EXHIBIT 10.18
-------------
PURCHASE AND SALE AGREEMENT
Between
NORTHSTAR 485 5TH HOLDING LLC
SELLER,
and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A., INC.
PURCHASER.
Premises:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
February 2, 2000
TABLE OF CONTENTS
Page
1. PURCHASE AND SALE...................................................... 1
2. PURCHASE PRICE AND DEPOSIT............................................. 2
3. STATUS OF THE TITLE.................................................... 4
4. TITLE INSURANCE, LIENS................................................. 5
5. APPORTIONMENTS......................................................... 7
6. PROPERTY NOT INCLUDED IN SALE.......................................... 12
7. COVENANTS.............................................................. 12
8. ASSIGNMENTS BY SELLER AND ASSUMPTIONS BY PURCHASER; SECURITY DEPOSITS;
EMPLOYEES.............................................................. 15
9. CONDITION OF THE PROPERTY.............................................. 16
10. REPRESENTATIONS AND WARRANTIES......................................... 17
11. DAMAGE AND DESTRUCTION................................................. 21
12. CONDEMNATION........................................................... 22
13. BROKERS AND ADVISORS................................................... 23
14. TAX REDUCTION PROCEEDINGS.............................................. 24
15. TRANSFER TAXES, RECORDING AND OTHER CHARGES............................ 24
16. DELIVERIES TO BE MADE ON THE CLOSING DATE.............................. 25
17. CLOSING DATE........................................................... 27
18. NOTICES................................................................ 27
19. DEFAULT BY PURCHASER OR SELLER......................................... 29
-i-
Page
----
20. FIRPTA COMPLIANCE.................................................... 29
21. INTENTIONALLY OMITTED................................................ 30
22. ENTIRE AGREEMENT..................................................... 30
23. AMENDMENTS........................................................... 30
24. WAIVER............................................................... 30
25. PARTIAL INVALIDITY................................................... 30
26. SECTION HEADINGS..................................................... 31
27. GOVERNING LAW........................................................ 31
28. PARTIES; ASSIGNMENT AND RECORDING.................................... 31
29. CONFIDENTIALITY AND PRESS RELEASES................................... 31
30. FURTHER ASSURANCES................................................... 32
31. THIRD PARTY BENEFICIARY.............................................. 32
32. JURISDICTION AND SERVICE OF PROCESS.................................. 32
33. WAIVER OF TRIAL BY JURY.............................................. 33
34. MISCELLANEOUS; DEFINITIONS........................................... 33
-ii-
Schedules
A. Description of the Land
B. Easements, Conditions, Restrictions and Encumbrances
C. List of Employees
C-1 Contracts or Agreements for the Provision of Building Services to Be
Terminated
D. List of Leases
E. List of Contracts
F. List of Security Deposits
G. Arrearage Schedule
H. Litigation
I. Violations
J. Employment Agreements
K. Environmental Reports
L. Engineering Reports
M. Tenant Inducement Costs
N. Leasing Commissions
O. Reports of All Pleadings in Connection with the Check Cashing Litigation
Exhibits
1. Form of Deed
2. Form of ▇▇▇▇ of Sale
3. Form of Notice to Tenants
4. Form of FIRPTA Affidavit
5. Form of Assignment and Assumption of Leases and Contracts
6. Form of General Assignment and Assumption Agreement
7. Form of First Amendment to Zoning Lot Development Agreement
-iii-
PURCHASE AND SALE AGREEMENT (this "Agreement") made as of the 2nd day
---------
of February, 2000 between NORTHSTAR 485 5TH HOLDING LLC , a Delaware limited
liability company, having an address at c/o NorthStar Capital Investment Corp.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Seller") and ▇▇▇▇▇
------
HILFIGER U.S.A., INC., a Delaware corporation, having an address at ▇▇ ▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Purchaser").
---------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller is the owner and holder of the fee simple estate in
and to that certain plot, piece and parcel of land (the "Land") known as 485
----
Fifth Avenue, New York, New York and more particularly described in Schedule A
----------
annexed hereto, together with the building and all other improvements
(collectively, the "Building") located on the Land (the Building and the Land
--------
are hereinafter sometimes collectively referred to as the "Premises");
--------
WHEREAS, Seller desires to cause the sale, assignment and transfer of
its interests in and to the Premises to Purchaser in accordance with the terms
and provisions of this Agreement, and Purchaser desires to purchase such
interests from Seller upon the terms more particularly set forth in this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto covenant and agree
as follows:
1. PURCHASE AND SALE.
-----------------
(a) Seller shall sell, assign and convey to Purchaser, and
Purchaser shall purchase and assume from Seller, subject to the terms and
conditions of this Agreement, all of Seller's right, title and interest in and
to and under (i) the Premises, (ii) the fixtures, furnishings, furniture,
equipment, machinery, inventory, appliances and other tangible and intangible
personal property owned by Seller and located at the Premises and used in
connection with the operation thereof (collectively, the "Personalty"); (iii)
----------
all leases, licenses and other occupancy agreements demising space at the
Premises, together with all amendments and modifications thereof and supplements
relating thereto (collectively, "Leases") and all service, maintenance, supply
------
and other agreements relating to the operation of the Premises, together with
all modifications and amendments thereof and supplements relating thereto, but
specifically excluding the contracts or agreements for the provision of building
services set forth on Exhibit C-1 (collectively, the "Contracts") in effect on
---------
the Closing Date (subject to Section 7 hereof); and (iv) if any, to any land
---------
lying in the bed of any street, road or avenue, opened or proposed, adjoining
the Premises to the center line thereof, including any right of Seller to any
unpaid award by reason of any taking by condemnation and/or for any damage to
the Premises by reason of change of grade of any street or highway. Seller shall
deliver at no
additional cost to Purchaser, at Closing (as hereinafter defined), or
thereafter, on demand, any documents that Purchaser may reasonably require for
the conveyance of such title and the assignment and collection of such award or
damages. The items described in clauses (i), (ii) (iii) and (iv) above shall be
referred to herein collectively as the "Property."
--------
(b) The parties hereto acknowledge and agree that the value of
the Personalty is de minimis and no part of the Purchase Price (as hereinafter
-- -------
defined) is allocable thereto.
2. PURCHASE PRICE AND DEPOSIT.
--------------------------
The purchase price to be paid by Purchaser to Seller for the Property
(the "Purchase Price") is THIRTY SEVEN MILLION, TWO HUNDRED FIFTY THOUSAND AND
--------------
NO/100 DOLLARS ($37,250,000), subject to apportionment as provided in Section 5
---------
below, payable as follows:
(a) Simultaneously with the execution of this Agreement by
Purchaser, Purchaser is delivering to Battle ▇▇▇▇▇▇ LLP, as escrow agent (the
"Escrow Agent") to be held in escrow in accordance with Section 21 hereof, the
------------
sum of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00) (such sum as same may be
increased pursuant to Section 17 hereof, and all interest accrued thereon,
collectively, the "Deposit") by unendorsed bank check issued by a bank which is
-------
a member of the New York Clearinghouse Association and payable directly to the
order of Escrow Agent or by wire transfer of immediately available funds to an
account (the "Escrow Account") designated and maintained by Escrow Agent. Except
--------------
as otherwise expressly provided herein, the Deposit shall be non-refundable.
(b) Upon receipt by Escrow Agent of the Deposit, to the extent
possible, Escrow Agent shall cause the same to be invested in 30-day (or
shorter) United States Treasury instruments. Any amount that cannot be so
invested (not to exceed $100,000) may be deposited in a federally insured
interest-bearing account selected by Escrow Agent (it being agreed that Escrow
Agent shall not be liable for the amount of any interest or loss of principal
that results from any such investments). If the Closing occurs, the interest on
the Escrow Deposit, if any, shall be paid to Seller (without credit against the
Purchase Price) and, if the Closing does not occur and this Agreement is
terminated, then the interest earned on the Escrow Deposit shall be paid to the
party entitled to receive the Deposit as provided in this Agreement.
(c) On the Closing Date, Purchaser shall pay to Seller an amount
equal to the Purchase Price less the amount of the Deposit, subject to the
prorations and adjustments set forth in Section 5 hereof and subject to a credit
---------
in the amount of the Assumed Debt Credit (as defined in Section 2(d) hereof) if
------------
applicable pursuant to Section 2(d) below,
-2-
plus any other amounts required to be paid to Seller by Purchaser at the
Closing, in immediately available funds as more particularly set forth in
Section 2(c) below.
(d) All monies payable by Purchaser under this Agreement, unless
otherwise specified in this Agreement, shall be paid by (i) unendorsed bank
check(s) issued by a bank which is a member of the New York Clearinghouse
Association and payable directly to the order of Seller, or to such person or
entity or persons or entities as Seller may designate in writing at least
three(3) business days prior to the Closing Date (as defined in Section 17
----------
hereof), or (ii) upon three(3) business days prior notice given by Seller to
Purchaser, by Purchaser causing said amount to be transferred in immediately
available federal funds for credit to such bank account or accounts, and divided
into such amounts as may be required to consummate the transactions contemplated
by this Agreement, or (iii) any combination of items (i) and (ii) above as
Seller may direct by notice to Purchaser at least three(3) business days prior
to the Closing Date.
(e) Purchaser shall use diligent efforts to obtain prior to the
Closing, at no cost and expense to Seller, all consents of Lender (as defined
below) necessary in connection with the assumption by Purchaser of the Assumed
Debt and Seller agrees to fully cooperate and work with Purchaser to obtain such
consent. If the parties are able to obtain Lender's consent prior to the
Closing, then, on the Closing Date, upon delivery of all of the items to Seller
by Purchaser pursuant to Section 16 hereof, Purchaser shall receive a credit
(the "Assumed Debt Credit") against the Purchase Price for the portion of the
-------------------
Purchase Price equal to the sum of (i) the outstanding principal balance, and
(ii) all accrued unpaid interest thereon, by virtue of Purchaser assuming that
certain loan (the "Assumed Debt") as evidenced by that certain Note
------------
Consolidation and Modification Agreement (the "Note") dated November 17, 1998
----
executed between Seller and The Mutual Life Insurance Company of New York, now
known as, MONY Life Insurance Company ("Lender") in the original principal sum
------
of $20,500,000 and secured, inter alia, by that certain an Amended Restated and
----------
Consolidated Mortgage, Assignment of Leases and Rents and Security Agreement
dated of even date between Seller and Lender (the "Mortgage") which Mortgage is
--------
an encumbrance upon the Premises. The Note, the Mortgage and all other documents
executed in connection with the Assumed Debt (other than any guarantees or
pledge agreements given in connection therewith) are collectively hereinafter
referred to as the "Assumed Debt Documents." It is agreed and understood that
----------------------
Purchaser shall reimburse Seller on the Closing Date in an amount equal to all
reserves and/or escrows (collectively, the "Reserves"), including the Initial
--------
Capital Improvement Escrow (as defined in the Assumed Debt Documents) required
by Lender to be deposited by Seller in connection with the Assumed Debt.
Notwithstanding the foregoing, Seller shall have no obligation hereunder to
obtain Lender's consent for the assumption of the Assumed Debt by Purchaser nor
shall Seller have any liability whatsoever to Purchaser in the event that
Purchaser is unable to obtain such consent prior to Closing, it being agreed to
by Purchaser that Purchaser's obligations hereunder are in no way contingent
upon or conditioned
-3-
upon its assumption of the Assumed Debt or its ability to obtain Lender's
Consent in connection therewith inasmuch as Purchaser acknowledges that its
obligations hereunder to purchase the Premises are not contingent upon or
conditioned upon obtaining financing. If, in connection with an assignment or an
assumption by Purchaser of the Assumed Debt, Seller is unable to obtain a
release from the Lender of Seller's obligations under the Assumed Loan (as well
as the obligations of any parties who delivered guaranties or indemnities in
connection with the Assumed Loan), then Seller shall discharge the Assumed Loan
as aforesaid in lieu of assigning the same to Purchaser.
As used in this Agreement, the term "business day" shall mean every
------------
day other than Saturdays, Sundays, all days observed by the federal or New York
State government as legal holidays and all days on which commercial banks in New
York State are required by law to be closed.
(f) All interest earned on the amount delivered pursuant to
Section 2(a) hereof shall be reported to the IRS, and to any other taxing
authority with jurisdiction (if any), as income of the party ultimately entitled
to the Deposit. Seller and Purchaser, as appropriate, shall promptly execute all
forms reasonably required by the other party to effectuate the intent of this
Section, including, without limitation, Form W-9.
3. STATUS OF THE TITLE.
-------------------
Subject to the terms and provisions of this Agreement, Seller's
interest in the Premises shall be sold, assigned and conveyed by Seller to
Purchaser, and Purchaser shall accept same, subject only to the following
(collectively, the "Permitted Encumbrances"):
----------------------
(a) the state of facts disclosed on the survey prepared by ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ P.C. dated November 13, 1998 and any further state of facts a
current survey of the Premises or a personal inspection would disclose;
(b) the standard printed exclusions from coverage contained in
the ALTA form of owners title policy currently in use in New York, with the
standard New York endorsement, together with the easements, conditions,
restrictions, agreements, encumbrances and other matters as set forth on
Schedule B annexed hereto;
----------
(c) Non-Objectionable Encumbrances (as hereinafter defined); and
any liens, encumbrances or other title exceptions approved or waived by
Purchaser as provided in Section 4;
---------
-4-
(d) Property Taxes (as hereinafter defined) which are a lien but
not yet due and payable, subject to proration in accordance with Section 5
---------
hereof;
(e) any laws, rules, regulations, statutes, ordinances, orders
or other legal requirements affecting the Premises, including, without
limitation, those relating to zoning and land use;
(f) rights of record of any utility company and easements and
franchises for electricity, water, steam, gas, telephone or other service or the
right to use and maintain poles, lines, wires, cables, pipes, boxes and other
fixtures and facilities in, over, under and upon the Premises;
(g) any installment not yet due and payable of assessments
imposed after the date hereof and affecting the Premises or any portion thereof,
(h) all violations of laws, rules, regulations, statutes,
ordinances, orders or requirements, now or hereafter issued or noted (including,
without limitation, those attached hereto as Schedule I) (each a "Violation" and
---------- ---------
collectively "Violations") other than those which are the responsibility of the
----------
tenant under the Hilfiger Lease to cure or which result from any act or failure
to act by the tenant under the Hilfiger Lease (each a "Hilfiger Violation");
------------------
provided, however, if a new violation (other than a Hilfiger Violation, comes of
record between the date hereof and the Closing Date (a "New Seller Violation")
--------------------
(it being agreed that any other violation is a "Permitted Encumbrance"), Seller
---------------------
shall have the right but not the obligation to cure the same, but if Seller
elects not to cure the same, Purchaser shall take title to the Premises subject
to such New Seller Violation, in which event, the Purchase Price shall be
reduced by the amount necessary to remove same; provided that if the cost to
cure or remove such New Seller Violation is in excess of $25,000 then Seller may
elect to terminate this Agreement, in which event Seller shall deliver the
Deposit to Purchaser, after which no party hereto shall have any rights or
obligations hereunder except as expressly provided otherwise, provided that in
such an event Purchaser may elect, at its option, to close without such New
Seller Violation being cured and receive a $25,000 credit against the Purchase
Price. Purchaser agrees that neither it nor any of its officers, directors,
employees, agents or anyone acting through or at their direction shall contact
the New York City Department of Buildings or any other New York City agency with
respect to any violations without Seller's prior written consent which may be
withheld in Seller's sole and absolute discretion, provided Purchaser may cause
the Title Company to perform normal departmental searches with respect to
violations on the Property. If Purchaser breaches its obligation to refrain from
contacting the New York City Department of Buildings or any other New York City
agency as aforesaid, all violations now or hereafter noted against or
encumbering the Premises shall be deemed "Permitted Encumbrances"; and
-5-
(i) the rights and interests held by tenants under the Leases in
effect at Closing.
