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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
_____________
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 15, 1997
SL GREEN REALTY CORP.
(Exact name of Registrant as specified in its Charter)
______________________________________________________
Maryland
(State of Incorporation)
1-13199 13-3956775
(Commission File Number) (IRS Employer Id. Number)
________________________ _________________________
70 West 36th Street 10018
New York, New York (Zip Code)
(Address of principal executive offices)
(212) 594-2700
(Registrant's telephone number, including area code)
Item 2. Acquisition or Disposition of Assets
As discussed in the prospectus dated August 14, 1997 of SL Green Realty
Corp. (the "Company") contained in the Company's registration statement on
Form S-11 (333-29329) relating to the Company's initial public offering of
common stock (the "IPO"), on August 1, 1997, Green 110E42 Realty LLC ("110
Realty LLC"), a limited liability company owned by Stephen L. Green, Chairman,
President and Chief Executive Officer of the Company, contracted to acquire
from an unaffiliated seller the land and building located at 110 East 42nd
Street in New York City for a purchase price of $30 million. On August 6,
1997, SL Green Operating Partnership, L.P. (the "Operating Partnership"),
of which the Company is the sole general partner, was granted an option by
110 Realty LLC, exercisable over a 10 year period, to acquire from 110 Realty
LLC its interest in 110 East 42nd Street at a price equal to the aggregate of
(i) sums paid by 110 Realty LLC for such interest, (ii) all financing and
other costs and expenses incurred in connection with the acquisition of
ownership by 110 Realty LLC of such interest and (iii) interest on all such
sums from the date of incurrence.
On September 3, 1997, the Board of Directors of the Company, including
all of the Independent Directors (i.e., the Directors of the Company who are
neither officers of the Company nor affiliated with the Company), acting in
its capacity as sole general partner of the Operating Partnership, authorized
the Operating Partnership to exercise the option on the terms described
above. The Operating Partnership subsequently acquired 110 East 42nd Street
on September 15, 1997 from 110 East 42nd Street Associates Limited Partnership
for an aggregate purchase price of $30.0 million in cash. The purchase price
was funded with proceeds from the Company's IPO. The Company based its
determination of the price to be paid on the expected cash flow, physical
condition, location, competitive advantages, existing tenancy and
opportunities to retain and attract additional tenants. The Company did not
obtain an independent appraisal on the Property.
110 East 42nd Street is an 18-story Class B office building containing
approximately 250,000 rentable square feet. The property is located in
midtown Manhattan on the south side of 42nd Street between Park and Lexington
Avenues, directly opposite the main entrance to Grand Central Terminal (with
additional frontage and entrances on the north side of 41st Street). As of
June 30, 1997, the building was 93% leased. Major tenants include Greenpoint
Savings Bank, Major League Soccer LLC and Morgan, Lewis & Bockius. The
building was completed in 1921 as the headquarters of the Bowery Savings Bank
and has been designated as a landmark structure by the Landmarks Commission of
the City of New York.
Item 7. Financial Statements and Exhibits
(a) and (b) Financial Statements of Property Acquired and Pro Forma
Financial Information
The financial statements and pro forma financial information required by
Item 7(a) and 7(b) are currently being prepared and it is therefor impractical
to provide this information on the date hereof. The Company will file the
required financial statements and information under cover of Form 8- K/A
as soon as practicable but in no event later than 60 days after the date
on which this Form 8-K was required to be filed.
(c) Exhibits
2.1 Option to Purchase 110 East 42nd Street dated as of August 6, 1997*
2.2 Assignment and Assumption Contract dated as of September 3, 1997
2.3 Contract of Sale between 110 East 42nd Street Associates Limited
Partnership and Green 110E42 Realty LLC dated as of August 1, 1997
_____________________
* Incorporated by reference to Exhibit 10.15 of the Company's
Registration
Statement on Form S-11 (333-29329).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
SL GREEN REALTY CORP.
By: /s/ David J. Nettina
______________________________
David J. Nettina
Executive Vice President, Chief Operating
Officer and Chief Financial Officer
Date: September 24, 1997
Exhibit 2.2
ASSIGNMENT AND ASSUMPTION OF CONTRACT
-------------------------------------
Agreement made as of this 3rd day of September, 1997, by and between
Green 110E42 Realty LLC, a New York limited liability company having an
address at 70 West 36th Street, New York, New York ("Assignor") and SL Green
--------
Operating Partnership, L.P., a Delaware limited partnership having an address
at 70 West 36th Street, New York, New York ("Assignee").
--------
RECITALS
--------
Assignor is the contract vendee under that certain agreement of sale
between Assignor, as purchaser, and 110 East 42nd Street Associates Limited
Partnership, as seller, dated as of August 1, 1997, covering the property and
interests more particularly therein (the "Contract").
--------
Pursuant to the Option to Purchase dated as of August 6, 1997 (the
"Option"), Assignor agreed, inter alia, to assign the Contract, to Assignee
------ ----------
and Assignee agreed to assume Assignor's obligations thereunder and with
respect thereof.
AGREEMENTS
----------
In consideration of the promises and conditions contained herein, and of
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns to Assignee, without warranty,
representation or recourse, all of its right, title and interest in, to and
under the Contract and to the Earnest Money Deposit (as defined therein).
2. Assignee hereby assumes the Contract and all of Assignor's
obligations under the Contract and Assignee agrees to indemnify Assignor
against and hold Assignor harmless from any and all costs, damages,
liabilities and expenses, including, without limitation, reasonable
attorney's fees, imposed upon or incurred by Assignor by reason of Assignee's
failure to perform the purchaser's obligations under the Contract arising
from and after the date of this Agreement.
3. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto, their successors in interest and assigns.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
ASSIGNOR:
GREEN 110E42 REALTY LLC, Seller
By:/s/ Stephen L. Green
-------------------------
Stephen L. Green
Member
ASSIGNEE:
SL GREEN OPERATING PARTNERSHIP, L.P.,
Purchaser
By: SL Green Realty Corp.,
its general partner
By:/s/ Stephen L. Green
------------------------
Stephen L. Green
President
Exhibit 2.3
110 EAST 42ND STREET ASSOCIATES LIMITED PARTNERSHIP,
Seller,
and
GREEN 110E42 REALTY LLC, Purchaser
---------------------------------
CONTRACT OF SALE
---------------------------------
As of August 1, 1997
--------------------------------------------------
Property:
Home Savings of America
New York Headquarters Condominium
110 East 42nd Street
New York, New York
TABLE OF CONTENTS
Article Page
- ------- ----
1. DEFINITIONS.......................................2
1.1 Definitions..................................2
1.2 Additional Terms.............................4
1.3 Construction.................................5
2. AGREEMENT TO SELL AND PURCHASE THE PROPERTY.......5
2.1 Property Interests...........................5
3. PURCHASE PRICE....................................5
3.1 Purchase Price...............................5
3.2 Personalty...................................6
4. PERMITTED EXCEPTIONS..............................6
4.1 Permitted Exceptions.........................6
5. CLOSING...........................................7
5.1 Closing Date.................................7
5.2 Actions......................................8
5.3 Adjournments.................................8
6. APPORTIONMENTS....................................8
6.1 Rents........................................8
6.2 Security Deposits, etc..................... 10
6.3 Additional Items........................... 10
6.4 Adjustment Statement....................... 12
6.5 Common Charges............................. 12
6.6 Survival................................... 12
7. DOCUMENTS TO BE DELIVERED AT THE CLOSING........ 12
7.1 Seller's Closing Documents................. 12
7.2 Purchaser's Closing Documents.............. 12
8. PROPERTY CONVEYED AS IS; OTHER REPRESENTATIONS AND WARRANTIES OF SELLER
16
8.1 No Other Representations................... 16
8.2 As Is...................................... 16
8.3 Seller's Representations and Warranties.... 17
8.4 Seller's Knowledge......................... 19
8.5 Survival................................... 19
8.6 Limitation on Claims....................... 19
8.7 Effect of Estoppel Letter.................. 20
9. REPRESENTATIONS AND WARRANTIESOF PURCHASER...... 20
9.1 Purchaser's Representation and Warranties.. 20
9.2 Survival................................... 21
10. CONDITIONS TO SELLER'S OBLIGATIONTO CLOSE TITLE.. 21
10.1 Seller's Conditions........................ 21
11. CONDITIONS TO PURCHASER'SOBLIGATION TO CLOSE TITLE..21
11.1 Purchaser's Condition...................... 21
12. RISK OF LOSSES .................................. 22
12.1 Termination................................ 22
12.2 Casualty; No Termination................... 22
12.3 Condemnation; No Termination............... 22
12.4 Waiver..................................... 22
13. OPERATION OF THE PROPERTY; COVENANTS............. 23
13.1 Operating Covenant......................... 23
13.2 Notice of Certain Events................... 23
13.3 Access..................................... 23
13.4 Negative Covenants......................... 23
13.5 Tax Certiorari Proceedings................. 24
13.6 Confidentiality............................ 24
13.7 Existing Mortgage.......................... 25
13.8 Estoppels.................................. 25
13.9 Employees.................................. 25
14. TITLE TO THE PROPERTY............................ 26
14.1 Title Commitment........................... 26
14.2 Title Defects.............................. 26
14.3 Merger of Obligations...................... 27
15. BROKERS, ETC..................................... 27
15.1 Seller's Representation.................... 27
15.2 Purchaser's Representation................. 28
15.3 Survival................................... 28
16. TERMINATION OF AGREEMENT; DEFAULT................ 28
16.1 Non-Default Termination.................... 28
16.2 Seller's Remedies.......................... 28
16.3 Purchaser's Remedies....................... 29
17. EXPENSES OF THE TRANSACTION...................... 29
17.1 Transfer of Taxes.......................... 29
17.2 Payment to Title Company................... 29
17.3 Purchaser's Costs.......................... 29
17.4 Mutual Costs............................... 29
18. NOTICES.......................................... 30
19. FURTHER ASSURANCES............................... 31
19.1 Further Assurances......................... 31
19.2 Books and Records.......................... 31
19.3 Survival................................... 31
20. GOVERNING LAW.................................... 31
21. CONSTRUCTION.................................... 31
22. ENTIRE AGREEMENT; NO THIRDPARTY BENEFICIARY, ETC. 32
23. WAIVERS; EXTENSIONS.............................. 32
24. CONSTRUCTION; SEVERABILITY....................... 32
25. ASSIGNMENT....................................... 33
26. COUNTERPARTS..................................... 33
27. NO RECORDING..................................... 33
28. ESCROW........................................... 33
28.1 Release of Escrow.......................... 33
28.2 Interest................................... 34
28.3 Dispute.................................... 34
28.4 Exculpation................................ 35
28.5 Representation of Seller................... 35
SCHEDULE OF EXHIBITS
Exhibit A Description of Land
Exhibit A-1 Description of Units
through A-5
Exhibit B List of Condominium Documents
Exhibit C Leases/Delinquency Schedule
Exhibit D Other Agreements
Exhibit E Permitted Exceptions
Exhibit F Intentionally Omitted
Exhibit G Form of Assignment and Assumption of Leases
Exhibit H Form of General Assignment and Assumption
Exhibit I Schedule of Employees
Exhibit J Notice to Tenants
Exhibit K Form of Bill of Sale
Exhibit L Form of Estoppel Certificate
CONTRACT OF SALE
----------------
THIS AGREEMENT ("Agreement") is made as of the 1st day of August,
1997 by and between 110 EAST 42nd STREET ASSOCIATES LIMITED PARTNERSHIP, a
Maryland limited partnership having an address c/o 110 Management
Corporation, 215 East 67th Street, New York, New York 10021 ("Seller") and
------
GREEN 110E42 REALTY LLC, a New York limited liability company, with an office
c/o SL Green Real Estate, 70 West 36th Street, New York, New York 10018-8007
("Purchaser").
