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Exhibit 10.7
CONFIDENTIAL
PURCHASE AND SALE AGREEMENT
between
233 BROADWAY, INC.,
as Seller,
and
233 BROADWAY OWNERS, LLC,
as Purchaser
Dated: June 20, 1998
Premises:
227-237 Broadway
21 Barclay Street
and
22 Park Place
New York, New York
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TABLE OF CONTENTS
Page
ARTICLE I.
Sale of Property...............................................1
1.1. Sale. ..................................................1
1.2. Excluded Property. .....................................3
1.3. Like Kind Exchange.......................................4
1.4. License Agreement. .....................................4
ARTICLE II.
Purchase Price.................................................4
2.1. Purchase Price. ........................................4
ARTICLE III.
Deposit........................................................5
3.1. Deposit. ................................................5
3.2. Application of Deposit. .................................6
3.3. Escrow Agent.............................................6
ARTICLE IV.
Closing, Prorations and Closing Costs..........................9
4.1. Closing..................................................9
4.2. Prorations...............................................9
4.3. Transfer Taxes...........................................15
4.4. Closing Costs............................................15
ARTICLE V.
Title and Survey Matters.......................................16
5.1. Title....................................................16
5.2. Seller's Inability to Convey Title.......................18
5.3. Violations...............................................18
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ARTICLE VI.
Representations and Warranties of Seller.......................19
6.1. Seller's Representations.................................19
6.2. Seller's Knowledge.......................................23
6.3. Change in Representation/Waiver..........................23
6.4. Survival.................................................24
6.5. Limitation of Liability..................................24
6.6. "AS IS" Sale.............................................25
ARTICLE VII.
Representations and Warranties of Purchaser....................25
7.1. Authority................................................25
7.2. Bankruptcy or Debt of Purchaser..........................25
7.3. No Financing Contingency.................................26
7.4. Purchaser's Acknowledgment...............................26
7.5. Survival.................................................27
ARTICLE VIII.
Seller's Interim Operating Covenants...........................27
8.1. Operations...............................................27
8.2. Maintain Insurance.......................................28
8.3. Personal Property........................................28
8.4. No Sales.................................................28
8.5. Tenant Leases............................................28
8.6. Reserved.................................................29
8.7. Tenant Estoppels.........................................29
8.8. Contracts................................................29
8.9. Tax Appeal Proceedings...................................30
8.10. Notices of Violation.....................................30
8.11. Access...................................................30
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ARTICLE IX.
Closing Conditions..............................................31
9.1. Conditions to Obligations of Seller.......................31
9.2. Conditions to Obligations of Purchaser....................32
ARTICLE X.
Closing.........................................................33
10.1. Seller's Closing Obligations.............................33
10.2. Purchaser's Closing Obligations..........................36
ARTICLE XI.
Risk of Loss....................................................38
11.1. Condemnation and Casualty................................38
11.2. Condemnation not Material................................38
11.3. Casualty not Material....................................38
11.4. Materiality..............................................39
11.5. General Obligations Law..................................39
ARTICLE XII.
Default.........................................................39
12.1. Default by Seller........................................39
12.2. Default by Purchaser. ..................................40
ARTICLE XIII.
Brokers.........................................................40
13.1. Brokerage Indemnity......................................40
ARTICLE XIV.
Confidentiality.................................................41
14.1. Publication..............................................41
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ARTICLE XV.
15.1. Employment Responsibilities..............................41
15.2. Collective Bargaining Agreements.........................43
15.3. Survival.................................................43
ARTICLE XVI.
Miscellaneous...................................................43
16.1. Notices..................................................43
16.2. Governing Law; Venue.....................................45
16.3. Headings.................................................45
16.4. Business Days............................................45
16.5. Counterpart Copies.......................................45
16.6. Binding Effect...........................................46
16.7. Successors and Assigns...................................46
16.8. Assignment...............................................46
16.9. Interpretation...........................................46
16.10. Entire Agreement........................................46
16.11. Severability............................................47
16.12. Survival................................................47
16.13. Exhibits................................................47
16.14. Limitation of Liability.................................47
16.15. Prevailing Party........................................47
16.16. Real Estate Reporting Person............................48
16.17. No Recording............................................48
16.18. No Other Parties........................................48
16.19. Waiver of Trial by Jury.................................48
16.20. Rule 314................................................48
ARTICLE XVII.
Purchaser Guaranty..............................................49
17.1. Purchaser Guaranty.......................................49
17.2. Waivers..................................................49
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17.3. Absolute Obligation......................................49
17.4. Enforcement Costs........................................50
17.5. Waiver of Subrogation....................................50
17.6. Waiver of Defenses.......................................50
ARTICLE XVIII.
Venator Lease...................................................50
18.1. Venator Lease............................................50
18.2. Disputes.................................................51
18.3. Alterations..............................................52
ARTICLE XIX.
Seller Guaranty.................................................52
19.1. Seller Guaranty..........................................52
19.2. Waivers..................................................52
19.3. Absolute Obligation......................................52
19.4. Enforcement Costs........................................53
19.5. Waiver of Subrogation....................................53
19.6. Waiver of Defenses.......................................53
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LIST OF EXHIBITS AND SCHEDULES
Exhibits:
Exhibit A-1 - Broadway Parcel
Exhibit A-2 - Barclay Parcel
Exhibit A-3 - Park Place Parcel
Exhibit B - Form of License Agreement
Exhibit C - Permitted Exceptions
Exhibit D - Leases
Exhibit E - Rent Roll
Exhibit F - Term Sheet for Venator Lease
Exhibit G - Form of Deed
Exhibit H - Form of Assignment and Assumption of Leases
Exhibit I - Form of Assignment and Assumption of Contracts
Exhibit J - Form of Seller's Letter to Tenants
Exhibit K - Form of Seller's Bring-Down Certificate
Exhibit L - Form of Bill of Sale
Exhibit M - Form of FIRPTA Certificate
Exhibit N - Form of Non-Multiple Dwelling Affidavit
Exhibit O - Form of Venator SNDA
Exhibit P - Form of Purchaser's Bring-Down Certificate
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Exhibit Q - Memorandum Regarding Alterations in Venator
Premises
Exhibit R - Intentionally Omitted
Exhibit S - Form of Landlord's Estoppel Certificate
Schedules:
Schedule 1 - Excluded Assets
Schedule 2 - Lease Defaults
Schedule 3 - Intentionally Omitted
Schedule 4 - Contracts
Schedule 5 - Tax Appeals
Schedule 6 - Insurance Policies
Schedule 7 - Litigation
Schedule 8 - Employees
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CONFIDENTIAL
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into as of the 20th day of June, 1998, by and between 233 BROADWAY, INC., a New
York corporation ("Seller"), and 233 BROADWAY OWNERS, LLC, a New York limited
liability company ("Purchaser").
In consideration of the mutual promises, covenants and agreements
hereinafter set forth and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
ARTICLE I.
Sale of Property
1.1. Sale. Seller hereby agrees to sell, assign and convey to Purchaser and
Purchaser agrees to purchase from Seller, the following:
1.1.1. Those certain parcels of real property lying and being situated in
the City, County and State of New York and being more particularly described (i)
on Exhibit A-1 attached hereto (the "Broadway Parcel"), (ii) on Exhibit A-2
attached hereto (the "Barclay Parcel") and (iii) on Exhibit A-3 attached hereto
(the "Park Place Parcel")(the Broadway Parcel, the Barclay Parcel and the Park
Place Parcel are hereinafter collectively referred to as the "Land");
1.1.2. All buildings, structures and improvements now or hereafter erected
or situate on the Land or any portion thereof (the "Improvements");
1.1.3. All rights of Seller, if any, in and to any land lying in the bed of
any street, road or avenue, opened or proposed, in front of or adjoining the
Land or any portion thereof, to the center line thereof, and any strips and
gores adjacent to the Land or any portion thereof, and all right, title and
interest of Seller in and to any award made or to be made in lieu thereof and in
and to any unpaid award for damage to the Land and Improvements or any portion
thereof by reason of any change of grade of any street;
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1.1.4. All rights, privileges, grants and easements appurtenant to Seller's
interest in the Land and the Improvements, if any, including, without
limitation, all of Seller's right, title and interest, if any, in and to all
easements, licenses, covenants and other rights-of-way or other appurtenances
used in connection with the beneficial use and enjoyment of the Land and the
Improvements (the Land, the Improvements, all rights and interests described in
Section 1.1.3 and all such easements, grants and appurtenances are sometimes
collectively referred to herein as the "Real Property");
1.1.5. All leases, licenses and other occupancy agreements covering
offices, stores and other spaces at or within the Improvements (together with
any and all amendments, modifications or supplements thereto, collectively, the
"Leases") and, subject to Section 4.2.6 below, the security deposits under such
Leases (the "Security Deposits") which have not been applied in accordance with
the provisions of such Leases;
1.1.6. All fixtures, equipment, castings and personal property, if any,
used solely in connection with the ownership, management, maintenance or
operation of the Improvements and located at the Real Property as of the date
hereof, and all inventory used solely in connection with the ownership,
management, maintenance or operation of the Improvements and located on the Real
Property on the date of Closing (the "Per sonal Property"); and
1.1.7. All (i) service, utility, maintenance and other contracts or
agreements to which Seller is a party or which otherwise would be binding on
Purchaser or the Property (as hereinafter defined), and all union or other
collective bargaining contracts (collectively, the "Contracts") in effect with
respect to the Property (as hereinafter defined) as of the Closing Date and not
terminated by Seller under Section 8.8 and (ii) guarantees, licenses, approvals,
certificates, permits and warranties relating to the Property (collectively, the
"Permits and Licenses"), all to the extent assignable (the Contracts and the
Permits and Licenses are sometimes hereinafter collectively referred to as the
"Intangible Property").
(The Real Property, the Leases, the Security Deposits, the Personal
Property, the Intangible Property and the foregoing other property interests
held by Seller in connection with the ownership, management, maintenance or
operation of the Real Property are sometimes collectively hereinafter referred
to as the "Property").
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CONFIDENTIAL
1.2. Excluded Property. Notwithstanding the provisions of Section 1.1,
Seller shall not sell, assign, transfer or deliver to Purchaser and Purchaser
shall not purchase, acquire or accept from Seller:
1.2.1. Except as provided in Section 1.4, all trademarks and tradenames, if
any, of Seller or any of Seller's affiliated companies used or useful in
connection with the Real Property (including, without limitation, the name
"Woolworth" and all moveable artwork and memorabilia relating to Frank Woolworth
and/or F.W. Wool worth Co.).
1.2.2. All fixtures, equipment and personal property of Seller and its
affiliates used solely in connection with the ownership and operation of its or
their busi nesses (other than the business of owning, managing, maintaining or
operating the Prop erty) and/or the premises currently occupied by Venator
Group, Inc. or any of its affiliates or to be demised under the Venator Lease
(as hereinafter defined) (collectively, the "Venator Premises") and located in
the Venator Premises as of the date hereof, and all inventory used in connection
with the ownership and operation of its or their businesses (other than the
business of owning, managing, maintaining or operating the Property) and/or the
Venator Premises and located at the Venator Premises on the Closing Date.
1.2.3. Any other assets of Seller described on Schedule 1 attached hereto
(all of the foregoing being collectively referred to herein as the "Excluded
Assets").
1.2.4. Notwithstanding the foregoing, any Excluded Assets remaining in a
portion of the Property not leased to Seller or any of its affiliates as of the
Closing Date shall be deemed abandoned and shall be Purchaser's property from
and after the Closing Date.
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1.3. Like Kind Exchange.
1.3.1. Purchaser acknowledges that Seller intends to exchange the Real
Property for other property to be held by Seller for productive use in trade or
business, or for investment, in an exchange (the "Exchange") which will qualify
for non-recognition of gain under Section 1031 of the Internal Revenue Code of
1986, as amended (the "Code"), and the Treasury Regulations promulgated
thereunder (the "Treasury Regula tions"). Purchaser further acknowledges that,
in connection with such Exchange, Seller may at any time assign all of its
rights, title and interest in, to and under this Agreement to a "qualified
intermediary" (as such term is defined in Treasury Regulation 1.1031(k)-1(g)(4))
(the "Qualified Intermediary") and that in the event of such assignment the
Purchaser shall pay the Purchase Price to the Qualified Intermediary. Seller
shall remain liable to Purchaser for its obligation hereunder notwithstanding
any such assignment.
1.3.2. Purchaser hereby covenants and agrees that it shall cooperate fully
with Seller and the Qualified Intermediary in connection with any Exchange,
including, without limitation, by taking such actions and executing such
documents as may reasonably be required in connection with an Exchange, provided
that Purchaser shall not be required to incur any additional expenses (other
than nominal expenses) or additional liabilities, unless Seller agrees to
reimburse or indemnify Purchaser with respect to the same.
1.4. License Agreement. On the Closing Date, Seller shall license (or cause
to be licensed by the party authorized to do so) to Purchaser the limited,
non-exclusive right to use the name "Woolworth" solely in connection with the
ownership of the Improvements upon the Broadway Parcel and otherwise in
accordance with the conditions set forth in the license agreement ("License
Agreement") attached hereto as Exhibit B.
ARTICLE II.
Purchase Price
2.1. Purchase Price. The purchase price for the Property shall be One
Hundred Forty Six Million Five Hundred Thousand Dollars ($146,500,000) (the
"Purchase Price"). No portion of the Purchase Price is attributable to the
Personal Property or the
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Leases. The Purchase Price, net of all prorations as provided for herein, shall
be paid by Purchaser as follows:
(i) Ten Million Dollars ($10,000,000) (together with all interest, if
any, earned thereon, the "Initial Deposit") shall be paid to
Skadden, Arps, Slate, Meagher & Flom LLP (the "Escrow Agent") by
wire transfer of immediately available federal funds
simultaneously with the execution and delivery of this Agreement
by Purchaser;
(ii) Five Million Dollars ($5,000,000) (together with all interest, if
any, earned thereon, the "Additional Deposit"; the Initial
Deposit and the Additional Deposit are, together, the "Deposit" )
shall be paid to the Escrow Agent by wire transfer of immediately
available federal funds on or before 3:00 p.m. on November 2,
1998 (the "Additional Deposit Payment Date") (time being of the
essence with respect thereto). In the event that Pur chaser shall
fail for any reason to so pay the Additional Deposit, then Seller
shall have the immediate right to terminate this Agreement and to
collect and retain the Deposit. Payment of the Additional Deposit
is being guaranteed by Steven C. Witkoff (the "Guarantor") in
accordance with the provisions of Article XVII hereof. The
Deposit shall be held in escrow and shall be payable in
accordance with Article III hereof; and
(iii)The balance of the Purchase Price (the "Balance of the Purchase
Price") shall be paid on the Closing Date by wire transfer of
immediately available federal funds to or as directed by Seller.
ARTICLE III.
Deposit
3.1. Deposit. Concurrently with the execution of this Agreement, and as a
condition precedent to the formation of this Agreement, Purchaser shall deposit
with the Escrow Agent the Initial Deposit, the receipt of which is hereby
acknowledged by Escrow Agent's execution hereof. The Initial Deposit (and, when
received, the Additional Deposit) shall be held in escrow, and not in trust, by
the Escrow Agent in an interest bearing account at Citibank, N.A, provided that
Purchaser provides Escrow Agent with Pur chaser's taxpayer identification
number. The Escrow Agent shall pay the Deposit to Seller at the Closing or
otherwise in accordance with this Agreement. All interest on the Deposit shall
belong to the party entitled to the Deposit hereunder, unless the Closing
occurs, in which case such interest shall belong 50% to Seller and 50% to
Purchaser.
3.2. Application of Deposit.
3.2.1. If the Closing occurs as contemplated hereunder, then the Deposit
shall be paid to Seller (or, in the case of an Exchange, to the Qualified
Intermediary).
3.2.2. In the event that the Closing does not occur as contemplated
hereunder because of a default by Purchaser under this Agreement, the Deposit
shall be paid to and retained by Seller.
3.2.3. In the event that the Closing does not occur as contemplated
hereunder because of a default by Seller under this Agreement, the Deposit shall
be paid to and retained by Purchaser.
3.2.4. If either party makes a demand upon the Escrow Agent for delivery of
the Deposit, the Escrow Agent shall give notice to the other party of such
demand. If a notice of objection to the proposed payment is not received from
the other party within seven (7) days after the giving of notice by the Escrow
Agent, the Escrow Agent is hereby authorized to deliver the Deposit to the party
who made the demand. If the Escrow Agent receives a notice of objection within
said seven (7) day period, or if for any other reason the Escrow Agent in good
faith elects not to deliver the Deposit, then the Escrow Agent shall continue to
hold the Deposit and thereafter pay it to the party entitled thereto when the
Escrow Agent receives (i) a notice from the objecting party withdrawing the
objection, (ii) a notice signed by both parties directing disposition of the
Deposit or (iii) a final judgment or order of a court of competent jurisdiction.
