Exhibit 10.3
SALE AGREEMENT
among
RECKSON OPERATING PARTNERSHIP, L.P.,
certain of its
SUBSIDIARIES
listed on the signature pages hereof,
RECKSON AUSTRALIA OPERATING COMPANY LLC
and
RECKSON AUSTRALIA LPT CORPORATION
Dated as of August 12, 2005
TABLE OF CONTENTS
Page
Section 1. Properties to be Sold; Responsible Entity Termination; Schedules...............................2
1.01. Transfer of Properties.........................................................................2
1.02. Additional Components of Properties; Excluded Property.........................................3
1.03. Review Materials...............................................................................3
1.04. Due Diligence..................................................................................3
1.05. Requests for Estoppels and Consents............................................................4
1.06. Termination; Surviving Obligations.............................................................4
1.07. Intentionally Omitted..........................................................................4
1.08. Responsible Entity Termination Trigger Event...................................................4
1.09. Revisions to Schedules.........................................................................4
Section 2. Objections to Title............................................................................5
2.01. (a) Title Commitments; Title Policies; Permitted Exceptions....................................5
Section 3. Sale Consideration.............................................................................8
3.01. Consideration..................................................................................8
3.02. Adjustments to Consideration...................................................................8
3.03. Intentionally Omitted..........................................................................9
3.04. Intentionally Omitted..........................................................................9
3.05. Intentionally Omitted..........................................................................9
Section 4. The Closing....................................................................................9
4.01. Closing........................................................................................9
4.02. Intentionally Omitted..........................................................................9
4.03. Intentionally Omitted..........................................................................9
4.04. Intentionally Omitted..........................................................................9
4.05. Intentionally Omitted..........................................................................9
4.06. Dates; Times; Dollars..........................................................................9
Section 5. Representations and Warranties.................................................................9
5.01. Seller Representations and Warranties..........................................................9
5.02. Relevant Purchasers Representations and Warranties............................................13
5.03. REIT Representations and Warranties...........................................................13
5.04. (a) Survival of Seller Representations and Warranties; Modification Thereof...................14
TABLE OF CONTENTS
(continued)
Page
5.05. (a) Indemnification by Seller; Cap; Basket....................................................15
Section 6. Acknowledgments of the Company................................................................17
6.01. No Prior Representations or Warranties........................................................17
6.02. As-Is.........................................................................................17
6.03. Environmental Matters.........................................................................18
Section 7. Seller's Obligations as to the Properties.....................................................18
7.01. Operation of Properties Prior to Closing......................................................18
7.02. Certain Lease/Service Contract Actions........................................................19
7.03. Certain Prohibited Actions....................................................................19
7.04. Maintenance of Insurance......................................................................19
7.05. Required Tenant Estoppels; Seller Estoppel....................................................20
7.06. Landlord Estoppels............................................................................20
7.07. Required Consents.............................................................................20
7.08. Termination of Existing Property Management Agreements........................................20
7.09. Intentionally Omitted.........................................................................20
7.10. Intentionally Omitted.........................................................................20
Section 8. Destruction, Damage or Condemnation...........................................................21
8.01. (a) Condemnation..............................................................................21
Section 9. Additional Covenants of Seller................................................................22
9.01. Access........................................................................................22
Section 10. Conditions Precedent to Closing...............................................................22
10.01. Conditions Precedent to Company Obligations...................................................22
10.02. Conditions Precedent to Seller Obligations....................................................23
10.03. Effect of Seller's Failure to Meet Conditions.................................................24
Section 11. Seller's Closing Deliveries...................................................................25
11.01. Seller Closing Deliveries.....................................................................25
11.02. Delivery Requirements for SPE Entity..........................................................27
Section 12. The Company's Closing Deliveries..............................................................27
12.01. Company Deliveries............................................................................27
Section 13. Apportionments; Closing Costs.................................................................29
-3-
TABLE OF CONTENTS
(continued)
Page
13.01. General Apportionments........................................................................29
13.02. Adjustment of Taxes...........................................................................29
13.03. Credits.......................................................................................30
13.04. Tenant Arrearages.............................................................................30
13.05. Additional Rent...............................................................................31
13.06. Closing Statements............................................................................31
13.07. Closing Costs.................................................................................31
Section 14. Failure of Seller or the Company to Perform...................................................32
14.01. Company Default/Breach Prior to Closing.......................................................32
14.02. Seller Default/Breach Prior to Closing........................................................32
14.03. Termination of Agreement Regarding Aggregation of Title, Survey, Closing Condition,
Condemnation and Casualty Events..............................................................32
Section 15. Broker........................................................................................32
15.01. No Broker.....................................................................................32
Section 16. Notices.......................................................................................33
16.01. Form of Notice................................................................................33
Section 17. Miscellaneous Provisions......................................................................34
17.01. Assignment or Transfer........................................................................34
17.02. Integration Clause............................................................................34
17.03. Amendments....................................................................................34
17.04. Governing Law.................................................................................34
17.05. Captions......................................................................................34
17.06. Successors and Assigns........................................................................35
17.07. Masculine and Feminine Terms..................................................................35
17.08. Schedules and Riders..........................................................................35
17.09. Counterparts..................................................................................35
17.10. No Recordation................................................................................35
17.11. No Third Party Beneficiaries..................................................................35
17.12. No Offer......................................................................................35
17.13. Jurisdiction; Service of Process..............................................................35
-4-
TABLE OF CONTENTS
(continued)
Page
17.14. Further Assurances; Cooperation Regarding Consents............................................35
Section 18. Certain Tax Matters...........................................................................36
18.01. Like-Kind Exchanges...........................................................................36
Section 19. Entity Transfers..............................................................................36
19.01. Entity Transfer Provisions....................................................................36
Section 20. Certain Provisions Regarding SPE Entities.....................................................37
20.01. SPE Entities..................................................................................37
Exhibits
--------
Exhibit A. Subsidiaries
Exhibit B. Properties
Exhibit C. Form of Limited Liability Company Agreement
Exhibit D-1. Form of Property Management and Leasing Agreement
Exhibit D-2. Form of Construction Service Agreements
Exhibit D-3. Form of Services Agreement
Exhibit D-4. Form of AM Agreement
Exhibit E. Form of Tenant Estoppel
Exhibit F. Form of Landlord Estoppel
Exhibit G. Intentionally Omitted
Exhibit H. Intentionally Omitted
Exhibit I. Form of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP Opinion
Exhibit J. Intentionally Omitted
Exhibit K. Form of License Agreement
Exhibit L. Intentionally Omitted
Exhibit M. Intentionally Omitted
Exhibit N. Form of Option Agreement
Schedules
---------
Schedule 1.01(c) Real Properties
Schedule 1.02 Excluded Personal Property
Schedule 3.01(c)(i) Consideration and Sales Price
Schedule 5.01(e)-1 Rent Rolls
Schedule 5.01(e)-2 Tenant Arrearages
Schedule 5.01(f) Leases
-5-
Schedule 5.01(g) Ground Leases
Schedule 5.01(h) Brokerage Agreements
Schedule 5.01(i) Material Service Contracts
Schedule 5.01(j) Capital Improvement Projects
Schedule 5.01(k) Environmental Reports
Schedule 5.01(o) Litigation Schedule
Schedule 5.01(p) Outstanding Agreements with Attorneys or Consultants
Schedule 5.05(a) Special Indemnification Matters
Schedule 7.07 Required Consents
-2-
INDEX OF DEFINED TERMS
Defined Term Section
------------ -------
1031 Exchange...........................................................18.01
Additional Rent. .......................................................13.05
Advance Rent.........................................................13.01(a)
Agents...................................................................1.03
Agreement............................................................Preamble
AM Agreement.........................................................Recitals
Assignment of Ground Leases..........................................11.01(q)
Assignment of Leases.................................................11.01(r)
Australian Trust.....................................................Recitals
Basket................................................................5.05(a)
Brokerage Agreements..................................................5.01(h)
Business Days............................................................7.01
Cap...................................................................5.05(a)
Closing..................................................................4.01
Closing Date.............................................................4.01
Closing Deadline.........................................................4.01
Code Withholding Section..............................................5.01(n)
Company..............................................................Preamble
Condition Failure Threshold..........................................10.03(a)
Consideration.........................................................3.01(c)
Cost to Cure .........................................................2.01(d)
CS Agreements........................................................Recitals
Cure Choice Notice....................................................2.01(c)
Defect................................................................2.01(c)
Defect Property.......................................................2.01(c)
Defects Notice........................................................2.01(c)
Defect Threshold......................................................2.01(c)
Defect Threshold Deadline.............................................2.01(c)
Defect Threshold Termination Right....................................2.01(c)
DYNA Models...........................................................2.01(e)
Election to Defend....................................................5.05(d)
Entity Transfer.........................................................19.01
Environmental Reports.................................................5.01(k)
Excluded Properties.....................................................?????
Excluded Personal Property ..............................................1.02
Excluded Property License Agreements.....................................1.02
Failed Closing Condition Property.......................................10.03
Final Closing Statement.................................................13.06
Ground Leases.........................................................5.01(g)
Landlord Estoppel........................................................7.06
Leases................................................................5.01(f)
LLC Agreement........................................................Recitals
Losses................................................................5.05(a)
Major Tenant..........................................................5.01(f)
Manager..............................................................Recitals
Material Service Contracts............................................5.01(i)
Must Removes..........................................................2.01(a)
-3-
Defined Term Section
------------ -------
Notice..................................................................16.01
Option Agreement.....................................................11.01(w)
Owner Operating Partnership..........................................Preamble
Permitted Exceptions..................................................2.01(a)
Post-Closing Adjustment Period..........................................13.06
Portfolio Services Agreements........................................Recitals
Property Management Agreements.......................................Recitals
Property Services Agreements.........................................Recitals
Properties...........................................................Recitals
XXXX.................................................................Recitals
Real Properties.......................................................1.01(c)
REIT.................................................................Preamble
RE Trigger Event ........................................................1.08
Relevant Purchasers..................................................Recitals
Rent Rolls............................................................5.01(e)
Rep Survival Period...................................................5.04(a)
Required Consents........................................................7.07
Required Forms.......................................................11.01(t)
Responsible Entity....................................................Recital
Review Materials.........................................................1.03
Searches..............................................................2.01(a)
Seller...............................................................Preamble
Seller Closing Conditions...............................................10.01
Seller Estoppel..........................................................7.05
Seller's Knowledge....................................................5.04(a)
Service Contracts.....................................................5.01(i)
Services Agreement...................................................Recitals
Sold Entity.............................................................19.01
Sold Interests...........................................................1.01
SPE Entities.........................................................Recitals
Special Indemnification Matters ......................................5.05(a)
Subsidiaries.........................................................Preamble
Substitute Ground Lessor Estoppel .......................................7.06
Substitute Property...................................................2.01(e)
Survey................................................................2.01(b)
Surveys...............................................................2.01(b)
Surviving Obligations....................................................1.06
Tenant Estoppels.........................................................7.05
Third Party Claim......................................................5.5(d)
Title Cap.............................................................2.01(a)
Title Commitments.....................................................2.01(a)
Title Company.........................................................2.01(a)
Title Policies........................................................2.01(a)
Underwriting Agreement...................................................4.01
Underwriting Deadline....................................................4.01
-4-
SALE AGREEMENT
--------------
This SALE AGREEMENT (this "Agreement") dated as of[August ___, 2005,
among RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("Owner Operating Partnership"), having an address at 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000, and the various direct and indirect wholly owned or
controlled subsidiaries of Owner Operating Partnership set forth on Exhibit A
annexed hereto and on the signature pages hereof (collectively, the
"Subsidiaries"; the Subsidiaries and Owner Operating Partnership,
collectively, "Seller"), RECKSON AUSTRALIA OPERATING COMPANY LLC, a Delaware
limited liability company, having an address at c/o Reckson Management Group,
Inc., 000 Xxxxxxxxxxx Xxxx, Xxxxx 000X, Xxxxxxxx, Xxx Xxxx 00000, Attn:
Xxxxxxx Xxxxxxx, Fax: 000-000-0000, Telephone: 000-000-0000 (the "Company")
and RECKSON AUSTRALIA LPT CORPORATION, a Maryland corporation (the "REIT"),
having an address at c/o Reckson Management Group, Inc., 000 Xxxxxxxxxxx Xxxx,
Xxxxx 000X, Xxxxxxxx, Xxx Xxxx 00000, Attn: Xxxxxxx Xxxxxxx, Fax:
000-000-0000, Telephone: 000-000-0000. Defined terms used herein may be
located using the Index of Defined Terms immediately preceding this Preamble.
RECITALS:
---------
A. Owner Operating Partnership directly owns, or indirectly owns through
its wholly owned Subsidiaries, fee simple interests or ground leasehold
interests (as lessee) in the Real Properties (as hereinafter defined) set
forth on Exhibit B annexed hereto.
B. The Company is a subsidiary of the REIT, and was formed for the
purpose of acquiring (directly or indirectly) all right, title and interest of
Seller in and to the Real Properties; such acquisition may be effectuated by
the acquisition of all of Owner Operating Partnership's right, title and
interest in some or all of the Subsidiaries in lieu of the acquisition of the
assets of such Subsidiaries, as contemplated by Section 19 hereof.
C. At the Closing, inter alia, Seller shall sell the Properties (as
hereinafter defined) to the Company and/or to certain designees of the Company
(which designees shall be referred to herein as the "SPE Entities", and which
SPE Entities shall be wholly-owned, and to the extent required by any
applicable lenders in respect of such SPE Entities, special purpose,
subsidiaries of the Company, newly formed prior to the Closing), as
applicable, pursuant to the terms of this Agreement and upon the satisfaction
of the conditions to the Closing set forth herein.
D. Seller shall receive cash proceeds pursuant to terms of this Agreement
with respect to the sale of the Properties to the Company and/or the SPE
Entities (the Company and/or the SPE Entities, as the context may require,
shall be referred to herein as the "Relevant Purchasers").
E. The parties intend for the foregoing to be accomplished in a single
closing (referred to herein as a "Closing", as more particularly defined
herein), subject to the terms and conditions set forth herein.
F. At the Closing, Owner Operating Partnership and the REIT shall enter
into that certain Amended and Restated Limited Liability Company Agreement of
the Company annexed hereto as Exhibit C (the "LLC Agreement").
G. At the Closing, (i) Reckson Management Group, Inc., a New York
corporation (which is an Affiliate (as defined in the LLC Agreement) of Owner
Operating Partnership) or certain Affiliates of Reckson Management Group, Inc.
(any of the foregoing, as the context may require, "Manager"), (ii) the
Company, and (iii) each Affiliate of the Company that shall be acquiring a
Property
at such Closing, or, to the extent Sold Interests are acquired in lieu of any
Properties, the Sold Entity (as hereinafter defined), shall enter into a
Property Management and Leasing Agreement, substantially in the form annexed
hereto as Exhibit D-1, (collectively, the "Property Management Agreements").
H. At the Closing, (i) Reckson Construction & Development, LLC, a
Delaware limited liability company, or certain Affiliates of Reckson
Construction & Development, LLC, (ii) the Company, and (iii) each Affiliate of
the Company that shall be acquiring a Property at such Closing, or, to the
extent Sold Interests are acquired in lieu of any Properties, the Sold Entity,
shall enter into a Construction Services Agreement, substantially in the form
annexed hereto as Exhibit D-2 (collectively, the "CS Agreements", together
with the Property Management Agreements, to be referred to as the "Property
Services Agreements").
I. At the Closing, Manager and the Company shall enter into that certain
Services Agreement substantially in the form annexed hereto as Exhibit D-3
(the "Services Agreement").
