Exhibit 10.6
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AGREEMENT
BETWEEN
F.S. REALTY CORP.,
THE 44TH B.C. REALTY CORP.
AND
NS 417/44 LLC
Dated: as of January 14, 1998
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PREMISES: 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
and
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
TABLE OF CONTENTS
Page
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1. AGREEMENT...............................................................4
2. THE LOAN................................................................5
3. CLOSING; CONDITIONS TO CLOSING; COSTS AND EXPENSES......................8
4. STATUS OF PREMISES......................................................9
5. TITLE INSURANCE; LIENS.................................................11
6. REPRESENTATIONS, WARRANTIES AND COVENANTS CONCERNING
THE PREMISES...........................................................14
7. NS COVENANTS, REPRESENTATIONS AND WARRANTIES...........................20
8. OWNER REPRESENTATIONS, WARRANTIES AND COVENANTS........................21
9. DOCUMENTS AND OTHER ITEMS TO BE DELIVERED AT CLOSING...................29
10. DISCLAIMER; WAIVER OF CLAIMS...........................................33
11. DAMAGE AND DESTRUCTION; CONDEMNATION...................................33
12. BROKERAGE..............................................................34
13. REMEDIES...............................................................35
14. INSPECTION.............................................................36
15. NOTICES................................................................36
16. APPORTIONMENTS.........................................................38
17. BINDING EFFECT.........................................................38
18. ASSIGNMENT.............................................................38
19. CHOICE OF LAW..........................................................39
20. SURVIVAL...............................................................39
21. COUNTERPARTS...........................................................39
22. FURTHER ASSURANCES.....................................................39
23. INVALIDITY OF PARTICULAR PROVISION.....................................39
EXHIBITS
EXHIBIT A - Description of 417 Land
EXHIBIT A-1 - Description of 44 Land
EXHIBIT B - Escrow Provisions
EXHIBIT C - Form of Tenant Estoppel
EXHIBIT D - Form of Landlord Estoppel
EXHIBIT E - Security Deposit Assignment Agreement
EXHIBIT F - LockBox Agreement
EXHIBIT G - Notice to Tenants
EXHIBIT H - Form of Newco Operating Agreement
EXHIBIT I - Form of Assignment of Leases
EXHIBIT J - Form of Assignment of Included Property
EXHIBIT K - Authorization Letter
EXHIBIT L - Owners Certification
EXHIBIT M - W-9 Form
EXHIBIT N - Exceptions to Non-Recourse
(1) SCHEDULES
Schedule 1 - Leases, Security Deposits; Rent Roll
Schedule 2 - Contracts
Schedule 3 - Permits
Schedule 4 - Insurance Policies
Schedule 5 - Jewish Holidays
Schedule 6 - Tax Certiorari Proceedings
Schedule 7 - Records
Schedule 8 - Management Termination Fee
Schedule 9 - Schedule of Receivables
Schedule A - Form of Master Lease
Schedule B - Form of Option Agreement
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(1) All schedules to be adjusted to reflect actual date of closing under the
Agreement.
DEFINITION PAGE
Section
Term Number
---- ------
A.A........................................................................8(h)
A.A. Confirmation..........................................................8(h)
Additional Downpayment.....................................................2(d)
Affidavits.................................................................5(d)
Agreement..........................................................Introduction
Amount Payable.............................................................1(a)
Assignment of Leases..................................................9(a)(xiv)
Authorization Letter.......................................................8(g)
Business Days..............................................................5(c)
Closing Date...............................................................3(a)
Condemnation..............................................................11(a)
Conforming Tenant Estoppel..............................................8(e)(i)
Contracts...............................................................6(a)(i)
Courier......................................................................15
Deadline Date..............................................................1(a)
Downpayment.............................................................1(a)(i)
Escrow Agent............................................................1(a)(i)
FS Owner...........................................................Introduction
Family Members..........................................................6(viii)
44 Building.............................................................Recital
44 Land.................................................................Recital
44 Owner...........................................................Introduction
417 Building............................................................Recital
417 Land................................................................Recital
417 Premises............................................................Recital
Holidays...................................................................5(c)
Included Property.....................................................Exhibit J
Intangible Property...................................................Exhibit J
Judmart...................................................................12(a)
Landlord's Estoppel....................................................8(e)(ii)
Leases................................................................4(a)(vii)
Leasehold Loan.............................................................2(e)
Lender..................................................................2(a)(i)
Loan....................................................................Recital
Loan Costs.................................................................2(c)
Loan Documents..........................................................2(b)(i)
Loan Transaction Documents..............................................2(b)(i)
Lost Note Material.........................................................2(b)
Xxxxxx..................................................................4(a)(i)
Management Termination...............................................6(a)(xvii)
Management Termination Fee...........................................6(a)(xvii)
Managing Agent..........................................................6(a)(i)
Managing Agreement.....................................................6(a)(ii)
Master Lease............................................................Recital
Master Tenant...........................................................Recital
Major Casualty............................................................11(d)
Major Condemnation........................................................11(d)
Major Tenant..........................................................8(a)(iii)
Master Tenant..........................................................8(e)(ii)
Memoranda..............................................................9(a)(iv)
NS.................................................................Introduction
NS Member..................................................................8(b)
Newco......................................................................8(b)
Newco Operating Agreement..................................................8(b)
Newco Operating Agreements.................................................8(b)
Non-Delivering Tenants.................................................8(e)(ii)
Option..................................................................Recital
Option Agreement........................................................Recital
Option Payments.......................................................1(a)(iii)
Original Notes.............................................................2(b)
Owner..............................................................Introduction
Owners.............................................................Introduction
Owners' Certification......................................................8(h)
Owner's Closing Documents..................................................9(a)
Permits................................................................6(a)(vi)
Permitted Encumbrances.....................................................4(a)
Personalty.............................................................6(a)(ix)
Plans.................................................................Exhibit J
Premises................................................................Recital
Purchase Right.........................................................1(a)(iv)
Receivables.............................................................6(a)(i)
Records...............................................................6(a)(xvi)
Rent Roll...............................................................6(a)(i)
Report.....................................................................5(a)
Required Tenants........................................................8(e)(i)
Security Deposits.......................................................6(a)(i)
Tenant Estoppels........................................................8(e)(i)
Title Company..............................................................5(a)
Transfer.............................................................6(a)(viii)
AGREEMENT
THIS AGREEMENT (this "Agreement"), made as of the 14th day of
January, 1998, by and between F.S. REALTY CORP. (the "FS Owner") and THE 44TH
B.C. REALTY CORP (the "44 Owner"), both New York corporations having an office
c/o Prince Management Corp., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 ( the FS Owner and the 44 Owner, collectively, the "Owners" and,
individually, an "Owner") and NS 417/44 LLC, a Delaware limited liability
company having an office c/o NorthStar Capital Partners LLC, 000 Xxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("NS").
W I T N E S S E T H:
WHEREAS, the FS Owner is the owner in fee of a certain parcel of
land (the "417 Land") and improvements located thereon (said improvements
together with any future replacements thereof, collectively, the "417
Building"), which land and improvements as described in Exhibit A are also known
as 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the 417 Land and the 417 Building
hereinafter, the "417 Premises");
WHEREAS, the 44 Owner is the Owner in fee of a certain parcel of
land (the "44 Land") and improvements located thereon (said improvements
together with any replacements thereof, collectively, the "44 Building"), which
land and improvements as described in Exhibit A-1 are also known as 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (the
44 Land and the 44 Building hereinafter, the "44 Premises", the 417 Premises and
the 44 Premises, collectively, the "Premises");
WHEREAS, NS desires to acquire from each Newco (as hereinafter
defined) an irrevocable option (the "Option") to purchase the Premises owned by
such Newco and, subject to the terms hereof, each Newco is willing to grant to
NS such Option;
WHEREAS, Owners have agreed that NS may elect to arrange for each
Newco to obtain a loan (the "Loan"), which Loan, also at NS's election, may be
secured by a first lien mortgage(s) encumbering the Premises and NS shall pay
all closing costs and lender fees associated therewith;
WHEREAS, the proceeds of any such Loan will be paid to each Newco as
part of the Amount Payable (as hereinafter defined); and
WHEREAS, simultaneously with the closing of the Loan (i) each Newco,
as landlord, and affiliates of NS, as tenant (the "Master Tenant"; all
references herein to the Master Tenant shall be deemed a reference to the tenant
under the Master Lease for each Premises as the context shall require), will
enter into a lease in the form attached hereto as Schedule A (the "Master
Lease"; all references herein to the Master Lease shall be deemed a reference to
the Master Lease for each Premises as the context shall require) with respect to
each of the Premises and (ii) Newco, as optionor, and an affiliate of NS, as
optionee, will execute and deliver the Option Agreement in the form attached
hereto as Schedule B (the "Option Agreement"; all references herein to the
Option Agreement shall be deemed a reference to the Option Agreement in respect
of each Premises as the context shall require).
