Exhibit 10.2
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GALAXY LI ASSOCIATES LLC
AS SELLER
AND
RECKSON EAB LLC
AS BUYER
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CONTRACT OF SALE
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PREMISES: EAB PLAZA
UNIONDALE, NEW YORK
JULY 8, 2005
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TABLE OF CONTENTS
PAGE
1. Defined Terms................................................................................................1
2. Purchase and Sale of Assets..................................................................................1
3. Purchase Price...............................................................................................3
4. State of Title...............................................................................................3
5. Objections to Title; Title Insurance Policy..................................................................5
6. Letter of Credit.............................................................................................8
7. Access.......................................................................................................8
8. Confidentiality.............................................................................................10
9. Existing Mortgage...........................................................................................10
10. Leases and Subleases........................................................................................11
11. Closing Date................................................................................................13
12. Ground Lease Provisions; Buyer Loan.........................................................................14
13. Closing Documents...........................................................................................17
14. Adjustments and Other Costs.................................................................................20
15. Conditions Precedent to Buyer's Obligation to Close.........................................................25
16. Conditions Precedent to Seller's Obligations to Close.......................................................26
17. Escrow Conditions...........................................................................................26
18. Option to Exchange Property of Like Kind....................................................................27
19. Brokerage...................................................................................................28
20. Notices.....................................................................................................28
21. Representations, Warranties and Covenants of Seller.........................................................29
22. Representations, Warranties and Covenants of Buyer..........................................................36
23. No Assignment...............................................................................................37
24. Allocation of Purchase Price, Transfer and Sales Taxes......................................................38
25. Real Estate Tax Refunds and Proceedings.....................................................................39
26. Christmas Tree Lighting Ceremony............................................................................39
27. Termination Events..........................................................................................39
28. Effect of Termination; Buyer's Rights to Seek Specific Performance..........................................40
29. Risk of Loss................................................................................................41
30. Miscellaneous...............................................................................................41
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SCHEDULES
Description Schedule
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Defined Terms................................................................................................1
Description of Ground Lease..........................................................................2.1(a)(1)
Description of Land..................................................................................2.1(a)(2)
Description of Development Parcel..........................................................................2.2
Covenants, Easements and Restrictions......................................................................4.2
Survey.....................................................................................................4.3
Leases.....................................................................................................4.7
Subleases..................................................................................................4.8
License Agreements.........................................................................................4.9
Letter of Credit...........................................................................................6.1
Assignment and Assumption of Master Lease Agreement (Landlord's Interest).................................10.1
Assignment and Assumption of Master Lease Agreement (Tenant's Interest)...................................10.2
Assignment and Assumption of Leases Agreement.............................................................10.3
Assignment and Assumption of Subleases Agreement..........................................................10.4
Tenant Estoppel Certificate...............................................................................10.5
Estoppel Notes..........................................................................................10.5-1
C&W Tenant/Subtenant List.................................................................................10.9
Assignment and Assumption of Ground Lease With Consent.................................................12.2(a)
Assignment and Assumption of Ground Lease Without Consent...........................................12.2(b)(1)
Guaranty of Ground Lease............................................................................12.2(b)(2)
Indemnification as to Guaranty of Ground Lease............................................................12.4
Development Parcel Sublease............................................................................12.6(a)
Buyer Loan Note..........................................................................................12.7A
Buyer Loan Mortgage......................................................................................12.7B
Development Agreement....................................................................................12.7C
Bill of Sale...........................................................................................13.1(a)
Assignment and Assumption of Contracts.................................................................13.1(f)
Form of Letter to Tenants..............................................................................13.1(i)
Form of Letter to Subtenants...........................................................................13.1(j)
Bargain and Sale Deed without Covenants................................................................13.1(p)
General Assignment and Assumption......................................................................13.1(r)
Employees.................................................................................................14.3
Certain Free Rent.........................................................................................14.9
Summary of Litigation.....................................................................................21.6
Rent Roll................................................................................................21.17
Service Contracts and Maintenance Contracts..............................................................21.19
Certificate of Insurance.................................................................................21.20
Brokerage Commissions....................................................................................21.21
Membership Interest Pledge Agreement.....................................................................24.21
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CONTRACT OF SALE
CONTRACT OF SALE, made as of July 8, 2005, between GALAXY LI
ASSOCIATES, LLC, a Delaware limited liability company, having its principal
business address at c/o The Moinian Group, 399 Park Avenue, 22nd Floor, New
York, New York 10022 (hereinafter referred to as "SELLER"), and RECKSON EAB LLC,
a Delaware limited liability company, having its principal business address at
c/o Reckson Associates Realty Corp., 225 Broadhollow Road, Melville, New York
11747 (hereinafter referred to as "BUYER").
1. DEFINED TERMS. The terms set forth on Schedule 1 constitute defined
terms in this Agreement, and, when used in this Agreement, they shall have the
respective meanings set forth on Schedule 1.
2. PURCHASE AND SALE OF ASSETS.
2.1 On the Closing Date and upon the terms and subject to the
conditions of this Agreement, Seller shall sell, transfer, convey, assign and
deliver to Buyer, and Buyer shall purchase and acquire from Seller, free and
clear of all Encumbrances other than the Permitted Encumbrances, all of Seller's
right, title and interest (including all rights, benefits, duties and
obligations) under, in and to the following (collectively, the "ACQUISITION
ASSETS"):
(a) subject to the provisions of Section 2.2 and 12.6, that
certain Lease Agreement between the County of Nassau ("NASSAU COUNTY"), as
landlord, and Coliseum Plaza Associates (predecessor-in-interest to Seller), as
tenant, executed by Coliseum Plaza Associates on March 26, 1981 and executed by
Nassau County on April 28, 1981 (together with all amendments thereto, as such
Lease Agreement and amendments are more particularly described on Schedule
2.1(a)(1) attached hereto and made a part hereof, the "GROUND LEASE"), with
respect to the land described on Schedule 2.1(a)(2) attached hereto and made a
part hereof (the "LAND"), together with all easements, covenants, agreements,
rights, interests, privileges, tenements, and appurtenances appertaining
thereto;
(b) the buildings, structures, facilities, amenities and other
improvements now or hereafter constructed or situated on, over or under the Land
(the "BUILDINGS"), commonly known collectively with the Land as EAB Plaza,
Uniondale, New York (all interests of Seller in the Land and other property
pursuant to the Ground Lease, and the Buildings, are collectively referred to as
the "PREMISES");
(c) the Personal Property;
(d) all inventories of supplies located in the Buildings as of
the date that Buyer acquires the Acquisition Assets (the "INVENTORY") (except to
the extent that Buyer, or its designee, fails to hold (upon the consummation of
the Closing) all requisite licenses, if any, to acquire said Inventory, in which
case Seller shall cooperate with Buyer to give Buyer the benefit of any such
licenses);
(e) all books, records, files and papers (whether in hard copy
or computer format, and including all existing surveys, blueprints, drawings,
plans and specifications, whether structural, HVAC, mechanical, plumbing or
otherwise, warranties and guaranties, and all tenant lists and data,
correspondence with tenants, vendors, utilities and other third parties)
relating to the Premises, Inventory, Leases, Subleases, Licenses (all as
hereinafter defined) and Personal Property to the extent in Seller's or its
agents' or employees' possession or control (collectively, the "FILES"), but
excluding any investment, financial projections, valuation and other similar
proprietary or confidential materials maintained by Seller;
(f) all of Seller's right to the telephone and telecopier
numbers and electronic mail addresses used by Seller with respect to the
Premises and to any telephone listings in the local telephone directories;
(g) copies of personnel and employment records that relate to
the employees at the Premises that will be employed by Buyer on and after the
Closing Date to extent in Seller's or its agents' or employees' possession or
control;
(h) the service, maintenance, supply and other agreements
relating to the operation of the Premises, together with all modifications and
amendments thereof and supplements relating thereto (collectively, the
"CONTRACTS") which are Assumed Contracts;
(i) the name "EAB Plaza," and all other trade names, trademarks
and intangible property owned or used by Seller in connection with the Premises;
(j) all Governmental Authorizations owned, held or utilized by
Seller or with respect to the operation of the Premises (but not including
liquor licenses), and all pending applications related to the Premises or its
operations, in each case to the extent transferable to Buyer (the "PERMITS");
(k) Seller's rights as landlord pursuant to the Leases and
Subleases; and
(l) all of Seller's rights under any existing mutual or
reciprocal operating covenants, easements, conditions and restrictions,
guarantees and warranties, to the extent assignable.
2.2 Notwithstanding anything to the contrary set forth in Section
2.1 or elsewhere in this Agreement, Buyer and Seller acknowledge that it is the
intent of the parties that Seller retain 100% of Seller's beneficial interest in
and to the portion of the Land described on Schedule 2.2 attached hereto and
made a part hereof (the "DEVELOPMENT PARCEL") and no part of Seller's beneficial
interest in and to the Development Parcel is intended to or shall be conveyed to
or acquired by Buyer hereunder (other than pursuant to the Pledge Agreement (as
defined in Section 21.24(d))), and that Seller shall convey legal title to its
interest in the portion of the Ground Lease covering the Development Parcel only
if and to the extent that Seller and Buyer are unable to consummate a
Bifurcation as provided in Section 12.6(a).
2.3 Notwithstanding anything to the contrary set forth in Section
2.1 or elsewhere in this Agreement, Seller is not selling or otherwise
transferring to Buyer any of, and Buyer shall acquire no interest in or to, the
following:
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(a) all books, records, files and papers (whether in hard copy
or computer format) that are not used in, or that do not relate to or affect,
the Premises;
(b) any Governmental Authorization that relates to or affects
the Premises but is not assignable or transferable;
(c) all personnel and employment records that relate to former
or current employees of the Premises, except to the extent that Legal
Requirements require such records, or copies of such records, to remain at the
Premises and except as stated in Section 2.1(g) above;
(d) except as otherwise expressly set forth herein, any
insurance policies to which Seller is a party;
(e) Seller's right to any of its trade names, trademarks or
service marks not specifically provided for in Section 2.1; and
(f) any other property of Seller not related to the ownership or
operation of the Premises.
2.4 Effective as of the Closing Date, Buyer shall assume, or take
subject to (a) all obligations and Liabilities arising from the Permitted
Encumbrances and operation of the Premises generally from and after the Closing
Date, and (b) all obligations and Liabilities of Seller arising under the
Assumed Contracts from and after the Closing Date.
3. PURCHASE PRICE. The purchase price for the Premises (the "PURCHASE
PRICE") is TWO HUNDRED FORTY MILLION TWO HUNDRED THOUSAND and 00/100 DOLLARS
($240,200,000.00), to be paid in full at the Closing by immediately available
federal funds wired to an account or accounts designated by Seller not less than
one (1) Business Day prior to the Closing, subject to such adjustments as are
required by this Agreement.
4. STATE OF TITLE. Buyer shall accept leasehold title to the Ground
Lease and fee simple title to the Buildings, and title to the balance of the
Acquisition Assets, free and clear of all liens and Encumbrances, but subject to
the following (collectively, the "PERMITTED ENCUMBRANCES"):
4.1 all building, zoning and other restrictions, regulations,
requirements, laws, ordinances, resolutions and orders of any state, municipal,
federal or other governmental authority, including all boards, bureaus,
commissions, departments and bodies thereof, now or hereafter having or
acquiring jurisdiction over the Premises or the use or improvement thereof;
4.2 covenants, easements and restrictions and other matters set
forth in Schedule 4.2 attached hereto and made a part hereof and all other
covenants, easements and restrictions and other matters, provided the same do
not prevent or materially interfere with the present use or occupancy of, or the
present means of access to, the Buildings;
4.3 any state of facts shown on the survey attached hereto as
Schedule 4.3 and made a part hereof and any state of facts that would be shown
on any update of such survey, provided the same do not prevent or materially
interfere with the present use or occupancy of, or the present means of access
to, the Buildings;
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4.4 any state of facts an inspection of the Acquisition Assets would
reveal;
4.5 rights, if any, relating to construction, maintenance and
operation of public utility lines, wires, poles, cables, pipes, distribution
boxes and other equipment and installations on, over and under the Premises;
4.6 encroachments and projections of areas, cornices, trim, fences,
hedges, retaining walls, awnings, canopies, ledges, or other improvements or
installations from the Premises onto any street or highway or onto adjoining
property, provided the Title Company shall insure, without additional premium,
that all such improvements or installations may remain so long as same shall
stand, and encroachments of similar elements projecting from adjoining property
over the Premises, provided same do not prevent or materially interfere with the
present use or occupancy of, or the present means of access to, the Buildings;
4.7 the leases affecting the Premises between Seller and the tenants
thereunder, as identified in Schedule 4.7 annexed hereto and made a part hereof,
as the same may be amended or modified in accordance with the terms hereof, and
any lease entered into, amended or modified between the date of this Agreement
and Closing, provided the same is entered into, amended or modified in
accordance with the applicable provisions of this Agreement (collectively, the
"LEASES");
4.8 the subleases affecting the Premises between Seller, or its
predecessor(s), as sublandlord, and the subtenants thereunder, as identified in
Schedule 4.8 attached hereto and made a part hereof, as same may be amended or
modified in accordance with the terms hereof, and any sublease entered into,
amended or modified between the date of this Agreement and Closing, provided the
same is entered into, amended or modified in accordance with the applicable
provisions of this Agreement (collectively, the "SUBLEASES");
4.9 the license agreements affecting the Premises between the Seller
and the licensees thereunder (the "LICENSES"), as set forth in Schedule 4.9
attached hereto and made a part hereof, and any license agreement entered into,
amended or modified between the date of this Agreement and Closing, provided the
same is entered into, amended or modified in accordance with the applicable
provisions of this Agreement;
4.10 the Ground Lease and Master Lease;
4.11 real estate Taxes or payments in lieu of Taxes, water charges
and sewer rents, if any, subject to adjustment as hereinafter provided;
4.12 subject to the provisions of Section 21.6, litigation affecting
the Premises as set forth in Schedule 21.6 attached hereto and made a part
hereof, and any litigation commenced by third parties after the date of this
Agreement, provided that such litigation either is covered by insurance or does
not have a material adverse effect on the transaction contemplated by this
Agreement or title to the Premises;
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4.13 all notes or notices of, or violations of laws, rules,
regulations, statutes, ordinances, orders or requirements, now or hereafter
against or affecting the Premises;
4.14 the Assumed Contracts;
4.15 the standard printed exclusions from coverage contained in the
ALTA form of owners title policy currently in use in New York;
4.16 minor imperfections of title, if any, none of which
individually or in the aggregate with all others is substantial in amount,
materially detracts from the value or impairs the use of the Premises or is of a
nature that a recognized title company would not either insure over or provide
affirmative coverage against such imperfection without additional or special
premium;
4.17 any other matter which the Title Company may raise as an
exception to title, provided that (a) the Title Company will insure against
collection or enforcement of same out of the Premises without additional premium
and (b) no prohibition of present use or maintenance of the Premises will result
therefrom; and
4.18 any Encumbrance to which Buyer waives or is deemed to waive
objection under the terms of this Agreement.
5. OBJECTIONS TO TITLE; TITLE INSURANCE POLICY.
5.1 Buyer agrees promptly to apply for and procure a title insurance
commitment from Liberty Title Agency LLC (together with any other title company
designated by Buyer, collectively, "LIBERTY") for an aggregate amount of 65% of
said insurance and Royal Abstract of New York LLC ("ROYAL"), for 35% of said
insurance (collectively, the "TITLE COMPANY"), and to cause title to the
Premises to be searched and examined by the Title Company. Within fifteen (15)
Business Days after the Effective Date, as hereinafter defined (the "TITLE
OBJECTION NOTIFICATION DATE"), Buyer shall deliver, or cause to be delivered, to
Seller's attorneys, Fried, Frank, Harris, Shriver & Jacobson LLP, One New York
Plaza, New York, New York 10004, Attention: Robert J. Sorin, Esq., copies of the
Title Company's title commitment, all Tax and departmental searches, survey and
survey reading, along with a letter from Buyer or Buyer's attorney setting forth
any objections to title. All updates, supplements and continuations of the title
commitment and subsequent searches (collectively, the "TITLE UPDATES") shall
thereafter be promptly furnished to Seller's attorneys. Notwithstanding anything
to the contrary contained herein, (a) in the event that Royal is willing to
provide insurance and/or affirmative insurance, or make any other underwriting
decision with respect to, the title insurance policy insuring Buyer and/or its
lender, and Liberty is not willing to provide such insurance, affirmative
insurance and/or make the same underwriting decision, then Buyer shall either
accept the insurance, affirmative insurance and/or underwriting decision of
Royal, and have the title written entirely with Royal (in which case only Royal
shall be the Title Company for all purposes of this Agreement), or waive any
objections or matters otherwise raised by Liberty and not by Royal, and accept
such title insurance policy as Liberty is willing to provide, and (b) in the
event that Liberty is willing to provide insurance and/or affirmative insurance,
or make any other underwriting decision with respect to, the title insurance
policy insuring Buyer and/or its lender, and Royal is not willing to provide
such insurance, affirmative insurance and/or make the same underwriting
decision, then Buyer shall either accept the insurance, affirmative insurance
and/or underwriting decision of Liberty, and have the title written entirely
with Liberty (in which case only Liberty shall be the Title Company for all
purposes of this Agreement), or waive any objections or matters otherwise raised
by Royal, and not by Liberty, and accept such title insurance policy as Royal is
willing to provide.
