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Exhibit 10.65
CORPORATE-PARTNERS, L.L.C.
OPTION AGREEMENT
This Option Agreement (the "AGREEMENT"), dated as of the 31st day of
July, 1997, is entered into by and between TOWER REALTY OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"), and Xxxxxxx
Xxxxxxx (the "GRANTOR").
RECITALS:
A. The Grantor owns a membership interest in Corporate-Partners,
L.L.C., an Arizona limited liability company (the "LLC").
B. The Operating Partnership desires to acquire through a contribution
to capital from the Grantor, and the Grantor desires to grant to the Operating
Partnership, an option to acquire, on the terms and conditions set forth herein,
all interests owned by the Grantor in the LLC as set forth on Schedule A
attached hereto and any other direct or indirect interests the Grantor may have,
whether now owned or hereinafter acquired, in the LLC, or in the properties
owned by the LLC (collectively, the "INTERESTS").
C. The Operating Partnership desires to acquire the Interests in
connection with (i) the formation of Tower Realty Trust, Inc., a Maryland
corporation (the "COMPANY"), which intends to qualify as a real estate
investment trust and which is the sole general partner and a limited partner of
the Operating Partnership, and (ii) the proposed initial public offering (the
"IPO") and concurrent private placement (collectively, "OFFERINGS") of shares of
the Company's common stock, par value $0.01 per share ("COMMON STOCK").
NOW, THEREFORE, in consideration of ten dollars ($10.00) paid by the
Operating Partnership to the Grantor, these premises, the mutual covenants and
conditions set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Operating
Partnership and Grantor agree as follows:
ARTICLE I: THE OPTION
1.1 Grant of Option. The Grantor hereby irrevocably grants to the
Operating Partnership the right and option (the "OPTION") to acquire through a
contribution to the capital of the Operating Partnership all the Grantor's
right, title and interest in the Interests, including but not limited to, the
Interests set forth on Schedule A attached hereto, on the terms and conditions
set forth herein.
1.2 Term and Exercise of Option. The Option may be exercised by the
Operating Partnership at any time from and after the date hereof through 5:00
p.m. on December 31, 1997 (the "OPTION TERMINATION DATE"); provided, that if on
the Option Termination Date the Operating Partnership or the Grantor is
prohibited by applicable law, or the Operating Partnership or the Grantor is
subject to a stay, order, injunction, or similar limitation or any pending or
threatened action or proceeding to enjoin, restrain, prohibit or assess
substantial damages in respect of the exercise by the Operating Partnership of
the Option, then the Option may be exercised by the Operating Partnership during
the 10 business day period commencing on the first business day following the
removal of each such prohibition, stay, order, injunction, action, proceeding or
similar limitation in effect at that time. Subject to the foregoing, if the
Operating Partnership does not exercise the Option by the Option Termination
Date, such Option shall be deemed terminated and shall be of no further force or
effect and the Grantor shall have no further obligations hereunder.
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1.3 Acquisition Consideration. The consideration (the "ACQUISITION
CONSIDERATION") to be received by the Grantor in respect of the contribution of
the Grantor's Interests to the Operating Partnership shall be an amount of cash
equal to $177,000.
ARTICLE II: CLOSING PROCEDURES
2.1 Purchase of Interests. Upon the Operating Partnership's exercise
of the Option, the Grantor shall, in accordance with Section 2.2 hereof,
transfer, assign, and convey to the Operating Partnership and the Operating
Partnership shall accept as a contribution to its capital from the Grantor, all
right, title and interest in and to the Interests, free and clear of all
Encumbrances (as defined in Section 3.1(a)), in exchange for the Acquisition
Consideration.
2.2 Closing; Conditions to Obligations. (a) (i) The Operating
Partnership shall exercise the Option by delivering to the Grantor a
notice (the "OPTION NOTICE"), which notice shall state the date (the
"CLOSING DATE") of the closing of the transactions contemplated by
Section 2.1 (the "CLOSING"), which date shall be no less than 10 days
and no more than 30 days following the date of such Option Notice.
(i) The Closing shall be held within the period specified in the
Option Notice at the offices of Battle Xxxxxx LLP, 75 East 55th Street,
New York, New York, or at the offices of the attorneys for the lead
underwriter of the IPO.
(ii) Following delivery of the Option Notice, the Operating
Partnership and the Grantor will at or prior to the Closing execute and
deliver all closing documents (the "CLOSING DOCUMENTS") required by the
Operating Partnership pursuant to Section 2.3 and, pending the Closing,
deposit such Closing Documents in escrow with Battle Xxxxxx, LLP as
escrow agent of the Operating Partnership (the "ESCROW AGENT").
(b) The Closing will occur simultaneously with the closing of the
Offerings (the "OFFERINGS CLOSING"); provided, that the Offerings Closing shall
be deemed to have occurred only if that portion of the net proceeds from the
Offerings which is to be contributed to the Operating Partnership by the Company
is sufficient, as determined by the Operating Partnership in its reasonable
discretion, to enable the Operating Partnership (i) to acquire all the
Interests, and (ii) to apply such portion of the net proceeds to acquire such
other properties or interests, to repay principal, interest and other amounts
due with respect to indebtedness and to meet such other obligations as may be
described in the Registration Statement on Form S-11 prepared and filed in
connection with the IPO (the "REGISTRATION STATEMENT"), as the same shall be in
effect on the day of the Offerings Closing.
(c) The following deliveries shall be made at the Closing:
(i) the Operating Partnership shall cause to be delivered to the
Escrow Agent or its designee the Acquisition Consideration delivered in
immediately available funds by check or wire transfer, and
(ii) upon receipt of the consideration set forth in clause (i)
above and the documents and deliveries required by Section 2.3, the
Escrow Agent will release the Closing Documents to the Operating
Partnership and deliver to the Grantor the Acquisition Consideration.
