Exhibit 2.2
[Australian LPT]
ASSET PURCHASE AGREEMENT
between
SL GREEN REALTY CORP.
as seller
and
RA CORE PLUS LLC
as purchaser
Dated as of
October 13, 2006
TABLE OF
CONTENTS
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Page
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ARTICLES
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ARTICLE I
DEFINITIONS
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1
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ARTICLE II SALE AND PURCHASE OF
PROPERTIES
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9
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ARTICLE III REPRESENTATIONS AND
WARRANTIES OF PURCHASER
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19
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ARTICLE IV REPRESENTATIONS AND
WARRANTIES OF SELLER
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20
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ARTICLE V COVENANTS; OPERATING
COVENANTS; PROPERTY MANAGEMENT
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22
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ARTICLE VI CONDITIONS
PRECEDENT
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22
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ARTICLE VII ADDITIONAL
AGREEMENTS
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24
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ARTICLE VIII DEFAULT
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25
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ARTICLE IX AS IS
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27
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ARTICLE X NOTICES
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29
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ARTICLE XI MISCELLANEOUS
PROVISIONS
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30
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EXHIBITS
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Exhibit A
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Intentionally Omitted
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Exhibit B
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Other Contracts
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Exhibit C
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Intentionally Omitted
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Exhibit D
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Sold Land
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Exhibit E
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Sold Subsidiaries
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Exhibit F
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Other Sold Assets
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Exhibit G
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Escrow Wire Instructions
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Exhibit H
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Intentionally Omitted
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Exhibit I
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Intentionally Omitted
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Exhibit J
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Intentionally Omitted
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Exhibit K
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Intentionally Omitted
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Exhibit L
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Form of Assignment and
Assumption of Contracts
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Exhibit M
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Form of Assignment and
Assumption of Interest
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Exhibit N
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Intentionally Omitted
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Exhibit O
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Seller Loan Commitment
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Exhibit P
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Intentionally Omitted
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Exhibit Q
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Intellectual Property
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i
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Exhibit R
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Letter of Credit
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Exhibit S
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Tranche 3 Properties
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Exhibit T
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Intentionally Omitted
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Exhibit U
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Australian Option
Properties
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Exhibit V
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Assumed Debt Indemnity
Agreement
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SCHEDULES
Schedule 1
ii
ASSET PURCHASE
AGREEMENT
THIS AGREEMENT is entered into as of
the 13th day of October, 2006, between SL GREEN REALTY CORP., a
Maryland corporation, having an address at 420 Lexington Avenue,
New York, New York 10170 (“ Seller ”), and RA
CORE PLUS LLC, a Delaware limited liability company, having an
address at 625 Reckson Plaza, Uniondale, New York 11556(“
Purchaser ”).
W I T N E S
S E T H :
WHEREAS, Seller is party to a Merger
Agreement with Wyoming Acquisition Corp., Wyoming Acquisition GP
LLC, Wyoming Acquisition Partnership LP, Reckson Associates Realty
Corp. (“ RAR ”) and Reckson Operating
Partnership, L.P. (“ ROP ”), dated as of
August 3, 2006 (as the same may be amended as permitted
hereunder, the “ Merger Agreement ”);
WHEREAS, pursuant to a letter
agreement dated August 3, 2006 and a letter agreement dated
September 15, 2006 (collectively, the “ Original
Letter Agreement ”) in connection with consummating the
merger contemplated by the Merger Agreement (the “
Merger ”), Seller has agreed to direct RAR or the
Applicable Parties (as hereafter defined) pursuant to
Section 1.11 of the Merger Agreement to cause to be
sold, and Purchaser has agreed to purchase, the Assets (hereinafter
defined) subject to and in accordance with the terms
hereof;
WHEREAS, in connection with
consummating the transactions contemplated by the Original Letter
Agreement, Seller and Purchaser are entering into (i) this
Agreement, (ii) those certain Asset Purchase Agreements
described on Exhibit B attached hereto (the “
Other Contracts ”) and (ii) that certain letter
agreement effective as of the date hereof (the “ Letter
Agreement ”); and
WHEREAS, Seller and Purchaser desire
that this Agreement, the Other Contracts and the Letter Agreement
shall amend and restate the Original Letter Agreement in its
entirety.
NOW, THEREFORE, in consideration of
the mutual premises herein set forth and other valuable
consideration, the receipt of which is hereby acknowledged, Seller
and Purchaser agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1
Definitions
. For purposes of this
Agreement, the following terms shall have the meanings indicated
below:
“ Affiliate ”
means, with respect to any specified Person, any other Person that
directly, or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with the
specified Person. For purposes of this definition, the term
“control” means the possession, directly or indirectly,
of the power to direct or cause the direction of the
management and policies of a Person,
whether through ownership of voting stock, by contract or
otherwise.
“ Agreement ”
means this Asset Purchase Agreement, including all Schedules and
Exhibits, as the same may be amended, supplemented, restated or
modified.
“ Applicable Party
” means whichever of RAR or Seller (plus any subsidiary or
Affiliate of RAR or Seller, including, without limitation, ROP) who
is the party (or parties) that is responsible under the applicable
provisions of this Agreement.
“ Asbestos ” has
the meaning given that term in Section 9.4 .
“ Asset ” has the
meaning given that term in Section 2.2 .
“ Assignment and Assumption
of Contracts ” has the meaning given that term in
Section 2.4(a) .
“ Assignment and Assumption
of Interest ” has the meaning given that term in
Section 2.4(a) .
“ Assignment and Assumption
of Leases ” has the meaning given that term in
Section 2.4(a) .
“ Assumed Debt Indemnity
Agreement ” has the meaning given that term in
Section 11.17.
“ Assumed Indebtedness
” has the meaning given that term in
Section 11.17 .
“ Books and Records
” means all books, records, lists of tenants and prospective
tenants, files and other information (including, without
limitation, any thereof in electronic format) maintained by RAR or
its agents with respect to the ownership, use, leasing, occupancy,
operation, maintenance or repair of any Assets or any
Properties.
“ Business Day ”
means any day other than a Saturday, Sunday or day on which the
banks in New York, New York are authorized or obligated by law to
be closed.
“ Cash Deposit ”
has the meaning given that term in Section 2.3(a)
.
“ Claim ” means
any claim, action, suit, demand or legal proceeding.
“ Closing ” has
the meaning given that term in Section 2.1(b)
.
“ Closing Date ”
has the meaning given that term in Section 2.1(b)
.
“ Code ” shall
mean the Internal Revenue Code of 1986, as amended.
“ Contracts ”
means all brokerage or commission agreements, construction,
service, supply, security, maintenance, union, telecommunications
or other contracts or agreements.
2
“ Current Month ”
has the meaning given that term in Section 2.6
.
“ Deed ” has the
meaning given that term in Section 2.4(a) .
