Exhibit 10.12
CONTRACT OF SALE
BETWEEN
▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P.
(In Formation)
AND
470 PARK SOUTH ASSOCIATES, L.P.
Dated as of May 20, 1997
TABLE OF CONTENTS
ARTICLE I. CONTRIBUTION TERMS AND CLOSING PROCEDURES
1.1 Acquisition of Interests...................................... 2
1.2 Term of Agreement............................................. 2
1.3 Consideration................................................. 2
1.5 Documents to be Delivered at Closing.......................... 4
1.6 Cessation of IPO.............................................. 5
1.7 Closing Costs................................................. 5
1.8 Default....................................................... 6
1.9 Further Assurances............................................ 6
ARTICLE II. REPRESENTATIONS, WARRANTIES
AND COVENANTS OF SELLER
2.1 Title to Interests............................................ 7
2.2 Authority..................................................... 7
2.3 Litigation.................................................... 8
2.4 No Other Agreements to Sell................................... 8
2.5 No Brokers.................................................... 8
2.6 Investment Representations and Warranties..................... 8
2.7 FIRPTA Representation......................................... 11
2.8 Covenant to Remedy Breaches................................... 11
ARTICLE III. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF OPERATING PARTNERSHIP
3.1 Authority..................................................... 11
3.2 No Brokers.................................................... 12
ARTICLE IV. CLOSING ADJUSTMENTS
4.1 Prorations.................................................... 12
4.2 Seller's Retained Items....................................... 14
4.3 Accounts Receivable........................................... 14
4.4 Security Deposits............................................. 14
4.5 Timing of Calculations; Cooperation........................... 14
4.6 Allocation of Adjustments..................................... 15
ARTICLE V. POWER OF ATTORNEY
5.1 Grant of Power of Attorney.................................... 15
5.2 Limitation on Liability....................................... 17
5.3 Ratification; Third Party Reliance............................ 17
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ARTICLE VI. MISCELLANEOUS
6.1 Amendment..................................................... 17
6.2 Entire Agreement; Counterparts;
Applicable Law................................................ 17
6.3 Assignability................................................. 18
6.4 Titles........................................................ 18
6.5 Third Party Beneficiary....................................... 18
6.6 Severability.................................................. 18
6.7 Equitable Remedies............................................ 18
6.8 Attorneys' Fees............................................... 19
6.9 Notices....................................................... 19
6.10 Intentionally Omitted......................................... 20
6.11 Confidentiality............................................... 20
6.12 Computation of Time........................................... 20
6.13 Survival...................................................... 20
6.14 Time of the Essence........................................... 20
EXHIBIT A: Description of Land
EXHIBIT B: Schedule of Leases
EXHIBIT C: Consideration
EXHIBIT D: Permitted Encumbrances
EXHIBIT E: Operating Partnership Agreement
EXHIBIT F: Investor Questionnaire
EXHIBIT G: Registration Rights Agreement
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CONTRACT OF SALE
This Contract of Sale (the "CONTRACT") is executed as of the 20th day of
May, 1997 by ▇▇ ▇▇▇▇▇ Operating Partnership, L.P. (the "OPERATING PARTNERSHIP"),
a Delaware limited partnership in formation, and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Associates,
L.P., a Delaware limited partnership (the "SELLER").
WHEREAS, in connection with the consolidation of its commercial real estate
business, ▇.▇. ▇▇▇▇▇ Realty, Inc. intends to form a Maryland corporation (the
"REIT") that will be the sole general partner and a limited partner of the
Operating Partnership and to effect an initial public offering (the "IPO") of
the REIT's shares of common stock ("COMMON STOCK");
WHEREAS, it is intended that, upon consummation of the IPO, the Operating
Partnership will acquire interests in certain office properties including,
without limitation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, as well as
interests in the property construction, management and leasing businesses
currently conducted by Emerald City Construction Corp., a New York corporation,
▇▇ ▇▇▇▇▇ Management Corp., a New York corporation and ▇.▇. ▇▇▇▇▇ Realty, Inc., a
New York corporation;
WHEREAS, it is further understood that the Operating Partnership may
acquire interests in additional office properties located in New York, New York;
WHEREAS, the Operating Partnership desires to acquire from the Seller and
the Seller desires to convey to the Operating Partnership under the terms and
conditions set forth herein, (a) the parcel of land more particularly described
on EXHIBIT A (the "LAND"); (b) all buildings and improvements situated on the
Land (collectively, the "BUILDING"); (c) all right, title and interest of
Seller, if any, in and to any strips and gores of land adjoining the Land and
the land lying in the bed of any street or highway in front of or adjoining the
Land to the center line thereof, to any unpaid insurance proceeds and to any
unpaid award for any taking by condemnation or any damage to the Land by reason
of a change of grade of any street or highway; (d) the appurtenances and all the
estate and rights of Seller in and to the Land and Building; and (e) all right,
title and interest of Seller, if any, in and to the fixtures, equipment and
other personal property attached or appurtenant to, or used in connection with,
the Building (the "PERSONAL PROPERTY"); (f) all leases, licenses and other
agreements covering space in the Building and further described on EXHIBIT B
(collectively, the "LEASES") and the interest of the landlord under the Leases,
together with the security deposit made to the landlord by the tenant or other
occupants thereunder; and (g) all
other assignable service, maintenance and other agreements and all other
assignable permits necessary for the operation of the Building (collectively,
the "PREMISES"). The Premises are located at or known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇;
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Operating Partnership and the
Seller agree as follows:
ARTICLE I. CONTRIBUTION TERMS AND CLOSING PROCEDURES
1.1 ACQUISITION OF INTERESTS. At the Final Closing (as defined below),
Seller shall, subject to Section 1.4 hereof, transfer, assign, and convey to the
Operating Partnership and the Operating Partnership shall acquire and accept
from Seller, all right, title and interest of Seller in the Premises, free and
clear of all Encumbrances (as defined below) except Permitted Encumbrances (as
defined below), and the Operating Partnership shall deliver to Seller the
Consideration (as defined below), both in accordance with this Contract.
