SALE AND PURCHASE AGREEMENT
BETWEEN
THE SELLER POOL COMPANIES,
as set forth on Exhibit A
(SELLER)
AND
PGI-WvF 180 , L.P.
(PURCHASER)
TABLE OF CONTENTS
Section Page
ARTICLE I
RECITALS
1.1 Real Property.................................................1
1.2 Personal Property.............................................1
1.3 Purchase and Sale.............................................1
ARTICLE II
PURCHASE PRICE
2.1 Price.........................................................2
2.1.1 Deposit...............................................2
2.1.2 Balance of Purchase Price.............................2
2.2 Investment....................................................2
2.3 Interest on the Cash Deposit..................................3
ARTICLE III
DUE DILIGENCE PERIOD
3.1 Due Diligence Materials.......................................3
3.2 Inspection of Property........................................3
3.3 Title and Survey..............................................4
3.4 Violations....................................................5
3.5 Seller's Obligations During Due Diligence Period..............6
3.5.1 27th Floor............................................6
3.5.2 Authority of Seller...................................6
3.6 Intentionally Deleted.........................................6
3.7 Seller's Payment to Purchaser.................................7
3.8 Purchaser's Termination Rights................................7
ARTICLE IV
CONDITIONS TO THE PARTIES' OBLIGATIONS
4.1 Conditions to Purchaser's Obligation to Purchase..............8
4.1.1 Performance by Seller.................................8
4.1.2 Delivery of Title and Possession.....................10
4.1.3 Tenant Estoppels.....................................10
4.1.4 Seller's Representations.............................12
4.1.5 No Breach............................................12
4.2 Conditions to Seller's Obligation to Sell....................12
4.2.1 Performance by Purchaser.............................12
4.2.2 Receipt of Purchase Price............................12
ARTICLE V
PURCHASER'S DELIVERIES TO SELLER
5.1 Deliveries...................................................12
5.1.1 Purchase Price.......................................12
5.1.2 Assignment of Leases and Contracts...................12
5.1.3 Xxxx of Sale.........................................12
5.1.4 State Transfer Tax Form..............................12
5.1.5 City Transfer Tax Form...............................12
5.1.6 27th Floor Lease.....................................13
5.1.7 Closing Statement....................................13
5.1.8 Cash - Prorations....................................13
5.1.9 Resolutions..........................................13
5.1.10 Required Items.......................................13
5.1.11 Other Documents......................................13
ARTICLE VI
SELLER'S DELIVERIES TO PURCHASER
6.1 Delivery of Instruments and Documents........................13
6.1.1 Deed.................................................13
6.1.2 Assignment of Leases and Contracts...................13
6.1.3 Xxxx of Sale.........................................14
6.1.4 Notices to Tenants...................................14
6.1.5 FIRPTA Affidavit.....................................14
6.1.6 State Transfer Tax Form..............................14
6.1.7 City Transfer Tax Form...............................14
6.1.8 Closing Statement....................................14
6.1.9 Cash - Prorations....................................14
6.1.10 Estoppel Certificates................................14
6.1.11 Letters of Credit....................................14
6.1.12 Title Company Requirements...........................15
6.1.13 Assignment - Warranties/Guarantees...................15
6.1.14 Keys.................................................15
6.1.15 Licenses and Permits.................................15
6.1.16 Resolutions..........................................15
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6.1.17 Required Items.......................................15
6.1.18 Rent Roll............................................15
6.1.19 Utility Bills........................................15
6.1.20 Guarantee............................................15
6.1.21 Updated Representation Certificate...................16
6.1.22 Terminated Contracts.................................16
6.1.23 Assignment and Assumption of Contracts for
Work in Progress.....................................16
6.1.24 G.S. Waiver..........................................16
6.1.25 Lien Waivers.........................................16
6.1.26 The 27th Floor Lease.................................16
6.1.27 The 27th Floor Lease Guarantee.......................16
ARTICLE VII
BROKERS AND ADVISORS
7.1 Brokers and Advisors.........................................16
ARTICLE VIII
THE CLOSING
8.1 Date and Manner of Closing...................................17
8.1.1 Funds and Documents..................................17
8.1.2 Title Insurance......................................17
8.2 Additional Title Insurance...................................17
ARTICLE IX
PRORATION, FEES, COSTS AND ADJUSTMENTS
9.1 Prorations...................................................18
9.1.1 Leasing Costs Credited to Purchaser..................18
9.1.2 Leasing Costs During Contract Period.................19
9.1.3 Taxes................................................19
9.1.4 Security and Other Deposits..........................20
9.1.5 Rent.................................................20
9.1.6 Additional Rent......................................20
9.2 Seller's Closing Costs.......................................22
9.3 Purchaser's Closing Costs....................................22
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ARTICLE X
ESCROW
10.1 Escrow.......................................................22
ARTICLE XI
RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION
11.1 Return of Seller's Documents.................................22
11.2 Deposit......................................................23
11.3 No Effect on Rights of Parties; Survival.....................23
ARTICLE XII
DEFAULT
12.1 Seller's Remedies............................................23
12.2 Purchaser's Remedies.........................................23
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
13.1 Seller's Warranties and Representations......................24
13.1.1 Power and Authority..................................24
13.1.2 Proceedings..........................................25
13.1.3 Contravention........................................25
13.1.4 Leases and Contracts.................................25
13.1.5 Compliance...........................................26
13.1.6 Employees............................................26
13.1.7 Litigation...........................................27
13.1.8 Notice of Violations.................................27
13.1.9 Licenses and Permits.................................28
13.1.10 Allowances; Leasing Commissions......................28
13.1.11 Tax Proceedings......................................28
13.1.12 Insurance............................................29
13.1.13 Personal Property....................................29
13.1.14 Environmental and Engineering Reports................29
13.1.15 Utilities............................................29
13.1.16 Business Improvement District........................29
13.1.17 Non-Foreign Person...................................29
13.1.18 Access to Documents..................................29
13.1.19 Brokerage Agreements.................................29
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13.1.20 Work.................................................30
13.1.21 Rezoning.............................................30
13.1.22 Financial Statements.................................30
13.2 Purchaser's Warranties and Representations...................30
13.2.1 Power and Authority..................................30
13.2.2 Execution and Delivery...............................30
13.2.3 Independent Investigation............................31
13.2.4 Purchaser Reliance...................................31
13.3 No Other Warranties and Representations......................31
13.3.1 No Environmental Representations.....................31
13.3.2 Release of Claims....................................32
ARTICLE XIV
CASUALTY AND CONDEMNATION
14.1 Insured Casualty.............................................32
14.2 Uninsured Casualty...........................................33
14.3 Condemnation.................................................33
14.4 Purchaser's Right to Participate and/or Consent..............34
14.5 General Obligations Law......................................34
ARTICLE XV
CONDUCT PRIOR TO THE CLOSING
15.1 Conduct by Seller............................................34
15.2 Actions Prohibited...........................................35
15.3 Leases and Contracts During Due Diligence Period.............36
15.4 After Due Diligence Period...................................36
15.5 Conduct by Purchaser.........................................37
15.6 Confidentiality..............................................37
ARTICLE XVI
NOTICES
ARTICLE XVII
TRANSFER OF TITLE AND POSSESSION
17.1 Transfer of Possession.......................................39
17.1.1 Delivery of Documents at Closing.....................39
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ARTICLE XVIII
GENERAL PROVISIONS
18.1 Captions.....................................................39
18.2 Exhibits.....................................................39
18.3 Entire Agreement.............................................39
18.4 Modification.................................................39
18.5 Attorneys' Fees..............................................40
18.6 Governing Law................................................40
18.7 Time of Essence..............................................40
18.8 Survival of Warranties.......................................40
18.9 Assignment by Purchaser......................................41
18.10 Severability.................................................41
18.11 Successors and Assigns.......................................41
18.12 Interpretation...............................................41
18.13 Counterparts.................................................41
18.14 Recordation..................................................41
18.15 Limitation on Liability......................................41
18.16 WAIVER OF JURY TRIAL.........................................41
18.17 Further Assurances...........................................42
18.18 Non-Waiver of Rights.........................................42
18.19 Mortgage Transactions........................................42
18.20 Credit Lyonnaise Xxxxx (USA) ("Credit Lyonnaise")
Transaction..................................................43
18.21 Indemnity by Seller..........................................44
18.22 Indemnity by Purchaser.......................................44
18.23 Counterparts.................................................44
18.24 Indemnification..............................................45
18.25 Definitions..................................................45
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SALE AND PURCHASE AGREEMENT
This Agreement, dated as of October 13, 2000, is made by and between the
companies listed on Exhibit A (the "Seller Pool Companies"), located at 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Seller"), for which TCC ACQUISITION
CORP., a Delaware corporation acts as Agent ("Agent"), and PGI-WvF 180, L.P., a
New York limited partnership ("Purchaser").
ARTICLE I
RECITALS
1.1 Real Property. Seller owns and holds fee title to that certain land
(the "Land") described in Exhibit B, together with all improvements, buildings
and structures and all fixtures and equipment (including, without limitation,
all of the following (other than the property of tenants under Leases (the
"Tenants") or of public or private utilities): plumbing, electrical, mechanical,
elevator, communication, heating, air conditioning and ventilating components,
lines and systems and boilers and each and every other type of physical
improvement located at, on or affixed to the Land to the full extent such items
constitute or are or can or may be construed as realty under the laws of the
State of New York (collectively, the "Improvements") located thereon known as
000 Xxxxxx Xxxx and located at New York, New York (collectively, the "Real
Property").
1.2 Personal Property. In connection with the Real Property, Seller has (i)
obtained certain governmental permits and approvals, (ii) obtained certain
contractual rights and other intangible assets, and (iii) acquired certain other
items of tangible personal property more completely described in Exhibit C
together with all of Seller's rights to the name of the Real Property
(collectively, the "Personal Property"). The Real Property and the Personal
Property together with all appurtenances, rights and privileges pertaining
thereto including, without limitation, all of Seller's right, title and interest
in and to the rights of way, streets, alleys, easements, strips or gores of land
adjacent thereto are collectively referred to as the "Property." The parties
agree that the Personal Property being conveyed by Seller to Purchaser is de
minimis and no portion of the Purchase Price is attributable thereto.
1.3 Purchase and Sale. Seller now desires to sell and Purchaser now desires
to purchase all of Seller's right, title and interest in and to the Property,
upon the terms and covenants and subject to the conditions set forth below.
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ARTICLE II
PURCHASE PRICE
2.1 Price. In consideration of the covenants herein contained, Seller
hereby agrees to sell and Purchaser hereby agrees to purchase the Property for a
total purchase price of Two Hundred Ninety Million Six Hundred Fifteen Thousand
and 00/100 Dollars ($290,615,000) subject to prorations and adjustments as set
forth herein (the "Purchase Price"), which shall be paid by Purchaser as
follows:
2.1.1 Deposit. Purchaser has, concurrently herewith, deliver to a
TitleServ Agency of New York ("Escrow Agent") having an address at 0 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, pursuant to the terms of the Escrow
Agreement attached hereto as Exhibit X by bank wire of immediately
available funds or by delivering to Escrow Agent a clean, unconditional and
irrevocable letter of credit in favor of Seller in such amount (the
"Deposit Letter of Credit"), issued or confirmed for direct payment by Bank
of New York or other bank which is rated AA and is reasonably acceptable to
Seller, in the form of the letter of credit annexed hereto as Exhibit D,
the sum of Fifteen Million and 00/100 Dollars ($15,000,000) (together with
any interest earned thereon if the deposit was made in cash, the
"Deposit").
2.1.2 Balance of Purchase Price. Purchaser shall at the Closing (as
defined in Section 8.1), deliver to Seller, by bank wire transfer of
immediately available funds to an account designated by Seller no less than
3 days prior to Closing, (i) in the event that the Deposit was in cash, the
additional sum of Two Hundred Seventy-Five Million Six Hundred Fifteen
Thousand and 00/100 Dollars ($275,615,000) representing the balance of the
Purchase Price or (ii) in the event that the Deposit was the Deposit Letter
of Credit, the sum of Two Hundred Ninety Million Six Hundred Fifteen
Thousand and 00/100 Dollars ($290,615,000) upon receipt of which, Escrow
Agent shall return the Deposit Letter of Credit to Purchaser. The balance
of the Purchase Price received by Seller at the Closing shall be adjusted
to reflect prorations and other adjustments pursuant to Section 2.3 and
Section 9.1 and, if applicable, Sections 3.5.1, 4.1.1.1, 4.1.1.2, 4.1.1.3
and 18.20.
2.2 Investment. Following the collection of the Deposit if in cash (the
"Cash Deposit"), Escrow Agent shall invest the Cash Deposit in an
interest-bearing account at Citibank, N.A. or, at the request of Purchaser,
shall invest the Cash Deposit in short-term United States Treasury securities or
other insured, low-risk, short-term securities mutually agreed upon by both
parties.
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2.3 Interest on the Cash Deposit. If the transaction does not close, any
interest earned on the Cash Deposit shall be credited and delivered to the party
receiving the Cash Deposit. If the transaction closes, at the Closing any
interest earned on the Cash Deposit shall be credited to Purchaser.
ARTICLE III
DUE DILIGENCE PERIOD
3.1 Due Diligence Materials. Seller made available to Purchaser and
Purchaser's representatives, for their review and approval during the period
prior to the date hereof (the "Due Diligence Period"), copies of all Leases,
subleases, license and concession agreements, Contracts, records, employment
rosters and other information regarding employees who are employed at the
Property, tenant files, accounting records, correspondence, service and
management agreements, plans, specifications, "as-builts", surveys, permits and
engineering and environmental reports, financial information (including, without
limitation, books and records), appraisals and reports and any other information
or documents reasonably requested by Purchaser (to the extent that any of such
items are in Seller's possession or control and have not yet been delivered to
Purchaser) (the "Due Diligence Materials"). The Due Diligence Materials were
made available to Purchaser and its representatives at the offices of Seller or
its property manager at reasonable times and upon reasonable telephone notice
during the Due Diligence Period and Purchaser made copies of any such materials,
all of which Purchaser will return to Seller in the event that this Agreement is
terminated prior to Closing. In addition, Purchaser, at its sole cost and
expense, was permitted, during the Due Diligence Period, to make a complete
review and inspection of the physical condition of the Property, including,
without limitation, the mechanical, electrical and HVAC systems, roof, facade
and elevator inspections, and a complete ADA compliance, fire safety and
environmental review.
3.2 Inspection of Property. During the term of this Agreement, Purchaser
shall have the right to enter the Property subject to the following limitations:
(A) any entry onto the Property by Purchaser, its agents or representatives,
shall be during normal business hours, following reasonable prior telephone
notice to Seller and delivery to Seller of satisfactory evidence of Purchaser's
general liability insurance, and, at Seller's discretion, Purchaser, its agents
or representatives shall be accompanied by a representative of Seller; (B)
Purchaser shall not conduct any drilling, test borings or other invasive testing
or disturbance of the Property for review of soils, compaction, environmental,
structural or other conditions without Seller's prior written consent; (C) any
discussions or interviews with any of the tenants of the Property or their
personnel or counsel shall be conducted in the presence of Seller or its
representatives; (D) Purchaser shall exercise reasonable diligence not to
disturb the use or occupancy of any occupant of the Property; and (E) Purchaser
shall indemnify, defend and hold Seller
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harmless from all loss, cost, and expense (including, without limitation,
reasonable attorney's fees and disbursements), resulting from any personal
injury or property damage caused by any entry or inspections or other due
diligence activities performed by Purchaser, its agents and representatives.
