METLIFE BUILDING
200 PARK AVENUE, NEW YORK, NY
PURCHASE AND
SALE AGREEMENT
BETWEEN
METROPOLITAN TOWER LIFE INSURANCE COMPANY,
a Delaware corporation,
AS SELLER,
AND
TISHMAN SPEYER DEVELOPMENT, L.L.C.,
a Delaware limited liability company,
AS PURCHASER
As of April 1, 2005
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is made as of
April 1, 2005 (the "EFFECTIVE DATE"), by and between METROPOLITAN TOWER LIFE
INSURANCE COMPANY, a Delaware corporation ("SELLER") and TISHMAN SPEYER
DEVELOPMENT, L.L.C., a Delaware limited liability company ("PURCHASER").
WITNESSETH:
ARTICLE I
PURCHASE AND SALE
SECTION 1.1 Agreement of Purchase and Sale. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase from Seller, the following:
(a) that certain tract or parcel of land situated in New York
County, New York, more particularly described in Exhibit A attached hereto and
made a part hereof, together with all rights and appurtenances pertaining to
such property, including any right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way (the property described in clause (a)
of this Section 1.1 being herein referred to collectively as the "LAND");
(b) the building (the "BUILDING") structures, fixtures and other
improvements affixed to or located on the Land, excluding fixtures owned by
tenants (the property described in clause (b) of this Section 1.1 being herein
referred to collectively as the "IMPROVEMENTS");
(c) excepting only those items of personal property more
particularly identified on Exhibit B-1 attached hereto and all items of personal
property owned by Seller or any affiliate thereof as tenant pursuant to any of
the Leases (as hereinafter defined), any and all of Seller's right, title and
interest in and to all tangible personal property located upon the Land or
within the Improvements, including, without limitation, any and all appliances,
furniture, carpeting, draperies and curtains, tools and supplies, plans,
specifications, drawings, books and building records and other items of personal
property owned by Seller (excluding cash and any software), located on and used
exclusively in connection with the operation of the Land and the Improvements,
which personal property includes without limitation the personal property listed
on Exhibit B attached hereto (the property described in clause (c) of this
Section 1.1 being herein referred to collectively as the "PERSONAL PROPERTY");
(d) excepting only Seller's interest, if any, as tenant under any
Leases and the interest of any affiliate of Seller, as tenant, under any Leases,
any and all of Seller's right, title and interest in and to the leases, licenses
and occupancy agreements and amendments thereof and any guarantees thereof,
covering all or any portion of the Real Property (as defined in Section 1.3
hereof), (the property described in clause (d) of this Section 1.1 being herein
referred to collectively
as the "LEASES"), together with all rents, reimbursements of real estate taxes
and operating expenses, and other sums due thereunder (the "RENTS") and any and
all security deposits in connection therewith, including letters of credit (the
"SECURITY DEPOSITS");
(e) any and all of Seller's right, title and interest in and to (i)
all assignable contracts and agreements (collectively, the "OPERATING
AGREEMENTS") listed and described on Exhibit C attached hereto and made a part
hereof, relating to the upkeep, repair, maintenance or operation of the Land,
Improvements or Personal Property, and (ii) all assignable existing warranties
and guaranties (express or implied) issued to Seller in connection with the
Improvements or the Personal Property, and (iii) all assignable existing
permits, licenses, approvals, authorizations and certificates of occupancy
issued by any governmental authority in connection with the Property (the
property described in clause (e) of this Section 1.1 being sometimes herein
referred to collectively as the "INTANGIBLES"); and
(f) such right, title and interest, if any, Seller may have in and
to that certain grant of term dated October 29, 1959, recorded in the Office of
the Register of the City of New York, County of New York, in Liber 5123 cp 235,
as amended by Agreement dated April 19, 1961, recorded in said Office in Liber
5151, cp 676 and by Agreement dated as of June 15, 1963 recorded in said Office
in Liber 5244, cp 402 (the "GRANT OF TERM"); and that certain Agreement of Lease
dated as of October 30, 1959, a memorandum of which was recorded in said Office
in Liber 5104, cp 598, as amended by certain Agreements dated as of June 27,
1960, April 19, 1961 and June 4, 1963, which were recorded in said Office in
Liber 5152, cp 16, Liber 5152, cp 1 and Liber 5244, cp 410, respectively (the
"PRIME LEASE"); (the Grant of Term and Prime Lease being sometimes herein
referred to collectively as the "GROUND LEASE").
SECTION 1.2 Reservation of Existing Signs. It is expressly agreed by the
parties hereto that Seller does except from the sale of the Property hereunder
and reserve to and for the benefit of itself and its successors and assigns, all
signs, sign panels, logos, names, insignias and other identifying symbols and
marks that, as of the date hereof, name, identify, signify, or otherwise pertain
or refer to MetLife, Met Life and the MetLife Building 200 Park Avenue and the
conduits, equipment, utility lines and facilities and appurtenances serving,
supplying, benefiting and securing the same in place (collectively the "Existing
Signs") including specifically, without limitation, the illuminated signs, logos
and insignias located near the top of each of the exterior facades of the
Building, all as more particularly described and illustrated on Exhibit A-1
attached hereto. It is further acknowledged by the parties hereto, that Seller
shall (or has) retained and/or granted, conveyed and assigned all right, title
and interest in and to any and all such Existing Signs, together with all
rights, reservations and easements to use, repair, replace, illuminate, modify
and assign same, all as more particularly described in, and pursuant to, that
certain perpetual easement to be contained in and reserved to and for the
benefit of Seller and its successors and assigns in the Deed; as the same may be
hereinafter assigned pursuant to the terms thereof.
SECTION 1.3 Property Defined. The Land and the Improvements are
hereinafter sometimes referred to collectively as the "REAL PROPERTY." The Land,
the Improvements, the Ground Lease, the Personal Property, the Leases and the
Intangibles are hereinafter sometimes referred to collectively as the
"PROPERTY."
SECTION 1.4 Purchase Price. Seller is to sell and Purchaser is to purchase
the Property for the amount of ONE BILLION SEVEN HUNDRED TWENTY MILLION and
00/100 DOLLARS ($1,720,000,000.00) (the "PURCHASE PRICE").
SECTION 1.5 Payment of Purchase Price. The Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, shall be payable in
full at Closing in cash by wire transfer of immediately available funds to the
bank account or accounts designated by Seller in writing to Purchaser prior to
the Closing.
SECTION 1.6 Deposit. Concurrently with the execution and delivery of this
Agreement, Purchaser has deposited in escrow with JP Morgan Chase Bank, N.A.
(the "ESCROW AGENT"), having its office at c/o New York Escrow Services, 4 New
York Plaza, 21st Floor, New York, New York 10004 (ABA No: 021-000-021; Account
Number: 507955013), the sum of ONE HUNDRED MILLION and 00/100 DOLLARS
($100,000,000.00) (such sum, together with any and all interest earned thereon,
the "DEPOSIT") in good funds, either by certified bank or cashier's check or by
federal wire transfer. The Escrow Agent shall hold the Deposit in an
interest-bearing account reasonably acceptable to Seller and Purchaser, in
accordance with the terms and conditions of this Agreement. All interest earned
on the Deposit shall become a part of the Deposit, shall be credited against the
balance of the Purchase Price due from Purchaser at Closing, and shall be deemed
income of Purchaser. Purchaser and Seller shall each be responsible for the
payment of one-half of all costs and fees imposed on the Deposit account. The
Deposit shall be distributed in accordance with the terms of this Agreement. The
failure of Purchaser to timely deliver any Deposit hereunder shall be a material
default, and shall entitle Seller, at Seller's sole option, to terminate this
Agreement immediately.
SECTION 1.7 Escrow Agent. Escrow Agent shall hold and dispose of the
Deposit in accordance with the terms of this Agreement. Seller and Purchaser
agree that the duties of the Escrow Agent hereunder are purely ministerial in
nature and shall be expressly limited to the safekeeping and disposition of the
Deposit in accordance with this Agreement. Escrow Agent shall incur no liability
in connection with the safekeeping or disposition of the Deposit for any reason
other than Escrow Agent's willful misconduct or gross negligence. In the event
that Escrow Agent shall be in doubt as to its duties or obligations with regard
to the Deposit, or in the event that Escrow Agent receives conflicting
instructions from Purchaser and Seller with respect to the Deposit, Escrow Agent
shall not disburse the Deposit and shall, at its option, continue to hold the
Deposit until both Purchaser and Seller agree in writing as to its disposition
or until a final judgment is entered by a court of competent jurisdiction
directing its disposition, or Escrow Agent shall interplead the Deposit in
accordance with the laws of the state in which the Property is located.
Escrow Agent shall not be responsible for any interest on the
Deposit except as is actually earned, or for the loss of any interest resulting
from the withdrawal of the Deposit prior to the date interest is posted thereon
or for any loss caused by the failure, suspension, bankruptcy or dissolution of
the institution in which the Deposit is deposited.
Escrow Agent shall dispose of the Deposit in accordance with written
instructions jointly executed by both Seller and Purchaser or as directed by
order of a court of competent jurisdiction.
Escrow Agent shall execute this Agreement solely for the purpose of
being bound by the provisions of Sections 1.6 and 1.7 hereof.
ARTICLE II
TITLE AND SURVEY
SECTION 2.1 Title Inspection Period. Purchaser acknowledges and agrees
that (a) Seller has furnished to Purchaser prior to the Effective Date: (i) a
current preliminary title report dated January 24, 2005, ("Title Commitment")
issued by Chicago Title Insurance Company on the Real Property, accompanied by
copies of all documents referred to in the report; (ii) a copy of the land title
survey (the "Survey") prepared by Earl B. Lowell - S.P. Belcher, Inc. dated
August 19, 1963, as updated by visual inspection as of February 23, 2005, for
the Land and the Improvements; and (iii) copies of the most recent property tax
bills for the Property; (b) Purchaser has had an opportunity, prior to the
Effective Date, to order its own title report and survey for the Land and
Improvements; and (c) any and all matters (the " Existing Title, and Survey
Matters") referred to, reflected in or disclosed by, the materials referred to
in the Title Commitment (other than Exceptions numbered 32 through 57) and the
Survey, inclusive, have been agreed to and accepted by Purchaser and that, as of
the Effective Date, Purchaser has approved the Existing Title and Survey Matters
and the condition of title, including, without limitation, the Ground Lease, to
the Real Property, and the Existing Title and Survey Matters shall constitute
Permitted Exceptions.