3.3. Escrow Agent. The parties further agree that:
3.3.1. Escrow Agent shall accept the Deposit with the understanding of the
parties that Escrow Agent is not a party to this Agreement except to the extent
of its specific responsibilities hereunder, and does not assume or have any
liability for the performance or non-performance of Purchaser or Seller
hereunder to either of them;
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3.3.2. The Escrow Agent shall be protected in relying upon the accuracy,
acting in reliance upon the contents, and assuming the genuineness of any
notice, demand, certificate, signature, instrument or other document which is
given to the Escrow Agent without verifying the truth or accuracy of any such
notice, demand, certificate, signature, instrument or other document;
3.3.3. The Escrow Agent shall not be bound in any way by any other
agreement or understanding between the parties hereto, whether or not the Escrow
Agent has knowledge thereof or consents thereto unless such consent is given in
writing;
3.3.4. The Escrow Agent's sole duties and responsibilities shall be to hold
and disburse the Deposit in accordance with this Agreement;
3.3.5. The Escrow Agent shall not be liable for any action taken or omitted
by the Escrow Agent in good faith and believed by the Escrow Agent to be au
thorized or within its rights or powers conferred upon it by this Agreement,
except for damage caused by the gross negligence, bad faith or wilful misconduct
of the Escrow Agent;
3.3.6. Upon the disbursement of the Deposit in accordance with this
Agreement, the Escrow Agent shall be relieved and released from any liability
under this Agreement;
3.3.7. The Escrow Agent may resign at any time upon at least ten (10) days
prior written notice to the parties hereto. If, prior to the effective date of
such resignation, the parties hereto shall all have approved, in writing, a
successor escrow agent, then upon the resignation of the Escrow Agent, the
Escrow Agent shall deliver the Deposit to such successor escrow agent. The
parties hereby acknowledge that Chicago Title Insurance Company (or any
subsidiary thereof that is a Qualified Intermediary) is an acceptable successor
escrow agent. Purchaser agrees to approve as a successor escrow agent any other
Qualified Intermediary proposed by Seller that is reasonably acceptable to
Purchaser. From and after such resignation and the delivery of the Deposit to
such successor escrow agent, the Escrow Agent shall be fully relieved of all of
its duties, responsibilities and obligations under this Agreement, all of which
duties, responsibilities and obligations shall be performed by the appointed
successor escrow agent. If for any reason the parties hereto shall not approve a
successor escrow agent within such period, the Escrow Agent may bring any
appropriate action or proceeding for leave to deposit the
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Deposit with a court of competent jurisdiction, pending the approval of a
successor es crow agent, and upon such deposit the Escrow Agent shall be fully
relieved of all of its duties, responsibilities and obligations under this
Agreement;
3.3.8. Seller and Purchaser hereby agree to, jointly and severally,
indemnify, defend and hold the Escrow Agent harmless from and against any
liabilities, damages, losses, costs or expenses incurred by, or claims or
charges made against, the Escrow Agent (including attorneys' fees, expenses and
court costs) by reason of the Escrow Agent's acting or failing to act in
connection with any of the matters contemplated by this Agreement or in carrying
out the terms of this Agreement, except as a result of the Escrow Agent's gross
negligence, bad faith or willful misconduct;
3.3.9. In the event that a dispute shall arise in connection with this
Agreement, or as to the rights of any of the parties in and to, or the
disposition of, the Deposit, the Escrow Agent shall have the right to (w) hold
and retain all or any part of the Deposit until such dispute is settled or
finally determined by litigation, arbitration or otherwise, or (x) deposit the
Deposit in an appropriate court of law, following which the Escrow Agent shall
thereby and thereafter be relieved and released from any liability or obligation
under this Agreement, or (y) institute an action in interpleader or other
similar action permitted by stakeholders in the State of New York, or (z)
interplead any of the parties in any action or proceeding which may be brought
to determine the rights of the parties to all or any part of the Deposit;
3.3.10. The Escrow Agent shall not have any liability or obligation for
loss of all or any portion of the Deposit by reason of the insolvency or failure
of the institution of depository with whom the escrow account is maintained; and
3.3.11. The parties hereto represent that prior to the negotiation and
execution of this Agreement they were advised that the Escrow Agent was
representing Seller as such party's attorney in connection with this Agreement
and the transaction referred to herein and the parties hereto covenant that they
shall not object, on the grounds of conflict of interest or otherwise, to the
Escrow Agent continuing to act as the attorney for Seller in connection with
this Agreement and the transaction contemplated herein, or to act as Seller's
attorney in connection with any dispute in connection herewith or any other
matter, as well as act as the Escrow Agent hereunder; provided, however, that
the Escrow Agent deposits the Deposit with a court of competent jurisdiction or
transfers the Deposit and all accrued interest thereon to a mutually agreeable
substitute escrow agent.
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ARTICLE IV.
Closing, Prorations and Closing Costs
4.1. Closing.
4.1.1. The closing of the purchase and sale of the Property (the "Clos
ing") shall be held at the offices of Skadden, Arps, Slate, Meagher & Flom LLP,
919 Third Avenue, New York, New York or at the offices of Purchaser's lender's
counsel, if requested by Purchaser's lender, at 10:00 a.m. local time on
December 31, 1998. The date of Closing is referred to in this Agreement as the
"Closing Date". In addition to any other adjournment rights afforded to the
Seller hereunder, Seller shall have the right, exercisable by giving not less
than ten (10) days prior written notice to Purchaser on any number of occasions
prior to the then scheduled Closing Date, to adjourn the Closing to any business
day designated by Seller in the period December 31, 1998 through January 28,
1999, both dates inclusive (time being of the essence with respect to any date
between January 15, 1998 and January 28, 1998, both dates inclusive, which is
designated by Seller upon not less than thirty (30) days prior written notice to
Purchaser).
4.1.2. Notwithstanding the provisions of Section 4.1.1, Seller shall have
the right, on thirty (30) days prior written notice to the Purchaser, to
accelerate the Closing Date to any business day occurring on or after September
14, 1998, and, in such event, Purchaser shall have the right to adjourn such
accelerated Closing Date one or more times for up to an aggregate of thirty (30)
days (time being of the essence with respect to such thirtieth (30th) day).
4.2. Prorations. All matters involving prorations or adjustments to be made
in connection with Closing and not specifically provided for in another Section
of this Agreement shall be adjusted in accordance with this Section 4.2. Except
as otherwise set forth herein, all items to be prorated pursuant to this Section
4.2 shall be prorated as of 12:01 A.M. on the Closing Date, with Purchaser to be
treated as the owner of the Property, for purposes of prorations of income and
expenses, on and after the Closing Date. Notwithstanding the foregoing, in the
event that the Purchase Price is not disbursed to or as directed by Seller (or,
in the case of an Exchange, to or as directed by the Qualified Intermediary) on
or before 3:00 p.m. (eastern time) on the Closing Date, then the Closing shall
be deemed to have occurred on the next business day and all adjustments
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shall be recomputed accordingly. Except as otherwise set forth herein, all
prorations shall be done in accordance with the customs with respect to title
closings recommended by The Real Estate Board of New York, Inc.
The following items shall be prorated:
4.2.1. Real Estate and Property Taxes. Real estate and personal property
taxes, business improvement district assessments and charges, vault charges and
special assessments, if any. Seller shall pay all real estate and personal
property taxes, business improvement district assessments and charges, vault
charges and special assess ments attributable to the Property through, but not
including, the Closing Date. If the tax rate, assessment and/or assessed value
for any of the foregoing items has not been set for the tax period in which the
Closing occurs, then the proration of such items shall be based upon the rate,
assessment and/or assessed value for the immediately preceding tax period and
such proration shall be adjusted in cash between Seller and Purchaser upon
presen tation of written evidence that the actual amount paid for the tax period
in which the Closing occurs differs from the amounts used in the Closing in
accordance with the provi sions of Section 4.2.13 hereof. Any discount received
for an early payment shall be prorated between Seller and Purchaser.
4.2.2. Insurance Premiums. There shall be no proration of Seller's
insurance premiums or assignment of Seller's insurance policies with respect to
the Property and Seller shall cancel all of its existing policies with respect
to the Property as of the Closing Date, except as provided in Article XI.
4.2.3. Utilities and Services. Purchaser and Seller hereby acknowl edge and
agree that the amounts of all telephone, electric, sewer, water, gas, steam and
other utility bills, trash removal bills, janitorial and maintenance service
bills and all other operating and administrative expenses relating to the
Property and allocable to the period prior to the Closing Date (other than such
items which are the obligation of a Tenant under its Lease) shall be determined
and paid by Seller before Closing, if possible, or shall be paid thereafter by
Seller or adjusted between Purchaser and Seller immediately after the same have
been determined. Seller shall have all base building meters read not more than
fifteen (15) days prior to the Closing Date. Purchaser shall cause all utility
services Purchaser desires to be placed in Purchaser's name as of the Closing
Date. All deposits, if any, furnished by Seller to any utility company or other
service provider shall continue to be owned by Seller.
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4.2.4. Base Rents. Base or fixed rents due under Leases shall be adjusted
on an if, as and when collected basis. If, on the Closing Date, any tenant under
a Lease (a "Tenant") (other than Venator Group, Inc. and its affiliates, which
for all purposes under this Agreement shall be deemed to be current in their
obligations under all of their Leases through the end of the month in which the
Closing Date occurs) is in arrears in the payment of such rent, then any amounts
received by Seller or Purchaser from any such Tenant after the Closing on
account of such rent (net of reasonable costs of collec tion, including
reasonable attorneys fees and disbursements) shall be applied in the following
order of priority: (i) first apportioned between Purchaser and Seller for the
month in which the Closing occurred, (ii) then to Purchaser for any amounts then
due to Pur chaser for any month or months following the month in which the
Closing occurred, and (iii) then to Seller for the period prior to the month
preceding the month in which the Closing occurred. If rents or any portion
thereof received by Seller or Purchaser after the Closing are payable to the
other party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and expenses of
collection thereof, shall be promptly paid to the other party. Seller shall have
the right, after Closing, to proceed against Tenants for delinquent rents
allocable solely to the period of Seller's ownership of the Property. Purchaser
agrees that it shall use commercially reasonable efforts to collect any such
delinquent rents allocable to the period of Seller's ownership of the Property,
but Purchaser shall not be obligated to commence any actions to dispossess any
of the Tenants (except that Purchaser shall continue any dispossession actions
against any Tenant currently in monetary default under its Lease (as set forth
on Schedule 2) if same was initiated by Seller prior to Closing for so long as
Seller continues to pay for the costs and expenses relating to such action). For
a one (1) year period subsequent to the Closing, Seller shall have the right,
from time to time, on prior written notice to Purchaser, to review Purchaser's
books and records with respect to the Property during ordinary business hours,
to ascertain the status of Purchaser's billing and collection of base and fixed
rents. No action which results in the compromising of any claim against any
Tenant with respect to base or fixed rents due under such Tenant's Lease for the
period prior to the Closing shall be made without Seller's prior written
approval, but Purchaser shall not be obligated to continue any actions against
any Tenant after Seller has rejected any good faith compromise reached by
Purchaser with any such Tenant which does not unfairly discriminate against
Seller's claims against such Tenant.
4.2.5. Additional Rents. If any Tenants are required to pay percentage
rents, escalation charges for increases in real estate taxes or operating
expenses, porter's wage increases, cost-of-living increases, charges for
electricity, water, cleaning or overtime
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services, "sundry charges" or other charges of a similar nature ("Additional
Rents"), the same shall be adjusted on an if, as and when collected basis. If
any Additional Rents are collected by Purchaser after the Closing Date which are
attributable in whole or in part to any period prior to the Closing, then
Purchaser shall promptly pay to Seller its proportion ate share thereof, less a
proportionate share of any reasonable attorneys' fees and costs and expenses of
collection thereof. With respect to any estimated Additional Rents paid or
payable by Tenants for any period prior to the Closing which, pursuant to the
applicable Lease, are to be recalculated after the Closing based upon actual
expenses and other relevant factors, (i) Seller agrees, with respect to such
adjustments which are in favor of any such Tenant, to reimburse Purchaser,
within fifteen (15) days after written demand and presentation to Seller of
documentation in support of such adjustments, for the amount of such adjustments
which Purchaser has paid or credited to such Tenant and (ii) Purchaser agrees,
with respect to such adjustments which are in favor of landlord, to pay to
Seller the amount of such adjustments which the Tenant pays to Purchaser, within
ten (10) days after receipt thereof by Purchaser. Purchaser shall indemnify,
defend and hold Seller harmless from and against any and all losses, damages,
costs and expenses (including reasonable attorneys fees and disbursements)
incurred by Seller as a result of any claims brought by any Tenant against
Seller with respect to adjustments for which Seller has made full payment to
Purchaser under clause (i) of the preceding sentence. Seller shall have the
right, after Closing, to proceed against Tenants for delinquent Additional Rent
allocable solely to the period of Seller's ownership of the Property. Purchaser
agrees that it shall use commercially reasonable efforts to collect any such
delinquent Additional Rents allocable to the period of Seller's ownership of the
Property but Purchaser shall not be obligated to commence any actions to
dispossess any of the Tenants (except that Purchaser shall continue any
dispossess actions against any Tenant currently in monetary default under its
Lease (as set forth on Schedule 2) if same was initiated by Seller prior to the
Closing for so long as Seller continues to pay for the costs and expenses
relating to such action. For a one (1) year period subsequent to the Closing,
Seller shall have the right, from time to time, on prior written notice to
Purchaser, to review Purchaser's books and records with respect to the Property
during ordinary business hours, to ascertain the status of Purchaser's billing
and collection of Additional Rents. No action which results in the compromising
of any claim against any Tenant with respect to Additional Rent due under such
Tenant's Lease for the period prior to the Closing shall be made without
Seller's prior written approval, but Purchaser shall not be obligated to
continue any actions against any Tenant after Seller has rejected any good faith
compromise reached by Purchaser with any such Tenant. The calculation of the
proration of Additional Rents hereunder shall be computed on a straight- line
basis for the calendar year in which the Closing occurs (except for Additional
Rents arising from submetered electric charges, which shall be computed based on
actual usage).
4.2.6. Tenant Security Deposits. Security Deposits held by Seller (to the
extent, subject to the provision of this Section 4.2.6, not applied by Seller
pursuant to any Lease) shall be turned over by Seller to Purchaser at the
Closing by crediting such amount (less the amount of any interest or
administrative charges for the period prior to the Closing which the landlord
under such Lease would be entitled to retain) to Purchaser. No allocation shall
be made of Security Deposits applied by Seller pursuant to any Lease, and Seller
may retain such amounts; provided, however, that Seller shall not apply any
Security Deposits during the thirty (30) days prior to the Closing or to cure
any non-monetary Tenant defaults. Security Deposits (net the reasonable costs,
if any, of realizing upon the same, including reasonable attorneys fees and
disbursements) applied after the Closing Date shall be applied in the following
order of priority: (i) first apportioned between Purchaser and Seller on account
of amounts due under the applicable Lease for the month in which the Closing
occurred, (ii) then to Purchaser for any amounts then due to Pur chaser on
account of amounts due under the applicable Lease for any month or months
following the month in which the Closing occurred, and (iii) then to Seller on
account of amounts due under the applicable Lease for the period prior to the
month preceding the month in which the Closing occurred. At Closing, Purchaser
shall deliver to Seller a receipt for any Security Deposits turned over by
Seller to Purchaser and Purchaser shall indemnify Seller with respect thereto
pursuant to, and in accordance with, the Assignment and Assumption of Leases (as
hereinafter defined).
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4.2.7. Brokerage Commissions/Tenant Improvements
(i) Except as set forth below, Seller shall be responsible for all leasing
and brokerage commissions, tenant improvement costs and expenses and tenant
"buy-out" or lease surrender costs with respect to the Leases executed prior to
the date hereof (the "Leasing Cut-off Date");
(ii) With respect to the Leases executed prior to the Leasing Cut-off Date,
and only to the extent that such costs are attributable to the exercise, after
the Leasing Cut-off Date, of a lease renewal or expansion option which is
contained in the applicable Lease on the date hereof, (a) Purchaser shall be
responsible for all tenant improvement costs and expenses and tenant "buy-out"
or lease surrender costs, (b) Purchaser shall be responsible for the first
$400,000, and any amounts exceeding
$650,000, with respect to any leasing and brokerage commissions, and (c) Seller
shall be responsible for any amounts exceeding $400,000, to a maximum of
$250,000, with respect to any leasing and brokerage commissions. Any such
brokerage commissions or tenant improvement costs and expenses payable by Seller
or Purchaser pursuant to this Section 4.2.7 shall be payable by Seller or
Purchaser only when such commissions, costs and expenses become due and payable
pursuant to the terms of the respective brokerage agreements or Leases.
(iii) Purchaser shall be responsible for all leasing and brokerage commis
sions, tenant improvement costs and expenses and tenant "buy-out" or lease
surrender costs with respect to all Leases executed on or after the Leasing
Cut-off Date in accor dance with Section 8.5.
4.2.8. Employees. Salaries, wages, vacation pay, bonuses and any other
fringe benefits (including, without limitation, social security, unemployment
compensation, employee disability insurance, sick pay, welfare and pension fund
contributions, payments and deposits, if any) of all Employees (as hereinafter
defined) shall be the sole obligation of Seller, except as set forth in Article
XV hereof.
4.2.9. Fuel. The value of fuel stored on the Property by Seller, if any, at
Seller's most recent cost, including any taxes, on the basis of a reading made
within ten (10) days prior to the Closing by Seller's supplier, shall be paid
for by Purchaser.
4.2.10. Contracts. Charges and payments under transferable Contracts or
permitted renewals or replacements thereof, but only to the extent such
Contracts are assignable and are actually assigned to Purchaser at Closing.
4.2.11. Permit Fees. Fees and other amounts payable under the Licenses and
Permits, but only to the extent same are assignable and are actually assigned to
Purchaser at Closing pursuant to this Agreement.
4.2.12. Inventory. The value of all inventory and supplies in unopened
containers usable in connection with the management, maintenance or operation of
the Improvements and located on the Real Property on the date of Closing, if
any, at Seller's most recent cost, including any taxes, shall be paid for by
Purchaser.
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4.2.13. Method of Calculation. For purposes of calculating prorations,
Purchaser shall be deemed to be the owner of the Property, and therefore
entitled to the income therefrom and responsible for the expenses thereof for
the entire day upon which the Closing occurs. All such prorations shall be made
on the basis of the actual number of days of the month which shall have elapsed
as of the day of the Closing and based upon the actual number of days in the
month and a three hundred sixty five (365) day year. The amount of such
prorations shall be initially performed at Closing but shall be subject to
adjustment in cash after the Closing as and when complete and accurate
information becomes available, if such information is not available at the
Closing. Seller and Purchaser agree to cooperate and use their best efforts to
make such adjustments within sixty (60) days after the Closing. Except as set
forth in this Section 4.2, all items of income and expense which accrue for the
period prior to the Closing will be for the account of Seller and all items of
income and expense which accrue for the period on and after the Closing will be
for the account of Purchaser.
4.2.14. Survival. The provisions of this Section 4.2 shall survive the
Closing.
4.3. Transfer Taxes. Seller shall pay (or shall credit Purchaser for) all
transfer taxes imposed upon the conveyance of the Real Property hereunder
pursuant to Section 1402 of the New York State Tax Law and Title 11 of Chapter
21 of the Administrative Code of the City of New York (the "Transfer Taxes").
Purchaser shall file all neces sary tax returns with respect to all such
Transfer Taxes and, to the extent required by applicable law, Seller will join
in the execution of any such Tax Returns.
4.4. Closing Costs. Purchaser shall pay all recording fees and charges
associ ated with the recordation of the Deed, other than the Transfer Taxes,
which are payable by Seller under Section 4.3. Seller shall pay all fees and
commissions due to the Broker in accordance with Section 13.1. Purchaser shall
pay all title insurance premiums, title examination fees and survey costs
incurred by Purchaser. All other costs, fees, expenses and charges of any kind
incident to the sale and conveyance of the Property from Seller to Purchaser,
including attorneys' fees and consultants' fees, shall be borne by the party
incurring the same.
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ARTICLE V.
Title and Survey Matters
5.1. Title.
5.1.1. Updated Commitment and Survey. Purchaser shall, at its sole cost and
expense, within five (5) business days from the date hereof, order a title
insurance commitment for an owner's policy of title insurance for the Real
Property (the "Pur chaser's Title Commitment") from TitleServe Agency of New
York City, Inc. (the "Title Company") and such other title insurance companies
as co-insurer or re-insurer as Purchaser may elect, setting forth the status of
title to the Real Property and any defects in or objections or exceptions to
title to the Real Property, together with true and correct copies of all
instruments giving rise to such defects, objections or exceptions. Purchaser
shall cause the Title Company to forward a copy of the Purchaser's Title
Commitment and any updates thereof to Seller's attorney simultaneously with the
issuance thereof to Purchaser. Seller has delivered to Purchaser copies of three
surveys of the parcels comprising the Real Property initially prepared by J.
