EXHIBIT 10-H
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(J-X)
SALE-PURCHASE AGREEMENT
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BETWEEN
ROYAL EXECUTIVE PARK I
ROYAL EXECUTIVE PARK II
AND
ROYAL EXECUTIVE PARK III,
SELLERS,
AND
RECKSON OPERATING PARTNERSHIP, L.P.
BUYER.
PREMISES
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ROYAL EXECUTIVE PARK PHASES 1, 2 AND 3
RYE BROOK, NEW YORK
DATED AS OF DECEMBER 5, 1997
Handsman & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
SALE-PURCHASE AGREEMENT (the "Agreement"), made as of the 5th day of
December, 1997, among ROYAL EXECUTIVE PARK I ("REP I"), ROYAL EXECUTIVE
PARK II ("REP II") and ROYAL EXECUTIVE PARK III ("REP III"), each a general
partnership formed under the laws of the State of New York (individually, a
"Seller" and collectively, the "Sellers"), having an office c/o London &
Leeds Development Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, and RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership, having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ("Buyer").
W I T N E S S E T H :
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1. SALE-PURCHASE.
In consideration of the mutual covenants and agreements hereinafter
set forth, each Seller agrees to sell and convey to Buyer, and Buyer agrees
to purchase from Sellers, all of such Seller's right, title and interest in
and to (a) those certain plots, pieces or parcels of land located in the
Village of Rye Brook, Towns of Rye and ▇▇▇▇▇▇▇▇, County of Westchester and
State of New York and partly in the Town of Greenwich, County of Fairfield
and State of Connecticut, more particularly described on Exhibits "A-1"
through "A-3" annexed hereto and made a part hereof (collectively, the
"Land"); (b) all easements, rights of way, privileges, permits,
governmental grants of authority, appurtenances and other rights pertaining
thereto; (c) all buildings and improvements thereon (collectively, the
"Buildings"), and all fixtures, machinery, personal property and equipment
used in connection therewith which are owned by such Seller and currently
located on the Land or in the Buildings, except trade fixtures and property
owned by space or other tenants, if any; and (d) all right, title and
interest, if any, of such Seller in and to any land lying in the bed of any
street, road or avenue opened or proposed, public or private, in front of
or adjoining the Land to the center line thereof (the Land, the Buildings
and other rights, improvements and property heretofore mentioned being
hereinafter collectively referred to as the "Property")(the portion of the
Property on the Land described on Exhibit "A-1" is hereinafter referred to
as "Phase 1", the portion of the Property on the Land described on Exhibit
"A-2" is hereinafter referred to as "Phase 2", the portion of the Property
on the Land described on Exhibit "A-3" is hereinafter referred to as "Phase
3") .
2. PURCHASE PRICE.
A. The purchase price for the Property (the "Purchase Price") is
EIGHTY-ONE MILLION UNITED STATES DOLLARS ($81,000,000.00), payable as
follows:
(i) TWO MILLION DOLLARS ($2,000,000.00) (the "Initial
Downpayment"), simultaneously with the execution and delivery of this
Agreement, at the option of Buyer, either by (1) a good certified or
official bank check, payable to the order of Commonwealth Land Title
Insurance Company as Escrow Agent ("Escrow Agent"), or (2) federal funds
wire transfer of immediately available funds to a bank account designated
by Escrow Agent;
(ii) TWO MILLION DOLLARS ($2,000,000.00) (the "Additional
Downpayment"), not later than the expiration of the Review Period
(hereinafter defined), time being of the essence, at the option of Buyer,
either by (1) a good certified or official bank check, payable to the order
of Escrow Agent, or (2) federal funds wire transfer of immediately
available funds to a bank account designated by Escrow Agent (the Initial
Downpayment and, once paid to the Escrow Agent, the Additional Downpayment
are hereinafter referred to as the "Escrow Deposit"); and
(iii) SEVENTY-SEVEN MILLION DOLLARS ($77,000,000.00) (the
"Balance of the Purchase Price"), on the Closing Date (hereinafter
defined), by federal funds wire transfer of immediately available funds to
a bank account or accounts designated by Sellers.
B. The Escrow Deposit shall be held and disbursed by the Escrow
Agent in accordance with the provisions of Paragraph 3 of this Agreement.
For purposes hereof, the Escrow Deposit, together with all interest earned
thereon, is hereinafter collectively referred to as the "Deposit".
C. The aggregate amount of the Purchase Price shall be allocated
among Phases 1, 2, and 3 comprising the Property as follows:
Phase 1 $37,000,000
Phase 2 $36,000,000
Phase 3 $ 8,000,000
Notwithstanding the foregoing allocations, the Property will be purchased
and sold only in its entirety and no individual Phase or Phases thereof may
be separately purchased.
3. ESCROW.
The Deposit shall be held by the Escrow Agent, in trust, on the terms
hereinafter set forth:
A. The Escrow Agent shall deposit the Escrow Deposit in treasury
bills, treasury backed repurchase agreements or as otherwise directed in
writing by Sellers and Buyer.
B. The Escrow Agent shall not commingle the Deposit with any other
funds of the Escrow Agent or others and shall promptly advise Buyer and
Sellers of the number of any bank account in which the Escrow Deposit has
been deposited.
C. If the Closing takes place under this Agreement (the "Closing"),
then, on the Closing Date, the Escrow Agent shall deliver the Deposit to,
or upon the instructions of, Sellers. In such event, any interest earned on
the Escrow Deposit shall be credited against the Balance of the Purchase
Price due from Buyer hereunder.
D. If this Agreement is terminated in accordance with the terms
hereof, then the Escrow Agent shall pay the Deposit to, or upon the
instructions of, the party entitled thereto in accordance with the
provisions of this Agreement.
E. If the Closing does not take place under this Agreement by reason
of the failure of either party to comply with its obligations hereunder,
then the Escrow Agent shall pay the Deposit to the party entitled thereto
in accordance with the provisions of this Agreement.
F. It is agreed that the duties of the Escrow Agent are only as
herein specifically provided, and, subject to the provisions of
subparagraph G below, are purely ministerial in nature, and that the Escrow
Agent shall incur no liability whatever except for willful misconduct or
gross negligence, as long as the Escrow Agent has acted in good faith.
Sellers and Buyer each release the Escrow Agent from any act done or
omitted to be done by the Escrow Agent in good faith in the performance of
its duties hereunder. Each of the Sellers and Buyer jointly and severally
agrees to indemnify and hold the Escrow Agent harmless from any and all
costs, expenses, claims or actions which may be incurred or asserted by or
against the Escrow Agent, including without limitation claims or actions by
any of them (except to the extent resulting from the Escrow Agent's willful
misconduct or gross negligence).
G. The Escrow Agent is acting as a stakeholder only with respect to
the Deposit. If there is any dispute as to whether the Escrow Agent is
obligated to deliver the Escrow Deposit or interest earned thereon or as to
the party whom said Escrow Deposit and interest earned thereon is to be
delivered, the Escrow Agent shall not make any delivery, but in such event
the Escrow Agent shall hold same until receipt by the Escrow Agent of an
authorization in writing, signed by all the parties having interest in such
dispute, directing the disposition of same, or in the absence of such auth-
orization the Escrow Agent shall hold the Deposit until the 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 of the Closing Date and
diligently continued, the Escrow Agent may, but is not required to, bring
an appropriate action or proceeding for leave to deposit the Deposit in
court pending such determination. The Escrow Agent shall be reimbursed for
all costs and expenses of such action or proceeding including, without
limitation, reasonable attorneys' fees and disbursements, by the party
determined not to be entitled to the Deposit. Upon making delivery of the
Deposit in the manner herein provided, the Escrow Agent shall have no
further liability hereunder.
H. The Escrow Agent has executed this Agreement in order to confirm
that the Escrow Agent will hold the Deposit in escrow, pursuant to the
provisions hereof.
4. PERMITTED EXCEPTIONS.
The Property shall be conveyed to Buyer subject to the following
(collectively, the "Permitted Exceptions"):
(i) Zoning regulations and ordinances, municipal building
restrictions, environmental quality or land use restrictions or regulations
and all other laws, ordinances, regulations, restrictions or other action
of any public authority or other body having or exercising jurisdiction
over the Property;
(ii) Consents by Sellers or any former owner of the Property for the
erection of any structure or structures on, under or above any street or
streets on which the Property may abut;
(iii) Any state of facts as would be shown by an accurate
current survey or inspection of the Property, provided the same do not
interfere with or prohibit the use of the Property as presently utilized,
except that to the extent that improvements (a) on any parcel adjacent to
the Property shall encroach upon the Property, such encroachment shall not
be or be deemed to be an objection to title if such encroachment does not
materially interfere with the present use and maintenance of the Property;
and (b) on the Property shall encroach on any adjacent parcel or any street
abutting the Property, such encroachment shall not be or be deemed to be an
objection to title if the Title Company (as hereinafter defined) shall
insure (without additional cost to Buyer) that such encroachment may remain
as long as the relevant Building shall stand;
(iv) Covenants, restrictions, reservations, conditions, easements
and agreements of record, as set forth on Exhibits ▇-▇, ▇-▇ and B-3 hereof
or otherwise furnished to Buyer during the Review Period;
(v) Utility and telephone company rights and easements of record to
maintain, install or remove poles, wires, cables, pipes, boxes and other
facilities and equipment in, over and upon the Property;
(vi) The lien of franchise taxes of any corporation in the chain of
title to the Property, or the lien of any judgment, transfer tax,
inheritance tax, estate tax or any other similar lien, provided the Title
Company will, at the Closing, insure (at no additional cost to Buyer) Buyer
against collection of such judgment, taxes or liens from the Property;
(vii) Rights of tenants, licensees or other permittees of the
Property set forth in Exhibit "F" annexed hereto (and subtenant and
licensees thereof) under the terms and conditions of all leases, options or
rights of first refusal to purchase and the other agreements affecting any
space in the Property (collectively, the "Leases");
(viii) Easements that affect any land in the bed of any street,
road, or avenue, opened or proposed, in front of or adjoining the Property,
provided same are not violated by the existing Buildings and the present
use thereof;
(ix) Liens for taxes not yet due and payable, water charges, sewer
rents and other governmental charges for which adjustment is to be made at
the Closing;
(x) Rights and easements for the installation, maintenance and
replacement of water mains and sewer lines and facilities and equipment in,
over and upon the Property, provided same are not violated by existing
Buildings and the present use thereof;
(xi) Mechanic's liens arising out of work performed or materials
furnished to any tenants of the Buildings of which Sellers have no
knowledge as of the date hereof;
(xii) Financing statements and agreements made by, or judgments
entered against, any tenant of the Buildings of which Sellers have no
knowledge as of the date hereof;
(xiii) Any violations of law or municipal ordinances, orders or
requirements which have been noted in or issued by, the departments of
building, fire, labor, health or other Federal, State, County or Municipal
departments having jurisdiction against or affecting the Property and any
other violations, whether or not of record; and
(xiv) the matters set forth on Exhibit "B-1" through "B-3" annexed
hereto and made a part hereof.