“ Deposit ” has
the meaning given that term in Section 2.3(a)
.
“ Deposit Letter of
Credit ” has the meaning given that term in
Section 2.3(a) .
“ Determination Date
” has the meaning given that term in
Section 6.4(c) .
“ Easements ”
means, with respect to a parcel of Sold Land or Sold Subsidiary
Land, all easements, covenants, privileges, rights of way and other
rights appurtenant to such Sold Land or Sold Subsidiary
Land.
“ Environmental Laws
” has the meaning given that term in Section 9.4
.
“ Escrow Holder ”
has the meaning given that term in Section 2.3(a)
.
“ Executory Period
” means the period commencing on the date hereof through the
Closing Date.
“ Existing Debt ”
means, with respect to the Assets, the indebtedness evidenced by
any loan or other credit agreements pursuant to which RAR or an
Affiliate is the borrower, all notes issued thereunder, all
reserves, all related documents and all filings made in connection
therewith.
“ Expedited Arbitration
Proceeding ” means a binding arbitration proceeding
conducted in The City of New York under the Commercial Arbitration
Rules of the American Arbitration Association (or its
successor) and administered pursuant to the Expedited Procedures
provisions (the “ Expedited Procedures ”)
thereof; provided , however , that with respect to
any such arbitration (a) the list of arbitrators referred to
in Section E-4(b) of the Expedited Procedures shall be
returned within five (5) Business Days from the date of
mailing, (b) the parties shall notify the American Arbitration
Association (or its successor) by telephone, within four
(4) Business Days, of any objections to the arbitrator
appointed and, subject to clause (g) below, shall have no
right to object if the arbitrator so appointed was on the list
submitted by the American Arbitration Association (or its
successor) and was not objected to in accordance with
Section E-4(b) of the Expedited Procedures as modified by
clause (a) above, (c) the notification of the
hearing referred to in Section E-8 of the Expedited Procedures
shall be four (4) Business Days in advance of the hearing,
(d) the hearing shall be held within seven (7) Business
Days after the appointment of the arbitrator, (e) the
arbitrator shall have no right to award damages or vary, modify or
waive any provision of this Agreement, (f) the decision of the
arbitrator shall be final and binding on the parties and
(g) the arbitrator shall not have been employed by either
party (or their respective Affiliates) during the period of three
(3) years prior to the date of the Expedited Arbitration
Proceeding. The arbitrator shall determine the extent to
which each party is successful in such Expedited Arbitration
Proceeding in addition to rendering a decision on the dispute
submitted. If the arbitrator determines that one
(1) party is entirely unsuccessful, then, notwithstanding
Section 2.8 hereof, such party shall pay all of the
fees of such arbitrator plus the reasonable, out-of-pocket costs
and expenses incurred by the prevailing party in connection
with
3
the arbitration. Notwithstanding
Section 2.8 hereof, if the arbitrator determines that
both parties are partially successful, then each party shall be
responsible for such arbitrator’s fees and such party’s
own third-party costs and expenses to the extent of such
party’s degree of success as determined by the
arbitrator.
“ Fee Estate ”
means, with respect to a parcel of land, the fee estate in such
land, including, without limitation, all of the land in respect of
such Property and any interest of the Applicable Party in any
adjoining parcel or parcels that may be needed for such parcel to
be in compliance with applicable Law or applicable
Leases.
“ General Intangibles
” means, with respect to a parcel of land, all trade names,
trademarks, logos, copyrights and other intangible personal
property owned by RAR or its Affiliates relating to such parcel of
land or the Improvements or Personal Property with respect to such
parcel of land other than the name, “Reckson”, which
shall be licensed on a non-exclusive basis pursuant to
Section 11.15 .
“ Governmental
Authority ” means any agency, bureau, department or
official of any federal, state or local governments or public
authorities or any political subdivision thereof.
“ Ground Leasehold
Estate ” means, with respect to a parcel of land, the
ground leasehold estate in such land, including, without
limitation, all of the land in respect of such Property and any
interest of the Applicable Party in any adjoining parcel or parcels
that may be needed for such parcel to be in compliance with
applicable Law or applicable Leases.
“ Hazardous Materials
” has the meaning given that term in Section 9.4
.
“ Improvements ”
means, with respect to a parcel of land, all buildings, structures
and improvements on such parcel of land, including all building
systems and equipment relating thereto.
“ Land ” means
all of the parcels of Sold Land and Sold Subsidiary
Land.
“ Law ” means any
law, rule, regulation, order, decree, statute, ordinance, or other
legal requirement passed, imposed, adopted, issued or promulgated
by any Governmental Authority.
“ LC Deposit ”
has the meaning given that term in Section 2.3(a)
.
“ Leases ” means
all leases, subleases, license agreements and other occupancy
agreements pursuant to which any Person has the right to occupy, or
is otherwise leased or demised, any portion of a Property, together
with any and all amendments, modifications, expansions, extensions,
renewals, guarantees or other agreements relating
thereto.
“ Letter Agreement
” has the meaning given that term in the recitals.
“ Letter of Credit
” means a clean, irrevocable, non-documentary and
unconditional letter of credit, in form and substance reasonably
acceptable to Seller, naming Escrow Holder as beneficiary and
issued by Citigroup, N.A. or any bank which is a member of the New
York
4
Clearing House Association and which
bank is otherwise reasonably acceptable to Seller, the term of
which shall not expire prior to the date that is thirty (30) days
after the “Termination Date” (as such term is defined
in the Merger Agreement) and which provides that it may be drawn on
sight upon presentation or by facsimile, by the beneficiary
thereunder, upon a certification that a Purchaser Default has
occurred under this Agreement or under any of the Other Contracts
(for the Deposit B Letter of Credit). Notwithstanding the
foregoing, Seller acknowledges that it has approved the letter of
credit attached hereto as Exhibit R .
“ Licenses and Permits
” means, with respect to any Property, to the extent they may
be transferred under applicable Law, all licenses, permits,
certificates of occupancy and authorizations issued to the
Applicable Party or agent thereof pertaining to or in connection
with the operation, use, occupancy, maintenance or repair of such
parcel of land, and the Improvements or Personal Property with
respect to such parcel of land.
“ Merger ” has
the meaning given that term in recitals.
“ Merger Agreement
” has the meaning given that term in recitals.
“ Merger Closing
” means the closing of the Merger contemplated by and in
accordance with the Merger Agreement.
“ Original Letter
Agreement ” has the meaning given that term in the
recitals.
“ Other Contracts
” has the meaning given that term in the recitals.
“ Other Party ”
has the meaning given that term in Section 2.4(f)
.
“ Other Sold Assets
” has the meaning given that term in
Section 2.2(e) .
“ Other Sold Asset
Assignment ” has the meaning given such term in
Section 2.4(a) .
“ Overage Rent ”
has the meaning given that term in Section 2.6
.