George Hollerith (collectively, the "Survey"), dated July 13, 1906, March 24,
1911 and June 19, 1920, respectively, all most recently updated as of June 12,
1998, by Manhattan Surveying, P.C.
5.1.2. Title Objections. If the Purchaser's Title Commitment, any updates
to the Survey or any further update of either shall reveal or disclose any
defects, objections or exceptions in the title to the Real Property which
Purchaser is not required to accept or have been deemed to have accepted under
the terms of this Agreement ("Title Objections"), then, within 20 business days
after Purchaser's receipt of the Purchaser's Title Commitment, updated Survey or
any further update of either first revealing any such Title Objection, but in no
event later than fifteen (15) days prior to the Closing Date (unless such Title
Objection is first disclosed by an update to the Purchaser's Title Commitment or
Survey first delivered to Purchaser within such fifteen (15) day period, in
which case Purchaser shall notify Seller of such Title Objection as soon as
reasonably practicable), Purchaser shall notify Seller of such Title Objections
in writing. If Purchaser does not timely notify Seller in writing of any such
Title Objections, then Purchaser shall be deemed to have accepted the state of
title to the Real Property reflected in the Purchaser's Title Commitment, the
updated Survey or any further updates of either received by Purchaser and to
have waived any claims or defects which it might otherwise have raised with
respect
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to the matters reflected therein and the same shall be and shall be deemed to be
Permitted Exceptions for all purposes of this Agreement.
5.1.3. Elimination of Liens. If any Title Objections appear in the
Purchaser's Title Commitment, the Survey or any updates thereof, then Seller
may, at its election, undertake to eliminate such Title Objections, it being
agreed that Seller shall have no obligation to incur any expense in connection
with curing such Title Objections, except that Seller shall cure and eliminate
all Title Objections which were caused by, resulted from or arose out of (1)
judgments against Seller, (2) a grant by Seller of a mortgage or other security
interest, (3) items which can be satisfied by payment of a liquidated amount or
(4) Seller's affirmative acts after the date hereof; provided, however, that
Seller's obligation to cure such judgments as described in clause 1 or 3 of this
sentence shall be limited to judgments in an amount not to exceed $10,000,000.
Seller, in its discretion, may adjourn the Closing for up to sixty (60) days in
the aggregate in order to eliminate such Title Objections. In lieu of
eliminating any Title Objections which Seller may elect, or be required,
pursuant to the express terms hereof, to eliminate under this Agreement, Seller
may deposit with the Title Company such amount of money as may be determined by
the Title Company as being sufficient to induce the Title Company, without the
payment of any additional premium by Purchaser, to omit such Title Objections
from Purchaser's title insurance policy. If Seller is unable to so eliminate or
omit all such Title Objections in accordance with the terms of this Agreement on
or before such adjourned date for the Closing, then Purchaser shall elect either
to (i) terminate this Agreement by notice given to Seller, in which event the
provisions of Section 5.2 shall apply, or (ii) accept title to the Property
subject to such Title Objections and receive no credit against or reduction of
the Purchase Price, except that Purchaser shall be entitled to a credit against
the Purchase Price in an amount equal to $10,000,000.
5.1.4. Payment from Balance of Purchase Price. Any unpaid taxes, water
charges, sewer rents and assessments, together with the interest and penalties
thereon to a date not more than five (5) business days following the Closing
Date (in each case subject to any applicable apportionment), and any mortgages
or other liens created by Seller which can be satisfied by payment of a
liquidated amount and judgments against Seller, which Seller is obligated to pay
and discharge pursuant to the terms of this Agree ment, together with the cost
of recording or filing any instruments necessary to discharge such liens and
such judgments, may be paid out of the Balance of the Purchase Price pay able at
the Closing. Seller hereby agrees to deliver to Purchaser, on the Closing Date,
instruments in recordable form sufficient to discharge any such mortgages or
other liens
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which can be satisfied by payment of a liquidated amount and judgments, which
Seller is obligated to pay and discharge pursuant to the terms of this
Agreement. Upon request of Seller, delivered to Purchaser no later than two (2)
business days prior to the Closing, Purchaser shall provide at the Closing
separate certified checks, or bank checks for the foregoing payable to the order
of the holder of any such lien, charge, or judgment, or a wire transfer of
federal funds as Seller shall direct, in an aggregate amount not to exceed the
Balance of the Purchase Price, as adjusted for apportionments required under
this Agreement, payable at the Closing.
5.1.5. Affidavits. If the Purchaser's Title Commitment discloses judgments,
bankruptcies or other returns against other persons having names the same as or
similar to that of Seller, Seller, on request, shall deliver to the Title
Company affidavits showing that such judgments, bankruptcies or other returns
are not against Seller, or any affiliates. Upon request by Purchaser, Seller
shall deliver any such affidavits and documen tary evidence as are reasonably
required by the Title Company in order to issue its owner's policy of title
insurance to Purchaser free and clear of matters other than the Permitted
Exceptions.
5.1.6. Permitted Exceptions. Seller shall convey and Purchaser shall accept
fee simple title to the Real Property subject only to those matters set forth on
Exhibit C attached hereto (collectively, the "Permitted Exceptions") and such
other matters as may be deemed Permitted Exceptions under Section 5.1.2.
5.2. Seller's Inability to Convey Title. If Seller is unable to convey
title in accordance with the terms of this Agreement and, pursuant to Section
5.1.3, Purchaser elects to terminate this Agreement, the Deposit shall be
returned to Purchaser, and this Agreement shall terminate and neither party to
this Agreement shall have any further rights or obligations hereunder other than
the Surviving Termination Obligations.
5.3. Violations. Purchaser agrees to purchase the Property subject to any
and all notes or notices of violations of law, or municipal ordinances, orders,
designations or requirements whatsoever noted in or issued by any federal,
state, municipal or other governmental department, agency or bureau or any other
governmental authority having jurisdiction over the Property (collectively,
"Violations"), or any lien imposed in connec tion with any of the foregoing, or
any condition or state of repair or disrepair or other matter or thing, whether
or not noted, which, if noted, would result in a violation being placed on the
Property provided the same do not arise from a default by Seller in the
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performance or observance of its obligations under Section 8.1. Seller shall
have no duty to remove or comply with or repair any condition, matter or thing,
whether or not noted, which, if noted, would result in a violation being placed
on the Property provided the same do not arise from a default by Seller in the
performance or observance of its obligations under Section 8.1. Provided the
same do not arise from a default by Seller in the perfor mance or observance of
its obligations under Section 8.1, Seller shall have no duty to remove or comply
with or repair any of the aforementioned Violations, liens or other conditions,
and Purchaser shall accept the Property subject to all such Violations and
liens, the existence of any conditions at the Property which would give rise to
such Violations or liens, if any, and any governmental claims arising from the
existence of such Violations and liens, in each case without any abatement of or
credit against the Purchase Price. Notwith standing the foregoing, but subject
to Section 5.1.3, to the extent that any Violations shall constitute a lien upon
the Property, Seller shall either satisfy or discharge the same or cause the
Title Company to omit the same from Purchaser's title insurance policy.
Notwithstand ing anything to the contrary, if the cost to cure the Violations on
the Closing Date shall exceed $10,000,000, then Purchaser shall have the right
to terminate this Agreement by giving notice thereof to Seller on or prior to
the Closing Date and, unless Seller agrees (by notice to Purchaser given within
ten (10) days of Purchaser's termination notice) to pay to Purchaser the amount
in excess of $10,000,000 necessary to cure such Violations, the Deposit shall be
returned to Purchaser, this Agreement shall terminate and neither party to this
Agreement shall have any further rights or obligations other than the surviving
Termina tion Obligations.
ARTICLE VI.
Representations and Warranties of Seller
6.1. Seller's Representations. Seller represents and warrants that the
following matters are true and correct as of the date hereof with respect to the
Property:
6.1.1. Authority. Seller is a corporation duly organized and validly exist
ing under the laws of the State of New York. This Agreement has been duly
authorized, executed and delivered by Seller, is the legal, valid and binding
obligation of Seller, and does not violate any provision of any agreement or
judicial order to which Seller is a party or to which Seller is subject. All
documents to be executed by Seller which are to be delivered at Closing will, at
the time of Closing, be duly authorized, executed and delivered
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by Seller, be legal, valid and binding obligations of Seller, and will not
violate any provision of any agreement or judicial order to which Seller is a
party or to which Seller is subject.
6.1.2. Bankruptcy or Debt of Seller. Seller has not made a general as
signment for the benefit of creditors, filed any voluntary petition in
bankruptcy or suffered the filing of an involuntary petition by Seller's
creditors, suffered the appointment of a receiver to take possession of all, or
substantially all, of Seller's assets, suffered the attachment or other judicial
seizure of all, or substantially all, of Seller's assets, admitted in writing
its inability to pay its debts as they come due or made an offer of settlement,
extension or composition to it creditors generally.
6.1.3. Foreign Person. Seller is not a foreign person within the meaning of
Section 1445(f) of the Code, and Seller agrees to execute any and all documents
necessary or reasonably required by the Internal Revenue Service or Purchaser in
connection with such declaration.
6.1.4. Leases; Brokerage Commissions.
(i) Seller has delivered or made available to Purchaser true and correct
copies of the Leases. Exhibit D attached hereto contains a description of all
Leases and tenancies and all amendments or extensions thereto affecting the
Property as of the date of this Agreement and to which Seller is a party or
bound. Except as set forth on Exhibit D, there are no leases, licenses or other
occupancy agreements affecting the Property to which Seller is a party or bound.
Except with respect to the Venator Lease or any other Lease with any affiliate
of Seller, no representation is made as to (a) possible assignments of any of
the Leases not consented to by Seller or (b) any subleases or underlettings
under any of the Leases not consented to by Seller.
(ii) To Seller's knowledge, Seller has not received any written notice of a
default on the part of Seller under any of the Leases and to Seller's knowledge,
Seller is not in material default under any of the Leases. Except as set forth
on Schedule 2 attached hereto, Seller has not sent any notices of default (which
remain outstanding) to any Tenant and, to Seller's knowledge, no material
default by any Tenant exists, except as set forth on Schedule 2.
(iii) Except with respect to the Venator Lease or any other Lease with any
affiliate of Seller, Seller does not warrant that any particular Lease will be
in force or effect
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at the Closing or that the Tenants will have performed their obligations
thereunder. Except for the Venator Lease or any other Lease with any affiliate
of Seller, the termination of any Lease prior to the Closing shall not affect
the obligations of Purchaser under this Agree ment, or entitle Purchaser to an
abatement of or credit against the Purchase Price or give rise to any claim on
the part of Purchaser against Seller, unless such termination results from
Seller's breach of such Lease or the terms of this Agreement.
(iv) Commissions payable under any brokerage agreements shall be adjusted
and prorated as set forth in Section 4.2.7.
6.1.5. Contracts. Seller has delivered or made available to Purchaser true
and complete copies of the Contracts. To Seller's knowledge, there are no
contracts or agreements other than those listed on Schedule 4 to which the
Property is subject and which would remain in effect after the Closing Date.
6.1.6. Condemnation. Seller has not received any written notice of any
existing, pending or contemplated condemnation, eminent domain or similar
proceeding with respect to the Real Property, or any portion thereof.
6.1.7. Tax Appeal Proceedings. Except as set forth on Schedule 5 attached
hereto, Seller has not filed, and has not retained anyone to file, notices of
protest against, or to commence actions to review, real property tax assessments
against the Real Property.
6.1.8. Permits and Licenses. Seller has delivered or made available to
Purchaser true and complete copies of the Permits and Licenses (to the extent
the same are in Seller's possession). To Seller's knowledge, Seller has received
no written notice (other than written notices that have been subsequently
rescinded) and Seller has no knowledge that any of the Permits and Licenses are
not in full force and effect or that there is a violation of such Permits and
Licenses. Seller will pay all fees which are due in connection with the Permits
and Licenses for the period prior to the Closing. Purchaser acknowledges that
the Improvements located on the Broadway Parcel are not covered by a certificate
of occupancy.
6.1.9. Insurance Policies. Schedule 6 annexed hereto and made a part hereof
is a true, correct and complete schedule of all insurance policies maintained by
Seller with respect to the Property and the amount of coverage afforded by each
such
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policy. All premiums due (or in the event that such premiums are payable in
installments, all installments of such premium payments due) on such insurance
policies have been fully paid. To Seller's knowledge, Seller has not received
any written notice nor does Seller have any knowledge that it is in default
under any insurance policy and to the best of Seller's knowledge, Seller has not
received any written request for the performance of any work or alteration with
respect to the Property from any insurance company or Board of Fire
Underwriters.
6.1.10. Legal Action Against Seller. Except for matters which Seller
anticipates are fully covered by insurance and/or noted on Schedule 7, there are
no judgments, orders, or decrees of any kind against Seller unpaid or
unsatisfied of record or otherwise. There is no action, suit or other legal or
administrative agency action relating to the Property which would adversely
affect the Property for its present use or affect Seller's ability to perform
its obligations under this Agreement, nor does Seller have any knowl edge of any
threatened legal action, suit or other legal or administrative proceeding
relating to the Property.
6.1.11. Rent Roll. Attached hereto as Exhibit E is a rent roll for the
Property (the "Rent Roll") listing: all Tenants as of the date hereof, the base
rent and Additional Rent billed to Tenants during the months of June and July,
1998 and the Security Deposit held (which is the amount required to be held
pursuant to the applicable Leases) by Seller with respect to each Tenant as of
the date hereof. The information set forth in the Rent Roll is true and correct
in all material respects. With respect to any monetary amounts described in the
Rent Roll (other than Security Deposits), the term "true and correct in all
material respects" shall be construed to mean that, to the extent that the Rent
Roll overstates or understates the actual amounts of such items, the net annual
adverse economic effect on Purchaser of such overstatements or understatements
in the aggregate does not exceed an amount equal to $250,000 (the "Threshold
Economic Effect"). The representations and warranties and provisions of this
Section 6.1.11 (other than with respect to Security Deposits) shall expire upon
the close of business on June 24, 1998, and shall thereafter be of no further
force or effect, provided, however, that in the event that Seller receives a
notice from Purchaser prior to such date as a result of inaccu racies in the
representations contained in this Section which create a Threshold Economic
Effect, Seller shall pay to Purchaser monthly (from and after the Closing) one
twelfth (1/12) of the annual amount over the five (5) period following the
Closing Date by which the actual annual overstatement exceeds the Threshold
Economic Effect. The calculation of the annual payment due pursuant to the
preceding sentence shall be based upon the terms
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of the Leases with respect to which the overstatement relates on the Closing
Date. In addition, any increases in rent pursuant to the applicable Lease after
the date hereof shall be excluded in calculating overstatements. For example, if
a portion of the overstatement relates to a Lease which by its terms expires two
years from the Closing Date, the overstatement shall not include the economic
effect of such lease in calculating the annual payment due in the third, fourth
and fifth years from the Closing Date.
6.1.12. Employees. Attached hereto as Schedule 8 is a listing of all
employees employed by Seller at the Real Property on the date hereof whose
duties are restricted to the management, maintenance or operation of the
Improvements and the other Property the "Employees"), together with their
respective salaries, wages, vacation pay and other fringe benefits.
6.1.13. Transfer to Seller. The Property has been transferred to Seller by
the immediately prior owner of the Property prior to the date hereof.
6.2. Seller's Knowledge. For purposes of this Agreement and any document
delivered at Closing, whenever the phrases "to Seller's knowledge", "to the
current, actual knowledge of Seller" or the "knowledge" of Seller and/or Venator
Group, Inc. or words of similar import are used, they shall be deemed to refer
to the actual knowledge only of Seller, Venator Group, Inc., and/or any
affiliate or predecessor of Seller or Venator Group, Inc. and not any implied,
imputed or constructive knowledge, without any inde pendent investigation having
been made or any implied duty to investigate.
6.3. Change in Representation/Waiver. Notwithstanding anything to the
contrary contained herein, Purchaser acknowledges that Purchaser shall not be
entitled to bring any action after the Closing Date based on any representation
made by Seller in this Article VI to the extent that, prior to Closing,
Purchaser shall have or shall obtain actual knowledge (and not merely any
implied, imputed or constructive knowledge, without any independent
investigation having been made or any implied duty to investigate) of any
information that was contradictory to such representation or warranty. In
furtherance thereof, Purchaser and Seller expressly agree that Seller shall have
no liability with respect to any of the foregoing representations and warranties
to the extent that, prior to the Closing, Purchaser obtains actual knowledge
(and not merely any implied, imputed or constructive knowledge, without any
independent investigation having been made or any implied duty to investigate)
(from whatever source, including, without limitation, any property manager, any
materials furnished to Purchaser, the Estoppel Certificates,
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Purchaser's due diligence tests, investigations and inspections of the Property,
or written disclosure by Seller or Seller's agents and employees) that renders
any of the foregoing representations and warranties untrue or incorrect, and
Purchaser nevertheless consum mates the transaction contemplated by this
Agreement.
6.4. Survival. The express representations and warranties made in this
Agree ment by Seller shall not merge into any instrument of conveyance delivered
at the Closing and all of the representations and warranties made in this
Agreement by Seller (other than those set forth in Section 6.1.11, which shall
expire upon the close of business on June 24, 1998 and be of no further force or
effect thereafter except as provided therein) shall survive the Closing for a
period of six (6) months; provided, however, that any action, suit or proceeding
with respect to the truth, accuracy or completeness of such representations and
warranties shall be commenced, if at all, on or before the date which is seven
(7) months after the date of the Closing and, if not commenced on or before such
date, thereafter shall be void and of no force or effect. The terms and
provisions of this Section 6.4 shall survive the Closing.
6.5. Limitation of Liability. Notwithstanding anything to the contrary or
incon sistent in this Agreement or in any of the agreements, certificates or
affidavits delivered by Seller pursuant to this Agreement, except with respect
to the matters covered under Section 4.2.7 hereof (i) Seller shall have no
liability for any particular loss, claim, cost or expense suffered or incurred
by Purchaser as a result of the inaccuracy of any of the representations or
warranties of Seller hereunder and/or under any of the agreements, certificates
or affidavits of Seller set forth in or delivered pursuant to this Agreement if
the same shall have a monetary value (or be in a monetary amount claimed) of
less than Twenty-Five Thousand Dollars ($25,000) and (ii) the aggregate
liability of Seller arising pursuant to or in connection with the
representations and warranties of Seller and/or the agreements or certificates
or affidavits of Seller set forth in or delivered pursuant to this Agreement
shall not exceed Ten Million Dollars ($10,000,000). Purchaser expressly waives,
relinquishes and releases any right of rescission it may have against Seller
after the Closing as a result of Seller's breach of representation or warranty.