5. CLOSING DATE.
The Closing shall take place at 10:00 A.M. at the offices of Handsman
& ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on
December 19, 1997, or on such other date fixed by Sellers in accordance
with the provisions of Paragraph 10 hereof (each of the aforesaid dates, as
adjourned by mutual agreement of the parties, being referred to herein as
the "Closing Date"). By giving notice to the other party, either party
may adjourn the Closing Date to a date not more than three (3) business
days after such scheduled Closing Date. Time shall be of the essence as to
Buyer's obligation to close title hereunder by the aforesaid Closing Date,
as same may be so adjourned. The respective attorneys of the parties
hereto, as herein identified, are hereby authorized to agree (on behalf of
their respective clients) in writing to adjournments of the Closing.
6. VIOLATIONS.
Buyer agrees that title to the Property shall be conveyed subject to,
and Sellers shall have no obligation in respect of, any and all violations
of law or municipal ordinances, orders or requirements, whether or not of
record. Upon request made by Buyer, Sellers shall furnish Buyer with any
required authorization to make violation searches.
7. REVIEW PERIOD.
A. PROPERTY DUE DILIGENCE SCHEDULE. Buyer acknowledges that it has
completed and approved its local market reviews and studies. Buyer shall
have until 5:00 p.m., eastern standard time, on December 15, 1997 (the
"Review Period"), time being of the essence, to complete its other reviews
and inspections of the Property, which reviews and inspections may include
an analysis of, but not limited to (i) the tenant leases, contracts, survey
and title documents affecting the Property, (ii) using non-invasive tests
and observations, the environmental and physical condition of the Property
and the Property's compliance with applicable law and (iii) the financial
condition of the Property. On or before the end of the Review Period (time
being of the essence), Buyer either (x) will notify Sellers and Escrow
Agent in writing that Buyer elects to proceed with this transaction or (y)
will notify Sellers and Escrow Agent in writing that Buyer for any reason
whatsoever is not interested in purchasing the Property, whereupon in the
case of the failure to receive the notice in clause (x) on or before the
end of the Review Period or the receipt of the notice in clause (y) on or
before the end of the Review Period, the Escrow Agent shall immediately
return the Deposit to Buyer and except as otherwise provided herein neither
party shall have any further rights or obligations hereunder. If Buyer
fails to deliver such notice to Sellers prior to the expiration of the
Review Period time being of essence, then Buyer shall conclusively be
deemed to have terminated this Agreement and such failure to notify shall
have the same force and effect as if actual written notice to terminate
this Agreement were received by Sellers. Buyer acknowledges that Sellers
have informed it of certain existing environmental conditions at the
Property, including without limitation the matters set forth in that
certain project report numbered T-1775 (the "Report"), dated June 30, 1997,
prepared by TETHYS Consultants, Inc., of Harrisburg Pennsylvania and
certain incidents of oil spillage, Buyer understands that, if Buyer elects
to proceed, Buyer shall assume and indemnify Sellers from and against all
loss, cost, damage, liability and expense, including, without limitation,
reasonable attorneys' fees and disbursements, arising from or relating to
the remediation (or a request for remediation by any governmental
authority) of the matters contained in such Report or with respect to such
oil spillage incidents (and any other environmental matters of which Buyer
has received written notice prior to the expiration of the Review Period or
any other environmental matters arising after the Closing), provided,
however, that if Sellers (as opposed to a third party) shall notify Buyer
of any such additional environmental matters later than December 12, 1997,
then the Review Period shall be extended until December 17, 1997 and the
Closing shall occur within four (4) business days thereafter, as designated
by Buyer (time being of the essence as to such dates), provided, however,
that either party may adjourn the Closing by notice to the other party for
not more than three (3) business days thereafter for any reason whatsoever,
time being of the essence as to Buyer's obligation to close by such date.
Buyer covenants that it will diligently perform and prosecute to completion
as soon as reasonably practicable following the Closing, at its sole cost
and expense, all work necessary to remedy the environmental conditions set
forth in the Report or in connection with the aforesaid oil spillage
incidents in accordance with applicable laws and regulations and to deliver
documentary evidence of such compliance to Sellers, in form reasonably
satisfactory to Sellers and Sellers' consultants. Buyer will commence its
due diligence promptly upon the receipt of a fully executed counterpart of
this Agreement and diligently work toward its completion. Buyer hereby
waives any and all rights of contribution or other rights or remedies
against Sellers under the Comprehensive Environmental Response Compensation
and Liability Act or any other applicable environmental laws, rules or
regulations. Buyer shall promptly notify Sellers if at any time during the
Review Period Buyer determines that Buyer is not interested in purchasing
Property. If Buyer shall determine to not proceed with this transaction as
aforesaid, then upon written request of Sellers, Buyer shall promptly
provide Sellers with complete copies of all materials arising from Buyer's
due diligence activities other than Buyer's internally generated analyses,
reports and memoranda. Buyer agrees to indemnify and hold harmless Sellers
from and against all loss, cost, damage, expense or other liability
resulting from the conduct of Buyer's inspections, tests, investigations or
other due diligence, which indemnity shall survive the termination of this
Agreement.
B. INSPECTION. Subject to the rights of tenants, employees
(including without limitation Tenant's employees and employees of Service
Providers (hereinafter defined)) and workers at the Property, Sellers shall
permit Buyer reasonable access to the Property and appropriate documents in
order to complete its due diligence inspections and reviews. All
inspections and reviews will be conducted at reasonable times agreed upon
in advance by Sellers and Buyer, and at Sellers' election, Sellers may have
a representative present at such inspections and reviews. Buyer will
conduct its inspections and reviews in such a manner so as not to cause any
damage, interruption, loss, cost or expense to, or claims against Sellers
or the Property, and Buyer will indemnify, defend and hold Sellers,
tenants, licensees, any of the respective direct or indirect partners of
Sellers, any of their respective advisors, shareholders, officers,
directors, trustees, beneficiaries, employees, agents and contractors and
the Property harmless from and against any such damage, interruption, loss,
cost or expense or claim. During the Review Period, Buyer shall not
interview or discuss any matter with the union or non-union employees of
Sellers, the Service Providers or the property management company at the
Property (other than, upon prior notice to Sellers and the senior property
manager on site). Additionally, during the Review Period Buyer shall not
interview or discuss any matter with Tenants at the Property, provided,
however, that Buyer, with Sellers' representative present, may interview
MCI Telecommunications Corporation ("MCI"), Market Data, Entex Information
Services, Inc. and Compass Group USA, Inc. (such tenants are hereinafter
referred to as the "Major Tenants") regarding their respective tenancies
and the condition of the Property. Sellers, upon reasonable prior notice,
shall reasonably cooperate with Buyer in conducting such interviews. Buyer
shall make no invasive tests of the Property or any part thereof without
the Sellers' express written consent in each instance (which consent shall
not be unreasonably withheld).
C. CONFIDENTIALITY. Except to the extent required by Buyer's legal
or other regulatory requirements, prior to Closing, Buyer (for itself and
its agents, legal or financial advisors, or prospective lenders) agrees to
keep all information obtained by or on behalf of Buyer with respect to the
Property, Sellers and any tenant leases or in connection with Buyer's due
diligence, in confidence, and not to disclose any such information to any
person, governmental entity or other entity other than Buyer or its agents,
legal or financial advisors, or prospective lenders, without Sellers' prior
written consent in each instance, it being understood that in cases where
disclosure is required by legal or regulatory requirements applicable to
Buyer, Buyer will describe the Property in general terms and not disclose
or reference information that could be used to identify the specific
location of the Property or the identity of the Sellers or any partner of
any Seller. Buyer agrees that it shall not directly or indirectly engage
in or authorize any discussions with MCI, or any affiliate thereof,
regarding the purchase and/or sale of the Property or any portion thereof,
provided, however, that Buyer may interview MCI solely for the purposes
specified in paragraph B above in accordance therewith. Sellers shall
refrain from negotiating with any other prospective buyer of all or any
portion of the Property (other than MCI) until November 26, 1997.
D. "AS-IS" SALE; DISCLAIMER.
(i) The Property will be sold to Buyer in its "AS IS" condition
and Buyer shall rely upon Buyer's own due diligence in determining whether
the Property is suitable for purchase by Buyer. Buyer represents, warrants
and agrees (a) that Buyer shall have examined the Property and all of the
articles of personal property and fixtures (if any) included as part of the
Property prior to the expiration of the Review Period, (b) at the
expiration of such Review Period, Buyer will be familiar with the physical
and environmental condition of the Property and the operation thereof, the
revenues and expenses of the Property, the zoning and other laws,
regulations and rules applicable to the Property and the compliance of the
Property therewith, the Leases and the rents payable thereunder and the
quantity, quality and condition of the articles of personal property and
fixtures agreed to be sold with the Property and any other matters related
to the Property or the transactions contemplated hereby which Buyer deemed
relevant in connection with its decision to proceed with this transaction
(the "Pertinent Matters"), and (c) that no Seller nor any of Sellers'
employees, agents or attorneys nor any of their respective direct or
indirect partners, nor any of their respective officers, directors,
advisors, employees, agents, trustees, shareholders, beneficiaries,
contractors or representatives is making or shall be deemed to have made
any express or implied representation or warranty of any kind or nature,
and, in particular, that no representations or warranties have been made
with respect to the Pertinent Matters, except as and solely to the extent
herein specifically set forth. Subject to the provisions of Paragraph 14
hereof, Buyer agrees to accept the Property "as is", in its present
condition, subject to reasonable use, wear, tear and natural deterioration
between the date hereof and the Closing Date, and further agrees that
Sellers shall not be liable for any latent or patent defects in the
Property or bound in any manner by guarantees, promises, projections,
operating statements, set-ups, or other information pertaining to the
Property made, furnished or claimed to have been made or furnished by
Sellers or any other person or entity, including any employee, agent,
attorney or other person representing or purporting to represent Sellers,
whether verbally or in writing, except as and solely to the extent that the
same is expressly set forth herein.
