ASSIGNMENT AND ASSUMPTION OF SELLER’S INTEREST IN OPERATING LEASE
ASSIGNMENT
AND ASSUMPTION OF
SELLER’S
INTEREST IN OPERATING LEASE
THIS
ASSIGNMENT AND ASSUMPTION OF SELLER’S INTEREST IN OPERATING LEASE (this
“Assignment”), dated as of the 4th
day of
January, 2007, is made by and between Xxxxxxxxx Associates, L.P.
a New
York limited partnership (“Assignor”), and 0000 Xxxxxxxx Xxxx Xxxxxx LLC, a
Delaware limited liability company (“Assignee”).
WHEREAS,
Assignor and Assignee entered into that certain Sale and Purchase Agreement
dated as of the 25th
day of
October, 2006 (the “Sales Contract”) for the sale and purchase of the Property
(as such term is defined in the Sales Contract);
WHEREAS,
pursuant to the Sales Contract, Assignor desires to assign, transfer, set over
and deliver to Assignee all of Assignor's right, title and interest as lessee
under that certain Sub-Lease dated February 1, 1954, between Xxxx & Xxxxx,
Inc., and landlord, and Assignor, as tenant, which Sub-Lease was recorded in
the
Office of the Register of the City of New York, New York County, on February
6,
1954 in Liber 4868, Page 339 (the “Operating Lease”); and
WHEREAS,
Assignee desires to assume the duties and obligations of Assignor with respect
to the Operating Lease;
NOW,
THEREFORE, in accordance with the Sales Contract and in consideration of the
sum
of TEN AND NO/100 DOLLARS ($10.00), the receipt and sufficiency of which are
hereby acknowledged, the parties do hereby covenant and agree as follows and
take the following actions:
1. Assignor
does hereby assign, transfer, set over and deliver unto Assignee, without
representation, warranty or recourse, all of Assignor’s right, title and
interest in and to the Operating Lease.
2. THE
OPERATING LEASE IS BEING ASSIGNED WITHOUT ANY REPRESENTATION, WARRANTY OR
RECOURSE BY OR AGAINST ASSIGNOR WHATSOEVER. ASSIGNEE IS HEREBY ACQUIRING THE
OPERATING LEASE BASED SOLELY UPON ASSIGNEE’S OWN INDEPENDENT INVESTIGATIONS AND
NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY ASSIGNOR OR ASSIGNOR’S AGENTS OR
REPRESENTATIVES. ASSIGNOR SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESSED OR IMPLIED,
CONCERNING THE OPERATING LEASE OR ASSIGNOR’S TITLE THERETO. WITHOUT LIMITATION
OF THE FOREGOING, ASSIGNEE’S ACQUISITION OF THE OPERATING LEASE IS SUBJECT TO
ALL OF THE PERMITTED EXCEPTIONS SET FORTH IN (AND AS SUCH TERM IS DEFINED IN)
THE SALES CONTRACT.
3. Assignee
hereby accepts the foregoing assignment of the Operating Lease and hereby
assumes all duties and obligations of Assignor thereunder, arising on and after
the date hereof. Assignee shall defend, indemnify, and hold harmless Assignor
against and from all claims, liabilities, suits, judgments, losses, damages,
costs and expenses (including, without limitation, attorneys’ fees and
disbursements) asserted against, suffered or incurred by Assignor, its
successors or assigns, arising out of or in connection with (i) the failure
of
Assignee to pay, perform or observe any of the terms, covenants and conditions
of the Operating Lease required to be paid, performed or observed by the lessee
thereunder on or after the date hereof and/or (ii) any acts or omissions
occurring on or after the date hereof in connection with the Operating Lease.
The foregoing provisions of this Paragraph 3 shall not limit or otherwise affect
any indemnification or other obligations of the purchaser, its successors or
assigns under or pursuant to this Assignment and/or under or pursuant to the
Sales Contract.
4. In
addition to and without limitation of the provisions of Paragraph 3 above and
the provisions of the Sales Contract, Assignee shall defend, indemnify and
hold
harmless Assignor from and against any and all claims, liabilities, suits,
judgements, losses, damages, costs and expenses (including, without limitation,
attorneys’ fees and disbursements) asserted against, suffered by or incurred by
Assignor, its successors or assigns, arising out of or in connection with this
Assignment, whether arising or accruing prior to, at the time of, or subsequent
to, the date of this Assignment.