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5.2 Buyer shall accept fee title to the Buildings and leasehold
title to the Ground Lease as the Title Company will insure, in accordance with
its standard form of title policy, subject only to the Permitted Encumbrances
and such other exceptions as the Title Company, without additional premium, will
omit as exceptions to coverage.
5.3 Notwithstanding anything in this Agreement to the contrary,
subject to the provisions of Section 5.6 and Section 5.9, Seller shall not have
any obligation to incur any expense, or to take or bring any action or
Proceeding to remove any objection to title that does not constitute a Permitted
Encumbrance, nor shall Buyer have any right of action against the Seller, at law
or in equity, for Seller's inability to convey title to the Premises subject
only to the Permitted Encumbrances.
5.4 If Buyer does not notify Seller of any Title Objections by the
Title Objection Notification Date or, with respect to any new Title Objection
based on a Title Update, within the earlier of seven (7) Business Days of
Buyer's receipt of the Title Update or the Closing Date, Buyer shall be deemed
to have waived such objection and shall be obligated to purchase the Acquisition
Assets and fulfill its other obligations under this Agreement (subject to all of
the other conditions to such obligations contained in this Agreement), subject
to such objections and without abatement of the Purchase Price, credit or
allowance of any kind or any claim or right of action against Seller for Damages
or otherwise in respect of such waived title objection. Any lien, encumbrance or
exception to title which is not a Permitted Encumbrance to which Buyer timely
objects by notice to Seller is referred to herein as a "TITLE OBJECTION".
5.5 If Seller is unable to convey title in accordance with this
Agreement by the Scheduled Closing Date, then Seller shall be entitled to one
(1) or more adjournments of the Scheduled Closing Date for a period not to
extend beyond December 1, 2005 (the "OUTSIDE CLOSING DATE"), time being of the
essence, in the aggregate (including any other extension by Seller under this
Agreement), and the Scheduled Closing Date shall be adjourned to a Business Day
specified by Seller not less than three (3) Business Days after the date of
Seller's notice, not beyond the Outside Closing Date, time being of the essence.
However, if Buyer exercises its right to extend the Scheduled Closing Date
pursuant to Section 11.2, the Outside Closing Date shall be extended to December
24, 2005, time being of the essence. If, on the Outside Closing Date, Seller
shall still be unable to convey title to the Premises in accordance with this
Agreement, then Seller's sole obligation shall be to (i) cause the Escrow Agent
to return the Letter of Credit to Buyer, and (ii) refund Buyer's cost of
examination of title without insurance and the cost of survey, not to exceed the
aggregate of One Thousand Dollars ($1,000.00), whereupon this Agreement shall
terminate and neither party shall have any further rights or claims against the
other, except for those obligations which expressly survive termination of this
Agreement.
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5.6 In the event the cost to cure all Title Objections is Three
Hundred Fifty Thousand Dollars ($350,000.00) or less in the aggregate, then
Seller shall be required to expend sums up to said amount to cure said Title
Objections. Seller shall not be required to spend more than Three Hundred Fifty
Thousand Dollars ($350,000.00), in the aggregate, to cure Title Objections. In
the event the cost to cure Title Objections shall exceed the aforesaid sum,
Seller may either (i) expend additional sums required to cure said Title
Objections in Seller's sole discretion, in which event, Buyer shall be obligated
to purchase the Acquisition Assets and fulfill its obligations under this
Agreement (subject to all of the other conditions to such obligations contained
in this Agreement), without abatement of the Purchase Price, or (ii) terminate
this Agreement, provided that, in the event Seller elects to terminate this
Agreement pursuant to clause (ii), Buyer shall have the right to accept title to
the Premises subject to such Title Objections without any claim or right of
action against Seller by reason thereof and receive a credit in the amount
required to cure said Title Objections up to a maximum of Three Hundred Fifty
Thousand Dollars ($350,000.00) against the Purchase Price, less the amount of
any sums theretofore spent by Seller which eliminated a matter in question as a
Title Objection (and Seller shall provide reasonable evidence of such
expenditure to Buyer). Such right shall be exercised by Buyer by delivery of
written notice thereof to Seller within five (5) Business Days after Seller's
election to terminate this Agreement (time being of the essence with respect to
the delivery of such notice by Buyer within such five (5) Business Day period),
in which case this Agreement shall not be terminated and shall remain in full
force and effect upon all of the terms and conditions hereof, and if the
Scheduled Closing Date shall have passed, then the Scheduled Closing Date shall
be deemed to be the date that is five (5) Business Days after the delivery of
such notice by Buyer to Seller (time being of the essence with respect thereto).
If Buyer shall fail to deliver such written notice to Seller within such five
(5) Business Day period, then Buyer shall be deemed to have irrevocably waived
its right to do so and this Agreement shall be deemed terminated as aforesaid.
5.7 Notwithstanding the provisions of Section 5.5 to the contrary,
Buyer may, by notifying Seller at any time prior to the earlier of the Scheduled
Closing Date and the Outside Closing Date referred to in Section 5.5, elect to
accept such title as Seller can convey. In such event, such Encumbrance that
Seller was unable to discharge or otherwise remove shall be deemed to be a
Permitted Encumbrance and this Agreement shall remain in effect and the parties
shall proceed to Closing and Buyer shall remain obligated to purchase the
Acquisition Assets for the full Purchase Price without any abatement, credit or
allowance of any kind or any claim or right of action against Seller for Damages
or otherwise for such Encumbrance.
5.8 At Closing, Buyer shall purchase an owner's policy of title
insurance from the Title Company insuring Buyer's leasehold interest in the
Ground Lease in an amount not less than the Purchase Price. Buyer and Seller
shall cooperate with the Title Company in connection with obtaining title
insurance insuring title to the Premises subject only to the Permitted
Encumbrances. In furtherance and not in limitation of the foregoing, at or prior
to the Closing, Buyer and Seller shall deliver to the Title Company such
affidavits, certificates and other instruments as are reasonably requested by
such title company and customarily furnished in connection with the issuance of
owner's policies of title insurance.
5.9 Notwithstanding anything hereinabove set forth, Seller shall be
required to cure any title exceptions voluntarily placed on the Premises by
Seller or voluntarily allowed by Seller to be placed on the Premises after the
date hereof (without limitation as to the cost of such cure) and to cause any
mortgages to be released of record from the Premises.
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6. LETTER OF CREDIT.
6.1 Within one (1) Business Day of the execution and delivery of
this Agreement by Buyer and Seller, and as an express condition precedent to the
effectiveness of this Agreement, Buyer shall deliver to Escrow Agent, as
security for the performance of Buyer's obligations under this Agreement, an
unconditional, irrevocable letter of credit in the amount of $24,000,000.00
naming Escrow Agent as the sole beneficiary in the form of Schedule 6.1 hereof
(the "LETTER OF CREDIT"). The Letter of Credit shall be a so-called "evergreen"
letter of credit and provide for an initial expiration date of December 31, 2005
and shall be automatically self-renewing for one additional six-month period
thereafter. The Letter of Credit shall expressly provide that the issuing bank
may not elect to not renew the Letter of Credit upon the then scheduled
expiration date thereof without providing Seller and Escrow Agent at least 30
days prior written notice thereof. If Seller or Escrow Agent are notified that
the Letter of Credit will not be renewed by the issuing bank upon the then
scheduled expiration date thereof, or the Letter of Credit is not renewed at
least 30 days prior to the then scheduled expiration thereof, Escrow Agent may
draw upon the Letter of Credit and hold the proceeds thereof as security for the
performance of Buyer's obligations under this Agreement. The Letter of Credit
shall be held by Escrow Agent in accordance with the provisions of Article 17 of
this Agreement. Provided that either (a) the Closing occurs as herein provided
and Buyer pays the full Purchase Price to Seller or (b) as otherwise provided in
Section 28.1, Seller shall instruct Escrow Agent to return the Letter of Credit
to Buyer and Escrow Agent shall return the Letter of Credit to Buyer
simultaneously and as a condition concurrent with the Closing and payment of the
Purchase Price.
6.2 Notwithstanding anything to the contrary contained in this
Agreement, Buyer shall have the right, at any time and from time to time prior
to the Closing, to provide to Seller, in lieu of the Letter of Credit, a cash
deposit or a substitute letter of credit satisfying all of the terms and
conditions of Section 6.1, in an amount equal to the face amount of the Letter
of Credit, subject to the same terms and conditions as apply to the Letter of
Credit, in which case the Letter of Credit shall be returned to Buyer upon
actual receipt by Escrow Agent of such cash deposit or substitute letter of
credit.
7. ACCESS.
7.1 Buyer acknowledges having conducted a thorough inspection and
evaluation of the Buildings, Personal Property, Inventory, Contracts, Leases,
Subleases, Licenses, Ground Lease, books and records and other documents and
data relating to the Premises and the Acquisition Assets, and that Buyer has
completed and/or waived any further due diligence with respect to this
transaction.
7.2 During the pendency of this Agreement, subject to the terms and
conditions set forth in this Article 7, Buyer shall have access to the Premises
in order to conduct studies, inspections and reviews pertaining to the
Acquisition Assets and to market available space to prospective tenants as
provided in Section 10.8. During the pendency of this Agreement, Buyer shall not
(1) contact or have any discussions with any tenants, subtenants, licensees of,
or contractors providing services to the Premises, unless, in each case, Buyer
obtains the prior consent of Seller, not to be unreasonably withheld,
conditioned or delayed, (2) interfere with the business of Seller, (3) disturb
the tenants, subtenants or licensees of the Premises, (4) disrupt the operations
of the Premises or (5) damage any of the Acquisition Assets. Seller may, from
time to time, establish reasonable rules of conduct for Buyer and its
Representatives. Buyer shall schedule and coordinate all inspections with
Seller, which may only occur on a Business Day, and shall give Seller at least
twenty-four (24) hours prior telephone notice thereof to Daniel Gohari at (212)
808-4000, extension 232 or Kevin Collins at (212) 279-9000, extension 211.
Seller shall be entitled to have a Representative present at all times during
each entry by Buyer. Buyer shall not be permitted to conduct any boring on the
Land without the prior consent of Seller. If Buyer's Representatives alter or
damage any of the Acquisition Assets, Buyer shall promptly restore such altered
or damaged Acquisition Asset to its state prior to such alteration or damage, or
shall pay to Seller, on demand, the cost of repairing and restoring any damage
or disturbance that Buyer causes to any of the Acquisition Assets. In addition,
Buyer shall have the right, subject to the provisions of Section 12.6, to
contact Nassau County, as landlord under the Ground Lease, to discuss Nassau
County's consent to the assignment of the Ground Lease by Seller to Buyer as
herein contemplated and the severance of the Ground Lease as contemplated under
Section 12.6.
8
7.3 Prior to any entry onto the Premises by any independent
contractor employed by Buyer for the purpose of performing any intrusive
inspection of the Acquisition Assets, Buyer shall deliver evidence reasonably
satisfactory to Seller that such independent contractor has general liability
insurance, with coverages in the amounts set forth below, and workers
compensation insurance as required by applicable law, insuring such independent
contractor and its employees against loss, liability, personal injury, death or
property damage arising or occurring upon or in connection with the presence or
activities of such independent contractor while on the Premises. Seller reserves
the right, where commercially reasonable, to require that such independent
contractor name Buyer as an additional insured on its general liability
insurance policy or to require that such policy provide coverage for the
contract between such independent contractor and Buyer with respect to such
independent contractor's activities at the Premises. Unless otherwise approved
by Seller, which approval shall not be unreasonably withheld, such general
liability insurance policy shall have a combined single limit coverage for
property damage of at least $1,000,000 for each occurrence and in the aggregate
and for personal injury or death of at least $3,000,000 for each occurrence and
in the aggregate.
7.4 Intentionally omitted.
7.5 During the pendency of this Agreement, Buyer may approach the
employees of Seller's managing agent (but not any employees of Seller or any of
its Affiliates), at the Building management office, for the purpose of offering
any such employee, any employment opportunity with Buyer or any of its
Affiliates, provided it will not interfere with the normal and customary
operations of the Buildings.
7.6 Buyer agrees that Seller shall have the right to obtain
injunctive relief to enforce the provisions of this Article 7, and that
obtaining such injunctive relief shall not bar Seller's right to seek Damages
for Buyer's Breach of the provisions of this Article 7.
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7.7 Buyer acknowledges that it has not been induced by, and has not
relied upon, any written or oral representations, warranties or statements,
whether express or implied, of Seller, or any partner, member, stockholder or
Representative (direct or indirect) of Seller, relating to the Acquisition
Assets, the Premises, the operations or any forecast of operations of the
Premises, except for those expressly set forth in this Agreement. Buyer's
obligations under this Agreement shall not be subject to any contingencies,
diligence or conditions, except for those expressly set forth in this Agreement.
Buyer acknowledges and agrees that, except as expressly set forth in this
Agreement, Seller makes no representations or warranties whatsoever, whether
express or implied or arising by operation of law, regarding the Acquisition
Assets, their condition or state of repair, the financial condition of the
Premises or the Premises' operations or ability to be developed. Buyer agrees
that the Acquisition Assets will be sold and conveyed to (and accepted by) Buyer
at the Closing in the current existing condition of the Acquisition Assets, AS
IS, WHERE IS, WITH ALL FAULTS, except as otherwise expressly provided in this
Agreement and excepting ordinary wear and tear, ongoing maintenance and capital
repairs and replacements.
7.8 The provisions of this Article 7 shall survive the termination
of this Agreement.
8. CONFIDENTIALITY. Neither of the parties nor their respective
Representatives shall, without the prior Consent of the other party, disclose or
use any Confidential Information, in whole or in part, except in connection with
the review, evaluation or performance of the transactions described in this
Agreement. Unless otherwise required by any applicable Legal Requirement,
neither of the parties shall disclose any Confidential Information acquired as a
result of this Agreement to any Person, other than its respective counsel and
other Representatives, and such other Persons (such as prospective bankers and
lessors) with whom it must communicate to consummate the transactions described
in this Agreement, all of whom must agree to keep the Confidential Information
confidential. If the Closing does not occur, each party will destroy or return
to the disclosing party all copies of documents that contain that party's
Confidential Information.
9. EXISTING MORTGAGE. At Seller's election, Seller shall have the right
to cause the present holder of the leasehold mortgage encumbering the Premises
(the "EXISTING MORTGAGE") to assign the Existing Mortgage to Seller's designee
and remain as a lien encumbering Seller's or its designee's interest in the
Development Parcel (but not any other portion of the Premises), which lien shall
be subordinate by instrument of subordination reasonably satisfactory to such
designee and Buyer, to the Buyer Loan as provided in Section 12.7. If Seller
elects to have the Existing Mortgage assigned to Seller's designee and remain as
a lien encumbering Seller's or its designee's interest in the Development Parcel
as aforesaid, then Seller shall cause the balance of the Premises to be released
from the lien of the Existing Mortgage by instrument in recordable form and
otherwise reasonably satisfactory to Buyer and the Title Company, and delivery
of such instrument of partial release of mortgage and such other customary
affidavits as the Title Company shall reasonably require in connection therewith
shall be deemed to satisfy Seller's obligation to satisfy any mortgages as
provided in Section 5.9.
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10. LEASES AND SUBLEASES.
10.1 At the Closing, Seller will deliver to Buyer an Assignment and
Assumption of Master Lease Agreement (Landlord's Interest) in the form annexed
hereto as Schedule 10.1 and made a part hereof (the "ASSIGNMENT AND ASSUMPTION
OF MASTER LEASE AGREEMENT (LANDLORD'S INTEREST)"), pursuant to which the
landlord's interest under that certain Lease, dated July 8, 1983, originally
executed by Coliseum Towers Associates, L.P., as landlord, and European American
Bancorp, as tenant, (as amended, the "MASTER LEASE"), shall be assigned by
Seller to Buyer and the obligations accruing thereunder from and after the
Closing Date shall be assumed by the assignee.