4. TITLE INSURANCE, LIENS.
----------------------
(a) (i) Purchaser has ordered, at Purchaser's expense, a
title commitment (the "Commitment") for an owner's policy of title insurance
----------
with respect to Purchaser's acquisition of the Premises from Commonwealth Land
Title Insurance Company (the "Title Company"), a copy of which shall be
-------------
furnished to Seller and Seller's attorneys within five (5) business days after a
fully executed copy of this Agreement is received by Purchaser. Within five (5)
business days after receipt thereof by Seller and Seller's attorneys, time being
of the essence, Purchaser or Purchaser's attorneys shall furnish to Seller and
Seller's attorneys a written statement setting forth such exceptions to title
appearing on such Commitment which Purchaser claims are not Permitted
Encumbrances (the "Title Objections"); provided, however, that in no event shall
-----------------
any lien, encumbrance or other exception arising as a result of any act or
omission of Purchaser or anyone acting on behalf of Purchaser be deemed a Title
Objection. Unless Purchaser or Purchaser's attorney shall timely notify Seller
and Seller's attorney of any Title Objections, all matters which are set forth
in any such Commitment shall be deemed to constitute additional Permitted
Encumbrances. If Purchaser delivers such objection notice within the time period
aforesaid, any liens, encumbrances and other title exceptions appearing on such
Commitment which are not expressly objected to in such notice shall not
constitute Title Objections and shall be deemed Permitted Encumbrances.
(ii) If, prior to the Closing Date, the Title Company
shall deliver any update to the Commitment which discloses additional liens,
encumbrances or other title exceptions which were not disclosed by the
Commitment) (each, an "Update Exception"), then Purchaser shall have until the
----------------
earlier of (x) two (2) business days after delivery of such update or (y) the
business day immediately preceding the Closing Date, time being of the essence
(the "Update Objection Date") to deliver notice to Seller objecting to any of
---------------------
the Update Exceptions. If Purchaser fails to deliver such objection notice by
the Update Objection Date, Purchaser shall be deemed to have waived its right to
object to any Update Exceptions (and the same shall not be deemed Title
Objections and shall be deemed Permitted Encumbrances). If Purchaser shall
deliver such objection notice by the Update Objection Date, any Update
Exceptions which are not objected to in such notice shall not constitute Title
Objections and shall be deemed Permitted Encumbrances.
(iii) If, at the Closing Date, the Title Company shall
deliver any update to the Commitment which discloses additional liens,
encumbrances or other title exceptions which were not disclosed by the
Commitment or any updates delivered pursuant to
-6-
subparagraph (ii) above, then Seller may adjourn the Scheduled Closing Date for
a reasonable period or periods, not to exceed ninety (90) days ("Title Cure
----------
Period"), in order to attempt to eliminate such exceptions.
------
(iv) Purchaser shall not be entitled to object to, and
shall be deemed to have approved, any liens, encumbrances or other title
exceptions (and the same shall not constitute Title Objections but shall be
deemed Permitted Encumbrances) (1) over which the Title Company is willing to
insure (without additional cost to Purchaser), (2) against which the Title
Company is willing to provide affirmative insurance (without additional cost to
Purchaser), or (3) which will be extinguished upon the transfer of the Property
(collectively, the "Non-Objectionable Encumbrances"). Notwithstanding anything
------------------------------
to the contrary contained herein, if Seller is unable to eliminate the Title
Objections set forth in the Commitment or any update thereto by the Scheduled
Closing Date (as hereinafter defined), unless the same are waived by Purchaser
without any abatement in the Purchase Price, Seller may, upon at least two (2)
business days' prior notice ("Title Cure Notice") to Purchaser (except with
------------------
respect to matters first disclosed during such two (2) business day period, as
to which matters notice may be given at any time through and including the
Scheduled Closing Date) adjourn the Scheduled Closing Date for the Title Cure
Period, in order to attempt to eliminate such exceptions.
(b) If Seller is unable to eliminate any Title Objection within
the Title Cure Period, unless the same is waived by Purchaser, then, Purchaser
may (i) accept the Property subject to such Title Objection without abatement of
the Purchase Price, in which event (x) such Title Objection shall be deemed to
be, for all purposes, a Permitted Encumbrance, (y) Purchaser shall close
hereunder notwithstanding the existence of same, and (z) Seller shall have no
obligations whatsoever after the Closing Date with respect to Seller's failure
to cause such Title Objection to be eliminated, or (ii) terminate this Agreement
by written notice given to Seller and Escrow Agent within five (5) business days
following expiration of the Title Cure Period, time being of the essence, in
which event Purchaser shall be entitled to a return of the Deposit. If Purchaser
shall fail to deliver the termination notice described in clause (ii) within the
five (5) business day period described therein, TIME BEING OF THE ESSENCE,
Purchaser shall be deemed to have made the election under clause (i). Upon the
----------
timely giving of any termination notice under clause (ii), this Agreement shall
-----------
terminate and upon return of the Deposit to Purchaser, neither party hereto
shall have any further rights or obligations hereunder other than those which
are expressly provided to survive the termination hereof.
(c) It is expressly understood that in no event shall Seller be
required to bring any action or institute any proceeding, or to otherwise incur
any costs or expenses in order to attempt to eliminate any Title Objections or
to otherwise cause title in the Premises to be in accordance with the terms of
this Agreement on the Closing Date; provided, however, that Seller shall, upon
consummation of the Closing, cause any Title Objections such as
-7-
mortgages (excluding the Assumed Debt, in the event that Purchaser assumes the
Assumed Debt), taxes, judgments or other liens or encumbrances (collectively
"Liens") voluntarily created by Seller subsequent to the date hereof encumbering
-----
the Premises to be, at Purchaser's election upon notice given to Seller at least
fifteen (15) business days prior to Closing, either (i) assigned to Seller or to
Seller's lender or any other designee in accordance with and subject to the
provisions of Section 4(f), below, or (ii) discharged of record. Notwithstanding
the previous sentence, Seller agrees to remove through payment, "bonding over"
or depositing a sufficient amount with the Company in escrow for removal from
the Title Policy all Liens in a liquidated amount, not to exceed $75,000.00 (as
such amount may be reduced by an amount equal to 21/34 of any amounts either
expended by Purchaser to cure Violations or New Seller Violations or credited to
Purchaser in either case pursuant to Section 3(h) above), provided however,
that, if the Company will "insure over" or "omit" any such Lien based upon an
indemnity from Seller or an affiliate of Seller, Seller shall not be required to
remove same through payment, "bonding over" or depositing a sufficient amount
with the Company in escrow for removal. If, in connection with an assumption by
Purchaser of the Assumed Debt by Purchaser, Seller is unable to obtain a release
from Lender of Seller's obligations under the Assumed Debt (as well as the
obligations of any parties who have delivered guarantees or indemnities in
connection with the Assumed Debt), then Seller shall discharge the Assumed Debt
(or cause same to be assigned to Seller or to Seller's lender or any other
designee in accordance with and subject to the provisions of Section 4(f),
below).
(d) If Seller shall have adjourned the Scheduled Closing Date in
order to cure Title Objections in accordance with the provisions of this Section
-------
4 (it being understood that Seller is under no obligation to effect such cure),
-
Seller shall, upon the satisfactory cure thereof, promptly reschedule the
Scheduled Closing Date, upon at least ten (10) business days' prior notice to
Purchaser (the "New Closing Notice"); it being agreed, however, that if any
------------------
matters which are Title Objections arise between the date the New Closing Notice
is given and the rescheduled Scheduled Closing Date, Seller may again adjourn
the Closing for a reasonable period or periods, in order to attempt to cause
such exceptions to be eliminated by sending Purchaser a Title Cure Notice, it
being agreed, however, that Seller shall not be entitled to adjourn the
Scheduled Closing Date pursuant to this Section 4 for a period or periods in
---------
excess of ninety (90) days in the aggregate.
(e) If the Commitment discloses judgments, bankruptcies or other
returns against other persons having names the same as, or similar to, that of
Seller, Seller, on request, shall deliver to the Title Company affidavits
reasonable satisfactory to Title Company showing that such judgments,
bankruptcies or other returns are not against Seller in order to induce the
Title Company to omit exceptions with respect to such judgments, bankruptcies or
other returns or to insure over same.
-8-
(f) If Purchaser has not received Lender Consent, Seller shall
cause the Assumed Debt and any liens voluntarily created by Seller subsequent to
the date hereof encumbering the Premises to be discharged of record.
5. APPORTIONMENTS.
--------------
(a) The following shall be apportioned between Seller and
Purchaser on a per diem basis as of the close of business on the day immediately
preceding the Closing Date (the "Apportionment Date"):
------------------
(i) Prepaid rents, fixed rents and additional rents
payable pursuant to the Leases (including, without limitation, operating expense
escalation payments, real estate tax escalation payments and percentage rent, if
any, payable under the Leases) (collectively, "Rents") to be apportioned in
-----
accordance with Section 5(b) below;
------------
(ii) Real estate taxes, sewer rents and taxes, water rates
and charges (to the extent not accounted for pursuant to clauses (i) and (iii)
hereof or to the extent not billed to and payable directly by any Tenant), vault
charges and taxes, and any other governmental taxes and charges levied or
assessed against the Real Property (collectively, "Property Taxes"), on the
--------------
basis of the respective periods for which each is assessed or imposed or on the
basis of meter readings, to be apportioned in accordance with this Section 5;
---------
(iii) Charges (to the extent not accounted for pursuant to
clauses (i) and (ii) above or to the extent not billed to and payable directly
by any Tenant) for electricity, steam, gas and any other utilities
(collectively, "Utilities") made by the utility companies servicing the Premises
---------
to be apportioned in accordance with Section 5(e) hereof, and transferable
------------
utility deposits, if any, but all amounts refundable under unassigned or
unassignable utility agreements shall remain the property of Seller;
(iv) Fuel (to the extent not accounted for pursuant to
clause (i), (ii) or (iii) hereof), if any, based on a reading Seller will
endeavor to have completed within five (5) days prior to the Closing Date or, if
not so completed, as reasonably estimated by Seller's supplier, at current cost,
together with any sales taxes payable in connection therewith, if any. A letter
from Seller's fuel supplier shall be conclusive evidence as to the quantity of
fuel on hand and the current cost therefor;
(v) With respect to the Assumed Debt, all interest
payable on the Note attributable to the month in which the Closing shall occur;
(vi) Administrative charges on the cash security deposits
held pursuant to the Leases (to the extent permitted by law or by the terms of
the applicable Lease);
-9-
(vii) prepaid fees for licenses and other permits
assigned to Purchaser at the Closing;
(viii) any amounts prepaid or payable by Seller of the
Property under the Contracts;
(ix) all other operating expenses, prepaid or payable,
with respect to the Premises; and
(x) such other items as are customarily apportioned in
accordance with real estate closings of commercial properties in the Borough of
Manhattan.
(b) (i) All Rents paid or payable for the billing period in
which the Closing Date occurs as set forth on a statement provided by Seller to
Purchaser shall be apportioned between Seller and Purchaser on a per-diem basis
as of the Apportionment Date. In the event that such statement evidences any
past due Rents owing by any tenant, for any billing period prior to the billing
period in which the Closing date occurs ("Past Due Rents"), such Past Due Rents
--------------
(other than Past Due Rents accrued under that certain lease dated as of July 5,
1995, as thereafter amended, between Seller, as Landlord, and Purchaser, as
Tenant, demising a portion of the Premises (the "Hilfiger Lease")) shall be
--------------
apportioned on the basis of the period for which the same is payable and if, as
and when collected, as follows:
(ii) Purchaser shall use its commercially reasonable
efforts to collect Past Due Rent allocable to the period commencing January 1,
2000 and continuing up to and including the Closing Date (the "Collection
----------
Period") on behalf of Seller as Seller shall direct, using counsel selected by
------
Seller and at Seller's sole cost and expense. In the course of pursuing the
collection of Past Due Rent in accordance with the provisions of the foregoing
sentence, Purchaser shall seek any and all remedies against the debtors of such
Past Due Rent which remain uncollected after Closing which may be requested by
Seller, but Purchaser is not obligated to bring eviction proceedings against a
delinquent tenant, unless it decides to do so in Purchaser's sole discretion.
Any Rent received from any such tenant after the Closing Date shall be applied
in the following order of priority: (1) first, to payment of the current Rent
and reimbursements then due for the month in which the Closing Date occurs, this
amount to be apportioned between Purchaser and Seller as set forth in Section
5(b)(i) hereof; and (2) second, to delinquent Rent and reimbursements arising
prior to Closing and after Closing which shall be apportioned pro rata between
--- ----
Seller and Purchaser on a "50/50" basis, to be applied to the most recent pre-
Closing arrears first, and then to the next most recent pre-Closing arrears and
continuing in such a manner until all arrears allocable to the Collection Period
are paid in full, it being agreed by and between the parties hereto that Seller
shall retain all rights to pursue arrears allocable to the period prior to the
Collection Period, and, upon request of Seller, Purchaser shall cooperate with
Seller with respect to the collection thereof,
-10-
at Seller's sole cost and expense. Any sums received by Seller or Purchaser to
which the other is entitled shall be held in trust, and the party receiving the
sum due the other shall remit to the other any such sums received to which the
other is entitled within five (5) business days after receipt thereof. The cost
and expense of collecting same (including the allocable share of property
management fees) shall be allocated between the parties in proportion to the
amount of rent each party is entitled to receive pursuant to this Section 5.
(c) Any prepaid Rents shall be retained by Seller and the amount
thereof shall be credited to Purchaser at Closing.
