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EXHIBIT 10.35
TOWER 45
OPTION AGREEMENT
This Option Agreement (the "AGREEMENT"), dated as of the 31st day of
July, 1997, is entered into by and between TOWER REALTY OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"), and HAZAMA
T-45, a California corporation (the "GRANTOR").
R E C I T A L S:
A. The Grantor owns a limited partner interest in Tower 45 Associates
Limited Partnership, a Delaware limited partnership (the "PARTNERSHIP"), which
the Grantor acquired from Hazama USA Corporation (formerly named American
Hazama, Inc.).
B. The Operating Partnership desires to purchase for cash and through a
contribution to capital from the Grantor, and the Grantor desires to grant to
the Operating Partnership, an option to acquire, on the terms and conditions set
forth herein, all interests owned by the Grantor in the Partnership as set forth
on Schedule A attached hereto and any other direct or indirect interests the
Grantor may have, whether now owned or hereinafter acquired, in the Partnership,
or in the properties owned by the Partnership (collectively, the "INTERESTS".)
C. The Operating Partnership desires to acquire the Interests in
connection with (i) the formation of Tower Realty Trust, Inc., a Maryland
corporation (the "COMPANY"), which intends to qualify as a real estate
investment trust and which is the sole general partner and a limited partner of
the Operating Partnership, and (ii) the proposed initial public offering (the
"IPO") and concurrent private placement (collectively, "OFFERINGS") of shares of
the Company's common stock, par value $0.01 per share ("COMMON STOCK").
NOW, THEREFORE, in consideration of ten dollars ($10.00) paid by the
Operating Partnership to the Grantor, these premises, the mutual covenants and
conditions set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Operating
Partnership and Grantor agree as follows:
ARTICLE I: THE OPTION
1.1 Grant of Option. The Grantor hereby irrevocably grants to the
Operating Partnership the right and option (the "OPTION") to purchase for cash
and through a contribution to the capital of the Operating Partnership all the
Grantor's right, title and interest in the Interests, including but not limited
to, the Interest set forth on Schedule A attached hereto, on the terms and
conditions set forth herein.
1.2 Term and Exercise of Option. The Option may be exercised by the
Operating Partnership at any time from and after the date hereof through 5:00
p.m. on December 31, 1997 (the "OPTION TERMINATION DATE"); provided, that if on
the Option Termination Date the Operating Partnership or the Grantor is
prohibited by applicable law, or the Operating Partnership or the Grantor is
subject to a stay, order, injunction, or similar limitation or any pending or
threatened action or proceeding to enjoin, restrain, prohibit or assess
substantial damages in respect of the exercise by the Operating Partnership of
the Option, then the Option may be exercised by the Operating Partnership during
the 10 business day period commencing on the first business day following the
removal of each such prohibition, stay, order, injunction, action, proceeding or
similar limitation in effect at that time. Subject to the foregoing, if the
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Operating Partnership does not exercise the Option by the Option Termination
Date, such Option shall be deemed terminated and shall be of no further force or
effect and the Grantor shall have no further obligations hereunder.
1.3 Acquisition Consideration. (a) The consideration (the "ACQUISITION
CONSIDERATION") to be received by the Grantor in respect of the contribution of
the Grantor's Interests to the Operating Partnership shall be an amount equal to
$350,000; $75,000 of which shall be non-refundable and paid by the Operating
Partnership to the Grantor upon the execution and delivery of this Agreement and
$275,000 of which shall be paid on the Closing Date. The Acquisition
Consideration shall be paid in cash.
ARTICLE II: CLOSING PROCEDURES
2.1 Purchase of Interests. Upon the Operating Partnership's exercise of
the Option, the Grantor shall, in accordance with Section 2.2 hereof, transfer,
assign, and convey to the Operating Partnership and the Operating Partnership
shall accept as a contribution to its capital from the Grantor, all right, title
and interest in and to the Interests, free and clear of all Encumbrances (as
defined in Section 3.1(a)), in exchange for the Acquisition Consideration.
2.2 Closing; Conditions to Obligations. (a) (i) The Operating
Partnership shall exercise the Option by delivering to the Grantor a
notice (the "OPTION NOTICE"), which notice shall state the date (the
"CLOSING DATE") of the closing of the transactions contemplated by
Section 2.1 (the "CLOSING"), which date shall be no less than 10 days
and no more than 30 days following the date of such Option Notice.
