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EXHIBIT 10.40
PURCHASE AGREEMENT
BY AND AMONG
TOWER REALTY OPERATING PARTNERSHIP, L.P.
AND
XXXXXXX XXXXXXXXXX
Dated as of July 31, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I PURCHASE OF INTEREST AND EXCHANGE FOR CASH................................................................1
1.1 Purchase Transaction; Assignment...........................................................................1
1.2 Consideration............................................................................................. 2
1.3 Return of Retail Interests to Seller.......................................................................2
ARTICLE II CLOSING............................................................................................................2
2.1 Time and Place.............................................................................................2
2.2 Closing Deliveries.........................................................................................3
2.3 Closing Costs..............................................................................................3
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE SELLER.................................................................................................3
3.1 Title to Interests.........................................................................................3
3.2 Authority No Conflicts.....................................................................................4
3.3 Litigation.................................................................................................5
3.4 No Other Agreements........................................................................................5
3.5 No Brokers.................................................................................................5
3.6 Covenant to Remedy Breaches................................................................................6
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE OPERATING PARTNERSHIP...............................................................................6
4.1 Authority..................................................................................................6
4.2 No Brokers.................................................................................................7
ARTICLE V POWER OF ATTORNEY..........................................................................................7
5.1 Grant of Power of Attorney.................................................................................7
5.2 Limitation on Liability....................................................................................8
ARTICLE VI MISCELLANEOUS..............................................................................................8
6.1 Amendment..................................................................................................8
6.2 Entire Agreement; Counterparts; Applicable Law.............................................................9
6.3 Binding Effect.............................................................................................9
6.4 Titles.....................................................................................................9
6.5 Third Party Beneficiary....................................................................................9
6.6 Severability...............................................................................................9
6.7 Equitable Remedies........................................................................................10
6.8 Notices; Exercise of Option...............................................................................10
6.9 Waiver of Rights; Consents with Respect to Partnership Interests..........................................11
6.10 Releases and Waivers......................................................................................13
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PAGE
6.11 Confidentiality............................................................................................14
6.12 Computation of Time........................................................................................14
6.13 Survival...................................................................................................14
6.14 Time of the Essence........................................................................................14
6.15 Termination of Prior Agreement.............................................................................14
Schedule
A. Schedule of Interests
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PURCHASE AGREEMENT
This Purchase Agreement (this "PURCHASE AGREEMENT") dated as of the
31st day of July, 1997 is entered into by and among TOWER REALTY OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"),
and Xxxxxxx XxXxxxxxxx (the "SELLER").
R E C I T A L S:
A. The Seller owns the Interests (as defined in Section 1.1 herein) in
the limited liability companies set forth on Schedule A attached hereto.
B. The Operating Partnership desires to acquire, and the Seller desires
to sell, assign, transfer, contribute and convey to the Operating Partnership on
the terms and conditions set forth herein, all of the Seller's right, title and
interest in the Interests to the Operating Partnership in exchange for cash.
C. The Operating Partnership desires to acquire the Interests in
connection with the ongoing 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 as well as a limited
partner of the Operating Partnership.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Operating
Partnership and the Seller agree as follows:
ARTICLE I
PURCHASE OF INTEREST AND EXCHANGE FOR CASH
1.1 Purchase Transaction; Assignment. In exchange for the
consideration set forth in Section 1.2 herein, the receipt and sufficiency of
which is hereby acknowledged, Seller hereby assigns, transfers and conveys to
the Operating Partnership, his entire right, title and interest in and to all
interests directly or indirectly held by him in Smit-Lake, L.L.C., TERCO Realty,
L.L.C. and Xxxx-Xxxxxx, L.L.C. (collectively, the "RETAIL LLCS") and TERCO
Partners I, L.L.C. (the "COMMERCIAL LLC" and together with the Retail LLCs, the
"LLCS"), or in their respective properties, Xxxxxxxx Xxxxx, Xxxxxxxxxxxx Xxxxx
and Warner Ranch Plaza (collectively, the "RETAIL INTERESTS") and Maitland West
(the "COMMERCIAL INTEREST" and together with the Retail Interests, the
"INTERESTS"), including, without limitation, all rights to receive distributions
of money, profits and other assets from or relating to the LLCs, presently
existing or hereafter
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arising or accruing, TO HAVE AND TO HOLD the same unto the Operating
Partnership, its successors and assigns, forever. The Seller represents and
warrants that he has not transferred, sold, pledged or hypothecated, or
otherwise disposed of or encumbered, the Interests. The Seller hereby releases
the LLCs and their respective members (but only in their capacity as members of
the LLCs and in connection with the LLCs) from any and all liabilities or
obligations now or hereafter owing to the Seller, arising out of and pursuant to
the Operating Agreements of the LLCs (each, an "OPERATING AGREEMENT" and,
collectively, the "OPERATING AGREEMENTS"). The Operating Partnership hereby
assumes all obligations in respect of the Interests. Upon the execution and
delivery of this Purchase Agreement, the Seller withdraws from the LLCs for all
purposes. The parties shall take such additional actions and execute such
additional documentation as may be required in order to effect the transactions
contemplated hereby.
