SALE-PURCHASE AGREEMENT
by and among
MENDIK REAL ESTATE LIMITED PARTNERSHIP,
NY REAL ESTATE SERVICES 1 INC.,
MENDIK RELP CORPORATION, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Sellers,
and
VORNADO REALTY L.P.,
Purchaser of 550/330 Property,
and
VORNADO REALTY TRUST,
Purchaser of 2 Park Interests.
________________________________________
550 & ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
________________________________________
September 23, 1998
TABLE OF CONTENTS
Page
1. Sale of the 550/330 Property by 550/330 Seller
to Purchaser 2
1.1. Ground Leases 2
1.2. Mamaroneck Improvements 2
1.3. Fixtures 2
1.4. Personal Property 3
1.5. Other Property 3
1.6. Space Leases 3
1.7. Security Deposits 3
1.8. Contract Rights 4
1.9. Third-Party Contracts 4
2. Sale by 2 Park Sellers to Purchaser 5
3. Purchase Price 5
3.1. Letter of Credit as Security 5
3.2. 550/330 Purchase Price 6
3.3. 2 Park Purchase Price 6
4. Permitted Exceptions 7
4.1. Legal Requirements 7
4.2. Existing Title Exceptions 7
4.3. Utility Easements 7
4.4. Roads 7
4.5. Taxes 7
4.6. Water and Sewer 7
4.7. Violations 8
4.8. Survey 8
4.9. Space Leases 8
4.10. Other Items 8
5. Closing Date 8
6. Apportionments and Payments 8
6.1. 550/330 Property Apportionment 8
6.2. 2 Park Interests Apportionment 9
6.3. Governmental Charges 10
6.4. Utility Meters 11
6.5. Payment of Certain Items 11
6.6. Fuel Oil 11
6.7. Assessments 11
6.8. Rents and Charges Under Space Leases 11
6.9. 550/330 Sales Tax 12
6.10. Transfer Taxes 12
6.11. Payment of Taxes out of the Purchase Price 14
6.12. Payment of Management Contract Termination Fees 14
6.13. Certain Leasing Costs. 14
7. Closing Conditions; Closing Documents 15
7.1. Closing Conditions. 15
7.2. Items to be Delivered by 550/330 Seller 17
7.3. Items to be Delivered by 2 Park Sellers 21
7.4. Items to be Delivered by Purchaser to 550/330
Seller 21
7.5. Items to be Delivered by Purchaser to 2 Park
Sellers 22
7.6. Estoppel Letters 23
7.7. Litigation 24
7.8. Security Deposits 24
7.9. Miscellaneous Covenants of Purchaser 25
8. Inspection; Title Insurance, UCC Search and Survey;
Violations 25
8.1. Property Condition and Inspection 25
8.2. Designation of Title Company 26
8.3. 550/330 Seller's Title Affidavit 26
8.4. Certain Costs 26
8.5. Designation of Defects 27
8.6. Removal of Defects 29
8.7. Assignment of Existing Mamaroneck Mortgage 29
8.8. 550/330 Violations. 30
9. Merger; Representations 31
9.1. Merger 31
9.2. No Implied Representations 32
9.3. Certain Conditions Relating to ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 33
9.4. Certain Conditions Relating to ▇ ▇▇▇▇ ▇▇▇▇▇▇ 36
9.5. Purchaser Representations 37
9.6. Certain Representations of each 2 Park Seller 37
10. Broker 37
11. Condemnation and Destruction 38
11.1. Condemnation of Property 38
11.2. Destruction 39
11.3. Rejection of Uniform Act 40
12. Operation during the Contract Period 41
12.1. 550/330 Space Leases 41
12.2. Ground Leases 42
12.3. 550/330 Third-Party Contracts 42
12.4. 550/330 Personal Property 42
12.5. 550/330 Contract Rights 42
12.6. 550/330 Tax Assessment Proceedings 42
12.7. 2 Park Partnership. 42
13. Notices 43
14. Defaults 45
14.1. Purchaser's Default 45
14.2. Sellers' Default 45
14.3. Limitation of Liability with Respect to ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ 46
15. Additional Provisions 46
15.1. Entire Agreement 46
15.2. Amendments 46
15.3. Waiver 46
15.4. Successors and Assigns 46
15.5. Partial Invalidity 46
15.6. Governing Law 46
15.7. Assignment 46
15.8. Paragraph Headings 47
15.9. No Recording or Notice of Pendency 47
15.10. Further Assurances 47
15.11. Counterparts 47
16. Letter of Credit. 47
Exhibits
Exhibits
A 550 Ground Lease
B 550 Land
C 600 Ground Lease
D 600 Land
E 330 Ground Lease
F 330 Land
G-1 Existing Title Exceptions (550 Land)
G-2 Existing Title Exceptions (600 Land)
G-3 Existing Title Exceptions (330 Land)
H-1 Assignment and Assumption of 550 Ground Lease
H-2 Assignment and Assumption of 600 Ground Lease
H-3 Assignment and Assumption of 330 Ground Lease
I-1 Form of ▇▇▇▇ of Sale for the Mamaroneck Personal
Property
I-2 Form of ▇▇▇▇ of Sale for the 330 Personal Property
J-1 Assignment and Assumption of Mamaroneck Contract
Rights and Mamaroneck Third-Party Contracts
J-2 Assignment and Assumption of 330 Contract Rights and
330 Third-Party Contracts
K-1 Assignment and Assumption of Mamaroneck Space Leases
K-2 Assignment and Assumption of 330 Space Leases
L-1 Assignment of Mamaroneck Space Lease Security
Deposits
L-2 Assignment of 330 Space Lease Security Deposits
M Assignment and Assumption of 2 Park Interests
N Form of Tenant Estoppel Letter
O-1 Form of Mamaroneck Ground Lease Estoppel Letter
O-2 Form of 330 Ground Lease Estoppel Letter
P Intentionally Omitted
Q Intentionally Omitted
R 2 Park Class Action
S Existing Mamaroneck Mortgage
T Existing Violations
T-2 Intentionally Omitted
U 2 Park Land
V-1 Mamaroneck Ground Leases
V-2 330 Ground Lease
W-1 Mamaroneck Rent Roll (List of Mamaroneck Space
Leases)
W-2 330 Rent Roll (List of 330 Space Leases)
X-1 Mamaroneck Space Lease Defaults
X-2 330 Space Lease Defaults
Y-1 Intentionally Omitted
Y-2 Intentionally Omitted
Z-1 Mamaroneck Space Lease Offsets
Z-2 330 Space Lease Offsets
AA-1 Mamaroneck Space Lease Broker's Commissions Due
AA-2 330 Space Lease Broker's Commissions Due
BB-1 List of Mamaroneck Security Deposits and Letters of
Credit
BB-2 List of 330 Security Deposits and Letters of Credit
CC-1 List of Mamaroneck Service Contracts, Brokerage
Agreements, and Union Contracts
CC-2 List of 330 Service Contracts, Brokerage Agreements,
and Union Contracts
DD-1 List of Mamaroneck Union Employees
DD-2 List of 330 Union Employees
EE-1 Mamaroneck Casualty Insurance Policy
EE-2 330 Casualty Insurance Policy
Index of Defined Terms
Page
2 Park .5% Purchase Price 6
2 Park 99.5% Purchase Price 6
2 Park Improvements 32
2 Park Interests 5
2 Park Real Estate and Related Interests 32
2 Park Seller Shares 10
2 Park Sellers 1
330 Condition Failure Costs 16
330 Conditions 16
330 Contract Rights 4
330 Fixtures 2
330 Ground Lease 2
330 Improvements 2
330 Office Property 3
330 Permitted Exceptions 7
330 Personal Property 3
330 Property 5
330 Purchase Price 6
330 Real Estate 2
330 Security Deposits 4
330 Space Leases 3
330 Tenant 11
330 Third-Party Contracts 35
330 Title Cost 28
330 Violations Cost 31
550 Ground Lease 2
550/330 Estoppel Letters 23
550/330 Improvements 2
550/330 Insurance Policies 40
550/330 Proceeds 40
550/330 Property 2
550/330 Purchase Price 6
550/330 Real Estate 2
550/330 Security Deposits 4
550/330 Seller 1
550/330 Space Leases 3
550/330 Taking 38
550/330 Tenant Estoppel Letter 23
550/330 Tenants 11
550/330 Third-Party Contracts 5
600 Ground Lease 2
Available 330 Materiality Amount 16
Available Mamaroneck Materiality Amount 16
Average Share Price 6
City Tax Share 13
City Transfer Tax 13
Closing 8
Closing Date 8
Contract Period 41
Current Survey 25
Defect 27
Existing Mamaroneck Mortgage 29
Existing Mamaroneck Mortgagee 29
Ground Lease Estoppel Letter 23
Inspection Period 25
▇▇▇▇▇▇ Affiliate 1
Letter of Credit 5
Mamaroneck Broker 37
Mamaroneck Condition Failure Costs 16
Mamaroneck Conditions 16
Mamaroneck Contract Rights 4
Mamaroneck Deed 17
Mamaroneck Fixtures 2
Mamaroneck Ground Leases 2
Mamaroneck Improvements 2
Mamaroneck Land 2
Mamaroneck Office Property 3
Mamaroneck Permitted Exceptions 7
Mamaroneck Personal Property 3
Mamaroneck Property 4
Mamaroneck Purchase Price 6
Mamaroneck Real Estate 2
Mamaroneck Security Deposits 4
Mamaroneck Space Leases 3
Mamaroneck Survey 8
Mamaroneck Tenant 11
Mamaroneck Third-Party Contracts 35
Mamaroneck Title Cost 27
Mamaroneck Violations Cost 30
Material Casualty 40
Material Portion 39
New Space Lease Actions 41
Notices 43
Partnership 1, 4
Purchaser 1
Qualified Bank 5
Sellers 1
Settlement Agreement 24
Shares 7
State Tax Share 13
State Transfer Tax 12
Title Commitments 26
Title Company 26
Two Park Partnership 1
UCC Search 26
Violations 30
SALE-PURCHASE AGREEMENT
THIS SALE-PURCHASE AGREEMENT, dated as of the 23rd day
of September, 1998, by and among MENDIK REAL ESTATE LIMITED
PARTNERSHIP ("550/330 Seller"), a New York limited partnership,
having an office c/o Mendik RELP Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, NY REAL ESTATE SERVICES 1 INC. (f/k/a
▇▇▇▇▇▇ Real Estate Services XV, Inc.) ("Lehman Affiliate"), a
Delaware corporation, having an office c/▇ ▇▇▇▇▇▇ Brothers, Inc.,
3 World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, MENDIK RELP
CORPORATION (f/k/a Mendik Corporation), a New York corporation,
having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a resident of the State of New York, having an
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (550/330
Seller, Lehman Affiliate, Mendik RELP Corporation, and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ being referred to collectively herein as "2 Park Sellers";
550/330 Seller and 2 Park Sellers being referred to collectively
herein as "Sellers"), VORNADO REALTY L.P., a Delaware limited
partnership, having an office c/o Vornado Realty Trust, Park ▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and VORNADO
REALTY TRUST ("VRT"), a Maryland real estate investment trust,
having an office at Park ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ (Vornado Realty L.P. and VRT being collectively
referred to herein as "Purchaser", except that (i) references in
this Agreement to the purchaser of the 2 Park Interests shall be
deemed to be references to VRT and not to Vornado Realty L.P.,
and (ii) references in this Agreement to the purchaser of the
550/330 Property shall be deemed to be references to Vornado
Realty L.P. and not to VRT).
W I T N E S S E T H :
WHEREAS, 550/330 Seller owns certain leasehold estates
in, and certain related property regarding, (i) the real property
known as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ and ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, and (ii) the real property
known as ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇; and
WHEREAS, pursuant to an Agreement and Certificate of
Limited Partnership, dated as of December 1, 1986, as amended by
a First Amended and Restated Agreement and Certificate of Limited
Partnership, dated September 17, 1987, 550/330 Seller, NY Real
Estate Services 1 Inc., and Mendik RELP Corporation, as general
partners, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as the sole limited partner,
formed M/H Two Park Associates, a New York limited partnership
(the "Partnership"); and
WHEREAS, pursuant to the Partnership Agreement of Two
Park Company, dated as of December 18, 1986, the Partnership and
B&B Park Avenue L.P. formed Two Park Company (the "Two Park
Partnership"), a New York general partnership, to own certain
interests in the real property known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ and related property; and
WHEREAS, Sellers desire to sell to Purchaser, and
Purchaser desires to purchase from Sellers, (i) 550/330 Seller's
interest as lessee under the ground leases for ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ and ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, and 550/330 Seller's ownership
interest in certain related property, and (ii) the entire
interest of the 2 Park Sellers in the Partnership, in each case
on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and
other good and valuable consideration, the mutual receipt and
legal sufficiency of which the parties hereto hereby acknowledge,
Sellers and Purchaser hereby agree as follows:
1. Sale of the 550/330 Property by 550/330 Seller to
Purchaser. Subject to the terms and conditions set forth in this
Agreement, 550/330 Seller hereby agrees to sell and convey to
Purchaser, and Purchaser hereby agrees to purchase and acquire
from 550/330 Seller, the property described below (collectively,
the "550/330 Property"):
1.1. Ground Leases.
A. All of 550/330 Seller's right, title, and interest
as lessee in and to (i) the Lease described on Exhibit "A"
attached hereto and made a part hereof (the "550 Ground Lease"),
which relates to the parcel of land described on Exhibit "B"
attached hereto and made a part hereof, and (ii) the Lease
described on Exhibit "C" attached hereto and made a part hereof
(the "600 Ground Lease"), which relates to the parcel of land
described on Exhibit "D" attached hereto and made a part hereof,
subject, however, in either case, to the Mamaroneck Permitted
Exceptions (the 550 Ground Lease and the 600 Ground Lease being
referred to collectively herein as the "Mamaroneck Ground
Leases"; the parcel of land described on Exhibit "B" and the
parcel of land described on Exhibit "D" being referred to
collectively herein as the "Mamaroneck Land");
B. All of 550/330 Seller's right, title, and interest
as lessee in and to the Lease described on Exhibit "E" attached
hereto and made a part hereof (the "330 Ground Lease"), which
relates to the parcel of land described on Exhibit "F" attached
hereto and made a part hereof and the buildings and improvements
situated thereon (the "330 Improvements"), subject, however, to
the 330 Permitted Exceptions (the 330 Improvements and the parcel
of land described on Exhibit "F" being referred to collectively
herein as the "330 Real Estate");
1.2. Mamaroneck Improvements. All of 550/330 Seller's
right, title, and interest in and to the buildings and
improvements built on or attached to the Mamaroneck Land (the
"Mamaroneck Improvements"; the Mamaroneck Improvements and the
330 Improvements being referred to herein collectively as the
"550/330 Improvements"), subject, however, to the Mamaroneck
Permitted Exceptions (the Mamaroneck Land and the Mamaroneck
Improvements being referred to collectively herein as the
"Mamaroneck Real Estate"; the Mamaroneck Real Estate and the 330
Real Estate being referred to collectively herein as the "550/330
Real Estate");
1.3. Fixtures.
A. All of 550/330 Seller's right, title, and interest
in and to the fixtures built on or attached to the Mamaroneck
Real Estate (the "Mamaroneck Fixtures"), subject, however, to the
Mamaroneck Permitted Exceptions;
B. All of 550/330 Seller's right, title, and interest
in and to the fixtures built on or attached to the 330 Real
Estate (the "330 Fixtures"), subject, however, to the 330
Permitted Exceptions;
1.4. Personal Property.
A. Subject to Section 12.4 hereof, all of 550/330
Seller's right, title, and interest in and to the equipment,
furniture, machinery, furnishings, tools, spare parts, supplies
and other articles of personal property located on the Mamaroneck
Real Estate (the "Mamaroneck Personal Property"), subject,
however, to the Mamaroneck Permitted Exceptions (the items
described in Section 1.2, Section 1.3(A), and this Section 1.4(A)
being collectively referred to herein as the "Mamaroneck Office
Property");
B. Subject to Section 12.4 hereof, all of 550/330
Seller's right, title, and interest in and to the equipment,
furniture, machinery, furnishings, tools, spare parts, supplies
and other articles of personal property located on the 330 Real
Estate (the "330 Personal Property"), subject, however, to the
330 Permitted Exceptions (the 330 Improvements and the items
described in Section 1.3(B) and this Section 1.4(B) being
collectively referred to herein as the "330 Office Property");
1.5. Other Property.
A. All of 550/330 Seller's right, title and interest,
if any, in and to any easements, rights of way, privileges,
servitudes, appurtenances and other rights running with either
550/330 Seller's interest in the Mamaroneck Improvements or the
leasehold estates created by the Mamaroneck Ground Leases,
subject, however, to the Mamaroneck Permitted Exceptions;
B. All of 550/330 Seller's right, title and interest,
if any, in and to any easements, rights of way, privileges,
servitudes, appurtenances and other rights running with the
leasehold estate created by the 330 Ground Lease, subject,
however, to the 330 Permitted Exceptions;
1.6. Space Leases.
A. All of 550/330 Seller's right, title and
interest under all leases or other agreements for the present or
future use or occupancy of any space in the Mamaroneck
Improvements, in respect of which 550/330 Seller holds the
interest of the lessor thereunder (collectively, the "Mamaroneck
Space Leases"), that are in effect on the Closing Date;
B. All of 550/330 Seller's right, title and interest
under all leases or other agreements for the present or future
use or occupancy of any space in the 330 Improvements, in respect
of which 550/330 Seller holds the interest of the lessor
thereunder (collectively, the "330 Space Leases"), that are in
effect on the Closing Date (the Mamaroneck Space Leases and the
330 Space Leases being referred to collectively herein as the
"550/330 Space Leases");
1.7. Security Deposits.
A. All of 550/330 Seller's right, title and interest
to all money, negotiable instruments, and other security
deposited by Mamaroneck Tenants under the Mamaroneck Space Leases
to secure performance of Mamaroneck Tenants' obligations
thereunder, to the extent such security remains in 550/330
Seller's possession on the Closing Date, with all accrued
interest thereon (to the extent that the applicable Mamaroneck
Space Leases require such interest to accrue for the benefit of
Mamaroneck Tenants) (collectively, the "Mamaroneck Security
Deposits");
B. All of 550/330 Seller's right, title and interest
to all money, negotiable instruments, and other security
deposited by 330 Tenants under the 330 Space Leases to secure
performance of 330 Tenants' obligations thereunder, to the extent
such security remains in 550/330 Seller's possession on the
Closing Date, with all accrued interest thereon (to the extent
that the applicable 330 Space Leases require such interest to
accrue for the benefit of 330 Tenants) (collectively, the "330
Security Deposits"; the Mamaroneck Security Deposits and the 330
Security Deposits being referred to collectively herein as the
"550/330 Security Deposits");
