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Exhibit 10.26
TOWER 45
OPTION AGREEMENT
This Option Agreement (the "AGREEMENT"), dated as of the 31st day of
July, 1997, is entered into by and between TOWER REALTY OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"), and XXXXXXX
TOWER 45, INC. (the "GRANTOR").
R E C I T A L S:
A. The Grantor owns a general partner interest in Tower 45 Associates
Limited Partnership, a Delaware limited partnership (the "PARTNERSHIP").
B. The Operating Partnership desires to purchase for cash and through a
contribution to capital from the Grantor, and the Grantor desires to grant to
the Operating Partnership, an option to acquire, on the terms and conditions set
forth herein, all interests owned by the Grantor in the Partnership as set forth
on Schedule A attached hereto and any other direct or indirect interests the
Grantor may have, whether now owned or hereinafter acquired, in the Partnership,
or in the properties owned by the Partnership (collectively, the "INTERESTS".)
C. The Operating Partnership desires to acquire the Interests in
connection with (i) the formation of Tower Realty Trust, Inc., a Maryland
corporation (the "COMPANY"), which intends to qualify as a real estate
investment trust and which is the sole general partner and a limited partner of
the Operating Partnership, and (ii) the proposed initial public offering (the
"IPO") and concurrent private placement (collectively, "OFFERINGS") of shares of
the Company's common stock, par value $0.01 per share ("COMMON STOCK").
NOW, THEREFORE, in consideration of ten dollars ($10.00) paid by the
Operating Partnership to the Grantor, these premises, the mutual covenants and
conditions set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Operating
Partnership and Grantor agree as follows:
ARTICLE I: THE OPTION
1.1 Grant of Option. The Grantor hereby irrevocably grants to the
Operating Partnership the right and option (the "OPTION") to purchase for cash
and through a contribution to the capital of the Operating Partnership all the
Grantor's right, title and interest in the Interests, including but not limited
to, the Interest set forth on Schedule A attached hereto, on the terms and
conditions set forth herein.
1.2 Term and Exercise of Option. The Option may be exercised by the
Operating Partnership at any time from and after the date hereof through 5:00
p.m. on December 31, 1997 (the "OPTION TERMINATION DATE"); provided, that if on
the Option Termination Date the Operating Partnership or the Grantor is
prohibited by applicable law, or the Operating Partnership or the Grantor is
subject to a stay, order, injunction, or similar limitation or any pending or
threatened action or proceeding to enjoin, restrain, prohibit or assess
substantial damages in respect of the exercise by the Operating Partnership of
the Option, then the Option may be exercised by the Operating Partnership during
the 10 business day period commencing on the first business day following the
removal of each such prohibition, stay, order, injunction, action, proceeding or
similar limitation in effect at that time. Subject to the foregoing, if the
Operating Partnership does not exercise the Option by the Option Termination
Date, such Option shall be deemed terminated and shall be of no further force or
effect and the Grantor shall have no further obligations hereunder.
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1.3 Acquisition Consideration. (a) The consideration (the "ACQUISITION
CONSIDERATION") to be received by each Grantor in respect of the contribution of
the Grantor's Interests to the Operating Partnership shall be an amount equal to
$100.00 (one hundred dollars). The Acquisition Consideration shall be paid in
the form of a combination of (i) cash and/or (ii) units of limited partnership
interest in the Operating Partnership ("OP UNITS"), in the percentages and
allocations set forth on Schedule B attached hereto. To the extent a percentage
of the Acquisition Consideration includes one or more OP Units, as set forth on
Schedule B, the number of OP Units the Grantor shall be entitled to receive upon
the exercise of the Option with respect to such percentage shall equal the
quotient of
(A) the amount of Acquisition Consideration to be
paid in OP Units, divided by
(B) the midpoint of the proposed per share offering
price for the shares of Common Stock as set forth in the final
preliminary prospectus included in the Company's Registration
Statement on Form S-11 prepared and filed with the Securities
and Exchange Commission in connection with the IPO.
1.4 Lock-Up Agreements. The OP Units to be issued to the Grantor
hereunder shall be subject to Lock-Up Agreements to be executed at the Closing
(as hereinafter defined) by the Operating Partnership and the Grantor,
substantially in the forms attached as Exhibits A and B attached hereto, whereby
the Grantor will not be permitted to transfer OP Units for up to two years after
the Closing, except as otherwise permitted under such agreement.
ARTICLE II: CLOSING PROCEDURES
2.1 Purchase of Interests. Upon the Operating Partnership's exercise of
the Option, the Grantor shall, in accordance with Section 2.2 hereof, transfer,
assign, and convey to the Operating Partnership and the Operating Partnership
shall accept as a contribution to its capital from the Grantor, all right, title
and interest in and to the Interests, free and clear of all Encumbrances (as
defined in Section 3.1(a)), in exchange for the Acquisition Consideration.
2.2 Closing; Conditions to Obligations. (a) (i) The Operating
Partnership shall exercise the Option by delivering to the Grantor a
notice (the "OPTION NOTICE"), which notice shall state the date (the
"CLOSING DATE") of the closing of the transactions contemplated by
Section 2.1 (the "CLOSING"), which date shall be no less than 10 days
and no more than 30 days following the date of such Option Notice.
(i) The Closing shall be held within the period specified in
the Option Notice at the offices of Battle Xxxxxx LLP, 75 East 55th
Street, New York, New York, or at the offices of the attorneys for the
lead underwriter of the IPO.
(ii) Following delivery of the Option Notice, the Operating
Partnership and the Grantor will at or prior to the Closing execute and
deliver all closing documents (the "CLOSING DOCUMENTS") required by the
Operating Partnership pursuant to Section 2.3 and, pending the Closing,
deposit such Closing Documents in escrow with Battle Xxxxxx, LLP as
escrow agent of the Operating Partnership (the "ESCROW AGENT").
