Exhibit 10.13
00 Xxxxxxx Xxxxx
OPTION TO PURCHASE
THIS OPTION TO PURCHASE (the "AGREEMENT") made this 25th day of July, 1997
by and between Green 17 Battery LLC, having an address at 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx ("SELLER") and XX Xxxxx Operating Partnership, L.P., having
an address at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("PURCHASER").
WHEREAS, Purchaser desires to acquire an option to purchase Seller's
interest as contract vendee ("SELLER'S INTEREST") of the Premises, as defined in
the Agreement of Sale attached hereto as EXHIBIT A and made a part hereof (the
"AGREEMENT OF SALE"); and
WHEREAS, Seller desires to grant to Purchaser an option to purchase the
Seller's Interest;
NOW, THEREFORE, in pursuance of said agreement and in consideration of the
sum of Ten Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Seller hereby grants to Purchaser an option, upon the terms and
conditions hereinafter set forth (the "OPTION"), to acquire the Seller's
Interest. The Option may be exercised by Purchaser in the manner hereinafter
set forth from the date hereof through and including the tenth (10th)
anniversary of the date hereof (the "OPTION PERIOD"). In the event Purchaser
elects to exercise the Option, Purchaser shall give written notice thereof to
Seller (the "OPTION NOTICE"), which Option Notice must (a) be received by Seller
on or before the expiration of the Option Period and (b) be accompanied by
Purchaser's unendorsed certified check in an amount equal to Seller's Investment
(as defined below) to the order of Seller. In the event that the Option Notice
is not delivered to Seller on or prior to the expiration of the Option Period or
the Option Notice is not accompanied by Purchaser's unendorsed, certified check
in an amount equal to the Seller's Investment, the Option shall be terminated
and of no further force and effect and neither party shall have any further
rights or liabilities under this paragraph. In the event the Option Notice and
the Seller's Investment are delivered to Seller prior to the expiration of the
Option Period, Seller shall, assign all of its right title and interest in the
Agreement of Sale to Purchaser pursuant to an assignment in the form of EXHIBIT
B attached hereto and made a part hereof. As used herein "SELLER'S INVESTMENT"
shall mean a sum equal to all funds of whatever nature invested by Seller in
connection with the acquisition of the Premises, including, without limitation,
(a) all sums paid to 17 Battery Associates LLC ("BATTERY ASSOCIATES") pursuant
to the Agreement of Sale, (b) sums incurred in connection with any financing of
sums paid to Battery Associates or otherwise incurred in connection with the
purchase of the Premises, including, without limitation, principal and interest
and commitment and application fees, (c) all accounting, legal, architectural,
and engineering fees and expenses, (d) all other fees and expenses incurred in
connection with any of the foregoing and (e) interest on all such sums at a rate
equal to 12% from the date each such expense is actually incurred through and
including the date the Option is exercised.
2. Seller may not sell or otherwise transfer the Seller's Interest to any
party other than Purchaser (a "THIRD PARTY") without giving at least thirty (30)
days prior written notice (the "SALE NOTICE") of such sale or transfer to
Purchaser, which notice shall be accompanied by a copy of the proposed contract
to be executed in connection with such sale or transfer. Upon receipt of the
Sale Notice, Purchaser may, by giving notice to Seller within fifteen (15) days,
exercise the Option on the terms contained herein and, at the sole and absolute
option of Purchaser, either sell the Seller's Interest to the Third Party on the
terms and conditions set forth in the aforementioned proposed contract, or such
other terms as Purchaser and Third Party shall subsequently agree upon, or
retain the option to purchase the Seller's Interest pursuant to the terms
hereof. All contracts which Seller may enter into which relate to the sale or
transfer of the Seller's Interest after the date hereof shall specifically state
that they are subject and subordinate to the rights of Purchaser hereunder. In
the event that Purchaser does not exercise the Option on the terms contained
herein and a sale or transfer of the Seller's Interest by Seller to a Third
Party is consummated, Seller shall pay to Purchaser on the date upon which such
sale or transfer is consummated, a sum equal to (a) the gross sales price for
the Seller's Interest (including normal and customary closing adjustments) minus
(b)(i) Seller's Interest, (ii) all Federal income tax payable by the partners of
Seller which results from the sale of the Premises and (iii) other normal and
customary costs attributable to the sale of the Premises, including, without
limitation, transfer taxes, brokerage commissions, reasonable legal fees and
reasonable accounting fees (the "NET AFTER TAX PROFIT"). Upon the payment of
Seller's Net After Tax Profit to Purchaser, this Agreement shall be terminated
and of no further force and effect and neither party shall have any further
rights or liabilities hereunder.
3. Seller represents and warrants that (a) it is the sole owner of, and
has good and marketable title to, the Seller's Interest, (b) Seller has not
granted an option or right of first refusal to purchase the Seller's Interest to
any party other than Purchaser and (c) Seller is not a "foreign person" within
the
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meaning of Section 1445 of the Internal Revenue Code, as amended, or any
regulation promulgated thereunder.
4. Seller covenants that (a) it will not modify the Purchase Agreement or
enter into any agreement with respect to the Premises which in any way would
have a material adverse effect upon the rights of Purchaser hereunder without
Purchaser's prior written consent, which consent may be withheld or granted in
Purchaser's sole discretion and (b) that it will not purchase the Premises or
give a Purchaser's Closing Notice (as defined in the Agreement of Sale) without
first giving Purchaser 15 days prior written notice and the opportunity to
exercise the Option.
