237 PROPERTY CONTRIBUTION AGREEMENT
between
237/1290 UPPER TIER ASSOCIATES, L.P.
237/1290 LOWER TIER ASSOCIATES, L.P.
and
237 PARK PARTNERS, L.P.
Dated as of October 10, 1996
C/M: 11764.0001 345765.9
237 PROPERTY CONTRIBUTION AGREEMENT
AGREEMENT, dated as of October 10, 1996, between 237/1290
UPPER TIER ASSOCIATES, L.P., a Delaware limited partnership having an office c/o
Olympia & York Companies (U.S.A.), ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (the "Grantor"), 237/1290 LOWER TIER ASSOCIATES, L.P., a Delaware
limited partnership having an office c/o ▇▇▇▇▇▇ Capital Group, L.P., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ - 12th Floor, New York, New York 10022, Attn: ▇▇▇▇ ▇▇▇▇▇ (the "Limited
Partner") and 237 PARK PARTNERS, L.P., a Delaware limited partnership having an
office c/o ▇▇▇▇▇▇ Capital Group, L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - 12th Floor, New York,
New York 10022, Attn: ▇▇▇▇ ▇▇▇▇▇ (the "Partnership").
W I T N E S S E T H:
WHEREAS, Grantor is the fee owner of the land commonly known
as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ and more particularly described in
Exhibit A annexed hereto (the "Land") and the improvements located thereon;
WHEREAS, on April 23, 1996, cases were commenced against 1290
Associates, L.L.C. and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates, L.L.C. (collectively, the
"Debtors") under Chapter 11 of title 11 of the United States Code in the United
States Bankruptcy Court for the Southern District of New York (the "Bankruptcy
Court");
WHEREAS, pursuant to the Second Amended Joint Plan of
Reorganization of the Debtors filed with the Bankruptcy Court (the "Plan"), (i)
the Debtors have merged into Grantor pursuant to that certain Agreement and Plan
of Merger dated as of the date hereof (the "Merger Agreement"), and (ii)
Grantor, as successor to the Debtors, has agreed to transfer and contribute its
right, title and interest in and to the Land, the improvements thereon and the
other property described herein to the Limited Partner and the Limited Partner
agreed to issue to Grantor a five percent (5%) interest as a limited partner in
the Limited Partner;
WHEREAS, pursuant to the Plan, the Limited Partner has agreed
to transfer and contribute to the Partnership the Limited Partner's right, title
and interest in and to the property contributed by Grantor to the Limited
Partner and the Partnership has agreed to issue to the Limited Partner a
ninety-nine percent (99%) interest as a limited partner in the Partnership; and
WHEREAS, by order dated September 20, 1996, the Bankruptcy
Court confirmed the Plan and authorized the transactions contemplated hereby
(the "Confirmation Order").
NOW, THEREFORE, in consideration of the mutual promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor, the Limited Partner and
the Partnership hereby agree as follows:
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ARTICLE I
CONTRIBUTION OF THE PROPERTY
Section 1.1 Transfer of the Property. Grantor, concurrently
herewith, shall transfer, assign, convey and contribute to the Limited Partner
(subject to the direction of the Limited Partner provided in paragraph 1.2(b)
below to make such transfer directly to the Partnership) all of Grantor's right,
title and interest, free and clear of any liens, charges, encumbrances, security
interests, options or rights or claims with respect thereto (except for
encumbrances and other matters permitted hereunder), in and to the following
real and personal property (herein collectively referred to as the "Property"):
(a) the Land and the buildings and improvements situated
thereon (the "Improvements", the Land and the Improvements being collectively
referred to as the "Real Property");
(b) any land lying in the bed of any highway, street, road or
avenue, open or proposed, in front of or adjoining all or any part of the Real
Property, to the center line thereof, and to any award made, or to be made, in
lieu thereof, and in and to any unpaid award for damage to the Real Property by
reason of change of grade of any such highway, street, road or avenue;
(c) easements, rights and appurtenances belonging or
appertaining to the Real Property, including, without limitation, all
development rights, air rights, zoning rights and any adjacent vaults, alleys,
strips or gores of land, sidewalks, driveways and parking areas;
(d) all fixtures, machinery, equipment and supplies located at
or used in connection with the Real Property and all intangible personal
property owned by Grantor in connection with the ownership, development,
leasing, management, use or operation of the Real Property, including but not
limited to assignable contract rights, brochures, manuals, advertising material,
the trade name "Park Avenue Atrium" and the right to pursue any pending tax
certiorari proceedings relating to the Real Property and to commence such
proceedings with respect to the period prior to the date hereof, but excluding
the proprietary computer software program used by Grantor and the "O&Y" or
"Olympia & York" trade names (collectively, the "Personalty");
(e) all of Grantor's right, title and interest as lessor in
all leases, licenses and other agreements to occupy all or any part of the Real
Property, together with any separate guaranties of such leases, licenses and
other agreements (collectively, the "Leases") together with all rents and other
sums due, accrued or to become due under each such Lease and all lease security
deposits and notes or other evidences of indebtedness from tenants under Leases
and related thereto;
(f) all of Grantor's right, title and interest in and to all
service, supply and maintenance contracts, equipment leases and all other
contracts and agreements (including purchase orders) relating to the ownership,
development, leasing, operation, management or maintenance of the Real Property,
other than the Property Management Agreement with O&Y Management Corp. which is
being terminated pursuant to the Plan (the "Contracts");
(g) all surveys, plans, specifications, drawings and the like
used in the construction, improvement, alteration or repair of the Improvements
(the "Plans and Specifications") and all
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C/M: 11764.0001 345765.9
unexpired claims, warranties, guarantees, and sureties, if any, received in
connection with the construction or improvement or fixtures or equipment on the
Real Property, if and to the extent assignable ("Warranties"); and
(h) all licenses, permits, certificates of occupancy, and
franchises (including, without limitation, those listed on Exhibit B attached
hereto and incorporated herein) issued by any federal, state, county or
municipal authority relating to the use, maintenance, or operation of the Real
Property (the "Permits"), running to, or in favor of Grantor or the Real
Property, but only to the extent such transfer is not prohibited by law.
Section 1.2 Issuance of Partnership Interest. (a) In
consideration of the contribution of the Property by Grantor to or at the
direction of the Limited Partner, and in reliance upon the representations,
warranties and covenants made herein by Grantor, the Limited Partner is issuing
to Grantor a five percent (5%) interest as a limited partner in the Limited
Partner as more fully set forth in the agreement of limited partnership of the
Limited Partner (the "Upper Tier LP Interest").
(b) The Limited Partner hereby directs Grantor to transfer the
Property directly to the Partnership with the purpose and intent of such
transfer constituting the contribution of the Property by the Limited Partner to
the Partnership. In consideration, in part, of the contribution of the Property
by the Limited Partner to the Partnership, and in reliance upon the
representations, warranties and covenants made herein by Grantor, the
Partnership is issuing to the Limited Partner a ninety-nine percent (99%)
interest as a limited partner in the Partnership as more fully set forth in the
agreement of limited partnership of the Partnership (the "Lower Tier LP
Interest").
ARTICLE II
THE CLOSING
Section 2.1 Closing. The Closing shall be held concurrently
herewith.