1.8. Contract Rights.
A. All of 550/330 Seller's right, title and interest
in and to (i) any assignable guaranties, warranties,
certificates, rights and privileges relating solely to the
Mamaroneck Office Property, to the extent in effect on the
Closing Date, (ii) any assignable licenses and permits relating
solely to the Mamaroneck Office Property, to the extent in effect
on the Closing Date, (iii) any deposits made by 550/330 Seller
(or 550/330 Seller's predecessors-in-interest) with utility
companies relating solely to the Mamaroneck Office Property, to
the extent apportionment is made therefor under Section 5 hereof,
(iv) any plans or specifications relating to the Mamaroneck
Office Property, to the extent in 550/330 Seller's possession at
the Closing Date, and (v) any assignable trademarks, tradenames,
logos, or similar property relating to the Mamaroneck Office
Property (the items described in clauses (i), (ii), (iii), (iv),
and (v) above being collectively referred to herein as the
"Mamaroneck Contract Rights");
B. All of 550/330 Seller's right, title and interest
in and to (i) any assignable guaranties, warranties,
certificates, rights and privileges relating solely to the 330
Office Property, to the extent in effect on the Closing Date,
(ii) any assignable licenses and permits relating solely to the
330 Office Property, to the extent in effect on the Closing Date,
(iii) any deposits made by 550/330 Seller (or 550/330 Seller's
predecessors-in-interest) with utility companies relating solely
to the 330 Office Property, to the extent apportionment is made
therefor under Section 5 hereof, (iv) any plans or specifications
relating to the 330 Office Property, to the extent in 550/330
Seller's possession at the Closing Date, and (v) any assignable
trademarks, tradenames, logos, or similar property relating to
the 330 Office Property (the items described in clauses (i),
(ii), (iii), (iv) and (v) above being collectively referred to
herein as the "330 Contract Rights"); and
1.9. Third-Party Contracts.
A. All of 550/330 Seller's right, title and interest
in and to any Mamaroneck Third-Party Contracts that are in effect
on the Closing Date (the items described in Sections 1.1(A), 1.2,
1.3(A), 1.4(A), 1.5(A), 1.6(A), 1.7(A), 1.8(A), and 550/330
Seller's interest in such Mamaroneck Third-Party Contracts being
collectively referred to herein as the "Mamaroneck Property");
B. All of 550/330 Seller's right, title and interest
in and to any 330 Third-Party Contracts that are in effect on the
Closing Date (the Mamaroneck Third-Party Contracts and the 330
Third-Party Contracts being referred to collectively herein as
the "550/330 Third-Party Contracts"; the items described in
Sections 1.1(B), 1.3(B), 1.4(B), 1.5(B), 1.6(B), 1.7(B), 1.8(B),
and 550/330 Seller's interest in such 330 Third-Party Contracts
being referred to collectively herein as the "330 Property").
2. Sale by 2 Park Sellers to Purchaser. Subject to
the terms and conditions set forth in this Agreement, each 2 Park
Seller hereby agrees to sell and convey to Purchaser, and
Purchaser hereby agrees to purchase and acquire from each 2 Park
Seller, all of such 2 Park Seller's right, title, and interest in
and to the Partnership (the right, title, and interest of all of
the 2 Park Sellers in and to the Partnership being collectively
referred to herein as the "2 Park Interests").
3. Purchase Price.
3.1. Letter of Credit as Security. Subject to the
provisions of this Section 3.1 and Section 16 hereof, Purchaser
shall deliver to Sellers, on or prior to the date hereof (as to
which date time shall be of the essence), a "clean" unconditional
and irrevocable standby letter of credit (the "Letter of Credit")
for the account of Purchasers, naming Sellers as the
beneficiaries thereunder, for a term of not less than six (6)
months, issued by and drawn on a commercial bank that is a member
of the New York Clearinghouse Association (a "Qualified Bank"),
in the amount of Five Million Dollars ($5,000,000). If the Final
Date (as such term is defined in the Settlement Agreement) does
not occur on or prior to October 23, 1998, then Purchaser shall
have the right to reduce the aforesaid amount of the Letter of
Credit to Two Million Five Hundred Thousand Dollars ($2,500,000)
until the fifth (5th) day after the date when Purchaser receives
notice of the occurrence of the Final Date. If (x) Purchaser so
elects to reduce the amount of the Letter of Credit, and (y)
Purchaser fails to increase the amount of the Letter of Credit to
Five Million Dollars ($5,000,000) on or prior to the fifth (5th)
day after the date when Purchaser receives notice of the
occurrence of the Final Date, then Purchaser shall be deemed to
be in material default in respect of Purchaser's obligations
hereunder. If (x) Purchaser so elects to reduce the amount of
the Letter of Credit hereunder (and has not thereafter increased
the amount of the Letter of Credit to Five Million Dollars
($5,000,000)), (y) Purchaser defaults hereunder, and (z) Sellers
elect to terminate this Agreement pursuant to Section 14.1 hereof
by reason of such default, then Purchaser shall pay to Sellers,
simultaneously with such termination, an amount equal to Two
Million Five Hundred Thousand Dollars ($2,500,000), which Sellers
shall have the right to retain (in addition to the other amounts
to which Sellers are entitled under Section 14.1 hereof).
Sellers acknowledge that ▇▇▇▇▇▇ Affiliate, acting alone, shall
have the right to draw upon the Letter of Credit to the extent
that Sellers have the right to do so under this Agreement, in
which case ▇▇▇▇▇▇ Affiliate shall pay to the other Sellers the
proceeds of the Letter of Credit in accordance with the other
Sellers' respective shares therein. If ▇▇▇▇▇▇ Affiliate so draws
upon the Letter of Credit, then ▇▇▇▇▇▇ Affiliate shall indemnify
the other Sellers, and hold the other Sellers harmless, from and
against any and all liability, damage, loss, cost or expense
(including, without limitation, reasonable attorneys' fees and
expenses) that are incurred by the other Sellers to the extent
deriving from ▇▇▇▇▇▇ Affiliate's drawing upon the Letter of
Credit in violation of this Agreement.
3.2. 550/330 Purchase Price. The purchase price for
the Mamaroneck Property is Twenty-One Million Five Hundred
Thousand Dollars ($21,500,000) (the "Mamaroneck Purchase Price")
and for the 330 Property is Eight Million Five Hundred Thousand
Dollars ($8,500,000) (the "330 Purchase Price"), with the
aggregate purchase price for the 550/330 Property being Thirty
Million Dollars ($30,000,000) (the "550/330 Purchase Price"),
subject, in each case, to adjustment for the apportionments
described in Section 6 hereof, which amount shall be paid at the
Closing by wire transfer of immediately available federal funds
to a bank account designated by 550/330 Seller. 550/330 Seller
shall provide Purchaser with wiring instructions for such wire
transfer not later than the second (2nd) business day before the
Closing.
3.3. 2 Park Purchase Price.
A. The purchase price for the 2 Park Interests is
Thirty-Four Million Eight Hundred Thousand Dollars ($34,800,000)
payable as provided in this Section 3.3(A).
(i) One Hundred Seventy-Four Thousand Dollars ($174,000) of
such purchase price (the "2 Park .5% Purchase Price")
shall be payable in cash.
(ii) Thirty-Four Million Six Hundred Twenty-Six Thousand
Dollars ($34,626,000) of such purchase price (the "2
Park 99.5% Purchase Price") shall be payable in any
combination of cash and Shares as determined by
Purchaser, it being understood that if Purchaser so
elects to pay all or any portion of the 2 Park 99.5%
Purchase Price in Shares, then (A) each Share shall
have a value equal to the Average Share Price, (B) no
fractional Shares shall be utilized, (C) the number of
Shares utilized shall not exceed one percent of the
total number of Shares outstanding as shown by VRT's
most recent Form 10-Q or 10-K as of the Closing Date,
and (D) the number of Shares that Purchaser so elects
to deliver on account of the 2 Park 99.5% Purchase
Price shall not be less than the number of Shares that
the Class Member Limited Partners (as such term is
defined in the Settlement Agreement) elect to receive
in accordance with the provisions of the Settlement
Agreement (except that the number of Shares described
in this clause (D) shall not exceed one percent (1%) of
the total number of Shares outstanding as shown by
VRT's most recent Form 10-Q or 10-K as of the Closing
Date).
At the Closing, Purchaser shall deliver (i) the Shares and the
cash constituting the 2 Park 99.5% Purchase Price to a
liquidating trust (for the benefit of the limited partners of
550/330 Seller) designated by 550/330 Seller not later than the
second (2nd) business day before the Closing, and (ii) the cash
constituting the 2 Park .5% Purchase Price to the 2 Park Sellers
(other than 550/330 Seller) by wire transfer of immediately
available federal funds to a bank account designated by such 2
Park Sellers not later than the second (2nd) business day before
the Closing.
B. For purposes of this Section 3.3, the following
terms shall have the meanings set forth below:
(i) "Average Share Price" shall mean the average
closing price of the Shares on the New York Stock Exchange for
the ten (10) trading days ending on the trading day immediately
prior to the Closing Date; and
(ii) "Shares" means fully transferable shares of
beneficial interest of VRT (other than such shares that are to be
distributed to affiliates of VRT).
4. Permitted Exceptions. The items of property
described in Section 1.1(A), Section 1.2, Section 1.3(A), and
Section 1.5(A) hereof shall be conveyed subject to the following
matters (collectively, the "Mamaroneck Permitted Exceptions") and
the items of property described in Section 1.1(B), Section
1.3(B), and Section 1.5(B) hereof shall be conveyed subject to
the following matters (collectively, the "330 Permitted
Exceptions"):
4.1. Legal Requirements. Zoning regulations and
ordinances, municipal building restrictions, environmental
quality or land use restrictions or regulations and all other
laws, ordinances, regulations, restrictions or other lawful
action of any duly constituted federal, state, city, local or
other governmental or public authority or other body having or
exercising jurisdiction over either (x) with regard to the
Mamaroneck Permitted Exceptions, the Mamaroneck Real Estate, or
(y) with regard to the 330 Permitted Exceptions, the 330 Real
Estate.
4.2. Existing Title Exceptions. (i) With regard to the
Mamaroneck Permitted Exceptions, the title exceptions set forth
in Exhibit "G-1" attached hereto and made a part hereof (with
respect to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇) and in
Exhibit "G-2" attached hereto and made a part hereof (with
respect to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇), and (ii)
with regard to the 330 Permitted Exceptions, the title exceptions
set forth in Exhibit "G-3" attached hereto and made a part
hereof.
4.3. Utility Easements. Utility and telephone company
rights and easements to maintain, install or remove poles, wires,
cables, pipes, boxes and other facilities and equipment in, over,
and upon (x) with regard to the Mamaroneck Permitted Exceptions,
the Mamaroneck Real Estate (provided that such rights and
easements are not violated by the Mamaroneck Improvements), or
(y) with regard to the 330 Permitted Exceptions, the 330 Real
Estate (provided that such rights and easements are not violated
by the 330 Improvements).
4.4. Roads. Easements that affect any land in the bed
of any street, road, or avenue in front of or adjoining either
(x) with regard to the Mamaroneck Permitted Exceptions, the
Mamaroneck Real Estate, or (y) with regard to the 330 Permitted
Exceptions, the 330 Real Estate.
4.5. Taxes. With regard to the Mamaroneck Permitted
Exceptions, liens for taxes, water charges, sewer rents and other
governmental charges affecting the Mamaroneck Real Estate that
are not delinquent and for which adjustment is made at the
Closing. With regard to the 330 Permitted Exceptions, liens for
taxes, water charges, sewer rents and other governmental charges
affecting the 330 Real Estate that are not delinquent and for
which adjustment is made at the Closing.
4.6. Water and Sewer. Rights and easements for the
installation, maintenance and replacement of water mains and
sewer lines and related facilities and equipment in, over and
upon (x) with regard to the Mamaroneck Permitted Exceptions, the
Mamaroneck Real Estate (provided that such rights and easements
are not violated by the Mamaroneck Improvements), or (y) with
regard to the 330 Permitted Exceptions, the 330 Real Estate
(provided that such rights and easements are not violated by the
330 Improvements).
4.7. Violations. Subject to Section 8.8 hereof, (x)
with regard to the Mamaroneck Permitted Exceptions, any
Violations affecting the Mamaroneck Real Estate, or (y) with
regard to the 330 Permitted Exceptions, any Violations affecting
the 330 Real Estate.
4.8. Survey. With regard to the Mamaroneck Permitted
Exceptions, any state of facts shown on a survey made by the
▇▇▇▇▇▇ Company, dated May 14, 1998 (the "Mamaroneck Survey"), and
any other state of facts an accurate survey or personal
inspection of the Mamaroneck Real Estate would disclose, provided
that such other state of facts does not prohibit the use and
occupancy of the Mamaroneck Real Estate as currently used and
occupied. With regard to the 330 Permitted Exceptions, any state
of facts shown on a survey made by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, dated
February 20, 1964, and last updated May 13, 1998 by ▇▇▇▇▇▇▇
Surveying, P.C. (the "330 Survey"), and any other state of facts
an accurate survey or personal inspection of the 330 Real Estate
would disclose, provided that such other state of facts does not
prohibit the use and occupancy of the 330 Real Estate as
currently used and occupied.
4.9. Space Leases. With regard to the Mamaroneck
Permitted Exceptions, rights of Mamaroneck Tenants under the
Mamaroneck Space Leases in effect on the Closing Date, as tenants
only. With regard to the 330 Permitted Exceptions, rights of 330
Tenants under the 330 Space Leases in effect on the Closing Date,
as tenants only.
4.10. Other Items. Any other matters or
encumbrances subject to which Purchaser is required to accept
title to the Mamaroneck Property and/or 330 Property pursuant to
this Agreement.
5. Closing Date. Subject to the terms of this
Section 5, the Closing of the sale of the Mamaroneck Property,
330 Property, and 2 Park Interests (the "Closing") shall occur at
10:00 A.M. on the thirtieth (30th) day after the Final Date (as
defined in the Settlement Agreement), or, if such thirtieth
(30th) day is not a business day, on the next business day, at
the offices of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, or, at Purchaser's option, at the offices of (x) the
lending institution providing financing for Purchaser's
consummation of the transactions contemplated hereby, or (y) such
lending institution's attorneys, provided that in either case
such offices are located in the Borough of Manhattan (the date
when the Closing occurs being referred to herein as the "Closing
Date").
6. Apportionments and Payments.
6.1. 550/330 Property Apportionment. Subject to the
terms of this Section 6, the following items, without
duplication, are to be apportioned between 550/330 Seller and
Purchaser with respect to the 550/330 Property as of 11:59 p.m.
on the calendar day immediately preceding the Closing Date and
the net amount thereof shall either be (x) paid by Purchaser to
550/330 Seller by wire transfer of immediately available federal
funds to a bank account designated by 550/330 Seller, or (y)
credited by 550/330 Seller against the 550/330 Purchase Price, in
either case at the Closing:
A. real property taxes (to the extent not delinquent
as of the Closing Date);
B. water rates and charges (to the extent not
delinquent as of the Closing Date);
C. sewer taxes and rents (to the extent not
delinquent as of the Closing Date);
D. fuel, steam and all other utilities (including,
without limitation, any deposits made in respect
thereof);
E. rents and charges under the Mamaroneck Space
Leases in effect on the Closing Date (if, as and
when collected);
F. rents and charges under the 330 Space Leases in
effect on the Closing Date (if, as and when
collected);
G. rents and charges under the Mamaroneck Ground
Leases;
H. rents and charges under the 330 Ground Lease;
I. charges (i) under the 330 Third-Party Contracts
that are in effect on the Closing Date, and (ii)
pursuant to any of the 330 Contract Rights;
J. charges (i) under the Mamaroneck Third-Party
Contracts that are in effect on the Closing Date,
and (ii) pursuant to any of the Mamaroneck
Contract Rights;
K. payroll, accrued sick leave, vacation leave, and
pension obligations, in each case for union
employees, and
L. all other items that reasonably require
apportionment in accordance with local custom and
practice to effectuate the transactions
contemplated hereby.
550/330 Seller and Purchaser shall adjust any apportionments made
under this Section 6 after the Closing to account for errors or
incorrect estimates made as of the Closing Date (it being agreed
that the parties' aforesaid agreement to make such adjustments
shall survive the Closing for a period of twelve (12) months).
6.2. 2 Park Interests Apportionments. Subject to the
terms of this Section 6.2, at the Closing, 2 Park Sellers and
Purchaser shall calculate the apportionments that would have
applied under this Article 6 if the 2 Park Real Estate and
Related Interests (rather than the 2 Park Interests) were being
sold to Purchaser at the Closing, and an amount equal to sixty
percent (60%) of the net amount of such apportionments shall
either be (x) paid by Purchaser to 2 Park Sellers (in accordance
with the 2 Park Sellers' respective 2 Park Seller Shares) by wire
transfer of immediately available federal funds to a bank account
designated by 2 Park Sellers not less than two (2) business days
prior to the Closing Date, or (y) credited by 2 Park Sellers
against the 2 Park 99.5% Purchase Price (in the amount of ninety-
nine and five-tenths percent (99.5%) of such net amount of such
apportionments) and against the 2 Park .5% Purchase Price (in the
amount of five-tenths percent (0.5%) of such net amount of such
apportionments), as the case may be. For purposes of calculating
such apportionments, the references in the other provisions of
this Article 6 to (x) the Mamaroneck Property or the 330 Property
shall be deemed to be references to the 2 Park Real Estate and
Related Interests, and (y) 550/330 Seller shall be deemed to be
references to the seller of the 2 Park Real Estate and Related
Interests. 2 Park Sellers and Purchaser shall also make the
appropriate payments to each other after the Closing for sixty
percent (60%) of the amounts that would have been due under
Section 6.8 hereof after the Closing in respect of rents and
other fixed charges due to the owner of the 2 Park Real Estate
and Related Interests. For purposes of this Section 6.2, 2 Park
Sellers and Purchaser shall adjust for sixty percent (60%) of the
apportionments described in Section 6.13 in respect of space
leases in effect for premises located in the 2 Park Real Estate
and Related Interests. 2 Park Sellers and Purchaser shall adjust
any apportionments made under this Section 6.2 after the Closing
to account for errors or incorrect estimates made as of the
Closing Date (it being agreed that (i) the parties' aforesaid
agreement to make such adjustments shall survive the Closing for
a period of twelve (12) months, and (ii) each 2 Park Seller shall
be severally liable (and not jointly liable) for its respective
share of any such adjustment made after the Closing). In
addition, at the Closing, 2 Park Sellers shall be entitled to a
credit in calculating the aforesaid apportionment in an amount
equal to sixty percent (60%) of the cash reserve then being held
by the mortgagee that holds the mortgage encumbering the 2 Park
Property and Related Interests and sixty percent (60%) of any
cash then held in the Two Park Partnership's bank accounts. If,
as a result of any tax certiorari proceeding (whether commenced
by 2 Park Sellers, the Partnership, Purchaser, or otherwise), any
refund of real property taxes is made after the Closing Date for
the 2 Park Real Estate and Related Interests relating to the
period prior to the Closing Date, then Purchaser shall deliver
within thirty (30) days after the date of such refund and after
deducting therefrom (X) the out-of-pocket costs incurred by
Purchaser in obtaining such refund, and (Y) the portion of such
refund that is due and payable to third parties under leases or
other agreements for the use or occupancy of space in the 2 Park
Improvements, (i) to 550/330 Seller an amount equal to fifty-nine
and seven tenths percent (59.7%) of said refund, (ii) to ▇▇▇▇▇▇
Affiliate an amount equal to fifteen hundredths percent (.15%) of
said refund, (iii) to Mendik RELP Corporation, an amount equal to
one hundred forty-seven thousandths percent (.147%) of said
refund, and (iv) to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an amount equal to three
thousandths percent (.003%) of said refund (the aforesaid shares
of the 2 Park Sellers being referred to herein as the "2 Park
Seller Shares"), it being agreed that Purchaser's obligation to
so apply any such tax refunds shall survive the Closing.