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NOW, THEREFORE, for good and valuable consideration and the mutual
agreements herein contained, the parties covenant and agree as follows:
1. AGREEMENT
(a) Each Owner hereby agrees that, unless this Agreement shall be
terminated as provided herein and subject to any adjustments provided for herein
as to amounts payable at the Closing (hereinafter defined), it shall execute and
deliver in respect of the Premises owned by such Owner the Owner's Closing
Documents (as hereinafter defined) in consideration for the payment to the
Owners on or before February 3, 1998 (as same may be extended herein, the
"Deadline Date") of an amount equal to Seventy Million ($70,000,000) Dollars
(the "Amount Payable"), which Amount Payable shall be payable to both Owners at
Closing as follows:
(i) $4 million payable by NS (said sum, together with any
interest thereon, the "Downpayment"), upon the execution and delivery of
this Agreement by both parties, by check to Xxxxxxx, Xxxxx & Xxxxx, P.C.
as escrow agent ("Escrow Agent"), which Downpayment shall be held pursuant
to the provisions of Exhibit B attached hereto;
(ii) an amount equal to $55,000,000 from the proceeds of one
or more Loan(s); and
(iii) a portion of the balance of the Amount Payable as an
Option Fee (as defined in the Option Agreement) and the remaining portion
of the balance of the Amount Payable as payment for the Interest Purchase
Option (the "Purchase Right"), as provided in the Newco Operating
Agreement (as hereinafter defined) (such amounts,
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collectively, the "Option Payments") and shall be allocated between the
417 Premises and the 44 Premises, as determined by NS in its sole
discretion.
(b) Delivery to the Owners at Closing of the Downpayment and any
Additional Downpayment, as hereinafter provided, shall constitute part of the
consideration paid in respect of the Option and the Purchase Right.
2. THE LOAN.
(a) If NS elects to effectuate the Loan, the Loan shall:
(i) be debt made by one or more Lending Institutions (as
defined in the Master Lease) or NS or an affiliate ("Lender") and secured, at
NS' option, by one or more mortgage liens on the Premises, provided that, at NS'
option (A) separate mortgages may be placed on each Premises, which mortgages
may be cross-collateralized and/or cross-defaulted or (B) one mortgage may
encumber both Premises (as well as, if NS so elects, other premises as well,
provided, however, the mortgage(s) or deeds of trust encumbering such other
premises may not be cross defaulted with the mortgage(s) on the Premises);
(ii) be non-recourse to the Owners except for those items set
forth on Exhibit N;
(iii) be in the aggregate principal amount of no more than
Fifty-Five Million ($55,000,000) Dollars;
(iv) not permit the Lender to participate in the income
derived by the Owners from the Premises; and
(v) shall be allocated between the Premises, as determined by
NS in its sole discretion, provided, however, if the Lender is NS or an
affiliate of NS then (A) the
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maximum amount of the Loan encumbering the 417 Premises shall be no more than
$[36,000,000] and the maximum amount of the Loan encumbering the 44 Premises
shall be no more than $[23,000,000] or any other similar pro rata allocation (it
being understood that , notwithstanding such allocation, the aggregate principal
amount in respect of both Premises shall be no more than $55,000,000) and (B) no
default interest shall be charged by the Lender (which limitation shall apply
only to that portion of the Loan held from time to time by NS or an affiliate);
(b) Each Owner covenants and agrees to cooperate with NS and to
provide any information about the Premises in its possession or control. In
connection therewith, each Owner agrees to deliver (A) any documentation
reasonably required by the Lender and (B) all original promissory notes (the
"Original Notes") evidencing any liens encumbering the 44 Premises in order that
such Original Notes may be assigned to the Lender, if so required by NS. If the
holder of the Original Notes is unable to deliver the Original Notes, Owner will
(Y) require such holder to deliver to the Lender and the Title Company an
affidavit that such Original Notes have been misplaced or lost and (Z) execute
replacement note(s), all as may be reasonably required by the Lender
(collectively, the "Lost Note Material"). Except as provided in Exhibit N,
nothing contained herein shall be deemed to impose any obligation on Owner to
execute and deliver any documents imposing personal liability on Owner or its
principals. Additionally, each Owner covenants and agrees that:
(i) At Closing, each Owner shall execute and deliver the
documents evidencing and/or securing the Loan encumbering each Owner's fee
interest in the 417 Premises or the 44 Premises, as the case may be
(collectively, the "Loan Documents") and shall also execute and deliver any
other documents or affidavits reasonably required by the Title Company (as
hereinafter defined) in connection therewith (collectively, the "Loan
Transaction Documents");
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(ii) It shall cooperate in satisfying any reasonable requests
by Lender as part of Lender's condition precedent to Closing, including, without
limitation, causing Owners' counsel to deliver any opinions with respect to each
Owner and, provided NS' counsel shall have delivered an opinion to the Owners
that the Loan Documents are enforceable, which Owners' counsel is specifically
authorized to rely upon, an opinion as to the enforceability of the Loan
Documents that may be reasonably required by Lender, which opinion(s) shall be
deemed part of the Loan Transaction Documents; and
(iii) If the Lenders (or the lender under the Leasehold Loan
(hereinafter defined)) shall request reasonable modifications to this Agreement,
the form of the Master Lease, the Option Agreement, or the Newco Operating
Agreement (which shall include any exhibits to all such documents) as a
condition to making the Loan, each Owner shall agree to make such modifications,
provided same do not increase the obligations of the Owners under such
documents.
(c) NS agrees that it shall pay all costs in connection with
obtaining and closing the Loan and recording the Loan Documents (collectively,
the "Loan Costs").
(d) If NS wishes to adjourn the Deadline Date, NS shall so notify
Owner, which notice shall include a check payable to the Escrow Agent (or
evidence that funds have been forwarded by wire to Escrow Agent) in the amount
of One Million ($1,000,000) Dollars (the "Additional Downpayment"). Time shall
be of the Essence in respect of NS's obligations to deliver said notice and
Additional Downpayment on or before the Deadline Date, provided that the Owners
have notified NS on or before February 1, 1998 that they have obtained
Conforming Tenant Estoppels from the Required Tenants and the A.A. Confirmation
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(hereinafter defined). In the event the Owners shall fail to notify NS that they
have obtained Conforming Tenant Estoppels from the Required Tenants and the A.A.
Confirmation by February 1, 1998, then the Deadline Date shall be extended until
two (2) business days after the Owners have given NS notification that they have
obtained the Conforming Tenant Estoppels from the Required Tenants and the A.A.
Confirmation. If NS delivers the Additional Downpayment, (i) all references in
this Agreement to Downpayment shall be deemed to include the Additional
Downpayment, which Downpayment shall be thereby increased to Five Million
($5,000,000) Dollars, and (ii) the Deadline Date shall be extended at NS' option
for up to thirty (30) days. Time shall be of the essence in respect of the
obligations of NS to close by such extended Deadline Date, subject to the terms
of this Agreement.
(e) Owner acknowledges and agrees that, at NS' sole cost and
expense, NS may from time to time finance its interest in the Master Lease,
provided that such loan(s) (collectively, the "Leasehold Loan") are at all times
subordinate to the Loan and to the fee. The first such loan may close
simultaneously with the Loan.
3. CLOSING; CONDITIONS TO CLOSING; COSTS AND EXPENSES.
(a) Subject to the satisfaction of each of the conditions to
Closing, the Closing shall occur on a mutually convenient date on or before the
Deadline Date, as same may be extended as provided herein in Sections 3(d), 5(b)
and 8(f) hereof (the "Closing Date"), set by the parties and Lender, at the
offices of NS's attorneys, Battle Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or as otherwise required by Lender or its counsel, provided such
offices are located in the metropolitan New York area.
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(b) NS's Conditions Precedent. Satisfaction of each of the following
conditions, any of which may be waived in writing by NS, shall be deemed a
condition to NS's obligation to close hereunder:
(i) Fee title to the Premises shall be in accordance with the
terms of this Agreement;
(ii) Each Owner's representations and warranties set forth
herein shall be true and correct in all material respects as of the Closing
Date;
(iii) receipt of the A.A. Confirmation (hereinafter defined);
and
(iv) Each Owner shall have performed, observed, and complied,
in all material respects, with all of the covenants, agreements, and conditions
required by this Agreement to be performed, observed and complied with by it
prior to or as of the Closing.
(c) Owners' Conditions Precedent. Satisfaction of each of the
following conditions, any of which may be waived in writing by the Owners, shall
be deemed a condition to the obligation of each Owner to close hereunder:
(i) NS shall have delivered the Amount Payable less the
Downpayment and any Additional Downpayment;
(ii) NS's representations and warranties set forth herein
shall be true and correct in all material respects as of the Closing Date; and
(iii) NS shall have performed, observed, and complied, in all
material respects, with all of the covenants, agreements, and conditions
required by this Agreement to be performed, observed and complied with by NS
prior to or as of the Closing.
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(d) Other than as specifically provided herein, each party shall be
responsible for its own costs and expenses in connection with this Agreement and
the transactions contemplated hereby.
4. STATUS OF PREMISES.
(a) At the Closing, the Premises shall be subject only to the
following matters (collectively, the "Permitted Encumbrances"):
(i) with respect to the 417 Premises, the survey encroachments
indicated in the Report (as hereinafter defined) in respect of that certain
survey by Xxxxxxx X. Xxxxxxx dated February 1, 1963, redated February 25, 1994
by Xxxx X. Xxxxxx, X.X. Xxxxxxx ("Xxxxxx") and updated by visual examination by
Xxxxxx on December 9, 1997 and with respect to the 44 Premises, the survey
encroachments indicated in the Report in respect of that certain survey by
Xxxxxxx X. Fords & Sons, dated March 26, 1917 and updated by visual examination
by Xxxxxx on December 8, 1997, and any state of facts which further updated
surveys of the Premises would disclose as of the date hereof, provided same do
not make title unmarketable;
(ii) solely with respect to the 417 Premises, Terms, Covenants
and Restrictions recorded in Liber 635 Cp 426, Liber 695 Cp 584 and Liber 890 Cp
268;
(iii) real estate and other taxes, water and sewer charges and
other taxes and assessments affecting the Premises from and after the Closing
Date (which will be apportioned as provided in the Master Lease);
(iv) building restrictions and regulations in resolutions or
ordinances adopted by the Board of Estimate and Apportionment of the City of New
York, or any
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successor body, and all the amendments and additions thereto, now in force, if
any, and any changes between now and the Closing Date, provided such changes (y)
are not violated by the Premises and (z) do not adversely affect the intended
use thereof;
(v) present and future zoning laws, ordinances, resolutions
and regulations of the City of New York and all present and future ordinances,
laws, regulations and orders of all boards, bureaus, commissions and bodies of
any municipal, county, state or federal sovereigns now or hereafter having or
acquiring jurisdiction of the Premises and the use and improvement thereof, if
any, and any changes between now and the Closing Date, provided such changes (y)
are not violated by the Premises and (z) do not adversely affect the intended
use thereof;
(vi) the revocable nature of the right, if any, to maintain
vaults, vault spaces, tunnels, basements and sub-basement spaces, areas,
structures, marquees or signs, beyond the building lines;
(vii) the Master Lease, all leases, licenses and other
occupancy agreements (oral or written) for the leasing of space at the Premises,
identified on Schedule 1 annexed hereto (collectively, the "Leases");
(viii) the Loan Documents and the Option Agreement; and
(ix) any other matter or thing affecting the Premises which NS
agrees to take subject to or waives in writing pursuant to the provisions of
this Agreement.