“ Ownership Interest
” shall mean, with respect to any Person, ownership of the
right to profits and losses of, distributions from and/or the right
to exercise voting power to elect directors, managers, operators or
other management of, or otherwise to affect the direction of
management, policies or affairs of, such Person, whether through
ownership of securities or partnership, membership or other
interests therein, by contract or otherwise.
“ PCBs ” has the
meaning given that term in Section 9.4 .
“ Permitted Exceptions
” means:
(a)
All presently
existing and future liens for unpaid real estate taxes and water
and sewer charges not due and payable as of the date of the
Closing, subject to adjustment as hereinbelow provided.
5
(b)
All present and
future zoning, building, environmental and all other laws,
ordinances, codes, restrictions and regulations of all governmental
authorities having jurisdiction with respect to the Properties,
including, without limitation, all landmark designations and all
zoning variances and special exceptions, if any (collectively,
“ Laws and Regulations ”).
(c)
All presently
existing and future covenants, restrictions, rights easements and
agreements for the erection and/or maintenance of water, gas,
steam, electric, telephone, sewer or other utility pipelines,
poles, wires, conduits or other like facilities, and appurtenances
thereto, over, across and under the Properties (collectively,
“ Rights ”).
(d)
Any state of
facts which would be shown on or by an accurate current survey or
physical inspection of the Properties (collectively, “
Facts ”).
(e)
Rights of Tenants
of the Properties pursuant to leases or otherwise and others
claiming by, through or under the Leases.
(f)
All
Contracts.
(g)
All violations of
all Laws and Regulations, including, without limitation, building,
fire, sanitary, environmental, housing and similar Laws and
Regulations, whether or not noted or issued at the date hereof or
at the date of the Closing (collectively, “ Violations
”).
(h)
Consents by any
present or former owner of the Properties for the erection of any
structure or structures on, under or above any street or streets on
which the Properties may abut.
(i)
Possible
encroachments and/or projections of stoop areas, roof cornices,
window trims, vent pipes, cellar doors, steps, columns and column
bases, flue pipes, signs, piers, lintels, window sills, fire
escapes, satellite dishes, protective netting, sidewalk sheds,
ledges, fences, coping walls (including retaining walls and yard
walls), air conditioners and the like, if any, on, under or above
any street or highway, the Properties or any adjoining
property.
(j)
Variations
between tax lot lines and lines of record title.
(k)
All exclusions
and exceptions from coverage contained in any title policy or
“marked-up” title commitment issued to any Applicable
Party with respect to the Properties.
(l)
Any financing
statements, chattel mortgages, encumbrances or mechanics’ or
other liens entered into by, or arising from, any financing
statements filed on a day more than five (5) years prior to
the Closing and any financing statements, chattel mortgages,
encumbrances or mechanics’ or other liens filed against
property no longer on the Properties.
(m)
Any lien,
encumbrance, pledge, hypothecation, easement, restrictive covenant,
assignment, preference, security interest or charge (including,
without limitation, any mechanics’ and materialmens’
lien) affecting the Properties other than those created by Seller
in violation of Section 5.4 of this
Agreement.
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“ Person ” means
an individual, corporation, partnership, limited liability company,
joint venture, association, joint stock company, trust,
unincorporated organization, or other entity.
“ Personal Property
” means, with respect to any Sold Land or any Sold Subsidiary
Land, all of the Applicable Party’s interest in and to all
furniture, fixtures, equipment, chattels, machinery and other
personal property owned by such Applicable Party which were, as of
August 3, 2006, placed in, located on or attached to such land
and Improvements on Sold Land or Sold Subsidiary Land, as
applicable, and used or usable in connection with the operation,
use, occupancy, maintenance or repair thereof, and any such
personal property that, in the ordinary course of business,
replaces such personal property placed in, located on or attached
to such land and Improvements on Sold Land or Sold Subsidiary Land
as of August 3, 2006.
“ Property(ies) ”
means the Sold Properties and the Sold Subsidiary
Properties.
“ Proration Agreement
” has the meaning given that term in
Section 2.5(e) .
“ Purchase Price
” has the meaning given that term in Section 2.3
.
“ Purchaser ” is
the entity identified as such in the first paragraph of this
Agreement, and any successor or assign.
“ Purchaser Default
” has the meaning given that term in Section 8.1
.
“ Purchaser Due
Diligence ” has the meaning given that term in
Section 9.1 .
“ Purchaser Related
Party ” has the meaning given that term in
Section 9.5 .
“ RAR ” means
Reckson Associates Realty Corp., a Maryland corporation.
“ Requesting Party
” has the meaning given that term in
Section 2.4(f) .
“ ROP ” means
Reckson Operating Partnership, L.P., a Delaware limited
partnership.
“ Seller ” has
the meaning given that term in the first paragraph of this
Agreement.
“ Seller Financing
” has the meaning given that term in
Section 11.14.
“ Seller Loan
Commitment ” has the meaning given such term in
Section 11.14.
“ Seller Related
Parties ” means Seller, RAR, ROP, the Applicable Parties,
any Affiliate of Seller and their respective direct or indirect
members, partners, stockholders, officers, directors, employees and
agents.
“ Sold Equity Interests
” has the meaning given that term in
Section 2.2(c).
7
“ Sold Land ”
means all of the parcels of land described in Exhibit D
and, when used with reference to a particular Sold Property, means
the parcel of land relating to such Sold Property.
“ Sold Properties
” has the meaning given that term in
Section 2.2(b).
“ Sold Subsidiaries
” has the meaning given that term in
Section 2.2(c).
“ Sold Subsidiary Land
” means all of the parcels of land owned by the Sold
Subsidiaries.
“ Sold Subsidiary
Properties ” has the meaning given that term in
Section 2.2(d).
“ Systems ” means
(i) a non-exclusive license in and to the systems, software
and software licenses owned by the Applicable Party and necessary
to operate any of the Properties if such systems, software and
software licenses are used for the operation of RAR’s
business with respect to anything other than the Assets as
conducted on the date hereof and (ii) if such systems,
software and software licenses are not used for the operation of
RAR’s business with respect to anything other than the Assets
as conducted on the date hereof, all right, title and interest of
the Applicable Party in such systems, software and software
licenses owned by an Applicable Party and necessary to operate any
of the Properties.
“ Taking ” has
the meaning given that term in Section 7.1(b)
.
“ Tax Proceedings
” has the meaning given that term in Section 7.2
.
“ Tenant ” has
the meaning given that term in Section 2.4(a)
.
“ Third Party ”
means any Person other than Seller and its Affiliates.
“ Tranche 3 Properties
” has the meaning given that term in
Section 11.19 .
“ Wire Transfer Funds
” has the meaning given that term in
Section 2.3(a) .
Section 1.2
Rules of Construction
.
(a)
All uses of the
term “including” shall mean “including, but not
limited to,” unless specifically stated
otherwise.