1.2 TERM OF AGREEMENT. If the IPO Closing (as defined below) does not
occur by March 31, 1998 (the "TERMINATION DATE"), this Contract shall be deemed
terminated and shall be of no further force and effect and neither the Operating
Partnership nor the Seller shall have any further obligations hereunder except
as specifically set forth herein.
1.3 CONSIDERATION. The full consideration for the Premises (the
"CONSIDERATION") shall be payable as set forth in EXHIBIT C, subject to the
terms and provisions of Article IV hereof providing for adjustments to the
Consideration based on closing adjustments. As used herein, the term "UNITS"
means units of limited partnership interest in the Operating Partnership.
1.4 CLOSING; CONDITION TO OBLIGATIONS. In connection with its acquisition
of the Premises, the Operating Partnership will notify the Seller of a closing
date, which date will be no earlier than five (5) business days after such
notification and no later than March 10, 1998 (fifteen (15) business days prior
to the Termination Date), for the initial closing (the "INITIAL CLOSING") of the
acquisition contemplated by this Contract. At or before the Initial Closing,
which shall be held at the offices of ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other place as is determined by the Operating
Partnership in its sole discretion at a time specified by the Operating
Partnership in its sole discretion, the Operating Partnership and the Seller
will execute all closing documents (the "CLOSING DOCUMENTS") required by the
Operating Partnership in accordance with Section 1.5 hereof and deposit the same
in
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escrow with ▇▇▇▇▇ & Wood LLP, New York, New York, as escrow agent of the
Operating Partnership (the "CLOSING AGENT").
The transactions contemplated by this Contract and by the Closing Documents
executed and deposited in connection with such transactions will be consummated
at the Final Closing (as defined below) only if the closing of the IPO (the "IPO
CLOSING") is consummated by the earlier of (a) fifteen (15) business days after
the date of the Initial Closing and (b) the Termination Date. If the IPO
Closing occurs by such date:
(a) The Operating Partnership shall, contemporaneously with the
IPO Closing, cause to be delivered to the Closing Agent with
respect to the Seller (i) an assumption (the "ASSUMPTION
AGREEMENT") of the Existing Mortgages (as defined in EXHIBIT
C hereof), and (ii) a certificate of the General Partner of
the Operating Partnership certifying that the Seller has
been or will be, effective upon the Final Closing (as
hereinafter defined), admitted as a limited partner of the
Operating Partnership and that the Operating Partnership's
books and records indicate or will indicate that the Seller
is the holder of the number of Units which are called for
pursuant to the Consideration as adjusted pursuant to
Article IV hereof;
(b) upon receipt of the Consideration set forth in clause (a)
above, the Closing Agent will release the Closing Documents
to the Operating Partnership and deliver to the Seller the
Assumption Agreement and, if requested by the Seller, a copy
of such General Partner's certificate; and
(c) the transactions described or otherwise contemplated herein
or in the Closing Documents will thereupon be deemed to have
been consummated simultaneously with the IPO Closing (such
consummation, the "FINAL CLOSING").
Notwithstanding the above, the Operating Partnership may, in its sole
discretion, elect not to complete the acquisition of the Premises only in the
event that the Seller specifies, in the documents to be delivered pursuant to
Section 1.5(a)(ii) hereof, a breach of or other exception with respect to
Article 2 hereof or has otherwise materially breached this Contract, in which
case the Operating Partnership shall, in lieu of the delivery pursuant to clause
(a) above, notify the Closing Agent of such election
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and direct the Closing Agent to return the Closing Documents and Ancillary
Agreements (as defined below) to the Seller.
The risk of loss to the Premises prior to the Final Closing shall be borne
by the Seller. If, prior to the Final Closing, the Premises shall be destroyed
or damaged by fire or other casualty, then this Contract may, at the option of
the Operating Partnership, be terminated. If, after the occurrence of any such
casualty, this Contract is not so terminated, the Operating Partnership may
elect to (a) purchase the Premises and (b) direct the Seller to pay or cause to
be paid to the Operating Partnership any sums collected under any policies of
insurance because of damage due to such casualty and otherwise assign to the
Operating Partnership all rights to collect such sums as may then be
uncollected; provided, however, that the Seller shall not adjust or settle any
insurance claim without the Operating Partnership's prior consent, not to be
unreasonably withheld or delayed. Under such circumstances, the Consideration
payable in Units upon such purchase shall be reduced by the amount of any
deductibles under the applicable insurance policies.
If the IPO Closing does not occur by the earlier of (a) fifteen (15)
business days after the date of the Initial Closing and (b) the Termination
Date, then, except as set forth in Section 1.8 hereof, neither party shall have
any obligations under the Closing Documents or under any agreements or
instruments executed in connection with the transactions contemplated hereunder
or thereunder (such other agreements or instruments, collectively, "ANCILLARY
AGREEMENTS"), this Contract, the Closing Documents and the Ancillary Agreements
shall be deemed null and void AB INITIO and the Closing Agent will be, and is
hereby, directed to destroy the Closing Documents and any Ancillary Agreement it
holds and return to the Operating Partnership the Consideration, if any,
delivered by the Operating Partnership to the Closing Agent.
1.5 DOCUMENTS TO BE DELIVERED AT CLOSING. (a) At the Initial Closing,
the Seller shall, directly or through the attorney-in-fact appointed pursuant to
Article V hereof, execute, acknowledge where deemed desirable or necessary by
the Operating Partnership, and deliver to the Closing Agent, in addition to any
other documents mentioned elsewhere herein, the following:
(i) statutory form of bargain and sale deed with covenants
against grantor's acts (the "ASSIGNMENT") which shall be in form and substance
satisfactory to the Operating Partnership which shall convey good and marketable
title in and to the Premises free and clear of all Encumbrances, except, where
applicable, for the Permitted Encumbrances;
(ii) a reaffirmation of warranties which shall either (x)
reaffirm the accuracy of all representations and
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warranties and the satisfaction of all covenants made by the Seller in Article
II hereof or (y) if such reaffirmation cannot be made, identify those
representations, warranties and covenants of Article II hereof (other than
Section 2.5 hereof) with respect to which circumstances have changed, represent
that the Seller has used all reasonable efforts within its control to prevent
and remedy such breach, and reaffirm the accuracy of all other representations
and warranties and the satisfaction of all other covenants made by the Seller in
Article II hereof;
(iii)any other documents reasonably requested by the Operating
Partnership or reasonably necessary or desirable to assign, transfer and convey
the Premises and effectuate the transactions contemplated hereby, including,
without limitation, deeds, assignments of ground leases and the Leases (as
applicable), ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ transfer tax and gains tax returns
and any other filings with any applicable governmental jurisdiction in which the
Operating Partnership is required to file its partnership documentation or the
recording of the Assignment is required; and
(iv) an agreement executed by the holder of the ▇▇▇▇ Mortgage (as
defined in EXHIBIT C hereof), in form and substance reasonably acceptable to the
Operating Partnership, in which such holder agrees to satisfy all of the
obligations secured by the ▇▇▇▇ Mortgage in consideration of a payment not to
exceed $12,000,000.00.
