Exhibit 2.3
[Long Island Portfolio]
ASSET PURCHASE AGREEMENT
between
SL GREEN REALTY CORP.
as seller
and
NEW VENTURE MRE 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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20
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
SELLER
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21
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ARTICLE V COVENANTS; OPERATING COVENANTS;
PROPERTY MANAGEMENT
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23
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ARTICLE VI CONDITIONS PRECEDENT
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23
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ARTICLE VII ADDITIONAL AGREEMENTS
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25
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ARTICLE VIII DEFAULT
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26
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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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31
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Exhibit A
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Loan Assets
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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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Form of Quitclaim Deed
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Exhibit I
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Form of Assignment and Assumption of Ground
Lease
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Exhibit J
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Form of Bill of Sale
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Exhibit K
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Form of Assignment and Assumption of
Leases
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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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Form of Tenant Notification Letter
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Exhibit O
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Intentionally Omitted
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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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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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ROFO Properties
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i
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Exhibit U
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Option Agreement Properties
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Exhibit V
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Form of Assumed Debt Indemnity
Agreement
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Exhibit W
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Form of Allonge
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Exhibit X
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Form of Assignment of Loan Documents
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Schedule 1
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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 NEW
VENTURE MRE LLC, a Delaware limited liability company, having an
address at 625 Reckson Plaza, Uniondale, New York 11556 (“
Purchaser ”).
WITNESSETH
:
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:
“ 810 Seventh Property
” has the meaning given that term in Section 11.21
.
“ 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.
“ Allonge ” has
the meaning given that term in Section 2.4(a) .
“ 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) .
“ Assignment of Loan
Documents ” 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.
2
“ 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.
“ 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
3
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 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 the ground
sub-leasehold estate with respect to the 51 Charles Lindbergh Blvd
property), 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)
.
4
“ 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 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.
“ Loan Assets ”
means the loan or other credit agreements listed on Exhibit
A pursuant to which RAR or an Affiliate is the lender, all
notes issued thereunder, all reserves, all related documents and
all filings made in connection therewith.
“ 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 .
5
“ 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.
(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.
6
(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.
“ 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)
.
“ ROFO Properties
” has the meaning given that term in Section 11.19
.
7
“ 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 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).
“ Sold Land ”
means all of the parcels of land described in Exhibit D and
all other lots in Long Island owned by the Applicable Party 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 an 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.
8
(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.
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;
9
(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
(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 ” that are 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 (A) each of the assets set forth on Exhibit F and (B)
the Loan Assets.
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(f)
During the Executory Period the parties will negotiate in good
faith so that Personal Property located in RAR’s offices in
Long Island and New Jersey and 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 without representation, warranty or recourse to
Seller, or the Applicable Party provided any sales tax due in
connection therewith is paid by Purchaser.
(g)
At Purchaser’s request, Seller agrees to request that RAR
cause the transfer of any one or more of the Sold Properties
through a transfer in the Ownership Interests of the Applicable
Party that owns such Sold Property if such Property is owned by a
special purpose entity, or, if such Sold Property is not owned by a
special purpose entity, to convey such Sold Property to a special
purpose entity and convey to Purchaser the Ownership Interests of
such special purpose entity, provided, however, that Purchaser
shall pay for any transfer taxes and any and all other costs and
expenses incurred in connection with the formation and existence of
any special purpose entities and the transfer of such Sold
Properties to such special purpose entities and that Scott Rechler,
Jason Barnett and Michael Maturo shall have executed a guaranty of
such payment obligations and indemnify and hold harmless the Seller
Related Parties from and against any and all Claims, liabilities,
losses, damages, costs or expenses as a result of the formation and
existence of any such special purpose entities and the transfer of
such Sold Properties to such special purpose entities. Any such
special purpose entities transferred pursuant to this Section
2.2(g) shall be deemed Sold Subsidiaries.