---------
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Seller is the owner in fee simple of certain condominium
units known as the Bank Unit, the Annex Unit, New Commercial Unit A, New
Commercial Unit B and the Commercial Unit (collectively, the "Units"), each
more particularly described in Exhibits A-1 through A-5 annexed hereto and
------------ ---
made a part hereof, of the Home Savings of America New York Headquarters
Condominium (the "Condominium") constituted by the instruments described in
-----------
Exhibit B annexed hereto and made a part hereof (the "Condominium
- ---------
Documents");
WHEREAS, the Units, together with all of the undivided interests in
the Common Elements (as defined in the Condominium Documents) appurtenant to
each Unit, collectively constitute (i) the land more particularly described
on Exhibit A annexed hereto and made a part hereof (the "Land")
--------- ----
and (ii) the building and other improvements and fixtures constructed thereon
known by the street address of 110 East 42nd Street, New York, New York (the
"Building," and together with the Land, collectively, the "Property");
--------
WHEREAS, Seller desires to sell and convey the Property to
Purchaser, and Purchaser desires to purchase the same from Seller, subject to
and upon all of the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings in this Agreement, the parties hereto agree as follows:
1. DEFINITIONS.
-----------
1.1 Definitions. Wherever used in this Agreement, the
-----------
following terms shall have the meanings set forth in this Article l unless
the context of this Agreement clearly requires another interpretation:
"Board" - shall mean the board of managers constituted pursuant to
-----
the Condominium Documents.
"Business Day" - shall mean any day other than a Saturday, a Sunday
------------
or a day on which national banking associations are authorized or required to
close.
"Business Hours" - shall mean from 9:00 a.m. until 5:00 p.m on
--------------
Business Days.
"Closing" - shall mean the closing of the sale of the Property by
-------
Seller to Purchaser provided for in Article 5.
"Common Interest" - shall have the meaning set forth in the
---------------
Condominium Documents.
"Condominium Documents" - as defined in the recitals.
---------------------
"Exhibits" - shall mean the exhibits attached to this Agreement,
--------
each of which shall be deemed to form part of this Agreement whether or
not so stated in this Agreement.
"Governmental Authorities" - shall mean all agencies, bureaus,
------------------------
departments and officials of federal, state, county, municipal and local
governments and public authorities having or claiming jurisdiction over the
Property or any part thereof, or over Seller or Purchaser with respect to
this Agreement or the transactions contemplated herein.
"Impositions" - shall mean all real estate and personal property
-----------
taxes, general and special assessments, business improvement district
(BID) charges and assessments, water and sewer charges, license fees and
other similar fees and charges assessed or imposed by Governmental
Authorities upon the Property and/or Personalty.
"knowledge" or "notice" - shall mean actual knowledge of or written
--------- ------
notice received by Joseph Sokol or Silvia Kessel, without independent
investigation as to such matters.
"Leases" - shall mean all leases, licenses,
------
concessions and other forms of agreement, written or oral, however
denominated, to which Seller is a party or by which Seller is otherwise
bound, granting to any party or parties a possessory right (whether exclusive
or nonexclusive) with respect to any portion of the Property, and all
renewals, modifications, amendments, guaranties and other agreements
affecting the same (excluding subleases, concessions or license agreements
which may have been entered into by Tenants or subtenants of Tenants, as
sublessor, grantor or licensor, as the case may be). The documents currently
comprising the Leases are listed in Exhibit C.
---------
"Legal Requirements" - shall mean all statutes, laws, ordinances,
------------------
rules, regulations, executive orders and requirements of all
Governmental Authorities which are applicable to the Property or any part
thereof or the use or manner of use thereof, or to the owners, Tenants or
occupants thereof in connection with such ownership, occupancy or use.
"Other Agreements" - shall mean all contracts, agreements and
----------------
documents pertaining to the Property to which Seller or its
predecessor in interest is a party or by which Seller is bound and which are
listed in Exhibit D.
---------
"Other Charges" - shall mean all items which are included in Rents
-------------
other than fixed or minimum rents.
"Permitted Exceptions" - shall mean those items specified in
--------------------
Article 4 and Exhibit E, and all other matters affecting
---------
title to the Property which are hereafter accepted or waived by
Purchaser in writing.
"Personalty" - shall have the meaning specified in Section 2.1.2.
----------
"Recording Office" - shall mean the Office of the Register of the
----------------
City of New York, New York County.
"Rents" - shall mean all fixed, minimum, additional and escalation
-----
rents, porter's wage or operating expense charges, real estate tax
charges, common area maintenance (CAM) charges, cost of living adjustments,
overtime expense charges, parking charges, insurance charges, electricity
charges, cleaning charges, sprinkler charges, water charges, utility charges,
HVAC charges and any other amounts payable under the Leases.
"Significant Portion" - shall mean, in the case of taking by
-------------------
condemnation or eminent domain, 25% or more of the Property, and in
the case of damage or destruction by casualty, such portion as would cause
the cost to repair or replace the same to equal or exceed $5,000,000.
"Tenants" - shall mean the tenants, subtenants,
-------
licensees, concessionaires or other users or occupants under Leases.
"Title Company" - shall mean First American Title Insurance Company
-------------
of New York.
"Units" - shall have the meaning set forth in the recitals.
-----
"Violations" - shall mean violations of Legal Requirements with
----------
respect to the Property.
1.2 Additional Terms. The following additional terms,
----------------
wherever used in this Agreement, shall have the respective meanings specified
in the Articles or Sections of this Agreement set forth below after such
terms:
Terms Sections
----- --------
"Additional Deposit" Section 3.1
"Adjustment Point" Article 6
"Agreement" Preamble
"Building" Recitals
"Building Supplies" Section 6.3.9
"Closing Date" Section 5.1
"Condominium" Recitals
"Curable Liens" Section 14.2.2
"Cure Amount" Section 14.2.2
"Deed" Section 7.1.1
"Deposits" Section 3.1
"Earnest Money Deposit" Section 3.1
"Escrow Agent" Section 3.1.1
"Excepted Items" Section 2.1.2
"Intangible Personalty" Section 2.1.5
"Land" Recitals
"Leasing Costs" Section 6.3.5
"Owner's Policy" Section 14.1
"Property" Recitals
"Purchase Price" Section 3.1
"Purchaser" Preamble
"Purchaser's Objection
Notice" Section 14.1
"Seller" Preamble
"Title Commitment" Section 14.1
1.3 Construction. Except as otherwise
------------
specifically indicated, all references in this Agreement to Articles or
Sections refer to Articles or Sections of this Agreement, and all references
to Exhibits refer to Exhibits attached hereto. The words "herein," "hereof,"
"hereinafter," and words and phrases of similar import refer to this
Agreement as a whole and not to any particular Section or Article.
2. AGREEMENT TO SELL AND PURCHASE THE PROPERTY.
-------------------------------------------
2.1 Property Interests. Upon and subject to the terms and
------------------
conditions of this Agreement, Seller agrees to sell and convey to Purchaser
and Purchaser agrees to purchase from Seller, all of Seller's right, title
and interest in and to the following:
2.1.1 the Property;
2.1.2 all apparatus, machinery, devices, appurtenances,
equipment, furnishings and other items of personal property (other than
Intangible Personalty) owned by Seller and located at and used exclusively in
connection with the ownership, operation or maintenance of the Property (the
"Personalty"), excluding therefrom, however, the following items (the
----------
"Excepted Items"): all items not owned but leased by Seller;
--------------
all cash on hand, checks, money orders, accounts receivable (other than past
due rents) and prepaid postage in postage meters;
2.1.3 the Leases;
2.1.4 all assignable Other Agreements; and
2.1.5 all telephone numbers listed after the name of the
Property, all names, trade names, designations, logos and service marks, and
the appurtenant good will, used in connection with operation of the Property,
other than the names or variations thereof of Seller and/or Tenants, and all
similar items of intangible personal property owned by Seller and utilized
solely in connection with the operation of the Property (excluding items
which would be treated as Excepted Items under subsection 2.1.2 above)
(collectively, "Intangible Personalty").
---------------------
3. PURCHASE PRICE.
--------------
3.1 Purchase Price. The purchase price (the "Purchase
--------------
Price") payable by Purchaser to Seller hereunder shall be THIRTY MILLION
AND 00/100 Dollars ($30,000,000.00), which shall be payable as follows:
3.1.1 TWO MILLION AND 00/100 Dollars ($2,000,000.00)
(the "Earnest Money Deposit") to be delivered to Paul, Weiss,
---------------------
Rifkind, Wharton & Garrison (the "Escrow Agent")
------------
upon execution and delivery by Seller and Purchaser of this Agreement by good
check drawn by Purchaser subject to collection or official bank check, in
either case drawn on a bank which is a member of the New York Clearing House
Association, or by wire transfer of immediately available federal funds to an
account designated by Escrow Agent;
3.1.2 ONE MILLION AND 00/100 Dollars ($1,000,000.00)
(the "Additional Deposit"; the Additional Deposit, together with the Earnest
------------------
Money Deposit, to the extent paid, collectively, the "Deposits") to be
delivered to Escrow Agent upon exercise by Purchaser of its right to adjourn
the closing pursuant to Section 5.1, by good check drawn by Purchaser subject
to collection or official bank check, in either case drawn on a bank which is
a member of the New York Clearing House Association, or by wire transfer of
immediately available federal funds to an account designated by Escrow Agent;
and
3.1.3 The balance of the Purchase Price, to Seller, by
wire transfer of immediately available federal funds to an account of Seller
to be designated by notice given to Purchaser, or at Seller's option by
unendorsed certified check drawn on a bank which is a member of The New York
Clearing House Association, at the Closing.
3.2 Personalty. Seller and Purchaser agree that no portion
----------
of the Purchase Price shall be allocable to Personalty or Intangible
Personalty.