(i) The Closing shall be held within the period
specified in the Option Notice at the offices of Battle Xxxxxx
LLP, 75 East 55th Street, New York, New York, or at the
offices of the attorneys for the lead underwriter of the IPO.
(ii) Following delivery of the Option Notice, the
Operating Partnership and the Grantor will at or prior to the
Closing execute and deliver all closing documents (the
"CLOSING DOCUMENTS") required by the Operating Partnership
pursuant to Section 2.3 and, pending the Closing, deposit such
Closing Documents in escrow with Battle Xxxxxx, LLP as escrow
agent of the Operating Partnership (the "ESCROW AGENT").
(b) The Closing will occur simultaneously with the closing of
the Offerings (the "OFFERINGS CLOSING"); provided, that the Offerings Closing
shall be deemed to have occurred only if that portion of the net proceeds from
the Offerings which is to be contributed to the Operating Partnership by the
Company is sufficient, as determined by the Operating Partnership in its
reasonable discretion, to enable the Operating Partnership (i) to acquire all
the Interests, and (ii) to apply such portion of the net proceeds to acquire
such other properties or interests, to repay principal, interest and other
amounts due with respect to indebtedness and to meet such other obligations as
may be described in the Registration Statement on Form S-11 prepared and filed
in connection with the IPO (the "REGISTRATION STATEMENT"), as the same shall be
in effect on the day of the Offerings Closing.
(c) The following deliveries shall be made at the Closing:
(i) the Operating Partnership shall cause to be
delivered to the Escrow Agent or its designee
(A) $275,000 of the Acquisition
Consideration in immediately available funds by check
or wire transfer.
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(ii) upon receipt of the consideration set forth in
clause (i) above and the documents and deliveries required by
Section 2.3, the Escrow Agent will release the Closing
Documents to the Operating Partnership and deliver to the
Grantor the Acquisition Consideration.
(d) Notwithstanding any other provision of this Agreement, the
Operating Partnership may, in its sole discretion, elect not to consummate the
contribution of all or any portion of the Interests as follows:
(i) if the Grantor either identifies in its
Assignment as defined in and delivered pursuant to Section
2.3(a) a breach of or other exception with respect to any of
the representations, warranties or covenants contained in
Article III or has otherwise breached this Agreement, or
(ii) if all authorizations, consents or approvals of
any governmental or administrative agency or authority or any
third party necessary in order to consummate the contribution
of the Interests, or there exists an order or judgment
enjoining, restraining or prohibiting, or assessing
substantial damages in respect of such consummation, or there
shall be any action or proceeding instituted or threatened in
writing to enjoin, restrain, prohibit or assess substantial
damages in respect of such consummation,
then, the Operating Partnership shall, in lieu of the delivery of the
Acquisition Consideration pursuant to clause (c)(i) above, notify the Escrow
Agent of such election and direct the Escrow Agent to return the Grantor's
Closing Documents to the Grantor.
(e) Except as the result of a default by the Grantor
hereunder, if the Closing does not occur within 30 days of the date of the
Option Notice, then neither the Operating Partnership nor the Grantor shall have
any obligations under the Closing Documents, the Closing Documents shall be
deemed null and void ab initio and the Operating Partnership will direct the
Escrow Agent to destroy the Closing Documents it holds. This Agreement shall
thereafter remain in effect and the Operating Partnership may thereafter
exercise the Option again at any time before the Option Termination Date.
2.3 Documents to Be Delivered at the Closing. At or prior to the
Closing, the Grantor shall execute, acknowledge where deemed necessary or
desirable by the Operating Partnership, and deliver to the Escrow Agent, in
addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which
shall be in the form attached hereto as Exhibit A attached hereto and shall
contain a warranty of title that the Grantor owns the Interests free and clear
of all Encumbrances (as defined in Section 3.1(a), and shall either
(i) reaffirm the accuracy of all representations and
warranties and the satisfaction of all covenants contained in
Article III hereof, or
(ii) if such reaffirmation cannot be made, identify
those representations, warranties and/or covenants contained
in Article III hereof which the Grantor can no longer make or
comply with, represent that the Grantor has used reasonable
efforts to take such actions as would permit the Grantor to
make such representations and warranties and/or to comply with
such covenants, and reaffirm the accuracy of all other
representations and warranties and the satisfaction of all
other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case
where the Grantor is a corporation, partnership, limited liability company or
trust, a certified copy of all necessary or appropriate corporate resolutions or
partnership, limited liability company or trust actions authorizing the
execution, delivery and performance by the Grantor of this Agreement and the
Closing Documents.