(b) At the Initial Closing, the Operating Partnership shall execute and
deliver to the Closing Agent an agreement executed by the Operating Partnership,
which may be relied upon by the holder of the ▇▇▇▇ Mortgage, to satisfy, within
one business day of the IPO Closing, the ▇▇▇▇ Mortgage for an amount not to
exceed $12,000,000.00.
1.6 CESSATION OF IPO. If at any time the Operating Partnership or the
underwriter or underwriters determine in good faith to abandon the formation of
the REIT or the IPO (the date of such determination being referred to as the
"CESSATION DATE"), the Operating Partnership will so advise the Seller in
writing and thereupon each party hereto will be relieved of all obligations
under this Contract, all Ancillary Agreements, and all Closing Documents (except
for obligations arising under Sections 1.7, 2.5 and 3.2 hereof).
1.7 CLOSING COSTS. The Operating Partnership agrees to pay all of the
closing costs, other than Seller's legal and advisory fees, arising from the
transfer of the Premises pursuant to the provisions of this Contract other than
any applicable real property transfer taxes which shall be paid by Seller at
Final Closing.
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1.8 DEFAULT. (a) If, after notifying the Seller of a date for the Initial
Closing, the Operating Partnership fails to close (including a failure due to
the IPO Closing not occurring), then the Operating Partnership will pay to the
Seller the sum of $100.00 as liquidated and agreed-upon damages. It would be
difficult, if not impossible, to ascertain the actual measure of the Seller's
damages in the event of the Operating Partnership's default and the parties
agree that $100.00 is a fair reflection of the Seller's damages in the event of
the Operating Partnership's default.
(b) If the Seller defaults with respect to its obligations
under this Contract, the Operating Partnership shall be entitled to exercise
against the Seller any and all remedies provided at law or in equity, including
but not limited to, the right to specific performance.
1.9 FURTHER ASSURANCES. The Seller will, from time to time, execute and
deliver to the Operating Partnership all such other and further instruments and
documents and take or cause to be taken all such other and further action as the
Operating Partnership may reasonably request in order to effect the transactions
contemplated by this Contract, including instruments or documents deemed
necessary or desirable by the Operating Partnership to effect and evidence the
conveyance of the Premises in accordance with the terms of this Contract. The
provisions of this Section 1.9 shall survive the Final Closing.
ARTICLE II. REPRESENTATIONS, WARRANTIES
AND COVENANTS OF SELLER
As a material inducement to the Operating Partnership to enter into this
Contract and to consummate the transactions contemplated hereby, the Seller
hereby makes to the Operating Partnership each of the representations and
warranties set forth in this Article III, which representations and warranties
(unless otherwise noted) are true as of the date hereof. As a condition to the
Operating Partnership's obligation to complete the acquisition of the Premises,
such representations and warranties must continue to be true as of the date of
the Initial Closing and as of the date of the Final Closing; provided, however,
in the event that such representation and warranties were true when initially
made but are not true as of the date of the Initial Closing and as of the date
of the Final Closing, and Seller has complied with the provisions of Section
1.5(b)(ii) hereof, no default shall exist hereunder, but the Operating
Partnership may, in its sole and absolute discretion, terminate this Contract in
which event each party hereto will be relieved of all obligations under this
Contract, all Ancillary Agreements and all Closing Documents (except obligations
arising under Sections 1.7, 2.5 or 3.2 hereof).
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2.1 TITLE TO INTERESTS. The Seller owns the Premises beneficially and of
record, free and clear of any claim, lien, pledge, voting agreement, option,
charge, security interest, mortgage, deed of trust, encumbrance, rights of
assignment, purchase rights or other rights of any nature whatsoever
(collectively, "ENCUMBRANCES"), except as set forth on EXHIBIT D attached hereto
(any such encumbrance, a "PERMITTED ENCUMBRANCE"), and has full power and
authority to convey free and clear of any Encumbrances (except, where
applicable, the Permitted Encumbrances), the Premises and, upon delivery of any
Assignment by the Seller conveying title to the Premises and delivery of the
Consideration for such conveyance as herein provided, the Operating Partnership
will acquire good, marketable and valid fee title thereto, free and clear of any
Encumbrance except Encumbrances created in favor of the Operating Partnership by
the transactions contemplated hereby and, where applicable, the Permitted
Encumbrances. Seller will not consent to join in or in any way effect the
transfer of the Premises prior to the Final Closing. At the Final Closing, if
so requested, the Seller will execute all documents necessary to enable a title
insurance company (acceptable to the Operating Partnership, in its sole
discretion) to issue to the Operating Partnership an ALTA Form B (1987 or later)
Owner's Policy and such endorsements as the Operating Partnership may reasonably
request, insuring fee simple title to all real property and improvements
comprising all or any part of the Premises to the Operating Partnership;
provided that the Seller's cost of complying with this requirement shall be
limited to ten percent of the gross Consideration to be received by the Seller,
which amount shall be deducted from the Consideration at the Final Closing. The
Seller covenants and warrants that no Encumbrance on the Premises (except, where
applicable, the Permitted Encumbrances) will be in existence as of the date of
the Final Closing.