1.2 Consideration. The cash consideration (the "CONSIDERATION") to be
paid to the Seller in respect of the Operating Partnership's purchase of the
Retail Interests shall be $100 and in respect of the Commercial Interest shall
be $352,500.00. The consideration in respect of the Commercial Interest shall be
paid upon the consummation of the IPO (as defined in Section 5.2 herein). The
Consideration shall be paid by bank check or wire transfer as determined by the
Seller.
1.3 Return of Retail Interests to Seller. Upon the consummation of
the IPO and subject to the repayment of notes issued pursuant to the Purchase
Agreement dated as of March 31, 1997, as supplemented by the Purchase Agreement
Supplement, dated May 15, 1997, Purchase Agreement Supplement No. 2, dated as of
May 30, 1997, Purchase Agreement Supplement No. 3, dated as of May 30, 1997,
Purchase Agreement Supplement No. 4, dated as of July 9, 1997, and Purchase
Agreement Supplement No. 5, dated as of July 31, 1997, by and among the Company,
the Operating Partnership and MS Real Estate Special Situations Inc., as same
shall be supplemented and amended from time to time, the Operating Partnership
shall transfer to the Seller all of the Operating Partnership's legal and
beneficial right, title and interest in and to the Retail Interests held by the
Operating Partnership, as transferred to the Operating Partnership pursuant to
this Purchase Agreement, including without limitation, all rights to receive
distributions of money, profits and other assets from or relating to the Retail
LLCs.
ARTICLE II
CLOSING
2.1 Time and Place. The date, time and place of the closing of the
transactions contemplated hereunder (the "CLOSING") shall be the date hereof
(the "CLOSING DATE"), at 10:00 a.m. in the office of Battle Xxxxxx LLP, 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The transfers described in Article I of
this Purchase Agreement, and all closing deliveries, shall be deemed concurrent
for all purposes.
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2.2 Closing Deliveries. At the Closing, the parties shall make,
execute, acknowledge and deliver, or cause to be made, executed, acknowledged
and delivered through the Attorney-in-Fact (as designated in Section 5.1 below),
the legal documents and other items (collectively, the "CLOSING DOCUMENTS")
necessary to carry out the intention of this Purchase Agreement, which Closing
Documents and other items shall include, without limitation, the following:
(i) This Purchase Agreement;
(ii) any XXX xxxxx and records and securities or
other evidences of ownership held by the Seller; and
(iii) An affidavit from the Seller, stating under
penalty of perjury, the Sellers's United States Taxpayer Identification
Number and that the Seller is not a foreign person pursuant to section
1445(b)(2) of the Internal Revenue Code of 1986, as amended (the
"CODE") and a comparable affidavit satisfying New York and any other
withholding requirements.
2.3 Closing Costs. The Operating Partnership shall pay any documentary
transfer taxes, escrow charges, title charges and recording taxes or fees
incurred in connection with the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER
As a material inducement to the Operating Partnership to enter into
this Agreement and to consummate the transactions contemplated hereby, the
Seller hereby makes to the Operating Partnership, with respect to the Interests,
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 in exchange of payment of the Consideration.
3.1 Title to Interests. (a) The Seller owns beneficially and of
record, free and clear of any claim, lien, pledge (except for pledges relating
to the debt or equity financing of any of the properties held by the LLCs (each,
a "PROPERTY")) or encumbrance arising under the respective Operating Agreements
pursuant to which the Interests were issued (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, each such Interest and, upon delivery
of this Purchase Agreement by the Seller conveying each such Interest and
delivery of the Consideration by the Operating Partnership to Seller, the
Operating Partnership will acquire good and valid title thereto, free and clear
of any
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Encumbrance, except Encumbrances created in favor of the Operating Partnership
by the transactions contemplated hereby.
