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EXHIBIT 10.32
TOWER 45
OPTION AGREEMENT
This Option Agreement (the "AGREEMENT"), dated as of the 31st day of
July, 1997, is entered into by and between TOWER REALTY OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"), and 000 Xxxx
00xx Xxxxxx Associates (the "GRANTOR").
R E C I T A L S:
A. The Grantor owns a limited partner interest in Tower 45 Associates
Limited Partnership, a Delaware limited partnership (the "PARTNERSHIP").
B. The Operating Partnership desires to acquire through a contribution
to capital from the Grantor, and the Grantor desires to grant to the Operating
Partnership, an option to acquire, on the terms and conditions set forth herein,
all interests owned by the Grantor in the Partnership as set forth on Schedule A
attached hereto and any other direct or indirect interests the Grantor may have,
whether now owned or hereinafter acquired, in the Partnership, or in the
properties owned by the Partnership (collectively, the "INTERESTS".)
C. The Operating Partnership desires to acquire the Interests in
connection with (i) the formation of Tower Realty Trust, Inc., a Maryland
corporation (the "COMPANY"), which intends to qualify as a real estate
investment trust and which is the sole general partner and a limited partner of
the Operating Partnership, and (ii) the proposed initial public offering (the
"IPO") and concurrent private placement (collectively, "OFFERINGS") of shares of
the Company's common stock, par value $0.01 per share ("COMMON STOCK").
NOW, THEREFORE, in consideration of ten dollars ($10.00) paid by the
Operating Partnership to the Grantor, these premises, the mutual covenants and
conditions set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Operating
Partnership and Grantor agree as follows:
ARTICLE I: THE OPTION
1.1 Grant of Option. The Grantor hereby irrevocably grants to the
Operating Partnership the right and option (the "OPTION") to acquire through a
contribution to the capital of the Operating Partnership all the Grantor's
right, title and interest in the Interests, including but not limited to, the
Interest set forth on Schedule A attached hereto, on the terms and conditions
set forth herein.
1.2 Term and Exercise of Option. The Option may be exercised by the
Operating Partnership at any time from and after the date hereof through 5:00
p.m. on December 31, 1997 (the "OPTION TERMINATION DATE"); provided, that if on
the Option Termination Date the Operating Partnership or the Grantor is
prohibited by applicable law, or the Operating Partnership or the Grantor is
subject to a stay, order, injunction, or similar limitation or any pending
action or proceeding to enjoin, restrain, prohibit or assess substantial damages
in respect of the exercise by the Operating Partnership of the Option, then the
Option may be exercised by the Operating Partnership during the 10 business day
period commencing on the first business day following the removal of each such
prohibition, stay, order, injunction, action, proceeding or similar limitation
in effect at that time. Subject to the foregoing, if the Operating Partnership
does not exercise the Option by the Option Termination Date, such Option shall
be deemed terminated and shall be of no further force or effect and the Grantor
shall have no further obligations hereunder.
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1.3 Acquisition Consideration. The consideration (the "ACQUISITION
CONSIDERATION") to be received by the Grantor in respect of the contribution of
the Grantor's Interests to the Operating Partnership shall be an amount of cash
equal to $185,185 subject to Section 6.9(g).
ARTICLE II: CLOSING PROCEDURES
2.1 Purchase of Interests. Upon the Operating Partnership's exercise of
the Option, the Grantor shall, in accordance with Section 2.2 hereof, transfer,
assign, and convey to the Operating Partnership and the Operating Partnership
shall accept as a contribution to its capital from the Grantor, all right, title
and interest in and to the Interests, free and clear of all Encumbrances (as
defined in Section 3.1(a)), in exchange for the Acquisition Consideration.
2.2 Closing; Conditions to Obligations. (a) (i) The Operating
Partnership shall exercise the Option by delivering to the Grantor a
notice (the "OPTION NOTICE"), which notice shall state the date (the
"CLOSING DATE") of the closing of the transactions contemplated by
Section 2.1 (the "CLOSING"), which date shall be no less than 10 days
and no more than 30 days following the date of such Option Notice.
(i) The Closing shall be held within the period specified in
the Option Notice at the offices of Battle Xxxxxx LLP, 75 East 55th
Street, New York, New York, or at the offices of the attorneys for the
lead underwriter of the IPO.
(ii) Following delivery of the Option Notice, the Operating
Partnership and the Grantor will at or prior to the Closing execute and
deliver all closing documents (the "CLOSING DOCUMENTS") required by the
Operating Partnership pursuant to Section 2.3 and, pending the Closing,
deposit such Closing Documents in escrow with Battle Xxxxxx, LLP as
escrow agent of the Operating Partnership (the "ESCROW AGENT").