Purchaser's obligations under this Section shall survive any termination of this
Agreement. Seller hereby grants Purchaser from and after the date hereof, and
continuing through the date of Closing the right to have discussions with and
interview representatives of GS (hereinafter defined) and Stroock & Stroock &
Xxxxx LLP ("SSL") provided that a representative of Seller is present during
such discussions and interviews. During the term of this Agreement, Seller shall
cooperate with Purchaser in scheduling any inspections, tests and tenant
interviews in an expeditious fashion so as to enable Purchaser to fully
investigate the Property, which Purchaser shall have the right to do at any time
prior to Closing in accordance with the provisions of this Agreement, and shall
provide Purchaser with the Due Diligence Materials, provided that subsequent to
the Due Diligence Period, Purchaser shall have no right to terminate this
Agreement based on its continued investigation of the Property except as
specifically set forth in this Agreement.
3.3 Title and Survey. Purchaser acknowledges that prior to the execution
and delivery of this Agreement, Purchaser has received a Certificate and Report
of Title from New York Land Services Inc. (the "Title Company") and ordered a
survey of the Property from a licensed surveyor (the "Survey"). On or prior to
the Closing Date, Seller shall remove, discharge or insure over any lien or
encumbrance on the Property which is not listed on Exhibit E attached hereto
(the "Permitted Encumbrances") (a "Title Defect"), provided that Seller shall
only be required to cure Title Defects that are liquidated in amount if the
aggregate cost of the cure shall not exceed $2,500,000 (the "Title Cap"), except
for monetary liens created by Seller (including the First Mortgage and the
Second Mortgage, as defined below) all of which shall be cured by Seller
regardless of cost. Notwithstanding the foregoing, Seller shall not be required
to cure any mechanic's liens created by GS, or any of its affiliates in
connection with the performance of work under the GS Lease. Any liens evidencing
liquidated claims created by any Tenant (except the mechanic's liens created by
GS described above) shall be cured by Seller, up to the amount of the Title Cap,
and Seller shall have the right to bond such lien and to seek recovery from the
Tenant, including by instituting suit for the amount expended by Seller to
effect such cure. If such liens or encumbrances are not bonded or discharged,
Purchaser shall have the right to terminate this Agreement as described in the
last paragraph of this Section 3.3.
Seller may use any proceeds of the sale to remove, discharge, insure over
or otherwise satisfy (at Closing) any Title Defect.
If, on the date on which the Closing occurs (the "Closing Date"), the Title
Company fails to deliver to Purchaser and Purchaser's lender a title policy in
form and substance substantially the same as the pro forma title policy attached
hereto as Exhibit F,
4
Purchaser may, at its option, (i) accept title to the Property subject to any
Title Defects and receive at Closing a credit against the Purchase Price in an
amount required to cure, as determined by the Title Company, any such Title
Defects, provided that the total amount of credit shall not exceed the amount of
the Title Cap (excluding any monetary liens created by Seller which Seller shall
cure regardless of the cost of cure (including the First Mortgage and the Second
Mortgage) or (ii) if the Title Defects, excluding any monetary liens created by
Seller, exceed the Title Cap, terminate this Agreement by written notice to
Seller, in which event the Deposit shall be returned to Purchaser and thereafter
neither party shall have any further rights or obligations hereunder, except
those specifically stated to survive a termination of this Agreement.
Notwithstanding anything to the contrary in the foregoing, Seller has advised
Purchaser that it is currently disputing with the holder of a mortgage
encumbering the Property the amount which may be due and owing to satisfy such
mortgage and Seller acknowledges that it shall be Seller's obligation to deliver
at Closing to the Title Company any instrument as shall be required by the Title
Company to remove of record the mortgage, identified as Mortgages A-K (the
"First Mortgage") in the Report of Title dated June 1, 2000 (the "Report of
Title") issued by the Title Company; which obligation may include the deposit of
a sum of money with an escrow agent until resolution of the dispute, a procedure
more particularly described in the First Mortgage. In addition to the First
Mortgage, Seller shall also remove of record at or prior to Closing the Mortgage
identified as Mortgage L (the "Second Mortgage") on the Report of Title.
With respect to any Title Defect as to which Seller did not have notice at
least ten days prior to the Closing Date (a "New Exception"), Seller shall be
entitled to a reasonable adjournment of the Closing Date provided for herein
(which adjournment period shall not exceed thirty (30) days) time being of the
essence during which to remove or cure any such New Exception, subject to the
limitations on cure costs set forth in this Section 3.3. If the cost to cure the
New Exception is less than the Title Cap and for a liquidated sum, Purchaser
shall close with a credit for the cost of cure; if the cost to cure is greater
than the Title Cap, Purchaser shall have the option (x) to close subject to
Seller expending up to the Title Cap to cure such New Exception or Seller giving
a credit to Purchaser at Closing for the amount necessary to effect such cure
(up to the amount of the Title Cap), and so long as Seller cures all monetary
liens created by Seller or (y) to terminate this Agreement as set forth in the
preceding paragraph.
3.4 Violations. If the Land or the Improvements is or becomes subject to
any notes or notices of violation of any Laws that have been noted in or issued
by any federal, state or municipal department having jurisdiction prior to the
date of this Agreement, and which have not been fully remedied or discharged of
record ("Violations"), Seller shall remedy such Violations prior to Closing and
shall discharge such Violations of record prior to Closing. Except as otherwise
provided in the next sentence of this Section, in the event that any material
Violations have not been cured prior to Closing, Purchaser may, at its option,
(i) accept title to the Property subject to such Violations and receive a credit
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at Closing in the amount necessary to effect such cure or (ii) terminate this
Agreement by written notice to Seller, in which event the Deposit shall be
returned to Purchaser and neither party shall have any further rights or
obligations hereunder, except those specifically stated to survive a termination
of this Agreement. Notwithstanding the foregoing, in the event that any of the
Violations listed on Exhibit Z are the responsibility of any Tenant to cure
pursuant to its Lease, Seller shall not be responsible to cure any such
Violations, and Purchaser shall have no right to terminate as a result thereof
so long as Seller is using commercially reasonable methods to enforce the
Tenant's obligations to cure the Violations, which shall include Seller's
request in writing that such Tenant cure such Violation. A copy of such request
shall be delivered by Seller to Purchaser.
3.5 Seller's Obligations During Due Diligence Period. Seller shall, within
the time periods set forth below, complete the following (the obligations
described in Section 3.5.1 and Section 3.5.2 are hereinafter defined as
"Seller's Due Diligence Obligations"):
3.5.1 27th Floor. Seller has entered into an amendment of the GS Lease
to include the entire 27th Floor in the GS Lease, in form and substance
reasonably acceptable to Purchaser (the "GS 27th Floor Amendment"). Seller
shall cause to be executed and delivered at Closing a new lease for the
entire 27th floor (the "27th Floor Lease"), between Purchaser, as Landlord,
and The Continental Insurance Company, as Tenant, in the form of Exhibit G,
which 27th Floor Lease shall be subordinate to the GS 27th Floor Amendment
in accordance with the terms of the subordination provisions of Article 33
of the 27th Floor Lease without the need for any further documents or
agreements. In the event that the Rent Commencement Date (as defined in the
GS 27th Floor Amendment) has not occurred on or prior to the Closing Date,
Seller shall be liable to Purchaser for the amount of Fixed Rent (as
defined in the GS Lease) that would have been payable by GS for the time
period from the Closing Date to the date that the Rent Commencement Date
under the GS 27th Floor Amendment occurs (the "27th Floor Fixed Rent
Differential"). If the amount of the credit cannot be calculated at
Closing, Seller shall make such payment to Purchaser monthly and the 27th
Floor Fixed Rent Differential payment obligations shall survive Closing.
The Seller's obligation for the GS 27th Floor Fixed Rent Differential shall
be guaranteed pursuant to the terms of the Guarantee (as defined below).
3.5.2 Authority of Seller. Seller has delivered confirmation,
reasonably acceptable to Purchaser, that TCC Acquisition Corp. is
authorized by the Seller Pool Companies, to enter into the Letter of
Intent, dated August 16, 2000, between Seller and Purchaser ("LOI") with
respect to the Property and that the Seller Pool Companies are authorized
to enter into this Agreement.
3.6 Intentionally Deleted.
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3.7 Seller's Payment to Purchaser. In the event that this Agreement has
been terminated in accordance with its terms and Seller enters into a contract
to sell the Property to GS or any of its Affiliates on or prior to
December 31, 2000, Seller shall pay to Purchaser the amount of $1,000,000 in
immediately available funds to an account designated by Purchaser no later than
3 business days after entering into such contract.
If any payment required to be made by Seller under this Section is not made
within the time period set forth herein, all outstanding amounts shall accrue
interest at the rate of 10% per annum. The obligations of Seller set forth in
this Section shall survive a termination of this Agreement.
3.8 Purchaser's Termination Rights. If Purchaser, after the date hereof,
obtains knowledge at or prior to Closing of any matter entitling Purchaser to
terminate this Agreement (individually or collectively, as applicable, a "Post
Signing Termination Matter"), including without limitation a breach of a
representation or warranty or an unacceptable Estoppel Certificate (as
hereinafter defined), and the aggregate amount of the loss to Purchaser in
connection with the Post Signing Termination Matter is reasonably quantifiable
and is for an amount of $2,500,000 or less in the aggregate, Purchaser shall
remain obligated to acquire the Property on the terms set forth in this
Agreement and Seller shall indemnify Purchaser for all losses suffered in
connection with such Post Signing Termination Matters up to the amount of
$2,500,000 in the aggregate. If Purchaser obtains knowledge at or prior to
Closing of any Post Signing Termination Matter which is reasonably quantifiable
and the aggregate loss exceeds $2,500,000 in the aggregate, Purchaser may (x)
terminate this Agreement and receive a return of the Deposit in which case the
parties hereto shall have no further rights or obligations hereunder, except
those specifically stated to survive a termination of this Agreement or (y)
acquire the Property. If Purchaser shall acquire the Property, Purchaser agrees
that (except as provided in Section 3.3.) it shall not have the right to raise a
claim pursuant to Section 18.21 with respect to the Post Signing Termination
Matter of which Purchaser had prior knowledge and Seller shall indemnify
Purchaser for all losses suffered in connection with such Post Signing
Termination Matter up to $2,500,000 in the aggregate. Seller's indemnity in this
Section 3.8 shall be covered by the Guaranty. It is understood that the Post
Signing Termination Matters shall not include any issues relating to the
following: base year amounts; costs for cleaning; insurance; taxes and
electricity; reduction of sundry income; income and expense of fitness center;
or the physical condition of the Building (except that the Post Signing
Termination Matters shall include matters related to Seller's obligations herein
to (a) repair and maintain the Building from the date hereof to the date of
Closing, (b) comply with its obligations pursuant to Article XIV and (c) perform
the items set forth on Exhibits H and I) and Purchaser waives all rights to
terminate this Agreement or to claim for indemnity or breach of representation
with respect thereto. Purchaser shall notify Seller, promptly when it becomes
aware of a Post Signing Termination Matter and in any event, prior to Closing.
The obligations of
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Seller pursuant to this Section 3.8 are in addition to the obligations of Seller
pursuant to Section 18.21.
ARTICLE IV
CONDITIONS TO THE PARTIES' OBLIGATIONS
4.1 Conditions to Purchaser's Obligation to Purchase. Purchaser's
obligation to purchase is expressly conditioned upon each of the following:
4.1.1 Performance by Seller. Performance in all material respects of
the obligations and covenants of, and deliveries required of, Seller
hereunder, including, without limitation, the following:
4.1.1.1 Capital Improvements. Seller shall complete, prior to the
Closing, and in accordance with the original scope of work which
supports the estimated costs as itemized, all work ("Work") shown in
Exhibit H annexed hereto pursuant to Contracts and agreements approved
in writing by Purchaser to the extent such Work has not been
previously completed. The Contracts and agreements existing on the
date hereof are approved or deemed approved and are listed on Exhibit
H and Exhibit I (the "Prior Agreements"). To the extent that any of
the Work shown on Exhibit H or Exhibit I is not completed as of the
date of this Agreement, Purchaser shall have the right to reasonably
supervise the performance and completion of the Work and to approve
all Contracts and agreements (other than the Prior Agreements). In the
event that any portion of the Work shown on Exhibit H or Exhibit I
remains incomplete as of the Closing, Seller shall credit against the
balance of the Purchase Price owed by Purchaser an amount equal to (a)
the unpaid balances on any contracts for performance of the Work which
have been executed by Seller and approved by Purchaser or which are
Prior Agreements plus (b) the amount required to complete any Work
which has not yet been contracted for, which amount shall be agreed to
in good faith by Seller and Purchaser, (except in any case where the
amount of the credit for any unfinished Work is set forth on Exhibit H
in which case the amount so set forth shall be the amount of the
credit) and Seller shall assign to Purchaser at Closing all of the
Contracts and agreements for the Work approved by Purchaser and the
Prior Agreements. Seller shall deliver at Closing lien waivers for
Work that is shown on Exhibit H and Exhibit I that Seller has
completed prior to Closing.
4.1.1.2 Xxxxxx Auditorium. Seller and GS have entered into an
amendment of the GS Lease to include an additional 8,111 rentable
square
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feet, identified in the GS Lease as the Xxxxxx Auditorium, at an
annual Fixed Rent in the amount of not less than Three Hundred Fifty
Thousand Dollars ($350,000), to be co-terminus with the GS Lease,
subject to Article 38 of the GS Lease, and otherwise on terms and
conditions agreed upon between Seller and GS, with the approval of
Purchaser (the "Xxxxxx Amendment"). Any costs incurred in connection
with the Xxxxxx Amendment shall be for the account of Seller and paid
for by Seller at or prior to Closing. At the Closing, in order to
compensate Purchaser for Fixed Rent for the number of days between the
Closing and the date GS is required to commence paying Fixed Rent,
Purchaser shall receive a credit in the amount of the per diem Fixed
Rent that Purchaser would have been entitled to receive from GS had
Fixed Rent pursuant to the Xxxxxx Amendment been payable on or before
the Closing Date. Any revenue that Purchaser, as landlord, shall
receive from the Xxxxxx Auditorium attributable to the period from the
Closing to the date GS is required to commence paying Fixed Rent shall
be for the account of Seller and Purchaser shall collect such revenue
in the normal course of business and shall remit such revenue net of
any actual expenses incurred by Purchaser and attributable to the
Xxxxxx Auditorium during such period to Seller promptly upon receipt.
The obligations of Purchaser in this Section shall survive Closing.