Section 2.2 Conditions to the Partnership's Obligations. (a)
The Limited Partner's and the Partnership's obligation to accept the Property
and issue the Upper Tier LP Interest and the Lower Tier LP Interest,
respectively, are subject to the satisfaction by Grantor (or waiver by the
Limited Partner and the Partnership) of each of the following conditions:
(i) Representations and Warranties Correct; Covenants
Performed. All representations and warranties of Grantor made in, or pursuant
to, this Agreement shall be true and correct in all material respects and
Grantor shall have performed all of its covenants hereunder in all material
respects.
(ii) Acquisition of the Property, Title Insurance. The
Partnership shall acquire good and valid title to the Property free and clear of
any liens, charges, encumbrances, security interests, options or rights or
claims with respect thereto (collectively, "Encumbrances"), other than those
matters affecting title to the Real Property described on Exhibit C annexed
hereto ("Permitted Encumbrances"). To the extent the Partnership elects, a
nationally recognized title company or title companies (the "Title Company")
shall issue a policy of title insurance (the "Title Policy") in an amount
reasonably satisfactory to the Partnership insuring in the
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C/M: 11764.0001 345765.9
Partnership, all right, title and interest in and to the Real Property in fee
simple absolute, subject only to the Permitted Encumbrances.
(iii) Plan Confirmation, No Injunction. The Bankruptcy
Court shall have issued its order confirming the Plan and there shall not be in
effect any preliminary or permanent injunction, decree or other order
restraining or prohibiting the consummation of the transactions contemplated by
this Agreement.
(iv) No Hazardous Material. No Hazardous Material (as
defined in Section 3.14 below) shall be present at the Property other than those
customarily used, stored and contained in quantities, and in such manner, that
do not violate any law or regulation relating thereto (including, without
limitation, heating oil, cleaning fluids and supplies, refrigerants and paint)
or as otherwise disclosed in Section 3.13 below or in Exhibit P hereto.
(v) Other Conditions. All other conditions to Closing
set forth in this Agreement have been satisfied.
(b) Notwithstanding the provisions of paragraph (a) above and
Section 1.1, the Limited Partner and the Partnership shall be obligated to
accept the Property if there is an Encumbrance (other than a Permitted
Encumbrance) affecting title to the Property which the Title Company is
unwilling to omit as an exception in the Title Policy, if there are Hazardous
Materials at the Property, provided that the aggregate of (i) the amount
required to satisfy, discharge or otherwise remove the Encumbrance (or if less,
the reduction in value of the Property occurring by reason of the existence of
such Encumbrance), (ii) the amount required to remediate to a level required by
the applicable governmental authority in a manner reasonably acceptable to the
Partnership (but only to the extent such remediation is legally required) any
environmental matter (x) not disclosed in the Environmental Report (as defined
in Section 3.13 below) or in Exhibit P to the form of this Agreement which was
filed on August 22, 1996 together with the Plan or (y) with respect to which a
tenant, utility or a governmental agency is responsible, and together with (iii)
all such amounts similarly outstanding under the Contribution Agreement of even
date herewith relating to the property known as 1290 Avenue of the Americas, New
York, New York, does not exceed $3,000,000.
Section 2.3 Grantor's Closing Deliveries. Grantor shall
deliver the following documents to the Partnership at the Closing:
(a) a recordable bargain and sale deed without covenants
against grantor's acts in New York statutory form, executed and acknowledged by
Grantor conveying the Real Property to the Partnership in the form annexed
hereto as Exhibit D;
(b) an assignment of all right, title and interest of Grantor
under the Leases, which shall include the Partnership's assumption of Grantor's
obligations under the Leases accruing from and after the date hereof and prior
to the date hereof (but only to the extent not discharged under the Plan and the
Confirmation Order), in the form annexed hereto as Exhibit E;
(c) an assignment of all right, title and interest of Grantor
under the Contracts, which shall include the Partnership's assumption of
Grantor's obligations under the Contracts accruing from and after the date
hereof and prior to the date hereof (but only to the extent not discharged under
the Plan and the Confirmation Order), in the form annexed hereto as Exhibit F;
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(d) a ▇▇▇▇ of sale conveying Grantor's right title and
interest in and to the Personalty, in the form annexed hereto as Exhibit G;
(e) the RET Return and the RPT Return (all as defined in
Section 2.6 below), executed and acknowledged by Grantor, together with the
payment, if any, required by Section 2.6 below which shall be paid from closing
cash under the Plan;
(f) such further instruments as may be necessary to be
executed by Grantor to record the deed;
(g) a copy of the order of the Bankruptcy Court approving the
transfer of the Property to the Partnership;
(h) a letter to tenants under Leases and vendors under
Contracts in the form annexed hereto as Exhibit H, advising them of the transfer
of the Property to the Partnership and directing them to make all payments and
to render performance to the Partnership;
(i) to the extent in the possession or control of Grantor, its
United States affiliates and agents, originals (or copies to the extent that
originals are not available) of all Leases, Contracts, Warranties, Permits and
Plans and Specifications;
(j) copies of the most recently issued real estate tax bills
for the Premises, Grantor's files and records regarding pending tax certiorari
claims relating to the Real Property, all other books, records, bills, invoices,
lease files, credit reports and other documents related to the ownership,
development, operation, management, use, maintenance or leasing of the Real
Property in the possession of Grantor, its United States affiliates and agents
that the Partnership, in its reasonable discretion, requires.
(k) a written certification ("FIRPTA Certificate") in form
annexed hereto as Exhibit I, which certification shall be in compliance with the
Tax Reform Act of 1984 (the "Act") and the regulations thereunder that are
imposed by the Foreign Investment in Real Property Tax Act ("FIRPTA") and
certifying that Grantor is not a person or entity subject to withholding under
FIRPTA and the Act;
(l) Such customary and reasonable affidavits, documents or
instruments as the Title Company may require in order to issue the Title Policy;
(m) such evidence as may be reasonably required by the Title
Company and the Partnership of the due authorization, execution and delivery of
this Agreement and the other documents to be executed in connection with this
Agreement, including, without limitation, a certified copy of Grantor's articles
of organization or operating agreement;
(n) all security deposits delivered to Grantor under the
Leases which have not been previously applied or repaid to the tenants
thereunder;
(o) all keys and security alarm codes, if any, to the Real
Property in the possession of Grantor, its United States affiliates and agents;
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C/M: 11764.0001 345765.9
(p) a letter from the actuary for the defined benefit pension
plan covering the union employees described in Exhibit O that participate in any
such plan stating that there is no withdrawal liability assuming a withdrawal as
of June 30, 1996 or, if there is any, it is not greater than $100,000 (together
with any similar liability with respect to 1290 Avenue of the Americas),
provided that if such actuary is unable to deliver such a letter due to
information not then being available, Grantor shall deliver such a letter with
respect to a withdrawal as of a date not earlier than June 30,1995 and shall
deliver evidence that it has made all contributions required of it to such plan
since such date; and
(q) copies of all lien waivers, if any, relating to material
work currently being performed at the Property.
Section 2.4 The Limited Partner's Closing Deliveries. (a) The
Limited Partner shall deliver to Grantor at the Closing copies of the Limited
Partner's Agreement of Limited Partnership and Certificate of Limited
Partnership.