(b) The Closing will occur simultaneously with the closing of the
Offerings (the "OFFERINGS CLOSING"); provided, that the Offerings Closing shall
be deemed to have occurred only if that portion of the net proceeds from the
Offerings which is to be contributed to the Operating Partnership by the Company
is sufficient, as determined by the Operating Partnership in its reasonable
discretion, to enable the Operating Partnership (i) to acquire all the
Interests, and (ii) to apply such portion of the net proceeds to acquire such
other properties or interests, to repay principal, interest and other amounts
due with respect to indebtedness and to meet such other obligations as may be
described in the Registration Statement on Form S-11 prepared and filed in
connection with the IPO (the "REGISTRATION STATEMENT"), as the same shall be in
effect on the day of the Offerings Closing.
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(c) The following deliveries shall be made at the Closing:
(i) the Operating Partnership shall cause to be delivered to
the Escrow Agent or its designee
(A) the Acquisition Consideration (any cash portion
of which shall be delivered in immediately available funds by
check or wire transfer),
(B) a certificate of the general partner of the
Operating Partnership (the "GENERAL PARTNER") certifying that
the Grantor has been or will be, effective as of the Closing,
admitted as a limited partner of the Operating Partnership and
that the Operating Partnership's books and records indicate or
will indicate that the Grantor is the holder of the number of
OP Units that Grantor is entitled to receive pursuant to
Section 1.3, and
(C) if such OP Units are to be represented by
certificates, a certificate or certificates in the name of the
Grantor representing the number of OP Units to which the
Grantor is entitled; and
(ii) upon receipt of the consideration set forth in clause (i)
above and the documents and deliveries required by Section 2.3, the
Escrow Agent will release the Closing Documents to the Operating
Partnership and deliver to the Grantor the Acquisition Consideration.
(d) Notwithstanding any other provision of this Agreement, the
Operating Partnership may, in its sole discretion, elect not to consummate the
contribution of all or any portion of the Interests as follows:
(i) in the event that the Grantor either identifies in its
Assignment as defined in and delivered pursuant to Section 2.3(a) a
breach of or other exception with respect to any of the
representations, warranties or covenants contained in Article III or
has otherwise breached this Agreement, or
(ii) in the event that all authorizations, consents or
approvals of any governmental or administrative agency or authority or
any third party necessary in order to consummate the contribution of
the Interests, or there exists an order or judgment enjoining,
restraining or prohibiting, or assessing substantial damages in respect
of such consummation, or there shall be any action or proceeding
instituted or threatened in writing to enjoin, restrain, prohibit or
assess substantial damages in respect of such consummation,
then, the Operating Partnership shall, in lieu of the delivery of the
Acquisition Consideration pursuant to clause (c)(i) above, either
(x) in the case of an election not to consummate the
contribution of all of the Interests, notify the Escrow Agent of such
election and direct the Escrow Agent to return the Grantor's Closing
Documents to the Grantor, or
(y) in all other cases, equitably adjust the delivery with
respect to the Grantor pursuant to clause (c)(i) above to reflect the
portion of the Grantor's Interests with respect to which the purchase
is actually being made (provided, that, in no event shall the
Acquisition Consideration, as adjusted hereunder, consist of less than
one OP Unit), which adjustment shall be determined in the Operating
Partnership's reasonable discretion, and shall in all events be binding
upon the Grantor.
(e) Except as the result of a default by the Grantor hereunder, if the
Closing does not occur within 30 days of the date of the Option Notice, then
neither the Operating Partnership nor the Grantor shall have any obligations
under the Closing Documents, the Closing Documents shall be deemed null and void
ab initio and the Operating Partnership will direct the Escrow Agent to destroy
the Closing Documents it holds. This Agreement shall thereafter
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remain in effect and the Operating Partnership may thereafter exercise the
Option again at any time before the Option Termination Date.
2.3 Documents to Be Delivered at the Closing. At or prior to the
Closing, the Grantor shall, directly or through the attorney-in-fact appointed
pursuant to Article V hereof, execute, acknowledge where deemed necessary or
desirable by the Operating Partnership, and deliver to the Escrow Agent, in
addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be
in the form attached hereto as Exhibit C attached hereto and shall contain a
warranty of title that the Grantor owns the Interests free and clear of all
Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and
warranties and the satisfaction of all covenants contained in Article
III hereof, or
(ii) if such reaffirmation cannot be made, identify those
representations, warranties and/or covenants contained in Article III
hereof which the Grantor can no longer make or comply with, represent
that the Grantor has used reasonable efforts to take such actions as
would permit the Grantor to make such representations and warranties
and/or to comply with such covenants, and reaffirm the accuracy of all
other representations and warranties and the satisfaction of all other
covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the
Grantor is a corporation, partnership, limited liability company or trust, a
certified copy of all necessary or appropriate corporate resolutions or
partnership, limited liability company or trust actions authorizing the
execution, delivery and performance by the Grantor of this Agreement and the
Closing Documents.
(c) If requested by the Operating Partnership in the case where the
Grantor is a corporation, partnership, limited liability company or trust, an
opinion from counsel for the Grantor in form and content reasonably acceptable
to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general
partnership, limited liability company or trust duly organized, validly
existing and in good standing under the laws of the state of its
organization and had and has all applicable power and authority to
execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of
this Agreement and the Closing Documents, and the transactions
contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the
Grantor's charter and/or bylaws, partnership agreement,
operating agreement and articles of organization or
declaration of trust, as applicable, or, to the knowledge of
such counsel, any indenture, deed of trust, mortgage, loan or
credit agreement or other material agreement or instrument to
which the Grantor is a party or by which it or its assets or
properties are bound or affected, except for such breach or
violation as the Operating Partnership has represented and
warranted will be waived or cured, or discharged or repaid
prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a
violation or any order, judgment or decree to which the
Grantor is a party or by which it or any of its assets or
properties are bound or affected; or
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(C) to the knowledge of such counsel, result in the
creation of any lien, charge or encumbrance upon any of the
Grantor's assets or properties, except for Permitted Pledges
(as defined in Section 3.1(a)); and
(iii) all applicable corporate, partnership, limited liability
company or trust action necessary for the Grantor to execute and deliver this
Agreement and the Closing Documents and to perform the transactions contemplated
hereby and thereby has been taken and that the same have been validly executed
and delivered and are the valid and binding obligations of the Grantor
enforceable against it in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors' rights and remedies generally.
