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AGREEMENT OF SALE AND PURCHASE
between
GRAYBAR BUILDING COMPANY,
SELLER
and
XX XXXXX OPERATING PARTNERSHIP, L.P.,
PURCHASER
Date: January __, 1998
PREMISES:
000 XXXXXXXXX XXXXXX
XXX XXXXXXX XXXXXXXX
XXX XXXX, XXX XXXX
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TABLE OF CONTENTS
Page
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ARTICLE 1 INCLUSIONS IN SALE AND EXCLUSIONS . . . . . . . . . . . . . . 1
ARTICLE 2 PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Purchase Price . . . . . . . . . . . . . . . . . . . . . 3
2.2 Payment of Purchase Price . . . . . . . . . . . . . . . . 3
2.2.1 Deposit . . . . . . . . . . . . . . . . . . . . . 3
2.2.2 Payment at Closing . . . . . . . . . . . . . . . . 4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 5
3.1 Representations of Seller . . . . . . . . . . . . . . . . 5
3.1.1 Space Leases . . . . . . . . . . . . . . . . . . . 5
3.1.2 Service and Maintenance Agreements . . . . . . . . 6
3.1.3 Brokerage Agreements . . . . . . . . . . . . . . . 6
3.1.4 Employees . . . . . . . . . . . . . . . . . . . . 7
3.1.5 Underlying Documents -- Operating Sublease . . . . 7
3.1.6 No Foreign Person . . . . . . . . . . . . . . . . 9
3.1.7 Incomplete Landlord's Work and Unpaid Work
Allowances . . . . . . . . . . . . . . . . . . . . 9
3.1.8 Litigation . . . . . . . . . . . . . . . . . . . . 9
3.2 Reliance upon Document Binders . . . . . . . . . . . . . 9
3.3 Authority and Binding Effect; No Breach or Prohibition . 10
3.4 Purchaser's Knowledge; Disclosure . . . . . . . . . . . . 10
3.5 Disclaimer of Representations and Warranties . . . . . . 11
3.6 Right to Adjourn Closing . . . . . . . . . . . . . . . . 11
ARTICLE 4 STATE OF TITLE OF PROPERTY . . . . . . . . . . . . . . . . . . 11
4.1 Permitted Encumbrances . . . . . . . . . . . . . . . . . 11
ARTICLE 5 TITLE INSURANCE AND ABILITY OF SELLER TO CONVEY . . . . . . . 15
5.1 Title Insurance . . . . . . . . . . . . . . . . . . . . . 15
5.2 Title Objections . . . . . . . . . . . . . . . . . . . . 16
5.3 No Further Action . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 6 CLOSING COSTS . . . . . . . . . . . . . . . . . . . . . . . . 18
6.1. Purchaser's Obligations . . . . . . . . . . . . . . . . 18
6.2. Seller's Obligations . . . . . . . . . . . . . . . . . . 18
6.3. Other Costs . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 7 ASSIGNMENT AND ASSUMPTION OF CONTRACTS
AND SPACE LEASES . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 8 REAL ESTATE TAX PROTESTS . . . . . . . . . . . . . . . . . . . 19
ARTICLE 9 ACKNOWLEDGMENTS OF PURCHASER;
CONDITION OF PROPERTY . . . . . . . . . . . . . . . . . . . . 20
9.1 Analysis and Evaluation of the Property . . . . . . . . . 20
9.2 No Effect on Purchaser's Obligations . . . . . . . . . . 21
9.3 No Other Representations . . . . . . . . . . . . . . . . 22
9.4 Outside Representations . . . . . . . . . . . . . . . . . 22
9.5 Environmental Investigation of the Property . . . . . . . 22
9.6 Confidentiality . . . . . . . . . . . . . . . . . . . . . 23
9.7 Limited Disclosure . . . . . . . . . . . . . . . . . . . 23
9.8 Return of Information . . . . . . . . . . . . . . . . . . 24
9.9 Survival . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 10 OPERATIONS PRIOR TO CLOSING . . . . . . . . . . . . . . . . . 24
10.1 Continued Operations . . . . . . . . . . . . . . . . . 24
10.2 Access to the Property . . . . . . . . . . . . . . . . 25
10.3 Space Leases . . . . . . . . . . . . . . . . . . . . . 25
10.4 Tenant Estoppel Certificates . . . . . . . . . . . . . 27
10.5 Request for Lessor Consent and Estoppel . . . . . . . . 29
10.6 Consent under Operating Sublease and Underlying Leases. 30
ARTICLE 11 CASUALTY AND EMINENT DOMAIN . . . . . . . . . . . . . . . . . 31
11.1 Casualty and Risk of Loss. . . . . . . . . . . . . . . . 31
11.2 Eminent Domain. . . . . . . . . . . . . . . . . . . . . . 33
11.3 Survival. . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 12 ASSESSMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 13 CLOSING ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . 35
13.1 Adjustments and Prorations . . . . . . . . . . . . . . . 35
13.1.1 Fixed Rents . . . . . . . . . . . . . . . . . . . . . . . 35
13.1.2 Overage Rent . . . . . . . . . . . . . . . . . . . . . . 37
13.1.3 Taxes and Assessments . . . . . . . . . . . . . . . . . 41
13.1.4 Deposits . . . . . . . . . . . . . . . . . . . . . . . . 42
13.1.5 Water and Sewer Charges . . . . . . . . . . . . . . . . 42
13.1.6 License Fees . . . . . . . . . . . . . . . . . . . . . . 42
13.1.7 Service and Maintenance Charges . . . . . . . . . . . . 42
13.1.8 Vault Fees . . . . . . . . . . . . . . . . . . . . . . . 43
13.1.9 Utilities . . . . . . . . . . . . . . . . . . . . . . . 43
13.1.10 Inventory . . . . . . . . . . . . . . . . . . . . . . . . 43
13.1.11 Tenant Security Deposits . . . . . . . . . . .. . . . . . 43
13.1.12 Fuel . . . . . . . . . . . . . . . . . . . . . . . . . . 44
13.1.13 Employee Compensation . . . . . . . . . . . .. . . . . . 45
13.1.14 Tenant Improvement Work at Landlord's Cost . . . . . . . 45
13.1.15 Costs of Work to be Paid or Reimbursed to
Tenants . . . . . . . . . . . . . . . . . . . . . . . . . 46
13.1.16 Leasing Commissions . . . . . . . . . . . . . . . . . . . 46
13.1.17 Insurance Premiums . . . . . . . . . . . . . . . . . . . . 47
13.1.18 Operating Sublease Rent . . . . . . . . . . . . . . . . . 47
13.1.19 Other Adjustments . . . . . . . . . . . . . . . . . . . . 49
13.1.20 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 49
13.2 Determination of Closing Adjustments . . . . . . . . . . 49
13.3 Net Apportionments and Adjustments . . . . . . . . . . .. 49
13.3.1 Due Seller . . . . . . . . . . . . . . . . . . . . . . . .49
13.3.2 Due Purchaser . . . . . . . . . . . . . . . . . . . . . . 49
13.4 Other . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 14 CLOSING DOCUMENTS; OBLIGATIONS OF PURCHASERAND SELLER AT
CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
14.1 Seller's Obligations at Closing . . . . . . . . . . . . 50
14.2 Purchaser's Obligations at Closing . . . . . . . . . . 52
ARTICLE 15 VIOLATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE 16 SALES TAX . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 17 UNPAID TAXES . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 18 THE CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . 56
18.1 The Closing. . . . . . . . . . . . . . . . . . . . . . 56
18.1.1 Location and Date of Closing . . . . . . . . . 56
18.1.2 Delivery of Documents . . . . . . . . . . . . . 56
18.2 Time of Essence . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 19 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 20 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
20.1 Purchaser's Default . . . . . . . . . . . . . . . . . . 58
20.2 Seller's Default . . . . . . . . . . . . . . . . . . . 59
ARTICLE 21 CONDITIONS; SURVIVAL . . . . . . . . . . . . . . . . . . . . 59
21.1 Conditions . . . . . . . . . . . . . . . . . . . . . . 59
21.2 Survival . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 22 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . 61
22.1 Assignment . . . . . . . . . . . . . . . . . . . . . . 61
22.2 Affiliate . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE 23 BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
23.1 Purchaser's Representation . . . . . . . . . . . . . . 63
ARTICLE 24 ESCROW . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE 25 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 64
25.1 Merger . . . . . . . . . . . . . . . . . . . . . . . . 64
25.2 Headings . . . . . . . . . . . . . . . . . . . . . . . 65
25.3 Governing Law . . . . . . . . . . . . . . . . . . . . . 65
25.4 Jurisdiction . . . . . . . . . . . . . . . . . . . . . 65
25.5 Waiver of Venue and Inconvenient Forum Claims . . . . . 66
25.6 Waiver of Jury Trial . . . . . . . . . . . . . . . . . 66
25.7 Successors and Assigns . . . . . . . . . . . . . . . . 66
25.8 Invalid Provisions . . . . . . . . . . . . . . . . . . 66
25.9 Schedules and Exhibits . . . . . . . . . . . . . . . . 66
25.10 No Other Parties . . . . . . . . . . . . . . . . . . . 67
25.11 Interpretation . . . . . . . . . . . . . . . . . . . . 67
25.12 Counterparts; Faxed Signatures . . . . . . . . . . . . 67
25.13 Binding Effect . . . . . . . . . . . . . . . . . . . . 67
25.14 Recordation . . . . . . . . . . . . . . . . . . . . . 67
25.15 Litigation Fees . . . . . . . . . . . . . . . . . . . 68
25.16 Title Omissions . . . . . . . . . . . . . . . . . . . 68
25.17 Defined Terms . . . . . . . . . . . . . . . . . . . . 68
25.18 Singular/Plural . . . . . . . . . . . . . . . . . . . 68
ARTICLE 26 AFFILIATED PURCHASE AGREEMENT . . . . . . . . . . . . . . . . 68
26.1 Affiliate Purchaser . . . . . . . . . . . . . . . . . . 68
26.2 Affiliate Properties . . . . . . . . . . . . . . . . . 69
26.3 Rights on Purchaser Default . . . . . . . . . . . . . . 69
SCHEDULES
A Description of Land
B Schedule of Space Leases
C Underlying Lease Documents
D Rent Roll
E Schedule of Service and Maintenance Agreements
F-1 Brokerage Agreements
F-2 Unpaid Earned Commissions under the Brokerage Agreements
G-1 Employees of Seller or Seller's Managing Agent at the Property
G-2 Written Agreements Relating to Building Employees
H Description of Contract Survey/Survey Exceptions
I Easements, Covenants and Agreements of Record
J Title Commitment Description (Contract Title Report)
K Title Exceptions in Contract Title Report to be Omitted by Seller
L-1 Form of Tenant Estoppel Statement
L-2 Form of Seller's Estoppel Statement
L-3 Form of Lessor's Estoppel Statement
L-4 Form of Seller's Operating Sublease Estoppel Statement
M-1 Incomplete Landlord's Work
M-2 Unpaid Work Allowances
N Pending Litigation Not Covered by Insurance
EXHIBITS
1 Assignment of the Operating Sublease
2 Xxxx of Sale
3 Assignment and Assumption of Service,
Maintenance and Concessionaire
Agreements
4 Assignment and Assumption of Landlord's Interest in Space Leases
5 Assignment of Licenses and/or Permits
6 Assignment of Warranties and Guarantees
7 Post-Closing Adjustment Letter
8 FIRPTA Certificate
9 Tenant Notice Letter
10 Assignment and Assumption of Brokerage Agreements
11 Assumption of Ground Lease
12 Escrow Letter
INITIALLED BINDERS
(a) Space Lease Binders
(b) Service and Maintenance Agreement Binders
(c) Brokerage Agreement Binders
(d) Operating Sublease Binder
(e) Underlying Leases Binder
LIST OF DEFINED TERMS
DEFINED TERM PAGE
Acceptable Form . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 31
Adjustment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 35
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Associates Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Brokerage Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
CAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Cash Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 35
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Contract Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Contract Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Document Binders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
escalation rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Escrow Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Escrow Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Federal Reserve Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Fixed Rents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Form TP-584 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Governmental Authority . . . . . . . . . . . . . . . . . . . . . . . . . 12
Grant of Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Landgray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Lessor's Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Lessor's Estoppel Statement . . . . . . . . . . . . . . . . . . . . . . . 30
material part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Maximum Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Mesne Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Metlife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Metlife Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Metro-North . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
NY Graybar L.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
NY Graybar L.P. Consent . . . . . . . . . . . . . . . . . . . . . . . . . 29
Operating Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Operating Sublease . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Operating Sublease Binder . . . . . . . . . . . . . . . . . . . . . . . . . 7
Optional Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Overage Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
percentage rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Permitted Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . 11
Post-Closing Adjustment Letter . . . . . . . . . . . . . . . . . . . . . 51
Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Reletting Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Rent Roll . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Required Tenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
RPT Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Schedule of Space Leases . . . . . . . . . . . . . . . . . . . . . . . . . 5
Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Seller's Article 10 Amount . . . . . . . . . . . . . . . . . . . . . . . 24
Seller's Estoppel Statement . . . . . . . . . . . . . . . . . . . . . 28, 30
Service and Maintenance Agreement Binders . . . . . . . . . . . . . . . . . 6
Service and Maintenance Agreements . . . . . . . . . . . . . . . . . . . . 6
Space Lease Binders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Space Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Space Leasing Cutoff Date . . . . . . . . . . . . . . . . . . . . . . . . 45
Subsequent Title Objection . . . . . . . . . . . . . . . . . . . . . . . 16
Tax Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Tenant Estoppel Statement . . . . . . . . . . . . . . . . . . . . . . . . 27
Tenant Notice Letters . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Tenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Title Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Title Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Underlying Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Underlying Leases Binder . . . . . . . . . . . . . . . . . . . . . . . . 15
Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
AGREEMENT OF SALE AND PURCHASE (this "Agreement") is made and entered
into as of the _______ day of __________, 1998, by and between GRAYBAR
BUILDING COMPANY, a New York general partnership, having an office c/o
Helmsley Enterprises, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Seller"), and XX XXXXX OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership, having an office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, upon the terms and conditions
hereinafter set forth, tenant's interest in a leasehold estate in the office
building known as the Graybar Building and located at 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx (the "Property," as such term is defined in Article 1
hereof).
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, and subject to the terms and
conditions hereof, Seller and Purchaser hereby covenant and agree as follows:
ARTICLE 1
INCLUSIONS IN SALE AND EXCLUSIONS
---------------------------------
1.1 The term "Property" shall mean the following:
1.1.1 All of Seller's right, title and interest as tenant in
and to that certain Lease made by and between Precision Dynamics Corporation,
as Landlord, and Graybar Building Company as Tenant, dated as of June 1,
1964, and recorded in the Office of the Register of the City of New York, New
York County in Liber 5293 Cp. 35 (the "Operating Sublease"), which affects
the land described on Schedule "A" annexed hereto (the "Land").
