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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): January 25, 1999
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
SL Green Realty Corp. (the "Company"), through its wholly-owned
affiliate, Green W. 57th Street, LLC, has acquired controlling interests in a
property involving a significant amount of assets from Blackacre 555 West 57th
Street, MM LLC and Blackacre 555 West 57th Street, LLC.
555 West 57th Street. On January 25, 1999, the Company purchased a 65%
controlling interest in 555 West 57th Street, New York, New York ("555 West
57th") for an aggregate purchase price of approximately $66.7 million,
including $38.1 million in assets and $28.6 million in assumed debt.
555 West 57th is a 20-story Midtown Manhattan property known as the BMW
Building. The property is located on the easterly block front of 11th Avenue
between West 57th and West 58th Streets in Manhattan's midtown west submarket.
The property contains 941,000 square feet of rentable space (including three
subgrade floors, two of which comprise a 190-car garage). The property is
currently 98% leased.
BMW, the primary tenant, occupies 19% of the floorspace, or 183,000
square feet. 555 West 57th was originally built in 1971 as the headquarters
for Ford Motor Company. Now the building is home to BMW's U.S. flagship
offices, service center and showroom. Other tenants include: CBS, Inc., The
City University of New York, St. Luke's Roosevelt Hospital, the Greater NY
Hospital and Ticketmaster. Many tenants have signed long-term leases as
evidenced by the fact that 65% of existing leases expire beyond 2008.
The purchase price of 555 West 57th was funded with proceeds from the
Senior Unsecured Revolving Line of Credit Agreement between SL Green Operating
Partnership, L.P. and SL Green Realty Corp. and Lehman Brothers Holdings Inc.
D/B/A Lehman Capital, a Division of Lehman Brothers Holdings Inc.
(individually as a Co-Lender and as Agent for one or more Co-Lenders and as
Syndication Agent). This Credit Facility is dated as of December 18, 1997.
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 therefore 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 Form of Agreement of Sale and Purchase between Blackacre 555 West 57th
Street MM LLC and Blackacre 555 West 57th Street LLC, as Sellers, and SL
Green Operating Partnership, L.P., as Purchaser.
2.2 Form of Amendment to Sale and Purchase Agreement between Blackacre 555
West 57th Street MM LLC and Blackacre 555 West 57th Street LLC, as
Sellers, and SL Green Operating Partnership, L.P., as Purchaser.
2.3 Form of Assignment and Assumption of Membership Interest between
Blackacre 555 West 57th Street LLC, as Assignor, and Green W. 57th St.,
LLC, as Assignee.
2.4 Form of Assignment and Assumption of Sale and Purchase Agreement between
SL Green Operating Partnership, L.P., as Assignor, and Green West 57th
St., LLC, as Assignee.
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
President and Chief Operating Officer
Date February 8, 1999
============================================================================
SALE-PURCHASE AGREEMENT
between
BLACKACRE 555 WEST 57TH STREET MM LLC
and BLACKACRE 555 WEST 57TH STREET LLC,
Sellers
and
SL GREEN OPERATING PARTNERSHIP, L.P.,
Purchaser
Dated: As of October __, 1998
============================================================================
TABLE OF CONTENTS
Page
1. Sale and Purchase of Membership Interests.................................2
2. State of Title............................................................2
3. Purchase Price and Payment................................................3
4. Closing...................................................................4
5. Representations and Warranties of Sellers and Purchaser...................5
6. Title Matters Affecting the Property; Exceptions to Title................14
7. As Is; Access to Property During Contract Period; Operation of Property..18
8. Apportionments, Adjustments and Credits..................................20
9. Closing Deliveries.......................................................25
10. Conditions to Closing Obligations.......................................28
11. Consent of Mortgagee....................................................30
12. BMW Purchase Option.....................................................33
13. Ford Note...............................................................35
14. Confidentiality.........................................................36
15. Limitation on Liability of Parties......................................37
16. Fire or Other Casualty; Condemnation....................................38
17. Brokerage...............................................................40
18. Closings Costs; Fees and Disbursements of Counsel, etc..................40
19. Notices.................................................................40
20. Survival; Governing Law.................................................42
21. Counterparts; Captions..................................................42
22. Entire Agreement; No Third Party Beneficiaries..........................42
23. Waivers; Extensions.....................................................42
24. No Recording............................................................42
25. Assignments.............................................................43
26. Pronouns; Joint and Several Liability...................................43
27. Successors and Assigns..................................................43
28. Escrow..................................................................43
29. Tax Proceedings.........................................................46
30. Leasing.................................................................47
31. Indemnity for Certain Transfer Taxes....................................47
32. Further Assurances......................................................48
EXHIBITS
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A. Legal Description of the Property
B. Escrow Agent Wire Instructions
B-1 Form of Bank of Boston Letter of Credit
B-2. Ford Note
C. Operating Agreement of Nominee LLC
D. Operating Agreement of Associates LLC
E. TIC Agreement
F. Property Management and Leasing Agreement
G. Space Leases
H. Rent Roll
I. Tenant Improvement Allowances
J. Payable Commissions
J-1. Material Litigation
K. Employees
L. Mobil Indemnity
M. Ford Indemnity
N. Tax Certiorari Proceedings
O. Service Contracts and Utility Deposits
P. 5th and 6th Floor Office Conversion
P-1. Co-Brokerage Agreement
Q. Permitted Title Matters of Record
R. Form of Assignment and Assumption of Membership Interest
S. Form of Estoppel
T. Form of Amendment to Operating Agreement
U. Form of Non-Imputation Affidavit
V. Form of License Agreement
V-1. Form of Subordinate Assignment of Interest in Note and Rights to
Receive Distributions
V-2. Form of UCC-1
SCHEDULES
- ---------
1. Balance Sheet of the Company
SALE-PURCHASE AGREEMENT
THIS SALE-PURCHASE AGREEMENT (the "Agreement"), dated as of October
__, 1998, by and among BLACKACRE 555 WEST 57TH STREET MM LLC, a Delaware
limited liability company, having an office c/o Blackacre Capital Management,
LLC, 450 Park Avenue, New York, New York 10022 ("Blackacre MM LLC") and
BLACKACRE 555 WEST 57TH STREET LLC, a Delaware limited liability company,
having an office c/o Blackacre Capital Management, LLC, 450 Park Avenue, New
York, New York 10022 ("Blackacre LLC" and, together with Blackacre MM LLC,
individually, a "Seller" and, collectively, "Sellers"), and SL GREEN OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership, having an office at 70 West
36th Street, New York, New York 10018-8007 ("Purchaser").
W I T N E S S E T H:
WHEREAS, 555 West 57th LLC is a Delaware limited liability company
(the "Company") formed pursuant to that certain (a) Certificate of Formation of
555 West 57th LLC, dated August 19, 1997, and filed in the Office of the
Secretary of State of the State of Delaware on August 20, 1997, and (b) Amended
and Restated Limited Liability Company Agreement of 555 West 57th LLC, dated as
of October 30, 1997 (the "Company's Operating Agreement"); and
WHEREAS, the Company owns (a) a sixty-four percent (64%)
tenancy-in-common interest in that certain parcel of improved real property
known as 555 West 57th Street, New York, New York, as more particularly
described in Exhibit A attached hereto and made a part hereof (the real
property, together with all personal property located at and/or used in
connection with such real property and owned in whole or in part by the Company
(but expressly excluding any personal property of space tenants or leased
property), being collectively referred to herein as the "Property"), and (b)
all of the membership interests in 555 West 57th Associates, LLC, a Delaware
limited liability company ("Associates LLC"); and
WHEREAS, Associates LLC owns a 1% general partnership interest in 555
W. 57th Associates, a New York general partnership ("57th Associates"), and a
2.875% membership interest in 555 West 57th Nominee LLC, a Delaware limited
liability company ("Nominee LLC"); and
WHEREAS, Blackacre MM LLC is the sole managing member of, and owns a
one percent (1%) interest in, the Company pursuant to the Company's Operating
Agreement; and
WHEREAS, Blackacre LLC is a non-managing member of, and owns a
ninety-nine percent (99%) interest in, the Company pursuant to the Company's
Operating Agreement; and
WHEREAS, Blackacre MM LLC desires to sell to Purchaser, and Purchaser
desires to purchase from Blackacre MM LLC, Blackacre MM LLC's one percent (1%)
interest in the Company, together with all of Blackacre MM LLC's rights and
obligations associated with such membership interest being sold hereunder (the
"Blackacre MM LLC Interest") on the terms and conditions set forth herein; and
WHEREAS, Blackacre LLC desires to sell to Purchaser, and Purchaser
desires to purchase from Blackacre LLC, Blackacre LLC's ninety-nine percent
(99%) interest in the Company, together with all of Blackacre LLC's rights and
obligations associated with such membership interest being sold hereunder (the
"Blackacre LLC Interest" and, together with the Blackacre MM LLC Interest,
being sometimes hereinafter referred to as, individually, a "Membership
Interest" and, collectively, the "Membership Interests") on the terms and
conditions set forth herein; and
WHEREAS, in connection with the sale and purchase of the Membership
Interests, the Company's Operating Agreement is being amended concurrently
herewith to reflect the transfer of the Membership Interests, the admission of
Purchaser or its designees as the managing member and non-managing member or
members of the Company and the withdrawal of Blackacre MM LLC and Blackacre LLC
as members of the Company, all as more fully set forth herein.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
Sellers and Purchaser, and in consideration of the mutual covenants and
agreements herein set forth, the parties hereto hereby agree as follows:
1. Sale and Purchase of Membership Interests.
1.1 Blackacre MM LLC hereby agrees to sell and assign to Purchaser,
and Purchaser hereby agrees to purchase and acquire from Blackacre MM LLC, the
Blackacre MM LLC Membership Interest.
1.2 Blackacre LLC hereby agrees to sell and assign to Purchaser, and
Purchaser hereby agrees to purchase and acquire from Blackacre LLC, the
Blackacre LLC Membership Interest.
2. State of Title.
2.1 Each Seller shall convey to Purchaser good title to its
Membership Interest, free and clear of all liens, claims, encumbrances,
pledges, hypothecations and charges, except for any liens or encumbrances held
by Greenwich Capital (as hereinafter defined) in respect of the Greenwich Loan
(as hereinafter defined).
3. Purchase Price and Payment.
3.1 The purchase price (the "Purchase Price") payable to Sellers for
the Membership Interests shall be, in the aggregate, $37,525,000.00, subject to
(a) reduction as provided in Articles 12 and 13 hereof, (b) any credits
Purchaser may be entitled to in respect of any Additional Cash Downpayments (as
defined in Section 4.3 hereof) under Section 4.3 hereof, and (c) subject to
such other apportionments, adjustments and credits as are provided in Articles
6, 8, 10 and 29 hereof.
3.2 The Purchase Price shall be payable as follows:
3.2.1 (a) $3,752,500.00, payable concurrently herewith in
immediately available funds, by federal funds wire transfer ("Wire Transferred
Funds") to Solomon and Weinberg LLP, as escrow agent ("Escrow Agent") pursuant
to the instructions (the "Wire Instructions") set forth on Exhibit B attached
hereto and made a part hereof (the "Downpayment"), the receipt of which
Downpayment is hereby acknowledged by Escrow Agent. The Downpayment shall be
held by Escrow Agent and disbursed in accordance with the terms and conditions
of this Agreement. Except as provided in Section 3.2.1(b) below, any interest
earned on the Downpayment shall be deemed to be part of the Downpayment and
shall be paid together with the principal portion of the Downpayment, it being
understood and agreed that any interest earned on the Downpayment shall not be
credited to the Purchase Price upon Closing (as hereinafter defined) and shall,
upon Closing, be and remain the property of Seller.
(b) At any time after the date hereof until the date that
is fifteen days (15) prior to any scheduled Closing Date (as hereinafter
defined), Purchaser may, at Purchaser's option, deliver to Escrow Agent a
clean, irrevocable, non-documentary and unconditional letter of credit naming
Sellers as beneficiary in the amount of $3,752,500.00 issued by and drawn upon
BankBoston, N.A. (hereinafter referred to as the "Issuing Bank") in the form
attached hereto as Exhibit B-1 (the "Downpayment Letter of Credit"), the term
of which Downpayment Letter of Credit shall not expire prior to March 15, 1999,
and which Downpayment Letter of Credit shall be deemed to be a substitute for
the Downpayment hereunder. In the event that Purchaser elects to deliver the
Downpayment Letter of Credit, Escrow Agent shall return to Purchaser the
Downpayment deposited with Escrow Agent pursuant to Section 3.2.1(a), but
Escrow Agent shall retain in escrow all interest earned thereon through the
date that the Downpayment is returned to Purchaser under this Section 3.2.1(b),
as well as all interest thereafter earned on such interest (all such interest
retained by Escrow Agent if Purchaser substitutes the Downpayment Letter of
Credit under this Section 3.2.1 being hereinafter referred to, collectively, as
the "Downpayment Interest"). The Downpayment Letter of Credit shall be held by
Escrow Agent and delivered in accordance with the terms and conditions of this
Agreement. The Downpayment Interest shall not be credited to the Purchase Price
upon Closing (as hereinafter defined) and shall, upon Closing, be and remain
the property of Sellers.
3.2.2 If Purchaser has (a) not provided Escrow Agent with the
Downpayment Letter of Credit, the balance of the Purchase Price in the amount
of $33,772,500.00 shall be paid to Sellers on the date of Closing, or (b)
provided Escrow Agent with the Downpayment Letter of Credit, the entire
Purchase Price in the amount of $37,752,500.00 shall be paid to Sellers on the
date of Closing, in either case, subject to the apportionments, adjustments and
credits referenced in Section 3.1 above, to be paid simultaneously with the
delivery of the Assignments (as hereinafter defined) in Wire Transferred Funds
to an account at such bank or banks as shall be designated by Sellers by
written notice to Purchaser at least one (1) business day prior to the date of
Closing and upon the Closing, if Purchaser has provided Escrow Agent with the
Downpayment Letter of Credit, Escrow Agent shall contemporaneously deliver the
Downpayment Letter of Credit to Purchaser at the Closing.
3.3 Subject to Section 28.1.3, whenever in this Agreement Purchaser
is entitled to a return of the Downpayment, Purchaser shall be entitled to the
return of the Downpayment and any Additional Cash Downpayments (as hereinafter
defined) actually being held by Escrow Agent pursuant to this Agreement,
together with all interest earned thereon (including, without limitation, any
Downpayment Interest), and to the return of any Downpayment Letter of Credit
and Additional Downpayment Letters of Credit (as hereafter defined) actually
delivered to Escrow Agent. Subject to Section 28.1.3, whenever in this
Agreement, Sellers are entitled to retain the Downpayment, Sellers shall be
entitled to the Downpayment and any Additional Cash Downpayments actually being
held by Escrow Agent pursuant to this Agreement, together with all interest
earned thereon (including, without limitation, any Downpayment Interest), and
to any Downpayment Letter of Credit and Additional Downpayment Letters of
Credit actually delivered to Escrow Agent and shall be entitled to draw
thereupon.
4. Closing
4.1 The closing of the transaction contemplated hereby (the
"Closing") shall occur at 10:00 AM on December 1, 1998, TIME BEING OF THE
ESSENCE as to Sellers' and Purchaser's respective obligation to close on such
date, except as otherwise expressly provided in Sections 4.2 and 4.3 below
(such date or, as the same may be adjourned by Sellers pursuant to Section 4.2
below or Purchaser pursuant to Section 4.3 below, being referred to herein as
the "Closing Date").
4.2 Sellers shall be entitled to one (1) or more adjournments of the
Closing Date to a date no later than 10:00 AM on the later to occur of (a)
January 30, 1999 or (b) that date that is thirty (30) days after the then
scheduled Closing Date, pursuant to the provisions of Section 6.3 and/or
Section 13.2 hereof, by delivering to Purchaser written notice of any such
adjournment at least two (2) business days prior to the then scheduled Closing
Date.
4.3 Purchaser shall be entitled to a maximum of three (3)
adjournments, each such adjournment not to exceed thirty (30) days, TIME BEING
OF THE ESSENCE as to each such thirty (30) day period, provided that with
respect to each such adjournment requested by Purchaser, Purchaser shall (a)
deliver to Sellers written notice of any such adjournment at least two (2)
business days prior to the then scheduled Closing Date, and (b) Purchaser shall
simultaneously (i) deliver to Escrow Agent an additional $1,000,000.00 by Wire
Transferred Funds pursuant to the Wire Instructions set forth on Exhibit B for
each such adjournment as an additional downpayment hereunder (such payments
being referred to, individually, as an "Additional Cash Downpayment" and,
collectively, as the "Additional Cash Downpayments"), or (ii) deliver to Escrow
Agent a clean, irrevocable, non-documentary and unconditional letter of credit
naming Sellers as beneficiary in the amount of $1,000,000.00 issued by and
drawn upon the Issuing Bank in the form attached hereto as Exhibit B-1, the
term of which letter of credit shall not expire prior to March 15, 1999 (each
such Letter of Credit being referred to, individually, as the "Additional
Downpayment Letter of Credit" and, collectively, as the "Additional Downpayment
Letters of Credit"). All Additional Cash Downpayments, together with any
interest earned thereon, shall be deemed to be part of the Downpayment and
Purchaser shall be entitled to a credit against the Purchase Price at the
Closing in respect of each Additional Cash Downpayment; provided, however, that
any interest earned on any of the Additional Cash Downpayments shall not be
credited to the Purchase Price upon Closing (as hereinafter defined) and shall,
upon Closing, be and remain the property of Sellers. At the Closing, if
Purchaser has provided Escrow Agent with any Additional Downpayment Letters of
Credit, Escrow Agent shall contemporaneously deliver such Downpayment Letters
of Credit to Purchaser.
4.4 The Closing shall occur at the offices of Solomon and Weinberg
LLP, 70 East 55th Street, New York, New York 10022, or at the offices of
Purchaser's lender located in New York County, New York.
4.5 Sellers shall cause an interim closing of the books of the
Company effective as of the Closing, for the purpose of allocating, for income
tax purposes, the income, loss, gain, deduction and credit attributable to the
Membership Interests between Sellers and Purchaser based on the actual results
of the Company's activities during the period in which each was a holder of the
Membership Interests. Sellers shall indemnify Purchaser and hold Purchaser
harmless from and against any federal, state or municipal income tax liability
of Sellers in respect of the Membership Interests for any period prior to the
Closing Date. Purchaser shall indemnify Sellers and hold Sellers harmless from
and against any federal, state or municipal income tax liability of Purchaser
in respect of the Membership Interests for any period on and after the Closing
Date. The provisions of this Section 4.5 shall survive the Closing.
5. Representations and Warranties of Sellers and Purchaser.
5.1 Each Seller represents, warrants and covenants to and with
Purchaser that the following are true and correct on the date hereof:
5.1.1 Seller is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite power and authority to enter into and to perform the terms of
this Agreement. Seller is duly qualified to do business as a foreign limited
liability company and is in good standing in every jurisdiction in which the
nature of the business conducted by such Seller therein makes such
qualification necessary.
5.1.2 The Company is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified to do business as a foreign limited liability company and
is in good standing in the State of New York.
5.1.3 Associates LLC is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified to do business as a foreign limited liability company and
is in good standing in the State of New York.