(b) The Partnership's Closing Deliveries. The Partnership
shall deliver the following documents to Grantor at the Closing:
(A) The Partnership's executed counterparts of the assignment
and assumption documents referenced in Section 2.3(b);
(B) The RET Return and the RPT Return, executed and
acknowledged by the Partnership;
(C) copies of the Partnership's Agreement of Limited
Partnership and Certificate of Limited Partnership; and
(D) unless the Partnership shall assume such obligations in
the assignment and assumption agreement referenced in Section 2.3(c), an
assumption by the Partnership or the Partnership's property manager of the labor
agreements described in Exhibit O annexed hereto. The Partnership hereby agrees
to offer or to cause the Partnership's property manager to offer to the
non-union employees of Grantor described in Exhibit O (other than the property
manager described therein) the choice of (A) employment (i) at the same wages
and rate of vacation and severance accrual as is currently applicable to such
employees as described in Exhibit O, (ii) with such other benefits as are
customarily paid by the Partnership or its property manager (and its
affiliates), and (iii) with assumption by the Partnership or such property
manager of such employee's existing benefits of accrued vacation and severance,
or (B) payment of the severance and accrued vacation costs described therein
except to the extent any such non-union employee rejects employment with the
Partnership or its property manager and accepts employment with any United
States affiliate of Grantor. The Grantor of the Partnership acknowledges that
the Debtors, on or about the date hereof, shall pay from the moneys held under
the Cash Collateral Stipulation the accrued salary, vacation and severance costs
described in Exhibit O hereto for the property manager.
Section 2.5 Further Assurances. Grantor, the Limited Partner
and the Partnership, at the Effective Date, or at any time or from time to time
thereafter, upon request of the other party, will execute such additional
instruments, documents or certificates as such other party reasonably requests
in order to effectuate the transactions contemplated hereby.
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Section 2.6 Closing Expenses.
(a) Title and Survey. The Partnership shall bear all costs of
obtaining the Title Policy, as well as any costs in updating the existing survey
of the Real Property.
(b) Real Estate Transfer Tax. Grantor, the Limited Partner and
the Partnership agree to comply timely with the requirements of Article 31 of
the New York Tax Law and the regulations applicable thereto, as the same may be
amended from time to time with respect to the transactions contemplated by the
Merger Agreement and this Agreement. Grantor and, if required, the Limited
Partner and the Partnership shall swear to and deliver the return required by
said statute and the regulations issued pursuant to the authority thereof (the
"RET Return"), it being acknowledged by the parties that Grantor intends to file
an RET Return stating that, pursuant to the provisions of Section 1146(c) of the
federal Bankruptcy Code, the transfer of the Property pursuant to the Merger
Agreement and this Agreement shall be exempt from the Real Estate Transfer Tax
imposed by said Article 31.
(c) Real Property Transfer Tax. Grantor, Limited Partner and
the Partnership agree to comply timely with the requirements of Chapter 21 of
Title 11 of the Administrative Code of the City of New York and the regulations
applicable thereto, as the same may be amended from time to time with respect to
the transactions contemplated by the Merger Agreement and this Agreement.
Grantor and, if required, the Limited Partner and the Partnership shall swear to
and deliver the return required by said statute and the regulations issued
pursuant to the authority thereof (the "RPT Return"), it being acknowledged by
the parties that Grantor intends to file an RPT Return stating that, pursuant to
the provisions of Section 1146(c) of the federal Bankruptcy Code, the transfer
of the Property pursuant to the Merger Agreement and this Agreement shall be
exempt from the Real Estate Transfer Tax imposed by said Chapter 21.
(d) Recording Charges. Grantor shall pay all recording charges
payable in connection with the recording of the deed and other documents to be
recorded hereunder.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF GRANTOR
Grantor hereby represents, warrants and covenants to the
Partnership that the following statements are true and accurate:
Section 3.1 Due Organization and Authority. Grantor is a
limited liability company duly organized, validly existing and in good standing
under the law of the State of New York and has the power and authority to enter
into and to perform this Agreement. The execution, delivery and performance of
this Agreement by Grantor has been duly authorized by all requisite actions and
proceedings of Grantor, subject to issuance by the Bankruptcy Court of an order
confirming the Plan.
Section 3.2 Performance and Enforceability. The execution,
delivery and performance by Grantor of this Agreement and any related
instruments and documents do not and will not (i) contravene the articles of
organization or the operating agreement of Grantor or (ii) result in any
violation by Grantor of any law, rule or regulation applicable to it or the
Property or result in the
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creation of any lien, charge, encumbrance, security interest, option or right or
claim with respect thereto other than a Permitted Encumbrance.
Section 3.3 Consents and Filings. No consent, license, permit,
approval, order or authorization of, or filing with any governmental or judicial
authority is required to be obtained or made in connection with the execution,
delivery or performance by Grantor of this Agreement or the consummation of the
transactions to be consummated by Grantor hereunder other than an order of the
Bankruptcy Court confirming the Plan.
Section 3.4 Grantor's Ownership of the Property. Grantor is
the sole legal and beneficial owner, with sole power to dispose of, the
Property. Grantor is not a "foreign person" within the meaning of FIRPTA.
Section 3.5 Rent Roll and Leases. As of the date hereof, there
are no leases or occupancy agreements affecting the Property or any part thereof
in which the owner of the Property is the landlord/licensor except for the
Leases identified on Exhibit J annexed hereto. There are no leases, subleases or
other occupancy agreements affecting the Property under which Grantor or any
affiliate is the tenant, subtenant or licensee other than with respect to the
12th and 13th floors of the Premises. The Rent Roll annexed hereto as Exhibit J
is complete and correct in all material respects as of the date thereof and
accurately reflects all arrearages as of such date. No option or other right to
purchase all or any portion of the Property has been granted to any tenant or
other party other than the right of first offer contained in the lease with
Swiss Re America Holding Corporation et. al. described in Exhibit J hereto.
Exhibit J accurately reflects all security deposits currently held by Grantor
under the Leases.
To Grantor's knowledge, Grantor has delivered to the
Partnership true, correct and complete original counterparts of all the Leases
and all modifications, amendments and supplements thereof in its possession or
in the possession of its agents or United States affiliates. To Grantor's
knowledge, all of the leases identified in Exhibit J annexed hereto are in full
force and effect and Grantor is the lawful holder of the lessor's interest in
Leases.
Section 3.6 Contracts. To the knowledge of Grantor, Exhibit K
annexed hereto accurately reflects all Contracts affecting the ownership or
operation of the Property or the Personalty that are being assumed by Grantor
under the Plan and by the Partnership hereunder, including Contracts for work
being performed at the Property and brokerage agreements.
Section 3.7 Real Estate Taxes. No tax certiorari proceedings
are currently pending with respect to the Property or Grantor except as
described on Exhibit L hereto.
Section 3.8 Brokerage Commissions. To the knowledge of
Grantor, all brokerage commissions which are on the date hereof due and payable
with respect to any Leases have been fully paid or have been released under the
Plan, except for the brokerage commissions set forth in Exhibit M annexed
hereto.
Section 3.9 Condemnation. To the knowledge of Grantor, there
is no pending condemnation, expropriation, eminent domain, or similar proceeding
affecting all or any portion of the Property nor has Grantor received any notice
that any such proceeding is threatened.
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Section 3.10 Litigation. All actions, suits or proceedings
brought by Grantor or its affiliated predecessors in interest relating to the
Property, any Lease or Contract or relating to or arising out of the ownership,
management or operation of the Property, and pending in any court or before or
by any federal, state, county or municipal department, commission, board, bureau
or agency or other governmental instrumentality are described in Exhibit N
hereto. Grantor shall, at the Partnership's request, take such action as may be
required to assign its rights under such actions, suits or proceedings to the
Partnership and to cause the Partnership to be substituted as a named party
therein.
