EXHIBIT 2.1
AGREEMENT
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THIS AGREEMENT, made as of the 18th day of August, 1997, by and
between BANKERS TRUST COMPANY, a New York banking corporation, having an office
at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Seller") and BOSTON PROPERTIES
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LIMITED PARTNERSHIP, a limited partnership formed under the laws of the State of
Delaware, having an office at c/o Boston Properties, Inc., 0 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("Purchaser") and, for the purpose of Sections
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5.1.7, 5.1.8, 7.6 through 7.10, 16, and 23.7 only of this Agreement, BOSTON
PROPERTIES, INC., a Delaware corporation and the sole general partner of
Purchaser, having an office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("Company").
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W I T N E S S E T H :
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Seller desires to sell, transfer and convey the land with the
buildings and improvements thereon and all easements and other appurtenances
thereto in the City, County and State of New York, more particularly described
in Exhibit A attached hereto and made a part hereof, commonly known and
designated as 000 Xxxx Xxxxxx (the "Premises"; a schedule listing the definition
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of this and other defined terms used in this Agreement is set forth in Schedule
A attached hereto) to Purchaser and Purchaser desires to purchase and acquire
the Premises from Seller on the terms, covenants and conditions hereinafter set
forth.
NOW, THEREFORE, for and in consideration of these presents and of the
mutual covenants and agreements herein contained, Seller and Purchaser hereby
agree as follows:
1. Transaction.
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1.1. Seller agrees to sell, transfer and convey the Premises to
Purchaser, and Purchaser agrees to purchase and acquire the Premises from
Seller, upon and subject to all of the terms and conditions of this Agreement.
1.2. This sale includes all and any right, title and interest, if any,
of Seller in and to any land lying in the bed of any street, road or avenue
opened or proposed, in front of or adjoining the Premises, to the
center line thereof and all strips and gores adjoining the Premises or any part
thereof.
1.3. There shall be included in the sale:
1.3.1. All of Seller's right, title and interest in and to any
easements, declarations, agreements or instruments affecting or in any way
connected to or benefitting the Premises described in Exhibit B attached hereto
(the "Premises Agreements").
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1.3.2. All of Seller's right, title and interest in and to (a)
all leases, tenancies and occupancies for any part of the Premises as set forth
on Exhibit C attached hereto and made a part hereof (copies of which Purchaser
acknowledges having examined), excluding (x) subleases and suboccupancies and
(y) the Bankers Lease referred to in Article 11 hereof (the "Space Leases"), and
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(b) all other leases, tenancies and occupancies, excluding subleases and
subtenancies, which are hereafter entered into in accordance with Article 10 of
this Agreement, (i.e., the "New Leases"), and (c) all subleases and subtenancies
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including, without limitation, those set forth in Exhibit C-l attached hereto
(such subleases and subtenancies as are listed on Exhibit C-l being those
consented to in writing by Seller, or based on a thorough review of Seller's
records, known by Seller to exist), and (d) the Bankers Lease, in each case from
and after the Closing Date, and the unapplied security deposits and accrued and
undistributed interest thereon and advance Rents (as defined in Section 6.5.1)
in respect of any period subsequent to the Closing Date paid by the tenants
thereunder which are in Seller's possession or control on the Closing Date,
except to the extent applied by Seller by reason of default by any tenant under
its Space Lease (the "Security Deposits").
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1.3.3. All of Seller's right, title and interest, if any, in all
certificates of occupancy, boiler, burner and like transferable licenses,
approvals and permits for the use and operation of the Premises, including,
without limitation, those set forth on Exhibit D attached hereto and made a part
hereof.
1.3.4. All of Seller's right, title and interest, if any, in all
transferable warranties and guarantees of manufacturers, contractors,
materialmen and mechanics who may have furnished labor and/or materials to the
Premises, including, without limitation, those set forth on Exhibit E attached
hereto and made a part hereof; provided, however, without limiting Purchaser's
rights to fully enforce any such warranties and guaranties, should Seller have
any existing monetary claim with respect to any such warranty or guarantee,
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Seller may assert such monetary claim and thereby enforce Seller's rights under
such warranty or guarantee, at Seller's cost and expense and Seller may retain
any awards, judgments or settlements arising from the assertion of any such
claim, provided that Seller shall not thereby adversely affect or impair the
rights as to future claims under such warranties and guaranties to be assigned
to Purchaser by Seller pursuant hereto. This provision shall survive delivery
of the deed.
1.3.5. All of Seller's right, title and interest in and to the
equipment and fixtures used exclusively in connection with the operation and
maintenance of the Premises, but excluding therefrom all of the personal
property and trade fixtures owned or leased (a) by tenants or subtenants under
the Space Leases, or under the Bankers Lease or (b) by Seller in the conduct of
its business or the business of any of its Affiliates at the Premises, or (c) by
the managing agent of the Premises or (d) by any of the parties, other than
Seller or the managing agent, to the Service Contracts (as defined in Section
1.3.7) or (e) by Seller and located in the Premises building management office;
but which shall include, without limitation, the items listed on Exhibit F
attached hereto or equivalent replacements thereof except to the extent that
such items are depleted in the ordinary course of Seller's operation of the
Premises (the "Equipment").
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1.3.6. All of Seller's right, title and interest, if any, in and
to the building plans and specifications and site plans in Seller's possession
or control for the Premises, together with all of Seller's right, title and
interest, if any, in and to all building and other governmental permits for the
construction of the Premises.
1.3.7. All of Seller's right, title and interest in and to the
contracts and agreements of which Seller or its managing agent is party relating
to the maintenance or operation of the Premises, other than any management
agreement, and in and to any leases of Equipment (identified as leased Equipment
on Exhibit F attached hereto), which are in effect on the Closing Date and which
are either listed on Exhibit G attached hereto or are entered into by Seller
after the date hereof in accordance with the provisions of Article 10 of this
Agreement, to the extent transferrable by their terms (the "Service Contracts").
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1.3.8. All of Seller's right, title and interest, if any, to use
and occupancy of vaults, if any, under the sidewalks or streets abutting the
Premises and Purchaser shall take subject to all license fees and
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charges heretofore or hereafter imposed by any governmental authority having
jurisdiction in the matter (subject to apportionment between the parties as
provided in Section 6.1 hereof) for the use or maintenance of such vault.
Seller makes no representations with respect to the continued use or maintenance
of any such vault or that a license or permit for the maintenance or use thereof
has been obtained.
1.4. This sale does not include any service xxxx, trademark,
copyright, license or other interest in or right to the use of the name "Bankers
Trust" or "Bankers Trust Building", or any variations thereof. Purchaser
understands that the Premises are commonly known as or identified as the
'1Bankers Trust Building" by reason of the occupancy by Bankers Trust Company of
very substantial portions thereof from the construction thereof. By reason
thereof, in its management and ownership of the Premises, Bankers Trust Company
has restricted the use of the name "Bankers Trust Company" by other tenants and
occupants, has maintained that name as the sole distinctive name of the
Premises, has restricted the placement at the Premises of any signs, symbols or
identifying or distinctive materials containing the name or logo of the
competitors of Bankers Trust Company, and has restricted the leasing to
competitors of Bankers Trust Company by it and its tenants of space in the
Premises. Restrictions of this nature which are contained in provisions of the
Initial Bankers Lease (referred to in Section 11.1 hereof) are indicative of
such practices. The occupancy by Bankers Trust Company shall continue after the
delivery of the deed, pursuant to the Bankers Lease, which amends and replaces
in its entirety the Initial Bankers Lease (and removes such provisions
therefrom). Accordingly, Seller and Purchaser agree as follows:
1.4.1. Purchaser recognizes that the Premises may be known as
the "Bankers Trust Building" and that Seller has a strong interest in
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maintaining the integrity of such name. It is therefore understood and agreed
that Seller, and any successor or affiliated entities, shall have the sole and
exclusive right to use the name "Bankers Trust Building" and any variations
thereof. Purchaser shall not use the name "Bankers Trust" or any variations
thereof in any advertising or promotional material, in connection with the
Premises, except in the circumstance where, as permitted by Section 1.4.3(a)
hereof, Purchaser has elected to name the Premises the "Bankers Trust Building",
or otherwise only upon the prior written authorization of Seller.
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1.4.2. Purchaser further covenants and agrees that a provision
expressly prohibiting any tenant under a lease of space of the Premises, other
than Seller and any of its successors or Affiliates, from using the name
"Bankers Trust" and any variations thereof, will be inserted in all leases of
space in the Premises made after the Closing Date, and which prohibition shall
be expressly stated to be for the benefit of Seller and enforceable by Seller,
provided, however, for as long as the Premises are known as the "Bankers Trust
Building", such lease may provide that Tenant may use such name in its
letterhead for the purpose of address identification only, and then only in a
manner which will maintain the first-class nature and character of such name,
but will not state or imply any other connection or association with Bankers
Trust Company or its Affiliates and will not use such name in a type face or
style now or hereafter used by Bankers Trust Company as a part of its corporate
identity. Purchaser shall cooperate in all reasonable respects, at the cost of
Seller, with Seller in the enforcement of such prohibition, or any similar
prohibition in any Space Lease or New Lease or which is binding on any subtenant
pursuant to any sublease thereunder, provided that Seller's sole remedy against
such tenant or subtenant shall be limited to injunctive relief but, if Seller
cannot timely obtain such injunction to avoid incurring damages, after having
promptly commenced and prosecuted its claim for injunctive relief with all due
diligence, then, but only then, Seller may recover its actual (but not
consequential, special or punitive) damages against such tenant or subtenant.
1.4.3. From and after the Closing, for so long as the Seller or
any Affiliate thereof is the Tenant under the Bankers Lease, Purchaser shall
after the Closing have the right to use as the distinctive name of the Premises
(a) the "Bankers Trust Building" until notified in writing by Seller to no
longer use as the distinctive name of the Premises the "Bankers Trust Building",
or (b) "Boston Properties Plaza" or any variation thereof or (c) any other name,
provided such name is not that of (i) a Competitor at the time of such naming or
such earlier date as Purchaser had agreed to the naming of the Premises,
including any designation by which such Competitor is commonly known, or (ii) a
tenant occupying less than 100,000 rentable square feet of space in the Premises
at the time of such naming, or (d) the street address of the Premises, or (e)
the name of any other tenant of the Premises, except for any name referred to in
clause (a), if such other tenant is both (i) not a Competitor at the time of
such naming or such earlier date as Purchaser had agreed to the naming of the
Premises, including any designation by which such
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Competitor is commonly known, and (ii) the occupant of more than 100,000
rentable square feet of space in Premises at the time of such naming. If so
notified by Seller pursuant to clause (a) of this Section 1.4.3, Purchaser shall
cease use of the name "Bankers Trust Building" as the distinctive name of the
Premises within two (2) months after Purchaser's receipt of Seller's notice to
such effect, provided however, if (A) Purchaser has failed to observe or perform
any of the terms and provisions of this Section 1.4.3, then such change shall be
made within ten (10) business days after Purchaser's receipt of Seller's notice,
or (B) in Seller's reasonable judgment Purchaser has not owned, operated or
marketed the Premises in a manner befitting that of a building named the
"Bankers Trust Building", then such change shall be made within thirty (30) days
after Purchaser's receipt of Seller's notice, provided further, however,
Purchaser shall, in any event, immediately cease to use such name in newspaper,
radio, television and similar advertising media, and shall discontinue use of
brochures and other informational and promotional materials utilizing the name
"Bankers Trust" immediately, in case clause (A) above shall be applicable or
otherwise when its then current supply is exhausted but within such respective
applicable period. Within each such respective applicable period, Purchaser
shall discontinue all such use of the name "Bankers Trust" or any variations
thereof pursuant to this Section 1.4.3.
1.4.4. For so long as the Seller or any Affiliate thereof is
separately or collectively the Tenant under the Bankers Lease, Purchaser shall
not after the Closing place any signs, symbols or identifying or distinctive
materials containing the name or logo (or other like identification) ("Signage")
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at the exterior or on any exterior wall of the Premises or in the East Building
or West Building lobbies of or West Building entrances to the Premises or any
wall thereof except Signage (a) using the name Boston Properties or any
variation thereof, or (b) using the street address of the Premises, or (c) of
another tenant, which (i) other than the presently existing Signage using the
street address and Retail Signage, is not larger than any of the Original Seller
Signage, and (ii) other than the presently existing Signage using the street
address and Retail Signage, is consistent with the prominence of the Original
Seller Signage and (iii) other than the presently existing Signage using the
street address is consistent with the class and character of the Original Seller
Signage and of the Premises and (iv) is not that of a Competitor, including any
designation by which such Competitor is commonly known, at the time such Signage
was placed or such earlier date as Purchaser had agreed to the placement of such
Signage and (v) if the Signage
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of another tenant, such tenant is the occupant of (y) retail space on the ground
floor of the Premises being used as a restaurant, cafeteria or like purpose, or
general retail space for the sale and delivery to customers at such space of
goods, products or materials principally merchandized or kept in such space
(such signage of such retail space, "Retail Signage") and such Retail Signage is
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in close proximity to such retail space on the 00xx Xxxxxx side of the Premises
on the East Building portion of the Premises or on the 00xx Xxxxxx or 00xx
Xxxxxx side of the Premises on the West Building portion of the Premises, or (z)
more than 100,000 rentable square feet of space in the Premises at the time of
such placing of Signage; provided, however, notwithstanding anything to the
contrary hereinabove contained, (A) no Signage, other than Original Seller
Signage, shall be placed at the marble exterior wall on the Park Avenue side of
the Premises south of the main entrance or on the marble exterior wall on the
00xx Xxxxxx side of the Premises, and (B) no Retail Signage shall be placed on
the Park Avenue side of the Premises or on the 00xx Xxxxxx side of the Premises
on the East Building portion of the Premises.
1.4.5. From and after the Closing and for so long as the Seller
or any Affiliate thereof is in actual occupancy of at least 20,000 rentable
square feet of the Premises, the Purchaser, its successors and assigns, shall
not after the Closing (a) enter into a lease of any space in the Premises to a
Competitor or (b) enter into a lease of any space in the Premises without
including a provision in a form and content substantially similar to the
restriction contained in Exhibit S attached hereto which expressly restricts any
tenant (other than Seller and any of its Affiliates as Tenant under the Bankers
Lease) from any such assignment of lease or subletting to a Competitor, which
restriction shall be expressly stated to be for the benefit of Seller and
enforceable by Seller or (c) consent to the subletting of space under or
assignment of any such lease of space to a Competitor except in accordance with
such restriction or (d) to the extent a similar such restriction is contained in
any Space Lease or New Lease, consent to the subletting of space under or
assignment of any such Space Lease or New Lease, to a Competitor if, in each
such case, such tenant, assignee or subtenant was a Competitor at the time such
lease was made or at the time Purchaser consented to such assignment or
subletting. Purchaser agrees to use reasonable commercial efforts to enforce the
provisions of this Section against the tenant under any such lease which
contains such restriction or a similar restriction, but Purchaser shall, in any
event, furnish the list of Competitors referred to below as Exhibit P, promptly
after Purchaser's receipt from
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Seller, to each such tenant whose lease contains a comparable provision for
restriction upon assignment or subletting based upon a list of Competitors of
Seller. Purchaser agrees to cooperate in all reasonable respects, at the cost of
Seller, with Seller in the enforcement of such restriction, or any similar
restriction in any Space Lease or New Lease, provided that Seller's sole remedy
against such tenant shall be limited to injunctive relief but, if Seller cannot
timely obtain such injunction to avoid incurring damages after having promptly
commenced and prosecuted its claim for injunctive relief with all due diligence,
then, but only then, Seller may recover its actual (but not consequential,
special or punitive) damages against such tenant. Anything expressly or
impliedly contained in this Section 1.4.5 to the contrary notwithstanding, none
of the preceding provisions will ever be interpreted or construed as a
restriction on Purchaser, its successors and assigns, from granting its consent
to the subletting of space under or assignment of any Space Lease existing on
the date hereof where no restriction substantially similar to the restriction
contained in this Section 1.4.5 has been included in any such pre-existing Space
Lease.
1.4.6. The following terms have the following meanings for
purposes of Sections 1.4.3 through 1.4.5:
(a) A "Competitor", shall mean for purposes of Sections
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1.4.3 through 1.4.5, an entity whose name is contained on any currently
effective list of "Competitors" pursuant to this Section 1.4.6, subject to the
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following provisions hereof. The initial list of Competitors is attached as
Exhibit P hereto and such list shall be effective unless it is replaced with a
new list, or modification thereto, provided by Seller to Purchaser, which may be
provided no more often than once in any eighteen (18) month period, subject to
the provisions of this Section 1.4.6, and which shall then constitute Exhibit P,
which shall contain no more than sixteen (16) names of Competitors, and each
such successive list shall be effective and be replaced as hereinabove provided.
