EXHIBIT 2.5 ASSET PURCHASE AGREEMENT

 

 

TABLE OF CONTENTS

 

			Page
ARTICLES
ARTICLE I DEFINITIONS			1
ARTICLE II SALE AND PURCHASE OF PROPERTIES			9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER			20
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER			21
ARTICLE V COVENANTS; OPERATING COVENANTS; PROPERTY MANAGEMENT			22
ARTICLE VI CONDITIONS PRECEDENT			23
ARTICLE VII ADDITIONAL AGREEMENTS			25
ARTICLE VIII DEFAULT			26
ARTICLE IX AS IS			27
ARTICLE X NOTICES			29
ARTICLE XI MISCELLANEOUS PROVISIONS			30
EXHIBITS
Exhibit A	Loan Assets
Exhibit B	Other Contracts
Exhibit C	Intentionally Omitted
Exhibit D	Sold Land
Exhibit E	Sold Subsidiaries
Exhibit F	Other Sold Assets
Exhibit G	Escrow Wire Instructions
Exhibit H	Intentionally Omitted
Exhibit I	Intentionally Omitted
Exhibit J	Intentionally Omitted
Exhibit K	Intentionally Omitted
Exhibit L	Intentionally Omitted
Exhibit M	Form of Assignment and Assumption of Interest
Exhibit N	Intentionally Omitted
Exhibit O	Seller Loan Commitment
Exhibit P	Intentionally Omitted
Exhibit Q	Intellectual Property

 

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Exhibit R	Letter of Credit
Exhibit S	Intentionally Omitted
Exhibit T	Intentionally Omitted
Exhibit U	Intentionally Omitted
Exhibit V	Assumed Debt Indemnity Agreement
Exhibit W	Form of Allonge
Exhibit X	Form of Assignment of Loan Documents
SCHEDULES
Schedule 1

 

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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.

 

“ 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.

 

“ 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) .

 

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“ 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 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

 

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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.

 

“ Frontline Assets ” means all debt from any Applicable Party to Frontline Capital Group, the Ownership Interests of ROP in Reckson Asset Partners LLC, and any and all other claims which any Applicable Party has as a creditor of Frontline Capital Group or any of its subsidiaries

 

“ General Intangibles ” means, with respect to a parcel of land, all trade names, trademarks, logos, copyrights and other intangible personal property owned by RAR or its Affiliates relating to such parcel of land or the Improvements or Personal Property with respect to such parcel of land other than the name, “Reckson”, which shall be licensed on a non-exclusive basis pursuant to Section 11.15 .

 

“ Governmental Authority ” means any agency, bureau, department or official of any federal, state or local governments or public authorities or any political subdivision thereof.

 

“ Ground Leasehold Estate ” means, with respect to a parcel of land, the ground leasehold estate in such land, including, without limitation, all of the land in respect of such Property and any interest of the Applicable Party in any adjoining parcel or parcels that may be needed for such parcel to be in compliance with applicable Law or applicable Leases.

 

“ Hazardous Materials ” has the meaning given that term in Section 9.4 .

 

“ Improvements ” means, with respect to a parcel of land, all buildings, structures and improvements on such parcel of land, including all building systems and equipment relating thereto.

 

“ Land ” means all of the parcels of Sold Land and Sold Subsidiary Land.

 

“ Law ” means any law, rule, regulation, order, decree, statute, ordinance, or other legal requirement passed, imposed, adopted, issued or promulgated by any Governmental Authority.

 

“ LC Deposit ” has the meaning given that term in Section 2.3(a) .

 

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“ 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, including, without limitation, the Frontline Assets.

 

“ 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 .

 

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“ 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.

 

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(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) .

 

 “ ROP ” means Reckson Operating Partnership, L.P., a Delaware limited partnership.

 

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“ Seller ” has the meaning given that term in the first paragraph of this Agreement.

 

“ Seller Financing ” has the meaning given that term in Section 11.14.

 

“ Seller Loan Commitment ” has the meaning given such term in Section 11.14.

 

“ Seller Related Parties ” means Seller, RAR, ROP, the Applicable Parties, any Affiliate of Seller and their respective direct or indirect members, partners, stockholders, officers, directors, employees and agents.

 

“ Sold Equity Interests ” has the meaning given that term in Section 2.2(c).

 

“ Sold Land ” means all of the parcels of land described in Exhibit D and, when used with reference to a particular Sold Property, means the parcel of land relating to such Sold Property.

 

“ Sold Properties ” has the meaning given that term in Section 2.2(b).