Section 3.11 Zoning. To the knowledge of Grantor, there are no
petitions, actions or hearings relating to or affecting the zoning or use of the
Real Property except as disclosed in writing to the Partnership concurrently
herewith.
Section 3.12 Employees. There are no persons at the Real
Property who are presently employed by Grantor other than those listed on
Exhibit O attached hereto and, other than as shown on Exhibit O, none of the
persons who are presently employed by Grantor are employed under any union or
other employment contract, written or otherwise.
Section 3.13 Environmental Matters. Grantor has received
copies of the Phase I Environmental Report dated April 15, 1996 prepared by
AquaTerra with respect to the environmental condition of the Property (the
"Environmental Report"). To the actual knowledge of Grantor: (i) except as noted
in the Environmental Report or in Exhibit P hereto, no portion of the Property
contains any hazardous, toxic or harmful material, substance, waste or
contamination, whether man-made or naturally occurring ("Hazardous Materials")
which is in need of remediation in order to prevent injury to persons, material
damage to property or criminal liability and (ii) Grantor and its affiliated
predecessors have received no written notice from any governmental unit or other
person that the Property is not or has not been in compliance with Environmental
Laws which has not been cured.
The term "Environmental Laws" shall mean and include all
federal, state and local statutes, ordinances, regulations and rules in effect
on the date hereof relating to environmental quality, contamination and
clean-up, including, without limitation, the Clean Air Act, 42 U.S.C. Section
7401 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq., and the Water
Quality Act of 1987; the Federal Insecticide, Fungicide, and Rodenticide Act 7
U.S.C. Section 136 et seq.; the Marine Protection, Research, and Sanctuaries
Act, 33 U.S.C. Section 1401 et seq.; the National Environmental Policy Act, 42
U.S.C. Section 4321 et seq.; the Occupational Safety and Health Act, 29 U.S.C.
Section 651 et seq.; the Resource Conservation and Recovery Act 42 U.S.C.
Section 6901 et seq., as amended by the Hazardous and Solid Waste Amendments of
1984; the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; the
Comprehensive Environmental Response, Compensation and Liability Act 42 U.S.C.
Section 9601 et seq., as amended by the Superfund Amendments and Reauthorization
Act, the Emergency Planning and Community Right-to-Know Act and the Radon Gas
and Indoor Air Quality Research Act; the Toxic Substances Control Act 15 U.S.C.
Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C. Section 2011 et seq., and
the Nuclear Waste policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and state
and local environmental statutes and ordinances, with implementing regulations
and rules in effect on the date hereof.
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Section 3.14 Personal Property. To the knowledge of Grantor,
the personal property being conveyed pursuant to the terms hereof is being
transferred free and clear of liens and encumbrances, except for the lien of
that certain Mortgage Spreader and Consolidation Agreement and Trust Indenture
dated as of March 20, 1984 between Fame Associates, O&Y Equity Corp., Olympia &
York Holdings Corporation (the predecessors-in-interest to Assignor), Olympia &
York 2 Broadway Land Company, Olympia & York 2 Broadway Company and
Manufacturers Hanover Trust Company, as the same may have been amended from time
to time.
Section 3.15 The term "knowledge" as used in this Article III
shall mean the actual knowledge of ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and Roman Mykytink
and with respect to Sections 3.5 and 3.8 only, ▇▇▇▇▇▇ ▇▇▇▇▇.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Notices. All notices, requests, demands and other
communications made hereunder shall be in writing and shall be deemed duly given
when personally delivered against receipt or after deposit with the post office
by registered or certified mail, postage prepaid and return receipt requested,
as follows, or to such other address or person as a party may hereafter
designate by notice to the other party:
If to Grantor: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates, L.L.C.
c/o Olympia & York Companies (U.S.A.)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Managing Attorney
with a copy to: Weil, Gotshal & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
and: Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
and: JMB/NYC Office Building Associates, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
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If to the Limited Partner: 237/1290 Lower Tier Associates, L.P.
c/o ▇▇▇▇▇▇ Capital Group, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
with a copy to: Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
If to the Partnership: 237 Park Partners, L.P.
c/o ▇▇▇▇▇▇ Capital Group, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
with a copy to: Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Section 4.2 Survival; As Is. Except for the provisions of
Section 2.5 and 4.8 hereof, none of the provisions of this Agreement shall
survive the Closing. Except as otherwise provided herein, the Property is being
transferred to the Partnership on an "as-is, where-is" basis. The acceptance by
the Partnership of the Deed and other documents to be delivered by Grantor
hereunder at the Closing pursuant to Section 2.3 shall be deemed to be full
performance and discharge of every obligation on the part of Grantor to be
performed hereunder and all provisions of this Agreement shall merge in the
Deed, except as specifically provided herein to the contrary.
Section 4.3 Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors, legal
representatives and permitted assigns, but this Agreement may not be assigned by
either party without the written consent of the other party or pursuant to an
order of the Bankruptcy Court.
Section 4.4 Captions; Counterparts. The captions in this
Agreement are for convenience of reference only, do not form a part hereof and
do not in any way modify, interpret or construe the intentions of the parties.
This Agreement may be executed in two or more counterparts, all of which shall
constitute one and the same instrument.
Section 4.5 Enforceability; Severability. If any one or more
of the provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions of this Agreement shall not be affected thereby. To the extent
permitted by applicable law, each party waives any provision of law which
renders any provision of this Agreement invalid, illegal or unenforceable in any
respect.
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Section 4.6 Entire Agreement. This Agreement sets forth the
entire understanding of the parties. This Agreement may be modified only by
written instrument duly executed by each party. No breach of any agreement,
warranty or representation shall be deemed waived unless expressly waived in
writing by the party who might assert such breach.
Section 4.7 Applicable Law. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of New
York without giving effect to its conflict of laws rules.
Section 4.8 Cooperation. The Partnership (at no cost or
expense to the Partnership) shall provide reasonable cooperation to Grantor, its
U.S. affiliates and their insurance carriers with respect to any insured claims
which may be brought against any such entity. Such cooperation shall include (i)
making personnel (including building managers previously employed by Grantor or
its U.S. Affiliates) available to meet with representatives of such insurance
carrier and attend depositions and/or trials at reasonable times, on reasonable
notice and at no cost to the Partnership for so long as such personnel are
employed by the Partnership (or its managing agent), and (ii) providing access
to (and copies of) building books and records, including building logs and
service contracts attributable to the period of Grantor's and its predecessors
in interest's period of ownership (to the extent available) as may be reasonably
requested and on reasonable notice and at no cost to the Partnership.
The provisions of this Section 4.8 shall survive the Closing.
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IN WITNESS WHEREOF, the parties hereto have duly executed or
caused this Agreement to be duly executed on the day and year first above
written.
237/1290 UPPER TIER ASSOCIATES, L.P.
By: O&Y NY Building Corp., its general partner
By:
Name:
Title:
237/1290 LOWER TIER ASSOCIATES, L.P.