(d) An affidavit establishing an exemption from the withholding
requirements of the Foreign Investment in Real Property Tax Act ("FIRPTA"), as
amended, provided, however, that if the Grantor fails to provide such an
affidavit, the Operating Partnership shall be entitled to withhold from the
Acquisition Consideration and pay to the Internal Revenue Service the sums
required to be withheld pursuant to FIRPTA (and the amount so withheld shall be
paid by the Operating Partnership to the Internal Revenue Service, in order for
the Operating Partnership to comply with the provisions of Section 1445 of the
Internal Revenue Code of 1986 or successor similar legislation, as the same may
be amended hereafter).
(e) The Lock-up Agreements and a duly executed signature page to the
Amended and Restated Agreement of Limited Partnership of the Operating
Partnership, a copy of which is attached hereto as Exhibit D (the "PARTNERSHIP
AGREEMENT").
(f) Any other documents, agreements or instruments as the Operating
Partnership shall reasonably request in order to assign, transfer and convey the
Grantor's Interests to the Operating Partnership and to otherwise effect the
transactions contemplated hereby, including filings with any applicable
governmental jurisdiction in which the Operating Partnership is required to file
its partnership documentation.
2.4 Cessation of Offerings. If at any time the Board of Directors of
the Company determines in good faith to abandon the formation of the Company or
the Offerings, the Operating Partnership will so advise the Grantor in writing
and thereupon all parties hereto will be relieved of all obligations under this
Agreement and all Closing Documents (except for obligations arising under
Sections 2.5, 2.6, 3.5, 4.2 and 6.10).
2.5 Closing Costs. The Operating Partnership agrees to pay all of the
closing costs, other than the Grantor's legal fees, arising from the purchase of
the Interests pursuant to the exercise by the Operating Partnership of the
Option.
2.6 Default. (a) If after having exercised the Option, the Operating
Partnership fails to consummate the transactions contemplated hereby (including
a failure due to the Offerings Closing not having occurred), then the Operating
Partnership will pay to the Grantor the sum of $100.00 as liquidated and agreed
upon damages. The parties acknowledge that it would be difficult, if not
impossible, to ascertain the actual measure of the Grantor's damages in the
event of the Operating Partnership's default and the parties agree that $100.00
is a fair reflection of the Grantor's damages in such event.
(b) If the Grantor defaults with respect to its obligations under this
Agreement, the Operating Partnership shall be entitled to exercise against the
Grantor any and all remedies provided at law or in equity, including but not
limited to, the right of specific performance.
2.7 Further Assurances. The Grantor will, from time to time, execute
and deliver to the Operating Partnership all such other and further instruments
and documents and take or cause to be taken all such other and further action as
the Operating Partnership may reasonably request in order to effect the
transactions contemplated
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by this Agreement, including instruments or documents deemed necessary or
desirable by the Operating Partnership to effect and evidence the purchase of
the Grantor's Interests by the Operating Partnership in accordance with the
terms of this Agreement.
ARTICLE III:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE GRANTOR
As a material inducement to the Operating Partnership to enter into
this Agreement and to consummate the transactions contemplated hereby, the
Grantor hereby makes to the Operating Partnership each of the representations
and warranties set forth in this Article III, which representations and
warranties (unless otherwise noted) are true as of the date hereof. As a
condition to the Operating Partnership's obligation to purchase the Interests
after the exercise of the Option, such representations and warranties must be
true as of the Closing Date.
3.1 Title to Interests. (a) Except as set forth on Schedule C attached
hereto, the Grantor owns beneficially and of record, free and clear of any
claim, lien, pledge (except for pledges relating to the debt or equity financing
of any real property owned by the Partnership (any such pledge, a "PERMITTED
PLEDGE")), voting agreement, option, charge, security interest, mortgage, deed
of trust, encumbrance, right of assignment, purchase right or other rights of
any nature whatsoever (each, an "ENCUMBRANCE"), and has full power and authority
to convey free and clear of any Encumbrances, its Interests and, upon delivery
of an Assignment by the Grantor conveying its Interests and delivery of the
Acquisition Consideration by the Operating Partnership for such Interests as
herein provided, the Operating Partnership will acquire good and valid title
thereto, free and clear of any Encumbrance, except Encumbrances created in favor
of the Operating Partnership by the transactions contemplated hereby.
(b) Each of the Grantor's Interests representing an interest in the
Partnership has been validly issued and the Grantor has funded (or will fund
before the same is past due) all capital contributions and advances to the
Partnership in which such Interest represents an interest that are required to
be funded or advanced prior to the date hereof and the Closing.
(c) There are no agreements, instruments or understandings with respect
to any of the Interests except, in the case of any Interest constituting an
interest in the Partnership, as set forth in the partnership agreement of the
Partnership.
(d) The Grantor has no interest, either direct or indirect, in any of
the partnerships or properties set forth on Schedule D attached hereto
(the "Other Partnerships and Properties") except for the Interests identified on
Exhibit A which are the subject of this Agreement, and other interests in the
Other Partnerships and Properties which are the subject of other, similar,
option agreements with the Operating Partnership.
(e) No Permitted Pledge will be in existence as of the date of the
Closing, and the Grantor shall provide, at the Closing, such documentary
evidence of the release of any Permitted Pledge as the Operating Partnership may
reasonably request.
(f) In making the representations in this Section 3.1 regarding the
absence of Encumbrances, the Grantor may assume that the consents and waivers of
rights set forth in Section 6.9 hereof have been given by all partners of the
Partnership, partners in partnerships, members of limited liability companies or
beneficiaries of trusts (in each case, only in their capacity as such) in which
the Grantor's Interests represent direct or indirect interests.