 

“ Sold Subsidiaries ”  has the meaning given that term in Section 2.2(c).

 

“ Sold Subsidiary Land ” means all of the parcels of land owned by the Sold Subsidiaries.

 

“ Sold Subsidiary Properties ” has the meaning given that term in Section 2.2(d).

 

“ Systems ” means (i) a non-exclusive license in and to the systems, software and software licenses owned by the Applicable Party and necessary to operate any of the Properties if such systems, software and software licenses are used for the operation of RAR’s business with respect to anything other than the Assets as conducted on the date hereof and (ii) if such systems, software and software licenses are not used for the operation of RAR’s business with respect to anything other than the Assets as conducted on the date hereof, all right, title and interest of the Applicable Party in such systems, software and software licenses owned by an Applicable Party and necessary to operate any of the Properties.

 

“ Taking ” has the meaning given that term in Section 7.1(b) .

 

“ Tax Proceedings ” has the meaning given that term in Section 7.2 .

 

“ Tenant ” has the meaning given that term in Section 2.4(a) .

 

“ Third Party ” means any Person other than Seller and its Affiliates.

 

“ 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.

 

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(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;

 

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(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 ” 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)                                     Intentionally Omitted

 

(g)                                  Intentionally Omitted

 

Section 2.3                                       Purchase Price . The purchase price (the “ Purchase Price ”) for the Assets is set forth in Column A of Schedule 1 attached hereto, subject to the adjustments and prorations herein, payable as set forth below. The parties agree that the value of the Personal Property is de minimis and no part of the Purchase Price is allocable thereto. The parties further agree that, except as otherwise may be required by applicable Law, the transactions contemplated by this Agreement will be reported for all tax purposes in a manner consistent with the terms of this Agreement, and that neither party (nor any of their Affiliates) will take any position inconsistent therewith.

 

(a)                                   Simultaneously with the execution of this Agreement by Purchaser, Purchaser is delivering an aggregate deposit in the amount set forth in Column B of Schedule 1 attached hereto by delivering (a) the amount set forth in Column C of Schedule 1 attached hereto (the “ Cash Deposit ”) to First American Title Insurance Company, as escrow agent (when acting in the capacity of escrow agent, the “ Escrow Holder ”) by wire transfer of immediately available federal funds (“ Wire Transfer Funds ”) to the account set forth on Exhibit G , (b) to Escrow Holder, a Letter of Credit in the amount set forth in Column D of Schedule 1 attached hereto (the “ Deposit A Letter of Credit ”) and (c) to Escrow Holder, a Letter of Credit in the amount set forth in Column E of Schedule 1 attached hereto (the “ Deposit B Letter of Credit ”), a portion of which equal to the amount set forth in Column F of Schedule 1 attached hereto (the “ Deposit B LC Deposit ” and, together with the Deposit A Letter of Credit, the “ LC Deposit ”; the LC Deposit together with the Cash Deposit, the “ Deposit ”) shall be allocable to the Deposit under this Agreement;

 

(b)                                  Upon receipt by Escrow Holder of the Cash Deposit, Escrow Holder shall cause the same to be deposited into an interest bearing account selected by Escrow Holder mutually agreeable to Purchaser and Seller (it being agreed that Escrow Holder shall not be liable for the amount of interest which accrues thereon) in accordance with the terms of that certain Escrow Agreement of even date herewith between Seller, Purchaser and Escrow Holder. If the Closing shall occur, the interest on the Cash Deposit, if any, shall be paid to Purchaser, and, if the Closing shall not occur and this Agreement shall be terminated, then the interest earned on the Cash Deposit shall be paid to the party entitled to receive the Deposit as provided in this Agreement. The party receiving such interest shall pay any income taxes thereon.

 

(c)                                   Purchaser may replace the Cash Deposit with a Letter of Credit in the amount of the Cash Deposit (the “ Replacement LC ”). In such event the Cash Deposit shall be returned to Purchaser upon receipt of the Replacement LC by Escrow Holder. Purchaser may replace the LC Deposit with cash at any time prior to Closing by sending Escrow Holder Wire Transfer Funds in an amount equal to the amount of the Deposit A Letter of Credit and the Deposit B Letter of Credit (the “ Additional Cash Deposit ”). Upon receipt of the Additional Cash Deposit, Escrow Holder shall return the Deposit A Letter of Credit and the Deposit B Letter of Credit to Purchaser. The portion of the Additional Cash Deposit equal to the LC Deposit (the “ 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.