In no event shall the foregoing restrictions apply to, nor shall Purchaser be
responsible for, the addition of any entity to a list of Competitors provided by
Seller after Purchaser has agreed to name the Premises for or install signage of
such Competitor, as to Sections 1.4.3 or 1.4.4, or has leased any space or
consented to an assignment of lease or a sublet to such Competitor as to Section
1.4.5. An entity shall not hereafter be included on a list of Competitors
constituting Exhibit P unless in the reasonable judgment of Seller it is a
competitor of Seller.
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(b) "Seller" and "Purchaser" shall mean the Seller and
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Purchaser, respectively, originally named in this Agreement and, except as
limited by the provisions of the next sentence, their respective successors and
assigns, including, as to Purchaser, any successor owner of the Premises. For
the purposes of Section 1.4.3 through 1.4.6(a), reference to "successors and
assigns" of Seller in this Section 1.4.6(b) shall mean and be limited to (i) a
corporation or business entity (herein called a "successor") into which or with
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which Seller shall be merged or consolidated, or to which substantially all or a
substantial part (which part shall include the name "Bankers Trust Company") of
Seller's assets may be transferred, by operation of law or appropriate
instruments of merger, consolidation or transfer, provided that the successor
shall have assumed, among other obligations and liabilities, all of Tenant's
obligations and liabilities under the Bankers Lease, or (ii) an assignment of
the Bankers Lease pursuant to a "Controlling Equity Transfer" (as defined in
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Article 10 of the Bankers Lease), provided that the principal purpose of any
such assignment is not the acquisition of the tenant's interest in the Bankers
Lease, or (iii) an Affiliate of Seller.
(c) "Affiliate" of any entity shall mean any other
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entity or person which shall (i) control, (ii) be under the control of or (iii)
be under common control with such entity (the term "control" as used herein
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shall be deemed to mean either (A) ownership (direct or indirect) of more than
fifty percent (50%) of the outstanding voting stock of a corporation, or other
majority equity and control interest if such entity is not a corporation), or
(B) ownership (direct or indirect) of not less than twenty-five percent (25%) of
such stock or other equity interest and the power to direct the affairs of such
corporation or other entity by reason of ownership of voting stock or other
equity interest, by contract or otherwise.
(d) "Original Seller Signage" shall mean (i) the present
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exterior signage at the marble exterior wall on the 00xx Xxxxxx side of the
Premises near the Park Avenue side of the Premises and (ii) the present exterior
signage at the marble exterior wall on the Park Avenue side of the Premises
south of the entrance to the Premises and (iii) the present exterior signage on
the exterior wall at the entrance to the Premises at 00xx Xxxxxx and (iv) the
Lobby Signage (as such term is defined in the Bankers Lease), in each case,
containing the name "Bankers Trust" or a logo or identification of Bankers Trust
Company (its successors and assigns and/or Affiliates), as the same may be
moved, changed or removed pursuant to the provisions of the
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Bankers Lease.
1.4.7. Without limiting any of Seller's other rights and
remedies set forth in Section 12.8 hereof, Seller shall be entitled to specific
performance, injunctive or other equitable relief in the event of breach by
Purchaser, or any of its servants, agents or employees of Purchaser's
obligations under this Section 1.4, provided, however, that Seller shall not
claim against Purchaser, and Purchaser shall incur no liability for damages, in
the event of any such breach by Purchaser other than for Seller's actual damages
up to but not in excess of Five Million ($5,000,000.00) Dollars for each such
separate breach, except that in the event the covenants in Section 1.4.3 or
Section 1.4.4 are breached by Purchaser, there may be included within the
applicable Five Million ($5,000,000.00) limitation upon damages up to but not in
excess of Seller's actual consequential damages in an amount of up to Five
Hundred Thousand ($500,000.00) of such consequential damages. In no event,
however, may Seller recover punitive or other damages, statutory or otherwise,
for any such breach by Purchaser of the covenants in this Section 1.4. Nothing
herein shall be deemed to relieve Purchaser of any obligation to terminate any
lease entered into by Purchaser or remove any Signage placed on or in the
Premises in breach of the provisions of Section 1.4.4 or Section 1.4.5. For
purposes of Purchaser's liability for damages provided for in this Section
1.4.7, Purchaser shall not be deemed in breach of such covenants until Purchaser
shall fail to observe or perform such terms and provisions of this Section 1.4,
and such failure shall continue for twelve (12) business days after receipt of
notice of such failure from Seller. Without limiting Seller's rights to damages
as heretofore provided in this Section 1.4.7, Seller may, before or after such
twelve (12) business day period, seek and/or obtain specific performance,
injunctive or other equitable relief in the event of failure or breach by
Purchaser of Purchaser's obligations under this Section 1.4.
1.4.8. Purchaser agrees, for itself and its successors and
assigns, that the foregoing provisions are reasonable, that to the extent such
provisions may limit or restrict Purchaser's future use or operation of the
Premises, Purchaser was aware of same when it elected to purchase the Premises,
and to the extent such provisions may affect the Purchaser economically in its
future use or operation of the Premises it took same into account in its
determination of the price it wished to pay for the purchase of the Premises.
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1.4.9. The covenants and agreements set forth in this Section
1.4 shall survive delivery of the deed and shall be binding upon the successors
and assigns of Purchaser and the successors and assigns of Seller (as defined in
Section 1.4.6(b)).
2. Closing.
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The closing ("Closing") of the transactions contemplated hereby shall
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take place on September 5, 1997, as such date may be extended pursuant to the
terms of this Agreement or accelerated upon the mutual written agreement of
Seller and Purchaser (the "Closing Date"), at the offices of Moses & Singer LLP,
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1301 Avenue of the Americas, New York, New York or, at Purchaser's election, at
other offices as have been designated by Purchaser in writing to Seller at least
three (3) business days prior to the Closing in the Borough of Manhattan, at
10:00 A.M. o'clock in the forenoon, or at such other place and time of day as
may be agreed upon in writing by Seller and Purchaser ("Closing Date").
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3. PURCHASE PRICE AND MANNER OF PAYMENT.
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3.1. The purchase price is Three Hundred Twenty One Million Two
Hundred Fifty Thousand and 00/100 ($321,250,000.00) Dollars (the "Purchase
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Price"), payable as follows:
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3.1.1. Ten Million and 00/100 ($10,000,000.00) Dollars of the
Purchase Price on signing this Agreement, by wire transfer to an account
designated by Seller in immediately available federal funds, receipt whereof is
hereby acknowledged.
3.1.2. Three Hundred Eleven Million Two Hundred Fifty Thousand
and 00/100 ($311,250,000.00) Dollars, plus or minus net adjustments and
prorations provided for in Article 6 of this Agreement, at the Closing payable
by wire transfer (to an account designated by Seller at or prior to Closing) in
immediately available federal funds; provided, however, that uncertified checks
of the Purchaser payable to the order of Seller or its designees for an
aggregate amount up to $100,000 shall (subject to collection) be acceptable for
any adjustments payable to Seller at the Closing.
3.2. The amount of any past due unpaid taxes, assessments, business
improvement district charges, public assembly charges, water charges and sewer
rents which Seller is obligated to pay and discharge, with the interest and
penalties thereon to a date not earlier than that required by the title company
insuring Purchaser's
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title to the Premises, may at the option of Seller be allowed to Purchaser out
of the balance of the Purchase Price, provided official bills therefor with
interest and penalties thereon figured to said date are furnished by Seller at
the closing. The existence of any such taxes shall not be deemed objections to
title if Seller shall comply with the foregoing requirements.
3.3. If on the date of Closing there are any other liens or
encumbrances on the Premises other than those to which Purchaser's title is to
be subject hereunder, Seller may use any portion of the balance of the Purchase
Price to satisfy the same, provided Seller shall simultaneously either (a)
deliver to Purchaser at the Closing of title instruments in recordable form and
sufficient to satisfy such liens and encumbrances of record, together with the
cost of recording or filing said instruments or, (b) provided that Seller has
made arrangements with the title company employed by Purchaser in advance of
Closing, deposit with said title company sufficient monies, acceptable to and
required by it, to assure the obtaining and the recording of such satisfactions
and the issuance of title insurance to Purchaser free of any such liens and
encumbrances. Purchaser, if request is made within a reasonable time prior to
the Closing Date, agrees to provide at the Closing separate payments of
immediately available federal funds or separate certified checks, as requested
by Seller, aggregating the amount of the balance of the Purchase Price, to
facilitate the satisfaction of any such liens or encumbrances. The existence of
any such other liens and encumbrances shall not be deemed objections to title if
Seller shall comply with the foregoing requirements.
3.4. For purposes hereof, a check (certified or uncertified) of
Purchaser shall mean a check drawn by the grantee named in the deed to be
delivered upon such Closing drawn upon a bank which is a member of the New York
Clearing House Association, Inc. or Bank of Boston, N.A. payable directly to the
order of Seller or the designee of Seller. In lieu of any such check, Purchaser
may at its option deliver a bank check.
3.5. For purposes of this Agreement a "bank check" shall mean an
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official check of Bank of Boston, N.A. or of any bank which is a member of the
New York Clearing House Association, Inc. drawn directly to the order of Seller
or its designee, provided that the name of no third party shall appear upon such
official check.
3.6. The sums deposited with the Seller pursuant to Section 3.1.1
shall be invested by the Seller in an account at Bankers Trust Company (bearing
interest at the day-to-day savings rate). Whether or not the
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Closing shall occur hereunder, the party, whether Seller or Purchaser, entitled
to receive the sums deposited with the Seller pursuant to Section 3.1.1 shall
also be entitled to receive, and Seller shall deliver to such person, either it
or the Purchaser, all interest earned on such sums in accordance with the
provisions of the preceding sentence. The party receiving such sums and
interest shall pay any income taxes on such interest. Each party's taxpayer
identification number is set forth after the signature of such party at the end
of this Agreement. Any such interest shall not be deemed to be a credit to
Purchaser against the Purchase Price.
4. Deliveries on Behalf of Seller
------------------------------
4.1. At the Closing, and as a condition to Purchaser's obligation to
purchase the Premises and pay the Purchase Price, Seller will duly execute,
acknowledge (where appropriate) and/or deliver to Purchaser, in form attached
hereto but when no such form is attached hereto or provided for herein, in the
form acceptable to Purchaser in its reasonable discretion, the following:
4.1.1. A bargain and sale deed to the Premises, without
covenants against grantor's acts, in the form of Exhibit I attached hereto (the
"deed") and duly executed and acknowledged so as to convey to Purchaser the fee
simple of the Premises, free from all encumbrances, except as herein stated.
4.1.2. A xxxx of sale of the Equipment (with no value separate
from the real estate, except as provided in Section 6.1.8) in the form of
Exhibit J attached hereto.
4.1.3. The landlord's executed counterparts (or, where
originals are unavailable, copies thereof certified by Seller) of all Space
Leases, New Leases, the Bankers Lease and Service Contracts (which shall be made
available to Purchaser at Seller's address first set forth above).
4.1.4. An assignment of (a) the Space Leases and New Leases,
(b) to the extent assignable, the Service Contracts, (c) the Premises Agreements
and (d) the Bankers Lease and all of Seller's right, title and interest
thereunder from and after the Closing Date in the form of Exhibits K and K-1
annexed hereto and made a part hereof, including an agreement indemnifying and
holding harmless Purchaser against claims and/or liability for the (A) payment
or performance of Landlord Contributions or Landlord Work (as such terms are
defined in Section 8.7.5) excluding (x) Landlord Contributions or Landlord Work
listed in Exhibit C to be assumed by
-13-
Purchaser and (y) in respect of New Leases, and (B) Commissions (as defined in
Section 8.8 hereof) due up to (and including) the date of the Closing excluding
(i) Commissions listed in Exhibit C as Initial Commissions (as defined in
Section 8.8) to be assumed by Purchaser, and (ii) Future Commissions (as defined
in Section 8.8) (iii) Commissions on New Leases, if any, and (iv) Commissions
with respect to leases entered into by Purchaser after the Closing Date with
tenants with whom Seller or Seller's agent, as of the Closing Date, was
negotiating to lease space in the Premises, and for the payment of which
Commissions Seller would be legally obligated (if Seller had signed the lease),
provided that, at the Closing, Seller identifies in a writing delivered to
Purchaser all such lease negotiations for space in the Premises.
4.1.5. All Security Deposits and the accrued and undistributed
interest on each of such Security Deposits, less permitted administrative
charges, if any, together with a schedule thereof. Such Security Deposits and
interest shall be delivered by Seller by (i) wire transfer in immediately
available federal funds to an account designated by Purchaser at least three (3)
business days prior to the Closing, or if no such account is so designated by
Purchaser, by a separate certified or official bank check payable to the order
of Purchaser, or (ii) by a credit to Purchaser against the Purchase Price,
provided that (a) in the event any cash security deposits and the interest
thereon are held by a bank (including Bankers Trust Company), savings bank,
trust company or savings and loan association, at Seller's option Seller shall
deliver to Purchaser, in lieu of such wire transfer, checks or credit, an
assignment to Purchaser of such deposits and interest and written instructions
to the holder thereof to transfer such deposits and interest to Purchaser, and
(b) with respect to any Security Deposits which are other than cash, Seller
shall execute and deliver to Purchaser at the Closing any appropriate
instruments of assignment or transfer.
4.1.6. Notices addressed to each of the tenants under the
Space Leases and New Leases, executed by or on behalf of Seller, dated the
Closing Date, which shall include a statement that the Premises have been
conveyed by Seller to Purchaser, that Purchaser as landlord is responsible for
and shall hold the Security Deposits (and interest thereon) provided for under
such tenant's Space Lease or New Lease in accordance with the terms of such
Space Lease or New Lease and with the provisions of law, directing that Rents
and other payments under such tenant's Space Lease or New Lease thereafter be
sent to Purchaser or as Purchaser may direct, and such other matters as may be
reasonably
-14-
required by Purchaser. Purchaser and Seller shall immediately after the Closing
jointly cause such letters to be mailed by certified mail to such tenants at the
address provided in such Space Leases or New Leases for the delivery of notices
or other communications to such tenants.
4.1.7. Such Estoppel Certificates (as defined in Section 10.5)
as are in Seller's possession from the tenants under the Space Leases. Purchaser
has reviewed and hereby approves the form of such Estoppel Certificates to be
sent by Seller to each such tenant. If at the Closing any tenants under the
Space Leases have not yet delivered an estoppel certificate to Seller, Seller
shall deliver a certificate to Purchaser as to each such Space Lease which shall
be in form of Exhibit L hereto but prepared for and signed by Seller as landlord
under such Space Lease, dated the date of this Agreement, made without the
references to "Tenant's best knowledge" in paragraphs 5 and 6, but with the
following added to paragraph 8 "Based on a judgment search made by Lessor" and
with the following added to paragraph 9(k) "Based on a thorough review of
Lessor's records".
4.1.8. All available keys to entrance doors to, and equipment
and utility rooms located in, the Premises, which keys shall be properly tagged
for identification.
4.1.9. The original (or, if unavailable, a copy) of (a) the
existing certificates of occupancy for the Premises, (b) to the extent they are
in Seller's possession or control, original certificates, licenses, permits,
authorizations and approvals issued for or with respect to the Premises and its
operations, including elevators and life safety systems, by governmental and
quasi-governmental authorities having jurisdiction, and (b) to the extent they
are in Seller's possession, warranties and guarantees which Seller has received
(or a blanket assignment of the same) in connection with any work or services
performed or equipment installed in the Premises.
4.1.10. A schedule updating Exhibit C and setting forth a
current rent roll for the Premises dated as of the last day of the month
preceding the month in which the Closing occurs (but in no event less than two
(2) business days prior to the Closing) and all arrears in Rents and all
prepayments of Rents under the Space Leases and New Leases.
4.1.11. Copies of the following documents with respect to the
Seller:
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(1) The certificate of incorporation of Seller and all
amendments thereof, certified by the New York State Banking Department;
(2) A good standing certificate from the New York State
Banking Department;
(3) By-laws certified to Purchaser by the Secretary or
Assistant Secretary of Seller; and
(4) The resolutions of the board of directors of Seller,
authorizing the transactions contemplated hereby (a copy of which Purchaser
hereby acknowledges receiving and hereby approves), certified by its Secretary
or Assistant Secretary as of the Closing Date as being true and correct copies
of resolutions that were adopted at a meeting of the board of directors of
Seller that was duly called and held on June 17, 1997, and that such resolutions
have not been amended and remain in full force and effect as of the Closing
Date.
(5) An incumbency certificate of an authorized officer of
Seller, evidencing that the person signing such Seller's Documents and all
closing documents hereunder on behalf of Seller is authorized to do so.
4.1.12. The Amended and Restated Bankers Lease (as provided in
Article 11 hereof) and certificate of Seller, in its capacity as landlord and
tenant under the Bankers Lease, to which reference is made in Section 11.2
hereof.
4.1.13. The Building Management Office Sublease (as provided in
Article 11 hereof).