(d) Notwithstanding any other provision of this Agreement, the
Operating Partnership may, in its sole discretion, elect not to consummate the
contribution of all or any portion of the Interests as follows:
(i) in the event that the Grantor either identifies in its
Assignment as defined in and delivered pursuant to Section 2.3(a) a
breach of or other exception with respect to any of the
representations, warranties or covenants contained in Article III or
has otherwise breached this Agreement, or
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(ii) in the event that all authorizations, consents or approvals
of any governmental or administrative agency or authority or any third
party necessary in order to consummate the contribution of the
Interests, or there exists an order or judgment enjoining, restraining
or prohibiting, or assessing substantial damages in respect of such
consummation, or there shall be any action or proceeding instituted or
threatened in writing to enjoin, restrain, prohibit or assess
substantial damages in respect of such consummation,
then, the Operating Partnership shall, in lieu of the delivery of the
Acquisition Consideration pursuant to clause (c)(i) above, either
(x) in the case of an election not to consummate the contribution
of all of the Interests, notify the Escrow Agent of such election and
direct the Escrow Agent to return the Grantor's Closing Documents to
the Grantor, or
(y) in all other cases, equitably adjust the delivery with respect
to the Grantor pursuant to clause (c)(i) above to reflect the portion
of the Grantor's Interests with respect to which the purchase is
actually being made, which adjustment shall be determined in the
Operating Partnership's reasonable discretion, and shall in all events
be binding upon the Grantor.
(e) Except as the result of a default by the Grantor hereunder, if the
Closing does not occur within 30 days of the date of the Option Notice, then
neither the Operating Partnership nor the Grantor shall have any obligations
under the Closing Documents, the Closing Documents shall be deemed null and void
ab initio and the Operating Partnership will direct the Escrow Agent to destroy
the Closing Documents it holds. This Agreement shall thereafter remain in effect
and the Operating Partnership may thereafter exercise the Option again at any
time before the Option Termination Date.
2.3 Documents to Be Delivered at the Closing. At or prior to the
Closing, the Grantor shall, directly or through the attorney-in-fact appointed
pursuant to Article V hereof, execute, acknowledge where deemed necessary or
desirable by the Operating Partnership, and deliver to the Escrow Agent, in
addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be
in the form attached hereto as Exhibit A attached hereto and shall contain a
warranty of title that the Grantor owns the Interests free and clear of all
Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties
and the satisfaction of all covenants contained in Article III hereof,
or
(ii) if such reaffirmation cannot be made, identify those
representations, warranties and/or covenants contained in Article III
hereof which the Grantor can no longer make or comply with, represent
that the Grantor has used reasonable efforts to take such actions as
would permit the Grantor to make such representations and warranties
and/or to comply with such covenants, and reaffirm the accuracy of all
other representations and warranties and the satisfaction of all other
covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the
Grantor is a corporation, partnership, limited liability company or trust, a
certified copy of all necessary or appropriate corporate resolutions or
partnership, limited liability company or trust actions authorizing the
execution, delivery and performance by the Grantor of this Agreement and the
Closing Documents.
(c) If requested by the Operating Partnership in the case where the
Grantor is a corporation, partnership, limited liability company or trust, an
opinion from counsel for the Grantor in form and content reasonably acceptable
to the Operating Partnership substantially to the effect that:
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(i) the Grantor is a corporation, limited partnership, general
partnership, limited liability company or trust duly organized, validly
existing and in good standing under the laws of the state of its
organization and had and has all applicable power and authority to
execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of
this Agreement and the Closing Documents, and the transactions
contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's
charter and/or bylaws, partnership agreement, operating agreement
and articles of organization or declaration of trust, as
applicable, or, to the knowledge of such counsel, any indenture,
deed of trust, mortgage, loan or credit agreement or other
material agreement or instrument to which the Grantor is a party
or by which it or its assets or properties are bound or affected,
except for such breach or violation as the Operating Partnership
has represented and warranted will be waived or cured, or
discharged or repaid prior to or contemporaneously with the
Closing;
(B) to the knowledge of such counsel, constitute a violation
or any order, judgment or decree to which the Grantor is a party
or by which it or any of its assets or properties are bound or
affected; or
(C) to the knowledge of such counsel, result in the creation
of any lien, charge or encumbrance upon any of the Grantor's
assets or properties, except for Permitted Pledges (as defined in
Section 3.1(a)); and
(iii) all applicable corporate, partnership, limited liability
company or trust action necessary for the Grantor to execute and deliver this
Agreement and the Closing Documents and to perform the transactions contemplated
hereby and thereby has been taken and that the same have been validly executed
and delivered and are the valid and binding obligations of the Grantor
enforceable against it in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors' rights and remedies generally.
(d) An affidavit establishing an exemption from the withholding
requirements of the Foreign Investment in Real Property Tax Act ("FIRPTA"), as
amended, provided, however, that if the Grantor fails to provide such an
affidavit, the Operating Partnership shall be entitled to withhold from the
Acquisition Consideration and pay to the Internal Revenue Service the sums
required to be withheld pursuant to FIRPTA (and the amount so withheld shall be
paid by the Operating Partnership to the Internal Revenue Service, in order for
the Operating Partnership to comply with the provisions of Section 1445 of the
Internal Revenue Code of 1986 or successor similar legislation, as the same may
be amended hereafter).
(e) Any other documents, agreements or instruments as the Operating
Partnership shall reasonably request in order to assign, transfer and convey the
Grantor's Interests to the Operating Partnership and to otherwise effect the
transactions contemplated hereby, including filings with any applicable
governmental jurisdiction in which the Operating Partnership is required to file
its partnership documentation.