(ii) Except as and solely to the extent otherwise provided
herein, Buyer hereby acknowledges and agrees that it shall not be entitled
to, and shall not, rely on Sellers, its agents, employees or
representatives, and Sellers hereby disclaim any representations or
warranties of any kind, either express or implied, either under common law,
by statute, or otherwise, as to (a) the quality, nature, adequacy or
physical condition of the Property including, but not limited to, any
structural elements, foundation, roof, appurtenances, access, landscaping,
parking facilities or any electrical, mechanical, heating, ventilating and
air-conditioning, plumbing, sewage or utility systems, facilities or
appliances at the Property; (b) the quality, nature, adequacy or physical
condition of soils and ground water or the existence of ground water at the
Property; (c) the existence, quality, nature, adequacy or physical
condition of any utilities serving the Property; (d) the development
potential of the Property, its value, its profitability, its habitability,
merchantability or fitness, suitability or adequacy of the Property for any
particular purpose; (e) the zoning or other legal status of the Property;
(f) the compliance of the Property or its operations with any applicable
codes, statute, law, ordinance, rule, regulation, covenant, permit,
authorization, standard, condition or restriction of any governmental or
regulatory; (g) the presence or absence of asbestos containing material,
radon, urea formaldehyde or other potentially hazardous substances, wastes,
chemicals, pollutants or contaminants, including without limitation those
identified under the Comprehensive Environmental Response, Compensation,
and Liability Act , 42 U.S.C. Section 9601 et seq.; (h) the quality of any
labor or materials relating in any way to the Property; (i) the square
footage or acreage of the Property; (j) the leasing, physical or financial
status of the Property or the Property's compliance with applicable laws;
(k) the accuracy or completeness of any information or data provided or to
be provided by Sellers including, without limitation, copies of any reports
or documents prepared for Sellers whether by third parties or otherwise
which may be included with such information; or (l) any other matter
relating to the Property or Sellers.
(iii) Buyer acknowledges and agrees that Sellers have not made,
do not make and will not make any representation or warranty with regard to
the past, present or future condition or compliance of the Property, or
compliance of past owners and operators of the Property, with respect to
any past, present or future environmental laws or land use laws, rules,
regulations, orders or requirements.
(iv) Buyer acknowledges and agrees that by the expiration of
the Review Period, Buyer will have had an adequate opportunity to make such
legal, factual and other inquiries and investigations as Buyer deems
necessary, desirable or appropriate with respect to the Property. Such
inquiries and investigations of Buyer shall be deemed to include an
environmental audit of the Property, an inspection of the physical
components and general condition of all portions of the Property, such
state of facts as an accurate survey and inspection would show, the present
and future zoning and land use ordinances, resolutions and regulations of
the city, town, county and state where the Property is located and the
value and marketability of the Property.
E. TENANT PURCHASE RIGHTS. Buyer acknowledges and understands that
its rights to purchase and hold title to the Property hereunder are subject
to (a) the continuing rights of MCI Telecommunications Corporation ("MCI")
and MCI International ("MCI International") to acquire certain portions of
the Property pursuant to the terms of their respective Leases at the
Property, and (b) New York Telephone's continuing right to acquire a
portion of Phase III pursuant to the terms of its lease at the Property.
Sellers represent to Buyer that they have previously delivered the right of
first refusal notices required by the terms of the MCI Lease. Buyer
acknowledges that it has reviewed the terms of the MCI International Lease,
has determined that the transaction contemplated by this Agreement is not
subject to the purchase right contained therein and agrees not to raise an
objection to title on account of such purchase right. If MCI shall
exercise its right to purchase any portion of the Property, then thereafter
neither Buyer nor Sellers shall have any further rights or obligations
hereunder (except for those matters which expressly survive the termination
hereof) and the Deposit immediately will be returned to Buyer. As a
condition precedent to Buyer's obligation to close on the Closing Date, REP
II shall deliver to Buyer and to Buyer's title insurance companies copies
of the notices which REP II caused to be delivered to MCI pursuant to MCI's
right of first refusal, which copies shall be certified as true and correct
by the general partners of REP II, which certification shall include the
date such notices were sent by REP II and the method(s) of delivery thereof
and that to the best of REP II's knowledge such notices substantially
comply with the right of first refusal notice requirements of the MCI
lease. It shall be a condition of Closing that Buyer's Title Insurance
Company agree to omit or issue affirmative insurance that the instant
transaction is not subject to the MCI right of first refusal, provided
however that in no event shall any Seller pay any additional premium for
such omission or affirmative insurance. In lieu of the Sellers' compliance
with the preceding two sentences, Sellers may deliver to Buyer a written
notice from MCI stating to the effect that MCI has received notice of the
instant transaction and is not exercising MCI's right of first refusal in
connection therewith, whereupon the provisions of the preceding two
sentences shall be deemed satisfied and Buyer shall raise no objection to
title based upon the MCI right of first refusal.
F. SURVIVAL. The provisions of this Paragraph 7 shall survive
the termination of this Agreement and the Closing.
8. APPORTIONMENTS AND PAYMENTS.
A. The following are to be apportioned between Sellers and Buyer
as of the Closing Date and the net amount thereof shall either be paid by
Buyer to Sellers (with such amount to be paid to Sellers by Buyer's good
certified or official bank check, payable to the order of Sellers, or wire
transfer of immediately available funds), or credited by Sellers against
the Balance of the Purchase Price, as the case may be, at the Closing:
(i) real property taxes;
(ii) water charges;
(iii) sewer taxes and rents;
(iv) annual permit, license and inspection fees, if any, on
the basis of the fiscal year for which levied, if rights thereunder with
respect thereto are transferable to Buyer;
(v) fuel, steam and all other utilities;
(vi) fixed, additional and escalation rents (including,
without limitation, common area maintenance payments) payable under any
Leases (as hereinafter defined) between Sellers and space tenants
(collectively the "Rent"), if, as and when collected;
(vii) interest and permitted administrative charges, if any, on
tenants' security deposits;
(viii) supplies on hand in the Property in unopened cartons,
at Sellers' cost;
(ix) wages, vacation pay, pension and welfare benefits and
other fringe benefits of all persons employed at the Property;
(x) amounts payable under any Contracts (as hereinafter
defined) assumed by Buyer; and
(xi) all other items customarily apportioned in connection
with similar conveyances in the County of Westchester, State of New York.
B. If the Closing Date shall occur before the real property taxes,
water rates and charges and sewer taxes and rents are finally fixed, the
apportionments thereof made at the Closing shall be upon the basis of the
tax or water rates for the preceding year applied to the latest assessed
valuation, but after the real property taxes, water rates and charges and
sewer taxes and rents are finally fixed, Sellers and Buyer shall make a
recalculation of the apportionment of same, and Sellers or Buyer, as the
case may be, shall make an appropriate payment to the other based on such
recalculation.
▇. ▇▇▇▇▇▇▇ shall arrange for a final reading of all master utility
meters (covering steam, gas, electricity and water and the derivative sewer
charges based on meters). Sellers and Buyer shall jointly execute a letter
to each of such utility companies advising such utility companies of the
termination of Sellers' responsibility for such charges for utilities
furnished to the Property from and after the Closing Date. If a ▇▇▇▇ is
obtained from any of such utility companies before the Closing Date,
Sellers shall pay such ▇▇▇▇ on or before the Closing and deliver proof of
payment thereof to Buyer. If such ▇▇▇▇ shall not have been obtained before
the Closing, Sellers shall pay all such utility, water and sewer charges as
evidenced by the last ▇▇▇▇ or bills relating to the period prior to the
Closing Date and Buyer shall pay all such utility charges relating to the
period after the Closing Date. Any ▇▇▇▇ which shall be rendered which
shall cover a period both before and after the Closing Date shall be
apportioned between Buyer and Sellers as of the Closing Date. An amount
equal to all security deposits, prepayments or credits accrued with Service
Providers under the assigned Contracts, or with utilities, water and sewer
companies or other parties relating to the Property shall be paid to
Sellers by Buyer at the Closing, provided that if such security deposits,
prepayments or credits shall not be transferable to Buyer, Buyer shall
cooperate with Sellers' efforts to collect and enjoy such amounts.
D. The amount of any unpaid taxes, assessments, water rates and
charges and sewer taxes and rents which Sellers are obligated to pay and
discharge, with interest and penalties thereon to the second business day
after the Closing Date, may, at the option of Sellers, be allowed to Buyer
out of the Balance of the Purchase Price, provided that official bills
therefor, with interest and penalties thereon, are furnished by Sellers at
the Closing. If there are any other liens or encumbrances which Sellers
are obligated to pay and discharge, Sellers may use any remaining portion
of the Balance of the Purchase Price to satisfy the same, provided that
Sellers shall deliver to Buyer, at the Closing, instruments in recordable
form sufficient to satisfy such liens and encumbrances of record, together
with a check for the cost of recording or filing said instruments. Buyer,
if request is made at least three (3) business days prior to the Closing,
agrees to provide Sellers at the Closing, with separate certified and/or
official bank checks, payable as directed by Sellers, to facilitate the
satisfaction of any of the aforesaid taxes, assessments, water rates and
charges, sewer taxes and rents, liens and encumbrances.