(b)
Unless the
context otherwise requires, singular nouns and pronouns, when used
herein, shall be deemed to include the plural of such noun or
pronoun, pronouns of one gender shall be deemed to include the
equivalent pronoun of the other gender and references to a
particular Section, Addendum, Schedule or Exhibit shall
be deemed to mean the particular Section of this Agreement or
Addendum, Schedule or Exhibit attached hereto,
respectively.
8
ARTICLE II
SALE AND PURCHASE OF
PROPERTIES
Section 2.1
Sale and Purchase of the
Properties .
(a)
Subject to the
terms of this Agreement, Seller agrees to direct RAR or the
Applicable Parties (for Assets conveyed immediately after the
Merger Closing) to sell, assign and convey unto Purchaser, and
Purchaser agrees to purchase, assume and accept, the Assets from
RAR or the Applicable Parties.
(b)
The closing of
the sale of the Assets (the “ Closing ”) shall
be held on the Business Day of the Merger Closing, but immediately
prior to the Merger Closing (the “ Closing Date
”); provided, however, that Purchaser at least two
(2) Business Days prior to Closing may designate certain
Assets that shall close in a contemporaneous transaction on the
Business Day of, but immediately after, the Merger Closing.
TIME BEING OF THE ESSENCE with respect to the performance by
Purchaser of its obligations to purchase the Assets and pay the
Purchase Price as provided in this Agreement on the Closing
Date.
Section
2.2
Assets .
(a)
As used herein,
the term “ Assets ” means the Sold Properties,
the Sold Equity Interests and the Other Sold Assets, the Systems
and the Books and Records.
(b)
As used herein,
the term “ Sold Property ” means all of the
Applicable Parties’ interest in the following for each single
parcel of Sold Land:
(i)
the Fee Estate or
Ground Leasehold Estate, as applicable, with respect to such parcel
of Sold Land;
(ii)
all Improvements
with respect to such parcel of Sold Land;
(iii)
all Easements
with respect to such parcel of Sold Land;
(iv)
all Personal
Property with respect to such parcel of Sold Land;
(v)
all Licenses and
Permits with respect to such parcel of Sold Land;
(vi)
to the extent
assignable, all warranties, if any, issued to the Applicable Party
by any manufacturer or contractor in connection with any
Improvements or Personal Property with respect to such parcel of
Sold Land;
(vii)
to the extent
assignable, Contracts held by the Applicable Party with respect to
the use, occupancy, maintenance, repair or operation of any of the
foregoing;
(viii)
all General
Intangibles with respect to such parcel of Sold Land;
and
9
(ix)
(A) all
right, title and interest of the Applicable Party in and to the
Leases and the rents and profits therefrom, subject to
Section 2.5 , and (B) any security deposited under
the Leases.
(c)
As used herein,
the term “ Sold Equity Interests ” means all of
the Applicable Party’s direct and indirect Ownership
Interests in the “ Sold Subsidiaries ” set forth
on Exhibit E .
(d)
As used herein,
the term “ Sold Subsidiary Properties ” means
all of Applicable Party’s direct and indirect equity interest
in:
(i)
the Fee Estate or
Ground Leasehold Estate, as applicable, with respect to such parcel
of Sold Subsidiary Land;
(ii)
all Improvements
with respect to such parcel of Sold Subsidiary Land;
(iii)
all Easements
with respect to such parcel of Sold Subsidiary Land;
(iv)
all Personal
Property with respect to such parcel of Sold Subsidiary
Land;
(v)
all Licenses and
Permits with respect to such parcel of Sold Subsidiary
Land;
(vi)
to the extent
assignable, all warranties, if any, issued to the Applicable Party
or agent thereof by any manufacturer or contractor in connection
with any Improvements or Personal Property with respect to such
parcel of Sold Subsidiary Land;
(vii)
to the extent
assignable, Contracts held by the Applicable Party with respect to
the use, occupancy, maintenance, repair or operation of any of the
foregoing;
(viii)
all General
Intangibles with respect to such parcel of Sold Subsidiary Land;
and
(ix)
(A) all
right, title and interest of the Applicable Party in and to the
Leases and the rents and profits therefrom, subject to
Section 2.5 , and (B) any security deposited under
the Leases.
(e)
As used herein,
the term “ Other Sold Assets ” means each of the
assets set forth on Exhibit F .
(f)
During the
Executory Period the parties will negotiate in good faith so that
Personal Property located on site at any transferred property, not
integral to operation of RAR’s business, will be transferred
to Purchaser at Closing, at no additional cost to Purchaser
and
10
without
representation, warranty or recourse to Seller, or the Applicable
Party provided any sales tax due in connection therewith is paid by
Purchaser.
(g)
Intentionally
Omitted
Section 2.3
Purchase Price
. The purchase price (the
“ Purchase Price ”) for the Assets is set forth
in Column A of Schedule 1 attached hereto, subject to the
adjustments and prorations herein, payable as set forth
below. The parties agree that the value of the Personal
Property is de minimis and no part of the Purchase Price is
allocable thereto. The parties further agree that, except as
otherwise may be required by applicable Law, the transactions
contemplated by this Agreement will be reported for all tax
purposes in a manner consistent with the terms of this Agreement,
and that neither party (nor any of their Affiliates) will take any
position inconsistent therewith.
(a)
Simultaneously
with the execution of this Agreement by Purchaser, Purchaser is
delivering an aggregate deposit in the amount set forth in Column B
of Schedule 1 attached hereto by delivering (a) the
amount set forth in Column C of Schedule 1 attached hereto
(the “ Cash Deposit ”) to First American Title
Insurance Company, as escrow agent (when acting in the capacity of
escrow agent, the “ Escrow Holder ”) by wire
transfer of immediately available federal funds (“ Wire
Transfer Funds ”) to the account set forth on
Exhibit G , (b) to Escrow Holder, a Letter of
Credit in the amount set forth in Column D of Schedule 1
attached hereto (the “ Deposit A Letter of Credit
”) and (c) to Escrow Holder, a Letter of Credit in the
amount set forth in Column E of Schedule 1 attached hereto
(the “ Deposit B Letter of Credit ”), a portion
of which equal to the amount set forth in Column F of
Schedule 1 attached hereto (the “ Deposit B LC
Deposit ” and, together with the Deposit A Letter of
Credit, the “ LC Deposit ”; the LC Deposit
together with the Cash Deposit, the “ Deposit ”)
shall be allocable to the Deposit under this Agreement;
(b)
Upon receipt by
Escrow Holder of the Cash Deposit, Escrow Holder shall cause the
same to be deposited into an interest bearing account selected by
Escrow Holder mutually agreeable to Purchaser and Seller (it being
agreed that Escrow Holder shall not be liable for the amount of
interest which accrues thereon) in accordance with the terms of
that certain Escrow Agreement of even date herewith between Seller,
Purchaser and Escrow Holder. If the Closing shall occur, the
interest on the Cash Deposit, if any, shall be paid to Purchaser,
and, if the Closing shall not occur and this Agreement shall be
terminated, then the interest earned on the Cash Deposit shall be
paid to the party entitled to receive the Deposit as provided in
this Agreement. The party receiving such interest shall pay
any income taxes thereon.