SECTION 2.2 Pre-Closing "Gap" Title Defects. Purchaser may, after the
Effective Date but prior to the Closing, notify Seller in writing (the "Gap
Notice") of any objections to title (a) raised by the Title Company between the
Effective Date and the Closing and (b) not disclosed by the Title Company or
otherwise known to Purchaser prior to the Effective Date; provided that
Purchaser must notify Seller of such objection to title within two (2) business
days of being made aware of the existence of such exception. If Purchaser issues
a Gap Notice to Seller, Seller shall have five (5) business days after receipt
of the Gap Notice to notify Purchaser (a) that Seller will remove such
objectionable exceptions from title on or before the Closing; provided that
Seller may extend the Closing for such period as shall be required to effect
such cure, but not beyond thirty (30) days; or (b) that Seller elects not to
cause such exceptions to be removed. The procurement by Seller of a commitment
for the issuance of the Title Policy (as defined in Section 2.5 hereof) or an
endorsement thereto (in form and substance reasonably acceptable to Purchaser)
insuring Purchaser against any title exception which was disapproved pursuant to
this Section 2.2 shall be deemed a cure by Seller of such disapproval. If Seller
gives Purchaser notice under clause (b) above, Purchaser
shall have five (5) business days in which to notify Seller that Purchaser will
nevertheless proceed with the purchase and to take title to the Property subject
to such exceptions, or that Purchaser will terminate this Agreement. If this
Agreement is terminated pursuant to the foregoing provisions of this paragraph,
then neither party shall have any further rights or obligations
hereunder (except for any indemnity obligations of either party pursuant to the
other provisions of this Agreement), the Deposit shall be returned to Purchaser
and each party shall bear its own costs incurred hereunder. If Purchaser shall
fail to notify Seller of its election within said five-day period, Purchaser
shall be deemed to have elected to proceed with the purchase and take title to
the Property subject to such exceptions. Notwithstanding anything to the
contrary contained in this Article II, Seller agrees that it shall at or prior
to Closing: (i) with respect to mechanics liens against the Property (unless the
same is the obligation of any tenant under any of the Leases), provided
Purchaser furnishes Seller with written notice of the same within five (5)
business days of Purchaser being made aware of the same, cure or remove the same
by bonding or by agreeing to execute and deliver to the Title Company such
documents in form, scope and substance satisfactory to Seller, that the Title
Company, in its reasonable discretion, may request or require in order to remove
from Schedule B of Purchaser's title insurance policy such mechanics or
materialmen liens; (ii) with respect to judgment liens against Seller or its
affiliates, Seller agrees to deliver to the Title Company, Seller's agreement to
indemnify the Title Company against the enforcement of such judgments against
the Property, or such other agreement of Seller as is mutually satisfactory to
Seller and the Title Company; (iii) cure or remove other defects in title to the
Property that can be cured or removed by the payment of a sum of money in a
liquidated amount that does not exceed, in the aggregate, Five Million and
00/100 Dollars ($5,000,000.00); and (iv) to remove encumbrances against the
Property willfully caused by Seller after the Effective Date; however nothing in
this paragraph shall be deemed or construed to imply that Seller has any
obligation to take any such action with respect to any of the Permitted
Exceptions (as hereinafter defined). Notwithstanding anything to the contrary
contained or implied in this Agreement, it is understood and agreed that Seller
shall not be required to bring any action or proceeding in order to cure or
remove any defects in or objections to title in the Property.
SECTION 2.3 Permitted Exceptions. The Property shall be conveyed subject
to the following matters, which are hereinafter referred to as the "PERMITTED
EXCEPTIONS":
(a) all liens, encumbrances, easements, covenants, conditions and
restrictions affecting the Property which are set forth in the Title Commitment
(other than Exceptions numbered 32 through 57) and not set forth in the Gap
Notice or if set forth in the Gap Notice, (x) are those which Seller has elected
not to remove or cure, or has been unable to remove or cure and (y) subject to
which Purchaser has elected to accept the conveyance of the Property;
(b) those matters that either are not objected to in writing within
the time periods provided in Section 2.2 hereof, or if objected to in writing by
Purchaser, are those which Seller has elected not to remove or cure, or has been
unable to remove or cure, and subject to which Purchaser has elected or is
deemed to have elected to accept the conveyance of the Property;
(c) the rights of tenants under the Leases;
(d) the rights of the Seller and/or any affiliate thereof, as
tenant, under those certain Leases to be entered into between Seller and
Metropolitan Life Insurance Company for premises located on portions of the 12th
floor, 32nd floor, 40th floor, 57th floor and the 56th floor of the Building;
(e) all rights reserved to Seller and its successors and assigns
with respect to the Existing Signs as more particularly described in the Deed;
(f) the lien of all ad valorem real estate taxes and assessments and
taxes and assessments levied against the Property resulting from its inclusion
in the Grand Central Partnership Business Improvement District, not yet due and
payable as of the date of Closing, subject to adjustment as herein provided;
(g) local, state and federal laws, ordinances or governmental
regulations, including but not limited to, building and zoning laws, ordinances
and regulations, now or hereafter in effect relating to the Property;
(h) items shown on the Survey and not objected to by Purchaser or
waived or deemed waived by Purchaser in accordance with Section 2.2 hereof.; and
(i) the temporary certificate of occupancy for the Property.
SECTION 2.4 Violations. Purchaser shall accept title to the Property
subject to any note or notices of violations of Law or municipal ordinances,
orders or requirements noted or issued by any governmental department having
jurisdiction over the Property, against or affecting the Property, or relating
to conditions thereat at the date hereof or the Closing.
SECTION 2.5 Conveyance of Title. At Closing, Seller shall convey and
transfer to Purchaser fee simple title to the Land and Improvements, by
execution and delivery of the Deed (as defined in Section 4.2(a) hereof). If at
the Closing there shall be any liens, encumbrances or charges effecting title
which are not permitted pursuant to this Agreement, Seller may, at Seller's
option, upon request from Seller to Purchaser, require Purchaser to apply such
portion of the Purchase Price as shall be necessary to discharge such liens,
encumbrances and charges and pay the recording fees for the same, and in such
event, Seller shall deliver to Purchaser instruments in recordable form
sufficient to discharge the same of record. Evidence of delivery of such title
shall be the issuance by Chicago Title Insurance Company (the "TITLE COMPANY"),
or another national title company, of a 1992 ALTA Owner's Policy of Title
Insurance (the "TITLE POLICY") covering the Real Property, in the full amount of
the Purchase Price, subject only to the Permitted Exceptions.
ARTICLE III
REVIEW OF PROPERTY
SECTION 3.1 Right of Inspection. Purchaser acknowledges and agrees that it
has had an opportunity prior to the Effective Date to make any and all physical,
environmental and other inspections of the Property as Purchaser has deemed
necessary and / or appropriate in connection with the transaction contemplated
by this Agreement, and that Purchaser has agreed, subject to the provisions of
Section 2.2 and Article VII hereof, to accept the Property at the Closing in the
condition that exists on the Effective Date, reasonable wear and tear excepted.
Purchaser further acknowledges and agrees that it has prior to the Effective
Date has had access to due diligence files made available on the website (via
peracom.com) for the Property and has had the opportunity to examine at the
Property (or the property manager's office, as the case may be) documents and
files located at the Property or the property manager's office concerning the
leasing, maintenance and operation of the Property (including without
limitation, copies of permits, licenses, certificates of occupancy, plans and
specifications, and insurance certificates related to the Property, to the
extent in Seller's or the property manager's possession), but excluding Seller's
partnership or corporate records, internal memoranda, financial projections,
budgets, appraisals, accounting and tax records and similar proprietary,
confidential or privileged information (collectively, the "CONFIDENTIAL
DOCUMENTS").
It is further agreed by the parties hereto that in no event shall
Purchaser provide any governmental entity or agency with information concerning
the environmental condition of the Property without first obtaining Seller's
prior written consent thereto, which Seller shall provide in the event that
Purchaser is required by applicable law to provide such information to a
governmental agency or entity.
Purchaser agrees to protect, indemnify, defend and hold Seller harmless
from and against any claim for liabilities, losses, costs, expenses (including
reasonable attorneys' fees), damages or injuries arising out of or resulting
from the inspection of the Property at any time by Purchaser, its agents,
employees, representatives or consultants or any act or omission by Purchaser or
its agents, employees or consultants, and notwithstanding anything to the
contrary in this Agreement, such obligation to indemnify and hold harmless
Seller shall survive Closing or any termination of this Agreement.
SECTION 3.2 (a) Property Reports. PURCHASER ACKNOWLEDGES THAT PRIOR TO THE
EFFECTIVE DATE (1) PURCHASER HAS RECEIVED COPIES OF THE ENVIRONMENTAL AND OTHER
REPORTS LISTED ON EXHIBIT D ATTACHED HERETO AND HAS HAD MADE AVAILABLE TO IT BY
SELLER OTHER PROPERTY REPORTS IN SELLER'S POSSESSION, AS MORE PARTICULARLY
LISTED ON EXHIBIT D-1 ATTACHED HERETO, (COLLECTIVELY, THE "PROPERTY REPORTS")
(2) IF SELLER DELIVERS ANY ADDITIONAL ENVIRONMENTAL REPORTS TO PURCHASER,
PURCHASER WILL ACKNOWLEDGE IN WRITING THAT IT HAS RECEIVED SUCH REPORTS PROMPTLY
UPON RECEIPT THEREOF, AND (3) ANY PROPERTY REPORTS DELIVERED OR TO BE DELIVERED
BY SELLER OR MADE AVAILABLE BY SELLER OR ITS AGENTS OR CONSULTANTS TO PURCHASER
ARE BEING MADE AVAILABLE SOLELY AS AN ACCOMMODATION TO PURCHASER AND MAY NOT BE
RELIED UPON BY PURCHASER IN CONNECTION WITH THE PURCHASE OF THE PROPERTY.
PURCHASER AGREES THAT SELLER SHALL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER
FOR ANY INACCURACY IN OR OMISSION FROM ANY PROPERTY REPORT. PURCHASER
ACKNOWLEDGES AND AGREES THAT IT HAS PRIOR TO THE EFFECTIVE DATE CONDUCTED ITS
OWN INVESTIGATION OF THE ENVIRONMENTAL, STRUCTURAL, ARCHITECTURAL, MECHANICAL
AND PHYSICAL CONDITION OF THE PROPERTY TO THE EXTENT PURCHASER DEEMED SUCH AN
INVESTIGATION TO BE NECESSARY OR APPROPRIATE AND PURCHASER HAS APPROVED OF THE
PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AS OF THE EFFECTIVE DATE.
THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING OR OTHER TERMINATION OF
THIS AGREEMENT.
(b) Reliance Letters. At Purchaser's request, Seller agrees to request in
writing that such consultants who have issued a Property Report addressed to
Seller provide a Reliance Letter to Purchaser.
SECTION 3.3 Review of Tenant Estoppels. Seller shall deliver copies of
completed estoppel certificates in substantially the form of Exhibit E attached
hereto (the "Tenant Estoppels"), that meet the tenant estoppel standards
hereinafter described, to Purchaser on the Effective Date, and thereafter, as
Seller receives them but in any event, no later than three (3) days prior to the
Closing. Purchaser shall notify Seller in writing within three (3) business days
of receipt of any Tenant Estoppel in the event Purchaser determines such Tenant
Estoppel is not acceptable to Purchaser along with the reasons for such
determination; however it is understood and agreed that any Tenant Estoppel
shall not be deemed or determined to be unacceptable if in the form attached as
Exhibit E or in the form required by the applicable Lease unless it (i)
identifies a material default under the applicable Lease not previously
disclosed to Purchaser or (ii) discloses material discrepancies between the
Tenant Estoppel and the terms of the applicable Lease made available to
Purchaser. In the event Purchaser fails to give such notice within such three
(3) business day period then any such Tenant Estoppel shall be deemed to be
acceptable to Purchaser.
In the event that Seller fails to obtain the Tenant Estoppels that are
satisfactory or deemed satisfactory to Purchaser with respect to tenants of the
Property that meet the tenant estoppel standards described (or in lieu thereof,
at Seller's option, Seller's estoppels therefor) on Exhibit F attached hereto,
on or before three (3) days prior to Closing, Purchaser shall have the right to
terminate this Agreement by written notice to Seller. Notwithstanding the
immediately succeeding sentence hereof, if Purchaser has not received the Tenant
Estoppels by the third day prior to the Closing, Seller shall have the right to
extend the Closing for up to five (5) business days so that Seller may determine
whether the Tenant Estoppels can be provided during such extended period. If
Seller exercises the right to extend the Closing and if the Tenant Estoppels are
not provided within such five (5) business day period or if same are received
but same are not satisfactory to Purchaser, for the reasons permitted under this
Agreement, Purchaser shall have the right to terminate this Agreement by written
notice to Seller upon the expiration of such five (5) business day period. If
this Agreement is terminated pursuant to the foregoing provisions of this
paragraph, then neither party shall have any further rights or obligations
hereunder (except for any indemnity obligations of either party pursuant to the
other provisions of this Agreement), the Deposit shall be returned to Purchaser
and each party shall bear its own costs incurred hereunder. If Purchaser fails
to give Seller a notice of termination as set forth above, Purchaser shall be
deemed to have
approved the Tenant Estoppels and to have elected to proceed with the purchase
of the Property pursuant to the terms hereof.