(d) Past Due Rent, if any, accrued under the Hilfiger Lease shall be
credited to Seller at Closing.
(e) Seller expressly agrees that if Seller receives any amounts after
the Closing Date which relate to the billing period in which the Closing Date
occurs, Seller shall apportion such amounts in accordance with the terms of this
Section 5 and deliver to Purchaser the amount, if any, to which Purchaser is
---------
entitled pursuant to the terms hereof within five (5) business days following
receipt thereof.
(i) If any amount payable under any Lease, other than fixed
rents, to be apportioned hereunder (including, without limitation, percentage
rents, escalation payments, whether for taxes, utilities, other operating
expenses or otherwise) has not been determined prior to the Closing Date, such
payment shall be apportioned on a per diem basis (y) in a manner to be agreed
upon in good faith by Seller and Purchaser before the Closing and (z) if Seller
and Purchaser are unable to reach an agreement pursuant to clause (y), based on
the amount of such payment due during the previous year of the applicable Lease
plus the rate of increase in such payment since such previous year. Such
apportionments shall be adjusted within 120 days subsequent to the Closing Date
and shall be set forth on the Final Closing Statement (as defined in Section
-------
5(k) hereof). To the extent that any apportionments based on the actual amounts
----
due may only be determined after the completion of the Final Closing Statement,
then the parties agree that such apportionments shall be adjusted after the
completion of the Final Closing Statement, but not later than ten (10) business
days of such final determination under the Leases, and at such time Purchaser
shall furnish Seller with statements in reasonable detail showing the
calculation of such apportionments, rents and payments. Seller shall have the
right to audit Purchaser's books and records with respect to such items being
apportioned. Each of Seller and Purchaser will promptly remit to the other party
any amount in excess of the amount to which it is entitled on account of
operating expenses in accordance with the foregoing within five (5) business
days after a final determination of operating expenses.
-11-
(f) Property Taxes shall be apportioned on the basis of the fiscal
period for which assessed. If the Closing Date shall occur either before an
assessment is made or a tax rate is fixed for the tax period in which the
Closing Date occurs, the apportionment of such Property Taxes based thereon
shall be made at the Closing Date by applying the tax rate for the preceding
year to the latest assessed valuation, but, promptly after the assessment and/or
tax rate for the current year are fixed, the apportionment thereof shall be
recalculated and Seller or Purchaser, as the case may be, shall promptly make an
appropriate payment to the other based on such recalculation.
(g) If there are water meters on the Premises, the unfixed water
rates and charges and sewer rents and taxes covered by meters, if any, shall be
apportioned (i) on the basis of an actual reading done prior to the
Apportionment Date, or (ii) if such reading has not been made, on the basis of
the last available reading. If the apportionment is not based on an actual
current reading, then upon the taking of a subsequent actual reading, such
apportionment shall be readjusted and Seller or Purchaser, as the case may be,
shall promptly deliver to the other the amount determined to be due upon such
readjustment.
(h) Utilities shall be apportioned on the basis of actual current
readings or, if such readings have not been made, on the basis of the most
recent bills that are available. If any apportionment is not based on an actual
current reading, then, upon the taking of a subsequent actual reading, such
apportionment shall be readjusted and Seller or Purchaser, as the case may be,
shall promptly deliver to the other the amount determined to be due upon such
readjustment.
(i) At the Closing, Seller shall receive a credit for the (i) amount
of the Reserves (only if Purchaser has assumed the Assumed Debt), and (ii) the
cost to Seller of all cleaning and other supplies in unopened cartons or
packages located at the Premises based on invoices therefor.
(j) Purchaser shall have no right to receive any rental insurance
proceeds which relate to the period prior to the Closing Date and, if any such
proceeds are delivered to Purchaser, Purchaser shall, within five (5) business
days following receipt thereof, pay the same to Seller.
(k) Purchaser agrees that it shall be responsible for the payment of
(i) all Tenant Inducement Costs (as hereinafter defined) and leasing commissions
which become due and payable (whether before or after the Closing Date) arising
from, relating to or in connection with (A) any renewals, modifications,
amendments or expansions of existing Leases or other supplementary agreements
relating thereto entered into between the date hereof and the Closing Date
(which either (X) are provided for in the existing Leases or other supplementary
agreements relating thereto or (Y) have been consented to in writing by
-12-
Purchaser, such consent not to be unreasonably withheld) and (B) any new Leases
entered into between the date hereof and the Closing Date, in each case which
have been approved in writing (or deemed approved) by Purchaser to the extent
required pursuant to the terms hereof; and (ii) all Tenant Inducement Costs and
leasing commissions which become due and payable from and after the Closing Date
arising from, relating to or in connection with any Leases (including, without
limitation, the existing Leases and the instruments described in clauses (A) and
(B) above), it being agreed to by and between the parties hereto that, with
respect to leasing commissions set forth at Section 5(k)(i), above, to the
extent such new Leases or such renewals, modifications, amendments or expansions
of existing Leases or other supplementary agreements relating thereto are
effective prior to the Closing Date, leasing commissions due as a result thereof
shall be apportioned between the parties in proportion to the amount of rent
each party is entitled to receive pursuant to this Section 5.. If as of the
Closing Date Seller shall have paid any Tenant Inducement Costs or leasing
commissions for which Purchaser is responsible pursuant to the foregoing
provisions, Purchaser shall reimburse Seller therefor at Closing provided that
Seller shall supply invoices and statements for all such Tenant Inducement Costs
and leasing commissions to Purchaser on or prior to the Closing Date, as well as
evidence reasonable satisfactory to Purchaser of such payment. For purposes
hereof, the term "Tenant Inducement Costs" shall mean any out-of-pocket payments
-----------------------
required under a Lease to be paid by the landlord thereunder to or for the
benefit of the tenant thereunder which is in the nature of a tenant inducement
or concession, including, without limitation, tenant improvement costs, design,
refurbishment and other work allowances, lease buyout costs, and moving
allowances; provided that "Tenant Inducement Costs" shall not include loss of
income resulting from any free rental period (it being agreed that Seller shall
bear such loss resulting from any free rental period with respect to the period
prior to the Closing Date and that Purchaser shall bear such loss with respect
to the period from and after the Closing Date). Seller agrees that it shall be
responsible for the payment of (i) all Tenant Inducement Costs set forth on
Schedule M and (ii) all leasing commissions set forth on Schedule N.
(l) It is the intent of the parties that all items herein which are
subject to apportionment under this Section 5 shall result in Seller receiving
all of the economic benefits and burdens of the Property with respect to the
period prior to the Closing Date, and Purchaser receiving all of the economic
benefits and burdens for the Property with respect to the period from and after
the Closing Date, except as may otherwise be expressly provided herein. If the
computation of the aforementioned apportionments shows that a net amount is owed
by Seller to Purchaser, such amount shall be credited against the Purchase Price
payable by Purchaser on the Closing Date. If such computation shows that a net
amount is owed by Purchaser to Seller, such amount shall be paid to Seller by
Purchaser on the Closing Date, at Seller's sole option, by cashier's or bank
check or by wire transfer of immediately available funds to the account(s)
designated by Seller for such purpose upon three (3) business days' prior notice
given by Seller to Purchaser.
-13-
(m) If at any time following the Closing Date, the amount of an item
listed in any section of this Section 5 shall prove to be incorrect (whether as
---------
a result of an error in calculation or a lack of complete and accurate
information as of the Closing), the party in whose favor the error was made
shall promptly pay to the other party the sum necessary to correct such error
upon receipt of proof of such error, provided that such proof is delivered to
the party from whom payment is requested on or before September 30, 2000.
(n) At or prior to the Closing, Seller and Purchaser and/or their
respective agents or designees will jointly prepare a preliminary closing
statement (the "Preliminary Closing Statement") which will show the net amount
-----------------------------
due either to Seller or to Purchaser as the result of the adjustments and
prorations provided for herein, and such net due amount will be added to or
subtracted from the cash balance of the Purchase Price to be paid to Seller at
the Closing pursuant to Section 2 hereof, as applicable. Within one hundred
---------
twenty (120) days following the Closing Date, Seller and Purchaser will jointly
prepare a final closing statement reasonably satisfactory to Seller and
Purchaser in form and substance (the "Final Closing Statement") setting forth
-----------------------
the final determination of the adjustments and prorations provided for herein
and setting forth any items which are not capable of being determined at such
time (and the manner in which such items shall be determined and paid). The net
amount due Seller or Purchaser, if any, by reason of adjustments to the
Preliminary Closing Statement as shown in the Final Closing Statement, shall be
paid in cash by the party obligated therefor within ten (10) business days
following that party's receipt of the approved Final Closing Statement. The
adjustments, prorations and determinations agreed to by Seller and Purchaser in
the Final Closing Statement shall be conclusive and binding on the parties
hereto except for any items which are not capable of being determined at the
time the Final Closing Statement is agreed to by Seller and Purchaser, which
items shall be determined and paid in the manner set forth in the Final Closing
Statement and except for other amounts payable hereunder pursuant to provisions
which survive the Closing. Prior to and following the Closing Date, each party
shall provide the other with such information as the other shall reasonably
request (including, without limitation, access to the books, records, files,
ledgers, information and data with respect to the Property during normal
business hours upon reasonable advance notice) in order to make the preliminary
and final adjustments and prorations provided for herein.
(o) The provisions of this Section 5 shall survive the Closing.
---------
6. PROPERTY NOT INCLUDED IN SALE.
-----------------------------
Notwithstanding anything to the contrary contained herein, it is expressly
agreed by the parties hereto that any fixtures, furniture, furnishings,
equipment or other personal property (including, without limitation, trade
fixtures in, on, around or affixed to the Building) owned
-14-
or leased by any tenant, managing agent, leasing agent, contractor, or employee
at the Building, shall not be included in the Property to be sold to Purchaser
hereunder.
7. COVENANTS.
---------
(a) Between the date hereof and the Closing Date, Seller shall:
(i) subject to subsections (b)(i) below, be permitted to
enter into any agreements with respect to all or any portion of the Property
provided that such agreements expire by their terms on or prior to the Closing
Date or, in the case of Contracts, may be terminated by the owner of the
Property without penalty upon not more than thirty (30) days' (or less) prior
notice or is necessary to correct any condition which constitutes a safety
hazard or is required by an insurance carrier or the Assumed Debt Documents or
any legal requirement;
(ii) maintain in full force and effect the insurance
policies currently in effect with respect to the Premises; and
(iii) operate and manage the Premises in a manner consistent
with current practice.
(b) Between the date hereof and the Closing Date, Seller shall not,
except as permitted under Section 7(a) above, without Purchaser's prior written
------------
approval:
(i) cancel, amend, modify and/or terminate the terms of
any Lease (other than the termination of any Lease as a result of the tenant's
default thereunder and except to accept a cancellation, termination or surrender
of a Lease pursuant to a right exercisable by a tenant without the consent of
the landlord under such Lease, which right is exercised by such tenant in
accordance with the terms of such Lease);
(ii) amend or modify (other than non-material amendments or
modifications) or renew any of the Contracts; or
(iii) enter into any new Contracts; or
(iv) so long as the Agreement is in full force and effect
and Purchaser is not in default hereunder, and provided that Purchaser has not
notified Seller that it has not received Lender Consent, amend or modify any of
the Assumed Debt Documents (except insofar as any such amendment or modification
will not result in an increase in the obligations of the borrower under such
documents after the Closing, other than those
-15-
amendments or modifications required by the terms of the applicable Assumed Debt
Document.
(c) Whenever in Section 7(b) hereof Seller is required to obtain
------------
Purchaser's approval with respect to any transaction described therein,
Purchaser shall, within seven (7) business days after receipt of Seller's
request therefor, notify Seller of its approval or disapproval of same and, if
Purchaser fails to notify Seller of its disapproval within said seven (7)
business day period, Purchaser shall be deemed to have approved same.
(d) Purchaser hereby covenants and agrees with Seller as follows:
(i) Purchaser acknowledges that prior to the date hereof
Purchaser conducted its examinations, inspections, testing, studies and/or
investigations of the Property (collectively, referred to as the "Due
---
Diligence") and other information regarding the Property, which Due Diligence
---------
included, without limitation, matters relating to the environmental and physical
condition of the Property, a review of the Assumed Debt Documents, the Leases,
the Contracts (together with tenant files in Seller's possession or in the
possession of Seller's managing agent and Seller's other files and
correspondence with respect thereto, except for such files and correspondence
which Seller is not permitted to disclose due to a confidentiality agreement
binding on Seller (provided that the contents of such confidential files and
correspondence would not make any of Seller's representations and warranties set
forth herein untrue, inaccurate or incorrect in any material respect)), an audit
of Seller's books, and the audit reports and work papers with respect to the
operation of the Property prepared by Seller's certified public accountants and
delivered to Seller, with respect to the operating expenses (including, without
limitation, credit losses and capital expenditures) and income with respect to
the Property. Purchaser acknowledges and agrees that any information furnished
to Purchaser with respect to the Property is and has been so furnished on the
condition that Purchaser maintain the confidentiality thereof. Accordingly,
Purchaser shall hold, and shall cause its directors, officers and other
personnel and representatives to hold, in strict confidence, and not disclose to
any other person without the prior written consent of Seller until the Closing
shall have been consummated, any of the information in respect of the Property
delivered to or for the benefit of Purchaser whether by agents, consultants,
employees or representatives of Purchaser or by Seller or any of its agents,
representatives or employees, including, but not limited to, any information
obtained by Purchaser or any of Purchaser's representatives in connection with
any studies, inspections, testings or analyses conducted by Purchaser as part of
its Due Diligence. Upon request, Purchaser hereby covenants and agrees to
furnish to Seller, without representation, warranty or recourse of any kind,
copies of any written third party reports, studies, inspections or testings
commissioned by Purchaser or its agents or representatives with respect to all
or any portion of the Premises which Purchaser has obtained in connection with
its Due Diligence. In
-16-
the event the Closing does not occur and this Agreement is terminated, Purchaser
shall promptly return to Seller all copies of documents containing any of such
information, without retaining any copy thereof or extract therefrom.
Notwithstanding anything to the contrary hereinabove set forth, Purchaser may
disclose such information only (y) on a need to know basis to its employees,
members of professional firms serving it and to other persons to whom Purchaser
may disclose information relating to the Property pursuant to Section 29(a)
-------------
below (including, without limitation, Purchaser's prospective lenders), and (z)
as any governmental agency may require in order to comply with applicable laws
and/or regulations. The provisions of this Subsection 7(d)(i) shall survive the
------------------
Closing or earlier termination of this Agreement.
(ii) with respect to the Assumed Debt Documents, at the
Closing, Seller shall be fully released by Purchaser from all obligations and
liabilities thereunder.