1.1.2 All of Seller's right, title and interest under the
Operating Sublease, if any, in and to the buildings, structures and
improvements, together with the tenements, hereditaments and appurtenances
thereto belonging or in any way appertaining, now erected or situate on the
Land (collectively, the "Building").
1.1.3 All of Seller's right, title and interest in and to the
fixtures, equipment, machinery and personal property used in connection with
the operation of the Property and owned by Seller, and not being the property
of any space tenant, occupant at the Property, manager or leasing agent, or
any other party.
1.1.4 All right, title and interest of Seller under the
Operating Sublease, if any, in and to any land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the
Land, to the center line thereof, and any strips and gores adjacent to the
Land, and all right, title and interest of Seller, if any under the Operating
Sublease, in and to any award made or to be made in lieu thereof and in and
to any unpaid award for damage to the Land and Building by reason of change
of grade of any street.
1.1.5 All of lessor's interest in space leases now or hereafter
covering offices, stores and other spaces situate at or within the Building
(the "Space Leases") and all of the right, title and interest of the Seller
under the Space Leases (from and after the "Closing," as such term is defined
in Section 13.1 hereof), and, subject to the provisions of Section 13.1.11
hereof, all security deposits paid or deposited by space tenants or occupants
in respect of Space Leases (individually, a "Tenant" and collectively, the
"Tenants"), applicable to Tenants in possession under the Space Leases at
Closing, which shall not have been applied in accordance with the provisions
of such Space Leases.
1.1.6 All right, title and interest of Seller, if any, under
the Operating Sublease, in and to any easements, rights-of-way, interests,
appurtances and other rights of any kind relating to or pertaining to the
Land.
1.2 The term "Property" shall exclude the following:
1.2.1 Any existing cause of action, or damage claim, of Seller.
1.2.2 All rights and interests of Seller as tenant under the
Operating Sublease or as Landlord under a Space Lease arising prior to the
Closing (including but not limited to, tax refunds, casualty or condemnation
proceeds, applied tenant deposits, utility deposits, rent in arrears and rent
escalations) attributable to periods prior to Closing.
ARTICLE 2
PURCHASE PRICE
--------------
2.1 Purchase Price. The purchase price for the Property to be paid by
--------------
Purchaser to Seller shall be the amount of Seventy-Eight Million Dollars
($78,000,000.00) (the "Purchase Price").
2.2 Payment of Purchase Price. Purchaser agrees to pay the Purchase
-------------------------
Price to Seller as follows:
2.2.1 Deposit. Seven Million Eight Hundred Thousand Dollars
-------
($7,800,000.00) (the "Deposit") paid simultaneously herewith by Purchaser's
certified check or cashier's check, subject to collection, in the amount of
such sum payable to the direct order of "Bachner, Tally, Xxxxxxx & Xxxxxx
LLP, as escrow agent," drawn on a bank which is a member of The New York
Clearing House Association. In the event such check fails to be paid by the
bank upon which it is drawn on first presentment, other than as a result of
an error of the drawee bank, then any rights of Purchaser hereunder may be
terminated by notice given by Seller to Purchaser. The proceeds of such
Deposit and all interest accrued thereon shall be held in escrow and shall be
payable in accordance with Article 24 hereof.
2.2.2 Payment at Closing. Seventy Million Two Hundred Thousand
------------------
Dollars ($70,200,00.00) (the "Cash Balance") shall be paid by Purchaser to
Seller at the Closing. The Cash Balance shall be paid by wire transfer of
immediate clearance "Federal Reserve Funds" (as such term is hereinafter
defined) to such account and bank as Seller may, in writing, designate,
provided that Seller may designate on one (1) business days notice that the
Cash Balance be wire transferred to not more than three (3) designated
recipients. As used herein, the term "Federal Reserve Funds" shall be deemed
to mean the receipt by a bank or banks in the continental United States
designated by Seller of U.S. dollars in form that does not require further
clearance, and may be applied at the direction of Seller by such recipient
bank or banks on the day of receipt of advice that such funds have been wire
transferred. The description of the manner in which such funds are to be
transmitted and the number of designated recipients thereof shall apply with
respect to the Cash Balance as well as to any other funds to be paid to
Seller hereunder, including but not limited to any funds to be paid to Seller
as a result of the adjustments to be made pursuant to Article 13 hereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
------------------------------
3.1 Representations of Seller. Seller hereby represents and warrants
-------------------------
to Purchaser that the following facts and conditions exist on the date
hereof, to the best of Seller's knowledge:
3.1.1 Space Leases. (a) The only Space Leases as of the date
------------
hereof are those listed on Schedule "B" annexed hereto (the "Schedule of
Space Leases"). A copy of each of the Space Leases set forth on Schedule "B"
has been reviewed by Purchaser and/or its counsel and delivered by Seller to
Purchaser simultaneously herewith in velobound binders (the "Space Lease
Binders") and initialed by Seller and Purchaser and/or their respective
counsel. No representation is made as to (i) possible assignments of any
Space Leases not consented to by Seller, or (ii) any subleases or
underleases.
(b) Seller does not warrant that any particular Space Lease will
be in force or effect at the Closing or that the Tenants will have performed
their obligations thereunder. The termination of any Space Lease prior to
the Closing shall not affect the obligations of Purchaser under this
Agreement, or entitle Purchaser to an abatement of or credit against the Cash
Balance, or give rise to any other claim on the part of Purchaser.
(c) If any space in the Building is vacant on the Closing Date,
Purchaser shall accept the Property subject to such vacancy, provided that
the vacancy was not permitted or created by Seller in violation of any
restrictions contained in this Agreement.
(d) The rent roll attached hereto as Schedule "D" (the "Rent
Roll") contains a list of:
(i) all Tenants of the Property as of the date hereof;
(ii) the premises in the Building leased to each Tenant;
(iii) the base rent billed to Tenants during the month of
December, 1997 and additional rent (exclusive of
real estate tax escalation amounts) billed to
Tenants during the month of December, 1997; and
(iv) the security deposit, if any, held by Seller with
respect to each Tenant as of October 31, 1997.
To the best of Seller's knowledge, the information contained on the Rent Roll
is true and correct in all material respects. With respect to any monetary
amounts described on the Rent Roll, the term "true and correct in all
material respects" shall be construed to mean that, to the extent the Rent
Roll overstates or understates the actual amounts of such items, the net
adverse economic effect on Purchaser of such understatements or
overstatements in the aggregate does not exceed an amount equal to four (4%)
percent of the Purchase Price.
3.1.2 Service and Maintenance Agreements. The only service and
----------------------------------
maintenance agreements affecting the Land or Building as of the date hereof
are those listed on Schedule "E" annexed hereto (the "Service and Maintenance
Agreements"). A copy of each the Service and Maintenance Agreements set
forth on Schedule "E" has been reviewed by Purchaser and/or its counsel and
delivered by Seller to Purchaser simultaneously herewith in velobound binders
(the "Service and Maintenance Agreement Binders") and initialed by Seller
and Purchaser and/or their respective counsel.
3.1.3 Brokerage Agreements. The only written agreements for
--------------------
the payment of leasing commissions in connection with the Space Leases as of
the date hereof are those listed on Schedule "F-1" annexed hereto (such
agreements, together with any additional such agreements made in accordance
with the provisions of this Agreement, collectively, the "Brokerage
Agreements"). A copy of each existing Brokerage Agreement has been delivered
by Seller to Purchaser simultaneously herewith in velobound binders (the
"Brokerage Agreement Binders") and initialed by Seller and Purchaser and/or
their respective counsel. Schedule "F-2" annexed hereto sets forth a list of
all (i) commissions which have been earned and are payable under the
Brokerage Agreements prior to the date of this Agreement which have not been
paid, and (ii) any commissions already earned under the Brokerage Agreements
and which are payable in one or more installments after the date of this
Agreement. Brokerage commissions payable under the Brokerage Agreements
shall be adjusted and prorated between Seller and Purchaser as provided in
Article 13 hereof.
3.1.4 Employees. The only employees of Seller or Seller's
---------
managing agent engaged in the operation or maintenance of the Property are
listed on Schedule "G-1" annexed hereto. Schedule "G-1" also sets forth the
position and current salary or wage rate of each such employee as of the date
of this Agreement. Except as set forth on Schedule "G-2" annexed hereto,
Seller has no written agreements relating to Building employees, including,
without limitation, union agreements, collective bargaining agreements,
employee benefit plans, and/or employment agreements covering Building
employees.
3.1.5 Underlying Documents -- Operating Sublease. (a) The
------------------------------------------
Operating Sublease is described in Schedule "C" annexed hereto. A velobound
copy of the Operating Sublease has been delivered by Seller to Purchaser
simultaneously herewith (the "Operating Sublease Binder").
(b) All basic rent payable under the Operating Sublease has
been paid through the current calendar month, and as of the Closing Date all
basic or fixed rent payable under the Operating Sublease shall have been paid
through the last day of the calendar month in which the Closing Date occurs.
"Overage Rent", as such term is used in the Operating Sublease, shall be
adjusted as provided in Article 13 herein.
(c) The Operating Sublease shall be in full force and effect
on the Closing Date.
(d) The consummation of the transactions contemplated in this
Agreement including the grant of consents herein required and the performance
of requirements for assignment set forth in the Operating Sublease, including
the execution and delivery of an assignment and assumption agreement, will
not result in a default under the Operating Sublease, nor give the lessor
thereunder a right to terminate the Operating Sublease.
(e) To the best of Seller's knowledge with respect to the
"Underlying Leases" (as such term is hereinafter defined):
(i) Each is in full force and effect and will be on the
Closing Date; and
(ii) The consummation of the transaction contemplated in
this Agreement including the grant of consents herein required and the
performance of requirements for assignment set forth in the Underlying Leases
and the Operating Sublease including the execution and delivery of an
assignment and assumption will not result in a default under the Operating
Sublease.
3.1.6 No Foreign Person. Seller is not a "foreign person" as
-----------------
such term is defined in Section 1445 of the Internal Revenue Code of 1954, as
amended (the "Code"), nor will the sale transaction herein contemplated be
subject to Section 897 of the Code or to the withholding requirements of
Section 1445 of the Code.
3.1.7 Incomplete Landlord's Work and Unpaid Work Allowances.
-----------------------------------------------------
Schedule "M-1" annexed hereto sets forth a list of items of construction or
leasehold improvement work remaining to be performed by Seller with respect
to the occupancy of any Tenant pursuant to the provisions of such Tenant's
Space Lease. Schedule "M-2" annexed hereto sets forth a list of remaining
contributions to be made by Seller with respect to construction or leasehold
improvement work being performed or which had been performed or remains to be
performed by Tenant for its occupancy pursuant to the provisions of such
Tenant's Space Lease.
3.1.8 Litigation. Seller has received no written notice of
-----------
any (i) pending condemnation or similar proceeding affecting the Property or
any portion thereof, or (ii) pending legal action, suit, arbitration, order
or judgment, government investigation or proceeding, in any case affecting
the Property or Seller (but not the partners, members or principals of
Seller, as the case may be) except for (x) claims and actions which are
covered by insurance and (y) those actions described on Schedule "N" annexed
hereto.
3.2 Reliance upon Document Binders. The Space Lease Binders, Brokerage
-------------------------------
Agreement Binders, Service and Maintenance Agreement Binders, Operating
Sublease Binder and Underlying Leases Binder are hereinafter collectively
called the "Document Binders." The instruments set forth in the Document
Binders constitute the sole reliance by Purchaser with respect to the matters
therein set forth and not the Schedules and Exhibits annexed hereto,
Purchaser acknowledging that, in the event of any conflict between the
matters set forth in any instrument in a Document Binder and any
representation contained in this Agreement or Schedules and Exhibits annexed
hereto, Purchaser has relied solely upon the instrument as set forth in the
Document Binders in entering into this Agreement.
3.3 Authority and Binding Effect; No Breach or Prohibition. Each party
------------------------------------------------------
hereto represents to the other that each person or entity executing this
Agreement by or on behalf of the representing party has the authority to act
on its behalf and to bind it, and that each person or entity executing any
closing documents by or on its behalf, has been or will be duly authorized to
act on its behalf, and that the performance of this Agreement will not be in
violation of its by-laws, charter, operating or partnership agreement, or any
law, ordinance, rule, regulation or order of any governmental body having
jurisdiction, or the provisions of any agreements to which it is a party or
by the terms of which it is bound, and, at the Closing, each party shall
furnish to the other party and to the "Title Company" (as such term is
defined in Section 5.1 hereof), reasonably satisfactory evidence of such
authority and approval. This Section shall survive the Closing.
3.4 Purchaser's Knowledge; Disclosure. To the extent that Purchaser
---------------------------------
has, subsequent to the date hereof, actual knowledge of any default or any
misrepresentation or incorrect warranty of Seller made in this Agreement or
in the Document Binders, Purchaser shall promptly notify Seller of same.
Reference is made to Section 21.1 hereof with respect to the effect of
Purchaser's knowledge of any misrepresentation or incorrect warranty at or
before the Closing Date.
3.5 Disclaimer of Representations and Warranties. Purchaser
--------------------------------------------
acknowledges that except as expressly provided herein, neither Seller nor
anyone acting for or on behalf of Seller has made any representation,
warranty, or promise to Purchaser concerning: (a) the physical aspect and
condition of any portion of the Property; (b) the feasibility or desirability
of the purchase of the Property; (c) the market status, projected income from
or development expenses of the Property; (d) the Property's compliance or
non-compliance with any requirements of laws; or (e) any other matter
whatsoever with respect to the Property (except as contained herein), express
or implied, including, by way of description but not limitation, those of
fitness for a particular purpose, tenantability, habitability and use; and
that all matters concerning the Property are to be independently verified by
Purchaser. Purchaser acknowledges that except as otherwise expressly
provided in this Agreement, it is purchasing the Property in its currently
existing physical condition and in its currently existing state of repair.
3.6 Right to Adjourn Closing. Seller shall have the right to adjourn
------------------------
the Closing for up to ninety (90) days for the purpose of curing any default,
misrepresentation or incorrect warranty.
ARTICLE 4
STATE OF TITLE OF PROPERTY
--------------------------
4.1 Permitted Encumbrances. Purchaser shall accept title to the
----------------------
Property subject to the following (the "Permitted Encumbrances"):
4.1.1 Any and all present and future zoning restrictions,
regulations, requirements, laws, ordinances, resolutions and orders of any
city, town or village in which the Property lies, and of all boards, bureaus,
commissions, departments and bodies of any municipal, county, state or
federal sovereign or other governmental authority now or hereafter having or
acquiring jurisdiction of the Property or the use and improvement thereof
(such authority is herein called a "Governmental Authority").
4.1.2 The state of facts shown on the survey described on
Schedule "H" annexed hereto (the "Contract Survey") and any other state of
facts shown on an accurate survey of the Property, or any part thereof,
provided such other state of facts does not materially adversely affect
Purchaser's ability to use the Building for its present uses.