Notwithstanding the foregoing, Seller shall have, with respect to up to
three (3) Major Tenants (as defined on Exhibit F) and any other tenant only, the
option to provide its own estoppel in the form of Exhibit E-1 attached hereto in
lieu of any required Tenant Estoppel which Seller fails to obtain (the "Seller
Estoppel Form"). In the event that such option is exercised, at least three (3)
business days prior to the Closing, Seller shall deliver to Purchaser the Seller
Estoppel Form or Forms that Seller intends to execute for each tenant for whom a
Tenant Estoppel has not been received with all blanks filled in and information
inserted therein.
The representations and warranties set forth in any Seller Estoppel Form
shall survive the Closing for a period of one hundred eighty (180) days after
the Closing and Seller's liability to Purchaser for a breach of any
representation or warranty set forth in any Seller Estoppel Form shall be equal
to the Seller's Estoppel Cap (as hereinafter defined) and shall not be subject
to the Cap limitations of Section 5.4 hereof. As used herein, "Seller's Estoppel
Cap" shall mean (a) Ten Million and 00/100 Dollars ($10,000,000.00) in the
aggregate. Any Tenant Estoppel which is received from a tenant after Seller
provides its own estoppel may be substituted for Seller's Estoppel Form and
Seller shall have no further liability thereunder, provided that such Tenant
Estoppel contains no changes or, if changed, is otherwise reasonably acceptable
to Purchaser. The provisions of this Section 3.3 shall survive the Closing.
SECTION 3.4 Union Employees. Purchaser shall be obligated to and hereby
agrees to continue to employ, or cause its property manager or cleaning
contractor to continue to employ, after the Closing, union employees employed at
the Property as of the Closing, which includes without limitation, the employees
referenced on Exhibit S attached hereto and made a part hereof. The terms of the
immediately preceding sentence shall survive Closing. At the Closing, Purchaser
shall join with Seller in executing notices pursuant to the union contracts
referred to on Exhibit T hereto, substantially in form of Exhibit U attached
hereto and made a part hereof, which Purchaser shall send to such party or
parties identified in such notices.
ARTICLE IV
CLOSING
SECTION 4.1 Time and Place. The consummation of the transaction
contemplated hereby (the "CLOSING") shall be held at the offices of Seller,
subject to Seller's option as hereinafter described. Purchaser acknowledges that
it is a material condition to the obligations of Purchaser under this Agreement
that the Closing occur not later than May 4, 2005. Purchaser, subject to the
second paragraph of Section 3.4, Section 2.2 and Article VII hereof, shall not
be entitled to any adjournment of the Closing beyond May 10, 2005, time being of
the essence as to the performance of Purchaser's obligations hereunder by such
date. At the Closing, Seller and Purchaser shall perform the obligations set
forth in, respectively, Section 4.2 and Section 4.3 hereof, the performance of
which obligations shall be concurrent conditions; provided that the Deed and the
Assignment of Ground Lease shall not be recorded until Seller receives
confirmation that Seller has received the full amount of the Purchase Price,
adjusted by prorations as set forth herein. At
Seller's option, the Closing shall be consummated through an escrow administered
by Escrow Agent pursuant to additional escrow instructions that are consistent
with this Agreement. In such event, the Purchase Price and all documents shall
be deposited with the Escrow Agent as escrowee.
SECTION 4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed Bargain And Sale Deed
Without Covenants Against Grantor's Acts (the "DEED") which shall contain the
covenant required by Section 13 of the New York Lien Law, in the form attached
hereto as Exhibit G, conveying the Land and Improvements, subject only to the
Permitted Exceptions and expressly reserving in favor of Seller, its successors
and assigns, the easement rights contained therein. Seller shall omit from the
Deed the recital of any or all of the "subject to" clauses herein contained
and/or any other title exceptions, defects or objections, other than that
certain Distinctive Sidewalk Improvement and Maintenance Agreement dated
06/03/1991, which have been waived by Purchaser in accordance with the terms of
this Agreement or consented to in writing by Purchaser, but the same shall
nevertheless survive delivery of the Deed. The terms of the immediately
preceding sentence shall survive the Closing;
(b) deliver to Purchaser a duly executed bill of sale (the "BILL OF
SALE") conveying the Personal Property without warranty of title or use and
without warranty, express or implied, as to merchantability and fitness for any
purpose and in the form attached hereto as Exhibit H;
(c) assign to Purchaser, and Purchaser shall assume the
landlord/lessor interest in and to the Leases, Rents and Security Deposits, and
any and all obligations to pay leasing commissions and finder's fees with
respect to the Leases and amendments, renewals and expansions thereof, to the
extent provided in Section 4.4(c)(v) hereof, by duly executed assignment and
assumption agreement (the "ASSIGNMENT OF LEASES") in the form attached hereto as
Exhibit I pursuant to which (i) Seller shall indemnify Purchaser and hold
Purchaser harmless from and against any and all claims pertaining thereto
arising prior to Closing and (ii) Purchaser shall indemnify Seller and hold
Seller harmless from and against any and all claims pertaining thereto arising
from and after the Closing (including without limitation, claims made by tenants
with respect to tenants' Security Deposits to the extent actually paid, credited
or delivered to Purchaser) as provided therein;
(d) assign to Purchaser, and Purchaser shall assume such right,
title, and interest, if any, Seller may have in the landlord/lessor interest in
and to the Grant of Term and assign to Purchaser, and Purchaser shall assume,
such right, title and interest, if any, Seller may have in the tenant/lessee
interest in and to the Prime Lease by duly executed Quitclaim Assignment of
Grant of Term and Prime Lease in the form attached hereto as Exhibit R, pursuant
to which Purchaser shall indemnify Seller and hold Seller harmless from and
against any and all claims pertaining thereto arising from and after the
Closing;
(e) to the extent assignable, assign to Purchaser, or cause to be
assigned to Purchaser, and Purchaser shall assume, Seller's and/or Seller's
property manager's interest in the Operating Agreements and the other
Intangibles by duly executed assignment and assumption
agreement (the "ASSIGNMENT OF CONTRACTS") in the form attached hereto as Exhibit
J pursuant to which (i) Seller shall indemnify Purchaser and hold Purchaser
harmless from and against any and all claims pertaining thereto arising prior to
Closing, and (ii) Purchaser shall indemnify Seller and hold Seller harmless from
and against any and all claims pertaining thereto arising from and after the
Closing;
(f) join with Purchaser to execute a notice (the "TENANT NOTICE") in
the form attached hereto as Exhibit K, which Purchaser shall send to each tenant
under each of the Leases promptly after the Closing, informing such tenant of
the sale of the Property and of the assignment to Purchaser of Seller's interest
in, and obligations under, the Leases (including, if applicable, any Security
Deposits), and directing that all Rent and other sums payable after the Closing
under each such Lease be paid as set forth in the Tenant Notice;
(g) join with Purchaser to execute a notice (the "OPERATING NOTICE")
in a form reasonably acceptable to Purchaser and Seller, which Purchaser shall
send to each party under each of those Operating Agreements which are assigned
to Purchaser, promptly after the Closing, informing such party of the sale of
the Property and of the assignment to Purchaser of Seller's interest in, and
obligations under, the Operating Agreements;
(h) In the event that any representation or warranty of Seller made
herein needs to be modified due to changes since the Effective Date, deliver to
Purchaser a certificate, dated as of the date of Closing and executed on behalf
of Seller by a duly authorized officer thereof, identifying any representation
or warranty which is not, or no longer is, true and correct and explaining the
state of facts giving rise to the change. In no event shall Seller be liable to
Purchaser for, or be deemed to be in default hereunder by reason of, any breach
of representation or warranty which results from any change that (i) occurs
between the Effective Date and the date of Closing and is expressly permitted
under the terms of this Agreement, (ii) occurs between the Effective Date and
the date of the Closing and is beyond the reasonable control of Seller to
prevent; or (iii) is discovered by Purchaser during the course of any
inspections of the Property prior to the Effective Date hereof, provided,
however, that the occurrence of a change which is not permitted hereunder or is
beyond the reasonable control of Seller to prevent shall, if materially adverse
to Purchaser, constitute the non-fulfillment of the condition set forth in
Section 4.6(b) hereof; if, despite changes or other matters described in such
certificate, the Closing occurs, Seller's representations and warranties set
forth in this Agreement shall be deemed to have been modified by all statements
made in such certificate;
(i) deliver to Purchaser such evidence as the Title Company may
reasonably require as to the authority of the person or persons executing
documents on behalf of Seller;
(j) deliver to Purchaser a certificate in the form attached hereto
as Exhibit L duly executed by Seller stating that Seller is not a "foreign
person" as defined in Section 1445 of the Internal Revenue Code of 1986 as
amended;
(k) deliver to Purchaser originals (to the extent originals are in
Seller's or Seller's property manager's possession, or photocopies if originals
are not in Seller's or Seller's property manager's possession) of the Leases
(and the Security Deposits), Ground Lease and the
Operating Agreements, together with such leasing and property files, books and
records, licenses, permits, warranties and guaranties and keys, as are in
Seller's possession, in connection with the continued operation, leasing and
maintenance of the Property, but excluding any Confidential Documents;
(l) deliver such affidavits as may be customarily and reasonably
required by the Title Company, in a form reasonably acceptable to Seller;
(m) deliver to Purchaser possession and occupancy of the Property,
subject to the Permitted Exceptions;
(n) execute a closing statement acceptable to Seller;
(o) execute and deliver a direction letter to the Escrow Agent
authorizing release of the Deposit to Seller;
(p) execute and deliver a Form TP-584 Combined Real Estate Transfer
Tax Return and Credit Line Mortgage Certificate, and a New York City Real
Property Transfer Tax Return, and such other returns and affidavits and
instruments required under any other tax laws applicable to the transactions
contemplated herein, together with payment of the amount of the transfer taxes
shown as due thereon; and
(o) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
SECTION 4.3 Purchaser's Obligations at Closing. At Closing, Purchaser
shall:
(a) pay to Seller the full amount of the Purchase Price (which
amount shall include the Deposit), as increased or decreased by prorations and
adjustments as herein provided, in immediately available wire transferred funds
pursuant to Section 1.5 hereof;
(b) join Seller in execution of the Assignment of Leases, Assignment
of Contracts, Assignment of Grant of Term and Prime Lease, the Deed and Tenant
Notices;
(c) In the event that any representation or warranty of Purchaser
set forth herein needs to be modified due to changes since the Effective Date,
deliver to Seller a certificate, dated as of the date of Closing and executed on
behalf of Purchaser by a duly authorized representative thereof, identifying any
such representation or warranty which is not, or no longer is, true and correct
and explaining the state of facts giving rise to the change. In no event shall
Purchaser be liable to Seller for, or be deemed to be in default hereunder by
reason of, any breach of representation or warranty set forth in Sections 5.5(a)
or (b) hereof which results from any change that (i) occurs between the
Effective Date and the date of Closing and is expressly permitted under the
terms of this Agreement, or (ii) occurs between the Effective Date and the date
of the Closing and is beyond the reasonable control of Purchaser to prevent;
provided, however, that the occurrence of a change which is not permitted
hereunder or is beyond the reasonable control of Purchaser to prevent shall, if
materially adverse to Seller, constitute the
non-fulfillment of the condition set forth in Section 4.7(c) hereof; if, despite
changes or other matters described in such certificate, the Closing occurs,
Purchaser's representations and warranties set forth in this Agreement shall be
deemed to have been modified by all statements made in such certificate;
(d) deliver to Seller such evidence as the Title Company may
reasonably require as to the authority of the person or persons executing
documents on behalf of Purchaser;
(e) deliver such affidavits as may be customarily and reasonably
required by the Title Company, in a form reasonably acceptable to Purchaser;
(f) execute a closing statement reasonably acceptable to Purchaser;
(g) execute and deliver to Seller and as required pursuant to
Section 3.5 hereof, the Agreement Regarding Union Employees in the form attached
hereto as Exhibit V;
(h) execute and deliver a direction letter to the Escrow Agent
authorizing release of the Deposit to Seller;
(i) execute and deliver a Form TP-584 Combined Real Estate Transfer
Tax Return and Credit Line Mortgage Certificate, and a New York City Real
Property Transfer Tax Return, and such other returns and affidavits and
instruments required under any other tax laws applicable to the transactions
contemplated herein, together with payment of the amount of the transfer taxes
shown as due thereon; and
(j) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
SECTION 4.4 Credits and Prorations.