2.4 Cessation of Offerings. If at any time the Board of Directors of
the Company determines in good faith to abandon the formation of the Company or
the Offerings, the Operating Partnership will so advise the Grantor in writing
and thereupon all parties hereto will be relieved of all obligations under this
Agreement and all Closing Documents (except for obligations arising under
Sections 2.5, 2.6, 3.5, 4.2 and 6.10).
2.5 Closing Costs. The Operating Partnership agrees to pay all of the
closing costs, other than the Grantor's legal fees, arising from the purchase of
the Interests pursuant to the exercise by the Operating Partnership of the
Option.
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2.6 Default. (a) If after having exercised the Option, the Operating
Partnership fails to consummate the transactions contemplated hereby (including
a failure due to the Offerings Closing not having occurred), then the Operating
Partnership will pay to the Grantor the sum of $100.00 as liquidated and agreed
upon damages. The parties acknowledge that it would be difficult, if not
impossible, to ascertain the actual measure of the Grantor's damages in the
event of the Operating Partnership's default and the parties agree that $100.00
is a fair reflection of the Grantor's damages in such event.
(b) If the Grantor defaults with respect to its obligations under this
Agreement, the Operating Partnership shall be entitled to exercise against the
Grantor any and all remedies provided at law or in equity, including but not
limited to, the right of specific performance.
2.7 Further Assurances. The Grantor will, from time to time, execute
and deliver to the Operating Partnership all such other and further instruments
and documents and take or cause to be taken all such other and further action as
the Operating Partnership may reasonably request in order to effect the
transactions contemplated by this Agreement, including instruments or documents
deemed necessary or desirable by the Operating Partnership to effect and
evidence the purchase of the Grantor's Interests by the Operating Partnership in
accordance with the terms of this Agreement.
ARTICLE III:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE GRANTOR
As a material inducement to the Operating Partnership to enter into
this Agreement and to consummate the transactions contemplated hereby, the
Grantor hereby makes to the Operating Partnership each of the representations
and warranties set forth in this Article III, which representations and
warranties (unless otherwise noted) are true as of the date hereof. As a
condition to the Operating Partnership's obligation to purchase the Interests
after the exercise of the Option, such representations and warranties must be
true as of the Closing Date.
3.1 Title to Interests. (a) Except as set forth on Schedule C attached
hereto, the Grantor owns beneficially and of record, free and clear of any
claim, lien, pledge (except for pledges relating to the debt or equity financing
of any real property owned by the LLC (any such pledge, a "PERMITTED PLEDGE")),
voting agreement, option, charge, security interest, mortgage, deed of trust,
encumbrance, right of assignment, purchase right or other rights of any nature
whatsoever (each, an "ENCUMBRANCE"), and has full power and authority to convey
free and clear of any Encumbrances, its Interests and, upon delivery of an
Assignment by the Grantor conveying its Interests and delivery of the
Acquisition Consideration by the Operating Partnership for such Interests as
herein provided, the Operating Partnership will acquire good and valid title
thereto, free and clear of any Encumbrance, except Encumbrances created in favor
of the Operating Partnership by the transactions contemplated hereby.
(b) Each of the Grantor's Interests representing an interest in the
LLC has been validly issued and the Grantor has funded (or will fund before the
same is past due) all capital contributions and advances to the LLC in which
such Interest represents an interest that are required to be funded or advanced
prior to the date hereof and the Closing.
(c) There are no agreements, instruments or understandings with
respect to any of the Interests except, in the case of any Interest constituting
an interest in the LLC, as set forth in the operating agreement of the LLC.
(d) The Grantor has no interest, either direct or indirect, in any of
the partnerships or properties set forth on Schedule D attached hereto
(the"Other Partnerships and Properties") except for the Interests identified on
Schedule A which are the subject of this Agreement, and other interests in the
Other Partnerships and Properties which are the subject of other, similar,
option agreements with the Operating Partnership.
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(e) No Permitted Pledge will be in existence as of the date of the
Closing, and the Grantor shall provide, at the Closing, such documentary
evidence of the release of any Permitted Pledge as the Operating Partnership may
reasonably request.
(f) In making the representations in this Section 3.1 regarding the
absence of Encumbrances, the Grantor may assume that the consents and waivers of
rights set forth in Section 6.9 hereof have been given by all members of the
LLC, partners in partnerships, members of limited liability companies or
beneficiaries of trusts (in each case, only in their capacity as such) in which
the Grantor's Interests represent direct or indirect interests.
3.2 Organization; Authority; No Conflicts. (a) If the Grantor is not a
natural person, it is a corporation, limited partnership, general partnership,
limited liability company or trust duly organized, validly existing and in good
standing under the laws of the state of its organization.
(b) The Grantor has full right, authority, power and capacity:
(i) to execute and deliver this Agreement, each Closing
Document and each other agreement, document and instrument to be
executed and delivered by or on behalf of the Grantor pursuant to this
Agreement;
(ii) to perform the transactions contemplated hereby and
thereby; and
(iii) to transfer, assign, convey and deliver all of the
Interests to the Operating Partnership in accordance with this
Agreement.
(c) All applicable corporate, partnership, limited liability company,
trust or other action necessary for Grantor to execute and deliver this
Agreement, the Closing Documents and each other agreement, document and
instrument executed by or on behalf of the Grantor pursuant to this Agreement,
and to perform the transactions contemplated hereby and thereby, has been taken,
or will be taken prior to the Closing Date.
(d) This Agreement, each Closing Document and each other agreement,
document and instrument executed and delivered by or on behalf of the Grantor
pursuant to this Agreement constitutes, or when executed and delivered will
constitute, the legal, valid and binding obligation of the Grantor, each
enforceable in accordance with its respective terms.