(iii) Purchaser acknowledges and agrees that Purchaser has
"signed-off" on (A) market conditions which influence the Property such as the
Property's competitive position relative to its existing and potential future
competitors, market rental rates achievable at the Property, vacancy
assumptions, downtime reserves, impact of sale on assessed value, tenant work
and leasing fee levels necessary to generate estimated market rents, tenant
retention ratios, and projected growth rates (if any) in rents, expenses, and/or
retail sales, (B) Lease cancellation income, HVAC overtime income, profit from
tenant electric charges, and the need for and amount of any "capital reserves,"
etc., and (C) the terms and provisions of the Assumed Debt Documents. Purchaser
acknowledges that it has received and reviewed an Environmental Phase I Site
Assessment, dated September, 1998 performed by ENSR Corporation with respect to
the Property. The Purchase Price reflects Purchaser's views on these issues.
8. ASSIGNMENTS BY SELLER AND ASSUMPTIONS BY PURCHASER; SECURITY DEPOSITS;
----------------------------------------------------------------------
EMPLOYEES.
----------
(a) Subject to Section 7(b), on the Closing Date, Seller agrees to
------------
assign to Purchaser, without recourse, representation or warranty (except as
expressly set forth in this Agreement), all of Seller's right, title and
interest in, and Purchaser agrees to assume Seller's obligations accruing on and
after the Closing Date under the documents described in clauses (i) through (v)
below:
(i) all Leases which are then in effect (together with any
security deposited by the tenants thereunder);
-17-
(ii) all Contracts which are then in effect;
(iii) all Assumed Debt Documents;
(iv) Zoning Lot Development Agreement dated August 13, 1998
between Seller and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLC; and
(v) the transferable permits, licenses and authorizations, if
any, relating to the Premises.
(b) Prior to the Closing, Seller shall have the right (i) to apply
any security deposits held under Leases in respect of defaults by tenants under
the applicable Leases, with the prior written consent of Purchaser, not to be
unreasonably withheld (except that Purchaser's consent shall not be required
with respect to any Lease with respect to which the tenant has either
surrendered or vacated the premises or Seller has terminated (pursuant to
Section 7(b)(i) hereof) and instituted eviction proceedings) and (ii) to return
the security deposit of any tenant thereunder who is entitled to the return of
such deposit pursuant to the terms of its Lease. If Seller exercises its right
set forth in clause (i) above to apply a security deposit, Seller shall
indemnify Purchaser against, and hold Purchaser harmless from, any claim made by
any such tenant against Purchaser in connection therewith. At the Closing,
Seller shall transfer or cause to be transferred to Purchaser the security
deposits then held by Seller and not applied to defaults or returned to tenants
as above provided.
(c) Seller agrees that, effective as of the Closing Date, it will
terminate (or cause to be terminated) all contracts or agreements for the
provision of building services set forth on Exhibit C-1. Seller acknowledges
that, if as a result, any of the union employees engaged by such companies are
terminated, certain termination benefits may be payable with respect to such
terminated employees. NorthStar Capital Investment Corp. agrees that it shall
indemnify and hold harmless Purchaser from and against any loss, cost, damage,
liability or expense (including, without limitations, reasonable attorneys'
fees, court costs and disbursements) incurred by Purchaser arising from or by
reason of the failure of Seller or any Person which acted on behalf of Seller
which is primarily responsible for the payment of any such termination benefits
to pay any such termination benefits as and when due and payable. The
provisions of this Section 8(c) shall survive the Closing.
------------
(d) NorthStar Capital Investment Corp. agrees that it shall indemnify
and hold harmless Purchaser from and against fifty percent (50%) of any loss,
cost, damage, liability or expense (including, without limitations, reasonable
attorneys' fees, court costs and disbursements) incurred by Purchaser arising
from or by reason of the arbitration proceeding or litigation known as "Building
---------
Service 32B-J Funds v. Fifth Avenue Realty Co." (Supreme
--------------------------------------------------------
-18-
Court, NY County -Index No. 116401/99). The provisions of this Section 8(d)
------------------------------------- ------------
shall survive the Closing.
9. CONDITION OF THE PROPERTY.
-------------------------
(a) Purchaser expressly acknowledges that, except as expressly set
forth in this Agreement, neither Seller, nor any person acting on behalf of
Seller, nor any person or entity which prepared or provided any of the materials
reviewed by Purchaser in conducting its Due Diligence, nor any direct or
indirect officer, director, partner, shareholder, employee, agent,
representative, accountant, advisor, attorney, principal, affiliate, consultant,
contractor, successor or assign of any of the foregoing parties (Seller, and all
of the other parties described in the preceding portions of this sentence (other
than Purchaser) shall be referred to herein collectively as the "Exculpated
----------
Parties") has made any oral or written representations or warranties, whether
-------
expressed or implied, by operation of law or otherwise, with respect to the
Property, the zoning and other laws, regulations and rules applicable thereto or
the compliance by the Property therewith, the revenues and expenses generated by
or associated with the Property, or otherwise relating to the Property or the
transactions contemplated herein. Purchaser further acknowledges that, all
materials which have been provided by any of the Exculpated Parties have been
provided without any warranty or representation, expressed or implied as to
their content, suitability for any purpose, accuracy, truthfulness or
completeness and Purchaser shall not have any recourse against Seller or any of
the other Exculpated Parties in the event of any errors therein or omissions
therefrom. Purchaser is acquiring the Property based solely on its own
independent investigation and inspection of the Property and not in reliance on
any information provided by Seller, or any of the other Exculpated Parties.
(b) Purchaser acknowledges and agrees that it is purchasing the
Property "AS IS" and "WITH ALL FAULTS", based upon the condition of the Property
as of the date of this Agreement, reasonable wear and tear and, subject to the
provisions of Sections 11 and 12 of this Agreement, loss by condemnation or fire
----------- --
or other casualty excepted. Purchaser acknowledges and agrees that its
obligations under this Agreement shall not be subject to any financing
contingency or other contingencies or satisfaction of conditions and Purchaser
shall have no right to terminate this Agreement or receive a return of the
Deposit, except as otherwise expressly provided herein.
(c) SELLER AND PURCHASER HEREBY AGREE THAT, EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER HAS NOT MADE AND IS NOT MAKING
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, AS TO
(A) THE NATURE OR CONDITION, PHYSICAL OR OTHERWISE, OF THE PROPERTY OR ANY
ASPECT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF
-19-
HABITABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR
PURPOSE, OR THE ABSENCE OF LATENT VICES OR DEFECTS IN THE PROPERTY, (B) THE
NATURE OR QUALITY OF CONSTRUCTION, STRUCTURAL DESIGN OR ENGINEERING OF THE
IMPROVEMENTS OR THE STATE OF REPAIR OR LACK OF REPAIR OF ANY OF THE
IMPROVEMENTS, (C) THE QUALITY OF THE LABOR OR MATERIALS INCLUDED IN THE
IMPROVEMENTS, (D) THE SOIL CONDITIONS, DRAINAGE CONDITIONS, TOPOGRAPHICAL
FEATURES, ACCESS TO PUBLIC RIGHTS-OF-WAY, AVAILABILITY OF UTILITIES OR OTHER
CONDITIONS OR CIRCUMSTANCES WHICH AFFECT OR MAY AFFECT THE PROPERTY OR ANY USE
TO WHICH THE PROPERTY MAY BE PUT, (E) ANY CONDITIONS AT OR WHICH AFFECT OR MAY
AFFECT THE PROPERTY WITH RESPECT TO ANY PARTICULAR PURPOSE, USE, DEVELOPMENT
POTENTIAL OR OTHERWISE, (F) THE AREA, SIZE, SHAPE, CONFIGURATION, LOCATION,
CAPACITY, QUANTITY, QUALITY, CASH FLOW, EXPENSES OR VALUE OF THE PROPERTY OR ANY
PART THEREOF, (G) THE NATURE OR EXTENT OF TITLE TO THE PROPERTY, OR ANY
EASEMENT, SERVITUDE, RIGHT-OF-WAY, POSSESSION, LIEN, ENCUMBRANCE, LICENSE,
RESERVATION, CONDITION OR OTHERWISE THAT MAY AFFECT TITLE TO THE PROPERTY, (H)
ANY ENVIRONMENTAL, GEOLOGICAL, STRUCTURAL, OR OTHER CONDITION OR HAZARD OR THE
ABSENCE THEREOF HERETOFORE, NOW OR HEREAFTER AFFECTING IN ANY MANNER THE
PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PRESENCE OR ABSENCE OF ASBESTOS OR
ANY ENVIRONMENTALLY HAZARDOUS SUBSTANCE ON, IN, UNDER OR ADJACENT TO THE
PROPERTY, OR(I)THE COMPLIANCE OF THE PROPERTY OR THE OPERATION OR USE OF THE
PROPERTY WITH ANY APPLICABLE RESTRICTIVE COVENANTS, OR WITH ANY LAWS, ORDINANCES
OR REGULATIONS OF ANY GOVERNMENTAL BODY (INCLUDING SPECIFICALLY, WITHOUT
LIMITATION, ANY ZONING LAWS OR REGULATIONS, ANY BUILDING CODES, ANY
ENVIRONMENTAL LAWS, AND THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C.
12101 ET SEQ.) AND PURCHASER EXPRESSLY DISCLAIMS ANY RIGHT TO BRING ANY CLAIM IN
RESPECT OF THE FOREGOING. THE PROVISIONS OF THIS SECTION 9 SHALL BE BINDING ON
PURCHASER AND SHALL SURVIVE THE CLOSING.
10. REPRESENTATIONS AND WARRANTIES.
------------------------------
(a) Purchaser represents and warrants to Seller as of the date hereof
that:
(i) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is duly
qualified and has the requisite power and authority to carry on its business
in the State of New York as it is
-20-
now being conducted. This Agreement constitutes the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms. Purchaser has taken all necessary action to authorize and approve the
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement.
(ii) No action, suit, claim, investigation or proceeding,
whether legal or administrative or in mediation or arbitration, is pending
or, to the best of Purchaser's knowledge, threatened, at law or in equity,
against Purchaser before or by any court or federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality which would prevent Purchaser from performing its
obligations pursuant to this Agreement, and there are no judgments, decrees
or orders entered on a suit or proceeding against Purchaser, an adverse
decision in which might, or which judgment, decree or order does, adversely
affect Purchaser's ability to perform its obligations pursuant to, or
Seller's rights under, this Agreement, or which seeks to restrain,
prohibit, invalidate, set aside, rescind, prevent or make unlawful this
Agreement or the carrying out of this Agreement or the transactions
contemplated hereby.
(iii) The execution and delivery of this Agreement and the
performance by Purchaser of its obligations hereunder do not and will not
conflict with or violate any law, rule, judgment, regulation, order, writ,
injunction or decree of any court or governmental or quasi-governmental
entity with jurisdiction over Purchaser, including, without limitation, the
United States of America, the State of New York or any political
subdivision of either of the foregoing, or any decision or ruling of any
arbitrator to which Purchaser is a party or by which Purchaser is bound or
affected.
(b) Seller hereby represents and warrants to Purchaser as of
the date hereof that:
(i) Seller is a Delaware limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware and is duly qualified and has the requisite power and
authority to carry on its business in the State of New York as it is now
being conducted. This Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its
terms. Seller has or will take all necessary action to authorize and
approve the execution and delivery of this Agreement and the consummation
of the transactions contemplated by this Agreement.
(ii) No action, suit, claim, investigation or proceeding,
whether legal or administrative or in mediation or arbitration, is pending
or, to the best of Seller's
-21-
knowledge, threatened, at law or in equity, against Seller before or by any
court or federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality which would prevent
Seller from performing its obligations pursuant to this Agreement, and
there are no judgments, decrees or orders entered on a suit or proceeding
against Seller, an adverse decision in which might, or which judgment,
decree or order does, adversely affect Seller's ability to perform its
obligations pursuant to, or Purchaser's rights under, this Agreement, or
which seeks to restrain, prohibit, invalidate, set aside, rescind, prevent
or make unlawful this Agreement or the carrying out of this Agreement or
the transactions contemplated hereby.
(iii) The execution and delivery of this Agreement and the
performance by Seller of its obligations hereunder do not and will not
conflict with or violate any law, rule, judgment, regulation, order, writ,
injunction or decree of any court or governmental or quasi-governmental
entity with jurisdiction over Seller, including, without limitation, the
United States of America, the State of New York or any political
subdivision of either of the foregoing, or any decision or ruling of any
arbitrator to which Seller is a party or by which Seller is bound or
affected.
(iv) Attached hereto as Schedule D is a true, correct and
----------
complete list of the Leases in effect as of the date hereof.
(v) Attached hereto as Schedule E is a true, correct and
----------
complete list of the Contracts in effect as of the date hereof.
(vi) Attached hereto as Schedule F is a true, correct and
----------
complete list of the security deposits currently held by Seller under the
Leases in effect as of the date hereof. To Seller's knowledge, (A) the
Leases are in full force and effect, (B) except as provided on Schedule G,
----------
as of January 28, 2000 there are no defaults by any tenants under any
Leases, (C) Seller has fully performed, and until the Closing will continue
to perform, its obligations under all Leases and has not received any
written notice from any tenant that Seller is in default under any Lease,
(D) except with respect to the matters and items set forth on Schedule F,
no person, firm or entity has any possessory interest in the Property, (E)
no dispute exists with any party set forth on Schedule F, except as
provided on Schedule F, regarding the computation of rent, additional rent
or other sums or of any breach on the part of any such party, and (F) no
rent has been paid more than thirty (30) days in advance of its due date.
The representations of Seller under this subsection (vi) are subject to the
following limitation: Seller makes no representations under items (B), (C),
(E), and (F) with respect to the Hilfiger Lease.
-22-
(vii) Attached hereto as Schedule G is a tenant arrearage
----------
schedule which was true, correct and complete in all material respects as
of the date set forth thereon.
(viii) Except for the matters set forth on Schedule H, there is
----------
no action, suit, litigation, hearing or administrative proceeding pending
against Seller, or, to Seller's knowledge, threatened with respect to all
or any portion of the Premises.
(ix) There are no condemnation or eminent domain proceedings
pending, or to Seller's knowledge, threatened against the Premises.
(x) Except for the notices of violation set forth on Schedule
--------
I, Seller has not received any written notice from any governmental
-
authority claiming that the Premises is in violation of any applicable
laws.
(xi) Except as set forth on Schedule J, there are no
----------
employment, union or other similar agreements to which Seller is a party
and relating to the Premises (the agreements set forth on Schedule J being
----------
referred to, collectively, as the "Employment Agreements").