By: Metropolis Realty Trust, Inc., its
general partner
By:
Name:
Title:
237 PARK PARTNERS, L.P.
By: 237 GP Corp., its general partner
By:
Name:
Title:
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EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
ALL that certain lot, piece or parcel of land, excepting so much thereof as is
excepted and reserved herein, situate, lying and being in the Borough of
Manhattan, City, County and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the Northerly side of ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ with the Westerly side of Lexington Avenue; running
THENCE Northerly along the Westerly side of Lexington Avenue 200 feet 10 inches
to the Southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
THENCE Westerly along the Southerly side of East 46th Street 325 feet;
THENCE Southerly parallel with the Westerly side of Lexington Avenue 200 feet 10
inches to the Northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇; and
THENCE Easterly along the Northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 325 feet to the
corner aforesaid, the point or place of BEGINNING.
EXCEPTING therefrom so much of the described premises as was reserved to the
grantor (Trustees of Penn Central) by deed recorded in Reel 442 P. 1353.
TOGETHER with the easements set forth in said deed.
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EXHIBIT B
LIST OF PERMITS
[To be completed on Effective Date]
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EXHIBIT C
PERMITTED ENCUMBRANCES
A. All Leases identified in Exhibit J and the rights of tenants
thereunder, all subleases, if any, from such tenants, all
sub-subleases, if any, and all rights of Persons claiming directly or
indirectly through tenants identified in Exhibit J (e.g., a UCC-1
financing statement of a secured lender to a tenant, whether or not
such security interest or the recordation of such instrument is
permitted under such tenant's Lease or a mechanic's lien against the
tenant's interest in the Property in connection with work performed for
a tenant). No such party shall have any right or option to purchase all
or any portion of the Property.
B. Any non-disturbance agreement or other agreement between Trustee and
any tenant, subtenant or other person with an interest in the
Property.
C. Any violation of a legal requirement.
D. The Indenture, as the same may be amended and restated in accordance
with the Plan and any Financing Documents running to the benefit of the
Trustee under the Indenture and any replacement mortgage and related
documents executed pursuant to the Plan.
E. Liens of any governmental authorities for taxes, assessments, rents,
charges, fees and other amounts payable with respect to the Property.
F. State of facts shown on survey by ▇▇▇▇ ▇. ▇▇▇▇▇▇-▇.▇. ▇▇▇▇▇▇▇, Inc.
dated 12/7/82 amended 1/20/84 and such further facts as an inspection
of the Property might show.
G. Any other matter the Title Company is willing to delete as an
exception to title at no additional cost or premium.
H. Liens of mechanics, materialmen and laborers which pursuant to the
Plan the Partnership is to take title to the Property subject to.
I. "General", "standard" or "printed" exceptions in the Partnership's
title insurance commitment provided that the rights of tenants shall
be limited to their rights as tenants only under leases and without
any right or option to purchase the Property.
J. Any exceptions to title created by the Partnership or relating to the
Partnership.
K. Any matter which was consented to by the Trustee or a Majority of the
Noteholders.
L. The following additional title exceptions:
1. The most westerly 50 feet of the described premises lies in
the bed of a former private way between 45th and 46th Streets.
Easement on and over premises by reason thereof, but policy
insures that notwithstanding same the existing buildings and
improvements may remain undisturbed as long as buildings
stand.
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2. Easements contained in amended easement agreement dated
3-12-84, recorded 3-15-84 in Reel 774 Page 323, between O & Y
EQUITY CORP., OLYMPIA & YORK HOLDINGS CORPORATION, f/k/a
Olympia & York Investments Corporation, and FAME ASSOCIATES,
as tenants-in-common (collectively, "Olympia & York"), and ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, affecting the most westerly 52 feet of
the premises, buy policy insures that notwithstanding same the
existing buildings and improvements may remain undisturbed as
long as the building stands.
3. Easements and Reservations contained in Deeds recorded in
Reel 361 P. 418 and Reel 361 P. 443 as set forth in Paragraph
27 of the 1st deed and Incorporated by reference in the
second deed, which deeds convey the land and building of
premises known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ as such easements and
reservations may affect the premises described herein, but
policy insures that the premises insured in Schedule A do not
violate the easements and reservations set forth in deed
recorded in Reel 361 P. 418 and Reel 361 P. 443 (hereinafter
the 230 Easements) and policy further insures that said 230
Easements will not be enforced against the building located
on the insured premises from the underside of the beams and
girders supporting the lobby floor and upward or otherwise.
4. Covenants and Restrictions recorded in Liber 2356 cp 273,
Liber 911 cp 408, Liber 1738 cp 419, Liber 892 cp 385, Liber
1198 cp 523, and Liber 892 cp 380, Liber 2256 cp 53 and Liber
2075 cp 471, Liber 917 cp 275 referred to in Liber 968 cp 512
as the same may be modified by Liber 175 cp 279 Sec. 5.
Policy insures that the aforesaid covenants and restrictions
will not be enforced so as to prohibit the maintenance and
use of the existing improvements and that there is no
condition or right of re-entry or other provision for
forfeiture under which the mortgagee can be cut off,
subordinated or otherwise disturbed in the use of the insured
premises and the buildings and other improvements erected
thereon.
5. Terms, conditions, rights and obligations contained in the
unrecorded lease by and between the Trustees of the property
of Penn Central Transportation Company (Trustees) and the
Metropolitan Transportation Authority (MTA) dated 5/26/72 and
as modified by Letters dated 10/6/72 and 6/2/75 and
clarifying letter of MTA dated 6/12/78 collectively (The
"Lease") but notwithstanding same, this policy insures that
the easements and right granted, given or assigned to the
Grantee in the Deed within and with respect to the Retained
Property as set forth in the Deed to Olympia & York Plaza
Company recorded in Reel 442 P. 1353 from The Trustees of the
Property of Penn Central Transportation Company (The Deed)
are valid and effective in accordance with the Terms and
Conditions of the Deed and are recognized by and not limited
or cut-off by the MTA Lease.
6. Terms, reservations, covenants, restrictions, easements and
agreements contained in the Closing Deed being Deed made by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
solely in their capacity as Trustees of the Property of Penn
Central Transportation Company to Olympia & York Plaza
Company, dated June 16, 1978, recorded in Reel 442 P. 1353.
Policy does not insure the location of or the dimensions of
the easements insured in Schedule A. Policy insures that the
aforesaid covenants and restrictions will not be enforced so
as to prohibit the maintenance and
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use of the existing improvements and that there is no
condition or right of re-entry or other provision for
forfeiture under which the mortgagee can be cut off,
subordinated or otherwise disturbed in the use of the insured
premises and the building and other improvements erected
thereon. Policy further insures that the said Covenants and
Restrictions do not prohibit the construction of a
replacement building provided said building is constructed in
the same footprint as the existing building and the
construction of same is in accordance with the provisions of
the Closing deed.
7. Declaration of Restrictions by O & Y Equity Corp., Olympia &
York Investments Corporation and Fame Associates dated
2/11/82, recorded 3/2/82 in Reel 610 P. 490, which
Declaration limits the maximum floor area of the premises and
waives development rights. Policy insures that the
restrictions will not be enforced so as to prohibit the
maintenance and use of the existing improvements and that
there is no condition or right of re-entry or other provision
for forfeiture under which the mortgage can be cut off,
subordinated or otherwise disturbed in the use of the insured
premises and the buildings and other improvements erected
thereon.