(c)
Purchaser may
replace the Cash Deposit with a Letter of Credit in the amount of
the Cash Deposit (the “ Replacement LC ”).
In such event the Cash Deposit shall be returned to Purchaser upon
receipt of the Replacement LC by Escrow Holder. Purchaser may
replace the LC Deposit with cash at any time prior to Closing by
sending Escrow Holder Wire Transfer Funds in an amount equal to the
amount of the Deposit A Letter of Credit and the Deposit B Letter
of Credit (the “ Additional Cash Deposit
”). Upon receipt of the Additional Cash Deposit, Escrow
Holder shall return the Deposit A Letter of Credit and the Deposit
B Letter of Credit to Purchaser. The portion of the
Additional Cash Deposit equal to the LC Deposit (the
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“ LC
Replacement Funds ”) shall be held hereunder in the same
manner as the Cash Deposit and shall be paid to the party entitled
to the Cash Deposit.
(d)
At the Closing,
the Cash Deposit and the LC Replacement Funds, if any, shall be
paid to Seller and Purchaser shall deliver the balance of the
Purchase Price (i.e., the Purchase Price less the Cash Deposit and
the LC Replacement Funds, if any) to RAR by Wire Transfer Funds as
directed by Seller, as adjusted pursuant to Section 2.5
hereof. As part of the Purchase Price, Purchaser will deliver
to Seller, Wire Transferred Funds for the amount of the LC Deposit
and any Replacement LC, or at Purchaser’s direction the
Deposit A Letter of Credit, the Deposit B Letter of Credit (in an
amount equal to the Deposit B LC Deposit) and the Replacement LC
shall be drawn upon by Escrow Holder, and the proceeds shall be
disbursed in the same manner as the Cash Deposit and credited
against the Purchase Price; provided that Purchaser shall only
receive a credit against the Purchase Price hereunder for that
portion of the Deposit B Letter of Credit equal to the Deposit B LC
Deposit. Upon Escrow Holder’s receipt of Wire
Transferred Funds equal to sum of the LC Deposit, Escrow Holder
shall return the Deposit A Letter of Credit to
Purchaser.
(e)
Upon a Purchaser
Default Seller may make a written demand upon Escrow Holder for
payment of the proceeds of the LC Deposit and, Escrow Holder shall
be entitled to and shall draw upon the same and dispose of the
proceeds thereof in the same manner as it would dispose of the
Deposit under this Agreement as required pursuant to the terms of
Section 8.1 of this Agreement.
Section 2.4
Closing Deliveries
. On the Closing
Date:
(a)
Seller shall, or
shall direct the Applicable Party to:
(i)
(A) for each
Sold Property in which the Applicable Party owns the Fee Estate,
execute and deliver to Purchaser a quitclaim deed, in the form
attached hereto as Exhibit H (the “ Deed
”), and (b) for each Sold Property in which the
Applicable Party owns the Ground Lease Estate, execute and deliver
to Purchaser an assignment of Lease in the form attached hereto as
Exhibit I (the “ Assignment and Assumption of
Ground Lease ”) in each case conveying the Applicable
Party’s interest in the Properties subject to the Permitted
Exceptions, it being understood and agreed, that notwithstanding
anything contained herein to the contrary, Purchaser shall have no
right to object to any title matter, other than a violation of
Section 5.4 hereof, affecting the Properties,
including, without limitation, the fact that a Property may not
have a certificate of occupancy or that the state or use of a
Property may vary from that set forth in any certificate of
occupancy that may exist;
(ii)
for each Sold
Property, execute and deliver to Purchaser a bill of sale covering
the Personal Property in the form attached hereto as
Exhibit J ;
(iii)
for each Sold
Property, execute and deliver to Purchaser an assignment (the
“ Assignment and Assumption of Leases ”) of all
Leases and security deposits which shall be in recordable form and
in the form attached hereto as Exhibit K ;
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(iv)
for each Sold
Property, execute and deliver to Purchaser an assignment (the
“ Assignment and Assumption of Contracts ”) of
all Contracts, Licenses and Permits, General Intangibles,
warranties and guaranties affecting such Property, in the form
attached hereto as Exhibit L ;
(v)
for each Sold
Equity Interest, execute and deliver to Purchaser (x) an assignment
(the “ Assignment and Assumption of Interest ”)
of the Sold Equity Interests in the form attached hereto as
Exhibit M and/or (y) with respect to any Sold Equity
Interests that is stock of a corporation, stock certificate and a
stock transfer instrument, without representation, warranty or
recourse;
(vi)
for each Other
Sold Asset, execute and deliver to Purchaser (x) an assignment (the
“ Other Sold Asset Assignment ”) without
representation, warranty or recourse, covering such Other Sold
Asset and/or (y) with respect to any Other Sold Asset that is stock
of a corporation, a stock certificate and a stock transfer
instrument, without representation, warranty or
recourse;
(vii)
execute and
deliver to Purchaser a nonforeign affidavit;
(viii)
for each Sold
Property, execute and deliver to Purchaser a letter addressed to
each tenant, licensee or occupant under any Lease (“
Tenant ”) advising the Tenant of the sale of the
Property and assignment of its Lease in the form attached hereto as
Exhibit O ;
(ix)
execute and
deliver to Purchaser the Proration Agreement;
(x)
Seller shall
deliver a copy of such corporation resolution of Seller, if any,
provided in connection with the Merger Closing; and
(xi)
execute and
deliver to Purchaser such documents as Purchaser may reasonably
require to evidence the assignment of the Systems without
representation, warranty or recourse.