(a) All income and expenses of the Property shall be apportioned as
of 12:01 a.m., on the day of Closing, as if Purchaser were vested with title to
the Property during the entire day upon which Closing occurs. Subject to the
provisions of this Section 4.4, such prorated items shall include without
limitation the following: (i) all Rents; (ii) taxes and assessments (including
personal property taxes on the Personal Property) levied against the Property;
(iii) taxes and assessments levied against the Property resulting from its
inclusion in the Grand Central Partnership Business Improvement District (iv)
parking charges, if any; (v) utility charges for which Seller is liable, if any,
such charges to be apportioned at Closing on the basis of the most recent meter
reading occurring prior to Closing (dated not more than fifteen (15) days prior
to Closing) or, if unmetered, on the basis of a current bill for each such
utility; (vi) all amounts payable under brokerage agreements pursuant to the
terms of this Agreement; (vii) all amounts payable, from and after the Closing
Date, under the Operating Agreements, pursuant to the terms of this Agreement;
and (viii) any other capital expenditures as set forth in Exhibit W attached
hereto and operating expenses or other items pertaining to the Property which
are customarily prorated between a purchaser and a seller in the county in which
the Property is located.
The parties hereto acknowledge that there shall be no adjustment for any
rentals or other amounts due under the Grant of Term and/or the Prime Lease.
(b) The parties hereto acknowledge that the capital improvement
projects and/or the agreements listed on Exhibit W hereto shall not be completed
as of the date of the Closing and that capital expenditures being incurred or to
be incurred pursuant thereto shall be apportioned between the Seller and
Purchaser as set forth on Exhibit W. In no event shall the amount apportioned to
Purchaser in respect of such Capital Improvement Projects and/or the agreements
listed on Exhibit W exceed Three Million and 00/100 Dollars.
(c) Notwithstanding anything contained in Section 4.4(a) hereof:
(i) At Closing, (A) Seller shall, at Seller's option, either deliver
to Purchaser any Security Deposits actually held by Seller pursuant to the
Leases or credit to the account of Purchaser the amount of such Security
Deposits (to the extent such Security Deposits have not been applied against
delinquent Rents or otherwise as provided in the Leases), and (B) Seller shall
be entitled to receive and retain all refundable cash or other deposits posted
with utility companies serving the Property;
(ii) Any taxes paid at or prior to Closing shall be prorated based
upon the amounts actually paid. If taxes and assessments due and payable during
the year of Closing have not been paid before Closing, Seller shall be charged
at Closing an amount equal to that portion of such taxes and assessments which
relates to the period before Closing and any late charges or fees imposed
thereon. Any such apportionment made with respect to a tax year for which the
tax rate or assessed valuation, or both, have not yet been fixed shall be based
upon the tax rate and/or assessed valuation last fixed. To the extent that the
actual taxes and assessments for the current year differ from the amount
apportioned at Closing, the parties shall make all necessary adjustments by
appropriate payments between themselves within thirty (30) days after such
amounts are determined following Closing, subject to the provisions of Section
4.4(d) hereof;
(iii) Charges referred to in Section 4.4(a) hereof which are payable
by any tenant to a third party shall not be apportioned hereunder, and Purchaser
shall accept title subject to any of such charges unpaid and Purchaser shall
look solely to the tenant responsible therefor for the payment of the same. If
Seller shall have paid any of such charges on behalf of any tenant, and shall
not have been reimbursed therefor by the time of Closing, Purchaser shall credit
to Seller an amount equal to all such charges so paid by Seller;
(iv) As to utility charges referred to in Section 4.4(a)(iii)
hereof, Seller may on notice to Purchaser elect to pay one or more or all of
said items accrued to the date hereinabove fixed for apportionment directly to
the person or entity entitled thereto, and to the extent Seller so elects, such
item shall not be apportioned hereunder, and Seller's obligation to pay such
item directly in such case shall survive the Closing or any termination of this
Agreement;
(v) Seller shall be responsible for the Tenant Inducement Costs (as
hereinafter defined) and leasing commissions listed on Exhibit M-1 attached
hereto. Purchaser shall be responsible for the payment of (A) all Tenant
Inducement Costs and leasing commissions
(including, without limitation, any override commissions payable pursuant to the
Exclusive Brokerage Agreement between Seller and CB Richard Ellis Inc.) which
become due and payable (whether before or after Closing) as a result of any new
Leases, or any renewals, amendments or expansions of existing Leases (whether or
not entered into pursuant to an option), or the exercise of any options
contained in any Leases, arising or entered into during the Lease Approval
Period (as hereinafter defined) and, if required, approved or deemed approved in
accordance with Section 5.5 hereof; and (B) all Tenant Inducement Costs and
leasing commissions with respect to new Leases, or renewals, amendments or
expansions of existing Leases, arising, signed or entered into from and after
the date of Closing, including but not limited to leasing commissions that
become payable after the termination of a brokerage agreement referred to in
Section 5.1(d) hereof in accordance with the terms of such an agreement; and (C)
all Tenant Inducement Costs and leasing commissions listed on Exhibit M attached
hereto in the amount specified thereon. If, as of the date of Closing, Seller
shall have paid any Tenant Inducement Costs or leasing commissions for which
Purchaser is responsible pursuant to the foregoing provisions, Purchaser shall
reimburse Seller therefor at Closing. For purposes hereof, the term "TENANT
INDUCEMENT COSTS" shall mean any out-of-pocket payments required under a Lease
to be paid by the landlord thereunder to or for the benefit of the tenant
thereunder which is in the nature of a tenant inducement, including
specifically, without limitation, tenant improvement costs, lease buyout costs,
and moving, design, refurbishment and club membership allowances. The term
"Tenant Inducement Costs" shall not include loss of income resulting from any
free rental period, it being agreed that Seller shall bear the loss resulting
from any free rental period until the date of Closing and that Purchaser shall
bear such loss from and after the date of Closing. For purposes hereof, the term
"Lease Approval Period" shall mean the period from the Effective Date until the
date of Closing;
(vi) Unpaid and delinquent Rent collected by Seller and Purchaser
after the date of Closing shall be delivered as follows: (a) if Seller collects
any unpaid or delinquent Rent for the Property, Seller shall, within fifteen
(15) days after the receipt thereof, deliver to Purchaser any such Rent which
Purchaser is entitled to hereunder relating to the date of Closing and any
period thereafter, and (b) if Purchaser collects any unpaid or delinquent Rent
from the Property, Purchaser shall, within fifteen (15) days after the receipt
thereof, deliver to Seller any such Rent which Seller is entitled to hereunder
relating to the period prior to the date of Closing. Seller and Purchaser agree
that (i) all Rent received by Seller or Purchaser within the first ninety (90)
day period after the date of Closing shall be applied first to delinquent Rent,
if any, in the order of their maturity, and then to current Rent, and (ii) all
Rent received by Seller or Purchaser after the first ninety (90) day period
after the date of Closing shall be applied first to current Rent and then to
delinquent Rent, if any in the inverse order of maturity. Purchaser will make a
good faith effort after Closing to collect all Rents in the usual course of
Purchaser's operation of the Property, but Purchaser will not be obligated to
institute any lawsuit or other collection procedures to collect delinquent
Rents. Seller shall have the right, after Closing, to proceed against tenants
for Fixed Rents allocable to the period of Seller's ownership of the Property
solely in a non-possessory plenary action seeking only money damages. In the
event that there shall be any Rents or other charges under any Leases which,
although relating to a period prior to Closing, do not become due and payable
until after Closing or are paid prior to Closing but are subject to adjustment
after Closing (such as year end common area expense reimbursements and the
like), then any Rents or charges of such type received by Purchaser or its
agents or Seller or its agents subsequent to Closing shall, to the extent
applicable to a period extending through the Closing, be prorated between Seller
and Purchaser as of Closing and Seller's
portion thereof shall be remitted promptly to Seller by Purchaser.
(c) Seller may prosecute appeals (if any) of the real property tax
assessment for the period prior to the Closing, and may take related action
which Seller deems appropriate in connection therewith. Purchaser shall
cooperate with Seller and perform such ministerial and non-ministerial acts, and
execute any and all documents reasonably requested by Seller, in connection with
such appeal and collection of a refund of real property taxes paid. Seller shall
be responsible for reasonable third party expenses incurred by Purchaser in
connection with the foregoing. Seller owns and holds all right, title and
interest in and to such appeal and refund, to the extent attributable to the
period prior to the Closing, and all amounts payable in connection therewith
shall be paid directly to Seller by the applicable authorities. If such refund
or any part thereof is received by Purchaser, Purchaser shall promptly pay such
amount to Seller. Any refund received by Seller shall be distributed as follows:
first, to reimburse Seller for all costs incurred in connection with the appeal;
second, with respect to refunds payable to tenants of the Real Property pursuant
to the Leases, to such tenants in accordance with the terms of such Leases; and
third, to Seller to the extent such appeal covers the period prior to the
Closing, and to Purchaser to the extent such appeal covers the period as of the
Closing and thereafter. If and to the extent any such appeal covers the period
after the Closing, Purchaser shall have the right to participate in such appeal
and Seller shall not settle or compromise any such appeal without Purchaser's
consent, such consent not to be unreasonably withheld, delayed or conditioned.
(d) Except as otherwise provided herein, and expressly excepting such
revenues and expense amounts which pertain to the calendar year 2005, which may
be reconciled by June 30, 2006, any revenue or expense amount which cannot be
ascertained with certainty as of Closing, shall be prorated on the basis of the
parties' reasonable estimates of such amount, and shall be the subject of a
final proration one hundred and eighty (180) days after Closing, or as soon
thereafter as the precise amounts can be ascertained. Any reconciliation of
revenue or expense amounts relating to Leases which needs to be made in
connection with this Section 4.4 shall be prepared by Purchaser and submitted to
Seller for Seller's review and approval. Purchaser shall promptly notify Seller
when it becomes aware that any such estimated amount has been ascertained. Once
all revenue and expense amounts have been ascertained, Purchaser shall prepare,
and certify as correct, a final proration statement which shall be in a form
consistent with the closing statement delivered at Closing and which shall be
subject to Seller's approval. Upon Seller's acceptance and approval of any final
proration statement submitted by Purchaser, such statement shall be conclusively
deemed to be accurate and final, and any payment due to any party as a result of
such final proration shall be made within thirty (30) days of such approval by
Seller.