---------------------
(xii) Schedule C annexed hereto is a list of all employees
----------
presently employed by Seller or Seller's property manager at the Premises
and, based solely upon information provided by Seller's cleaning contractor
and security contractor, a list of all employees presently employed by such
contractors at the Premises.
(xiii) As of the date hereof, Seller has delivered to Purchaser
true and correct copies of all Environmental Reports made by or on behalf
of Seller or in its possession or control, which reports are listed on
Schedule K hereto. To Seller's knowledge, there are no violations of
----------
Environmental Law other than those, if any, set forth in the Environmental
Reports.
(xiv) As of the date hereof, Seller has delivered to Purchaser
true and correct copies of all Engineering Reports made by or on behalf of
Seller or in its possession or control, which reports are listed on
Schedule L hereto.
----------
(xv) To Seller's knowledge, except as set forth in the Leases
and on Schedule M, there are no outstanding "Tenant Inducement Costs"
----------
relating to the Premises.
(xvi) To Seller's knowledge, except as set forth on Schedule N,
----------
there are no outstanding "Leasing Commissions" relating to the Premises.
-23-
(xvii) As of the date hereof, Seller has delivered to Purchaser
true and correct copies of all pleadings in connection with the Check
Cashing Litigation (as defined herein) in its possession or control, which
reports are listed on Schedule O hereto.
----------
The representations and warranties contained in this Section 10(a) and
-----------------
(b) shall survive the Closing for twelve (12) months following the Closing Date.
---
Each representation and warranty of Seller contained in Section 10(b) shall
automatically be null and void and of no further force and effect on the day
which is the first anniversary of the Closing Date unless, prior to such day,
Purchaser shall have commenced a legal proceeding against Seller alleging that
Seller shall be in breach of such representation or warranty and that Purchaser
shall have suffered actual damages as a result thereof (a "Proceeding"). If
----------
Purchaser shall have timely commenced a Proceeding and a court of competent
jurisdiction shall, pursuant to a final, non-appealable order given in
connection with such Proceeding, determine that (1) Seller was in breach of any
of the applicable representation or warranties as of the date of this Agreement
and (2) Purchaser suffered actual damages (the "Damages") by reason of such
-------
breach and (3) Purchaser did not have actual knowledge or constructive knowledge
of such breach on or prior to the Closing Date then, Purchaser shall be entitled
to receive an amount equal to the Damages; provided, that, in no event shall
Purchaser be entitled to receive, in connection with any and all breaches of the
representations and warranties of Seller hereunder, an amount in excess of the
net sales proceeds received by Seller from Purchaser at the Closing (the
"Proceeds"). Any such Damages shall be refunded from such Proceeds within
--------
thirty (30) days following the entry of such final, nonappealable order and
delivery of a copy thereof to Seller. Purchaser acknowledges and agrees that,
in the event that Seller shall be in breach of any of the representations,
Purchaser shall have no recourse to the property or other assets of Seller or
any of the other Exculpated Parties (excluding the Proceeds), and Purchaser's
sole remedy, in such event, shall be to receive a refund from the Proceeds in
the amount described above.
(c) The representations and warranties of Seller set forth in
Section 10 (b) are subject to the following limitations: (i) subject to Section
-------------- -------
7(b), Seller does not represent or warrant that any particular Lease or Contract
----
will be in force or effect as of the Closing or that the tenants or contractors
thereunder, as applicable, will not be in default thereunder, (ii) Seller
reserves the right, but is not obligated, to institute summary proceedings
against any tenant or terminate any Lease as a result of a material default by
the tenant thereunder prior to the Closing Date. Seller makes no representations
and assumes no responsibility with respect to the continued occupancy of the
Property or any part thereof by any tenant. Further, Purchaser agrees that it
shall not be grounds for Purchaser's refusal to close the transactions
contemplated by this Agreement that any tenant is a holdover tenant or in
default under its Lease on the Closing Date and Purchaser shall close hereunder
subject to such holding over or default without credit against, or reduction of,
the Purchase Price, (iii) to the extent that Seller has delivered or made
available to Purchaser any Leases, Contracts or
-24-
other information with respect to the Property at any time prior to the Closing
Date and such Leases, Contracts or other information containing provisions
inconsistent with any of such representations and warranties, then such
representations and warranties shall be deemed modified to conform to such
provisions. Seller shall deliver to Purchaser at Closing a certification as to
whether the representations set forth in Section 10(b) remain true and correct
in all material respects as of the Closing Date (with the appropriate knowledge
qualifiers), and, if said representations are no longer true or correct,
identifying in which ways said representations have changed, and (iv) any and
all representations and warranties given by Seller hereunder shall be deemed to
be to Seller's knowledge with respect to documents executed, information
acquired, proceedings commenced, or otherwise, or the absence thereof, during
and/or relating to the period prior to Seller's ownership of the Property. In
the event that any representation (a) is no longer true or correct and (b) as
changed, materially and adversely affects Purchaser, Purchaser shall have the
option to either (a) elect to terminate this Agreement whereupon the Deposit
shall be returned to Purchaser and this Agreement (other than the provisions
hereof which are expressly stated to survive the termination of this Agreement)
shall be deemed canceled and of no further force or effect, with neither party
shall have any further rights or liabilities against or to the other, or (b)
waive any such change and close without any abatement in the Purchase Price.
Prior to and as a precondition to Purchaser's right to make any claim under
Section 10(b) for a breach of any representation contained herein, Purchaser
shall certify under oath that it did not, prior to or as of Closing (including
in its capacity as a tenant at the Property), have knowledge of the inaccuracy
of any representation or warranty which is the subject of a claim under Section
10(b).
11. DAMAGE AND DESTRUCTION.
----------------------
(a) If all or any part of the Building is damaged by fire or
other casualty occurring following the date hereof and prior to the Closing
Date, whether or not such damage affects a material part of the Building, then:
(i) if, without taking into account any repair or
restoration allocable to the portion of the premises demised under the Hilfiger
Lease, the estimated cost of repair or restoration is less than or equal to
$10,000,000 and the estimated time to complete such repair or restoration is
none months or less, neither party shall have the right to terminate this
Agreement and the parties shall nonetheless consummate this transaction in
accordance with this Agreement, without any abatement of the Purchase Price or
any liability or obligation on the part of Seller by reason of said destruction
or damage. In such event, Seller shall assign to Purchaser and Purchaser shall
have the right to make a claim for and to retain any casualty insurance proceeds
received under the casualty insurance policies in effect with respect to the
Premises on account of said physical damage or destruction as shall be
necessary, in Purchaser's reasonable judgment, to perform repairs to the
Building and/or to rebuild the Building to substantially the same condition as
it existed prior to the occurrence of
-25-
such fire or other casualty and Purchaser shall receive a credit from the cash
due at Closing for the amount of the deductible on such casualty insurance
policy.
(ii) if, without taking into account any repair or
restoration allocable to the portion of the premises demised under the Hilfiger
Lease, the estimated cost of repair or restoration exceeds $10,000,000 or if the
estimated time to complete such repair or restoration exceeds nine (9) months,
Purchaser shall have the option, exercisable within ten (10) business days after
receipt of notice of the occurrence of such fire or other casualty (which notice
shall also include the estimated cost of repair or restoration as well as the
estimated time to complete such repair or restoration), time being of the
essence with respect to such option, to terminate this Agreement by delivering
written notice thereof to Seller, whereupon the Deposit shall be returned to
Purchaser and this Agreement (other than the provisions hereof which are
expressly stated to survive the termination of this Agreement) shall be deemed
canceled and of no further force or effect, with neither party shall have any
further rights or liabilities against or to the other. In the event of an
occurrence as set forth in the preceding sentence, and Purchaser shall not
timely elect to terminate this Agreement or elects to close notwithstanding such
occurrence, then Purchaser and Seller shall consummate this transaction in
accordance with this Agreement, without any abatement of the Purchase Price or
any liability or obligation on the part of Seller or by reason of said
destruction or damage. In such event, Seller shall assign to Purchaser and
Purchaser shall have the right to make a claim for and to retain any casualty
insurance proceeds received on account of said physical damage or destruction
and Purchaser shall receive a credit from the cash due at Closing for the amount
of the deductible on the insurance policy.
(b) The estimated cost to repair and/or restore and the
estimated time to complete contemplated in subsection (a) above shall be
--------------
established by estimates obtained by Seller from independent contractors,
subject to Purchaser's review and reasonable approval of the same and the
provisions of Section 11(c) below and shall be set forth in Seller's notice to
-------------
Purchaser required in Section 11(a)(ii) above.
(c) The provisions of this Section 11 supersede the provisions
----------
of Section 5-1311 of the General Obligations Law of the State of New York. Any
disputes under this Section 11 as to the cost of repair or restoration or the
----------
time for completion of such repair or restoration shall be resolved by expedited
arbitration before a single arbitrator acceptable to both Seller and Purchaser
in their reasonable judgment in accordance with the rules of the American
Arbitration Association; provided that if Seller and Purchaser fail to agree on
an arbitrator within five days after a dispute arises, then either party may
request the Real Estate Board of New York, Inc., to designate an arbitrator.
Such arbitrator shall be an independent architect or engineer having at least
ten (10) years of experience in the construction of office buildings in
Manhattan. The determination of the arbitrator shall be conclusive and binding
-26-
upon the parties. The costs and expenses of such arbitrator shall be borne
equally by Seller and Purchaser.
12. CONDEMNATION.
------------
(a) If, prior to the Closing Date, any part of the Premises is
taken (other than a temporary taking), or if Seller shall receive an official
notice from any govern mental authority having eminent domain power over the
Premises of its intention to take, by eminent domain proceeding, any part of the
Premises (a "Taking"), then:
------
(i) if such Taking involves less than or equal to ten
percent (10%) of the rentable area of the Building as determined by an
independent architect chosen by Seller (subject to Purchaser's review and
reasonable approval of the same), neither party shall have any right to
terminate this Agreement, and the parties shall nonetheless consummate this
transaction in accordance with this Agreement, without any abatement of the
Purchase Price or any liability or obligation on the part of Seller by reason of
such Taking; provided, however, that Seller shall, on the Closing Date, (i)
assign and remit to Purchaser, and Purchaser shall be entitled to receive and
keep, the net proceeds of any award or other proceeds of such Taking which may
have been collected by Seller as a result of such Taking less the reasonable
expenses incurred by Seller in connection with such Taking, or (ii) if no award
or other proceeds shall have been collected, deliver to Purchaser an assignment
of Seller's right to any such award or other proceeds which may be payable to
Seller as a result of such Taking and Purchaser shall reimburse Seller for the
reasonable expenses incurred by Seller in connection with such Taking.
(ii) if such Taking involves more than ten percent
(10%) of the rentable area of the Building as determined by an independent
architect chosen by Seller (subject to Purchaser's review and reasonable
approval of the same), Purchaser shall have the option, exercisable within
fifteen (15) business days after receipt of notice (from either the governmental
authority seeking to exercise its right of eminent domain or Seller, whichever
is received earlier) of such Taking, time being of the essence with respect to
such option, to terminate this Agreement by delivering notice thereof to Seller,
whereupon the Deposit shall be returned to Purchaser and this Agreement shall be
deemed canceled and of no further force or effect, and neither party shall have
any further rights or liabilities against or to the other except pursuant to the
provisions of this Agreement which are expressly provided to survive the
termination hereof. If a Taking described in this clause (ii) shall occur and
----------
Purchaser shall not timely elect to terminate this Agreement, then Purchaser and
Seller shall consummate this transaction in accordance with this Agreement,
without any abatement of the Purchase Price or any liability or obligation on
the part of Seller by reason of such Taking; provided, however, that Seller
shall, on the Closing Date, (i) assign and remit to Purchaser, and Purchaser
shall be entitled to receive and keep, the net proceeds of any award or other
-27-
proceeds of such Taking which may have been collected by Seller as a result of
such Taking less the reasonable expenses incurred by Seller in connection with
----
such Taking, or (ii) if no award or other proceeds shall have been collected,
deliver to Purchaser an assignment of Seller's right to any such award or other
proceeds which may be payable to Seller as a result of such Taking and Purchaser
shall reimburse Seller for the reasonable expenses incurred by Seller in
connection with such Taking.
(b) The provisions of this Section 12 supersede the provisions of
----------
Section 5-1311 of the General Obligations Law of the State of New York. Any
disputes under this Section 12 as to whether the Taking involves more than ten
----------
percent (10%) of the rentable area of the Building shall be resolved by
expedited arbitration before a single arbitrator acceptable to both Seller and
Purchaser in their reasonable judgment in accordance with the rules of the
American Arbitration Association; provided that if Seller and Purchaser fall to
agree on an arbitrator within five days after a dispute arises, then either
party may request the Real Estate Board of New York, Inc. designate an
arbitrator. Such arbitrator shall be an independent architect having at least
ten (10) years of experience in the construction of office buildings in
Manhattan. The costs and expenses of such arbitrator shall be borne equally by
Seller and Purchaser.
13. BROKERS AND ADVISORS.
--------------------
(a) Purchaser represents and warrants to Seller that it has not
dealt or negotiated with, or engaged on its own behalf or for its benefit, any
broker, finder, consultant, advisor, or professional in the capacity of a broker
or finder (each a "Broker") in connection with this Agreement or the
------
transactions contemplated hereby. Purchaser hereby agrees to indemnify, defend
and hold Seller harmless from and against any and all claims, demands, causes of
action, losses, costs and expenses (including reasonable attorneys' fees, court
costs and disbursements) arising from any claim for commission, fees or other
compensation or reimbursement for expenses made by any Broker engaged by or
claiming to have dealt with Purchaser in connection with this Agreement or the
transactions contemplated hereby.
(b) Seller hereby agrees to indemnify, defend and hold Purchaser
harmless from and against any and all claims, demands, causes of action, losses,
costs and expenses (including reasonable attorneys' fees, court costs and
disbursements) arising from any claim for commission, fees or other compensation
or reimbursement for expenses made by any Broker engaged by or claiming to have
dealt with Seller in connection with this Agreement or the transactions
contemplated hereby.
(c) The provisions of this Section 13 shall survive the
----------
termination of this Agreement or the Closing.