10.2 At the Closing, Seller will deliver to Buyer's designee an
Assignment and Assumption of Master Lease (Tenant's Interest) in the form
annexed hereto as Schedule 10.2, and made a part hereof (the "ASSIGNMENT AND
ASSUMPTION OF MASTER LEASE AGREEMENT ("TENANT'S INTEREST)") pursuant to which
the tenant's interest under the Master Lease shall be assigned by Seller to
Buyer's designee and all of the obligations thereunder shall be assumed by the
assignee.
10.3 At the Closing, Seller will deliver to Buyer an Assignment and
Assumption of Leases Agreement in the form annexed hereto as Schedule 10.3 and
made a part hereof (the "ASSIGNMENT AND ASSUMPTION OF LEASES Agreement"),
pursuant to which the Leases shall be assigned to Buyer and the obligations
accruing thereunder from and after the Closing Date shall be assumed by Buyer.
10.4 At the Closing, Seller will deliver to Buyer an Assignment and
Assumption of Subleases Agreement in the form annexed hereto as Schedule 10.4
and made a part hereof (the "ASSIGNMENT AND ASSUMPTION OF SUBLEASES Agreement"),
pursuant to which the Subleases shall be assigned by Seller to Buyer's designee
and the obligations accruing thereunder from and after the Closing Date shall be
assumed by the assignee.
10.5 Seller will promptly request that all tenants execute an
estoppel certificate in the form annexed hereto as Schedule 10.5. Seller will
use commercially reasonable efforts to obtain such documents executed by the
tenants, but shall not be obligated to expend any funds or assume any liability
in connection therewith. Seller shall deliver to Buyer a draft copy of each
estoppel certificate that Seller proposes to send to each tenant for Buyer's
review, and Buyer shall deliver any comments that it may have to any such draft
estoppel certificate within two (2) Business Days after delivery thereof to
Buyer, time being of the essence. Seller shall consider Buyer's comments in good
faith but shall have no obligation to make any changes requested by Buyer.
Seller shall not deliver any estoppel certificate to any tenant for execution
prior to the Effective Date. Buyer's obligation to close hereunder is
conditioned upon the receipt of executed estoppel certificates (subject to the
qualifications in this Section 10.5) from tenants and subtenants leasing or
subleasing 806,600 rentable square feet in the aggregate, which in all events
shall include (a) Citibank, N.A., (b) Dreyfus Service Corporation and (c)
Washington Mutual Inc. (collectively, the "MAJOR LEASES"). The foregoing
condition will be deemed to be satisfied with respect to any estoppel
certificate even if (i) the estoppel certificate executed by the tenant is
different from the form annexed hereto as Schedule 10.5, (ii) is qualified by
language such as "to the tenant's knowledge" for anything other than the
description of the lease or the amount of Rent or free rent or (iii) the
estoppel certificate is otherwise in substantial accordance with the form of
estoppel certificate which the tenant is obligated to provide under its lease;
provided, in each case that the estoppel certificate shall not state that the
tenant has given Seller a notice that Seller is in default under the lease or
that the tenant has any rights of set off or deduction of future rent by reason
of any Seller default which, in either such case, would have a material adverse
effect as defined in Section 15.1 hereof (the "SATISFACTORY ESTOPPEL
CONDITIONS"). Notwithstanding the foregoing, the estoppel certificates initially
to be sent to Dreyfus Service Corporation, Rivkin Radler and Open Link will be
prepared by Buyer based on the form annexed hereto as Schedule 10.5, together
with references to those items set forth on Schedule 10.5-1. However, Buyer
acknowledges that the receipt of an estoppel certificate from any or all of
Dreyfus Services Corporation, Rivkin Radler or Open Link which meets the
Satisfactory Estoppel Conditions will be deemed to be a satisfactory estoppel
for purposes of this Section 10.5. Buyer will not be permitted to reject an
estoppel certificate from Dreyfus Service Corporation which includes a
disclosure or other statement thereon relating to any alleged delay in such
tenant's ability to occupy its leased premises or any objection by such tenant
to Seller's claim for holdover rent with respect to any space formerly occupied
by such tenant without specifying an amount or with an amount not to exceed the
amount described in Schedule 10.5-1. If Seller is unable to deliver tenant
estoppel certificates satisfying the conditions of this Section 10.5 by the
Scheduled Closing Date, then Seller shall be entitled to one (1) or more
adjournments of the Scheduled Closing Date for a period not to extend beyond the
Outside Closing Date, time being of the essence, in the aggregate (including any
other extension by Seller in this Agreement), and the Scheduled Closing Date
shall be adjourned to a date specified by Seller not less than three (3)
Business Days after the date of Seller's notice, not beyond the Outside Closing
Date, time being of the essence.
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10.6 If any Building space is vacant on the Closing Date, Buyer
shall accept the Premises subject to such vacancy.
10.7 Seller does not warrant that any particular Lease or Sublease
will be in force or effect at the Closing or that the tenants will have
performed their obligations after the date hereof thereunder. The termination of
any Lease or Sublease from and after the date hereof and prior to Closing (which
shall only occur due to tenant's default or as otherwise consented to by Buyer)
shall not affect the obligations of Buyer under this Agreement in any manner or
entitle Buyer to any offset, abatement, credit or allowance of any kind against
the Purchase Price or give rise to any other claim on the part of Buyer.
10.8 Seller shall not enter into new Leases or Subleases (including,
without limitation, Leases or Subleases to (x) Institute for Allied Medical
Professions, (y) Park Place Mortgage a/k/a Robert Amo Mortgage Group or (z)
Jadis Concierge Service or Jadis Capital Management) or amend, modify, extend or
renew any existing Leases or Subleases without the prior written consent of
Buyer (which consent shall not be unreasonably withheld, conditioned or
delayed). Buyer shall have the right to request that Seller enter into new
Leases or Subleases or amend, modify, extend or renew any existing Leases or
Subleases, subject to Seller's prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed), and Buyer shall have access to
the Premises as provided in Section 7.2 in order to market available space to
prospective tenants. Notwithstanding the foregoing, Seller shall have the right,
without Buyer's consent, to enter into new Leases or Subleases or extend or
renew any existing Leases or Subleases that are required pursuant to the terms
of any existing Lease or Sublease or pursuant to the terms of any new Lease or
Sublease entered into in accordance with the provisions hereof or pursuant to
the terms of any applicable law, or that are entered into to effectuate or
memorialize the exercise of any right or option contained in any existing Lease
or Sublease or any new Lease or Sublease entered into in accordance with the
provisions hereof. If required, Buyer's and Seller's consent shall be deemed
granted if not denied by notice (stating the grounds for denial with reasonable
specificity) given to the other party within ten (10) Business Days after
request for such consent by the requesting party.
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10.9 Notwithstanding anything to the contrary contained in this
Agreement, if (a) during the pendency of this Agreement, Buyer requests that
Seller enter into any Lease or Sublease as provided in Section 10.8 above with
any Person listed on Schedule 10.9 attached hereto and made a part hereof (or
any Affiliate of any such Person) or (b) during the period commencing on the
Effective Date and ending on the date that is 120 days (and solely with respect
to Citigroup, for such additional period, not to exceed 240 days, as any leasing
transaction currently under negotiation is being actively negotiated) following
the Effective Date (inclusive), Buyer enters into or causes Seller to enter into
any Lease or Sublease with any Person listed on Schedule 10.9 attached hereto
and made a part hereof (or any Affiliate of any such Person), then in each such
case Buyer shall be solely responsible to pay to Cushman & Wakefield Inc.
("C&W") a commission calculated as provided in the existing Leasing and
Management Agreement with C&W. The provisions of this Section 10.9 shall survive
the Closing or termination of this Agreement.
10.10 Seller and Buyer acknowledge that, concurrently with the
mutual execution and delivery of this Agreement, Seller is terminating (except
as otherwise specifically contemplated hereby) C&W's right to receive any
leasing commissions pursuant to the existing Leasing and Management Agreement
with C&W, and shall deliver to Buyer a letter from C&W confirming same.
11. CLOSING DATE.
11.1 The closing (the "CLOSING") of the transactions contemplated
hereunder shall occur on October 7, 2005 (such date, or the date Seller or Buyer
sets for the Closing if Seller or Buyer shall elect to extend this date pursuant
to the terms of this Agreement is hereinafter referred to as the "SCHEDULED
CLOSING DATE"; the actual date of the Closing is hereinafter referred to as the
"CLOSING DATE"), at the offices of Seller's attorneys, Fried, Frank, Harris,
Shriver & Jacobson LLP, One New York Plaza, New York, New York 10004. TIME SHALL
BE OF THE ESSENCE with respect to Buyer's obligation to effectuate the Closing
on the Scheduled Closing Date.
11.2 Buyer shall have the one-time right to deliver a written notice
to Seller (an "EXTENSION NOTICE") not less than three (3) Business Days prior to
the Scheduled Closing Date, setting forth Buyer's election to postpone the
Scheduled Closing Date to November 9, 2005, in which case the Purchase Price
shall be increased by Five Hundred Thousand Dollars ($500,000).
11.3 Buyer shall have the right to deliver a written notice to
Seller (an "ACCELERATION NOTICE") not later than September 1, 2005 setting forth
Buyer's election to accelerate the Scheduled Closing Date to September 9, 2005,
in which case the Purchase Price shall be decreased by Five Hundred Thousand
Dollars ($500,000.00). In the event that Seller is (a) unable to deliver the
Ground Lease Estoppel (as described in Section 12.2) after making good faith
efforts to obtain same in a timely manner, (b) unable to deliver the estoppel
certificates referred to in Section 10.5, after making good faith efforts to
obtain same in a timely manner, or (c) unable to convey title in accordance with
Section 5.5, then the Closing Date will not be accelerated, the Acceleration
Notice will be deemed not to have been delivered, the Purchase Price will not be
reduced and the Closing shall occur pursuant to Section 11.1 and Section 11.2
and Seller shall have the right to adjourn the Closing pursuant to the
provisions of this Agreement.
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11.4 For the purpose of complying with any information reporting
requirements or other rules and regulations of the IRS that are or may become
applicable as a result of or in connection with the transactions described in
this Agreement, Seller and Buyer hereby designate and appoint the Title Company
to act as the Reporting Person.
12. GROUND LEASE PROVISIONS; BUYER LOAN.
12.1 Buyer and Seller, each at their own cost and expense, shall
cooperate with one another and Nassau County in connection with obtaining an
assignment and assumption of the Ground Lease (as described in Section 12.2),
the Ground Lease Estoppel, and the Bifurcation (as described in Section
12.6(a)), by, among other things, providing all information reasonably required
by Nassau County (including, without limitation, information concerning Seller
and concerning Buyer, its respective principals and lenders) reasonably
necessary to effectuate the transaction contemplated hereby, and signing and
providing all documents required in connection therewith, provided same does not
negatively impact Buyer's rights or increase Buyer's obligations hereunder or
under the Ground Lease. Seller and Buyer each agree to keep the other apprised
of the status of progress with Nassau County in obtaining consent to such
assignment and assumption of the Ground Lease, the Ground Lease Estoppel and the
Bifurcation. Seller and Buyer each acknowledge and agree that obtaining the
Bifurcation is not a condition to the Closing.
12.2 The obligations of Buyer under this Agreement are conditioned
on the delivery by Seller of an estoppel certificate from Nassau County (in
substantially the form required to be provided under the Ground Lease) and of
either:
(a) an Assignment and Assumption of Ground Lease With Consent
substantially in the form annexed hereto and made a part hereof as Schedule
12.2(a) (the "ASSIGNMENT AND ASSUMPTION OF GROUND LEASE WITH CONSENT"); or
(b) an Assignment and Assumption of Ground Lease Without Consent
substantially in the form annexed hereto and made a part hereof as Schedule
12.2(b)(1) (the "ASSIGNMENT AND ASSUMPTION OF GROUND LEASE WITHOUT CONSENT"),
together with a Guaranty of Ground Lease substantially in the form annexed
hereto and made a part hereof as Schedule 12.2(b)(2) (the "GUARANTY OF GROUND
LEASE").
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12.3 Seller and Buyer shall promptly and diligently pursue the
Assignment and Assumption of Ground Lease With Consent and the Bifurcation in
good faith; however, Seller and Buyer each acknowledge and agree that obtaining
the Assignment and Assumption of Ground Lease With Consent is not a condition to
the Closing. As a condition to the delivery of the Assignment and Assumption of
Ground Lease With Consent, Seller may require documentation from Nassau County
reasonably acceptable to Seller providing that Seller is thereupon released from
any liability under the Ground Lease from and after the Closing Date.
12.4 In the event Seller delivers the Assignment and Assumption of
Ground Lease Without Consent, Buyer, or its Affiliate acceptable to Seller,
shall be required to contemporaneously deliver to Seller an indemnification in
the form annexed hereto and made a part hereof as Schedule 12.4 (the
"INDEMNIFICATION AS TO GUARANTY OF GROUND LEASE"), indemnifying Seller from any
obligations with respect to said Guaranty of Ground Lease. Even assuming,
arguendo, that Seller elects to pursue the Assignment and Assumption of Ground
Lease With Consent, provided that Seller delivers the Assignment and Assumption
of Ground Lease Without Consent in accordance with the terms hereof, Buyer shall
have no right to refuse to close or delay the Closing by reason of the fact that
Nassau County has not issued its consent to the assignment and assumption of the
Ground Lease.
12.5 In the event the closing takes place without the consent of
Nassau County to the assignment of the Ground Lease, the parties agree to pursue
such consent in good faith after the Closing, and upon receipt of such consent
the parties will take all reasonable steps to require Nassau County to terminate
the Guaranty of Ground Lease, and upon such termination, Seller shall also
terminate the Indemnification as to Guaranty of Ground Lease. The provisions of
this Section 12.5 shall survive the Closing.
12.6 (a) Subject to the provisions of Section 12.6(b), Seller and
Buyer each expressly acknowledge that Seller's interest in the Development
Parcel is not intended to be sold to Buyer hereunder or otherwise constitute any
portion of the Acquisition Assets. Accordingly, Seller and Buyer shall each
exercise commercially reasonable efforts, and otherwise reasonably cooperate
with each other, to cause Nassau County and any other applicable Governmental
Body to Consent to the "bifurcation" of the Ground Lease into two separate
leases, one covering the Development Parcel, on the one hand, and one covering
the balance of the Land on the other hand, allocating the "Base Rent" and all
additional rent payable thereunder 22% to the Development Parcel and 78% to the
balance of the Land and otherwise on terms and conditions substantially the same
as the Ground Lease and otherwise reasonably satisfactory to both Buyer and
Seller (collectively, the "BIFURCATION"). If Nassau County or any other
applicable Governmental Body shall not Consent to the Bifurcation as provided in
this Section 12.6(a) and Buyer shall not purchase the Development Parcel in
accordance with Section 12.6(b), then Buyer, as sublessor, and Seller or
Seller's designee, as sublessee, shall execute and deliver at the Closing a
sublease covering the Development Parcel in the form attached hereto as Schedule
12.6(a) (the "DEVELOPMENT PARCEL SUBLEASE").
(b) Buyer shall have the right, exercisable at any time during
the period commencing on the Effective Date and ending on the earlier to occur
of (i) the date that is ninety (90) days from the date hereof or (ii) five (5)
days prior to the Scheduled Closing Date (the "DEVELOPMENT PARCEL ELECTION
DATE") (time being of the essence), by delivery of written notice to Seller (the
"DEVELOPMENT PARCEL PURCHASE NOTICE"), to elect to purchase the Development
Parcel from Seller for a price equal to Sixteen Million and No/100 Dollars
($16,000,000.00) ("DEVELOPMENT PARCEL PRICE"). If Buyer shall timely deliver the
Development Parcel Purchase Notice and elect to purchase the Development Parcel,
then (i) the Purchase Price shall be increased by the Development Parcel Price,
(ii) the Development Parcel shall be deemed part of the Acquisition Assets and
all applicable terms and provisions of this Agreement shall be deemed to apply
to and include the Development Parcel, including, without limitation, the
representation and warranties set forth in this Agreement and the obligation to
purchase and sell the Development Parcel on the Scheduled Closing Date, (iii)
Buyer shall reimburse Seller at Closing for a brokerage commission of one
percent (1%) of the Development Parcel Price and (iv) the provisions of Section
12.6(a) shall be of no further force or effect and neither party shall have any
further obligation thereunder. If Buyer shall fail to timely deliver the
Development Parcel Purchase Notice by the Development Parcel Election Date, then
Buyer shall be deemed to have irrevocably waived its right to purchase the
Development Parcel.