4.1.3 The Space Leases listed on Schedule "B" annexed hereto,
and any extensions, renewals or modifications thereof, or new Space Leases
entered into in accordance with this Agreement. Nothing contained in this
Agreement shall be deemed to prohibit Seller from terminating any tenancy by
reason of default of a Tenant under its Space Lease, from bringing
proceedings to dispossess any Tenant, or applying a Tenant's security deposit
as allowed under its Space Lease.
4.1.4 The covenants, restrictions, easements, and agreements of
record listed on Schedule "I" annexed hereto, and such other covenants,
restrictions, easements and agreements of record, if any, affecting the
Property, or any part thereof, provided such other covenants, restrictions,
easements and agreements of record are not violated by existing structures,
and do not materially adversely affect the present use of the Building.
4.1.5 Any state of facts a physical inspection of the Property
would show.
4.1.6 The Service and Maintenance Agreements set forth on
Schedule "E" annexed hereto, and any renewals thereof, or substitutions
therefor, or additions thereto, provided such renewals, substitutions and
additions are made in the ordinary course of Seller's business.
4.1.7 All violations and/or notes or notices of violations of
law or municipal ordinances, orders, or requirements noted in or issued by
any Governmental Authority having jurisdiction against or affecting the
Property.
4.1.8 Any mechanic's lien or other lien which is the obligation
of a Tenant under any Space Lease to bond or remove of record.
4.1.9 Real estate taxes, assessments, Business Improvement
District charges and like charges for the fiscal year in which the Closing
occurs and all fiscal years thereafter.
4.1.10 Any exception to coverage by the Title Company, provided
that the Title Company insures same against collection out of or enforcement
against the Property.
4.1.11 Any easement or right of use created in favor of any
public utility company for electricity, steam, gas, telephone, water or other
service, and the right to install, use, maintain, repair and replace wires,
cables, terminal boxes, lines, service connections, poles, mains, facilities
and the like, upon, under and across the Property.
4.1.12 The printed exceptions contained in the form of title
insurance policy then issued by the Title Company which shall insure
Purchaser's title.
4.1.13 Possible lack of right to maintain vaults, fences
retaining walls, chutes, cornices and other installations encroaching beyond
the property line and possible variance between the record description and
the tax map.
4.1.14 The terms, covenants and conditions of the Operating
Sublease and the Underlying Leases.
4.1.15 The Seller's interest to be transferred hereunder, i.e.,
the tenant's interest in the Operating Sublease derives from the fee interest
in the Land by grant of term and leases from the following entities or their
predecessor-in-interest:
Metro-North Commuter Railroad Company ("Metro-North")
to
Landgray Associates ("Landgray")
to
Metropolitan Life Insurance Company ("Metlife")
to
Graybar Building Associates ("Associates")
to
New York Graybar Lease, L.P. ("NY Graybar L.P.")
to
Graybar Building Company ("Seller")
and accordingly the Operating Sublease dated as of June 1, 1964 between
Precision Dynamics Corporation, predecessor-in-interest to NY Graybar L.P.,
and Seller (the "Operating Sublease") is subject and subordinate to the
following (collectively "Underlying Leases"):
Operating Lease dated December 30, 1957 between Xxxx X. Xxxxxxxx,
predecessor-in-interest to Associates, and Xxxx Xxxxxxxx, predecessor-
in-interest to NY Graybar L.P., as amended by Agreement dated as of June
1, 1964 among Metlife, Associates and Precision Dynamics Corporation
(the "Operating Lease").
Sublease dated December 30, 1957 between Xxxx & Xxxxx, Inc. and Graysler
Corporation, predecessor-in-interest to Metlife, and Xxxx X. Xxxxxxxx,
predecessor-in-interest to Associates, as amended by Agreement dated as
of June 1, 1964 among Metlife, Associates and Precision Dynamics
Corporation (the "Mesne Lease").
Ground Lease dated December 30, 1957 between New York State Realty and
Terminal Company, predecessor-in-interest to Landgray, and Xxxx & Xxxxx,
Inc. and Graysler Corporation, predecessor-in-interest to Metlife, as
amended by Lease Renewal Agreement made as of December 31, 1987 between
Landgray and Metlife (the "Ground Lease").
Grant of Term made December 30, 1957 between The New York Central
Railroad Company, predecessor-in-interest to Metro-North, and New York
State Realty and Terminal Company, predecessor-in-interest to Landgray
(the "Grant of Term").
A velobound copy of each of the Underlying Leases has been delivered by
Seller to Purchaser simultaneously herewith (the "Underlying Leases
Binder").
ARTICLE 5
TITLE INSURANCE AND ABILITY OF SELLER TO CONVEY
-----------------------------------------------
5.1 Title Insurance. Purchaser agrees to make, promptly after the
---------------
signing hereof, application for a title insurance policy directly from
Chicago Title Insurance Company or Ticor Title Guarantee Company or Ticor
Title Insurance Company (the "Title Company"), and to purchase any fee title
insurance policy obtained by Purchaser in connection with the acquisition of
the Property directly from the Title Company, provided however, Purchaser may
obtain a fee title policy conditioned upon coinsurance of one-third of the
insured amount with Chicago Title Insurance Company, one-third with Ticor
Title Insurance Company, and one-third with First American Title Insurance
Company. Purchaser acknowledges receipt of a copy of the title report
described in Schedule "J" annexed hereto (the "Contract Title Report").
Purchaser further acknowledges and agrees that Purchaser has no objection to
the state of title set forth in the Contract Title Report except that, at or
before the Closing, Seller shall cause the title exceptions listed on
Schedule "K" annexed hereto to be omitted as exceptions to title by bonding,
satisfaction, affirmative insurance against collection, or otherwise. The
Permitted Encumbrances shall remain and Purchaser shall be obligated to
accept title subject to same. With respect to any continuation of the
Contract Title Report or an update to the Contract Survey, Purchaser shall
deliver to Seller's attorneys, Bachner, Tally, Xxxxxxx & Xxxxxx LLP,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx,
Esq., a copy of such continuation or updated survey together with a written
statement by Purchaser of any objections to title which have appeared for the
first time in such continuation or on a survey obtained by Purchaser (a
"Subsequent Title Objection"), within ten (10) days of receipt of such
continuation or updated survey, but in no event later than fifteen (15) days
prior to the Closing Date, unless such change of circumstances occurred
within such fifteen (15) day period. The failure by Purchaser to deliver any
of the aforementioned documents to Seller's counsel within the time period
specified in this Section 5.1 shall constitute a waiver by Purchaser of any
and all objections that may arise with respect to matters contained in such
documents. In the event Purchaser sends a written statement to Seller
setting forth one or more Subsequent Title Objections which Seller is unable
to remedy prior to the Closing Date, Purchaser hereby grants to Seller a
reasonable adjournment of the Closing Date during which xxxx Xxxxxx may
attempt to remedy same for a period not to exceed ninety (90) days.
5.2 Title Objections. If there are any liens, charges, easements,
----------------
agreements of record, encumbrances or other objections to title, other than
the Permitted Encumbrances and Subsequent Title Objections (which Purchaser
agrees to take title subject to) which are not waived in accordance with the
provisions of Section 5.1 (collectively, "Title Objections"), which (i) were
caused by, resulted from or arose out of a grant by Seller to any person or
entity of a mortgage or other security interest affecting the Property, or
the performance of work on behalf of Seller upon all or any portion of the
Property, then Seller shall remove such Title Objections; or (ii) are not of
the type described in clause (i) of this sentence, but are removable by the
payment of an ascertainable sum not to exceed in the aggregate $250,000.00
(the "Maximum Amount"), then Seller shall cause such Title Objections to be
removed. If Seller fails to remove any Title Objection(s) in accordance with
the provisions of the immediately preceding sentence, or if there exist any
Title Objection(s) which Seller is not obligated to remove pursuant to clause
(ii) of the immediately preceding sentence because the payment of funds in
excess of the Maximum Amount would be required to cure the same, Purchaser,
nevertheless, may elect (at or prior to Closing) to consummate the
transaction provided for herein subject to any such Title Objection(s) as may
exist as of the Closing Date, with a credit allocated against the Cash
Balance payable at the Closing equal to the sum necessary to remove such
Title Objection(s), not to exceed the Maximum Amount (in the event of a Title
Objection of the type described in clause (ii) of the immediately preceding
sentence); provided, however, if Purchaser makes such election, Purchaser
shall not be entitled to any other credit, nor shall Seller bear any further
liability, with respect to any Title Objection(s) of the type described in
clause (ii) of the immediately preceding sentence, but Seller shall remain
fully liable for the cost of removing any Title Objection(s) of the type
described in clause (i) of the immediately preceding sentence. If Purchaser
shall not so elect, Purchaser may terminate this Agreement and Seller's sole
liability thereafter shall be to cause the Deposit, together with any
interest earned thereon while in escrow, to be refunded to Purchaser, and,
upon the return of the Deposit and any such interest, this Agreement shall be
terminated, and the parties hereto shall be relieved of all further
obligations and liability under this Agreement, other than with respect to
the provisions of this Agreement which expressly survive a termination of
this Agreement.
5.3 No Further Action. Except as expressly set forth in Sections 5.1
-----------------
and 5.2 hereof, nothing contained in this Agreement shall be deemed to
require Seller to take or bring any action or proceeding or any other steps
to remove any Title Objections, or to expend any moneys therefor, nor shall
Purchaser have any right of action against Seller, at law or in equity, for
Seller's inability to convey title in accordance with the terms of this
Agreement.
ARTICLE 6
CLOSING COSTS
-------------
6.1. Purchaser's Obligations. Purchaser shall pay the costs of
-----------------------
examination of title and any owner's policy of title insurance to be issued
insuring Purchaser's title to the Property, as well as all other title
charges, survey fees, and any and all other costs or expenses incident to the
recordation of the Assignment of the Operating Sublease.
6.2. Seller's Obligations. Seller shall pay the following amounts
--------------------
payable in connection with the Assignment of the Operating Sublease:
(i) the amount imposed pursuant to Article 31 of the New York
State Tax Law (the "Tax Law"); and
(ii) the amount due in connection with the Real Property
Transfer Tax imposed by Title 11 of Chapter 21 of the
Administrative Code of the City of New York.
6.3. Other Costs. All other closing costs shall be allocated to and
-----------
paid by Seller and Purchaser in accordance with the manner in which such
costs are customarily borne by such parties in sales of similar property in
New York County, State of New York; provided, however, that each party shall
bear its own attorneys' fees. Any dispute between Seller and Purchaser as to
which party customarily bears any such closing cost (other than either
party's own attorney's fees) may be submitted by either party for resolution
to the president of the Real Estate Board of New York, Inc., whose
determination shall be binding upon the parties, provided, however, that in
no event shall the Closing Date be adjourned by reason of the submission of
any such dispute to the Real Estate Board of New York, Inc.
ARTICLE 7
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND SPACE LEASES
--------------------------------------------------------
At the Closing, Seller shall assign to Purchaser and Purchaser hereby
agrees to assume as of the Closing, all of the Space Leases, Brokerage
Agreements, and Service and Maintenance Agreements, by execution of the
respective assignments of the same as provided for in Article 14 hereof.
This Article shall survive the Closing.
ARTICLE 8
REAL ESTATE TAX PROTESTS
------------------------
All real estate assessment protests and proceedings affecting the
Property for the tax year in which title closes and prior years, if any, will
be prosecuted under Seller's direction and control. In the event of any
reduction in the assessed valuation of the Property for any such fiscal year,
the net amount of any tax savings, shall (a) with respect to fiscal years
ending prior to the Closing, be payable to Seller; and (b) with respect to
the fiscal year in which the Closing shall occur, after deduction of expenses
and attorneys' fees, be adjusted between Seller and Purchaser as of the
"Adjustment Date" (as defined in Section 13.1), in each instance net of sums
due to Tenants, which sums shall be paid to each Tenant entitled to same. If
a reduction in the assessed value of the Property is granted for a fiscal
year in or prior to the year in which title closes, and such reduction is in
the form of a credit for taxes payable at or after Closing, Seller shall be
entitled to receive a sum equal to such credit when granted. Purchaser shall
notify Seller of the fact that Purchaser has been granted a reduction in the
real estate assessment for the Property with respect to the fiscal year in
which the Closing occurs within ten (10) days after the occurrence of such
event. This Section shall survive the Closing.
ARTICLE 9
ACKNOWLEDGMENTS OF PURCHASER; CONDITION OF PROPERTY
---------------------------------------------------
9.1 Analysis and Evaluation of the Property. Before entering into this
---------------------------------------
Agreement, Purchaser acknowledges that it has made its own analysis and
evaluation of the Property, the operation, the income potential, profits and
expenses thereof, its condition and all other matters affecting or relating
to the transaction underlying this Agreement as Purchaser deemed necessary,
including, without limitation, the layout, Space Leases, square footage,
rents, income, expenses and operation of the Property. Purchaser has made
its own analysis and evaluation of the property bounds including the three
dimensional grants and reservations as described in Schedule "A" annexed
hereto. In entering into this Agreement, Purchaser has not been induced by
and has not relied upon any representations, warranties, statements or
covenants, express or implied, made by Seller or any agent, employee or other
representative of Seller, which are not expressly set forth in this
Agreement.
9.2 No Effect on Purchaser's Obligations. Purchaser further
------------------------------------
acknowledges that its covenants, agreements, and obligations under this
Agreement shall not be excused or modified by: (i) the business or financial
condition, or any bankruptcy or insolvency of any Tenant of the Property,
(ii) the physical condition of the Building or personal property, or its
fitness, merchantability or suitability for any use or purpose, (iii) the
Space Leases, rents, income or expenses of the Property, (iv) the compliance
or non-compliance with any laws, codes, ordinances, rules or regulations of
any Governmental Authority and any violations thereof existing or
subsequently imposed, (v) the environmental condition of the Property or the
Property's compliance or non-compliance with any laws, codes, ordinances,
rules or regulations of any Governmental Authority relating to the presence,
use, storage, handling or removal of any hazardous substances, (vi) the
current or future use of the Property, including, but not limited to, the
Property's use for commercial, retail, industrial or other purposes, (vii)
the current or future real estate tax liability, assessment or valuation of
the Property, (viii) the availability or non-availability of any benefits
conferred by Federal, state or municipal laws, whether for subsidiaries,
special real estate tax treatment or other benefits of any kind, (ix) the
availability or unavailability of any licenses, permits, approvals or
certificates which may be required in connection with the operation of the
Property, (x) the compliance or non-compliance of the Property, in its
current zoning or a variance with respect to the Property's non-compliance,
if any, with any zoning ordinances, except as herein specifically set forth,
or (xi) the conformity of the use of the Property with any certificate of
occupancy.
