SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
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Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 14, 2000
RECKSON ASSOCIATES REALTY CORP.
and
RECKSON OPERATING PARTNERSHIP, L.P.
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN ITS CHARTER)
Reckson Associates Realty Corp. Reckson Associates Realty Corp.
Maryland 11-3233650
Reckson Operating Partnership, L.P. Reckson Operating Partnership, L.P.
Delaware 11-3233647
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER ID NUMBER)
INCORPORATION OR ORGANIZATION)
1-13762
(COMMISSION FILE NUMBER)
225 Broadhollow Road 11747
Melville, New York (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(516) 694-6900
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
This Current Report on Form 8-K is being filed to refile certain exhibits
previously filed as exhibits to the Company's Current Reports on Form 8-K, filed
June 25, 1999 and October 25, 1999.
(C) EXHIBITS
10.1 Contract of Sale between 54-55 Street Company and Reckson Operating
Partnership, L.P.
10.2 Agreement of Purchase and Sale between NBBRE-919 Third Avenue
Associates, L.P. and Reckson Operating Partnership, L.P.
<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.
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Michael Maturo
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Michael Maturo
Executive Vice President
and Chief Financial Officer
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner
By: /s/ Michael Maturo
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Michael Maturo
Executive Vice President
and Chief Financial Officer
Date: January 14, 2000
Exhibit 10.1
CONTRACT OF SALE
BETWEEN
54-55 STREET COMPANY,
AS SELLER,
AND
RECKSON OPERATING PARTNERSHIP, L.P.,
AS PURCHASER
DATED AS OF OCTOBER 15, 1999
<PAGE>
TABLE OF CONTENTS
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Page
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GLOSSARY...................................................................iii
SECTION 1. Purchase and Sale of Premises..................................1
SECTION 2. Purchase Price; Downpayment....................................1
SECTION 3. Closing........................................................5
SECTION 4. Termination Option.............................................5
SECTION 5. Title Exceptions...............................................6
SECTION 6. Failure of Seller or Purchaser to Perform......................7
SECTION 7. Representations and Warranties of Seller and Purchaser.........8
SECTION 8. Inspection of the Premises....................................21
SECTION 9. Violations Affecting the Premises.............................22
SECTION 10. Destruction, Damage or Condemnation Affecting the Premises....23
SECTION 11. Seller's Closing Obligations..................................25
SECTION 12. Purchaser's Closing Obligations...............................28
SECTION 13. Apportionments and Adjustments; Closing Costs.................30
SECTION 14. Operation of Premises.........................................35
SECTION 15. Broker........................................................38
SECTION 16. Notices.......................................................38
SECTION 17. Limitation on Survival of Representations, Warranties and
Obligations...................................................40
SECTION 18. Prohibition of Recording......................................40
SECTION 19. Miscellaneous.................................................40
<PAGE>
EXHIBITS
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Exhibit "A" Legal Description of Land
Exhibit "B" Certain Permitted Exceptions
Exhibit "B-1" Title Letter
Exhibit "C" Leases
Exhibit "D" Minskoff Lease
Exhibit "E" Lease Defaults, Delinquencies and Rent Roll
Exhibit "F" Security Deposits
Exhibit "G" Tenant Work
Exhibit "H" Personal Property and Security Agreements
Exhibit "I" Brokerage Agreements and Mendik Management Agreement
Exhibit "J" Curtain Wall Agreement and Sidewalk Bridge Agreement
Exhibit "K" Litigation
Exhibit "L" Environmental
Exhibit "M" Building Employees
Exhibit "M-2" Union Employees
Exhibit "N" Pending Tax Proceedings
Exhibit "O" Form of Deed
Exhibit "P" Form of Bill of Sale
Exhibit "Q" Form of Assignment and Assumption Agreement
Exhibit "R Form of General Assignment and Assumption Agreement
Exhibit "S" Form of Tenant Notice
Exhibit "T" Non-Foreign Status Affidavit
Exhibit "U" Form of Tenant Estoppel
Exhibit "U-1" Form of MTA Estoppel
Exhibit "V" Service Contracts
Exhibit "W" Form of Hearst Letter of Credit
Exhibit "X" The License Agreement
Exhibit "Y" Mendik Commission Agreement
Exhibit "Z" Tax Escrow Agreement
Exhibit "ZZ" Commencement Date Schedule
Exhibit "ZZZ" Lease Clarification Agreement (Burberry)
Schedule "1" Chase Monthly Rent
Schedule "2" Form of Legal Opinion
Schedule "3" Curtain Wall Consent Letter
Schedule "4" Operating Units Representations
Schedule "5" Mannor Corp./Threadtex Rider
Schedule "6" New York Life Insurance Company Letter
<PAGE>
GLOSSARY
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Page
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ADA.........................................................................12
Agreement....................................................................1
Arrearages and Unpaid Escalations Statement.................................25
Authorized Representatives..................................................21
Broker......................................................................15
C&W.........................................................................21
Casualty Termination Notice.................................................23
Chase.......................................................................19
Chase Funds.................................................................19
Chase Monthly Rent..........................................................19
Closing......................................................................5
Closing Date.................................................................5
Commencement Date...........................................................36
Cured Estoppels.............................................................26
Deed........................................................................25
Demand.......................................................................4
Downpayment..................................................................1
Environmental Laws..........................................................13
Escrow Account...............................................................2
Escrow Funds.................................................................2
Escrow Holding Account.......................................................1
Escrowee.....................................................................2
Excluded Tenants............................................................26
General Assignment and Assumption...........................................25
Hazardous Materials.........................................................13
Hearst Tenant................................................................2
Holdback Deductible.........................................................16
Improvements.................................................................1
Indemnify...................................................................22
Land.........................................................................1
Lease Assignment and Assumption.............................................25
Losses......................................................................22
New Lease...................................................................35
New Lease Expenses..........................................................35
Non-Termination Commission..................................................34
Non-Voluntary Liens..........................................................6
Notice......................................................................44
Overage Rent................................................................32
Permitted Exceptions.........................................................6
Premises.....................................................................1
Purchase Price...............................................................1
Purchaser....................................................................1
Purchaser's Demand...........................................................4
Renewal and Expansion Commissions...........................................34
rental......................................................................30
rents.......................................................................30
Representations and Warranties Holdback.....................................15
Restoration Cost............................................................23
Satisfactory Tenant Estoppel................................................26
Scheduled Closing Date.......................................................5
Section 7 Cure..............................................................14
Section 7 Cure Period.......................................................14
Security Deposits...........................................................25
Seller.......................................................................1
Seller and its Representatives..............................................13
Seller's Breach.............................................................14
Seller's Demand..............................................................3
Seller's Estoppel...........................................................26
Seller's Principal..........................................................41
Seller's Section 7 Cure Notice..............................................14
Service Contracts...........................................................36
SPE.........................................................................43
Suite 1802 Tenant...........................................................32
Surrender Agreements.........................................................2
Surrender Period.............................................................2
Taking......................................................................24
Tenant Estoppel.............................................................26
Termination Option...........................................................5
Unit Election...............................................................43
Violations..................................................................22
Voluntary Liens..............................................................6
Warranties Holdback Account.................................................16
Warranties Holdback Funds...................................................16
Warranties Holdback Termination Date........................................18
<PAGE>
CONTRACT OF SALE
CONTRACT OF SALE (the "Agreement"), dated as of October 15, 1999, between
54-55 STREET COMPANY, a joint venture organized under the laws of the State of
New York, having an address at 1350 Avenue of the Americas, New York, New York
10019 ("Seller"), and RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership having an address at c/o Reckson Associates Realty Corp., 10 East
50th Street, 29th Floor, New York, New York 10022 ("Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Seller desires to sell the Premises (as hereinafter defined) to
Purchaser, and Purchaser desires to purchase the Premises from Seller, upon the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. PURCHASE AND SALE OF PREMISES. Subject to and in accordance
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with the provisions of this Agreement, Seller shall sell to Purchaser, and
Purchaser shall purchase from Seller, all of Seller's right, title and interest
in and to the following: (a) the real property described on Exhibit "A" annexed
hereto and made a part hereof (the "Land"), (b) the building and other
improvements situated on the Land (collectively, the "Improvements"), (c) any
land lying in the bed of any street or highway in front of or adjoining the Land
to the center line thereof, (d) any appurtenances to the Land or the
Improvements, and (e) to the extent owned by Seller, the fixtures, equipment and
other personal property attached or appurtenant to the Improvements on the date
hereof and/or to the extent located on the Premises, used in connection with the
ownership, operation and management of the Premises (the items enumerated in
clauses (a)-(e) above being hereinafter collectively referred to as the
"Premises").
SECTION 2. PURCHASE PRICE; DOWNPAYMENT.
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2.1. The aggregate purchase price to be paid by Purchaser to Seller for the
Premises (the "Purchase Price") is ONE HUNDRED TWENTY-SIX MILLION FIVE HUNDRED
THOUSAND AND 00/100 DOLLARS ($126,500,000.00), subject to adjustment as provided
in Section 2.2(d), which amount shall be payable in accordance with the further
provisions of this Section 2.
2.2. (a) Simultaneously with the execution and delivery of this Agreement,
Purchaser shall deliver to Escrowee (as hereinafter defined), by wire transfer
in immediately available federal funds to Citibank, N.A., 153 East 53rd Street,
New York, New York 10043, Account Name - Gibson, Dunn & Crutcher LLP, Account
Number - 43355282, ABA Number 021-000-089 (the "Escrow Holding Account"), the
amount of SIX MILLION AND 00/100 DOLLARS ($6,000,000.00) as a downpayment (the
"Downpayment") on account of the Purchase Price.
(b) The Downpayment, together with all interest earned thereon,
hereinafter collectively shall be referred to as the "Escrow Funds." Escrowee
shall transfer and deposit all Escrow Funds from the Escrow Holding Account to
the separate escrow account ("Escrow Account") referred to below and shall
thereafter hold and disburse the Escrow Funds in accordance with the provisions
of Section 2.3 hereof. As used in this Agreement, the term "Escrowee" shall mean
and refer to Gibson, Dunn & Crutcher LLP.
(c) At the Closing, Purchaser shall (i) pay to Seller the amount of
ONE HUNDRED TWENTY-FOUR MILLION and 00/100 DOLLARS ($124,000,000.00), plus any
Additional Purchase Price which is payable pursuant to Section 2.2(d), less the
amount of the Downpayment actually delivered by Purchaser to Escrowee (less any
funds used by Seller for restoration and not replaced by Purchaser pursuant to
Section 2.3(d) hereof), and less the amount of the holdback provided for in
Section 7.7 hereof, further subject to apportionments and other adjustments made
in accordance with the terms of Section 13 and Section 14 hereof, (ii) pay the
amount of the holdback provided for in Section 7.6 hereof to the Warranties
Holdback Escrowee, which subject to the terms and conditions set forth in
Section 7.6 hereof, shall be paid to Seller on account of the balance of the
Purchase Price not later than nine (9) months after the Closing (except for the
Remy Amerique Commission Funds (as defined herein) which subject to the terms
and conditions set forth in Section 7.6 hereof, shall be paid to Seller not
later than December 31, 2000 as provided below), and (iii) direct Escrowee to
deliver to Seller the Escrow Funds.
(d) The Purchase Price shall be increased above the amount of
$126,500,000.00 in the amount hereinafter set forth (the "Additional Purchase
Price") at such time as Seller delivers to Purchaser, or Purchaser obtains, at
or prior to Closing or within one (1) year after the Closing ("Surrender
Period"), one or more written agreements ("Surrender Agreements") by the current
tenant ("Hearst Tenant") under that certain Lease Agreement dated as of August
7, 1990 between Seller as Landlord and the Hearst Corporation as tenant (as
amended from time to time, the "Hearst Lease") in which the Hearst Tenant
unconditionally agrees to surrender within the Surrender Period, subject to
postponements for force majeure, some or all of the space ("Hearst Space")
occupied by the Hearst Tenant (but not less than one-half (1/2) of a floor nor
more than two (2) full floors without Purchaser's prior written consent to be
granted or withheld in Purchaser's sole and absolute discretion). The Additional
Purchase Price shall be in the amount of ONE MILLION DOLLARS ($1,000,000.00) for
each full floor (pro rata for portions of a floor as aforesaid), as specified in
the Surrender Agreements, up to and including a maximum Additional Purchase
Price of Two Million Dollars ($2,000,000.00). At Closing, Purchaser shall pay
the amount of that portion of the Additional Purchase Price (if any) required
hereunder with respect to all Surrender Agreements delivered at that time (if
any), and Purchaser shall deliver to Seller at the Closing as security for
Purchaser's obligation to pay any Additional Purchase Price as the same may
become due an irrevocable letter of credit ("Hearst LOC") in the amount of (i)
$2,000,000.00 less (ii) that portion of the Additional Purchase Price paid at
the Closing (if any). The Hearst LOC shall be in the form of Exhibit W annexed
hereto and made a part hereof, and shall comply with the following:
(A) The term of the Hearst LOC shall be six (6) months from and
after the date of Closing. The LOC shall be issued by and drawn on The Chase
Manhattan Bank or other bank reasonably acceptable to Seller and shall be
presentable for payment in New York City.
(B) It shall be payable at sight in increments of $1,000,000 for
each full floor (pro rata for portions of a floor as aforesaid) of the Hearst
Space required to be surrendered, upon presentation of (I) Seller's sworn
affidavit that Seller is entitled to the amount set forth therein, and (II)
specifying the portion of the Hearst Space to be surrendered pursuant to the
attached executed Surrender Agreement (showing copies delivered simultaneously
to Purchaser). Notwithstanding any expiration of or failure to draw on the
Hearst LOC, Purchaser shall remain obligated to pay the Additional Purchase
Price as provided herein.
At all times from and after the date hereof through the Surrender
Period, to the extent Hearst desires to surrender any of the Hearst Space,
Seller and Purchaser shall jointly negotiate with Hearst to obtain a surrender
of the Hearst Space to maximize the space to be surrendered, and neither Seller
nor Purchaser shall contact or communicate with the Hearst Tenant (or any parent
or affiliate) or any agent or representative thereof ("Hearst Party"), directly
or indirectly, concerning (x) any extension, renewal, termination or surrender
of the Hearst Lease, or (y) any amendment or modification of the Hearst Lease
related to or which might materially and adversely affect the surrender of any
Hearst Space, without the prior written consent of the other. If either Seller
or Purchaser shall receive any communication from any Hearst Party concerning
the Hearst Space or Hearst Lease during the Surrender Period, it shall promptly
make full disclosure thereof to the other party.
(e) Except as otherwise provided for in this Agreement, all monies
payable to Seller by Purchaser pursuant to this Agreement, shall be paid by wire
transfer in immediately available federal funds to an account or accounts
designated in writing from time to time by Seller.
2.3. (a) Escrowee shall hold the Escrow Funds in escrow in an
interest-bearing account (or as otherwise agreed in writing by Seller, Purchaser
and Escrowee) in a New York Clearing House Bank or in a nationally recognized
"money fund" (the "Escrow Account") until the Closing or sooner termination of
this Agreement and shall pay over or apply the Escrow Funds in accordance with
the further provisions of this Section 2.3. The party which receives the
interest earned on the Downpayment shall pay all income taxes owed in connection
therewith. The employer identification numbers of Seller and Purchaser are set
forth on the signature page hereof Escrowee shall not be liable to Purchaser or
Seller for any loss occasioned by any deposit of the Escrow Funds made in
accordance with this Section 2.3.
(b) At the Closing, the Escrow Funds shall be paid by Escrowee to
Seller and Purchaser shall receive a credit against the Purchase Price equal to
the sum of the Escrow Funds.
(c) Subject to, and following in compliance with, the provisions of
Section 2.3(e) hereof, Escrowee shall deliver to Seller the Escrow Funds at the
expiration of ten (10) business days following Escrowee's receipt of Seller's
written demand ("Seller's Demand") for the Escrow Funds stating that Purchaser
has defaulted in the performance of Purchaser's obligations under this Agreement
and specifying such default in reasonable detail or that Seller is entitled to
use the Escrow Funds to restore the Premises as provided in Section 8.2(b)
hereof (it being understood and agreed that (i) Seller shall have no obligation
to restore the Premises, and (ii) to the extent Seller uses all or any portion
of the Escrow Funds to restore the Premises, Purchaser shall promptly pay to
Escrowee an amount equal to the Escrow Funds used to restore the Premises).
Simultaneously with Seller's delivery of Seller's Demand to Escrowee, Seller
shall deliver a copy of Seller's Demand to Purchaser.
(d) Subject to, and following in compliance with, the provisions of
Section 2.3(e) hereof, Escrowee shall deliver to Purchaser the Escrow Funds at
the expiration of ten (10) business days following Escrowee's receipt of
Purchaser's written demand ("Purchaser's Demand") therefor stating in reasonable
detail that (i) the Closing did not occur on the Scheduled Closing Date (as
hereinafter defined), or on such later date to which the Closing shall have been
adjourned, as a result of Seller's inability or refusal to convey title to the
Premises in accordance with the provisions of this Agreement, or (ii) Purchaser
has properly terminated this Agreement in accordance with the provisions hereof.
Simultaneously with Purchaser's delivery of Purchaser's Demand to Escrowee,
Purchaser shall deliver a copy of Purchaser's Demand to Seller.
(e) If Escrowee receives either Seller's Demand or Purchaser's Demand
(individually, a "Demand") pursuant to and in accordance with Section 2.3(c) or
(d) hereof, as the case may be, then, in such event, prior to releasing the
Escrow Funds, Escrowee shall deliver a copy of Seller's Demand or Purchaser's
Demand, as the case may be, to the non-demanding party within five (5) business
days after receipt thereof by Escrowee. If Escrowee shall not have received a
written objection to the proposed payment by the close of business on the tenth
(10th) business day following the date of Seller's Demand or Purchaser's Demand,
as the case may be, then, in such event, Escrowee is hereby authorized and
directed to make the payment set forth in such Demand on the eleventh (11th)
business day following the date of such Demand. If Escrowee shall have received
a written objection from either party before such payment, then, in such event,
Escrowee shall continue to hold the Escrow Funds until otherwise directed by
written instructions from both of the parties hereto or by a final unappealable
judgment of a court of competent jurisdiction; provided, however, that Escrowee
shall have the right, at any time, to deposit the Escrow Funds with any court of
competent jurisdiction and thereby be relieved and discharged of any further
obligations or liability under this Agreement. Escrowee shall give written
notice of any such deposit to Seller and Purchaser. Escrowee shall be entitled
to rely upon the authenticity of any signature and/or the validity of any
writing received by Escrowee pursuant to, or otherwise relating to, this
Agreement. Any writing signed by any two (2) of the "parties of the first part"
of Seller, on behalf of Seller, shall be sufficient to bind Seller, and Escrowee
shall be entitled to rely thereon. The "parties of the first part" of Seller are
Marjorie Minskoff Schleifer (whose official successor as such party of the first
part is Jean Minskoff Grant), Myron A. Minskoff (whose official successor as
such party of the first part is Sara Minskoff Grant), and the Estate of Jerome
Minskoff (whose co-executors are Patricia Minskoff and United States Trust
Company of New York).
(f) The parties acknowledge and agree that (i) Escrowee, in its
capacity as the holder of the Escrow Funds hereunder, is acting solely as a
stakeholder at the parties' request and for their convenience; (ii) although
Escrowee, in its capacity as attorney, acts as the attorney for Seller in
connection with the transactions contemplated herein, Escrowee shall not be
deemed to be the agent of either of the parties hereto as holder of the Escrow
Funds (provided, however, that the parties hereto acknowledge and agree that (x)
Purchaser, by its execution and delivery of this Agreement, has pledged to
Seller the Escrow Funds as security for Purchaser's obligations hereunder, (y)
Purchaser hereby grants to Seller a first priority lien on, and security
interest in, the Escrow Funds, and (z) Escrowee shall be deemed to be Seller's
agent for the purposes of such pledge and grant of security interest); (iii) any
conflict of interest that may exist because of Escrowee's representation of
Seller hereunder as attorney and/or acting as agent with respect to said pledge
and grant of security interest is hereby waived; and (iv) Escrowee shall not be
liable to either of the parties hereto or to any third-party for any act or
omission on its part as Escrowee unless due to Escrowee's gross negligence or
willful misconduct. Seller and Purchaser, jointly and severally, shall
indemnify, defend and hold harmless Escrowee from and against any and all
losses, liabilities, costs, claims, damages or expenses (including, without
limitation, reasonable attorneys' fees and costs) which may be incurred or
suffered by Escrowee in connection with the performance of Escrowee's duties
hereunder, excepting Escrowee's gross negligence or willful misconduct. As
between Seller and Purchaser, the party responsible for the acts or omissions
giving rise to the foregoing indemnity obligation, shall be liable to the other
party for contribution or reimbursement.
SECTION 3. CLOSING.
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3.1. (a) The closing of the transaction contemplated by this Agreement (the
"Closing") shall occur on November 30, 1999 (the "Scheduled Closing Date"), or
on such earlier date as Purchaser and Seller shall mutually agree upon, subject
to adjournment as hereafter provided; provided, however, notwithstanding any
provision of this Agreement to the contrary, in no event shall the Closing be
adjourned under any provision of this Agreement to a date later than January 31,
2000. The Closing shall occur at the offices of Seller's attorney, Gibson, Dunn
& Crutcher, LLP, at 200 Park Avenue, New York, New York 10166 at 10:00 a.m. on
the Scheduled Closing Date or at such other time or place as shall be agreed
upon by the parties. The date on which the Closing shall actually occur is
referred to herein as the "Closing Date".
(b) In addition to Seller's rights to adjourn the Closing set forth
elsewhere in this Agreement, each party hereto shall have the one-time right to
adjourn the Scheduled Closing Date (as theretofore adjourned) for up to seven
(7) days in the aggregate.
(c) Provided that Seller has delivered to New York Life Insurance
Company ("New York Life") the letter with the same substance as the form
attached hereto as Schedule 6 on or before October 22, 1999, Seller shall have
the right to postpone the Closing Date up to the date (the "60-Day Date") that
is 60 days after the delivery to New York Life of such letter, if so required by
New York Life, provided that the Closing Date shall not be extended beyond the
60-Day Date as a result of this Section 3.1(c).
SECTION 4. TERMINATION OPTION.
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4.1. For the purposes of this Agreement, the term "Termination Option"
shall mean the termination of this Agreement by Purchaser pursuant to any
express right of termination granted to Purchaser herein, which Termination
Option shall be exercised by the giving of a written notice of termination from
Purchaser to Escrowee as provided in the applicable provisions of this
Agreement. Upon the proper exercise of the Termination Option by Purchaser,
Purchaser shall be entitled to the Escrow Funds, subject to the provisions of
Section 2.3 and Section 8.2 hereof, and this Agreement shall be deemed
terminated automatically and of no further force or effect and neither party
hereto shall have any further rights or obligations hereunder, without the
necessity for any further notice, instrument or document or action by or between
either of the parties; provided, however, that the indemnities contained in
Section 8.2 and Section 15 hereof shall survive any such termination, together
with all other indemnities, representations, warranties and obligations which
are specifically provided herein to survive any such termination, in each case
for a period of 9 months from the date of termination.
SECTION 5. TITLE EXCEPTIONS.
----------------
5.1. At the Closing, provided that neither Purchaser nor Seller has
terminated this Agreement pursuant to the terms hereof, Seller shall transfer
title to the Premises to Purchaser pursuant to the Deed (as hereinafter
defined), subject only to the following (the "Permitted Exceptions"): (a) the
list of items designated in the pro forma title policy issued by Commonwealth
Land Title Insurance Company ("Commonwealth") which are set forth on Exhibit "B"
annexed hereto and made a part hereof (provided that the actual title policy may
be issued by Commonwealth, First American Title Insurance Company, or Chicago
Title Insurance Company) [collectively, the "Title Insurer"]; (b) the
Violations, if any, referred to in Section 9 hereof; and (c) all leases and
tenancies (as tenants only) affecting the Premises described on Exhibit "C"
annexed hereto and made a part hereof.
5.2. Seller shall, on or prior to the Closing, pay, discharge or remove of
record or cause to be paid, discharged or removed of record, at Seller's
expense, all of the following items: (a) the items listed in the letter (the
"Title Letter") addressed to Seller from Title Insurer set forth on Exhibit
"B-1; (b) any encumbrances ("Voluntary Liens") which Seller has granted,
suffered or allowed to be placed upon the Premises, including without limitation
mechanics' liens and federal, state and municipal tax liens against the Seller
which are other than Permitted Exceptions (other than those permitted to be
created by tenants under their leases); provided, however, that a lien or
encumbrance created by a tenant that is not permitted under its respective lease
shall not be deemed a Voluntary Lien; and (c) any other encumbrances
("Non-Voluntary Liens") placed on the Premises which are not (I) Voluntary Liens
or (II) Permitted Exceptions or (III) items listed in the letter referred to in
Section 5.2(a); provided that Seller shall not be obligated to spend more than
the aggregate amount of $250,000.00 to omit or satisfy or discharge (or provide
a credit for the funds necessary to accomplish the same) Non-Voluntary Liens.
Without limiting the foregoing, Seller shall use its best efforts to cause the
holder of any mortgages encumbering the Premises to assign said mortgages to
Purchaser's designee or Lender without charge to Purchaser, provided that Seller
shall not be required to incur any costs, fees or expenses nor to commence any
proceedings or litigation in connection therewith, and in no event shall
delivery of such assignment(s) constitute a condition to the Closing.
5.3. Notwithstanding any provision contained herein to the contrary, no
defect or exception to title shall be deemed a failure of Seller's obligations
entitling Purchaser to exercise the Termination Option which Seller shall, at
its discretion, (a) elect to cure by notice to Purchaser, and which shall have
been cured at or before the Closing or (b) cause the Title Insurer to omit from
the final title insurance policy. Seller shall have no obligation to expend any
funds or otherwise to cure any title defects, except in each case as set forth
in Section 5.2.
SECTION 6. FAILURE OF SELLER OR PURCHASER TO PERFORM.
-----------------------------------------
6.1. (a) If Seller shall be unable to convey title to the Premises to
Purchaser in accordance with this Agreement for reasons other than default by
Seller under this Agreement, then, in such event, as its sole and exclusive
remedies hereunder, Purchaser shall be entitled either (i) to accept such title
as Seller is able to convey, without any credit, reduction, adjustment or
abatement in, to or of the Purchase Price (except as otherwise provided for
specifically herein), or (ii) to terminate this Agreement by exercise of the
Termination Option on or before the Closing Date, it being the intention of the
parties that Purchaser hereby knowingly and with the advice of counsel waives
and relinquishes any and all other rights and remedies at law or in equity,
including, but not limited to, damages or specific performance.
(b) If Seller shall default in the performance of its obligations
hereunder, subject to Seller's rights to cure such default as provided in this
Agreement (it being understood and agreed that such right to cure shall not
extend past January 31, 2000 as set forth in Section 3.1(a) hereof), then in
such event, as the sole and exclusive remedies of Purchaser hereunder (other
than the remedies of Section 6.1(a)(i), which shall remain available to
Purchaser), Purchaser shall be entitled either (i) to terminate this Agreement
by exercise of the Termination Option on or before the Closing Date, or (ii) to
bring an action for specific performance of the terms of this Agreement for
conveyance of the Premises in accordance with the terms of this Agreement, it
being the intention of the parties that Purchaser knowingly and with the advice
of counsel hereby waives and relinquishes any and all other rights and remedies
at law or in equity, including, without limitation, any claim for damages.
Notwithstanding the foregoing, the indemnity of Seller contained in Section 15
hereof shall survive any termination of this Agreement pursuant to Sections
6.1(a) and 6.1(b) for a period of nine (9) months from the date of the Closing.
6.2. Provided that Purchaser is obligated to close hereunder and Seller is
ready, willing and able to consummate the transactions contemplated hereby, if
Purchaser shall materially default in the performance of any of its obligations
hereunder, then, in such event, as its sole and exclusive remedy hereunder,
Seller shall be entitled to terminate this Agreement and retain the Escrow Funds
as liquidated and agreed damages for Purchaser's default (excluding all
indemnities of Purchaser herein, for which the Escrow Funds may be subject to
Seller's claims for actual Losses as provided herein), it being agreed by the
parties, each knowingly and with the advice of separate counsel, that it would
be difficult to calculate precisely Seller's actual damages in the event of such
a default by Purchaser and that the liquidated damages set forth herein
represent a fair and reasonable estimate by Seller and Purchaser of the damages
(direct, indirect and consequential) which would be suffered by Seller as a
result of Purchaser's default hereunder (excluding Purchaser's indemnities as
aforesaid). If Seller shall elect to terminate this Agreement pursuant to this
Section 6.2, then, in such event, upon Seller's receipt of the Escrow Funds,
this Agreement shall terminate automatically and be of no further force or
effect and neither party hereto shall have any further rights or obligations
hereunder or thereunder without the necessity for any further notice,
instrument, document or action by or between any of the parties; provided,
however, that the indemnities contained in Section 8.2 and Section 15 hereof and
all other indemnities of Purchaser provided in this Agreement shall survive any
such termination for a period of nine (9) months from the date of the Closing
and shall be separately and additionally enforceable and/or recoverable by the
non-indemnifying party.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
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7.1. Seller hereby represents and warrants to Purchaser as follows as of
the date hereof:
(a) Seller is a valid and existing joint venture which is treated as a
general partnership under the laws of the State of New York.
(b) Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement on its part to be
performed, has duly authorized the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby on its part to be
performed, and has duly executed and delivered this Agreement, and all of the
obligations of Seller hereunder constitute and, upon the execution and delivery
by Seller of the other documents and instruments to be executed and delivered by
Seller pursuant hereto, all obligations of Seller thereunder will constitute the
legal, valid and binding obligations of Seller, enforceable against it in
accordance with their respective terms subject to: (i) the effect of any
bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws
affecting the enforcement of creditors' rights generally (including without
limitation, the effect of statutory or other laws regarding fraudulent transfers
or preferential transfers), (ii) general principles of equity, including without
limitation, standards of due process, materiality, good faith, reasonableness
and fair dealing, and (iii) the extent to which any provisions may be deemed
unenforceable as contrary to public policy.