2.2 AUTHORITY. The Seller has full right, authority, power and capacity:
(a) to enter into this Contract and each agreement, document and instrument to
be executed and delivered by or on behalf of the Seller pursuant to this
Contract; (b) to carry out the transactions contemplated hereby and thereby; and
(c) to transfer, convey, assign and deliver all of the Seller's, right, title
and interest in the Premises to the Operating Partnership upon delivery to the
Seller of the Consideration therefor in accordance with this Contract. This
Contract and each agreement, document and instrument executed and delivered by
or on behalf of the Seller pursuant to this Contract constitutes, or when
executed and delivered will constitute, the legal, valid and binding obligation
of the Seller, each enforceable in accordance with their respective terms.
Except for any breaches, violations or defaults which will be waived or cured
prior to the Initial Closing and all loans, indentures, creditor agreements or
other agreements which will be discharged or repaid prior to or
contemporaneously with the IPO Closing, the execution, delivery
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and performance of this Contract and each such agreement, document and
instrument by or on behalf of the Seller: (a) does not and will not violate the
Seller's partnership agreement, operating agreement, declaration of trust,
charter or bylaws, as applicable, or other organizational documentation; (b)
does not and will not violate any foreign, federal, state, local or other laws
applicable to or binding on the Seller or the Premises or require the Seller to
obtain any approval, consent or waiver of, or make any filing with, any person
or authority (governmental or otherwise) that has not been obtained or made or
which does not remain in effect; and (c) does not and will not result in a
breach of, constitute a default under, accelerate any obligation under or give
rise to a right of termination of, any indenture or loan or credit agreement or
any other agreement, contract, instrument, mortgage, lien, obligation, lease,
permit, authorization, order, writ, judgment, injunction, decree, determination
or arbitration award to which the Seller is a party or bound or by which the
property of the Seller is bound or affected, or result in the creation of any
Encumbrance on the Premises.
2.3 LITIGATION. There is no litigation or proceeding, either judicial or
administrative, pending or overtly threatened, affecting all or any portion of
the Premises or the Seller's ability to consummate the transactions contemplated
hereby. The Seller knows of no outstanding order, writ, injunction or decree of
any court, government, governmental entity or authority or arbitration against
or affecting all or any portion of the Premises or the Seller, which in any such
case would impair the Seller's ability to enter into and perform all of its
obligations under this Contract.
2.4 NO OTHER AGREEMENTS TO SELL. The Seller has not made any agreement
with, and will not enter into any agreement with, and has no obligation
(absolute or contingent) to, any person or firm other than the Operating
Partnership to sell, transfer or in any way encumber (except for Permitted
Encumbrances) the Premises or to sell the Premises.
2.5 NO BROKERS. The Seller has not entered into, and covenants that it
will not enter into, any agreement, arrangement or understanding with any person
or firm which will result in the obligation of the Operating Partnership to pay
any finder's fee, brokerage commission or similar payment in connection with the
transactions contemplated hereby and the Seller shall indemnify and hold
harmless the Operating Partnership for all costs and expenses incurred by the
Operating Partnership as a result of a breach of this representation. The
provisions of this Section 2.5 shall survive termination of this Contract.
2.6 INVESTMENT REPRESENTATIONS AND WARRANTIES. (a) Upon the issuance of
Units to the Seller, the Seller shall become
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subject to, and shall be bound by, the terms and provisions of the agreement of
limited partnership of the Operating Partnership (in substantially the form
attached hereto as EXHIBIT E) (the "PARTNERSHIP AGREEMENT"), including the terms
of the power of attorney contained in Section 15.11 thereof, as the Partnership
Agreement may be amended from time in accordance with its terms.
(b) The Seller understands the risks of, and other considerations
relating to, the purchase of the Units. The Seller, by reason of its business
and financial experience, together with the business and financial experience of
those persons, if any, retained by it to represent or advise it with respect to
its investment in the Units, has such knowledge, sophistication and experience
in financial and business matters and in making investment decisions of this
type that it is capable of evaluating the merits and risks of an investment in
the Operating Partnership and of making an informed investment decision, (ii) is
capable of protecting its own interest or has engaged representatives or
advisors to assist it in protecting its interests and (iii) is capable of
bearing the economic risk of such investment. If the Seller retained a person
to represent or advise it with respect to the investment in Units that may be
made hereby then, at the Seller's request, the Seller shall, prior to or at the
Initial Closing, (i) acknowledge in writing such representation and (ii) cause
such representative or advisor to deliver a certificate to the Operating
Partnership containing such representations as are reasonably requested by the
Operating Partnership.
(c) The Seller understands that an investment in the Operating
Partnership involves substantial risks. The Seller has been given the
opportunity to make a thorough investigation of the proposed activities of the
Operating Partnership and has been furnished with materials relating to the
Operating Partnership and its proposed activities. The Seller has been afforded
the opportunity to obtain any additional information deemed necessary by the
Seller to verify the accuracy of any representations made or information
conveyed to the Seller. The Seller confirms that all documents, records, and
books pertaining to its investment in the Operating Partnership and requested by
the Seller have been made available or delivered to the Seller. The Seller has
had an opportunity to ask questions of and receive answers from the Operating
Partnership, or from a person or persons acting on the Operating Partnership's
behalf, concerning the terms and conditions of this investment. The Seller has
relied and is making its investment decision upon written information provided
to the Seller by or on behalf of the Operating Partnership.
(d) The Units to be issued to the Seller will be acquired by the
Seller for its own account for investment only and not with a view to, or with
any intention of, a distribution or resale thereof, in whole or in part, or the
grant of any
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participation therein, without prejudice, however, to the Seller's right
(subject to the terms of the Units) at all times to sell or otherwise dispose of
all or any part of its Units under an exemption from such registration available
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), and
applicable state securities laws, and subject, nevertheless, to the disposition
of its assets being at all times within its control. The Seller was not formed
for the specific purpose of acquiring an interest in the Operating Partnership.