3.2 Organization; Authority; No Conflicts. (a) If the Grantor is not a
natural person, it is a corporation, limited partnership, general partnership,
limited liability company or trust duly organized, validly existing and in good
standing under the laws of the state of its organization.
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(b) The Grantor has full right, authority, power and capacity:
(i) to execute and deliver this Agreement, each Closing
Document and each other agreement, document and instrument to be
executed and delivered by or on behalf of the Grantor pursuant to this
Agreement;
(ii) to perform the transactions contemplated hereby and
thereby; and
(iii) to transfer, assign, convey and deliver all of the
Interests to the Operating Partnership in accordance with this
Agreement.
(c) All applicable corporate, partnership, limited liability company,
trust or other action necessary for Grantor to execute and deliver this
Agreement, the Closing Documents and each other agreement, document and
instrument executed by or on behalf of the Grantor pursuant to this Agreement,
and to perform the transactions contemplated hereby and thereby, has been taken,
or will be taken prior to the Closing Date.
(d) This Agreement, each Closing Document and each other agreement,
document and instrument executed and delivered by or on behalf of the Grantor
pursuant to this Agreement constitutes, or when executed and delivered will
constitute, the legal, valid and binding obligation of the Grantor, each
enforceable in accordance with its respective terms.
(e) Except for any breaches, violations or defaults which will be
waived or cured, or discharged or repaid prior to or contemporaneously with the
Closing, the execution, delivery and performance of this Agreement, the Closing
Documents and each other agreement, document and instrument to be executed and
delivered by or on behalf of the Grantor:
(i) does not and will not violate the Grantor's charter and/or
bylaws, partnership agreement, operating agreement or declaration of
trust, as applicable;
(ii) does not and will not violate any foreign, federal,
state, local or other laws applicable to the Grantor or require the
Grantor to obtain any approval, consent or waiver of, or make any
filing with, any person or authority (governmental or otherwise) that
has not been obtained or made and which does not remain in effect; and
(iii) does not and will not result in a breach or a violation
of, constitute a default under, accelerate any obligation under or give
rise to a right of termination of, any indenture, deed of trust,
mortgage, loan or credit agreement or any other agreement, contract,
instrument, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which the
Grantor is a party or by which the property of the Grantor is bound or
affected, or result in the creation of any Encumbrance on any of the
property or assets of any Partnership in which any Interest of the
Grantor represents an interest.
(f) In making the representations set forth in this Section 3.2, the
Grantor may assume
(i) that the consents and waivers of rights set forth in
Section 6.9 hereof have been given by all partners of the Partnership,
partners in partnerships, members of limited liability companies or
beneficiaries of trusts (in each case, only in their capacity as such)
in which the Grantor's Interests represent direct or indirect interests
and
(ii) that, for purposes of making such representation as of
the date hereof, any Permitted Pledge has been released.
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3.3 Litigation. (a) The Grantor knows of no litigation or proceeding,
whether judicial, administrative or arbitral, pending or overtly threatened,
affecting all or any portion of the Interests or the Grantor's ability to
consummate the transactions contemplated hereby.
(b) The Grantor knows of no outstanding order, writ, injunction or
decree of any court, government, governmental entity or authority or arbitration
against or affecting all or any portion of its Interests, which in any such case
would impair the Grantor's ability to enter into and perform all of its
obligations under this Agreement.
3.4 No Other Agreements. (a) The Grantor has made no agreement with,
and will not enter into any agreement with, and has no obligation (absolute or
contingent) to, any other person or entity to sell, transfer, dispose of or in
any way encumber any of the Interests or restricting in any way the Grantor's
ability to sell the Interests to the Operating Partnership or to enter into any
agreement with respect to the Interests.
(b) In making the representations set forth in this Section 3.4, the
Grantor may assume
(i) that the consents and waivers of rights set forth in
Section 6.9 hereof have been given by all partners of the Partnership,
partners in partnerships, members of limited liability companies or
beneficiaries of trusts (in each case, only in their capacity as such)
in which the Grantor's Interests represent direct or indirect interests
and
(ii) that, for purposes of making such representations as of
the date hereof, any Permitted Pledge has been released.
3.5 No Brokers. The Grantor has not entered into, and covenants that it
will not enter into, any agreement, arrangement or understanding with any person
or entity which will result in the obligation of the Operating Partnership to
pay any finder's fee, brokerage commission or similar payment in connection with
the transactions contemplated hereby.
3.6 Investment Representations and Warranties.
(a) (i) The Grantor has received and reviewed a copy of the Private
Placement Memorandum (the "PRIVATE PLACEMENT MEMORANDUM") prepared in
connection with the contribution of Interests to the capital of the
Operating Partnership (which Private Placement Memorandum includes a
draft Registration Statement, the Summary of Partnership Agreement
Provisions (the "PARTNERSHIP SUMMARY") and the Summary of Tax Matters
(the "TAX MATTERS SUMMARY"), and understands the risks of, and other
considerations relating to, an investment in OP Units.
(ii) The Grantor, by reason of its business and financial
experience, together with the business and financial experience of
those persons, if any, retained by it to represent or advise it with
respect to its investment in OP Units,
(A) has such knowledge, sophistication and experience
in financial and business matters and in making investment
decisions of this type that it is capable of evaluating the
merits and risks of and of making an informed investment
decision with respect to an investment in OP Units,
(B) is capable of protecting its own interest or has
engaged representatives or advisors to assist it in protecting
its interests and
(C) is capable of bearing the economic risk of such
investment.
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(iii) (A) The Grantor is an "accredited investor" as
defined in Rule 501 of the regulations promulgated under the
Securities Act.
(B) If the Grantor has retained or retains a person
to represent or advise it with respect to its investment in OP
Units, the Grantor will advise the Operating Partnership of
such retention and, at the Operating Partnership's request,
the Grantor shall, prior to or at the Closing,
(I) acknowledge in writing such
representation and
(II) cause such representative or advisor to
deliver a certificate to the Operating Partnership
containing such representations as may be reasonably
requested by the Operating Partnership.
(b) (i) The Grantor understands that an investment in the
Operating Partnership involves substantial risks.