9.3 No Other Representations. Purchaser hereby expressly acknowledges
------------------------
that except as expressly provided herein, neither Seller nor anyone acting
for or on behalf of Seller has made any representation, warranty, or promise
to Purchaser concerning any of the foregoing, nor: (a) the physical aspect
and condition of any portion of the Property; (b) the feasibility or
desirability of the purchase of the Property; (c) the market status,
projected income from or development expenses for the Property; or (d) any
other matter whatsoever with respect to the Property (except as contained
herein), express or implied, including, by way of description, but not
limitation, those of fitness for a particular purpose, tenantability,
habitability and use; and that all matters concerning the Property have been
independently verified by Purchaser. Purchaser acknowledges and agrees to
take the Property "as is," in its currently existing physical condition and
state of repair, subject to ordinary use, wear, tear and natural
deterioration, and subject to casualty and condemnation as more particularly
set forth in Article 11 hereof.
9.4 Outside Representations. Seller is not liable or bound in any
-----------------------
manner by any verbal or written statements, representations, real estate
"set-ups," offering memorandum or information pertaining to the Property or
its physical condition, layout, Space Leases, footage, rents, income,
expenses, operation or any other matter or thing furnished by any agent,
employee, servant, or any other person, unless specifically set forth in this
Agreement. Purchaser hereby waives, to the extent permitted by law, any and
all implied warranties.
9.5 Environmental Investigation of the Property. Purchaser
-------------------------------------------
acknowledges that it has had an opportunity to conduct its own environmental
investigation of the Property and the property adjacent to the Property.
Purchaser is aware of the environmental conditions affecting or related to
the Property and Purchaser agrees to take the Property subject to such
conditions. Purchaser agrees to assume all environmental costs and
liabilities arising out of or in any way connected to the Property.
Purchaser hereby releases Seller from any obligation to pay any such costs
and liabilities. Purchaser agrees to indemnify and hold harmless Seller from
and against any such costs and liabilities.
9.6 Confidentiality. Purchaser acknowledges that all information
---------------
regarding the Property furnished (or to be furnished) to Purchaser is and has
been so furnished on the following conditions:
(i) Purchaser shall use the information solely for purposes of
evaluating the Property and consummating the transaction contemplated in
this Agreement; and
(ii) Purchaser shall, subject to the terms of Section 9.7, use its
best efforts to maintain the confidentiality of such information.
9.7 Limited Disclosure. Purchaser shall, and shall cause its
------------------
directors, officers and other personnel, and its agents, employees and
representatives, to hold in strict confidence and not disclose to any other
party without the prior written consent of Seller, any of the information
regarding the Property delivered, provided or furnished to Purchaser or any
of its agents, representatives or employees. Notwithstanding anything to the
contrary hereinabove set forth, Purchaser may disclose such information only:
(i) on a "need-to-know" basis to its employees, members or professional firms
serving it in connection with this transaction, or to any potential lenders,
but Purchaser shall require such parties to hold all such information in
strict confidence, and not to disclose such information to any other party
(without the prior written consent of Seller); (ii) to any other party,
subject to Seller's consent, which consent shall not be unreasonably withheld
or delayed; and (iii) to any governmental agency if such agency requires such
disclosure in order for Purchaser to comply with applicable laws or
regulations.
9.8 Return of Information. In the event the Closing does not occur for
---------------------
any reason and this Agreement is terminated, Purchaser shall promptly return
to Seller all copies of all such information without retaining any copy
thereof, except such as must be retained by any professionals to whom such
information was disclosed in accordance with this Article 9 in order to
comply with their professional obligations. Purchaser may also disclose the
terms of this Agreement to any other party approved by Seller, as long as
prior to such disclosure such party agrees to be bound by the provisions of
this Article 9 by an instrument reasonably acceptable to Seller in form and
content.
9.9 Survival. The provisions of this Article 9 shall terminate at the
--------
Closing provided, however, that if the Closing does not occur, the provisions
of this Article 9 shall survive the termination of this Agreement.
ARTICLE 10
OPERATIONS PRIOR TO CLOSING
---------------------------
10.1 Continued Operations. Between the date of this Agreement and the
--------------------
Closing, Seller shall continue to operate the Property in its usual and
customary manner. Notwithstanding the provisions of the immediately
preceding sentence, Seller shall not be required to expend more than
$250,000.00 during the term of this Agreement ("Seller's Article 10 Amount")
on repairs and replacements to the Building (including, but not limited to,
materials, labor, supervision and overhead). If the cost of such repairs and
replacements exceeds Seller's Article 10 Amount, Purchaser shall, at Closing,
reimburse Seller for all sums actually expended by Seller in excess of
Seller's Article 10 Amount. Any such amount payable to Seller shall be paid
in the manner specified in Section 2.2.2 hereof. Without otherwise modifying
or limiting in any respect the terms and provisions set forth in Article
3.1.4 of this Agreement, all Service and Maintenance Agreements shall be
terminated by Seller, at Purchaser's request (such request to be given not
less than five (5) business days prior to Closing), as early as is
permissible under the applicable agreement and, if so requested by Purchaser,
Seller shall execute, at no cost or expense to Seller, the appropriate
notice(s) requesting such termination(s) (provided such applicable agreement
is terminable). In no event shall Seller be required to terminate any
Service and Maintenance Agreements which will or may impose or give rise to a
claim, or additional penalty charge against Seller or will cause a
termination of the obligation of the contractor to provide service or
maintenance prior to the Closing, and Purchaser shall indemnify and hold
harmless and defend Seller with respect to any claims, cost or expense
arising out of such termination.
10.2 Access to the Property. Seller agrees to afford Purchaser
----------------------
reasonable access to the Property prior to the Closing, at reasonable times
upon reasonable notice, provided that Purchaser shall not enter any portion
of the Property unless accompanied by a representative of Seller. Purchaser
specifically agrees that neither it, nor its employees or agents, will
communicate directly with Seller's employees, Tenants or managing agent.
Purchaser also agrees that Seller shall not be required to incur any cost or
expense or commence any action to afford Purchaser such access.
10.3 Space Leases. Seller agrees that between the date hereof and the
------------
Closing, Seller shall:
10.3.1 Not, without Purchaser's prior written consent, which
consent shall not be unreasonably withheld or delayed, terminate any Space
Lease except by reason of a default by the Tenant thereunder.
10.3.2 Not permit occupancy of, or enter into any new Space
Lease for, space in the Building which is vacant as of the date hereof, or
which may hereafter become vacant, without first giving Purchaser written
notice of the identity of the proposed tenant, together with a summary of the
terms thereof in reasonable detail, and a statement of the amount of the
brokerage commission, if any, payable in connection therewith and the terms
of payment thereof. If Purchaser objects to such proposed Space Lease,
Purchaser shall so notify Seller within two (2) Business Days after the
giving of Seller's notice to Purchaser, in which case Seller shall not enter
into the proposed Space Lease. Purchaser shall thereafter pay to Seller on
the first day of each month between the date hereof and the Closing Date, by
cashier's or bank check payable to the direct order of Seller, the rent and
additional rent that would have been payable under the proposed Space Lease
from the date on which the Tenant's obligation to pay rent would have
commenced if Purchaser had not so objected until the Closing Date, less
(i) the amount of the brokerage commission specified in Seller's notice,
(ii) the cost of tenant improvement work required to be performed by the
landlord under the terms of the proposed Space Lease to suit the premises to
the tenant's occupancy, and (iii) the amount of cash work allowances required
to be given by the landlord to the tenant under the terms of the proposed
Space Lease (the "Reletting Expenses"), prorated in each case over the term
of the proposed Space Lease and apportioned as of the Closing Date. If
Purchaser does not so notify Seller of its objection, Seller shall have the
right to enter into the proposed Space Lease with the tenant identified in
Seller's notice and Purchaser shall pay to Seller, in the manner specified in
Section 2.2.2 hereof, the Reletting Expenses, to the extent actually incurred
by Seller, prorated in each case over the term of the Space Lease and
apportioned as of the later of the Closing Date or the rent commencement
date. Such payment shall be made by Purchaser to Seller at Closing and if
Closing does not occur for any reason other than by reason of Seller's
default, then the aggregate sum that would have been payable by Purchaser
shall be payable at the last scheduled Closing Date.
10.4 Tenant Estoppel Certificates. (a) Reasonably promptly after the
----------------------------
execution of this Agreement, Seller shall send a written request to each
Tenant in accordance with its Space Lease to furnish a tenant estoppel
statement substantially in the form such Tenant is obligated to furnish to
the landlord under its Space Lease, or if no such form is contained or
specified in a Tenant's Space Lease or if a Tenant's Space Lease provides
that the Tenant shall make additional statements beyond those specifically
provided for in the Space Lease ("Optional Statements"), then substantially
in the form annexed hereto as Schedule "L-1" (a "Tenant Estoppel Statement").
Seller shall deliver to Purchaser a copy of each executed Tenant Estoppel
Statement thereafter received from any Tenant reasonably promptly after
Seller's receipt of same. In no event shall Purchaser have any right to
terminate this Agreement, except as otherwise expressly provided in this
Section 10.4, nor shall Purchaser be entitled to a reduction of the Purchase
Price nor shall Purchaser's obligations under this Agreement be otherwise
affected in any manner on account of any statement or information contained
in any Tenant Estoppel Statement.
(b) Seller shall be obligated to furnish to Purchaser, as a
condition of Purchaser's obligation to close hereunder that Purchaser shall
receive, at or before Closing, with respect to each "Required Tenant" (as
such term is hereinafter defined), either (x) a Tenant Estoppel Statement, in
"Acceptable Form" (as such term is hereinafter defined), or (y) to the extent
that a Tenant Estoppel Statement (whether or not in Acceptable Form) is not
received from a Required Tenant (or is received but is incomplete), a
certificate in the form of Schedule "L-2" annexed hereto (a "Seller's
Estoppel Statement") executed by Seller. A Tenant Estoppel Statement
obtained by Seller from any Required Tenant shall be deemed to be in
"Acceptable Form" if such Tenant Estoppel Statement is on the form required
pursuant to this Section 10.4. Notwithstanding anything to the contrary
contained herein, a Tenant Estoppel Statement shall not be required to
contain any Optional Statements in order to be in "Acceptable Form."
(c) In the event that Seller is unable to fulfill the condition
set forth in Section 10.4(b) hereof by delivery of Tenant Estoppel Statements
and/or one or more Seller's Estoppel Statements, Seller shall have no
liability to Purchaser on account thereof, and Purchaser's sole remedy shall
be to terminate this Agreement and to receive a refund of the Deposit,
together with any accrued interest thereon, and upon such termination of this
Agreement neither party shall have any further obligation to the other party
hereunder except for those provisions of this Agreement which expressly
survive the termination of this Agreement.
(d) As used herein, the term "Required Tenants" shall mean:
(i) Metro-North Commuter Railroad under the Lease dated July
31, 1994 (as amended), and Dow Xxxxx & Company under
Lease dated August 1, 1991 (as amended);
(ii) At least sixty-five (65%) percent of the Tenants whose
Leases cover, individually (or when combined with other
Leases for any such Tenant who occupies space in the
Building pursuant to multiple Leases), more than 25,000
rentable square feet in the Building exclusive of the
Required Tenants set forth in clause (i) of this
subsection 10.4(d); and
(iii) At least sixty-five (65%) percent of the Tenants whose
Leases cover, individually (or when combined with other
Leases for any such Tenant who occupies space in the
Building pursuant to multiple Leases), more than 4,000
rentable square feet, exclusive of the Tenants set forth
in clauses (i) and (ii) of this Subsection 10.4(d).
(e) The representations set forth in any Seller's Estoppel
Statement delivered pursuant to this Section 10.4 shall survive the Closing
for a period of ninety (90) days, or until such earlier date that the
Required Tenant delivers to Purchaser a Tenant Estoppel Statement in
Acceptable Form.
10.5 Request for Lessor Consent and Estoppel. From the date of this
-----------------------------------------
Agreement to the Closing Date, Seller shall:
(a) Use its reasonable efforts to obtain a written consent from NY
Graybar L.P., the lessor of the Operating Sublease to the assignment of the
Operating Sublease to Purchaser (the "NY Graybar L.P. Consent"). Upon
receipt of such consent, Seller shall deliver an original thereof to
Purchaser. However, if Seller has not received the NY Graybar L.P. Consent
within seven (7) days prior to the Closing Date, Seller may adjourn the
Closing for up to thirty (30) days for the purpose of procuring the NY
Graybar L.P. Consent, and in the event Seller fails to deliver the NY Graybar
L.P. Consent to Purchaser by a date not less than seven (7) days prior to the
Closing Date, as adjourned, either party may elect to terminate this
Agreement. If either party does so elect, Seller's sole liability thereafter
shall be to refund to Purchaser its Deposit, together with any interest
accrued thereon, and upon such termination of this Agreement neither party
shall have any further obligation to the other party hereunder except for
those provisions of this Agreement which expressly survive the termination of
this Agreement.
(b) Use its reasonable efforts to obtain an estoppel statement
from NY Graybar L.P., in the form annexed hereto as Schedule L-3 (the
"Lessor's Estoppel Statement").
(c) Provide Purchaser with a copy of any notice received under the
Operating Sublease, including without limitation, a notice of default.
(d) Maintain the Operating Sublease in full force and effect, make
all payments in a timely manner, and observe and perform all covenants and
obligations of lessee thereunder.
(e) Not, without the prior written consent of Purchaser, which
consent shall not be unreasonably withheld or delayed, modify, amend, extend,
terminate, or otherwise alter the Operating Sublease, or any documents or
agreements relating thereto.
10.6 Consent under Underlying Leases.
--------------------------------
(a) From the date of this Agreement to the Closing Date, Seller
shall use reasonable efforts to obtain a written consent to the assignment of
the Operating Sublease from:
(i) Associates under the Operating Lease (the "Associates
Consent");
(ii) Metlife under the Mesne Lease (the "Metlife Consent");
(b) Seller shall be obligated to furnish to Purchaser, as a
condition of Purchaser's obligation to close hereunder that Purchaser shall
receive, at or before Closing, the NY Graybar L.P. Consent, Associates
Consent and Metlife Consent, and either (x) a Lessor Estoppel Statement, in
"Acceptable Form" (as such term is hereinafter defined), or (y) to the extent
that a Lessor Estoppel Statement (whether or not in Acceptable Form) is not
received from NY Graybar L.P. (or is received but is incomplete), a
certificate in the form of Schedule "L-4" annexed hereto (a "Seller's
Operating Sublease Estoppel Statement") executed by Seller. A Lessor
Estoppel Statement obtained by Seller from NY Graybar L.P. shall be deemed to
be in "Acceptable Form" if such Lessor's Estoppel Statement is the form of
Schedule "L-3."
(c) In the event Seller is unable to fulfill the conditions set
forth in Section 10.5 and Section 10.6 by delivery of: (i) a NY Graybar L.P.
Consent, (ii) Associates Consent, (iii) Metlife Consent and (iv) either a
Lessor's Estoppel Statement or Seller's Operating Sublease Estoppel
Statement, Seller shall have no liability to Purchaser on account thereof,
and Purchaser's sole remedy shall be to terminate this Agreement and to
receive a refund of the Deposit, together with any accrued interest thereon,
and upon such termination of this Agreement neither party shall have any
further obligation to the other party hereunder except for those provisions
of this Agreement which expressly survive the termination of this Agreement.