E. If Sellers receive Rent payments from tenants at the Property
after the Closing Date which are for any period subsequent to the Closing
Date, Sellers shall remit to Buyer the amount of such Rent. If any past-
due Rent is owing as of the Closing Date, or if any Rent for the period
prior to the Closing Date shall have accrued although the same is not then
due and payable, Buyer agrees that the first monies received by Buyer from
tenants owing such past-due or accrued Rent, in an amount not exceeding one
month's Rent shall be received by Buyer, as trustee for Sellers, on account
or in payment of, such past-due or accrued Rent, and Buyer shall forthwith
remit to Sellers the amount of such past-due or accrued Rent out of such
first monies received by Buyer (the "General Rule"). Buyer acknowledges
that MCI International currently owes Sellers approximately $141,691.15 for
certain items of additional rental under its Lease and for certain sidewalk
repair work performed at the Property. If Sellers shall not have been paid
such amounts from MCI International prior to Closing, then Buyer shall
forthwith remit to Sellers, out of the first monies received by Buyer from
MCI International an amount equal to the lesser of (i) $141,691.15 or (ii)
the amount of one month's fixed and escalation Rent under the MCI
International Lease, it being understood that Sellers shall not receive
monies under the General Rule in payment of said $141,691.15 by MCI
International to the extent that Sellers have been paid monies on account
of such $141,691.15 under this sentence. Buyer agrees that Sellers shall
be entitled to retain any monies paid by ▇.▇. ▇▇▇▇▇▇▇ & Co. ("▇▇▇▇▇▇▇") in
connection with the release of such tenant from its obligations under its
Lease or otherwise. Nothing herein contained shall preclude Sellers from
asserting separate and independent claims against such tenants, but only if
each such claim to be asserted exceeds $5,000.00, including, but not
limited to, the institution of such actions as Sellers shall deem necessary
or advisable for the purpose of collecting such past due rentals, the right
(but not the obligation) to do any of which is hereby reserved by Sellers.
Buyer shall cooperate with Sellers to collect any Rents (including, without
limitation, escalation additional rents) owing to Sellers in accordance
herewith.
F. Subject to the provisions of subparagraph E above, to the
extent that Rent cannot be determined on the Closing Date, or is collected
after the Closing Date for any period prior thereto, the amount of such
Rent for the period ending on the Closing Date, and all accountings showing
the calculations thereof, shall be paid and furnished to Sellers by Buyer
if, as and when received after the Closing Date. The portion of the Rent
consisting of additional rent and escalation rent shall be apportioned on a
calendar year or fiscal year basis (depending upon which is appropriate
under each Lease) so that the amount thereof under any of the Leases to
which Sellers shall be entitled shall be an amount which bears the same
ratio to the total additional and escalation rents due thereunder for the
current period as the number of days in said period which shall have
elapsed prior to the Closing Date bears to the total number of days in said
period. In furtherance thereof, Buyer shall pay to Sellers all escalation
additional Rent (i.e., tax, operating expense and other escalation
additional Rent) payable under the Leases which relate to the period from
January 1, 1997 through the actual Closing Date as and when collected by
Buyer. Escalation additional Rent for calendar year 1997 shall be billed
by Buyer on or about April 1, 1998, and Buyer shall pay to Sellers any
portion thereof to which Sellers are entitled as aforesaid, as and when
collected by Buyer. Sellers agree to make available for Buyer's
examination, all records, statements and accounts bearing on or relating to
Rent and, on the Closing Date, to furnish Buyer with a comprehensive and
complete statement of prepaid Rent and uncollected Rent. Subsequent to the
Closing and until all apportionments shall have been finally determined,
Buyer agrees to make available for Sellers' examination, all records,
statements and accounts bearing on or relating to Rent. Any prepaid Rents
received by Sellers on or before the Closing Date covering any period of
time subsequent thereto shall be credited to Buyer at the Closing.
G. At the Closing, Sellers shall deliver to Buyer a good certified
or official bank check, payable to the order of Buyer (or grant Buyer a
credit against the Balance of the Purchase Price due at Closing), in the
aggregate amount of any security deposits held under any Leases between
Sellers and space tenants, together with any accrued interest earned
thereon and credited to Sellers' security deposit account (adjusted
pursuant to Paragraph 8(A) hereof). Buyer shall execute a receipt for the
amount of all security deposits so paid over. If any tenant of the
Property having a security deposit is in default under the terms of its
Lease and either (x) notices of default and termination of such tenant's
Lease shall have been duly given or (y) such estoppel certificate executed
by the tenant acknowledges that the security deposit held by the landlord
under the Lease has been reduced by reason of the tenant's default or fails
to state a claim that the landlord is in default of such tenant's Lease by
reason of such reduction in the security deposit, Sellers may retain so
much of the security deposited by such tenant and the interest accrued
thereon as shall be sufficient to cover Sellers' loss by reason of such
tenant's default.
H. At the Closing, Sellers shall pay their own counsel fees, deed
stamps, transfer taxes and such other closing costs as are customarily paid
by a seller and Sellers shall execute and deliver any appropriate return or
form as may be required in connection therewith. Buyer shall pay its
counsel fees, title insurance and survey costs, sales taxes (if any) and
such other closing costs as are customarily paid by a buyer and execute and
deliver any appropriate return or form as may be required in connection
therewith. In addition, any costs relating to Buyer's due diligence,
including, without limitation, those relating to appraisers, inspectors,
auditors and environmental or engineering consultants, shall be Buyer's
sole responsibility. Sellers shall have the option to grant to Buyer a
credit against the Balance of the Purchase Price, at the Closing, in an
amount equal to the amount of any deed stamps and transfer taxes payable by
Sellers. If such adjustment is made by Sellers, Buyer agrees to pay the
amount of such deed stamps and transfer taxes.
I. Fuel oil, if any, owned by Sellers and on the Property on the
date as of which adjustments shall be made, shall be adjusted at the cost
price thereof to Sellers, as reflected in Sellers's last ▇▇▇▇, plus taxes
paid thereon. The amount of fuel oil is to be estimated in writing by the
fuel company currently supplying fuel to the Property, as of a date which
is not more than three (3) business days prior to the Closing Date.
J. If, on the Closing Date, the Property or any part thereof shall
be affected by any assessments which are payable in installments, then
installments payable prior to the Closing Date shall be paid by Sellers
(subject to apportionment as provided for herein), and installments payable
after the Closing Date shall be paid by Buyer (subject to apportionment as
provided herein). Any such installments payable by Buyer shall not be
objections to title whether or not the same constitute liens on the Closing
Date.
▇. ▇▇▇▇▇▇▇ have instituted prior to the Closing Date tax reduction
proceedings seeking to reduce the assessed valuation of the Property (a
"tax reduction proceeding") for certain periods before and after the
Closing Date. Subsequent to the Closing, Sellers shall be permitted to
continue such tax reduction proceedings, whether in the name of Sellers or
Buyer. Any refund of taxes which results from a tax reduction proceeding
commenced by Sellers ("refund") shall be the sole property of Sellers,
except that Buyer shall be entitled to that portion of the refund (after
deduction from the full refund of all of Sellers' expenses incurred in
connection therewith, including without limitation attorneys' fees and
expenses) which is refundable to tenants under the Leases, and that portion
of such refund which relates to the period subsequent to the Closing.
Sellers shall have the right to settle any tax reduction proceeding without
Buyer's consent, except to the extent Buyer will be bound by any settlement
for any tax year following the Closing and for any tax reduction proceeding
relating solely to the tax year in which the Closing occurs, for which
Buyer's prior written consent shall be required, which consent Buyer agrees
not to unreasonably withhold or delay. Buyer shall execute and deliver any
documents that may be reasonably required by Sellers in connection with
such tax reduction proceeding and any recovery had thereunder, all without
charge or expense to Sellers.
L. The parties hereto agree that any errors or omissions in
computing apportionments at the Closing shall be corrected promptly after
their discovery. In furtherance thereof, the parties agree to recalculate
apportionments and make appropriate payments to each other on or about the
ninetieth (90) day following the Closing.
M. The parties hereto agree that Buyer's attorneys shall be "the
real estate reporting person" with respect to this transaction who is
responsible for the completion of form 1099S or such other successor form
as may be prescribed by the Internal Revenue Service and for fulfilling all
of the obligations and requirements of Section 6045(e) of the Internal
Revenue Code of 1986, as amended.
▇. ▇▇▇▇▇▇▇ shall be responsible for paying $771,450 on account of
tenant improvement work in connection with Compass Group USA, Inc. Lease,
and $13,617 representing brokerage commission in connection with the
failure of MCI to exercise a right of termination in the MCI Lease. In
addition, Sellers shall be responsible for all brokerage commissions which
were due and payable or which accrued prior to the date of Closing, it
being understood by way of example that if a lease is signed prior to the
Closing and the brokerage agreement provides for the payment of a $20,000
brokerage commission in two instalments of $10,000, the first instalment
payable before the Closing and the second instalment payable after the
Closing, the Sellers shall nevertheless be responsible for the payment of
both $10,000 instalments, unless the second instalment relates to
circumstances (such as the tenant's failure to terminate or exercise of an
expansion or renewal right) which by their nature will not occur until
after the Closing in which latter case the Sellers shall pay the first
$10,000 instalment and the Buyer shall pay the second $10,000 instalment.
Notwithstanding the foregoing example, in all cases where a brokerage
commission is claimed with respect to a current or future Lease and the
right to earn the commission is or may be affected by events that occur or
fail to occur subsequent to the Closing, Buyer shall be responsible for all
such commissions.
O. The provisions of this Paragraph 8 shall survive the Closing
Date.