Notwithstanding anything to the contrary, Seller shall indemnify Purchaser and
Purchaser shall indemnify Seller for any and all leasing commissions that are
due with respect to any lease renewal or expansion and are not paid by the
indemnifying party in accordance with Section 4.2.7. The terms and provisions of
this Section 6.5 shall survive Closing and/or termination of this Agreement.
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6.6. "AS IS" Sale. Subject only to Seller's covenants, representations,
warranties and indemnifications in this Agreement, Purchaser shall purchase the
Property in its "AS IS" condition at the Closing Date, subject to all latent and
patent defects (whether physical, financial or legal, including title defects),
based solely on Purchaser's own inspec tion, analysis and evaluation of the
Property and not in reliance on any records or other information obtained from
Seller or on Seller's behalf. Purchaser acknowledges that it is not relying on
any statement or representation (other than representations, warranties,
covenants and indemnifications contained in this Agreement) that has been made
or that in the future may be made by Seller or any of Seller's employees,
agents, attorneys or repre sentatives concerning the condition of the Property
(whether relating to physical conditions, operation performance, title, or legal
matters).
ARTICLE VII.
Representations and Warranties of Purchaser
Purchaser represents and warrants to Seller that the following matters are
true and correct as of the date hereof.
7.1. Authority. Purchaser is a limited liability company duly organized and
validly existing under the laws of the State of New York. This Agreement has
been duly autho rized, executed and delivered by Purchaser, is the legal, valid
and binding obligation of Purchaser, and does not violate any provision of any
agreement or judicial order to which Purchaser is a party or to which Purchaser
is subject. All documents to be executed by Purchaser which are to be delivered
at Closing will, at the time of Closing, be duly authorized, executed and
delivered by Purchaser, be legal, valid and binding obligations of Purchaser,
and will not violate any provision of any agreement or judicial order to which
Purchaser is a party or to which Purchaser is subject.
7.2. Bankruptcy or Debt of Purchaser. Purchaser represents and warrants to
Seller that Purchaser has not made a general assignment for the benefit of
creditors, filed any voluntary petition in bankruptcy or suffered the filing of
an involuntary petition by Purchaser's creditors, suffered the appointment of a
receiver to take possession of all, or substantially all, of Purchaser's assets,
suffered the attachment or other judicial seizure of all, or substantially all,
of Purchaser's assets, admitted in writing its inability to pay its debts
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as they come due or made an offer of settlement, extension or composition to its
creditors generally.
7.3. No Financing Contingency. It is expressly acknowledged by Purchaser
that this transaction is not subject to any financing contingency and that no
financing for this transaction shall be provided by Seller. Purchaser has or
will have at the Closing Date, sufficient cash, available lines of credit or
other sources of immediately good funds to enable it to make payment of the
Purchase Price and any other amounts to be paid by it hereunder.
7.4. Purchaser's Acknowledgment. Purchaser acknowledges and agrees that,
except as expressly provided in this Agreement, Seller has not made, does not
make and specifically disclaims any representations, warranties, promises,
covenants, agreements or guaranties of any kind or character whatsoever, whether
express or implied, oral or written, of, as to, concerning or with respect to
(a) the nature, quality or condition of the Property, including, without
limitation, the water, soil and geology, (b) the income to be derived from the
Property, (c) the suitability of the Property for any and all activities and
uses which Purchaser may conduct thereon, (d) the compliance of or by the
Property or its operation with any laws, rules, ordinances, designations or
regulations of any applicable governmental authority or body, including, without
limitation, the Americans with Disabili ties Act, any applicable federal, state
or local landmark designations, and any rules and regulations promulgated under
or in connection with any of the foregoing, (e) the habit ability,
merchantability or fitness for a particular purpose of the Property, (f) the
current or future real estate tax liability, assessment or valuation of the
Property, (g) the availability or non-availability or withdrawal or revocation
of any benefits or incentives conferred by any federal, state or municipal
authorities, or (h) any other matter with respect to the Property, and
specifically that Seller has not made, does not make and specifically disclaims
any representations regarding solid waste, as defined by the U.S. Environmental
Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or
existence, in or on the Property, of any hazardous substance, as defined by the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, and applicable state laws, and regulations promulgated thereunder.
Purchaser further acknowledges and agrees that, except as expressly provided in
this Agreement, having been given the oppor tunity to inspect the Property,
Purchaser is relying solely on its own investigation of the Property and not on
any information provided or to be provided by Seller. Purchaser further
acknowledges and agrees that any information provided or to be provided with
respect to the Property was obtained from a variety of sources and that Seller,
except as
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otherwise provided herein, has not made any independent investigation or
verification of such information. Purchaser further acknowledges and agrees
that, except as expressly provided in this Agreement, and as a material
inducement to the Seller's execution and delivery of this Agreement, the sale of
the Property as provided for herein is and on an "as is, where is" condition and
basis. Purchaser acknowledges, represents and warrants that Purchaser is not in
a significantly disparate bargaining position with respect to Seller in
connection with the transaction contemplated by this Agreement; that Purchaser
freely and fairly agreed to this waiver as part of the negotiations for the
transaction contemplated by this Agreement; and that Purchaser is represented by
legal counsel in connection with this transaction and Purchaser has conferred
with such legal counsel concerning this waiver. The terms and provisions of this
Section 7.4 shall survive the Closing and/or termination of this Agreement.
7.5. Survival. The express representations and warranties made in this
Agree ment by Purchaser shall not merge into any instrument or conveyance
delivered at the Closing and all of the representations and warranties made in
this Agreement by Purchaser shall survive the Closing for a period of six (6)
months; provided, however, that any action, suit or proceeding with respect to
the truth, accuracy or completeness of all such represen tations and warranties
shall be commenced, if at all, on or before the date which is six (6) months
after the date of the Closing and, if not commenced on or before such date,
thereafter shall be void and of no force or effect. The terms and provisions of
this Section 7.5 shall survive the Closing.
ARTICLE VIII.
Seller's Interim Operating Covenants
8.1. Operations. Seller agrees to continue to operate, manage and maintain
the Improvements through the Closing Date or the termination of this Agreement
in the ordinary course of Seller's business and substantially in accordance with
Seller's present practice, subject to ordinary wear and tear and further subject
to Article XI of this Agreement. Notwithstanding the foregoing, Seller shall
only be responsible for one-half (1/2) of the cost of the facade repairs to the
Improvements, up to a maximum of $450,000 ("Seller's Share"), and Purchaser
agrees on the Closing Date to assume and reimburse Seller for any and all
liabilities and obligations of Seller with respect to such repairs above
Seller's Share under any contract with respect to such repairs approved by
Seller and
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Purchaser, whether arising prior to or after the Closing Date. Seller's and
Purchaser's consent shall be required to approve any contractors and agreements
necessary for the completion of such repairs, which consent shall not be
unreasonably withheld.
8.2. Maintain Insurance. Seller agrees to maintain until the Closing Date
or the termination of this Agreement the insurance on the Property which is at
least equivalent in all material respects to the insurance policies identified
in Schedule 6.
8.3. Personal Property. Seller agrees not to transfer to any third party or
remove any Personal Property from the Improvements after the date hereof, except
for repair or replacement thereof and except in the case of any termination of
this Agreement. Any items of Personal Property replaced after the date hereof
shall be promptly installed prior to Closing and shall be of substantially
similar quality to the item of Personal Property being replaced, subject to
Section 8.1.
8.4. No Sales. Except for the execution of tenant leases pursuant to
Section 8.5 and except in the case of any termination of this Agreement, Seller
agrees that it shall not convey any interest in the Property to any third party.
8.5. Tenant Leases. Seller shall not, from and after the date hereof and
until the termination of this Agreement, (i) modify, renew or waive any material
rights under the Leases or grant any consent under the Leases, (ii) terminate
any Lease except by reason of a default by the Tenant thereunder or as required
by law, (iii) enter into a new tenant lease, or (iv) accept a surrender,
termination or cancellation of any Lease by the Tenant thereun der, except if
Seller's consent is not required in accordance with the terms of such Lease or
as required by law, in each case without the prior written approval of
Purchaser. If Purchaser approves of Seller's entering into a new tenant lease,
then Purchaser shall pay to Seller on the Closing Date, in the same manner as
the Purchase Price the following, to the extent actually approved by Purchaser:
(i) the amount of the brokerage commission due in connection with such lease,
(ii) the cost of any tenant improvements to be performed by the landlord under
the terms of such lease, and (iii) the amount of any cash work allow ances
required to be given by the landlord to the tenant under the terms of such lease
(the "Letting Expenses"), to the extent actually paid by Seller on or before the
Closing Date in accordance with agreements approved by Purchaser. Except as set
forth in Section 10.2.1, Purchaser and Seller acknowledge that Seller shall be
required to pay all Letting Expenses relating to the Venator Lease. Upon
Seller's execution and delivery of any such lease approved by Purchaser
(including, without limitation, the Venator Lease), the same
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shall be and be deemed to be a Lease for all purposes under this Agreement.
Seller shall deliver to Purchaser copies of all default notices delivered to or
received from Tenants promptly after such delivery or receipt.
8.6. Reserved.
8.7. Tenant Estoppels. Seller shall promptly deliver to each Tenant for
such Tenant's execution an estoppel certificate certified to Purchaser (each, an
"Estoppel Certificate") substantially in the form of the estoppel certificate
attached to each such Tenant's Lease, or, with respect to any Lease that does
not include a form of estoppel certificate, an estoppel certificate which
substantially incorporates the estoppel provisions expressly contained in any
such Lease. Seller shall cause all of its affiliates, including, without
limitation, Venator Group, Inc., to execute and return an Estoppel Certificate
to Seller and Seller shall use reasonable efforts to cause all other Tenants to
execute and return the Estoppel Certificates to Seller not later than five (5)
business days prior to Closing, but Seller shall not be required to expend any
money (other than nominal sums), provide any financial accommodations or
commence any litigation. Seller shall use reasonable efforts to deliver to
Purchaser a copy of each Estoppel Certificate promptly after Seller's receipt
thereof. Subject to Section 9.2.3, in no event shall Purchaser have any right to
terminate this Agreement, nor shall Purchaser be entitled to a reduction of the
Purchase Price or otherwise be relieved from its obligations hereunder on
account of any statement made or information contained in any Estoppel
Certificate, but Purchaser's rights hereunder with respect to Seller's
representations and warranties shall, subject to Section 6.3, remain unimpaired
thereby. To the extent that Seller delivers an Estoppel Certificate from a
Tenant subsequent to Seller's delivery of an Estoppel Certificate in the form of
Exhibit S executed by Seller with respect to such Tenant, Seller shall be
released from any liability in connection with Seller's representations
contained therein.
8.8. Contracts. Seller may, between the date hereof and the Closing,
extend, renew, replace or modify any Contract or enter into any new Contract if
the terms thereof are on commercially reasonable and competitive terms and the
term thereof is cancellable upon no more than thirty (30) days prior written
notice, without premium or penalty. At Purchaser's option exercisable by giving
written notice to Seller at least ten (10) business days prior to the Closing,
Seller shall use its best efforts to terminate all Contracts (and Purchaser
shall cooperate with Seller in connection therewith) by giving written notice
thereof to the parties to each of the Contracts. Seller shall pay the
termination fees due
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under the property management agreement with Park Tower Management and all other
termination fees.
8.9. Tax Appeal Proceedings. Purchaser hereby agrees and acknowledges that
Seller shall have the right to continue to prosecute any tax appeal or tax
abatement proceeding with respect to the Property for the tax years prior to the
1998/1999 tax year which was commenced by Seller prior to the date hereof. If
any such tax appeals or tax abatement proceedings result in tax refunds or
rebates from the applicable taxing authori ties, then, after deduction for
Seller's reasonable costs and expenses (including reasonable attorneys' fees)
incurred in connection with such tax appeal or abatement proceedings and subject
to the rights, if any, of Tenants under their Leases with respect thereto (i)
Seller shall be entitled to receive any such refund or rebate with respect to
the period prior to the Closing and (ii) Purchaser shall be entitled to receive
any such refund or rebate with respect to the period from and after the Closing.
The party which actually receives such tax refunds or rebates from the taxing
authorities shall promptly notify the other party thereof and pay to such party
the amounts due to such party pursuant to the terms hereof. At the Closing,
Seller shall assign to Purchaser all tax appeals and tax abatement proceed ings
pending with respect to the Property for the 1998/1999 tax year and any
subsequent tax years. Seller agrees that it will not commence any tax appeal or
tax abatement proceeding after the date hereof without Purchaser's consent and
shall commence any such action (at Purchaser's sole cost and expense) promptly
upon Purchaser's request. The terms and provisions of this Section 8.9 shall
survive the Closing.
8.10. Notices of Violation. Seller shall promptly notify Purchaser of, and
shall promptly deliver to Purchaser a copy of any notice Seller may receive, on
or before the Closing, from any governmental authority, concerning a violation
of laws at or a discharge of hazardous substances from or upon the Property.
8.11. Access. Seller agrees to afford Purchaser and its employees and autho
rized agents with access to the Property prior to the Closing, at reasonable
times and upon reasonable advance notice, provided that neither Purchaser nor
any of its employees or agents shall enter any portion of the Property unless
accompanied by a representative of Seller and that Seller shall not be required
to incur any cost or expense or commence any action to afford Purchaser with
such access. Purchaser specifically agrees that neither it nor any of its
employees or agents shall communicate directly with any Employees or Tenants
unless such communication shall have been approved by Veronica Hackett (or any
other representative of Seller designated by Seller for such purposes), which
approval
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shall not be unreasonably withheld. Seller shall be entitled to have a
representative present during any communications between Purchaser and any of
the Employees or Tenants.
ARTICLE IX.
Closing Conditions
9.1. Conditions to Obligations of Seller. The obligations of Seller under
this Agreement to sell the Property and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Closing Date, except to the extent that any of such
conditions may be waived by Seller in writing at Closing in the Seller's sole
and absolute discretion.
9.1.1. Representations, Warranties and Covenants of Purchaser. All
representations and warranties of Purchaser in this Agreement shall be true and
correct in all material respects as of the Closing Date, with the same force and
effect as if such representations and warranties were made anew as of the
Closing Date, and Purchaser shall have performed and complied in all material
respects with all covenants and agree ments required by this Agreement to be
performed or complied with by Purchaser on or prior to the Closing Date.
Notwithstanding the foregoing, Purchaser may cure any breach of representation
or warranty and otherwise satisfy all conditions to Seller's obligation to close
set forth in this Section 9.1.1 by paying the Balance of the Purchase Price and
performing all other obligations of Purchaser hereunder of a monetary nature on
the Closing Date.
9.1.2. No Orders. No order, writ, injunction or decree shall have been
entered and be in effect by any court of competent jurisdiction or any
authority, and no statute, rule, regulation or other requirement of any
governmental authority shall have been promulgated or enacted and be in effect,
that restrains, enjoins or invalidates the transac tions contemplated hereby.
9.1.3. Termination. Subject to Article XII, in the event Seller shall elect
not to close due to the failure of any one or more of the conditions precedent
to Seller's obligation to sell set forth in this Section 9.1 which has not been
waived by Seller in writing in Seller's sole and absolute discretion, Seller
shall so notify Purchaser on the day of Closing in writing specifying the
unfulfilled conditions, Seller shall direct the Escrow Agent
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to return the Deposit to Purchaser and this Agreement shall terminate, and
neither party shall have any further obligation under this Agreement (except the
Surviving Termination Obligations). Notwithstanding anything to the contrary
contained herein, in the event that Seller delivers a termination notice to
Purchaser pursuant to this Section 9.1.3, Purchaser shall have the right
(provided that it delivers a notice to Seller within five (5) business days of
its receipt of Seller's termination notice), to extend the scheduled Closing
Date for a period of up to thirty (30) business days in order to allow the
satisfaction of the unfulfilled conditions to the obligations of Seller
specified in Seller's termination notice.
9.2. Conditions to Obligations of Purchaser. The obligations of Purchaser
under this Agreement to purchase the Property and consummate the other
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions on or before the Closing Date, except to the extent that
any of such conditions may be waived by Purchaser in writing at Closing in the
Purchaser's sole and absolute discretion.
9.2.1. Representations, Warranties and Covenants of Seller. All
representations and warranties of Seller in this Agreement shall be true and
correct in all material respects as of the Closing Date, with the same force and
effect as if such repre sentations and warranties were made anew as of the
Closing Date, any changes to such representations disclosed by Seller pursuant
to Section 10.1.9 shall be acceptable to Pur chaser in its sole discretion, and
Seller shall have performed and complied in all material respects with all
covenants and agreements required by this Agreement to be performed or complied
with by Seller prior to the Closing Date.
9.2.2. No Orders. No order, writ, injunction or decree shall have been
entered and be in effect by any court of competent jurisdiction or any
authority, and no statute, rule, regulation or other requirement shall have been
promulgated or enacted and be in effect, that restrains, enjoins or invalidates
the transactions contemplated hereby.
9.2.3. Estoppels. Purchaser shall not have received Estoppel Certifi cates
dated not earlier than thirty (30) days prior to the Closing Date in the form
required by this Agreement from (i) all affiliates of Seller occupying all or
any portion of the Property and (ii) Tenants (other than those described in
clause (i) of this sentence) occupying an aggregate of 175,000 square feet of
the Improvements; provided, however, the condition set forth in this clause (ii)
shall be deemed satisfied if Seller delivers a Seller's Estoppel Certificate
executed by Seller and Seller's Affiliate (in the form set forth on Exhibit S)
with respect to Leases for Tenants (other than those described in clause (i) of
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this sentence) occupying the balance of the required 175,000 square feet of the
Improve ments not satisfied by direct Estoppel Certificates from Tenants. Seller
may supplement a Tenant's Estoppel Certificate dated more than thirty (30) days
prior to the Closing Date by delivering a Seller's Estoppel Certificate limited
to the period between the date of the Tenant Estoppel Certificate and the
Closing Date.
9.2.4. Title. At the time of Closing, title to the Property shall be as
provided in this Agreement.
9.2.5. Termination. Subject to Article XII, in the event Purchaser shall
elect not to close due to the failure of any one or more of the conditions
precedent to Purchaser's obligation to consummate this transaction set forth in
this Section 9.2 which has not been waived by Purchaser in writing in
Purchaser's sole and absolute discretion, Purchaser shall so notify Seller on
the day of Closing in writing specifying the unfulfilled conditions, Seller
shall direct the Escrow Agent to return the Deposit to Purchaser and this
Agreement shall terminate, and neither party shall have any further obligation
under this Agreement (except the Surviving Termination Obligations).
Notwithstanding anything to the contrary contained herein, in the event that
Purchaser delivers a termination notice to Seller pursuant to this Section
9.2.4, Seller shall have the right (provided that it delivers a notice to
Purchaser within two (2) business days of its receipt of Purchaser's termination
notice), to extend the scheduled Closing Date for a period of up to ten (10)
business days in order to allow the satisfaction of the unfulfilled conditions
to the obligations of Purchaser specified in Purchaser's termination notice.
