Agreement Bauman 34th Street, LLC and Goldberg 34th Street, LLC Seller and 504-514 West 34th Street Corp. Buyer Property 516 West 34th Street New York, NY 10001 Date: July __, 2008
Agreement
Xxxxxx
34th
Street,
LLC
and
Xxxxxxxx
34th
Street,
LLC
Seller
and
000-000
Xxxx 00xx
Xxxxxx
Xxxx.
Buyer
_________________________________________________
Property
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000
_________________________________________________
Date:
July __, 2008
Table
of Contents
Page
|
1.
|
Basic
Terms and Definitions
|
1
|
|
2.
|
The
Property
|
2
|
|
3.
|
Purchase
Price
|
2
|
|
4.
|
Apportionments;
Miscellaneous Payments
|
2
|
|
5.
|
Title
|
4
|
|
6.
|
Closing;
Consent of Lender
|
6
|
|
7.
|
Closing
Deliveries
|
7
|
|
8.
|
Representations
|
8
|
|
9.
|
Condition
of the Property
|
10
|
|
10.
|
Risk
of Loss
|
11
|
|
11.
|
Default
|
12
|
|
12.
|
Assignment
|
12
|
|
13.
|
Broker
|
12
|
|
14.
|
Notices
|
13
|
|
15.
|
Escrow
|
13
|
|
16.
|
Miscellaneous
|
15
|
Exhibit
A
- Land
Exhibit
B
- Leases
Exhibit
C
- Permitted Encumbrances
Exhibit
D
- Service Contracts
Exhibit
E
- Employees
Exhibit
F
- Loan Documents
Exhibit
G
- Tenancy-in-Common Agreement
Exhibit
H
- Net Lease Agreement
Exhibit
I
- Letter
Agreement
1. Basic
Terms and Definitions
1.1 Date
of this Agreement.
July
__, 2008
1.2 Seller.
Xxxxxx
34th
Street,
LLC (“Xxxxxx Seller”) and Xxxxxxxx 34th
Street,
LLC (“Xxxxxxxx Seller”), both Delaware limited liability companies
1.3 Buyer.
000-000
Xxxx 00xx
Xxxxxx
Corp., a Maryland corporation
1.4 Land.
The
land described on Exhibit
A
to this
Agreement
1.5 Purchase
Price.
$128,000,000.00
1.6 Deposit.
$12,800,000.00, plus interest, if any
1.7 Escrow
Agent.
Goulston & Storrs, P.C.
1.8 Closing
Date.
The
date which is seven business days following the date Seller obtains the consent
of the holder of the Loan Documents (“Lender”), subject to Subsection
6.1.2.
1.9 Closing
Location.
Goulston & Storrs, P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000.
1.10 Broker.
None
1.11 Notice
Addresses and Tax Identification Numbers.
(a) Seller.
Xxxxxx
34th
Street,
LLC, c/o Xxxxxxxx Xxxxxx, The Xxxxxx Foundation, Xxxxxx House, 0000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000-0000; Tax ID No. 00-0000000, with a copy to
Goulston & Storrs, P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, attention:
Xxxxxxxx X. Xxxxx, Esq.; and Xxxxxxxx 34th
Street,
LLC, c/o Xxxx Xxxxxx, 0000 Xxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000 and 000 Xxxxxx
Xxxx, Xxx Xxxx Xxxx, XX 00000; Tax ID No. 00-0000000, with a copy to Xxxxxxxx
Xxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, attention: Xxxxxx X. Xxxxxx,
Esq.
(b) Buyer.
000-000
Xxxx 00xx
Xxxxxx
Corp., c/o Coach, Inc., 000 Xxxx 00xx
Xxxxxx,
Xxx Xxxx, XX 00000, attention: General Counsel; Tax ID No. 00-0000000, with
a
copy to Xxxxxxxx Xxxxx, LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, attention:
Xxxxxxx X. Crystal, Esq.
(c) Escrow
Agent.
Goulston & Storrs, P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, attention:
Xxxxxxxx X. Xxxxx, Esq.
1.12 Certain
Defined Terms.
(a) Leases.
The
occupancy agreements described on Exhibit
B
to this
Agreement.
(b) Permitted
Encumbrances.
The
matters described on Exhibit
C
to this
Agreement.
(c) Service
Contracts.
The
contracts described on Exhibit
D
to this
Agreement.
(d) Employees.
The
employees listed on Exhibit
E
to this
Agreement.
(e) Loan
Documents.
The
documents listed on Exhibit
F
to this
Agreement.
1.13 Other
Defined Terms.
(a) Closing.
Section
6.1
(b) Equipment.
Section
2.1
(c) Improvements.
Section
2.1
(d) Property.
Section
2.1
(e) Rents.
Section
4.1
(f) Survival
Period.
Section
8.3
2. The
Property.
2.1 The
Property.
Seller
shall sell to Buyer, and Buyer shall purchase from Seller, the Land and the
buildings and improvements on the Land (collectively, the “Improvements”; the
Land and the Improvements, collectively, the “Property”), together with all of
Seller’s right, title and interest, if any, in and to (a) any land lying in the
bed of any street, opened or proposed, adjoining the Land, to the center line
thereof, (b) any unpaid condemnation award with respect to the Land or the
Improvements by reason of the change of grade of any street, (c) any strips
and
gores adjoining the Land, (d) any rights relating to the Land or the
Improvements, (e) the Leases, (f) the Service Contracts, (g) all fixtures,
equipment and personal property used in connection with the Land or the
Improvements (the “Equipment”), and (h) all intangible property used in
connection with the Land or the Improvements.
3. Purchase
Price.
3.1 Payment.
The
Purchase Price for the Property shall be paid by Buyer to Seller as follows:
(a)
the Deposit shall be paid on the execution and delivery of this Agreement by
Buyer, by certified check of Buyer or official bank check drawn on or by a
bank
which is a member of the New York Clearing House Association, L.L.C. to the
order of Escrow Agent, or, at Seller’s option, by a wire transfer to the account
of Escrow Agent, the receipt of which is hereby acknowledged, to be held in
escrow by Escrow Agent in accordance with this Agreement; (b) $92,200,000.00
shall be paid at the Closing, by one or more certified checks of Buyer or
official bank checks drawn on or by a bank which is a member of the New York
Clearing House Association, L.L.C., or by wire transfers, to payees, as
requested by Seller at least one day prior to the Closing Date; and (c)
$23,000,000.00 shall be paid by Buyer accepting title to the Property subject
to
the Loan Documents, provided, however, that if Seller shall prepay any portion
of the principal of the Loan Documents at or prior to the Closing, an amount
equal to the amount of principal prepaid shall be added to the amount payable
pursuant to clause (b) of this Section.
-2-
4. Apportionments;
Miscellaneous Payments.
4.1 Income
and Expenses.
All
income and expenses applicable to the Property shall be apportioned between
Seller and Buyer as of the Closing Date, including the following items:
4.1.1 Rents.
Rent,
additional rent and all other charges under the Leases (“Rents”), as and when
collected, subject to the provisions of this Article.
(a) Delinquent
Rents.
At the
Closing, Seller shall deliver to Buyer a list of all tenants under the Leases
who are delinquent in the payment of Rents, the amount of each delinquency,
and
the period to which each delinquency is attributable. Any Rents collected by
Buyer after the Closing from any delinquent tenant, net of reasonable
out-of-pocket expenses incurred by Buyer to collect such Rents, shall be applied
in the following order of priority: first, to delinquent Rents for the month
in
which the Closing occurs; second, to delinquent Rents for the month prior to
the
month in which the Closing occurs; third, to then current Rents due from such
tenant; and last, to delinquent Rents for all other months prior to the month
in
which the Closing occurs. Buyer shall, at Seller’s request, submit to delinquent
tenants invoices for Rents to which Seller is entitled. If any such Rents are
collected by Buyer, Buyer shall promptly pay to Seller the portion to which
Seller is entitled. Seller shall have the right, subsequent to the Closing,
to
collect any such Rents not collected by Buyer directly from the tenants, and
to
commence an action against the tenants for such collection, but any such action
shall not include an eviction of any such tenants. Buyer shall reasonably
cooperate with Seller in connection with Seller’s efforts to collect any such
Rents not collected by Buyer.
(b) Unbilled
Rents.
At the
Closing, Seller shall deliver to Buyer a list of all Rents payable under the
Leases which are either billed but not due, or are unbilled, as of the Closing
Date. To the extent such Rents are unbilled, the list shall contain only a
description of the nature of the unbilled Rents since the actual amounts may
not
be known until after the Closing. To the extent Seller shall have received
any
sums on account of any such Rents, such sums shall be set forth on the list
and
Seller shall be entitled to retain the same as a payment on account of such
Rents due to Seller. Upon the determination by Buyer (with the reasonable
approval of Seller) of the amounts of such Rents, bills therefor shall be
delivered to the tenants. The first amounts collected by Buyer in respect of
such Rents shall be deemed to be in payment of the amounts remaining due and
payable to Seller. If any such Rents are collected by Buyer, Buyer shall
promptly pay to Seller the portion to which Seller is entitled. Seller shall
have the right, subsequent to the Closing, to collect any such Rents not
collected by Buyer directly from the tenants, and to commence an action against
the tenants for such collection, but any such action shall not include an
eviction of any such tenants. Buyer shall reasonably cooperate with Seller
in
connection with Seller’s efforts to collect any such Rents not collected by
Buyer.
-3-
4.1.2 Real
Estate Taxes.
Real
estate taxes on the basis of the fiscal year for which assessed. If the Closing
shall occur before the tax rate is fixed, the apportionment of real estate
taxes
shall be on the basis of the tax rate for the immediately preceding fiscal
year
applied to the latest assessed valuation, subject to final adjustment when
the
tax rate is fixed for the fiscal year in which the Closing occurs. Seller shall
have the right to prosecute subsequent to the Closing any pending tax certiorari
proceedings for the fiscal year in which the Closing occurs and all prior fiscal
years. Any refunds obtained for any fiscal years prior to the fiscal year in
which the Closing occurs, shall be paid to Seller. Any refund obtained for
the
tax year in which the Closing occurs, net of the reasonable expenses incurred
in
obtaining such refund, shall be paid to Buyer to the extent of the amount
thereof which is payable to the tenants under the Leases, and the balance
thereof, if any, shall be apportioned between Seller and Buyer. Seller shall
request from the attorney representing Seller, and if received, shall deliver
to
Buyer at the Closing, a letter outlining the status of any pending tax
certiorari proceedings, but the failure to obtain that letter shall not be
a
condition to the Closing, a default by Seller or entitle Buyer to any remedies,
and this Agreement shall remain in full force and effect according to its
terms.
4.1.3 Water
and Sewer.
Water
and sewer charges and rents on the basis of the fiscal year for which assessed.
If there are water or gas meters, Seller shall furnish readings to a date not
more than 30 days prior to the Closing Date, and the unfixed meter charges
and
the unfixed sewer rents, if any, based thereon for the intervening period shall
be apportioned on the basis of such last reading. If, however, the meters are
read on the Closing Date, the billing is switched to Buyer as of the Closing
Date, or any such charges or rents are payable by any tenant under a Lease,
such
charges or rents shall not be apportioned.
4.1.4 Service
Contracts.
All
charges, advance payments and deposits under the Service Contracts.
4.1.5 Fuel.
Fuel
(including sales tax) based on a reading obtained by Seller and the last price
paid by Seller for fuel.
4.1.6 Employees.
Salaries, wages, payroll costs and taxes, vacation pay, union benefits and
other
fringe benefits, including, without limitation, welfare and pension
contributions, with respect to the Employees.
4.1.7 Leasing
Commissions.
All
leasing commissions and any installment thereof on account of Leases made after
the date of this Agreement, whether or not the same are due and payable prior
to, on or after the Closing Date shall be paid by Buyer at such time as they
are
due and payable. If prior to the Closing Seller shall pay any leasing commission
or any installment thereof which is the obligation of Buyer, Buyer shall
reimburse Seller at the Closing.
4.1.8 Interest
on Loan Documents.
Interest on the Loan Documents.
4.2 Miscellaneous
Payments.
4.2.1 In
addition to any other payments under this Agreement, at the Closing, an amount
equal to all reserves, escrows and other cash applicable to the Property held
by
Lender shall be paid by Buyer to Seller, as evidenced by a statement of Lender
or, if Lender shall refuse to give such statement, then by a statement of the
managing agent for the Property, in the same manner as the balance of the cash
portion of the purchase price is paid by Buyer to Seller. Any reserves, escrows
or other cash applicable to the Property and not held by the Lender shall be
distributed to Seller at or prior to the Closing.
-4-
4.2.2 At
the
Closing, Buyer shall arrange for Coach, Inc. to pay all rents due under the
lease held by Coach, Inc. of a portion of the Property to the Closing Date,
to
be apportioned pursuant to this Article.
4.3 Customs.
Except
as otherwise provided in this Agreement, the apportionments shall be made as
of
the date immediately preceding the Closing Date and otherwise in accordance
with
the customs in respect to title closings recommended by the Real Estate Board
of
New York, Inc.
4.4 Errors.
Any
errors in calculating the apportionments shall be corrected as soon as
practicable following the Closing.
4.5 Survival.
The
provisions of this Article shall survive the Closing.
5. Title.
5.1 Permitted
Encumbrances.
The
Property shall be conveyed subject to the Permitted Encumbrances.
5.2 Title
Report.
Buyer
shall, promptly after it executes this Agreement, order and deliver to Seller
a
title search of the Land and Improvements, together with notice of any
objections which Buyer may have with respect to title which are not Permitted
Encumbrances or which Seller is not required to remove pursuant to any provision
of this Agreement. Seller shall be entitled to reasonable adjournments of the
Closing (not to exceed 180 days) in order to remedy any such objections. Buyer
shall be responsible for all charges and premiums in connection with its title
search, title insurance policy and survey, if any.
5.3 Inability
to Convey.
Notwithstanding any provision of this Agreement to the contrary, if Seller
is
unable to convey the Property in accordance with this Agreement, the sole
obligation and liability of Seller shall be to permit Escrow Agent to pay to
Buyer the Deposit, and for Seller to pay to Buyer the cost paid by Buyer for
Buyer’s title search and survey, if any, whereupon this Agreement shall be
deemed terminated and Seller and Buyer shall be released of all obligations
and
liabilities under this Agreement, except those that are stated to survive the
termination of this Agreement. Buyer shall have no further rights of action
against Seller, in law or in equity, for damages or specific performance. Buyer
shall have the right, however, to accept such title as Seller can convey, in
which event Seller shall make the deliveries provided in this Agreement to
Buyer, to the extent Seller is able to do, and there shall be no reduction
of
the Purchase Price. Seller shall not be required to take any action, to
institute any proceedings or to incur any expense in order to remedy any
objections to title. If Seller shall elect not to take any action, institute
any
proceeding or incur any expense to remedy any objection to title, Seller shall
be deemed unable to convey the Property in accordance with the terms of this
Agreement, provided, however, Seller (or, if caused by only one Seller, the
responsible Seller) shall be required to remove of record the following liens
(unless any of such liens are Permitted Encumbrances or Seller is not required
to remove any such liens pursuant to any express provision of this Agreement):
(a) any mortgage on the Land or the Improvements other than the mortgages which
are part of the Loan Documents; and (b) any lien voluntarily created by Seller
after the date of this Agreement. The acceptance of the deed to the Land and
the
Improvements by Buyer shall be deemed full performance by Seller of all of
Seller’s obligations under this Agreement, except those, if any, which are
specifically stated in this Agreement to survive the Closing. Unless otherwise
stated on this Agreement, no obligations, liabilities, representations or
warranties of Seller shall survive the Closing.
-5-
5.4 Violations.
Notwithstanding any provision of this Agreement to the contrary, Seller shall
not be obligated to comply with, or take any action or incur any expense in
connection with, any violations of law, now or hereafter existing, and Buyer
shall accept title to the Property subject to any such violations.
5.5 Emergency
Repairs.
Any
obligations affecting the Property incurred under the Emergency Repairs
provisions of the Administrative Code of the City of New York (Sections
564-18.0, etc.) prior to the Closing shall be paid by Seller.
5.6 Assessments.
If, on
the Closing Date, the Land or the Improvements are affected by any assessments
by any government authority (a) Buyer shall accept title to the Property subject
to any such assessments or installments thereof payable on or after the Closing
Date and (b) any such assessments or installments thereof payable prior to
the
Closing Date shall be apportioned pursuant to Article 4.