-28-
14. TAX REDUCTION PROCEEDINGS.
-------------------------
Seller may file and/or prosecute an application for the reduction of
the assessed valuation of the Premises or any portion thereof for real estate
taxes for the New York City fiscal year July 1, 1999 to June 30, 2000 (the
"1999/2000 Tax Year"). Seller shall have the right, without the prior consent
-------------------
of Purchaser, to withdraw, settle or otherwise compromise any protest or
reduction proceeding affecting real estate taxes assessed against the Premises
(i) for any fiscal period prior to the 1999/2000 Tax Year, and (ii) for the
1999/2000 Tax Year, subject to Purchaser's consent, such consent not to be
unreasonably withheld, in the event that Purchaser shall be materially and
adversely affected thereby. All refunds, credits or other benefits(i)
applicable to any fiscal period prior to the 1999/2000 Tax Year shall belong
solely to Seller (and Purchaser shall have no interest therein) and (ii) for the
1999/2000 Tax Year shall be apportioned between Purchaser and Seller as provided
in Section 5(a) hereof (but without regard to the "cut-off" date provided for
therein), after reimbursement to Seller for all actual expenses incurred by
Seller in connection with such proceeding) and in either event, if any amounts
due to Seller pursuant to this paragraph shall be paid to Purchaser or anyone
acting on behalf of Purchaser, same shall be paid to Seller within ten (10) days
following receipt thereof and, if not timely paid, with interest thereon from
the tenth day following such receipt until paid to Seller at a rate equal to the
prime rate of interest announced by Citibank, N.A. from time to time plus three
percent (3%). The provisions of this Section 14 shall survive the Closing.
----------
15. TRANSFER TAXES, RECORDING AND OTHER CHARGES.
-------------------------------------------
(a) At the Closing, Seller and Purchaser shall execute,
acknowledge, deliver and file all such returns as may be necessary to comply
with all applicable transfer tax laws, including Article 31 of the Tax Law of
the State of New York and the regulations applicable thereto, as the same may be
amended from time to time (the "RET") and the New York City Real Property
---
Transfer Tax (Admin. Code Article 21) and the regulations applicable thereto, as
the same may be amended from time to time (the "RPT"). On the Closing Date,
---
Seller shall pay to the appropriate party the amounts payable under the RET and
RPT, if any.
(b) Notwithstanding anything to the contrary contained herein,
upon written request of Seller at least three (3) business days prior to the
Closing Date, Purchaser shall bring to the Closing separate certified or bank
checks in the amount of the taxes due with respect to the RET and the RPT, if
any, which amount shall be credited against the Purchase Price payable on the
Closing Date.
(c) Except as set forth in Section 15(a) above, Purchaser shall
-------------
be liable for the payment of all recording charges and fees and all transfer,
conveyance, sales,
-29-
intangible and mortgage taxes payable in connection with this Agreement and the
transfer of the Property (including, without limitation, the cost of obtaining
title insurance, survey fees, recording fees, and all other title related
expenses) and any fees or other amounts required by Lender in connection with
the giving of its consent and/or the assumption of the Assumed Debt. If any
additional transfer, conveyance, sales, intangible, mortgage or other tax is
instituted on or after the date hereof and payable in connection with the
transactions contemplated herein, Seller shall pay same in the event the primary
obligation to pay same is a seller's obligation and Purchaser shall pay same in
the event the primary obligation to pay same is a purchaser's obligation.
(d) The provisions of this Section 15 shall survive the Closing.
----------
16. DELIVERIES TO BE MADE ON THE CLOSING DATE.
-----------------------------------------
(a) Seller's Documents and Deliveries: On the Closing Date,
---------------------------------
Seller shall deliver or cause to be delivered to Purchaser the following:
(i) A duly executed and acknowledged Bargain and Sale Deed
Without Covenant Against Grantor's Acts in the form attached hereto as
Exhibit 1;
---------
(ii) A duly executed ▇▇▇▇ of Sale in the form attached
hereto as Exhibit 2;
---------
(iii) A duly executed Indemnification Agreement from
NorthStar Capital Investment Corp.;
(iv) Originals or, if unavailable, true and complete
copies, of the Leases and Contracts then in effect to the extent in
Seller's possession;
(v) An original fully executed counterpart of the Assumed
Debt Documents evidencing and securing the Assumed Debt, to the extent the
same is in Seller's possession and control; provided that if Seller is
unable to produce an original fully executed counterpart of any such
document, Seller may provide a copy of such document certified by Seller to
be a true and correct copy thereof, in lieu thereof;
(vi) Letters to all tenants under the Leases in the form
attached hereto as Exhibit 3;
---------
-30-
(vii) Originals or, if unavailable, true and complete
copies, of plans (including "as built" plans) and specifications, technical
manuals and similar materials for the Building to the extent same are in
Seller's possession;
(viii) A duly executed certification as to Seller's
nonforeign status as prescribed in Section 20 hereof, if appropriate, in
----------
the form attached hereto as Exhibit 4;
---------
(ix) The cash security deposits (together with interest
accrued thereon less a 1% administrative fee (but only to the extent that
same is permitted under applicable law of the terms of the applicable
Lease) and letters of credit held by Seller as security under the Leases,
but only to the extent the same have not been applied in accordance with
the Leases or returned to tenants and relate to tenants occupying space in
the Building on the Closing Date pursuant to Leases then in effect (the
"Transferred Security Deposits");
-----------------------------
(x) Originals or, if unavailable, true and complete
copies, of all books and records relating to the Premises and maintained by
Seller during Seller's ownership thereof,
(xi) Originals or, if unavailable, true and complete
copies, of all permits, licenses and approvals relating to the ownership,
use or operation of the Premises, to the extent in Seller's possession;
(xii) Keys and combinations in Seller's possession relating
to the operation of the Premises; and
(xiii) A duly executed certification from Seller as
prescribed in Section 11(c) hereof that the representations and warranties of
----------
Seller contained herein shall be true and correct in all material respects as of
the date of Closing or, if said representations are no longer true or correct,
identifying in which ways said representations have changed.
Seller shall be deemed to have delivered the items set forth in
clauses (iii), (vi), (ix), (x) and (xi) above if the same are left in the
Building management office on the Closing Date.
(b) Purchaser's Documents and Deliveries: On the Closing Date,
------------------------------------
Purchaser, shall deliver or cause to be delivered to Seller the following:
-31-
(i) Checks or wire transfer in payment of the portion of the
Purchase Price payable at Closing, as adjusted for apportionments under
Section 5, in the manner required under this Agreement and any payment due
---------
Seller with respect to the Reserves and any other amounts payable to Seller
under this Agreement.
(ii) Duly executed and acknowledged assignment and assumption
documents for the assumption of the Assumed Debt, together with a release
in form and substance reasonable satisfactory to Seller, executed by Lender
(and all other persons (such as loan servicers and trustees) which may be
capable of asserting any claims) releasing Seller from all of the
obligations and liabilities with respect to the Assumed Debt and the
Assumed Debt Documents.
(c) Jointly Executed Documents: Seller and Purchaser shall, on
--------------------------
the Closing Date, each execute, acknowledge (as appropriate) and
exchange the following documents:
(i) The returns required under the RET, the RPT and any
other tax laws applicable to the transactions contemplated herein;
(ii) An Assignment and Assumption of Leases and Contracts
in the form attached hereto as Exhibit 5;
----------
(iii) A General Assignment and Assumption Agreement in the
form attached hereto as Exhibit 6; and
----------
(iv) Any other affidavit, document or instrument required
to be delivered by Seller or Purchaser pursuant to the terms of this
Agreement.
17. CLOSING DATE.
------------
(a) The closing (the "Closing") of the transactions
-------
contemplated hereunder shall occur, and the documents referred to in Section 16
----------
hereof shall be delivered upon tender of the Purchase Price provided for in this
Agreement, on or about March 1, 2000 (the "Closing Date"), at the offices of
------------
Seller's attorneys, Battle ▇▇▇▇▇▇ LLP. In the event that the Closing does not
occur on March 1, 2000, the Closing Date shall be March 10, 2000. Except as
provided in subsection (b), below, time is of the essence as to Purchaser's
obligation to close the transactions contemplated hereunder on the March 10,
2000 (or, if Seller shall have extended the Scheduled Closing Date pursuant to
Section 4, on such Scheduled Closing Date so designated by Seller).
---------
-32-
(b) Notwithstanding subsection (a) above, by notice given
to Purchaser no later than March 5, 2000, Purchaser may elect to adjourn the
Closing to a date no later than April 10, 2000, in which event time shall be of
the essence as to Purchaser's obligation to close the transactions contemplated
hereunder on the date so designated by Purchaser. As a condition precedent to
Purchaser's exercise of its rights under this subsection (b), Purchaser shall
increase the Deposit to THREE MILLION, SEVEN HUNDRED FIFTY THOUSAND AND NO/100
($3,750,000.00) DOLLARS by payment to Escrow Agent , by certified check, of the
amount of ONE MILLION, SEVEN HUNDRED FIFTY THOUSAND AND NO/100 ($1,750,000.00)
DOLLARS.
18. NOTICES.
-------
All notices, demands, requests or other communications
(collectively, "Notices") required to be given or which may be given hereunder
-------
shall be in writing and shall be sent by (a) certified or registered mail,
return receipt requested, postage prepaid, or (b) national overnight delivery
service, or (c) facsimile transmission (provided that the original shall be
simultaneously delivered by national overnight delivery service or personal
delivery), or (d) personal delivery, addressed as follows:
(i) If to Seller:
NorthStar 485 5th Holding LLC
c/o NorthStar Capital Investment Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to Purchaser:
-33-
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A., Inc.
▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Gursky & ▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any Notice so sent by certified or registered mail, national overnight
delivery service or personal delivery shall be deemed given on the date of
receipt or refusal as indicated on the return receipt, or the receipt of the
national overnight delivery service or personal delivery service. Any Notice
sent by facsimile transmission shall be deemed given when received as confirmed
by the telecopier electronic confirmation receipt. A Notice may be given either
by a party or by such party's attorney. Notwithstanding the foregoing, whenever
under this Agreement a notice is (a) received on a day which is not a business
day or is required to be delivered on or before a specific day which is not a
business day, the day of receipt or required delivery shall automatically be
extended to the next business day and (b) delivered by hand (or so attempted,
but refused) or by facsimile transmission, it shall be deemed given on the day
of delivery unless delivery is made after 5:00 p.m. or not on a business day, in
which event delivery shall be deemed given on the next occurring business day).
Seller or Purchaser may designate, by not less than five (5) business
days' notice given to the others in accordance with the terms of this Section
-------
18, additional or substituted parties to whom Notices should be sent hereunder.
--
By giving to the other party at least five (5) business days' notice given to
the others in accordance with the terms of this Section 18, the parties hereto
----------
and their respective successors and assigns will have the right from time to
time and at any time during the term of this Agreement to change their
respective addresses and each will have the right to specify as its address any
other address.
19. DEFAULT BY PURCHASER OR SELLER.
------------------------------
(a) If Purchaser shall default in its obligations hereunder,
Seller's sole remedy by reason thereof shall be to terminate this Agreement and,
upon such
-34-
termination, Seller shall be entitled to retain the Deposit as liquidated
damages for Purchaser's default hereunder, it being agreed that the damages by
reason of Purchaser's default are difficult, if not impossible, to ascertain,
and thereafter Purchaser and Seller shall have no further rights or obligations
under this Agreement except for those that are expressly provided in this
Agreement to survive the termination hereof. If Seller terminates this Agreement
pursuant to a right given to it hereunder and Purchaser takes any willful action
as to which Purchaser is not entitled hereunder and which interferes with
Seller's ability to sell, exchange, transfer, lease, dispose of or finance the
Property or take any other actions with respect thereto (including, without
limitation, the filing of any lis pendens or other form of attachment against
the Property), Purchaser shall be liable for all loss, cost, damage, liability
or expense (including, without limitation, reasonable attorneys' fees, court
costs and disbursements and consequential damages) incurred by Seller by reason
of such action to contest by Purchaser.
(b) If (x) Seller shall default in any of its obligations to be
performed on the Closing Date or (y) Seller shall default in the performance of
any of its obligations to be performed prior to the Closing Date and, with
respect to any default under this clause (y) only, such default shall continue
----------
for five (5) days after notice to Seller, Purchaser shall have such remedies as
Purchaser shall be entitled to at law or in equity, including, but not limited
to, specific performance.
(c) All money paid on account of this Agreement, and the
reasonable expenses of examination of title to the Premises and of any survey
and survey inspection charges, are hereby made liens on the Premises, but such
liens shall not continue after default by Purchaser under this Agreement.
(d) The provisions of this Section 19 shall survive the
----------
termination hereof.
20. FIRPTA COMPLIANCE.
-----------------
Seller shall comply with the provisions of the Foreign Investment in
Real Property Tax Act, Section 1445 of the Internal Revenue Code of 1986 (as
amended), as the same may be amended from time to time, or any successor or
similar law (collectively, "FIRPTA"). Seller acknowledges that Section 1445 of
------
the Internal Revenue Code provides that a transferee of a United States real
property interest must withhold tax if the transferor is a foreign person. To
inform Purchaser that withholding of tax is not required upon the disposition of
a United States real property interest by Seller, Seller hereby represents and
warrants that Seller is not a foreign person as that term is defined in the
Internal Revenue Code and Income Tax Regulations. On the Closing Date, Seller
shall deliver to Purchaser a certification as to Seller's non-foreign status in
the form attached hereto as Exhibit 4, and shall comply with any temporary or
---------
final regulations promulgated with respect thereto and any
-35-
relevant revenue procedures or other officially published announcements of the
Internal Revenue Service of the U.S. Department of the Treasury in connection
therewith.
21. ESCROW AGENT.
------------
(a) Escrow Agent shall hold the Deposit for Seller's account in
escrow as provided in paragraph 2(b) hereof until Closing or sooner termination
of this contract and shall pay over or apply the Deposit in accordance with the
terms of this paragraph. At Closing, the Deposit shall be paid by Escrow Agent
to Seller. If for any reason Closing does not occur and either party gives
Notice to Escrow Agent demanding payment of the Deposit, Escrow Agent shall give
prompt Notice to the other party of such demand. If Escrow Agent does not
receive Notice of objection from such other party to the proposed payment within
10 business days after the giving of such Notice, Escrow Agent is hereby
authorized and directed to make such payment. If Escrow Agent does receive such
Notice of objection within such 10 day period or if for any other reason Escrow
Agent in good faith shall elect not to make such payment, Escrow Agent shall
continue to hold such amount until otherwise directed by Notice from the parties
to this contract or a final, nonappealable judgment, order or decree of a court.
However, Escrow Agent shall have the right at any time to deposit the Deposit
and the interest thereon with the clerk of a court in the county in which the
Premises are located and shall give Notice of such deposit to Seller and
Purchaser. Upon such deposit or other disbursement in accordance with the terms
of this paragraph, Escrow Agent shall be relieved and discharged of all further
obligations and responsibilities hereunder.
(b) The parties acknowledge that, although Escrow Agent is
holding the Deposit for Seller's account, for all other purposes Escrow Agent is
acting solely as a stakeholder at their request and for their convenience and
that Escrow Agent shall not be liable to either party for any act or omission on
its part unless taken or suffered in bad faith or in willful disregard of this
contract or involving gross negligence on the part of Escrow Agent. Seller and
purchaser jointly and severally agree to defend, indemnify and hold Escrow Agent
harmless from and against all costs, claims and expenses (including reasonable
attorneys' fees) incurred in connection with the performance of Escrow Agent's
duties hereunder, except with respect to actions or omissions taken or suffered
by Escrow Agent in bad faith or in willful disregard of this contract or
involving gross negligence on the part of Escrow Agent.