 

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(d)                                  At the Closing, the Cash Deposit and the LC Replacement Funds, if any, shall be paid to Seller and Purchaser shall deliver the balance of the Purchase Price (i.e., the Purchase Price less the Cash Deposit and the LC Replacement Funds, if any) to RAR by Wire Transfer Funds as directed by Seller, as adjusted pursuant to Section 2.5 hereof. As part of the Purchase Price, Purchaser will deliver to Seller, Wire Transferred Funds for the amount of the LC Deposit and any Replacement LC, or at Purchaser’s direction the Deposit A Letter of Credit, the Deposit B Letter of Credit (in an amount equal to the Deposit B LC Deposit) and the Replacement LC shall be drawn upon by Escrow Holder, and the proceeds shall be disbursed in the same manner as the Cash Deposit and credited against the Purchase Price; provided that Purchaser shall only receive a credit against the Purchase Price hereunder for that portion of the Deposit B Letter of Credit equal to the Deposit B LC Deposit. Upon Escrow Holder’s receipt of Wire Transferred Funds equal to sum of the LC Deposit, Escrow Holder shall return the Deposit A Letter of Credit to Purchaser.

 

(e)                                   Upon a Purchaser Default Seller may make a written demand upon Escrow Holder for payment of the proceeds of the LC Deposit and, Escrow Holder shall be entitled to and shall draw upon the same and dispose of the proceeds thereof in the same manner as it would dispose of the Deposit under this Agreement as required pursuant to the terms of Section 8.1 of this Agreement.

 

Section 2.4                                       Closing Deliveries . On the Closing Date:

 

(a)                                   Seller shall, or shall direct the Applicable Party to:

 

(i)                                      (A) for each Sold Property in which the Applicable Party owns the Fee Estate, execute and deliver to Purchaser a quitclaim deed, in the form attached hereto as Exhibit H (the “ Deed ”), and (b) for each Sold Property in which the Applicable Party owns the Ground Lease Estate, execute and deliver to Purchaser an assignment of Lease in the form attached hereto as Exhibit I (the “ Assignment and Assumption of Ground Lease ”) in each case conveying the Applicable Party’s interest in the Properties subject to the Permitted Exceptions, it being understood and agreed, that notwithstanding anything contained herein to the contrary, Purchaser shall have no right to object to any title matter, other than a violation of Section 5.4 hereof, affecting the Properties, including, without limitation, the fact that a Property may not have a certificate of occupancy or that the state or use of a Property may vary from that set forth in any certificate of occupancy that may exist;

 

(ii)                                   for each Sold Property, execute and deliver to Purchaser a bill of sale covering the Personal Property in the form attached hereto as Exhibit J ;

 

(iii)                                for each Sold Property, execute and deliver to Purchaser an assignment (the “ Assignment and Assumption of Leases ”) of all Leases and security deposits which shall be in recordable form and in the form attached hereto as Exhibit K ;

 

(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 ;

 

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(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

 

(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

 

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certification that a default has occurred under the applicable lease entitling the landlord thereunder to apply the security deposit, Seller shall cause the Applicable Party to draw upon such letter of credit and deliver the proceeds thereof to Purchaser. Purchaser hereby indemnifies and holds the Seller Related Parties harmless against all Claims, demands, costs, expenses, liabilities, judgments and suits (including reasonable attorneys’ fees and disbursements) which the Seller Related Parties may incur as a result of any such drawing upon the letter of credit and such indemnification shall survive Closing;

 

(ii)                                   with respect to each Property, deliver to Purchaser or Purchaser’s property manager signed originals or, if unavailable, copies, of all Leases;

 

(iii)                                with respect to each Property or Other Sold Asset that includes a Contract, deliver to Purchaser or Purchaser’s property manager signed originals or, if unavailable, copies, of all Contracts, including the Contracts constituting the Frontline Assets, any other 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;

 

(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;

 

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(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 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.

 

(g)                                  At or after Closing, the parties will reasonably cooperate, at Purchaser’s expense, to arrange for the execution and delivery of any other documents or items in addition to the Assignment and Assumption of Interest, the Other Sold Asset Assignment, the Allonge and the Assignment of Loan Documents reasonably necessary to effectuate or facilitate the assignment of the Loan Assets without representation, warranty or recourse to Seller, the Applicable Party or any Seller Related Party; provided, however, that the delivery of such

 

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documents or items shall in no way be deemed a condition precedent to closing and the failure of which shall not be a default hereunder.

 

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;

 

(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

 

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(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 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

 

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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 ;

 

(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

 

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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)                                  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

 

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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, 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.

 

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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 as