4. PERMITTED EXCEPTIONS.
--------------------
4.1 Permitted Exceptions. The Property is sold and shall be
--------------------
conveyed subject to the following matters ("Permitted Exceptions"):
--------------------
4.1.1 the matters set forth in Exhibit E annexed hereto
---------
and made a part hereof;
4.1.2 liens for Impositions which are not due and
payable as of the Closing Date or which are apportioned in accordance with
Article 6;
4.1.3 liens for Impositions which are paid directly by
Tenants in occupancy on the Closing Date to the entity imposing same;
4.1.4 any state of facts that (i) would be shown on an
accurate survey of the Property or (ii) a physical inspection of the Property
would show; provided that the same do not materially impair the value of the
Property or its current use;
4.1.5 zoning, subdivision, environmental, building and
all other Legal Requirements (including, without limitation, the provisions
of the New York City Administrative Code, Section 25, Chapter 3) applicable
to the ownership, use or development of, or the right to maintain or operate,
the Property, or have space therein used and occupied by Tenants, presently
existing or enacted prior to the Closing;
4.1.6 all Violations;
4.1.7 consents by any former owner of the Property for
the erection of any structure or structures on, under or above any streets,
highways, roads or avenues which the Property may abut;
4.1.8 all Leases in effect on the date of this
Agreement, any extensions or renewals of such Leases exercised by Tenants
pursuant to options contained therein and any Leases, extensions or renewals
hereafter entered into in accordance with the terms of this Agreement;
4.1.9 rights of Tenants in occupancy of the Property on
the Closing Date as tenants only;
4.1.10 financing statements and security agreements made
by any Tenant;
4.1.11 mechanics liens, lis pendens and notices of
commencement of action against Seller (or which affect Seller's interest in
the Property), provided that the Title Company shall provide affirmative
insurance reasonably satisfactory to Purchaser insuring against the
collection of such items out of the Property;
4.1.12 the standard printed exclusions from coverage
contained in the ALTA owner's title policy (1990 form); and
4.1.13 any liens, encumbrances or other title exceptions
created or suffered by Purchaser or approved or waived by Purchaser.
5. CLOSING.
-------
5.1 Closing Date. The Closing shall be held at 10:00 a.m.
------------
local time on September 15, 1997 at the offices of Paul, Weiss, Rifkind,
Wharton & Garrison, 1285 Avenue of the Americas, New York, New York or at the
offices of Purchaser's lender or Purchaser's underwriter, or on such other
date, or at such other time and place, which may be agreed upon by the
parties. Purchaser shall have a one-time right to adjourn the Closing to a
date not later than October 15, 1997; provided, that Purchaser shall deliver
notice to Seller on or before September 8, 1997 and shall deliver the
Additional Deposit to Escrow Agent on or before September 15, 1997. Time
shall be of the essence in respect of Purchaser's notice, deposit and closing
obligations under this Section 5.1. Purchaser and Seller hereby authorize
their respective counsel to execute and deliver in the names of Purchaser and
Seller any agreement(s) confirming an accelerated or deferred Closing Date or
changed place of Closing agreed to by the parties.
5.2 Actions. At the Closing, the parties shall deliver and
-------
accept all executed documents and instruments and take all other action
required of them pursuant to this Agreement, unless otherwise provided in
this Agreement.
5.3 Adjournments. Nothing contained in this Article 5 shall
------------
be construed as impairing or abrogating any right granted elsewhere in this
Agreement to either party unilaterally to extend the Closing Date.
6. APPORTIONMENTS.
--------------
At the Closing (except where a later date is specifically
provided for in this Article), the parties shall adjust the items set forth
below as of 11:59 P.M. on the day preceding the Closing Date (the "Adjustment
----------
Point"), and the net amount thereof shall be paid by Purchaser to
- -----
Seller, or credited by Seller to Purchaser against the balance of the
Purchase Price, as the case may be, at the Closing.
6.1 Rents. Rents as and when collected, so that with respect
-----
to any particular item included in Rents, Seller shall receive an amount
equal to that proportion of the total payment of Rents which the number of
days in the payment period occurring up to and including the Adjustment Point
bears to the entire number of days in such period and Purchaser shall receive
the balance.
6.1.1 Any Rents collected by Purchaser (which, for
purposes of this Section 6.1.1, shall include Rents collected by any managing
agent acting for Purchaser) subsequent to the Closing (whether accruing prior
to or subsequent to the Adjustment Point) shall be adjusted as of the
Adjustment Point, and any portion thereof properly allocable to periods prior
to the Adjustment Point, net of costs of the collection properly allocable
thereto, if any, shall be paid by Purchaser to Seller promptly after the
collection thereof by Purchaser, but subject to the further provisions of
this Section 6.4 in the case of Rents due prior to the Adjustment Point. To
the extent that any Rents are received by Seller or its managing agent from
and after the Closing (whenever the same shall have accrued), Seller shall or
shall cause its managing agent to deliver such Rents to Purchaser promptly
after receipt.
6.1.2 At the Closing, Seller shall deliver to Purchaser
a list of all Tenants that are delinquent in payment of Rents as of the
Adjustment Point, which list shall set forth the amount of each such delin-
quency, the period to which each such delinquency relates and the nature of
the amount due, itemizing separately fixed monthly rent, escalation charges,
electric charges, charges for tenant services, charges for overtime services
and other charges, if any. The first amounts collected by Purchaser from
each delinquent Tenant, net of costs of collection, if any, shall be deemed
to be in payment of Rents for the month in which the Closing occurs, subject
to apportionment hereunder, next in payment of delinquent Rents (or the
specific components of Rents) owed by such Tenant which are not more than one
(1) month in arrears as of the first day of the month in which the Closing
occurs, as set forth in such list, next in payment of Rents then due on
account of any month after the month in which the Closing occurs and finally
in payment of delinquent Rents (or the specific components of Rents) which
are more than one (1) month in arrears as of the first day of the month in
which the Closing occurs, as set forth on such list. Any amounts collected
by Purchaser from each delinquent Tenant which, in accordance with the
preceding sentence, are allocable to the portion of the month in which the
Closing occurs prior to the Adjustment Point or to any prior month, net of
costs of collection properly allocable thereto, if any, but without any
deduction for any management fee or similar charge, shall be paid promptly by
Purchaser to Seller. Costs of collection shall be apportioned in proportion
to the amount of the collection payable to each party as provided herein,
except that if costs of collection are expended with no resulting collection,
each party will bear and pay those costs of collection incurred by it.
Purchaser shall use reasonable efforts to bill and collect any delinquencies,
and the amount thereof, as, when and to the extent collected by Purchaser,
shall be remitted by Purchaser to Seller, net of costs of collection, if any.
6.1.3 Following the Closing and for so long as any
delinquencies shall be owed to Seller, Purchaser shall submit or cause to be
submitted to Seller, within thirty (30) days after the end of each calendar
quarter ending on or before December 31, 1998, and thereafter at Seller's
request, a statement which sets forth all collections made by Purchaser from
the Tenants which owe such delinquencies. Seller shall have the right from
time to time on reasonable prior notice following the Closing until
December 31, 1999, at Seller's expense, to examine and audit so much of the
books and records of Purchaser as relate to such delinquencies in order to
verify the collections reported by Purchaser in such quarterly statements.
6.1.4 Nothing contained in this Section 6.1 shall be
deemed to prohibit Seller, at its own expense, from instituting any actions
or proceedings in its own name against any Tenant after the Closing that has
vacated the applicable space by eviction, surrender or otherwise, in order to
collect the amount of any delinquencies due in whole or in part to Seller
from such Tenant. Seller shall give notice to Purchaser of any such action
or proceeding, and Purchaser shall be entitled to join in any such action or
proceeding. Purchaser agrees not to waive or settle any delinquency owed in
whole or in part to Seller without the prior written consent of Seller, not
to be unreasonably withheld or delayed. If Seller shall maintain such
separate action and Purchaser shall decline to participate in such action,
all amounts collected shall be retained by Seller.
6.2 Security Deposits, etc. All advance rental deposits or
-----------------------
payments made or deposited by any Tenant prior to the Closing Date and
applicable to periods of time subsequent to the Closing, and all security
deposits paid or deposited by any Tenant prior to the Closing Date, including
interest accrued thereon, if any, shall be turned over or credited to
Purchaser at the Closing, together with an accounting. Purchaser shall
indemnify, defend and hold Seller harmless from and against any and all
claims, losses, costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements, resulting from any claim made against
Seller or its partners by any Tenant of the Property in connection with the
security and other deposits transferred or credited to Purchaser. Seller
shall indemnify, defend and hold Purchaser harmless from and against any and
all claims, losses, costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements, resulting from any claim made
against Purchaser by any Tenant arising from Seller's misapplication of any
security and other deposits; provided, that (i) Purchaser shall assert any
claim under this indemnification within thirty (30) days after receipt of
notice of a Tenant claim and (ii) Purchaser shall not be entitled to make any
such claim for indemnification with respect to any Tenant to the extent that
such Tenant's security deposit turned over or credited to Purchaser at
Closing shall be confirmed in an estoppel certificate delivered by such
Tenant. Seller agrees not to release or return any security deposits in
whole or in part except as may be required by law or by the terms of any
Lease. Nothing in this Section 6.2 is intended to prevent Seller from
applying any such security deposit to remedy any default (including a failure
to pay rent) of any Tenant that has vacated its premises by eviction,
surrender or otherwise, prior to the Closing, and to the extent the same is
applied to rent, it shall be apportioned in accordance with Section 6.1.
6.3 Additional Items. At the Closing, the following
----------------
additional items shall be apportioned between the parties hereto as of the
Adjustment Point, with Seller to be obligated for amounts apportioned to the
period through and including the Adjustment Point and Purchaser to be
obligated for amounts apportioned to the period following the Adjustment
Point:
6.3.1 Impositions payable by Seller in respect of the
Property on the basis of the fiscal year or fiscal years for which the same
are imposed, whether or not yet due and payable as of the Closing Date. In
the case of special assessments payable in installments, the installment for
the fiscal year in which the Adjustment Point occurs will be apportioned as
provided above.
6.3.2 Water and sewer charges, if any, payable by Seller
on the basis of the period or periods for which the same are payable. If
there are water meters on the Property or any portion thereof Seller shall
furnish readings to a date not more than thirty (30) days prior to the
Closing Date, and the unfixed meter charges and the unfixed sewer charges, if
any, based thereon for the intervening time shall be apportioned on the basis
of such last readings.
6.3.3 Utilities and fuel payable by Seller, including,
without limitation, electricity, steam and gas; provided, however that Seller
shall endeavor to have the meters for such utilities read the day on which
the Adjustment Point occurs and will pay the bills rendered to it on the
basis of such readings, in which event no adjustment shall be made in respect
of such utility. If Seller does not obtain such a meter reading with respect
to any such utility, the adjustment therefor shall be made on the basis of
the most recently issued bills therefor which are based on meter readings not
earlier than thirty (30) days prior to the Adjustment Point. Seller shall
seek refunds of any cash security deposits and shall cancel any security
bonds held by any utility companies, and Purchaser shall be obligated to make
its own arrangements for deposits with utility companies.
6.3.4 All costs and expenses of entering into the Leases
including, without limitation, leasing commissions, tenant improvement costs
and allowances, legal fees and the like ("Leasing Costs"), but only
-------------
with respect to Leases entered into between the date hereof and the Closing
Date (or renewals of existing leases exercised during such period) in
accordance with this Agreement, which Leasing Costs shall be amortized over
the portion of the applicable term during which fixed rent shall be payable
under the applicable Lease and apportioned as of the Adjustment Point.