5.1.4 The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite action of Seller. The execution and delivery of this Agreement
and the performance by Seller hereunder will not (a) conflict with, breach or
result in a default under, Seller's certificate of formation or operating
agreement, (b) violate or constitute a default under any material agreement,
document or instrument to which Seller is a party or to which Seller is bound,
except the Greenwich Loan Documents (as hereinafter defined), or (c) to the
best of Seller's actual knowledge, violate or conflict with the terms of any
law, judgment, order, writ, decree, statute, injunction, rule or regulation
applicable to Seller or by which Seller is bound. Seller has duly executed and
delivered this Agreement and this Agreement constitutes the valid and binding
obligation of Seller enforceable against Seller in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors' rights
generally, and by general principles of equity.
5.1.5 Seller owns its Membership Interest and is conveying its
Membership Interest to Purchaser free and clear of all liens, claims,
encumbrances, mortgages, pledges, hypothecations and charges of every kind and
nature, except for any lien, encumbrance, mortgage or pledge created by any of
the Greenwich Loan Documents. Associates LLC owns its membership interest in
Nominee LLC free and clear of all liens, claims, encumbrances, mortgages,
pledges, hypothecations and charges of every kind and nature, except for any
lien, encumbrance, mortgage or pledge created by any of the Greenwich Loan
Documents.
5.1.6 The Company has no material liabilities other than those
reflected on the balance sheet of the Company dated as of August 31, 1998, a
copy of which is attached hereto as Schedule 1 and made a part hereof (the
"Company's Balance Sheet"), except for those liabilities incurred in the
ordinary course of business of the Company since such date. Seller has not
taken any action which could result in the Company incurring any material
liability, except as reflected on such balance sheet and except for those
liabilities incurred in the ordinary course of business of the Company since
such date.
5.1.7 Intentionally omitted.
5.1.8 Seller is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code 1986, as amended, or any regulations
promulgated thereunder (collectively, the "Code").
5.1.9 Attached hereto as Exhibit B-2 and made a part hereof is a
true and complete copy of that certain Promissory Note (the "Ford Note"), dated
May 31, 1996, made by Manhattan Ford, Lincoln-Mercury, Inc. and Ford Motor
Company, as makers, in favor of Kaufman Newmark Realty Corporation, as agent
for 555 West 57th Associates, as assigned to the Tenancy-in-Common by allonge
dated October 31, 1997. To the best of Seller's actual knowledge, there have
been no defaults under the Ford Note and there exist no offsets or defenses to
the obligations of the makers of the Ford Note thereunder.
5.2 With respect to the Property, each Seller represents and warrants
to Purchaser as follows:
5.2.1 The Company owns (a) a 64% tenancy-in-common interest in
the Property, and (b) 100% of the membership interests in Associates LLC.
5.2.2 (a) Nominee LLC owns a 26% tenancy-in-common interest in
the Property.
(b) Associates LLC, the Company's wholly-owned subsidiary,
owns a 2.875% membership interest in Nominee LLC; 57th Associates owns a
97.125% interest in Nominee LLC, and Associates LLC owns a 1% general
partnership interest in 57th Associates. A true and complete copy of the
operating agreement of Nominee LLC, together with all amendments thereto, if
any, is attached hereto as Exhibit C and made a part hereof; a true and
complete copy of the operating agreement of Associates LLC, together with all
amendments thereto, if any, is attached hereto as Exhibit D and made a part
hereof.
5.2.3 The Company is a party to that certain Tenancy-In-Common
Agreement, dated as of October 31, 1997 (the "TIC Agreement"), between the
Company, Nominee LLC and CTKG West 57th LLC ("CTKG" and, together with the
Company and Nominee LLC, being sometimes hereinafter referred to, individually,
as a "Co-Tenant" or "Tenant-in-Common", and, collectively, as the
"Tenancy-in-Common", "Tenants-in-Common" or "Co-Tenants"), a true and complete
copy of which agreement is attached hereto as Exhibit E and made a part hereof.
The Company has made no demands for any capital calls, contributions or other
payments under the TIC Agreement that are currently due and payable by any
Co-Tenant and there are no outstanding demands for any capital calls,
contributions or other payments under the TIC Agreement with respect to any
Co-Tenant. To the best of Seller's actual knowledge, neither the Company,
Nominee LLC or CTKG is in default under the TIC Agreement.
5.2.4 The Property is managed by Kaufman Newmark Realty
Corporation ("Newmark") pursuant to that certain Property Management and
Leasing Agreement, dated as of October 21, 1997, between Newmark, as agent, and
the Company, Nominee LLC and CTKG, as owners, a true and complete copy of which
agreement is attached hereto as Exhibit F and made a part hereof.
5.2.5 There are no leases or other occupancy agreements
affecting the Property other than those set forth on Exhibit G attached hereto
and made a part hereof (such leases or occupancy agreements, together with all
renewals, replacements and amendments thereof entered into after the date
hereof being herein referred to, collectively, as the "Space Leases") and such
Space Leases contain the entire agreement between the Tenancy-in-Common and the
respective Space Lessees (as hereafter defined) with respect to the premises
demised to such Space Lessees at the Property. Seller has delivered to
Purchaser true, correct and complete copies of all of the Space Leases, which
have been initialed by Purchaser and Seller for identification.
5.2.6 As to the Space Leases:
(a) Each Space Lease is in full force and effect and has
not been modified in any material respect except as set forth on Exhibit G or
in the schedule attached hereto as Exhibit H and made a part hereof (the "Rent
Roll") and fixed rent and additional rent are currently being billed to the
tenants thereunder (the "Space Lessees") in accordance with the Rent Roll.
(b) To the best of Seller's actual knowledge, the
Tenancy-in-Common is not in default in any of its respective material
obligations under any Space Lease and no Space Lessee has made any written
claim to the Company asserting any right of offset or setoff against the rent
due by such Space Lessee under any Space Lease. To the best of Seller's actual
knowledge, except as set forth in the Rent Roll, no Space Lessee is in default
of any of its material obligations under its Space Lease.
(c) Except as otherwise set forth on the Rent Roll, (i)
all Space Lessees have been delivered possession of the premises demised to
them under their respective Space Leases, (ii) no Space Lessee is entitled to
any free rent, rent concessions or rent abatements under their respective Space
Leases, (iii) the rents and additional rents payable by the Space Lessees under
their respective Space Leases are being paid on a current basis, except that
the Rent Roll sets forth all arrears in the payment of fixed rent or additional
rent under the Space Leases as of September 30, 1998 and (iv) to the best of
Seller's actual knowledge, the Co-Tenants have not during the Company's period
of ownership of the Company's Property Interest (as hereinafter defined)
overcharged any Space Lessee in the payment of rent, except for customary
adjustments of additional rent paid on an estimated basis and adjusted
annually.
(d) Except as otherwise set forth on the Rent Roll, no
Space Lessee has prepaid any rents or additional rents for more than one (1)
month in advance.
(e) Except as set forth on the Rent Roll, to the best of
Seller's actual knowledge, the Tenancy-in-Common is not in possession of any
security deposits provided for in any of the Space Leases.
(f) Except as set forth on Exhibit I attached hereto and
made a part hereof, or on the Rent Roll or in the Space Leases, all landlord
contributions or tenant improvement allowances have been paid to the Space
Lessees under the Space Leases and the reasonably estimated cost of any
landlord work to be completed and performed by the landlord under the Space
Leases (except for any such work required to be performed upon the exercise by
any Space Lessee of any renewal option or expansion option as set forth in the
Space Lease) is set forth on Exhibit I (such landlord contributions, tenant
improvement allowances and landlord work being referred to, collectively, as
the "Tenant Improvement Allowances").
(g) Except as set forth on Exhibit J attached hereto and
made a part hereof, there are no leasing brokerage commissions (or unpaid
installments thereof) due and payable with respect to any Space Leases
(including renewals, extensions or expansions in connection therewith which
have been exercised) (the "Payable Commissions"), and such Payable Commissions
shall, to the extent not paid on or prior to the Closing, continue to be an
obligation of the Company and the other Co-Tenants.
(h) On the Closing Date, neither the Company's interest in
the Space Leases, nor the indirect interest in the Spaces Leases of Associates
LLC, shall be subject to any assignment, pledge, mortgage, hypothecation, lien
or other encumbrance, except for the rights of Greenwich Capital (as hereafter
defined) under the Greenwich Loan Documents (as hereafter defined).
(i) To the best of Seller's actual knowledge, no existing
Space Lessee has any option to renew its Space Lease that is not provided for
in the existing Space Lease. Sellers will cause the Company, on behalf of the
Co-Tenants, to serve notice on Revlon pursuant to its Space Lease so as to
cause Revlon to exercise, waive or lose its option with respect to the offer
from the New York City Housing Authority to lease certain 11th floor space and
Sellers will cause the Company to deliver to Purchaser a copy of such notice to
Revlon and any responses thereto.
5.2.7 With respect to the Company's tenancy-in-common interest
in the Property (the "Company's Property Interest"), and to the best of
Seller's actual knowledge as to the interests in the Property of the other
Co-Tenants, except as set forth on Exhibit J-1 attached hereto and made a part
hereof, there are no material actions, suits or proceedings (including
landlord/tenant proceedings) pending or threatened in writing against the
Property, at law or in equity, before any federal, state, municipal or
governmental department, commission, board, bureau, agency or instrumentality
which could (a) materially adversely affect title to the Property, (b) if
adversely determined, prohibit Seller from consummating the transactions
contemplated hereby or (c) materially adversely affect the continued use and
enjoyment of the Property as an office building. Seller shall give Purchaser
prompt notice of any such action, suit or proceeding which is filed prior to
the date of Closing of which Seller receives written notice.
5.2.8 With respect to the Company's Property Interest, and to
the best of Seller's actual knowledge as to the interests in the Property of
the other Co-Tenants, there are no pending or threatened in writing
condemnation or eminent domain proceedings that would affect the Property.
5.2.9 To the best of Seller's actual knowledge, there are no
persons employed by the Company in connection with the management, operation or
maintenance of the Property except as set forth on Exhibit K attached hereto
and made a part hereof (the "Employees").
5.2.10 Neither Seller nor the Company are a party to any option
to purchase, right of first offer or right of first refusal to acquire all or
any portion of the Company's Property Interest held by any other person, except
the BMW Purchase Option (as hereinafter defined) and, to the best of Seller's
actual knowledge, neither of the other Co-Tenants are a party to any option to
purchase, right of first offer or right of first refusal to acquire all or any
portion of the Property held by any other person, except the BMW Purchase
Option.
5.2.11 (a) Neither the Company, nor to the best of Seller's
actual knowledge, the other Co-Tenants, have used the Property or, except for
certain uses by BMW of Manhattan, Inc. ("BMW") in respect of the premises
demised to BMW at the Property under its Space Lease, permitted the Property to
be used, during the period of the Company's tenancy-in-common ownership of the
Company, for the generation, storage, release, discharge or disposal of toxic
or Hazardous Materials (as hereinafter defined), other than such relatively
small quantities of such materials as are ordinarily used in connection with
the development, use and operation of office buildings and which have been used
in compliance with applicable Environmental Laws (as defined below).
(b) To the best of Seller's actual knowledge, except as
may be otherwise set forth in the that certain (i) Indemnity Agreement, dated
August 1, 1997, given by Mobil Oil Corporation, as indemnitor, in favor of 57th
Associates, Newmark and BMW, as indemnitees (the "Mobil Indemnity") and (ii)
Indemnity Agreement, dated August __, 1997, given by Manhattan Ford,
Lincoln-Mercury, Inc. and the Ford Motor Company, as indemnitors, in favor of
57th Associates, its partners, lenders, successors and assigns, BMW and
Newmark, as indemnitees (the "Ford Indemnity"), no current Space Lessees (other
than BMW) or other occupants of the Property have used any portion of the
Property for any activities involving, directly or indirectly, the use,
generation, treatment, transportation, storage or disposal of any Hazardous
Materials in violation of all applicable Environmental Laws and, with respect
to BMW, Seller has not received any actual notice of any violations of
applicable Environmental Laws. A true and complete copy of each of the Mobil
Indemnity and the Ford Indemnity is attached hereto as Exhibit L and Exhibit M,
respectively.
(c) As used herein, the term "Hazardous Materials: means
(i) urea formaldehyde foam insulation, (ii) transformers or other equipment
which contain dielectric fluid containing levels of polychlorinated biphenyls
in excess of the applicable legal limit, or (iii) any flammable explosives,
radioactive materials, hazardous materials, hazardous wastes, hazardous,
controlled or toxic substances, or any pollutant or contaminant, or related
materials defined in or controlled pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601 et seq.), the Hazardous Materials Transportation Act, as amended
(49 U.S.C. Sections 1801 et seq.), the Resource Conservation and Recovery Act,
as amended (42 U.S.C. Sections 6901 et seq.), and in the regulations
promulgated pursuant thereto, or any other federal, state or local
environmental law, ordinance, rule or regulation (collectively, "Environmental
Laws"). Expressly excluded from the definition of Hazardous Materials in this
Agreement are asbestos and asbestos containing materials and expressly excluded
from the definition of Environmental Laws in this Agreement are any and all
laws, ordinances, rules or regulations governing asbestos or asbestos
containing materials. Seller makes no representations, warranties or covenants
in this agreement and hereby expressly disclaims any and all liability with
respect to asbestos and asbestos containing materials.
(d) Except as previously disclosed to Purchaser in the
Ford Indemnity and the Mobil Indemnity, the Company has not received any
written notice from any governmental authority in respect of Environmental
Laws.
5.2.12 Except as set forth on Exhibit N attached hereto and made
a part hereof, the Company has neither commenced nor maintained any proceedings
to decrease the assessed valuation of the Property.
5.2.13 To the best of Seller's actual knowledge, Exhibit O
attached hereto and made a part hereof sets forth all material service,
maintenance and supply contracts (collectively, the "Service Contracts")
relating to the Property and all deposits held by utility companies with
respect to the Property.
5.2.14 To the best of Seller's actual knowledge, there has been
no requirement or recommendation as to material repairs or other work made with
respect to the Property by any insurance company that has issued a policy of
insurance to the Company or to the Tenants-in-Common in connection with the
Property or by any board of fire underwriters or other body exercising similar
functions that has not been complied with by the Company or the other
Co-Tenants.
5.2.15 To the best of Seller's actual knowledge, no material
facts or conditions exist which would result in the termination or impairment
of access to the Property or the discontinuation of necessary sewer, water,
electric, gas, telephone or other utility services to the Property.
5.2.16 To the best of Seller's actual knowledge, Exhibit P
attached hereto and made a part hereof sets forth the reasonably estimated
costs, as of the date hereof, to substantially complete that portion of the 5th
and 6th Floor Office Conversion (as defined on Exhibit P) not substantially
completed as of the date hereof.
5.2.17 To the best of Seller's actual knowledge, there is no
Right (as hereinafter defined) not of record that materially adversely affects
the continued use and enjoyment of the Property as currently operated.
5.2.18 Except as set forth in Exhibit O, the Company has not
authorized the Tenancy-in-Common to enter into, and the Tenancy-in-Common is
not a party to, any agreement with Partners Cleaning, LLC ("PC") pursuant to
which PC provides services in respect of the Property. The agreement with PC
set forth on Exhibit O is terminable on not more than sixty (60) days advance
written notice without penalty.
5.2.19 Reference is made to that certain Railroad Easement
Agreement, dated June 8, 1932, between New York State Realty and Terminal
Company, as grantor, and The New York Central Railroad Company, as grantee,
recorded in the Office of the New York City Register on June 10, 1932, in Liber
3842, cp 11 (together with all modifications, releases, easements, deeds of
easement and deeds with respect thereto as are of record on the date hereof,
the "Railroad Easement"). To the best of Seller's actual knowledge, during the
period of the Company's ownership of the Company's Property Interest, neither
the grantee under the Railroad Easement nor any successor-in-interest to such
grantee has made any demand upon any Co-Tenant, or given any notice to any
Co-Tenant, seeking to assert any right conferred upon such grantee (or
successor) under such Railroad Easement that would mutually adversely affect
all or any portion of the Property.
5.2.20 To the best of Seller's actual knowledge, the only
brokerage commission that would be due and payable by the Co-Tenants in the
event the BMW Purchase Option (as hereinafter defined) is exercised is set
forth in that certain Co-Brokerage Agreement, dated October 29, 1996, between
Kaufman/Newmark Realty Corp., as agent for 555 W. 57th Associates, and Cushman
& Wakefield, Inc., as broker, a copy of which is attached hereto as Exhibit P-1
and made a part hereof.
5.3 Purchaser represents, warrants and covenants to and with Seller
that the following are true and correct on the date hereof:
5.3.1 Purchaser is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite power and authority to enter into and to perform the terms of
this Agreement. Purchaser is duly qualified to do business as a foreign limited
partnership and is in good standing in every jurisdiction in which the nature
of the business conducted by Purchaser therein makes such qualification
necessary.
5.3.2 The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite action of Purchaser. The execution and delivery of this
Agreement and the performance by Sellers hereunder will not (a) conflict with,
breach or result in a default under, Seller's certificate of limited
partnership or agreement of limited partnership, (b) violate or constitute a
default under any material agreement, document or instrument to which Purchaser
is a party or to which Purchaser is bound, or (c) to the best of Purchaser's
actual knowledge, violate or conflict with the terms of any law, judgment,
order, writ, decree, statute, injunction, rule or regulation applicable to
Purchaser or by which Purchaser is bound. Purchaser has duly executed and
delivered this Agreement and this Agreement constitutes the valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors' rights
generally, and by general principles of equity.
5.3.3 The representations and warranties of Purchaser contained
in this Section 5.3 shall survive the Closing.
5.4 Purchaser acknowledges and agrees that, except as specifically
set forth in this Agreement, neither Sellers nor any agent or representative or
purported agent or representative of Sellers has made, and Sellers are not
liable for or bound in any manner by, any express or implied warranties,
guaranties, promises, statements, inducements, representations or information
pertaining to the Company, or the Property or any portion thereof, the physical
condition, size, zoning, income, expenses or operation thereof, 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 leasing or occupancy
of all or any part thereof. Without limiting the foregoing, Purchaser
acknowledges and agrees that Sellers are not liable for or bound by (and
Purchaser has not relied upon) any verbal or written statements,
representations or any other information respecting the Property furnished by
Seller or any broker, employee, agent, consultant or other person representing
or purportedly representing Sellers. The provisions of this Section 5.4 shall
survive the Closing.
