as Seller, and SL Green 100 Park LLC, as Buyer.
2.2 Form of Second Amended and Restated Operating Agreement of SLG 100
Park LLC between The Prudential Insurance Company of America and SL
Green 100 Park LLC.
2.3 Form of Agreement of Spreader, Consolidation and Modification of
Mortgage by SLG 100 Park LLC, as Borrower, to The Prudential Insurance
Company of America, as Lender.
2.4 Form of Amended, Restated and Consolidated Mortgage Note by SLG 100
Park LLC, as Borrower, to The Prudential Insurance Company of America,
as Lender.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SL GREEN REALTY CORP.
By: /S/ Benjamin P. Feldman
_______________________
Benjamin P. Feldman
Executive Vice President
and General Counsel
Date: March 3, 2000
Exhibit 2.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "AGREEMENT") is made as of this 19th day
of November, 1999, by and between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a
New Jersey corporation ("SELLER"), and SL GREEN 100 PARK LLC, a New York limited
liability company ("BUYER").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements set forth herein and
good and other valuable consideration, the receipt and adequacy of which is
hereby conclusively acknowledged, the parties hereto agree as follows:
ARTICLE 1
SALE OF PROPERTY; SALE OF INTERESTS
On the Closing Date and immediately prior to Buyer's purchase of the Interests
from Seller, Seller will form a Delaware limited liability company (the
"COMPANY") with a wholly-owned subsidiary of Seller. Seller hereby agrees to
sell, transfer and assign to the Company, subject to the terms and conditions
stated herein, the property described in Sections 1.1 through 1.3 inclusive
(collectively, the "PROPERTY"), subject to the lien of the Existing Mortgage.
Immediately following the transfer of the Property to the Company, Seller shall
cause its wholly-owned subsidiary to sell, transfer and assign to Buyer and
Buyer agrees to purchase, accept and assume, subject to the terms and conditions
stated herein, a 49.9% membership interest in the Company (the "INTERESTS") and
simultaneously therewith, the operating agreement of the Company shall be
amended and restated (as so amended and restated, the "OPERATING AGREEMENT") in
the form of EXHIBIT C. The transactions contemplated herein, including the
transfer of the Property to the Company and the transfer of the Interests to
Buyer, are referred to herein collectively as the "TRANSACTIONS". The Property
to be conveyed to the Company consists of:
.1 Real Property. That certain parcel of real estate commonly referred to
as 100 Park Avenue, New York, New York and more particularly described in
EXHIBIT A, together with all buildings, improvements and fixtures located
thereon and all rights, privileges and appurtenances pertaining thereto
including all of Seller's right, title and interest in and to all rights-of-way,
open or proposed streets, alleys, easements, strips or gores of land adjacent
thereto (collectively, called the "REAL PROPERTY"); and
.2 Personal Property. All tangible personal property owned by Seller
(excluding any computer software that either is licensed to Seller or Seller
deems proprietary or confidential), located on the Real Property and used in the
ownership, operation and maintenance of the Real Property and all
non-confidential books, records and files (excluding any internal appraisals,
budgets, strategic plans for the Real Property, internal analyses, marketing
information, submissions relating to Seller's obtaining of corporate
authorization, attorney and accountant work product, attorney-client privileged
documents, or other information in the possession or control of Seller or
Seller's property manager that Seller reasonably deems proprietary or
confidential) relating to the Real Property (herein collectively called the
"PERSONAL PROPERTY"); and
.3 Other Property Rights. (a) Seller's interest as landlord in all leases
for tenants of the Real Property on the Closing Date (herein collectively called
the "LEASES"); and (b) if and to the extent assignable by Seller without any
expense or liability to Seller, (i) all service, supply, maintenance, utility
and commission agreements, all equipment leases, and any additional service,
supply, maintenance or utility contracts entered into in accordance with the
terms of Subsection 9.2.1 (all of the foregoing being herein collectively called
the "CONTRACTS" and, except to the extent entered into in accordance with
Subsection 9.2.1, listed in EXHIBIT B), and (ii) to the extent that the same
have been obtained by Seller prior to the Closing, any licenses, permits and
other written authorizations necessary for the use, operation or ownership of
the Real Property or Personal Property (the rights and interests of Seller
described in Subsections 1.3(a) and (b), collectively the "OTHER PROPERTY
RIGHTS").
ARTICLE 2
PURCHASE PRICE AND ASSIGNMENT OF EXISTING MORTGAGE
.1 Purchase Price. The total purchase price to be paid by Buyer for the
purchase of the Interests (the "PURCHASE PRICE") is THIRTY NINE MILLION NINE
HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS ($39,920,000.00), payable in cash as
described in Sections 2.2 and 2.3.
.2 Deposit Money. Upon the date of the full and final execution of this
Agreement (such date, the "CONTRACT DATE"), and as a condition precedent to the
effectiveness of this Agreement, Buyer shall deposit SEVEN MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($7,500,000.00) (the "DEPOSIT") at Buyer's option,
either (a) in immediately available funds, or (b) in the form of an
unconditional, irrevocable, direct pay letter of credit issued by a financial
institution reasonably satisfactory to Seller, meeting the requirements of
Section 12.4 and otherwise in ------------ form and substance reasonably
satisfactory to Seller, such letter of credit together with any amendments,
modifications, extensions, renewals or replacements thereof (the "LETTER OF
Credit"), with O'Melveny & Myers LLP, as escrow agent (the "ESCROW AGENT"). The
Deposit shall be non-refundable except as herein provided and shall be held and
delivered by Escrow Agent in accordance with the provisions of Article 12. Any
interest earned on the Deposit, if made in ---------- cash, shall be considered
a part of the Deposit. Except as expressly otherwise set forth herein, the
Deposit, if made in cash, shall be applied against the Purchase Price on the
Closing Date.
.3 Closing Payments and Deliveries. Upon the closing of the Transactions
(the "CLOSING"), Buyer shall pay to Seller (a) THIRTY NINE MILLION NINE HUNDRED
TWENTY THOUSAND AND NO/100 DOLLARS ($39,920,000.00) (less the Deposit, if made
in cash, together with any interest thereon, all of which shall be released by
Escrow Agent to Seller at the Closing subject to the prorations and adjustments
in accordance with the provisions of Article 5 or as otherwise provided under
this Agreement, it being understood that any letter of credit in respect of the
Deposit shall be returned by Escrow Agent to Buyer at the Closing without any
credit against the Purchase Price), plus (b) any other amounts required to be
paid by Buyer at the Closing. All amounts to be paid by Buyer to Seller shall be
paid in U.S. dollars by wire transfer of immediately available funds to an
account or accounts designated by Seller and as more particularly set forth in
Section 6.2.
.4 [Intentionally Omitted].
.5 Assignment of Existing Mortgage Loan; New Mortgage Loan.
(a) Assignment of Existing Mortgage. Title to the Property is subject
to that certain mortgage dated March 30, 1990 (the "EXISTING MORTGAGE") and
related loan documents executed by Seller in favor of Asahi International Ltd.,
as assigned to 745 Property Investments (the "EXISTING LENDER") pursuant to that
certain Assignment of Mortgage and Security Agreement and the General Assignment
each dated as of March 1, 1999. At the Closing, the Company shall pay, or cause
to be paid, to Existing Lender an amount equal to the then outstanding principal
amount of the Existing Mortgage Loan (which at Closing shall be One Hundred
Twelve Million Dollars ($112,000,000)) in full consideration for an assignment
of the Existing Mortgage Loan described in this Subsection. Seller shall cause
Existing Lender to assign the Existing Mortgage and the related Promissory Note
(the "EXISTING NOTE") to the holder of the Mortgage Loan (as described below)
pursuant to the Assignment of Existing Note and Mortgage in the form of EXHIBIT
M. None of Seller, Existing Lender, any affiliate of Seller, any affiliate of
Existing Lender or the Company will be required to make any affidavits or
representations in respect of the Existing Mortgage or the assignment thereof
(other than with respect to the outstanding principal amount of the Existing
Mortgage and as set forth in Subsection 8.2.2(m)); it being agreed by Buyer and
Seller that Seller shall cause Existing Lender to assign the Existing Mortgage
without recourse, representation or warranty to the holder of the Mortgage Loan
on the Closing Date pursuant to the requirements in this Section 2.5.
(b) New Mortgage Loan. Buyer and Seller, on behalf of the Company,
shall obtain part or all of the sums necessary to make the payment to Existing
Lender by obtaining first mortgage financing in an original principal amount not
less than One Hundred Ten Million Dollars ($110,000,000) and not more than One
Hundred Twenty Million Dollars ($120,000,000) from a life insurance company, a
money center bank, an investment bank (either directly or acting through its
loan origination subsidiary) or an equivalent institutional lender (any such
entity, an "APPROVED LENDER," the Approved Lender making the Mortgage Loan, the
"LENDER"), which loan shall (i) have a term of not less than seven (7) years,
(ii) bear a fixed rate of interest at the prevailing market rate for loans of
equivalent size and equivalent loan-to-value ratio, and (iii) be secured only by
a first mortgage lien on the Property and a related assignment of leases and
rents, fixture filings and a security agreement with respect to the Personal
Property (the "MORTGAGE LOAN"). Seller's consent to the Mortgage Loan shall be
conditioned upon obtaining the approval of the Investment Committee of
Prudential Real Estate Investors. The obligations under the related mortgage
loan documentation shall be non-recourse, other than recourse to the Company,
Buyer and/or Seller (and as to the Seller's liability, such liability will be
limited to the assets of PRISA) that may result from non-recourse carve-out
provisions customary for loans of a similar size and loan-to-value ratio;
provided that the liability to Buyer or Seller, as the case may be, pursuant to
such non-recourse carve-out provisions shall be several (it being understood and
agreed that each party shall be responsible for, and shall indemnify the other
from, all such costs, expenses and liabilities attributable to its actions or
omissions).
(c) Costs. Except as otherwise expressly set forth in this Agreement,
the Company shall bear all reasonable costs and expenses associated with the
origination of the Mortgage Loan incurred by Buyer, Seller or their respective
predecessors in interest on or after October 5, 1999 (all such costs and
expenses, collectively, the "SHARED MORTGAGE LOAN EXPENSES"), including loan
application fees, commitment fees, all premiums and charges in connection with
the Lender's title insurance policy (including appropriate endorsements), the
costs of preparing or updating the survey, mortgage broker fees (not to exceed
an amount mutually satisfactory to Buyer and Seller), the costs associated with
any interest rate swap agreement, and any Excess Mortgage Recording Tax. Buyer
and Seller shall cooperate with all reasonable requests made by the other and
mutually satisfactory prospective lenders in arranging for the Mortgage Loan;
provided that neither Buyer nor Seller shall be under any obligation to provide
or disclose any proprietary, confidential or privileged information or assume or
incur any costs, expenses or liabilities in connection therewith (except as
expressly contemplated in this Subsection 2.5(c)).
(d) Excess Loan Proceeds. The proceeds of the Mortgage Loan remaining
(such amount, the "EXCESS MORTGAGE LOAN PROCEEDS") after deduction of all sums
necessary to pay (i) the consideration due in respect of the assignment of the
Existing Mortgage Loan, (ii) all Shared Mortgage Loan Expenses, and (iii) all
other Shared Closing Costs, if any, shall be distributed by the Company as
follows: (A) 50.1% of the Excess Mortgage Loan Proceeds, representing Seller's
pro-rata share of the same, shall be paid to Seller, in cash by wire transfer of
immediately available funds to an account or accounts designated by Seller, and
(B) the balance, representing Buyer's pro-rata share of the same, shall be paid
to Buyer, in cash by wire transfer of immediately available funds to an account
or accounts designated by Buyer.
.6 Mortgage Loan Contingency. The obligations of Buyer are conditioned upon
the issuance on or before January 14, 2000 (the "COMMITMENT DATE") of a written
commitment from an Approved Lender for the Mortgage Loan containing terms and
conditions mutually satisfactory to Buyer and Seller (the "MORTGAGE LOAN
COMMITMENT"). If the Mortgage Loan Commitment is not issued on or before the
Commitment Date, then Buyer may terminate this Agreement by giving written
notice thereof within two (2) Business Days after the Commitment Date, in which
case this Agreement shall be deemed terminated and thereafter, neither party
shall have any further rights against, or obligations or liabilities to, the
other except (a) that the Deposit shall be refunded to Buyer promptly and (b)
for obligations and liabilities stated in this Agreement to survive the
termination of this Agreement. If Buyer fails to give notice of termination not
later than two (2) Business Days after the Commitment Date, then Buyer shall be
deemed to have waived its right to terminate this Agreement and receive a return
of the Deposit by reason of the Contingency contained in this Section 2.6.
ARTICLE 3
TITLE MATTERS
.1 Title to Real Property. Seller has previously delivered to Buyer (a) a
commitment to issue an Owner's Policy of Title Insurance with respect to the
Real Property issued by Chicago Title Insurance Company (the "TITLE COMPANY"),
identified as Title Insurance No. TA#99(01)479, a copy of which is attached
hereto as EXHIBIT D (the "TITLE REPORT"), (b) copies of all recorded documents
referred to on Schedule B of the Title Report as exceptions to coverage (the
"TITLE DOCUMENTS"), and (c) a survey of the Property prepared by
Harwood-Goldberg Surveying & Engineering Associates, P.C., dated February 15,
1989, updated by visual examination on March 9, 1990 and on May 27, 1999 (the
"SURVEY"). Buyer hereby confirms its receipt and approval of the Title Report,
the Title Documents and the Survey and shall cause the Company to similarly
approve the same at Closing.
.2 Title Defects.
.2.1 Definition of Permitted Exceptions. As used herein, the term
"PERMITTED EXCEPTIONS" shall mean and include all of the following: (a)
applicable zoning and building ordinances and land use regulations, (b) all
liens, encumbrances, covenants, conditions, restrictions, easements and other
matters of record except to the extent that the same are caused by the acts or
omissions of Seller and are placed of record after the expiration of the period
starting on October 5, 1999 and ending on the first to occur of (i) November 19,
1999 and (ii) the Contract Date (the "EXCLUSIVITY PERIOD"), the Existing
Mortgage, (c) such other exceptions to title as are listed on the marked copy of
Schedule B of the Title Report annexed hereto as EXHIBIT D, including (i) those
of the Title Company's standard printed exceptions not indicated as deleted in
EXHIBIT D, (ii) such state of facts as is disclosed in the Survey, (iii) such
state of facts as would be disclosed by a physical inspection of the Property,
(iv) the lien of taxes and assessments not yet due and payable (it being agreed
by Buyer and Seller that if any tax or assessment is levied or assessed with
respect to the Property after the date hereof and the owner of the Property has
the election to pay such tax or assessment either immediately or under a payment
plan with interest, Seller may elect to pay under a payment plan, which election
shall, subject to Section 5.2, be binding on the Company), (v) any exceptions to
title caused by Buyer, its agents, representatives or employees (provided,
however, that Buyer agrees for itself and its agents, representatives and
employees, that it shall not cause any exceptions to title without the prior
written approval of Seller), (vi) any exceptions to title caused by the Company
(as approved by Seller and Buyer), (vii) such other exceptions to title as the
Title Company shall commit to insure over without any additional cost to the
Company, whether such insurance is made available in consideration of payment,
bonding, indemnity of Seller or otherwise, and (viii) the rights of the tenants
under the Leases as tenants only, and (d) any matters deemed to constitute
additional Permitted Exceptions under Subsection 3.2.2. Notwithstanding any
provision to the contrary contained in this Agreement or any of the documents to
be executed in connection herewith or pursuant hereto, any or all of the
Permitted Exceptions may be omitted by Seller in the Deed without giving rise to
any liability of Seller, irrespective of any covenant or warranty of Seller
contained in the Deed (which provisions shall survive the Closing and not be
merged therein).
.2.2 Certain Exceptions to Title. Buyer shall have the right, on
behalf of the Company to be formed, to object in writing to any title matters
that are not Permitted Exceptions and that materially adversely affect the
Company's title to the Real Property that may appear on supplemental title
reports or updates to the Title Report issued after the date hereof (herein
collectively called the "OTHER LIENS") within fifteen (15) days after receipt
thereof by Buyer. Unless Buyer shall timely object to such Other Liens, all such
Other Liens and any matters that do not materially adversely affect the
Company's title to the Real Property that are set forth in any such supplemental
reports or updates shall be deemed to constitute additional Permitted
Exceptions. Any exceptions that are timely objected to by Buyer shall be herein
collectively called the "TITLE OBJECTIONS". Seller may elect (but shall not be
obligated) to remove, or cause to be removed at its expense, any Title
Objections, and shall be entitled to a reasonable adjournment of the Closing
(not to exceed ninety (90) days) for the purpose of such removal, which removal
will be deemed effected by the issuance of title insurance eliminating or
insuring against the effect of the Title Objections. Seller shall notify Buyer
in writing within five (5) days after receipt of any Buyer's notice of the Title
Objections whether Seller elects to remove the same. If Seller is unable to
remove or endorse over any Title Objections prior to the Closing, or if Seller
elects not to remove one or more Title Objections, Buyer may elect to either (a)
terminate this Agreement, in which event the Deposit shall be returned to Buyer
and, thereafter, the parties shall have no further rights or obligations
hereunder except for obligations which expressly survive the termination of this
Agreement, or (b) waive such Title Objections, in which event such Title
Objections shall be deemed additional "PERMITTED EXCEPTIONS" and the Closing
shall occur as herein provided without any reduction of or credit against the
Purchase Price.
.2.3 Discharge of Title Objections. If on the Closing Date there are
any Title Objections that Seller has elected to pay and discharge, Seller may
use any portion of the Purchase Price to satisfy the same, provided Seller shall
either deliver to the Company at the Closing instruments in recordable form and
sufficient to cause such Title Objections to be released of record, together
with the cost of recording or filing such instruments, or cause the Title
Company to insure over the same, without any additional cost to the Company,
whether such insurance is made available in consideration of payment, bonding,
indemnity of Seller or otherwise.
.3 Title Insurance. At the Closing, the Title Company together with the
co-insurers named in the last sentence of this Section 3.3 shall issue to the
Company an ALTA title insurance policies in the form of the Title Report
(collectively, the "OWNER'S TITLE POLICY"), in the amount of $192,000,000.00,
insuring that fee simple title to the Real Property is vested in the Company
subject only to the Permitted Exceptions. Buyer shall be entitled to cause the
Company to request that the Title Company and the co-insurers provide such
endorsements (or amendments) to the Owner's Title Policy as Buyer may reasonably
require, provided that (a) such endorsements (or amendments) shall either (i) be
at no cost to, and shall impose no additional liability on, Seller or the
Company, or (ii) have been agreed to by Seller on behalf of the Company, (b)
Buyer's obligations under this Agreement shall not be conditioned upon the
Company's ability to obtain such endorsements and, if the Company is unable to
obtain such endorsements, Buyer shall nevertheless be obligated to proceed to
close the Transactions without reduction of or set off against the Purchase
Price, and (c) the Closing shall not be delayed as a result of Buyer's request
unless Seller shall have expressly consented to such delay. Title insurance
coverage shall be provided by (A) Chicago Title Insurance Company (through Title
Associates) in the amount of $96,000,000; (B) Lawyers Title Insurance
Corporation in the amount of $48,000,000; (C) First American Title Insurance
Company (NY) in the amount of $20,000,000; and (D) Fidelity National Title
Insurance Company of New York (through Royal Abstract) in the amount of
$28,000,000. Buyer's counsel shall be responsible for coordinating the efforts
of all co-insurers and Buyer shall cause such co-insurers to issue title
policies that are identical to the Title Policy issued by the Title Company, in
each case, with endorsements reasonably satisfactory to Seller coordinating such
title insurance coverage.
ARTICLE 4
BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY
.1 Buyer's Inspections and Due Diligence. Buyer acknowledges that
commencing prior to the execution of this Agreement, Buyer has conducted its
examinations, inspections, testing, studies and/or investigations (herein
collectively called the "DUE DILIGENCE") of the Property being transferred to
the Company, the Existing Mortgage, information regarding the Property and such
documents in Seller's possession applicable to the Property, including the Title
Report, the Survey, the Title Documents, the Leases, the Contracts, the Property
Documents, the environmental reports listed on EXHIBIT E, and such other
non-proprietary, non-privileged reports, documents, books and records that
pertain to the Property being transferred to the Company as Buyer has deemed or
shall deem necessary or appropriate (all of the foregoing documents being herein
collectively called the "DOCUMENTS").
.2 Buyer's Acknowledgement of Prior Due Diligence. (a) Buyer acknowledges
that Buyer (i) has already performed its due diligence inspection of the locale
and leasing market of the Property and (ii) is satisfied with the market
assumptions Buyer utilized in its analysis of the Property, the Company and
determination of the Purchase Price (such as assumptions with respect to rental
rates, leasing costs, vacancy and absorption rates, land values, replacement
costs, maintenance and operating costs, financing costs, ETC.).
(b) Existing Mortgage Loan. Buyer acknowledges its receipt of copies of (i)
loan documents relating to the loan (the "EXISTING MORTGAGE LOAN") secured by
the Existing Mortgage, (ii) organizational documents of Existing Lender and
(iii) cancelled checks evidencing principal or interest payments heretofore made
by or on behalf of Seller in respect of the Existing Mortgage Loan (Clauses (i),
(ii) and (iii), collectively, the "MORTGAGE ASSIGNMENT DOCUMENTS").
.3 Buyer's and Company's Certificate. The Company shall acquire the
Property and Buyer shall purchase the Interests in the Company (and thereby
acquire an indirect interest in the Property) "As Is", by relying on Buyer's
inspections and other due diligence activities and only those representations
and warranties of Seller set forth in Article 8. Buyer shall deliver to Seller
and shall cause the Company to deliver at the Closing, a certificate in the form
of EXHIBIT F, with respect to, among other things, the "As Is" nature of the
Transactions and Buyer's Due Diligence.
ARTICLE 5
ADJUSTMENTS AND PRORATIONS
The following adjustments and prorations shall be made at the Closing:
.1 Lease Rentals and Expenses.
.1.1 Definition of "Rent". For purposes of this Article 5, the term
"RENT" shall mean all base rents, percentage rents, additional rent and any tax
and operating expense reimbursements and escalations due from the tenants under
the Leases.
.1.2 Rents. All collected Rents shall be prorated between Seller and
the Company as of the day prior to the Closing Date. Seller shall be entitled to
all Rents attributable to any period to but not including the Closing Date. The
Company shall be entitled to all Rents attributable to any period on and after
the Closing Date. For purposes of determining each of the Company's and Seller's
PRO RATA share of percentage rents, tax and operating expense reimbursements and
escalations, the amount "attributable" to the period prior to the Closing Date
shall be equal to the aggregate amount of such Rents actually collected for the
calendar year (or lease years or other applicable accounting periods under the
leases) in which the Closing occurs multiplied by a fraction, the numerator of
which shall be the number of days prior to the Closing Date that the applicable
tenant leases space at the Real Property during the calendar year (or lease
years or other applicable accounting periods under the leases) in which the
Closing occurs and the denominator of which shall be 365. Except with respect to
percentage rents (which shall be prorated as provided below), Rents not
collected as of the Closing Date shall not be prorated at the time of the
Closing. With respect to percentage rent due from any tenant, Buyer and Seller
agree that at the Closing, estimated percentage rent shall be prorated for the
calendar year in which the Closing occurs as and when collected. After the
Closing, Buyer and Seller agree that the Company shall make a good faith effort
to collect any Rents not collected as of the Closing Date on Seller's behalf and
to tender the same to Seller upon receipt thereof (which obligation of the
Company shall survive the Closing and not be merged therein); provided, however,
that all Rents collected by the Company on or after the Closing Date shall first
be applied to all amounts due under the Leases at the time of collection (I.E.,
current rents and sums due the Company as the current owner and landlord) with
the balance (if any) payable to Seller, but only to the extent of amounts
delinquent and actually due to Seller. The Company shall not have an exclusive
right to collect the sums due to Seller under the Leases and Seller hereby
retains its rights to pursue any tenant under the Leases for sums due Seller for
periods attributable to Seller's ownership of the Real Property (including any
percentage rent that may be due with respect to any period of time prior to the
Closing, regardless of when the same is to be paid to the owner of the Real
Property pursuant to the terms of the applicable Lease); provided, however, that
Seller (a) shall be required to notify the Company in writing of its intention
to commence or pursue such legal proceedings; (b) shall only be permitted to
commence or pursue any legal proceedings after the date that is three (3) months
after the Closing; and (c) shall not be permitted to commence or pursue any
legal proceedings against any tenant seeking eviction of such tenant or the
termination of the underlying Lease. The terms of the immediately preceding
sentence shall survive the Closing and not be merged therein. The Company shall
receive a credit relating to the pre-paid rentals held by Seller, if any,
covering the period commencing on the Closing Date. Such amount shall be
distributed pursuant to the requirements of Section 5.5.
.1.3 Reimbursable Lease Expenses. At the Closing, the Company shall
reimburse Seller for the Reimbursable Lease Expenses to the extent required by
the terms of Article 13. Such reimbursement shall be made pursuant to the
requirement of Section 5.5.
.2 Real Estate Taxes. Real estate taxes shall be prorated on a cash basis
for the applicable tax year in which the Closing occurs. Such proration shall be
calculated based upon the actual number of days in such year, with Seller being
responsible for that portion of such year occurring prior to 11:59 p.m. of the
day prior to the Closing Date and the Company being responsible for that portion
of such year occurring thereafter. If the real estate tax rate and assessments
have not been set for the year in which the Closing occurs, then the proration
of such taxes shall be based upon the rate and assessments for the preceding
year, and such proration shall be adjusted between Seller and the Company upon
presentation of written evidence that the actual taxes paid for the year in
which the Closing occurs differ from the amounts used at the Closing and in
accordance with the provisions of Section 5.6. Seller shall pay all installments
of special assessments due and payable prior to the Closing Date and the Company
shall pay all installments of special assessments due and payable on and after
the Closing Date; provided, however, that Seller shall not be required by the
foregoing to pay any installments of special assessments that have not been
confirmed or that relate to projects that have not been completed on the date
hereof. Notwithstanding the foregoing terms of this Section 5.2, Seller shall
have no obligation to pay (and the Company shall not receive a credit at the
Closing for) any real estate taxes (except for special assessments) to the
extent that the Company is entitled after the Closing to reimbursement of such
taxes and assessments, or the recovery of any increase in taxes and assessments,
from the tenants under the Leases, regardless of whether the Company actually
collects such reimbursement or increased taxes and assessments from such
tenants, it being understood and agreed by Buyer and Seller that as among Buyer,
the Company and Seller, the Company shall be responsible for payment of all of
such real estate taxes and assessments, and the burden of collecting such
reimbursements shall be solely on the Company. If the Property has been assessed
for property tax purposes at such rates as would result in reassessment based
upon the change in land usage or ownership of the Property, the Company shall
pay all such taxes and Buyer hereby agrees, on behalf of the Company, to
indemnify and save Seller, as a seller (but not in its capacity as a member of
the Company), harmless from and against all claims and liability for such taxes.
Such indemnity shall survive the Closing and not be merged therein.
.3 Other Property Operating Expenses. Operating expenses for the Property
shall be prorated as of 11:59 p.m. of the day prior to the Closing Date. Seller
shall pay all utility charges and other operating expenses attributable to the
Property to, but not including, the Closing Date (except for those utility
charges and operating expenses payable by tenants in accordance with the Leases)
and the Company shall pay all utility charges and other operating expenses
attributable to the Property on or after the Closing Date. To the extent that
the amount of actual consumption of any utility services is not determined prior
to the Closing Date, a proration shall be made at the Closing based on the last
available reading and post-Closing adjustments between the Company and Seller
shall be made within twenty (20) days of the date that actual consumption for
such pre-Closing period is determined, which obligation shall survive the
Closing and not be merged therein. Seller shall not assign to the Company any
deposits that Seller has with any of the utility services or companies servicing
the Property. The Company shall arrange with such services and companies to have
accounts opened in the Company's name beginning at 12:00 a.m. on the Closing
Date. Notwithstanding the foregoing terms of this Section 5.3, Seller shall have
no obligation to pay (and the Company shall not receive a credit at the Closing
for) any operating expenses to the extent that the Company is entitled after the
Closing to reimbursement of operating expenses, or the recovery of any increase
in operating expenses, from the tenants under the Leases, regardless of whether
the Company actually collects such reimbursement or increased operating expenses
from such tenants, it being understood and agreed by Buyer and Seller that as
between Buyer, the Company and Seller, the Company shall be responsible for
payment of all of such operating expenses, and the burden of collecting such
reimbursements shall be solely on the Company.
.4 Closing Costs.
(a) Shared Closing Costs. Buyer and Seller shall bear, on a pro rata
basis in accordance with their respective interests in the Company, (i) the
Shared Mortgage Loan Expenses, and, without duplication, (ii) all premiums and
customary charges in connection with the Owner's Title Policy (including the
costs of owner endorsements agreed upon by Buyer and Seller), (iii) all
recording and filing charges, (iv) all costs of complying with reasonable
requests for due diligence materials by mutually satisfactory prospective
lenders of the Mortgage Loan and otherwise cooperating with the conduct of such
lenders' due diligence (collectively, the "SHARED CLOSING COSTS"), (v) any
mortgage recording tax payable in respect of that portion of the principal
amount of the Mortgage Loan that is in excess of the principal amount of the
Existing Mortgage Loan outstanding as of the Closing Date (the "EXCESS MORTGAGE
RECORDING TAX"), (vi) the fees and costs of counsel to each of Seller and Buyer
directly attributable to the preparation and negotiation of the Operating
Agreement, and (vii) the fees and costs of counsel to each of Seller and Buyer
directly attributable to the negotiation of the Mortgage Loan with the Lender.
If the Closing does not occur, Buyer and Seller shall nonetheless be responsible
for payment of these Shared Closing Costs, with Seller bearing responsibility
for 50.1% of such total costs and Buyer bearing responsibility for 49.9% of such
total costs. If the Closing does not occur and Seller or its designee
nonetheless actually closes on the mortgage loan transaction to which Shared
Mortgage Loan Expenses relate, Seller shall reimburse Buyer for an amount equal
to that portion of Buyer's share of such Shared Mortgage Loan Expenses actually
paid by Buyer. The obligations of the parties under this Section 5.4 shall
survive the Closing (and not be merged therein) or any earlier termination of
this Agreement.
(b) Buyer's Costs. Buyer shall pay (i) any mortgage recording tax
other than the Excess Mortgage Recording Tax, (ii) all costs of complying with
Seller's reasonable requests for due diligence materials with respect to SLG or
Buyer and otherwise cooperating with the conduct of Seller's Due Diligence
(Seller hereby confirming that it has completed such diligence), (iii) all costs
incurred by it or on its behalf in respect of Buyer's Due Diligence (Buyer
hereby confirming that it has completed such diligence), (iv) the costs of
endorsements to the "Owner's Title Policy" that were required by Buyer but were
not consented to by Seller, and (v) all fees and costs due to its counsel other
than fees directly attributable to negotiating the Mortgage Loan with the Lender
on behalf of the Company and the preparation and negotiation of the Operating
Agreement.
(c) Seller's Costs. Seller shall pay (i) the brokerage commission due
to Cushman & Wakefield ("BROKER"), (ii) subject to Section 4.1 and Subsection
5.4(a), all costs of complying with reasonable Buyer's requests for due
diligence materials with respect to the Property, the Company or the Existing
Mortgage Loan and otherwise cooperating with the conduct of Buyer's Due
Diligence, (iii) all costs incurred by it or on its behalf in respect of
Seller's Due Diligence, (iv) all costs associated with obtaining estoppel
certificates from any Major Tenant or Other Tenant, (v) the costs of any real
property transfer taxes imposed by applicable taxing authorities in respect of
the transfer of the Property to the Company or the transfer of the Interests to
Buyer in accordance with the terms of this Agreement; provided that Seller's
aggregate liability in respect of such transfer taxes shall not exceed TWELVE
MILLION AND NO/100 DOLLARS ($12,000,000.00) and provided further that Seller's
payment obligation shall be limited to the assets of the PRISA account, (vi) all
fees and costs due its own counsel other than fees and costs directly
attributable to the negotiation of the Mortgage Loan with the Lender on behalf
of the Company and the preparation and negotiation of the Operating Agreement,
and (vii) all costs incurred in connection with causing the Title Company to
remove (y) any Title Objections to the extent Seller specifically agrees in
writing, at or prior to the Closing, to cause removal of such matter, it being
understood for purposes of this sentence that nothing in this Agreement or any
prior understanding or agreement of the parties shall be construed to obligate
Seller to so remove or agree to remove any such matter and (z) the matters
marked "omit" on Schedule B to EXHIBIT D.
.5 Apportionment. If the apportionments, other credits or reimbursements to
be made at the Closing result in a net credit balance (a) to the Company, such
sum shall be paid at the Closing by Seller transferring funds in the amount of
such overall credit or reimbursement to the Company and the Company shall
distribute such funds at the Closing to its members in accordance with their
respective pro rata interests (i.e., with Seller receiving 50.1% of such amount
and Buyer receiving 49.9% of such amount), or (b) to Seller, such sums shall be
paid to Seller at the Closing by Seller wiring 50.1% of such amount on behalf of
the Company and Buyer wiring 49.9% of such amount on behalf of the Company, in
each case, in immediately available funds to the account or accounts to be
designated by Seller for the payment of the Purchase Price. Notwithstanding the
foregoing, Seller may, at Seller's option, deem payments to itself made by book
entry and shall not be obligated to actually wire funds.
.6 Delayed Adjustment; Delivery of Operating and Other Financial
Statements. If at any time following the Closing Date, the amount of an item
listed in any section of this Article 5 shall prove to be incorrect (whether as
a result in an error in calculation or a lack of complete and accurate
information as of the Closing), the party in whose favor the error was made
shall promptly pay to the other party the sum necessary to correct such error
upon receipt of proof of such error, provided that such proof is delivered to
the party from whom payment is requested on or before one (1) year after the
Closing (such period being referred to herein as the "POST-CLOSING ADJUSTMENT
PERIOD"). In order to enable Seller and Buyer to determine whether any such
delayed adjustment is necessary, Buyer and Seller shall cause the Company to
provide to Seller and Buyer current operating and financial statements for the
Property no later than the date that is ninety (90) days prior to the expiration
of the Post-Closing Adjustment Period. The provisions of this Section 5.6 shall
survive the Closing and not be merged therein.
ARTICLE 6
CLOSING
Buyer and Seller hereby agree that the Transactions shall be consummated as
follows:
.1 Closing Date. Subject to Seller's right to extend the Closing as
provided in this Agreement, the Transactions shall close on January 31, 2000
(the date on which the Closing occurs, "CLOSING DATE"), time being of the
essence with respect to the January 31, 2000 date. The Closing shall be a
so-called "New York style" closing. Buyer and Seller shall conduct a
"pre-closing" at 10:00 a.m. Eastern Time on the last Business Day prior to the
Closing Date at the offices of the Escrow Agent or, at Buyer's request, at the
office of either Lender or Lender's attorney, with title transfer and payment of
the Purchase Price to be completed on the Closing Date as set forth in Section
6.2.
.2 Title Transfer and Payment of Purchase Price. Provided all conditions
precedent to Seller's obligations hereunder have been satisfied, Seller agrees
to convey title to the Property to the Company and to cause the Company to
transfer the Interests to Buyer promptly upon confirmation of receipt of the
Purchase Price as set forth below. Provided all conditions precedent to Buyer's
obligations hereunder have been satisfied, Buyer agrees to pay the amount
specified in Article 2 by timely delivering the same to Seller no later than
11:00 a.m. Eastern Time on the Closing Date.
.3 Seller's Closing Deliveries to the Company. At the Closing or any
pre-Closing, Seller shall deliver or cause to be delivered the following
relating to the transfer of the Property to the Company:
(a) Deed. A deed of the Property to the Company in the form of EXHIBIT
G (the "DEED"), duly completed, executed by Seller and acknowledged.
(b) Limited Guaranty Agreement. The Limited Guaranty Agreement in the
form of EXHIBIT Z, duly completed and executed by Seller for the benefit of the
Company.
(c) Bill of Sale. A bill of sale in the form of EXHIBIT H, duly
completed and executed by Seller (the "BILL OF SALE").
(d) Assignment of Leases. An assignment and assumption of tenant
leases in the form of EXHIBIT I, duly completed and executed by Seller (the
"ASSIGNMENT OF LEASES").
(e) Assignment of Contracts. An assignment and assumption of the
Contracts and the Other Property Rights (to the extent the same are not
transferred by the Deed, Bill of Sale or Assignment of Leases) in the form of
EXHIBIT J, duly executed by Seller (the "ASSIGNMENT OF CONTRACTS").
(f) Notice to Tenants. A letter for each space tenant in the form of
EXHIBIT K, a completed original of which shall be sent by the Company after the
Closing to each such tenant, duly completed and executed by Seller.
(g) Non-Foreign Status Affidavit. A non-foreign status affidavit in
the form of EXHIBIT L, as required by Section 1445 of the Internal Revenue Code,
duly completed and executed by Seller.
(h) Evidence of Seller's Authority. A certificate of an Assistant
Secretary of Seller with respect to the authority to act on behalf of Seller of
the individual executing on behalf of Seller all documents contemplated by this
Agreement.
(i) Letters of Credit as Tenant Security Deposits. With respect to any
security deposits that are letters of credit, Seller shall, if the same are
assignable, (i) deliver to the Company at the Closing such letters of credit,
(ii) execute and deliver such other instruments as the issuers of such letters
of credit shall reasonably require, and (iii) cooperate with the Company after
the Closing to change the named beneficiary under such letters of credit to the
Company so long as Seller does not incur any additional liability or expense in
connection therewith.
(j) Transfer Taxes. Duly completed and signed real estate transfer tax
returns.
(k) Assignment of Note and Mortgage. An assignment and assumption to
Lender of Existing Note and the Existing Mortgage, in the form of EXHIBIT M (the
"ASSIGNMENT OF NOTE AND MORTGAGE"), duly completed and executed by Existing
Lender and acknowledged, and to the extent in the possession of the Existing
Lender and reasonably available to it, original versions of the Existing Note
and Existing Mortgage, or if the original version of the Existing Note is
unavailable, a lost note affidavit in form and substance reasonably satisfactory
to Existing Lender and Buyer and otherwise customarily used in New York City.
(l) Property Documents. (i) To the extent in the possession of Seller
or the managing agent of the Real Property and the same are assignable by Seller
without any expense or liability to Seller, (A) the original (or, if
unavailable, a copy) of the existing certificate or certificates of occupancy
for the Real Property, and (B) all original (or, if unavailable, copies of)
certificates, licenses, permits, authorizations and approvals issued for or with
respect to the Real Property by governmental and quasi-governmental authorities
having jurisdiction; and (ii) all non-proprietary, non-confidential books and
records located at the Real Property or at the office of the managing agent of
the Real Property relating to the Real Property and the ownership and operation
thereof (the items described in Clauses (i) and (ii) being herein collectively
called the "PROPERTY DOCUMENTS").
(m) Estoppel Certificates. Executed tenant estoppel certificates from
each of (i) Philip Morris Management Corporation; (ii) J&W Seligman and Co.,
Inc.; (iii) Interep National Radio Sales; (iv) MCI WorldCom; (v) Goodkind,
Labaton, Rudoff & Sucharow and (vi) Laidlaw Holdings Inc. (herein collectively
called the "MAJOR Tenants", and (vii) other tenants collectively occupying not
less than seventy percent (70%) of the area leased at the Property (excluding
the area leased under the leases with the Major Tenants) and that are obligated
under their respective leases to deliver such letters to the landlord (herein
collectively called the "OTHER TENANTS"), in each case, (x) meeting the
requirements of this Subsection 6.3(m), (y) not indicating that the documents
comprising such tenant's lease are materially and substantively different than
the documents listed in EXHIBIT S with respect to such tenant's lease, and (z)
not indicating that there exists any material default by landlord or tenant as
to any material term in such tenant's lease (an estoppel certificate complying
with Clauses (x), (y) and (z), a "CLEAN ESTOPPEL"). Such tenant estoppel
certificates shall be in the form or containing the substance (in either case,
the "REQUIRED ESTOPPEL LANGUAGE") that such Major Tenant or Other Tenant is
required to provide pursuant to the terms of such Major Tenant's or Other
Tenant's lease or, if no form or substance with respect to estoppel certificates
is specified in any particular lease, in the form of EXHIBIT N-1 (the "ESTOPPEL
FORM"). If Seller cannot for any reason obtain a Clean Estoppel from a tenant
from whom an estoppel certificate is required, Seller, at its option, may
deliver to the Company a representation letter with respect to such tenant in
the form of EXHIBIT N-2; provided that the Company shall not be obligated to
accept such representation letter in lieu of an estoppel certificate from any
Major Tenant or in lieu of estoppel certificates from Other Tenants occupying,
in the aggregate, more than twenty percent (20%) of the area leased by all of
the Other Tenants. Seller's liability under Seller's representation letters
shall expire and be of no further force or effect on the earlier of (A) the one
hundred eightieth (180th) day following the Closing Date, and (B) the date that
the Company receives a Clean Estoppel from any such tenant for which Seller has
executed a representation letter. Notwithstanding the foregoing, at the
Company's request, Seller shall request that all tenants provide an estoppel
certificate in the form of the Estoppel Form; provided that Seller shall only be
obligated to obtain an estoppel certificate containing the Required Estoppel
Language and Buyer and the Company shall nonetheless be obligated to close the
Transactions if the requisite number of Clean Estoppels containing the Required
Estoppel Language is obtained on or prior to the Closing. Seller shall, at the
request of Lender, forward agreements (collectively, the "SNDAS") concerning
subordination, non-disturbance or attornment of or by any tenant of the Property
with respect to Lender or Lender's rights with respect to the Mortgage Loan to
tenants and request that tenants execute such agreements. The delivery of (y)
any estoppel certificate containing language other than the Required Estoppel
Language or (z) any SNDAs shall not, however, under any circumstances be deemed
a condition precedent to Buyer's obligation to close the Transactions.
(n) Keys and Original Documents. Keys to all locks on the Real
Property in Seller's or Seller's building manager's possession and originals or,
if originals are not available, copies, of the Leases and Contracts.
(o) Other Documents. Such other documents as may be reasonably
required by the Title Company or as may be agreed upon by Seller and Buyer to
consummate the Transactions; provided, however, that Seller shall not deliver or
cause to be delivered any affidavit under Section 255 of the Tax Law of the
State of New York (the "SECTION 255 AFFIDAVIT") or under Section 275 of the Real
Property Law of the State of New York (the "SECTION 275 AFFIDAVIT") in
connection with the assignment of the Existing Note and the Existing Mortgage
contemplated by the Assignment of Note and Mortgage.
The items to be delivered by Seller in accordance with the terms of
Subsections (a) through (m) and (o) of this Section 6.3 shall be delivered to
Escrow Agent no later than 5:00 p.m. Eastern Time on the last Business Day prior
to the Closing Date and the items to be delivered by Seller in accordance with
the terms of Subsection (n) of this Section 6.3 shall be deemed delivered if the
same are located at the Property on the Closing Date.
.4 Seller's Deliveries to Buyer. At the Closing, Seller shall deliver, or
cause to be delivered to Buyer, the following relating to the transfer of the
Interests:
(a) Seller's Certificate. The certificate of Seller certifying to the
matters set forth in Section 8.2, in form and substance reasonably satisfactory
to Buyer.
(b) Operating Agreement. The Operating Agreement executed by Seller
and acknowledged.
(c) Transfer of Interests. The Assignment and Assumption of Interests
in the form of EXHIBIT O, duly executed by Seller's wholly-owned subsidiary and
acknowledged.
(d) Evidence of the Company's Authority. Documentation to establish to
Buyer's reasonable satisfaction that the Company was duly formed and is
authorized to deliver all of the documents required to be delivered by the
Company pursuant to this Agreement.
(e) Managing Agent's Certificate. To the extent that the same has been
obtained by or on behalf of the Seller prior to the Closing and has not
theretofore been delivered to Buyer in accordance with Subsection 9.2.5, a
certificate of the current managing agent certifying as to any or all of the
matter set forth in Subsection 8.2.2; provided that the same shall be delivered
for informational purposes only.
The items to be delivered by Seller in accordance with the terms of
Subsections (a) through (e) of this Section 6.4 shall be delivered to Escrow
Agent no later than 5:00 p.m. Eastern Time on the last Business Day prior to the
Closing Date.
.5 Company's Closing Deliveries. At the Closing, Buyer and Seller shall
jointly cause the Company to deliver the following to the appropriate parties:
(a) Limited Guaranty Agreement. The Limited Guaranty Agreement
executed by the Company for the benefit of Seller.
(b) Assignment of Leases. The Assignment of Leases executed by the
Company.
(c) Assignment of Contracts. The Assignment of Contracts executed by
the Company.
(d) Existing Mortgage Loan Payoff. Evidence that the Company has paid,
or caused the payment, to Existing Lender of an amount equal to the then
outstanding principal amount of the Existing Mortgage Loan (equal to
$112,000,000.00) pursuant to the requirements of Section 2.5.
(e) Mortgage Loan Documents. A copy of an executed set of the loan
documents relating to the Mortgage Loan pursuant to the requirements of Section
2.5.
(f) Management Agreement. The Management Agreement in the form of
EXHIBIT W, executed by Company and the manager thereunder.
(g) Company's Certificate. The certificate of the Company required by
Section 4.3 in the form of EXHIBIT F.
(h) Insurance Policies. Insurance policies, with respect to such
insurance coverage, issued by such companies, and in such form, substance and
amounts, as is reasonably satisfactory to Buyer and Seller.
(i) Title Documents. Such other documents as may be reasonably
required by the Title Company consistent with Seller's obligations hereunder or
as may be agreed upon by Seller and Buyer to consummate the Transactions
provided, however, that the Company shall not deliver or cause to be delivered a
Section 255 Affidavit or a Section 275 Affidavit in connection with the
assignment of the Existing Note and the Existing Mortgage contemplated by the
Assignment of Note and Mortgage.
(j) Title Policy. The Owner's Title Policy together with endorsements
in accordance with Section 3.3.
The items to be delivered by Company in accordance with the terms of
Subsections (a) through (i) of this Section 6.5 shall be delivered to Escrow
Agent no later than 5:00 p.m. Eastern Time on the last Business Day prior to the
Closing Date.
.6 Buyer's Closing Deliveries. At the Closing, Buyer shall deliver or cause
to be delivered the following:
(a) Purchase Price. The Purchase Price, as adjusted for apportionments
and other adjustments required under this Agreement, plus any other amounts
required to be paid by Buyer at the Closing.
(b) Buyer's Certificates. The certificate of Buyer required by Section
4.3 in the form of EXHIBIT F and a certificate of Buyer certifying as to the
matters set forth in Section 8.1, in form and substance reasonably ------------
satisfactory to Seller.
(c) Operating Agreement. The Operating Agreement executed and
acknowledged by Buyer.
(d) Buyer's ERISA Certificate. The certificate of Buyer substantially
in the form of EXHIBIT P and any other certificate or other information
reasonably required by Seller to satisfy Seller that the Transactions do not
constitute a non-exempt prohibited transaction under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and that the Transactions
comply with ERISA in all respects.
(e) Evidence of Authority. Documentation to establish to Seller's
reasonable satisfaction the due authorization of Buyer's acquisition of the
Interests and Buyer's delivery of the documents required to be delivered by
Buyer pursuant to this Agreement (including the organizational documents of
Buyer, as they may have been amended from time to time, resolutions of Buyer and
incumbency certificates of Buyer).
(f) Transfer of Interests. The Assignment and Assumption of Interests
in the form of EXHIBIT O, duly executed by Buyer and acknowledged.
(g) Title Documents. Such other documents as may be reasonably
required by the Title Company or may be agreed upon by Seller and Buyer to
consummate the Transactions.
The Purchase Price shall be paid in accordance with the terms of
Section 6.2. The items to be delivered by Buyer in accordance with the terms of
Subsections (b) through (g) of this Section 6.6 shall be delivered to Escrow
Agent no later than 5:00 p.m. Eastern Time on the last Business Day prior to the
Closing Date.
ARTICLE 7
CONDITIONS TO CLOSING
.1 Seller's Obligations. Seller's obligation to close the Transactions is
conditioned on all of the following, any or all of which may be waived by Seller
by an express written waiver, at its sole option:
(a) Representations True. All representations and warranties made by
Buyer in this Agreement (including in its exhibits, whether or not the same have
heretofore been signed as separate documents) shall be true and correct in all
material respects on and as of the Closing Date, as if made on and as of such
date except to the extent they expressly relate to an earlier date;
(b) Buyer's Financial Condition. No petition has been filed by or
against Buyer under the Bankruptcy Code, 11 U.S.C.ss.ss.101 et seq., as amended
(the "FEDERAL BANKRUPTCY CODE") or any similar, applicable federal, state,
county or municipal statute, code, ordinance, law, rule or regulation ("LAW");
(c) Buyer's Deliveries Complete. Buyer shall have delivered the funds
required hereunder and all of the documents and other items required pursuant to
Section 6.6 and shall have performed all other covenants, undertakings and
obligations, and complied with all conditions required by this Agreement, to be
performed or complied with by Buyer at or prior to the Closing; and
(d) Existing Mortgage. The payment to Existing Lender as described in
Subsection 2.5(a) shall have been received.
.2 Buyer's Obligations. Buyer's obligation to close the Transactions is
conditioned on all of the following, any or all of which
may be waived by Buyer by an express written waiver, at its sole option:
(a) Representations True. Subject to the provisions of Section 8.3,
all representations and warranties made by Seller in this Agreement, as the same
may be amended as provided in Section 8.3, shall be true and correct in all
material respects on and as of the Closing Date, as if made on and as of such
date except to the extent that they expressly relate to an earlier date;
(b) Title Conditions Satisfied. Subject to Section 10.1, at the time
of the Closing, title to the Real Property shall be as provided in Article 3 of
this Agreement; and
(c) Seller's and Company's Deliveries Complete. Subject to Section
10.1, Seller and the Company shall have delivered all of the documents and other
items required pursuant to Sections 6.3, 6.4 and 6.5 (as the case may be) and
shall have performed all other covenants, undertakings and obligations, and
complied with all conditions required by this Agreement and all related
documents to be performed or complied with by Seller at or prior to the Closing.
.3 Waiver of Failure of Conditions Precedent. At any time or times on or
before the date specified for the satisfaction of any condition, Seller or Buyer
may elect in writing to waive the benefit of any such condition set forth in
Section 7.1 or Section 7.2, respectively. By closing the Transactions, Buyer
shall be conclusively deemed to have waived the benefit of any remaining
unfulfilled conditions set forth in Section 7.2. In the event any of the
conditions set forth in Section 7.1 or Section 7.2 are neither waived nor
fulfilled, Seller or Buyer (as appropriate) may exercise such rights and
remedies as may be permitted by the terms of Article 10.
.4 Approvals not a Condition to Buyer's Performance. Buyer acknowledges and
agrees that its obligation to perform under this Agreement is not contingent
upon Buyer's ability to obtain any (a) governmental or quasi-governmental
approval of changes or modifications in use or zoning or (b) modification of any
existing land use restriction.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
.1 Buyer's Representations. Buyer represents and warrants to, and covenants
with, Seller as follows:
.1.1 Buyer's Authorization. Buyer is duly organized (or formed),
validly existing and in good standing under the laws of its State of
organization and the State in which the Property is located, is authorized to
consummate the Transactions and fulfill all of its obligations hereunder and
under all documents contemplated hereunder to be executed or delivered by Buyer,
and has all necessary power to execute and deliver this Agreement and all
documents contemplated hereunder to be executed or delivered by Buyer, and to
perform all of its obligations hereunder and thereunder. This Agreement and all
documents contemplated hereunder to be executed or delivered by Buyer have been
duly authorized by all requisite partnership or corporate action on the part of
Buyer and are the valid and legally binding obligation of Buyer, enforceable in
accordance with their respective terms. Neither the execution and delivery of
this Agreement and all documents contemplated hereunder to be executed or
delivered by Buyer, nor the performance of the obligations of Buyer hereunder or
thereunder, will result in the violation of any applicable Law or any provision
of the agreement of partnership or articles of incorporation and by-laws of
Buyer or will conflict with any order or decree of any court or governmental
instrumentality of any nature by which Buyer is bound. Buyer is a single purpose
limited liability company whose sole member is SL Green Operating Partnership,
the sole general partner of which is SL Green Realty Corp. ("SLG").
.1.2 Buyer's Financial Condition. No petition has been filed by or
against Buyer under the Federal Bankruptcy Code or any other similar Law.
.2 Seller's Representations. Seller represents and warrants to Buyer as
follows:
.2.1 Seller's Authorization. Seller is duly organized (or formed),
validly existing and in good standing under the laws of its State of
organization and the State in which the Real Property is located, is authorized
to consummate the Transactions and fulfill all of its obligations hereunder and
under all documents contemplated hereunder to be executed by Seller, and has all
necessary power to execute and deliver this Agreement and all documents
contemplated hereunder to be executed by Seller and to perform its obligations
hereunder and thereunder. This Agreement and all documents contemplated
hereunder to be executed by Seller have been duly authorized by all requisite
corporate action on the part of Seller and are the valid and legally binding
obligation of Seller enforceable in accordance with their respective terms.
Neither the execution and delivery of this Agreement and all documents
contemplated hereunder to be executed by Seller, nor the performance of the
obligations of Seller hereunder or thereunder, will result in the violation of
any applicable Law or any provision of the articles of incorporation and by-laws
of Seller or will conflict with any order or decree of any court or governmental
instrumentality of any nature by which Seller is bound.
.2.2 Seller's Other Representations. To Seller's knowledge (as defined
in Subsection 8.3.2):
(a) Except as listed in EXHIBIT Q, Seller has not received any written
notice of any current or pending material actions, suits or equivalent
proceedings against Seller which would, in the reasonable judgment of Seller, if
determined adversely to Seller, (i) adversely affect title to the Property, (ii)
prohibit Seller from consummating the Transactions, or (iii) materially
adversely affect the continued use and enjoyment of the Property as an office
building. Seller shall give Buyer notice of any such action, suit or proceeding
that is filed prior to Closing of which Seller receives written notice, promptly
after Seller receives such written notice.
(b) EXHIBIT B sets forth all effective service, supply, maintenance
and utility contracts relating to the Property and all deposits held by utility
companies with respect to the Property. As of the date of this Agreement, Seller
has not entered into any service, supply, maintenance or utility contracts
affecting the Property that will be binding upon the Company after the Closing
other than the contracts listed in EXHIBIT R.
(c) Except for defaults cured on or before the date hereof, Seller has
not received any written notice of default under the terms of any of the
contracts except as listed in EXHIBIT Q.
(d) Except for defaults cured on or before the date hereof or as
listed in EXHIBIT Q, Seller has not (i) given to any tenant a written notice of
default by such tenant under the terms of its Lease or (ii) received from any
tenant a written notice of default by the landlord under the terms of such
tenant's Lease.
(e) As of the date of this Agreement, the only tenants of the Property
are the tenants listed in EXHIBIT S; provided, however, that the foregoing is
not intended (and shall not be construed) as representation by Seller of the
parties that are in actual possession of any portion of the Property since there
may be subtenants, licensees or assignees that are in possession of portions of
the Property of which Seller may not be aware.
(f) Except as listed in EXHIBIT T, all tenant improvements of the
Property actually performed by Seller have been fully paid for by or on behalf
of Seller.
(g) Except as listed in EXHIBIT U, there are no leasing brokerage
commissions (or unpaid installments thereof) due with respect to any space lease
to which Seller is a party.
(h) Except for violations cured or remedied on or before the date
hereof and except as listed in EXHIBIT Q, as of the date of this Agreement,
Seller has not received any written notice from any governmental authority of
any violation of any zoning, building, fire, or health code, statute, ordinance,
rule or regulation applicable to the Property.
(i) Except as set forth in EXHIBIT V, Seller has not commenced or
prosecuted any proceedings to decrease the assessed valuation of the Property.
(j) As of the date of this Agreement, Seller has received no written
notice of any pending or threatened condemnation or eminent domain proceedings
with respect to the Property.
(k) As of the date of this Agreement, Seller has not received any
written notice from any governmental authority in respect to any violation of
environmental laws.
(l) Seller is not a party to any effective option to purchase, right
of first offer or right of first refusal to acquire all or any portion of the
Property or the Company.
(m) The facts set forth in the Mortgage Assignment Documents were true
in all material respects as at the dates thereof.
(n) Seller has not sold, transferred, pledged or encumbered any
interest in the Company since its formation other than a transfer of the
Interests to Buyer in accordance with this Agreement.
(o) EXHIBIT S is a list of all effective leases for space in the
Property entered into by or on behalf of Seller, together with all amendments or
modifications thereto, as of the date of this Agreement. To the extent that
copies of leases, copies of other documents or any other information with
respect to the Property furnished or made available to or obtained by Buyer
prior to the Contract Date contains provisions or information that is
inconsistent with this representation and warranty or any information on EXHIBIT
S, such representation and warranty or information shall be deemed modified to
the extent necessary to eliminate the inconsistency and to conform such
representation and warranty or information to such lease, such documents or
other such information with respect to the Property. Without limiting the
foregoing, Seller shall have no liability for any representation or warranty
with respect to any lease for which (i) a Clean Estoppel has been delivered
covering the subject matter of such representation or warranty or (ii) any other
tenant estoppel certificate has been delivered prior to the Closing covering the
subject matter of such representation or warranty.
.2.3 No Other Agreements. Seller has not entered into any currently
effective agreement to sell or dispose of all or any portion of its interest in
and to the Property (except for this Agreement and any options to purchase the
Property or a portion thereof that may be contained in any of the Leases).
.3 General Provisions.
.3.1 Representation as to Leases. Seller does not represent or warrant
that any particular Lease or Leases will be in force or effect on the Closing
Date or that the tenants will have performed their obligations thereunder.
.3.2 Definition of "Seller's Knowledge". All references in this
Agreement to "Seller's Knowledge" or words of similar import shall refer only to
(a) material facts disclosed in writing by the existing property manager for the
Property in any final Manager's Closing Certificate (as described in Subsection
9.2.5), if received, and (b) the actual knowledge of Peter L. Ruggiero, Joseph
Cannon and William Anderson (herein collectively called the "DESIGNATED
EMPLOYEES") and shall not be construed to refer to the knowledge of any other
officer, agent or employee of Seller or any affiliate thereof or to impose or
have imposed upon the Designated Employees any duty to investigate the matters
to which such knowledge, or the absence thereof, pertains, including the
contents of the files, documents and materials made available to or disclosed to
Buyer or the contents of the files maintained by the Designated Employees. There
shall be no personal liability on the part of any of the Designated Employees
arising out of any representations or warranties made herein.
.3.3 Seller's Representations Deemed Modified. To the extent that
Buyer knows or is deemed to know at or prior to the Closing that Seller's
representations and warranties are inaccurate, untrue or incorrect in any way,
such representations and warranties shall be deemed modified to reflect Buyer's
knowledge or deemed knowledge, as the case may be. For purposes of this
Agreement, Buyer shall be "deemed to know" of the existence of a fact or
circumstance to the extent that such fact or circumstance is disclosed by this
Agreement, the Documents, any estoppel certificate executed by any tenant of the
Real Property and delivered to Buyer, or any studies, tests, reports, or
analyses prepared by or for Buyer or any of its employees, agents,
representatives or attorneys (all of the foregoing being herein collectively
called the "BUYER'S REPRESENTATIVES") or otherwise obtained by Buyer or Buyer's
Representatives discloses such fact or circumstance; and Buyer shall be "deemed
to know" that a representation or warranty was untrue, inaccurate or incorrect
to the extent that this Agreement, any of the Documents, any estoppel
certificate executed by any tenant of the Property and delivered to the Company
or any Buyer's Representative, or otherwise obtained by Buyer or any Buyer's
Representative, contains information which is inconsistent with such
representation or warranty.
.3.4 Notice of Breach; Seller's Right to Cure. If after the expiration
of the Exclusivity Period but prior to the Closing, Buyer or any Buyer's
Representative obtains actual knowledge that any of the representations or
warranties made herein by Seller are untrue, inaccurate or incorrect in any
material respect, Buyer shall give Seller written notice thereof within five (5)
Business Days of obtaining such knowledge (but, in any event, prior to the
Closing). If at or prior to the Closing, Seller obtains actual knowledge that
any of the representations or warranties made herein by Seller are untrue,
inaccurate or incorrect in any material respect (and prior to any deemed
modification thereof), Seller shall give Buyer written notice thereof within
five (5) Business Days of obtaining such knowledge (but, in any event, prior to
the Closing). In either such event, Seller shall have the right to cure such
misrepresentation or breach and shall be entitled to a reasonable adjournment of
the Closing (not to exceed ninety (90) days) for the purpose of such cure. If
Seller is unable or fails to so cure any such misrepresentation or breach of
warranty, then Buyer, as its sole remedy for any and all such materially untrue,
inaccurate or incorrect material representations or warranties, shall elect
either (a) to waive such misrepresentations or breaches of warranties and
consummate the Transactions without any reduction of or credit against the
Purchase Price, or (b) to terminate this Agreement by written notice given to
Seller on or prior to the Closing Date, as the Closing Date may have been
adjourned, in which event this Agreement shall be terminated, the Deposit shall
be returned to Buyer and, thereafter, neither party shall have any further
rights or obligations hereunder except as provided in any of this Agreement that
by its terms expressly provides that it survives the termination of this
Agreement. If any such representation or warranty is untrue, inaccurate or
incorrect, but is not untrue, inaccurate or incorrect in any material respect,
Buyer shall be deemed to have waived such misrepresentation or breach of
warranty, and Buyer shall be required to consummate the Transactions without any
reduction of or credit against the Purchase Price. The untruth, inaccuracy or
incorrectness of a representation or warranty shall be deemed material only if
Buyer's aggregate damages resulting from the untruth, inaccuracy or
incorrectness of the representations or warranties, taken together, are
reasonably estimated to exceed FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00).