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(c) If Buyer purchases the Development Parcel as provided in
Section 12.6(b), then, in lieu of delivering the Pledge Agreement, Seller shall
deliver to Escrowee (as defined below) at the Closing of the purchase and sale
of the Development Parcel either (a) cash or (b) a so-called "evergreen",
unconditional, irrevocable letter of credit, naming Escrowee as the sole
beneficiary and providing for an initial expiration date that is the six
(6)-month anniversary of the date hereof, such cash or letter of credit being an
amount equal to the lesser of (x) if the Survival Period (as defined in Section
21.24(d)) has theretofore expired, the amount claimed to be owed by Seller to
Buyer for any obligations pursuant to a notice of claim and institution of a
proceeding made within the fixed periods set forth in Section 21.24(d), and (y)
Four Million Dollars ($4,000,000.00). Such cash or letter of credit shall be
held by Schulte Roth & Zabel LLP, counsel to Buyer, acting as escrow agent
pursuant to a written escrow agreement, in form and substance and containing
terms and conditions reasonably satisfactory to Buyer, Seller and such escrow
agent (in such capacity and acting pursuant to such terms and conditions,
"ESCROWEE") as security for the same obligations, and on the same terms and
conditions, as are set forth in this Agreement with regard to the Pledge
Agreement, except that terms and provisions satisfactory to Buyer and Seller, in
their reasonable discretion, shall be substituted for the provisions hereof that
are no longer applicable by reason of such change in the nature of such
collateral. Among other things, if such substitute collateral is a letter of
credit, such provisions shall include the above requirements and also shall
include the requirement that the letter of credit expressly provide that (a) it
shall be automatically self-renewing for successive six (6) month periods after
its initial expiration date, (b) the issuing bank may not elect to not renew the
letter of credit without providing Buyer at least thirty (30) days prior written
notice thereof and if Buyer is notified that the letter of credit will not be
renewed upon the then scheduled expiration date thereof, or if the letter of
credit is not renewed at least thirty (30) days prior to the then scheduled
expiration date thereof, Buyer may draw upon the letter of credit and hold the
proceeds thereof as security for the obligations secured thereby. In the event
that Buyer has given no notice of claim pursuant to Section 21.24(d) on the date
of expiration of the Survival Period (with time being of the essence), such
Letter of Credit shall be automatically returned to Seller.
12.7 (a) At the Closing, Buyer or an Affiliate or other designee or
nominee of Buyer (collectively, the "LENDER") shall make a loan to Seller as the
sublessee under the Development Parcel Sublease in the amount of Ten Million and
00/100 Dollars ($10,000,000.00) (the "BUYER LOAN"), which Buyer Loan shall be
evidenced by a promissory note substantially in the form of Schedule 12.7A
attached hereto and made a part hereof (the "BUYER LOAN NOTE") and secured by a
leasehold mortgage substantially in the form of Schedule 12.7B attached hereto
and made a part hereof (the "BUYER LOAN MORTGAGE"). Lender shall be responsible
to pay all costs and expenses incurred by Lender in connection with the Buyer
Loan, including, without limitation, title insurance premiums, diligence costs
and all other costs and expenses associated with the Buyer Loan, except that
Seller shall be responsible to pay all mortgage recording taxes. Notwithstanding
the foregoing, in the event that Buyer purchases the Development Parcel pursuant
to Section 12.6(b), there will be no Buyer Loan.
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(b) At the Closing, Reckson Construction & Development LLC, an
Affiliate of Buyer (the "DEVELOPER"), and Seller shall enter into a Development
Agreement substantially in form of Schedule 12.7C attached hereto and made a
part hereof, whereby Seller agrees to pay to Developer the sum of $2,000,000 in
twenty-four (24) equal monthly installments commencing on the Closing Date.
Notwithstanding the foregoing, in the event that Buyer purchases the Development
Parcel pursuant to Section 12.6(b), there will be no Development Agreement.
13. CLOSING DOCUMENTS.
13.1 Seller shall deliver to Buyer (duly executed where appropriate)
at the Closing:
(a) a Bill of Sale, assigning and conveying all of Seller's
right, title and interest in and to the tangible Personal Property, in the form
attached hereto and made a part hereof as Schedule 13.1(a);
(b) (i) the Assignment and Assumption of Ground Lease With
Consent or (ii) the Assignment and Assumption of Ground Lease Without Consent
and the Guaranty of Ground Lease;
(c) (i) the Assignment and Assumption of Master Lease Agreement
(Landlord's Interest) and (ii) the Assignment and Assumption of Master Lease
Agreement (Tenant's Interest);
(d) the Assignment and Assumption of Leases Agreement;
(e) the Assignment and Assumption of Subleases Agreement;
(f) the Assignment and Assumption of Assumed Contracts
substantially in the form attached hereto and made a part hereof as Schedule
13.1(f) (the "ASSIGNMENT AND ASSUMPTION OF CONTRACTS");
(g) if the title examination discloses judgments, bankruptcies
or other returns against other Persons having names the same as or similar to
Seller, Seller shall deliver an affidavit showing that such judgments,
bankruptcies and other returns are not against Seller;
17
(h) An affidavit of Seller that Seller is not a "foreign person"
within the meaning of the Internal Revenue Code of 1986, as amended. Based
thereon, no portion of the Purchase Price shall be withheld by Buyer pursuant to
the Internal Revenue Code;
(i) an original letter, executed by Seller, or its agent,
advising the tenants under the Leases of the sale of the Premises to Buyer, and
directing that all Rents and other payments under the Leases thereafter be sent
to Buyer, or as Buyer may direct, substantially in the form attached hereto as
Schedule 13.1(i) and notify such tenants as to the transfer of their security
deposits;
(j) an original letter, executed by Seller, or its agent,
advising the subtenants under the Subleases of the sale of the Premises to
Buyer, and directing that all Rents and other payments under the Subleases
thereafter be sent as Buyer may direct, substantially in the form attached
hereto as Schedule 13.1(j) and notify such tenants as to the transfer of their
security deposits;
(k) estoppel certificate from Nassau County (in substantially
the form required to be provided under the Ground Lease);
(l) certified copy of the authorization of Seller's sole member
approving the transactions described in this Agreement and other evidence
reasonably requested by the Title Company of Seller's authorization of the
transactions contemplated by this Agreement;
(m) all estoppel certificates received by Seller under Section
10.5;
(n) any other resolutions, affidavits, certificates or other
documents required by this Agreement, or reasonably requested by the Title
Company to be delivered by Seller;
(o) Seller shall deliver to Buyer the security deposits held by
Seller under the Leases and Subleases (together with accrued interest thereon,
if any, less Seller's proportionate share of administrative fees, if any) by, at
Seller's option, (i) payment of the amount thereof to Buyer, (ii) a credit to
Buyer against the Purchase Price and/or (iii) assignment to Buyer of the bank
accounts (or other security) in which same are held, which assignment shall be
in form reasonably acceptable to the depositary bank and Buyer. Any such
tenants' security deposits in form other than cash shall be transferred to Buyer
by way of appropriate instruments of transfer or assignment (to the extent
assignable without the consent of the issuer) (each such instrument, an
"ASSIGNMENT AND ASSUMPTION OF SECURITY DEPOSITS"). Any fees imposed by such
issuing banks in connection with such assignments shall be paid by Buyer. In the
case of any letters of credit which by their terms are not assignable, Buyer
shall be responsible for obtaining replacement letters of credit after closing,
but Seller shall cooperate (at Buyer's expense) with Buyer in all reasonable
respects in connection therewith. As to any such non-assignable letters of
credit which are not replaced, then for the period from and after Closing,
Seller shall hold such nonassignable letters of credit in escrow for the benefit
of Buyer and, upon written request by Buyer, at Buyer's expense, shall draw down
on any such letter of credit and simultaneously therewith, shall deliver the
proceeds of such draw down to Buyer. Buyer shall, and does hereby agree to
indemnify, defend and hold the Seller, its partners, officers, directors,
employees, agents, attorneys and their respective successors and assigns,
harmless from and against any and all actual claims, demands, suits,
obligations, payments, damages, losses, penalties, liabilities, costs and
expenses (including but not limited to reasonable attorneys' fees) arising out
of Seller's or Seller's agents' actions taken in response to Buyer's request
that Seller draw upon a letter of credit after the Closing, and this sentence
shall survive the Closing;
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(p) a Bargain and Sale Deed Without Covenants Against Grantor's
Acts as to the Building in the form attached hereto as Schedule 13.1(p) (the
"DEED"), together with any real estate tax forms or affidavits as are required
by law;
(q) the Closing Statement;
(r) a general assignment and assumption, to the extent
permissible by law and to the extent transferable, of all right, title and
interest of Seller in and to all general intangibles, including all warranties,
permits and utility deposits to the extent that Seller received a credit
therefor under Section 14.1 substantially in the form attached hereto and made a
part hereof as Schedule 13.1(r) (the "GENERAL ASSIGNMENT AND ASSUMPTION");
(s) a schedule of all unpaid rents and other sums and charges
under the Leases and Subleases as of the Closing Date;
(t) evidence of the delivery of a notice electing to terminate
each service contract relating to the Premises to which Seller is a party that
Buyer timely elects to direct Seller to terminate as provided in Section 21.19
as of or prior to the Closing Date or such later date as is required to meet the
notice requirements contained in such service contract;
(u) the Buyer Loan Note and the Buyer Loan Mortgage, if
applicable;
(v) the Development Parcel Sublease and a Memorandum of the
Development Parcel Sublease, in form for recording, if applicable;
(w) all of the original Ground Lease, Leases, Licenses, Assumed
Contracts, Permits and Files to the extent in Seller's possession or control;
(x) keys and/or combinations to all locks and safe deposit boxes
located in the Premises, properly tagged or identified, to the extent in
Seller's possession or control;
(y) the Pledge Agreement, if applicable;
(z) the Development Agreement, if applicable; and
(aa) any other documents required by this Agreement, or
reasonably required by the Title Company to be delivered by Seller.
Seller shall be deemed to have delivered the items set forth in clauses
(w) and (x) above if the same are left in the Building management office on the
Closing Date.
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13.2 Buyer shall deliver to Seller (duly executed where appropriate)
at the Closing:
(a) payment of the Purchase Price payable at the Closing, as
adjusted for adjustments and costs under Article 14;
(b) the full proceeds of the Buyer Loan;
(c) (i) Assignment and Assumption of the Ground Lease With
Consent or (ii) Assignment and Assumption of Ground Lease Without Consent and
Indemnification as to Guaranty of Ground Lease, as the case may be;
(d) (i) the Assignment and Assumption of Master Lease Agreement
(Landlord's Interest) and (ii) the Assignment and Assumption of Master Lease
Agreement (Tenant's Interest);
(e) Assignment and Assumption of Leases Agreement;
(f) Assignment and Assumption of Subleases Agreement;
(g) Assignment and Assumption of Contracts;
(h) certified copy of the authorization or resolution of Buyer's
governing body approving the transactions described in this Agreement and other
evidence reasonably requested by the Title Company of Buyer's authorization of
the transactions contemplated by this Agreement;
(i) the Closing Statement;
(j) Assignment and Assumption of Security Deposits;
(k) General Assignment and Assumption;
(l) the Development Parcel Sublease and memorandum thereof, if
applicable; and
(m) any other documents required by this Agreement, or
reasonably required by the Title Company to be delivered by Buyer.
14. ADJUSTMENTS AND OTHER COSTS.
14.1 A statement of prorations and other adjustments (the "CLOSING
STATEMENT") shall be prepared by Seller in conformity with the provisions of
this Agreement and delivered to Buyer two (2) Business Days prior to the
Closing. In addition to prorations and other adjustments that may otherwise be
provided for in this Agreement, the following are to be adjusted or prorated, as
the case may require, between Seller and Buyer as of 11:59 P.M. (EST) on the day
immediately preceding the Closing Date, based upon a 365-day year, and the net
amount thereof shall be added to (if such net amount is in favor of Seller) or
deducted from (if such net amount is in Buyer's favor) the balance of the
Purchase Price payable at Closing:
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(a) Real estate Taxes, payments in lieu of Taxes, water charges
and sewer rents, if any, on the basis of the fiscal period for which assessed
and gas, steam, electricity and other public utility charges. If on the Closing
Date the Tax rate shall not have been fixed, the apportionment shall be based
upon the Tax rate for the preceding year applied to the latest assessed
valuation; however, adjustment will be made when the actual Tax amount is
determined. If there are utility meters on the Premises (covering water, gas,
steam, electricity and sewage), Seller shall furnish readings thereof to a date
not more than fifteen (15) days prior to the Closing Date. Meter charges shall
be apportioned on the basis of the last reading. Upon the taking of a subsequent
actual reading, such apportionment shall be readjusted.
(b) Rental payments on the Ground Lease.
(c) Buyer shall reimburse Seller for the cost, including Taxes,
of any fuel oil at the Premises on the Closing Date.
(d) All charges and payments under all Assumed Contracts.
(e) Water, electric, telephone and all other utility and fuel
charges, fuel on hand (at cost plus sales tax), and any assignable deposits with
utility companies (to the extent possible) (utility prorations will be handled
by meter readings as of the Closing and Seller shall arrange and pay for final
billings through the Closing Date).
(f) The cost of capital improvements to the extent provided in
Section 21.14.
(g) Any other items or amounts to be prorated or apportioned
between Seller and Buyer under this Article 14.
14.2 (a) Rents paid or payable by tenants under the Leases and
Subleases consisting of base or fixed rents (collectively, "FIXED RENTS") shall
be adjusted and prorated on an if, as and when collected basis. Any Fixed Rents
collected by Buyer or Seller after the Closing from any tenant who owes Fixed
Rents for periods prior to the Closing, shall be applied (i) first, in payment
of Fixed Rents owed by such tenant for the month in which the Closing Date
occurs, (ii) second, in payment of Fixed Rents owed by such tenant for the
period (if any) after the month in which the Closing Date occurs through the end
of the month in which such amount is collected and (iii) third, after Fixed
Rents for all current periods have been paid in full, in payment of Fixed Rents
owed by such tenant for the period prior to the month in which the Closing Date
occurs. Each such amount, less any costs of collection (including reasonable
attorneys' fees) reasonably allocable thereto, shall be adjusted and prorated as
provided above, and the party who receives such amount shall promptly pay over
to the other party the portion thereof to which it is so entitled. Buyer shall
bill tenants who owe Fixed Rents for periods prior to the Closing on a monthly
basis following the Closing Date for a period of one year and shall use
commercially reasonable efforts to collect such past due Fixed Rents during such
one-year period; provided, that Buyer shall have no obligation to commence any
actions or proceedings to collect any such past due Fixed Rents. Notwithstanding
the foregoing, if Buyer shall be unable to collect such past due Fixed Rents,
Seller shall have the right to pursue tenants to collect such delinquencies
(including, without limitation, the prosecution of one or more lawsuits), but
Seller shall not be entitled to evict (by summary proceedings or otherwise) any
such tenants. No prorations shall be made at the Closing in respect of unpaid
Fixed Rents.
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(b) If any tenants are required to pay percentage rents,
escalation charges for increases in real estate taxes or operating expenses,
porter's wage increases, labor cost increases, cost-of-living increases, charges
for electricity, water, cleaning or overtime services, "sundry charges" or other
charges of a similar nature ("ADDITIONAL RENTS"), the same shall be adjusted on
an if, as and when collected basis. Subject to further provisions of this
paragraph (b), if any Additional Rents are collected by Buyer after the Closing
Date which are attributable in whole or in part to any period prior to the
Closing, then Buyer shall promptly pay to Seller its proportionate share
thereof, less a proportionate share of any reasonable attorneys' fees and costs
and expenses of collection thereof. With respect to any estimated Additional
Rents paid or payable by tenants for any period prior to the Closing which,
pursuant to the applicable Lease or Sublease, are to be recalculated after the
Closing based upon actual expenses and other relevant factors, (i) Seller
agrees, with respect to such adjustments which are in favor of any such tenant,
to pay to Buyer after which Buyer shall pay directly to the tenant in question,
within ten (10) days after written demand and presentation to Seller of
reasonable documentation in support of such adjustments, and (ii) Buyer agrees,
with respect to such adjustments which are in favor of landlord, to pay to
Seller the amount of such adjustments which the tenant pays to Buyer, within ten
(10) days after receipt thereof by Buyer. Buyer shall bill tenants who owe
Additional Rents for periods prior to the Closing on a monthly basis following
the Closing Date for a period of one year and shall use commercially reasonable
efforts to collect such past due Additional Rents during such one-year period;
provided, that Buyer shall have no obligation to commence any actions or
proceedings to collect any such past due Additional Rents. Notwithstanding the
foregoing, if Buyer shall be unable to collect such past due Additional Rents,
Seller shall have the right to pursue tenants to collect such delinquencies
(including, without limitation, the prosecution of one or more lawsuits), but
Seller shall not be entitled to evict (by summary proceedings or otherwise) any
such tenants. Any Additional Rents collected by Buyer or Seller after the
Closing from tenants who owe Additional Rents for periods prior to the Closing
shall be applied to Additional Rents then due and payable in the following order
of priority, (i) first, in payment of Additional Rents for the accounting period
in which the Closing Date occurs, with such amounts being prorated between Buyer
and Seller based upon the number of days each owned the Premises during the
accounting period in which the Closing occurs, (ii) second, in payment of
Additional Rents for any accounting period which commenced after the Closing,
but only to the extent payments of Additional Rents for such accounting period
are then currently due, and (iii) third, in payment of Additional Rents for
accounting periods preceding the accounting period in which the Closing occurs.