(c) The execution, delivery and performance of this Agreement, and all
other agreements, documents and instruments to be executed by Seller pursuant to
this Agreement, when duly executed and delivered by Seller, will each constitute
the binding obligation of Seller; and such execution and consummation of the
transaction contemplated hereby does not (i) breach or violate any
organizational documents of Seller, (ii) to Seller's knowledge, conflict with or
violate or result in a breach of any of the provisions of, or constitute a
default under, any agreement or instrument to which Seller is a party or by
which it or any of its property is bound, (iii) conflict with or violate any
judgment, order, writ, injunction or decree binding on Seller or any of its
property or (iv) to Seller's knowledge (without inquiry), conflict with or
violate any law, rule, regulation or ordinance applicable to Seller or any of
its property.
(d) No approval, authorization, order, license or consent of, or
registration or filing with, any governmental authority or regulatory body is
required in connection with the execution and delivery by Seller of this
Agreement and the consummation by Seller of the transactions contemplated
hereby, other than filing and paying New York State and New York City transfer
tax returns and taxes, respectively.
(e) Seller is solvent and has not filed, nor has there been filed
against it, nor do grounds exist for the filing of, any voluntary or involuntary
petition in bankruptcy or insolvency and no receiver or trustee or similar
custodian has been appointed with respect to any of Seller's property, and
Seller has not received written notice from any bankruptcy court that any
partner of Seller is subject to any voluntary or involuntary bankruptcy or
insolvency proceeding.
(f) To Seller's knowledge, except for the Leases, true and complete
copies of which have, to Seller's knowledge, been delivered to Purchaser, there
are no leases, tenancies, rental agreements, occupancy rights or possessory
rights, and to Seller's knowledge, there are no subtenancies which Seller has
consented to in writing (other than with respect to Suite 1802), in each case
affecting any portion of the Premises as of the date hereof. Suite 2305 is
leased to Myron A. Minskoff, Inc. pursuant to the lease ("Minskoff Lease"), an
executed copy of which is annexed hereto as Exhibit "D" and made a part hereof
With respect to the Leases, to Seller's knowledge, except as set forth on
Exhibit "E" annexed hereto and made a part hereof: (i) all of the Leases are in
full force and effect and none of the Leases has been modified, amended or
extended; (ii) there are no pending summary proceedings for the eviction of any
tenant under the Leases, there are no pending proceedings or pending written
claims by any tenant against Seller for offsets against rent or additional rent
or for damages or other redress, and no tenant has delivered written notice to
Seller that such tenant is disputing (x) the amount of additional rent or
escalation payments due pursuant to such tenant's Lease or (y) the commencement
date or the rent commencement date under its Lease which dispute remains
unresolved; (iii) Seller has not received any written notice from any tenant
claiming that Seller is in default of any of its obligations under any Lease,
which default has not been cured; (iv) Seller has not sent any written notice,
except as set forth on Exhibit "E", to any tenant claiming that such tenant is
in default of any of its obligations under any Lease, which default remains
uncured; (v) except as set forth on Exhibit "E" there are no delinquencies in
any rental payments due under any of the Leases; (vi) Exhibit "F" attached
hereto constitutes a true, correct and complete list of the security deposits
held by Seller with respect to the Leases (the "Security Deposits"), and the
bank(s) and account number(s) where such security deposits are maintained and,
in the case of each Letter of Credit, the current expiration date thereof; (vii)
no renewal or extension options have been granted to any tenant other than those
set forth in the Leases; (viii) no tenant or other person has the option to
purchase the Premises or a right of first offer or refusal to do so; (ix) no
brokerage commission or other similar compensation is now or hereafter will
become due or payable with respect to or on account of any of the Leases other
than (A) the brokerage commissions set forth on Exhibit "I" and (B) any such
amounts which may become due and payable as a result of the exercise of any
expansion or renewal option following the date hereof or as set forth in the
Mendik Management Agreement attached hereto as Exhibit "I"; (xi) no tenant has
delivered written notice of its termination of its Lease (or the surrender of
any space demised thereunder) or of its intention to so terminate its Lease or
surrender any space; (xii) except for collateral assignments of leases and rents
given to any existing mortgage holder of the Property (which Seller will use its
best efforts, subject to the limitations of Section 5.2 hereof, to cause to be
assigned to Purchaser at Closing or, if not so assigned, which Seller will cause
to be released of record), Seller has not given any other assignment, pledge or
encumbrance of its interest in the Leases or the rents payable thereunder;
(xiii) all tenant work, free rent and any other tenant inducement obligations
under the Leases have been satisfied by Seller, except as set forth on Exhibit
"G" attached hereto; (xiv) attached as Exhibit "E" is a copy of the rent roll
with respect to the Leases which is true, correct and complete; (xv) the dates
set forth on the attached "Exhibit "ZZ" as the "commencement date" and the "rent
commencement date" (to the extent Seller has such information) and the dates set
forth on the attached rent roll as the "expiration date" accurately reflect the
applicable tenant's commencement date, rent commencement date and expiration
date under its Lease; and (xvi) Seller has not received written notice of the
non-renewal of any Letter of Credit posted as a Security Deposit under the
Leases.
(g) All furnishings, fixtures, machinery, equipment, supplies, tools
and other items of personal property owned by Seller and located at and used in
connection with the Premises as listed on Exhibit "H" annexed hereto and made a
part hereof, are free and clear of all security interests, conditional sales
agreements and title retention agreements other than those described on Exhibit
"H".
(h) Seller is not a "foreign person" within the meaning of Section
1445 of the Internal Revenue Code, as amended.
(i) To Seller's knowledge, Seller has not received written notice of
any condemnation or eminent domain proceeding pending or threatened, in writing,
against the Premises or any part thereof.
(j) To Seller's knowledge, Exhibit "I" annexed hereto and made a part
hereof is a list of all written agreements affecting the Premises as of the date
hereof to which Seller is a party with respect to brokerage commissions,
finder's fees or real estate agent's fees for the execution of the Leases.
(k) Except for the Service Contracts, and except for the Curtain Wall
Agreement and Sidewalk Bridge Agreement (the Curtain Wall Agreement and Sidewalk
Bridge Agreement are hereinafter collectively referred to as the "Exterior
Agreements"), true copies of which are annexed hereto as Exhibit "J", to
Seller's knowledge Seller is not a party to any written contracts (including,
without limitation, any architect's or engineering agreement) which remain to be
performed with respect to any improvements to the Premises, and the Service
Contracts, the Curtain Wall Agreement and the Sidewalk Bridge Agreement are in
full force and effect, without written notice of default to or by any party.
Except as set forth in the next sentence, no additional amounts shall be payable
with respect to the Exterior Agreements. The work contemplated by the Exterior
Agreements is intended to be completed on or before the Closing, but if it is
not so completed, Seller shall at the Closing (i) use its best efforts (without
Seller being required to incur any fees, costs or expenses nor to commence any
proceeding or litigation in connection therewith), to deliver to Purchaser a
consent to the assignment of the Exterior Agreements to Purchaser from the other
parties to the Exterior Agreements (it being agreed that in no event shall
delivery of such consent constitute a condition to Closing), and in the event of
such consent, (ii) assign the Exterior Agreements to Purchaser and the same
shall be assumed by Purchaser by inclusion in Exhibit "R" annexed hereto and
made a part hereof, and (iii) Seller shall give Purchaser a credit against the
Purchase Price for the balance of the stated cost of completion. If consent to
such assignment shall not be obtained, Seller agrees at Purchaser's request and
at Purchaser's expense, to enforce any applicable provision of the Exterior
Agreements after the Closing for the benefit of Purchaser. The preceding
sentence shall survive the Closing. Attached hereto as Schedule 3 is a consent
to the transfer of the warranties under the Curtain Wall Agreement, which is
approved by Purchaser, and which warranties shall in all events be assigned to
Purchaser at Closing by inclusion in Exhibit "R" attached hereto.
(l) To Seller's knowledge, there is no litigation, claim, action or
proceeding pending or threatened against Seller or the Premises, that, if
determined adversely to Seller, would result in any material adverse change in
the business, operation, affairs or condition of the Premises, in any case which
is uninsured or would materially and adversely affect the enforceability of this
Agreement or any other document or instrument executed or to be executed in
connection herewith or the ability of Seller to perform its obligations
hereunder or consummate the transactions contemplated hereby. No written
material dispute currently exists under the Exterior Agreements or any of the
Service Contracts to Seller's knowledge. To Seller's knowledge, Exhibit "K"
annexed hereto and made a part hereof, sets forth all litigation, claims,
actions or proceedings currently affecting Seller or the Premises (including,
without limitation, litigation with building employees and tenants).
(m) To Seller's knowledge, except as disclosed on Exhibit "L" hereto,
(i) Seller has not received any written notice, demand, letter, claim or request
for information regarding the presence of Hazardous Substances or liability
under any Environmental Law with respect to the Premises; and (ii) Seller has
not received any written notice (the subject of which has not been fully cured)
that the Premises is currently subject to any orders, decrees, injunctions or
any other proceedings or requirements imposed by any governmental authority or
third party pursuant to any Environmental Law.
(n) To Seller's knowledge, the insurance policies maintained by Seller
covering the Premises have limits of coverage, deductible amounts and expiration
dates (and such insurance policies are in full force and effect) sufficient to
cover Seller's financial obligations to restore the Premises or credit Purchaser
pursuant to Section 10.
(o) To Seller's knowledge: Subject to the provisions of Section 14.4,
Exhibit "M" is a true correct and complete list of all employees at the Building
and their wages, and a list of all employment, union or other similar agreements
or any pension, profit-sharing, insurance or other employee benefit plans to
which Seller is a party and relating to the Premises or the employees; and
Seller has not received any written notice claiming a default by Seller under
any of the aforementioned employee agreements.
(p) To Seller's knowledge, Exhibit "N" sets forth a true, correct and
complete list of all pending tax certiorari proceedings, the name of the counsel
representing Seller with respect thereto and the status of such proceedings.
(q) To Seller's knowledge, Seller has not received written notice of
any insolvency or bankruptcy proceeding involving any tenant, licensee or
occupant (or guarantor of the same) under any Lease.
As used in this Agreement, the words "to Seller's knowledge" or words of
similar import shall be deemed to mean, and shall be limited to, the actual (as
distinguished from implied, imputed or constructive) knowledge of any one or
more of (1) Jean Minskoff Grant, (2) Robb Aley Allan, (3) Steven Scott
Kirkpatrick of United States Trust Company of New York, Co-Executor of the
Estate of Jerome Minskoff and (4) Patricia Minskoff , Co-Executor of the Estate
of Jerome Minskoff (collectively, "Seller's Knowledge Persons"), which with
respect to 1-4 above includes (i) making inquiry of Mendik Management Company,
Inc., the current manager of the Building, and (ii) making general inquiry of
Myron A. Minskoff and Marjorie Minskoff Schleifer as to such persons' knowledge
of any matters which materially and adversely affect Seller's warranties and
representations, but (iii) without Seller's Knowledge Persons or any of them
having any obligation to make any other independent inquiry or investigation.
7.2. Except as set forth in Section 7.1 hereof or in other express
provisions of this Agreement, Seller makes no representation, warranty or
covenant of any kind with respect to: the Premises; any environmental conditions
at, or with respect to, the Premises; the compliance or non-compliance of the
Premises or any tenant-occupied space with the provisions of any applicable
local, municipal, state or federal statute, law, ordinance, rule or regulation
(including administrative rules and regulations), including without limitation
the zoning regulations or other governmental requirements applicable to, or with
respect to, the Premises or the Americans With Disabilities Act ("ADA"); the
site or physical conditions applicable to, or with respect to, the Premises; the
Leases; or any other matters whatsoever affecting the title, use, enjoyment,
occupancy, operation, management, leasing, or condition to, of or with respect
to the Premises or any part thereof.
7.3. Purchaser hereby represents and warrants to Seller as follows:
(a) Purchaser is a limited partnership duly organized, validly
existing and in good standing under the laws of Delaware.
(b) Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement on its part to be
performed, has duly authorized the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby on its part to be
performed, and has duly executed and delivered this Agreement, and all of the
obligations of Purchaser hereunder constitute and, upon the execution and
delivery by Purchaser of the other documents and instruments to be executed and
delivered by Purchaser pursuant hereto, all obligations of Purchaser thereunder
will constitute the legal, valid and binding obligations of Purchaser,
enforceable against it in accordance with their respective terms subject to (i)
the effect of any bankruptcy, insolvency, reorganization, moratorium,
arrangement or similar laws affecting the enforcement of creditors' rights
generally (including without limitation, the effect of statutory or other laws
regarding fraudulent transfers or preferential transfers), (ii) general
principals of equity, including without limitation, standards of due process,
materiality, good faith, reasonableness and fair dealing, and (iii) the extent
to which any provisions hereof may be deemed unenforceable as contrary to public
policy.
(c) The execution, delivery and performance of this Agreement, and
all other agreements, documents and instruments to be executed by Purchaser
pursuant to this Agreement, when duly executed and delivered by Purchaser,
will each constitute the binding obligation of Purchaser, and such execution
and consummation of the transaction contemplated hereby does not (i)
contravene the operating or partnership agreement of Purchaser or breach or
violate any organizational documents of Purchaser, (ii) to Purchaser's
knowledge, conflict with or violate or result in a breach of any of the
provisions of, or constitute a default under, any agreement or instrument to
which Purchaser is a party or by which it or any of its property is bound,
(iii) conflict with or violate any judgment, order, writ, injunction or decree
binding on Purchaser or any of its property or (iv) to Purchaser's knowledge
(without inquiry), conflict with or violate any law, rule, regulation or
ordinance applicable to Purchaser or any of its property.
(d) As of the Closing Date, Purchaser shall have inspected the
Premises and, as a result of such inspection, shall be fully familiar with the
access to and from the Premises, the present physical and financial condition
of the Premises and the present state of repair of the Premises. Subject to
the provisions of this Agreement, at the Closing, Purchaser shall accept the
Premises "AS IS", "WHERE IS" and "WITH ALL FAULTS" (whether latent, patent or
detectable or not) on the Closing Date, without any reduction in the Purchase
Price for any change in the physical or financial condition occurring from and
after the date hereof Purchaser acknowledges and agrees that (i) except as
otherwise specifically set forth in this Agreement, neither Seller nor any of
its direct or indirect principals, members, joint venturers, partners or
affiliates, nor its or their employees, agents, brokers and representatives
(collectively, "Seller and its Representatives") nor any other person, has
made any representation, warranty, promise or covenant, express or implied,
with respect to the Premises, the fitness, merchantability, suitability or
adequacy of the Premises for any particular purpose, any environmental
condition at or with respect to the Premises, the compliance or non-compliance
of the Premises or any tenant-occupied space under the provisions of the ADA,
the site or physical conditions applicable to or with respect to the Premises,
the zoning regulations or other governmental requirements applicable to or
with respect to the Premises, the Leases, or any other matters whatsoever
affecting the title, use, enjoyment, occupancy, operation, management,
leasing, ownership or condition to, of or with respect to the Premises, or any
part thereof, and (ii) neither Seller nor any of its Representatives nor any
other person will have, or be subject to, any liability to Purchaser or any
other person resulting from the distribution to Purchaser, or Purchaser's use
of, any information pertaining to the Premises which is not specifically set
forth in this Agreement. Without limiting the generality of the foregoing,
Purchaser further acknowledges and agrees that, except as otherwise
specifically set forth in Section 7.1(m) hereof (subject to the limitations of
Sections 7.5 and 19.10), no representation, warranty, covenant or indemnity
has been made or will be given to Purchaser or any other person in respect of
any environmental liability with respect to any dangerous, toxic or hazardous
wastes, materials, pollutants or substances ("Hazardous Materials"), as such
terms are defined in federal, state and local environmental laws and
regulations, including, without limitation, the United States Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
(collectively, "Environmental Laws"). Purchaser also acknowledges and agrees
that, except as otherwise specifically set forth in Section 7.1(m) hereof
(subject to the limitations of Section 7.5 and Section 19.10), in no event
whatsoever shall Seller or its Representatives have any liability to
Purchaser, or otherwise, with respect to Hazardous Materials affecting the
Premises or Environmental Laws. Purchaser also represents that, at the
Closing, Purchaser will have had sufficient opportunity to conduct such
investigations of and with respect to the Premises as it has deemed necessary
and advisable. Purchaser's representations, warranties, acknowledgments and
agreements set forth in this Section 7.3(d) shall survive the Closing.
(e) No approval, authorization, order, license or consent of, or
registration or filing with, any governmental authority or regulatory body is
required in connection with the execution and delivery by Purchaser of this
Agreement or the consummation by Purchaser of the transactions contemplated
hereby.
(f) There is no litigation, claim or proceeding pending or, to
Purchaser's knowledge, threatened in writing against Purchaser in any court or
before any governmental agency or instrumentality that, if determined
adversely to Purchaser, would materially and adversely affect the
enforceability of this Agreement or any other document or instrument executed
or to be executed in connection herewith or the ability of Purchaser to
perform its obligations hereunder or consummate the transactions contemplated
hereby.
(g) Purchaser is solvent and has not filed, nor has there been filed
against it, nor do grounds exist for the filing of, any voluntary or
involuntary petition in bankruptcy or insolvency and no receiver or trustee or
similar custodian has been appointed with respect to its property or any
material portion thereof.
(h) As of the date hereof, Purchaser has available to it sufficient
funds with which to pay the Purchase Price and to meet its other financial
obligations to Seller under this Agreement. The obligations of Purchaser
hereunder are not subject to any contingency for the benefit of Purchaser
regarding the availability of financing (whether secured or unsecured) to
provide funds to Purchaser to consummate the transactions contemplated hereby.
(i) Except as specifically set forth in this Agreement, Purchaser
has not been induced by, and has not relied upon, any representation,
warranty, promise or statement made by Seller or any of its Representatives.
Purchaser's representations set forth in this Section 7.3(i) shall survive the
Closing.
7.4. If at or before the Closing Purchaser becomes aware that any
representation made by Seller in this Section 7 is materially inaccurate,
Purchaser shall promptly send written notice thereof to Seller. In such event,
prior to or at the Closing, at Seller's option the Closing shall be adjourned
for five (5) business days, during which time Seller shall have the right to
give notice to Purchaser ("Seller's Section 7 Cure Notice") that it elects to
take such action as is necessary to cause such representation to be true
("Section 7 Cure") within thirty (30) days following Seller's Section 7 Cure
Notice ("Section 7 Cure Period") (it being understood that Seller shall have
no obligation to do so), and in such event the Closing shall be adjourned for
up to "an additional thirty (30) days (or any shorter period which Seller may
specify in Seller's Section 7 Cure Notice). If Seller does not timely give a
Seller's Section 7 Cure Notice, or effect such Section 7 Cure within such
30-day period, Purchaser shall either (x) terminate this Agreement by exercise
of its Termination Option on or before the Closing Date or (y) waive (or be
deemed to waive) objection to such misrepresentation and close this
transaction without (i) abatement of the Purchase Price, (ii) credit or
allowance of any kind or (iii) any claim or right of action against Seller for
damages or otherwise in connection therewith. As used in this Agreement, the
words "to Purchaser's knowledge" or words of similar import shall be deemed to
mean, and shall be limited to, the actual (as distinguished from implied,
imputed or constructive) knowledge of any one or more of Philip M. Waterman
III, Richard Conniff and Jason Barnett.
7.5. Seller's representations and warranties set forth in this Section 7
shall survive the Closing for a period of nine (9) months following the Closing;
provided, however, that any claim that there has been a breach of such
representations and warranties ("Seller's Breach") shall be deemed forever
waived by Purchaser if (a) such breach is actually known to Purchaser on or
before the Closing and not disclosed to Seller in writing (subject to Section
7.4), and (b) if such breach is not actually known by Purchaser on or before the
Closing and a claim is not made in writing by Purchaser within nine (9) months
following the Closing Date. In no event shall Purchaser have any right or claim
to rescind the purchase of the Premises after the Closing by reason of any
Seller's Breach, but Purchaser shall be limited solely to recover damages
(excluding punitive or consequential damages), which shall be paid solely from
the Representations and Warranties Holdback (as hereinafter defined).
7.6. Holdback for Survival of Seller's Representations, Warranties and
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Indemnities.
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(a) At the Closing, Purchaser shall deliver the sum of TWO MILLION
FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00) (the "Representations and
Warranties Holdback") to Warranties Holdback Escrowee (as hereafter defined), by
wire transfer, in immediately available funds to Citibank, 120 Broadway, New
York, NY, 10043, ABA #021000089, Attention: Rose DiGiorgio, Private Banking
Division, For the Account of Fried, Frank, Harris, Shriver & Jacobson, Account
Number: 37029464, Reference: Reckson Warranties Holdback, on account of the
balance of the Purchase Price which, subject to the terms and conditions set
forth in this Section 7.6, is to be delivered not later than nine (9) months
after the Closing, except for the Remy Amerique Commission Funds (as defined
herein), which, subject to the terms and conditions set forth herein, is to be
paid to Seller, not later than December 31, 2000 (together with all interest as
provided below). The Representations and Warranties Holdback shall be held by
Warranties Holdback Escrowee to secure the payment of the Surviving Warranties
(as hereinafter defined). "Surviving Warranties" means (i) any breach of the
representations, warranties, covenants and indemnities of Seller contained in
Section 7 (provided, however, in no event shall any claim be asserted under this
Paragraph 7.6 with respect to any physical matter or physical condition of or
relating to the Premises), Section 14.1, Section 14.2(a), Section 15 and
Exhibits "Q" and "R" annexed hereto and made a part hereof which expressly
survive the Closing, (ii) the payment by Seller of one half (1/2) of that
certain brokerage commission (the "Remy Amerique Commission"), which is payable
to Braun Associates LLC (the "Broker") in connection with that certain First
Amendment to Lease (the "Remy Amerique Expansion Agreement"), dated as of
September 1999, between Seller, as Landlord and Remy Cointreau Amerique, Inc.,
as tenant (the "Remy Amerique Tenant"), such one-half (1/2) commission being in
the amount of Nine Thousand Two Hundred Twenty Six Dollars and 72/00 ($9,226.72)
(the "Remy Amerique Commission Funds"), but only if, as and when such Remy
Amerique Commission becomes payable to Broker by reason of the failure by the
Remy Amerique Tenant to exercise, on or before November 30, 2000 (the "Remy
Payment Date"), (ii) the Remy Amerique Tenant's right to cancel its lease at the
Building as set forth in such lease as of the date of this Agreement (the "Remy
Cancellation Right"), and (iii) any adjustments due to Purchaser after Closing
pursuant to Section 13 hereof (all of the items described in clauses (i) through
(iii) are collectively, the "Surviving Warranties"), and which Surviving
Warranties result in an aggregate amount of damages or other amounts payable to
Purchaser in excess of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) (the
"Warranties Holdback Deductible"), provided, however, that the payment of the
Remy Amerique Commission in accordance with the further terms and conditions of
this Section 7.6 shall not be subject to the Warranties Holdback Deductible. As
used in this Section 7.6, the term Warranties Holdback Escrowee shall mean and
refer to Fried, Frank, Harris, Shriver & Jacobson.
(b) Warranties Holdback Escrowee shall hold the Representations and
Warranties Holdback funds (the "Warranties Holdback Funds") in escrow in any
"Permitted Investment" (as hereinafter defined) designated by Seller in writing
from time to time, or, if Seller does not designate a Permitted Investment, in
an interest-bearing account in a New York Clearing House Bank or in some other
Permitted Investment agreed to in writing by the Seller and Purchaser and
acceptable to Warranties Holdback Escrowee (the "Warranties Holdback Account")
until the Warranties Holdback Termination Date (as hereinafter defined), and
shall pay over or apply the Warranties Holdback Funds in accordance with the
further provisions of this Section 7.6; provided, however, that Purchaser agrees
that any and all interest earned on the Warranties Holdback Funds shall be paid
to the Seller at the Warranties Holdback Termination Date and that Purchaser
shall not be entitled to make any claim for or against such interest in
connection with a breach by Seller of any of the Surviving Warranties or
otherwise. If Seller receives such interest, Seller shall pay all income taxes
owed in connection therewith. The employer identification number of Seller set
forth on the signature page hereof. Warranties Holdback Escrowee shall not be
liable to Purchaser or Seller for any loss occasioned by any deposit of the
Warranties Holdback Funds made in accordance with this Section 7.6(b). The term
"Permitted Investment" shall mean any of the following: (i) Institutional
Service Shares of Federated New York Municipal Cash Trust or other New York
triple tax-free money market funds of comparable quality, (ii) short-term New
York triple tax-free investments rated not less than A-1 by Standard & Poor's
Ratings Services or P-1 by Moody's Investors Service, Inc., or (iii) short-term
United States Treasury Bills or other obligations of or guaranteed by the United
States government.
(c) Subject to, and following in compliance with, the provisions of
Section 7.6(d) hereof, Warranties Holdback Escrowee shall deliver to Purchaser
the Warranties Holdback Funds (excluding interest thereon) only to the extent
that the amount of damages or other amounts due to Purchaser as provided
hereunder and as set forth in all Purchaser's Warranties Demands (as hereinafter
defined) exceed the Warranties Holdback Deductible, at the expiration of ten
(10) business days following Warranties Holdback Escrowee's receipt of
Purchaser's written demand ("Purchaser's Warranties Demand") therefor from
Purchaser or Purchaser's attorneys stating in reasonable detail that Seller has
breached any of the Surviving Warranties and/or otherwise owes money to
Purchaser in connection with the Remy Amerique Commission (and, in the case of
the Remy Amerique Tenant, stating that the Remy Amerique, Tenant has not timely
exercised the Remy Cancellation Right) and/or pursuant to the Surviving
Warranties after the Closing, in accordance with Section 13 hereof (but neither
the inclusion of, or reference to, nor any payment in connection with Section 13
hereof, shall extend the Warranties Holdback Termination Date), and specifying
the amount Purchaser is entitled to as a result thereof in reasonable detail,
and Warranties Holdback Escrowee shall deliver all accrued interest with respect
to the funds, so disbursed to Seller. Simultaneously with Purchaser's delivery
of Purchaser's Warranties Demand to Warranties Holdback Escrowee, Purchaser
shall deliver a copy of Purchaser's Warranties Demand to Seller.
(d) Subject to the provisions of Section 7.6(f) and Section 7.6(g)
hereof, if Warranties Holdback Escrowee receives Purchaser's Warranties Demand
pursuant to and in accordance with Section 7.6(c) hereof, then, in such event,
prior to releasing any Warranties Holdback Funds, Warranties Holdback Escrowee
shall deliver a copy of Purchaser's Warranties Demand to the Seller within five
(5) business days after receipt thereof by Warranties Holdback Escrowee. If
Warranties Holdback Escrowee shall not have received a written objection by
Seller or Seller's attorneys to the proposed payment by the close of business on
the tenth (10th) business day following the date of Purchaser's Warranties
Demand, then, in such event, Warranties Holdback Escrowee is hereby authorized
and directed to make the payment set forth in such Purchaser's Warranties Demand
in excess of the Holdback Deductible on or after the eleventh (11th) business
day following the date of such Purchaser's Warranties Demand. If Warranties
Holdback Escrowee shall have received a written objection from either party or
their attorneys before such payment, then, in such event, Warranties Holdback
Escrowee shall continue to hold the Warranties Holdback Funds until otherwise
directed by written instructions from both of the parties hereto or by a final
unappealable judgment of a court of competent jurisdiction; provided, however,
that Warranties Holdback Escrowee shall have the right, at any time, to deposit
the Warranties Holdback Funds with any court of competent jurisdiction and
thereby be relieved and discharged of any further obligations or liability under
this Agreement. Warranties Holdback Escrowee shall give written notice of any
such deposit to Seller and Purchaser. Warranties Holdback Escrowee shall be
entitled to rely upon the authenticity of any signature and/or the validity of
any writing received by Warranties Holdback Escrowee pursuant to, or otherwise
relating to, this Agreement. Any writing signed by any two (2) of the "parties
of the first part" of Seller, on behalf of Seller, shall be sufficient to bind
Seller, and Escrowee shall be entitled to rely thereon. The "parties of the
first part" of Seller are Marjorie Minskoff Schleifer (whose official successor
as such party of the first part is Jean Minskoff Grant), Myron A. Minskoff
(whose official successor as such party of the first part is Sara Minskoff
Allan), and the Estate of Jerome Minskoff (whose co-executors are Patricia
Minskoff and United States Trust Company of New York).
(e) The parties acknowledge and agree that (i) Warranties Holdback
Escrowee, in its capacity as the holder of the Warranties Holdback Funds
hereunder, is acting solely as a stakeholder at the parties' request and for
their convenience; (ii) although Warranties Holdback Escrowee, in its capacity
as attorney, acts as the attorney for Purchaser in connection with the
transactions contemplated herein, Warranties Holdback Escrowee shall not be
deemed to be the agent of either of the parties hereto as holder of the
Warranties Holdback Funds, (iii) any conflict of interest that may exist because
of Escrowee's representation of Purchaser hereunder as attorney is hereby
waived; (iv) Warranties Holdback Escrowee shall not be liable to either of the
parties hereto or to any third-party for any act or omission on its part as
Warranties Holdback Escrowee unless due to Warranties Holdback Escrowee's gross
negligence or willful misconduct and (v) Warranties Holdback Escrowee or any of
its members or employees shall be permitted to act as counsel for Purchaser in
any dispute or question as to the disbursement of the Warranties Holdback Funds
or any other matter arising under this Agreement. Seller and Purchaser, jointly
and severally, shall indemnify, defend and hold harmless Warranties Holdback
Escrowee from and against any and all losses, liabilities, costs, claims,
damages or expenses (including, without limitation, reasonable attorneys' fees
and costs) which may be incurred or suffered by Warranties Holdback Escrowee in
connection with the performance of Warranties Holdback Escrowee's duties
hereunder, excepting Warranties Holdback Escrowee's gross negligence or willful
misconduct. As between Seller and Purchaser, the party responsible for the acts
or omissions giving rise to the foregoing indemnity obligation, shall be liable
to the other party for contribution or reimbursement.
(f) At such time (at or subsequent to the Closing) as Seller has
delivered to Purchaser (with copies to Warranties Holdback Escrowee)
Satisfactory Tenant Estoppels (as hereinafter defined) from tenants occupying at
least 80% of the net leasable space under lease at the Premises as of the date
hereof (excluding the space leased by Chase, Suite 1802 and the space leased
pursuant to the Minskoff Lease but including Hearst, MGM and MTA), Seller shall
be entitled to the immediate release and the Warranties Holdback Escrowee shall
pay to Seller, to the extent then held in escrow, the sum of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) from the Warranties Holdback Funds (together with
interest thereon) less the amount by which all Warranties Demands previously
made by Purchaser (if any) exceed $250,000.00 (e.g., if Purchaser had made
several Warranties Demands the aggregate value of which is $500,000.00, only
$250,000 would be released to Seller). For purpose of clarification, Seller's
Estoppels do not count in computing the 80% threshold.