(e) The Seller acknowledges that (i) the Units to be issued to the
Seller have not been registered under the Securities Act or state securities
laws by reason of a specific exemption or exemptions from registration under the
Securities Act and applicable state securities laws and, if such Units are
represented by certificates, such certificates will bear a legend to such
effect, (ii) the REIT's and the Operating Partnership's reliance on such
exemptions is predicated in part on the accuracy and completeness of the
representations and warranties of the Seller contained herein, (iii) such Units,
therefore, cannot be resold unless registered under the Securities Act and
applicable state securities laws, or unless an exemption from registration is
available, (iv) there is no public market for such Units, and (v) the Operating
Partnership has no obligation or intention to register such Units for resale
under the Securities Act or any state securities laws or to take any action that
would make available any exemption from the registration requirements of such
laws. The Seller hereby acknowledges that because of the restrictions on
transfer or assignment of such Units to be issued hereunder which will be set
forth in the Partnership Agreement and/or in a Registration Rights Agreement (as
defined below), the Seller may have to bear the economic risk of the investment
commitment evidenced by this Contract and any Units acquired hereby for an
indefinite period of time, although (i) under the terms of the Partnership
Agreement, as it will be in effect at the time of the IPO, Units will be
redeemable at the request of the holder thereof at any time after the second
anniversary of their issuance for cash or (at the option of the Operating
Partnership) for Common Stock of the REIT and (ii) the holder of any such Common
Stock issued upon a presentation of Units for redemption will be afforded
certain rights to have such Common Stock registered for resale under the
Securities Act or applicable state securities laws under the Registration Rights
Agreement as described more fully below.
(f) The information set forth in the investor questionnaire a form of
which is attached hereto as EXHIBIT F (the "INVESTOR QUESTIONNAIRE") which has
been completed and executed by the Seller and delivered to the Operating
Partnership on the date hereof is true, correct and complete.
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2.7 FIRPTA REPRESENTATION. The Seller is not a "foreign person" within
the meaning of Section 1145 of the Internal Revenue Code of 1986, as amended.
2.8 COVENANT TO REMEDY BREACHES. The Seller covenants to use all
reasonable efforts within its control (a) to prevent the breach of any
representation or warranty of the Seller hereunder, (b) to satisfy all covenants
of the Seller hereunder and (c) to promptly cure any breach of a representation,
warranty or covenant of the Seller hereunder upon its learning of same.
2.9 OPERATION OF PREMISES. The Seller shall operate the Premises from the
date hereof through and including the Final Closing in a manner consistent with
that in which the Seller operates the Premises as of the date hereof and shall
maintain or cause to be maintained all existing insurance carried by the Seller
relating to the Premises.
ARTICLE III. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF OPERATING PARTNERSHIP
As a material inducement to the Seller to enter into this Contract and to
consummate the transactions contemplated hereby, the Operating Partnership
hereby makes to the Seller each of the representations and warranties set forth
in this Article III, which representations and warranties shall be true as of
the date hereof, as of the date of the Initial Closing and as of the date of
consummation of the Final Closing.
3.1 AUTHORITY. The Operating Partnership has full right, authority, power
and capacity: (a) to enter into this Contract and each agreement, document and
instrument to be executed and delivered by or on behalf of it pursuant to this
Contract; (b) to carry out the transactions contemplated hereby and thereby; and
(c) to issue Units to the Seller to the extent called for in accordance with the
terms of this Contract. This Contract and each agreement, document and
instrument executed and delivered by the Operating Partnership pursuant to this
Contract constitutes, or when executed and delivered will constitute, the legal,
valid and binding obligation of the Operating Partnership, each enforceable in
accordance with their respective terms. The execution, delivery and performance
of this Contract and each such agreement, document and instrument by the
Operating Partnership: (a) does not and will not violate the Partnership
Agreement; (b) does not and will not violate any foreign, federal, state and
local or other laws applicable to Operating Partnership or require the Operating
Partnership to obtain any approval, consent or waiver of, or make any filing
with, any person or authority (governmental or otherwise) that has not been
obtained or made; and (c) does not and will not result in a breach of,
constitute a default under, accelerate any obligation
11
under or give rise to a right of termination of, any indenture or loan or credit
agreement or any other agreement, contract, instrument, mortgage, lien, lease,
permit, authorization, order, writ, judgment, injunction, decree, determination
or arbitration award to which the Operating Partnership is a party or by which
the property of the Operating Partnership is bound or affected.
3.2 NO BROKERS. The Operating Partnership represents that it has not
entered into, and covenants that will not enter into, any agreement, arrangement
or understanding with any person or firm which will result in the obligation of
the Seller to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby and the Operating
Partnership shall indemnify and hold harmless the Seller for all costs and
expenses incurred by the Seller as a result of a breach of this representation.
The provisions of this Section 3.2 shall survive termination of this Contract.
ARTICLE IV. CLOSING ADJUSTMENTS
4.1 PRORATIONS. The Operating Partnership and the Seller shall make the
prorations set forth below, and make payment with respect to such prorations as
appropriate.
(a) TAXES. Real property taxes and general and special assessments,
water and sewer rents, tap charges, and business improvements district charges
upon the Premises shall be adjusted and prorated as of the date of the Final
Closing on the basis of the fiscal year for such taxes and assessments (the "TAX
YEAR"). If the Final Closing shall occur before the real property tax rate for
the Tax Year is fixed, the apportionment of taxes shall be made on the basis of
the taxes assessed for the preceding Tax Year. After the real property taxes
are finally fixed for the Tax Year in which the Final Closing occurs, the
Operating Partnership and the Seller shall make a recalculation of the
apportionment of such taxes, and the Operating Partnership or the Seller, as the
case may be, shall make an appropriate payment to the other based on such
recalculation. To the extent that either the Seller or the Operating
Partnership shall obtain any real estate tax abatement, reduction, refund or
incentive with respect to the Premises, the amount of the net proceeds of such
tax abatement, reduction, refund or incentive shall be prorated through the date
of the Final Closing if, as, and when such proceeds are paid by the applicable
governmental taxing authority (it being understood that to the extent any tenant
demising space in the Premises owned by such Seller shall be entitled to any
portion of such tax abatement, that such portion shall be turned over to the
Operating Partnership to remit to such tenant and shall be deducted from any tax
abatement, reduction, refund or incentive proceeds in connection with
calculating the net proceeds thereof).