(e) To the extent that any Security Deposit is comprised of a letter of
credit (an "L/C"), then, prior to the Closing, Seller shall use commercially
reasonable efforts to cause such L/C to name Purchaser as the beneficiary
thereunder prior to the Closing (either pursuant to a transfer of such L/C which
satisfies the issuing bank's transfer requirement, or by obtaining an amendment
to the L/C naming purchaser as the beneficiary thereunder and, in the case of
the foregoing, in form and substance reasonably satisfactory to Purchaser)
(each, an "L/C TRANSFER"). At the Closing, Seller shall deliver to Purchaser the
originals of all L/C's (and any amendments or modification thereof) whether or
not an L/C Transfer has been consummated with respect to such L/C. If, as of the
Closing, an L/C Transfer shall not have been consummated, then Seller shall,
within five (5)
business days following Purchaser's request, execute and deliver to Purchaser
any sight drafts, certifications, affidavits, or other documentation
contemplated by the L/C or otherwise required by the issuing bank so as to
enable Purchaser to draw upon and receive the proceeds of such L/C, provided
that Purchaser has agreed (pursuant to documentation executed by Purchaser in a
form reasonably acceptable to Seller) to indemnify and hold harmless Seller from
any and all loss, cost, damage, liability or expense (including, without
limitation, reasonable attorneys' fees, court costs and disbursements,) incurred
by Seller as a result of any such actions described in the preceding sentence
which are taken by Seller at Purchaser's request.
(f) Subject to the final sentence of Section 4.4(d) hereof, the provisions
of this Section 4.4 shall survive Closing.
SECTION 4.5 Transaction Taxes and Closing Costs.
(a) Seller and Purchaser shall execute such returns, questionnaires and
other documents as shall be required with regard to all applicable real property
transaction taxes imposed by applicable federal, state or local law or
ordinance;
(b) Seller shall pay the fees of any counsel representing Seller in
connection with this transaction. Seller shall also pay the following costs and
expenses:
(i) one-half of the escrow fee, if any which may be charged by the
Escrow Agent or Title Company;
(ii) any transfer tax, sales tax, documentary stamp tax or similar
tax which becomes payable by reason of the transfer of the Property; and
(iii) the fees for Seller's Broker.
(c) Purchaser shall pay the fees of any counsel representing Purchaser in
connection with this transaction. Purchaser shall also pay the following costs
and expenses:
(i) one- half of the escrow fee, if any, which may be charged by the
Escrow Agent or Title Company;
(ii) the fee for the title examination and the Title Commitment and
the premium for the Owner's Policy of Title Insurance to be issued to Purchaser
by the Title Company at Closing, and all endorsements thereto;
(iii) the fees for recording the Deed; and
(iv) the fees for Purchaser's Broker, if any.
(d) Except as set forth on Exhibit B-1 attached hereto, the Personal
Property is included in this sale without charge, except that Purchaser shall
pay to Seller the amount of any and all sales
or similar taxes payable in connection with the transfer of the Personal
Property and Purchaser shall execute and deliver any tax returns required of it
in connection therewith;
(e) All costs and expenses incident to this transaction and the closing
thereof, and not specifically described above, shall be paid by the party
incurring same; and
(f) The provisions of this Section 4.5 shall survive the Closing.
SECTION 4.6 Conditions Precedent to Obligations of Purchaser. The
obligation of Purchaser to consummate the transaction hereunder shall be subject
to the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Purchaser in its sole
discretion:
(a) Seller shall have delivered to Purchaser all of the items required to
be delivered to Purchaser pursuant to the terms of this Agreement, including but
not limited to, those provided for in Section 4.2 hereof;
(b) All of the representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects as of the date of
Closing (with appropriate modifications permitted under this Agreement); and
(c) Seller shall have performed and observed, in all material respects,
all covenants and agreements of this Agreement to be performed and observed by
Seller as of the date of Closing.
SECTION 4.7 Conditions Precedent to Obligations of Seller. The obligation
of Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as adjusted as provided
herein, pursuant to and payable in the manner provided for in this Agreement;
(b) Purchaser shall have delivered to Seller all of the items required to
be delivered to Seller pursuant to the terms of this Agreement, including but
not limited to, those provided for in Section 4.3 hereof;
(c) All of the representations and warranties of Purchaser contained in
this Agreement shall be true and correct in all material respects as of the date
of Closing (with appropriate modifications permitted under this Agreement); and
(d) Purchaser shall have performed and observed, in all material respects,
all covenants and agreements of this Agreement to be performed and observed by
Purchaser as of the date of Closing.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 5.1 Representations and Warranties of Seller. Seller hereby makes
the following representations and warranties to Purchaser as of the Effective
Date, which representations and warranties shall be deemed to have been made
again as of the Closing, subject to Section 4.2(g) hereof:
(a) Organization and Authority. Seller has been duly organized and is
validly existing under the laws of the State of Delaware. Seller has the full
right and authority to enter into this Agreement and to transfer all of the
Property and to consummate or cause to be consummated the transaction
contemplated by this Agreement. The person signing this Agreement on behalf of
Seller is authorized to do so.
(b) Pending Actions. To Seller's knowledge, Seller has not received
written notice of any action, suit, arbitration, unsatisfied order or judgment,
government investigation or proceeding pending against Seller which, if
adversely determined, could individually or in the aggregate materially
interfere with the consummation of the transaction contemplated by this
Agreement.
(c) Operating Agreements. To Seller's knowledge, the Operating Agreements
listed on Exhibit C comprise a true, complete and accurate list of all of the
agreements concerning the operation and maintenance of the Property entered into
by Seller and/or Seller's property manager and affecting the Property, true and
complete copies of which have been made available to the Purchaser; expressly
excepting however, those operating agreements that are not assignable, and any
agreement with Seller's property manager or exclusive leasing broker which shall
be terminated by Seller. It is further acknowledged that the agreement between
Seller and/or Seller's property manager and Landmark Signs listed on Exhibit C
shall not be assigned to Purchaser. Except as expressly hereinbefore provided,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any other information or data contained on Exhibit C and shall
have no liability to Purchaser for any inaccuracy or omission in or relating to
same.
(d) Lease Brokerage. (i) To Seller's knowledge, there are no written
agreements with brokers providing for the payment from and after the Closing by
Seller or Seller's successor-in-interest of leasing commissions or fees for
procuring tenants with respect to the Property, except as disclosed in Exhibit N
hereto, true and complete copies of which have been made available to Purchaser;
(ii) To Seller's knowledge, Seller has made available to Purchaser
true and complete copies of those tenant brokerage agreements which are in the
Seller's possession as of the date hereof, as more particularly described on
Exhibit N-1 hereto.
(e) Condemnation. To Seller's knowledge, Seller has received no written
notice of any condemnation proceedings relating to the Property.
(f) Litigation. To Seller's knowledge, except as set forth in the Title
Commitment and on Exhibit O attached hereto, and except tenant eviction
proceedings, tenant bankruptcies, proceedings for the collection of delinquent
rentals from tenants and proceedings related to claims
for personal injury or damage to property due to events occurring at the
Property, Seller has not received written notice of any litigation which has
been filed against Seller that arises out of the ownership of the Property and
would materially affect the Property or use thereof, or Seller's ability to
perform hereunder;
(g) Violations. To Seller's knowledge, except as set forth in the Title
Commitment and on Exhibit P attached hereto, Seller has not received written
notice of any uncured violation of any federal, state or local law relating to
the use or operation of the Property which would materially adversely affect the
Property or use thereof; and
(h) Leases. To Seller's knowledge, the Lease Index attached hereto as
Exhibit Q constitutes a true and complete list of all the leases currently
affecting the Property, true and complete copies of which have been made
available to Purchaser. Further, Seller makes no representation or warranty
regarding the existence, terms or duration of any subleases which may affect the
Property.
SECTION 5.2 Knowledge Defined. References to the "knowledge" of Seller
shall refer only to the current actual knowledge of the Designated Employee (as
hereinafter defined) of Seller, and shall not be construed, by imputation or
otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to
any property manager, or to any other officer, agent, manager, representative or
employee of Seller or any affiliate thereof or to impose upon such Designated
Employee any duty to investigate the matter to which such actual knowledge, or
the absence thereof, pertains. As used herein, the term "DESIGNATED EMPLOYEE"
shall refer to Donald E.Svoboda, Jr., Associate Director and Gregory R. Reed,
Director.
SECTION 5.3 Modification of Seller's Representations and Warranties.
Purchaser acknowledges that prior to the Effective Date, it has inspected (i)
all of the documents delivered or furnished to Purchaser for inspection, (ii)
such offer documents and information as it has deemed appropriate and (iii) the
Property; and Purchaser agrees that, in the event that during such inspection
Purchaser discovered any material matter which would form the basis for a claim
by Purchaser that Seller has breached any representation or warranty of Seller
made in this Agreement or has any actual knowledge of any such matter, Seller's
representations and warranties hereunder shall be deemed amended so as to be
true and accurate and Purchaser shall have no claim for any breach based
thereon.
SECTION 5.4 Survival of Seller's Representations and Warranties. The
representations and warranties of Seller set forth in Section 5.1 hereof as
updated as of the Closing in accordance with the terms of this Agreement, shall
survive Closing for a period of one hundred eighty (180) days. No claim for a
breach of any representation or warranty of Seller shall be actionable or
payable if the breach in question results from or is based on a condition, state
of facts or other matter which was known to Purchaser prior to Closing. Seller
shall have no liability to Purchaser for a breach of any representation or
warranty (a) unless the valid claims for all such breaches collectively
aggregate more than Five Hundred Thousand Dollars ($ 500,000), in which event
the full amount of such valid claims shall be actionable, up to the Cap (as
defined in this Section), and (b) unless written notice containing a description
of the specific nature of such breach shall have been given by Purchaser to
Seller prior to the expiration of said one hundred eighty (180) day
period and an action shall have been commenced by Purchaser against Seller
within two hundred forty (240) days of Closing. Purchaser agrees to first seek
recovery under any insurance policies, service contracts and Leases prior to
seeking recovery from Seller, and Seller shall not be liable to Purchaser if
Purchaser's claim is satisfied from such insurance policies, service contracts
or Leases. As used herein, the term "CAP" shall mean the total aggregate amount
of Ten Million Dollars ($10,000,000.00).
SECTION 5.5 Covenants of Seller. Seller hereby covenants with Purchaser as
follows:
(a) From the Effective Date hereof until the Closing or earlier
termination of this Agreement, Seller shall use reasonable efforts to operate
and maintain the Property in a manner generally consistent with the manner in
which Seller has operated and maintained the Property prior to the date hereof;
(b) Except as provided herein below, a copy of any amendment, renewal or
expansion of an existing Lease or of any new Lease which Seller wishes to
execute between the Effective Date and the date of Closing will be submitted to
Purchaser prior to execution by Seller. Purchaser agrees to notify Seller in
writing within five (5) business days after its receipt thereof of either its
approval or disapproval thereof, including all Tenant Inducement Costs, leasing
commissions and attorneys' fees and expenses to be incurred in connection
therewith. In the event Purchaser informs Seller within such five (5) business
day period that Purchaser does not approve the amendment, renewal or expansion
of the existing Lease or the new Lease, which approval shall not be unreasonably
withheld, Seller shall not enter into such amendment, renewal or expansion of
the existing Lease or the new Lease; provided, however, Purchaser shall have no
right to disapprove and shall be deemed to have approved any renewal or
expansion which occurs or is made pursuant to the terms of an existing Lease.