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(c) An affidavit establishing an exemption from the
withholding requirements of the Foreign Investment in Real Property Tax Act
("FIRPTA"), as amended, provided, however, that if the Grantor fails to provide
such an affidavit, the Operating Partnership shall be entitled to withhold from
the Acquisition Consideration and pay to the Internal Revenue Service the sums
required to be withheld pursuant to FIRPTA (and the amount so withheld
shall be paid by the Operating Partnership to the Internal Revenue Service, in
order for the Operating Partnership to comply with the provisions of Section
1445 of the Internal Revenue Code of 1986 or successor similar legislation, as
the same may be amended hereafter).
(d) Any other documents, agreements or instruments as the
Operating Partnership shall reasonably request in order to assign, transfer and
convey the Grantor's Interests to the Operating Partnership and to otherwise
effect the transactions contemplated hereby, including filings with any
applicable governmental jurisdiction in which the Operating Partnership is
required to file its partnership documentation.
2.4 Cessation of Offerings. If at any time the Board of Directors of
the Company determines in good faith to abandon the formation of the Company or
the Offerings, the Operating Partnership will so advise the Grantor in writing
and thereupon all parties hereto will be relieved of all obligations under this
Agreement and all Closing Documents (except for obligations arising under
Sections 2.5, 2.6, 3.5, 4.2 and 5.10).
2.5 Closing Costs. The Operating Partnership agrees to pay all of the
closing costs, other than the Grantor's legal fees, arising from the purchase of
the Interests pursuant to the exercise by the Operating Partnership of the
Option.
2.6 Default. (a) If after having exercised the Option, the Operating
Partnership fails to consummate the transactions contemplated hereby (including
a failure due to the Offerings Closing not having occurred), then the Operating
Partnership will pay to the Grantor the sum of $100.00 as liquidated and agreed
upon damages. The parties acknowledge that it would be difficult, if not
impossible, to ascertain the actual measure of the Grantor's damages in the
event of the Operating Partnership's default and the parties agree that $100.00
is a fair reflection of the Grantor's damages in such event.
(b) If the Grantor defaults with respect to its obligations
under this Agreement, the Operating Partnership shall be entitled to exercise
against the Grantor any and all remedies provided at law or in equity, including
but not limited to, the right of specific performance.
2.7 Further Assurances. The Grantor will, from time to time, execute
and deliver to the Operating Partnership all such other and further instruments
and documents and take or cause to be taken all such other and further action as
the Operating Partnership may reasonably request in order to effect the
transactions contemplated by this Agreement, including instruments or documents
deemed necessary or desirable by the Operating Partnership to effect and
evidence the purchase of the Grantor's Interests by the Operating Partnership in
accordance with the terms of this Agreement.
ARTICLE III:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE GRANTOR
As a material inducement to the Operating Partnership to enter into
this Agreement and to consummate the transactions contemplated hereby, the
Grantor hereby makes to the Operating Partnership each of the representations
and warranties set forth in this Article III, which representations and
warranties (unless otherwise noted) are true as of the date hereof. As a
condition to the Operating Partnership's obligation to purchase the Interests
after the exercise of the Option, such representations and warranties must be
true as of the Closing Date.
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3.1 Title to Interests. (a) Except as set forth on Schedule B attached
hereto, the Grantor owns beneficially and of record, free and clear of any
claim, lien, pledge (except for pledges relating to the debt or equity financing
of any real property owned by the Partnership (any such pledge, a "PERMITTED
PLEDGE")), voting agreement, option, charge, security interest, mortgage, deed
of trust, encumbrance, right of assignment, purchase right or other rights of
any nature whatsoever (each, an "ENCUMBRANCE"), and has full power and authority
to convey free and clear of any Encumbrances, its Interests and, upon delivery
of an Assignment by the Grantor conveying its Interests and delivery of the
Acquisition Consideration by the Operating Partnership for such Interests as
herein provided, the Operating Partnership will acquire good and valid title
thereto, free and clear of any Encumbrance, except Encumbrances created in favor
of the Operating Partnership by the transactions contemplated hereby.
(b) The Grantor has not entered into any agreements,
instruments or understandings with respect to the Interests, except as set forth
in the partnership agreement of the Partnership (the "TOWER 45 PARTNERSHIP
AGREEMENT").