Leasing Costs with respect to Leases entered into prior to the date hereof
(but not with respect to any renewals of such Leases not heretofore
exercised) shall be the sole responsibility of Seller, and Leasing Costs with
respect to Leases and any renewals or extensions of existing Leases entered
into from and after the Closing shall be the sole responsibility of
Purchaser.
6.3.5 Regular (i.e. periodic) charges payable by Seller
under the Other Agreements.
6.3.6 Wages, payroll taxes, welfare benefits, accrued
vacation pay and other fringe benefits for all on-site employees of Seller
listed on Exhibit I annexed hereto and made a part hereof. From and after
---------
the Closing, Purchaser shall hire and assume responsibility for all such
employees, and shall assume any employment agreements with respect thereto.
6.3.7 Fees for governmental licenses and permits
required for the operation and maintenance of the Property that are
transferred to Purchaser.
6.3.8 The cost of all materials, supplies and other
items ("Building Supplies") purchased and paid for by Seller for use at the
-----------------
Property in the ordinary course of business which are not in use or in
damaged or unusable condition as of the date of the Closing, and the cost of
all Building Supplies ordered for the Property in the ordinary course of
business and not received by the date of the Closing, the purchase orders for
which shall be assumed by Purchaser at the Closing. At the Closing, Pur-
chaser shall reimburse Seller for all such Building Supplies previously paid
for by Seller and shall assume the costs of all Building Supplies ordered and
not paid for by Seller. An inventory of Building Supplies and the purchase
orders, where applicable, shall be delivered to Purchaser at the Closing.
6.3.9 Any other items of income or expense of the
Property, on a cash basis, which, in accordance with generally accepted
accounting principles and business practices, should be apportioned between
Seller and Purchaser.
6.4 Adjustment Statement. Seller will deliver to Purchaser
--------------------
prior to the Closing a copy of a proposed adjustment statement, showing all
adjustments to be made at the Closing. If Purchaser agrees with the figures
set forth in such proposed adjustment statement, Purchaser shall notify
Seller that Purchaser will execute and return counterparts of such adjustment
statement at the Closing; otherwise the parties shall seek immediately to
reconcile any difference. To the extent that there is an error or omission
in or any additional information available with respect to any of the adjust-
ments made and the same is discovered following the Closing, the parties
agree to rectify the same as promptly as possible following such discovery.
6.5 Common Charges. Notwithstanding anything to the contrary
--------------
contained herein, Seller shall retain any claims Seller may have against Home
Savings of America, FSB ("HSA") in respect of common charges arising prior to
the Closing Date. Seller shall indemnify, defend and hold Purchaser harmless
from and against any and all claims made by HSA for overpayment of common
charges in respect of the Property.
6.6 Survival. The provisions of this Article 6 shall
--------
survive the Closing.
7. DOCUMENTS TO BE DELIVERED AT THE CLOSING.
----------------------------------------
7.1 Seller's Closing Documents. At or prior to the Closing,
--------------------------
Seller will deliver or cause to be delivered to Purchaser each of the
instruments and documents listed in this Section 7.1, executed and
acknowledged where appropriate, but none of the documents shall be deemed
delivered or any other action taken until all Closing deliveries and actions
are complete:
7.1.1 A bargain and sale deed without covenant against
grantor's acts (the "Deed"), in the statutory form required by Section 339-o
----
of the New York Real Property Law, conveying the fee simple title to each of
the Units from Seller to Purchaser, subject only to the Permitted Exceptions.
7.1.2 An assignment and assumption, in the form of
Exhibit G, to Purchaser of all of Seller's right, title and interest in, to
- ---------
and under all the Leases and the security deposits (including all accrued
interest thereon, if any) held by Seller pursuant to the Leases.
7.1.3 An assignment and assumption, in the form of
Exhibit H, to Purchaser of all of Seller's right, title and interest in, to
- ---------
and under all of the following, if any: (i) Other Agreements, including all
of Seller's right, title and interest in and to any security deposits, if
any, under any of such Other Agreements which will inure to the benefit of
Purchaser, (ii) all warranties and guaranties of manufacturers, suppliers and
contractors, to the extent the same are assignable, and (iii) all permits of
Governmental Authorities, and licenses and approvals of private utilities and
others, required for or necessary to the operation and maintenance of the
Property, to the extent the same are assignable.
7.1.4 A Bill of Sale in form of Exhibit K transferring
---------
to Purchaser all of Seller's right, title and interest in and to the
Personalty and the Intangible Personalty.
7.1.5 Copies of the Leases.
7.1.6 Copies of all Other Agreements.
7.1.7 A notice to each Tenant, in the form of
Exhibit J, notifying each of the sale of the Property to Purchaser as of the
- ---------
Closing Date.
7.1.8 A schedule, in the form of Exhibit C, setting
---------
forth (i) the name of each Tenant which is delinquent in the payment of Rents
or has prepaid Rents beyond the month in which the Closing shall occur,
indicating in each case the nature and amount of the delinquent or prepaid
Rents and aged to indicate by thirty (30) day categories the length of the
delinquency and (ii) for each applicable Tenant, the amount and form of its
security deposit.
7.1.9 An affidavit that Seller is not a "foreign
person" within the meaning of Section 1445 of the Internal Revenue Code.
7.1.10 Counterparts of the adjustment statement showing
all adjustments in respect of the Purchase Price to be made at the Closing.
7.1.11 All transfer tax returns which Seller is
required by law to execute and acknowledge and to deliver, either individu-
ally or together with Purchaser, to any Governmental Authority as a result of
the sale, together with checks made payable to the appropriate Governmental
Authority in the required amounts.
7.1.12 A direction to Escrow Agent notifying it of the
Closing and directing that the Earnest Money Deposit (and the Additional
Deposit, if paid), with interest thereon, shall be delivered to Seller.
7.1.13 With respect to any security deposit in the form
of a letter of credit, the original letter of credit together with such
documentation as shall be required on the part of Seller to cause the issuing
bank to amend such letter of credit (or to issue a new letter of credit) to
name Purchaser as the beneficiary thereunder.
7.1.14 A certificate of Seller that the representations
and warranties of Seller set forth in Section 8.3 hereof are true, correct
and complete in all material respects as of the Closing Date, subject to
changes resulting from the operation of the Property between the date hereof
and the Closing Date in accordance with the provisions of Article 13.
7.1.15 Resignations or terminations of all individuals
serving on the Board.
7.1.16 All warranties and guaranties in possession of
Seller, if any, of manufacturers, suppliers and contractors in effect at the
date of Closing Date.
7.1.17 A copy of the resolutions of the general partner
of Seller, certified by the secretary or an assistant secretary of such
party, which authorize (i) the transactions contemplated by this Agreement,
and (ii) the execution of the documents, instruments and agreements to be
executed and delivered by Seller, together with an incumbency certificate of
the general partner of Seller setting forth the name(s) and title(s) of the
person(s) executing and delivering such documents, instruments and agreements
on behalf of Seller.
7.1.18 A copy of the filed certificate of limited
partnership of Seller and of the general partner of Seller, together with a
good standing certificate for the general partner of Seller from the
appropriate officer of the state of incorporation of such general partner,
dated within thirty (30) days of the Closing Date.
7.1.19 All records and files which are in the possession
or control of Seller relating to the current operation and maintenance of the
Property, including, without limitation, tax bills, water, sewer, utility and
fuel bills, payroll records, billing records for Tenants, repair and
maintenance records and the like which affect or relate to the Property. The
parties agree to cooperate so that, to the extent practical, deliveries of
background records at or prior to the Closing which Purchaser desires to have
delivered to it will be identified to the satisfaction of the parties at the
Closing without actual delivery and will be deemed delivered although in fact
retained in the management office located at the Property.
7.1.20 Reasonable and customary title affidavits and
other documentation and information required by the Title Company in order to
issue the Owner's Policy and/or a mortgagee policy to Purchaser's lender.
7.1.21 All other instruments and documents, if any, to
be executed, acknowledged and delivered by Seller pursuant to any of the
other provisions of this Agreement.
7.1.22 Possession of the Property in the condition
required under this Agreement.
7.2 Purchaser's Closing Documents. At or prior to the
-----------------------------
Closing, Purchaser will deliver or cause to be delivered to Seller or such
other parties indicated below each of the payments, documents and instruments
listed in this Section 7.2, such instruments and documents to be executed and
acknowledged where appropriate:
7.2.1 The balance of the Purchase Price as set forth in
subsection 3.1.3 hereof, together with any other sums which are payable to
Seller at the Closing.
7.2.2 Counterparts of each of the instruments and
documents listed in subsections 7.1.2, 7.1.3, 7.1.7, 7.1.10, 7.1.11 and
7.1.12.
7.2.3 A copy of the resolutions of Purchaser and any
constituent entity of Purchaser, as reasonably requested by Seller, certified
to by the secretary or an assistant secretary of Purchaser or such
constituent entity, as the case may be, which authorize (i) the transactions
contemplated by this Agreement, and (ii) the execution of the documents,
instruments and agreements to be executed and delivered by Purchaser by the
person executing and delivering the same on behalf of Purchaser, together
with an incumbency certificate of Purchaser setting forth the name(s) and
title(s) of the person(s) executing and delivering such documents,
instruments and agreements on behalf of Purchaser.
7.2.4 A certificate of Purchaser that the
representations and warranties of Purchaser set forth in Section 8.2 and
Article 9 hereof are true, correct and complete in all material respects as
of the Closing Date.
7.2.5 A good standing certificate for Purchaser from the
Secretary of the State of New York, dated within thirty (30) days of the
Closing Date.
7.2.6 All other instruments and documents, if any, to be
executed, acknowledged and delivered by Purchaser pursuant to any of the
other provisions of this Agreement.
8. PROPERTY CONVEYED AS IS; OTHER
REPRESENTATIONS AND WARRANTIES OF SELLER.
----------------------------------------
8.1 No Other Representations. Purchaser acknowledges that,
------------------------
except as expressly set forth in this Agreement and in the documents and
instruments delivered at the Closing, neither Seller nor any agent or
representative or purported agent or representative of Seller has made, and
Seller is not liable for or bound in any manner by, any express or implied
warranties, guaranties, promises, statements, inducements, representations or
information pertaining to the Property or any part thereof, the physical
condition, environmental matters, zoning, income, expenses or operation
thereof or of the Personalty or the Intangible Personalty, the uses which can
be made of the same or any other matter or thing with respect thereto,
including, without limitation, any existing or prospective Leases or Other
Agreements. Without limiting the foregoing, Purchaser acknowledges and
agrees that, except as expressly set forth in this Agreement and in the
documents and instruments delivered at the Closing, Seller is not liable for
or bound by (and Purchaser has not relied upon) any verbal or written
statements, representations, real estate brokers' "set-ups" or any other
information respecting the Property furnished by Seller or any broker,
employee, agent, consultant or other person representing or purportedly
representing Seller. Purchaser is aware that the New York City Landmarks
Preservation Commission has designated as a landmark the exterior of the
Building and portions of the interior thereof, thereby subjecting the same to
the terms and conditions of the New York City Administrative Code, Section
25, Chapter 3, entitled "Landmarks Preservation and Historic Districts" and
any rules and regulations promulgated thereunder.