(c) Escrow Agent may act or refrain from acting in respect of
any matter referred to herein in full reliance upon and with the advice of
counsel which may be selected by it (including any member of its firm) and shall
be fully protected in so acting or refraining from action upon the advice of
such counsel.
-36-
(d) Escrow Agent acknowledges receipt of the Deposit by check
subject to collection and Escrow Agent's agreement to the provisions of this
paragraph by signing in the place indicated on the signature page of this
contract.
(e) Escrow Agent or any member of its firm shall be permitted to
act as counsel for Seller in any dispute as to the disbursement of the Deposit
or any other dispute between the parties whether or not Escrow Agent is in
possession of the Deposit and continues to act as Escrow Agent.
22. ENTIRE AGREEMENT.
----------------
This Agreement contains all of the terms agreed upon between Seller
and Purchaser with respect to the subject matter hereof, and all prior
agreements, understandings, representations and statements, oral or written,
between Seller and Purchaser are merged into this Agreement.
23. AMENDMENTS.
----------
This Agreement may not be changed, modified or terminated, except by
an instrument executed by Seller and Purchaser.
24. WAIVER.
------
No waiver by either party of any failure or refusal by the other party
to comply with its obligations shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
25. PARTIAL INVALIDITY.
------------------
If any term or provision of this Agreement or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable,
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 shall be enforced to the fullest extent
permitted by law. The provisions of this Section 25 shall survive the Closing
----------
or the termination hereof.
-37-
26. SECTION HEADINGS.
----------------
The headings of the various sections of this Agreement have been
inserted only for the purposes of convenience, and 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.
27. GOVERNING LAW.
-------------
This Agreement shall be governed by the laws of the State of New York
without giving effect to conflict of laws principles thereof.
28. PARTIES; ASSIGNMENT AND RECORDING.
---------------------------------
(a) This Agreement and the various rights and obligations
arising hereunder shall inure to the benefit of and be binding upon Seller and
Purchaser and their respective successors and permitted assigns; provided that
none of the representations or warranties made by Seller hereunder shall inure
to the benefit of any person or entity that may, after the Closing Date, succeed
to Purchaser's interest in the Property.
(b) Purchaser may not assign or otherwise transfer this
Agreement or any of its rights hereunder or in Purchaser, without first
obtaining Seller's consent thereto, which consent Seller may grant or withhold
in its sole and absolute discretion. An assignment or transfer of this Agreement
shall not relieve Purchaser named herein of any of its obligations hereunder. An
assignment or a transfer in violation of this Section 28(b) shall be a default
hereunder by Purchaser.
(c) Notwithstanding the provisions of subsection (b), above, the
Purchaser named herein shall have the right upon notice to Seller to assign this
Agreement one or more times to an Affiliate. Any such assignment shall be
conditioned upon Purchaser delivering to Seller an executed original of the
assignment and assumption agreement wherein the assignee assumes all of the
obligations of the Purchaser named herein and proof reasonably satisfactory to
Seller that the assignee constitutes an Affiliate. An assignment or transfer of
this Agreement to an Affiliate shall not relieve the Purchaser named herein of
any of its obligations hereunder.
(d) Neither this Agreement nor any memorandum hereof may be
recorded without first obtaining Seller's consent thereto. The recording of this
Agreement without Seller's consent shall be a default by Purchaser hereunder.
-38-
(e) The provisions of Section 28(a) and 28(c) shall survive the
------------- -----
Closing or the termination hereof. The provisions of Section 28(b) shall
-------------
survive the termination hereof.
29. CONFIDENTIALITY AND PRESS RELEASES.
----------------------------------
(a) Between the date hereof through and including the Closing
Date and except as otherwise expressly provided in clause (b) below, Purchaser
----------
and Seller shall not (and shall use reasonable efforts to cause Purchaser's and
Seller's respective agents, employees, attorneys and advisors including, without
limitation, financial institutions to not) disclose, make known, divulge,
disseminate or communicate the Purchase Price or any of the terms of this
Agreement or this transaction or any agreement, document or understanding
pertinent to the instant transaction without the consent of the other party,
except (i) as required by law, (ii) to Purchaser's or Seller's employees and
advisors involved in the transaction, (iii) to Purchaser's prospective lenders
or investors or (iv) to Seller's lender or investors (the parties set forth at
(iii) and (iv) collectively, the "Permitted Outside Parties"). Purchaser
-------------------------
further agrees that within its organization, or as to the Permitted Outside
Parties, such information shall be disclosed and exhibited only to those persons
within Purchaser's organization or to those Permitted Outside Parties who are
responsible for determining the feasibility of the transaction contemplated
hereby to the extent necessary for such parties to discharge their duties and
provided same agree in writing to be bound by these confidentiality provisions.
(b) Prior to the Closing Date, Purchaser and Seller shall confer
and agree on a press release to be issued jointly by Purchaser and Seller
disclosing the transaction and the appropriate time for making such release.
Neither Purchaser nor Seller shall issue any press releases (or other public
statements) with respect to the transaction contemplated in this Agreement
without approval of the other party.
(c) Purchaser and Seller shall cause their affiliates,
subsidiaries, agents, employees and retained professionals to agree in writing
to comply with the provisions of this Section.
(d) The provisions of Section 29(a) shall survive the
-------------
termination of this Agreement and the provisions of Section 29(b) shall survive
-------------
the termination hereof or the Closing.
30. FURTHER ASSURANCES.
------------------
Seller and Purchaser will do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, assignments, notices, transfers and
assurances as may be reasonably required by the other party, for the better
assuring, conveying, assigning, transferring
-39-
and confirming unto Purchaser the Property and for carrying out the intentions
or facilitating the consummation of this Agreement. The provisions of this
Section 30 shall survive the Closing.
----------
31. THIRD PARTY BENEFICIARY.
-----------------------
This Agreement is an agreement solely for the benefit of Seller and
Purchaser (and their permitted successors and/or assigns). No other person,
party or entity shall have any rights hereunder nor shall any other person,
party or entity be entitled to rely upon the terms, covenants and provisions
contained herein.
32. JURISDICTION AND SERVICE OF PROCESS.
-----------------------------------
The parties hereto agree to submit to personal jurisdiction in the
State of New York in any action or proceeding arising out of this Agreement and,
in furtherance of such agreement, the parties hereby agree and consent that
without limiting other methods of obtaining jurisdiction, personal jurisdiction
over the parties in any such action or proceeding may be obtained within or
without the jurisdiction of any court located in New York and that any process
or notice of motion or other application to any such court in connection with
any such action or proceeding may be served upon the parties by registered or
certified mail to or by personal service at the last known address of the
parties, whether such address be within or without the jurisdiction of any such
court.
33. WAIVER OF TRIAL BY JURY.
-----------------------
SELLER AND PURCHASER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN
CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT. THE PROVISIONS
OF THIS SECTION 33 SHALL SURVIVE THE CLOSING OR THE TERMINATION HEREOF.
----------
34. AMENDMENT OF ZONING LOT DEVELOPMENT AGREEMENT.
---------------------------------------------
(a) Purchaser acknowledges that it has received and reviewed a
copy of the Zoning Lot Development Agreement dated August 13, 1998 between
Seller and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLC (the "ZLDA") and has been advised that Seller
----
is presently negotiating certain amendments to the ZLDA and has been advised by
Seller that negotiations are currently being conducted by Seller with respect to
certain amendments to the ZLDA.
Purchaser agrees that, prior to and following the Closing, Seller may
enter into an amendment to the ZLDA, such amendment to be in form and substance
identical to the First Amendment to Zoning Lot Development Agreement annexed
hereto as Exhibit 7 (the "Proposed Amendment"). Purchaser further agrees that
------------------
Seller may make and agree to such
-40-
changes to the Proposed Amendment, provided that same does not adversely affect
the rights of Purchaser, as owner of the Building, other than to a de minimis
----------
degree. beyond those set forth in the Proposed Amendment. In furtherance of the
foregoing, Seller is hereby irrevocably appointed the attorney-in-fact of
Purchaser in its name and stead to make all appropriate transfers and deliveries
in accordance with the terms hereof and, for that purpose, Seller may execute
any and all necessary documents reasonably required in connection with the
amendment of the ZLDA and may substitute one or more persons with like power,
Purchaser hereby ratifying and confirming all that said attorneys or such
substitute or substitutes shall lawfully do by virtue hereof. The powers herein
granted are coupled with an interest and are irrevocable. The appointment of
Seller as Purchaser's attorney-in-fact shall only apply in connection with the
amendment of the ZLDA as contemplated hereby.
The parties hereto agree that Seller shall have the exclusive right to
amend the ZLDA within the parameters set forth above and undertake, conduct and
control, through counsel of its own choosing and at its own expense, the
prosecution, settlement or defense of any litigation (including but not limited
to an action for declaratory judgment) in connection with the amendment of the
ZLDA, and Purchaser shall cooperate with it in connection therewith, provided
same does not result in any cost or liability to Purchaser that Seller does not
reimburse upon demand. Purchaser shall cooperate fully in all aspects of any
investigation, defense, pretrial activities, trial, compromise, settlement or
discharge of any such litigation, provided same does not result in any cost or
liability to Purchaser that Seller does not reimburse upon demand. Purchaser
further acknowledges and agrees that Purchaser shall not have the right to amend
or modify the ZLDA or to settle or otherwise participate in any action commenced
by Seller pursuant to the terms of this Section or to settle any action
commenced against Purchaser with respect to the amendment of the ZLDA as
contemplated hereby.
(b) NorthStar Capital Investment Corp. agrees to indemnify and
hold Purchaser harmless from and against any and all claims, demands, causes of
action, losses, costs and expenses (including reasonable attorneys' fees, court
costs and disbursements) arising from the amendment of the ZLDA as contemplated
hereby, it being agreed to by the parties hereto that such indemnification
obligation shall terminate upon the execution and recording of an Amendment to
ZLDA.
(c) It is the intent of the parties hereto that the provisions
of this Section shall "run with the land" and at closing the Parties shall
execute a memo, in recordable form, setting forth the substance of this Section
(the "ZLDA Memo"). Upon amendment of the ZLDA by Seller as provided for herein,
---------
Seller shall deliver and cause to be recorded, at its sole cost and expense,
such documentation as may reasonable be required to terminate the ZLDA Memo.
(d) Seller agrees that, to the extent the execution and/or
recording of the ZLDA Memo or the amendment to the ZLDA require the consent of
Lender, Seller shall be responsible for obtaining same at Seller's sole cost and
expense.
-41-
(e) It is expressly understood that in no event shall Seller be
required to enter into an amendment to the ZLDA.
(f) The provisions of this Section 34 shall survive the Closing.
----------
35. "CHECK CASHING" LITIGATION
--------------------------
(a) Purchaser acknowledges that it has received and reviewed a
copy of the Summons and Verified Complaint dated as of December 6, 1999 in the
action captioned "5 East 41 Check Cashing Corp., Plaintiff, against NorthStar
-----------------------------------------------------------
485 5th Holding LLC and E-Z Eating 41 Corp. d/b/a Burger King, Defendants"
-------------------------------------------------------------------------
commenced in the Supreme Court of the State of New York -County of New York,
under Index No. 12458/99 (the "Check Cashing Litigation") in connection with a
------------------------
dispute with respect to certain space (the "Disputed Space") at the Property and
--------------
has been advised by Seller that settlement negotiations are currently being
conducted by Seller and the other parties to the Check Cashing Litigation.
Purchaser agrees that, prior to and following the Closing, Seller may
settle the Check Cashing Litigation upon such terms and conditions that it deems
acceptable in its sole and absolute discretion, provided that any such
settlement shall not, except as expressly permitted by the next sentence, modify
the rental payments due from either 5 East 41 Check Cashing Corp. or E-Z Eating
41 Corp. under their respective leases or the term under either the lease
entered into with 5 East 41 Check Cashing Corp. (the "Check Cashing Lease") or
-------------------
the lease entered into with E-Z Eating 41 Corp. (the "Burger King Lease"), or
-----------------
result in any loss or liability to Purchaser, or otherwise adversely affect
Landlord's rights following the Closing or increase Landlord's obligations
following the Closing under either the Check Cashing Lease or the Burger King
Lease, without the prior written consent of Purchaser, which consent may be
granted or withheld in Purchaser's sole discretion. Notwithstanding the
foregoing, Purchaser agrees that any settlement of the Check Cashing Litigation
entered into by Seller may provide for a reduction of the portion of the
Premises demised to Check Cashing by releasing the Disputed Space from such
demised portion of the Premises, as well as an extension of the Check Cashing
Lease at the expiration of its initial term for an additional term of up to ten
(10) years at a rate of rent no less than $65.84 per square foot for the period
commencing on February 1, 2006 to and including January 31, 2007, with annual
increases thereafter throughout such additional term, each such annual increase
to be in an amount no less than $2.50 per square foot, and consents thereto. In
furtherance of the foregoing, Seller will do, execute, acknowledge and deliver
all and every such further acts, leases (including modifications and amendments
to existing leases) and other documents as may be reasonably required and for
carrying out the intentions of this Section. Seller is hereby irrevocably
appointed the attorney-in-fact of Purchaser in its name and stead to execute,
acknowledge and deliver all such documents and, for that purpose, Seller may
execute any and all necessary documents reasonably required in connection with
any amendment, modification or extension of the Check Cashing Lease within the
parameters set forth above and may substitute one or more persons with like
power, Purchaser hereby ratifying and confirming all that said attorneys or such
substitute or substitutes shall lawfully do by virtue hereof. The powers herein
-42-
granted are coupled with an interest and are irrevocable. The appointment of
Seller as Purchaser's attorney-in-fact shall only apply in connection with the
extension of the Check Cashing Lease as contemplated hereby.
(b) NorthStar Capital Investment Corp. agrees to indemnify and
hold Purchaser harmless from and against any and all claims, demands, causes of
action, losses, costs and expenses (including reasonable attorneys' fees, court
costs and disbursements) arising from any claim made by either 5 East 41 Check
Cashing Corp. or E-Z Eating 41 Corp. arising out of the subject matter of the
Check Cashing Litigation.