(b)
Seller shall
endeavor to cause the Applicable Party to deliver to Purchaser the
following items without representation, warranty or recourse to
Seller, the Applicable Party or any Seller Related Party the
following items; provided, however, that the delivery of such items
shall in no way be deemed a condition precedent to closing and the
failure of which shall not be a default hereunder; provided,
further that if Seller or the Applicable Party obtains such items
after Closing it shall turn them over to Purchaser:
(i)
for each Sold
Property, deliver to Purchaser the security deposits then held by
the Applicable Party pursuant to the Leases, and to the extent that
any security deposit made under a Lease is in the form of a letter
of credit to the extent within Seller’s control (including
Seller’s ability to direct the Applicable Party), deliver
such assignments and other instruments as Purchaser may reasonably
require to transfer such letter of credit to Purchaser or, if
Purchaser so requires, to Purchaser’s mortgage lender on the
applicable Property; provided, that Purchaser shall pay all fees in
connection with the transfer of any letters of credit if the Tenant
is not obligated to pay such fees; and
13
provided,
further, that after Closing, until any such letter of credit is
transferred or replaced, upon receipt of Purchaser’s
certification that a default has occurred under the applicable
lease entitling the landlord thereunder to apply the security
deposit, Seller shall cause the Applicable Party to draw upon such
letter of credit and deliver the proceeds thereof to
Purchaser. Purchaser hereby indemnifies and holds the Seller
Related Parties harmless against all Claims, demands, costs,
expenses, liabilities, judgments and suits (including reasonable
attorneys’ fees and disbursements) which the Seller Related
Parties may incur as a result of any such drawing upon the letter
of credit and such indemnification shall survive
Closing;
(ii)
with respect to
each Property, deliver to Purchaser or Purchaser’s property
manager signed originals or, if unavailable, copies, of all
Leases;
(iii)
with respect to
each Property or Other Sold Asset that includes a Contract, deliver
to Purchaser or Purchaser’s property manager signed originals
or, if unavailable, copies, of all Contracts, Licenses and
Permits;
(iv)
with respect to
each Property, deliver to Purchaser or Purchaser’s property
manager for all Improvements copies of all warranties, guaranties,
service manuals and other documentation in the possession or
control of Seller, its agents or any Affiliate pertaining to such
Property;
(v)
with respect to
each Property, deliver to Purchaser or Purchaser’s property
manager for all Improvements all keys and combinations to locks
that are in the possession or control of Seller or the Applicable
Party;
(vi)
with respect to
each Property, deliver to Purchaser or Purchaser’s property
manager for all Improvements copies of all plans and specifications
that are in the possession or control of Seller or the Applicable
Party;
(vii)
intentionally
omitted;
(viii)
deliver to
Purchaser or Purchaser’s property manager (with Seller having
the right to retain copies thereof) all of the Books and
Records;
(ix)
Deliver notices
to the service providers under the contracts advising them of the
sale of the Asset; and
(x)
Will request
resolutions from the Applicable Parties authorizing the
transactions.
(c)
Purchaser
shall:
(i)
deliver to Seller
the balance of the Purchase Price payable at the Closing in
accordance with Section 2.3, as adjusted for apportionments
under Section 2.5;
14
(ii)
execute and
deliver to Seller the Assignment and Assumption of
Leases;
(iii)
execute and
deliver to Seller the Proration Agreement;
(iv)
execute and
deliver to Seller the Assignment and Assumption of
Contracts;
(v)
execute and
deliver to Seller the Assignment and Assumption of
Interest;
(vi)
execute and
deliver to Seller the Assignment and Assumption of Ground
Lease;
(vii)
execute and
deliver to Seller the Other Sold Asset Assignment; and
(viii)
execute and
deliver to Seller the Assumed Debt Indemnity Agreement, if
necessary.
(d)
Not later than
two (2) Business Days prior to Closing Purchaser may designate
one or more different entities to which Assets shall be conveyed in
accordance with this Agreement, provided that at Closing, such
designee assumes, in writing, those obligations imposed under this
Agreement upon Purchaser which survive the Closing with respect to
such Assets conveyed to such designee; provided, further, that the
assumption by such designee shall not relieve Purchaser from any
obligations or liability arising under this Agreement, and
that Purchaser indemnifies and holds Seller and the Seller Related
Parties harmless from any Claims, liabilities, losses, damages
costs and expenses (including reasonable attorneys’ fees)
incurred by Seller or the Seller Related Parties as a result of
such designation.
(e)
Subject to
Section 2.5(f) below, if, pursuant to
Section 2.5 , the prorations owed Seller exceed the
prorations owed Purchaser, then Purchaser shall, at the Closing,
pay to Seller the amount by which the prorations owed Seller exceed
the prorations owed Purchaser. Subject to
Section 2.5(f) below, if, pursuant to
Section 2.5 , the prorations owed Purchaser exceed the
prorations owed Seller, then Seller shall, at the Closing, provide
Purchaser a credit in the amount by which the prorations owed
Purchaser exceed the prorations owed Seller.
(f)
After Closing, if
either party (the “ Requesting Party ”) provides
evidence reasonably satisfactory to the other party (the “
Other Party ”) that an item should have been delivered
by the Other Party to the Requesting Party at Closing, the Other
Party agrees to reasonably cooperate with the Requesting Party to
cause such delivery to occur. The provisions of this
Section 2.4(f) shall survive Closing.
Section 2.5
Prorations
.
(a)
The items
described below with respect to each Property shall be apportioned
between Seller and Purchaser and shall be prorated on a per diem
basis as of 11:59 p.m. of the day before the Closing
Date:
15
(i)
annual rents,
other fixed charges (including prepaid rents), unfixed charges and
additional rents (including, without limitation, on account of
taxes, porter’s wage, electricity and percentage rent), in
each case paid under the Leases (it being agreed that any such
amounts not paid prior to the Closing Date shall not be apportioned
but shall be dealt with in accordance with the provisions of
Section 2.6 );
(ii)
amounts payable
under the Contracts to be assigned to Purchaser;
(iii)
real estate
taxes, vault taxes, water charges and sewer rents, if any, on the
basis of the fiscal year for which assessed, to the extent not paid
or payable directly to such applicable government authority or
utility by any Tenant under its Lease;
(iv)
fuel, electric
and other utility costs, to the extent not paid or payable directly
to such applicable government authority or utility by any Tenant
under its Lease;
(v)
intentionally
omitted;
(vi)
assessments, if
any, to the extent not paid or payable directly by any Tenant under
its Lease, provided, however, that any remaining installments with
respect to any assessment or improvement lien for water, sewer or
other utilities or public improvements shall be paid by Seller or
the Applicable Party if due and payable prior to the Closing and by
Purchaser if due and payable subsequent to the Closing;
(vii)
dues to owner and
marketing organizations;
(viii)
amounts payable
under reciprocal operating agreements, easements and similar
instruments;
(ix)
other items
customarily apportioned in sales or transfers of real property in
the jurisdiction in which the applicable Property is located;
and
(x)
Leasing
commissions, tenant improvements and capital improvements shall be
apportioned in accordance with Paragraph 5 of the Letter
Agreement. Rent abatements, free rent and rent concessions,
if any, payable under or in respect of any and all Leases entered
into at any time prior to the Closing shall be and are hereby
expressly assumed by, Purchaser. All leasing brokerage
commissions (or unpaid installments thereof) due and payable under
or in respect of any renewal, extension or expansion option
provided for in any Lease shall be allocated to, and are hereby
expressly assumed by, Purchaser. After Closing the parties
agree to reconcile the amounts of all leasing brokerage
commissions, all tenant improvement allowances, all tenant
improvement work, all development costs and all capital
improvements undertaken with the respect to the Assets after the
date hereof and agree to reapportion any amounts owed between the
parties pursuant to this Section or pursuant to the Letter
Agreement. If any amounts are payable hereunder or under the
Letter Agreement after Closing, Seller and Purchaser agree that the
party that owes such amount shall remit the same promptly after a
final determination has been made. If the parties can not
agree on
16
a final
determination the parties agree that the dispute shall be submitted
to an Expedited Arbitration Proceeding.