(c) The Grantor has no interest, either direct or indirect, in
any of the partnerships or properties set forth on Schedule C attached hereto
(the"Other Partnerships and Properties") except for the Interests identified on
Schedule A which are the subject of this Agreement, and other interests in the
Other Partnerships and Properties which are the subject of other, similar,
option agreements with the Operating Partnership.
(d) In making the representations in this Section 3.1
regarding the absence of Encumbrances, the Grantor may assume without
independent investigation that the consents and waivers of rights set forth in
Section 5.9 hereof have been given by all partners of the Partnership, partners
in partnerships, members of limited liability companies or beneficiaries of
trusts (in each case, only in their capacity as such) in which the Grantor's
Interests represent direct or indirect interests.
3.2 Organization; Authority; No Conflicts. (a) If the Grantor is not a
natural person, it is a corporation, limited partnership, general partnership,
limited liability company or trust duly organized, validly existing and in good
standing under the laws of the state of its organization.
(b) The Grantor has full right, authority, power and capacity:
(i) to execute and deliver this Agreement, each
Closing Document and each other agreement, document and
instrument to be executed and delivered by or on behalf of the
Grantor pursuant to this Agreement;
(ii) to perform the transactions contemplated hereby
and thereby; and
(iii) to transfer, assign, convey and deliver all of
the Interests to the Operating Partnership in accordance with
this Agreement.
(c) All applicable corporate, partnership, limited liability
company, trust or other action necessary for Grantor to execute and deliver this
Agreement, the Closing Documents and each other agreement, document and
instrument executed by or on behalf of the Grantor pursuant to this Agreement,
and to perform the transactions contemplated hereby and thereby, has been taken,
or will be taken prior to the Closing Date.
(d) This Agreement, each Closing Document and each other
agreement, document and instrument executed and delivered by or on behalf of the
Grantor pursuant to this Agreement constitutes, or when executed and delivered
will constitute, the legal, valid and binding obligation of the Grantor, each
enforceable in accordance with its respective terms.
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(e) Except for any breaches, violations or defaults which will
be waived or cured, or discharged or repaid prior to or contemporaneously with
the Closing, the execution, delivery and performance of this Agreement, the
Closing Documents and each other agreement, document and instrument to be
executed and delivered by or on behalf of the Grantor:
(i) does not and will not violate the Grantor's
charter and/or bylaws, partnership agreement, operating
agreement or declaration of trust, as applicable;
(ii) does not and will not violate any foreign,
federal, state, local or other laws applicable to the Grantor
or require the Grantor to obtain any approval, consent or
waiver of, or make any filing with, any person or authority
(governmental or otherwise) that has not been obtained or made
and which does not remain in effect; and
(iii) does not and will not result in a breach or a
violation of, constitute a default under, accelerate any
obligation under or give rise to a right of termination of,
any indenture, deed of trust, mortgage, loan or credit
agreement or any other agreement, contract, instrument, lease,
permit, authorization, order, writ, judgment, injunction,
decree, determination or arbitration award to which the
Grantor is a party or by which the property of the Grantor is
bound or affected.
(f) In making the representations set forth in this Section
3.2, the Grantor may assume without independent investigation
(i) that the consents and waivers of rights set forth
in Section 5.9 hereof have been given by all partners of the
Partnership, partners in partnerships, members of limited
liability companies or beneficiaries of trusts (in each case,
only in their capacity as such) in which the Grantor's
Interests represent direct or indirect interests and
(ii) that, for purposes of making such representation
as of the date hereof, any Permitted Pledge has been released.
3.3 Litigation. (a) The Grantor knows of no litigation or proceeding,
whether judicial, administrative or arbitral, pending or overtly threatened,
affecting the Grantor, the Interests or the Grantor's ability to consummate the
transactions contemplated hereby.
(b) The Grantor knows of no outstanding order, writ,
injunction or decree of any court, government, governmental entity or authority
or arbitration against or affecting the Grantor or the Interests, which in any
such case would impair the Grantor's ability to enter into and perform all of
its obligations under this Agreement.
3.4 No Other Agreements. (a) The Grantor has made no agreement with,
and will not enter into any agreement with, and has no obligation (absolute or
contingent) to, any other person or entity to sell, transfer, dispose of or in
any way encumber any of the Interests or restricting in any way the Grantor's
ability to sell the Interests to the Operating Partnership or to enter into any
agreement with respect to the Interests.