10.7 Purchaser's Consent Obligations. With respect to the obtaining of
-------------------------------
the NY Graybar L.P. Consent, Associates Consent and Metlife Consent,
Purchaser shall: (i) cooperate in submitting information, reference
material, financial and other data required under any applicable lease or
reasonably requested by a party to whom a request for consent was made, and
(ii) execute and deliver such instruments and assumptions required under any
applicable lease or reasonably requested by a party to whom a request for
consent was made.
ARTICLE 11
CASUALTY AND EMINENT DOMAIN
---------------------------
11.1 Casualty and Risk of Loss. Between the date of this Agreement
-------------------------
until the time of the delivery of the Deed as provided by Section 18.1.2
herein, the risk of loss or damage to the Property by fire or other casualty,
is borne and assumed by Seller. Seller's assumption of the risk of loss is
without any obligation or liability by Seller to repair the same, except
Seller, at Seller's sole option, shall have the right to repair or replace
such loss or damage to the Property. In the event any loss or damage to the
Property occurs, and Seller elects to make such repair or replacement, this
Agreement shall continue in full force and effect, and Seller shall be
entitled to a reasonable adjournment of the Closing Date, not to exceed one
hundred eighty (180) days. If Seller does not however elect to repair or
replace any such loss or damage, Purchaser shall have the following options
(provided, however, that if in Seller's reasonable judgment the cost of
repairing any such loss or damage to the Property will not exceed
$6,000,000.00. Purchaser will be deemed to have made the election set forth
in Section 11.1.2 hereof):
11.1.1 Declaring this Agreement terminated, in which event the
Deposit, together with any interest accrued thereon, shall be returned to
Purchaser, and upon such payment, this Agreement shall be null and void and
the parties hereto shall be relieved and released of and from any further
liability with respect to each other, except with respect to the provisions
of this Agreement which expressly survive the termination of this Agreement;
or
11.1.2 Accepting (i) the Assignment of the Operating Sublease
upon payment in full of the Purchase Price and without any abatement of the
Purchase Price by reason of such loss or damage, (ii) payment of the amount
of any insurance proceeds to the extent actually collected by Seller in
connection with such fire or other casualty, less the amount of the actual
expenses incurred by Seller in collecting such proceeds and in making repairs
to the Property occasioned by such fire or other casualty, and (iii) an
assignment (without warranty or recourse to Seller) of Seller's rights to any
payments to be made subsequent to the Closing Date under any hazard insurance
policy or policies in effect with respect to the Property. Purchaser shall
not be entitled to the payment of insurance proceeds or an assignment of
Seller's right to insurance proceeds if such proceeds are in excess of the
cost of repairing any loss or damage to the Property; Seller shall be
entitled to the excess proceeds, if any.
If Purchaser fails to exercise its option as set forth in Section 11.1.1
within ten (10) days after notice to Purchaser of any loss or damage to the
Property, Purchaser shall be deemed to have exercised the option set forth in
Section 11.1.2.
11.2 Eminent Domain. If prior to the Closing all or any part of the
--------------
Property is taken by condemnation or a taking in lieu thereof, the following
shall apply:
11.2.1 In the event a material part of the Property is taken,
Purchaser, by written notice to Seller (effective only if delivered within
fifteen (15) days after Purchaser receives notice of such taking), may elect
to cancel this Agreement prior to the Closing Date. In the event that
Purchaser shall so elect, the Deposit, together with any interest accrued
thereon, shall be returned to Purchaser, and upon such payment, this
Agreement shall be null and void and the parties hereto shall be relieved and
released of and from any further liability hereunder and with respect to each
other, except with respect to the provisions of this Agreement which
expressly survive the termination of this Agreement.
11.2.2 In the event a minor or immaterial part of the Property
is taken, or in the event of a change of legal grade, neither party shall
have any right to cancel this Agreement, and title shall nonetheless close in
accordance with this Agreement without any abatement of the Purchase Price or
any liability or obligation on the part of Seller by reason of such taking;
provided, however, that Seller shall, at Closing, (i) turn over and deliver
to Purchaser the amount of any award or other proceeds of such taking to the
extent actually collected by Seller as a result of such taking, less the
amount of the actual expenses incurred by Seller in collecting such award or
other proceeds and in making repairs to the Property occasioned by such
taking, and (ii) deliver to Purchaser an assignment (without warranty or
recourse to Seller) of Seller's right to any such award or other proceeds
which may be payable subsequent to the Closing Date as a result of such
taking.
11.2.3 The term "material part," as distinguished from a "minor
or immaterial part," as used herein shall mean a portion of the Property
having a value (based upon an appraisal by an appraiser acceptable to Seller,
subject to Purchaser's approval, which shall not be unreasonably withheld or
delayed) in excess of $6,000,000.00.
11.3 Survival. This Article 11 shall survive the Closing and is
--------
intended to be an express provision to the contrary within the meaning of
Section 5-1311 of the General Obligations Law.
ARTICLE 12
ASSESSMENTS
-----------
If on or after the date of this Agreement, the Property or any part
thereof shall be or shall have been affected by any real estate tax
assessment or assessments which are or may become payable in one or more
installments, Purchaser agrees to take title to the Property (without
reduction in or adjustment of the Purchase Price) subject to all unpaid
installments becoming due and payable after the date hereof.
ARTICLE 13
CLOSING ADJUSTMENTS
-------------------
13.1 Adjustments and Prorations. The following matters and items shall
--------------------------
be apportioned or adjusted between the parties hereto at the closing of title
to the Property pursuant to this Agreement (the "Closing"), as of 12:01 A.M.
of the day of the Closing (the "Adjustment Date"). The foregoing is based
upon the Seller having use of the funds constituting the cash portion of the
Purchase Price on the Closing Date, and thus the income and expense for the
Closing Date are for Purchaser's account. If the funds are not transferred
to be available to Seller on the Closing Date, then the Adjustment Date shall
be unchanged and Seller shall be entitled to a per diem addition of Twelve
Thousand Dollars ($12,000).
13.1.1 Fixed Rents.
-----------
(a) Fixed rents ("Fixed Rents") paid or payable by Tenants under
the Space Leases in connection with their occupancy shall be adjusted and
prorated on an if, as and when collected basis. Any Fixed Rents collected by
Purchaser or Seller after the Closing from any Tenant who owes Fixed Rents
for periods prior to the Closing, shall be applied: (i) first, in payment of
Fixed Rents owed by such Tenant for the calendar month in which the Closing
Date occurs; (ii) second, in payment of Fixed Rents owed by such Tenant for
the calendar month prior to the calendar month in which the Closing Date
occurs; (iii) third, in payment of Fixed Rents owed by such Tenant for the
period (if any) after the calendar month in which the Closing Date occurs
through the end of the calendar month in which such amount is collected; and
(iv) fourth, after Fixed Rents for all current periods have been paid in
full, in payment of Fixed Rents owed by such Tenant for the period prior to
the calendar month preceding the calendar month in which the Closing Date
occurs. Each such amount, less any costs of collection (including reasonable
attorneys' fees) reasonably allocable thereto, shall be adjusted and prorated
as provided above, and the party who receives such amount shall promptly pay
over to the other party the portion thereof to which it is so entitled. In
furtherance and not in limitation of the preceding sentence, with respect to
any Tenant which has paid all Fixed Rents for periods through the Closing,
if, prior to the Closing, Seller shall receive any prepaid Fixed Rents from a
Tenant attributable to a period following the Closing, at the Closing, Seller
shall pay over to Purchaser the amount of such prepaid Fixed Rents.
(b) Purchaser shall xxxx Tenants who owe Fixed Rents for periods
prior to the Closing on a monthly basis for a period of six (6) consecutive
months following the Closing Date and shall use commercially reasonable
efforts to collect such past due Fixed Rents; provided, however, that
-------- -------
Puractions or proceedings to collect any such past due Fixed Rents.
Notwithstanding the foregoing, if Purchaser is unable to collect such past
due Fixed Rents, Seller shall have the right, upon prior written notice to
Purchaser, to pursue such Tenants to collect Fixed Rent delinquencies
(including, without limitation, the prosecution of one or more lawsuits), but
Seller shall not be entitled to evict (by summary proceedings or otherwise)
any such Tenants. Any payment by a Tenant in an amount less than the full
amount of Fixed Rents and "Overage Rent" (as such term is defined in Section
13.1.2(a)) then due and owing by such Tenant, shall be applied first to Fixed
Rents (in the order of priority as to time periods as is set forth in Section
13.1.1(a) above) to the extent of all such Fixed Rents then due and owing by
such Tenant, and thereafter to Overage Rent (in the order of priority as to
time periods as is set forth in Section 13.1.2).
13.1.2 Overage Rent.
------------
(a) Any of the following charges and/or rents provided for by any
Space Lease: (i) the payment of additional rent based upon a percentage of
the Tenant's business during a specified annual or other period (sometimes
referred to as "percentage rent"), (ii) common area maintenance or "CAM"
charges, (iii) "escalation rent" or additional rent based upon increases in
real estate taxes, operating expenses, labor costs, cost of living, xxxxxx'x
wages, or other index including the consumer price index or otherwise, or
(iv) any other items of additional rent, e.g., charges for electricity,
----
water, cleaning, overtime services, sundries and/or miscellaneous charges,
shall be adjusted and prorated on an if, as and when collected basis (such
percentage rent, CAM charges, escalation rent and other additional rent being
collectively called "Overage Rent").
(b) (i) Purchaser agrees that as to any Overage Rent for
accounting periods prior to the Closing that are to be paid after the
Closing, to pay the entire amount over to Seller upon receipt thereof, less
any costs of collection (including reasonable attorneys' fees) reasonably
allocable thereto. Purchaser agrees that it will (i) promptly render bills
for any such Overage Rent, (ii) xxxx Tenants such Overage Rent on a monthly
basis for a period of six (6) consecutive months thereafter, and (iii) use
commercially reasonable efforts to collect such Overage Rent; provided,
--------
however, that Purchaser shall have no obligation to commence any actions or
-------
proceedings to collect any such Overage Rent.
(ii) Notwithstanding the foregoing, if Purchaser is unable to
collect such Overage Rent, Seller shall have the right, upon prior written
notice to Purchaser, to pursue Tenants to collect such delinquencies
(including, without limitation, the prosecution of one or more lawsuits), but
Seller shall not be entitled to evict (by summary proceedings or otherwise)
any such Tenants. Seller shall furnish to Purchaser all information relating
to the period prior to the Closing that is reasonably necessary for the
billing of such Overage Rent, and Purchaser will deliver to Seller,
concurrently with the delivery to Tenants, copies of all statements relating
to Overage Rent for a period prior to the Closing. Purchaser shall xxxx
Tenants for Overage Rent for accounting periods prior to the Closing in
accordance with and on the basis of such information furnished by Seller.
(c) Overage Rent for an accounting period in which the Closing
Date occurs shall be apportioned between Seller and Purchaser as of the
Adjustment Date, with Seller receiving the proportion of such Overage Rent
less a like portion of any costs and expenses (including reasonable
attorneys' fees) incurred in the collection of such Overage Rent that the
portion of such accounting period prior to the Closing Date bears to such
entire accounting period, and Purchaser receiving the proportion of such
Overage Rent less a like portion of any costs and expenses (including
reasonable attorneys' fees) incurred in the collection of such Overage Rent
that the portion of such accounting period from and after the Closing Date
bears to such entire accounting period. If, prior to the Closing, Seller
shall receive any installments of Overage Rent attributable to Overage Rent
for periods from and after the Closing Date, such sum shall be apportioned at
the Closing. If, after the Closing, Purchaser shall receive any installments
of Overage Rent attributable to Overage Rent for periods prior to the
Closing, xxxx' fees) incurred by Purchaser in the collection of such Overage
Rent shall be paid by Purchaser to Seller promptly after Purchaser receives
payment thereof.
(d) Any payment by a Tenant on account of Overage Rent (to the
extent not applied against Fixed Rents due and owing by such Tenant in
accordance with Section 13.1.1 (b) hereof) shall be applied to Overage Rent
then due in the following order of priority: (i) first, in payment of
Overage Rent for the accounting period in which the Closing Date occurs; (ii)
second, in payment of Overage Rent for the accounting period immediately
preceding the accounting period in which the Closing Date occurs; and (iii)
third, in payment of Overage Rent for the accounting period immediately
succeeding the accounting period in which the Closing Date occurs, and (iv)
thereafter in the chronological order in which such payments are due for
each such accounting period pursuant to the applicable Space Lease.
(e) To the extent that any portion of Overage Rent is required to
be paid monthly by Tenants, on account of estimated amounts for any calendar
year (or, if applicable, any Space Lease year or any other applicable
accounting period), and at the end of such calendar year (or Space Lease year
or other applicable accounting period, as the case may be), such estimated
amounts are to be recalculated based upon the actual expenses, taxes and
other relevant factors for that calendar year, Space Lease year or other
applicable accounting period, with the appropriate adjustments being made
with such Tenants, then such portion of the Overage Rent shall be prorated
between Seller and Purchaser at the Closing based on such estimated payments
(i.e., with Seller entitled to retain all monthly or other periodic
----
installments of such amounts paid with respect to periods prior to the
calendar month or other applicable installment period in which the Closing
occurs; Seller to pay to Purchaser at the Closing all monthly oy Seller with
respect to periods following the calendar month or other applicable
installment period in which the Closing occurs, and Seller and Purchaser to
apportion as of the Closing Date all monthly or other periodic installments
of such amounts with respect to the calendar month or other applicable
installment period in which the Closing occurs).
At the time(s) of final calculation and collection from (or
refund to) each Tenant of the amounts in reconciliation of actual Overage
Rent for a period for which estimated amounts paid by such Tenant have been
prorated, there shall be a re-proration between Seller and Purchaser. If,
with respect to any Tenant, the recalculated Overage Rent exceeds the
estimated amount paid by such Tenant, (i) the entire excess shall be paid by
Purchaser to Seller, if the accounting period for which such recalculation
was made expired prior to the Closing, and (ii) such excess shall be
apportioned between Seller and Purchaser as of the Closing Date (on the basis
described in the first sentence of Section 13.1.2(c) hereof), if the Closing
occurred during the accounting period for which such recalculation was made,
with Purchaser paying to Seller the portion of such excess which Seller is so
entitled to receive. If, with respect to any Tenant, the recalculated Overage
Rent is less than the estimated amount paid by such Tenant, (1) the entire
shortfall shall be paid by Seller to Purchaser (or, at Seller's option,
directly to the Tenant in question), if the accounting period for which such
recalculation was made expired prior to the Closing, and (2) such shortfall
shall be apportioned between Seller and Purchaser as of the Closing Date (on
the basis described in the first sentence of Section 13.1.2(c) hereof), if
the Closing occurred during the accounting period for which such
recalculation was made, with Seller paying to Purchaser (or, at Seller's
option, directly to the Tenant in question) the portion of such shortfall so
allocable to Seller.
