Exhibit 2.6
[New Jersey 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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8
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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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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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23
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ARTICLE VII ADDITIONAL AGREEMENTS
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24
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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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30
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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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Form of Quitclaim Deed
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Exhibit I
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Intentionally Omitted
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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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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 ”).
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.
2
“ 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 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
3
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.
“ 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 Clearing House Association and which bank is otherwise
reasonably acceptable to Seller, the
4
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.
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(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)
.
“ ROFO Properties
” has the meaning given that term in Section 11.19
.
“ 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 lots in New Jersey 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.
7
“ 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.
(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
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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
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
(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 own
the Sold Subsidiary Properties set forth on Exhibit E
.
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(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
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 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
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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 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
11
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 less the Delayed Purchase Price (as defined below)
(i.e., the Purchase Price less the Delayed Purchase Price, 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 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)
No later than the
third anniversary of the Closing Date, Purchaser shall deliver the
balance of the Purchase Price in the amount of $5,000,000.00 (the
“ Delayed Purchase Price ”) to RAR or Seller by
Wire Transfer Funds as directed by Seller without any adjustments
or set offs. Purchaser’s obligation to pay the Delayed
Purchase Price shall be secured by a non-recourse pledge made by
Scott Rechler, Jason Barnett and Michael Maturo of their direct or
indirect ownership interest in the Assets (the “
Pledge ”) and guaranteed on an unsecured basis by the
entity or entities owned by Scott Rechler, Jason Barnett and
Michael Maturo that indirectly owns the interests of Scott Rechler,
Jason Barnett and Michael Maturo in the Assets and the assets being
sold pursuant to the Other Contracts (the “
Parent Entities
”), which
guaranty shall be subordinate to any financing obtained by the
Parent Entities or any subsidiary thereof. Notwithstanding the
foregoing, Purchaser, at its option, may pay an additional
$3,700,000.00 at Closing in lieu of the Delayed Purchase Price. The
Pledge shall be in a form reasonably acceptable to Seller and shall
be delivered by Purchaser to Seller prior to Closing. The Pledge
shall permit financing senior to the Pledge up to an amount equal
to eighty (80%) of the Purchase Price.
(f)
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)
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
12
Exhibit
H (the
“ Deed ”) 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, 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.
13
(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 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;
(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;
14
(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)
[intentionally
omitted]
(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
15
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)
[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
16
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)
[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
17
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 ;
(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
18
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.
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
19
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, 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:
20
(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 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
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