(g) Except to the extent a Purchaser's Warranties Demand was delivered
in accordance with the terms hereof, and has not been resolved by the mutual
agreement in writing by Seller and Purchaser, and except for the Remy Amerique
Commission Funds (in the amount of Nine Thousand Two Hundred Twenty Six Dollars
and 72/00 ($9,226.72) which shall continue to be held by Warranties Holdback
Escrow Agent to secure payment of the Remy Amerique Commission until December
31, 2000 (the "Remy Amerique Termination Date"), at the expiration of nine (9)
months from the Closing ("Warranties Holdback Termination Date"), Warranties
Holdback Escrow Agent shall deliver all remaining Warranties Holdback Funds
[excluding the Remy Amerique Commission Funds, unless such funds have previously
been released in accordance with the terms hereof] (with all earned interest
thereon not previously disbursed to Seller) to Seller, less the amount by which
all Warranties Demands exceed $250,000.00. If at any time that the Remy Amerique
Funds would otherwise be payable to Purchaser, there shall not be sufficient
funds therefor in the Warranties Holdback Funds, Seller shall promptly pay the
same to Purchaser upon Purchaser's delivery of its demand and all other required
evidence as provided in subparagraph (c) above. Anything contained in this
Agreement to the contrary notwithstanding, Purchaser shall have no obligation to
pay to Seller the amount of any Warranties Holdback Funds that have been
disbursed to Purchaser in accordance with this Section 7.6 in respect of
Warranties Demands.
(h) Purchaser agrees that to the extent Warranties Holdback Funds,
together with any earned interest thereon, are released (the "Released Funds")
to Seller in accordance with Section 7.6(f) or Section 7.6(g), Purchaser shall
not be entitled to make any claim for or against any of the Released Funds in
the possession of Seller or any Seller's Principal (as hereinafter defined) in
connection with a breach by Seller of any of the Surviving Warranties or
otherwise.
(i) Anything contained in this Section 7.6 to the contrary
notwithstanding, if (A) on or before the Warranties Holdback Termination Date,
the Remy Amerique Tenant shall exercise the Remy Cancellation Right, then the
Remy Amerique Funds shall continue to be held by the Warranties Holdback
Escrowee as part of the Warranties Holdback Funds as if all references in this
Section 7.6 to the Remy Amerique Commission were omitted herefrom, (B) after the
Warranties Holdback Termination Date and on or before the Remy Payment Date, the
Remy Amerique Tenant shall exercise the Remy Cancellation Right, then the Remy
Amerique Funds shall be released to Seller (and Purchaser shall have no right to
object to such release to Seller), and (C) as of the Remy Payment Date, the Remy
Amerique Tenant shall have failed to exercise the Remy Cancellation Right, then
the Remy Amerique Funds shall be released to Purchaser (and Seller shall have no
right to object to such release to Purchaser).
(j) The provisions of this Section 7.6 shall survive the Closing.
7.7. Chase Holdback.
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(a) At the Closing, Purchaser shall deliver from the proceeds of the
Purchase Price payable to Seller the sum of (i) the rent payable by The Chase
Manhattan Bank ("Chase") pursuant to that certain lease dated as of July 29,
1965 between Seller, as landlord, and Chase, as tenant (as same has been amended
from time to time, the "Chase Lease"), from the first day of the month following
the month in which the Closing occurs through July 31, 2000 as shown on Schedule
1 attached hereto and made a part hereof (each monthly installment shown on
Schedule 1 being referred to as "Chase Monthly Rent"), plus the amount of (ii)
THREE HUNDRED THOUSAND DOLLARS ($300,000.00) (collectively, the "Chase
Holdback") to Chase Holdback Escrowee by wire transfer in immediately available
funds to Citibank, 120 Broadway, New York, NY, 10043, ABA #021000089, Attention:
Rose DiGiorgio, Private Banking Division, For the Account of Fried, Frank,
Harris, Shriver & Jacobson, Account Number: 37029464, Reference: Reckson Chase
Holdback. The term Chase Holdback Escrowee in this Section 7.7 shall mean Fried,
Frank, Harris, Shriver & Jacobson.
(b) At the Closing, separate and apart from the Chase Holdback,
Purchaser shall receive a credit against the Purchase Price equal to the
prorated portion of the Chase Monthly Rent for the period from and after the
Closing through the end of the month in which the Closing occurs. On the first
day of each month after the Closing, Chase Holdback Escrowee shall pay to
Purchaser from the Chase Holdback an amount equal to the Chase Monthly Rent for
such month, with the final sum of $300,000.00 (together with all interest or
other investment income earned on the Chase Holdback) payable to Purchaser on
July 31, 2000. Disbursement of the Chase Holdback funds (the "Chase Funds")
shall otherwise be automatic and unconditional. Seller hereby waives any right
to object to any such disbursement and the Chase Holdback Escrowee is hereby
authorized to disregard any objection of Seller with respect to the disbursement
of the Chase Funds. All payments by Chase Holdback Escrowee shall be accompanied
by Chase Holdback Escrowee's written notice thereof to both parties.
(c) Chase Holdback Escrowee shall hold the Chase Funds in escrow for
investment in any Permitted Investment designated by Purchaser in writing from
time to time, or, if Purchaser has not designated a Permitted Investment, in an
interest-bearing account in a New York Clearing House Bank or in some other
investment acceptable to Chase Holdback Escrowee and Purchaser ("Chase Holdback
Account"), and shall pay over or apply the Chase Funds in accordance with the
provisions of this Section 7.7. The Purchaser shall pay all income taxes owed in
connection with all interest. The employer identification numbers of Seller and
Purchaser are set forth on the signature page hereof. Chase Holdback Escrowee
shall not be liable to Purchaser or Seller for any loss occasioned by any
deposit of the Chase Funds made in accordance with this Section 7.7(c).
(d) The parties acknowledge and agree that (i) Chase Holdback
Escrowee, in its capacity as holder of the Chase Funds hereunder, is acting
solely as a stakeholder at the parties' request and for their convenience; and
(ii) although Chase Holdback Escrowee, in its capacity as attorney, acts as the
attorney for Purchaser in connection with the transactions contemplated herein,
Chase Holdback Escrowee shall not be deemed to be the agent of either of the
parties hereto as holder of the Chase Funds, (iii) any conflict of interest that
may exist because of Escrowee's representation of Purchaser hereunder as
attorney is hereby waived (iv) Chase Holdback Escrowee shall not be liable to
either of the parties hereto or to any third-party for any act or omission on
its part as Chase Holdback Escrowee unless due to Chase Holdback Escrowee's
gross negligence or willful misconduct; and (v) Chase Holdback Escrowee or any
of its members or employees shall be permitted to act as counsel for Purchaser
in any dispute or question as to the disbursement of the Chase Holdback Funds or
any other matter arising under this Agreement. Seller and Purchaser, jointly and
severally, shall indemnify, defend and hold harmless Chase Holdback Escrowee
from and against any and all losses, liabilities, costs, claims, damages or
expenses (including, without limitation, reasonable attorneys' fees and costs)
which may be incurred or suffered by Chase Holdback Escrowee in connection with
the performance of Chase Holdback Escrowee's duties hereunder, excepting Chase
Holdback Escrowee's gross negligence or willful misconduct. As between Seller
and Purchaser, the party responsible for the acts or omissions giving rise to
the foregoing indemnity obligation, shall be liable to the other party for
contribution or reimbursement.
(e) Except for the proration of monthly rent for the month of the
Closing as provided in Section 7.7(b), there shall be no adjustment between
Seller and Purchaser for arrearages or any other matters with respect to the
Chase Lease. Except as hereinafter expressly set forth, Seller shall, at all
times prior to and after the Closing, have the sole management and control of
all aspects of the pending Chase litigation (Index No. 112750199, Supreme Court
of the State of New York, County of New York, and related proceedings),
including all arbitration proceedings and settlement negotiations, and all
appeals (collectively, "Chase Litigation"), and Purchaser shall cooperate with
Seller in connection therewith and, at Seller's request, shall participate in
Seller's settlement negotiations. From and after the Closing, Purchaser hereby
irrevocably designates and authorizes Seller, its successor and assigns and its
and their attorneys to continue, conduct and settle the Chase Litigation in
Seller's name, and/or Purchaser's name, place and stead (as the then owner of
the Premises and the successor to Landlord under the Chase Lease), as Seller
shall determine, and Purchaser irrevocably assigns and sets over to Seller, its
successors and assigns all right, title and interest in any and all rights,
remedies, privileges, rents (including all fixed, minimum, additional, operating
and tax escalation, and "pass-through" rent), issues, profits, security
deposits, proceeds, claims, actions, proceedings, awards, settlements and
recoveries whatsoever under or arising out of the Chase Lease and/or Chase
Litigation, with full power and authority to execute, acknowledge and deliver
any and all settlement agreements, stipulations, dismissals, releases, lease
terminations and surrenders and all other instruments and documents in
connection with the Chase Lease and Chase Litigation as Seller shall elect in
its sole and absolute discretion, and Purchaser shall join in any of the same at
Seller's request (so long as Purchaser shall incur no liability thereunder);
provided, however, any settlement or agreement with Chase which does not require
termination by Chase of occupancy of the entire premises under the Chase Lease
on or before July 31, 2000 shall require Purchaser's prior written consent.
Seller shall be responsible for all costs, fees and expenses of the Chase
Litigation, including any adverse judgments, except with respect to any acts or
omissions of Purchaser, its agents and representatives, and its and their
successors and assigns, from and after the Closing.
(f) The provisions of this Section 7.7 shall survive the Closing.
SECTION 8. INSPECTION OF THE PREMISES.
--------------------------
8.1. At all times prior to the Closing Date (unless this Agreement is
terminated prior to such date), upon reasonable notice to Seller or its
representatives (including without limitation, Cushman & Wakefield, Inc.
("C&W")), Purchaser and such agents and representatives of Purchaser
("Authorized Representatives") as shall have been identified to Seller, shall
have the right, subject to the rights of tenants and other occupants at the
Premises (including, without limitation, subject to and in accordance with the
terms of the Leases), to enter upon the Premises to inspect and examine the
same, subject to the further provisions hereof; provided, however, that (a)
Purchaser shall take all measures to minimize any interference or inconvenience
with Seller's or any tenant's or occupant's use or operation of the Premises,
including conducting inspections and tests after normal business hours; (b) all
inspections shall be accomplished in an expeditious, safe and businesslike
manner in accordance with all applicable law; (c) Seller, any tenant and/or
their representatives or employees may, at Seller's option, accompany Purchaser
or any Authorized Representatives; (d) Purchaser shall not alter or destroy the
Premises in any manner whatsoever; (e) Purchaser shall promptly deliver to
Seller copies of all data, information, tests, studies and reports generated by
or for Purchaser relating to the results of such inspections if this Agreement
is terminated; and (f) subject to Seller's prior written consent, as a further
condition precedent to making any physically intrusive inspection or examination
of the Premises or to bringing any equipment or materials on the Premises,
Purchaser and all contractors engaged by Purchaser shall obtain and maintain at
all times at their sole cost and expense (i) liability insurance in the amount
of $2,000,000 for property damage coverage and in the amount of $5,000,000 for
personal and bodily injury coverage, which insurance shall name Seller (and, at
its option, its constituent joint venturers or partners) as additional insured
parties, and (ii) with respect to any Authorized Representatives (and all of
their employees and agents), workers' compensation and disability insurance, as
required by law. Purchaser and the Authorized Representatives shall have the
right from time to time, upon reasonable notice, to examine the books, records,
accounts and other material information with respect to the Premises only.
Purchaser shall provide to Seller certificates of insurance evidencing such
coverage prior to entering upon the Premises as aforesaid for the purpose of
making any such physically intrusive investigation, such certificates to provide
that the insurance evidenced thereby may not be changed or canceled except upon
thirty (30) days' written notice to Seller. It is understood and agreed that
except as set forth in Section 4.1 hereof, Purchaser's satisfaction with such
inspection shall not constitute or be deemed to constitute a condition to
Purchaser's obligations hereunder.
Without limiting the foregoing, the following shall apply to any
communications with tenants, property managers or employees of or at the
Premises:
(A) From and after the date hereof, Purchaser shall be entitled
to communicate questions or requests for information to and from (I) "New York
Life" or (II) tenants of the Premises, and the Premises' managers and employees,
as reasonably required by Purchaser, in any case only upon prior notice to
Seller and in the presence of one or more representatives of Seller (as Seller
shall determine from time to time, which may be C&W), provided that Seller or
its representative(s) is available to be present within (two) 2 business days of
any such request, unless Seller has waived the right to be present in writing in
a specific case. Notwithstanding any provisions contained herein to the
contrary, Purchaser covenants and agrees that it will not enter into a deal with
New York Life with respect to a new loan secured by the Premises or to assume,
refinance, amend, recast, add to, or otherwise modify Seller's existing loan or
mortgage secured by the Premises with or from New York Life nor will it obtain
any such loan or submit or sign a proposal, a term sheet or commitment on or
before the Closing Date and for a period of sixty (60) days after the Closing
Date. The provisions of the immediately preceding sentence shall survive the
Closing.
(B) Purchaser shall indemnify Seller and its Representatives from
and against all Losses (as hereinafter defined) in connection with or arising
out of any breach or violation of any of the provisions of subdivision (A)
above, specifically excluding consequential damages.
8.2. (a) Any work performed by Purchaser or its Authorized Representatives
in connection with any inspection of the Premises shall be at Purchaser's sole
cost and expense. Purchaser covenants and agrees to pay in full all persons who
perform labor upon the Premises, and not to permit or suffer any mechanic's or
materialman's lien of any kind or nature to be asserted or enforced against the
Premises for any work done or materials furnished thereon at the instance or
request or on behalf of Purchaser.
(b) Purchaser shall indemnify, defend and hold harmless Seller and its
Representatives (collectively, to "Indemnify") from and against any and all
losses, costs, liabilities, claims, damages or expenses (including, without
limitation, reasonable attorney's fees and costs) [collectively, "Losses"]
arising out of or as a result of any inspection of, or access to, the Premises
and work in connection therewith by Purchaser or its Authorized Representatives
(and any agents, employees, independent contractors and representatives
thereof). Purchaser, at its sole cost and expense, shall promptly restore the
Premises to its condition immediately prior to the performance of such
investigation by Purchaser pursuant to this Section 8 and shall repair any and
all damage caused by Purchaser or its Authorized Representatives and their
employees, representatives, agents or independent contractors. Purchaser
acknowledges and agrees that Seller shall have the right to use the Escrow Funds
to restore the Premises if Purchaser shall fail to comply with this Section 8.2
within seven (7) business days after notice from Seller of such damage.
8.3. All indemnities of Purchaser in this Section 8 shall survive the
Closing or any termination of this Agreement.
SECTION 9. VIOLATIONS AFFECTING THE PREMISES.
---------------------------------
Purchaser shall accept title to the Premises subject to all violations of
law or governmental ordinances, orders or requirements by any governmental
department, agency or bureau having jurisdiction as to conditions affecting the
Premises ("Violations"), and Seller shall have no obligation to remove or cure
any such Violation; provided, however, that to the extent any Violations remain
uncured as of the Closing, Purchaser shall receive a credit at Closing for the
reasonable cost of curing said Violations, not to exceed under any circumstances
the aggregate amount of $300,000.00; provided, however, that if the cost of
curing said violations is reasonably anticipated to exceed the aggregate amount
of $300,000.00, Purchaser shall be entitled to exercise the Termination Option
at or prior to the Closing.
SECTION 10. DESTRUCTION, DAMAGE OR CONDEMNATION AFFECTING THE PREMISES.
----------------------------------------------------------
10.1. (a) Seller and Purchaser waive the provisions of all applicable laws
(including General Obligations Law Section 5-1311) relating to the occurrence of
a casualty between the date hereof and the Closing, and Seller and Purchaser
agree that the following provisions with respect thereto shall govern. Seller
agrees to notify Purchaser promptly if the Premises shall be destroyed or
damaged in whole or in part by fire or other casualty prior to the Closing.
(b) If the Premises or any portion thereof shall be damaged by fire or
other casualty between the date of this Agreement and the Closing and (I) the
cost of restoring and repairing the portion of the Premises so damaged to
substantially its present condition (the "Restoration Cost") is less than Six
Million ($6,000,000) Dollars as reasonably estimated by an architect or engineer
selected by Seller and reasonably satisfactory to Purchaser and (II) such
casualty will not result in tenants occupying an aggregate of more than 50,000
square feet to be entitled to cancel their Leases, then Purchaser shall have no
right to terminate this Agreement and shall purchase the Premises in its damaged
condition and assume full responsibility for repair thereto, without reduction
of the Purchase Price or any other claim or offset. Seller shall (i) credit to
Purchaser against the Purchase Price the amount of any remaining insurance
proceeds theretofore received by Seller in connection with any such destruction
by fire or other casualty (except that all business interruption insurance
theretofore paid and received, if any, and applicable to periods prior to
Closing shall be retained by Seller), less Seller's reasonable out-of-pocket
costs incurred in connection with its attempts to seek collection of any such
insurance proceeds, and (ii) assign to Purchaser by written assignment in form
and substance reasonably satisfactory to Seller and Purchaser, at the Closing,
all of Seller's right, title and interest in and to any insurance proceeds
thereafter payable in connection with any such destruction by fire or casualty
(except that business interruption insurance thereafter paid and received, if
any, shall be apportioned as of the Closing Date, with that portion of the
proceeds of such insurance attributable to the period prior to the Closing Date
to be retained by or paid to Seller); provided, further, the amount of any
credit under clause (ii) above shall not exceed the excess of the Restoration
Cost for all restoration work remaining to be performed over the amount of
insurance proceeds assigned. Purchaser shall receive credit for any insurance
deductible. The Closing shall be adjourned until the Restoration Cost has been
determined, unless Seller has given Purchaser notice that the Restoration Cost
is reasonably expected to exceed $6,000,000.00 (in which event Purchaser shall
proceed as provided in subparagraph (c) below).
(c) Subject to the provisions of Section 10.1(d), if the Premises or
any portion thereof shall be damaged by fire or other casualty between the date
of this Agreement and the Closing and (I) the Restoration Cost is more than Six
Million ($6,000,000) Dollars as reasonably estimated by an architect or engineer
selected by Seller and reasonably satisfactory to Purchaser or (II) one or more
tenants occupying an aggregate of more than 50,000 square feet shall be entitled
to terminate their Leases, then Purchaser shall have the option, to be exercised
within fifteen (15) days from the date of delivery of a written estimate of the
Restoration Cost, to terminate this Agreement by written notice to the other
party (a "Casualty Termination Notice") [in case of such termination by
Purchaser, the same shall constitute an exercise of Purchaser's Termination
Option]. If Purchaser terminates, neither party hereto shall have any further
duties, obligations or liabilities to the other hereunder, except that Purchaser
shall be entitled to the return of the Escrow Funds, and except for those
obligations specifically provided for in this Agreement to survive the
termination of this Agreement. If Purchaser shall not elect to terminate this
Agreement as provided above, then this Agreement shall remain in full force and
effect and the provisions of Section 10.1(b) shall apply to such damage and
restoration and any insurance proceeds payable in connection therewith.
(d) If a determination of the Restoration Cost by the architect or
engineer required to in Sections 10.1(b) and (c) above shall not have been
delivered to Purchaser within sixty (60) days following the date of casualty,
Purchaser shall be entitled to exercise the Termination Option.
10.2. (a) Seller and Purchaser hereby waive the provisions of all
applicable laws (including General Obligations Law Section 5-1311) relating to
the occurrence of a condemnation between the date hereof and the Closing, and
Seller and Purchaser agree that the following provisions with respect thereto
shall govern. Seller agrees to notify Purchaser promptly if the Premises shall
be taken in whole or in part by right of eminent domain or condemnation prior to
the Closing (a "Taking").
(b) If the Taking will so affect the Premises as to (i) allow one or
more tenants occupying an aggregate of more than 50,000 square feet to cancel
their Leases, (ii) cause the Premises to not comply with applicable laws, codes
and regulations concerning zoning and land use, (iii) prevent the use of the
Premises for its current purposes, or (iv) cause damages in excess of Six
Million ($6,000,000) Dollars as reasonably estimated by an architect or engineer
selected by Seller and reasonably satisfactory to Purchaser, then Purchaser
shall have the right to terminate this Agreement and to exercise its Termination
Option by giving written notice to Seller within fifteen (15) days of the date
Seller sends written notice to Purchaser of the Taking. If Purchaser does not so
terminate this Agreement, or shall have no right to terminate this Agreement,
then (x) this Agreement shall remain in full force and effect notwithstanding
such Taking, (y) Purchaser shall purchase the Premises in its then condition
without reduction of the Purchase Price or any adjustment or other claim or
offset and (z) Seller shall assign to Purchaser the right to receive any
condemnation award payable to Seller as a result of the Taking, net of (A) any
reasonable, actual costs of litigating or negotiating the amount of, or
collecting, the award and (B) any sums expended by Seller to restore or protect
the Premises as a result of the Taking.
10.3. Notwithstanding anything set forth herein to the contrary, Purchaser
shall have no right to terminate this Agreement, receive any credit against the
Purchase Price or other adjustment or receive any insurance proceeds payable to
Seller by reason of any damage or destruction to the Premises that occurs as a
result of any act, omission or negligence of Purchaser or any of its employees,
contractors or agents.
10.4. Seller shall have complete control of all condemnation proceedings;
provided however, that if Purchaser disagrees with Seller's conduct thereof, it
may give Seller thirty (30) days' notice of the reasons for such disagreement
and exercising as Termination Option within 30-days thereafter unless Seller
agrees with Purchaser's position within said 30-day period.
SECTION 11. SELLER'S CLOSING OBLIGATIONS.
----------------------------
At the Closing, Seller shall execute and (where the document so provides)
acknowledge and deliver the following items to Purchaser (with respect to any
and all documents requiring execution by Seller, at or prior to Closing, the
signatures of any two (2) "parties of the first part" of Seller shall be
sufficient, but only if the opinion delivered pursuant to Section 11(m) below so
provides or Purchaser is otherwise satisfied as to due execution):
(a) A Bargain and Sale deed (the "Deed"), properly executed and
acknowledged in the form annexed hereto and made a part hereof as Exhibit "O";
(b) A bill of sale with respect to the personal property in the form
annexed hereto and made a part hereof as Exhibit "P";
(c) An assignment and assumption agreement with respect to the Leases
in the form annexed hereto and made a part hereof as Exhibit "Q" (the "Lease
Assignment and Assumption");
(d) A general assignment and assumption agreement in the form annexed
hereto and made a part hereof as Exhibit "R" (the "General Assignment and
Assumption");
(e) A schedule, certified to the knowledge of Seller to be true,
correct and complete, setting forth all tenant arrearages and accrued but unpaid
minimum and additional rents, expense escalations, tax and other adjustments and
charges under the Leases attributable to the period prior to the Closing Date
(the "Arrearages and Unpaid Escalations Statement");
(f) The Curtain Wall Agreement and Sidewalk Bridge Agreement, and [if
such parties have so consented and delivered same to Seller,] consents by the
other parties to such agreements to the assignment thereof (but such consents
not being a condition to the Closing), and originals (or copies if originals are
not available) of any other Service Contracts;
(g) Keys to all building entrance doors to, and all equipment and
utility rooms located in, the Premises, which keys shall be properly tagged for
identification;
(h) A schedule, certified to the knowledge of Seller to be true,
correct and complete, of all cash, letters of credit and other items of value
required as security under the Leases at the time of Closing ("Security
Deposits"). All Security Deposits shall be adjusted as provided in Section
13.4(e);
(i) One original letter, in the form of Exhibit "S" annexed hereto and
made a part hereof, executed by Seller, advising tenants at the Premises that
the Premises have been sold to Purchaser and directing that all future rents and
other correspondence should thereafter be sent to Purchaser or as Purchaser may
direct;
(j) A non-foreign status affidavit in the form annexed hereto and made
a part hereof as Exhibit "T";
(k) Promptly after the execution and delivery of this Agreement,
Seller shall request that each of the tenants at the Premises execute and
deliver a tenant estoppel letter (a "Tenant Estoppel") in the form of Exhibit
"U" annexed hereto and made a part hereof (except that the Tenant Estoppel for
the tenant under the MTA Lease shall be in the form of Exhibit "U-1" annexed
hereto and made a part hereof); provided, however, that if Seller has made such
a request, Seller may satisfy its obligations hereunder by the delivery of a
tenant estoppel letter (a "Minimum Tenant Estoppel") containing at a minimum the
information which is expressly required to be provided by a tenant pursuant to
the specific terms of each tenant's respective Lease (excluding any information
which is not contained in the Tenant Estoppel, and excluding any other
information which may be requested pursuant to any Lease provision which
provides for "information which may reasonably be requested," or words to
similar effect). Seller shall use reasonable efforts to obtain the Tenant
Estoppels but shall have no obligation to bring any action or proceeding or to
incur any costs or expenses, other than DE MINIMIS amounts, in connection
therewith. Notwithstanding the foregoing to the contrary, Seller's delivery of
Tenant Estoppels or Minimum Tenant Estoppels which contain information which is
consistent in all material respects with the warranties and representations made
by Seller herein (collectively, "Satisfactory Tenant Estoppels"), for all
primary tenants occupying space in the Premises (i.e., specifically excluding
subtenants or other occupants other than the primary tenant under any Lease, and
also excluding Chase Manhattan Bank, the tenants or occupants of Suite 1802 and
Suite 2305) [collectively, "Excluded Tenants"] shall be a condition to
Purchaser's obligation to close hereunder; provided, however, if Seller delivers
Satisfactory Tenant Estoppels to Purchaser from (i) tenants occupying 65% or
more of the net leasable square footage in the Premises under lease as of the
date hereof (excluding all Excluded Tenants), which 65% shall include (ii) a
Satisfactory Tenant Estoppel from each of the tenants under the Hearst, MGM and
MTA Leases, then Seller may, in its sole discretion, deliver its own estoppel
letter to Purchaser (collectively, the "Seller's Estoppels") for the remaining
tenants (other than the foregoing 65%) of the Premises containing the
information otherwise required in the respective Minimum Tenant Estoppel,
provided such information is consistent in all material respects with Seller's
representations and warranties made herein and such Seller's Estoppels shall
satisfy Seller's obligations hereunder to deliver estoppels for primary tenants
occupying space in the Premises and such condition to the Closing. If any Tenant
Estoppel or Minimum Tenant Estoppel is not a Satisfactory Tenant Estoppel, or if
any Seller's Estoppel is inconsistent in any material respect with Seller's
representations and warranties made herein, Seller shall have the right (A) to
continue to try to obtain the same (subject to Seller's right to provide a
Seller's Estoppel), and/or (B) to cure or correct the same prior to the Closing,
and/or to pay to Purchaser at Closing an amount in cash satisfactory to
Purchaser to cure the same and/or to provide to Purchaser at Closing other
collateral reasonably satisfactory to Purchaser to cure the same (collectively,
"Cured Estoppels"), and if Seller obtains, corrects or cures the same or pays
such amount or provides such collateral, each of the Cured Estoppels which is a
Tenant Estoppel or a Minimum Tenant Estoppel shall be deemed Satisfactory Tenant
Estoppels and each Cured Estoppel which is a Seller's Estoppel shall be deemed
satisfactory hereunder in meeting Seller's obligation to deliver required
estoppels hereunder as aforesaid; provided, however, that the amount necessary
to correct or cure any estoppel as aforesaid shall not exceed $100,000 for any
one Cured Estoppel or $500,000 in the aggregate for all Cured Estoppels. Seller
shall have the right to adjourn the Closing Date for the purpose of obtaining
Satisfactory Tenant Estoppels, including Cured Estoppels, up to and including
November 22, 1999; provided further, however, if Seller has obtained
Satisfactory Tenant Estoppels (including Cured Estoppels) from tenants occupying
at least 50% of the net leasable square footage in the Premises under lease
(excluding Excluded Tenants, but including the Hearst, MGM and MTA tenants) by
November 22, 1999, the Seller may further adjourn the Closing Date up to and
including December 8, 1999. Purchaser agrees that Seller's failure to deliver
any Tenant Estoppel, any Minimum Tenant Estoppel, any Seller's Estoppel or any
Satisfactory Tenant Estoppel, or any Cured Estoppel, shall not constitute a
default under this Agreement, and that Purchaser's sole and exclusive remedy for
such failure shall be the Termination Option.
(l) A New York City Real Property Transfer Tax Return and New York
State Combined Real Estate Transfer Tax Return and Credit Line Mortgage
Certificate with payment in the form reasonably required by the title company
and/or the recording office;
(m) An opinion of Winick & Rich, P.C., as to the due execution and
authority of Seller with respect to the documents to be delivered by Seller at
the Closing, in substantially the form set forth in Schedule "2" annexed hereto
and made a part hereof (provided, however, that if there are any changes other
than the insertion or change in date(s) and/or reference(s) to documents or
events, all changes must be satisfactory to Purchaser in Purchaser's
discretion);
(n) Originals (or if originals are not available, copies certified by
Seller, to Seller's knowledge, to be true, correct and complete) of all Leases;
(o) Any items in the Title Letter and any other customary affidavits
and other items reasonably required by the Title Insurer, which does not require
Seller to assume any additional liability than is provided in this Agreement;
(p) Copy of notice of termination (conditional upon and effective at
the Closing) and Seller's certificate or other evidence that said notice has
been sent, of the leasing/management agreement with current managing agent and
any other exclusive agency or leasing agreement in existence on the date of the
Closing;
(q) A certificate dated as of the date of the Closing, stating that to
Seller's knowledge the representations and warranties of Seller in the form and
manner made herein, are true and correct in all material respects and with the
same limitations and qualifications, if any, made herein as if made as of the
date of the Closing, provided, however, that Seller may update any
representations or warranties that have changed between the date hereof and the
Closing, provided, however, that in such event, Purchaser may, in its sole
discretion, exercise the Termination Option if any changes have a material and
adverse effect on Purchaser or the Premises;
(r) A Closing Statement;
(s) Notice of termination of the Service Contracts (excluding the
"Excluded Service Contracts", as hereinafter defined) [conditional on and
effective at the Closing] and Seller's certificate or other evidence that the
notices have been sent;
(t) A rent roll certified to the knowledge of Seller to be true,
correct and complete;
(u) If the holder thereof has consented thereto and allowed same to
Seller, assignment of mortgage to Purchaser's designee (not a condition to the
Closing);
(v) Prior to the Closing, Seller shall deliver to the Building
management office, all tenant files, financial statements, building plans,
warranties, guaranties, reports, bills and any other items in Seller's control
or possession or in the Building manager's control or possession and reasonably
required to operate the Premises. Purchaser agrees to cooperate with Seller and
to allow Seller and its representatives to have continued reasonable access to
and the right to makes copies of the foregoing materials after the Closing. The
provisions of the immediately preceding sentence of this subparagraph (v) shall
survive the Closing;
(w) The License Agreement in the form annexed hereto as Exhibit "X".