(xi)
Intentionally
omitted
(xii)
Purchaser shall
receive a credit at Closing equal to the outstanding principal
balance of any Assumed Indebtedness encumbering the Assets actually
purchased by Purchaser or a designee, but not for any capitalized
interest, default interest, sums and other charges due and
owing. Accrued and unpaid interest on such Assumed
Indebtedness in respect of the month of Closing shall be
apportioned and prorated on a per diem basis as required pursuant
to clause (a) above. The Applicable Parties shall
receive a credit for the amount in any reserves under such Assumed
Indebtedness and Purchaser shall have all right, title and interest
to such reserves.
(b)
If the Closing
Date shall occur before the tax rate or assessment is fixed for the
tax year in which the Closing Date occurs, the apportionment of
taxes shall be upon the basis of the tax rate or assessment for the
next preceding year applied to the latest assessed valuation and
Seller and Purchaser shall readjust real estate taxes promptly upon
the fixing of the tax rate or assessment for the tax year in which
the Closing Date occurs.
(c)
If there is a
water or other utility meter(s) on a Property, Seller shall request
that the Applicable Party to furnish a reading to a date not more
than thirty (30) days prior to the Closing Date and the unfixed
meter charge and the unfixed sewer rent, if any, based thereon for
the intervening time shall be apportioned on the basis of such last
reading. If Seller or the Applicable Party cannot readily obtain
such a current reading, the apportionment shall be based upon the
most recent reading.
(d)
At the Closing,
if, Purchaser elects to take an assignment of any utility deposit
made by Seller or the Applicable Party with any utility company,
then Purchaser shall reimburse Seller for such utility deposit and
Seller shall or shall cause the Applicable Party to execute such
documents as may be required to assign its rights in such deposits
to Purchaser and provide such utility companies with notice of such
assignment, if necessary (in each case in form and substance
reasonably satisfactory to Purchaser). Any utility deposits
not so assigned to Purchaser shall be refunded to
Seller.
(e)
Seller and
Purchaser shall prepare an agreement (the “ Proration
Agreement ”) setting forth on a Property-by-Property
basis in reasonable detail the prorations described in this
Section 2.5 and stating the net amount owed to Seller
or Purchaser, as the case may be, on account thereof. Seller
and Purchaser shall execute and deliver the Proration Agreement as
provided in Section 2.4 .
(f)
If any of the
items described above cannot be apportioned at the Closing because
of the unavailability of the amounts which are to be apportioned or
otherwise, or are incorrectly apportioned at the Closing, or
subsequent thereto, such items shall be apportioned or
reapportioned, as the case may be, as soon as practicable after the
Closing Date or the date such error is discovered, as
applicable.
17
(g)
With respect to
Sold Equity Interests, the parties shall make the adjustments in
this Section 2.5 only with respect to the Applicable
Party’s percentage ownership interest in the applicable
subsidiary.
(h)
The provisions of
this Section 2.5 shall survive the Closing.
Section 2.6
Post Closing
Collections .
(a)
If, at the
Closing, any fixed rents (including electricity, if applicable)
additional rents or other amounts payable by Tenants to be
apportioned pursuant to this Agreement are unpaid, Purchaser agrees
that the first moneys received by it from such Tenant shall be
received and held by Purchaser in trust, and shall be disbursed as
follows:
(i)
First, on account
of fixed rents (including electricity, if applicable) additional
rents or other amounts payable by Tenants to be apportioned
pursuant to this Agreement in respect of the month in which the
Closing occurs (the “ Current Month ”), to be
apportioned between Seller and Purchaser, as provided in
Section 2.5 ;
(ii)
Next, to
Purchaser in an amount equal to all fixed rents (including
electricity, if applicable) additional rents or other amounts
payable by Tenants to be apportioned pursuant to this Agreement,
owing by such Tenant to Purchaser in respect of all periods after
the Current Month;
(iii)
Next, to Seller,
in an amount equal to all fixed rents (including electricity, if
applicable) additional rents or other amounts payable by Tenants to
be apportioned pursuant to this Agreement owing by such Tenant to
Applicable Party in respect of all periods prior to the Current
Month; and
(iv)
the balance, if
any, to Purchaser.
Each party agrees to remit
reasonably promptly to the other the amount of such rents,
additional rents or any other amounts to be apportioned pursuant to
this Agreement to which such party is so entitled and to account to
the other party monthly in respect of same. Seller shall have
the right from time to time for a period of three hundred
sixty-five (365) days following the Closing, on reasonable prior
notice to Purchaser, to review Purchaser’s rental records
with respect to the Assets to ascertain the accuracy of such
accountings.
(b)
If the Closing
shall occur prior to the time when any rental payments for fuel
pass-alongs, so-called escalation rent or charges based upon real
estate taxes, operating expenses, labor costs, cost of living or
consumer price increases, a percentage of sales or like items
(collectively, “ Overage Rent ”) are payable for
any period which includes the period prior to the Closing, then
such Overage Rent for the applicable accounting period in which the
Closing occurs shall be apportioned subsequent to the
Closing. Purchaser agrees that it will receive in trust and
pay over to Seller, within five (5) days after
Purchaser’s receipt thereof, a pro-rated amount of such
Overage Rent paid subsequent to the Closing by such Tenant based
upon the portion of such accounting period which occurs prior to
the Closing (to the extent not theretofore collected by the
Applicable Party on account of such Overage Rent prior to the
Closing), and shall account to Seller in respect of the same.
If, prior to the Closing, the Applicable Party shall
18
collect any sums
on account of Overage Rent or fixed rent for a year or other
period, or any portion of such year or other period, beginning
prior but ending subsequent to the Closing, such sums shall be
apportioned at the Closing as of the date of the Closing. If,
subsequent to the Closing, the Applicable Party shall collect any
sums on account of Overage Rent or fixed rent for a year or other
period, or any portion of such year or other period, beginning
prior to but ending subsequent to the Closing, such sums shall be
apportioned subsequent to the Closing. The Applicable Party
shall receive in trust and pay over to Purchaser, within five
(5) days after the Applicable Party’s receipt thereof, a
pro-rated amount of such Overage Rent received by such Applicable
Party subsequent to the Closing from such Tenant based upon the
portion of such accounting period which occurs subsequent to the
Closing.
(c)
Intentionally
Omitted.
(d)
The provisions of
this Section 2.6 shall survive the Closing.