(b) Owner covenants not to create, cause or permit any non-Permitted
Encumbrance.
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5. TITLE INSURANCE; LIENS.
(a) NS (i) shall obtain a title insurance report and commitment for
an Owner's and Lender's title insurance policy from a title insurance company
(the "Title Company") with respect to the Premises and a copy of all title
documents listed therein (such reports, and any updates or revisions thereto,
are hereinafter referred to collectively as the "Report") and (ii) shall furnish
to Owners' counsel at the address set forth in Section 15 hereof a copy of the
Report and a written statement setting forth NS's objections, if any, to any
matter reflected in the Report other than the Permitted Encumbrances.
(b) Each Owner covenants and agrees to use reasonably diligent
efforts to eliminate such objections. If any Owner is unable to eliminate such
objections (or any other matters which are subsequently reported by the Title
Company) by the Closing Date, any Owner may adjourn the Closing for a reasonable
period of time, not to exceed sixty (60) days, to remove such objection. If
after diligent effort such Owner is still unable to remove such objections, NS,
at its option, may (i) terminate this Agreement, whereupon the Owners shall
promptly thereafter cause the Downpayment, together with interest thereon, to be
returned to NS and neither NS nor the Owners shall have any further obligations
hereunder except pursuant to provisions of this Agreement which expressly
survive termination or (ii) proceed to close subject to such objections, with no
reduction in the Amount Payable.
(c) Notwithstanding the foregoing, if such objections (which may
include, without limitation, payment of prior vault charges, environmental
control board liens and judgments against any Owner and payment of any penalties
in connection therewith) may be removed by a payment of money, the Owners shall
either satisfy same at Closing or the
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Owners may, in lieu of satisfying any of the foregoing objections affecting the
Premises, direct NS to apply a portion of the Amount Payable to the satisfaction
of such objections or require that appropriate adjustment be made to the balance
of the Amount Payable at Closing, provided that Owner shall deliver to NS, at
Closing, instruments in recordable form, which, in the opinion of the Title
Company will be reasonably sufficient to satisfy the matters objected to by NS,
together with the cost of recording or filing any such instruments. In the
alternative, the Owners may place in escrow with the Title Company any amount
(as well as any affidavits and other documentation) deemed necessary by the
Title Company in order to enable the Title Company to omit such objections from
the title policies to be delivered to NS and any Lender at the Closing. NS
shall, if request is made by not later than three (3) business days (as
hereinafter defined) prior to the Closing Date, provide Owner, at the Closing,
with separate unendorsed certified or bank checks, payable as directed by Owner,
in an aggregate amount not exceeding the balance of the Amount Payable less
adjustments to facilitate the satisfaction of any such liens or encumbrances. As
used herein, the term "business days" shall mean such Mondays, Tuesdays,
Wednesdays, Thursdays and Fridays that do not fall on Holidays. The term
"Holidays" shall mean those days listed on Schedule 5 attached hereto as well as
New Year's Day, Xxxxxx Xxxxxx Xxxx, Xx. Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day and
Christmas, and any other days on which there is no regular United States postal
service and the New York Stock Exchange (or any successor thereto) is closed.
(d) If the Report discloses judgments, bankruptcies or other
proceedings or encumbrances against other persons having names the same as, or
similar to that of any of the
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Owner, Owner, on request, shall deliver to the Title Company affidavits
satisfactory to the Title Company showing that such judgments, bankruptcies or
other proceedings or encumbrances are not against Owner. Additionally, Owner
will deliver any affidavits reasonably required by (and reasonably satisfactory
to) the Title Company (i) in respect of any construction, maintenance and/or
tenant improvement work at the Premises that could give rise to mechanics'
liens, (ii) for the issuance of a non-imputation endorsement benefitting the
affiliate of NS that will be in each Newco, and (iii) any Section 255 and 275
affidavits that may be required with respect to the assignment of the Original
Notes to the Lender (the affidavits required by this Section 5(d) and any other
affidavits reasonably required by the Title Company, collectively, the
"Affidavits").
6. REPRESENTATIONS, WARRANTIES AND COVENANTS CONCERNING THE
PREMISES.
(a) Each Owner hereby represents and warrants to NS in respect of
such Owner that the following representations, warranties and covenants are true
and correct as of the date hereof (unless otherwise indicated) and shall remain
and be true and correct at all times during the term of this Agreement through
and including the Closing Date with the same force and effect as if made on that
date:
(i) There are no leases, tenancies, licenses or other rights
of occupancy for any portion of the Premises other than the Leases; the Leases
are in full force and effect and all amendments, modifications and supplements
thereto have been delivered to NS; no tenant under any Lease has paid rent more
than one month in advance of the Closing Date; on the Closing Date there shall
be no obligations on the part of each Owner remaining to
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be performed by such Owner including, without limitation, tenant improvement or
landlord work, payment of management fees or any other fees due to X. X. Xxxxx
Management Corp., the sole manager of the Premises (the "Managing Agent"),
payment of brokerage commissions to Managing Agent and/or any other brokers or
consultants that will not be fully and completely paid and satisfied at the
Closing by the Owners and no brokerage commissions are to be paid by the Owners
under installments due after the Closing Date; Owner is not in default under the
Leases; all security deposits (the "Security Deposits") under the Leases are set
forth on Schedule 1; no Security Deposits have been applied against a tenant's
lease obligations; true, correct and complete copies of all Leases and any
brokerage agreements related thereto have been delivered to NS and same have
been initialed by counsel to both parties; there are no uncured defaults under
any Leases by any tenant thereunder beyond any applicable grace, notice and cure
periods, except as set forth in the Schedule of Receivables for each Premises
attached hereto as Schedule 9 (the "Receivables"); Schedule 1 also sets forth a
true, correct and complete rent roll (the "Rent Roll") for the Premises dated as
of the first day of January, 1998, which Rent Roll shall also specifically
identify which tenants at the Premises (A) are "month-to-month" tenants and (B)
have leases expiring in 1998; the Rent Roll shall, in addition, state the
information required by the Tenant Estoppels (hereinafter defined), except items
4, 5, 7 and 12 of the Tenant Estoppels, as well as item 3 thereof to the extent
it covers the right to extend the Leases.
(ii) There are no service, supply, maintenance, employment,
Management Agreements (hereinafter defined) and union agreements or contracts
affecting the Premises other than those set forth on Schedule 2 attached hereto
(collectively, the
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"Contracts"); true, correct and complete copies of all Contracts have been
delivered to NS; the Contracts are in full force and effect and have not been
amended, modified or supplemented except as set forth on Schedule 2; no party to
any Contract has paid amounts due thereunder more than one month in advance,
except as may be required by the managing agreements with the Managing Agent
(collectively, the "Managing Agreements"); as of the Closing Date, all amounts
due and payable by the Owners pursuant to the terms of the Contracts will have
been fully paid; and there are no uncured defaults under any Contract by any
party thereto beyond any applicable grace, notice and cure periods.
(iii) No written notice has been given to Owner or its
representatives by any insurance company which has issued a policy or by any
board of fire underwriters (or other body exercising similar functions) claiming
any defects or deficiencies or requesting the performance of any repairs,
alterations or other work.
(iv) There is no pending condemnation or similar proceeding
affecting the Premises or any portion thereof and neither Owner has received any
written notice thereof, nor has any Owner any knowledge that any such proceeding
is contemplated.
(v) There are no actions, suits or proceedings pending or, to
the knowledge of each Owner, threatened, against or affecting any Owner or the
Premises or any portion thereof or relating to or arising out of the ownership,
management or operation of the Premises, in any court or before or by any
federal, state, county or municipal department, commission, board, bureau or
agency or other governmental instrumentality, except for personal injury claims
or claims fully covered by insurance.
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(vi) To the knowledge of each Owner in respect of the Premises
owned by such Owner, Schedule 3 annexed hereto is a true and complete list of
all permits, certificates, authorizations and approvals pertaining to the
occupancy, use and operation of the Premises in its possession (collectively,
the "Permits"); the fees for such Permits are fully paid; and each Owner agrees
to deliver at Closing, or within a reasonable time thereafter (which obligation
shall survive the Closing), originals or true copies of such Permits and all
warranties and guaranties in such Owner's possession (for the purposes of this
Agreement, "possession by Owner" shall be deemed to include possession by the
Owner, the Managing Agent and their respective agents, counsel and
representatives).