Notwithstanding the foregoing, Purchaser hereby approves (A) the pending
Surrender Agreement with CSC for the 31st floor, (B) the UBS Paine Webber Lease
for part of the 32nd floor, (C) the Fisher Francis Lease for the 45th and 46th
floors, (D) the extension of the Tie Rack tenancy, (D) the extension of the
Estee Lauder tenancy, extension of the Lease in favor of the Company Store, (F)
the new Lease in favor of The New York Blood Center Inc., (G) the lease
Amendment in favor of Winston and Strawn for additional space on the 40th, 43rd,
44th and 45th floors of the Building, (H) the exercise of Riad of the renewal
option contained in its Lease, (I) the Leases between Seller and Metropolitan
Life Insurance Company for premises located on portions of the 12th floor, 32nd
floor, 40th floor, 57th floor and the 56th floor of the Building, and (J) the
First Amendment of Lease between Seller and The Dreyfus Corporation, in each
case on substantially similar terms and conditions as those set forth on Exhibit
X attached hereto and made a part hereof. Any material deviations from the terms
and conditions set forth on Exhibit X attached hereto, any terms and conditions
that are inconsistent with the terms and conditions set forth on Exhibit X
attached hereto and any material terms and conditions that are not set forth on
Exhibit X attached hereto, shall be subject to Purchaser's prior written
approval, which approval shall not be unreasonably withheld. If this Agreement
is terminated pursuant to the foregoing provisions of this paragraph, then
neither party shall have any further rights or obligations hereunder (except for
any indemnity obligations of either party pursuant to the other provisions of
this Agreement), the Deposit shall be returned to Purchaser and each party shall
bear its own costs incurred hereunder. In the event Purchaser fails to notify
Seller in writing of its approval or disapproval within the five (5) business
day period set forth above, Purchaser
shall be deemed to have approved such new Lease, amendment, renewal or
expansion, including all Tenant Inducement Costs, leasing commissions and
attorneys' fees and expenses to be incurred in connection therewith. At Closing,
Purchaser shall reimburse Seller for any Tenant Inducement Costs, leasing
commissions and attorneys' fees and other expenses, incurred by Seller pursuant
to an amendment, a renewal, an expansion or a new Lease approved (or deemed
approved) by Purchaser.
It is agreed by Seller and Purchaser that if Dreyfus does not pay rent
pursuant to its Lease for the new portions of the 8th and 54th floor premises on
the basis that the Commencement Date has not occurred as of August 27, 2004,
Seller shall reimburse Purchaser for the free rent period under its Lease after
the Closing provided that in no event shall such reimbursement by Seller be in
excess of eight (8) months of the rent abatement period as provided in the
Lease. Purchaser shall agree to reasonably cooperate with Seller in resolving
this dispute with Dreyfus.
SECTION 5.6 Representations and Warranties of Purchaser. Purchaser hereby
makes the following representations and warranties to Seller as of the Effective
Date, which representations and warranties shall be deemed to have been made
again as of the Closing, subject to Section 4.3(d) hereof:
(a) Organization and Authority. (i) This Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Purchaser and, upon the assumption that this Agreement
constitutes a legal, valid and binding obligation of Seller, this Agreement
constitutes a legal, valid and binding obligation of Purchaser enforceable
against Purchaser in accordance with its terms, subject to applicable laws
relating to bankruptcy, insolvency, moratorium, as well as other laws affecting
creditors' rights and general equitable principles. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
do not and will not (i) violate or conflict with the [Certificate of
Incorporation] or [By-Laws of Purchaser;] (ii) breach the provisions of, or
constitute a default under, any contract, agreement, instrument or obligation to
which Purchaser is a party or by which Purchaser is bound; and (iii) require the
consent or approval of any other third party or governmental agency.
(ii) Purchaser's Additional Representations. Purchaser hereby
represents that, and agrees to furnish Seller at or prior to the Closing
evidence confirming that (i) it is a, duly organized and validly existing under
the law of the State of Delaware and Purchaser is owned by Tishman Speyer Real
Estate Venture VI, L.P., a Delaware limited partnership which is controlled by
Tishman Speyer Properties, L.P.; and (ii) the parties executing this Agreement
and the Closing Documents on behalf of Purchaser or other party to the
transaction have the legal capacity and authority to execute the documents as
executed or to be executed.
(b) Pending Actions. To Purchaser's knowledge, there is no action, suit,
arbitration, unsatisfied order or judgment, government investigation or
proceeding pending against Purchaser which, if adversely determined, could
individually or in the aggregate materially interfere with the consummation of
the transaction contemplated by this Agreement.
(c) ERISA. (i) As of the Closing, (1) Purchaser will not be an employee
benefit plan as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), which is subject to Title I of
ERISA, nor a plan as defined in Section 4975(e)(1) of the Internal Revenue Code
of 1986, as amended (each of the foregoing hereinafter referred to collectively
as "PLAN"), and (2) the assets of the Purchaser will not constitute "plan
assets" of one or more such Plans within the meaning of Department of Labor
("DOL") Regulation Section 2510.3-101.
(ii) As of the Closing, if Purchaser is a "governmental plan" as
defined in Section 3(32) of ERISA, the closing of the sale of the Property will
not constitute or result in a violation of state or local statutes regulating
investments of and fiduciary obligations with respect to governmental plans.
(iii) As of the Closing, Purchaser will be acting on its own behalf
and not on account of or for the benefit of any Plan.
(iv) Purchaser has no present intent to transfer the Property to any
entity, person or Plan which will cause a violation of ERISA.
(v) Purchaser shall not assign its interest under this Agreement to
any entity, person, or Plan which will cause a violation of ERISA.
SECTION 5.7 Survival of Purchaser's Representations and Warranties. The
representations and warranties of Purchaser set forth in Section 5.6 hereof as
updated as of the Closing in accordance with the terms of this Agreement, shall
survive Closing for a period of one hundred eighty (180) days. Purchaser shall
have no liability to Seller for a breach of any representation or warranty
unless written notice containing a description of the specific nature of such
breach shall have been given by Seller to Purchaser prior to the expiration of
said one hundred eighty (180) day period and an action shall have been commenced
by Seller against Purchaser within two hundred forty (240) days of Closing.
ARTICLE VI
DEFAULT
SECTION 6.1 Default by Purchaser. In the event the sale of the Property as
contemplated hereunder is not consummated due to Purchaser's default hereunder,
Seller shall be entitled, as its sole remedy, to terminate this Agreement and
receive the Deposit as liquidated damages for the breach of this Agreement, it
being agreed between the parties hereto that the actual damages to Seller in the
event of such breach are impractical to ascertain and the amount of the Deposit
is a reasonable estimate thereof.
SECTION 6.2 Default by Seller. In the event the sale of the Property as
contemplated hereunder is not consummated due to Seller's default hereunder,
Purchaser shall be entitled, as its sole remedy, either (a) to receive the
return of the Deposit, which return shall operate to terminate
this Agreement and release Seller from any and all liability hereunder, or (b)
to enforce specific performance of Seller's obligation to convey the Property to
Purchaser in accordance with the terms of this Agreement, it being understood
and agreed that the remedy of specific performance shall not be available to
enforce any other obligation of Seller hereunder. Purchaser expressly waives its
rights to seek damages in the event of Seller's default hereunder. If the sale
of the Property is not consummated due to Seller's default hereunder, Purchaser
shall be deemed to have elected to terminate this Agreement and receive back the
Deposit if Purchaser fails to file suit for specific performance against Seller
in a court having jurisdiction in the county and state in which the Property is
located, on or before thirty (30) days following the date upon which Closing was
to have occurred.
SECTION 6.3 Recoverable Damages. Notwithstanding Sections 6.1 and 6.2
hereof, in no event shall the provisions of Sections 6.1 and 6.2 limit the
damages recoverable by either party against the other party due to the other
party's obligation to indemnify such party in accordance with this Agreement.
This Section shall survive the Closing or the earlier termination of this
Agreement.
ARTICLE VII
RISK OF LOSS
SECTION 7.1 Minor Damage or Condemnation. In the event of loss or damage
to, or condemnation of, the Property or any portion thereof which is not "Major"
(as hereinafter defined), this Agreement shall remain in full force and effect
provided that Seller shall, at Seller's option, either (a) perform any necessary
repairs, or (b) assign to Purchaser, (but expressly excluding from such
assignment Seller's right and the right of any affiliate of Seller to casualty
or condemnation proceeds in respect of the Existing Signs pursuant to the Deed)
without representation, warranty or recourse to Seller, all of Seller's right,
title and interest in and to any claims and proceeds Seller may have with
respect to any casualty insurance policies or condemnation awards relating to
the premises in question, after deduction of Seller's expenses of collection and
amounts expended by Seller in Seller's reasonable discretion to prevent further
damage to the Property or to alleviate unsafe conditions at the Property caused
by casualty or condemnation. In the event that Seller elects to perform repairs
upon the Property, Seller shall use reasonable efforts to complete such repairs
promptly and the date of Closing shall be extended a reasonable time in order to
allow for the completion of such repairs. If, subject to the provisions of the
Deed, Seller elects to assign a casualty claim to Purchaser, the Purchase Price
shall be reduced by an amount equal to the lesser of the deductible amount under
Seller's insurance policy or the cost of such repairs as determined in
accordance with Section 7.3 hereof. Upon Closing, full risk of loss with respect
to the Property shall pass to Purchaser.
SECTION 7.2 Major Damage. In the event of a "Major" loss or damage to, or
condemnation of, the Property or any portion thereof, either Seller or Purchaser
may terminate this Agreement by written notice to the other party, in which
event the Deposit shall be returned to Purchaser. If neither Seller nor
Purchaser elects to terminate this Agreement within ten (10) days after Seller
sends Purchaser written notice of the occurrence of such Major loss, damage or
condemnation (which notice shall state the cost of repair or restoration thereof
as opined by an
architect in accordance with Section 7.3 hereof), then Seller and Purchaser
shall be deemed to have elected to proceed with Closing, in which event Seller
shall, at Seller's option, either (a) perform any necessary repairs, or (b)
assign to Purchaser, without representation, warranty or recourse to Seller, all
of Seller's right, title and interest in and to any claims and proceeds Seller
may have with respect to any casualty insurance policies or condemnation awards
relating to the premises in question, after deduction of Seller's expenses of
collection and amounts expended by Seller in Seller's reasonable discretion to
prevent further damage to the Property or to alleviate unsafe conditions at the
Property caused by casualty or condemnation. In the event that Seller elects to
perform repairs upon the Property, Seller shall use reasonable efforts to
complete such repairs promptly and the date of Closing shall be extended a
reasonable time in order to allow for the completion of such repairs. If Seller
elects to assign a casualty claim to Purchaser, the Purchase Price shall be
reduced by an amount equal to the lesser of the deductible amount under Seller's
insurance policy or the cost of such repairs as determined in accordance with
Section 7.3 hereof. Upon Closing, full risk of loss with respect to the Property
shall pass to Purchaser. The foregoing notwithstanding, if there is a casualty
or condemnation affecting any of the Existing Signs or all or any portion of the
premises demised to Seller or any affiliate of Seller under any Lease, Seller
shall have the sole option to terminate the Agreement. If this Agreement is
terminated by Seller in such instance, then neither party shall have any further
rights or obligations hereunder (except for any indemnity obligations of either
party pursuant to the other provisions of the Agreement), the Deposit shall be
returned to Purchaser and each party shall bear its own costs hereunder.
SECTION 7.3 Definition of "Major" Loss or Damage. For purposes of Sections
7.1 and 7.2, "MAJOR" loss, damage or condemnation refers to the following: (a)
loss or damage to the Property hereof such that the cost of repairing or
restoring the premises in question to substantially the same condition which
existed prior to the event of damage would be, in the opinion of an architect
selected by Seller and reasonably approved by Purchaser, equal to or greater
than Forty Million Dollars ($40,000,000.00) and (b) any loss due to a
condemnation which permanently and materially impairs the current use of the
Property. If Purchaser does not give written notice to Seller of Purchaser's
reasons for disapproving an architect within five (5) business days after
receipt of notice of the proposed architect, Purchaser shall be deemed to have
approved the architect selected by Seller.
SECTION 7.4 General Obligations Law The parties hereto waive the
provisions of Section 5-1311 of the General Obligations Law, which shall not
apply to this Agreement and agree that their respective rights in case of
damage, destruction, condemnation or taking by eminent domain shall be governed
by the provisions of this Section. . The provisions of this Section shall
survive the Closing.