6.3. Governmental Charges. If the Closing Date occurs
before the real property taxes, water rates and charges, or sewer
taxes and rents are finally fixed for the current fiscal year in
respect of the Mamaroneck Property and the 330 Property, then the
apportionments thereof made at the Closing shall be upon the
basis of the tax, water, or sewer rates for the preceding year
applied to the latest assessed valuation, but after the real
property taxes, water rates and charges, or sewer taxes and rents
(as the case may be) are finally fixed for the current fiscal
year, 550/330 Seller and Purchaser shall make a recalculation of
the apportionment thereof, and 550/330 Seller or Purchaser, as
the case may be, shall make an appropriate payment to its
counterparty based on such recalculation. The provisions of this
Section 6.3 shall survive the Closing for a period of twelve (12)
months.
6.4. Utility Meters. 550/330 Seller shall obtain
utility meter readings for the Mamaroneck Property and the 330
Property, in each case as of the date that is no more than thirty
(30) days before the Closing, and 550/330 Seller and Purchaser
shall use such meter readings as the basis for the apportionments
hereunder with respect to the applicable utilities.
6.5. Payment of Certain Items. The amount of any
unpaid taxes, assessments, water rates and charges, and sewer
taxes and rents which 550/330 Seller is obligated to pay and
discharge with respect to the 550/330 Property, with interest and
penalties thereon to the second (2nd) business day after the
Closing Date, may, at the option of 550/330 Seller, be allowed to
Purchaser out of the 550/330 Purchase Price, provided that
official bills therefor are furnished by 550/330 Seller at the
Closing. Purchaser, if request is made at least two (2) business
days prior to the Closing, agrees to provide 550/330 Seller at
the Closing with separate certified and/or official bank checks
drawn on, or by, a Qualified Bank, payable as directed by 550/330
Seller, in an aggregate amount not exceeding the 550/330 Purchase
Price, to facilitate the satisfaction of any of the aforesaid
taxes, assessments, water rates and charges, and sewer taxes and
rents. Without limiting the foregoing, 550/330 Seller is solely
obligated to pay and discharge any of the aforesaid taxes,
assessments, water rates and charges, and sewer taxes and rents
affecting the 550/330 Property that are delinquent as of the
Closing Date, subject to apportionment as herein provided.
6.6. Fuel Oil. Fuel oil, if any, owned by 550/330
Seller and located at the 550/330 Real Estate on the Closing Date
shall be adjusted at the cost thereof to 550/330 Seller on a
first in-first out basis. 550/330 Seller shall arrange for the
amount of fuel oil to be determined in writing by the fuel
company presently supplying fuel to the 550/330 Real Estate as of
a date which is not more than five (5) business days prior to the
Closing Date.
6.7. Assessments. If, on the Closing Date, the 550/330
Real Estate, or any part thereof, is affected by any real
property tax assessments, then 550/330 Seller shall pay such
assessments; provided, however, that if such assessments are
payable in installments, then 550/330 Seller shall pay such
installments only for the period prior to the Closing Date, and
Purchaser shall pay such installments for the period from and
after the Closing Date.
6.8. Rents and Charges Under Space Leases.
Aa On the Closing Date, 550/330 Seller shall furnish
Purchaser with a complete and correct schedule of all rents and
other fixed charges (including escalation rents) then due and
payable to 550/330 Seller by any occupant or user of any space in
the 550/330 Improvements under a 550/330 Space Lease that is then
in effect (such an occupant or user, including its successors and
assigns, that occupies space in the Mamaroneck Improvements being
referred to herein as a "Mamaroneck Tenant"; such an occupant or
user, including its successors and assigns, that occupies space
in the 330 Improvements being referred to herein as a "330
Tenant"; the Mamaroneck Tenants and the 330 Tenants being
collectively referred to herein as "550/330 Tenants").
Ba At the end of the current fiscal year with respect
to which escalation rents are payable under any 550/330 Space
Lease, there shall be a calculation of the portion of such
escalation rents to which 550/330 Seller is entitled, which
portion shall be equal to a fraction, the numerator of which is
the number of days in said fiscal year with respect to each such
550/330 Space Lease which elapsed prior to the Closing Date and
the denominator of which is the total number of days in said
fiscal year during which each such 550/330 Space Lease was in
effect, and Purchaser shall be entitled to the remaining portion
of such escalation rents. If 550/330 Seller has received
escalation rents with respect to any 550/330 Space Lease for said
fiscal year in excess of the amount to which it is entitled
pursuant hereto, then such excess shall be paid by 550/330 Seller
to Purchaser within ten (10) business days after such
calculation. If Purchaser has received escalation rents with
respect to any 550/330 Space Lease for said fiscal year in excess
of the amount to which it is entitled pursuant hereto, then such
excess shall be paid by Purchaser to 550/330 Seller within ten
(10) business days after the later of (a) Purchaser's receipt of
such excess of escalation rents, and (b) the date of such
calculation.
Ca From and after the Closing Date, all rent
collections with respect to the 550/330 Property shall be applied
in the following order (notwithstanding any designation by the
remitting Tenant): (i) first to the calendar month during which
the Closing Date occurs, (ii) then to any calendar month or
months following the calendar month in which the Closing Date
occurs, and (iii) finally to any arrears for the period before
the calendar month during which the Closing Date occurs. All
such unpaid rents and other charges collected from the 550/330
Tenants shall be remitted promptly to 550/330 Seller when
collected (to the extent that 550/330 Seller has the right
thereto). Nothing contained herein shall be construed to
prohibit 550/330 Seller from bringing or pursuing an action for
money damages (but 550/330 Seller may not ▇▇▇ to terminate the
applicable 550/330 Space Lease or evict the applicable 550/330
Tenant) against any 550/330 Tenant after the Closing by reason of
such 550/330 Tenant's failure to pay rent for any period prior to
the Closing Date (with the understanding that 550/330 Seller
shall apply any funds collected by reason of any such action in
accordance with the provisions of this Section 6.8(C)).
Da The provisions of this Section 6.8 shall survive
the Closing for a period of twelve (12) months.
6.9. 550/330 Sales Tax. Purchaser and 550/330 Seller
acknowledge that no portion of the 550/330 Purchase Price is
allocated to the Mamaroneck Personal Property or the 330 Personal
Property. Purchaser, however, shall pay any sales tax payable in
connection with the transaction contemplated hereby. The
provisions of this Section 6.9 shall survive the Closing.
6.10. Transfer Taxes.
Aa State Transfer Tax for the 550/330 Property. At
the Closing, 550/330 Seller shall deliver to Purchaser a
certified check drawn on, or an official check drawn by, a
Qualified Bank, and payable to the order of the appropriate
governmental authority (or the Title Company, if 550/330 Seller
so elects), for the amount of the New York State Real Property
Transfer Tax (the "State Transfer Tax") due in connection with
the sale of the Mamaroneck Real Estate and the 330 Real Estate,
and a return, duly signed and sworn to by 550/330 Seller;
Purchaser agrees to sign and swear to the return and to cause the
check and return to be delivered to the Title Company at the
Closing.
Ba City Transfer Tax for the 330 Property. At the
Closing, 550/330 Seller shall deliver to Purchaser a certified
check drawn on, or an official check drawn by, a Qualified Bank,
and payable to the order of the appropriate governmental
authority (or the Title Company, if 550/330 Seller so elects),
for the amount of the New York City Real Property Transfer Tax
(the "City Transfer Tax") due in connection with the sale of the
330 Real Estate, and a return, duly signed and sworn to by
Seller; Purchaser agrees to sign and swear to the return and to
cause the check and return to be delivered to the Title Company
at the Closing.
Ca State Transfer Tax for the 2 Park Interests. At
the Closing, each 2 Park Seller shall pay the State Transfer Tax
due in connection with the sale of such 2 Park Seller's interest
in the Partnership as contemplated hereby (calculated at the full
applicable rate without taking into account the fifty percent
(50%) reduction in State Transfer Tax available for transfers to
real estate investment trusts under N.Y. Real Property Law
1402(B)) (such State Transfer Tax payable by each 2 Park Seller
being referred to herein as such 2 Park Seller's "State Tax
Share"), and Purchaser simultaneously shall pay all of the
additional State Transfer Tax that may come due under the
aggregation rules because an affiliate of Purchaser acquired a
forty percent (40%) interest in the Two Park Partnership on April
15, 1997. Each 2 Park Seller shall deliver to Purchaser a
certified check drawn on, or an official check drawn by, a
Qualified Bank, and payable to the order of the appropriate
governmental authority (or the Title Company, if such 2 Park
Seller so elects), in an amount equal to such 2 Park Seller's
State Tax Share and a return, duly signed and sworn to by such 2
Park Seller; Purchaser agrees to sign and swear to the return and
to cause such 2 Park Seller's check and return, along with
Purchaser's aforesaid payment for the balance of the State
Transfer Tax due, to be delivered to the Title Company at the
Closing.
Da City Transfer Tax for the 2 Park Interests. At
the Closing, each 2 Park Seller shall pay the City Transfer Tax
due in connection with the sale of such 2 Park Seller's interest
in the Partnership (calculated at the full applicable rate
without taking into account the fifty percent (50%) reduction in
City Transfer Tax available for transfers to real estate
investment trusts) (such City Transfer Tax payable by each 2 Park
Seller being referred to herein as such 2 Park Seller's "City Tax
Share"), and Purchaser simultaneously shall pay all of the
additional City Transfer Tax that may come due under the
aggregation rules because an affiliate of Purchaser acquired a
forty percent (40%) interest in the Two Park Partnership on April
15, 1997. Each 2 Park Seller shall deliver to Purchaser a
certified check drawn on, or an official check drawn by, a
Qualified Bank, and payable to the order of the appropriate
governmental authority (or the Title Company, if such 2 Park
Seller so elects), in an amount equal to such 2 Park Seller's
City Tax Share and a return, duly signed and sworn to by such 2
Park Seller; Purchaser agrees to sign and swear to the return and
to cause such 2 Park Seller's check and return, along with
Purchaser's aforesaid payment for the balance of the City
Transfer Tax due, to be delivered to the Title Company at the
Closing.
Ea Indemnity. Each 2 Park Seller shall defend and
indemnify Purchaser, and hold Purchaser harmless, from and
against, any and all loss, damage, liability, cost or expense
(including, without limitation, reasonable attorneys' fees and
disbursements) that are incurred by Purchaser to the extent
deriving from such 2 Park Seller's failure to pay when due such 2
Park Seller's City Tax Share and such 2 Park Seller's State Tax
Share. 550/330 Seller shall defend and indemnify Purchaser, and
hold Purchaser harmless, from and against, any and all loss,
damage, liability cost or expense (including, without limitation,
reasonable attorneys' fees and disbursements) that are incurred
by Purchaser to the extent deriving from 550/330 Seller's failure
to pay when due the State Transfer Tax pursuant to Section
6.10(A) hereof or the City Transfer Tax pursuant to Section
6.10(B) hereof. Purchaser shall defend and indemnify each 2 Park
Seller, and hold each 2 Park Seller harmless, form and against,
any and all loss, damage, liability, cost or expense (including,
without limitation, reasonable attorneys' fees and disbursements)
that are incurred by such 2 Park Seller to the extent deriving
from Purchaser's failure to pay when due the State Transfer Tax
and the City Transfer Tax that may become payable under the
aggregation rules as contemplated by Section 6.10(C) hereof and
Section 6.10(D) hereof.
Fa The provisions of this Section 6.10 shall survive
the Closing.
6.11. Payment of Taxes out of the Purchase Price.
Notwithstanding the provisions of Section 6.10 hereof, 550/330
Seller shall have the option to grant to Purchaser at the Closing
a credit against the 550/330 Purchase Price, in an aggregate
amount equal to (a) the State Transfer Tax for the Mamaroneck
Property, and (b) the aggregate amount of the State Transfer Tax
and City Transfer Tax for the 330 Property. If such adjustment
is made by 550/330 Seller, then Purchaser shall pay the amount of
said State Transfer Taxes and City Transfer Taxes by delivery at
the Closing to the Title Company of such check or checks as would
be required from 550/330 Seller pursuant to Section 6.10 hereof.
6.12. Payment of Management Contract Termination
Fees. If a termination fee is payable upon the cancellation of
any management contract in effect on the Closing Date with an
affiliate of 550/330 Seller in respect of the Mamaroneck Office
Property or the 330 Office Property, 550/330 Seller may either
(x) allow the amount of such fee(s), if any, to Purchaser out of
the 550/330 Purchase Price, or (y) provide Purchaser at the
Closing with separate certified and/or official bank checks drawn
on, or by, a Qualified Bank, payable as directed by 550/330
Seller, in an aggregate amount not exceeding the aforesaid
termination fee(s), if any, so as to facilitate the satisfaction
thereof.
6.13. Certain Leasing Costs. At the Closing,
Purchaser shall receive a credit for any tenant improvement
allowances and leasing commissions, and for the cost of any work
being performed by or on behalf of 550/330 Seller at the 330
Office Property or the Mamaroneck Office Property, that in either
case are due and payable after the Closing in respect of 550/330
Space Leases that were executed and delivered on or prior to May
31, 1998; provided, however, that (I) Purchaser shall not receive
a credit for any such tenant improvement allowances or leasing
commissions, or for the cost of any such work, that derive from a
Mamaroneck Tenant or a 330 Tenant exercising, at any time from
and after June 1, 1998, any rights to lease additional space or
extend the term of the applicable 550/330 Space Lease, and (II)
Purchaser shall not receive a credit for any such leasing
commissions that are due and payable from and after the Closing
Date relating to the leases under which The City of New York is
tenant for certain space at the 330 Office Property. At the
Closing, 550/330 Seller shall receive a credit (x) for any tenant
improvement allowances and leasing commissions theretofore paid
by 550/330 Seller, and for the cost of any work theretofore
performed by or on behalf of 550/330 Seller at the 330 Office
Property or the Mamaroneck Office Property, in either case in
respect of 550/330 Space Leases that were executed and delivered
during the period from and after June 1, 1998, (y) for any tenant
improvement allowances and leasing commissions paid by 550/330
Seller, and for the cost of any work theretofore performed by or
on behalf of 550/330 Seller at the 330 Office Property or the
Mamaroneck Office Property, that in either case derive from a
Mamaroneck Tenant or a 330 Tenant exercising, at any time during
the period from and after June 1, 1998, any rights to lease
additional space or extend the term of the applicable 550/330
Space Lease, or (z) for leasing commissions that are due and
payable during the period from and after June 1, 1998 relating to
the leases under which The City of New York is tenant for certain
space at the 330 Office Property; provided, however, that the
credit to 550/330 Seller as described in clauses (x) and (y)
above shall be reduced to the extent that as of the Closing Date
such tenant improvement allowances and leasing commissions, and
the cost of any such work, have been amortized, in equal monthly
installments, over the period of time during which rent is
payable by the applicable Mamaroneck Tenant or 330 Tenant (X)
under 550/330 Space Leases executed and delivered during the
period from and after June 1, 1998, (Y) for such additional
space, or (Z) during such extension term, as the case may be.
Nothing contained in this Section 6.13 limits 550/330 Seller's
right to reimbursement for expenses incurred by 550/330 Seller
for New Space Lease Actions pursuant to Section 12.1 hereof.
70 Closing Conditions; Closing Documents.
7.1. Closing Conditions.
Aa The obligation of Sellers to consummate the
transactions described in this Agreement is subject to the
fulfillment prior to or at the Closing of each of the following
conditions (any of which may be waived by Sellers) (in addition
to any other conditions to Sellers' obligation to perform
hereunder that are expressly set forth herein):
(i) the representations made by Purchaser in
Section 9.5 hereof were true when made;
(ii) the representations made by Purchaser in
Section 9.5 hereof would be true if made on and as of the Closing
Date;
(iii) Purchaser has (a) paid the 550/330 Purchase
Price (together with or reduced by the net amount of any
apportionments and other amounts due to or from 550/330 Seller at
the Closing), (b) delivered the Shares and cash constituting the
2 Park 99.5% Purchase Price and the cash constituting the 2 Park
.5% Price (together with any other net amounts due to 2 Park
Sellers at the Closing), and (c) performed or complied with all
other obligations under this Agreement to be performed or
complied with by Purchaser at or prior to the Closing; and
(iv) (a) 550/330 Seller has received the
documents required to be delivered by Purchaser pursuant to
Section 7.4 hereof, and (b) 2 Park Sellers have received the
documents required to be delivered by Purchaser pursuant to
Section 7.5 hereof.
Ba The obligation of Purchaser to consummate the
transactions described in this Agreement is subject to the
fulfillment prior to or at the Closing of each of the following
conditions (any of which may be waived by Purchaser) (in addition
to any other conditions to Purchaser's obligation to perform
hereunder that are expressly set forth herein):
(i) subject to the last paragraph of this Section
7.1(B), the conditions described in Section 9.3 hereof and in
Section 9.4 hereof are satisfied;
(ii) subject to the last paragraph of this Section
7.1(B), the conditions described in clauses (A), (E), (H), (P),
(Q) and (R) of Section 9.3 hereof are satisfied as if determined
on and as of the Closing Date;
(iii) the representations made by 2 Park Sellers
in Section 9.6 hereof were true when made and would be true if
made on and as of the Closing Date;
(iv) Sellers have performed or complied with all
of the obligations under this Agreement to be performed or
complied with by Sellers prior to the Closing; and
(v) (a) Purchaser has received the documents
required to be delivered by 550/330 Seller pursuant to Section
7.2 hereof, and (b) Purchaser has received the documents required
to be delivered by 2 Park Sellers pursuant to Section 7.3 hereof.