(c) Notwithstanding anything to the contrary contained in this
Agreement, Seller shall keep Buyer reasonably informed (including providing
copies of material pleadings, correspondence and other documentation) with
respect to any litigation commenced or pursued by Seller after the date hereof
against any tenants at the Property. Seller shall be entitled to retain all
proceeds of any reward or settlement on account of any claim by Seller against
any tenant that arose prior to the Closing Date; provided, however, that, in the
event that Seller is awarded any damages in connection with any eviction action
which results in the termination of any lease prior to the Closing Date, where
the term of such lease would otherwise have extended beyond the Closing Date,
Buyer shall be entitled to receive from the amount paid by the applicable tenant
for such award of damages an amount equal to all portions of such damages
allocable to rent payable with respect to the period after the Closing Date.
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14.3 (a) Buyer agrees that, effective as of the Closing Date, all
employees at the Premises set forth on Schedule 14.3 (and any replacements
thereof) who are union employees ("EMPLOYEES") shall be offered the same
employment by Buyer (or by the property manager or other third party to be
engaged by Buyer) on substantially the same terms and conditions as such
Employees were employed immediately prior to the Closing. Seller represents that
it has no employees. With respect to the Employees, Buyer shall comply with all
of the requirements of applicable law and be solely responsible for, and hereby
assumes all liabilities whatsoever with respect to, any and all (i) salaries
(for the period from and after the Closing Date), (ii) benefits attributable to
the period from and after the Closing Date payable to the Employees, (iii)
benefit continuation and/or severance payments relating to any Employee that may
be payable as a result of any termination of employment of any such Employee or
the terms of such employment of any Employee or the location of employment of
any Employee from and after the Closing Date, and (iv) notices, payments, fines
or assessments due to any governmental authority pursuant to any laws, rules or
regulations with respect to the employment, discharge or layoff of Employees
from and after the Closing Date, including, but not limited to, such liability
as arises under the Worker Adjustment and Retraining Notification Act, Section
4980B of the Code (COBRA) and any rules or regulations as have been issued in
connection with any of the foregoing. Buyer hereby agrees to indemnify Seller
and its affiliates against, and agrees to hold them harmless from any and all
claims, losses, damages and expenses (including, without limitation, reasonable
attorneys' fees) and other liabilities and obligations incurred or suffered as a
result of any claim by any Employee that arises under federal, state or local
statute (including, without limitation, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Age Discrimination Act of 1990, the
Equal Pay Act, the Americans with Disabilities Act of 1990, ERISA and all other
statutes regulating the terms and conditions of employment), regulation or
ordinance, under the common law or in equity (including any claims for wrongful
discharge or otherwise), or under any policy, agreement, understanding or
promise, written or oral, formal or informal, between Seller and the Employee,
arising out of actions, events or omissions that occurred (or, in the case of
omissions, failed to occur) from and after the Closing Date. Buyer represents
and covenants that it shall be covered by and assume and the Employees shall be
covered by any and all collective bargaining agreements currently covering the
Employees. Seller hereby agrees to indemnify Buyer and its affiliates against,
and agrees to hold them harmless from any and all claims, losses, damages and
expenses (including, without limitation, reasonable attorneys' fees) and other
liabilities and obligations incurred or suffered as a result of any claim by any
Employee that arises under any of the foregoing federal, state or local
statutes, regulations or ordinances, under the common law or in equity
(including any claims for wrongful discharge or otherwise), or under any policy,
agreement, understanding or promise, written or oral, formal or informal,
between Seller and the Employee, arising out of actions, events or omissions
that occurred (or, in the case of omissions, failed to occur) prior to the
Closing Date.
(b) Effective as of the Closing, Buyer shall assume, observe,
pay and perform all obligations and liabilities under, arising from or otherwise
relating to all collective bargaining agreements, if any, relating to the
Employees (or any of them) and/or Seller's operation of the Property (hereafter,
collectively, the "CBA"). Buyer shall have sole responsibility for all such
obligations and liabilities arising under or relating to the CBA, on or at any
time after the Closing Date and hereby agrees to indemnify and hold Seller
harmless from and against all loss, cost and expense incurred by Seller as a
result of Buyer's failure to so assume, observe, pay and perform the same.
Seller hereby agrees to indemnify and hold Buyer harmless from and against all
loss, cost and expense incurred by Buyer as a result of Seller's failure to
observe, pay and perform any of Seller's obligations and liabilities under or
relating to the CBA required to have been observed, paid or performed by Seller
prior to the Closing Date.
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14.4 The amount of any unpaid real estate Taxes, assessments,
payments in lieu of Taxes, water charges, sewer rents, and gas, steam,
electricity and other utility charges which Seller is obligated hereunder to
discharge or satisfy, with any interest or penalties thereon, at the option of
Seller, may be allowed as a credit to Buyer at the Closing, provided official
bills therefor are furnished at the Closing. If on the Closing Date there are
any liens or Encumbrances which Seller is obligated hereunder to discharge or
satisfy, Seller may use any portion of the Purchase Price to discharge or
satisfy the same, or may deposit with the Title Company an amount sufficient to
discharge or satisfy the same, provided that, upon such deposit, the Title
Company "omits" same from Buyer's title report and policy. Buyer agrees to
provide at the Closing upon not less than three (3) Business Days' prior written
notice, separate certified checks to facilitate the discharge or satisfaction of
items referred to in this Section 14.4. The existence of liens, Encumbrances,
real estate Taxes, assessments, water charges or sewer rents shall not be an
objection to title, provided Seller shall comply with the provisions of this
Section 14.4.
14.5 Buyer shall pay all expenses for examination of title, the
premium for any title insurance policy issued to Buyer, and all other title,
survey or other expenses incurred by Buyer in connection with this Agreement or
the closing of title hereunder.
14.6 Seller shall pay or shall credit Buyer at the Closing with an
amount equal to any applicable New York State and local, if any, transfer Tax
payable by reason of the assignment of the Ground Lease and the sale of the
Buildings by Seller to the Buyer named herein, if applicable. Seller and Buyer
agree to execute, swear to, and cause to be filed any applicable transfer Tax
returns or other returns required in connection with the Closing.
14.7 Seller and Buyer each shall pay their own attorneys' fees in
connection with this Agreement and the closing of title.
14.8 Buyer, in the manner set forth in this Section 14.8, shall pay
and be solely responsible for the payment of (or, to extent paid by Seller,
shall reimburse Seller at the Closing for), all Leasing Costs paid or payable by
the landlord in connection with (i) any Lease or Sublease entered into after the
date hereof or after the Closing Date in accordance with the provisions hereof
(each such Lease or Sublease, a "NEW LEASE") or any modification or amendment of
any New Lease, (ii) any modification or amendment of any existing Lease or
Sublease executed after the date hereof or after the Closing Date, (iii) any
renewal options, extension options or expansion options which are exercised or
become effective after the date hereof or after the Closing Date pursuant to the
terms of each respective existing Lease or Sublease and New Lease and (iv) any
space leased pursuant to rights of first refusal or first offer or similar
rights which are exercised after the date hereof or after the Closing Date. For
purposes of this Agreement, "LEASING COSTS" shall mean leasing and brokerage
commissions, any direct payments, work allowances and workletters paid or
granted to or for the benefit of the tenant under a lease and any free rent,
rent allowances or rent credits paid or granted to such tenant (and, in the case
of any such inducement not paid in cash, the dollar value thereof), advertising
expenses and legal fees and disbursements. If, as of the Closing Date, Seller
shall have paid or incurred any portion of such Leasing Costs for which Buyer is
responsible, then Buyer shall reimburse Seller for such paid or incurred
portions at Closing.
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14.9 Seller shall bear the cost of any rent allowance, rent credit
or free rent (collectively, "FREE RENT") to which any tenant or subtenant is
entitled set forth on Schedule 14.9 attached hereto and made a part hereof.
Pursuant to Schedule 14.9, Buyer shall be entitled to a credit against the
Purchase Price in the amount of $1,020,001 which amount will be (i) decreased by
an amount of such Free Rent allocable to the period from October 1, 2005 until
the Closing Date (if the Closing Date occurs after October 1, 2005) based on the
Free Rent described on Schedule 14.9, and (ii) increased by an amount of such
Free Rent allocable to the period from the Closing Date (if the Closing Date
occurs prior to October 1, 2005) to October 1, 2005 based on the Free Rent
described on Schedule 14.9. If any of the above items are not determinable at
the Closing, the adjustment shall be made subsequent to the Closing when the
charge is determined. Any errors or omissions in computing adjustments at the
Closing shall be promptly corrected, provided that the party seeking to correct
such error or omission shall have notified the other party of such error or
omission on or prior to the date that is 90 days following the Closing Date.
The provisions of this Article 14 shall survive the Closing.
15. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE. Buyer's
obligation to consummate the transactions described in this Agreement, and to
take the actions required to be taken by Buyer at the Closing, is subject to the
satisfaction, at or prior to such Closing, of each of the following conditions
(any of which may be waived by Buyer, in whole or in part):
15.1 Each representation and warranty made by Seller in this
Agreement shall be true and correct in all material respects as of the Closing
Date, except to the extent the facts and circumstances underlying such
representations and warranties may have changed as of the Closing.
Notwithstanding the foregoing, if on the Closing Date any such representations
and warranties are not true and correct in all material respects, Buyer shall in
any event be required to close hereunder and pay the Purchase Price to Seller
unless the breach(es) of any representations and warranties will have, in the
aggregate, a "material adverse effect" provided that in such event, Seller shall
be entitled, at its option and in its sole discretion, to pay to Buyer such
amount on account of such breach(es) as will cause the same to no longer have a
"MATERIAL ADVERSE EFFECT", in which event Buyer shall be required to close
hereunder. As used herein, a "material adverse effect" shall be deemed to have
occurred if by reason of such misrepresentation the fair market value of the
Property is decreased by more than Three Hundred Seventy-Five Thousand and
No/100 Dollars ($375,000.00). For purposes hereof, a representation or warranty
shall not be deemed to have been breached if the representation or warranty is
not true and correct in all material respects as of the Closing Date by reason
of changed facts or circumstances which pursuant to the terms of this Agreement
are permitted to have occurred.
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15.2 Seller has performed or complied in all material respects with
all of the covenants and obligations required of Seller by this Agreement to be
performed or complied with on or before the Closing Date.
16. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS TO CLOSE. Seller's
obligation to consummate the transactions described in this Agreement, and to
take the actions required to be taken by Seller at the Closing, is subject to
the satisfaction, at or prior to such Closing, of each of the following
conditions (any of which may be waived by Seller, in whole or in part):
16.1 Each representation and warranty of Buyer in this Agreement
must be accurate in all material respects as of the Closing Date as if made on
the Closing Date.
16.2 Buyer has performed or complied with all of the covenants and
obligations required of Buyer by this Agreement to be performed or complied with
on or before the Closing Date.
17. ESCROW CONDITIONS.
17.1 Concurrently with the execution of this Agreement, Buyer has
delivered the Letter of Credit to Holm & Drath, LLP ("ESCROW AGENT").
17.2 Escrow Agent shall hold the Letter of Credit in accordance with
this Agreement, or a joint instruction signed by Seller and Buyer, or separate
instructions of like tenor signed by Seller and Buyer, or a final judgment of a
court of competent jurisdiction. Escrow Agent hereby is authorized and directed
to return the Letter of Credit to Buyer if, as and when the Closing occurs. If
Escrow Agent shall receive an instruction from Seller or Buyer as to the Letter
of Credit, Escrow Agent shall first advise the other party, and, thereafter,
shall act in accordance with such instruction if the other party shall fail to
notify Escrow Agent not to act in accordance with such instruction within ten
(10) days after delivery of such instruction by Escrow Agent to said other
party. Escrow Agent at any time may deposit the Letter of Credit with a court of
competent jurisdiction, and, upon notice to Seller and Buyer of such deposit,
Escrow Agent shall have no further responsibility or liability hereunder. Escrow
Agent shall act upon any instruction or other writing believed by Escrow Agent
in good faith to be genuine and to be signed or presented by the proper Persons.
17.3 If Seller notifies Escrow Agent that the Letter of Credit will
not be renewed by the issuing bank upon the then scheduled expiration date
thereof, or the Letter of Credit is not renewed at least 30 days prior to the
then scheduled expiration thereof, Escrow Agent shall draw upon the Letter of
Credit and hold the proceeds thereof as security for the performance of Buyer's
obligations under this Agreement in the same manner as the Letter of Credit. All
references in this Article 17 to the Letter of Credit shall be deemed to include
any proceeds thereof that are held by Escrow Agent.
17.4 Seller and Buyer acknowledge that Escrow Agent is merely a
stakeholder, and that Escrow Agent shall not be liable for any act or omission
unless taken or suffered in bad faith, in willful disregard of this Agreement or
involving gross negligence. Seller and Buyer shall jointly and severally
indemnify and hold Escrow Agent harmless from and against any costs and expenses
incurred in connection with the proper performance of the Escrow Agent's duties
hereunder. Seller and Buyer shall be jointly and severally liable for, and shall
pay Escrow Agent, on demand, any costs and expenses of Escrow Agent incurred in
connection with the performance of Escrow Agent's duties hereunder, if any, paid
or payable in connection with the holding or disposition of the Letter of Credit
or investment of the proceeds thereof. Notwithstanding that Escrow Agent is
serving as the Escrow Agent pursuant to this Article 17, Escrow Agent as
attorneys may represent Seller in the event of any dispute hereunder.
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17.5 Escrow Agent shall not be bound by any agreement between Seller
and Buyer, whether or not Escrow Agent has knowledge thereof, and Escrow Agent's
only duties and responsibilities shall be to hold, and to dispose of, the Letter
of Credit in accordance with this Article. Without limiting the generality of
the foregoing, Escrow Agent shall have no responsibility to protect, demand
payment of, collect, or enforce any obligation with respect to the Letter of
Credit or for any diminution of the value, or the failure to earn income, of the
Letter of Credit or proceeds thereof for any cause, other than the gross
negligence or bad faith of the Escrow Agent. Escrow Agent may consult with
counsel, and any opinion of counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by Escrow Agent hereunder
in good faith and in reliance upon such opinion.
17.6 All instructions or notices given pursuant to this Article 17
shall be in writing and delivered in accordance with the requirements for
notices pursuant to Article 20 of this Agreement. For purposes of this Article
17, such instructions and notices shall be deemed delivered on the date of
delivery, if by hand, or on the date of mailing in accordance with Article 20 if
mailed, except that no instruction or notice to Escrow Agent shall be deemed
effectively delivered to Escrow Agent until actual receipt thereof by Escrow
Agent. This Article 17 may not be amended without the prior written Consent of
Escrow Agent.
17.7 Buyer and Seller hereby jointly and severally agree to
indemnify and save Escrow Agent harmless from any and all loss, damage, claims,
liabilities, judgments and other cost and expense of every kind and nature which
may be incurred by Escrow Agent arising out of its acting as Escrow Agent
hereunder (including, without limitation, reasonable attorneys' fees and
disbursements) except in the case of its own willful misconduct or gross
negligence.
17.8 The parties acknowledge that Escrow Agent is acting and shall
continue to act, as counsel to Seller in connection with the transactions
described in the recitals and other matters. The parties agree that Escrow Agent
or any member, partner or employee of Escrow Agent shall be permitted to act as
counsel for Seller in any dispute or question as to the disposition of the
Letter of Credit or the proceeds thereof or any other matter arising hereunder.