4.1.1.3 Management Office. Prior to the Closing, Seller and
Purchaser shall identify available space in the Real Property for use
by Purchaser as a management office. The location shall be at
Purchaser's sole discretion from the available space and shall be
selected by Purchaser prior to Closing. The costs of construction of
the management office shall be shared equally between Seller and
Purchaser; provided, however, that the maximum amount of Seller's
contribution shall be Twenty-Five Thousand Dollars ($25,000). In the
event that the construction of and payment for the management office
are not completed prior to the Closing, Purchaser shall be entitled to
a credit at the Closing in the amount of $25,000 less any amounts
previously paid by Seller towards the cost of the management office.
In the event that it is determined that Seller's share of the costs is
less than $25,000, Purchaser shall promptly reimburse Seller for the
excess amount paid by Seller. Purchaser shall make all decisions with
respect to the design, construction, and layout of the management
office. All contracts and agreements to be entered into for the
construction of the management office shall be negotiated by Purchaser
and, upon the request of Purchaser, executed by Seller, subject to the
provisions set forth in this Section regarding payment of costs
related to the management office. All work in connection with the
management office shall be performed by Purchaser; provided, however,
that in the
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event that Purchaser shall desire to commence work prior to the
Closing, Purchaser shall provide to Seller evidence of such insurance
as shall be reasonably required by Seller naming Seller as an insured
in respect of any and all claims for personal injury, death or
property damage occurring in connection with Purchaser's performance
of the work. Purchaser acknowledges and agrees that the existing
management office located on the 27th floor will not be available to
Purchaser to use as a management office.
4.1.1.4 Guarantee. At the Closing, Seller shall deliver to
Purchaser a guarantee in the form attached hereto as Exhibit J (the
"Guarantee") of CNA Financial Corp. (the "Guarantor").
4.1.1.5 Contingent Obligations. Seller shall be liable for and
shall pay to Purchaser upon demand any of the Contingent Obligations
if and to the extent that any shall become due. This obligation of
Seller should survive the Closing and be covered by the Guarantee.
4.1.2 Delivery of Title and Possession. Delivery at the Closing of (i)
all the items listed in Section 6.1 hereof including, without limitation,
the Deed (as defined in Section 6.1.1) and issuance of the Title Policy (as
defined in Section 8.1.2) showing title in Purchaser in the condition
described in Section 8.1.2, and (ii) possession as provided in Section
17.1.
4.1.3 Tenant Estoppels. Receipt by Purchaser of estoppel certificates
(collectively, the "Estoppel Certificates") dated not more than 45 days
prior to the Closing Date executed by each of (i) subject to clause (iii)
below, GS, SSL, Xxxxx & Luxenburg, PC. and Nomura Asset Management
(collectively, the "Major Tenants"), in the form attached hereto as Exhibit
L with respect to all of the Major Tenants (provided that if any of the
Leases for such Major Tenants prescribes the form or requirements of the
estoppel certificate, then an estoppel certificate in conformity with the
such form or requirements shall be an acceptable substitute for the form
attached as Exhibit L and shall be deemed an acceptable estoppel
certificate hereunder); (ii) subject to clause (iii) below, Tenants
occupying in the aggregate not less than ninety percent (90%) of the total
rentable area of the Property not occupied by the Major Tenants
(collectively, the "Other Tenants"), in the form attached hereto as Exhibit
L (except that if any of the Leases for Other Tenants prescribes the form
or requirements of the estoppel certificate, then an estoppel certificate
in conformity with the such form or requirements shall be an acceptable
substitute for the form attached as Exhibit L and shall be deemed an
acceptable estoppel certificate hereunder); and (iii) to the extent, if
any, that estoppel certificates from the Major Tenants and/or Other Tenants
are not all obtained, a certificate of Seller in the form of Exhibit N
attached hereto (the
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"Landlord Estoppel") with respect to each Major Tenant and/or Other Tenant
from whom Seller has not obtained an estoppel certificate. Notwithstanding
this Section 4.1.3(iii), in the event that an Estoppel Certificate is not
obtained from any Major Tenant and Seller delivers a Landlord Estoppel
therefor, Purchaser may either elect to terminate this Agreement in
accordance with the terms hereof or waive the requirement for such Major
Tenant Estoppel Certificate and accept a Landlord Estoppel in lieu of such
Major Tenant Estoppel Certificate. If Purchaser elects to terminate this
Agreement pursuant to the immediately preceding sentence, this Agreement
shall immediately terminate and the Deposit shall be returned to Purchaser
and the parties hereto shall have no liability hereunder except as
specifically stated to survive a termination of this Agreement, except that
if Purchaser shall elect to terminate this Agreement pursuant to the
immediately preceding sentence, Seller shall have the right, but not the
obligation, to elect to adjourn the Closing for a reasonable period of time
not to exceed thirty (30) days in order to obtain a Tenant Estoppel from
such Major Tenant that was not previously delivered.
The Landlord Estoppel, if any, delivered hereunder and Seller's
liability thereunder shall survive the Closing, on a Lease by Lease basis,
until the delivery of an estoppel certificate from the Major Tenants and/or
Other Tenant for which such Landlord Estoppel was substituted. For purposes
of satisfying the 90% requirement set forth in the foregoing clause (ii),
the Tenants shall conclusively be deemed to occupy the rentable area set
forth opposite their names in Exhibit Y attached hereto. Seller agrees to
deliver the appropriate form of Estoppel Certificate to each Tenant and to
request execution of the same. No Estoppel Certificate shall be deemed
obtained if it contains information materially inconsistent with the Rent
Roll or Seller's representations and warranties made herein or the Leases
delivered or made available to Purchaser, provided, however, that if any
Estoppel Certificate would otherwise be deemed not obtained pursuant to
this sentence, Purchaser's right to terminate this Agreement as a result
shall be subject to Section 3.8. To the extent Seller elects to send any of
the Major Tenants or Other Tenants an estoppel certificate in the form
prescribed by, or in accordance with the requirements of, the Lease for
such Tenant, Purchaser shall promptly review the form of such estoppel
certificate proposed by Seller prior to Seller sending such form to such
Tenant, and promptly confirm whether it is consistent with the requirements
of such Lease. In the event that any Estoppel Certificate required to be
delivered by a Tenant is dated more than thirty (30) days prior to the
Closing, Seller shall deliver a certificate with respect to any such
Estoppel Certificate that there have been no defaults or, to Seller's
knowledge, events with which the passage of time or giving of notice would
result in a default since the date of the Estoppel Certificate.
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4.1.4 Seller's Representations. The representations and warranties by
Seller set forth in Section 13.1 being true and correct in all material
respects as of the Closing except as modified by notice (in accordance with
Section 13.1) to which Purchaser does not object in writing within 3
business days after receipt of such notice.
4.1.5 No Breach. There shall be no material breach of a covenant,
undertaking and/or agreement of Seller to be performed hereunder.
4.2 Conditions to Seller's Obligation to Sell. Seller's obligation to sell
is expressly conditioned upon each of the following:
4.2.1 Performance by Purchaser. Performance in all material respects
of the obligations and covenants of, and deliveries required of, Purchaser
hereunder.
4.2.2 Receipt of Purchase Price. Receipt of the Purchase Price and any
adjustments due Seller under Article IX at the Closing in the manner herein
provided.
ARTICLE V
PURCHASER'S DELIVERIES TO SELLER
5.1 Deliveries. Purchaser shall, at or before the Closing, deliver to
Seller each of the following:
5.1.1 Purchase Price. The Purchase Price as set forth in Article II,
subject to adjustments and prorations in accordance with this Agreement.
5.1.2 Assignment of Leases and Contracts. Four executed counterparts
of the Assignment and Assumption of Leases, Contracts and Other Property
Interests (the "Assignment of Leases and Contracts") in the form of
Exhibit O.
5.1.3 Xxxx of Sale. Four executed counterparts of a xxxx of sale (the
"Xxxx of Sale") in the form of Exhibit P, pursuant to which Seller shall
convey and transfer to Purchaser all of its right, title and interest in
and to the Personal Property.
5.1.4 State Transfer Tax Form. An executed New York State Combined
Real Estate Transfer Tax Return and Credit Line Mortgage Certificate
(TP-584).
5.1.5 City Transfer Tax Form. An executed New York City Real Property
Transfer Tax Return (RPT).
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5.1.6 27th Floor Lease. An executed 27th Floor Lease.
5.1.7 Closing Statement. An executed settlement statement reflecting
the adjustments and prorations required under this Agreement.
5.1.8 Cash - Prorations. The amount, if any, required of Purchaser
under this Agreement.
5.1.9 Resolutions. Purchaser's resolutions authorizing this
transaction and the assignment to the Affiliate to which the Agreement is
being assigned and resolutions of the Affiliate authorizing the assumption
of the Agreement.
5.1.10 Required Items. All other items or amounts required by the
terms of this Agreement to be delivered at or prior to Closing by a party.
5.1.11 Other Documents. Such other documents, closing statements, and
other instruments as may be reasonably required from Purchaser to
consummate the purchase of the Property as contemplated by this Agreement.
ARTICLE VI
SELLER'S DELIVERIES TO PURCHASER
6.1 Delivery of Instruments and Documents. Seller shall, at or before the
Closing, deliver to Purchaser the following instruments and documents:
6.1.1 Deed. A Bargain and Sale Deed without Covenants against
Grantor's Acts (the "Deed") with respect to the Real Property, in the form
of Exhibit Q executed and acknowledged by Seller, pursuant to which Seller
shall convey title to the Real Property subject only to the Permitted
Encumbrances.
6.1.2 Assignment of Leases and Contracts. Four executed counterparts
of the Assignment of Leases and Contracts which shall assign to Purchaser
the Leases and, to the extent not objected to by Purchaser, the Contracts,
together with original executed counterparts (or copies if originals are
not in Seller's possession which copies shall be certified by Seller as
being true, correct and complete) of the leases affecting the Property
enumerated in Exhibit R and any leases executed in accordance with this
Agreement after the date hereof and all amendments and modifications
thereto (collectively, the "Leases") and the service contracts, equipment
leases, maintenance agreements and other contracts for goods, services and
equipment entered into by Seller and affecting the Property enumerated in
Exhibit S (the "Contracts") assigned thereby.
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6.1.3 Xxxx of Sale. Four executed counterparts of the Xxxx of Sale
which shall transfer to Purchaser all of Seller's right, title and interest
in the Personal Property.
6.1.4 Notices to Tenants. Notices signed by Seller (or Seller's
manager for the Improvements) addressed to each tenant under each Lease in
the form of Exhibit T.
6.1.5 FIRPTA Affidavit. Executed copies of an affidavit in the form of
Exhibit U, with respect to the Foreign Investment in Real Property Tax Act.
6.1.6 State Transfer Tax Form. An executed and acknowledged New York
State Combined Real Estate Transfer Tax Return and Credit Line Mortgage
Certificate (TP-584) together with all taxes shown due thereon.
6.1.7 City Transfer Tax Form. An executed and acknowledged New York
City Real Property Transfer Tax Return (RPT) together with all taxes shown
due thereon.
6.1.8 Closing Statement. An executed settlement statement reflecting
the adjustments and prorations required under this Agreement.
6.1.9 Cash - Prorations. The amount, if any, required of Seller under
this Agreement.
6.1.10 Estoppel Certificates. The Estoppel Certificates (and, if
applicable, the Landlord's Estoppel(s)).
6.1.11 Letters of Credit. Originals of any letters of credit
(collectively, "Letters of Credit") identified on the Rent Roll (as
hereinafter defined) which are held by Seller as security deposits for the
account of those Tenants listed on the Rent Roll, if such Letters of Credit
in their present form (including amendments thereto) permit Purchaser to
exercise the rights of beneficiary thereunder without amendment of such
Letters of Credit; provided, however, that as for those Letters of Credit
that require amendment in order to enable Purchaser to exercise the rights
of beneficiary thereunder, copies thereof shall be delivered to Purchaser
at Closing and Seller and Purchaser shall cooperate and expend commercially
reasonable efforts to obtain such amendments after the Closing, for the
benefit of and delivery to Purchaser. Should the issuer of any such Letter
of Credit charge for such amendment, Seller shall pay all costs in
connection therewith and Purchaser and/or Seller shall seek recovery of
such costs from the Tenants who delivered the Letters of Credit if required
to be paid by such Tenant, which amounts when received shall be paid to
Seller. This Section 6.1.11 shall survive the Closing.
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6.1.12 Title Company Requirements. Any and all reasonable and
customary documents and/or affidavits executed and delivered by Seller,
and/or Purchaser required by the Title Company.
6.1.13 Assignment - Warranties/Guarantees. An Assignment in favor of
Purchaser in the form attached hereto as Exhibit V of any unexpired
warranties and guarantees in Seller's possession to the extent assignable,
relating to the construction, operation and/or repair of the Property,
together with original copies of any such warranties and guarantees in
Seller's possession or control.
6.1.14 Keys. Keys to all locks on the Property, except secured areas
of Tenants to the extent such areas are permitted under Leases.
6.1.15 Licenses and Permits. Licenses and Permits (as hereinafter
defined), plans and specifications, technical manuals, originals of all
Tenant files and correspondence and any similar materials for the Property
to the extent same have not been previously delivered to Purchaser and to
the extent in Seller's possession or control and, to the extent originals
are not available, copies of the foregoing.
6.1.16 Resolutions. A resolution of each of the Seller Pool Companies
with respect to Agent's authority to act on such entities' behalf and
authorizing each Seller Pool Company to enter into this Agreement and to
consummate this transaction and binding each such entity to the obligations
set forth in this Agreement, together with such other documentation as may
be reasonably required by the Title Company or Purchaser in order to
evidence Seller's due authorization.
6.1.17 Required Items. All other items or amounts required by the
terms of this Agreement to be delivered at or prior to Closing by a party,
which shall include originals of all Due Diligence Materials which shall be
delivered to Purchaser, to the extent Seller or its managing agent has such
originals, and to the extent originals are not available, copies of such
Due Diligence Materials shall be delivered.
6.1.18 Rent Roll. A Rent Roll that has been updated as of a date not
more than two (2) days before the Closing Date shall be delivered to
Purchaser.
6.1.19 Utility Bills. All water, sewer and utility bills and copies of
all operating statements relating to the Property, to the extent available
and in Seller's possession, for the calendar year ending 12/31/99 and the
period from 1/1/00 through the month prior to the month in which the
Closing Date occurs.
6.1.20 Guarantee. The Guarantee.
15
6.1.21 Updated Representation Certificate. A certificate of Seller
updating the representations and warranties set forth herein.
6.1.22 Terminated Contracts. To the extent that any Contracts
(including, without limitation, the management agreement which shall be
terminated at or prior to Closing) have been canceled or terminated on or
before the Closing Date (other than termination by expiration of time),
Seller shall deliver evidence of such cancellation or termination.
6.1.23 Assignment and Assumption of Contracts for Work in Progress. To
the extent any work required to be completed by Seller under Prior
Agreements or contracts approved by Purchaser pursuant to Section 4.1.1.1
has not been completed, an Assignment in favor of Purchaser in the form
attached hereto as Exhibit O of any such contracts.