Section 2.7
Transfer and Recordation Taxes;
Responsibility for Recording . At the Closing, Purchaser shall pay any
and all transfer taxes, recording charges and other similar costs
and expenses payable in connection with the transactions
contemplated hereunder. Seller and Purchaser shall execute
and deliver all returns, questionnaires, and any necessary
supporting documents, instruments and affidavits, in form and
substance reasonably satisfactory to each party, required in
connection with any of the aforesaid taxes. The provisions of
this Section 2.7 shall survive the Closing.
Section 2.8
Closing Expenses
. Except as otherwise
expressly provided herein, Seller (or the Applicable Party, as
applicable) and Purchaser each shall be responsible for the payment
of their respective closing expenses and expenses in negotiating
and carrying out their respective obligations under this
Agreement. Purchaser shall also pay (i) all costs and
expenses of Purchaser’s Due Diligence, (ii) all of
Purchaser’s title charges and survey costs, including the
premiums on Purchaser’s title policies, if any, (iii) without
in any way diminishing the effect of Section 11.14 hereof, any and
all costs associated with any financing Purchaser may obtain to
consummate the acquisition of the Assets, (iv) any and all exit
fees, yield maintenance premiums, default interest, prepayment
premiums, defeasance costs or other fees (including attorneys fees)
in connection with the Existing Debt, (v) all payments required to
be paid under all tax protection agreements or other similar
agreements which may be triggered as a result of the transfer of
any of the Assets and (vi) any additional transfer taxes or other
expenses incurred by Seller or the Applicable Parties as a result
of a change at Purchaser’s request in the order of the
Closing of the Assets and the Merger Closing. The provisions
of this Section 2.8 shall survive Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
Section 3.1
Representations and Warranties by
Purchaser .
Purchaser makes the following representations and warranties, each
of which is true and correct as of the date hereof and as of the
Closing Date:
19
(a)
Purchaser is a
limited liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware. This
Agreement has been duly authorized, executed and delivered by
Purchaser and constitutes the valid and legally binding obligation
of Purchaser, enforceable against Purchaser in accordance with its
terms. This Agreement and the transactions contemplated
herein do not contravene any of the provisions of the Certificate
of Formation or Operating Agreement of Purchaser.
(b)
The execution and
delivery of this Agreement and all related documents and the
performance of its obligations hereunder and thereunder by
Purchaser do not conflict with any provision of any law or
regulation to which Purchaser is subject, or conflict with or
result in a breach of or constitute a default under any of the
terms, conditions or provisions of any agreement or instrument to
which Purchaser is a party or by which Purchaser is bound or any
order or decree applicable to Purchaser, or result in the creation
or imposition of any lien on any of Purchaser’s respective
assets or property, which would adversely affect the ability of
Purchaser to perform its obligations under this Agreement.
Purchaser has obtained all consents, approvals, authorizations or
orders of any court or governmental agency or body, if any,
required for the execution, delivery and performance by Purchaser
of this Agreement.
(c)
Purchaser has not
filed any petition seeking or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief relating to Purchaser or any of its property under
any law relating to bankruptcy or insolvency, nor has any such
petition been filed against Purchaser. No general assignment
of Purchaser’s property has been made for the benefit of
creditors, and no receiver, master, liquidator or trustee has been
appointed for Purchaser or any of its property. Purchaser is
not insolvent and the consummation of the transactions contemplated
by this Agreement shall not render Purchaser insolvent.
(d)
The provisions of
this Section 3.1 shall survive the Closing or the
termination of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF SELLER
Section 4.1
Representations and Warranties by
Seller . Seller
makes the following representations and warranties, each of which
is true and correct as of the date hereof and as of the Closing
Date:
(a)
Seller is a
corporation, duly organized, validly existing and in good standing
under the laws of the State of Maryland. This Agreement has
been duly authorized, executed and delivered by Seller and
constitutes the valid and legally binding obligation of Seller,
enforceable against Seller in accordance with its terms. This
Agreement and the transactions contemplated herein do not
contravene any of the respective provisions of the Certificates of
Incorporation or By-Laws of Seller.
(b)
The execution and
delivery of this Agreement and all related documents and the
performance of its obligations hereunder and thereunder by Seller
do not conflict with
20
any provision of
any law or regulation to which Seller is subject, or conflict with
or result in a breach of or constitute a default under any of the
terms, conditions or provisions of any material agreement or
instrument to which Seller is a party or by which Seller is bound
or any order or decree applicable to Seller, or result in the
creation or imposition of any lien on any of its assets or property
which would adversely affect the ability of Seller to perform its
obligations under this Agreement. Seller has obtained all
consents, approvals, authorizations or orders of any court,
governmental agency or body and of all Third Parties, if any,
required for the execution, delivery and performance by Seller of
this Agreement and the consummation of the transactions
contemplated hereby.
(c)
Seller has not
filed any petition seeking or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief relating to Seller or any of its property under any
law relating to bankruptcy or insolvency, nor has any such petition
been filed against Seller. No general assignment of
Seller’s property has been made for the benefit of creditors,
and no receiver, master, liquidator or trustee has been appointed
for Seller or any material portion of its property. Seller is not
insolvent and the consummation of the transactions contemplated by
this Agreement shall not render Seller insolvent.
(d)
Seller is not a
“foreign person” as defined in Section 1445 of the
Code and the regulations promulgated thereunder.
(e)
The provisions of
this Section 4.1 shall survive the Closing or other
termination of this Agreement.
Section 4.2
Purchaser hereby acknowledges that
none of the Seller Related Parties nor any agent nor any
representative nor any purported agent or representative of any of
the Seller Related Parties have made, and none of the Seller
Related Parties are liable for or bound in any manner by, any
express or implied warranties, guaranties, promises, statements,
inducements, representations or information pertaining to the
Assets or any part thereof except as set forth in this
Agreement. Without limiting the generality of the foregoing,
Purchaser has not relied on any representations or warranties, the
Seller Related Parties have not made any representations or
warranties express or implied, as to (a) the current or future
real estate tax liability, assessment or valuation of the Assets,
(b) the potential qualification of the Assets for any and all
benefits conferred by Federal, state or municipal laws, whether for
subsidies, special real estate tax treatment, insurance, mortgages,
or any other benefits, whether similar or dissimilar to those
enumerated, (c) the compliance of the Assets, in their current
or any future state, with applicable zoning ordinances and the
ability to obtain a change in the zoning or a variance with respect
to the Assets’ non-compliance, if any, with said zoning
ordinances, (d) the availability of any financing for the
alteration, rehabilitation or operation of the Assets from any
source, including, without limitation, any state, city or Federal
government or any institutional lender (except as may be expressly
provided in the Seller Loan Commitment), (e) the current or
future use of the Assets, including, without limitation, the
Assets’ use for residential (including hotel, cooperative or
condominium use) or commercial purposes, (f) the present and
future condition and operating state of any and all machinery or
equipment on the Assets and the present or future stru
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