J. At the Closing, Reckson Australia Asset Manager LLC, a Delaware
limited liability company, and the REIT shall enter into that certain Asset
Management Agreement substantially in the form annexed hereto as Exhibit D-4
(the "AM Agreement", and together with the Property Services Agreements and
the Services Agreement, collectively, the "Portfolio Services Agreements").
K. On or before the Closing, Reckson Australia Management Ltd., a
corporation organized under the laws of New South Wales, Australia ("XXXX")
will be the responsible entity (the "Responsible Entity") in respect of
Reckson New York Property Trust, an Australian listed property trust (the
"Australian Trust").
L. At the Closing, Owner Operating Partnership, certain of its
affiliates, the Company and the REIT shall enter into that certain Option
Agreement (as hereinafter defined).
M. At or prior to the Closing, Reckson Australia Management Limited and
Citigroup Global Markets Australia Pty Ltd and UBS AG, Australia Branch shall
enter into that certain Underwriting Agreement (as hereinafter defined).
NOW THEREFORE, in consideration of the terms and conditions contained in
this Agreement, the mutual covenants herein contained and other good and
valuable consideration, the mutual receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Properties to be Sold; Responsible Entity Termination;
Schedules
1.01. Transfer of Properties. At the Closing, Seller shall sell the
relevant Properties or the Sold Interests to the Relevant Purchaser, as
described below:
(a) Intentionally Omitted.
(b) Intentionally Omitted.
(c) Properties. At the Closing, Seller shall sell, assign, transfer
and deliver to the Relevant Purchaser, and the Relevant Purchaser shall
purchase and receive from Seller, upon the terms and conditions set forth in
this Agreement, either or both of (i) fee simple and/or leasehold interests in
and to the Properties set forth on Schedule 1.01(c) annexed hereto (the "Real
Properties"), and all right, title and interest of Seller in and to the
fixtures, equipment and other property attached or appurtenant to the Real
Properties or (ii) Sold Interests in the Sold Entities that own such Real
Properties (the "Sold
-2-
Interests"; it being acknowledged and agreed that references in this Agreement
to the "Properties" shall be deemed references to either or both of the Real
Properties or the Sold Interests, as the context may require; the Real
Properties, together with the Sold Interests, the "Properties"); in exchange
for the Consideration that is allocated among such Properties as described in
Section 3 of this Agreement.
1.02. Additional Components of Properties; Excluded Property. For
purposes of this Agreement, the term "Real Properties" shall also include,
without limitation, all right, title and interest of Seller in and to any
easements, rights of way, strips, gores, privileges, licenses, appurtenants
and other rights, benefits and interests, appurtenant thereto, including,
without limitation, all right, title and interest of Seller in and to any
streets or other public ways adjacent to the Real Properties and any water,
sewer, utility district or mineral rights owned by, or leased to, Seller, all
improvements located on each Real Property and all structures, systems and
utilities utilized by Seller with respect to such Real Properties exclusively
(but excluding any improvements owned by tenants under any Leases at the Real
Properties, except any improvements owned by Seller or to which Seller has
rights under any Ground Lease), all tangible personal property owned by Seller
and located on the land or used in connection with each Real Property and all
of Seller's right, title and interest in and to all Leases, Ground Leases, all
security deposits given under all Leases, the Ground Leases and all Service
Contracts and other agreements to the extent any adjustments are made pursuant
to Section 13.01. Notwithstanding anything to the contrary in this Agreement,
the property described on Schedule 1.02 annexed hereto and made a part hereof
(the "Excluded Personal Property") shall not be included in the Properties
subject to transfer pursuant to this Agreement, nor shall the Excluded
Personal Property be subject to transfer by operation of law or otherwise in
connection with transfer of Sold Interests under this Agreement. The parties
acknowledge and agree that, at the Closing, Seller and the Relevant Purchaser
shall enter into license agreements ("Excluded Property License Agreements")
in the form annexed hereto as Exhibit K and made a part hereof with respect to
certain Excluded Personal Property described on Schedule 1.02.
1.03. Review Materials. Seller has made available to the Company true,
correct and complete copies of the Title Commitments, the Searches, the
Surveys, the Leases, Ground Leases, the Environmental Reports, the Continuing
Loan Documents, any engineering reports and appraisals ordered by Seller for
the Company (together with any other materials reasonably requested by the
Company, collectively, the "Review Materials"). The Review Materials and any
other materials, reports, surveys, books and records examined by or on behalf
of the Company pursuant to this Agreement shall: (i) be held in strict
confidence by the Company, (ii) not be used for any purpose other than the
investigation and evaluation of the Properties by the Company and its lenders,
attorneys, financial advisors, investors, accountants, partners, members,
directors, officers, employees, agents, engineers and consultants involved or
likely to be involved in this transaction (collectively, the "Agents"), and
(iii) not to be disclosed, divulged or otherwise furnished to any other person
or entity prior to the Closing except to the Agents, as otherwise contemplated
herein, or as permitted by Seller, or as required by law, regulation or court
order. If this Agreement is terminated for any reason whatsoever, the Company
shall, at its option, destroy or return to Seller all of the Review Materials
in the possession of the Company and the Agents. The provisions of this
Section shall survive the termination of this Agreement.
1.04. Due Diligence. The Company acknowledges that, prior to the
execution of this Agreement, it has been permitted to make a complete review,
evaluation and inspection of the Real Properties and has completed all due
diligence deemed desirable by the Company with respect to the Real Properties.
To the extent not already delivered, copies of all other environmental,
appraisals, engineering or any other third party reports prepared by or on
behalf of the Company with respect to the Properties shall be provided
promptly to Seller and such reports shall be held subject to the second
sentence of Section 1.03. Subject to Section 9.01, the Company shall have no
further right to inspect the Real Properties or to conduct any testing in
respect thereof unless approved in writing by Seller, such approval not to be
unreasonably withheld, delayed or conditioned. The Company acknowledges that
it has entered
-3-
into this Agreement with the intention of making and relying solely upon its
investigation of the physical, environmental, economic and legal condition of
the Real Properties and that it is not relying upon any representation or
warranty of Seller or any agent, employee, representative or Affiliate of
Seller, other than those specifically set forth herein. The Company further
acknowledges that it has not received from Seller any accounting, tax, legal,
architectural, engineering, environmental property management or other advice
with respect to the transactions contemplated hereby and that, except as
otherwise expressly provided herein, the Company is relying solely upon the
advice of its own accounting, tax, legal, architectural, engineering,
environmental, property management and other advisors.
1.05. Requests for Estoppels and Consents.
(a) Tenant Estoppels; Landlord Estoppels; Consents. Prior to the
Closing Date, with respect to the Properties, Seller shall submit (i) written
requests for Tenant Estoppels to all tenants of the Properties, (ii) written
requests for Landlord Estoppels to all ground lessors under the applicable
Ground Leases and (iii) written requests for consents to the appropriate party
in accordance with Section 7.07.
(b) Intentionally Omitted.
(i) Intentionally Omitted.
(c) Intentionally Omitted.
(d) Intentionally Omitted.
1.06. Termination; Surviving Obligations. In the event that any express
provision of this Agreement gives any party the right to terminate this
Agreement, such party shall notify the other parties in writing of such
termination, and upon delivery of such notice this Agreement shall be
terminated and neither Seller, the Company, nor the REIT shall have any
further liability to the other hereunder, except with respect to the covenants
and indemnities explicitly stated to survive termination of this Agreement,
including, without limitation, those contained in Section 1.03, Section
2.01(e), Section 5.01, Section 6.01, Section 6.03, Section 13.02, Section
13.04, Section 13.06, Section 14, Section 15 and Section 17, which shall be
referred to herein as the "Surviving Obligations".
1.07. Intentionally Omitted.
(a) Intentionally Omitted.
(b) Intentionally Omitted.
1.08. Responsible Entity Termination Trigger Event. Notwithstanding
anything herein to the contrary, in the event that Reckson Australia
Management Ltd. (or any successor to Reckson Australia Management Ltd. that
shall be a controlled Affiliate of Owner Operating Partnership) is terminated
or otherwise removed or retired as the Responsible Entity for any reason (an
"RE Trigger Event"), then Owner Operating Partnership may, at its option and
in its sole discretion, elect to terminate this Agreement in its entirety,
subject to the Surviving Obligations.
1.09. Revisions to Schedules. The parties acknowledge and agree that, as
of the date hereof, certain schedules of this Agreement describing and
allocating the consideration are in a preliminary form or, due to the nature
of such schedules, it is impossible or unduly burdensome to continuously
update such schedules. The parties will use commercially reasonable efforts to
agree upon
-4-
final forms of each schedule prior to the Closing, using good faith efforts to
conform such schedules to such parties' expectations as contemplated in the
relevant DYNA Models, the PDS and other transaction documents (it being
acknowledged and agreed that, to the extent necessary or desirable for the
exercise of for the proper exercise of any right granted to the parties
hereunder, such schedules will be finalized in a timely manner to permit the
relevant party to exercise such right in an informed manner, and the relevant
time periods for exercise of such rights will be extended on a day for day
basis attributable to any delay attributable to the other party, as may be
necessary).
Section 2. Objections to Title
2.01. (a) Title Commitments; Title Policies; Permitted Exceptions. The
Company acknowledges and agrees that it has received copies of ALTA title
insurance commitments (together with any updates and endorsements thereto, the
"Title Commitments") issued by Commonwealth Land Title Insurance Company
and/or First American Title Insurance Company or such other reputable title
insurance companies designated by Seller which is licensed to do business in
the states where the Properties are located (collectively, the "Title
Company") in respect of all of the Properties on or prior to the date hereof.
The title insurance policies to be issued at the Closing by Title Company
pursuant to the Title Commitments shall be standard forms of owner's policies
(ALTA Form 1992 or later), in jurisdictions where such forms of policy are
available, in the collective amount of the Consideration allocated to the
relevant Properties as the Company shall require at the Closing, and shall
contain such endorsements (including non-imputation), affirmative coverages
and reinsurance and/or co-insurance as the Company shall reasonably require
(collectively, the "Title Policies"). Each Title Policy shall insure (in the
policy amount set forth therein) that the Company or applicable Subsidiary
listed in such policy holds fee or leasehold title to such Property, as
applicable, as of the Closing Date, subject only to, with respect to such
Property, (i) the exceptions contained in the applicable Title Commitment as
of the date hereof (except for any "standard" or "general" exceptions, which
shall be removed by satisfactory title affidavit from Seller), (ii) any
matters affecting title created before or after the date hereof by or with the
written consent of the Relevant Purchasers, (iii) any other title or survey
matters which arise after the date hereof that either are not objected to in
writing by the Company pursuant to Section 2.01(c) hereof, or, if objected to
in writing by the Company pursuant to Section 2.01(c) hereof, are those (A)
which Seller has elected in writing not to remove or cure (which shall be a
matter within Seller's sole discretion, excepting solely as to Must Removes
(as defined below), or has been unable to remove or cure prior to the Closing
Date (excepting Must Removes), and, in each case, subject to which the Company
has elected in writing to accept as Permitted Exceptions, (B) over which the
Title Company is willing to insure or provide affirmative insurance (at no
cost or expense to the Relevant Purchasers), or (C) which are the
responsibility of any tenant under the Leases to cure, correct or remove
including, without limitation, Leases executed in accordance with the terms of
Section 7, and (iv) any other matters to which the Relevant Purchasers are
required to accept title to the Properties pursuant to the terms of this
Agreement, (clauses (i) through (iv), collectively, the "Permitted
Exceptions"), and (v) with respect to all Properties, otherwise free and clear
of all standard or general exceptions contained in the Title Commitments which
the Title Company is permitted by applicable law to remove upon delivery of
the Surveys and customary title affidavits from Seller. Seller shall cause the
Title Policies to be issued to the Relevant Purchasers at the Closing. The
Company has ordered, at Company's expense, customary UCC, judgment, lien and
bankruptcy searches against Seller and the Properties (as applicable)
(together with any updates thereto, collectively, the "Searches").
Notwithstanding anything contained herein to the contrary, the following shall
not be deemed "Permitted Exceptions" (collectively, the "Must Removes"): (X)
any monetary liens voluntarily created by Seller including, without
limitation, any mortgage, lien, pledge, encumbrance or exception to title
against such Property (whether such Property consists of Sold Interests or
Real Property) created by the voluntary action of Seller or its Affiliates
against or affecting such Property that can be removed or cured by payment of
a liquidated sum of money and (Y) any judgment, fines penalties or other
involuntary liens affecting such Property if and to the extent that the
aggregate cost of satisfying
-5-
the claims secured by such liens is less than (i) Twenty-Five Thousand
($25,000) Dollars per Property and (ii) the aggregate of Five Hundred Thousand
($500,000) Dollars for all Properties (as applicable, the "Title Cap").
(b) Surveys. The Relevant Purchasers acknowledge and agree that on or
prior to the date hereof they have received copies of updated surveys of each
of the Properties in form and substance satisfactory to the Relevant
Purchasers (the "Surveys", and each, a "Survey"), certified to the Company,
the Relevant Purchasers and the Title Company.
(c) Defects. Subject to Section 2.01(e), with respect to (i) any new
matters raised by the Title Company after the date hereof as an additional
exception in any Title Commitment or (ii) such new matters as may be disclosed
by updates to any Survey or the Searches and, in the case of clauses (i) and
(ii), which (x) have a material adverse effect on the use, utility or value of
the Property or the use, utility or value of the Sold Interests, and (y) are
not otherwise Permitted Exceptions (each a "Defect"), within five (5) Business
Days after the Company receives written notification thereof, the Company
shall give written notification(s) to Seller (each such notification, a
"Defects Notice") of any objections the Company may have to such Defect.
Seller shall elect, by written notice (each such notice, a "Cure Choice
Notice") within seven (7) Business Days after receipt of a Defects Notice (it
being agreed that failure to provide notice of such election within such
period shall be deemed refusal to cure such Defect to the Relevant
Purchasers), to either cure or refuse to cure any such Defect with regard to
any Property. If Seller elects to cure such Defect in accordance with the
foregoing, such Defect shall be deemed a "Must Remove" under this Agreement.
If the Seller does not elect to cure such Defect in accordance with the
foregoing, the Company shall notify Seller within five (5) Business Days (the
expiration date of such five (5) Business Day period, the "Defect Threshold
Deadline") after expiration of such seven (7) day period whether it shall (i)
terminate this Agreement in its entirety, subject to the Surviving
Obligations, provided that the Relevant Purchasers shall not have the right to
terminate this Agreement pursuant to this clause (i) until the Relevant
Purchasers shall have terminated this Agreement pursuant to the following
clause (ii) with respect to one or more Properties, the individual or
aggregate value of which (based conclusively on the Consideration allocated to
such Property or Properties as set forth on the relevant schedules), is
greater than or equal to twenty-five percent (25%) of the Consideration as of
the date hereof (such threshold, the "Defect Threshold"), or (ii) terminate
this Agreement with respect to the affected Property (each such affected
Property as to which this Agreement is terminated, a "Defect Property") only
(in which event (x) this Agreement shall, without further action of the
parties, be deemed to have been automatically and ipso facto amended so as to
eliminate such Property, (y) the Consideration shall be reduced by the portion
thereof allocated to such Property, and the Cap shall be proportionately
reduced (but the Basket shall not be reduced as a result of such elimination),
and (z) this Agreement shall otherwise remain in full force and effect); it
being agreed that failure to provide notice of such election within such
response time period shall be deemed an election to proceed with the
transactions contemplated in this Agreement, subject to the terms and
conditions of this Agreement, without terminating this Agreement with respect
to any such affected Property, provided that the foregoing shall not be
construed as a waiver of any subsequent termination rights that may be
available to the Relevant Purchasers under this Section 2.01(c). If the Defect
Threshold is reached, then Seller shall have the right ("Defect Threshold
Termination Right") to terminate this Agreement in its entirety by written
notice to the Relevant Purchasers on or before the Defect Threshold Deadline;
failure to exercise the Defect Threshold Termination Right in accordance with
the foregoing shall be deemed an election by Seller to proceed with the
transactions contemplated in this Agreement, subject to reinstatement of the
Defect Threshold Termination Right at such time as further Defects
aggregating, together with previously discovered Defects, in excess of the
Defect Threshold may be revealed in accordance with the foregoing. Each Defect
Property not replaced with a Substitute Property shall become an "Option
Property" under the Option Agreement, and shall be subject to the terms and
conditions of the Option Agreement.