ARTICLE X.
Closing
10.1. Seller's Closing Obligations. Seller shall, at its sole cost and
expense, execute, acknowledge (where applicable) and deliver or cause to be
delivered to Pur chaser at Closing the following:
10.1.1. A bargain and sale deed without covenant against grantor's acts
(the "Deed") substantially in the form attached hereto as Exhibit G, conveying
to Purchaser the Land and Improvements in fee simple, subject only to the
Permitted Excep tions.
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10.1.2. An "Assignment and Assumption of Leases" in the form of Exhibit H
attached hereto, with respect to the Leases and the Security Deposits.
10.1.3. An "Assignment and Assumption of Contracts" in the form of Exhibit
I attached hereto.
10.1.4. A list of Security Deposits required to be held pursuant to the
applicable Leases.
10.1.5. Copies of the Contracts, the Licenses and Permits and the
warranties and guarantees (originals will be provided if available).
10.1.6. Originals (to the extent in Seller's possession or control,
otherwise photostatic copies thereof) of all Leases in effect on such date and
all other documents in the possession of Seller relating to the Tenants,
including any Estoppel Certificates received by Seller from any of the Tenants.
10.1.7. Written notices executed by Seller and addressed to each Tenant (i)
advising each such Tenant of the sale of the Property and the transfer of the
unapplied amount of its security deposit (if any) to Purchaser in accordance
with New York General Obligations Law Section 7-105 and (ii) indicating that
rent should thereafter be paid to Purchaser and giving instructions therefor,
substantially in the form of Exhibit J attached hereto. Purchaser agrees to
deliver such notices to the Tenants, by registered or certified mail, within
five (5) days after the Closing Date and hereby agrees to indemnify and hold
Seller harmless from and against all loss, cost and expense incurred by Seller
as a result of Purchaser's failure to so deliver such notices to the Tenants.
Purchaser's obligations under this Section 10.1.7 shall survive the Closing.
10.1.8. Written notices executed by Seller, addressed to each party
performing services pursuant to a Contract indicating that the Property has been
sold to Purchaser and that either (i) all rights of Seller thereunder have been
assigned to Purchaser or (ii) if requested by Purchaser in accordance with
Section 8.8, Seller has terminated such Contract.
10.1.9. A certificate in the form of Exhibit K attached hereto, indicating
that the representations and warranties of Seller set forth in Article VI are
true and correct on the Closing Date, or, if there have been changes, describing
such changes.
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10.1.10. A bill of sale in the form attached hereto as Exhibit L convey
ing, transferring and selling to Purchaser (with no value separate from the Real
Property) all right, title and interest of Seller in and to the Personal
Property.
10.1.11. The License Agreement.
10.1.12. A certificate substantially in the form attached hereto as Exhibit
M certifying that Seller is not a "foreign person" as defined in Section 1445 of
the Code.
10.1.13. A New York City Real Property Transfer Tax Return and New York
State Combined Real Estate Transfer Tax Return and Credit Line Mortgage
Certificate (Form TP-584) (together, the "Transfer Tax Returns"), each duly
signed by Seller, together with the payment of the amount of the Transfer Taxes,
if any, due in connection with the transactions contemplated hereunder, in each
case by delivery to the Title Company of a certified check payable to the order
of the Commissioner of Finance in the amount of the Transfer Tax due to New York
City and a certified check payable to the order of the New York State Department
of Taxation and Finance in the amount of the Transfer Tax due to New York State
(unless Seller elects to have Purchaser make such payments with a credit against
the Purchase Price, in which case such payments shall be so made by Purchaser).
10.1.14. The following items to the extent in Seller's possession or under
Seller's control: (i) keys for all entrance doors in the Improvements, (ii) all
original (or copies if originals are not available) books, records, tenant
files, operating reports, files, plans and specifications and other materials
related to the operation of the Property; (iii) the originals (or copies where
originals are not available) of the Contracts and the Licenses and Permits, and
(iv) a revised Rent Roll certified by an authorized officer of Seller, updated
to within ten (10) business days of the Closing.
10.1.15. Evidence reasonably satisfactory to Purchaser and the Title
Company that the person executing the Closing documents on behalf of Seller has
full right, power and authority to do so.
10.1.16. An affidavit in lieu of registration as required by Chapter 664 of
the Laws of 1978 in the form of Exhibit N.
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10.1.17. Affidavits and other matters as are reasonably requested by the
Title Company pursuant to Section 5.1.5 of this Agreement.
10.1.18. At Closing, Seller shall have delivered possession of the Property
to Purchaser, subject to the Permitted Exceptions and the rights of Tenants
under the Leases.
10.1.19. The Venator SNDA.
10.1.20. Such other documents as may be reasonably necessary or appropriate
to effect the consummation of the transactions which are the subject of this
Agreement.
10.2. Purchaser's Closing Obligations. Purchaser, at its sole cost and
expense, shall deliver or cause to be delivered to Seller (or, in the case of an
Exchange, to the Qualified Intermediary) or the Tenant under the Venator Lease,
as applicable, at Closing the following:
10.2.1. The Balance of the Purchase Price, after all adjustments are made
at the Closing as herein provided to Seller, and a payment to the tenant under
the Venator Lease in respect of such tenant's initial improvements to the
Venator Premises that were completed prior to the Closing Date, up to
$11,000,000, in each case by Federal Reserve wire transfer of immediately
available funds. To the extent that such initial improvements have not been
completed prior to the Closing Date, then, in order to secure Purchaser's
obligation to pay $11,000,000 (minus amounts paid pursuant to the immediately
preceding sentence) to the tenant under the Venator Lease, Purchaser shall pay
to the Escrow Agent, at the Closing, by Federal Reserve wire transfer of
immediately available funds, the balance thereof remaining to be paid to the
tenant under the Venator Lease so that Purchaser's total payment equals
$11,000,000 and the tenant under the Venator Lease, the Escrow Agent and
Purchaser shall enter into an escrow agreement, in form and substance reasonably
satisfactory to the parties thereto, governing disbursement of said $11,000,000
(minus amounts paid pursuant to the immediately preceding sentence) in
accordance with the terms of the Venator Lease, provided, however, that the only
condition to the disbursement of the $11,000,000 (minus amounts paid pursuant to
the immediately preceding sentence) shall be Purchaser's receipt of a
certification from the tenant under the Venator Lease that the initial tenant
improvements have been completed.
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10.2.2. Purchaser shall duly execute, acknowledge (as appropriate) and
deliver:
(i) the Assignment and Assumption of Leases;
(ii) the Assignment and Assumption of Contracts;
(iii) receipt for delivery and acceptance of the Security Deposits;
(iv) the License Agreement; and
(v) the Transfer Tax Returns.
10.2.3. A non-disturbance agreement (the "Venator SNDA") in favor of the
tenant under the Venator Lease, duly executed, acknowledged and delivered by the
holder of any mortgage granted by Purchaser with respect to the Real Property or
any portion thereof, in the form of Exhibit O attached hereto.
10.2.4. Evidence reasonably satisfactory to Seller and the Title Company
that the person executing the Closing documents on behalf of Purchaser has full
right, power and authority to do so.
10.2.5. A certificate in the form of Exhibit P attached hereto, indicating
that the representations and warranties of Purchaser set forth in Article VII
are true and correct on the Closing Date, or, if there have been changes,
describing such changes.
10.2.6. Such other documents as may be reasonably necessary or appropriate
to effect the consummation of the transactions which are the subject of this
Agreement.
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ARTICLE XI.
Risk of Loss
11.1. Condemnation and Casualty. If, prior to the Closing Date, all or any
portion of the Property is taken by eminent domain, or is the subject of a
pending taking which has not been consummated, or is destroyed or damaged by
fire or other casualty, Seller shall notify Purchaser of such fact promptly
after Seller obtains knowledge thereof. If such condemnation or casualty is
Material (as such term is hereinafter defined), Pur chaser shall have the option
to terminate this Agreement upon notice to Seller given not later than fifteen
(15) business days after receipt of Seller's notice, or the Closing Date,
whichever is earlier. If this Agreement is terminated, the Deposit shall be
returned to Purchaser and thereafter neither Seller nor Purchaser shall have any
further rights or obligations to the other hereunder except with respect to the
Surviving Termination Obligations. If this Agreement is not terminated, Seller
shall not be obligated to repair any damage or destruction but (x) Seller shall
assign and turn over to Purchaser the insurance proceeds as they relate to
property damage to Property that the Purchaser will have an interest in after
the Closing or condemnation awards, as applicable, net of any costs of repairs
and net of reasonable collection costs (or, if such have not been awarded, all
of its right to receive the same) authorized by Purchaser to be paid and
actually paid by Seller with respect to such fire or other casualty or
condemnation, including any rent abatement insurance accruing after the Closing
for such casualty or condemnation, provided that Purchaser shall retain the
exclusive right to file and prosecute the adjustment, compromise or settlement
of any claim for the insurance proceeds as they relate to property damage to
Property that the Purchaser will have an interest in after the Closing, and (y)
the parties shall proceed to Closing pursuant to the terms hereof without
abatement of the Purchase Price except for a credit in the amount of the
applicable insurance deductible.
11.2. Condemnation not Material. If the condemnation is not Material, then
the Closing shall occur without abatement of the Purchase Price and, after
deducting Seller's reasonable costs and expenses incurred in collecting any
award, Seller shall assign all remaining awards or any rights to collect awards
to Purchaser on the Closing Date.
11.3. Casualty not Material. If the Casualty is not Material, then the
Closing shall occur without abatement of the Purchase Price (except for a credit
against the Purchase Price in the amount of the applicable deductible under
Seller's insurance policies), Seller shall not be obligated to repair such
damage or destruction and Seller shall
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assign and turn over to Purchaser all of the insurance proceeds net of any costs
of repairs and net of reasonable collection costs (or, if such have not been
awarded, all of its right, title and interest therein) authorized by Purchaser
to be paid and actually paid by Seller with respect to such fire or such
casualty, including any rent abatement insurance accruing after the Closing for
such casualty.
11.4. Materiality. For purposes of this Article XI, the term "Material"
shall mean:
(i) with respect to a taking by eminent domain, a taking of (x) any portion
of the Broadway Parcel or the Improvement thereon, or (y) the entirety of either
the Barclay Parcel or the Park Place Parcel, or both, and the Improvements
located thereon, excluding, however, any taking solely of subsurface rights or
takings for utility easements or right of way easements, if the surface of such
Land, after such taking, may be used in substantially the same manner as though
such rights had not been taken; and
(ii) with respect to a casualty, any casualty such that the cost of repair,
as reasonably estimated by an independent engineer licensed to do business in
the State of New York acceptable to Seller and Purchaser, is in excess of
$10,000,000.
11.5. General Obligations Law. The provisions of this Article XI are
intended to supersede those of Section 5-1311 of the General Obligations Law of
New York.
ARTICLE XII.
Default
12.1. Default by Seller. Except as set forth below, in the event the
Closing and the transactions contemplated hereby do not occur as provided herein
by reason of the default of Seller, Purchaser may elect, as the sole and
exclusive remedy of Purchaser, to (i) terminate this Agreement and receive the
Deposit from the Escrow Agent in accordance with the terms and provisions of
Section 3.2 hereof, and in such event Seller shall not have any liability
whatsoever to Purchaser hereunder other than with respect to the Surviving
Termination Obligations, or (ii) enforce specific performance of, or seek other
equitable actions under, this Agreement, provided none of the same requests or
entitles Purchaser to any monetary damages from Seller. Purchaser shall be
deemed to have elected to terminate this Agreement (as provided in subsection
(i) above) if Purchaser fails to deliver
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to Seller written notice of its intent to file a cause of action for specific
performance against Seller within thirty (30) days after written notice of
termination from Seller or thirty (30) days after the originally scheduled
Closing Date, whichever shall occur first, or having given Seller notice, fails
to file a lawsuit asserting such cause of action within ninety (90) days after
the originally scheduled Closing Date. Notwithstanding the foregoing, nothing
contained herein shall limit Purchaser's remedies at law or in equity as to the
Surviving Termination Obligations.
12.2. Default by Purchaser. In the event the Closing and the transactions
contemplated hereby do not occur as provided herein by reason of any default of
Pur chaser, Purchaser and Seller agree it would be impractical and extremely
difficult to fix the damages which Seller may suffer. Therefore, Purchaser and
Seller hereby agree a reasonable estimate of the total net detriment Seller
would suffer in the event Purchaser defaults and fails to complete the purchase
of the Property is and shall be, as Seller's sole and exclusive remedy (whether
at law or in equity), a sum equal to the Deposit. Upon such default by
Purchaser, Seller shall have the right to receive the Deposit from the Escrow
Agent, in accordance with the terms and provisions of Section 3.2 hereof, as its
sole and exclusive remedy and thereupon this Agreement shall be terminated and
neither Seller nor Purchaser shall have any further rights or obligations
hereunder except with respect to the Surviving Termination Obligations. The
amount of the Deposit shall be the full, agreed and liquidated damages for
Purchaser's default and failure to complete the purchase of the Property, all
other claims to damages or other remedies being hereby expressly waived by
Seller. Notwithstanding the foregoing, nothing contained herein shall limit
Seller's remedies at law or in equity as to the Surviving Termination
Obligations. Notwithstanding the foregoing, Purchaser may cure any defaults by
paying the Balance of the Purchase Price and performing all other obligations of
Purchaser hereunder of a monetary nature on the Closing Date.
ARTICLE XIII.
Brokers
13.1. Brokerage Indemnity. Purchaser shall indemnify Seller, its
affiliates, and its and their partners, trustees, advisors, officers, and
directors, against all losses, damages, costs, expenses (including reasonable
fees and expenses of attorneys), causes of action, suits or judgments of any
nature arising out of any claim, demand or liability to or asserted
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by any broker, agent or finder, licensed or otherwise, claiming to have dealt
with Purchaser in connection with this transaction other than J.P. Morgan
Securities Inc. and The Georgetown Company (together, the "Broker"). Seller
shall indemnify Purchaser and its affiliates, and its and their partners,
members, trustees, advisors, officers and directors, against all losses,
damages, costs, expenses (including reasonable fees and expenses of attorneys),
causes of action, suits or judgments of any nature arising out of any claim,
demand or liability to or asserted by the Broker in connection with this
transaction or by any broker, agent or finder, licensed or otherwise, claiming
to have dealt with Seller in connection with this transaction. Seller shall pay
the Broker in connection with the consummation of the transactions contemplated
by this Agreement pursuant to a separate agreement between Seller and Broker.
The provisions of this Article XIII shall survive the Closing and/or termination
of this Agreement.
ARTICLE XIV.
Confidentiality
14.1. Publication. Purchaser and Seller shall consult with each other prior
to making any public statements with respect to this Agreement and the
transactions contem plated hereby and, except as otherwise may be required by
law or in connection with any filings required to be made by either party with
the Securities and Exchange Commission, Purchaser and Seller shall not make any
public statements, including, without limitation, any press releases, with
respect to this Agreement and the transactions contemplated hereby, without the
prior written consent of the other party, which consent shall not be unreason
ably withheld. Notwithstanding the foregoing, this Article 14 shall terminate
and be of no further force and effect from and after the Closing.
ARTICLE XV.
Employee Matters
15.1. Employment Responsibilities. Seller shall terminate all Employees on
the Closing Date. Purchaser shall offer to rehire and employ on and after the
Closing not less than 33 Employees, which Seller represents is 60% of the
aggregate number of Employees represented by any and all unions on the date
hereof (collectively, the "Union Employ ees") on substantially the same wages,
terms and conditions as such Union Employees were employed by Seller immediately
prior to Seller's termination of such employment. Except as set forth below,
Purchaser shall be solely responsible for, and hereby assumes all liabilities
whatsoever with respect to: (i) all salaries and wages relating to any Union
Employee hired by Purchaser and attributable to the period on and after the
Closing Date, (ii) benefits relating to any Union Employee hired by Purchaser
and attributable to the period on and after the Closing Date, (iii) benefit
continuation and/or severance payments relating to any Union Employee as a
result of any termination of employment of any Union Employee on and after the
Closing Date, (iv) notices, payments, fines or assessments pursuant to any laws,
rules or regulations with respect to the employment, discharge or layoff of
Union Employees on or after the Closing Date, including, but not limited to,
such liability as arises under the Worker Adjustment and Retraining Notification
Act, Section 4980B of the Code (COBRA) and any rules or regulations as have been
issued in connec tion with any of the foregoing and (v) any withdrawal liability
under any multiemployer pension plans or similar arrangements with respect to
the Union Employees (the aggregate amount of liabilities pursuant to clauses
(iii), (iv) and (v) being hereinafter collectively referred to as the "Employee
Termination Liabilities"). Subject to the provisions of the next sentence,
Seller shall be responsible for one-half (1/2) of the Employee Termination
Liabilities (defined herein) up to a maximum of $250,000 (the "Maximum
Termination Responsibility"). Purchaser may elect, without notice to Seller, to
decrease the percent age of Union Employees which Purchaser is obligated to
offer to rehire from 33 to any number (but not less than 27), provided that
Purchaser shall, in addition to Purchaser's liabilities set forth above, be
solely responsible for, and hereby assumes all Employee Termination Liabilities,
with respect to a number of Union Employees equal to 33 minus the number of
Union Employees Purchaser actually offered to hire. Solely for purposes of
calculating Purchaser's liability pursuant to the immediately preceding
sentence, Seller shall select which Union Employees shall be used in
apportioning liability from the list of Union Employees which Purchaser did not
offer employment.
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Subject to Seller's Maximum Termination Responsibility, Purchaser and
Seller each hereby agrees to indemnify the other and their respective affiliates
against, and agrees to defend and hold them harmless from any and all claims,
losses, damages and expenses (including, without limitation, reasonable
attorneys' fees) and other liabilities and obligations incurred or suffered as a
result of any claim by or on behalf any Union Employee that arises under
federal, state or local statute (including, without limitation, Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination
in Employment Act of 1990, the Equal Pay Act, the Americans with Disabilities
Act of 1990, the Employ ee Retirement Income Security Act of 1974 and all other
statutes regulating the terms and conditions of employment), regulation or
ordinance, under the common law or in equity (including any claims for wrongful
discharge or otherwise, but specifically excluding any claims under any policy,
agreement, understanding or promise, written or oral, formal or informal (other
than the CBAs), between Seller and the Union Employees), arising solely as a
result of termination of employment on the Closing Date. Seller shall indemnify
and hold Purchaser harmless from any of the foregoing to the extent arising out
of any acts or omissions that occurred (or, in the case of omissions, failed to
occur) prior to the Closing Date.