(b) The Closing will occur simultaneously with the closing of the
Offerings (the "OFFERINGS CLOSING").
(c) The following deliveries shall be made at the Closing:
(i) the Operating Partnership shall cause to be delivered to
the Escrow Agent or its designee the Acquisition Consideration
delivered in immediately available funds by check or wire transfer, and
(ii) upon receipt of the consideration set forth in clause (i)
above and the documents and deliveries required by Section 2.3, the
Escrow Agent will release the Closing Documents to the Operating
Partnership and deliver to the Grantor the Acquisition Consideration.
(d) Notwithstanding any other provision of this Agreement, the
Operating Partnership may, in its sole discretion, elect not to consummate the
contribution of the Interests as follows:
(iii) in the event that the Grantor either identifies in its
Assignment as defined in and delivered pursuant to Section 2.3(a) a
breach of or other exception with respect to any of the
representations, warranties or covenants contained in Article III or is
otherwise then in breach of this Agreement beyond applicable grace and
notice periods, or
(iv) in the event that all authorizations, consents or
approvals of any governmental or administrative agency or authority or
any third party necessary in order to consummate the contribution of
the Interests are not received or waived, or there exists an order or
judgment enjoining, restraining or prohibiting, or assessing
substantial damages in respect of such consummation, or there shall be
any action or proceeding instituted to enjoin, restrain, prohibit or
assess substantial damages in respect of such consummation,
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then, the Operating Partnership shall, in lieu of the delivery of the
Acquisition Consideration pursuant to clause (c)(i) above notify the Escrow
Agent of such election and direct the Escrow Agent to return the Grantor's
Closing Documents to the Grantor.
(e) Except as the result of a default by the Grantor hereunder, if the
Closing does not occur within 30 days of the date of the Option Notice, then
neither the Operating Partnership nor the Grantor shall have any obligations
under the Closing Documents, the Closing Documents shall be deemed null and void
ab initio and the Operating Partnership will direct the Escrow Agent to destroy
the Closing Documents it holds. This Agreement shall thereafter remain in effect
and the Operating Partnership may thereafter exercise the Option again at any
time before the Option Termination Date.
2.3 Documents to Be Delivered at the Closing. At or prior to the
Closing, the Grantor shall, directly or through the attorney-in-fact appointed
pursuant to Article V hereof, execute, acknowledge where deemed necessary or
desirable by the Operating Partnership, and deliver to the Escrow Agent, in
addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be
in the form attached hereto as Exhibit A attached hereto and shall contain a
warranty of title that the Grantor owns the Interests free and clear of all
Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and
warranties and the satisfaction of all covenants contained in Article
III hereof, or
(ii) if such reaffirmation cannot be made, identify those
representations, warranties and/or covenants contained in Article III
hereof which the Grantor can no longer make or comply with, represent
that the Grantor has used reasonable efforts, which shall not require
Grantor to commence litigation, to take such actions as would permit
the Grantor to make such representations and warranties and/or to
comply with such covenants, and reaffirm the accuracy of all other
representations and warranties and the satisfaction of all other
covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the
Grantor is a corporation, partnership, limited liability company or trust, a
certified copy of all necessary or appropriate corporate resolutions or
partnership, limited liability company or trust actions authorizing the
execution, delivery and performance by the Grantor of this Agreement and the
Closing Documents.
(c) If requested by the Operating Partnership in the case where the
Grantor is a corporation, partnership, limited liability company or trust, an
opinion from counsel for the Grantor in form and content reasonably acceptable
to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general
partnership, limited liability company or trust duly organized, validly
existing and in good standing under the laws of the state of its
organization and had and has all applicable power and authority to
execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of
this Agreement and the Closing Documents, and the transactions
contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the
Grantor's charter and/or bylaws, partnership agreement,
operating agreement and articles of organization or
declaration of trust, as applicable, or, to the knowledge of
such counsel, any indenture, deed of trust, mortgage, loan or
credit agreement or other material agreement or instrument to
which the Grantor is a party or by which
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it or its assets or properties are bound or affected, except
for such breach or violation as the Operating Partnership has
represented and warranted will be waived or cured, or
discharged or repaid prior to or contemporaneously with the
Closing;
(B) to the knowledge of such counsel, constitute a
violation or any order, judgment or decree to which the
Grantor is a party or by which it or any of its assets or
properties are bound or affected; or
(C) to the knowledge of such counsel, result in the
creation of any lien, charge or encumbrance upon any of the
Grantor's assets or properties, except for Permitted Pledges
(as defined in Section 3.1(a)); and
(iii) all applicable corporate, partnership, limited liability
company or trust action necessary for the Grantor to execute and deliver this
Agreement and the Closing Documents and to perform the transactions contemplated
hereby and thereby has been taken and that the same have been validly executed
and delivered and are the valid and binding obligations of the Grantor
enforceable against it in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors' rights and remedies generally.