(x) The Lease Clarification Agreement with Burberry's Wholesale
Limited containing the same substance as the form of Exhibit "ZZZ" annexed
hereto and made a part hereof and
(y) All other instruments and documents consistent with this Agreement
which may be reasonably and customarily required to effect the transaction
contemplated herein and within Seller's control, provided that such instruments
or documents may be delivered without additional cost or liability to Seller
(other than DE MINIMIS amounts).
SECTION 12. PURCHASER'S CLOSING OBLIGATIONS.
-------------------------------
12.1. At the Closing, Purchaser shall execute and (where the document so
provides) acknowledge and deliver the following items to Seller (or the
designated Holdback Escrowee, if specifically so provided herein below):
(a) The balance of the Purchase Price to be delivered at the Closing
(after application of the Downpayment), including any Additional Purchase Price,
as adjusted for apportionments under Section 13 and Section 14 hereof, and less
the amounts of the Representations and Warranties Holdback and the Chase
Holdback which shall be delivered by Purchaser to the Warranties Holdback
Escrowee and the Chase Holdback Escrowee as provided herein;
(b) The Lease Assignment and Assumption;
(c) The General Assignment and Assumption;
(d) A New York City Real Property Transfer Tax Return and New York
State Combined Real Estate Transfer Tax Return and Credit Line Mortgage
Certificate;
(e) The Hearst LOC;
(f) All other instruments and documents consistent with this Agreement
which may be reasonably and customarily required to effect the transaction
contemplated herein and within Purchaser's control, provided that such
instruments or documents may be delivered without additional cost or liability
to Purchaser (other than DE MINIMIS amounts);
(g) The Warranties Holdback Funds to Warranties Holdback Escrowee to
be paid to Seller, subject to the terms and conditions set forth in Section 7.6
hereof, on account of the balance of the Purchase Price not later than nine (9)
months after the Closing, except for the Remy Amerique Commission Funds which
subject to the terms and conditions set forth in Section 7.6 hereof shall be
paid to Seller not later than December 31, 2000;
(h) The Chase Funds to the Chase Holdback Escrowee; and
(i) The Mendik Commission Agreement. If the Mendik Commission
Agreement is not executed and delivered by Mendik, the condition shall be waived
and Purchaser shall be obligated, as between Seller and Purchaser, to pay the
amount of the commissions as provided for in the Mendik Commission Agreement
when due and payable and shall Indemnify Seller therefor. The provisions of this
subdivision (i) shall survive the Closing.
12.2. Notwithstanding anything to the contrary contained herein, the
obligation of Seller to close title in accordance with this Agreement is
expressly conditioned upon the fulfillment by and as of the time of Closing of
each of the conditions listed below, each of which may be waived in whole or in
part by Seller upon notice to Purchaser;
(a) Purchaser shall have executed and delivered to Seller all of the
documents, shall have paid all sums of money and shall have taken or caused to
be taken all of the other action required of Purchaser in this Agreement.
(b) All representations and warranties made by Purchaser in this
Agreement shall be true and correct in all material respects with same
limitations, if any, as contained herein as of the date of the Closing.
12.3. Notwithstanding anything to the contrary contained herein, the
obligation of Purchaser to close title and pay the Purchase Price in accordance
with this Agreement is expressly conditioned upon the fulfillment by and as of
the time of Closing of each of the conditions listed below, each of which may be
waived in whole or in part by Purchaser upon notice to Seller.
(a) Seller shall have executed and delivered to Purchaser all of the
documents, complied with all covenants and shall have taken or caused to be
taken all of the other action required of Seller under this Agreement.
(b) All representations and warranties made by Seller in the form and
manner made in this Agreement shall be true and correct in all material respects
and with the same limitations, if any, as contained herein, as if made on and as
of the Closing Date, provided, however, that for the purposes of this Section
12, Seller shall not be deemed in breach of any warranty or representation
herein (and Purchaser shall remain obligated to Close) unless such breach has a
material and adverse effect on Purchaser or the Premises.
(c) The Title Insurer shall be willing to insure title to the Premises
pursuant to an ALTA 1992 Owner's Policy of Title Insurance in the amount of the
Purchase Price at regular rates and without additional premium (which shall be
deemed to include the cost of any customary endorsements to title requested by
Purchaser), subject only to the Permitted Exceptions set forth on Exhibit "B".
(d) Purchaser shall have received Satisfactory Tenant Estoppels or, to
the extent permitted under the terms of Section 11.1(k) of this Agreement, Cured
Estoppels and/or Seller's Estoppels, with respect to every Lease (other than the
Excluded Tenants).
(e) None of Hearst, MGM or MTA shall be involved in any voluntary or
involuntary bankruptcy proceedings, and no monetary default in an amount in
excess of 60 days of rent under the respective Lease, shall exist under any of
the Leases with Hearst, MGM or MTA.
(f) Any letter of credit described on Exhibit F which has expired
shall have been renewed or replaced.
SECTION 13. APPORTIONMENTS AND ADJUSTMENTS; CLOSING COSTS.
---------------------------------------------
13.1. Except as otherwise specifically provided herein, Purchaser and
Seller shall adjust as of 11:59 p.m. of the day preceding the Closing the items
hereinafter set forth. If any such items are not determinable at the Closing,
the adjustment shall be made subsequent to the Closing when the amount is
determined. Any errors or omissions in computing adjustments at the Closing
shall be promptly corrected. The obligations set forth in this Section 13 shall
survive the Closing. Except as otherwise specifically provided for herein, all
adjustments shall be made in the manner recommended by the Customs in Respect to
Title Closings of the Real Estate Board of New York, Inc., and there shall be no
other adjustments. Subject to the further provisions of this Section 13 and
Section 14, the items to be adjusted are:
(a) Subject to Section 13.4, rents (as used in this Agreement "rents"
or "rental" includes all items of additional rent) under Leases which are
(x) collected prior to the Closing and (y) applicable to the month in which
the Closing occurs. At Closing, Seller shall credit against the Purchase
Price the amount of any rents which have been paid to Seller prior to
Closing by tenants which rents are attributable to any period from and
after the date of Closing. Reference is made to Section 13.4 below for
treatment of delinquent rents in the month of the Closing and of
post-Closing rental payments and receipts.
(b) Real estate taxes on the basis of the fiscal period for which
assessed. If the Closing shall occur before the tax rate is fixed, the
apportionment of taxes shall be upon the basis of the tax rate for the next
preceding fiscal period applied to the latest assessed valuation. Promptly
after the new tax rate is fixed, the apportionment of real estate taxes
shall be recomputed. If Seller has made an overpayment of real estate taxes
for New York City fiscal year 1998-99 or any earlier fiscal year and any
portion of the overpayment is credited towards payment of 1999-2000 (or
later) real estate taxes for the Land and Improvements rather than being
refunded to Seller, an appropriate adjustment shall be made at Closing (and
thereafter as otherwise provided herein) in favor of Seller for its right,
title and interest in such credit. Seller shall retain all rights to
contest, protest or seek tax reductions for all periods prior to and
including tax year 1998-1999, as provided in Section 19.14, and Purchaser
shall have full control to contest, protest or seek tax deductions for the
tax years after and including 1999-2000.
(c) Water rates, water meter charges, sewer rents, vault charges and
Business Improvement District Charges, if any, on the basis of the fiscal
period for which assessed. If there is a water meter or meters on the
Premises, the unfixed meter charges and the unfixed sewer rent thereon
shall be apportioned on the basis of the last reading, and shall be
appropriately readjusted after the Closing on the basis of the next
subsequent bills. As to any unpaid water charges or sewer rents payable by
tenants, Purchaser shall close title and accept the delivery of the deed
subject to such unpaid charges and rents and any lien resulting therefrom,
without abatement against the Purchase Price, credit or allowance of any
kind or any claim or right of action against Seller for damages or
otherwise.
(d) Fuel, if any, on the basis of Seller's last cost therefor,
including sales tax, as evidenced by a written statement of Seller's fuel
oil supplier dated within thirty (30) days of the Closing, which statement
shall be conclusive as to quantity and cost.
(e) Charges under all Service Contracts which have not been terminated
pursuant to Section 14.3 hereof.
(f) License and permit fees on assignable licenses and permits.
(g) Maintenance supplies in unopened containers based on Seller's
actual cost therefor, including sales tax.
(h) Administrative fees allowable by law on tenant security deposits
if expressly provided for in the Leases.
(i) New Lease Expenses (as defined and subject to the provisions of
Section 14).
(j) Any other item of cost or expense incurred or payable with respect
to the ownership, use or operation of the Premises, customary in connection
with the sale of a comparable New York City office building, apportioned on
the basis of documentary evidence of payments made or due for goods,
services and obligations therefor, based on documentary basis of payment or
incurring of costs or expenses; provided, however, that in no event shall
all such adjustments exceed the aggregate amount of $10,000.
(k) Purchaser shall receive a credit of $76,500 in respect of the cost
of completing the ongoing work with respect to the HVAC Building Management
System.
(l) Any other item which, under the terms of this Agreement, is to be
apportioned at the Closing.
13.2. At the Closing, the net adjustment pursuant to this Section 13 shall
be paid (i) if in favor of Seller, in the same manner as set forth in Section 2
of this Agreement or (ii) if in favor of Purchaser, as a credit against the
Purchase Price payable pursuant to Section 2 of this Agreement.
13.3. Purchaser and Seller hereby agree to make, and the Closing Statement
prepared at the Closing shall provide to be made, such adjustments and
prorations as and when discovered after Closing.
13.4. (a) Rental from tenants and other receipts derived from the operation
of the Premises shall belong to Seller to the extent that they relate, or are
attributable, to the period up to but not including the date of Closing, and
shall belong to Purchaser to the extent that they relate, or are attributable,
to the period from and after the date of Closing. Any and all amounts received
by Purchaser following Closing for rents due to Seller prior to Closing
(including an amount equal to Seller's share of rents receivable for the month
in which the Closing occurs) shall be paid to Seller when received. If at the
time of Closing any tenants are delinquent in the payment of rental then any
rent received from any such tenant after the Closing shall be applied to the
month during which such rent shall have been received and thereafter in the
following order of priority: (i) first, to rent arrearages with respect to the
month in which the Closing shall have occurred (subject to apportionment
pursuant to Section 13.1(a) above), (ii) second, to rent arrearages with respect
to the month preceding the month in which the Closing shall have occurred (which
shall be paid to Seller), (iii) third, to rent arrearages with respect to the
period following the month in which the Closing shall have occurred and, (iv)
fourth, to any other rent arrearages with respect to the period preceding the
month in which the Closing shall have occurred (which shall be paid to Seller).
Any amounts so payable to Seller after the Closing, shall be paid over by
Purchaser to Seller within five (5) business days of receipt by Purchaser.
Purchaser shall account to Seller monthly with respect to same. In the event of
a rental check received by Seller before Closing, notice of the dishonor of
which is received by Seller after Closing, Seller shall immediately notify
Purchaser of such dishonor and the same shall be treated as an arrearage in
accordance herewith. Seller hereby reserves and shall retain the right to
enforce the collection of moneys greater than $25,000 due Seller at or prior to
Closing from any of the tenants of the Premises, provided that Seller shall not
bring any action or proceeding to dispossess or evict any tenant. The parties
agree that at or prior to the Closing Seller shall give the tenant under the
Lease for Suite 1802 ("Suite 1802 Tenant") a 3-day eviction notice and Seller
shall be entitled to retain as its sole property the security deposit of the
Suite 1802 Tenant but not in excess of $25,000 and only if permitted by the
terms of the Lease. Thereafter, Purchaser shall have sole control and
responsibility to evict the Suite 1802 Tenant after the Closing and Purchaser
shall be entitled to all recovery of rents from the Suite 1802 Tenant. Seller
will promptly send any checks for rent received after the Closing to Purchaser.
(b) As to rental payments for fuel pass-alongs, so-called escalation
rent, percentage rent, or charges based upon real estate taxes, operating
expenses, labor costs, "porter's wage rate," cost of living increases or
otherwise (such pass-alongs, escalation rent and charges being collectively
called "Overage Rent"), for the applicable accounting period in which the
Closing occurs, if the Closing shall occur prior to the time when any such
Overage Rent is payable, then such Overage Rent shall be apportioned subsequent
to the Closing. Purchaser agrees that it will receive in trust and pay over to
Seller a pro-rated amount of such Overage Rent at the end of the calendar year
in which the Closing occurs. As to any Overage Rent payable subsequent to the
Closing with respect to an accounting period which occurs prior to the Closing,
Purchaser agrees that it will receive and hold such Overage Rent in trust for
Seller and pay the entire amount to Seller within thirty (30) days of receipt
thereof. Seller shall furnish to Purchaser all information with respect to the
accounting period in which the Closing occurs which is reasonably necessary for
the billing of such Overage Rent. If, prior to the Closing, Seller shall collect
any sums on account of Overage Rent or fixed rent for a year or other period, or
any portion of such year or other period, beginning prior to but ending
subsequent to the Closing, such sum shall be apportioned at the Closing. At the
Closing, as part of the Arrearages and Unpaid Escalations Schedule, the parties
shall agree to reconcile estimates of payments of expense escalations (and other
similar additional rent) under the Leases with actual expense escalations (and
other similar additional rent), when such amounts are actually determined by
Purchaser after the Closing. Purchaser shall provide to Seller an accounting of
all such amounts.
(c) Subsequent to the Closing, Purchaser agrees that it shall promptly
render bills for and shall exercise the same diligence in the collection of any
fixed rent and Overage Rent due to Seller pursuant to this Agreement as it does
in the collection of then current rentals due to Purchaser. Nothing herein
contained shall preclude Seller from asserting separate and independent claims
against such tenants, including, but not limited to, the institution of such
actions or proceedings as Seller shall deem necessary or advisable for the
purpose of collecting such past due fixed rent and Overage Rent; provided,
however, that subsequent to the Closing no such action or proceeding may affect
such tenant's possession and provided that such claims exceed $25,000.
(d) Except as specifically set forth in this Agreement, Purchaser
acknowledges and agrees that no representation has been made and no
responsibility is assumed by Seller with respect to the continued occupancy of
any portion of the Premises by any tenant and Seller does not guarantee or
undertake to insure that any tenant will be in occupancy at the Closing, and
Purchaser agrees that the abandonment, vacation or removal of any tenant(s)
prior to the Closing shall not be the basis for any claim on the part of
Purchaser or right of action against Seller for damages or otherwise; provided,
however, that nothing herein shall be deemed to limit or impair Purchaser's
right to exercise the Termination Option.
(e) All Security Deposits, together with accrued interest thereon, if
any, and less Seller's proportional share of administrative fees, if any,
expressly set forth in the Leases, shall be turned over by Seller to Purchaser
at the Closing. Amounts held in the form of cash shall be turned over, at
Seller's option, by (i) payment of the amount thereof to Purchaser, or (ii) a
credit to Purchaser against the Purchase Price. Any Security Deposit in a form
other than cash shall be transferred to Purchaser by way of appropriate
instruments of assignment or transfer. If any such non-cash Security Deposits
shall not be transferable at Closing, Seller shall nevertheless turn over such
Security Deposits to the possession of Purchaser at Closing and shall cooperate
with Purchaser's efforts to effect such transfer. Seller hereby designates
Purchaser as Seller's agent to act, from and after the Closing, in the name of
Seller (but for the benefit of Purchaser) with respect to any such non-cash
Security Deposits which remain in the name of Seller after the Closing. Upon
request of Purchaser, Seller shall execute powers-of-attorney in favor of
Purchaser in furtherance of the foregoing. All costs of transferring non-cash
Security Deposits shall be for Seller's account. Purchaser hereby agrees to
Indemnify Seller and its Representatives from all losses from any wrongful acts
or improper drawings or misapplication of proceeds under any non-cash Security
Deposits. Between the date of this Agreement and the Closing, Seller shall not
draw on or apply any Security Deposit without the prior written consent of
Purchaser. Notwithstanding the foregoing or any other provisions herein to the
contrary, except as provided in Section 7.7 (with respect to the Chase Lease)
and Section 13.4(a) (with respect to Suite 1802), there shall be no transfers,
adjustments or apportionments of any kind with respect to the Chase Lease, Suite
1802 or Suite 2305. The provisions of this Section 13.4(e), shall survive the
Closing.
(f) Purchaser acknowledges that the brokerage agreements and the
Mendik Management Agreement listed on Exhibit "I" attached hereto and made a
part hereof may require the payment of fees and commissions upon the renewal or
extension or the failure to exercise a right of lease termination
("Non-Termination Commission"), after the date of this Agreement, of the current
terms of existing leases by the tenants described in such brokerage agreements,
or upon the expansion, after the date of this Agreement, by such tenants into
additional space, (collectively, "Renewal and Expansion Commissions"). Purchaser
shall assume in writing the obligation to pay all Renewal and Expansion
Commissions excluding those payable to Mendik Management Company, Inc. and
excluding any Non-Termination Commissions, (i) agree in writing (the "Mendik
Commission Agreement") to pay directly to Mendik those Renewal and Expansion
Commissions expressly set forth in the Mendik Commission Agreement and (ii)
agree to pay one half of the Remy Amerique Commission. The Mendik Commission
Agreement, and the Renewal and Expansion Commissions payable by Purchaser
thereunder, shall contain the same substance as the form of Exhibit "Y" annexed
hereto and shall be executed and delivered by Purchaser at the Closing. Except
as set forth in the Mendik Commission Agreement, Purchaser shall have no
liability or obligation under or with respect to the Mendik Management
Agreement. At the Closing, Seller shall receive a credit for the entire amount
of any Renewal and Expansion Commissions paid by Seller after the date of this
Agreement but before the Closing, upon Seller's furnishing of evidence to
Purchaser that such payment has been paid and that such payment was due under
the applicable agreement set forth on Exhibit "I". Purchaser shall pay, and
shall defend, hold harmless and indemnify Seller against any claims which may
hereafter be made against Seller for, any such fees or commissions which first
accrue on or after the date of the Closing. The provisions of this Section 14(f)
shall survive the Closing.
(g) Seller shall credit Purchaser at Closing for (i) except as set
forth in the last sentence of this Section 13.4(g), any unpaid leasing
inducement cost (including, without limitation, any work allowance and the value
of any work to be performed at the expense of Landlord (payable by Seller) in
respect of the initial term of any Leases executed and delivered before the date
of this Agreement, (ii) any commissions which have not been paid to brokers and
which are payable by Seller in respect of the initial term of any Leases
executed and delivered before the date of this Agreement including any payments
to existing and prior managing or leasing agents, (iii) all unpaid leasing
inducement costs and brokerage commissions payable in respect of the Remy
Amerique Expansion Agreement, but expressly excluding (iv) the Renewal and
Expansion Commissions. Notwithstanding clauses (i) and (iii) above, (A)
Purchaser shall not receive any credit at Closing (and Purchaser shall be fully
responsible under the respective Leases) in respect of any work that may be
required to be performed by the landlord under the Menswear Group Leases in
respect of the 3,558 rentable square feet on the 35th floor of the Building that
was to be built out by landlord, and (B) Purchaser and Seller shall, at such
time as the same may become due and payable, each pay one-half (1/2) of the Remy
Amerique Commission. The provisions of this Section 13.4(g) shall survive the
Closing.
(h) Purchaser agrees to pay to Seller the amounts set forth on
Schedule "4" annexed hereto and made a part hereof, subject to the terms and
conditions set forth on Schedule "4", in connection with the Mannor Space and
the Threadtex Space (both as defined therein). The provisions of this Section
13.4(h) shall survive the Closing.
13.5. Without limiting any of the provisions of this Section 13, (a)
Purchaser shall pay its attorneys' fees and expenses, recording fees and
charges, the cost of the Title Commitment, any and all premiums of any title
insurance and endorsements, the cost to obtain a survey of the Land, and (b)
Seller shall pay its attorneys' fees and expenses, and the New York State
Conveyance Tax in accordance with Article 31 of the New York State Tax Law and
the New York City Real Property Transfer Tax in accordance with Title 11 of
Chapter 46 of the Administrative Code of the City of New York and all other
transfer, documentary, stamp, deed and similar taxes and recordation taxes and
filing fees in connection with the execution and delivery of the Deed.
13.6. Any calculation made in computing any apportionment made pursuant to
this Section 13 may be reconfirmed following the Closing, and any errors thereto
shall be corrected immediately upon notice from the other party that such
error(s) exist. The provisions of this Section 13 shall survive the Closing for
twelve (12) months.
SECTION 14. OPERATION OF PREMISES.
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14.1. Subject to the further terms of this Section 14, until the Closing,
Seller shall operate the Premises in the ordinary course of business and shall
maintain the Premises in substantially the same manner as it is currently being
maintained (normal wear and tear excepted); provided, however, that Seller shall
not be required to make any capital expenditures with respect to the Premises.
If Seller shall make any capital expenditures which (a) are required as a result
of an emergency (other than casualty) with notice to and consultation with the
Purchaser if reasonable under the circumstances, or (b) are consented to by
Purchaser, Seller shall be entitled to a credit for the cost thereof at the
Closing equivalent to the period of time from and after the Closing bears to the
estimated useful life of the capital expenditure.
14.2. (a) Prior to the Closing, Seller shall not modify, extend, renew,
cancel or permit the surrender of any Lease or enter into any new Lease of all
or any portion of the Premises without Purchaser's prior written consent. If the
Closing has not occurred within 75 days of the Scheduled Closing Date, the
Seller, in its sole discretion, may extend, renew, or enter into any new Lease
of all or any portion of the Premises, without Purchaser's consent, provided
Seller continues to act in accordance with the standards and practices currently
employed by Seller at the Premises.
(b) If Seller enters into any new Leases pursuant to this Section 14,
or if there is any extension or renewal of any Leases after the date hereof,
whether or not such Leases provide for their extension or renewal, or any
expansion or modification of any Leases (each, a "New Lease"), Seller shall keep
accurate records of all reasonable expenses (collectively, "New Lease Expenses")
incurred in connection with each New Lease, including, without limitation, all
expenses, or reimbursements to tenants for the following: (i) brokerage
commissions and fees, (ii) expenses incurred for repairs and improvements to
satisfy the tenant's requirements, (iii) the cost of removal and/or abatement of
asbestos, and (iv) legal fees. Notwithstanding the foregoing, all such expenses
(other than Non-Termination Commissions) payable in respect of the Remy Amerique
Expansion Agreement shall not constitute "New Lease Expenses", but shall be paid
by Seller or, to the extent not paid on or before the Closing Date, credited
against the Purchase Price.
(c) The New Lease Expenses for each New Lease allocable to and payable
by Seller shall be determined by multiplying the amount of such New Lease
Expenses by a fraction, the numerator of which shall be the number of days
contained in that portion, if any, of the term of such New Lease commencing on
the commencement date thereof ("Commencement Date") and expiring on the date
immediately preceding the Closing Date, and the denominator of which shall be
the total number of days contained in the period commencing on the Commencement
Date and expiring on the date of the scheduled expiration of the term of such
New Lease, and the remaining balance of the New Lease Expenses for each New
Lease shall be allocable to and payable by Purchaser.
14.3. To Seller's knowledge, Exhibit "V" annexed hereto and made a part
hereof contains a true and correct list of all service agreements, maintenance
contracts, contracts for the purchase or delivery of labor, services, utilities,
materials, goods, inventory or supplies, cleaning contracts, equipment rental
agreements or leases ("Service Contracts") affecting the Premises. Seller shall
not at any time following the date hereof, without Purchaser's prior written
consent, enter into any new Service Contract (or renew or extend any existing
Service Contracts) which shall not be cancelable immediately without cost.
Within 5 business days after the execution and delivery of this Agreement,
Seller shall give notice of termination (or cause such notice to be given) for
all the Service Contracts (except as set forth below), each such termination to
be conditional on the Closing and effective on the later of (a) the Closing Date
and (b) the earliest date permitted under the respective Service Contract, and,
if the Closing Date shall occur before the earliest date permitted for the
termination of any Service Contract, Purchaser shall assume and remain obligated
thereunder for the period from the Closing to the date of termination of such
Service Contract pursuant to Exhibit "R". Notwithstanding the foregoing,
Purchaser acknowledges and agrees that the Service Contracts with Xerox and AFA
Fire Protection (collectively, "Excluded Service Contracts") shall not be
terminated by Seller, but shall be assigned by Seller and assumed by Purchaser,
pursuant to Exhibit "R" as aforesaid. The provisions of this Section 14.3 shall
survive the Closing.
14.4. Purchaser advises Seller that, effective as of the Closing Date, all
employees of: (a) Seller (or Seller's managing agent) employed at the Building;
and (b) Seller's building services, engineering, cleaning and security
contractor(s) employed at the Building may not be offered the same employment by
Purchaser (or by the property manager to be engaged by Purchaser) under the
current employment contracts, agreements and/or terms and conditions of
employment, including any collective bargaining agreements or other union
contracts. In connection therewith, Purchaser has required that Seller terminate
and Seller has agreed to terminate, effective as of the Closing Date: (i) any
agreements for building services, engineering, cleaning and security services,
including without limitation the Real Estate Management Agreement, dated
February 1, 1995, between 54-55 Street Company and Mendik Management 00 Company,
Inc. ("Mendik"), and the Building Services Agreement, dated March 1, 1995,
between 54-55 Street Company and Building Maintenance Service Corp. ("BMSC")
(the "Cleaning Contract"), or (ii) in the event the Cleaning Contract is not in
effect on the Closing Date, any contractor or employee(s) who is then performing
the cleaning and security services at the Building on the date of this
Agreement; and (iii) all other employees employed at the Building, including
without limitation employees employed at the Building by Seller and/or BMSC
and/or Mendik covered by the 1998 Engineer Agreement between the Realty Advisory
Board on Labor Relations, Incorporated and Local 94-94A-94B, International Union
of Operating Engineers, AFL-CIO ("Local 94"), effective January 1, 1998 to
December 31, 2000 and the 1999 Commercial Building Agreement between Local
32B-32J, Service Employees International Union, AFL-CIO ("Local 32B-32J") and
the Realty Advisory Board on Labor Relations, Inc., effective January 1, 1998 to
December 31, 2000 (together, the "Union Contracts"). Purchaser acknowledges that
Seller may incur liability for severance payments, termination pay, other
benefits (including, without limitation, welfare fund, pension fund, training
fund, annuity fund and legal fund payments) and/or other amounts due to any
employee, union or pension fund arising out of or relating to the termination of
the employees employed at the Building covered by the Union Contracts
(including, without limitation, any amounts due and/or payable to a
multi-employer pension plan for withdrawal liability under the Employee
Retirement Income Security Act and the Multiemployer Pension Plan Amendments Act
of 1980) and/or for the reimbursement of such amounts payable by BMSC and/or
Mendik to the employees employed at the Building covered by the Union Contracts
(collectively, "Termination Payments") as a result of the termination by Seller
and/or BMSC and/or Mendik of (A) those employees who are covered by the Union
Contracts and whose names are set forth on Exhibit M-2 annexed hereto and (B)
any new persons hired prior to the Closing Date to replace any of the persons
described in clause (A); provided, however, that Purchaser shall have no
obligation under this Section 14.4 in respect of any person who (x) was so
replaced (the persons described in clauses (A) and (B), other than any person
who was replaced as described in clause (B), are collectively called the "Union
Employees"); or (y) is not a Union Employee. Purchaser agrees that it shall be
liable for the payment of all such Termination Payments (including, without
limitation, all penalties and interest, if any) which are or may become due and
owing and hereby agrees to indemnify, defend and hold harmless Seller and
Seller's Principal(s) from and against all such Termination Payments and all
other claims, actions, proceedings, awards, losses, costs, damages, liabilities
and expenses (including, without limitation, reasonable attorneys' fees and
disbursements, including on appeal) incurred by Seller or Seller's Principal(s),
including without limitation any of the same arising from or by reason of any
claim made by any Union Employee, Local 94, Local 32B-32J, BMSC, Mendik and/or
any other contractor of Seller performing services of the type covered by the
Cleaning Contract (if the Cleaning Contract is not in effect on the Closing
Date), in each case relating to or arising out of the termination of the Union
Employees, Purchaser's and/or Seller's failure to pay any Termination Payments
as and when due and payable, Purchaser's failure to hire any or all of the Union
Employees and/or Purchaser's failure to assume or become subject to the Union
Contracts. Purchaser shall defend all such claims, actions and proceedings with
counsel selected by Purchaser with the approval of Seller, which approval shall
not be unreasonably withheld or delayed, and Seller shall have the right to
fully participate in the defense of any or all claims, at its option, with
counsel selected by Seller at Seller's expense; provided, u, that Purchaser
shall have full control of any negotiations with any employees and/or unions
concerning hiring by and/or continuation of employment with Purchaser of any
employees at the Building and the amount of any Termination Payments to be paid
to Union Employees who are not hired by and/or offered continued employment with
Purchaser, and Seller shall have no right to participate in such negotiations;
provided, further, however, that Seller shall have the right to participate in
such negotiations in the event any claims, actions or proceedings referred to
herein are initiated against Seller or Seller's Principals and such negotiations
relate to said claims, actions or proceedings.
14.5. Within 5 business days after the execution and delivery of this
Agreement, Purchaser shall give Mendik notice of the termination of the Mendik
Agreement, effective upon the later of (a) the Closing and (b) the earliest date
permitted under the Mendik Management Agreement for such termination, in which
case, if the Closing Date shall occur before the earliest date permitted for
such termination, Purchaser shall remain obligated to pay all management fees
and expenses payable thereunder to Mendik, for the period from the Closing to
the date of termination of the Mendik Agreement. The provisions of this Section
14.5 shall survive the Closing.
SECTION 15. BROKER.
------
15.1. Each of Seller and Purchaser represents and warrants to the other
that it has dealt with no broker, finder or other person who is entitled, by
reason of dealing with the indemnifying party, to any fee, commission or other
similar compensation in connection with the transaction contemplated by this
Agreement other than Cushman & Wakefield, Inc. (the "Broker") Seller represents
and warrants that it shall be solely responsible for the payment of any and all
fees, commissions or other compensation due to the Broker in connection with
this transaction pursuant to a separate agreement previously entered into
between Seller and Broker.