4.1.14. Certificates or copies of the liability insurance
required by the Bankers Lease of Tenant naming Purchaser as an insured.
4.1.15. If a search of the title to the Premises discloses
judgments, penalties or other returns against other persons having names the
same as or similar to that of Seller, Seller will, on request, deliver to
Purchaser an affidavit showing that such judgments, penalties or other returns
are not against Seller.
4.1.16. Its check(s), to the order of the appropriate tax
collecting agency or official, in the amount of all real property transfer taxes
payable by reason of or in connection with the sale of the Premises by Seller to
Purchaser, and copies of all required returns therefor duly signed and sworn to
(if necessary) by Seller. In lieu of delivering such checks, Seller may elect,
upon notice to Purchaser given at least five (5)
-16-
business days prior to the Closing Date, to have Purchaser pay any of such taxes
and charges by certified check or bank check and give Purchaser a credit against
the Purchase Price in the amount thereof; provided, however, no such election
-------- -------
shall relieve Seller of its obligation to execute, deliver and file all required
returns in connection with the sale of the Premises which may be required by
governmental authority consistent with the provisions of the preceding sentence.
4.1.17. A so-called FIRPTA affidavit duly executed by Seller
stating that Seller is not a "foreign person" within the meaning of Section 1445
--------------
or 7701 of the Internal Revenue Code of 1986, as amended and the regulations
promulgated thereunder. Seller shall also provide all information and execute
all documents necessary (if any) to comply with the reporting provisions of
Section 6045(e) of the Internal Revenue Code of 1986, as amended.
4.1.18. Such financial information as may reasonably be
necessary in order for Purchaser's accountants to prepare, at Purchaser's
expense, (i) audited statements of revenues and base building operating expenses
of the Seller in respect of the Premises for the calendar year 1996, and (ii)
unaudited statements of revenues and base building operating expenses of the
Seller in respect of the Premises for the period January 1, 1997 to and
including June 30, 1997.
4.1.19. Affidavits and indemnifications executed by Seller
regarding mechanics' and materialmen's liens and parties in possession
sufficient to eliminate on Purchaser's title insurance policy exceptions for
these matters and other standard title exceptions, other than those as to which
Purchaser has agreed pursuant to this Agreement to accept title to the Premises
subject thereto.
4.1.20. A Bring-Down Certificate as provided in Section 8.19.
4.1.21. "As built" plans for the Premises to the extent such
plans are in Seller's possession or control.
4.1.22. Such other and further documents and instruments as are
expressly provided for or contemplated herein to be delivered by Seller.
-17-
5. Deliveries and Agreements by and
on behalf of Purchaser.
----------------------
5.1. At the Closing, and as a condition to Seller's obligation to
sell the Premises and deliver the deed and other Seller's Documents, Purchaser
will duly execute, acknowledge (when appropriate) and/or deliver to Seller, in
form attached hereto but when no such form is attached hereto or provided for
hereunder, in the form acceptable to Seller in its reasonable discretion, the
following:
5.1.1. The balance of the cash portion of the Purchase Price
in accordance with Section 3.1.2 hereof.
5.1.2. An assumption from and after the Closing Date of the
(a) Space Leases, New Leases, Service Contracts and Premises Agreements and (b)
the Bankers Lease, and an agreement assuming and indemnifying and holding
harmless Seller against claims and/or liability for the payment of (x) Landlord
Work and Landlord Contributions accruing or arising from and after the Closing
Date (i) the obligation as to which is to be assumed by the Purchaser pursuant
to Exhibit C and (ii) as to New Leases, and (y) Commissions (i) listed in
Exhibit C as Initial Commissions to be assumed by Purchaser and (ii) due from
and after the date hereof, as to Future Commissions, (iii) Commissions as to New
Leases, if any, and (iv) Commissions with respect to leases entered into by
Purchaser after the Closing Date with tenants with whom Seller or Seller's
agent, as of the Closing Date, was negotiating to lease space in the Premises,
and for the payment of which Commissions Seller would be legally obligated (if
Seller had signed the lease), provided that, at the Closing, Seller identifies
in a writing delivered to Purchaser all such lease negotiations for space in the
Premises, in the forms of Exhibit K and K-l, respectively, attached hereto and
made a part hereof.
5.1.3. The letters to tenants referred to in Article 4 signed
by or on behalf of Purchaser.
5.1.4. The Building Management Office Sublease.
5.1.5. Certificates or copies of fire insurance (with extended
coverage) insuring the Premises in the form required of landlord by the Bankers
Lease and of subtenant under the Building Management Office Sublease.
-18-
5.1.6. With respect to the Purchaser: (i) the partnership
agreement or operating agreement, respectively, and all amendments, attachments
and agreements related thereto certified to Seller by the general partner
thereof; (ii) any certificates filed or required to be filed by the Purchaser in
the state of its formation and, if not formed in New York State, then also from
New York State, in order for it to be organized and/or to do business in those
states; (iii) any consents by other partners or members required to authorize
the transactions contemplated by this Agreement; and (iv) if requested by
Seller, an acknowledgement by each of the general partners or members of his or
its continued membership in Purchaser.
5.1.7. With respect to the Company, as general partner of the
Purchaser: (i) the certificate of incorporation of the Company and all
amendments thereof, certified by the Secretary of State of the state of the
Company's incorporation, together with a certificate of said Secretary of State
to the effect that the corporation is in good standing therein; (ii) by-laws
certified to Seller by the secretary of the Company; and (iii) resolutions of
the board of directors of the Company authorizing the transactions contemplated
hereby (a copy of which Seller hereby acknowledges receiving and hereby
approves) certified by a secretary or assistant secretary as of the Closing Date
as being true and correct copies of resolutions that were adopted at a meeting
of the board of directors of the Company that was duly called and held on August
5, 1997, and that such resolutions have not been amended and remain in full
force and effect as of the Closing Date;
5.1.8. An incumbency certificate of an officer of the Company,
evidencing that the person signing this Agreement and all closing documents
hereunder on behalf of Purchaser is authorized to do so.
5.1.9. All required real property transfer tax returns, duly
signed and sworn to, if necessary by Purchaser, and Purchaser shall cause all
such returns and, if Seller makes the election referred to in the second
sentence of Section 4.1.16 hereof, checks of Purchaser as required by such
Section in payment of such taxes to be delivered to the appropriate tax
officials promptly after the Closing.
-19-
5.1.10. Such other and further documents and instruments as are
expressly provided for or contemplated herein to be delivered by Purchaser to
Seller.
6. Adjustments at Closing
----------------------
6.1. The following adjustments are to be made at the Closing as of
the day immediately preceding the Closing Date:
6.1.1. All current period's Rents under the Space Leases and
New Leases if, as and when collected, including Additional Rent (as defined in
Section 6.5.1) and other charges; except Rent and Additional Rent arrears shall
be adjusted as provided in Section 6.5 hereof.
6.1.2. Prepaid and accrued items, such as fees for
transferable licenses and permits, if any.
6.1.3. Current charges and payments under the Service
Contracts or renewals or replacements thereof permitted pursuant to Section 10.4
hereof.
6.1.4. Water rents, sewer charges, gas, telephone, electricity
and other utility services on the basis of the most recently issued bills
therefore, in accordance with the provisions of Section 6.4, subject to
adjustment after the Closing when the next bills are available, or if current
meter readings are available, on the basis of such readings. Such charges
referred to above which are payable by any tenant to a third party shall not be
apportioned hereunder, and Purchaser shall accept title subject to any of such
unpaid charges and Purchaser shall look solely to the tenant responsible
therefor for the payment of the same. If Seller shall have paid any of such
charges on behalf of any tenant, and shall not have been reimbursed thereof or
by the time of Closing, Purchaser shall credit to Seller an amount equal to all
such charges so paid by Seller.
6.1.5. Real estate taxes, business improvement district
charges, electric generator tax, public assembly charges, assessments and sewer
rents, for and on the basis of the fiscal year for which assessed, if assessed
on or prior to the Closing Date subject, however, to the provisions of Section
6.3. Seller shall receive the entire advantage of any discounts for the
prepayment by it of any taxes, water rates or sewer rents.
-20-
6.1.6. Value of fuel, if any, stored on the Premises, at
Seller's cost, including any taxes, on the basis of a statement from Seller's
supplier or Seller.
6.1.7. Personal property taxes, if any, on the basis of the
fiscal year for which assessed.
6.1.8. Purchaser shall pay for any submeters which are in
inventory at the Premises at the time of Closing, at the cost to Seller thereof
to be determined by a certificate of an agent or employee of Seller; Purchaser
shall pay to Seller the amount of any and all sales or similar taxes payable in
connection therewith, and the Purchaser shall execute and deliver any tax
returns required of it in connection therewith (it being agreed that no part of
the consideration hereunder has been ascribed thereto by the parties), said
obligations of Purchaser to survive the delivery of the deed.
6.1.9. Permitted administrative charges, if any, on tenants'
security deposits.
6.1.10. To the extent transferred to Purchaser, transferable
deposits with any utility companies or other persons or entities who supply
goods or services in connection with the operation of the Premises which will
remain on deposit after the Closing.
6.1.11. If, on the Closing Date, the Premises or any part
thereof shall be or shall have been affected by an assessment or assessments
which are or may become payable in annual installments, of which the first
installment is then a charge or lien, or has been paid, then for the purposes of
this Agreement all of the installments of any such assessments, including those
which are to become due and payable after the Closing Date, shall be apportioned
between the parties on the basis of amortizing the same on a straight-line basis
over the term of such installments. This provision shall survive the delivery of
the deed.
6.1.12. There shall be an adjustment in favor of Seller in the
amount of all Initial Commissions listed in Exhibit C to be assumed by
Purchaser, all Future Commissions, all Landlord Work and all Landlord
Contributions listed in Exhibit C to be assumed by Purchaser, which, prior to
the Closing Date, have been paid by Seller.
-21-
6.1.13. There shall be an adjustment in favor of Seller in the
amount of all Expenses under New Leases paid or incurred by Seller prior to the
Closing in accordance with Section 10.1.1.
6.1.14. Other apportionments and adjustments, if any, pursuant
to Article 10.
6.1.15. All current period Rents under the Bankers Lease.
There shall be no other adjustments or prorations except as elsewhere
in this Agreement expressly provided. Except as elsewhere in this Agreement
provided, the "customs in respect of title closings" adopted by the Real Estate
Board of New York Inc. shall apply to the apportionment and other matters herein
mentioned.
6.2. Purchaser hereby assigns to Seller all rights which it would
otherwise have, if any, for a tax saving or refund for all real estate and other
taxes due with respect to the Premises for all tax years or portions thereof
prior to the Closing Date, excepting only the tax year in which the Closing
occurs (i.e., the tax year July 1, 1997 through June 30, 1998) and hereby
authorizes Seller to commence or continue whatever actions or proceedings Seller
may deem advisable in order to effect any such saving or refund, in the name of
Seller; provided, however, that all costs and expenses in respect to the
prosecution of any such claim, action or proceeding by Seller shall be borne
entirely by Seller; provided, further however, that Seller shall not take any
action in connection with any such claim, action or proceeding which shall
adversely affect Purchaser's claim for a tax savings or refund for the tax year
in which the Closing shall occur and for tax years subsequent to the tax year in
which the Closing shall occur. Seller shall not be deemed to have adversely
affected Purchaser's claim for such a tax savings or refund if Seller endeavors
to settle all presently open claims for a tax saving or refund for all real
estate and other taxes due with respect to the Premises for all tax years prior
to the tax year in which the Closing occurs, through the administrative claim
level of the New York City Department of Law, on the basis of a reduction from
the assessed valuation for tax year July 1, 1996 through June 30, 1997 that is
at least proportionate to the reduction obtained for the remaining such open tax
years. If the Department of Law shall fail or refuse to settle all such open
tax years on that basis, the Seller shall be free to settle all such prior tax
years at its discretion as Seller may deem advisable or otherwise prosecute any
such claim, action or proceeding at its discretion as Seller
-22-
may deem advisable. Seller shall instruct its attorney which attends such pre-
trial discussions or hearing or hearings at the Department of Law conducted with
respect to such proportional settlement, to fully advise Purchaser as to what
transpired at such hearing or hearings. Seller hereby assigns to Purchaser all
rights which it would otherwise have, if any, for a tax saving or refund for all
real estate and other taxes due with respect to the Premises for the tax year in
which the Closing occurs, and hereby authorizes Purchaser to commence or
continue at Purchaser's sole cost and expense, whatever action or proceedings
Purchaser may deem advisable in order to effect any such savings or refund, in
the name of Seller; provided, however, that Purchaser shall not take any action
in connection with any such claim, action or proceeding which shall adversely
affect Seller's claim for a tax savings or refund for the tax years prior to
that in which the Closing shall occur. Seller and Purchaser shall not withdraw,
compromise or settle any such proceedings for the tax year in which the Closing
shall occur without the prior written consent of the other, which consent Seller
and Purchaser agree shall not be unreasonably withheld or delayed. All tax
savings which Purchaser may recover for the tax year in which the Closing shall
occur, shall, after deducting all reasonable costs and expenses in obtaining
such savings (including, without limitation, attorneys' fees) be apportioned
between Seller and Purchaser and, as to the portion, if any, of such refund or
credit to which present tenants of the Premises may be entitled (whether by way
of refund or rent credit) under the terms of their respective Space Leases,
Purchaser shall promptly refund such tax refund or credit to the tenants
entitled thereto and after allocating to Seller Seller's allocable share of such
refund or credit to tenants, Purchaser shall promptly pay the balance to Seller
of the Seller's allocable share. Notwithstanding any provisions of this Section
6.2 to the contrary, and without duplication of any other provision of this
Agreement, if, despite the fact that Seller has hereby assigned to Purchaser all
tax savings, refunds or credits for the tax year in which the Closing occurs,
Seller receives any tax refund or credit (including, without limitation,
pursuant to the provisions of the preceding sentence), the Seller shall promptly
pay to the Purchaser, the amount of such refund or credit for application by
Purchaser pursuant to the provisions of the previous sentence. If after the
Closing Seller shall receive any tax refund or credit for any tax year prior to
that in which the Closing occurred, Seller and Purchaser will cooperate in
determining what portions of such refund or credit must be refunded or credited
to the past or present tenants of the Premises, if any, and as to the portion,
if any, of such refund or credit to which
-23-
the past or present tenants of the Premises may be entitled (whether by way of
refund or rent credit) under the terms of their respective leases or Space
Leases as in effect as of the date hereof, Seller shall turn such portion over
to Purchaser and Purchaser shall promptly refund such tax refund or credit to
the tenants entitled thereto. Purchaser shall indemnify and hold Seller harmless
from and against all losses, damages, costs and expenses (including attorneys'
fees) that Seller may suffer or incur as a result of the failure by Purchaser to
refund such tax refund or credit to such tenants in accordance with this Section
6.2. Seller shall indemnify and hold Purchaser harmless from and against all
losses, damages, costs and expenses (including attorneys' fees) that Purchaser
may suffer or incur as a result of the failure of Seller to refund any and all
tax refunds or credits to tenants of the Premises in accordance with this
Section 6.2. Each of Seller and Purchaser further agree to execute any and all
further instruments and documents which Purchaser or Seller, in its reasonable
discretion, may deem necessary in order to effect the provisions of this Section
6.2. The provisions of this Section 6.2 shall survive the delivery of the deed.
6.3. If the closing of the title shall occur before the tax rate is
fixed, the apportionment of taxes shall be upon the basis of the taxes actually
billed, but when the final tax rate is determined, there shall be a ratable
adjustment on a per diem basis between Seller and Purchaser if final taxes vary
from such billed taxes, with such adjustment to be completed within ten (10)
business days after either party has informed the other that adjustment is
necessary. Purchaser shall promptly pay any tax refund or adjustment due to any
tenant under the Space Leases as a result of such change in the tax rates.
Purchaser shall indemnify and hold Seller harmless from and against all losses,
damages, costs and expenses (including attorneys' fees) that Seller may suffer
or incur as a result of the failure by Purchaser to pay such tax refund or
adjustment to such tenants under the provisions of the previous sentence. The
provisions of this Section 6.3 shall survive delivery of the deed.
6.4. As to charges for water, electricity, gas and other utilities for
the Premises, Seller shall endeavor to furnish a current meter reading at the
Closing, which readings shall have been made not earlier than two (2) business
days prior to the time herein set for Closing, and Seller shall pay the charges
therefor to such date. In the event that such a meter reading cannot be
obtained, Seller shall furnish a reading to a date not more than thirty (30)
days prior to the time herein set for Closing, and the unfixed meter charge
based thereon
-24-
for the intervening time shall be apportioned on the basis of such last reading;
in such event the parties agree to notify the utility company to read the meters
as soon as possible after Closing and to render a final xxxx to Seller. The
final xxxx shall be apportioned as of the Closing Date. The provisions of this
Section 6.4 shall survive the delivery of the deed.