5.5 Subject to Purchaser's compliance with the requirements of this
Section 5.5, Sellers' representations and warranties contained in Sections 5.1
and 5.2 shall survive the Closing as follows: (a) the representations and
warranties contained in Sections 5.1.1 through and including 5.1.8, Section
5.2.1(b), Section 5.2.6(e) and 5.2.17 shall survive the Closing; (b) the
representations and warranties contained in Sections 5.2.2(b), 5.2.5, 5.2.10
and 5.2.6(g) shall survive the Closing for a period of one (1) year; (c) the
representations and warranties contained in Sections 5.2.3, 5.2.6(a), (b), (c),
(f), (h), (i), 5.2.7, 5.2.8, 5.2.12, 5.2.14, 5.2.15 and 5.2.20 shall survive
the Closing for a period of one hundred eighty (180) days; (d) the
representations and warranties contained in Sections 5.1.9, 5.2.4, 5.2.6(d),
5.2.9, 5.2.11, 5.2.13, 5.2.16, 5.2.18 and 5.2.19 shall survive the Closing for
a period of ninety (90) days; and (e) the representations and warranties
contained in Sections 5.2.1(a) and 5.2.2(a) shall not survive the Closing (such
survival periods referred to in clauses (a) through (d) being referred to
herein, collectively, as the "Survival Period"). Any claim by Purchaser after
the Closing that either or both Sellers have breached the aforesaid
representations and warranties shall be made by Purchaser promptly after
Purchaser has learned of such breach and, in all events, prior to the
expiration of the applicable Survival Period by Purchaser delivering to Sellers
written notice (a "Claim Notice") setting forth (i) a description in reasonable
detail of the claimed breach or breaches, as applicable, (ii) the Section and
subsection of this Agreement under which such claimed breach or breaches is
asserted, (iii) Purchaser's good-faith calculation of the damages suffered by
Purchaser by reason of such claimed breach or breaches, and (iv) all documents
and written material upon which Purchaser asserts such claimed breach or
breaches. TIME SHALL BE OF THE ESSENCE in respect of Purchaser's obligation to
deliver to Sellers a Claim Notice in the manner herein provided within the
Survival Period. Sellers shall have no liability for any claimed breach of the
aforesaid representations and warranties until there shall be found to have
existed pursuant to an order of a court of competent jurisdiction one or more
breaches by Sellers of such representations or warranties. Notwithstanding the
foregoing, with respect to the representations and warranties as to Space
Leases set forth in Section 5.2 hereof, to the extent Sellers deliver to
Purchaser an Estoppel (as hereafter defined) with respect to any Space Lease,
the representations and warranties as to the matters expressly covered in such
Estoppel shall be deemed deleted and shall not survive the Closing.
6. Title Matters Affecting the Property; Exceptions to Title.
6.1 Sellers and Purchaser hereby agree that on the Closing Date, the
Property shall not be subject to any liens, encumbrances, or other matters of
record except the following matters (the "Permitted Exceptions"):
6.1.1 All presently existing and future liens for unpaid real
estate taxes and water and sewer charges not due and payable as of the date of
Closing, subject to adjustment as hereinafter provided.
6.1.2 All present and future zoning, building, environmental and
other laws, ordinances, codes, restrictions and regulations of all governmental
authorities having jurisdiction with respect to each the Property and all
zoning variances and special exceptions, if any (collectively, "Laws and
Regulations").
6.1.3 All covenants, restrictions and rights and all easements
and agreements for the erection and/or maintenance of water, gas, steam,
electric, telephone, sewer or other utility pipelines, poles, wires, conduits
or other like facilities, and appurtenances thereto, over, across and under the
Property (collectively, "Rights"), provided that such Rights are (a) of record
on the date hereof or (b) not of record and do not (i) materially adversely
affect the continued use and enjoyment of the Property as currently used.
6.1.4 Any state of facts which would be shown on or by an
accurate current survey of the Property (collectively, "Facts"), provided that
such Facts do not materially adversely affect the continued use and enjoyment
of the Property as currently used.
6.1.5 Rights of Space Lessees under the Space Leases.
6.1.6 All Service Contracts set forth on Exhibit O and all
renewals, replacements, extensions of same or additional service contracts that
may hereafter be entered into in accordance with the terms of this Agreement.
6.1.7 Consents by Sellers or any other owners or former owner of
the Property for the erection of any structure or structures on, under or above
any street or streets on which the Property may abut, provided that the same do
not materially adversely affect the continued use and enjoyment of the Property
as currently used.
6.1.8 The matters set forth in Exhibit Q attached hereto and
made a part hereof.
6.2 Purchaser agrees, promptly upon the execution of this
Agreement, at its sole cost and expense, to cause title to the Property to be
examined by Title Associates, Inc. through Chicago Title Insurance Company (the
"Title Company") and shall direct the Title Company to deliver copies of such
title report (the "Title Report") to Sellers' attorney promptly upon receipt.
Purchaser further agrees that not later than five (5) business days after
Purchaser receives the Title Report, Purchaser will furnish to Sellers'
attorneys a specification in writing (the "Title Report Objection Notice") of
any exceptions to title to the Property set forth in the Title Report which
Purchaser believes are not covered by the exceptions to title set forth in
Section 6.1 hereof. If, after giving the Title Report Objection Notice,
Purchaser learns, through continuation reports to the Title Report or other
written evidence, of any title defect(s) which Purchaser claims are not covered
by Section 6.1 above, Purchaser shall give notice thereof to Sellers promptly
after the date Purchaser learns of same. Any title insurance obtained by
Purchaser in connection with the Closing hereunder in connection with the
Property shall be obtained from the Title Company and one or more title
companies selected by Purchaser to co-insure (up to 45%) the Company's Property
Interest.
6.3 If, on the Closing Date, the Company's Property Interest is
subject to any material matters other than the Permitted Exceptions (other than
the matters that Sellers shall cause to be satisfied or cured at or prior to
the Closing as hereinafter provided in this Section), Purchaser shall be
entitled to a credit against the Purchase Price in an amount equal to the
reasonable cost to cure any such title defects; provided, however, that if the
cost to cure such material matters is in excess of $500,000.00 (the "Threshold
Amount"), Purchaser, at its option and subject to the right of Sellers to an
adjournment as hereinafter provided, may elect to either (a) proceed with the
Closing, in which case Purchaser shall receive a credit against the Purchase
Price equal to the Threshold Amount, or (b) terminate this Agreement by written
notice delivered on the scheduled date of Closing or before such date (in the
case of exceptions that are not Permitted Exceptions and which exceptions
Sellers theretofore indicated they are unable or unwilling to cure).
Notwithstanding the immediately preceding sentence, if the cost to cure title
defects is in excess of the Threshold Amount, Sellers shall have the right to
one (1) or more adjournments of the Closing as set forth in Section 4.2 hereof,
in order to attempt to cure all or some of such title matters that are not
Permitted Exceptions such that the Threshold Amount is no longer exceeded on
the Closing Date, as so adjourned, and so long as the aggregate cost to cure
any title objections on the Closing Date as so adjourned does not exceed the
Threshold Amount, Purchaser shall be obligated to close hereunder and receive a
credit in respect of the reasonably estimated cost to cure such title
objections; if the aggregate cost to cure any title objections on the Closing
Date as so adjourned still exceeds the Threshold Amount and Sellers are not
entitled to any further adjournments hereunder or elect not to further adjourn
the Closing, then Purchaser, at its option, may either (i) proceed with the
Closing, in which case Purchaser shall receive a credit against the Purchase
Price equal to the Threshold Amount, or (ii) terminate this Agreement by
written notice delivered on the scheduled or before the re-scheduled Closing
Date. If Purchaser elects to terminate this Agreement as permitted in this
Section, (x) the Escrow Agent shall repay to Purchaser the Downpayment made by
Purchaser, together with any interest earned thereon and (y) Sellers shall pay
to Purchaser contemporaneously with such repayment of the Downpayment and
interest the reasonable search charges imposed by the Title Company in
connection with its examination of title to the Property (the "Title Cost").
This Agreement shall thereupon be deemed canceled and become void and of no
further effect, and neither party shall have any obligations of any nature to
the other hereunder or by reason hereof, except that the provisions of Sections
11.2.2, 17, 18, 24 and 28 hereof shall survive such termination. Except as
otherwise expressly set forth in this Agreement, Sellers shall not be required
to take or bring any action or proceeding or any other steps to remove any
defect in or objection to title or to fulfill any condition or to expend any
moneys therefor, nor shall Purchaser have any right of action against Sellers
therefor, at law or in equity. Notwithstanding the foregoing, but in all events
subject to the provisions of 6.6 hereof, to the extent that any of the
following items are not Permitted Exceptions, Sellers shall on or prior to
Closing pay, discharge or remove of record or cause to be paid, discharged or
removed of record all of the following items (collectively, "Seller's Liens"):
(I) mortgages encumbering the Company's Property Interest (other than the
mortgages securing the Greenwich Loan) and (II) any other lien encumbering the
Company's Property Interest and/or either or both of the Membership Interests
which are in liquidated amounts and which may be satisfied solely by the
payment of money (including the preparation or filing of appropriate
satisfaction instruments in connection therewith).
6.4 Notwithstanding anything in Section 6.3 above to the contrary,
Purchaser may at any time, at Purchaser's option, accept such title as exists
on the Closing Date, without reduction of the Purchase Price or any credit or
allowance on account thereof or any claim against Sellers, but the provisions
of this Section 6.4 shall not be deemed to constitute a waiver of Purchaser's
rights to any credits Purchaser may otherwise be entitled to under this Article
6.
6.5 Notwithstanding anything to the contrary contained in Section 6.1
hereof, to the extent that there are any unpaid real estate taxes, assessments
and water and sewer charges due and payable on the date of Closing encumbering
the Company's Property Interest (as well as any outstanding interest and
penalties thereon), Sellers may, at their option, either (a) satisfy same out
of the Company's or Sellers' funds or from any appropriate bank accounts
maintained by the Tenants-in-Common in respect of the Property (individually
and collectively, the "Property Account"), (b) cause to be paid an amount equal
to 65% of all such outstanding amounts to the appropriate taxing authority, or
(c) allow Purchaser a credit in respect of the Purchase Price in an amount
equal to 65% of all such outstanding amounts, provided that official bills
therefor with interest and penalties thereon figured to said date are furnished
to or obtained by the Title Company at the Closing for payment thereof, in
which case Sellers shall be deemed to have fulfilled their obligations
hereunder with respect to real estate taxes, assessments and water and sewer
charges in respect of the Property; provided, however, that if Sellers elect
the option set forth in clause (b) or (c) of this Section 6.5, Purchaser shall
have the right to elect to terminate this Agreement rather than proceed with
the Closing, in which case Escrow Agent shall promptly thereafter return the
Downpayment hereunder to Purchaser (or, if applicable, Sellers shall deliver
any Downpayment Letter of Credit and/or Additional Downpayment Letters of
Credit to Purchaser) and neither party shall have any further rights, duties or
obligations hereunder, and this Agreement shall be of no further force and
effect, except for the provisions of Sections 11.2.2, 17, 18. 24 and 28, which
provisions shall survive such termination.
6.6 Notwithstanding anything to the contrary contained in Sections
6.1 or 6.3 hereof, any liens for judgments or transfer, inheritance, estate,
franchise, license or other similar taxes or any encumbrances or other title
exceptions which would be grounds for Purchaser to reject title hereunder shall
not be deemed an objection to title if any such liens encumber (a) only the
tenancy-in-common interest of CTKG or (b) the tenancy-in-common interest of
Nominee LLC solely as a result of the acts or omissions of 57th Associates.
Notwithstanding anything to the contrary contained in Section 6.1 hereof, if
the Company's Property Interest shall, at the time of Closing, be subject to
any liens for judgments or transfer, inheritance, estate, franchise, license or
other similar taxes or any encumbrances or other title exceptions which would
be grounds for Purchaser to reject title hereunder, the same shall not be
deemed an objection to title so long as (i) neither the Company nor the Sellers
have knowingly and intentionally suffered or allowed to be placed on the
Company's Property Interest any such lien, (ii) the Company shall have no
personal liability for such lien and (iii) the Company shall have a cause of
action against a third party for the removal of such lien, in which case
Sellers shall have no obligation to pay, remove or cause to be removed any such
lien, it being understood and agreed that if the conditions set forth in
clauses (i), (ii) and (iii) shall not be satisfied, Sellers use all or a
portion of the Purchase Price to satisfy the same and deliver to Purchaser
and/or the Title Company at the Closing instruments in recordable form (and
otherwise in form reasonably satisfactory to the Title Company in order to omit
the same as an exception to any title policy being issued at the Closing to
Purchaser or any mortgagee) sufficient to satisfy and discharge of record such
liens and encumbrances together with the cost of recording or filing such
instruments at regular rates without additional premium.
7. As Is; Access to Property During Contract Period; Operation of
Property.
7.1 Purchaser hereby acknowledges, represents, warrants and agrees to
and with Seller as follows:
7.1.1 Except as is expressly set forth in this Agreement to the
contrary, Seller shall have no obligation hereunder to take any action with
respect to the Property and Purchaser is expressly purchasing the Membership
Interests based upon the existing condition of the Property, "AS IS, WHERE IS,
AND WITH ALL FAULTS" with respect to all facts, circumstances, conditions and
defects, including, without limitation, any violations and penalties of
building, fire, sanitary, environmental, housing and similar laws and
regulations (the "Violations") and, except as is expressly set forth in this
Agreement to the contrary, Sellers have no obligation to determine or correct
any such facts, circumstances, conditions, defects or Violations or to
compensate Purchaser for same. Sellers have specifically bargained for the
assumption by Purchaser of all responsibility to investigate the Property, Laws
and Regulations, Rights, Facts, Space Leases, Service Contracts and Violations
and of all risk of adverse conditions and has structured the Purchase Price and
other terms of this Agreement in consideration thereof. Purchaser has
undertaken all such investigations of the Property, Laws and Regulations,
Rights, Facts, Space Leases, Service Contracts and Violations as Purchaser
deems necessary or appropriate under the circumstances as to the status of the
Property and based upon same, except as is expressly set forth in this
Agreement to the contrary, Purchaser is and will be relying strictly and solely
upon such inspections and examinations and the advice and counsel of its own
consultants, agents, legal counsel and officers and Purchaser is and will be
fully satisfied that, based upon the condition of the Property and the other
assets of the Company, the Purchase Price is fair and adequate consideration
for the Membership Interests and, by reason of all the foregoing except as is
expressly set forth in this Agreement to the contrary, Purchaser assumes the
full risk of any loss or damage occasioned by any fact, circumstance, condition
or defect pertaining to the Property.
7.1.2 Except as is expressly set forth in this Agreement to the
contrary, Sellers hereby disclaim all warranties of any kind or nature
whatsoever (including warranties of habitability and fitness for particular
purposes), whether expressed or implied, including, without limitation,
warranties with respect to the Membership Interests and the Property. Purchaser
further acknowledges that, except as is expressly set forth in this Agreement
to the contrary, Purchaser is not relying upon any representation of any kind
or nature made by Sellers, or any of its employees or agents with respect to
the Membership Interests and the Property, and that, in fact, no such
representations were made except as expressly set forth in this Agreement.
7.2 Purchaser and its authorized representatives, partners, agents,
employees, licensees, contractors and consultants, upon giving Sellers
reasonable prior notice of Purchaser's request, shall, from time to time have
access to (a) the Property for the purpose of inspecting and conducting
engineering and architectural studies, environmental inspections, appraisals,
construction and renovation estimating and marketing and feasibility studies,
and (b) all rent rolls, arrears reports and collection reports, Space Leases,
Space Lease files, Service Contracts, Service Contract files, plans and
specifications, permits, notices from governmental authorities and Employee
records in respect of the Property and in Sellers' possession or control,
provided that Purchaser shall (i) at all times be accompanied by a
representative of Sellers when at the Property and (b) not materially interfere
with the operation of the Property or materially disturb the occupancy of any
Space Lessee. Purchaser hereby indemnifies and holds harmless Sellers, the
Company, Nominee LLC and CTKG and their direct and indirect members from any
and all claims, damage, liability, loss, cost and expense that arises in
connection with all claims arising out of the acts of Purchaser, its authorized
representatives, partners, agents, employees, licensees, invitees, contractors
and consultants in connection with the exercise by Purchaser of its rights
under this Section 7.2.
7.3 Purchaser and its authorized representatives, partners, agents,
employees, licensees, contractors and consultants, upon giving Sellers
reasonable prior notice of Purchaser's request, shall, from time to time have
access to all of the financial books and records with respect to the Property
over which the Company or Sellers exercise possession and control, provided
that Sellers expressly make no representation or warranty as to the accuracy of
such financial books and records and Sellers shall not be liable for any errors
or omissions with respect to such financial books and records, except that
notwithstanding the foregoing, Sellers represent and warrant that they have no
actual knowledge that such books and records contain any material inaccuracies.
7.4 Until the Closing or earlier termination of this Agreement
Sellers shall use commercially reasonable efforts to cause the Company and
Newmark to (a) operate and maintain the Property in a manner consistent with
the manner in which the Property has been operated and maintained prior to the
date hereof and (b) not remove nor knowingly permit the removal from the
Property of any of the personal property that constitutes the Property and that
is owned by the Company and/or the Tenancy-in-Common, except in the ordinary
course of business or unless such item is replaced with a similar item of
comparable utility and value. In furtherance of the foregoing, until the
Closing or earlier termination of this Agreement, Sellers shall use
commercially reasonable efforts to cause the Company to exercise its rights
under the TIC Agreement to cause the Property to be operated and maintained in
a manner consistent with the manner in which the Property has been operated and
maintained prior to the date hereof and to cause the Company and other
Co-Tenants to comply with the terms of the TIC Agreement; provided, however,
that the failure of the other Co-Tenants to comply with the TIC Agreement shall
not be deemed a breach hereunder by Sellers unless such failure otherwise
constitutes a breach under this Agreement.
7.5 Between the date hereof and the Closing Date or earlier
termination of this Agreement, Sellers shall not permit the Company to extend
the term of any Service Contract or to enter into any new or replacement
Service Contracts without the express prior written consent of Purchaser, which
consent shall not be unreasonably withheld or delayed, unless such Service
Contract shall (a) be terminable on sixty (60) days or less prior written
notice without the payment of any penalty or termination fee, and (b) not
require any regularly scheduled payments under such Service Contract in excess
of $25,000.00 per month. If Purchaser fails to respond to Sellers' request to
enter into any new or replacement Service Contract under this Section within
five (5) business days, Purchaser shall be deemed to have consented to such
request of Sellers.
8. Apportionments, Adjustments and Credits.
8.1 At the Closing, (a) the following items shall be apportioned,
adjusted or credited between the parties as of 11:59 PM on the day preceding
the date of Closing and (b) Sellers shall certify in writing to Purchaser that
the information in respect of the apportionments provided by Sellers which is
used as the basis for such apportionments is true and correct in all material
respects. Any errors in the apportionments pursuant to this Article 8 shall be
corrected by appropriate re-adjustment between Sellers and Purchaser
post-closing, provided that notice of any such error, with supporting
calculations, shall be given by Purchaser to Sellers or by Sellers to
Purchaser, as the case may be, no later than one hundred eighty (180) days
after the Closing, if ascertainable within such period, it being understood and
agreed that if any such items or errors are not determinable at Closing, the
apportionment shall be made subsequent to Closing when the charge or error is
determined. Except as otherwise specifically provided for herein, all
apportionments shall be made in the manner recommended by the Customs in
Respect to Title Closings of the Real Estate Board of New York, Inc., and there
shall be no other apportionments or adjustments except as otherwise expressly
provided herein. The items to be apportioned, adjusted and credited are:
8.1.1 Sellers shall receive a credit in an amount equal to 65%
of the amount by which (a) the aggregate cash balances in the Property Account
on the date of Closing exceed (b) the amount of rents paid by Space Lessees in
respect of the month of Closing or future months which comprise a portion of
such aggregate cash balances in the Property Account; provided, however, that
Sellers hereby agree that Sellers shall use commercially reasonable efforts to
cause the aggregate cash balances in the Property Account not to be in excess
of $3,000,000.00 on the Closing Date.
8.1.2 Purchaser shall receive any credit against the Purchase
Price that Purchaser may be entitled to under Article 6 hereof with respect to
title matters.
8.1.3 Purchaser shall receive a credit in an amount equal to 65%
of all Tenant Improvement Allowances that have not been paid prior to the
Closing Date.