(b) In making the representations set forth in this Section
3.4, the Grantor may assume
(i) that the consents and waivers of rights set forth
in Section 5.9 hereof have been given by all partners of the
Partnership, partners in partnerships, members of limited
liability companies or beneficiaries of trusts (in each case,
only in their capacity as such) in which the Grantor's
Interests represent direct or indirect interests and
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(ii) that, for purposes of making such
representations as of the date hereof, any Permitted Pledge
has been released.
3.5 No Brokers. The Grantor has not entered into, and covenants that it
will not enter into, any agreement, arrangement or understanding with any person
or entity which will result in the obligation of the Operating Partnership to
pay any finder's fee, brokerage commission or similar payment in connection with
the transactions contemplated hereby.
3.6 Covenant to Remedy Breaches. The Grantor covenants to use all
reasonable efforts within its control
(a) to prevent the breach of any representation or warranty of
the Grantor hereunder,
(b) to satisfy all covenants of the Grantor hereunder and
(c) to promptly clear any breach of a representation, warranty
or covenant of the Grantor hereunder upon its learning of same.
ARTICLE IV:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE OPERATING PARTNERSHIP
As a material inducement to the Grantor to enter into this Agreement
and to consummate the transactions contemplated hereby, the Operating
Partnership hereby makes to the Grantor each of the representations and
warranties set forth in this Article IV, which representations and warranties
are true as of the date hereof and shall be true as of the date of the Closing.
4.1 Authority. (a) The Operating Partnership is a limited partnership
duly organized, validly existing and in good standing under the laws of the
state of Delaware.
(b) The Operating Partnership has full right, authority, power
and capacity:
(i) to execute and deliver this Agreement, each
Closing Document to which it is a party and each other
agreement, document and instrument to be executed and
delivered by or on behalf of it pursuant to this Agreement;
and
(ii) to perform the transactions contemplated hereby
and thereby.
(c) All action necessary for the Operating Partnership to
execute and deliver this Agreement, the Closing Documents and each other
agreement, document and instrument executed by or on behalf of the Operating
Partnership pursuant to this Agreement, and to perform the transactions
contemplated hereby and thereby, has been taken, or will be taken prior to the
Closing Date.
(d) This Agreement, each Closing Document to which the
Operating Partnership is a party and each agreement, document and instrument
executed and delivered by the Operating Partnership pursuant to this Agreement
constitutes, or when executed and delivered will constitute, the legal, valid
and binding obligation of the Operating Partnership, each enforceable in
accordance with its respective terms.
(e) The execution, delivery and performance of this Agreement,
each Closing Document to which the Operating Partnership is a party and each
such agreement, document and instrument by the Operating Partnership:
(i) does not and will not violate the partnership
agreement of the Operating Partnership;
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(ii) does not and will not violate any foreign,
federal, state, local or other laws applicable to the
Operating Partnership or require the Operating Partnership to
obtain any approval, consent or waiver of, or make any filing
with, any person or authority (governmental or otherwise) that
has not been obtained or made and which does not remain in
effect; and
(iii) does not and will not result in a breach or a
violation of, constitute a default under, accelerate any
obligation under or give rise to a right of termination of,
any indenture, deed of trust, mortgage, loan or credit
agreement, any other material agreement, contract, instrument,
lease, permit or authorization, or any order, writ, judgment,
injunction, decree, determination or arbitration award to
which the Operating Partnership is a party or by which the
property of the Operating Partnership is bound or affected.
4.2 No Brokers. The Operating Partnership has not entered into, and
covenants that it will not enter into, any agreement, arrangement or
understanding with any person or entity which will result in the obligation of
the Grantor to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
4.3 Covenant to Remedy Breaches. The Operating Partnership covenants to
use all reasonable efforts within its control
(a) to prevent the breach of any representation or warranty of
the Operating Partnership hereunder,
(b) to satisfy all covenants of the Operating Partnership
hereunder and
(c) to promptly clear any breach of a representation, warranty
or covenant of the Operating Partnership hereunder upon its learning of same.
ARTICLE V: MISCELLANEOUS
5.1 Amendment and Waiver. Any amendment hereto shall be effective only
against those parties hereto who have acknowledged in writing their consent to
such amendment. This Agreement shall not be amended without notice to or the
consent of the Grantor for the purpose of adding additional Grantors as parties
hereto or deleting Grantors as parties hereto. No waiver of any provisions of
this Agreement shall be valid unless in writing and signed by the party against
whom enforcement is sought.