6.5. As to rents and Additional Rents under Space Leases and New
Leases:
6.5.1. If on the Closing Date any tenant under any Space Lease or
New Lease is in arrears in the payment of basic or fixed rent ("Basic Rent"),
--------------
percentage rent, escalation charges for real estate taxes, wage rates, operating
expenses and maintenance escalation rents or charges or cost-of-living increases
("Basic Additional Rent"), service charges, electric charges, overtime heating,
-------------------------
air-conditioning and/or ventilation charges or other charges of a similar nature
(collectively with Basic Additional Rent "Additional Rent"; and collectively
---------------
with any such Basic Rent, "Rents"), whether or not in arrears, such Basic Rent
-----
and Basic Additional Rent received from such tenant after the Closing shall be
applied in the following order of priority: (i) first to any month or months
following the month in which the Closing occurred up to the month in which such
Basic Rent and Basic Additional Rent is received, (ii) then to the month in
which the Closing occurred, (iii) then to the month preceding the month in which
the Closing occurred, and (iv) then to the period prior to the month preceding
the month in which the Closing occurred. If Rents or any portion thereof
received by Seller or Purchaser after the Closing are payable to the other party
by reason of this allocation, the appropriate sum, less a proportionate share of
any reasonable attorneys' fees and costs and expenses of collection thereof
actually incurred, shall be paid to the other party within fifteen (15) days
after receipt thereof.
6.5.2. Notwithstanding anything to the contrary contained in
Section 6.5.1., if any tenant under a Space Lease or New Lease is required to
pay Additional Rent other than Basic Additional Rent which are collected by
Purchaser after the Closing Date and which are attributable in whole or in part
to any period prior to the Closing, whether or not billed as of the Closing
Date, or if adjustments in Basic Additional Rent are required to be made between
the landlord and the tenant under the Space Lease or New Lease after the Closing
(pursuant in cases of reimbursement of expenses, to an allocation on the basis
of the respective periods with respect to which such expenses were incurred or
taxes
-25-
were payable or sales were made), then Purchaser shall pay to Seller within
fifteen (15) days of the first receipt of Additional Rents from the applicable
tenant after the Closing, Seller's proportionate share thereof less a
proportionate share of any reasonable attorneys' fees and costs and expenses of
collection thereof. If, under the terms of any Space Lease or New Lease, any
Basic Additional Rents paid by the tenant thereunder prior to Closing for any
period ending prior to the Closing are to be adjusted between the landlord and
the tenant thereunder after the Closing, (x) Seller agrees, with respect to such
adjustments which are in favor of any such tenant, to reimburse Purchaser,
within fifteen (15) days after demand, for the amount of such adjustments which
the landlord under such Space Lease or New Lease is obligated to pay or credit
to such tenant and (y) Purchaser agrees, with respect to such adjustments which
are in favor of landlord, to use good faith efforts in accordance with Section
6.5.3 to xxxx and collect on behalf of Seller any such adjustment with respect
to any periods prior to the Closing Date. No adjustment which results in the
compromising of any claim shall be made without Seller's prior approval, which
approval shall not be unreasonably withheld or delayed.
6.5.3. Seller shall cooperate with Purchaser to assist Purchaser
in the billing and collection on behalf of Seller after the Closing of Rents
including Additional Rents in arrears as of the date of the Closing or which are
due to Seller pursuant to Sections 6.5.1 and 6.5.2. Purchaser will also make a
good faith effort after Closing to xxxx for and collect on behalf of Seller all
such Rents and Additional Rents in arrears or which are due to Seller pursuant
to Sections 6.5.1. and 6.5.2., but Purchaser will not be obligated to institute
any independent lawsuit to collect delinquent Rents and Additional Rents but
Purchaser shall include in any lawsuit for Rents and Additional Rents due after
the Closing which it may institute a claim for Rents and Additional Rents due
prior to Closing. The provisions of this Section 6.5.3 shall survive delivery of
the deed.
6.6. If the landlord under any Space Lease, other than a New Lease,
has an obligation, whether accrued or contingent, to pay any Landlord
Contributions which are listed in Exhibit C annexed hereto, and whether payable
prior to or after Closing, then Seller shall be responsible for same, except for
those Landlord Contributions to be assumed by Purchaser listed in Exhibit C.
Seller and Purchaser shall keep each other fully advised, and shall furnish to
the other true and complete copies of, any requisitions or requests for payment
and other communications with the tenants
-26-
involved relating to such payments to be made by Seller after the Closing.
Purchaser shall not amend, modify or waive any of the provisions of any such
Space Lease relating to such obligations of Seller without the prior written
consent of Seller first obtained but which shall not be unreasonably withheld or
delayed by Seller. If any such sum which Seller is so obligated to pay is due
and payable to the tenant involved, Seller shall directly pay such sum to the
Purchaser within twelve (12) business days after receipt of all requisitions and
other documentation required by such Space Lease and of Purchaser's
certification to Seller that such sum is due and payable to such tenant in
accordance with the provisions of such Space Lease, and upon receipt thereof,
Purchaser shall promptly pay such requisition to such tenant under such Space
Lease. Purchaser shall indemnify and hold Seller harmless from and against all
losses, damages, costs and expenses (including attorneys' fees) that Seller may
suffer or incur as a result of the failure by Purchaser to pay such requisition
to such tenant under the provisions of the previous sentence. The provisions of
this Section 6.6 shall survive the delivery of the deed hereunder.
6.7. After the Closing, Seller shall perform Landlord's Work listed as
items 2 and 3 on Exhibit C, Landlord's Work, attached hereto.
6.8. If any of the items subject to apportionment under the foregoing
provisions of this Article 6 cannot be apportioned at the Closing because of the
unavailability of the information necessary to compute such apportionments, or
if any errors in the computations of any apportionments made at the Closing are
discovered subsequent thereto, then such items shall be apportioned and such
errors corrected as soon as practicable after the Closing Date and the proper
party reimbursed.
6.9. The provisions of this Article which require any act to be
performed after the Closing shall survive the Closing.
7. Representations and Warranties of Purchaser and the Company
-----------------------------------------------------------
In order to induce Seller to enter into the transactions provided for
in this Agreement, Purchaser and, as to Sections 7.6 through 7.10, the Company
hereby warrants and represents to Seller, which warranties and representations
shall survive delivery of the deed hereunder for a period of one (1) year after
the Closing Date, that as of the date of this Agreement and on the Closing Date:
-27-
7.1. Purchaser is a limited partnership duly organized and validly
existing under the laws of the State of Delaware, governed by that certain
amended and restated agreement of limited partnership dated June 23, 1997, and
has the power to acquire, own and operate the Premises. Purchaser and the
general partner of Purchaser each has the power to enter into the transactions
contemplated by this Agreement and to execute, deliver and perform this
Agreement, the Bankers Lease, and the assumptions and other documents
contemplated hereby to be executed and performed by Purchaser (collectively, the
"Purchaser's Documents"). The execution, delivery and performance by Purchaser
------------------------
of this Agreement and the other Purchaser's Documents has been duly authorized
by all partnership action of Purchaser, and this Agreement is, and at the
Closing, the other Purchaser's Documents will, when executed and delivered by
Purchaser, constitute the legal, valid, binding obligations of Purchaser
enforceable against Purchaser in accordance with their respective terms and
provisions, subject to applicable bankruptcy and other like laws affecting the
rights of contractual parties and creditors generally, and the exercise of
judicial or administrative discretion in accordance with general equitable
principles (whether such enforceability is considered in a proceeding in equity
or at law).
7.2. There are no suits, actions or proceedings pending or, to the
actual knowledge of Purchaser, threatened against or affecting Purchaser before
or by any court or administrative agency or officer, to prohibit or enjoin the
consummation of the transactions provided for herein or which could materially
and adversely affect the ability of the Purchaser to perform its obligations
under the Purchaser's Documents.
7.3. Except as provided in Section 4.1.16 hereof, no consent, approval
or other action of, or filing or registration with, any governmental agency,
commission or officer is required in connection with the execution, delivery,
observance or performance by Purchaser of this Agreement, or any of the
Purchaser Documents, or any of the transactions provided for herein.
7.4. There has not been filed by or against Purchaser, the general
partner of Purchaser or any corporation, partnership, or other entity with
respect to which Purchaser is a principal shareholder, controlling person,
general partner or managing member, as the case may be, a petition in bankruptcy
or insolvency proceedings or for reorganization, or for the appointment of a
receiver or trustee, nor has any such entity made an assignment for the benefit
of creditors or filed a
-28-
petition for an arrangement or entered into an arrangement with creditors or
admitted in writing the inability to pay its debts as they become due.
7.5. The execution and delivery of this Agreement and the Purchaser's
Documents, and the transactions provided for herein and therein, respectively,
and compliance with or fulfillment of the terms hereof and thereof, will not (a)
conflict with or result in a breach of any of the terms and provisions of or
constitute a default under or conflict with or result in the creation of any
mortgage, lien, charge or encumbrance of any nature whatsoever (except as
contemplated by the transactions described in this Agreement) upon any of the
properties or assets of Purchaser pursuant to, any agreement, indenture,
mortgage, lien, lease, consent, license, franchise or other instrument to which
Purchaser or the general partner of Purchaser is bound or under which
Purchaser's properties are affected, or (b) violate any law, rule, regulation,
judgment, order, decree, writ or injunction applicable to Purchaser.
7.6. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware, and has the power to enter into the
transactions contemplated by this Agreement on behalf of Purchaser and to
execute and deliver this Agreement, and the assumptions and other documents
contemplated hereby to be executed and delivered by the Company on behalf of
Purchaser. The execution and delivery by the Company of this Agreement and the
other Purchaser's Documents on behalf of Purchaser has been duly authorized by
all corporate action of the Company.
7.7. There are no suits, actions or proceedings pending or, to the
actual knowledge of the Company, threatened against or affecting the Company
before or by any court or administrative agency or officer, to prohibit or
enjoin the consummation of the transactions provided for herein or which could
materially and adversely affect the ability of the Purchaser to perform its
obligations under the Purchaser's Documents or the Company to execute and
deliver the Purchaser's Documents on behalf of Purchaser.
7.8. Except as provided in Section 4.1.16 hereof, no consent, approval
or other action of, or filing or registration with, any governmental agency,
commission or officer is required in connection with the execution and delivery
by the Company of the Purchaser's Documents on behalf of the Purchaser, or any
of the transactions provided for therein.
-29-
7.9. There has not been filed by or against the Company, or any
corporation, partnership, or other entity with respect to which the Company is a
principal shareholder, controlling person, general partner or managing member,
as the case may be, a petition in bankruptcy or insolvency proceedings or for
reorganization, or for the appointment of a receiver or trustee, nor has any
such entity made an assignment for the benefit of creditors or filed a petition
for an arrangement or entered into an arrangement with creditors or admitted in
writing the inability to pay its debts as they become due.
7.10. The execution and delivery by the Company of the Purchaser's
Documents on behalf of the Purchaser, and the transactions provided for therein,
and compliance with or fulfillment of the terms thereof, will not (a) conflict
with or result in a breach of any of the terms and provisions of or constitute a
default under or conflict with or result in the creation of any mortgage, lien,
charge or encumbrance of any nature whatsoever (except as contemplated by the
transactions described in this Agreement) upon any of the properties or assets
of the Company pursuant to, any agreement, indenture, mortgage, lien, lease,
consent, license, franchise or other instrument to which the Company is bound or
under which the Company's properties are affected, or (b) violate any law, rule,
regulation, judgment, order, decree, writ or injunction applicable to the
Company.
7.11. For the purpose of this Section 7, "survive delivery of the deed
hereunder for a period of one (1) year after the Closing Date" shall mean and
require that Seller shall commence a lawsuit against Purchaser or the Company,
as the case may be, on the basis of such representation or warranty in a court
of competent jurisdiction within one (1) year from the Closing Date.
8. Representations and Warranties of Seller
----------------------------------------
In order to induce Purchaser to enter into the transactions provided
for in this Agreement, Seller hereby warrants and represents to Purchaser that
as of the date of this Agreement and, as to Section 8.1 through 8.5, 8.7.2(ii)
and 8.13, on the Closing Date:
8.1. Seller is a duly organized and validly existing corporation
under the banking laws of the State of New York, and has full power and
authority to enter into the transactions contemplated by this Agreement and to
execute, deliver and perform this Agreement, the Bankers Lease, and the
assignments, xxxx of sale and other documents contemplated hereby to be executed
and
-30-
performed by Seller (collectively, "Seller's Documents"). The execution,
------------------
delivery and performance by Seller of this Agreement and the other Seller's
Documents have been duly authorized by all necessary action of the board of
directors (or executive committee) of Seller and this Agreement is and at the
Closing, the other Seller's Documents will, when executed and delivered by
Seller, constitute the legal, valid and binding obligations of Seller
enforceable against Seller in accordance with their respective terms and
provisions, subject to applicable bankruptcy and other like laws affecting the
rights of contractual parties and creditors generally, and the exercise of
judicial or administrative discretion in accordance with general equitable
principles (whether such enforceability is considered in a proceeding in equity
or at law).
8.2. There are no suits, actions or proceeding pending or, to the
actual knowledge of Seller, threatened against or affecting Seller before or by
any court or administrative agency or officer, to prohibit or enjoin the
consummation of the transactions provided for herein or which could materially
and adversely affect the ability of the Seller to perform its obligations under
the Seller's Documents.
8.3. Except as provided for in Section 4.1.16 hereof, no consent,
approval or other action of, or filing or registration with, any governmental
agency, commission or officer is required in connection with the execution,
delivery, observance or performance by Seller of this Agreement or any of the
transactions provided for herein.
8.4. There has not been filed by or against Seller or any Affiliate
of Seller which may be the tenant under the Bankers Lease, a petition in
bankruptcy or insolvency proceedings or for reorganization, or for the
appointment of a receiver or trustee, nor has Seller or any Affiliate of Seller
which may be the tenant under the Bankers Lease made an assignment for the
benefit of creditors or filed a petition for an arrangement or entered into an
arrangement with creditors or admitted in writing the inability to pay its debts
as they become due.
8.5. The execution and delivery of this Agreement and the other
Seller's Documents, the transactions provided for herein and therein,
respectively, and compliance with or fulfillment of the terms hereof and
thereof, will not (a) conflict with or result in a breach of any of the terms
and provisions of or constitute a default under or conflict with, or result in
the creation of any mortgage, lien, charge or
-31-
encumbrance of any nature whatsoever (except as contemplated by the transactions
described in this Agreement) upon any of the properties or assets of Seller
pursuant to, any agreement, indenture, mortgage, lien, lease, consent, license,
franchise or other instrument to which Seller is bound or under which Seller's
properties are affected, or (b) violate any law, order, rule, regulation,
judgment, decree, writ or injunction applicable to Seller.
8.6. Exhibit C hereto lists each of the Space Leases and the Bankers
Lease existing as of the date hereof, including all modifications, amendments,
supplements or other changes thereto. True and complete copies of such Space
Leases and the Bankers Lease have been delivered to Purchaser. As of the date
hereof, there are no written agreements in force or rights of occupancy or
possession, for the use, lease or occupancy of space in or at the Premises or
any portion thereof (whether or not the terms thereof have commenced) to which
the Seller, its Affiliates or any of its designees are a party or are bound as
landlord or to which any part of the Premises is subject, other than the Space
Leases listed in Exhibit C hereto and the Bankers Lease, excluding subleases and
suboccupancies and the occupancy by Seller or its Affiliates. If there is any
variance between the terms, provisions and conditions contained in any Space
Lease or the Bankers Lease exhibited to Purchaser and in any statement with
respect to the Space Leases or the Bankers Lease set forth in Exhibit C or
elsewhere stated herein, or in any abstract of the Space Leases or the Bankers
Lease furnished by the Seller to the Purchaser, the terms, provisions and
conditions contained in the Space Leases and the Bankers Lease (and not as
described in Exhibit C or elsewhere stated herein or such abstract) shall
control and shall constitute Seller's representation and warranty, and, only to
the extent such provisions are at variance with the provisions of any Space
Lease or the Bankers Lease, said Exhibit C or other statements herein or such
abstract (which abstract shall in no event constitute a representation or
warranty of Seller) shall not constitute any representation or warranty in
respect thereto, provided, however, that the provisions of this sentence shall
not be interpreted or construed, nor be deemed to limit, restrict or otherwise
detract from or affect (a) Seller's representations made in the three (3)
preceding sentences, or (b) any of the rights of Purchaser under this Agreement
if the representations made by Seller in the three (3) preceding sentences are
not true, correct and complete on the date hereof and on the Closing Date.