(d) An affidavit establishing an exemption from the withholding
requirements of the Foreign Investment in Real Property Tax Act ("FIRPTA"), as
amended, provided, however, that if the Grantor fails to provide such an
affidavit, the Operating Partnership shall be entitled to withhold from the
Acquisition Consideration and pay to the Internal Revenue Service the sums
required to be withheld pursuant to FIRPTA (and the amount so withheld shall be
paid by the Operating Partnership to the Internal Revenue Service, in order for
the Operating Partnership to comply with the provisions of Section 1445 of the
Internal Revenue Code of 1986 or successor similar legislation, as the same may
be amended hereafter).
(e) Any other documents, agreements or instruments as the Operating
Partnership shall reasonably request in order to assign, transfer and convey the
Grantor's Interests to the Operating Partnership and to otherwise effect the
transactions contemplated hereby, including filings with any applicable
governmental jurisdiction in which the Operating Partnership is required to file
its partnership documentation.
2.4 Cessation of Offerings. If at any time the Board of Directors of
the Company determines in good faith to abandon the formation of the Company or
the Offerings, the Operating Partnership will so advise the Grantor in writing
and thereupon all parties hereto will be relieved of all obligations under this
Agreement and all Closing Documents (except for obligations arising under
Sections 2.5, 2.6, 3.5, 4.2 and 6.10).
2.5 Closing Costs. The Operating Partnership agrees to pay all of the
closing costs, other than the Grantor's legal fees, arising from the purchase of
the Interests pursuant to the exercise by the Operating Partnership of the
Option.
2.6 Default. (a) If after having exercised the Option, the Operating
Partnership fails to consummate the transactions contemplated hereby (including
a failure due to the Offerings Closing not having occurred), then the Operating
Partnership will pay to the Grantor the sum of $100.00 as liquidated and agreed
upon damages. The parties acknowledge that it would be difficult, if not
impossible, to ascertain the actual measure of the Grantor's damages in the
event of the Operating Partnership's default and the parties agree that $100.00
is a fair reflection of the Grantor's damages in such event.
(b) If the Grantor defaults with respect to its obligations under this
Agreement, the Operating Partnership shall be entitled to exercise against the
Grantor the right of specific performance, however, the Operating Partnership
shall not be entitled to collect damages, consequential, punitive or otherwise,
as a result of such default.
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2.7 Further Assurances. The Grantor will, from time to time, execute
and deliver to the Operating Partnership all such other and further instruments
and documents and take or cause to be taken all such other and further action as
the Operating Partnership may reasonably request in order to effect the
transactions contemplated by this Agreement, including instruments or documents
deemed reasonably necessary or desirable by the Operating Partnership to effect
and evidence the purchase of the Grantor's Interests by the Operating
Partnership in accordance with the terms of this Agreement.
ARTICLE III:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE GRANTOR
As a material inducement to the Operating Partnership to enter into
this Agreement and to consummate the transactions contemplated hereby, the
Grantor hereby makes to the Operating Partnership each of the representations
and warranties set forth in this Article III, which representations and
warranties (unless otherwise noted) are true as of the date hereof. As a
condition to the Operating Partnership's obligation to purchase the Interests
after the exercise of the Option, such representations and warranties must be
true in all material respects as of the Closing Date.
3.1 Title to Interests. (a) Except as set forth on Schedule C attached
hereto, the Grantor owns beneficially, free and clear of any claim, lien, pledge
(except for pledges relating to the debt or equity financing of any real
property owned by the Partnership (any such pledge, a "PERMITTED PLEDGE")),
voting agreement, option, charge, security interest, mortgage, deed of trust,
encumbrance, right of assignment, purchase right or other rights of any nature
whatsoever (each, an "ENCUMBRANCE"), and has full power and authority to convey
free and clear of any Encumbrances, its Interests and, upon delivery of an
Assignment by the Grantor conveying its Interests and delivery of the
Acquisition Consideration by the Operating Partnership for such Interests as
herein provided, the Operating Partnership will acquire good and valid title
thereto, free and clear of any Encumbrance, except Encumbrances created in favor
of the Operating Partnership by the transactions contemplated hereby or those
created by the Operating Partnership, whether voluntarily or otherwise.
(b) Based on notices received from the Partnership, the Grantor has
funded (or will fund before the same is past due) all capital contributions and
advances to the Partnership (which have been demanded from it) in which such
Interest represents an interest that are required to be funded or advanced prior
to the date hereof and the Closing.
(c) There are no agreements, instruments or understandings with respect
to any of the Interests except as set forth in the partnership agreement of the
Grantor and, in the case of any Interest constituting an interest in the
Partnership, as set forth in the partnership agreement of the Partnership.