.3.5 Survival; Limitation on Seller's Liability. The representations
and warranties made by Seller in Section 8.2 shall survive the Closing and not
be merged therein for a period of one hundred eighty (180) days after the date
of the Closing and Seller shall only be liable to Buyer hereunder for a
misrepresentation or breach of warranty made herein or in any of the documents
executed or delivered by Seller at or prior to the Closing with respect to which
a claim is made by Buyer against Seller on or before the one hundred eightieth
(180th) day after the date of the Closing. Anything in this Agreement to the
contrary notwithstanding, the maximum aggregate liability of Seller for Seller's
misrepresentations or breaches of warranties herein or in any documents executed
or delivered by Seller at or prior to the Closing (including, but not limited
to, any of Seller's representation letters delivered in lieu of tenant
estoppels) shall be limited as set forth in Section 14.16. Notwithstanding the
foregoing, however, if the Closing occurs, Buyer hereby expressly waives,
relinquishes and releases any right or remedy available to it at law, in equity
or under this Agreement to make a claim against Seller for damages that Buyer
may incur, or to rescind this Agreement and the Transaction, as the result of
any of Seller's representations or warranties being untrue, inaccurate or
incorrect if (a) Buyer knew or is deemed to know that such representation or
warranty was untrue, inaccurate or incorrect at the time of the Closing, or (b)
Buyer's damages as a result of all such representations or warranties being
untrue, inaccurate or incorrect, taken together, are reasonably estimated to
aggregate less than TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00).
ARTICLE 9
COVENANTS
.1 Buyer's Covenants. Buyer hereby covenants as follows:
.1.1 Confidentiality. Buyer acknowledges that any information
heretofore or hereafter furnished to Buyer or Lender with respect to the
Company, the Interests or the Property has been and will be so furnished on the
condition that Buyer and Lender maintain the confidentiality thereof.
Accordingly, Buyer shall hold, and shall cause Lender and Buyer's and Lender's
respective directors, officers and other personnel and representatives to hold,
in strict confidence, and not at any time disclose to any other person or entity
without the prior written consent of Seller, any of the information in respect
of the Company, the Interests or the Property delivered to or for the benefit of
Buyer or Lender whether by agents, consultants, employees or representatives of
Buyer or Lender or by Seller or any of its agents, representatives or employees,
including any information heretofore or hereafter obtained by Buyer, Lender or
any of Buyer's Representatives in connection with any studies, inspections,
testings or analyses conducted by or for the benefit of Buyer or Lender as part
of Buyer's or Lender's due diligence, as the case may be. If the Closing does
not occur on or before the date specified in Section 6.1, or if negotiations
with respect to the Transactions are terminated, Buyer shall promptly return, or
cause to be returned, to Seller all copies of documents containing any of such
information without retaining any copy thereof or extract therefrom.
Notwithstanding anything to the contrary set forth above in this Subsection
9.1.1, but subject to the immediately following sentence, Buyer or Lender may
disclose such information on a need-to-know basis to their respective employees,
members of professional firms serving it or potential lenders, and as necessary
in order to comply with applicable laws and New York Stock Exchange Rules and
Regulations. Buyer and Seller, for themselves and their respective affiliates,
agree that any disclosure pursuant to this Subsection 9.1.1 or otherwise shall
(i) be consistent with the structure of the Transactions and exclude mention of
any of the terms of this Agreement or the Transactions or any other information
obtained during the course of Buyer's or Lender's due diligence that is not
required, by law or New York Stock Exchange Rules and Regulations, to be
disclosed, (ii) describe the overall form of the Transactions, and (iii) to the
fullest extent possible, must be pre-approved by Seller in writing. Buyer and
Seller agree that, notwithstanding any provision in this Agreement, the
Operating Agreement or any other agreement or document to the contrary, any
damages suffered by Seller for the failure of Buyer or Lender to comply with the
terms of this Subsection 9.1.1 shall be the responsibility of Buyer. By Buyer's
execution of this Agreement, Buyer hereby confirms its agreement to defend,
indemnify, and hold harmless Seller for all claims, damages and expenses
resulting from Buyer's or Lender's breach of this Subsection 9.1.1.
.1.2 Buyer's Indemnity; Delivery of Reports. Buyer hereby agrees to
indemnify, defend, and hold Seller, its counsel, Broker, its sales agents or any
partner, officer, director, employee, agent or attorney of Seller, its counsel,
Broker or its sales agents or any other party related in any way to the
foregoing (all of which parties are herein collectively called the "SELLER
PARTIES") free and harmless from and against any and all costs, loss, damages
and expenses, of any kind or nature whatsoever (including attorneys fees and
costs), arising out of or resulting from the breach of the terms of Subsection
9.1.1 or the entry and/or the conduct of activities upon the Real Property by
Buyer or any Buyer's Representative in connection with the inspections,
examinations, testings and investigations of the Property conducted at any time
prior to the Closing, which indemnity shall survive the Closing (and not be
merged therein) or any earlier termination of this Agreement. Buyer shall
deliver promptly to Seller copies of all third party reports commissioned by or
on behalf of Buyer evidencing the results of tests, studies or inspections of
the Property.
.1.3 Limit on Government Contacts. Notwithstanding any provision in
this Agreement to the contrary, except in connection with the preparation of a
so-called "Phase I" environmental report with respect to the Real Property,
Buyer shall not contact any governmental official or representative regarding
the environmental condition of the Real Property without Seller's prior written
consent thereto, which consent shall not be unreasonably withheld or delayed. In
addition, if Seller's consent is obtained by Buyer, Seller shall be entitled to
receive at least five (5) days' prior written notice of the intended contact and
to have a representative present when Buyer has any such contact with any
governmental official or representative.
.1.4 Managing Agent; Collective Bargaining Agreement Obligations. As
of the Closing Date, the Company will enter into a leasing and management
agreement with S.L. Green Management Corp. ("MANAGER"), an affiliate of Buyer,
to lease, operate and manage the Property in the form of EXHIBIT W (the
"MANAGEMENT AGREEMENT"). Any employees at the Real Property who are subject to
any collective bargaining agreement and such collective bargaining agreements
are listed on EXHIBIT X. To the extent any collective bargaining agreement has
been terminated or cancelled in connection with the Transactions, the Company
may, but shall not be obligated to, cause the Manager to offer employment to,
and hire any or all employees formerly covered by, such terminated collective
bargaining agreement. At Closing, Buyer shall, and shall cause SLG and Manager
to, indemnify, defend and hold Seller free and harmless from and against any and
all liability, claims, actions, damages, judgments, penalties, costs and
expenses, including reasonable attorney's fees, accruing under or with respect
to the agreements listed on EXHIBIT X after the date of the Closing to the
extent such liabilities, claims, actions, damages, judgments, penalties, costs
and expenses are related to actions taken, or omitted to be taken, by Buyer, the
Company or Manager. Further, Buyer shall, and shall cause SLG and Manager to,
indemnify, defend and hold Seller free and harmless from and against any and all
liability, claims, actions, damages, judgments, penalties and expenses,
including reasonable attorney's fees, arising out of any claim that Buyer, the
Company or Manager shall have failed to adopt and/or assume any collective
bargaining agreement and/or shall have failed to offer employment to all
employees covered by such agreements, including any claims for termination pay;
provided that the Company shall reimburse Buyer, SLG and/or Manager, as the case
may be, an amount equal to ordinary and customary termination pay given to
employees to whom employment was not offered. Buyer and Seller acknowledge that
the agreement with Pritchard Industries automatically terminates in accordance
with its terms at Closing. If Buyer and Seller mutually determine that written
notice must be made to Pritchard Industries to effect or to confirm termination,
Buyer and Seller shall cause an appropriate notice, in form and substance
mutually satisfactory to Buyer and Seller, to be made to Pritchard Industries.
.1.5 Contacting Labor Unions. Prior to the Closing, Buyer shall not
contact any official, representative or member of any labor union concerning the
Property without Seller's prior written consent, which consent may be granted or
withheld in Seller's sole discretion.
9.1.6 Survival. The provisions of Section 9.1 shall survive the
Closing or the earlier termination of this Agreement.
.2 Seller's Covenants. Seller hereby covenants as follows:
.2.1 Service Contracts. From and after the date hereof and until the
first to occur of (i) the termination of this Agreement or (ii) the Closing
Date, Seller will not enter into, extend, renew, replace or modify any Contract
affecting all or a portion of the Property without the prior written consent of
Buyer, which consent will not be unreasonably withheld, conditioned or delayed.
Seller shall furnish Buyer with a written notice of the proposed action, which
shall contain information regarding the proposed action Seller believes is
reasonably necessary to enable Buyer to make informed decisions with respect to
the advisability of the proposed action. Any notice from Buyer rejecting the
proposed action shall include a description of the reasons for Buyer's
rejection. The foregoing consent requirement will not apply to any Contract
entered into in the ordinary course of business (as extended, renewed, replaced
or modified in the ordinary course of business) that can be terminated by the
owner of the Property without penalty on not more than thirty (30) days' notice.
.2.2 Maintenance of Property. Except to the extent Seller is relieved
of such obligations by Article 11 and except with respect to facade maintenance
and/or remediation (which shall be performed in accordance with Section 9.2.6),
between the date hereof and the Closing Date, Seller shall maintain and keep the
Property in a manner consistent with Seller's past practices with respect to the
Property; provided, however, that Buyer hereby agrees that the Company shall
accept the Property subject to, and Seller shall have no obligation to cure, any
violations of Laws, and any physical conditions that would give rise to
violations, that exist on the last day of the Exclusivity Period or that arise
between the last day of the Exclusivity Period and the Closing Date. Between the
date hereof and the Closing Date, Seller will promptly advise Buyer of any
written notice Seller receives after the date hereof from any governmental
authority of the violation of any Laws regulating the condition or use of the
Property.
.2.3 Access to Property. Between the date hereof and the Closing Date
(such period the "CONTRACT PERIOD"), Seller shall allow Buyer or Buyer's
Representatives access to the Property upon reasonable prior notice at
reasonable times provided (a) such access does not interfere with the rights of
tenants or otherwise unreasonably interfere with the operation of the Property;
(b) Buyer shall not contact any tenant without Seller's prior written consent,
which shall not be unreasonably withheld or delayed; (c) Seller or its
designated representative shall have the right to pre-approve (which approval
shall not be unreasonably withheld or delayed) and be present during any
physical testing of the Property; and (d) Buyer shall return the Property to the
condition existing prior to such tests and inspections. Prior to such time as
Buyer or any Buyer's Representative enters the Real Property, Buyer shall obtain
policies of general liability insurance which insure Buyer, its agents and
representatives with liability insurance limits of not less than ONE MILLION AND
NO/100 DOLLARS ($1,000,000.00) combined single limit for personal injury and
property damage and name Seller and the managing agent of the Real Property as
additional insureds and which are with such insurance companies, provide such
coverages and carry such other limits as Seller shall reasonably require, and
provide Seller with certificates of insurance evidencing that Buyer has obtained
the aforementioned policies of insurance. Buyer hereby agrees that no
information obtained pursuant to the foregoing or any additional investigations
performed during the Contract Period shall (i) entitle Buyer to any adjustment
in the Purchase Price or (ii) create any additional conditions precedent to
Buyer's obligations to perform under this Agreement. The provisions of this
Subsection 9.2.3 shall survive the Closing or any earlier termination of this
Agreement.
.2.4 Confidentiality. (a) To the extent Buyer provides to Seller
information not available to the public in respect of Buyer and/or SLG, then as
long as such information continues to be non-public information, Seller shall
hold, and shall cause its directors, officers and other personnel and
representatives to hold any such information, in strict confidence, and not
disclose to any other person or entity (other than (i) investors in any separate
account for whose benefit Seller's interest in the Company is to be held or any
advisory council or other similar body or (ii) counsel, accountants and advisors
such party deems necessary, and only to the extent such investors, advisory
council (including Prudential's Investment Management Committee) or other
similar body, counsel, accountants and advisors agree to keep the same strictly
confidential) without the prior written consent of Buyer, which consent shall
not be unreasonably withheld or delayed. If the Closing does not occur, Seller
shall promptly return to Buyer all copies of documents containing any of such
information without retaining any copy thereof or extract therefrom.
Notwithstanding anything to the contrary set forth in this Subsection 9.2.4,
Seller may disclose such information on a need-to-know basis to its employees,
members of professional firms serving it or potential lenders, and as any
governmental agency may require in order to comply with applicable laws. Seller
hereby confirms its agreement to defend, indemnify, and hold harmless Buyer for
all claims, damages and expenses resulting from Seller's breach of this
Subsection 9.2.4. The provisions of this Subsection 9.2.4 shall survive the
Closing or any earlier termination of this Agreement.
(b) Seller is aware, and agrees to inform all persons to whom Seller
provides such non-public information, that the United States securities laws
prohibit any person who has received, from an issuer, material, non-public
information such as the information in question, from purchasing or selling the
securities of such issuer or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities.
9.2.5 Property Manager's Closing Certificate; Property Manager
Termination. (a) Seller shall request that the existing property manager of the
Property provide to Seller prior to the Closing a certificate certifying as to
the matters described in Subsection 8.2.2 to the extent appropriate. If Seller
receives an executed version of such a certificate from the property manager (as
the same may be amended or modified by the property manager, the "MANAGER'S
CLOSING CERTIFICATE"), Seller shall deliver a copy of the same to Buyer promptly
after receipt of the same. Buyer acknowledges and agrees that neither Buyer nor
the Company shall be entitled to rely on the Manager's Closing Certificate and
that a copy of the same will be provided to Buyer, if received, for
informational purposes only.
(b) Seller shall cause the termination of the agreement with the
existing manager of the Property effective as of the Closing Date.
9.2.6 Facade Remediation. (a) Prior to Closing, Buyer and Seller shall
jointly (i) determine the scope and extent of all facade remediation work, if
any, necessary so that the Property complies with so-called "Local Law 10" and
"Local Law 11" of The City of New York, (ii) determine a plan of action with
respect to the general scope of facade remediation, including a budget for
effectuating such plan, (iii) notwithstanding anything in the Management
Agreement to the contrary, hire the architect, project engineer and contractors
to effectuate such plan pursuant to agreements mutually satisfactory to Seller
and Buyer, and (iv) in connection therewith, approve plans and specifications,
drawings and all change orders. Seller shall be responsible for the costs of all
such facade remediation work in accordance with the provisions of the approved
contracts.
(b) If Buyer and Seller are not able to agree as to any matter
referred to in Subsection 9.2.6(a), either Buyer or Seller may submit the issue
to arbitration in New York, New York in accordance with the Commercial
Arbitration Rules or other appropriate rules of the American Arbitration
Association ("AAA"). The laws of the State of New York shall be deemed to apply
and control in such arbitration. If the AAA is not then in existence or does not
desire to act, then either party may apply to a New York court having
jurisdiction for the appointment of an arbitrator to hear the parties and
determine the matter. Provided the rules and regulations of the AAA or the
court, as the case may be, so permit, the AAA or such court shall select a
single arbitrator within five (5) Business Days after such submissions or
application, the arbitration shall commence five (5) Business Days thereafter
and, if necessary, shall be conducted for at least seven (7) hours on each
Business Day thereafter until completion. Neither Buyer nor Seller shall have
more than a total of seven (7) hours to present its case and to cross-examine or
interrogate Persons supplying information or documentation on behalf of the
other party, and the arbitrator shall render a decision (including an award of
costs to the prevailing party) within ten (10) days after conclusion of the
arbitration, which will be final and conclusive upon both parties. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The parties submit to the IN PERSONAM jurisdiction and
venue of the United States District Court for the Southern District of New York
and the Supreme Court of the State of New York, New York County for the purpose
of confirming any such award and entering judgment thereon.
9.2.7 Limited Guaranty Agreement of Rent Payments. Seller shall
guaranty, in favor of the Company and solely in respect of Suites 2100, 2400,
and 3601 of the Property, the receipt of not less than ONE MILLION AND NO/100
DOLLARS ($1,000,000.00) in total gross rent payments (without reference to
so-called "pass-throughs" or "reimbursables") during the one year period
commencing on the Closing Date. The guaranty shall be substantially in the form
of EXHIBIT Z (the "LIMITED GUARANTY AGREEMENT") and shall not be construed under
any circumstances to be an assumption by Seller of any obligation with respect
to reimbursable expenses, tenant improvement allowances, tenant work and the
like (it being understood and agreed that such reimbursable expenses and capital
costs shall be the costs of the Company). Amounts paid by Seller pursuant to
this guaranty shall be net of all gross rent payments (without reference to
so-called "pass-throughs" or "reimbursables") actually received by the Company
with respect to such suites during such period. Notwithstanding the foregoing,
Buyer and Seller agree that sixty percent (60%) of the aggregate amount actually
paid by Seller to the Company pursuant to the Limited Guaranty Agreement shall
be reimbursed by the Company to Seller, without interest, (a) in equal monthly
installments over an 18-month period, commencing on the first day of the first
month after the month in which the third (3rd) anniversary of the Closing Date
occurs; or (b) on any earlier date on which the Property or the Interests are
transferred. The obligations of Seller under this Subsection 9.2.7 shall survive
the Closing and shall not be merged therein.
.3 Mutual Covenants.
.3.1 Publicity. Seller and Buyer each hereby covenants that prior to
the Closing neither Buyer nor Seller shall issue any press release or public
statement (a "RELEASE") with respect to the Transactions without the prior
written consent of the other except to the extent required by law and New York
Stock Exchange Rules and Regulations. After the Closing, any Release issued by
either Buyer or Seller or their respective affiliates shall be subject to the
prior review and approval of the other party (not be unreasonably withheld,
conditioned or delayed), except to the extent required by law and New York Stock
Exchange Rules and Regulations. Notwithstanding anything to the contrary
contained in this Subsection 9.3.1, Buyer and Seller, for themselves and their
respective affiliates, agree that any Release issued pursuant to this Subsection
9.3.1 shall, if applicable, (i) be consistent with the structure of the
Transactions and exclude mention of any of the terms of this Agreement or the
Transactions that is not required, by law or New York Stock Exchange Rules and
Regulations, to be disclosed, (ii) describe the overall form of the
Transactions, and (iii) to the fullest extent possible, must be pre-approved by
the other party in writing (not to be unreasonably withheld or delayed). Buyer
and Seller agree that, notwithstanding any provision in this letter, the
Agreement, the Operating Agreement or any other agreement or document to the
contrary, any damages suffered by Buyer or Seller for the failure of the other
party to comply with the terms of this Subsection 9.3.1 shall be the
responsibility of the breaching party.
.3.2 Broker. Seller shall pay a brokerage commission due in connection
with the Transactions to Broker pursuant to a separate agreement, and Buyer
shall be responsible for commissions or other fees of any other brokers with
whom it has dealt. Seller agrees to hold Buyer harmless and indemnify Buyer from
and against any and all damages, costs or expenses (including reasonable
attorneys' fees and disbursements) suffered by Buyer as a result of any claims
by any party claiming to have represented Seller as broker in connection with
the Transactions. Buyer agrees to hold Seller harmless and indemnify Seller from
and against any and all damages, costs or expenses (including reasonable
attorneys' fees and disbursements) suffered by Seller as a result of any claims
by any party claiming to have represented Buyer as broker in connection with the
Transactions.
.3.3 Tax and Accounting Information. Buyer and Seller agree, for
themselves and their respective affiliates, to maintain and apply at all times
consistent and uniform practices and procedures with respect to any tax or
accounting matters relating to the Transactions or the interests in the Company.
Any disclosure by Buyer, Seller or any of their respective affiliates of any tax
or accounting information relating to the Transactions or the interests in the
Company (whether disclosed pursuant to, or as part of, a filing of any tax
returns, financial statements or other documents with a government agency, the
New York Stock Exchange or otherwise) (the "TAX AND ACCOUNTING INFORMATION")
shall be subject to the prior review and approval of the other party, except to
the extent required by law and New York Stock Exchange Rules and Regulations.
Notwithstanding anything to the contrary contained in this Subsection 9.3.3,
Buyer and Seller agree, for themselves and their respective affiliates, that any
disclosure of Tax and Accounting Information shall, if applicable, (a) be
consistent with the structure of the Transactions and exclude mention of any of
the terms of this Agreement or the Transactions that is not required, by law or
New York Stock Exchange Rules and Regulations, to be disclosed, and (b) to the
fullest extent possible, must be pre-approved by the other party in writing.
Buyer and Seller agree that, notwithstanding any provision in this Agreement,
the Operating Agreement or any other agreement or document to the contrary, any
damages suffered by any party for the failure of the other party to comply with
the terms of this Subsection 9.3.3 shall be the responsibility of the party that
has breached the terms hereof.
.3.4 Tax Protests; Tax Refunds and Credits. Seller shall have the
right to continue and to control the progress of and to make all decisions with
respect to any contest of the real estate taxes for the Property due and payable
for the applicable tax year in which the Closing occurs and all prior tax years.
The Company shall have the right to control the progress of and to make all
decisions with respect to any contest of the real estate taxes for the Property
due and payable for all tax years subsequent to the tax year in which the
Closing occurs. All real estate tax refunds and credits received after the
Closing with respect to the Property shall be applied in the following order of
priority: first, to pay the costs and expenses (including attorneys' fees and
disbursements) incurred in connection with obtaining such tax refund or credit;
second, to pay any amounts due to any past or present tenant of the Real
Property as a result of such tax refund or credit to the extent required
pursuant to the terms of the Leases; and third, apportioned between the Company
and Seller as follows:
(a) with respect to any refunds or credits attributable to real estate
taxes due and payable in the tax year in which the Closing occurs (regardless of
the tax year for which such taxes are assessed), such refunds and credits shall
be apportioned between the Company and Seller in proportion to the number of
days in such tax year that each party owned the Property (with title to the
Property being deemed to have passed as of 12:01 a.m. on the Closing Date);
(b) with respect to any refunds or credits attributable to real estate
taxes due and payable during any period prior to the tax year in which the
Closing occurs (regardless of the tax year for which such taxes are assessed),
Seller shall be entitled to the entire refunds and credits; and
(c) with respect to any refunds or credits attributable to real estate
taxes due and payable during any period after the tax year in which the Closing
occurs (regardless of the tax year for which such taxes are assessed), the
Company shall be entitled to the entire refunds and credits.
.3.5 Survival. The provisions of this Section 9.3 shall survive the
Closing (and not be merged therein) or earlier termination of this Agreement for
a period equal to the longer of ten (10) years or the duration of the Company.
ARTICLE 10
FAILURE OF CONDITIONS
.1 To Seller's Obligations. If, on or prior to the Closing Date, (a) Buyer
is in default of any of its obligations hereunder, or (b) any of Buyer's
representations or warranties is untrue, inaccurate or incorrect in any material
respect, or (c) the Closing otherwise fails to occur by reason of Buyer's
failure or refusal to perform its obligations hereunder in a prompt and timely
manner, then Seller may elect to either (i) terminate this Agreement by written
notice to Buyer; or (ii) proceed to close the Transactions. Seller's failure to
either (A) form the Company or (B) transfer the Property to the Company shall
not constitute a failure of condition precedent under this Agreement, if Seller
notified Buyer in writing that Buyer has failed a condition precedent to Buyer's
obligations under this Agreement, which condition had not theretofore been
satisfied or waived, and as a consequence thereof, Seller was not prepared
either to form the Company or to transfer the Property thereto. If this
Agreement is so terminated, then Seller shall be entitled to the Deposit and may
request that Escrow Agent deliver the Deposit to Seller pursuant to the terms of
Article 12, whether held as cash or as a letter of credit, as liquidated
damages, and thereafter neither party to this Agreement shall have any further
rights or obligations hereunder other than any arising under any Section herein
which expressly provides that it survives the termination of this Agreement.
.2 To Buyer's Obligations. If, at the Closing, (a) Seller is in default of
any of its obligations hereunder, or (b) any of Seller's representations or
warranties are untrue, inaccurate or incorrect in any material respect, or (c)
the Closing otherwise fails to occur by reason of Seller's failure or refusal to
perform its obligations hereunder in a prompt and timely manner, then Buyer
shall have the right, to elect, as its sole and exclusive remedy, to (i)
terminate this Agreement by written notice to Seller, promptly after which the
Deposit shall be returned to Buyer, or (ii) waive the condition and proceed to
close the Transactions, or (iii) seek specific performance of this Agreement by
Seller. As a condition precedent to Buyer exercising any right it may have to
bring an action for specific performance hereunder, Buyer must commence such an
action within ninety (90) days after the occurrence of Seller's default. Buyer
agrees that its failure to timely commence such an action for specific
performance within such ninety (90) day period shall be deemed a waiver by it of
its right to commence an action for specific performance as well as a waiver by
it of any right it may have to file or record a notice of LIS PENDENS or notice
of pendency of action or similar notice against any portion of the Real
Property.
ARTICLE 11
CONDEMNATION/CASUALTY
.1 Condemnation.
.1.1 Right to Terminate. If, prior to the Closing Date, all or any
significant portion (as hereinafter defined) of the Real Property is taken by
eminent domain (or is the subject of a pending taking which has not yet been
consummated), Seller shall notify Buyer in writing of such fact promptly after
obtaining actual knowledge thereof, and, thereafter, either Buyer or Seller
shall have the right, at its respective election, to terminate this Agreement by
giving written notice to the other no later than ten (10) days after the giving
of Seller's notice, and the Closing Date shall be extended, if necessary, to
provide sufficient time for Buyer or Seller to make such election. The failure
by Buyer and Seller to so elect in writing to terminate this Agreement within
such ten (10) day period shall be deemed an election not to terminate this
Agreement. For purposes hereof, a "SIGNIFICANT PORTION" of the Real Property
shall mean such a portion as shall have a value, as reasonably determined by
Seller, in excess of FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00). If either
party elects to terminate this Agreement as aforesaid, the provisions of Section
11.4 shall apply.
.1.2 Assignment of Proceeds. If (a) neither Seller nor Buyer elects to
terminate this Agreement as provided for in Subsection 11.1.1 hereof, or (b) a
portion of the Real Property not constituting a significant portion of the Real
Property is taken or becomes subject to a pending taking, by eminent domain,
there shall be no abatement of the Purchase Price; provided, however, that, at
the Closing, Seller shall pay to the Company the amount of any award for or
other proceeds on account of such taking which have been actually paid to Seller
on or prior to the Closing Date as a result of such taking (less all costs and
expenses, including reasonable attorneys' fees and disbursements, incurred by
Seller as of the Closing Date in obtaining payment of such award or proceeds)
and, to the extent such award or proceeds have not been paid, Seller shall
assign to the Company at the Closing (without recourse to Seller) the rights of
Seller to, and the Company shall be entitled to receive and retain, all awards
for the taking of the Real Property or such portion thereof.
.2 Destruction or Damage. If any of the Property is damaged or destroyed
prior to the Closing Date, Seller shall notify Buyer in writing of such fact
promptly after obtaining actual knowledge thereof. If any such damage or
destruction (a) is an insured casualty and (b) would cost less than FIVE MILLION
AND NO/100 DOLLARS ($5,000,000.00) to repair or restore, then this Agreement
shall remain in full force and effect and Buyer shall acquire the Interests upon
the terms and conditions set forth herein. In such event, Seller shall pay to
the Company at Closing an amount equal to the deductible applicable under
Seller's casualty policy, less all costs and expenses, including reasonable
attorneys' fees and disbursements, incurred by Seller as of the Closing Date in
connection with the negotiation and/or settlement of the casualty claim with the
insurer (the "REALIZATION COSTS"), and Seller shall assign to the Company all of
Seller's right, title and interest in and to all proceeds of insurance on
account of such damage or destruction. If the Property is damaged or destroyed
prior to the Closing Date and the cost of repair would equal or exceed FIVE
MILLION AND NO/100 DOLLARS ($5,000,000.00) or the casualty is an uninsured
casualty, then, notwithstanding anything to the contrary set forth above in this
Section 11.2, either Buyer or Seller shall have the right, at its respective
election, to terminate this Agreement. Buyer and Seller shall have thirty (30)
days after Seller notifies Buyer that such a casualty has occurred to make such
election by delivery to the other of a written election notice (the "ELECTION
NOTICE") and the Closing Date shall be extended, if necessary, to provide
sufficient time for Buyer or Seller to make such election. The failure by Buyer
and Seller to deliver the Election Notice within such thirty (30) day period
shall be deemed an election not to terminate this Agreement. If neither party
elects to terminate this Agreement as set forth above, this Agreement shall
remain in full force and effect, Seller shall assign to Buyer all of Seller's
right, title and interest in and to any and all proceeds of insurance on account
of such damage or destruction, if any, and, if the casualty was an insured
casualty, Seller shall pay the Company at Closing an amount equal to the
deductible (less the Realization Costs) under Seller's casualty insurance policy
(it being understood that the Company shall be responsible for any such
deductible thereafter).
.3 Insurance. Seller shall maintain the property insurance coverage
currently in effect for the Property through the Closing Date.
.4 Effect of Termination. If this Agreement is terminated pursuant to
Section 11.1 or Section 11.2, the Deposit shall be returned to Buyer. Upon such
refund, this Agreement shall terminate and neither party to this Agreement shall
have any further rights or obligations hereunder other than any arising under
any Section herein which expressly provides that it survives the termination of
this Agreement.
.5 Waiver. The provisions of this Article 11 supersede the provisions of
any applicable Laws with respect to the subject matter of this Article 11.
ARTICLE 12
ESCROW
.1 Escrow Deposits. The Deposit and any other sums that the parties agree
shall be held in escrow (herein collectively called the "ESCROW DEPOSITS"),
together with any interest earned thereon, shall be held by Escrow Agent, in
trust, and disposed of only in accordance with the following provisions.
(a) Escrow Agent shall invest the Deposit, if made in cash, in an
interest-bearing account at Citibank, N.A. and shall not commingle the Escrow
Deposits with any funds of Escrow Agent or others.
(b) If the Closing occurs, Escrow Agent shall deliver the Escrow
Deposits if held as cash to, or upon the instructions of, Seller on the Closing
Date. If the Deposit is held as a letter of credit then upon the Closing, Escrow
Agent shall return such letter of credit to Buyer.
(c) If for any reason the Closing does not occur, Escrow Agent shall
deliver the Escrow Deposits (and all interest earned thereon if made in cash) to
Seller or Buyer only upon receipt of a written demand therefor from such party,
subject to the following provisions of this Subsection 12.1(c) or of Section
12.4, as applicable. If for any reason the Closing does not occur and Escrow
Agent receives a written demand for payment of Escrow Deposits (and all interest
earned thereon if made in cash) or a written demand for delivery of the Letter
of Credit (if the Deposit was made with a letter of credit), Escrow Agent shall
give written notice to the other party of such demand. If Escrow Agent does not
receive a written objection from the other party to either the proposed payment
or the proposed delivery of the Letter of Credit within ten (10) days after the
giving of such notice, Escrow Agent is hereby authorized to make such payment or
deliver the Letter of Credit to the party making the demand. If Escrow Agent
does receive such written objection within such period, Escrow Agent shall
continue to hold the Escrow Deposits until otherwise directed by written
instructions signed by Seller and Buyer or a final judgment of a court.
.2 Indemnity. The parties acknowledge that Escrow Agent is acting solely as
a stakeholder at their request and for their convenience, that Escrow Agent
shall not be deemed to be the agent of either of the parties, and that Escrow
Agent shall not be liable to either of the parties for any action or omission on
its part taken or made in good faith, and not in disregard of this Agreement,
but shall be liable for its negligent acts and for any loss, cost or expense
incurred by Seller or Buyer resulting from Escrow Agent's mistake of law
respecting the Escrow Agent's scope or nature of its duties. Seller and Buyer
shall jointly and severally indemnify and hold Escrow Agent harmless from and
against all costs, claims and expenses, including reasonable attorneys' fees,
incurred in connection with the performance of Escrow Agent's duties hereunder,
except with respect to actions or omissions taken or made by Escrow Agent in bad
faith, in disregard of this Agreement or involving negligence on the part of
Escrow Agent.
.3 Income Tax. Buyer shall pay any income taxes on any interest earned on
and any other income derived from the Escrow Deposits. Buyer represents and
warrants to Escrow Agent that its taxpayer identification number is pending.
.4 Letter of Credit. If Buyer chooses to deliver a Letter of Credit instead
of cash as the Deposit pursuant to Section 2.2, such Letter of Credit shall (a)
be delivered to Escrow Agent, (b) be payable to Seller as beneficiary, (c) have
an expiration date not earlier than one year from its date of issuance, (d) be
in a face amount of SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS AND NO/100
DOLLARS ($7,500,000.00), (e) be drawable by Seller upon presentation to the
issuer of a writing signed by a duly authorized officer of Seller stating either
(i) that the beneficiary is entitled to receipt of the Deposit pursuant to the
terms of this Agreement or (ii) the Letter of Credit will expire within thirty
(30) days of the date on which the drawing is made and no replacement Letter of
Credit has been delivered to Escrow Agent, and (f) shall constitute an
irrevocable obligation by the issuer to make payment to Seller in the full
amount outstanding under such Letter of Credit upon receipt of such a writing.
If Seller draws upon the Letter of Credit in the circumstances described in
Clause (ii), Seller shall be obligated to deliver the proceeds thereof to Escrow
Agent who will hold the same as if the Deposit were made in cash pursuant to the
terms of this Agreement.
.5 Confirmation of Escrow. Escrow Agent has executed this Agreement in the
place indicated on the signature pages hereof in order to confirm that Escrow
Agent has received and shall (a) hold the Escrow Deposits if the same is made in
cash, and the interest earned thereon and any other income derived therefrom, in
escrow, and shall disburse the Escrow Deposits and the interest earned thereon
and any other income derived therefrom, pursuant to the provisions of this
Article 12, or (b) has received the Letter of Credit and shall hold such Letter
of Credit until the Closing or demand is made upon Escrow Agent for such Letter
of Credit pursuant to this Article 12.
ARTICLE 13
LEASE EXPENSES
.1 Certain Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
"NEW LEASES" shall mean, collectively, any lease for space at the Real
Property entered into between the Contract Date and the Closing Date.
"PRE-CONTRACT LEASES" shall mean, collectively, any lease for space at
the Real Property in effect as of the Contract Date.
"REIMBURSABLE LEASE EXPENSES" shall mean, collectively, any and all
fees paid by Seller prior to the Closing or costs and expenses incurred by
Seller prior to the Closing arising out of or in connection with any extensions,
renewals or expansions under any Lease exercised or granted between the Contract
Date and the Closing Date, and any New Lease entered into in accordance with
this Agreement. The Reimbursable Lease Expenses shall include (a) brokerage
commissions and fees to effect any such leasing transaction, (b) expenses
incurred for repairs, improvements, equipment, painting, decorating,
partitioning and other items to satisfy the tenant's requirements with regard to
such leasing transaction, (c) legal fees for services rendered in connection
with the preparation of documents and other services rendered in connection with
the effectuation of the leasing transaction, (d) if there are any rent
concessions covering any period that the tenant has the right to be in
possession of the demised space, the rents that would have accrued during the
period of such concession prior to the Closing Date as if such concession were
amortized over (i) with respect to any extension or renewal, the term of such
extension or renewal, (ii) with respect to any expansion, that portion of the
term remaining under the subject Lease after the date of any expansion, or (iii)
with respect to any New Lease, the entire initial term of any such New Lease,
and (e) expenses incurred for the purpose of satisfying or terminating the
obligations of a tenant under a New Lease to the landlord under another lease
(whether or not such other lease covers space in the Real Property).
.2 Future Agreements and Modifications. From and after the date hereof and
until the first to occur of (i) the termination of this Agreement or (ii) the
Closing Date, Seller will not enter into any New Leases or amendments to
Pre-Contract Leases affecting all or a portion of the Property without the prior
written consent of Buyer, which consent will not be unreasonably withheld,
conditioned or delayed. Seller shall furnish Buyer with a written notice of the
proposed action which shall contain information regarding the proposed action
Seller believes is reasonably necessary to enable Buyer to make informed
decisions with respect to the advisability of the proposed action. Any notice
from Buyer rejecting the proposed action shall include a description of the
reasons for Buyer's rejection. The foregoing consent requirement will not apply
to any New Leases or unexecuted amendments to Pre-Contract Leases submitted to
prospective or existing tenants for signature prior to the date hereof, provided
that copies of any such new Leases or amendments to Pre-Contract Leases have
been delivered to Buyer prior to the later of (y) the date hereof or (z) the
date of any such amendment, modification, renewal, extension or expansion
provided for or required by the terms of any Pre-Contract Lease.
.3 Lease and Contract Expenses. The Company will be responsible for all
obligations payable on or after the Closing Date pursuant to Pre-Contract
Leases, New Leases entered into in accordance with this Agreement, and Contracts
in effect as of the Closing Date, subject to the limitations set forth in
Subsection 9.2.1. Such obligations, with respect to Pre-Contract Leases and New
Leases, shall include all tenant costs and capital costs thereunder for which
landlord is responsible, including free rent, tenant improvement allowances,
tenant work and the like, provided that Seller was not obligated to complete
fully or otherwise fully perform the foregoing prior to the Closing Date.
Notwithstanding the foregoing, except as set forth in Subsection 9.2.6 and
except for any leasing commissions resulting from any lease extension entered
into with the law firm of Kreindler & Kreindler (the cost of which shall be
borne by the Company), Seller will be responsible for any such obligation if,
and to the extent, as of the Contract Date, such obligation was enforceable
against, or payable by, Seller as a result of a state of facts existing on the
Contract Date (without regard to when the obligation is payable or to be
otherwise performed). By way of example, but without limitation of the
generality of the foregoing, Seller will be responsible for all leasing
commissions that are payable in installments with respect to an effective
Pre-Contract Lease in its current lease term, but will not be responsible for
any leasing commissions that become payable only upon the exercise of an
extension option on a Pre-Contract Lease, which option has not been exercised on
or prior to the Contract Date.
.4 Lease Enforcement. Prior to the Closing Date, Seller shall have the
right, but not the obligation (except to the extent that Seller's failure to act
shall constitute a waiver of such rights or remedies), to enforce the rights and
remedies of the landlord under any Pre-Contract Lease or New Lease, by summary
proceedings or otherwise (including the right to remove any tenant), and to
apply all or any portion of any security deposits then held by Seller toward any
loss or damage incurred by Seller by reason of any defaults by tenants, and the
exercise of any such rights or remedies shall not affect the obligations of
Buyer under this Agreement in any manner or entitle Buyer to a reduction in, or
credit or allowance against, the Purchase Price or give rise to any other claim
on the part of Buyer.
ARTICLE 14
MISCELLANEOUS
.1 Assignment. Neither Buyer nor Seller shall assign this Agreement or
their respective rights hereunder to any individual or entity without the prior
written consent of the other party, which consent such party may grant or
withhold in its sole discretion, and any such assignment shall be null and void
AB INITIO. Notwithstanding the foregoing, Seller may assign its rights under
this Agreement to a wholly owned subsidiary of Seller.
.2 Designation Agreement. Section 6045(e) of the Internal Revenue Code and
the regulations promulgated thereunder (herein collectively called the
"REPORTING REQUIREMENTS") require an information return to be made to the United
States Internal Revenue Service, and a statement to be furnished to Seller, in
connection with the Transactions. Escrow Agent is either the person responsible
for closing the Transactions (as described in the Reporting Requirements) or the
disbursing title or escrow company that is most significant in terms of gross
proceeds disbursed in connection with the Transactions (as described in the
Reporting Requirements) (Escrow Agent in such capacity, "AGENT"). Accordingly:
(a) Agent is hereby designated as the "REPORTING PERSON" (as defined
in the Reporting Requirements) for the Transactions. Agent shall perform all
duties that are required by the Reporting Requirements to be performed by the
Reporting Person for the Transactions.
(b) Seller and Buyer shall furnish, and shall cause the Company to
furnish, to Agent, in a timely manner, any information requested by Agent and
necessary for Agent to perform its duties as Reporting Person for the
Transactions.
(c) Agent hereby requests Seller to furnish to Agent Seller's correct
taxpayer identification number. Seller acknowledges that any failure by Seller
to provide Agent with Seller's correct taxpayer identification number may
subject Seller to civil or criminal penalties imposed by law. Accordingly,
Seller hereby certifies to Agent, under penalties of perjury, that Seller's
correct taxpayer identification number is 22-1211670.
(d) Each of the parties hereto shall retain this Agreement for a
period of four (4) years following the calendar year during which the Closing
occurs.
.3 Survival/Merger. Except for the provisions of this Agreement that are
explicitly stated to survive the Closing, (a) none of the terms of this
Agreement shall survive the Closing, and (b) the delivery of the Deed and any
other documents and instruments by Seller and the acceptance thereof by the
Company or Buyer (as the case may be) shall effect a merger, and be deemed the
full performance and discharge of every obligation on the part of Buyer, the
Company and Seller to be performed hereunder.
.4 Integration; Waiver. This Agreement, together with the Exhibits hereto
and the Joinder annexed hereto, embodies and constitutes the entire
understanding between the parties with respect to the Transactions and all prior
agreements, understandings, representations and statements, oral or written, are
merged into this Agreement. Neither this Agreement nor any provision hereof may
be waived, modified, amended, discharged or terminated except by an instrument
signed by the party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument. No waiver by either party hereto of any failure or
refusal by the other party to comply with its obligations hereunder shall be
deemed a waiver of any other or subsequent failure or refusal to so comply.
.5 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the law of the State in which the Real Property is located
except to the extent its conflict of law principles would direct the application
of the law of a different state or forum.
.6 Captions Not Binding; Exhibits. The captions in this Agreement are
inserted for reference only and in no way define, describe or limit the scope or
intent of this Agreement or of any of the provisions hereof. All references to
"Articles," "Sections," "Subsections" and "Clauses" are to articles, sections,
subsections or clauses of this Agreement except as otherwise stated to the
contrary. All references to specific Exhibits are to exhibits attached hereto
and the same shall be incorporated by reference as if set out herein in full.
The Joinder annexed hereto is part of this Agreement and is fully incorporated
herein.
.7 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
.8 Severability. If any term or provision of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby, and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
.9 Notices. Any notice, request, demand, consent, approval and other
communications under this Agreement shall be in writing, and shall be deemed
duly given or made at the time and on the date when received by facsimile
(provided that the sender of such communication shall orally confirm receipt
thereof by the appropriate parties and send a copy of such communication to the
appropriate parties within one (1) Business Day of such facsimile) or when
personally delivered as shown on a receipt therefor (which shall include
delivery by a nationally recognized overnight delivery service) or three (3)
Business Days after being mailed by prepaid registered or certified mail, return
receipt requested, to the address for each party set forth below. Any party, by
written notice to the other in the manner herein provided, may designate an
address different from that set forth below.
IF TO BUYER
-----------
SL Green 100 Park LLC
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Mr. Marc Holliday
Telephone #: (212) 216-1684
Telecopy #: (212) 216-1785
COPIES TO:
---------
SL Green 100 Park LLC
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Benjamin Feldman, Esq.
Telephone #: (212) 216-1646
Telecopy #: (212) 216-1790
and
Greenberg Traurig
200 Park Avenue
New York, New York 10166
Attention: Robert J. Ivanhoe, Esq.
Telephone #: (212) 801-9333
Telecopy #: (212) 801-6400
IF TO SELLER:
------------
The Prudential Insurance Company of America
Prudential Real Estate Investors
8 Campus Drive, Fourth Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Mr. David N. Bradford
Telephone #: (973) 683-1724
Telecopy #: (973) 683-1794
COPIES TO:
---------
The Prudential Insurance Company of America
Prudential Real Estate Investors
PAMG-RE Law Department
8 Campus Drive, Fourth Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Joan N. Hayden, Esq.
Assistant General Counsel
Telephone #: (973) 683-1772
Telecopy #: (973) 683-1788
and
O'Melveny & Myers LLP
153 East 53rd Street
New York, New York 10022
Attention: Jacqueline A. Weiss, Esq.
Telephone #: (212) 326-2110
Telecopy #: (212) 326-2061
.10 Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
.11 No Recordation. Seller and Buyer each agrees that neither this
Agreement nor any memorandum or notice hereof shall be recorded and Buyer agrees
(a) not to file any notice of pendency or other instrument (other than a
judgment) against the Property or any portion thereof in connection herewith and
(b) to indemnify Seller against all costs, expenses and damages, including
reasonable attorneys' fees and disbursements, incurred by Seller by reason of
the filing by Buyer of such notice of pendency or other instrument.
.12 Additional Agreements; Further Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto shall execute and deliver
such documents as the other party shall reasonably request in order to
consummate and make effective the Transactions; provided, however, that the
execution and delivery of such documents by such party shall not result in any
additional liability or cost to such party.
.13 Construction. (a) The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendment hereof or Exhibit hereto.
(b) The definitions used in this Agreement shall apply equally to both
the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter form. The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation," except where the context
otherwise requires. The terms "herein," "hereof" and "hereunder" refer to this
Agreement in its entirety unless the context otherwise requires. References to
contracts, agreements, leases and other contractual instruments shall be deemed
to include all subsequent amendments, supplements and other modifications
permitted by the terms of this Agreement. References to specific statutes
include (i) successor statutes of similar purpose and import, and (ii) all
rules, regulations and orders promulgated thereunder. The term "provisions,"
when used with respect hereto or to any other document or instrument shall be
construed as if preceded by the phrase "terms, covenants, agreements,
requirements, conditions and/or."
.14 ERISA. (a) To satisfy compliance with ERISA, Buyer represents and
warrants to Seller that:
(i) Neither Buyer nor any of its affiliates (within the meaning of
Part V(c) of Prohibited Transaction Exemption 84-14 granted by the U.S.
Department of Labor ("PTE 84-14")) has, or during the immediately preceding
calendar year has exercised, the authority to appoint or terminate Seller as
investment manager of any assets of the employee benefit plans whose assets are
held by Seller or to negotiate the terms of any management agreement with Seller
on behalf of any such plan;
(ii) The Transactions are not specifically excluded by Part I(b) of
PTE 84-14; and
(iii) Buyer is not a related party of Seller (as defined in Part V(h)
of PTE 84-14).
(b) Buyer hereby agrees to execute or deliver such documents or
provide such information as Seller may require in connection with the
Transactions or to otherwise assure Seller that: (i) the Transactions are not a
prohibited transaction under ERISA, (ii) that the Transactions are otherwise in
full compliance with ERISA and (iii) that Seller is not in violation of ERISA by
compliance with this Agreement and by closing the Transactions. Seller shall not
be obligated to consummate the Transactions unless and until the Transactions
comply with ERISA and Seller is satisfied that the Transactions comply in all
respects with ERISA. The obligations of Buyer under this Section shall survive
the Closing and shall not be merged therein.
.15 Business Day. As used herein, the term "BUSINESS DAY" shall mean any
day other than a Saturday, Sunday, or any federal or state holiday. If any
period expires on a day that is not a Business Day or any event or condition is
required by the terms of this Agreement to occur or be fulfilled on a day which
is not a Business Day, such period shall expire or such event or condition shall
occur or be fulfilled, as the case may be, on the next succeeding Business Day.
.16 Seller's Maximum Aggregate Liability. Notwithstanding any provision to
the contrary contained in this Agreement or any documents executed or delivered
by Seller pursuant hereto or in connection herewith, the maximum aggregate
liability of Seller, and the maximum aggregate amount that may be awarded to and
collected by Buyer or the Company, in connection with the Transactions and under
this Agreement (including in connection with the breach of any representations
and warranties contained herein) and any and all agreements, documents or
instruments executed or delivered pursuant hereto or in connection herewith, for
which a claim is timely made by Buyer shall not exceed FOUR MILLION AND 00/100
DOLLARS ($4,000,000.00); provided that such limitation on liability shall not
apply with respect to (a) Seller's obligations as a member of the Company
pursuant to the Operating Agreement, (b) liability resulting from non-recourse
carve-out provisions that may be agreed to by the Company in the documents
relating to the Mortgage Loan, (c) Seller's obligations with respect to transfer
taxes as described in Subsection 5.4(c), or (d) the Limited Guaranty Agreement
described in Subsection 9.2.7.
.17 JURISDICTION. WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDINGS RELATING
TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, THE PROPERTY OR THE
RELATIONSHIP OF BUYER AND SELLER HEREUNDER (HEREIN COLLECTIVELY CALLED THE
"PROCEEDINGS"), EACH PARTY HERETO IRREVOCABLY (A) SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE COUNTY OF NEW YORK, STATE OF NEW YORK AND THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND (B)
WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY
PROCEEDINGS BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT SUCH PROCEEDINGS
HAVE BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO
OBJECT, WITH RESPECT TO SUCH PROCEEDINGS, THAT SUCH COURT DOES NOT HAVE
JURISDICTION OVER SUCH PARTY.
.18 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN
ANY PROCEEDINGS BROUGHT BY THE OTHER PARTY IN CONNECTION WITH ANY MATTER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE TRANSACTIONS
CONTEMPLATED HEREBY, THE PROPERTY OR THE RELATIONSHIP OF BUYER AND SELLER
HEREUNDER.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
duly executed on its behalf by its respective duly authorized representative as
of the day and year first above written.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: ________________________________
Name: David N. Bradford
Title: Vice President
SL GREEN 100 PARK LLC,
a New York limited liability company
By: SL Green Operating Partnership, L.P.
a Delaware limited partnership
its Member
By: SL Green Realty Corp..
a Maryland corporation,
its General Partner
By: _______________________
Name:
Title:
<PAGE>
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
AGREEMENT OF ESCROW AGENT
The undersigned has executed this Agreement by its duly authorized
representative solely to confirm its agreement to hold the Escrow Deposits in
escrow in accordance with the provisions hereof and comply with the provisions
of Article 12 and Section 14.2.
O'MELVENY & MYERS LLP
By: ____________________________________
Name: Jacqueline A. Weiss
Title: Member
Date: November ___, 1999
<PAGE>
JOINDER
_______
The undersigned is the sole member of Buyer, and as such derives a direct
benefit from the execution and delivery of the Purchase and Sale Agreement of
which this Joinder forms a part. The undersigned acknowledges that Seller would
not have entered into the Purchase and Sale Agreement but for this Joinder. The
undersigned hereby joins in this Agreement solely for purposes of guarantying
the obligations of Buyer under Sections 5.4, 9.1, 9.2.3, and 9.3 to the extent
that the same arise or accrue prior to the Closing. At such time as the Closing
occurs, the undersigned shall have no further obligations or liability under the
Agreement and this Joinder shall be of no further force or effect.
The undersigned is duly organized (or formed), validly existing and in good
standing under the laws of its State of organization and the State in which the
Property is located, is authorized to consummate the Transactions and fulfill
all of its obligations hereunder, and has all necessary power to execute and
deliver this Joinder and all documents contemplated hereunder to be executed or
delivered by it, and to perform all of its obligations hereunder and thereunder.
This Joinder has been duly authorized by all requisite corporate action on the
part of the undersigned and is the valid and legally binding obligation of the
undersigned, enforceable in accordance with their respective terms. Neither the
execution and delivery of this Joinder, nor the performance of the obligations
of the undersigned hereunder, will result in the violation of any applicable Law
or any provision of the articles of incorporation and by-laws of the undersigned
or will conflict with any order or decree of any court or governmental
instrumentality of any nature by which the undersigned is bound.
IN WITNESS WHEREOF, the undersigned has executed this Joinder by its authorized
officer as of this ____ day of November, 1999.
SL GREEN REALTY CORP.
By: ____________________________________
Name: Marc Holliday
Title: Chief Investment Officer
<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
A NEW JERSEY CORPORATION
AND
SL GREEN 100 PARK LLC,
A NEW YORK LIMITED LIABILITY COMPANY
LOCATION: 100 PARK AVENUE, NEW YORK, NEW YORK
DATE: AS OF NOVEMBER 19, 1999
<PAGE>
<TABLE>
TABLE OF CONTENTS
PAGE
<CAPTION>
<S> <C> <C>
ARTICLE 1 SALE OF PROPERTY; SALE OF INTERESTS............................................................1
1.1 Real Property..................................................................................1
1.2 Personal Property..............................................................................1
1.3 Other Property Rights..........................................................................2
ARTICLE 2 PURCHASE PRICE AND ASSIGNMENT OF EXISTING MORTGAGE.............................................2
2.1 Purchase Price.................................................................................2
2.2 Deposit Money..................................................................................2
2.3 Closing Payments and Deliveries................................................................2
2.4 [Intentionally Omitted]........................................................................3
2.5 Assignment of Existing Mortgage Loan; New Mortgage Loan........................................3
2.6 Mortgage Loan Contingency......................................................................4
ARTICLE 3 TITLE MATTERS..................................................................................4
3.1 Title to Real Property.........................................................................4
3.2 Title Defects..................................................................................5
3.2.1 Definition of Permitted Exceptions....................................................5
3.2.2 Certain Exceptions to Title...........................................................5
3.2.3 Discharge of Title Objections.........................................................6
3.3 Title Insurance................................................................................6
ARTICLE 4 BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY................................................7
4.1 Buyer's Inspections and Due Diligence..........................................................7
4.2 Buyer's Acknowledgement of Prior Due Diligence.................................................7
4.3 Buyer's and Company's Certificate..............................................................7
ARTICLE 5 ADJUSTMENTS AND PRORATIONS.....................................................................7
5.1 Lease Rentals and Expenses.....................................................................7
5.1.1 Definition of "Rent"..................................................................7
5.1.2 Rents.................................................................................8
5.1.3 Reimbursable Lease Expenses...........................................................8
5.2 Real Estate Taxes..............................................................................8
5.3 Other Property Operating Expenses..............................................................9
5.4 Closing Costs.................................................................................10
5.5 Apportionment.................................................................................11
5.6 Delayed Adjustment; Delivery of Operating and Other Financial Statements......................11
ARTICLE 6 CLOSING.......................................................................................11
6.1 Closing Date..................................................................................11
6.2 Title Transfer and Payment of Purchase Price..................................................12
6.3 Seller's Closing Deliveries to the Company....................................................12
6.4 Seller's Deliveries to Buyer..................................................................14
6.5 Company's Closing Deliveries..................................................................15
6.6 Buyer's Closing Deliveries....................................................................16
ARTICLE 7 CONDITIONS TO CLOSING.........................................................................17
7.1 Seller's Obligations..........................................................................17
7.2 Buyer's Obligations...........................................................................17
7.3 Waiver of Failure of Conditions Precedent.....................................................17
7.4 Approvals not a Condition to Buyer's Performance..............................................18
ARTICLE 8 REPRESENTATIONS AND WARRANTIES................................................................18
8.1 Buyer's Representations.......................................................................18
8.1.1 Buyer's Authorization................................................................18
8.1.2 Buyer's Financial Condition..........................................................18
8.2 Seller's Representations......................................................................18
8.2.1 Seller's Authorization...............................................................18
8.2.2 Seller's Other Representations.......................................................19
8.2.3 No Other Agreements..................................................................20
8.3 General Provisions............................................................................20
8.3.1 Representation as to Leases..........................................................20
8.3.2 Definition of "Seller's Knowledge"...................................................21
8.3.3 Seller's Representations Deemed Modified.............................................21
8.3.4 Notice of Breach; Seller's Right to Cure.............................................21
8.3.5 Survival; Limitation on Seller's Liability...........................................22
ARTICLE 9 COVENANTS.....................................................................................22
9.1 Buyer's Covenants.............................................................................22
9.1.1 Confidentiality......................................................................22
9.1.2 Buyer's Indemnity; Delivery of Reports...............................................23
9.1.3 Limit on Government Contacts.........................................................23
9.1.4 Managing Agent; Collective Bargaining Agreement Obligations..........................23
9.1.5 Contacting Labor Unions..............................................................24
9.1.6 Survival.............................................................................24
9.2 Seller's Covenants............................................................................24
9.2.1 Service Contracts....................................................................24
9.2.2 Maintenance of Property..............................................................25
9.2.3 Access to Property...................................................................25
9.2.4 Confidentiality......................................................................25
9.2.5 Property Manager's Closing Certificate; Property Manager Termination.................26
9.2.6 Facade Remediation...................................................................26
9.2.7 Limited Guaranty Agreement Of Rent Payments..........................................27
9.3 Mutual Covenants..............................................................................27
9.3.1 Publicity............................................................................27
9.3.2 Broker...............................................................................28
9.3.3 Tax and Accounting Information.......................................................28
9.3.4 Tax Protests; Tax Refunds and Credits................................................28
9.3.5 Survival.............................................................................29
ARTICLE 10 FAILURE OF CONDITIONS.........................................................................29
10.1 To Seller's Obligations.......................................................................29
10.2 To Buyer's Obligations........................................................................29
ARTICLE 11 CONDEMNATION/CASUALTY.........................................................................30
11.1 Condemnation..................................................................................30
11.1.1 Right to Terminate...................................................................30
11.1.2 Assignment of Proceeds...............................................................30
11.2 Destruction or Damage.........................................................................30
11.3 Insurance.....................................................................................31
11.4 Effect of Termination.........................................................................31
11.5 Waiver........................................................................................31
ARTICLE 12 ESCROW........................................................................................31
12.1 Escrow Deposits...............................................................................31
12.2 Indemnity.....................................................................................32
12.3 Income Tax....................................................................................32
12.4 Letter of Credit..............................................................................32
12.5 Confirmation of Escrow........................................................................33
ARTICLE 13 LEASE EXPENSES................................................................................33
13.1 Certain Definitions...........................................................................33
13.2 Future Agreements and Modifications...........................................................34
13.3 Lease and Contract Expenses...................................................................34
13.4 Lease Enforcement.............................................................................34
ARTICLE 14 MISCELLANEOUS.................................................................................35
14.1 Assignment....................................................................................35
14.2 Designation Agreement.........................................................................35
14.3 Survival/Merger...............................................................................35
14.4 Integration; Waiver...........................................................................35
14.5 Governing Law.................................................................................36
14.6 Captions Not Binding; Exhibits................................................................36
14.7 Binding Effect................................................................................36
14.8 Severability..................................................................................36
14.9 Notices.......................................................................................36
14.10 Counterparts..................................................................................38
14.11 No Recordation................................................................................38
14.12 Additional Agreements; Further Assurances.....................................................38
14.13 Construction..................................................................................38
14.14 ERISA.........................................................................................38
14.15 Business Day..................................................................................39
14.16 Seller's Maximum Aggregate Liability..........................................................39
14.17 JURISDICTION..................................................................................39
14.18 WAIVER OF JURY TRIAL..........................................................................40
</TABLE>
<PAGE>
EXHIBITS
--------
Exhibit A Legal Description
Exhibit B List of Contracts
Exhibit C Form of the Operating Agreement
Exhibit D Title Report
[Exhibit E Seller's Environmental Reports]
Exhibit F Form of As-Is Certificate And Agreement
Exhibit G Form of Deed
Exhibit H Form of Bill of Sale
Exhibit I Form of Assignment of Leases
Exhibit J Form of Assignment of Contracts
Exhibit K Form of Notice to Tenants
Exhibit L Form of FIRPTA Affidavit
Exhibit M Form of Assignment of Note and Mortgage
Exhibit N-1 Form of Tenant Estoppel Certificate
Exhibit N-2 Form of Seller's Representation Letter
Exhibit O Assignment and Assumption of Interests
Exhibit P Form of ERISA Representation
Exhibit Q Litigation Notices, Contract Defaults, Governmental
Violations And Lease Defaults
Exhibit R List of Contracts Binding on the Company After Closing
Exhibit S List of Tenants and Tenant's Leases
Exhibit T List of Outstanding Tenant Improvements
Exhibit U List of Outstanding Leasing Commissions
Exhibit V List of Actions Relating to the Property's Assessed Valuation
Exhibit W Form of Management Agreement
Exhibit X List of Employees and Collective Bargaining Agreements
Exhibit Y [Intentionally Omitted]
Exhibit Z Form of Limited Guaranty Agreement
<PAGE>
TABLE OF DEFINITIONS
--------------------
Term Article or Section Reference
- ---- ----------------------------
AAA 9.2.6(b)
Agent 14.2
Approved Lender 2.5(b)
Assignment of Contracts 6.3(e)
Assignment of Leases 6.3(d)
Assignment of Note and Mortgage 6.3(k)
Bill of Sale 6.3(c)
Broker 5.4(c)
Business Day 14.15
Buyer's Representatives 8.3.3
Clean Estoppel 6.3(m)
Closing Date 6.1
Closing 2.3
Commitment Date 2.6
Company 1
Contract Date 2.2(a)
Contract Period 9.2.3
Contracts 1.3
Deed 6.3(a)
Deposit 2.2(a)
Designated Employee 8.3.2
Documents 4.1
Due Diligence 4.1
Election Notice 11.2
ERISA 6.6(d)
Escrow Agent 2.2(a)
Escrow Deposits 12.1
Estoppel Form 6.3(m)
Excess Mortgage Loan Proceeds 2.5(d)
Excess Mortgage Recording Tax 5.4(a)
Exclusivity Period 3.2.1
Existing Lender 2.5(a)
Existing Mortgage 2.5(a)
Existing Mortgage Loan 4.2(b)
Existing Note 2.5(a)
Federal Bankruptcy Code 7.1(b)
Interests 1
Law 7.1(b)
Leases 1.3
Lender 2.5(b)
Letter of Credit 2.2(a)
Limited Guaranty Agreement 9.2.7
Major Tenants 6.3(m)
Management Agreement 9.1.4
Manager 9.1.4
Manager's Closing Certificate 9.2.5
Mortgage Assignment Documents 4.2(b)
Mortgage Loan 2.5(b)
Mortgage Loan Commitment 2.6
New Leases 13.1
Operating Agreement 1
Other Liens 3.2.2
Other Property Rights 1.3
Other Tenants 6.3(m)
Owner's Title Policy 3.3
Permitted Exceptions 3.2.1
Personal Property 1.2
Post-Closing Adjustment Period 5.6
Pre-Contract Leases 13.1
Proceedings 14.17
Property Documents 6.3(l)
Property 1
PTE 84-14 14.14(a)
Purchase Price 2.1(b)
Real Property 1.1
Realization Costs 11.2
Reimbursable Lease Expenses 13.1
Release 9.3.1
Rent 5.1.1
Reporting Person 14.2(a)
Reporting Requirements 14.2
Required Estoppel Language 6.3(m)
Section 255 Affidavit 6.3(o)
Section 275 Affidavit 6.3(o)
Seller Parties 9.1.2
Shared Closing Costs 5.4(a)
Shared Mortgage Loan Expenses 2.5(c)
Significant Portion 11.1.1
SLG 8.1.1
SNDAs 6.3(m)
Survey 3.1
Tax and Accounting Information 9.3.3
Title Company 3.1
Title Documents 3.1
Title Objections 3.2.2
Title Report 3.1
Transactions 1
<PAGE>
TABLE OF CONTENTS
PAGE
1
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Table of Contents/Authorities.