-32-
8.7. Except as otherwise set forth in Exhibit C, as to the Space
Leases and the Bankers Lease, as of the date hereof:
8.7.1. Seller has not sent written notice to any tenant
claiming that such tenant is in default, which default remains uncured, and to
the best of Seller's actual knowledge, there exists no event which, with the
passage of time or the giving of notice, or both, would constitute (i) a
monetary default by the tenant under the terms of any such Space Lease or (ii)
or any other default by the tenant which would have a material adverse effect on
the landlord's rights under such Space Leases considered in the aggregate.
8.7.2. To the best of Seller's actual knowledge, (i) no tenants
under such Space Leases have claimed or asserted any defaults, defenses,
counterclaims, set-offs or offsets against the Rents or Additional Rents
reserved under their respective Space Leases, which claims have not been
discharged or resolved, and (ii) Seller is not in default under any provision of
any of the Space Leases which when considered in the aggregate would have a
material adverse effect on the landlord's rights under such Space Leases, which
defaults have not been discharged or resolved.
8.7.3. There are no arrearages under the Space Leases in the
payment of Basic Rents or Basic Additional Rents or, to the best of Seller's
actual knowledge, in the payment of Additional Rents (other than Basic
Additional Rents).
8.7.4. No tenant has paid Rent for more than one month in
advance (except in the case of real estate tax or similar reimbursements).
8.7.5. Seller has no present obligations to perform any
improvements or alterations in any tenant's space in order to prepare such space
for tenant's occupancy as landlord under such Space Leases ("Landlord Work") or
--------------
the Bankers Lease which has not been completed and fully paid for or to make any
contribution, reimbursement, allowance or other payment to any such tenant for
or on account of such improvements or alterations by any tenant under such Space
Leases ("Landlord Contributions") or the Bankers Lease which has not been fully
paid.
8.7.6. Seller has assigned none of its rights under such Space
Leases or the Bankers Lease, and, except as to mortgages held by an Affiliate of
Seller which mortgages will be satisfied or released as a lien on the Premises
at or prior to Closing, Seller has not
-33-
mortgaged, pledged, hypothecated, granted a security interest in, or otherwise
encumbered landlord's interest under such Space Leases or the Bankers Lease.
8.7.7. No action or proceeding instituted against Seller by any
tenant and not covered by insurance is presently pending in any court.
8.7.8. There are no security deposits.
8.8. All brokerage commissions or other compensation due brokers
("Commissions") arising by reason of such Space Leases or the Bankers Lease,
-----------
whether for the initial term thereof and original premises demised thereunder
("Initial Commissions") and/or for renewals, elections not to terminate,
-------------------
extensions or options to lease additional space, or otherwise with respect to
leasing transactions ("Future Commissions"), (x) to the extent due through the
------------------
date hereof have been fully paid or (y) to the extent accrued but not payable
until after the date hereof are set forth and described in Exhibit C attached
hereto, which Exhibit sets forth each such contract or agreement pursuant to
which such Commissions are payable or (z) as to Commissions for the payment of
which Seller is not now but would have been legally obligated if Seller had
signed a lease, with tenants with whom Seller or Seller's agent, as of the date
hereof, was negotiating to lease space in the Premises, are set forth and
described in Exhibit C hereto, which Exhibit sets forth each such contract or
agreement pursuant to which such Commissions, in the circumstances described in
this clause (z) become payable (the "Brokerage Agreements"). True and complete
--------------------
copies of the Brokerage Agreements have been delivered to Purchaser.
8.9. The copies of the real property tax bills for the Premises for
the current tax year which have been furnished by Seller to Purchaser are true
and correct copies of the tax bills for the Premises, and there are no tax
abatements or exemptions or, to Seller's best knowledge, except for real estate
tax fiscal years 1993/94 through 1997/98 for the East Building and 1994/95
through 1997/98 for the West and Middle Buildings, there are no real property
tax reduction proceeding affecting the Premises.
8.10. (a) There are no material Service Contracts with respect to
the Premises other than those listed on Exhibit G attached hereto. Such Service
Contracts are accurately and completely set forth in Exhibit G, and the copies
thereof furnished by Seller to Purchaser are true and complete.
-34-
(b) To the best of Seller's actual knowledge, there are no
claims or any basis for claims in respect of the Premises or its operation by
any of the parties to such Service Contracts which when considered in the
aggregate would have a material adverse effect on the operation of the Premises.
8.11. Seller has not, as of the date of this Agreement, received
written notice from any governmental or quasi-governmental body or agency with
respect to any actual or threatened taking of the Premises or any portion
thereof for any public or quasi-public purpose by the exercise of the right of
condemnation or eminent domain, and to the best of Seller's knowledge, there are
no such actions or proceedings pending, presently threatened or contemplated by
any governmental or quasi-governmental body or agency.
8.12. Except as disclosed in writing to Purchaser prior to the
date of the Agreement, there are no suits, actions or proceedings pending
against or affecting the Premises or any portion thereof before or by any court
or administrative agency or officer, and to the best of Seller's actual
knowledge, there are no such actions or proceedings threatened.
8.13. None of the employees presently employed by Seller at the
Premises is subject to a union contract to which Seller is party or is bound.
Seller's managing agent's employees are union employees, however, such
management agreement shall be terminated by Seller as of the Closing Date. None
of the employment agreements or arrangements with employees presently employed
by Seller at the Premises will be binding on Purchaser after the Closing.
8.14. Seller has not received any notices from any insurer or its
agent requiring performance of any work with respect to Premises or canceling or
threatening to cancel any policy, which notices have not been discharged or
resolved.
8.15. To the best of Seller's actual knowledge, Seller has
received no notice from any third party as to a material breach or violation by
Seller nor, to the best of Seller's actual knowledge, is Seller in material
breach or violation, of Seller's covenants and obligations under the Premises
Agreements which would have a material adverse affect on Seller's rights under
such Premises Agreement.
8.16. No investigations, inquiries, orders, hearings, actions or
other proceedings by or before any governmental board, agency or authority are
pending, or, to the best of Seller's actual knowledge, threatened in
-35-
connection with any Environmental Activity or alleged Environmental Activity at
the Premises. For the purposes of this Section 8.16 the terms "Hazardous
---------
Materials" and "Environmental Activity" shall have the following meanings:
---------- ----------------------
"Environmental Activity" means any use, storage, release, threatened
------------- --------
release, emission, remediation, discharge, generation, processing,
abatement, removal or disposition of any Hazardous Materials from, under,
into or on the Premises or any handling, transportation or treatment of
Hazardous Materials arranged by or on behalf of Seller and relating to the
Premises.
"Hazardous Materials" means (a) hazardous materials, hazardous wastes, and
--------- ---------
hazardous substances as those terms are defined in the following statutes
and their implementing regulations: the Hazardous Materials Transportation
Act, 49 U.S.C. (S)1801 et seq., the Resource Conservation and Recovery
----
Act, 42 U.S.C. (S)6901 et seq., the Comprehensive Environmental Response,
-- ----
Compensation and Liability Act, as amended by the Superfund Amendments and
Xxxxxxxxxxxxxxx Xxx, 00 X.X.X. (X)0000 et seq., the Clean Water Act, 33
-- ----
U.S.C. (S)1251 et seq., the Toxic Substances Control Act, 15 U.S.C.
-- ----
(S)2601 et seq., the Clean Air Act, 42 U.S.C. (S)7401 et seq., (b)
-- ---- -- ----
petroleum, including crude oil and any fractions thereof, (c) natural gas,
synthetic gas, and any mixtures thereof, (d) asbestos and/or any material
which contains 1% or more, by weight, of any hydrated mineral silicate,
including but not limited to chrysotile, amosite, crocidolite, tremolite,
anthophylite and/or actionlite, whether friable or non-friable, (e) PCBs
or PCB-containing materials or fluids, and (f) any additional substance or
material which at this time is classified or considered to be hazardous or
toxic under any federal, New York or any other law applicable to the
Premises. Notwithstanding anything to the contrary contained in this
definition of Hazardous Materials, no material shall be deemed to be a
Hazardous Material if such Hazardous Material is contained in legally
permissible containers in legally permissible amounts.
-36-
8.17. If, on or before the date of Closing, any representation made
by Seller in this Agreement shall be discovered or otherwise determined, to be
inaccurate as and when made ("Misrepresentation"), to such an extent that such
--------------------
Misrepresentation(s), would result, or could reasonably in good faith be
expected to result, in damages to Purchaser in an aggregate amount, together
with Bring-Down Damages (as defined in Section 8.19) and any claims against or
obligations of Seller pursuant to Sections 12.1, 12.4 and 12.5, in excess of Ten
Million and 00/100 Dollars ($10,000,000) (collectively, "Material
--------
Misrepresentations and Changed Circumstances", and if equal to or less than such
---------------------------------------------
amount, "Non-Material Misrepresentations and Changed Circumstances"), then
-----------------------------------------------------------
Purchaser shall give prompt written notice thereof to Seller (the "Materiality
-----------
Notice") (but in any event on or prior to the Closing). Seller shall have the
-------
right to cure any Misrepresentati6ns or Changed Circumstances, but not the
obligation to cure the Material Misrepresentations and Changed Circumstances,
within ninety (90) days after the date scheduled for Closing, provided that
Seller promptly commences to cure such Misrepresentations and Changed
Circumstances and thereafter continues diligently and in good faith to cure the
Misrepresentations and Changed Circumstances. The Closing shall be extended, if
necessary, in order to permit the cure described above, but in no event shall
the date of the Closing be so extended for more than ninety (90) days. In the
event that Seller elects not to cure any such Material Misrepresentations and
Changed Circumstances, Seller may notify Purchaser of such election within five
(5) business days after its receipt of the Materiality Notice. If Seller elects
not to cure the Material Misrepresentations and Changed Circumstances or if, by
the expiration of the cure period provided for above, Seller has failed to cure
the Material Misrepresentations and Changed Circumstances, Purchaser may, as its
sole and exclusive remedy, either (i) waive such Material Misrepresentations and
Changed Circumstances and proceed to consummate this Agreement in accordance
with its terms subject to the Material Misrepresentations and Changed
Circumstances with a reduction in the Purchase Price in an amount equal to the
damages the parties reasonably and in good faith expect to result to Purchaser
from such Material Misrepresentations and Changed Circumstances (but, together
with any claims against or obligations of Seller pursuant to Sections 12.1, 12.4
and 12.5 not exceeding $10,000,000); provided, however, that if the parties
reasonably and in good faith disagree as to the amount of damages Purchaser
would suffer on account of such Material Misrepresentations and Changed
Circumstances, the amount of damages on account thereof as reasonably in good
faith determined by Purchaser shall be deposited
-37-
with Seller at the Closing and the amount of such damages, if any, shall be
decided by binding arbitration under the Commercial Rules of the American
Arbitration Association, to be arbitrated by a single arbitrator appointed
pursuant to such rules, or (ii) terminate this Agreement by written notice given
to Seller within five (5) business days after the expiration of the cure period
or Seller's notice of election not to cure such Material Misrepresentations and
Changed Circumstances, as the case may be. In the event this Agreement is so
terminated by Purchaser, the parties hereto shall be released from all further
obligations and liabilities hereunder, and Purchaser shall be refunded any sums
deposited with Seller under this Agreement, and Seller shall pay to Purchaser
the net charges incurred by Purchaser for survey updates and for examination of
title to the Premises. Any Non-Material Misrepresentations and Changed
Circumstances shall not be waived by Purchaser and Purchaser shall be entitled
to a reduction in the Purchase Price at the Closing in an aggregate amount of
damages to Purchaser which would result, or which reasonably in good faith be
expected to result to Purchaser by reason of any Non-Material Misrepresentations
and Changed Circumstances, together with Bring-Down Damages and any uncured
claims against or obligations of Seller pursuant to Sections 12.1, 12.4 and
12.5, up to $10,000,000 in the aggregate of such damages, determined in the
manner hereinabove set forth for determining a reduction in the Purchase Price
for Material Misrepresentations and Changed Circumstances.
8.18. References in this Section 8 or elsewhere in this Agreement to
"Seller's actual knowledge" means any state of facts of which any of the
following have actual knowledge: (i) Seller's senior officers above the level
of vice president, its directors or members of its executive committee, or (ii)
the officers of Seller's Real Estate Management Department responsible for the
management of the Premises at the level of vice president and above (including
the officer responsible for day-to-day management of the Premises), or (iii)
Xxxxx X. Xxxxxx or Xxxxx Xxxxxxxxxx.
8.19. At Closing Seller shall provide a certificate dated as of the
Closing Date (the "Bring-Down Certificate") of an authorized officer of Seller
-----------------------
certifying (a) to the correctness of the warranties and representations in
Sections 8.1 through 8.5, 8.7.2(ii) and 8.13 and (b) whether and to the extent
that any of the warranties and representations in Sections 8.6, 8.7.6, 8.7.8,
8.8, 8.9 or 8.10(a) are not correct on and as of the Closing Date, and to the
extent such certificate discloses that any such warranties or representations
are not correct on and as of the Closing
-38-
Date, such disclosures shall be deemed a Misrepresentation of Seller for
purposes of this Agreement, and (c) as to whether and how, by reason of any
change of circumstance occurring between the date hereof and the Closing Date
(other than a change of circumstances expressly provided for in and permitted by
this Agreement) any of the other warranties and representations of Seller made
in Article 8 are not true and correct on and as of the Closing Date as if made
on and as of the Closing Date, except that as to Sections 8.12 and 8.15 the
certificate need only refer to such changed circumstances which would have a
material adverse affect on the use and operation of the Premises from the manner
in which the Premises are presently used and operated (such changes in such
other warranties and representations set forth in such certificate, except as to
Section 8.11 [as to which the provisions of Section 12.7 shall govern and
control] and as to Sections 8.14 and 8.16 [as to which the provisions of Section
12.5 shall govern and control] and as to any mechanics liens referred to in
Section 12.6 [as to which the provisions of Section 12.6 shall govern and
control] and as to Sections 8.7.1(i) and 8.7.3 [as to which the provisions of
Section 6.5.1 shall govern and control] are referred to as ("Changed
--------
Circumstances")). The amount of damages to Purchaser which would result, or
----------------
could reasonably in good faith be expected to result to Purchaser by reason of
the Changed Circumstances as set forth in the Bring-Down Certificate, when
divided by two (2), are referred to as "Bring-Down Damages".
-------------------
8.20. Notwithstanding anything to the contrary contained in this
Agreement, the warranties and representations of Seller set forth in this
Article 8 and in the Bring-Down Certificate shall survive the delivery of the
deed hereunder for a period of one (1) year after the Closing Date (except (i)
for those warranties and representations in Section 8.6, which shall survive the
Closing without any time limitation, and (ii) as may be otherwise limited by
Section 8.22 hereof).
8.21. Any statement made by Seller in a certificate by Seller
delivered at the Closing pursuant to Section 4.1.7 shall be deemed for purposes
of this Article 8 to be a separate representation and warranty of Seller
hereunder made pursuant to this Article 8, which shall survive the delivery of
the deed hereunder for a period of one (1) year after the Closing Date except
(a) for those statements in xxxxxxxxxx 0, 0, 0, 0(x), (x), (x) and (h) of such
certificate which shall survive the Closing without any time limitation, and (b)
as may be otherwise limited by Section 8.22 hereof.
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8.22. Notwithstanding anything to the contrary contained in this
Section 8 or in any indemnity to be made by Seller in any of the Seller's
Documents, if any such warranty, representation or indemnity of Seller shall
relate" to a matter as to which a tenant is estopped pursuant to the provisions
of any tenant estoppel certificate signed by said tenant, said warranty,
representation and indemnity of Seller to the extent thereof shall not survive
the Closing and the delivery of the deed hereunder; provided however, that
nothing contained in the foregoing provision of this sentence shall be construed
or interpreted as limiting, restricting, affecting or extinguishing Seller's
representation and warranty set forth in the first, second and third sentences
of Section 8.6 hereof respecting the accuracy and completeness of the content
and substance (i.e. the terms, provisions, covenants and conditions) of the
instruments, documents and/or other writings comprising each of the Space Leases
and the Bankers Lease, which representation and warranty made by Seller in the
first, second and third sentences of Section 8.6 hereof shall survive the
Closing and delivery of the deed hereunder without limitation in time. It is
further understood and agreed for the purposes of the previous sentence, that
the provisions of Sections 8.7.1, 8.7.3 and 8.7.6 are each not a matter as to
which a tenant is estopped pursuant to such Estoppel Certificate. Furthermore,
except as set forth in Section 8.17, Seller shall have no liability in
connection with this Agreement by reason of an inaccuracy of a representation or
warranty, if and to the extent that such inaccuracy is in fact disclosed in a
notice by Seller to Purchaser, at or prior to the Closing and Purchaser elects,
nevertheless, to close title hereunder.
8.23. For the purpose of this Section 8, "survive delivery of the
deed hereunder for a period of one (1) year after the Closing Date" shall mean
and require that Purchaser shall commence a lawsuit against Seller on the basis
of such representation or warranty in a court of competent jurisdiction within
one (1) year from the Closing Date.