-6-
(d) Cure of Defects. Seller shall have the right, but not the obligation,
to cure any such Defect within fifteen (15) Business Days after its receipt of
the Defect Notice, or in the case of any Defect which cannot with due
diligence be cured within such fifteen (15) Business Day period, such later
date by which such Defect can reasonably be cured, provided that Seller
commences to cure such Defect within such fifteen (15) Business Day period and
thereafter continues diligently and in good faith to cure the Defect,
provided, further, that Seller's right to cure any Defect in accordance with
the foregoing provisions is subject to compliance with the provisions of
Section 2.01(c) of this Agreement applicable to Cure Choice Notices. In the
event that Seller elects not to cure any such Defect or is unable to effect
such cure prior to the Closing, the Company shall have the remedies provided
in Section 2.01(c), this Section 2.01(d) and Section 14 hereof.
Notwithstanding anything to the contrary contained in this Agreement, Seller
shall have no obligation to cure any Permitted Exceptions and Defects (other
than the Must Removes) and shall only have the obligation to cure the Must
Removes. If Seller fails to cure any Defects other than the Must Removes, or
if by the expiration of the cure period provided for above, Seller has failed
to cure all Defects (other than the Must Removes), the Company shall
nonetheless be obligated to proceed to close subject to any such Defects. In
such event, at the Company's sole election, (a) the Company shall deduct from
the applicable Consideration with respect to such Property the cost to cure
("Cost to Cure") such Defect as mutually agreed to by the Company and Seller
in their commercially reasonable discretion (it being acknowledged and agreed
that if the Cost to Cure exceeds the Consideration allocated to such Property,
the Relevant Purchasers may allocate such deduction to the Consideration
applicable to any other Properties), or (b) Seller shall place into escrow
with the Title Company, pursuant to an escrow agreement in a form mutually
agreed to by the parties, the cost to cure such Defect as mutually agreed to
by the Company and Seller in their commercially reasonable discretion;
provided, however, that in no event shall the amount of such deduction or such
escrow, together with all amounts paid by Seller to cure Defects (other than
the Must Removes) exceed (i) the portion of the Consideration allocated to
such Property, with respect to any individual Property, or (ii) the Title Cap,
in the aggregate. In no event shall an amount so deducted or escrowed reduce
the amount available under the Title Cap; provided, however, that in the event
that the subject Defect constitutes a Breach of the representations and
warranties contained in Section 5.01(i) or Section 5.01(o), the Company shall
not be entitled to indemnification with respect thereto pursuant to Section
5.05(a), to the extent of amounts in escrow or paid in accordance with this
Section 2.01(d). Seller shall satisfy any Must Removes of record or, as an
alternative to causing such Must Removes to be satisfied of record and
provided that the Title Company agrees to omit such Must Remove(s) from the
Title Policies: (i) bond or cause to be bonded such Must Remove(s), (ii)
deliver or cause to be delivered to the Title Company, on the date of the
Closing, instruments in recordable form and sufficient to satisfy such Must
Remove(s) of record, together with the appropriate recording or filing costs,
or (iii) deposit or cause to be deposited with the Title Company sufficient
monies, acceptable to and reasonably requested by the Title Company, to assure
the obtaining and recording of a satisfaction of the Must Remove(s). With
respect to (a) any condition or state of facts that is set forth on any Title
Commitment, Survey or Search as of date hereof or (b) any Defect (other than
the Must Removes) for which the Company fails to deliver a Defect Notice
thereof in accordance with this Agreement, such Defect or Defect, as the case
may be, shall be deemed approved by the Company and shall constitute a
Permitted Exception hereunder, and the Company shall be obligated to close
without further deduction from the applicable Consideration with respect to
any such items. In the event that any of the foregoing time periods applicable
to the Relevant Purchasers' responses to various notices would otherwise
extend beyond the Closing Date, the Closing Date shall, at the request of the
Relevant Purchasers, be extended on a day for day basis in respect of such
time period.
(e) Substitute Properties In Connection With Title Defects.
Notwithstanding anything to the contrary contained herein, in the event that
any Defect that Seller intended or is otherwise obligated to cure hereunder
has not been cured as of the Closing Date with respect to the applicable
Property in accordance with Section 2.01(c) or Section 2.01(d), such event
shall constitute a "Defect Substitution Event" for purposes of this Agreement.
-7-
(f) Substitution Procedures. If any of (x) a Defect Substitution Event,
(y) a CC Substitution Event (as hereinafter defined) or (z) a Closing
Condition Substitution Event (as hereinafter defined) occurs from time to
time, Seller may in its sole and absolute discretion elect (with respect to a
Defect Substitution Event or a Closing Condition Substitution Event, at any
time at or prior to the applicable Closing; with respect to a CC Substitution
Event, within ten (10) Business Days of delivering notice of such CC
Substitution Event) to retain its interests in such affected Property or
Properties (individually, or collectively, as the context may require, the
"Affected Property") (for purposes of clarity, notwithstanding anything to the
contrary, one Substitute Property may replace more than one Affected Property
if the value of the Substitute Property is greater than or equal to such
replaced Properties) and, in lieu of transferring such interests to the
Company at the Closing, as may be otherwise required by this Agreement, Seller
shall deliver to the Company fee simple title (or Sold Interests, as
applicable) with respect to such Substitute Property, pursuant to the same
terms of this Agreement applicable to any other Property, provided that in the
event that title to the Substitute Property is delivered to the Relevant
Purchaser in accordance with the foregoing, the Company shall obtain the prior
approval of any lender of the Company to release any mortgage or other lien
held by such lender on the Substitute Property in exchange for a lien on the
Property originally required to be delivered at the Closing Date once such
Defect is cured. If the applicable lender does not agree to release such
mortgage or other lien, such mortgage or lien shall, at the sole cost and
expense of Seller, be prepaid in respect of such Substitute Property. For
purposes of this Agreement, "Substitute Property" shall mean a property in the
New York tri-state area (v) with a value (or aggregate value, as applicable),
mutually agreed upon by Seller and the Relevant Purchasers, that is equal to
or greater than that of the Affected Property affected or subject to the
applicable Defect Substitution Event, CC Substitution Event or Closing
Condition Event, (w) generally consistent with the Properties, (x) having
income equal or greater to the amount set forth in the DYNA Model with respect
to such Affected Property, (y) having leases that otherwise comply with the
applicable DYNA Model, and (z) otherwise acceptable to any lender of the
Company providing financing with respect to such Property. Seller shall bear
the costs and expenses of all appraisals required by the foregoing. If such
Substitute Property has a greater value than the value of the Affected
Property, the Consideration (and appropriate components thereof) shall be
increased accordingly. For purposes of this Agreement, the term "DYNA Models"
shall mean those certain net operating income projections for each of the
Properties prepared on behalf of the Company to value the Properties as of the
date set forth in the DYNA Models. If Seller conveys a Substitute Property to
the Company, in lieu of any Property identified on Exhibit B annexed hereto,
Seller shall have the right to require the Company to acquire such Substitute
Property at such time as the conditions set forth in this Agreement with
respect to the acquisition of such Property and the Closing have been
satisfied. Seller shall pay all actual out-of-pocket expenses incurred by the
Company in connection with Seller's exercise of its rights pursuant to the
immediately preceding sentence. It is acknowledged and agreed that upon
substitution of such Substitute Property in accordance with the provisions of
this Section 2.01(f), such substitution shall be deemed to cure the relevant
Defect Substitution Event, CC Substitution Event and/or Closing Condition
Substitution Event applicable to the Affected Property, and notwithstanding
anything to the contrary herein, the Relevant Purchasers shall not be
permitted to (x) exercise any termination right under this Agreement arising
in connection with such Affected Property or (y) to bring any proceeding
otherwise permitted under this Agreement in respect of breach of
representations and warranties or covenants in respect of the Affected
Property. Notwithstanding anything to the contrary in this Agreement, either
party shall have the right, by written notice, to extend the Closing (and all
subsequent Closings on a day for day basis) for up to fifteen (15) Business
Days in order to effectuate the provisions of this Section 2.01(f). This
Section 2.01(f) shall survive the Closing.
-8-
Section 3. Sale Consideration
3.01. Consideration.
(a) Intentionally Omitted.
(b) Intentionally Omitted.
(c) Consideration. Schedule 3.01(c)(i) annexed hereto sets forth (i)
the aggregate agreed upon sales price of the Properties to be sold at the
Closing (referred to herein as the "Consideration")(it being acknowledged and
agreed that the Consideration on the date hereof is One Hundred Five Million
Six Hundred Ninety Six Thousand Nine Hundred Thirty Three and 00/100 Dollars
($105,696,933) for the sale and transfer of each of the Properties to the
Relevant Purchasers at the Closing. Subject to Section 3.02, on the Closing
Date, the Company shall pay to the Owner Operating Partnership or in Seller's
sole and absolute discretion, to the applicable Subsidiary, the Consideration.
(d) De Minimis Consideration; Sales Tax. Seller and the Company
hereby acknowledge and agree that the value of the non-real estate assets
associated with the Properties to be sold to the Relevant Purchasers is de
minimis and no part of the Consideration is allocable thereto. Although it is
not anticipated that any sales tax shall be due and payable, the Company
agrees that the Company shall pay any and all State of New York sales and/or
use taxes imposed upon or due in connection with the transactions contemplated
hereunder under any applicable laws of New York State. The Company shall file
all necessary tax returns with respect to such taxes and, to the extent
required by applicable law, Seller will join in the execution of any such tax
returns.
3.02. Adjustments to Consideration. The amounts set forth in Schedule
3.01(c) shall each be adjusted as of the Closing to reflect any adjustments
made pursuant to Section 2.01(d), Section 13, and any other adjustments to the
Consideration with respect to any Property (plus or minus) made in accordance
with any other term or provision of this Agreement.
3.03. Intentionally Omitted.
3.04. Intentionally Omitted.
3.05. Intentionally Omitted.
Section 4. The Closing
4.01. Closing. Except as otherwise provided in this Agreement, the sale
of the Properties and the payment of the Consideration shall be consummated at
a closing (the "Closing") that shall take place at 10:00 a.m. on September 30,
2005 (the "Closing Date") (anticipated to be the date that is four (4)
business days after receipt by Australian Trust of that portion of the
aggregate subscription price for the initial public offering of units in the
Australian Trust which is payable on the closing date of said initial public
offering), or such other earlier date as may be agreed to by the parties
hereto, and which closing shall be at the offices of Paul, Hastings, Xxxxxxxx
& Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
location as the parties may agree upon; provided; however, that if (i) the
underwriting agreement (the "Underwriting Agreement") is not executed by the
parties thereto on or before September 30, 2005 ("Underwriting Deadline") or
(ii) the Closing has not occurred on or before October 31, 2005 (the "Closing
Deadline"), either Seller or the Company may elect, at its option, to
terminate this Agreement by giving the other party written notice of the
exercise of such election at any time after the Underwriting Deadline or the
Closing Deadline, as applicable, whereupon this Agreement
-9-
shall terminate, and neither Seller nor the Company shall have any further
liability to the other hereunder, except for the Surviving Obligations.
4.02. Intentionally Omitted.
4.03. Intentionally Omitted.
4.04. Intentionally Omitted.
4.05. Intentionally Omitted.
4.06. Dates; Times; Dollars. For purposes of clarity, the parties hereto
acknowledge and agree that (x) all references to dates in this Agreement shall
be deemed references to the occurrence of such date in New York, New York, (y)
all references to times shall be deemed references to Eastern Standard Time,
and (z) all references to monetary amounts shall be deemed references to
United States Dollars (such amounts to be paid by Federal Funds Wire Transfer
of immediately available funds), except to the extent expressly noted to the
contrary in this Agreement. In addition, unless otherwise specified herein,
all references to the delivery of "true", "correct", and/or "complete" (A)
copies of any documents, materials and other information and (B) lists or
other disclosures (and, in each case, words of similar import), shall be
deemed to be followed by the words "in all material respects".
Section 5. Representations and Warranties
5.01. Seller Representations and Warranties. Owner Operating Partnership
and each of the Subsidiaries, respectively, represent and warrant as to itself
(and not as to each other or any other entity) and as to the Sold Interests
and the other Properties that it sells (and not as to any other Properties) to
the Relevant Purchasers as follows (notwithstanding the pluralization used in
the following representations and warranties, the breadth of the following
representations and warranties shall not be deemed expanded beyond the scope
indicated by the foregoing):
(a) Such party (x) is a partnership, limited partnership or limited
liability company, as applicable, formed, existing and in good standing under
the laws of the state of its formation, (y) is qualified and in good standing
in each of the states in which each of the Properties directly owned by it are
located (to the extent required by law), except where the failure to do so
would not have a material adverse effect on the ability of such Subsidiary to
fulfill its responsibilities under this Agreement and (z) has the requisite
power and authority (i) to enter into this Agreement and all documents
contemplated hereunder to be entered into by such party, and (ii) to perform
the terms and obligations of such party under this Agreement and such other
documents.
(b) Subject to obtaining the Required Consents, the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby on the part of such party have been duly authorized by all
necessary partnership action, limited partnership action or limited liability
company action, as applicable, and no other proceedings or consents on the
part of such party are necessary in order to permit it to consummate the
transactions contemplated hereby.
(c) This Agreement has been duly executed by such party and all of
such party's obligations hereunder are the legal, valid and binding
obligations of such party, enforceable in accordance with the terms of this
Agreement, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws relating to or
affecting creditors' rights generally from time to time in effect and to
general principles of equity (including concepts of
-10-
materiality, reasonableness, good faith and fair dealing), regardless whether
considered in a proceeding in equity or at law.
(d) Such party is not the subject of any bankruptcy, reorganization,
insolvency or similar proceedings on the date hereof. To such party's
knowledge, there are no such proceedings threatened against such party, nor
are any such proceedings contemplated by such party.
(e) Annexed hereto as Schedule 5.01(e)-1 is a true, correct and
complete copy of the rent rolls for the Properties (the "Rent Rolls")
identifying and listing, as of the date thereof, by tenant, security deposits,
square footage, and monthly fixed rent. The parties hereto acknowledge that
such Rent Rolls may not list (and, to the extent that such Rent Rolls do not
list, such party makes no representation or warranty with respect to) (i)
subleases, concessions or license agreements which may have been entered into
by tenants or subtenants (unless such subleases, concessions, or license
agreements were known to such party), (ii) license or concession agreements
that have terms not in excess of sixty (60) days or are terminable by the
landlord without penalty, and (iii) kiosks or pushcarts occupied under
agreements that are terminable by the landlord without penalty upon not more
than one month's notice. Annexed hereto as Schedule 5.01(e)-2 is a true,
correct and complete list of all tenant arrearages for all of the Properties.