(ii) The Grantor has been given the opportunity to make a
thorough investigation of the proposed activities of the Operating
Partnership and has been furnished with materials relating to the
Operating Partnership and its proposed activities, including, without
limitation, the Private Placement Memorandum, the Partnership Summary
and the Tax Matters Summary.
(iii) The Grantor has been afforded the opportunity to obtain
any additional information requested by it.
(iv) The Grantor has had an opportunity to ask questions of
and receive answers from representatives of the Operating Partnership
concerning the Operating Partnership and its proposed activities and
the terms and conditions of an investment in OP Units.
(v) The Grantor has relied and is making its investment
decision based upon the Private Placement Memorandum, the Partnership
Summary, the Tax Matters Summary and other written information provided
to the Grantor by or on behalf of the Operating Partnership.
(c) (i) The OP Units to be issued to the Grantor at the Closing
will be acquired by the Grantor for its own account, for investment
only and not with a view to, or with any intention of, a distribution
or resale thereof, in whole or in part, or the grant of any
participation therein.
(ii) The Grantor was not formed for the specific purpose of
acquiring an interest in the Operating Partnership.
(d) (i) The Grantor acknowledges that
(A) the OP Units to be issued to the Grantor at the
Closing have not been registered under the Securities Act or
state securities laws by reason of a specific exemption or
exemptions from registration under the Securities Act and
applicable state securities laws and, if such OP Units are
represented by certificates, such certificates will bear a
legend to such effect,
(B) the Company's and the Operating Partnership's
reliance on such exemptions is predicated in part on the
accuracy and completeness of the representations and
warranties of the Grantor contained herein,
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(C) the OP Units to be issued to the Grantor at the
Closing may not be resold or otherwise distributed unless
registered under the Securities Act and applicable state
securities laws, or unless an exemption from registration is
available,
(D) there is no public market for such OP Units, and
(E) the Operating Partnership has no obligation or
intention to register such OP Units under the Securities Act
or any state securities laws or to take any action that would
make available any exemption from the registration
requirements of such laws.
(ii) The Grantor hereby acknowledges that because of the
restrictions on transfer or assignment of such OP Units to be issued
hereunder, which will be set forth in the Partnership Agreement and in
the Lock-up Agreements, the Grantor may have to bear the economic risk
of the investment commitment evidenced by this Agreement and any OP
Units issued hereunder for an indefinite period of time.
(e) The address set forth under the Grantor's signature on the
signature page hereto is the address of the Grantor's principal place of
business or, if a natural person, the address of the Grantor's residence, and
the Grantor has no present intention of becoming a resident of any country,
state or jurisdiction other than the country and state in which such principal
place of business or residence is situated.
3.7 Private Placement Memorandum. (a) The Grantor understands and
acknowledges that the Private Placement Memorandum, including, but not limited
to, the descriptions of the various transactions relating to the formation and
business of the Company and the Operating Partnership set forth in the Private
Placement Memorandum, are in draft form only, and such transactions are subject
to change without the consent of the Grantor.
(b) Without limiting the foregoing, such changes may include the
deletion (or addition) of one or more properties expected to be acquired by the
Operating Partnership and changes in the amount of the indebtedness expected to
be repaid with the proceeds of the Offerings.
(c) The Operating Partnership shall not be obligated to obtain the
Grantor's consent as a result of such changes, although such changes could
affect the nature and value of the Grantor's investment in OP Units.
3.8 Covenant to Remedy Breaches. The Grantor covenants to use all
reasonable efforts within its control
(a) to prevent the breach of any representation or warranty of the
Grantor hereunder,
(b) to satisfy all covenants of the Grantor hereunder and
(c) to promptly clear any breach of a representation, warranty or
covenant of the Grantor hereunder upon its learning of same.
ARTICLE IV:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE OPERATING PARTNERSHIP
As a material inducement to the Grantor to enter into this Agreement
and to consummate the transactions contemplated hereby, the Operating
Partnership hereby makes to the Grantor each of the representations and
warranties set forth in this Article IV, which representations and warranties
are true as of the date hereof and shall be true as of the date of the Closing.
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4.1 Authority. (a) The Operating Partnership is a limited partnership
duly organized, validly existing and in good standing under the laws of the
state of Delaware.
(b) The Operating Partnership has full right, authority, power and
capacity:
(i) to execute and deliver this Agreement, each Closing Document
to which it is a party and each other agreement, document and instrument
to be executed and delivered by or on behalf of it pursuant to this
Agreement;
(ii) to perform the transactions contemplated hereby and
thereby; and
(iii) to issue OP Units to each Grantor pursuant to and in
accordance with the terms of this Agreement.
(c) This Agreement, each Closing Document to which the Operating
Partnership is a party and each agreement, document and instrument executed and
delivered by the Operating Partnership pursuant to this Agreement constitutes,
or when executed and delivered will constitute, the legal, valid and binding
obligation of the Operating Partnership, each enforceable in accordance with its
respective terms.
(d) The execution, delivery and performance of this Agreement, each
Closing Document to which the Operating Partnership is a party and each such
agreement, document and instrument by the Operating Partnership:
(i) does not and will not violate the partnership agreement of
the Operating Partnership;
(ii) does not and will not violate any foreign, federal, state,
local or other laws applicable to the Operating Partnership or require
the Operating Partnership to obtain any approval, consent or waiver of,
or make any filing with, any person or authority (governmental or
otherwise) that has not been obtained or made and which does not remain
in effect; and
(iii) does not and will not result in a breach or a violation
of, constitute a default under, accelerate any obligation under or give
rise to a right of termination of, any indenture, deed of trust,
mortgage, loan or credit agreement, any other material agreement,
contract, instrument, lease, permit or authorization, or any order,
writ, judgment, injunction, decree, determination or arbitration award
to which the Operating Partnership is a party or by which the property
of the Operating Partnership is bound or affected.