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
11
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 “ 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 Leasehold Estate (including the
ground sub-leasehold estate with respect to the 51
12
Charles
Lindbergh Blvd property), 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
;
(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 which is not a Loan 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;
(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; and
13
(xii)
for each Loan Asset, execute and deliver to Purchaser (y) an
allonge (the “ Allonge ”) in the form attached
hereto as Exhibit W and (z) an assignment of loan documents
(the “ Assignment of Loan Documents ”) in the
form attached hereto as Exhibit X .
(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 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 the
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, including the Contracts constituting the Loan Assets,
and 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;
14
(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)
with respect to each Loan Asset, deliver to Purchaser originals or,
if unavailable, copies, of all notes, related documents, filings
and title policies;
(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;
(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;
(viii)
execute and deliver to Seller the Assumed Debt Indemnity Agreement,
if necessary; and
(ix)
execute and deliver to Seller the Assignment of Loan
Documents
(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
15
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:
(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)
payments of interest on any Loan Asset actually made for the month
in which the Closing occurs as well as payments of accrued and
unpaid interest and other sums and charges due and payable under
the Loan Assets in respect to periods prior to Closing for which
the Applicable Party shall receive a credit at Closing. Reserve
accounts and prepaid interest for periods subsequent to the Closing
actually paid, if any, in connection with each Loan Asset
sold shall be assigned by the Applicable Party to Purchaser at
Closing without representation, warranty or recourse;
16
(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
a final determination the parties agree that the dispute shall be
submitted to an Expedited Arbitration Proceeding.
(xi)
Purchaser shall receive a credit at Closing equal to the amount of
principal, if any, repaid in reduction of the outstanding principal
balance of any Loan Asset between the date hereof and
Closing.
(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
17
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 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.
(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 ;
18
(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 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)
Intentionally Omitted.
(e)
The provisions of this Section 2.6 shall survive the
Closing.
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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:
(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,
20
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 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
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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 structural and
physical condition of any building or its suitability for
rehabilitation or renovation, (g) the ownership or state of title
of any personal property on the Assets, (h) the presence or
absence of any Laws and Regulations or any Violations, (i) the
compliance of the Assets or the Leases (or the fixed rents and
additional rents thereunder) with any rent control or similar law
or regulation, (j) the ability to relocate any Tenant or to
terminate any Lease, (k) the layout, leases, rents, income,
expenses, operation, agreements, licenses, easements, instruments,
documents or Contracts of or in any way affecting the Assets and
(l) the truth or accuracy of any of the information contained in
the exhibits to this Agreement. Further, none of the Seller Related
Parties are liable for or bound by (and Purchaser has not relied
upon) any verbal or written statements, representations or any
other information respecting the Assets furnished by any of the
Seller Related Parties or any broker, employee, agent, consultant
or other person representing or purportedly representing any of the
Seller Related Parties. The provisions of this
Section 4.2 shall survive the Closing.
Section
4.3
None of the Seller Related Parties have made any representations
that the Applicable Parties own the Assets in the manner set forth
on the exhibits hereto; and to the extent that an Applicable Party
owns an Asset in a manner other than as set forth in the
22
appropriate exhibit, the exhibits will be deemed
changed to correct such error and the Closing shall proceed
hereunder in the manner appropriate for such type of Asset whether
it be a fee, leasehold or ownership interest in an entity and
Purchaser shall not be afforded an adjustment to the Purchase Price
or any ability to terminate this Agreement as a result of such
error. The provisions of this Section 4.3 shall survive
Closing.
ARTICLE V
COVENANTS; OPERATING
COVENANTS; PROPERTY MANAGEMENT
Section
5.1
[INTENTIONALLY OMITTED.]
Section
5.2
[INTENTIONALLY OMITTED.]
Section
5.3
Estoppels . If Seller has the right pursuant to the Merger
Agreement, between the date of this Agreement and the Closing, to
the extent requested by Purchaser, Seller shall req
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