5. This
Assignment shall be (a) binding upon, and inure to the benefit of, the parties
to this Assignment and their respective heirs, legal representatives, successors
and assigns, and (b) construed in accordance with the laws of the jurisdiction
in which the Property is located, without regard to the application of choice
of
law principles, except to the extent such laws are superseded by federal
law.
6. This
Assignment may be executed in any number of counterparts, which together shall
constitute a single agreement of the parties hereto. This Assignment shall
be
duly recorded by Assignee in the office of the Register of the City of New
York,
New York County, at Assignee’s expense, within five (5) days after the date this
Assignment shall be executed and delivered by the parties.
7. By
execution of a copy of this Assignment, Lightstone Holdings, LLC (“Guarantor”)
hereby absolutely, unconditionally and irrevocably guarantees the full and
timely performance, payment and observation by Assignee of all of Assignee’s
covenants and obligations under and/or pursuant to this Assignment. Guarantor
hereby waives notice of acceptance of the provisions of this paragraph 7, notice
of default under this Assignment or any other notices required under this
Assignment, and all other notices to which Guarantor might otherwise be
entitled, whether by statute, rule of law or otherwise, and any demand for
payment or performance pursuant to the provisions of this paragraph 7.
Guarantor’s obligations under the provisions of this paragraph 7 shall remain in
full force and effect without regard to, and shall not be impaired or affected
by: (a) any amendment, extension, renewal or modification of, or addition or
supplement to, any of the terms, conditions or provisions of this Assignment;
(b) any compromise, release, consent, extension, indulgence or other action
or
inaction with respect to any of the terms, conditions or provisions of this
Assignment; (c) any exercise, non-exercise or delay in exercise by Assignor
of
any right, power or remedy under or in respect of this Assignment, or any waiver
of any such right, power or remedy; (d) any bankruptcy, insolvency,
reorganization, arrangement, adjustment, composition, liquidation, or the like
of Assignee or any other guarantor, or the discharge or release of Assignee
or
any other guarantor in any such bankruptcy proceeding; (e) any sale, lease
or
transfer of any or all of the assets, shares of stock, partnership interests
or
other ownership interests of Assignee or Guarantor; or (f) any other
circumstance, whether or not Guarantor, Assignee or Seller shall have had actual
or constructive notice or knowledge thereof. The liability of Guarantor is
coextensive with that of Assignee and also joint and several with Assignee,
and
action or suit may be brought against Guarantor and carried to final judgment
and/or completion and recovery had, either with or without making Assignee
a
party thereto. Insofar as the payment by of any sums of money to Assignor is
involved, the provisions of this paragraph 7 shall constitute a guaranty of
payment and not of collection.
8. Assignor,
in compliance with Section 13 of the Lien Law, covenants that Assignor will
receive the consideration for this conveyance and will hold the right to receive
such consideration as a trust fund to be applied first for the purpose of paying
the cost of the improvement and will apply the same first to the payment of
the
cost of the improvement before using any part of the total of the same for
any
other purpose.
IN
WITNESS WHEREOF, this Assignment has been signed and delivered by the parties
as
of the date first above written.
ASSIGNOR:
Xxxxxxxxx
Associates, L.P.,
a
New
York limited partnership
|
By: Xxxxxxxxx
Ltd., general partner
|
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| by: /s/ Xxxxxx X. Xxxxxxxxx | |||
|
Name:
Xxxxxx
X. Xxxxxxxxx
|
|||
|
Title:
President
|
ASSIGNEE:
0000
Xxxxxxxx Xxxx Xxxxxx LLC
a
Delaware limited liability company
| By: /s/ Xxxxx Xxxxxxxxxxxx | |||
|
Name: Xxxxx
Xxxxxxxxxxxx
|
|||
|
Title: President
|
GUARANTOR:
Lightstone
Holdings, LLC
| By: /s/ Xxxxx Xxxxxxxxxxxx | |||
|
Name: Xxxxx
Xxxxxxxxxxxx
|
|||
|
Title: President
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