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EXHIBIT D
FORM OF DEED
BARGAIN AND SALE DEED
WITHOUT COVENANT AGAINST GRANTOR'S ACTS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.L.C,
TO
237 PARK PARTNERS, L.P.
SECTION: 1
BLOCK: 1300
LOT: 6 AND 14
COUNTY: NEW YORK
ADDRESS: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
RECORD AND RETURN TO:
Attn:
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DEED
THIS INDENTURE, made as of the day of , 1996, between ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
ASSOCIATES, L.L.C., a New York limited liability company having an office c/o
Olympia & York Companies (U.S.A.), ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
collectively, party of the first part, and 237 PARK PARTNERS, L.P., a Delaware
limited partnership, having its principal address at , party of the second part,
WITNESSETH, that the party of the first part, in consideration of the sum of ten
dollars and other valuable consideration paid by the party of the second part,
does hereby grant and release unto the party of the second part, the heirs or
successors and assigns of the party of the second part forever,
ALL that certain plot, piece, or parcel of land, buildings and improvements
thereon erected, situate, lying and being in the Borough and County of
Manhattan, bounded and described on Schedule A annexed hereto.
TOGETHER with all right, title and interest, if any, of the party of the first
part in and to any streets and roads abutting the above described premises to
the center lines thereof;
TOGETHER with the appurtenances and all the estate and rights of the party of
the first part in and to said premises;
TO HAVE AND TO HOLD the premises herein granted unto the party of the second
part, the heirs or successors and assigns of the party of the second part
forever.
AND the party of the first part, in compliance with Section 13 of the Lien Law,
covenants that the party of the first part will receive the consideration for
this conveyance and will hold the right to receive such consideration as a trust
fund to be applied first for the purpose of paying the cost of the improvement
and will apply the same first to the payment of the cost of the improvement
before using any part of the total of the same for any other purpose.
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The word "party" shall be construed as if it read "parties" whenever the sense
of this indenture so requires.
This transfer is made pursuant to a Plan of Reorganization which was confirmed
on , 1996 by order of the United States Bankruptcy Court for the Southern
District of New York (Case No.
).
IN WITNESS WHEREOF, the party of the first part has duly executed this deed on
the day and year first above written.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.L.C.
By: O&Y NY Building Corp., managing member
By:___________________________
Name:
Title:
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Acknowledgement
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SCHEDULE A
Legal Description
ALL that certain lot, piece or parcel of land, excepting so much thereof as is
excepted and reserved herein, situate, lying and being in the Borough of
Manhattan, City, County and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the Northerly side of ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ with the Westerly side of Lexington Avenue; running
THENCE Northerly along the Westerly side of Lexington Avenue 200 feet 10 inches
to the Southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
THENCE Westerly along the Southerly side of East 46th Street 325 feet;
THENCE Southerly parallel with the Westerly side of Lexington Avenue 200 feet 10
inches to the Northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇; and
THENCE Easterly along the Northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 325 feet to the
corner aforesaid, the point or place of BEGINNING.
EXCEPTING therefrom so much of the described premises as was reserved to the
grantor (Trustees of Penn Central) by deed recorded in Reel 442 P. 1353.
TOGETHER with the easements set forth in said deed.
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EXHIBIT E
ASSIGNMENT OF LEASES
ASSIGNMENT AND ASSUMPTION OF LEASES
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.L.C., a New York limited
liability company ("Assignor"), for and in consideration of the sum of Ten
Dollars ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, does hereby grant, transfer and
assign unto 237 PARK PARTNERS, L.P., a Delaware limited partnership
("Assignee"), having an office at , all of Assignor's right, title and interest
in and to those certain leases, tenancies and other occupancy arrangements
described on Exhibit A attached hereto (hereinafter, the "Leases"), relating to
the buildings and other improvements located at or about ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, as more particularly described in Exhibit B attached hereto (the
"Property") and all right, title and interest of Assignor under the Leases,
including, without limitation, all rents, however denominated, whether past due,
currently due or to become due under the Leases, all claims, rights and suits
inuring to the benefit of lessor under the Leases and all cash or securities
including, without limitation, letters of credit, deposited under the Leases to
secure performance by the lessees of their obligations thereunder, whether such
cash or securities including, without limitation, letters of credit, are to be
held until the expiration of the terms of the Leases, or applied to one or more
of the installments of rent coming due prior to the expiration of such terms.
Assignor hereby represents and warrants to Assignee that to
Assignor's knowledge, Assignor has delivered to Assignee true, correct and
complete original counterparts of all the Leases and all modifications,
amendments and supplements thereof in its possession or in the possession of its
agents or United States affiliates; that to Assignor's knowledge the only
deposits, security deposits,
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prepayments of rents, and similar deposits regarding the Leases are set forth on
Exhibit C; that, except as set forth on Exhibit C, to Assignor's knowledge, all
of the Leases are in full force and effect; and that Assignor is the lawful
holder of the lessor's interest in the Leases.
Assignee hereby accepts the foregoing assignment and assumes
any executory obligations of Assignor in connection with the Leases described on
Exhibit A hereto relating to the period from and after the date hereof and prior
to the date hereof to the extent not released pursuant to the Assignor's Plan of
Reorganization.
Assignor further assigns to Assignee, Assignor's rights under
expired or terminated Leases, including, without limitation, the right to
receive from the tenants thereunder any underpayment of operating expense and
real estate tax payments, and Assignee hereby assumes any obligation under such
expired or terminated Leases to reimburse such tenants for any overpayment of
such amounts.
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IN WITNESS WHEREOF, Assignor and Assignee have executed and
delivered this Assignment this 10th day of October, 1996.
ASSIGNOR:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.L.C., a New York
limited liability company
By: O&Y NY Building Corp., managing member
By:_______________________________
Name:
Title:
ASSIGNEE:
237 PARK PARTNERS, L.P., a Delaware limited
partnership
By: 237 GP Corp. Inc., general partner
\
By:_______________________________
Name:
Title:
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Exhibit A
Leases
Tenant
This exhibit will list all Leases to be assumed pursuant to
the Plan and Leases entered into during the bankruptcy case in accordance with
the terms of the Cash Collateral Stipulation or otherwise consented to by the
Trustee or a Majority of the Noteholder.
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Exhibit B
Property Description
ALL that certain lot, piece or parcel of land, excepting so much thereof as is
excepted and reserved herein, situate, lying and being in the Borough of
Manhattan, City, County and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the Northerly side of ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ with the Westerly side of Lexington Avenue; running
THENCE Northerly along the Westerly side of Lexington Avenue 200 feet 10 inches
to the Southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
THENCE Westerly along the Southerly side of East 46th Street 325 feet;
THENCE Southerly parallel with the Westerly side of Lexington Avenue 200 feet 10
inches to the Northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇; and
THENCE Easterly along the Northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 325 feet to the
corner aforesaid, the point or place of BEGINNING.
EXCEPTING therefrom so much of the described premises as was reserved to the
grantor (Trustees of Penn Central) by deed recorded in Reel 442 P. 1353.
TOGETHER with the easements set forth in said deed.