(vii) Schedule 4 is a complete description of all fire,
casualty and extended coverage insurance policies carried by Owner in respect of
the Premises; such insurance is fully paid through the date of expiration
thereof, which expiration date will not occur prior to the Closing Date and
Owner shall maintain such policies through the date of Closing.
(viii) Other than the Option Agreement, each Owner will not
and has not entered into any agreement, other than this Agreement, to sell,
transfer, convey, lease, assign, mortgage, hypothecate, encumber or dispose of
(directly or indirectly) (voluntarily or by operation of law) all or any portion
of the Premises or any interest therein or portion thereof (a "Transfer"); and
there are no options, rights of first offer, rights of first refusal or similar
rights to acquire all or any portion of the Premises in favor of any other
party, including, without limitation, the tenants under the Leases. For purposes
of this Section 6(a)(viii), a Transfer shall be deemed to include any change in
the ownership interests of
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Owner, provided that inter vivos or testamentary transfers or issuance of
capital stock in Owner to one or more family members of Xxxxx Xxxxxxx, or trusts
in which all of the beneficial interest is held by one or more of such family
members or a partnership or limited liability company in which all the capital
and profits interests are held by such family members shall not be deemed a
Transfer; and provided further, that, if, as and when each Newco is formed, no
Transfers of member interests in Newco shall be permitted, except as
specifically contemplated in Section 8(b) of this Agreement. As used herein,
"family members" shall be limited to the spouse, parents, siblings, children and
grandchildren of Xxxxx Xxxxxxx and their respective spouses or any entity owned
or controlled by any of them. Any Transfer in violation of this Section
6(a)(viii) shall be void ab initio.
(ix) Except as may be owned by tenants under the Leases, Owner
is the sole owner of, and has good and marketable title to, all fixtures,
furniture, furnishings, equipment and other personal property at the Premises
(the "Personalty"), which Personalty will be free and clear of all liens,
encumbrances, claims, chattel mortgages, conditional bills of sale, security
interests and demands (other than the Loan) on the Closing Date.
(x) There are no presently pending tax certiorari proceedings,
except as set forth on Schedule 6 annexed hereto.
(xi) True, correct and complete copies of all monthly
management statements from January, 1997 through November, 1997 in respect of
the Premises received by the Owners from Managing Agent have been delivered to
NS.
(xii) The Premises is separately assessed for real property
tax purposes; no special assessments have been issued against the Premises.
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(xiii) All services, material or work which have been supplied
to the Premises for which payment is due have been paid in full or will be paid
in full at the Closing.
(xiv) Owner shall (A) continue to maintain the Premises and
all systems in the same manner as the Premises have been heretofore maintained,
(B) not terminate, amend or modify any of the Leases or enter into any new
leases, licenses or other occupancy agreements without NS' prior written
consent, which consent shall not be unreasonably withheld or delayed, and (C) if
requested by NS, institute summary proceedings against any defaulting tenant,
provided, however, Owner, on notice to NS, shall be entitled to commence summary
proceedings against any tenant that is in default of its rent obligations for
more than three (3) months, after the expiration of all grace and notice
periods.
(xv) Any and all environmental reports in respect of the
Premises have been delivered to NS and, to each Owner's knowledge, there are no
other environmental reports in respect of the Premises.
(xvi) Any and all of the documents listed on Schedule 7
attached hereto (collectively, "Records") relating to the Premises have been
delivered to NS and true and complete copies of the documents listed as items 1,
2, 6 and 7 on said Schedule 7 are attached thereto, except as set forth therein.
(xvii) At the request of NS at any time from the date hereof
until the Deadline Date, each Owner (A) will promptly terminate (a "Management
Termination") the Managing Agent pursuant to the terms of the Management
Agreement for each Premises and (B) covenants and agrees to pay any and all
fees, premiums, termination fees (as identified on Schedule 8 attached hereto,
the "Management Termination Fee"), commissions and any other
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amounts due the Managing Agent in connection with its services and/or on account
of the termination, which termination shall be effective no earlier than the
Deadline Date. Without in any manner limiting the generality of the foregoing,
in the event NS has not requested a Management Termination for the 44 Premises,
an amount equal to the Termination Fee, if any, for such Premises will be placed
in escrow with Owners' counsel, as Escrow Agent, to be held pursuant to the
provisions of Exhibit B hereof, and will be released to Master Tenant upon the
earlier of a) receipt by the Escrow Agent of a copy of a notice from Master
Tenant terminating the Management Agent for the 44 Premises, or b) sixty (60)
days after the Deadline Date, as same may be extended as provided herein.
(b) Each Owner covenants and agrees that, if prior to Closing
NS shall request reasonable changes to be made to the provisions of the Master
Lease, each Owner shall agree to such reasonable non-material changes, provided
that the foregoing shall not be construed in any way to invalidate the binding
nature of this Agreement.
7. NS COVENANTS, REPRESENTATIONS AND WARRANTIES.
(a) NS represents and warrants to Owner that the following
representations and warranties are true and correct as of the date hereof and
shall be true and correct as of the Closing Date with the same force and effect
as if made at that time:
(i) The execution and delivery of this Agreement and the
consummation by NS of the transactions contemplated hereby (A) have been duly
authorized pursuant to the terms of NS's organizational documents and (B) will
not conflict with, or result in a breach of, any of the terms, conditions and
provisions of its organizational documents or
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any contract, agreement or instrument to which it is a party or by which it is
bound, or to which it or any portion of its Premises is subject;
(ii) NS has full power and authority to enter into this
Agreement and to perform all of NS's obligations hereunder and no further
action, approval or consent will be required in order to constitute this
Agreement as a binding and enforceable obligation of NS and the person executing
this Agreement on behalf of NS has full power and authority to act for and bind
NS; and
(iii) NS is validly existing and in good standing in its state
of formation.
(b) The NS Member represents and warrants to each Owner that the
following representations and warranties shall be true and correct as of the
Closing Date:
(i)The execution and delivery of the Newco Operating Agreement
and the performance by the NS member of the provisions thereof (A) have been
duly authorized pursuant to the terms of the NS Member's organizational
documents and (B) will not conflict with, or result in a breach of, any of the
terms, conditions and provisions of its organizational documents or any
contract, agreement or instrument to which it is a party or by which it is
bound;
(ii) The NS Member has full power and authority to enter into
the Newco Operating Agreement and to perform all of its obligations thereunder
and no further action, approval or consent will be required in order to
constitute the Newco Operating Agreement as a binding and enforceable obligation
of the NS Member and the Person
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executing the Newco Operating Agreement on behalf of NS has full power and
authority to act for and bind the NS Member thereto; and
(iii) The NS Member is validly existing and in good standing
in its state of formation.
8. OWNER REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Each Owner represents and warrants to NS that, with respect to
each such Owner, the following representations and warranties are true and
correct as of the date hereof and shall be true and correct as of the Closing
Date with the same force and effect as if made at that time:
(i) It is duly formed and in good standing under the laws of
the state of its formation;
(ii) The execution and delivery of this Agreement and the
Newco Operating Agreement and the consummation by it of the transactions
hereunder and thereunder (A) have been duly authorized pursuant to the terms of
Owner's organizational documents and (B) will not conflict with, or result in a
breach of, any of the terms, conditions and provisions of its organizational
documents or any contract, agreement or instrument to which it is a party or by
which it is bound, or to which it or any portion of its Premises is subject;
(iii) It has full power and authority to enter into this
Agreement and the Newco Operating Agreement and to perform all of its
obligations hereunder and thereunder; no further action or approval will be
required in order to constitute this Agreement and the Newco Operating Agreement
as its binding and enforceable obligation and the Person
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executing on behalf of each Owner has full power and authority to act for and
bind such Owner in respect thereof;
(iv) It has not incurred any secured debt, direct or
contingent, other than as disclosed in the Report; such debt and any other debt
and/or guaranties will be paid off at Closing as required by Section 5(c)
hereof. It is not insolvent. It does not hold itself out to be responsible for
the debts of any other person or entity. It holds itself out to the public as a
legal entity which is separate and distinct from any other entity;
(v) It is validly existing and in good standing in the State
of New York; and
(vi) Owner is not a "foreign person" within the meaning of
section 1445 of the United States Internal Revenue Code of 1986, as amended, and
the regulations issued thereunder.
(b) At or prior to the Closing, each Owner will contribute its
interest in the Premises owned by it to two (2) separate limited liability
companies (each such limited liability company, "Newco"; all references herein
to Newco shall be deemed a reference to the limited liability company that will
be the owner of each Premises at Closing) in exchange for a 100% interest
therein. Immediately after such contribution, an affiliate of NS shall be
admitted as a 1% non-managing member of each Newco (the "NS Member"). At the
Closing, such NS Member and each Owner shall execute a limited liability company
operating agreement in respect of each Premises, in the form annexed hereto as
Exhibit H (the "Newco Operating Agreement" and, collectively, the "Newco
Operating Agreements").