Purchaser shall not have the right to refuse to consummate the
purchase of the Mamaroneck Property under Section 7.1(B)(i)
hereof or Section 7.1(B)(ii) hereof unless the actual costs that
Purchaser can reasonably expect to sustain by reason of the
failure of the Mamaroneck Conditions (the "Mamaroneck Condition
Failure Costs") exceeds an amount equal to the Available
Mamaroneck Materiality Amount. Purchaser shall not have the
right to refuse to consummate the purchase of the 330 Property
under Section 7.1(B)(i) hereof or Section 7.1(B)(ii) hereof
unless the actual costs that Purchaser can reasonably expect to
sustain by reason of the failure of the 330 Conditions (the "330
Condition Failure Costs") exceeds an amount equal to the
Available 330 Materiality Amount. As used herein, the term
"Mamaroneck Conditions" shall mean, collectively, the conditions
described in Section 9.3 hereof to the extent that such
conditions derive from facts or circumstances involving the
Mamaroneck Property. As used herein, the term "Available
Mamaroneck Materiality Amount" shall mean, at any particular
time, the excess, if any, of (i) Seven Hundred Sixteen Thousand
Six Hundred Sixty-Six and 67/100 Dollars ($716,666.67), over (ii)
the sum of (I) the Mamaroneck Condition Failure Costs that have
theretofore accrued, and (II) the Mamaroneck Title Costs that
have theretofore accrued. As used herein, the term "330
Conditions" shall mean, collectively, the conditions described in
Section 9.3 hereof to the extent that such conditions derive from
facts or circumstances involving the 330 Property. As used
herein, the term "Available 330 Materiality Amount" shall mean,
at any particular time, the excess, if any, of (i) Two Hundred
Eighty-Three Thousand Three Hundred Thirty-Three and 33/100
Dollars ($283,333.33), over (ii) the sum of (I) the 330 Condition
Failure Costs that have theretofore accrued, and (II) the 330
Title Costs that have theretofore accrued. If Purchaser
exercises Purchaser's rights under this Section 7.1(B) to refuse
to consummate its purchase of the Mamaroneck Property, then
Purchaser shall also have the right, simultaneously therewith, to
terminate this Agreement in its entirety. If Purchaser exercises
Purchaser's rights under this Section 7.1(B) to refuse to
consummate its purchase of the 330 Property, then Purchaser shall
also have the right, simultaneously therewith, to terminate this
Agreement in its entirety. Purchaser's exercising Purchaser's
right to refuse to consummate its purchase of the Mamaroneck
Property pursuant to this Section 7.1(B) as aforesaid (without
Purchaser's simultaneously terminating this Agreement as
aforesaid) shall not affect Seller's or Purchaser's obligations
hereunder with respect to the 2 Park Interest or the 330 Property
nor entitle Purchaser to the return of the Letter of Credit as a
result thereof. Purchaser's exercising Purchaser's right to
refuse to consummate its purchase of the 330 Property pursuant to
this Section 7.1(B) as aforesaid (without Purchaser's
simultaneously terminating this Agreement as aforesaid) shall not
affect Seller's or Purchaser's obligations hereunder with respect
to the 2 Park Interest or the Mamaroneck Property nor entitle
Purchaser to the return of the Letter of Credit as a result
thereof. If this Agreement is terminated in its entirety, as
aforesaid, then Purchaser shall be entitled to the return of the
Letter of Credit, and thereupon, no party shall have thereafter
any continuing rights, duties or obligations hereunder (except
that the parties' respective obligations under Section 10 and
Section 15.9 hereof shall survive said termination).
7.2. Items to be Delivered by 550/330 Seller. At the
Closing, and upon payment by Purchaser of the 550/330 Purchase
Price, 550/330 Seller shall deliver, or shall cause to be
delivered, to Purchaser:
Aa With respect to the Mamaroneck Property:
(i) an Assignment and Assumption of 550 Ground
Lease, in the form of Exhibit "H-1" attached hereto and made a
part hereof, and an Assignment and Assumption of 600 Ground
Lease, in the form of Exhibit "H-2" attached hereto and made a
part hereof, each (a) duly executed and acknowledged by 550/330
Seller so as to assign to Purchaser the interest of the lessee
under the Mamaroneck Ground Leases, subject only to the
Mamaroneck Permitted Exceptions, and (b) containing the covenant
required by subdivision 5 of Section 13 of the Lien Law;
(ii) a bargain and sale deed without covenants
against grantor's acts (the "Mamaroneck Deed"), in proper
statutory form for recording, duly executed and acknowledged by
550/330 Seller so as to convey to Purchaser the interest of
550/330 Seller in and to the Mamaroneck Improvements, subject
only to the Permitted Exceptions, and which shall contain the
covenant required by subdivision 5 of Section 13 of the Lien Law;
(iii) a ▇▇▇▇ of sale, in the form of Exhibit "I-1"
attached hereto and made a part hereof, duly executed by 550/330
Seller so as to convey to Purchaser the Mamaroneck Personal
Property existing as of the Closing Date free and clear of all
liens and encumbrances (other than the lien of the Mamaroneck
Existing Mortgage, if the Mamaroneck Existing Mortgage is
assigned to Purchaser's lender as contemplated by Section 8.6
hereof);
(iv) an Assignment and Assumption of Mamaroneck
Contract Rights and Mamaroneck Third-Party Contracts, in the form
of Exhibit "J-1" attached hereto and made a part hereof, duly
executed by 550/330 Seller so as to assign to Purchaser the
interest of 550/330 Seller in and to the Mamaroneck Contract
Rights and Mamaroneck Third-Party Contracts that are in effect on
the Closing Date;
(v) an Assignment and Assumption of Mamaroneck
Space Leases, in the form of Exhibit "K-1" attached hereto and
made a part hereof, duly executed by 550/330 Seller so as to
assign to Purchaser the interest of the lessor in and to the
Mamaroneck Space Leases that are in effect on the Closing Date;
(vi) either (x) the Mamaroneck Security Deposits
theretofore paid in cash to 550/330 Seller, or (y) at 550/330
Seller's option, an assignment in the form of Exhibit "L-1"
attached hereto and made a part hereof, duly executed by 550/330
Seller so as to assign to Purchaser the interest of 550/330
Seller in and to the account or accounts in which such Mamaroneck
Security Deposits have been deposited, together with an
accounting certified by 550/330 Seller of the disposition, if
any, of such Mamaroneck Security Deposits;
(vii) all keys in 550/330 Seller's possession to,
and all combinations to any locks on, all entrance doors to, and
any equipment and utility rooms located in, the Mamaroneck
Improvements, appropriately tagged for identification;
(viii) any original executed counterparts in
550/330 Seller's possession, or, in lieu thereof, true and
correct copies, of (a) the documents comprising the Mamaroneck
Contract Rights and Mamaroneck Third-Party Contracts, if any,
that are in effect on the Closing Date, and (b) any plans or
surveys in 550/330 Seller's possession relating to the Mamaroneck
Real Estate;
(ix) any original executed counterparts in 550/330
Seller's possession, or, in lieu thereof, true and correct
copies, of (a) the Mamaroneck Space Leases that are in effect on
the Closing Date, and (b) the Mamaroneck Ground Leases;
(x) letters, addressed to each of the Mamaroneck
Tenants, informing them that the Mamaroneck Security Deposits
have been assigned and directing them to make payments thereafter
coming due under the Mamaroneck Space Leases to Purchaser or as
Purchaser may otherwise direct; and
(xi) letters addressed to the lessor under the
Mamaroneck Ground Leases advising that the interest of the lessee
thereunder has been assigned to Purchaser, with two duplicate
originals of the Assignment and Assumption of 550 Ground Lease
and the Assignment and Assumption of 600 Ground Lease, each
executed and acknowledged by 550/330 Seller and Purchaser and in
form for recording attached thereto;
(xii) to the extent any management contract for
the Mamaroneck Office Property is in effect on the Closing Date,
a letter addressed to the managing agent thereunder advising that
the interest of 550/330 Seller has been sold to Purchaser and
terminating such management contract as of the Closing Date;
(xiii) 550/330 Seller's counterparts of all other
Mamaroneck Tenant records and documents, including but not
limited to all licenses and permits and Mamaroneck Tenant
insurance policies, certificates and endorsements, in either case
to the extent in 550/330 Seller's possession; and
(xiv) copies of all plans, specifications,
mechanical, electrical and plumbing layouts and operating manuals
in the possession of 550/330 Seller and used in connection with
the operation and maintenance of the Mamaroneck Office Property
other than those that relate to the operation of 550/330 Seller's
business thereon, solely to the extent in 550/330 Seller's
possession;
Ba With respect to the 330 Property:
(i) an Assignment and Assumption of 330 Ground
Lease in the form of Exhibit "H-2" attached hereto and made a
part hereof, duly executed and acknowledged by 550/330 Seller so
as to assign to Purchaser the interest of the lessee under the
330 Ground Lease, subject only to the Permitted Exceptions;
(ii) a ▇▇▇▇ of sale, in the form of Exhibit "I-2"
attached hereto and made a part hereof, duly executed by 550/330
Seller so as to convey to Purchaser the 330 Personal Property
existing as of the Closing Date free and clear of all liens and
encumbrances;
(iii) an Assignment and Assumption of 330 Contract
Rights and 330 Third-Party Contracts, in the form of Exhibit "J-
2" attached hereto and made a part hereof, duly executed by
550/330 Seller so as to assign to Purchaser the interest of
550/330 Seller in and to the 330 Contract Rights and 330 Third-
Party Contracts that are in effect on the Closing Date;
(iv) an Assignment and Assumption of 330 Space
Leases, in the form of Exhibit "K-2" attached hereto and made a
part hereof, duly executed by 550/330 Seller so as to assign to
Purchaser the interest of the lessor in and to the 330 Space
Leases that are in effect on the Closing Date;
(v) either (x) the 330 Security Deposits
theretofore paid in cash to 550/330 Seller, or (y) at 550/330
Seller's option, an assignment in the form of Exhibit "L-2"
attached hereto and made a part hereof, duly executed by 550/330
Seller so as to assign to Purchaser the interest of 550/330
Seller in and to the account or accounts in which such 330
Security Deposits have been deposited, together with an
accounting certified by 550/330 Seller of the disposition, if
any, of such 330 Security Deposits;
(vi) all keys in 550/330 Seller's possession to,
and all combinations in 550/330 Seller's possession to any locks
in, all entrance doors to, and any equipment and utility rooms
located in, the 330 Improvements, appropriately tagged for
identification;
(vii) any original executed counterparts in
550/330 Seller's possession, or, in lieu thereof, true and
correct copies, of (i) the documents comprising the 330 Contract
Rights and 330 Third-Party Contracts, if any, that are in effect
on the Closing Date, and (ii) any plans or surveys in 550/330
Seller's possession relating to the 330 Real Estate;
(viii) any original executed counterparts in
550/330 Seller's possession, or, in lieu thereof, true and
correct copies, of (i) the 330 Space Leases that are in effect on
the Closing Date, and (ii) the 330 Ground Lease;
(ix) letters, addressed to each of the 330
Tenants, informing them that the 330 Security Deposits have been
assigned and directing them to make payments thereafter coming
due under the 330 Space Leases to Purchaser or as Purchaser may
otherwise direct; and
(x) a letter addressed to the lessor under the 330
Ground Lease advising that the interest of the lessee thereunder
has been assigned to Purchaser, with two duplicate originals of
the Assignment and Assumption of 330 Ground Lease executed and
acknowledged by 550/330 Seller and Purchaser and in form for
recording attached thereto;
(xi) to the extent any management contract for the
330 Office Property is in effect on the Closing Date, a letter
addressed to the managing agent thereunder advising that the
interest of 550/330 Seller has been sold to Purchaser and
terminating such management contract as of the Closing Date;
(xii) 550/330's counterparts of all other 330
Tenant records and documents, including but not limited to all
licenses and permits and 330 Tenant insurance policies,
certificates and endorsements, in either case to the extent in
550/330 Seller's possession; and
(xiii) copies of all plans, specifications,
mechanical, electrical and plumbing layouts and operating manuals
in the possession of 550/330 Seller and used in connection with
the operation and maintenance of the 330 Office Property other
than those that relate to the operation of 550/330 Seller's
business thereon, solely to the extent in 550/330 Seller's
possession;
Ca New York State Transfer Tax Returns and New York
City Transfer Tax Returns to the extent required for the
transactions contemplated hereby, as described in Section 6.9 and
Section 6.10 hereof;
Da reasonable evidence to the effect that the
conditions described in Section 9.3(A) hereof are satisfied as if
determined on and as of the Closing Date;
Ea a certification, duly executed by 550/330 Seller,
pursuant to which 550/330 Seller certifies to Purchaser that
Seller is not a "foreign person," as such term is defined in
Section 1445 of the Internal Revenue Code of 1986, as amended,
and the regulations issued thereunder;
Fa such evidence as the Title Company may reasonably
require as to the authority of the person or persons executing
documents on behalf of 550/330 Seller;
Ga such indemnities, certificates, and affidavits as
may be customarily and reasonably required by the Title Company,
in a form reasonably acceptable to 550/330 Seller;
Ha a certificate, dated the Closing Date, in form and
substance reasonably satisfactory to Purchaser and duly executed
by 550/330 Seller, describing in reasonable detail the extent to
which the conditions described in Section 9.3 hereof would be
satisfied if determined on and as of the Closing Date (it being
understood that 550/330 Seller shall have no personal liability
under such certificate from and after the Closing Date); and
Ia any other documentation reasonably required to
consummate the transaction contemplated hereby.
7.3. Items to be Delivered by 2 Park Sellers. At the
Closing, and upon delivery to the liquidating trust (for the
benefit of each 2 Park Seller (or the partners in such 2 Park
Seller)) of the Shares and cash constituting the 2 Park 99.5%
Purchase Price, or upon the delivery of the cash constituting the
2 Park .5% Purchase Price, as the case may be, each 2 Park Seller
shall deliver, or shall cause to be delivered, to Purchaser:
Aa an assignment and assumption agreement, in the
form of Exhibit "M" attached hereto and made a part hereof, duly
executed by each 2 Park Seller so as to assign to Purchaser all
of the right, title, and interest of such 2 Park Seller in the
Partnership;
Ba an amended certificate of limited partnership for
the Partnership, reflecting that each 2 Park Seller has withdrawn
from the Partnership and that Purchaser and/or one or more
designees of Purchaser (if each such designee has been designated
in accordance with the terms hereof) has been admitted to the
Partnership as the sole general partner, duly executed by each 2
Park Seller;
Ca a certification, duly executed by each 2 Park
Seller, pursuant to which such 2 Park Seller certifies to
Purchaser that such 2 Park Seller is not a "foreign person," as
such term is defined in Section 1445 of the Internal Revenue Code
of 1986, as amended, and the regulations issued thereunder;
Da New York State Transfer Tax Returns and New York
City Transfer Tax Returns to the extent required for the
transactions contemplated hereby, as described in Section 6.9
hereof;
Ea a certificate, dated the Closing Date, in form and
substance reasonably satisfactory to Purchaser and duly executed
by each 2 Park Seller, to the effect that the representations
made by such 2 Park Seller in Section 9.6 hereof are true as if
made on and as of the Closing Date (it being understood that the
personal liability of such 2 Park Seller for such certificate
shall survive the Closing);
Fa a certificate, dated the Closing Date, in form and
substance reasonably satisfactory to Purchaser and duly executed
by each 2 Park Seller, describing in reasonable detail the extent
to which the conditions described in Section 9.4 hereof would be
satisfied if determined on and as of the Closing Date (it being
understood that no 2 Park Seller shall have personal liability
under such certificate from and after the Closing); and
Ga any other documentation reasonably required to
consummate the transaction contemplated hereby.
7.4. Items to be Delivered by Purchaser to 550/330
Seller. At the Closing, Purchaser shall deliver, or cause to be
delivered, to 550/330 Seller:
Aa the 550/330 Purchase Price (together with the net
amount of any apportionments and other amounts due to 550/330
Seller at the Closing);
Ba With regard to the Mamaroneck Property:
(i) the Assignment and Assumption of Mamaroneck
Space Leases, duly executed and acknowledged by Purchaser;
(ii) the Assignment and Assumption of the
Mamaroneck Ground Leases, duly executed and acknowledged by
Purchaser;
(iii) the Assignment and Assumption of Mamaroneck
Contract Rights and Mamaroneck Third-Party Contracts, duly
executed by Purchaser; and
(iv) reasonable evidence to the effect that
Purchaser has complied with Section 15.02(c) or Section 15.02(d)
of each of the Mamaroneck Ground Leases, as the case may be;
Ca With regard to the 330 Property:
(i) the Assignment and Assumption of 330 Space
Leases, duly executed and acknowledged by Purchaser;
(ii) the Assignment and Assumption of 330 Ground
Lease, duly executed and acknowledged by Purchaser; and
(iii) the Assignment and Assumption of 330
Contract Rights and 330 Third-Party Contracts, duly executed by
Purchaser;
Da a New York State Transfer Tax Return and a New
York City Transfer Tax Return to the extent required for the
transactions contemplated hereby and to the extent required to be
executed by Purchaser, as described in Section 6.10 hereof;
Ea reasonable evidence to the effect that the
representation made by Purchaser in Section 9.5 hereof is true as
if made on and as of the Closing Date; and
Fa any other documentation reasonably required to
consummate the transaction contemplated hereby.
7.5. Items to be Delivered by Purchaser to 2 Park
Sellers. At the Closing, Purchaser shall deliver, or cause to be
delivered, to 2 Park Sellers:
Aa the Shares and cash constituting the 2 Park 99.5%
Purchase Price, and the cash constituting the 2 Park .5% Purchase
Price, together with, in each case, any other net amounts due to
2 Park Sellers at the Closing; provided, however, that Purchaser
shall deliver said Shares to a designated liquidating trust
pursuant to Section 3.3(A) hereof;
Ba the assignment and assumption agreement
transferring all of the right, title, and interest of the 2 Park
Sellers in the Partnership, duly executed and acknowledged by
Purchaser;
Ca reasonable evidence to the effect that the
representation made by Purchaser in Section 9.5 hereof is true as
if made on and as of the Closing Date; and
Da any other documentation reasonably required to
consummate the transaction contemplated hereby.