5.7 Removal
of Liens and Encumbrances.
If on
the Closing Date there are any liens or encumbrances which Seller is obligated
or elects to remove of record, same shall be deemed removed of record if Buyer’s
title insurance company agrees, without additional premium, to insure (a) Buyer
without exception for such liens and encumbrances or that same shall not be
enforced against the Property and (b) Buyer’s lender, if any, without exception
for such liens and encumbrances.
5.8 Survival.
The
provisions of this Article shall survive the Closing.
6. Closing;
Consent of Lender.
6.1 Closing.
6.1.1 The
closing of the transactions contemplated by this Agreement (the “Closing”) shall
take place at the Closing Location, at 10:00 A.M. on the Closing Date (time
being of the essence with respect to Buyer’s and Seller’s obligation to close on
the date which is seven business days following that date), subject to any
adjournments permitted under this Agreement. If the Closing shall not occur
on
the Closing Date, then for the purposes of this Agreement, the date on which
the
Closing occurs shall be deemed the Closing Date.
6.1.2 Buyer
acknowledges that each Seller owns a 50% interest in the Property as a
tenant-in-common. Accordingly, notwithstanding any provision of this Agreement
to the contrary, Seller and Buyer agree as provided in this
Subsection.
-6-
(a) All
payments by Buyer to Seller under this Agreement shall be made 50% to Xxxxxx
Seller and 50% to Xxxxxxxx Seller, subject to this Subsection.
(b) All
payments by Seller under this Agreement shall be made 50% by Xxxxxx Seller
and
50% by Xxxxxxxx Seller, subject to this Subsection (except as expressly provided
in this Agreement). Notwithstanding the foregoing, the liability of Seller
under
this Agreement shall be several, not joint and several, so that if only one
Seller shall default under this Agreement only that Seller shall be liable
for
that default.
(c) If
Xxxxxxxx Seller desires to effectuate a tax-free exchange of its interest,
Xxxxxxxx Seller shall have the right from time to time to adjourn the Closing
of
its interest (but not the Xxxxxx Seller interest) to a date not later than
the
730th
day
following the date of the First Closing (as defined in paragraph (d) of this
Subsection), provided that (i) Xxxxxxxx Seller shall give Buyer notice of the
adjournment not less than five business days prior to the then scheduled Closing
Date and (ii) the adjourned Closing Date shall be not less than 30 days
following the then scheduled Closing Date. If Xxxxxxxx Seller shall adjourn
the
Closing of its interest, and thereafter request a Closing prior to the scheduled
Closing Date, Buyer shall reasonably cooperate with Xxxxxxxx Seller to
accommodate a reasonable acceleration of the Closing.
(d) If
Xxxxxxxx Seller shall adjourn the Closing of its interest, the Closing of the
Xxxxxx Seller interest (the “First Closing”) shall occur on the originally
scheduled Closing Date and the Closing of the Xxxxxxxx Seller interest shall
occur on the adjourned Closing Date (subject to further adjournments as provided
in this Subsection), in accordance with this Agreement, except that the
following shall apply:
(i) The
Purchase Price payable to each Seller shall be $64,000,000, the Deposit
applicable to each Seller shall be $6,400,000 plus the interest thereon, if
any,
and the principal of the Loan Documents applicable to (and deducted from the
Purchase Price of) each Seller shall be $11,500,000.
(ii) At
the
First Closing, the Deposit applicable to Xxxxxxxx Seller shall be delivered
by
Escrow Agent named in this Agreement to an Escrow Agent designated by Xxxxxxxx
Seller, which Escrow Agent shall, by accepting the Deposit applicable to the
Xxxxxxxx Seller interest, be deemed to have agreed to the escrow provisions
of
this Agreement and the original Escrow Agent shall be released from all
liabilities and obligations under this Agreement.
(iii) The
Closing of the Xxxxxxxx Seller interest shall occur at a Closing Location in
New
York City designated by Buyer’s lender or, if none, Xxxxxxxx
Seller.
(iv) At
each
Closing (A) each Seller shall convey to Buyer only its 50% tenant-in-common
interest in the Property, (B) Buyer shall pay only the Purchase Price applicable
to the interest of that Seller and (C) the apportionments and miscellaneous
payments shall be made only with respect to the 50% interest in the Property
which is conveyed; however, following the First Closing, the apportionments
and
miscellaneous payments shall be governed by the Net Lease.
-7-
(v) Following
the First Closing, all references in this Agreement to (A) Seller, shall be
deemed to refer solely to Xxxxxxxx Seller and (B) the Deposit, shall be deemed
to refer solely to the sum of $6,400,000 plus the interest thereon, if
any.
(vi) Notwithstanding
the provisions of this Agreement, if the First Closing occurs, 50% of the
interest on the Deposit through the date immediately preceding the First Closing
shall be paid to Xxxxxx Seller at the First Closing, and if the Closing of
the
Xxxxxxxx Seller interest occurs, at that closing 50% of the interest on the
Deposit through the date immediately preceding the First Closing shall be paid
to Xxxxxxxx Seller and the balance of the interest shall be paid to
Buyer.
(vii) If,
following the First Closing, the Closing of the Xxxxxxxx Seller interest fails
to occur on or before the date which is 730 days following the date of the
First
Closing solely as the result of the default of Xxxxxxxx Seller (and Buyer is
then ready, willing and able to close in accordance with this Agreement), then
in addition to all other rights or remedies of Buyer, the Purchase Price for
the
Xxxxxxxx Seller interest shall be reduced by $2,000,000.
(viii) If,
following the First Closing, the Closing of the Xxxxxxxx Seller interest fails
to occur on or before the date which is 90 days following the date of the notice
given by Xxxxxxxx Seller pursuant to the first sentence of Subsection 6.1.2(c)
solely as the result of the default of Buyer (and Xxxxxxxx Seller is then ready,
willing and able to close in accordance with this Agreement), then in addition
to all other rights or remedies of Xxxxxxxx Seller, the Purchase Price for
the
Xxxxxxxx Seller interest shall be increased by $2,000,000.
(ix) On
the
date of this Agreement, Xxxxxxxx Seller and Buyer have entered into the
Tenancy-In-Common Agreement attached to this Agreement as Exhibit G (the “TIC
Agreement”), the Net Lease Agreement attached to this Agreement as Exhibit H
(the “Net Lease”) and the letter attached to this Agreement as Exhibit I (the
“Letter”), each effective as of the date of the First Closing, subject to the
Consent (as defined in Subsection 6.2.1) and the occurrence of the First
Closing. If the First Closing shall not occur, notwithstanding any provision
of
this Agreement, the TIC Agreement, the Net Lease or the Letter to the contrary,
the TIC Agreement, the Net Lease and the Letter shall be deemed null and void
and of no force or effect. Upon the completion of the First Closing, Xxxxxxxx
Seller and Buyer shall execute and acknowledge a memorandum of this Agreement
containing the information required by law and any other information which
is
acceptable to both parties, and any other documents required to record the
memorandum. Buyer shall have the right, at its option and at its expense, to
record the memorandum. If the Closing of the Xxxxxxxx Interest shall not occur
and this Agreement is terminated, Buyer shall promptly return the original
memorandum, if not recorded or, if recorded, execute, acknowledge and record
a
cancellation of the memorandum.
(e) Buyer
shall otherwise reasonably cooperate with Xxxxxxxx Seller in connection with
the
exchange, at no cost to Buyer and without Buyer incurring any additional
obligations or liabilities.
6.2 Consent
of Lender.
-8-
6.2.1 This
Agreement is subject to and conditioned on the receipt by Seller of the consent
of Lender to the sale of the Property by Seller to Buyer, the TIC Agreement
and
the Net Lease (the “Consent”), on or before the date (the “Consent Date”) which
is 90 days following the date of this Agreement. Seller may extend the Consent
Date to the date which is 180 days following the date of this Agreement by
giving notice of the extension to Buyer on or before the date which is 15 days
prior to the original Consent Date.
6.2.2 Promptly
following the execution and delivery of this Agreement Seller shall request
the
Consent. Seller and Buyer shall (a) furnish the information, documents and
other
items required by the Loan Documents or Lender, including financial statements,
(b) execute and deliver an agreement reasonably acceptable to Seller, Buyer
and
Lender under which Buyer assumes all of Seller’s obligations and liabilities
under the Loan Documents and Seller is released from all obligations and
liabilities under the Loan Documents and (c) otherwise cooperate in good faith
with Lender to obtain the Consent. Buyer shall pay all fees, charges and
expenses of Lender as required by the Loan Documents in connection with the
Consent.
6.2.3 If
Seller
shall not receive the Consent on or before the Consent Date (as the same may be
extended pursuant to this Section), this Agreement shall automatically
terminate, Escrow Agent shall pay the Deposit to Buyer, and neither party shall
have any further obligations or liabilities under this Agreement, except those
that are expressly stated to survive the termination of this Agreement, unless
Seller, at Seller’s expense, by notice to Buyer on or before the date which is
15 days following Lender’s denial of the Consent, elects to prepay or defease
the Loan Documents (in which event Buyer shall pay a portion of any prepayment
fee or expense of defeasance up to the amount of the consent fee which otherwise
would have been payable had Lender given the Consent). If Seller shall not
elect
to prepay or defease, Buyer may elect to do so, at Buyer’s expense, by notice to
Seller on or before the 15th
day
following the end of Seller’s 10-day election period.
7. Closing
Deliveries.
7.1 Seller’s
Deliveries.
At the
Closing, Seller shall execute, acknowledge and deliver the items set forth
in
this Section.
(a) A
bargain
and sale deed, without covenant against grantor’s acts, containing the covenant
required by subdivision 5 of Section 13 of the Lien Law.
(b) All
tax
and other forms required by any Federal, state or local government authority
in
connection with the transactions contemplated by this Agreement, together with
certified or official bank checks to the order of the appropriate government
authority for any conveyance or similar tax imposed by any Federal, state or
local government authority in connection with the transactions contemplated
by
this Agreement. Buyer shall execute such forms and shall deliver the forms
and
the aforesaid checks to Buyer’s title insurance company for delivery to the
appropriate government authority promptly after the Closing.
(c) An
assignment of the Leases, the security deposits under the Leases (which shall
be
paid by Seller to Buyer at the Closing) and the Service Contracts, without
representation or warranty other than as specifically set forth in this
Agreement, containing Seller’s agreement to indemnify, defend and hold harmless
Buyer from and against all claims, actions, proceedings, losses, liabilities
and
expenses (including reasonable attorney’s fees) by reason of Seller’s failure to
perform Seller’s obligations under the Leases (other than the Lease held by
Coach, Inc. of a portion of the Property) or the Service Contracts accruing
prior to the Closing Date (provided Buyer makes a claim against Seller prior
to
the expiration of the Survival Period). Buyer shall execute the assignment
for
the purpose of assuming Seller’s obligations under the Leases and the Service
Contracts, and indemnifying, defending and holding harmless Seller from and
against all claims, actions, proceedings, losses, liabilities and expenses
(including reasonable attorneys’ fees) by reason of Buyer’s failure to perform
Buyer’s obligations under the Leases or the Service Contracts accruing on or
after the Closing Date. Notwithstanding the foregoing, any Service Contract
that
is cancellable without payment or penalty (unless paid by Buyer) shall be
cancelled by Seller effective as of the Closing Date or the earliest date
thereafter cancellation is permitted, if requested by Buyer not less than 10
days prior to the Closing Date.
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(d) A
certification that Seller is not a “foreign person” as such term is defined in
Section 1445 of the Internal Revenue Code of 1984, as amended, and the
regulations thereunder, in the form required thereby.
(e) Notices
to the tenants under the Leases signed by Seller and Buyer advising the tenants
of the conveyance to Buyer of Seller’s landlord’s interest and, where
applicable, the security deposits.
(f) A
certificate of a member of Seller certifying that : (i) Seller is authorized
to
enter into and perform this Agreement; (ii) the Certificate of Formation of
Seller has been filed in the proper office and is in full force and effect
and
(iii) the Members of Seller have consented to Seller’s entering into and
performing this Agreement.
(g) An
assignment of the Loan Documents, without representation or warranty other
than
as specifically set forth in this Agreement, assigning to Buyer all of Seller’s
right, title and interest in, to and under the Loan Documents, including all
amounts (with the interest thereon) held in escrow or in a reserve by Lender
in
respect of the Property, which shall be paid by Buyer to Seller at the Closing
in the same manner as the balance of the cash portion of the Purchase Price
is
paid by Buyer to Seller. Buyer shall execute the assignment for the purpose
of
assuming Seller’s obligations under the Loan Documents.
(h) A
statement from Lender, dated within 30 days of the Closing Date, of the unpaid
principal balance and accrued interest on the Loan Documents. Seller shall
request that such statement include a statement of the balance of any escrows
or
reserves held by Lender, but the failure of Lender to include such statement
shall not be a default under this Agreement or otherwise modify any obligation
of Buyer under this Agreement, including the obligation to pay those escrows
and
reserves to Seller at the Closing or to close the transactions contemplated
by
this Agreement in accordance with this Agreement.
(i) All
employee and maintenance records, plans, specifications, licenses and permits
relating to the Property in Seller’s possession or control.
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(j) The
letter referred to in Subsection 4.1.2, if obtained.
(k) The
estoppel letter referred to in Subsection 8.1.2., if obtained.
(l) Any
other
deliveries required to be made by Seller pursuant to this
Agreement.
7.2 Buyer’s
Deliveries.
At the
Closing, Buyer shall execute, acknowledge and deliver all documents, and make
all of the other deliveries, required of Buyer pursuant to this Agreement,
including payment of the balance of the Purchase Price and all other
payments.
7.3 Survival.
The
provisions of this Article shall survive the Closing.
8. Representations.
8.1 Seller’s
Representations.
Each
Seller represents to Buyer for itself as set forth in this Section.
8.1.1 Authorization.
(a) Seller
(i) is duly organized, validly existing and in good standing under the law
of
the State of its formation and (ii) has the power to perform Seller’s
obligations under this Agreement.
(b) This
Agreement is a valid and binding obligation of Seller, enforceable against
Seller in accordance with its terms, subject to bankruptcy, reorganization
and
other similar laws affecting the enforcement of creditors’ rights
generally.
(c) The
execution, delivery and performance of this Agreement in accordance with its
terms (i) does not violate the constitutive documents of Seller, or any
agreement, order, judgment or decree binding on Seller and (ii) have been duly
authorized by all necessary action by Seller.
8.1.2 Leases.
A list
of all of the Leases (but not subleases entered into by any tenants under the
Leases) affecting the Land or the Improvements on the date of this Agreement
is
attached to this Agreement as Exhibit
C,
complete copies of which have been made available to Buyer for Buyer’s review.
To the actual knowledge of Seller, on the date of this Agreement (i) the Leases
are in good standing and in full force and effect in accordance with their
respective terms, (ii) except as set forth on Exhibit
C,
the
Leases have not been amended and (iii) except as set forth on Exhibit
C,
there
has been no written claim of default under any of the Leases on the part of
any
party thereto which remains uncured on the date of this Agreement. Seller’s
representations under this Subsection shall not be deemed made with respect
to
the Lease held by Coach, Inc. of a portion of the Property. Seller shall not,
without Buyer’s consent, voluntarily terminate or modify any of the Leases or
enter into any new Leases. Notwithstanding the foregoing, if prior to the
Closing Date any tenant under a Lease shall default under its Lease or any
Lease
is terminated (other than pursuant to a voluntarily termination by Seller),
Buyer’s obligation to accept title to the Property and to pay the full Purchase
Price shall not be affected, and this Agreement shall remain in full force
and
effect. Nothing contained in this Agreement shall prevent Seller from commencing
any action, including a summary dispossesses proceeding or non-payment
proceeding, against any tenant that is in default under its Lease, or from
applying any security deposit held by Seller. On the date of this Agreement,
there are no leasing commissions due with respect to the Leases. Seller shall
request from Forest Electric Corp., and if received deliver to Buyer at the
Closing, an estoppel letter in accordance with the Lease with Forest Electric
Corp. If Forest Electric Corp. fails to deliver same, Seller shall not be in
default under this Agreement and this Agreement shall remain in full force
and
effect in accordance with its terms and, notwithstanding the provisions of
Section 8.3 Sellers’ representations in this Subsection with respect to that
Lease shall survive the Closing without time limit.
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8.1.3 Service
Contracts.