9. No Other Representations
------------------------
9.1.1. Purchaser affirms that, except as expressly provided for
in this Agreement, Seller has not made nor has Purchaser relied upon any
representation, warranty or promise with respect to the subject matter of this
Agreement, including, without limitation, any warranties or representations,
express or implied, as to (a) the value, use, tax status or physical condition
of the Premises, equipment or property, or any part hereof, repairs thereto,
income therefrom, expenses
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of maintenance or operation thereof, or as to the accuracy of the survey or
plans thereof, (b) the adequacy of any plans, specifications or site plans for
the Premises or their compliance with law, (c) any leases or tenancies of any
part of the Premises, or rental controls or regulations affecting the Premises,
(d) the potential qualification of the Premises for any and all benefits
conferred by federal, state or municipal laws, whether for subsidies, special
real estate tax treatment, insurance, mortgages, or any other benefits, whether
similar or dissimilar to those enumerated, (e) the availability of any financing
for the purchase, alteration or operation of the Premises from any source,
including but not limited to State, City or Federal government or any
institutional lender, (f) the applicability or effect of or compliance with any
building, subdivision, land sales, securities, ecology, environmental protection
and like laws, ordinances, rules and regulations of governmental authorities,
including those of any and all regulatory agencies and administrative officials
having or asserting jurisdiction over the Premises, (g) habitability,
merchantability or fitness for a particular purpose, (h) title, (i) latent or
patent physical or environmental conditions, (j) valuation, or (k) any other
matter or thing relating to the Premises.
9.1.2. Purchaser has had an opportunity to investigate the
Premises and the books and records pertaining to the Premises and such other
matters it has deemed necessary or appropriate. Without limiting the generality
of the foregoing, Purchaser has examined the Premises and agrees to accept them
"as is" and in their present condition, subject to reasonable wear and tear
prior to the Closing and subject to those matters herein specified, including,
without limitation, Purchaser's reliance upon the survivability pursuant to the
provisions of this Agreement of Seller's representations and warranties
expressly made as of the date of this Agreement and to be remade on the Closing
Date. Purchaser represents to Seller that Purchaser has conducted, or will
conduct prior to Closing, such investigations of the Premises, including but not
limited to, the physical and environmental conditions thereof, as Purchaser
deems necessary to satisfy itself as to the condition of the Premises and the
existence or nonexistence or curative action to be taken with respect to any
hazardous or toxic substances on or discharged from the Premises; and without
derogating or otherwise limiting Seller's representations, warranties and
covenants expressly made in this Agreement, Purchaser will rely upon such
investigations and not upon any information (including specifically, without
limitation, any offering memorandum or property information packages
-41-
distributed with respect to the Premises) provided by or on behalf of Seller or
its agents or employees with respect thereto, other than such representations,
warranties and covenants of Seller as are expressly set forth in this Agreement.
Notwithstanding the foregoing, with respect to the claim disclosed to Purchaser
pursuant to Section 8.12 as to 000 Xxxxxxx Xxxxxx, in the event that the
reasonable actual out-of-pocket cost incurred by Purchaser to repair the damages
referred to in such claim, on a one-time basis, shall exceed $100,000, then
Seller shall pay to Purchaser, within twenty (20) days after demand therefor,
accompanied by documentation reasonably supporting Purchaser's costs, one-half
(1/2) of such documented reasonable actual out-of-pocket costs in excess of
$100,000. The provisions of the previous sentence shall survive the closing and
the delivery of the deed hereunder.
9.1.3. Upon the Closing, except as otherwise expressly provided
in this Agreement, Purchaser shall assume the risk that adverse matters,
including but not limited to, construction defects and adverse physical and
environmental conditions, may not have been revealed by Purchaser's
investigations, and Purchaser, upon Closing, shall, except as otherwise
expressly provided in this Agreement, be deemed to have waived, relinquished and
released Seller (and Seller's officers, directors, and employees) from and
against any and all claims, demands, causes of action (including causes of
action in tort), losses, damages, liabilities, costs and expenses (including
attorneys' fees and court costs) of any and every kind or character, known or
unknown, which Purchaser might have asserted or alleged against Seller (and
Seller's officers, directors, and employees) at any time by reason of or arising
out of any latent or patent construction defects or physical conditions,
violations of any applicable laws (including, without limitation, any
environmental laws) and any and all other acts, omissions, events, circumstances
or matters regarding the Premises other than for the fraudulent misconduct of
Seller, its officers, directors and employees. Purchaser agrees that should any
cleanup, remediation or removal of hazardous substances or other environmental
conditions on the Premises be required after the date of Closing, such cleanup,
removal or remediation shall be the responsibility of and shall be performed at
the sole cost and expense of Purchaser. Notwithstanding the foregoing
provisions, nothing set forth in this Section 9.1.3 shall be interpreted or
construed as limiting, restricting, extinguishing or otherwise affecting
Seller's representations and warranties made in this Agreement or the
survivability thereof for the time limitation herein provided.
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9.1.4. Except as otherwise provided in this Agreement, no
representations, warranties, covenants or other obligations of Seller set forth
in this Agreement shall survive the delivery of the deed or the Closing of title
hereunder, and, except as to representations and warranties which survive the
Closing, no action based thereon shall be commenced after the Closing. In any
event, the acceptance by Purchaser of a deed conveying the Premises shall
constitute an acknowledgment by Purchaser that all obligations of Seller in
respect of the Premises or otherwise set forth in this Agreement and required to
be performed as of the Closing Date have been discharged in full; and upon such
acceptance, Seller shall be released from any and all such obligations by reason
of this Agreement, except only such obligations, if any, as are pursuant to the
express provisions of this Agreement to survive the delivery of the deed or the
Closing of title hereunder.
9.2. The Seller is not liable or bound in any manner by any verbal or
written statements, representations, real estate broker's "set-ups" or
information pertaining to the Premises furnished by any real estate broker or
other person, unless the same are specifically set forth herein.
9.3. Seller's existing insurance policies covering the Premises are
blanket policies. Purchaser acknowledges that such policies are not to be
assigned to Purchaser hereunder.
9.4. Seller makes no warranty or representation as to the validity or
enforceability of the Space Leases, as to any tenant's compliance or non-
compliance with the terms thereof, or as to the terms of any occupancy
thereunder, except as set forth in Sections 8.6 and 8.7 hereof.
10. Space Leases
------------
10.1. After the date of this Agreement, Seller shall not, without
Purchaser's prior written consent in each instance, which consent shall not be
unreasonably withheld or delayed and shall be given or denied, with the reasons
for such denial, within the applicable period specified in Section 10.2 hereof,
(a) enter into a new lease for space in the Premises which is presently vacant
or which may become vacant, or extend or renew any now existing Space Lease,
except pursuant to the exercise by a tenant of a right or option to enter into a
new lease, extend, renew or lease, or right of first offer or similar right
contained in such tenant's existing Space Lease (a "New Lease") or (b) consent
----------
to an assignment or subletting as to any Space Lease as to
-43-
which Seller's consent is required and for which the conditions for Seller not
to unreasonably withhold consent have not been satisfied (the "Assignment or
-------------
Subletting"). Seller shall furnish Purchaser with all information in Seller's
------------
possession or required to be delivered to Seller under the applicable Space
Lease or New Lease regarding such proposed New Lease or Assignment or
Subletting, reasonably necessary to enable Purchaser to make informed decisions
including in respect of a "New Lease" the form of "New Lease" being proposed for
execution. Notwithstanding anything to the contrary contained in the previous
provisions of this Section, Purchaser hereby approves of (a) the terms of the
proposed "New Leases" set forth and described in Exhibit H annexed hereto, if
any, so that any such New Lease which Seller desires to enter into in accordance
with the provisions of this sentence shall not require Purchaser's prior written
consent as to the financial and other terms set forth and described in Exhibit
H, but Purchaser's consent shall be required as to the form of the New Lease
being proposed for execution prior to its execution and delivery by the tenant
and Seller, in its capacity as landlord thereunder. Seller shall deliver to
Purchaser a true and complete copy of each such New Lease or Assignment or
Subletting, if any, promptly after the execution and delivery thereof.
10.1.1. Seller shall keep accurate records of all of the
following types of expenses (collectively, "Expenses") incurred or payable by
---------
Seller in connection with any New Lease: (a) brokerage commissions and fees to
effect such leasing transaction, (b) expenses incurred for demolition, asbestos
abatement, repairs, improvements, equipment, painting, decorating, partitioning
and other items to satisfy the tenant's requirements with regard to such leasing
transactions, (c) reimbursements to the tenant for the cost of any of the items
described in the preceding clause (b), (d) legal fees for services in connection
with the preparation of documents and other services rendered in connection with
the effectuation of the leasing transaction, (e) without duplication of the
foregoing, the obligations to reimburse the tenant for its initial tenant
installations or improvements and (f) expenses incurred for the purpose of
satisfying or terminating the obligations of a tenant under a New Lease to a
landlord under another lease (whether or not such other lease covers space in
the Premises). If, prior to the Closing, Seller shall have entered into a New
Lease in accordance with the provisions of Section 10.1 above, at the Closing,
(x) Purchaser shall reimburse Seller in the amount of all Expenses theretofore
paid for or incurred by Seller, and (y) Seller shall credit Purchaser in the
amount of any Rents or Additional Rents, including
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prepaid Rents, and Security Deposits, received by Seller under the New Lease in
excess of a per diem amount for each day of the term of the New Lease through
the day prior to the Closing based upon Eighteen Dollars ($18.00) per annum per
rentable square foot of the New Lease. Seller shall make available to Purchaser
all records, bills, vouchers and other data in such Seller's control verifying
such Expenses and the payment thereof.
10.1.2. Nothing herein shall be deemed to create any obligation
on Seller's part to enter into any "New Lease" for space which is presently
vacant or which may become vacant.
10.2. With respect to any matter to be submitted to Purchaser for its
consent pursuant to Sections 10.1, 10.3 or 10.4 hereof, Purchaser shall consent
or deny consent in writing within five (5) business days after receipt by
Purchaser of Seller's notice thereof. If Purchaser's denial or objection is not
given to Seller within such time period, Purchaser shall be deemed to have
granted its approval.
10.3. The right and privilege is reserved to Seller to institute
summary proceedings against any tenant of a Space Lease for any material default
or failure to perform by any such tenant prior to the time of the Closing
provided Purchaser is given prior written notice of Seller's intent to commence
such proceedings and Purchaser has consented thereto, which consent shall not be
unreasonably withheld or delayed if Seller's rights and remedies under the Space
Lease would be prejudiced if the Closing were not to occur prior to the Closing
Date contemplated by this Agreement. It is agreed that no representations have
been made and no responsibility is assumed by Seller with respect to the
continued occupancy of the Premises, or any part or parts thereof, by any tenant
or tenants now or hereafter in possession.
10.4. Seller shall not prior to the Closing Date (a) modify in any
respect or cancel any of the Space Leases or New Leases, (b) accept a surrender
of any Space Lease or New Lease except pursuant to any right or option of tenant
to do so contained in the Space Lease or New Lease, (c) terminate any Space
Lease or New Lease except as provided in Section 10.3, or (d) extend, renew,
replace or modify any Service Contract or enter into a new Service Contract
except (x) with the Purchaser's prior written consent, which consent shall not
be unreasonably withheld or delayed or (y) in the ordinary course of business,
on a good faith, arms-length basis and in the case of a new Service Contract if
the applicable Service Contract can be terminated by the
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owner of the Premises without penalty on not more than thirty (30) days' notice.
Subject to the foregoing provisions of this Section and without limiting any
other provision of this Agreement, Seller may, at any time and from time to time
prior to the Closing Date in the ordinary course of business (x) enforce (by
legal process, agreement or otherwise) or decline to enforce any existing or
future Space Lease, New Lease or Service Contract upon any breach of obligation
by any party thereto, provided that Seller shall use good faith efforts to keep
Purchaser advised with respect thereto, and subject to the provisions of Section
10.3; and (y) otherwise operate the Premises and improvements thereon in the
normal course of business; provided, however, except as may be required by
applicable law (and as limited in Section 12.5 hereof) or by the terms and
provisions of any Space Lease or New Lease (to the extent such obligation is not
assumed by Purchaser), that Seller shall not be obligated to make any capital
improvement or replacement or to replace any Equipment depleted in the ordinary
course of Seller's operation of the Premises, and Purchaser shall not be
entitled to decline to consummate any transaction contemplated herein or to
receive any abatement or other damages or compensation by reason of any act or
transaction hereinbefore in this sentence described.
10.5. Seller shall use reasonable efforts (but without obligation to
incur any material cost or expense or to pursue any remedy it may have against a
tenant for its failure to comply) to obtain and deliver to Purchaser prior to
Closing, a written estoppel certificate in the form of Exhibit L attached hereto
and made a part hereof signed by each tenant occupying space at the Premises.
Seller shall furnish to Purchaser all correspondence and other written
instruments obtained from such tenants in response to such request. the signed
certificates are referred to herein as the "Estoppel Certificates".
-----------------------
11. Bankers Lease; Building Management Office Sublease
--------------------------------------------------
11.1. Prior hereto Seller executed and delivered, as landlord and
tenant, without merger, the agreement of lease (the "Initial Bankers Lease"),
---------------------
covering a portion of the Premises, in the form previously delivered by Seller
to Purchaser. At the Closing, and immediately prior to delivery of the deed,
Seller shall execute as landlord and tenant, without merger of estates, an
Amended and Restated Bankers Lease in the form of Exhibit M annexed hereto and
made a part hereof (such Initial Bankers Lease and Amended and Restated Bankers
Lease, collectively, the "Bankers
-------
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Lease"). At the Closing Seller, as landlord, shall assign to Purchaser and
-----
Purchaser shall assume, pursuant to the Assignment and Assumption Agreement in
the form of Exhibit K-l the Bankers Lease. Purchaser and Seller shall, at the
request of either party, also execute, acknowledge and deliver a memorandum of
the Bankers Lease in form for recording, in the form of Exhibit N annexed
hereto. If at the Closing the fee of the Premises is or contemporaneously with
the Closing shall be subject to a mortgage under which the Purchaser is
mortgagor, which Purchaser acknowledges must be a mortgage permitted by Article
31 of the Bankers Lease, the Purchaser shall obtain and deliver to Seller, as
tenant under the Bankers Lease, a subordination, non-disturbance and attornment
agreement in recordable form in favor of Seller executed and acknowledged by
said mortgagee which shall at the Closing be executed by Purchaser as landlord
under the Bankers Lease, and Seller, as tenant under the Bankers Lease, in the
form of Exhibit T attached hereto.
11.2. Seller represents and agrees that, with respect to the Bankers
Lease, it will at the Closing execute and deliver to Purchaser its certificate
affirming that, as of the Closing Date, the representations contained in the
first three sentences of Section 8.6 shall be true and correct as to the Bankers
Lease, that Seller, in its capacity as tenant under the Bankers Lease, has
accepted possession of the Demised Premises thereunder, that the Bankers Lease
is in full force and effect and no rent under the Bankers Lease has been prepaid
for more than one (1) month in advance of its due date. Such representations
shall survive the Closing without time limitation. The assignment of the
Bankers Lease to Purchaser shall constitute Seller's agreement, warranty and
representation to Purchaser (which shall survive the Closing and the delivery of
such Bankers Lease assignment without limitation in time) that, if and to the
extent that, prior to the Closing and assignment to Purchaser of the Bankers
Lease, Seller, in its capacity as both landlord and tenant under the Bankers
Lease, would have had the right to assert the existence of any of the matters to
which reference is made in the succeeding clauses (i), (ii) and (iii) of this
sentence, Seller does hereby waive any right to assert that there exists as of
the Closing Date, any (i) defaults, defenses, counterclaims, set-of fs, or
offsets against the Rents and Additional Rents reserved under the Bankers Lease,
or (ii) any default or event which, with the giving of notice or lapse of time,
or both, would constitute an event of default by landlord under the Bankers
Lease, including, without limitation, landlord defaults for which the tenant
under the Bankers Lease may exercise remedies of self-help or terminate the
Bankers Lease, or (iii) or any default or event which, with the
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giving of notice or lapse of time, or both, would constitute an event of default
by tenant under the Bankers Lease; provided that all obligations of the landlord
under the Bankers Lease shall be performed and observed by Purchaser as landlord
from and after the Closing, as provided in the Bankers Lease and the Assignment
and Assumption Agreement to be executed and delivered at Closing in the form
annexed hereto as Exhibit K-l, and tenant under the Bankers Lease shall not be
estopped or prevented hereby or thereby from asserting or enforcing any rights
or remedies of tenant under the Bankers Lease as to such prospective obligations
of landlord to be performed and observed by Landlord under the Bankers Lease
from and after the Closing Date.
11.3. At the Closing, and immediately after the execution and
delivery of the deed, Seller shall execute, as sublandlord, and Purchaser shall
execute, as subtenant, a sublease of the Building Management Office, in this
Agreement called the "Building Management Office Sublease", in the form of
-----------------------------------
Exhibit 0 annexed hereto.