8.2 As Is. Purchaser represents that it has inspected,
-----
examined and investigated the Property, the physical and environmental
conditions thereof, the uses thereof, the compliance of the Property with
Legal Requirements (including, without limitation, zoning matters), the
Leases, the Other Agreements, and the books and records kept by Seller in
connection therewith to its satisfaction, that it has investigated, analyzed
and appraised the value and the profitability thereof and that, unless
otherwise expressly provided in this Agreement, it is purchasing the Property
"as is" at the date of this Agreement, subject to reasonable wear and tear
and changes in the ordinary course of business between the date hereof and
the Closing Date and changes resulting from the operation of the Property
between the date hereof and the Closing Date in accordance with the
provisions of Article 13. Without limiting the generality of the foregoing,
Purchaser acknowledges and agrees that Seller shall have no obligation to
comply with any notes or notices with respect to Violations against or
affecting the Property, whenever issued, which have attached to the Property
pursuant to the Administrative Code of the City of New York or otherwise, and
Purchaser shall at Closing accept the Property subject thereto without
recourse to Seller. Notwithstanding the foregoing, Purchaser shall not be
required to accept the Property subject to any notes or notices of Violations
which are issued after the date hereof and prior to the Closing Date relating
to work at the Property first performed by Seller or any Tenant after the
date hereof; provided, that the same shall have a material adverse effect on
the value of the Property or the current use thereof. Except as expressly
provided herein, Purchaser shall assume the risk that adverse matters,
including, without limitation, construction defects and adverse physical and
environmental conditions, may not have been revealed by Purchaser's
investigations, and Purchaser hereby waives, relinquishes and releases Seller
(and Seller's partners, employees and agents) from and against any and all
claims, demands, causes of action (including, without limitation, causes of
action in tort), losses, damages, liabilities, costs and expenses (including,
without limitation, attorneys' fees and court costs) of any and every kind or
character, known or unknown, which Purchaser might have asserted or alleged
against Seller (and Seller's partners, employees and agents) at any time by
reason of or arising out of any latent or patent construction defects or
physical conditions, violations of any applicable laws (including, without
limitation, any environmental laws and ADA) and, except as expressly provided
herein, any and all other acts, omissions, events, circumstances or matters
regarding the Property. Purchaser agrees that should any cleanup,
remediation or removal of hazardous substances or other environmental
conditions on the Property be required after the date of Closing, such clean-
up, removal or remediation shall be the responsibility of and shall be
performed at the sole cost and expense of Purchaser. The foregoing shall not
be deemed to require Purchaser to indemnify Seller for any third-party claims
against Seller in respect of any such environmental conditions arising from
the acts or omissions of Seller.
8.3 Seller's Representations and Warranties. Seller hereby
represents and warrants to Purchaser as follows:
8.3.1 Seller is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of
Maryland; it has the power, right, authority and legal capacity to execute
and deliver this Agreement and the other documents, instruments, certificates
and agreements required to be executed and delivered by it hereunder and to
enter into and perform the transactions contemplated hereby.
8.3.2 All resolutions, authorizations and other actions
required to be taken by or on the part of the partners of Seller which are
necessary to approve or authorize the execution of this Agreement by Seller
and the consummation of the transactions contemplated herein have been
obtained and taken.
8.3.3 Neither the entry into nor the performance of this
Agreement by Seller will (i) violate, conflict with, result in a breach
under, or constitute a default under, any partnership agreement, indenture,
contract, permit, judgment, decree or order to which Seller is a party or by
which Seller is bound, or (ii) require the consent of any third party other
than as has already been obtained or is otherwise specifically treated in
this Agreement.
8.3.4 Seller is not a "foreign person" within the
meaning of Section 1445 of the Internal Revenue Code.
8.3.5 Exhibit C annexed hereto is a true, correct and
---------
complete list of (i) all of the Leases in effect on the date of this
Agreement, true correct and complete copies of which have been delivered to
Purchaser, and (ii) to Seller's actual knowledge, all subleases, concessions
or license agreements of all or any portion of the Property entered into by
Tenants or subtenants of Tenants (as sublessor, grantor or licensor, as the
case may be). To Seller's actual knowledge, as of the date hereof, there are
no leases, licenses, or other rights of occupancy of any portion of the
Property other than the Leases and other instruments set forth in Exhibit C.
Except pursuant to an assignment of leases and rents granted by Seller to its
mortgagee(s), Seller has assigned none of its right, title or interest in, to
or under any of the Leases. Except as set forth in Exhibit C, all work
previously required to be performed by Seller under the Leases in effect on
the date hereof has been completed and fully paid for, and all construction
reimbursements, tenant improvement allowances and similar payments to be made
by Seller under the Leases in effect on the date hereof have been paid in
full or will be paid in full prior to Closing. Seller has neither given nor
received any notice of default with respect to any of the Leases that remains
uncured. Seller is holding the security deposits with respect to each Lease
set forth in Exhibit C.
---------
8.3.6 Exhibit D annexed hereto is a true, correct and
complete list of all Other Agreements in effect on the date of this
Agreement, true correct and complete copies of which have been delivered to
Purchaser.
8.3.7 Exhibit B annexed hereto is a true, correct and
---------
complete list of the Condominium Documents setting forth, with respect to
such Condominium Documents, the date thereof and of each modification,
amendment or supplement thereto.
8.3.8 No condemnation, eminent domain or similar
proceeding in which Seller has been served with process or of which Seller is
otherwise aware is pending with respect to all or any part of the Property,
and Seller has no knowledge that any such proceeding is threatened or
contemplated.
8.3.9 The payroll schedule attached hereto as Exhibit
-------
I lists all employees presently employed by Seller or its managing agent at
the Property (other than Joseph Sokol and Carmen Gonce), and the information
contained therein is accurate in all material respects as of the date set
forth therein, and, except as otherwise set forth in such schedule, all such
employees are covered by a union contract described in Exhibit D.
---------
8.3.10 All brokerage commissions payable by reason of
the Leases in effect on the date hereof have been paid in full or will be
paid by Seller when due (but not on account of any renewals or extensions
thereof pursuant to options exercised after the Closing Date).
8.3.11 Seller has no knowledge of any litigation pending
or threatened in writing against Seller that would, if adversely determined,
have a material adverse effect on Seller's ability to perform its obligations
under this Agreement or on the use or the value of the Property. Seller has
not instituted any action or proceeding against any current Tenant, and
Seller has no knowledge of any action or proceeding instituted by any current
Tenant against Seller, that is presently pending in any court or other
judicial or administrative venue.
8.3.12 Seller has not granted to any third party any
purchase option, right of first refusal or other right to purchase the
Property or any parties thereof.
8.4 Seller's Knowledge. To the extent any representations
------------------
and warranties made herein by Seller are based on Seller's knowledge or refer
to notices received by Seller, the same shall be deemed to have been made
without independent investigation regarding the facts contained therein.
8.5 Survival. The representations and
--------
warranties of Purchaser set forth in Sections 8.1 and 8.2 hereof, and the
representations and warranties of Seller set forth in subsections 8.3.1
through 8.3.4 hereof shall survive the Closing without limitation as to time.
The representations and warranties of Seller set forth in subsections 8.3.5
through 8.3.11 shall survive the Closing for a period of six (6) months. The
representation of Seller set forth in Section 8.3.12 shall terminate upon
Closing.
8.6 Limitation on Claims. Claims by Purchaser following
--------------------
the Closing based on a breach of a warranty or representation shall be made
by written notice to Seller within six (6) months following the Closing, time
being of the essence. Each such notice shall set forth in reasonable detail
the nature of the claim or claims and the provision of this Agreement claimed
to be breached thereby. In the event that Seller and Purchaser are unable to
agree upon the resolution of any such claim, Purchaser shall institute legal
proceedings in respect thereof against Seller within six (6) months following
the date of Purchaser's written notice to Seller, time being of the essence.
If Purchaser fails in any case to give written notice to Seller of any such
claim or to institute legal proceedings in respect of any such unresolved
claim within the time period as aforesaid, then such claim or claims shall be
deemed waived and shall lapse. Seller shall not be liable to Purchaser, nor
shall the Purchaser make a claim in any legal proceedings, for the first
$125,000 of any damages suffered by Purchaser in the aggregate on account of
any breaches of representation or warranty by Seller hereunder.
8.7 Effect of Estoppel Letter. To the extent that an
-------------------------
estoppel letter is provided to Purchaser which sets forth information with
respect to any item as to which Seller has made a representation or warranty,
then Seller's representation and warranty with respect to such information
will thereafter be null and void and of no further force or effect and
Purchaser shall rely on the information set forth in such estoppel letter.
9. REPRESENTATIONS AND WARRANTIES
OF PURCHASER.
-------------------------------------
9.1 Purchaser's Representations and Warranties. Purchaser
------------------------------------------
hereby represents and warrants to Seller as follows:
9.1.1 Purchaser is a limited liability company duly
organized and validly existing under the laws of the State of New York;
Purchaser has the power, right, authority and legal capacity to execute and
deliver this Agreement and the other documents, instruments, certificates and
agreements required to be executed and delivered by it hereunder and to enter
into and perform the transactions contemplated hereby.
9.1.2 All consents, authorizations and other actions
required to be taken by or on the part of Purchaser which are necessary to
approve or authorize the execution of this Agreement by Purchaser and
consummation of the transactions contemplated herein have been obtained and
taken.
9.1.3 Neither the entry into nor the performance of this
Agreement by Purchaser will (i) violate, conflict with, result in a breach
under, or constitute a default under, any operating agreement, statute,
regulatory restriction, indenture, contract, permit, judgment, decree or
order to which Purchaser is a party or by which Purchaser is bound, or
(ii) require the consent of any Governmental Authority or other third party
other than as has already been obtained or is otherwise specifically treated
in this Agreement.
9.2 Survival. The representations and warranties of
--------
Purchaser set forth in Section 9.1 shall survive the Closing without
limitation as to time.
10. CONDITIONS TO SELLER'S OBLIGATION
TO CLOSE TITLE.
---------------------------------------
10.1 Seller's Conditions. The obligation of Seller to close
-------------------
title under this Agreement is expressly conditioned upon the fulfillment by
and as of the Closing Date of each of the conditions listed below; provided
that Seller, at its election, may waive all or any of such conditions:
10.1.1 Purchaser shall have paid to Seller the balance
of the Purchase Price as provided in Article 3 hereof, less any credits
granted to Purchaser and together with other amounts payable by Purchaser to
Seller, if any, pursuant to the terms of this Agreement.
10.1.2 Purchaser shall have delivered or caused to be
delivered at Closing all documents and executed counterparts of documents and
instruments required by this Agreement to be delivered by Purchaser and shall
have taken all other action and fulfilled all other conditions required of
Purchaser under this Agreement.
10.1.3 All representations and warranties of Purchaser
set forth in Sections 8.1 and 8.2 and Article 9 shall be true and correct in
all material respects on and as of the Closing Date as if made on and as of
such date.