7.6. Estoppel Letters.
Aa Within ten (10) days after the date hereof,
550/330 Seller shall request (i) an estoppel letter,
substantially in the form attached hereto as Exhibit "N" and made
a part hereof, from each 550/330 Tenant under a 550/330 Space
Lease that is then in effect and which demises Two Thousand Five
Hundred (2,500) rentable square feet or more of the 550/330
Improvements (a "550/330 Tenant Estoppel Letter"), and (ii) an
estoppel letter from each lessor under the Mamaroneck Ground
Leases, substantially in the form attached hereto as Exhibit "O-
1" and made a part hereof, and from the lessor under the 330
Ground Lease, substantially in the form attached hereto as
Exhibit "O-2" and made a part hereof (a "Ground Lease Estoppel
Letter"; the 550/330 Tenant Estoppel Letters and the Ground Lease
Estoppel Letters being collectively referred to herein as the
"550/330 Estoppel Letters"). 550/330 Seller shall deliver to
Purchaser copies of the 550/330 Estoppel Letters delivered to
550/330 Seller during the Contract Period (if any) promptly after
550/330 Seller's receipt thereof.
Ba Subject to the terms of this Section 7.6(B),
Purchaser may, at its option, terminate this Agreement by giving
notice thereof to Sellers if, at or prior to the Closing, 550/330
Seller has not delivered to Purchaser (a) 550/330 Tenant Estoppel
Letters for Mamaroneck Tenants that lease in the aggregate at
least fifty percent (50%) of the rentable area of the Mamaroneck
Improvements, (b) Ground Lease Estoppel Letters with respect to
the Mamaroneck Property, (c) 550/330 Tenant Estoppel Letters for
330 Tenants that lease in the aggregate at least fifty percent
(50%) of the rentable area of the 330 Improvements, or (d) a
Ground Lease Estoppel Letter with respect to the 330 Property.
If Purchaser exercises Purchaser's right to terminate this
Agreement under this Section 7.6(B) by reason of Seller's failure
to deliver to Purchaser 550/330 Tenant Estoppel Letters that
satisfy the requirements of clause (a) or clause (c) above, then
550/330 Seller shall have the right to declare Purchaser's
aforesaid termination ineffective by delivering to Purchaser at
the Closing a certificate, duly executed by 550/330 Seller,
regarding the same matters that would have been covered by a
550/330 Tenant Estoppel Letter for particular Mamaroneck Tenants
or 330 Tenants identified by Seller (so that Purchaser has
received either a 550/330 Tenant Estoppel, or the aforesaid
certificate of Seller, for each of (i) Mamaroneck Tenants that
lease at least fifty percent (50%) of the rentable area of the
Mamaroneck Improvements in the aggregate, and (ii) 330 Tenants
that lease at least fifty percent (50%) of the rentable area of
the 330 Improvement in the aggregate). Purchaser acknowledges
that 550/330 Seller's liability under the aforesaid certificate
of 550/330 Seller shall survive the Closing only for a period of
sixty (60) days. If 550/330 Seller fails to deliver to Purchaser
550/330 Tenant Estoppel Letters that satisfy the requirements
described in clause (a) above (or the aforesaid certificate of
550/330 Seller, as the case may be), or Ground Lease Estoppel
Letters that satisfy the requirements described in clause (b)
above, then Purchaser shall have the right to exercise
Purchaser's aforesaid rights to terminate this Agreement (1) with
respect to the Mamaroneck Property only, or (2) in its entirety.
If 550/330 Seller fails to deliver to Purchaser 550/330 Tenant
Estoppel Letters that satisfy the requirements described in
clause (c) above (or the aforesaid certificate of 550/330 Seller,
as the case may be), or a Ground Lease Estoppel Letter that
satisfies the requirements described in clause (d) above, then
Purchaser shall have the right to exercise Purchaser's aforesaid
rights to terminate this Agreement (1) with respect to the 330
Property only, or (2) in its entirety. If this Agreement is
terminated with respect to the Mamaroneck Property only, as
aforesaid, then (i) no party shall have thereafter any continuing
rights, duties or obligations hereunder with respect to the
Mamaroneck Property (except that the parties' obligations under
Section 10 and Section 15.9 hereof shall survive said
termination), and (ii) said termination shall not affect Seller's
or Purchaser's obligations hereunder with respect to the 2 Park
Interest or the 330 Property nor entitle Purchaser to the return
of the Letter of Credit as a result thereof. If this Agreement
is terminated with respect to the 330 Property only, as
aforesaid, then (i) no party shall have thereafter any continuing
rights, duties or obligations hereunder with respect to the 330
Property (except that the parties' obligations under Section 10
and Section 15.9 hereof shall survive said termination), and (ii)
said termination shall not affect Seller's or Purchaser's
obligations hereunder with respect to the 2 Park Interest or the
Mamaroneck Property nor entitle Purchaser to the return of the
Letter of Credit as a result thereof. If this Agreement is
terminated in its entirety, as aforesaid, then Purchaser shall be
entitled to the return of the Letter of Credit, and thereupon, no
party shall have thereafter any continuing rights, duties or
obligations hereunder (except that the parties' respective
obligations under Section 10 and Section 15.9 hereof shall
survive said termination).
7.7. Litigation. Purchaser may, at its option,
terminate this Agreement if the "Final Date" has not occurred
under the Stipulation and Agreement of Compromise, Settlement and
Release (the "Settlement Agreement") with respect to the pending
class action described on Exhibit "R" attached hereto and made a
part hereof, and the Closing has not theretofore occurred, on or
prior to July 30, 1999 by giving notice thereof to Sellers not
later than August 15, 1999, except that Sellers shall have the
right to declare Purchaser's aforesaid termination ineffective if
(x) Sellers are then ready, willing and able to consummate the
transaction contemplated hereby, and (y) the Final Date occurs
within fifteen (15) days after the date when Purchaser gives such
notice to Sellers. If Purchaser elects to terminate this
Agreement as aforesaid (and Sellers do not declare such
termination ineffective, as aforesaid), then Sellers promptly
shall return the Letter of Credit (or the proceeds thereof, if
theretofore presented for payment) to Purchaser and, thereupon,
no party shall have any continuing rights, duties, or obligations
hereunder with respect to either the 550/330 Property or the 2
Park Interests (except that the parties' obligations under
Section 10 and Section 15.9 hereof shall survive said
termination).
7.8. Security Deposits. 550/330 Seller shall either
(x) pay to Purchaser at the Closing an amount equal to the
550/330 Security Deposits theretofore paid in cash (whether or
not such security is in the possession of 550/330 Seller on the
Closing Date) to 550/330 Seller, or (y) at 550/330 Seller's
option, grant an assignment of the account or accounts in which
such 550/330 Security Deposits have been deposited (whether or
not such security is in the possession of 550/330 Seller on the
Closing Date), together with an accounting certified by 550/330
Seller of the disposition, if any, of such 550/330 Security
Deposits. 550/330 Seller shall use its reasonable efforts
promptly after the Closing to cause each letter of credit issued
as a 550/330 Security Deposit either to be (x) reissued in favor
of Purchaser as of the Closing Date, or (y) otherwise amended or
endorsed so as to render Purchaser the beneficiary of such letter
of credit as of the Closing Date. Until any such letter of
credit has been reissued, amended, or endorsed in favor of
Purchaser, 550/330 Seller shall reasonably cooperate with
Purchaser in effecting a draw of the letter of credit if
Purchaser is entitled thereto in accordance with the terms of the
applicable 550/330 Space Lease. Purchaser shall indemnify
550/330 Seller and hold 550/330 Seller harmless from and against
any and all losses, liabilities, damages, costs, or expenses
(including, without limitation, reasonable attorneys' fees and
disbursements) that 550/330 Seller sustains in connection with
550/330 Seller's drawing upon any such letter of credit after the
Closing. The provisions of this Section 7.8 shall survive the
Closing.
7.9. Miscellaneous Covenants of Purchaser.
Aa Purchaser shall comply with Section 15.02(c) and
Section 15.02(d) of the Mamaroneck Ground Leases, if applicable.
Ba Purchaser shall comply with Section 20.01 of the
330 Ground Lease and deliver a copy of the Assignment and
Assumption of 330 Ground Lease to the lessor thereunder.
Ca The provisions of this Section 7.9 shall survive
the Closing.
80 Inspection; Title Insurance, UCC Search and
Survey; Violations.
8.1. Property Condition and Inspection.
A. Subject to the terms of this Section 8.1,
550/330 Seller agrees that Purchaser, its agents, contractors and
consultants may, on reasonable prior notice to 550/330 Seller and
the lessor under the Mamaroneck Ground Leases, the 330 Ground
Lease, and any affected 550/330 Tenant, as appropriate, and in
accordance with the terms of the Mamaroneck Ground Leases, the
330 Ground Lease, and any applicable 550/330 Space Leases, for a
period ending thirty (30) days after the date hereof (the
"Inspection Period"), enter the 550/330 Property to conduct, at
Purchaser's sole cost and expense, (i) an engineering inspection
of the 550/330 Property to determine whether the physical
properties and structures are reasonably sound and in good
working order, (ii) to prepare (A) an update of the Mamaroneck
Survey or of the 330 Survey, (B) a new survey for the Mamaroneck
Property, or (C) a new survey of the 330 Property (such update,
such new survey, or such survey being referred to herein as a
"Current Survey"), and (iii) to complete a Phase I environmental
survey with respect to the 550/330 Real Estate; provided,
however, that such Phase I survey shall (A) be prepared by a
nationally recognized environmental consulting firm acceptable to
550/330 Seller, (B) be conducted in accordance with the protocol
established by the American Society for Testing and Materials,
Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process, E 1527-94, and (C) not
involve any intrusive testing or sampling of the soil,
groundwater, or other environmental media. A copy of any reports
and surveys produced by Purchaser, its agents, contractors and
consultants in connection herewith shall be provided to 550/330
Seller within ten (10) business days after their completion.
Until the Closing has occurred, Purchaser shall keep confidential
the results of any such inspection or survey that Purchaser
performs or causes to be performed during the Inspection Period,
except to the extent disclosure is otherwise required by law and
except for disclosure to Purchaser's attorneys and other
consultants. Nothing contained in this Section 8.1 (x) grants to
Purchaser any right to terminate this Agreement, or (y) limits
the provisions of Section 9.2 hereof.
B. Purchaser hereby indemnifies, and agrees to defend
and hold 550/330 Seller harmless, from and against any claims,
demands, liabilities, damages, costs and expenses (including
reasonable attorneys' fees and costs) for (i) personal injury or
property damage to the extent incurred by reason of, or arising
out of, any entry upon the 550/330 Property by Purchaser, its
agents, contractors, and consultants, (ii) the conducting of any
test, surveying, engineering and other inspection activities by
Purchaser, its agents, contractors, and consultants (but not the
results thereof), and (iii) any costs and/or damages sustained by
or asserted against 550/330 Seller or the 550/330 Property,
including, but not limited to, physical damage, physical injury
to Purchaser's agents, contractors, and consultants, and any
mechanics' and materialmen's liens, to the extent caused as a
result or to the extent arising out of or in connection with the
conducting of any inspections or examinations by Purchaser, its
agents, contractors, and consultants (but not the results
thereof). If Purchaser exercises Purchaser's right to enter upon
the 550/330 Property as contemplated by this Section 8.1, then
Purchaser, at Purchaser's sole cost and expense, shall obtain and
keep in full force and effect during the period when such entry
occurs a commercial general liability insurance policy, on an
occurrence basis, in an amount of not less than $1,000,000
combined single limit, with a broad form contractual liability
endorsement, which names 550/330 Seller as an additional insured
thereunder. Purchaser shall not have the right to so enter upon
the 550/330 Property without first providing to 550/330 Seller
reasonable evidence to the effect that such insurance is in full
force and effect.
8.2. Designation of Title Company. Purchaser, within
ten (10) business days after the date hereof, shall order (x) a
title insurance commitment for the real property interests in the
Mamaroneck Property to be conveyed by 550/330 Seller to Purchaser
hereunder and a title insurance commitment for the real property
interests in the 330 Property to be conveyed by 550/330 Seller to
Purchaser hereunder (the "Title Commitments") from any reputable
title insurance company designated by Purchaser that is licensed
to do business in the State of New York (the "Title Company"),
and (y) a search (the "UCC Search"), conducted by a reputable
search company, of filings made against 550/330 Seller under the
Uniform Commercial Code, as adopted in New York State, in the
Office of the Clerk of the County of Westchester, the Office of
the Clerk of the County of New York, or in the Office of the
Department of State of the State of New York. Purchaser shall
instruct the Title Company and such search company to proceed
with due diligence.
8.3. 550/330 Seller's Title Affidavit. 550/330 Seller,
at the Closing, shall deliver to Purchaser an affidavit, in form
reasonably satisfactory to Purchaser or the Title Company, to the
effect that 550/330 Seller is not affected by any judgments,
bankruptcy proceedings, environmental control board liens and
other similar matters which appear in the Title Commitments or in
the UCC Search and which do not involve 550/330 Seller.
8.4. Certain Costs. Purchaser shall pay the premium
for Purchaser's title insurance policies and all related charges
and survey costs incurred in connection with such policies, and
the cost of the UCC Search. Purchaser shall pay all costs
associated with recording the Mamaroneck Deed, the Assignment and
Assumption of 550 Ground Lease, the Assignment and Assumption of
600 Ground Lease, and the Assignment and Assumption of 330 Ground
Lease, other than the State Transfer Tax and the City Transfer
Tax (which Seller shall pay in accordance with the provisions of
Section 6.10 hereof).
8.5. Designation of Defects.
A. Purchaser, on or prior to the fifteenth (15th)
business day after the date when Purchaser receives the Title
Commitments from the Title Company or the UCC Search from the
search company, as the case may be, or, in either case, any
update thereof, shall give 550/330 Seller a copy of the Title
Commitments or the UCC Search, or such update, as the case may
be, together with a notice of Purchaser's objections (if any) to
(a) any easements, liens and other similar items that the Title
Company lists in the respective Title Commitments (or such
updates) as encumbrances on either (x) the Mamaroneck Property
(other than the Mamaroneck Permitted Exceptions), or (y) the 330
Property (other than the 330 Permitted Exceptions), and (b) any
liens, security interests and other similar items that are
disclosed on the UCC Search (or such update) (other than the
Mamaroneck Permitted Exceptions and 330 Permitted Exceptions).
B. If Purchaser orders a Current Survey, then
Purchaser, on or prior to the fifteenth (15th) business day after
the date when Purchaser receives such Current Survey, shall give
550/330 Seller a copy thereof, together with a notice of
Purchaser's objections to any matters disclosed thereon (and not
theretofore disclosed in the respective Title Commitments or the
UCC Search) which do not otherwise constitute either Mamaroneck
Permitted Exceptions or 330 Permitted Exceptions (any items
identified in the respective Title Commitments or the UCC Search
(or an update thereof), or the Current Survey, to which, in each
case, Purchaser objects as provided in Section 8.5(A) hereof or
in this Section 8.5(B), being referred to herein as a "Defect").
Purchaser's right to designate Defects disclosed on a Current
Survey is conditioned upon Purchaser (i) ordering the Current
Survey from a reputable surveyor within ten (10) business days of
the date hereof, and (ii) instructing said surveyor to proceed
with due diligence.
C. If Purchaser does not identify a title exception
or a survey defect as a Defect in accordance with this Section
8.5, then such title exception or survey defect shall constitute
either a Mamaroneck Permitted Exception, if it concerns the
Mamaroneck Property, or a 330 Permitted Exception, if it concerns
the 330 Property, for purposes hereof.
D. Except as expressly provided in this Section 8,
550/330 Seller is under no obligation to remove any Defect.
550/330 Seller shall have the right to adjourn the Closing from
time to time for a reasonable period of time (not to exceed sixty
(60) days in the aggregate) to clear Defects. If (i) a Defect is
not of the type specified in Section 8.5(G) hereof, and (ii)
550/330 Seller is unable to clear such Defect or elects not to do
so, as a result of which 550/330 Seller is unable to convey title
to either the Mamaroneck Property or the 330 Property in
accordance with the provisions hereof, then 550/330 Seller shall
so notify Purchaser.
E. If (i) a notice given by Purchaser designating
Defects concerns the Mamaroneck Property, and (ii) the reasonable
cost of clearing such Defects (the "Mamaroneck Title Cost")
exceeds the Available Mamaroneck Materiality Amount, then
Purchaser, within ten (10) business days following receipt
thereof, shall either (x) elect to terminate this Agreement (I)
with respect to the Mamaroneck Property only, or (II) in its
entirety, in either case by notice given to 550/330 Seller, or
(y) elect to accept title to the Mamaroneck Property subject to
such Defects, in which case the parties shall consummate the
transaction contemplated hereby in accordance with the provisions
hereof, except that Purchaser shall be entitled to a credit
against the 550/330 Purchase Price in an amount equal to the
lesser of (i) the excess of the Mamaroneck Title Cost over the
Available Mamaroneck Materiality Amount, and (ii) Two Hundred
Fifty Thousand Dollars ($250,000). If (i) a notice given by
Purchaser designating Defects concerns the Mamaroneck Property,
and (ii) the Mamaroneck Title Cost does not exceed the Available
Mamaroneck Materiality Amount, then the parties shall consummate
the transaction contemplated hereby in accordance with the
provisions hereof, without Purchaser being entitled to any credit
against the 550/330 Purchase Price. If Purchaser does not make
such election within such ten (10) business day period, then
Purchaser shall be deemed to have elected clause (y) above with
the same force and effect as if Purchaser had elected clause (y)
within such ten (10) business day period. If this Agreement is
terminated with respect to the Mamaroneck Property only, as
aforesaid, then (i) no party shall have thereafter any continuing
rights, duties or obligations hereunder with respect to the
Mamaroneck Property (except that the parties' obligations under
Section 10 and Section 15.9 hereof shall survive said
termination), and (ii) said termination shall not affect Seller's
or Purchaser's obligations hereunder with respect to the 2 Park
Interests or the 330 Property nor entitle Purchaser to the return
of the Letter of Credit as a result thereof. If this Agreement
is terminated in its entirety, as aforesaid, then Purchaser shall
be entitled to the return of the Letter of Credit, and thereupon,
no party shall have thereafter any continuing rights, duties or
obligations hereunder (except that the parties' respective
obligations under Section 10 and Section 15.9 hereof shall
survive said termination).