15.2. Collective Bargaining Agreements. Effective as of the Closing,
Purchaser shall diligently proceed in good faith to enter into or otherwise
become a party or subject to and thereafter observe, pay and perform all
obligations and liabilities under, arising from or otherwise relating to (i) the
1996 Commercial Building Agreement between Local 32B-32J, Service Employees
International Union, AFL-CIO and the Realty Advisory Board on Labor Relations,
Inc. and (ii) the 1998 Engineer Agreement between the Realty Advisory Board of
Labor Relations, Incorporated and Local 94-94A-94B, International Union of
Operating Engineers AFL-CIO (hereafter, collectively, the "CBAs"). Purchaser
shall have sole responsibility for all such obligations and liabilities arising
under or relating to the CBAs , to the extent entered into or binding upon
Purchaser (subject to Seller's Maximum Termination Responsibility) on or at any
time after the Clos ing Date and hereby agrees to indemnify and hold Seller
harmless from and against all loss, cost and expense incurred by Seller as a
result of Purchaser's failure to perform its obligation under this Section 15.2.
15.3. Survival. The provisions of this Article XV shall survive the
Closing.
ARTICLE XVI.
Miscellaneous
16.1. Notices. Any and all notices, requests, demands or other
communications hereunder shall be deemed to have been duly given if in writing
and if transmitted by hand delivery with receipt therefor, by facsimile delivery
(with confirmation by hard copy), by overnight courier, or by registered or
certified mail, return receipt requested, first class postage prepaid addressed
as follows (or to such new address as the addressee of such a
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communication may have notified the sender thereof) (the date of such notice
shall be the date of actual delivery to the recipient or recipients refusal to
accept thereof):
To Purchaser: 233 Broadway Owners, LLC
c/o The Witkoff Group LLC
220 East 42nd Street
New York, New York 10017
Attn: James Stomber, Esq.
Fax No.: (212) 672-3434
With a copy to: Herrick, Feinstein LLP
2 Park Avenue
New York, New York 10016
Attn: Neil Shapiro, Esq.
Fax No.: (212) 889-7577
To Seller: 233 Broadway, Inc.
c/o Venator Group, Inc.
233 Broadway
New York, New York 10279
Attn: General Counsel
Fax No.: (212) 553-7038
With a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attn: Benjamin F. Needell, Esq.
Fax No.: (212) 735-2000
To Escrow Agent: Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attn: James F. O'Rorke, Jr., Esq.
Fax No.:(212) 735-2000
With a copy to: Each of the other parties to this Agreement
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Purchaser's counsel may give any notices or other communications hereunder
on behalf of Purchaser and Seller's counsel may give any notices or other
communications hereunder on behalf of Seller.
16.2. Governing Law; Venue.
16.2.1. This Agreement was negotiated in the State of New York and was
executed and delivered by Seller and Purchaser in the State of New York, which
State the parties agree has a substantial relationship to the parties and to the
underlying transactions embodied hereby, and in all respects, including, without
limiting the generality of the foregoing, matters of construction, validity,
enforcement and performance, this Agreement and the obligations arising
hereunder shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and performed wholly within such
State, without giving effect to the principles of conflicts of law of such
jurisdiction. To the fullest extent permitted by law, the parties hereby uncondi
tionally and irrevocably waive and release any claim that the law of any other
jurisdiction governs this Agreement and this Agreement shall be governed and
construed in accor dance with the laws of the State of New York as aforesaid
pursuant to Section 5-1401 of the New York General Obligations Law.
16.3. Headings. The captions and headings herein are for convenience and
reference only and in no way define or limit the scope or content of this
Agreement or in any way affect its provisions.
16.4. Business Days. If any date herein set forth for the performance of
any obligations of Seller or Purchaser or for the delivery of any instrument or
notice as herein provided should be on a Saturday, Sunday or legal holiday, the
compliance with such obligations or delivery shall be deemed acceptable on the
next business day following such Saturday, Sunday or legal holiday. As used
herein, the term "legal holiday" means any state or Federal holiday for which
financial institutions or post offices are generally closed in the state of New
York.
16.5. Counterpart Copies. This Agreement may be executed in two or more
counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this Agreement.
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16.6. Binding Effect. This Agreement shall be not become a binding
obligation upon Seller unless and until the same has been fully executed by
Purchaser and Seller and a fully executed counterpart delivered by Seller to
Purchaser
16.7. Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns.
16.8. Assignment. This Agreement may not be assigned by Purchaser except to
a directly or indirectly wholly-owned subsidiary or subsidiaries of Purchaser,
or to a partnership, corporation or limited liability company in which Guarantor
(or any of his family members) and/or Lehman Brothers Holdings Inc. (or an
affiliate thereof) owns, either directly or indirectly, at least 75% of the
profits thereof and controls the management of the affairs of such entity (any
such entity, a "Permitted Assignee") and any other assignment or attempted
assignment by Purchaser shall constitute a default by Purchaser hereunder and
shall be deemed null and void and of no force or effect. Notwithstanding
anything to the contrary contained herein, Purchaser may (i) assign the right to
purchase the Broadway Parcel, the Barclay Parcel and the Park Place Parcel and
the Improvements relating to each such parcel to different entities, provided,
however, that each of such entities is a Permitted Assignee, and (ii)
collaterally assign this Agreement to any institu tional lender. A copy of any
assignment permitted hereunder, together with an agreement of the assignee
assuming all of the terms and conditions of this Agreement to be performed by
Purchaser, in form reasonably satisfactory to counsel for Seller, shall be
delivered to the attorneys for Seller prior to the Closing, and in any event no
such assignment shall relieve Purchaser from Purchaser's obligations under this
Agreement nor result in a delay in the Closing.
16.9. Interpretation. This Agreement shall not be construed more strictly
against one party than against the other merely by virtue of the fact that it
may have been prepared by counsel for one of the parties, it being recognized
that both Seller and Purchaser have contributed substantially and materially to
the preparation of this Agree ment.
16.10. Entire Agreement. This Agreement and the Exhibits and Schedules
attached hereto contain the final and entire agreement between the parties
hereto with respect to the sale and purchase of the Property and are intended to
be an integration of all prior negotiations and understandings. Purchaser,
Seller and their agents shall not be
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bound by any terms, conditions, statements, warranties or representations, oral
or written, not contained herein. No change or modifications to this Agreement
shall be valid unless the same is in writing and signed by the parties hereto.
Each party reserves the right to waive any of the terms or conditions of this
Agreement which are for their respective benefit and to consummate the
transactions contemplated by this Agreement in accordance with the terms and
conditions of this Agreement which have not been so waived. Any such waiver must
be in writing signed by the party for whose benefit the provision is being
waived.
16.11. Severability. If any one or more of the provisions hereof shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein, unless and to the
extent that the invalidation of any such term or provision materially alters the
intent of the parties hereto.
16.12. Survival. Except as otherwise specifically provided for in this
Agreement (collectively, the "Surviving Termination Obligations"), the
provisions of this Agree ment and the representations and warranties herein
shall not survive after the conveyance of title and payment of the Purchase
Price but be merged therein.
16.13. Exhibits. Exhibits A through R and Schedules 1 through 8 attached
hereto are incorporated herein by reference.
16.14. Limitation of Liability. Subject to Article XIX, the obligations of
Seller are intended to be binding only on Seller and Seller's assets, and shall
not be personally binding upon, nor shall any resort be had to, any of the
partners, officers, directors, shareholders, advisors, trustees, agents, or
employees of Seller, or its affiliates or any of their respective properties.
16.15. Prevailing Party. Should either party employ an attorney to enforce
any of the provisions hereof (whether before or after Closing, and including any
claims or actions involving amounts held in escrow), then the nonprevailing
party in any final judgment agrees to pay the other party's reasonable
attorneys' fees and expenses in or out of litigation and, if in litigation,
trial, appellate, bankruptcy or other proceedings, expended or incurred in
connection therewith, as determined by a court of competent jurisdiction.
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The provisions of this Section 16.15 shall survive Closing and/or any
termination of this Agreement and shall not be subject to any limitations on
liability set forth herein.
16.16. Real Estate Reporting Person. Escrow Agent is hereby designated the
"real estate reporting person" for purposes of Section 6045 of the Code and
Treasury Regulation 1.6045-4 and any instructions or settlement statement
prepared by Escrow Agent shall so provide. Upon the consummation of the
transaction contemplated by this Agreement, Escrow Agent shall file Form 1099
information return and send the statement to Seller as required under the
aforementioned statute and regulation. Seller and Pur chaser shall promptly
furnish their federal tax identification numbers to Escrow Agent and shall
otherwise reasonably cooperate with Escrow Agent in connection with Escrow
Agent's duties as real estate reporting person.
16.17. No Recording. Neither this Agreement nor any memorandum or short
form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.
16.18. No Other Parties. This Agreement is not intended, nor shall it be
con strued, to confer upon any person or entity, except the parties hereto and
their respective heirs, successors and permitted assigns, any rights or remedies
under or by reason of this Agreement.
16.19. Waiver of Trial by Jury. The respective parties hereto shall and
hereby do waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Agreement, or for the
enforcement of any remedy under any statute, emergency or otherwise.
16.20. Rule 314. Seller agrees to cooperate with the appropriate owning
party in connection with any audit pursuant to Rule 314 promulgated by the
Securities and Exchange Commission, and to execute a representation certificate
in compliance with applicable law, provided that Purchaser shall be responsible
for Seller's reasonable costs and expenses (including reasonable attorney's
fees) in connection with such cooperation and representation certificate.
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ARTICLE XVII.
Purchaser Guaranty
17.1. Purchaser Guaranty. In order to induce Seller to enter into this
Agree ment, the Guarantor hereby unconditionally and irrevocably guarantees (the
"Purchaser Guaranty") the full and prompt payment when due of the Additional
Deposit. The Guarantor shall be primarily (rather than merely secondarily)
liable hereunder with respect to the Additional Deposit.
17.2. Waivers. The Purchaser Guaranty is a continuing guaranty and shall
remain in force until the Additional Deposit has been paid in full to the Escrow
Agent and is independent of every other recourse which Seller may at any time
hold or have for the Additional Deposit. The Guarantor waives all diligence,
presentment and protest, and also notice of dishonor, protest and nonpayment. No
failure by Seller to assert any right or pursue any remedy with respect to
Purchaser or the Purchaser Guaranty shall relieve the Guarantor from his
obligations with respect to the Additional Deposit. The Purchaser Guaranty is a
guaranty of payment and not merely of collection and the Guarantor hereby waives
any right to require that any action be brought against Purchaser or that the
Agreement be enforced by Seller without Seller first taking any steps or
proceedings against Purchaser.
17.3. Absolute Obligation. The Guarantor agrees that the Purchaser Guaranty
shall not be diminished or affected, in any way, by any bankruptcy,
reorganization, arrangement, liquidation or similar proceeding with respect to
Purchaser or by dissolution of Purchaser or by any default hereunder by Seller.
The Purchaser Guaranty shall continue in full force and effect notwithstanding
any merger, consolidation, sale of assets or any other similar transaction by
Purchaser or the Guarantor. In addition, the Purchaser Guaranty shall not be
affected by any act, omission, matter or thing which, but for this provision,
might operate to release or otherwise exonerate the Guarantor from the Purchaser
Guaranty or affect the Guarantor's obligations with respect to the Additional
Deposit, including, without limitation and whether or not known to the
Guarantor:
17.3.1. any variation of this Agreement or any other document delivered
pursuant hereto or any time, indulgence, waiver or consent at any time given to
Purchaser or any other person or entity;
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17.3.2. any compromise or release of, or abstention from obtaining,
perfecting or enforcing any security or other right or remedy whatsoever from or
against Purchaser or any other person or entity;
17.3.3. any legal limitation, disability, incapacity or other circumstances
relating to Purchaser or any other person or entity; and
17.3.4. any irregularity, unenforceability or invalidity of this Agreement.
17.4. Enforcement Costs. The Guarantor further agrees to pay all reasonable
costs and expenses, including, without limitation, reasonable attorneys' fees,
at any time paid or incurred by or on behalf of Seller in enforcing the
Purchaser Guaranty.
17.5. Waiver of Subrogation. The Guarantor irrevocably waives all rights to
enforce or collect upon any rights which it now has or may acquire against
Purchaser either by way of subrogation, indemnity, reimbursement or contribution
for any amount paid under the Purchaser Guaranty or by way of any other
obligations whatsoever of Purchaser to the Guarantor, nor shall the Guarantor
file, assert or receive payment on any claim, whether now existing or hereafter
arising, against Purchaser in the event of any bankruptcy, reorganization,
arrangement, liquidation or similar proceeding with respect to Purchaser.
17.6. Waiver of Defenses. The Guarantor absolutely, unconditionally and
irrevocably waives any and all right to assert or interpose any defense (other
than the final and indefeasible payment in full to the Escrow Agent of the
Additional Deposit), setoff, counterclaim or crossclaim of any nature whatsoever
with respect to the Purchaser Guaranty or the Additional Deposit.
ARTICLE XVIII.
Venator Lease
18.1. Venator Lease. Seller and Purchaser hereby agree to proceed in good
faith to expeditiously finalize a lease (the "Venator Lease") governing the
tenancy of Venator Group, Inc. or an affiliate thereof (acceptable to Purchaser
subject to the terms of Exhibit F at the Improvements upon the Broadway Parcel
and the Park Place Parcel from and after the Closing Date, such Venator Lease to
incorporate the terms and conditions set
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forth in the term sheet attached hereto as Exhibit F and otherwise be upon such
commer cially reasonable terms and conditions as Seller and Purchaser shall
agree upon on or before July 15, 1998. Promptly after the Venator Lease has been
finalized in accordance with this Article XVIII, Seller shall execute the
Venator Lease and shall cause the tenant thereunder to execute the Venator Lease
and, upon such execution, the Venator Lease shall be deemed a Lease for all
purposes under this Agreement and Seller shall deliver a copy of the Venator
Lease to Purchaser.
18.2. Disputes. In the event that, on or before July 15, 1998 (or such
additional period of time thereafter as Seller and Purchaser may mutually agree
upon in writing), Seller and Purchaser shall be unable to agree upon any of the
terms and conditions of the Venator Lease (other than those set forth on Exhibit
F), then either party may, upon notice to the other identifying with specificity
the matter in dispute, submit the resolution of such dispute to the first to
accept of Robert S. Nash, Gerald R. Uram, Lawrence D. Eisenberg and L. Stanton
Towne (the "Lease Mediator"), such individuals to be requested to serve as Lease
Mediator in the order in which their names appear herein. In the event of any
such submission, each party shall, at any time during the ten (10) business days
following the initiating party's notice (which notice shall identify the Lease
Mediator), submit to the Lease Mediator a written proposal for the resolution of
such dispute. In the event that one (but not both) of the parties to this
Agreement shall fail to so submit its proposal to the Lease Mediator within such
ten (10) day period, then the Lease Mediator shall proceed to resolve the
dispute without the benefit of the other proposal. Within ten (10) business days
after the Lease Mediator's receipt of such proposals (or, in the event that only
one proposal is submitted to the Lease Mediator, within ten (10) business days
after the later to occur of (i) the expiration of the ten (10) business day
period for submis sion of written proposals and (ii) the receipt of a single
proposal), the Lease Mediator shall resolve the dispute by drafting appropriate
provisions for incorporation into, and/or deletion of specific provisions from,
the Venator Lease. During such ten (10) business day period, the Lease Mediator
may conduct such hearings and investigations as he may deem appropriate. The
determination of the Lease Mediator shall be final and binding upon the parties.
Each party shall pay its own counsel fees and expenses, if any, in connection
with any dispute resolution under this Section. The costs and expenses of the
Lease Mediator shall be borne equally by Seller and Purchaser. In the event of
the death or incapacitation of the Lease Mediator, then the parties shall
promptly and in good faith agree upon the identity of a successor Lease Mediator
from the list of individuals identified above.
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18.3. Alterations. Purchaser hereby consents to and approves of the
alterations to the Venator Premises described in the memorandum annexed hereto
as Exhibit Q, provided, that such alterations (i) shall not affect the
structural integrity of the Improve ments, (ii) shall not adversely affect the
building systems in the Improvements, and (iii) are completed in a manner
consistent with corporate headquarters in buildings similar to the Improvements
on the Broadway Parcel.
ARTICLE XIX.
Seller Guaranty
19.1. Seller Guaranty. In order to induce Purchaser to enter into this
Agree ment, Venator Group, Inc. (the "Seller Affiliate") hereby unconditionally
and irrevoca bly guarantees (the "Seller Guaranty") the full and prompt payment,
performance and observance of the Seller's obligations hereunder (the "Seller
Obligations"). The Seller Affiliate shall be primarily (rather than merely
secondarily) liable hereunder with respect to the Seller Obligations.
19.2. Waivers. The Seller Guaranty is a continuing guaranty and shall
remain in force until the Seller Obligations has been paid or performed in full
and is independent of every other recourse which Purchaser may at any time hold
or have for the Seller Obliga tions, subject to the limitations set forth in
this Agreement. The Seller Affiliate waives all diligence, presentment and
protest, and also notice of dishonor, protest and nonpayment. No failure by
Purchaser to assert any right or pursue any remedy with respect to Seller or the
Seller Guaranty shall relieve the Seller Affiliate from its obligations with
respect to the Seller Obligations. The Seller Guaranty is a guaranty of payment
and performance and not merely of collection and the Seller Affiliate hereby
waives any right to require that any action be brought against Seller or that
the Agreement be enforced by Purchaser against Seller without Purchaser first
taking any steps or proceedings against Seller.
19.3. Absolute Obligation. The Seller Affiliate agrees that the Seller
Guaranty shall not be diminished or affected, in any way, by any bankruptcy,
reorganization, arrangement, liquidation or similar proceeding with respect to
Seller or by dissolution of Seller. The Seller Guaranty shall continue in full
force and effect notwithstanding any merger, consolidation, sale of assets or
any other similar transaction by Seller or the Seller Affiliate. In addition,
the Seller Guaranty shall not be affected by any act, omission, matter
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or thing which, but for this provision, might operate to release or otherwise
exonerate the Seller Affiliate from the Seller Guaranty or affect the Seller
Affiliate's obligations with respect to the Seller Obligations, including,
without limitation and whether or not known to the Seller Affiliate:
19.3.1. any variation of this Agreement or any other document delivered
pursuant hereto or any time, indulgence, waiver or consent at any time given to
Seller or any other person or entity;
19.3.2. any compromise or release of, or abstention from obtaining,
perfecting or enforcing any security or other right or remedy whatsoever from or
against Seller or any other person or entity;
19.3.3. any legal limitation, disability, incapacity or other circumstances
relating to Seller or any other person or entity; and
19.3.4. any irregularity, unenforceability or invalidity of this Agreement.
19.4. Enforcement Costs. The Seller Affiliate further agrees to pay all
reason able costs and expenses, including, without limitation, reasonable
attorneys' fees, at any time paid or incurred by or on behalf of Purchaser in
enforcing the Seller Guaranty.