(b) The Interests have been validly issued and the Seller has funded
(or will fund before the same is past due) all capital contributions and
advances to each LLC that are required to be funded or advanced prior to the
date hereof.
(c) There are no agreements, instruments or understandings with
respect to each such Interest, except as set forth in the Operating Agreement.
(d) No Permitted Pledge will be in existence as of the date hereof,
and the Seller shall provide, at the Closing, such documentary evidence of the
release of any Permitted Pledge as the Operating Partnership may reasonably
request.
(e) In making the representations in this Section 3.1 regarding the
absence of Encumbrances, the Seller 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.
3.2 Authority No Conflicts.
(a) Seller has full right, authority, power and capacity:
(i) to execute and deliver this Purchase Agreement, each
Closing Document and each other agreement, document and instrument to
be executed and delivered by or on behalf of Seller pursuant to this
Purchase Agreement;
(ii) to perform the transactions contemplated hereby and
thereby; and
(iii) to transfer, assign, convey and deliver all of
Seller's Interests to the Operating Partnership in accordance with
this Purchase Agreement.
(b) This Purchase Agreement, each Closing Document and each other
agreement, document and instrument executed and delivered by or on behalf of
Seller pursuant to this Purchase Agreement constitutes, or when executed and
delivered will constitute, the legal, valid and binding obligation of Seller,
each enforceable in accordance with its respective terms.
(c) The execution, delivery and performance of this Purchase
Agreement, the Closing Documents and each other agreement, document and
instrument to be executed and delivered by or on behalf of such Seller:
(i) does not and will not violate any foreign, federal,
state, local or other laws applicable to Seller or require Seller 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
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(ii) 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 Seller is a party or by which the property of Seller is bound
or affected, or result in the creation of any Encumbrance on any of
the property or assets of each such LLC.
(d) In making the representations set forth in this Section 3.2,
Seller may assume that
(i) the consents and waivers of rights set forth in Section
6.9 hereof, if any, have been given by all members of each LLC, and
(ii) for purposes of making such representation as of the
date hereof, any Permitted Pledge has been released.
3.3 Litigation. (a) The Seller knows of no litigation or proceeding,
whether judicial, administrative or arbitral, pending or overtly threatened,
affecting all or any portion of the Interests or Seller's ability to consummate
the transactions contemplated hereby.
(b) Seller 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 the Interests, which in any such case
would impair Seller's ability to enter into and perform all of its obligations
under this Purchase Agreement.
3.4 No Other Agreements. (a) The Seller 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 Seller's ability
to contribute the Interests to the capital of the Operating Partnership or to
enter into any agreement with respect to any of the Interests.
(b) In making the representations set forth in this Section 3.4, the
Seller may assume that
(i) the consents and waivers of rights set forth in Section
6.9 hereof, if any, have been given by all members of each LLC, and
(ii) for purposes of making such representations as of the
date hereof, any Permitted Pledge has been released.
3.5 No Brokers. The Seller 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
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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 Seller covenants to use all
reasonable efforts within its control
(a) to prevent the breach of any representation or warranty
of the Seller hereunder,
(b) to satisfy all covenants of the Seller hereunder, and
(c) to promptly clear any breach of a representation,
warranty or covenant of the Seller hereunder upon its learning of
same.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE OPERATING PARTNERSHIP
As a material inducement to the Seller to enter into this Purchase
Agreement and to consummate the transactions contemplated hereby, the Operating
Partnership hereby makes to the Seller each of the representations and
warranties set forth in this Article IV.
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 Purchase 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 Purchase Agreement; and
(ii) to perform the transactions contemplated hereby and
thereby.
(c) This Purchase 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 Purchase
Agreement, each Closing Document to which the Operating Partnership is a party
and each such agreement, document and instrument by the Operating Partnership.