5.2 Entire Agreement; Counterparts; Applicable Law. This Agreement
(a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof,
(b) may be executed in several counterparts, each of which
will be deemed an original and all of which shall constitute one and the same
instrument and
(c) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of New York, without giving
effect to the conflicts of law provisions thereof.
5.3 Assignability. This Agreement shall be binding upon, and shall be
enforceable by and inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and assigns; provided,
however, that this Agreement may not be assigned (except by operation of law) by
the Operating Partnership without the prior written consent of the Grantor, or
by the Grantor without the prior written consent of the Operating Partnership,
and
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any attempted assignment without such consent shall be void and of no
effect; provided, further, however, that the Operating Partnership may assign
all or any portion of this Agreement and the Closing Documents and any agreement
contemplated hereunder or thereunder to the Company or to an affiliate of the
Operating Partnership or the Company without the consent of the Grantor.
5.4 Titles. The titles and captions of the Articles, Sections and
paragraphs of this Agreement are included for convenience of reference only and
shall have no effect on the construction or meaning of this Agreement.
5.5 Third Party Beneficiary. No provision of this Agreement is
intended, nor shall it be interpreted, to provide or create any third party
beneficiary right or any other right of any kind in any customer, affiliate,
stockholder, partner, director, officer or employee of any party hereto or any
other person or entity, provided, however, that Article V and Sections 5.3 and
5.9 of this Agreement shall be enforceable by and shall inure to the benefit of
the persons described therein.
5.6 Severability. (a) If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto.
(b) The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provision and to execute any amendment,
consent or agreement deemed necessary or desirable by the Operating Partnership
to effect such replacement.
5.7 Equitable Remedies. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any federal or state court
located in the State of New York (as to which the parties agree to submit to
jurisdiction for the purposes of such action), this being in addition to any
other remedy to which they are entitled under this Agreement or otherwise at law
or in equity.
5.8 Notices; Exercise of Option. Any notice or demand which must or may
be given under this Agreement (including the exercise by the Operating
Partnership of the Option) or by law shall, except as otherwise provided, be in
writing and shall be deemed to have been given (i) when physically received by
personal delivery (which shall include the confirmed receipt of a telecopied
facsimile transmission), (ii) three (3) business days after being deposited in
the United States certified or registered mail, return receipt requested,
postage prepaid, or (iii) one (1) business day after being deposited with a
nationally known commercial courier service utilizing its next day delivery
service (such as Federal Express); addressed and delivered or telecopied in the
case of a notice to the Operating Partnership to the following address and
telecopy number:
Tower Realty Operating Partnership, L.P.
c/o Tower Realty Trust, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Phone: (000)000-0000
Telecopy: (000)000-0000
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with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
Phone: (000)000-0000
Telecopy: (000)000-0000
and addressed and delivered or telecopied, in the case of a notice to the
Grantor, to the address and telecopy number set forth under the Grantor's name
in Schedule A hereto.
5.9 Waiver of Rights; Consents with Respect to Interests. (a) The
Grantor acknowledges that the agreements contained herein and the transactions
contemplated hereby and any actions taken in contemplation of the transactions
contemplated hereby may conflict with, and may not have been contemplated by,
the Tower 45 Partnership Agreement or any other agreement among one or more of
the partners of the Partnership.
(b) The Grantor expressly gives all Consents (as defined
below) (and any consent necessary to authorize the proper parties in interest to
give all Consents) and Waivers (as defined below) necessary or desirable to
facilitate any Conveyance Action (as defined below) relating to the Partnership.
(c) The Grantor further agrees that the Grantor will take no
action to enjoin, or seek damages resulting from, any Conveyance Action by any
holder of a direct or indirect interest in the Partnership.
(d) The Waivers and Consent contained in this Section 5.9
shall terminate upon the termination of this Agreement, except as to
transactions completed hereunder prior to termination.