8.1.4 With respect to the Greenwich Loan, Sellers shall receive
the following credits in respect of remaining funds in the following Reserve
Accounts (as such term is defined in Section 18 of the Greenwich Loan Agreement
(as defined in Section 11.1 hereof):
(a) A credit in an amount equal to 65% of the sum of (i)
the funds remaining in the Leasing Security Deposit (as such term is defined in
Section 18(a) of the Greenwich Loan Agreement) as of the Closing Date plus (ii)
all interest earned thereon as of the Closing Date and not yet paid to the
Company or the other Co-Tenants, whether or not such interest has been credited
to such account as of the Closing Date;
(b) A credit in an amount equal to 65% of the sum of (i)
the funds remaining in the Fifth and Sixth Floor Conversion Reserve (as defined
in Section 18(b) of the Greenwich Loan Agreement) as of the Closing Date plus
(ii) all interest earned thereon as of the Closing Date and not yet paid to the
Company or the other Co-Tenants, whether or not such interest has been credited
to such account as of the Closing Date;
(c) A credit in an amount equal to 65% of the sum of (i)
the funds remaining in the Leasing Reserve Account (as defined in Section 18(d)
of the Greenwich Loan Agreement) as of the Closing Date plus (ii) all interest
earned thereon as of the Closing Date and not yet paid to the Company or the
other Co-Tenants, whether or not such interest has been credited to such
account as of the Closing Date;
(d) A credit in an amount equal to 65% of the sum of (i)
the funds remaining in the Replacement Reserve Account (as defined in Section
18(e) of the Greenwich Loan Agreement) as of the Closing Date plus (ii) all
interest earned thereon as of the Closing Date and not yet paid to the Company
or the other Co-Tenants, whether or not such interest has been credited to such
account as of the Closing Date; and
(e) A credit in an amount equal to 65% of the sum of (i)
any funds remaining in any capital improvement reserve account maintained in
connection with the Greenwich Loan as of the Closing Date plus (ii) all
interest earned thereon as of the Closing Date and not yet paid to the Company
or the other Co-Tenants, whether or not such interest has been credited to such
account as of the Closing Date.
8.1.5 Purchaser shall receive a credit in an amount equal to 65%
of all Payable Commissions that have not been paid prior to the Closing Date.
8.1.6 Purchaser shall receive a credit in an amount equal to 65%
of the reasonably estimated costs, as of the Closing Date, to substantially
complete that portion of the 5th and 6th Floor Office Conversion not
substantially completed as of the Closing Date. Notwithstanding anything to the
contrary herein contained, at least ten (10) days and not earlier than twenty
(20) days prior to the Closing Date, Sellers will furnish Purchaser with a
certification from the Co-Tenants' architect, engineer or consulting
construction manager (a) estimating the cost to substantially complete that
portion of the 5th and 6th Floor Office Conversion not substantially completed
as of the Closing Date and (b) specifying all amounts expended in respect of
the 5th and 6th Floor Office Conversion after the date hereof through the date
of such certification ("Sellers' Estimate"). If Purchaser disagrees with
Sellers' Estimate, Purchaser shall, within five (5) days of Purchaser's receipt
of Sellers' Estimate, furnish Sellers with a certification from Purchaser's
architect, engineer or consulting construction manager estimating the cost to
substantially complete that portion of the 5th and 6th Floor Office Conversion
not substantially completed as of the Closing Date ("Purchaser's Estimate"). If
Purchaser does not submit a Purchaser's Estimate as provided herein,
Purchaser's credit pursuant to this Section 8.1.6 shall be in an amount equal
to 65% of Sellers' Estimate. If Purchaser submits a Purchaser's Estimate as
provided herein, Purchaser's credit pursuant to this Section 8.1.6 shall
nevertheless be in an amount equal to 65% of Seller's Estimate, except that if
Purchaser's Estimate is more than 102% of Seller's Estimate, Purchaser shall
have the right to cause the correct amount of such credit to be determined
pursuant to binding arbitration by a single arbitrator appointed in accordance
with the American Arbitration Association rules and procedures for binding
arbitration. Such arbitrator shall be impartial and shall have not less than
ten (10) years' experience in the County of New York in a calling related to
the construction, renovation and improvement of class "A" office buildings.
Within twenty (20) days following the appointment of such arbitrator each party
shall attend a hearing before such arbitrator wherein each party shall submit a
written report setting forth its determination of the correct amount of
Purchaser's credit pursuant to this Section 8.6.1 with such information and
evidence contained therein as the party submitting such report shall deem
relevant. The arbitrator shall, within thirty (30) days following such hearing
and submission of such evidence and information, render a decision as to what
the reasonably estimated cost to substantially complete the 5th and 6th Floor
Office Conversion was as of the Closing Date (the "Arbitrator's Estimate"). If
the Arbitrator's Estimate is more than 102% of Sellers' Estimate, Sellers'
shall pay to Purchaser within ten (10) days of notification of the arbitrator's
decision 65% of the amount by which (y) the lesser of (1) Purchaser's Estimate
and (2) the Arbitrator's Estimate exceeds (z) Sellers' Estimate, and Seller
shall pay the fees of such arbitrator. If the Arbitrator's Estimate is 102% of
or less than 102% of Seller's Estimate, Purchaser shall not be entitled to any
additional credit pursuant to this Section 8.6.1 and Purchaser shall pay the
fees of such arbitrator. For the purposes of this Section 8.1.6, the term
"substantial completion" or "substantially completed" or words of similar
import shall be deemed to mean such stage of completion of the 5th and 6th
Floor Conversion Work as shall leave not more than $25,000 of additional cost
to complete the same.
8.1.7 a. An amount equal to 65% of all fixed rents under Space
Leases which are (i) collected prior to the Closing and (ii) applicable to the
month (or other applicable collection period) in which the Closing occurs shall
be apportioned between Sellers and Purchaser.
b. If, at the Closing, any fixed rents (including
electricity, if applicable) are past due by any Space Lessee, and provided
Sellers have delivered to Purchaser, in reasonable detail, a breakdown of all
such past due amounts as of the Closing, Purchaser agrees that the first moneys
received by it from such Space Lessee shall be disbursed as follows:
(i) First, to Sellers and Purchaser, in an amount
equal to 65% of the fixed rents (including electricity, if applicable) for the
month of Closing, shall be apportioned;
(ii) Next, to Sellers, in an amount equal to 65% of
all other arrearage fixed rents (including electricity, if applicable) owing
under the Space Lease or Space Leases pursuant to which the City University of
New York leases space at the Property for all periods prior to the month in
which the Closing occurs;
(iii) Next to Purchaser and the other
Tenants-in-Common in respect of all other fixed rents (including electricity,
if applicable) owing by all such Space Lessees for any period after the month
in which the Closing occurs, less the reasonable costs and expenses incurred by
the Tenancy-in-Common in connection with the collection thereof which shall be
allowed to Purchaser therefrom, until all such fixed rents have been paid in
full; and
(iv) An amount equal to 65% of the balance, if any,
less an amount equal to 65% of the reasonable costs and expenses incurred by
the Tenancy-in-Common in connection with the collection thereof, to Sellers.
Each party agrees to remit reasonably promptly to the other the
amount of such rents to which such party is so entitled and to account to the
other party monthly in respect of same. Sellers shall have the right from time
to time for a period of one hundred eighty (180) days following the Closing, on
reasonable prior notice to Purchaser, to review Purchaser's rental records with
respect to the Property to ascertain the accuracy of such accountings.
Purchaser shall have the right from time to time for a period of one hundred
eighty (180) days following the Closing, on reasonable prior notice to Sellers,
to review Sellers' rental records with respect to the Property to ascertain the
accuracy of such accountings. The fixed rents (including electricity, if
applicable) received by Sellers after the Closing shall be apportioned and
remitted, if applicable, as hereinabove provided.
c. If the Closing shall occur prior to the time when any
rental payments for fuel pass-alongs, so-called escalation rent or charges
based upon real estate taxes, operating expenses, labor costs, cost of living
increases or like items (collectively, "Overage Rent") is payable, then such
Overage Rent for the applicable accounting period in which the Closing occurs
shall be apportioned subsequent to the Closing. Purchaser shall pay over to
Sellers, within thirty (30) days after Purchaser's receipt thereof, a prorated
amount equal to 65% of all such Overage Rent received by the Tenancy-in-Common
(less 65% of the reasonable costs and expenses incurred in the collection
thereof incurred by the Tenancy-in-Common, which shall be allowed to Purchaser
therefrom) based upon the portion of such accounting period which occurs prior
to the Closing (to the extent not theretofore collected by the Company and/or
Tenants-in-Common on account of such Overage Rent prior to Closing). In
addition, Purchaser shall pay to Sellers 65% of all Overage Rent (less 65% of
the reasonable costs and expenses incurred by the Tenancy-in-Common in the
collection thereof which shall be allowed to Purchaser therefrom) payable
subsequent to the Closing with respect to an accounting period which expired
prior to the Closing, within thirty (30) days after receipt thereof by the
Tenancy-in-Common, and shall, upon written request, account to Sellers in
respect of the same. Sellers shall furnish to Purchaser all information with
respect to the period prior to the Closing reasonably necessary for the billing
of such Overage Rent. If, prior to Closing, Sellers shall collect any sums on
account of Overage Rent or fixed rent for a year or other period, or any
portion of such year or other period, beginning prior but ending on or after
the Closing Date, such sum shall be apportioned at the Closing as of the date
of Closing as aforesaid.
d. Overage Rent payable by Space Lessees based on an
estimated amount and subject to adjustment or reconciliation pursuant to the
related Space Leases subsequent to the Closing shall be apportioned as provided
in Section 8.1.7(c) and shall be re-apportioned as and when the related Space
Lessee's actual obligation for such Overage Rent is reconciled pursuant to the
related Space Lease.
e. There shall be credited to Purchaser 65% of all prepaid
fixed rent and Overage Rent for periods on and after the Closing Date.
The provisions of this subsection 8.1.7 shall survive the Closing.
8.1.8 An amount equal to 65% of all real estate taxes, unmetered
water and sewer charges and vault charges, if any, and any and all other
municipal or governmental assessments of any and every nature levied or imposed
upon the Property, on the basis of the fiscal year or calendar year for which
assessed shall be apportioned. If the Closing shall occur before the tax rate
is fixed, the apportionment of taxes shall be upon the basis of the tax rate
for the next preceding fiscal period applied to the latest assessed valuation.
Promptly after the new tax rate is fixed for the fiscal period in which the
Closing takes place, the apportionment of real estate taxes shall be
recomputed.
8.1.9 An amount equal to (a) 65% of all charges and fees due under
telephone contracts, if any, and contracts for the supply to the Property of
heat, steam, electric power, gas and light, if any, shall be apportioned
between Sellers and Purchaser, and (b) 65% of all deposits, if any, made by the
Tenancy-in-Common as security under any such public service contracts shall be
credited to Sellers if such amounts remain on deposit after the Closing for the
benefit of Purchaser).
8.1.10 An amount equal to 65% of any charges or fees for transferable
licenses and permits for the Property.
8.1.11 An amount equal to 65% of any charges payable under Service
Contracts shall be apportioned on the basis of the period covered by such
payments, including, without limitation, charges in connection with the
Employees including, without limitation, salary, bonuses, vacation and sick day
allowances and pension or other benefit fund contributions.
8.1.12 An amount equal to 65% of all fuel, if any, then stored at the
Property shall be apportioned on the basis of the Tenancy-in-Common's last cost
therefor, including sales tax, as evidenced by a written statement of the fuel
oil supplier for the Property, which statement shall be conclusive as to
quantity and cost, absent fraud.
8.1.13 An amount equal to 65% of all other items customarily
apportioned in connection with sales of similar property in the State of New
York.
8.2 If there is a water meter on the Property, Sellers shall endeavor
to furnish a reading to a date not more than thirty (30) days prior to the
Closing Date, and the unfixed meter charge and the unfixed sewer rent, if any,
based thereon for the intervening time shall be apportioned on the basis of
such last reading. If Sellers fails or are unable to obtain such reading, the
Closing shall nevertheless proceed and the parties shall apportion an amount
equal to 65% of the meter charges and sewer rents on the basis of the last
reading and bill received by the Company or the Tenants-in-Common and the same
shall be appropriately readjusted after Closing on the basis of the next
subsequent bills. Unpaid water meter and other utility charges of Space Lessees
under Space Leases at the Closing Date (whether such water and utility charges
are determined by submetering or direct metering) shall not be an objection to
title and Purchaser shall look solely to such Space Lessee for collection. The
provisions of this Section 8.2 shall survive the Closing.
9. Closing Deliveries.
9.1 At or prior to the Closing, Sellers shall make, have made or
caused to be made, the following deliveries:
9.1.1 Each Seller shall execute, acknowledge and deliver to
Purchaser an instrument of assignment and assumption with respect to such
Seller's Membership Interest in the form attached hereto as Exhibit R and made
a part hereof (the "Assignments").
9.1.2 To the extent that Sellers or the Company are actually in
possession of any of the following documents and items, Sellers shall deliver
the same to Purchaser (and with respect to any such deliveries that are
documents, Sellers shall deliver executed originals of same, or, to the extent
Sellers or the Company are not in possession of originals, copies of same) (a)
with respect to the Property, any Space Leases, security deposits in respect of
the Space Leases, correspondence and other records, if any, pertaining to such
Space Leases and the Property, all keys to and all combinations to locks at the
Property tagged for identification, licenses, permits, warranties and
guarantees and plans and specifications with respect to the Property, and (b)
with respect to the Tenancy-in-Common, the TIC Agreement. To the extent Sellers
deliver copies of any documents under this subsection, Sellers shall certify
that such copies are true, correct and complete copies.
9.1.3 Each Seller shall deliver to Purchaser a certificate, duly
executed and acknowledged by such Seller, in accordance with Section 1445 of
the Internal Revenue Code of 1986, as amended (the "Code").
9.1.4 With respect to each of the Company, Associates LLC and
Nominee LLC, Blackacre MM LLC shall deliver to Purchaser copies of their (a)
certificate of formation, (b) operating agreement, (c) certificate of good
standing dated not more than 15 days prior to the Closing Date, (d)
qualification to do business in any jurisdiction which such entity has so
qualified, (e) any consents of their respective members required under their
operating agreements to the transaction contemplated herein, and (f)
resolutions authorizing the transaction contemplated herein, which shall be
accompanied by a certification signed by the managing member or secretary or
assistant secretary of such Seller certifying that such copies are true,
complete and correct.
9.1.5 With respect to 57th Associates, Blackacre MM LLC shall
deliver to Purchaser copies of its (a) business certificate and any amendments
thereto, to the extent such documents have heretofore been filed in New York
County, and (b) partnership agreement and any amendments thereto, to the extent
the Company or either Seller has such documents in their possession, which
shall be accompanied by a certification signed by the managing member or
secretary or assistant secretary of such Seller, certifying that, to the best
of such person's knowledge, such copies are true, complete and correct.
9.1.6 Sellers shall deliver to Purchaser estoppel certificates
(individually, an "Estoppel" and, collectively, the "Estoppels") dated after
the date of this Agreement either (a) in the form attached hereto as Exhibit S
attached hereto and made a part hereof, or (b) in the event any Space Lessee's
Space Lease provides for the form of Estoppel that such Tenant shall be
required to deliver to the landlord under such Space Lease as set forth the
matters to be contained in such as Estoppel in connection with a sale and/or
ground lease and/or mortgaging of all or any part of the Property, then an
Estoppel in such form or containing those matters with respect to such Space
Lessee, executed and delivered by the Space Lessees, provided that Sellers
shall only be required hereunder to deliver to Purchaser at the Closing
Estoppels from Space Lessees under Space Leases occupying at least 65% of the
rentable square feet at the Property and included in such Estoppels shall be
Estoppels from the following three (3) Space Lessees: (i) BMW, (ii) City
University of New York, and (iii) Columbia Broadcasting System.
9.1.7 If Greenwich Capital is required to deliver an estoppel
certificate under the Greenwich Loan Documents (as hereafter defined) in
connection with the Greenwich Loan in respect of the transaction contemplated
hereunder, then Sellers shall deliver to Purchaser an estoppel certificate
executed by Greenwich Capital in respect of the Greenwich Loan in the form set
forth in the Greenwich Loan Documents, or if no form is set forth therein, in
such form as Greenwich Capital shall agree to deliver.
9.1.8 To the extent that the material underlying facts with
respect to any of Sellers' representations and warranties in Sections 5.1 and
5.2 hereunder have changed, a certificate of Sellers setting forth all such
material changes to such representations and warranties.
9.1.9 Sellers shall deliver to Purchaser a balance sheet of the
Company which has been audited by David Berdon & Company and is dated and
covers the financial position of the Company as of a date no earlier than
fifteen (15) days prior to the Closing, which audited balance sheet shall show
no material change in the assets and liabilities of the Company as reflected on
the Company's Balance Sheet dated as of August 31, 1998 attached as Schedule 1
except for those liabilities incurred in the ordinary course of business of the
Company since August 31, 1998. At Closing, Seller shall certify to Purchaser
that the Company has not incurred any liabilities except as reflected on such
audited balance sheet other than those liabilities incurred in the ordinary
course of business of the Company since the date thereof. Such audited balance
sheet shall be prepared on the same basis as the Company's Balance Sheet.
9.2 At or prior to the Closing, Purchaser shall make, have made or
caused to be made, the following deliveries:
9.2.1 Purchaser shall pay the balance of the Purchase Price
required pursuant to Section 3.2. hereof.
9.2.2 Purchaser shall deliver to Sellers (a) if Purchaser is a
corporation, copies of Purchaser's (i) certificate of incorporation, (ii)
by-laws, (iii) resolutions of its board of directors authorizing the
transaction contemplated by this Agreement and (iv) a good standing certificate
dated not more than fifteen (15) days prior to the Closing Date, (b) if
Purchaser is a limited partnership, (i) copies of Purchaser's certificate of
limited partnership, (ii) resolutions of the general partner of Purchaser
authorizing the transaction contemplated by this Agreement, (iii) consents of
Purchaser's partners, if required under Purchaser's agreement of limited
partnership and (iv) a good standing certificate dated not more than fifteen
(15) days prior to the Closing Date, (c) if Purchaser is a limited liability
company, Purchaser's (i) certificate of formation, (ii) operating agreement,
(iii) good standing certificate dated not more than fifteen (15) days prior to
the Closing Date, (iv) any consents of Purchaser's members required under the
operating agreement to the transaction contemplated herein and (v) resolutions
authorizing the transaction contemplated herein, which documents shall be
accompanied by a certification signed by a secretary, assistant secretary,
managing member, or general partner, as the case may be, certifying that such
copies are true, complete and correct.
9.3 Sellers and Purchaser, at the Closing, shall prepare, execute and
deliver to each other, subject to all the terms and provisions of this
Agreement, the following documents:
9.3.1 An amendment to the Company's operating agreement and
certificate of formation, if required, pursuant to which Purchaser shall be
admitted as a member of the Company and Sellers withdraw as members of the
Company in the form attached hereto as Exhibit T and made a part hereof.
9.3.2 Combined Real Estate Transfer Tax Return and Credit Line
Mortgage Certificate, Form TP-584.
9.3.3 New York City Department of Finance Real Property Transfer
Tax Return.
9.3.4 Sellers and/or Purchaser shall execute and deliver those
documents required to be executed and delivered pursuant to Article 13 hereof.
9.3.5 Sellers and Purchasers shall execute and deliver such
other instruments and documents as may be (a) set forth in Articles 12 and 13,
and (b) reasonably required to effectuate the assignment of the Membership
Interests to Purchaser and the admission of Purchaser as a member of the
Company.