A list
of all of the Service Contracts which affect the Property on the date of this
Agreement is attached to this Agreement as Exhibit
D,
complete copies of which have been made available to Buyer for Buyer’s review.
To the actual knowledge of Seller, on the date of this Agreement (i) the Service
Contracts are in good standing and in full force and effect in accordance with
their respective terms, (ii) except as set forth in Exhibit
D,
the
Service Contracts have not been amended, and (iii) except as set forth in
Exhibit
D,
there
has been no written claim of default under any of the Service Contracts by
any
party thereto which remains uncured on the date of this Agreement. Seller shall
not, without Buyer’s consent, enter into any Service Contract after the date of
this Agreement unless it can be terminated on not more than 30 days’ notice,
without penalty.
8.1.4 Employees.
A list
of all of the Employees of the Property on the date of this Agreement who shall
remain Employees of the Property following the Closing and who shall be the
responsibility of Buyer, and their salaries and any applicable collective
bargaining or other agreements is attached to this Agreement as Exhibit
E.
On and
after the Closing Date (i) Buyer shall be deemed to have assumed and to be
responsible for all employment and employee benefit-related matters, obligations
and liabilities that are payable on or after the Closing Date, regardless of
whether such liabilities arise before, on or after the Closing Date, with
respect to all of the Employees, (ii) Seller shall have no responsibilities,
liabilities or obligations with respect to the Employees, and (iii) Buyer shall
be deemed to have assumed the collective bargaining agreements and other
employment agreements set forth on Exhibit
E,
and all
liabilities and obligations under those agreements, the National Labor Relations
Act, the Labor Management Relations Act and all other laws and regulations
applicable to the Employees, and Seller shall have no obligation or liability
in
connection with same. Buyer shall indemnify, defend and hold harmless Seller
from and against all claims, actions, proceedings, losses, liabilities and
expenses (including reasonable attorneys fees) by reason of Buyer’s failure to
perform Buyer’s obligations set forth in this Subsection. Seller shall
indemnify, defend and hold harmless Buyer from and against all claims, actions,
proceedings, losses, liabilities and expenses (including reasonable attorney’s
fees) by reason of any claim by an Employee of the Property arising prior to
the
Closing.
8.1.5 Actions.
To the
actual knowledge of Seller, there is no litigation, arbitration or other action,
proceeding or governmental investigation pending or threatened relating to
the
Property on the date of this Agreement, other than litigations, actions or
proceedings covered by insurance, the proposed regrading of Xxxx 00xx
Xxxxxx
and the action against Buyer by Xxxxxxx Inc. for a commission in connection
with
Buyer’s Lease.
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8.1.6 The
Loan Documents.
A list
of the Loan Documents is attached to this Agreement as Exhibit
F,
complete copies of which have been made available to Buyer for Buyer’s review.
The unpaid principal balance of the Loan Documents on the date of this Agreement
is $23,000,000. On the date of this Agreement, to the actual knowledge of Seller
(a) the Loan Documents are in full force and effect in accordance with their
terms, (b) Seller is not in default under the Loan Documents and (c) there
has
been no written claim of default under the Loan Document by any party thereto
which remains uncured. Seller shall (i) cause the Loan Documents to be complied
with until the Closing, including the payment of all interest due and payable
prior to Closing, and (ii) not amend the Loan Documents or prepay the principal
of the Loan Documents.
8.1.7 Patriot
Act.
(a) Seller
is
in compliance with the requirements of Executive Order No. 133224, 66 Fed.
Reg.
49079 (Sept. 25, 2001) (the “Order”)
and
other similar requirements contained in the rules and regulations of the Office
of Foreign Assets Control, Department of the Treasury (“OFAC”)
and in
any enabling legislation or other Executive Orders or regulations in respect
thereof (the Order and such other rules, regulations, legislation, or orders
are
collectively called the “Orders”).
(b) Neither
Seller nor any beneficial owner of Seller:
(i) is
listed
on the Specially Designated Nationals and Blocked Persons List maintained by
OFAC pursuant to the Order or on any other list of terrorists or terrorist
organizations maintained pursuant to any of the rules and regulations of OFAC
or
pursuant to any other applicable Orders (such lists are collectively referred
to
as the “Lists”);
(ii) is
a
person or entity who has been determined by competent authority to be subject
to
the prohibitions contained in the Orders; and
(iii) is
owned
or controlled by, or acts for or on behalf of, any person or entity on the
Lists
or any other person or entity who has been determined by competent authority
to
be subject to the prohibitions contained in the Orders.
(c) If
Seller
obtains knowledge that Seller or any of its beneficial owners becomes listed
on
the Lists or is indicted, arraigned, or custodially detained on charges
involving money laundering or predicate crimes to money laundering, Seller
shall
immediately notify Buyer in writing, and in such event, Buyer shall have the
right to terminate this Agreement without penalty or liability to Seller
immediately upon delivery of written notice thereof to Seller.
8.2 Buyer’s
Representations.
Buyer
represents and warrants to Seller as set forth in this Section.
8.2.1 Authorization.
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(a) Buyer
(i)
is a duly organized, validly existing and in good standing under the law of
the
State of its formation and (ii) has the power to make and perform Buyer’s
obligations under this Agreement.
(b) This
Agreement is a valid and binding obligation of Buyer, enforceable against Buyer
in accordance with its terms, subject to laws affecting the enforcement of
creditors’ rights generally.
(c) The
execution, delivery and performance of this Agreement in accordance with its
terms (i) does not violate the constitutive documents of Buyer, or any contract,
agreement, commitment, order, judgment or decree to which binding on Buyer
and
(ii) have been duly authorized by all necessary action by Buyer.
8.2.2 Patriot
Act.
(a) Buyer
is
in compliance with the requirements of Executive Order No. 133224, 66 Fed.
Reg.
49079 (Sept. 25, 2001) (the “Order”)
and
other similar requirements contained in the rules and regulations of the Office
of Foreign Assets Control, Department of the Treasury (“OFAC”)
and in
any enabling legislation or other Executive Orders or regulations in respect
thereof (the Order and such other rules, regulations, legislation, or orders
are
collectively called the “Orders”).
(b) Buyer:
(i) is
not
listed on the Specially Designated Nationals and Blocked Persons List maintained
by OFAC pursuant to the Order and/or on any other list of terrorists
organizations maintained pursuant to any of the rules and regulations of OFAC
or
pursuant to any other applicable Orders (such lists are collectively referred
to
as the “Lists”);
(ii) is
not a
person or entity who has been determined by competent authority to be subject
to
the prohibitions contained in the Orders; and
(iii) is
not
owned or controlled by, or acts for or on behalf of, any person or entity on
the
Lists or any other person or entity who has been determined by competent
authority to be subject to the prohibitions contained in the
Orders.
(c) Buyer
hereby covenants and agrees that if Buyer obtains knowledge that Buyer or any
of
its controlling beneficial owners becomes listed on the Lists, Buyer shall
immediately notify Seller in writing, and in such event, Seller shall have
the
right to terminate this Agreement without penalty or liability to Buyer
immediately upon delivery of written notice thereof to Buyer.
8.3 Survival.
The
representations in this Agreement shall survive the Closing, but Seller’s
representations shall survive the Closing only for a period of 180 days
following the Closing (the “Survival Period”), and any action brought thereon
must be commenced by Buyer within the Survival Period.
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9. Condition
of the Property.
9.1 AS
IS.
Buyer
represents that Buyer (a) has inspected all aspects of the Property, including
the environmental condition, to Buyer’s satisfaction, (b) has received and
reviewed the Leases, the Service Contracts, the certificate of occupancy for
the
Improvements, and all other documents referred to in this Agreement, (c) shall
accept the Property “AS IS” and in their present condition, subject to
reasonable use, wear, tear and natural deterioration between the date of this
Agreement and the Closing Date and (d) except as set forth in this Agreement,
neither Seller nor any agent or representative of Seller has made, and Seller
is
not liable for or bound by, any express or implied warranties, guaranties,
promises, statements, inducements, representations or information pertaining
to
the Leases, the Service Contracts, the certificate of occupancy for the
Improvements, any other documents referred to in this Agreement, the Property,
including the environmental condition, or any other matter.
9.2 Maintenance.
Between
the date of this Agreement and the Closing Date, Seller shall, subject to the
provisions of this Agreement, cause the Property to be maintained in the
ordinary course (but shall not be required to make extraordinary repairs or
replacements resulting from fire or other casualty or otherwise, or any repairs
and replacements of the roof or mechanical systems of the
Improvements).
9.3 Inspection.
At all
times during normal business hours prior to the Closing, Buyer and its
contractors, upon reasonable prior notice to Seller, and accompanied by Seller’s
representative, shall have the right to make visual, noninvasive inspections
of
the Property, subject to the terms of the Leases.
9.4 Environmental
Claims.
Seller
shall have no obligation or liability to Buyer in connection with any
environmental matter affecting the Property, and Buyer hereby releases Seller
and Seller’s affiliates, agents, contractors, officers, directors and employees
from any claim relating thereto, including any claims for personal injury,
real
or personal property damage, or otherwise, and any damages, penalties, fines,
liabilities, costs and fees in connection therewith, except with respect to
a
claim made against Buyer by a party unrelated to Buyer relating to an
environmental condition which existed prior to the Closing Date for which Seller
may be liable.
9.5 Survival.
The
provisions of this Article shall survive the Closing.
10. Risk
of Loss.
10.1 Risk
of Loss.
If
prior to the First Closing any material portion of the Land or the Improvements
shall be taken or damaged or destroyed by fire or other casualty, Buyer shall
have the right to terminate this Agreement by giving notice to Seller on or
before the date which is 15 days following Buyer’s receipt of notice of the
taking or fire or other casualty (time being of the essence). If Buyer shall
give that notice, Escrow Agent shall pay the Deposit to Buyer, this Agreement
shall be deemed terminated and Seller and Buyer shall have no further
obligations and liabilities under this Agreement, except those that are stated
to survive the termination of this Agreement. If an immaterial portion of the
Land or the Improvements shall be taken or damaged or destroyed by fire or
other
casualty, or if there is a material taking or fire or other casualty and Buyer
shall not terminate this Agreement, Buyer shall purchase the Property in
accordance with this Agreement and the Purchase Price shall not be reduced,
but
Seller’s rights to (a) any award resulting from such taking, or (b) any
insurance proceeds resulting from such fire or other casualty (less any sums
expended by Seller for repair and restoration), shall be assigned by Seller
to
Buyer (or, to the extent received by Seller, paid to Buyer) at the Closing,
and
any deductible under Seller’s fire or other casualty insurance shall be paid by
Seller to Buyer at the Closing (or offset against the Purchase Price). A
“material portion of the Land or the Improvements” (i) shall be deemed taken, if
the portion taken equals or exceeds the aggregate of (x) 10 percent of the
Land
or the Improvements plus (y) any portion taken as the result of the proposed
regrading of West 33rd
Street,
and (ii) shall be deemed damaged or destroyed by fire or other casualty, if
as a
result thereof, Coach, Inc. has the right to, and shall, terminate its entire
Lease of a portion of the Property. The provisions of Section 5-1311 of the
General Obligations Law of the State of New York shall not apply to this
Agreement.
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11. Default.
11.1 Buyer’s
Default.
If
Buyer shall default under this Agreement Seller’s only remedies (except as
otherwise expressly provided in this Agreement) shall be to (a) seek specific
performance of Buyer’s obligations under this Agreement or (b) terminate this
Agreement and have Escrow Agent pay the Deposit to Seller as liquidated damages.
In addition, a default by Buyer under this Agreement shall be deemed a default
under Buyer’s Lease of a portion of the Property and a default by Buyer under
Buyer’s Lease of a portion of the Property shall be deemed a default under this
Agreement.
11.2 Seller’s
Default.
If
Seller shall default under this Agreement Buyer’s only remedies (except as
otherwise expressly provided in this Agreement) shall be to (a) seek specific
performance of Seller’s obligations under this Agreement or (b) terminate this
Agreement and have Escrow Agent pay the Deposit (subject to Subsection
6.1.2(d)(v))
to
Buyer, but in no event shall Buyer seek, or shall Seller be liable for, any
damages in connection with Seller’s default.
11.3 Survival.
The
provisions of this Article shall survive the Closing.
12. Assignment.
12.1 Assignment.
Buyer
shall not assign Buyer’s interest under this Agreement without the consent of
Seller, and any purported assignment without Seller’s consent shall be void and
of no force and effect, except that Buyer may, without Seller’s consent assign
Buyer’s interest under this Agreement to any entity (an “Affiliate”) which,
directly or indirectly, is controlled by, controls, or under common control
with, Buyer, provided that (a) Buyer gives Seller notice of the assignment
not
less than five business days prior to the Closing Date, accompanied by (i)
an
original assignment signed by Buyer and the assignee, providing for assignee’s
assumption of all of Buyer’s obligations and liabilities under this Agreement
and (ii) evidence reasonably acceptable to Seller of such control and (b) Buyer
shall not be released from any obligations or liabilities under this Agreement.
Notwithstanding the foregoing, Buyer shall, if required by Lender, assign this
Agreement in accordance with this Article to an Affiliate which complies with
the Loan Documents, including the Single Purpose Entity and ERISA provisions,
which Affiliate shall be the buyer of the Property.
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13. Broker.
13.1 Broker.
Buyer
and Seller each represent to the other that they dealt with no broker in
connection with this transaction and that each shall pay its own consultants..
Seller and Buyer shall each indemnify, defend and hold harmless the other from
and against any claim by any broker or other person for a commission or other
compensation in connection with this transaction if such claim is based in
whole
or in part upon any act of the indemnifying party or its representatives, and
from all losses, liabilities, costs and expenses in connection with such claim,
including, reasonable attorneys’ fees.
13.2 Survival.
The
provisions of this Article shall survive the Closing or the termination of
this
Agreement.
14. Notices.
14.1 Notices.
All
notices or other communications under this Agreement must be in writing and
shall be deemed to have been properly given if delivered by (a) messenger (b)
registered or certified mail, postage prepaid, return receipt requested, (c)
reputable overnight delivery service, or (d) telecopy, to the Notice Addresses.
Any party may, by notice given in accordance with this Section, designate a
different address or person for notices or other communications.
14.2 Effectiveness.
Notices
and other communications shall be deemed given on the date the same is received
as evidenced by a receipt or an acknowledgment of receipt (and the failure
of a
party to accept a notice or other communication shall be deemed
receipt).
15. Escrow.
15.1 Deposit.
Simultaneously with the execution and delivery of this Agreement, Buyer has
delivered the Deposit to Escrow Agent (to be deposited in a money market
account) and held in escrow by Escrow Agent on the terms set forth in this
Article.
15.2 Payment.
Escrow
Agent shall pay the Deposit to Seller or to Buyer, as the case may be, as set
forth in this Section (subject to Section
6.1.2(d)(ii)).
(a) To
Seller, at the Closing.
(b) To
Seller, upon receipt of a demand therefor signed by Seller, stating that Buyer
has defaulted under this Agreement, Seller has terminated this Agreement on
account of the default of Buyer and Seller is entitled under this Agreement
to
the Deposit; provided, however, that Escrow Agent shall provide to Buyer a
copy
of such demand, and if within 10-days following Buyer’s receipt of such copy
Escrow Agent receives notice of objection from Buyer, Escrow Agent shall not
honor the demand.
(c) To
Buyer,
upon receipt of a demand therefor signed by Buyer, stating that (i) this
Agreement has been terminated and that Buyer is entitled under this Agreement
to
the Deposit, or (ii) Seller has defaulted under this Agreement, Buyer has
terminated this Agreement on account of the default and Buyer is entitled under
this Agreement to the Deposit; provided, however, that Escrow Agent shall
provide to Seller a copy of such demand, and if within 10-days following
Seller’s receipt of such copy Escrow Agent receives notice of objection from
Seller, Escrow Agent shall not honor the demand.
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(d) Upon
receipt of a demand for the Deposit from Seller or Buyer pursuant to this
Section, Escrow Agent shall promptly provide a copy to the other party. The
other party shall have the right to object to the delivery of the Deposit by
providing Escrow Agent with notice of objection within 10 days after its receipt
of such copy (time being of the essence). Upon receipt of a notice of objection,
Escrow Agent shall promptly provide a copy to the other party.