4.2 NO BROKERS. The Operating Partnership has not entered into, and
covenants that it will not enter into, any agreement, arrangement or
understanding with any person or entity which will result in the obligation of
any Grantor to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
ARTICLE V: POWER OF ATTORNEY
5.1 GRANT OF POWER OF ATTORNEY. (a) The Grantor goes hereby irrevocably
appoint Xxxxxxxx X. Xxxxxxx, Xxxxxx Xxx and the Operating Partnership, and each
of them individually, with full power of substitution (each such person or the
Operating Partnership or any such successor of any of them acting in his, her or
its capacity as attorney-in-fact pursuant hereto, an "ATTORNEY-IN-FACT"), as the
true and lawful attorney-in-fact and agent of the Grantor, to act in the name,
place and stead of the Grantor:
(i) To take for the Grantor all steps deemed necessary or
advisable by the Operating Partnership in connection with the
Offerings, including without limitation
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(A) filing a registration statement and amendments
thereto (the "Registration Statement") under the Securities
Act which describes the benefit to be received by the Grantor
in connection with the formation of the Company and the
offering of the Company's Common Stock,
(B) distributing a preliminary prospectus and
prospectus regarding the offering of the Company's Common
Stock (respectively, the "PRELIMINARY PROSPECTUS" and
"PROSPECTUS") which contain such information as is deemed
necessary or desirable to lawfully effect the IPO, and
preliminary and final offering memoranda regarding the
offering of the Company's Common Stock in the concurrent
private placement, which contain such information as is deemed
necessary or desirable to effect the concurrent private
placement,
(C) to enter into the Lock-Up Agreements, and
(D) to take such other steps as the Attorney-in-Fact
may deem necessary or advisable.
(ii) To make, execute, acknowledge and deliver all such other
contracts, orders, receipts, notices, requests, instructions,
certificates, consents, letters and other writings (including without
limitation the Closing Documents, any other documents relating to the
sale of the Grantor's Interests to the Operating Partnership, and any
consents contemplated by Section 6.9 hereof) and, in general, to do all
things and to take all actions which the Attorney-in-Fact in its sole
discretion may consider necessary or proper in connection with or to
carry out the transactions contemplated by this Agreement and the
Closing Documents as fully as could the Grantor if personally present
and acting.
(b) (i) The Power of Attorney granted by the Grantor pursuant to
this Article V and all authority conferred hereby is granted and
conferred subject to and in consideration of the interest of the
Operating Partnership and the Company and is for the purpose of
completing the transactions contemplated by this Agreement.
(ii) The Power of Attorney of the Grantor granted hereby and
all authority conferred hereby is coupled with an interest and
therefore shall be irrevocable and shall not be terminated by any act
of the Grantor or by operation of law, whether by the death,
disability, incapacity, dissolution or liquidation of the Grantor or by
the occurrence of any other event or events (including without
limitation the termination of any trust or estate for which the Grantor
is acting as a fiduciary or fiduciaries), and if, after the execution
hereof, the Grantor shall die or become disabled or incapacitated or is
dissolved or liquidated, or if any other such event or events shall
occur before the completion of the transactions contemplated by this
Agreement, each Attorney-in-Fact shall nevertheless be authorized and
directed to complete all such transactions as if such death,
disability, incapacity, dissolution, liquidation or other event or
events had not occurred and regardless of notice thereof.
(c) The Grantor agrees that, at the request of the Operating
Partnership, it will promptly execute a separate power of attorney on the same
terms set forth in this Article V, such execution to be witnessed and notarized.
(d) The Grantor acknowledges that Xxxxxxxx Xxxxxxx, Xxxxxx Xxx and the
Operating Partnership have, and any successor thereof acting as Attorney-in-Fact
may have, an economic interest in the transactions contemplated by this
Agreement.
5.2 Limitation on Liability. (a) It is understood that each
Attorney-in-Fact assumes no responsibility or liability to any person by virtue
of the Power of Attorney granted by the Grantor hereby.
(b) Each Attorney-in-Fact makes no representations with respect to and
shall have no responsibility for the formation of the Company, the purchase of
the Interests by the Operating Partnership, the Registration Statement, the
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Prospectus or any Preliminary Prospectus, nor for any aspect of either Offering,
and it shall not be liable for any error of judgment or for any act done or
omitted or for any mistake of fact or law except for its own gross negligence or
bad faith.
(c) The Grantor agrees to indemnify each Attorney-in-Fact for and to
hold each Attorney-in-Fact harmless against any loss, claim, damage or liability
incurred or in part arising out of or in connection with its acting as
Attorney-in-Fact under the Power of Attorney created by the Grantor hereby, as
well as the cost and expense of investigating and defending against any such
loss, claim, damage or liability, except to the extent such loss, claim, damage
or liability is due to the gross negligence or bad faith of such
Attorney-in-Fact.
(d) The Grantor agrees that each Attorney-in-Fact may consult with
counsel of its own choice (who may be counsel for the Operating Partnership
and/or the Company) and it shall have full and complete authorization and
protection for any action taken or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel.
5.3 Ratification; Third Party Reliance. The Grantor does hereby ratify
and confirm all that any Attorney-in-Fact shall lawfully do or cause to be done
by virtue of the exercise of the powers granted unto it by the Grantor
hereunder, and the Grantor authorizes the reliance of third parties on this
Power of Attorney and waives its right, if any, as against any such third party
for its reliance hereon.
ARTICLE VI: MISCELLANEOUS
6.1 Amendment and Waiver. Any amendment hereto shall be effective only
against those parties hereto who have acknowledged in writing their consent to
such amendment. This Agreement without notice to or the consent of any Grantor
for the purpose of adding additional Grantors as parties hereto or deleting
Grantors as parties hereto and conforming Exhibits A and B in connection with
such additions or deletions. No waiver of any provisions of this Agreement shall
be valid unless in writing and signed by the party against whom enforcement is
sought.
6.2 Entire Agreement; Counterparts; Applicable Law. This Agreement
(a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof,
(b) may be executed in several counterparts, each of which will be
deemed an original and all of which shall constitute one and the same instrument
and
(c) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of New York, without giving
effect to the conflicts of law provisions thereof.