10. Conditions to Closing Obligations.
10.1 Notwithstanding anything to the contrary contained herein, the
obligation of Sellers to close title in accordance with this Agreement is
expressly conditioned upon the fulfillment by and as of the time of Closing of
each of the conditions listed below, provided that Sellers, at their election,
evidenced by written notice delivered to Purchaser at or prior to the Closing,
may waive any of such conditions:
10.1.1 Purchaser shall have executed and delivered to Sellers
all of the documents, shall have paid all sums of money and shall have taken or
caused to be taken all of the other action required of Purchaser in this
Agreement.
10.1.2 All representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects as of the
date of Closing.
10.1.3 The Greenwich Consent (as hereinafter defined) shall have
been obtained.
10.2 Notwithstanding anything to the contrary contained herein, the
obligation of Purchaser to close title in accordance with this Agreement is
expressly conditioned upon the fulfillment by and as of the time of the Closing
of each of the conditions listed below, provided that Purchaser, at its
election, evidenced by written notice delivered to Sellers at or prior to the
Closing, may waive all or any of such conditions:
10.2.1 Sellers shall have executed and delivered to Purchaser
all of the documents, and shall have taken or caused to be taken all of the
other action, required of Sellers under this Agreement.
10.2.2 All representations and warranties made by Sellers in
this Agreement shall be true and correct in all material respects as of the
Closing Date, except that to the extent the facts underlying such
representations may have changed as of the Closing, and Sellers shall have
represented in the certificate delivered pursuant to subsection 9.1.8 such
changed facts and circumstances, provided, however, that if on the Closing
Date, any such representations and warranties are not true and correct in all
material respects, Purchaser shall in any event be required to close hereunder
and purchase the Membership Interests unless the breach of any representations
and warranties will have, in the aggregate, a "material adverse effect" (as
such time is defined below). If Purchaser is required to close hereunder
because Sellers breach or breaches of their representations and warranties do
not, in the aggregate, have a "material adverse effect," Purchaser shall be
entitled to receive a credit in respect of the Purchase Price in the amount of
the reasonably estimated cost to cure such breach or breaches and/or the
reasonably estimated diminution in value of the Membership Interests to
Purchaser caused by such breach or breaches, in an amount not to exceed
$750,000.00. If any breach of Sellers' representations and warranties do have,
in the aggregate, a "material adverse effect," Purchaser may elect in any event
to close hereunder and acquire the Membership Interests, in which event
Purchaser shall be entitled to a credit in respect of the Purchase Price in the
amount of $750,000.00. The term "material adverse effect" as used in this
Agreement shall mean a material adverse effect on the results of operations or
financial condition of the Company and/or Associates LLC in an amount greater
than $750,000.00.
10.2.3 The Greenwich Consent shall have been obtained.
10.2.4 As of the Closing Date, there shall have been no material
liabilities incurred by the Company since the date of the Company's Balance
Sheet (either individually or in the aggregate) and there shall have been no
material liabilities incurred by Associates LLC since the date of Associates
LLC's Balance Sheet (either individually or in the aggregate), except those
incurred in the ordinary course of business.
10.2.5 In the event Purchaser elects to obtain title insurance
from the Title Company in connection with its acquisition of the Membership
Interests, the Title Company shall be willing to insure title to the
Purchaser's interest in the Property, pursuant to an ALTA 1992 Owner's Policy
of Title Insurance in the amount of the Purchase Price at regular rates and
without additional premium (which shall be deemed to include the cost of any
endorsements to title requested by Purchaser), subject only to the Permitted
Exceptions (including, without limitation, the documents evidencing and/or
securing the Greenwich Loan) and as otherwise provided in this Agreement. In
connection with any such title policy being issued by the Title Company, the
Title Company shall, at Purchaser's request, be willing to provide to Purchaser
a non-imputation endorsement to such policy at standard rates for such
endorsement (which cost shall be payable by Purchaser) upon receipt of a
Non-Imputation Affidavit (the "Non-Imputation Affidavit") in the form attached
hereto as Exhibit U and made a part hereof, and Sellers hereby agree to execute
and deliver such Non-Imputation Affidavit.
11. Consent of Mortgagee.
11.1 Reference is made to that certain first mortgage loan made by
Greenwich Capital Financial Products, Inc. ("Greenwich Capital"), as lender, to
the Company, Nominee LLC and CTKG, as borrowers, in the original principal
amount of $45,000,000 (the "Greenwich Loan"), evidenced and/or secured by,
among other things, that certain (a) Consolidated, Amended and Restated
Mortgage Note, dated as of October 31, 1997, in the original principal amount
of $45,000,000.00 given by the Co-Tenants, as makers, in favor of Greenwich
Capital, as payee (the "Greenwich Note"), (b) Loan Agreement, dated as of
October 31, 1997, between Co-Tenants, as borrowers, and Greenwich Capital, as
lender (the "Greenwich Loan Agreement"), (c) Agreement of Confirmation,
Reaffirmation, Consolidation and Modification of Mortgage and Note (Fee), dated
as of October 31, 1997, given by the Co-Tenants, as mortgagors, in favor of
Greenwich Capital, as mortgagee, recorded in the Office of the City Register of
New York County (the "Register's Office") on August 28, 1998, in Reel 2692,
Page 914, which together with the mortgages consolidated therein, as more
particularly set forth therein, encumbers the Co-Tenants' interest in the
Property (the "Greenwich Mortgage"), (d) Assignment of Leases and Rents, dated
as of October 31, 1997, between the Co-Tenants, as assignors, and Greenwich
Capital, as assignee, recorded in the Register's Office on August 28, 1998, in
Reel 2692, Page 993 (the "Greenwich Assignment of Leases"), (e) Cash Collateral
Account Security, Pledge and Assignment Agreement, dated as of October 31,
1997, between the Co-Tenants, as borrowers, and Greenwich Capital, as lender
(the "Greenwich Cash Collateral Agreement"), (f) Hazardous Material Guaranty
and Indemnification Agreement, dated as of October 31, 1997, given by the
Co-Tenants in favor of Greenwich Capital (the "Greenwich Indemnity" and,
together with the Greenwich Note, the Greenwich Loan Agreement, the Greenwich
Mortgage, the Greenwich Assignment of Leases and the Greenwich Cash Collateral
Agreement, and all of the other documents and instruments evidencing and/or
securing and/or otherwise delivered in connection with the Greenwich Loan, the
"Greenwich Loan Documents").
11.2 Sellers have informed Purchaser that under the Greenwich Loan
Documents, the consent and approval of Greenwich Capital is required in
connection with the assignment and sale of the Membership Interests. It shall
be a condition precedent to Sellers' and Purchaser's obligation hereunder that
the consent of Greenwich Capital be obtained on or prior to the date of
Closing. Sellers shall use commercially reasonable, good faith efforts to
obtain the consent of Greenwich Capital to the sale of the Membership Interests
to Purchaser in accordance with the terms hereof, including, without
limitation, the provisions of Article 13 (the "Greenwich Consent") on or before
the date that is twenty-one (21) days from the date hereof (such date being
hereinafter referred to as the "Greenwich Consent Election Date"), which
Greenwich Consent shall be subject only to (a) the payment of any fees, costs
and expenses imposed by Greenwich Capital in connection therewith, (b) the
preparation, execution and delivery of appropriate documentation required by
Greenwich Capital in connection with the sale and purchase of the Membership
Interests (including, without limitation, any legal opinions that may be
required in connection therewith), and (c) compliance with other customary
applicable terms and conditions imposed by Greenwich Capital in connection
therewith (including the manner in which Purchaser or the entity or entities
taking title to the Membership Interests are structured). Purchaser shall
cooperate fully with Sellers in obtaining such consent and promptly comply with
all customary and commercially reasonable requests of Greenwich Capital in
connection therewith, including, without limitation, the execution and delivery
of any documents that Greenwich Capital or its attorneys may reasonably require
as a condition to granting the Greenwich Consent and the compliance by
Purchaser with any changes to the organizational documents of Purchaser or the
entities Purchaser may designate as permitted hereunder to take title to the
Membership Interests; provided, however, that in connection with obtaining the
Greenwich Consent, the following terms and conditions shall apply:
11.2.1 Except as expressly provided in Section 11.2.2, neither
Sellers nor Purchaser shall be obligated to pay any fees, costs or expenses of
any kind whatsoever to Greenwich Capital or any other third party or expend any
sums in respect of obtaining the Greenwich Consent;
11.2.2 Sellers shall pay the legal fees and disbursements of the
attorneys for Greenwich Capital in an amount not to exceed $5,000.00 in
connection with obtaining the Greenwich Consent and Purchaser shall pay all
additional legal fees and disbursements of the attorneys for Greenwich Capital
in connection with obtaining the Greenwich Consent and Purchaser's own legal
fees and disbursements in connection with obtaining the Greenwich Consent;
11.2.3 Purchaser shall not be obligated to execute and deliver
any document in connection with the Greenwich Consent either in Purchaser's
individual capacity or on behalf of the Company if such document would impose
upon Purchaser or the Company obligations in excess of those imposed upon
Sellers and the Company under the Greenwich Loan Documents as of the date
hereof;
11.2.4 Sellers shall not be obligated to accept any consent to
the transaction hereunder unless such consent or other documentation executed
and delivered in connection therewith provides that Sellers and the principals
of Sellers, as well as any guarantors in respect of Sellers' obligations under
the Greenwich Loan Documents, shall be released from any further obligations or
liability under the Greenwich Loan Documents on and after the date of the
Closing; and
11.2.5 Purchaser shall, if required as a condition to the
granting of the Greenwich Consent, form one or more Affiliates or restructure
one or more Affiliates, to act as assignees hereunder to take title to the
Membership Interests as "bankruptcy remote" entities in accordance with the
customary requirements of Greenwich Capital and its attorneys.
11.3 In the event the Greenwich Consent is not obtained on or
prior to the Greenwich Consent Election Date, either Purchaser or Sellers may
at any time thereafter, at their respective options, elect to terminate this
Agreement by sending written notice to the other party of such election to
terminate (the "Greenwich Termination Notice"), in which event this Agreement
shall be deemed automatically terminated, Escrow Agent shall promptly
thereafter return the Downpayment hereunder to Purchaser and neither party
shall have any further rights, duties or obligations hereunder, and this
Agreement shall be of no further force and effect, except for the provisions of
Sections 11.2.2, 17, 18, 24 and 28, which provisions shall survive such
termination. Notwithstanding the foregoing, in the event the Greenwich Consent
is obtained after the Greenwich Consent Election Date, but prior to (a) the
Closing Date, and (b) the giving of the Greenwich Termination Notice by
Purchaser and/or Sellers, then Purchaser and Sellers shall be deemed to have
waived the right to terminate this Agreement provided in this Section.
11.4 With respect to the Greenwich Loan, Sellers hereby represent and
warrant to Purchaser as follows:
11.4.1 The Greenwich Loan Documents are in full force and effect
and that the Company has not received any notice of any defaults thereunder
and, to the best of Sellers' actual knowledge, neither the Company nor the
other Co-Tenants are in default under the Greenwich Loan Documents.
11.4.2 The Company has not entered into nor agreed to any
modification of the Greenwich Loan Documents.
11.4.3 The outstanding principal balance under the Greenwich
Loan Documents is not in excess of $45,000,000.00.
11.5 With respect to the Greenwich Loan, Sellers hereby agree
that until the Closing Date or earlier termination of this Agreement, with the
express prior written consent of Purchaser, Sellers shall not (a) permit the
Company to enter into any modification of any of the Greenwich Loan Documents
or (b) permit the Company to exercise the right to convert the Greenwich Loan
to long term fixed rate financing as permitted under the Greenwich Loan
Documents.
11.6 The obligations of the Company under the Greenwich Loan
Documents shall survive the closing of title to the Membership Interests and
there shall be no adjustment in the Purchase Price of any kind whatsoever in
respect of the Greenwich Loan (including on account of any amortization of the
outstanding principal balance of the Greenwich Loan which results in such
outstanding principal balance being reduced below $45,000,000.00), Purchaser,
in determining the Purchase Price and agreeing to same, having taken into
account the continuing obligations of the Company and the other Co-Tenants and
the lien against the Property created by the Greenwich Mortgage, the Greenwich
Assignment of Rents and the other Greenwich Loan Documents.
11.7 The representations and warranties of Sellers contained in
Section 11.4 shall survive the Closing; provided, however, that to the extent
Sellers deliver to Purchaser the estoppel described in Section 9.1.7, the
representations and warranties as to the matters expressly covered therein
shall be deemed deleted and shall not survive the Closing.
12. BMW Purchase Option
12.1 Reference is made to that certain Lease, dated as of May 1,
1996, between Kaufman Newmark Realty Corporation, as Agent for 555 W. 57th
Associates, as landlord, and BMW, as tenant, as amended by (a) a Supplemental
Agreement to Lease, dated as of May 1, 1996, (b) a First Amendment to Lease,
dated as of August 7, 1997 and (c) an Agreement of Confirmation of Delivery of
Possession, dated as of August 7, 1997 (such Lease, as so amended, being
referred to herein as the "BMW Lease"), pursuant to which BMW leases certain
premises at the Property as more particularly set forth in the BMW Lease (the
"BMW Premises"). Pursuant to Article 40 of the BMW Lease, BMW has the right to
purchase the BMW Premises and, in connection therewith, to cause the
Co-Tenants, as landlords under the BMW Lease, to convert the Property into a
condominium containing a separate commercial condominium unit for the BMW
Premises (such rights as are contained in Article 40 of the BMW Lease being
referred to herein as the "BMW Purchase Option"), which BMW Purchase Option
shall terminate on February 1, 1999 (the "BMW Option Termination Date"), if not
exercised or waived by BMW prior to such date.
12.2 If (a) BMW has waived the BMW Purchase Option in writing in form
and substance reasonably satisfactory to Purchaser and otherwise sufficient for
the Title Company to omit the BMW Purchase Option as an exception from any
title policy it may issue to Purchaser in connection with the acquisition of
the Membership Interests or (b) BMW has taken no action with respect to the BMW
Purchase Option by the Closing Date and the Closing Date is on or after April
1, 1999, there shall be no reduction in the Purchase Price at the Closing in
respect of the BMW Purchase Option, and the further provisions of this Article
12 shall be of no further force and effect.
12.3 If BMW has duly exercised the BMW Purchase Option prior to the
BMW Option Termination Date, on the Closing Date the Purchase Price (and,
therefore, the applicable amount payable pursuant to Section 3.2.2) shall be
reduced by an amount equal to $4,000,000.00 (the "BMW Price Adjustment");
provided, however, that if the Closing Date has occurred prior to BMW's
exercise of the BMW Purchase Option, the provisions of Section 12.6(a) shall
apply.
12.4 If (a) after the BMW Option Termination Date but prior to April
1, 1999 BMW has asserted in writing either that it (i) has theretofore duly
exercised the BMW Purchase Option prior to the BMW Option Termination Date or
(ii) remains entitled under applicable law to and does duly and timely exercise
the BMW Purchase Option (a "BMW Option Assertion") and (b) the Closing Date is
prior to April 1, 1999, the provisions of Section 12.6(b) shall apply.
12.5 If (a) BMW has taken no action with respect to the BMW Purchase
Option by the Closing Date and the Closing Date is prior to April 1, 1999 and
(b) there shall occur a BMW Option Assertion, there shall be no reduction in
the Purchase Price at the Closing in respect of the BMW Purchase Option, and
the provisions of Section 12.6(b) shall apply.
12.6 Notwithstanding anything to the contrary herein contained,
Purchaser shall be entitled to receive a return of a portion of the Purchase
Price from Sellers (a) in the case of the proviso contained in Section 12.3, in
an amount equal to the BMW Price Adjustment or (b) in the case of Sections 12.4
or 12.5, as applicable, in an amount equal to the lesser of (i) the BMW Price
Adjustment or (ii) the diminution in value of Purchaser's investment in the
Membership Interests as a result of BMW's exercise of the BMW Purchase Option,
taking into account all consideration payable by BMW in connection therewith
and any cost to Purchaser in effecting a BMW Settlement (as hereinafter
defined) (the "BMW Settlement Adjustment"), in the event that there shall occur
a BMW Option Assertion after the BMW Option Termination Date but prior to April
1, 1999 and BMW shall have been determined pursuant to an order of a court of
competent jurisdiction to have duly and timely exercised the BMW Purchase
Option (together with Seller's obligations under subdivision (a) above,
"Seller's Refund Obligation"). Blackacre Capital Partners, L.P., by execution
of this Agreement at the foot hereof, hereby guarantees to Purchaser payment
(and not merely the collectibility of) Seller's Refund Obligation as and when
required pursuant to this Section 12.6. Purchaser shall use all commercially
reasonable efforts to defend any BMW Option Assertion and prosecute any
litigation arising therefrom, with counsel designated by Purchaser, and may, in
its reasonable judgment, settle the same without Sellers consent (the "BMW
Settlement"); provided, however, that if there shall occur a BMW Settlement,
Purchaser shall provide written notice to Sellers (the "BMW Settlement Notice")
(i) setting forth a reasonably detailed explanation of the terms and conditions
of the BMW Settlement, (ii) containing copies of all settlement documents
executed in connection therewith and (iii) setting forth the portion of the BMW
Price Adjustment to which Purchaser believes, in good faith, it is entitled as
the BMW Settlement Adjustment (the "BMW Proposed Settlement Adjustment"). If
Sellers accept the BMW Proposed Settlement Adjustment as the BMW Settlement
Adjustment, the BMW Proposed Settlement Adjustment shall constitute the BMW
Settlement Adjustment and Sellers shall pay to Purchaser Seller's Refund
Obligation within ten (10) days of Seller's receipt of the BMW Settlement
Notice. If Sellers do not accept the BMW Proposed Settlement Adjustment as the
BMW Settlement Adjustment, the parties shall attempt to agree upon the amount
of the BMW Settlement Adjustment for a period of thirty (30) days. If, after
such thirty (30) day period, Purchaser and Sellers are still unable to agree on
the amount of the BMW Settlement Adjustment, Sellers shall have the right to
cause the amount of the BMW Settlement Adjustment to be determined pursuant to
binding arbitration pursuant to Section 12.7 below and Sellers shall pay to
Purchaser the BMW Settlement Adjustment within ten (10) days of Purchaser being
notified of such determination.
12.7 In the event that Sellers shall be entitled to arbitration under
this Article with respect to the BMW Settlement Adjustment, the BMW Settlement
Adjustment shall be determined by a single arbitrator appointed in accordance
with the American Arbitration Association rules and procedures. Such arbitrator
shall be impartial and shall have not less than ten (10) years' experience in
the County of New York in a calling related to the management of commercial
real estate and/or the appraisal of commercial property, including significant
experience in managing and/or appraising class "A" office buildings and the
fees of such arbitrator shall be shared equally by Sellers and Purchaser.
Within twenty (20) days following the appointment of such arbitrator each party
shall attend a hearing before such arbitrator wherein each party shall submit a
written report setting forth its determination of the BMW Settlement Adjustment
with such information and evidence contained therein as the party submitting
such report shall deem relevant. The arbitrator shall, within thirty (30) days
following such hearing and submission of such evidence and information, render
a decision by either selecting the BMW Settlement Adjustment submitted by
either party or determining a different value that the arbitrator believes more
accurately reflects the BMW Settlement Adjustment and the decision of such
arbitrator shall be final and binding upon the parties hereto.