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(c) Each Owner agrees that, from the date of formation of each Newco
through the Closing Date, each Newco shall not:
(i) engage in any business or activity other than the
ownership of the Premises owned by it and activities incidental to the
development thereof;
(ii) own any assets other than such Premises;
(iii) merge into or consolidate with any other entity or
dissolve or terminate or liquidate, transfer or otherwise dispose of all or
substantially all or any material portion of its assets unless such resulting
entity or transferee is a single purpose entity and complies with the other
provisions of this section;
(iv) fail to preserve its existence as a corporation, limited
liability company or limited partnership duly organized, validly existing and in
good standing (if applicable) under the laws of the State of its formation, or
amend, modify, terminate or fail to comply with the provisions of such entities
organizational documents, if such amendment, modification, termination or
failure to comply would adversely affect the ability of Owner to perform its
obligations hereunder;
(v) own any subsidiary or make any investment in any person or
entity;
(vi) commingle its assets with the assets of any other person
or entity;
(vii) incur any debt, secured or unsecured, direct or
contingent (including guaranteeing any obligation) other than as disclosed in
the Report (which debt will be paid off at Closing) or in connection with the
Loan;
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(viii) become insolvent or fail to pay its debts as the same
become due and payable or permit the total amount of its liabilities (including
contingent liabilities) to exceed the total fair saleable value of its assets or
fail to maintain adequate capital for the normal obligations reasonably
foreseeable in a business of its size and character and in light of its
contemplated business operations;
(ix) fail to maintain its records, books of account and bank
accounts separate and apart from those of any other person or entity;
(x) hold itself out to be responsible for the debts of any
other person or entity;
(xi) make any loans or advances under any loans to or issue
guaranties for the benefit of any other person or entity;
(xii) fail to hold itself out to the public as a legal entity
which is separate and distinct; or
(xiii) file or consent to the filing of any petition, either
voluntary or involuntary, to take advantage of any applicable insolvency,
bankruptcy, liquidation or reorganization statute, or make an assignment for the
benefit of creditors.
(d) Each Owner further covenants and agrees that (i) between the
date hereof and the date it forms a Newco, it will comply with all of the
covenants of Section 8(a) hereof and (ii) from and after the date of formation
each Newco through the Closing Date, each Owner will comply with clauses (iii),
(iv), (viii), (x), (xii) and (xiii) of Section 8(c) hereof and the terms of the
Operating Agreement.
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(e) (i) Each Owner covenants that, promptly after the date hereof,
it will seek to obtain estoppels (the "Tenant Estoppels") in the form attached
hereto as Exhibit C from all Tenants under the Leases and shall promptly after
receipt thereof deliver copies of all executed Tenant Estoppels to counsel for
NS. The information in the executed Tenant Estoppels must conform to the Rent
Roll (any such Tenant Estoppel, a "Conforming Tenant Estoppel"). Owner
acknowledges and agrees that Conforming Tenant Estoppels from (i) all Major
Tenants (as hereinafter defined) and (ii) eighty (80%) percent of the tenants in
the 44 Premises and eighty 80% percent of the tenants in the 417 Premises
(collectively, the "Required Tenants") shall be a condition precedent to NS'
obligation to close hereunder and that a Landlord Estoppel (as hereinafter
defined) shall not be deemed to be a substitute for such Conforming Tenant
Estoppels from the Required Tenants.
(ii) If any tenants (the "Non-Delivering Tenants") under the
Leases, other than Required Tenants, have not delivered Conforming Tenant
Estoppels, Landlord agrees that at Closing it shall deliver an estoppel
("Landlord's Estoppel") in the form attached hereto as Exhibit D in respect of
each Non-Delivering Tenant and that the representations and warranties in the
Landlord Estoppel shall survive the Closing. As Conforming Tenant Estoppels from
each Non-Delivering Tenant are received by NS, the Owner who delivered the
Landlord Estoppel in respect of the Lease to such Non-Delivering Tenant shall be
released from any liability in respect of such Landlord Estoppel to the extent
such tenant has effectively estopped itself on a specific matter. If there is a
misstatement in the Landlord Estoppel or the information in the Landlord
Estoppel does not conform to the Rent Roll, each Owner agrees that the tenant
under the Master Lease ("Master Tenant") shall have a set off right, as more
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specifically provided in the Master Lease. The provisions of this Section
8(e)(ii) shall survive the Closing.
(iii) As used herein, a "Major Tenant" shall be all tenants
(A) occupying retail or ground floor space at the Premises or (B) holding leases
for square footage aggregating an amount equal to a full floor or more of space
at either Premises (whether or not such tenants occupy, in fact, a full floor),
with the exception of Philips International, Inc., a tenant at the 417 Premises.
(f) If the Owners have been unable to deliver Conforming Tenant
Estoppels from the Required Tenants ("Non-Delivering Required Tenants") for each
of the Premises by the original Deadline Date, the Owners shall so notify NS and
NS shall have the option of (i) extending the Deadline Date until March 3, 1998
(for which no additional consideration shall be paid by NS) or (ii) waiving such
delivery as a condition precedent to NS' obligation for Closing, receiving in
lieu thereof a Landlord Estoppel in respect of the leases to such Non-Delivering
Required Tenants, as well as the Landlord Estoppel required by Section 8(e)
above. NS shall notify the Owners of its determination. If the Deadline Date has
been extended until March 3, 1998, and the Owners have been unable to deliver
Conforming Tenant Estoppels from the Required Tenants by such date, the Owners
shall so notify NS, in which event NS shall be entitled to the remedies set
forth in Section 5(b)(i) and (ii) with respect to an uncured title objection.
(g) As of the date hereof, Owners have delivered to NS a letter
authorizing the Managing Agent to cooperate with NS in any due diligence
activities relating to the Premises in the form attached hereto as Exhibit K
(the "Authorization Letter"), including,
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without limitation, delivery of information relating to all accounting and
financial matters in respect of the Premises.
(h) As of the date hereof, Owners have delivered a certification in
the form attached hereto as Exhibit L ("Owners' Certification"), certifying,
among other things, that the statement of income and expenses for the Premises
for the last two years ending December 31, 1996 fairly represent in all material
respects, the operations of the Premises during such period. On or before
February 3, 1998, Owners shall deliver the Owners' Certification for the year
ending December 31, 1997. If on or before February 3, 1998, the Owners have not
yet received confirmation (the "A.A. Confirmation") from A.A. that the audit has
been satisfactorily completed for both Premises, the Owners shall be entitled to
extend the Deadline Date for an additional thirty (30) days. Additionally, if
the Owners have been notified (the "Notice by A.A.") by Xxxxxx Xxxxxxxx LLP
("A.A.") that the Audit, as defined in the Owners' Certification, has revealed
that the statements of operations for the Premises do not present fairly, in all
material respects, the results of operations of the Premises in conformity with
generally accepted accounting principles, then the Owners shall correct the
statements of operations accordingly and reissue such Owners' Certification. If
the Owners have not reissued the Owners' Certification within 10 business days
of receipt of the Notice by A.A., or if the Owners have not received the A.A.
Confirmation and delivered same to NS by the Deadline Date, extended as provided
above, NS shall be entitled, in its sole discretion, to either (i) waive such
condition precedent and close as provided in this Agreement or (ii) terminate
this Agreement, at which time neither party shall have any obligations to or
recourse against the other party except for any provisions which expressly
survive the termination of this Agreement
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and Owner shall cause Escrow Agent to promptly return the Downpayment (which may
include any Additional Downpayment), together with interest thereon, to NS.
(i) The representations, warranties and covenants of Owner in this
Agreement shall survive until the Closing Date, except for the representations
and warranties in the Landlord Estoppel, the Lease Assignment Agreement, the
Security Deposit Assignment Agreement (substantially in the form attached hereto
as Exhibit E), which documents shall survive the Closing Date, with the remedies
for a breach thereof to be addressed in the Master Lease. If, at or prior to the
Closing, Owner is in material breach of any representation, warranty or
covenant, NS shall be entitled to the remedies set forth in Section 5(b)(i) and
(ii) with respect to an uncured title objection.
9. DOCUMENTS AND OTHER ITEMS TO BE DELIVERED AT CLOSING. The
following shall occur at the Closing:
(a) Each Owner shall deliver or cause to be delivered the following
(collectively, "Owner's Closing Documents") documents to NS or the Lender, as
appropriate, at Closing:
(i) the Loan Documents and the Loan Transaction Documents;
(ii) New York State and New York City Transfer Tax Returns
duly executed and completed;
(iii) a duly executed certification as to its non- foreign
status and a duly executed officer's certificate;
(iv) the Option Agreement, Master Lease and memoranda in
recordable form in respect of each such document in the forms attached as
exhibits thereto and
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any renewals or extensions thereof as may be required to provide record notice
of the relevant parties' rights under applicable law until the Option
Termination Date, as defined in the Option Agreement (collectively, the
"Memoranda");
(v) Originals of all Leases, Contracts, Permits, guarantees or
warranties in respect of the Premises or Personalty, any building plans,
specifications and drawings for the Premises and a complete set of keys for the
Premises and each of the spaces in the Premises, including the leased spaces, to
the extent same are in such Owner's possession;
(vi) Conforming Tenant Estoppels and Landlord Estoppels, in
compliance with the provisions of Section 8 hereof;
(vii) a check payable to NS for the amount of the Security
Deposits, any letters of credit delivered as a Security Deposit and the Security
Deposit Agreement;
(viii) a letter notice to each of the Tenants in the form
attached hereto as Exhibit G;
(ix) the Lock Box Agreement in the form attached hereto as
Exhibit F;
(x) the Affidavits and any other documents reasonably required
by the Title Company;
(xi) any UCC-1 financing statements required to be executed by
the Owners pursuant to the terms of the Newco Operating Agreements and in
connection with the Memoranda to evidence the interest of the Optionee under the
Option Agreement in, among other things, the Included Property and the
Intangible Property;
(xii) opinions from Owners' and each Newco's counsel, as the
case may be, for the benefit of NS, the Lender, the Master Tenant and any other
person or entity
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reasonably required by the Lender addressing (A) substantive consolidation under
applicable bankruptcy law, (B) power and authority of each Owner and each Newco
to execute and deliver the Master Lease, Option Agreement and the Newco
Operating Agreement, (C) the enforceability of the Master Lease, the Option
Agreement and the Newco Operating Agreement, (D) no conflict with Owner's or
Newco's organizational documents or third party agreements, and (E) any relevant
proceedings against each Newco or each Owner, all such opinions to be in form
and substance satisfactory to NS and its counsel;
(xiii) a fully executed duplicate original of each Newco
Operating Agreement;
(xiv) an Assignment of Leases and any subleases (the
"Assignment of Leases") in the form annexed hereto as Exhibit I;
(xv) the Rent Roll;
(xvi) the Original Notes or the Lost Note Material; (xvii) an
assignment of any rights under any tax certiorari proceeding, the benefits of
which will apply in whole or in part after the Closing Date, subject to
apportionment as provided in the Master Lease;
(xviii) evidence reasonably satisfactory to NS that(A) the
landlord's contributions in respect of any tenant improvement work for Leases at
the Premises, including, without limitation, Shem, Milsone & Xxxxx, Inc. in
respect of the 417 Premises, have been paid in full; (B) all landlord's work
with respect of any Leases at the Premises has been fully completed; and (C) the
extensive renovation work recently performed at the 417 Premises has
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been completed and that all required Permits and approvals have been received in
respect thereof;
(xix) the Late Tenant Certification (as defined in Article 19
of the Master Lease);
(xx) Assignment of Included Property for the benefit of the
Master Tenant, substantially in the form annexed hereto as Exhibit J;
(xxi) all Records, Plans, Contracts in Owners' possession;
(xxii) the Authorization Letter;
(xxiii) Owners' Certification;
(xxiv) A.A. Confirmation; and
(xxv) such other documents and instruments as may be
reasonably necessary or desirable to further carry out the purposes of this
Agreement.