18. OPTION TO EXCHANGE PROPERTY OF LIKE KIND. Each party agrees that,
at no cost, expense or liability to the other, either party may elect to
effectuate a Tax deferred "like kind exchange" for its respective benefit, and
convey or acquire the Premises (including the Development Parcel if Buyer
exercises the option in Section 12.6(b) above), or cause the Premises to be
conveyed or acquired in accordance with the provisions of Section 1031 of the
Internal Revenue Code as now or hereafter amended, including all rules and
regulations promulgated thereunder, or in accordance with any successor law
("SECTION 1031"). Each party agrees to give written notice to the other not less
than thirty (30) days prior to the Scheduled Closing Date as to whether or not
notifying party intends to make such election. In furtherance of the foregoing
sentence, Buyer hereby notifies Seller that Buyer intends to make such election.
Each party agrees to execute any and all documents as are necessary in
connection therewith, including, but not limited to, any consent to or
acknowledgment of an assignment of this Agreement and each party's rights
hereunder to a qualified intermediary, and shall otherwise cooperate with the
other party and use reasonable efforts to effectuate said exchange, provided
that all documents executed by the other party shall disclaim any representation
or warranty, shall be without recourse and shall waive any right of action
against the signer with regard to the like kind exchange. Each party agrees to
indemnify and hold the other harmless from any additional cost, expense or
liability, including reasonable attorneys' fees, resulting from the other's
participation in such "1031" exchange; however, neither party shall be
responsible for the other's attorneys' fees in connection with this Closing or
for the "review" of the exchange assignments utilized to effectuate same.
Neither party shall be required to assume any additional expense or liability in
connection with, or as part of its cooperation with the like kind exchange. The
indemnity provision of this Article 18 shall survive the Closing. If either
party elects to utilize a tax-deferred exchange, it agrees to do so by utilizing
a qualified intermediary in connection with effectuating the exchange, and the
other party shall not be required to take title to the exchanged property.
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19. BROKERAGE. Each party represents and warrants to the other that
they have not dealt with any broker in connection with this sale, other than
Cushman & Wakefield, Inc. (the "BROKER"), whose commission Seller agrees to
fully pay pursuant to a separate agreement (which shall include any commission
owed to the Broker in excess of the one percent (1%) commission referred to in
Section 12.6(b)). Each party agrees to indemnify and hold the other harmless
from and against any and all liability, claim, loss, damage or expense,
including reasonable attorneys' fees, arising from a Breach by said party of
this representation and warranty. The provisions of this Article 19 shall
survive the Closing.
20. NOTICES. In order for the same to be effective, each and every
notice, communication, request or demand permitted or required to be given by
the terms and provisions of this Agreement, or by any law or ordinance shall be
given in writing, in the manner provided in this Article 20 unless expressly
provided otherwise elsewhere in this Agreement.
20.1 In the case of notices given by Seller to Buyer, any such
notice shall be deemed to have been served and given by Seller and received by
Buyer, on the third (3rd) Business Day following the date on which Seller shall
have deposited such notice by registered or certified mail, return receipt
requested, in a United States post office branch or depository box, addressed to
Buyer at its address as stated on the first page of this Agreement and copies to
Jason M. Barnett, Senior Vice President and General Counsel, c/o Reckson
Associates Realty Corp., 225 Broadhollow Road, Melville, New York 11747, and to
Buyer's attorney, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York
10022, Attention: Jeffrey A. Lenobel, Esq.
20.2 In the case of notices given by Buyer to Seller, any such
notice shall be deemed to have been served and given by Buyer and received by
Seller, on the third (3rd) Business Day following the date on which Buyer shall
have deposited such notice by registered or certified mail, return receipt
requested, in a United States post office branch or depository box, addressed to
Seller at its address as stated on the first page of this Agreement, and a copy
to Seller's attorneys, Fried, Frank, Harris, Shriver & Jacobson LLP, One New
York Plaza, New York, New York 10004, Attention: Robert J. Sorin, Esq., and Holm
& Drath, LLP, 950 Third Avenue, Suite 3101, New York, New York 10022, Attention:
Steven I. Holm, Esq.
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20.3 Each party hereby authorizes its attorney named above or any
successor attorney designated by such party to give any notice on its behalf.
20.4 Notices may also be given by nationally recognized overnight
courier or by hand delivery. If notice is not delivered by registered or
certified mail, return receipt requested, as set forth in this Article 20, but
is delivered in any other manner authorized herein, it shall be deemed served
and given on the date of receipt if received before 3:00 P.M. on a Business Day,
or on the first Business Day following receipt if it is received at any other
time.
20.5 Either party may, by notice as aforesaid, designate one or more
different parties and addresses for notices in lieu of those specified above.
Such designation shall be valid only when notice of such designation is given in
the manner required herein.
21. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. Seller
represents, warrants and covenants to Buyer (which representations, warranties
and covenants shall not survive the Closing unless expressly provided otherwise
herein) as follows:
21.1 Seller is a limited liability company validly existing and in
good standing under the laws of the State of Delaware.
21.2 Seller has the power and authority to execute and deliver this
Agreement and the Ancillary Documents and to perform its obligations hereunder
and thereunder, and Seller has taken all limited liability company actions
necessary to authorize the execution and delivery of this Agreement and the
Ancillary Documents by Seller and the performance of Seller's obligations
hereunder and thereunder.
21.3 Seller has duly executed and delivered this Agreement. Each of
the Ancillary Documents, when executed by Seller, will be duly executed and
delivered by it. This Agreement constitutes, and the Ancillary Documents when
executed and delivered by Seller will constitute, the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with their
respective terms, except as such enforceability may be limited by applicable
creditor rights, law and general principles of equity.
21.4 Except for any filing with Nassau County with respect to the
Ground Lease, to the extent such filing is required pursuant to the terms
thereof, no Consent of or filing with any Governmental Body is required for
Seller to execute this Agreement and perform the transactions described in this
Agreement by Seller.
21.5 The execution and delivery of this Agreement and the Ancillary
Documents by Seller do not violate any provisions of the Organizational
Documents of Seller and will not result in a Breach or violation or default
under any Order or Governmental Authorization to which Seller is subject or
result in a Breach by Seller under any Assumed Contract to which it is bound.
Neither the execution and the delivery of this Agreement nor Seller's compliance
with the terms of this Agreement will violate any legal requirements applicable
to Seller.
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21.6 To Seller's Knowledge, except for the litigations and claims
set forth on Schedule 21.6 and claims or actions covered by insurance, there are
no pending causes, claims, Proceedings or legal actions by or against Seller
which would have a material adverse effect on the Acquisition Assets. Without
limiting the foregoing, the litigation expressly identified in that certain
Contract of Sale for the Premises, dated May 23, 2003, between Seller, as the
buyer thereunder, and Coliseum Towers Associated L.P., as the Seller thereunder,
as the "Nassau County Land Tax Case" has been finally adjudicated, with no
remaining contingent liabilities that could be binding on the Premises or Buyer
at or after the Closing in connection therewith.
21.7 The Master Lease is in full force and effect. Seller is the
holder of the landlord's interest and the tenant's interest in and to the Master
Lease and has not previously assigned any of its interests in the Master Lease,
except to the holder of the Existing Mortgage. Since the time that Seller became
the holder of the landlord's interest and the tenant's interest in and to the
Master Lease, Seller has not had any intent to merge the landlord's interest
with the tenant's interest in the Master Lease.
21.8 To the Knowledge of Seller, no written notice has been received
by Seller from any Governmental Body claiming any material violation of any
Environmental Law with respect to the Acquisition Assets.
21.9 Neither the execution and delivery of this Agreement, nor
compliance with the terms and provisions of this Agreement on the part of
Seller, conflict with, or result in a Breach of any of the terms of, any
agreement or instrument to which Seller is a party, or by which it is or may be
bound, or result in the imposition of any lien, charge or Encumbrance of any
nature whatsoever, or give the other any interest or rights in the Acquisition
Assets.
21.10 The Ground Lease is in full force and effect. Prior to the
date hereof, Seller has delivered to Buyer a true, correct and complete copy of
the Ground Lease, including all amendments, assignments and other modifications
thereto.
21.11 Seller has not received any written notice from Nassau County
alleging that Seller is in default of any of Seller's obligations under the
Ground Lease, and Seller has not delivered any written notice to Nassau County
alleging that Nassau County is in default of any of Nassau County's obligations
under the Ground Lease. To the Knowledge of Seller, Seller is not in default of
any of its material obligations under the Ground Lease.
21.12 Seller has not assigned, pledged or encumbered its leasehold
interest in the Ground Lease, except to the holder of the Existing Mortgage.
21.13 Except for Personal Property removed in Seller's ordinary
course of business, no material item of the Personal Property shall be removed
from the Buildings prior to Closing unless it is replaced with a similar item of
at least equal value.
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21.14 From the Effective Date to the Closing Date, Seller shall
operate the Buildings in the ordinary course of its day to day operations,
consistent with past practice. Notwithstanding the foregoing, Seller shall not
be obligated hereunder to perform any capital improvements from and after the
Effective Date. If Seller shall perform any capital improvement after the
Effective Date required by any applicable Legal Requirements or which is
necessary in Seller's good faith judgment, to (a) prevent an immediate threat to
the health, safety or welfare of any person in the immediate vicinity of the
Premises, (b) prevent immediate damage or loss to the Premises or (c) avoid the
suspension of any necessary service in or to the Premises, then, to the extent
that Seller provided Buyer with prior written notice before performing any such
capital improvements and Buyer consented thereto (which consent will not be
unreasonably withheld), Buyer shall reimburse Seller at the Closing for the
actual costs incurred by Seller in connection with such capital improvement.
21.15 Seller has not filed for any bankruptcy protection, nor to the
Knowledge of Seller are there any pending bankruptcy filings against Seller.
21.16 Seller has not granted any Person a right of first offer,
right or first refusal or option to acquire the Premises (and the Development
Parcel, if Buyer purchases the Development Parcel pursuant to Section 12.6(b))
or any portion thereof and, to the Knowledge of Seller, no such right exists in
favor of any third Person.
21.17 All Leases, Subleases, rents, rent arrearages, charges and
(other than as expressly identified below) security deposits affecting the
Premises (and the Development Parcel, if Buyer purchases the Development Parcel
pursuant to Section 12.6(b)) on the date hereof, are accurately shown on
Schedule 21.17; complete copies of all Leases and Subleases and all amendments
and guarantees relating thereto have been delivered to Buyer; all of the Leases
and Subleases are in full force and effect (except as noted otherwise in
Schedule 21.6), and to Seller's Knowledge, neither landlord nor any of the
tenants are in material default of any of their obligations under any of the
Leases or Subleases (subject to Schedule 21.6); no tenant has paid rent for more
than one (1) month in advance, to Seller's Knowledge; no tenant claims or is
entitled to "free" rent, rent concessions, rebates or rent abatements except as
set forth in the Leases and Subleases; no tenant claims or is entitled to any
set-offs against rent except as set forth in the Leases and Subleases; all work
required to be performed by the landlord under the Leases or Subleases has been
completed; Seller has assigned none of its rights under the Leases or Subleases
with the exception, if applicable, of a collateral assignment to the holder of
the Existing Mortgage; Seller has not assumed or agreed to perform the
obligations of any tenant under any lease or entity related to any tenant under
any other lease for space elsewhere. If Buyer validly elects to purchase
Seller's interest in the Development Parcel as provided in Section 12.6(b),
Seller further represents and warrants to Buyer that there are no Leases or
Subleases affecting the Development Parcel or any portion thereof.
Notwithstanding the foregoing, Seller represents that (a) to the best of its
knowledge the performance bond required to have been provided by Compass, as set
forth on Schedule 21.17, was never delivered to Seller and (b) Seller is unable
to locate the security deposits relating to the Yellow Book and Ruskin Moscou
leases, which security deposits, pursuant to such leases, are required to be in
the form of irrevocable, unconditional "evergreen" letters of credit, and the
letters of credit which comprise the security for the Yellow Book and Ruskin
Moscou leases may name as beneficiary Seller's predecessor(s)-in-interest.
Seller shall at or prior to the Closing deliver to Buyer (I) the Compass
performance bond and (II) either (y) such original letters of credit, together
with instruments of assignments thereof to Buyer issued by their respective
issuers on such issuers' standard forms, or (z) replacements of such letters of
credit, in form and substance substantially similar to such replaced letters of
credit and naming Buyer as beneficiary; provided that in the event that Seller
fails to deliver the items delivered in either clause (I) or (II) above, the
Closing shall nevertheless occur and the obligations of the parties in respect
thereof shall not be affected, but Seller shall (in addition to its obligations
pursuant to Section 13.1(o)) pay any and all replacement fees in connection
therewith, and shall indemnify, defend and hold Buyer harmless from and against
any and all claims, demands, suits, obligations, payments, damages, losses,
penalties, liabilities, costs and expenses (including but not limited to
reasonable attorneys' fees) arising out of Seller's having drawn on any such
performance bond or letters of credit prior to the Closing, to the extent that
Buyer has the obligation to return such performance bond or letter of credit to
the applicable tenant, and such obligations shall survive the Closing without
reference to the Survival Period and shall not be subject to the limitations
relating to (a) the "material adverse effect" threshold in Section 15.1, (b) the
Threshold Amount described in Section 21.24(d), and (c) proviso (x) in Section
21.24(d).
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21.18 The only labor unions affecting the Acquisition Assets are
those with which Seller's property manager is in contract are Local 30 of the
Operating Engineers Union and Local 25 of the International Brotherhood of
Electrical Workers and, to the Knowledge of Seller, there are no other CBA's
binding upon Seller or the Premises. Seller is not party to any CBA. Seller has
delivered to Buyer true, complete and correct copies of the applicable CBA
between Seller's property manager and each such labor unions.
21.19 There are no Contracts affecting the Premises except as shown
on Schedule 21.19. Except as otherwise expressly set forth on Schedule 21.19,
all Contracts are terminable by Seller without the payment of any termination
fee, penalty or other sum on not more than thirty (30) days' notice to the
counterparty thereto. Buyer shall have the right, exercisable by written notice
to Seller given not less than forty-five (45) days prior to Scheduled Closing
Date, to direct Seller to terminate any service contract affecting the Premises
as of the Closing Date, and if Buyer shall timely so direct Seller, Seller shall
deliver a termination notice to the counterparty under any such service
contract, except such service contracts which cannot, by their terms, be so
terminated. Any such Contract not so terminated shall be an Assumed Contract.
Notwithstanding the foregoing, in the event that the "Capital Improvement
Contract" identified on Schedule 21.19 is not terminated as of the Closing,
Seller shall be solely responsible for all liabilities and obligations
thereunder, whenever due or payable (except to the extent arising from
amendments or other modifications thereto consented to by Buyer), which covenant
shall survive the Closing without regard to the Survival Period and not subject
to the limitations relating to (a) the "material adverse effect" threshold in
Section 15.1, (b) the Threshold Amount described in Section 21.24(d), and (c)
proviso (x) in Section 21.24(d).
21.20 The insurance coverages disclosed by the certificate of
insurance annexed hereto as Schedule 21.20 are in full force and effect. Seller
shall maintain all such insurance coverages in full force and effect to the
Closing Date.
21.21 Subject to the provisions of Section 14.8, all brokerage
commissions incurred by Seller or, to the Knowledge of Seller, Seller's
predecessor in title, including referral fees, with respect to the initial
execution of any Leases and Subleases and the renewal, amendment or modification
of Leases and Subleases, in each case which were executed or have become
effective prior to the Effective Date, are set forth on Schedule 21.21 attached
hereto, and will be paid in full by Seller on or before the Closing Date. Any
amounts for which Seller is responsible under this Section 21.21 shall not be
subject to the limitations relating to (a) the "material adverse effect"
threshold in Section 15.1, (b) the Threshold Amount described in Section
21.24(d), and (c) proviso (x) in Section 21.24(d).
32
21.22 Seller shall be responsible to pay the amount of any Leasing
Costs (other than rent allowances, rent credit or free rent), but including any
unpaid work allowance or the dollar value of any unpaid workletter which is owed
to a tenant or subtenant with respect to the initial execution of any Lease or
Sublease and the renewal, amendment or modification of Leases and Subleases, in
each case which was executed or have become effective prior to the Effective
Date, and which will be paid by Seller on or before the Closing Date or credited
to the Buyer at the Closing. Any amounts for which Seller is responsible under
this Section 21.22 shall not be subject to the limitations relating to (a) the
"material adverse effect" threshold in Section 15.1, (b) the Threshold Amount
described in Section 21.24(d), and (c) proviso (x) in Section 24.21(d).