19.5. Waiver of Subrogation. The Seller Affiliate irrevocably waives all
rights to enforce or collect upon any rights which it now has or may acquire
against Seller either by way of subrogation, indemnity, reimbursement or
contribution for any amount paid under the Seller Guaranty or by way of any
other obligations whatsoever of Seller to the Seller Affiliate, nor shall the
Seller Affiliate file, assert or receive payment on any claim, whether now
existing or hereafter arising, against Seller in the event of any bankruptcy,
reorganiza tion, arrangement, liquidation or similar proceeding with respect to
Seller.
19.6. Waiver of Defenses. The Seller Affiliate absolutely, unconditionally
and irrevocably waives any and all right to assert or interpose any defense
(other than the final and indefeasible payment and performance of the Seller
Obligations), setoff, counterclaim or crossclaim of any nature whatsoever with
respect to the Seller Guaranty or the Seller Obligations.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
SELLER:
233 BROADWAY, INC., a New York corporation
By: /s/ Gary H. Brown
-------------------
Name: Gary H. Brown
Title: Vice President
PURCHASER:
233 BROADWAY OWNERS, LLC,
a New York limited liability company
By: 233 Broadway Next Generation LLC,
its managing member
By: /s/ James F. Stomber Jr.
--------------------------
Name: James F. Stomber Jr.
Title: Authorized signatory
FOR PURPOSES OF ARTICLE XVII HEREOF:
/s/ Steven C. Witkoff
-----------------------------------
Steven C. Witkoff, individually and
not in any representative capacity
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FOR PURPOSES OF ARTICLE XVIII HEREOF:
VENATOR GROUP, INC.
By: /s/ Gary H. Brown
-----------------------
Name: Gary H. Brown
Title: Vice President
The Escrow Agent hereby executes this Agreement for the sole purpose of
acknowledging receipt of the Initial Deposit and its responsibilities hereunder
and to evidence its consent to serve as Escrow Agent in accordance with the
terms of this Agreement.
ESCROW AGENT:
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
By: /s/ Benjamin F. Needell
------------------------
Name: Benjamin F. Needell
Title: Partner
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233 BROADWAY, INC.
c/o Venator Group, Inc.
233 Broadway
New York, New York 10279
September 11, 1998
233 Broadway Owners, LLC
c/o The Witkoff Group, LLC
220 East 42nd Street
New York, New York 10017
Re: Woolworth Building
Ladies and Gentlemen:
Reference is hereby made to that certain Purchase and Sale Agree- ment,
dated June 20, 1998 (the "Agreement"), by and between 233 Broadway, Inc.
("Seller"), as seller, and 233 Broadway Owners, LLC ("Purchaser"), as purchaser.
All initially capitalized terms used herein without definition and which are
defined in the Agreement shall have the meaning set forth for such terms in the
Agreement.
This will serve to confirm and clarify that the term "CBA's", as such term
is defined in Section 15.2 of the Agreement, shall, for purposes of such
Section, include any rider, amendment or addendum which may be negotiated
between the unions(s) and Purchaser as a condition of Purchaser entering into or
becoming a party or subject to the CBA's.
In addition, the second full paragraph of Section 15.1 shall be amended so
as to delete the words "Subject to Seller's Maximum Termination Responsibility,
Purchaser and Seller each hereby agrees to indemnify the other and their
respective affiliates against" from the beginning of the first sentence thereof
and to substitute therefore the words "Subject to Seller's Maximum Termination
Responsibility, Purchaser hereby agrees to indemnify Seller and its respective
affiliates against".
Lastly, Seller and Purchaser have agreed to extend the date by which Seller
and Purchaser are to have agreed upon the terms and conditions of the Venator
Lease through September 18, 1998. Thus, the references to July 15, 1998 in
Sections 18.1 and 18.2 of the Agreement are hereby replaced with references to
September 18, 1998.
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September 11, 1998
Page 2
In all other respects, the Agreement remains in full force and effect.
Very truly yours,
233 BROADWAY, INC.
By: /s/ John H. Cannon
------------------
Acknowledged and Agreed to:
233 BROADWAY OWNERS, LLC
By: 233 Broadway Next Generation LLC,
its managing member
By: /s/ James F. Stomber Jr.
------------------------
/s/ Steven C. Witkoff
- -----------------------------------
Steven C. Witkoff, individually and
not in any representative capacity
VENATOR GROUP, INC.
By: /s/ John H. Cannon
-------------------------
Name: John H. Cannon
Title:
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233 BROADWAY, INC.
VENATOR GROUP, INC.
233 Broadway
New York, New York 10279
October 13, 1998
233 Broadway Owners, LLC
and Steven C. Witkoff
c/o The Witkoff Group, LLC
220 East 42nd Street
New York, New York 10017
Re: Woolworth Building
Ladies and Gentlemen:
Reference is hereby made to that certain Purchase and Sale Agree ment,
dated June 20, 1998 (as amended by those certain letter agreements dated as of
September 11, 1998 and September 18, 1998, the "Agreement"), by and between 233
Broadway, Inc. ("Seller"), as seller, and 233 Broadway Owners, LLC
("Purchaser"), as purchaser. All initially capitalized terms used herein without
definition shall have the meaning set forth for such terms in the Agreement.
The Agreement is hereby amended to provide that the Closing Date shall be
October 15, 1998 (time being of the essence with respect thereto). Thus, the
Closing shall occur at the offices of Skadden, Arps, Slate, Meagher & Flom LLP,
919 Third Avenue, New York, New York or at the offices of Purchaser's lender's
counsel, if requested by Purchaser's lender, at 10:00 a.m. local time on October
15, 1998 (time being of the essence with respect thereto).
In all other respects, the Agreement remains in full force and effect.
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October 13, 1998
Page 2
Please signify your agreement with the foregoing by signing and dating the
enclosed counterpart of this letter where indicated below. This letter may be
executed in one or more counterparts, all of which together shall constitute one
and the same original.
Very truly yours,
233 BROADWAY, INC. VENATOR GROUP, INC.
By: /s/ John H. Cannon By: /s/ John H. Cannon
------------------ ------------------
Acknowledged and Agreed:
- -----------------------
233 BROADWAY OWNERS, LLC
By: 233 Broadway Next Generation LLC,
its managing member
By: /s/ Steven C. Witkoff
---------------------
/s/ Steven C. Witkoff
- -----------------------------------
Steven C. Witkoff, individually and
not in any representative capacity
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233 BROADWAY, INC.
233 Broadway
New York, New York 10279
October 14, 1998
233 Broadway Owners, LLC and Steven C. Witkoff
c/o The Witkoff Group, LLC
220 East 42nd Street
New York, New York 10017
Re: Woolworth Building
Ladies and Gentlemen:
Reference is hereby made to that certain Purchase and Sale Agreement, dated
June 20, 1998 (as amended by those certain letter agreements dated as of
September 11, 1998, September 18, 1998 and October 13, 1998, the "Agreement"),
by and between 233 Broadway, Inc. ("Seller"), as seller, and 233 Broadway
Owners, LLC ("Purchaser"), as purchaser. All initially capitalized terms used
herein without definition shall have the meaning set forth for such terms in the
Agreement. Purchaser and Seller have agreed to make certain further amendments
to the Agreement as and to the extent hereinafter set forth.
1. Seller and Purchaser hereby confirm that each has agreed upon the
terms and conditions of, and have finalized, the Venator Lease in
the form of Exhibit A attached hereto and Seller shall
concurrently herewith execute, and cause the tenant thereunder to
execute, such agreed-upon Venator Lease as contemplated by
Section 18.1 of the Agree ment.
2. Section 4.1.1 of the Agreement is hereby deleted in its entirety and
replaced with the following new Section 4.1.1:
"4.1.1 The closing of the purchase and sale of the Property (the
"Closing") shall be held at the offices of Skadden, Arps, Slate,
Meagher & Flom LLP, 919 Third Avenue, New York, New York or at the
offices of Purchaser's lender's counsel, if requested by Pur chaser's
lender, at 10:00 a.m. local time on December 4, 1998 (time being of
the essence with respect thereto). The date of Closing is referred to
in this Agreement as the "Closing Date". "
Section 4.1.2 of the Agreement is hereby deleted in its entirety.
3. Notwithstanding Section 3.1 of the Agreement, Escrow Agent is
hereby authorized and instructed to immediately release the
Initial Deposit, together with all interest earned thereon to
date, to or at the direction of Seller and upon such release
Escrow
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Steven C. Witkoff
October 14, 1998
Page 2
Agent shall be relieved and released from any liability under the
Agreement. Upon consummation of the Closing, as contemplated by
the Agreement, Purchaser shall be entitled to receive a credit
against the Purchase Price equal to $44,370.64, such amount being
one-half (50%) of the amount of interest earned through October
14, 1998 on the Initial Deposit.
4. The definition of the term "Purchase Price", as such defined term
appears in Section 2.1 of the Agreement, is hereby amended so as
to delete therefrom the reference to $146,500,000 and to
substitute therefor a reference to $126,500,000.
5. Clause (ii) of Section 2.1 of the Agreement is hereby amended and
restated in its entirety to read as follows:
"(ii) Five Million Dollars ($5,000,000) (the "First Additional
Deposit") shall be paid directly to or at the direction of the Seller
by wire transfer of immediately available federal funds on or before
5:00 p.m. on October 19, 1998 (the "First Additional Deposit Payment
Date") (time being of the essence with respect thereto). Two Million
Five Hundred Thousand Dollars ($2,500,000) (the "Sec ond Additional
Deposit") shall be paid directly to or at the direction of the Seller
by wire transfer of immediately available federal funds on or before
5:00 p.m. on November 9, 1998 (the "Second Additional Deposit Payment
Date") (time being of the essence with respect thereto). Seven Million
Five Hundred Thousand Dollars ($7,500,000) (the "Third Additional
Deposit") shall be paid directly to or at the direction of the Seller
by wire transfer of immediately available federal funds on or before
5:00 p.m. on November 16, 1998 (the "Third Additional Deposit Payment
Date") (time being of the essence with respect thereto). The First
Additional Deposit, the Second Additional Deposit and the Third
Additional Deposit are collectively referred to herein as the
"Additional Deposit", and the Initial Deposit and the Additional
Deposit are collectively referred to herein as the "Deposit." In the
event that Purchaser shall fail for any reason to so pay any of the
First Additional Deposit or the Second Additional Deposit or the Third
Addi tional Deposit on the First Additional Deposit Payment Date and
the Second Additional Deposit Payment Date and the Third Additional
Deposit Payment Date, respectively, then Purchaser shall be in
material default under this Agreement and this Agreement shall
automatically terminate without further action by the parties and
neither party shall have any further rights or obligations hereunder
other than Purchaser's obligation to pay any remaining unpaid portion
of the Deposit to Seller, which shall expressly survive any such
termination. Payment of the First Additional Deposit is guaranteed by
Steven C. Witkoff (the "Guarantor") in accordance with the provisions
of Article XVII hereof."
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Steven C. Witkoff
October 14, 1998
Page 3
Payment of the Additional Deposit shall be made pursuant to Seller's wire
transfer instructions attached hereto as Exhibit D, or such other wire transfer
instructions as Seller may deliver to Purchaser in accordance with Section 16.1
of the Agreement.
The provisions of Article III of the Agreement with respect to the
maintenance, retention, and release of the Deposit by the Escrow Agent in escrow
are hereby deleted and of no further force or effect, except that Purchaser's
and Seller's indemnification obliga tions in favor of the Escrow Agent shall
survive.
From and after the release of the Initial Deposit to Seller as provided
hereby, references in the Agreement to payments of the Additional Deposit and/or
the Deposit to or by Escrow Agent shall be deemed to be references to payments
to or by Seller, as the case may be. Without limiting the foregoing, Seller
agrees to deliver and apply the Deposit as provided in Section 3.2 of the
Agreement.
6. (a) Steven C. Witkoff, by his signature hereto, hereby ratifies and
confirms his guaranty of the payment of the First Additional Deposit (as
modified pursuant to this letter agreement) in accordance with the
provisions of Article XVII of the Agree ment. Notwithstanding anything to
the contrary contained herein or in the Agreement, all references in
Article XVII to the "Additional Deposit" shall be deemed to be references
to the First Additional Deposit.
(b) Venator Group, Inc., by its signature hereto, hereby ratifies and
confirms its guaranty of the Seller Obligations (as modified pursuant to this
letter agree ment) in accordance with the provisions of Article XIX of the
Agreement.
7. Purchaser hereby acknowledges its receipt and approval of copies of the
Estoppel Certificates received by the Seller from each of the Tenants
identified on Exhibit B hereto and acknowledges and agrees that the
Seller's obligations under Section 8.7 and Section 9.2.3 of the Agreement
have been fully satisfied (other than with respect to delivery of Estoppel
Certificates from Seller and Seller's Affiliates) and that Purchaser shall
have no right to terminate the Agreement, nor shall Purchaser be entitled
to a reduction of the Purchase Price or otherwise be relieved from its
obligations under the Agreement on account of any statement made or
information contained in any such Estoppel Certificate. Without limiting
the generality of the foregoing, Purchaser acknowl edges and agrees that
(A) Seller shall have no basis to object to any of the Estoppel
Certificates on the basis that any of the same are dated more than thirty
(30) days prior to the Closing Date provided for herein and (B) Seller
shall not be required to provide, and the Closing shall in no event be
conditioned upon the Purchaser's receipt of, any further Estoppel
Certificates from any Tenants or an Estoppel Certificate executed by Seller
with
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respect to Leases for any Tenants, other than Estoppel Certificates from all
affiliates of Seller occupying all or any portion of the Property (including,
without limitation, an Estoppel Certificate from Venator Group Inc. with respect
to the Venator Lease) which Seller will cause to be delivered to Purchaser on
the Closing Date, dated as of the Closing Date.
8. Exhibit C to the Agreement is hereby deleted and replaced with Exhibit C
attached hereto and made a part hereof. Purchaser agrees to accept title to
the Property subject to those matters set forth on, and in the manner shown
on, Exhibit C attached hereto and any other matters caused, created or
consented to by Purchaser.
9. Purchaser acknowledges its receipt of copies of (i) a complaint filed in
the Supreme Court of the State of New York, County of New York in an action
entitled Harry's at the Woolworth Building, Inc. vs. Venator Group
Speciality, Inc. (f/k/a F.W. Woolworth Co.) (Index No. 98/604764) (the
"Harry's Action") and (ii) a notice of appeal filed in the civil court of
the City of New York, County of New York in an action entitled F.W.
Woolworth Co. against Harad Realty Corp. and Harry's at the Woolworth
Building, Inc. (Index No. L&T 81281/98) (the "Landlord- Tenant Action" and,
collectively, with the Harry's Action, the "Harry's Litigation"). Schedules
2 and 7 of the Agreement and Seller's representations contained in Section
6.1.4(ii) are each hereby amended to refer to the Harry's Litigation, and
the allegations contained therein, as well as a certain offer of settlement
made by Harry's at the Woolworth Building, Inc. (the "Plaintiff") in
connection therewith. Seller represents and warrants that together herewith
it has delivered to Pur chaser copies of the material court filings in the
Harry's Litigation and shall hereafter deliver to Purchaser any future
court filings as well as such other information as Purchaser may reasonably
request. Purchaser acknowledges and agrees that, at the Closing, Pur chaser
shall take title to the Property subject to the pendency of and any relief
afforded to the Plaintiff in the Harry's Litigation, if any, provided,
however that Seller agrees that (a) it shall indemnify, defend and hold the
Purchaser harmless from and against any claims or judgments for monetary
damages awarded to the Plaintiff in the Harry's Litigation and reasonable
out-of-pocket costs and expenses related thereto, including, without
limitation, any abatement, set-off or reductions of the rent now or
hereafter due and owing under the Plaintiff's lease for the period prior to
the Closing Date and/or damages, or reasonable out- of-pocket costs or
expenses arising out of any court-ordered modification of such lease (and
Seller shall continue to defend and prosecute the Harry's Action subsequent
to the Closing (if it is not sooner resolved)), (b) it shall use
commercially reasonable efforts prior to the Closing to cause the eviction
of the Plaintiff from the Property pursuant to the Landlord-Tenant Action,
(c) it shall not modify or amend the Plaintiff's Lease or waive any default
thereunder without the approval of Purchaser and (d) it shall not settle
the Harry's Action or the Landlord-Tenant Action in any manner which would
permit the Plaintiff to
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retain occupancy of its premises subsequent to the Closing Date without
Purchaser's consent. From and after the Closing Date, Purchaser shall take
over and have all rights and responsibilities in, and shall take the
Property subject to, the Landlord-Tenant Action and matters relating to the
Plaintiff's possession of the Property and the Plaintiff's Lease, except
with respect to monetary claims under the Harry's Action, which Seller
shall continue to prosecute and defend (if not sooner resolved) as set
forth above and monetary judgments under the Landlord-Tenant Action (to
which Seller is and shall remain entitled to retain). Purchaser and Seller
each agree to reasonably co-operate with the other in connection with the
Harry's Action and the Landlord-Tenant Action subsequent to the Closing.
The provisions of the Section 9 shall survive the Closing.
10. Section 12.1 of the Agreement is hereby amended to provide that in the
event the Closing and the transactions contemplated by the Agreement (as
amended by this letter agreement) do not occur as provided in the Agreement
(as amended by this letter agree ment) by reason of the default of Seller,
Purchaser's sole remedy shall be to terminate the Agreement and receive the
Deposit from Seller. Without limiting the generality of the foregoing,
Purchaser hereby irrevocably waives any right to (and agrees not to seek or
prosecute any action to) enforce specific performance of, or seek other
equitable relief or actions under, the Agreement in the event the Closing
and the transactions contemplated thereby do not occur as provided therein
by reason of the default of Seller.
11. Purchaser agrees that it shall, on or before October 23, 1998, deliver to
CT Corporation for filing with the New York Secretary of State, an
amendment to the Articles of Organization of Purchaser providing the
following (the "Articles Amendment"):
"Notwithstanding anything to the contrary contained in these Articles, the
sole business and purpose of the Company shall be the acquisition of the
property located at 233 Broadway, New York, New York (the "Property") and
to exercise all powers enumerated in the LLC Law necessary or convenient to
the conduct, promotion or attainment of such purpose. From the date hereof
through the date of the Company's acquisition of the Property, the Company
shall have an independent member (the "IM"), who shall have no financial
interest in the Company or affiliation (as employee, owner or otherwise)
with The Witkoff Group, LLC. The IM shall be an employee of CT Corporation
or shall otherwise be reasonably acceptable to 233 Broadway, Inc.