12
(b) RENTS. Rents, additional rents, including electricity charges,
operating expense recoveries, and tax reimbursements under the Leases
(collectively, "RENTS") shall be adjusted and prorated as of the date of the
Final Closing. Rents collected after the date of the Final Closing from tenants
whose rental was delinquent on the date of the Final Closing shall be deemed to
apply first to current rents due at the time of payment and second to past due
rents accruing after the Final Closing and last to the rents which were past due
on the date of the Final Closing. Unpaid and past due rents to which the Seller
is entitled shall be promptly paid over to the Seller as and when collected by
the Operating Partnership after the date of the Final Closing, less any
reasonable collection costs actually incurred by the Operating Partnership.
(c) PREPAYMENTS. Any prepayment made by or on behalf of the Seller
under any service, maintenance, management, consulting, or similar contracts
shall be adjusted and prorated as of the date of the Final Closing.
(d) EXPENSES. Charges and assessments for sewer and water and other
utilities, including charges for consumption of electricity, steam and gas
(unless the Operating Partnership elects to have final meter readings made as of
the Final Closing in which event the adjustment shall be made based on such
meter readings); current operating expenses, including, without limitation,
obligations under any service, maintenance, management, consulting, or similar
contracts; payroll and related expenses (including all benefits and vacation and
sick days); license and permit fees relating to the operation of the Premises;
insurance and bond premiums; and any other charges incident to the ownership,
use and/or occupancy of the Premises shall be adjusted and prorated as of the
date of the Final Closing.
(e) INTEREST ON EXISTING MORTGAGES. Interest on the Existing
Mortgages shall be adjusted and prorated as of the date of the Final Closing.
(f) FUEL AND MAINTENANCE SUPPLIES STORED ON SITE. The costs of fuel
and maintenance supplies stored on site shall be adjusted and prorated as of the
date of the Final Closing.
(g) RELETTING EXPENSES FOR NEW LEASES. Customary reletting expenses
(including, without limitation, brokerage commissions, tenant improvements and
moving expenses) for Leases entered into after the date hereof and prior to the
Final Closing shall be adjusted and prorated over the base term of the
applicable Lease and based upon prices in effect on or immediately prior to the
date of the Final Closing. All reletting expenses (including, without
limitation, brokerage commissions, tenant improvements and moving expenses) for
Leases
13
entered into prior to the date hereof shall be paid by Seller or, if not paid
prior to the Final Closing, a credit shall be given to Purchaser at the Final
Closing for such amounts.
4.2 SELLER'S RETAINED ITEMS. All cash on hand, working capital, escrow
and reserve accounts other than tenant security deposits, and utility or other
deposits shall be distributed by the Seller to its current shareholders,
partners, or members, as applicable, prior to the Final Closing.
4.3 ACCOUNTS RECEIVABLE. The Seller shall retain all accounts receivable
and other income items other than Rents which are attributable to periods prior
to the date of the Final Closing. The Seller shall deliver to the Operating
Partnership at the Final Closing a schedule of all such unpaid accounts
receivable and other income items as of the date of the Final Closing. All such
accounts receivable and other income items collected by or for the Operating
Partnership after the date of the Final Closing which are attributable to
periods prior to the date of the Final Closing shall be promptly remitted to the
order of the Seller. Except for sums actually received by the Operating
Partnership pursuant to the immediately preceding sentence, the Operating
Partnership shall assume no obligation to collect or enforce the payment of any
amounts that may be due to the Seller, except that the Operating Partnership
shall render reasonable assistance, at no expense to the Operating Partnership,
to the Seller after the Final Closing in the event the Seller proceeds against
any third-party to collect any accounts receivable or other income items due the
Seller.
4.4 SECURITY DEPOSITS. An amount equal to all tenant security deposits
and interest thereon, if any, and any other amounts due tenants with respect to
such security deposits shall be paid over to the Operating Partnership at the
Final Closing to the extent that such tenant security deposits have not been
applied against sums due under the respective lease to which such deposits
relate.
4.5 TIMING OF CALCULATIONS; COOPERATION. The Seller and the Operating
Partnership agree to use reasonable efforts to reconcile, prorate, and adjust
all of the foregoing items upon Final Closing and, in all events, within ninety
(90) days after the date of the Final Closing, to adjust and prorate such
prorations and adjustments. In the event any adjustments or prorations made
pursuant to this Contract are, subsequent to Final Closing, found to be
erroneous, then either party hereto who is entitled to additional amounts shall
invoice the other party for such additional amounts as may be owing, and such
amounts shall be paid promptly by the other party upon receipt of invoice. Such
invoice shall be accompanied by reasonable substantiating evidence.
14
4.6 ALLOCATION OF ADJUSTMENTS. All adjustments contemplated by this
Article IV shall survive the Final Closing and shall, to the extent practicable,
be made by adjusting (either up or down) the number of Units issued to the
Seller as part of the Consideration.
ARTICLE V. POWER OF ATTORNEY
5.1 GRANT OF POWER OF ATTORNEY. The Seller does hereby irrevocably
appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and the Operating Partnership,
and each of them individually and any successor thereof from time to time (such
persons or the Operating Partnership or any such successor of any of them acting
in his, her or its capacity as attorney-in-fact pursuant hereto, the
"ATTORNEY-IN-FACT") as the true and lawful attorney-in-fact and agent of such
Seller, to act in the name, place and stead of such Seller:
(a) To enter into a registration rights agreement a form of which is
attached hereto as EXHIBIT G (the "REGISTRATION RIGHTS AGREEMENT").
(b) To enter into a lock-up agreement (the "LOCK-UP AGREEMENT") which
provides that the Seller will not, directly or indirectly, offer, sell,
offer to sell, contract to sell, grant any option to purchase or otherwise
dispose of (or announce any offer, sale, offer of sale, contract of sale,
grant of any option to purchase or other sale or disposition of) any share
of REIT Common Stock or any securities convertible into or exchangeable for
or substantially similar to REIT Common Stock, for a period of one year
from the IPO Closing without the prior written consent of the managing
underwriter named in the Lock-up Agreement.