9. CLOSING DOCUMENTS.
A. At the Closing, and upon payment by Buyer of the Balance
of the Purchase Price (plus any other sums which Buyer has agreed herein to
pay to Sellers at the Closing, but less any credits to which Buyer may be
entitled to hereunder), each Seller shall deliver to Buyer the following
with respect to the portion of the Property owned by such Seller:
(i) A bargain and sale deed (without covenants) from each
Seller (collectively, the "Deeds"), in proper statutory form for recording,
which shall be duly executed and acknowledged so as to convey to Buyer
title to that portion of the Property owned by each Seller, subject to the
Permitted Exceptions. Specifically, subject to and in accordance with the
terms hereof, REP I shall convey title, to that portion of the Property
described on Exhibit "A-1" annexed hereto, REP II shall convey title to
that portion of the Property described on Exhibit "A-2" annexed hereto and
REP III shall convey title to that portion of the Property described on
Exhibit "A-3" annexed hereto;
(ii) An assignment and assumption of the Leases, in the form
attached hereto as Exhibit "C";
(iii) An assignment and assumption of Contracts in the form
attached hereto as Exhibit "D". Sellers, at Buyer's written request, shall
terminate by notice given at the Closing any Contracts (other than all
applicable brokerage or commission agreements with respect to tenants or
Leases at the Property, none of which shall be terminable by Buyer) which
Buyer elects not to assume, it being understood that Buyer shall be
responsible for and indemnify Sellers against any amounts due under such
terminated Contracts for the period subsequent to the Closing through the
effective date of termination, it being further understood that Buyer shall
notify Sellers as to which Contracts it elects not to assume by the Closing
Date;
(iv) Notices executed by Sellers addressed to all tenants in
the Buildings, advising them of the within sale, the assignment of their
respective Lease security deposit (including interest) (if held by such
Seller) and the assumption by Buyer of the obligations as landlord
thereunder, directing them to send Rent to Buyer or Buyer's managing agent,
and containing such other information as may be required in order to
relieve such Sellers from any liability to such tenants with respect to the
security deposits delivered to Buyer, which notices Buyer shall mail, at
Buyer's sole cost and expense, to each tenant by certified mail, return
receipt requested;
(v) As a condition to Closing, Sellers shall deliver executed
estoppel certificates, substantially in the form of the estoppel
certificate attached hereto as Exhibit "E" or in the form required by the
applicable lease with no material omissions therefrom or material changes
thereto or new provisions or statements added thereto, any of which are
materially adverse to the rights or interests of the landlord under the
lease of the tenant giving such certificate, from the Major Tenants
(including MCI and MCI International and their affiliates that have a Lease
to occupy space at the Property ) and from tenants occupying not less than
fifty percent (50%) of the balance of the leased space at the Property;
provided, however, that Sellers shall request estoppel certificates from
all tenants in the Building. In the event an estoppel certificate
delivered by a tenant does not conform to the form of the estoppel
certificate attached hereto and if such non-conforming matter can be
remedied by the performance of work or the payment of money, Sellers shall
have the right but not the obligation to cure the non-conforming matter set
forth in such estoppel certificate, by either performing or causing to be
performed the work, paying the money, or by granting Buyer a credit against
the Purchase Price in an amount reasonably necessary to perform such work,
as reasonably determined by the parties. Additionally, if Sellers shall be
unable to deliver an estoppel certificate for any tenant of the Building by
the Closing Date other than the Major Tenants, for which Sellers shall be
required to deliver an estoppel certificate, then Sellers shall have the
right but not the obligation to deliver to Buyer, in substitution for such
estoppel certificate, a certificate from Sellers (a "Sellers'
Certificate"), certifying as to the matters set forth in the form of the
estoppel certificate attached hereto as Exhibit "E" which shall survive the
Closing until November 15, 1998; provided, however, that if Sellers shall
deliver a partially completed estoppel certificate from a particular
tenant, then such Sellers' Certificate shall cover only those matters set
forth in the estoppel certificate which were not confirmed by the
respective tenant. If Sellers deliver an estoppel certificate for a
required tenant subsequent to the Closing Date, then such Sellers'
Certificate shall be deemed canceled to the extent of the matters confirmed
in such estoppel certificate, provided, however, that if the required
estoppel certificate shall have been fully completed, then the Sellers'
Certificate with respect thereto shall be canceled in full;
(vi) Original or certified copies of all Leases, amendments
and other documents relating thereto, rent records and related documents in
the possession or under the control of Sellers (which documents may be
delivered at the Property). Such records shall include a schedule of all
cash security deposits, including any interest thereon, held by Sellers on
the Closing Date under the Leases together with appropriate instruments of
transfer or assignment with respect to any lease securities which are other
than cash and a schedule updating the Lease Schedule and setting forth all
arrears in rents and all prepayments of rents;
(vii) Such affidavits and indemnities as the Title
Company may reasonably require in order to omit from its title insurance
policy all exceptions for (a) judgments, bankruptcies or other returns
against persons or entities whose names are the same as or similar to
Sellers' names; (b) parties in possession (other than tenants pursuant to
the Leases and other occupants under the Contracts); and (c) mechanics'
liens;
(viii) Sellers shall make all tenant files and records
including without limitation all tenant correspondence and billing for
escalations and files and records for the Buildings available to Buyer for
copying, which obligation shall survive the Closing;
(ix) Original (or photocopies, if originals are
unavailable to Sellers) of all site plans, surveys, soil and substrata
studies, architectural drawings, plans and specifications, engineering
plans and studies, floor plans, landscape plans and other plans or studies
of any kind in the possession or under the control of Sellers that relate
(a) to the Land, the Buildings, including without limitation as-built plans
for tenant improvements, or (b) otherwise to the Property. Sellers shall
also deliver (i) original (or photocopies, if originals are unavailable to
Sellers) of all then effective assignable guaranties and warranties made by
any person for the benefit of Sellers and in the possession or under the
control of Sellers, with respect to the Property or any of its components,
together with an instrument in form and substance reasonably satisfactory
to Buyer assigning the same to Buyer, and (ii) all certificates, licenses,
permits, authorizations and approvals issued for or with respect to the
Property by governmental and quasi-governmental authorities having
jurisdiction, except that photocopies may by substituted if the originals
are posted at the Property.
(x) All keys in Sellers' possession to all entrance
doors to, and any equipment and utility rooms located in, the Property
(appropriately tagged for identification); and
(xi) An executed Affidavit of Non-Foreign Status,
certifying that each Seller is not a "foreign person" pursuant to Section
1445 of the Internal Revenue Code;
B. At the Closing, Buyer shall deliver to Sellers a duly executed
and acknowledged agreement in form and substance reasonably satisfactory to
Sellers whereby Buyer shall (i) assume all of Sellers' obligations under
the Leases (arising from and after the Closing), and (ii) agree to
indemnify Sellers against, and hold Sellers harmless from, any liability,
damages, claims, losses, costs and expenses (including attorneys' fees)
arising from or relating to (x) the Leases or the obligations or
responsibilities of the landlord thereunder with respect only to the period
subsequent to the Closing and the security deposits delivered under such
Leases (but only to the extent same have been delivered to Buyer) and (y)
the Pertinent Matters.
C. The parties acknowledge and agree that no portion of the
Purchase Price is for or allocated to any personal property (if any)
located at the Property. However, if any governmental body deems any part
of the Purchase Price to have been paid for any personal property
transferred hereunder, then Buyer shall pay all such sales tax so payable,
which payment shall be made at the Closing. The provisions of this
subparagraph shall survive the Closing.
10. Title Insurance.
A. Buyer shall order from a reputable title insurance company
which is licensed to do business in the States of Connecticut and New York
(the "Title Company"), within five (5) days after the execution of this
Agreement, time being of the essence, a title report with respect to the
Property and request the Title Company to deliver to the Sellers a copy
thereof promptly upon receipt of the same, but, in all events, not later
than the expiration of the Review Period, time being of essence. If such
title report discloses title defects or exceptions to title which are not
included within the Permitted Exceptions and if, by reason of such title
defects or exceptions, the Sellers shall be unable to convey title to the
Property in accordance with the provisions of this Agreement, then the
Sellers shall have the right, but not the obligation, to attempt to cause
the Title Company to omit such defects or exceptions from the title
insurance policy to be issued to the Buyer and, for such purpose, the
Sellers shall be entitled to one or more adjournments of the Closing for a
period not exceeding sixty (60) days in the aggregate. If the Sellers
refuse or are unable to eliminate any such title defects or exceptions and
convey title to the Property in accordance with the terms of this Agreement
by the Closing, as the same may be adjourned as aforesaid, then the Buyer,
as its sole and exclusive remedy, may elect by written notice to the
Sellers to either (i) reject title to the Property and terminate this
Agreement, or (ii) accept title to the Property subject to such defects or
exceptions without any abatement of the Purchase Price or liability on the
part of the Sellers. If Buyer shall reject title under subsection (i)
above, then neither party shall have any liability whatsoever to the other
hereunder except that Buyer shall be entitled to a prompt refund of the
Deposit and the net cost of any title commitments and survey charges not
exceeding $15,000.00 in the aggregate. The existence of any condition to
which Buyer agrees to take subject under this Agreement shall not be deemed
or construed to render Sellers' title unmarketable, and notwithstanding
that such conditions may render title unmarketable, Buyer shall not have
the right to reject title by reason thereof, the Purchase Price shall not
in any respect be reduced, and Buyer shall not be entitled to damages
therefor. Anything contained in this subparagraph to the contrary
notwithstanding, the Buyer shall accept such title to the Property as the
Title Company shall be willing to insure, subject only to the Permitted
Exceptions. Notwithstanding anything to the contrary contained herein,
Sellers shall be obligated to remove any title exceptions for mortgages
made by Sellers, tax liens against Sellers or imposed upon the Property,
judgment liens against Sellers, or mechanics liens for work performed at
the request of Sellers and which in each case may be removed by the payment
of a liquidated sum and any title exception (other than the Permitted
Exceptions) created by Sellers' voluntary acts after the date hereof.
B. If a search of the title discloses judgments, bankruptcies or
other returns entered against any other person or entity having a name the
same as or similar to that of Sellers, Sellers shall, at the Closing,
deliver to Buyer affidavits showing that such judgments, bankruptcies or
other returns are not against Sellers.
C. Except as provided in paragraph A above, the Sellers do not
agree to undertake, and nothing herein contained shall be construed to
require Sellers to bring any action or proceeding or otherwise to incur any
expense whatsoever to render title to the Property either acceptable to
Buyer, insurable, or to be in accordance with the provisions of this
Agreement.
D. Except as provided in paragraph A above, the premium for
Buyer's title insurance policy to be issued by the Title Company pursuant
to the Commitment, and all related charges and survey costs incurred in
connection with the Commitment or such policy, shall be paid by Buyer.