(f) Annexed hereto as Schedule 5.01(f) is a true, correct and
complete list of all written leases or occupancy agreements for the Properties
(which together with all existing amendments and modifications thereof are
collectively referred to as "Leases"), and true, correct and complete copies
of each Lease have been delivered or made available to the Company. To such
party's knowledge, each Lease is in full force and effect. Except as set forth
on Schedule 5.01(f), to such party's knowledge, such party has not received
any written notice that such party is in breach or default under any Lease,
which breach or default remains uncured on the date hereof. Except as set
forth on Schedule 5.01(f), such party has not sent any written notice to any
of its respective Tenants occupying more than twenty five thousand (25,000)
rentable square feet ("Major Tenant") within the twelve (12) month period
preceding the date hereof asserting that such Major Tenant is in breach or
default under any Lease to which it is a party, which breach or default
remains uncured on the date hereof.
(g) Schedule 5.01(g) annexed hereto is a true, correct and complete
list of all ground leases under which such party is the ground lessee,
including all existing amendments and modifications thereto (collectively
"Ground Leases") affecting the Properties. To such party's knowledge, all
Ground Leases affecting the Properties are in full force and effect. Such
party has not given, nor has such party received, any written notice of a
material default (which remains uncured) under any Ground Lease.
(h) A true, correct and complete list of all agreements for the
payment of leasing commissions by the party holding the interest of landlord
with respect to the Properties under which such landlord is required to pay
any leasing commissions, brokerage fees or any other fee or charge that is due
and payable on or after the Closing is set forth on Schedule 5.01(h) annexed
hereto (such agreements are collectively referred to as the "Brokerage
Agreements").
(i) Schedule 5.01(i) annexed hereto contains a true, correct and
complete list of all Material Service Contracts. For purposes hereof,
"Material Service Contracts" shall mean all contracts (except for Leases,
Ground Leases and Brokerage Agreements) relating to the management, leasing,
operation, maintenance or repair of the Properties or that would otherwise
affect the use, operation or enjoyment of the Properties (collectively,
"Service Contracts") that are either (i) not terminable upon one month's
notice or less without payment or penalty; or (ii) for which the services
thereunder cost in excess of Seventy-Five Thousand ($75,000) Dollars per annum
with respect to any
-11-
individual Property. To such party's knowledge, all of the Material Service
Contracts are in full force and effect and such party has not received written
notice of any material default thereunder. All Service Contracts (other than
those executed in contravention of the terms thereof) shall be assigned to,
and assumed by, the Relevant Purchasers, as applicable, at the Closing for the
Properties affected by such Service Contracts, to the extent such Service
Contracts are assignable and all necessary consents have been obtained.
(j) Except as set forth on Schedule 5.01(j) annexed hereto, (i)
there are currently no capital improvement projects commenced by such party
or, to such party's actual knowledge, costing more than Two Hundred Fifty
Thousand ($250,000) Dollars in the aggregate at any of the Properties other
than maintenance required in the ordinary course of business, (ii) to such
party's knowledge, there are no pending or threatened condemnation
proceedings, and (iii) except as set forth in the Leases no tenant has any
options, rights of first refusal or rights of first offer to purchase any of
the Properties.
(k) Except as disclosed in the reports listed on Schedule 5.01(k)
annexed hereto and/or any other environmental report or update thereto
obtained by the Company from a third party engineer or consultant prior to the
Closing Date (the "Environmental Reports"), or as otherwise noted on Schedule
5.01(k), to such party's knowledge, such party has not received any written
notification which remains uncured from any Governmental Authority having
jurisdiction over this Properties (A) stating that any hazardous materials,
hazardous substances, contaminants or pollutants have been stored, generated,
disposed of, released or transported at, on or from the Properties in
violation of any environmental laws or regulations applicable to the
Properties, and there is no claim pending against such party with respect to
(x) any such violation applicable to the Properties, or (B) with respect to
any corrective or remedial action or cleanup relating to any of the
Properties, whether currently on-going or awaiting final governmental
approval, or (y) any further action letters relating to any of the Properties.
(l) All casualty insurance policies presently in effect with respect
to the Properties are in sufficient amounts and are on commercially reasonable
terms to provide for the "replacement costs" of each of the Properties and the
premiums for all such insurance policies have been paid in full through the
date hereof. Such party has received no written notice from any insurance
carrier that, if not corrected, would result in a termination of insurance
coverage or increase in the present cost thereof. To such party's knowledge,
all insurance policies presently in effect with respect to the Properties are
in full force and effect and either the policies or proceeds thereunder are
fully transferable to the Company.
(m) Such party does not have (i) any employees located at the
Properties or employees located elsewhere whose duties are primarily with
respect to the Properties or (ii) any pension plan liabilities, funded or
unfunded, or employee benefit plan(s), programs, agreements, or arrangements
of any kind pertaining to the Properties or any employees of such party
located at the Properties.
(n) Such party is not a "foreign person" as defined in the Internal
Revenue Code Section 1445, as amended (the "Code Withholding Section").
(o) Except as set forth on Schedule 5.01(o) annexed hereto, there is
no litigation, action, claim, suit, investigation, arbitration or other
adversarial contest or proceeding pending or, to such party's knowledge,
threatened, against such party with respect to any of the Properties or
relating to any of the Ground Leases or the Leases which would in the
aggregate have a material adverse affect on the Properties taken as a whole
(other than claims for personal injury, bodily injury or property
-12-
damage which are reasonably believed by such party to be covered by such
party's existing insurance policies).
(p) Except as set forth in Schedule 5.01(p), there are no
outstanding agreements with attorneys or consultants with respect to tax bills
for a Property that will bind the Relevant Purchasers or the Properties after
the first full tax year after the Closing.
(q) Intentionally Omitted.
(r) Intentionally Omitted.
(s) Intentionally Omitted.
(t) Intentionally Omitted.
(u) Intentionally Omitted.
(v) Such party has prepared and timely filed all tax returns
required to be filed by it on or before the date hereof with respect to the
Properties, which tax returns are true, correct and complete in all material
respects. Such party has paid or made provision for the payment of all taxes
with respect to the ownership and operation of the Properties that are due or
claimed to be due from it on or before the date hereof by any governmental
taxing authority. No federal, state, local or foreign taxing authority has
given written notice to such party of any tax deficiency, lien, interest or
penalty or other assessment against such party which has not been paid and no
audit or written inquiry has been commenced or, to the best of such party's
knowledge, threatened by any federal, state, local or foreign tax authority
relating to such party that may be expected to result in a tax deficiency,
lien, interest or other assessment against the assets of such party. Seller
shall pay any and all taxes imposed on the Company based on Seller's failure
to comply with any bulk sales law.
(w) Schedule 7.07 is a true, correct and complete list of all
Required Consents.
(x) Intentionally Omitted.
5.02. Relevant Purchasers Representations and Warranties. The Company
represents and warrants to Seller as to itself and as to and on behalf of all
of the other Relevant Purchasers, if applicable, as follows:
(a) Such party is (a) a limited liability company, organized,
existing and in good standing under the laws of the State of Delaware and has
the requisite power and authority to enter into and perform the terms of this
Agreement and (b) has, since its formation or its acquisition (directly or
indirectly) by the REIT, been classified for federal income tax purposes as a
partnership or disregarded entity and not as a corporation or an association
taxable as a corporation, or a "publicly traded partnership" within the
meaning of Section 7704(b) of the Code.
(b) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby on the part of such party
has been duly authorized by all necessary limited liability company action and
no other proceedings on the part of such party are necessary in order to
permit it to consummate the transactions contemplated hereby.
-13-
(c) This Agreement has been duly executed by such party and all of
such party's obligations hereunder are the legal, valid and binding
obligations of such party, enforceable in accordance with the terms of this
Agreement, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws relating to or
affecting creditors' rights generally from time to time in effect and to
general principles of equity (including concepts of materiality,
reasonableness, good faith and fair dealing), regardless whether considered in
a proceeding in equity or at law.
(d) Such party's performance of its duties under this Agreement will
not conflict with, result in a breach of or be a default under, or be
adversely affected by, any existing agreements, instruments, judgments,
permits, orders, rules, regulations or decrees to which such party is a party
or by which it or its assets are bound.
(e) Such party is not the subject of any bankruptcy, reorganization,
insolvency or similar proceedings.
(f) Intentionally Omitted.
5.03. REIT Representations and Warranties. The REIT represents and
warrants to Seller as follows:
(a) The REIT is a corporation, organized, existing and in good
standing under the laws of the State of Maryland and has the requisite power
and authority to enter into and perform the terms of this Agreement.
(b) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby on the part of the REIT
have been duly authorized by all necessary limited liability company action
and no other proceedings on the part of the REIT are necessary in order to
permit it to consummate the transactions contemplated hereby.
(c) This Agreement has been duly executed by the REIT and all of the
REIT's obligations hereunder are the legal, valid and binding obligations of
the REIT, enforceable in accordance with the terms of this Agreement, subject
to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws relating to or affecting creditors' rights
generally from time to time in effect and to general principles of equity
(including concepts of materiality, reasonableness, good faith and fair
dealing), regardless whether considered in a proceeding in equity or at law.
(d) The REIT's performance of its duties under this Agreement will
not conflict with, result in a breach of or be a default under, or be
adversely affected by, any existing agreements, instruments, judgments,
permits, orders, rules, regulations or decrees to which the REIT is a party or
by which it or its assets are bound.
(e) The REIT is not the subject of any bankruptcy, reorganization,
insolvency or similar proceedings.
(f) The REIT is in compliance with the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 , and the regulations promulgated thereunder (the
"Patriot Act"), and comparable regulations. None of the funds contributed to
the REIT have or will be derived from illegal activities or made in
contravention of any United States anti-money laundering laws or regulations.
Neither the REIT nor any of its beneficial
-14-
owners (i) is or will be subject to United States trade sanctions or included
on any United States government published lists of terrorists or terrorist
organizations and (ii) is a "foreign shell bank" as defined under the Patriot
Act.
5.04. (a) Survival of Seller Representations and Warranties; Modification
Thereof. The representations and warranties in this Agreement by Seller are
made as of the date hereof, and shall be remade by Seller as of the date of
the Closing (as applicable to the Properties, and/or the SPE Entities, as
applicable, at the Closing) with the same force and effect as if in fact
specifically remade at that time. If facts or circumstances arising after the
date hereof render Seller unable to remake a representation or warranty in any
material respect as of the Closing, and Seller specifically so advises the
Company, in writing and prior to the Closing (including, without limitation,
by amendment of the schedules hereto), of the particular circumstances
rendering any representation or warranty untrue in any material respect, or if
the same is disclosed in writing in an update to any Title Commitment, Search
or third party report commissioned by the Company in connection with its
review of the Properties, the failure to remake such representation and
warranty shall not constitute a default hereunder by Seller, except (in each
case) in the event or to the extent that the untruth of such representation or
warranty is the result of any act or omission of Seller and/or its Agents in
breach or violation of the terms of this Agreement; notwithstanding the
foregoing, the truth and accuracy of all representations and warranties made
by Seller in this Agreement (required to be true in all material respects as
of the Closing Date pursuant to Section 10.01(b)), as modified to reflect the
operation of the Properties from and after the date hereof in the ordinary
course (including, without limitation, leasing activities with respect
thereto) or as otherwise permitted in accordance with the terms of this
Agreement, shall be a condition precedent to the Company's obligation
hereunder at the Closing. Notwithstanding the foregoing, the parties
acknowledge that if an item is (a) disclosed only on one schedule such
disclosure shall be deemed to be disclosed on any other relevant schedule to
the extent such item is relevant to the representation or warranty in
question, and to the extent such item is inconsistent with such other
schedule, the disclosure of such item on any schedule shall be deemed to
modify the incorrect representation and (b) disclosed in any third party
report delivered in writing by Seller to the Company, such disclosure shall be
deemed to modify the relevant representation and warranty. The representations
and warranties contained in Subparagraphs 5.01(a), (b) and (c) shall survive
the Closing, and the representations and warranties in Subparagraph 5.01(w)
shall survive the Closing for a period equal to the applicable statute of
limitations plus three months. Except as provided in the immediately preceding
sentence and in the next sentence, all other representations and warranties
made in this Agreement by Seller shall survive the Closing for twelve (12)
months from the Closing (the "Rep Survival Period") and shall not merge into
any instrument of conveyance delivered at the Closing. "Seller's Knowledge"
shall be defined for purposes of this Agreement as the current actual (not
constructive, imputed or implied) knowledge, without any duty of inquiry or
investigation, of the Seller. The provisions of this Section 5.04(a) shall
survive the Closing.
(b) Survival of Company and REIT Representations and Warranties. The
representations and warranties in this Agreement by the Company and the REIT
are made as of the date hereof and shall be remade by the Company and the REIT
and as of the Closing. The representations and warranties in Subparagraphs
5.02(a), (b), (c) and (d) and Subparagraphs 5.03(a), (b), (c) and (d) shall
survive the Closing. All other representations and warranties of the Company
and the REIT, if any, shall survive the Closing for the Rep Survival Period
and shall not merge into any instrument of conveyance delivered at the
Closing. The provisions of this Section 5.04(b) shall survive the Closing.
5.05. (a) Indemnification by Seller; Cap; Basket. Notwithstanding
anything to the contrary in this Agreement, but subject to (i) the immediately
succeeding sentence, (ii) Section 2.01(d), and (iii) the Cap (as hereinafter
defined), Seller agrees to and does hereby indemnify, defend and hold harmless
the Company, the SPE Entities and the REIT, their respective constituents and
Agents, and their successors and assigns, from and against any and all
liabilities, claims, demands, suits, administrative
-15-
proceedings, causes of action, costs, damages, personal injuries and property
damages, losses and expenses (including, without limitation, reasonable
attorneys' or other consultants' fees and disbursements, but excluding
consequential, punitive, special and other indirect damages), both known and
unknown, present and future, at law or in equity (collectively, "Losses")
arising out of, by virtue of, or related to, a breach or inaccuracy of any
representation, warranty or covenant of Seller contained in Section 5.01 or
Section 15.01. Notwithstanding the foregoing, no claim for a breach or
inaccuracy of any representation, warranty or covenant of Seller contained in
Section 5.01 or 15.01 shall be actionable or payable (x) unless the valid
claims for all such breaches and inaccuracies collectively aggregate more than
Five Hundred Thousand Dollars ($500,000) (the "Basket") with respect to all
Properties, in which event the amount of all claims in excess of such $500,000
threshold shall be actionable, and (y) unless written notice containing a
description of the specific nature of such breach or inaccuracy shall have
been given by the Company to Seller prior to the expiration of the Rep
Survival Period. The Company, the SPE Entities and the REIT agree to first
seek recovery (using commercially reasonable efforts to do so) under any
insurance polices, Service Contracts, Leases, Title Policies, Ground Lease or
any other agreement for which such recovery is available prior to seeking
recovery from Seller, and Seller shall not be liable to the Company, the SPE
Entities or the REIT to the extent such party's claim is satisfied from such
insurance policies, Service Contracts, Leases or Title Policies, Ground Leases
or any other agreement for which such recovery is available. Notwithstanding
anything contained herein to the contrary, in no event shall Seller's
aggregate liability to the Company, the SPE Entities or the REIT for breach or
inaccuracy of any representation or warranty or covenant of Seller in this
Agreement or as remade as of any Closing Date pursuant to Section 5.04, or in
any other way related to this Agreement and the transactions contemplated
hereby, exceed the amount of the Cap. As used in this Section 5.05, the term
"Cap" shall mean the total aggregate amount of Ten Million and 00/100 Dollars
($10,000,000.00). Notwithstanding anything to the contrary contained herein,
no claim for a breach or inaccuracy of any representation or warranty or
covenant of Seller shall be actionable or payable if the breach or inaccuracy
in question results from or is based on (i) a condition, state of facts or
other matter expressly disclosed in any Review Materials as of the date hereof
or in any Schedule attached to this Agreement, or (ii) if the inaccuracy of,
or failure to make, such representation or warranty as of the Closing does not
constitute a breach, default or violation pursuant to the second sentence of
Section 5.04(a). Notwithstanding anything to the contrary in this Section
5.05(a), the Cap, the Basket and the Rep Survival Period shall not be
applicable to Losses arising from or in connection with the matters described
on Schedule 5.05(a) of this Agreement (the "Special Indemnification Matters"),
it being agreed that Seller shall and does hereby indemnify, defend and hold
harmless the Company, the SPE Entities and the REIT, their respective
constituents and Agents, and their successors and assigns, from and against
any Losses arising out of, by virtue of, or related to, (x) a breach or
inaccuracy of any representation, warranty or covenant of Seller relating to
the Special Indemnification Matters or (y) otherwise relating to the Special
Indemnification Matters; provided, however, Seller shall only be responsible
for Losses in excess of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) arising out of or related to the Special Indemnification
Matters.