("Seller"), and any individual IM may be replaced at any time, upon request
of the Company, by another individual IM employed by CT Corporation or
otherwise reasonably acceptable to Seller. The Company may not commence a
bankruptcy proceeding without the consent of the IM. The IM shall have no
rights or interests in the Company or otherwise with respect to the Company
or the Property and shall have no right to vote on any issue, other than
the right to grant or withhold its consent pursuant to the immediately
preceding sentence. Notwithstanding any provision hereof to the contrary,
the following shall govern: When acting on matters
247306.08-New YorkS4A
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233 Broadway Owners, LLC and
Steven C. Witkoff
October 14, 1998
Page 6
subject to the vote of the members, notwithstanding that the Company is not
then insol vent, all of the members shall take into account the interest of
the Company's creditors, as well as those of the members. The terms of this
paragraph shall be null and void from and after the date of the Company's
acquisition of the Property or on any earlier date with Seller's consent
(which may be granted or withheld in Seller's sole and absolute discre
tion)."
Seller agrees to act reasonably and promptly in granting its written consent to
an IM and to any replacement IM. At the Closing, upon the request of Purchaser,
Seller shall execute any confirmation reasonably requested by Purchaser in order
to amend its Articles to delete the Articles Amendment. In the event that (i)
Purchaser fails to deliver the Articles Amendment as set forth above on or
before October 25, 1998; or (ii) Purchaser amends its Articles to modify or
remove the Articles Amendment prior to Closing without Seller's consent; or
(iii) Purchaser breaches the Articles Amendment, then (x) Purchaser shall be in
material default under the Agreement and the Additional Deposit shall be
immediately due and payable to or at the direction of Seller and, when paid,
shall be non-refundable and (y) if such failure, modification or breach shall
continue for two (2) business days after notice from Seller, then Seller shall
be entitled to terminate the Agreement and neither party shall have any further
rights or obligations thereunder, other than Purchaser's obligation to pay any
remaining unpaid portion of the Deposit to Seller.
12. The second and third grammatical sentences of Section 8.1 of the Agreement
are hereby deleted and replaced with the following:
"Subsequent to the Closing, Purchaser has the right, but not the
obligation, to undertake certain repairs to the facade of the Improvements
substantially in accordance with the specifications attached hereto as
Exhibit F (the "Facade Repairs"). Seller agrees that subsequent to Closing
Purchaser may make any and all repairs it desires to the Improve ments and,
if all or any portion of the Facade Repairs are made by Purchaser, Seller
shall promptly after written request reimburse Purchaser for one-half (1/2)
of the amounts actually expended by Purchaser in connection with such
Facade Repairs, up to a maximum of $450,000 ("Seller's Share"). The
provisions of the Section 8.1 shall survive the Closing."
247306.08-New YorkS4A
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233 Broadway Owners, LLC and
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October 14, 1998
Page 7
13. The second grammatical sentence of Section 4.2.6 of the Agreement is hereby
amended to restate the proviso at the end thereof as follows: "provided,
however, that Seller shall not apply any Security Deposits to cure any
non-monetary Tenant defaults", it being expressly agreed that Seller may
apply any Security Deposits in accordance with the terms of the Leases
during the thirty (30) days prior to the Closing to cure monetary Tenant
defaults.
14. Intentionally omitted.
15. (a) Purchaser and Steven C. Witkoff hereby jointly and severally represent
and warrant to Seller that the execution, delivery and performance by the
Purchaser of this agreement and all actions taken by Purchaser hereunder
have each been duly authorized, executed and delivered by Purchaser, that
this agreement is the legal, valid and binding obligation of Purchaser, and
that neither this agreement nor any of the actions taken by Purchaser
hereunder violate any provision of any agreement or judicial order to which
Purchaser is a party or to which Purchaser or any of its constituent
members is subject. Without limiting the generality of the foregoing,
Purchaser and Steven C. Witkoff each jointly and severally specifically
represent and warrant to Seller that no consent, approval, waiver or other
authorization which has not been obtained by Purchaser and is in full force
and effect on the date hereof is required to be obtained by Purchaser in
connec tion with the execution, delivery and/or performance by Purchaser of
its obligations hereunder and under the Agreement.
(b) Seller hereby represents and warrants to Purchaser that the execu tion,
delivery and performance by the Seller of this agreement and all actions taken
by Seller hereunder have each been duly authorized, executed and delivered by
Seller, that this agreement is the legal, valid and binding obligation of
Seller, and that neither this agree ment nor any of the actions taken by Seller
hereunder violate any provision of any agreement or judicial order to which
Seller is a party or to which Seller is subject. Without limiting the generality
of the foregoing, Seller represents and warrants to Purchaser that no consent,
approval, waiver or other authorization which has not been obtained by Seller
and is in full force and effect on the date hereof is required to be obtained by
Seller in connec tion with the execution, delivery and/or performance by Seller
of its obligations hereunder and under the Agreement.
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233 Broadway Owners, LLC and
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October 14, 1998
Page 8
16. (a) Purchaser hereby confirms that, as of the date hereof, it has no
knowledge of any defenses, personal or otherwise, offsets or counterclaims
to all or any of the obligations of the Purchaser hereunder or under the
Agreement and, to the extent that any of the same are known to the
Purchaser, Purchaser hereby waives and releases the same.
(b) Seller hereby confirms that, as of the date hereof, it has no knowl
edge of any defenses, personal or otherwise, offsets or counterclaims to
all or any of the obligations of the Seller hereunder or under the
Agreement and, to the extent that any of the same are known to the Seller,
Seller hereby waives and releases the same.
17. In all other respects, the Agreement remains in full force and effect and
is hereby ratified and affirmed by the parties as modified hereby.
Please signify your agreement with the foregoing by signing and dating the
enclosed counterpart of this letter where indicated below. This letter may be
executed in one or more counterparts, all of which together shall constitute one
and the same original.
Very truly yours,
233 BROADWAY, INC.
By: /s/ John E. DeWolf III
----------------------
FOR PURPOSES OF SECTION 6(b) HEREOF:
VENATOR GROUP, INC.
By: /s/ John E. DeWolf III
----------------------
Acknowledged and Agreed:
- -----------------------
233 BROADWAY OWNERS, LLC
By: 233 Broadway Next Generation LLC,
its managing member
By: /s/ James F. Stomber Jr.
-------------------------
FOR PURPOSES OF SECTION 6(a) and SECTION 15(a) HEREOF:
/s/ Steven C. Witkoff
- -----------------------------------
Steven C. Witkoff, individually and
not in any representative capacity
247306.08-New YorkS4A
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73
EXHIBIT A
---------
FORM OF VENATOR LEASE
See Attached.
247306.08-New YorkS4A
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74
EXHIBIT B
ACCEPTED ESTOPPEL CERTIFICATES
1. Steve Golfarb and Arthur Greenberg
2. The Southmont Foundation
3. Tellerman, Paticoff & Greenberg
4. Joseph Cella
5. Mel Sachs
6. The Bank of New York
7. Friedland, Fisbein, Laifer & Robbins
8. Friedland, Fisbein, Laifer & Robbins
9. William M. Kimball
10. Stuart Shestack, Hayes Young, Michael Wofson and John Carroll
11. Jack Goldstein and Donald Wallman
12. The Basket Shop
13. BDB Development Enterprise Corp.
14. Madison Newstand VIII, Inc.
15. Russell Guba
16. Schneider, Kleinick, Weitz, Damashek, Godosky & Gentile
17. Schneider, Kleinick, Weitz, Damashek, Godosky & Gentile
18. Staat Personnel, Inc.
19. Paragon Process Service
20. Robert T. Schumpert
21. Dick Dunphy Advertising Specialties, Inc.
22. Panken, Besterman, Winer, Becker & Sherman, LLP
23. Basichas & Sherman, P.C.
24. Franklin Gould, Norman Reimer & Robert Gottfried
25. Thomas O'Rourke & Ronald Degen
26. Fasulo, Freidson & Joyce
27. Gargiulo & Co
28. Engitech Resources, Inc.
29. Revinson & Reis
30. Sheila Dugan
31. Superior Officers Council
32. Lionard Drexler
33. Mark E. Seitelman
34. Mark E. Seitelman
35. Isidore R. Tucker
36. Irving Fein, Peter Jakab, Jay B. Ringel and John M. Paige
37. Daniel McCarthy
38. Marvin Salenger and Robert Sack
39. Doar Devorkin & Rieck
40. Doar Devorkin & Rieck
41. Serving by Irving, Inc.
247306.08-New YorkS4A
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42. Eisenberg, Margolis, Friedman & Basichas
43. Stanley Young
44. William S. Hocking Realty
45. Electronic Instrument Co.
46. Fromme, Schwartz, Newman & Cornicello, LLP
47. Hanley Goble & Dennis LLP
48. Richard A. Deinst and Allan G. Serrins
49. Melito & Adolfsen, P.C.
50. Dudley Gaffin
51. Jeffrey T. Schwartz
52. Associated Commodity Corp.
53. Bruce Clark
54. Stuart Perry & David Schwarz
55. Solomon Pearl Blum & Quinn LLP
56. Melvyn Jacknowitz
57. Marcel Weisman
58. DeBlasio & Alton, P.C.
59. Downing & Mehrtens, P.C.
60. Seymour Ostrow
61. Kramer, Dillof
62. Theobald J. Dengler
63. Iannuzzi and Iannuzzi, John Nicholas Iannuzzi
64. Kaplan, Ostheimer & Kuflik (Lamb & Lerch)
65. Ginsburg, Becker & Weaver, LLP
247306.08-New YorkS4A
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76
EXHIBIT C
PRO FORMA TITLE POLICY
(See Attached)
247306.08-New YorkS4A
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77
EXHIBIT D
WIRE TRANSFER INSTRUCTIONS
Bank: M&I Marshall & Ilsley Bank, Milwaukee, WI
Abbreviated Name: MARSHALL MILW
ABA: 075000051
Credit: The Chicago Trust Company
Account No. 01-24-2202
Further Credit to: Trust Number: 385600010
Trust Name: 233 Broadway, Inc./CDEC
Telephone Confirmation: Chicago Deferred Exchange Commission
1-312-223-2931 or
1-800-621-1919 ext. 2931
Attn: Mary Cunningham
247306.08-New YorkS4A
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77
EXHIBIT E
INTENTIONALLY OMITTED
247306.08-New YorkS4A
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78
EXHIBIT F
FACADE REPAIR SPECIFICATIONS
(See Attached)
247306.08-New YorkS4A
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79
233 BROADWAY, INC.
233 Broadway
New York, New York 10279
as of November 9, 1998
233 Broadway Owners, LLC and Steven C. Witkoff
c/o The Witkoff Group, LLC
220 East 42nd Street
New York, New York 10017
Re: Woolworth Building
------------------
Ladies and Gentlemen:
Reference is hereby made to that certain Purchase and Sale Agreement, dated
June 20, 1998 (as amended by those certain letter agreements dated as of
September 11, 1998, September 18, 1998, October 13, 1998 and October 14, 1998,
the "Agreement"), by and between 233 Broadway, Inc. ("Seller"), as seller, and
233 Broadway Owners, LLC ("Purchaser"), as purchaser. All initially capitalized
terms used herein without definition shall have the meaning set forth for such
terms in the Agreement. Purchaser and Seller have agreed to make certain further
amendments to the Agreement as and to the extent hereinafter set forth.
1. Seller and Purchaser hereby confirm that clause (ii) of Section 2.1 of
the Agreement (as such clause appears in Section 5 of the October 14, 1998
amendment to the Agreement) is hereby amended so as to delete therefrom the
references to November 9, 1998 and November 16, 1998 and to substitute therefor,
in each case, a reference to November 19, 1998. Thus, the Second Additional
Deposit Payment Date and the Third Additional Payment Date shall be, and each of
the Second Additional Deposit and the Third Additional Deposit shall be due on,
November 19, 1998 (time being of the essence with respect thereto).
2. Purchaser hereby acknowledges and agrees that the Venator Lease, the
form of which is attached as Exhibit A to the October 14, 1998 amendment to the
Agreement, shall be amended in the following respects:
253036.04-New YorkS4A
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233 Broadway Owners, LLC and
Steven C. Witkoff
as of November 9, 1998
Page 2
(a) the reference, in the second (2nd) sentence of Section 28A, to 6:00
p.m. shall be deleted and a reference to 7:00 p.m. substituted in lieu thereof;
and
(b) the third (3rd) sentence of Section 28A shall be deleted in its
entirety as the following substituted therefor:
Tenant shall have the additional right, without additional charge (except
as hereinafter expressly provided), (i) to exclusively use not less than
(1) of the freight elevators (such freight elevator(s) to be designated by
Tenant) at any time during the Term on ten (10) Business Days advance
notice to Landlord (which may be telephonic) in order to relocate from the
1998 Office Space, the 1999 Office Space, the Retail Space and/or the
Kinney Storage Space to the Office Space and shall pay for any such freight
elevator usage on or after July 1, 1999 at an hourly rate equal to $75.00
during Overtime Periods, (ii) to exclusively use two (2) of the four (4)
passenger elevators serving the "tower floors" of the Woolworth Building
during Overtime Periods in order to relocate from the 1998 Office Space and
1999 Office Space located on such "tower floors" of the Woolworth Building
to the Office Space and (iii) to up to one-half (1/2) hour of reserved
freight elevator service each Business Day for the moving of fixtures and
equipment using a freight elevator to be designated by Tenant.
3. In all other respects, the Agreement remains in full force and effect and
is hereby ratified and affirmed by the parties as modified hereby.
253036.04-New YorkS4A
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233 Broadway Owners, LLC and
Steven C. Witkoff
as of November 9, 1998
Page 3
Please signify your agreement with the foregoing by signing and dating the
enclosed counterpart of this letter where indicated below. This letter may be
executed in one or more counterparts, all of which together shall constitute one
and the same original.
Very truly yours,
233 BROADWAY, INC.
By: /s/ Gary H. Brown
-----------------
ACKNOWLEDGED AND AGREED:
- -----------------------
233 BROADWAY OWNERS, LLC
By: 233 Broadway Next Generation LLC,
its managing member
By: /s/ James F. Stomber Jr.
-----------------------
/s/ Steven C. Witkoff
- ----------------------------------
Steven C. Witkoff, individually and
not in any representative capacity
VENATOR GROUP, INC.
By: /s/ Gary H. Brown
------------------
253036.04-New YorkS4A
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82
233 BROADWAY, INC.
233 Broadway
New York, New York 10279
November 19, 1998
233 Broadway Owners, LLC and Steven C. Witkoff
c/o The Witkoff Group, LLC
220 East 42nd Street
New York, New York 10017
Re: Woolworth Building
Ladies and Gentlemen:
Reference is hereby made to that certain Purchase and Sale Agreement, dated
June 20, 1998 (as amended by those certain letter agreements dated as of
September 11, 1998, September 18, 1998, October 13, 1998, October 14, 1998 and
November 9, 1998, the "Agreement"), by and between 233 Broadway, Inc.
("Seller"), as seller, and 233 Broadway Owners, LLC ("Purchaser"), as purchaser.
All initially capitalized terms used herein without definition shall have the
meaning set forth for such terms in the Agreement. Purchaser and Seller have
agreed to reinstate the Old Agreement and make certain further amendments to the
Agreement as and to the extent hereinafter set forth.
1. Seller and Purchaser hereby agree that, notwithstanding the termination of
the Agreement on November 19, 1998 in accordance with Section 2.1(ii) of
the Agreement, the Agreement is hereby reinstated on the terms and
conditions set forth therein and herein.
2. Seller and Purchaser hereby confirm that clause (ii) of Section 2.1 of the
Agreement (as such clause appears in Section 5 of the October 14, 1998
amendment to the Agreement and was amended in Section 1 of the November 9,
1998 amendment to the Agreement) is hereby amended and restated in its
entirety to read as follows:
"(ii) Five Million Dollars ($5,000,000) (the "First Additional Deposit")
shall be paid directly to or at the direction of the Seller by wire
transfer of immediately
83
233 Broadway Owners, LLC and
Steven C. Witkoff
November 19, 1998
Page 2
available federal funds on or before 5:00 p.m. on October 19, 1998 (the
"First Additional Deposit Payment Date") (time being of the essence with
respect thereto). Five Million Dollars ($5,000,000) (the "Second Additional
Deposit") shall be paid directly to or at the direction of the Seller by
wire transfer of immedi ately available federal funds on November 20, 1998
(the "Second Additional Deposit Payment Date") (time being of the essence
with respect thereto). The First Additional Deposit and the Second
Additional Deposit are collectively referred to herein as the "Additional
Deposit", and the Initial Deposit and the Additional Deposit are
collectively referred to herein as the "Deposit." Purchaser shall initiate
the wire transfer of the Second Additional Deposit and advise Seller and
its counsel in writing as to reference number applicable thereto (which
advice may be given by telecopy only) on or before 12:00 noon on the Second
Additional Deposit Payment Date. In the event that Purchaser shall fail for
any reason to so pay any of the First Additional Deposit or the Second
Additional Deposit on the First Additional Deposit Payment Date and the
Second Additional Deposit Pay ment Date, respectively, and to advise the
Seller as to the reference number applicable to the Second Additional
Deposit, then Purchaser shall be in material default under this Agreement
and this Agreement shall automatically terminate without further action by
the parties and neither party shall have any further rights or obligations
hereunder other than Purchaser's obligation to pay any remaining unpaid
portion of the Deposit to Seller, which shall expressly survive any such
termination. Payment of the First Additional Deposit is guaranteed by
Steven C. Witkoff (the "Guarantor") in accordance with the provisions of
Article XVII hereof."
3. Purchaser hereby confirms that, as of the date hereof, it has no knowledge
of any defenses, personal or otherwise, offsets or counterclaims to all or
any of the obligations of the Purchaser hereunder or under the Agreement
and, to the extent that any of the same are known to the Purchaser,
Purchaser hereby waives and releases the same.
4. Purchaser and Seller each hereby confirm that the Agreement, as reinstated
and amended by this letter agreement, constitutes the entire and final
agreement between the parties with respect to the subject matter thereof
and hereof and that there are no other agreements, written or oral, with
respect thereto or hereto. This letter agreement may not be changed,
terminated or otherwise varied, except by a writing duly executed by the
parties hereto.
5. In all other respects, the Agreement remains in full force and effect and
is hereby reinstated, ratified and affirmed by the parties as modified
hereby.
254271.02-New YorkS4A
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233 Broadway Owners, LLC and
Steven C. Witkoff
November 19, 1998
Page 3
Please signify your agreement with the foregoing by signing and dating the
enclosed counterpart of this letter where indicated below. This letter may be
executed in one or more counterparts, all of which together shall constitute one
and the same original.
Very truly yours,
233 BROADWAY, INC.
By: /s/ John H. Cannon
-------------------
ACKNOWLEDGED AND AGREED:
- -----------------------
233 BROADWAY OWNERS, LLC
By: 233 Broadway Next Generation LLC,
its managing member
By: /s/ James F. Stomber Jr.
----------------------------
/s/ Steven c. Witkoff
- -----------------------------------
Steven C. Witkoff, individually and
not in any representative capacity
VENATOR GROUP, INC.
By: /s/ John H. Cannon
-------------------
254271.02-New YorkS4A
3