(d) The Grantor has no interest, either direct or indirect, in any of
the partnerships or properties set forth on Schedule D attached hereto
(the"Other Partnerships and Properties") except for the Interests identified on
Schedule A which are the subject of this Agreement, and other interests in the
Other Partnerships and Properties which are the subject of other, similar,
option agreements with the Operating Partnership.
(e) In making the representations in this Section 3.1 regarding the
absence of Encumbrances and the right to transfer the Interest, and in
reaffirming any such representations and warranties, the Grantor may assume that
the consents and waivers of rights set forth in Section 6.9 hereof have been
given by all partners of the Partnership, partners in partnerships, members of
limited liability companies or beneficiaries of trusts (in each case, only in
their capacity as such) in which the Grantor's Interests represent direct or
indirect interests.
3.2 Organization; Authority; No Conflicts. (a) If the Grantor is not a
natural person, it is a corporation, limited partnership, general partnership,
limited liability company or trust duly organized, validly existing and in good
standing under the laws of the state of its organization.
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(b) The Grantor has full right, authority, power and capacity:
(i) to execute and deliver this Agreement, each Closing
Document to which it is a party and each other agreement, document and
instrument to be executed and delivered by or on behalf of the Grantor
pursuant to this Agreement;
(ii) to perform the transactions contemplated hereby and
thereby; and
(iii) to transfer, assign, convey and deliver all of the
Interests to the Operating Partnership in accordance with this
Agreement.
(c) All applicable corporate, partnership, limited liability company,
trust or other action necessary for Grantor to execute and deliver this
Agreement, the Closing Documents to which Grantor is a party and each other
agreement, document and instrument executed by or on behalf of the Grantor
pursuant to this Agreement, and to perform the transactions contemplated hereby
and thereby, has been taken, or will be taken prior to the Closing Date.
(d) This Agreement, each Closing Document to which Grantor is a party
and each other agreement, document and instrument executed and delivered by or
on behalf of the Grantor pursuant to this Agreement constitutes, or when
executed and delivered will constitute, the legal, valid and binding obligation
of the Grantor, each enforceable in accordance with its respective terms.
(e) Except for any breaches, violations or defaults which will be
waived or cured, or discharged or repaid prior to or contemporaneously with the
Closing, the execution, delivery and performance of this Agreement, the Closing
Documents to which Grantor is a party and each other agreement, document and
instrument to be executed and delivered by or on behalf of the Grantor:
(i) does not and will not violate the Grantor's charter and/or
bylaws, partnership agreement, operating agreement or declaration of
trust, as applicable;
(ii) does not and will not violate any foreign, federal,
state, local or other laws applicable to the Grantor or require the
Grantor to obtain any approval, consent or waiver of, or make any
filing with, any person or authority (governmental or otherwise) that
has not been obtained or made and which does not remain in effect; and
(iii) does not and will not result in a breach or a violation
of, constitute a default under, accelerate any obligation under or give
rise to a right of termination of, any indenture, deed of trust,
mortgage, loan or credit agreement or any other agreement, contract,
instrument, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which the
Grantor is a party or by which the property of the Grantor is bound or
affected, or, except in favor of the Operating Partnership pursuant to
the terms hereof, result in the creation of any Encumbrance on any of
the property or assets of any Partnership in which any Interest of the
Grantor represents an interest.
(f) In making the representations set forth in this Section 3.2, and in
reaffirming such representations and warranties, the Grantor may assume
(i) that the consents and waivers of rights set forth in
Section 6.9 hereof have been given by all partners of the Partnership,
partners in partnerships, members of limited liability companies or
beneficiaries of trusts (in each case, only in their capacity as such)
in which the Grantor's Interests represent direct or indirect interests
and
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(ii) that, for purposes of making such representation as of
the date hereof, any Permitted Pledge has been released.
3.3 Litigation. (a) The Grantor knows of no litigation or proceeding,
whether judicial, administrative or arbitral, pending or overtly threatened,
affecting all or any portion of the Interests or the Grantor's ability to
consummate the transactions contemplated hereby.
(b) The Grantor knows of no outstanding order, writ, injunction or
decree of any court, government, governmental entity or authority or arbitration
against or affecting all or any portion of its Interests, which in any such case
would impair the Grantor's ability to enter into and perform all of its
obligations under this Agreement.
3.4 No Other Agreements. (a) The Grantor has made no agreement with,
and will not enter into any agreement with, and has no obligation (absolute or
contingent) to, any other person or entity to sell, transfer, dispose of or in
any way encumber any of the Interests or restricting in any way the Grantor's
ability to sell the Interests to the Operating Partnership or to enter into any
agreement with respect to the Interests.