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(i) does not and will not violate the agreement of limited
partnership of the Operating Partnership dated as of March 24, 1997,
as amended (the "OP AGREEMENT");
(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 he will not enter into, any agreement, arrangement or
understanding with any person or entity which will result in the obligation of
Seller to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
ARTICLE V
POWER OF ATTORNEY
5.1 Grant of Power of Attorney. The Seller does hereby irrevocably
appoint the Operating Partnership (or its designee) and Xxxxxxxx Xxxxxxx, Xxxxxx
Xxx and Xxxxxx Xxxxxx, and each of them individually and any successor thereof
from time to time (such Operating Partnership or designee, each such individual
or any such successor of any of them acting in his, her or its capacity as
attorney-in-fact pursuant hereto, the "ATTORNEY-IN-FACT") as the true and lawful
attorney-in-fact and agent of the Seller, to act in the name, place and stead of
the Seller to make, execute, acknowledge and deliver all such other contracts,
orders, other writings (including without limitation the execution of any
Closing Documents or other documents relating to the acquisition by the
Operating Partnership of the Interests), to provide information to the
Securities and Exchange Commission and others about the transactions
contemplated hereby and, in general, to do all things and to take all actions
which the Attorney-in-Fact in its sole discretion may consider necessary or
proper in connection with or to carry out the transactions contemplated by this
Purchase Agreement, as fully as could the Seller if personally present and
acting. Further, the Seller hereby grants to the Attorney-in-Fact a proxy (the
"PROXY") to vote the Seller's Interests on any matter related to the
Transactions contemplated hereby presented to the members of each such LLC for a
vote, including, but not limited to, the transfer of interests in each such LLC
by the other members.
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Each of the Power of Attorney and Proxy and all authority granted
hereby shall be coupled with an interest and therefore shall be irrevocable and
shall not be terminated by any act of the Seller, by operation of law or by the
occurrence of any other event or events, and if any other such act or events
shall occur before the completion of the transactions contemplated by this
Purchase Agreement, the Attorney-in-Fact shall nevertheless be authorized and
directed to complete all such transactions as if such other act or events had
not occurred and regardless of notice thereof. The Seller agrees that, at the
request of the Operating Partnership, it will promptly execute a separate power
of attorney and proxy on the same terms set forth in this ARTICLE V, such
execution to be witnessed and notarized. The Seller hereby authorizes the
reliance of third parties on each of the Power of Attorney and Proxy.
The Seller acknowledges that the Operating Partnership and each named
individual Attorney-in-Fact has, and any designee or successor thereof acting as
Attorney-in-Fact may have, an economic interest in the transactions contemplated
by this Purchase Agreement.
5.2 Limitation on Liability. It is understood that the
Attorney-in-Fact assumes no responsibility or liability to any person by virtue
of the Power of Attorney or Proxy granted by the Seller hereby. The
Attorney-in-Fact makes no representations with respect to and shall have no
responsibility for the transactions contemplated hereby or the Company's
contemplated initial public offering (the "IPO"), or the acquisition of the
Interest by the Operating Partnership and shall not be liable for any error or
judgment or for any act done or omitted or for any mistake of fact or law except
for its own gross negligence or bad faith. The Seller agrees to indemnify the
Attorney-in-Fact for and to hold the Attorney-in-Fact harmless against any loss,
claim, damage or liability incurred on its part arising out of or in connection
with it acting as the Attorney-in-Fact under the Power of Attorney or Proxy
created by the Seller hereby, as well as the cost and expense of investigating
and defending against any such loss, claim, damage or liability, except to the
extent such loss, claim, damage or liability is due to the gross negligence or
bad faith of the Attorney-in-Fact. The Seller agrees that the Attorney-in-Fact
may consult with counsel of its own choice (who may be counsel for the Operating
Partnership or its successors or affiliates), and it shall have full and
complete authorization and protection for any action taken or suffered by it
hereunder in good faith and in accordance with the opinion of such counsel. It
is understood that the Attorney-in-Fact may, without breaching any express or
implied obligation to Seller hereunder, release, amend or modify any other power
of attorney or proxy granted by any other person under any related agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Amendment. (a) This Purchase Agreement may only be amended by a
written agreement duly executed by the Seller and the Operating Partnership.
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(b) 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 Purchase
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.
6.3 Binding Effect. This Purchase Agreement may not be assigned by
the Seller. This Purchase 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, in the case of the
Operating Partnership, assigns.
6.4 Titles. The titles and captions of the Articles, Sections and
paragraphs of this Purchase Agreement are included for convenience of reference
only and shall have no effect on the construction or meaning of this Purchase
Agreement.
6.5 Third Party Beneficiary. No provision of this Purchase 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 Purchase 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 Purchase Agreement, or
the application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Purchase 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 Purchase 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 to effect
such replacement.
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6.7 Equitable Remedies. (a) The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Purchase
Agreement were not performed in accordance with their specific terms or were
otherwise breached.
(b) 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 Purchase Agreement or
otherwise at law or in equity.
6.8 Notices; Exercise of Option. Any notice or demand which must or
may be given under this Purchase Agreement 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
Seller, to the address and telecopy number set forth under the Seller's name on
the signature page hereof.