(e) If
(i)
Escrow Agent receives a timely notice of objection as provided for in this
Section, or (ii) any other disagreement arises resulting in adverse claims
for
the Deposit, whether or not litigation has been instituted, Escrow Agent shall
refuse to comply with any demands for the Deposit and shall continue to hold
the
Deposit until Escrow Agent receives either (x) a notice signed by both Seller
and Buyer directing the disbursement of the Deposit or (y) a final order, which
is not (or is no longer) appealable, of a court of competent jurisdiction,
entered in a proceeding in which Seller, Buyer and Escrow Agent are named as
parties, directing the disbursement of the Deposit, in either of which events
Escrow Agent shall then disburse the Deposit in accordance with that direction.
Escrow Agent shall not be liable for its refusal to comply with any such demands
until it has received a direction of the nature described in clause (x) or
clause (y) of this paragraph. If Escrow Agent is prohibited from delivering
the
full amount of the Deposit pursuant to an order of any court, Escrow Agent
shall
have no obligation to take any action with respect to such order and shall
have
no liability for the failure to deliver the full amount of the Deposit.
(f) Notwithstanding
the foregoing provisions of this Article, Escrow Agent shall have the right
to
resign as Escrow Agent by (i) depositing the Deposit with the court in which
any
litigation with respect to this Agreement or the Deposit is pending or, if
no
such litigation is pending, any court of competent jurisdiction (and commencing
an action for interpleader), the costs thereof to be paid equally by Seller
and
Buyer or (ii) paying the Deposit to a substitute Escrow Agent designated by
Seller and Buyer.
(g) Upon
delivery or deposit of the Deposit by Escrow Agent pursuant to this Section,
Escrow Agent shall be deemed released from all liability under this Article
except for Escrow Agent’s gross negligence or willful default.
15.3 Escrow
Agent.
(a) Escrow
Agent acts hereunder as a depository only and is not responsible or liable
for
(i) the validity of any notice or other communication by Seller or Buyer, (ii)
the collection of any check or other instrument delivered to Escrow Agent,
or
(iii) the loss of the Deposit (due to early presentation for payment or
otherwise), except for its gross negligence or willful default.
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(b) Escrow
Agent shall not have any responsibilities except those set forth in this
Article. Escrow Agent has executed this Agreement for the sole purpose of
agreeing to act as Escrow Agent in accordance with this Article.
(c) The
provisions of this Article shall create no right in any party, other than the
parties to this Agreement and their respective successors and assigns, with
respect to the Deposit or otherwise.
(d) Buyer
hereby acknowledges that (i) Escrow Agent has represented Seller in connection
with this Agreement, (ii) Escrow Agent may continue to represent Seller in
connection with this Agreement and the transactions contemplated by this
Agreement, and (iii) if any dispute or litigation arises under this Agreement
(including any dispute or litigation involving the Deposit), Escrow Agent may
represent Seller in connection therewith.
15.4 Litigation.
If any
litigation arises under this Agreement with respect to the Deposit or otherwise,
notwithstanding any provision of this Agreement to the contrary (including
any
provision limiting the liability of Seller or Buyer), all costs and expenses
of
the litigation (including the reasonable attorneys and witness fees incurred
by
the other party and all costs and expenses of Escrow Agent, including reasonable
attorneys fees) shall be borne by whichever of Seller or Buyer is the losing
party (and if none, then each shall bear its own costs and expenses, and Escrow
Agent’s costs and expenses shall be paid equally by Seller and
Buyer).
16. Miscellaneous.
16.1 Governing
Law; Interpretation.
This
Agreement shall be governed by the law of the State in which the Property is
located, and shall be construed without regard to any presumption or other
rule
requiring construction against the party causing this Agreement to be drafted.
If any words or phrases in this Agreement shall have been stricken out or
otherwise eliminated, whether or not any other words or phrases have been added,
this Agreement shall be construed as if the words or phrases so stricken out
or
otherwise eliminated were never included in this Agreement and no implication
or
inference shall be drawn from the fact that said words or phrases were so
stricken out or otherwise eliminated. All terms and words used in this
Agreement, regardless of the number or gender in which they are used, shall
be
deemed to include any other number and any other gender as the context may
require. If any provision of this Agreement shall be unenforceable, the
remainder of this Agreement shall not be affected thereby.
16.2 Merger;
No Representations.
All
agreements between the parties hereto with respect to the transaction
contemplated by this Agreement are merged in this Agreement, which alone fully
and completely expresses their agreement. This Agreement is entered into after
full investigation, no party relying upon any statement or representation,
not
set forth in this Agreement, made by any other party.
16.3 No
Waivers.
No
waiver by any party shall be deemed a waiver of any other or subsequent
matter.
16.4 Amendment;
Waiver.
This
Agreement may only be changed or terminated, or a provision waived, by a written
agreement executed by all parties.
-19-
16.5 Captions.
The
Article and Section titles of this Agreement are for convenience of reference
only and shall not be deemed a part of the text of this Agreement.
16.6 Parties
Bound.
This
Agreement shall bind and benefit the parties hereto and their respective heirs,
successors and assigns.
16.7 Counterparts.
This
Agreement may be executed by facsimile signatures and in separate counterparts,
each of which when so executed and delivered shall be an original for all
purposes, but all such counterparts shall together constitute but one and the
same instrument.
16.8 Confidentiality.
Buyer
and Seller shall hold in confidence and shall not disclose to third parties,
and
shall cause their officers, directors, employees, representatives, brokers,
attorneys and advisers to hold in confidence and not disclose to third parties,
this Agreement and its terms, and any information relating to the Property
provided by Seller to Buyer in connection with this Agreement (collectively,
the
“Information”), except to the extent any Information (a) must be disclosed by
order of any court or government authority, or by law, (b) is publicly known
or
becomes publicly known other than through the acts of Buyer or Seller, or any
of
their officers, directors, employees, representatives, brokers, attorneys or
advisers, or (c) is necessary or appropriate to be disclosed by Buyer in
connection with performing its obligations under this Agreement or any financing
of the Property.
16.9 Further
Assurances.
Subject
to the provisions of this Agreement, Seller and Buyer shall each take such
additional action, or execute, acknowledge and deliver such additional
documents, as shall be reasonably required in furtherance of this Agreement.
The
provisions of this Section shall survive the Closing.
16.10 Dates.
If any
time period or date set forth in this Agreement shall end on, or be, a Saturday,
Sunday or other date recognized by the federal government or the State of New
York as a holiday, the time period shall end, or the date shall be, the next
day
that is not a Saturday, Sunday or holiday.
-
The
balance of this page is blank and the next page is the signature page
-
-20-
IN
WITNESS WHEREOF, this Agreement has been duly executed by Seller and Buyer
on
the date of this Agreement.
Seller
Xxxxxx
34th
Street,
LLC
By:
Print
Name: Xxxxxxxx Xxxxxx
Title:
Member
Xxxxxxxx
34th
Street,
LLC
By:
Print
Name: Xxxx Xxxxxx
Title:
Authorized Signatory
Buyer
000-000
Xxxx 00xx
Xxxxxx
Corp.
By:
Print
Name:
Title:
Escrow
Agent hereby agrees
to
the
escrow provisions of
this
Agreement.
Goulston
& Storrs, PC
By:
Print
Name: Xxxxxxxx X. Xxxxx
Title:
Director
-21-
Exhibit
A
Land
ALL
that
certain plot, piece or parcel of land, situate, lying and being in the Borough
of MANHATTAN, City, County and State of NEW YORK, bounded and described as
follows:
BEGINNING
at a point on the northerly side of WEST 33RD STREET, distant 205 feet westerly
from the corner formed by the intersection of the northerly side of WEST 33RD
STREET with the westerly side of TENTH AVENUE;
RUNNING
THENCE northerly and parallel with the westerly side of TENTH AVENUE, 197 feet
6
inches to the southerly side of XXXX 00XX XXXXXX;
THENCE
westerly along the said southerly side of WEST 34TH STREET, 145
FEET;
THENCE
southerly and again parallel with the westerly side of TENTH AVENUE, 197 feet
6
inches to the northerly side of XXXX 00XX XXXXXX; and
THENCE
easterly along the northerly side of 33RD STREET, 145 feet to the point or
place
of BEGINNING.
-i-
Exhibit
B
Leases
1. Coach,
Inc. - Lease dated July 1, 2000, amended by First Amendment of Lease dated
February 1, 2002, Second Amendment of Lease dated October 8, 2003 and Third
Amendment of Lease dated February 29, 2008. The original lease, but not the
amendments, are guaranteed by Xxxx Xxx Corporation by Guaranty dated July 1,
2000.
2. Forest
Electric Corp. - Lease dated August 15, 2002. Guaranteed by EMCOR Group, Inc.
by
Guaranty of Lease dated August 15, 2002.
3. Van
Wagner Communications, LLC - Sign Lease dated December 1, 2000, amended by
letter dated January 9, 2003 and currently month-to-month.
-ii-
Exhibit
C
Permitted
Encumbrances
1. All
zoning, building and other laws, restrictions, regulations and
ordinances.
2. The
state
of facts shown on the survey made by J. Xxxxxx Xxxxxxxxx dated May 15, 1942,
and
last updated by Xxxxxx X. Link on April 4, 2003, and any additional state of
facts a new survey or personal inspection would show.
3. The
Leases and the rights of the tenants under the Leases, any recorded memorandum
of any Lease, and any nondisturbance agreements.
4. Real
estate taxes, and water and sewer charges or rents, which are not due and
payable prior to the Closing Date (subject to apportionment as provided in
this
Agreement).
5. Easements
and rights of public utilities.
6. Assessments
which are payable by Buyer pursuant to this Agreement.
7. Liens
and
encumbrances subject to which the Property is to be conveyed pursuant to this
Agreement.
8. Encumbrances
not specifically set forth in this Exhibit which do not interfere with the
development of the Land or the continued use of the Land and the Improvements
in
the manner same are used on the date of this Agreement.
9. The
Loan
Documents.
10. Any
liens
or encumbrances caused by Buyer.
-iii-
Exhibit
D
Service
Contracts
|
1.
|
Management
Agreement dated May 30, 2003 with Xxxxxx Comfort & Sons,
Inc.
|
|
2.
|
Lacor
Mechanical Systems, Inc. - HVAC
Maintenance
|
|
3.
|
Securitas
Security Services USA, Inc. -
Security
|
|
4.
|
Xxxxxx
Fire Drill Corporation - Fire Drill and EAP
Service
|
|
5.
|
Xxxx
X. Xxxxxxx Company, Inc. - Meter
Reading
|
|
6.
|
The
Metro Group, Inc. - Water Treatment
(Boilers)
|
|
7.
|
Realty
Advisory Board - Contract
Negotiations
|
|
8.
|
Fire
Systems, Inc. - Inspection/Maintenance of Fire
Alarm
|
|
9.
|
Assured
Environments - Pest Elimination
|
|
10.
|
Quick
Response Service, Inc. - Alarm
Management
|
|
11.
|
Ready
Alarm - Central Station
|
|
12.
|
Onyx
Restoration Works - Metal
Restoration
|
|
13.
|
Xxxxx
Industries, Inc. - Elevator
Maintenance
|
|
14.
|
X.X.
Xxxxxxxxx & Sons, Inc. - Uniform
Maintenance
|
|
15.
|
TouchCom
- Door Card Access System
|
|
16.
|
Time
Warner Cable of New York City - Commercial Landlord
Agreement
|
-iv-
Exhibit
E
Employees
|
Superintendent
/ Chief Engineer
|
Xxxxx
Xxxxxxx ($40.17/hr.)
|
|
Handyman
|
Xxxxx
Xxxx ($22.525/hr.)
|
|
Xxxxxx
/ Other
|
Xxxxxx
Xxxxx ($20.248/hr.)
|
|
Xxxxxx
/ Other
|
Xxxxxx
XxXxxxxxx ($16.20/hr.)
|
|
Xxxxxx
/ Other
|
Xxxxxxxx
XxXxxxxxx ($20.248/hr.)
|
Commercial
Building Agreement between Local 32BJ, Service Employees International Union,
AFL-CIO and The Realty Advisory Board on Labor Relations, Inc., effective
October 1, 2004 to December 31, 2007 and extended effective January 1, 2008
to
December 31, 2011.
Engineer
Agreement between Realty Advisory Board on Labor Relations, Incorporated and
Local 94-94A-94B, International Union of Operating Engineers, AFL-LIO, effective
January 1, 2004 to December 31, 2006 and extended effective January 1, 2007
through December 31, 2010.
-v-
Exhibit
F
Loan
Documents
1. Gap
Note
dated May 30, 2003
2. Gap
Mortgage dated May 30, 2003
3. Consolidation,
Modification and Restatement of Notes dated May 30, 2003
4. Consolidation,
Modification and Restatement of Mortgages and Security Agreement dated May
30,
2003
5. Assignment
of Leases and Rents dated May 30, 2003
6. Indemnity
Agreement
7. UCC-1
Financing Statements
8. Assignment
of Agreements, Permits and Contracts
9. Cash
Management Agreement
10. Clearing
Account Agreement
11. Replacement
Reserve and Security Agreement
12. Conditional
Assignment of Management Agreement
13. All
other
documents referred to in the foregoing documents which evidence or secure the
loan covered by the foregoing documents.
-vi-
Exhibit
G
TENANCY-IN-COMMON
AGREEMENT
This
TENANCY-IN-COMMON AGREEMENT (the “Agreement”) made this _____ day of July, 2008
by and between XXXXXXXX 34TH STREET, LLC, a Delaware limited liability company
(“Xxxxxxxx”) and 000-000 XXXX 00XX XXXXXX CORP., a Maryland corporation
(“Corp”).
R
E C I T A L S:
WHEREAS,
Xxxxxxxx and Corp each own an undivided fifty percent (50%) ownership interest
as a tenant-in-common with respect to the land and the building located at
000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Block 705, Lot 46) together with
all
of the rights, benefits and appurtenances thereto, as is more particularly
described on Exhibit
A
attached
hereto (the “Property”); and
WHEREAS,
Xxxxxxxx and Corp desire to set forth the terms and conditions of their
relationship as tenants-in-common with respect to the Property.
NOW,
THEREFORE, in consideration of the foregoing premises and the representations,
warranties, covenants and agreements of the parties set forth herein, the
parties hereby agree as follows:
1. Purpose.
The
limited purpose of this agreement to document the relationship between Xxxxxxxx
and Corp in their respective capacities as tenants-in-common with respect to
the
Property.
2. Management
of Property.
The
management and control of the Property shall be vested in Xxxxxxxx and Corp,
who
shall have all of the rights and powers necessary, advisable and convenient
for
the management of the Property. All costs and expenses associated with the
Property shall be paid by Xxxxxxxx and Corp fifty percent (50%) percent each.
Fifty percent (50%) of the costs and expenses associated with the Debt Service
Obligation (as defined herein) shall be borne by Xxxxxxxx and the remaining
fifty percent (50%) of the costs and expenses associated with the Debt Service
Obligation shall be borne by Corp. Xxxxxxxx and Corp may by unanimous agreement
approve the appointment of a managing agent who shall supervise the day to
day
management of the Property. Xxxxxxxx and Corp hereby approve the continued
retention of Xxxxxx X. Comfort & Sons as the manager of the
Property.
3. Allocation
and Distribution; Debt Obligation Matters.
(a) To
the
extent rental payments associated with the Property are received by either
Xxxxxxxx or Corp, such amounts shall be transferred to Corp and Corp shall
use
all or a portion of such funds as necessary for the purpose of making principal
and interest payments with respect to the debt obligation (the “Debt Service
Obligation”) owed to Bear Xxxxxxx Commercial Mortgage, Inc. (or any subsequent
holder of such debt obligation, the “First Mortgagee”), the holder of the fee
mortgage on the Property; provided,
that,
such
funds shall be applied towards payment of the Debt Service Obligation in a
manner so that fifty percent (50%) of such payment or payments shall come from
funds that would otherwise be distributed to Xxxxxxxx and the remaining fifty
percent (50%) of such payment or payments shall come from funds that would
otherwise be distributed to Corp. To the extent any amounts remain following
the
satisfaction of such obligation, Corp shall distribute such amounts as between
Xxxxxxxx and Corp promptly following receipt using the following allocation:
fifty percent (50%) to Xxxxxxxx and fifty percent (50%) to Corp. Xxxxxxxx and
Corp agree that, aside from Debt Service Obligation, the following costs and
expenses owed to the First Mortgagee in its capacity as the holder of the fee
mortgage on the Property shall be borne solely by the tenant under the Net
Lease
(as hereinafter defined) (the “Tenant”): tax escrow payment obligations,
insurance escrow payment obligations and repair reserve payment obligations.