5. Seller and Purchaser mutually represent and warrant that neither
Seller nor Purchaser know of any broker who has claimed, or may have the right
to claim, a commission or any similar finder's fee in connection with the
transaction contemplated by this Agreement. Seller and Purchaser shall
indemnify and defend each other against any costs, claims or expenses, including
reasonable attorneys' fees, arising out of the breach on their respective parts
of any representations, warranties or agreements contained in this paragraph.
The representations and obligations under this paragraph shall survive the
closing of the transactions contemplated in this Agreement (the "CLOSING") or,
if the Closing does not occur, the termination of this Agreement.
6. All notices hereunder shall be in writing and may be given either by
(a) federal express or other nationally recognized overnight courier or (b) hand
delivery, in each case to the Seller or Purchaser, as applicable, at the address
first set forth above with a copy in either case to Xxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Attn: Xxxxx X. Xxxxxxxxxx, Esq.
Notices shall be deemed given one day after posting, if given pursuant to (a)
above or upon delivery, if given pursuant to (b) above.
7. Time shall be of the essence with regard to all notices given
hereunder.
8. All matters relating to the operation, construction or interpretation
of this Agreement shall be governed and determined by the internal laws of the
State of New York, without giving effect to the principles of conflicts of laws.
9. Unless specifically provided herein, no failure by any party to insist
upon the strict performance of any covenant, duty, agreement or condition of
this Agreement or to exercise any right or remedy upon a breach thereof shall
constitute a waiver of any such breach of any other covenant, agreement, term or
condition set forth herein. Neither this Agreement nor any provision hereof may
be waived, modified, amended, discharged or terminated except by an instrument
signed by the party against whom the enforcement of such waiver, modification,
amendment, discharge or
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termination is sought, and then only to the extent set forth in such instrument.
No waiver shall affect or alter the remainder of this Agreement but each and
every covenant, agreement, term and condition hereof shall continue in full
force and effect with respect to any other then existing or subsequent breach.
10. This Agreement constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings of the parties in connection
therewith. No covenant, representation or condition not expressed in this
Agreement shall affect, or be effective to interpret, change or restrict, the
express provisions of this Agreement.
11. This Agreement may not be assigned, transferred or conveyed by
Purchaser to any person(s) or entity without the prior written consent of
Seller.
12. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs or successors and permitted assigns.
13. Exercise by Purchaser of the Option shall be subject to the approval
of a majority of the Independent Directors. As used herein "Independent
Directors" shall mean the directors of XX Xxxxx Realty Corp. (the "COMPANY") who
are neither officers of the Company nor affiliated with Seller.
14. No provision of this Agreement is intended, nor shall it be
interpreted, to provide or create any third party beneficiary rights or any
other rights of any kind in any customer, affiliate, stockholder, partner,
director, officer or employee of any party hereto or any other person or entity.
15. If any provision of this Agreement, or the application thereof, is for
any reason held to any extent to be invalid or unenforceable, the remainder of
this Agreement and application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties hereto further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provision and to execute any amendment,
consent or agreement deemed necessary or desirable by Purchaser to effect such
replacement.
16. The parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement
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were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any federal or state court
located in New York (as to which the parties agree to submit to jurisdiction for
the purposes of such action), this being in addition to any other remedy to
which they are entitled under this Agreement or otherwise at law or in equity.
17. The parties hereto each agree to do such other and further acts and
things, and to execute and deliver such instruments and documents (not creating
any obligations additional to those otherwise imposed by this Agreement) as
either may reasonably request from time to time, whether at, before or after the
Closing, to confirm or effectuate the provisions of this Agreement.
* * * *
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IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement the
day and year first above written.
GREEN 17 BATTERY LLC, Seller
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
Member
XX XXXXX OPERATING PARTNERSHIP, L.P.,
Purchaser
By: XX Xxxxx Realty Corp.,
its general partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
President
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EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF CONTRACT
Agreement made as of this ___ day of ____________, by and between
_____________ , a ______________ having an address at _________________________
("ASSIGNOR") and ___________________ a ______________ having an address at
________________ ("ASSIGNEE").
RECITALS
Assignor is the contract vendee under that certain agreement of sale
between Assignor, as purchaser, and 17 Battery Associates LLC, as seller, dated
as of June 27, 1997, covering the property and interests more particularly
therein (the "CONTRACT").
Pursuant to the Option to Purchase dated as of ____________ (the "OPTION"),
Assignor agreed, INTER ALIA, to assign the Contract, to Assignee and Assignee
agreed to assume Assignor's obligations thereunder and with respect thereof.
AGREEMENTS
In consideration of the promises and conditions contained herein, and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns to Assignee, without warranty, representation
or recourse, all of its right, title and interest in, to and under the Contract
and to the Downpayment (as defined therein).
2. Assignee hereby assumes the Contract and all of Assignor's obligations
under the Contract and Assignee agrees to indemnify Assignor against and hold
Assignor harmless from any and all costs, damages, liabilities and expenses,
including, without limitation, reasonable attorney's fees, imposed upon or
incurred by Assignor by reason of Assignee's failure to perform the purchaser's
obligations under the Contract arising from and after the date of this
Agreement.
3. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, their successors in interest and assigns.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
ASSIGNOR:
By: _______________________
ASSIGNEE:
By: _______________________