12.8 The provisions of this Article 12 shall survive the Closing.
13. Ford Note.
13.1 Subject to the provisions of the Greenwich Consent, at the
Closing, Sellers shall cause the Company to assign its right, title and
interest in the Ford Note to Sellers, and shall cause Associates LLC to assign
its right to receive its pro rata share of all payments of interest and
principal under the Ford Note to Sellers. At the Closing, subject to the
provisions of the Greenwich Consent, Sellers and/or Purchaser shall, as
indicated below, execute and deliver the following documents:
13.1.1 A License Agreement (the "License Agreement") executed
and delivered by Sellers and Purchaser (or its designee(s)) in the form
attached hereto as Exhibit V and made a part hereof.
13.1.2 A Subordinate Assignment of Interest in Note and Rights
to Receive Distributions (the "Subordinate Assignment") executed and delivered
by Sellers and Purchaser (or its designee(s)) in the form attached hereto as
Exhibit V-1 and made a part hereof.
13.1.3 A UCC-1 Financing Statement executed and delivered by
Sellers in the form attached hereto as Exhibit V-2 and made a part hereof.
13.1.4 To the extent Greenwich Capital is obligated under the
Greenwich Loan Documents to pay to the Company and the other Co-Tenants any
monies received by it in respect of the Ford Note, a letter of direction
executed and delivered by Sellers to Greenwich Capital to pay 65% of all such
monies to Purchaser (or its designee(s)).
13.1.5 Sellers and Purchaser (or its designee(s)) shall deliver
such other documents as Purchaser or Sellers shall reasonably request to
effectuate the intent of the provisions of this Article 13 and the other
documents being executed and delivered pursuant to this Article 13.
13.2 If the Company or Associates LLC shall receive any payments of
interest and/or principal under the Ford Note prior to the Closing Date, after
the Closing, Sellers shall cause such monies to be held in trust for Purchaser
(or its designee(s)) and to be paid over to Purchaser (or its designee(s))
pursuant to the terms of the License Agreement.
13.3 If the holder of the Greenwich Loan delivers physical possession
of the Ford Note to Sellers upon payment in full of the Greenwich Loan, or
otherwise, Sellers shall deliver the same to Purchaser or as Purchaser may
direct and execute an allonge of the Ford Note in favor of Purchaser, without
representation, warranty or recourse, except as expressly provided herein.
13.4 Until such time as the Ford Note is paid in full, Sellers shall
maintain their existence. Until that date that is one (1) year after the Ford
Note is paid in full, Purchaser shall, from time to time, within ten (10)
business days of Sellers' written demand, reimburse and pay to Sellers the
actual out-of-pocket administrative expenses incurred by Sellers in maintaining
the existence of Sellers (including, without limitation, those costs incurred
by Sellers in connection with complying with all laws applicable to limited
liability companies, all accounting fees in respect of Sellers' tax returns,
franchise taxes, legal fees incurred in connection with any annual mandatory or
desirable compliance or administrative matters, such as mandatory annual
meetings and maintaining minutes in connection therewith and all similar
requirements) and all costs and expenses incurred by Sellers pursuant to and in
order to comply with their obligations under the License Agreement and/or the
Subordinate Assignment. The provisions of this Section 13.3 shall survive the
Closing.
14. Confidentiality.
Until the date on which the Greenwich Consent is obtained, Purchaser
covenants and agrees that it shall not communicate the terms or any aspect of
(a) this Agreement and the transactions contemplated hereby, (b) that certain
Letter Agreement, dated September 23, 1998, between SL Green Realty Corp. and
Blackacre Capital Management, LLC, Re: Acquisition of Ownership Interests in
555 West 57th LLC, to any person or entity and shall hold, in the strictest
confidence, the content of any and all information in respect of the Property
and the Company which is supplied by Sellers to Purchaser, without the express
written consent of Seller, in Seller's sole discretion. Prior to the date on
which the Greenwich Consent is obtained, Purchaser may, without Sellers'
consent, disclose the terms hereof and the transactions contemplated hereby (a)
to Purchaser's advisors, consultants, attorneys, accountants and lenders (the
"Purchaser Parties") without the express written consent of Sellers, provided
that any such Purchaser Parties to whom disclosure is made shall also agree to
keep all such information confidential in accordance with the terms hereof, and
(ii) if Purchaser is required to disclose same by law or by regulatory or
judicial process or pursuant to any regulations promulgated by the New York
Stock Exchange; provided that in such event Purchaser shall notify Sellers in
writing of such required disclosure, shall exercise all commercially reasonable
efforts to preserve the confidentiality of the confidential documents or
information, as the case may be, including, without limitation, reasonably
cooperating with Sellers to obtain an appropriate order or other reliable
assurance that confidential treatment will be accorded such confidential
documents or information, as the case may be, by such tribunal and shall
disclose only that portion of the confidential documents or information which
it is legally required to disclose. If this Agreement is terminated such
confidentiality shall be maintained and Purchaser and the Purchaser Parties
will destroy or deliver to Seller, upon request, all documents and other
materials, and all copies thereof, obtained by Purchaser and the Purchaser
Parties in connection with this Agreement that are subject to such confidence,
with any such destruction confirmed by Purchaser and the Purchaser Parties to
Sellers in writing. The foregoing confidentiality obligations shall not apply
to the extent that any such information is a matter of public record or is
provided in other sources readily available to the real estate industry other
than as a result of disclosure by Purchaser or the Purchaser Parties. Purchaser
hereby indemnifies Sellers against, and holds Sellers harmless from, any and
all claims, losses, damages, liabilities and expenses (including, without
limitation, attorneys' fees) arising in connection with Purchaser's obligations
under this Article 14. In the event the Greenwich Consent is not obtained,
Purchaser shall be bound by the provisions of this Article 14 even after the
termination of this Agreement. The provisions of this Article 14 shall survive
Closing.
15. Limitation on Liability of Parties.
15.1 In the event Purchaser shall default in the performance of
Purchaser's obligations under this Agreement and the Closing does not occur as
a result thereof, Sellers' sole and exclusive remedy shall be, and Sellers
shall be entitled, to retain the Downpayment and any interest earned thereon as
and for full and complete liquidated and agreed damages for Purchaser's
default, or draw down on any Downpayment Letter of Credit and/or Additional
Downpayment Letters of Credit, if applicable, and Purchaser shall be released
from any further liability to Sellers hereunder, except that the provisions of
Articles 11.2.2, 17, 18, 24 and 28 hereof shall survive.
15.2 In the event that Sellers shall default in the performance of
Sellers' obligations under this Agreement, Purchaser's sole and exclusive
remedy shall be, and Purchaser shall be entitled, to either (a) instruct the
Escrow Agent to pay to Purchaser the Downpayment with the interest earned
thereon, if any, and receive from Sellers the Title Cost upon which Sellers
shall be released from any further liability to Purchaser hereunder, except
that the provisions of Articles 11.2.2, 17, 18, 24 and 28 hereof shall survive
or (b) seek specific performance of Sellers' obligations hereunder including,
in either of which events Sellers shall in no event whatsoever be liable to
Purchaser for damages of any kind whatsoever; provided, however, if Sellers
default shall be the inability to deliver the Estoppels under Section 9.1.7,
Purchaser's shall not be entitled to specific performance of such obligation of
Sellers; and provided, further, however, that Sellers hereby agree to use
commercially reasonable efforts to obtain the Estoppels required under Sections
9.1.6 and 9.1.7.
16. Fire or Other Casualty; Condemnation.
16.1 Sellers agree (a) to cause the Company and the other Co-Tenants
to maintain the property insurance policy or policies in respect of the
Property, including fire and extended coverage and (b) to give Purchaser
reasonably prompt notice of any fire or other casualty occurring at the
Property of which Sellers obtains knowledge, between the date hereof and the
date of the Closing, or of any actual or threatened in writing condemnation of
all or any part of the Property of which Sellers obtains knowledge.
16.2 If prior to the Closing there shall occur (a) damage to the
Property caused by fire or other casualty which would cost $3,750,000.00 or
more to repair, as reasonably determined by an engineer selected by Sellers and
reasonably satisfactory to Purchaser, or (b) a taking by condemnation of any
material portion of the Property, then, and in either such event, Purchaser may
elect to terminate this Agreement by written notice given to Sellers within ten
(10) days after Sellers have given Purchaser the notice referred to in Section
16.1 hereof, or at the Closing, whichever is earlier, in which event Sellers
shall promptly instruct Escrow Agent, as applicable, to return to Purchaser the
Downpayment (together with any interest earned thereon), and shall pay to
Purchaser the Title Cost and this Agreement shall thereupon be deemed
terminated and of no further force or effect, and neither party hereto shall
thereupon have any further obligation to the other, except that the provisions
of Articles 11.2.2, 17, 18, 24 and 28 hereof shall survive such termination. If
Purchaser does not elect to terminate this Agreement, then the Closing shall
take place as herein provided, without abatement of the Purchase Price;
provided, however, that subject to the rights of Greenwich Capital under the
Greenwich Loan Documents, to the extent the Company has actually received any
such proceeds or awards prior to the Closing in the form of cash, actually
theretofore paid to the Company, such funds shall be the Property of the
Company up to the amount of the Purchase Price and shall be retained by the
Company after the Closing, less any amounts (i) actually and reasonably
expended or incurred by the Company in adjusting any insurance claim or
negotiating and/or obtaining any condemnation award (including, without
limitation, reasonable attorneys fees and expenses) and/or (ii) theretofore
actually and reasonably incurred or expended by or for the account of the
Company for the cost of any protective restoration or emergency repairs made by
or on behalf of the Company (to the extent the Company has not theretofore been
reimbursed by its insurance carriers for such expenditures), and Sellers shall
pay to Purchaser, or allow as a credit against the Purchase Price, an amount
equal to (y) if the Company's insurance policy insures only the Company's
interest in the Property, then the amount of the deductible under such policy,
if any, or (z) if the insurance policy is held jointly by the Co-Tenants, then
an amount equal to 65% of the deductible under such policy and, in addition,
subject to the rights of Greenwich Capital under the Greenwich Loan Documents,
the Company shall cause Associates LLC to pay to Purchaser any net amounts
received by Associates LLC attributable to any such casualty or condemnation in
connection with Associates' ownership interests in Nominee LLC and 57th
Associates.
16.3 If, prior to the Closing, there shall occur (a) damage to the
Property caused by fire or other casualty which would cost less than
$3,750,000.00 to repair, as reasonably determined by an engineer selected by
Sellers and reasonably satisfactory to Purchaser, or (b) a taking by
condemnation of any part of the Property which is not material, then, and in
either such event, neither party shall have the right to terminate its
obligations under this Agreement by reason thereof, but Sellers shall, subject
to the rights of Greenwich Capital under the Greenwich Loan Documents, cause
the Company to assign to Purchaser at the Closing all of the Company's interest
in any insurance proceeds or condemnation awards which may be payable to the
Company on account of any such fire, casualty or condemnation, or shall deliver
to Purchaser any such proceeds or awards actually theretofore paid, up to the
amount of the Purchase Price, in each case less any amounts (i) actually and
reasonably expended or incurred by the Company in adjusting any insurance claim
or negotiating and/or obtaining any condemnation award (including, without
limitation, reasonable attorneys fees and expenses) and/or (ii) theretofore
actually and reasonably incurred or expended by or for the account of the
Company for the cost of any protective restoration or emergency repairs made by
or on behalf of the Company (to the extent the Company has not theretofore been
reimbursed by its insurance carriers for such expenditures), and Sellers shall
pay to Purchaser, or allow as a credit against the Purchase Price, an amount
equal to (y) if the Company's insurance policy insures only the Company's
interest in the Property, then the amount of the deductible under such policy,
if any, or (z) if the insurance policy is held jointly by the Co-Tenants, then
an amount equal to 64% of the deductible under such policy and, in addition,
subject to the rights of Greenwich Capital under the Greenwich Loan Documents,
the Company shall cause Associates LLC to pay to Purchaser any net amounts
received by Associates LLC attributable to any such casualty or condemnation in
connection with Associates' ownership interests in Nominee LLC and 57th
Associates.
16.4 For purposes of this Article 16, a taking of a material part of
the Property shall mean any taking that either (a) diminishes the value of the
Property by an amount in excess of $3,750,000.00, or (b) which leaves remaining
a balance of such the Property which may not be economically operated (after
appropriate restoration) for the purpose for which the Property was operated or
intended to be operated prior to such taking.
16.5 In the event Purchaser does not elect to terminate the Agreement
in accordance with Section 16.2 above, or upon the occurrence of the events set
forth in Section 16.3 (a) or (b) above, Purchaser shall have the exclusive
right to negotiate, compromise or contest the obtaining of any insurance
proceeds and/or any condemnation awards.
17. Brokerage.
Purchaser and Sellers each represent and warrant to the other that it
has not dealt with any broker, consultant, finder or like agent who might be
entitled to a commission or compensation on account of introducing the parties
hereto, the negotiation or execution of this Agreement or the closing of the
transactions contemplated hereby except Capital Trust, and Sellers shall be
responsible for any fees or commission due Capital Trust pursuant to a separate
agreement between Sellers and Capital Trust. Sellers agree to indemnify and
hold Purchaser and its respective successors and assigns harmless from and
against all claims, losses, liabilities and expenses (including, without
limitation, reasonable attorneys fees and disbursements) which may be asserted
against, imposed upon or incurred by Purchaser by reason of any claim made by
any broker, consultant, finder or like agent (including Capital Trust) for
commissions or other compensation for bringing about this transaction or
claiming to have introduced Purchaser to the Sellers or the Property. Purchaser
agrees to indemnify and hold Sellers and their respective successors and
assigns harmless from and against all claims, losses, liabilities and expenses
(including, without limitation, reasonable attorneys fees and disbursements)
which may be asserted against, imposed upon or incurred by either or both
Sellers by reason of any claim made by any broker, consultant, finder or like
agent (other than Capital Trust) for commissions or other compensation for
bringing about this transaction or claiming to have introduced the Sellers or
the Property to Purchaser. The provisions of this Article 17 shall survive the
Closing or other termination of this Agreement.
18. Closings Costs; Fees and Disbursements of Counsel, etc..
At the Closing, Sellers shall pay the New York State Real Estate
Transfer Tax imposed pursuant to Article 31 and Section 1402 of the New York
Tax Law (the "State Transfer Tax") and the New York City Real Property Transfer
Tax imposed pursuant to Title 11, Chapter 21, of the New York City
Administrative Code ("City Transfer Tax"), upon or payable in connection with
the transfer of the Membership Interests, which taxes and charges shall, at
Sellers' election by notice given to Purchaser at least three (3) days prior to
the Closing Date, be allowed for out of the Purchase Price and paid by
Purchaser on behalf of Sellers. Sellers and Purchaser shall each execute and/or
swear to the returns or statements required in connection with the aforesaid
taxes. All such tax payments shall be made payable directly to the order of the
appropriate governmental officer or the Title Company. Each of the parties
hereto shall bear and pay the fees 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
18 shall survive the Closing.
19. Notices.
Except as otherwise provided in this Agreement, all notices, demands,
requests, consents, approvals or other communications (for the purposes of this
Article collectively referred to as "Notices") required or permitted to be
given hereunder or which are given with respect to this Agreement, in order to
constitute effective notice to the other party, shall be in writing and shall
be deemed to have been given when (a) personally delivered with signed delivery
receipt obtained, (b) when transmitted by facsimile machine, if followed by
giving of, pursuant to one of the other means set forth in this Article 19
before the end of the first business day thereafter, printed confirmation of
successful transmission to the appropriate facsimile number of the address
listed below as obtained by the sender from the sender's facsimile machine, (c)
upon receipt, when sent by prepaid reputable overnight courier or (d) three (3)
days after the date so mailed if sent postage prepaid by registered or
certified mail, return receipt requested, in each case addressed as follows:
If to Sellers, to:
Blackacre Capital Management, LLC
450 Park Avenue
New York, New York 10022
Attention: Jeffrey B. Citrin
Facsimile: (212) 758-5305
with a copy to:
Craig H. Solomon, Esq.
Solomon and Weinberg LLP
70 East 55th Street
New York, New York 10022
Facsimile: (212) 605-0999
If to Purchaser, to:
SL Green Realty Corp.
70 East 36th Street
New York, New York 10018-8007
Attention: Benjamin Feldman, Esq.
Facsimile: (212) 594-0086
with a copy to:
Greenberg, Traurig
200 Park Avenue
New York, New York 10166
Attention: Robert Ivanhoe, Esq.
Facsimile: (212) 801-6400
If to Escrow Agent, to:
Craig H. Solomon, Esq.
Solomon and Weinberg LLP
70 East 55th Street
New York, New York 10022
Facsimile: (212) 605-0999
Notices shall be valid only if served in the manner provided above.
20. Survival; Governing Law.
Except as otherwise expressly set forth in this Agreement, the
provisions of this Agreement shall not survive the Closing provided for herein.
This Agreement shall be governed by, interpreted under, and construed and
enforced in accordance with, the laws of the State of New York.
21. Counterparts; Captions.
This Agreement may be executed in counterparts, each of which shall
be deemed an original. The captions are for convenience of reference only and
shall not affect the construction to be given any of the provisions hereof.
22. Entire Agreement; No Third Party Beneficiaries.
This Agreement (including all exhibits annexed hereto), contains the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior understandings, if any, with respect thereto. 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. The
provisions of this Article shall survive the Closing.
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 obligations or acts shall be deemed an extension
of the time for performance of any other obligations or acts.
24. No Recording.
The parties hereto agree that neither this Agreement nor any
memorandum or notice hereof shall be recorded.
25. Assignments.
Purchaser shall neither assign its rights nor delegate its
obligations hereunder without obtaining Sellers' prior written consent, which
may be withheld in Sellers' sole discretion. Notwithstanding the foregoing,
Purchaser shall have the right to assign its rights hereunder to one or more
Affiliates of Purchaser without the consent of Sellers, provided that written
notice of such assignment is given to Sellers and each such assignee remains an
Affiliate of Purchaser through the Closing Date and provided that any such
permitted assignment shall not relieve Purchaser of its duties and obligations
hereunder. Any other purported or attempted assignment or delegation without
obtaining Sellers' prior written consent shall be void and of no effect. For
purposes of this Article 25 or as elsewhere used in this Agreement, the term
"Affiliate" means any entity which directly or indirectly through one or more
intermediaries controls, is controlled by or is under common control with
Purchaser. For purposes of this definition, the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of the entity in question, whether
through the ownership of voting stock, by contract or otherwise. No consent
given by Sellers to any transfer or assignment of Purchaser's rights or
obligations hereunder shall be construed as a consent to any other transfer or
assignment of Purchaser's rights or obligations hereunder. No transfer or
assignment in violation of the provisions hereof shall be valid or enforceable.
26. Pronouns; Joint and Several Liability.
All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine or neuter, singular or plural, as the identity of the
parties may require. If Purchaser consists of two or more parties, the
liability of such parties shall be joint and several.
27. Successors and Assigns.
This Agreement shall bind and inure to the benefit of Seller,
Purchaser and their respective permitted successors and assigns.