Any
interest payable by the First Mortgagee with respect to rental income shall
be
allocated such that fifty percent (50%) of such amounts shall be distributed
to
Xxxxxxxx and fifty percent (50%) of such amounts shall be distributed to Corp.
All interest payable by First Mortgagee with respect to reserves and escrows
maintained for the benefit of First Mortgagee shall be allocated and distributed
fifty percent (50%) to Xxxxxxxx and fifty percent (50%) to Corp, provided,
however, that if said reserves and escrows are funded by the Tenant, all
interest payable by First Mortgagee with respect to the reserves and escrows
shall be payable to Tenant. The parties acknowledge that the aforementioned
payments are currently required pursuant to the Debt Service Obligation to
be
paid through a lockbox which is maintained by the First Mortgagee.
-vii-
(b) This
Agreement is and shall be subject and subordinate at all times to any mortgage
and the lien, and rights of the holder thereof (in any amounts and all advances
thereon, which may now or hereafter affect this Agreement or the Property),
and
to all renewals, modifications, consolidations, participations, replacements,
and extensions thereof. The term “mortgage” as used herein shall be deemed to
include trust indenture(s), deed(s) of trust, and security deed(s). Xxxxxxxx
and
Corp agree to attorn to the holder thereof, its affiliates, successors and
assigns or any purchaser of the Property in a foreclosure proceeding or by
a
deed in lieu of foreclosure (a “Mortgagee Party”) who shall succeed to
Xxxxxxxx’x and Corp’s respective interests in this Agreement upon request of
such Mortgagee Party. Upon request of the holder thereof, Xxxxxxxx and Corp
shall promptly execute and acknowledge, without charge therefore, an agreement
acknowledging such subordination and agreeing to attorn to any Mortgagee Party
who shall succeed to Xxxxxxxx’x and Corp’s respective interests in this
Agreement.
4. Representations
and Warranties.
(a) Representations
and Warranties of Corp.
Corp
represents and warrants to Xxxxxxxx as of the date of this Agreement as
follows:
(i) Organization,
Good Standing, Power and Qualification.
Corp is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Maryland and has all requisite corporate power and
authority to carry on its business as presently conducted and as proposed to
be
conducted. Corp is duly qualified to transact business and is in good standing
in each jurisdiction in which the failure to so qualify would have a material
adverse effect.
(ii) Authorization.
Corp
has full power and authority to enter into this Agreement. This Agreement,
when
executed and delivered by Corp, will constitute valid and legally binding
obligations of Corp, enforceable in accordance with their terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and any other laws of general application affecting
enforcement of creditors’ rights generally, and as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies.
(iii) No
Conflict.
Neither
the execution and delivery of this Agreement by Corp, nor the consummation
of
the transactions contemplated hereby, shall conflict with, result in a
termination, breach, impairment or violation of (with or without notice or
lapse
of time, or both), or constitute a default, or require the consent, release,
waiver or approval of any third party, under: (a) any provision of the
certificate of incorporation or bylaws of Corp, as currently in effect; (b)
any
federal, state, provincial, local or municipal laws, statutes, ordinances,
regulations, and rules, and all orders, writs, injunctions, awards, judgments
and decrees applicable to the assets, properties and business (and any
regulations promulgated thereunder) of Corp; or (c) any contract or agreement
to
which Corp is a party or to which Corp or any of its assets or properties is
bound.
-viii-
(b) Representations
and Warranties of Xxxxxxxx.
Xxxxxxxx represents and warrants to Corp as of the date of this Agreement as
follows:
(i) Organization,
Good Standing, Power and Qualification.
Xxxxxxxx is a limited liability company duly organized, validly existing and
in
good standing under the laws of the State of Delaware and has all requisite
company power and authority to carry on its business as presently conducted
and
as proposed to be conducted. Xxxxxxxx is duly qualified to transact business
and
is in good standing in each jurisdiction in which the failure to so qualify
would have a material adverse effect.
(ii) Authorization.
Xxxxxxxx has full power and authority to enter into this Agreement. This
Agreement, when executed and delivered by Xxxxxxxx, will constitute valid and
legally binding obligations of Xxxxxxxx, enforceable in accordance with their
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and any other laws of general application
affecting enforcement of creditors’ rights generally, and as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
(iii) No
Conflict.
Neither
the execution and delivery of this Agreement by Xxxxxxxx, nor the consummation
of the transactions contemplated hereby, shall conflict with, result in a
termination, breach, impairment or violation of (with or without notice or
lapse
of time, or both), or constitute a default, or require the consent, release,
waiver or approval of any third party, under: (a) any provision of the
certificate of formation or operating agreement of Xxxxxxxx, as currently in
effect; (b) any federal, state, provincial, local or municipal laws, statutes,
ordinances, regulations, and rules, and all orders, writs, injunctions, awards,
judgments and decrees applicable to the assets, properties and business (and
any
regulations promulgated thereunder) of Xxxxxxxx; or (c) any contract or
agreement to which Xxxxxxxx is a party or to which Xxxxxxxx or any of its assets
or properties is bound.
5. Representatives
of Parties.
(a) Representative
of Corp.
(i) Corp
hereby irrevocably nominates, constitutes and appoints Coach, Inc. (“Coach”) as
the agent and true and lawful attorney-in-fact of Corp (the “Corp
Representative”), with full power of substitution, to act in the name, place and
stead of Corp for purposes of executing any documents and taking any actions
that the Corp Representative may, in his sole discretion, determine to be
appropriate in connection with any matters arising in connection with this
Agreement. Xxxx Xxxx, Senior Vice President and General Counsel of Coach and
Xxxxxxx X. Xxxxxx, III, Executive Vice President and Chief Financial Officer
of
Coach, each acting alone, are designated as authorized agents on behalf of
Coach, in its capacity as Corp Representative.
(ii) Corp
hereby grants to the Corp Representative full authority to execute, deliver,
acknowledge, certify, file and record on behalf of Corp (in the name of Corp)
any and all documents that the Corp Representative may, in his sole discretion,
determine to be appropriate, in such forms and containing such provisions as
the
Corp Representative may, in his sole discretion, determine to be appropriate
(including any amendment to or waiver of rights under this Agreement).
Notwithstanding anything to the contrary contained in this
Agreement:
(A) Xxxxxxxx
and the Xxxxxxxx Representative shall be entitled to deal exclusively with
the
Corp Representative on all matters relating to this Agreement; and
(B) Xxxxxxxx
and the Xxxxxxxx Representative shall be entitled to rely conclusively (without
further evidence of any kind whatsoever) on any document executed or purported
to be executed on behalf of Corp by the Corp Representative, and on any other
action taken or purported to be taken on behalf of Corp by the Corp
Representative, as fully binding upon Corp.
-ix-
(iii) Corp
recognizes and intends that the power of attorney granted herein: (A) is coupled
with an interest and is irrevocable; (B) may be delegated by the Corp
Representative; and (C) shall survive the death or incapacity of the
shareholders of Corp and any dissolution of Corp.
(iv) Corp
shall be entitled to change the Corp Representative and such change shall be
effective upon providing written notice to the Xxxxxxxx Representative of the
name and contact information for the new Corp Representative (the “Change of
Corp Representative Notice”). Following the receipt of a Change of Corp
Representative Notice, Xxxxxxxx shall send all future notices to the Corp
Representative pursuant to Section 9 of this Agreement using the contact
information reflected in the most recent Change of Corp Representative
Notice.
(v) Corp
represents and warrants to Xxxxxxxx as of the date of this Agreement that Coach
shall act as the exclusive Corp Representative and shall have the power and
authority to execute any and all documents and take any and all actions as
may
be necessary on behalf of Corp. Xxxx Xxxx, Senior Vice President and General
Counsel of Coach and Xxxxxxx X. Xxxxxx, III, Executive Vice President and Chief
Financial Officer of Coach, each acting alone, are designated as authorized
agents on behalf of Coach, in its capacity as Corp Representative.
(b) Representative
of Xxxxxxxx.
(i) Xxxxxxxx
hereby irrevocably nominates, constitutes and appoints Xxxx Xxxxxx as the agent
and true and lawful attorney-in-fact of Xxxxxxxx, with full power of
substitution, to act in the name, place and stead of Xxxxxxxx for purposes
of
executing any documents and taking any actions that the Xxxxxxxx Representative
may, in his sole discretion, determine to be appropriate in connection with
any
matters arising in connection with this Agreement. In addition, Xxxxxxxx agrees
prior to the First Closing under the Contract of Sale (as hereinafter defined)
to cause an additional individual to be designated as an additional agent and
true and lawful attorney-in-fact of Xxxxxxxx (Xxxx Xxxxxx and said additional
individual are herein referred to as the “Xxxxxxxx Representative”). The
individuals constituting the Xxxxxxxx Representative, each acting alone, are
designated as authorized agents on behalf of Xxxxxxxx, in their capacity as
Xxxxxxxx Representative.
(ii) Xxxxxxxx
hereby grants to the Xxxxxxxx Representative full authority to execute, deliver,
acknowledge, certify, file and record on behalf of Xxxxxxxx (in the name of
Xxxxxxxx) any and all documents that the Xxxxxxxx Representative may, in his
sole discretion, determine to be appropriate, in such forms and containing
such
provisions as the Xxxxxxxx Representative may, in his sole discretion, determine
to be appropriate (including any amendment to or waiver of rights under this
Agreement). Notwithstanding anything to the contrary contained in this
Agreement:
(A) Corp
and
the Corp Representative shall be entitled to deal exclusively with the Xxxxxxxx
Representative on all matters relating to this Agreement; and
(B) Corp
and
the Corp Representative shall be entitled to rely conclusively (without further
evidence of any kind whatsoever) on any document executed or purported to be
executed on behalf of Xxxxxxxx by the Xxxxxxxx Representative, and on any other
action taken or purported to be taken on behalf of Xxxxxxxx by the Xxxxxxxx
Representative, as fully binding upon Xxxxxxxx.
-x-
(iii) Xxxxxxxx
recognizes and intends that the power of attorney granted herein: (A) is coupled
with an interest and is irrevocable; (B) may be delegated by the Xxxxxxxx
Representative; and (C) shall survive the death or incapacity of the members
of
Xxxxxxxx and any dissolution of Xxxxxxxx.
(iv) Xxxxxxxx
shall be entitled to change the Xxxxxxxx Representative and such change shall
be
effective upon providing written notice to the Corp Representative of the name
and contact information for the new Xxxxxxxx Representative (the “Change of
Xxxxxxxx Representative Notice”). Following the receipt of a Change of Xxxxxxxx
Representative Notice, Corp shall send all future notices to the Xxxxxxxx
Representative pursuant to Section 9 of this Agreement using the contact
information reflected in the most recent Change of Xxxxxxxx Representative
Notice.
(v) Xxxxxxxx
represents and warrants to Corp as of the date of this Agreement that Xxxx
Xxxxxx shall act as the exclusive Xxxxxxxx Representative and shall have the
power and authority to execute any and all documents and take any and all
actions as may be necessary on behalf of Xxxxxxxx. Xxxx Xxxxxx and the second
individual once designated pursuant to paragraph 5(b)(i) above, each acting
alone, shall be designated as authorized agents on behalf of Xxxxxxxx, in its
capacity as Xxxxxxxx Representative.
6. Restriction
on Transfer of Tenant-In-Common Interest.
Xxxxxxxx and Corp agree that none of them will, either directly or indirectly,
make application to or petition any court for partition of the Property, or
transfer its undivided tenant-in-common interest in the Property other than
in
accordance with the terms of that certain Agreement, dated of even date, between
Xxxxxx 34th Street, LLC and Xxxxxxxx 34th Street, LLC, each as sellers, and
Corp
as buyer (the “Contract of Sale”).
7. Term.
The
parties agree that this Agreement shall remain in full force and effect until
such time as (i) either party hereto transfers its tenant-in-common interest
in
the Property or (ii) it is terminated by the mutual written consent of the
parties hereto. Notwithstanding the foregoing, the parties hereto agree that
this Agreement shall remain valid and in effect to the extent a party hereto
transfers its tenant-in-common interest in the Property in violation of the
terms of this Agreement.
8. Indemnification.
(a) Indemnification
by Corp.
Corp
agrees to defend, indemnify and hold Xxxxxxxx, its affiliates and their
respective direct and indirect partners, members, shareholders, directors,
officers, employees, agents and representatives (collectively, the “Xxxxxxxx
Indemnified Parties”) harmless from and against any and all losses, claims,
damages, obligations, liens, assessments, judgments, fines, liabilities and
other costs and expenses, including without limitation, interest, penalties
and
any investigation, reasonable legal fees and disbursements and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, as the same are actually incurred
by
the Xxxxxxxx Indemnified Parties, of any kind or nature whatsoever which may
be
sustained or suffered by any such Xxxxxxxx Indemnified Party (collectively,
“Xxxxxxxx Losses”) relating to or arising out of (i) any breach by Corp of any
covenant or agreement contained in this Agreement or (ii) any breach or
inaccuracy in any representation or warranty of Corp set forth in this
Agreement; provided,
that,
Corp
shall not be liable to the extent such Xxxxxxxx Losses arise from and are based
on (A) a knowing and willful violation of any law or laws by a Xxxxxxxx
Indemnified Party as finally determined by a court of competent jurisdiction
or
(B) a fraudulent act or omission by the Xxxxxxxx Indemnified Party as finally
determined by a court of competent jurisdiction.
(b) Indemnification
by Xxxxxxxx.
Xxxxxxxx agrees to defend, indemnify and hold Corp, its affiliates and their
respective direct and indirect partners, members, shareholders, directors,
officers, employees, agents and representatives (collectively, the “Corp
Indemnified Parties”) harmless from and against any and all losses, claims,
damages, obligations, liens, assessments, judgments, fines, liabilities and
other costs and expenses, including without limitation, interest, penalties
and
any investigation, reasonable legal fees and disbursements and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, as the same are actually incurred
by
the Corp Indemnified Parties, of any kind or nature whatsoever which may be
sustained or suffered by any such Corp Indemnified Party (collectively, “Corp
Losses”) relating to or arising out of (i) any breach by Xxxxxxxx of any
covenant or agreement contained in this Agreement or (ii) any breach or
inaccuracy in any representation or warranty of Xxxxxxxx set forth in this
Agreement; provided,
that,
Xxxxxxxx shall not be liable to the extent such Corp Losses arise from and
are
based on (A) a knowing and willful violation of any law or laws by a Corp
Indemnified Party as finally determined by a court of competent jurisdiction
or
(B) a fraudulent act or omission by the Corp Indemnified Party as finally
determined by a court of competent jurisdiction.
-xi-
9. Notices.
All
notices, demands and communications of any kind which either party may be
required or may desire to serve upon the other party under the terms of this
Agreement shall be made in writing to the Xxxxxxxx Representative or the Corp
Representative as applicable and, except as otherwise contemplated pursuant
to
Sections 5(a)(iv) and 5(b)(iv) of this Agreement, shall be served upon the
Xxxxxxxx Representative or the Corp Representative as applicable at the
corresponding address set forth below.
If
to the
Xxxxxxxx Representative, to:
Xxxx
Xxxxxx
0000
Xxxxx Xxxxx
Xxxxxxx
Xxxxx, XX 00000
and
to:
Xxxx
Xxxxxx
000
Xxxxxx Xxxx
Xxx
Xxxx
Xxxx, XX 00000
and
a
copy to:
Xxxxxxxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
|
Attention:
|
Xxxxxx
X. Xxxxxx, Esq.
|
|
Xxxxxx
X. Xxxxx, Esq.
|
If
to the
Corp Representative, to:
Coach,
Inc.
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
XX 00000
|
Attention:
|
Xxxxxxx
X. Xxxxxx, III, Executive Vice President and Chief Financial
Officer
|
|
Xxxx
Xxxx, Senior Vice President and General
Counsel
|
-xii-
with
a
copy to:
Xxxxxxxx
Xxxxx LLP
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxxx, Esq.
The
attorneys for the respective parties herein may, but shall not be obligated
to,
give notices on behalf of their respective clients.
10. Limitation
on Fiduciary Duties; No Limitation on Pursuit of Other Business
Opportunities.