(b) NS shall deliver or cause to be delivered to Owner the following
items and documents at Closing:
(i) the Option Agreement; Master Lease and the Memoranda;
(ii) New York State and New York City Transfer Tax Returns
duly executed and completed;
(iii) a duly executed [officer's] [member's] certificate;
(iv) the balance of Amount Payable, together with any
adjustments in favor of the Owners, and Loan Costs;
(v) the Security Deposit Agreement;
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(vi) the Lock Box Agreement together with the undated letter
to the tenants;
(vii) the Assignment of Leases;
(viii) an opinion from counsel to the NS Member in respect of
the due formation and valid existence of each Newco;
(ix) any UCC-1 financing statements required to be executed by
the NS Member pursuant to the terms of the Newco Operating Agreements; and
(x) such other documents and instruments as may be reasonably
necessary or desirable to further carry out the purposes of this Agreement.
(c) Each party shall be responsible for its respective costs and
expenses (including, without limitation, legal fees and due diligence costs) in
connection with the grant of the Option and Master Lease, except that all deed,
documentary, stamp, transfer, and similar taxes, if any, in connection with the
execution and delivery of the Option and Master Lease shall be paid one-half by
the Owners and one-half by NS. This paragraph shall survive the Closing.
(d) As used in this Agreement, "possession of Owner" shall be deemed
to include possession by each Owner and the Managing Agent and their respective
employees, agents, counsels and representatives.
10. DISCLAIMER; WAIVER OF CLAIMS. Prior to the date hereof, NS has
had an opportunity to examine conditions relating to the Premises, and except as
otherwise specifically stated in this Agreement, the grant of the option in
respect of the Premises as provided for herein is made on an "as is, where is,
with all faults" basis.
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11. DAMAGE AND DESTRUCTION; CONDEMNATION.
(a) If prior to Closing (i) the Premises or any portion thereof is
damaged or destroyed by fire or other casualty or (ii) condemnation or eminent
domain proceedings (or private purchase in lieu thereof) in respect of all or a
portion of the Property (a "Condemnation") shall be commenced or threatened by
any public or quasi-public authority having jurisdiction over all or any part of
the Property, the party with knowledge of such event shall promptly notify the
other party. In such event, the Closing shall be postponed until the parties can
determine the extent of damage or loss from such casualty or Condemnation.
(b) If prior to Closing there is a casualty or Condemnation other
than a Major Casualty or Major Condemnation (as hereinafter defined), the
Closing, postponed as provided above, shall occur and NS shall be (i) entitled
to compromise, settle and collect all the insurance proceeds in the case of an
insured casualty or Condemnation awards and (ii) obligated to restore the
Property using such proceeds, subject to the terms of the Master Lease. If the
amount of such proceeds or awards are not adequate for a complete restoration of
the Premises, or if there is a deductible, Owner agrees that there shall be a
reduction in the balance of the Amount Payable equal to such shortfall or
deductible.
(c) If prior to Closing there is a Major Casualty or Major
Condemnation (or if on account of a casualty or Condemnation the occupancy of
either of the Premises is reduced by four (4%) percent or more), then at NS'
option, it may either (i) proceed as provided in Section 11(b) above without
giving effect to the second sentence of said Section 11(b) or (ii) terminate
this Agreement, in which event the provisions of Section 13(a)(ii) shall apply.
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(d) For purposes of this Agreement, a "Major Casualty" or "Major
Condemnation" shall be deemed to be casualty or Condemnation in which the cost
of restoration (as reasonably determined by the parties or their consultants)
exceeds $2,000,000.
(e) The provisions hereof shall constitute an express agreement to
the contrary with respect to, and shall supersede the provisions of, Section
5-1311 of the New York General Obligations Law.
12. BROKERAGE.
(a) NS warrants and represents to Owner that NS has not dealt with
any broker or finder in connection with this transaction, except for Judmart
Realty Corp. ("Judmart") NS hereby agrees to indemnify and hold Owner harmless
from and against any and all claims, demands, causes of action, loss, costs and
expenses (including reasonable attorneys' fees and disbursements), or other
liability arising from or pertaining to any brokerage commissions, fees, or
other compensation, which may be due to any other broker, finder or persons
arising from any inaccuracy in the foregoing representation and warranty.
(b) Owner warrants and represents to NS that Owner has not dealt
with any broker or finder in connection with this transaction, except for
Judmart who will be paid in full by Owner pursuant to a separate agreement at
Closing. Owner hereby agrees to indemnify and hold NS harmless from and against
any and all claims, demands, causes of action, loss, costs and expenses
(including reasonable attorneys' fees and disbursements) or other liability
arising from or pertaining to Judmart or any brokerage commissions, fees, or
other compensation, which may be due to any other broker, finder or persons
arising from any inaccuracy in Owner's foregoing representation, warranty and
agreement.
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(c) The provisions of this Section 12 shall survive the Closing or
earlier termination of this Agreement.
13. REMEDIES.
(a) If any Owner willfully defaults in the performance of its
material obligations hereunder for any reason whatsoever (except for a breach of
a representation or warranty or a failure to cure a title objection, which
remedies are addressed in Sections 5(b) and 8(i), respectively, except as set
forth in clause (ii) below), NS as its sole and exclusive remedy shall have the
right (as determined by NS in its sole discretion) to either (i) seek to obtain
specific performance of such Owner's obligations hereunder, such Owner agreeing
that NS has no adequate remedy at law or (ii) terminate this Agreement, at which
time neither party shall have any obligations to or recourse against the other
party except for any provisions which expressly survive the termination of this
Agreement and Owner shall cause Escrow Agent to promptly return the Downpayment
(which may include any Additional Downpayment), together with interest thereon,
to NS.
Notwithstanding the foregoing, if any Owner shall fail to cure
a title objection which may be cured by the payment of money, as provided in
Section 5(c) hereof, NS shall be entitled to apply a portion of the Amount
Payable to satisfy such uncured title objection.
(b) If NS fails or refuses to perform its obligations hereunder, at
Closing, Owner shall be entitled, as its sole and exclusive remedy, to retain
the Downpayment (which may include any Additional Downpayment), together with
interest thereon, as its sole and
-35-
liquidated damages. Each Owner hereby specifically waives the right to specific
performance and damages.
14. INSPECTION. NS, Lender and their respective representatives will
be permitted to enter upon the Premises without the presence of a representative
of an Owner, unless such Owner otherwise elects in its sole discretion, upon
reasonable advance notice to Owner for the purpose of conducting topographical
surveys, perimeter surveys and other engineering, architectural and/or design
tests or plans, provided that NS shall indemnify and hold each Owner harmless
from and against any physical damage to the Premises (including, but not limited
to, reasonable legal fees incurred by such Owner if NS fails to reimburse Owner
for such physical damage) sustained by such Owner solely as a result of such
entry onto the Premises owned by such Owner.
15. NOTICES. Any notice, request, demand, statement, authorization,
approval or consent made hereunder shall be in writing and shall be hand
delivered or sent by Federal Express or other reputable national courier service
(a "Courier"), or by postage pre-paid registered or certified mail, return
receipt requested, and shall be deemed given (i) when
-36-
received or refused at the following addresses if hand delivered or sent by
Federal Express, or other reputable national courier service, and (ii) three (3)
business days after being postmarked and addressed as follows if sent by
registered or certified mail, return receipt requested:
If to NS:
NS 417/44 LLC
c/o NorthStar Capital Partners LLC
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Telecopier: (000) 000-0000
If to each Owner:
F.S. Realty Corp. and The 44th B.C. Realty Corp.
c/o Prince Management Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxx & Graff P.C.
000 Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx Xxxxx, Esq.
Telecopier: (000) 000-0000
-37-
Each party may change the address to which a notice must be sent or designate
additional parties to receive a copy of a notice, by notice to the other parties
given in the manner herein provided at least fifteen (15) days before such
change is to become effective. Notices may be sent by telecopier, with a hard
copy by courier or hand delivery and shall be deemed given as stated above.
16. APPORTIONMENTS. The parties shall make apportionments in the
same manner as is customary in the City of New York for transactions similar to
the ones contemplated by this Agreement and as provided in the Master Lease.