In consideration of such indemnification, the parties hereto agree
that Seller shall have the exclusive right to undertake, conduct and control,
through counsel of its own choosing and at its own expense, the prosecution,
settlement or defense of the Check Cashing Litigation, and Purchaser shall
cooperate with it in connection therewith, provided same does not result in any
cost or liability to Purchaser. Purchaser shall, at Seller's sole cost and
expense, cooperate fully in all aspects of any investigation, defense, pretrial
activities, trial, compromise, settlement or discharge of any claim in respect
of the Check Cashing Litigation. Purchaser further acknowledges and agrees that
Purchaser shall not have the right to settle or otherwise participate in the
Check Cashing Action.
(c) In the event that the Check Cashing Litigation is not
settled on or before the ninetieth (90/th/) day after the Closing Date (the
"Cut-Off Date"), Seller shall reimburse Purchaser for any failure of 5 East
------------
41/st/ Check Cashing Corp. to pay rent due under the Check Cashing Lease from
and after the Cut-Off Date within ten (120) days after notice by Purchaser that
5 East 41/st/ Check Cashing Corp. has failed to pay the rent due and payable for
the applicable period.
(d) The provisions of this Section 35 shall survive the Closing.
----------
36. MISCELLANEOUS; DEFINITIONS.
--------------------------
(a) Whenever in this Agreement it is provided that Purchaser's
successors and/or transferees and/or assignees shall have any rights or
obligations, such phrase shall be deemed to include all designees of Purchaser
as well as all of the transferees, successors and assigns of Purchaser and such
designees.
(b) This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and together constitute one and the
same instrument.
(c) Any consent or approval to be given hereunder (whether by
Seller or Purchaser) shall not be effective unless the same shall be given in
advance of the taking of the action for which consent or approval is requested
and shall be in writing. Except as otherwise
-43-
expressly provided herein, any consent or approval requested of Seller or
Purchaser may be withheld by Seller or Purchaser in its sole and absolute
discretion.
(d) Capitalized terms used in this Agreement shall have the
meanings set forth in the Section of this Agreement referred to below:
"Affiliate" shall mean any Person which, directly or indirectly
---------
through one or more intermediaries, controls and wholly owns, is controlled
and wholly-owned by, or is under common control with and wholly-owned by, such
Person first mentioned;
"Agreement" shall have the meaning given to such term in the Preamble
---------
hereof;
"Apportionment Date" shall have the meaning given to such term in
------------------
Section 5(a) hereof;
"Assumed Debt" shall have the meaning given to such term in Section
------------
2(e) hereof;
"Assumed Debt Credit" shall have the meaning given to such term in
-------------------
Section 2(e) hereof;
"Assumed Debt Documents" shall have the meaning given to such term in
----------------------
Section 2(e) hereof;
"Broker" shall have the meaning given to such term in Section 13(a)
------
hereof;
"Building" shall have the meaning given to such term in the Recitals
--------
hereof;
"Burger King Lease" shall have the meaning given to such term in
-----------------
Section 35 hereof;
"Check Cashing Lease" shall have the meaning given to such term in
-------------------
Section 35 hereof;
"Check Cashing Litigation" shall have the meaning given to such term
------------------------
in Section 35 hereof;
"Closing" shall have the meaning given to such term in Section 17(a)
-------
hereof;
"Closing Date" shall have the meaning given to such term in Section
------------
17(a) hereof;
"Collection Period" shall have the meaning given to such term in
-----------------
Section 5(b)(ii) hereof;
-44-
"Commitment" shall have the meaning given to such term in Section
----------
4(a)(i) hereof;
"Control" (including the correlative meaning of the terms "controlled
-------
by" and "under common control with") means the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies
of an entity, whether through the ownership of voting securities, by contract
or otherwise;
"Contracts" shall have the meaning given to such term in Section 1(a)
---------
hereof;
"Damages" shall have the meaning given to such term in Section 10(b)
-------
hereof;
"Deposit" shall have the meaning given to such term in Section 2(a)
-------
hereof;
"Disputed Space" shall have the meaning given to such term in Section
--------------
35 hereof;
"Due Diligence" shall have the meaning given to such term in Section
-------------
7(d) hereof;
"Employment Agreements" shall have the meaning given to such term in
---------------------
Section 10(b)(xii) hereof;
"Engineering Reports" means all reports with respect to the structural
-------------------
or mechanical components of the located at any Property.
"Environmental Law" means the following: (i) any federal, state or
local law, statute, ordinance, rule, regulation, guideline, code, license,
permit, authorization, approval, consent, legal doctrine, order, judgment,
decree, injunction, requirement or agreement with any governmental entity,
relating to (x) the protection, preservation or restoration of the environment
(including, without limitation, air, water, vapor, surface water, groundwater,
drinking water supply, surface land, subsurface land, plant and animal life or
any other natural resource), or to human health or safety, or (y) the exposure
to, or the use, storage, recycling, treatment, generation, transportation,
processing, handling, labeling, production, release or disposal of Hazardous
Materials. The term Environmental Law includes, without limitation, (i) the
federal Comprehensive Environmental Response Compensation and Liability Act of
1980, the Superfund Amendments and Reauthorization Act, the federal Water
Pollution Control Act of 1972, the federal Clean Air Act, the federal Clean
Water Act, the federal Resource Conservation and Recovery Act of 1976
(including the Hazardous and Solid Waste Amendments thereto), the federal
Solid Waste Disposal Act and the federal Toxic Substances Control Act, the
Federal Insecticide, Fungicide and Rodenticide Act, the Atomic Energy Act, the
Nuclear Waste Policy Act of 1982, the federal Occupational Safety and Health
Act of 1970, and regulations promulgated thereunder, each as amended and as
now in effect, and (ii) any common law or equitable doctrine (including,
without limitation, injunctive relief and tort doctrines such as negligence,
nuisance, trespass and strict liability) that may impose liability
-45-
or obligations for injuries or damages due to, or threatened as a result of, the
presence of or exposure to any Hazardous Materials.
"Environmental Reports" means all reports with respect to inspections
---------------------
made to discover Hazardous Materials, if any, at the Property.
"Escrow Agent" shall have the meaning given to such term in Section
------------
2(a) hereof;
"Escrow Account" shall have the meaning given to such term in Section
--------------
2(a) hereof;
"Exculpated Parties" shall have the meaning given to such term in
------------------
Section 9(a) hereof;
"Final Closing Statement" shall have the meaning given to such term in
-----------------------
Section 5(n) hereof;
"FIRPTA" shall have the meaning given to such term in Section 20
------
hereof;
"IRS" means the Internal Revenue Service.
---
"Hazardous Materials" means any substance presently defined,
-------------------
designated or classified as hazardous, toxic, radioactive or dangerous, or
otherwise regulated under any Environmental Law, whether by type or by quantity,
including any substance containing any such substance as a component. Hazardous
Materials includes, without limitation, any toxic waste, pollutant, contaminant,
hazardous substance, toxic substance, hazardous waste, special waste, industrial
substance or petroleum or any derivative or by-product thereof, radon,
radioactive material, asbestos, asbestos containing material, urea formaldehyde
foam insulation, lead and polychlorinated biphenyl, and any and all of the
following, including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product or constituent regulated under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq.; oil and petroleum products and natural gas, natural gas liquids,
liquefied natural gas and synthetic gas usable for fuel; pesticides regulated
under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section
136 et seq.; asbestos and asbestos-containing materials, PCBs and other
substances regulated under the federal Solid Waste Disposal Act and the federal
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; source material,
special nuclear material, by-product material and any other radioactive
materials or radioactive wastes, however produced, regulated under the Atomic
Energy Act or the Nuclear Waste Policy Act of 1982; chemicals subject to the
OSHA Hazard Communication Standard, 29 C.F.R. (S)(S)1910.1200 et seq.; and
industrial process and pollution control wastes, whether or not hazardous within
the meaning of the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901 et seq.
-46-
"known to" or "knowledge of" or similar terms mean, the actual
-------- ------------
knowledge of ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇
(the "Seller Knowledge Individuals") after reasonable due inquiry in the
-----------------------------
ordinary course of business without any specific obligation to conduct their own
due diligence of the project files. Without limiting the foregoing, Purchaser
acknowledges that the Seller Knowledge Individuals have not performed and are
not obligated to perform any investigation or review of any files or other
information in the possession of Seller, or to make any inquiry of any persons
other than in the ordinary course of business without any specific obligation to
conduct their own due diligence of the project files, or to take any other
actions in connection with the representations and warranties of Seller set
forth in this Agreement. Neither the actual, present, conscious knowledge of any
other individual or entity, nor the constructive knowledge of the Seller
Knowledge Individuals or of any other individual or entity, shall be imputed to
the Seller Knowledge Individuals. Seller represents that the Seller Knowledge
Individuals are the parties employed by or on behalf of Seller who, in the
ordinary course, would be reasonably expected to be most familiar with the
operation of the Property.
"Hilfiger Lease" shall have the meaning given to such term in Section
--------------
5(b)(i) hereof;
"Hilfiger Violation" shall have the meaning given to such term in
------------------
Section 3(h) hereof;
"Land" shall have the meaning given to such term in the Recitals
----
hereof;
"Leases" shall have the meaning given to such term in Section 1(a)
------
hereof;
"Lender" shall have the meaning given to such term in Section 2(d)
------
hereof;
"Liens" shall have the meaning given to such term in Section 4(c)
-----
hereof;
"Major Tenants" shall have the meaning given to such term in Section
-------------
16(a) hereof;
"Mortgage" shall have the meaning given to such term in Section 2(e)
--------
hereof;
"New Closing Notice" shall have the meaning given to such term in
------------------
Section 4(d) hereof;
"New Seller Violation" shall have the meaning given to such term in
--------------------
Section 3(h) hereof;
"Non-Objectionable Encumbrances" shall have the meaning given to such
------------------------------
term in Section 4(a)(iv) hereof;
-47-
"Note" shall have the meaning given to such term in Section 2(e)
----
hereof;
"Notices" shall have the meaning given to such term in Section 18
-------
hereof;
"Past Due Rents" shall have the meaning given to such term in Section
--------------
5(b)(i) hereof;
"Permitted Encumbrances" shall have the meaning given to such term in
----------------------
Section 3 hereof;
"Permitted Outside Parties" shall have the meaning given to such term
-------------------------
in Section 29(a) hereof;
"Person" shall mean an individual, corporation, partnership, limited
------
liability company, joint venture, estate, trust, unincorporated association, any
federal, state, county or municipal government or any bureau, department,
authority or agency thereof.
"Personalty" shall have the meaning given to such term in Section 1(a)
----------
hereof;
"Preliminary Closing Statement" shall have the meaning given to such
-----------------------------
term in Section 5(n) hereof;
"Premises" shall have the meaning given to such term in the Recitals
--------
hereof;
"Proceeding" shall have the meaning given to such term in Section
----------
10(b) hereof;
"Proceeds" shall have the meaning given to such term in Section 10(b)
--------
hereof;
"Property" shall have the meaning given to such term in Section 1(a)
--------
hereof;
"Property Taxes" shall have the meaning given to such term in Section
--------------
5(a)(ii) hereof;
"Proposed Amendment" shall have the meaning given to such term in
------------------
Section 34 hereof;
"Purchase Price" shall have the meaning given to such term in Section
--------------
2 hereof;
"Purchaser" shall have the meaning given to such term in the Preamble
---------
hereof;
"Rents" shall have the meaning given to such term in Section 5(a)(i)
-----
hereof;
-48-
"RET" shall have the meaning given to such term in Section 15(a)
---
hereof;
"Reserves" shall have the meaning given to such term in Section 2(e)
--------
hereof;
"RPT" shall have the meaning given to such term in Section 15(a)
---
hereof;
"Seller" shall have the meaning given to such term in the Preamble
------
hereof;
"Scheduled Closing" shall have the meaning given to such term in
Section 17 hereof;
"Taking" shall have the meaning given to such term in Section 12(a)
------
hereof;
"Tenant Inducement Costs" shall have the meaning given to such term in
-----------------------
Section 5(k) hereof;
"Title Company" shall have the meaning given to such term in Section
-------------
4(a)(i) hereof;
"Title Cure Notice" shall have the meaning given to such term in
-----------------
Section 4(a)(iv) hereof;
"Title Cure Period" shall have the meaning given to such term in
-----------------
Section 4(a)(iii) hereof;
"Title Objections" shall have the meaning given to such term in
----------------
Section 4(a)(i) hereof;
"Transferred Security Deposits" shall have the meaning given to such
-----------------------------
term in Section 16(a)(ix) hereof;
"Update Exception" shall have the meaning given to such term in
----------------
Section 4(a)(ii) hereof;
"Update Objection Date" shall have the meaning given to such term in
---------------------
Section 4(a)(ii) hereof;
"Utilities" shall have the meaning given to such term in Section
---------
5(a)(iii) hereof; and
"1999/2000 Tax Year" shall have the meaning given to such term in
------------------
Section 14 hereof.
-49-
"Violation" shall have the meaning given to such term in Section 3(h)
---------
hereof;
"ZLDA" shall have the meaning given to such term in Section 34 hereof;
----
"ZLDA Memo" shall have the meaning given to such term in Section 34
---------
hereof;
Wherever it is provided in this Agreement that a party "may" perform
an act or do anything, it shall be construed that party "may, but shall not be
obligated to," so perform or so do. The following words and phrases shall be
construed as follows: (i) "at any time" shall be construed as "at any time or
from time to time"; (ii) "any" shall be construed as "any and all"; (iii)
"including" shall be construed as "including but not limited to"; (iv) "will"
and "shall" shall each be construed as mandatory and (v) "withhold" (or
"withheld") shall be construed as "withhold (withheld), condition(ed) or
delay(ed)." Any time any reference is made to reasonable approval or consent,
such phrase shall be construed as including a restriction against any
unreasonable delay or condition relating to the giving of such approval or
consent. Except as otherwise specifically indicated, all references to Article
or Section numbers or letters shall refer to Articles and Sections of this
Agreement and all references to Exhibits or Appendices shall refer to the
Exhibits and Appendices attached to this Agreement. Words such as "herein,"
"hereinafter," "hereof," "hereto" and "hereunder," when used with reference to
this Agreement, refer to this Agreement as a whole and not to any particular
Section or subsection, unless the context otherwise requires. Forms of words in
the singular, plural, masculine, feminine or neuter shall be construed to
include the other forms as the context may require. Captions and the index are
used in this Agreement for convenience only and shall not be used to construe
the meaning of any part of this Agreement.
[SIGNATURE PAGE FOLLOWS]
-50-
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to
be executed the day and year first above written.
SELLER:
-------
NORTHSTAR 485 5TH HOLDING LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice-President
PURCHASER:
----------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A., Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
BY ITS EXECUTION BELOW, THE
UNDERSIGNED AGREES TO BE BOUND
BY THE PROVISIONS OF SECTIONS 8(c), 8(d),
34(b) and 35(b) HEREOF:
NorthStar Capital Investment Corp.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice-President
-51-