F. If (i) a notice given by Purchaser designating
Defects concerns the 330 Property, and (ii) the reasonable cost
of clearing such Defects (the "330 Title Cost") exceeds the
Available 330 Materiality Amount, then Purchaser, within ten (10)
business days following receipt thereof, shall either (x) elect
to terminate this Agreement (I) with respect to the 330 Property
only, or (II) in its entirety, in either case by notice given to
550/330 Seller, or (y) elect to accept title to the 330 Property
subject to such Defects, in which case the parties shall
consummate the transaction contemplated hereby in accordance with
the provisions hereof, except that Purchaser shall be entitled to
a credit against the 550/330 Purchase Price in an amount equal to
the lesser of (i) the excess of the 330 Title Cost over the
Available 330 Materiality Amount, and (ii) Two Hundred Fifty
Thousand Dollars ($250,000). If (i) a notice given by Purchaser
designating Defects concerns the 330 Property, and (ii) the 330
Title Cost does not exceed the Available 330 Materiality Amount,
then the parties shall consummate the transaction contemplated
hereby in accordance with the provisions hereof, without
Purchaser being entitled to any credit against the 550/330
Purchase Price. If Purchaser does not make such election within
such ten (10) business day period, Purchaser shall be deemed to
have elected clause (y) above with the same force and effect as
if Purchaser had elected clause (y) within such ten (10) business
day period. If this Agreement is terminated with respect to the
330 Property only, as aforesaid, then (i) no party shall have
thereafter any continuing rights, duties or obligations hereunder
with respect to the 330 Property (except that the parties'
obligations under Section 10 and Section 15.9 hereof shall
survive said termination), and (ii) said termination shall not
affect Seller's or Purchaser's obligations hereunder with respect
to the 2 Park Interest or the Mamaroneck Property nor entitle the
Purchaser to the return of the Letter of Credit as a result
thereof. If this Agreement is terminated in its entirety, as
aforesaid, then Purchaser shall be entitled to the return of the
Letter of Credit, and thereupon, no party shall have thereafter
any continuing rights, duties or obligations hereunder (except
that the parties' respective obligations under Section 10 and
Section 15.9 hereof shall survive said termination).
G. Except as provided in Section 8.7 hereof, if, as
of the Closing Date, the Mamaroneck Property or the 330 Property
is subject to any Defect that constitutes (i) a mechanic's lien
or a materialman's lien which, in either case, do not derive from
work performed by or on behalf of, or materials supplied to, any
550/330 Tenant, (ii) a mortgage made by 550/330 Seller, (iii) a
security interest granted by 550/330 Seller, (iv) a judgment lien
against 550/330 Seller, or (v) an execution lien against 550/330
Seller, which either individually or when aggregated with other
items of the nature described in this Section 8.5(G) are in a
liquidated amount equal to or less than the 550/330 Purchase
Price, then, subject to Section 8.6 hereof, 550/330 Seller shall
cause such Defects to be removed and discharged of record on or
before the Closing Date.
8.6. Removal of Defects.
A. 550/330 Seller, in lieu of satisfying any liens or
encumbrances affecting the 550/330 Property, may (but, subject to
Section 8.5(G) hereof, shall be under no obligation to) either
(x) direct Purchaser to apply a portion of the 550/330 Purchase
Price to the satisfaction of such liens and encumbrances
affecting either the Mamaroneck Property and/or the 330 Property,
as appropriate, provided that 550/330 Seller, at the Closing,
delivers to Purchaser or the Title Company instruments in
recordable form and sufficient to satisfy of record such liens
and encumbrances, together with the cost of recording or filing
such instruments, or (y) if such lien or encumbrance is for an
amount less than One Million Dollars ($1,000,000), deliver to the
Title Company such security or other documents sufficient to
induce the Title Company to insure Purchaser against collection
of such liens and/or encumbrances, including interest and
penalties, against either the Mamaroneck Property or the 330
Property affected by the aforesaid Defect, in which event such
liens and encumbrances shall not be objections to title.
B. Purchaser shall provide 550/330 Seller, at the
Closing, with separate certified and/or official checks drawn on,
or by, a Qualified Bank, payable as directed by 550/330 Seller,
in an aggregate amount not to exceed the 550/330 Purchase Price
as contemplated by Section 8.6(A) hereof to facilitate the
satisfaction of any such liens or encumbrances, provided that
550/330 Seller gives notice thereof to Purchaser on or prior to
the second (2nd) business day before the Closing Date.
8.7. Assignment of Existing Mamaroneck Mortgage.
A. Subject to the provisions of this Section 8.7,
Purchaser may elect up to twenty (20) days prior to the Closing
Date to require 550/330 Seller to request that the holder of the
mortgage that constitutes a first lien on 550/330 Seller's
interests in the Mamaroneck Property as of the date hereof, as
described on Exhibit "S" attached hereto and made a part hereof,
assign such mortgage, together with the note secured thereby, at
the Closing to a mortgagee designated by Purchaser (such mortgage
being referred to herein as the "Existing Mamaroneck Mortgage";
such holder of the Existing Mamaroneck Mortgage being referred to
herein as the "Existing Mamaroneck Mortgagee"). 550/330 Seller
shall have no obligation to consummate any such assignment of the
Existing Mamaroneck Mortgage and the note secured thereby unless,
at the Closing, and prior to the consummation of such assignment,
the Existing Mamaroneck Mortgagee releases 550/330 Seller (and
any other person or entity related to or affiliated with 550/330
Seller) from any personal liability in connection with the
Existing Mamaroneck Mortgage and the note secured thereby, and
any of the other documents executed in connection therewith.
B. If the Existing Mamaroneck Mortgagee assigns the
Existing Mamaroneck Mortgage and the note secured thereby to
Purchaser's designee as contemplated by this Section 8.7, then
(a) the Existing Mamaroneck Mortgage shall constitute a
Mamaroneck Permitted Exception for purposes hereof, (b) Purchaser
shall pay in advance the costs imposed by the Existing Mamaroneck
Mortgagee (or the Existing Mamaroneck Mortgagee's counsel) in
connection with the assignment of the Existing Mamaroneck
Mortgage and the note secured thereby, and (c) Purchaser, at the
Closing, shall direct Purchaser's lender to pay to the Existing
Mamaroneck Mortgagee the aggregate amount then due and owing to
the Existing Mamaroneck Mortgagee in respect of the loan secured
by the Existing Mamaroneck Mortgage (it being understood that
such aggregate amount paid by Purchaser's lender to the Existing
Mamaroneck Mortgagee shall (i) constitute a credit against the
550/330 Purchase Price due to 550/330 Seller at the Closing, and
(ii) not exceed the 550/330 Purchase Price due to 550/330 Seller
at the Closing).
8.8. 550/330 Violations.
A. All violations of law or municipal ordinances,
orders or requirements noted in or issued by the department of
buildings, fire, labor, health or other federal, state, county,
municipal or other departments and governmental agencies having
jurisdiction against or affecting the Mamaroneck Real Estate
and/or the 330 Real Estate and any outstanding work orders and
requirements of the insurance company presently insuring the
Mamaroneck Property and/or the 330 Property under the 550/330
Insurance Policies shall be the sole responsibility of Purchaser
and Purchaser shall accept title to the 550/330 Property subject
to such violations without any abatement of the 550/330 Purchase
Price (such violations, work orders and requirements being
collectively referred to herein as "Violations").
B. Notwithstanding Section 8.8(A) hereof, if, with
respect to the Mamaroneck Property, the reasonable cost (the
"Mamaroneck Violations Cost") of complying with the Violations
that first arise of record during the period (a) commencing on
the earlier to occur of (X) the sixtieth (60th) day after the
date when the court enters an order approving the consummation of
the transaction contemplated hereby and by the Settlement
Agreement, and (Y) the ninetieth (90th) day after the date
hereof, and (b) ending on the day immediately preceding the
Closing Date, exceeds Two Hundred Thousand Dollars ($200,000),
then Purchaser may, at its option, terminate this Agreement (I)
with respect to the Mamaroneck Property only, or (II) in its
entirety, in either case by giving notice thereof to Sellers at
or prior to the Closing (unless Sellers, at Sellers' option,
either (i) performs the work required to clear any such
Violations, or (ii) grants to Purchaser a credit against the
550/330 Purchase Price at the Closing in an amount equal to the
excess of the Mamaroneck Violations Cost over Two Hundred
Thousand Dollars ($200,000)). If this Agreement is terminated
with respect to the Mamaroneck Property, as aforesaid, then (i)
no party shall have thereafter any continuing rights, duties or
obligations hereunder with respect to the Mamaroneck Property
(except that the parties' obligations under Section 10 and
Section 15.9 hereof shall survive said termination), and (ii)
said termination shall not affect Seller's or Purchaser's
obligations hereunder with respect to the 2 Park Interest or the
330 Property nor entitle Purchaser to the return of the Letter of
Credit as a result thereof. If this Agreement is terminated in
its entirety, as aforesaid, then Purchaser shall be entitled to
the return of the Letter of Credit, and thereupon, no party shall
have thereafter any continuing rights, duties or obligations
hereunder (except that the parties' respective obligations under
Section 10 and Section 15.9 hereof shall survive said
termination). Purchaser is hereby authorized to make the
necessary Violation searches for the Mamaroneck Property and,
upon request, 550/330 Seller shall furnish Purchaser with such
further authorization to make additional Violation searches for
the Mamaroneck Property as may be necessary.
C. Notwithstanding Section 8.8(A) hereof, if, with
respect to the 330 Property, the reasonable cost (the "330
Violations Cost") of complying with the Violations that first
arise of record during the period (a) commencing on the earlier
of (X) the sixtieth (60th) day after the date when the court
enters an order approving the consummation of the transaction
contemplated hereby and by the Settlement Agreement, and (Y) the
ninetieth (90th) day after the date hereof, and (b) ending on the
day immediately preceding the Closing Date, exceeds Two Hundred
Thousand Dollars ($200,000), then Purchaser may, at its option,
terminate this Agreement (I) with respect to the 330 Property
only, or (II) in its entirety, in either case by giving notice
thereof to Sellers at or prior to the Closing (unless Seller, at
Seller's option, either (i) performs the work required to clear
any such Violations, or (ii) grants to Purchaser a credit against
the 550/330 Purchase Price at the Closing in an amount equal to
the excess of the 330 Violations Cost over Two Hundred Thousand
Dollars ($200,000)). If this Agreement is terminated with
respect to the 330 Property, as aforesaid, then (i) no party
shall have thereafter any continuing rights, duties or
obligations hereunder with respect to the 330 Property (except
that the parties' obligations under Section 10 and Section 15.9
hereof shall survive said termination), and (ii) said termination
shall not affect Seller's or Purchaser's obligations hereunder
with respect to the 2 Park Interest or the Mamaroneck Property
nor entitle the Purchaser to the return of the Letter of Credit
as a result thereof. If this Agreement is terminated in its
entirety, as aforesaid, then Purchaser shall be entitled to the
return of the Letter of Credit, and thereupon, no party shall
have thereafter any continuing rights, duties or obligations
hereunder (except that the parties' respective obligations under
Section 10 and Section 15.9 hereof shall survive said
termination). Purchaser is hereby authorized to make the
necessary Violation searches for the 330 Property and, upon
request, 550/330 Seller shall furnish Purchaser with such further
authorization to make additional Violation searches for the 330
Property as may be necessary.
9. Merger; Representations.
9.1. Merger.
A. The acceptance of the Mamaroneck Deed, the
Assignment and Assumption of 550 Ground Lease, the Assignment and
Assumption of 600 Ground Lease, and the Assignment and Assumption
of 330 Ground Lease by Purchaser shall be deemed to be an
acknowledgment by Purchaser that 550/330 Seller has fully
performed, discharged and complied with all of 550/330 Seller's
obligations, representations, warranties, covenants and
agreements hereunder, that 550/330 Seller is discharged therefrom
and that 550/330 Seller shall have no further liability with
respect thereto, except for those which are herein specifically
stated to survive the Closing.
B. The acceptance of the Assignment and Assumption of
2 Park Interests shall be deemed to be an acknowledgment by
Purchaser that 2 Park Sellers have fully performed, discharged
and complied with all of 2 Park Sellers' obligations,
representations, warranties, covenants and agreements hereunder,
that 2 Park Sellers are discharged therefrom and that 2 Park
Sellers shall have no further liability with respect thereto,
except for those which are herein specifically stated to survive
the Closing. Purchaser and 2 Park Sellers acknowledge and agree
that upon the execution and delivery of the items listed in
Section 7.5 hereof, 2 Park Sellers shall be deemed to have
withdrawn from the Partnership.
9.2. No Implied Representations. Purchaser represents,
warrants and agrees (i) that Purchaser has examined and
understands the operation and/or condition of (a) the 550/330
Property, and (b) the parcel of land described on Exhibit "U"
attached hereto and made a part hereof, as well as the buildings
and improvements built on or attached to said parcel (the "2 Park
Improvements"), and the fixtures, personal property, and rights
under leases, contracts, easements, right-of-ways, licenses,
privileges, and servitudes appurtenant thereto (the items of
property listed in this Section 9.2(i)(b) being referred to
collectively herein as the "2 Park Real Estate and Related
Interests"), (ii) that Purchaser has made such examination of the
operation, income and expenses of the 550/330 Property and the 2
Park Real Estate and Related Interests, as well as all other
matters and documents affecting or relating to this transaction,
the 550/330 Property, or the 2 Park Real Estate and Related
Interests, as Purchaser deemed necessary, (iii) that except for
express representations and warranties of 550/330 Seller set
forth herein, neither 550/330 Seller nor the affiliates,
employees, agents, attorneys, partners, officers, directors,
advisors or property manager of 550/330 Seller, nor Mamaroneck
Broker, have made any verbal or written representations,
warranties or statements of any nature or kind whatsoever to
Purchaser, whether expressed or implied, and, in particular, that
no representations or warranties have been made with respect to
(a) the physical condition or operation of the 550/330 Property,
(b) the revenues and expenses of the 550/330 Property, (c) the
zoning and other laws, regulations and rules applicable to the
550/330 Property or the compliance of the 550/330 Property
therewith, (d) the Mamaroneck Space Leases, the Mamaroneck Ground
Leases, the Mamaroneck Security Deposits, the Mamaroneck Third-
Party Contracts, the Mamaroneck Contract Rights, the 330 Space
Leases, the 330 Ground Leases, the 330 Security Deposits, the 330
Third-Party Contracts, or the 330 Contract Rights, and any rights
or obligations of 550/330 Seller thereunder, (e) the occupancy of
the 550/330 Real Estate or any part thereof, (f) the quantity,
quality or condition of the Mamaroneck Fixtures and the 330
Fixtures, or (g) any other matter or thing affecting or related
to the 550/330 Property or the transactions contemplated hereby,
except as and solely to the extent herein specifically set forth,
and (iv) that except for express representations and warranties
of 2 Park Sellers set forth herein, neither 2 Park Sellers nor
their affiliates, employees, attorneys, agents, partners,
officers, directors, advisors or property manager have made any
verbal or written representations, warranties or statements of
any nature or kind whatsoever to Purchaser, whether expressed or
implied, and, in particular, that no representations or
warranties have been made with respect to (a) the physical
condition or operation of the 2 Park Real Estate and Related
Interests, (b) the revenues and expenses of the 2 Park Real
Estate and Related Interests, (c) the zoning and other laws,
regulations and rules applicable to the 2 Park Real Estate and
Related Interests or the compliance of the same therewith, (d)
any leases or other agreements for the present or future use or
occupancy of any space in the 2 Park Improvements, in respect of
which 2 Park Sellers hold the interest of the lessor thereunder,
in effect on the date hereof, (f) any assignable guaranties,
warranties, certificates, rights, privileges, licenses and
permits, as well as any deposits made by 2 Park Sellers (or 2
Park Sellers' predecessors-in-interest) with utility companies,
relating solely to the 2 Park Real Estate and Related Interests,
in effect on the date hereof, (g) any material management,
brokerage, service, or maintenance contracts or collective
bargaining or other union agreements with respect to the 2 Park
Real Estate and Related Interests, and any rights or obligations
of 2 Park Sellers thereunder, in effect on the date hereof, (h)
the occupancy of the 2 Park Real Estate and Related Interests or
any part thereof, (i) the quantity, quality or condition of any
fixtures appurtenant to the 2 Park Real Estate and Related
Interests, (j) the extent, nature or amount of any of the assets
or liabilities of the Partnership or the Two Park Partnership,
(k) the enforceability of the partnership agreement for the
Partnership or the Two Park Partnership, (l) the absence or
existence of any disputes regarding the partnership agreements
for the Partnership or the Two Park Partnership (including,
without limitation, disputes regarding tax matters), or (m) any
other matter or thing affecting or related to the 2 Park
Interests, the 2 Park Real Estate and Related Interests, or the
transactions contemplated hereby, except as and solely to the
extent herein specifically set forth. Subject to Section 10
hereof, Purchaser agrees to accept the tangible items of the
550/330 Property and 2 Park Real Estate and Related Interests on
an "As-Is" basis, in their present condition, subject to
reasonable use, wear, tear and natural deterioration during the
Contract Period.