17. BINDING EFFECT. This Agreement may not be changed or terminated
orally nor shall any provision hereof be waived orally. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors
and permitted assigns.
18. ASSIGNMENT.
(a) This Agreement may not be assigned (directly or indirectly) by
either party without the prior written consent of the other party, which consent
may be withheld in such party's sole discretion, provided, however, NS shall
have the right to assign this Agreement to NorthStar Partnership, L.P., a
Delaware limited partnership, any entity in which such partnership owns a
controlling interest or any entity controlled, directly or indirectly, by W.
Xxxxxx Xxxxxxx or Xxxxx Xxxxxxxx.
(b) A condition to the effectiveness of any assignment is that (i)
the assignee shall assume the obligations of the assignor under this Agreement
and (ii) the assigning party shall give the other party notice of such
assignment, together with a fully executed counterpart of the instrument of
assignment and assumption executed by the assigning party and its
-38-
assignee, within ten (10) days after the execution thereof and not less than ten
(10) days prior to the Closing Date. Upon satisfaction of the foregoing
conditions, any permitted assignee shall have all the rights and obligations of
the assigning party hereunder and the assigning party shall thereupon,
automatically and without the execution of further instruments or documents, be
relieved and released of and from all of the assigning party's obligations
hereunder.
19. CHOICE OF LAW. This Agreement shall be governed by and construed
under the internal laws of the State of New York.
20. SURVIVAL. Except to the extent specifically provided herein,
none of the obligations under this Agreement shall survive the Closing.
21. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute the same instrument.
22. FURTHER ASSURANCES. From time to time, each party hereto shall,
within five (5) Business Days after a request therefor by the other party and at
such party's sole cost and expense, furnish such additional consents and other
instruments and information as may be reasonably required to implement the
provisions of this Agreement and the intentions of the parties or to confirm or
perfect any right to be created or transferred hereunder. The Owners have
delivered on the date hereof certain agreements and other information in respect
of the Premises (the "New Information"), which New Information will be reviewed
by NS as part of its due diligence review. If such review indicates that the New
Information is either (a) materially inconsistent with prior information
delivered to NS or (b) materially adversely affects NS' intended investment in
the Premises, and provided NS shall so notify the Owners on or before five (5)
business days from the date hereof, NS shall have the right to treat such
-39-
matter as an uncured objection to title and shall be entitled to the remedies
set forth in Section 5(b) above in connection therewith.
23. INVALIDITY OF PARTICULAR PROVISION. If any term of this
Agreement or the application thereof to any person or circumstance shall to any
extent be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Agreement shall be valid and be enforced to
the fullest extent permitted by law, with the parties hereto covenanting
nonetheless to negotiate in good faith, in order to agree the terms of a
mutually satisfactory provision to be substituted for the term or provision
which is void or unenforceable.
-40-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
OWNER:
F.S. REALTY CORP.
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
and
THE 44th B.C. REALTY CORP.
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
NS:
NS 417/44 LLC
By: /s/ W. Xxxxxx Xxxxxxx
------------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Sole Member
Solely for the purpose of agreeing to the provisions in Exhibit B hereof:
XXXXXXX, XXXXX & XXXXX, P.C.
By: /s/ Xxxxxxxx Xxxxx, Esq., a partner
------------------------
Name:
-41-
EXHIBIT A
Description of 417 Land
[Legal Description], together with all of Owner's rights, title and
interest in and to (i) all strips, gores, easements, rights of way, privileges,
appurtenances, air rights and development rights and other rights pertaining to
said Land and (ii) any land lying in the bed of any street, road or avenue,
opened or proposed, public or private, in front of or adjoining said Land to the
center line thereof.
X-0
XXXXXXX X-0
Description of 44 Land
[Legal Description], together with all of Owner's rights, title and
interest in and to (i) all strips, gores, easements, rights of way, privileges,
appurtenances, air rights and development rights and other rights pertaining to
said Land and (ii) any land lying in the bed of any street, road or avenue,
opened or proposed, public or private, in front of or adjoining said Land to the
center line thereof.
A-1-1
EXHIBIT B
Escrow Provisions
(a) The Downpayment shall be deposited with Xxxxxxx, Xxxxx & Xxxxx
P.C. ("Escrow Agent"). Escrow Agent shall pay the Downpayment to NS or Owner,
together with the interest thereon, at the Closing on joint written instructions
of Owner and NS or otherwise in accordance with this Agreement. All interest
earned on the Downpayment shall be paid to the party entitled to the
Downpayment. The Downpayment shall be invested by Escrow Agent in US Treasury
Bills or Notes unless otherwise instructed in writing by Owner and NS to invest
the Downpayment in a different manner acceptable to Escrow Agent. Owner and NS
shall complete and execute the W-9 form which is attached as Exhibit M to the
Agreement, simultaneously with the execution of this Agreement.
(b) The parties hereto agree that:
(i) The duties of Escrow Agent are only as herein specifically
provided, and except for the provisions of Section (d) hereof, are purely
ministerial in nature, and Escrow Agent shall incur no liability whatever except
for its willful misconduct or gross negligence;
(ii) Escrow Agent shall not be liable or responsible for the
collection of the proceeds of the check(s) (if applicable) for the Downpayment;
(iii) In the performance of its duties hereunder, Escrow Agent
shall be entitled to rely upon any document, instrument or signature believed by
it to be genuine and signed by any of the other parties or their successors;
(iv) Escrow Agent may assume that any person purporting to
give notice or instructions in accordance with the provisions hereof has been
duly authorized to do so;
(v) Escrow Agent shall not be bound by any modification,
cancellation or rescission of this Agreement unless in writing and signed by
Owner and NS;
(vi) Owner and NS shall and hereby do jointly and severally
indemnify Escrow Agent and hold it harmless from and against any loss,
liability, cost or expenses incurred in connection herewith, including, without
limitation, reasonable attorneys' fees and disbursements, incurred without
willful misconduct or gross negligence on the part of Escrow Agent, arising out
of or in connection with its acceptance of, or the performance of its duties and
obligations under, this Agreement, as well as the reasonable costs and expenses
of defending itself against any claim or liability arising out of or relating to
this Agreement; and
(vii) Owner and NS each hereby release Escrow Agent from any
liability for or in connection with any act done or omitted to be done by Escrow
Agent in good faith in the
B-1
performance of its duties hereunder. Without limiting the foregoing, the parties
agree that Escrow Agent shall not be responsible for any penalties, or loss of
principal or interest or any delays in the withdrawal of the funds which may be
imposed as a result of the making or redeeming of the Downpayment pursuant to
the instructions of the parties hereto incurred without willful misconduct or
gross negligence on the part of Escrow Agent. Nor shall Escrow Agent be liable
for any loss or impairment of funds while those funds are in the course of
collection or while those funds are on deposit if such loss or impairment
results from the failure, insolvency or suspension of the financial institution
in which the funds are deposited.
(c) If at any time Escrow Agent shall receive a certificate of
either Owner or NS (the "Certifying Party") to the effect that: (I) the other
party (the "Other Party") has defaulted under this Agreement or that this
Agreement has otherwise been terminated or canceled; (ii) a copy of the
certificate and a statement in reasonable detail of the basis for the claimed
default, termination or cancellation was mailed as provided herein to the Other
Party prior to or contemporaneous with the giving of such certificate to Escrow
Agent; and (iii) in the case of a claimed default, to the knowledge of the
Certifying Party, the claimed default has not been cured, then Escrow Agent
shall promptly send a copy of such certificate to the Other Party and unless
Escrow Agent shall have received contrary instructions from the Other Party
within ten (10) business days of Escrow Agent's mailing of said certificate
(time being of the essence with respect to this ten (10) business day period),
Escrow Agent shall, within ten (10) business days of the expiration of such ten
(10) business day period, deliver the Downpayment to the Certifying Party and
thereupon be relieved of and discharged and released from any and all liability
hereunder and with respect to the Downpayment. If Escrow Agent shall receive
contrary instructions from the Other Party within ten (10) business days of
Escrow Agent's sending of said certificate (time being of the essence with
respect to this ten (10) business day period), Escrow Agent shall not so deliver
the Downpayment but shall hold or deposit the same in accordance with the terms
hereof.
(d) Escrow Agent is acting as stakeholder only with respect to the
Downpayment. If there is any dispute as to whether Escrow Agent is obligated to
deliver the Downpayment or as to whom said Downpayment is to be delivered,
Escrow Agent shall not be required to make any delivery, but in such event
Escrow Agent may hold the same until receipt by Escrow Agent of written
authorization signed by Owner and NS directing the disposition of the
Downpayment and any interest accrued thereon until a final determination of the
rights of the parties in an appropriate proceeding. If such written
authorization is not given, or proceedings for such determination are not begun
within thirty (30) days after a dispute arises and diligently continued, Escrow
Agent may bring an appropriate action or proceeding for leave to deposit the
Downpayment and any interest accrued thereon in a court of competent
jurisdiction pending such determination. Escrow Agent shall be reimbursed for
all reasonable costs and expenses of such action or proceeding including,
without limitation, attorneys' fees and disbursements, by the party determined
not be entitled to the Downpayment, or if the Downpayment is split between Owner
and NS, such costs incurred by Escrow Agent shall be divided between and paid by
Owner and NS in inverse proportion based upon the amount of Downpayment received
by each. Upon making
B-2
delivery of the Downpayment and interest accrued thereon in the manner provided
in this Agreement, Escrow Agent shall have no further liability hereunder.
(e) Escrow Agent is acting, and may continue to act, as counsel to
NS in connection with the subject transaction, whether or not the escrowed funds
are being held by Escrow Agent or have been delivered to a substitute impartial
party or a court of competent jurisdiction.