12. Closing Objections
------------------
12.1. If Seller shall be unable to convey to Purchaser title to the
Premises or to deliver possession of the Premises in accordance with the
provisions of this Agreement, or otherwise comply with the provisions of this
Agreement, unless created or caused by any act or omission of Purchaser, Seller
shall use reasonable efforts to remove any defects in title or to deliver
possession as provided herein or otherwise comply with the provisions of this
Agreement and the Closing Date shall be extended for a period of up to ninety
(90) days in order to do so; provided, however, that Seller shall not be
required to expend or incur obligations in excess of $10,000,000 in the
aggregate (inclusive of any sums expended or obligations incurred pursuant to
Section 8.17, Section 12.4 and Section 12.5 hereof) provided, however, that this
limit shall not apply to the removal of mortgages securing the payment of money
or encumbrances voluntarily created by Seller after the date hereof, as to which
there shall be no monetary limit. If at the time of Closing (either as
originally established under this Agreement or as extended), Seller remains
unable to convey title or deliver possession of the Premises or otherwise comply
with the provisions of this Agreement, all as herein agreed and subject to the
terms hereof, Purchaser shall have the option exercisable within five (5)
business days after the expiration of such extended period of either (a)
accepting the Premises with such title or in such condition as Seller can
deliver and paying therefor the Purchase Price and all other amounts, if any,
owed pursuant to this Agreement
-48-
without abatement or deduction, except as otherwise provided in Section 8.17
hereof, or (b) by delivery of written notice to Seller terminating this
Agreement. Upon such termination, the deposit and all interest accrued thereon
shall be promptly refunded by Seller to Purchaser, and there shall be paid by
Seller to Purchaser such survey costs and title examination charges as have been
incurred by Purchaser, whereupon, upon such payments being made by Seller, all
rights, duties and obligations of Seller and Purchaser under this Agreement
shall terminate without recourse and this Agreement shall become null and void.
The existence of any of the conditions to which Purchaser agrees to take subject
or as to which Purchaser agrees it shall not raise an objection under this
Agreement shall not be deemed or construed to render Seller's title unmarketable
or not in compliance with this Agreement, Purchaser shall not have the right to
refuse to take title by reason thereof, and the Purchase Price shall not in any
respect be reduced nor shall Purchaser be entitled to damages by reason thereof
(except as provided in Section 8.17).
12.2. The Premises shall be sold and are to be conveyed subject to
the following matters, none of which shall be objections to title:
(a) Any state of facts which a current and accurate survey of
the Premises might disclose, provided that such facts confirm the state of facts
shown on the Xxxxxx-X.X. Xxxxxxx survey referred to in the next sentence and the
existence of any additional facts disclosed by such survey do not render the
title to the Premises unmarketable. Seller has furnished to Purchaser a copy of
a survey of the Premises made by Xxxx X. Xxxxxx- X.X. Xxxxxxx, Inc. originally
dated November 14, 1962 and redated May 27, 1997 and Purchaser has caused
Seller's survey to be remade or redated as of July 24, 1997. For the purposes of
this Agreement, none of the facts shown on such survey shall be deemed to render
title unmarketable, and Purchaser shall accept title subject thereto.
(b) Zoning regulations and ordinances and all variances issued
thereunder and building restrictions and regulations affecting the Premises on
the date of delivery of the deed hereunder.
(c) Consents by Seller or by any former owner of the Premises
for the erection of any structure or structures, on, under or above any street
or streets on which the Premises may abut provided such location of any
structure or structures does not render title to the Premises unmarketable.
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(d) The right of governmental or municipal authorities to
revoke licenses for or to require the removal of any vaults which may be beyond
the building lines or under sidewalks.
(e) Rights and easements, if any, relating to the construction
and maintenance, in connection with any telephone company or public utility, of
wires, poles, pipes, conduits and appurtenances thereto, on, in, under or across
the Premises, provided such rights and easements do not materially and adversely
affect the continued maintenance, use or operation of the Premises as currently
maintained, used and operated.
(f) Covenants, restrictions, easements, agreements, rights-of-
way and encroachments (i) relating solely to the "Retained Space" or "Retained
-------------- --------
Property" as referred to in item 3 of Exhibit B, which do not in any way affect
--------
or impair the rights of Purchaser or increase the costs to Purchaser, in respect
of the exercise by Purchaser of its rights and easements in the "Retained Space"
--------------
or "Retained Property", and which has no affect or impact upon the "Conveyed
----------------- --------
Property" as referred to in item 3 of Exhibit B, and as to which either Chicago
--------
Title Insurance Company or Purchaser's title company is willing in writing to
affirmatively insure Purchaser to such effect in Purchaser's title insurance
policy, and (ii) as are set forth and described in Exhibit B. For purposes of
this Agreement, the covenants, restrictions, easements, agreements, rights of
way and encroachments set forth and described in Exhibit B attached hereto and
made a part hereof shall be deemed not to be title objections and Purchaser
shall accept title subject thereto.
(g) Unpaid liens not yet due and payable for taxes, business
improvement district charges, electric generator tax, public assembly charges,
water charges and sewer rents, subject, however, to apportionment thereof, as
herein provided.
(h) Any and all assessments becoming liens subsequent to the
date hereof subject, however, to apportionment as herein provided.
(i) All building, subdivision, land sales, securities, ecology,
environmental protection and like laws, ordinances, rules and regulations of
governmental authorities affecting the Premises, including those of any and all
regulatory agencies and administrative officials having or asserting
jurisdiction over the Premises.
(j) The Space Leases and New Leases
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and all subleases and subtenancies by, through or under the Space Leases or New
Leases.
(k) The Bankers Lease.
(1) The standard exceptions as are found in an ALTA Owner's
Policy of Title Insurance modified so as to exclude from exceptions to coverage
(1) taxes, tax liens, tax sale, water rates, sewer and assessments due and
payable on the Closing Date, (2) mechanics' and materialmen's liens other than
those referred to in (m) below, (3) the general survey exception, and (4) rights
of tenants or persons in possession, other than as tenants only.
(m) Subject to the provisions of Section 12.6, financing
statements, chattel mortgages, notices of mechanic's liens or other evidences of
lien filed against the Premises in respect of property owned by or work, labor
or services performed for or furnished to tenants or subtenants under any Space
Leases or New Lease.
12.3. Seller shall convey and Purchaser shall accept marketable fee
simple title, subject only to the matters set forth as title exceptions in this
Agreement. Purchaser shall accept a title insuring that, in the case of
encroachments not herein mentioned but shown on the survey of the Premises, the
building or the portions thereof which encroach may remain undisturbed so long
as the building stands; and unless omitted in Purchaser's title insurance
policy, in the case of judgments or mechanics liens disclosed by the Title
Report, that Chicago Title Insurance Company or the Purchaser's title insurance
company is willing in writing to affirmatively insure that collection will not
be enforced against the Premises.
12.4. Purchaser has reviewed the examination of the title to the
Premises made by Chicago Title Insurance Company dated June 25, 1997 as amended
through August 15, 1997 Title No. 9701-00151 (the "Title Report"). Subject to
------------
the succeeding provisions of this sentence, Purchaser is satisfied with Schedule
B to the Title Report and none of the matters shown on or reflected in said
Schedule B shall constitute an objection to title hereunder provided that, at or
prior to the Closing, (y) exceptions lettered A, B, C and D to Schedule X-x
thereof shall be modified consistent with the provisions of Section 12.2(1)
hereof and (z) exceptions numbered 11, 13, 15, 16, 17, 18, 19, 20, 21, 23, 25
and 26 shall be omitted such that the same will not appear as Schedule B
exceptions to title in the ALTA Owner's Policy of Title Insurance to be obtained
by
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Purchaser at the Closing (or in the case of number 15 and 18 that Chicago Title
Insurance Company or the Purchaser's title insurance company is willing in
writing to affirmatively insure that collection will not be enforced against the
Premises). If any changes shall occur in the Title Report, Purchaser shall
within five (5) business days after being apprised thereof deliver to Seller and
its attorneys a written notice listing any objections (excluding objections to
title which have been waived by Purchaser hereinabove or which are created or
caused by any act or omission of Purchaser). If Purchaser shall fail to timely
give such notice, it shall be deemed that Purchaser had no objection thereto.
With respect to any objections to title set forth in such notice, Seller shall
have the same rights and obligations to cure and Purchaser shall have the same
option to accept title subject to such matters or to terminate this Agreement as
hereinabove provided in Section 12.1 hereof, which provisions shall be
applicable to and govern the rights of the parties hereto with respect to
changes (other than those referred to in clauses (y) and (z) of the second
sentence of this Section 12.4) occurring in the Title Report after the date of
this Agreement, provided, however, if Seller shall have no obligation to cure
such title defect pursuant to Section 12.1 and notifies Purchaser that Seller
does not intend to cure same, Purchaser may, as its sole and exclusive remedy,
within five (5) business days after receipt of Seller's notice, elect to accept
the Premises or terminate this Agreement in accordance with paragraphs (a) or
(b) of Section 12.1.
12.5. Except as hereinafter provided in this Section 12.5., (a) all
notes or notices of violations of law or governmental ordinances, orders or
requirements which were noted or issued by any governmental department, agency
or bureau having jurisdiction as to conditions affecting the Premises and (b)
all liens against the Premises pursuant to the Administrative Code of the City
of New York (hereinafter in this Section 12.5, "liens"), and (c) all notices
-----
from insurers or governmental boards, agencies or authorities referred to in
Sections 8.14 and 8.16 ("insurance or environmental claims") if applicable,
shall be removed or complied with by Seller if such violations or liens or
insurance or environmental claims were noted or issued, or attached to the
Premises or were received by Seller (x) prior to the date hereof or (y) after
the date hereof and prior to the Closing which materially impact the continuous
operation of the Premises in the manner in which it has been operated and could
not be remedied prior to a date when under the terms of the Space Leases and the
Bankers Lease the tenants under such leases are entitled to abatements or
termination by reason thereof.
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Seller shall adjourn the Closing for up to sixty (60) days for such purpose
(subject, however, to the provisions of Section 12.5.1 hereof). If such removal
or compliance has not been completed prior to the Closing, Seller shall
indemnify Purchaser at the Closing by agreement reasonably satisfactory to
Seller and Purchaser for the reasonably estimated unpaid cost to effect or
complete such removal or compliance of any such violations or liens or insurance
or environmental claims which Seller is obligated to remove or comply with
pursuant to the provisions of Section 12.5(x) plus onehalf (1/2) of the
reasonably estimated aggregate cost to remove or comply with any such violations
or liens or insurance or environmental claims which Seller is obligated to
remove or comply with pursuant to the provisions of Section 12.5(y) above, and
Purchaser shall be required to accept title to the Premises subject thereto.
Notwithstanding anything to the contrary hereinabove contained:
12.5.1. If the reasonably estimated aggregate cost to remove or
comply with any such violations or liens or insurance or environmental claims
which Seller is required to remove or comply with pursuant to the provisions of
Section 12.5 (x) above plus one-half (1/2) of the reasonably estimated aggregate
cost to remove or comply with any such violations or liens or insurance or
environmental claims which Seller is obligated to remove or comply with pursuant
to the provisions of Section 12.5(y) above shall exceed $10,000,000 in the
aggregate (inclusive of any sums expended or obligations incurred pursuant to
Section 8.17, Section 12.1 and Section 12.4 hereof), Seller shall have the right
to cancel this Agreement, in which event the sole liability of Seller shall be
as set forth in Section 12.1 and this Agreement shall be terminated and be of no
further force or effect, unless Purchaser within five (5) business days after
receipt of notice of the exercise by Seller of its option to cancel this
Agreement elects by written notice given to Seller to accept title to the
Premises subject to all such violations, liens and insurance or environmental
claims, in which event Purchaser shall be entitled to a credit of an amount up
to $10,000,000 in the aggregate (inclusive of any credit provided to Purchaser
pursuant to Sections 8.17, 12.1 or 12.4 hereof) against the Purchase Price
payable at the Closing. For purposes of this Section 12.5, the cost to remove or
comply with any such violations or liens or insurance or environmental claims
shall be determined by a licensed general contractor selected by Seller and
reasonably satisfactory to Purchaser.
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12.5.2. Regardless of whether a violation has been noted or
issued prior to the date of this Agreement, Seller shall not be obligated to
remove or comply with any violations or liens or insurance or environmental
claims which a tenant is required to remove or comply with pursuant to the terms
of its Space Lease. Purchaser shall accept the Premises subject to all such
violations or liens or insurance or environmental claims without any liability
of Seller with respect thereto or any abatement of or credit against the
Purchase Price.
12.5.3. Purchaser agrees that all other notes or notices of
violation of law or municipal ordinances, orders or requirements or liens or
insurance or environmental claims not referred to in Sections 12.5 (x) and (y)
and 12.5.2 noted or issued by any county, city, state or federal department or
agency thereof, or any other governmental regulatory authority, shall not be
deemed objections to title, and that it will take title subject to the same, and
Seller from and after the Closing will have no responsibility or obligation in
respect of any such other violations or liens or insurance or environmental
claims affecting the Premises, whether before or at such Closing, or at any time
thereafter.
12.5.4. If required, Seller, upon written request by Purchaser,
shall promptly furnish to Purchaser written authorizations to make any necessary
searches for the purposes of determining whether notes or notices of violations
have been noted or issued with respect to the Premises or liens have attached
thereto.
12.6. Notwithstanding anything to the contrary in this Agreement
contained, if a contractor, materialman or supplier engaged directly or
indirectly by a tenant under any Space Lease shall file a mechanics lien prior
to the Closing, Seller shall have no obligation to discharge such mechanic's
lien or cause it to be omitted as an exception from title, and Purchaser may not
treat such mechanics lien as an objection to title and Purchaser shall take
title subject to same, provided, however, that if such a mechanics lien in an
amount in excess of $50,000 shall be filed and shall be a lien against the
Premises at the Closing (a) if Purchaser shall at or after the Closing elect to
obtain a surety bond to remove such mechanics lien as a lien against the
Premises, Seller shall at Closing or, thereafter within twenty (20) days after
demand by Purchaser, reimburse Purchaser for one-half (1/2) of the premium for
obtaining such bond, but Purchaser shall repay to Seller, if as and when repaid
by the tenant under the Space Lease, or otherwise, one-half (1/2) of the amount
of such premium so repaid, within twenty (20) days after Purchaser's
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receipt thereof, and (b) if after Purchaser has exercised all of its rights and
remedies under the Space Lease by reason of the filing of such mechanics lien,
such rights and remedies to be exercised in good faith and with all due
diligence, including, without limitation, seeking to obtain a judgment awarding
damages (provided that Purchaser may but shall not be obligated to evict the
tenant or terminate its Space Lease), and seeking to collect damages from the
tenant, Purchaser has incurred actual damages by reason of the filing of such
mechanics lien (exclusive of such bonding premium, attorney's fees and
disbursements), applying any recoveries first to its claim against the tenant
with respect to the mechanics lien, Seller will reimburse Purchaser for one-half
(1/2) of such reasonable actual damages, but not to exceed onehalf (1/2) of the
principal amount of such mechanics lien, within twenty (20) days after demand
therefor accompanied by documentation reasonably supporting Purchaser's damages.
The provisions of this Section 12.6 shall survive the Closing and the delivery
of deed.
12.7. The risk of loss or damage to the Premises by fire or other
casualty or taking by eminent domain until the delivery of the deed hereunder is
assumed by Seller. In the case of fire or other casualty or the taking of the
Premises or any part thereof by eminent domain, Seller shall promptly notify
Purchaser in writing thereof ("Seller's Notice"), and in such event the parties
---------------
agree as follows:
12.7.1. In the event of damage or taking (a) of a material part
of the Premises (herein deemed to be any taking or damage greater than
immaterial as defined below), or (b) where such damage or taking, whether
material or immaterial, would permit (i) the tenant under the Bankers Lease to
terminate the Bankers Lease or (ii) both of the tenants under the Xxxxxx Xxxx
Space Lease and the National Football League Space Lease to terminate their
respective Space Leases, by reason of (y) such casualty or taking event having
occurred, without regard to the estimated time required, as a consequence of
such event, for restoration, or (z) the estimated time required for restoration
to be completed under the Bankers Lease or such Space Lease (rather than the
actual time which such work takes to complete), unless prior to Seller's
delivery to Purchaser of Seller's Notice, a tenant under the Bankers Lease or
under such Space Lease(s) has in writing waived its rights or elected not to
terminate the Bankers Lease or such Space Lease(s) (Seller's Notice to include
the facts respecting such lease to enable Purchaser to make its succeeding
election), (but any such waiver or election shall not be deemed to relieve or
release the landlord under the Bankers Lease or such Space Lease from
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performance of any obligations to repair, restore, replace and/or rebuild
pursuant to the provisions of the Bankers Lease or such Space Lease), then,
Purchaser shall have the option, exercisable within ten (10) business days after
receipt of Seller's Notice, either to (a) declare this Agreement null and void
(in which event Seller shall refund Purchaser's downpayment, and neither party
shall have any further right or obligation to or against the other) or (b) to
accept the Premises in the condition in which they are left following such
damage or taking, with an abatement of the Purchase Price measured by the
proceeds of any insurance or condemnation award collected in excess of the
amounts, if any, expended by Seller for the repair or replacement of such damage
or taking, and in any case in which the proceeds (or award) have not been
collected by Seller at the time of Closing, an assignment by Seller of all
rights to the collection of any such net proceeds or award shall be in full
satisfaction and discharge of Seller's obligation with respect to the matters
referred to in this Section and Purchaser shall accept the Premises without
abatement of the Purchase Price.