(b) In making the representations set forth in this Section 3.4, and in
reaffirming such representations and warranties, the Grantor may assume
(i) that the consents and waivers of rights set forth in
Section 6.9 hereof have been given by all partners of the Partnership,
partners in partnerships, members of limited liability companies or
beneficiaries of trusts (in each case, only in their capacity as such)
in which the Grantor's Interests represent direct or indirect interests
and
(ii) that, for purposes of making such representations as of
the date hereof, any Permitted Pledge has been released.
3.5 No Brokers. The Grantor has not entered into, and covenants that it
will not enter into, any agreement, arrangement or understanding with any person
or entity which will result in the obligation of the Operating Partnership to
pay any finder's fee, brokerage commission or similar payment in connection with
the transactions contemplated hereby.
3.6 Covenant to Remedy Breaches. The Grantor covenants to use all
reasonable efforts within its control which shall not require Grantor to
commence litigation
(a) to prevent the breach of any representation or warranty of the
Grantor hereunder,
(b) to satisfy all covenants of the Grantor hereunder and
(c) to promptly clear any breach of a representation, warranty or
covenant of the Grantor hereunder upon its learning of same.
ARTICLE IV:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE OPERATING PARTNERSHIP
As a material inducement to the Grantor to enter into this Agreement
and to consummate the transactions contemplated hereby, the Operating
Partnership hereby makes to the Grantor each of the representations and
warranties set forth in this Article IV, which representations and warranties
are true as of the date hereof and shall be true as of the date of the Closing.
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4.1 Authority. (a) The Operating Partnership is a limited partnership
duly organized, validly existing and in good standing under the laws of the
state of Delaware.
(b) The Operating Partnership has full right, authority, power and
capacity:
(i) to execute and deliver this Agreement, each Closing
Document to which it is a party and each other agreement, document and
instrument to be executed and delivered by or on behalf of it pursuant
to this Agreement and
(ii) to perform the transactions contemplated hereby and
thereby.
(c) This Agreement, each Closing Document to which the Operating
Partnership is a party and each agreement, document and instrument executed and
delivered by the Operating Partnership pursuant to this Agreement constitutes,
or when executed and delivered will constitute, the legal, valid and binding
obligation of the Operating Partnership, each enforceable in accordance with its
respective terms.
(d) The execution, delivery and performance of this Agreement, each
Closing Document to which the Operating Partnership is a party and each such
agreement, document and instrument by the Operating Partnership:
(i) does not and will not violate the partnership agreement of
the Operating Partnership;
(ii) does not and will not violate any foreign, federal,
state, local or other laws applicable to the Operating Partnership or
require the Operating Partnership to obtain any approval, consent or
waiver of, or make any filing with, any person or authority
(governmental or otherwise) that has not been obtained or made and
which does not remain in effect; and
(iii) does not and will not result in a breach or a violation
of, constitute a default under, accelerate any obligation under or give
rise to a right of termination of, any indenture, deed of trust,
mortgage, loan or credit agreement, any other material agreement,
contract, instrument, lease, permit or authorization, or any order,
writ, judgment, injunction, decree, determination or arbitration award
to which the Operating Partnership is a party or by which the property
of the Operating Partnership is bound or affected.
4.2 No Brokers. The Operating Partnership has not entered into, and
covenants that it will not enter into, any agreement, arrangement or
understanding with any person or entity which will result in the obligation of
any Grantor to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
ARTICLE V:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
As a material inducement to the Grantor to enter into this Agreement
and to consummate the transactions contemplated hereby, the Company hereby makes
to the Grantor each of the representations and warranties set forth in this
Article V, which representations and warranties are true as of the date hereof
and shall be true as of the date of the Closing.
5.1 Authority. (a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the state of Maryland.
(b) The Company has full right, authority, power and capacity as
general partner of the Operating Partnership:
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(i) to execute and deliver this Agreement, each Closing
Document and each other agreement, document and instrument to be
executed and delivered on behalf of the Operating Partnership pursuant
to this Agreement and
(ii) to perform on behalf of the Operating Partnership the
transactions contemplated hereby and thereby.
(c) This Agreement, each Closing Document to which the Operating
Partnership is a party and each agreement, document and instrument executed and
delivered by the Company on behalf of the Operating Partnership pursuant to this
Agreement constitutes, or when executed and delivered will constitute, the
legal, valid and binding obligation of the Company in its capacity as general
partner of the Operating Partnership, each enforceable in accordance with its
respective terms.