6.9 Waiver of Rights; Consents with Respect to Partnership Interests.
(a) The Seller 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 an additional interest in any LLC) may conflict
with, and may not have been contemplated by, any LLC Agreement or another
agreement among one or more holders of interests in any LLC or one or more of
the members of any such LLC.
(b) The Seller expressly gives all Consents (and any consent
necessary to authorize the proper parties in interest to give all Consents) and
Waivers necessary or desirable to facilitate any Conveyance Action relating to
the LLC (as such terms are defined below).
(c) The Seller further agrees that the Seller will take no action to
enjoin, or seek damages resulting from, any Conveyance Action by any holder of a
direct or indirect interest in any LLC.
(d) The Waivers and Consent contained in this Section 6.9 shall
terminate upon the termination of this Purchase Agreement, except as to
transactions completed hereunder prior to termination.
(e) (i) As used herein, the term "CONVEYANCE ACTION" means, with
respect to any LLC,
(ii) the conveyance or agreement to convey by a member
thereof or by any holder of an indirect interest therein (whether or
not such member or holder is a seller under an agreement containing
terms similar to this Purchase Agreement) of its direct or indirect
interest in the LLC to the Operating Partnership or the Company or to
another person in connection with the formation of the Operating
Partnership or the Company, or
(iii) the entering into by any such member or holder of any
agreement relating to
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(A) the formation of the Operating Partnership or
the Company,
(B) the direct or indirect acquisition by the
Operating Partnership or the Company of any such direct or
indirect interest, or
(C) the transactions described in or contemplated
by the prospectus relating to the IPO, or
(iv) the taking by any such member 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):
(A) any sale or distribution to any person of a
direct or indirect interest in the LLC or an undivided
tenant-in-common interest in the Property represented by
such LLC interest,
(B) 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 the LLC,
and
(C) the giving of the Consents and Waivers
contained in this Section 6.9 or consents or waivers
similar thereto in form or purpose.
(v) As used herein, the term "CONSENTS" means, with respect
to each LLC, any consent deemed by the Operating Partnership to be
necessary or desirable under the LLC Agreement 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 each LLC or to amend the Operating 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 member of each LLC upon the Operating
Partnership's or any such affiliate's acquisition of a
membership 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
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acquisition by the Operating Partnership or any such
affiliate of a membership interest in any of the LLC's,
provided, however, that such amendment will not result in
any increased liability on the part of the Seller or under
the Operating Agreement, and
(D) to continue each LLC 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).
(vi) As used herein, the term "WAIVERS" means, with respect
to each LLC, the waiving of any and all rights that the Seller 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 Seller or
other person upon the occurrence of, a Conveyance Action relating to
any of the LLC's, including, but not limited to, the following
rights:
(A) rights of notice,
(B) rights to response periods,
(C) rights to purchase the direct or indirect
interest of another member in any of the LLC's, (or the
property interests represented by such membership interest)
or to sell the Seller's or other person's direct or
indirect interest therein to another member,
(D) rights to sell the Seller'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 each such LLC
because of such Conveyance Action.
6.10 Releases and Waivers. Each of the releases and waivers
enumerated in this Section 6.10 shall become effective only upon the Closing
pursuant to ARTICLE II.
(a) As of the Closing, the Seller irrevocably waives,
releases and forever discharges the Operating Partnership and the
Operating Partnership's affiliates, partners (including Xxxxxxxx X.
Xxxxxxx), agents, attorneys, successors and assigns of and from, any
and all charges, complaints, claims, liabilities, damages, actions,
causes of action, losses and costs of any nature whatsoever
(collectively, "SELLER CLAIMS"), known or unknown, suspected or
unsuspected, arising out of or relating to the Operating Agreements,
this Purchase Agreement or any other matter which exists at the
Closing, except for Seller Claims arising from the breach of any
representation, warranty, covenant or obligation under this Purchase
Agreement.
-13-
17
(b) As of the Closing, the Operating Partnership
irrevocably waives, releases and forever discharges the Seller and
the Seller's agents, attorneys, successors and assigns of and from,
any and all charges, complaints, claims, liabilities, damages,
actions, causes of action losses and costs of any nature whatsoever
(collectively, "OPERATING PARTNERSHIP CLAIMS") known or unknown,
suspected or unsuspected, arising out of or relating to the Operating
Agreements, this Purchase Agreement or any other matter which exists
at the Closing, except for Operating Partnership Claims arising from
the breach of any representation, warranty, covenant or obligation
under this Purchase Agreement.