9.3. Certain Conditions Relating to ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇. Subject to Section 7.1(B)
hereof, Purchaser shall have no obligation to consummate the
transaction contemplated hereby unless each of the following
statements are true as of the date hereof:
A. (i) 550/330 Seller is a limited partnership, duly
organized, validly existing and in good standing under the laws
of the State of New York, (ii) 550/330 Seller has the partnership
power and authority to own and operate the 550/330 Property and
execute and deliver, and perform its obligations under, this
Agreement, and (iii) 550/330 Seller's execution and delivery of
this Agreement, and the performance of 550/330 Seller's
obligations hereunder, have been authorized by all necessary
partnership action on the part of 550/330 Seller;
B. no assessments, special assessments or improvement
district assessments have become a lien on the 550/330 Property
(other than (i) ordinary real estate taxes imposed in respect of
the 550/330 Property that are not delinquent, and (ii) with
regard to the 330 Property, any charges, assessments, levies, or
other sums imposed pursuant to the requirements of the ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ that are not delinquent);
C. 550/330 Seller has not received an official notice
of any Violations affecting the Mamaroneck Real Estate or the 330
Real Estate other than those listed on Exhibit "T" attached
hereto and made a part hereof;
D. (i) the copies of the Mamaroneck Ground Leases
attached as Exhibit "V-1" hereto and made a part hereof are true,
correct, and complete; and (ii) the copy of the 330 Ground Lease
attached as Exhibit "V-2" hereto and made a part hereof is true,
correct, and complete;
E. the Mamaroneck Ground Leases and the 330 Ground
Lease are in full force and effect, and 550/330 Seller as lessee
under the Mamaroneck Ground Leases and the 330 Ground Lease is
not in default of any of its obligations thereunder which has not
been cured;
F. to 550/330 Seller's knowledge, there has been no
default by the landlord under either of the Mamaroneck Ground
Leases or the 330 Ground Lease which has not been cured;
G. (i) the only Mamaroneck Space Leases in effect as
of the date hereof are listed on Exhibit "W-1" attached hereto
and made a part hereof, and (ii) the only 330 Space Leases in
effect as of the date hereof are listed on Exhibit "W-2" attached
hereto and made a part hereof;
H. the copies of the Mamaroneck Space Leases and 330
Space Leases heretofore delivered to Purchaser by or on behalf of
550/330 Seller are true, correct, and complete;
I. (i) the copies of the current rent roll for the
Mamaroneck Property attached as Exhibit "W-1" hereto and made a
part hereof is true, correct, and complete; and (ii) the copy of
the current rent roll for the 330 Property attached as Exhibit "W-
2" hereto and made a part hereof is true, correct, and complete;
J. (i) the Mamaroneck Space Leases listed on Exhibit
"W-1" attached hereto are in full force and effect, and except as
otherwise indicated on Exhibit "X-1" attached hereto and made a
part hereof, 550/330 Seller as lessor under such Mamaroneck Space
Leases is not in default of any of its obligations to any
Mamaroneck Tenants which have not been cured, and (ii) the 330
Space Leases listed on Exhibit "W-2" attached hereto are in full
force and effect, and except as otherwise indicated on Exhibit "X-
2" attached hereto and made a part hereof, 550/330 Seller as
lessor under such 330 Space Leases is not in default of any of
its obligations to any 330 Tenants which have not been cured;
K. (i) the fixed rent and additional rent due to
550/330 Seller under the Mamaroneck Space Leases currently in
effect are being billed to Mamaroneck Tenants in accordance with
the schedule set forth on Exhibit "W-1" attached hereto and made
a part hereof, (ii) fixed rent and additional rent due to 550/330
Seller under the 330 Space Leases currently in effect are being
billed to 330 Tenants in accordance with the schedule set forth
on Exhibit "W-2" attached hereto and made a part hereof, (iii) no
Mamaroneck Tenant is in arrears in the payment of rent for more
than the current calendar month, except as set forth on Exhibit
"X-1" attached hereto and made a part hereof, (iv) no 330 Tenant
is in arrears in the payment of rent for more than the current
calendar month, except as set forth on Exhibit "X-2" attached
hereto and made a part hereof, (iv) no Mamaroneck Tenant is
entitled to "free" rent, rent concessions, rebates, rent
abatements, set-offs, or offsets against rent or tenant
improvement allowances except, in each case, as set forth in the
applicable Mamaroneck Space Lease, and no Mamaroneck Tenant
claims a right to any of the foregoing, except as set forth on
Exhibit "Z-1" attached hereto and made a part hereof, and (v) no
330 Tenant is entitled to "free" rent, rent concessions, rebates,
rent abatements, set-offs, or offsets against rent or tenant
improvement allowances except, in each case, as set forth in the
applicable 330 Space Lease, and no 330 Tenant claims a right to
any of the foregoing, except as set forth on Exhibit "Z-2"
attached hereto and made a part hereof;
L. [intentionally omitted]
M. (i) no brokerage commissions will be due after the
Closing either (a) upon any extension or renewal of, or election
of a Mamaroneck Tenant not to exercise any cancellation rights
under, any Mamaroneck Space Lease, or (b) upon the exercise by
the landlord or Mamaroneck Tenant under the applicable Mamaroneck
Space Lease of options contained therein to lease additional
space in the Mamaroneck Improvements, except in either case as
set forth on Exhibit "AA-1" attached hereto and made a part
hereof, and (ii) no brokerage commissions will be due after the
Closing either (a) upon any extension or renewal of, or election
of a 330 Tenant not to exercise any cancellation rights under,
any 330 Space Lease, or (b) upon the exercise by the landlord or
330 Tenant under the applicable 330 Space Lease of options
contained therein to lease additional space in the 330
Improvements, except in either case as set forth on Exhibit "AA-
2" attached hereto and made a part hereof;
N. (i) there is no money or other security, including
letters of credit, deposited by Mamaroneck Tenants with 550/330
Seller as lessor under the current Mamaroneck Space Leases to
secure performance of Mamaroneck Tenants' obligations thereunder,
other than as set forth on Exhibit "BB-1" attached hereto and
made a part hereof, and (ii) there is no money or other security,
including letters of credit, deposited by 330 Tenants with
550/330 Seller as lessor under the current 330 Space Leases to
secure performance of 330 Tenants' obligations thereunder, other
than as set forth on Exhibit "BB-2" attached hereto and made a
part hereof;
O. 550/330 Seller is not a party to any management,
brokerage, service, or maintenance contracts or collective
bargaining or other union agreements which, in each case, (i)
affect the Mamaroneck Property and which remain executory as of
the date hereof, except as set forth on Exhibit "CC-1" attached
hereto and made a part hereof (any management, brokerage,
service, or maintenance contract, or collective bargaining or
other union agreements, which, in each case, affect the
Mamaroneck Property, being referred to herein as "Mamaroneck
Third-Party Contracts"), or (ii) affect the 330 Property and
which remain executory as of the date hereof, except as set forth
on Exhibit "CC-2" attached hereto and made a part hereof (any
management, brokerage, service, or maintenance contract, or
collective bargaining or other union agreements, which, in each
case, affect the 330 Property, being referred to herein as "330
Third-Party Contracts");
P. (i) there are no employees employed by 550/330
Seller in connection with the Mamaroneck Property as of the date
hereof who are members of any labor union other than the members
of Local 32B/32J of the Building Service Employees International
Union, AFL-CIO, listed on Exhibit "DD-1" attached hereto and made
a part hereof, and (ii) there are no employees employed by
550/330 Seller in connection with the 330 Property as of the date
hereof who are members of any labor union other than the members
of Local 32B/32J of the Building Service Employees International
Union, AFL-CIO and the member of Local 94-94A-94B of the
International Union of Operating Engineers, AFL-CIO listed on
Exhibit "DD-2" attached hereto and made a part hereof;
Q. 550/330 Seller is not a party to any pending
action, suit, condemnation or eminent domain proceeding, or other
litigation or proceeding with respect to the 550/330 Property,
and has not received any notice of any threatened investigation,
action, or proceeding, in either case reasonably likely to have
an adverse effect on 550/330 Seller's ability to close or on the
550/330 Property; and
R. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby by 550/330 Seller does not violate any provision of, or
cause a default under, or result in the acceleration of any
obligation under, any agreement to which 550/330 Seller is a
party or any law, statute, rule, ordinance, regulation or
requirement by which 550/330 Seller or the properties, assets,
business or operations of 550/330 Seller may be bound or
affected; except to the extent contemplated by the Settlement
Agreement, do not require the consent or approval of any court,
administrative or governmental authority; and do not result in
the creation or imposition of any lien or equity of any kind
whatsoever upon, or give to any other person any interest or
right (including any right of termination or cancellation) in or
with respect to, any agreement to which 550/330 Seller are a
party or the business or operations of 550/330 Seller or any
properties or assets which are material to the ownership of the
550/330 Property.
9.4. Certain Conditions Relating to ▇ ▇▇▇▇ ▇▇▇▇▇▇.
Subject to Section 7.1(B) hereof, Purchaser shall have no
obligation to consummate the transaction contemplated hereby
unless each of the following statements are true in all material
respects as of the date hereof:
A. Excepting only ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (i) each 2 Park
Seller is duly organized, validly existing and in good standing
under the laws of the state of its organization, (ii) each 2 Park
Seller has the power and authority to execute and deliver, and
perform its obligations under, this Agreement, and (iii) each 2
Park Seller's execution and delivery of this Agreement, and the
performance of its obligations hereunder, has been authorized by
all necessary action on the part of each 2 Park Seller;
B. Each 2 Park Seller is not a party to any pending
action, suit, condemnation or eminent domain proceeding, or other
litigation or proceeding other than the pending class action
described on Exhibit "R" attached hereto, and has not received
any notice of any threatened investigation, action, or proceeding
(other than such class action), in either case reasonably likely
to have a materially adverse effect on each 2 Park Seller's
ability to close the transaction contemplated hereby;
C. (i) 550/330 Seller, NY Real Estate Services 1
Inc., and Mendik RELP Corporation are the only general partners,
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the sole limited partner, comprising the
Partnership, (ii) the Partnership and B&B Park Avenue L.P. are
the only general partners comprising the Two Park Partnership,
and (iii) the Partnership and the Two Park Partnership do not
currently have, and have not heretofore employed, any employees;
and
D. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby by each 2 Park Seller do not violate any provision of, or
cause a default under, or result in the acceleration of any
obligation under, any agreement to which each 2 Park Seller is a
party or any law, statute, rule, ordinance, regulation or
requirement by which each 2 Park Seller or the properties,
assets, business or operations of each 2 Park Seller may be bound
or affected; do not require the consent or approval of any court,
administrative or governmental authority; and do not result in
the creation or imposition of any lien or equity of any kind
whatsoever upon, or give to any other person any interest or
right (including any right of termination or cancellation) in or
with respect to, any agreement to which each 2 Park Seller is a
party or the business or operations of each 2 Park Seller or any
properties or assets which are material to the ownership of the 2
Park Interests; provided, however, that each 2 Park Seller
expressly makes no representations with regard to any provisions
of the partnership agreement of the Two Park Partnership, and
their compliance with any rights, obligations, covenants, or
conditions contained therein.
9.5. Purchaser Representations. Purchaser represents
to 550/330 Seller and 2 Park Sellers that, as of the date hereof,
(i) Purchaser is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of
Delaware, (ii) Purchaser has the requisite power and authority to
conduct its business and execute and deliver, and perform its
obligations under, this Agreement, (iii) Purchaser's execution
and delivery of this Agreement, and the performance of
Purchaser's obligations hereunder, have been authorized by all
necessary action on the part of Purchaser (iv) VRT is a business
trust duly formed, validly existing and in good standing under
the laws of the State of Maryland, (v) when issued at the
Closing, the Shares will be listed on the New York Stock
Exchange, (vi) when issued at the Closing, the Shares will be
fully paid and non-assessable and (vii) except as may be
disclosed in any filing made by Vornado or the Operating
Partnership with the SEC (including, without limitation, the
financial statements contained therein), (A) there exists no
litigation pending against VRT or any entity in which VRT,
directly or indirectly, owns or controls 50% or more of the
voting or economic interests, or, to the knowledge of Purchaser,
threatened, which in either case, if decided adversely to VRT or
such entity, would have a material adverse effect on the
business, financial condition or results of operations of VRT and
all of the entities in which VRT, directly or indirectly, owns or
controls 50% or more of the voting or economic interests, taken
as a whole, and (B) neither VRT nor any such entity has any
liabilities or obligations which individually, or in the
aggregate, would have a material adverse effect on the business,
financial condition or results of operations of VRT and all of
the entities in which VRT, directly or indirectly, owns or
controls 50% or more of the voting or economic interests, taken
as a whole. The provisions of this Section 9.5 shall survive the
Closing.
9.6. Certain Representations of each 2 Park Seller.
Each 2 Park Seller hereby represents and warrants to Purchaser
that as of the date hereof (i) such 2 Park Seller owns its
respective interest as a partner in the Partnership and will
transfer such interest free and clear of all liens, security
interests, and other encumbrances on the Closing Date, and (ii)
the Partnership has not heretofore engaged in any business other
than its ownership of a partnership interest in the Two Park
Partnership and the Partnership has no liabilities other than
those arising by virtue of its ownership of a partnership
interest in the Two Park Partnership. Each 2 Park Seller's
liability for a misrepresentation made by such 2 Park Seller
under this Section 9.6 shall survive the Closing.
10. Broker.
A. Purchaser and 550/330 Seller each represent and
warrant to the other that such party has not dealt with any
person, firm, corporation, or any other entity acting as broker
in connection with the transaction contemplated hereby, except,
with respect to the Mamaroneck Property, Newmark & Company Real
Estate, Inc. ("Mamaroneck Broker"). 550/330 Seller shall pay
Mamaroneck Broker a commission in accordance with the terms of a
separate agreement between 550/330 Seller and Mamaroneck Broker.
Purchaser shall indemnify 550/330 Seller against, and defend
550/330 Seller and save 550/330 Seller harmless from any and all
claims, and the reasonable expenses related thereto (including
reasonable attorneys' fees and disbursements), for brokerage
commissions, fees or other compensation made by any person, firm,
corporation or any other entity which dealt with Purchaser as
broker in connection herewith (other than, with respect to the
Mamaroneck Property, the Mamaroneck Broker). 550/330 Seller
shall indemnify Purchaser against, and defend Purchaser and save
Purchaser harmless from any and all claims, and the reasonable
expenses related thereto (including reasonable attorneys' fees
and disbursements), for brokerage commissions, fees or other
compensation made by any person, firm, corporation or any other
entity which dealt with 550/330 Seller as broker in connection
herewith (including, without limitation, with respect to the
Mamaroneck Property, the Mamaroneck Broker).
B. Purchaser and 2 Park Sellers each represent and
warrant to the other that such party has not dealt with any
person, firm, corporation, or any other entity acting as broker
in connection with the sale of the 2 Park Interests pursuant
hereto. Purchaser and 550/330 Seller shall indemnify each other
against, and defend and save each other harmless from any and all
claims, and the reasonable expenses related thereto (including
reasonable attorneys' fees and disbursements), for brokerage
commissions, fees or other compensation made by any person, firm,
corporation or any other entity claiming to have dealt with such
party in connection herewith.
C. The provisions of this Section 10 shall survive
the Closing and any termination of this Agreement.
11. Condemnation and Destruction.
11.1. Condemnation of Property.
A. If, prior to the Closing Date, either (x) all of
the Mamaroneck Real Estate, the 330 Real Estate, or a Material
Portion of either is taken by eminent domain or 550/330 Seller
receives official notice of the institution of a proceeding
therefor (such taking or such proceeding being referred to herein
as a "550/330 Taking"), or (y) the interest of 550/330 Seller as
lessee under the Mamaroneck Ground Leases and/or the 330 Ground
Lease is terminated as a result of a 550/330 Taking, then 550/330
Seller shall promptly notify Purchaser thereof and Purchaser may
elect to terminate this Agreement (I) as to the Mamaroneck
Property or the 330 Property affected by such 550/330 Taking, or
(II) in its entirety, in either case upon notice to 550/330
Seller given not later than ten (10) business days after
Purchaser's receipt of 550/330 Seller's notice (as to which ten
(10) business day period time is of the essence). If this
Agreement is terminated with respect to the Mamaroneck Property
only, as aforesaid, then (i) the 550/330 Purchase Price shall be
reduced by the amount of the Mamaroneck Purchase Price, (ii) no
party shall have thereafter any continuing rights, duties or
obligations hereunder with respect to the Mamaroneck Property
(except that the parties' obligations under Section 10 and
Section 15.9 hereof shall survive said termination), and (iii)
said termination shall not affect Purchaser's or Seller's
obligations hereunder with respect to the 2 Park Interest or the
330 Property nor entitle Purchaser to the return of the Letter of
Credit as a result thereof. If this Agreement is terminated with
respect to the 330 Property only, as aforesaid, then (i) the
550/330 Purchase Price shall be reduced by the amount of the 330
Purchase Price, (ii) no party shall have thereafter any
continuing rights, duties or obligations hereunder with respect
to the 330 Property (except that the parties' obligations under
Section 10 and Section 15.9 hereof shall survive said
termination), and (iii) said termination shall not affect
Purchaser's or Seller's obligations hereunder with respect to the
2 Park Interest or the Mamaroneck Property nor entitle the
Purchaser to the return of the Letter of Credit as a result
thereof. If this Agreement is terminated in its entirety, as
aforesaid, then Purchaser shall be entitled to the return of the
Letter of Credit, and thereupon, no party shall have thereafter
any continuing rights, duties or obligations hereunder (except
that the parties' respective obligations under Section 10 and
Section 15.9 hereof shall survive said termination).
B. If Purchaser does not elect to terminate this
Agreement as aforesaid, or if the 550/330 Taking is not of a
Material Portion of the Mamaroneck Real Estate and/or the 330
Real Estate, then the Closing shall nevertheless occur without
abatement of the 550/330 Purchase Price, but 550/330 Seller shall
assign and turn over to Purchaser at the Closing, and Purchaser
is entitled to receive and keep, all awards for such 550/330
Taking (less the amount theretofore paid or incurred by 550/330
Seller to restore or secure the Mamaroneck Improvements and/or
the 330 Improvements after a 550/330 Taking that does not involve
all of the Mamaroneck Real Estate or the 330 Real Estate, as the
case may be).
C. For purposes of this Section 11.1, a "Material
Portion" is deemed to be (i) with respect to the Mamaroneck
Property, a portion of the Mamaroneck Real Estate which has an
estimated value exceeding ten percent (10%) of the Mamaroneck
Purchase Price, or (ii) with respect to the 330 Property, a
portion of the 330 Real Estate which has an estimated value
exceeding ten percent (10%) of the 330 Purchase Price.
11.2. Destruction.
A. If, prior to the Closing Date, either (x) a
Material Casualty occurs, or (y) the interest of 550/330 Seller
as lessee under the Mamaroneck Ground Leases and/or the 330
Ground Lease is terminated as a result of a fire or other
casualty, then 550/330 Seller shall promptly notify Purchaser
thereof and Purchaser may elect to terminate this Agreement (I)
as to the Mamaroneck Property or the 330 Property affected by
such occurrence or (II) in its entirety, in either case upon
notice to 550/330 Seller given not later than ten (10) business
days after Purchaser's receipt of 550/330 Seller's notice (as to
which ten (10) business day period time is of the essence). If
this Agreement is terminated with respect to the Mamaroneck
Property only, as aforesaid, then (i) the 550/330 Purchase Price
shall be reduced by the amount of the Mamaroneck Purchase Price,
(ii) no party shall have thereafter any continuing rights, duties
or obligations hereunder with respect to the Mamaroneck Property
(except that the parties' obligations under Section 10 and
Section 15.9 hereof shall survive said termination), and (iii)
said termination shall not affect Seller's or Purchaser's
obligations hereunder with respect to the 2 Park Interest or the
330 Property nor entitle Purchaser to the return of the Letter of
Credit as a result thereof. If this Agreement is terminated with
respect to the 330 Property only, as aforesaid, then (i) the
550/330 Purchase Price shall be reduced by the amount of the 330
Purchase Price, (ii) no party shall have thereafter any
continuing rights, duties or obligations hereunder with respect
to the 330 Property (except that the parties' obligations under
Section 10 and Section 15.9 hereof shall survive said
termination), and (iii) said termination shall not affect
Seller's or Purchaser's obligations hereunder with respect to the
2 Park Interest or the Mamaroneck Property nor entitle Purchaser
to the return of the Letter of Credit as a result thereof. If
this Agreement is terminated in its entirety, as aforesaid, then
Purchaser shall be entitled to the return of the Letter of
Credit, and thereupon, no party shall have thereafter any
continuing rights, duties or obligations hereunder (except that
the parties' respective obligations under Section 10 and Section
15.9 hereof shall survive said termination).