6.3 Assignability. This Agreement shall be binding upon, and shall be
enforceable by and inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and assigns; provided,
however, that this Agreement may not be assigned (except by operation of law) by
the Operating Partnership without the prior written consent of the Grantor, or
by the Grantor without the prior written consent of the Operating Partnership,
and any attempted assignment without such consent shall be void and of no
effect; provided, further, however, that the Operating Partnership may assign
all or any portion of this Agreement and the Closing Documents and any agreement
contemplated hereunder or thereunder to the Company or to an affiliate of the
Operating Partnership or the Company without the consent of the Grantor.
6.4 Titles. The titles and captions of the Articles, Sections and
paragraphs of this Agreement are included for convenience of reference only and
shall have no effect on the construction or meaning of this Agreement.
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6.5 Third Party Beneficiary. No provision of this Agreement is
intended, nor shall it be interpreted, to provide or create any third party
beneficiary right or any other right of any kind in any customer, affiliate,
stockholder, partner, director, officer or employee of any party hereto or any
other person or entity, provided, however, that Article V and Sections 6.3 and
6.9 of this Agreement shall be enforceable by and shall inure to the benefit of
the persons described therein.
6.6 Severability. (a) If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto.
(b) The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
the void or unenforceable provision and to execute any amendment, consent or
agreement deemed necessary or desirable by the Operating Partnership to effect
such replacement.
6.7 Equitable Remedies. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any federal or state court
located in the State of New York (as to which the parties agree to submit to
jurisdiction for the purposes of such action), this being in addition to any
other remedy to which they are entitled under this Agreement or otherwise at law
or in equity.
6.8 Notices; Exercise of Option. Any notice or demand which must or may
be given under this Agreement (including the exercise by the Operating
Partnership of the Option) or by law shall, except as otherwise provided, be in
writing and shall be deemed to have been given (i) when physically received by
personal delivery (which shall include the confirmed receipt of a telecopied
facsimile transmission), (ii) three (3) business days after being deposited in
the United States certified or registered mail, return receipt requested,
postage prepaid, or (iii) one (1) business day after being deposited with a
nationally known commercial courier service utilizing its next day delivery
service (such as Federal Express); addressed and delivered or telecopied in the
case of a notice to the Operating Partnership to the following address and
telecopy number:
Tower Realty Operating Partnership, L.P.
c/o Feldman Equities
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Phone: (000)000-0000
Telecopy: (000)000-0000
with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
Phone: (000)000-0000
Telecopy: (000)000-0000
and addressed and delivered or telecopied, in the case of a notice to the
Grantor, to the address and telecopy number set forth under the Grantor's name
in Schedule A hereto.
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6.9 Waiver of Rights; Consents with Respect to Partnership Interests.
(a) The Grantor acknowledges that the agreements contained herein and the
transactions contemplated hereby and any actions taken in contemplation of the
transactions contemplated hereby (including the declaration of any dividend or
distribution in the form of Interests) may conflict with, and may not have been
contemplated by, the partnership agreement of one or more Other Partnerships in
which one or more of the Interests represent a direct or indirect interest or
another agreement among one or more holders of such Interests or one or more of
the partners of any such partnership.
(b) With respect to each Other Partnership in which the Interests
represents a direct or indirect interest, the Grantor expressly gives all
Consents (as defined below) (and any consent necessary to authorize the proper
parties in interest to give all Consents) and Waivers (as defined below)
necessary or desirable to facilitate any Conveyance Action (as defined below)
relating to such partnership (as such terms are defined below).
(c) The Grantor further agrees that the Grantor will take no action to
enjoin, or seek damages resulting from, any Conveyance Action by any holder of a
direct or indirect interest in a partnership in which an Interest of the Grantor
represents a direct or indirect interest.
(d) The Waivers and Consent contained in this Section 6.9 shall
terminate upon the termination of this Agreement, except as to transactions
completed hereunder prior to termination.
(e) (i) As used herein, the term "CONVEYANCE ACTION" means, with
respect to any Other Partnership having a direct or indirect ownership
interest in any property,
(ii) the conveyance or agreement to convey by a partner
thereof or by any holder of an indirect interest therein of its direct
or indirect interest in such partnership to the Operating Partnership
or the Company or to another person in connection with the formation of
the Operating Partnership or the Company as described in the
Registration Statement, or
(iii) the entering into by any such partner or holder of any
agreement relating to
(A) the formation of the Operating Partnership or the
Company as described in the Registration Statement,
(B) the direct or indirect acquisition by the
Operating Partnership or the Company of any such direct or
indirect interest, or
(C) the transactions described in or contemplated by
the Registration Statement, or
(iv) the taking by any such partner or holder of any action
necessary or desirable to facilitate any of the foregoing, including,
without limitation, the following (provided that the same are taken in
furtherance of the foregoing):
(A) any sale or distribution to any person of a
direct or indirect interest in such partnership or an
undivided tenant-in-common interest in the property
represented by such partnership interest,
(B) the entering into of any agreement with any
person or entity that grants to such person or entity the
right to purchase a direct or indirect interest in such
partnership, and
(C) the giving of the Consents and Waivers contained
in this Section 6.9 or consents or waivers similar thereto in
form or purpose.
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(v) As used herein, the term "CONSENTS" means, with respect to
any such partnership, any consent deemed by the Operating Partnership
to be necessary or desirable under the partnership agreement of such
partnership or any other agreement among all or any of the holders of
interests therein or any other agreement relating thereto or referred
to therein
(A) to permit any and all Conveyance Actions relating
to such partnership or to amend such partnership agreement
and/or other agreements so that no provision thereof prohibit,
restricts, impairs or interferes with any Conveyance Action
(such amendment to include, without limitation, the deletion
of provisions which cause a default under such agreement if
interests therein are transferred for other than cash),
(B) to admit the Operating Partnership (or the
Company or any affiliate of the Operating Partnership or the
Company in accordance with Section 6.3 above) as a substitute
limited partner or general partner of such partnership upon
the Operating Partnership's acquisition of a limited or
general partner interest therein, respectively, and to adopt
such amendment as is necessary or desirable to effect such
admission,
(C) to adopt any amendment as may be deemed desirable
by the Operating Partnership, either simultaneously with or
immediately prior to the acquisition of a limited or general
partnership interest therein, provided, however, that such
amendment will not result in any increased liability on the
part of any Grantor hereunder or under the applicable
partnership agreement, and
(D) to continue such partnership following the
transfer of interests therein to the Operating Partnership (or
the Company or any affiliate of the Operating Partnership or
the Company in accordance with Section 6.3 above).