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Exhibit C
Deposits
To be Inserted on Effective Date
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EXHIBIT F
ASSIGNMENT OF CONTRACTS
ASSIGNMENT AND ASSUMPTION AGREEMENT
(237 Park Contracts)
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment")
is made as of October 10, 1996, by and between ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
ASSOCIATES, L.L.C., a New York limited liability company ("Assignor"), and 237
PARK PARTNERS, L.P., a Delaware limited partnership ("Assignee").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby grants, sells,
conveys, transfers and assigns unto Assignee all of Assignor's rights, title and
interest in, to and under any and all of the following items, to the extent that
they are related to that certain real property located in New York, New York,
which real property is more particularly described on Exhibit A attached hereto
and incorporated herein by this reference (the "Real Property"):
(a) those contracts and agreements described on Exhibit B
attached hereto and incorporated herein by this reference;
(b) warranties, guarantees and indemnities (including,
without limitation, those for workmanship, materials and performance)
which exist or may hereafter exist, from, by or against any contractor,
subcontractor, manufacturer, laborer or supplier of labor, materials or
other services relating to the Real Property or any improvements
located thereon;
(c) plans, drawings, and specifications for the improvements
located on the Real Property
(d) all trademarks, tradenames (excluding the tradenames
"O&Y" or "Olympia & York"), contract rights, guarantees, licenses,
approvals, certificates, permits or warranties used or useful in
connection with the foregoing; and
(e) any tax certiorari proceedings (the "Tax Proceedings"),
if any, which may be pending with respect to the Real Property and any
improvements thereon, and all refunds of real estate taxes payable in
respect of the Real Property as a result of the Tax Proceedings now
pending or hereafter brought and relating to the period prior to the
date hereof.
Assignee hereby accepts the foregoing assignment and assumes
any executory obligations of Assignor in connection with the contracts and
agreements described in paragraph (a) above and relating to the period after the
date hereof and prior to the date hereof to the extent not released pursuant to
the Assignor's Plan of Reorganization.
Assignor hereby covenants that it will, at any time and from
time to time upon written request therefor, at Assignee's sole expense and
without the assumption of any additional liability therefor, execute and deliver
to Assignee, and its successors and assigns, any new or confirmatory instruments
and take such further acts as Assignee may reasonably request to fully evidence
the assignment contained herein and to enable Assignee, and its successors and
assigns, to fully realize and enjoy the rights and interests assigned hereby,
including, but not limited to Assignor taking any action as Assignee may
reasonably require in connection with the substitution of Assignee as the named
party in the Tax Proceedings.
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The provisions of this Assignment shall be binding upon, and
shall inure to the benefit of, the successors and assigns of Assignor and
Assignee, respectively.
Except as set forth herein, this Assignment is made without
recourse, representation or warranty.
This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which when taken together
shall constitute one and the same instrument. The signature page of any
counterpart may be detached therefrom without impairing the legal effect of the
signature(s) thereon, provided such signature page is attached to any other
counterpart identical thereto except having additional signature pages executed
by other parties to this Assignment attached thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be duly executed, as of the day and year first above written.
ASSIGNOR:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.L.C., a
New York limited liability company
By: O&Y NY Building Corp., managing member
By:_________________________
Name:
Title:
ASSIGNEE:
237 PARK PARTNERS, L.P., a
Delaware limited partnership
By: Metropolis Realty Trust, Inc., general
partner
By:_________________________
Name:
Title:
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Exhibit A
Description of Property
ALL that certain lot, piece or parcel of land, excepting so much thereof as is
excepted and reserved herein, situate, lying and being in the Borough of
Manhattan, City, County and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the Northerly side of ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ with the Westerly side of Lexington Avenue; running
THENCE Northerly along the Westerly side of Lexington Avenue 200 feet 10 inches
to the Southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
THENCE Westerly along the Southerly side of East 46th Street 325 feet;
THENCE Southerly parallel with the Westerly side of Lexington Avenue 200 feet 10
inches to the Northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇; and
THENCE Easterly along the Northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 325 feet to the
corner aforesaid, the point or place of BEGINNING.
EXCEPTING therefrom so much of the described premises as was reserved to the
grantor (Trustees of Penn Central) by deed recorded in Reel 442 P. 1353.
TOGETHER with the easements set forth in said deed.
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Exhibit B
Contracts assumed by Assignor pursuant to the Plan and by Assignee
pursuant to the Contribution Agreement, including service, brokerage and labor
agreements
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EXHIBIT G
▇▇▇▇ OF SALE
▇▇▇▇ OF SALE
(237 Park)
KNOW ALL MEN BY THESE PRESENTS, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.L.C., a
New York limited liability company, ("Seller"), for and in consideration of the
sum of Ten ($10) Dollars, the receipt of which is hereby acknowledged, paid by
237 PARK PARTNERS, L.P., a Delaware limited partnership ("Purchaser"), has
granted, sold, transferred and delivered, and does grant, sell, transfer and
deliver unto Purchaser, its successors and assigns, the following
All machinery, apparatus, equipment, fixtures, fittings,
furniture, furnishings and other personal property of every
kind and nature owned by Seller or in which Seller has or
shall have an interest now or hereafter located on that
certain real property located in New York, New York, which
real property is more particularly described on Exhibit A
attached hereto and incorporated herein by this reference, or
appurtenances thereto and usable in connection with the
present or future operation and occupancy of said building and
property, excluding trade fixtures owned by tenants,
subtenants, lessees, sublessees, concessionaires, licensees
and other occupants of said building and excluding equipment
owned by utilities or contractors and Seller's proprietary
computer software.
To have and to hold the same unto Purchaser forever.
Seller represents and warrants to Purchaser that the Personal
Property being conveyed hereby is being transferred free and clear of liens and
encumbrances, except for the lien of that certain Mortgage Spreader and
Consolidation Agreement and Trust Indenture dated as of March 20, 1984 between
Fame Associates, O&Y Equity Corp., Olympia & York Holdings Corporation (the
predecessors-in-interest to Assignor), Olympia & York 2 Broadway Land Company,
Olympia & York 2 Broadway Company and Manufacturers Hanover Trust Company, as
the same may have been amended form time to time.
Seller hereby covenants that it will, at any time and from
time to time upon written request therefor, at Purchaser's sole expense and
without the assumption of any additional liability thereby, execute and deliver
to Purchaser, its nominees, successors and/or assigns, any new or confirmatory
instruments and do and perform any other acts which Purchaser, its nominees,
successors and/or assigns, may reasonably request in order to fully assign and
transfer to and vest in Purchaser, its nominees, successors and/or assigns all
of the Personal Property intended to be transferred and assigned hereby.
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All references to "Seller" and "Purchaser" herein shall be
deemed to include their respective nominees, successors and/or assigns, where
the context permits.
Dated:October 10, 1996
SELLER: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.L.C., a
New York limited liability company
By: O&Y NY Building Corp., managing member
By:________________________
Name:
Title:
PURCHASER: 237 PARK PARTNERS, L.P., a
Delaware limited partnership
By: Metropolis Realty Trust, Inc., general
partner
By:___________________________
Name:
Title:
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Acknowledgements
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EXHIBIT A
Legal Description
ALL that certain lot, piece or parcel of land, excepting so much thereof as is
excepted and reserved herein, situate, lying and being in the Borough of
Manhattan, City, County and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the Northerly side of ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ with the Westerly side of Lexington Avenue; running
THENCE Northerly along the Westerly side of Lexington Avenue 200 feet 10 inches
to the Southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
THENCE Westerly along the Southerly side of East 46th Street 325 feet;
THENCE Southerly parallel with the Westerly side of Lexington Avenue 200 feet 10
inches to the Northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇; and
THENCE Easterly along the Northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 325 feet to the
corner aforesaid, the point or place of BEGINNING.
EXCEPTING therefrom so much of the described premises as was reserved to the
grantor (Trustees of Penn Central) by deed recorded in Reel 442 P. 1353.
TOGETHER with the easements set forth in said deed.