6.1.24 G.S. Waiver. The Original waiver by GS of its right, pursuant
to Article 37 of the GS Lease, to purchase the Property (the "GS Waiver").
6.1.25 Lien Waivers. Original Lien waivers in recordable form for any
Work listed on Exhibit H and Exhibit I completed prior to the Closing, or,
to the extent Seller shall be unable, using commercially reasonable efforts
to obtain such lien waivers, other evidence, reasonably satisfactory to
Purchaser and the Title Company, that Seller has paid for any portion of
the Work listed on Exhibit H or Exhibit I that has been completed prior to
Closing.
6.1.26 The 27th Floor Lease. The 27th Floor Lease executed by The
Continental Insurance Company.
6.1.27 The 27th Floor Lease Guarantee. The 27th Floor Lease Guaranty
executed by the Guarantor.
ARTICLE VII
BROKERS AND ADVISORS
7.1 Brokers and Advisors. Purchaser and Seller acknowledge and represent to
one another than no investment banker, advisor, or brokers have been involved in
this transaction on behalf of either of them other than The Georgetown Group
("Georgetown") and Newmark & Company Real Estate, Inc. ("Newmark"). Seller shall
pay all brokerage commissions due to Georgetown and Purchaser shall pay all
brokerage commissions due to Newmark. Seller agrees to indemnify and hold
Purchaser harmless from and against all loss, liability or expense (including,
without limitation, reasonable attorneys fees and disbursements) arising out of
any claim or claims by Georgetown and any other broker, finder or similar agent
(excluding Newmark) for commissions, fees or
16
other compensation in connection with this transaction, which claims are based
on contracts between Seller and such other broker, finder or similar agent and
are not based on any dealings between Purchaser and any other broker, finder or
similar agent. Purchaser agrees to indemnify and hold Seller harmless from and
against all loss, liability or expenses (including, without limitation,
reasonable attorneys fees and disbursements) arising out of any claim or claims
by Newmark and any broker, finder or similar agent (excluding Georgetown) for
commissions, fees or other compensation in connection with this transaction,
which claims are based on contracts between Purchaser and such other broker,
finder or similar agent and are not based on any dealings between Seller and any
other broker, finder or similar agent. This Section shall survive the Closing or
termination of this Agreement.
ARTICLE VIII
THE CLOSING
8.1 Date and Manner of Closing. The closing of the transaction contemplated
herein (the "Closing") shall occur at the offices of Debevoise & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or, at Purchaser's election, at the offices in
Manhattan of Purchaser's lender or their counsel on January 16, 2001 (the "Final
Closing Date"), time being of the essence, subject only to (i) Seller's
adjournment rights with respect to New Exceptions or Major Tenant Estoppels, in
which event Seller will give Purchaser not less than three business days' notice
of the date of the Closing and (ii) Purchaser's and Seller's right,
respectively, to extend the Closing Date on three business days' notice, to not
later than January 31, 2001, time being of the essence (subject to Purchaser's
right to an additional fifteen days' if Seller adjourns in accordance with (i)
above.)
8.1.1 Funds and Documents. At the Closing all funds and instruments
required to be delivered pursuant to Articles V and VI shall be or shall
have been so delivered.
8.1.2 Title Insurance. The Title Company shall issue a standard 1992
form of American Land Title Association owner's policy of title insurance
and a standard form of Lender's policy of title insurance (collectively,
the "Title Policy") with liability in the amount of the Purchase Price or
mortgage, as applicable, insuring that fee title to the Real Property vests
in Purchaser or the priority of the mortgage, as applicable, subject only
to the Permitted Encumbrances.
8.2 Additional Title Insurance. Purchaser may, at Purchaser's option,
direct the Title Company to issue additional title insurance endorsements, at
Purchaser's cost, provided that the Title Company's failure to issue any such
additional endorsements shall not affect Purchaser's obligations under this
Agreement.
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ARTICLE IX
PRORATION, FEES, COSTS AND ADJUSTMENTS
9.1 Prorations. At or prior to the Closing, the parties shall prorate, as
of 11:59 p.m. the day prior to the Closing, all income and expenses with respect
to the Property and payable to or by the owner of the Property, including,
without limitation: (i) all real property taxes on the basis of the fiscal
period for which assessed (if the Closing shall occur before the tax rate is
fixed, the apportionment of taxes shall be based on the tax rate for the
preceding period applied to the latest assessed valuation; (ii) "BID" payments
required as a result of the Property being in a Business Improvement District;
(iii) rents and other tenant payments and tenant reimbursement, if any, received
under the Leases as provided in this Article; (iv) charges for water, sewer,
electricity, gas, fuel, steam, vault taxes and other utility charges (other than
those charges required to be paid directly to the utility company by a Tenant)
all of which shall be read promptly before the Closing, unless Seller elects to
close its own applicable account, in which event Purchaser shall open its own
account and the respective charges shall not be prorated; (v) amounts prepaid
and amounts accrued but unpaid on Contracts which are to be assumed by
Purchaser; (vi) periodic fees for licenses, permits or other authorizations with
respect to the Property; (vii) salaries, wages and fringe benefits with respect
to Employees that Purchaser will employ after the Closing, and (viii) all other
items customarily prorated in connection with transactions of the type
contemplated by this Agreement. A further proration of (i) above shall be made
between the parties when the final tax xxxx for the tax year in which the
Closing occurs becomes available. Seller shall pay any taxes or fees assessed
for periods prior to the Closing with respect to emergency generators and fuel
tanks which are the property of Seller and are located on the Property. In
conjunction with such prorations, Seller will assign to Purchaser all utility
deposits which are assignable (and Seller shall be credited with such amounts)
and notify, or cause to be notified, all utilities servicing the Property of the
change in ownership and direct that all future xxxxxxxx be made to Purchaser at
the address of the Property with no interruption of service.
9.1.1 Leasing Costs Credited to Purchaser. Seller shall credit
Purchaser with an amount equal to any then outstanding tenant improvement
allowance, landlord work obligations, leasing commissions, free rent
periods, or any other monetary obligations with respect to executed leases
or extensions, expansions or modifications thereof as of the date hereof
and with respect to the Xxxxxx Amendment, the GS 27th Floor Amendment, and
the 27th Floor Lease, regardless of when the same shall be due as set forth
on Exhibit EE. Notwithstanding the foregoing, the 25th floor of the
Building has been leased to GS for a term to commence upon the expiration
or sooner termination of the Lease to ASARCO Incorporated, the existing
tenant of the 25th Floor, on the terms set forth on Exhibit W and otherwise
in form and substance satisfactory to Purchaser, and
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Purchaser shall be responsible for the tenant improvement allowance and
landlord work obligations due under such lease amendment to the extent set
forth on Exhibit W. The credit for any amounts accruing or payable more
than thirty (30) days after the Closing shall be discounted to a net
present value at an annual discount rate of 6%.
9.1.2 Leasing Costs During Contract Period. Subject to the provisions
of Section 9.1.1 with respect to the Xxxxxx Amendment, the GS 27th Floor
Amendment, the 27th Floor Lease and the lease of the 25th Floor of the
Building to GS, the amount of any Tenant improvement allowances, landlord
work obligations, leasing commissions, free rent periods and any other
monetary obligations, if any, due in respect of Leases or modifications,
renewals, extensions or expansions of Leases entered into after the date
hereof and prior to Closing (the "Contract Period") in accordance with
Article 15 shall be the responsibility of Purchaser and shall be paid by
Purchaser, (other than any free rent for any period prior to Closing which
shall be for the account of Seller) as and when due, except that to the
extent Seller has paid all or any part of such leasing commissions, tenant
allowances, or other similar monetary payments for which Purchaser is
responsible Seller shall provide Purchaser to its reasonable satisfaction
with evidence of such payment and Purchaser shall reimburse Seller for such
payments at Closing.
9.1.3 Taxes. If any proceeding for certiorari or other proceeding to
determine the assessed value of the Property or the real property taxes
payable with respect to the Property shall have been commenced prior to,
and is pending as of, the Closing Date (a "Tax Protest"), Purchaser and
Seller hereby agree that Xxxx Xxxxxx of Xxxxxxx, Freyburg, Marcus &
Xxxxxxxxx shall be designated at Closing as the certiorari counsel who
shall continue the prosecution of such proceeding or proceedings to
completion. Purchaser shall have the authority to settle or compromise any
claim relating to the 2000/2001 fiscal tax years without Seller's consent.
With respect to any fiscal tax year prior to the 2000/2001 fiscal tax year,
Seller shall have the authority to settle or compromise any claim relating
to such period using Seller's certiorari counsel. The parties agree to
cooperate with each other, and to execute any and all documents reasonably
requested by the other party, in furtherance of the foregoing. Real
property tax refunds and credits received after the Closing which are
attributable to a fiscal tax year prior to the Closing shall belong to
Seller and shall be paid promptly to Seller when received by Purchaser, net
of reasonable out-of-pocket expenses of collection thereof and amounts owed
Tenants. Any such refunds and credits attributable to the fiscal tax year
during which the Closing occurs shall be apportioned between Seller and
Purchaser after deducting the reasonable out-of-pocket expenses of
collection thereof and payments required to be made to Tenants. This
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apportionment obligation shall survive the Closing. Any such refunds and
credits attributable to the fiscal tax year after the Closing shall belong
to Purchaser.
9.1.4 Security and Other Deposits. At the Closing, Seller shall (i)
credit to Purchaser with the amount of all refundable security deposits
(plus interest accrued thereon to the extent required to be paid by the
applicable Lease or applicable law) and (ii) deliver to Purchaser all
Letters of Credit as required in Section 6.1.11.
9.1.5 Rent. Basic rents and payments or reimbursements for taxes,
utilities and operating expenses and all other charges or reimbursables as
and when collected under the Leases including without limitation charges
for any special services provided to any Tenant, overtime HVAC or special
cleaning (collectively, the "Rents") shall be prorated; provided, however,
that all Rents collected after the Closing under the Leases shall be
applied, on a Lease by Lease basis, first, to satisfy obligations
attributable to the payment period in which Closing occurs, second, in
payment of all current Rents due and payable for the period after the
Closing, third, after Rents for all current periods have been satisfied in
full in payment of Rents in arrears for the periods prior to the payment
period in which the Closing occurs. At Closing, Seller shall assign to
Purchaser all of its claims or causes of action against existing Tenants,
if any. If at the time of Closing (as reflected in a Schedule to be
delivered by Seller at Closing of all amounts known to Seller as due and
payable by any Tenant for the period prior to Closing but uncollected as of
Closing, whether or not past due) or thereafter there are Rents owed by
Tenants to Seller, then Purchaser will make commercially reasonable
efforts, without suit, to collect the same for the account of Seller and
any such Rents, if received, shall have been received by Purchaser for the
account of Seller and will be remitted by Purchaser to Seller within 15
days of receipt. Seller expressly agrees that if Seller receives any Rents
directly from Tenants after the Closing Date, Seller shall remit same to
Purchaser within 15 days after receipt thereof and Purchaser shall deliver
to Seller the amount thereof, if any, to which Seller is entitled pursuant
to the terms hereof within 15 days after receipt thereof. All prepaid Rents
and charges for the period following the Closing shall be paid over (or
credited) by Seller to Purchaser at Closing. After the Closing, Seller
shall not be entitled to collect or attempt to collect Rents from Tenants
due and owing to Seller, except those whose Lease or right to possession
under the Lease has been terminated and in connection with which the Tenant
has either vacated its premises or summary proceedings have been
instituted.
9.1.6 Additional Rent. Charges to or contributions by Tenants under
the Leases for the period under such Leases which includes the Closing
Date, including without limitation, payments or reimbursements, whether for
taxes, utilities, other operating expenses or otherwise, shall be
apportioned on the basis
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of the ratio which the expenses actually paid by each party for such period
bears to the total of all expenses with respect to such period for which
such payment was made by the Tenant. Such apportionments shall be adjusted
as soon as practicable after the end of the current lease year in which the
Closing occurs, and at such time Purchaser shall furnish Seller with
statements in reasonable detail showing the calculation of such
apportionments, rents and payments, and any adjustments shall be allocated
for the portion to which it applies. If either Seller or Purchaser shall
have collected more than its share of such amounts payable under any Lease
pursuant to this Section, such party shall promptly remit to the other the
amount of such excess. If any Tenant is entitled to refunds of any such
rents or charges, such refunds shall be paid by the party hereto that
received such rents or charges, provided, however, that any amounts
collected by Seller to which Tenants are entitled shall be paid to
Purchaser who shall remit such amounts to Tenants entitled thereto.
Purchaser shall indemnify Seller from and against any claims by Tenants for
amounts remitted by Seller to Purchaser pursuant to this Section.
Purchaser shall prepare and deliver to Seller for its review and
approval the operating expense and real estate tax escalation statements
and adjustments for the calendar year 2000 no later than March 31, 2001.
The reasonable costs incurred by Purchaser or its accountants in preparing
such statements (including without limitation the costs of an audit) shall
be paid by Seller. Upon Seller's approval of the same, Purchaser shall
invoice Tenant's for the amounts set forth thereon. If Seller does not
approve the same and Purchaser and Seller are unable to agree on the
amounts to be billed to the Tenants within fifteen (15) days after Seller's
receipt of Purchaser's initial statements, Purchaser may invoice Tenants
for the amounts it in good faith determines to be correct and any dispute
between Seller and Purchaser shall be resolved in good faith between the
parties.
Purchaser shall prepare and deliver to Seller for its review
statements for the calendar year 2001 no later than March 31, 2002 and
Seller and Purchaser shall follow the same procedures as described above.
Seller hereby agrees, that provided Purchaser follows the procedures
described in this Section 9.1.6, Seller shall have no claim against
Purchaser in connection with any matter related to the escalation
statements prepared by Purchaser in accordance with this Section.
At least three (3) business days prior to Closing, Purchaser and
Seller jointly shall prepare a closing statement, subject to and in
accordance with the terms hereof, indicating the net amount due to either
party as a result of the adjustments and prorations provided for herein.
Any errors in the calculation of apportionments shall be corrected or
adjusted as soon as practicable (but not more
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often than monthly) after the Closing Date. If it is impracticable to
apportion certain items hereunder on the Closing Date, such items shall be
apportioned and paid as soon as practicable thereafter. Purchaser agrees to
take necessary actions after Closing in a timely manner in order to make
the adjustments and prorations provided for hereunder, including, without
limitation, xxxxxxxx to Tenants. The provisions of this Section 9.1
(including, without limitation, Sections 9.1.1 through 9.1.6) shall survive
Closing.
9.2 Seller's Closing Costs. Seller shall pay (i) the Xxx Xxxx Xxxx xxx Xxx
Xxxx Xxxxx transfer taxes in the amount required by law, (ii) Seller's own
attorneys' fees and (iii) any brokerage or investment banking fee payable to
Georgetown.