(c) To take for the Seller all steps deemed necessary or advisable by
the Operating Partnership in connection with the registration of the REIT's
Common Stock under the Securities Act, including without limitation (i)
filing a registration statement and amendments thereto under the Securities
Act which shall describe the benefits to be received by the Seller in
connection with the formation of the REIT and the IPO, (ii) distributing a
preliminary prospectus and prospectus regarding the IPO (respectively, the
"PRELIMINARY PROSPECTUS" and "PROSPECTUS") which contain such information
as is deemed necessary or desirable to lawfully effect the initial public
offering of such shares, and (iii) to take such other steps as the
Attorney-in-Fact may deem necessary or advisable.
15
(d) To make, execute, acknowledge and deliver all such other
contracts, orders, receipts, notices, requests, instructions, certificates,
consents, letters and other writings (including without limitation the
execution of Closing Documents, Ancillary Agreements, the Partnership
Agreement, any other documents relating to the acquisition by the Operating
Partnership of the Premises, and, in general, to do all things and to take
all action which the Attorney-in-Fact in its sole discretion may consider
necessary or proper in connection with or to carry out the transaction
contemplated by this Contract, the Ancillary Agreements, if any, and the
Closing Documents as fully as could the Seller if personally present and
acting.
(e) To make, acknowledge, verify and file on behalf of the Seller
applications, consents to service of process and such other undertakings or
reports as may be required by law with state commissioners or officers
administering state securities or Blue Sky laws and to take any other
action required to facilitate the exemption for registration of the Units
and the qualification of the REIT's Common Stock under the securities or
Blue Sky laws of the jurisdictions in which the Units and the REIT's Common
Stock are to be offered.
The power of attorney granted by the Seller pursuant to this Article V and
all authority conferred hereby is granted and conferred subject to and in
consideration of the interests of the Operating Partnership and the REIT and is
for the purpose of completing the transactions contemplated by this Contract.
The power of attorney granted hereby shall terminate upon termination of this
Contract. The power of attorney granted hereby and all authority conferred
hereby is coupled with an interest and therefore shall be irrevocable and shall
not be terminated by any act of the Seller or by operation of law, whether by
the death, disability, incapacity or liquidation of the Seller or by the
occurrence of any other event or events (including without limitation the
termination of any trust or estate for which the Seller is acting as a fiduciary
or fiduciaries), and if, after the execution hereof, the Seller shall die or
become disabled or incapacitated or is liquidated, as applicable, or if any
other such event or events shall occur before the completion of the transactions
contemplated by this Contract, the Attorney-in-Fact shall nevertheless be
authorized and directed to complete all such transactions as if such death,
disability, incapacity, liquidation or other event or events, as applicable, had
not occurred and regardless of notice thereof. The Seller acknowledges that
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Operating Partnership have, and
any successor thereof acting as Attorney-in-Fact may have an economic interest
in the transactions contemplated by this Contract. The Seller agrees that, at
the request of the Operating Partnership, it will
16
promptly execute a separate power of attorney on the same terms set forth in
this Article V, such execution to be witnessed and notarized.
5.2 LIMITATION ON LIABILITY. It is understood that the Attorney-in-Fact
assumes no responsibility or liability to any person by virtue of the power of
attorney granted hereby. The Attorney-in-Fact makes no representations with
respect to and shall have no responsibility for the formation of the REIT, the
acquisitions of the Premises by the Operating Partnership, the registration
statement filed in connection with the formation of the REIT, the Prospectus or
any Preliminary Prospectus, nor for any aspect of the offering of the REIT's
Common Stock, and it shall not be liable for any error of judgment or for any
act done or omitted or for any mistake of fact or law except for its own gross
negligence or bad faith. The Seller agrees that the Attorney-in-Fact may
consult with counsel of its own choice (who may be counsel for the Operating
Partnership or the REIT) and it shall have full and complete authorization and
protection for any action taken or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel. It is understood that the
Attorney-in-Fact may, without breaching any express or implied obligation to the
Seller, release, amend or modify any other power of attorney granted by any
other person under any related agreement. The provisions of this Section 5.2
shall not limit or otherwise affect the obligations of the Operating Partnership
(acting for itself and not as Attorney-in-Fact) under the other Articles of this
Contract.
5.3 RATIFICATION; THIRD PARTY RELIANCE. The Seller does hereby ratify and
confirm all that the Attorney-in-Fact shall lawfully do or cause to be done by
virtue of the exercise of the powers granted unto it by the Seller hereunder,
and the Seller authorizes the reliance of third parties on the power of attorney
granted hereby and waives its rights, if any, as against any such third party
for its reliance hereon.
ARTICLE VI. MISCELLANEOUS
6.1 AMENDMENT. Any amendment hereto shall be effective only against those
parties hereto who have acknowledged in writing their consent to such amendment.
No waiver of any provisions of this Contract shall be valid unless in writing
and signed by the party against whom enforcement is sought.
6.2 ENTIRE AGREEMENT; COUNTERPARTS; APPLICABLE LAW. This Contract and all
Ancillary Agreements (a) constitute the entire agreement and supersede
conflicting provisions set forth in all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, (b) may be executed in several counterparts, each of
which will be
17
deemed an original and all of which shall constitute one and the same instrument
and (c) shall be governed in all respects, including validity, interpretation
and effect, by the internal laws of the State of New York without giving effect
to the conflict of law provisions thereof.
6.3 ASSIGNABILITY. This Contract shall be binding upon, and shall be
enforceable by and inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and assigns; provided,
however, that this Contract may not be assigned (except by operation of law) by
any party without the prior written consent of the other parties, and any
attempted assignment without such consent shall be void and of no effect.
6.4 TITLES. The titles and captions of the Articles, Sections and
paragraphs of this Contract are included for convenience of reference only and
shall have no effect on the construction or meaning of this Contract.
6.5 THIRD PARTY BENEFICIARY. No provision of this Contract is intended,
nor shall it be interpreted, to provide or create any third party beneficiary
rights or any other rights of any kind in any customer, affiliate, stockholder,
partner, member, director, officer or employee of any party hereto or any other
person or entity, provided, however, that Sections 5.3 and 6.3 of this Contract
shall be enforceable by and shall inure to the benefit of the persons described
therein.