B-3
EXHIBIT C
FORM OF TENANT ESTOPPEL
To: [Present landlord], its successors and assigns (collectively, "Landlord")
The undersigned hereby certifies and agrees as follows:
1. The undersigned is the tenant ("Tenant") under that certain Lease (the
"Lease")by and between Landlord [or, _________________, Landlord's predecessor
in interest] and Tenant [or, _______________, Tenant's predecessor in interest],
dated _____________, 19__ affecting space in the building (the "Building") known
as ________________, located at _______________, New York, New York ( the
"Land"; the building and the Land, collectively, the "Premises").
2. The Lease commenced on ___________________________.
3. The Lease expires on ___________________________________. Tenant has no
option or other right to extend the term of the Lease beyond __________________.
4. Tenant has accepted and is occupying the entire premises demised to it
under the Lease (the " Demised Premises") and all improvements to the Demised
Premises required by the Lease have been completed by Landlord in accordance
with the Lease.
5. Tenant has not paid rent or additional rent beyond the current month
and agrees not to pay rent or additional rent more than one month in advance at
any time.
6. Rent payable in the amount of $_________________ per month has been
paid through ____________________________.
7. There are no defenses to or offsets against the enforcement of the
Lease or any provision thereof by the Landlord.
8. Tenant has deposited $_______________ as a security deposit with
Landlord pursuant to the terms of the Lease. The form of this security deposit
is cash unless otherwise specified (i.e., letter of credit): ___________________
__________________________
9. Landlord has not agreed to grant Tenant any free rent or rent rebate or
to make any contribution to tenant improvements, except as follows: ____________
________________________________________________________________________________
_______________________________________________________________________________.
C-1
10. Landlord has not agreed to reimburse Tenant for or to pay Tenant's
rent obligation under any other lease.
11. Tenant has not advanced any funds for or on behalf of Landlord for
which Tenant has a right to deduct from or offset against future rent payments.
12. Neither Tenant nor, to the best knowledge of Tenant, Landlord is in
default under the Lease.
13. The Lease is the entire agreement between the Landlord and Tenant
pertaining to the Demised Premises.
14. The Lease is in full force and effect and has not been amended,
modified or supplemented except as follows: ____________________________________
________________________________________________________________________________
_______________________________________________________________________________.
15. Tenant does not have any right or option for additional space in the
Building except as follows:_____________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
16. Tenant does not have any purchase option or first refusal right with
respect to the Building except as follows:______________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Tenant acknowledges that (A) Landlord, its successors and assigns, and any
lessee of the entire Premises may rely on this Certificate and (B) any holder of
a fee or leasehold mortgage may rely on this Certificate in making a loan, now
or in the future.
[ ]
By:_____________________________________
X-0
XXXXXXX X
Xxxx xx Xxxxxxxx Xxxxxxxx
X-0
EXHIBIT E
Security Deposit Assignment Agreement
Summary of Terms:
(1) Owner shall represent and warrant that the Security Deposits being assigned
to NS, as tenant under the Master Lease, represent all of the security deposits
required to be held by Owner under the Leases, without diminution or application
since delivery by a tenant under its Lease, as such Security Deposit may have
been increased from time to time as may be required by the terms of the
applicable lease.
(2) NS shall covenant that it shall indemnify Owner in respect of the security
deposits so assigned.
(3) Owner shall transfer to NS all letters of credit delivered as security by
any tenant, provided same may be transferred; otherwise new letters of credit or
cash security shall be obtained from the tenant or the account parties, as the
case may be, by the Owners.
E-1
EXHIBIT F
Lockbox Agreement
F-1
EXHIBIT G
Notice To Tenants
G-1
EXHIBIT H
Form of Newco Operating Agreement
H-1
EXHIBIT I
Form of Assignment of Leases
An agreement, whereby (i) each Owner shall assign, transfer and set over
to the Master Tenant all of such Owner's right, title and interest, as landlord,
in and to all of the Leases and any sublease then in force in respect of the
Premises and shall represent and warrant that true, correct and complete copies
of all leases, licenses and occupancy agreements have been delivered to Master
Tenant, and (ii) the Master Tenant shall assume and agree to perform such
Owner's obligations under the same which are to be performed from and after the
Closing, except as specifically provided for herein.
I-1
EXHIBIT J
Form of Assignment of Included Property
The assignment will be (i) to the Master Tenant and (ii) for the term of
the Master Lease and will cover all of the tangible and intangible property in,
on, attached to, appurtenant to, or used in the operation or maintenance of the
Land or the Building and not otherwise covered by the Master Lease and shall
include, without limitation, the following:
1. the Permits in Owner's possession and all of Owner's right, title and
interest in and to all other Permits.
2. all architectural, mechanical, engineering and other plans and
specifications relating to the Premises (collectively, the "Plans"), Contracts
and Records in Owner's possession and all of its right, title and interest in
and to any other Plans, Contracts and Records.
3. all of Owners' right, title and interest in and to all trademarks,
logos, trade and business names, good will and other proprietary rights and
intangible property relating to the ownership, use, operation and management of
the Property (collectively, the "Intangible Property").
4. any condemnation awards or insurance proceeds as provided in Article 11
of the Agreement.
5. all Receivables.
J-1
EXHIBIT K
Authorization Letter
F.S. Realty Corp.
and
The 44th B.C. Realty Corp.
c/o Prince Management Corp.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
January 7, 1998
X.X. Xxxxx Management Corp.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 000 Xxxxx Xxxxxx
and
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
(collectively, the "Premises")
Ladies and Gentlemen:
The undersigned, as the owners of the Premises, hereby authorize
you, as the present managing agent for the Premises, to cooperate with any
requests that may be made by NorthStar Capital Partners, LLC, their
representatives, agents, advisors and counsel (including, without limitation,
Xxxxxx Xxxxxxxx LLP) in respect of any and all past and present matters
(financial and otherwise) relating to the Premises and to deliver any
information in your possession or control or available to you that may be
reasonably requested by them in connection therewith.
Very truly yours,
F.S. Realty Corp.
By:_________________________________
Name:
Title:
The 44th B.C. Realty Corp.
By:_________________________________
Name:
Title:
EXHIBIT L
Owner's Certification
F.S. Realty Corp.
and
The 44th B.C. Realty Corp.
c/o Prime Management Corp.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(Date)
Xxxxxx Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 000 Xxxxx Xxxxxx and
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx (collectively, the "Premises")
Dear Sirs:
In connection with your audit of the statements of operations of the Premises
for each of the two years in the period ended December 31, 1996 (the "Audit"),
for the purpose of expressing an opinion as to whether these statements present
fairly, in all material respects, the results of operations of the Premises in
conformity with generally accepted accounting principles, we confirm, to the
best of our knowledge and belief, the following representations made to you
during your audit:
1. We are responsible for the fair presentation of the statement of
operations in conformity with generally accepted accounting
principles.
2. We have made available to you all financial records and related
data.
3. There have been no irregularities involving management or employees
who have significant roles in the internal control structure.
4. The accounting records underlying the financial statements
accurately and fairly reflect, in reasonable detail, the
transactions of the premises for the periods.
Very truly yours,
F.S. Realty Corp.
By:______________________
The 44th B.C. Realty Corp.
By:______________________
EXHIBIT M
W-9 FORM
EXHIBIT N
Exceptions to Non-Recourse
Owner shall be personally liable at all times for (i) the
misapplication of (a) any insurance proceeds paid under any insurance policies
by reason of damage, loss, or destruction to the Premises or (b) proceeds or
awards resulting from condemnation or other taking in lieu of condemnation of
any portion of the Premises or (c) tenant security deposits, but solely to the
extent any of the foregoing items have actually been received and misapplied by
Owner, and (ii) any damages to Lender resulting from any fraud or intentional
misrepresentation made by Owner.
Schedule 1
Leases, Security Deposits; Rent Roll
Schedule 2
Contracts
Schedule 3
Permits
Schedule 4
Insurance Policies
Schedule 5
JEWISH HOLIDAYS
Rosh Hashanah (Both Days)
Yom Kippur
Succot (First 2 Days)
Shmini Atzeret
Simchat Torah
Passover (First 2 Days and Last 2 Days)
Shavuot (Both Days)
Schedule 6
Tax Certiorari Proceeding
00 Xxxx 00xx Xxxxxx: 1996-1997 and 1997-1998 tax years
000 Xxxxx Xxxxxx: 1994-1995, 1995-1996, 1996-1997 and 1997-1998 tax years
Schedule 7
Records
Records shall include, but not be limited to, the following:
1. Reimbursement Statements (porters, wage, taxes and electric)
for all tenants.
2. Statement of income and expenses for the Premises for each of
the three years ended December 31, 1997 (the "Audit Period")
(1995 and 1996 statements to be delivered no later than
January 14, 1998 and 1997 statements to be delivered no later
than February 3, 1998.
3. General ledgers and other books of original entry related to
the Premises for the Audit Period.
4. Bank statements, invoices, cancelled checks and other
documentation supporting the revenue and expenses of the
Premises for the Audit Period.
5. True, correct and complete leases for all tenants of the
Premises during the Audit Period. Identification of any other
agreements granting possessory interests in the Premises.
6. Escalation Statements for every tenant at the Premises for the
most recent billing period (January 1998) (to be delivered no
later than January 14, 1998).
7. Balance Sheet showing receivables aging for 30, 60 and 90
days.
Schedule 8
Management Termination Fee
NONE
Schedule 9
List of Receivables
Schedule A
Form of Master Lease
Schedule B
Form of Option Agreement