(e) Except for any breaches, violations or defaults which will be
waived or cured, or discharged or repaid prior to or contemporaneously with the
Closing, the execution, delivery and performance of this Agreement, the Closing
Documents and each other agreement, document and instrument to be executed and
delivered by or on behalf of the Grantor:
(i) does not and will not violate the Grantor's charter and/or
bylaws, partnership agreement, operating agreement or declaration of
trust, as applicable;
(ii) does not and will not violate any foreign, federal, state,
local or other laws applicable to the Grantor or require the Grantor to
obtain any approval, consent or waiver of, or make any filing with, any
person or authority (governmental or otherwise) that has not been
obtained or made and which does not remain in effect; and
(iii) does not and will not result in a breach or a violation
of, constitute a default under, accelerate any obligation under or give
rise to a right of termination of, any indenture, deed of trust,
mortgage, loan or credit agreement or any other agreement, contract,
instrument, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which the
Grantor is a party or by which
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the property of the Grantor is bound or affected, or result in the
creation of any Encumbrance on any of the property or assets of any LLC
in which any Interest of the Grantor represents an interest.
(f) In making the representations set forth in this Section 3.2, the
Grantor may assume
(i) that the consents and waivers of rights set forth in
Section 6.9 hereof have been given by all members of the LLC, partners
in partnerships, members of limited liability companies or
beneficiaries of trusts (in each case, only in their capacity as such)
in which the Grantor's Interests represent direct or indirect interests
and
(ii) that, for purposes of making such representation as of the
date hereof, any Permitted Pledge has been released.
3.3 Litigation. (a) The Grantor knows of no litigation or proceeding,
whether judicial, administrative or arbitral, pending or overtly threatened,
affecting all or any portion of the Interests or the Grantor's ability to
consummate the transactions contemplated hereby.
(b) The Grantor knows of no outstanding order, writ, injunction or
decree of any court, government, governmental entity or authority or arbitration
against or affecting all or any portion of its Interests, which in any such case
would impair the Grantor's ability to enter into and perform all of its
obligations under this Agreement.
3.4 No Other Agreements. (a) The Grantor has made no agreement with,
and will not enter into any agreement with, and has no obligation (absolute or
contingent) to, any other person or entity to sell, transfer, dispose of or in
any way encumber any of the Interests or restricting in any way the Grantor's
ability to sell the Interests to the Operating Partnership or to enter into any
agreement with respect to the Interests.
(b) In making the representations set forth in this Section 3.4, the
Grantor may assume
(i) that the consents and waivers of rights set forth in
Section 6.9 hereof have been given by all members of the LLC, partners
in partnerships, members of limited liability companies or
beneficiaries of trusts (in each case, only in their capacity as such)
in which the Grantor's Interests represent direct or indirect interests
and
(ii) that, for purposes of making such representations as of
the date hereof, any Permitted Pledge has been released.
3.5 No Brokers. The Grantor has not entered into, and covenants that
it will not enter into, any agreement, arrangement or understanding with any
person or entity which will result in the obligation of the Operating
Partnership to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
3.6 Covenant to Remedy Breaches. The Grantor covenants to use all
reasonable efforts within its control
(a) to prevent the breach of any representation or warranty of the
Grantor hereunder,
(b) to satisfy all covenants of the Grantor hereunder and
(c) to promptly clear any breach of a representation, warranty or
covenant of the Grantor hereunder upon its learning of same.
3.7 Use of Acquisition Consideration. The Grantor covenants to apply
all of the proceeds received as Acquisition Consideration to purchase the
Company's stock, either directly from the Company (or the underwriter
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in the form of issuer directed stock) upon consummation of the IPO or in the
public market promptly following consummation of the IPO.
ARTICLE IV:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE OPERATING PARTNERSHIP
As a material inducement to the Grantor to enter into this Agreement
and to consummate the transactions contemplated hereby, the Operating
Partnership hereby makes to the Grantor each of the representations and
warranties set forth in this Article IV, which representations and warranties
are true as of the date hereof and shall be true as of the date of the Closing.
4.1 Authority. (a) The Operating Partnership is a limited partnership
duly organized, validly existing and in good standing under the laws of the
state of Delaware.
(b) The Operating Partnership has full right, authority, power and
capacity:
(i) to execute and deliver this Agreement, each Closing
Document to which it is a party and each other agreement, document and
instrument to be executed and delivered by or on behalf of it pursuant
to this Agreement and
(ii) to perform the transactions contemplated hereby and
thereby.
(c) This Agreement, each Closing Document to which the Operating
Partnership is a party and each agreement, document and instrument executed and
delivered by the Operating Partnership pursuant to this Agreement constitutes,
or when executed and delivered will constitute, the legal, valid and binding
obligation of the Operating Partnership, each enforceable in accordance with its
respective terms.
(d) The execution, delivery and performance of this Agreement, each
Closing Document to which the Operating Partnership is a party and each such
agreement, document and instrument by the Operating Partnership:
(i) does not and will not violate the partnership agreement of
the Operating Partnership;
(ii) does not and will not violate any foreign, federal, state,
local or other laws applicable to the Operating Partnership or require
the Operating Partnership to obtain any approval, consent or waiver of,
or make any filing with, any person or authority (governmental or
otherwise) that has not been obtained or made and which does not remain
in effect; and
(iii) does not and will not result in a breach or a violation
of, constitute a default under, accelerate any obligation under or give
rise to a right of termination of, any indenture, deed of trust,
mortgage, loan or credit agreement, any other material agreement,
contract, instrument, lease, permit or authorization, or any order,
writ, judgment, injunction, decree, determination or arbitration award
to which the Operating Partnership is a party or by which the property
of the Operating Partnership is bound or affected.