15.2. Purchaser shall indemnify, defend and hold harmless Seller, its
agents, employees and representatives from and against any and all losses,
costs, liabilities, claims, damages or expenses (including, without limitation,
reasonable attorneys' fees and costs) arising out of the breach of Purchaser's
representations or warranties contained in this Section 15.
15.3. Seller shall indemnify, defend and hold harmless Purchaser, its
agents, employees and representatives from and against any and all losses,
costs, liabilities, claims, damages or expenses (including, without limitation,
reasonable attorneys' fees and costs) arising out of the breach of Seller's
representations or warranties contained in this Section 15.
15.4. The representations, warranties and indemnities contained in this
Section 15 shall survive the Closing or, if the Closing does not occur, the
termination of this Agreement, for a period of nine (9) months.
SECTION 16. NOTICES.
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16.1. All notices under this Agreement shall be in writing, shall refer to
this Agreement and shall be (a) delivered personally, (b) sent by registered or
certified mail, postage prepaid, return receipt requested, or (c) sent by a
nationally recognized overnight courier. Notices shall be deemed given on the
first business day on or after receipt or refusal thereof. Except as otherwise
expressly provided in this Agreement, all notices shall be given in accordance
with the above as follows:
If to Seller:
Myron A. Minskoff
c/o Myron A. Minskoff, Inc.
1350 Avenue of Americas, 23rd Floor
New York, New York 10019
Attention: Robb Aley Allan
Marjorie Minskoff Schleifer
c/o Minskoff Grant Realty & Management Corp.
1350 Avenue of Americas, 32nd Floor
New York, New York 10019
Attention: Jean Minskoff Grant
Estate of Jerome Minskoff
c/o United States Trust Company of New York,
Co-Executor
114 West 47th Street
New York, New York 10036
Attention: Steven Scott Kirkpatrick
and
c/o Michael Breede, Esq.
Rogers & Wells
200 Park Avenue, 54th Floor
New York, New York 10 166
with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10 166
Attention: Andrew H. Levy, Esq.
Telephone No.: 212-351-4037
Fax No.: 212-351-4035
If to Purchaser:
c/o Reckson Associates Realty Corp.
10 East 50th Street
New York, New York 10022
Attention: Philip M. Waterman III
Jason Barnett, Esq.
Telephone No.: 212-715-6522
Fax No.: 212-715-6535
with a copy to:
Fried, Frank Harris Shriver & Jacobson
One New York Plaza
New York, New York 10004-1980
Attention: Joshua Mermelstein, Esq.
Telephone No.: 212-859-8137
Fax No.: 212-859-4000
16.2. Any counsel designated above or any replacement counsel which may be
designated by Purchaser and/or Seller by written notice to the other party is
hereby authorized to give notices hereunder on behalf of its respective client.
SECTION 17. LIMITATION ON SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
---------------------------------------------------------
OBLIGATIONS.
- -----------
17.1. Except as expressly set forth herein to the contrary, no
representations, warranties or obligations of Seller or Purchaser set forth in
this Agreement shall survive the Closing or earlier termination of this
Agreement.
17.2. The delivery of the Deed by Seller and the acceptance thereof by
Purchaser and the delivery by Purchaser of the consideration required of
Purchaser to Seller hereunder shall be deemed the full performance and discharge
of every obligation on the part of such party to be performed hereunder, except
those obligations of Seller and Purchaser, respectively, which are expressly
stated in this Agreement to survive the Closing.
SECTION 18. PROHIBITION OF RECORDING.
------------------------
Neither Seller nor Purchaser shall record, or arrange to record, this
Agreement or any memorandum thereof with any filing office in any jurisdiction.
SECTION 19. MISCELLANEOUS.
-------------
19.1. Purchaser shall not sell, assign, convey or otherwise transfer all or
any portion of its rights or interest under this Agreement without the prior
written consent of Seller, which consent may be arbitrarily withheld by Seller
for any reason or no reason, provided, however, that Purchaser shall be
permitted to assign its rights under this Agreement without the consent of
Seller only at and conditioned upon the Closing to an Affiliate of the
Purchaser. Affiliate shall mean an entity which is owned, directly or
indirectly, at least 5 1 % by the Purchaser. If said assignee does not have a
net worth of at least $500 million dollars then Purchaser shall deliver to
Seller at the Closing an unconditional, primary guarantee from Purchaser or an
Affiliate of Purchaser which has a net worth of at least $500 million dollars,
in form satisfactory to Seller ("Guarantor"), with respect to all post-closing
obligations of said assignee. At the Closing, Purchaser shall provide a current
balance sheet or other evidence reasonably satisfactory to Seller, certified in
writing by Purchaser, which establishes that assignee's or Guarantor's net
worth, as the case may be, is at least $500 million dollars.
19.2. This Agreement shall be governed solely by, and construed solely in
accordance with, the internal laws of the State of New York.
19.3. The captions contained in this Agreement were inserted for
convenience of reference only and shall in no way define, describe or limit the
scope or intent of this Agreement or any of the provisions hereof.
19.4. This Agreement shall be binding upon, and shall inure to the benefit
of, the successors and permitted assigns of the parties hereto.
19.5. Time shall be of the essence as to each party's performance of all of
its obligations under this Agreement; provided, however, that neither party
shall be deemed in breach of its obligations hereunder (other than those
contained in Section 2 or those required to be performed at the Closing) if such
party shall fully perform its obligations within two (2) business days of the
date otherwise specified for performance.
19.6. Nothing contained in this Agreement is intended to confer upon any
person, other than the parties hereto and their respective successors and
permitted assigns, any rights, remedies, obligations or liabilities under, or by
reason of, this Agreement.
19.7. This Agreement is a contract for the sale of the Premises only and is
not intended to be, and should not be construed as, an agreement of lease for
the Premises, an installment sales contract, or a contract for deed.
19.8. This Agreement 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, with the same effect as if each party had executed all
counterparts.
19.9. The parties agree that prior to the Closing Date no party nor any
Affiliate shall, with respect to this Agreement and the transactions
contemplated hereby, contact or conduct negotiations with public officials, make
any public pronouncements, issue press releases or otherwise furnish information
regarding this Agreement or the transactions contemplated hereby to any third
party (other than Broker, attorneys, accountants, prospective title insurers or
any lending institution having a lien or intending to have a lien on the
Premises or as required by law), without the consent of the other party, which
consent shall not be unreasonably withheld, delayed or conditioned it being
agreed that the parties may respond to inquiries from the press so long as they
do not disclose any economic or other material terms of this Agreement which
have not been previously disclosed as permitted hereunder.
19.10. Purchaser agrees that, notwithstanding any contrary provisions of
this Agreement, Purchaser shall look only to the Seller's estate and interest in
the Premises and the holdback provided for in Section 7.6 (to the extent not
released to Seller pursuant to Section 7.6(g) hereof) for the collection of a
judgment (or other judicial process) requiring the payment of money by Seller,
and no other property or assets of the Seller or any direct or indirect partner,
joint venturer, member, officer, or representative or any affiliate thereof,
disclosed or undisclosed (collectively, "Seller's Principal"), shall be subject
to levy, execution or other enforcement procedure for the satisfaction of any
judgment against Seller. Purchaser shall not name any Seller's Principal as a
defendant in any legal action relating to this Agreement. Without limiting the
foregoing, Purchaser shall not look to or make any claim whatsoever against any
proceeds of the Purchase Price (other than any holdbacks or escrows provided for
in this Agreement), any prorations or adjustments which are required to be made
in favor of or paid to Seller by Purchaser after the Closing, or any other
monies released or distributed to or in the possession of the Seller or any
Seller's Principal (including monies released from holdbacks or escrows). The
provisions of this Section 19.10 shall survive the Closing.
19.11. Submission of drafts of this Agreement for examination or execution
by Purchaser shall not bind Seller in any manner or be construed as an offer to
sell, and no contract or obligation of Seller shall arise until this instrument
is executed and delivered by both Seller and Purchaser and the Downpayment has
been received by the Escrowee.
19.12. Any sums due after the Closing by either party hereto to the other,
if not paid within thirty (30) days after the obligation to pay arises, shall
bear interest at the lesser of (a) 2% over the Chase prime rate in effect from
time to time in New York City per annum or (b) the maximum rate permitted by law
from the time such obligation arises until payment. The provisions of this
Section 19.12 shall survive the Closing.
19.13. The parties hereto agree that no part of the Purchase Price shall be
deemed to have been paid by Purchaser for any Personal Property transferred
hereunder. Sales or use taxes, if any, payable by reason of the sale of any of
the Personal Property shall be the sole responsibility of and shall be paid by
Purchaser, and Purchaser shall Indemnify Seller and its Representatives with
respect thereto. The indemnity set forth in the preceding sentence shall survive
Closing.
19.14. Seller shall in Seller's discretion commence or continue any
proceeding for the reduction of the assessed valuation of the Premises for tax
years prior to, but not including, the New York City fiscal year 1999-2000.
Purchaser shall in Purchaser's discretion commence or continue any proceeding
for the reduction of the assessed valuation of the Premises for New York City
fiscal year 1999-2000 and all subsequent tax years, provided, however, that the
net refund or credit of taxes, if any, for the 1999-2000 tax year shall be
divided between Seller and Purchaser in accordance with the proportion which the
period covered by such refund or credit in which the Premises was owned by
Seller bears to the entire period covered, after deducting therefrom a pro rata
share of all expenses, including counsel fees, incurred in obtaining such refund
or credit (the allocation of such expenses to be based upon the total refund or
credit obtained in the proceeding and in any other proceeding simultaneously
involved in the trial or settlement). Purchaser shall deliver to Seller, upon
demand, receipted tax bills and canceled checks used in payment of such taxes
and shall execute any and all consents or other documents, and do any act or
thing necessary for the collection of such refund or credit by Seller. With
respect to real estate tax refunds or credits with respect to the Premises
relating to fiscal years prior to the Closing which may be required to be
reimbursed to tenants at the Premises Purchaser and Seller shall enter into an
escrow arrangement in the form attached hereto as Exhibit "Z" and made a part
hereof, on or prior to the Closing Date, for the deposit of such refunds into
escrow pending the payment of such reimbursement to the tenants, and returning
all excess funds to Seller for all years prior to 1999-2000, and for an
equitable apportionment of the excess funds between Seller and Purchaser for the
year 1999-2000. The provisions of this Section 19.4 shall survive the Closing.
19.15. This Agreement cannot be modified, changed or discharged except by
an agreement in writing, signed by the party or parties against whom enforcement
of such modification, change or discharge is sought (and, in the case of Seller,
which Seller intends to have executed by any two (2) of the "parties of the
first part" of Seller, on behalf of Seller, who have authority to execute such
documents).
19.16. If Seller intends to make a Unit Election (as defined below), and
provided that Seller and Purchaser are able to agree on the terms (including,
but not limited to, the valuation of units) of the Unit Election as hereinafter
set forth, then immediately prior to the Closing, Seller may transfer the
Premises to a special purpose limited liability company ("SPE") and may
distribute its membership interests in the SPE to the present joint venture
members of Seller, subject to the rights and obligations provided for under this
Agreement. In such a case, (a) this Agreement shall automatically become an
agreement by Purchaser to purchase, and an agreement by the SPE members to sell
or exchange, all of the SPE membership interests for consideration equal to the
Purchase Price consisting of cash and Units, as described and based upon the
terms and conditions set forth herein and (b) Seller shall indemnify and hold
Purchaser harmless (which indemnity shall survive the Closing) from and against
any and all liabilities or obligation of the SPE which accrue prior to the
Closing. Upon written notice (the "Unit Election Notice") given to Purchaser not
less than 10 days prior to the Closing, not more than 20 of the members of
Seller shall have the option to take a portion, but in no event less than
$10,000,000.00 in the aggregate, of the Purchase Price in the form of common
units of Reckson Operating Partnership, L.P. ("Units"); provided, that each of
Seller's members that makes the election to receive a portion of the Purchase
Price in the form of Units (the "Unit Election") shall agree to those
representations, warranties and restrictions as set forth on Schedule "4"
annexed hereto and any other terms which Purchaser shall reasonably require. The
Unit Election Notice shall describe the amount of cash and the Units to be
received by each such member in exchange for its membership interest in the SPE.
If Purchaser and Seller agree to the terms provided for in the Unit Election,
any amendments to this Agreement as may be necessary to permit the Unit Election
and to permit the members of Seller to receive such Units shall be made without
any increase in the respective obligations or liabilities or any decrease in the
respective rights of the parties (except as may be required hereunder to permits
the Units to be used as consideration for the sale). Such amendments may
include, without limitation, at Seller's option, Seller's appointment of an
administrator or custodian to receive and disburse, on behalf of all SPE
members, the balance of the Purchase Price and all prorations, adjustments and
refunds which are payable after the Closing. If Purchaser and Seller do not, on
or before the Closing Date, agree, in each party's sole discretion, to the terms
provided for in the Unit Election, then the Unit Election shall be deemed null
and void, Seller shall not transfer the Premises to the SPE and Seller and
Purchaser shall proceed with the sale of the Premises in accordance with this
Agreement as if the Unit Election Notice had never been given. It is expressly
acknowledged and agreed that if, for any reason or no reason, the Unit Election
does not occur, or if the Unit Election has occurred but if for any reason any
SPE member who was to receive Units in accordance with the Unit Election does
not accept the Units, this Agreement shall remain in full force and effect and
the parties' obligations to each other shall not be affected thereby. In such
latter case, the portion of the Purchase Price allocated to the Units that are
not accepted shall be paid in cash at the Closing. The parties intend that any
exchange of SPE membership interests for Units qualify as a tax-free exchange
under Section 721 of the Internal Revenue Code. In no event shall any transfer
of the Premises by Seller to an SPE or any resulting transfer of this Agreement,
operate to release Seller from any and all obligations or liabilities under this
Agreement.
19.17. Other than that certain confidentiality letter, dated as of August
24, 1999, from Purchaser to Seller and to Cushman & Wakefield, Inc. (the
"Confidentiality Agreement") [but excluding paragraph 5 of the Confidentiality
Agreement, which paragraph 5 is superseded by this Agreement], this Agreement
contains the entire agreement of the parties with respect to the subject matter
hereof, and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not contained herein shall be of any force or
effect, all of the same being superseded, revoked and merged herein.
19.18. Purchaser acknowledges and agrees that, except as set forth
expressly in this Agreement, Seller does not make any representation or warranty
with respect to the accuracy or completeness of any of material, data and
information (the "Due Diligence Materials") provided by Seller and its
representatives, to Purchaser or its affiliates, that Purchaser has reviewed,
and agrees that Seller shall not have any liability to Purchaser resulting from
the use of or reliance on the Due Diligence Materials. Purchaser agrees that,
except as otherwise expressly set forth in this Agreement, it is responsible for
and is relying solely upon its own due diligence investigations of the Property,
including without limitation, its investigations of any structural, mechanical,
and/or environmental conditions.
19.19. Purchaser and Seller hereby agree to reasonably cooperate and assist
each other with respect to any post-closing matter (including, without
limitation, providing reasonable access to the records of the Building and the
tenants, and providing information relating to the operation of the Building),
upon the request of the other, so long as the same is without cost or expense to
the requested party (other than DE MINIMIS amounts), and so long as neither the
rights and privileges are reduced, nor the obligations or liabilities increased,
of the requested party.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
SELLER: 54-55 STREET COMPANY
Federal Employer Identification By:/s/ Myron A. Minskoff
------------------------------------
Number # B-13-1891134-5 Myron A. Minskoff, Partner
By:/s/ Marjorie Minskoff Schleifer
------------------------------------
Marjorie Minskoff Schleifer, Partner
By: Estate of Jerome Minskoff, Partner
By:/s/ Patricia Minskoff
--------------------------------
Patricia Minskoff, Co-Executor
By: The United States Trust Company
of New York, Co-Executor
By:/s/ Steven Scott Kirkpatrick
----------------------------
Steven Scott Kirkpatrick
Vice President
PURCHASER: RECKSON OPERATING PARTNERSHIP, L.P.
Federal Employer Identification By: Reckson Associates Realty Corp., its
Number # 11-3233647 General Partner
By:/s/ Jason Barnett
-------------------------------------
Name: Jason Barnett
Title: Executive Vice President
THE UNDERSIGNED JOINS IN THE EXECUTION HEREOF SOLELY FOR THE PURPOSE OF AGREEING
TO ACT AS "ESCROWEE" PURSUANT TO THE PROVISIONS OF THIS AGREEMENT RELATING TO
THE ESCROW OF THE ESCROW FUNDS.
GIBSON, DUNN & CRUTCHER LLP
By:/s/ Richard M. Ross
------------------------
Name: Richard M. Ross
THE UNDERSIGNED JOINS IN THE EXECUTION HEREOF SOLELY FOR THE PURPOSE OF AGREEING
TO ACT AS "WARRANTIES HOLDBACK ESCROWEE" AND "CHASE HOLDBACK ESCROWEE",
RESPECTIVELY, PURSUANT TO THE TERMS OF THIS AGREEMENT RELATING TO THE ESCROW OF
THE WARRANTIES HOLDBACK FUNDS AND THE CHASE HOLDBACK FUNDS.
FRIED FRANK HARRIS SHRIVER & JACOBSON
By:/s/ Eric Feuerstein
------------------------
Name: Eric Feuerstein
Exhibit 10.2
AGREEMENT OF PURCHASE AND SALE
BETWEEN
NBBRE-919 THIRD AVENUE ASSOCIATES, L.P.
AS SELLER,
AND
RECKSON OPERATING PARTNERSHIP, L.P.
AS PURCHASER
DATED AS OF MAY 10, 1999
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I PURCHASE AND SALE; PURCHASE PRICE........................1
1.1. Purchase and Sale............................................1
1.2. Purchase Price...............................................2
1.3. Escrow Provisions............................................2
ARTICLE II CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.........4
2.1. Conditions Precedent for Purchaser's Obligations.............4
2.2. Termination Option...........................................5
2.3. Waiver of Conditions.........................................5
ARTICLE III CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER............5
3.1. Conditions Precedent for Seller's Obligations................5
3.2. Waiver of Conditions.........................................6
ARTICLE IV PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS....6
4.1. Purchaser's Representations and Warranties...................6
4.2. Covenants of Purchaser.......................................9
ARTICLE V SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.......9
5.1. Seller's Representations and Warranties......................9
5.2. Breaches of Representations and Warranties..................14
5.3. Covenants of Seller as to the Real Property and Loan........15
5.4. Survival of Representations and Warranties; Holdback........16
ARTICLE VI CLOSING; EXPENSES AND APPORTIONMENTS....................18
6.1. Place of Closing............................................18
6.2. Items to Be Executed or Delivered by Seller.................18
6.3. Items to Be Delivered or Executed by Purchaser..............21
6.4. Taxes; Title Expenses.......................................22
6.5. Apportionments..............................................22
ARTICLE VII DEFAULTS................................................26
7.1. Purchaser Default...........................................26
7.2. Seller Default..............................................26
ARTICLE VIII INSPECTIONS; DUE DILIGENCE..............................26
8.1. Inspection of the Real Property.............................26
8.2. Purchaser's Work............................................27
8.3. Due Diligence...............................................27
ARTICLE IX INDEMNIFICATION.........................................29
9.1. Indemnification.............................................29
9.2. Release.....................................................30
ARTICLE X CASUALTY AND CONDEMNATION...............................30
10.1. Casualty....................................................30
10.2. Condemnation................................................31
ARTICLE XI MISCELLANEOUS...........................................31
11.1. No Third-Party Beneficiaries................................31
11.2. Broker......................................................31
11.3. [Intentionally Blank.]......................................32
11.4. Assignment..................................................32
11.5. Waiver of Jury Trial........................................32
11.6. Waiver......................................................32
11.7. Captions....................................................33
11.8. Prevailing Party............................................33
11.9. Counterparts................................................33
11.10. Exhibits and Schedules......................................33
11.11. Notices.....................................................33
11.12. Construction................................................34
11.13. Amendment...................................................34
11.14. Entire Agreement............................................35
11.15. Governing Law...............................................35
11.16. Monetary Amounts............................................35
11.17. Time of the Essence.........................................35
11.18. Confidentiality.............................................35
11.19. No Recording................................................35
11.20. Review Materials............................................35
11.21. Consent to Jurisdiction.....................................35
11.22. Acquisition of Partnership Interests........................36
<PAGE>
LIST OF EXHIBITS AND SCHEDULES
- ------------------------------
Exhibit "A"- List of Collateral Agreements
Exhibit "A-1" List of Ancillary Documents
Exhibit "A-2" Approved Budget Approval
Exhibit "B"- Form of Borrower Estoppel
Exhibit "C"- Form of Assignment and Assumption of Mortgage
Exhibit "D"- Form of Endorsement of Note
Exhibit "D-1" List of Original Notes
Exhibit "E"- Form of Assignment and Assumption of Collateral Agreements
Exhibit "F"- List of Tenants
Exhibit "G"- Non-Foreign Status Affidavit
Exhibit "H"- Form of Assignment and Assumption of Share
Exhibit "H-1"- Form of Stock Power
Exhibit "H-2"- Share Documents
Schedule "1"- Representations and Warranties Exception Schedule
Schedule "2"- List of Cash Collateral Accounts
Schedule "3"- Approved Budget
Schedule "4"- List of Leases; Arrearage Schedule; Leasing Commissions;
Security Deposits
Schedule "5"- List of Service Agreements, Construction Agreements and
Construction Contract Information
Schedule "6"- Covenants Exception Schedule
Schedule "7"- Pre-Closing Expenditures
Schedule "8"- List of Insurance Policies
Schedule "9"- List of Borrower Affiliates
Schedule "10"- Review Materials
Schedule "11"- ESG Information Book
Schedule "12"- Title Letter
<PAGE>
AGREEMENT OF PURCHASE AND SALE
------------------------------
AGREEMENT OF PURCHASE AND SALE (this "Agreement"), dated as of May
10, 1999, by and between NBBRE-919 THIRD AVENUE ASSOCIATES, L.P., a Delaware
limited partnership, having an office c/o NBB Real Estate, Inc., 530 Fifth
Avenue, Ninth Floor, New York, New York 10036 ("Seller"), and RECKSON OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership, having an office c/o Reckson
Associates Realty Corp., 10 East 50th Street, 27th Floor, New York, New York
10022 ("Purchaser").
WITNESSETH:
-----------
WHEREAS, Seller is the owner and holder of that certain mortgage loan
(the "Loan") (a) evidenced by that certain Consolidated, Amended and Restated
Fee and Leasehold Mortgage Note, dated as of September, 21 1993, in the
principal amount of $325,000,000 (the "Note"), made by 919 Fee Associates L.P.
and 919 Third Avenue Associates L.P., each a New York limited partnership
(collectively, the "Borrower"), jointly and severally, in favor of Seller, and
(b) secured by, among other things, that certain Consolidated, Amended and
Restated Fee and Leasehold Mortgage, dated as of September, 21 1993, made by
the Borrower, as mortgagor, to Seller, as mortgagee, recorded on September 23,
1993 in the Office of the City Register, New York County, in Reel 2010, Page
0041 (the "Mortgage") and encumbering the improved real property (the "Real
Property") more particularly described therein; and
WHEREAS, upon and subject to the terms and conditions hereinafter set
forth, Seller desires to sell and Purchaser desires to purchase the Loan and
the interest of Seller in, to and under the Note, the Mortgage and all
instruments, documents and title insurance policies relating to or executed in
connection with or pursuant to the Loan as more particularly described on
Exhibit "A" annexed hereto and made a part hereof (collectively, the
"Collateral Agreements") (the Note, the Mortgage and the Collateral Agreements
hereinafter are referred to collectively as the "Loan Documents").
NOW, THEREFORE, in consideration of One Hundred Dollars ($100) and the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser hereby agree as follows:
ARTICLE I
PURCHASE AND SALE; PURCHASE PRICE
1.1. Purchase and Sale. Subject to and in accordance with the terms and
conditions set forth herein, Seller shall sell, assign and transfer the Loan to
Purchaser, and Purchaser shall purchase and accept the Loan from Seller, "AS
IS", "WHERE IS", "WITH ALL FAULTS", without recourse to Seller and without
representation or warranty, express or implied, by Seller, except as
specifically set forth herein.
1.2. Purchase Price. (a) The purchase price for the Loan is Two Hundred
Seventy-Seven Million Five Hundred and Forty-Eight Thousand Dollars
($277,548,000) (the "Purchase Price") which shall be payable in accordance with
the further terms of this Section 1.2.
(b) The Purchase Price shall be paid as follows:
(i) (A) Simultaneously with the execution and delivery of this
Agreement, Purchaser shall deliver to Gibson, Dunn & Crutcher LLP ("Escrow
Agent"), by wire transfer in immediately available federal funds, the amount of
Ten Million Dollars ($10,000,000) as a deposit (the "Initial Deposit") on
account of the Purchase Price.
(B) Unless Purchaser has previously exercised any
Termination Option, on or before the Due Diligence Expiration Date (as
hereinafter defined) or such later date as may be set forth in Section 8.3(c)
hereof, Purchaser shall deliver to Escrow Agent, by wire transfer in
immediately available federal funds, the amount of Five Million Dollars
($5,000,000) as an additional deposit (the "Additional Deposit") on account of
the Purchase Price. Purchaser acknowledges and agrees that upon Purchaser's
payment of the Additional Deposit, Purchaser shall be deemed to have forever
waived the right to exercise any rights under the terms of Section 8.3 hereof
(other than the right to the reduction of the Purchase Price, if applicable).
If Purchaser waives or is deemed to have waived it rights under the terms of
Section 8.3 hereof and Purchaser fails to pay the Additional Deposit as
provided in the first sentence of this clause (B), then, in such event,
Purchaser shall be deemed to be in material default of its monetary obligations
under this Agreement and Seller shall be entitled to terminate this Agreement
and retain the Initial Deposit (and any interest thereon) as provided in
Section 7.1 hereof (without regard to any conditions set forth in Section 7.1
hereof).
(C) The Initial Deposit and the Additional Deposit,
together with all accrued interest thereon shall hereinafter collectively shall
be referred to as the "Escrow Funds". The Escrow Funds shall be held in escrow
in accordance with the provisions of Section 1.3 hereof. Any interest earned on
the Initial Deposit and the Additional Deposit shall be in addition to, and not
a credit against, the Purchase Price.
(ii) At the Closing, Purchaser shall (A) pay to Seller (or as
directed in writing by Seller) the balance of the Purchase Price, in the amount
of Two Hundred Sixty-Two Million Five Hundred and Forty-Eight Thousand Dollars
($262,548,000), subject to any apportionments and adjustments for which
provision is herein made, and (B) direct the Escrow Agent to deliver to Seller
the Escrow Funds.
1.3. Escrow Provisions. (a) Escrow Agent shall hold the Escrow Funds in
escrow in an interest-bearing account (or as otherwise agreed in writing by
Seller, Purchaser and Escrow Agent) in a New York Clearing House Bank or in a
nationally recognized "money-market fund" until the Closing or sooner
termination of this Agreement and shall pay over or apply the Escrow Funds in
accordance with the further provisions of this Section 1.3. If Purchaser shall
receive the interest earned on the Deposit, Purchaser shall pay all income
taxes owed in connection therewith. The employer identification number of
Purchaser is set forth on the signature page hereof. Escrow Agent shall not be
liable to Purchaser or Seller for loss occasioned by any deposit of the Escrow
Funds made in accordance with this Section 1.3.
(b) At the Closing, the Escrow Funds shall be paid by Escrow Agent to
Seller.
(c) Subject to, and following in compliance with, the provisions of
Section 1.3(e) below, Escrow Agent shall deliver to Seller the Escrow Funds
within ten (10) business days following Escrow Agent's receipt of Seller's
written demand ("Seller's Demand") for the Escrow Funds stating that Purchaser
has defaulted in the performance of Purchaser's obligation to purchase the Loan
under this Agreement or that Seller is entitled to use the Escrow Funds to
restore the Real Property as provided in Section 8.2(b) hereof (it being
understood and agreed that (i) Seller shall have no obligation to restore the
Real Property, and (ii) to the extent Seller uses all or any portion of the
Escrow Funds to restore the Real Property, Purchaser shall promptly pay to
Escrow Agent an amount equal to the Escrow Funds used to restore the Real
Property.) Simultaneously with Seller's delivery of Seller's Demand to Escrow
Agent, Seller shall deliver a copy of Seller's Demand to Purchaser.
(d) Subject to, and following in compliance with, the provisions of
Section 1.3(e) hereof, Escrow Agent shall deliver to Purchaser the Escrow Funds
within ten (10) business days following Escrow Agent's receipt of Purchaser's
written demand ("Purchaser's Demand") therefor stating that (i) the Closing did
not occur on the Scheduled Closing Date or on such later date to which the
Closing shall have been adjourned, as a result of Seller's inability to
transfer the Loan in accordance with the provisions of this Agreement, or (ii)
Seller is otherwise in material breach under this Agreement. Simultaneously
with Purchaser's delivery of Purchaser's Demand to Escrow Agent, Purchaser
shall deliver a copy of Purchaser's Demand to Seller.
(e) If Escrow Agent receives either Seller's Demand or Purchaser's
Demand pursuant to and in accordance with Section 1.3 (c) or (d) hereof, as the
case may be, then, in such event, prior to releasing the Escrow Funds, Escrow
Agent shall deliver a copy of Seller's Demand or Purchaser's Demand, as the
case may be, to the non-demanding party within five (5) business days after
receipt thereof by Escrow Agent. If Escrow Agent shall have complied with the
preceding sentence and shall not have received a written objection to the
proposed payment before the tenth (10th) business day following the date of
Seller's Demand or Purchaser's Demand, as the case may be, then, in such event,
Escrow Agent is hereby authorized and directed to make the payment set forth in
such demand. If Escrow Agent shall have received a written objection from
either party before such payment, then, in such event, Escrow Agent shall
continue to hold the Escrow Funds until otherwise directed by written
instructions from both of the parties hereto or by a final judgment of a court
of competent jurisdiction; provided, however, that Escrow Agent shall have the
right, at any time, to deposit the Escrow Funds with any court of competent
jurisdiction and thereby be relieved and discharged of any further obligations
under this Agreement. Escrow Agent shall give written notice of any such
deposit to Seller and Purchaser. Escrow Agent shall be entitled to rely upon
the authenticity of any signature and/or the validity of any writing received
by Escrow Agent pursuant to, or otherwise relating to, this Agreement.