9.3 Purchaser's Closing Costs. Purchaser shall pay (i) all recording fees,
and all mortgage recording taxes, (ii) the cost of the Title Report, the title
premium for the Title Policy and any lender's title policy and the cost of any
other title insurance endorsements ordered by Purchaser, (iii) survey costs,
(iv) Purchaser's due diligence expenses, including all professional fees, (v)
Purchaser's own attorneys' fees, and (vi) any brokerage or investment banking
fees payable to Newmark in connection with this transaction.
ARTICLE X
ESCROW
10.1 Escrow. TitleServ Agency of New York will act as Escrow Agent pursuant
to the agreement attached hereto as Exhibit X which shall be executed
simultaneously with this Agreement.
ARTICLE XI
RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION
11.1 Return of Seller's Documents. If this Agreement is terminated for any
reason (other than the material default of Seller), Purchaser shall, within five
days following such termination, deliver to Seller all documents and materials
relating to the Property previously delivered to Purchaser by Seller, copies
made by or on behalf of Purchaser of any documents during the Due Diligence
Period or the Contract Period and copies of all reports, studies, documents and
materials obtained by Purchaser from third parties in connection with the
Property and Purchaser's investigation thereof. Such items shall be delivered
without representation or warranty as to accuracy or completeness and with no
right of Seller to rely thereon without the consent of the third party.
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11.2 Deposit. If this Agreement is terminated for any reason other than
Purchaser's default, which defaults shall be governed by Article XII, (i) then
Purchaser shall be entitled to obtain the return of the Deposit or so much
thereof as Purchaser has previously deposited with Escrow Agent.
11.3 No Effect on Rights of Parties; Survival. The return of documents and
monies as set forth above shall not affect the right of either party to seek
such legal or equitable remedies as such party may have under Article XII or
otherwise hereunder with respect to the enforcement of this Agreement. The
obligations under this Article XI shall survive termination of this Agreement.
ARTICLE XII
DEFAULT
12.1 Seller's Remedies. If, (i) at the closing, Seller is ready, willing
and able to convey the Property to Purchaser in accordance with the terms hereof
and Purchaser does not deliver the Purchase Price to Seller in accordance with
the provisions of Section 2.1.2 or refuses to execute and deliver a closing
document required to be executed and delivered to Seller or (ii) Purchaser takes
any action that makes it impossible for Seller to fulfill any obligations
required to be fulfilled by Seller prior to the Closing, then Seller may
terminate this Agreement upon written notice to Purchaser and Seller may retain
the Deposit as liquidated damages. Seller and Purchaser agree that upon the
occurrence of one of the events listed in subclause (i) or (ii) of the preceding
sentence it would be extremely impracticable and difficult to estimate any and
all damage and harm, losses and expenses which Seller would suffer due to such
failure, and insofar as a reasonable estimate of the total net detriment that
Seller would suffer from such failure is the amount of the Deposit, Seller shall
be entitled to retain the Deposit, which amount is not intended to be and is not
a penalty, and which shall be Seller's sole remedy for damages arising from
Purchaser's failure to complete the acquisition.
12.2 Purchaser's Remedies. If the sale and purchase of the Property is not
completed as herein provided solely by reason of any material default of Seller,
Purchaser shall be entitled to (i) terminate this Agreement by delivering notice
to Seller and to obtain the return of the Deposit or (ii) treat this Agreement
as being in full force and effect and pursue only the remedy of specific
performance of this Agreement. Purchaser waives any right to pursue any other
remedy at law or equity for such default of Seller, including, without
limitation, any right to seek, claim or obtain damages, other than in the case
of Seller's fraud, but in no case shall Purchaser seek punitive damages or
consequential damages. Notwithstanding the foregoing, if Seller shall willfully
default in any of its obligations under this Agreement that are solely within
the control of Seller or one of its Affiliates (i.e. those obligations not in
any manner involving third party execution or delivery of documents or
cooperation), then Purchaser may seek damages
23
on account of such willful breach from Seller (not to exceed Fifteen Million
Dollars ($15,000,000) in the aggregate), regardless of whether Purchaser has
elected to acquire the Property. This provision shall survive Closing or
termination of this Agreement provided however that any action must be commenced
within one year of the scheduled Closing Date.
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
13.1 Seller's Warranties and Representations. The matters set forth in this
Section 13.1 constitute representations and warranties by Seller which are now
and (subject to actions taken by Seller in accordance with the provisions of
Article IV and Article XV) shall, in all material respects, at the Closing be
true and correct as restated on the Closing Date. If Seller learns of, or has a
reason to believe that any of the following representations and warranties may
cease to be true, Seller shall give prompt notice to Purchaser (which notice
shall include copies of the instrument, correspondence, or document, if any,
upon which Seller's notice is based). As used in this Section 13.1, the phrase
"to the extent of Seller's actual knowledge" or "actually known to Seller" shall
mean the actual knowledge of Xxxx Xxxxxx, Assistant Vice President, National
Property Management, CNA, the asset manager responsible for the Property and
Xxxxxxx Xxxxxxx, on-site property manager employed by Xxxxxxx & Xxxxxxxxx, Inc.
("C&W") There shall be no duty imposed or implied to investigate, inspect, or
audit any such matters, and there shall be no personal liability on the part of
such individuals.
13.1.1Power and Authority. Each of the Seller Pool Companies has the
legal power, right and authority to enter into this Agreement and to
consummate the transactions contemplated hereby, and each is duly formed,
validly existing and in good standing under the Laws of the State of each
of its respective formation/organization/incorporation and is authorized to
do business in the State of New York; each has granted Seller and Agent
full power and authority to act on its behalf and has authorized Seller and
Agent to consummate this transaction and bind each of them to the
obligations set forth in this Agreement (and shall be liable, jointly and
severally, for all of the obligations of Seller hereunder). Agent is a
Delaware corporation, duly organized and validly existing and in good
standing under the laws of the State of Delaware and has the requisite
power and authority to carry on its business in the State of New York as it
is now being conducted. This Agreement constitutes the legal, valid and
binding obligation of Seller enforceable in accordance with its terms and
Seller has the legal power, right and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. Each of
the persons signing this Agreement on behalf of Seller is authorized to do
so.
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13.1.2 Proceedings. There is no pending or, to the extent of Seller's
actual knowledge threatened condemnation or similar proceeding affecting
any part of the Real Property.
13.1.3 Contravention. Neither Seller nor any Seller Pool Company nor
Agent is prohibited from consummating the transactions contemplated by this
Agreement or from executing or delivering this Agreement by any Law, or any
agreement to which Seller or any Seller Pool Company or Agent is a party or
by which it is bound.
13.1.4 Leases and Contracts. The Leases, listed on the Rent Roll and
Contracts comprise all of the leases and contracts which will affect the
Property on the Closing, true, correct and complete copies of which have
been delivered to Purchaser, other than those leases and contracts entered
into in accordance with Article XV. Except as disclosed in the Rent Roll
attached hereto as Exhibit Y, which lists the tenants name, space, all
leases, amendments, letter agreements and assignments and the dates thereof
the expiration date of the lease and current rent and charges tenant
security deposits, prepaid rent and arrearages, base year and base year
amounts on account of operating expenses and real estate taxes (the "Rent
Roll"), no base rent or additional rent or other fees or charges due under
the respective Leases has been paid more than one (1) month in advance by
any Tenant. Base Year and base year amounts on account of operating
expenses and taxes are listed for information only and no representation
and warranty is made with respect thereto. The Rent Roll lists all of the
Leases as of the date of this Agreement. Except as otherwise set forth in
the Rent Roll, all of the Leases are in full force and effect and none of
them has been modified, amended, supplemented or extended. Except as
otherwise set forth in the Rent Roll, as of the date hereof, no Tenant is
in arrears in the payment of rent and Seller has not sent written notice to
any Tenant claiming that such Tenant is in default, which default remains
uncured. Except as otherwise disclosed to Purchaser as set forth on the
Rent Roll, as of the date hereof, Seller has received no written notice of
any claim by a Tenant against Seller or any prior landlord that has not
been resolved for any security deposit or of any Tenant defense or off-sets
to rent or additional rent. To the knowledge of Seller, Seller is not in
default of any of its monetary obligations or in default of any material
obligation as landlord under any Lease. No action or proceeding instituted
against Seller by any Tenant is currently pending in any court with respect
to the Property. There are no security deposits not set forth in the Rent
Roll that have been paid (or, with respect to Letters of Credit, delivered)
to Seller by or on behalf of any Tenant, or with respect to any of the
Leases. Seller has not received any written notice from any Tenant claiming
that Seller is in monetary or other material default under the Lease with
such Tenant, which default remains uncured.
25
Exhibit S lists all of the Contracts in effect as of the date hereof
with respect to the Property and there are no service, maintenance, supply
or management contracts or similar agreements affecting the Property,
either written or oral, which will remain in effect beyond the Closing,
except for those described in Section 4.1.1.1 and except for contracts that
can be cancelled on not more than 30 days' notice without penalty or fee
except for penalty or fee which Seller agrees to pay; there are no
agreements which will bind the Property (including all amendments,
modifications and supplements thereto) after the Closing other than the
Permitted Encumbrances. To Seller's knowledge, all of the Contracts are in
full force and effect as of the date of this Agreement, (ii) no action or
proceeding instituted against Seller by any party to a Contract (each, a
"Contract Party") is presently pending in any court and Seller has not
received any written notice from any Contract Party claiming that Seller is
in monetary or other material default under the Contract with such Contract
Party, which default remains uncured, (iii) to Seller's knowledge, Seller
has paid all sums currently due and payable under the Contracts except for
sums which are not more than 30 days' past due, (iv) Seller has delivered
to Purchaser true, correct and complete copies of all Contracts and (v)
except as set forth on Exhibit S, all Contracts are terminable upon not
more than 30 days' notice without penalty or fee except for fees or
penalties which Seller is willing to pay.
13.1.5 Compliance. Except as listed on Exhibit Z, Seller has not
received written notice from any Governmental Authority that the Property
is not in material compliance with all applicable Laws, except for such
failures to comply, if any, which have been remedied.
13.1.6 Employees. Seller represents that the employees listed on
Exhibit AA (the "Employees") are the only employees employed at the
Property all of whom are employed by C&W and not by Seller, and that with
the exception of the Property Manager, the Secretary and the
Accountant/Bookkeeper, (collectively, the "Non-Union Employees"), all
employees on Exhibit AA are Union Employees. Exhibit BB contains a true,
correct and complete list of all the Union Contracts with respect to the
Employees and to Seller's knowledge, all of the Union Contracts are in full
force and effect. "Union Contracts" shall mean all contracts, agreements,
collective bargaining agreements and union agreements related to all
Employees. Purchaser agrees to assume or cause a company with whom it has a
contractual relationship ("Employer Company") to assume the Union Contracts
with respect to such Employees and to comply with the terms thereof with
respect to the Employees from and after the Closing. Purchaser shall offer
to hire or cause the Employer Company to offer to hire the Employees, other
than the Non-Union Employees, commencing on the date of the Closing and
shall assume all liabilities and obligations to such Employees accruing
from and after the Closing under the Union Contracts, including, without
limitation, all salaries
26
and wages, payable thereunder, all severance pay and other obligations as a
result of any termination by Purchaser or the Employer Company of any of
such Employees after the Closing and any liabilities or obligations under
any employee benefit plans as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, maintained by Purchaser
and with respect to any employee benefit or fringe benefit plans or
arrangements maintained by Purchaser, in each case, to the extent such
payments or benefits are required to be made or provided pursuant to the
Union Contracts. Seller represents that (i) it has not entered into any
voluntary modifications of the Union Contracts and (ii) it has made all
payments required by the Union Contracts prior to the date of Closing.
Seller will cause C &W to request from each of the Unions listed on Exhibit
BB a letter dated prior to Closing stating the amount of any underfunded
obligation, if any. Purchaser shall indemnify, defend and hold harmless
Seller from and against any and all claims, liabilities, damages, costs and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) arising from Purchaser's or the Employer Company's failure
to pay and perform its obligations with respect to the Employees hired by
Purchaser accruing from and after the Closing under this Section 13.1.6.
Seller shall indemnify, defend and hold harmless Purchaser from and against
any and all claims, liabilities, damages, costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements) arising
from any failure by Seller to pay or perform any obligations to the
Employees accruing prior to the Closing, provided, however, that Seller
shall not be liable for payment of any severance pay, employee benefit plan
obligations or other obligations (whether nor not relating to any period
prior to the Closing) to or for the benefit of any of the Employees hired
by Purchaser arising as a result of any termination of any such Employees
by Purchaser or the Employer Company after the Closing. The indemnities set
forth in this Section 13.1.6 shall survive the Closing.
13.1.7 Litigation. There is no pending litigation affecting the
Property except for litigation which, to Seller's knowledge, is covered by
insurance. Seller has not received written notice from any insurance
company that it has denied coverage in any such insured litigation. Seller
does not have any knowledge of any threatened material litigation.
13.1.8 Notice of Violations. Seller has not received any written
notice from any governmental agency, lender or any Tenant that the Property
(or any portion thereof) is in violation (which has not heretofore been
corrected or otherwise satisfied and in connection with which all penalties
have been paid) of (1) any of the requirements of restrictive covenants or
other encumbrances affecting the Property (or any portion thereof) except
as set forth on Exhibit CC and (2) any Laws bearing on the ownership,
operation or use of the Property, including, without limitation, those
relating to health, safety, building, fire,
27
zoning, accessibility, and land use except as set forth on Exhibit Z. No
casualty has occurred with respect to the Property within eighteen (18)
months preceding the date hereof that has not heretofore been repair or
restored.
13.1.9 Licenses and Permits. Exhibit DD contains a list of all permits
and licenses and applications for permits (including, but not limited to, a
certificate of occupancy relating to the Improvements) from Governmental
Authorities currently maintained by Seller in connection with its ownership
of the Property (collectively, the "Licenses and Permits"), all of which
Licenses and Permits (i) have been issued, or duly transferred, to Seller
(to the extent assignable), (ii) have been paid for in full and (iii)
Seller has not received any written notice revoking or threatening to
revoke or terminating any License or Permit except that as of the date
hereof, the Public Assembly Permit for the Xxxxxx Auditorium has expired
and although Seller has made timely application for renewal and has paid
all application fees required to be paid in connection with the renewal,
the current Public Assembly Permit has not been issued. Any fines or
penalties imposed by any Governmental Authority in connection with the
expired Public Assembly Permit shall be Seller's obligation to pay. This
obligation of Seller shall survive Closing. Seller has delivered to
Purchaser true, correct and complete copies of all of the Licenses and
Permits.
13.1.10 Allowances; Leasing Commissions. Except as otherwise set forth
on Exhibit EE attached hereto, Seller has paid or provided for all
construction allowances, brokerage commissions, leasing commissions,
takeover obligations or similar tenant inducements required to be paid,
provided or credited with respect to the current lease term of any Lease
(as opposed to any renewal, extension or expansion term of any Lease).
Initial installations by Seller for Tenants required with respect to the
current term of their respective Leases, except as set forth in Exhibit FF,
have been completed in all material respects and Seller has performed all
other material work required to be performed by the Seller under the Leases
up to the date of the Closing. Except as otherwise set forth on Exhibit H
and Exhibit I, Seller is not performing any ongoing construction work in,
on or about the Property other than normal maintenance being performed by
Seller in the ordinary course of business. Except as set forth in the
Leases, there are no takeback or takeover obligations under any of the
Leases or which would otherwise be enforceable against the owner of the
Property after the Closing.