4.2 No Brokers. The Operating Partnership has not entered into, and
covenants that it will not enter into, any agreement, arrangement or
understanding with any person or entity which will result in the obligation of
any Grantor to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
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ARTICLE V: POWER OF ATTORNEY
5.1 Grant of Power of Attorney. (a) The Grantor does hereby
irrevocably appoint Xxxxxxxx X. Xxxxxxx, Xxxxxx Xxx and the Operating
Partnership, and each of them individually, with full power of substitution
(each such person or the Operating Partnership or any such successor of any of
them acting in his, her or its capacity as attorney-in-fact pursuant hereto, an
"ATTORNEY-IN-FACT"), as the true and lawful attorney-in-fact and agent of the
Grantor, to act in the name, place and stead of the Grantor:
(i) To take for the Grantor all steps deemed necessary or
advisable by the Operating Partnership in connection with the
Offerings, including without limitation
(A) filing a registration statement and amendments
thereto (the "Registration Statement") under the Securities Act
which describes the benefit to be received by the Grantor in
connection with the formation of the Company and the offering of
the Company's Common Stock,
(B) distributing a preliminary prospectus and prospectus
regarding the offering of the Company's Common Stock
(respectively, the "PRELIMINARY PROSPECTUS" and "PROSPECTUS")
which contain such information as is deemed necessary or
desirable to lawfully effect the IPO, and preliminary and final
offering memoranda regarding the offering of the Company's
Common Stock in the concurrent private placement, which contain
such information as is deemed necessary or desirable to effect
the concurrent private placement, and
(C) to take such other steps as the Attorney-in-Fact may
deem necessary or advisable.
(ii) To make, execute, acknowledge and deliver all such other
contracts, orders, receipts, notices, requests, instructions,
certificates, consents, letters and other writings (including without
limitation the Closing Documents, any other documents relating to the
sale of the Grantor's Interests to the Operating Partnership, and any
consents contemplated by Section 6.9 hereof) and, in general, to do all
things and to take all actions which the Attorney-in-Fact in its sole
discretion may consider necessary or proper in connection with or to
carry out the transactions contemplated by this Agreement and the
Closing Documents as fully as could the Grantor if personally present
and acting.
(b) (i) The Power of Attorney granted by the Grantor pursuant to
this Article V and all authority conferred hereby is granted and
conferred subject to and in consideration of the interest of the
Operating Partnership and the Company and is for the purpose of
completing the transactions contemplated by this Agreement.
(ii) The Power of Attorney of the Grantor granted hereby and all
authority conferred hereby is coupled with an interest and therefore
shall be irrevocable and shall not be terminated by any act of the
Grantor or by operation of law, whether by the death, disability,
incapacity, dissolution or liquidation of the Grantor or by the
occurrence of any other event or events (including without limitation
the termination of any trust or estate for which the Grantor is acting
as a fiduciary or fiduciaries), and if, after the execution hereof, the
Grantor shall die or become disabled or incapacitated or is dissolved
or liquidated, or if any other such event or events shall occur before
the completion of the transactions contemplated by this Agreement, each
Attorney-in-Fact shall nevertheless be authorized and directed to
complete all such transactions as if such death, disability,
incapacity, dissolution, liquidation or other event or events had not
occurred and regardless of notice thereof.
(c) The Grantor agrees that, at the request of the Operating
Partnership, it will promptly execute a separate power of attorney on the same
terms set forth in this Article V, such execution to be witnessed and notarized.
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(d) The Grantor acknowledges that Xxxxxxxx Xxxxxxx, Xxxxxx Xxx and the
Operating Partnership have, and any successor thereof acting as Attorney-in-Fact
may have, an economic interest in the transactions contemplated by this
Agreement.
5.2 Limitation on Liability. (a) It is understood that each
Attorney-in-Fact assumes no responsibility or liability to any person by virtue
of the Power of Attorney granted by the Grantor hereby.
(b) Each Attorney-in-Fact makes no representations with respect to and
shall have no responsibility for the formation of the Company, the purchase of
the Interests by the Operating Partnership, the Registration Statement, the
Prospectus or any Preliminary Prospectus, nor for any aspect of either Offering,
and it shall not be liable for any error of judgment or for any act done or
omitted or for any mistake of fact or law except for its own gross negligence or
bad faith.
(c) The Grantor agrees to indemnify each Attorney-in-Fact for and to
hold each Attorney-in-Fact harmless against any loss, claim, damage or liability
incurred or in part arising out of or in connection with its acting as
Attorney-in-Fact under the Power of Attorney created by the Grantor hereby, as
well as the cost and expense of investigating and defending against any such
loss, claim, damage or liability, except to the extent such loss, claim, damage
or liability is due to the gross negligence or bad faith of such
Attorney-in-Fact.
(d) The Grantor agrees that each Attorney-in-Fact may consult with
counsel of its own choice (who may be counsel for the Operating Partnership
and/or the Company) and it shall have full and complete authorization and
protection for any action taken or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel.
5.3 Ratification; Third Party Reliance. The Grantor does hereby ratify
and confirm all that any Attorney-in- Fact shall lawfully do or cause to be done
by virtue of the exercise of the powers granted unto it by the Grantor
hereunder, and the Grantor authorizes the reliance of third parties on this
Power of Attorney and waives its right, if any, as against any such third party
for its reliance hereon.
ARTICLE VI: MISCELLANEOUS
6.1 Amendment and Waiver. Any amendment hereto shall be effective only
against those parties hereto who have acknowledged in writing their consent to
such amendment. This Agreement shall not be amended without notice to or the
consent of any Grantor for the purpose of adding additional Grantors as parties
hereto or deleting Grantors as parties hereto and conforming Schedules A and B
in connection with such additions or deletions. No waiver of any provisions of
this Agreement shall be valid unless in writing and signed by the party against
whom enforcement is sought.
6.2 Entire Agreement; Counterparts; Applicable Law. This Agreement
(a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof,
(b) may be executed in several counterparts, each of which will be
deemed an original and all of which shall constitute one and the same instrument
and
(c) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of New York, without giving
effect to the conflicts of law provisions thereof.