21.23 Seller shall not (i) consent to any change in the zoning
classification of the Premises or (ii) sell, transfer, assign or dispose of, or
consent to the utilization by any third party of, any development rights,
including air rights, if any, without Buyer's prior consent (it being understood
that Seller shall be permitted to consent to any change in the zoning
classification of the Development Parcel or sell, transfer, assign or dispose
of, or consent to the utilization by any third party of, any development rights,
including air rights, if any, appurtenant to the Development Parcel, in each
case without Buyer's consent).
21.24 (a) Except as otherwise expressly stated in this Agreement,
Seller makes no representation and warranty as to the Condition of the
Acquisition Assets, the operations of the Premises or the market conditions of
the area in which the Premises is located and is conveying the Acquisition
Assets to Buyer AS IS, WHERE IS AND WITH ALL FAULTS, without representation or
warranty of any kind or nature whether express or implied or arising by
operation of law. Seller specifically disclaims any warranty of merchantability
or fitness for a particular purpose. Except as expressly provided in this
Agreement, no adverse change in the Condition of the Acquisition Assets prior to
the Closing Date shall give rise to any obligation on the part of Seller or
remedy on the part of Buyer; provided, that such adverse change does not prevent
the Buildings from being operated as presently operated and for their present
use.
(b) Without limiting the generality of the foregoing, except for
the representations and warranties of Seller contained in this Agreement, the
transactions described in this Agreement are without statutory, express or
implied warranty, representation, agreement, statement or expression of any
opinion regarding the Condition of the Acquisition Assets, including any and all
statutory, express or implied representations or warranties related to their
suitability for habitability, merchantability, or fitness for a particular
purpose or created by any affirmation of fact or promise, by any description of
the Acquisition Assets or by operation of any legal requirements.
33
(c) For purposes of this Agreement, the term "CONDITION OF THE
ACQUISITION ASSETS" shall mean all of the following:
(i) The quality, nature and adequacy of the physical
Condition of the Acquisition Assets, including (A) the quality of the design,
labor and materials used to construct the improvements included in the
Acquisition Assets or in the construction of the Premises; (B) condition of
structural elements, foundations, roofs, glass, mechanical, plumbing,
electrical, HVAC, sewage and utility components and systems; (C) the capacity or
availability of sewer, water, or other utilities; (D) the geology, flora, fauna,
soils, subsurface conditions, groundwater, landscaping and irrigation of the
Land, and its location in or near any special taxing district, flood hazard
zone, wetlands area, protected habitat, geological fault or subsidence zone,
hazardous waste disposal or clean-up site, or other special area; (E) the
existence, location or condition of ingress, egress, access and parking; (F) the
condition of the Personal Property and any fixtures; (G) the presence of any
asbestos or other Hazardous Materials, dangerous, or toxic substance, material
or waste in, on, under or about the Land and the improvements located thereon;
(H) any environmental, botanical, zoological, hydrological, geological,
meteorological, structural or other condition or hazard or the absence thereof
heretofore, now or hereafter affecting in any manner the Acquisition Assets; (I)
the development of any portion of the Land; and (J) any other matter or thing
related to the Acquisition Assets.
(ii) The economic feasibility, cash flow and expenses of the
Buildings, and habitability, merchantability, fitness, suitability and adequacy
of the Buildings for their current use and purpose, and any condition at or
which affects the Buildings with respect to a particular use, purpose,
development, potential or otherwise.
(iii) The compliance or failure to comply by Seller, the
Land or the Buildings with (A) all legal requirements or Governmental
Authorizations, including those relating to zoning, building, public works,
parking, fire and police access, handicap access, life safety, subdivision and
subdivision sales, and (B) all agreements, covenants, conditions, restrictions
(public or private), development agreements, site plans, building Permits,
building rules and other instruments and documents governing or affecting the
use, management and operation of the Land or Buildings.
(iv) Those matters referred to in this Agreement and the
documents listed on the Schedules to this Agreement (provided, however, that the
inclusion of this Section 21.24(c)(iv) shall not be deemed to modify Seller's
representations in this Agreement).
(v) The availability, cost, terms and coverage of liability,
hazard, terrorism, comprehensive and any other insurance for the Premises or its
operations.
(vi) The condition of title to the Acquisition Assets,
including vesting, legal description, matters affecting title, Encumbrances,
boundaries, encroachments, mineral rights, options, easements, and access,
violations of restrictive covenants, zoning ordinances, setback lines, or
development agreements; the availability, cost and coverage of title insurance;
leases, rental agreements, occupancy agreements, rights of parties in possession
of, using or occupying the Land or Buildings, and standby fees, Taxes, bonds and
assessments.
34
(d) The representations and warranties made by Seller in this
Agreement shall survive the Closing for a period of one hundred fifty (150) days
following the Closing Date (the "SURVIVAL PERIOD"). Each such representation and
warranty shall automatically be null and void and of no further force and effect
on the 150th day following the Closing Date unless, with respect to any
particular representation and warranty, Buyer shall have delivered a notice to
Seller, prior to such 150th day, alleging that Seller is in breach of such
representation or warranty and specifying in reasonable detail the nature of
such breach, and Buyer shall have commenced an action, suit or proceeding with
respect to the breach of such representation or warranty specified in such
notice on or before the date which is thirty (30) days after the date of the
expiration of the Survival Period. Notwithstanding anything to the contrary in
this Agreement, it is expressly understood and agreed by the parties that Buyer
shall not be entitled to any claim for indemnification under any provisions
contained in this Agreement or any instrument or agreement being entered into
concurrently herewith or delivered at the Closing, or for the breach of any
representation and warranty of Seller set forth herein, in each case which
survives the Closing (this Agreement and such other agreements and instruments,
collectively, the "TRANSACTION DOCUMENTS"), (x) if the breach or inaccuracy of
representation or warranty in question results from or is based on a condition,
state of facts or other matter that was actually known to Buyer prior to the
Closing, (y) unless the aggregate amount of actual loss to Buyer in respect of
all claims for indemnification arising pursuant to the Transaction Documents
exceeds the Threshold Amount, in which event Buyer shall only be entitled to
indemnification for amounts, if any, in excess of the Threshold Amount, and (z)
unless Buyer has given Seller written notice of such claim (stating the
representation or warranty alleged to have been breached or the indemnification
provision of the Transaction Documents pursuant to which recovery is sought, an
explanation in reasonable detail of the circumstances giving rise to the claim,
and Buyer's good faith estimate of the total dollar amount of the harm suffered
and likely to be suffered as a result of the alleged breach or claim) within the
Survival Period, it being understood and agreed that Seller shall have no
further liability under or in respect of such warranties and representations or
under the indemnification provisions of the Transaction Documents after the
expiration of the Survival Period, except to the extent of any breach or claim
of which Buyer gives Seller written notice on or prior to such date. As used
herein, "THRESHOLD AMOUNT" means Three Hundred Seventy-Five Thousand Dollars
($375,000). In addition, in no event shall Seller's maximum liability for all
claims for breaches of representations and warranties in this Agreement,
together with all other claims by Buyer under the Transaction Documents, exceed
the sum of Four Million Dollars ($4,000,000), the parties having expressly
agreed that Seller's maximum liability for any and all claims under the
Transaction Documents is to be capped at that amount. In addition, in no event
shall Seller be liable for any consequential, indirect, punitive, special or
exemplary damages, or for lost profits, unrealized expectations or other similar
claims, and in every case Buyer's recovery for any claims referenced above shall
be net of any insurance proceeds and any indemnity, contribution or other
similar payment recovered or recoverable by Buyer from any insurance company,
tenant, anchor or other third party (it being understood that Buyer shall have
no obligation to exhaust its recourse to any such other third party prior to
making any claim under this Article 21). As security for its obligations under
this Article 21, at the Closing, the members of Seller shall pledge its
membership interests in Seller to Buyer pursuant to a Membership Interest Pledge
Agreement (the "PLEDGE AGREEMENT") substantially in the form of Schedule 21.24
attached hereto and made a part hereof. The terms and provisions of this
paragraph shall survive the Closing.
35
22. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER. Buyer
represents, warrants and covenants to Seller (which representations, warranties
and covenants shall not survive the Closing unless expressly provided otherwise
herein) as follows:
22.1 Buyer is a limited liability company validly existing and in
good standing under the laws of the State of Delaware.
22.2 Buyer has the power and authority to execute and deliver this
Agreement and the Ancillary Documents and to perform its obligations hereunder
and thereunder, and Buyer has taken all limited liability company actions
necessary to authorize the execution and delivery of this Agreement and the
Ancillary Documents by Buyer and the performance of Buyer's obligations
hereunder and thereunder.
22.3 Buyer has duly executed and delivered this Agreement. Each of
the Ancillary Documents, when executed by Buyer, will be duly executed and
delivered by it. This Agreement constitutes, and the Ancillary Documents when
executed and delivered by Buyer will constitute, the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with their
respective terms, except as such enforceability may be limited by applicable
creditor rights, law and general principles of equity.
22.4 No Consent of or filing with any Governmental Body is required
for Buyer to execute this Agreement and perform the transactions described in
this Agreement by Buyer.
22.5 The execution and delivery of this Agreement and the Ancillary
Documents by Buyer do not violate any provisions of the Organizational Documents
of Buyer and will not result in a Breach or violation or default under any Order
or Governmental Authorization to which Buyer is subject or result in a Breach by
Buyer under any agreement, contract or other instrument to which it is bound.
Neither the execution and the delivery of this Agreement nor Buyer's compliance
with the terms of this Agreement will (a) violate any legal requirements
applicable to Buyer, or (b) require the Consent or the making by Buyer of any
declaration, filing or registration with any person.
22.6 In entering into this Agreement, Buyer has not been induced by
and has not relied upon any written or oral representations, warranties or
statements, whether express or implied, made by Seller or any of its Affiliates
or their respective Representatives, with respect to the Acquisition Assets, the
Condition of the Acquisition Assets or any other matter affecting or relating to
the transactions described in this Agreement, other than those expressly set
forth in this Agreement. Buyer's obligations under this Agreement shall not be
subject to any contingencies, diligence or conditions except as expressly set
forth in this Agreement. Buyer acknowledges that Buyer has knowledge and
expertise in financial and business matters that enable Buyer to evaluate the
merits and risks of the transactions described in this Agreement.
36
All of the Buyer's representations, warranties and covenants set
forth in this Agreement shall be deemed made by Buyer to Seller as of the date
of this Agreement and as of the Closing Date and shall survive the Closing for a
period of one hundred twenty (120) days.
Buyer and anyone claiming by, through or under Buyer, hereby fully
releases the Exculpated Parties from any and all claims that it may now have or
hereafter acquire against the Exculpated Parties for any costs, losses,
liabilities, damages, expenses, demands, actions or causes of action, whether
foreseen or unforeseen, arising out of or related to (i) any construction
defects, errors or omissions on or in the Premises, (ii) the past, present, or
future presence of Hazardous Materials on or in the Premises (or any parcel in
proximity thereto) or in any water on or under the Premises, (iii) compliance or
non-compliance with any Environmental Laws, (iv) the off-site presence of
Hazardous Materials generated at the Premises, or (v) any other conditions
affecting the Premises. In furtherance of the foregoing release, Buyer hereby
waives any and all rights and remedies whatsoever, express or implied, Buyer may
have against the Exculpated Parties arising out of or resulting from the matters
set forth in the foregoing clauses (i) through (v), including, without
limitation, the right to rescind this Agreement and seek damages for
non-compliance with Environmental Laws, and that in connection with such
matters, Buyer shall look solely to Seller's predecessors or to such contractors
and consultants as may have contracted for work in connection with the Premises
for any redress or relief. Buyer's closing hereunder shall be deemed to
constitute an express waiver of Buyer's right to cause Seller (or any other of
the Exculpated Parties) to be joined in any action brought under any
Environmental Laws. Buyer further understands and agrees that some of Seller's
predecessors in interest may have filed petitions under the bankruptcy code and
Buyer may have no remedy against such predecessors, contractors or consultants.
The waivers and releases set forth in this Section 22 shall survive the Closing
or termination of this Agreement. As used herein, "EXCULPATED PARTIES" shall
mean Seller and any person acting on behalf of Seller, and any direct or
indirect officer, director, partner, shareholder, employee, agent,
representative, accountant, advisor, attorney, principal, affiliate, consultant,
contractor, successor or assign of any of the foregoing parties.
23. NO ASSIGNMENT.
23.1 This Agreement may not be assigned by Buyer without the prior
written consent of Seller, which may be given or denied at Seller's sole
discretion, except as otherwise expressly provided in Article 18 in connection
with a "like kind exchange" under Section 1031 or as expressly below in this
Section 23.1. Any agreement by Buyer to assign or transfer this Agreement, and
any assignment, transfer, conveyance, pledge or other encumbrance of any direct
or indirect ownership interest in Buyer, shall be deemed to constitute an
"assignment" of this Agreement for purposes of this Article 23; provided, that
the trading of ownership interests in any Person that is a publicly traded
Person on a nationally recognized exchange or quotation system shall not
constitute an "assignment" of this Agreement for purposes of this Article 23.
Any breach by Buyer of the provisions of this Section 23.1 shall constitute a
default by Buyer under the terms of this Agreement, entitling Seller to exercise
any and all remedies available to Seller under this Agreement, as well as at law
and in equity, including the remedy set forth in Section 28.2. Notwithstanding
the forgoing, Buyer shall be permitted to assign this Agreement to any Person
(a) in which Reckson Operating Partnership, L.P. owns, directly or indirectly,
through one or more intermediary entities, 20% or more of the aggregate
ownership interests and (b) which is Controlled by Reckson Operating
Partnership, L.P.; provided, and on the express conditions precedent that, (i)
Buyer delivers to Seller not less than ten (10) Business Days prior written
notice of such proposes assignment and (ii) such assignment is effectuated
pursuant to a form of assignment and such other documentation reasonably
satisfactory to Seller and satisfying the requirements set forth in the second
sentence of Section 23.2 below, and such assignment shall not be deemed
effective or binding upon Seller unless and until a duly executed and
acknowledged counterpart of such assignment shall have been delivered to Seller
not later than five (5) days after such assignment shall be fully executed. For
purposes of this Section 23.1, "Control" shall mean the ability, directly or
indirectly, to (A) direct the management and policies of a Person and (B)
conduct the day-to-day business operations of such Person.
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23.2 In the event of any assignment of this Agreement requiring
Seller's consent and to which Seller consents (which consent may be granted or
withheld in Seller's sole and absolute discretion), such assignment shall not be
deemed effective or binding upon Seller unless and until a duly executed and
acknowledged counterpart of such assignment shall have been delivered to Seller
not later than five (5) days after such assignment shall be fully executed. Such
assignment shall provide that the assignee thereunder unconditionally assumes
all of the terms and conditions to be performed by Buyer hereunder, and the
assignee shall covenant to perform such covenants and obligations in the place
and stead of Buyer as though the assignee were the original purchaser named
herein.
23.3 Buyer and any assignee of Buyer shall, jointly and severally,
indemnify and hold Seller harmless from and against any loss, cost, expense
(including attorneys' fees and disbursements), Damage, or claim incurred by
Seller as a result of any assignment of this Agreement (including any claim for
a brokerage commission in connection with such assignment or otherwise), which
obligation shall survive the Closing.
24. TRANSFER AND SALES TAXES. Buyer agrees to (i) pay any sales, use
and similar Tax payable with respect to the transfer of any Personal Property
and to indemnify and hold harmless Seller from and against any and all
liability, loss, cost, damage and expense (including, but not limited to,
interest, penalties and attorneys' fees) which Seller may sustain by reason of
the non-payment of such Tax and (ii) file any sales, use or other Tax reports
which may be required. Buyer shall pay (a) the cost of the Survey, (b) the cost
of premiums on the Title Policy, (c) the cost of performing any due diligence,
(d) the cost of any recordation fees to put the Deed of record with the
appropriate Governmental Body, (e) all costs and expenses of obtaining any
financing Buyer may elect to obtain, including, but not limited to, any fees,
financing costs, mortgage and recordation Taxes and intangible Taxes in
connection therewith, and (f) the cost of its legal counsel, advisors and other
professionals employed by Buyer in connection with its purchase of the
Acquisition Assets from Seller. Seller shall pay the cost of (a) its legal
counsel, advisors and other professionals employed by Seller in connection with
the sale of the Acquisition Assets to Buyer, and (b) all transfer Taxes relating
to the transfer of the Acquisition Assets to Buyer. Except as otherwise
expressly provided for in this Agreement, each party will bear its own expenses
incurred in connection with the preparation, execution and performance of its
obligations under this Agreement, including all fees and expenses of
Representatives. The provisions of this Section 24 shall survive the Closing.