(b) Indemnification by Company; Cap; Basket. Notwithstanding
anything to the contrary in this Agreement, but subject to the immediately
succeeding sentence and to the last sentence of this Section 5.05(b), the
Company and the REIT agree to and do hereby indemnify, defend and hold
harmless Seller, its partners, members, shareholders, officers and directors,
and their respective Agents, Affiliates and each of their successors and
assigns, from and against any Losses arising out of, by virtue of, or related
to (i) a breach or inaccuracy of any representation, warranty or covenant of
the REIT or the Company contained in Section 5.02, 5.03 or 16.01 hereof, or
(ii) a release, emission, discharge or disposal of any reportable quantities
of hazardous materials, hazardous substances, contaminants or pollutants at or
from any of the Properties in violation of any U.S. Federal or state
environmental laws or regulations applicable to the Properties to the extent
such violation occurs subsequent to the Closing Date if such release,
emission, discharge or disposal was caused by or at the direction of the
Company or the
-16-
REIT. Seller agrees (and agrees to cause the applicable Relevant Purchaser) to
first seek recovery (using commercially reasonable efforts to do so) under any
insurance policies, Service Contracts, Leases, Title Policies, Ground Leases
or any other agreement for which such recovery is available prior to seeking
recovery from the Company or the REIT, and the Company and the REIT shall not
be liable to Seller to the extent the Seller's claim is satisfied from such
insurance policies, Service Contracts, Leases, Title Policies, Ground Leases
or any other agreement for which such recovery is available.
(c) Exculpation. Notwithstanding anything to the contrary in this
Agreement, but subject to the terms and provisions of Section 5.05(b), neither
party hereto, nor any member or any general or limited partner of such party,
whether direct or indirect, nor any direct or indirect member or any general
or limited partner in such party, nor any disclosed or undisclosed officers,
shareholders, members, principals, directors, employees, partners, servants,
Agents or Affiliates of either party and each of their successors or permitted
assigns, shall have any personal liability with respect to any provisions of
this Agreement and, if after the Closing Date any party is in breach or
default with respect to its respective obligations or otherwise, the other
party hereto shall look solely to such breaching or defaulting party's
interest in and to the proceeds from the sale of the Properties (subject, in
each case, to Section 5.05(a) of this Agreement) for the satisfaction of
remedies hereunder.
(d) Procedures Regarding Indemnification. If a claim or demand for
indemnification is based upon an asserted liability or obligation to a person
or entity not a party to this Agreement nor a permitted successor or assign (a
"Third Party Claim"), then the indemnified party shall give prompt (within the
time required for the filing of any responsive pleading in the case of
litigation) written notice of any such claim to the indemnifying party. The
indemnifying party may defend or settle such claims or actions with counsel
chosen and paid by it by giving written notice (the "Election to Defend") to
the indemnified party within thirty (30) days after the date such notice of a
Third Party Claim is received by the indemnifying party; provided, however,
that the indemnifying party may not settle such claims or action without the
consent of the other party to this Agreement, which consent shall not be
unreasonably withheld, if the indemnified party will not be fully released in
connection therewith. Such notice and opportunity shall be conditions
precedent to any liability of the indemnifying party under this Agreement.
Notwithstanding anything to the contrary in this Agreement, a failure to
provide or delay in providing any required notice shall not prejudice any
right to indemnification under this Agreement except to the extent that the
indemnifying party is prejudiced by such failure. In no event shall the
provisions of this subsection reduce or lessen the obligations of the
indemnifying party under this subsection, if prior to the expiration of such
thirty (30) day notice period, the indemnified party shall respond to a Third
Party Claim if such action is reasonably required to minimize damages or avoid
a forfeiture or penalty or because of a requirement imposed by law. If the
indemnifying party does not duly give the Election to Defend as provided
above, then it shall be deemed to have irrevocably waived its right to defend
or settle such claims, but it shall have the right, at its expense, to attend,
but not otherwise participate in, proceedings with such third parties; and if
the indemnifying party does duly give the Election to Defend, then the
indemnified party shall have the right at its expense, to attend, but not
otherwise participate in, such proceedings. The indemnified party (or its
designee) shall have the right, to the extent permitted by law or regulation,
by written notice given to the indemnifying party at any time, to assume
exclusive control of the defense of any claim insofar as the indemnified party
is concerned, but, subject to the immediately succeeding sentence, the giving
of such notice shall result in the indemnifying party being relieved of its
obligations in respect of such claim under this Agreement. If at any time
during the pendency of a claim the indemnifying party shall disaffirm its
responsibility for such claim, the indemnified party (or its designee) shall
have the right, but not the obligation, to assume the exclusive control of the
defense and settlement of such claim insofar as the indemnified party is
concerned, and all costs and expenses of such defense shall be paid by the
indemnifying party if such claim is within the scope of the indemnification
obligations of the indemnifying party under this Agreement.
-17-
Section 6. Acknowledgments of the Company
6.01. No Prior Representations or Warranties. The Company acknowledges
that except as expressly set forth in this Agreement, neither Seller nor any
agent or representative or purported agent or representative of Seller has
made, and Seller is not liable for or bound in any manner by, any express or
implied warranties, guaranties, promises, statements, inducements,
representations or information (including, without limitation, any information
set forth in offering materials heretofore furnished to the Company)
pertaining to the Properties or any part thereof, the physical condition
thereof, environmental matters, income, expenses or operation thereof or the
uses which can be lawfully made of the same under applicable zoning or other
laws or any other matter or thing with respect thereto, including, without
limitation, any existing or prospective leases, operating agreements or other
agreements. Without limiting the foregoing, the Company acknowledges and
agrees that, except as expressly set forth in this Agreement or any other
agreement or document entered into by the parties in connection with the
transaction contemplated hereby, Seller is not liable for or bound by (and the
Company has not relied upon) any verbal or written statements,
representations, real estate brokers' "set-ups" or offering materials or any
other information respecting the Properties furnished by Seller or any broker,
employee, agent, consultant or other person representing or purportedly
representing Seller. Accordingly, Seller is entering into this Agreement based
upon the Company's assurances that the Company has a well-informed opinion of
the value of the Properties. The Company is not relying upon any
representations made by Seller regarding market conditions which influence the
Properties such as competitive position relative to its existing and potential
future competitors, market rental rates achievable at the Properties, vacancy
assumptions, credit loss and downtime reserves, project growth rates (if any)
in rents or expenses, impact of the sale on assessed values, tenant work and
leasing fee levels necessary to generate estimated market rents, tenant
retention ratios and the need for an amount of any "capital reserves". The
provisions of this Section 6.01 shall survive the Closing.
6.02. As-Is. The Company acknowledges that it has, prior to the date
hereof, inspected the Properties, the physical and environmental condition and
the uses thereof, and the fixtures, equipment and personal property included
in this sale and acquisition to its satisfaction, and the Company has
independently investigated, analyzed and appraised the value and profitability
thereof, the creditworthiness of tenants, and the presence of hazardous
materials, if any, in or on the Properties, that they have received or had
made available to them by Seller, on or prior to the date hereof, copies of
and/or has reviewed the Review Materials and other agreements and documents
referred to or contemplated herein, that they are thoroughly acquainted with
all of the foregoing and that the Company, in entering into this Agreement,
will rely exclusively upon their own independent investigations, analyses,
studies and appraisals and not upon any information provided to the Company by
or on behalf of Seller with respect thereto. AT THE CLOSING, THE COMPANY
AGREES TO ACCEPT THE PROPERTIES SOLD TO THE COMPANY AND/OR THE SPE ENTITIES,
AS APPLICABLE, AT SUCH CLOSING IN "AS IS, WHERE IS" CONDITION, EXCEPT FOR
SELLER'S REPRESENTATIONS, WARRANTIES OR COVENANTS EXPRESSLY CONTAINED IN THIS
AGREEMENT, WITH ALL FAULTS AS OF THE DATE HEREOF AND SPECIFICALLY AND WITHOUT
ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER EXPRESS OR IMPLIED AS TO
(I) THE CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, OR MERCHANTABILITY OF
SUCH PROPERTIES, (II) THE STRUCTURAL INTEGRITY OF SUCH PROPERTIES, (III) THE
ACCURACY OR COMPLETENESS OF ANY INFORMATION, DATA, MATERIALS OR CONCLUSIONS
CONTAINED IN ANY INFORMATION PROVIDED TO THE COMPANY FROM ANY SOURCE
WHATSOEVER, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, (IV) ENVIRONMENTAL
MATTERS PERTAINING TO SUCH PROPERTIES EXCEPT AS SET FORTH HEREIN, OR (V) ANY
OTHER WARRANTY OF ANY KIND, NATURE OR TYPE WHATSOEVER FROM SELLER, EXCEPT AS
MAY BE EXPRESSLY PROVIDED HEREIN, REASONABLE WEAR AND TEAR AND DAMAGE BY FIRE
OR OTHER CASUALTY
-18-
(SUBJECT TO THE PROVISIONS OF SECTION 8.01) BETWEEN THE DATE HEREOF AND THE
CLOSING DATE EXCEPTED, AND THE COMPANY SHALL ASSUME (SUBJECT TO THE PROVISIONS
HEREOF AND APPLICABLE LAW) THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT
LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS MAY NOT HAVE BEEN REVEALED BY THE COMPANY'S INVESTIGATIONS.
6.03. Environmental Matters. With respect to all matters disclosed in the
Environmental Reports, Seller and the Company agree that the Company shall not
have the right to bring any claim against Seller for any environmental matters
or violation of any environmental laws with respect to the matters disclosed
in such Environmental Report and the Company waives all the rights (at law, in
equity or otherwise) to implead Seller in any action brought with respect to
such environmental matters and waives all rights of contribution against
Seller in connection therewith. The provisions of this Section 6.03 shall
survive the Closing indefinitely.
Section 7. Seller's Obligations as to the Properties
7.01. Operation of Properties Prior to Closing. Prior to the Closing for
each respective Property, Seller agrees that it shall maintain, repair, lease,
manage and operate the Properties in substantially the same manner as Seller
has operated, managed, leased, maintained and repaired the Properties prior to
the date of this Agreement. As it relates to each Property, from and after the
date hereof and through the Closing Date for each such Property, or earlier
termination of this Agreement, Seller shall not (a) remove any material
assets, fixtures, equipment or personal property therefrom (not including any
of the foregoing items to the extent owned by tenants or other occupants of
the Properties) unless the same are replaced with similar items of at least
equal quality prior to the Closing, (b) modify or amend in any material
respect adverse to the landlord, extend, renew or terminate any material
Service Contract, Brokerage Agreement or existing property management
contracts (except as set forth in Section 7.08) or enter into any new Service
Contract (except as set forth in Section 7.02), Brokerage Agreement or
existing property management contracts, without the prior consent of the
Company, which consent shall not be unreasonably withheld, conditioned or
delayed, (c) accept rent from any tenant more than one (1) month in advance
(except as otherwise consistent with past practice), and (d) amend any Lease
in any material respect adverse to the landlord thereunder or enter into any
new or renewal lease, license or other agreement for other than customary and
market terms affecting the ownership or operation of all or any portion of any
Property, without the prior consent of the Company, which consent shall not be
unreasonably withheld, conditioned or delayed; provided, however, Seller may
amend any Lease, or execute any new or renewal lease, license or other
agreement to the extent consistent with (or more favorable to the landlord
than) the DYNA Models without the prior consent of the Company. Any Lease or
Service Contract submitted in writing by Seller to the Company for approval
and not objected to in a writing given by the Company to Seller within five
(5) Business Days after the Company's receipt thereof shall be deemed approved
by the Company. For purposes of this Agreement, the term "Business Days" shall
mean any day other than a Saturday, Sunday and bank holiday in New York State;
if any date on which a party hereunder is required to perform or pay any
amount is not a Business Day, then such date shall be deemed to occur on the
next immediately succeeding Business Day.
7.02. Certain Lease/Service Contract Actions. Notwithstanding anything to
the contrary in Section 7.01, prior to the Closing, Seller may, without the
Company's prior consent, terminate or modify any Lease or Service Contract for
a Property to be sold to the Company at such Closing by reason of a material
default by the tenant (other than a Major Tenant) or service provider, as
applicable, beyond the expiration of any applicable grace or cure period in
the payment of rent or Additional Rent, the performance of any other material
obligation or the provision of services; provided, however, that such
termination or modification is in accordance with the terms of such agreement
or otherwise
-19-
permissible pursuant to this Agreement. In addition, prior to the Closing,
Seller may, with the Company's prior consent, which consent may be withheld in
the Company's sole discretion, terminate or modify any Lease with a Major
Tenant by reason of a material default by such Major Tenant beyond the
expiration of any applicable grace or cure period in the payment of rent or
additional rent and/or the performance of any other material obligation. Any
such termination by Seller prior to such Closing shall not affect the
obligations of the Company under this Agreement in any manner or entitle the
Company to an abatement of or credit against the Consideration or give rise to
any other claim on the part of the Company.
7.03. Certain Prohibited Actions. During the term of this Agreement,
subject to any expressly permissive provisions of this Agreement to the
contrary (including Section 18 of this Agreement), Seller shall not (i) unless
the Property has been substituted for another property not otherwise included
in the Properties, as applicable, and such Property is no longer intended by
the parties to be transferred to a Relevant Purchaser pursuant to this
Agreement, (A) enter into any written agreement for the sale of such Property
with any other party, (B) transfer, mortgage or pledge any interest in any
such Property, except as expressly provided for herein with respect to Leases,
(C) contract for or commence any material construction, capital improvement or
deferred maintenance at any such Property, unless required to do so hereunder,
under the Leases, if requested by any tenant at such tenant's expense, as
required by any law or as a result of an emergency (provided Seller shall
provide notice thereof to the Company as soon as is practical), (D) without
the prior written consent of the Company, not to be unreasonably withheld,
conditioned or delayed, institute prior to the Closing Date, any proceeding or
application for a reduction in the real estate tax assessment of the Property
or any other relief for any tax year unless such taxes are being contested in
good faith and either the taxes being so contested have been paid in full if
so required by the applicable taxing authority or adequate reserves for the
payment of such taxes have been established by Seller which in such instance
shall not require the Company's consent, and if Seller receives any payment of
a rebate of taxes in its favor, Seller will remit to any tenant of the
Properties all or any portion of such rebated sums which is owed to such
tenant, or (ii) enter into any employment contract, employee benefit plan,
program, agreement or arrangement of any kind, union contract or pension plan
which will be binding on the Company upon any Closing.