ARTICLE VIII
COMMISSIONS
SECTION 8.1 Brokerage Commissions. With respect to the transaction
contemplated by this Agreement, Seller represents that its sole broker is
Cushman & Wakefield, Inc. ("SELLER'S BROKER"), and Purchaser represents that it
has not dealt with or engaged on its behalf or for its
benefit with any broker other than Seller's Broker. Seller shall be responsible
for any and all commissions and other compensation due to Seller's Broker in
connection with the transaction contemplated by this Agreement, which shall be
paid pursuant to a separate written agreement between Seller and Seller's
Broker. Each party hereto agrees that if any person or entity, other than the
Seller's Broker makes a claim for brokerage commissions or finder's fees related
to the sale of the Property by Seller to Purchaser, and such claim is made by,
through or on account of any acts or alleged acts of said party or its
representatives, said party will protect, indemnify, defend and hold the other
party free and harmless from and against any and all loss, liability, cost,
damage and expense (including reasonable attorneys' fees) in connection
therewith. The provisions of this paragraph shall survive Closing or any
termination of this Agreement.
ARTICLE IX
DISCLAIMERS AND WAIVERS
SECTION 9.1 No Reliance on Documents. Except as expressly stated herein,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered or given by Seller
or its brokers or agents to Purchaser in connection with the transaction
contemplated hereby. Purchaser acknowledges and agrees that all materials, data
and information delivered or given by Seller to Purchaser in connection with the
transaction contemplated hereby are provided to Purchaser as a convenience only
and that any reliance on or use of such materials, data or information by
Purchaser shall be at the sole risk of Purchaser, except as otherwise expressly
stated herein. Neither Seller, nor any affiliate of Seller, nor the person or
entity which prepared any report or reports delivered by Seller to Purchaser
shall have any liability to Purchaser for any inaccuracy in or omission from any
such reports.
SECTION 9.2 AS-IS SALE; DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT
ANY TIME MADE ANY WARRANTIES, REPRESENTATIONS, GUARANTIES, COVENANTS OR
STATEMENTS OF ANY TYPE, KIND, NATURE OR CHARACTER WHATSOEVER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING BUT NOT LIMITED TO, ANY
WARRANTIES, REPRESENTATIONS, GUARANTIES, COVENANTS OR STATEMENTS AS TO
HABITABILITY, MERCHANTABILITY OR FITNESS OF THE PROPERTY FOR A PARTICULAR
PURPOSE, THE INCOME, EXPENSES, OPERATION OR PROFITABILITY OF THE PROPERTY, THE
OPERATING HISTORY OF OR ANY PROJECTIONS RELATING TO THE PROPERTY, THE VALUATION
OF THE PROPERTY, ANY TAX TREATMENT, WHETHER INCOME OR OTHERWISE, RELATED TO THE
PROPERTY, OR AS TO THE PHYSICAL, STRUCTURAL, OR ENVIRONMENTAL CONDITION OF THE
PROPERTY, ITS COMPLIANCE WITH LAWS OR WITH RESPECT TO THE ZONING OF, OR ANY
APPROVALS, LICENSES OR PERMITS REQUIRED FOR THE PROPERTY, OR THE SUITABILITY OF
THE PROPERTY FOR PURCHASER'S INTENDED USE THEREOF OR THE ABILITY OR FEASIBILITY
TO CONVERT THE PROPERTY OR ANY PORTION THEREOF TO ANY OTHER OR PARTICULAR USE,
OR WITH RESPECT TO THE AVAILABILITY OF ACCESS, INGRESS OR EGRESS TO THE
PROPERTY, THE NEED FOR OR COMPLIANCE WITH GOVERNMENTAL OR THIRD PARTY APPROVALS
OR
GOVERNMENTAL REGULATIONS, OR ANY OTHER MATTER OR THING OF ANY TYPE, KIND,
NATURE OR CHARACTER WHATSOEVER RELATING TO OR AFFECTING THE PROPERTY.
PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND
CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS,
WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT
LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES,
COVENANTS, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY
OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, OFFERING
PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER,
THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR
PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR
INDIRECTLY, ORALLY OR IN WRITING, UNLESS AND TO THE EXTENT EXPRESSLY SET FORTH
IN THIS AGREEMENT. PURCHASER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS
AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD "AS-IS, WHERE IS, WITH
ALL FAULTS."
PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED PRIOR TO THE
EFFECTIVE DATE, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED
TO, THE PHYSICAL, STRUCTURAL, AND ENVIRONMENTAL CONDITIONS, THE INCOME AND
EXPENSES OF AND FROM THE PROPERTY AND THE PROFITABILITY OF THE PROPERTY AND ANY
TAX TREATMENT, WHETHER INCOME OR OTHERWISE, RELATED TO THE PROPERTY, AS
PURCHASER DEEMED NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF
THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN
WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE
PROPERTY, AND IS RELYING SOLELY AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH
RESPECT THERETO, OTHER THAN ANY, IF ANY, REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING,
PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED
TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL, ENVIRONMENTAL, FINANCIAL AND
ECONOMIC CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS,
AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED SELLER (AND SELLER'S AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF
ACTION (INCLUDING WITHOUT LIMITATION CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) OF ANY
AND EVERY TYPE, KIND, CHARACTER
OR NATURE WHATSOEVER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR
ALLEGED AGAINST SELLER (AND/OR SELLER'S AFFILIATES, OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF
THE PHYSICAL, ENVIRONMENTAL, STRUCTURAL, FINANCIAL AND ECONOMIC CONDITION OF THE
PROPERTY, ANY LATENT OR PATENT CONSTRUCTION OR OTHER DEFECTS RELATED TO THE
PROPERTY, VIOLATIONS OF ANY APPLICABLE LAWS RELATED TO THE PROPERTY, THE
HABITABILITY, MERCHANTABILITY OR FITNESS OF THE PROPERTY FOR ANY PARTICULAR
PURPOSE, THE INCOME, EXPENSES OR PROFITABILITY OF THE PROPERTY, ANY TAX
TREATMENT, WHETHER INCOME OR OTHERWISE, RELATED TO THE PROPERTY, OF THE
PROPERTY, ITS COMPLIANCE WITH LAWS OR WITH RESPECT TO THE ZONING OF, APPROVALS
REQUIRED FOR, OR THE SUITABILITY OF THE PROPERTY FOR PURCHASER'S INTENDED USE
THEREOF OR THE ABILITY OR THE FEASIBILITY TO CONVERT THE PROPERTY OR ANY PORTION
THEREOF TO ANY OTHER OR PARTICULAR USE, OR WITH RESPECT TO THE AVAILABILITY OF
ACCESS, INGRESS OR EGRESS, OPERATING HISTORY OR PROJECTIONS, VALUATION,
GOVERNMENTAL OR THIRD PARTY APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER
MATTER OR THING OF ANY TYPE, KIND, NATURE OR CHARACTER WHATSOEVER RELATING TO OR
AFFECTING THE PROPERTY, AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS,
CIRCUMSTANCES OR MATTERS OF ANY TYPE, CHARACTER OR NATURE WHATSOEVER REGARDING
THE PROPERTY. PURCHASER ACKNOWLEDGES THAT SUCH ADVERSE MATTERS MAY AFFECT
PURCHASER'S ABILITY TO SELL, LEASE, OPERATE OR FINANCE THE PROPERTY AT ANY TIME
AND FROM TIME TO TIME.
SECTION 9.3 Survival of Disclaimers The provision of the Article IX shall
survive Closing or any termination of this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Confidentiality. Purchaser and its representatives shall hold
in strictest confidence all data and information obtained with respect to Seller
or its business, whether obtained before or after the execution and delivery of
this Agreement which shall be used solely for the purposes of evaluating the
proposed acquisition of the Property by Purchaser, and shall not disclose the
same to others; provided, however, that it is understood and agreed that
Purchaser may disclose such data and information to the employees, lenders,
consultants, accountants and attorneys of Purchaser provided that such persons
agree in writing to treat such data and information confidentially. In the event
this Agreement is terminated or Purchaser fails to perform hereunder, Purchaser
shall promptly return to Seller any statements, documents, schedules, exhibits
or other written information obtained from Seller in connection with this
Agreement or the transaction contemplated herein. In the event of a breach or
threatened breach by Purchaser or its agents or representatives of this Section
10.1, Seller shall be entitled to an injunction restraining Purchaser or its
agents or representatives from disclosing, in whole or in part, such
confidential information.
Nothing herein shall be construed as prohibiting Seller from pursuing any other
available remedy at law or in equity for such breach or threatened breach. The
provisions of this Section 10.1 shall survive Closing or any termination of this
Agreement.
SECTION 10.2 Public Disclosure. Prior to and after the Closing, any press
release or other public disclosure of information with respect to the sale
contemplated herein or any matters set forth in this Agreement made or released
by or on behalf of Purchaser shall be subject to Seller's prior approval. Seller
and the affiliates of Seller shall have the right without Purchaser's consent,
to make prior to and after the Closing press releases and other public
disclosures with respect to the sale contemplated herein and matters set forth
in this Agreement. The provisions of this Section 10.2 shall survive the Closing
or any termination of this Agreement.
SECTION 10.3 Assignment. Subject to the provisions of this Section 10.3,
the terms and provisions of this Agreement are to apply to and bind the
permitted successors and assigns of the parties hereto. Purchaser may not assign
its rights under this Agreement without first obtaining Seller's written
approval, which approval may be given or withheld in Seller's sole discretion,
and any such attempted assignment without Seller's prior written approval shall
be null and void. In the event Purchaser intends to assign its rights hereunder,
(a) Purchaser shall send Seller written notice of its request at least ten (10)
business days prior to Closing, which request shall include the legal name and
structure of the proposed assignee, as well as any other information that Seller
may reasonably request, and (b) Purchaser and the proposed assignee shall
execute an assignment and assumption of this Agreement in form and substance
satisfactory to Seller, and (c) in no event shall any assignment of this
Agreement release or discharge Purchaser from any liability or obligation
hereunder. Notwithstanding the second sentence of this Section 10.3 Purchaser
may assign this Agreement in its entirety to an entity which is wholly owned,
directly or indirectly, by affiliates of New York City Employee Retirement
Systems, New York City Teachers Retirement Systems, Lehman Brothers and Tishman
Speyer Real Estate Venture VI, L.P. and controlled by Tishman Speyer Property,
L.P. or Tishman Speyer Real Estate Ventures VI, L.P. Notwithstanding the
foregoing, under no circumstances shall Purchaser have the right to assign this
Agreement (1) to any person or entity owned or controlled by an employee benefit
plan if Seller's sale of the Property to such person or entity would, in the
reasonable opinion of Seller's ERISA advisor, create or otherwise cause a
"prohibited transaction" under ERISA and (2) in any manner that is not in
compliance with laws, rules and regulations of any governmental authority having
jurisdiction thereof (including, but not limited to, the US Department of
Treasury Office of Foreign Assets Control and the US Patriot Act). Any transfer,
directly or indirectly, of any stock, partnership interest or other ownership
interest in Purchaser shall constitute an assignment of this Agreement. The
provisions of this Section 10.3 shall survive the Closing or any termination of
this Agreement.
SECTION 10.4 Notices. Any notice pursuant to this Agreement shall be given
in writing by (a) personal delivery, (b) reputable overnight delivery service
with proof of delivery, (c) United States Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designated by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
If to Seller: Metropolitan Tower Life Insurance Company
c/o Metropolitan Life Insurance Company
10 Park Avenue
Morristown, New Jersey 07962
Attn: David V. Politano
Vice President
Fax Number: (973) 355-4460
with a copy to: Metropolitan Life Insurance Company
10 Park Avenue
Morristown, New Jersey 07962
Attn: William P. Gardella, Esq.
Senior Associate General Counsel
Real Estate Investments
Fax Number: (973) 355-4920
If to Purchaser: c/o Tishman Speyer Properties, L.P.
