Exhibit 10.2
Certain portions of this exhibit have been omitted based upon a request for
confidential treatment. Omitted portions are indicated by a "*" and have been
filed with the Securities and Exchnage Commission.
PURCHASE AGREEMENT
AGREEMENT dated as of June 2, 1998, by and between YOUNG WOO, having an
office at 450 Park Avenue, New York, New York 10022, individually and as nominee
(the "Seller") and GLOBIX CORPORATION, a Delaware corporation having an office
at 295 Lafayette Street, New York, New York 10012 (the "Purchaser").
WHEREAS, Seller is the holder of a 60% interest in 139 Centre Street
Associates, LLC, a limited liability company (the "LLC"); and
WHEREAS, Purchaser wishes to purchase, and Seller wishes to sell Seller's
60% interest in the LLC (the "Interest") pursuant to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. PURCHASE AND SALE. Upon the terms and subject to the conditions
contained herein, Seller agrees to sell, and Purchaser agrees to purchase the
Interest. On the Closing Date (as that term is hereinafter defined), Seller
shall execute and deliver to Purchaser an Assignment of Limited Liability
Company Interest in substantially the form of Exhibit A attached hereto.
2. PURCHASE PRICE; LETTER OF CREDIT; ADDITIONAL CONSIDERATION.
(a) PURCHASE PRICE. The aggregate purchase price for the Interest shall
be the sum of One Million Nine Hundred Fifty Thousand Dollars ($1,950,000). A
non-refundable deposit of
$300,000 to be applied to the purchase price is being paid to Seller by bank
check or wire transfer of immediately available funds concurrently with the
execution hereof. The balance of the purchase price shall be paid to Seller in
full at the Closing (as that term is hereinafter defined) by wire transfer to an
account designated in writing by Seller, provided that Purchaser has received
written wire transfer instructions at least three (3) days prior to the
designated Closing Date.
(b) LETTER OF CREDIT. As security for the balance of the purchase price
of One Million Six Hundred Fifty Thousand Dollars ($1,650,000) to be paid at the
Closing, the Purchaser is delivering to the Seller concurrently with the
execution hereof an irrevocable letter of credit issued by Fleet Bank.
(c) ADDITIONAL CONSIDERATION. As additional consideration for the
purchase of the Interest, Purchaser agrees to pay to Seller a sum equal to the
greater of * Dollars (*) (the "Cash Portion") or * percent (*%) of the gross
sales price of the land and building located at 139 Centre Street, New York, New
York (the "Property") if the gross sales price is in excess of Seventeen Million
Five Hundred Fifty Thousand Dollars ($17,550,000) when, as and if the Property
is sold by Purchaser or any of its subsidiaries, including, without limitation,
BLP Acquisition LLC ("BLP") prior to June 1, 2018. Effective June 1, 2018, the
Cash Portion shall be increased by * percent (*%) to * and thereafter the Cash
Portion (as previously increased) shall be further increased every fifth year by
* percent (*%). Except as set forth in this subsection (c), nothing contained
herein
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shall give Seller or to the LLC any interest whatsoever in the Property or the
use, management, operation or profits thereof. In the event the Purchaser, BLP
or any of its other subsidiaries contracts to sell the Property, it will, within
21 days thereafter, provide written notice to Seller, which notice shall be
accompanied by a copy of such contract.
3. CLOSING. The closing of the purchase and sale of the Interest (the
"Closing") shall take place at the offices of Milberg Weiss Bershad Hynes &
Lerach LLP, One Pennsylvania Plaza, New York, New York 10119, at 10:00 o'clock
a.m. on June 30, 1999 (the "Closing Date") or at such other time, date and/or
place as may be agreed to by the parties.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as follows:
(a) NO VIOLATIONS; VALIDITY. No provision of any agreement, instrument or
understanding, or of any order, judgment, decree, statute, rule or regulation of
any court or governmental authority, to which Purchaser is a party or by which
it is bound or subject, has been or will be violated by the execution by it of,
or the performance or satisfaction of any agreement or condition upon its part
to be performed or satisfied under, this Agreement. This Agreement and each of
the other instruments executed or to be executed by Purchaser pursuant to this
Agreement has been duly authorized and constitutes or will constitute the valid
and legally binding obligations of the Purchaser in accordance with its terms
except as enforcement may be limited by applicable bankruptcy, insolvency and
other laws
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relating to or affecting creditors' rights generally and subject also to general
principles of equity affecting the right to specific performance and injunctive
relief.