The
parties hereto disclaim and waive any and all fiduciary duties that may be
owed
to the other party to this Agreement in connection with matters contemplated
in
this Agreement. Further, the parties hereto agree that neither Xxxxxxxx nor
Corp
shall have any duties to the other party hereto with respect to any business
opportunities that may come before Xxxxxxxx or Corp from time to time,
regardless of whether or not such business opportunities relate in any way
to
the Property or are competitive in any way with the ownership and/or management
and operation of the Property.
11. General
Provisions.
(a) Entire
Agreement.
This
Agreement is the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements between them with respect
thereto.
(b) Amendment.
This
Agreement may not be altered or amended except by a written agreement duly
executed by the parties.
(c) Agreement
Binding.
The
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective heirs, successors and assign,
subject, however, to the provisions regarding assignment hereinabove set
forth.
(d) Headings.
The
headings of the several sections of this Agreement are inserted solely for
convenience of reference, and in no way define, describe, limit, extend or
aid
in the construction of the scope, extent or intent of this Agreement or of
any
term or provision thereof.
(e) Severability.
In the
event that any provision or any portion of any provision contained in this
Agreement is unenforceable, the remaining provisions and, in the even that
a
portion of any provision is unenforceable, the remaining portion of such
provision, shall nevertheless be carried into effect.
(f) Governing
Law.
This
Agreement is to be governed by and constructed in accordance with the laws
of
the State of New York. Any suit brought hereon, whether in contract, tort,
equity or otherwise, shall be brought in the Supreme Court of the State of
New
York and County of New York, the parties hereby waiving any claim or defense
that such forum is not convenient or proper. Each party hereby agrees that
any
such court shall have jurisdiction over such party, consents to service of
process in any manner authorized by New York law, and agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
specified by law.
(g) No
Waiver.
The
failure of either party to enforce at any time or for any period of time the
provisions of this Agreement shall not be construed as a waiver of such
provisions or of the right of such party thereafter to enforce each and every
such provision of this Agreement.
(h) Attorneys’
Fees.
If any
legal action or other proceeding is brought for the enforcement of this
Agreement or because of an alleged dispute, breach, default or misrepresentation
in connection with any of the provisions hereof, the successful or prevailing
party shall be entitled to recover from the unsuccessful or nonprevailing party
all attorneys’ fees, court costs and other costs actually incurred in such
action or proceeding, in addition to any other relief to which it may be
entitled. As used herein, “actual attorneys’ fees” or “attorneys’ fees actually
incurred” means the full and actual costs of any legal services actually
performed in connection with the matter for which such fees are sought
calculated on the basis of the usual fees charged by the attorneys performing
such services, and shall not be limited to “reasonable attorneys’ fees” as that
term may be defined in statutory or decisional authority.
-xiii-
(i) Further
Assurances.
Each
party shall perform all such acts and execute and deliver all such instruments,
documents and writings as may be reasonably required to give full effect to
this
Agreement.
(j) Survival
of Representations and Warranties.
Notwithstanding knowledge of facts determined or determinable by the parties
pursuant to investigation or right of investigation, all representations and
warranties of the parties contained in this Agreement shall survive execution,
delivery and performance of this Agreement.
(k) Counterparts.
This
Agreement may be executed by facsimile signatures and in separate counterparts,
each of which when so executed and delivered shall be an original for all
purposes, but all such counterparts shall together constitute but one and the
same instrument.
(l) Default
by Corp.
Any
default or breach by Corp as Buyer under the Contract of Sale or a default
by
Corp as Tenant under the Net Lease among Xxxxxxxx and Corp as Landlord, and
Corp
as Tenant (“Net Lease”) that is uncured within the periods set forth in such
agreements shall constitute a default by Corp under this Agreement, and any
default by Corp under this Agreement that is uncured within the periods set
forth herein shall constitute a default by Corp as Buyer under the Contract
of
Sale and by Corp as Tenant under the Net Lease.
(m) Default
by Xxxxxxxx.
Any
default or breach by Xxxxxxxx as Seller under the Contract of Sale or as a
Landlord under the Net Lease that is uncured within the periods set forth in
such agreements shall constitute a default by Xxxxxxxx under this Agreement,
and
any default by Xxxxxxxx under this Agreement that is uncured within the periods
set forth herein shall constitute a default by Xxxxxxxx as Seller under the
Contract of Sale and by Xxxxxxxx as a Landlord under the Net Lease.
(n) Closing
Under Contract of Sale.
The
terms and conditions of this Agreement to the contrary notwithstanding, no
default or breach by the Corp or Xxxxxxxx, as the case may be, shall relieve
the
other party of the obligation to sell and purchase (respectively) the Premises
pursuant to the Contract of Sale or deprive either party (A) of the remedy
of
specific performance under the Contract of Sale, provided, however, that the
consummation of said closing shall not relieve the defaulting party of any
liability for damages as a result of such default or breach, which liability
shall survive the closing under the Contract of Sale, (B) all amounts due and
payable hereunder which shall not then have been paid shall be paid at said
closing, except that if said amounts are in dispute, the defaulting party shall
deposit in escrow with the attorneys for the non-defaulting party the amount
so
in dispute pending the resolution or final adjudication of said
dispute.
-xiv-
(o) In
addition to any other remedies either party may have with this Agreement, if
either party fails to pay to the other party any amount due hereunder, the
failing party shall also pay interest at the lower (i) three percent (3%) per
annum above the prime rate published in the Wall Street Journal, or (ii) the
highest rate permitted by law on any amounts paid more than ten (10) days after
same is due, which interest shall be paid for the period commencing on the
date
such amount is due and ending on the date same is paid. In addition, if any
amounts due and payable hereunder shall remain past due for more than thirty
(30) days, the defaulting party shall pay to the other interest equal to double
the aforementioned amount.
IN
WITNESS WHEREOF,
this
Agreement is made on the day and year first above written.
XXXXXXXX
34TH STREET, LLC
By:
_____________________________
Name:
Title:
000-000
XXXX 00XX XXXXXX CORP.
By:
_____________________________
Name:
Title:
-xv-
EXHIBIT
A
DESCRIPTION
OF PROPERTY
ALL
that
certain plot, piece or parcel of land, situate, lying and being in the Borough
of MANHATTAN, City, County and State of NEW YORK, bounded and described as
follows:
BEGINNING
at a point on the northerly side of WEST 33RD STREET, distant 205 feet westerly
from the corner formed by the intersection of the northerly side of WEST 33RD
STREET with the westerly side of TENTH AVENUE;
RUNNING
THENCE northerly and parallel with the westerly side of TENTH AVENUE, 197 feet
6
inches to the southerly side of XXXX 00XX XXXXXX;
THENCE
westerly along the said southerly side of WEST 34TH STREET, 145
FEET;
THENCE
southerly and again parallel with the westerly side of TENTH AVENUE, 197 feet
6
inches to the northerly side of XXXX 00XX XXXXXX; and
THENCE
easterly along the northerly side of 33RD STREET, 145 feet to the point or
place
of BEGINNING.
-xvi-
Exhibit
H
NET
LEASE
AGREEMENT
By
and
Between
XXXXXXXX
00XX XXXXXX LLC AND 000-000 XXXX 00XX XXXXXX XXXX.
as
Tenants-in-Common
and
000-000
XXXX 00XX XXXXXX CORP.
as
Tenant
Dated
as
of: July __, 2008
Property
Location: 000 Xxxx 00xx Xxxxxx
-xvii-
NET
LEASE AGREEMENT
This
NET
LEASE AGREEMENT (this “Lease”) is made as of the ____ day of July, 2008 by and
between XXXXXXXX, 00XX
XXXXXX
LLC (“Xxxxxxxx”) and 000-000 XXXX 00XX
XXXXXX
CORP. (“504”), as tenants-in-common, having an address at 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000 (“Landlord”) and 000-000
XXXX 00XX XXXXXX CORP.,
having
an office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 (“Tenant”).
DEMISE
AND PREMISES
Demise.
Landlord
hereby leases to Tenant, and Tenant leases from Landlord, the land and the
building located at 000 Xxxx 00xx Xxxxxx (Block 705, Lot 46), together with
the
improvements thereon (the “Building”), and all the rights, benefits and
appurtenances thereto (collectively, the “Premises”). The land is more
particularly described in Exhibit
A
attached
hereto.
LEASE
TERM/USE
Term.
The
term
of this Lease (“Term”) shall commence upon the date of the First Closing, as
such term is defined in the Contract of Sale (as hereinafter defined) (the
“Commencement Date”) and shall expire, unless extended (as set forth herein) or
until such term shall sooner cease and expire as hereinafter provided, on
June
30, 2015 (“Expiration Date”).
Use
of Premises.
The Premises may be occupied and used by Tenant for any lawful use, subject,
however, to the provisions of this Lease.
RENT
Rent Tenant
shall pay to Landlord rent (“Rent”) commencing on the Commencement Date as set
forth on the rent schedule attached as Exhibit
B
(the
“Rent Schedule”). At the direction of Landlord, Tenant may pay the Rent in two
equal, separate payments to each of Xxxxxxxx 34th Street, LLC and 000-000
Xxxx
00xx Xxxxxx Corp.
Section
3.2 Triple
Net Lease.
(a) Commencing on the Commencement Date, Tenant shall be responsible for
all
costs of every nature and kind relating to the ownership, maintenance, repair,
replacement, and operation of the building, and all other similar costs,
including, without limitation the following:
(i) Tenant
shall be required to arrange and pay for directly to the provider thereof
any
and all electricity, steam, gas, water and/or other utilities desired by
Tenant.
Tenant may discontinue, add or change any utility services in its sole
discretion from time to time.
(ii) (I) Tenant,
at its expense, shall maintain at all times during the term of this Lease
and at
all times when Tenant is in possession of the Premises (and cause its subtenants
or any other occupant of any portion of the Premises by, through or under
Tenant
to maintain) (i) public liability insurance in respect of the Premises and
the
conduct or operation of Tenant’s business therein, with Landlord and Landlord’s
managing agent, if any, as additional insureds, with a combined single limit
(annually and per occurrence) of not less than $5,000,000 (with a deductible
not
exceeding $500,000), (ii) insurance (with a deductible not exceeding $500,000)
covering all of Tenant’s property, including, without limitation, Tenant’s
furniture, fixtures, machinery, equipment and other personal property and
any
property of third parties located in the Premises (“Tenant’s Property”) against
all risks and perils for physical loss and damage, including, without
limitation, additional expenses coverage, in an amount equal to the full
replacement value of Tenant’s Property (as increased from time to time); and
(iii) insurance (with a deductible not exceeding $500,000) covering the
Building, including, without limitation, fixtures, machinery and equipment
therein against all risks and perils for physical loss and damage, in the
amount
equal to the full replacement value of the Building (as increased from time
to
time).
-2-
(II) Tenant
shall deliver to Landlord such policies or certificates of such policies
(in
form reasonably acceptable to landlord) prior to the commencement of the
term of
this Lease. Tenant shall procure and pay for renewals of such insurance from
time to time before the expiration thereof, and Tenant shall deliver to Landlord
and any additional insureds such renewal policy or certificate at least 30
days
before the expiration of any existing policy. All such policies shall name
as
additional insureds Landlord, Landlord’s managing agent and the holder of the
existing mortgage encumbering the Premises (the “Mortgagee”), if required by
Mortgagee, shall be issued by companies reasonably satisfactory to Landlord
and
all such policies shall contain a provision whereby the same cannot be canceled
or modified unless Landlord and any additional insureds are given at least
30
days’ prior notice of such cancellation or modification, including, without
limitation, any cancellation resulting from the non-payment of premiums.
Landlord shall have the right at any time and from time to time, but not
more
frequently than once every two years, to require Tenant to increase the amount
of the insurance maintained by Tenant under this provision, as reasonably
determined by Landlord, provided that such amount shall not exceed the amount
which is comparable to the amount then generally required of tenants in similar
space in similar buildings in the general vicinity of the
building.
(b) It
is the purpose and intent of the Landlord and Tenant that the rent payable
hereunder shall be absolutely net to the Landlord so that this Lease shall
yield, net to the Landlord, the rents specified in this Article 3 in each
year
during the term of this lease.
(c) For
the purpose of this Article:
(i) The
term “Taxes” shall mean (1) the real estate taxes, assessments and special
assessments imposed on the Building and/or the land on which the Building
is
erected (including, without limitation, business improvement district charges),
and (2) any reasonable expenses incurred in contesting the same. If at any
time
during the term of this Lease the methods of taxation prevailing on the date
hereof shall be altered so that in lieu of, or as an addition to, or as a
substitute for, the whole or any part of such real estate taxes, assessments
and
special assessments now imposed on real estate, there shall be levied, assessed
and imposed (x) a tax, assessment, levy, imposition, license fee or charge
wholly or partially as a capital levy or otherwise on the rents received
therefrom, or (y) any other additional or substitute tax, assessment, levy,
imposition , fee or charge, then all such taxes, assessments, levies,
impositions, fees or charges shall be deemed to be included within the term
“Taxes” for the purposes hereof (in no event, however, shall Taxes include any
income, estate or inheritance tax of Landlord, or any transfer
taxes).
-3-
(ii) If
a Tax year ends after the expiration of the term of this Lease, the Tax payment
therefor shall be prorated to correspond to the expiration or termination
of the
term of this Lease, the Tax payment therefor shall be prorated to correspond
to
that portion of such Tax Year occurring within the term of this Lease. In
addition, the Tax payment shall be prorated for the Tax Year in which the
payment of additional rent under this Article commences. If the real estate
fiscal tax year of the City of New York shall be changed during the term
of this
Lease, any Taxes for a real estate fiscal tax year, a part of which is included
within a particular Tax year and a part of which is not so included, shall
be
apportioned on the basis of the number of days in the real estate fiscal
Tax
year included in the particular Tax year for the purpose of making the
computations under this Article.
(iii) The
Tax Payment shall be payable by Tenant within thirty (30) days after receipt
of
a demand from Landlord (but not more than 30 days before the tax is due),
which
demand shall be accompanied by Landlord’s computation of the Tax payment (a copy
of the relevant tax bills shall be sent by Landlord to Tenant with each such
demand).
(d) In
the event the Mortgagee requires the payment of any escrows or reserves for
insurance, Taxes or other reserves, same shall be deposited with Mortgagee
by
Tenant.
(e) The
term
"additional rent" shall also include all sums of money other than Rent as
shall
become due and payable by Tenant to Landlord hereunder. Each and every payment
and expenditure, other than Rent and other than costs for any additions,
alterations, repairs, replacements and improvements to the Building, which
are
required to be paid by Tenant under this Lease, shall be deemed to be additional
rent hereunder, whether or not the provisions requiring payment of such amounts
specifically so state, and shall be payable, unless otherwise provided in
this
Lease, on demand by Landlord and in the case of the non-payment of any such
amounts, Landlord shall have, in addition to all of its other rights and
remedies, all of the rights and remedies available to Landlord hereunder
or by
laws in the case of non-payment of Rent. Unless expressly otherwise provided
in
this Lease, the performance and observance by Tenant of all the terms, covenants
and conditions of this Lease to be performed and observed by Tenant hereunder
shall be performed and observed by Tenant at Tenant's sole cost and expense.
In
the event of Tenant's default in the payment of additional rent, Landlord
shall
have the same remedies as for a default in the payment of Rent.
Section
3.3 Discretion
Over Premises
To
the extent not otherwise set forth in this Lease (but subject to the provisions
of this Lease), Tenant has complete, discretion to make any use of the Premises,
including, but not limited to, the complete, absolute and sole authority
and
discretion over all matters relating to maintenance, alteration, repair,
management and operation of the Premises. Tenant may, but need not, renovate,
construct, reconstruct, demolish, repair and/or alter from time to time the
present or future structural or other portions of the Premises, at its sole
cost
and expense. Tenant shall be solely responsible for the maintenance, repair,
upkeep and renovation of the Premises. Tenant shall have the sole right to
any
signage or other uses of the Premises during the term
hereof.
-4-
Section
3.4 Closing
of Sale
Reference is made to the Agreement dated of even date between Xxxxxx 34th
Street, LLC and Xxxxxxxx 34th Street, LLC, each as sellers and 000-000 Xxxx
00xx
Xxxxxx
Corp., as buyer (the “Contract of Sale”). Anything herein to the contrary
notwithstanding, if, following the First Closing (as such term is defined
in the
Contract of Sale), the Closing by Xxxxxxxx 34th Street, LLC fails to occur
on or
before the date which is 730 days following the date of the First Closing
solely
as a result of the default of Xxxxxxxx 34th Street, LLC (and Tenant as Buyer
under the Contract of Sale is then ready, willing and able to close in
accordance with the terms of the Contract of Sale), then twenty-five percent
(25%) of Tenant’s rent under Section 3.1 above shall be abated, which abatement
shall be applied against the portion of the rent under Section 3.1 which
is
allocated to Xxxxxxxx.