(f) Until such time as all amounts required to be paid to Seller
by Purchaser pursuant to Section 13.1.1 and this Section 13.1.2 are paid in
full, but in no event for a period longer than twelve (12) months following
the Closing, Purchaser shall furnish to Seller, not less frequently than
monthly, a reasonably detailed accounting of such amounts owed by Purchaser;
which accounting shall be delivered to Seller on or prior to the fifteenth
day following the last day of each calendar month from and after the calendar
month in which the Closing occurs. Subsequent to the Closing, Seller
shalrior written notice to Purchaser, to review Purchaser's rental records
with respect to the Property during ordinary business hours on Business Days,
to ascertain the accuracy of such accountings.
13.1.3 Taxes and Assessments. Real estate taxes, assessments,
---------------------
Business Improvement District charges and like charges, ad valorem taxes and
personal property taxes, if any, on the basis of the fiscal year for which
assessed. If the Closing shall occur before the tax rate or assessment is
fixed, the apportionment of such real estate taxes and personal property
taxes, if any, shall be upon the basis of the tax rate for the immediately
preceding year applied to the latest assessed valuation; however, adjustment
will be made upon the actual tax amount, when determined. Any discount
received for early payment shall be for the benefit of Seller, and any
interest or penalty assessed for late payment shall be borne by Seller. Real
estate taxes shall be treated on an annualized basis even if tax payments
made in installments are not equal for each installment period. Thus, for
example, if the installment for the first half of a fiscal year is paid and
is higher than the second half installment, the proration will be based on
payment of fifty percent (50%) of the aggregate taxes for such fiscal year.
13.1.4 Deposits. Tax and utility company deposits, or deposits
--------
with any supplier of goods, if any, shall be paid by Purchaser to Seller (or,
at Seller's option, Seller shall obtain refunds of the deposits directly from
the taxing authority or utility company, as the case may be).
13.1.5 Water and Sewer Charges. Water charges and sewer rents
-----------------------
on the basis of the fiscal year, but if there are water meters on the
Property, Seller, to the extent obtainable, shall supply to Purchaser a water
meter reading current through the Adjustment Date, or if not feasible to so
read, to a date not more than thirty (30) days prior to the Adjustment Date,
and the unfixed meter charges based thereon for the intervening period shall
be apportioned on the basis of such last meter reading. Upon the taking of a
subsequent actual water meter reading, such apportionment shall be readjusted
and Seller or Purchaser, as the case may be, will promptly deliver to the
other the amount determined to be due upon such readjustment. If Seller is
unable to furnish such prior meter reading, any reading subsequent to the
Closing will be apportioned on a per diem basis from the date of such reading
immediately prior thereto, and Seller shall pay the proportionate charges due
up to the date of Closing. Unpaid water meter bills, frontage, sewer charges
and assessments which are the obligations of Tenants in accordance with the
terms of their respective Space Leases shall not be adjusted, nor shall the
same be deemed an objection to title, and Purchaser will take title subject
thereto.
13.1.6 License Fees. Amounts paid or payable with respect to
------------
assignable licenses and permits, if any, affecting the Property.
13.1.7 Service and Maintenance Charges. Amounts paid or payable
-------------------------------
with respect to the Service and Maintenance Agreements.
13.1.8 Vault Fees. Proration of vault charges or vault taxes
----------
shall be based upon the last xxxx received, or title company report, prorated
at the last known rate to the Adjustment Date. No proration shall be made if
such vault charge is the obligation of a Tenant in possession.
13.1.9 Utilities. Utility charges, including, but not limited
---------
to, electricity, gas, steam, telephone and other utilities (other than such
charges which are the obligation of Tenants under their respective Space
Leases), all prorated based upon the most current xxxx unless actual readings
are obtained as of the Adjustment Date, in which case such actual readings
shall govern, and each party shall pay the amount billed to it, respectively.
13.1.10 Inventory. The value of Building inventory and supplies
---------
(e.g., soap, cleaning powder, light bulbs, etc.) in unopened containers, if
----
any, in accordance with an inventory prepared by Seller, shall be credited to
Seller. Such value amount shall be determined based upon the cost thereof,
to the extent practical.
13.1.11 Tenant Security Deposits. (a) Security deposits of
------------------------
Tenants (other than those which are marketable securities, letters of credit,
or other non-cash items) shall be transferred, at Seller's option, either
(i) by direct assignment of the bank accounts in which deposited, or (ii) by
Seller retaining all rights in the bank accounts and crediting to Purchaser
the amount of the security deposits to be delivered pursuant to this
Agreement. In either event, there shall be maintained or credited to Seller
all interest earned or accrued to the Adjustment Date, less such portion of
the interest to which the respective Tenant would be entitled pursuant to its
Space Lease or by law. No allocation shall be made of security deposits
properly applied prior to the Adjustment Date, and Seller may retain such
amounts. Security deposits applied after the Adjustment Date shall be
applied in the order of priority set forth in paragraph (a) of Section 13.1.1
hereof. Security deposits held in the form of marketable securities shall be
assigned and delivered to Purchaser at Closing, with any interest thereon
through the Adjustment Date credited to Seller, less such portion to which
the Tenant would be entitled. Security deposits held in the form of letters
of credit shall be assigned and delivered to Purchaser at Closing; provided,
however, that if the consent or authorization of the issuer of any such
letter of credit is required, the failure to obtain such consent shall not
constitute grounds for Purchaser or Seller to adjourn the Closing, but Seller
shall cooperate with Purchaser in obtaining such consent subsequent to the
Closing.
(b) If any Tenant who owes past due rent as of the Closing
Date is evicted from the Building and its Space Lease is terminated, then
promptly after such eviction and termination, such Tenant's security deposit
shall be applied in the following order of priority: (i) first to the
reimbursement of Purchaser's reasonable costs and expenses in obtaining such
eviction and termination; (ii) then in the order of priority set forth in
Section 13.1.1 hereof.
(c) At Closing Purchaser shall indemnify and hold Seller free
and harmless from and against any claim made with respect to an assigned
security deposit, or a security deposit as to which Purchaser has received a
credit, and Purchaser shall give such notice to each Tenant with respect to a
security deposit as will eliminate or reduce Seller's responsibility.
13.1.12 Fuel. Proration shall be made of fuel on the Property
----
on the Adjustment Date, based upon a reading made by Seller's supplier as
close as obtainable to the Adjustment Date (reasonably adjusted to the
quantity present on the Adjustment Date). The value thereof shall be
calculated at Seller's last cost (including sales tax). If the heating,
ventilation or air conditioning for the Property is provided by a measurable
product (e.g. steam or gas) the adjustment will be based on meter readings
prorated, if necessary, to the Adjustment Date.
13.1.13 Employee Compensation. Proration shall be made of all
---------------------
wages of employees engaged at the Property, together with vacation pay,
social security taxes, workers' compensation, pension and other fringe
benefits. Fringe benefit years shall be based upon union contract rights, if
feasible, and otherwise determined as a fair allocation in Seller's judgment.
Seller shall not be charged with termination pay arising by reason of
Purchaser's termination of any employees, or failure to hire any employees at
or subsequent to the Closing, and Purchaser shall be fully liable for any
such termination pay. If employees engaged at the Building are in the employ
of an agent, then such adjustment or proration shall be made as appropriate
with the agent to reach the same economic result as if in the direct employ
of Seller. Compliance with the WARN act shall be Purchaser's responsibility.
13.1.14 Tenant Improvement Work at Landlord's Cost. With respect
------------------------------------------
to tenant improvement work performed or to be performed to leased space to be
paid at the landlord's cost pursuant to any Space Lease, (i) Purchaser shall
receive a credit against the Cash Balance at Closing for the cost of the
performance of any tenant improvement work required to be performed pursuant
to Space Leases executed (or renewal, extension or additional space rights or
options exercised) prior to December 1, 1997 (the "Space Leasing Cutoff
Date"), and (ii) Purchaser shall be obligated to pay, as and when due, for
the cost of the performance of any tenant improvement work required to be
performed pursuant to Space Leases entered into (or renewal, extension or
additional space rights or options exercised) on or after the Space Leasing
Cutoff Date, and the Cash Balance shall be increased by any sums expended by
Seller prior to closing for obligations referred to in this clause (ii).
13.1.15 Costs of Work to be Paid or Reimbursed to Tenants. With
-------------------------------------------------
respect to the cost of work performed or to be performed at the Property
attributable to leased space to be either paid or reimbursed to Tenants by
the landlord pursuant to any Space Lease, (i) Purchaser shall receive a
credit against the Cash Balance at Closing to the extent such payment or
reimbursement is required pursuant to a Space Lease executed (or renewal,
extension or additional space rights or options exercised) prior to the Space
Leasing Cutoff Date, and (ii) Purchaser shall be obligated to pay or
reimburse any such Tenant, as and when due, to the extent such payment or
reimbursement is required pursuant to a Space Lease entered into (or renewal,
extension or additional space rights or options exercised) on or after the
Space Leasing Cutoff Date, and the Cash Balance shall be increased by any sum
expended by Seller prior to Closing for obligations referred to in this
clause (ii).
13.1.16 Leasing Commissions. Brokerage and leasing commissions
-------------------
incurred in connection with the leasing of space at the Property shall be
prorated so that such commissions owed with respect to Space Leases executed
prior to the Space Leasing Cutoff Date shall be paid by Seller, and on or
after the Space Leasing Cutoff Date shall be paid, as and when due, by
Purchaser. No adjustment shall be made with respect to leasing or brokerage
commissions payable on or after the Closing Date as a consequence of an event
occurring after the Closing. Thus, proration of leasing commissions shall be
made if the leasing to which the leasing commission is attributable was made
prior to the Space Leasing Cutoff Date borne by Seller and if after the Space
Leasing Cutoff Date borne by Purchaser. If as of the Closing the leasing
commission is an obligation of Seller if an event occurs, (e.g. renewal,
expansion, etc.) and thereafter the event does occur then the leasing
commission if earned is to be borne by Purchaser and Purchaser shall
indemnify and hold Seller free and harmless from and against any liability
for leasing brokerage payable by Purchaser.
13.1.17 Insurance Premiums. No existing insurance policy shall
------------------
be assigned to Purchaser, and no adjustment of any insurance premiums shall
be made.
13.1.18 Operating Sublease Rent.
-----------------------
(a) Fixed or base rent under the Operating Sublease including
any portion thereof denominated or characterized as ground rent shall be
adjusted and prorated on a cash basis.
(b) Additional rent items other than Overage Rent payable
pursuant to the Operating Sublease (herein called the "Operating Sublease
Overage Rent" to distinguish such obligation from Space Tenants' obligations
for Overage Rent) shall likewise be adjusted and prorated on a cash basis but
with respect to additional rent not payable or retained by the lessor under
the Operating Sublease adjustments and prorations shall be made without
duplication.
(c) Operating Sublease Overage Rent is payable annually on a
calendar year basis. Purchaser shall pay the entire Operating Sublease
Overage Rent for the calendar year 1998 in accordance with the Operating
Sublease, but shall be entitled to a credit from Seller for the amount of
Operating Sublease Overage Rent allocable to the portion of 1998 ending on
the Adjustment Date, net of any credit against such Operating Sublease
Overage Rent to which Seller would be entitled under the Operating Sublease
for "excess cash payments" allocable to the portion of 1998 ending on the
Adjustment Date. Not less than ten (10) days prior to Closing, accountants
or other representatives for each of Seller and Purchaser shall agree upon a
projected Operating Sublease Overage Rent allocable to the portion of the
calendar year 1998 occurring prior to the Closing Date ("Seller's Period").
For the purpose of determining the projected Operating Sublease Overage Rent
for Seller's Period, the net income as determined by the terms and conditions
of the Operating Sublease shall be calculated for Seller's Period and
compared to the minimum net income for 1998 (i) prorated for Seller's Period,
and (ii) further adjusted to the extent permitted by the Operating Sublease
by deferrals, cash payments, deductions allocable to depreciation,
amortization of capital improvements and alterations for subtenants. If such
calculations result in an excess of Operating Sublease Overage Rent currently
payable for Seller's Period Seller's Period then, Purchaser shall receive a
credit at Closing equal to such excess amount. The credit referred to in the
preceding sentence shall be reduced by the amount of any estimated payments
on account of Operating Sublease Overage Rent made by Seller for the calendar
year 1998. If the excess cash payments for Seller's Period exceed the
Operating Sublease Overage Rent for Seller's Period, then Seller shall
receive a credit at Closing equal to such excess amount. The calculation of
Operating Sublease Overage Rent adjustment shall be recalculated at the
request of either party not less than sixty (60) nor more than one hundred
twenty (120) days after the end of the calendar year in which the Closing
Date occurs, and both Seller and Purchaser shall make appropriate operating
records available. In the event of a failure to agree on an adjustment
amount at the projection prior to Closing or at the post calendar year
recalculation, either party may cause a determination, having the force of an
arbitration by selection of a single arbitrator made jointly by Seller and
Purchaser upon ten (10) days notice given to a party and initiated by either
party with a proposed arbitrator. If within such ten (10) day period, the
parties do not agree upon a single arbitrator then either party may initiate
the then appropriate procedure before the American Arbitration Association
for Commercial Arbitration in the Borough of Manhattan, City and State of New
York. A determination by an arbitrator thus selected shall be final and
binding on the parties. The cost of such arbitration shall be borne equally
by Seller and Purchaser.
It is hereby agreed that no adjustments shall be included as part of the
Operating Sublease Overage Rent adjustment, with respect to either: (i)
"Unamortized Sums," or (ii) "Excess Cash Repayments," except to the extent
otherwise expressly provided above as to the adjustments for Seller's Period
(as each quoted term is herein defined). Unamortized Sums shall mean the
unamortized portion of amounts deductible in calculating Operating Sublease
Overage Rent attributable to expenditures made prior to January 1, 1998.
Excess Cash Repayments shall mean amounts which the sublessee is obligated to
pay for any portion of the term of the Operating Sublease occurring after
January 1, 1998 pursuant to Section 2.02(5) of the Operating Lease, as a
result of a reduction in Operating Sublease Overage Rent received by Seller
for any period prior to the Adjustment Date pursuant to Section 2.05(5) of
the Operating Lease.
Seller waives any right or claim it may have with respect to the
Unamortized Sums and agrees that the benefit thereof post closing shall inure
to Purchaser in determinations of Operating Lease Overage Rent.
Purchaser waives any right or claim it may have with respect to the
Excess Cash Repayments and agrees to assume such obligation in determinations
of Operating Sublease Overage Rent for 1998 and all future calendar years.
Each party agrees that the benefits and burdens of the understanding
expressed in the preceding two sentences are part of the consideration for
this Agreement.
13.1.19 Other Adjustments. (a) Rents due pursuant to
-----------------
Section 10.3.2 hereof.
(b) Reletting Expenses pursuant to Section 10.3.2 hereof.
13.1.20 Survival. The provisions of this Section 13.1 shall
--------
survive the Closing.