11. THE LEASES.
A. Buyer acknowledges that Buyer has examined the Leases set
forth on the lease schedule (the "Lease Schedule") annexed hereto as
Exhibit "F". Sellers represent and warrant that, except as disclosed to
Buyer prior to the end of the Review Period, to the Sellers' actual
knowledge, (i) the Leases set forth on such Lease Schedule constitute all
of the agreements (other than any subleases and the Contracts) which relate
to, affect the occupancy of, or create and/or affect the rights to the
occupancy of, the Property or any portion thereof, and all amendments,
renewals, extensions and modifications thereof, (ii) except as set forth in
the Leases (and any subleases and Contracts), no person or firm has any
right to occupy any portion of the Property, (iii) all of the Leases are in
full force and effect and other than as set forth on the Lease Schedule,
none of them have been modified, amended or extended and no renewal or
expansion options have been granted to tenants except as specifically set
forth in the Leases, (iv) except for MCI, MCI International and New York
Telephone, no tenant has an option to purchase the Property or any part
thereof, (v) except as set forth therein, the rents set forth on the Lease
Schedule are being collected on a current basis and there are no arrearages
in excess of one month, (vi) except as set forth in the Leases, no tenant
is entitled to rental concessions or abatements for any period subsequent
to the Closing Date, (vii) Sellers have not sent written notice to any
tenant of the Property claiming that such tenant is in default, which
default remains uncured, other than the unpaid Rent sums set forth on the
Lease Schedule, (viii) no action or proceeding instituted against Sellers
by any tenant of the Property is currently pending in any court, except
with respect to claims involving personal injury or property damage which
are covered by insurance and described on Exhibit "G", (ix) there are no
security deposits or prepaid rent in the nature of a security deposit other
than those set forth in the Lease Schedule or the Leases, (x) no rent has
been paid more than thirty (30) days in advance under any of the Leases,
(xi) all tenant improvement work required to be completed or paid for by
Sellers has been or prior to the Closing Date will be completed or paid
for, as the case may be, and (xii) except as set forth in the Leases and on
Exhibits F (Lease Schedules) and H (Contracts), there are no unpaid leasing
commissions or any liability therefor arising from options to expand or
renew contained in any of the Leases.
B. Except as is otherwise provided herein, Sellers agree that
Sellers will not make any modifications of the Leases which affect the
period subsequent to the Closing without the prior written consent of
Buyer, which consent Buyer agrees not to unreasonably withhold or delay.
Buyer acknowledges that ▇▇▇▇▇▇▇ previously assigned its Lease to American
Progressive Life and Health Insurance Company of N.Y. by Assignment and
Assumption of Lease Agreement, dated September 29, 1997. By Consent to
Assignment, dated October 8, 1997, REP II consented to such assignment.
Buyer agrees that REP II shall have the right to release ▇▇▇▇▇▇▇ from its
obligations under its Lease and the aforesaid Assignment and Consent and
REP II may receive any amounts payable in connection therewith.
C. The right and privilege is reserved to Sellers to institute
termination and eviction proceedings against any tenant prior to the
Closing based upon such tenant's failure to observe or perform any of its
obligations pursuant to its Lease, but notice thereof shall be given to the
attorneys for Buyer. Sellers do not guarantee or undertake that any tenant
of the Property will be in occupancy on the Closing or that any of the
Leases will be in force or effect on the Closing. Buyer agrees that the
vacating of any portion of the Property by any tenant, or the removal of
any tenant by eviction proceedings, or the termination of any of the
tenants' occupancies, by reason of defaults arising under the Lease or
otherwise, prior to the Closing, shall not give rise to any claim on the
part of Buyer or affect the obligations of Buyer hereunder in any manner
whatsoever.
D. If any of the rentable space in the Property is currently
vacant or becomes vacant between the date of this Agreement and the
Closing, the same shall not be relet, nor shall any extension or renewal of
any lease be made, nor shall any modification of the terms of any lease or
rental agreement be made (other than the Weston Insurance Brokerage, Inc.
Amendment of Lease) and ▇▇▇▇▇▇▇ release, except with the prior written
consent of Buyer, which shall not be unreasonably withheld or delayed.
12. ACCEPTANCE OF DEED; REPRESENTATIONS AND WARRANTIES.
A. The acceptance of the Deeds by Buyer shall be deemed to be an
acknowledgment by Buyer that Sellers have fully performed, discharged and
complied with all of Sellers' obligations, representations, warranties,
covenants and agreements hereunder, that Sellers are discharged therefrom
and that Sellers shall have no further liability with respect thereto,
except for (i) the post-closing adjustments (if any) required hereunder,
and (ii) those, if any, which are herein specifically stated to survive the
Closing.
▇. ▇▇▇▇▇▇▇ and Buyer represent and warrant to each other that the
execution, delivery and performance of this Agreement have been duly
authorized and, except as otherwise provided herein, no other action or
approval is required in order to enable each respective party to consummate
the transaction contemplated by this Agreement.
C. Each Seller as to its portion of the Property to its actual
knowledge hereby represents and warrants to Buyer that:
(i) Such Seller has full right, power and authority in
accordance with law to sell and convey its interest in the Property to
Buyer as provided herein, subject to the purchase rights set forth in
Paragraph 7 above.
(ii) Sellers know of no pending or threatened actions or
proceedings regarding condemnation of the Property or any part thereof.
(iii) Except as set forth on Exhibit "G" annexed hereto,
pending tax certiorari proceedings, matters in the Report and the oil
spillage incidents referenced in Paragraph 7(A), there is no action, suit,
litigation, claim, administrative or governmental or quasi-governmental
investigation or proceeding pending against or relating to the Property.
(iv) Exhibit "H" annexed hereto lists all service,
maintenance, supply and management contracts (collectively, the
"Contracts") known to Sellers affecting the Property, and the information
set forth therein is accurate and complete as of the date hereof. Except
as otherwise specifically set forth in Exhibit "H" or elsewhere in this
Agreement (1) all of the Contracts are in full force and effect and none of
them have been modified, amended or extended, (2) Sellers have not sent
written notice to, or received written notice from, any management company,
maintenance or service provider (collectively, the "Service Providers")
claiming default under any Contracts, and (3) no action or proceeding
instituted by Sellers against any Service Providers or by any Service
Providers against Sellers is currently pending in any court.
(v) There are no employees of Seller employed at the Property
and no union contracts affecting the Property except as noted on Exhibit H
(Contracts).
(vi) As of the Closing Date, there will be no outstanding
rights of first refusal, rights of first offer, options or similar rights
to purchase all or any portion of the Property other than the respective
MCI, MCI International and New York Telephone's continuing options to
purchase a portion of the Property or portions thereof as set forth in its
lease, copies of which will be delivered to Buyer for its review during the
Review Period.
During the Review Period Sellers may notify Buyer of any matter that is the
subject of any Seller's representation or warranty (including, without
limitation, any matter related to brokerage or other Contracts and the
Leases), which noticed matter will be deemed an exception to such
representation or warranty and shall be deemed included in the appropriate
obligations to be assumed by Buyer, provided, however, that if Sellers (as
opposed to a third party) shall notify Buyer of any such additional matters
later than December 12, 1997, then the Review Period shall be extended
until December 17, 1997, and the Closing shall occur within four (4)
business days thereafter, as designated by Buyer (time being of the essence
as to such dates), provided, however, that either party may adjourn the
Closing by notice to the other party for not more than three (3) business
days thereafter for any reason whatsoever, time being of the essence as to
Buyer's obligation to close by such date
D. Anything to the contrary contained in this Agreement
notwithstanding, the covenants, representations and warranties of each
Seller shall survive until November 15, 1998, whereupon all covenants,
representations and warranties of Sellers shall be deemed fully observed,
paid and performed, and Buyer shall have no further rights or remedies with
respect thereto, except for the breach of those covenants, representations
and warranties that are the subject of (x) a notice given on or before
November 15, 1998, from Buyer to Sellers in writing that describes with
specificity the nature of the breach and the damages arising therefrom, and
(y) litigation of the breach described in such notice that is duly
commenced on or before the fifteenth (15th) day) after the notice is given
pursuant to clause (x) and at all times prosecuted diligently thereafter,
as to which notice and litigation dates time shall be of the essence.
E. For purposes of this Agreement, all references to "knows,"
"known" or "knowledge" of any of the Sellers shall mean the actual
knowledge without further inquiry as of the date of the relevant
representation or warranty of the following individuals:
For REP I: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
For REP II: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and
For REP III: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
it being understood that each Seller currently relies upon the knowledge of
such individuals as representatives of the general partner of each Seller
who are generally familiar with major current matters affecting the
Property owned by such Seller (other than matters known to the property
manager, the property engineer or other specialists entrusted with specific
matters or responsibilities concerning the Property, to the extent that (x)
the knowledge of such specialists has not been imparted to Messrs. ▇▇▇▇▇▇
or ▇▇▇▇▇▇▇ in writing and (y) such writing is not disclosed to the Buyer
prior to the end of the Review Period).
13. BROKER
Buyer represents and warrants to Sellers that Buyer has had no
dealings with respect to this transaction with any real estate broker, firm
or salesman, or any other person or corporation, except ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC,
Inc. (the "Broker"), and Sellers agree to pay the brokerage commission due
to the Broker in accordance with the terms of a separate written agreement
with said Broker. Buyer agrees to indemnify Sellers against, and defend
Sellers and save Sellers harmless from and against any and all claims, and
Sellers' reasonable expenses related thereto (including attorneys' fees),
for brokerage commissions, fees or other compensation by any person, firm
or corporation (other than the Broker) who shall allege to have acted in
this transaction with Buyer or dealt with Buyer in connection herewith.
Sellers agree to indemnify Buyer against, and defend Buyer and save Buyer
harmless from any and all claims, and Buyer's reasonable expenses related
thereto (including reasonable attorneys' fees), for brokerage commissions,
fees or other compensation by any person, firm or corporation who shall
allege to have acted in this transaction with Sellers or dealt with Sellers
in connection herewith. The provisions of this Paragraph shall survive the
Closing and any termination of this Agreement.
14. CONDEMNATION AND DESTRUCTION.
A. If, prior to the Closing Date, all or any significant portion
of the Property is taken by eminent domain or is the subject of a pending
taking which has not been consummated (collectively, a "Taking"), Sellers
shall notify Buyer of such fact and Buyer shall have the option to
terminate this Agreement upon notice to Sellers given not later than ten
(10) business days after receipt of Sellers's notice, time being of the
essence. If this Agreement is terminated, as aforesaid, then the Deposit
shall be returned to Buyer, and thereupon neither party shall have any
further rights or obligations to the other hereunder except such
obligations as survive termination of this Agreement. If Buyer elects not
to terminate this Agreement as aforesaid, or if an "insignificant portion"
(i.e., any Taking which does not materially interfere with access to the
Property and does not serve to decrease in any material respect the size of
any of the Buildings) of the Property is taken by eminent domain, there
shall be no abatement of the Purchase Price, but Sellers shall assign and
turn over at the Closing, and Buyer shall be entitled to receive and keep,
all awards for such taking by eminent domain.