(f) The parties acknowledge and agree that (4) Escrow Agent is acting
solely as a stakeholder at their request and for their convenience, (ii) Escrow
Agent shall not be deemed to be the agent of either of the parties hereto
(provided, however, that the parties hereto acknowledge and agree that (x)
Purchaser, by its execution and delivery of this Agreement, has pledged to
Seller the Escrow Funds as security for Purchaser's obligations hereunder, (y)
Purchaser hereby grants to Seller a first priority lien on, and security
interest in, the Escrow Funds, and (z) Escrow Agent shall be deemed to be
Seller's agent for the purposes of such pledge and grant of security interest,
(iii) any conflict of interest that may exist because of the Escrow Agent's
representation of Seller hereunder is hereby waived, and (iv) Escrow Agent
shall not be liable to either of the parties hereto for any act or omission on
its part as Escrow Agent. Seller and Purchaser, jointly and severally, shall
indemnify, defend and hold harmless Escrow Agent from and against any and all
losses, liabilities, costs, claims, damages or expenses (including, without
limitation, reasonable attorneys' fees and costs) which may be incurred or
suffered by Escrow Agent in connection with the performance of Escrow Agent's
duties hereunder other than on account of Escrow Agent's own direct gross
negligence or willful misconduct.
ARTICLE II
CONDITIONS PRECEDENT TO
OBLIGATIONS OF PURCHASER
2.1. Conditions Precedent for Purchaser's Obligations. The following are
conditions precedent to Purchaser's obligation to purchase the Loan pursuant to
the terms of this Agreement:
(a) Subject to the terms of Section 5.2 hereof, on the Closing Date
(as hereinafter defined), the representations, covenants and warranties of
Seller set forth in Section 5.1 hereof shall be true, accurate and complete in
all material respects as of the date hereof and as of the Closing Date as
though repeated and made anew as of the Closing Date (except that the
representation in Section 5.1(j) hereof, shall not be deemed repeated and made
anew as of the Closing Date); provided, however, that (i) if any fact and/or
information is the subject of or described in Purchaser's Preliminary Notice
(as defined in Section 8.3 hereof), then, in such event, Seller shall not be
deemed to be in breach (for any purpose under this Agreement) of its
representations, covenants and warranties set forth in Section 5.1 hereof if
any such fact and/or information would form the basis of such a breach, (ii) if
any act or omission of the Borrower (or its direct or indirect partners or
their respective affiliates) or condition with respect to the Borrower (or its
direct or indirect partners or their respective affiliates), in either case not
at the direction or consent of JPMIM or Seller, would result in any breach of
any of the representations, covenants or warranties of Seller set forth in
Section 5.1 hereof when repeated and made anew as of the Closing Date, then, in
such event, Seller shall not be deemed in breach (for any purpose under this
Agreement) of its representations, covenants and warranties set forth in
Section 5.1 hereof, and/or (iii) if after the date of this Agreement Seller
takes any action which is expressly permitted by the terms of this Agreement
(other than a general provision to act in accordance with past practices) and
such action would result in any breach of the representations, covenants or
warranties of Seller set forth in Section 5.1 hereof when repeated and made a
new as of the Closing Date, then, in such event, Seller shall not be deemed in
breach (for any purpose under this Agreement) of such representations,
covenants and warranties set forth in Section 5.1 hereof by reason of such
action;
(b) Seller shall have materially performed and observed all of its
obligations under this Agreement; and
(c) At the Closing, Seller shall execute and deliver, or cause to be
executed and delivered, the documents and other agreements and instruments
required to be delivered by or on behalf of Seller pursuant to the terms of
this Agreement.
2.2. Termination Option. For the purposes of this Agreement, the term
"Termination Option" shall mean the termination of this Agreement by Purchaser
pursuant to the terms of Section 6.2(f) hereof, Section 7.2, Section 8.3 or
Section 10.1 hereof, which Termination Option shall be exercised by the giving
of a written notice of termination from Purchaser to Seller and Escrow Agent.
Upon the exercise of the Termination Option by Purchaser, Purchaser shall be
entitled to the Escrow Funds, subject to the provisions of Section 1.3 hereof
and Section 8.2 hereof, and this Agreement shall be deemed terminated and of no
further force or effect and neither party hereto shall have any further rights
or obligations hereunder or thereunder, provided, however, that (i) the
indemnities contained in Section 4.2, Section 8.2 and Section 11.2 hereof, and
(ii) the terms of the Confidentiality Agreement (as hereinafter defined), shall
survive any such termination.
2.3. Waiver of Conditions. The foregoing conditions are for the benefit
only of Purchaser and Purchaser may, in its sole discretion, waive in writing
any or all of such conditions and close under this Agreement without any
abatement of, or credit against, the Purchase Price. In addition, any act or
omission of Purchaser which causes a condition to the performance of
Purchaser's obligations hereunder not to be fulfilled shall not constitute the
non-fulfillment of such condition.
ARTICLE III
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
3.1. Conditions Precedent for Seller's Obligations. The following are
conditions precedent to Seller's obligation to sell the Loan pursuant to the
terms of this Agreement:
(a) Purchaser shall have paid in full the Purchase Price and
otherwise performed, in all but immaterial respects, all of its covenants and
agreements contained herein which are required to be performed by it on or
prior to the Closing;
(b) On the Closing Date, the representations, covenants and
warranties of Purchaser set forth in Section 4.1 hereof shall be true, accurate
and complete in all material respects as of the date hereof and as of the
Closing Date, as though repeated and made anew as of the Closing Date; and
(c) At the Closing, Purchaser shall execute and deliver, or cause to
be executed and delivered, the documents and other agreements and instruments
required to be delivered by or on behalf of Purchaser pursuant to the terms of
this Agreement.
3.2. Waiver of Conditions. The foregoing conditions are for the benefit
only of Seller and Seller may, in its sole discretion, waive in writing any or
all of such conditions and close under this Agreement without any increase in
the Purchase Price. In addition, any act or omission of Seller which causes a
condition to the performance of Seller's obligations hereunder not to be
fulfilled shall not constitute the non-fulfillment of such condition.
ARTICLE IV
PURCHASER'S REPRESENTATIONS,
WARRANTIES AND COVENANTS
4.1. Purchaser's Representations and Warranties. Purchaser represents,
warrants, covenants and agrees with Seller as follows:
(a) Purchaser is a limited partnership, duly organized, validly
existing and in good standing under the laws of the state of Delaware.
(b) Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and has duly executed and delivered this
Agreement, and all of the obligations of Purchaser hereunder constitute, and,
upon execution and delivery by Purchaser of the other documents and instruments
to be executed and delivered by Purchaser pursuant hereto, all the obligations
of Purchaser thereunder will constitute, legal, valid and binding obligations
of Purchaser, enforceable against it in accordance with their respective terms.
(c) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby, and the performance of or compliance
by Purchaser with the terms and conditions of this Agreement will not (i)
conflict with or violate any provisions of Purchaser's organizational
documents, (ii) conflict with or violate or result in a breach of any of the
provisions of, or constitute a default under, any agreement or instrument to
which Purchaser is a party or by which it or any of its property is bound,
(iii) conflict with or violate any judgment, order, writ, injunction or decree
binding on Purchaser or any of its property, or (iv) conflict with or violate
any law, rule, regulation or ordinance applicable to Purchaser or any of its
property.
(d) No approval, authorization, order, license or consent of, or
registration or filing with, any governmental authority or regulatory body is
required in connection with the execution and delivery by Purchaser of this
Agreement and the consummation by Purchaser of the transactions contemplated
hereby.
(e) There is no litigation, claim or proceeding pending or, to
Purchaser's knowledge, threatened in writing against Purchaser in any court or
before any governmental agency or instrumentality that, if determined adversely
to Purchaser, would materially and adversely affect the enforceability of this
Agreement or any other document or instrument executed or to be executed in
connection herewith or the ability of Purchaser to perform its obligations
hereunder or consummate the transactions contemplated hereby.
(f) Purchaser is solvent and has not filed, nor has there been filed
against it, nor do grounds exist for the filing of, any voluntary or
involuntary petition in bankruptcy or insolvency and no receiver or trustee or
similar custodian has been appointed with respect to its property.
(g) Purchaser (i) has available to it sufficient funds with which to
pay the Purchase Price and to meet its other financial obligations to Seller
under this Agreement, and (ii) is not in default under the terms of that
certain Credit Agreement, dated as of July 23, 1998, among Purchaser, Reckson
Morris Operating Partnership, L.P., the Institutions from time to time party to
the Credit Agreement as Lenders and The Chase Manhattan Bank, as Arranger, Book
Manager and Administrative Agent, UBS AG, New York Branch as Arranger, Book
Manager and Syndication Agent, and PNC Bank, National Association as
Documentation Agent. The obligations of Purchaser hereunder are not subject to
any contingency for the benefit of Purchaser regarding the availability of
financing (whether secured or unsecured) to provide funds to Purchaser to
consummate the transactions contemplated hereby.
(h) Purchaser is a sophisticated investor and has made its own
decision to purchase the Loan in accordance with and subject to the terms and
conditions of this Agreement. Purchaser has adequate information concerning the
business and financial condition of the Borrower and the Real Property to make
an informed decision regarding the purchase of the Loan and has independently
and without reliance upon Seller, and based on such information as Purchaser
has deemed appropriate, made its own analysis and decision to enter into this
Agreement. Purchaser acknowledges that the consideration paid pursuant hereto
for the purchase of the Loan may differ both in kind and amount from any
payments or distributions which may ultimately be received with respect to the
Loan. Purchaser acknowledges that the Loan may have limited or no liquidity and
that it has the financial wherewithal to own the Loan for an indefinite period
of time and that it is assuming and bearing the credit risk of full or partial
loss of all amounts hereunder and all other credit risk which is inherent in
the Loan, and all collectibility risks associated therewith. Purchaser
represents and warrants that Purchaser has made its own independent evaluation
and investigation of the business and financial condition of the Borrower (and
its direct and indirect partners and their respective affiliates) and the
organizational structure of the Borrower (and its direct and indirect partners
and their respective affiliates) and acknowledges and agrees that Purchaser's
satisfaction with such matters shall not constitute or be deemed to constitute
a condition to Purchaser's obligations hereunder. Purchaser further
acknowledges and agrees that if, at any time, the Borrower (or its direct or
indirect partners or their respective affiliates) commences or institutes any
case, proceeding or other action (i) seeking relief on the Borrower's behalf as
debtor, or to adjudicate the Borrower a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to the Borrower or its debts under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, or (ii) seeking
appointment of a receiver, trustee, custodian or other similar official for the
Borrower or for all or any substantial part of its property (or any such case,
proceeding or action referred to in clause (i) and/or clause (ii) is commenced
or instituted against the Borrower), then, in any such event, such matter or
fact shall not constitute or be deemed to constitute a condition to Purchaser's
obligations hereunder.
(i) As of the Closing Date, Purchaser shall have inspected the Loan
Documents and the Real Property and, as a result of such inspection, shall be
fully familiar with the Loan Documents and the Real Property, the present
physical and financial condition of the Real Property, the present state of
repair of the Real Property and title to the Real Property. Subject to the
terms of this Agreement, at the Closing, Purchaser shall accept the Loan, the
Loan Documents and the Real Property "AS IS", "WHERE IS" AND "WITH ALL FAULTS"
on the Closing Date, without any reduction in the Purchase Price for any change
in the physical or financial condition occurring from and after the date
hereof. Purchaser acknowledges and agrees that (i) neither Seller's Partners
(as hereinafter defined), J.P. Morgan Investment Management Inc. ("JPMIM"),
Insignia/ESG, Inc. ("ESG"), NBB Real Estate, Inc. ("NBB") and their respective
officers, directors, shareholders, direct or indirect partners, employees,
agents, brokers, representatives and affiliates of any of the foregoing
(collectively, the "Seller Parties") nor any other person (other than Seller as
expressly set forth and limited herein) has made any representation, warranty
or covenant, express or implied, with respect to Loan, the Borrower, the Loan
Documents or the Real Property, the fitness, merchantability, suitability or
adequacy of the Real Property for any particular purpose, any environmental
condition at or with respect to the Real Property, the site or physical
conditions applicable to or with respect to the Real Property, the zoning
regulations or other governmental requirements applicable to or with respect to
the Real Property, the Leases (as hereinafter defined), title to the Real
Property or any other matters affecting the Loan or the use, occupancy,
operation, ownership or condition of or with respect to the Real Property, and
(ii) neither the Seller Parties nor any other person will have, or be subject
to, any liability to Purchaser or any other person resulting from the
distribution to Purchaser, or Purchaser's use of, any information pertaining to
the Loan which is not specifically set forth in this Agreement. Without
limiting the generality of the foregoing, Purchaser further acknowledges and
agrees that (x) Purchaser has reviewed and it is fully familiar with the
current state of title of the Real Property and no representation, warranty,
covenant or indemnity has been made with respect thereto, and (y), except as
expressly set forth herein, no representation, warranty, covenant or indemnity
has been made or will be given to Purchaser or any other person in respect of
any environmental liability with respect to any dangerous, toxic or hazardous
wastes, materials, pollutants or substances ("Hazardous Materials"), as such
terms are defined in federal, state and/or local environmental laws and
regulations, including, without limitation, the United States Comprehensive
Environmental Response, Compensation and Liability Act 1980, as amended
(collectively, "Environmental Laws"). Purchaser also acknowledges and agrees
that in no event whatsoever shall any Seller Parties have any liability to
Purchaser, or otherwise, with respect to Hazardous Materials affecting the Real
Property or Environmental Laws. Purchaser also acknowledges that as of the
Closing Date Purchaser shall have had sufficient opportunity to conduct such
investigations of and with respect to the Loan as it has deemed necessary and
advisable. Purchaser's representations set forth in this clause (i) shall
survive the Closing.
(j) Except as specifically set forth in this Agreement, Purchaser has
not been induced by, and has not relied upon, any representations, warranty or
statement made by any Seller Parties or any person representing any Seller
Parties. Purchaser's representations set forth in this clause (j) shall survive
the Closing.
(k) For the purposes of this Agreement, the term "Seller's Partners"
shall mean any partner in Seller or any partner in or shareholder of any such
partner or any other direct or indirect partner or shareholder which is an
owner of any direct or indirect legal or beneficial interest in the Seller or
any affiliate of any of the foregoing, whether such person or entity is, was or
shall be one of the Seller's Partners (and its or his successors and assigns),
or whether such person is known, unknown, disclosed or undisclosed, or is, was
or shall be a direct or indirect partner, former partner, employee, officer,
director, attorney-in-fact or agent of Seller or any of Seller's Partners (and
each of his or its successors and assigns), or who or which has, had or shall
have a direct interest in Seller or any of Seller's Partners, in each case only
to the extent relating to the transactions contemplated by the Loan Documents.
4.2. Covenants of Purchaser. From and after the date hereof until the
Closing, Purchaser shall (i) not take any action, grant any waiver or release,
or expressly consent to or approve any action, with respect to the Loan, the
Borrower or the Loan Documents or any of the other documents held by Seller in
connection therewith or in connection with the Real Property which would have
the effect of impairing or diminishing the value thereof or the validity,
enforceability, perfection or priority of the liens of any Loan Document (it
being understood and agreed that Purchaser shall indemnify, defend and hold
harmless Seller and the Seller Parties from and against any and all Liabilities
(as hereinafter defined) arising out of any breach by Purchaser of the terms of
this Section 4.2(i), which indemnity, defense and hold harmless shall survive
the Closing or earlier termination of this Agreement), (ii) deliver to Seller
copies of all notices given or received by Purchaser in connection with the
Real Property and/or the Loan, and (iii) be entitled to contact any contractor,
subcontractor, materialman, architect, engineer or consultant providing
services or otherwise performing work on the Real Property, provided that each
and every such contact shall have been coordinated in advance with Seller's
representative, Ray Quartararo.
ARTICLE V
SELLER'S REPRESENTATIONS,
WARRANTIES AND COVENANTS
5.1. Seller's Representations and Warranties. Except as set forth on
Schedule "1" annexed hereto and made a part hereof, Seller, hereby represents,
warrants, covenants and agrees with Purchaser as follows:
(a) Seller is a limited partnership, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and has duly executed and delivered this
Agreement, and all of the obligations of Seller hereunder constitute, and, upon
execution and delivery by Seller of the other documents and instruments to be
executed and delivered by Seller pursuant hereto, all the obligations of Seller
thereunder will constitute, legal, valid and binding obligations of Seller,
enforceable against it in accordance with their respective terms.
(c) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby, and the performance of or compliance
by Seller with the terms and conditions of this Agreement will not (i) conflict
with or violate any provisions of Seller's organizational documents, (ii)
conflict with or violate or result in a breach of any of the provisions of, or
constitute a default under, any agreement or instrument to which Seller is a
party or by which it or any of its property is bound, (iii) conflict with or
violate any judgment, order, writ, injunction or decree binding on Seller or
any of its property, or (iv) conflict with or violate any law, rule, regulation
or ordinance applicable to Seller or any of its property.
(d) No approval, authorization, order, license or consent of, or
registration or filing with, any governmental authority or regulatory body is
required in connection with the execution and delivery by Seller of this
Agreement and the consummation by Seller of the transactions contemplated
hereby.
(e) There is no litigation, claim or proceeding pending or, to
Seller's knowledge threatened in writing against Seller in any court or before
any governmental agency or instrumentality that, if determined adversely to
Seller, would materially and adversely affect the enforceability of this
Agreement or any other document or instrument executed or to be executed in
connection herewith or the ability of Seller to perform its obligations
hereunder or consummate the transactions contemplated hereby.
(f) Seller is solvent and has not filed, nor has there been filed
against it, nor do grounds exist for the filing of, any voluntary or
involuntary petition in bankruptcy or insolvency and no receiver or trustee or
similar custodian has been appointed with respect to its property.
(g) Seller heretofore has made available for Purchaser's inspection
the Loan Documents and certain other documents and instruments executed and
delivered from time to time in connection with the Loan as more particularly
described on Exhibit "A-1" annexed hereto and made a part hereof (collectively,
the "Ancillary Documents").
(h) Seller has made available for Purchaser's inspection true,
correct and complete copies of the Loan Documents and the Ancillary Documents.
Except as set forth on Exhibit "A" and "A-1" and except as provided in the Loan
Documents and/or the Ancillary Documents, the Loan Documents and the Ancillary
Documents have not been amended, modified or otherwise changed in writing by
Seller, and there are no other written documents, instruments or agreements
material to the understanding of the current status of the Loan which (i) were
signed by or on behalf of Seller, (ii) are binding on Seller, and (iii) affects
the Borrower's rights and obligations under the Loan. Annexed hereto and made a
part hereof as Exhibit "A-2" is a true, correct and complete copy of Seller's
approval of the Approved Budget in effect as of the date hereof for 1999. The
Mortgage has not been satisfied, or, to Seller's knowledge, subordinated in
writing by Seller. Seller has not waived in writing any of its material rights
under, or otherwise consented in writing to any material departure from, the
terms of the Loan Documents or the Ancillary Documents.
(i) Seller is the sole legal and beneficial owner of the Loan, free
and clear of any lien, claim, security interest, option, equity or other charge
or encumbrance of any nature whatsoever. Seller has not endorsed, granted,
assigned, transferred or otherwise pledged, encumbered or set over the Note to
any other person.
(j) To Seller's knowledge, Seller has not received from Borrower
written notice of any setoff, counterclaim, lender liability claim or defense,
or any right of rescission with respect to the Loan. To Seller's knowledge,
Seller has not received from Borrower written notice of any adverse claims
asserted with respect to the enforceability or priority of the Loan Documents
or the Ancillary Documents.
(k) No claims have been made by Seller under its lender's title
insurance policies listed on Exhibit "A-1" hereto (collectively, "Lender's
Title Policy"). Seller is the owner of Lender's Title Policy. To Seller's
knowledge, Seller has not received written notice of any defenses by any title
insurer under Lender's Title Policy.
(l) The outstanding principal amount under the Note as of the date
hereof is $ 325,000,000 (the "Outstanding Principal Balance") and Outstanding
Debt Service Shortfalls (as defined in the Note) as of April 30, 1999 was
$88,214,754.06 (including the OID Amount). No Additional Interest (as defined
in the Note) has been paid. The OID Amount (as defined in the Note) as of the
date hereof is $26,764,990. Except for the accounts listed on Schedule "2"
annexed hereto and made a part hereof (collectively, the "Cash Collateral
Accounts") established pursuant to the Collateral Account Agreement listed on
Exhibit "A" hereto, there are no escrows or other deposits held by Seller under
the Loan Documents. The total balance in the Cash Collateral Accounts as of
March 31, 1999 was approximately $14,725,000.
(m) Annexed hereto and made a part hereof on Schedule "3" is a true,
complete and correct copy of the Approved Budget in effect as of the date
hereof for 1999.
(n) To Seller's knowledge, annexed hereto and made a part hereof on
Schedule "4" is a true, complete and correct list of all of the leases,
together with all amendments, modifications and supplements thereto and
guarantees thereof as of the date hereof (collectively and as amended, modified
and supplemented, the "Leases") for space at the Real Property (other than
subtenancies, if any, under the Leases) and true, correct and complete copies
of the Leases have been made available to Purchaser. To Seller's knowledge,
Schedule "4" annexed hereto and made a part hereof is a true, correct and
complete list of the security deposits held by the Borrower with respect to the
Leases, and the bank(s) and account number(s) where such security deposits are
maintained.
(o) To Seller's knowledge, all of the Leases are in full force and
effect (although Purchaser acknowledges and understands that certain Leases
have not commenced) and none of the Leases has been further modified, amended
or supplemented.
(p) To Seller's knowledge, (i) there are no pending summary
proceedings for the eviction of any tenant, (ii) there are no pending
proceedings or pending written claims by any tenant for offsets against rent or
additional rent or for damages or other redress, and (iii) no tenant has
delivered written notice to the Borrower, JPMIM or ESG for which such tenant is
currently disputing the amount of additional rent or escalation payments due
pursuant to such tenant's Lease.
(q) To Seller's knowledge, neither the Borrower, ESG nor JPMIM has
received written notice from any tenant claiming that the Borrower is in
default of any of its obligations under any Lease, which default has not been
cured.
(r) To Seller's knowledge, (i) neither JPMIM, ESG nor the Borrower
has sent any written notice to any tenant claiming that such tenant is in
default, which default remains uncured, and (ii) except as set forth on
Schedule "4" hereto, no tenant is (x) in default of the payment of monthly base
rent, or (y) otherwise in material breach of a material term of its Lease to
such an extent that a prudent landlord of a first class building similar to the
Real Property would seek to terminate such Lease as a result of such material
breach.
(s) To Seller's knowledge, except as set forth on Schedule "4"
hereto, there are no delinquencies in any rental payments due under any of the
Leases.
(t) To Seller's knowledge, Schedule "4" hereto includes a list of all
brokerage commissions, finder's fees or real estate agent's fees applicable to
the "Debevoise Lease", the "Schulte Lease", the "BNP Lease", the "Kramer Lease"
and the "Draft Worldwide Lease" (as such Leases are defined in Schedule "4"
hereto). To Seller's knowledge, Schedule "4" hereto includes a true, correct
and complete list of all brokerage agreements regarding the payment of
brokerage commissions, finder's fees or agent's fees applicable to the Leases
for which payment has not been made, and true, correct and complete copies of
such brokerage agreements have been made available to Purchaser.
(u) Seller is not a "foreign person" within the meaning of Section
1445 of the Internal Revenue Code, as amended.
(v) To Seller's knowledge, neither Seller nor the Borrower has
received notice of any condemnation or eminent domain proceeding pending or
threatened, in writing, against the Real Property or any part thereof.
(w) To Seller's knowledge, (i) Schedule "5" annexed hereto and made a
part hereof is a true, correct and complete list of all material service,
utility and maintenance contracts, together with all amendments, modifications
and supplements thereto (collectively and as amended, modified and
supplemented, the "Service Agreements"), and all construction contracts and
architect's and engineer's agreements (together with all amendments,
modifications and supplements thereto) relating to work being performed by the
Borrower at the Real Property (collectively and as amended, modified and
supplemented, the "Construction Agreements"), (ii) the Service Agreements and
the Construction Agreements are in full force and effect, without material
default by (or notice of material default to) any party, and (iii) true,
correct and complete copies of the Service Agreements and the Construction
Agreements have been made available to Purchaser. Schedule "5" hereto sets
forth, to Seller's knowledge, the percentage of completion of work under the
Construction Contracts, amounts paid and balance due thereunder and any
retainages with respect thereto, all as of the date hereof.
(x) To Seller's knowledge, Seller has provided to Purchaser a copy of
all environmental reports with respect to the Real Property which are in the
possession or control of Seller (collectively, the "Environmental Reports"),
excluding, however, those Environmental Reports restricted by confidentiality
arrangements (and Seller shall notify Purchaser of the date and company which
prepared any such reports as long as such information is not confidential).
(Purchaser acknowledges and agrees that Purchaser, its affiliates, agents,
employees, representatives, contractors and/or its consultants shall not use or
rely on the Environmental Reports except as expressly permitted therein). To
Seller's knowledge, except as set forth in the Environmental Reports neither
Seller, JPMIM nor ESG has received any written notice from any governmental or
quasi-governmental authority of any material violation or liability against the
Real Property under Environmental Laws.
(y) To Seller's knowledge, Schedule "8" annexed hereto and made a
part hereof sets forth all insurance policies maintained by the Borrower for
the benefit of Seller covering the Real Property, the limits of coverage,
deductible amounts and expiration dates of such policies, and such insurance
policies are in full force and effect.
(z) To Seller's knowledge, except as set forth in the Loan Documents
or the Ancillary Documents, neither Seller, JPMIM nor ESG has made any written
arrangements on behalf of Seller with the Borrower or any person listed on
Schedule "9" annexed hereto and made a part hereof (the "Borrower Affiliates")
to pay the Borrower or any Borrower Affiliates any fees, commissions or other
sums, which have not been paid .
(aa) To Seller's knowledge, (i) a true, correct and complete copy of
the Rosman Ground Lease (as defined in Schedule "10" annexed hereto and made a
part hereof) has been made available to Purchaser, (ii) the Rosman Ground Lease
is in full force and effect, and (iii) no written notice has been sent to
Seller or the Borrower claiming that the Borrower is in default under the
Rosman Ground Lease, which default remains uncured. Seller shall request that
the landlord under the Rosman Ground Lease execute an estoppel certificate in
the form required under the Rosman Ground Lease (a "Rosman Estoppel"), it being
understood and agreed that (A) Seller shall use reasonable efforts to obtain
the Rosman Estoppel (provided, however, that Seller shall have no obligation to
commence any action or proceeding or to expend any amounts (other than de
minimis amounts) to obtain a Rosman Estoppel), (B) the execution and/or
delivery of a Rosman Estoppel shall not be a condition to the Closing, (C) if
as of the Closing Date, Seller is unable to obtain a Rosman Estoppel, dated
within 37 days of the Scheduled Closing Date, as adjourned by Seller, which is
not inconsistent, in any material respect, with the representations and
warranties set forth in subclauses (i) (ii) and (iii) of this clause (aa) (a
"Qualified Rosman Estoppel"), then, in such event, (x) Seller shall have the
right, at its option, to adjourn the Closing for up to 45 days in the aggregate
(within the 45-day period referred to in section 6.2(f) below) to obtain a
Rosman Estoppel, and (y) if Seller has not obtained a Qualified Rosman Estoppel
prior to the Closing, as may be adjourned, Purchaser and Seller shall
consummate the transaction contemplated hereby subject to and in accordance
with the terms of this Agreement, including, without limitation Seller's
obligation to make the delivery in Section 6.2(o) hereof; provided, however,
that if and so long as after the Closing Date (I) Purchaser is using reasonable
commercial efforts to obtain a Qualified Rosman Estoppel, and (II) Purchaser
has expended $250,000 of its own funds to obtain a Qualified Rosman Estoppel,
then, in such event, Purchaser shall have the right, from time to time until
the first anniversary of the Closing Date, by written notice to Seller and
Escrow Agent, to make a claim against the Closing Escrow Fund for up to
$500,000 (the "Rosman Estoppel Amount") in the aggregate to fund the cost of
obtaining a Qualified Rosman Estoppel; provided, further, that Purchaser shall
have no further claim for any portion of the Rosman Estoppel Amount if
Purchaser (or its Affiliate) obtains a Qualified Rosman Estoppel or obtains
non-recourse financing secured by either its interest in the Loan or the Real
Property and if, on such first anniversary, Purchaser shall not have obtained a
Qualified Rosman Estoppel and is continuing to use reasonable commercial
efforts to obtain a Qualified Rosman Estoppel, then the remaining Rosman
Estoppel Amount shall be released from the Closing Escrow Fund to Purchaser,
otherwise the remaining Rosman Estoppel Amount shall be released in accordance
with the terms of Section 5.4 hereof.
(bb) To Seller's knowledge, (i) Takeshi Saeki is the owner of the
Share (as hereinafter defined) by assignment from Akira Osawa, and (ii) annexed
hereto and made a part hereof as Exhibit "H-2" is a true, correct and complete
copy of (x) the Certificate of Amendment of the Certificate of Incorporation of
919T Corp. relating to the Share, (y) the Subscription Agreement relating to
the Share executed by Akira Osawa, and (z) the By-Laws of 919T Corp. as in
effect on September 21, 1993, and to Seller's knowledge, such Subscription
Agreement and By-Laws have not been amended, modified or supplemented in any
material respect.
As used in this Agreement, the words "Seller's knowledge" or words of
similar import shall be deemed to mean, and shall be limited to, the actual (as
distinguished from implied, imputed or constructive) knowledge of Donald
Rederscheid or Kazuyuki Nishiura, individuals who have been charged with
management responsibility for Seller with respect to the Loan, the Loan
Documents and the Real Property without such person having any obligation to
make an independent inquiry or investigation, it being understood and agreed
that neither individual shall have any liability or obligation hereunder
whatsoever.