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EXHIBIT H
LETTERS TO TENANTS AND VENDORS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.L.C.
c/o Olympia & York Companies (U.S.A.)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
____________ ___, 1996
All Tenants of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Re: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
Please take notice that the property known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Property") has been transferred to 237 Park Partners,
L.P. and in connection therewith, the undersigned has assigned to 237 Park
Partners, L.P. all of its right, title and interest in your lease at the
Property.
All notices and future rental or other payments under your
lease (including any payments now due or overdue) shall be made payable to 237
Park Partners, L.P., and be delivered to:
237 Park Partners, L.P.
Attn:
Furthermore, please be advised that (i) any security deposit
under your lease has been transferred to 237 Park Partners, L.P. and (ii) 237
Park Partners, L.P. needs to be added as an additional insured to the insurance
policies which you are required to carry under your lease. Certificates of
insurance
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naming 237 Park Partners, L.P. as additional insured should be delivered to
landlord immediately.
Very truly yours,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.L.C.
By: O&Y NY Building Corp., managing member
By:___________________________
Name:
Title:
ACKNOWLEDGED:
237 PARK PARTNERS, L.P.
By: Metropolis Realty Trust, Inc.,
general partner
By:______________________
Name:
Title:
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EXHIBIT I
FIRPTA CERTIFICATE
FIRPTA Affidavit
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BEFORE ME, a Notary Public in and for the State and County
shown above, personally appeared , who, by me being first duly
sworn, deposes and says as follows:
I understand that Section 1445 of the Internal Revenue Code
provides that a transferee of a U.S. real property interest must withhold tax if
the transferor is a foreign person. To inform 237 Park Partners, L.P., a
Delaware limited partnership ("Transferee"), that withholding of tax is not
required upon disposition of a U.S. real property interest in ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Associates, L.L.C. ("Transferor"), the undersigned hereby swears, affirms and
certifies the following:
1. That I am of Transferor;
2. Transferor is not a foreign person, foreign corporation,
foreign partnership, foreign trust or foreign estate (as such terms are defined
in the Internal Revenue Code Income Tax Regulations);
3. Transferor's U.S. employer identification number is ;
4. Transferor's address is c/o Olympia & York Companies
(U.S.A.), ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
I understand that this certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein may be punished by fine, imprisonment or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign these documents on
behalf of Transferor.
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IN WITNESS WHEREOF, Transferor has duly executed this Affidavit on the
date written below.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.L.C., a
New York limited liability company
By: O&Y NY Building Corp., managing member
By:__________________________
Name:
Title:
Sworn to before me this
day of , 1996
-------------------------------
Notary Public
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EXHIBIT J
SCHEDULE OF LEASES/RENT ROLL
To reflect Leases to be assumed by the 237 Debtor pursuant to
the Plan or entered into in accordance with the Cash
Collateral Stipulation. Rent roll will be prepared by LLC as
of a date within ten (10) days of the Effective Date.
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EXHIBIT K
CONTRACTS
To reflect Contracts to be assumed by the 237 Debtor pursuant
to the Plan or entered into in the ordinary course of
business, and not in violation of the Cash Collateral
Stipulation.
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EXHIBIT L
TAX CERTIORARI PROCEEDINGS
[To be provided by LLC as of the Effective Date]
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EXHIBIT M
BROKERAGE COMMISSIONS
NONE
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EXHIBIT N
PENDING LITIGATION
[To be provided by LLC as of the Effective Date]
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EXHIBIT O
EMPLOYEES/LABOR AGREEMENTS
Terms of Employment of Non-Union Employees
1. Vacation. An employee is entitled to ten days vacation each year,
fifteen days after five years and twenty days after twenty years.
2. Holidays. The office is closed for nine major holidays and each
employee is also entitled to three floating holidays.
3. Personal and Sick Days. Each employee is entitled to three personal
days and ten paid sick days.
4. Termination/Severance Pay. In case of a termination for reasons other
than malfeasance, an employee is to receive termination pay equal to
one week's salary per full six months of employment up to five years.
Above five years, severance pay is based on a scheduled number of weeks
which can be increased at the discretion of the employer.
The current accrued vacation and severance pay for non-union employees
of 237 Park and 1290 Avenue of the Americas is set forth on the
attached schedule.
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EXHIBIT P
ENVIRONMENTAL MATTERS
NONE
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TABLE OF CONTENTS
Page
ARTICLE I CONTRIBUTION OF THE PROPERTY............................................. 2
Section 1.1 Transfer of the Property............................................. 2
Section 1.2 Issuance of Partnership Interest..................................... 3
ARTICLE II THE CLOSING.............................................................. 3
Section 2.1 Closing.............................................................. 3
Section 2.2 Conditions to the Partnership's Obligations.......................... 3
Section 2.3 Grantor's Closing Deliveries......................................... 4
Section 2.4 The Limited Partner's Closing Deliveries............................. 6
Section 2.5 Further Assurances................................................... 6
Section 2.6 Closing Expenses..................................................... 7
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF GRANTOR..................... 7
Section 3.1 Due Organization .................................................... 7
Section 3.2 Performance and Enforceability....................................... 7
Section 3.3 Consents and Filings................................................. 8
Section 3.4 Grantor's Ownership of the Property.................................. 8
Section 3.5 Rent Roll and Leases................................................. 8
Section 3.6 Contracts............................................................ 8
Section 3.7 Real Estate Taxes.................................................... 8
Section 3.8 Brokerage Commissions................................................ 8
Section 3.9 Condemnation......................................................... 8
Section 3.10 Litigation........................................................... 9
Section 3.11 Zoning............................................................... 9
Section 3.12 Employees............................................................ 9
Section 3.13 Environmental Matters................................................ 9
Section 3.14 Personal Property.................................................... 10
Section 3.15...................................................................... 10
ARTICLE IV MISCELLANEOUS............................................................ 10
Section 4.1 Notices.............................................................. 10
Section 4.2 Survival; As Is...................................................... 11
Section 4.3 Assignment........................................................... 11
Section 4.4 Captions; Counterparts............................................... 11
Section 4.5 Enforceability; Severability......................................... 11
Section 4.6 Entire Agreement..................................................... 12
Section 4.7 Applicable Law....................................................... 12
Section 4.8 Cooperation.......................................................... 12
EXHIBITS
EXHIBIT A LEGAL DESCRIPTION OF THE PREMISES............................... 1
EXHIBIT B LIST OF PERMITS................................................. 1
EXHIBIT C PERMITTED ENCUMBRANCES.......................................... 1
EXHIBIT D FORM OF DEED.................................................... 1
EXHIBIT E ASSIGNMENT OF LEASES............................................ 1
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EXHIBIT F ASSIGNMENT OF CONTRACTS......................................... 1
EXHIBIT G ▇▇▇▇ OF SALE.................................................... 1
EXHIBIT H LETTERS TO TENANTS AND VENDORS.................................. 1
EXHIBIT I FIRPTA CERTIFICATE
EXHIBIT J SCHEDULE OF LEASES/RENT ROLL.................................... 1
EXHIBIT K CONTRACTS....................................................... 1
EXHIBIT L TAX CERTIORARI PROCEEDINGS...................................... 1
EXHIBIT M BROKERAGE COMMISSIONS........................................... 1
EXHIBIT N PENDING LITIGATION.............................................. 1
EXHIBIT O EMPLOYEES/LABOR AGREEMENTS...................................... 1
EXHIBIT P ENVIRONMENTAL MATTERS........................................... 1
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