11. CONDITIONS TO PURCHASER'S
OBLIGATION TO CLOSE TITLE.
---------------------------
11.1 Purchaser's Conditions. The obligation of Purchaser to
----------------------
close title under this Agreement is conditioned upon the fulfillment by and
as of the Closing Date of each of the conditions listed below; provided that
Purchaser, at its election, may waive all or any of such conditions:
11.1.1 Seller shall have delivered or caused to be
delivered at Closing all of the documents and instruments required by this
Agreement to be delivered by Seller and shall have taken all other action and
fulfilled all other conditions required of Seller under this Agreement.
11.1.2 The representations and warranties of Seller set
forth in Section 8.3 shall be true and correct in all material respects on
and as of the Closing Date as if made on and as of such date, subject,
however, to changes resulting from the operation of the Property between the
date hereof and the Closing Date in accordance with the provisions of Arti-
cle 13.
12. RISK OF LOSS.
------------
12.1 Termination. If, prior to the Closing Date, all or a
-----------
Significant Portion of the Property is taken by eminent domain, or is the
subject of a pending taking in which title to the Property which has not yet
vested in the condemnor, or is destroyed or damaged by fire or other
casualty, Seller shall notify Purchaser of such fact. Purchaser shall have
the option to terminate this Agreement upon notice to Seller given not later
than thirty (30) days after receipt of Seller's notice. If this Agreement is
terminated as aforesaid, the Earnest Money Deposit (and the Additional
Deposit, if paid) and all interest accrued thereon shall be returned to
Purchaser and thereafter neither Seller nor Purchaser shall have any further
rights or obligations to the other hereunder except with respect to those
obligations hereunder which expressly survive termination.
12.2 Casualty; No Termination. In the case of fire or other
------------------------
casualty, if Purchaser does not timely elect to terminate this Agreement as
aforesaid, or if less than a Significant Portion of the Property is damaged,
then provided that Seller shall at the time of such casualty provide evidence
reasonably satisfactory to Purchaser that it has maintained property
insurance coverage in an amount that is not materially less than the amount
of such insurance coverage maintained on the date hereof, Seller shall not be
obligated to repair such damage or destruction but (x) Seller shall assign
and turn over to Purchaser all of the insurance proceeds net of reasonable
collection costs (or, if such have not been awarded, all of its right, title
and interest therein) payable with respect to such fire or other casualty and
(y) the parties shall proceed to Closing pursuant to the terms hereof without
modification of the terms of this Agreement and Seller shall credit against
the Purchase Price at Closing an amount equal to Seller's insurance policy
deductible, if any.
12.3 Condemnation; No Termination. In case of a taking, if
----------------------------
Purchaser does not timely elect to terminate this Agreement as aforesaid, or
if less than a Significant Portion of the Property is taken, there shall be
no abatement of the Purchase Price and, after deducting or providing for an
allocation or reimbursement to Seller of Seller's reasonable costs and
expenses incurred in collecting any award, Seller shall assign all remaining
awards or any rights to collect awards to Purchaser on the Closing Date.
12.4 Waiver. Purchaser and Seller each hereby waive the New
------
York Vendor and Purchaser Risk Act (GOL-5-1311) and agree that the provisions
of this Article 12 shall govern the respective rights and obligations of
Purchaser and Seller with respect to the subject matter of this Article 12.
13. OPERATION OF THE PROPERTY; COVENANTS.
------------------------------------
13.1 Operating Covenant. Seller agrees to operate and
------------------
maintain the Property from and after the date hereof until the Closing Date
in accordance with the current practices of Seller, except as otherwise
specifically provided in this Agreement. Without limiting the generality of
the foregoing, (i) Seller shall maintain in full force and effect until the
Closing Date all insurance policies currently maintained with respect to the
Property, (ii) Seller shall provide or cause to be provided all services with
respect to the Property and the Tenants that are now required to be provided
under the Leases and (iii) Seller shall maintain and keep the Property,
including mechanical equipment, in a condition at least as good as its
condition on the date hereof, reasonable wear and tear excepted.
13.2 Notice of Certain Events. Seller shall notify Purchaser
------------------------
of any of the following matters which occur between the date of this
Agreement and the Closing Date: (i) notices of Violations affecting the
Property received by Seller, (ii) notices of default received or given by
Seller with respect to the Leases or any material Other Agreements,
(iii) litigation commenced by Seller, or litigation of which Seller has
received notice commenced against Seller, with respect to the Property,
(iv) notices of condemnation proceedings against all or any portion of the
Property received by Seller, and (v) casualty losses to the Property.
13.3 Access. Subject to Section 13.6, between the date
------
hereof and the Closing Date, Purchaser and its authorized representatives,
agents and employees shall have the right, from time to time, upon reasonable
advance notice to Seller, to enter upon and pass through the Property during
Business Hours to examine and inspect the same, and shall have the right from
time to time upon reasonable advance notice to Seller during Business Hours
to examine and inspect Seller's books, records and files pertaining to
maintenance and/or operating expenses of the Property, and Seller agrees to
make the same reasonably available at Seller's offices or at the office of
the managing agent for the Property. In the event of any discrepancy between
information contained in the Exhibits and information in the underlying
documents identified in the Exhibits which are made available to Purchaser,
the information contained in the documents shall be deemed to control and to
be known to Purchaser. Purchaser agrees that it shall not unreasonably
interfere with the Tenants or with Seller's operation of the Property as
provided herein prior to the Closing Date.
13.4 Negative Covenants. From and after the date hereof
------------------
until the Closing Date, Seller shall not, without the prior written consent
of Purchaser, not to be unreasonably withheld, delayed or conditioned,
(i) enter into any new Other Agreements for the Property except those which
can be canceled by Purchaser on not more than thirty (30) days' notice,
(ii) amend, modify or terminate or consent to an amendment, modification or
termination of the Condominium Documents, or (iii) amend, modify or extend
the term of any Lease (except pursuant to the terms thereof) or enter into
any new Lease for the Property or terminate any Lease except by reason of the
default of the Tenant thereunder.
13.5 Tax Certiorari Proceedings. Seller (or Seller's
--------------------------
predecessor in interest) has heretofore filed applications for the reduction
of the assessed valuation of the Property and/or instituted certiorari
proceedings to review such assessed valuations for tax years 1997-98 and
prior years. Seller shall have sole control over such proceedings until the
Closing. After the Closing, Seller shall control the proceedings relevant to
any prior tax years and Purchaser shall control the proceedings for the tax
year in which the Closing shall occur (currently the 1997-98 tax year).
Purchaser shall have no rights in respect of the proceedings for prior tax
years. With respect to the tax year in which the Closing shall occur,
Purchaser shall have the right to withdraw, compromise and/or settle any such
proceeding and to take, conduct, withdraw and/or settle appeals, but any such
withdrawal, compromise or settlement shall be subject to the prior written
consent of Seller, not to be unreasonably withheld or delayed. Any tax
savings or refund for any year or years prior to the tax year in which the
Closing occurs shall belong to Seller. Any tax savings or refund for the tax
year in which the Closing occurs shall be prorated between Seller and
Purchaser (based on the number of days of ownership during such tax year)
after deducting all fees and expenses relevant to the proceeding, including
legal fees. Purchaser and Seller shall cooperate in facilitating the
settlement of any such tax proceeding and/or the collecting of any amount of
any tax refund. The provisions of this Section 13.5 shall survive the
Closing.
13.6 Confidentiality. From and after the date hereof and
---------------
continuing through the Closing Date (or without limitation as to time, if
there is no Closing), (i) Purchaser shall treat all information disclosed to
or otherwise obtained by Purchaser in connection with its review of the
Property and the transaction in a confidential manner, shall only use such
information for the purpose of evaluating the Property, and shall not
disclose any such information to any third party except as set forth below;
and (ii) neither Purchaser nor Seller shall announce or disclose publicly the
terms or provisions hereof or the existence or status of the transaction
contemplated hereby, without the prior written approval of the other party.
Notwithstanding the foregoing, such disclosure shall be permissible (x) if
required by law, (y) with respect to any information that shall be or become
available to the general public or (z) by either party to its attorneys,
accountants, permitted successors or assigns, lenders, financial advisors,
investors or any other advisor or consultant, provided that such parties are
apprised of the foregoing restrictions and agree in writing to abide by them.
Purchaser agrees that Seller shall be entitled to damages and/or equitable
relief, including injunction, in the event of any breach of the provisions of
this Section 13.6.
13.7 Existing Mortgage. Seller shall, at Purchaser's
-----------------
sole cost and expense, cooperate with Purchaser in attempting to have
Seller's mortgages encumbering the Property assigned to Purchaser's mortgagee
or designee rather than having the same satisfied at Closing.
13.8 Estoppels. Promptly after the execution and
---------
delivery of this Agreement, Seller shall request from all Tenants of the
Property, and shall use reasonable efforts (but without spending any money on
account thereof) to obtain from each such Tenant, an estoppel certificate in
the form or containing the information required under each Tenant's
respective Lease, or if no such form or information is required, in the form
annexed hereto as Exhibit L. In addition to the foregoing, Seller
---------
shall at such time request from each Tenant an estoppel certificate in the
form annexed hereto as Exhibit L. If, on or before September 8, 1997,
---------
Seller shall have failed to deliver estoppel certificates duly executed by
Home Savings of America, FSB, Greenpoint Bank (with respect to each of its
Leases), Major League Soccer, LLC, Morgan, Lewis & Bockius and Worldcom
(LDDS) in the form or containing information required under such Tenant's
respective Lease and disclosing no material default by Seller or the
respective Tenant, then Purchaser shall have the right, to be exercised by
notice to Seller on or before September 12, 1997, to terminate this
Agreement, in which case the provisions of Section 16.1 shall be applicable.
If Purchaser shall fail to deliver such notice of termination, then Purchaser
shall have no further right to terminate this Agreement with respect to the
estoppel certificates, and Seller shall continue to use reasonable efforts
(but without spending any money on account thereof) to obtain such estoppel
certificates from all Tenants as aforesaid. Purchaser acknowledges and
agrees that it shall not contact any Tenant for any purpose until the earlier
to occur of September 12, 1997 and the delivery by such Tenant of an estoppel
certificate in accordance with this Section 13.8.
13.9 Employees. Without the prior written
---------
consent of Purchaser in each instance, between the date of the Agreement and
the date of Closing, Seller shall not hire (or permit the hiring of) any
person in connection with the management, operation or maintenance of the
Property either as an additional employee or as a replacement for an existing
employee, except that such consent shall be given by Purchaser if, in the
case of a replacement of an existing employee, such replacement is necessary
for the proper management, operation or maintenance of the Property at the
level that same is being managed, operated and maintained as of the date of
this Agreement.