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
ALL that certain plot or parcel of land, situate, lying and being in the Borough
of Manhattan, City, County and State of New York, bounded and described as
follows:
BEGINNING at the corner formed by the intersection of the northerly side of East
40th Street with the westerly side of Park Avenue;
THENCE westerly along the northerly side of East 40th Street, 230 feet;
THENCE northerly and parallel with the westerly side of Park Avenue, 98 feet 9
inches to the centre line of the block;
THENCE easterly along said centre line of the block and parallel with the
northerly side of East 40th Street, 83 feet 4 inches;
THENCE northerly and again parallel with the westerly side of Park Avenue and
part of the way through a party wall, 98 feet 9 inches to the southerly side of
East 41st Street;
THENCE easterly along said southerly side of East 41st Street, 146 feet 8 inches
to the westerly side of Park Avenue; and
THENCE southerly along the westerly side of Park Avenue, 197 feet 6 inches to
the point or place of BEGINNING.
<PAGE>
EXHIBIT B
LIST OF CONTRACTS
-----------------
All contracts are terminable upon the sale of the Property, but require 30 day's
notice to terminate except for the contract with Pritchard Industries. The
contract with Pritchard will be terminated pursuant to the terms of the
Agreement.
<TABLE>
<CAPTION>
<S> <C>
CONTRACTOR Gemini/Central Elevator Company
TYPE OF SERVICE Elevator Maintenance
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $17,508.44
CONTACT Sal Sena
PHONE NUMBER 212-987-7990
CONTRACTOR Parker Interior Plantscape
TYPE OF SERVICE Interior Landscaping
TERM Two Years
EXPIRATION DATE May 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $1,006.70
CONTACT Rod Henson
PHONE NUMBER 212-541-8144
CONTRACTOR Pritchard Industries
TYPE OF SERVICE Cleaning/Lighting/Supplies/Security
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT Varies with Occupancy ($119,466=100%)
CONTACT Bob Sokolowski
PHONE NUMBER 212-382-2295
CONTRACTOR Remco Maintenance Corporation
TYPE OF SERVICE Metal Maintenance
TERM One Year
EXPIRATION DATE March 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $4,709.96
CONTACT James DuBon
PHONE NUMBER 212-695-1033
CONTRACTOR AFA Protective Systems Inc.
TYPE OF SERVICE Fire Alarm Central Hook Up
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $150.47
CONTACT Richard Behan
PHONE NUMBER 212-279-5000
CONTRACTOR Broadway Maintenance
TYPE OF SERVICE Lighting Maintenance for Neon Lights
TERM Four Years
EXPIRATION DATE June 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $178.61
CONTACT Al Higger
PHONE NUMBER 718-670-7195
CONTRACTOR Crocker Fire Drill Corporation
TYPE OF SERVICE Local Law 5/Fire Drills
TERM Three Years
EXPIRATION DATE July 31, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $335.57
CONTACT Stanley Janovici
PHONE NUMBER 516-277-7602
CONTRACTOR Touchcom
TYPE OF SERVICE Lobby Directory
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $338.28
CONTACT Julie Ahlquist
PHONE NUMBER 781-273-3495 (fax 781-272-4098)
CONTRACTOR Comtran Associates
TYPE OF SERVICE Portable Radio Repair/Maintenance
TERM Three Years
EXPIRATION DATE June 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $162.38/8-1(189.44) 11-1(230.03)
CONTACT Allen Rosenbluth
PHONE NUMBER 718-531-7676
CONTRACTOR Unity Program and Metering
TYPE OF SERVICE Electric Meter Readings/Audit
TERM Monthly
EXPIRATION DATE March 31, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $653.50 for 51 meters; $8.50 ea. additional meter
CONTACT Kathleen Lorio
PHONE NUMBER 212-260-4800
CONTRACTOR Utility Program and Metering
TYPE OF SERVICE Water Meter Readings/Audits
TERM Monthly
EXPIRATION DATE March 31, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $152.00 (17 meters current)
$100.00 for 5 meters; $6.50 ea. additional meter
CONTACT Kathleen Lorio
PHONE NUMBER 212-260-4800
CONTRACTOR Waldorf Carting Corporation
TYPE OF SERVICE Rubbish Removal
TERM Two Years
EXPIRATION DATE April 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $1,163.69
CONTACT Paul Connolly
PHONE NUMBER 718-585-2390
CONTRACTOR Walker Thomas Associates
TYPE OF SERVICE Fire Life Safety
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Quarterly
PAYMENT AMOUNT $9,289.20
CONTACT Walter Bougades
PHONE NUMBER 718-937-3275
CONTRACTOR W.H. Christian & Sons, Inc.
TYPE OF SERVICE Uniform Rental/Cleaning(Engineers)
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT Varies (approximately 175.00/month)
CONTACT Thomas Christian
PHONE NUMBER 718-389-7000
CONTRACTOR Atlantic Business Products/Greentree Vendor Svc.
TYPE OF SERVICE Copy Machine
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $284.24
CONTACT Bob Cohen
PHONE NUMBER 718-994-9199
CONTRACTOR North Eastern Chemicals
TYPE OF SERVICE Chemical Contract
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $668.34
CONTACT Jerry Berkley
PHONE NUMBER 201-342-8774
CONTRACTOR Recall Paging
TYPE OF SERVICE Paging Service
TERM Three Years
EXPIRATION DATE June 30, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $30.31
CONTACT Donna Rubano
PHONE NUMBER 732-706-3586
CONTRACTOR Bell Atlantic Mobile
TYPE OF SERVICE Cellular Phone
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $36.92 (basic service)
CONTACT
PHONE NUMBER 800-227-1069
</TABLE>
<PAGE>
EXHIBIT C
FORM OF OPERATING AGREEMENT
<PAGE>
EXHIBIT D
TITLE REPORT
<PAGE>
EXHIBIT E
SELLER'S ENVIRONMENTAL REPORTS
The following reports have been made available to Buyer:
BOOKS DESCRIPTION ORIGINATED BY
- ----- ----------- -------------
Book #1 Original Building Survey ATC Laboratories, Inc.
Book #2 Mechanical Rooms.. ATC Laboratories, Inc.
Book #3 Basement Areas (analysis) ATC Laboratories, Inc.
3A Basement Mezzanine ATC Laboratories, Inc.
3B Basement 41st and Park ATC Laboratories, Inc.
3C Various Storage Rooms ATC Laboratories, Inc.
Book #4 Main Lobby (Rear & Elevator Banks) ATC Laboratories, Inc.
4A Corner 41st and Park ATC Laboratories, Inc.
4B Retail 41st (Deli) ATC Laboratories, Inc.
4C Additional Lobby Information ATC Laboratories, Inc.
Book #5 2nd Floor......... Hygientic Environmental
Book #6 3rd Floor......... Hygientic Environmental
Book #7 4th Floor......... ATC Laboratories, Inc.
Book #8 6th and 7th Floors ATC Laboratories, Inc.
Book #9 8th Floor......... ATC Laboratories, Inc.
Book #10 9th Floor......... ATC Laboratories, Inc.
Book #11 10th Floor........ ATC Laboratories, Inc.
Book #12 11th Floor (Part). ATC Laboratories, Inc.
Book #13 12th Floor........ ATC Laboratories, Inc.
Book #14 13th Floor........ ATC Laboratories, Inc.
Book #15 15th Floor........ Hygientic Environmental
Book #16 16th Floor........ ATC Laboratories, Inc.
Book #17 20th Floor........ Hygientic Environmental
Book #18 26th Floor........ ATC Laboratories, Inc.
Book #19 27th Floor........ Hygientic Environmental
Book #20 28th and 29th Floors Hygientic Environmental
Book #21 34th Floor........ ATC Laboratories, Inc.
Book #22 35th Floor........ ATC Laboratories, Inc.
Book #23 36th Floor (Part). ATC Laboratories, Inc.
Book #24 Cooling Tower Piping ATC Laboratories, Inc.
<PAGE>
EXHIBIT F
FORM OF AS-IS CERTIFICATE AND AGREEMENT
THIS CERTIFICATE AND AGREEMENT ("AGREEMENT"), is made as of the ___ day of ,
2000 by SL GREEN 100 PARK LLC, a New York limited liability company ("BUYER"),
and , a Delaware limited liability company (the "COMPANY") to and for the
benefit of THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
("PRUDENTIAL") and , a wholly-owned subsidiary of Prudential (" "; collectively
with Prudential, "SELLER").
W I T N E S S E T H:
WHEREAS, Prudential, as seller, and Buyer, as buyer, are parties to a
Purchase and Sale Agreement (the "SALE AGREEMENT") dated as of November 19,
1999, which provides for, among other things, the sale of a 49.9% ownership
interest (the "INTERESTS") in the Company, which Company shall, immediately
prior to the transactions contemplated in the Sale Agreement, own and control
the 100% fee interest in certain real property, personal property and related
property rights (the "PROPERTY") located in County of New York, State of New
York, as more particularly described on EXHIBIT A attached hereto and
incorporated herein by this reference. --------- All capitalized terms used
herein without definition shall have the respective meanings ascribed to such
terms in the Sale Agreement; and
WHEREAS, the Sale Agreement requires, INTER ALIA, that, as a condition
precedent to Seller's obligations under the Sale Agreement, Buyer and the
Company shall each execute and deliver this Agreement to Seller at Closing,
NOW, THEREFORE, in consideration of TEN AND NO/100 DOLLARS ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby conclusively acknowledged, Buyer and the Company each hereby certifies
and agrees as follows:
(a) For purposes of this Agreement, the following terms shall have the
following meanings:
"ASSUMED OBLIGATIONS" shall mean any and all losses, costs, claims,
liabilities, expenses, demands or obligations of any kind or nature
whatsoever attributable to the Company or the Property, whether arising or
accruing before, on or after the Closing Date and whether attributable to
events or circumstances which have heretofore or may hereafter occur,
including, without limitation, all losses, costs, claims, liabilities,
expenses and demands with respect to the structural, physical, or
environmental condition of the Property; all losses, costs, claims,
liabilities, expenses and demands relating to the release of or the
presence, discovery or removal of any Hazardous Materials in, at, about or
under the Property, or for, connected with or arising out of any and all
claims or causes of action based upon CERCLA (Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C. ss.ss. 9601 ET
SEQ., as amended by SARA (Superfund Amendment and Reauthorization Act of
1986) and as may be further amended from time to time), the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. ss.ss. 6901 ET SEQ., or
any related claims or causes of action or any other federal, state or
municipal based statutory or regulatory causes of action for environmental
contamination at, in, about or under the Property; and any tort claims made
or brought with respect to the Property or the use or operation thereof.
Notwithstanding the foregoing, however, "Assumed Obligations" shall not
include any responsibility or liability arising out of or in connection
with:
(i) any claims made or causes of action alleging a default or
breach by Prudential that is alleged to have occurred prior
to the Closing Date under any contract or lease entered
into by or on behalf of Prudential and any such claimant
unless Buyer, individually or on behalf of the Company,
knows or is deemed to know (as defined in Subsection (e)
herein) about such claim or cause of action on or before
the Closing Date; or
(ii) any tort claims that arise from any acts or negligent
omissions of Prudential that occurred during the time that
Prudential owned fee title to the Property unless:
(A) Buyer, individually or on behalf of the
Company, has failed or neglected to seek recovery
from any tenants or previous tenants of the
Property who may have liability with respect to
such tort claims; or
(B) Buyer, individually or on behalf of the
Company, knows or is deemed to know (as defined in
Subsection (e) herein) about such claim on or
before the Closing Date.
"HAZARDOUS MATERIAL" shall mean any substance, chemical, waste or
material that is or becomes regulated by any federal, state or local
governmental authority because of its toxicity, infectiousness,
radioactivity, explosiveness, ignitability, corrosiveness or reactivity,
including, without limitation, asbestos or any substance containing more
than 0.1 percent asbestos, the group of compounds known as polychlorinated
biphenyls, flammable explosives, oil, petroleum or any refined petroleum
product.
(b) Buyer's and the Company's Inspections and Due Diligence.
-------------------------------------------------------
(i) Buyer and the Company each acknowledges that, prior to
Buyer's and the Company's execution of this Agreement:
(A) Buyer has conducted (or has waived its
right to conduct), individually and on behalf of
the Company, all such inspections, investigations,
tests, analyses, appraisals and evaluations of the
Property (including those for Hazardous Materials)
as Buyer, individually and on behalf of the
Company, considers necessary or appropriate (all of
such inspections, investigations, tests, analyses,
appraisals and evaluations being herein
collectively called the "INVESTIGATIONS"); and
(B) Seller has made available to Buyer and
otherwise allowed Buyer access to, copies of
certain documents in Seller's possession applicable
to the Property, including, but not limited to, the
Title Report, the Survey, the Title Documents, the
Leases, the Contracts, the Property Documents, the
environmental reports listed on Exhibit E attached
to the Sale Agreement, and such other
non-proprietary, non-privileged reports, documents,
books and records which pertain to the Property
(all of the foregoing documents described in this
Clause (B) being herein collectively called the
"DOCUMENTS") and Buyer has reviewed all documents
which Buyer, individually and on behalf of the
Company, considers necessary or appropriate; and
(C) Buyer, on its own behalf and on behalf
of the Company, has reviewed, examined, evaluated
and verified all Documents and the results of the
Investigations to the extent it deems necessary or
appropriate with the assistance of such experts as
Buyer deemed appropriate. In particular, Buyer and
the Company has each determined to its satisfaction
the assignability of any Documents to be assigned
to the Company. Buyer, individually and on behalf
of the Company, acknowledges and agrees that it (1)
is familiar with the physical condition of the
Property, (2) has completed its due diligence with
respect to the Interests, Property and the
Documents to its satisfaction, and (3) except for
Prudential's representations and warranties set
forth in Section 8.2 of the Sale Agreement, and the
representations and warranties set forth in any
representation letters or equivalent certificates
delivered by Prudential in lieu of any tenant
estoppel certificate and the representations and
warranties of
set forth in that certain Assignment and
Assumption Agreement of even date herewith between
and Buyer (herein collectively called the "SELLER'S
WARRANTIES"), is acquiring the Interests based
exclusively upon its own investigations and
inspections of the Property and the Documents.
(c) Property Sold "As Is".
--------------------
(i) Buyer and the Company each acknowledges and agrees that (A)
except for Seller's Warranties, (1) the Property shall be
sold and the Company shall accept title to the Property,
and (2) the Interests and therefore an interest in the
Property shall be sold, and Buyer shall accept title to the
Interests (and therefor indirectly accept possession of the
Property) on the Closing Date, "AS IS, WHERE IS, WITH ALL
FAULTS", and Buyer and the Company each shall have no right
of setoff or reduction in the Purchase Price; (B) except
for Seller's Warranties, none of Seller, its counsel,
Cushman & Wakefield, Inc. ("BROKER"), its sales agents, nor
any partner, officer, director, employee, agent or attorney
of Seller, its counsel, Broker, or its sales agents, nor
any other party related in any way to any of the foregoing
(all of which parties are herein collectively called the
"SELLER PARTIES") have or shall be deemed to have made any
verbal or written representations, warranties, promises or
guarantees (whether express, implied, statutory or
otherwise) to Buyer with respect to the Company, the
Property, any matter set forth, contained or addressed in
the Documents (including, but not limited to, the accuracy
and completeness thereof) or the results of the
Investigations; (C) Buyer has confirmed independently all
information that it considers material to its purchase of
the Interests or the Transactions; and (D) the Company has
confirmed independently all information that it considers
material to its acquisition of the Property. Buyer
specifically acknowledges that, except for Seller's
Warranties, Buyer is not relying on (and Seller and each of
the other Seller Parties does hereby disclaim and renounce)
any representations or warranties of any kind or nature
whatsoever, whether oral or written, express, implied,
statutory or otherwise, from Seller or any other Seller
Parties, as to: (1) the operation of the Company, the
operation of the Property or the income potential, uses, or
the merchantability, habitability or fitness of any portion
of the Property for a particular purpose; (2) the physical
condition of the Property or the condition or safety of the
Property or any improvements thereon, including, but not
limited to, plumbing, sewer, heating, ventilating and
electrical systems, roofing, air conditioning, foundations,
soils and geology, including Hazardous Materials, lot size,
or suitability of the Property or any improvements thereon
for a particular purpose; (3) the presence or absence,
location or scope of any Hazardous Materials in, at, about
or under the Property; (4) whether the appliances, if any,
plumbing or utilities are in working order; (5) the
habitability or suitability for occupancy of any structure
and the quality of its construction; (6) whether the
improvements on the Property are structurally sound, in
good condition, or in compliance with applicable municipal,
county, state or federal statutes, codes, ordinances, laws,
rules or regulations (herein collectively called "LAWS");
(7) the accuracy of any statements, calculations or
conditions stated or set forth in Seller's books and
records concerning the Company or the Property or set forth
in any of Seller's offering materials with respect to the
Company or the Property; (8) the dimensions of the Property
or the accuracy of any floor plans, square footage, lease
abstracts, sketches, revenue or expense projections related
to the Property; (9) the operating performance, the income
and expenses of the Company or the Property or the economic
status of the Company or the Property; (10) the ability of
any person or entity to obtain any and all necessary
governmental approvals or permits for their intended use
and development of the Property; (11) the leasing status of
the Property or the intentions of any parties with respect
to the negotiation and/or execution of any lease for any
portion of the Property; and (12) Seller's or the Company's
ownership of any portion of the Property. Buyer further
acknowledges and agrees that, except for Seller's
Warranties, Seller is under no duty to make any affirmative
disclosures or inquiry regarding any matter which may or
may not be known to Seller, its officers, directors,
contractors, agents or employees.
(ii) The Company specifically acknowledges that, except for
Seller's Warranties, the Company is not relying on (and
Seller and each of the other Seller Parties does hereby
disclaim and renounce) any representations or warranties of
any kind or nature whatsoever, whether oral or written,
express, implied, statutory or otherwise, from Seller or
any other Seller Parties, as to: (A) the operation of the
Property or the income potential, uses, or the
merchantability, habitability or fitness of any portion of
the Property for a particular purpose; (B) the physical
condition of the Property or the condition or safety of the
Property or any improvements thereon, including, but not
limited to, plumbing, sewer, heating, ventilating and
electrical systems, roofing, air conditioning, foundations,
soils and geology, including Hazardous Materials, lot size,
or suitability of the Property or any improvements thereon
for a particular purpose; (C) the presence or absence,
location or scope of any Hazardous Materials in, at, about
or under the Property; (D) whether the appliances, if any,
plumbing or utilities are in working order; (E) the
habitability or suitability for occupancy of any structure
and the quality of its construction; (F) whether the
improvements on the Property are structurally sound, in
good condition, or in compliance with Laws; (G) the
accuracy of any statements, calculations or conditions
stated or set forth in Seller's books and records
concerning the Property or set forth in any of Seller's
offering materials with respect to the Property; (H) the
dimensions of the Property or the accuracy of any floor
plans, square footage, lease abstracts, sketches, revenue
or expense projections related to the Property; (I) the
operating performance, the income and expenses of the
Property or the economic status of the Property; (J) the
ability of any person or entity to obtain any and all
necessary governmental approvals or permits for their
intended use and development of the Property; (K) the
leasing status of the Property or the intentions of any
parties with respect to the negotiation and/or execution of
any lease for any portion of the Property; and (L) Seller's
ownership of any portion of the Property. The Company
further acknowledges and agrees that, except for Seller's
Warranties, Seller is under no duty to make any affirmative
disclosures or inquiry regarding any matter which may or
may not be known to Seller, its officers, directors,
contractors, agents or employees.
(iii)Any reports, repairs or work required by Buyer (in its
capacity as Buyer and not as a member of the Company) are
the sole responsibility of Buyer, and Buyer agrees that
there is no obligation on the part of Seller (except as
expressly provided to the contrary in Subsection 9.2.6 of
the Sale Agreement with respect to facade work) or the
Company to make any changes, alterations or repairs to the
Property or to cure any violations of Law or to comply with
the requirements of any insurer (except as expressly
provided to the contrary in Subsection 9.2.6 of the Sale
Agreement with respect to facade work). Buyer, on behalf of
the Company as it relates to the Closing and thereafter,
the Company, is solely responsible for obtaining any
certificate of occupancy or any other approval or permit
necessary for the transfer or occupancy of the Property and
for any repairs or alterations necessary to obtain the
same, all at the Company's sole cost and expense.
(iv) Buyer, for Buyer and Buyer's successors and assigns, and
the Company, for itself and its members, hereby release
Seller (in its capacity as Seller only and not as a member
of the Company) and each of the other Seller Parties from,
and waive all claims and liability against Seller (in its
capacity as Seller only and not as a member of the Company)
and each of the other Seller Parties for or attributable
to, the following:
(A) any and all statements or opinions
heretofore or hereafter made, or information
furnished, by the Seller Parties to Buyer,
individually or on behalf of the Company, or its
agents, attorneys or representatives;
(B) any and all losses, costs, claims,
liabilities, expenses, demands or obligations of
any kind or nature whatsoever attributable to the
Property, whether arising or accruing before, on or
after the Closing Date and whether attributable to
events or circumstances which have heretofore or
may hereafter occur, including, without limitation,
all losses, costs, claims, liabilities, expenses
and demands with respect to the structural,
physical, or environmental condition of the
Property; all losses, costs, claims, liabilities,
expenses and demands relating to the release of or
the presence, discovery or removal of any Hazardous
Materials in, at, about or under the Property, or
for, connected with or arising out of any and all
claims or causes of action based upon CERCLA
(Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C.
ss.ss. 9601 ET SEQ., as amended by SARA (Superfund
Amendment and Reauthorization Act of 1986) and as
may be further amended from time to time), the
Resource Conservation and Recovery Act of 1976, 42
U.S.C. ss.ss. 6901 ET SEQ., or any related claims
or causes of action or any other federal, state or
municipal based statutory or regulatory causes of
action for environmental contamination at, in,
about or under the Property; and any tort claims
made or brought with respect to the Property or the
use or operation thereof; and
(C) The release and waiver set forth in this
Subsection (iv) is not intended and shall not be
construed to affect or impair any rights or
remedies that Buyer may have against Seller as a
result of a breach of any of Seller's Warranties.
(v) The Company hereby assumes and takes responsibility and
liability for all Assumed Obligations and Buyer, on its own
behalf (together with its successors and assigns) ratifies
and confirms such assumption by the Company for itself and
its successors and assigns, and Buyer (together with its
successors and assigns), on behalf of the Company, hereby
agrees to indemnify, defend and hold harmless Seller and
each of the other Seller Parties from any losses, costs,
claims, liabilities, expenses or demands with respect
thereto. By executing this Agreement, Buyer (together with
its successors and assigns), on behalf of the Company,
hereby agrees that the Company shall at all times, comply
with all applicable Laws involving Hazardous Materials in,
at, under or about the Property or their removal from the
Property.
(vi) Buyer and the Company acknowledge and agree that the
provisions of this Subsection (c) were a material factor in
Seller's acceptance of the Purchase Price, the transfer of
the Property to the Company and, while Seller has provided
the Documents and cooperated with Buyer and the Company,
Seller is unwilling to transfer the Property to the Company
or to transfer or to cause the transfer of the Interests in
the Company to Buyer unless Seller and the other Seller
Parties are expressly released as set forth in Subsection
(c) and Buyer and the Company each assumes the obligations
specified in, and provides the indemnifications set forth
in, Subsection (c).
(d) Notwithstanding anything to the contrary herein, the
provisions of this Agreement shall survive the Closing and shall not be merged
therein.
(e) For purposes of the Sale Agreement, Buyer, individually and on
behalf of the Company, and the Company shall each be "deemed to know" of the
existence of a fact or circumstance to the extent that such fact or circumstance
is disclosed by this Agreement or in the Sale Agreement, the Documents, any
estoppel certificate executed by any tenant of the Property and delivered to
Buyer, Buyer's Representatives or the Company, or any studies, tests, reports,
or analyses prepared by or for Buyer or any of its employees, agents,
representatives or attorneys (all of the foregoing being herein collectively
called the "BUYER'S REPRESENTATIVES") or otherwise obtained by Buyer, the
Company or Buyer's Representatives discloses such fact or circumstance; and
Buyer and the Company shall each be "deemed to know" that a representation or
warranty was untrue, inaccurate or incorrect to the extent that this Agreement,
the Sale Agreement, the Documents, any estoppel certificate executed by any
tenant of the Property and delivered to Buyer, the Company or any Buyer's
Representatives, or otherwise obtained by Buyer, the Company or Buyer's
Representatives contains information that is inconsistent with such
representation or warranty.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, Buyer and the Company have each caused this
Agreement to be duly executed on its behalf by its duly authorized
representative as of the day and year first above written.
BUYER:
SL GREEN 100 PARK LLC,
a New York limited liability company
By: SL Green Operating Partnership, L.P.,
a Delaware limited partnership
its Member
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By: _____________________________
Name: _______________________
Title:_______________________
COMPANY:
_____________________________,
a Delaware limited liability company
By: SL GREEN 100 PARK LLC,
a New York limited liability company
Title: Managing Member
By: SL Green Operating Partnership, L.P.,
a Delaware limited partnership
its Member
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By: _____________________________
Name: _______________________
Title:_______________________
<PAGE>
EXHIBIT "A" TO AS-IS CERTIFICATE AND AGREEMENT
LEGAL DESCRIPTION
ALL that certain plot or parcel of land, situate, lying and being in the Borough
of Manhattan, City, County and State of New York, bounded and described as
follows:
BEGINNING at the corner formed by the intersection of the northerly side of East
40th Street with the westerly side of Park Avenue;
THENCE westerly along the northerly side of East 40th Street, 230 feet;
THENCE northerly and parallel with the westerly side of Park Avenue, 98 feet 9
inches to the centre line of the block;
THENCE easterly along said centre line of the block and parallel with the
northerly side of East 40th Street, 83 feet 4 inches;
THENCE northerly and again parallel with the westerly side of Park Avenue and
part of the way through a party wall, 98 feet 9 inches to the southerly side of
East 41st Street;
THENCE easterly along said southerly side of East 41st Street, 146 feet 8 inches
to the westerly side of Park Avenue; and
THENCE southerly along the westerly side of Park Avenue, 197 feet 6 inches to
the point or place of BEGINNING.
<PAGE>
EXHIBIT G
FORM OF DEED
------------
THIS INDENTURE, made the ___ day of _________, two thousand
BETWEEN
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation, having an
office at 8 Campus Drive, Parsippany, New Jersey 07054-4493,
party of the first part, and
_________________________________, a Delaware limited liability company, having
its principal place of business c/o SL Green Realty Corp., 420 Lexington Avenue,
New York, New York 10170,
party of the second part,
WITNESSETH, that the party of the first part, in consideration of TEN AND NO/100
DOLLARS ($10.00) and other valuable consideration paid by the party of the
second part, does hereby grant and release unto the party of the second part,
the heirs or successors and assigns of the party of the second part forever,
ALL that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the City, County and
State of New York, bounded and described as set forth in EXHIBIT A;
TOGETHER with all buildings, improvements and fixtures thereon and all rights,
privileges and appurtenances pertaining thereto, including all right, title and
interest, if any, of the party of the first part in and to all rights-of-way,
alleys, easements, strips or gores of land adjacent thereto;
TOGETHER with all right, title and interest, if any, of the party of the first
part in and to any streets and roads abutting the above described premises to
the center lines thereof;
TOGETHER with the appurtenances and all the estate and rights of the party of
the first part in and to said premises;
TO HAVE AND TO HOLD the premises herein granted unto the party of the second
part, the heirs or successors and assigns of the party of the second part
forever.
AND the party of the first part, in compliance with Section 13 of the Lien Law,
covenants that the party of the first part will receive the consideration for
this conveyance and will hold the right to receive such consideration as a trust
fund to be applied first for the purpose of paying the cost of the improvement
and will apply the same first to the payment of the cost of the improvement
before using any part of the total of the same for any other purpose. The word
"party" shall be construed as if it read "parties" whenever the sense of this
indenture so requires.
<PAGE>
IN WITNESS WHEREOF, the party of the first part has caused this deed to be duly
executed on its behalf by its duly authorized representative on the day and year
first above written.
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By:_________________________________
Name: Peter L. Ruggiero
Title: Vice President
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
ON THE ____ DAY OF __________ IN THE YEAR 2000 BEFORE ME, THE UNDERSIGNED, A
NOTARY PUBLIC IN AND FOR SAID STATE, PERSONALLY APPEARED PETER L. RUGGIERO,
PERSONALLY KNOWN TO ME OR PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE TO
BE THE INDIVIDUAL WHOSE NAME IS SUBSCRIBED TO THE WITHIN INSTRUMENT AND
ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME IN HIS CAPACITY, AND THAT BY HIS
SIGNATURE ON THE INSTRUMENT, THE PRUDENTIAL INSURANCE COMPANY OF AMERICA UPON
BEHALF OF WHICH THE INDIVIDUAL ACTED, EXECUTED THE INSTRUMENT.
---------------------------------------------------------------------
(SIGNATURE AND OFFICE OF INDIVIDUAL TAKING ACKNOWLEDGEMENT)
<PAGE>
EXHIBIT "A" TO DEED
LEGAL DESCRIPTION
-----------------
ALL that certain plot or parcel of land, situate, lying and being in the Borough
of Manhattan, City, County and State of New York, bounded and described as
follows:
BEGINNING at the corner formed by the intersection of the northerly side of East
40th Street with the westerly side of Park Avenue;
THENCE westerly along the northerly side of East 40th Street, 230 feet;
THENCE northerly and parallel with the westerly side of Park Avenue, 98 feet 9
inches to the centre line of the block;
THENCE easterly along said centre line of the block and parallel with the
northerly side of East 40th Street, 83 feet 4 inches;
THENCE northerly and again parallel with the westerly side of Park Avenue and
part of the way through a party wall, 98 feet 9 inches to the southerly side of
East 41st Street;
THENCE easterly along said southerly side of East 41st Street, 146 feet 8 inches
to the westerly side of Park Avenue; and
THENCE southerly along the westerly side of Park Avenue, 197 feet 6 inches to
the point or place of BEGINNING.
<PAGE>
EXHIBIT H
FORM OF BILL OF SALE
--------------------
THIS BILL OF SALE ("BILL OF SALE"), is made as of the day of , 2000 by and
between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
("SELLER") and , a Delaware limited liability company (the "COMPANY").
W I T N E S S E T H:
WHEREAS, Seller, as seller, and SL Green 100 Park LLC, as buyer
("BUYER"), are parties to a Purchase and Sale Agreement (the "SALE AGREEMENT")
dated as of November 19, 1999, which provides for, among other things, the sale
of a 49.9% ownership interest (the "INTERESTS") in the Company to Buyer, which
the Company shall, immediately prior to the transactions contemplated in the
Sale Agreement, own and control the 100% fee interest in certain real property
(the "PROPERTY") located in County of New York, State of New York, as more
particularly described on EXHIBIT A attached hereto and incorporated herein by
this reference. All capitalized terms used herein without definition shall have
the respective meanings ascribed to such terms in the Sale Agreement; and
WHEREAS, by deed of even date herewith, Seller conveyed the Real
Property to the Company; and
WHEREAS, in connection with the above described conveyance Seller
desires to sell, transfer and convey to the Company certain items of tangible
personal property as hereinafter described,
NOW, THEREFORE, in consideration of the receipt of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration paid in hand by the
Company to Seller, the receipt and sufficiency of which are hereby conclusively
acknowledged, Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET OVER and
DELIVERED and by these presents does hereby GRANT, SELL, TRANSFER, SET OVER and
DELIVER to the Company, its legal representatives, successors and assigns, all
of its right, title and interest in and to all tangible personal property owned
by Seller (excluding any computer software that either (a) is licensed to
Seller, or (b) Seller deems proprietary or confidential), located on the Real
Property and used in the ownership, operation and maintenance of the Real
Property and all nonconfidential books, records and files (excluding any
internal appraisals, budgets, strategic plans for the Real Property, internal
analyses, marketing information, submissions relating to Seller's obtaining of
corporate authorization, attorney and accountant work product, attorney-client
privileged documents, or other information in the possession or control of
Seller or Seller's property manager that Seller deems reasonably proprietary or
confidential) relating to the Real Property (herein collectively called the
"PERSONAL PROPERTY"), to have and to hold, all and singular, the Personal
Property unto the Company forever.
This Bill of Sale is made without any covenant, warranty or representation by,
or recourse against, Seller as more expressly set forth in the Sale Agreement
and the documents executed or delivered in connection therewith. By acceptance
of this Bill of Sale, the Company specifically acknowledges that, except for
Seller's representations and warranties set forth in Section 8.2 of the Sale
Agreement made to Buyer and/or the Company, and the representations and
warranties set forth in any representation letters delivered by Seller to Buyer
or the Company in accordance with the terms of Subsection 6.3(m) of the Sale
Agreement, neither the Company nor any member thereof is relying on (and Seller,
for itself and for its counsel, Cushman & Wakefield, Inc. ("BROKER"), its sales
agents, each partner, officer, director, employee, agent and attorney of Seller,
its counsel, Broker, and its sales agents, and any other party related in any
way to any of the foregoing (all of which parties are herein collectively called
the "SELLER PARTIES"), does hereby disclaim and renounce) any representations or
warranties of any kind or nature whatsoever, whether oral or written, express,
implied, statutory or otherwise, from Seller or any other Seller Parties,
including, without limitation, any covenant, representation or warranty
regarding or relating to (a) the operation of the Personal Property or uses or
merchantability or fitness of any portion of the Personal Property for a
particular purpose; or (b) the physical condition of the Personal Property or
the condition or safety of the Personal Property or suitability of the Personal
Property for a particular purpose. Seller hereby disclaims and, by its
acceptance of this Bill of Sale the Company hereby waives and releases, any
implied or statutory warranties or guaranties of fitness, merchantability or any
other statutory or implied warranty or guaranty of any kind or nature regarding
or relating to the Personal Property. The Company acknowledges and agrees that
the provisions of this paragraph were a material factor in Seller's agreement to
convey the Personal Property to the Company and Seller would not have conveyed
the Personal Property to the Company unless Seller and the other Seller Parties
are expressly released and the Company waives the rights as set forth in this
paragraph.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
This Bill of Sale may be executed in counterparts, each of which shall
be an original and all of which counterparts taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, each of the undersigned has caused this Bill of
Sale to be duly executed on its behalf by its respective duly authorized
representative as of the day and year first above written.
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By: __________________________________
Name: Peter L. Ruggiero
Title: Vice President
ACCEPTED:
______________________________________,
a Delaware limited liability company
By: SL GREEN 100 PARK LLC
a New York limited liability company
Title: Managing Member
By: SL Green Operating Partnership, L.P.,
a Delaware limited partnership
its Member
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By: ________________________
Name:___________________
Title:__________________
<PAGE>
EXHIBIT "A" TO BILL OF SALE
LEGAL DESCRIPTION
-----------------
ALL that certain plot or parcel of land, situate, lying and being in the Borough
of Manhattan, City, County and State of New York, bounded and described as
follows:
BEGINNING at the corner formed by the intersection of the northerly side of East
40th Street with the westerly side of Park Avenue;
THENCE westerly along the northerly side of East 40th Street, 230 feet;
THENCE northerly and parallel with the westerly side of Park Avenue, 98 feet 9
inches to the centre line of the block;
THENCE easterly along said centre line of the block and parallel with the
northerly side of East 40th Street, 83 feet 4 inches;
THENCE northerly and again parallel with the westerly side of Park Avenue and
part of the way through a party wall, 98 feet 9 inches to the southerly side of
East 41st Street;
THENCE easterly along said southerly side of East 41st Street, 146 feet 8 inches
to the westerly side of Park Avenue; and
THENCE southerly along the westerly side of Park Avenue, 197 feet 6 inches to
the point or place of BEGINNING.
<PAGE>
EXHIBIT I
FORM OF ASSIGNMENT OF LEASES
----------------------------
THIS ASSIGNMENT OF LEASES ("ASSIGNMENT"), is made as of the day of , 2000 by and
between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
("ASSIGNOR") and , a Delaware limited liability company ("ASSIGNEE").
W I T N E S S E T H:
WHEREAS, Assignor, as seller, and SL Green 100 Park LLC, as buyer
("BUYER"), are parties to a Purchase and Sale Agreement (the "SALE AGREEMENT")
dated as of November 19, 1999, which provides for, among other things, the sale
of a 49.9% ownership interest (the "INTERESTS") in Assignee to Buyer, which
Assignee shall, immediately prior to the transactions contemplated in the Sale
Agreement, own and control the 100% fee interest in certain real property,
personal property and related property rights (the "PROPERTY") located in County
of New York, State of New York, as more particularly described on EXHIBIT A
attached hereto and incorporated herein by this reference. All capitalized terms
used herein without definition shall have the respective meanings ascribed to
such terms in the Sale Agreement; and
WHEREAS, the Sale Agreement provides, INTER ALIA, that Assignor shall
assign to Assignee certain leases and Assignee shall assume all of the
obligations of Assignor under such leases from and after the date of such
assignment, and that Assignor and Assignee shall enter into this Assignment,
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. ASSIGNMENT. Assignor hereby assigns, sets over and transfers to Assignee all
of its right, title and interest in, to and under the space leases (herein
collectively called the "LEASES") with the tenants of the Property. Subject to
any limitations expressly set forth in Subsection c(iv) of that certain As-Is
Certificate and Agreement, bearing even date herewith, executed by Buyer and
Assignee to and for the benefit of Assignor (the "AS-IS CERTIFICATE"), Assignee
hereby assumes all liabilities and obligations of Assignor under the Leases.
Subject to any limitations expressly set forth in Subection c(v) of the As-Is
Certificate, Assignee hereby agrees to indemnify, defend and hold harmless
Assignor and any partner, officer, director, employee, agent or attorney of
Assignor, its counsel, or its advisors, and any other party related in any way
to any of the foregoing from all of the liabilities and obligations of Assignor
under the Leases whether arising or accruing before or after the date hereof.
2. MISCELLANEOUS. This Assignment and the obligations of the parties hereunder
shall survive the closing of the transaction referred to in the Sale Agreement
and shall not be merged therein, shall be binding upon and inure to the benefit
of the parties hereto, their respective legal representatives, successors and
assigns, shall be governed by and construed in accordance with the laws of the
State of New York, applicable to agreements made and to be wholly performed
within said State and may not be modified or amended in any manner other than by
a written agreement signed by the party to be charged therewith.
3. COUNTERPARTS. This Assignment may be executed in counterparts, each of which
shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, each of the undersigned has caused this Assignment
to be duly executed on its behalf by its respective duly authorized
representative as of the day and year first above written.
ASSIGNOR:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation
By: _________________________________
Name: Peter L. Ruggiero
Title: Vice President
ASSIGNEE:
______________________________________,
a Delaware limited liability company
By: SL GREEN 100 PARK LLC,
a New York limited liability company
Title: Managing Member
By: SL Green Operating Partnership, L.P.,
a Delaware limited partnership
its Member
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By: _____________________________
Name: _______________________
Title:_______________________
<PAGE>
EXHIBIT "A" TO ASSIGNMENT OF LEASES
LEGAL DESCRIPTION
_________________
ALL that certain plot or parcel of land, situate, lying and being in the Borough
of Manhattan, City, County and State of New York, bounded and described as
follows:
BEGINNING at the corner formed by the intersection of the northerly side of East
40th Street with the westerly side of Park Avenue;
THENCE westerly along the northerly side of East 40th Street, 230 feet;
THENCE northerly and parallel with the westerly side of Park Avenue, 98 feet 9
inches to the centre line of the block;
THENCE easterly along said centre line of the block and parallel with the
northerly side of East 40th Street, 83 feet 4 inches;
THENCE northerly and again parallel with the westerly side of Park Avenue and
part of the way through a party wall, 98 feet 9 inches to the southerly side of
East 41st Street;
THENCE easterly along said southerly side of East 41st Street, 146 feet 8 inches
to the westerly side of Park Avenue; and
THENCE southerly along the westerly side of Park Avenue, 197 feet 6 inches to
the point or place of BEGINNING.
<PAGE>
EXHIBIT J
FORM OF ASSIGNMENT OF CONTRACTS
-------------------------------
THIS ASSIGNMENT OF CONTRACTS ("ASSIGNMENT"), is made as of the day of , 2000 by
and between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey
corporation ("ASSIGNOR") and ________________________, a Delaware limited
liability company ("ASSIGNEE").
W I T N E S S E T H:
WHEREAS, Assignor, as seller, and SL Green 100 Park LLC, as buyer
("BUYER"), are parties to a Purchase and Sale Agreement (the "SALE AGREEMENT")
dated as of November 19, 1999, which provides for, among other things, the sale
of a 49.9% ownership interest (the "INTERESTS") in Assignee to Buyer, which
Assignee shall, immediately prior to the transactions contemplated in the Sale
Agreement, own and control the 100% fee interest in certain real property,
personal property and related property rights (the "PROPERTY") located in County
of New York, State of New York. Any initially capitalized terms not otherwise
defined herein shall have the meaning ascribed to such term in the Sale
Agreement; and
WHEREAS, the Sale Agreement provides, INTER ALIA, that Assignor shall
assign to Assignee rights to certain intangible property and that Assignee shall
assume all of the obligations of Assignor under such intangible property from
and after the date of such assignment, and that Assignor and Assignee shall
enter into this Assignment,
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and other good and valuable consideration the
receipt and adequacy of which are hereby conclusively acknowledged, the parties
hereto hereby agree as follows:
1. ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS. Assignor hereby assigns, sets
over and transfers to Assignee all of its right, title and interest in, to and
under if and to the extent assignable by Assignor without expense or liability
to Assignor, (a) all service, supply, maintenance, utility and commission
agreements, all equipment leases, and any additional service, supply,
maintenance, utility contracts entered into in accordance with the terms of
Subsection 9.2.1 of the Sale Agreement and subject to the limitations pursuant
to Section 13.3 of the Sale Agreement (all of the foregoing being herein
collectively called the "CONTRACTS" and listed in EXHIBIT A), and (b) to the
extent that the same have been obtained by Assignor prior to the date hereof,
any licenses, permits and other written authorizations necessary for the use,
operation or ownership of the Property (herein collectively called the "LICENSES
AND PERMITS"). Subject to any limitations expressly set forth in Subsection
c(iv) of that certain As-Is Certificate and Agreement, bearing even date
herewith, executed by Buyer and Assignee to and for the benefit of Assignor (the
"AS-IS CERTIFICATE"), Assignee hereby assumes and takes responsibility for all
losses, costs, claims, liabilities, expenses, demands and obligations of any
kind or nature whatsoever attributable to the Contracts and the Licenses and
Permits whether arising or accruing before or after the date hereof whether
attributable to events or circumstances which may have heretofore or hereafter
occur.
2. ASSIGNMENT OF WARRANTIES AND GUARANTEES. Assignor hereby assigns, set over
and transfers to Assignee all of its right, title and interest in, to and under
those certain warranties and guarantees set forth in EXHIBIT B attached hereto
and incorporated herein by this reference, to the extent assignable.
3. INDEMNITY. Subject to any limitations expressly set forth in Subsection c(v)
of the As-Is Certificate, Assignee hereby agrees to indemnify, defend and hold
harmless Assignor and any partner, officer, director, employee, agent or
attorney of Assignor, its counsel, or its advisors, and any other party related
in any way to any of the foregoing from all losses, costs, claims, liabilities,
expenses, demands and obligations of any kind or nature whatsoever attributable
to the Contracts and the Licenses and Permits whether arising or accruing before
or after the date hereof whether attributable to events or circumstances which
may have heretofore or hereafter occur.
4. MISCELLANEOUS. This Assignment and the obligations of the parties hereunder
shall survive the closing of the transaction referred to in the Sale Agreement
and shall not be merged therein, shall be binding upon and inure to the benefit
of the parties hereto, their respective legal representatives, successors and
assigns, shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be wholly performed
within said State and may not be modified or amended in any manner other than by
a written agreement signed by the party to be charged therewith.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
5. COUNTERPARTS. This Assignment may be executed in counterparts, each of
which shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, each of the undersigned has caused this Assignment
to be duly executed on its behalf by its respective duly authorized
representative as of the day and year first above written.
ASSIGNOR:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation
By: ________________________________
Name: Peter L. Ruggiero
Title: Vice President
ASSIGNEE:
____________________________________,
a Delaware limited liability company
By: SL GREEN 100 PARK LLC,
a New York limited liability company
Title: Managing Member
By: SL Green Operating Partnership, L.P.,
a Delaware limited partnership
its Member
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By: ________________________
Name:
Title:
<PAGE>
EXHIBIT "A" TO ASSIGNMENT OF CONTRACTS
LIST OF CONTRACTS
_________________
All contracts are terminable upon the sale of the Property, but require 30 day's
notice to terminate.
CONTRACTOR Gemini/Central Elevator Company
TYPE OF SERVICE Elevator Maintenance
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $17,508.44
CONTACT Sal Sena
PHONE NUMBER 212-987-7990
CONTRACTOR Parker Interior Plantscape
TYPE OF SERVICE Interior Landscaping
TERM Two Years
EXPIRATION DATE May 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $1,006.70
CONTACT Rod Henson
PHONE NUMBER 212-541-8144
CONTRACTOR Remco Maintenance Corporation
TYPE OF SERVICE Metal Maintenance
TERM One Year
EXPIRATION DATE March 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $4,709.96
CONTACT James DuBon
PHONE NUMBER 212-695-1033
CONTRACTOR AFA Protective Systems Inc.
TYPE OF SERVICE Fire Alarm Central Hook Up
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $150.47
CONTACT Richard Behan
PHONE NUMBER 212-279-5000
CONTRACTOR Broadway Maintenance
TYPE OF SERVICE Lighting Maintenance for Neon Lights
TERM Four Years
EXPIRATION DATE June 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $178.61
CONTACT Al Higger
PHONE NUMBER 718-670-7195
CONTRACTOR Crocker Fire Drill Corporation
TYPE OF SERVICE Local Law 5/Fire Drills
TERM Three Years
EXPIRATION DATE July 31, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $335.57
CONTACT Stanley Janovici
PHONE NUMBER 516-277-7602
CONTRACTOR Touchcom
TYPE OF SERVICE Lobby Directory
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $338.28
CONTACT Julie Ahlquist
PHONE NUMBER 781-273-3495 (fax 781-272-4098)
CONTRACTOR Comtran Associates
TYPE OF SERVICE Portable Radio Repair/Maintenance
TERM Three Years
EXPIRATION DATE June 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $162.38/8-1(189.44) 11-1(230.03)
CONTACT Allen Rosenbluth
PHONE NUMBER 718-531-7676
CONTRACTOR Unity Program and Metering
TYPE OF SERVICE Electric Meter Readings/Audit
TERM Monthly
EXPIRATION DATE March 31, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $653.50 for 51 meters; $8.50 ea. additional meter
CONTACT Kathleen Lorio
PHONE NUMBER 212-260-4800
CONTRACTOR Utility Program and Metering
TYPE OF SERVICE Water Meter Readings/Audits
TERM Monthly
EXPIRATION DATE March 31, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $152.00 (17 meters current)
$100.00 for 5 meters; $6.50 ea. additional meter
CONTACT Kathleen Lorio
PHONE NUMBER 212-260-4800
<PAGE>
CONTRACTOR Waldorf Carting Corporation
TYPE OF SERVICE Rubbish Removal
TERM Two Years
EXPIRATION DATE April 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $1,163.69
CONTACT Paul Connolly
PHONE NUMBER 718-585-2390
CONTRACTOR Walker Thomas Associates
TYPE OF SERVICE Fire Life Safety
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Quarterly
PAYMENT AMOUNT $9,289.20
CONTACT Walter Bougades
PHONE NUMBER 718-937-3275
CONTRACTOR W.H. Christian & Sons, Inc.
TYPE OF SERVICE Uniform Rental/Cleaning(Engineers)
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT Varies (approximately 175.00/month)
CONTACT Thomas Christian
PHONE NUMBER 718-389-7000
CONTRACTOR Atlantic Business Products/Greentree Vendor Svc.
TYPE OF SERVICE Copy Machine
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $284.24
CONTACT Bob Cohen
PHONE NUMBER 718-994-9199
CONTRACTOR North Eastern Chemicals
TYPE OF SERVICE Chemical Contract
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $668.34
CONTACT Jerry Berkley
PHONE NUMBER 201-342-8774
<PAGE>
CONTRACTOR Recall Paging
TYPE OF SERVICE Paging Service
TERM Three Years
EXPIRATION DATE June 30, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $30.31
CONTACT Donna Rubano
PHONE NUMBER 732-706-3586
CONTRACTOR Bell Atlantic Mobile
TYPE OF SERVICE Cellular Phone
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $36.92 (basic service)
CONTACT
PHONE NUMBER 800-227-1069
<PAGE>
EXHIBIT "B" TO ASSIGNMENT OF CONTRACTS
LIST OF WARRANTIES AND GUARANTEES
---------------------------------
None
<PAGE>
EXHIBIT K
FORM OF NOTICE TO TENANTS
-------------------------
________ ___, 2000
Re: Notice of Change of Ownership
100 Park Avenue
New York, New York
Ladies and Gentlemen:
You are hereby notified as follows:
That as of the date hereof, The Prudential Insurance Company of America
has transferred, sold, assigned, and conveyed all of its interest in and to the
above-described property (the "PROPERTY") to (the "NEW OWNER").
Future notices and rental payments with respect to your lease premises
at the Property should be made to the New Owner in accordance with your lease
terms at the following address:
____________________________
____________________________
____________________________
____________________________
[Your cash security deposit] [To the extent possible, your security
deposit in the form of a letter of credit] in the amount of $_________________
has been transferred to the New Owner and as such the New Owner shall be
responsible for holding the same in accordance with the terms of your lease.
Sincerely,
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation
By: ___________________________________
Name: Peter L. Ruggiero
Title: Vice President
<PAGE>
EXHIBIT L
FORM OF FIRPTA AFFIDAVIT
------------------------
Section 1445 of the Internal Revenue Code provides that a transferee of a United
States real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a United States real property interest by THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New Jersey corporation ("PRUDENTIAL"), the
undersigned hereby certifies the following on behalf of Prudential:
Prudential is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations); and
Prudential's U.S. employer tax identification number is 22-1211670; and
Prudential's office address is 751 Broad Street, Newark, New Jersey,
07102-3777.
Prudential understands that this certification may be disclosed to the Internal
Revenue Service by transferee and that any false statement contained herein
could be punished by fine, imprisonment, or both.
The undersigned officer of Prudential declares that he has examined this
certification and to the best of his knowledge and belief it is true, correct
and complete, and he further declares that he has authority to sign this
document on behalf of Prudential.
Dated: ___________________, 2000.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation
By: ___________________________________
Name: Peter L. Ruggiero
Title: Vice President
<PAGE>
EXHIBIT M
FORM OF ASSIGNMENT OF NOTE AND MORTGAGE
KNOW THAT 745 PROPERTY INVESTMENTS, a Massachusetts business trust having an
office at 8 Campus Drive, Parsippany, New Jersey 07054 ("ASSIGNOR"),
in consideration of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby conclusively
acknowledged, paid by ____________ ______________________________________, a
_____________________ having an office at______________________ ("ASSIGNEE"),
hereby assigns unto Assignee, without recourse, representation or warranty,
except as specifically set forth herein, that certain mortgage (the "EXISTING
MORTGAGE") described on EXHIBIT A hereto and incorporated herein by this
reference,
TOGETHER with the promissory note (the "EXISTING NOTE") described on EXHIBIT A
attached and the moneys due and to grow due thereon with interest;
TO HAVE AND TO HOLD the same unto Assignee and to the successors, legal
representatives and assigns of Assignee forever.
Assignor hereby certifies that on the date of the execution and delivery of this
Assignment of Note and Mortgage (this "ASSIGNMENT") the aggregate principal
amount outstanding under and secured by the Existing Mortgage is
$112,000,000.00.
IN WITNESS WHEREOF, Assignor has duly executed this Assignment as of the ___ day
of _________, 2000.
745 PROPERTY INVESTMENTS,
a Massachusetts business trust
__________________________ By: __________________________
Witness Name:
Title:
<PAGE>
STATE OF _______________ )
) SS.:
COUNTY OF ______________ )
ON THE ____ DAY OF __________ IN THE YEAR ______ BEFORE ME, THE UNDERSIGNED, A
NOTARY PUBLIC IN AND FOR SAID STATE, PERSONALLY APPEARED
_________________________, PERSONALLY KNOWN TO ME OR PROVED TO ME ON THE BASIS
OF SATISFACTORY EVIDENCE TO BE THE INDIVIDUAL(S) WHOSE NAME(S) IS (ARE)
SUBSCRIBED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/SHE/THEY
EXECUTED THE SAME IN HIS/HER/THEIR CAPACITY(IES), AND THAT BY HIS/HER/THEIR
SIGNATURE(S) ON THE INSTRUMENT, 745 PROPERTY INVESTMENTS UPON BEHALF OF WHICH
THE INDIVIDUAL(S) ACTED, EXECUTED THE INSTRUMENT.
----------------------------------------------------------
(SIGNATURE AND OFFICE OF INDIVIDUAL TAKING ACKNOWLEDGEMENT)
<PAGE>
EXHIBIT "A" TO ASSIGNMENT OF NOTE AND MORTGAGE
DESCRIPTION OF EXISTING NOTE AND MORTGAGE
-----------------------------------------
1. Mortgage and Security Agreement, dated March 30, 1999, given by The
Prudential Insurance Company of America in favor of Asahi International
Ltd., and recorded on March 30, 1990 at Reel 1679, Page 2386 in the Office
of the New York County Clerk (the "OFFICE") as assigned pursuant to the
Assignment of Mortgage and Security Agreement between Asahi International
Ltd., as assignor, and 745 Property Investments, as assignee, dated as of
March 1, 1999, and recorded on September 21, 1999 at Reel 2957, Page 864 in
the Office.
2. Amended and Restated Note, dated March 1, 1999, made by The Prudential
Insurance Company of America in favor of 745 Property Investments, in the
amount of $112,000,000.
<PAGE>
EXHIBIT N-1
FORM OF TENANT ESTOPPEL CERTIFICATE
-----------------------------------
The Prudential Insurance Company of America
Ladies and Gentlemen:
By lease dated _________, 19__ (the "LEASE"), the undersigned ("TENANT") has
leased from THE PRUDENTIAL INSURANCE COMPANY OF AMERICA or its predecessors in
interest ("LANDLORD") the premises located at 100 Park Avenue, New York, New
York which is more particularly described in the Lease. Landlord, as owner of
the property (the "PROPERTY") of which the leased premises are a part, intends
to sell the Property to (the "COMPANY") who, as a condition to the purchase of
the Property, has required this tenant estoppel certificate.
In consideration of the Company's agreement to purchase the Property and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Tenant agrees and certifies to Landlord to the Company and
the Company's mortgage lender as follows:
1. (a) The leased premises and possession thereof are accepted; (b) Landlord has
completed all construction and improvements required under the terms of the
Lease to be completed by Landlord; (c) the Lease is in full force and effect;
(d) the Lease and each and every term, condition, covenant and agreement therein
including, without limitation, the agreement to pay rent, are binding on Tenant
and fully enforceable in accordance with their respective terms; and (e) lease
term began on , 199 and ends on , 199__.
2. The leased premises is comprised of __________ square feet of [office] space
located on the ____________________________________________.
3. Tenant has no option to extend the terms of the lease except as follows:
4. Tenant has received no rental concession which is presently in effect (or
which will be in effect in the future) and claims no present charge, credit,
lien or claim of offset against rent.
5. Rent is paid for the current month but is not paid and will not be paid more
than one month in advance. Basic or fixed rent is $ per month and is due on the
____ day of each month. A security deposit in the amount of $ has been paid to
Landlord.
6. There are no existing defaults, or conditions that with the giving of notice
or the lapse of time or both would constitute a default, by reason of any act or
omission of the Landlord except as follows:
7. The Lease has not been modified, except in accordance with the amendments
dated as follows:
8. Attached is a true and correct copy of the Lease together with all
amendments, modifications or renewals.
9. Tenant has no option or right of first refusal with respect to renting any
additional space or acquiring any additional interest in the Property except as
follows: .
10. Tenant has no option, right of first refusal or other right to purchase the
Property or any portion thereof or any interest therein pursuant to the terms of
the Lease or contained in any other document or agreement (written or oral)
whatsoever. The only interest of Tenant in the Property is that of a tenant
pursuant to the terms of the Lease. Tenant hereby waives any option, right of
first refusal or other right to purchase the Property or any portion thereof or
interest therein that is contained in the Lease or any other document or
agreement, if any.
11. This certificate may be relied upon by Landlord, the Company, the Company's
mortgage lender from time to time, and their respective successors and assigns.
TENANT:
__________________________
By:________________________
Name: __________________
Title:__________________
Date:__________________, _____
<PAGE>
EXHIBIT N-2
FORM OF SELLER'S REPRESENTATION LETTER
--------------------------------------
TO:________________________________
RE: Lease dated _____________________
Landlord: The Prudential Insurance Company of America
Tenant: _______________________________
Demised Premises: Suite ___, 100 Park Avenue, New York, New York
Current Base Rental: $________ per annum
The undersigned ("SELLER") hereby certifies as of the date hereof, the
following:
1. Attached hereto is a true, correct and complete copy of the
above-described Lease along with all amendments and modifications thereto
(herein collectively called the "LEASE").
2. The Lease is in full force and effect and has not been amended,
modified, supplemented or superseded except as follows:
3. The information describing the Lease as shown above is correct except as
follows:
This letter is given by Seller to (the "COMPANY") in connection with a Purchase
and Sale Agreement (the "SALE AGREEMENT") between Seller, as seller, and SL
Green 100 Park LLC, as buyer ("BUYER"), dated as of November 19, 1999, which
provides for, among other things, the sale of a 49.9% ownership interest (the
"INTERESTS") in the Company to Buyer, which Company shall, immediately prior to
the transactions contemplated in the Sale Agreement, own and control the 100%
fee interest in certain real property, personal property and related property
rights located in County of New York, State of New York, and is intended solely
for the benefit of the Company and no other person or entity may rely on any
matter set forth herein. All capitalized terms used herein without definition
shall have the respective meanings ascribed to such terms in the Sale Agreement.
Seller shall only be liable to the Company or Buyer hereunder for a breach of a
representation and warranty made herein with respect to which a claim is made by
the Company against Seller on or before the one hundred eightieth (180th) day
after the date hereof; provided, however, that if Seller obtains a Clean
Estoppel from the tenant identified hereinabove after the date hereof that
complies with the terms of Subsection 6.3(m) of the Sale Agreement, this letter
shall be without further force or effect as of the date of such tenant's
estoppel certificate.
Anything in this letter to the contrary notwithstanding, the maximum aggregate
liability of Seller for Seller's misrepresentations or breaches of warranties
herein or in any documents executed or delivered by Seller at or prior to the
Closing (including, but not limited to, any of Seller's representation letters
delivered in lieu of tenant estoppels) shall be limited as set forth in Section
14.16 of the Sale Agreement. Notwithstanding the foregoing, however, if the
Closing occurs, Buyer hereby expressly waives, relinquishes and releases any
right or remedy available to it at law, in equity or under the Sale Agreement to
make a claim against Seller for damages that Buyer may incur, or to rescind the
Sale Agreement and the Transactions, as the result of any of Seller's
representations or warranties being untrue, inaccurate or incorrect if (a) Buyer
knew or is deemed to know that such representation or warranty was untrue,
inaccurate or incorrect at the time of the Closing, or (b) Buyer's damages as a
result of all such representations or warranties being untrue, inaccurate or
incorrect, when taken together, are reasonably estimated to aggregate less than
TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00).
Dated as of this day of , 2000.
---------------
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By: ___________________________________
Name: Peter L. Ruggiero
Title: Vice President
<PAGE>
EXHIBIT O
ASSIGNMENT AND ASSUMPTION OF MEMBER INTEREST AGREEMENT
------------------------------------------------------
This ASSIGNMENT OF MEMBER INTEREST AGREEMENT (this "ASSIGNMENT") is
entered into as of _____________, by and between [Prudential Entity], a
_________________ ("ASSIGNOR"), as assignor, and SL Green 100 Park LLC, a New
York limited liability company ("ASSIGNEE"), as assignee.
RECITALS:
A. [JV Entity], a Delaware limited liability company (the "COMPANY"), was
formed on the date hereof pursuant to the terms and conditions of, and for the
purposes set forth in, that certain operating agreement (the "Operating
Agreement"), dated as of the date hereof, between Assignor and The Prudential
Insurance Company of America;
B. Assignor is the owner of a forty-nine and nine-tenths percent (49.9%)
membership interest in the Company;
C. Assignor desires to sell, assign, transfer and convey to Assignee all of
its right, title and interest in and to its membership interest in the Company
(the "ASSIGNED INTEREST"), all upon the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
conclusively acknowledged, the parties hereto hereby agree as follows:
1. Representations. Assignor hereby represents and warrants to Assignee
that (i) as of the date hereof and immediately prior to the transactions
contemplated hereby, Assignor is the sole owner of the Assigned Interest, (ii)
Assignor has not sold, transferred, pledged or encumbered or agreed to sell,
transfer pledge or encumber the Assigned Interest or any interest in the Company
other than to Assignee in accordance with this Agreement; (iii) Assignor is duly
organized (or formed), validly existing and in good standing under the laws of
its state of organization, is authorized to consummate the transactions
contemplated hereby and fulfill all of its obligations hereunder and has all
necessary power to execute and deliver this Assignment and all documents
contemplated hereunder to be executed by Assignor and to perform its obligations
hereunder and thereunder; (iv) this Assignment and all documents contemplated
hereunder to be executed by Assignor have been duly authorized by all requisite
corporate action on the part of Assignor and are the valid and legally binding
obligation of Assignor enforceable in accordance with their respective terms;
and (v) neither the execution and delivery of this Assignment and all documents
contemplated hereunder to be executed by Assignor, nor the performance of the
obligations of Assignor hereunder or thereunder, will result in the violation of
any applicable law or any provision of the articles of incorporation and by-laws
of Assignor or will conflict with any order or decree of any court or
governmental instrumentality of any nature by which Assignor is bound.