(e) (i) As used herein, the term "CONVEYANCE ACTION" means,
with respect to the Partnership,
(ii) the conveyance or agreement to convey by a
partner thereof or by any holder of an indirect interest
therein of its direct or indirect interest in the Partnership
to the Operating Partnership or the Company or to another
person in connection with the formation of the Operating
Partnership or the Company as described in the Registration
Statement, or
(iii) the entering into by any such partner or holder
of any agreement relating to
(A) the formation of the Operating
Partnership or the Company as described in the
Registration Statement,
(B) the direct or indirect acquisition by
the Operating Partnership or the Company of any such
direct or indirect interest, or
(C) the transactions described in or
contemplated by the Registration Statement, or
(iv) the taking by any such partner or holder of any
action necessary or desirable to facilitate any of the
foregoing, including, without limitation, the following
(provided that the same are taken in furtherance of the
foregoing):
(A) any sale or distribution to any person
of a direct or indirect interest in the Partnership
or an undivided tenant-in-common interest in the
property represented by such interest in the
Partnership,
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(B) the entering into of any agreement with
any person or entity that grants to such person or
entity the right to purchase a direct or indirect
interest in the Partnership, and
(C) the giving of the Consents and Waivers
contained in this Section 5.9 or consents or waivers
similar thereto in form or purpose.
(v) As used herein, the term "CONSENTS" means, with
respect to the Partnership, any consent deemed by the
Operating Partnership to be necessary or desirable under the
Tower 45 Partnership Agreement or any other agreement among
all or any of the holders of interests therein or any other
agreement relating thereto or referred to therein
(A) to permit any and all Conveyance Actions
relating to the Partnership or to amend the Tower 45
Partnership Agreement and/or other agreements so that
no provision thereof prohibits, restricts, impairs or
interferes with any Conveyance Action (such amendment
to include, without limitation, the deletion of
provisions which cause a default under the Tower 45
Partnership Agreement if interests therein are
transferred for other than cash),
(B) to admit the Operating Partnership (or the
Company or any affiliate of the Operating Partnership
or the Company in accordance with Section 5.3 above) as
a substitute limited partner or general partner of the
Partnership upon the Operating Partnership's
acquisition of a limited or general partner interest
therein, respectively, and to adopt such amendment as
is necessary or desirable to effect such admission,
(C) to adopt any amendment as may be deemed
desirable by the Operating Partnership, either
simultaneously with or immediately prior to the
acquisition of a limited or general partnership
interest therein, provided, however, that such
amendment will not result in any increased liability on
the part of any Grantor hereunder or under the Tower 45
Partnership Agreement, and
(D) to continue the Partnership following the
transfer of interests therein to the Operating
Partnership (or the Company or any affiliate of the
Operating Partnership or the Company in accordance with
Section 5.3 above).
(vi) As used herein, the term "WAIVERS" means, with
respect to the Partnership, the waiving of any and all rights
that the Grantor may have with respect to, and (to the extent
possible) that any other person may have with respect to, or
that may accrue to the Grantor or other person upon the
occurrence of, a Conveyance Action relating to the
Partnership, including, but not limited to, the following
rights:
(A) rights of notice,
(B) rights to response periods,
(C) rights to purchase the direct or indirect
interest of another partner in the Partnership or to
sell the Grantor's or other person's direct or indirect
interest therein to another partner,
(D) rights to sell the Grantor's or other person's
direct or indirect interest therein at a price other
than as provided herein, or
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(E) rights to prohibit, limit, invalidate, otherwise
restrict or impair any such Conveyance Action or to
cause a termination or dissolution of the Partnership
because of such Conveyance Action.
(f) The Grantor by its execution hereof with respect to each
Other Partnership in which an Interest owned by the Grantor represents a direct
or indirect interest therein, gives such consent as is necessary to cause each
Partnership, as applicable, to have authority to transfer all or substantially
all of the assets of such Partnership to the Operating Partnership on such terms
and conditions as such Other Partnership and the Operating Partnership may
agree.