6.3 Assignability. This Agreement shall be binding upon, and shall be
enforceable by and inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and assigns; provided,
however, that
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this Agreement may not be assigned (except by operation of law) by the Operating
Partnership without the prior written consent of the Grantor, or by the Grantor
without the prior written consent of the Operating Partnership, and any
attempted assignment without such consent shall be void and of no effect;
provided, further, however, that the Operating Partnership may assign all or any
portion of this Agreement and the Closing Documents and any agreement
contemplated hereunder or thereunder to the Company or to an affiliate of the
Operating Partnership or the Company without the consent of the Grantor.
6.4 Titles. The titles and captions of the Articles, Sections and
paragraphs of this Agreement are included for convenience of reference only and
shall have no effect on the construction or meaning of this Agreement.
6.5 Third Party Beneficiary. No provision of this Agreement is
intended, nor shall it be interpreted, to provide or create any third party
beneficiary right or any other right of any kind in any customer, affiliate,
stockholder, partner, director, officer or employee of any party hereto or any
other person or entity, provided, however, that Article V and Sections 6.3 and
6.9 of this Agreement shall be enforceable by and shall inure to the benefit of
the persons described therein.
6.6 Severability. (a) If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto.
(b) The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
the void or unenforceable provision and to execute any amendment, consent or
agreement deemed necessary or desirable by the Operating Partnership to effect
such replacement.
6.7 Equitable Remedies. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any federal or state court
located in the State of New York (as to which the parties agree to submit to
jurisdiction for the purposes of such action), this being in addition to any
other remedy to which they are entitled under this Agreement or otherwise at law
or in equity.
6.8 Notices; Exercise of Option. Any notice or demand which must or
may be given under this Agreement (including the exercise by the Operating
Partnership of the Option) or by law shall, except as otherwise provided, be in
writing and shall be deemed to have been given (i) when physically received by
personal delivery (which shall include the confirmed receipt of a telecopied
facsimile transmission), (ii) three (3) business days after being deposited in
the United States certified or registered mail, return receipt requested,
postage prepaid, or (iii) one (1) business day after being deposited with a
nationally known commercial courier service utilizing its next day delivery
service (such as Federal Express); addressed and delivered or telecopied in the
case of a notice to the Operating Partnership to the following address and
telecopy number:
Tower Realty Operating Partnership, L.P.
c/o Feldman Equities
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Phone: (000)000-0000
Telecopy: (000)000-0000
11
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with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
Phone: (000)000-0000
Telecopy: (000)000-0000
and addressed and delivered or telecopied, in the case of a notice to the
Grantor, to the address and telecopy number set forth under the Grantor's name
in Schedule A hereto.
6.9 Waiver of Rights; Consents with Respect to Partnership Interests.
(a) The Grantor acknowledges that the agreements contained herein and the
transactions contemplated hereby and any actions taken in contemplation of the
transactions contemplated hereby (including the declaration of any dividend or
distribution in the form of Interests) may conflict with, and may not have been
contemplated by, the partnership agreement of one or more Other Partnerships in
which one or more of the Interests represent a direct or indirect interest or
another agreement among one or more holders of such Interests or one or more of
the partners of any such partnership.
(b) With respect to each Other Partnership in which the Interests
represents a direct or indirect interest, the Grantor expressly gives all
Consents (as defined below) (and any consent necessary to authorize the proper
parties in interest to give all Consents) and Waivers (as defined below)
necessary or desirable to facilitate any Conveyance Action (as defined below)
relating to such partnership (as such terms are defined below).
(c) The Grantor further agrees that the Grantor will take no action to
enjoin, or seek damages resulting from, any Conveyance Action by any holder of a
direct or indirect interest in a partnership in which an Interest of the Grantor
represents a direct or indirect interest.
(d) The Waivers and Consent contained in this Section 6.9 shall
terminate upon the termination of this Agreement, except as to transactions
completed hereunder prior to termination.
(e) (i) As used herein, the term "CONVEYANCE ACTION" means, with
respect to any Other Partnership having a direct or indirect ownership
interest in any property,
(ii) the conveyance or agreement to convey by a partner thereof
or by any holder of an indirect interest therein of its direct or
indirect interest in such partnership to the Operating Partnership or
the Company or to another person in connection with the formation of
the Operating Partnership or the Company as described in the
Registration Statement, or
(iii) the entering into by any such partner or holder of any
agreement relating to
(A) the formation of the Operating Partnership or the
Company as described in the Registration Statement,
(B) the direct or indirect acquisition by the Operating
Partnership or the Company of any such direct or indirect
interest, or
(C) the transactions described in or contemplated by the
Registration Statement, or
(iv) the taking by any such partner or holder of any action
necessary or desirable to facilitate any of the foregoing, including,
without limitation, the following (provided that the same are taken in
furtherance of the foregoing):
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(A) any sale or distribution to any person of a direct or
indirect interest in such partnership or an undivided
tenant-in-common interest in the property represented by such
partnership interest,
(B) the entering into of any agreement with any person or
entity that grants to such person or entity the right to
purchase a direct or indirect interest in such partnership, and
(C) the giving of the Consents and Waivers contained in
this Section 6.9 or consents or waivers similar thereto in form
or purpose.
(v) As used herein, the term "CONSENTS" means, with respect to
any such partnership, any consent deemed by the Operating Partnership
to be necessary or desirable under the partnership agreement of such
partnership or any other agreement among all or any of the holders of
interests therein or any other agreement relating thereto or referred
to therein
(A) to permit any and all Conveyance Actions relating to
such partnership or to amend such partnership agreement and/or
other agreements so that no provision thereof prohibit,
restricts, impairs or interferes with any Conveyance Action
(such amendment to include, without limitation, the deletion of
provisions which cause a default under such agreement if
interests therein are transferred for other than cash),
(B) to admit the Operating Partnership (or the Company or
any affiliate of the Operating Partnership or the Company in
accordance with Section 6.3 above) as a substitute limited
partner or general partner of such partnership upon the
Operating Partnership's acquisition of a limited or general
partner interest therein, respectively, and to adopt such
amendment as is necessary or desirable to effect such admission,
(C) to adopt any amendment as may be deemed desirable by
the Operating Partnership, either simultaneously with or
immediately prior to the acquisition of a limited or general
partnership interest therein, provided, however, that such
amendment will not result in any increased liability on the part
of any Grantor hereunder or under the applicable partnership
agreement, and
(D) to continue such partnership following the transfer
of interests therein to the Operating Partnership (or the
Company or any affiliate of the Operating Partnership or the
Company in accordance with Section 6.3 above).