(c) As of the Closing, the Seller waives and relinquishes
all rights and benefits otherwise afforded to the Seller under the
Operating Agreements including, without limitation, any right to
consent to or approve of the sale or contribution by the other
members of each LLC of their membership interests to the Company or
the Operating Partnership.
6.11 Confidentiality. (a) The Seller 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 a Registration Statement
relating thereto with the Securities and Exchange Commission, and shall not
communicate at any time the terms of this Purchase Agreement to any person other
than counsel or advisors to the Seller who agree to keep such terms confidential
and any lender holding a lien on any Property Interests.
(b) The Seller 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 the same only to
counsel to the Seller who agree to keep such information confidential.
6.12 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.
6.13 Survival. It is the express intention and agreement of the
parties hereto that the representations, warranties and covenants of the
Operating Partnership and the Seller set forth in this Purchase Agreement shall
survive the consummation of the transactions contemplated hereby.
6.14 Time of the Essence. Time is of the essence with respect to all
obligations of the Seller under this Agreement.
6.15 Termination of Prior Agreement. The parties agree that the
execution and delivery of this Purchase Agreement terminates ab initio the
Purchase Agreement, dated as of July 30, 1997, by and among Xxxxxxxx X. Xxxxxxx
and Xxxxxxx XxXxxxxxxx, and none of the parties hereto or thereto shall have any
rights or obligations under such agreement.
[SIGNATURE PAGE FOLLOWS]
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18
[SIGNATURE PAGE TO PURCHASE AGREEMENT]
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Purchase Agreement to be duly executed on its behalf,
as of the date first above written.
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: Chairman, President and
Chief Executive Officer
SELLER'S ADDRESS: SELLER:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000 /s/Xxxxxxx XxXxxxxxxx
-----------------------------------
Xxxxxxx XxXxxxxxxx
19
SCHEDULE A
SCHEDULE OF INTERESTS
Percentage
Entity Nature of Interest Interest
------ ------------------ --------
Smit-Lake, L.L.C. Membership Interest 2.35%
TERCO Realty, L.L.C. Membership Interest 2.63%
Xxxx-Xxxxxx, L.L.C. Membership Interest 10.00%
TERCO Partners I, L.L.C. Membership Interest 10.00%
20
AMENDMENT NO. 1 TO XXXXXXX XXXXXXXXXX PURCHASE AGREEMENT
This Amendment No. 1 to the Purchase Agreement (this "AMENDMENT NO.
1"), dated as of the 18th day of September, 1997, is entered into by and among
TOWER REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the
"OPERATING PARTNERSHIP"), and Xxxxxxx XxXxxxxxxx (the "SELLER").
R E C I T A L S:
WHEREAS, a Purchase Agreement was entered into as of the 31st day of
July, 1997 by and among the Operating Partnership and the Seller (the "PURCHASE
AGREEMENT"); and
WHEREAS, the parties desire to amend certain provisions of the Purchase
Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. The first sentence of Section 1.2 of Article I of the Purchase
Agreement is hereby amended and restated to read in its entirety,
as follows:
"1.2 Consideration. The cash consideration (the
"CONSIDERATION") to be paid to the Seller in respect of the
Operating Partnership's purchase of the Retail Interests shall
be $100 and in respect of the Commercial Interest shall be
$385,532.50; provided, that, if there is a change in (a) the
range of prices for the sale of common stock, par value $.01
per share, of the Company in the IPO (as hereinafter defined)
or (b) the number of OP Units (as such term is defined in the
OP Agreement (as hereinafter defined)) issuable to the
management of the Company, each as set forth in the
preliminary prospectus of the Company, dated September 23,
1997, then the Consideration in respect of the Commercial
Interest shall be modified to an amount determined in good
faith by Xxxxxxxx X. Xxxxxxx, which determination shall be
binding upon the parties."
2. Except as amended hereby, the Purchase Agreement shall remain in
full force and effect.
[SIGNATURE PAGE FOLLOWS]
21
[SIGNATURE PAGE TO AMENDMENT NO. 1]
IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment No.1 to the Purchase Agreement, or caused it to be duly executed on
its behalf, as of the date first above written.
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: Chairman of the Board, Chief
Executive Officer and President
SELLER:
/s/ Xxxxxxx XxXxxxxxxx
----------------------------------------
Xxxxxxx XxXxxxxxxx