7.04. Maintenance of Insurance. Seller shall maintain in full force and
effect until each Closing all material insurance policies applicable to the
Properties or any replacements thereof, and shall renew those expiring before
the Closing for no more than one year without the Company's prior written
consent, such that at all times from the date hereof through the Closing Date
there shall be no lapse in such insurance coverage as existed on the date
hereof.
7.05. Required Tenant Estoppels; Seller Estoppel. Prior to (but in no
event earlier than ninety (90) days prior to) the Closing Seller shall provide
to the Company estoppel certificates in the form of Exhibit E annexed hereto
("Tenant Estoppels") from such tenants representing at least seventy (70%)
percent of total leased rentable square footage under all of the Leases in
effect as of the date hereof with respect to the Properties and the Closing.
Notwithstanding the foregoing, if Seller is unable to obtain the Tenant
Estoppels with respect to any Properties, Seller may deliver to the Company at
the Closing substitute estoppel certificates signed by Seller (each a "Seller
Estoppel") representing up to fifteen (15%) percent of the total leased
rentable square footage under all Leases in effect as of the date hereof and
the Company shall accept in lieu of such Tenant Estoppel signed by the tenants
such Seller Estoppels. No Substitute Ground Lessor Estoppel (as defined
hereinafter) shall be counted against the aforementioned fifteen percent (15%)
threshold. In the event that a tenant under a Lease subsequently provides the
Company with a Tenant Estoppel with respect to a Lease for which Seller has
given the Company a Seller Estoppel, the Company shall retain and rely on such
Tenant Estoppel, and the Seller Estoppel given for such Lease will be of no
further force and effect from and after the date on which such Tenant Estoppel
is delivered to the Company, but only to the extent that such Tenant Estoppel
confirms the pertinent
-20-
statements made in such Seller Estoppel. Prior to (but in no event dated
earlier than ninety (90) days prior to the Closing Date). Notwithstanding
anything to the contrary in this Agreement, Seller's obligations and
liabilities under this Agreement with respect to any Seller Estoppel shall not
be subject to the Cap, the Basket or the Representation Survival Period.
7.06. Landlord Estoppels. Prior to (but in no event dated earlier than
ninety (90) days prior to the Closing Date) and as a condition to the Closing
with respect to such Property, Seller shall use its commercially reasonable
efforts to provide to the Company additional estoppel certificates from each
lessor under a Ground Lease in the form of Exhibit F annexed hereto ("Landlord
Estoppel"), provided, that, Seller shall be deemed to have complied with its
obligations under this Section 7.06 to deliver any estoppel certificate or
document so required hereunder from a particular ground lessor, to the extent
that such ground lessor delivers such estoppel certificate or document in the
form prescribed by the applicable Ground Lease. If, notwithstanding such
commercially reasonable efforts, Seller is unable to obtain any Landlord
Estoppels in respect of any Ground Leases, Seller shall be required to deliver
at the Closing a substitute estoppel certificate signed by Seller (each a
"Substitute Ground Lessor Estoppel"). Notwithstanding anything to the contrary
in this Agreement, Seller's obligations and liabilities under this Agreement
with respect to any Substitute Ground Lessor Estoppel shall not be subject to
the Cap, the Basket or the Representation Survival Period.
7.07. Required Consents. Prior to and as a condition to the Closing,
Seller shall deliver to the Company any consents required to consummate the
transactions contemplated by this Agreement, which such consents are listed on
Schedule 7.07 annexed hereto (the "Required Consents").
7.08. Termination of Existing Property Management Agreements. Seller
shall terminate, at Seller's sole cost and expense, in writing all existing
property management contracts for the Properties on or prior to the Closing.
7.09. Intentionally Omitted.
7.10. Intentionally Omitted.
Section 8. Destruction, Damage or Condemnation
8.01. (a) Casualty and Condemnation. If, at any time, an amount of the
Properties greater than or equal to (as reasonably determined by Contributor)
fifteen percent (15%) or more of the Total Consideration of the Properties to
be contributed to the Company is damaged or destroyed by fire or other
casualty ("Casualty") or is taken by eminent domain (or is the subject of a
pending condemnation proceeding that has not been reduced to judgment)
("Condemnation"), on an aggregate basis, then Contributor shall notify the
Company of such fact and, subject to Section 8.01(b) of this Agreement, the
Company shall have the right to terminate this Agreement with respect to all
remaining Tranches by giving written notice to Contributor, provided, however,
that the Company shall be deemed to have elected to proceed with the
acquisition if the Company fails to notify Contributor of its election within
ten (10) Business Days of receipt of such notice. In the case of Casualty, if
the Company elects, or is deemed to have elected, to proceed with the
acquisition of the Property or Properties, then the Company shall accept title
to the Property or Properties in their existing condition, in which event
Contributor shall, subject to the requirements of any financing encumbering
the Property or Properties, assign to the Company, at the applicable Closing,
all of Contributor's right, title and interest in and to the insurance
proceeds awarded or to be awarded to Contributor as the result of such damage
or destruction to such Properties and the Contributed Equity Value or Cash
Portion of Sales Price, as applicable, shall be reduced by the amount of any
deductible in connection with the subject casualty. In the case of
Condemnation, if the Company elects, or is deemed to have elected, to proceed
with the acquisition of the
-21-
Property or Properties (other than the portion so taken), then the Company
shall accept title to the Property or Properties in their existing condition,
and Contributor shall, subject to the requirements of any financing
encumbering the Property or Properties, assign and turn over to the Company at
the applicable Closing, and the Company shall be entitled to receive and keep,
all amounts awarded or to be awarded as the result of the taking of such
Properties; it being understood and agreed that the Contributed Equity Value
or the Cash Portion of Sales Price of the Property or Properties to be
transferred to the Company pursuant to this Section 8.01(a), as applicable,
shall not be reduced by the amounts so awarded or anticipated to be so
awarded. Contributor shall not settle or compromise any insurance claims or
legal actions relating thereto without the Company's prior consent.
(b) Substitute Properties In Connection with Casualty and
Condemnation. Notwithstanding anything to the contrary contained herein, in
the event that a Casualty or Condemnation occurs, and such Casualty or
Condemnation would otherwise permit the Company or the other Relevant
Contributees to exercise termination rights in accordance with the provisions
of Section 8.01(a) of this Agreement, such event shall constitute a "CC
Substitution Event".
Section 9. Additional Covenants of Seller
9.01. Access. Without limiting the effect of the Company's waiver of a
due diligence period, Seller covenants that between the date of this Agreement
and the Closing, subject to the limitations set forth in Section 1.04, Seller
shall allow the Company or the Company's agents, representatives or employees
reasonable access to the Properties, the Leases and other documents required
to be delivered under this Agreement upon reasonable prior notice at
reasonable times during normal business hours; provided, however, that no
drilling, test borings or other material disturbance of any Property may be
conducted by the Company for review of soils, compaction, environmental,
structural or other conditions without the prior written consent of Seller.
Seller (or its designee) shall have the right, but not the obligation, to
accompany the Company or its Agents during such access to the Properties. The
Company shall exercise reasonable diligence not to disturb the use or
occupancy or the conduct of tenant, occupant or business at any Property. The
Company hereby agrees to indemnify, defend and hold harmless the Seller and
its Affiliates (and each of their shareholders, members, officers, directors,
employees, affiliates, agents, successors and permitted assigns) from all
loss, cost, expense, claims, damages or liabilities resulting from any such
entry or inspections performed by the Company or its agents or
representatives, including, without limitation, any mechanic's or
materialmen's liens relating to the activities of such parties; such indemnity
shall survive the termination of this Agreement.
Section 10. Conditions Precedent to Closing
10.01. Conditions Precedent to Company Obligations. Subject to Section
10.03, the Relevant Purchasers' obligations to effectuate the Closing on the
Closing Date are subject to the satisfaction of the following conditions
precedent (collectively, the "Seller Closing Conditions") on or before the
Closing (unless waived in whole or in part by the Relevant Purchasers in
writing):
(a) Delivery of Closing Documents. Seller shall have delivered to or
for the benefit of the Relevant Purchasers, on or before the Closing Date, all
of the documents (including, without limitation, all Tenant Estoppels,
Contributor Estoppels, Landlord Estoppels and Substitute Landlord Estoppels
required under this Agreement), other information and payments, if any,
required of Seller in connection with the Closing pursuant to Section 11.
(b) Representations and Warranties. All of Seller's representations
and warranties made in this Agreement shall be true and correct in all
material respects as of the date hereof and as of the Closing Date, subject in
each case to modification of such representations and warranties
-22-
pursuant to Section 5.05 of this Agreement and as may be otherwise expressly
permitted by the terms of this Agreement. In addition, Seller shall have
performed all of its covenants and other obligations hereunder in all material
respects.
(c) Required Consents. All Required Consents to be obtained or given
pursuant to the terms of any Lease or other material agreement affecting the
Properties in connection with the consummation of the transaction contemplated
by this Agreement in respect of the Closing shall have been obtained or given
by Seller.
(d) Brokerage Obligations. All obligations of Seller under the
Brokerage Agreements with respect to the current, unexpired term of Leases
existing as of the date hereof relating to the Properties shall have been paid
or credited with respect to the Closing for the account of the Company against
the applicable Consideration, except for any obligations and commissions
becoming due and payable following the date of this Agreement and (x)
resulting from the exercise of renewal or expansion options by tenants or (y)
arising in connection with any new leases signed after the date hereof in
accordance with the terms of this Agreement.
(e) Other Material Conditions Precedent. Seller shall have satisfied
or caused to be satisfied all other conditions precedent and covenants with
respect to the Closing set forth in this Agreement in all material respects or
any such unsatisfied condition or covenant shall have been waived in writing
by the Relevant Purchasers.
(f) Owner's Title Policies and Lender Policies. The Title Company
shall be prepared to issue the Title Policies, including, without limitation,
all endorsements (including, without limitation, non-imputation endorsements)
and other affirmative coverage required by any lender or reasonably required
by the Company for all of the Properties, in the name of the Relevant
Purchasers, subject only to the Permitted Exceptions, in each case, subject to
the terms and conditions set forth in this Agreement.
(g) Termination of Management Contracts. All management contracts
affecting the Properties shall have been terminated, effective as of the
Closing, without liability to the Company.
(h) Closing of Relevant Underwriting Transactions. The transactions
under the Underwriting Agreement applicable to the Closing shall have closed.
(i) Listing of Australian Trust. All conditions and requirements for
the listing of Australian Trust on the Australian Stock Exchange and quotation
of its securities have been satisfied (other than administrative requirements
and acquisition of the Properties).
(j) Intentionally Omitted.
(k) Intentionally Omitted.
10.02. Conditions Precedent to Seller Obligations. The Seller's
obligations to effectuate the Closing on the Closing Date are subject to the
satisfaction of the following conditions precedent on or before the Closing
(unless waived in whole or in part by the Seller in writing):
(a) Delivery of Closing Documents and Payments. The Company shall
have delivered to or for the benefit of the Seller, on or before the Closing
Date, all of the documents and payments, if any, required of the Company in
connection with the Closing pursuant to Section 12.
-23-
(b) Conditions Precedent. The Company shall have satisfied or caused
to be satisfied all other conditions precedent to the Closing Date set forth
in this Agreement or any such unsatisfied condition shall have been waived by
Seller.
(c) Representations and Warranties. All of the Company's and the
REIT's representations and warranties made in this Agreement shall be true and
correct in all material respects as of the date hereof and as of the Closing
Date. Moreover, the Company and the REIT shall have performed all of its
covenants and other obligations hereunder in all material respects.
(d) Intentionally Omitted.
(e) Intentionally Omitted.
(f) Listing of Australian Trust. All conditions and requirements for
the listing of Australian Trust on the Australian Stock Exchange and quotation
of its securities have been satisfied (other than administrative requirements
and acquisition of the Properties).
(g) Closing of Relevant Underwriting Transactions. The transactions
under the Underwriting Agreement applicable to the Closing shall have closed.
(h) Intentionally Omitted.
10.03. Effect of Seller's Failure to Meet Conditions.
(a) If Seller shall fail to satisfy any of the Seller's closing
conditions applicable to the Closing, as of the Closing Date, then without
limiting any other right or remedy to which the Relevant Purchasers may be
entitled, the Company shall be entitled, subject to the rights granted to
Seller described in the following sentence, to (i) terminate this Agreement in
its entirety, subject to the Surviving Obligations, provided that the Relevant
Purchasers shall not have the right to terminate this Agreement pursuant to
this clause (i) until the Relevant Purchasers shall have terminated this
Agreement pursuant to the following clause (ii) with respect to one or more
Properties, the individual or aggregate value of which (based conclusively on
the Consideration allocated to such Property or Properties as set forth on the
relevant schedules), is greater than or equal to twenty-five percent (25%) of
the Consideration as of the date hereof (the "Condition Failure Threshold"),
(ii) terminate this Agreement with respect to the affected Property (each such
affected Property as to which this Agreement is terminated, a "Failed Closing
Condition Property") only (in which event (x) this Agreement shall, without
further action of the parties, be deemed to have been automatically and ipso
facto amended so as to eliminate such Failed Closing Condition Property, (y)
the applicable Consideration shall be reduced by the portion thereof allocated
to such Property, and the Cap shall be proportionately reduced, and (z) this
Agreement shall otherwise remain in full force and effect). The foregoing
rights granted to the Relevant Purchasers shall be subject to (a) Seller's
right, exercised by written notice on or before the Closing Date, to extend
the Closing Date by up to thirty (30) days in order to permit Seller, using
commercially reasonable efforts, to satisfy such unsatisfied closing
conditions, and (b) Seller's right to terminate this Agreement in its entirety
from and after such time as the Condition Failure Threshold is reached;
provided, however, that Seller shall be deemed to have waived any of the
foregoing rights that are not exercised in accordance with the foregoing on or
before the Closing Date (as same may have been extended in accordance with the
foregoing or any other provision of this Agreement). Each Failed Closing
Condition Property not replaced with a Substitute Property shall become an
"Option Property" under the Option Agreement, and shall be subject to the
terms and conditions of the Option Agreement.
-24-
(b) Substitute Properties In Lieu of Closing Condition Failure.
Notwithstanding anything to the contrary contained herein, in the event that
any closing condition that Seller intended or is otherwise obligated to
fulfill under this Agreement has not been fulfilled as of the Closing Date
with respect to one or more Properties in accordance with the terms and
conditions of this Agreement, such event shall constitute a "Closing Condition
Substitution Event".
Section 11. Seller's Closing Deliveries
11.01. Seller Closing Deliveries. On the Closing Date, Seller shall
deliver (to the extent not already delivered) the following to the Company:
(a) Leases, Ground Leases, Similar Documents. Originals of all
Leases, Ground Leases, and other similar documents relating to the Properties
and in effect as of the Closing Date, to the extent in Seller's possession or
subject to its control; provided, however, that Seller shall retain all the
foregoing documents during the term of and in accordance with the Services
Agreement.
(b) Security Schedule. A Schedule of all cash security and similar
deposits, held by or on behalf of Seller on the Closing Date under the Leases.
(c) Rent Rolls. Updated Rent Rolls, dated not more than thirty (30)
days prior to the Closing Date and setting forth all arrearages in rents.