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25. REAL ESTATE TAX REFUNDS AND PROCEEDINGS. Seller shall have the sole
right to withdraw, compromise or settle any pending application or Proceeding
for the reduction of the assessed valuation of the Land or Buildings and
reserves all right to, and the proceeds from, any recovery under such pending
application or Proceeding where the proceeds from, or recovery under, any such
application or Proceeding cover a Tax period ending prior to the Closing Date so
long as such compromise or settlement does not bind Buyer for any Tax period
during which the Closing occurs or for any Tax period thereafter. Buyer shall
have the sole right to withdraw, compromise or settle any pending application or
Proceeding for the reduction of the assessed valuation of the Land or Buildings
and reserves all right to, and the proceeds from, any recovery under such
pending application or Proceeding where the proceeds from, or recovery under,
any such application or Proceeding cover a Tax period commencing after the
Closing Date. With respect to any application or Proceeding for the reduction of
the assessed valuation of the Land or Buildings which covers a Tax period during
which the Closing Date occurs, Seller shall have the sole right to withdraw,
compromise or settle any such pending application or Proceeding; provided, that
(a) Seller shall not withdraw, compromise or settle such application or
Proceeding applicable to such Tax period without the consent of Buyer, which
consent shall not be unreasonably withheld, conditioned or delayed, and (b)
Seller shall be entitled to receive that portion of such net proceeds or
recovery attributable to all periods prior to and including the Closing Date and
Buyer shall be entitled to receive that portion of such proceeds or recovery
attributable to all periods subsequent to the Closing Date, provided that there
first shall be deducted from the portion of the proceeds or recovery to be given
to Seller or Buyer a portion of all expenses incurred in obtaining such proceeds
or recovery, such portion (when expressed as a percentage) to be equal to the
portion (also, when expressed as a percentage) of the proceeds or recovery to be
paid to Seller and Buyer, respectively. With respect to any such application or
Proceeding for the reduction of the assessed valuation of the Land or Buildings,
Seller shall deliver or instruct its tax certiorari counsel to deliver to Buyer
a copy of each submission or filing made by or on behalf of Seller and of such
other material documents and correspondence to or from the applicable taxing
authorities in connection therewith (but Seller's failure to deliver any such
item to Buyer shall not affect Buyer's liability hereunder). Each party shall
execute and deliver any documents that the other party may reasonably require in
connection with any applications or Proceedings mentioned in this Section 25 and
in connection with any recovery had thereunder, without charge to the requesting
party. As to any proceeds received by Seller or Buyer under this Section 25,
each party agrees to indemnify and hold harmless the other party from and
against claims made by any tenants or subtenants for any portion of such
proceeds. The provisions of this Section 25 shall survive the Closing.
26. CHRISTMAS TREE LIGHTING CEREMONY. Buyer acknowledges that Seller,
in conjunction with European American Bank (Citibank, N.A.'s predecessor as a
subtenant in the Buildings), has sponsored an annual Christmas tree lighting
ceremony (the "CEREMONY") at the Buildings. The cost of the 2005 Ceremony shall
be borne by Buyer, and at the Closing, Buyer shall reimburse Seller for all
costs and expenses incurred by Seller in connection with the 2005 Ceremony.
Seller has received no written notice from Citibank, N.A. canceling the 2005
Ceremony.
27. TERMINATION EVENTS. By notice given to the other parties to this
Agreement, this Agreement may be terminated:
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27.1 by Buyer in accordance with the provisions of Section 29.1;
27.2 by Seller in accordance with Section 5.5;
27.3 by Buyer if any of the conditions set forth in Article 15 have
not been satisfied as of the Scheduled Closing Date (subject to Seller's rights
to extend the same from time to time) or if satisfaction of such a condition is
or becomes impossible (other than through the failure of Buyer to comply with
its obligations under this Agreement) and Buyer has not waived such condition;
or
27.4 by Seller if any of the conditions set forth in Article 16 have
not been satisfied as of the Termination Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of Seller to
comply with its obligations under this Agreement) and Seller has not waived such
condition.
28. EFFECT OF TERMINATION; BUYER'S RIGHTS TO SEEK SPECIFIC PERFORMANCE.
28.1 If this Agreement terminates pursuant to Section 27.1, 27.2 or
27.3, Escrow Agent shall return the Letter of Credit to Buyer. At such time all
further obligations of the parties under this Agreement will terminate and be of
no further force and effect except for the provisions which expressly survive
such termination, and no party shall have any liability to the other by reason
of such termination of this Agreement.
28.2 If Seller terminates this Agreement pursuant to Section 27.4,
Escrow Agent shall draw down the full amount of the Letter of Credit and deliver
the proceeds thereof to Seller and Seller shall be entitled to retain such
proceeds. At such time all further obligations of the parties under this
Agreement will terminate and be of no further force and effect except for the
provisions which expressly survive such termination, and no party shall have any
liability to the other by reason of such termination of this Agreement. Seller
shall have the right, as its sole remedy, to draw down the full amount of the
Letter of Credit and retain the proceeds thereof as liquidated Damages without
the necessity of proving actual Damages. Buyer acknowledges and agrees that
Seller's actual Damages resulting from the Buyer's Breach would be difficult to
ascertain and that the Deposit represents the parties' good faith estimate of
Seller's Damages from a Breach by Buyer.
28.3 Notwithstanding anything in this Article 28 to the contrary, if
Buyer is ready, willing and able to tender performance of all of its obligations
under this Agreement and Seller has breached any of the covenants or agreements
required to be performed by Seller at the Closing under this Agreement, Buyer
shall have the right, instead of terminating this Agreement pursuant to Section
28.1, to elect to permit this Agreement to remain in effect and to sue Seller
for specific performance, provided that any such action for specific performance
must be commenced within thirty (30) days after the Outside Closing Date. If
Buyer shall fail to commence any such action within such thirty (30) day period,
then Buyer shall be deemed to have irrevocably waived its right to seek specific
performance. If specific performance is no longer available to Buyer due to the
fact of Seller's knowing and willful breach of this Agreement, then Buyer shall
be permitted to institute any legal proceeding in order to seek recovery of
actual damages incurred by Buyer due to such knowing and willful breach by
Seller (it being understood that in no event shall Seller be liable for any
consequential, indirect, punitive, special or exemplary damages, or for lost
profits, unrealized expectations or any other similar claims).
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28.4 The provisions of this Article 28 shall be the sole and
exclusive remedy resulting from a Breach of any representations, warranty,
covenant or agreement prior to the Closing that is available under contract,
tort or any other legal theory to the parties to this Agreement.
29. RISK OF LOSS.
29.1 If, on or before the Closing Date, all or any of the
Acquisition Assets are (a) damaged or destroyed by fire or other casualty or (b)
taken as a result of any condemnation or eminent domain proceeding, Seller shall
promptly notify the Buyer. If (a) the reasonable cost to restore the resulting
casualty or condemnation exceeds Twelve Million Five Hundred Thousand and 00/100
Dollars ($12,500,000.00), Buyer may terminate this Agreement by delivery of a
notice of termination to Seller within twenty (20) days after the date of
delivery of Seller's notice of such casualty or condemnation, time being of the
essence or (b) the casualty gives rise to the right of a tenant to terminate any
of the Major Leases (unless such tenant has waived their right of termination),
Buyer may terminate this Agreement by delivery of a notice of termination to
Seller not sooner than thirty (30) days after the date of delivery of Seller's
notice of such casualty or condemnation, but not later than fifty (50) days
after the date of delivery of Seller's notice of such casualty or condemnation,
time being of the essence. If Buyer does not terminate this Agreement pursuant
to and in accordance with the foregoing sentence, Buyer shall remain obligated
to close the acquisition of the Acquisition Assets.
29.2 At the Closing, Seller shall credit against the Purchase Price
payable by Buyer an amount equal to the net proceeds, if any, received by Seller
from such casualty or condemnation and not paid toward the repair or restoration
of the Acquisition Assets plus the amount of any deductible applicable to the
casualty. If, as of the Closing Date, Buyer has not elected to terminate this
Agreement pursuant to Section 29.1 above, then the parties shall, nevertheless,
consummate the transactions described in this Agreement on the Closing Date,
without any deduction for such insurance or condemnation proceeds, and Seller
shall, at the Closing, credit against the Purchase Price an amount equal to the
net proceeds, if any, received by Seller from such casualty or condemnation and
not paid toward the repair or restoration of the Acquisition Assets and assign
to Buyer all Seller's rights, if any, to the insurance or condemnation proceeds
and to all other rights or claims arising out of or in connection with such
casualty or condemnation and credit Buyer the amount of any deductible. Seller
shall not settle or compromise any claim without Buyer's prior written consent,
which shall not be unreasonably conditioned, withheld or delayed.
30. MISCELLANEOUS.
30.1 Anything to the contrary contained herein notwithstanding, any
contingency or other condition to this Agreement or failure by Seller may be
waived by Buyer and Buyer may elect to take title subject thereto. If so elected
by Buyer, it shall not be entitled to any offset, credit, allowance or to an
abatement of the Purchase Price unless otherwise stipulated elsewhere herein.
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30.2 All oral or written statements, representations, promises, and
agreements of Seller and Buyer are merged into and superseded by this Agreement,
which alone fully and completely expresses their agreement, and this Agreement
contains all of the terms agreed upon by the parties with respect to the subject
matter hereof. This Agreement has been entered into after full investigation.
30.3 Except as expressly provided herein, none of the
representations, warranties, covenants, indemnities or other obligations of
Seller hereunder shall survive the Closing, and acceptance of the Deed and the
Ancillary Documents shall be deemed full and complete performance and discharge
of every agreement and obligation of Seller and Buyer hereunder.
30.4 This Agreement may not be altered, amended, changed, waived, or
modified in any respect or particular unless the same shall be in writing signed
by Seller and Buyer. No waiver by any party of any Breach hereunder shall be
deemed a waiver of any other or subsequent Breach.
30.5 The federal tax identification number of Seller is 22-3897379,
and the federal tax identification number of Buyer is 20-3096445.
30.6 Neither this Agreement nor any memorandum thereof shall be
recorded by Buyer. Any recordation or attempted recordation by Buyer of same
shall be a material default by Buyer hereunder.
30.7 The captions hereof are for convenience only and are not to be
considered in construing this Agreement.
30.8 This Agreement shall not be considered an offer or an
acceptance of an offer by Seller, and shall not be binding upon Seller until
executed and unconditionally delivered by Seller and Buyer. The "EFFECTIVE DATE"
of this Agreement, wherever mentioned in this Agreement, shall be the date of
this Agreement first above written.
30.9 This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument. This
Agreement may be executed by facsimile.
30.10 Section titles or captions in this Agreement are included for
purposes of convenience only and shall not be considered a part of this
Agreement in construing or interpreting any of its provisions. All references in
this Agreement to Sections shall refer to Sections of this Agreement unless the
context clearly otherwise requires.
30.11 The parties have participated jointly in the negotiation and
drafting of this Agreement. If any ambiguity or question of intent or
interpretation arises, no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
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30.12 Unless the context otherwise requires, when used in this
Agreement, the singular shall include the plural, the plural shall include the
singular, and all pronouns shall be deemed to refer to the masculine, feminine
or neuter, as the identity of the Person or Persons may require.
30.13 The parties do not intend that this Agreement shall confer on
any third party any right, remedy or benefit or that any third party shall have
any right to enforce any provision of this Agreement.
30.14 If a court in any Proceeding holds any provision of this
Agreement or its application to any Person or circumstance invalid, illegal or
unenforceable, the remainder of this Agreement, or the application or such
provision to Persons or circumstances other than those to which it was held to
be invalid, illegal or unenforceable, shall not be affected, and shall be valid,
legal and enforceable to the fullest extent permitted by law, but only if and to
the extent such enforcement would not materially and adversely frustrate the
parties' essential objectives as expressed in this Agreement. Furthermore, in
lieu of any such invalid or unenforceable term or provision, the parties intend
that the court reform this Agreement to add a provision as similar in terms to
such invalid or unenforceable provision as may be valid and enforceable, so as
to effect the original intent of the parties to the greatest extent possible.
30.15 For the purpose of complying with any information reporting
requirements or other rules and regulations of the IRS that are or may become
applicable as a result of or in connection with the transactions described in
this Agreement, including the IRS Reporting Requirements, Seller and Buyer
hereby designate and appoint the Title Company to act as the Reporting Person.
Buyer hereby acknowledges and accepts such designation and appointment and
agrees to fully comply with any IRS Reporting Requirements that are or may
become applicable as a result of or in connection with the transactions
described in this Agreement. Without limiting the responsibility and obligations
of Seller as the Reporting Person, Seller and Buyer hereby agree to comply with
any provisions of the IRS Reporting Requirements that are not identified therein
as the responsibility of the Reporting Person.
30.16 Any action to enforce any provision of this Agreement shall be
instituted exclusively in the Supreme Court of the State of New York, Nassau
County. The parties irrevocably and unconditionally waive and shall not plead,
to the fullest extent permitted by all legal requirements, any objection that
they may now or hereafter have to the jurisdiction of such courts over the
parties, the laying of venue or the convenience of the forum of any action
related to this Agreement that is brought in the Supreme Court of the State of
New York, Nassau County.
30.17 All Schedules to this Agreement shall constitute part of this
Agreement and shall be deemed to be incorporated in this Agreement by reference
and made a part of this Agreement as if set out in full at the point where first
mentioned. Any disclosure in the Schedules shall be deemed adequate to disclose
an exception to any representation or warranty made in this Agreement.
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30.18 This Agreement shall be governed by, and shall be construed
and enforced in accordance with, the laws of the State of New York without
giving effect to any conflict of law rule or principle of such state.
30.19 Each party shall be permitted to make a press release or other
pubic announcement regarding this Agreement or the transactions described in
this Agreement.
30.20 The party prevailing in any Proceeding shall be entitled to
recover from the non-prevailing party, in addition to any Damages the prevailing
party may have been awarded, all reasonable expenses that the prevailing party
may have incurred in connection with such Proceeding, including account fees,
attorneys' fees and expert witness' fees.
30.21 Seller and Buyer hereby waive trial by jury in any action,
Proceeding or counterclaim brought by any party against another party on any
matter arising out of or in any way connected with this Agreement.
30.22 Seller shall authorize its independent auditors to provide
Buyer, Buyer's affiliates and Buyer's auditors with such information (including
reasonable access to the books and records of the Premises, but not Seller's tax
returns, proprietary and intra-company information or agreements) that is
required to comply with the financial reporting requirements of the Securities
and Exchange Commission and the New York Stock Exchange. All such cooperation
and assistance shall be provided at Buyer's sole cost and expense and Buyer
hereby indemnifies and holds Seller harmless from any claims by its auditors for
the non-payment of such expenses by Buyer. Such cooperation shall include
allowing Buyer's auditors reasonable access to all audit work papers and
underlying data. Seller shall also provide to Buyer any and all Seller's letters
covering years 2003 (September through December), 2004 and 2005 (year to date)
to its outside auditors and required by its auditors to prepare Seller's audited
financial statements for such years. Seller shall request C&W to cooperate and
assist Buyer, at Buyer's expense, in Buyer's preparation of the 2005, 2004 (and
2003, to the extent not completed) tenant escalation payments. Notwithstanding
the foregoing, Buyer acknowledges and agrees that the delivery of the
information required by this Section by Seller or its auditors shall not be
construed to be a representation by Seller, or any expansion or modification of
the representations made by Seller in this Agreement, shall not be deemed to
extend the representations made by Seller to any third party and no such party
is authorized to rely thereon, and Seller shall not be required to review or
correct any information Buyer elects to utilize in any filings or reports to be
made by Buyer and Buyer agrees that no copies of Seller's letters to its
auditors or the contents thereof nor references thereto shall be contained
within any such report. Buyer hereby agrees to indemnify and hold Seller and its
members, officers, partners, agents, shareholders, affiliates and auditors
harmless from and against any and all costs, claims, liabilities, expenses,
damages, including reasonable attorneys' fees, arising from any filings or
reports made or provided by Buyer to any third party. This provision shall
survive the Closing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Seller and Buyer have duly executed this Agreement
on the date first above written.
SELLER: GALAXY LI ASSOCIATES LLC,
a Delaware limited liability company
By: Galaxy LI Mezz LLC, its sole member
By: Galaxy LI Junior Mezz LLC, its sole member
By: Galaxy LI Member LLC, its sole member
By: Meushar LLC, its managing member
By: _________________________
Name:
Title:
BUYER: RECKSON EAB LLC,
a Delaware limited liability company
By: Reckson Operating Partnership, L.P.,
its sole member
By: Reckson Associates Realty Corp.,
its general partner
By: _________________________
Name:
Title:
[Signatures Continue on the Following Page]