14. TITLE TO THE PROPERTY.
---------------------
14.1 Title Commitment. Purchaser has obtained a commitment
----------------
(the "Title Commitment") from the Title Company for an owner's policy of
title insurance (the "Owner's Policy") in the amount of the Purchase Price,
and has caused the Title Company to deliver a copy thereof to Seller's
counsel. Within five (5) days after receipt of any update to the Title
Commitment, Purchaser shall deliver to Seller a notice (a "Purchaser's
-----------
Objection Notice") specifying those exceptions to title
- ----------------
contained the applicable update that were not contained in the original Title
Commitment which in Purchaser's reasonable judgment have a materially adverse
effect on the use, operation or ownership of the Property or the value
thereof, are not Permitted Exceptions and are not acceptable to Purchaser.
14.2 Title Defects.
-------------
14.2.1 Seller shall be entitled, on notice to Purchaser
given on or prior to the Closing Date, to adjourn the Closing Date one or
more times, for a period not to exceed sixty (60) days in the aggregate, to
enable Seller to take such action as may be required to cause the Title
Company to issue the Owner's Policy in accordance with the provisions of this
Agreement. If Seller does not so elect to adjourn the Closing, or if after
such adjournment the Title Company is not prepared to issue the Owner's
Policy in accordance with the provisions of this Agreement, then Purchaser
may terminate this Agreement by written notice to Seller and Escrow Agent,
whereupon Seller shall return the Earnest Money Deposit (and the Additional
Deposit, if paid) to Purchaser (net of any amounts due to Seller under this
Agreement) and neither party shall have any further obligations under this
Agreement except for those provisions which specifically survive the
termination hereof.
14.2.2 (a) If Seller elects to adjourn the Closing as
provided above, this Agreement shall remain in effect for the period or
periods of adjournment in accordance with its terms. In no event, however,
shall Seller be required to take any action or to commence any proceeding or
take any other steps to remove any defect in or objection to title; provided,
however, that if any update to the Title Commitment indicates the existence
of one or more liens or encumbrances ("Curable Liens") which are in liqui-
dated amounts and can be removed or discharged by payment of a sum of money
which is not in excess of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) (the "Cure Amount") in the aggregate, and if
-----------
such removal or discharge can reasonably be expected to be accomplished prior
to the initial scheduled Closing Date or within a period of sixty (60) days
thereafter or such longer period of time as Purchaser may approve, Seller
agrees to take such action as is reasonably required in order to remove or
discharge such Curable Liens and, if required, to adjourn the Closing Date
for the period required for such purpose. Seller will be deemed to have
satisfied the foregoing requirement with respect to any Curable Liens if the
Title Company will issue or bind itself to issue the Owner's Policy without
additional premium (unless Seller shall pay such premium) which will insure
Purchaser against collection of such Curable Liens or enforcement thereof
against the Property.
(b) Notwithstanding the provisions of Sections 14.2.1
and 14.2.2(a), Seller shall, without limitation as to the amount thereof,
cause to be removed at or prior to the Closing all (i) mortgages, assignments
of leases and rents and financing statements entered into by Seller whether
prior to or after the date hereof, (ii) mechanics' liens arising as a result
of work performed at the Property by or on behalf of Seller (but not any
Tenant), (iii) judgments or tax liens (other than real estate tax liens)
against Seller which are liens against the Real Property and (iv) any other
encumbrance voluntarily placed on the Real Property by Seller from and after
the date hereof without Purchaser's consent.
14.2.3 Notwithstanding the foregoing provisions of
Section 14.2, Purchaser may at any time accept such title as Seller is able
to deliver, without reduction of the Purchase Price or any credit or
allowance on account thereof or any claim against Seller; provided, that
Purchaser shall be entitled to a credit against the Purchase Price, in
respect of any Curable Liens that Seller shall have failed to remove or
satisfy, in an amount equal to the Cure Amount less any amounts theretofore
expended by Seller to remove or satisfy such Curable Liens.
14.3 Merger of Obligations. The acceptance of the Deed by
---------------------
Purchaser from Seller shall be deemed full performance on the part of Seller
of all of its obligations under this Agreement (including all promises,
agreements, conditions, representations and warranties), except as to any
such obligation which is specifically stated in this Agreement to survive the
Closing or is expressly contained in the documents delivered at Closing.
15. BROKERS, ETC.
-------------
15.1 Seller's Representation. Seller warrants and represents
-----------------------
to Purchaser that Seller dealt with no broker, finder or like agent who might
claim a commission or fee in connection with the transactions contemplated in
this Agreement or on account of introducing the parties, the preparation or
submission of brochures, the negotiation or execution of this Agreement or
the Closing of the transactions contemplated herein. Seller agrees to
indemnify, defend and hold harmless Purchaser and its successors and assigns
from and against any and all claims, losses, liabilities and expenses,
including, without limitation, reasonable attorneys' fees, disbursements and
charges, arising out of any claim or demand for commissions or other
compensation for bringing about this transaction by any broker, finder or
similar agent or party, who claims to have dealt with Seller or any affiliate
thereof in connection with this transaction.
15.2 Purchaser's Representation. Purchaser warrants and
--------------------------
represents to Seller that neither Purchaser, nor any affiliate thereof, has
dealt with any broker, finder or like agent who might claim a commission or
fee in connection with the transactions contemplated in this Agreement or on
account of introducing the parties, the preparation or submission of
brochures, the negotiation or execution of this Agreement or the closing of
the transactions contemplated herein. Purchaser agrees to indemnify, defend
and hold harmless Seller and its successors and assigns from and against any
and all claims, losses, liabilities and expenses, including, without
limitation, reasonable attorneys' fees, disbursements and charges, arising
out of any claim or demand for commissions or other compensation for bringing
about this transaction by any broker, finder or similar agent or party who
claims to have dealt with Purchaser or any affiliate thereof in connection
with this transaction.
15.3 Survival. The provisions of this Article 15 shall
--------
survive the Closing or termination of this Agreement.
16. TERMINATION OF AGREEMENT; DEFAULT.
---------------------------------
16.1 Non-Default Termination. If this Agreement shall
-----------------------
terminate or be terminated (i) by mutual consent of Seller or Purchaser,
(ii) pursuant to the express provisions of Sections 12.1, 13.8 or 14.2.1, or
(iii) because one or more conditions to a party's obligation to close title
as set forth in Articles 10 and 11 shall fail to be fulfilled or waived by
such party and such failure is not due to the default by either party of its
obligations hereunder, then upon such termination Escrow Agent shall return
the Earnest Money Deposit (and the Additional Deposit, if paid) to Purchaser,
together with any interest thereon. Except for the foregoing, and for those
obligations hereunder that are specifically stated to survive termination
hereof, following the termination of this Agreement neither party shall have
any obligations of any nature to the other hereunder or by reason hereof.
16.2 Seller's Remedies. If at the Closing Date the
-----------------
conditions to the obligation of Seller to close title as set forth in Article
10 hereof have not been fulfilled on account of the default of Purchaser
hereunder, and such conditions have not been waived by Seller, and the
Closing shall not occur, then Seller, as its sole and exclusive remedy, shall
be entitled to receive and retain the Earnest Money Deposit (and the
Additional Deposit, if paid) deposited with Escrow Agent together with all
interest, if any, earned thereon, as liquidated damages for loss of a bargain
and not as a penalty. Purchaser and Seller agree that such liquidated
damages are based in part upon the following damages which Seller shall
suffer on account of a default by Purchaser and the failure of the Closing to
occur, which damages Purchaser and Seller agree are incapable of an exact
determination of amount: the removal of the Property from the real estate
market during the period of this Agreement and the loss of the possibility of
obtaining a new purchaser during such time at a higher amount; the
possibility of being unable to find a new purchaser for the amount of the
Purchase Price after Purchaser's default; various restrictions related to the
management and maintenance of the Property during the period of this Agree-
ment, including without limitation restrictions regarding entering into new
Leases; and the inconvenience of relisting the Property for lease and/or
sale.
16.3 Purchaser's Remedies. If at the Closing Date the
--------------------
conditions to the obligation of Purchaser to close title as set forth in
Article 11 hereof have not been fulfilled on account of the willful default
of Seller hereunder, and such conditions have not been waived by Purchaser,
and the Closing shall not occur, then Purchaser, for itself and its
successors and assigns, hereby agrees that its sole remedy shall be to seek
specific performance of this Agreement (together with recovery of its costs
in such action), and hereby waives all rights to pursue an action for damages
of any kind against Seller or any partner of Seller under or in connection
with this Agreement.
The provisions of this Article 16 shall survive the termination of
this Agreement.
17. EXPENSES OF THE TRANSACTION.
---------------------------
17.1 Transfer Taxes. Seller shall pay, and shall indemnify
--------------
Purchaser in respect of, the New York State Real Estate Transfer Tax and the
New York City Real Property Transfer Tax imposed on the transfer of the
Property.
17.2 Payment to Title Company. Seller shall deliver to the
------------------------
Title Company at Closing certified checks in the respective amounts of the
New York City Real Property Transfer Tax and the New York State Real Estate
Transfer Tax payable by Seller pursuant to the terms of Section 17.1, payable
to the order of the appropriate governmental officer; provided that Seller
may direct that Purchaser deliver such checks directly to the Title Company
and the amount of such checks shall be credited against the balance of the
Purchase Price due to Seller.
17.3 Purchaser's Costs. Purchaser shall pay, and shall
-----------------
indemnify Seller in respect of (i) all title insurance and survey charges in
connection with the transfer of the Property and (ii) all recording and
filing fees and charges in connection with such transfer.
17.4 Mutual Costs. Each party shall pay the fees, charges
------------
and disbursements of its own counsel, accountants and other advisors in
connection with the negotiation and preparation of this Agreement and the
Closing.
The provisions of this Article 17 shall survive the Closing (or
with respect to Sections 17.3 and 17.4, the termination) of this Agreement.
18. NOTICES.
-------
Except as otherwise provided in this Agreement, all notices,
demands, requests, consents, approvals or other communications which are
required or permitted to be given under this Agreement or which either party
desires to give with respect to this Agreement shall be in writing and shall
be deemed to have been properly given or served if (i) delivered by hand,
(ii) sent by registered or certified mail, postage prepaid, return receipt
requested, or (iii) sent by reputable overnight courier service, in each case
addressed to the party to be notified as follows (or to such other address as
such party shall have specified at least ten (10) days prior thereto by like
notice):
if to Seller, to:
Seller's address first set forth above
Attn: Silvia Kessel
with copies to:
Metromedia Company
One Meadowlands Plaza
East Rutherford, New Jersey 07073-2137
Attn: Hadley E. Feldman, Esq.
and
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attn: Steven Simkin, Esq.
if to Purchaser, to:
c/o S.L. Green Real Estate
70 West 36th Street
New York, New York 10018
Attn: Benjamin P. Feldman, Esq.
with copies to:
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel
153 East 53rd Street, 35th Floor
New York, New York 10022
Attn: Robert J. Ivanhoe, Esq.
Notices shall be deemed given when delivered by hand, or if
delivered only by mail, three (3) days after mailing or one (1) business day
after deposit with an overnight courier service, in each case with failure to
accept delivery to constitute delivery for purposes hereof.