B. If, prior to the Closing, a material part of any of the
Buildings is destroyed or damaged by fire or other casualty ("material"
being deemed to be any destruction greater than "immaterial", as defined
below, or permitting Tenants paying Rents of more than ten percent (10%) of
the aggregate Rents of the Property to terminate their leases), Sellers
shall notify Buyer of such fact and Buyer shall have the option to
terminate this Agreement upon notice to Sellers given not later than twenty
(20) days after receipt of Sellers's notice. If this Agreement is
terminated as aforesaid, then the Deposit shall be returned to Buyer, and
thereupon neither party shall have any further rights or obligations to the
other hereunder except such obligations as survive the termination of this
Agreement. If Buyer elects not to terminate this Agreement as aforesaid,
or if there is damage to or destruction of an "immaterial" part of any of
the Buildings by fire or other casualty, then Sellers shall assign and turn
over, and Buyer shall be entitled to receive and keep, all insurance
proceeds paid or to be paid, and relating to the damage to the Property
caused by such casualty (the "Proceeds"), which remain after payment or
reimbursement is made for the work (if any) performed by Sellers in
connection with such casualty together with a check for the deductible
amount under Sellers' insurance policy (if any), without further abatement
of the Purchase Price, provided, however, that in no event shall Sellers be
obligated to restore any portion of the Property that is damaged by
casualty. Sellers agree to maintain in force and effect until the Closing
Date any existing casualty insurance coverage on the Property. Sellers
represent and warrant to Buyer that its existing casualty insurance covers
the Buildings for 100% of the replacement value thereof (less a reasonable
deductible). An "immaterial" part of the Buildings shall be deemed to have
been damaged or destroyed if either (i) the cost of repair or replacement
shall be $2,500,000 or less, or (ii) the damage to the Buildings may be
repaired (without regard to the cost therefor) within the period expiring
one hundred twenty (120) days after the Closing Date as scheduled prior to
such casualty, as reasonably determined by a reputable architect who is
jointly selected by Sellers and Buyer.
15. DEFAULTS.
A. If Sellers shall tender the Deeds in compliance with the
Sellers' obligations hereunder, and Buyer shall fail or refuse to close
title hereunder as required by the terms of this Agreement, then the Escrow
Agent shall deliver the Deposit to Sellers (pro rata in proportion to the
allocation of the Purchase Price set forth in Paragraph 2(C)), and the
Sellers shall be entitled to retain the Deposit, free of any claim thereto
of Buyer, as liquidated damages, as their sole and exclusive remedy
hereunder, and neither party shall have any further rights or obligations
to the other hereunder (other than those obligations which expressly
survive the closing or termination hereof). In connection with the
foregoing, the parties recognize that Sellers will incur expense in
connection with the transaction contemplated by this Agreement and that the
Property will be removed from the market; further, that it is extremely
difficult and impracticable to ascertain the extent of detriment to Sellers
caused by the breach by Buyer under this Agreement and the failure of the
consummation of the transaction contemplated by this Agreement or the
amount of compensation Sellers should receive as a result of Buyer's breach
or default. In the event the sale of the Property shall not be consummated
on account of Buyer's default, then the retention of the Deposit shall be
Sellers' sole and exclusive remedy under this Agreement by reason of such
default.
B. If the transaction herein provided shall not be closed by
reason of Sellers' default under this Agreement or the failure to satisfy
the conditions set forth in this Agreement or the termination of this
Agreement in accordance with the terms hereof, then the Deposit shall be
returned to Buyer, and neither party shall have any further obligation or
liability to the other; provided, however, if the transaction hereunder
shall fail to close solely by reason of a material or wilful default by
Sellers, Buyer shall have fully performed its obligations hereunder and
shall be ready, willing and able to close, then Buyer shall be entitled to
specifically enforce this Agreement; and provided further however, if
Sellers shall willfully take actions so as to attempt to prevent the
availability of a specific performance to Buyer, then Buyer shall, at its
option, in lieu of specific performance, be entitled to a return of the
Deposit and reimbursement of its actual out-of-pocket costs paid to third
parties in connection with the transactions hereunder (such reimbursement
not to exceed $50,000 in the aggregate). Except as set forth above, no
other actions, for damages or otherwise, shall be permitted in connection
with any default by Sellers. Notwithstanding anything to the contrary
contained herein, if the closing of the transaction hereunder shall have
occurred (and Buyer shall not have waived, relinquished or released any
applicable rights in further limitation), the aggregate liability of
Sellers arising to or in connection with the representations, warranties,
indemnifications, covenants or other obligations (whether express or
implied) of Sellers under this Agreement (or any document executed or
delivered in connection herewith) shall not exceed $2,000,000.00, which
amount shall be maintained by Sellers in Sellers' names until November 15,
1998, at which time, if no claim has been asserted by Buyer against
Sellers, Sellers may distribute such funds. If a claim has been timely
made such funds (up to the amount that might be necessary to satisfy such
claim) shall continue to be held by Sellers until resolution of the claim.
C. The liability of Sellers hereunder for damages or otherwise
shall be limited to Sellers' interest in the Property including, without
limitation, the proceeds of any insurance policies covering or relating to
the Property, any awards payable in connection with any condemnation of the
Property or any part thereof, and any other rights, privileges, licenses,
claims, causes of actions or other interests, sums or receivables
appurtenant to the Property. Sellers shall have no personal liability
beyond Sellers' interest in the Property, and no other property or assets
of Sellers shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Buyer's claims. In no event shall
Sellers' officers, partners, trustees, directors, agents, employees or
shareholders have personal liability in connection with the transactions
hereunder or otherwise. No constituent partner in or agent of Sellers, nor
any advisor, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative or agent of any corporation or
trust that is or becomes a constituent partner in Sellers (including, but
not limited to, JMB Realty Corporation or London & Leeds Development
Corporation or any affiliates thereof) shall have any personal liability,
directly or indirectly, under or in connection with this Agreement or any
agreement made or entered into under or pursuant to the provisions of this
Agreement, or any amendment or amendments to any of the foregoing made at
any time or times, heretofore or hereafter, and Buyer and its successors
and assigns and, without limitation, all other persons and entities, shall
look solely to Sellers' interest in the Property for payment of any claim
or for any performance, and Buyer, on behalf of itself and its successors
and assigns, hereby waives any and all such personal liability.
Notwithstanding anything to the contrary contained in this Agreement,
neither the negative capital account of any constituent partner in Sellers,
nor any obligation of any constituent partner in Sellers to restore a
negative capital account or to contribute capital to Sellers (or any
constituent partner of Sellers), shall at any time be deemed to be the
property or an asset of Sellers or any constituent partner thereof, and
neither Buyer nor any of its successors or assigns shall have any right to
collect, enforce or proceed against or with respect to any such negative
capital account or partner's obligation to restore or contribute.
16. ENTIRE AGREEMENT.
This Agreement contains all of the terms agreed upon between the
parties with respect to the subject matter hereof, and all understandings
and agreements heretofore had or made between the parties hereto are merged
in this Agreement which alone fully and completely expresses the agreement
of said parties.
17. AMENDMENTS.
This Agreement may not be changed, modified, supplemented or
terminated, nor may any obligations hereunder be waived, except by an
instrument executed by the party hereto which is or will be affected by the
terms of such change, modification, supplementation or termination.
18. WAIVER.
No waiver by either party of any failure or refusal by the other
party to comply with its obligations shall be deemed a waiver of any other
or subsequent failure or refusal to so comply.
19. SUCCESSORS AND ASSIGNS.
The covenants, agreements, representations, and warranties herein
contained shall inure to the benefit of, and shall bind, the heirs,
administrators, successors and permitted assigns of the respective parties
hereto. Anything contained herein to the contrary notwithstanding, each
Seller shall be responsible only for, and be deemed to make, the covenants,
conditions, representations and warranties of Sellers solely with respect
to and to the extent of such Seller's interest in each of ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇
or Phase 3.
20. PARTIAL INVALIDITY.
If any term or provision of this Agreement or the application thereof
to any person or circumstances 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 held 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.
21. GOVERNING LAW.
A. This Agreement shall be governed by, interpreted under, and
construed and enforced in accordance with, the laws of the State of New
York applicable to agreements made and to be performed wholly within said
State without regard to principles of conflicts of laws.
▇. ▇▇▇▇▇▇▇ and Buyer hereby irrevocably consent and agree that any
legal action, suit or proceeding arising out of or in any way connected
with this Agreement shall be instituted or brought in the courts of the
State of New York, in the County of New York, or in the United States
District Court serving such jurisdiction, and by execution and delivery of
this Agreement, Sellers and Buyer hereby irrevocably accept and submit, for
itself and in respect of its property, generally and unconditionally, to
the exclusive jurisdiction of either of such courts, and to all proceedings
in such courts. In addition to any method provided by applicable law,
Sellers and Buyer irrevocably consent to service of any summons and/or
legal process by registered or certified United States mail, postage
prepaid, in accordance with the provisions of Paragraph 25 hereof, such
method of service to constitute, in every respect, sufficient and effective
service of process in any such legal action or proceeding.
C. If any action or proceeding is brought by Sellers against Buyer
(or Buyer against Sellers) in connection with this Agreement and the
transactions contemplated hereby, then the losing party shall pay the
reasonable attorneys' fees and disbursements incurred by the prevailing
party in connection with such action or proceeding.
22. ASSIGNMENT.
Buyer may not assign Buyer's interest in this Agreement without the
prior written consent of Sellers, except that Sellers' consent shall not be
required for an assignment to any Affiliate (hereinafter defined) of Buyer.
As used herein, "Affiliate" shall mean any subsidiary corporation or
partnership or other entity, at least a majority of which is owned,
directly or indirectly, by Buyer. No assignment of Buyer's interest under
this Agreement shall release Buyer from any of its obligations hereunder.
Except as aforesaid, the parties hereto do not intend to confer any right
or benefit hereunder to or on any other person, firm or corporation other
than the parties hereto.