12.7.2. In the event of damage or taking of an immaterial part of
the Premises this Agreement shall remain in full force and effect with an
abatement of the Purchase Price measured by the proceeds of any insurance or
condemnation award collected, in excess of the amounts, if any, expended by
Seller for the repair or replacement of such damage or taking, and in any case
in which the proceeds (or award) have not been collected by Seller at the time
of Closing, an assignment by Seller of all rights to the collection of any such
net proceeds or award shall be in full satisfaction and discharge of Seller's
obligations with respect to the matters referred to in this Section and
Purchaser shall accept the Premises without abatement of the Purchase Price.
12.7.3. An immaterial part of the Premises shall have been deemed
to have been taken or damaged if the cost of repair or replacement in the case
of fire or casualty or the value in the case of eminent domain, as the case may
be, shall be $10,000,000.00 or less (as determined by an insurance adjustor
selected by Seller and reasonably satisfactory to Purchaser).
12.7.4. In the event of fire or other casualty, Seller will in
good faith, but (so long as this Agreement shall be in full force and effect)
subject to Purchaser's approval not to be unreasonably withheld, adjust the loss
with the insurance carriers. As soon as the loss has been adjusted to the
satisfaction of Seller, but (so long as this Agreement shall be in full force
and effect) subject to Purchaser's approval not to be
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unreasonably withheld, Seller shall, if this Agreement has not been declared
null and void, at Purchaser's request (but Seller prior thereto without
Purchaser's approval may but shall have no obligation) commence the repair of
the damage.
12.8. In the event prior to the Closing Purchaser should default (or
any of its representations under this Agreement shall prove to be untrue in any
material respect) and such default or misrepresentation is not cured or remedied
within twenty (20) days after receipt of notice thereof given by Seller to
Purchaser, Seller as its sole and exclusive remedy at law or in equity shall
only have the right to terminate this Agreement and retain the downpayment as
liquidated damages. The parties hereto agree that the damages that Seller will
sustain as a result of any default or breach by Purchaser will be substantial
but will be difficult if not impossible to ascertain and therefore the parties
agree that in such event, Seller may keep the downpayment hereunder as and for
its liquidated damages and neither party shall have any further claim against
the other.
12.9. Subject to the provisions of Section 8.17, in the event prior
to Closing Seller should default (or any of its representations under this
Agreement shall prove to be Material Misrepresentations) and such default or
Material Misrepresentation is not cured or remedied within twenty (20) days
after receipt of notice thereof given by Purchaser to Seller or such greater
extended period as is expressly provided for in this Agreement, then Purchaser's
sole remedy shall be either (a) to terminate this Agreement and receive the
return of the downpayment and all interest accrued thereon, and Seller shall pay
to Purchaser such survey costs and the charges for examination of title as has
been incurred by Purchaser, which return shall operate to terminate this
Agreement and release Seller from any and all liability hereunder or (b) to
enforce specific performance of Seller's obligation hereunder, and Purchaser
agrees that Purchaser shall not and hereby waives any right to seek damages
against Seller.
13. Costs and Expenses
------------------
13.1. Seller shall pay all documentary stamps, deed recordation taxes
and all transfer taxes, if any, on the sale, provided for herein, except as
otherwise provided in Section 4.1.16. Purchaser shall pay all title insurance
premiums and recording and filing fees of whatever kind or nature, and the cost
of any survey except as otherwise provided herein, and all costs and expenses
relating to Purchaser's due diligence inspections. All other costs and expenses
incident to
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this transaction and the closing thereof shall be paid by the party incurring
same, including, without limitation, its own attorneys' fees.
14. Brokerage
---------
Purchaser represents and warrants that it has not dealt with any other
broker, finder or advisor other than Insigna/Xxxxxx X. Xxxxxx Co., Inc., which
acted as broker herein, and BT Securities Corporation which acted as advisor
herein, (collectively, the "Broker and Advisor") in connection with this
------------------
transaction. Each party hereto represents to the other that it has not dealt
with any broker, finder or advisor in connection with this Agreement and the
transactions contemplated hereby, other than the Broker and Advisor. Purchaser
and Seller agree to indemnify and hold the other free and harmless from all
losses, damages, costs and expenses (including attorneys' fees) that the other
may suffer as a result of claims made or suits brought by any broker, finder or
advisor other than the Broker and Advisor who shall claim to have introduced the
indemnifying party to this transaction or who shall claim to have dealt with or
had discussions with the indemnifying party with respect to this transaction.
Seller shall pay the commission or other compensation of the Broker and Advisor
pursuant to separate agreements with Seller. The provisions of this Section 14
shall survive the delivery of the deed hereunder or, if the Closing does not
occur, notwithstanding anything to the contrary contained in this Agreement, the
termination of this Agreement.
15. Notices
-------
15.1. Any notice pursuant to this Agreement shall be given in writing
by (a) personal delivery, or (b) reputable national overnight delivery service
with proof of delivery, or (c) United States Mail, postage prepaid, registered
or certified mail, return receipt requested, or (d) legible facsimile
transmission sent to the intended addressee at the address set forth below, or
to such address or to the attention of such other person as the addressee shall
have designated by written notice sent in accordance herewith, and shall be
deemed to have been given upon receipt or refusal to accept delivery, or, in the
case of facsimile transmission, as of the date of the transmission provided that
an original of such facsimile is also sent to the intended addressee by means
described in clauses (a), (b) or (c) above. Unless changed in accordance with
the preceding sentence, the addresses for notice given pursuant to this
Agreement shall be as follows:
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If to Seller:
Bankers Trust Company
Real Estate Management Department
000 Xxxxxxx Xxxxxx, Mail Stop 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx,
Vice President
Telecopier: (000) 000-0000
with a copy to:
Moses & Singer LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
If to Purchaser or the Company:
Boston Properties, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, President
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Van, Esq.
Telecopier: 000-000-0000
and an additional copy to:
Boston Properties Limited Partnership
c/o Boston Properties, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President
Telecopier: (000) 000-0000
16. Time of the Essence
-------------------
It is understood and agreed, any rule or law of equity to the contrary
notwithstanding, that time is of the essence of each and every provision of this
Agreement, whether or not so stated therein (except as to any rights to adjourn
the Closing Date as set forth in Sections 8.17 and 12.1 herein), except that
Seller and Purchaser may each adjourn the Closing once to a subsequent date for
any reason or no reason, so long as the adjournment of Seller or Purchaser does
not exceed
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four (4) business days, and the adjourned date shall also be a time of the
essence date.
17. Further Assurances
------------------
17.1. Each of the parties hereby agrees to execute, acknowledge (if
necessary) and deliver such other documents or instruments not inconsistent with
the provisions of this Agreement as the other may reasonably require from time
to time after the Closing to carry out the intents and purposes of this
Agreement. The party making the request agrees to pay all reasonable costs
associated therewith. This provision shall survive delivery of the deed.
18. Access to Records
-----------------
18.1. The Seller agrees to make available for Purchaser's examination
and duplication at Seller's offices from time to time during regular business
hours, promptly after the date hereof and for ninety (90) days subsequent to
Closing, all records, statements and accounts bearing on or relating to (a)
Rents and Additional Rents under the Space Leases and the collection or payment
thereof and (b) the ownership, operation, leasing, management and construction
of the Premises and expenditures made in connection therewith; provided,
however, Purchaser shall give Seller reasonable advance notice thereof and shall
conduct such examination in an manner so as not to interfere with the conduct of
Seller's business.
18.2. If any portion or the whole of the information above referred
to in this Section 18 is maintained by a third party, the applicable party
hereto shall direct such third party to make available to the other party hereto
the information at such third party's office in New York City, for the purpose
of reviewing and/or duplicating such information.
18.3. The provisions of this Article 18 shall survive the Closing and
delivery of the deed.
19. Successors and Assigns
----------------------
19.1. This Agreement shall be binding upon and inure to the benefit
of Seller and Purchaser and their respective legal representatives, designees,
successors and assigns, provided that, except as provided in the next sentence
or an assignment to an Affiliate of Seller, neither party may assign, pledge or
otherwise transfer its rights and obligations hereunder without the prior
written consent of the other party, which such party may withhold in its sole
discretion, and, without
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limiting either party's other rights and remedies, any such assignment, pledge
or transfer made without the prior written consent of the other party shall be
void and of no force and effect. Notwithstanding the foregoing provisions,
Seller may assign its rights and obligations under this Agreement to an
Affiliate of Seller without obtaining the prior written consent of Purchaser,
provided that (a) prompt notice thereof is given by Seller to Purchaser of such
assignment, identifying Seller's Affiliate by name and address, and explaining
the relationship by which such assignee is an Affiliate of Seller, and (b)
Bankers Trust Company shall guaranty the performance of the obligations of such
Affiliate under this Agreement and the Bankers Lease pursuant to the provisions
of a guaranty of this Agreement and the Bankers Lease, in each case, reasonably
satisfactory to Purchaser and its counsel. Notwithstanding the foregoing, at the
Closing Purchaser may collaterally assign its rights and remedies under this
Agreement which shall survive the Closing Date to a mortgagee referred to in the
last sentence of Section 11.1, to secure the mortgage loan referred to in such
sentence.
20. Gender and Number
-----------------
20.1. Whenever the context so requires, references herein to the
neuter gender shall include the masculine and/or feminine gender, and the
singular number shall include the plural.
21. Applicable Law
--------------
21.1. THIS AGREEMENT IS PERFORMABLE IN THE STATE OF NEW YORK AND
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
SUBSTANTIVE FEDERAL LAWS OF THE UNITED STATES AND THE LAWS OF SUCH STATE. SELLER
AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN THE CITY AND STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY
AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND
DETERMINED IN A STATE OR FEDERAL COURT SITTING IN THE CITY AND STATE OF NEW
YORK. PURCHASER AND SELLER AGREE THAT THE PROVISIONS OF THIS SECTION 21 SHALL
SURVIVE THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
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22. Construction
------------
22.1. The parties acknowledge that the parties and their counsel have
reviewed and revised this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any exhibits or
amendments hereto.
23. Miscellaneous
-------------
23.1. Except as provided in the last sentence of Section 19.1, the
provisions of this Agreement and of the documents to be executed and delivered
at Closing are and will be for the benefit of Seller and Purchaser only and are
not for the benefit of any third party, and acc6rdingly, (except as aforesaid)
no third party shall have the right to enforce the provisions of this Agreement
or documents to be executed and delivered at Closing.
23.2. This Agreement and the instruments referred to herein embody
the entire agreement and understanding between the parties hereto relating to
the subject matter hereof and may not be amended, waived or discharged except by
an instrument in writing executed by the party against whom enforcement of such
amendment, waiver or discharge is sought.
23.3. Purchaser shall be entitled to and Seller shall deliver
possession of the Premises to Purchaser upon the Closing of this Agreement,
subject, however, to the Bankers Lease, the Space Leases, the New Leases and the
other matters described herein.
23.4. This Agreement shall not be binding or effective until
Purchaser and Seller have executed and delivered a counterpart of the same, each
of which shall constitute an original, but all of which taken together shall
constitute one agreement.
23.5. Neither Seller nor Purchaser shall record this Agreement or any
memorandum hereof.
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23.6. If any provision of this Agreement shall be held to be illegal,
unenforceable or inapplicable in any respect, each such holding shall not affect
the enforceability of any other provision of this Agreement under any other
circumstances.
23.7. The provisions of the confidentiality agreement dated June 4,
1997 between Seller and Purchaser and of July 22, 1997 between Seller and the
Company are hereby incorporated herein by reference and made a part hereof. All
books, records, documents or agreements of Seller inspected by or delivered to
Purchaser pursuant to this Agreement shall be subject to the provisions of such
confidentiality letter agreement. If the Closing does not occur for any reason
whatsoever, Purchaser shall return to Seller all copies of the foregoing
materials.
23.8. Seller and Purchaser shall cooperate concerning advertising and
similar publicity regarding the transaction, but this Section shall not
otherwise inhibit any such advertising or similar publicity or other disclosure
as to this transaction.
23.9. The West Building at the Premises (the "West Building") was
-------------
constructed by Xxxxxxx Xxxxxx in 1968. The Trust Under Article Sixth u/w/o
Xxxxxxx Xxxxxx (the "Trust"), as successor in interest to Xxxxxxx Xxxxxx, sold
-----
the West Building to Seller on May 25, 1994 Inscribed lettering is presently on
the exterior wall of the West Building reciting the name of Xxxxxxx Xxxxxx as
builder (the "Inscription"). Purchaser agrees that upon the purchase of the West
-----------
Building by Purchaser or any Affiliate of Purchaser, Purchaser and/or any
Affiliate which may own the West Building shall maintain such Inscription at its
present location for so long as the West Building stands, provided such
Inscription may be replaced with a similar Inscription or plaque, in the same or
a similar location, which replacement Inscription or plaque may refer to Xxxxxxx
Xxxxxx as builder and which may refer to the then owner or its affiliate, as
owner. In the event that Purchaser or its Affiliate shall sell their interest in
the West Building to a person or entity not affiliated with Purchaser, Purchaser
or its Affiliate shall request that such purchaser agree to continue to maintain
the Inscription or replacement therefor as provided in the previous paragraph.
However, Purchaser or its Affiliate shall have no liability to the Trust or any
of its trustees or beneficiaries or to
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Seller in the event such purchaser shall refuse for any reason whatsoever to
continue such agreement. If such purchaser continued such agreement, neither
Purchaser, its Affiliate, such purchaser or its successors and assigns shall
have any liability to the Trust or any of its trustees or beneficiaries or
Seller if such purchaser, its successors and assigns failed to carry out its
obligations under such agreement.
23.10. There are currently two (2) tenants (the "Holdover Tenants")
----------------
occupying space on the 26th floor of the East Building (the "26th Floor Space")
----------------
pursuant to Space Leases which are license agreements, which Space Leases are
due to expire on or before September 30, 1997. In the event that one or both of
such Holdover Tenants shall remain in occupancy in the 26th Floor Space for more
than five (5) days after the Closing Date, Seller shall pay to Purchaser the sum
of $ 1,122.85 for each day that one or both of such Holdover Tenant(s) shall
occupy any part of the 26th Floor Space until September 30, 1997, whereupon
Seller shall have no further liability to Purchaser with respect to such
Holdover Tenants. This provision shall survive delivery of the deed.
23.11. The captions and headings throughout this Agreement are for
convenience and reference only and they shall in no way be held or deemed to
define, modify or alter the meaning, scope or intent of any provision of this
Agreement. Words such as "herein," "hereinafter," "hereof" and "hereunder"
refer to this Agreement as a whole and not merely to the paragraph, Section or
other subdivision in which such words appear, unless the context otherwise
requires. The singular shall include the plural, and the masculine shall include
the feminine and the neuter, and visa versa, unless the context otherwise
requires. References to "Sections" are to Sections of this Agreement, unless
otherwise specifically provided.
23.12. Except as otherwise expressly provided and without waiver of
the provisions of Section 16 hereof, no delay or omission by any party hereto to
exercise any right or power occurring upon any noncompliance or failure of
performance by the other party under the provisions of this Agreement shall
impair any such right or power or be construed to be a waiver thereof. A waiver
by any party hereto of any of the terms, covenants, conditions or agreements
hereof to be performed by the other party shall not be construed to be a waiver
of any succeeding breach thereof or of any other term, covenant, condition or
agreement herein contained.
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23.13. This Agreement may be executed in several counterparts, each
of which shall be deemed an original, and all such counterparts shall together
constitute one and the same instrument.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SELLER:
BANKERS TRUST COMPANY
By: __________________________
Taxpayer ID No.: 00-0000000
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PURCHASER:
BOSTON PROPERTIES LIMITED
PARTNERSHIP
By: Boston Properties, Inc.,
its general partner
By: ________________________
Taxpayer ID No.: 00-0000000
----------
THE COMPANY (For the Purposes
of Sections 5.1, 7.6 through
7.10, 16 and 23.7 only):
BOSTON PROPERTIES, INC.
By: __________________________
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