(g) The Grantor by its execution hereof gives such consent as
is necessary to cause, with respect to the partnership agreement of each
partnership in which an Interest of the Grantor represents, directly or
indirectly, a limited partner or general partner interest, an amendment thereto
to enable such partnership, to the extent permissible under applicable law,
(A) to admit the Operating Partnership (or the
Company or any affiliate of the Operating Partnership
or the Company in accordance with Section 5.3 above) as
a substitute limited partner therein and/or a
substitute general partner therein if the Operating
Partnership (or the Company or any affiliate of the
Operating Partnership or the Company in accordance with
Section 5.3 above) by the exercise of the Option
acquires a limited partnership interest or a general
partnership interest in such partnership,
(B) to redeem the interest of any other partner
therein who has not agreed to become a party to this
Agreement,
(C) to distribute to all partners thereof, including
any partner who has not agreed to become a party to
this Agreement, OP Units and cash (in such proportions
to each partner therein as the general partner or
general partners thereof may determine, provided that
the Grantor receives as a result of all such
distributions and the direct payment of consideration
hereunder, the amount of cash that is equal to the
Acquisition Consideration provided for herein), and
thereafter, at the Operating Partnership's option, to
dissolve, and
(D) any such other amendment as the Operating
Partnership may deem desirable,
provided that such amendment occurs simultaneously with or immediately
prior to the acquisition of the applicable partnership interest, and
provided further, that such amendment will not result in any increased
liability on the part of any Grantor hereunder or under the applicable
partnership agreement.
(h) Notwithstanding anything to the contrary contained in this
Agreement, the consents and waivers contained in this section 5.9 shall only be
effective upon the contemporaneous payment in full by the Operating Partnership
of the Acquisition Consideration.
5.10 Confidentiality. (a) Except as required by law, the Grantor shall
treat as strictly confidential the fact that the Company is contemplating an
offering of its Common Stock until such time as the Company has filed the
Registration Statement with the Securities and Exchange Commission, and shall
not communicate at any time the terms of this Agreement to any person other than
counsel or advisors to the Grantor who agree to keep such terms confidential,
any affiliate or shareholder of the Grantor whose approval is required for the
execution of this Agreement, and any lender holding a lien on any Interests.
(b) The Grantor shall treat all information received from the
Operating Partnership or its counsel or advisors pertaining to the Operating
Partnership or the Company confidential and shall disseminate same only as
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required by law, to an affiliate or shareholder of Grantor to the extent
necessary to obtain approvals required for the transaction contemplated hereby,
and to counsel to the Grantor who agree to keep such information confidential.
5.11 Computation of Time. Any time period provided for herein which
shall end on a Saturday, Sunday or bank or legal holiday shall extend to 5:00
p.m. of the next full business day. All times are New York City time.
5.12 Survival. It is the express intention and agreement of the parties
hereto that the representations, warranties and covenants of the Grantor set
forth in this Agreement shall survive the consummation of the transactions
contemplated hereby.
5.13 Time of the Essence. Time is of the essence with respect to all
obligations of the Grantor under this Agreement.
5.14 Non Discrimination. If the Operating Partnership purchases any
interest in the Partnership from any entity other than the Grantor, the
Operating Partnership must exercise its Option to purchase Grantor's Interest
under this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
OPERATING PARTNERSHIP:
TOWER REALTY OPERATING
PARTNERSHIP, L.P.
By: TOWER REALTY TRUST, INC.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer and
President
GRANTOR:
HAZAMA T-45
By: /s/ Xxxxxxx Xxxx
---------------------------
Name: Xxxxxxx Xxxx
Title: Secretary
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Schedule A
Interests
Grantor's Name & Address Description of Interests
------------------------ ------------------------
Hazama T-45 10% Class A Limited
0000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxx Partner Interest in the
Xxxxx 000 Xxxxxxxxxxx.
Xxxxxxx, XX 00000-0000
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Schedule B
Exceptions to Title
None
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Schedule C
Interests in Other Partnerships and Properties (see below)
None
Other Partnerships and Properties
Property Partnership Owner
-------- -----------------
1. 000 Xxxxxxx Xxxxxx 000 Xxxxxxx, X.X.
Xxx Xxxx, Xxx Xxxx
0. 000 Xxxxxxx Xxxxxx 000 Xxxxxxx, X.X.
Xxx Xxxx, Xxx Xxxx
0. 000 Xxxxxxx Xxxxxx 292 Madison, L.P.
New York, New York
4. 120 Executive Centre Tower Mineola Limited Partnership
Mineola, New York (former owner was CXX Mineola Limited
Partnership)
5. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000-00 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
6. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
7. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
8. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
9. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
10. Corporate Center Building 9630 Corporate Center Associates, Limited Partnership
Phoenix, Arizona
11. 0000 Xxxxx Xxxxxxx Xxxxxx 2800 Associates, L.P.
Phoenix, Arizona
12. Century Plaza Executive Villas Limited Partnership
Phoenix, Arizona
13. 0000 X. Xxxxxxxx Xxxx Xxxxxxxx 5151 Limited Partnership
Tucson, Arizona