28. Escrow.
28.1 Escrow Agent shall hold the Downpayment (which, for the purpose
of this Article 28, shall be deemed to mean and include all Additional Cash
Downpayments actually received by Escrow Agent), together with all interest
earned thereon, in its interest bearing escrow account and shall hold the
Downpayment Letter of Credit (which, for purposes of this Article 28, shall be
deemed to mean and include all Additional Downpayment Letters of Credit
actually received by Escrow Agent), in accordance with the following:
28.1.1 Escrow Agent shall hold the Downpayment, together with
all interest earned thereon, in Escrow Agent's escrow account at Citibank,
N.A., and shall cause the Downpayment to earn interest at Citibank, N.A.'s then
prevailing insured money market rates on deposits of similar size. Escrow Agent
shall have no liability for any fluctuations in the interest rate paid by
Citibank, N.A. on the Downpayment, and is not a guarantor thereof.
28.1.2 If Escrow Agent receives a written notice signed by both
Sellers and Purchaser stating that the Closing has occurred and that Sellers
are entitled to receive the Downpayment (or that Purchaser is entitled to
return of the Downpayment Letter of Credit, as applicable, Escrow Agent shall
deliver the Downpayment, together with the interest earned thereon, to Sellers
or deliver the Downpayment Letter of Credit to Purchaser, as applicable. If
Escrow Agent receives a written notice signed by both Sellers and Purchaser
that this Agreement has been terminated or canceled, Escrow Agent shall deliver
the Downpayment, together with the interest thereon, or the Downpayment Letter
of Credit, as applicable, as directed therein.
28.1.3 If Escrow Agent receives a written request signed by
Purchaser or Sellers (the "Noticing Party") stating that this Agreement has
been canceled or terminated and that the Noticing Party is entitled to the
Downpayment or the Downpayment Letter of Credit, as applicable,, or that the
other party hereto (the "Non-Noticing Party") has defaulted in the performance
of its obligations hereunder, Escrow Agent shall mail (by certified mail,
return receipt requested) a copy of such request to the Non-Noticing Party. The
Non-Noticing Party shall have the right to object to such request for the
Downpayment or the Downpayment Letter of Credit, as applicable, by written
notice of objection delivered to and received by Escrow Agent ten (10) days
(excluding Saturdays, Sundays and State of New York and Federal holidays) after
the date of Escrow Agent's mailing of such copy to the Non-Noticing Party, but
not thereafter. If Escrow Agent shall not have so received a written notice of
objection from the Non-Noticing Party, Escrow Agent shall deliver the
Downpayment, together with the interest earned thereon or the Downpayment
Letter of Credit, as applicable, to the Noticing Party. If Escrow Agent shall
have received a written notice of objection within the time herein prescribed,
Escrow Agent shall refuse to comply with any requests or demands on it and
shall continue to hold the Downpayment, together with any interest earned
thereon or the Downpayment Letter of Credit, as applicable, until Escrow Agent
receives either (a) a written notice signed by both Sellers and Purchaser
stating who is entitled to the Downpayment (and interest) or the Downpayment
Letter of Credit, as applicable, or (b) a final order of a court of competent
jurisdiction directing disbursement (or delivery) of the Downpayment (and
interest) or the Downpayment Letter of Credit, as applicable, in a specific
manner, in either of which events Escrow Agent shall then disburse (or deliver)
the Downpayment, together with the interest earned thereon or the Downpayment
Letter of Credit, as applicable, in accordance with such notice or order.
Escrow Agent shall not be or become liable in any way or to any person for its
refusal to comply with any such requests or demands until and unless it has
received a direction of the nature described in clause (a) or (b) above.
28.2 Any notice to Escrow Agent shall be sufficient only if received
by Escrow Agent within the applicable time period set forth herein. All
mailings and notices from Escrow Agent to Sellers and/or Purchaser, or from
Sellers and/or Purchaser to Escrow Agent, provided for in this Article 28 shall
be addressed to the party to receive such notice at its notice address set
forth in Article 19 above (with copies to be similarly sent to the additional
persons therein indicated), but the provisions of Article 19 relating to the
manner of giving notices and the effective dates thereof shall have no
application to the provisions of this Article 28.
28.3 Notwithstanding the foregoing, if Escrow Agent shall have
received a written notice of objection as provided for in Section 28.1.3 above
within the time therein prescribed, or shall have received at any time before
actual disbursement (or delivery) of the Downpayment or the Downpayment Letter
of Credit, as applicable, a written notice signed by either Sellers or
Purchaser disputing entitlement to the Downpayment or the Downpayment Letter of
Credit, as applicable, or shall otherwise believe in good faith at any time
that a disagreement or dispute has arisen between the parties hereto over
entitlement to the Downpayment or the Downpayment Letter of Credit, as
applicable (whether or not litigation has been instituted), Escrow Agent shall
have the right, upon written notice to both Sellers and Purchaser, (a) to
deposit the Downpayment, together with the interest earned thereon, or the
Downpayment Letter of Credit, as applicable, with the Clerk of the Court in
which any litigation is pending and/or (b) to take such reasonable affirmative
steps as it may, at its option, elect in order to terminate its duties as
Escrow Agent, including, without limitation, the depositing of the Downpayment,
together with the interest earned thereon, or the Downpayment Letter of Credit,
as applicable, with a court of competent jurisdiction and the commencement of
an action for interpleader, the costs thereof to be borne by whichever of
Sellers or Purchaser is the losing party, and thereupon Escrow Agent shall be
released of and from all liability hereunder except for any previous gross
negligence or willful misconduct.
28.4 Escrow Agent is acting hereunder without charge as an
accommodation to Purchaser and Sellers, it being understood and agreed that
Escrow Agent shall not be liable for any error in judgment or any act done or
omitted by it in good faith or pursuant to court order, or for any mistake of
fact or law. Escrow Agent shall not incur any liability in acting upon any
document or instrument believed thereby to be genuine. Escrow Agent is hereby
released and exculpated from all liability hereunder, except only for willful
misconduct or gross negligence. Escrow Agent may assume that any person
purporting to give it any notice on behalf of any party has been authorized to
do so. Escrow Agent shall not be liable for, and Purchaser and Sellers hereby
jointly and severally agree to indemnify Escrow Agent against, any loss,
liability or expense, including reasonable attorney's fees (either paid to
retained attorneys or, representing the fair value of legal services rendered
by Escrow Agent to itself), arising out of any dispute under this Agreement,
including the cost and expense of defending itself against any claim arising
hereunder. Notwithstanding anything to the contrary herein contained, Purchaser
agrees that Solomon and Weinberg LLP may represent Sellers as Sellers' counsel
in any action, suit or other proceeding between Sellers and Purchaser or in
which Sellers and Purchaser may be involved.
29. Tax Proceedings.
29.1 Purchaser hereby acknowledges and agrees that the Company and
the other Co-Tenants shall continue, from and after the date hereof until the
Closing, the proceeding or proceedings now pending for the reduction of the
assessed valuation of the Property described on Exhibit N, and Purchaser agrees
that Sellers may, until the Closing in their reasonable discretion at the
Co-Tenants' sole cost and expense, cause the Company to litigate or settle same
with Purchaser's consent as to the current tax year, if applicable, not to be
unreasonably withheld; provided, however, that Purchaser shall be entitled to
65% of that portion of any refund relating to the period occurring after the
Closing after payment to the Company of all costs and expenses, including,
without limitation, reasonable attorneys fees and disbursements, incurred by
the Company in obtaining such refund. Purchaser shall after the Closing in
connection with any settlement of taxes for the current tax year deliver to
Sellers, reasonably promptly after request therefor, receipted tax bills and
canceled checks used in payment of such taxes and shall execute any and all
consents or other documents, and do any act or thing necessary for the
collection of such refund by the Company. Any refunds or credits (i.e., any
credits for future taxes received by the Company and other Co-Tenants in lieu
of a refund arising out of a settlement or proceeding in connection with taxes
that relate to periods prior to the Closing Date) to which the Company may be
entitled prior to the Closing Date in respect of its direct tenancy-in-common
ownership interest in the Property, as well as any refund or credits
attributable to Associates LP's indirect ownership interest in the Property,
for any periods prior to the Closing Date (less 65% of all costs and expenses
incurred by the Tenancy-in-Common in respect of obtaining such refunds or
credits) shall remain the sole property of Sellers. From and after the Closing
Date, (a) Purchaser shall cause the Company to litigate and settle any
proceedings that are pending at the time of Closing that relate only to any
period or periods prior to the Closing in the manner directed by Sellers and
subject to Sellers consent, and (b) Purchaser shall cause the Company to
litigate and settle any proceedings that are pending at the time of Closing
that relate to periods that are both prior to and on and after the Closing Date
as well as prior to the Closing Date in a commercially reasonable manner and
any settlement in connection with any such proceeding that involves periods
both before and after the Closing Date shall be subject to Sellers' approval,
such approval not to be unreasonably withheld, and Purchaser shall keep Sellers
fully apprised of and provide Sellers with copies of all correspondence and
documents relating to any such proceedings referred to in clauses (a) and (b)
above, and upon the settlement or successful litigation of any such
proceedings, Purchaser shall cause the Company to pay to Sellers 65% of any
savings in real estate taxes that result from any such settlement or proceeding
with respect to periods prior to the Closing Date, less the reasonable costs
and expenses incurred in connection therewith.
29.2 Sellers hereby advise Purchaser that the Co-Tenants intend to
enter into a settlement with The City of New York with respect to tax years
1991/1992 through and including 1997/1998 and in all events covering periods
prior to the Closing Date. Notwithstanding anything to the contrary contained
in this Article 29, both prior to and after the Closing Sellers shall be
entitled to cause the Company to accept the City of New York's proffer in
respect of such tax years or otherwise settle the same in Seller's sole
discretion, and Purchaser shall cause the Company to pay to Sellers an amount
equal to 65% of such settlement (less an amount equal to 65% of the reasonably
estimated costs and expenses incurred by the Co-Tenants in connection
therewith), promptly upon receipt by the Co-Tenants of the proceeds of such
settlement (whether by refund or credit against future taxes).
29.3 The provisions of this Article 29 shall survive the Closing.
30. Leasing.
Subject to the terms of the Greenwich Loan Documents, Sellers shall
not cause the Company to enter into any new Space Leases, or modify any
existing Space Leases, without the prior written consent of Purchaser, which
consent may be withheld in Purchaser's reasonable discretion, provided that if
any such proposed lease will contain economic and other terms that are in
conformity with the economic and other terms in comparable class "A" office
buildings, the Company may enter into such lease without Purchaser's consent,
so long as the terms of such proposed lease do not violate the leasing
parameters then in effect under the Greenwich Loan Documents. It is understood
and agreed that (a) the exercise by any Space Lessee of any option set forth in
such Space Lessee's Space Lease for the (i) extension of such Space Lease, (ii)
letting of additional space or (iii) surrender of any space demised under such
Space Lease, (b) the Company's consent to any request for the sublease under,
or assignment of, any Space Lease requiring the consent of the Company, as
landlord, where landlord's consent is required not to be unreasonably withheld
(or language having similar effect) if the Space Lessee so requesting such
consent shall remain liable under such Space Lease and such Space Lease does
not entitle the landlord thereunder to "recapture" the space demised
thereunder, shall not constitute a new Space Lease or the modification of an
existing Space Lease under this Article 30 and (c) Purchaser shall pay, if the
Closing occurs, all leasing commissions and tenant improvement costs payable in
connection with any new Space Lease which has been approved by Purchaser under
this Article 30, which leasing commissions and tenant improvements costs shall
be pro-rated taking into account the periods when each of Sellers and Purchaser
received the benefits of such new Space Lease. Without limiting the foregoing,
Sellers shall use commercially reasonably efforts to cause all landlord work
required in connection with the Space Lease with the City University of New
York to be substantially completed on or prior to December 27, 1998.
31. Indemnity for Certain Transfer Taxes.
Reference is made to that certain In-Kind Distribution Agreement,
dated as of October 31, 1997, between the Co-Tenants (the "In-Kind Distribution
Agreement"). Sellers hereby indemnify Purchaser and hold Purchaser harmless
from and against all claims, losses, liabilities and expenses (including,
without limitation, reasonable attorneys fees and disbursements) which may be
asserted against, imposed upon or incurred by Purchaser in respect of any State
Transfer Tax and City Transfer Tax in connection with the property distributed
pursuant to the In-Kind Distribution Agreement. The provisions of this Article
31 shall survive the Closing.
32. Further Assurances.
The parties each agree to do such other and further acts and things,
and to execute and deliver such instruments and documents (not creating any
obligations additional to those otherwise imposed by this Agreement) as either
may reasonably request from time to time, whether at or after the Closing, in
furtherance of the purposes of this Agreement.
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
SELLERS:
BLACKACRE 555 WEST 57TH
STREET MM LLC
a Delaware limited liability company
By: Blackacre Capital Group, L.P.,
a Delaware limited partnership
Managing Member
By: Blackacre Capital Management Corp.
a Connecticut corporation,
General Partner
By: _______________________
Name: Jeffrey B. Citrin
Title: President
BLACKACRE 555 WEST 57TH
STREET LLC
By: Blackacre Capital Group, L.P.,
a Delaware limited partnership,
Managing Member
By: Blackacre Capital Management Corp.,
a Connecticut corporation,
General Partner
PURCHASER:
SL GREEN OPERATING PARTNERSHIP, L.P.
By: SL Green Realty Corp.,
a Maryland corporation,
General Partner
By: ___________________________
Name:
Title:
ESCROW AGENT:
SOLELY FOR THE PURPOSES OF
CONFIRMING THE PROVISIONS OF
ARTICLE 28:
SOLOMON AND WEINBERG LLP
By: ______________________________
Craig H. Solomon, a Partner
SOLELY FOR THE PURPOSE OF
CONFIRMING THE GUARANTEE
SET FORTH IN SECTION 12.3.1:
BLACKACRE CAPITAL PARTNERS, L.P.,
a Delaware limited partnership
Managing Member
By: Old Stand Real Estate, LLC,
a Delaware limited liability company,
General partner
By: ___________________________
Name: Jeffrey B. Citrin
Title: President
EXHIBIT A
Legal Description of the Property
EXHIBIT B
Escrow Agent Wire Instructions
Institution: Citibank, N.A.
111 Wall Street
New York, New York 10043
Citibank, N.A. Contact: Len Stein (201) 487-6800
ABA No.: 021-000-089
For Credit to: Solomon and Weinberg LLP Attorney Trust Account
Account No. 4326-3812
EXHIBIT B-1
Form of Bank of Boston Letter of Credit
CLEAN STANDBY CREDIT
DATE _________________
MAIL _________________
All drafts drawn must be marked: ___________
Opener's Reference No.: ____________________
[Addressed to Sellers]
Gentlemen:
By the order of SL Green Operating Partnership, L.P., as escrow agent
we hereby open in your favor our Irrevocable Credit for the account of
_________________ __________________ for a sum or sums not exceeding a total of
US $_________________ (_____________________________________ US DOLLARS)
available by your draft(s) at SIGHT on BankBoston, N.A., Boston, Massachusetts
effective ___________ ___________________ and expiring at Boston, Massachusetts
on _____________________.
Drafts must be accompanied by:
Your signed statement certifying: "The amount of our draft represents funds due
us under a certain Sale-Purchase Agreement, dated October __, 1998, between
ourselves and SL Green Operating Partnership, L.P., demand for payment and/or
compliance with the obligations under such Sale-Purchase Agreement has been
made, as appropriate, and the required payment has not been received by us from
SL Green Operating Partnership, L.P. or from any other source and/or the
required compliance with the obligations under such Sale-Purchase Agreement has
not been performed as required under said agreement by SL Green Operating
Partnership, L.P. or by any other source."
Each draft must bear on its face the clause "Drawn under Letter of Credit No.
___________ dated _________________, of BankBoston, N.A., Boston,
Massachusetts."
Except so far as otherwise expressly stated herein, this letter of credit is
subject to the "Uniform Customs and Practice for Documentary Credits (1983
Revision), International Chamber of Commerce Publication 400."
We hereby agree with you that drafts drawn under and in compliance with the
terms of this letter of credit will be duly honored if presented to the above
mentioned drawee Bank on or before (expiration date)
- --------------------- .
Kindly address all correspondence regarding this letter of credit to the
attention of our Letter of Credit Operations, P.O. Box 1763, BOSTON,
MASSACHUSETTS 02105, attention __________________, mentioning our reference
number as it appears above. Telephone inquiries can be made to
_______________________________.
Very truly yours,
----------------------------
Authorized Signature
EXHIBIT B-2
Ford Note
EXHIBIT C
Operating Agreement of Nominee LLC
EXHIBIT D
Operating Agreement of Associates LLC
EXHIBIT E
TIC Agreement
EXHIBIT F
Property Management and Leasing Agreement
EXHIBIT G
Space Leases
EXHIBIT H
Rent Roll
EXHIBIT I
Tenant Improvement Allowances
EXHIBIT J
Payable Commissions
EXHIBIT J-1
Material Litigation
EXHIBIT K
Employees
EXHIBIT L
Mobil Indemnity
EXHIBIT M
Ford Indemnity
EXHIBIT N
Tax Certiorari Proceedings
EXHIBIT O
Service Contracts and Utility Deposits
EXHIBIT P
5th and 6th Floor Conversion
EXHIBIT Q
Permitted Title Matters of Record
EXHIBIT R
Form of Assignment and Assumption of Membership Interest
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST (the "Assignment"),
dated as of _____________, 1998, between [BLACKACRE 555 WEST 57TH STREET MM
LLC]/[BLACKACRE 555 WEST 57TH STREET LLC], a Delaware limited liability
company, having an office c/o Blackacre Capital Group, L.P., 450 Park Avenue,
New York, New York 10022 ("Assignor"), and SL GREEN OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership, having an office at 70 West 36th Street,
New York, New York 10018-8007 ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor is a member of 555 West 57th LLC, a Delaware
limited liability company (the "Company") formed pursuant to that certain (a)
Certificate of Formation of 555 West 57th LLC, dated August 19, 1997, and filed
in the Office of the Secretary of State of the State of Delaware on August 20,
1997, and (b) Amended and Restated Limited Liability Company Agreement of 555
West 57th LLC, dated as of October 30, 1997 (the "Operating Agreement"); and
WHEREAS, Assignor currently owns a ____ % membership interest in, and
is [the managing member] [a non-managing member] of, the Company (the
"Interest"); and
WHEREAS, Assignor wishes to assign the Interest to Assignee, and
Assignee desires to accept the assignment of the Interest; and
WHEREAS, the Company and the other members of the Company have agreed
to consent to the assignment of the Interest to Assignee.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
Assignee and Assignor, the parties hereto hereby agree as follows:
1. Assignor hereby assigns, sells, transfers and conveys to Assignee
its entire Interest, including, without limitation, all of Assignor's right,
title and interest in and to all profits, losses, distributions and capital of
the Company and all of Assignor's rights to be and act as a [managing]
[non-managing] member of the Company, and any and all other rights of Assignor
under the Operating Agreement or otherwise as a member of the Company in
connection with the assets of the Company.
2. Assignor hereby withdraws from the Company as a member of the
Company. From and after the date hereof, Assignor shall have no further right,
title or interest in the Company or any of the assets thereof and shall have no
further rights, liabilities or obligations under the Operating Agreement or
otherwise in connection with the Company or the assets thereof. Assignor hereby
expresses its intention that Assignee shall become a substitute member in its
place.
3. Assignee hereby accepts the assignment hereunder and hereby agrees
to be bound by each and every provision of the Operating Agreement in respect
of the Interest from and after the date hereof and assumes all obligations
under the Operating Agreement in respect of the Interest accruing from and
after the date hereof.