B. If Purchaser does not elect to terminate this
Agreement, as aforesaid, or if there is damage to or destruction
to the Mamaroneck Improvements or the 330 Improvements which does
not, in each instance, constitute a Material Casualty, then
550/330 Seller shall proceed to the Closing, Purchaser shall
accept title to the Mamaroneck Real Estate or the 330 Real Estate
affected by the Material Casualty in its destroyed or damaged
condition, and 550/330 Seller shall assign and turn over, and
Purchaser is entitled to receive and keep, all insurance proceeds
paid or to be paid and relating to the damage to the Mamaroneck
Improvements and/or the 330 Improvements in each case caused by
such Material Casualty (less the amount theretofore paid or
incurred by 550/330 Seller to restore or secure the Mamaroneck
Improvements and/or the 330 Improvements after such casualty)
(such proceeds, less such amount, being referred to herein as the
"550/330 Proceeds"), without abatement of the 550/300 Purchase
Price.
C. Notwithstanding the foregoing, if the 550/330
Proceeds available are insufficient to cover the cost of such
damage or destruction, then 550/330 Seller, at the Closing, shall
pay to Purchaser or credit against the 550/330 Purchase Price an
amount equal to the lesser of (i) the amount of the deductible,
if any, specified in the 550/330 Insurance Policy, or (ii) the
excess of the cost necessary to cover such damage or destruction
over the 550/330 Proceeds available therefor. 550/330 Seller
shall maintain in force and effect until the Closing Date the
existing all-risk casualty insurance policies on the Mamaroneck
Improvements, as described in Exhibit "EE-1" attached hereto and
made a part hereof, and on the 330 Improvements, as described in
Exhibit "EE-2" attached hereto and made a part hereof (the
"550/330 Insurance Policies").
D. For purposes hereof, a "Material Casualty" is
deemed to have occurred if (i) with respect to the Mamaroneck
Property, a fire or other casualty damages or destroys a portion
of the Mamaroneck Improvements which has an estimated value
exceeding ten percent (10%) of the Mamaroneck Purchase Price, or
(ii) with respect to the 330 Property, a fire or other casualty
damages or destroys a portion of the 330 Improvements which has
an estimated value exceeding ten percent (10%) of the 330
Purchase Price.
11.3. Rejection of Uniform Act. Purchaser and
550/330 Seller hereby agree that the provisions of Section 5-1311
of the General Obligations Law shall have no effect with respect
to the Mamaroneck Property, the 330 Property, or this Agreement,
it being agreed that Purchaser's and 550/330 Seller's sole and
exclusive rights and obligations in the event of any casualty to
the Mamaroneck Property or 330 Property or any taking of all or
any part thereof are contained in this Section 11.
12. Operation during the Contract Period.
12.1. 550/330 Space Leases.
A. Subject to Section 11 hereof, 550/330 Seller,
during the period commencing on the date hereof and ending on the
Closing Date (the "Contract Period"), shall keep and maintain the
Mamaroneck Office Property and the 330 Office Property in the
manner presently maintained and operated by 550/330 Seller
(excepting only ordinary wear and tear and natural deterioration
and any maintenance which Mamaroneck Tenants and 330 Tenants are
obligated to provide). 550/330 Seller shall not (i) enter into
leases or other occupancy agreements with Mamaroneck Tenants, 330
Tenants, or any other person or entity for space in the
Mamaroneck Improvements or 330 Improvements, or (ii) terminate
any Mamaroneck Space Lease or 330 Space Lease, or (iii) amend,
modify, renew, or extend any Mamaroneck Space Lease or 330 Space
Lease (any action of the nature described in clauses (i), (ii),
and (iii) above being collectively referred to herein as the "New
Space Lease Actions"), other than, in each case, with the consent
of Purchaser, not to be unreasonably withheld; provided, however,
that (a) if Purchaser fails to object to any New Space Lease
Action within ten (10) days after 550/330 Seller gives Purchaser
notice thereof, then Purchaser is deemed to have consented to
such New Space Lease Action, and (b) 550/330 Seller may terminate
any Mamaroneck Space Lease or 330 Space Lease during the Contract
Period by reason of the Tenant's material default thereunder
(beyond the expiration of any applicable grace period) without
Purchaser's prior consent.
B. Purchaser shall pay to 550/330 Seller at the
Closing, in addition to the 550/330 Purchase Price and the other
amounts then due to 550/330 Seller hereunder, an amount equal to
the costs incurred by 550/330 Seller in connection with any New
Space Lease Actions to which Purchaser consents or is deemed to
have consented as contemplated by this Section 12.1 (including,
without limitation, brokerage commissions, legal fees, takeover
expenses, the costs of work performed by or on behalf of 550/330
Seller in the Mamaroneck Office Property or the 330 Office
Property and work allowances incurred in connection with such New
Space Lease Actions); provided, however, that such payment to be
made by Purchaser to 550/330 Seller at the Closing shall be
reduced to the extent that as of the Closing Date such costs have
been amortized, in equal monthly installments, over the period of
time during which rent is payable by the applicable Mamaroneck
Tenant or 330 Tenant in connection with the applicable New Space
Lease Action. Purchaser, during the Contract Period, shall not
contact, speak to, or commence any negotiations or discussions
with any Tenant, prospective Tenant, or the lessors under the
Mamaroneck Ground Leases or 330 Ground Lease without, in each
case, the prior consent of 550/330 Seller, not to be
unreasonably withheld or delayed. Nothing contained in this
Section 12.1 abrogates Purchaser's obligation to accept the
Mamaroneck Property and the 330 Property in the condition
described in Section 9.2 hereof. The amount paid by Purchaser
under this Section 12.1(B) shall not also be included in the
apportionments described in Section 6.13 hereof.
C. 550/330 Seller, during the Contract Period, (i)
shall perform all of its material obligations as lessor under
each 550/330 Space Lease, provided that the applicable 550/330
Tenant thereunder is not in default, (ii) shall enforce all of
the material obligations of each 550/330 Tenant under each
550/330 Space Lease, and (iii) shall not apply all or any part of
the security deposited by any 550/330 Tenant under a 550/330
Space Lease unless such 550/330 Tenant has vacated the space
leased to it thereunder and 550/330 Seller has terminated such
550/330 Space Lease.
12.2. Ground Leases. 550/330 Seller, during the
Contract Period, shall not terminate, amend, modify, renew, or
extend the Mamaroneck Ground Leases or the 330 Ground Lease,
other than, in each case, with the consent of Purchaser, not to
be unreasonably withheld or delayed.
12.3. 550/330 Third-Party Contracts. 550/330
Seller, during the Contract Period, may enter into Mamaroneck
Third-Party Contracts and 330 Third-Party Contracts to the extent
reasonably necessary for the operation of the Mamaroneck Property
and 330 Property during the Contract Period, provided that each
such Mamaroneck Third-Party Contract and 330 Third-Party Contract
is terminable by 550/330 Seller without penalty or premium on not
more than thirty (30) days' prior notice to the counterparty
thereunder (it being understood, however, that 550/330 Seller,
during the Contract Period, may enter into Mamaroneck Third-Party
Contracts and 330 Third-Party Contracts that constitute brokerage
agreements in connection with New Space Lease Actions to which
Purchaser consents or is deemed to have consented under Section
12.1 hereof without such brokerage agreements being terminable on
thirty (30) days' prior notice).
12.4. 550/330 Personal Property. 550/330 Seller,
during the Contract Period, (i) shall not remove either (x) from
the Mamaroneck Property any item of Mamaroneck Personal Property
included in the sale, or (y) from the 330 Property any item of
330 Personal Property included in the sale, unless such item, in
each case, is replaced with a similar item of comparable utility
and value, and (ii) shall, if required and upon request of
Purchaser, promptly furnish to Purchaser written authorization to
make any necessary search for the purposes of determining whether
notes or notices of Violations have been noted or issued with
respect to the Personal Property or liens have attached thereto.
12.5. 550/330 Contract Rights. 550/330 Seller,
during the Contract Period, (i) shall exercise all rights and
comply with all obligations under the Mamaroneck Contract Rights
and the 330 Contract Rights in substantially the same manner as
it generally did prior to the date hereof, and (ii) shall not
amend or modify any permits with respect to the Mamaroneck Office
Property or the 330 Office Property, except to comply with
applicable law or insurance requirements.
12.6. 550/330 Tax Assessment Proceedings. 550/330
Seller, during the Contract Period, shall not withdraw, settle,
or otherwise compromise any protest or reduction proceeding
affecting real estate taxes assessed against the 550/330 Real
Estate for any fiscal period in which the Closing Date is to
occur or any subsequent fiscal period without the consent of
Purchaser.
12.7. 2 Park Partnership. Each of the 2 Park
Sellers, during the Contract Period, shall exercise all of its
rights and comply with all of its obligations as a partner of the
Partnership so as to cause the Partnership to manage the 2 Park
Partnership in substantially the same manner as the Partnership
generally did prior to the date hereof.
13. Notices.
A. All notices, demands, requests or other
communications (collectively, "Notices") made pursuant to, under
or by virtue of this Agreement shall be in writing and sent to
the party or parties to whom or to which the Notice is being
sent, by (x) certified or registered mail, return receipt
requested, or (y) hand delivery with receipt acknowledged in
writing, or (z) reputable overnight delivery service (such as
Federal Express), in each case as follows:
To 550/330 Seller:
Mendik Real Estate Limited Partnership
c/o Mendik RELP Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
Mendik Real Estate Limited Partnership
c/▇ ▇▇▇▇▇▇ Brothers, Inc.
Diversified Asset Group
29th Floor
3 World Financial Center
New York, New York 10285
Attn.: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, President
and a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
and a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
To 2 Park Sellers:
Mendik Real Estate Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Mendik RELP Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
NY Real Estate Services 1 Inc.
c/▇ ▇▇▇▇▇▇ Brothers, Inc.
Diversified Asset Group
29th Floor
3 World Financial Center
New York, New York 10285
Attn.: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with, in each case, a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
and a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
To Purchaser:
Vornado Realty L.P.
c/o Vornado Realty Trust
Park 80 West, Plaza II, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President
and with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Israel, Esq.
B. All Notices are deemed given (x) three (3)
business days after the date when such Notice is sent, if such
Notice is sent by certified or registered mail, or (y) when
received, if such Notice is delivered by hand, or (z) on the next
business day, if such Notice is given by overnight delivery
service. Any party may change its address for purposes hereof by
giving a Notice to the other parties in accordance with this
Section 13.
14. Defaults.
14.1. Purchaser's Default. Subject to the terms of
this Section 14.1, if Purchaser either (x) defaults in respect of
its obligations to Sellers hereunder, or (y) has made a material
misrepresentation to Sellers hereunder, then Sellers, as their
sole remedy, may elect, at their option, either to (i) terminate
this Agreement by notice to Purchaser, or (ii) waive such
default(s) or misrepresentation(s) and proceed to the Closing.
If this Agreement is terminated as aforesaid, then Sellers may
(A) present the Letter of Credit for payment (if the Letter of
Credit has not previously been presented for payment in
accordance with Section 16 hereof) and retain the proceeds
thereof, or (B) retain the proceeds of the Letter of Credit (if
the Letter of Credit has been previously presented for payment in
accordance with Section 16 hereof), as the case may be, and
thereupon, subject to the terms of this Section 14.1, no party
shall have any continuing rights, duties or obligations hereunder
with respect to either the 550/330 Property, the Partnership, or
the 2 Park Interests; provided, however, that the parties'
obligations under Section 10 and Section 15.9 hereof shall
survive said termination. Subject to the other provisions of
this Agreement, the provisions of this Section 14.1 shall not
limit Sellers' rights against Purchaser after the Closing in
respect of any obligation or liability of Purchaser hereunder
that survives the Closing. Nothing contained in this Section
14.1 limits Purchaser's personal liability for Purchaser's
failure (x) to deposit the Letter of Credit with Seller on or
prior to the date hereof pursuant to Section 3.1 hereof, or (y)
to make a payment to Sellers in the amount of Two Million Five
Hundred Thousand Dollars ($2,500,000) pursuant to Section 3.1
hereof as and to the extent due thereunder.
14.2. Sellers' Default. If any Seller defaults in
any material respect hereunder, then Purchaser, as its sole
remedy, may, at its option, either (x) terminate this Agreement,
or (y) bring an action against such defaulting Seller to seek
specific performance of such defaulting Seller's obligations
hereunder to cure such default and to consummate the transaction
contemplated hereby. If any Seller makes a material
misrepresentation to Purchaser hereunder, then Purchaser, as its
sole remedy, may, at its option, terminate this Agreement. If
Purchaser exercises its rights to terminate this Agreement as
aforesaid, then Sellers promptly shall return the Letter of
Credit (or the proceeds thereof, if theretofore presented for
payment) to Purchaser, and thereupon, no party shall have any
continuing rights, duties, or obligations hereunder with respect
to either the 550/330 Property or the 2 Park Interests (except
that the parties' obligations under Section 10 and Section 15.9
hereof shall survive said termination); provided, however, that
if Purchaser exercises its right to terminate this Agreement as a
result of either (x) any Seller's intentional misrepresentation,
or (y) any Seller's fraud, then such Seller shall promptly pay to
Purchaser an amount equal to the out-of-pocket costs and expenses
incurred by Purchaser in connection with the transactions
contemplated by this Agreement (it being understood that (I) such
amount shall not exceed Five Hundred Thousand Dollars ($500,000),
and (II) Seller shall be deemed to have made an intentional
misrepresentation for purposes of determining whether Purchaser
is entitled to such reimbursement for such out-of-pocket costs
and expenses if Seller (A) as of the date hereof, has actual
current knowledge that any of the statements set forth in Section
9.3 are untrue in any material respect as of the date hereof, and
(B) has heretofore intentionally failed to advise Purchaser
thereof). Subject to the other provisions of this Agreement, the
provisions of this Section 14.2 shall not limit Purchaser's
rights against Sellers after the Closing in respect of any
obligation or liability of Sellers hereunder that survives the
Closing.
14.3. Limitation of Liability with Respect to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇. Purchaser shall look solely to the 2 Park
Interests owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as well as the net proceeds
from the sale of thereof pursuant to this Agreement, and not to
any other assets of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to enforce its rights
against ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ hereunder.
15. Additional Provisions.
15.1. Entire Agreement. This Agreement contains
all of the terms agreed upon between the parties with respect to
the subject matter hereof, and all understandings and agreements
heretofore had or made between the parties hereto with respect to
the subject matter hereof are merged in this Agreement which
alone fully and completely expresses the agreement of said
parties.
15.2. Amendments. This Agreement may not be
changed, modified, supplemented or terminated, nor may any
obligations hereunder be waived, except by an instrument executed
by the party hereto against whom enforcement thereof is sought.
15.3. Waiver. No waiver by any party hereto of any
failure or refusal by any other party to comply with its
obligations hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
15.4. Successors and Assigns. Subject to the
provisions of Section 15.7 hereof, the covenants, agreements,
representations, stipulations, and warranties herein contained
shall inure to the benefit of, and shall bind, the successors and
assigns of the respective parties hereto.
15.5. Partial Invalidity. If any term or provision
of this Agreement or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable,
then the remainder of this Agreement, or the application of such
term or provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Agreement
shall be valid and be enforced to the fullest extent permitted by
law.
15.6. Governing Law. This Agreement shall be
governed by, interpreted under, and construed and enforced in
accordance with, the laws of the State of New York applicable to
agreements made and to be performed wholly within said State.
15.7. Assignment. Purchaser shall not assign
Purchaser's interest in this Agreement without the joint prior
written consent of 550/330 Seller and 2 Park Sellers, except that
Purchaser shall have the right to assign all or a portion of
Purchaser's interest in this Agreement to one or more entities
that are 100% owned, directly or indirectly, by Purchaser. In
addition, without impairing any of Purchaser's obligations
hereunder, Seller, at the Closing, shall convey any of the
550/330 Property and the 2 Park Interests to one or more entities
that are 100% owned, directly or indirectly, by Purchaser,
provided that Purchaser gives notice thereof to Sellers not later
than the fifth (5th) business day before the Closing.
15.8. Paragraph Headings. The headings of the
various paragraphs of this Agreement have been inserted solely
for the purposes of convenience, are not part of this Agreement
and shall not be deemed in any manner to modify, explain, expand
or restrict any of the provisions of this Agreement.
15.9. No Recording or Notice of Pendency.
Purchaser shall not record this Agreement or any memorandum or
notice thereof nor shall Purchaser file any notice of pendency or
other instrument against the 550/330 Property or the 2 Park
Interests. The provisions of this Section 15.9 shall survive any
termination of this Agreement.
15.10. Further Assurances. 550/330 Seller, 2 Park
Sellers, and Purchaser, from and after the Closing Date, shall
take such reasonable actions from time to time as are reasonably
necessary to implement the provisions hereof (it being
understood, however, that the provisions of this Section 15.10
shall not expand either party's substantive rights or obligations
beyond the express provisions hereof). The provisions of this
Section 15.10 shall survive the Closing Date.
15.11. Counterparts. This Agreement may be executed
in counterparts, it being understood that all such counterparts,
taken together, shall constitute one and the same agreement.
16. Letter of Credit. If the Closing has not
theretofore occurred and this Agreement has not been theretofore
terminated pursuant to the terms hereof, then Purchaser shall
renew the Letter of Credit, from time to time, at least thirty
(30) days prior to the expiration thereof, and deliver to Sellers
a new Letter of Credit, or an endorsement to the then existing
Letter of Credit, and any other evidence reasonably required by
Sellers, to the effect that the then existing Letter of Credit
has been renewed for a period of at least six (6) months. If
Purchaser fails to renew the Letter of Credit as aforesaid, then
Sellers may present the Letter of Credit for payment prior to its
expiration and hold and apply the proceeds thereof in accordance
with the terms of this Agreement. If the Closing occurs, then,
at the Closing, Sellers shall deliver the Letter of Credit (or
the proceeds thereof, as the case may be) to Purchaser.
IN WITNESS WHEREOF, Sellers and Purchaser have duly
executed and delivered this Sale-Purchase Agreement on the date
first above written.
MENDIK REAL ESTATE LIMITED PARTNERSHIP,
By: Mendik RELP Corporation, general partner
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
By: NY Real Estate Services 1 Inc., general partner
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, President
MENDIK RELP CORPORATION
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
NY REAL ESTATE SERVICES 1 INC.
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, President
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
VORNADO REALTY L.P.
By: Vornado Realty Trust, general partner
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Vice President & Chief Financial Officer
VORNADO REALTY TRUST
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Vice President & Chief Financial Officer