520 Madison Avenue, 6th Floor
New York, New York 10022
Attention: Chief Legal Officer
Fax Number: (212) 588-1895
with a copy to: c/o Tishman Speyer Properties, L.P.
520 Madison Avenue, 6th Floor
New York, New York 10022
Attention: Chief Financial Officer
Fax Number: (212) 588-1895
and a copy to: Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004
Attention: Jonathan L. Mechanic, Esq.
Fax Number: (212) 859-4000
SECTION 10.5 Modifications. This Agreement cannot be changed orally, and
no executory agreement shall be effective to waive, change, modify or discharge
it in whole or in part unless such executory agreement is in writing and is
signed by the parties against whom enforcement of any waiver, change,
modification or discharge is sought.
SECTION 10.6 Entire Agreement. This Agreement, including the exhibits and
schedules hereto, contains the entire agreement between the parties hereto
pertaining to the subject matter hereof and fully supersedes all prior written
or oral agreements and understandings between the
parties pertaining to such subject matter, other than any confidentiality
agreement executed by Purchaser in connection with the Property.
SECTION 10.7 Further Assurances. Each party agrees that it will execute
and deliver such other documents and take such other action, whether prior or
subsequent to Closing, as may be reasonably requested by the other party to
consummate the transaction contemplated by this Agreement. The provisions of
this Section 10.7 shall survive Closing.
SECTION 10.8 Counterparts. This Agreement may be executed in counterparts,
all such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
SECTION 10.9 Facsimile Signatures. In order to expedite the transaction
contemplated herein, telecopied signatures may be used in place of original
signatures on this Agreement. Seller and Purchaser intend to be bound by the
signatures on the telecopied document, are aware that the other party will rely
on the telecopied signatures, and hereby waive any defenses to the enforcement
of the terms of this Agreement based on the form of signature.
SECTION 10.10 Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement shall nonetheless remain in full force and
effect; provided that the invalidity or unenforceability of such provision does
not materially adversely affect the benefits accruing to any party hereunder.
SECTION 10.11 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State in which the Property is
located. Purchaser and Seller agree that the provisions of this Section 10.11
shall survive the Closing or any termination of this Agreement.
SECTION 10.12 No Third-Party Beneficiary. The provisions of this Agreement
and of the documents to be executed and delivered at Closing are and will be for
the benefit of Seller and Purchaser only and are not for the benefit of any
third party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
SECTION 10.13 Captions. The section headings appearing in this Agreement
are for convenience of reference only and are not intended, to any extent and
for any purpose, to limit or define the text of any section or any subsection
hereof.
SECTION 10.14 Construction. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any exhibits or amendments hereto.
SECTION 10.15 Recordation. This Agreement may not be recorded by any party
hereto. The provisions of this Section 10.15 shall survive the Closing or any
termination of this Agreement.
SECTION 10.16 Audit Rights and Tenant Reconciliation Statements . For a
period of three (3) years after the Closing, Purchaser shall allow Seller and
its agents and representatives access without charge to (i) all files, records,
and documents delivered to Purchaser at the Closing, and (ii) the financial
records and financial statements for the Property (including but not limited to,
financial records and financial statements related to the Reconciliation
Statements, as such term is hereinafter defined) for the calendar year in which
the Closing occurs and for the calendar year preceding the calendar year in
which the Closing occurs, upon reasonable advance notice and at all reasonable
times, to examine and to make copies of any and all such files, records,
documents, and statements, which right shall survive the Closing. Purchaser
shall prepare and provide to the tenants under the Leases a statement of the
reconciliation of expenses between the landlord and the tenants under the Leases
in accordance with the terms of the Leases (the "RECONCILIATION STATEMENTS"),
and Purchaser shall provide Seller with copies of the Reconciliation Statements
at the same time that they are furnished to the Tenants. If amounts are due from
any Tenants based on the Reconciliation Statements, Purchaser shall make a good
faith effort after Closing to collect the same in the usual course of
Purchaser's operation of the Property, and upon collection, to remit to Seller,
Seller's share of those amounts in accordance with the terms of Section 4.4
hereof; however, Purchaser shall not be obligated to institute any lawsuit or
other collection procedures to collect said amounts. Seller may attempt to
collect amounts due to it pursuant to the reconciliation of expenses between the
landlord and the tenants in accordance with the terms of the Leases, and Seller
may institute any lawsuit or collection procedures, but Seller may not evict any
tenant after Closing. The provisions of this Section 10.16 shall survive the
Closing.
SECTION 10.17 Termination of Agreement. If this Agreement is terminated by
Purchaser or Seller in accordance with any of the provisions of this Agreement
that give Purchaser or Seller the right to terminate this Agreement, then
neither party shall have any further rights or obligations hereunder (except for
indemnity obligations of either party pursuant to the other provisions of this
Agreement) and the Deposit shall be returned to Purchaser and each party shall
bear its own costs incurred hereunder.
SECTION 10.18 1031 Exchange. Purchaser agrees to reasonably cooperate with
Seller (without liability or cost to Purchaser) in Seller's efforts to
consummate the sale of the Property in a manner which qualifies as a so-called
"deferred" or "like-kind" exchange pursuant to Section 1031 of the Internal
Revenue Code for Seller, one or more of Seller's partners or principals, or of
any affiliate thereof (a "SELLER 1031 EXCHANGE"). Such cooperation shall
include, without limitation, acquiring the Property or any portion thereof or
interest therein from a qualified intermediary, Seller assigning all or any
portion of its rights and/or obligations under this Agreement to a qualified
intermediary and Purchaser paying all or any portion of the Purchase Price to a
qualified intermediary. Seller shall fully indemnify, defend and hold Purchaser
harmless from and against any and all liability, claims, damages, expenses
(including, without limitation, reasonable attorneys' fees other than those
incurred prior to Closing to review documents to facilitate the Seller 1031
Exchange), taxes, fees, proceedings and causes of action of any kind or nature
whatsoever arising out of, connected with or in any manner related to such
Seller 1031 Exchange. The provisions of the immediately preceding sentence shall
survive Closing and the transfer of the Property to Purchaser.
SECTION 10.19. Transfer Fee.
(A) As additional consideration for the conveyance of the Property,
Purchaser shall pay to Seller 100% of the Net Gain on any Transfer that occurs
from and after the Closing Date to the first anniversary of the Closing Date, as
follows:
(i) "Transfer" means any direct or indirect transfer of the Property
which results in the Property not being controlled by Tishman Speyer Property,
L.P., Tishman Speyer Real Estate Venture VI, L.P. and/or any affiliate thereof.
The term "Transfer" does not include any of the foregoing to an Affiliated Party
(as hereinafter defined), and does not include (1) any mortgage loan or
mezzanine loan made substantially on institutional loan terms or any preferred
equity investment in Purchaser. An "affiliate" for purposes of this Section
means, when used with reference to a specified party, any person or entity that
directly or indirectly controls, or is controlled by, or is under common control
with the specified party.
(ii) A Transfer shall be deemed to have occurred upon the delivery
of a deed, assignment, stock purchase agreement, merger certificate or other
evidence of such Transfer to the transferee or its agent or designee and payment
of consideration therefor. A Transfer pursuant to an option or similar contract
described in item (A)(i)(c) above shall be deemed to have occurred upon the
exercise of the applicable option, the delivery (if applicable) of a deed,
assignment or other evidence of such Transfer to the transferee or its agent or
designee and payment of consideration therefor.
(iii) "Net Gain" with respect to any asset or interest subject to a
Transfer is the excess, as of the date of such Transfer, of (a) the fair market
value of the gross consideration (including, without limitation, cash and all
other property, notes, securities, contracts, and instruments) given to or for
the benefit of Purchaser or any direct or indirect holder of an interest in
Purchaser (other than the sale of stock in any publicly held company) or the
Property in connection with the Transfer of such asset or interest over (b) the
sum of (1) all reasonable Transfer expenses, such as legal fees, brokerage
commissions, transfer taxes, recording fees, and other fees for customary
transfer services paid to parties unrelated to Purchaser, the transferor, and
the transferee in connection with the Transfer of such asset or interest, plus
(2) the product of the Cost Percentage indicated below for such asset or
interest multiplied by the Purchase Price, plus (3) the unamortized portion of
any additional capitalized or expensed investment fully paid by Purchaser (as
evidenced to the reasonable satisfaction of Seller) after the Closing Date and
prior to the Transfer which is attributable to such asset or interest.
(iv) If the entire Property or all of the ownership interests in
Purchaser are the subject of a Transfer, the Cost Percentage shall be one
hundred percent (100%). If the interest subject to a Transfer represents less
than one hundred percent of the ownership interest in Purchaser, the applicable
Cost Percentage for such Transfer shall be equal to the percentage of ownership
interest being transferred.
(B) The additional consideration payable by Purchaser to Seller
under this Section 10.19 shall be due and payable by wire transfer of
immediately available funds (to an account designated by Seller) within ten (10)
days after the date the Transfer occurs, whether or not the gross consideration
given in connection for Transfer is in cash or non-cash form.
(C) Any dispute arising from or in any way relating to this Section
10.19, including breach thereof, shall be determined in a federal or state court
in the City of New York, to which Purchaser and Seller hereby submit for
jurisdiction; provided, that by written notice to Purchaser given within twenty
(20) days after Seller has been served with a complaint which has been filed in
court, Seller may in its sole and absolute discretion cause such dispute to be
resolved instead by expedited arbitration in accord with the Commercial
Arbitration Rules for Expedited Procedures of the American Arbitration
Association by a single arbitrator who is appointed by the President of the Real
Estate Board of New York and has no affiliation with any party to such dispute.
(D) The provisions of this Section 10.19 shall survive Closing.
SECTION 10.20. Exculpation. Seller agrees that it does not have and will
not have any claims or causes of action against any disclosed or undisclosed
officer, director, employee, trustee, shareholder, partner, principal, parent,
subsidiary or other affiliate of Purchaser, including, without limitation,
Tishman Speyer Properties, L.P., or any officer of, director, employee, trustee,
shareholder, partner or principal of a any such parent, subsidiary or other
affiliate (collectively, "PURCHASER'S AFFILIATE"), arising out of or in
connection with this Agreement or the transactions contemplated hereby. Seller
agrees to look solely to Purchaser and its assets for the satisfaction of any
liability or obligation arising under this Agreement or the transactions
contemplated hereby, or for the performance of any of the covenants, warranties
or other agreements contained herein, and further agrees not to sue or otherwise
seek to enforce any personal obligation against any of Purchaser's Affiliates
with respect to any matters arising out of or in connection with this Agreement
or the transactions contemplated hereby. Without limiting the generality of the
foregoing provisions of this Section 10.20, Seller hereby unconditionally and
irrevocably waives any and all claims and causes of action of any nature
whatsoever it may now or hereafter have against Purchaser's Affiliates, and
hereby unconditionally and irrevocably releases and discharges Purchaser's
Affiliates from any and all liability whatsoever which may now or hereafter
accrue in favor of Seller against Purchaser's Affiliates, in connection with or
arising out of this Agreement or the transactions contemplated hereby. The
provisions of this Section 10.20 shall survive the termination of this Agreement
and the Closing.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the Effective Date.
SELLER:
METROPOLITAN TOWER LIFE INSURANCE COMPANY,
a Delaware corporation
By: /s/ Robert R. Merck
-------------------
Name: Robert R. Merck
Title: Vice President
PURCHASER:
TISHMAN SPEYER DEVELOPMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Robert Speyer
--------------------------
Name:
Title:
Escrow Agent executes this Agreement below solely for the purpose of
acknowledging that it agrees to be bound by the provisions of Sections 1.6 and
1.7 hereof.
ESCROW AGENT:
JPMorgan Chase Bank, N.A.,
a national banking association
By: /s/ Jason M. Orben
-----------------------
Name: Jason M. Orben
Title: Vice President