(vi) As used herein, the term "WAIVERS" means, with respect to
a partnership of which an Interest represents a direct or indirect
interest, the waiving of any and all rights that the Grantor may have
with respect to, and (to the extent possible) that any other person may
have with respect to, or that may accrue to the Grantor or other person
upon the occurrence of, a Conveyance Action relating to such
partnership, including, but not limited to, the following rights:
(A) rights of notice,
(B) rights to response periods,
(C) rights to purchase the direct or indirect interest of
another partner in such partnership (or the Interests
represented by such partnership interest) or to sell the
Grantor's or other person's direct or indirect interest therein
to another partner,
(D) rights to sell the Grantor's or other person's direct
or indirect interest therein at a price other than as provided
herein, or
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(E) rights to prohibit, limit, invalidate, otherwise
restrict or impair any such Conveyance Action or to cause a
termination or dissolution of such partnership because of such
Conveyance Action.
(f) The Grantor by its execution hereof
(i) with respect to each Other Partnership in which an
Interest owned by the Grantor represents a direct or indirect interest
therein, gives such consent as is necessary to cause each partnership,
as applicable, to have authority to transfer all or substantially all
of the assets of such partnership to the Operating Partnership on such
terms and conditions as such Other Partnership and the Operating
Partnership may agree; and
(ii) agrees that the Grantor's Acquisition Consideration may be
reduced to reflect such direct transfer of assets and the consequent
receipt of cash and other consideration directly by such Other
Partnership, provided that the total consideration to be received by
the Grantor either directly hereunder or indirectly through the receipt
of distributions from an Other Partnership shall equal Grantor's
Acquisition Consideration.
(g) (i) The Grantor by its execution hereof gives such consent as
is necessary to cause, with respect to the partnership agreement of
each partnership in which an Interest of the Grantor represents,
directly or indirectly, a limited partner or general partner interest,
an amendment thereto to enable such partnership, to the extent
permissible under applicable law,
(A) to admit the Operating Partnership (or the Company or
any affiliate of the Operating Partnership or the Company in
accordance with Section 6.3 above) as a substitute limited
partner therein and/or a substitute general partner therein if
the Operating Partnership (or the Company or any affiliate of
the Operating Partnership or the Company in accordance with
Section 6.3 above) by the exercise of the Option acquires a
limited partnership interest or a general partnership interest
in such partnership,
(B) to redeem the interest of any other partner therein
who has not agreed to become a party to this Agreement,
(C) to distribute to all partners thereof, including any
partner who has not agreed to become a party to this Agreement,
OP Units and cash (in such proportions to each partner therein
as the general partner or general partners thereof may
determine, provided that the Grantor receives as a result of all
such distributions and the direct payment of consideration
hereunder, the amount of cash that is in conformity with the
Acquisition Consideration of the Grantor provided for herein),
and thereafter, at the Operating Partnership's option, to
dissolve, and
(D) any such other amendment as the Operating Partnership
may deem desirable,
provided that such amendment occurs simultaneously with or immediately
prior to the acquisition of the applicable partnership interest, and
provided further, that such amendment will not result in any increased
liability on the part of any Grantor hereunder or under the applicable
partnership agreement.
(ii) Each Attorney-in-Fact may on behalf of the Grantor execute
such consents, amendments or other instruments as it deems necessary or
desirable in connection with the foregoing.
6.10 Confidentiality. (a) The Grantor shall treat as strictly
confidential the fact that the Company is contemplating an offering of its
Common Stock until such time as the Company has filed the Registration Statement
with the Securities and Exchange Commission, and shall not communicate at any
time the terms of this Agreement
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15
to any person other than counsel or advisors to the Grantor who agree to keep
such terms confidential and any lender holding a lien on any Interests.
(b) The Grantor shall treat all information received from the
Operating Partnership or its counsel or advisors pertaining to the Operating
Partnership or the Company confidential and shall disseminate same only to
counsel to the Grantor who agree to keep such information confidential.
6.11 Computation of Time. Any time period provided for herein which
shall end on a Saturday, Sunday or bank or legal holiday shall extend to 5:00
p.m. of the next full business day. All times are New York City time.
6.12 Survival. It is the express intention and agreement of the parties
hereto that the representations, warranties and covenants of the Grantor set
forth in this Agreement shall survive the consummation of the transactions
contemplated hereby.
6.13 Time of the Essence. Time is of the essence with respect to all
obligations of the Grantor under this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
OPERATING PARTNERSHIP:
TOWER REALTY OPERATING
PARTNERSHIP, L.P.
By: TOWER REALTY TRUST, INC.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer and
President
/s/ Xxxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxxx Xxxxxxx
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Schedule A
Interests
Grantor's Name & Address Description of Interests
------------------------ ------------------------
Xxxxxxx Xxxxxxx 5.9% Membership Interest in
c/x Xxxxxxx Corporate-Partners, L.L.C.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
18
Schedule B
Form of Acquisition Consideration
$[ ] in Cash
19
Schedule C
Exceptions to Title
None
20
Schedule D
Interests in Other Partnerships and Properties (see below)
None
Other Partnerships & Properties
Property Partnership Owner
-------- -----------------
1. 000 Xxxxxxx Xxxxxx 000 Xxxxxxx, X.X.