5.2. Breaches of Representations and Warranties. Notwithstanding anything
contained herein to the contrary, if the Closing occurs, any claim that
Purchaser may have that there has been a breach of any representation or
warranty contained herein shall be deemed forever waived by Purchaser (and
shall be deemed waived for the purposes of Section 2.1(a) hereof and Section
5.4 hereof) if such breach is known to Purchaser on or before the Closing and
an allegation of such breach is not given to Seller in writing on or prior to
the Closing Date. For purposes of this Agreement, a breach shall be "known" to
Purchaser only if Richard Conniff, Todd Rechler, Gregg Rechler, Jason Barnett,
Tod Waterman (collectively, the "Knowledge Persons" and individually, a
"Knowledge Person") shall have (x) actual knowledge of such breach, and/or (y)
actual knowledge of any information which is the basis of such breach; it being
understood and agreed that supplementing the foregoing, each of Knowledge
Person shall be deemed to have actual knowledge of (A) all of the documents,
instruments, agreements or other materials set forth on Schedule "10" hereto
(collectively and, subject to the terms of Section 11.20 hereof, as the same
may be amended, modified or supplemented from time to time prior to the
Closing, the "Review Materials" and all information contained therein) to the
extent held as contemplated by the terms of Section 11.20 hereof, and (B) all
written reports or other written materials prepared by Fried, Frank, Harris,
Shriver & Jacobson LLP or Ernst & Young LLP and furnished to Purchaser or its
affiliates relating to the Loan, the Real Property and/or the transactions
contemplated hereby, and all information contained therein. The parties hereto
acknowledge and agree that no Knowledge Person shall have any liability
hereunder whatsoever.
5.3. Covenants of Seller as to the Real Property and Loan. (a) Except as
set forth on Schedule "6" annexed hereto and made a part hereof (which sets
forth actions Seller shall be entitled to take notwithstanding any limitations
set forth in this Agreement) or as may be expressly permitted hereby, so long
as Purchaser is not in default of any of the terms, covenants or conditions on
Purchaser's part to be observed or performed, Seller shall not, at any time
after the date hereof and prior to the Closing, without Purchaser's prior
written consent, which consent, in the case of clauses (i), (iii), (iv), (vi)
and (viii) below, shall not be unreasonably withheld, delayed or conditioned,
(i) consent to the Borrower entering into any new service contracts which
cannot be cancelled, without cost to the Borrower (other than de minimis
amounts) on not more than thirty (30) days notice or construction agreements,
(ii) release the Borrower or any portion of the Real Property from the lien of
the Mortgage, (iii) consent to the Borrower amending, modifying, terminating or
supplementing any Lease, (iv) consent to the Borrower amending, modifying or
supplementing any Service Agreement or Construction Agreement in any material
respect, (v) forgive, waive, reduce or compromise any of the indebtedness
evidenced or secured by the Loan Documents, nor grant any waiver with respect
to any obligation thereunder or under the Ancillary Documents, (vi) modify,
amend or supplement the Approved Budget, (vii) terminate, cancel, modify,
amend, rescind or supplement the Loan Documents or the Ancillary Documents, or
(viii) consent to the Borrower entering into any new lease of any portion of
the Real Property; provided, however, that notwithstanding the foregoing to the
contrary, Seller's covenants set forth in Section 5.3 hereof shall terminate
and shall be of no further force or effect as of the Covenant Termination Date
(as hereinafter defined), but following the Covenant Termination Date, Seller
shall continue to service and deal with the Loan, the Real Property and the
Borrower in accordance with the Approved Budget and otherwise in a reasonably
prudent manner in accordance with past practices, it being understood and
agreed that supplementing the foregoing proviso, following the Covenant
Termination Date and prior to the Closing, Seller (or JPMIM on Seller's or the
Borrower's behalf) shall have the right (but not the obligation) to take any
action (including, without limitation, make any expenditure or modify the
Approved Budget) or refrain from taking any action in the case of an emergency
or which, in Seller's reasonable judgment, either would increase the value of
the Loan and/or the Real Property. For the purposes of this Agreement, the term
"Covenant Termination Date" shall be (I) with respect to the covenants in
clauses (i), (iii), (iv), (vi) and (viii) above, 60 days, and (II) with respect
to the covenants in clauses (ii), (v) and (vii) above, 120 days, in either
case, following the later to occur of (x) the Scheduled Closing Date (as
hereinafter defined), or (y) such later date as Seller shall have adjourned the
Closing pursuant to the terms of this Agreement.
(b) Between the date hereof and the Closing Date, so long as
Purchaser is not in default of any of the terms, covenants or conditions on
Purchaser's part to be observed or performed, Seller shall promptly deliver to
Purchaser copies of all material notices given or received by Seller with
respect to the Loan and the Real Property, including, without limitation, any
notice from the Borrower (and Seller shall request, within two (2) business
days following the date hereof, that JPMIM and ESG forward to Seller any such
notices received by them).
(c) Subject to the terms of Section 5.3(a) hereof, between the date
hereof and the Closing Date, Seller shall continue to service and deal with the
Loan and the Borrower in accordance with the Approved Budget and otherwise in
accordance with its prior practices.
(d) Seller represents to Purchaser that Seller has been advised by
JPMIM and ESG that each such party shall be available to be retained by
Purchaser in their respective capacities as asset manager and managing and
leasing agent for a period of at least thirty days following the Closing,
subject to the reasonable negotiation of market terms for providing such
services.
(e) Seller shall request that the Borrower execute and deliver on or
before the Closing an estoppel certificate in the form annexed hereto and made
a part hereof as Exhibit "B", it being understood and agreed that the execution
and delivery by Borrower of an estoppel certificate shall not constitute or be
deemed to constitute a condition to Purchaser's obligations hereunder.
(f) Without limiting the generality of the foregoing, until the
Closing, Seller shall cause the insurance policies and the insurance coverages
set forth on Schedule "8" hereto (or policies and coverages substantially
similar thereto) to remain in full force and effect.
5.4. Survival of Representations and Warranties; Holdback. The
representations, warranties and covenants of Seller set forth in Section 5.1
hereof shall not merge into any instrument of assignment or transfer delivered
at the Closing, and shall survive the Closing for a period of one (1) year (the
"Survival Expiration Date"); provided, however, that notwithstanding anything
contained herein to the contrary, (a) any allegation of a breach of any
representation, warranty or covenant shall be subject to and limited by the
terms of Section 5.2 hereof, (b) subject to and limited by the terms of this
Section 5.4 and Section 5.2 hereof, Purchaser shall not be entitled to obtain
any recovery on account of any breach of any representation, warranty or
covenant until the aggregate losses (excluding consequential damages but
including any net diminution in the value of the Loan (or, after Closing, the
Real Property if Purchaser or its Affiliate (as hereinafter defined) acquires
the Real Property)) incurred by Purchaser on account of all breaches of
representations and warranties by Seller under Section 5.1 hereof exceeds an
amount (the "Representations Threshold Amount") equal to Two Hundred and Fifty
Thousand Dollars ($250,000), less any amounts expended by Purchaser from its
own funds pursuant to the terms of clause (II) in Section 5.1(aa) hereof, and
(c) subject to and limited by the terms of Section 5.4 and Section 5.2 hereof,
Seller's liability at any time with respect to any breach of any representation
or warranty shall be limited to the amount of the Closing Escrow Fund (as
hereinafter defined) then being held by Escrow Agent. At the Closing, a portion
of the Purchase Price, in the amount of Ten Million Dollars ($10,000,000),
shall be retained by the Escrow Agent (as such amount may be reduced from time
to time, the "Closing Escrow Fund"), to be held by Escrow Agent in escrow
subject to and in accordance with the terms of this Section 5.4 and subject to
the terms of Section 1.3(f) hereof. Escrow Agent shall hold the Closing Escrow
Fund in an interest-bearing account (or as otherwise agreed in writing by
Seller, Purchaser and Escrow Agent) in a New York Clearing House Bank or in a
nationally recognized "money-market fund." If prior to the sixth (6th) month
anniversary of the Closing Date, Purchaser has not given to Seller and Escrow
Agent written notice of losses (excluding consequential damages but including
any net diminution in the value of the Loan (or, after the Closing, the Real
Property if Purchaser or its Affiliate acquires the Real Property)) incurred by
Purchaser in excess of the Representations Threshold Amount on account of
breaches by Seller of representations and warranties under Section 5.1 hereof
or any of the other covenants and agreements of Seller under this Agreement
which survive the Closing, then, in such event, on the sixth (6th) month
anniversary of the Closing Date, Escrow Agent shall pay to Seller (without any
notice to Purchaser being required) the amount of Five Million Dollars
($5,000,000). If prior to the Survival Expiration Date, Purchaser has not given
to Seller and Escrow Agent written notice of losses (excluding consequential
damages but including any net diminution in value of the Loan (or, after
Closing, the Real Property if Purchaser (or its Affiliate acquires the Real
Property)) incurred by Purchaser in excess of the Representations Threshold
Amount on account of breaches by Seller of representations and warranties under
Section 5.1 hereof or any of the other covenants and agreements of Seller under
this Agreement which survive the Closing, then, in such event, on the Survival
Expiration Date, Escrow Agent shall pay to Seller (without any notice to
Purchaser being required) the balance of the Closing Escrow Fund. If at any
time prior to the Survival Expiration Date, (a) Purchaser has given to Seller
and Escrow Agent written notice (which notice Escrow Agent shall confirm
receipt of by written notice to Purchaser given within three (3) business days
of receipt) of losses (excluding consequential damages but including any net
diminution in the value of the Loan (or, after Closing, the Real Property if
Purchaser or its Affiliate acquires the Real Property) incurred by Purchaser in
excess of the Representations Threshold Amount on account of breaches by Seller
of representations and warranties under Section 5.1 hereof or any of the other
covenants and agreements of Seller under this Agreement which survive the
Closing (which notice from Purchaser shall include in reasonable detail the
basis for Purchaser's allegation and the calculation of Purchaser's losses),
and (b) within thirty-days after such notice, Purchaser shall have commenced an
action in a court of competent jurisdiction asserting a claim under this
Section 5.4, then, in such event, (x) if the Representations Threshold Amount
has been exceeded, with respect to each such claim by Purchaser, Escrow Agent
shall retain an amount (the "Escrow Retention Amount") equal to 120% of the
lesser of (A) the amount set forth in Purchaser's notice, or (B) the amount of
Purchaser's claim in Purchaser's action described in clause (b) of this
sentence, until the receipt of joint written instructions from Seller and
Purchaser directing the release of the Escrow Retention Amount or Escrow Agent
is otherwise directed by a court of competent jurisdiction to release the
Escrow Retention Amount, and (y) Escrow Agent shall pay to Seller the remaining
Closing Escrow Fund in excess of the Escrow Retention Amount in accordance
with, and at the times set forth in, the immediately preceding sentences as if
Purchaser had not given to Seller and Escrow Agent any written notice under
this Section 5.4 (without any notice to Purchaser being required). Escrow Agent
shall have the right, at any time, to deposit all or any portion of the Closing
Escrow Fund with a court of competent jurisdiction and thereby be relieved and
discharged of any further obligations under this Section 5.4. Escrow Agent
shall give written notice of any such deposit to Purchaser and Seller. The
provisions of this Section 5.4 shall survive the Closing. For the purposes of
this Section 5.4, the term "net diminution in value in the Loan" (or, after
Closing, the Real Property if Purchaser or its Affiliate acquires the Real
Property) shall be based on the facts and information known to Purchaser (as
defined in Section 5.2 hereof) as of the Closing compared with the actual facts
and information which result in the breach. For the purposes of the foregoing,
Seller and Purchaser acknowledge and agree that there is no need to determine
the actual value of the Loan (or the Real Property, as the case may be) as of
any point in time, but only the net reduction, if any, in value. The Purchaser
and Seller acknowledge and agree that the Closing Escrow Fund may be also used
for the breach of any covenants of Seller which survive the Closing, or the
purposes set forth in Section 5.1(aa), in each case, without regard to the
Representations Threshold Amount.
ARTICLE VI
CLOSING; EXPENSES AND APPORTIONMENTS
6.1. Place of Closing. (a) The consummation of the sale and purchase
contemplated in this Agreement (the "Closing") shall take place at the offices
of Gibson, Dunn & Crutcher LLP 200 Park Avenue, New York, New York 10166 at
10:00 A.M. on the tenth (10th) business day following the Due Diligence
Expiration Date (as hereinafter defined), (the "Scheduled Closing Date", the
date the Closing actually occurs being the "Closing Date").
(b) Subject to Seller's right to adjourn the Closing set forth in
this Agreement, each party hereto shall have the one-time right, upon written
notice to the other no later than two (2) business days prior to the Scheduled
Closing Date, to adjourn the Scheduled Closing Date for up to seven (7) days in
the aggregate.
6.2. Items to Be Executed or Delivered by Seller. At the Closing, Seller
shall execute, acknowledge (where appropriate) and deliver, or cause to be
executed, acknowledged (where appropriate) and delivered, the following:
(a) The Assignment and Assumption of Mortgage and section 275
Affidavit in the form of Exhibit "C" annexed hereto and made a part hereof.
(b) The original executed Note endorsed to Purchaser with the form of
endorsement set forth on Exhibit "D" annexed hereto and made a part hereof
(at the Closing, the Note also shall be registered in accordance with the
terms of Paragraph 17(q) of the Note); together with all original notes
listed on Exhibit "D-1" annexed hereto and made a part hereof.
(c) The Assignment and Assumption of Collateral Agreements in the
form of Exhibit "E" annexed hereto and made a part hereof.
(d) UCC-3 Financing Statements with respect to each UCC-1 Financing
Statements listed on Exhibit "A" hereto.
(e) An updated title report showing any title matters since the date
of Lender's Title Policy (it being understood and agreed that Purchaser's
satisfaction with such title report shall not constitute or be deemed to
constitute a condition to Purchaser's obligations hereunder).
(f) Promptly after the date hereof, Seller shall deliver to tenants
and Seller shall use its reasonable efforts to obtain an executed tenant
estoppel letter (a "Tenant Estoppel") from each of the tenants under the
Leases in the form which has been separately approved in writing by the
parties hereto; provided, however, that Seller shall have no obligation to
bring any action or proceeding or to incur any costs or expenses, other
than de minimis amounts, in connection therewith. Each Tenant Estoppel
shall be dated within thirty-seven (37) days of the Scheduled Closing
Date, as adjourned by Seller. Notwithstanding the foregoing to the
contrary, Seller's obligation to deliver Tenant Estoppels shall not be a
condition to Closing hereunder and Seller's failure to deliver any Tenant
Estoppels shall not diminish or otherwise affect Purchaser's obligations
hereunder, except that Seller's obligation to obtain Tenant Estoppels from
the tenants listed on Exhibit "F" annexed hereto and made a part hereof
shall be a condition to Purchaser's obligations hereunder; provided,
however, that in the event that Seller is unable to obtain such Tenant
Estoppels, then, in such event, Seller shall have the right, at its sole
option, to adjourn the Closing for up to 45 days in the aggregate (without
duplication of the 45 day period referred to in Section 5.11(aa)) to
obtain such Tenant Estoppels. If the Seller shall have failed to obtain
the required Tenant Estoppels which are a condition to the Closing
hereunder at or prior to Closing (as the same may be adjourned by Seller
hereunder), then, in such event, Purchaser, in its sole discretion, shall
have the right, exercised no later than the Scheduled Closing Date (as the
same may be adjourned by Seller or Purchaser as permitted hereunder),
either to (i) waive such condition with respect to Tenant Estoppels,
accept the Loan and consummate the Closing without abatement of, or credit
against, the Purchase Price and without liability on the part of Seller,
or (ii) exercise the Termination Option. To the extent that (i) any Tenant
Estoppel obtained from a tenant contains information which has been
represented by Seller in Seller's representations in Section 5.1 hereof
and such Tenant Estoppel is contrary to, in any material respects, such
representations, then, in such event, Seller shall be deemed to have
breached such representations but Seller shall be deemed to have satisfied
all of the conditions with respect to such Tenant Estoppel set forth in
this Section 6.2(f) notwithstanding such disagreement, or (ii) any Tenant
Estoppel obtained from the tenant does not contain information described
in the preceding subclause (i) and otherwise disagrees with any
information set forth in such Tenant Estoppel in the form sent to such
tenant (or otherwise sets forth additional information) Seller shall be
deemed to have satisfied all of the conditions with respect to such Tenant
Estoppel as set forth in this section 6.2(f) notwithstanding such facts or
information.
(g) A closing statement reflecting all of the financial aspects of
the transaction (the "Closing Statement") initialed by Seller.
(h) A non-foreign status affidavit in the form annexed hereto and
made a part hereof as Exhibit "G".
(i) The Assignment and Assumption of Share in the form of Exhibit "H"
annexed hereto and made a part hereof with respect to the share (the
"Share") of 919T Corp. held by Takeshi Saeki, together with (A) the
original Share, and (B) an executed stock power in the form of Exhibit
"H-1" hereto.
(j) Any and all documents and/or instruments reasonably necessary to
change (i) the name of any Cash Collateral Account from the name of Seller
to Purchaser, and (ii) the signatures of any Cash Collateral Account.
(k) An original of each Loan Document to the extent in Seller's
possession.
(l) A copy of each Lease (together with a copy of such information
related to the Leases which is reasonably necessary for an owner of the
Real Property to administer the Leases) to the extent in Seller's
possession.
(m) A certificate, dated as of the Closing Date, stating that the
representations and warranties of Seller set forth in Section 5.1 hereof
are true and correct in all material respects as of the Closing Date (with
appropriate modifications of such representations and warranties to
reflect any changes therein, including, without limitation, any changes
resulting from actions under Section 5.3 hereof) or identifying any
representation or warranty which is not, or no longer is, true and correct
in all material respects.
(n) Either (i) an opinion of Seller's outside counsel as to due
authorization, execution and delivery in customary form and subject to
customary exceptions, assumptions and qualifications, or (ii) if
Purchaser's counsel and Seller's counsel are unable to agree on the form
of the opinion referred to in clause (i) of this sentence, then, in such
event, (I) a certificate ("Seller's Authority Certificate") from Seller,
executed by the general partner in Seller and the limited partners in
Seller owning more than a majority-in-interest in Seller, consenting,
without condition, to the transactions contemplated by this Agreement,
together with (x) a certified copy of Seller's existing agreement of
limited partnership, which agreement of limited partnership shall be in
such a form that the consents, as provided herein, are sufficient to
authorize Seller to enter into the transactions contemplated by this
Agreement and consummate the transactions contemplated by this Agreement,
and (y) a legal opinion from Japanese counsel (or counsel from such other
jurisdiction which the limited partners are organized under, if not Japan)
as to due authorization, execution and delivery of Seller's Authority
Certificate by any limited partners in customary form and subject to
customary exceptions, assumptions and qualifications; and (II) a
Secretary's Certificate from an officer of the general partner in Seller
certifying to the adoption and non-revocation of resolutions duly
authorizing the transactions contemplated by this Agreement, together with
a certified copy of the general partner's certificate of incorporation and
bylaws and an incumbency certificate for the natural person signing on
behalf of the general partner.
(o) If Seller is unable to obtain a Qualified Rosman Estoppel as
provided in Section 5.1(aa) hereof, then, in such event, the letter in the
form annexed hereto and made a part hereof as Schedule "12".
(p) All other instruments and documents which may be reasonably
required to effect the transaction contemplated by this Agreement and
within Seller's control, provided that such instruments or documents may
be delivered without additional cost or liability to Seller (other than de
minimis amounts).
6.3. Items to Be Delivered or Executed by Purchaser. At the Closing,
Purchaser shall:
(a) Pay to Seller the Purchase Price, subject to the apportionments
and adjustments set forth herein, in the manner set forth in Section 1.2
hereof.
(b) Execute, acknowledge (where appropriate) and deliver, or cause to
be executed, acknowledged (where appropriate) and delivered, the
following:
(i) The Assignment and Assumption of Mortgage in the form of
Exhibit "D" hereto.
(ii) The Assignment and Assumption of Collateral Agreement in
the form of Exhibit "E" hereto.
(iii) The Assignment and Assumption of Share in the form of
Exhibit "H" hereto.
(iv) Any and all documents and/or instruments reasonably
necessary to change (A) the name of any Cash Collateral Account from
the name of Seller to Purchaser, and (B) the signatures of any Cash
Collateral Account.
(v) The Closing Statement initialed by Purchaser.
(vi) All other instruments and documents which may be reasonably
requested to effect the transaction contemplated by this Agreement
and within Purchaser's control, provided that such instruments or
documents may be delivered without additional cost or liability to
Purchaser (other than de minimis amounts).
(c) An opinion of Purchaser's outside counsel as to due
authorization, execution and delivery in customary form and subject to
customary exceptions, assumptions and qualifications.
6.4. Taxes; Title Expenses. (a) Any transfer, documentary, stamp, gains
and similar taxes and any filing fees (collectively, "Taxes") imposed in
connection with the transfer of the Loan or recording any document or
instrument contemplated hereby shall be paid by Purchaser, and all reports,
returns and related materials required to be submitted in connection therewith
shall be submitted by Seller at or prior to the Closing and evidence of the
same shall be submitted to Purchaser at the Closing.
(b) All premiums and fees or other costs for title examination and
title insurance or associated with any update of or endorsement to the Lender's
Title Policies, or any other report, study, survey or diligence research
obtained by Purchaser, if any, and all related charges in connection therewith
shall be paid by Purchaser.
6.5. Apportionments. (a) At the Closing, Purchaser shall pay to Seller an
amount (the "Collateral Account Closing Amount"), equal to all of the funds in
the Cash Collateral Account as of the Closing Date (as set forth on account
statements for such accounts as of the Closing Date), which amount shall not
exceed $18,000,000, it being understood and agreed that (i) there shall be no
prorations with respect to the Collateral Account Closing Amount, and (ii) all
credits and debits determined as a result of any apportionments and adjustments
under this Agreement shall only be to or against the Purchase Price.
(b) To the extent that on or before the Closing Date, Seller has not
paid or caused to be paid by the Borrower (or any other person) the amounts
set forth on Schedule "7" annexed hereto and made a part hereof on account of
capital expenditures, leasing expenses and commissions and tenant improvement
work related to the Real Property for which Schedule "7" hereto states Seller
is responsible, Purchaser shall receive a credit against the Purchase Price.
The failure to make or caused to be made the payments described in the
immediately preceding sentence shall not be deemed to result in a "net
diminution in value of the Loan" for purposes of Section 8.3 hereof (because
Purchaser shall receive a credit against the Purchase Price for such unpaid
item as set forth in the preceding sentence), except to the extent the delay
in payment as opposed to the non-payment itself has resulted in a "net
diminution in value of the Loan" for the purposes of Section 8.3. Nothing
contained in the preceding sentence shall be construed to affect a "net
diminution in value of the Loan" for the purposes of Section 8.3 arising out
of the status of the work paid or caused to be paid by Seller or credited to
Purchaser as set forth in this Section 6.5(b). With respect to the items of
capital expenditures, leasing expenses and commissions, tenant improvement
work related to the Real Property described on Schedule "7" hereto, Seller
shall not have any further requirements to make any payments. Nothing in this
clause (b) shall be in derogation of Purchaser's rights with respect to
breaches of representations set forth in Section 5.1 hereof (after taking into
account the apportionments made or to be made under this Section 6.5(b)).
(c) All operating expenses with respect to the Real Property will be
apportioned between the parties on and as of the Closing Date based upon
documentary evidence of payments made or due for such operating expenses.
(d) (i) Except as set forth in clause (ii) below, minimum rent,
additional rent, expense escalations and other adjustments and charges under,
or in respect of, the Leases shall be apportioned as of the Closing Date as,
when and to the extent actually collected.
(ii) If, as of the Closing Date, any tenant or occupant of the
Real Property shall be in arrears in the payment of minimum or
additional rent, expense escalations or other adjustments, then, in
such event payments received from such tenants or occupants after the
Closing shall be paid and applied in the following order of priority:
(I) first, apportioned between Purchaser and Seller on account of the
month in which the Closing occurred; (II) second, to Seller on
account of the month preceding the Closing; (III) third, to Purchaser
on account of any month or months following the Closing; and (IV)
fourth, to Seller on account of any month or months preceding the
month in which the Closing occurred;
(iii) After the Closing, Purchaser shall (I) use its reasonable
efforts to collect, on behalf of Seller, all accrued minimum and
additional rent, expense escalations, tax and other adjustments, and
other charges in which Seller has an interest which have not been
collected prior thereto, and (II) subject to clause (ii) above,
deliver to Seller all such amounts collected (less any reasonable
expenses incurred by Purchaser in collecting such amounts), together
with a reasonably detailed accounting of the amounts paid by tenants
and the amounts due to Seller from Purchaser. Notwithstanding the
foregoing to the contrary (x) Purchaser shall have no obligation to
commence (and Seller shall not commence) any action or proceeding to
collect any arrearages which may be due Seller, and (y) Purchaser's
obligations under clause (I) shall expire on the first anniversary of
the Closing Date with respect to arrearages of minimum rent, and
shall expire on the first anniversary of the date after the Closing
Date on which arrearages of additional rent, expense escalations, tax
or other adjustments are determined.
(iv) (A) If, prior to the Closing, Seller shall receive any
installments of additional rent, expense escalations, tax or other
adjustments from any tenant attributable to periods after the Closing
Date, then, Purchaser shall receive a credit against the Purchase
Price in the amount of such installments. In addition, to the extent
that tenants' additional rent, expense escalations, tax or other
adjustments for the period prior to the Closing have been paid by
tenants based on estimates, Seller shall promptly refund to the
applicable tenant any overpayments of additional rent, expense
escalations, tax or other adjustments which is determined to be owed
to such tenant subsequent to the Closing, it being understood and
agreed that if Seller shall fail to promptly pay any amount
determined to be so owed, then, in such event, upon written notice to
Seller, Purchaser may pay such amounts directly to the applicable
tenant and obtain reimbursement therefor from the Closing Escrow
Fund. The provisions of this clause (A) shall survive the Closing.
(B) To the extent that tenants' additional rent, expense
escalations and/or tax or other adjustments for the period prior to
the Closing have been paid by tenants based on estimates, subject to
the terms of clause (ii) above, Purchaser shall promptly pay to
Seller any underpayments of additional rent, expense escalations
and/or tax or other adjustments which are actually paid by the
tenants to Purchaser and determined to be owed to Seller subsequent
to the Closing. The terms of this clause (B) shall survive the
Closing.
(e) (i) Real estate taxes shall be apportioned between Seller and
Purchaser at the Closing on the basis of the fiscal year for which assessed. If
the Closing shall occur before a new tax rate is fixed, the apportionment of
real estate taxes at the Closing shall be based upon the tax rate for the
immediately preceding fiscal period applied to the latest assessed valuation of
the Real Property. Promptly after the new tax rate has been fixed, the
apportionment of real estate taxes made at the Closing shall be recomputed. Any
installment of any assessment levied against the Real Property which is due
prior to the Closing Date shall be paid in full by Seller or the Borrower, and
Purchaser shall be responsible for any remaining installments which are due and
payable after the Closing Date.
(ii) Any real estate tax refunds or credits with respect to
the Real Property which are attributable to the fiscal period in which the
Closing occurs shall be apportioned between Seller and Purchaser based upon
the time period in which the refunds or credits relate, after deducting all
costs and expenses of collecting same. Any real estate tax refunds or credits
with respect to the Real Property which are received after the Closing Date and
which are attributable to any fiscal period prior to the fiscal period in which
the Closing occurs shall belong solely to Seller. Seller, or its agents, on
behalf of the Borrower may withdraw, settle or otherwise compromise any protest
or reduction proceeding effecting real estate taxes assessed against the Real
Property for any fiscal period prior to the Closing with Purchaser's consent,
which consent shall not be unreasonably withheld, delayed or conditioned.
Neither Purchaser nor its agents, on behalf of the Borrower or otherwise, shall
withdraw, settle, or otherwise compromise any protest or reduction proceeding
effecting real estate taxes assessed against the Real Property for the fiscal
period in which the Closing occurs without the prior written consent of Seller,
which consent shall not be unreasonably withheld, delayed or conditioned. With
respect to real estate tax refunds or credits with respect to the Real Property
relating to the fiscal year in which the Closing occurs or relating to prior
fiscal years which may be required to be reimbursed to tenants at the Real
Property, Purchaser and Seller shall enter into an escrow arrangement on or
prior to the Due Diligence Expiration Date, in form and substance reasonably
satisfactory to Purchaser and Seller, for the payment of such reimbursements
(it being understood and agreed that the parties hereto hereby approve Pottish
Freyberg Marcus & Velazquez, LLP as escrow agent for the purposes of such
escrow arrangement). The terms of this Section 6.5(d) shall survive the
Closing.
(f) All insurance policies currently maintained by the Borrower
covering the Real Property shall be terminated on the Closing Date,
consequently there shall be no apportionment of any insurance premiums.
(g) (I) If after the date hereof, the Borrower enters into any Lease
or if there is any extension or renewal of any Leases, whether or not such
Leases provide for their extension or renewal, or any expansion or modification
of any Leases (each, a "New Lease"), in each case to the extent entered into in
accordance with this Agreement, Seller shall keep accurate records of all
expenses (collectively, "New Lease Expenses") incurred in connection with each
New Lease, including, without limitation, the following: (i) brokerage
commissions and fees relating to such leasing transaction, (ii) expenses
incurred for repairs, improvements, equipment, painting, decorating,
partitioning and other items to satisfy the tenant's requirements with regard
to such leasing transaction, (iii) the cost of removal and/or abatement of
asbestos or other hazardous or toxic substances located in the demised space,
(iv) reimbursements to the tenant for the cost of any of the items described in
the preceding clauses (ii) and (iii), (v) legal fees for services in connection
with the preparation of documents and other services rendered in connection
with the effectuation of the leasing transaction, (vi) rent concessions
relating to the demised space provided the tenant has the right to take
possession of such demised space during the period of such rent concessions,
and (vii) 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).
(II) The New Lease Expenses for each New Lease allocable
to Seller shall be determined by multiplying the amount of such New Lease
Expenses by a fraction, the numerator of which shall be the number of
days contained in that portion, if any, of the term of such New Lease
commencing on the date on which the tenant thereunder shall commenced to pay
fixed rent ("Commencement Date") and expiring on the date immediately preceding
the Closing Date, and the denominator of which shall be the total number of
days contained in the period commencing on the Commencement Date and expiring
on the date of the scheduled expiration of the term of such New Lease, and the
remaining balance of the New Lease Expenses for each New Lease shall be
allocable to and the responsibility of Purchaser. For purposes of this clause
(II), the Commencement Date under a renewal, extension, expansion or
modification of a Lease shall be deemed to be (i) in the case of a renewal or
extension (whether effective prior to or after the Closing, or in the form of
an option exercisable in the future), the first date during such renewal or
extension period after the originally scheduled expiration of the term of such
Lease on which the tenant under such Lease commences to pay fixed rent, (ii) in
the case of an expansion (whether effective prior to or after the Closing, or
in the form of an option exercisable in the future), the date on which the
tenant under such Lease commences to pay fixed rent for the additional space,
and (iii) in the case of a modification not also involving a renewal, extension
or expansion of such Lease, the effective date of such modification agreement.