(d) Service Contracts. All original Service Contracts or in lieu of
originals, complete certified copies thereof, which are in effect on the
Closing Date and which are assignable by Seller; provided, however, that
Seller shall retain all Service Contracts during the term of the Services
Agreement.
(e) Assignment of Service Contracts, Insurance Policies,
Certificates, Permits and Other Documents. An assignment to the Company and/or
the SPE Entities of all of the interests of Seller in the Service Contracts,
insurance policies (unless provided for in Section 2.01(f)), certificates,
permits and other documents to be delivered to the Company at the Closing
which are then in effect and are assignable by Seller.
(f) Transferable Insurance Policies. With respect to all insurance
policies to be transferred from Seller to the Company (as distinguished from
coverage to be obtained by Seller or the Company in lieu thereof), original
insurance policies, with the Company added on each as an additional insured,
with respect to which premium are to be apportioned or, if unobtainable, true
copies or certificates thereof; provided, however, that Seller shall retain
possession of all such policies during the terms of the Services Agreement.
(g) Certificates, Licenses, Permits, Authorizations and Approvals.
All certificates, licenses, permits, authorizations and approvals issued for
or with respect to the Properties by any Governmental Authority having
jurisdiction thereover to the extent same are transferable to the Company;
provided, however, that Seller shall retain all the foregoing documents during
the term of the Services Agreement.
(h) FIRPTA. A certification of non-foreign status for Owner
Operating Partnership and each Subsidiary, in form required by the Code
Withholding Section, signed under penalty of perjury. Seller understands that
such certification will be retained by the Company and will be made available
to the Internal Revenue Service on request.
-25-
(i) Tenant Notices. An original letter executed by Seller or by its
agent, advising the tenants of the transfer of the Properties to the Company
and directing that rents and other payments thereafter be sent to the Company
or as the Company may direct.
(j) Authority Documents. Corporate resolutions, certificates of good
standing, incumbency certificates and other evidence of authority within
respect to Seller, duly executed where applicable.
(k) Possession. Possession of the Properties in the condition
required by this Agreement, subject to the Leases and Ground Leases, and keys
therefor; provided, however, that Seller shall retain all keys during the term
of the Services Agreement.
(l) Landlord Consents. Original Landlord Consents, if any.
(m) Tenant Estoppels; Landlord Estoppels. All Original Tenant
Estoppels, and any Seller Estoppels in lieu thereof, obtained in accordance
with Section 7.05.
(n) Required Consents. All original Required Consents.
(o) Landlord Estoppels. All Landlord Estoppels or any Substitute
Landlord Estoppels in lieu thereof in accordance with Section 7.06.
(p) Deeds. executed and acknowledged deeds conveying to the Company
fee simple title to the Properties (other than those Properties transferred by
an entity sale pursuant to Section 19 of this Agreement) owned by Seller in
fee simple title, subject to the Permitted Exceptions.
(q) Assignment of Ground Leases. Executed and acknowledged
assignments and assumptions of ground leases (collectively, the "Assignments
of Ground Leases"), assigning and transferring to the Company, as applicable,
all right, title and interest of Seller in and to, and all post-Closing
obligations of the lessee under, all Ground Leases affecting the Properties
(other than those Properties transferred by an entity sale pursuant to Section
19 of this Agreement).
(r) Assignment of Leases. Executed and acknowledged assignments and
assumptions of leases (collectively the "Assignments of Leases"), assigning
and transferring to the Company, as applicable, all right, title and interest
of Seller in and to, and all post-Closing obligations of the lessor under, all
Leases affecting the Properties (other than those Properties transferred by an
entity sale pursuant to Section 19 of this Agreement).
(s) Bills of Sale. Executed bills of sale transferring to the
Company, as applicable, all personal property owned by Seller and located at
or attached to the Properties (other than those Properties transferred by an
entity sale pursuant to Section 19 of this Agreement).
(t) Required Forms. Transfer tax returns, certificates and/or any
other document or instrument required by any federal, state or local
government or municipality to transfer or convey the Properties or to record
any deed or assignment of lease, including, without limitation, any forms
relating to environmental matters required to be filed in connection with the
transfer of the Properties located in Connecticut (collectively, the "Required
Forms").
(u) Services Agreement. An executed Services Agreement.
-26-
(v) Substitute Property Documentation. Any documentation reasonably
requested by the Company, any lender or the Title Company in connection with a
Substitute Property.
(w) Agreements. Counterparts of (w) the Option Agreement (the
"Option Agreement") in the form attached hereto as Exhibit N, (x) this
Agreement, (y) the LLC Agreement, and (z) the Portfolio Services Agreements,
duly authorized, executed and delivered by all of the parties thereto. The
foregoing, collectively, the "Transaction Agreements".
(x) Excluded Property License Agreements. Counterparts of the
Excluded Property License Agreements, duly authorized, executed and delivered
by the Seller.
(y) Estoppels. Seller shall have delivered to or for the benefit of
the Company the requisite Tenant Estoppels, Seller Estoppels, Landlord
Estoppels, and/or Substitute Ground Lessor Estoppels required under Sections
7.05 and 7.06.
(z) Other Documents. any other documents required by this Agreement
to be delivered by Seller (executed and acknowledged where appropriate) or
otherwise necessary or reasonably required to consummate this transaction as
contemplated herein.
11.02. Delivery Requirements for SPE Entity. In the event that an SPE
Entity is the Relevant Purchaser hereunder, delivery to the Company shall
satisfy the delivery requirements hereunder and the deliverables required
under Section 11.01 shall be appropriately modified to reflect the intended
sale to such Relevant Purchaser. The deliveries required under this Section 11
shall be subject to modification pursuant to Section 20 of this Agreement in
connection with a transfer of entity interests in lieu of an asset transfer.
Section 12. The Company's Closing Deliveries
12.01. Company Deliveries. On the Closing Date, Company shall deliver (to
the extent not already delivered) the following to the Seller:
(a) LLC Agreement. The LLC Agreement executed by the Company and the
REIT.
(b) Assumption of Service Contracts, Insurance Policies,
Certificates, Permits and Other Documents. An executed assumption by the
Company and the SPE Entities, as applicable, of all of the interests of Seller
in those Service Contracts, insurance policies, certificates, permits and
other documents to be delivered to the Company at the Closing which are then
in effect and are assignable by Seller.
(c) Portfolio Services Agreement. Executed Portfolio Services
Agreements.
(d) Assignments of Ground Leases and Leases. Executed and
acknowledged Assignments of Ground Leases and the Assignments of Leases.
(e) Intentionally Omitted;
(f) Required Forms. Executed and acknowledged Required Forms to the
extent a purchaser is required to execute and acknowledge the same.
(g) Intentionally Omitted.
-27-
(h) Payment of Consideration. On the Closing Date, the Consideration
(plus or minus net adjustments and prorations pursuant to this Agreement)
payable to Seller on the Closing Date.
(i) Assumption and Indemnity Relating To Ground Leases. An
assumption by the Company or an SPE Entity (as applicable), of, and an
indemnity from the Company in favor of Seller (and/or its Affiliates or
affiliates, but only to the extent they are signatories under any such
indemnity and/or guaranty), in a form and substance reasonably satisfactory to
Seller, with respect to, any guarantees and related documents under the Ground
Leases from which Seller (and/or any of its Affiliates and such other
affiliates) is not released from liability from and after the Closing Date,
for any Losses arising on or after the Closing Date.
(j) Intentionally Omitted.
(k) PHJW Opinion. An opinion from Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP, in the form attached hereto as Exhibit I.
(l) Agreements. Counterparts of the Transaction Agreements (as
defined in Section 11.01 of this Agreement), duly authorized, executed and
delivered by all of the parties thereto except the Relevant Purchasers.
(m) Intentionally Omitted.
(n) Excluded Property License Agreements. Counterparts of the
Excluded Property License Agreements, duly authorized, executed and delivered
by the Relevant Purchasers.
(o) Other Documents. Any other documents required by this Agreement
to be delivered by the Company (executed and acknowledged, where appropriate)
or otherwise necessary or reasonably required to consummate this transaction
as contemplated herein.
In the event that an SPE Entity is the Relevant Purchaser hereunder,
delivery to the Company shall satisfy the delivery requirements hereunder and
the deliverables required under Section 12.01 shall be appropriately modified
to reflect the intended sale to such Relevant Purchaser. The deliveries
required under this Section 12 shall be subject to modification pursuant to
Section 20 of this Agreement in connection with a transfer of entity interests
in lieu of an asset transfer.
Section 13. Apportionments; Closing Costs
13.01. General Apportionments. The following apportionments shall be made
between the parties at the Closing as of 11:59 p.m. on the day prior to the
Closing Date:
(a) rent payments (including prepaid rents) and Additional Rent
actually received by Seller under the Leases, excluding, however, any "advance
rent" paid in advance by tenants under such Leases in respect of the last
month of the term of such Leases (such advance rent, the "Advance Rent").
(b) to the extent not paid directly by tenants under the Leases,
water charges, sewer rents, other utility charges and vault charges, if any,
on the basis of the fiscal period for which assessed, except that if there is
a water meter at the Properties, apportionment at the Closing shall be based
on the last available reading, subject to adjustment after the Closing when
the next reading is available.
-28-
(c) value of fuel stored at the Properties at the price then charged
by Seller's supplier, including any taxes.
(d) charges under transferable Service Contracts and other
transferable agreements pertaining solely to the Properties or permitted
renewals or replacements thereof.
(e) permitted administrative charges, if any, on tenants' security
deposits.
(f) insurance premiums and transfer premiums on transferable
insurance policies or permitted renewals thereof.
(g) insurance premiums on insurance policies that are not
transferred to the Company but under which coverage is provided to the Company
from and after the Closing.
(h) rent under all Ground Leases.
(i) to the extent not paid directly by tenants to taxing authorities
pursuant to the Leases, real estate taxes and personal property taxes for the
current fiscal year.
(j) outstanding leasing commissions, tenant improvement obligations,
free rent and other concessions of the landlord under any new or renewal
leases entered into after the date hereof pursuant to Section 7.01 (such
apportionment to be made based on the fixed term of such new or renewal
lease).
(k) Intentionally Omitted.
(l) Such other items customarily apportioned in real estate closings
of commercial properties in the New York tri-state area.
13.02. Adjustment of Taxes. The adjustment of real estate and personal
property taxes shall be made on the basis of presently available evidence of
such taxes, subject to adjustment by payment from Seller to the Company, or
the Company to Seller, whichever is applicable, after the Closing due to any
change in assessment, applicable rate or other reason. Notwithstanding the
foregoing, all or any portion of any special assessments, that are a lien as
of such Closing and that are not otherwise recoverable from tenants under the
Leases shall be paid by Seller. This Section 13.02 shall survive the Closing
and/or sooner termination of this Agreement.
13.03. Credits. The following adjustments to the Consideration shall be
made between the parties at the Closing:
(a) To the extent not assigned or otherwise transferred to the
Relevant Purchasers, the Company and the SPE Entities, as applicable, shall be
credited and Seller charged with security deposits (together with any interest
accrued thereon) or advance rentals made by tenants under the Leases, the
Ground Leases and any additional Leases entered into by Seller pursuant to
Section 7.01.
(b) To the extent not assigned or otherwise transferred to the
Relevant Purchasers, Seller shall be credited and the Company and the SPE
Entities, as applicable, charged with deposits under any Service Contracts
assigned to the Company at the Closing, and any other transferable deposits to
be transferred in connection with the transactions contemplated hereunder.
-29-
(c) The Company and the SPE Entities shall be credited, and Seller
charged with, all unpaid leasing commissions and tenant improvement
obligations, to the extent applicable to Leases in effect as of the date
hereof (but not including any commissions that may result from the exercise
after the Closing of renewal or expansion options by tenants).
(d) Intentionally Omitted.
(e) The Seller shall be credited, and the Company and the SPE
Entities, as applicable, charged with, amounts paid or payable (including any
bonds or security deposits) under telephone and telex contracts and contracts
for the supply of heat, steam, electric power, gas, lighting and any other
utility service, with Seller receiving a credit for all deposits, if any, made
by Seller as security under any such public service contract(s) if the same is
transferable and provided such deposit remains on deposit for the benefit of
the Company. (In addition, the parties agree to work together in good faith to
determine, before the expiration of the Closing Date, the manner in which
other bonds and security deposits with respect to the Properties will be
handled from and after the Closing. Without limiting the foregoing, the
parties will use good faith efforts to agree as to (i) whether the Company (or
the applicable SPE Entity) should substitute its own bonds and/or security
deposits for those previously posted by Seller, and (ii) which party shall
have responsibility for the cost of any such bond and their respective periods
of responsibility therefor.
13.04. Tenant Arrearages. If any tenant is in arrears in the payment of
rent or Additional Rent on the Closing Date for which the Property affected by
such tenant is being sold, rents received from such tenant after such Closing
shall be applied in the following order of priority:
(a) first to the month in which such Closing occurred;
(b) second to the month prior to the Closing;
(c) third to the months after the Closing; and
(d) fourth to any month or months prior to the Closing.
If rents or Additional Rents or any portion thereof received by Seller or the
Company after the Closing are payable to the other party by reason of this
allocation, the appropriate sum, less a proportionate share of any reasonable
attorneys' fees, out-of-pocket costs and expenses of collection thereof, shall
be promptly paid to the other party, which obligation shall survive the
Closing.
13.05. Additional Rent. If any tenant is required to pay percentage rent,
escalation charges for real estate taxes, common area maintenance charges,
operating expenses, cost-of-living adjustments or other charges of a similar
nature ("Additional Rent"), and any Additional Rent is collected by the
Company or Seller on behalf of the Company after the Closing for the sale of
the Property affected by such tenant which accrued prior to the Closing and
was not otherwise adjusted, then the Company shall promptly pay Seller's
proportionate share thereof to Seller, less any reasonable attorneys' fees,
and any other reasonable out-of-pocket costs and expenses of collection
thereof, which obligation shall survive the Closing.
13.06. Closing Statements. On or before the Closing, Seller will prepare
and the Company shall review and approve (which approval shall not be
unreasonably withheld or delayed) a final closing statement (the "Final
Closing Statement") setting forth the final determination of all open items
and other apportionments estimated as of the Closing to be included on the
closing statements for the Closing and any re-adjustment required to "true up"
any amounts adjusted under Section 13.01
-30-
(including, without limitation, Additional Rent). The net amount due to Seller
or the Company, if any, by reason of adjustments to the closing statement as
shown in the Final Closing Statement, shall be paid or credited to the
applicable party at Closing. The adjustments, prorations and determinations
agreed to by Seller and the Company under this Section 13.06 shall be
conclusive and binding on the parties hereto. Notwithstanding the foregoing,
if at any time within the three hundred sixty five (365) day period following
the Closing (such period being referred to herein as a "Post-Closing
Adjustment Period"), the amount of any item to be apportioned or credited
pursuant to this Agreement shall prove to be incorrect (whether as a result in
an error in calculation or a lack of complete and accurate information as of
the Closing), the party in whose favor the error was made shall promptly pay
to the other party the sum necessary to correct such error upon receipt of
proof of such error, provided that such proof is delivered to the party from
whom payment is requested within the Post-Closing Adjustment Period. In order
to enable Seller to determine whether any such delayed adjustment is
necessary, the Relevant Purchasers shall provide to Seller such information as
Seller shall reasonably request during the Post-Closing Adjustment Period in
order to confirm or finalize closing adjustments hereunder. The provisions of
this Section 13.06 shall survive the Closing and not be merged therein.