23. PARAGRAPH HEADINGS.
The headings of the various paragraphs of this Agreement have been
inserted solely for the purposes of convenience, are not part of this
Agreement and shall not be deemed in any manner to modify, explain, expand
or restrict any of the provisions of this Agreement.
24. BINDING EFFECT.
This Agreement does not constitute an offer to sell and shall not
bind Sellers unless and until Sellers, in Sellers' sole discretion, elect
to be bound hereby by executing and unconditionally delivering to Buyer an
original or an original counterpart hereof.
25. NOTICES.
All notices, demands or requests (collectively, "notices") made
pursuant to, under or by virtue of this Agreement must be in writing and
sent to the party or parties to whom or to which such notice, demand or
request is being sent, by certified mail, return receipt requested or
delivered by hand with receipt acknowledged in writing or by facsimile
(followed the next business day with a copy delivered by national overnight
courier) or national overnight courier, as follows:
To Sellers:
c/o London & Leeds Development Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Handsman & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
and
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Pircher, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
1999 Avenue of the Stars - Suite 2600
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
To Buyer:
c/o Reckson Associates Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
To Escrow Agent:
c/o Commonwealth Land Title Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
All notices (i) shall be deemed given when received in accordance herewith
and (ii) may be given either by a party or such party's attorney-at-law.
Notices also may be given by telephone facsimile transmission, provided
that an original copy of said transmission shall be sent to the addressee
by nationally utilized overnight delivery services following such
transmission. Telephone facsimiles shall be deemed delivered on the date of
such transmission. Extensions of time and/or adjournments of dates may be
granted by a party or such party's attorney-at-law as identified herein.
26. NO RECORDING OR NOTICE OF PENDENCY.
The parties agree that neither this Agreement nor any memorandum or
notice thereof shall be recorded and Buyer agrees not to file any notice of
pendency against the Property unless (i) Sellers shall have defaulted in
its obligations hereunder, (ii) Buyer shall have given Sellers written
notice of same, and (iii) Sellers shall have failed to remedy same within
thirty (30) days of said notice. In such event, Sellers shall timely
provide Buyer with any acknowledgments necessary for recordation.
27. SELLERS' COVENANT.
Sellers covenant and agree to continue to operate the Property
between the date hereof and the Closing Date in a manner substantially
equivalent to that manner in which the Property was operated by the Sellers
in the past, provided however that in no event shall Sellers be obligated
to make any capital expenditure at the Property.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date above set forth.
SELLERS:
Tax ID#▇▇-▇▇▇▇▇▇▇ ROYAL EXECUTIVE PARK I
By: JMB Income Properties, LTD.-X,
a limited partnership, general partner
By: JMB Realty Corporation, a Delaware
Corporation, general partner
By:
Name:
Title:
By: London & Leeds-Rye
Corporation, general partner
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, vice president
Tax ID #▇▇-▇▇▇▇▇▇▇ ROYAL EXECUTIVE PARK II
By: JMB Income Properties, Ltd-XI,
a limited partnership,
general partner
By: JMB Realty Corporation,
a Delaware Corporation,
managing general partner
By:
Name:
Title:
By: London & Leeds-Rye
Corporation, General Partner
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, vice president
Tax ID #▇▇-▇▇▇▇▇▇▇ ROYAL EXECUTIVE PARK III
By: London & Leeds-Rye
Corporation, General Partner
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, vice president
BUYER:
Tax ID #- RECKSON OPERATING PARTNERSHIP, L.P.
By:
Name:
Title:
As to its obligations under
Paragraph 3 hereof
Commonwealth Land Title Insurance Company, Escrow Agent
By:________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Exhibit A-1
-----------
Legal Description - Phase 1
Exhibit A-2
----------
Legal Description - Phase 2
Exhibit A-3
-----------
Legal Description - Phase 3
Exhibit B-1, B-2 & B-3
----------------------
Permitted Exceptions
The standard printed exceptions and exceptions numbered 1 through 7, 14
through 17, 20 through 23, and 25 through 27 as shown on the Title Report,
dated November 24, 1997, of Commonwealth Land Title Insurance Company
(Title No. WP971062), and
Exceptions numbered 13 through 15 as shown on the Title Report, dated
November 24, 1997, of First American Title Insurance Company of New York
(Title No. 221-W-6813).
Together with all matters disclosed to Buyer prior to the end of the Review
Period.
Exhibit "C"
-----------
ASSIGNMENT AND ASSUMPTION OF LEASES
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, [ROYAL EXECUTIVE PARK I][ROYAL EXECUTIVE PARK
II][ROYAL EXECUTIVE PARK III], having an office c/o London & Leeds
Development Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Assignor") hereby sells, assigns and transfers to RECKSON OPERATING
PARTNERSHIP, L.P., a New York limited partnership, having an office at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Assignee") all its
rights, title and interest in and to all the leases affecting the premises
located at ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Executive Park, Rye Brook, New York
10573 (collectively, the "Leases") and more particularly described on
Schedule A attached hereto, with all security deposits and interest
received thereon relating to said Leases listed on Schedule A attached
hereto.
This Assignment is made without recourse to Assignor and without
covenant or warranty, express or implied, by Assignor, except as otherwise
set forth herein or in the Sale-Purchase Agreement pursuant to which this
Assignment is made.
TO HAVE AND TO HOLD the Leases and said security deposits and
interest received thereon unto the Assignee and its successors and
assignees forever.
Assignee hereby accepts said assignment and agrees to assume all of
the obligations of "Landlord" under the Leases arising from and after the
date hereof. Assignee hereby agrees to indemnify and hold harmless
Assignor from any and all liabilities accruing under said Leases from and
after the date hereof. Assignor hereby agrees to indemnify and hold
harmless Assignee from any and all liabilities accruing under said Leases
prior to the date hereof, subject to the provisions and limitations on
Assignor's liability as set forth in the Sale-Purchase Agreement pursuant
to which this Assignment is made (including without limitation Paragraph 15
(B) thereof).
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
Assignment as of the __ day of December, 1997.
ASSIGNOR:
[ROYAL EXECUTIVE PARK I
By: JMB Income Properties, LTD.-X,
a limited partnership, general partner
By: JMB Realty Corporation, a Delaware
Corporation, general partner
By:
Name:
Title:
By: London & Leeds-Rye
Corporation, general partner
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, vice president]
[ROYAL EXECUTIVE PARK II
By: JMB Income Properties, Ltd-XI,
a limited partnership, general partner
By: JMB Realty Corporation, a Delaware
Corporation, managing general partner
By:
Name:
Title:
By: London & Leeds-Rye
Corporation, General Partner
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, vice president]
[ROYAL EXECUTIVE PARK III
By: London & Leeds-Rye
Corporation, General Partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, vice president]
ASSIGNEE:
RECKSON OPERATING PARTNERSHIP, L.P.
By:
Name:
Title:
Schedule A
----------
Leases
Exhibit "D"
-----------
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, [ROYAL EXECUTIVE PARK I][ROYAL EXECUTIVE PARK
II][ROYAL EXECUTIVE PARK III], having an office c/o London & Leeds
Development Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Assignor") hereby sells, assigns and transfers to RECKSON OPERATING
PARTNERSHIP, L.P., a New York limited partnership, having an office at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Assignee"), the
following:
1. All of Assignor's interest in and to those certain contracts
listed on Schedule A, attached hereto (the "Contracts") between Assignor
and those certain contractors (the "Contractors"), which contracts relate
to the operation and maintenance of buildings located at Rye Brook, New
York, commonly known as Phase [I][II][III] of the Royal Executive Park
(collectively, the "Premises").
2. Assignee hereby assumes, from and after the date hereof, the
performance of all of the terms, covenants and conditions of the Contracts
herein sold, assigned and transferred by Assignor which are the owner's
obligation thereunder and are to be performed by the owner from and after
the date hereof, and will defend with counsel approved by Assignor, save
harmless and indemnify Assignor from and against all claims, demands and
liabilities and all costs and expenses arising out of any failure of
Assignee to so perform from and after the date hereof or arising out of any
breach of this Assignment.
4. Assignor hereby agrees to defend, with counsel approved by
Assignee, save harmless and indemnify Assignee from and against all claims,
demands and liabilities and all costs and expenses arising out of any
failure of Assignor to perform any obligations of the owner thereunder
arising under any of the Contracts prior to the date hereof, subject to the
provisions and limitations on Assignor's liability as set forth in the
Sale-Purchase Agreement pursuant to which this Assignment is made
(including without limitation Paragraph 15 (B) thereof).
5. With respect to any actions now or hereafter being made against
Assignor in connection with any of the Contracts, Assignor reserves all
rights to the extent necessary to defend against any claims brought by any
third parties and to assert counterclaims against such third parties, in
circumstances where such third parties have asserted claims against
Assignor (whether such claims are in response to a suit brought by Assignee
or otherwise).
6. Assignor and Assignee from time to time will execute and
deliver all such instruments and take all such action as the other may
reasonably request in order further to effectuate the purposes of this
instrument and to carry out the terms hereof.
This Assignment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have dully executed this
Assignment the __ day of December, 1997.
ASSIGNOR:
[ ROYAL EXECUTIVE PARK I
By: JMB Income Properties, LTD.-X,
a limited partnership, general partner
By: JMB Realty Corporation, a Delaware
Corporation, general partner
By:
Name:
Title:
By: London & Leeds-Rye
Corporation, general partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
vice president]
[ROYAL EXECUTIVE PARK II
By: JMB Income Properties, Ltd-XI,
a limited partnership, general partner
By: JMB Realty Corporation, a Delaware
Corporation, managing general partner
By:
Name:
Title:
By: London & Leeds-Rye
Corporation, General Partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
vice president]
[ROYAL EXECUTIVE PARK III
By: London & Leeds-Rye
Corporation, General Partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, vice president]
ASSIGNEE:
RECKSON OPERATING PARTNERSHIP, L.P.
By:
Name:
Title:
Schedule A
----------
Contracts
Exhibit E
---------
Form of Tenant Estoppel Certificate
----------------------------------
Exhibit F
----------
Lease Schedule
-------------
Exhibit G
---------
Pending Actions
---------------
Exhibit H
---------
ROYAL EXECUTIVE PARK I & II CONTRACT LIST