(b) AUTHORIZATIONS; APPROVALS. No authorization or approval of, or filing
with, or compliance with any applicable order, judgment, decree, statute, rule
or regulation of, any court or governmental authority, or approval, consent,
release or action of any third party, which has not been obtained, is required
in connection with the execution and delivery by the Purchaser of, or the
performance or satisfaction of, any agreement of the Purchaser contained in or
contemplated by, this Agreement.
(c) INVESTMENT INTENT. The Interest to be acquired by the Purchaser
hereunder will be acquired for investment for the Purchaser's own account and
not with a view to a sale or other distribution thereof within the purview of,
and no portion of the Interest will be offered, sold, or otherwise disposed of
by the Purchaser in violation of, any applicable provisions of the Securities
Act of 1933, as amended, any state "blue sky" or other securities laws or any
rules and regulations thereunder.
(d) NO RELIANCE OR REPRESENTATIONS. Purchaser acknowledges that neither
Seller nor any of his agents has made any representations or warranties in
connection with this Agreement or the transactions contemplated herein, except
those expressly set forth in Section 5. The Purchaser has, independently (or
together with its financial advisors) and without reliance on Seller or any of
his agents, and based upon such
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documents and information as it deemed appropriate, made its own analysis and
decision to enter into this Agreement. In connection with that decision,
neither Seller nor any of his agents has made (and has no responsibility with
respect to) and the Purchaser is not relying upon, any representation or
warranty (other than those expressly set forth in Section 5), express or
implied, or any duty of disclosure by Seller or any of his agents as to any
matter.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as follows:
(a) GOOD TITLE. He owns beneficially and of record the Interest, which
constitutes his entire interest in the LLC and he has full and unrestricted
power and authority to sell, assign and transfer the Interest, to Purchaser in
the manner provided herein, free and clear of any liens, claims, charges,
options, and encumbrances of any nature or kind whatsoever.
(b) NO RELIANCE OR REPRESENTATIONS. Seller acknowledges that none of
Purchaser, Purchaser's subsidiaries, or any of their respective officers,
directors, employees or agents (collectively, the "Purchaser's Affiliates") has
made any representations or warranties in connection with this Agreement or the
transactions contemplated herein, except those expressly set forth in section 4.
Seller has, independently (or together with his financial advisors) and without
reliance on Purchaser or any of the Purchaser's Affiliates, and based upon such
documents and information as he deemed appropriate, made his own analysis and
decision to enter into this Agreement. In connection with
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that decision, neither Purchaser nor any of the Purchaser's Affiliates has made
(and has no responsibility with respect to) and Seller is not relying upon, any
representation or warranty (other than those expressly set forth in Section 4),
express or implied, or any duty of disclosure by Purchaser or any of the
Purchaser's Affiliates, as to any matter.
(c) NO VIOLATIONS; VALIDITY. No provision of any agreement, instrument or
understanding, or of any order, judgment, decree, statute, rule or regulation of
any court or governmental authority to which Seller is a party or by which he is
bound or subject, has been or will be violated by the execution by Seller of, or
the performance or satisfaction of any agreement or condition upon his part to
be performed or satisfied under, this Agreement. This Agreement and each of the
other instruments executed or to be executed by Seller pursuant to this
Agreement has been duly authorized and constitutes or will constitute the valid
and legally binding obligations of Seller in accordance with its terms except as
enforcement may be limited by applicable bankruptcy, insolvency and other laws
relating to or affecting creditors' rights generally and subject also to general
principles of equity affecting the right to specific performance and injunctive
relief.
(d) AUTHORIZATIONS; APPROVALS. No authorization or approval of, or filing
with, or compliance with any applicable order, judgment, decree, statute, rule
or regulation of, any court or governmental authority, or approval, consent,
release or action of any third party, is required in connection with the
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execution and delivery by Seller of, or the performance or satisfaction of any
agreement of Seller contained in or contemplated by, this Agreement.
(e) CONCERNING THE LLC. Seller represents and warrants that the LLC has
carried on no business other than (i) that related to the Contract of Sale dated
November 19, 1997 between Bank Leumi USA and the LLC for premises located at 139
Centre Street, New York, New York, as modified by (a) letter agreement between
said parties dated January 21, 1998, (b) Modification of Contract of Sale
between said parties dated January 28, 1998 and (c) letter agreement between
said parties dated May 4, 1998 and (ii) negotiating a lease with the State of
New York for the entire Property, which negotiations have terminated and no such
lease was ever finalized. As of the date hereof, the LLC has no assets or
liabilities of any nature or kind whatsoever except architect's fees, legal fees
and other expenses not exceeding $50,000 relating to the activities set forth
above, which Seller shall indemnify and hold Purchaser harmless from and
against. Prior to the Closing, Seller shall cause the LLC to refrain from
taking any action of any nature or kind whatsoever, without the prior written
consent of the Purchaser.