13.1.11 Tax Proceedings. Except as set forth on Exhibit GG , there are
no tax reduction proceedings pending with respect to all or any portion of
the Property. Except as disclosed on the tax bills with respect to the Real
Property, Seller has no knowledge of, any tax abatements, deferrals or
exemptions in effect with respect to the Property and Seller has received
no written notice of any
28
proposed increase in the assessed value of the Property or of any proposed
public improvement assessments.
13.1.12 Insurance. Exhibit HH attached hereto is a true, correct and
complete list of the types and amounts of insurance coverage maintained by
Seller and in force with respect to the Property. Except as otherwise set
forth on Exhibit HH , Seller has not received any written notice from any
of the insurers of the Improvements of any physical condition of the
improvements with respect to which such insurer has required correction or
change which has not been corrected or changed.
13.1.13 Personal Property. Except as set forth on Exhibit C, all of
the Personal Property, if any, to be transferred by Seller to Purchaser has
been paid for in full and is free of all liens, claims and encumbrances.
13.1.14 Environmental and Engineering Reports. Exhibit II is a list of
environmental and engineering reports in Seller's possession or control
relating to the Property, and true and complete copies of same have
heretofore been delivered by Seller to Purchaser.
13.1.15 Utilities. Seller has received no written notice from any
utility company or governmental or quasi-governmental entity of any fact or
condition which could result in the discontinuation of presently available
public utilities for the Property.
13.1.16 Business Improvement District. The Property is located in and
subject to assessments imposed by a Business Improvement District. Seller
has furnished to Purchaser copies of the current bills for assessments
required to be paid in connection with the Business Improvement District.
13.1.17 Non-Foreign Person. Seller is a "United States Person" within
the meaning of Section 1445(f)(3) and 7701(a)(30) of the Internal Revenue
Code of 1986, as amended.
13.1.18 Access to Documents. To Seller's knowledge, Seller has
provided Purchaser with access to any and all Leases, Contracts, Licenses
and Permits, books and records, plans, documents and information relating
to the Property and the ownership and operation thereof which are in the
possession or control of Seller.
13.1.19 Brokerage Agreements. The only brokerage or leasing agreements
relating to the Leases existing on the date hereof or that will be binding
on Purchaser after the Closing are those set forth on Exhibit JJ (the
"Brokerage Agreements"). Seller has delivered or caused to be delivered to
29
Purchaser true, correct and complete copies of each Brokerage Agreement
listed on Exhibit JJ.
13.1.20 Work. Exhibit H and Exhibit I contains a list of all material
work in progress by Seller at the Property, the Contracts or agreements
entered into with respect to such work, a description of such work, an
estimate of the percentage of such work which is complete and an estimate
of the cost to complete.
13.1.21 Rezoning. There is no pending request by Seller for a rezoning
of the Property or any other variance for the Property.
13.1.22 Financial Statements. Seller has delivered to Purchaser its
audited Financial Statements for the period 1997 to 1999. Expenses in
connection with the operation and ownership of the Property (other than
with respect to the Xxxxxx Auditorium and Fitness Center and the
Continental Club) are shown on the books and records of Seller delivered to
Purchaser and not instead on the books and records of any other entity
(except in accordance with accounting, regulatory or reporting matters), it
being understood that the foregoing representation is not a representation
or warranty as to the amount of any such expenses.
13.2 Purchaser's Warranties and Representations. The matters set forth in
this Section 13.2 constitute representations and warranties by Purchaser which
are now and shall, at the Closing, be true and correct.
13.2.1 Power and Authority. Purchaser is a Delaware corporation, duly
organized and validly existing and in good standing under the laws of the
State of Delaware and has the requisite power and authority to carry on its
business in the State of New York as it is now being conducted. This
Agreement constitutes the legal, valid and binding obligation of Purchaser
enforceable in accordance with its terms; Purchaser has the legal power,
right and authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
13.2.2 Execution and Delivery. The execution and delivery of this
Agreement and the performance by Purchaser of its obligations hereunder are
not and will not violate any law, rule, judgment, regulation, order, writ,
injunction or decree of any court or the United States of America or the
State of New York or any political subdivision of either of the foregoing,
to the extent any of the foregoing have jurisdiction over the Purchaser or
the Property, or any decision or ruling of any arbitrator to which
Purchaser is a party or by which Purchaser or the Property is bound or
affected, such that Purchaser's performance hereunder would be materially
and adversely impacted on account of such violation.
30
13.2.3 Independent Investigation. The consummation of this transaction
shall constitute Purchaser's acknowledgment that it has independently
inspected and investigated the Property and has made and entered into this
Agreement based upon such inspection and investigation and its own
examination of the condition of the Property and the representations and
warranties of Seller set forth herein.
13.2.4 Purchaser Reliance. Purchaser is experienced in and
knowledgeable about the ownership and management of commercial real estate
properties, and it has relied and will rely exclusively on its own
consultants, advisors, counsel, employees, agents, principals and/or
studies, investigations and/or inspections with respect to the Property,
its condition, value and potential except as expressly set forth in Section
13.1 or elsewhere herein. Purchaser agrees that, notwithstanding the fact
that it has received certain information from Seller or its agents or
consultants, Purchaser has relied solely upon and will continue to rely
solely upon its own analysis and will not rely on any information provided
by Seller or its agents or consultants, except as expressly set forth in
Section 13.1.
13.3 No Other Warranties and Representations. Except as specifically set
forth in this Article XIII or elsewhere herein, neither Seller nor Purchaser
have made, make or have authorized anyone to make, any warranty or
representation as to the Leases, the Contracts, any written materials delivered
to Purchaser or the persons preparing such materials, the present or future
physical condition, development potential, zoning, building or land use law or
compliance therewith (including, without limitation, the Americans with
Disabilities Act),operation, income generated by, or any other matter or thing
affecting or relating to the Property or any matter or thing pertaining to this
Agreement. Purchaser expressly acknowledges that no such warranty or
representation has been made and that Purchaser is not relying on any warranty
or representation whatsoever other than as is expressly set forth in this
Article XIII or elsewhere herein. Purchaser shall accept the Property "as is"
and in its condition on the date hereof subject only to the express provisions
of this Agreement and ordinary wear and tear.
13.3.1 No Environmental Representations. Seller makes no
representations or warranties as to whether the Property contains asbestos,
radon or any hazardous materials or harmful or toxic substances, or
pertaining to the extent, location or nature of same, if any. Further, to
the extent that Seller has provided to Purchaser information from any
inspection, engineering or environmental reports concerning asbestos, radon
or any hazardous materials or harmful or toxic substances, Seller makes no
representations or warranties with respect to the accuracy or completeness,
methodology of preparation or otherwise concerning the contents of such
reports.
31
13.3.2 Release of Claims. Purchaser acknowledges and agrees that
Seller makes no representation or warranty as to, and Purchaser waives and
releases Seller from any present or future claims arising from or relating
to, the presence or alleged presence of asbestos, radon or any hazardous
materials or harmful or toxic substances in, on, under or about the
Property, including without limitation any claims under or on account of
(i) the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as the same may have been or may be amended from time to time,
and similar state statutes, and any regulations promulgated thereunder,
(ii) any other federal, state or local law, ordinance, rule or regulation,
now or hereafter in effect, that deals with or otherwise in any manner
relates to, environmental matters of any kind, (iii) this Agreement, or
(iv) the common law. The provisions of this Section 13.3.2 shall not be
deemed to limit the right of Purchaser to name Seller as a party defendant
in any action brought by any third party including any governmental entity
for damages which such third party alleges have been caused by
environmental conditions affecting or related to the property which existed
prior to the Closing.
ARTICLE XIV
CASUALTY AND CONDEMNATION
14.1 Insured Casualty. Promptly upon learning thereof, Seller shall give
Purchaser written notice of any damage or destruction of the Property occurring
prior to the Closing. If prior to the Closing the Property is materially damaged
or destroyed, which damage or destruction is covered by insurance, Purchaser
shall have the option of either (i) applying the proceeds of payment under any
insurance policies toward the payment of the Purchase Price to the extent
insurance payments have been received by Seller, receiving from Seller an amount
equal to any applicable deductible under any such insurance policy and receiving
an assignment from Seller of Seller's right, title and interest in any such
awards or payments, or (ii) terminating this Agreement by delivering written
notice of such termination to Seller within 30 days after Purchaser has received
written notice from Seller of such material damage or destruction in which event
this Agreement shall terminate immediately and Purchaser shall receive the
return of the Deposit and thereafter neither party shall have any further rights
or obligations hereunder except those specifically stated to survive a
termination of this Agreement. If prior to the Closing an immaterial portion of
the Property is damaged or destroyed, which damage or destruction is covered by
insurance, then Purchaser shall have the option to either (i) cause Seller to
commence to repair or replace such damage to or destruction of the Property or
the applicable portion thereof or (ii) proceed to Closing with, the proceeds of
any insurance policies and any applicable deductible under any insurance
policies being applied toward the payment of the Purchase Price to the extent
such insurance payments have been received by Seller and Seller shall assign to
Purchaser all of Seller's right, title and interest in any such awards or
payments. For purposes of this Section, the word
32
"material" shall mean any damage or destruction which Seller and Purchaser, in
its respective reasonable judgment, believes will cost more than $10,000,000 to
repair and/or replace.
14.2 Uninsured Casualty. In the event of any uninsured damage to or
destruction of the Property or any portion thereof (notice of which shall be
given to Purchaser by Seller promptly following its occurrence) prior to the
Closing, which damage or destruction can, in Purchaser's reasonable judgment
based upon the written advice of engineers and/or architect be repaired or
replaced for a cost not to exceed $10,000,000. at Purchaser's option, Seller
shall either (i) commence to repair or replace such damage to or destruction of
the Property or the applicable portion thereof or (ii) proceed to Closing,
whereupon Purchaser will accept the Property as it is together with a reduction
of the Purchase Price in the amount of the engineer/architect's estimate of the
cost to replace the damaged portion of the Property. If the cost of such repair
or replacement exceeds $10,000,000, as reasonably determined by Purchaser then
Purchaser may, at its option, by notice to Seller given within thirty (30) days
after the date that the cost to repair or replace such damage is determined,
unilaterally terminate this Agreement, in which event this Agreement shall
terminate immediately, the Deposit shall be returned to Purchaser and thereafter
neither party shall have any further rights or obligations hereunder except
those expressly stated to survive a termination hereof. If Purchaser does not
elect to terminate this Agreement as provided in this Section 14.2 , then this
Agreement shall continue between Purchaser and Seller and Purchaser shall
receive a credit, at Closing, in an amount equal to the estimated cost of such
restoration as reasonably determined by Purchaser.
14.3 Condemnation. Promptly upon learning thereof, Seller shall give
Purchaser written notice of any threatened or commenced or consummated
condemnation. If prior to the Closing, a material portion (as hereinafter
defined) of the Property is condemned, Purchaser may, at its option, by notice
to Seller given thirty (30) days after Purchaser is notified of such actual or
possible proceedings, terminate this Agreement, in which event the Deposit shall
be returned to Purchaser and thereafter neither party shall have any further
rights or obligations hereunder, except those expressly stated to survive the
termination hereof. If Purchaser fails to do so, Purchaser shall be deemed to
have elected to continue this Agreement, in which event Seller shall, at the
Closing, assign to Purchaser its entire right, title and interest in and to any
condemnation award (and Seller shall pay to Purchaser any such compensation and
damages already received) and Purchaser shall have the sole right from the date
thereof through the Closing to negotiate and otherwise deal with the condemning
authority in respect of such matter. In the event that less than a material
portion of the Property is condemned, this Agreement shall continue and Seller
shall, at the Closing, assign to Purchaser its entire right, title and interest
in and to any condemnation award (and Seller shall pay to Purchaser any such
compensation and damages already received) and Purchaser shall have the sole
right from the date hereof through the Closing to negotiate and otherwise deal
with the condemning
33
authority in respect of such matter. For purposes of this Section 14.3,
"material" shall mean a condemnation which Seller and Purchaser, in its
respective reasonable judgment, believes effects more than five percent (5%) of
the Building or affects access to or the ability to use the Property as
presently used or has a material adverse effect on the income from the Property.
14.4 Purchaser's Right to Participate and/or Consent. In the event that
there is a casualty or condemnation as set forth in Section 14.1-14.3 above and
Purchaser does not terminate this Agreement, Purchaser shall (i) in the event of
an insured casualty, have the right to participate in any insurance settlement
and, if Purchaser elects to have Seller repair or replace such damage, approve
(which approval shall not be unreasonably withheld or delayed) all plans and
specification, contractors and material terms of any contracts for such repair
or replacement, (ii) in the event of an uninsured casualty, if Purchaser elects
to have Seller repair or replace such damage, have the right to approve (which
approval shall not be unreasonably withheld or delayed) all plans and
specifications, contractors and material terms of any contracts for such repair
or replacement and (iii) in the event of a condemnation, have the right to
participate in any condemnation award proceeding.
14.5 General Obligations Law. The parties understand and agree that the
provisions of this Article XIV shall govern and supersede the provisions of
Section 5-1311 of the General Obligations Law of the State of New York.
ARTICLE XV
CONDUCT PRIOR TO THE CLOSING
15.1 Conduct by Seller. Seller hereby covenants and agrees with Purchaser
that during the Contract Period, Seller shall operate the Property in a first
class manner in accordance with its past business practices. Without limiting
the foregoing, Seller shall:
(i) maintain in full force and effect the insurance policies described
in Exhibit HH;
(ii) between the date hereof and the Closing, Seller will advise
Purchaser of any written notice Seller receives after the date hereof from
any Governmental Authority relating to the violation of any Law regulating
the condition or use of the Property; and
(iii) reasonably cooperate with Purchaser's attempts to obtain
subordination and/or non-disturbance and attornment agreements from Tenants
to the extent requested by Purchaser's lender.
34
15.2 Actions Prohibited. During the Contract Period Seller shall not,
without the prior written approval of Purchaser:
(i) make any unreimbursed capital expenditures in an amount not to
exceed $30,000 in the aggregate with respect to the Property other than (a)
in the ordinary course of operating the Property, (b) required for
maintenance and repair, (c) required by any of the Leases or the Contracts
or by governmental requirements affecting the Property, (d) required by
Section 4.1.1.1 or (e) required by Section 4.1.1.3 all of which shall be
made at Seller's expense unless otherwise set forth in Section 4.1.1.1 and
Section 4.1.1.3;
(ii) sell, transfer, encumber or change the status of title of all or
any portion of the Property;
(iii) change or attempt to change, directly or indirectly, the current
zoning of the Real Property;
(iv) cancel, amend or modify any Licenses and Permits held by Seller
with respect to the Property or any part thereof which would be binding
upon Purchaser after the Closing.
(v) grant any consent of landlord under a Lease unless such consent is
for a de minimis matter or unless required by the terms of the Lease;
(vi) bring (or permit, to the extent within Seller's knowledge and
control, to be brought) Hazardous Materials or substances on or into the
Property in violation of Environmental Laws;
(vii) remove or dispose of (or permit, to the extent within Seller's
knowledge and control, to be removed or disposed of) any Hazardous
Materials or substances existing on or in the Property in violation of
Environmental Laws;
(viii) remove (unless the same are replaced with similar or comparable
items of at least equal quality prior to the Closing) any fixtures,
equipment or Personal Property included hereunder;
(ix) create any encumbrances affecting title to the Land or sell or
transfer any portion of or interest in the Property;
(x) unless and until this Agreement shall be terminated in accordance
with the terms hereof, Seller shall not solicit or pursue or entertain any
offers to purchase the Property, nor shall Seller enter into any
negotiations with third parties with respect to a sale of the Property;
35
(xi) enter into, amend, modify or terminate any Union Contract; or
(xii) terminate the lease dated May 1, 1992 between Seller, as
landlord, and ASARCO Incorporated, as tenant, as amended from time to time
(the "ASARCO Lease") for the entire 25th Floor unless and until Seller has
entered into an amendment of the GS Lease to include the 25th Floor or a
new lease for such space has been entered into with GS; provided that such
amendment or lease with GS (i) commences upon the expiration of the ASARCO
Lease with respect to the 25th Floor, (ii) is on the same terms and
conditions set forth on Exhibit W and (iii) is otherwise in form and
substance reasonably acceptable to Purchaser.
15.3 Leases and Contracts During Due Diligence Period. Prior to the end of
the Due Diligence Period, Seller may not enter into, cancel, amend, or modify
any Contracts or any Leases without approval by Purchaser which approval will
not be unreasonably withheld or delayed. In addition, Seller shall not consent
to any assignment or sublease in connection with any Lease, unless required to
do so pursuant to the terms of the Lease. To the extent that any Contracts
(including, without limitation, the management agreement) have been canceled or
terminated on or before the Closing Date (other than termination by expiration
of time), Seller shall deliver evidence of such cancellation or termination to
Purchaser at the Closing.
15.4 After Due Diligence Period. After the Due Diligence Period, if
Purchaser does not terminate this Agreement, Seller may not enter into any new
lease or contract (unless such contracts are terminable on thirty (30) days'
notice) or cancel, amend or modify any Contracts or any Leases without
Purchaser's consent, which consent may be withheld by Purchaser in its sole and
absolute discretion. In addition, Seller shall not consent to any assignment or
sublease in connection with any Lease unless required to do so pursuant to the
terms of the Lease, subject to Purchaser's consent based on the standard for
consent set forth in the relevant Lease. To the extent that any Contracts
(including, without limitation, the management agreement) have been canceled or
terminated on or before the Closing Date (other than termination by expiration
of time), Seller shall deliver evidence of such cancellation or termination to
Purchaser at the Closing. Notwithstanding the preceding sentence, Seller may
enter into any new contracts without Purchaser's consent if doing so is in the
ordinary course of operating the Property and the contract (i) will not be
binding on Purchaser or (ii) is cancelable on 30 days or less notice without
penalty or premium.
If Seller shall request Purchaser's approval to any of the foregoing
matters, Purchaser shall have ten days from its receipt of such request to give
Seller notice of its approval or disapproval of such matter. If Purchaser does
not give such notice, such matter shall be deemed approved by Purchaser. Any
unreimbursed capital expenditure approved by Purchaser or deemed approved by
Purchaser shall be at Purchaser's expense.
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15.5 Conduct by Purchaser. No later than 75 days prior to Closing,
Purchaser shall notify Seller in writing of any Contract that Purchaser does not
desire to assume. Seller shall pay all costs associated with such termination(s)
and terminate the same prior to Closing and provide written evidence of such
termination to Purchaser at Closing.
15.6 Confidentiality. Seller and Purchaser shall, prior to the Closing,
maintain the confidentiality of this sale and purchase and shall not, except as
required by law or governmental regulation applicable to Seller or Purchaser,
which, with respect to Seller, shall include Standard & Poor's and insurance
regulators, disclose the terms of this Agreement or of such sale and purchase to
any third parties whomsoever other than the principals of Georgetown, Newmark,
the Title Company and such other persons whose assistance is required in
carrying out the terms of this Agreement including, without limitation, any
potential or actual lenders or partners of Purchaser. Neither Seller nor
Purchaser shall at any time issue a press release or otherwise communicate with
media representatives regarding this sale and purchase unless such release or
communication has received the prior approval of the other party hereto.
Purchaser agrees that the Confidentiality Agreement, dated as of June 23, 2000
from Purchaser for the benefit of Seller is in effect, that all documents and
information regarding the Property of whatsoever nature made available to it by
Seller or Seller's agents and the results of all tests and studies of the
Property (collectively, the "Proprietary Information") are confidential and
Purchaser shall not disclose any Proprietary Information to any other person
except those assisting it with the analysis of the Property and any potential or
actual lenders or partners of Purchaser, and only after procuring such person's
agreement to abide by these confidentiality restrictions. This Section 15.5
shall survive the Closing or termination of the Agreement.
ARTICLE XVI
NOTICES
All notices, demands or other communications given hereunder shall be in
writing and shall be deemed to have been duly delivered upon the receipt by
facsimile transmission as evidenced by receipt transmission report, or upon the
delivery by overnight express delivery service or by hand or 3 business days
after mailing by certified mail postage prepaid, return receipt requested,
addressed as follows:
If to Purchaser, to:
PGI-WvF 180, L.P.
c/o Paramount Group, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxx X. Xxxxxx
37
Phone: 000-000-0000
Fax: 000-000-0000
Paramount Group, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxx X. Xxxxx
Phone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
If to Seller, to:
Xxxxxxxx X. Xxxxx
Vice President
XXX
XXX Xxxxx - 00 Xxxxx
Xxxxxxx, XX 00000
and
Xxxxxx Xxxxxxxxxx
Senior Vice President
XXX
XXX Xxxxx - 00 Xxxxx
Xxxxxxx, XX 00000
and
Xxxxxxxxxx Xxxxxxxxx, Esq.
CNA
XXX Xxxxx - 00 Xxxxx
Xxxxxxx, XX 00000
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with a copy to:
Xxxxx Xxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address or to such other person as any party shall designate to
the others for such purpose in the manner hereinabove set forth.
ARTICLE XVII
TRANSFER OF TITLE AND POSSESSION
17.1 Transfer of Possession. Possession of the Property shall be
transferred to Purchaser at the Closing subject to the Permitted Encumbrances.
17.1.1 Delivery of Documents at Closing. At the Closing, Seller shall
deliver to Purchaser originals or copies of any additional documents,
instruments or records in the possession of Seller or its agents which are
necessary for the ownership and operation of the Property.
ARTICLE XVIII
GENERAL PROVISIONS
18.1 Captions. Captions in this Agreement are inserted for convenience of
reference only and do not define, describe or limit the scope or the intent of
this Agreement or any of the terms hereof.
18.2 Exhibits. All Exhibits referred to herein and attached hereto are a
part hereof.
18.3 Entire Agreement. This Agreement contains the entire agreement between
the parties relating to the transaction contemplated hereby and all prior or
contemporaneous agreements, including without limitation, the LOI,
understandings, representations and statements, oral or written, are merged
herein.
18.4 Modification. No modification, waiver, amendment, discharge or change
of this Agreement shall be valid unless the same is in writing and signed by the
party against which the enforcement of such modification, waiver, amendment,
discharge or change is or may be sought.
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18.5 Attorneys' Fees. Should any party hereto employ an attorney for the
purpose of enforcing or construing this Agreement, or any judgment based on this
Agreement, in any legal proceeding whatsoever, including insolvency, bankruptcy,
arbitration, declaratory relief or other litigation, the prevailing party shall
be entitled to receive from the other party or parties thereto reimbursement for
all reasonable attorneys' fees and all costs, including but not limited to
service of process, filing fees, court and court reporter costs, investigative
costs, expert witness fees and the cost of any bonds, whether taxable or not,
and such reimbursement shall be included in any judgment, decree or final order
issued in that proceeding. The "prevailing party" means the party in whose favor
a judgment, decree, or final order is rendered. This provision shall survive
Closing.
18.6 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, subject to any adjournment
rights set forth in this Agreement.
18.7 Time of Essence. Time is of the essence to this Agreement and to all
dates and time periods set forth herein.
18.8 Survival of Warranties. Except as otherwise specifically set forth in
this Agreement, only the warranties and representations contained in Sections
13.1 and 13.2 and the provisions of Section 13.3 shall survive the Closing, the
delivery of the Deed and the payment of the Purchase Price, provided that (i)
the representations and warranties set forth in Sections 13.1.1-13.1.3, 13.2.1,
13.2.2 and 13.1.17 shall survive indefinitely and all other representations and
warranties set forth in Article 13 shall survive for a period of 12 months after
the Closing, except to the extent that Purchaser or Seller, as the case may be,
shall have commenced, on or before such 12 month anniversary (the "Warranty
Period"), a legal proceeding based on the breach thereof as of the date of the
Closing, and (ii) the maximum total liability for which Seller shall be
responsible with respect to all representations and warranties and each Landlord
Estoppel shall not exceed Seven Million Five Hundred Thousand Dollars
($7,500,000) in the aggregate, and no claim for breach of representation or
warranty may be made unless the claims, individually or in the aggregate, shall
be in excess of $100,000 after taking account all prior claims, and if such
claims in the aggregate exceed $100,000, Purchaser may make claims for all
breaches without regard to the $100,000 deductible. Unless otherwise expressly
herein stated to survive, all other representations, covenants, conditions and
agreements contained herein shall merge into and be superseded by the various
documents executed and delivered at the Closing and shall not survive the
Closing. The liability of the Seller to Purchaser for any matter disclosed by
Seller or learned by Purchaser prior to the Closing shall be governed by Section
3.8. At Closing, Seller shall deliver to Purchaser a guarantee in the form of
Exhibit J from the Guarantor agreeing to guarantee the obligations of Seller
with respect to representations and warranties of Seller set forth herein and
Seller's statements in the Landlord Estoppels up to the amount of $7,500,000.
40
The liability of Seller pursuant to this Section 18.8 is in addition to and
independent of any liability of Seller pursuant to Section 3.8.
18.9 Assignment by Purchaser. Purchaser may not assign its rights under
this Agreement except to an Affiliate (as herein defined) provided, that any
such Affiliate shall expressly assume, in writing, the covenants, undertakings,
warranties, representations and all other obligations of Purchaser under this
Agreement, whether before or after Closing and upon such assignment Purchaser
shall be released from its obligations hereunder.
18.10 Severability. If any term, covenant, condition, provision or
agreement herein contained is held to be invalid, void or otherwise
unenforceable by any court of competent jurisdiction, the fact that such term,
covenant, condition, provision or agreement is invalid, void or otherwise
unenforceable shall in no way affect the validity or enforceability of any other
term, covenant, condition, provision or agreement herein contained.
18.11 Successors and Assigns. All terms of this Agreement shall be binding
upon, inure to the benefit of and be enforceable by, the parties hereto and
their respective legal representatives, successors and assigns (subject to
Section 18.9).
18.12 Interpretation. Seller and Purchaser acknowledge each to the other
that both they 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 amendments or Exhibits hereto.
18.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed original; such
counterparts shall together constitute but one agreement.
18.14 Recordation. This Agreement may not be recorded and any attempt to do
so shall be of no effect whatsoever.
18.15 Limitation on Liability. In any action brought to enforce the
obligations of Seller under this Agreement, the judgment or decree shall be
enforceable against Seller only to the extent of its interest in the Property,
including any proceeds thereof, and no other property or assets of Seller shall
be subject to levy, execution or lien for the satisfaction of any remedies
against Seller unless Seller has committed fraud, in which event there shall be
no limit to the liability of Seller. This provision shall survive the Closing.
18.16 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY EXPRESSLY WAIVE ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM,
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DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THIS AGREEMENT OR THE OTHER
AGREEMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION
THEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR
THE OTHER AGREEMENTS (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND THE PARTIES HEREBY AGREE AND
CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY
MIGHT OTHERWISE HAVE TO TRIAL BY JURY. THIS SECTION SHALL SURVIVE CLOSING OR
TERMINATION OF THIS AGREEMENT.
18.17 Further Assurances. Seller, Agent and Purchaser each agree to do such
further acts and things and to execute and deliver such additional agreements
and instruments as the other may reasonably require to consummate, evidence or
confirm the sale or any other agreement contained herein in the manner
contemplated hereby. This Section shall survive the Closing.
18.18 Non-Waiver of Rights. No failure or delay of either party in the
exercise of any right given to such party hereunder shall constitute a waiver
thereof unless the time specified herein for exercise of such right has expired,
nor shall any single or partial exercise of any right preclude other or further
exercise thereof or of any other right. The waiver of any breach hereunder shall
not be deemed to be a waiver of any other or any subsequent breach hereof.
18.19 Mortgage Transactions. Notwithstanding anything to the contrary set
forth herein, Purchaser may, if it so elects, take such steps as Purchaser shall
deem necessary or desirable to encumber the Property at or immediately prior to
the Closing with a mortgage (the "Mortgage") that encumbers other premises
located in the City and State of New York (a "Mortgage Transaction"). Seller
shall use reasonable efforts to cooperate (which cooperation shall be at
Purchaser's sole cost and expense) in so effecting a Mortgage Transaction, if so
desired by Purchaser, provided that such structuring shall not increase Seller's
liabilities or obligations hereunder or adversely affect Seller's rights
hereunder and provided further that the following conditions shall be satisfied
prior to the Mortgage encumbering the Property: (i) there shall only be one
Mortgage and one
42
Mortgage lender (" Mortgagee"), (ii) the Mortgage shall be prepayable at any
time, (iii) Purchaser shall deposit with Agent an irrevocable Letter of Credit
acceptable to Seller, drawn on a Bank acceptable to Seller in its sole
discretion, in an amount equivalent to 125% of the Mortgage, naming Agent as
beneficiary and giving Agent the absolute right to draw down the Letter of
Credit on the date following the date of Closing (the "Pay-off Date"), if the
Closing does not occur, (iv) Purchaser shall deliver a pay-off letter from the
Mortgagee stating the full amount required to satisfy the Mortgage on the
Pay-off Date, and the per diem amount required for each day thereafter, and, (v)
Purchaser shall deliver to Seller a cash deposit in an amount sufficient to pay
the first two monthly installments due on the note secured by the Mortgage. In
providing such assistance, Seller shall execute such documents, if any, as may
be reasonably required by Purchaser to effectuate such encumbrance ("Mortgage
Documents") and otherwise comply with the provisions of this Section 18.19,
provided that the Mortgage Transaction and the Mortgage Documents shall not (a)
require Seller to execute any contract, make any commitment, or incur any
obligations, contingent or otherwise, to third parties which are not fully
released as part of the Closing, (b) delay the Closing, and (c) otherwise be
contrary to or inconsistent with the terms of this Agreement. Any Mortgage
Document that Purchaser shall request Seller to execute shall be prepared and
submitted to Seller at least five (5) business days prior to the date that
Seller's execution thereof is requested. Seller shall execute any such Mortgage
Document only if it conforms in all respects to the provisions of this Agreement
relating to a Mortgage Document. Purchaser hereby agrees to indemnify, defend
and hold Seller, its respective partners and the heirs, successors and assigns
thereof, harmless from, against and in respect of, and shall on demand reimburse
Seller, its respective partners and the heirs, successors and assigns thereof
for, any and all loss, liability, damage or expense, including but not limited
to reasonable attorneys' fees and disbursements, arising out of or in any way
connected with the Mortgage Transaction or any Mortgage Document which would not
have been incurred if there was no Mortgage Transaction.
18.20 Credit Lyonnaise Xxxxx (USA) ("Credit Lyonnaise") Transaction. Prior
to Closing, Seller may (i) enter into an agreement with Credit Lyonnaise
pursuant to which Credit Lyonnaise will agree to surrender its leasehold
interest on a portion of the 19th floor of the Property on or prior to December
31, 2000, (the "Credit Lyonnaise Surrender") and otherwise on terms and
conditions reasonably acceptable to Purchaser and Seller and (ii) enter into an
amendment to the GS Lease (the "19th Floor Amendment") pursuant to which GS will
agree to lease the portion of the 19th floor surrendered by Credit Lyonnaise on
terms and conditions set forth on Exhibit LL and otherwise reasonably acceptable
to Purchaser. Seller's right to enter into the Credit Lyonnaise Surrender or the
19th Floor Amendment shall be contingent upon Seller's entering into the other
such agreement. In the event that the Credit Lyonnaise Surrender and the 19th
Floor Amendment have not both been executed prior to Closing, Purchaser shall
receive a credit at Closing in the amount of One Million One Hundred Ninety Two
Thousand ($1,192,000) Dollars and shall be required to close. In the event that
the
43
Credit Lyonnaise Surrender and the 19th Floor Amendment are in full force and
effect at Closing, but the Fixed Rent pursuant to the 19th Floor Amendment is
not payable by GS on the Closing Date, Seller shall pay to Purchaser (or credit
against he Purchase Price) the difference between (x) the per diem Fixed Rent
that would be payable by GS pursuant to the 19th floor Amendment and (y) the per
diem fixed rent that is payable by Credit Lyonnaise, from the Closing Date until
the date that GS is required to begin paying Fixed Rent, or, in the event that
the Credit Lyonnaise lease is terminated prior to the Closing Date and the GS
obligation to pay Fixed Rent has not commenced, the amount of Fixed Rent that GS
would be obligated to pay pursuant to the 19th Floor Amendment from the Closing
Date until the date that Fixed Rent is payable by GS pursuant to the 19th Floor
Amendment. If the amount of the payment or credit cannot be calculated at
Closing, Seller shall make such payments to Purchaser monthly and such payment
obligations shall survive Closing and shall be covered by the Guarantee.
18.21 Indemnity by Seller. Seller shall indemnify, defend, and hold
Purchaser harmless from and against any and all loss, cost, expense (including
reasonable attorneys' fees and disbursements), damage or liability arising out
of, directly or indirectly, (a) tort claims, (including those for bodily injury,
wrongful death, or property damage) against Purchaser or the Property based on
causes of action which arose, accrued or relate to facts occurring prior to the
Closing, not caused by Purchaser, its agents, contractors and other
representatives and (b) claims by Tenants (including, without limitation, claims
with respect to overcharges of rent or additional rent but only to the extent of
amounts received by Seller from Tenants), employees, contractors or parties
under the Contracts and utility companies, with respect to matters that occurred
or obligations which accrued prior to the Closing. The provisions of this
Section 18.21 shall survive the Closing for the statute of limitation with
respect to each specific claim.
18.22 Indemnity by Purchaser. Purchaser shall indemnify, defend, and hold
Seller harmless from and against any and all loss, cost, expense (including
reasonable attorneys' fees and disbursements), damage or liability arising out
of, directly or indirectly, (a) tort claims, (including those for bodily injury,
wrongful death, or property damage) against Seller or the Property based on
causes of action which arose, accrued or relate to facts occurring after the
Closing not caused by Seller, its agents, contractors and other representatives
and (b) claims by Tenants, employees, contractors under the Contracts, utility
companies, and the holder of any mortgage on the Property (or any portion
thereof), with respect to matters that occurred or obligations which accrued
after the Closing. The provisions of this Section 18.22 shall survive the
Closing for the statute of limitations with respect to each specific claim.
18.23 Counterparts. This Agreement may be executed in any number of
counterparts, and each counterpart hereof shall be deemed an Original
instrument. But all counterparts together shall constitute but one agreement.
Facsimile signatures shall be deemed originals.
44
18.24 Indemnification. If, pursuant to this Agreement, Seller has agreed to
indemnify Purchaser with respect to a particular matter, Seller shall be deemed
to have agreed to indemnify Purchaser for all losses, costs, liabilities,
damages and expenses (including, without limitation (provided Purchaser shall
prevail in the enforcement of the indemnity in connection with such matter)
reasonable attorneys' fees and disbursements, court costs and enforcement costs)
suffered or incurred by Purchaser with respect to such matter, provided,
however, that in no event shall Seller's liability exceed the maximum amounts,
if any, provided for in this Agreement, including, without limitation, in
Section 3.8, and 18.8.
18.25 Definitions. The following terms used but not otherwise defined
herein shall have the following meanings.
"Affiliate" as used with respect to Seller or any other Person, shall mean
any Person controlled, controlled by or under common control with Seller. The
term "control" and the correlative terms controlled, controlled by and under
common control with shall mean the power to direct the management and policies
of such Person.
"Affiliate" as used with respect to Purchaser, shall mean (i) Xxxxxx Xxxx
and/or his direct descendants, (ii) Xxxxxxx xxx Xxxxx, Xx., Xxxxxxx xxx Xxxxx,
Xx. and their descendants (iii) trusts for the benefit of any person(s)
described in clauses (i) and (ii) and (iv) entities which one or more of the
persons or entities described in clauses (i), (ii) or (iii) control. As used
herein, "descendants" shall include legally adopted persons; and "control" shall
mean the ability to direct the management and operation of the entity and the
ability of another party to approve management decisions shall not be deemed a
lack of control.
"business day" shall mean any day other than a Saturday, Sunday or other
day on which commercial banks are permitted or required to be closed in the
State of New York.
"Closing Date" shall mean the date on which the Closing occurs as provided
in Section 8.1.
"Environmental Laws" mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Resource Conservation and Recovery
Act of 1976, each as amended, together with all other applicable laws (including
rules, regulations, codes, plans, contaminant levels, clean-up levels,
injunctions, judgments, orders, decrees, rulings, and charges thereunder) of
federal, state, local, and foreign governments (and all agencies thereof)
concerning pollution or protection of the environment, including laws relating
to emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic or other materials or
wastes into ambient air, surface water, ground water, or lands or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal,
45
transport, or handling of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic or other materials or wastes; all to the extent applicable
to the Property or any operations conducted thereat.
"Governmental Authority" means any agency, bureau, commission, court,
department, official political subdivision, tribunal or other instrumentality of
any government whether federal, state, local, domestic or foreign.
"Hazardous Materials" means any substance, material, waste, gas or
particulate matter which (i) is regulated by the United States Government, the
State of New York, any other state with jurisdiction, or any local governmental
authority, or (ii) the exposure to, or manufacture, possession, presence, use,
generation, storage, transportation, treatment, release, disposal, abatement,
cleanup, removal, remediation or handling of is prohibited, controlled or
regulated by any Environmental Law, or (iii) requires investigation or
remediation under any Environmental Law or common law; provided, however, that
solvents, paints, cleaning materials and any other substances commonly used in
connection with the operation and/or maintenance of the Property shall not be
included in the foregoing definition so long as such materials are used, stored
and disposed of in accordance with Environmental Laws.
"Laws" shall mean any applicable law, rule, regulation (including, without
limitation, the Americans with Disabilities Act) or municipal ordinances, orders
or requirements that have been noted in or issued by any federal, state or
municipal department with competent jurisdiction.
"Person" shall mean an association, corporation, stock company, estate,
general partnership (including any Registered Limited Liability Partnership or
Foreign Limited Liability Partnership), limited association, limited liability
company, foreign limited liability company, joint venture, limited partnership,
natural person, real estate investment trust, business trust or other trust,
custodian, nominee or other individual in its own or any representative
capacity. In addition, the term means the heirs, executors, administrators,
legal representatives, successors and assigns of that "Person" where the context
so permits.
SIGNATURE PAGES TO FOLLOW
46
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
set forth above.
SELLER POOL COMPANIES:
BOSTON OLD COLONY INSURANCE COMPANY
By: _________________________
Name:
Title:
THE BUCKEYE UNION INSURANCE COMPANY
By: _________________________
Name:
Title:
COMMERCIAL INSURANCE COMPANY OF NEWARK, N.J.
By: _________________________
Name:
Title:
THE CONTINENTAL INSURANCE COMPANY
By: _________________________
Name:
Title:
47
THE CONTINENTAL INSURANCE COMPANY OF
NEWARK, NEW JERSEY
By: _________________________
Name:
Title:
THE FIDELITY AND CASUALTY INSURANCE
COMPANY OF NEW YORK
By: _________________________
Name:
Title:
FIREMEN'S INSURANCE COMPANY OF NEWARK,
NEW JERSEY
By: _________________________
Name:
Title:
THE GLENS FALLS INSURANCE COMPANY
By: _________________________
Name:
Title:
KANSAS CITY FIRE AND MARINE INSURANCE
COMPANY
By: _________________________
Name:
Title:
48
THE MAYFLOWER INSURANCE COMPANY, LTD.
By: _________________________
Name:
Title:
NATIONAL BEN FRANKLIN INSURANCE COMPANY
OF ILLINOIS
By: _________________________
Name:
Title:
NIAGARA FIRE INSURANCE COMPANY
By: _________________________
Name:
Title:
PURCHASER:
PGI-WvF 180, L.P.
By: _________________________
Name:
Title:
49
FIRST AMENDMENT TO SALE AND PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO SALE AND PURCHASE AGREEMENT (this "Amendment"),
dated as of the 26th day of January, 2001, is made by the SELLER POOL COMPANIES
listed on Exhibit A attached hereto having an office at CNA Plaza, 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Seller") and MAIDEN LANE, L.P. a New
York limited partnership having an office at c/o Paramount Group, Inc, 0000
Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and PGI-WvF 180, L.P., a New York limited partnership,
entered into a Sale and Purchase Agreement (as the same may be amended from time
to time, referred to hereinafter as the "Sale Agreement") for the sale of that
certain premises (the "Property") known as 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx;
WHEREAS, PGI-WvF 180, L.P. has changed its name to Paramount 180, L.P.
pursuant to that Second Amendment to Limited Partnership Agreement of PGI-WvF
180, L.P., dated as of December 15, 2000;
WHEREAS, Paramount 180, L.P. has assigned its interest in the Sale
Agreement to Purchaser pursuant to that certain Assignment and Assumption of
Sale and Purchase Agreement dated as of January 4 2001;
WHEREAS, Purchaser has elected to extend the Closing Date until
January 30, 2001 pursuant to Section 8.1(ii) of the Sale Agreement; and
WHEREAS, Seller and Purchaser desire to amend and modify the Sale Agreement
as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Purchaser agree that the Sale Agreement is hereby
amended as follows:
1. All capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Sale Agreement.
2. Exhibit A of the Sale Agreement is hereby deleted in its entirety, and
Exhibit A attached hereto is hereby substituted therefor, as Exhibit A to the
Sale Agreement.
3. Each of the entities executing this Amendment hereby agrees that it is
the Seller pursuant to the Sale Agreement and hereby ratifies, confirms and
agrees to be bound by the terms of the Sale Agreement, as modified by this
Amendment.
4. Each entity constituting Seller hereby agrees that upon request of
Purchaser it shall execute any documents, instruments, agreements or
certificates which Purchaser, in its reasonable discretion, deems necessary or
advisable in order to correct any document, instrument, agreement or certificate
executed by Seller at or prior to Closing in connection with the Sale Agreement
or in order to consummate the transaction contemplated by the Sale Agreement, as
modified by this Amendment.
5. Each entity constituting Seller hereby jointly and severally agrees to
indemnify, defend and hold harmless Purchaser, its partners and their respective
officers, directors, members, partners and affiliates from and against any and
all loss, cost, damage, liability or expense (including, without limitation,
reasonable attorneys fees and disbursements) suffered or incurred by such entity
as a result of any discrepancies between the legal and valid names of any entity
constituting Seller and the name of any entity constituting or purporting to
constitute a Seller as shown in the Sale Agreement, this Amendment or any
document, instrument, agreement or certificate executed by any entity
constituting or purporting to constitute a Seller at or prior to Closing.
6. The terms "this Agreement" or "Sale Agreement" as used herein or in the
Sale Agreement prior to the execution of this Amendment shall mean the Sale
Agreement as modified hereby.
7. Except as amended hereby, the terms and provisions of the Sale Agreement
remain unmodified and in full force and effect and are hereby in all respects
ratified and confirmed.
8. This Amendment may be executed in any number of counterparts, each of
which shall be an original, but all of such counterparts together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Amendment to be
executed as of the day and year first above written.
SELLER:
BOSTON OLD COLONY INSURANCE COMPANY
THE BUCKEYE UNION INSURANCE COMPANY
COMMERCIAL INSURANCE COMPANY OF NEWARK, N.J.
THE CONTINENTAL INSURANCE COMPANY
THE CONTINENTAL INSURANCE COMPANY OF NEW JERSEY
THE FIDELITY AND CASUALTY COMPANY OF NEW YORK
FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY
THE GLENS FALLS INSURANCE COMPANY
-2-
KANSAS CITY FIRE AND MARINE
INSURANCE COMPANY
THE MAYFLOWER INSURANCE COMPANY, LTD.
NATIONAL-BEN FRANKLIN INSURANCE
COMPANY OF ILLINOIS
NIAGARA FIRE INSURANCE COMPANY
By:
Name: Xxxxxxxx X. Xxxxx
as Vice President of each of the
companies listed above
PURCHASER:
MAIDEN LANE, L.P.
By: Xxxxxxxxx 000, L.P., its general partner
By: MRI-180 GP, LLC, its managing
general partner
By: ____________________________
Name:
Title:
-3-
EXHIBIT A
SELLER POOL COMPANIES
1. Boston Old Colony Insurance Company
2. The Buckeye Union Insurance Company
3. Commercial Insurance Company of Newark, N.J.
4. The Continental Insurance Company
5. The Continental Insurance Company of New Jersey
6. The Fidelity and Casualty Company of New York
7. Firemen's Insurance Company of Newark, New Jersey
8. The Glens Falls Insurance Company
9. Kansas City Fire and Marine Insurance Company
10. The Mayflower Insurance Company, Ltd.
11. National-Ben Franklin Insurance Company of Illinois
12. Niagara Fire Insurance Company