Xxx Xxxx, Xxx Xxxx
0. 000 Xxxxxxx Xxxxxx 000 Xxxxxxx, X.X.
Xxx Xxxx, Xxx Xxxx
0. 000 Xxxxxxx Xxxxxx 292 Madison, L.P.
New York, New York
4. 120 Executive Centre Tower Mineola Limited Partnership
Mineola, New York (former owner was CXX Mineola Limited
Partnership)
5. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000-00 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
6. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
7. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
8. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
9. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
10. Corporate Center Building 9630 Corporate Center Associates, Limited Partnership
Phoenix, Arizona
11. 0000 Xxxxx Xxxxxxx Xxxxxx 2800 Associates, L.P.
Phoenix, Arizona
12. Century Plaza Executive Villas Limited Partnership
Phoenix, Arizona
13. 0000 X. Xxxxxxxx Xxxx Xxxxxxxx 5151 Limited Partnership
Tucson, Arizona
14. One Orlando Center Magnolia Associates Limited Partnership
Orlando, Florida
15. Maitland Forum Maitland Property Investors, Ltd.
Maitland, Florida
16. 0000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxx Associates Limited Partnership
Maitland, Florida
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Property Partnership Owner
-------- -----------------
17. 0000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxx Associates Limited Partnership
Maitland, Florida
18. 0000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxx Associates Limited Partnership
Maitland, Florida
19. 0000 Xxxxx Xxxx. 5750 Associates Limited Partnership
Orlando, Florida
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Exhibit A
Form of Assignment
ASSIGNMENT
In exchange for the consideration set forth in the Option Agreement,
dated July __, 1997, by and between the undersigned and Tower Realty Operating
Partnership, L.P., a Delaware limited partnership (the "Operating Partnership"),
the receipt and sufficiency of which is hereby acknowledged, ______________ (the
"Assignor") hereby assigns, transfers and conveys to the Operating Partnership,
his entire right, title and interest in and to all interests directly or
indirectly held by him in Corporate- Partners, L.L.C., an Arizona limited
liability company (the "LLC"), or in the Corporate Center Properties which are
located in Phoenix, Arizona (the "Interests"), including, without limitation,
all rights to receive distributions of money, profits and other assets from or
relating to the LLC, presently existing or hereafter arising or accruing, TO
HAVE AND TO HOLD the same unto the Operating Partnership, its successors and
assigns, forever. The undersigned represents and warrants that he has not
transferred, sold, pledged or hypothecated, or otherwise disposed of or
encumbered, the Interests. The undersigned hereby releases the LLC and its
members (but only in their capacity as members of the LLC and in connection with
the LLC) from any and all liabilities or obligations now or hereafter owing to
the undersigned, arising out of and pursuant to the Operating Agreement of the
LLC. The Operating Partnership hereby assumes all obligations in respect of the
Interests.
Upon the execution and delivery of this Assignment, the undersigned
withdraws from the LLC for all purposes.
Dated: _______________, 1997
__________________________
[GRANTOR]
Accepted and agreed:
TOWER REALTY OPERATING
PARTNERSHIP, L.P.
By: Tower Realty Trust, Inc., its general
partner
By:_____________________________
Xxxxxxxx X. Xxxxxxx
President
23
Agreed:
TOWER 45 ASSOCIATES LIMITED PARTNERSHIP
By: TOWER 45, INC., its
general partner
By:___________________________________
Xxxxxxxx X. Xxxxxxx
President
TOWER 45, INC.
By:____________________________________
Xxxxxxxx X. Xxxxxxx
President
24
XXXXXXX XXXXXXX
AMENDMENT NO. 1 TO OPTION AGREEMENT
This Amendment No. 1 to the Option Agreement ("AMENDMENT NO. 1"), dated
as of the 18th day of September 1997, is entered into by and between TOWER
REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the
"OPERATING PARTNERSHIP"), and Xxxxxxx Xxxxxxx (the "GRANTOR").
R E C I T A L S:
WHEREAS, an Option Agreement was entered into as of the 31st day of
July, 1997 by and among the Operating Partnership and the Grantor (the "OPTION
AGREEMENT"); and
WHEREAS, the parties desire to amend certain provisions of the Option
Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Section 1.3 of Article I of the Option Agreement is hereby amended
and restated to read in its entirety, as follows:
"1.3 Acquisition Consideration. The consideration (the
"ACQUISITION CONSIDERATION") to be received by the Grantor in
respect of the contribution of the Grantor's Interests to the
Operating Partnership shall be an amount of cash equal to
$192,816.50; provided, that, if there is a change in (a) the
range of prices for the sale of common stock, par value $.01
per share, of the Company in the IPO (as hereinafter defined)
or (b) the number of OP Units (as such term is defined in the
OP Agreement (as hereinafter defined)) issuable to the
management of the Company, each as set forth in the
preliminary prospectus of the Company, dated September 23,
1997, then the Consideration in respect of the Commercial
Interest shall be modified to an amount determined in good
faith by Xxxxxxxx X. Xxxxxxx, which determination shall be
binding upon the parties."
2. Schedule B to the Option Agreement is hereby amended and restated
to read in its entirety as set forth in Schedule B annexed hereto.
3. Except as amended hereby, the Option Agreement shall remain in
full force and effect.
[SIGNATURE PAGE FOLLOWS]
25
[SIGNATURE PAGE TO AMENDMENT NO.1]
IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment No. 1 to the Option Agreement, or caused this Agreement to be duly
executed on its behalf, as of the date first written above.
OPERATING PARTNERSHIP:
TOWER REALTY OPERATING
PARTNERSHIP, L.P.
By: TOWER REALTY TRUST, INC.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Chairman of the Board,
Chief Executive Officer
and President
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxx
2
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Schedule B
Not Applicable