4. By their execution and delivery of this Assignment where indicated
below, the managing member of the Company hereby consents to the assignment of
the Interest, the withdrawal of Assignor as a member of the Company and the
admission of Assignee as a member of the Company.
5. Each party hereby agrees to execute such further documents as may
be required or desirable by the other party in order to effectuate or evidence
the assignment set forth herein, the withdrawal of Assignor from the Company
and the admission of Assignee as a member of the Company, including, without
limitation, an amendment to the Operating Agreement.
6. This Assignment may be executed in several counterparts, each of
which shall for all purposes constitute but one agreement, binding on each
party hereto.
7. This Assignment shall be construed and enforced in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have executed this Assignment as
of the day and year first above written.
ASSIGNOR:
[BLACKACRE 555 WEST 57TH
STREET MM LLC]/
[BLACKACRE 555 WEST 57TH
STREET LLC]
By: Blackacre Capital Group, L.P.,
Its Managing Member
By: __________________________________
a _______________________________
General Partner
ASSIGNEE:
[SL GREEN OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership]
By: __________________________,
a ________________________,
General Partner
By: ________________________
Name:
Title:
AGREED AND CONSENTED TO
THIS ____ DAY OF ________, 199__
BLACKACRE 555 WEST 57TH
STREET MM LLC, Managing Member
By: Blackacre Capital Group, L.P.,
Its Managing Member
By: ____________________________
a _______________________
General Partner
EXHIBIT S
Form of Tenant Estoppel Letter
Date: _________, 1998
Re: Lease, dated __________ , 19__, by and between _______________
______________________ ("Landlord") and _____________________
("Tenant") [as modified]* (the "Lease"), with respect to a
portion of the premises commonly known as 555 West 57th Street,
New York, New York (the "Premises")
555 West 57th LLC
c/o Blackacre Capital Management, LLC
450 Park Avenue
New York, New York 10022
Ladies and Gentlemen:
Tenant understands that Blackacre 555 West 57th Street MM LLC and
Blackacre 555 West 57th Street LLC, the members of 555 West 57th LLC, a
co-owner of the Premises, intends to sell and assign their membership interests
in such co-owner (the purchaser thereof being herein referred as "Purchaser").
Tenant hereby acknowledges and agrees as follows:
1. The Lease has not been further amended, modified or extended.
2. The Lease does not contain any options to purchase and/or rights of
first refusal to purchase or any similar provisions regarding acquisition of
ownership interests in the Premises, except as follows:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
3. The term of the Lease commenced on ________________ and will
terminate on ________________________. Tenant has no right to terminate or
cancel the Lease, except as follows
- ------------------------------------------------------------------------------
- --------------------------------------------------------------------------.
- -----------------------
*List all modifications
4. The current monthly [Rent] payment under the Lease is
$______________ and the current monthly [Additional Rent] payment under the
Lease is $_______________ (as each of such capitalized terms is defined in the
Lease). Rent has been paid through _____________, l99__ and Additional Rent has
been paid through _________, 199__. No advance Rent or Additional Rent has been
prepaid except for the current month.
5. The improvements described in the Lease required to be performed by
Landlord have been completed and accepted by Tenant.
6. There has not been granted under the Lease any unexpired free
rental, concession or abatement, except as follows:
7. Tenant has not sublet any portion of the leased premises or
assigned any of its rights under the Lease, except as follows:
- ----------------------------------------------------------------------.
8. The Lease is in full force and effect. Tenant has no existing
claims, defenses or offsets under the Lease against Landlord, no uncured
default exists under the Lease, and no event has occurred which would, with the
giving of notice, the lapse of time, or both, constitute a default under the
Lease.
9. Except as set forth in Paragraph 3, no cancellation, modification,
amendment, extension or assignment of the Lease, and no subletting or
prepayment of more than one month's Rent or Additional Rent shall be made
without Landlord's prior written consent.
10. The security deposit held by Landlord under the Lease is $_____.
11. The guaranty of the Lease, if any, is in full force and effect.
12. There are no actions, voluntary or involuntary, pending against
Tenant under the bankruptcy laws of the United States or any State thereof.
13. Inquiries concerning this letter should be directed to Tenant at
the following telephone number:
---------------------.
The statements contained herein are made for the purposes of inducing
Purchaser to consummate the transactions above-described, and may be relied
upon for such purpose by
Purchaser and Greenwich Capital Mortgage Products, Inc., the current mortgagee
of the Premises, and their respective successors and assigns.
Very truly yours,
[ ]
By: _________________________________
Name:
Title:
EXHIBIT T
Form of Amendment to Operating Agreement
AMENDMENT TO
AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
OF 555 WEST 57TH LLC
THIS AMENDMENT TO AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT OF 555 WEST 57TH LLC (the "Amendment"), dated as of ___________,
199__, by and among BLACKACRE 555 WEST 57TH STREET MM LLC, a Delaware limited
liability company ("Blackacre MM LLC"), BLACKACRE 555 WEST 57TH STREET LLC, a
Delaware limited liability company ("Blackacre LLC"), _____________________, a
_________________ (the "Substitute Managing Member"), _____________________, a
_________________ (the "Substitute Non-Managing Member"), and MARK A. FERRUCCI,
an employee of The Corporation Trust Company, a Delaware corporation (the
"Independent Member").
Preliminary Statement
1. 555 West 57th LLC (the "Company") was formed as a Delaware limited
liability company pursuant to (a) a Certificate of Formation of the Company,
dated as of August 19, 1997, and filed with the Secretary of State of the State
of Delaware on August 20, 1997, and (b) a limited liability company agreement
of the Company, dated as of August 20, 1997 (the "Original Agreement"),
executed by the then sole member of the Company, Capital Trust, a California
business Trust ("CT").
2. CT subsequently assigned its entire interest in the Company to
Blackacre MM LLC and Blackacre LLC pursuant to an assignment agreement dated as
of October 30, 1997.
3. Blackacre MM LLC, Blackacre LLC and the Independent Member entered
into that certain Amended and Restated Limited Liability Company Agreement of
the Company, dated October 30, 1997 (the "Operating Agreement"), which amended
and restated the Original Agreement in its entirety.
4. Blackacre MM LLC desires to assign its entire interest in the
Company (the "Managing Member Interest") to the Substitute Managing Member, and
Blackacre LLC desires to assign its entire interest in the Company (the
"Non-Managing Member Interest") to the Substitute Non-Managing Member, and the
Managing Member (as such term is defined in the Operating Agreement) has
consented to such assignments in accordance with the terms of the Operating
Agreement.
5. The Substitute Managing Member desires to acquire the Managing
Member Interest and to be admitted as the managing member of the Company and
has agreed to be bound by all of the terms and conditions of the Operating
Agreement.
6. The Substitute Non-Managing Member desires to acquire the
Non-Managing Member Interest and to be admitted as a member of the Company and
has agreed to be bound by all of the terms and conditions of the Operating
Agreement.
7. The parties hereto desire to amend the Operating Agreement to
reflect the withdrawal of Blackacre MM LLC and Blackacre LLC as members of the
Company and the admission of the Substitute Managing Member and Substitute
Non-Managing Member as members of the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby amend the Operating Agreement as follows:
1. Each of Blackacre MM LLC and Blackacre LLC hereby withdraw from
the Company as a member thereof, effective as of the date hereof.
2. The Substitute Managing Member is hereby admitted as a member of
the Company as of the date hereof in the place of Blackacre MM LLC and the
Substitute Managing Member hereby agrees to be bound by all the terms and
conditions of the Operating Agreement from and after the date hereof. All
references to the "Managing Member" in the Operating Agreement shall hereafter
refer to the Substitute Managing Member and the definition of "Managing Member"
contained in Section 1.1 of the Operating Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
""Managing Member" means ___________________________,
a _________________, or if such entity resigns or
withdraws as a Member or is dissolved or liquidated,
then the Independent Member shall be the Managing
Member."
3. The Substitute Non-Managing Member is hereby admitted as a member
of the Company as of the date hereof in the place of Blackacre LLC and the
Substitute Non-Managing Member hereby agrees to be bound by all the terms and
conditions of the Operating Agreement from and after the date hereof. All
references to the "Non-Managing Member" in the Operating Agreement shall
hereafter refer to the Substitute Non-Managing Member and the definition of
"Non-Managing Member" contained in Section 1.1 of the Operating Agreement is
hereby deleted in its entirety and the following is substituted in lieu
thereof:
""Non-Managing Member" means ______________________,
a _________________."
4. The address for notices to the Company (including, without
limitation, the address for copies of notices) contained in Section 11.1 of the
Operating Agreement is hereby deleted in its entirety and the following address
is substituted in lieu thereof:
"---------------------------
---------------------------
with a copy to:
----------------------------
----------------------------
----------------------------"
5. Schedule I attached to the Operating Agreement is hereby deleted
in its entirety and the Schedule I attached hereto and made a part hereof is
substituted in lieu thereof.
6. In all other respects, the Operating Agreement is hereby ratified,
confirmed and approved and remains in full force and effect.
7. This Amendment may be executed in several counterparts, each of
which shall constitute but one agreement for all purposes, binding on each
party hereto.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as
of the day and year first above written.
BLACKACRE 555 WEST 57TH
STREET MM LLC
By: Blackacre Capital Group, L.P.,
Its Managing Member
By: ________________________________
a_______________________________
General Partner
BLACKACRE 555 WEST 57TH
STREET LLC
By: Blackacre Capital Group, L.P.,
Its Managing Member
By: ___________________________________
a _________________________________
General Partner
[SL GREEN OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership]
By: ____________________________________,
a ________________________,
General Partner
[SL GREEN OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership]
By: ___________________________________,
a ________________________,
General Partner
-------------------------------------
Mark A. Ferrucci
Assistant Vice President of The Corporation
Trust Company
SCHEDULE I
Capital Percentage
Name and Address of Member Contribution Interest
_________________________________ $__________ [99.00%]
_________________________________
_________________________________
_________________________________ $__________ [1.00%]
_________________________________
_________________________________
Mark A. Ferrucci, an employee of
The Corporation Trust Company $ -0- 0.00%
1209 Orange Street
Wilmington, Delaware 19801
SCHEDULE 1
Balance Sheet of the Company
SCHEDULE 2
Balance Sheet of Associates LLC
AMENDMENT TO SALE-PURCHASE AGREEMENT
THIS AMENDMENT TO SALE-PURCHASE AGREEMENT (the "AMENDMENT"), dated
as of January __, 1999, by and among BLACKACRE 555 WEST 57TH STREET MM LLC, a
Delaware limited liability company, having an office c/o Blackacre Capital
Management, LLC, 450 Park Avenue, New York, New York 10022 ("BLACKACRE MM
LLC") and BLACKACRE 555 WEST 57TH STREET LLC, a Delaware limited liability
company, having an office c/o Blackacre Capital Management, LLC, 450 Park
Avenue, New York, New York 10022 ("BLACKACRE LLC" and, together with Blackacre
MM LLC, individually, a "SELLER" and, collectively, "SELLERS"), and SL GREEN
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership, having an office
at 70 West 36th Street, New York, New York 10018-8007 ("PURCHASER").
W I T N E S S E T H:
WHEREAS, Sellers and Purchaser entered into that certain
Sale-Purchase Agreement, dated as of October 22, 1998, as amended by that
certain letter agreement, of even date therewith, among Sellers and Purchaser
(as so amended, the "AGREEMENT"); and
WHEREAS, Purchaser has identified certain costs which Purchaser may
be required to incur in connection with the facade of the building located on
the Property (as defined in the Agreement) in order to cause the Property to
comply with applicable law; and
WHEREAS, Sellers and Purchaser have agreed to reduce the Purchase
Price (as defined in the Agreement) and desire to amend the Agreement in the
respects hereinafter set forth.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
Sellers and Purchaser, and in consideration of the mutual covenants and
agreements herein set forth, the parties hereto hereby agree as follows:
1. Sections 3.1 and 3.2.2 of the Agreement is hereby amended to
delete the reference to "$37,525,000" and to insert "$35,525,000" in the place
thereof.
2. Section 8.1(a) of the Agreement is hereby amended to delete the
phrase "11:59 PM on the day preceding the date of Closing" and to insert
"11:59 PM on December 31, 1998" in the place thereof.
3. Except as amended by this Amendment, in all other respects, the
Agreement is hereby ratified, confirmed and approved and remains in full force
and effect.
4. This Amendment may be executed in several counterparts, each of
which shall constitute but one agreement for all purposes, binding on each
party hereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as
of the day and year first above written.
SELLERS:
BLACKACRE 555 WEST 57TH STREET MM
LLC,
a Delaware limited liability company
By: Blackacre Capital Group, L.P.,
a Delaware limited partnership
Managing Member
By: Blackacre Capital Management Corp.,
a Connecticut corporation,
General Partner
By:
----------------------------------
Name: Jeffrey B. Citrin
Title: President
BLACKACRE 555 WEST 57TH STREET LLC,
a Delaware limited liability company
By: Blackacre Capital Group, L.P.,
a Delaware limited partnership,
Managing Member
By: Blackacre Capital Management Corp.,
a Connecticut corporation,
General Partner
By:
----------------------------------
Name: Jeffrey B. Citrin
Title: President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
PURCHASER:
SL GREEN OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: SL Green Realty Corp.,
a Maryland corporation,
General Partner
By:
-------------------------------------
Name: Marc Holliday
Title: Chief Investment Officer
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST (the "Assignment"),
dated as of January ___, 1999, between BLACKACRE 555 WEST 57TH STREET LLC, a
Delaware limited liability company, having an office c/o Blackacre Capital
Group, L.P., 450 Park Avenue, New York, New York 10022 ("Assignor"), and GREEN
W. 57TH ST., LLC, a New York limited liability company, having an office c/o
SL Green Realty Corp., 70 West 36th Street, New York, New York 10018-8007
("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor is a member of 555 West 57th LLC, a Delaware
limited liability company (the "Company") formed pursuant to that certain (a)
Certificate of Formation of 555 West 57th LLC, dated August 19, 1997, and
filed in the Office of the Secretary of State of the State of Delaware on
August 20, 1997, and (b) Amended and Restated Limited Liability Company
Agreement of 555 West 57th LLC, dated as of October 30, 1997 (the "Operating
Agreement"); and
WHEREAS, Assignor currently owns a 99% membership interest in, and
is a non-managing member of, the Company (the "Interest"); and
WHEREAS, Assignor wishes to assign the Interest to Assignee, and
Assignee desires to accept the assignment of the Interest; and
WHEREAS, the Company and the other members of the Company have
agreed to consent to the assignment of the Interest to Assignee.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
Assignee and Assignor, the parties hereto hereby agree as follows:
1. Assignor hereby assigns, sells, transfers and conveys to Assignee
the Interest, including, without limitation, all of Assignor's right, title
and interest in and to all profits, losses, distributions and capital of the
Company and all of Assignor's rights to be and act as a non-managing member of
the Company, and any and all other rights of Assignor under the Operating
Agreement or otherwise as a member of the Company in connection with the
assets of the Company.
2. Assignor hereby withdraws from the Company as a member of the
Company. From and after the date hereof, Assignor shall have no further right,
title or interest in the Company or any of the assets thereof and shall have
no further rights, liabilities or obligations under the Operating Agreement or
otherwise in connection with the Company or the assets thereof. Assignor
hereby expresses its intention that Assignee shall become a substitute member
in its place.
3. Assignee hereby accepts the assignment hereunder and hereby
agrees to be bound by each and every provision of the Operating Agreement in
respect of the Interest from and after the date hereof and assumes all
obligations under the Operating Agreement in respect of the Interest accruing
from and after the date hereof.
4. By its execution and delivery of this Assignment where indicated
below, the managing member of the Company hereby consents to the assignment of
the Interest, the withdrawal of Assignor as a member of the Company and the
admission of Assignee as a member of the Company.
5. Each party hereby agrees to execute such further documents as may
be required or desirable by the other party in order to effectuate or evidence
the assignment set forth herein, the withdrawal of Assignor from the Company
and the admission of Assignee as a member of the Company, including, without
limitation, an amendment to the Operating Agreement.
6. This Assignment may be executed in several counterparts, each of
which shall for all purposes constitute but one agreement, binding on each
party hereto.
7. This Assignment shall be construed and enforced in accordance
with the laws of the State of New York.
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, the undersigned have executed this Assignment as
of the day and year first above written.
ASSIGNOR:
BLACKACRE 555 WEST 57TH STREET LLC,
a Delaware limited liability company
By: Blackacre Capital Group, L.P.,
a Delaware limited partnership,
Managing Member
By: Blackacre Capital Management Corp.,
a Connecticut corporation,
General Partner
By:
-------------------------------
Name: Jeffrey B. Citrin
Title: President
ASSIGNEE:
GREEN W. 57TH ST., LLC,
a New York limited liability company
By: SL Green Operating Partnership, L.P.,
a Delaware limited partnership,
Managing Member
By: SL Green Realty Corp.,
a Maryland corporation,
General Partner
By:
------------------------------
Name: Marc Holliday
Title: Chief Investment Officer
[SIGNATURES CONTINUED ON NEXT PAGE]
AGREED AND CONSENTED TO
THIS ____ DAY OF JANUARY, 1999
BLACKACRE 555 WEST 57TH
STREET MM LLC, Managing Member
By: Blackacre Capital Group, L.P.,
Managing Member
By: Blackacre Capital Management Corp.,
a Connecticut corporation,
General Partner
By:
------------------------------
Name: Jeffrey B. Citrin
Title: President
ASSIGNMENT AND ASSUMPTION
OF
SALE-PURCHASE AGREEMENT
KNOW THAT SL GREEN OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("Assignor") having an office at c/o SL Green Realty Corp., 70
West 36th Street, New York, New York 10018, in consideration of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, hereby assigns to Green w. 57th
ST., LLC, a New York limited liability company ("Assignee") having an office
at c/o SL Green Realty Corp., 70 West 36th Street, New York, New York 10018,
all of Assignor's right, title and interest in, to and under that certain
Sale-Purchase Agreement (the "Agreement") dated as of October 22, 1998,
between Assignor and Blackacre 555 West 57th Street MM LLC and Blackacre 555
West 57th Street LLC (collectively, "Sellers"), as amended, together with the
Downpayment, Additional Cash Downpayment and Additional Downpayment Letter of
Credit (as each such term is defined in the Agreement) delivered by Assignor
to Seller thereunder.
TO HAVE AND TO HOLD to Assignee and its successors and its assigns, who
shall hereafter be deemed to be substituted for Assignor, subject to the
covenants, conditions and provisions of the Agreement; provided, however, that
Assignor shall not be released hereby from its obligations under the Agreement
and shall remain bound by such obligations in accordance with the terms and
provisions of the Agreement.
AND ASSIGNEE does hereby agree to assume, be bound by, and subject to,
all of the terms, covenants and conditions of the Agreement; provided however,
that Assignor shall not be released hereby from its obligations under the
Agreement and shall remain bound by such obligations in accordance with the
terms and provisions of the Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
and Assumption of Sale-Purchase Agreement as of January __, 1999.
ASSIGNOR:
SL Green Operating Partnership, L.P.
By: SL Green Realty Corp., a Maryland
corporation, its general partner
By:
------------------------------------
Name: Marc Holliday
Title: Chief Investment Officer
ASSIGNEE:
Green W. 57th ST., LLC
By: SL Green Operating Partnership, L.P.
By: SL Green Realty Corp., a Maryland
corporation, its general partner
By:
-------------------------------
Name: Marc Holliday
Title: Chief Investment Officer