13.2 Determination of Closing Adjustments. The parties hereto agree to
------------------------------------
make a good faith effort to determine the adjustments and prorations to be
made at Closing, pursuant to this Article, at least three (3) Business Days
prior to the Closing Date.
13.3 Net Apportionments and Adjustments.
----------------------------------
13.3.1 Due Seller. In the event the net apportionments and
----------
adjustments as provided in Section 13.1 result in a payment due Seller, then
such payment shall be made at Closing in the manner set forth in
Section 2.2.2. In the event that despite Purchaser's good faith efforts,
the parties hereto are unable to determine the amount of the adjustments to
be paid to Seller at Closing, if any, on or before the date which is three
(3) Business Days prior to the Closing Date, such amount may be paid by
Purchaser to Seller at the Closing by cashier's or bank check, or by a
certified check of Purchaser drawn upon a bank which is a member of The New
York Clearing House Association (or any successor organization thereto), made
payable to Seller's direct order.
13.3.2 Due Purchaser. In the event the net apportionments and
-------------
adjustments as provided in Section 13.1 result in a payment due Purchaser,
then such payment shall be made at Closing by way of a credit against the
Cash Balance.
13.4 Other. Except as otherwise provided in this Agreement, the customs
-----
regarding title closings, as recommended by The Real Estate Board of New
York, Inc., shall apply to all apportionments.
ARTICLE 14
CLOSING DOCUMENTS; OBLIGATIONS OF PURCHASER
-------------------------------------------
AND SELLER AT CLOSING
---------------------
14.1 Seller's Obligations at Closing. On the Closing Date, Seller shall
-------------------------------
deliver or cause to be delivered to Purchaser the following:
14.1.1 An Assignment of the Operating Sublease containing the
covenant required by Section 13 of the Lien Law in proper form for recording
(the "Assignment"), in the form annexed hereto as Exhibit 1.
14.1.2 A Xxxx of Sale in the form annexed hereto as Exhibit 2.
14.1.3 A letter to each Tenant advising them of the change of
ownership of the Property in accordance with General Obligations Law
Section 7-105, in the form of Exhibit 9 annexed hereto (the "Tenant Notice
Letter"), and Purchaser agrees to deliver the Tenant Notice Letter to each
Tenant promptly after the Closing. Purchaser hereby indemnifies and holds
Seller harmless from and against all loss, cost and expense incurred by
Seller as a result of Purchaser's failure to so deliver the Tenant Notice
Letter to each Tenant promptly after the Closing, and this sentence shall
survive the Closing.
14.1.4 An Assignment and Assumption of Service, Maintenance and
Concessionaire Agreements, in the form annexed hereto as Exhibit 3.
14.1.5 An Assignment and Assumption of Landlord's Interest in
Space Leases, in the form annexed hereto as Exhibit 4.
14.1.6 All current records within Seller's possession reasonably
required for the continued operation of the Property, including but not
limited to, service contracts, plans, surveys, Space Leases, lease files,
licenses, permits, warranties, guaranties, insurance policies assigned to
Purchaser at Closing, records of current expenditures for repairs and
maintenance, and the certificate of occupancy.
14.1.7 An Assignment of Licenses and/or Permits, in the form
annexed hereto as Exhibit 5.
14.1.8 An Assignment of Warranties and Guarantees, in the form
annexed hereto as Exhibit 6.
14.1.9 An Assignment and Assumption of the Brokerage Agreements
in the form annexed hereto as Exhibit 10.
14.1.10 All keys and combinations to locks at the Property which
are in Seller's possession.
14.1.11 A duly executed letter agreement by which Seller and
Purchaser agree to correct any errors in prorations as soon after the Closing
as amounts are finally determined, in the form annexed hereto as Exhibit 7
(the "Post-Closing Adjustment Letter").
14.1.12 Evidence reasonably acceptable to Purchaser and the Title
Company authorizing the consummation by Seller of the transaction
contemplated by this Agreement, and the execution and delivery of documents
on behalf of Seller.
14.1.13 The certificate with respect to FIRPTA compliance in the
form of Exhibit 8 annexed hereto.
14.1.14 The New York City Department of Finance Real Property
Transfer Tax Return (the "RPT Return") and the New York State Combined Real
Estate Transfer Tax Return and Credit Line Mortgage Certificate (the "Form
TP-584").
14.1.15 The Tenant Estoppel Statements required pursuant to
Section 10.4 hereof (and/or Seller's Estoppel Statements in lieu of one or
more such required Tenant Estoppel Statements).
14.1.16 The Lessor's Consent (i.e., NY Graybar L.P. Consent) and
Lessor's Estoppel Statement or Seller's Operating Sublease Estoppel Statement
required pursuant to Section 10.5 or 10.6 hereof.
14.1.17 The Associates Consent and the Metlife Consent required
pursuant to Section 10.6 hereof.
14.2 Purchaser's Obligations at Closing. Purchaser shall deliver or
----------------------------------
cause to be delivered to Seller on the Closing Date the following:
14.2.1 The Cash Balance.
14.2.2 Duplicate originals of the Assignment and Assumption of
Landlord's Interest in Space Leases, the Assignment and Assumption of
Service, Maintenance and Concessionaire Agreements, the Assignment and
Assumption of Brokerage Agreements, the Post-Closing Adjustment Letter, the
RPT Return, Form TP-584, the Tenant Notice Letters, and an Assumption of the
Operating Sublease in the form of Exhibit 11 annexed hereto, duly executed by
Purchaser, together with such other documents and instruments necessary to
assume the tenant's interest in the Operating Sublease.
14.2.3 Evidence reasonably acceptable to Seller and the Title
Company authorizing the consummation by Purchaser of the transaction which is
the subject of this Agreement, and the execution and delivery of documents on
behalf of Purchaser.
14.2.4 Such other documents as may be reasonably and customarily
required by the Title Company to consummate the transaction contemplated by
this Agreement.
ARTICLE 15
VIOLATIONS
----------
Without limiting the generality of the provisions of this Article 15,
Purchaser agrees to purchase the Property subject to any and all notes or
notices of violations of law, or municipal ordinances, orders or requirements
whatsoever noted in or issued by any federal, state, municipal or other
governmental department, agency or bureau, or any other Governmental
Authority having jurisdiction over the Property (collectively, "Violations"),
or any lien imposed in connection with any of the foregoing, or any condition
or state of repair or disrepair or other matter or thing, whether or not
noted, which, if noted, would result in a violation being placed on the
Property. Seller shall have no duty to remove or comply with or repair or
disrepair any condition, matter or thing, whether or not noted, which, if
noted, would result in a violation being placed on the Property. Seller
shall have no duty to remove or comply with or repair any of the
aforementioned Violations, liens or other conditions, and Purchaser shall
accept the Property subject to all such Violations and liens, the existence
of any conditions at the Property which would give rise to such Violations or
liens, if any, and any governmental claims arising from the existence of such
Violations and liens, in each case without any abatement of or credit against
the Purchase Price.
ARTICLE 16
SALES TAX
---------
Although it is not anticipated that any sales tax shall be due and
payable, Purchaser agrees that Purchaser shall pay any sales tax assessed in
connection with the sale of the Property to Purchaser and save, defend,
indemnify and hold Seller harmless from and against any and all liability for
any sales tax which may now or hereafter be imposed upon Seller or the
Property with respect to the sale of any personal property. The parties
hereto agree that no part of the Purchase Price is attributable to personal
property. The provisions of this Section shall survive the Closing.
ARTICLE 17
UNPAID TAXES
------------
17.1 The amount of any unpaid real estate taxes, assessments, water
charges and sewer rents other than items subject to proration as heretofore
provided, which Seller is obligated to pay and discharge may, at the option
of Seller, be allowed to Purchaser out of the Cash Balance, provided that
official bills therefor with interest and penalties thereon calculated to
said date are furnished by Seller at the Closing.
17.2 Seller may use any portion of the Cash Balance to satisfy any liens
or encumbrances which exist on the Closing Date which are not Permitted
Encumbrances, provided that Seller delivers to Purchaser at Closing
instruments in recordable form sufficient to satisfy such liens and
encumbrances of record, together with the cost of recording or filing said
instruments, or pay such sums or perform such acts as will enable the Title
Company to insure Purchaser that such lien(s) will not be collected out of
the Property, or deposit with Purchaser's attorneys reasonably sufficient
funds to enable Purchaser's attorneys to obtain and record such instruments.
17.3 The existence of (i) any taxes, assessments, water charges, or
sewer rents referred to in Section 17.1, or (ii) any other liens or
encumbrances, shall not be deemed Title Objections if Seller elects to
proceed pursuant to the provisions of Section 17.2, provided that Seller
complies with the requirements set forth in Sections 17.1 and 17.2 hereof.
17.4 If Seller requests within a reasonable time prior to the Closing
Date, Purchaser agrees to provide at the Closing separate certified checks or
official cashier's checks, which in the aggregate equal the amount of the
Cash Balance, in order to facilitate the satisfaction of any unpaid (and due)
real estate taxes, assessments, water charges or sewer rents, liens and/or
encumbrances referred to in Section 17.1, and, if Seller elects to proceed
pursuant to the provisions of Section 17.2, the payment of any liens and
encumbrances referred to therein.
ARTICLE 18
THE CLOSING
-----------
18.1 The Closing. The sale and purchase of the Property contemplated
-----------
by the terms and conditions of this Agreement shall be consummated at the
Closing.
18.1.1 Location and Date of Closing. Subject to the
----------------------------
satisfaction of the terms and conditions herein set forth, the Closing shall
take place at the offices of Seller's attorneys, Bachner, Tally, Xxxxxxx &
Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., on March
18, 1998 (the "Closing Date").
18.1.2 Delivery of Documents. At the Closing, the Assignment
---------------------
of the Ground Lease shall be delivered to the Purchaser upon Seller's receipt
of the payments provided for in Article 2, and the delivery of the documents
referred to in Section 14.2.
18.2 Time of Essence. Time shall be of the essence as to Purchaser's
---------------
obligations to close the purchase of the Property, pursuant to this
Agreement, on the Closing Date. For purposes of this Agreement, the term
"Business Day" shall mean all days except Saturdays, Sundays, and all days
observed by the Federal Government or New York State as legal holidays.
ARTICLE 19
NOTICES
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Except as otherwise provided in this Agreement, any and all notices,
elections, demands, requests and responses permitted or required to be given
pursuant to this Agreement shall be in writing, signed by the party giving
the same or by its attorneys, and shall be deemed to have been duly given and
effective upon being: (i) personally delivered with receipt for delivery; or
(ii) deposited with a nationally recognized express overnight delivery
service (e.g., Federal Express) for next Business Day delivery with receipt
for delivery; or (iii) deposited in the United States mail, postage prepaid,
certified with return receipt requested, to the other party at the address of
such other party set forth below, or at such other address within the
continental United States as may be designated by a notice of change of
address and given in accordance herewith. The time period in which a
response to any such notice, election, demand or request must be given shall
commence on the date of receipt thereof. Personal delivery to a party or to
any officer, partner, agent or employee of such party at said address shall
be deemed given and received at the time delivered. Rejection or other
refusal to accept, or inability to deliver because of changed address of
which no notice has been received, shall also constitute receipt. Any such
notice, election, demand, request or response shall be addressed to the
respective parties as follows:
(i) if to Seller, to:
c/o Helmsley Enterprises, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, III, Esq.
with a copy to:
Bachner, Tally, Xxxxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(ii) if to Purchaser, to:
Xxxxxxxx X. Xxxxxxx, Esq.
XX Xxxxx Realty Corp.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Greenberg, Traurig, Hoffman, Lipoff, Xxxxx & Quentel
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ARTICLE 20
DEFAULT
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20.1 Purchaser's Default. If Purchaser fails to accept title and pay
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the Cash Balance in accordance with this Agreement, the Deposit, together
with all interest accrued thereon, if any, shall be retained by Seller as
liquidated damages and as Seller's sole and exclusive remedy for Purchaser's
default, except as provided in the last sentence of this Section 20.1 as to
post-closing defaults by Purchaser only. The provisions herein contained for
liquidated and agreed upon damages are bona fide provisions for such and are
not a penalty, the parties agreeing that by reason of Seller binding itself
to the sale of the Property and by reason of the withdrawal of the Property
from sale at a time when other parties would be interested in acquiring the
Property, that Seller will sustain damages if Purchaser defaults, which
damages will be substantial but will not be capable of determination with
mathematical precision, and therefore, as aforesaid, this provision for
liquidated and agreed upon damages has been incorporated in this Agreement as
a provision beneficial to both parties. Notwithstanding the foregoing
provisions of this Section, there shall be no limitation on Purchaser's
liabilities or Seller's remedies with respect to any indemnities made by
Purchaser that are specifically stated herein to survive the termination of
this Agreement.
20.2 Seller's Default. Reference is hereby made to Sections 21.1 and
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21.2 hereof for Purchaser's exclusive remedies in the event of a breach of
representation or failure to perform any agreement set forth in this
Agreement on the part of Seller. If Seller shall default in the performance
of its obligations hereunder, whether or not Purchaser shall have elected to
accept title in accordance with the provisions of Section 5.2 hereof, then
Purchaser's sole remedy shall be either to (i) terminate this Agreement and
receive a refund of the Deposit together with any interest accrued thereon,
or (ii) bring an action for specific performance of Seller's obligations
under this Agreement, provided, however, that if Purchaser shall not have
commenced such action within a period of thirty (30) days following the date
scheduled for Closing hereunder, Purchaser shall be deemed to have waived its
right to proceed under this clause (ii) and shall be deemed instead to have
elected the remedy provided for in clause (i) of this sentence.
ARTICLE 21
CONDITIONS; SURVIVAL
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21.1 Conditions. (a) If Purchaser has actual knowledge, or should
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have actual knowledge by inspection of the Property or of the public records
at or before the Closing, that (i) any representation of Seller hereunder is
untrue, as of the date represented, or (ii) Seller has failed to perform,
observe or comply with any covenant, agreement or condition to be performed
hereunder, Purchaser shall notify Seller of such within five (5) days after
discovery by Purchaser. Purchaser's failure to so notify Seller shall be
deemed to constitute Purchaser's waiver of same as a condition to Closing and
otherwise.
(b) In the event that (A) any of Seller's representations made in
Section 3.1 are not true as of the date of this Agreement (and for the
purposes hereof a representation shall be untrue only if factually untrue and
having a material adverse business or legal impact on Purchaser), and
(B) Purchaser has actual knowledge, or should have actual knowledge by
inspection of the Property or of the public records at or before the Closing
that any of Seller's representations referred to in clause (A) of this
sentence are untrue, then Purchaser may, as its sole remedy (whether at law
or in equity), all other claims for damages or specific performances being
hereby expressly waived by Purchaser, elect to terminate this Agreement, and
the sole liability of Seller shall be to return to Purchaser the Deposit,
together with any interest accrued thereon, and thereupon, this Agreement
shall be null and void and the parties hereto shall be relieved of all
further obligations and liability under this Agreement, other than with
respect to those obligations and liabilities which expressly survive the
termination of this Agreement.