2. Assignment. (a) Assignor hereby sells, assigns, transfers, and conveys
to Assignee all of the right, title and interest of Assignor in and to the
Assigned Interest, including, without limitation, all right, title and interest
of Assignor, if any, in and to the properties (real and personal) and capital of
the Company and all distributions and allocations made or to be made in respect
of the Assigned Interest, on an "as is" basis, consistent with and subject to
the terms of that certain As-Is Certificate and Agreement of even date herewith
by Assignee to and for the benefit of The Prudential Insurance Company of
America and Assignor.
(b) Assignee hereby accepts the Assigned Interest and agrees to become a
substitute member of the Company in the place and stead of Assignor with respect
to the Assigned Interest conveyed to Assignee by this Assignment, on an "as is"
basis, consistent with and subject to the terms of that certain As-Is
Certificate and Agreement of even date herewith by Assignee to and for the
benefit of The Prudential Insurance Company of America and Assignor.
3. Assumption. Assignee hereby assumes and agrees to be bound by the terms
of the Operating ---------- Agreement, as amended and restated on the date
hereof.
4. Profits, Losses and Distributions. The net income or net loss of the
Company allocable to the Assigned Interest shall be credited or charged, as the
case may be, to Assignee and not to Assignor. Assignee shall be entitled to all
distributions or payments in respect of the Assigned Interest made on or after
the date hereof, regardless of when the source of those distributions was earned
by the Company.
5. Further Assurances. Each of Assignor and Assignee agrees promptly your
demand to execute such further documents and instruments of assignment as may be
reasonably necessary or desirable to effectuate or evidence the transactions
contemplated by this Assignment.
6. Effective Date. This Assignment shall be effective as of the date
hereof.
7. Successors and Assigns. This Assignment shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
assigns.
8. Governing Law. This Assignment shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements made
and to be performed entirely within such state.
9. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Assignment by
their respective duly authorized representatives as of the date set forth in the
introductory paragraph hereof.
ASSIGNOR:
--------
[PRUDENTIAL ENTITY]
ASSIGNEE:
--------
SL GREEN 100 PARK LLC,
a New York limited liability company
SL Green Operating Partnership, L.P.,
a Delaware limited partnership
its Member
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By: ________________________
Name:
Title:
<PAGE>
UNIFORM CERTIFICATE OF ACKNOWLEDGMENT
STATE OF _____________ )
: ss
COUNTY OF ___________ )
On the ______ day of ____________ in the year ______ before me, the
undersigned, a Notary Public in and for said State, personally appeared
__________________________, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s) or the entity upon behalf of
which the individual(s) acted, executed the instrument.
--------------------------------------------------------
Signature and Office of individual taking acknowledgment
UNIFORM CERTIFICATE OF ACKNOWLEDGMENT
STATE OF _____________ )
: ss
COUNTY OF ___________ )
On the ______ day of ____________ in the year ______ before me, the
undersigned, a Notary Public in and for said State, personally appeared
__________________________, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s) or the entity upon behalf of
which the individual(s) acted, executed the instrument.
--------------------------------------------------------
Signature and Office of individual taking acknowledgment
<PAGE>
EXHIBIT P
FORM OF ERISA REPRESENTATION
----------------------------
____________________, 2000
The Prudential Insurance Company of America
Prudential Real Estate Investors
PAMG-RE Law Department
8 Campus Drive, 4th Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Peter L. Ruggiero
Re: Sale of Property Number _____________
100 Park Avenue
New York, New York
Ladies and Gentlemen:
This letter is being given to you as a condition precedent to the consummation
of the transaction (the "TRANSACTIONS") contemplated by the terms of that
certain Purchase and Sale Agreement, dated as of November 19, 1999, by and
between the undersigned and The Prudential Insurance Company of America, a New
Jersey corporation ("SELLER").
To satisfy compliance with the Employee Retirement Income Security Act of 1974,
as amended, the undersigned represents and warrants to Seller that:
a. neither the undersigned nor any of its affiliates (within the meaning of Part
V(c) of Prohibited Transaction Exemption 84-14 granted by the U.S. Department of
Labor ("PTE 84-14")) has, or during the immediately preceding year has
exercised, the authority to appoint or terminate Seller as investment manager of
any assets of the employee benefit plans whose assets are held by Seller or to
negotiate the terms of any management agreement with Seller on behalf of any
such plan;
b. the Transaction is not specifically excluded by Part I(b) of PTE 84-14; and
<PAGE>
c. the undersigned is not a related party of Seller (as defined in V(h) of
PTE 84-14).
SL GREEN 100 PARK LLC,
a New York limited liability company
Title: Managing Member
By: SL Green Operating Partnership, L.P.,
a Delaware limited partnership
its Member
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By:___________________________
Name:____________________
Title:___________________
<PAGE>
EXHIBIT Q
LITIGATION NOTICES, CONTRACT DEFAULTS
AND GOVERNMENTAL VIOLATIONS
-------------------------------------
LITIGATION PENDING
- ------------------
1. NAME: Joycelyn M. Vilmenay
DEFENDANT: Prudential Realty Corporation
DOCKET #: 012475/97
DOCKETED: Supreme Court State of New York, County of Queens
CLAIMED: $1,000,000.00
DESCRIPTION: Plaintiff alleges while descending the stairway
leading to the supply room located within the
Property she was caused to fall and be violently
precipitated to the ground by reason of unsafe,
dangerous, impassable and defective condition
which consisted of steps which were worn, eroded,
deteriorated, dilapidated, cracked, broken and/or
misleveled which existed by reason on the
negligence, carelessness and recklessness of the
defendant. She allegedly sustained severe and
serious injuries as a result of the fall.
2. NAME: Christian Whea/Novelette Whea
DEFENDANT: Prudential Realty
Gemini Elevator Corporation
Cushman & Wakefield as Managing Agent
DOCKET #: 1804/99
DOCKETED: Supreme Court Kings County
CLAIMED: $2,200.00
DESCRIPTION: The plaintiff alleges that he was struck by an
elevator door while working on the loading dock
and the freight elevator.
3. NAME: Winford Hall
DEFENDANT: The Prudential Insurance Co. of America
Cushman & Wakefield of New York, Inc.
Pritchard Industries, Inc.
DOCKET #: 16873/98
DOCKETED: Supreme Court, Bronx, New York
CLAIMED: $2,000,000.00
DESCRIPTION: Plaintiff alleges he was caused to fall in the
lobby area of the Property and the defendants were
negligent in improperly maintaining the floor in
the lobby area and as a result the plaintiff has
sustained severe personal injuries.
4. NAME: Cheryl Kaplan
DEFENDANT: Pritchard Industries
DOCKETED: Supreme Court, Brooklyn, New York
CLAIMED: $2,000,000.00
DESCRIPTION: Plaintiff fell on the sidewalk in front of 100
Park on a snowy day. Plaintiff claimed the
sidewalk was not cleaned properly.
<PAGE>
EXHIBIT R
LIST OF SERVICE CONTRACTS BINDING ON THE COMPANY AFTER CLOSING
--------------------------------------------------------------
All contracts are terminable upon the sale of the Property but require 30 day's
notice to terminate.
CONTRACTOR Gemini/Central Elevator Company
TYPE OF SERVICE Elevator Maintenance
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $17,508.44
CONTACT Sal Sena
PHONE NUMBER 212-987-7990
CONTRACTOR Parker Interior Plantscape
TYPE OF SERVICE Interior Landscaping
TERM Two Years
EXPIRATION DATE May 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $1,006.70
CONTACT Rod Henson
PHONE NUMBER 212-541-8144
CONTRACTOR Remco Maintenance Corporation
TYPE OF SERVICE Metal Maintenance
TERM One Year
EXPIRATION DATE March 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $4,709.96
CONTACT James DuBon
PHONE NUMBER 212-695-1033
CONTRACTOR AFA Protective Systems Inc.
TYPE OF SERVICE Fire Alarm Central Hook Up
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $150.47
CONTACT Richard Behan
PHONE NUMBER 212-279-5000
CONTRACTOR Broadway Maintenance
TYPE OF SERVICE Lighting Maintenance for Neon Lights
TERM Four Years
EXPIRATION DATE June 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $178.61
CONTACT Al Higger
PHONE NUMBER 718-670-7195
CONTRACTOR Crocker Fire Drill Corporation
TYPE OF SERVICE Local Law 5/Fire Drills
TERM Three Years
EXPIRATION DATE July 31, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $335.57
CONTACT Stanley Janovici
PHONE NUMBER 516-277-7602
CONTRACTOR Touchcom
TYPE OF SERVICE Lobby Directory
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $338.28
CONTACT Julie Ahlquist
PHONE NUMBER 781-273-3495 (fax 781-272-4098)
CONTRACTOR Comtran Associates
TYPE OF SERVICE Portable Radio Repair/Maintenance
TERM Three Years
EXPIRATION DATE June 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $162.38/8-1(189.44) 11-1(230.03)
CONTACT Allen Rosenbluth
PHONE NUMBER 718-531-7676
CONTRACTOR Unity Program and Metering
TYPE OF SERVICE Electric Meter Readings/Audit
TERM Monthly
EXPIRATION DATE March 31, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $653.50 for 51 meters; $8.50 ea. additional meter
CONTACT Kathleen Lorio
PHONE NUMBER 212-260-4800
CONTRACTOR Utility Program and Metering
TYPE OF SERVICE Water Meter Readings/Audits
TERM Monthly
EXPIRATION DATE March 31, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $152.00 (17 meters current)
$100.00 for 5 meters; $6.50 ea. additional meter
CONTACT Kathleen Lorio
PHONE NUMBER 212-260-4800
CONTRACTOR Waldorf Carting Corporation
TYPE OF SERVICE Rubbish Removal
TERM Two Years
EXPIRATION DATE April 30, 2000
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $1,163.69
CONTACT Paul Connolly
PHONE NUMBER 718-585-2390
CONTRACTOR Walker Thomas Associates
TYPE OF SERVICE Fire Life Safety
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Quarterly
PAYMENT AMOUNT $9,289.20
CONTACT Walter Bougades
PHONE NUMBER 718-937-3275
CONTRACTOR W.H. Christian & Sons, Inc.
TYPE OF SERVICE Uniform Rental/Cleaning(Engineers)
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT Varies (approximately 175.00/month)
CONTACT Thomas Christian
PHONE NUMBER 718-389-7000
CONTRACTOR Atlantic Business Products/Greentree Vendor Svc.
TYPE OF SERVICE Copy Machine
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $284.24
CONTACT Bob Cohen
PHONE NUMBER 718-994-9199
CONTRACTOR North Eastern Chemicals
TYPE OF SERVICE Chemical Contract
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $668.34
CONTACT Jerry Berkley
PHONE NUMBER 201-342-8774
CONTRACTOR Recall Paging
TYPE OF SERVICE Paging Service
TERM Three Years
EXPIRATION DATE June 30, 2001
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $30.31
CONTACT Donna Rubano
PHONE NUMBER 732-706-3586
CONTRACTOR Bell Atlantic Mobile
TYPE OF SERVICE Cellular Phone
TERM Month to Month
EXPIRATION DATE 30 Day Notice
PAYMENT FREQUENCY Monthly
PAYMENT AMOUNT $36.92 (basic service)
CONTACT
PHONE NUMBER 800-227-1069
<PAGE>
EXHIBIT S
LIST OF TENANTS AND TENANT'S LEASES
-----------------------------------
<TABLE>
<CAPTION>
<S> <C> <C> <C>
B01 Robelen Chemists 8/23/95
B02, 03 US Trust 9/23/87
B04 Vacant
B05 Goodkind Labaton 12/15/92 Letter dated 1/21/93
B06-08 JW Seligman 10/30/92 *Letter Agree. 9/1/93
Letter Agree. 3/1/94
1st Supplement 12/30/96
2nd Supplement 3/1/97
3rd Supplement 5/30/97
4th Supplement 10/1/97
B09
B09B Davis Scott 12/29/95 Guaranty dated 12/29/95
B10 Peking Park 10/25/90 1st Supplemental 8/31/92
Stipulation of Settlement
B11 Vacant
B03A J & W Seligman 06/16/95 See B06-08
B14 Davis Scott Weber & Edwards See B09
B23 Pomerantz 8/1/92 Amendment 3/4/94
B12 Hertzog Calamari - vacated
B17 Interoffice 6/1/94 Security Agreement 6/17/94
B19 Intercep 9/14/92
B16 MCI Telecom 08/29/89
BMZ06 Kimmelman & Baird 10/01/97
BMZ01 Davis Scott Weber & Edwards 12/29/95
180 UPS
175 100 Park K & C Inc. 11/1/96 1st Amendment 10/1/98
Agreement dated 10/1/98
Stipulation of Settlement 10/21/98
Commencement Date Letter 3/11/98
1660 Tobmar Int'l 12/96
125 US Trust Co. See B02, 03
110 Timothy's Coffee 8/25/93
100 Robelen Chemists See B01
200A-200 Seligman Data 10/30/92 1st Supplement 10/30/95
300 J & W Seligman See B06-08
500-600 Interep Nat'l 12/31/92
650 Mass Mutual Life 12/31/92
700-800 J & W Seligman See B06-08
900 Philip Morris 7/1/91 1st Supplement 12/16/96
1000 Philip Morris 3/1/91 1st Supplement 12/16/96
NDA dated 12/16/96
1100 Central Nat'l 9/9/77 2nd Amend. 9/16/92
3rd Amend. 01/30/97
1101 J & W Seligman See B06-08
1102 Drake Beam Morin, Inc. 5/1/96 1st Supplemental 10/01/97
1101/3401 Jarvis Walker 8/25/93 1st Supplemental 2/24/98
2nd Supplemental 8/23/99
1115 Management Office N/A
1200 Goodkind Labatan Rudoff 12/15/92 Letter dated 1/21/93
1300/1500 MCI Telecom 8/29/89 Assignment of Lease 1/31/94 FMV determination made.
1st Modification 5/1/95
1502 Albert J. Geduldig 6/25/96
1501/1501A Johnson Smith & Knisely, Inc. 10/31/95 1st Supplemental 11/15/97
1600/BSMT Interoffice Holdings Corp. 6/1/94 1st Supplemental 8/31/98
4,14,17 Fls. Philip Morris 3/1/91(10th fl) 1st Supplemental 12/16/96
adds 4,14 &
7/91 (9th fl) Non Disturbance 12/16/96 & 17 fls.
1800/1950& Kreindler & Kreindler 05/12/98
1900
2000/pt. 34th Southern Progress 6/3/94 1st Supplemental 7/1/98 Supplemental adds part 34th floor
space. NDA dated 6/6/94.
2150/2125 Kimelman & Baird, LLC 5/22/97 Added Space Agreement dated 10/01/97; 1st Supplemental
2/98 Space Agreement adds basement space;
Supplement adds add'l space. 2150 to existing space 2125.
2100 Hopper/New Tenant 11/13/89 (Lease expires 11/30/99)
2250 Robinson Murphy 5/29/99
2200/pt 23rd Manchester 3/27/90 1st Supplemental 6/24/99 Pursuant to supplemental,
23rd fl is substituted for 36th fl & portion of 22nd fl.
36th fl.(surrendered) added.
2501 Delmhorst & Sheehan, Inc. 12/31/93 Guaranty dated 6/28/94
2500/2701/ Laidlaw Holding Inc. 11/30/93 1st Supplemental 7/1/96
Supplemental 9/6/96
2800/2900 Consent to Sublease
Sublease Agreement 12/15/98
2600 Pomerantz Levy Haudek Block 8/1/92
2701/2702 Ericcson Corp. 7/26/84 1st Letter Agreement 2/24/94
2nd Letter Agreement 4/29/94 whereby Tenant surrenders
3,871 sq. ft. on 27th floor.
1st Supplemental 6/30/94
Partial Surrender Agreement 7/1/96
3003 Gates Capital 6/1/92 Extension of Term 5/21/97
Letter Agreement dated 5/21/97
3001 Langdon P. Cook 5/13/82 Modification 3/10/89
6/1/92 Extension of Term 5/21/97 a new lease.
Letter Agreement 5/21/97
31,32&33 fls. Davis Scott & Edward 12/29/95 Guaranty dated 12/29/95
3500 Slotnick & Shapiro 6/24/96 Side letter dated 6/24/96
3060 Don Buchwald LLP 3/15/99
</TABLE>
(Table Continued)
<TABLE>
<CAPTION>
<S> <C>
B01 Included in Lease for ground floor & mezz.
B02, 03 Included as part of ground fl., basement & mezz.
B04
B05 Letter of Credit 12/24/92. Included as part of 12th fl. & basement.
B06-08 Included as part of original lease for
7th & 8th fls., pt. 11th, pt. 11th , pt. 11th
& 3rd fl. & basement.
B09
B09B Included as part of entire 31st , 32nd & 33rd fls
B10 Portion of ground floor and basement.
B11
B03A
B14
B23 Included with 26th floor lease.
B12
B17
B19
B16
BMZ06
BMZ01
180 No lease on file with C & W.
175
1660
125
110
100
200A-200
300
500-600
650
700-800
900 Supplemental dated 12/16/96 for both 9th & 10th floors.
1000
1100
Sub Sublease dated 10/31/86.
1101
1102 Original lease was for 3rd fl. Brokers Agreement dated 10/14/97.
The 1st supplemental was for substitution of space on 11th fl.
1101/3401 Lease dated 8/25/93 for 11th fl. 1st supplemental added pt. 34th fl.
1115
1200 Letter of Credit dated 12/24/92. Automatically extended to 12/31/08.
1300/1500
1502
1501/1501A
1600/BSMT Amendment adds basement.
4,14,17 Fls. Supplemental terminates 9th fl and incorporates into 3/1/91 lease. Also
adds 4,14 &
1800/1950&
1900
2000/pt. 34th Supplemental adds part 34th floor space. NDA dated 6/6/94.
2150/2125
2100
2250 Letter of credit for $61,542.25 dated 4/2/99, expiring 3/1/00.
Subject to automatic extension for an additional year.
2200/pt 23rd
36th fl.(surrendered)
2501
2500/2701/ Letter Agreement dated 2/5/99. Original lease for 28th & 29th floors. 1st
supplemental adds 27th fl space. 2nd supplemental added 25th
2800/2900 floor space. Sublease of 27th floor space to Ericsson Corp.
2600
2701/2702 Original lease for suite 2700. Supplemental adds entire floor. Surrender agreement
3003
3001 Lease dated 5/82 & modification expired whereby Tenant & Landlord entered into
31,32&33 fls.
3500
3060
</TABLE>
<PAGE>
EXHIBIT T
LIST OF OUTSTANDING TENANT IMPROVEMENTS
---------------------------------------
RESPONSIBILITY OF THE COMPANY
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TENANT ESTIMATED AMOUNT DATE SCOPE
- ------ ---------------- ---- -----
Kreindler & Kreindler $ 60,000.00 April 1, 2000 (commence) 18th Fl. restrooms ADA
modification
Kreindler & Kreindler $ 5,000.00 April 1, 2000 Electrical Meters purchase
and installation
Philip Morris $ 6,100.00 Term of Lease Staircase/see lease detail
Philip Morris $250,000.00 2001 (Year) Paint/Carpet 9 & 10 floor
Drake Beam Morin $100,000.00 Completed by 12/31/03 Renovate 11th floor
</TABLE>
RESPONSIBILITY OF SELLER
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Manchester $393,360.00 Completion of Project Complete buildout
Jarvis Walker Group $198,580.00 Completion of Project Tenant construction
(partial)
</TABLE>
<PAGE>
EXHIBIT U
LIST OF OUTSTANDING LEASING COMMISSIONS
---------------------------------------
None
<PAGE>
EXHIBIT V
LIST OF ACTIONS RELATING TO PROPERTY'S ASSESSED VALUATION
---------------------------------------------------------
None
<PAGE>
EXHIBIT W
FORM OF MANAGEMENT AGREEMENT
----------------------------
<PAGE>
EXHIBIT X
LIST OF EMPLOYEES AND COLLECTIVE BARGAINING AGREEMENTS
------------------------------------------------------
INTERNATIONAL UNION OF OPERATING ENGINEERS
------------------------------------------
LOCAL 94-94A-94B
----------------
BUILDING ENGINEER SERVICES
--------------------------
1) Vincent Curcio Chief Engineer
2) Joe Faccioli Engineer
3) Hector Roman Engineer
4) Bart Bono Engineer Helper
5) Mark Ferro Engineer Helper
6) Timothy Byrne Engineer Helper
7) Stanley Perez Engineer Helper
8) Michael Brothers Engineer Helper
Agreement between International Union of Operating Engineers, Local 94-94A-94B,
ALF-CIO and the owners who become signatory to such agreement is attached
hereto.
The security, porters, freight elevator operators, day matron, and cleaning
staff are all employed by Pritchard Industries (Local 32B & J) and are not
building employees.
<PAGE>
EXHIBIT Y
INTENTIONALLY OMITTED
---------------------
<PAGE>
EXHIBIT Z
FORM OF LIMITED GUARANTY AGREEMENT
----------------------------------
THIS LIMITED GUARANTY AGREEMENT (this "AGREEMENT") is made as of the
__th day of __________, 2000, by and between THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation, (the "GUARANTOR") to _____________, a
Delaware limited liability company (the "COMPANY").
W I T N E S S E T H:
WHEREAS, Guarantor, as seller, and SL Green 100 Park LLC, as buyer
("BUYER"), are parties to a Purchase and Sale Agreement (the "SALE AGREEMENT")
dated as of November 19, 1999, which provides for, among other things, the sale
of a 49.9% ownership interest (the "INTERESTS") in the Company, which Company
shall, immediately prior to and after giving effect to the transactions
contemplated in the Sale Agreement, own and control the 100% fee interest in
certain real property, personal property and related property rights (the
"PROPERTY") located in County of New York, State of New York, commonly referred
to as 100 Park Avenue. Any initially capitalized terms not otherwise defined
herein shall have the meaning ascribed to such term in the operating agreement
of the Company ("OPERATING AGREEMENT");
WHEREAS, Buyer is willing to purchase the Interests only if Guarantor
agrees to guaranty payment of the Guaranteed Obligations (defined below) to the
Company in the manner hereinafter provided;
WHEREAS, Guarantor is willing to agree to guaranty payment of the
Guaranteed Obligations to the Company upon and subject to the terms and
conditions herein, including the Company's Reimbursement Obligations (defined
below),
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated into the operative provisions of this Agreement by this reference,
and for good and valuable other consideration, the receipt and adequacy of which
are hereby conclusively acknowledged, and intending to be legally bound hereby,
Guarantor and the Company hereby agree as follows:
1. GUARANTY OF PAYMENT. Guarantor hereby unconditionally and
irrevocably, guarantees, as primary obligor and not merely as surety, to the
Company and its successors, endorsees and/or assigns:
(a) The payment of an amount (the "BASE GUARANTY AMOUNT") equal to
(i) One Million Dollars ($1,000,000.00) less (ii) the gross fixed or base rental
income received by the Company in respect of Suites 2100, 2400 and 3601 of the
Property (the "GUARANTY SPACE") without reference to so-called "pass-throughs"
or "reimbursables" (the "RENTAL INCOME") during the one year period commencing
on the date hereof (the "INITIAL Year").
(b) The payment upon demand of all reasonable out-of-pocket costs
and expenses actually incurred by the Company in the collection of, enforcement
of, or realization under, this Agreement. The payment obligations guaranteed
pursuant to this Section 1 are hereinafter referred to as the "GUARANTEED
OBLIGATIONS".
2. DETERMINATION AND PAYMENT OF BASE GUARANTY AMOUNT. (a) The Base
Guaranty Amount shall be determined by the Company's Accountants based upon a
review of the relevant portions of the Company's books, bank account statements
and written statements from the tenants, if any, that are leasing or occupying
any portion of the Guaranty Space and such other information as the Company
and/or Guarantor deems to be reasonably relevant to the analysis. The Company
shall provide all relevant information to the Accountants as soon as practically
possible after the end of the Initial Year, but not later than ninety (90) days
thereafter. The Company's Accountants shall determine the Base Guaranty Amount
as promptly as possible after receipt of such information and shall notify all
parties promptly of its conclusive determination in writing. The failure of
Company's Accountant to give such notice shall not affect Guarantor's
obligations or constitute a defense thereto; provided that no Guaranteed
Obligations shall be paid until the Accountants have made their conclusive
determination. The Accountants' conclusions shall be binding absent manifest
error.
(b) Guarantor shall pay the Base Guarantee Amount to the Company
within sixty (60) days after the Accountants' notice is delivered to Guarantor.
3. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants
that:
(a) No consents or approvals of any kind by any other Person (other
than those heretofore obtained), and no license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required of Guarantor in
connection with this Agreement or the execution, delivery or performance of this
Agreement and Guarantor's obligations hereunder;
(b) There is no pending or, to Guarantor's knowledge, threatened
action or proceeding affecting Guarantor before any court, governmental agency
or arbitrator that could reasonably be expected to have a material adverse
effect on the ability of Guarantor to perform or observe any of its obligations
hereunder or that could reasonably be expected to have a material adverse effect
on Guarantor's guaranty of the Guaranteed Obligations hereunder;
(c) Guarantor has full power, authority and legal right to execute
and deliver this Agreement and to observe and perform all of the terms of this
Agreement to be observed and performed;
(d) The execution, delivery and performance by the Guarantor of this
Agreement have been duly authorized by all necessary corporate action on its
part, and this Agreement has been duly and validly executed and delivered by the
Guarantor and constitutes its legal, valid and binding obligation, enforceable
in accordance with its terms, subject to rights of creditors generally and
principles of equity; and
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions herein contemplated or compliance with the
terms and provisions hereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws of Guarantor, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any agreement or instrument to
which the Guarantor or any of its subsidiaries or affiliates is a party or by
which any of them is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument.
4. RELEASE OF GUARANTY. If the Company receives gross fixed or base
rent payments of One Million Dollars ($1,000,000.00) or more during the Initial
Year with respect to the Guaranty Space (other than funds determined by the
Company's Accountants to be payments made by or on behalf of tenants for
so-called "pass-throughs" or "reimbursables"), this Agreement shall
automatically terminate and become of no further force or effect.
5. LIABILITY OF GUARANTOR. (a) Guarantor agrees that its obligations
hereunder are irrevocable, absolute, independent and unconditional and shall not
be affected by any circumstance that constitutes a legal or equitable discharge
of a guarantor or surety other than indefeasible payment in full of the
Guaranteed Obligations; provided, however, that Guarantor's payment obligations
shall be limited to the assets of the PRISA account. In furtherance of, and
without limiting the generality of, the foregoing, Guarantor agrees as follows:
(i) This Agreement is a guaranty of payment and not of collection or
collectibility.
(ii) Payment by Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or abridge
Guarantor's liability for any portion of the Guaranteed Obligations that has not
been paid.
(b) Notwithstanding anything to the contrary contained herein, the
obligations of Guarantor shall not be construed under any circumstances to be an
assumption by Guarantor of any obligation with respect to reimbursable expenses,
tenant improvement allowances, tenant work and the like (it being understood and
agreed that such reimbursable expenses and capital costs shall be the
responsibility of the Company).
6. WAIVERS BY GUARANTOR. Guarantor hereby waives, for the benefit of
the Company:
(a) Any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Guarantor, including any defense
based on or arising out of the lack of validity or the unenforceability of the
Guaranteed Obligations or any agreement or instrument relating thereto;
(b) Any principles or provisions of law, statutory or otherwise,
that are or might be in conflict with the terms of this Agreement and any legal
or equitable discharge of Guarantor's obligations hereunder;
(c) The benefit of any statute of limitations affecting Guarantor's
liability hereunder or the enforcement hereof; and
(d) Notices, demands, presentments, demands for payment, protests,
notices of protest, notices of dishonor and notices of any action or inaction.
7. GUARANTOR'S RIGHT OF REIMBURSEMENT. Notwithstanding anything to the
contrary contained herein, and as more particularly described in the Operating
Agreement, the Company shall reimburse Guarantor an amount equal to sixty
percent (60%) of the Guaranteed Obligations actually paid by Guarantor to the
Company (a) in equal monthly installments over an 18-month period commencing on
the third (3rd) anniversary hereof or (b) at such earlier time as may be
consistent with the provisions of the Operating Agreement (such obligation, the
"REIMBURSEMENT OBLIGATION").
8. FURTHER ASSURANCES. At any time or from time to time, upon the
request of the Company, Guarantor shall execute and deliver such further
documents and do such other acts and things as the Company may reasonably
request in order to effect fully the purposes of this Agreement; provided that
the same shall not increase the obligations or decrease the rights, except to a
de minimis extent, of Guarantor hereunder.
9. NOTICES. Any notice, request, demand, consent, approval and other
communications under this Agreement shall be in writing, and shall be deemed
duly given or made at the time and on the date when received by facsimile
(provided that the sender of such communication shall orally confirm receipt
thereof by the appropriate parties and send a copy of such communication to the
appropriate parties within one (1) Business Day of such facsimile) or when
personally delivered as shown on a receipt therefor (which shall include
delivery by a nationally recognized overnight delivery service) or three (3)
Business Days after being mailed by prepaid registered or certified mail, return
receipt requested, to the address for each party set forth below. Any party, by
written notice to the other in the manner herein provided, may designate an
address different from that set forth below.
If to Company:
-------------
[**Name of Venture**]
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Mr. Marc Holliday
Telephone #: (212) 216-1785
Telecopy #: (212) 216-1684
Copies to:
---------
SL Green 100 Park LLC
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Benjamin Feldman, Esq.
Telephone #: (212) 216-1646
Telecopy #: (212) 216-1790
and
Greenberg Traurig
200 Park Avenue
New York, New York 10166
Attention: Robert J. Ivanhoe, Esq.
Telephone #: (212) 801-9333
Telecopy #: (212) 801-6400
If to the Guarantor:
-------------------
The Prudential Insurance Company of America
Prudential Real Estate Investors
8 Campus Drive, Fourth Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Mr. J. Allen Smith
Telephone #: (973) 683-1724
Telecopy #: (973) 683-1794
Copies to:
---------
The Prudential Insurance Company of America
Prudential Real Estate Investors
PAMG-RE Law Department
8 Campus Drive, Fourth Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Joan N. Hayden, Esq.
Assistant General Counsel
Telephone #: (973) 683-1772
Telecopy #: (973) 683-1788
and
O'Melveny & Myers LLP
153 East 53rd Street
New York, New York 10022
Attention: Jacqueline A. Weiss, Esq.
Telephone #: (212) 326-2110
Telecopy #: (212) 326-2061
10. NON-WAIVER.
(a) Delay Not a Waiver. No delay or omission by the Company to exercise
any right or remedy available to it with respect to the Guaranteed Obligations
or failure of the Company to insist on strict performance of any term of this
Agreement shall impair such exercise, or be construed to be a waiver of any such
default or an acquiescence therein.
(b) Certain Actions Not a Release. Guarantor shall not be relieved of
any of its obligations in respect of the Guaranteed Obligations by reason of,
and the rights of the Company hereunder shall not be affected by any failure of
the Company to comply with any request of Guarantor to take any action to
enforce any of the provisions of this Agreement. The Company shall not be
relieved of any of its obligations in respect of the Reimbursement Obligation by
reason of, and the rights of Guarantor hereunder shall not be affected by any
failure of Guarantor to comply with any request of the Company to take any
action to enforce any of the provisions of this Agreement.
11. CERTAIN DEFINITIONS. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided in this Agreement, (a)
the word the "COMPANY" shall mean the Company acting through its managing member
or other authorized person pursuant to the Operating Agreement, (b) the word
"Person" shall include an individual, corporation, limited liability company,
partnership, joint venture, trust (including any beneficiary thereof),
unincorporated association, government, governmental authority, or other form of
legal or business entity, and (c) the words "PROPERTY" shall include any portion
of the Property or interest therein.
12. MATTERS TO BE IN WRITING. The parties hereto acknowledge that this
Agreement cannot be extended, altered, modified, amended, terminated or
discharged except in a document executed by both parties and that none of the
rights or benefits of either party can be waived except in a document executed
by the other party. Guarantor further acknowledges its understanding that no
member of the Company has the power or the authority from the Company to effect
an oral extension, alteration, modification, amendment, termination or discharge
of any such instrument or agreement on behalf of the Company.
13. CAPTIONS NOT BINDING; EXHIBITS. The captions in this Agreement are
inserted for reference only and in no way define, describe or limit the scope or
intent of this Agreement or of any of the provisions hereof. All references to
"Articles," "Sections," "Subsections" and "Clauses" are to articles, sections,
subsections or clauses of this Agreement except as otherwise stated to the
contrary.
14. ENTIRE AGREEMENT. This Agreement, together with the Operating
Agreement, constitutes the entire agreement between Guarantor and the Company
with respect to the subject matter hereof and all understandings, oral
representations and agreements heretofore or simultaneously had among the
parties are merged in, and are contained herein.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be the obligation of
the parties and their respective successors and assigns, and all references in
this Agreement to either Guarantor or the Company shall be deemed to include all
of the foregoing respective Persons. This Agreement shall inure to the benefit
of the Company and Guarantor and their respective heirs, successors, substitutes
and assigns, and all references in this Agreement to the Company or the
Guarantor, respectively, shall be deemed to include all of the foregoing
respective Persons. Notwithstanding the foregoing, no assignment by Guarantor
shall release it of any of its obligations hereunder.
16. NO THIRD PARTY BENEFICIARIES. Nothing contained herein is intended
or shall be deemed to create or confer any rights upon any third Person not a
party hereto, whether as a third-party beneficiary or otherwise, except as
expressly provided herein.
17. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any Person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
such term or provision to such Person or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
18. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
conflict of laws principles.
19. CONSENT TO JURISDICTION. WITH RESPECT TO ANY SUIT, ACTION OR
PROCEEDINGS RELATING TO THIS AGREEMENT, (HEREIN COLLECTIVELY CALLED THE
"PROCEEDINGS"), EACH PARTY HERETO IRREVOCABLY (A) SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE COUNTY OF NEW YORK, STATE OF NEW YORK AND THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND (B)
WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY
PROCEEDINGS BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT SUCH PROCEEDINGS
HAVE BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO
OBJECT, WITH RESPECT TO SUCH PROCEEDINGS, THAT SUCH COURT DOES NOT HAVE
JURISDICTION OVER SUCH PARTY.
21. WAIVER OF JURY TRIAL. GUARANTOR AND THE COMPANY, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, Guarantor and the Company, by their respective duly
authorized representatives, duly executed this Agreement as of the day and year
first above written.
GUARANTOR:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey Corporation
By: ________________________________
Name: J. Allen Smith
Title: Principal
COMPANY:
By: SL GREEN 100 PARK LLC,
a New York limited liability company
Title: Managing Member
By: SL Green Operating Partnership, L.P.,
a Delaware limited partnership
its Member
By: SL Green Realty Corp.,
a Maryland corporation
its General Partner
By:_________________________
Name:__________________
Title:_________________
Exhibit 2.2
SECOND AMENDED
AND
RESTATED
OPERATING AGREEMENT
OF
SLG 100 PARK LLC
THIS SECOND AMENDED AND RESTATED OPERATING AGREEMENT (the
"Agreement"), dated as of the ___ day of _______________, 2000, by and between
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA ("Prudential"), a New Jersey
corporation, and SL GREEN 100 PARK LLC ("SLG") a New York limited liability
company.
RECITALS
WHEREAS, Prudential formed a Delaware limited liability
company (the "Company") pursuant to the Delaware Limited Liability Company Act
(6 Delaware Code, Section 18 101 et seq.), as amended from time to time
("Act"), named SLG 100 Park LLC, which Company was operated pursuant to that
Operating Agreement dated as of January 4, 2000 (the "Initial Operating
Agreement");
WHEREAS, the Initial Operating Agreement was modified to
reflect the admission of PIC Realty Corporation ("PIC"), a wholly owned
subsidiary of Prudential, as a member of the Company and the terms of the
Initial Operating Agreement were amended and restated in their entirety
pursuant to that certain Amended and Restated Operating Agreement dated as of
_____, 2000 (the Initial Operating Agreement, as so modified, the "Original
Operating Agreement");
WHEREAS, the Company owns (a) a certain parcel of real
estate together with all easements, appurtenances, rights, privileges,
reservations, tenements and hereditaments belonging thereto (the "Land")
located in New York, New York, commonly referred to as 100 Park Avenue and
more particularly described in Exhibit A; and (b) an office building and
related improvements and fixtures (collectively, the "Improvements") located
on the Land; and (c) personal property used on or in connection with the
operation of the Land and Improvements (the "Personal Property"; the Land, the
Improvements and the Personal Property are sometimes herein collectively
referred to as the "Property");
WHEREAS, PIC has on even date herewith transferred all of
its right, title and interest in and to the Company to SLG (Prudential and
SLG, collectively, the "Members," and individually, a "Member"); and
WHEREAS, the Members wish to amend and restate the terms of
the Original Operating Agreement in its entirety, so as to prescribe the terms
and conditions upon which the Company will be organized and operated by the
Members,
NOW, THEREFORE, in consideration of the foregoing recitals,
which are incorporated into the operative provisions of this Agreement by this
reference, other good and valuable consideration the receipt and adequacy of
which is hereby conclusively acknowledged and in reliance upon the covenants,
representations and warranties herein, Prudential and SLG hereby agree that
the Original Operating Agreement shall be amended and restated as follows:
ARTICLE 1.
DEFINITIONS
.1 Definitions. The following terms shall have the following
respective meanings when used in this Agreement:
AAA. American Arbitration Association.
Accountants. The firm of independent certified public
accountants retained by the Company at any relevant time to conduct the audits
and perform the other functions to be performed by the Accountants under this
Agreement, and if there is no such firm at such time, the firm that shall have
prepared the Company's then most recent statements and report. The Accountants
shall be the Initial Accountants or such other public accounting firm as may
be selected by Prudential pursuant to the provisions of Subsection 7.1(b)(3)
or as shall be designated by the Committee from time to time.
Accounting Period. As described in Subsection 9.1(f).
Act. As described in the Recitals.
Additional Capital Contribution. As described in Subsection
4.5(b).
Adjusted Capital Account. As described in Subsection 9.4(d).
Affiliate. With respect to any Member, a director,
president, chief executive officer or vice president (each an "Officer") of
such Member if such Member is a corporation; any individual who is an
immediate family member (i.e., spouse, lineal descendant or lineal ancestor)
of any Officer; any corporate owner or other owner (direct or indirect) of
such Member; any pension plan of such Member; any corporation owned, directly
or indirectly, by such Member, or any partnership or limited liability company
of which such Member (or the general partner or managing member of such
Member) owns, in the aggregate, greater than 50%, directly or indirectly, of
the general partnership interest or limited liability company interest or is
the managing general partner of such partnership or the managing member of
such limited liability company. A Person owns a corporation, for the purposes
of this definition, when the Person owns or beneficially owns more than 50% of
the outstanding voting shares of the corporation with the full right to vote
such stock.
Agent. As described in Section 2.4.
Agreement. This Operating Agreement, as it may be amended
from time to time as herein provided.
Anniversary Date. As described in Subsection 6.1(d).
Annual Audit. As described in Subsection 7.1(b)(3).
Annual Capital Budget. As described in Section 6.5.
Annual Leasing Plan. As described in Section 6.12.
Annual Operating Budget. As described in Section 6.5.
Bankruptcy Code. The United States Bankruptcy Code, 11
U.S.C. ss.ss. 101 et seq., as the same may be amended from time to time.
-- ---
Book Basis. With respect to any asset of the Company, the
adjusted basis for federal income tax purposes of such asset, except that in
the case of any asset contributed to or owned by the Company on the date of a
revaluation of the Capital Accounts of the Members in accordance with Treasury
Regulations Section 1.704-1(b)(2)(iv), "Book Basis" shall mean the fair market
value of such asset on the date of the contribution or revaluation as
subsequently adjusted (e.g., for depreciation or amortization in accordance
with federal income tax principles).
Borrowing Member. As described in Subsection 4.5(c).
Business Day. A day other than Saturday, Sunday or a legal
holiday for commercial lenders under the laws of the State of New Jersey or
the State of New York.
Buy-Sell Notice. As described in Subsection 10.3(a).
Buy-Sell Price. As described in Subsection 10.3(a).
Capital Account. As described in Subsection 7.9(a).
Capital Expenditures. All expenditures that are defined as
capital expenditures under generally accepted accounting principles, plus any
of the following, whether or not they are defined as capital expenditures
under generally accepted accounting principles: (a) expenditures to acquire
new assets or for an improvement to an existing asset that extends the useful
life of that asset and/or increases the value of that asset, (b) expenditures
for single assets that cost $1,000 or more, (c) expenditures for multiple
similar assets that aggregate more than $10,000 in a single Fiscal Year, (d)
expenditures to maintain the Property in first class condition and state of
repair or comply with requirements of laws, ordinances and governmental and
quasi-governmental rules and regulations applicable to the Property and the
requirements of insurance boards which are necessary in order to maintain
required insurance coverage for the Property at regular insurance rates, or
(e) expenditures to repair, rebuild or restore the Property to its original
condition following the occurrence of any condemnation or any fire or other
casualty to the Property with a cost to repair, rebuild or restore, equal to
or greater than $15,000, as determined by the Company's property insurer, or
if such insurer will not make such a determination, by the Committee.
Cash Needs Notice. As described in Subsection 4.5(a).
Certificate of Formation. The certificate of formation for
the Company, as duly filed with the Delaware Secretary of State, and all
amendments thereto adopted in accordance with this Agreement and the Act.
Code. The Internal Revenue Code of 1986, as amended from
time to time.
Committee. As described in Subsection 6.4(a).
Company. As described in the Recitals.
Default Price. As described in Subsection 13.2(c).
Defaulting Member. As described in Section 12.1.
Demand Notice. As described in Subsection 13.2(b).
Discount Period. As described in Subsection 10.3(d).
Emergency. As described in Subsection 4.5(c).
Emergency Loan. As described in Subsection 4.5(c).
Emergency Loan Repayment Date. As described in
Subsection 4.5(c).
Entire Interest. As described in Subsection 10.3(a).
Entity Level Transfer. As described in Subsection 10.1(d).
ERISA. The Employee Retirement Income Security Act of 1974,
as amended from time to time.
Extraordinary Cash Flow. As described in Subsection 9.1(b).
Failing Member. As described in Subsection 4.5(d).
Financial Need Date. As described in Subsection 4.5(b).
Fiscal Year. The Fiscal Year of the Company as described in
Section 8.1.
General Partner. As described in Subsection 11.2(a).
Guaranty Reimbursement Obligations. The obligations of
the Company to reimburse Prudential pursuant to the provisions of the Limited
Guaranty Agreement.
Improvements. As described in the Recitals.
Indemnitee. As described in Subsection 10.1(g).
Initial Accountants. E&Y/Kenneth Leventhal.
Initial Capital Account. Prudential's Initial Capital
Account and/or SLG's Initial Capital Account, as applicable.
Initial Lender. The Prudential Insurance Company of
America, the lender of the Initial Mortgage Loan.
Initial Management Agreement. As described in Section 6.10.
Initial Manager. As described in Section 6.10.
Initial Mortgage Loan. As described in Section 4.7.
Initiating Member. As described in Subsection 10.3(a).
Insolvency Action. Any of the following actions:
(i) file a voluntary petition or otherwise
initiate proceedings (A) to have such
Person adjudicated insolvent, or (B) seek
an order for relief of such Person as
debtor under the Bankruptcy Code;
(ii) file any petition seeking any composition,
reorganization, readjustment, liquidation,
dissolution or similar relief under the
present or any future federal bankruptcy
laws or any other present or future
applicable federal, state or other statute
or law relative to bankruptcy, insolvency,
or other relief for debtors with respect
to such Person;
(iii) seek or consent to or acquiesce in the
appointment of any trustee, receiver,
conservator, assignee, sequestrator,
custodian, liquidator (or other similar
official) of 25% or more or the Properties
of such Person (the term "acquiesce"
includes but is not limited to the failure
to file a petition or motion to vacate or
discharge any order, judgment or decree
providing for such appointment within
thirty (30) days after the appointment) or
of all or any substantial part of its
property;
(iv) give notice to any governmental body of such
Person's insolvency or pending insolvency, or
suspension of operations;
(v) make any general assignment for the
benefit of creditors of such Person; or
admit in writing the inability of such
Person to pay its debts generally as they
become due or take any other similar
action for the protection or benefit of
creditors; or
(vi) declare or effect a moratorium on such
Person's debt; or take any action in
furtherance of any such proscribed action.
Interests Transfer Lockout Period. As described in
Subsection 10.3(a).
Interest Value. As described in Subsection 10.5(a).
Land. As described in the Recitals.
Limited Guaranty Agreement. That certain Limited
Guaranty Agreement dated on even date herewith between Prudential and the
Company.
Liquidating Member. The Member in charge of winding up
the Company and having the powers described in Section 13.2.
Major Capital Event. A "Major Capital Event" is one or more
of the following: (a) Transfer of all or any part of or an interest in Company
property having a value of $250,000 or more in any one year, exclusive of
Transfers or other dispositions of tangible personal property in the ordinary
course of business; (b) placement and funding of any indebtedness of the
Company of $250,000 or more secured by some or all of its assets with respect
to borrowed money, excluding short term borrowing in the ordinary course of
business and excluding the Initial Mortgage Loan; (c) condemnation of all or
any part of or an interest in the Property having a value of $250,000 or more
through the exercise of the power of eminent domain, or (d) any loss of the
Property or any part thereof or an interest therein having a value of $250,000
or more by casualty, failure of title or otherwise.
Major Decisions. As described in Subsection 6.3(a).
Majority in Interest. Members owning more than fifty
percent (50%) of all of the Percentage Interests in the Company.
Managing Member. As described in Subsection 11.2(a).
Member(s). As described in the Recitals.
Members Requested Amount. As described in Subsection 4.5(a).
Minimum Gain. As described in Subsection 9.1(d).
Mortgage Loan. Any loan superseding and replacing the
Initial Mortgage Loan or any successor mortgage loan in its entirety.
Nondefaulting Member. As described in Section 12.1.
Nonfailing Member. As described in Subsection 4.5(d).
Non-Initiating Member. As described in Subsection 10.3(a).
Nonrecourse Deductions. As described in Subsection 9.1(e).
Notice of Default. As described in Section 12.1.
Notice of Offer. As described in Section 10.4.
Notices. As described in Section 14.1.
Offeree. As described in Section 10.4.
Offeror. As described in Section 10.4.
Operating Cash Flow. As described in Subsection 9.1(a).
Other Member. As described in Subsection 10.5(a).
Partner Nonrecourse Debt Minimum Gain. As described in
Subsection 9.1(g).
Percentage Interest. As to any Member, that Member's entire
interest in the Company, as such percentages may be adjusted from time to time
as provided herein. As of the date hereof, the Percentage Interests are 50.1%
in the case of Prudential and 49.9% in the case of SLG.
Permitted Investments. Any of the following:
(a) deposit accounts maintained at a savings bank,
savings and loan association or commercial bank;
(b) marketable obligations of the United States of America,
the full and timely payment of the principal and interest on which is backed
by the full faith and credit of the United States of America, which have a
maturity date not later than thirty (30) days after the acquisition thereof by
the Company;
(c) banker's acceptances, certificates of deposit and other
interest-bearing obligations denominated in dollars issued by institutions
whose short-term obligations have been rated A-1 (or better) by Standard &
Poors and that have a maturity date not later than thirty (30) days after the
acquisition thereof by the Company;
(d) commercial paper having a maturity date not later than
thirty (30) days after the acquisition thereof by the Company and having a
Standard & Poors rating of A-1 (or better); and
(e) freely redeemable shares in open-end money market mutual
funds that (1) maintain a constant net-asset value, (2) at the time of the
purchase of such shares by the Company have a Standard & Poors rating of AAA
or the equivalent thereof and (3) invest solely in obligations of the types
described in Clauses (a) through (d), without regard to the limitation set
forth in such Clauses as to the maturity of such obligations.
Person. Any individual, corporation, limited liability
company, partnership, joint venture, trust (including any beneficiaries
thereof), unincorporated association, government, governmental authority, or
other form of legal or business entity.
Personal Property. As described in the Recitals.
Plan Assets Regulation. As described in Subsection 6.1(d).
Plan Violation. A transaction, condition or event that would
(a) constitute a nonexempt prohibited transaction under ERISA; or (b) be
prohibited under state statutes regulating investments of fiduciary
obligations with respect to any "Governmental Plan" (as such term is defined
in ERISA).
Prime Rate. As defined in Section 5.1.
Profit or Loss. As described in Subsection 9.1(c).
Property. As described in the Recitals.
Property Transfer Lockout Period. As described in
Section 10.5.
Prudential. As described in the first paragraph of this
Agreement.
Prudential's Initial Capital Account. Prudential's
capital account effective upon the execution and delivery of this Agreement
in the amount set forth in Exhibit B.
Purchase Election Notice. As described in Subsection 10.5(b).
Qualified Income Offset Amount. As described in
Subsection 9.5(d).
Regular Managing Member. As described in Section 6.1.
REIT. As described in Section 2.6.
REIT Requirements. As described in Section 2.6.
Release. As described in Section 15.17.
Removal Notice. As described in Subsection 6.1(c).
REOC. As described in Subsection 6.1(d).
Right of First Refusal Period. As described in Section 10.4.
Right of First Refusal Price. As described in Section 10.4.
Sale Agreement. That certain Purchase and Sale Agreement
between Prudential, as Seller, and SLG, as Buyer, dated as of November 19,
1999 with respect to, among other things, SLG's acquisition of its Percentage
Interest in the Company.
Sales Notice. As described in Section 10.5.
Sales Price. As described in Section 10.5.
Securities Laws. As described in Subsection 10.8(a).
Seller Member. As described in Subsection 10.5(a).
SLG. As described in the first Paragraph of this Agreement.
SLG Realty. As described in Section 2.6.
SLG's Initial Capital Account. SLG's capital account
effective upon the execution and delivery of this Agreement in the amount set
forth in Exhibit B.
Special Loan. As described in Subsection 4.5(c).
Stated Value. As described in Subsection 10.3(a).
Third Party Contract. As described in Section 10.4.
TMP. As described in Section 7.6.
Transfer. (a) As a noun, any voluntary or involuntary,
direct or indirect, sale, conveyance, assignment, transfer, divestment,
alienation, pledge, hypothecation, creation of a security interest in, or
other disposition, or encumbrance, and (b) as a verb, voluntarily or
involuntarily, directly or indirectly, to sell, convey, assign, transfer,
divest, alienate, pledge, hypothecate, create a security interest in, or
otherwise dispose of or encumber; whether for consideration or gratuitously.
.2 Construction. The definitions in Section 1.1 and elsewhere in this
Agreement shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter form. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation," except where the context otherwise requires. The terms
"herein," "hereof" and "hereunder" refer to this Agreement in its entirety
unless the context otherwise requires. References to contracts, agreements,
leases and other contractual instruments shall be deemed to include all
subsequent amendments, supplements and other modifications permitted or not
prohibited, as appropriate, by the terms of this Agreement. References to
specific statutes include (a) successor statutes of similar purpose and
import, and (b) all rules, regulations and orders promulgated thereunder. The
term "provisions," when used with respect hereto or to any other document or
instrument shall be construed as if preceded by the phrase "terms, covenants,
agreements, requirements, conditions and/or." All references to "Articles,"
"Sections," "Subsections," "Clauses" and "Exhibits" are to articles, sections,
subsections, clauses and exhibits to this Agreement unless the context
otherwise requires.
.3 Exhibits. The Exhibits attached to this Agreement are an integral part
of this Agreement, and all references to this Agreement shall be deemed to
include the Exhibits hereto.
ARTICLE 2.
FORMATION OF COMPANY
.1 Members. The Members of the Company are Prudential and SLG.
.2 Name. The name of the Company shall be SLG 100 Park LLC.
.3 Registered Office. The registered office of the Company shall be
located c/o Corporation Trust Center, 1209 Orange Street, Wilmington, New
Castle County, Delaware 19805, or such other place as the Committee may from
time to time determine. The Company's principal office shall be located c/o SL
Green Realty Corp. at 420 Lexington Avenue, New York, New York 10170, or such
other place in New York City as the Regular Managing Member may from time to
time determine.
.4 Registered Agent; Service of Process. The name and address of the
registered agent of the Company is Corporation Trust Center, 1209 Orange
Street, Wilmington, New Castle County, Delaware 19805 (the "Agent"). Process
against the Company may be served upon the Agent. The Agent shall be directed
to mail a copy of any process against the Company served upon it to the
Company at the address set forth above. The Regular Managing Member shall
deliver a copy of any such process received by the Company to each of the
Members.
.5 Governing Law; Member Relations; Ownership of Property; Taxation as a
Partnership. Except as is expressly provided to the contrary herein, the
business, affairs, administration and termination of the Company shall be
governed by the Act, but, to the extent permitted thereby, shall not be
governed by any amendments to the Act that become effective after the date of
this Agreement and that would only be applicable to the Company absent a
provision in this Agreement to the contrary, unless such amendments are
adopted as amendments to this Agreement pursuant to Section 15.11. The
foregoing notwithstanding, the Members' duties and obligations to one another
shall be the same as partners in a partnership governed by the relevant
provisions of the Delaware Uniform Partnership Act and the case law
interpreting such act. In no event shall the previous sentence be construed or
applied in such a manner to cause the Company to be treated as a partnership
for any purpose other than the determination of the Members' respective duties
and obligations to one another. The interest of each Member in the Company
shall be personal property for all purposes. To the fullest extent permitted
by applicable law, no Member individually shall have any ownership interest in
any real or other property owned by the Company and all such property
(including the Property) shall be owned by the Company. Notwithstanding
anything in this Section 2.5 to the contrary, the Members intend that the
Company shall at all times be operated in such a manner that it will be taxed
as a partnership for federal and state income tax purposes.
.6 REIT Provisions.
(a) The Members recognize that SL Green Realty Corp. ("SLG Realty"),
an indirect owner of SLG, is a real estate investment trust (a "REIT") within
the meaning of Sections 856-859 of the Code. Each Member acknowledges and
agrees that the business of the Company shall be conducted so as to cause the
Company's income and assets to meet the requirements of Sections 856(c)(2),
(c)(3) and (c)(4) and 856(d) of the Code (as if the Company were a REIT) as in
effect from time to time ("REIT Requirements"), provided, however, that
nothing contained in this Subsection 2.6(a) shall permit the Company or the
Regular Managing Member to violate Subsection 6.1(d). The Regular Managing
Member will be responsible for operating the Company in accordance with the
foregoing requirements. In no event shall the Company, without the prior
written approval of SLG, (1) provide services to any tenant of the Property
that the Company is advised in writing by SLG or SLG Realty constitute
noncustomary services for purposes of Section 856(d)(7) of the Code, (2) enter
into any lease or other agreement with any tenant of the Property or service
provider that could adversely affect SLG Realty's status as a REIT, or (3)
acquire any stock in any corporation.
(b) SLG represents, warrants and covenants to Prudential that no
provision of this Agreement requires that the Company be operated contrary to
REIT Requirements.
.7 Purposes. The purposes of the Company shall be limited strictly to (a)
acquiring, owning, improving, maintaining, repairing, managing, constructing,
operating and leasing of the Property; (b) financing, refinancing or arranging
financing for any of the foregoing purposes or for making distributions to
Members, including the granting of mortgages or similar liens upon the
Company's property to secure the same; and (c) engaging in such other
operations and businesses as the Company deems necessary or appropriate for
the foregoing purposes subject to the other provisions of this Agreement. The
Company shall not engage in any other business.
.8 No Individual Authority. Except as otherwise expressly provided in this
Agreement, neither Member, acting alone, shall have any authority to act for,
or to create, undertake or assume any liabilities, obligations or
responsibility on behalf of the other Member or the Company.
.9 No Restrictions. Nothing contained in this Agreement shall be construed
so as to prohibit either Member or any Affiliate or any director, officer,
partner, employee or other Person related to any of them from owning,
operating, or investing in any real estate or real estate development not
owned or operated by the Company, wherever located and whether or not the same
competes with the Property. Each Member agrees that the other Member, any
Affiliate or any director, officer, employee, partner or other Person related
to such other Member may engage in or possess an interest in another business,
venture or ventures, of any nature and description, independently or with
others, including the ownership, financing, leasing, operation, management,
syndication, brokerage and development of real property other than the
Property, and neither the Company nor the Members shall have any rights by
virtue of this Agreement in and to such independent ventures or to the income
or profits derived therefrom.
.10 Neither Responsible for Other's Commitments. Neither Member nor the
Company shall be responsible or liable for any indebtedness or obligation of
the other Member incurred either before or after the execution of this
Agreement, except as to those joint responsibilities, liabilities, debts or
obligations incurred pursuant to the terms of this Agreement, and each
indemnifies and agrees to hold the other harmless from such obligations and
debts except as aforesaid.
.11 Representations by Members.
(a) Each Member represents and warrants to the other that (1) all
transactions contemplated by this Agreement to be performed by it have been
duly authorized by all necessary action and do not require the consent or
approval of any third party, (2) it has all necessary power with respect
thereto, (3) the consummation of such transactions will not (and with the
giving of notice or lapse of time or both would not) result in a breach or
violation of, or a default or loss of contractual benefits under, its
organizational and/or operational documents, any agreement by which it or any
of its properties is bound, or any statute, regulation, order or other law to
which it or any of its properties is subject, or give rise to a lien or other
encumbrance upon any of its properties or assets, (4) this Agreement is a
valid and legally binding agreement upon such Member, enforceable in
accordance with its terms, subject to applicable "creditors' rights laws and
principles of equity, and (5) such Member is not a "foreign person" as that
term is defined in Section 1445 of the Code.
(b) SLG further represents, warrants and covenants to Prudential
that SLG is duly organized (or formed), validly existing and in good standing
under the laws of its State of organization and the State in which the
Property is located, has all necessary power to execute and deliver this
Agreement and all documents contemplated hereunder to be executed or delivered
by SLG, and to perform all of its obligations hereunder and thereunder.
Neither the execution and delivery of this Agreement and all documents
contemplated hereunder to be executed or delivered by SLG, nor the performance
of the obligations of SLG hereunder or thereunder, will result in the
violation of any applicable law or any provision of the agreement of
partnership or articles of incorporation and by-laws of SLG or will conflict
with any order or decree of any court or governmental instrumentality of any
nature by which SLG is bound.
(c) Prudential further represents, warrants and covenants to SLG
that Prudential is duly organized (or formed), validly existing and in good
standing under the laws of its State of organization and the State in which
the Real Property is located and has all necessary power to execute and
deliver this Agreement and all documents contemplated hereunder to be executed
by Prudential and to perform its obligations hereunder and thereunder. Neither
the execution and delivery of this Agreement nor the performance of the
obligations of Prudential hereunder or thereunder, will result in the
violation of any applicable law or any provision of the articles of
incorporation and by-laws of Prudential or will conflict with any order or
decree of any court or governmental instrumentality of any nature by which
Prudential is bound.
ARTICLE 3.
TERM
.1 Term. The Company shall commence on the date the Certificate of
Formation is filed with the Delaware Secretary of State and shall dissolve
upon the first to occur of the following:
(a) Transfer or other disposition of all or substantially all of the
Property, other than (1) to a nominee or trustee of the Company for financial
or other business purposes or (2) pledges to secure the Initial Mortgage Loan
or any successor Mortgage Loan; or
(b) Dissolution of the Company pursuant to the express provisions of
Articles 10, 11, 12 or 13; or
(c) the fiftieth (50th) anniversary of the date hereof.
.2 Dissolution. The events of dissolution contained in Section 3.1 are the
only occurrences permitting or requiring dissolution of the Company. Each
Member waives all right, power and authority it may have under the Act or
other legal or equitable rights to require a dissolution of the Company and/or
partition of its assets other than as expressly provided in this Agreement.
The insufficiency of Operating Cash Flow to meet operating and capital costs
on a current basis shall not, to the fullest extent permitted under applicable
law, cause, or give rise to any action or proceeding the result of which might
be the dissolution of Company.
ARTICLE 4.
CAPITAL ACCOUNTS AND CONTRIBUTIONS OF THE MEMBERS
.1 Initial Capital Accounts. Each Member's initial Capital Account
shall be set forth in Exhibit B.
.2 No Other Contributions. Except as required by this
Article 4, neither Member shall have any obligation to make any
contribution to the Company or to advance any funds thereto.
.3 No Interest Payable. No Member shall receive any interest
on its contributions to the capital of the Company.
.4 No Withdrawals. Except as expressly set forth in this Agreement
(a) the capital of the Company may not be withdrawn, (b) no Member shall
demand or receive a return of any portion of its capital account or any
property of the Company, and (c) no Member shall be permitted to withdraw from
the Company without the consent of all of the Members.
.5 Additional Capital Contributions.
(a) If after the date hereof, the Regular Managing Member believes
that Operating Cash Flow (together with any reserves held for such purposes)
is insufficient to timely pay budgeted operating and capital expenses of the
Company pursuant to the approved Annual Operating Budget or the Annual Capital
Budget, as the case may be, the Regular Managing Member shall give each Member
a notice (a "Cash Needs Notice") specifying in reasonable detail (1) the
amount and purpose of any such required capital, (2) subject to Subsection
4.5(c), the date on which such capital is required, and (3) the amount of each
Member's pro rata share of such additional required capital in accordance with
its Percentage Interest (the "Member's Requested Amount"), and (4) the
reasons, to the extent ascertainable, that Operating Cash Flow (together with
any reserves held for such purposes) is insufficient to meet timely the
obligations or purposes for which such additional capital has been requested.
(b) Each Member shall contribute to the Company, as an additional
capital contribution, an amount equal to the applicable Member's Requested
Amount no later than the date (the "Financial Need Date") specified in the
Cash Needs Notice, which date shall not be earlier than ten (10) days after
the date of receipt of the Cash Needs Notice. A contribution to the Company
made by a Member pursuant to this Subsection 4.5(b) is referred to herein as
an "Additional Capital Contribution." If a Member fails or refuses to make a
capital contribution called for under this Section 4.5, the exclusive remedy
of the Company and the other Member shall be as described in Subsections (d)
and (e) of this Section 4.5.
(c) Notwithstanding the provisions of Subsection 4.5(b), if the
funds specified in the Cash Needs Notice are requested to pay for the costs
incurred by the Company arising out of an emergency that in the good faith
determination of the Regular Managing Member, threatens the preservation of
all or any material part of any Property or the health or safety of any Person
(an "Emergency), the Financial Need Date shall be seven (7) days after the
date of the Cash Needs Notice; provided that if an Emergency shall exist and a
Member (a "Borrowing Member") shall fail to advance to the Company the
applicable Member's Requested Amount on or before the Financial Need Date,
such amount may be advanced directly to the Company by the other Member on the
Financial Needs Date and treated as a loan by the Member making such advance
to the Borrowing Member (an "Emergency Loan"). Such Emergency Loan shall be
repaid by the Borrowing Member within twenty (20) days after the Financial
Need Date (such twentieth (20th) day following the Financial Need Date, the
"Emergency Loan Repayment Date") together with interest thereon at the rate
described below from the date of such advance to, but not including, the date
of repayment thereof. If made, an Emergency Loan shall bear interest and be
payable upon the terms described in Article 5 and any accrued interest shall
be considered to be part of such Emergency Loan for all purposes. If not
theretofore repaid by the Borrowing Member, the unpaid principal and interest
owing on any Emergency Loan shall be paid out of distributions otherwise
payable to the Borrowing Member under Article 9 and shall not give rise to any
of the remedies set forth in Subsections 4.5(d) and (e).
(d) If a Member (the "Failing Member") fails to contribute an amount
equal to the entire amount required to be contributed by it by the Financial
Need Date and if the other Member (the "Nonfailing Member") has made its
entire contribution, then, the Nonfailing Member may, but need not:
(1) withdraw from the Company its most recent proportionate
contribution made pursuant to this Section 4.5, in which case the Company shall
promptly repay the amount of such withdrawn contribution to the Nonfailing
Member;
(2) make a loan to the Company (a "Special Loan") in an amount
equal to the sum of (x) the contribution that the Failing Member failed to make
pursuant to this Section 4.5, and (y) the contribution made by the Nonfailing
Member, in which case the full contribution made by the Nonfailing Member shall
be deemed instead to be part of the funds advanced in connection with making
such Special Loan. If made, a Special Loan shall bear interest and be payable
upon the terms described in Article 5 and any accrued interest shall be
considered to be part of such Special Loan for all purposes;
(3) after the expiration of the Interests Transfer Lockout
Period, fund the full amount of the capital due from the Failing Member as an
Additional Capital Contribution to the Company on its own behalf, in which case
Percentage Interests shall be adjusted as set forth in Subsection 4.5(e).
(e) If the Nonfailing Member elects to fund the full amount of the
capital required as an Additional Capital Contribution in accordance with
Subsection 4.5(d)(3), then effective from the date of the making of such
contribution, the Percentage Interest of the Failing Member shall be reduced
by an amount (expressed as a percentage and rounded to two decimal places)
equal to the ratio of (A) the amount of the capital contribution that the
Failing Member fails to make, over (B) the aggregate amount of all capital
contributions theretofore made by the Failing Member to the Company (less any
capital withdrawals or distributions pursuant to Article 9). For the purpose
of determining the ratio described in the preceding sentence, the Members
shall be deemed to have made capital contributions in the amount of their
respective Initial Capital Account Balances. If the Failing Member's
Percentage Interest is decreased pursuant to the immediately preceding
sentence, the Nonfailing Member's Percentage Interest shall be simultaneously
increased to an amount equal to 100% less the Failing Member's new Percentage
Interest, as calculated pursuant to the immediately preceding sentence. From
and after each time there is a change in the Percentage Interests of the
Members pursuant to this Subsection 4.5(e), the definition of Percentage
Interests under this Agreement shall automatically be changed, and each
Percentage Interest allocation that is referred to in this Agreement shall be
correspondingly changed on a percentage point for percentage point basis even
if the term "Percentage Interests" is not used in the provision in which such
allocation is referenced, including Section 9.2.
.6 Effect of Change of Percentage Interest. If the Percentage Interests of
the Members are changed pursuant to the terms of this Agreement during any
Fiscal Year, the amounts of all items to be credited, charged or distributed
(including pursuant to Sections 9.2 and 13.5) to such Members for such entire
Fiscal Year in accordance with their respective Percentage Interests in the
Company, shall be allocated between (a) the portion of such Fiscal Year that
precedes the date of such change (and if there shall have been a prior change
in such Fiscal Year, which commences on the date of such prior change) and (b)
the portion of such Fiscal Year that occurs on and after the date of such
change (and if there shall be a subsequent change in such Fiscal Year, that
precedes the date of such subsequent change), in proportion to the number of
days in each such portion, and the amounts of the items so allocated to each
such portion shall be credited, charged or distributed to such Members in
proportion to their respective Percentage Interests in the Company during each
such portion of the Fiscal Year in question.
.7 Financing. The Members hereby authorize the Company to borrow
up to $120,000,000 from the Initial Lender (the "Initial Mortgage Loan").
.8 Adjustments in Interests Generally. The Members each hereby
acknowledge that because of the difficulty in calculating the damage that may
result from (a) failure of a Member to make an Additional Capital Contribution
when required, and (b) failure to repay a Special Loan together with all
interest thereon when due, the agreements set forth in this Article 4
permitting reductions of a Member's Percentage Interest as a result of such
failures, and the basis of calculations for such reductions, have been openly
and freely negotiated, and have been agreed to, as fair and reasonable
liquidated damages by the Members as parties who are (a) sophisticated in
business, real estate and finance, and (b) advised by experienced legal
counsel.
ARTICLE 5.
LOANS BY MEMBER
.1 Loans. Neither Member shall be obligated to lend any money to the
Company and the Committee may not require such a loan to be made. Except for
Special Loans and Emergency Loans made pursuant to Section 4.5 and the Initial
Mortgage Loan described in Section 4.9, the Company shall not borrow any money
(including any money borrowed pursuant to the Mortgage Loan) without the
approval of the Committee pursuant to Article 6. No Emergency Loan or Special
Loan shall be considered a capital contribution of any Member making such a
loan and no such loan shall increase the Capital Account or Percentage
Interest of such Member or entitle it to any increase in its share of the
distributions of the Company. Each Special Loan or Emergency Loan made by
either Member to the Company shall be an obligation of the Company, provided
that (a) neither Member shall be personally obligated to repay the Special
Loan or Emergency Loan or to make any contribution to the capital of the
Company to enable the Company to repay the Special Loan or Emergency Loan and
(b) the Special Loan or Emergency Loan shall be payable or collectible only
out of the assets of the Company. All Special Loans and Emergency Loans made
pursuant to Section 4.5 shall bear interest at the rate of 5% per annum above
the "prime rate" or "reference rate" announced by Citibank N.A. (the "Prime
Rate") from time to time while such Special Loans or Emergency Loans are
outstanding, or the highest rate permitted by applicable law, whichever is
less. If Citibank N.A. ceases to announce the Prime Rate, the Members shall
reasonably determine a substitute method for determining the Prime Rate.
.2 Payment of Special Loans and Emergency Loans. Operating Cash Flow and
Extraordinary Cash Flow shall be applied to the payment of Emergency Loans and
Special Loans as set forth in Section 9.2. If at any time Special Loans shall
be outstanding, and if the aggregate balances, including accrued interest, of
such outstanding Special Loans made by the respective Members shall not be in
the proportion of the respective Percentage Interests of the Members, then
payment shall be made only upon the Special Loan of the Member whose loan
balance, including accrued interest, is disproportionately high, until the
balances (including interest) payable on the respective Member's Special Loans
by both Members shall be in the ratio of the respective Percentage Interests
of the Members. If at any time Emergency Loans shall be outstanding, and if
the aggregate balances, including accrued interest, of such outstanding
Emergency Loans made by the respective Members shall not be in the ratio of
the respective Percentage Interests of the Members, then payment shall be made
only upon the Emergency Loan of the Member whose loan balance, including
accrued interest, is disproportionately high, until the balance (including
interest) payable on the respective Member's Emergency Loans by both Members
shall be in the ratio of the respective Percentage Interests of the Members.
When the amounts of the Special Loan and/or Emergency Loan balances (including
interest), as the case may be, of the respective Members are in the ratio of
the Percentage Interests of the respective Members, all payments of interest
on and repayments of the principal of such Special Loans or Emergency Loans
shall be pro rata in accordance with the remaining balance (including
interest) of each of the Special Loans or Emergency Loans.
ARTICLE 6.
MANAGEMENT OF THE COMPANY
.1 Regular Managing Member.
(a) Subject to the other provisions of this Article 6, the
management of the Company shall be vested in SLG as Regular Managing Member,
which shall be responsible for carrying out the day-to-day operations of the
Company. Except for situations in which the approval of the Members or the
Committee is required by this Agreement or by other nonwaivable provisions of
applicable law, the Regular Managing Member shall have full authority, power
and discretion to manage and control the business, affairs and properties of
the Company, to make all decisions regarding those matters and to perform any
and all other acts or activities customary or incident to the management of
the Company's business. No Member other than the Regular Managing Member shall
be an agent of the Company for the purpose of its business or have the
authority to bind the Company by such Member's acts, except to the extent that
authority has been expressly delegated in writing to such Member by the
Regular Managing Member.
(b) The Regular Managing Member shall be entitled to hold office
until its resignation or removal. Upon the Regular Managing Member's
resignation or removal, a replacement Regular Managing Member shall be
appointed by a vote of the Majority in Interest of the Company. The Regular
Managing Member, and each replacement Regular Managing Member appointed
hereunder, shall at all times be a Member owning a percentage interest in both
the capital and profits of the Company equal to at least thirty-five percent
(35%).
(c) Prudential shall have the right to remove SLG as Regular
Managing Member for cause (as defined below) by delivering to SLG a written
notification ("Removal Notice") of removal and stating the cause for that
action. Prudential shall act as Regular Managing Member on behalf of the
Company after it has removed SLG as Regular Managing Member. The grounds for
removal "for cause" shall mean one or more of the following:
(1) any willful and/or material misconduct or material
breach by SLG in the discharge of its duties and obligations as Regular
Managing Member;
(2) any fraud, gross negligence or willful misconduct in the
performance by SLG of its obligations or covenants under this Agreement or
under any provision of applicable law that Prudential determines in its
reasonable discretion is material;
(3) any material breach by the Company of its obligations to
any lender, including the Initial Lender, resulting from the willful misconduct
or material breach by SLG as described in Subsection 6.1(c)(1) that causes a
material default under the Initial Mortgage Loan documents, the Mortgage Loan
documents or any other loan document;
(4) the termination of the Initial Management Agreement
following the occurrence of the events described in Subsections (c) (as it
applies to the Initial Manager), (d) (as it applies to the Initial Manager),
(f) as it applies to the Initial Manager), (g), (h) or (i) of Section 10.1 of
the Initial Management Agreement, or the resignation of the Initial Manager;
and
(5) if by operation of Subsection 4.5(e), SLG's Percentage
Interest shall be reduced to thirty five percent (35%) or less.
(d) The Regular Managing Member shall conduct the activities of the
Company so as to qualify the Company as a "real estate operating company"
("REOC") within the meaning of 29 C.F.R. ss. 2510.3-101 (the "Plan Assets
Regulation"). The "annual valuation period" of the Company for purposes of
qualifying as a REOC under the Plan Assets Regulation shall be the ninety (90)
day period commencing on each Anniversary Date (as defined below) unless the
Company pre-specifies an earlier annual valuation period in accordance with
the Plan Assets Regulation. "Anniversary Date" means each anniversary of the
Company's first investment other than a short-term investment pending
long-term commitment.
.2 Duties and Obligations of the Manager.
(a) The Regular Managing Member shall take all actions necessary or
appropriate (1) for the continuation of the Company's valid existence as a
limited liability company under the laws of the State of Delaware and of each
other jurisdiction in which such existence is necessary to enable the Company
to conduct the business in which it is engaged, and (2) for the accomplishment
of the Company's purposes.
(b) The Regular Managing Member shall devote to the Company such
time as may be necessary for the proper performance of all of its duties under
this Agreement, but the Regular Managing Member shall not be required to
devote full time to the performance of such duties and may have other business
interests or engage in other business activities. Neither the Company nor any
Member shall have any right, by virtue of this Agreement, to share or
participate in such other investments or activities of the Regular Managing
Member. The Regular Managing Member shall not incur any liability to the
Company or to any Member as a result solely of engaging in any other business
or venture.
(c) Notwithstanding any contrary provision of this Agreement, the
Regular Managing Member shall not be obligated to perform any action as
Regular Managing Member of the Company to the extent such action requires
funding from the Company and such funds have not been provided subsequent to
the issuance of a Cash Needs Notice pursuant to Section 4.5.
.3 Restrictions on Authority of the Manager.
(a) Notwithstanding anything herein to the contrary, the Regular
Managing Member shall have no authority to make any Major Decision without the
prior written consent of the Committee as provided in Section 6.4. A "Major
Decision" means any decision to do or perform the following:
(1) to approve the Annual Capital Budget and the Annual
Operating Budget or any modifications thereto, as described in Section 6.5;
(2) to cause the Company to acquire any additional material
asset or an interest therein (other than furniture, fixtures and equipment
acquired in the ordinary course of business or assets acquired pursuant to the
then current Annual Operating Budget or Annual Capital Budget, as
appropriate);
(3) subject to Section 10.5, to cause a material portion of the
Property to be sold or abandoned or to market the Property;
(4) to cause the Company to incur debt financing secured by a
lien on the Property or any other material asset of the Company (other than
the Initial Mortgage Loan or equipment leases and other arrangements of a
similar nature expressly provided for in the Annual Operating Budget);
(5) to borrow funds in the name of the Company or the Members;
(6) to cause the Company to refinance any loan obtained by the
Company pursuant to the foregoing Subsections 6.3(a)(4) or (5);
(7) to cause the Company to extend credit, make loans or become
a surety, guarantor or accommodation endorser for any Person (except as
otherwise permitted in connection with any Special Loans or Emergency Loans);
(8) to approve the Annual Leasing Plan;
(9) subject to the provisions of Subsection 6.3(b), to terminate
the Initial Management Agreement or any services provided pursuant to the
Initial Management Agreement, to cause the Company to enter into one or more
substitute management agreements with a substitute property manager from time
to time and to exercise any of the Company's rights to terminate any such
substitute management agreement or any services provided pursuant to any
management agreement from time to time;
(10) to the extent permitted by the Initial Mortgage Loan
documentation, determine whether and to what extent the Property should be
repaired or restored in the event of any loss by fire or other casualty or in
the event of any loss of any portion of the Property by action in condemnation
or eminent domain;
(11) to exercise any other rights and prerogatives that are
allocated or provided to the Committee under the terms of this Agreement;
(12) to alter the frequency of distributions of Operating Cash
Flow as provided for in Article 9;
(13) to take any "Insolvency Action";
(14) to sell or issue an equity interest in the Company or,
except as permitted by operation of Article 10, to admit one or more new
members in the Company;
(15) to enter into any agreement that creates recourse liability
to all Members;
(16) to make expenditures in excess of amounts set forth in the
approved Annual Operating Budget or the approved Annual Capital Budget, as the
case may be;
(17) to invest Company funds in any investment other than a
Permitted Investment;
(18) to amend this Agreement or the Certificate of Formation;
(19) to authorize any agreement, transaction or action on behalf
of the Company that is unrelated to its purpose; or
(20) to authorize or effect a merger or consolidation of the
Company with or into one or more other entities.
(b) Notwithstanding any contrary provision of this Agreement, all
decisions regarding the termination of any contractor, vendor or service
provider (including the Initial Manager or any other property manager or
leasing agent) that is an Affiliate of or otherwise related to any Member
shall be made by the Committee members appointed or designated by the
unaffiliated Member.
.4 Executive Committee.
(a) Except as otherwise provided herein, all Major Decisions shall be
made by a Committee (the "Committee"), which, subject to Subsection 6.4(d),
shall at all times consist of four (4) individuals, two (2) of whom shall be
appointed by Prudential, and two (2) by SLG. Each Member may appoint an
alternate for each individual appointed by it to the Committee, and each such
alternate individual may act as if he or she is a member of the Committee at
any time the member for whom the alternate is appointed is absent or unable to
serve. Each Member shall have the power to remove any individual or alternate
individual of the Committee appointed by it and simultaneously to appoint a
replacement individual or alternate individual by delivering written notice of
such removal and appointment to the Company and to the other Member. Vacancies
on the Committee shall be filled by the Member that appointed the individual
previously holding the position that is then vacant.
(b) Each Committee member shall be entitled to cast one (1) vote with
respect to any decision made by the Committee.
(c) The Committee shall meet (1) at least once each calendar quarter
(unless such meeting shall be waived by all Committee members) or (2) on the
call of any two (2) individuals on the Committee upon five (5) Business Days'
notice to all Committee members by telephone, electronic mail, telecopy or
telegraph, at the location and particular time set by the Regular Managing
Member or such other place and time as may be, from time to time, agreed upon
by both Members. Meetings may also be held by telephone with the consent of
all members of the Committee. An agenda for each meeting shall be prepared in
advance by the members of the Committee in consultation with each other. The
Committee shall cause written minutes to be prepared of all meetings held and
actions taken by the Committee and shall deliver a copy thereof to each member
of the Committee within ten (10) days after the date of the meeting.
(d) Notwithstanding anything in this Agreement to the contrary, if by
operation of Subsection 4.5(e) any Member's Percentage Interest is reduced to
an amount greater than three percent (3%) and up to and including twenty-five
percent (25%), such Member shall only be entitled to appoint one (1)
individual to the Committee and the Committee shall then consist of three (3)
individuals. If by operation of Subsection 4.5(e), any Member's Percentage
Interest is reduced to three percent (3%) or less, such Member shall not be
entitled to appoint any individual to the Committee and the Committee shall
then consist of two (2) individuals both appointed by the other Member. If by
operation of Subsection 4.5(e), such Member's Percentage Interest is
subsequently increased to an amount greater than three percent (3%) but not
greater than twenty five percent (25%), then such Member shall have the right
to appoint one (1) individual to the Committee and the Committee shall consist
of three (3) individuals. If by operation of Subsection 4.5(e), such Member's
Percentage Interest is subsequently increased to an amount greater than twenty
five percent (25%), then such Member shall have the right to appoint two (2)
individuals to the Committee and the Committee shall consist of four (4)
individuals.
.5 Annual Budgets.
(a) On or before the first day of the second (2nd) calendar month
immediately preceding the commencement of each Fiscal Year, the Regular
Managing Member shall cause to be prepared for the Committee's review a
preliminary annual capital budget and a preliminary annual operating budget.
On or before the fifteenth (15th) day of the month immediately preceding the
commencement of each Fiscal Year of the Company, the Committee shall adopt (1)
an annual capital budget (an "Annual Capital Budget") for such year, in such
form as the Committee shall have approved, setting forth the Committee's
estimates reasonably itemized of all Capital Expenditures and receipts from
capital transactions of the Company relating to the Property, and (2) an
annual operating budget (an "Annual Operating Budget"), for such year, in such
form as the Committee shall have approved, setting forth the Committee's
reasonably itemized estimates of all income and expenses of the Company for
such year and establishing reserves and working capital for the Company.
(b) If the Committee shall fail to adopt an entire Annual Capital
Budget for any Fiscal Year, then the Committee shall only adopt as the Annual
Capital Budget the items of the proposed annual capital budget for such Fiscal
Year as are (1) required by law, (2) required pursuant to the provisions of
any lease entered into by or otherwise binding the Company, as lessor, (3)
required by the Initial Mortgage Loan documents or the Mortgage Loan
documents, as applicable, or, (4) otherwise as are acceptable to the
Committee. If the Committee shall fail to adopt an entire Annual Operating
Budget for any Fiscal Year, then the Annual Operating Budget for such Fiscal
Year shall be the Annual Operating Budget adopted for the prior Fiscal Year
with each line item increased by a percentage equal to the percentage increase
in the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City
Average for All Items, 1982-84=100.
.6 Bank Accounts. The Company will maintain separate bank accounts in such
banks as the Committee may designate exclusively for the deposit and
disbursement of all funds of the Company. All funds of the Company shall be
promptly deposited in such accounts. The Committee shall authorize signatories
for such accounts from time to time.
.7 Reimbursement for Costs and Expenses. The Committee by unanimous vote,
will fix the amounts, if any, by which the Company will reimburse each Member
for costs and expenses incurred by such Member on behalf and for the benefit of
the Company; provided, however, that no overhead or general administrative
expenses of anyone other than the Company itself shall be allocated to the
operation of the Company, and no salaries, fees, commissions or other
compensations shall be paid by the Company to any Affiliate of any Member or
to any partner, officer, shareholder, agent, contractor, officer or employee
of either Member or its Affiliates for any services rendered to the Company
except as may be expressly provided herein or in the Initial Management
Agreement or by other written agreement approved by the Committee.
.8 Fidelity Bonds and Insurance. The Company will obtain fidelity bonds
with reputable surety companies, covering all Persons having access to the
Company's funds, indemnifying the Company against loss resulting from fraud,
theft and dishonest and other wrongful acts of such Persons. The Company shall
carry or cause to be carried on its behalf in companies acceptable to the
Committee all property, liability and workers' compensation insurance as shall
be required under applicable mortgages, leases, agreements, and other
instruments and statutes or as may be required by the Committee, but never in
amounts less than those agreed upon by the Committee.
.9 Accounting Management Services.
(a) Subject to Subsection 6.9(d), the Regular Managing Member shall
perform or cause to be performed the following services from time to time and
for the benefit of the Company:
(1) assemble and provide to the Accountants such information
relating to the operation and ownership of the Property as is necessary and
appropriate to enable the Accountants to audit annual financial statements and
to prepare all required federal, state and local tax returns;
(2) prepare the periodic reports and budgets described in
Section 6.5, and Subsections 7.1(a), 7.1(b) and as may be required by the
Initial Mortgage Loan or the Mortgage Loan, as applicable, and submit the same
to the Committee for review and approval; provided, however, that nothing
herein shall change or affect the limitations on the authority of the Regular
Managing Member as set forth in this Agreement;
(3) assist in preparing the annual financial statements
described in Subsection 7.1(b) and as otherwise may be required by the Initial
Mortgage Loan or the Mortgage Loan, as applicable, and submit drafts of the
same to the Members for review and approval and to the Accountants for audit;
provided, however, that nothing herein shall change or affect the limitations
on the authority of the Regular Managing Member as set forth in this
Agreement; and
(4) obtain bids for insurance authorized or required by the
Committee, monitor such insurance to assure that such insurance remains in
full force and effect, and notify the Company, and its Members not less than
thirty (30) days prior to expiration or termination of such insurance so as to
permit timely renewal or replacement thereof. The Regular Managing Member
shall determine the cost of having such insurance provided as part of
Prudential's blanket insurance coverage whenever obtaining bids for insurance.
(b) Notwithstanding the terms of Subsection 6.9(a), the Regular
Managing Member shall not have the right or authority to do or perform any of
the following:
(1) direct the Accountants regarding the adoption and
implementation of tax or accounting principles, assumptions or elections; or
(2) without the approval of the Committee, perform any action or
make any decision on behalf of the Company that may be performed or decided
only by the Committee pursuant to this Article 6.
(c) The Regular Managing Member shall not be entitled to any
compensation for the services to be rendered by it to the Company pursuant to
Subsection 6.9(a).
(d) If Prudential should reasonably determine that the Regular
Managing Member's performance of its duties under Subsection 6.9(a) is
deficient, Prudential shall notify the Regular Managing Member of its desire
to have such duties performed by independent contractors or consultants in a
written notice specifying in reasonable detail such performance deficiencies.
If the Regular Managing Member fails, in Prudential's reasonable judgment, to
rectify the deficiencies detailed in such notice within thirty (30) days after
the notice is made, Prudential shall have the sole right (but not the
obligation) and authority on behalf of the Company to terminate the authority
and obligations of the Regular Managing Member under Subsection 6.9(a). In the
event of such a termination, the Regular Managing Member shall cause
independent contractors or consultants to perform the obligations of the
Regular Managing Member set forth in Subsection 6.9(a) and such independent
contractors or consultants shall be entitled to a fee, as determined by the
Regular Managing Member, to be paid by the Company.
.10 Property Management and Leasing Services. Simultaneously
with the execution of this Agreement, the Company shall enter into a
property management and leasing agreement (the "Initial Management
Agreement") with S. L. Green Management Corp. (the "Initial Manager"),
an Affiliate of SLG. The Members approve the terms of the Management
Agreement, which is annexed hereto as Exhibit C.
.11 Indemnification. Neither Member shall be liable to the Company or
to the other Member for any act performed or omitted to be performed by the
Member in relation to Company business, unless the Member's course of conduct
was in breach of this Agreement or constituted fraud, unauthorized acts, bad
faith, willful misconduct or gross negligence. A Member shall defend and
indemnify the Company and the other Member against, and hold it and them
harmless from, any loss, damage, claim, judgment, cost, expense or liability,
including reasonable attorneys' fees, incurred or sustained by the Company or
the other Member or either of them by reason of the indemnifying Member's
fraud, bad faith, willful misconduct, gross negligence, unauthorized acts or
breach of this Agreement. The Company shall defend and indemnify each Member
against, and hold it and them harmless from, any loss, damage, claim, judgment,
cost, expense or liability, including reasonable attorneys' fees, incurred or
sustained by the Member by reason of any act performed by it on behalf of the
Company or in furtherance of the Company's interests other than by fraud, bad
faith, willful misconduct, gross negligence, unauthorized acts or breach of
this Agreement. The Company shall defend and indemnify any Person executing
the original Certificate of Formation against, and hold such person harmless
from, any loss, damage, claim, judgment, cost, expense or liability, including
reasonable attorneys' fees, incurred or sustained by such person by reason of
having prepared or filed the original Certificate of Formation or his status
as the organizer of the Company, except to the extent of such Person's fraud,
bad faith, willful misconduct or gross negligence.
.12 Annual Leasing Plan. On or before the first day of the second (2nd)
calendar month immediately proceeding the commencement of each Fiscal Year the
Regular Managing Member shall cause to be prepared for the Committee's review
a preliminary annual leasing plan (an "Annual Leasing Plan") for such year, in
such form as the Committee shall have approved, setting forth a plan for
leasing of the Improvements. On or before the fifteenth (15th) day of the
month immediately preceding the commencement of each Fiscal Year of the
Company, the Committee shall adopt a final Annual Leasing Plan for such year,
in such form as the Committee shall have approved. The Annual Leasing Plan
shall also (a) contain leasing guidelines, including proforma rents, leasing
commissions, free rents, options, tenant improvements and tenant improvement
allowances, (b) contain a stacking plan, a schedule of space that is vacant or
that may be coming vacant in the coming Fiscal Year, and (c) identify the
location and amount of such vacant space. The marketing, negotiation and
leasing of the Improvements by the Regular Managing Member or by the Initial
Manager, pursuant to the Initial Management Agreement, shall at all times be
governed by the terms of the then current Annual Leasing Plan.
.13 Guaranty Reimbursement Obligations. The Company shall reimburse
Prudential with respect to the Guaranty Reimbursement Obligations promptly
after each such payment in respect thereof is due from the Company to
Prudential in accordance with the provisions of the Limited Guaranty Agreement.
.14 Facade Remediation.
(a) Notwithstanding any provision of this Agreement or the Initial
Management Agreement to the contrary, to the extent not accomplished prior to
the date hereof, the Members shall jointly (1) determine the scope and extent
of all facade remediation work, if any, necessary so that the Property
complies with so-called "Local Law 10" and "Local Law 11" of The City of New
York, (2) determine a plan of action with respect to the general scope of
facade remediation, including a budget for effectuating such plan, (3) hire
the architect, project engineer and contractors to effectuate such plan
pursuant to agreements mutually satisfactory to the Members, and (4) approve
the plans and specifications, drawings and all change orders necessary to
accomplish such work. Prudential shall be responsible for the costs of all
such facade remediation work in accordance with the provisions of the approved
contracts.
(b) If the Members are not able to agree as to any matter referred to
in Subsection 6.14(a), either Member may submit the issue to arbitration in
New York, New York in accordance with the Commercial Arbitration Rules or
other appropriate rules of the American Arbitration Association ("AAA"). The
laws of the State of New York shall be deemed to apply and control in such
arbitration. If the AAA is not then in existence or does not desire to act,
then either party may apply to a New York court having jurisdiction for the
appointment of an arbitrator to hear the parties and determine the matter.
Provided the rules and regulations of the AAA or the court, as the case may
be, so permit, the AAA or such court shall select a single arbitrator within
five (5) Business Days after such submissions or application, the arbitration
shall commence five (5) Business Days thereafter and, if necessary, shall be
conducted for at least seven (7) hours on each Business Day thereafter until
completion. Each Member shall have no more than a total of seven (7) hours to
present its case and to cross-examine or interrogate persons supplying
information or documentation on behalf of the other party, and the arbitrator
shall render a decision (including an award of costs to the prevailing Member)
within ten (10) days after conclusion of the arbitration, which will be final
and conclusive upon both parties. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
parties submit to the in personam jurisdiction and venue of the United States
District Court for the Southern District of New York and the Supreme Court of
the State of New York, New York County for the purpose of confirming any such
award and entering judgment thereon.
ARTICLE 7.
BOOKS AND RECORDS, AUDITS, TAXES, ETC.
.1 Books; Statements.
(a) In addition to the establishment and maintenance of Capital
Accounts pursuant to Section 7.9, the Company shall keep such other books and
records as the Committee shall determine. The books and records shall be
prepared in accordance with generally accepted accounting principles
consistently applied except as may be necessary to reflect matters determined
pursuant to Section 7.6. Except where specifically stated to the contrary, the
Committee shall determine the methods to be used in the preparation of
financial statements.
(b) After the date hereof:
(1) the Company shall prepare or cause to be prepared a
statement setting forth the Operating Cash Flow for such period of time as the
Committee shall determine, but not less often than monthly, and the Company
shall furnish a copy of a preliminary cash flow statement to each Member
within fifteen (15) days after the end of such period to be followed by a
final cash flow statement within twenty (20) days after the end of such
period;
(2) no later than the twenty fifth (25th) day of each then
current month during the term of this Agreement, the Company shall prepare and
submit or cause to be prepared and submitted to each Member, an accrual basis
balance sheet dated as of the end of the current month together with an
accrual and cash basis Profit or Loss statement for the preceding calendar
month with a cumulative calendar year accrual and cash basis Profit or Loss
statement to such date, and a statement of change in each Member's Capital
Account for the current month and year to such date; and
(3) as soon as practicable after the end of each Fiscal Year of
the Company, a general accounting and audit shall be taken and made by the
Accountants, covering the assets, properties, liabilities and net worth of the
Company, and its dealings, transactions and operations during such Fiscal Year
(the "Annual Audit"), and all matters and things customarily included in such
accountings and audits, and the Company shall have a full, detailed certified
statement furnished to each Member within seventy five (75) days after the end
of such Fiscal Year, showing on an accrual basis the assets, liabilities,
properties, net worth, profits, losses, net income, unrecovered Initial
Capital Accounts and Additional Capital Contributions made by Prudential and
SLG, Operating Cash Flow and Extraordinary Cash Flow, accrued, paid and due to
Prudential and/or SLG, as the case may be, changes in the financial condition
of the Company for such Fiscal Year and each Member's capital in the Company,
and a full and complete report of the audit scope and audit findings in the
form of a management audit report with an internal control memorandum. If the
Initial Accountants have not delivered the Annual Audit within thirty one (31)
days after the end of any Fiscal Year, then, at Prudential's option, the
Initial Accountants shall no longer serve as the Accountants and Price
Waterhouse Coopers or such other firm of independent certified public
accountants as shall be selected by Prudential and approved by the Committee
shall be designated the Accountants.
(c) The Company shall cause (1) the individual who prepared or
oversaw the preparation of the financial statements referred to in Subsections
7.1(b)(1) and 7.1(b)(2) or (2) the Accountants, as the case may be, to certify
to each of the Members, in a writing delivered simultaneously with the
delivery to the Members of the financial statements referred to in Subsections
7.1(b)(1), 7.1(b)(2) or 7.1(b)(3), that such financial statements, to the
extent that the calculations contained therein are to be made pursuant to the
provisions of Article 9, are in conformity with the provisions of Article 9.
.2 Where Maintained. The books, accounts and records of the Company shall
be maintained at all times at the Company's principal office, the Initial
Manager's principal office or such other place as may be approved by the
Committee. For so long as the Regular Managing Member shall be obligated to
provide the services to the Company described in Subsection 6.9(a), the
Regular Managing Member shall keep and maintain such books, accounts and
records.
.3 Audits. Either Member may, at its option and at its own expense,
conduct internal audits of the books, records and accounts of the Company.
Audits may be on either a continuous or a periodic basis or both and may be
conducted by employees of either Member, or an Affiliate of either Member, or
by independent auditors retained by the Company or by either Member.
.4 Objections to Statements. Each Member shall have the right to object to
the statements described in Subsection 7.1(b) by giving notice in writing to
the other Member within forty five (45) days after such statement is received
by such Member by indicating in reasonable detail the objections of such Member
and the basis for such objections. If either Member shall fail to give such
notice within said forty five (45) day period, such statement and the contents
thereof shall, in the absence of fraud or willful misconduct by the individual
or the Accountants certifying the statements, be deemed to be conclusive and
binding upon such party so failing to give such written notice, subject to the
audit provided for in Subsection 7.1(b)(3). Objections to any statement and
any disputes concerning the findings of, and questions raised as the result
of, audits of the Company's books shall be settled by the Committee.
.5 Tax Returns. The Company shall be treated and shall file its tax
returns as a partnership for federal, state and local income tax and other tax
purposes. The Company shall cause to be prepared, and signed by the
Accountants in their capacity as "income tax return preparers" (as defined in
Section 7701(a)(36) of the Code), on an accrual basis, all federal, state and
local partnership, business and all other tax returns required to be filed.
The Company shall submit the returns to each Member for review and approval no
later than thirty (30) days prior to the due date of the returns, but in no
event later than March 15th of each year. Each Member shall notify the other
Member upon receipt of any notice of tax examination, tax deficiency or tax
adjustment of the Company by federal, state or local authorities.
.6 Tax Matters Partner. The Regular Managing Member is hereby designated
as the tax matters partner ("TMP"), as defined in the Code, with respect to
operations conducted by the Company. The TMP shall comply with the
requirements of Section 6221 through 6233 of the Code, but decisions required
to be made by the TMP thereunder shall only be made with the Committee's
approval. All decisions required to be made by the TMP thereunder shall be
made in accordance with generally accepted accounting principles.
.7 Tax Policy. Except as provided in Sections 7.6 and 9.6, the
Company shall make any and all tax, accounting and reporting elections, and
shall adopt such procedures as the Committee may determine.
.8 Section 754 Election. The Company shall make and file a timely
election under Section 754 of the Code (and a corresponding election under
applicable state or local law) to be effective for its first taxable year.
.9 Capital Accounts.
(a) There shall be established on the books of the Company a single
capital account (a "Capital Account") for each Member. The opening balance of
each Member's Capital Account shall be such Member's Initial Capital Account
as described in Article 4.
(b) The Capital Account of each Member (regardless of the time or
manner in which such Member's interest was acquired) shall be maintained in
accordance with Section 704(b) of the Code (together with Section
1.704-1(b)(2)(iv) of the Treasury Regulations). Adjustments shall be made to
the Capital Accounts for distributions and allocations as required by the
rules of Section 704(b) of the Code and the Treasury Regulations thereunder.
In general, a Capital Account shall be:
(1) increased by (i) the amount of money contributed by the
Member to the Company; (ii) the fair market value of property contributed by
the Member to the Company (net of liabilities secured by such contributed
property that the Company is considered to assume or take subject to under
Section 752 of the Code); and (iii) allocations to the Member under Section
9.5 of Profits and under Section 9.4 of items in the nature of income or gain;
(2) decreased by (i) the amount of money distributed to the
Member by the Company; (ii) the fair market value of property distributed to
the Member by the Company (net of liabilities secured by such distributed
property that such Member is considered to assume or take subject to under
Section 752 of the Code); (iii) allocations to the Member under Section 9.5 of
Losses and under Section 9.4 of items in the nature of deduction or loss;
(3) except as provided in Treasury Regulations Section 1.704-1
(b)(2)(iv)(m), computed without regard to any election under Section 754 of
the Code that may be made by the Company.
If there is a Transfer of all or a part of an interest in the Company by a
Member, the Capital Account of the transferor that is attributable to the
Transferred interest shall carry over to the transferee of such Member.
.10 Special Requirements. To the extent applicable to any Member
because such Member is, or is to any extent owned by, a resident or
non-resident alien or a foreign corporation, trust or partnership, such
Member agrees:
(a) to make when due all filings required under the Code, the
International Investment and Trade in Services Survey Act of 1976, as amended,
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or any
other federal, state or local law or governmental enactment requiring
disclosure by such Member;
(b) to take any action necessary to prevent the Company, the Property
or the other Member from being subject to any lien, charge or liability
(including any liability for failure to satisfy any withholding or filing
obligation), voluntary or involuntary, on account of (1) any law or enactment
referred to in subsection (a) of this Section 7.10, (2) Section 897, Section
1445, Section 1446 or any similar provision of the Code, (3) of any similar
state or local tax law enactment, or (4) as a withholding agent for any
amounts paid or distributed hereunder to such Member;
(c) that notwithstanding anything herein to the contrary, the Company
shall be entitled, upon advice of counsel, to withhold any sums required under
the Code and necessary to prevent any liability or contingent liability
described in Subsection (b) of this Section 7.10 of the Company or the other
Member, but such withheld amounts shall be deemed to have been paid to such
Member; and
(d) to indemnify and hold harmless the Company and the other Member
from and against any and all liability, damage, cost or expense (including
attorneys' fees) incurred thereby in connection with the matters described in
this Section 7.10, or any default by such Member in its obligations under this
Section 7.10.
ARTICLE 8.
FISCAL YEAR
.1 Calendar Year. The "Fiscal Year" of the Company shall be the
calendar year, unless (subject to obtaining consent of the Internal Revenue
Service) the Committee shall hereafter in writing agree otherwise.
ARTICLE 9.
DISTRIBUTIONS AND ALLOCATIONS
.1 Certain Definitions. The following terms shall have the following
meanings when used herein:
(a) "Operating Cash Flow": The income of the Company for the fiscal
period in question, including rental receipts, collection of receivables and
other cash receipts actually received during such period but excluding any
Extraordinary Cash Flow or the Initial Mortgage Loan Surplus.
(b) "Extraordinary Cash Flow": The cash receipts of the Company from
a Major Capital Event (to the extent not used for the reconstruction of all or
any portion of the Property).
(c) "Profit or Loss": For each Accounting Period, the net income or
loss of the Company for such Accounting Period, as the case may be, including
any items of income, gain, loss or deduction that are separately stated for
purposes of Section 702(a) of the Code, as determined in accordance with
federal income tax accounting principles as adjusted by Treasury Regulations
Section 1.704-1(b)(2)(iv), provided that any item of income that is not
subject to federal income taxation and any expenditure described in Section
705(a)(2)(B) of the Code or treated as an expense under Section 705(a)(2)(B)
of the Code pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i)
shall be taken into account; provided further that, if the Book Basis of the
Property is different from its adjusted tax basis for federal income tax
purposes, any income, gain or loss attributable to the taxable disposition of
any Property shall be determined by reference to such Book Basis as adjusted
for Depreciation through the date of disposition; and provided further that
any items specially allocated under Section 9.5 shall not be taken into
account.
(d) "Minimum Gain": The minimum amount of gain that would be
recognized by the Company for federal income tax purposes if the Company
disposed of property subject to nonrecourse liabilities (for which no Member
bears the economic risk of loss pursuant to Treasury Regulations Section
1.752-2) in full satisfaction and for the amount thereof computed; in
accordance with Treasury Regulations Section 1.704-2(d).
(e) "Nonrecourse Deductions": Pursuant to the provisions of Treasury
Regulations Section 1.704-2(c), an amount equal to the excess, if any, of the
net increase in the amount of the Company's Minimum Gain during such year over
the aggregate amount of any distributions during such year of proceeds of a
nonrecourse liability that are allocable to an increase in the Company's
Minimum Gain.
(f) "Accounting Period": Any Fiscal Year of the Company, any period
ending with a variation of the Members' Percentage Interests, and any other
period for which separate accounting is appropriate.
(g) "Partner Nonrecourse Debt Minimum Gain": At any time, the amount
of gain that would be recognized for federal income tax purposes with respect
to each nonrecourse liability with respect to which a Member or a related
Person bears the economic risk of loss under Treasury Regulations Section
1.752-2, if the Company disposed of the property securing such liability by
transferring such property in full satisfaction of such liability.
(h) "Depreciation": For each Accounting Period, an amount equal to
the depreciation, amortization, or other recovery deductions allowable with
respect to an asset for such Accounting Period, except that if the Book Basis
of an asset differs from its adjusted basis for federal income tax purposes at
the beginning of such Accounting Period, Depreciation shall be an amount which
bears the same ratio to such beginning Book Basis as the federal income tax
depreciation, amortization, or other cost recovery deduction for such
Accounting Period bears to the beginning adjusted tax basis; provided,
however, that if the adjusted tax basis for federal income tax purposes of an
asset at the beginning of such Accounting Period is zero, Depreciation shall
be determined with reference to such beginning Book Basis using any reasonable
method selected by the Tax Matters Member; and provided further, that if the
"remedial allocation method" under Treasury Regulations Section 1.704-3(d) is
elected to eliminate any variation between the adjusted tax basis and the Book
Basis of an asset, then any Depreciation for that asset will be determined in
accordance with Treasury Regulations Section 1.704-3(d)(2).
.2 Cash Flow Distributions.
(a) Operating Cash Flow. Except as otherwise provided in this Section
9.2, the Company shall distribute Operating Cash Flow for each calendar month
during the term of the Company in which there is Operating Cash Flow by the
end of each such calendar month to the Members in the following order of
priority:
(1) First, to satisfy the Company's then current obligations
under any third party loans, including the Initial Mortgage Loan;
(2) Next, to satisfy the Company's then current operating
expenses pursuant to and subject to the then current Annual Operating Budget;
(3) Next, to Prudential to satisfy the then current Guaranty
Reimbursement Obligations;
(4) Next, to satisfy the Company's then current obligations
under any Emergency Loans;
(5) Next, to satisfy the Company's then current obligations
under any Special Loans;
(6) Next, to establish, replenish or increase reserves
established pursuant to the then current Annual Operating Budget and Annual
Capital Budget; and
(7) Lastly, to the Members in accordance with their Percentage
Interests.
(b) Extraordinary Cash Flow. Except as otherwise provided in this
Section 9.2, the Company shall distribute Extraordinary Cash Flow during the
term of the Company within thirty (30) days after the Company's receipt
thereof to the Members in the following order of priority:
(1) First, to fully satisfy the Company's obligations under any
third party loans, including the Initial Mortgage Loan;
(2) Next, to satisfy any third-party obligations of the Company
resulting from the triggering Major Capital Event;
(3) Next, to satisfy the transaction costs incurred by Company
in connection with the triggering Major Capital Event, including title,
survey, appraisal, recording, escrow, transfer tax and similar costs,
brokerage expense and attorneys' and other professional fees;
(4) Next, to Prudential to satisfy the then current Guaranty
Reimbursement Obligations;
(5) Next, to repay all principal and any accrued and unpaid
interest on any outstanding Emergency Loans;
(6) Next, to repay all principal and any accrued and unpaid
interest on any outstanding Special Loans; and
(7) Lastly, to the Members in accordance with their Percentage
Interests.
(c) Initial Mortgage Loan Proceeds. The Company shall distribute the
proceeds of the Initial Mortgage Loan upon the Company's receipt thereof in
the following order of priority:
(1) First, to pay the consideration due (in an amount equal to
the principal balance of the Existing Mortgage Loan) in respect to the
assignment of the Existing Mortgage Loan (as defined in the Sale Agreement) to
the holder of the Initial Mortgage Loan;
(2) Next, to pay all Shared Mortgage Loan Expenses (as defined
in the Sale Agreement);
(3) Next to pay all other Shared Closing Costs (as defined in
the Sale Agreement); and
(4) Lastly, to the Members in accordance with their Percentage
Interests.
(d) Allocations of Accounting Items - Generally. Items attributable
to an Accounting Period shall be determined as though the books of the Company
were closed as of the end of such Accounting Period.
.3 Distributed Property. Notwithstanding anything to the contrary
contained in the foregoing provisions of Article 9, upon the distribution of
property to a Member, for the purposes of computing Profit or Loss, such
property shall be treated as if it had been sold for its fair market value on
the date of such distribution.
.4 Nonrecourse Deductions; Nonrecourse Liabilities; Minimum Gain
Chargeback; Qualified Income Offset; Corrective Allocations.
(a) Nonrecourse Deductions. Nonrecourse deductions shall be allocated
among the Members in accordance with their Percentage Interests.
(b) Nonrecourse Liabilities. For purposes of determining the Member's
respective shares of nonrecourse liabilities of the Company under Treasury
Regulations Section 1.752-3, each Member's "percentage interest in partnership
profits" shall be equal to such Member's Percentage Interest.
(c) Minimum Gain Chargeback. The allocation contained in this
Subsection 9.4(c) is intended to be a "minimum gain chargeback" as defined in
Treasury Regulations Section 1.704-2(f) on the date hereof and shall be
interpreted in a manner consistent with such regulations. Notwithstanding the
provisions of Section 9.5, if there is a net decrease in the Company's Minimum
Gain for a taxable year then, except to the extent permitted by Treasury
Regulations Section 1.704-2(f)(2), (3), (4) or (5), each Member shall be
allocated items of income and gain for such year (and, if necessary, for
subsequent years) in proportion to, and to the extent of the portion of such
Member's share of the net decrease in the Company's Minimum Gain during such
year.
(d) Qualified Income Offset. The allocation contained in this
Subsection 9.4(d) is intended to be a "qualified income offset" as defined in
Treasury Regulations Section 1.704-1(b)(2)(ii)(d) on the date hereof and shall
be interpreted in a manner consistent with such regulation. Notwithstanding
the provisions of Section 9.5, a Member shall not be allocated Losses or items
of deduction if such allocation would cause or increase a deficit balance in
such Member's Adjusted Capital Account (as defined below) as of the end of the
calendar year to which such allocation relates. Any such Losses or items of
deductions that would have been allocated to such Member but for the preceding
sentence shall, to the extent permitted by this Subsection 9.4(d), be
allocated to the other Member. In addition, if in any taxable year, a Member
unexpectedly receives an adjustment, allocation or distribution described in
Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), then such
Member shall be allocated gross income equal to the "Qualified Income Offset
Amount." The Qualified Income Offset Amount is the amount by which a Member's
Adjusted Capital Account is exceeded by zero. If in any taxable year to which
this Subsection 9.4(d) applies the amount of items of gross income of the
Company is less than the Qualified Income Offset Amounts for all of the
Members to which this Subsection 9.4(d) applies, then each Member to which
this Subsection 9.4(d) applies shall be allocated a pro rata amount of gross
income, and in subsequent taxable years each of such Members shall be
allocated gross income equal to the amount which, when added to the
allocations to such Member pursuant to this Subsection 9.4(d) in prior taxable
years, will equal the Qualified Income Offset Amount applicable to such Member
for such prior taxable year and for such subsequent taxable years. A Member's
"Adjusted Capital Account" shall mean such Member's Capital Account (1)
reduced for items described in Treasury Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) and (2) increased for (i) the amount of
such Member's share of Minimum Gain, (ii) the amount of such Member's Partner
Nonrecourse Debt Minimum Gain and (iii) amounts such Member is obligated to
restore to the Company (if any). For purposes of determining the amount of
expected distributions and expected Capital Account increases, the Book Basis
will be presumed to be the fair market value of Company property.
(e) Partner Nonrecourse Debt Minimum Gain Chargeback. The allocations
contained in this Subsection 9.4(e) are intended to be a chargeback of Partner
Nonrecourse Debt Minimum Gain as provided in Treasury Regulations Section
1.704-2(i)(4) and shall be interpreted in a manner consistent with such
regulations. If there is a net decrease in the Company's Partner Nonrecourse
Debt Minimum Gain then, except as provided in Treasury Regulations Section
1.704-2(i)(4), each Member with a share of such Partner Nonrecourse Debt
Minimum Gain shall be allocated items of income and gain to the extent of such
Member's share of such net decrease (calculated pursuant to the Treasury
Regulations).
(f) Partner Nonrecourse Deductions. Partner nonrecourse deductions
(within the meaning of Treasury Regulations Sections 1.704-2(i)(1) and (2))
shall be allocated as prescribed in Treasury Regulations Section
1.704-2(i)(1).
(g) Corrective Allocations. Any special allocations pursuant to
Subsection 9.4(c), (d) or (e) shall be taken into account for the purpose of
equitably adjusting subsequent allocations so that the net allocations, in the
aggregate, allocated to each Member pursuant to this Article 9, and the
Capital Accounts of each Member, shall as expeditiously as possible and to the
extent possible without violating the constraints set forth in Subsection
9.4(c), (d) or (e), be the same as if no special allocations had been made
under Subsection 9.4(c), (d) or (e).
.5 Allocations of Profits and Losses. After giving effect to the
special allocations set forth in this Agreement,
(a) Profits shall be allocated:
(1) first to the Members in proportion to and to the extent of
the excess, if any, of (i) the cumulative Losses allocated to them pursuant to
the proviso at the end of Subsection 9.5(c), for all prior Accounting Periods,
over (ii) the cumulative Profits allocated pursuant to this Subsection
9.5(a)(1) for all prior Accounting Periods; and
(2) then to the Members in proportion to and to the extent of
the excess, if any, of (i) the cumulative Losses allocated to them pursuant to
Subsection 9.5(b)(3), for all prior Accounting Periods, over (ii) the
cumulative Profits allocated pursuant to this Subsection 9.5(a)(2) for all
prior Accounting Periods; and
(3) thereafter to the Members in proportion to their Percentage
Interests.
(b) Losses shall be allocated:
(1) first to the Members, in proportion to and to the extent of
the excess, if any, of (i) the cumulative Profits allocated to each Member
pursuant to Subsection 9.5(a)(2) for all prior Accounting Periods, over (ii)
the cumulative Losses allocated to such members pursuant to this Subsection
9.5(b)(1);
(2) second to the Members in proportion to and to the extent of
the excess, if any, of (i) the cumulative Profits allocated to each Member
pursuant to Subsection 9.5(a)(1) for all prior Accounting Periods, over (ii)
the cumulative Losses allocated to such Members pursuant to this Subsection
9.5(b)(2); and
(3) the balance, if any, to the Members in proportion to their
Percentage Interests.
(c) The Losses allocated pursuant to Subsection 9.5(b) shall not
exceed the maximum amount of Losses that can be allocated without causing any
Member to have a deficit in its Capital Account at the end of any Accounting
Period. If some but not all of the Members would have a deficit in their
Capital Accounts at the end of an Accounting Period as a result of the
allocation of Losses pursuant to Subsection 9.5(b), the limitation set forth
in this Subsection 9.5(c) shall be applied by allocating Losses hereunder only
to the extent that such allocation would not cause a Member to have such a
deficit in its Capital Account as a consequence of receiving such allocation
of Losses (such allocation of Losses to be in proportion to Percentage
Interests); provided, however, that if no Member may receive an additional
allocation of Losses pursuant to this Section 9.5(c), such additional Losses
shall be allocated solely to those Members who bear the economic risks for
such additional Losses within the meaning of Section 704(b) of the Code and
the regulations thereunder.
.6 Allocations for Income Tax Purposes. The income, gains, losses,
deductions and credits of the Company for federal, state and local income tax
purposes shall be allocated in the same manner as the corresponding items
entering into the computation of Profits and Losses were allocated pursuant to
Section 9.5; provided that solely for such income tax purposes and not for
Capital Account purposes, income, gains, losses, deductions and credits of the
Company shall be allocated among the Members so as to take into account any
variation between the adjusted tax basis for federal income tax purposes of
any asset and its Book Basis (a) at the time of contribution for any property
contributed to the Company, and (b) at the time the Book Basis is adjusted, in
the event any Company asset is revalued. If, for federal income tax purposes,
SLG is deemed to have purchased 49.9% of the Property upon its purchase of its
interest in the Company, the Company shall use the remedial allocation method
as permitted under Treasury Regulation Section 1.704-3(d) in order to take
into account such variation with respect to the Property.
ARTICLE 10.
ASSIGNMENT AND OFFER TO PURCHASE
.1 Transfers.
(a) Neither Member, nor any permitted assignee or successor in
interest of either Member, may Transfer its interest in the Company, or in any
part thereof, or in all or any part of the assets of the Company except as
provided in this Article 10. Except as provided in Subsections 10.1(c),
10.1(d), 10.1(e) or 10.1(f) and for the limited purposes described therein
only, neither Member shall have the right to Transfer less than all of its
Entire Interest.
(b) Transfer by Prudential of its Entire Interest in the Company to
an Affiliate who is not an individual shall be a Transfer permitted under this
Article 10 and Prudential shall not be required to obtain the consent of, nor
offer its interest to SLG in connection with such a Transfer.
(c) Without regard to the restrictions imposed by this Article 10
(excepting the obligation set forth in Subsections 10.1(f) and (g)),
Prudential may allocate all or part of its interest in the Company to a
separate account formed by Prudential pursuant to the provisions of Section
17B:28-7 N.J.S.A.
(d) Neither Member shall permit a Transfer of a fifty percent (50%)
or greater interest in such Member (at any one time or in the aggregate) or
otherwise transfer decision-making authority over, or control of, such Member
to another Person (any such instance, an "Entity Level Transfer"). No
transferee, pursuant to an Entity Level Transfer, shall be entitled to (1)
receive direct distributions or allocations from the Company, (2) have the
right, directly or indirectly, to vote on any matters involving the Company or
this Agreement, (3) be admitted directly as a member of the Company, or (4)
otherwise act, with respect to its interests, in a manner that is likely to
create recourse for, or liability to, the Company.
(e) If either Member shall Transfer a portion of its Percentage
Interest in the Company as provided in Subsection 10.1(c) that, together with
other interests in the Company Transferred during the preceding twelve (12)
months, represents more than a 49.9% interest in the total profits and capital
of the Company, such Transfer, at either Member's option, shall be effected so
as to avoid a termination of the Company for federal income tax purposes under
Section 708(b)(1)(B) of the Code, and for that purpose the Members agree to
negotiate modifications to this Agreement in good faith.
(f) Notwithstanding anything to the contrary in this Agreement, under
no circumstances shall (1) the Property be Transferred or any Member be
entitled to Transfer an interest in the Company or effectuate an Entity Level
Transfer if, (i) in the reasonable judgment of either Member, (A) the same
would result in a "prohibited transaction" or (B) the transferee would be a
"party in interest", as such terms are defined in ERISA or any similar
prohibition under applicable law, or (ii) such Transfer or Entity Level
Transfer would result in a default of the terms of the Initial Mortgage Loan
or the Mortgage Loan, as applicable, or otherwise require the making of any
material payment to the Initial Lender or the lender under the Mortgage Loan,
as applicable; or (2) any Member be obligated to sell a percentage interest in
the Company that is greater than forty nine percent (49.9%) of all Percentage
Interests therein.
(g) In the event of a termination of the Company within the meaning
of Section 708 of the Code because of the dissolution of, or a Transfer of,
any interest in a Member or an entity owning directly or indirectly a
beneficial interest in a Member or a Transfer of a Member's interest in the
Company, such Member shall indemnify the other Member (the "Indemnitee") and
hold the Indemnitee harmless for, from and against any and all net adverse
federal, state or local tax consequences (including any diminution or delay in
any depreciation, recovery or amortization deductions and any and all
penalties, interest, expenses and taxes on payments made pursuant to this
Subsection 10.1(g)) which the Indemnitee shall sustain as a result of such
termination.
(h) Notwithstanding any provision herein to the contrary, a Transfer
of a fifty percent (50%) or greater interest in SLG Realty or another transfer
of decision-making authority over, or control of, SLG Realty shall be
permitted provided that (1) SLG shall notify Prudential in writing as promptly
as possible, consistent with applicable laws, of any such pending Transfer and
in any event, no later than five (5) Business Days after the effective date of
such a Transfer. The notice shall describe in reasonable detail the pending or
actual Transfer, as the case may be, and shall identify the transferee and its
principals. Prudential shall have the right, exercisable within thirty (30)
days after the later of (i) making such notice or (ii) the actual Transfer, to
initiate the buy-sell procedures pursuant to Section 10.3 without reference to
the restriction imposed by the Interests Transfer Lockout Period. If the
buy-sell procedures are initiated and Prudential is to sell its interest as a
result thereof, SLG shall pay any and all transfer or similar tax that may be
assessed as a consequence of such sale.
.2 Other Assignments Void. Any purported Transfer of an interest in the
Company not otherwise permitted by this Article 10 shall be null and void.
.3 Transfer of Entire Interest to Other Member Buy-Sell.
(a) Either Member (the "Initiating Member") may at any time following
11:59 p.m. on the last day of the thirty ninth (39th) month after the date
hereof (the "Interests Transfer Lockout Period") give the other Member (the
"Non-Initiating Member") a written notice (the "Buy-Sell Notice") of its
desire to purchase the Non-Initiating Member's entire Percentage Interest (the
"Entire Interest"). Such notice shall provide, in reasonable detail, the terms
upon which the Initiating Member shall be willing to purchase the
Non-Initiating Member's Entire Interest, including (1) the value ("Stated
Value") that the Initiating Member places on all the assets of the Company,
and (2) the applicable sales price (the "Buy-Sell Price") for the
Non-Initiating Member's Entire Interest in the Company, which shall be based
on a hypothetical Transfer of the Company for cash at the Stated Value as of
the date of receipt of the Buy-Sell Notice and shall be the amount that the
Non-Initiating Member would receive (excluding repayments of Special Loans and
Emergency Loans, which shall be purchased from the selling Member pursuant to
Subsection 10.7(c)) in a hypothetical liquidation of the Company's assets (in
accordance with the procedures and priorities stated in Article 13) following
such a hypothetical Transfer; provided, however, that, in making such
calculation, it shall be assumed that no reserves are required pursuant to
Subsection 13.5(b) with respect to contingent liabilities and no deduction
from the hypothetical liquidation proceeds shall be made with respect to
transfer and other taxes.
(b) The Non-Initiating Member shall, on or before the date that is
thirty (30) days after the date of receipt of the Buy-Sell Notice, either (1)
accept the offer of the Initiating Member unconditionally, or (2) deliver its
own Buy-Sell Notice back to the Initiating Member in accordance with this
Section 10.3, but with a Stated Value at least $1,000,000 greater than the
Stated Value in the Buy-Sell Notice it received. If the Non-Initiating Member
fails to respond to the Buy-Sell Notice in strict conformance with this
Section 10.3 and within such thirty (30) day period, the failure to respond
shall be deemed the Non-Initiating Member's election to sell its Entire
Interest to the Initiating Member at the Buy-Sell Price. If the Non-Initiating
Member responds to the Buy-Sell Notice by delivering its own Buy-Sell Notice
to the Initiating Member, then the process described in this Section 10.3
shall commence anew, with the Non-Initiating Member deemed to be the
Initiating Member and the Initiating Member deemed to be the Non-Initiating
Member. Unless and until otherwise agreed in writing, the process shall
continue until an offer is accepted or deemed accepted.
(c) Upon acceptance or deemed acceptance of an offer pursuant to this
Section 10.3, the Members shall negotiate in good faith to complete the
documents necessary and appropriate to close the transaction, which documents
shall incorporate the following terms:
(1) The purchase price shall be calculated by the Accountant,
with appropriate adjustments to reflect Company net income or loss from the
date of the accepted Buy-Sell Notice through the closing date;
(2) Closing shall occur at the office of the selling Member's
counsel no later than ninety (90) days after the Non-Initiating Member's
election, or deemed election, to sell its Entire Interest, or at such other
time or place as may be otherwise agreed to in writing by the Non-Initiating
Member and the Initiating Member;
(3) There shall be no conditions to the buying Member's
obligation to purchase, including conditions relating to "due diligence" or
"contingencies;"
(4) There shall be no representations or warranties required of
either party except as to the authority of each Member, and the selling
Member's marketable title to its Entire Interest. The selling Member shall
continue to bear its proportionate liability for claims against the Company
arising from pre-closing acts, omissions, or agreements; and
(5) Each party shall bear its own attorney's fees in connection
with the transaction. The buying Member shall bear the cost of any title
searches or insurance it elects to purchase. Subject to the provisions of
Subsection 10.7(f), all other expenses of the transaction shall either be
charged to the Company before the closing or shall be shared by the buying
Member and the selling Member in proportion to their Percentage Interests
immediately prior to the closing. No brokerage commission shall be payable by
either party or the Company.
(d) Notwithstanding any contrary provision of this Section 10.3, if
the original Non-Initiating Member shall purchase the original Initiating
Member's Entire Interest pursuant to a Buy-Sell Notice sent by such
Non-Initiating Member, and such Buy-Sell Notice shall have been received by
the original Initiating Member during the period commencing on the first day
of the fortieth (40th) month after the date hereof and ending on the last day
of the seventy sixth (76th) month after the date hereof (the "Discount
Period"), then the original Non-Initiating Member shall be entitled to
purchase the Initiating Member's Entire Interest at a price equal to
ninety-seven percent (97%) of the Buy-Sell Price as determined by such
procedure.
(e) In connection with the Transfer of one Member's Entire Interest
to the other Member pursuant to this Section 10.3, all of the provisions of
Subsections 10.7 (b), (c), (d), (e),(f), (g), (h), (i) and (j) shall be
applicable to such Transfer.
.4 Right of First Refusal.
(a) Either Member may, at any time, sell its Entire Interest to a
third party; provided that the Member seeking to sell its Entire Interest (the
"Offeror") shall provide a written notice (a "Notice of Offer") to the other
Member (the "Offeree"), which notice shall have attached thereto a copy of an
executed agreement (a "Third Party Contract") relating solely to the proposed
Transfer of the Offeror's Entire Interest. The Third Party Contract shall
provide all of the terms related to the proposed Transfer, including (1) the
identity of the buyer (and, if applicable, the identity of its principals) and
(2) the purchase price to be paid for the Offeror's Entire Interest (the
"Right of First Refusal Price"). The Offeree shall have a period of thirty
(30) days (the "Right of First Refusal Period") from its receipt of a Notice
of Offer to elect to purchase the Offeror's Entire Interest; provided that if
the Offeree shall elect to purchase the Offeror's Entire Interest, and the
Notice of Offer shall have been received during the Discount Period, then the
Offeree shall be entitled to purchase the Offeror's Entire Interest at a price
equal to ninety-seven percent (97%) of the Right of First Refusal Price. If
the Offeree fails to respond to the Notice of Offer on or prior to the
expiration of the Right of First Refusal Period, then the Offeror shall have
the right to consummate the transactions contemplated in the Third Party
Contract in accordance with the terms thereof.
(b) Upon acceptance of a Notice of Offer pursuant to this Section
10.4, the Members shall negotiate in good faith to complete the documents
necessary and appropriate to close the transaction, which documents shall
incorporate the following terms:
(1) There shall be no conditions to the buying Member's
obligation to purchase, including conditions relating to "due diligence" or
"contingencies;"
(2) Closing shall occur at the office of the Selling Member's
counsel at the time set forth in the Third Party Contract, or at such other
time or place as may be otherwise agreed to in writing by the Members;
(3) There shall be no representations or warranties required of
either party except as to the authority of each Member, and the selling
Member's marketable title to its Entire Interest. The selling Member shall
continue to bear its proportionate liability for claims against the Company
arising from pre-closing acts, omissions, or agreements; and
(4) Each party shall bear its own attorney's fees in connection
with the transaction. The buying Member shall bear the cost of any title
searches or insurance it elects to purchase. All other expenses of the
transaction shall either be charged to the Company before the closing or shall
be shared by the buying Member and the selling Member in proportion to their
Percentage Interests immediately prior to the closing. No brokerage commission
shall be payable by either party or the Company.
(c) In connection with the Transfer of one Member's Entire Interest
to the other Member pursuant to this Section 10.4, all of the provisions of
Sections 10.7 (b), (c), (d), (e), (f), (g), (h), (i) and (j) shall be
applicable to such Transfer.
.5 Transfer of the Property.
(a) The Property may not be sold during the first four (4) years
following the date hereof (the "Property Transfer Lockout Period") without the
mutual consent of the Members. After the expiration of the Property Transfer
Lockout Period, either Member (the "Seller Member") may give a written notice
("Sales Notice") to the other Member (the "Other Member") of its desire to
sell the Property. The Sales Notice shall provide in reasonable detail the
terms upon which the Seller Member wishes to sell the Property, including the
price for the Property (the "Sales Price"), and shall be accompanied by
computations with respect to each Member setting forth the amount (as to each
Member, the "Interest Value") that each would receive (excluding repayments of
Special Loans and Emergency Loans which would be repurchased from the Seller
Member pursuant to Subsection 10.7(c)) in a hypothetical liquidation of the
Company's assets (in accordance with the procedures and priorities stated in
Article 13) following a hypothetical Transfer of the Property for cash at the
Sales Price as of the date of receipt of the Sales Notice.
(b) Within thirty (30) days after receiving the copy of the Sale
Proposal, the Other Member may notify (a "Purchase Election Notice") the
Seller Member that it has elected to purchase, on the terms provided in the
Sales Notice, either the Property at the Sales Price or the Seller Member's
Entire Interest at the Interest Value; provided that if the Other Member shall
elect to purchase the Property or the Entire Interest of the Seller Member,
and the Sales Notice shall have been received during the Discount Period, then
the Other Member shall be entitled to purchase, at its option, either (i) the
Property at a price equal to ninety seven percent (97%) of the Sales Price set
forth in the Sales Notice or (ii) the Entire Interest of the Seller Member at
a price equal to ninety-seven percent (97%) of the Interest Value of the
Seller Member. If the Other Member elects to purchase either the Property or
the Seller Member's Entire Interest in accordance with the Sales Notice, then
the Members shall promptly proceed with the Transfer pursuant to this
Subsection 10.5(b), the closing to take place at the office of the Seller
Member's counsel within ninety (90) days following the date of receipt of the
Sales Notice. The provisions of Subsections 10.7(a), (d), (e), (f), (g), (h)
and (i) shall apply to such a Transfer of the Property and the provisions of
Subsections 10.7(b), (c), (d), (e), (f), (g), (h), (i) and (j) shall apply to
such a Transfer of an Entire Interest. All prorations, including real estate
taxes and rents shall be made as of the date of transfer irrespective of
whether the Property or an Entire Interest was conveyed. All real property
transfer taxes shall be paid for by the Company and all recording fees shall
be paid for by the Other Member irrespective of whether the Property or an
Entire Interest was conveyed. Failure of the Other Member to deliver a
Purchase Election Notice within such ninety (90) day period shall be deemed an
election by the Other Member to proceed with a Transfer of the Property (but
not of any Percentage Interests in the Company) to a third party and the
Members shall thereafter use commercially reasonable efforts to sell the
Property to a third party and shall be obligated to do so for a period of nine
(9) months thereafter; provided that such third party shall pay a purchase
price equal to not less than ninety-eight percent (98%) of the Sales Price
(net of legal fees and brokerage commissions).
(c) If a Transfer to a third party has not been closed within such
nine (9) month period, either Member may elect to remove the Property from the
market, and thereafter the Property may not be offered for Transfer to any
third party prior to reinitiating the process set forth in this Section 10.5.
(d) During any period of time when either Member or the Company is
actively marketing the Property pursuant to this Section 10.5, neither Member
shall exercise its right to deliver a Buy-Sell Notice pursuant to Section 10.3
except in the circumstances described in Subsection 10.1(h).
.6 Assumption by Assignee.
(a) Any Transfer of an Entire Interest in the Company to a third
party pursuant to this Agreement shall be in writing, and shall be a Transfer
of all of the assignor's rights and obligations thereafter accruing hereunder,
and the assignee shall expressly agree in writing to be bound by all of the
terms of this Agreement and assume and agree to perform all of the assignor's
agreements and obligations existing or arising at the time of and subsequent
to such Transfer. Upon any Transfer of the assignor's Entire Interest and
after such assumption, the assignor shall be relieved of its agreements and
obligations hereunder arising after such Transfer and the assignee shall
become a Member in place of the assignor; provided, however, that the
agreements and obligations of the assignor that existed at the time of such
Transfer, including indemnification and other obligations and representations
and warranties contained herein shall survive the Transfer. An executed
counterpart of each such Transfer of an Entire Interest in the Company and
assumption of a Member's obligations thereafter accruing shall be delivered to
each Member and to the Company. The assignee shall pay all expenses incurred
by the Company in admitting the assignee as a Member. Except as otherwise
expressly provided herein, no permitted Transfer shall terminate the Company.
As a condition to any Transfer of an Entire Interest, the
selling Member shall obtain such consents as may be required from third
parties, if any, or waivers thereof. The other Member shall cooperate with the
selling Member in obtaining such consents or waivers at no expense to the
other Member.
(b) If a Transfer of either Member's Entire Interest in the Company
shall take place pursuant to the provisions of this Agreement, then unless the
Company is dissolved by such Transfer, the continuing Member on behalf of the
Company promptly thereafter shall take all such actions as may be required by
law to reflect such Transfer.
.7 General Transfer Provisions. Subsections (b), (c), (d), (e), (f), (g),
(h), (i) and (j) of this Section 10.7 shall apply to the Transfer of one
Member's Entire Interest to the other Member pursuant to Sections 10.3 and 10.4.
Subsections (a), (d), (e), (f), (g), (h) and (i) of this Section 10.7 shall
apply to the Transfer of the Property by the Company to a Member pursuant to
Section 10.5:
(a) In the event of a Transfer of the Property, the purchase price
shall be paid, at the Company's option, by certified checks or by wire
transfers of immediately available funds to payees as designated by the
Company.
(b) In the event of the Transfer of an Entire Interest, the purchase
price shall be paid, at the selling Member's option, by certified check drawn
to the order of the selling Member (or as the selling Member shall otherwise
direct), or by wire transfer of immediately available funds to an account or
accounts designated by the selling Member. At the closing of a Transfer of an
Entire Interest, there shall be an adjustment of the purchase price based upon
a proration of any accrued income and expenses pursuant to an accounting of
the Member's books as of the closing date; such accounting shall be audited by
the Accountants within ninety (90) days thereafter. Either Member may require
that a portion of the purchase price equal to the likely post-closing
adjustment (as mutually agreed to by the Members, or as determined by the
Accountants) shall be set aside and placed in escrow with an escrow agent
reasonably acceptable to both Members. The escrow agent shall distribute the
escrowed amount promptly after receipt of, and in accordance with, the
Accountants' audit report. At closing the selling Member shall deliver to the
purchasing Member a "nonforeign affidavit" as referred to in the Foreign
Investment in Real Property Tax Act in form and substance reasonably
satisfactory to the purchasing Member together with original counterparts or
certified copies of all leases and service contracts affecting the Property.
(c) If there are any outstanding Special Loan(s) or Emergency Loan(s)
by the selling Member to the Company, such Special Loan(s) or Emergency
Loan(s), including accrued and unpaid interest thereon, shall be purchased by
the purchasing Member for the full amount outstanding as a condition precedent
to such Transfer. The purchase price for such Special Loan(s) or Emergency
Loan(s) shall be paid, at the selling Member's option, by certified check
drawn to the order of the selling Member, or by wire transfer of immediately
available funds to an account designated by the selling Member. At the
closing, the selling Member shall deliver to the purchasing Member each note
evidencing such Special Loan(s) or Emergency Loan(s).
(d) On payment of the purchase price, the purchasing Member shall, at
its option, as to each Company debt, obligation or claim against the Company
for which the selling Member is or may be personally liable (except for any
debts, obligations or claims that are fully insured by the public liability
insurer(s) of the Company or another public liability insurer(s) acceptable to
the selling Member), elect one of the following options: (1) obtain a release
of the selling Member from all liability, direct or contingent, by all holders
of each such Company debt, obligation or claim, (2) cause the same to be paid
in full at the closing to the satisfaction of the selling Member, or (3)
obtain an indemnity in form and substance acceptable to Selling Member
indemnifying selling Member against claims that are not released or paid. In
addition, the purchasing Member shall defend, indemnify and hold the selling
Member harmless for, from and against any tort liability not insured against
by the Member's general comprehensive insurance policies (other than those
tort liabilities which are uninsurable) and which liability of the selling
Member is based solely on its status as a Member with respect to the Property;
provided, however, that such indemnification shall not extend to those claims
arising in whole or in part from intentional acts or omissions or negligence
proximately caused by the selling Member. If there are any Guaranty
Reimbursement Obligations owing to Prudential under the Limited Guaranty
Agreement, the same shall be fully satisfied as a condition precedent to any
Transfer. Thereafter, both Members shall execute a mutual general release
pursuant to which each shall waive and release the other from all liabilities
and obligations (whether known or unknown, foreseen or unforeseen or
previously accrued or thereafter accruing) relating to each Member's Entire
Interest or the Property, other than those arising from the indemnities given
pursuant to this Subsection 10.7(d).
(e) Following the giving of the Buy-Sell Notice pursuant to Section
10.3 or the Notice of Offer pursuant to Section 10.4 or the Sales Notice
pursuant to Section 10.5 in connection with a proposed Transfer to a Member
and until the closing thereof, all Members (including the selling Member)
shall continue to be entitled to distributions of Operating Cash Flow from the
Company in accordance with Subsection 9.2(a). Pending the closing of such
Transfer, neither Member shall be entitled to distributions of Extraordinary
Cash Flow, if any, in accordance with Subsection 9.2(b), provided however, if
such closing does not occur within the time period provided therefor in
Section 10.3, 10.4 or 10.5, as applicable, both Members shall be entitled to
any distribution of Extraordinary Cash Flow in accordance with Subsection
9.2(b).
(f) If the Property is damaged by fire or other casualty, or if any
entity possessing the right of eminent domain shall give notice of an
intention to take or acquire a substantial part of the Property, and such
damage occurs, or such notice is given between the date of the giving of the
Buy-Sell Notice pursuant to Section 10.3 or the Notice of Offer pursuant to
Section 10.4, or the Sales Notice pursuant to Section 10.5 and the closing
date of the purchase of an interest in the Company or the purchase of the
Property, the Members shall be required to complete the transaction and the
purchasing Member shall accept the Property in an "as is" condition and in
lieu of any reduction in purchase price shall accept an assignment of any
insurance or condemnation proceeds or an allocable portion thereof.
(g) At the closing of a Transfer of the Property, the Members shall
both execute and deliver a warranty deed with covenants against grantor's acts
in recordable form, a bill of sale to the purchaser of all of the assets of
the Company and Transfers to the purchaser of any and all leases or service
contracts affecting the Property. In the case of the Transfer of an Entire
Interest, the selling Member shall execute an assignment of its Entire
Interest, free and clear of all liens, encumbrances and adverse claims, which
assignment shall otherwise be in form and substance reasonably satisfactory to
the purchasing Member, and such other instruments as the purchasing Member
shall reasonably require to Transfer the Entire Interest of the selling Member
to such Person as the purchasing Member may designate. Such documents shall be
prepared by the purchasing Member and closing costs and all other charges
involved in closing the Transfer (except for attorneys' fees (each party
paying their own) and title insurance costs (to be paid by the purchaser))
shall be prorated between the Members in the ratio of their respective
Percentage Interests. Stamp, recording, transfer or similar taxes arising in
connection with the Transfer of the Entire Interest, if any, shall be paid by
the selling Member, and such taxes shall be paid by Company in connection with
a Transfer of the Property.
(h) The Company shall be dissolved as of the closing date of a
Transfer of the Property, and on the closing date the Members shall file, or
cause to be filed, a written certificate of cancellation with the Delaware
Secretary of State in accordance with Act Section 18-203 and such other
documents as shall be necessary or desirable to effectuate such dissolution.
The Members shall cooperate in taking all steps necessary in connection with
the dissolution of the Company. In the case of the Transfer of an interest in
the Company, the Company shall not be dissolved, but the Members will execute
and file on the closing date such amendment to the Certificate of Formation as
may be appropriate to reflect the change in the identity of the Members.
(i) It is the intent of the parties to this Agreement that the
requirements or obligations, if any, of one Member to sell its Entire
Interest, or to join in the conveyance by the Company of the Property in
accordance with the provisions of Sections 10.3, 10.4 or 10.5 shall be
enforceable by an action for specific performance of a contract relating to
the purchase of real property or an interest therein. If the selling Member
shall have created or suffered any unauthorized liens, encumbrances or other
adverse interest against either the Property or the selling Member's interest
in the Company, the purchasing Member shall be entitled either to an action
for specific performance to compel the selling Member to have such defects
removed, in which case the closing shall be adjourned for such purpose, or, at
the purchasing Member's option, to an appropriate offset against the purchase
price.
(j) In the event of the purchase of the Entire Interest of one Member
by the other Member, at the option of the purchasing Member, the Entire
Interest of the selling Member will be transferred to a nominee of the
purchasing Member.
.8 Indemnification for Securities Laws Violations.
(a) SLG acknowledges that any Transfer of a direct or indirect
interest in SLG may constitute or involve an offering or Transfer of
securities for purposes of the Securities Act of 1933, the Securities and
Exchange Act of 1934 and under applicable state securities laws. All such
federal and state securities laws which may have application to any such
transfers are referred to herein as the "Securities Laws."
(b) If any Transfer of a direct or indirect interest in SLG shall be
caused by or on behalf of SLG or any of its Affiliates, SLG shall be fully
liable and responsible to Prudential for any and all liability, loss, cost,
injury, damage or expense suffered or incurred by Prudential resulting from
violations of any Securities Laws occurring in connection with such transfer;
provided, however, that Prudential shall be responsible and liable to SLG for
any and all liability, loss, cost, injury, damage or expense suffered or
incurred by SLG resulting from any violation or breach of any Securities Laws
occurring in connection with such Transfer based upon false or misleading
information that is furnished in writing by Prudential in connection with such
Transfer by SLG or any Member therein.
(c) SLG shall indemnify, defend and hold Prudential and its
Affiliates free and harmless for, from and against any and all liability,
loss, cost, injury, damage or expense (including, without limitation,
attorneys' fees and costs incurred in the investigation, defense and
settlement of the matter) suffered or incurred by reason of any breach by
SLG of its obligations under this Subsection 10.8(b).
.9 Compliance with ERISA.
(a) Not less than five (5) Business Days before any direct Transfer
in SLG or any indirect Transfer in SLG (but only if such indirect Transfer
results from a Transfer of (1) a fifty percent (50%) or greater interest in
any Person (at any one time or in the aggregate other than transfers of shares
in SL Green Realty Corp. made in the ordinary course of business to or from
non-Affiliates) or (2) decision-making authority over, or control of, such
Person) SLG shall cause the proposed transferee to deliver to Prudential a
certification in substantially the form of Exhibit D.
(b) Prudential shall deliver to SLG a certification in substantially
the form of Exhibit E attached hereto and made a part hereof on the closing or
consummation of each of the following transactions: (1) an Emergency Loan or
Special Loan; (2) a decrease of a Member's Percentage Interest pursuant to
Subsection 4.5(d) hereof; and (3) a Transfer pursuant to Section 10.3 or 10.4.
(c) If there is a proposed Transfer of the Property pursuant to
Section 10.5, and either Prudential or SLG buys the Property, then, at the
closing of the Transfer, (1) SLG shall deliver to Prudential a certification
in substantially the form of Exhibit D, and (2) Prudential shall deliver to
SLG a certification in substantially the form of Exhibit E.
(d) Anything else in this Agreement to the contrary notwithstanding,
Prudential shall have up to thirty (30) days following the receipt by it of a
certification by SLG or a proposed transferee provided for in this Section
10.9 to notify SLG that it has determined that a proposed Transfer by SLG of
its Entire Interest or a proposed Transfer of the Property would result in a
Plan Violation. If Prudential notifies SLG that any such proposed transaction
would constitute a Plan Violation (which notification shall contain an
explanation of the reasons for such determination), the proposed transaction
shall not be consummated and any attempt to do so shall be void. If, within
such thirty (30) day period, Prudential notifies SLG that it has determined
that no Plan Violation will result from the proposed transaction, or if
Prudential does not deliver any notification to SLG within such thirty (30)
day period, then the proposed transaction may be consummated; provided,
however, that such transaction must be consummated no later than (1) the
twentieth (20th) day after the delivery to SLG by Prudential of a notice that
it has determined that the proposed transaction will not result in a Plan
Violation or the expiration of the thirty (30) day period referred to in this
Subsection 10.9(d), as the case may be, or (2) if the applicable Section of
this Agreement provides for a closing that is later than such twenty (20) day
period, the latest day that such Section permits such closing to occur; and
provided, further, that, if any certification by SLG or a proposed transferee
contains a material misrepresentation or omission, then, in such event,
notwithstanding Prudential's lack of objection or deemed lack of objection
thereto, the proposed transaction shall not be consummated and, if it is
consummated, such transaction shall be void. Each (i) breach of representation
or warranty given in connection with this Section 10.9, and (ii) violation of
Sections 2.10(a)(5), this Section 10.9, or any other provision of this
Agreement relating to ERlSA or Plan Violations will constitute a default
entitling the Nondefaulting Member to terminate this Agreement pursuant to
Subsection 12.1(c).
(e) SLG shall indemnify Prudential and defend and hold Prudential
harmless from and against all loss, cost, damage and expense that Prudential
may incur, directly or indirectly, as a result of a (1) default, or (2) a
breach of a representation or warranty given by SLG or any Affiliate of SLG
under this Section 10.9, or (3) any material misstatement or omission in a
certification by SLG or proposed transferee of SLG which is given to
Prudential pursuant to this Section 10.9. The loss, cost, damage and expense
will include, without limitation, attorney's fees and costs incurred in the
investigation, defense and settlement of claims and losses incurred in (i)
correcting any Plan Violation, (ii) the Transfer of a prohibited Company
interest, or (iii) obtaining any individual exemption for a Plan Violation
that may be required, in Prudential's sole discretion. This indemnity shall
survive (A) the Transfer of the Property or of SLG's Entire Interest and (B)
termination of this Agreement. SLG shall not be required to indemnify
Prudential pursuant to this Subsection 10.9(e) if any of Prudential's
representations and warranties relating to ERISA or Plan Violations are
materially false.
(f) The Company will not enter into any agreements or suffer any
conditions that Prudential reasonably determines would result in a Plan
Violation. At SLG's request, Prudential shall deliver a notice of each such
determination to SLG together with an explanation of the reasons for the
determination.
(g) Prudential and SLG will cooperate to monitor and correct Plan
Violations.
ARTICLE 11.
DISSOLUTION OR BANKRUPTCY OF A MEMBER
.1 Dissolution or Merger. If either Member shall be dissolved or merged
with or consolidated into another Person, or if all or substantially all of its
assets shall be Transferred, then unless such dissolution, merger,
consolidation, or Transfer is expressly permitted under Article 10, such
dissolution, merger, consolidation or Transfer shall, at the option of the
other Member, be a dissolution of the Company, and the other Member shall be
the Liquidating Member in the dissolution of the Company. The other Member's
option shall be effective as of the date of such dissolution, merger,
consolidation or Transfer and the option shall be exercised, if at all, within
sixty (60) days after the other Member receives notice in writing of such
dissolution, merger, consolidation or Transfer.
.2 Bankruptcy, etc. If:
(a) either Member or any general partner in a Member or any general
partner in a general partner in a Member ("General Partner"), if such Member
is a partnership, or any managing member in a Member or any managing member in
a managing member in a Member ("Managing Member"), if such Member is a limited
liability company, or any successor in interest thereto shall take, permit or
acquiesce in an Insolvency Action with respect to Member, General Partner or
Managing Member; or
(b) a court of competent jurisdiction shall enter an order, judgment
or decree approving a petition filed against either Member, or against any
General Partner, or against any Managing Member, seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under the present or any future federal bankruptcy code or any other
present or future applicable federal, state or other statute or law relating
to bankruptcy, insolvency, or other relief for debtors, and such Member, or
any General Partner, or any Managing Member, shall acquiesce in the entry for
such order, judgment or decree (the term "acquiesce" includes but is not
limited to the failure to file a petition or motion to vacate or discharge
such order, judgment or decree within thirty (30) days after the entry of the
order, judgment or decree) or such order, judgment or decree shall remain
unvacated and unstayed for an aggregate of ninety (90) days (whether or not
consecutive) from the date of entry thereof, or any trustee, receiver,
conservator or liquidator of said Member, or any General Partner, or any
Managing Member, or of all or any substantial part of said Member's or General
Partner's or Managing Member's property or its interest in the Company shall
be appointed without the consent or acquiescence of said Member, or such
General Partner, or such Managing Member, and such appointment shall remain
unvacated and unstayed for an aggregate of sixty (60) days (whether or not
consecutive); then such event shall cause the dissolution of the Company and
the other Member shall be the Liquidating Member.
ARTICLE 12.
DEFAULT
.1 Defaults. If either Member fails to perform any of its obligations
hereunder or under any agreement or instrument delivered pursuant hereto, or
breaches any of the terms, conditions or covenants contained in any of the
foregoing, (other than the obligation to make Additional Capital Contributions
specified in Section 4.5) then the other Member (the "Nondefaulting Member")
shall have the right to give such party (the "Defaulting Member") a notice of
default ("Notice of Default"). The Notice of Default shall set forth the
nature of the obligation giving rise to the default.
(a) If such default is neither a failure to pay money nor a default
with respect to the representations contained in Section 2.10 (for which no
cure period shall apply) and if, within the thirty (30) day period following
receipt of the Notice of Default, the Defaulting Member in good faith
commences to perform such obligation and cure such default and thereafter
prosecutes to completion with diligence and continuity the curing thereof and
cures such default within a reasonable time (but no later than one year), then
it shall be deemed that the Notice of Default was not given and the Defaulting
Member shall lose no rights hereunder. If, within such thirty (30) day period,
the Defaulting Member does not commence in good faith the curing of such
default or does not thereafter prosecute to completion with diligence and
continuity the curing thereof when and as required by the preceding sentence,
then the Nondefaulting Member shall have the rights set forth in Subsection
12.1(c).
(b) If such default is a failure to pay money when required, and if
such sums of money shall be paid within forty-five (45) days after the date
such money is due, together with any additional costs that the Company and/or
the Nondefaulting Member may have incurred because the sums were not paid when
due (payment of such additional costs shall not be credited to the Defaulting
Member's Capital Account or count as a contribution to such Capital Account)
then it shall be deemed that such Notice of Default was not given and the
Defaulting Member shall lose no rights hereunder. If such sums are not so paid
within such forty-five (45) day period, the Nondefaulting Member shall have
the rights set forth in Subsection 12.1(c).
(c) If any default is not cured as set forth in Subsection 12.1(a) or
12.1(b), the Nondefaulting Member, by giving the Defaulting Member written
notice thereof within ninety (90) days of the expiration of the respective
cure periods provided in Subsection 12.1(a) or 12.1(b), may treat such default
as a dissolution of the Company, and the Nondefaulting Member shall be the
Liquidating Member with the rights provided in Article 13 including the right
to deliver a Demand Notice to the Defaulting Member; provided, however, that
if such default is cured prior to the delivery of any notice provided for in
this Subsection 12.1(c), then it shall be deemed that such notice may not be
given and the Defaulting Member shall lose no rights hereunder.
.2 Negation of Right to Dissolve by Will of Member. Except as set forth in
Articles 10 and 11 and in Section 12.1, neither Member shall have the right to
terminate this Agreement or dissolve the Company by its express will or by
withdrawal without the consent of the other Member. Upon any dissolution
occurring by operation of law or caused by the express will or withdrawal of
one of the Members in contravention of this Agreement, the Member not causing
the dissolution shall be the Liquidating Member.
.3 Not Exclusive Remedy. The rights granted in Section 12.1 shall not be
deemed an exclusive remedy of the Nondefaulting Member, but all other rights
and remedies, legal and equitable, shall be available to it.
.4 Waiver of Right of Partition. The Members agree that each part of the
Improvements is an integrated unit of the Property, and it would be unfeasible
and detrimental to the Property to have it partitioned, and therefore each
Member does hereby waive any claim or right to petition any court for
partition of the Property.
ARTICLE 13.
DISSOLUTION
.1 Winding Up by Members. Upon dissolution of the Company by operation of
law, by any provision of this Agreement or by agreement between the Members,
the Company's business shall be wound up and all its assets distributed in
liquidation. In such dissolution, except as otherwise expressly provided in
Articles 10, 11 and 12, the Members shall be co-liquidating Members and shall
continue to act through the Committee. In such event, the Members shall have
equal rights to wind up the Company and shall proceed to cause the Company's
property to be sold and to distribute the proceeds of Transfer as provided in
Section 13.5. Except with respect to (a) all assets on which a single,
non-severable mortgage or other lien will be in effect after such
distribution, and (b) any assets the Members shall determine are not readily
severable or distributable in kind, the Members, to the extent that
liquidation of such assets is not required to fulfill the payments, if any,
under Subsections (a), (b), (c) and (d) of Section 13.5, shall have the right
to distribute, in kind, undivided interests in all or a portion of the assets
of the Company to the Members pro rata as tenants in common in accordance with
Subsection 13.5(e).
.2 Winding Up by Liquidating Member. In a dissolution pursuant to the
occurrences of events described in any of Articles 10, 11 or 12, the
Liquidating Member shall be as therein provided and such Liquidating Member
shall have the right to wind up the Company and cause the Company's assets to
be sold and the proceeds of Transfer distributed as provided in Section 13.5.
.3 Offset for Damages. In the event of dissolution resulting from an event
described in Article 11 or 12, the Liquidating Member shall be entitled to
deduct from the amount payable to the other Member pursuant to Subsection
13.2(a) or (b), Subsection 13.4 or Section 13.5 the amount of damages incurred
by the Liquidating Member proximately resulting from any such event.
.4 Distributions of Operating Cash Flow. Subject to the provisions of
Section 10.7, upon the dissolution of the Company for any reason, during the
period of liquidation and until termination of the Company, the Members shall
continue to receive the Operating Cash Flow and to share profits and losses
for all tax and other purposes as provided in Article 9 of this Agreement.
.5 Distributions of Proceeds of Liquidation. The proceeds of
liquidation shall be applied in the following order of priority:
(a) First. To the payment of: (1) debts and liabilities of the
Company except: (i) Special Loans, Emergency Loans or Loans that may have been
made by either of the Members to the Company, and (ii) debts secured by lien
on property sold subject thereto, provided that neither the Company nor either
of the Members shall be personally liable on, or they shall be released from,
such debts, and (2) expenses of liquidation;
(b) Second. To the setting up of any reserves that the Liquidating
Member or Members, as the case may be, may reasonably deem necessary for any
contingent or unforeseen liabilities or obligations of the Company or of the
Members arising out of or in connection with the Company. Any such reserves
shall be deposited by the Company in a bank or trust company acceptable to the
Liquidating Member or Members, as the case may be, as escrow agent, to be held
by it for the purpose of disbursing such reserves in payment of any of the
aforementioned liabilities or obligations, and at the expiration of such
period as the Liquidating Member or Members, as the case may be, shall
reasonably deem advisable, distributing the balance, if any, thereafter
remaining, in a manner hereinafter provided;
(c) Third. To the repayment of unpaid principal and accrued and
unpaid interest on any Emergency Loans, but if the amount available for such
repayment shall be insufficient to repay all Emergency Loans, then repayment
shall be made in the same manner as provided in Section 5.2;
(d) Fourth. To the repayment of unpaid principal and accrued and
unpaid interest on any Special Loans that may have been made by either of the
Members, but if the amount available for such repayment shall be insufficient
to repay all Special Loans, then repayment shall be made in the manner
provided in Section 5.2;
(e) Fifth. After making all applicable allocations to the Members'
Capital Accounts as provided in Article 9, to the Members in accordance with
positive Capital Account balances.
.6 Orderly Liquidation. A reasonable time shall be allowed for the
orderly liquidation of the assets of the Company and the discharge of
liabilities to creditors so as to enable the Members to minimize the losses
normally attendant upon a liquidation.
.7 Financial Statements. During the period of winding up, all the
financial statements provided for in Section 7.1 shall continue to be
prepared and furnished to the Members.
.8 No Restoration of Deficit Capital Accounts. At no time during or after
the term of the Company shall a Member with a deficit balance in its Capital
Account have any obligation to the Company or to another Member or to any
other Person to restore such deficit balance.
.9 Certificate of Cancellation. When all debts, liabilities and
obligations of the Company have been paid and discharged or adequate provisions
have been made therefor and all of the remaining property and assets of the
Company have been distributed to the Members, a certificate of cancellation
shall be executed and filed by the Members with the Delaware Secretary of State
in accordance with Act Section 18-203.
ARTICLE 14.
NOTICES
.1 In Writing; Address. All notices, requests, approvals, elections,
offers, acceptances, demands, consents, reports and other communications
(collectively, "Notices") given hereunder shall be in writing and shall be
given to the Company or to the Members at the respective address and/or
facsimile number set forth below or at such other address and/or facsimile
number as the Company or either of the Members may hereafter designate by like
notice.
IF TO THE COMPANY:
SLG 100 Park LLC
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Mr. Marc Holliday
Telecopier: (212) 216-1684
Telephone: (212) 216-1785
COPIES TO:
SL Green 100 Park LLC
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Benjamin Feldman, Esq.
Telecopier: (212) 216-1790
Telephone: (212) 216-1646
and
Greenberg Traurig LLP
200 Park Avenue
New York, New York 10166
Attention: Robert J. Ivanhoe, Esq.
Telecopier: (212) 801-6400
Telephone: (212) 801-9333
IF TO PRUDENTIAL:
The Prudential Insurance Company of America
Prudential Real Estate Investors
8 Campus Drive, 4th Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Mr. J. Allen Smith
Telecopier: (973) 683-1794
Telephone: (973) 734-1734
and
The Prudential Insurance Company of America
Prudential Real Estate Investors
PAMG-RE Law Department
8 Campus Drive, 4th Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Joan N. Hayden, Esq.
Assistant General Counsel
Telecopier: (973) 683-1788
Telephone: (973) 683-1772
COPY TO:
O'Melveny & Myers LLP
153 East 53rd Street
New York, New York 10022
Attention: Jacqueline A. Weiss, Esq.
Telecopier: (212) 326-2061
Telephone: (212) 326-2110
IF TO SLG:
SL Green 100 Park LLC
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Mr. Marc Holliday
Telecopier: (212) 216-1684
Telephone: (212) 216-1785
COPIES TO:
SL Green 100 Park LLC
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Benjamin Feldman, Esq.
Telecopier: (212) 216-1790
Telephone: (212) 216-1646
and
Greenberg Traurig LLP
200 Park Avenue
New York, New York 10166
Attention: Robert J. Ivanhoe, Esq.
Telecopier: (212) 801-6400
Telephone: (212) 801-9333
A copy of any notice or any written communication from the
Internal Revenue Service to the Company shall be given to each Member at the
addresses provided for above.
.2 Method. Notices or other communications shall be deemed duly given or
made (a) at the time and on the date when received by facsimile (provided that
the sender of such communication shall orally confirm receipt thereof by the
appropriate parties and send a copy of such communication to the appropriate
parties within one (1) Business Day of such facsimile), (b) when personally
delivered as shown on a receipt therefor (which shall include delivery by a
nationally recognized overnight delivery service), or (c) within three (3)
Business Days after being mailed by United States registered or certified
mail, return receipt requested, postage prepaid, deposited in a United States
post office or a depository for the receipt of mail regularly maintained by
the post office.
.3 Copies. A copy of any notice, service of process, or other document in
the nature thereof received by either Member from anyone other than the other
Member, shall be delivered by the receiving Member to the other Member as soon
as practicable.
ARTICLE 15.
MISCELLANEOUS
.1 Additional Documents and Acts. In connection with this Agreement as
well as all transactions contemplated by this Agreement, each Member agrees to
from time to time, at the other Member's request, execute and deliver such
additional documents and instruments, and perform such additional acts, as the
other Member may deem to be necessary or desirable to effectuate, carry out
and perform all of the terms, provisions and conditions of this Agreement and
all such transactions. Except as otherwise expressly provided, all approvals
of either party hereunder shall be in writing.
.2 Estoppel Certificates. Each Member shall, at any time and from time to
time, upon not less than twenty (20) days' prior written notice from the other
execute, acknowledge, and send to the other a statement in writing certifying
that this Agreement is unmodified and in full force and effect (or if there
have been modifications, that the Agreement is in full force and effect as
modified and stating the modifications) and stating whether or not as to both
Members either is in default in keeping, observing or performing any of the
terms contained in this Agreement, and if in default, specifying each such
default (limited, as regards the other's defaults, to those defaults of which
the certifying Member has knowledge).
.3 Governing Law; Service of Process, etc. This Agreement and the rights
and obligations of the Members hereunder shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be wholly performed therein, without regard to principles of conflicts
laws. All judicial proceedings brought against either Member with respect to
this Agreement shall be brought in any state or federal court of competent
jurisdiction in the State of New York, New York County and by execution and
delivery of this Agreement by each Member, each such party accepts, for itself
and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts, and irrevocably agrees to
be bound by any final judgment rendered thereby in connection with this
Agreement from which no appeal has been taken or is available. Each Member
irrevocably agrees that all process in any such proceedings in any such court
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to it at its address
as specified in Section 14.1, such service being hereby acknowledged by each
Member to be effective and binding service in every respect. Each Member
irrevocably waives any objection, including any objection of the laying of
venue or based on the grounds of forum non conveniens (provided that the
action or proceeding in question is brought in New York County, New York),
that it may now or hereafter have to the bringing of any such action or
proceeding in any such jurisdiction. Nothing herein shall affect the right to
serve process in any other manner permitted by law. This Agreement constitutes
commercial activities of the Company. Neither Member shall be entitled to any
immunity whatsoever, whether characterized as sovereign immunity or otherwise,
from any legal proceedings, whether in the United States or elsewhere, to
enforce the obligations or liabilities hereunder. Each Member acknowledges
that to the extent any of its property should at any time acquire any
immunity, it hereby irrevocably waives such right to immunity in respect of
any actions or proceedings, wherever brought, in respect of the obligations or
liabilities hereunder.
.4 Entire Agreement. This Agreement, together with the agreements and
instruments delivered pursuant hereto or contemporaneously herewith, contains
all of the understandings and agreements of whatsoever kind and nature
existing between the parties hereto with respect to the subject matter hereof
and the rights, interests, understandings, agreements and obligations of the
respective parties pertaining to the Company. Any and all other prior
agreements between the parties with respect to such subject matter are hereby
superseded.
.5 Rights and Remedies Not Mutually Exclusive. The rights and
remedies of any of the Members hereunder shall not be mutually exclusive,
i.e., the exercise of one or more of the provisions hereof, unless
specifically stated to the contrary, shall not preclude the exercise of any
other provisions hereof.
.6 Severability. In the event of invalidity of any provision of this
Agreement, such provision shall be deemed stricken from this Agreement, which
shall continue in full force and effect as of the offending provision were
never a part of this Agreement.
.7 Headings, etc. All headings herein and the table of contents hereof are
inserted only for convenience and ease of reference and are not to be
considered in the construction or interpretation of any provision of this
Agreement.
.8 Binding Effect; Benefits. Subject to the Transfer restrictions herein,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. This Agreement is
intended for the benefit of the Members and the Company only and shall not
confer any rights or claims upon, or otherwise inure to the benefit of, any
other Person.
.9 Waiver, etc. The failure of either of the Members to at any time
enforce any of the provisions of this Agreement or any agreement or instrument
delivered pursuant hereto or to give any notice of default thereunder, shall
not be deemed or construed to be a waiver of any such provision, nor to in any
way affect the validity of this Agreement or any agreement or instrument
delivered pursuant hereto or any provision hereof or the right of either of
the Members to thereafter enforce each and every provision of this Agreement
(including the provisions of Article 12) and each agreement and instrument
delivered pursuant hereto. No waiver of any breach of any of the provisions of
this Agreement or any agreement or instrument delivered pursuant hereto shall
be effective unless set forth in a written instrument executed by the Member
against which enforcement of such waiver is sought; and no waiver of any such
breach shall be construed or deemed to be a waiver of any other or subsequent
breach.
.10 Counterparts. This Agreement may be executed in a number of
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same Agreement.
.11 Amendments. This Agreement may not be amended, altered or
modified except by a written instrument executed by each of the Members.
.12 Indemnity as to Representations, etc.
(a) SLG hereby agrees to indemnify, defend, protect and hold
Prudential harmless from and against any and all liabilities, losses, costs,
damages and expenses (including attorneys' fees and costs incurred in the
investigation, defense and settlement of the matter) which Prudential may ever
sustain, suffer or incur and which relate or arise out of or in connection
with the breach by SLG of any representation, warranty or covenant made by it
in this Agreement or in any agreement or instrument delivered pursuant hereto.
(b) Prudential hereby agrees to indemnify, defend, protect and hold
SLG harmless from and against any and all liabilities, losses, costs, damages
and expenses (including attorneys' fees and costs incurred in the
investigation, defense and settlement of the matter) which SLG may ever
sustain, suffer or incur and which relate to, arise out of or in connection
with the breach by Prudential of any misrepresentation, warrantee or covenant
made by it in this Agreement or in any agreement or instrument pursuant
hereto.
.13 Broker's Indemnity. Each Member represents to the other Member that
it has not dealt with any broker in connection with this Agreement or any of
the transactions contemplated hereby other than Cushman & Wakefield, Inc., the
fees of which shall be paid by Prudential pursuant to a separate agreement.
Each Member agrees to indemnify the other Member and the Company and hold them
each harmless from and against all liability, loss, cost, damage and expense
(including attorneys' fees and costs incurred in the investigation, defense
and settlement of the matter) which the other Member or the Company shall
suffer or incur by reason of any claim for brokerage fees or commissions
arising as a result of a breach of the foregoing representation.
.14 Survival. The representations and warranties of SLG and Prudential
contained herein or in any agreement or instrument delivered pursuant hereto
shall survive the consummation of the transactions contemplated hereby on the
terms of such agreement or instrument.
.15 WAIVER OF JURY TRIAL. EACH MEMBER, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH.
.16 Confidentiality. The Members agree that the terms of this Agreement
are strictly confidential, and will not be communicated to any Person (other
than such counsel, accountants and advisors as such party deems necessary and
only to the extent such counsel, accountants and advisors agree to keep the
same strictly confidential and to potential third party purchasers pursuant to
Section 10.4 or Section 10.5 or potential entity level transferees not
prohibited by Section 10.1, provided that all such Persons agree in writing to
be bound by these confidentiality provisions) at any time without written
consent from the other Member or except as may be required by law and New York
Stock Exchange rules and regulations. Notwithstanding the foregoing, Members,
for themselves and their respective affiliates, agree that any disclosure
pursuant to this Section 15.16 or otherwise shall (a) exclude mention of any
of the terms of this Agreement that is not required, by law or New York Stock
Exchange rules and regulations, to be disclosed, and (b) to the fullest extent
possible, must be pre-approved by the other Member in writing. Members agree
that, notwithstanding any provision in this Agreement, the Sale Agreement or
any other agreement or document to the contrary, any damages suffered by any
party for the failure of the other party to comply with the terms of this
Section 15.16 shall be the responsibility of the party that has breached the
terms hereof.
.17 Press Releases. Neither Member shall issue any press release or public
statement (a "Release") with respect to the Company or this Agreement without
the prior written consent of the other Member (not be unreasonably withheld,
conditioned or delayed), except to the extent required by law and New York
Stock Exchange rules and regulations. Notwithstanding anything to the contrary
contained in this Section 15.17, each Member, for itself and its respective
Affiliates, agrees that any Release issued pursuant to this Section 15.17
shall, if applicable, (a) exclude mention of any of the terms of this
Agreement that is not required, by law or New York Stock Exchange rules and
regulations, to be disclosed, and (b) to the fullest extent possible, must be
pre-approved by the other Member in writing (unless in the form agreed to in
the Sale Agreement). Each Member agrees that, notwithstanding any provision in
this Agreement, the Sale Agreement or any other agreement or document to the
contrary, any damages suffered by either Member for the failure of the other
Member to comply with the terms of this Section 15.17 shall be the
responsibility of the breaching party.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by their respective duly authorized representatives as of the day
and year first above written.
MEMBER: THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
a New Jersey corporation
By:_________________________
Name: David Bradford
Title: Vice President
MEMBER: SL GREEN 100 PARK LLC,
a New York limited liability company
By: SL Green Operating Partnership,
L.P.,
a Delaware limited partnership,
its Member,
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By:______________________
Name: Benjamin P. Feldman
Title: Executive Vice President
EXHIBIT A
LEGAL DESCRIPTION
ALL that certain plot or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and
described as follows:
BEGINNING at the corner formed by the intersection of the northerly side of
East 40th Street with the westerly side of Park Avenue;
THENCE westerly along the northerly side of East 40th Street, 230 feet;
THENCE northerly and parallel with the westerly side of Park Avenue, 98 feet 9
inches to the centre line of the block;
THENCE easterly along said centre line of the block and parallel with the
northerly side of East 40th Street, 83 feet 4 inches;
THENCE northerly and again parallel with the westerly side of Park Avenue and
part of the way through a party wall, 98 feet 9 inches to the southerly side
of East 41st Street;
THENCE easterly along said southerly side of East 41st Street, 146 feet 8
inches to the westerly side of Park Avenue; and
THENCE southerly along the westerly side of Park Avenue, 197 feet 6 inches to
the point or place of BEGINNING.
EXHIBIT B
INITIAL CAPITAL ACCOUNTS
<TABLE>
<CAPTION>
Members' Names and Addresses Initial Capital Account Membership Interest
---------------------------- ----------------------- -------------------
<S> <C> <C>
1. The Prudential Insurance Company of America $40,080,000 50.1%
Prudential Asset Management Group - Real Estate
8 Campus Drive, 4th Floor
Arbor Circle South
Parsippany, New Jersey 07054
Attention: Mr. J. Allen Smith
Facsimile: (973) 683-1794
2. SL Green 100 Park LLC $39,920,000 49.9%
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Mr. Marc Holliday
Facsimile: (212) 216-1684
</TABLE>
EXHIBIT C
INITIAL MANAGEMENT AGREEMENT
EXHIBIT D
SLG'S/TRANSFEREE'S ERISA CERTIFICATION
- ------------ ---, -----
The Prudential Insurance Company of America
Prudential Real Estate Investors
PAMG-RE Law Department
8 Campus Drive, 4th Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Peter L. Ruggiero
Re: 100 Park Avenue / SLG 100 Park LLC
Gentlemen:
[Description of Transfer/Transaction]
The undersigned represents and warrants to you, in order to
comply with the Employment Retirement Income Security Act of 1974, as amended
("ERISA") [** and state statutes regarding investments of and fiduciary
obligations with respect to Governmental Plans**] (as defined in Section 3(32)
of ERISA), that:
(1) neither the undersigned nor any of its affiliates
(within the meaning of Part V(c) of Prohibited Transaction Exemption 84-14
("PTE 84-14")) has, or during the immediately preceding year has exercised,
the authority to:
(A) appoint or terminate the Prudential
Insurance Company of America ("Prudential") as investment manager of
any assets of any employee benefit plan whose assets are held by
Prudential; and
(B) negotiate the terms of any management
agreement with Prudential on behalf of any such plan;
(2) The transaction contemplated hereunder is not
specifically excluded by Part 1(b) of PTE 84-14;
(3) The undersigned is not a related party of Prudential
(as defined in Part V(b) [**or V(h)**] of PTE 84-14)
(4) The terms of the Transactions have been negotiated and
determined at arm's length, as such terms would be negotiated and determined
by unrelated parties.
[SLG/TRANSFEREE]
By:_____________________________
Name:____________________
Title:___________________
Date Executed:___________
EXHIBIT E
PRUDENTIAL'S ERISA CERTIFICATION
[Transferee Name and Address]
Re: [**100 Park Avenue/SLG 100 Park LLC]
Gentlemen:
[Description of Transaction]
The Prudential Insurance Company of America ("Prudential")
represents and warrants to you, in order to comply with the Employment
Retirement Income Security Act of 1974, as amended ("ERISA"), that:
(1) the source of funds from which Prudential [has
purchased/is purchasing] [its interest in the Company/the Property] is its
Prudential Realty Investment Separate Account I (PRISA I), which is an
investment fund within the meaning of Part V(b) of Prohibited Transaction
Exemption 84-14, as amended, granted by the U.S. Department of Labor ("PTE
84-14");
(2) Prudential is a qualified professional asset manager
("QPAM") within the meaning of Part V(a) of PTE 84-14;
(3) the terms of [Prudential's acquisition of its interest
in the Company] [the transaction described in the first paragraph of this
Certification] were negotiated on behalf of the investment fund by Prudential,
and Prudential made the decision on behalf of the investment fund to enter
into such transaction, which was not part of an agreement, arrangement or
understanding designed to benefit a party in interest (in satisfaction of the
conditions of Part I(c) of PTE 84-14);
(4) the transaction contemplated hereunder is not
specifically excluded by Part I(b) of PTE 84-14; and
(5) the conditions of Part I(e), (f) and (g) of PTE 84-14 are
satisfied.
Very truly yours,
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:_____________________________
Name:_____________________
Title:____________________
Date Executed:____________
SECOND AMENDED
AND
RESTATED
OPERATING AGREEMENT
OF
SLG 100 PARK LLC,
A DELAWARE LIMITED LIABILITY COMPANY
______________, 2000
TABLE OF CONTENTS
Page
RECITALS .......................................................1
ARTICLE 1. DEFINITIONS............................................2
1.1 Definitions................................................2
1.2 Construction...............................................9
1.3 Exhibits...................................................9
ARTICLE 2. FORMATION OF COMPANY...................................9
2.1 Members....................................................9
2.2 Name......................................................10
2.3 Registered Office.........................................10
2.4 Registered Agent; Service of Process......................10
2.5 Governing Law; Member Relations; Ownership of Property;
Taxation as a Partnership.................................10
2.6 REIT Provisions...........................................10
2.7 Purposes..................................................11
2.8 No Individual Authority...................................11
2.9 No Restrictions...........................................11
2.10 Neither Responsible for Other's Commitments...............11
2.11 Representations by Members................................11
ARTICLE 3. TERM..................................................12
3.1 Term......................................................12
3.2 Dissolution...............................................12
ARTICLE 4. CAPITAL ACCOUNTS AND CONTRIBUTIONS OF THE MEMBERS.....13
4.1 Initial Capital Accounts..................................13
4.2 No Other Contributions....................................13
4.3 No Interest Payable.......................................13
4.4 No Withdrawals............................................13
4.5 Additional Capital Contributions..........................13
4.6 Effect of Change of Percentage Interest...................15
4.7 Financing.................................................15
4.8 Adjustments in Interests Generally........................15
ARTICLE 5. LOANS BY MEMBER.......................................15
5.1 Loans.....................................................15
5.2 Payment of Special Loans and Emergency Loans..............16
ARTICLE 6. MANAGEMENT OF THE COMPANY.............................16
6.1 Regular Managing Member...................................16
6.2 Duties and Obligations of the Manager.....................18
6.3 Restrictions on Authority of the Manager..................18
6.4 Executive Committee.......................................20
6.5 Annual Budgets............................................21
6.6 Bank Accounts.............................................21
6.7 Reimbursement for Costs and Expenses......................21
6.8 Fidelity Bonds and Insurance..............................21
6.9 Accounting Management Services............................22
6.10 Property Management and Leasing Services..................23
6.11 Indemnification...........................................23
6.12 Annual Leasing Plan.......................................23
6.13 Guaranty Reimbursement Obligations........................24
6.14 Facade Remediation........................................24
ARTICLE 7. BOOKS AND RECORDS, AUDITS, TAXES, ETC.................25
7.1 Books; Statements.........................................25
7.2 Where Maintained..........................................26
7.3 Audits....................................................26
7.4 Objections to Statements..................................26
7.5 Tax Returns...............................................26
7.6 Tax Matters Partner.......................................26
7.7 Tax Policy................................................27
7.8 Section 754 Election......................................27
7.9 Capital Accounts..........................................27
7.10 Special Requirements......................................27
ARTICLE 8. FISCAL YEAR...........................................28
8.1 Calendar Year.............................................28
ARTICLE 9. DISTRIBUTIONS AND ALLOCATIONS.........................28
9.1 Certain Definitions.......................................28
9.2 Cash Flow Distributions...................................30
(d) Allocations of Accounting Items - Generally......31
9.3 Distributed Property......................................31
9.4 Nonrecourse Deductions; Nonrecourse Liabilities; Minimum
Gain Chargeback; Qualified Income Offset; Corrective
Allocations...............................................31
9.5 Allocations of Profits and Losses.........................33
9.6 Allocations for Income Tax Purposes.......................34
ARTICLE 10. ASSIGNMENT AND OFFER TO PURCHASE......................34
10.1 Transfers.................................................34
10.2 Other Assignments Void....................................36
10.3 Transfer of Entire Interest to Other Member Buy-Sell......36
10.4 Right of First Refusal....................................37
10.5 Transfer of the Property..................................38
10.6 Assumption by Assignee....................................39
10.7 General Transfer Provisions...............................40
10.8 Indemnification for Securities Laws Violations............42
10.9 Compliance with ERISA.....................................43
ARTICLE 11. DISSOLUTION OR BANKRUPTCY OF A MEMBER.................44
11.1 Dissolution or Merger.....................................44
11.2 Bankruptcy, etc...........................................45
ARTICLE 12. DEFAULT...............................................45
12.1 Defaults..................................................45
12.2 Negation of Right to Dissolve by Will of Member...........46
12.3 Not Exclusive Remedy......................................46
12.4 Waiver of Right of Partition..............................46
ARTICLE 13. DISSOLUTION...........................................46
13.1 Winding Up by Members.....................................46
13.2 Winding Up by Liquidating Member..........................47
13.3 Offset for Damages........................................47
13.4 Distributions of Operating Cash Flow......................47
13.5 Distributions of Proceeds of Liquidation..................47
13.6 Orderly Liquidation.......................................48
13.7 Financial Statements......................................48
13.8 No Restoration of Deficit Capital Accounts................48
13.9 Certificate of Cancellation...............................48
ARTICLE 14. NOTICES...............................................48
14.1 In Writing; Address.......................................48
14.2 Method....................................................51
14.3 Copies....................................................51
ARTICLE 15. MISCELLANEOUS.........................................51
15.1 Additional Documents and Acts.............................51
15.2 Estoppel Certificates.....................................51
15.3 Governing Law; Service of Process, etc....................52
15.4 Entire Agreement..........................................52
15.5 Rights and Remedies Not Mutually Exclusive................52
15.6 Severability..............................................52
15.7 Headings, etc.............................................52
15.8 Binding Effect; Benefits..................................52
15.9 Waiver, etc...............................................53
15.10 Counterparts..............................................53
15.11 Amendments................................................53
15.12 Indemnity as to Representations, etc......................53
15.13 Broker's Indemnity........................................53
15.14 Survival..................................................54
15.15 WAIVER OF JURY TRIAL......................................54
15.16 Confidentiality...........................................54
15.17 Press Releases............................................54
EXHIBIT A Legal Description
EXHIBIT B Initial Capital Accounts
EXHIBIT C Initial Management Agreement
EXHIBIT D SLG's/Transferee's ERISA Certification
EXHIBIT E Prudential's ERISA Certification
Exhibit 2.3
SLG 100 PARK LLC, as mortgagor
(Borrower)
to
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as mortgagee
(Lender)
---------------------------------
AGREEMENT OF SPREADER, CONSOLIDATION
AND MODIFICATION OF MORTGAGE
---------------------------------
Dated: As of February ____, 2000
Location: 100 Park Avenue
Section: 5
Block: 1275
Lot: 27
County: New York
State: New York
PREPARED BY AND UPON
RECORDATION RETURN TO:
O'Melveny & Myers LLP
153 East 53rd Street
New York, New York 10022
Attention: Jacqueline A. Weiss, Esq.
THIS MORTGAGE DOES NOT COVER REAL PROPERTY PRINCIPALLY IMPROVED OR TO BE
IMPROVED BY ONE OR MORE STRUCTURES CONTAINING IN THE AGGREGATE NOT MORE THAN
SIX RESIDENTIAL DWELLING UNITS, EACH DWELLING UNIT HAVING ITS OWN SEPARATE
COOKING FACILITIES.
THIS AGREEMENT OF SPREADER, CONSOLIDATION AND MODIFICATION OF MORTGAGE (this
"Agreement") is made as of the ____ day of February, 2000, by SLG 100 PARK
LLC, a Delaware limited liability company, having its principal office and
place of business at c/o SL Green Realty Corp., 420 Lexington Avenue, New
York, New York 10170, as mortgagor ("Borrower"), to THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New Jersey corporation, having an office at c/o
Prudential Real Estate Investors, 8 Campus Drive, Arbor Circle South,
Parsippany, New Jersey 07054-4493, as mortgagee (together with its successors
and assigns, "Lender").
W I T N E S S E T H:
WHEREAS, Borrower is the fee owner of that certain tract or parcel of
land more fully described in Exhibit A (the "Land") and Lender is the owner
and holder of a certain mortgage covering the fee estate of Borrower in the
Land, as more particularly described in Exhibit D attached hereto (the
"Existing Mortgage") and of the note secured thereby, as more particularly
described in Exhibit E (collectively, the "Existing Note"); and
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Borrower has executed and delivered to Lender a certain Amended,
Restated and Consolidated Mortgage Note in the aggregate principal amount of
One Hundred Twelve Million Dollars ($112,000,000.00) and interest, as more
particularly described in Exhibit F (the "Note"), which Note evidences, and
combines and consolidates into one indebtedness, all amounts presently due and
owing in respect of the Existing Note and secured by the Existing Mortgage
(the "Loan") and has a maturity date of January 31, 2002; and
WHEREAS, Borrower and Lender have agreed in the manner hereinafter
set forth to modify, amend and restate all the terms and provisions of the
Existing Mortgage, which terms and provisions are superseded in their entirety
by the terms and provisions hereof,
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated into the operative provisions of this Agreement by this
reference, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, Borrower hereby
represents and warrants to and covenants and agrees with Lender as follows:
A. Mortgage Spreader. The Existing Mortgage and the lien thereof is
hereby spread over those portions of the Property not already covered thereby,
which Property includes all of the right, title, interest and estate of
Borrower, now owned, or hereafter acquired, in and to the following property,
rights and interests (such property, rights and interests being collectively
referred to herein as the "Property"):
(i) The Land;
(ii) All buildings, structures and improvements (including
fixtures) now or later located in or on the Land ("Improvements");
(iii) All easements, estates, and interests including hereditaments,
servitudes, appurtenances, tenements, mineral and oil/gas rights, water
rights, air rights, development power or rights, options, reversion and
remainder rights, and any other rights owned by Borrower and relating to or
usable in connection with or access to the Property;
(iv) All right, title, and interest owned by Borrower in and to all
land lying within the rights-of-way, roads, or streets, open or proposed,
adjoining the Land to the center line thereof, and all sidewalks, alleys, and
strips and gores of land adjacent to or used in connection with the Property;
(v) All right, title, and interest of Borrower in, to, and under all
plans, specifications, surveys, studies, reports, permits, licenses,
agreements, contracts, instruments, books of account, insurance policies, and
any other documents relating to the use, construction, occupancy, leasing,
activity, or operation of the Property;
(vi) All of the fixtures and personal property described in Exhibit B
owned or leased by Borrower and replacements thereof, but excluding all
personal property owned by any tenant (a "Tenant") of the Property pursuant to
any of the Leases (defined below);
(vii) All of Borrower's right, title and interest in the proceeds
(including conversion to cash or liquidation claims) of (A) insurance relating
to the Property and (B) all awards made for the taking by eminent domain (or
by any proceeding or purchase in lieu thereof ) of the Property, including
awards resulting from a change of any streets (whether as to grade, access, or
otherwise) and for severance damages, including the right to make, enter into
and apply the proceeds of any settlements, judgments or compromises;
(viii) All tax refunds, including interest thereon, tax rebates, tax
credits, and tax abatements, and the right to receive the same, which may be
payable or available with respect to the Property;
(ix) All leasehold estates, ground leases, leases, subleases,
licenses, or other agreements affecting the use, enjoyment or occupancy of the
Property now or later existing (including any use or occupancy arrangements
created pursuant to Title 7 or 11 of the United States Code, as amended from
time to time, or any similar federal or state laws now or later enacted for
the relief of debtors (the "Bankruptcy Code") and all extensions and
amendments thereto (collectively, the "Leases") and all Borrower's right,
title and interest under the Leases, including all guaranties thereof and
other security or credit enhancement rights or instruments;
(x) All rents, issues, profits, royalties, receivables, use and
occupancy charges (including all oil, gas or other mineral royalties and
bonuses), income and other benefits now or later derived from any portion or
use of the Property (including any payments received with respect to any
Tenant or the Property pursuant to the Bankruptcy Code) and all cash, security
deposits, advance rentals, or similar payments relating thereto (collectively,
the "Rents") and all proceeds from the cancellation, termination, surrender,
sale or other disposition of the Leases, and the right to receive and apply
the Rents to the payment of the Obligations; and
(xi) The right, in the name and on behalf of Borrower, to appear in
and defend any action or proceeding brought with respect to the Property, and
to commence any action or proceeding to protect the interests of Lender in the
Property.
B. Assignment of Rents. Borrower hereby absolutely and unconditionally
assigns, sets over, and transfers to Lender all of Borrower's right, title,
interest and estates in and to the Leases and the Rents, subject to the terms
and license granted to the Borrower under that certain Assignment of Leases
and Rents made by Borrower to Lender dated the same date as this Instrument
(the "Assignment"), which document shall govern and control the provisions of
this assignment.
C. Outstanding Indebtedness. The aggregate outstanding indebtedness evidenced
by the Note and secured by this Instrument is in the amount of One Hundred
Twelve Million Dollars ($112,000,000.00), it being understood that no interest
under the Note is accrued and unpaid for the period prior to the date hereof,
but that interest shall accrue from and after the date hereof at the rate or
rates provided in the Note.
D. Mortgage Consolidation. The Existing Mortgage and the liens thereof, as
spread in accordance with Section A above, is hereby combined and consolidated
so that together they shall hereafter constitute in law but one mortgage, a
single lien, covering the Property and securing the aggregate principal sum of
One Hundred Twelve Million Dollars ($112,000,000.00), together with interest
thereon as provided in the Note (the Existing Mortgage, as so spread, combined
and consolidated and restated pursuant to the provisions of this Agreement,
being herein collectively referred to as the "Instrument").
E. Ratification of Note. The Note is hereby ratified and confirmed in all
respects by Borrower. All principal, interest and other sums of any nature
that may or shall become due and payable pursuant to the provisions of the
Note shall, subject to the limitations set forth in Section 1.03, constitute
part of the Obligations (defined below) secured by this Instrument.
F. No Release or Novation. This Agreement constitutes a spreader,
consolidation and modification of the Existing Mortgage and is not intended to
and shall not extinguish any of the indebtedness of Borrower under the
Existing Note, the Existing Mortgage or any other document or instrument
executed and delivered in connection therewith in such a manner as would
constitute a release or novation of the original indebtedness or obligations
of Borrower under the Existing Note, the Existing Mortgage or any of such
other documents or instruments, nor shall this Agreement affect or impair the
priority of any liens created thereby, it being the intention of the parties
hereto to preserve all liens and security interests securing payment of the
Existing Note, which liens and security interests are acknowledged by Borrower
to be valid and subsisting against the Property and any other security or
collateral for the Obligations.
G. Certain Representations. Borrower represents and warrants (i) that there
are no offsets, counterclaims or defenses against the indebtedness evidenced
by the Note or against the enforcement of this Agreement, the Instrument or
the Note, (ii) that Borrower, and the undersigned representative of Borrower,
has full power, authority and legal right to execute this Agreement and to
keep and observe all of the terms of this Agreement on Borrower's part to be
observed and performed, (iii) that the Note, the Instrument, and the Documents
(defined below) and this Agreement constitute valid and binding obligations of
Borrower, and (iv) that Borrower has no claims, counterclaims or offsets of
any nature whatsoever against Lender or any previous holder of the
indebtedness evidenced by the Note or any portion thereof.
H. Modification of Existing Mortgage. The terms, covenants and provisions of
the Existing Mortgage are hereby modified, amended and restated in their
entirety so that henceforth such terms, covenants and provisions shall be
exclusively those set forth herein, and the Existing Mortgage, as so modified,
amended and restated in their entirety, is hereby ratified and confirmed in
all respects by Borrower subject to the matters listed in Exhibit C
("Permitted Encumbrances") and the provisions of this Instrument. The numbered
sections of the Instrument and all schedules and exhibits thereto are hereby
modified, amended and restated to read the same as those set forth below.
Except as expressly provided to the contrary in the following numbered
sections, all capitalized terms used below shall have the respective meanings
ascribed to such terms in the above body of this Agreement.
IN FURTHERANCE of the foregoing, Borrower hereby warrants, represents,
covenants and agrees with Lender as follows:
ARTICLE I - OBLIGATIONS
Section 1.01 Obligations. This Instrument is executed, acknowledged, and
delivered by Borrower to secure and enforce the following obligations
(collectively, the "Obligations"):
(a) Payment of all obligations, indebtedness and liabilities under
the Documents including (i) interest at both the rate specified in the Note
and at the "Default Rate" (as defined in the Note), if applicable and to the
extent permitted by Laws (defined below), and (iii) renewals, extensions, and
amendments of the Documents;
(b) Performance of every obligation, covenant, and agreement under
the Documents including renewals, extensions, and amendments of the Documents;
and
(c) Payment of all sums advanced (including costs and expenses) by
Lender pursuant to the Documents including renewals, extensions, and
amendments of the Documents.
Section 1.02 Documents. The "Documents" shall mean this Instrument, the Note,
the Assignment, and any other written agreement executed in connection with
the closing of the Loan and by the party against whom enforcement is sought,
including those given to evidence or further secure the payment and
performance of any of the Obligations, and any written renewals, extensions,
and amendments of the foregoing, executed by the party against whom
enforcement is sought. All of the provisions of the Documents are incorporated
into this Instrument as if fully set forth in this Instrument.
Section 1.03 Maximum Secured Indebtedness. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, THE MAXIMUM AMOUNT OF PRINCIPAL INDEBTEDNESS
SECURED BY THIS INSTRUMENT AT THE TIME OF EXECUTION OR WHICH UNDER ANY
CONTINGENCY MAY HEREAFTER BECOME SECURED BY THIS INSTRUMENT AT ANY TIME IS ONE
HUNDRED TWELVE MILLION AND NO/100 DOLLARS ($112,000,000.00); PROVIDED THAT
SUCH LIMITATION SHALL NOT LIMIT THE SECURITY OF THIS INSTRUMENT WITH RESPECT
TO (A) INTEREST ON THE AFORESAID PRINCIPAL INDEBTEDNESS AT THE RATES SET FORTH
IN THE NOTE, (B) REPAYMENT TO LENDER AFTER DEFAULT AS DESCRIBED IN THIS
INSTRUMENT OF SUMS ADVANCED OR PAID FOR REAL ESTATE TAXES, CHARGES AND
ASSESSMENTS THAT MAY BE IMPOSED BY LAW UPON THE PROPERTY, (C) REPAYMENT TO
LENDER AFTER DEFAULT AS DESCRIBED IN THIS INSTRUMENT OF SUMS ADVANCED OR PAID
FOR INSURANCE PREMIUMS WITH RESPECT TO THE PROPERTY, (D) REPAYMENT TO LENDER
AFTER DEFAULT AS DESCRIBED IN THIS INSTRUMENT OF ALL REASONABLE LEGAL COSTS OR
EXPENSES OF COLLECTION OF THE DEBT SECURED BY THIS INSTRUMENT OR OF THE
DEFENSE OR PROSECUTION OF THE RIGHTS AND LIEN CREATED BY AND CONSOLIDATED IN
THIS INSTRUMENT, AND (E) REPAYMENT TO LENDER OF SUMS ADVANCED OR PAID TO WHICH
LENDER BECOMES SUBROGATED, UPON PAYMENT, UNDER RECOGNIZED PRINCIPLES OF LAW OR
EQUITY, OR UNDER EXPRESS STATUTORY AUTHORITY.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Lender as follows:
Section 2.01 Legal Status and Authority. Borrower (a) is a Delaware limited
liability company duly organized, validly existing, and in good standing and
qualified to transact business under the laws of its state of organization
("Organization State") and the State of New York; and (b) has all necessary
approvals, governmental and otherwise, and full power and authority to own its
properties (including the Property) and carry on its business.
Section 2.02 Validity of Documents. The execution, delivery and performance of
the Documents and the borrowing evidenced by the Note (a) are within the power
of Borrower and its members; (b) have been authorized by all requisite action;
(c) have received all necessary approvals and consents; (d) will not violate,
conflict with, breach, or constitute (with notice or lapse of time, or both) a
default under (i) any law, order or judgment of any court, governmental
authority, or the governing instrument of Borrower or its members or (ii) any
indenture, agreement, or other instrument to which Borrower is a party or by
which it or any of its property is bound or affected; (e) will not result in
the creation or imposition of any lien, charge, or encumbrance upon any of its
properties or assets except for those in this Instrument; and (f) will not
require any authorization, approval or license on the part of Borrower or its
members from, or any filing with, any governmental or other body (except for
the recordation of this Instrument and Uniform Commercial Code ("U.C.C.")
filings). The Documents constitute legal, valid, and binding obligations of
Borrower and its members (as applicable).
Section 2.03 Litigation. There is no action, suit, or proceeding, judicial,
administrative, or otherwise (including any condemnation or similar
proceeding), pending or, to the actual knowledge of Borrower, threatened or
contemplated against, or affecting, Borrower that would have a material
adverse affect on Borrower's ability to perform its obligations.
Section 2.04 Intentionally Omitted.
Section 2.05 Tax Status of Borrower. Borrower is not a "foreign person" within
the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder.
Section 2.06 Bankruptcy and Equivalent Value. No bankruptcy, reorganization,
insolvency, liquidation, or other proceeding for the relief of debtors has
been instituted by or against Borrower or any manager or managing member of
Borrower. Borrower has received reasonably equivalent value for granting this
Instrument.
Section 2.07 Disclosure. Borrower has disclosed to Lender all material facts
and has not failed to disclose any material fact that could cause any
representation or warranty made herein to be materially misleading. There has
been no adverse change in any condition, fact, circumstance, or event that
would make any such information materially inaccurate, incomplete or otherwise
misleading.
Section 2.08 Illegal Activity. No portion of the Property has been or will be
purchased, improved, fixtured, equipped or furnished with proceeds of any
illegal activity by Borrower.
ARTICLE III - COVENANTS AND AGREEMENTS
Borrower covenants and agrees with Lender as follows:
Section 3.01 Payment of Obligations and Defense of Liens. Borrower shall (a)
timely pay and cause to be performed the Obligations and (b) warrant and
defend the validity, enforceability and priority of the lien and security
interests created by this Instrument against all Persons.
Section 3.02 Continuation of Existence. Borrower shall not (a) dissolve,
terminate, or otherwise dispose of, directly, indirectly or by operation of
law, all or substantially all of its assets; (b) reorganize or change its
legal structure without Lender's prior written consent; (c) change its name,
address, or the name under which Borrower conducts its business without
promptly notifying Lender; or (d) do anything to cause the representations in
Section 2.02 to become untrue.
Section 3.03 Taxes and Other Charges.
(a) Payment of Assessments. Borrower shall pay when due and prior to
the date any fine, penalty, interest or charge for nonpayment may be imposed,
all taxes, liens, assessments, utility charges (public or private and
including sewer fees), ground rents, maintenance charges, dues, fines,
impositions, and public and other charges of any character (including
penalties and interest) assessed against, or which could become a lien
against, the Property ("Assessments"). Unless Borrower is making deposits per
Section 3.10, Borrower shall provide Lender with receipts evidencing such
payments (except for income taxes, franchise taxes, ground rents, maintenance
charges, and utility charges) within sixty (60) days after their due date.
(b) Right to Contest. So long as no Event of Default (defined below)
is continuing, Borrower may, prior to delinquency and at its sole expense,
contest any Assessment, but this shall not change or extend Borrower's
obligation to pay the Assessment as required above unless (i) Borrower gives
Lender prior written notice of its intent to contest an Assessment; (ii)
Borrower demonstrates to Lender's reasonable satisfaction that (A) the
Property will not be sold to satisfy the Assessment prior to the final
determination of the legal proceedings, (B) it has taken such actions as are
required or permitted to accomplish a stay of any such sale, or (C) it has
furnished a bond or surety (reasonably satisfactory to Lender in form and
amount) sufficient to prevent a sale of the Property; (iii) at Lender's
option, Borrower has deposited the full amount necessary to pay any unpaid
portion of the Assessments with Lender (provided that Lender shall not require
such a deposit if Lender or its Affiliate, in its capacity as a member of
Borrower, has consented in writing to such contest); and (iv) such proceeding
shall be permitted under any other instrument to which Borrower or the
Property is subject (whether superior or inferior to this Instrument);
provided, however, that the foregoing shall not apply to the contesting of any
income taxes, franchise taxes, ground rents, maintenance charges, and utility
charges.
(c) Documentary Stamps and Other Charges. Borrower shall pay all
taxes, assessments, charges, expenses, costs and fees, including registration
and recording fees and revenue, stamp, intangible, and any similar taxes
(collectively, the "Transaction Taxes") required in connection with the making
and/or recording of the Documents. If Borrower fails to pay the Transaction
Taxes promptly after demand therefor, Lender may (but is not obligated to) pay
these and Borrower shall reimburse Lender on demand for any amount so paid
with interest at the applicable interest rate specified in the Note, which
shall be the Default Rate unless prohibited by Laws. All such sums paid by
Lender shall, subject to the limitations in Section 1.03, be secured by this
Instrument.
(d) Changes in Laws Regarding Taxation. If any law (a) deducts from
the value of real property for the purpose of taxation any lien or encumbrance
thereon, (b) taxes mortgages or debts secured by mortgages for federal, state
or local purposes or changes the manner of the collection of any such existing
taxes, and/or (c) imposes a tax, either directly or indirectly, on any of the
Documents or the Obligations, Borrower shall, if permitted by law, pay such
tax within the statutory period or within thirty (30) days after demand by
Lender, whichever is less; provided, however, that if, in the reasonable
opinion of Lender, Borrower is not permitted by law to pay such taxes, Lender
shall have the option to declare the Obligations immediately due and payable
upon ninety (90) days' notice to Borrower.
(e) No Credits on Account of the Obligations. Borrower will not claim
or be entitled to any credit(s) on account of the Obligations for any part of
the Assessments and no deduction shall be made or claimed from the taxable
value of the Property for real estate tax purposes by reason of the Documents
or the Obligations. If such claim, credit or deduction is required by law,
Lender shall have the option in its reasonable discretion to declare the
Obligations immediately due and payable upon ninety (90) days' notice to
Borrower.
Section 3.04 Defense of Title, Litigation, and Rights under Documents.
Borrower shall forever warrant, defend and preserve Borrower's title to the
Property, the validity, enforceability and priority of this Instrument and the
lien or security interest created thereby, and any rights of Lender under the
Documents against the claims of all persons, and shall promptly notify Lender
of any such claims. Lender (whether or not named as a party to such
proceedings) is authorized and empowered (but shall not be obligated) to take
such additional steps as it may deem necessary or proper for the defense of
any such proceeding or the protection of the lien, security interest,
validity, enforceability, or priority of this Instrument, title to the
Property, or any rights of Lender under the Documents, including the
employment of counsel, the prosecution and/or defense of litigation, the
compromise, release, or discharge of such adverse claims, the purchase of any
tax title, the removal of any such liens and security interests, and any other
actions Lender deems necessary to protect its interests. Borrower authorizes
Lender to take any actions required to be taken by Borrower, or permitted to
be taken by Lender, in the Documents in the name and on behalf of Borrower.
Borrower shall reimburse Lender on demand for all expenses (including
reasonable attorneys' fees) incurred by it in connection with the foregoing
and Lender's exercise of its rights under the Documents. All such expenses of
Lender, until reimbursed by Borrower, shall be part of the Obligations, bear
interest at the applicable interest rate specified in the Note, which shall be
the Default Rate unless prohibited by Laws, and shall be secured by this
Instrument, subject to the limitations in Section 1.03.
Section 3.05 Operation and Maintenance of Property.
(a) Repair and Maintenance. Borrower will, or will cause SL Green
Management Corp. as agent of Borrower ("Agent") pursuant to that certain
Leasing and Management Agreement, dated as of the date hereof, between
Borrower, as owner, and Agent, as agent (the "LMA") to operate and maintain
the Property in good order, repair, and operating condition. Borrower will, or
will cause Agent to, promptly make or cause to be made all necessary repairs,
replacements, additions, and improvements necessary to ensure that the
Property shall not in any material way be diminished or impaired. Borrower
will not cause or allow any of the Property to be misused, wasted, or to
deteriorate in any material respect and Borrower will not abandon the
Property. No new building, structure, or other improvement shall be
constructed on the Land nor shall any material part of the Improvements be
removed, demolished, or structurally or materially altered, without Lender's
prior written consent, which consent shall be deemed automatically granted if
all members of Borrower unanimously consent to the same.
(b) Replacement of Property. Borrower will, or will cause Agent to,
keep the Property equipped and will replace all worn out or obsolete Property
with new, comparable fixtures or Property as is appropriate in the prudent
operation of the Property. Borrower will not, without Lender's prior written
consent, remove any material or significant item or items constituting a
portion of Property covered by this Instrument unless the same is replaced by
Borrower with a new, comparable article (i) owned by Borrower free and clear
of any lien or security interest (other than the Permitted Encumbrances and
those created by this Instrument) or (ii) leased by Borrower (A) with Lender's
prior written consent (provided, however that no such consent shall be
required if the members of Borrower have unanimously approved the terms of
such lease in writing) or (B) if the replaced Property was leased at the time
of execution of this Instrument.
(c) Compliance with Laws. The Property shall be maintained, used, and
operated in compliance with all (i) present and future laws, Environmental
Laws (defined below), ordinances, regulations, and requirements (including
zoning and building codes) of any governmental or quasi-governmental authority
or agency applicable to Borrower or the Property (collectively, the "Laws");
(ii) orders, rules, and regulations of any regulatory, licensing, accrediting,
insurance underwriting or rating organization, or other body exercising
similar functions; (iii) duties or obligations of any kind imposed under any
Permitted Encumbrance or by law, covenant, condition, agreement, or easement,
public or private; and (iv) policies of insurance at any time in force with
respect to the Property. If proceedings are initiated or Borrower receives
notice that it or the Property is not in compliance with any of the foregoing,
Borrower will promptly send Lender notice and a copy of the proceeding or
violation notice. If the Property is not in compliance with all Laws, Lender
may impose additional requirements upon Borrower, which may include monetary
reserves or financial equivalents.
(d) Zoning and Title Matters. Borrower shall not, without Lender's
prior written consent (unless the members of Borrower have unanimously agreed
in writing to do any of the foregoing, in which case, Lender's consent shall
be deemed granted automatically): (i) initiate or support any zoning
reclassification of the Property or variance under existing zoning ordinances;
(ii) modify or supplement any of the Permitted Encumbrances (provided that
Lender will not unreasonably withhold, delay or condition any such
modification or supplement unless the same materially adversely affects the
operation of the Property or Lender's rights hereunder); (iii) impose any
restrictive covenants or encumbrances upon the Property; (iv) execute or file
any subdivision plat affecting the Property; (v) consent to the annexation of
the Property to any municipality; (vi) permit the Property to be used by the
public or any Person in a way that might make a claim of adverse possession or
any implied dedication or easement possible; (vii) cause or permit the
Property to become a non-conforming use under zoning ordinances or any present
or future non-conforming use of the Property to be discontinued; or (viii)
fail to comply with the terms of the Permitted Encumbrances.
Section 3.06 Insurance.
(a) Casualty Insurance. Borrower shall keep the Property insured for
the benefit of Lender by (i) an "All Risk of Physical Loss" policy or the
broadest form of extended coverage endorsement in an amount sufficient to
prevent Lender from ever becoming a co-insurer under the policy or Laws, but
in no event less than the lesser of (A) the Obligations or (B) the Full
Insurable Value (defined below) of the Property, subject to verification by
Lender, and with a deductible not to exceed Twenty-Five Thousand Dollars
($25,000.00). "Full Insurable Value" shall mean the one hundred percent (100%)
replacement cost of the Property, without allowance for depreciation and
exclusive of the cost of excavations, foundations, and footings, as
determined, at Borrower's expense, periodically (but at least once per year)
by the insurance company or an appraiser, engineer, architect, or contractor
approved by said company and Lender; (ii) rent, business interruption, and/or
use and occupancy insurance in an amount equal to one (1) year's total income
from the Property including all rent, other income, and reimbursement of
operating expenses; (iii) against damage by flood if the Property is located
in an area identified by the Secretary of Housing and Urban Development, or
any successor, as an area having special flood hazards and in which flood
insurance has been made available under the Flood Acts in an amount equal to
the lesser of (A) the original amount of the Note or (B) the maximum limit of
coverage available for the Property under the Flood Acts; (iv) against damage
or loss from (A) sprinkler system leakage and (B) boilers, boiler tanks,
heating and air-conditioning equipment, pressure vessels, auxiliary piping,
and similar apparatus, in the amount required by Lender; (v) during the period
of any construction, repair, restoration, or replacement of the Property, a
standard builder's risk policy with extended coverage in an amount at least
equal to the Full Insurable Value of such Property, and worker's compensation,
in statutory amounts; and (vi) against damage or loss by earthquake and other
natural phenomenon in the amounts reasonably required by Lender.
(b) Liability and Other Insurance. Borrower shall maintain
comprehensive general liability insurance on an occurrence basis covering
Borrower and Lender, as an additional insured, against claims for bodily
injury or death or property damage occurring in, upon, or about the Property
or any street, drive, sidewalk, curb, or passageway adjacent thereto, in the
amount required by Lender (but in no event less than Ten Million Dollars
($10,000,000.00) combined single limit per occurrence, which may be based on a
combination of primary coverage plus umbrella coverage), which insurance shall
include operations and blanket contractual liability coverage which insures
contractual liability under the indemnifications set forth in Section 8.02
(but such coverage or the amount thereof shall in no way limit such
indemnifications). Upon request, Borrower shall maintain insurance or carry
additional amounts of insurance covering Borrower or the Property as Lender
shall reasonably require including against war risks.
(c) Form of Policy. All insurance required under this Section shall
be fully paid for, non-assessable, and the policies shall contain such
provisions, endorsements, and expiration dates as Lender shall reasonably
require. The policies shall be issued by insurance companies authorized to do
business in the State of New York, approved by Lender, and having (i) an
investment grade rating or claims paying ability assigned by one or more
credit rating agencies approved by Lender (a "Rating Agency") and (ii) a
general policy rating of A or better and a financial class of VI or better by
A.M. Best Company, Inc. (or if a rating of A.M. Best Company, Inc. is no
longer available, a similar rating from a similar or successor service). In
addition, all policies shall (x)include a standard Lender clause, without
contribution, in the name of Lender and (y) provide that they shall not be
canceled, amended, or materially altered (including reduction in the scope or
limits of coverage) without at least thirty (30) days' prior notice to Lender.
(d) Original Policies. Borrower shall deliver to Lender (i) original
or certified copies of all policies (and renewals) required under this Section
and (ii) receipts evidencing payment of all premiums on such policies at least
thirty (30) days prior to their expiration. If original and renewal policies
are unavailable or if coverage is under a blanket policy, Borrower shall
deliver duplicate originals, or, if unavailable, original certificates
evidencing that such policies are in full force and effect together with
certified copies of the original policies.
(e) General Provisions. Borrower shall not carry separate or
additional insurance concurrent in form or contributing in the event of loss
with that required under this Section unless endorsed in favor of Lender as
per this Section and approved by Lender in all respects. In the event of
foreclosure of this Instrument or other transfer of title or assignment of the
Property in extinguishment, in whole or in part, of the Obligations, all
right, title, and interest of Borrower in and to all policies of insurance
then in force regarding the Property and all proceeds payable thereunder and
unearned premiums thereon shall immediately vest in the purchaser or other
transferee of the Property. No approval by Lender of any insurer shall be
construed to be a representation, certification, or warranty of its solvency.
No approval by Lender as to the amount, type, or form of any insurance shall
be construed to be a representation, certification, or warranty of its
sufficiency. Borrower shall comply with all insurance requirements and shall
not cause or permit any condition to exist which would be prohibited by an
insurance requirement or would invalidate the insurance coverage on the
Property.
(f) Insurance Approval. Notwithstanding anything contained in
this Section 3.06 to the contrary, Lender approves of the insurance
provided by Borrower as described in the certificate annexed hereto and made
a part hereof as Exhibit G.
Section 3.07 Damage and Destruction of Property.
(a) Borrower's Obligations. If any damage to, loss, or destruction of
the Property occurs (any "Damage"), (i) Borrower shall promptly notify Lender
and take all necessary steps to preserve any undamaged part of the Property
and (ii) if the insurance proceeds are made available for Restoration (defined
below) (but regardless of whether any proceeds are sufficient for
Restoration), Borrower shall promptly commence and diligently pursue to
completion the restoration, replacement, and rebuilding of the Property as
nearly as possible to its value and condition immediately prior to the Damage
or a Taking (defined below) in accordance with plans and specifications
approved by Lender in its reasonable discretion ("Restoration"). Borrower
shall comply with other reasonable requirements established by Lender to
preserve the security under this Instrument.
(b) Lender's Rights. If any Damage occurs and some or all of it is
covered by insurance, then (i) Lender may, but is not obligated to, make proof
of loss if not made promptly by Borrower and Lender is authorized and
empowered by Borrower to settle, adjust, or compromise any claims for the
Damage (and Borrower hereby irrevocably appoints and constitutes Lender as
Borrower's attorney-in-fact coupled with an interest and with full power of
substitution for such purpose, provided that, Lender shall not exercise its
rights under such power of attorney unless an Event of Default shall have
occurred); (ii) each insurance company concerned is authorized and directed to
make payment directly to Lender for the Damage; and (iii) Lender may apply the
insurance proceeds in any order it determines (A) to reimburse Lender for all
Costs (defined below) related to collection of the proceeds and (B) subject to
Section 3.07(c) and at Lender's option, to (1) payment of all or part of the
Obligations, whether or not then due and payable, in the order determined by
Lender (provided that if any Obligations remains outstanding after this
payment, the unpaid Obligations shall continue in full force and effect and
Borrower shall not be excused in the payment thereof); (2) the cure of any
default under the Documents; or (3) the Restoration. Any insurance proceeds
held by Lender shall be held, to the extent easily accomplishable by Lender,
in an interest bearing account in a financial institution reasonably
acceptable to Lender with all interest thereon to be deemed part of the
insurance proceeds and applied in accordance with this Section 3.07. If
Borrower receives any insurance proceeds for the Damage, Borrower shall
promptly deliver the proceeds to Lender. Notwithstanding anything in this
Instrument or at law or in equity to the contrary, none of the insurance
proceeds paid to Lender shall be deemed trust funds and Lender may dispose of
these proceeds as provided in this Section. Borrower expressly assumes all
risk of loss from any Damage, whether or not insurable or insured against.
(c) Application of Proceeds to Restoration. Notwithstanding anything
contained herein to the contrary, Lender shall make the Net Proceeds (defined
below) available to Borrower for Restoration if: (i) there shall then be no
Event of Default; (ii) Lender shall be satisfied in the exercise of its
reasonable judgment that (A) Restoration can and will be substantially
completed within one (1) year after the Damage occurs and at least six (6)
months prior to the maturity of the Note, and (B) Leases that are terminated
or terminable as a result of the Damage cover an aggregate of less than fifty
(50%) of the total rentable square footage contained in the Property or such
Tenants agree in writing to continue their Leases; (iii) Borrower shall have
entered into a general construction contract reasonably acceptable to Lender
for Restoration (which contract shall automatically be deemed acceptable if
the contract has been unanimously approved by the members of Borrower in
writing); and (iv) in Lender's reasonable judgment, after Restoration has been
completed the net cash flow of the Property will be sufficient to cover the
operating expenses of the Property, including payments due and reserves
required under the Documents. Notwithstanding any provision of this Instrument
to the contrary, Lender shall not be obligated to make any portion of the Net
Proceeds available for Restoration unless, at the time of the disbursement
request, Lender has determined, in its reasonable discretion, that (y)
Restoration can be completed at a cost that does not exceed the aggregate of
the remaining Net Proceeds and any funds deposited with Lender by Borrower
("Additional Funds") (provided that the failure of Lender or any Affiliate of
Lender, acting in its capacity as a member of Borrower only, to provide funds
to Borrower for such deposit pursuant to the terms of Borrower's operating
agreement shall not under any circumstances result in Lender's determination
that there are not sufficient Additional Funds) and (z) the aggregate of any
loss of rental income insurance proceeds that the carrier has acknowledged to
be payable ("Rent Loss Proceeds"), the sums payable by tenants pursuant to
their respective Leases, and any funds deposited with Lender by Borrower are
sufficient to cover all costs and operating expenses of the Property,
including payments due and reserves required under the Documents.
(d) Disbursement of Proceeds. If Lender elects or is required to make
insurance proceeds available for Restoration, Lender shall, through a
disbursement procedure reasonably established by Lender, periodically make
available to Borrower in installments the net amount of all insurance proceeds
received by Lender after deduction of all reasonable costs and expenses
incurred by Lender in connection with the collection and disbursement of such
proceeds ("Net Proceeds") and, if any, the Additional Funds. The amounts
periodically disbursed to Borrower shall be based upon the amounts currently
due under the construction contract for Restoration and if requested by
Lender, Lender's receipt of (i) appropriate lien waivers, (ii) a certification
of the percentage of Restoration completed by an architect or engineer
acceptable to Lender, and (iii) title insurance protection against
materialmen's and mechanic's liens. At Lender's election, the disbursement of
funds may be handled by a disbursing agent selected by Lender, and such
agent's reasonable fees and expenses shall be paid by Borrower. The Net
Proceeds, Rent Loss Proceeds, and any Additional Funds shall constitute
additional security for the Loan and Borrower shall execute, deliver, file
and/or record, at its expense, such instruments as Lender requires to grant to
Lender a perfected, first-priority security interest in these funds. If the
Net Proceeds are made available for Restoration and (A) Borrower refuses or
fails to complete the Restoration, (B) an Event of Default occurs, or (C) the
Net Proceeds or Additional Funds are not applied to Restoration, then any
undisbursed portion may, at Lender's option, be applied to the Obligations in
any order of priority Lender deems appropriate.
(e) Real Property Law Section 254. The provisions of subsection 4 of
Section 254 of the Real Property Law of New York covering the insurance of
buildings against loss by fire that are inconsistent with the provisions of
this Mortgage shall not apply to the terms of this Mortgage. Nothing contained
herein, except for the immediately preceding sentence, shall be construed as
depriving Lender of any right or advantage available under Section 254 of the
Real Property Law of the State of New York, and all covenants herein that
differ therefrom shall be construed as conferring additional and not
substitute rights and advantages.
Section 3.08 Condemnation.
(a) Borrower's Obligations. Borrower will promptly notify Lender of
any threatened or instituted proceedings for the condemnation or taking by
eminent domain of the Property including any change in any street, whether as
to grade, access, or otherwise (a "Taking"). Borrower shall, at its expense,
(i) diligently prosecute these proceedings, (ii) deliver to Lender copies of
all papers served in connection therewith, and (iii) consult and cooperate
with Lender in the handling of these proceedings. No settlement of these
proceedings shall be made by Borrower without Lender's prior written consent.
Lender may participate in these proceedings (but shall not be obligated to do
so) and Borrower will sign and deliver all instruments requested by Lender to
permit this participation.
(b) Lender's Rights to Proceeds. All condemnation awards, judgments,
decrees, or proceeds of sale in lieu of condemnation ("Award") are assigned
and shall be paid to Lender. Borrower authorizes Lender to collect and receive
them, to give receipts for them, to accept them in the amount received without
question or appeal, and/or to appeal any judgment, decree, or award. Borrower
will sign and deliver all instruments requested by Lender to permit these
actions.
(c) Application of Award. Lender shall have the right to hold and
apply any Award, subject to Section 3.08(d), as per Section 3.07 for insurance
proceeds held by Lender. If Borrower receives any Award, Borrower shall
promptly deliver them to Lender. Notwithstanding anything in this Instrument
or at law or in equity to the contrary, none of the Award paid to Lender shall
be deemed trust funds and Lender may dispose of these proceeds as provided in
this Section.
(d) Application of Award to Restoration. With respect to any portion
of the Award that is not for loss of value or property, Lender shall permit
the application of the Award to Restoration in accordance with and subject to
the provisions of Section 3.07 if: (i) no more than (A) twenty (20%) of the
gross area of the Improvements is affected by the Taking, (ii) the amount of
the loss does not exceed twenty percent (20%) of the original amount of the
Note; (iii) the Taking does not bar access to the Property from all public
rights-of-way; (iv) there is no Event of Default at the time of application.
Any portion of the Award that is (1) for loss of value or property or (2) in
excess of the cost of any Restoration permitted above, may, in Lender's sole
discretion, be applied against the Obligations or paid to Borrower.
(e) Effect on the Obligations. Notwithstanding any Taking, Borrower
shall continue to pay and perform the Obligations as provided in the
Documents. Any reduction in the Obligations due to application of the Award
shall take effect only upon Lender's actual receipt and application of the
Award to the Obligations. If the Property shall have been foreclosed, sold
pursuant to any power of sale granted hereunder, or transferred by
deed-in-lieu of foreclosure prior to Lender's actual receipt of the Award,
Lender may apply the Award received to the extent of any deficiency upon such
sale and Costs incurred by Lender in connection with such sale.
Section 3.09 Lien and Liabilities. (a) Borrower shall pay, bond, or otherwise
discharge all claims and demands of mechanics, materialman, laborers, and
others which, if unpaid, might result in a lien or encumbrance on the Property
or the Rents (collectively, "Liens") and Borrower shall, at its sole expense,
do everything necessary to preserve the lien and security interest created by
this Instrument and its priority; subject to Borrower's right to contest any
such claims or demands subject to and in accordance with the provisions of
Subsection (b) of this Section 3.09. Nothing in the Documents shall be deemed
or construed as constituting the consent or request by Lender, express or
implied, to any contractor, subcontractor, laborer, mechanic or materialman
for the performance of any labor or the furnishing of any material for any
improvement, construction, alteration, or repair of the Property. Borrower
further agrees that Lender does not stand in any fiduciary relationship to
Borrower. Any contributions made, directly or indirectly, to Borrower by or on
behalf of any of its members (other than Lender in its capacity as Lender),
shall be treated as equity and shall be subordinate and inferior to the rights
of Lender under the Documents.
(b) Right to Contest. So long as no Event of Default is continuing,
Borrower may, prior to delinquency and at its sole expense, contest any claim
or demand made by any mechanic, materialman or laborer, but this shall not
change or extend Borrower's obligation to pay or satisfy such claim or demand
as required above unless (i) Borrower gives Lender prior written notice of its
intent to contest the claim or demand; (ii) Borrower demonstrates to Lender's
reasonable satisfaction that (1) the Property will not be sold to satisfy the
claim or demand prior to the final determination of the legal proceedings, (2)
it has furnished a bond or surety (reasonably satisfactory to Lender in form
and amount) sufficient to prevent the imposition of any lien or a sale of the
Property; (iii) at Lender's option, Borrower has deposited the full amount
necessary to pay any unpaid portion of the claim with Lender (provided that
Lender shall not require such a deposit if Lender or its Affiliate, in its
capacity as a member of Borrower only, has consented in writing to such
contest); and (iv) such proceeding shall be permitted under any other
instrument to which Borrower or the Property is subject (whether superior or
inferior to this Instrument).
Section 3.10 Tax and Insurance Deposits. At Lender's option following the
occurrence of an Event of Default, Borrower shall make monthly deposits
("Deposits") with Lender equal to one-twelfth (1/12) of the annual Assessments
(except for income taxes, franchise taxes, ground rents, maintenance charges
and utility charges) and the premiums for insurance required under Section
3.06 (the "Insurance Premiums") together with amounts sufficient to pay these
items thirty (30) days before they are due (collectively, the " Impositions").
Lender shall, in its reasonable discretion, estimate the amount of the
Deposits until ascertainable. At that time, Borrower shall promptly deposit
any deficiency. Borrower shall promptly notify Lender of any changes to the
amounts, schedules and instructions for payment of the Impositions. Borrower
authorizes Lender or its agent to obtain the bills for Assessments directly
from the appropriate tax or governmental authority. All Deposits are pledged
to Lender and shall constitute additional security for the Obligations. The
Deposits shall be held by Lender without interest (except to the extent
required under Laws) and may be commingled with other funds. If (a) there is
no Event of Default at the time of payment, (b) Borrower has delivered bills
or invoices to Lender for the Impositions in sufficient time to pay them when
due, (c) the Deposits are sufficient to pay the Impositions or Borrower has
deposited the necessary additional amount, then Lender shall pay the
Impositions prior to their due date. Any Deposits remaining after payment of
the Impositions shall, at Lender's option, be credited against the Deposits
required for the following year or paid to Borrower. If an Event of Default
occurs, the Deposits may, at Lender's option, be applied to the Obligations in
any order of priority. Borrower shall not claim any credit against the
principal and interest due under the Note for the Deposits. Upon an assignment
or other transfer of this Instrument, Lender may pay over the Deposits in its
possession to the assignee or transferee and then it shall be completely
released from all liability with respect to the Deposits. Borrower shall look
solely to the assignee or transferee with respect thereto. This provision
shall apply to every transfer of the Deposits to a new assignee or transferee.
Subject to Article V, a transfer of title to the Land shall automatically
transfer to the new owner the beneficial interest in the Deposits. Upon full
payment and satisfaction of this Instrument or, at Lender's option, at any
prior time, the balance of the Deposits in Lender's possession shall be paid
over to the record owner of the Land and no other party shall have any right
or claim to the Deposits. Lender may transfer all its duties under this
Section to such servicer or financial institution as Lender may periodically
designate and Borrower agrees to make the Deposits to such servicer or
institution.
Section 3.11 ERISA. Borrower represents and warrants to Lender that (a)
Borrower has not, or during the immediately preceding year has not exercised,
the authority to appoint or terminate The Prudential Insurance Company of
America ("Prudential") as investment manager of any assets of the employee
benefit plans whose assets are invested in the separate account (the
"Account") that is the source of funds used by Lender to make the Loan, or to
negotiate the terms of any management agreement between Prudential and such
plan in connection with its investments in the Account; and (b) Borrower
qualifies as an "operating company" or a "real estate operating company"
within the meaning of 29 C.F.R. Section 2510.3-101(c). Borrower shall deliver
to Lender such certifications and/or other evidence periodically requested by
Lender, in its sole discretion, to verify these representations and
warranties. Failure to deliver these certifications or evidence, breach of
these representations and warranties, or consummation of any transaction which
would cause this Instrument or any exercise of Lender's rights under this
Instrument to (i) constitute a non-exempt prohibited transaction under ERISA
or (ii) violate ERISA or any state statute regulating governmental plans
(collectively, a "Violation"), shall be an Event of Default. Notwithstanding
anything in the Documents to the contrary, no sale, assignment, or transfer of
any direct or indirect right, title, or interest in Borrower or the Property
(including creation of a junior lien, encumbrance or leasehold interest) shall
be permitted that would, in Lender's opinion, negate Borrower's
representations in this Section or cause a Violation. At least fifteen (15)
days before consummation of any of the foregoing, Borrower shall obtain from
the proposed transferee or lienholder (A) a certification to Lender that the
representations and warranties of this Section will be true after consummation
and (B) an agreement to comply with this Section.
Section 3.12 Environmental Representations, Warranties and Covenants.
(a) Environmental Representations and Warranties. Borrower represents
and warrants, to Borrower's actual knowledge, exclusive of any knowledge of
Lender or Lender's Affiliate in its capacity solely as a member of Borrower or
as prior owner of the Property, as applicable, based upon the environmental
site assessment report of the Property (the "Environmental Report"), that
except as otherwise known to Lender or Lender's Affiliate solely in its
capacity as a member of Borrower or as prior owner of the Property, as
applicable, or as disclosed in the Environmental Report delivered to and
approved by Lender: (i) there are no Hazardous Materials (defined below) or
underground storage tanks affecting the Property ("affecting the Property"
shall mean "in, on, under, stored, used or migrating to or from the Property")
except for (A) routine office, cleaning, janitorial and other materials and
supplies necessary to operate the Property for its current use and (B)
Hazardous Materials that are (1) in compliance with Environmental Laws
(defined below), (2) have all required permits, and (3) are in the amounts
necessary to operate the Property; (ii) there are no past, present or
threatened Releases (defined below) of Hazardous Materials in violation of any
Environmental Law affecting the Property; (iii) there is no present
non-compliance with Environmental Laws or with permits issued pursuant
thereto; and (iv) Borrower has not received any written notice or
communication from any person relating to Hazardous Materials affecting the
Property. "Environmental Law" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations, standards, policies and
other government directives or requirements, as well as common law, that apply
to Borrower or the Property and relate to Hazardous Materials including the
Comprehensive Environmental Response, Compensation and Liability Act and the
Resource Conservation and Recovery Act. "Hazardous Materials" shall mean
petroleum and petroleum products and compounds containing them, including
gasoline, diesel fuel and oil; explosives, flammable materials; radioactive
materials; polychlorinated biphenyls ("PCBs") and compounds containing them;
lead and lead-based paint; asbestos or asbestos-containing materials in any
form that is or could become friable; underground or above-ground storage
tanks, whether empty or containing any substance; any substance the presence
of which on the Property is prohibited by any federal, state or local
authority; any substance that requires special handling; and any other
material or substance now or in the future defined as a "hazardous substance,"
"hazardous material", "hazardous waste", "toxic substance", "toxic pollutant",
"contaminant", or "pollutant" within the meaning of any Environmental Law.
"Release" of any Hazardous Materials includes any release, deposit, discharge,
emission, leaking, spilling, seeping, migrating, pumping, pouring, escaping,
dumping, disposing or other movement of Hazardous Materials.
(b) Environmental Covenants. Borrower covenants and agrees that: (i)
all use and operation of the Property shall be in compliance with all
Environmental Laws and required permits; (ii) there shall be no Releases of
Hazardous Materials affecting the Property; (iii) there shall be no Hazardous
Materials affecting the Property except (A) routine office, cleaning and
janitorial supplies, (B) in compliance with all Environmental Laws, (C) with
all required permits, and (D) (1) in only the amounts necessary to operate the
Property or (2) fully disclosed to and approved by Lender in writing; (iv)
Borrower shall keep the Property free and clear of all liens and encumbrances
imposed by any Environmental Laws due to any act or omission by Borrower or
any person (the "Environmental Liens"); (v) Borrower shall, at its sole
expense, fully and expeditiously cooperate in all activities in Section
3.12(c) including providing all relevant information and making knowledgeable
persons available for interviews; (vi) Borrower shall, at its sole expense,
(A) perform any environmental site assessment or other investigation of
environmental conditions at the Property upon Lender's request based on
Lender' s reasonable belief that the Property is not in compliance with all
Environmental Laws, (B) share with Lender the results and reports and Lender
and the Indemnified Parties (defined below) shall be entitled to rely on such
results and reports, and (C) complete any remediation of Hazardous Materials
affecting the Property or other actions required by any Environmental Laws;
(vii) Borrower shall not allow any Tenant or other user of the Property to
violate any Environmental Law; and (viii) Borrower shall immediately notify
Lender in writing after it becomes aware of (A) the presence, Release, or
threatened Release of Hazardous Materials affecting the Property, (B) any
non-compliance of the Property with any Environmental Laws, (C) any actual or
potential Environmental Lien, (D) any required or proposed remediation of
environmental conditions relating to the Property, and (E) any written
communication or notice from any person relating to Hazardous Materials.
(c) Lender's Rights. Lender and any Person designated by Lender may
enter the Property at reasonable times upon reasonable advance notice to
assess the environmental condition of the Property and its use including (i)
conducting any environmental assessment or audit (the scope of which shall be
determined by Lender) and (ii) taking samples of soil, groundwater or other
water, air, or building materials, and conducting other invasive testing at
all reasonable times when (A) an Event of Default has occurred under the
Documents, (B) Lender reasonably believes that a Release has occurred or the
Property is not in substantial compliance with all Environmental Laws, or (C)
the Loan is being considered for sale. Borrower shall cooperate with and
provide access to Lender and such Person, and Lender shall use reasonable
efforts to minimize interference with Tenants under their respective Leases.
Section 3.13 Electronic Payments. All payments due under the Documents shall
be made by electronic funds transfer from a bank account established and
maintained by Borrower for this purpose with a depository reasonably
satisfactory to Lender. Borrower shall direct the depository to transmit such
payments on or before their respective due dates to an account designated in
writing by Lender. Lender shall have the right to require Borrower to select a
different depository after thirty (30) days' prior notice. All costs of (a)
establishing and maintaining such account and (b) the electronic funds
transfers shall be paid by Borrower.
Section 3.14 Inspection. Subject to the provisions of Section 3.12(c) with
respect to environmental conditions, Borrower shall allow Lender and any
Person designated by Lender to enter upon the Property and conduct tests or
inspect the Property at all reasonable times upon reasonable notice; provided
that, Lender shall use all reasonable efforts to minimize interference with
Tenants under their respective Leases. Borrower shall assist Lender and such
Person in effecting such inspection.
Section 3.15 Records, Reports, and Audits.
(a) Records and Reports. Borrower shall maintain such records and
reports as shall be required pursuant to Borrower's operating agreement.
(b) Inspection of Records. Borrower shall allow Lender or any Person
designated by Lender to examine, audit, and make copies of all such books and
records and all supporting data at the place where these items are located at
all reasonable times after reasonable advance notice.
Section 3.16 Borrower's Certificates. Within ten (10) days after Lender's
request, Borrower shall furnish a written certification to Lender as to (a)
the amount of the Obligations outstanding; (b) the interest rate, terms of
payment, and maturity date of the Note; (c) the date to which payments have
been paid under the Note; (d) whether any offsets or defenses exist against
the Obligations and a detailed description of any listed; (e) whether there
are any events that with the passage of time and/or notice would constitute a
default on Lender's part or to the knowledge of Borrower on Borrower's part
under the Documents and a detailed description of any listed; (f) whether the
Documents are in full force and effect; and (g) any other matters reasonably
requested by Lender related to the Leases, the Obligations, the Property, or
the Documents. Promptly upon Lender's request, Borrower shall use reasonable
efforts to deliver a written certification to Lender from Tenants specified by
Lender that: (a) their Leases are in full force and effect; (b) there are no
defaults (or events which with the passage of time and/or notice would
constitute a default) under their Leases or a detailed description of any
listed; (c) none of the Rents have been paid more than one month in advance;
(d) there are no offsets or defenses against the Rents or a detailed
description of any listed; and (e) any other matters reasonably requested by
Lender related to the Leases; provided, however, that Borrower shall not be
required to obtain an estoppel certificate from any Tenant that is
substantially different than as is required by such Tenant's Lease.
Section 3.17 Full Performance Required, Survival of Warranties. All
representations and warranties of Borrower made in any Documents in connection
with the Loan shall survive the execution and delivery of the Documents and
shall remain continuing warranties, and representations of Borrower until the
Loan is repaid in full.
Section 3.18 Additional Security. No other security now existing or taken
later to secure the Obligations shall be affected by the execution of the
Documents and all additional security shall be held as cumulative. The taking
of additional security, execution of partial releases, or extension of the
time of payment obligations of Borrower shall not diminish the effect and lien
of this Instrument and shall not affect the liability or obligations of any
maker or guarantor. Neither the acceptance of the Documents nor their
enforcement shall prejudice or affect Lender's right to realize upon or
enforce any other security now or later held by Lender. Lender may enforce the
Documents or any other security in such order and manner as it may determine
in its discretion.
Section 3.19 Further Acts. Borrower shall take all necessary actions to (a)
keep valid and effective the lien and rights of Lender under the Documents and
(b) protect the lawful owner of the Documents. Promptly upon request by Lender
and at Borrower's expense, Borrower shall execute additional instruments and
take such actions as Lender reasonably believes are necessary or desirable to
(i) maintain or grant Lender a first-priority, perfected lien on the Property,
(ii) correct any error or omission in the Documents, and (iii) effect the
intent of the Documents, including filing/recording the Documents, additional
mortgages, financing statements, and other instruments.
ARTICLE IV - ADDITIONAL ADVANCES; EXPENSES; SUBROGATION
Section 4.01 Expenses and Advances. Borrower shall pay all reasonable
appraisal, recording, filing, registration, brokerage, abstract, title
insurance (including premiums), U.C.C. search, escrow, attorneys' (both
in-house staff and retained attorneys), engineers', environmental engineers',
environmental testing, and architects' fees, costs (including travel),
expenses, and disbursements actually incurred by Borrower or Lender in
connection with the granting, closing, servicing, and enforcement of (a) the
Loan and Documents or (b) attributable to Borrower as owner of the Property.
The term "Costs" shall mean any of the foregoing incurred in connection with
(a) any default by Borrower under the Documents, (b) the servicing of the
Loan, or (c) the enforcement following the occurrence of an event that with
the giving of notice or passage of time or both would constitute an Event of
Default, reasonable exercise, compromise, defense, litigation, or settlement
of any of Lender's rights or remedies under the Documents or relating to the
Loan or the Obligations.
Section 4.02 Subrogation. If any proceeds of the Note were used to extinguish,
extend or renew any indebtedness on the Property, then, to the extent of the
funds so used and the fullest extent permitted under applicable law, (a)
Lender shall be subrogated to all rights, claims, liens, titles and interests
existing on the Property held by the holder of such indebtedness and (b) these
rights, claims, liens, titles and interests are not waived but rather shall
(i) continue in full force and effect in favor of Lender and (ii) are merged
with the lien and security interest created by the Documents as cumulative
security for the payment and performance of the Obligations.
ARTICLE V - SALE, TRANSFER, OR ENCUMBRANCE OF THE PROPERTY
Section 5.01 Due-on-Sale or Encumbrance. It shall be an Event of Default and,
at the sole option of Lender, Lender may accelerate the Obligations and the
entire Obligations shall become immediately due and payable, if Borrower,
without Lender's prior written consent (which may be withheld for any or no
reason), (a) shall sell, convey, assign, transfer, dispose of or be divested
of its title to , convey security title to the Property, mortgage, encumber or
cause to be encumbered (except for the imposition of mechanics' or
materialmans' liens) the Property or any interest therein, in any manner or
way, whether voluntary or involuntary, except in a manner in strict compliance
with the terms of Borrower's operating agreement, or (b) in the event of the
transfer, pledge, voluntary or involuntary sale, or encumbrance (or any of the
foregoing at one time or over any period of time) of all or any interest in
Borrower or any member of Borrower (other than an Affiliate of Lender), except
in a manner in strict compliance with the terms of Borrower's operating
agreement.
ARTICLE VI - DEFAULTS AND REMEDIES
Section 6.01 Events of Default. The following shall be an "Event of Default":
(a) if Borrower fails to make any payment required under the
Documents when due and such failure continues for five (5) days after written
notice; provided, however, that if Lender gives one (1) notice of default
within any twelve (12) month period, Borrower shall have no further right to
any notice of monetary default during that twelve (12) month period;
(b) except for defaults listed in the other subsections of this
Section 6.01, if Borrower fails to perform or comply with any other provision
contained in the Documents and the default is not cured within thirty (30)
days (the "Grace Period"); provided, however, that the Grace Period shall be
extended up to an additional one hundred twenty (120) days (for a total of one
hundred fifty (150) days from the date of default) if (i) Borrower immediately
commences and diligently pursues the cure of such default and delivers (within
the Grace Period) to Lender a written request for more time and (ii) (A) such
default cannot be cured within the Grace Period but it is reasonably estimated
by Lender in good faith that same can be cured within one hundred fifty (150)
days after the default, (B) no lien or security interest created by the
Documents will be materially impaired prior to completion of such cure, and
(C) Lender's immediate exercise of any remedies provided hereunder or by law
is not necessary for the protection or preservation of the Property or
Lender's security interest;
(c) if any default under Article V occurs and the event giving rise
to such default is not voided or rescinded to Lender's reasonable satisfaction
within five (5) days after written notice of the same;
(d) if Borrower shall (i) become insolvent, (ii) make a transfer in
fraud of creditors, (iii) make an assignment for the benefit of its creditors,
(iv) not be able to pay its debts as such debts become due, or (v) admit in
writing its inability to pay its debts as they become due;
(e) if any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding, or any other proceedings for the relief of debtors, is
instituted by or against Borrower by any Person other than Lender in its
capacity as Lender, and, if instituted against Borrower, is allowed, consented
to, or not dismissed within the earlier to occur of (i) ninety (90) days after
such institution or (ii) the filing of an order for relief;
(f) if any of the events in Sections 6.01 (d) or (e) shall occur with
respect to any (i) managing member of Borrower, (ii) member in such managing
member of Borrower, or (iii) member or general partner of the entity referred
to in Section 6.01(f)(ii);
(g) if the Property shall be taken, attached, or sequestered on
execution or other process of law in any action against Borrower except as may
be otherwise permitted by the Documents; or
(h) if Borrower shall fail at any time to obtain, maintain, renew, or
keep in force the insurance policies required by Section 3.06 within thirty
(30) days after written notice;
(i) if Borrower shall be in default beyond applicable grace and cure
periods of any material provision of any other mortgage or security agreement
covering any part of the Property, whether it be superior or junior in lien to
this Instrument;
(j) if any claim of priority (except based upon a Permitted
Encumbrance) to the Documents by title, lien, or otherwise shall be upheld by
any court of competent jurisdiction or shall be consented to by Borrower; or
(k) (i) the consummation by Borrower of any transaction that would
cause (A) the Loan or any exercise of Lender's rights under the Documents to
constitute a non-exempt prohibited transaction under ERISA or (B) a violation
of a state statute regulating governmental plans; (ii) the failure of any
representation in Section 3.11 to be true and correct in all respects; or
(iii) the failure of Borrower to provide Lender with the written
certifications required by Section 3.11.
Section 6.02 Remedies. If an Event of Default occurs, Lender or any person
designated by Lender may (but shall not be obligated to) take any action
(separately, concurrently, cumulatively, and at any time and in any order)
permitted under any Laws, without notice, demand, presentment, or protest (all
of which are hereby waived), to protect and enforce Lender's rights under the
Documents or Laws including the following actions:
(a) accelerate and declare the entire unpaid Obligations immediately
due and payable, except for defaults under Sections 6.01 (e), (f), or (g)
which shall automatically make the Obligations immediately due and payable;
(b) judicially or otherwise, (i) completely foreclose this Instrument
or (ii) partially foreclose this Instrument for any portion of the Obligations
due and the lien and security interest created by this Instrument shall
continue unimpaired and without loss of priority as to the remaining
Obligations not yet due;
(c) sell for cash or upon credit the Property and all right, title
and interest of Borrower therein and rights of redemption thereof, pursuant to
power of sale;
(d) recover judgment on the Note either before, during or after any
proceedings for the enforcement of the Documents and without any requirement
of any action being taken to (i) realize on the Property or (ii) otherwise
enforce the Documents;
(e) seek specific performance of any provisions in the Documents;
(f) apply for the appointment of a receiver, custodian, trustee,
liquidator, or conservator of the Property without (i) notice to any Person,
(ii) regard for (A) the adequacy of the security for the Obligations or (B)
the solvency of Borrower or any person liable for the payment of the
Obligations; and Borrower and any Person so liable waives or shall be deemed
to have waived the foregoing and any other objections to the fullest extent
permitted by Laws and consents or shall be deemed to have consented to such
appointment;
(g) with or without entering upon the Property, (i) exclude Borrower
and any person from the Property without liability for trespass, damages, or
otherwise; (ii) take possession of, and Borrower shall surrender on demand,
all books, records, and accounts relating to the Property; (iii) give notice
to Tenants or any person, make demand for, collect, receive, sue for, and
recover in its own name all Rents and cash collateral derived from the
Property; (iv) use, operate, manage, preserve, control, and otherwise deal
with every aspect of the Property including (A) conducting its business, (B)
insuring it, (C) making all repairs, renewals, replacements, alterations,
additions, and improvements to or on it, (D) completing the construction of
any Improvements in manner and form as Lender deems advisable, and (E)
executing, modifying, enforcing, and terminating new and existing Leases on
such terms as Lender deems advisable and evicting any Tenants in default; (v)
apply the receipts from the Property to payment of the Obligations, in any
order or priority determined by Lender, after first deducting all Costs,
expenses, and liabilities incurred by Lender in connection with the foregoing
operations and all amounts needed to pay the Impositions and other expenses of
the Property, as well as just and reasonable compensation for the services of
Lender and its attorneys, agents, and employees; and/or (vi) in every case in
connection with the foregoing, exercise all rights and powers of Borrower or
Lender with respect to the Property, either in Borrower's name or otherwise;
(h) release any portion of the Property for such consideration, if
any, as Lender may require without, as to the remainder of the Property,
impairing or affecting the lien or priority of this Instrument or improving
the position of any subordinate lienholder with respect thereto, except to the
extent that the Obligations shall have been actually reduced, and Lender may
accept by assignment, pledge, or otherwise any other property in place thereof
as Lender may require without being accountable for so doing to any other
lienholder;
(i) apply any Deposits to the following items in any order and in
Lender's sole discretion: (i) the Obligations, (ii) Costs, (iii) advances made
by Lender under the Documents, and/or (iv) Impositions;
(j) take all actions permitted under the U.C.C. in effect in New York
from time to time, including (i) the right to take possession of all tangible
and intangible personal property included within the Property ("Personal
Property") and take such actions as Lender deems advisable for the care,
protection and preservation of the Personal Property and (ii) request Borrower
at its expense to assemble the Personal Property and make it available to
Lender at a convenient place acceptable to Lender. Any notice of sale,
disposition or other intended action by Lender with respect to the Personal
Property sent to Borrower at least five (5) days prior to such action shall
constitute commercially reasonable notice to Borrower; or
(k) take any other action permitted under any Laws.
If Lender exercises any of its rights under Section 6.02(g), Lender shall not
(a) be deemed to have entered upon or taken possession of the Property except
upon the exercise of its option to do so, evidenced by its demand and overt
act for such purpose; (b) be deemed a beneficiary or mortgagee in possession
by reason of such entry or taking possession; nor (c) be liable (i) to account
for any action taken pursuant to such exercise other than for Rents actually
received by Lender, (ii) for any loss sustained by Borrower resulting from any
failure to lease the Property, or (iii) any other act or omission of Lender
except for losses caused by Lender's willful misconduct or gross negligence.
Borrower hereby consents to, ratifies, and confirms the exercise by Lender of
its rights under this Instrument and appoints Lender as its attorney-in-fact,
which appointment shall be deemed to be coupled with an interest and
irrevocable, for such purposes.
Section 6.03 Expenses. All Costs, expenses, or other amounts paid or incurred
by Lender in the exercise of its rights under the Documents, together with
interest thereon at the applicable interest rate specified in the Note, which
shall be the Default Rate unless prohibited by Laws, shall be (a) part of the
Obligations, (b) secured by this Instrument, and (c) allowed and included as
part of the Obligations in any foreclosure, decree for sale, power of sale, or
other judgment or decree enforcing Lender's rights under the Documents.
Section 6.04 Rights Pertaining to Sales. To the extent permitted under (and in
accordance with) any Laws, the following provisions shall, as Lender may
determine in its sole discretion, apply to any sales of the Property under
Article VI, whether by judicial proceeding, judgment, decree, power of sale,
foreclosure or otherwise: (a) Lender may conduct multiple sales of any part of
the Property in separate tracts or in its entirety and Borrower waives any
right to require otherwise; (b) any sale may be postponed or adjourned by
public announcement at the time and place appointed for such sale or for such
postponed or adjourned sale without further notice; and (c) Lender may acquire
the Property and, in lieu of paying cash, may pay by crediting against the
Obligations the amount of its bid, after deducting therefrom any sums which
Lender is authorized to deduct under the provisions of the Documents.
Section 6.05 Applications of Proceeds. Any proceeds received from any sale or
disposition under Article VI or otherwise, together with any other sums held
by Lender, shall, except as expressly provided to the contrary, be applied in
the order determined by Lender to: (a) payment of all actual and reasonable
Costs and expenses of any enforcement action or foreclosure sale, including
interest thereon at the applicable interest rate specified in the Note, which
shall be the Default Rate unless prohibited by Laws; (b) all taxes,
Assessments, and other charges then due and payable unless the Property was
sold subject to these items; (c) payment of the Obligations in such order as
Lender may elect; (d) payment of any other sums secured or required to be paid
by Borrower; and (e) payment of the surplus, if any, to any person lawfully
entitled to receive it. Borrower and Lender intend and agree that during any
period of time between any foreclosure judgment that may be obtained and the
actual foreclosure sale that the foreclosure judgment will not extinguish the
Documents or any rights contained therein including the obligation of Borrower
to pay all Costs and to pay interest at the applicable interest rate specified
in the Note, which shall be the Default Rate unless prohibited by Laws.
Section 6.06 Additional Provisions as to Remedies. No failure, refusal,
waiver, or delay by Lender to exercise any rights under the Documents upon any
default or Event of Default shall impair Lender's rights or be construed as a
waiver of, or acquiescence to, such or any subsequent default or Event of
Default. No recovery of any judgment by Lender and no levy of an execution
upon the Property or any other property of Borrower shall affect the lien and
security interest created by this Instrument and such liens, rights, powers,
and remedies shall continue unimpaired as before. Lender may resort to any
security given by this Instrument or any other security now given or hereafter
existing to secure the Obligations, in whole or in part, in such portions and
in such order as Lender may deem advisable, and no such action shall be
construed as a waiver of any of the liens, rights, or benefits granted
hereunder. Acceptance of any payment after any Event of Default shall not be
deemed a waiver or a cure of such Event of Default and such acceptance shall
be deemed an acceptance on account only. If Lender has started enforcement of
any right by foreclosure, sale, entry, or otherwise and such proceeding shall
be discontinued, abandoned, or determined adversely for any reason, then
Borrower and Lender shall be restored to their former positions and rights
under the Documents with respect to the Property, subject to the lien and
security interest hereof.
Section 6.07 Waiver of Rights and Defenses. To the fullest extent Borrower may
do so under Laws, Borrower (a) will not at any time insist on, plead, claim,
or take the benefit of any statute or rule of law now or later enacted
providing for any appraisement, valuation, stay, extension, moratorium,
redemption, or any statute of limitations; (b) for itself, its successors and
assigns, and for any person ever claiming an interest in the Property (other
than Lender), waives and releases all rights of redemption, reinstatement,
valuation, appraisement, notice of intention to mature or declare due the
whole of the Obligations, all rights to a marshaling of the assets of
Borrower, including the Property, or to a sale in inverse order of alienation,
in the event of foreclosure of the liens and security interests created under
the Documents; (c) shall not be relieved of its obligation to pay the
Obligations as required in the Documents nor shall the lien or priority of the
Documents be impaired by any agreement renewing, extending, or modifying the
time of payment or the provisions of the Documents (including a modification
of any interest rate), unless expressly released, discharged, or modified by
such agreement. Regardless of consideration and without any notice to or
consent by the holder of any subordinate lien, security interest, encumbrance,
right, title, or interest in or to the Property, Lender may (a) release any
person liable for payment of the Obligations or any portion thereof or any
part of the security held for the Obligations or (b) modify any of the
provisions of the Documents without impairing or affecting the Documents or
the lien, security interest, or the priority of the modified Documents as
security for the Obligations over any such subordinate lien, security
interest, encumbrance, right, title, or interest.
ARTICLE VII - SECURITY AGREEMENT
Section 7.01 Security Agreement. This Instrument constitutes both a real
property mortgage and a "security agreement" within the meaning of the U.C.C.
The Property includes real and personal property and all tangible and
intangible rights and interest of Borrower in the Property. Borrower grants to
Lender, as security for the Obligations, a security interest in the Personal
Property to the fullest extent that the same may be subject to the U.C.C.
Borrower authorizes Lender to file any financing or continuation statements
and amendments thereto relating to the Personal Property without the signature
of Borrower if permitted by Laws.