(d) The execution, delivery and performance of this Agreement, each
Closing Document to which the Operating Partnership is a party and each such
agreement, document and instrument on behalf of the Operating Partnership by the
Company:
(i) does not and will not violate the charter of the Company;
(ii) does not and will not violate any foreign, federal,
state, local or other laws applicable to the Company or require the
Company to obtain any approval, consent or waiver of, or make any
filing with, any person or authority (governmental or otherwise) that
has not been obtained or made and which does not remain in effect; and
(iii) does not and will not result in a breach or a violation
of, constitute a default under, accelerate any obligation under or give
rise to a right of termination of, any indenture, deed of trust,
mortgage, loan or credit agreement, any other material agreement,
contract, instrument, lease, permit or authorization, or any order,
writ, judgment, injunction, decree, determination or arbitration award
to which the Company is a party or by which the property of the Company
is bound or affected.
ARTICLE VI: MISCELLANEOUS
6.1 Amendment and Waiver. Any amendment hereto shall be effective only
against those parties hereto who have acknowledged in writing their consent to
such amendment. This Agreement shall not be amended without notice to or the
consent of any Grantor for the purpose of adding additional Grantors as parties
hereto or deleting Grantors as parties hereto and conforming Schedules A and B
in connection with such additions or deletions. No waiver of any provisions of
this Agreement shall be valid unless in writing and signed by the party against
whom enforcement is sought.
6.2 Entire Agreement; Counterparts; Applicable Law. This Agreement
(a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof,
(b) may be executed in several counterparts, each of which will be
deemed an original and all of which shall constitute one and the same instrument
and
(c) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of New York, without giving
effect to the conflicts of law provisions thereof.
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6.3 Assignability. This Agreement shall be binding upon, and shall be
enforceable by and inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and assigns; provided,
however, that this Agreement may not be assigned (except by operation of law) by
the Operating Partnership without the prior written consent of the Grantor, or
by the Grantor without the prior written consent of the Operating Partnership,
and any attempted assignment without such consent shall be void and of no
effect; provided, further, however, that the Operating Partnership may assign
all or any portion of this Agreement and the Closing Documents and any agreement
contemplated hereunder or thereunder to the Company or to an affiliate of the
Operating Partnership or the Company without the consent of the Grantor.
6.4 Titles. The titles and captions of the Articles, Sections and
paragraphs of this Agreement are included for convenience of reference only and
shall have no effect on the construction or meaning of this Agreement.
6.5 Third Party Beneficiary. No provision of this Agreement is
intended, nor shall it be interpreted, to provide or create any third party
beneficiary right or any other right of any kind in any customer, affiliate,
stockholder, partner, director, officer or employee of any party hereto or any
other person or entity, provided, however, that Article V and Sections 6.3 and
6.9 of this Agreement shall be enforceable by and shall inure to the benefit of
the persons described therein.
6.6 Severability. (a) 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.
(b) The parties 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 the Operating Partnership and the
Grantor to effect such replacement.
6.7 Equitable Remedies. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
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 the State of 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, subject to the limitations on damages set forth in Section 2.6(b).
6.8 Notices; Exercise of Option. Any notice or demand which must or may
be given under this Agreement (including the exercise by the Operating
Partnership of the Option) or by law shall, except as otherwise provided, be in
writing and shall be deemed to have been given (i) when physically received by
personal delivery (which shall include the confirmed receipt of a telecopied
facsimile transmission), (ii) three (3) business days after being deposited in
the United States certified or registered mail, return receipt requested,
postage prepaid, or (iii) one (1) business day after being deposited with a
nationally known commercial courier service utilizing its next day delivery
service (such as Federal Express); addressed and delivered or telecopied in the
case of a notice to the Operating Partnership to the following address and
telecopy number:
Tower Realty Operating Partnership, L.P.
c/o Feldman Equities
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Phone: (000)000-0000
Telecopy: (000)000-0000
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with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
Phone: (000)000-0000
Telecopy: (000)000-0000
and addressed and delivered or telecopied, in the case of a notice to the
Grantor, to the address and telecopy number set forth under the Grantor's name
in Schedule A hereto.
6.9 Waiver of Rights; Consents with Respect to Partnership Interests.
(a) The Grantor acknowledges that the agreements contained herein and the
transactions contemplated hereby and any actions taken in contemplation of the
transactions contemplated hereby (including the declaration of any dividend or
distribution in the form of Interests) may conflict with, and may not have been
contemplated by, the partnership agreement of one or more Other Partnerships in
which one or more of the Interests represent a direct or indirect interest or
another agreement among one or more holders of such Interests or one or more of
the partners of any such partnership.
(b) With respect to each Other Partnership in which the Interests
represents a direct or indirect interest, the Grantor expressly gives all
Consents (as defined below) (and any consent necessary to authorize the proper
parties in interest to give all Consents) and Waivers (as defined below)
necessary or desirable to facilitate any Conveyance Action (as defined below)
relating to such partnership (as such terms are defined below).