13.07. Closing Costs. Subject to the other provisions of this Section 13,
the following shall apply to closing costs:
(a) Company Closing Costs. At the applicable Closing, the Company
shall pay (x) all mortgage recording taxes and (y) any other cost or expense
set forth in this Agreement explicitly to be paid by the Company.
(b) Seller Closing Costs. At the Closing, Seller shall pay (i) all
recording fees on any document recorded pursuant to this Agreement to
discharge Liens and encumbrances which are not Permitted Exceptions in
accordance with the terms and provisions hereof, (ii) all costs incurred in
obtaining the required consents, the Tenant Estoppels, and any Seller
Estoppels in lieu thereof per Section 7.05, and all other required estoppel
certificates per Section 7.06, and (iii) any other cost or expense set forth
in this Agreement explicitly to be paid by Contributor.
(c) REIT Closing Costs. At the Closing, the REIT shall pay (i) all
costs for any document to be recorded pursuant to this Agreement or the LLC
Agreement, (ii) the cost of the title examination, the Title Commitments and
the title insurance premiums, including any extended coverage and
endorsements, incurred in connection with the issuance of the Title Policies
and any same costs associated with any lender title insurance policies, (iii)
the cost of any Survey, (iv) any escrow fee which may be charged by the Title
Company, (v) the cost of Phase I environmental site assessments, other
environmental reports and engineering reports, (vi) the cost of appraisals,
(vii) all prepayment premiums and penalties on any loan encumbering any of the
Properties required to be paid by any party hereto at any Closing, (viii)
intentionally omitted, (ix) all costs associated with the transfer of
insurance policies, and (x) subject to Section 20, all of the state and local
transfer taxes, documentary stamp tax or similar tax required to be paid in
the States, counties, cities and/or towns in which the Properties are located.
(d) Other Costs and Expenses. Except as expressly set forth herein,
each party shall pay its own attorney's fees and all of its other costs and
expenses.
Section 14. Failure of Seller or the Company to Perform
14.01. Company Default/Breach Prior to Closing. If, prior to the Closing,
the Company and/or the REIT shall materially default in the performance of any
of its obligations under this Agreement, or shall materially breach any of its
representations, warranties or covenants contained in this Agreement, and such
default or breach shall remain uncured for ten (10) days after the Company
receives
-31-
written notice thereof from Seller, then Seller, as its sole and exclusive
remedy, may either (i) terminate this Agreement and recover from the Company
and/or the REIT the Seller's actual out of pocket costs incurred in connection
with this Agreement and the transactions contemplated herein or (ii) in its
sole and absolute discretion, commence an action against any such party for
specific performance of such obligations hereunder (subject to all of the
terms of this Agreement). If Seller elects to terminate this Agreement
pursuant to this Section 14.01, this Agreement shall be of no further force
and effect except for the Surviving Obligations, which shall remain in effect
as provided herein.
14.02. Seller Default/Breach Prior to Closing. If, prior to the Closing,
the Seller shall materially default in the performance of any of its
obligations under this Agreement, or shall materially breach any of its
representations, warranties or covenants contained in this Agreement, and such
default shall remain uncured for ten (10) days after the Seller receives
written notice thereof from the Company, then the Relevant Purchasers may
either (i) in their sole and absolute discretion, commence an action against
any such party for specific performance of such obligations hereunder (subject
to all of the terms of this Agreement), or (ii) terminate this Agreement and
recover from the Seller the Relevant Purchasers actual, out of pocket costs
incurred in connection with this Agreement and the transactions contemplated
herein. If the Relevant Purchasers elect to terminate this Agreement pursuant
to this Section 14.02, this Agreement shall be of no further force and effect
except for the Surviving Obligations, which shall remain in effect as provided
herein.
14.03. Termination of Agreement Regarding Aggregation of Title, Survey,
Closing Condition, Condemnation and Casualty Events. Notwithstanding anything
to the contrary herein, if at any time one or more Properties is affected by
any combination of title defects, survey defects, casualty, condemnation, or
closing condition failures and the aggregate value of the Properties lost or
subject to such events exceeds twenty-five percent (25%) of the Consideration
in respect of the Properties to be contributed under this Agreement, then
Contributor shall have the continuing right to terminate this Agreement by
providing written notice of such termination to the Relevant Purchasers.
Section 15. Broker
15.01. Broker Representation and Warranty; Indemnification. Seller and
the Company mutually represent and warrant to each other that neither Seller
nor the Company knows of, or has dealt with, any broker, finder, salesperson
or similar agent who has claimed or may have the right to claim a commission
in connection with this transaction. Seller and the Company shall, subject to
the Cap, indemnify and defend each other against any costs, claims or
expenses, including reasonable attorneys' fees, arising out of the breach on
their respective parts of the representations and warranties or agreements
contained in this Section 15. The representations and obligations under this
Section 15 shall survive the Closing or, if the Closing does not occur, the
termination of this Agreement.
Section 16. Notices
16.01. Method of Notification and Delivery. Any notices, demands,
consents, approvals and other communications ("Notice") provided for in this
Agreement or given in connection with this Agreement shall be given in writing
by (a) personal delivery, (b) reputable overnight delivery service with proof
of delivery, (c) United States Mail, postage prepaid, registered or certified
mail, return receipt requested, deposited in a United States post office or a
depository for the receipt of mail regularly maintained by the post office, or
(d) legible facsimile transmission sent to the intended addressee at the
address set forth below, or to such other address or to the attention of such
other person as the addressee shall have designated by giving at least ten
(10) days written notice sent in accordance herewith, and Notice shall be
deemed to have been given by (i) personal delivery, when received as evidenced
by an affidavit of the person making such delivery, (ii) in the case of
expedited delivery service, next Business
-32-
day following the date sent and (iii) mail, then received by the addressee on
the date received as evidenced by a return receipt. When received in the case
of facsimile transmission, as of the date of the facsimile transmission
provided that an original of such facsimile is also sent to the intended
addressee by means described in clauses (a) or (b) above. The inability to
make delivery because of change of address of which notice was given or by
reason of rejection or refusal to accept delivery of any Notice shall be
deemed to be receipt of the Notice as of the date of such inability to deliver
or rejection or refusal to accept. Unless changed in accordance with the
preceding sentence, the addresses for notices given pursuant to this Agreement
shall be as follows:
If to Seller:
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxx 000X
Xxxxxxxx, Xxx Xxxx 00000
Attn: General Counsel
Fax: 000-000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Fax: 000-000-0000
Telephone: 000-000-0000
Email: XXXxxxxxx@xxxx.xxx
If to the Company:
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxx 000X
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx, Vice President, Legal-Corporate
Fax: 000-000-0000
Telephone: 000-000-0000
Email: XXxxxxxx@Xxxxxxx.xxx
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
-00-
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Esq.
Fax: 000-000-0000
Telephone: 000-000-0000
Email: Xxxxxxxxxxxxxxxx@xxxxxxxxxxxx.xxx
Section 17. Miscellaneous Provisions
17.01. Assignment or Transfer. Subject to Section 18.01 of this
Agreement, no party hereto shall assign this Agreement or its rights hereunder
without the prior written consent of the other parties hereto. Notwithstanding
anything herein to the contrary, the Company shall have the right to instruct
Seller to convey title to any of the Properties to any wholly-owned subsidiary
of the Company designated in writing by the Company at least five (5) Business
Days prior to the Closing, and (ii) Seller may, without the Company and/or the
REIT's consent, assign all or any part of its rights hereunder to an Affiliate
thereof.
17.02. Integration Clause. This Agreement embodies and constitutes the
entire understanding between the parties with respect to the sale of the
Properties to the Relevant Purchasers and all prior agreements,
understandings, representations and statements, oral or written, are merged
into this Agreement.
17.03. Amendments. Neither this Agreement nor any provision hereof may be
waived, modified, amended, discharged or terminated except by an instrument
signed by both parties hereto, and then only to the extent set forth in such
instrument. 17.04. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York without regard
to its principles of conflicts of law.
17.05. Captions. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe or limit the
scope or intent of this Agreement or any of the provisions hereof. Unless
otherwise specified, all references to Sections, sections or provisions in
this Agreement refer to such Sections, Section or provisions as set forth
herein.
17.06. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
17.07. Masculine and Feminine Terms. As used in this Agreement, the
masculine shall include the feminine and neuter, the singular shall include
the plural and the plural shall include the singular, as the context may
require.
17.08. Schedules and Riders. If the provisions of any Schedule or rider
to this Agreement are inconsistent with the provisions of this Agreement, the
provisions of such Schedule or rider shall prevail.
17.09. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute a single instrument.
-34-
17.10. No Recordation. This Agreement shall not be recorded.
17.11. No Third Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their respective successors and permitted
assigns, and no other person or entity shall be entitled to rely upon or
receive any benefit from this Agreement or any term hereof.
17.12. No Offer. The submission of this Agreement for examination does
not constitute an offer by or to either party. This Agreement shall be
effective and binding only after due execution and delivery by the parties
hereto.
17.13. Jurisdiction; Service of Process. The parties hereto each hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of
any judgment in respect hereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the federal courts of the United States
of America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and, to the extent permitted by law, waives any objection that it
may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to its address set
forth hereunder; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction in the continental United States.
17.14. Further Assurances; Cooperation Regarding Consents. Subject to the
terms and conditions herein provided, each of the parties hereto shall execute
and deliver such documents as the other party shall reasonably request in
order to consummate and make effective the transactions contemplated herein;
provided, however, that the execution and delivery of such documents by such
party shall not result in any additional liability or cost to such party. Each
of the parties shall use commercially reasonable efforts to cooperate in order
to obtain any Required Consents.
Section 18. Certain Tax Matters
18.01. Like-Kind Exchanges. The Company and Seller acknowledge and agree
that Seller may elect no later than five (5) days prior to the Closing Date,
to execute and assign to an exchange facilitator, qualified intermediary,
exchange accommodation titleholder or similar entity its interest in this
Agreement with respect to any of the Properties specified by Seller (the
"Excluded Properties") to facilitate a like-kind exchange of the Excluded
Properties in a transaction or transactions which are intended to qualify for
treatment as a tax-deferred like-kind exchange pursuant to the provisions of
Section 1031 of the Internal Revenue Code (a "1031 Exchange"). Subject to
Section 19, Seller's election to proceed with a 1031 Exchange of such
Properties may include transfers of equity interests in entities, the merger
and/or consolidation of entities and/or the creation of other entities such as
single member limited liability companies. If Seller so elects, the Company
shall cooperate (at no expense or liability to it) in effectuating the 1031
Exchange of the such Properties and in implementing any such assignment
-35-
and/or execution of any documentation, provided that (i) Seller shall
indemnify the Company for all direct costs and expenses incurred by the
Company in connection with an intended or effectuated 1031 Exchange of such
Properties, (ii) the Company shall not be obligated to take title to any other
property, nor shall this Section 18.01 affect in any manner Seller's
obligations or the Company's rights and benefits under this Agreement (except
to the extent that each such Property shall no longer be subject to the
provisions of this Agreement), and (iii) it is expressly understood that the
consummation by Seller or the ability by the electing party to consummate its
intended 1031 Exchange is not a condition precedent to Seller's obligation to
consummate the Closing. The Cap shall be proportionately reduced upon the
occurrence of the transactions contemplated in this Section 18.01.
Section 19. Entity Transfers.
19.01. Entity Transfer Provisions. For the purposes hereof, the term
"Sold Entity" shall mean any entity wholly owned (directly or indirectly) by
the Seller and now or hereafter owning one or more of the Properties to be
acquired pursuant to this Agreement. If the Seller reasonably determines,
prior to the Closing, that a transfer of all of Seller's interests in and to
the Sold Entity to the Company or the SPE Entities (each such sequence of
transactions, or any portion thereof, an "Entity Transfer") in lieu of an
asset sale of such Properties as otherwise provided under this Agreement,
would result in a savings in costs, expenses or other liabilities to be
incurred by Seller hereunder or in connection herewith, then the Seller shall,
at least ten (10) Business Days before the Closing, notify the Relevant
Purchasers of Seller's desire to effectuate such Entity Transfer and the
Relevant Purchasers shall, within five (5) Business Days of such notice,
notify Seller of the Relevant Purchasers' approval or disapproval of such
request for an Entity Transfer; provided, however, that such approval shall
not be unreasonably withheld or conditioned if the cooperation required of the
Relevant Purchasers to effectuate such Entity Transfer shall not result in any
unreimbursed increased cost or expense (other than the expense for additional
Searches) or any materially increased obligations or liabilities of the
Company (other than those customarily arising in connection with the transfer
of interests in an entity owning similar property or properties in lieu of
transfers of the underlying property or properties). Failure of the Relevant
Purchasers to respond within the aforementioned five (5) Business Day period
shall be deemed approval of such Entity Transfer. The Relevant Purchasers
shall reasonably cooperate with Seller to effectuate each Entity Transfer that
is approved or deemed approved by the Relevant Purchasers. In connection with
each such Entity Transfer, Seller shall (i) provide, in writing, as of the
Closing Date, such additional representations and warranties related to such
Sold Entity (or the interests in such Sold Entity that are subject to the
Entity Transfer) as may be reasonably requested by the Company and customarily
required in similar transactions, and (ii) provide to the Relevant Purchaser
at the Closing (A) subject to the Cap, an indemnity in favor of the Relevant
Purchasers for losses related to such Sold Entity for matters arising prior to
the Closing Date, in form and substance reasonably satisfactory to the Company
(it being acknowledged and agreed that such indemnification shall be deemed to
eliminate the Company's right to withhold approval of any Entity Transfer on
the grounds that matters covered in such indemnification will result in
materially increased obligations, liabilities, costs or expenses) and (B) any
other documentation reasonably requested by the Company or by any lender of
the Company to the extent customarily required in similar transactions.
Section 20. Certain Provisions Regarding SPE Entities.
20.01. SPE Entities. The Company acknowledges and agrees that it shall
provide Seller with the organizational and authorization documents relating to
each of the SPE Entities prior to the Closing and that, as of the Closing
Date, such SPE Entities shall assume, and shall be jointly and severally
liable for, all obligations and liabilities of the Company in respect of the
Property to be sold to such SPE Entity, and shall be entitled to all of the
rights and benefits of the Company in respect of such Property as may be
provided under this Agreement. Prior to the Closing, the Company shall cause
the
-36-
relevant SPE Entity to execute a joinder agreement in form and substance
reasonably satisfactory to Seller to effectuate the foregoing.
[Signature Pages Immediately Follow]
-37-
SELLER
------
For the following Properties:
000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX;
00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, XX;
000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, XX;
000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX;
000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX:
RECKSON OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY
CORP., its general partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer and
Executive Vice President
RA 00 XXXXXX XXXXXX LLC, a
Delaware limited liability company;
By: RECKSON OPERATING PARTNERSHIP,
L.P,, a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY
CORP., its general partner
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer and
Executive Vice President
For the following Properties:
000 Xxxxx Xxxxxxx, Xxxxxxxxx, XX;
00 Xxxxxx Xxxx, Xxxxxxxx, XX:
RECKSON FS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: RECKSON OPERATING PARTNERSHIP,
L.P,, a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY
CORP., its general partner
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer and
Executive Vice President
COMPANY
-------
RECKSON AUSTRALIA OPERATING COMPANY
LLC, a Delaware limited liability company
By: RECKSON AUSTRALIA LPT CORPORATION,
a Maryland corporation
By: /s/ Xxxxxxx Xxxxxx
------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President
REIT
----
RECKSON AUSTRALIA LPT CORPORATION,
a Maryland corporation
By: /s/ Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President