ARTICLE VIII - LIMITATION ON PERSONAL LIABILITY AND INDEMNITIES
Section 8.01 Limited Recourse Liability. The provisions of Paragraph 8 and
Paragraph 9 of the Note are incorporated into this Instrument as if such
provisions were set forth in their entirety in this Instrument.
Section 8.02 General Indemnity. Borrower agrees that while Lender has no
liability to any person in tort or otherwise as lender and that Lender is not
directly an owner or operator of the Property, Borrower shall, at its sole
expense, protect, defend, release, indemnify and hold harmless ("indemnify")
the Indemnified Parties (defined below) from any Losses (defined below)
imposed on, incurred by, or asserted against the Indemnified Parties, directly
or indirectly, arising out of or in connection with the Property, Loan, or
Documents, including Losses; provided, however, that the foregoing indemnities
shall not apply to any Losses caused by the gross negligence or willful
misconduct of the Indemnified Parties or caused by any Affiliate of Lender in
its capacity as member of Borrower. The term "Losses" shall mean any claims,
suits, liabilities (including strict liabilities), actions, proceedings,
obligations, debts, damages, losses, Costs, expenses, fines, penalties,
charges, fees, judgments, awards, and amounts paid in settlement of whatever
kind including attorneys' fees (both in-house staff and retained attorneys)
and all other costs of defense. The term "Indemnified Parties" shall mean (a)
Lender, (b) any prior owner or holder of the Note, (c) any existing or prior
servicer of the Loan, (d) the officers, directors, shareholders, partners,
employees and trustees of any of the foregoing, and (e) the heirs, legal
representatives, successors and assigns of each of the foregoing but shall
exclude any Affiliate of Lender in its capacity as member of Borrower.
Section 8.03 Transaction Taxes Indemnity. Borrower shall, at its sole expense,
indemnify the Indemnified Parties from all Losses imposed upon, incurred by,
or asserted against the Indemnified Parties or the Documents relating to
Transaction Taxes.
Section 8.04 Duty to Defend, Costs and Expenses. Upon request, whether
Borrower's obligation to indemnify Lender arises under Article VIII or in the
Documents, Borrower shall defend the Indemnified Parties (in Borrower's or the
Indemnified Parties name) by attorneys and other professionals approved by the
Indemnified Parties. Notwithstanding the foregoing, the Indemnified Parties
may, in their sole discretion, engage their own attorneys and professionals to
defend or assist them and, at their option, their attorneys shall control the
resolution of any claims or proceedings. Upon demand, Borrower shall pay or,
in the sole discretion of the Indemnified Parties, reimburse and/or indemnify
the Indemnified Parties for all Costs imposed on, incurred by, or asserted
against the Indemnified Parties by reason of any items set forth in this
Article VIII and/or the enforcement or preservation of the Indemnified
Parties' rights under the Documents. Any amount payable to the Indemnified
Parties under this Section shall (a) be deemed a demand obligation, (b) be
part of the Obligations, (c) bear interest at the applicable interest rate
specified in the Note, which shall be the Default Rate unless prohibited by
Laws, until paid if not paid on demand, and (d) be secured by this Instrument.
Section 8.05 Recourse Obligation and Survival. Notwithstanding anything to the
contrary in the Documents and in addition to the recourse obligations in the
Note, if any, the obligations of Borrower under Sections 8.03 and 8.04 shall
be a full recourse obligation of Borrower, shall not be subject to any
limitation on personal liability in the Documents, and shall survive (a)
repayment of the Obligations, (b) any termination, satisfaction, assignment or
foreclosure of this Instrument, (c) the acceptance by Lender (or any nominee)
of a deed in lieu of foreclosure, (d) a plan of reorganization filed under the
Bankruptcy Code, or (e) the exercise by the Lender of any rights in the
Documents. Borrower's obligations under Article VIII shall not be affected by
the absence or unavailability of insurance covering the same or by the failure
or refusal by any insurance carrier to perform any obligation under any
applicable insurance policy.
ARTICLE IX - ADDITIONAL PROVISIONS
Section 9.01 Usury Savings Clause. All agreements in the Documents are
expressly limited so that in no event whatsoever shall the amount paid or
agreed to be paid under the Documents for the use, forbearance, or detention
of money exceed the highest lawful rate permitted by Laws. If, at the time of
performance, fulfillment of any provision of the Documents shall involve
transcending the limit of validity prescribed by Laws, then, ipso facto, the
obligation to be fulfilled shall be reduced to the limit of such validity. If
Lender shall ever receive as interest an amount which would exceed the highest
lawful rate, the receipt of such excess shall be deemed a mistake and (a)
shall be canceled automatically or (b) if paid, such excess shall be (i)
credited against the principal amount of the Obligations to the extent
permitted by Laws or (ii) rebated to Borrower if it cannot be so credited
under Laws. Furthermore, all sums paid or agreed to be paid under the
Documents for the use, forbearance, or detention of money shall to the extent
permitted by Laws be amortized, prorated, allocated, and spread throughout the
full stated term of the Note until payment in full so that the rate or amount
of interest on account of the Obligations does not exceed the maximum lawful
rate of interest from time to time in effect and applicable to the Obligations
for so long as the Obligations are outstanding.
Section 9.02 Notices.
(a) In Writing; Address. All notices, requests, approvals,
elections, offers, acceptances, demands, consents, reports and other
communications (collectively, "Notices" or "notices") given hereunder shall be
in writing and shall be given to Lender or to Borrower at the respective
address and/or facsimile number set forth below or at such other address
and/or facsimile number as Lender or Borrower may hereafter designate by like
notice.
IF TO LENDER:
------------
The Prudential Insurance Company of America
Prudential Real Estate Investors
8 Campus Drive, 4th Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Mr. J. Allen Smith
Telecopier: (973) 683-1794
Telephone: (973) 734-1734
and
The Prudential Insurance Company of America
Prudential Real Estate Investors
PAMG-RE Law Department
8 Campus Drive, 4th Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Joan N. Hayden, Esq.
Assistant General Counsel
Telecopier: (973) 683-1788
Telephone: (973) 683-1772
COPY TO:
-------
O'Melveny & Myers LLP
153 East 53rd Street
New York, New York 10022
Attention: Jacqueline A. Weiss, Esq.
Telecopier: (212) 326-2061
Telephone: (212) 326-2110
IF TO BORROWER:
--------------
SLG 100 Park LLC
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Mr. Marc Holliday
Telecopier: (212) 216-1684
Telephone: (212) 216-1785
COPIES TO:
---------
SL Green 100 Park LLC
c/o SL Green Realty Corp.
420 Lexington Avenue
New York, New York 10170
Attention: Benjamin Feldman, Esq.
Telecopier: (212) 216-1790
Telephone: (212) 216-1646
Greenberg Traurig
200 Park Avenue
New York, New York 10166
Attention: Robert J. Ivanhoe, Esq.
Telecopier: (212) 801-6400
Telephone: (212) 801-9333
The Prudential Insurance Company of America
Prudential Real Estate Investors
8 Campus Drive, 4th Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Mr. J. Allen Smith
Telecopier: (973) 683-1794
Telephone: (973) 734-1734
The Prudential Insurance Company of America
Prudential Real Estate Investors
PAMG-RE Law Department
8 Campus Drive, 4th Floor
Arbor Circle South
Parsippany, New Jersey 07054-4493
Attention: Joan N. Hayden, Esq.
Assistant General Counsel
Telecopier: (973) 683-1788
Telephone: (973) 683-1772
and
O'Melveny & Myers LLP
153 East 53rd Street
New York, New York 10022
Attention: Jacqueline A. Weiss, Esq.
Telecopier: (212) 326-2061
Telephone: (212) 326-2110
(b) Method. Notices or other communications shall be deemed duly
given or made (i) at the time and on the date when received by facsimile
(provided that the sender of such communication shall orally confirm receipt
thereof by the appropriate parties and send a copy of such communication to
the appropriate parties within one (1) Business Day of such facsimile), (ii)
when personally delivered as shown on a receipt therefor (which shall include
delivery by a nationally recognized overnight delivery service), or (iii)
within three (3) Business Days after being mailed by United States registered
or certified mail, return receipt requested, postage prepaid, deposited in a
United States post office or a depository for the receipt of mail regularly
maintained by the post office.
Section 9.03 Sole Discretion of Lender. Except as otherwise expressly stated,
whenever Lender's judgment, consent, or approval is required or Lender shall
have an option or election under the Documents, such judgment, the decision as
to whether or not to consent to or approve the same, or the exercise of such
option or election shall be in the sole and absolute discretion of Lender.
Section 9.04 Applicable Law, Service of Process, etc. and Submission to
Jurisdiction. This Agreement and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with the laws of
the State of New York, without regard to principles of conflicts laws. All
judicial proceedings brought against any party with respect to this Agreement
shall be brought in any state or federal court of competent jurisdiction in
the State of New York, New York County and by execution and delivery of this
Agreement by each party, each such party accepts, for itself and in connection
with its properties, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by
any final judgment rendered thereby in connection with this Agreement from
which no appeal has been taken or is available. Each party irrevocably agrees
that all process in any such proceedings in any such court may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to it at its address as specified in
Section 9.02, such service being hereby acknowledged by each party to be
effective and binding service in every respect. Each party irrevocably waives
any objection, including any objection of the laying of venue or based on the
grounds of forum non conveniens (provided that the action or proceeding in
question is brought in New York County, New York), that it may now or
hereafter have to the bringing of any such action or proceeding in any such
jurisdiction. Nothing herein shall affect the right to serve process in any
other manner permitted by law. This Agreement constitutes commercial
activities of Lender. Neither party shall be entitled to any immunity
whatsoever, whether characterized as sovereign immunity or otherwise, from any
legal proceedings, whether in the United States or elsewhere, to enforce the
obligations or liabilities hereunder. Each party acknowledges that to the
extent any of its property should at any time acquire any immunity, it hereby
irrevocably waives such right to immunity in respect of any actions or
proceedings, wherever brought, in respect of the obligations or liabilities
hereunder.
Section 9.05 Construction of Provisions. The following rules of construction
shall apply for all purposes of this Instrument unless the context otherwise
requires: (a) all references to numbered Articles or Sections or to lettered
Exhibits are references to the Articles and Sections hereof and the Exhibits
annexed to this Instrument and such Exhibits are incorporated into this
Instrument as if fully set forth in the body of the Instrument; (b) all
Article, Section, and Exhibit captions are used for convenience and reference
only and in no way define, limit, or in any way affect this Instrument; (c)
words of masculine, feminine, or neuter gender shall mean and include the
correlative words of the other genders, and words importing the singular
number shall mean and include the plural number, and vice versa; (d) no
inference in favor of or against any party shall be drawn from the fact that
such party has drafted any portion of. this Instrument; (e) all obligations of
Borrower hereunder shall be performed and satisfied by or on behalf of
Borrower at Borrower's sole expense; (f) the terms "include," "including," and
similar terms shall be construed as if followed by the phrase "without being
limited to"; (g) the terms "Property", "Land", "Improvements", and "Personal
Property" shall be construed as if followed by the phrase "or any part
thereof"; (h) the term "Obligations" shall be construed as if followed by the
phrase "or any other sums secured hereby, or any part thereof"; (i) the term
"Person" shall include natural persons, firms, partnerships, corporations,
limited liability companies, governmental authorities or agencies, and any
other public or private legal entities; (j) the term "provisions," when used
with respect hereto or to any other document or instrument, shall be construed
as if preceded by the phrase "terms, covenants, agreements, requirements,
and/or conditions"; (k) the term "lease" shall mean "tenancy, subtenancy,
lease, sublease, or rental agreement," the term "lessor" shall mean "landlord,
sublandlord, lessor, and sublessor," and the term "Tenants" or "lessee" shall
mean "tenant, subtenant, lessee, and sublessee"; (l) the term "owned" shall
mean "now owned or later acquired"; (m) the terms "any" and "all" shall mean
"any or all"; (n) the term "on demand" or "upon demand" shall mean "within
five (5) Business Days after written notice"; (o) the term "Business Day"
shall mean a day on which commercial banks or other institutional lenders are
not authorized or required by Laws to close in the State of New York or in the
State of New Jersey; and (p) the term "Affiliates" shall mean, with respect to
any Person, a director, president, chief executive officer or vice president
(each an "Officer") of such Person if such Person is a corporation; any
individual who is an immediate family member (i.e., spouse, lineal descendant
or lineal ancestor) of any Officer; any corporate owner or other owner (direct
or indirect) of such Person; any pension plan of such Person; any corporation
owned, directly or indirectly, by such Person; or any partnership or limited
liability company of which such Person (or the general partner or managing
member of such Person) owns, in the aggregate, greater than 50%, directly or
indirectly, of the general partnership interest or limited liability company
interest or is the general partner of such partnership or the managing member
of such limited liability company. A Person owns a corporation, for the
purposes of this definition, when the Person owns or beneficially owns more
than 50% of the outstanding voting shares of the corporation with the full
right to vote such stock. Neither Borrower nor the managing member of Borrower
shall be deemed an Affiliate of Lender as that phrase is used in any of the
Documents.
Section 9.06 Miscellaneous. If any provision of the Documents shall be held to
be invalid, illegal, or unenforceable in any respect, this shall not affect
any other provisions of the Documents and such provision shall be limited and
construed as if it were not in the Documents. If title to the Property becomes
vested in any person other than Borrower, Lender may, without notice to
Borrower, deal with such person regarding the Documents or the Obligations in
the same manner as with Borrower without in any way vitiating or discharging
Borrower's liability under the Documents or being deemed to have consented to
the vesting. If both the Lender and Borrower's interests ever becomes vested
in any one Person, this Instrument and the lien and security interest created
hereby shall not be destroyed or terminated by the application of the doctrine
of merger and Lender shall continue to have and enjoy all its rights and
privileges as to each separate estate. Upon foreclosure of this Instrument,
none of the Leases shall be destroyed or terminated as a result of such
foreclosure, by application of the doctrine of merger or as a matter of law,
unless Lender takes all actions required by law to terminate the Leases as a
result of foreclosure. All of Borrower's covenants and agreements under the
Documents shall run with the land and time is of the essence. Borrower
appoints Lender as its attorney-in-fact, which appointment is irrevocable and
shall be deemed to be coupled with an interest, with respect to the execution,
acknowledgment, delivery, filing or recording for and in the name of Borrower
of any of the Documents or any documents to be executed by Borrower as
referenced herein. The Documents cannot be amended, terminated, or discharged
except in a writing signed by the party against whom enforcement is sought. No
waiver, release, or other forbearance by Lender will be effective unless it is
in a writing signed by Lender and then only to the extent expressly stated.
The provisions of the Documents shall be binding upon Borrower and its heirs,
devisees, representatives, successors, and assigns including successors in
interest to the Property and inure to the benefit of Lender and its heirs,
successors, substitutes, and assigns. Where two or more persons have executed
the Documents, the obligations of such persons shall be joint and several,
except to the extent the context clearly indicates otherwise. The Documents
may be executed in any number of counterparts with the same effect as if all
parties had executed the same document. All such counterparts shall be
construed together and shall constitute one instrument, but in making proof
hereof it shall only be necessary to produce one such counterpart. Upon
receipt of an affidavit of an officer of Lender as to the loss, theft,
destruction or mutilation of any Document which is not of public record, and,
in the case of any mutilation, upon surrender and cancellation of the
Document, Borrower will issue, in lieu thereof, a replacement Document, dated
the date of the lost, stolen, destroyed or mutilated Document containing the
same provisions.
Section 9.07 Entire Agreement. Except as otherwise provided herein, (a) the
Documents constitute the entire understanding and agreement between Borrower
and Lender with respect to the Loan and supersede all prior written or oral
understandings and agreements with respect to the Loan including the Loan
application and Loan commitment and (b) Borrower is not relying on any
representations or warranties of Lender except as expressly set forth in the
Documents.
Section 9.08 WAIVER OF TRIAL BY JURY. BORROWER AND LENDER WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM FILED BY EITHER PARTY, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE DOCUMENTS, OR ANY
ACTS OR OMISSIONS OF LENDER IN CONNECTION THEREWITH.
Section 9.09 New York Law Provisions.
(a) Section 291-f Agreement. This Instrument is intended to be, and
shall operate as, the agreement described in Section 291-f of the Real
Property Law of the State of New York and shall be entitled to the benefits
afforded thereby. Borrower shall (unless such notice is contained in such
tenant's Lease) deliver notice of this Instrument in form and substance
acceptable to Lender, to all present and future holders of any interest in any
Lease, by assignment or otherwise, and shall take such other action as may now
or hereafter be reasonably required to afford Lender the full protections and
benefits of Section 291-f. Borrower shall request the recipient of any such
notice to acknowledge the receipt thereof.
(b) Trust Fund. Pursuant to Section 13 of the Lien Law of the State
of New York, Borrower shall receive the advances secured by this Instrument
and shall hold the right to receive such advances as a trust fund to be
applied first for the purpose of paying the cost of any improvement and shall
apply such advances first to the payment of the cost of any such improvement
on the Property before using any part of the total of the same for any other
purpose.
(c) Mortgage of Definite Amount.
---------------------------
(i) New York Tax Law Section 256. If, by
reason of the additional sums that may become secured by the lien of this
Instrument pursuant to the terms hereof, a court or other governmental
authority having jurisdiction at any time shall determine that this Instrument
falls within the ambit of Section 256 of the Tax Law of the State of New York,
then Lender reserves the right, in its discretion, to elect not to have such
additional sums secured by this Instrument and thereby reduce the Obligations
secured hereby to a definite amount equal to the principal amount of the Note,
interest thereon at the rate provided in the Note, plus any disbursements made
to protect the security of this Instrument, with interest on such
disbursements at the Default Rate, plus any such other sums as by statute or
judicial interpretation now or hereafter may be permitted to be secured by the
lien of a mortgage without incurring any additional mortgage recording tax.
Any election by Lender to so reduce the indebtedness secured by this
Instrument shall in no event be deemed a release, waiver or discharge by
Lender of Borrower's obligation to pay or reimburse Lender for such sums.
(ii) Sums Deemed to be Interest. Any sums,
late charges or liquidated damages, that may become due and payable pursuant
to the terms of the Note and/or this Instrument and that are in the nature of
interest (A) shall for the purpose of determining the amount of mortgage
recording tax due and payable on this Instrument, be considered as additional
interest, whether or not so denominated, (B) shall be secured by the lien of
this Instrument to the fullest extent possible without causing this Instrument
to be covered by Section 256 of the Tax Law of the State of New York, and (C)
shall not be deemed principal and shall not accrue any interest.
(d) Assignment of Instrument. Upon payment in full of the
Obligations, Lender will execute and deliver, at Borrower's election and at
Borrower's direction, such customary and standard documents as may reasonably
be required to release, satisfy or assign this Instrument of record, provided
that Lender shall not be required to make any representations and warranties
therein other than a representation as to the then outstanding amount of the
Obligations.
IN WITNESS WHEREOF, the undersigned have executed this Instrument by their
respective duly authorized representative as of the date first set forth
above.
BORROWER:
SLG 100 PARK LLC, a
Delaware limited liability company
By: SL Green 100 Park LLC,
a New York limited liability company,
its Managing Member
By: SL Green Operating Partnership, L.P.,
a Delaware limited partnership,
its sole Member
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By:_________________________
Name: Benjamin P. Feldman
Title: Executive Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
ON THE ______ DAY OF FEBRUARY IN THE YEAR 2000 BEFORE ME, THE
UNDERSIGNED, A NOTARY PUBLIC IN AND FOR SAID STATE, PERSONALLY APPEARED
______________, PERSONALLY KNOWN TO ME OR PROVED TO ME ON THE BASIS OF
SATISFACTORY EVIDENCE TO BE THE INDIVIDUAL(S) WHOSE NAME(S) IS (ARE)
SUBSCRIBED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/SHE/THEY
EXECUTED THE SAME IN HIS/HER/THEIR CAPACITY(IES), AND THAT BY HIS/HER/THEIR
SIGNATURE(S) ON THE INSTRUMENT, THE PERSON UPON BEHALF OF WHICH THE
INDIVIDUAL(S) ACTED, EXECUTED THE INSTRUMENT.
-------------------------------------------
(SIGNATURE AND OFFICE OF INDIVIDUAL TAKING
ACKNOWLEDGMENT)
EXHIBIT A
LEGAL DESCRIPTION OF LAND
ALL that certain plot or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and
described as follows:
BEGINNING at the corner formed by the intersection of the northerly side of
East 40th Street with the westerly side of Park Avenue;
THENCE westerly along the northerly side of East 40th Street, 230 feet;
THENCE northerly and parallel with the westerly side of Park Avenue, 98 feet 9
inches to the centre line of the block;
THENCE easterly along said centre line of the block and parallel with the
northerly side of East 40th Street, 83 feet 4 inches;
THENCE northerly and again parallel with the westerly side of Park Avenue and
part of the way through a party wall, 98 feet 9 inches to the southerly side
of East 41st Street;
THENCE easterly along said southerly side of East 41st Street, 146 feet 8
inches to the westerly side of Park Avenue; and
THENCE southerly along the westerly side of Park Avenue, 197 feet 6 inches to
the point or place of BEGINNING.
EXHIBIT B
DESCRIPTION OF PERSONAL PROPERTY SECURITY
1. All machinery, apparatus, goods, equipment, materials, fittings,
fixtures, chattels, and tangible personal property, and all appurtenances and
additions thereto and betterments, renewals, substitutions, and replacements
thereof, owned or leased by Borrower (and subject to the rights of Tenants),
wherever situate, and now or hereafter located on, attached to, contained in,
or used or usable in connection with the real property described in Exhibit A
(the "Land"), and all improvements located thereon (the "Improvements") or
placed on any part thereof, though not attached thereto, including all
screens, awnings, shades, blinds, curtains, draperies, carpets, rugs,
furniture and furnishings, heating, electrical, lighting, plumbing,
ventilating, air-conditioning, refrigerating, incinerating and/or compacting
plants, systems, fixtures and equipment, elevators, hoists, stoves, ranges,
vacuum and other cleaning systems, call systems, sprinkler systems and other
fire prevention and extinguishing apparatus and materials, motors, machinery,
pipes, ducts, conduits, dynamos, engines, compressors, generators, boilers,
stokers, furnaces, pumps, tanks, appliances, equipment, fittings, and
fixtures.
2. All funds, accounts, deposits, instruments, documents, contract
rights, general intangibles, notes, and chattel paper arising from or by
virtue of any transaction related to the Land, the Improvements, or any of the
personal property described in this Exhibit B.
3. All permits, licenses, franchises, certificates, and other rights
and privileges now held or hereafter acquired by Borrower in connection with
the Land, the Improvements, or any of the personal property described in this
Exhibit B.
4. All right, title, and interest of Borrower in and to the name and
style by which the Land and/or the Improvements is known, including trademarks
and trade names relating thereto.
5. All right, title, and interest of Borrower in, to, and under all
plans, specifications, maps, surveys, reports, permits, licenses,
architectural, engineering and construction contracts, books of account,
insurance policies, and other documents of whatever kind or character,
relating to the use, construction upon, occupancy, leasing, sale, or operation
of the Land and/or the Improvements.
6. All interests, estates, or other claims or demands, in law and in
equity, which Borrower now has or may hereafter acquire in the Land, the
Improvements, or the personal property described in this Exhibit B.
7. All right, title, and interest owned by Borrower in and to all
options to purchase or lease the Land, the Improvements, or any other personal
property described in this Exhibit B, or any portion thereof or interest
therein, and in and to any greater estate in the Land, the Improvements, or
any of the personal property described in this Exhibit B.
8. All of the estate, interest, right, title, other claim or demand,
both in law and in equity, including claims or demands with respect to the
proceeds of insurance relating thereto, that Borrower now has or may hereafter
acquire in the Land, the Improvements, or any of the personal property
described in this Exhibit B, or any portion thereof or interest therein, and
any and all awards made for the taking by eminent domain, or by any proceeding
or purchase in lieu thereof, of the whole or any part of such property,
including without limitation, any award resulting from a change of any streets
(whether as to grade, access, or otherwise) and any award for severance
damages.
9. All right, title, and interest of Borrower in and to all
contracts, permits, certificates, licenses, approvals, utility deposits,
utility capacity, and utility rights issued, granted, agreed upon, or
otherwise provided by any governmental or private authority or other, Person
relating to the ownership, development, construction, operation, maintenance,
marketing, sale, or use of the Land and/or the Improvements, including all of
the Borrower's rights and privileges hereto or hereafter otherwise arising in
connection with or pertaining to the Land and/or the Improvements.
AND ALL PROCEEDS AND PRODUCTS OF THE FOREGOING PERSONAL PROPERTY DESCRIBED IN
THIS EXHIBIT B.
A PORTION OF THE ABOVE DESCRIBED GOODS ARE OR ARE TO BE AFFIXED TO THE REAL
PROPERTY DESCRIBED IN EXHIBIT A.
THE BORROWER IS THE RECORD TITLE HOLDER AND OWNER OF THE REAL PROPERTY
DESCRIBED IN EXHIBIT A.
EXHIBIT C
PERMITTED ENCUMBRANCES
(Starting on the following page)
EXHIBIT D
EXISTING MORTGAGE
(Starting on the following page)
EXHIBIT E
EXISTING NOTE
(Starting on the following page)
EXHIBIT F
NOTE
AMENDED, RESTATED AND
CONSOLIDATED MORTGAGE NOTE
New York, New York
US $112,000,000.00 February ____, 2000
THIS AMENDED, RESTATED AND CONSOLIDATED MORTGAGE NOTE (this "Note") by
SLG 100 PARK LLC, a Delaware limited liability company, having a principal
place of business at c/o SL Green Realty Corp., 420 Lexington Avenue, New
York, New York 10170 ("Borrower"), to the order of THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New Jersey corporation ("Lender", which shall also mean
successors and assigns who become holders of this Note), having an office c/o
Prudential Real Estate Investors, 8 Campus Drive, Arbor Circle South,
Parsippany, New Jersey 07054-4493.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Lender is the owner and holder of a certain mortgage spread,
consolidated and modified by that certain Agreement of Spreader, Consolidation
and Modification of Mortgage of even date herewith between Borrower and Lender
(the mortgage spread, consolidated and modified thereby, the "Instrument";
capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Instrument), and of the note secured thereby
(collectively, the "Existing Note"); and
WHEREAS, Borrower is the current obligor under the Existing Note; and
WHEREAS, Borrower and Lender have agreed in the manner hereinafter set
forth (a) to adjust the interest rate on the Existing Note, (b) to change the
monthly payments on the Existing Note, and (c) to modify and restate in their
entirety all other terms and provisions of the Existing Note,
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated into the operative provisions of this Note by this reference, and
for other good and valuable consideration, the receipt and adequacy of which
are hereby conclusively acknowledged, Borrower hereby represents and warrants
to and covenants and agrees with Lender as follows:
A. Outstanding Indebtedness. The aggregate outstanding indebtedness
evidenced by the Existing Note and secured by the Instrument is One Hundred
Twelve Million Dollars ($112,000,000.00), it being understood that no interest
under the Existing Note is accrued and unpaid for the period prior to the date
hereof, but that interest shall accrue and be paid from and after the date
hereof at the rate or rates herein provided.
B. Amendment and Restatement of Existing Note. The terms, covenants and
provisions of the Existing Note are hereby modified, amended and restated in
their entirety so that henceforth such terms, covenants and provisions shall
be those set forth herein, and the Existing Note, as so modified, amended and
restated, are hereby ratified and confirmed in all respects by Borrower. This
Note does not create any new or additional indebtedness but evidences the same
indebtedness evidenced by the Existing Note and secured by the Instrument.
C. Borrower's Promise to Pay. FOR VALUE RECEIVED, Borrower promises to
pay to the order of Lender at its offices set forth above the principal sum of
One Hundred Twelve Million and No/100 U.S. Dollars ($112,000,000.00), with
interest on the unpaid balance ("Balance") at the rate of eight and
thirty-five one hundredths percent (8.35%) per annum ("Note Rate") from the
date hereof ("Funding Date") until Maturity (defined below.
1. Regular Payments. Principal and interest shall be payable as
follows:
(a) Interest from the Funding Date through January 31, 2000 shall
be due and payable on the Funding Date.
(b) Interest only shall be paid in arrears in monthly installments
of Seven Hundred Seventy Nine Thousand Three Hundred Thirty-Three and
33/100 Dollars ($779,333.33) each, commencing on March 1, 2000 and
continuing on the first (1st) day of each succeeding month to and
including January 31, 2002. Each payment due date is referred to as a
"Due Date".
(c) The entire unpaid Obligations (as defined in the Instrument)
shall be due and payable on January 31, 2002 ("Maturity Date").
"Maturity" shall mean the Maturity Date or earlier date that the
Obligations may be due and payable by acceleration by Lender as provided
in the Documents.
(d) Interest on the Balance for any full month shall be calculated
on the basis of a three hundred sixty (360) day year consisting of
twelve (12) months of thirty (30) days each. For any partial month,
interest due under this Note shall be computed hereunder with respect to
each day during such period by multiplying the Balance at the close of
business on each day (or on the most recent day that Lender was open for
business) by a daily interest factor calculated by dividing the Note
Rate by 360. Interest so computed shall accrue for each and every day
during any partial month on which there is a Balance due hereunder and
including the day on which funds are repaid.
2. Late Payment and Default Interest.
(a) Late Charge. If any payment due under the Documents is not
fully paid by its Due Date, a late charge of $500.00 per day (the "Daily
Charge") shall be assessed for each day that elapses until payment in
full is made (including the date payment is made); provided, however,
that if any such payments, together with all accrued Daily Charges, are
not fully paid by the fifteenth day following their Due Date, a late
charge equal to four percent (4%) of such payments (the "Late Charge")
shall be assessed and be immediately due and payable. The Late Charge
shall be payable in lieu of Daily Charges that shall have accrued. The
Late Charge may be assessed only once on each overdue payment. These
charges shall be paid to defray the expenses incurred by Lender in
handling and processing such delinquent payment(s) and to compensate
Lender for the loss of the use of such funds. The Daily Charge and Late
Charge shall be secured by the Documents. The imposition of the Daily
Charge, Late Charge, and/or requirement that interest be paid at the
Default Rate (defined below) shall not be construed in any way to (i)
excuse Borrower from its obligation to make each payment under this Note
promptly when due or (ii) preclude Lender from exercising any rights or
remedies available under the Documents upon an Event of Default.
(b) Acceleration. Upon an Event of Default, Lender may declare the
Balance, unpaid accrued interest, and all other Obligations immediately
due and payable in full.
(c) Default Rate. Upon an Event of Default or at Maturity, whether
by acceleration (due to a voluntary or involuntary default) or
otherwise, the entire Obligations (excluding accrued but unpaid interest
if prohibited by law) shall bear interest at the Default Rate. The
"Default Rate" shall be the lesser of (i) the Maximum Rate (defined
below) or (ii) the greater of (A) the Note Rate plus five percent (5%)
or (B) five percent (5%) plus the prime rate (for corporate loans at
large United States money center commercial banks) published in the Wall
Street Journal on the first Business Day (defined below) of the month in
which the Event of Default or Maturity occurs or continues. The term
"Business Day" shall mean a day on which commercial banks or other
institutional lenders are not authorized or required by Laws to close in
the State of New York or in the State of New Jersey.
3. Application of Payments. Before an Event of Default, all payments
received under this Note shall be applied in the following order: (a) to
unpaid Daily Charges, Late Charges and costs of collection; (b) to interest on
the Balance; and (c) then to the Balance. After an Event of Default, all
payments shall be applied in any order determined by Lender in its sole
discretion.
4. Prepayment. This Note may be prepaid, in whole or in part at any time
upon payment of all accrued interest and other Obligations due under the
Documents. No prepayment premium or penalty will be assessed.
5. No Usury. Under no circumstances shall the aggregate amount paid or
to be paid as interest under this Note exceed the highest lawful rate
permitted under applicable usury law ("Maximum Rate"). If under any
circumstances the aggregate amounts paid on this Note shall include interest
payments which would exceed the Maximum Rate, Borrower stipulates that payment
and collection of interest in excess of the Maximum Rate ("Excess Amount")
shall be deemed the result of a mistake by both Borrower and Lender and Lender
shall promptly credit the Excess Amount against the Balance or refund to
Borrower any portion of the Excess Amount that cannot be so credited.
6. Security and Documents Incorporated. This Note is the Note referred
to and secured by the Instrument and is secured by the Property. Borrower
shall observe and perform all of the terms and conditions in the Documents.
The Documents are incorporated into this Note as if fully set forth in this
Note.
7. Treatment of Payments. All payments under this Note shall be made,
without offset or deduction, (a) in lawful money of the United States of
America at the office of Lender or at the place (and in the manner) Lender may
specify by written notice to Borrower, (b) in immediately available federal
funds, and (c) if received by Lender prior to 2:00 p.m. local time at such
place, shall be credited on that day or else, at Lender's option, shall be
credited on the next Business Day. Initially (unless waived by Lender), and
until Lender shall direct Borrower otherwise, Borrower shall make all payments
due under this Note in the manner set forth in Section 3.13 of the Instrument.
If any Due Date falls on a day that is not a Business Day, then the payment
shall be deemed to have fallen on the next succeeding Business Day.
8. Limited Recourse Liability. Except to the extent set forth in
Paragraph 8 and Paragraph 9 of this Note, neither the Borrower nor any members
of Borrower (singularly or collectively, the "Exculpated Parties") shall have
any personal liability for the Obligations. Notwithstanding the preceding
sentence, Lender may bring a foreclosure action or other appropriate action to
enforce the Documents or realize upon and protect the Property (including,
without limitation, naming the Exculpated Parties in the actions) and in
addition THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY FOR:
(a) any indemnity or similar instrument furnished in connection
with the Loan;
(b) any unpaid assessments and taxes with respect to the Property
for the one year period prior to an Event of Default and thereafter,
provided that income from the Property had been sufficient to pay the
same;
(c) any security deposits of Tenants not previously applied as
permitted by the terms of the applicable Lease and (i) not turned over
to Lender (or its designee) upon foreclosure, sale (pursuant to power of
sale), or conveyance in lieu thereof in connection with a proceeding
under the Bankruptcy Code or otherwise, or (ii) not turned over to a
receiver or trustee for the Property after appointment;
(d) any insurance proceeds or condemnation awards neither turned
over to Lender (or its designee) nor used in compliance with Sections
3.07 and 3.08, as applicable, of the Instrument;
(e) waste of any material or significant portion of the Property
that has not been expressly consented to by all members of Borrower
and/or expressly consented to by Lender in writing;
(f) any rents or other income from the Property received by any of
the Exculpated Parties (other than Lender or any Affiliate of Lender who
may be an Exculpated Party) after the occurrence of an event that with
the giving of notice or passage of time or both would constitute an
Event of Default under the Documents not otherwise applied to the
Obligations evidenced by this Note, or current (not deferred) operating
expenses of the Property; or (ii) is paid as expenses to a Person
related to or affiliated with any of the Exculpated Parties (except
payments made to Lender under the Loan Documents) unless the payments
are expressly permitted in the Documents; and
(g) all reasonable legal fees, including the allocated costs of
Lender's staff attorneys, and other expenses incurred by Lender in
enforcing the Documents if Borrower contests, delays, or otherwise
hinders or opposes (including the filing of a bankruptcy or equivalent
action or proceeding) any of Lender's enforcement actions.
9. Full Recourse Liability. Notwithstanding the provisions of Paragraph
8 of this Note, the EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY for all
of the Obligations if:
(a) there shall be any breach or violation of Article V of the
Instrument; or
(b) there shall be any fraud or material misrepresentation by any
of the Exculpated Parties (other than Lender or any Affiliate of Lender
who may be an Exculpated Party) in connection with the Property, the
Documents, or any other aspect of the Loan; or
(c) the Property or any part thereof (other than a Lease of a
Tenant who is not an Affiliate of any Exculpated Party) shall become an
asset in (i) a voluntary bankruptcy or insolvency proceeding or (ii) an
involuntary bankruptcy or insolvency proceeding that is not dismissed
within ninety (90) days of filing; provided, however, that this
Paragraph 9(c) shall not apply if an involuntary bankruptcy is filed by
Lender in its capacity as Lender only.
10. Construction of Provisions. The following rules of construction
shall apply for all purposes of this Note unless the context otherwise
requires: (a) all references to numbered Articles or Paragraphs or to lettered
Exhibits are references to the Articles and Paragraphs hereof and the Exhibits
annexed to this Note and such Exhibits are incorporated into this Note as if
fully set forth in the body of the Note; (b) all captions are used for
convenience and reference only and in no way define, limit, or in any way
affect this Note; (c) words of masculine, feminine, or neuter gender shall
mean and include the correlative words of the other genders, and words
importing the singular number shall mean and include the plural number, and
vice versa; (d) no inference in favor of or against any party shall be drawn
from the fact that such party has drafted any portion of. this Note; (e) all
obligations of Borrower hereunder shall be performed and satisfied by or on
behalf of Borrower at Borrower's sole expense; (f) the terms "include,"
"including," and similar terms shall be construed as if followed by the phrase
"without being limited to"; (g) the terms "Property", "Land", "Improvements",
and "Personal Property" shall be construed as if followed by the phrase "or
any part thereof"; (h) the term "Obligations" shall be construed as if
followed by the phrase "or any other sums secured hereby, or any part
thereof"; (i) the term "Person" shall include natural persons, firms,
partnerships, corporations, limited liability companies, governmental
authorities or agencies, and any other public or private legal entities; (j)
the term "provisions," when used with respect hereto or to any other document
or instrument, shall be construed as if preceded by the phrase "terms,
covenants, agreements, requirements, and/or conditions"; (k) the term "Lease"
shall mean "tenancy, subtenancy, lease, sublease, or rental agreement," the
term "lessor" shall mean "landlord, sublandlord, lessor, and sublessor," and
the term "Tenants" or "lessee" shall mean "tenant, subtenant, lessee, and
sublessee"; (l) the term "owned" shall mean "now owned or later acquired"; (m)
the terms "any" and "all" shall mean "any or all"; and (n) the term "on
demand" or "upon demand" shall mean "within five (5) Business Days after
written notice".
11. Joint and Several Liability. This Note shall be the joint and
several obligation of all makers, endorsers, guarantors and sureties, and
shall be binding upon them and their respective successors and assigns and
shall inure to the benefit of Lender and its successors and assigns.
12. Changes in Laws Regarding Taxation. In the event of the passage of
any law of the State of New York, the City of New York, the County of New York
or any other applicable taxing authority deducting from the value of real
property for the purpose of taxation any lien or encumbrance thereon or
changing in any way the laws for the taxation of mortgages or debts secured by
mortgages for federal, state or local purposes or the manner of the collection
of any such taxes, and imposing a tax (other than a tax on income, revenue,
return of principal or reserves or the lack thereof), either directly or
indirectly, on the Instrument, this Note, any of the other Documents or the
Balance, Borrower shall, if permitted by law, pay any tax imposed as a result
of any such law within the statutory period or within thirty (30) days after
demand by Lender, whichever is less; provided, however, that if, in the
opinion of counsel for Lender, Borrower is not permitted by law to pay such
taxes, Lender shall have the right, at its option, to declare the Balance
immediately due and payable upon ninety (90) days' prior written notice to
Borrower.
13. Documentary Stamps and Other Charges. Borrower shall pay all taxes
(excluding income, franchise and doing business taxes), assessments, charges,
expenses, costs and fees (including registration and recording fees and
revenue, stamp and other similar taxes) levied on, or assessed against Lender,
or otherwise required to be paid in connection with any of the Documents or
the Balance. If Borrower shall fail to promptly make such payments after
demand therefor, Lender shall have the right (but not the obligation) to pay
for the same and Borrower shall reimburse Lender therefor immediately upon
demand, with interest at the Default Rate. All such sums paid by Lender shall,
subject to the limitations set forth in Section 1.03 of the Instrument, be
secured by the Instrument.
14. WAIVER OF TRIAL BY JURY. BORROWER HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM FILED BY EITHER PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE,
RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE DOCUMENTS, OR ANY ACTS OR
OMISSIONS OF LENDER IN CONNECTION THEREWITH.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, this Note has been executed by Borrower by its duly
authorized representative as of the date first set forth above.
BORROWER:
SLG 100 PARK LLC, a
Delaware limited liability company
By: SL Green 100 Park LLC,
a New York limited liability company,
its Managing Member
By: SL Green Operating Partnership, L.P.,
a Delaware limited partnership,
its sole Member
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By:_____________________________
Name: Benjamin P. Feldman
Title: Executive Vice President
TABLE OF CONTENTS
Page
ARTICLE I - OBLIGATIONS....................................................4
Section 1.01 Obligations..................................................4
Section 1.02. Documents...................................................4
Section 1.03 Maximum Secured Indebtedness..................................5
ARTICLE II - REPRESENTATIONS AND WARRANTIES................................5
Section 2.01 Legal Status and Authority...................................5
Section 2.02 Validity of Documents........................................5
Section 2.03 Litigation...................................................6
Section 2.04 Intentionally Omitted........................................6
Section 2.05 Tax Status of Borrower.......................................6
Section 2.06 Bankruptcy and Equivalent Value..............................6
Section 2.07 Disclosure...................................................6
Section 2.08 Illegal Activity.............................................6
ARTICLE III - COVENANTS AND AGREEMENTS.....................................6
Section 3.01 Payment of Obligations and Defense of Liens..................6
Section 3.02 Continuation of Existence....................................6
Section 3.03 Taxes and Other Charges......................................7
Section 3.04 Defense of Title, Litigation, and Rights under Documents.....8
Section 3.05 Operation and Maintenance of Property........................8
Section 3.06 Insurance....................................................9
Section 3.07 Damage and Destruction of Property..........................11
Section 3.08 Condemnation................................................13
Section 3.09 Lien and Liabilities........................................14
Section 3.10 Tax and Insurance Deposits..................................15
Section 3.11 ERISA.......................................................15
Section 3.12 Environmental Representations, Warranties and Covenants.....16
Section 3.13 Electronic Payments.........................................18
Section 3.14 Inspection..................................................18
Section 3.15 Records, Reports, and Audits................................18
Section 3.16 Borrower's Certificates.....................................18
Section 3.17 Full Performance Required, Survival of Warranties...........19
Section 3.18 Additional Security.........................................19
Section 3.19 Further Acts................................................19
ARTICLE IV - ADDITIONAL ADVANCES; EXPENSES; SUBROGATION...................19
Section 4.01 Expenses and Advances.......................................19
Section 4.02 Subrogation.................................................19
ARTICLE V - SALE, TRANSFER, OR ENCUMBRANCE OF THE PROPERTY................20
Section 5.01 Due-on-Sale or Encumbrance..................................20
ARTICLE VI - DEFAULTS AND REMEDIES........................................20
Section 6.01 Events of Default...........................................20
Section 6.02. Remedies....................................................21
Section 6.03 Expenses....................................................23
Section 6.04 Rights Pertaining to Sales..................................23
Section 6.05 Applications of Proceeds....................................24
Section 6.06 Additional Provisions as to Remedies........................24
Section 6.07 Waiver of Rights and Defenses...............................24
ARTICLE VII - SECURITY AGREEMENT..........................................25
Section 7.01 Security Agreement..........................................25
ARTICLE VIII - LIMITATION ON PERSONAL LIABILITY AND INDEMNITIES...........25
Section 8.01 Limited Recourse Liability..................................25
Section 8.02 General Indemnity...........................................25
Section 8.03 Transaction Taxes Indemnity.................................25
Section 8.04 Duty to Defend, Costs and Expenses..........................26
Section 8.05 Recourse Obligation and Survival............................26
ARTICLE IX - ADDITIONAL PROVISIONS........................................26
Section 9.01 Usury Savings Clause........................................26
Section 9.02 Notices.....................................................27
Section 9.03. Sole Discretion of Lender..................................29
Section 9.04 Applicable Law, Service of Process, etc. and Submission to
Jurisdiction................................................29
Section 9.05 Construction of Provisions..................................30
Section 9.06 Miscellaneous...............................................31
Section 9.07 Entire Agreement............................................32
Section 9.08 WAIVER OF TRIAL BY JURY.....................................32
Section 9.09 New York Law Provisions.....................................32
Exhibits
- --------
Exhibit A Description of the Land
Exhibit B Personal Property
Exhibit C Permitted Encumbrances
Exhibit D Existing Mortgage
Exhibit E Existing Note
Exhibit F Note
DEFINITIONS
The terms set forth below are defined in the following sections of this
Agreement of Spreader, Consolidation and Modification of Mortgage:
Additional Funds Section 3.07(c)
Affecting the Property Section 3.12(a)
Affiliates Section 9.05(p)
Agent Section 3.05(a)
All Section 9.05(m)
Any Section 9.05(m)
Assessments Section 3.03(a)
Assignment Section B
Award Section 3.08(b)
Bankruptcy Code Section A(ix)
Borrower Preamble
Business Day Section 9.05(o)
Costs Section 4.01
Damage Section 3.07(a)
Default Rate Section 1.01(a)
Deposits Section 3.10
Documents Section 1.02
Environmental Law Section 3.12(a)
Environmental Liens Section 3.12(b)
Environmental Report Section 3.12(a)
ERISA Section 3.11
Event of Default Section 6.01
Existing Mortgage Recitals
Existing Note Recitals
Full Insurable Value Section 3.06(a)
Grace Period Section 6.01(b)
Hazardous Materials Section 3.12(a)
Impositions Section 3.10
Improvements Section A(ii)
Include, Including Section 9.05(f)
Indemnified Parties Section 8.02
Indemnify Section 8.02
Instrument Section D
Insurance Premiums Section 3.10
Land Recitals
Laws Section 3.05(c)
Leases Section A(ix)
Lender Preamble
Liens Section 3.09
Loan Recitals
LMA Section 3.05(a)
Losses Section 8.02
Net Proceeds Section 3.07(d)
Note Recitals
Notices Section 9.02(a)
Obligations Section 1.01
Officer Section 9.05(p)
On Demand Section 9.05(n)
Organization State Section 2.01
Owned Section 9.05(l)
Permitted Encumbrances Section H
PCBs Section 3.12(a)
Person Section 9.05(i)
Personal Property Section 6.02(j)
Property Section A
Provisions Section 9.05(j)
Rating Agency Section 3.06(c)
Release Section 3.12(a)
Rent Loss Proceeds Section 3.07(c)
Rents Section A(x)
Restoration Section 3.07(a)
Security Agreement Section 7.01
Taking Section 3.08(a)
Tenant Section A(vi)
Tenants Section 9.05(k)
Transaction Taxes Section 3.03(c)
U.C.C. Section 2.02
Upon Demand Section 9.05(n)
Violation Section 3.11
Exhibit 2.4
AMENDED, RESTATED AND
CONSOLIDATED MORTGAGE NOTE
New York, New York
US $112,000,000.00 February ____, 2000
THIS AMENDED, RESTATED AND CONSOLIDATED MORTGAGE NOTE (this "Note") by
SLG 100 PARK LLC, a Delaware limited liability company, having a principal
place of business at c/o SL Green Realty Corp., 420 Lexington Avenue, New
York, New York 10170 ("Borrower"), to the order of THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New Jersey corporation ("Lender", which shall also mean
successors and assigns who become holders of this Note), having an office c/o
Prudential Real Estate Investors, 8 Campus Drive, Arbor Circle South,
Parsippany, New Jersey 07054-4493.
W I T N E S S E T H:
WHEREAS, Lender is the owner and holder of a certain mortgage spread,
consolidated and modified by that certain Agreement of Spreader, Consolidation
and Modification of Mortgage of even date herewith between Borrower and Lender
(the mortgage spread, consolidated and modified thereby, the "Instrument";
capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Instrument), and of the note secured thereby
(collectively, the "Existing Note"); and
WHEREAS, Borrower is the current obligor under the Existing Note; and
WHEREAS, Borrower and Lender have agreed in the manner hereinafter set
forth (a) to adjust the interest rate on the Existing Note, (b) to change the
monthly payments on the Existing Note, and (c) to modify and restate in their
entirety all other terms and provisions of the Existing Note,
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated into the operative provisions of this Note by this reference, and
for other good and valuable consideration, the receipt and adequacy of which
are hereby conclusively acknowledged, Borrower hereby represents and warrants
to and covenants and agrees with Lender as follows:
A. Outstanding Indebtedness. The aggregate outstanding indebtedness
evidenced by the Existing Note and secured by the Instrument is One Hundred
Twelve Million Dollars ($112,000,000.00), it being understood that no interest
under the Existing Note is accrued and unpaid for the period prior to the date
hereof, but that interest shall accrue and be paid from and after the date
hereof at the rate or rates herein provided.
B. Amendment and Restatement of Existing Note. The terms, covenants and
provisions of the Existing Note are hereby modified, amended and restated in
their entirety so that henceforth such terms, covenants and provisions shall
be those set forth herein, and the Existing Note, as so modified, amended and
restated, are hereby ratified and confirmed in all respects by Borrower. This
Note does not create any new or additional indebtedness but evidences the same
indebtedness evidenced by the Existing Note and secured by the Instrument.
C. Borrower's Promise to Pay. FOR VALUE RECEIVED, Borrower promises to
pay to the order of Lender at its offices set forth above the principal sum of
One Hundred Twelve Million and No/100 U.S. Dollars ($112,000,000.00), with
interest on the unpaid balance ("Balance") at the rate of eight and
thirty-five one hundredths percent (8.35%) per annum ("Note Rate") from the
date hereof ("Funding Date") until Maturity (defined below.
1. Regular Payments. Principal and interest shall be payable as
follows:
(a) Interest from the Funding Date through February 29, 2000 shall
be due and payable on the Funding Date.
(b) Interest only shall be paid in arrears in monthly installments
of Seven Hundred Seventy Nine Thousand Three Hundred Thirty-Three and
33/100 Dollars ($779,333.33) each, commencing on March 1, 2000 and
continuing on the first (1st) day of each succeeding month to and
including February 28, 2002. Each payment due date is referred to as a
"Due Date".
(c) The entire unpaid Obligations (as defined in the Instrument)
shall be due and payable on January 31, 2002 ("Maturity Date").
"Maturity" shall mean the Maturity Date or earlier date that the
Obligations may be due and payable by acceleration by Lender as provided
in the Documents.
(d) Interest on the Balance for any full month shall be calculated
on the basis of a three hundred sixty (360) day year consisting of
twelve (12) months of thirty (30) days each. For any partial month,
interest due under this Note shall be computed hereunder with respect to
each day during such period by multiplying the Balance at the close of
business on each day (or on the most recent day that Lender was open for
business) by a daily interest factor calculated by dividing the Note
Rate by 360. Interest so computed shall accrue for each and every day
during any partial month on which there is a Balance due hereunder and
including the day on which funds are repaid.
2. Late Payment and Default Interest.
---------------------------------
(a) Late Charge. If any payment due under the Documents is not
fully paid by its Due Date, a late charge of $500.00 per day (the "Daily
Charge") shall be assessed for each day that elapses until payment in
full is made (including the date payment is made); provided, however,
that if any such payments, together with all accrued Daily Charges, are
not fully paid by the fifteenth day following their Due Date, a late
charge equal to four percent (4%) of such payments (the "Late Charge")
shall be assessed and be immediately due and payable. The Late Charge
shall be payable in lieu of Daily Charges that shall have accrued. The
Late Charge may be assessed only once on each overdue payment. These
charges shall be paid to defray the expenses incurred by Lender in
handling and processing such delinquent payment(s) and to compensate
Lender for the loss of the use of such funds. The Daily Charge and Late
Charge shall be secured by the Documents. The imposition of the Daily
Charge, Late Charge, and/or requirement that interest be paid at the
Default Rate (defined below) shall not be construed in any way to (i)
excuse Borrower from its obligation to make each payment under this Note
promptly when due or (ii) preclude Lender from exercising any rights or
remedies available under the Documents upon an Event of Default.
(b) Acceleration. Upon an Event of Default, Lender may declare the
Balance, unpaid accrued interest, and all other Obligations immediately
due and payable in full.
(c) Default Rate. Upon an Event of Default or at Maturity, whether
by acceleration (due to a voluntary or involuntary default) or
otherwise, the entire Obligations (excluding accrued but unpaid interest
if prohibited by law) shall bear interest at the Default Rate. The
"Default Rate" shall be the lesser of (i) the Maximum Rate (defined
below) or (ii) the greater of (A) the Note Rate plus five percent (5%)
or (B) five percent (5%) plus the prime rate (for corporate loans at
large United States money center commercial banks) published in the Wall
Street Journal on the first Business Day (defined below) of the month in
which the Event of Default or Maturity occurs or continues. The term
"Business Day" shall mean a day on which commercial banks or other
institutional lenders are not authorized or required by Laws to close in
the State of New York or in the State of New Jersey.
3. Application of Payments. Before an Event of Default, all payments
received under this Note shall be applied in the following order: (a) to
unpaid Daily Charges, Late Charges and costs of collection; (b) to interest on
the Balance; and (c) then to the Balance. After an Event of Default, all
payments shall be applied in any order determined by Lender in its sole
discretion.
4. Prepayment. This Note may be prepaid, in whole or in part at any time
upon payment of all accrued interest and other Obligations due under the
Documents. No prepayment premium or penalty will be assessed.
5. No Usury. Under no circumstances shall the aggregate amount paid or
to be paid as interest under this Note exceed the highest lawful rate
permitted under applicable usury law ("Maximum Rate"). If under any
circumstances the aggregate amounts paid on this Note shall include interest
payments which would exceed the Maximum Rate, Borrower stipulates that payment
and collection of interest in excess of the Maximum Rate ("Excess Amount")
shall be deemed the result of a mistake by both Borrower and Lender and Lender
shall promptly credit the Excess Amount against the Balance or refund to
Borrower any portion of the Excess Amount that cannot be so credited.
6. Security and Documents Incorporated. This Note is the Note referred to
and secured by the Instrument and is secured by the Property. Borrower shall
observe and perform all of the terms and conditions in the Documents. The
Documents are incorporated into this Note as if fully set forth in this Note.
7. Treatment of Payments. All payments under this Note shall be made,
without offset or deduction, (a) in lawful money of the United States of
America at the office of Lender or at the place (and in the manner) Lender may
specify by written notice to Borrower, (b) in immediately available federal
funds, and (c) if received by Lender prior to 2:00 p.m. local time at such
place, shall be credited on that day or else, at Lender's option, shall be
credited on the next Business Day. Initially (unless waived by Lender), and
until Lender shall direct Borrower otherwise, Borrower shall make all payments
due under this Note in the manner set forth in Section 3.13 of the Instrument.
If any Due Date falls on a day that is not a Business Day, then the payment
shall be deemed to have fallen on the next succeeding Business Day.
8. Limited Recourse Liability. Except to the extent set forth in
Paragraph 8 and Paragraph 9 of this Note, neither the Borrower nor any members
of Borrower (singularly or collectively, the "Exculpated Parties") shall have
any personal liability for the Obligations. Notwithstanding the preceding
sentence, Lender may bring a foreclosure action or other appropriate action to
enforce the Documents or realize upon and protect the Property (including,
without limitation, naming the Exculpated Parties in the actions) and in
addition THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY FOR:
(a) any indemnity or similar instrument furnished in connection
with the Loan;
(b) any unpaid assessments and taxes with respect to the Property
for the one year period prior to an Event of Default and thereafter,
provided that income from the Property had been sufficient to pay the
same;
(c) any security deposits of Tenants not previously applied as
permitted by the terms of the applicable Lease and (i) not turned over
to Lender (or its designee) upon foreclosure, sale (pursuant to power of
sale), or conveyance in lieu thereof in connection with a proceeding
under the Bankruptcy Code or otherwise, or (ii) not turned over to a
receiver or trustee for the Property after appointment;
(d) any insurance proceeds or condemnation awards neither turned
over to Lender (or its designee) nor used in compliance with Sections
3.07 and 3.08, as applicable, of the Instrument;
(e) waste of any material or significant portion of the Property
that has not been expressly consented to by all members of Borrower
and/or expressly consented to by Lender in writing;
(f) any rents or other income from the Property received by any of
the Exculpated Parties (other than Lender or any Affiliate of Lender who
may be an Exculpated Party) after the occurrence of an event that with
the giving of notice or passage of time or both would constitute an
Event of Default under the Documents not otherwise applied to the
Obligations evidenced by this Note, or current (not deferred) operating
expenses of the Property; or (ii) is paid as expenses to a Person
related to or affiliated with any of the Exculpated Parties (except
payments made to Lender under the Loan Documents) unless the payments
are expressly permitted in the Documents; and
(g) all reasonable legal fees, including the allocated costs of
Lender's staff attorneys, and other expenses incurred by Lender in
enforcing the Documents if Borrower contests, delays, or otherwise
hinders or opposes (including the filing of a bankruptcy or equivalent
action or proceeding) any of Lender's enforcement actions.
9. Full Recourse Liability. Notwithstanding the provisions of
Paragraph 8 of this Note, the EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY
for all of the Obligations if:
(a) there shall be any breach or violation of Article V of the
Instrument; or
(b) there shall be any fraud or material misrepresentation by any
of the Exculpated Parties (other than Lender or any Affiliate of Lender
who may be an Exculpated Party) in connection with the Property, the
Documents, or any other aspect of the Loan; or
(c) the Property or any part thereof (other than a Lease of a
Tenant who is not an Affiliate of any Exculpated Party) shall become an
asset in (i) a voluntary bankruptcy or insolvency proceeding or (ii) an
involuntary bankruptcy or insolvency proceeding that is not dismissed
within ninety (90) days of filing; provided, however, that this
Paragraph 9(c) shall not apply if an involuntary bankruptcy is filed by
Lender in its capacity as Lender only.
10. Construction of Provisions. The following rules of construction
shall apply for all purposes of this Note unless the context otherwise
requires: (a) all references to numbered Articles or Paragraphs or to lettered
Exhibits are references to the Articles and Paragraphs hereof and the Exhibits
annexed to this Note and such Exhibits are incorporated into this Note as if
fully set forth in the body of the Note; (b) all captions are used for
convenience and reference only and in no way define, limit, or in any way
affect this Note; (c) words of masculine, feminine, or neuter gender shall
mean and include the correlative words of the other genders, and words
importing the singular number shall mean and include the plural number, and
vice versa; (d) no inference in favor of or against any party shall be drawn
from the fact that such party has drafted any portion of. this Note; (e) all
obligations of Borrower hereunder shall be performed and satisfied by or on
behalf of Borrower at Borrower's sole expense; (f) the terms "include,"
"including," and similar terms shall be construed as if followed by the phrase
"without being limited to"; (g) the terms "Property", "Land", "Improvements",
and "Personal Property" shall be construed as if followed by the phrase "or
any part thereof"; (h) the term "Obligations" shall be construed as if
followed by the phrase "or any other sums secured hereby, or any part
thereof"; (i) the term "Person" shall include natural persons, firms,
partnerships, corporations, limited liability companies, governmental
authorities or agencies, and any other public or private legal entities; (j)
the term "provisions," when used with respect hereto or to any other document
or instrument, shall be construed as if preceded by the phrase "terms,
covenants, agreements, requirements, and/or conditions"; (k) the term "Lease"
shall mean "tenancy, subtenancy, lease, sublease, or rental agreement," the
term "lessor" shall mean "landlord, sublandlord, lessor, and sublessor," and
the term "Tenants" or "lessee" shall mean "tenant, subtenant, lessee, and
sublessee"; (l) the term "owned" shall mean "now owned or later acquired"; (m)
the terms "any" and "all" shall mean "any or all"; and (n) the term "on
demand" or "upon demand" shall mean "within five (5) Business Days after
written notice".
11. Joint and Several Liability. This Note shall be the joint and
several obligation of all makers, endorsers, guarantors and sureties, and
shall be binding upon them and their respective successors and assigns and
shall inure to the benefit of Lender and its successors and assigns.
12. Changes in Laws Regarding Taxation. In the event of the passage of
any law of the State of New York, the City of New York, the County of New York
or any other applicable taxing authority deducting from the value of real
property for the purpose of taxation any lien or encumbrance thereon or
changing in any way the laws for the taxation of mortgages or debts secured by
mortgages for federal, state or local purposes or the manner of the collection
of any such taxes, and imposing a tax (other than a tax on income, revenue,
return of principal or reserves or the lack thereof), either directly or
indirectly, on the Instrument, this Note, any of the other Documents or the
Balance, Borrower shall, if permitted by law, pay any tax imposed as a result
of any such law within the statutory period or within thirty (30) days after
demand by Lender, whichever is less; provided, however, that if, in the
opinion of counsel for Lender, Borrower is not permitted by law to pay such
taxes, Lender shall have the right, at its option, to declare the Balance
immediately due and payable upon ninety (90) days' prior written notice to
Borrower.
13. Documentary Stamps and Other Charges. Borrower shall pay all taxes
(excluding income, franchise and doing business taxes), assessments, charges,
expenses, costs and fees (including registration and recording fees and
revenue, stamp and other similar taxes) levied on, or assessed against Lender,
or otherwise required to be paid in connection with any of the Documents or
the Balance. If Borrower shall fail to promptly make such payments after
demand therefor, Lender shall have the right (but not the obligation) to pay
for the same and Borrower shall reimburse Lender therefor immediately upon
demand, with interest at the Default Rate. All such sums paid by Lender shall,
subject to the limitations set forth in Section 1.03 of the Instrument, be
secured by the Instrument.
14. WAIVER OF TRIAL BY JURY. BORROWER HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM FILED BY EITHER PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE,
RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE DOCUMENTS, OR ANY ACTS OR
OMISSIONS OF LENDER IN CONNECTION THEREWITH.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, this Note has been executed by Borrower by its duly
authorized representative as of the date first set forth above.
BORROWER:
SLG 100 PARK LLC, a
Delaware limited liability company
By: SL Green 100 Park LLC,
a New York limited liability company,
its Managing Member
By: SL Green Operating Partnership,
L.P.,
a Delaware limited partnership,
its sole Member
By: SL Green Realty Corp.,
a Maryland corporation,
its General Partner
By:_________________________
Name: Benjamin P. Feldman
Title: Executive Vice
President