6. RELEASES. Concurrently with the execution hereof, Purchaser and Seller
are exchanging mutual releases. In addition, general releases in favor of
Purchaser and Seller are being delivered by the LLC, Harshad Shah and Irwin Liu.
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7. INDEMNIFICATION BY SELLER. From and after the date hereof and the
Closing Date, Seller shall indemnify and hold harmless Purchaser and Purchaser's
Affiliates from and against any and all claims, losses, liabilities, costs,
damages and expenses, including, without limitation, reasonable attorneys fees
(collectively, "Losses") arising out of or in any way connected with a
misrepresentation, breach of warranty or default in performing a covenant by
Seller contained in this Agreement.
8. INDEMNIFICATION BY PURCHASER. From and after the date hereof and the
Closing Date, the Purchaser shall indemnify and hold harmless Seller and his
agents from and against any and all Losses arising out of or in any way
connected with a misrepresentation, breach of warranty or default in performing
a covenant by the Purchaser contained in this Agreement.
9. FURTHER ASSURANCES. From and after the date of this Agreement and the
Closing Date, each of the parties hereto shall from time to time, at the request
of any other party and without further consideration, do, execute and deliver,
or cause to be done, executed and delivered, all such further acts, things and
instruments as may be reasonably requested or required more effectively to
evidence and give effect to the transactions provided for in this Agreement.
10. NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered or if mailed by first
class registered or certified mail return receipt requested, or by first class
mail
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if received, addressed to the parties at their respective addresses set forth or
referred to on the first page of this Agreement, with copies to their respective
counsel, Milberg Weiss Bershad Hynes & Lerach LLP, Att: Arnold N. Bressler,
Esq., One Pennsylvania Plaza, New York, New York 10119, in the case of
Purchaser, and Brown Raysman Millstein Felder & Steiner LLP, Att: Kenneth M.
Block, Esq., 120 West 45th Street, New York, New York 10036, in the case of
Seller, or to such other person or address as may be designated by like notice
hereunder.
11. PARTIES IN INTEREST. All representations, warranties, agreements and
covenants herein and any certificate or agreement delivered in connection
herewith shall survive the Closing Date and be binding upon, and shall inure to
the benefit of and be enforceable by, the parties hereto and their respective
legal representatives, successors (including heirs and distributees in the case
of Seller) and assigns, but no other person shall acquire or have any rights
under this Agreement.
12. ENTIRE AGREEMENT; MODIFICATION; WAIVER. This Agreement contains the
entire agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersedes all prior negotiations and understandings,
if any, and there are no agreements, representations or warranties other than
those set forth, provided for or referred to herein. All exhibits and schedules
to this Agreement are expressly made a part of this Agreement as fully as though
completely set forth herein, and all references to this Agreement herein, in any
of such writings or elsewhere shall be deemed to refer to and
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include all such writings. Neither this Agreement nor any provisions hereof may
be modified, amended, waived, discharged or terminated, in whole or in part,
except in writing signed by the party to be charged. Either party may extend
the time for or waive performance of any obligation of any other party or waive
any inaccuracies in the representations or warranties of any other party or
compliance by any other party with any of the provisions of this Agreement. No
waiver of any such provisions or of any breach of or default under this
Agreement shall be deemed or shall constitute a waiver of any other provisions,
breach or default, nor shall any such waiver constitute a continuing waiver.
13. BROKERS. The parties represent to each other that they have not
employed any broker, finder or intermediary in connection with the transaction
contemplated herein who might be entitled to a fee or commission upon the
consummation hereof.
14. FEES AND EXPENSES. All costs and expenses incurred in connection
with this Agreement and the transaction contemplated hereby shall be paid by the
party incurring such cost or expense.
15. INTERPRETATION.
(a) GOVERNING LAW. This Agreement shall be governed and construed and
enforced in accordance with the laws of the State of New York applicable to
contracts made and to be performed exclusively in that State without giving
effect to the principles of conflict of laws.
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(b) INTERPRETATION. All pronouns and words used in this Agreement shall
be read in the appropriate number and gender, the masculine, feminine and neuter
shall be interpreted interchangeably and the singular shall include the plural
and vice versa, as the circumstances may require.
16. HEADINGS; COUNTERPARTS. The article and section headings in this
Agreement are for reference purposes only and shall not define, limit or affect
the meaning or interpretation of this Agreement. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original but all
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
/s/ Young Woo
------------------------------
Young Woo, Individually and as
Nominee
GLOBIX CORPORATION
By /s/ Marc H. Bell, President
---------------------------
(Title)
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