At the Closing, Purchaser shall reimburse Seller for all New Lease Expenses
theretofore paid by Seller or the Borrower, if any, in excess of the portion of
the New Lease Expenses allocated to Seller pursuant to the provisions of the
preceding sentence.
(h) All apportionments shall be computed as of the close of business
on the day immediately preceding the Closing Date and such apportionments shall
be calculated in accordance with the "customs in respect of title closings" of
the Real Estate Board of New York on the Closing Date. Any calculation made in
computing any apportionment made pursuant to this Section 6.5 may be
reconfirmed following the Closing, and any errors thereto shall be corrected
immediately upon notice from the other party that such error(s) exist. If it is
determined that Seller failed to cause the Borrower to pay any expense with
respect to the Real Property not apportioned hereunder for any period prior to
the Closing Date, which expense was incurred through the act, with the consent
or at the direction of JPMIM, then, Seller shall pay or cause to be paid such
expense; it being understood and agreed that (i) the terms of this sentence
shall not apply to any matter described on Schedule "7" hereto, (ii) Seller
shall be entitled to use the Closing Escrow Fund to satisfy its obligations
under this sentence, and (iii) Seller's liability under this sentence shall be
limited to the then existing amount of Closing Escrow Fund. The provisions of
this Section 6.5 shall survive the Closing for six (6) months.
ARTICLE VII
DEFAULTS
7.1. Purchaser Default. Provided that Seller is (i) not in material
default of its non-monetary obligations hereunder, (ii) not in default, in any
respect, of its monetary obligations hereunder, and (iii) is otherwise ready,
willing and able to consummate the transactions contemplated hereby, in the
event Purchaser shall default in the performance of its obligation to purchase
the Loan in breach of its obligations under this Agreement, Seller shall be
entitled to terminate this Agreement and the sole remedy of Seller shall be to
retain the Escrow Funds as liquidated damages for all loss, damage and expense
suffered by Seller on account thereof, it being acknowledged by Purchaser and
Seller that in such event Seller will suffer substantial damages but such
damages are incapable of exact ascertainment. After payment to Seller of the
Escrow Funds, neither Seller nor Purchaser shall have any further rights or
obligations hereunder; provided, however, (a) that the indemnities contained in
Section 8.2(b) and Section 11.2 hereof, and (ii) the terms of the
Confidentiality Agreement, shall survive any such termination. Notwithstanding
anything to the contrary herein contained, if subsequent to the Closing
Purchaser shall fail to comply with its obligations contained herein which
survive Closing, Seller in addition to any rights and remedies provided herein,
shall be entitled to any and all remedies available at law, in equity or
otherwise.
7.2. Seller Default. (a) Provided that Purchaser is (i) not in material
default of its non-monetary obligations hereunder, (ii) not in default, in any
respect, of its monetary obligations hereunder, and (iii) is otherwise ready,
willing and able to consummate the transactions contemplated hereby, in the
event that on the Closing Date Seller shall be unable to perform or is
prohibited by court order from performing its obligations or to satisfy any
condition applicable to Seller hereunder in accordance with the provisions of
this Agreement, the sole remedy of Purchaser shall be to exercise the
Termination Option.
(b) Provided that Purchaser is (i) not in material default of its
non-monetary obligations hereunder, (ii) not in default, in any respect, of its
monetary obligations hereunder, and (iii) is otherwise ready, willing and able
to consummate the transactions contemplated hereby, in the event that Seller
willfully defaults in its obligation to transfer the Loan hereunder, Purchaser
shall be entitled to such remedies against Seller as are available at law or in
equity, including, without limitation, specific performance. Notwithstanding
anything to the contrary herein contained, if subsequent to the Closing Seller
shall fail to comply with its obligations contained herein which survive
Closing, Purchaser in addition to any rights and remedies provided herein,
shall be entitled to any and all remedies available at law, in equity or
otherwise.
ARTICLE VIII
INSPECTIONS; DUE DILIGENCE
8.1. Inspection of the Real Property. At all times prior to Closing or the
earlier termination of this Agreement, upon reasonable written notice to
Seller, Purchaser and such agents and representatives of Purchaser ("Authorized
Representatives") as shall have been identified to JPMIM in writing, shall have
the right, subject to the rights of tenants, the Borrower and other occupants
at the Real Property, to enter upon the Real Property to inspect and examine
the same; provided, however, that (a) Purchaser shall not unreasonably
interfere with the Borrower's use or operation of the Real Property, (b)
Seller, JPMIM or their representatives or employees shall accompany Purchaser
or any Authorized Representatives, (c) Purchaser shall not invade, alter or
destroy the Real Property in any manner whatsoever, and (d) as a condition
precedent to making any physical inspection of the Real Property, Purchaser
shall obtain and maintain (i) liability insurance in the amount of $2,000,000
for property damage coverage and in the amount of $5,000,000 for personal
injury coverage, which insurance shall name Seller, JPMIM and ESG as additional
insured parties, and (ii) with respect to any Authorized Representatives,
workers' compensation and disability insurance, as required by law. Purchaser
shall provide to JPMIM certificates of insurance evidencing such coverage prior
to entering upon the Real Property for the purpose of making any such physical
investigation. Purchaser and the Authorized Representatives shall have the
right, from time to time, upon reasonable written notice to and during normal
business hours, to examine the books, records and accounts with respect to the
Real Property at such reasonable location as JPMIM shall designate. It is
understood and agreed that Purchaser's satisfaction with such inspection shall
not constitute or be deemed to constitute a condition to Purchaser's
obligations hereunder.
8.2. Purchaser's Work. (a) Any work performed by Purchaser or its agents
in connection with any inspection of the Real Property shall be at Purchaser's
sole cost and expense. Purchaser covenants and agrees to pay in full all
persons who perform labor upon the Real Property, and not to permit or suffer
any mechanic's or materialmen's lien of any kind or nature to be asserted or
enforced against the Real Property for any work done or materials furnished
thereon at the instance or request or on behalf of Purchaser.
(b) Purchaser shall indemnify, defend and hold harmless Seller, the
Borrower, and the Seller Parties from and against any and all losses, costs,
liabilities, claims, damages or expenses (including, without limitation,
reasonable attorney's fees and costs) arising out of any inspection of, or
access to, the Real Property by Purchaser or its Authorized Representatives.
Purchaser, at its sole cost and expense, shall promptly restore the Real
Property to its condition immediately prior to the performance of such
investigation by Purchaser pursuant to this Article VIII and shall repair any
and all damage caused by Purchaser or Purchaser's employees, representatives or
agents. Purchaser acknowledges and agrees that Seller shall have the right (but
not the obligation) to use the Escrow Funds to restore the Real Property if
Purchaser shall fail to comply with this Section 8.2. The terms of this Section
8.2 shall survive the Closing or earlier termination of this Agreement.
8.3. Due Diligence. (a) Within one (1) day after the date hereof, Seller
shall deliver or make available to Purchaser the Review Materials existing as
of the date hereof. Subject to and in accordance with the terms of Section 8.1
hereof and Section 8.2 hereof, Purchaser shall have access to the Real Property
and information relating to the Real Property.
(b) Subject to and in accordance with the terms of this Section 8.3,
Purchaser shall have the right to exercise the Termination Option if (i)
Purchaser's due diligence reveals any fact (a "Diligence Fact") relating to the
Loan or the Real Property (but not relating to (x) the business or financial
condition of the Borrower (or its direct or indirect partners or their
respective affiliates) or the organizational structure of the Borrower (or its
direct or indirect partners or their respective affiliates), or (y) the general
real estate or financial markets) which was not previously disclosed in
Schedule "1" hereto, Schedule "6" hereto or the written information prepared by
ESG annexed hereto and made a part hereof as Schedule "11" and/or the PRO-JECT
Financial Analysis Disk accompanying such written information (the "ESG
Information Book"), and the failure to cure or remediate such Diligence Fact
would result in the net diminution in value of the Loan, and (ii) the aggregate
amount (the "Diminution Amount") determined under clause (i) of this sentence
is in excess of Two Million ($2,000,000) Dollars (the "Threshold Amount").
Notwithstanding the foregoing to the contrary but subject to the terms of
clause (d) below, if (i) the Diminution Amount, in the aggregate, does not
exceed Twenty-Five Million Dollars ($25,000,000) (the "Cap Amount"), and (ii)
Seller (in its sole discretion and within five (5) business days after Seller's
receipt of Purchaser's notice setting forth in reasonable detail each Diligence
Fact and each related Diminution Amount ("Purchaser's Preliminary Notice"))
shall agree to a reduction of the Purchase Price by an amount (the "Reduction
Amount") equal to the aggregate Diminution Amount in excess of the Threshold
Amount, up to the Cap Amount, then, in such event, (A) Purchaser shall be
deemed not have the right to terminate this Agreement as provided in this
Section 8.3, and (B) the Purchase Price shall be deemed to be equal to the
original Purchase Price, reduced by the Reduction Amount as provided herein,
for all purposes in this Agreement; provided, however, that Seller shall have
the right to extend such 5-business day period for an aggregate of fifteen (15)
days. For the purposes of this Section 8.3, the term "net diminution of value"
shall mean a net decrease in the value of the Loan resulting from actual facts
and information (other than facts and information relating to (x) the business
or financial condition of the Borrower (or its direct or indirect partners of
their respective affiliates), or (y) the general real estate or financial
markets not previously disclosed in Schedule "1", Schedule "6" or the ESG
Information Book. For the purposes of the foregoing, Seller and Purchaser
acknowledge and agree that there is no need to determine the actual value of
the Loan as of any point in time, but only the net reduction, if any, in value.
(c) Purchaser's right to exercise the Termination Option under this
Section 8.3 shall be exercisable only by delivery to Seller and Escrow Agent of
the Purchaser's Preliminary Notice at any time during the period commencing on
the date of this Agreement and continuing up to but no later than 5:00 p.m. on
May 24, 1999 (such date, as the same may be extended pursuant to this Section
8.3(c), being the "Due Diligence Expiration Date"); provided, however, that if
Seller fails to respond to Purchaser's Preliminary Notice prior to the Due
Diligence Expiration Date, Purchaser's right to terminate this Agreement as
provided in this Section 8.3 shall be preserved (and the Due Diligence
Expiration Date shall be deemed extended) until Purchaser's receipt of Seller's
notice stating whether or not Seller agrees to such reduction in the Purchase
Price; provided, further, however, that (I) Purchaser shall have no right to
deliver any supplement or addition to Purchaser's Preliminary Notice after the
Due Diligence Expiration Date and the Due Diligence Expiration Date shall not
be deemed extended for that purpose, (II) if Seller notifies Purchaser of its
refusal to so reduce the Purchase Price by the Reduction Amount then, in such
event, Purchaser shall have the right, by written notice to Seller within one
(1) business day following receipt of Seller's notice of its refusal to reduce
the Purchase Price, to (i) exercise the Termination Option, or (ii) waive its
rights to terminate this Agreement under this Section 8.3 and accept the Loan
and consummate the Closing subject to and in accordance with the terms of this
Agreement without any abatement of, or credit against, the Purchase Price and
Purchaser shall have one (1) additional business day to deliver the Additional
Deposit to Escrow Agent, and (III) if Seller notifies Purchaser that Seller
agrees to reduce the Purchase Price by the Reduction Amount, then, in such
event, Purchaser shall have two (2) business days to deliver the Additional
Deposit to Escrow Agent. Notwithstanding anything contained herein to the
contrary, (x) if Purchaser fails to deliver a Purchaser's Preliminary Notice by
the Due Diligence Expiration Date, then Purchaser shall be deemed to have
forever waived its right to terminate this Agreement pursuant to this Section
8.3, it being understood and agreed that Purchaser shall have no right to
deliver a Purchaser's Preliminary Notice after the Due Diligence Expiration
Date, or (y) if prior to the date which is two (2) business days prior to the
Due Diligence Expiration Date Seller gives any of the Knowledge Persons written
notice of any fact and/or information which results in a "net diminution value"
(as defined in Section 8.3(b) above) and Purchaser does not include any such
fact and/or information in Purchaser's Preliminary Notice, then Purchaser shall
be deemed to have forever waived its right to assert any rights under this
Agreement with respect to any such fact and/or information.
ARTICLE IX
INDEMNIFICATION
9.1. Indemnification. (a) Effective upon the consummation of the Closing,
Purchaser shall indemnify, defend and hold harmless Seller and the Seller
Parties (collectively, "Indemnitees") from and against any and all Liabilities
(as hereinafter defined), which any Indemnitee may suffer, incur or payout, or
which may be asserted against any Indemnitee, in whole or in part, by reason of
or in connection with, or arising out of the Loan, the Loan Documents or the
Real Property (including, without limitation, any claims of third parties,
tenants under the Leases (or under any subordination, nondisturbance and
attornment agreement entered into in connection with any such Lease), or the
Borrower) (i) arising after the Closing Date with respect to events and/or
conditions (including, without limitation, acts or omissions) occurring after
the Closing Date, or (ii) arising in connection with or out of any enforcement
claim, proceeding, suit or other action whatsoever with respect to the Loan
taken by Purchaser (or any Affiliate of Purchaser) against the Borrower or its
direct or indirect partners or their respective affiliates, it being understood
and agreed that in connection with any agreement or other arrangement by and
between Purchaser (or its Affiliate) and the Borrower (or its direct or
indirect partners or their respective affiliates), Purchaser (or its Affiliate)
shall use all commercially reasonable and good faith efforts to obtain a full,
unconditional and irrevocable release of Indemnitees with respect to the Loan
(and Purchaser (or its Affiliate) upon Seller's (or its representative's)
request, shall keep Seller reasonably informed of the status of the negotiation
of any such release, but, without request, Purchaser (or its Affiliate) shall
inform Seller if it has obtained such release or if it is unable to obtain such
a release). The terms of this Section 9.1 shall survive the Closing.
(b) For the purposes of this Agreement, the term "Liability" shall
mean any liability, obligation, loss, costs, damage, penalty, claim, lien,
charge and/or expense (including, without limitation, attorneys' and other
professionals' fees and expenses).
9.2. Release. Except for Seller's obligations hereunder which survive
Closing, effective as of the consummation of the Closing, to the fullest extent
permitted by law, Purchaser hereby releases, discharges and forever acquit each
Indemnitee from all matters, claims, liabilities, demands, causes of action,
debts, obligations, promises, acts, agreements, interests, damages of whatever
kind or nature, and any attorneys' fees and expenses that may be related
thereto, whether known or unknown which Purchaser has or may hereafter incur or
acquire against any Indemnitee by reason of or relating to this Agreement, the
Loan, the Loan Documents or the Real Property. The terms of this Section 9.2
shall survive the Closing.
ARTICLE X
CASUALTY AND CONDEMNATION
10.1. Casualty. If, prior to the Closing Date, any damage or destruction
(a "Casualty") of any part of the Real Property as a result of any fire or
other casualty occurs, Seller shall notify Purchaser of such Casualty. If prior
to the Closing Date a Non-Material Casualty (as hereinafter defined) occurs,
then, in such event, (a) this Agreement shall remain in full force and effect,
and (b) Seller shall (i) credit to Purchaser against the Purchase Price the
amount of any insurance proceeds theretofore received by Seller in connection
with any such Casualty, less Seller's out-of-pocket cost incurred in connection
with its attempts to seek collection of any such insurance proceeds, and credit
to Purchaser against the Purchase Price an amount equal to the deductible
amount under the Borrower's insurance policies, and (ii) assign to Purchaser by
written assignment in form and substances satisfactory to Seller and Purchaser,
at the Closing, all of Seller's right, title and interest in and to any
insurance proceeds payable in connection with such Casualty. In the event of an
occurrence of a Casualty referred to in the immediately preceding sentence
prior to the Closing Date, Purchaser shall have the right to participate, in a
reasonable manner, in the negotiations and settlement of any insurance claim
and any decision regarding the reconstruction or renovation of any improvement
on the Real Property, it being understood and agreed that Seller shall not
settle any insurance claim or consent to any application of any insurance
proceeds to the restoration of the Real Property without Purchaser's prior
written consent, which consent shall not be unreasonably withheld, delayed or
conditioned. If prior to the Closing Date, a Material Casualty (as hereinafter
defined) occurs, Purchaser shall have the right, without duplication of its
rights under Section 8.3 hereof, to exercise the Termination Option upon notice
to Seller given upon the earlier to occur of (x) ten (10) days after written
notice is given to Purchaser of the Casualty, or (y) the Closing Date. If
Purchaser elects not to exercise the Termination Option, the Material Casualty
shall be deemed to be a "Non-Material Casualty" for all purposes hereunder and
Purchaser and Seller shall proceed to Closing, subject to satisfaction of the
provisions herein with respect to a Non-Material Casualty. Except as otherwise
provided in this Section 10.1, Purchaser shall not be entitled to any reduction
of, or credit against, the Purchase Price in the event of any Casualty, and
Purchaser shall be obligated to close hereunder notwithstanding the occurrence
of any such event. Seller shall in no event have any obligation to Purchaser to
repair, restore or replace any portion of the Real Property affected by any
Casualty. As used herein, the term "Material Casualty" shall mean any Casualty
(i) the cost of which to repair is in excess of $25,000,000, or (ii) which will
allow the tenant under the Debevoise Lease, the Schulte Lease, the BNP Lease or
the Kramer Lease to terminate their Leases. As used herein, the term
"Non-Material Casualty" shall mean a Casualty which is not a Material Casualty.
10.2. Condemnation. If, prior to the Closing Date, any taking by
condemnation or eminent domain (a "Condemnation") of any part of the Real
Property occurs, Seller shall notify Purchaser of such Condemnation. If, prior
to the Closing Date, a Condemnation occurs, then, in such event, (a) this
Agreement shall remain in full force and effect, and (b) Seller shall (i)
credit to Purchaser against the Purchase Price the amount of any award
theretofore received by Seller in connection with any such Condemnation, less
Seller's out-of-pocket cost incurred in connection with its attempts to seek
collection of any such awards, and (ii) assign to Purchaser by written
assignment in form and substances satisfactory to Seller and Purchaser, at the
Closing all of Seller's right, title and interest in and to any award payable
in connection with such Condemnation. Prior to the Closing Date, Purchaser
shall have the right to participate, in a reasonable manner, in the
negotiations and settlement of any Condemnation award and any decision
regarding the reconstruction or renovation of any improvement on the Real
Property, it being understood and agreed that Seller shall not settle any
Condemnation award or consent to any application of any Condemnation award to
the restoration of the Real Property without Purchaser's prior written consent,
which consent shall not be unreasonably withheld, delayed or conditioned.
Except as otherwise provided in this Section 10.2, Purchaser shall not be
entitled to any reduction of, or credit against, the Purchase Price in the
event of any Condemnation, and Purchaser shall be obligated to close hereunder
notwithstanding the occurrence of any such event. Seller shall in no event have
any obligation to Purchaser to repair, restore or replace any portion of the
Real Property affected by any Condemnation.
ARTICLE XI
MISCELLANEOUS
11.1. No Third-Party Beneficiaries. Nothing in this Agreement is intended
to confer upon any person, other than the parties hereto and their respective
successors and permitted assigns, any rights, remedies, obligations or
liabilities under, or by reason of, this Agreement.
11.2 Broker. (a) Each of Seller and Purchaser represents and warrants to
the other that it knows of no broker or finder with whom it has dealt or who
has claimed or who may have the right to claim any fee, commission or other
similar compensation in connection with the transaction contemplated by this
Agreement other than ESG (the "Broker"). Seller represents and warrants that it
shall be solely responsible for the payment of any and all fees, commissions or
other compensation due to the Broker in connection with this transaction
pursuant to a separate agreement previously entered into between Seller and
Broker.
(b) Purchaser shall indemnify, defend and hold harmless Seller, its
agents, employees and representatives from and against any and all losses,
costs, liabilities, claims, damages or expenses (including, without limitation,
reasonable attorneys' fees and costs) arising out of the breach of Purchaser's
representations or warranties contained in this Section 11.2.
(c) Seller shall indemnify, defend and hold harmless Purchaser, its
agents, employees and representatives from and against any and all losses,
costs, liabilities, claims, damages or expenses (including, without limitation,
reasonable attorneys' fees and costs) arising out of the breach of Seller's
representations or warranties contained in this Section 11.2.
(d) The representations, warranties and indemnities contained in this
Section 11.2 shall survive the Closing or, if the Closing does not occur, the
termination of this Agreement.
11.3 [INTENTIONALLY BLANK.]
11.4. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, representatives,
successors and permitted assigns; provided, however, that Purchaser shall not
sell, assign, transfer or otherwise convey its rights or obligations under this
Agreement, in whole or part, without the prior written consent of Seller;
except, however, that at the Closing, Purchaser shall be entitled to assign its
rights under this Agreement to an Affiliate (as hereinafter defined) without
Seller's prior written consent provided that (A) Purchaser and such Affiliate
execute and deliver to Seller an originally executed Assignment and Assumption
Agreement, in form and substance reasonably satisfactory to Seller, pursuant to
which such Affiliate assumes all of Purchaser's obligations hereunder, and (B)
Purchaser shall remain fully and primarily liable for all obligations and
liabilities hereunder (including, without limitation, those that survive the
Closing or earlier termination of this Agreement). For the purposes of this
Section 11.4, the term "Affiliate" shall mean an entity (x) directly or
indirectly controlling, controlled by, or under common control with Purchaser,
or (y) fifty percent (50%) or more of whose equity interest is directly or
indirectly owned or held by Purchaser.
11.5. Waiver of Jury Trial. EACH OF THE PURCHASER AND SELLER HEREBY WAIVES
TRIAL BY JURY IN ANY ACTION ARISING OUT OF MATTERS RELATED TO THIS AGREEMENT,
WHICH WAIVER IS INFORMED AND VOLUNTARY.
11.6. Waiver. The rights of each of the parties under this Agreement are
cumulative and may be exercised as often as any party considers appropriate.
The rights of each of the parties hereunder shall not be capable of being
waived or varied otherwise than by an express waiver or variation in writing.
Waiver of any one breach of any provision hereof shall not be deemed to be a
waiver of any other breach of the same or any other provision hereof. Failure
to exercise or any delay in exercising any of such rights also shall not
operate as a waiver or variation of that or any other such right. Defective or
partial exercise of any such rights shall not preclude any other or further
exercise of that or any their such right. No act or course of conduct or
negotiation on the part of any such party shall in any way preclude such party
from exercising any such right or constitute a suspension of or any variation
of any such right.
11.7. Captions. Article captions contained herein are inserted as a matter
of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
11.8. Prevailing Party. If either party hereto brings any action or suit
against any other by reason of any breach of any of the covenants, agreements
or provisions of this Agreement, then in such event, the prevailing party, as
determined in such action or suit, shall be entitled to have and recover from
the other party all costs and expenses of such action or suit, including,
without limitation, reasonable attorneys' fees and expenses resulting
therefrom, it being understood that the determination of the prevailing party
shall be included in the matters which are the subject of such action or suit.
11.9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument. Upon Purchaser's execution and
delivery of this Agreement, this Agreement shall be binding and effective upon,
and shall be an irrevocable offer to Seller by, Purchaser until 12:00 noon (New
York time) on the next business day following execution and delivery of this
Agreement by Purchaser, unless Seller executes and delivers this Agreement
prior to such time, in which case this Agreement shall remain binding and
effective upon Purchaser in accordance with the terms of this Agreement. This
Agreement shall not be binding upon or enforceable against Seller unless and
until executed and delivered by Seller and the Escrow Agent has received the
Initial Deposit.
11.10. Exhibits and Schedules. All Exhibits and Schedules attached hereto
are incorporated herein by reference as though fully set forth at length
herein.
11.11. Notices. (a) All notices, demands, requests, consents and waivers
under this Agreement shall be in writing, shall refer to this Agreement and
shall be (i) delivered personally, (ii) sent by registered or certified mail,
postage prepaid, return receipt requested, (iii) sent by a nationally
recognized overnight courier, or (iv) sent by telecopier, with written
confirmation of the receipt of such telecopy, addressed as set forth below. If
delivered personally, any notice shall be deemed to have been given on the
first (1st) business day on or after the date delivered or refused. If mailed,
any notice shall be deemed to have been given on the earlier to occur of the
first (1st) business day on or after the date of delivery or the third (3rd)
business day after such notice has been deposited in the U.S. mail in
accordance with this Section 11.11. If sent by overnight courier, any notice
shall be deemed to have been given on the first (1st) business day on or after
the date following the date such notice was delivered to or picked up by the
courier. If sent by telecopier, any notice shall be deemed to have been given
(I) on the first (1st) business day on or after the date sent, if confirmation
of receipt hereof is given on or before 5:00 p.m. (New York City time), or (II)
on the next business day, if confirmation of receipt thereof is given after
5:00 p.m. (New York City time). Copies of all notices shall be given in
accordance with the above as follows:
TO SELLER: NBBRE-919 Third Avenue Associates, L.P.
c/o NBB Real Estate Inc.
530 Fifth Avenue
New York, New York 10036
Attention: Toshihiko Asai
Telecopier: 813-3281-0215
WITH A COPY TO: Gibson, Dunn & Crutcher, LLP
200 Park Avenue
New York, New York 10166
Attention: Andrew H. Levy, Esq.
Telecopier: (212) 351-4035
and
J.P. Morgan Investment Management Inc.
522 Fifth Avenue
New York, New York 10036
Attention: Donald Rederscheid
Telecopier: (212) 837-5208
TO PURCHASER: Reckson Operating Partnership, L.P.
c/o Reckson Associates Realty Corp.
10 East 50th Street
New York, New York 10022
Attention: Philip M. Waterman III
Telecopier: (212) 715-6535
WITH A COPY TO: Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Joshua Mermelstein, Esq.
Telecopier: (212) 859-4000
(b) Any counsel designated above or any replacement counsel which may
be designated respectively by either Seller or Purchaser or such counsel by
written notice to the other party is hereby authorized to give notices
hereunder on behalf of its respective client.
11.12. Construction. Whenever the singular number is used herein and when
required by the context, the same shall include the plural, and the masculine,
feminine and neuter genders shall each include the others, and the word
"person" shall include corporation, firm, partnership, joint venture, trust or
other entity.
11.13. Amendment. This Agreement may be amended or modified only by a
written agreement executed by the person against whom enforcement of such
amendment or modification is sought.
11.14. Entire Agreement. Other than that certain confidentiality letter,
dated February 4, 1999, from or on behalf of Purchaser to Seller (the
"Confidentiality Agreement"), this Agreement contains the entire agreement of
the parties with respect to the subject matter hereof, and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
contained herein shall be of any force or effect, all of the same being merged
herein.
11.15. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to
principles of conflicts of law.
11.16 Monetary Amounts. All monetary amounts referred to herein are in
United States Dollars.
11.17 Time of the Essence. Time shall be of the essence as to Purchaser's
performance of all of its obligations under this Agreement.
11.18. Confidentiality. All terms and conditions of the Confidentiality
Agreement shall remain in full force and effect according to its terms during
the pendency of this Agreement and such terms thereof as are intended to
survive acquisition of the Loan by Purchaser shall continue to survive. The
provisions of this Section shall survive the Closing or any expiration or
termination of this Agreement.
11.19. No Recording. Neither Seller nor Purchaser shall record, or arrange
to record, this Agreement with any filing office in any jurisdiction.
11.20. Review Materials. On or before the Due Diligence Expiration Date,
Purchaser and Seller shall jointly deliver to Escrow Agent a box containing all
Review Materials as of such date. Escrow Agent shall hold such Review Materials
(and any Review Materials thereafter jointly +delivered to Escrow Agent), at
Purchaser's and Seller's joint expense, pursuant to the terms of an escrow
agreement in form and substance reasonably satisfactory to Purchaser, Seller
and Escrow Agent. Seller agrees that, unless requested by Purchaser, Seller
shall not deliver (or make available to Purchaser at the room in the Real
Property labeled "War Room") any Review Materials not previously delivered or
made available to Purchaser during (a) the two (2) business day period prior to
the Due Diligence Expiration Date, or (b) the two (2) business day period prior
to the Closing Date.
11.21. Consent to Jurisdiction. Each of Purchaser and Seller hereby
irrevocably and unconditionally (a) submits itself, solely for the purposes of
any legal action or proceeding relating to this Agreement or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, the courts of the
United States of America for the Southern District of New York, and appellate
courts thereof (collectively, the "New York Courts"), (b) consents to the
bringing of any such action or proceeding in the New York Courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court, including, without limitation any objection that
such action or proceeding was brought in an inconvenient court, and agrees not
to plead or otherwise assert the same, (c) agrees to service upon it of any and
all process in any such action or proceeding at the address and in the manner
set forth in Section 11.11 hereof, (d) agrees that nothing herein shall affect
the right to effect service of process in any other manner permitted by law,
and (e) agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
11.22. Acquisition of Partnership Interests. Purchaser has requested that
Seller consider arranging for the sale of all of the partnership interests in
Seller rather than a sale of the Loan. Seller shall consider such request once
Purchaser delivers to Seller a written proposal regarding such sale; provided,
however, that (a) neither Seller's consideration of such proposal nor anything
contained herein shall be deemed a binding agreement to sell partnership
interests in Seller, (b) Seller may accept or reject, in its sole and absolute
discretion, any proposal by Purchaser, and (c) no person shall be bound to sell
any partnership interests unless and until definitive documentation is executed
and delivered by all parties thereto.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SELLER:
NBBRE-919 THIRD AVENUE ASSOCIATES, L.P.
By: NBB Real Estate, Inc.,
its General Partner
By: /s/ Ichiro Tsunada
--------------------------------
Name: Ichiro Tsunada
Title: President
PURCHASER:
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
its General Partner
By: /s/ Scott Rechler
---------------------------------
Scott Rechler
President
Employer Identification Number:_________________
THE UNDERSIGNED JOINS IN THE EXECUTION HEREOF SOLELY FOR THE PURPOSES OF
AGREEING TO ACT AS "ESCROW AGENT" PURSUANT AND SUBJECT TO THE PROVISIONS OF
THIS AGREEMENT:
GIBSON, DUNN & CRUTCHER LLP
By:/s/ Andrew H. Levy
------------------------------------
Andrew H. Levy, Partner