(c) The Grantor further agrees that the Grantor will take no action to
enjoin, or seek damages resulting from, any Conveyance Action by any holder of a
direct or indirect interest in a partnership in which an Interest of the Grantor
represents a direct or indirect interest.
(d) The Waivers and Consent contained in this Section 6.9 shall
terminate upon the termination of this Agreement, except as to transactions
completed hereunder prior to termination.
(e) (i) As used herein, the term "CONVEYANCE ACTION" means, with
respect to any Other Partnership having a direct or indirect ownership
interest in any property,
(A) the conveyance or agreement to convey by a partner thereof
or by any holder of an indirect interest therein of its direct or
indirect interest in such partnership to the Operating Partnership or
the Company or to another person in connection with the formation of
the Operating Partnership or the Company as described in the
Registration Statement, or
(B) the entering into by any such partner or holder of any
agreement relating to
(1) the formation of the Operating Partnership or the
Company as described in the Registration Statement,
(2) the direct or indirect acquisition by the
Operating Partnership or the Company of any such direct or
indirect interest, or
(3) the transactions described in or contemplated by
the Registration Statement, or
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(C) the taking by any such partner or holder of any action
necessary or desirable to facilitate any of the foregoing, including,
without limitation, the following (provided that the same are taken in
furtherance of the foregoing):
(1) any sale or distribution to any person of a
direct or indirect interest in such partnership or an
undivided tenant-in-common interest in the property
represented by such partnership interest,
(2) the entering into of any agreement with any
person or entity that grants to such person or entity the
right to purchase a direct or indirect interest in such
partnership, and
(3) the giving of the Consents and Waivers contained
in this Section 6.9 or consents or waivers similar thereto in
form or purpose.
(ii) As used herein, the term "CONSENTS" means, with respect
to any such partnership, any consent deemed by the Operating
Partnership to be necessary or desirable under the partnership
agreement of such partnership or any other agreement among all or any
of the holders of interests therein or any other agreement relating
thereto or referred to therein
(A) to permit any and all Conveyance Actions relating
to such partnership or to amend such partnership agreement
and/or other agreements so that no provision thereof
prohibits, restricts, impairs or interferes with any
Conveyance Action (such amendment to include, without
limitation, the deletion of provisions which cause a default
under such agreement if interests therein are transferred for
other than cash),
(B) to admit the Operating Partnership (or the
Company or any affiliate of the Operating Partnership or the
Company in accordance with Section 6.3 above) as a substitute
limited partner or general partner of such partnership upon
the Operating Partnership's acquisition of a limited or
general partner interest therein, respectively, and to adopt
such amendment as is necessary or desirable to effect such
admission,
(C) to adopt any amendment as may be deemed desirable
by the Operating Partnership, either simultaneously with or
immediately prior to the acquisition of a limited or general
partnership interest therein, provided, however, that such
amendment will not result in any increased liability on the
part of any Grantor hereunder or under the applicable
partnership agreement, and
(D) to continue such partnership following the
transfer of interests therein to the Operating Partnership (or
the Company or any affiliate of the Operating Partnership or
the Company in accordance with Section 6.3 above).
(iii) As used herein, the term "WAIVERS" means, with respect
to a partnership of which an Interest represents a direct or indirect
interest, the waiving of any and all rights that the Grantor may have
with respect to, and (to the extent possible) that any other person may
have with respect to, or that may accrue to the Grantor or other person
upon the occurrence of, a Conveyance Action relating to such
partnership, including, but not limited to, the following rights:
(A) rights of notice,
(B) rights to response periods,
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(C) rights to purchase the direct or indirect
interest of another partner in such partnership (or the
Interests represented by such partnership interest) or to sell
the Grantor's or other person's direct or indirect interest
therein to another partner,
(D) rights to sell the Grantor's or other person's
direct or indirect interest therein at a price other than as
provided herein, or
(E) rights to prohibit, limit, invalidate, otherwise
restrict or impair any such Conveyance Action or to cause a
termination or dissolution of such partnership because of such
Conveyance Action.
(f) The Grantor by its execution hereof with respect to each Other
Partnership in which an Interest owned by the Grantor represents a direct or
indirect interest therein, gives such consent as is necessary to cause each
Partnership, as applicable, to have authority to transfer all or substantially
all of the assets of such Partnership to the Operating Partnership on such terms
and conditions as such Other Partnership and the Operating Partnership may
agree.