(vi) As used herein, the term "WAIVERS" means, with respect to
a partnership of which an Interest represents a direct or indirect
interest, the waiving of any and all rights that the Grantor may have
with respect to, and (to the extent possible) that any other person may
have with respect to, or that may accrue to the Grantor or other person
upon the occurrence of, a Conveyance Action relating to such
partnership, including, but not limited to, the following rights:
(A) rights of notice,
(B) rights to response periods,
(C) rights to purchase the direct or indirect
interest of another partner in such partnership (or the
Interests represented by such partnership interest) or to sell
the Grantor's or other person's direct or indirect interest
therein to another partner,
(D) rights to sell the Grantor's or other person's
direct or indirect interest therein at a price other than as
provided herein, or
(E) rights to prohibit, limit, invalidate, otherwise
restrict or impair any such Conveyance Action or to cause a
termination or dissolution of such partnership because of such
Conveyance Action.
(f) The Grantor by its execution hereof
(i) with respect to each Other Partnership in which an
Interest owned by the Grantor represents a direct or indirect interest
therein, gives such consent as is necessary to cause each Partnership,
as applicable,
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to have authority to transfer all or substantially all of the assets of
such Partnership to the Operating Partnership on such terms and
conditions as such Other Partnership and the Operating Partnership may
agree; and
(ii) agrees that the Grantor's Acquisition Consideration may
be reduced to reflect such direct transfer of assets and the consequent
receipt of cash and other consideration directly by such Other
Partnership, provided that the total consideration to be received by
the Grantor either directly hereunder or indirectly through the receipt
of distributions from an Other Partnership shall equal Grantor's
Acquisition Consideration.
(g) (i) The Grantor by its execution hereof gives such consent as
is necessary to cause, with respect to the partnership agreement of
each partnership in which an Interest of the Grantor represents,
directly or indirectly, a limited partner or general partner interest,
an amendment thereto to enable such partnership, to the extent
permissible under applicable law,
(A) to admit the Operating Partnership (or the
Company or any affiliate of the Operating Partnership or the
Company in accordance with Section 6.3 above) as a substitute
limited partner therein and/or a substitute general partner
therein if the Operating Partnership (or the Company or any
affiliate of the Operating Partnership or the Company in
accordance with Section 6.3 above) by the exercise of the
Option acquires a limited partnership interest or a general
partnership interest in such partnership,
(B) to redeem the interest of any other partner
therein who has not agreed to become a party to this
Agreement,
(C) to distribute to all partners thereof, including
any partner who has not agreed to become a party to this
Agreement, OP Units and cash (in such proportions to each
partner therein as the general partner or general partners
thereof may determine, provided that the Grantor receives as a
result of all such distributions and the direct payment of
consideration hereunder, the amount of cash that is in
conformity with the Acquisition Consideration of the Grantor
provided for herein), and thereafter, at the Operating
Partnership's option, to dissolve, and
(D) any such other amendment as the Operating
Partnership may deem desirable,
provided that such amendment occurs simultaneously with or immediately
prior to the acquisition of the applicable partnership interest, and
provided further, that such amendment will not result in any increased
liability on the part of any Grantor hereunder or under the applicable
partnership agreement.
(ii) Each Attorney-in-Fact may on behalf of the Grantor
execute such consents, amendments or other instruments as it deems
necessary or desirable in connection with the foregoing.
6.10 Confidentiality. (a) The Grantor shall treat as strictly
confidential the fact that the Company is contemplating an offering of its
Common Stock until such time as the Company has filed the Registration Statement
with the Securities and Exchange Commission, and shall not communicate at any
time the terms of this Agreement to any person other than counsel or advisors to
the Grantor who agree to keep such terms confidential and any lender holding a
lien on any Interests.
(b) The Grantor shall treat all information received from the Operating
Partnership or its counsel or advisors pertaining to the Operating Partnership
or the Company confidential and shall disseminate same only to counsel to the
Grantor who agree to keep such information confidential.
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6.11 Computation of Time. Any time period provided for herein which
shall end on a Saturday, Sunday or bank or legal holiday shall extend to 5:00
p.m. of the next full business day. All times are New York City time.
6.12 Survival. It is the express intention and agreement of the parties
hereto that the representations, warranties and covenants of the Grantor set
forth in this Agreement shall survive the consummation of the transactions
contemplated hereby.
6.13 Time of the Essence. Time is of the essence with respect to all
obligations of the Grantor under this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
OPERATING PARTNERSHIP:
TOWER REALTY OPERATING
PARTNERSHIP, L.P.
By: TOWER REALTY TRUST, INC.,
its general partner
By: /s/ Xxxxxx X. Xxx
------------------------------------
Name: Xxxxxx X. Xxx
Title: Executive Vice President and
Chief Operating Officer
GRANTOR:
XXXXXXX TOWER 45, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: President
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Schedule A
Interests
Grantor's Name & Address Description of Interests
------------------------ ------------------------
Xxxxxxx Tower 45, Inc. Two percent (2%) General
000 Xxxx 00xx Xxxxxx Partner Interest in the Partnership.
Xxx Xxxx, XX 00000
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Schedule B
Form of Acquisition Consideration
---------------------------------
One (1) OP Unit, with the
remaining balance paid in cash.
22
Schedule C
Exceptions to Title
-------------------
None
23
Schedule D
Interests in Other Partnerships and Properties
----------------------------------------------
None