AS
IS
As
Is.
Landlord
shall deliver and Tenant shall accept the Premises in “as is” condition, it
being understood and agreed that Landlord has no obligations with respect
to the
construction of, or any improvements to, the Premises. Landlord makes no
representation or warranty with respect to the condition of the Premises
or its
fitness or availability for any particular use, and Landlord shall not be
liable
for any latent or patent defect therein.
Violations.
Tenant,
at its sole cost and expense, shall, throughout the term of this Lease, comply
in all respects with (i) all laws and/or requirements of public authorities,
whether present or future, foreseen or unforeseen, ordinary or extraordinary,
and whether or not the same shall be presently within the contemplation of
Landlord and Tenant or shall involve any change of governmental policy, or
require structural or nonstructural repairs or alterations or additions,
and
irrespective to the cost thereof, which may be applicable to the Premises
or the
use and occupancy thereof, (ii) any agreements, contracts, easements and
restrictions affecting the Premises or any part thereof or the ownership,
occupancy or use thereof existing on the date hereof or hereafter created
by
Tenant, or consented to or requested by Tenant.
Repairs
and Maintenance.
Subject
to Section 3.3 above, (a) Tenant, at its sole cost and expense, shall be
solely
responsible for the Premises and all fixtures, equipment, machinery and
apparatus (including but not limited to heating, air-conditioning, plumbing,
electrical, sanitary and other systems) in or servicing the Premises and
entrance and exit doors to and from the Building or other areas of the Premises;
as well as all personal property and trade fixtures therein, and all roadways,
sidewalks, curbs and trackage rights, if any (to the extent the same are
subject
to Tenant's control), on, adjacent and appurtenant thereto.
(b) Throughout
the Term, Tenant, at its sole cost and expense, shall be solely responsible
for
any periodic inspection, maintenance, repair and replacement of the heating,
air-conditioning, plumbing, electrical, sanitary and other equipment and
systems
located in or to be located in the Premises.
-5-
(c) Tenant
shall not commit or suffer to be committed any waste upon or about the Premises.
Tenant shall not make any claim or demand upon or bring any action against
Landlord for any loss, cost, injury, damage or other expense caused by any
failure or defect, structural or non-structural, of the Premises or any part
thereof.
(d) Landlord
shall not under any circumstances be required to build any improvements on
the
Premises, or to make any repairs, replacements, alterations or renewals of
any
nature or description to the Premises or to any of the improvements, whether
interior or exterior, ordinary or extraordinary, structural or non-structural,
foreseen or unforeseen, or to make any expenditure whatsoever in connection
with
this Lease or to inspect or maintain the Premises in any way. Tenant hereby
waives the right to make repairs, replacements, renewals or restorations
at the
expense of Landlord pursuant to any laws.
Services
and Utilities.
Landlord shall have no obligation whatsoever to furnish any utilities or
building services of any kind. Tenant shall furnish, at its own expenses,
all
utilities of every type and nature required by it and make its own arrangements
with the public utility company servicing the Premises for the furnishing
of,
and payment of all charges for all utilities of every kind consumed by Tenant
in
the Premises. All electricity consumed by any of the foregoing utilities
or
systems shall be paid for by Tenant.
ARTICLE
5. END OF TERM
Section
5.1 End
of Term. At
or before the end of the Term, Tenant will promptly quit and surrender the
Premises to Landlord, free of all tenancies or other rights of occupancy,
subject to Article 3 above and subject to the Contract of
Sale.
ARTICLE
6. MECHANIC’S LIENS
Section
6.1 Mechanic’s
Liens.
Tenant
will pay or cause to be paid all costs and charges for work done by or for
Tenant in or to the Premises, and for all materials furnished for or in
connection with such work. Tenant will indemnify Landlord against, and hold
Landlord harmless of and from, all mechanics’ liens and claims of liens, and all
other liabilities, claims and demands on account of such work by or on behalf
of
Tenant. If any such lien is filed against the Premises or the Building, Tenant
will cause such lien to be discharged of record, by bond, payment of money
into
court, or otherwise, within sixty (60) days of Tenant’s receipt of notice of the
filing of the notice of lien for same. If any such lien cannot be removed
or
discharged within sixty (60) days, Tenant shall not be deemed in default
provided Tenant is diligently pursuing such discharge or removal.
ARTICLE
7. SUBORDINATION AND NON-DISTURBANCE
Section
7.1 Subordination
and Non-Disturbance.
(a) Without
the necessity of any additional document being executed by Tenant for the
purpose of effecting a subordination, this Lease shall be subject and
subordinate at all times to any mortgage and the lien, and the rights of
the
holder thereof (in any amounts and all advances thereon, which may now or
hereafter affect this Agreement or the Premises, and to all renewals,
modifications, consolidations, participations, replacements, and extensions
thereof. The term “mortgage” as used herein shall be deemed to include trust
indenture(s), deed(s) of trust, and security deed(s). Tenant agrees to attorn
to
the holder thereof, its affiliates, successors and assigns or any purchaser
of
the Premises in a foreclosure proceeding or by a deed in lieu of foreclosure
(a
“Mortgagee Party”) who shall succeed to the Landlord’s interest in the Premises
upon request of such Mortgagee Party. Upon request of the holder thereof,
the
parties shall promptly execute and acknowledge, without charge therefor,
an
agreement acknowledging such subordination and agreeing to attorn to any
Mortgagee Party who shall succeed to Landlord’s interest in the Premises.
-6-
Landlord
represents and warrants that as of the date hereof there are no ground or
underlying leases covering the whole or any portion of the
Building.
Intentionally
Omitted.
Landlord
covenants that, during the term of this Lease, it will not encumber the property
with any mortgages, liens, ground leases, security interests or encumbrances
other than the Mortgage and will take no action to increase the its obligations
under the Mortgage.
ARTICLE
8. EMINENT
DOMAIN/DAMAGE AND DESTRUCTION
Section
8.1 Taking/Damage
and Destruction.
If all
or part of the Premises are taken by the exercise of the power of eminent
domain, Tenant shall be entitled to claim all awards or compensation which
are
due from the applicable governmental organization that exercised the power
of
eminent domain or provides compensation for the exercise of such eminent
domain
power. If all or part of the Building shall be damaged or destroyed by fire
or
other casualty, Tenant shall be entitled to claim all insurance proceeds,
awards
or compensation with respect to said damage or destruction. In the case of
a
taking or damage and destruction, this Lease and the Tenant’s obligations
hereunder shall not be affected hereby. Tenant may, but need not, rebuild,
repair, alter, demolish or otherwise deal with the Building as it shall deem
appropriate in each instance.
-7-
ARTICLE
9. CROSS
DEFAULT
Section
9.1 Default
by Tenant.
Any
default or breach by Tenant as buyer under the Contract of Sale or a default
by
Tenant as a tenant-in-common under the TIC Agreement (as hereinafter defined)
that is uncured within the periods set forth in such agreements shall constitute
a default by Tenant under this Lease, and any default by Tenant under this
Lease
that is uncured within the periods set forth herein shall constitute a default
by Tenant as buyer under the Contract of Sale and by Tenant as a
tenant-in-common under the TIC Agreement.
Section
9.2 Default
by Landlord.
Any
default or breach by Xxxxxxxx as Seller under the Contract of Sale or a default
by Xxxxxxxx as a tenant-in-common under the TIC Agreement that is uncured
within
the periods set forth in such agreements shall constitute a default by Xxxxxxxx
under this Lease, and any default by Landlord under this Lease that is uncured
within the periods set forth herein shall constitute a default by Xxxxxxxx
under
the Contract of Sale and by Xxxxxxxx as a tenant-in-common under the TIC
Agreement.
Section
9.3 Closing
Under Contract of Sale.
The
terms and conditions of this Article 9 to the contrary notwithstanding, no
default or breach by the Tenant or Landlord, as the case may be, shall relieve
the other party of the obligation to sell and purchase (respectively) the
Premises pursuant to the Contract of Sale or deprive either party of the
remedy
of specific performance under the Contract of Sale, provided, however, that
(A)
the consummation of said closing shall not relieve the defaulting party of
any
liability for damages as a result of such default or breach, which liability
shall survive the closing under the Contract of Sale, (B) all amounts of
Rent
due and payable pursuant to Section 3.1 hereunder which shall not then have
been
paid shall be paid at said closing, and (C) all amounts of additional rent
which
shall not then have been paid shall be paid at said closing except that if
said
amounts are in dispute, the defaulting party shall deposit in escrow with
the
attorneys for the non-defaulting party the amount so in dispute pending the
resolution or final adjudication of said dispute.
ARTICLE
10. QUIET ENJOYMENT
Section
10.1 Quiet
Enjoyment.
Landlord
covenants and agrees with Tenant, that upon Tenant paying the rent and
additional rent and observing and performing all of the terms, covenants
and
conditions on Tenant’s part to be observed and performed, Tenant may peaceably
and quietly enjoy the Premises, subject nevertheless to the terms and conditions
of this Lease and the Mortgage.
ARTICLE
11. DEFAULT
Section
11.1 Default
by Tenant, Remedies.
(a) If
Tenant defaults in fulfilling any of the covenants of this Lease, or if the
Premises becomes vacant or deserted, or if this Lease be rejected under §365 of
Title 11 of the U.S. Code (Bankruptcy Code); or if any execution or attachment
shall be issued against Tenant or any of Tenant’s property whereupon the
Premises shall be taken or occupied by someone other than Tenant; then in
any
one or more of such events, upon Landlord serving a written 10 days notice
with
respect to a default in the payment of rent or additional rent or 30 days
notice
with respect to any other default notice upon Tenant specifying the nature
of
said default, and upon the expiration of said 10 or 30 days, as the case
may be,
if Tenant shall have failed to comply with or remedy such default, or if
the
said default or omission complained of shall be of a nature that the same
cannot
be completely cured or remedied within said 30 day period (it being intended
that a default in the payment of rent or additional rent shall not have the
benefit of this extension of the cure period), and if Tenant shall not have
diligently commenced during such default within such 30 day period, and shall
not thereafter with reasonable diligence and in good faith, proceed to remedy
or
cure such default, then Landlord may serve a written five (5) days notice
of
cancellation of this Lease upon Tenant, and upon the expiration of said five
(5)
days this Lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such five (5) day period were the day
herein
definitely fixed for the end and expiration of this Lease and the term thereof,
and Tenant shall then quit and surrender the Premises to Landlord, but Tenant
shall remain liable as hereinafter provided.
-8-
(b) In
case of re-entry or dispossession by legal proceedings, or termination of
this
Lease by Landlord as in subparagraph (a) above provided, Tenant shall be
liable
to Landlord for all reasonable expenses Landlord incurs for: (i) legal fees
and
other expenses related to obtaining possession; and (ii) brokerage commissions
in obtaining another tenant.
(c) In
addition to any other remedies Landlord may have under this Lease, Tenant
shall
pay to Landlord interest at the lower of (i) 3% per annum above the prime
rate
published in the Wall Street Journal (or, if no longer published, then Landlord
shall substitute a similar rate) or (ii) the highest rate permitted by law
and
on rent or additional rent paid more ten (10) days after same is due, which
interest shall be paid for the period commencing on the date such rent or
additional rent was first due and ending on the date same as paid. In addition,
if any amounts of Rent due and payable under Section 3.1 hereof shall remain
past due for more than thirty (30) days, Tenant shall pay to Landlord interest
equal to double the aforesaid amount.
(d) If
the
Premises are not surrendered and vacated as and at the time required by this
Lease (time being of the essence), Tenant shall be liable to Landlord for
(a)
all losses, costs, liabilities and damages which Landlord may incur by reason
thereof, including, without limitation, reasonable attorneys’ fees, and Tenant
shall indemnify, defend and hold harmless Landlord against all claims made
by
any succeeding tenants against Landlord or otherwise arising out of or resulting
from the failure of Tenant to timely surrender and vacate the Premises in
accordance with the provisions of this Lease, and (b) per diem use and occupancy
in respect of the Premises equal to two times the fixed rent and additional
rent
payable under this lease for the last year of the term of this Lease (which
amount Landlord and Tenant presently agree is the minimum to which Landlord
would be entitled, is presently contemplated by them as being fair and
reasonable under such circumstances and is not a penalty). In no event, however,
shall this paragraph be constructed as permitting Tenant to hold over in
possession of the Premises after the expiration or termination of the term
of
this Lease.
-9-
(e) LANDLORD
AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER AGAINST THE OTHER, OR AS TO ANY MATTERS ARISING OUT OF
OR IN
ANY WAY CONNECTED WITH THIS LEASE, OR THEIR RELATIONSHIP AS LANDLORD AND
TENANT,
OR TENANT’S USE OR OCCUPANCY.
ARTICLE
12
ASSIGNMENT AND SUBLETTING
Section
12.1 Tenant’s
Rights.
(a)
Tenant may assign this Lease or sublet any or all of the Premises without
Landlord’s consent upon thirty (30) days written notice to
Landlord.
(b) Each
assignment or subletting pursuant to this Article shall be subject to all
of the
terms of this Lease. Notwithstanding any such subletting or assignment and/or
acceptance of rent or additional rent by Landlord from any subtenant or
assignee, Tenant shall remain fully liable for (and any assignee shall assume
the obligation for) the payment of the fixed rent and additional rent due
and to
become due under this Lease and for the performance of all Tenant’s obligations
under this Lease. All acts and omissions of any subtenant or assignee or
anyone
claiming under or through any subtenant or assignee which shall be in violation
of any of the obligations of this Lease shall be deemed to be a violation
by
Tenant. Tenant further agrees that notwithstanding any such subletting or
assignment, no further subletting or assignment by tenant or any person claiming
through or under Tenant shall be made except upon compliance with and subject
to
the provisions of this Article.
ARTICLE
13 NOTICES
Section
13.1 Notices.
All
notices required or permitted by any provision of this Lease shall be directed
as follows:
|
To
Tenant:
|
Coach,
Inc.
|
|
000
Xxxx 00xx Xxxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Attention:
Xxxx Xxxx, General Counsel
|
|
with
a copy to:
|
Xxxxxxxx
Xxxxx LLP
|
|
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Attention:
Xxxxxxx X. Crystal, Esq.
|
|
To
Landlord:
|
000-000
Xxxx 00xx Xxxxxx Xxxx.
|
|
c/o
Coach, Inc.
|
|
000
Xxxx 00xx Xxxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Attention:
Xxxx Xxxx, General Counsel
|
|
with
a copy to:
|
Xxxxxxxx
Xxxxx LLP
|
|
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Attention:
Xxxxxxx X. Xxxxxxx, Esq.
|
-10-
|
and:
|
Xxxxxxxx
34th Street, LLC
|
|
c/o
Xxxx Xxxxxx
|
|
0000
Xxxxx Xxxxx
|
|
Xxxxxxx
Xxxxx, XX 00000
|
|
and
|
Xxxxxxxx
34th Street, LLC
|
|
c/o
Xxxx Xxxxxx
|
|
000
Xxxxxx Xxxx
|
|
Xxx
Xxxx Xxxx, XX 00000
|
|
with
a copy to:
|
Xxxxxxxx
Xxxxxx
|
|
000
Xxxxxxxxx Xxxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Attention:
Xxxxxx Xxxxxx, Esq.
|
All
notices to be given hereunder by either party shall be written and sent by
registered or certified mail, return receipt requested, postage prepaid,
hand
delivered or sent via a nationally recognized next day courier service (such
as
Federal Express, DHL, etc.) addressed to the party intended to be notified
at
the address set forth above. Either party may, at any time, or from time
to
time, notify the other in writing of a substitute address(es) for that given
above, and thereafter notices shall be directed to the substitute address(es).
Notice given by certified or registered mail or by next day courier service
as
aforesaid shall be deemed given on the date of deposit in the mail or with
the
next day courier service. Notices hand delivered shall be deemed given on
the
day delivered (or first refused for delivery).
The
attorneys for the respective parties herein may, but shall not be obligated
to,
give notices on behalf of their respective clients.
-11-
ARTICLE
14. ESTOPPEL
CERTIFICATES
Section
14.1 Estoppel
Certificates.