(g) (i) The Grantor by its execution hereof gives such consent as is
necessary to cause, with respect to the partnership agreement of each
partnership in which an Interest of the Grantor represents, directly or
indirectly, a limited partner or general partner interest, an amendment
thereto to enable such partnership, to the extent permissible under
applicable law,
(A) to admit the Operating Partnership (or the
Company or any affiliate of the Operating Partnership or the
Company in accordance with Section 6.3 above) as a substitute
limited partner therein and/or a substitute general partner
therein if the Operating Partnership (or the Company or any
affiliate of the Operating Partnership or the Company in
accordance with Section 6.3 above) by the exercise of the
Option acquires a limited partnership interest or a general
partnership interest in such partnership,
(B) to redeem the interest of any other partner
therein who has not agreed to become a party to this Agreement
or a similar agreement,
(C) to distribute to all partners thereof, including
any partner who has not agreed to become a party to this
Agreement or a similar agreement, OP Units and cash (in such
proportions to each partner therein as the general partner or
general partners thereof may determine, provided that the
Grantor receives as a result of all such distributions and the
direct payment of consideration hereunder and thereunder, the
amount of cash that is in conformity with and in proportion to
the Acquisition Consideration of the Grantor provided for
herein, except that the Acquisition Consideration cannot be
reduced) and thereafter, at the Operating Partnership's
option, to dissolve, and
(D) any such other amendment as the Operating
Partnership may deem desirable,
provided that such amendment occurs simultaneously with or immediately
prior to the acquisition of the applicable partnership interest, and
provided further, that such amendment will not result in any increased
liability on the part of any Grantor hereunder or under the applicable
partnership agreement.
(ii) At the time of and in connection with the Closing, each
Attorney-in-Fact may on behalf of the Grantor execute such consents,
amendments or other instruments as it deems necessary or desirable in
connection with the foregoing.
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6.10 Confidentiality. (a) Except as required by law, the Grantor shall
treat as strictly confidential the fact that the Company is contemplating an
offering of its Common Stock until such time as the Company has filed the
Registration Statement with the Securities and Exchange Commission, and shall
not communicate at any time the terms of this Agreement to any person other than
counsel or advisors to the Grantor who agree to keep such terms confidential,
any lender holding a lien on any Interests, and to the partners of the Grantor.
(b) Except as required by law, the Grantor shall treat all information
received from the Operating Partnership or its counsel or advisors pertaining to
the Operating Partnership or the Company confidential and shall disseminate same
only to counsel to the Grantor who agree to keep such information confidential.
6.11 Computation of Time. Any time period provided for herein which
shall end on a Saturday, Sunday or bank or legal holiday shall extend to 5:00
p.m. of the next full business day. All times are New York City time.
6.12 Survival. It is the express intention and agreement of the parties
hereto that the representations, warranties and covenants of the parties set
forth in this Agreement shall survive the consummation of the transactions
contemplated hereby.
6.13 Time of the Essence. Time is of the essence with respect to all
obligations of the Grantor and Operating Partnership under this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
OPERATING PARTNERSHIP:
TOWER REALTY OPERATING
PARTNERSHIP, L.P.
By: TOWER REALTY TRUST, INC.,
its general partner
By: /s/Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer and
President
000 XXXX 00XX XXXXXX ASSOCIATES
By: /s/Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
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Schedule A
Interests
Grantor's Name & Address Description of Interests
------------------------ ------------------------
000 Xxxx 00xx Xxxxxx Associates 1-2/3% (1.67%) Class A
c/o Xxxxx Xxxxxx Limited Partner Interest in the
Xxxx, Malkin & Bettex Partnership.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
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Schedule B
Form of Acquisition Consideration
$185,185 in Cash
18
Schedule C
Exceptions to Title
None
19
Schedule D
Interests in Other Partnerships and Properties (see below)
None
Other Partnerships & Properties
Property Partnership Owner
-------- -----------------
1. 000 Xxxxxxx Xxxxxx 000 Xxxxxxx, X.X.
Xxx Xxxx, Xxx Xxxx
0. 000 Xxxxxxx Xxxxxx 000 Xxxxxxx, X.X.
Xxx Xxxx, Xxx Xxxx
0. 000 Xxxxxxx Xxxxxx 292 Madison, L.P.
New York, New York
4. 120 Executive Centre Tower Mineola Limited Partnership
Mineola, New York (former owner was CXX Mineola Limited
Partnership)
5. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000-00 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
6. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
7. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
8. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
9. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
10. Corporate Center Building 9630 Corporate Center Associates, Limited Partnership
Phoenix, Arizona
11. 0000 Xxxxx Xxxxxxx Xxxxxx 2800 Associates, L.P.
Phoenix, Arizona
12. Century Plaza Executive Villas Limited Partnership
Phoenix, Arizona
13. 0000 X. Xxxxxxxx Xxxx Xxxxxxxx 5151 Limited Partnership
Tucson, Arizona
14. One Orlando Center Magnolia Associates Limited Partnership
Orlando, Florida
15. Maitland Forum Maitland Property Investors, Ltd.
Maitland, Florida
16. 0000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxx Associates Limited Partnership
Maitland, Florida