6.6 SEVERABILITY. If any provision of this Contract, or the application
thereof, is for any reason held to any extent to be invalid or unenforceable,
the remainder of this Contract and application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Contract with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provision and to execute any amendment,
consent or agreement deemed necessary or desirable by the Operating Partnership
to effect such replacement.
6.7 EQUITABLE REMEDIES. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Contract were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Contract and to enforce specifically the
terms and provisions hereof in any federal or state court located in New York
(as to which the parties agree to submit to jurisdiction for the purposes of
such action), this being in addition to any other remedy to which they
18
are entitled under this Contract or otherwise at law or in equity.
6.8 ATTORNEYS' FEES. In connection with any litigation or a court
proceeding arising out of this Contract, the prevailing party shall be entitled
to recover all costs incurred, including reasonable attorneys' fees and legal
assistants' fees and costs whether incurred prior to trial, at trial, or on
appeal.
6.9 NOTICES. Any notice or demand which must or may be given under this
Contract or by law shall, except as otherwise provided, be in writing and shall
be deemed to have been given (a) when physically received by personal delivery
(which shall include the confirmed receipt of a telecopied facsimile
transmission), or (b) three (3) business days after being deposited in the
United States certified or registered mail, return receipt requested, postage
prepaid, or (c) one (1) business day after being deposited with a nationally
known commercial courier service providing next day delivery service (such as
Federal Express); addressed and delivered or telecopied in the case of a notice
to the Operating Partnership at the following address and telecopy number:
▇▇ ▇▇▇▇▇ Operating Partnership, L.P.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 212-839-5599
Greenberg, Traurig, Hoffman,
Lipoff, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Ivanhoe
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
and addressed and delivered or telecopied, in the case of a notice to the
Seller, at the address and telecopy number set forth under the Seller's name in
the signature page hereof.
19
6.10 INTENTIONALLY OMITTED.
6.11 CONFIDENTIALITY. All press releases or other public communications of
any kind relating to the IPO or the transactions contemplated herein, and the
method and timing of release for publication thereof, will be subject to the
prior written approval of the Operating Partnership.
6.12 COMPUTATION OF TIME. Any time period provided for herein which shall
end on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m. of the next
full business day. All times are Eastern Time.
6.13 SURVIVAL. It is the express intention and agreement of the parties
hereto that the representations, warranties and covenants of the Seller set
forth in this Contract shall survive the consummation of the transactions
contemplated hereby.
6.14 TIME OF THE ESSENCE. Time is of the essence with respect to all
obligations of the Seller under this Contract.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
20
IN WITNESS WHEREOF, each of the parties hereto has executed this Contract,
or caused this Contract to be duly executed on its behalf, as of the date first
written above.
▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P.,
(In Formation)
By: ▇.▇. ▇▇▇▇▇ REALTY, INC., Sponsor
By:_______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
470 PARK SOUTH ASSOCIATES, L.P., Seller
By: EBG Midtown South Corp.,
a general partner
By: _______________________________
Name:
Title:
By: Miami Corp., a general partner
By:___________________________
▇▇▇▇▇▇▇ ▇▇▇▇
President
Address of Seller:
______________________
______________________
Telephone/Facsimile Numbers:
______________________
By the Seller's execution of this Contract, the Seller grants a power
of attorney to certain individuals and to the Operating Partnership hereunder
pursuant to Article V.
21
EXHIBIT A
DESCRIPTION OF LAND
EXHIBIT B
SCHEDULE OF LEASES
EXHIBIT C
CONSIDERATION
The Consideration to be paid by the Operating Partnership to the Seller for
the Premises is TWENTY-FIVE MILLION ONE HUNDRED THOUSAND and No/100 Dollars
($25,100,000.00) to be payable as follows:
(a) Units* having an aggregate value equal to ONE MILLION ONE HUNDRED
THOUSAND and No/100 Dollars ($1,100,000.00)**; and
(b) TWENTY-FOUR MILLION and No/100 Dollars ($24,000,000.00) by taking
title subject to (i) that certain first mortgage loan in the outstanding
principal balance of $11,000,000 held by Sun Life Assurance Company of Canada
(U.S.) (the "SUN LIFE MORTGAGE"); (ii) that certain second mortgage loan in the
outstanding principal balance of $1,000,000 held by ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ (the "YARMOUTH MORTGAGE") and (iii) that certain third mortgage loan
held by ▇▇▇▇▇▇▇ ▇▇▇▇, as assignee of 470 Park Holding Co., for which the holder
has agreed to accept $12,000,000 in full satisfaction of the obligations secured
thereby (the "▇▇▇▇ MORTGAGE" and together with the Yarmouth Mortgage and the Sun
Life Mortgage, the "EXISTING MORTGAGES").
The amounts specified in clause (b) above are approximate. If at the Final
Closing the aggregate principal amount of the Existing Mortgages, as reduced by
payments required thereunder prior to the Final Closing, is less than the
aggregate amount of the Existing Mortgages as specified in clause (b) above, the
difference shall be added to the portion of the Consideration paid in Units
pursuant to clause (a) above. If at the Final Closing the aggregate principal
amount of the Existing Mortgages is greater that the aggregate principal amount
of the Existing Mortgages as specified in clause (b) above, the difference shall
be subtracted from portion of the Consideration paid in Units pursuant to clause
(a) above.
* Each Unit will be valued for these purposes at the initial public offering
price of a share of Common Stock.
** Subject to adjustment pursuant to Article IV of the Contract.
EXHIBIT D
PERMITTED ENCUMBRANCES
1. The Sun Life Mortgage
2. The Yarmouth Mortgage
3. The ▇▇▇▇ Mortgage
4. Subway Entrance Easement in Liber 4505 page 468
5. Covenants and Restrictions in Liber 337 page 341
6. Party Wall Agreement in Liber 1096 page 667
7. Any state of facts on accurate survey of the Premises would disclose
provided the same does not render title unmarketable
8. Option Agreement between 470 Park South Associates, L.P. and Mellon
Bank, N.A., as trustee of the ▇▇▇▇ Atlantic Master Pension Trust as
evidenced by memorandum in Reel 1116 page 1561
EXHIBIT E
Operating Partnership Agreement
EXHIBIT F
Investor Questionnaire
EXHIBIT G
Registration Rights Agreement