19. FURTHER ASSURANCES.
------------------
19.1 Further Assurances. Each of Seller and Purchaser
------------------
agrees, at any time and from time to time after the Closing, to execute,
acknowledge, where appropriate, and deliver such further instruments and
documents and to take such other action as the other party may reasonably
request in order to carry out the intents and purposes of this Agreement,
provided that (i) such request is made by notice given within two (2) years
of the Closing Date and (ii) the documents requested to be delivered or
actions requested to be taken impose no additional liability on the party
delivering or taking the same than is imposed under this Agreement or in the
documents delivered at the Closing. If required by the party receiving the
request, the party making the request will bear the reasonable cost involved.
19.2 Books and Records. For a period of six (6) years
-----------------
following the Closing Date, (a) Purchaser shall, upon request of Seller in
connection with any audit or regulatory process by any Government Authority,
make available to Seller, its representatives and/or such Governmental
Authority, upon reasonable advance notice to Purchaser and at Seller's
expense, at the Property or at Purchaser's regular place of business in New
York City, the books and records delivered by Seller to Purchaser hereunder
at the Closing for the purposes of inspection and/or copying and (b) Seller
shall, at Purchaser's request, at reasonable times and upon reasonable prior
notice, make available to Purchaser any books and records relating to the
Property not so delivered to Purchaser at Closing.
19.3 Survival. The provisions of this Article
--------
19 shall survive the Closing.
20. GOVERNING LAW.
-------------
This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of New York applicable to contracts
negotiated, executed and to be performed wholly within such State.
21. CONSTRUCTION.
------------
Each party hereto acknowledges that it was represented by counsel
in connection with this Agreement and the transactions contemplated herein,
that it and its counsel reviewed and participated in the preparation and
negotiation of this Agreement and the documents and instruments to be
delivered hereunder, and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or the documents and instru-
ments to be delivered hereunder. Headings at the beginning of each Article
and Section are not a part of this Agreement. Whenever required by the
context of this Agreement, the singular shall include the plural and the
masculine shall include the feminine and vice versa. All Exhibits referred
to in this Agreement are attached and incorporated herein by reference, and
any capitalized term used in any Exhibit which is not defined in such Exhibit
shall have the meaning attributed to such term in the body of this Agreement.
In the event the date on which Purchaser or Seller is required to take any
action under the terms of this Agreement is not a Business Day, the action
shall be taken on the next succeeding Business Day.
22. ENTIRE AGREEMENT; NO THIRD
PARTY BENEFICIARY, ETC.
-------------------------------
This Agreement, including all Exhibits, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior understandings, if any, with respect thereto. The
parties have made no representations with respect to the subject matter of
this Agreement and have given no warranties with respect to the subject
matter hereof except as expressly provided herein and/or expressly provided
in the documents delivered at Closing. This Agreement may not be modified,
changed, supplemented or terminated, nor may any obligations hereunder be
waived, except by written instrument signed by the party to be charged or by
its agent duly authorized in writing or as otherwise expressly permitted
herein. The parties do not intend to confer any benefit hereunder on any
person, firm or corporation other than the parties hereto and their permitted
assigns. The provisions of this Article 22 shall survive the Closing or
termination of this Agreement.
23. WAIVERS; EXTENSIONS.
-------------------
No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof or of any other agreement or provision herein contained. No
extension of time for performance of any obligation or act shall be deemed an
extension of the time for performance of any other obligations or acts. The
provisions of this Article 23 shall survive the Closing or termination of
this Agreement.
24. CONSTRUCTION; SEVERABILITY.
--------------------------
If any provision of this Agreement shall be deemed invalid, it
shall be deemed severed from this Agreement and the remainder of this
Agreement shall be interpreted as if such invalid provision had not been
contained herein.
25. ASSIGNMENT.
----------
This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns. Purchaser
shall not have the right, without the prior written consent of Seller, to
assign this Agreement or its rights hereunder, in whole or in part, to any
other person; provided, that Purchaser may, without the prior written consent
of Seller, assign this Agreement to (i) a real estate investment trust
presently in the process of being formed with the real estate assets of S.L.
Green Properties, Inc. and its affiliates or (ii) a partnership or limited
liability company, formed for the purpose of financing the acquisition of the
Property for contribution to said real estate investment trust or its
affiliate, of which Stephen L. Green or any entity wholly-owned by Stephen L.
Green shall be a general partner or managing member, as the case may be, and
in which Stephen L. Green shall, directly or indirectly, retain an ownership
interest of not less than ten percent (10%). No such assignment shall be
effective unless and until Purchaser shall deliver to Seller written notice
of the same, together with an instrument of assumption duly executed and
acknowledged by Purchaser's assignee.
26. COUNTERPARTS.
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This Agreement may be executed in counterparts, each of which (or
any combination of which, signed by all of the parties) shall be deemed an
original, but all of which, taken together, shall constitute one and the same
instrument.
27. NO RECORDING.
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The parties agree that neither this Agreement nor any memorandum or
notice hereof shall be recorded.
28. ESCROW.
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28.1 Release of Escrow. The Deposits shall be held in escrow
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by the Escrow Agent until the earliest of (a) the Closing, on which date the
Deposits shall be released to Seller; (b) fifteen (15) days after the Escrow
Agent shall have delivered to the non-sending party a copy of the notice sent
by Seller or Purchaser stating that this Agreement has been terminated and
that the party so notifying the Escrow Agent is entitled to the Deposits,
following which period the Deposits shall be (i) delivered to Seller, in the
case of a notice from Seller stating that Seller is entitled thereto, or
(ii) delivered to Purchaser, in the case of a notice from Purchaser stating
that Purchaser is entitled thereto; provided, in each case, however, that
within such fifteen (15) day period the Escrow Agent does not receive either
a notice containing contrary instructions from the other party hereto or a
court order restraining the release of all or any portion of the Deposits; or
(c) a joint notice executed by Seller and Purchaser is received by the Escrow
Agent, in which event the Escrow Agent shall release the Deposits in
accordance with the instructions therein contained. The Escrow Agent shall
reasonably promptly deliver a duplicate copy of any notice received by it in
its capacity as Escrow Agent to Seller and Purchaser.
28.2 Interest. The Deposits shall be held by the Escrow
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Agent in an interest-bearing money market or bank account (not separately
maintained for this transaction), but the Escrow Agent shall not be liable
for any loss incurred by reason of any such investments. If the Closing
occurs, any interest earned or accrued on the proceeds of the Deposits shall
be paid to Seller. In the event that there is no Closing hereunder and the
Deposits and interest thereon are to be paid to Seller pursuant to the terms
of this Agreement, such payment shall be made to Seller. Otherwise, the
Deposits and all interest accrued thereon shall be paid to Purchaser.
28.3 Dispute. In the event that (i) the Escrow Agent shall
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have received a notice containing contrary instructions or a court order as
provided for in Section 28.1 hereof and within the time therein prescribed,
or (ii) any other disagreement or dispute shall arise between the parties
hereto resulting in adverse claims or demands being made for the Deposits
and/or interest thereon, if any, whether or not litigation has been
instituted, then and in any such event the Escrow Agent shall refuse to
comply with any claims or demands on it and continue to hold the Deposits and
the interest thereon, if any, as applicable, until the Escrow Agent receives
either (a) a written notice signed by both Seller and Purchaser directing the
disposition of the Deposits and the interest thereon, if any, as applicable,
or (b) a final order of a court of competent jurisdiction, entered in a
proceeding in which Seller, Purchaser and the Escrow Agent are named as
parties, directing the disposition of the Deposits and the interest thereon,
if any, as applicable, in either of which events the Escrow Agent shall then
dispose of the Deposits and the interest thereon, if any, as applicable, in
accordance with said direction. The Escrow Agent shall not be or become
liable in any way to any person or entity for its refusal to comply with any
such claims or demands until and unless it has received a direction of the
nature described in (a) or (b) above. Upon the taking by the Escrow Agent of
any of the actions described in (a) and (b) above, the Escrow Agent shall be
released of and from all liability hereunder. Notwithstanding the foregoing
provisions of this Section 28.3, the Escrow Agent shall have the following
right in the circumstances described in subdivision (i) or (ii) above:
(y) if the Escrow Agent shall have received a written notice signed by either
Seller or Purchaser advising that litigation between Seller and Purchaser
over entitlement to the Deposits or any portion thereof and/or the interest
thereon, if any, has been commenced, the Escrow Agent may, on written notice
to Seller and Purchaser, deposit the Deposits, and the interest thereon, if
any, as applicable, with the clerk of the court in which such litigation is
pending, or (z) the Escrow Agent may, on written notice to Seller and
Purchaser, take such affirmative steps as it may, at its option, elect in
order to terminate their duties as escrow agent hereunder, including, but not
limited to, the deposit of the Deposits and interest thereon, if any, as
applicable, with a court of competent jurisdiction and the commencement of an
action in interpleader. Upon the taking by Escrow Agent of either of the
actions described in (y) or (z) above, the Escrow Agent shall be released of
and from all liability hereunder except for any previous willful misconduct
or gross negligence.
28.4 Exculpation. Escrow Agent shall not be liable for any
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error in judgment or for any act done or omitted by it in good faith, or for
any mistake of fact or law and shall not incur any liability in acting upon
any signature, notice, request, waiver, consent, receipt or other paper or
document in good faith believed by the Escrow Agent to be genuine and is
released and exculpated from all liability hereunder except as aforesaid or
for willful misconduct or gross negligence. The sole responsibility of the
Escrow Agent hereunder shall be to hold and release the Deposits and the
interest thereon, if any, in accordance with the provisions of this
Agreement. The Escrow Agent shall be entitled to consult with counsel in
connection with its duties hereunder. Purchaser and Seller jointly and
severally agree to reimburse the Escrow Agent for its reasonable costs and
expenses, including attorneys' fees (either paid to retained attorneys or
representing the fair value of legal services rendered by the Escrow Agent to
itself), incurred as a result of any dispute or litigation concerning the
right to the monies held in escrow as provided herein. The Escrow Agent has
executed this Agreement solely to confirm that it is holding and will hold
the Deposits in escrow pursuant to the provisions of this Article 28 and for
no other purpose.
28.5 Representation of Seller. Purchaser acknowledges that
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the Escrow Agent is representing Seller in connection with the transactions
referred to in this Agreement. Purchaser consents and agrees that the Escrow
Agent may continue to represent Seller in any dispute arising out of this
Agreement or the documents contemplated hereby notwithstanding that the
Escrow Agent shall simultaneously be acting as the Escrow Agent hereunder or
in any such dispute.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the day and year first above written.
SELLER:
110 EAST 42nd STREET ASSOCIATES
LIMITED PARTNERSHIP
By: 110 Management Corporation,
its General Partner
By: /s/ Silvia Kessel
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Name: Silvia Kessel
Title: Vice President
PURCHASER:
GREEN 110E42 REALTY LLC
By: /s/ Benjamin P. Feldman
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Name: Benjamin P. Feldman
Title: Manager
The undersigned is executing this Agreement solely to acknowledge
its receipt of the Deposits and to evidence its agreement to be bound by the
provisions of Article 28 hereof:
By: /s/ Steven Simkin
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PAUL, WEISS, RIFKIND, WHARTON & GARRISON