Within
fifteen (15) days after receipt of Landlord’s or Tenant’s request (“Requesting
Party”), Landlord or Tenant, as the case may be (“Answering Party”), shall
execute and deliver to the Requesting Party a declaration to any person
designated by such party: (i) stating the Commencement Date and Expiration
Date
of the Lease; and (ii) certifying (a) that this Lease is in full force and
effect and has not been assigned, modified, supplemented or amended (except
by
such written instruments set forth therein), (b) that all conditions under
this
Lease to be performed by the Answering Party have been satisfied (stating
exceptions, if any), (c) to the best knowledge of Answering Party, no defenses
or offsets against the enforcement of this Lease by the Answering Party exist
(or stating those claimed), (d) advance Rent, if any, paid by Tenant, (e)
the
date to which Rent has been paid, and (f) such other information as the
Requesting Party reasonably requires.
ARTICLE
15. MISCELLANEOUS
Section
15.1 Waiver.
No
waiver by Landlord or Tenant of any breach of any term, covenant or condition
hereof shall be deemed a waiver of the same or any subsequent breach of the
same
or any other term, covenant or condition. The acceptance of Rent by Landlord
shall not be deemed a waiver of any earlier breach by Tenant of any term,
covenant or condition hereof, regardless of Landlord’s knowledge of such breach
when such Rent is accepted. No covenant, term or condition of this Lease
shall
be deemed waived by Landlord or Tenant unless waived in writing.
Section
15.2 Entire
Agreement.
There
are no representations, covenants, warranties, promises, agreements, conditions
or undertakings, oral or written, between Landlord and Tenant other than
herein
set forth, set forth in the Contract of Sale or in that certain
Tenancy-In-Common Agreement between Xxxxxxxx and 504 of even date (the “TIC
Agreement”). Except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon Landlord
or
Tenant unless in writing and signed by both parties.
Section
15.3 No
Partnership.
Landlord
does not, in any way or for any purpose, become a partner, employer, principal,
master, agent or joint venturer of or with Tenant.
Section
15.4 Counterparts.
This
Lease may be executed by facsimile signatures and in separate counterparts,
each
of which when so executed and delivered shall be an original for all purposes,
but all such counterparts shall together constitute but one and the same
instrument.
Section
15.5 Captions
and Section Numbers.
This
Lease shall be construed without reference to the titles of Articles and
Sections, which are inserted only for convenience of reference.
-12-
Section
15.6 Number
and Gender.
The use
herein of a singular term shall include the plural and use of the masculine,
feminine or neuter genders shall include all others.
Section
15.7 Broker’s
Commission.
Landlord
and Tenant each represent to the other that they dealt with no broker in
connection with this transaction. Landlord and Tenant shall each indemnify,
defend and hold harmless the other from and against any claim by any broker
or
other person for a commission or other compensation in connection with that
transaction if such claim is based in whole or in part upon any act of the
indemnifying party or its representatives, and from all losses, liabilities,
costs and expenses in connection with such claim, including reasonable attorneys
fees. Landlord and Tenant agree to pay all amounts due to their respective
consultants.
Section
15.8 Partial
Invalidity.
If any
provision of this Lease or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remainder of this Lease,
or
the application of such provision to persons or circumstances other than
those
as to which it is invalid or unenforceable, shall not be affected thereby
and
each provision of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
Section
15.9 Intentionally
Omitted.
Section
15.10 Applicable
Law.
This
Lease shall be construed under the internal laws of the State of New
York.
Section
15.11 Holding
Over.
If Tenant remains in possession of all or any part of the Premises after
the
expiration of the Term: (a) such tenancy will be deemed to be a periodic
tenancy
from month-to-month only; (b) such tenancy will not constitute a renewal
or
extension of this Lease for any further term; and (c) such tenancy may be
terminated by either party hereto upon thirty (30) days prior written notice
by
either party and Tenant shall pay two hundred (200%) percent of the Rent
then
otherwise due and payable hereunder. Tenant at any time or by Landlord at
least
twelve (12) months after the expiration of the Term. Such month-to-month
tenancy
will be subject to every other term, condition, and covenant contained in
this
Lease.
Section
15.12 Signs.
During
the Term hereof and any renewals, Tenant shall have the sole and exclusive
right
to install signage on and in the Building and the Premises, subject only
to
obtaining all governmental and municipal approvals and permits required in
connection with its signage.
Section
15.13 Landlord’s
Consent.
Wherever
in this Lease Tenant is required to, or desires to, obtain Landlord’s consent or
approval, Landlord agrees to not unreasonably withhold, delay or condition
any
such consent(s).
Section
15.14 Intentionally
Omitted.
-13-
Section
15.15 Subleases.
This
Lease is subject to (a) that certain Lease Agreement between Forest Electric
Corp. and the predecessors-in-interest to Landlord dated Xxxxxx 00, 0000,
(x)
that certain Lease Agreement between Coach, Inc. and the
predecessors-in-interest to Landlord, dated July 1, 2000, and (c) that certain
Signed Lease between Van Wagner Communications, LLC and the
predecessors-in-interest to Landlord dated December 1, 2000, each as heretofore
amended (collectively, the “Subleases”) and the Contract of Sale. From and after
the date hereof, Forest Electric Corp., Coach, Inc. and Van Wagner
Communications, LLC shall be subtenants of Tenant, and Tenant is solely
responsible for all obligations and entitled to all of the benefits of the
landlord under the terms of the Subleases and shall have sole authority with
respect to the exercise of any remedies with respect thereto, and the entering
into of any amendments, modifications, extensions or terminations
thereof.
At
the
time of the First Closing (as such term is defined in the Contract of Sale),
Xxxxxxxx 00xx Xxxxxx LLC shall execute an Assignment of the Landlord’s interest
in the Subleases to Tenant (the “Assignment of Subleases”), which Assignment of
Subleases shall further provide that if Tenant shall fail to pay Rent hereunder
after applicable notice and cure periods, said Assignment of Subleases shall
be
void and the landlord’s interest in said Subleases shall revert to
Landlord.
Section
15.16 Corporate
Authority.
Landlord and Tenant represent and warrant to each other that their respective
Board of Directors have duly authorized the execution of this
Lease.
Section
15.17 No
Owner Liability. Landlord,
its partners, members, officers, directors and principals, disclosed and
undisclosed, shall have no personal liability under this Lease. Tenant shall
look only to Landlord’s interest in the land and the building for the
satisfaction of Tenant’s remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event
of any
default by Landlord under this Lease, and no other property or assets of
Landlord or its partners, members, officers, directors or principals, disclosed
or undisclosed, shall be subject to lien, levy, execution or other enforcement
procedure for the satisfaction of Tenant’s remedies under or with respect to
this Lease, the relationship of Landlord and Tenant under this Lease or Tenant’s
use or occupancy of the Premises. If Tenant shall acquire a lien on such
other
property or assets by judgment of otherwise, Tenant shall promptly release
such
lien by executing and delivering to Landlord any instrument, prepared by
Landlord, required for such lien to be released.
Section
15.18 Hazardous
Materials.
In
addition to any other restrictions set forth in this Lease, except as otherwise
provided in this Lease, Tenant shall not cause or permit, as a result of
any
intentional act or omission on the part of Tenant, its agents, employees,
tenants, subtenants or other occupants of the Premises to release Hazardous
Substances (as defined in this Article) in or from any portion of the Premises
in violation of any Environmental Laws. Tenant shall indemnify, defend and
hold
harmless Landlord, and its successors, assigns, and each of their partners,
employees, agents, officers and directors from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, losses, costs or expenses
of whatever kind or nature, known or unknown, contingent or otherwise,
including, without limitation, reasonable attorneys’ and consultants’ fees and
disbursements and investigation and laboratory fees arising out of (a) the
presence, disposal, release or threat of release of any Hazardous Substance
as a
result of any act or omission of Tenant, its agents, employees, tenants,
subtenants, invitees or other occupants of the Premises, in or from or affecting
the Premises (b) any personal injury (including wrongful death) or property
damage, real or personal arising out of any such Hazardous Substance, (c)
any
lawsuit brought, settlement reached, or government order relating to such
Hazardous Substance, and (d) any violations of laws, order, regulations,
requirements or demands or governmental authorities by Tenant. “Hazardous
Substance” shall mean “solid waste” or “hazardous waste,” “hazardous material,”
“hazardous substance” and “petroleum product” as defined in the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous Material Transportation Act,
the
Federal Water Pollution Control Act and the Superfund Amendments and
Reauthorization Act of 1986, any laws relating to underground storage tanks
and
any similar or successor federal law, state law or local statutes and ordinances
and any rules, regulations and policies promulgated thereunder, as any of
such
federal, state and local statutes, ordinances and regulations may be amended
from time to time (collectively, “Environmental Laws”).
-14-
Section
15.19 Net
Lease; Non-Terminability.
This is
an absolutely net lease, and this Lease shall not terminate nor shall Tenant
have any right to terminate this Lease; nor shall Tenant be entitled to any
abatement, deduction, deferment, suspension or reduction of, or setoff, defense
or counterclaim against, any rentals, charges, or other sums payable by Tenant
under this Lease; nor shall the respective obligations of Landlord and Tenant
be
otherwise affected by reason of damage to or destruction of the Premises
from
whatever cause, any taking by condemnation, eminent domain or by agreement
between Landlord and those authorized to exercise such rights, the lawful
or
unlawful prohibition of Tenant's use of the Premises, the interference with
such
use by any persons, corporations or other entities, or by reason of any default
or breach of any warranty by Landlord under this Lease or any other agreement
between Landlord and Tenant, or to which Landlord and Tenant are parties,
or for
any other cause whether similar or dissimilar to the foregoing, any laws
to the
contrary notwithstanding; it being the intention that the obligations of
Landlord and Tenant hereunder shall be separate and independent covenants
and
agreements and that the Rent, additional rent and all other rents and charges
and sums payable by Tenant hereunder shall continue to be payable in all
events
unless the obligations to pay the same shall be terminated pursuant to the
express provisions of this Lease; and Tenant covenants and agrees that it
will
remain obligated under this Lease in accordance with its terms, and, except
as
may be expressly authorized by the terms of this Lease, that it will not
take
any action to terminate, cancel, rescind or void this Lease, notwithstanding
the
bankruptcy, insolvency, reorganization, composition, readjustment, liquidation,
dissolution, winding up or other proceedings affecting Landlord or any assignee
of, or successor to, Landlord, and notwithstanding any action with respect
to
this Lease that may be taken by a trustee or receiver of Landlord or any
assignee of, or successor to, Landlord or by any court in any such
proceeding.
Section
15.20 Attorneys
Fees.
If any
legal action or other proceeding is brought for the enforcement of any
provisions of this Lease or because of an alleged default hereunder, then
the
prevailing party shall be entitled to recover from the other party all
attorney’s fees, court costs and other costs actually incurred in such action or
proceeding, in addition to any other relief to which it may be
entitled.
-15-
IN
WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of the date
and
year first above written.
LANDLORD:
XXXXXXXX
00XX XXXXXX LLC
By:
___________________________
Name:
Title:
Name:
Title:
000-000
XXXX 00XX XXXXXX CORP.
By:
___________________________
Name:
Title:
Name:
Title:
TENANT:
000-000
XXXX 00XX XXXXXX CORP.
By:
___________________________
Name:
Title:
Name:
Title:
-16-
EXHIBIT
A
The
Land
ALL
that
certain plot, piece or parcel of land, situate, lying and being in the Borough
of MANHATTAN, City, County and State of NEW YORK, bounded and described as
follows:
BEGINNING
at a point on the northerly side of WEST 33RD STREET, distant 205 feet westerly
from the corner formed by the intersection of the northerly side of WEST
33RD
STREET with the westerly side of TENTH AVENUE;
RUNNING
THENCE northerly and parallel with the westerly side of TENTH AVENUE, 197
feet 6
inches to the southerly side of XXXX 00XX XXXXXX;
THENCE
westerly along the said southerly side of WEST 34TH STREET, 145
FEET;
THENCE
southerly and again parallel with the westerly side of TENTH AVENUE, 197
feet 6
inches to the northerly side of XXXX 00XX XXXXXX; and
THENCE
easterly along the northerly side of 33RD STREET, 145 feet to the point or
place
of BEGINNING.
EXHIBIT
B
With
closing in September
Rent
Schedule
|
Month
|
Rent
|
|
Month
1
|
$448,309
|
|
Month
2
|
$448,661
|
|
Month
3
|
$451,045
|
|
Month
4
|
$445,052
|
|
Month
5
|
$441,462
|
|
Month
6
|
$444,639
|
|
Month
7
|
$449,663
|
|
Month
8
|
$456,004
|
|
Month
9
|
$456,883
|
|
Month
10
|
$452,116
|
|
Month
11
|
$494,784
|
|
Month
12
|
$492,511
|
|
Month
13
|
$494,994
|
|
Month
14
|
$495,356
|
|
Month
15
|
$497,807
|
|
Month
16
|
$491,651
|
|
Month
17
|
$488,935
|
|
Month
18
|
$492,190
|
|
Month
19
|
$497,342
|
|
Month
20
|
$503,833
|
|
Month
21
|
$504,745
|
|
Month
22
|
$499,854
|
|
Month
23
|
$500,162
|
|
Month
24
|
$497,826
|
|
Month
25 and each month thereafter through June 30, 2015
|
$476,909
|
Exhibit
I
|
Via
Hand Delivery
000-000
Xxxx 00xx Xxxxxx Xxxx.
c/o
Coach, Inc.
000
Xxxx 00xx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxx Xxxx, General Counsel
|
July
__, 2008
|
Re: Net
Lease
Agreement by and between Xxxxxxxx 00xx Xxxxxx LLC (“Xxxxxxxx”) and 000-000 Xxxx
00xx Xxxxxx Corp. (“504-514 Corp.”) as Tenants-in-Common and 000-000
Xxxx 00xx Xxxxxx Corp. as Tenant (the “Net Lease”)
Ladies
and Gentlemen:
Reference
is made to the Net Lease. The parties to this letter agreement (the “Letter
Agreement”) hereby agree that:
1. Upon
the
effective date of the Net Lease, 504-514 Corp. shall have and may exercise
all
powers and rights necessary, proper, convenient or advisable to act with
respect
to any and all matters associated with the current debt obligation due and
owing
to Bear Xxxxxxx Commercial Mortgage, Inc., or any subsequent holder of such
debt
obligation (the “First Mortgagee”) by 504-514 Corp. (the “Debt Obligation”). The
foregoing authorization shall include without limitation the authority to
negotiate, finalize, execute and deliver any amendment, restatement,
restructuring, waiver or any other matter associated with the Debt Obligation
and the applicable agreements and other documentation relating thereto;
provided,
however,
that
504-514 Corp. shall not be entitled to perform any of the following actions
without obtaining the prior consent of Xxxxxxxx: (i) any modification of
the
Debt Obligation which would result in an increase in the aggregate costs
and
expenses to be paid by Xxxxxxxx with respect to the Debt Obligation; or (ii)
any
action which would constitute an event of default under the existing agreements
and other documentation associated with the Debt Obligation.
2. In
the
event that 504-514 Corp. shall take any action which would trigger or otherwise
result in an obligation to prepay the Debt Obligation, then 504-514 Corp.
shall
be responsible for the prepayment of the Debt Obligation. If the Debt Obligation
is so accelerated or if 504-514 Corp. elects to defease or otherwise acquire
or
prepay the Debt Obligation pursuant to the terms of the loan documents relating
to the Debt Obligation, then 504-514 Corp. shall pay all costs in connection
with such defeasance or prepayment, and 50% of the Debt Obligation shall
be
modified to constitute a mortgage debt (which 504-514 Corp. may, but is not
required to, record) from Xxxxxxxx to 504-514 Corp. in an amount equal to
50% of
the Debt Obligation, on similar and no less favorable terms to the Debt
Obligation (the “Mortgage Debt”), which Mortgage Debt shall be prepayable at any
time without premium or penalty.
000-000
Xxxx 00xx Xxxxxx Corp.
July
__, 2008
Page
2
Please
acknowledge your agreement to the provisions of this Letter Agreement by
signing
this Letter Agreement where indicated below.
Very
truly yours,
XXXXXXXX
00XX XXXXXX LLC
By:
__________________________
Name:
Title:
Name:
Title:
Accepted
and agreed this
____
day
of July 2008:
000-000
XXXX 00XX XXXXXX CORP.
By: ___________________________
Name:
Title
Name:
Title