21.2 Survival. Except as specifically set forth to the contrary in this
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Agreement, none of the representations, warranties, covenants, indemnities,
agreements, obligations or commitments made by Seller in this Agreement shall
survive the Closing, the same being merged in the conveyance. If survival is
herein provided and no time specified, such matter or matters shall be the
basis for a claim against Seller only if asserted in writing within six (6)
months after the Closing Date.
ARTICLE 22
SUCCESSORS AND ASSIGNS
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22.1 Assignment. Neither this Agreement nor any of the rights of
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Purchaser hereunder (nor the benefits of such rights) may be assigned,
transferred or encumbered without Seller's prior written consent, which
consent may be granted or denied in Seller's sole and absolute discretion,
and any purported assignment, transfer or encumbrance without Seller's prior
written consent shall be void. Purchaser expressly covenants and agrees that:
(a) if Purchaser is a corporation, a sale or transfer (or the
granting of an option, put or call right with respect to a transfer) of more
than one percent (1%) (at any one time or, in the aggregate, from time to
time) of the shares of any class of the issued and outstanding stock of
Purchaser, its successors or assigns, or the issuance of additional shares of
any class of its stock to the extent of more than one percent (1%) (at any
one time or, in the aggregate, from time to time) of the number of shares of
said class of stock issued and outstanding on the date hereof, or
(b) if Purchaser is a partnership, joint venture or limited
liability company, a sale or transfer (or the granting of an option, put or
call right with respect to a transfer) of more than one percent (1%) (at any
one time or, in the aggregate, from time to time) of the partnership, joint
venture, membership or other unincorporated association interests of
Purchaser, its successors or assigns, or the issuance of additional
partnership, joint venture or member interests of any class to the extent of
more than one percent (1%) (at any one time or, in the aggregate, from time
to time) of the amount of partnership, joint venture or member interests
issued on the date hereof, shall, in any such case, constitute an assignment
of this Agreement. Unless, in each instance, the prior written consent of
Seller has been obtained, any such assignment shall constitute a material
default under this Agreement and shall entitle Seller to exercise all rights
and remedies under this Agreement, at law or equity, in the case of such a
default.
22.2 Affiliate. To enable Purchaser to assign its right to take title
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to the Property without a change in control or substantial change in equity
ownership, Seller shall not unreasonably withhold its consent to an
assignment of Purchaser's rights under this Agreement, concurrently with
Closing, to a general or limited partnership or limited liability company in
which the Purchaser named herein is the managing general partner or Manager,
and continues to own an equity interest in assignee that does not constitute
an assignment as described in Section 22.1(b) above. Any obligations of the
Purchaser may be performed by such assignee, and the Seller agrees to accept
such performance as if it were the performance of the Purchaser. No such
assignment shall modify the named Purchaser's obligations hereunder, reduce
or limit any liability of the named Purchaser or provide for a secondary
liability or surety obligation of the named Purchaser who shall remain
primarily liable notwithstanding any liability assumed by assignee. The
foregoing shall in no event cause liability on the part of Seller for failure
to consent and Purchaser or assignee's remedy shall be limited to specific
performance.
Notwithstanding anything to the contrary set forth above or elsewhere in
this Agreement, Purchaser shall have the right (subject to the provisions of
the next sentence), in Purchaser's sole discretion (and without the need or
any requirement for obtaining Seller's consent), to assign at Closing its
rights under this Agreement to any single purpose entity whose beneficial
interest is wholly owned by XX Xxxxx Operating Partnership, L.P.
Notwithstanding the provisions of the immediately preceding sentence, in the
event Purchaser intends to make such an assignment, no such assignment shall
be effective hereunder unless Purchaser notifies Seller of the fact that such
assignment has been or will be made not more than ten (10) days after
execution and delivery by Purchaser of this Agreement. In no event shall
Seller be requuments from any party other than Seller (as for example a
lessor consent) to accommodate such assignment.
ARTICLE 23
BROKERS
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23.1 Purchaser's Representation. Purchaser represents and warrants to
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Seller that it has not dealt with any broker, finder or consultant other
than Eastdil Realty Company, LLC (the "Broker"), in connection with the
transaction which is the subject of this Agreement, and that all negotiations
involving Purchaser with respect to the terms of this Agreement were
conducted by or through Broker. Purchaser further represents and warrants
that in the event any claim is made for a broker's, finder's or consultant's
commission or fee by anyone other than Broker as a result of any acts or
actions of Purchaser or its representatives with respect to the within
transaction, Purchaser, its heirs, successors and assigns do hereby agree to
indemnify and hold Seller harmless from any and all loss, liability, cost,
damage or expense with respect to such claims (including, without limitation,
reasonable attorneys' fees and disbursements) without any charge or cost to
Seller. Seller shall pay the brokerage commission to Broker in accordance
with Seller's agreement with Broker if and when title passes hereunder. This
Section shall survive the Closing or earlier termination of this Agreement.
ARTICLE 24
ESCROW
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The parties hereto have mutually requested that Bachner, Tally, Xxxxxxx
& Xxxxxx LLP act as escrow agent (the "Escrow Agent") for the purpose of
holding the Deposit in accordance with the terms of this Agreement and the
Escrow Letter executed by and among Seller, Purchaser and Escrow Agent
contemporaneously with the execution of this Agreement in the form of Exhibit
12 annexed hereto (the "Escrow Letter"). Purchaser recognizes that Escrow
Agent represents Seller herein and has agreed to act as Escrow Agent as an
accommodation to both parties hereto. Purchaser further acknowledges and
agrees that in the event of any dispute between the parties to this Agreement
or the Escrow Letter, Escrow Agent shall be free to continue its
representation of Seller with regard to these matters. The Deposit, together
with the interest accrued thereon, if any, shall be held by Escrow Agent
until the earlier of the Closing, or such time as Seller or Purchaser may be
entitled to a refund thereof in accordance with this Agreement. At such time
Escrow Agent shall remit said sum, together with any interest actually
accrued thereon, to the party entitled thereto in accordance with this
Agreement. At the Closing, the Deposit, together with any interest actually
accrued thereon, shall be paid to Seller. Escrow Agent shall have no
liability to Seller or Purchaser with respect to the amount of interest
earned on the Deposit while in escrow.
ARTICLE 25
MISCELLANEOUS
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25.1 Merger. This Agreement constitutes the entire understanding
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between the parties with respect to the transaction contemplated herein, and
all prior or contemporaneous oral agreements, understandings, representations
and statements, and all prior written agreements, understandings,
representations and statements are merged into this Agreement. Neither this
Agreement nor any provisions hereof may be modified, amended, discharged or
terminated except by an instrument in writing signed by the party against
which the enforcement of such modification, amendment, discharge or
termination is sought, and then only to the extent set forth in such
instrument. Unless otherwise provided herein, no provision of this Agreement
may be waived except by an instrument in writing signed by the party against
which the enforcement of such waiver is sought.
25.2 Headings. The Article, Section, Schedule and Exhibit headings
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used herein are for convenience only, and are not to be used in determining
the meaning of this Agreement or any part hereof.
25.3 Governing Law. This Agreement and its interpretation and
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enforcement shall be governed by the laws of the State of New York without
regard to conflict of law principles.
25.4 Jurisdiction. For the purposes of any suit, action or
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proceeding involving this Agreement, Seller and Purchaser hereby expressly
submit to the jurisdiction of all federal and state courts sitting in the
State of New York, and consent that any order, process, notice of motion or
other application to or by any such court, or a judge thereof, may be served
within or without such court's jurisdiction by registered mail or by personal
service, provided that a reasonable time for appearance is allowed, and
Seller and Purchaser agree that such courts shall have the exclusive
jurisdiction over any such suit, action or proceeding commenced by either or
both of said parties. In furtherance of such agreement, Seller and Purchaser
agree upon the request of the other party to discontinue (or agree to the
discontinuance of) any such suit, action or proceeding pending in any other
jurisdiction.
25.5 Waiver of Venue and Inconvenient Forum Claims. Seller and
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Purchaser hereby irrevocably waive any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or relating to this Agreement brought in any federal or state court sitting
in the State of New York, and hereby further irrevocably waive any claim that
any such suit, action or proceeding is brought in any inconvenient forum.
25.6 Waiver of Jury Trial. Each of the parties hereto waives,
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irrevocably and unconditionally, any and all right to trial by jury in any
action brought on, under, or by virtue of, or relating in any way to this
Agreement or the transactions contemplated hereby, or any of the documents
executed in connection herewith, the Property, or any claims, defenses,
rights of set-off or other actions pertaining hereto or to any of the
foregoing.
25.7 Successors and Assigns. This Agreement shall be binding on the
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successors and assigns of the parties hereto.
25.8 Invalid Provisions. If any term or provision of this Agreement,
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or any part of any term or provision, or the application thereof to any
person or circumstance shall to any extent be held invalid or unenforceable,
the remainder of this Agreement or the application of such term or provision
or remainder thereof to persons or circumstances other than those as to which
it is held invalid and unenforceable shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
25.9 Schedules and Exhibits. All Schedules and Exhibits which are
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annexed to this Agreement are a part of this Agreement and are incorporated
herein by reference.
25.10 No Other Parties. The provisions of this Agreement are for
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the sole benefit of the parties to this Agreement and their successors and
permitted assigns, and shall not give rise to any rights by or on behalf of
anyone other than such parties, and no party is intended to be a third party
beneficiary hereof. No provisions of this Agreement, or of any of the
documents and instruments executed in connection herewith, shall be construed
as creating in any person or entity other than Purchaser and Seller and their
permitted assigns any rights of any nature whatsoever.
25.11 Interpretation. This Agreement shall be construed without
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regard to any presumption or other rule requiring construction against the
party causing this Agreement to be drafted.
25.12 Counterparts; Faxed Signatures. This Agreement may be
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executed in multiple counterparts, each of which shall, when executed, be
deemed to be an original, and all of which when taken together shall
constitute but one agreement. Each party may rely upon a faxed counterpart
of this Agreement executed and delivered by the other party as if such
counterpart were an original counterpart.
25.13 Binding Effect. This Agreement shall not become a binding
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obligation upon Seller until the same has been fully executed by Purchaser
and Seller, and until a fully executed original counterpart thereof has been
delivered by Seller to Purchaser.
25.14 Recordation. Neither this Agreement, nor any other
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document related hereto, nor any memorandum thereof shall be recorded, and
any such recording shall be void and of no force or effect.
25.15 Litigation Fees. In the event that any litigation arises
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under this Agreement, the prevailing party (which term shall mean the party
which obtains substantially all of the relief sought by such party) shall be
entitled to recover, as a part of its judgment, reasonable attorneys' fees.
25.16 Title Omissions. Any and all of the title matters which
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Purchaser shall take title to the Property subject to, as specified in this
Agreement, may be omitted by Seller in the Assignment of the Ground Lease to
be delivered to Purchaser at the Closing, provided, however, that all such
provisions so omitted shall not be in violation of any covenants contained in
the Assignment of the Ground Lease.
25.17 Defined Terms. The references to defined terms used in
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this Agreement are listed in the Section of this Agreement entitled "Defined
Terms."
25.18 Singular/Plural. The use of the singular shall be deemed
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to include the plural, and vice versa, whenever the context so requires.
ARTICLE 26
AFFILIATED PURCHASE AGREEMENT
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26.1 Affiliate Purchaser. Purchaser or an Affiliate of Purchaser (as
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hereinafter defined) is concurrently entering into agreements to purchase one
or more properties from Seller or an Affiliate of Seller (as hereinafter
defined). As used herein, the term "Affiliate of Purchaser" shall mean any
entity or person under the control of, controlled by or under common control
with Purchaser. As used herein, the term "Affiliate of Seller" shall mean
any entity or person under the control of, controlled by or under common
control with Seller.
26.2 Affiliate Properties. The properties that Purchaser or an
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Affiliate of Purchaser and Seller or an Affiliate of Seller have entered into
agreements to sell are:
(i) 0000 Xxxxxxxx, Xxx Xxxx, X.X.; and
(ii) 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. or a leasehold estate
therein (collectively "Affiliate Properties").
26.3 Rights on Purchaser Default. If Purchaser or an Affiliate of
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Purchaser has entered into an agreement of sale and purchase with Seller or
an Affiliate of Seller pursuant to which Purchaser or an Affiliate of
Purchaser has agreed to purchase one or more Affiliate Properties (an
"Affiliate Contract"), and if Purchaser or Affiliate of Purchaser shall
default under the Affiliate Contract, or if for any other reason (other than
Seller or Affiliate of Seller's default) Purchaser or Affiliate of Purchaser
fails to acquire the property to be conveyed thereunder pursuant to the terms
thereof, or in the event Purchaser defaults under the Affiliate Contract or
otherwise is responsible without just cause for a delay of the closing under
the Affiliate Contract, then and in such event Seller, shall have the
following rights, which it may exercise in its sole and absolute discretion
without prior notice, at any time up to and including the completion of the
Closing (under this Agreement):
26.3.1 Seller may elect to terminate this Agreement (i) with the same
effect as if it were terminated for Purchaser's default
hereunder if the reason for Purchaser's failure to close under
the Affiliate Contract is Purchaser's or Affiliate of
Purchaser's default thereunder, or (ii) with the same effect
as if it were terminated pursuant to Section 11.1.1 hereof, if
the reason for Purchaser's or Affiliate of Purchaser's failure
to close under the Affiliate Contract is other than
Purchaser's Default thereunder; or
26.3.2 In the event Seller does not elect to terminate this Agreement
pursuant to subsection 26.3.1, or if Purchaser defaults under
the Affiliate Contract or otherwise is responsible without
just cause for a delay of the closing under the Affiliate
Contract, Seller may elect to adjourn the Closing hereunder to
a date which will be concurrent with any date to which the
closing under the Affiliate Contract may have been adjourned
so as to coordinate both closings; or
26.3.3 Seller may elect to proceed with the Closing (hereunder),
notwithstanding that the closing under the Affiliate Contract
has not occurred or may not thereafter occur.
26.4 From the date hereof and continuing through the period which is six
(6) months following the Closing, Seller shall make available to Ernst &
Young (as agent for Purchaser) at the offices of Seller or Seller's agent all
of the books and records with respect to the operation of the Property with
respect to calendar year 1997 and that portion of calendar year 1998
preceding any such investigation or audit during normal business hours.
During such period, Ernst & Young, at Purchaser's sole cost and expense, may
inspect and audit such books and records with respect to calendar year 1997
(and portion of 1998) and, in this regard, Seller shall cooperate (at no cost
to Seller) with Purchaser in Purchaser's inspection and audit.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
of Sale and Purchase as of the date first above written.
GRAYBAR BUILDING COMPANY,
a New York general partnership
By: 9179 Equities Associates,
a New York general partnership
By:___________________________
Xxxxx X. Helmsley
General Partner
XX XXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: XX XXXXX REALTY CORP.,
a Maryland corporation, its general
partner
By:___________________________
Name:
Title:
