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Exhibit 10.97 [Execution Copy] ONE MADISON AVENUE PURCHASE AND SALE AGREEMENT BETWEEN METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, AS SELLER, AND 1 MADISON VENTURE LLC, a Delaware limited liability company, AND COLUMN FINANCIAL, INC. a Delaware corporation, COLLECTIVELY AS PURCHASER

Life Insurance Split Dollar Agreement

Exhibit 10.97 [Execution Copy] ONE MADISON AVENUE PURCHASE AND SALE AGREEMENT BETWEEN METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, AS SELLER, AND 1 MADISON VENTURE LLC, a Delaware limited liability company, AND COLUMN FINANCIAL, INC. a Delaware corporation, COLLECTIVELY AS PURCHASER | Document Parties: METLIFE INC | JP Morgan Chase Bank, NA | MADISON VENTURE LLC | METROPOLITAN LIFE INSURANCE COMPANY | President and COLUMN FINANCIAL, INC You are currently viewing:
This Life Insurance Split Dollar Agreement involves

METLIFE INC | JP Morgan Chase Bank, NA | MADISON VENTURE LLC | METROPOLITAN LIFE INSURANCE COMPANY | President and COLUMN FINANCIAL, INC

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Title: Exhibit 10.97 [Execution Copy] ONE MADISON AVENUE PURCHASE AND SALE AGREEMENT BETWEEN METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, AS SELLER, AND 1 MADISON VENTURE LLC, a Delaware limited liability company, AND COLUMN FINANCIAL, INC. a Delaware corporation, COLLECTIVELY AS PURCHASER
Governing Law: New York     Date: 2/25/2011
Industry: Insurance (Life)     Law Firm: Greenberg Traurig     Sector: Financial

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Exhibit 10.97 [Execution Copy] ONE MADISON AVENUE PURCHASE AND SALE AGREEMENT BETWEEN METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, AS SELLER, AND 1 MADISON VENTURE LLC, a Delaware limited liability company, AND COLUMN FINANCIAL, INC. a Delaware corporation, COLLECTIVELY AS PURCHASER As of March 29, 2005 TABLE OF CONTENTS Page # ARTICLE I PURCHASE AND SALE Section 1.1 Agreement of Purchase and Sale .................... 1 Section 1.2 Property Defined .................................. 2 Section 1.3. Purchase Price .................................... 2 Section 1.4 Payment of Purchase Price ......................... 2 Section 1.5 Deposit ........................................... 3 Section 1.6 Escrow Agent ...................................... 3 ARTICLE II TITLE AND SURVEY Section 2.1 Title Inspection Period ........................... 4 Section 2.2 Pre-Closing ....................................... 4 Section 2.3 Permitted Exceptions .............................. 4 Section 2.4 Violations ........................................ 6 Section 2.5 Conveyance of Title ............................... 6 ARTICLE III REVIEW OF PROPERTY Section 3.1 Right of Inspection ............................... 6 Section 3.2 Property Reports .................................. 7 ARTICLE IV CLOSING Section 4.1 Time and Place .................................... 7 Section 4.2 Seller's Obligations at Closing ................... 8 Section 4.3 Purchaser's Obligations at Closing ................ 10 Section 4.4 Credits and Prorations ............................ 11 Section 4.5 Transaction Taxes and Closing Costs ............... 14 Section 4.6 Conditions Precedent to Obligations of Purchaser .. 15 Section 4.7 Conditions Precedent to Obligations of Seller ..... 15 ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS Section 5.1 Representations and Warranties of Seller .......... 16 Section 5.2 Knowledge Defined ................................. 17 Section 5.3 Modifications of Seller's Representations and Warranties ...................................... 17 Section 5.4 Survival of Seller's Representations and Warranties ...................................... 18 Section 5.5 Covenants of Seller ............................... 18 Section 5.6 Representations and Warranties of Purchaser ....... 19 Section 5.7 Survival of Purchaser's Representations and Warranties ...................................... 20 ARTICLE VI DEFAULT Section 6.1 Default by Purchaser .............................. 20 Section 6.2 Default by Seller ................................. 20 Section 6.3 Recoverable Damages ............................... 21 ARTICLE VII RISK OF LOSS Section 7.1 Minor Damage or Condemnation ...................... 21 Section 7.2 Major Damage ...................................... 21 Section 7.3 Definition of "Major" Loss or Damage .............. 21 Section 7.4 General Obligations Law ........................... 21 ARTICLE VIII COMMISSIONS Section 8.1 Brokerage Commissions ............................. 22 ARTICLE IX DISCLAIMERS AND WAIVERS Section 9.1 No Reliance on Documents .......................... 22 Section 9.2 AS-IS SALE; DISCLAIMERS ........................... 22 Section 9.3 Survival of Disclaimers ........................... 24 ARTICLE X MISCELLANEOUS Section 10.1 Confidentiality .................................. 24 Section 10.2 Public Disclosure ................................ 25 Section 10.3 Assignment ....................................... 25 Section 10.4 Notices .......................................... 26 Section 10.5 Modifications .................................... 27 Section 10.6 Entire Agreement ................................. 27 Section 10.7 Further Assurances ............................... 27 Section 10.8 Counterparts ..................................... 27 Section 10.9 Facsimile Signatures ............................. 27 Section 10.10 Severability ..................................... 27 Section 10.11 Applicable Law ................................... 28 Section 10.12 No Third-Party Beneficiary ....................... 28 Section 10.13 Captions ......................................... 28 Section 10.14 Construction ..................................... 28 Section 10.15 Recordation ...................................... 28 Section 10.16 Audit Rights and Tenant Reconciliation Statements ..................................... 28 Section 10.17 Termination of Agreement ......................... 29 Section 10.18 1031 Exchange .................................... 29 Section 10.19 One Madison Avenue Address ....................... 29 Section 10.20 MetLife Lease .................................... 29 Section 10.21 Industrial and Commercial Incentive Program ...... 30 Section 10.22 Transfer Fee ..................................... 30 Section 10.23 Joint and Several Liability ...................... 32 PURCHASE AND SALE AGREEMENT This PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of March 29, 2005 (the "Effective Date"), by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation ("Seller") and 1 MADISON VENTURE LLC, a Delaware limited liability company and COLUMN FINANCIAL, INC, a Delaware corporation (collectively, "Purchaser"). W I T N E S S E T H: ARTICLE I PURCHASE AND SALE Section 1.1 Agreement of Purchase and Sale. Subject to the terms and conditions hereinafter set forth, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller, the following: (a) the condominium units (the "Units") designated and described by the unit numbers listed on Exhibit A attached hereto and made a part hereof together with the appurtenant percentage interest of Seller in the common elements in the building (the "Building") known as One Madison Avenue Condominium (the "Condominium") and by the street address One Madison Avenue, Borough of Manhattan, City, County and State of New York, which Units are described in the declaration (the "Declaration") establishing under Article 9-B of the Real Property Law of the State of New York a plan for condominium ownership of the Building and the land more particularly described on Exhibit B attached hereto and made a part hereof upon which the Building is located (the "Land"), which Declaration is dated as of December 28, 2001 and was recorded in the Office of the Register of the City of New York, New York County (the "Register's Office") on December 31, 2001, in Reel 3418, Page 0945, as amended by Amendment to Declaration dated as of December 17, 2003 and recorded in the Register's Office on February 25, 2005 under CRFN 2005000115754, together with the undivided percentage interests in the Common Elements (as such term is defined in the Declaration, such definition being incorporated herein by reference) and any easements appurtenant to the Units as set forth in the Declaration. The Units are designated by the tax lot numbers listed on Exhibit A hereto on the Tax Map of the Real Property Assessment Department of the City of New York, Borough of Manhattan, and on the floor plans of the Building certified by HLW International LLP, as Condominium Plan Number 1223 filed in the Register's Office on December 31, 2001; the Building consists of two interconnected buildings: (i) a two-basement and fifteen-story structure, including two mechanical floors (the "South Building") and (ii) a two-basement and fifty-story structure (the "Tower") (b) any and all of Seller's right, title and interest in and to all tangible personal property (excluding cash, any software, any of the Wyeth or other paintings, sculptures or any other "Works of Art" (as such term is defined in the Net Lease, which Net Lease is more particularly described in Section 1.1 (c) below, and also excluding any furniture or other personal property existing on the second floor of the Tower and the Liebert UPS device located on the 38th floor of the Tower) if any, located at the Land and Building (the Land and Building are sometimes herein collectively referred to as the "Physical Property"), and used exclusively in connection with the operation of any portion of the Physical Property (the property described in clause (b) of this Section 1.1 being herein referred to collectively as the "Personal Property"). So that there is no misunderstanding, it is understood and agreed between the parties that the Wyeth paintings listed on Exhibit R, attached hereto and made a part hereof, are included within Works of Art, are not included in the Personal Property, are not for sale, and shall remain the property of Seller; (c) any and all of Seller's right, title and interest in and to that certain Amended and Restated Lease dated as of December 17, 2003, between Metropolitan Life Insurance Company, as Landlord, and Credit Suisse First Boston (USA), Inc., as tenant, which amended and restated in its entirety that certain Lease between Metropolitan Life Insurance Company, as landlord, and Credit Suisse First Boston (USA), Inc., as tenant (the "Tenant") dated as of February 22, 2001, covering those Units listed in Exhibit A-1 attached hereto and made a part hereof (the "Net Lease) and any other leases, licenses and occupancy agreements and amendments thereof covering all or any portion of the Units, to the extent they are in effect on the date of the Closing (as such term is defined in Section 4.1 hereof) (the property described in clause (c) of this Section 1.1 being herein referred to collectively as the "Leases"), together with all rents, reimbursements of real estate taxes and operating expenses, and other sums due thereunder (the "Rents") and any and all security deposits in Seller's possession in connection therewith (the "Security Deposits"); and (d) any and all of Seller's right, title and interest in and to (i) all assignable contracts and agreements and the Revocable Consents (as such term is hereinafter defined; collectively, the "Operating Agreements") listed and described on Exhibit C attached hereto and made a part hereof, relating to the upkeep, repair, maintenance or operation of the Units or the Personal Property, and (ii) all assignable existing warranties and guaranties (express or implied) issued to Seller in connection with the Real Property (as hereinafter defined) or the Personal Property to the extent not assigned to the Tenant under the Net Lease, and (iii) all assignable existing permits, licenses, approvals and authorizations issued by any governmental authority in connection with the Property (as hereinafter defined) (the property described in clause (d) of this Section 1.1 being sometimes herein referred to collectively as the "Intangibles"). Section 1.2 Property Defined. The Seller's right, title and interest in and to the Units and appurtenant common elements is hereinafter sometimes referred to collectively as the "Real Property." The Real Property, the Personal Property, the Rents, the Security Deposits, the Leases and the Intangibles are hereinafter sometimes referred to collectively as the "Property." Section 1.3 Purchase Price. Seller is to sell and Purchaser is to purchase the Property for the amount of NINE HUNDRED EIGHTEEN MILLION DOLLARS ($918,000,000) (the "Purchase Price"). Section 1.4 Payment of Purchase Price. The Purchase Price, as increased or decreased by prorations and adjustments as herein provided, shall be payable in full at Closing in 2 cash by wire transfer of immediately available funds to the bank account or accounts designated by Seller in writing to Purchaser prior to the Closing. Section 1.5 Deposit. Simultaneously with Purchaser's delivery of this Agreement, Purchaser shall deposit the Deposit (as hereinafter defined) in escrow with JP Morgan Chase Bank, N.A. (the "Escrow Agent"), having its office at New York Escrow Services, 4 New York Plaza, 21st Floor, New York, New York 10004 (ABA No: 021-000-021; Account Number: 507955013), the sum of Sixty Million Dollars ($60,000,000) (the "Deposit") in good funds, either by certified bank or cashier's check or by federal wire transfer. The Escrow Agent shall hold the Deposit in an interest-bearing account reasonably acceptable to Seller and Purchaser, in accordance with the terms and conditions of this Agreement. All interest earned on the Deposit shall become a part of the Deposit and shall be deemed income of Purchaser, and Purchaser shall be responsible for the payment of all costs and fees imposed on the Deposit account. The terms of the immediately preceding sentence shall survive Closing and any termination of this Agreement. The Deposit shall be distributed in accordance with the terms of this Agreement. The failure of Purchaser to timely deliver any Deposit hereunder shall be a material default, and shall entitle Seller, at Seller's sole option, to terminate this Agreement immediately. Section 1.6 Escrow Agent. Escrow Agent shall hold and dispose of the Deposit in accordance with the terms of this Agreement. Seller and Purchaser agree that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with this Agreement. Escrow Agent shall incur no liability in connection with the safekeeping or disposition of the Deposit for any reason other than Escrow Agent's willful misconduct or gross negligence. In the event that Escrow Agent shall be in doubt as to its duties or obligations with regard to the Deposit, or in the event that Escrow Agent receives conflicting instructions from Purchaser and Seller with respect to the Deposit, Escrow Agent shall not disburse the Deposit and shall, at its option, continue to hold the Deposit until both Purchaser and Seller agree in writing as to its disposition or until a final judgment is entered by a court of competent jurisdiction directing its disposition, or Escrow Agent shall interplead the Deposit in accordance with the laws of the state in which the Property is located. Escrow Agent shall not be responsible for any interest on the Deposit except as is actually earned, or for the loss of any interest resulting from the withdrawal of the Deposit prior to the date interest is posted thereon or for any loss caused by the failure, suspension, bankruptcy or dissolution of the institution in which the Deposit is deposited. Escrow Agent shall execute this Agreement solely for the purpose of being bound by the provisions of Sections 1.5 and 1.6 hereof. 3 ARTICLE II TITLE AND SURVEY Section 2.1 Title Inspection Period. Purchaser acknowledges and agrees that (a) Seller has furnished to Purchaser prior to the Effective Date: (i) a current preliminary title report dated December 18, 2004 (the "Title Commitment"), issued by Chicago Title Insurance Company on the Real Property, accompanied by copies of all documents referred to in the report; (ii) a copy of the land title survey ("the "Survey") prepared by Link Land Surveyors, P.C. dated March 9, 2005, and (iii) copies of the most recent property tax bills for the Property; (b) Purchaser has had an opportunity, prior to the Effective Date, to order its own title report and survey for the Physical Property; and (c) any and all matters (the "Existing Title, Tax and Survey Matters") referred to, reflected in or disclosed by, the materials referred to in the preceding sub-paragraphs (a) (i) through (iii), inclusive, have been agreed to and accepted by Purchaser (including but not limited to, any and all exceptions of title set forth in Schedule B of the Title Commitment) and that, as of the Effective Date, Purchaser has approved the Existing Title, Tax and Survey Matters and the condition of title to the Real Property. Section 2.2 Pre-Closing "Gap" Title Defects. Purchaser may, after the Effective Date but prior to the Closing, notify Seller in writing (the "Gap Notice") of any objections to title (a) raised by the Title Company (as defined in Section 2.5 hereof) between the Effective Date and the Closing and (b) not disclosed by the Title Company or otherwise disclosed in writing to Purchaser prior to the Effective Date; provided that Purchaser must notify Seller of such objection to title within two (2) business days of being made aware of the existence of such exception. If Purchaser issues a Gap Notice to Seller, Seller shall have five (5) business days after receipt of the Gap Notice to notify Purchaser (a) that Seller will remove such objectionable exceptions from title on or before the Closing; provided that Seller may extend the Closing for such period as shall be required to effect such cure, but not beyond thirty (30) days; or (b) that Seller elects not to cause such exceptions to be removed. The procurement by Seller of a commitment for the issuance of the Title Policy (as defined in Section 2.5 hereof) or an endorsement thereto (in form and substance reasonably acceptable to Purchaser) insuring Purchaser against any title exception which was disapproved pursuant to this Section 2.2 shall be deemed a cure by Seller of such disapproval. If Seller gives Purchaser notice under clause (b) above, Purchaser shall have five (5) business days in which to notify Seller that Purchaser will nevertheless proceed with the purchase and take title to the Property subject to such exceptions, or that Purchaser will terminate this Agreement. If this Agreement is terminated pursuant to the foregoing provisions of this paragraph, then neither party shall have any further rights or obligations hereunder (except for any indemnity obligations of either party pursuant to the other provisions of this Agreement), the Deposit shall be returned to Purchaser and each party shall bear its own costs incurred hereunder. If Purchaser shall fail to notify Seller of its election within said five-day period, Purchaser shall be deemed to have elected to proceed with the purchase and take title to the Property subject to such exceptions. Section 2.3 Permitted Exceptions. The Property shall be conveyed subject to the following matters, which are hereinafter referred to as the "Permitted Exceptions": (a) all liens, encumbrances, easements, covenants, conditions and restrictions, including any matters shown on any subdivision or parcel map affecting the Property which are set 4 forth in the Title Commitment and not set forth in the Gap Notice or if set forth in the Gap Notice, (x) are those which Seller has elected not to remove or cure, or has been unable to remove or cure, and (y) subject to which Purchaser has elected to accept the conveyance of the Property; (b) those matters that either are not objected to in writing within the time periods provided in Section 2.2 hereof, or if objected to in writing by Purchaser, are those which Seller has elected not to remove or cure, or has been unable to remove or cure, and subject to which Purchaser has elected or is deemed to have elected to accept the conveyance of the Property; (c) the rights of tenants under the Leases; (d) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the date of Closing, subject to adjustment as herein provided; (e) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; (f) items shown on the Survey; (g) the Declaration and the By-Laws of the Condominium; (h) those certain revocable consent agreements granted by the City of New York related to the bridge and tunnel connecting the Physical Property with a building on that certain property known as Eleven Madison Avenue, New York, New York, which revocable consent agreement was executed by Seller on September 19, 1995 (bridge), and was executed by Seller on June 18, 2001 (tunnel) (the "Revocable Consents"); (i) The existing designation of the Tower as a New York City Landmark by the New York City Landmarks Preservation Commission; the existing listing of the Tower in the National Register of Historic Places and as a National Historic Landmark by the National Park Service, Department of the Interior; and the existing listing of the Tower in the New York State Register of Historic Places by the New York State Historic Preservation Officer, Office of Parks, Recreation, and Historic Preservation; and all legal requirements of any public authorities in connection with such designations and listings. (j) the occupancy of the South Building pursuant to a temporary certificate of occupancy, as the tenant under the Net Lease (the "Tenant") is obligated to obtain a permanent certificate of occupancy for such building; (k) all matters which would be revealed or disclosed by a physical inspection of the Physical Property on the Effective Date; (l) the license agreement between Seller and Tenant pursuant to which the Wyeth Paintings shall remain in the Building after the Closing. (Purchaser acknowledges and agrees that Seller shall retain ownership of the Wyeth Paintings and that Seller shall have the right, as set forth in such license agreement, upon ninety (90) days notice, to remove the Wyeth Paintings 5 from the Physical Property and Purchaser shall cooperate with Seller in connection with any such removal). The rights of Seller under this subdivision (l), including the right to remove the Wyeth Paintings with the cooperation of Purchaser, shall survive the Closing and the transfer of the Property to Purchaser; and (m) Seller has claimed federal rehabilitation tax credits for the Tower for a rehabilitation project that ended on March 31, 2003, and all of such credits are personal to Seller and are not being transferred to Purchaser. Section 2.4 Violations. Purchaser shall accept title to the Property subject to any note or notices of violations of Law or municipal ordinances, orders or requirements noted or issued by any governmental department having jurisdiction over the Property, against or affecting the Property, or relating to conditions thereat at the date hereof or the Closing. Section 2.5 Conveyance of Title. At Closing, Seller shall convey and transfer to Purchaser all of the estate and rights of Seller in and to the Units, by execution and delivery of the Deed (as defined in Section 4.2(a) hereof). If at the Closing there shall be any liens, encumbrances or charges affecting title which are not permitted pursuant to this Agreement, Seller may, at Seller's option upon request from Seller to Purchaser, require Purchaser to apply such portion of the Purchase Price as shall be necessary to discharge such liens, encumbrances and charges and pay the recording fees for the same, and in such event, Seller shall deliver to Purchaser instruments in recordable form sufficient to discharge the same of record. Evidence of delivery of title in accordance with the terms of this Section 2.5 shall be the issuance by Chicago Title Insurance Company, or another national title company (the "Title Company"), of a 1992 ALTA Owner's Policy of Title Insurance (the "Title Policy") covering the Real Property, in the full amount of the Purchase Price, subject only to the Permitted Exceptions. ARTICLE III REVIEW OF PROPERTY Section 3.1 Right of Inspection. Purchaser acknowledges and agrees that it has had an opportunity prior to the Effective Date to make any and all physical, environmental and other inspections of the Physical Property as Purchaser has deemed necessary and/or appropriate in connection with the transaction contemplated by this Agreement, and that Purchaser has agreed, subject to the provisions of Section 2.2 and Article VII hereof, to accept the Physical Property at the Closing in the condition that exists on the Effective Date, reasonable wear and tear excepted. Purchaser further acknowledges and agrees that it has prior to the Effective Date had the opportunity to examine at the Physical Property (or the property manager's office, as the case may be) documents and files located at the Physical Property or the property manager's office concerning the leasing, maintenance and operation of the Physical Property (including without limitation, copies of permits, licenses, certificates of occupancy, plans and specifications, and insurance certificates related to the Physical Property, to the extent in Seller's or the property manager's possession), but excluding Seller's partnership or corporate records, internal memoranda, financial projections, budgets, appraisals, accounting and tax records and similar proprietary, confidential or privileged information (collectively, the "Confidential Documents"). 6 It is further agreed by the parties hereto that in no event shall Purchaser provide any governmental entity or agency with information concerning the environmental condition of the Physical Property without first obtaining Seller's prior written consent thereto, which Seller shall provide in the event that Purchaser is required by applicable law to provide such information to a governmental agency or entity. Purchaser agrees to protect, indemnify, defend and hold Seller harmless from and against any claim for liabilities, losses, costs, expenses (including reasonable attorneys' fees), damages or injuries arising out of or resulting from the inspection of the Property at any time by Purchaser, its agents, employees, representatives or consultants or any act or omission by Purchaser or its agents, employees or consultants, and notwithstanding anything to the contrary in this Agreement, such obligation to indemnify and hold harmless Seller shall survive Closing or any termination of this Agreement. Section 3.2 Property Reports. PURCHASER ACKNOWLEDGES THAT PRIOR TO THE EFFECTIVE DATE (1) PURCHASER HAS RECEIVED COPIES OF THE ENVIRONMENTAL AND OTHER REPORTS LISTED ON EXHIBIT D ATTACHED HERETO (COLLECTIVELY, THE "PROPERTY REPORTS"), AND HAS HAD MADE AVAILABLE TO IT BY SELLER OTHER PROPERTY REPORTS IN SELLER'S POSSESSION, (2) IF SELLER DELIVERS ANY ADDITIONAL ENVIRONMENTAL REPORTS TO PURCHASER, PURCHASER WILL ACKNOWLEDGE IN WRITING THAT IT HAS RECEIVED SUCH REPORTS PROMPTLY UPON RECEIPT THEREOF, AND (3) ANY PROPERTY REPORTS DELIVERED OR TO BE DELIVERED BY SELLER OR ITS AGENTS OR CONSULTANTS TO PURCHASER ARE BEING MADE AVAILABLE SOLELY AS AN ACCOMMODATION TO PURCHASER AND MAY NOT BE RELIED UPON BY PURCHASER IN CONNECTION WITH THE PURCHASE OF THE PROPERTY. PURCHASER AGREES THAT SELLER SHALL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER FOR ANY INACCURACY IN OR OMISSION FROM ANY PROPERTY REPORT. PURCHASER ACKNOWLEDGES AND AGREES THAT IT HAS PRIOR TO THE EFFECTIVE DATE CONDUCTED ITS OWN INVESTIGATION OF THE ENVIRONMENTAL, STRUCTURAL, ARCHITECTURAL, MECHANICAL AND PHYSICAL CONDITION OF THE PHYSICAL PROPERTY TO THE EXTENT PURCHASER DEEMED SUCH AN INVESTIGATION TO BE NECESSARY OR APPROPRIATE AND PURCHASER HAS APPROVED OF THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PHYSICAL PROPERTY AS OF THE EFFECTIVE DATE. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING OR OTHER TERMINATION OF THIS AGREEMENT. Section 3.3 Intentionally Omitted ARTICLE IV CLOSING Section 4.1 Time and Place. The consummation of the transaction contemplated hereby (the "Closing") shall be held at 10:00 AM on April 29, 2005 at the offices of Seller, or as mutually agreed between the parties, subject to Seller's option as hereinafter described. Purchaser 7 acknowledges that it is a material condition to the obligations of Purchaser under this Agreement that the Closing occur not later than April 29, 2005. Purchaser agrees that, subject to the second paragraph of Section 3.3 and Article 2 hereof, it shall not be entitled to any adjournment of the Closing beyond April 29, 2005, time being of the essence as to the performance of Purchaser's obligations hereunder by such date. At the Closing, Seller and Purchaser shall perform the obligations set forth in, respectively, Section 4.2 and Section 4.3 hereof, the performance of which obligations shall be concurrent conditions; provided that the Deed shall not be recorded until Seller receives confirmation that Seller has received the full amount of the Purchase Price, adjusted by prorations as set forth herein. At Seller's option, the Closing shall be consummated through an escrow administered by Escrow Agent pursuant to additional escrow instructions that are consistent with this Agreement. In such event, the Purchase Price and all documents shall be deposited with the Escrow Agent as escrowee. Section 4.2 Seller's Obligations at Closing. At Closing, Seller shall: (a) deliver to Purchaser a duly executed bargain and sale deed without covenant against grantor's acts (the "Deed"), in proper statutory short form for recording, and shall contain the covenant required by Section 13 of the New York Lien Law, in the form attached hereto as Exhibit E conveying the Units, together with the undivided percentage interests in the common elements of the Condominium, and any easements appurtenant to the Units as set forth in the Declaration, subject only to the Permitted Exceptions. At Seller's option, and for convenience, Seller may omit from the Deed the recital of any or all of the "subject to" clauses herein contained and/or any other title exceptions, defects or objections which have been waived by Purchaser in accordance with the terms of this Agreement, or consented to in writing by Purchaser, but the same shall nevertheless survive delivery of the Deed. The terms of the immediately preceding sentence shall survive the Closing; (b) deliver to Purchaser a duly executed bill of sale (the "Bill of Sale") conveying the Personal Property, if any, without warranty of title or use and without warranty, express or implied, as to merchantability and fitness for any purpose and in the form attached hereto as Exhibit F; (c) assign to Purchaser, and Purchaser shall assume, the landlord/lessor interest in and to the Leases, Rents and Security Deposits, and any and all obligations to pay leasing commissions and finder's fees with respect to the Leases and amendments, renewals and expansions thereof, to the extent provided in Section 4.4(b)(v) hereof, by duly executed assignment and assumption agreement (the "Assignment of Leases") in the form attached hereto as Exhibit G pursuant to which (i) Seller shall indemnify Purchaser and hold Purchaser harmless from and against any and all claims pertaining thereto arising prior to Closing and (ii) Purchaser shall indemnify Seller and hold Seller harmless from and against any and all claims pertaining thereto arising from and after the Closing, including without limitation, claims made by tenants with respect to tenants' Security Deposits to the extent paid, credited or assigned to Purchaser. In no event shall the Assignment of Leases assign any right, title or interest of Seller in and to the Works of Art or the right to display such Works of Art, and the Assignment of Leases shall exclude any rights of Seller which the Net Lease expressly provides are personal to Seller; 8 (d) to the extent assignable, assign to Purchaser, and Purchaser shall assume, Seller's interest in the Operating Agreements and the other Intangibles by duly executed assignment and assumption agreement (the "Assignment of Contracts") in the form attached hereto as Exhibit H pursuant to which (i) Seller shall indemnify Purchaser and hold Purchaser harmless from and against any and all claims pertaining thereto arising prior to Closing and (ii) Purchaser shall indemnify Seller and hold Seller harmless from and against any and all claims pertaining thereto arising from and after the Closing; (e) join with Purchaser to execute a notice (the "Tenant Notice") in the form attached hereto as Exhibit I, which Purchaser shall send to each tenant under each of the Leases promptly after the Closing, informing such tenant of the sale of the Property and of the assignment to Purchaser of Seller's interest in, and obligations under, the Leases (including, if applicable, any Security Deposits), and directing that all Rent and other sums payable after the Closing under each such Lease be paid as set forth in the Tenant Notice and join with Purchaser to execute a notice (the "NYC Notice") in the form attached hereto as Exhibit I-1, which Seller shall send to the City of New York, Department of Transportation (the "NYCDOT") promptly after the Closing, informing the NYCDOT of the sale of the Property and of the assignment to Purchaser of Seller's interest in, and obligations under, the Revocable Consents, including the security fund deposited thereunder) and requesting that the NYCDOT consent to such assignment or alternatively, issue new Revocable Consents to the Purchaser; (f) In the event that any representation or warranty of Seller made herein needs to be modified due to changes since the Effective Date, deliver to Purchaser a certificate, dated as of the date of Closing and executed on behalf of Seller by a duly authorized officer thereof, identifying any representation or warranty which is not, or no longer is, true and correct and explaining the state of facts giving rise to the change. In no event shall Seller be liable to Purchaser for, or be deemed to be in default hereunder by reason of, any breach of representation or warranty which results from any change that (i) occurs between the Effective Date and the date of Closing and is expressly permitted under the terms of this Agreement, or (ii) occurs between the Effective Date and the date of the Closing and is beyond the reasonable control of Seller to prevent; provided, however, that the occurrence of a change which is not permitted hereunder or is beyond the reasonable control of Seller to prevent shall, if materially adverse to Purchaser, constitute the non-fulfillment of the condition set forth in Section 4.6(b) hereof; if, despite changes or other matters described in such certificate, the Closing occurs, Seller's representations and warranties set forth in this Agreement shall be deemed to have been modified by all statements made in such certificate; (g) deliver to Purchaser such evidence as the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Seller; (h) deliver to Purchaser a certificate in the form attached hereto as Exhibit J duly executed by Seller stating that Seller is not a "foreign person" as defined in the Federal Foreign Investment in Real Property Tax Act of 1980; (i) deliver to Purchaser originals (to the extent originals are in Seller's possession, or photocopies if originals are not in Seller's possession) of the Leases and the Operating Agreements, together with such leasing and property files and records located at the 9 Property or the property manager's office which are material in connection with the continued operation, leasing and maintenance of the Property, but excluding any Confidential Documents; (j) deliver such affidavits as may be customarily and reasonably required by the Title Company, in a form reasonably acceptable to Seller; (k) deliver to Purchaser possession and occupancy of the Property, subject to the Permitted Exceptions; (l) execute a closing statement acceptable to Seller; (m) deliver to Purchaser the Board Resignation Letters (as hereinafter defined); and (n) deliver such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement. Section 4.3 Purchaser's Obligations at Closing. At Closing, Purchaser shall: (a) pay to Seller the full amount of the Purchase Price (which amount shall be paid by Escrow Agent releasing the Deposit to Seller and Purchaser paying the balance of the Purchase Price to Seller), as increased or decreased by prorations and adjustments as herein provided, in immediately available wire transferred funds pursuant to Section 1.4 hereof; (b) join Seller in execution of the Assignment of Leases, Assignment of Contracts, Tenant Notices and NYC Notice; (c) In the event that any representation or warranty of Purchaser set forth in herein needs to be modified due to changes since the Effective Date, deliver to Seller a certificate, dated as of the date of Closing and executed on behalf of Purchaser by a duly authorized representative thereof, identifying any such representation or warranty which is not, or no longer is, true and correct and explaining the state of facts giving rise to the change. In no event shall Purchaser be liable to Seller for, or be deemed to be in default hereunder by reason of, any breach of representation or warranty set forth in Sections 5.6 (a) or (b) hereof which results from any change that (i) occurs between the Effective Date and the date of Closing and is expressly permitted under the terms of this Agreement, or (ii) occurs between the Effective Date and the date of the Closing and is beyond the reasonable control of Purchaser to prevent; provided, however, that the occurrence of a change which is not permitted hereunder or is beyond the reasonable control of Purchaser to prevent shall, if materially adverse to Seller, constitute the non-fulfillment of the condition set forth in Section 4.7(c) hereof provided nothing contained in this Section shall be deemed to waive any remedies Seller may have for a default by Purchaser; if, despite changes or other matters described in such certificate, the Closing occurs, Purchaser's representations and warranties set forth in this Agreement shall be deemed to have been modified by all statements made in such certificate; (d) deliver to Seller such evidence as the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Purchaser; 10 (e) deliver such affidavits as may be customarily and reasonably required by the Title Company, in a form reasonably acceptable to Purchaser; (f) execute a closing statement acceptable to Purchaser; (g) join Seller in the execution of a works of art agreement that shall be in substantially the form of Exhibit T attached hereto and made a part hereof; (h) deliver such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement. Section 4.4 Credits and Prorations. (a) All income and expenses of the Property shall be apportioned as of 12:01 a.m., on the day of Closing, as if Purchaser were vested with title to the Property during the entire day upon which Closing occurs. Subject to the provisions of this Section 4.4, such prorated items shall include without limitation the following: (i) all Rents, if any; (ii) taxes and assessments (including personal property taxes on the Personal Property) levied against the Property to the extent such taxes and assessments are not the obligation of the Tenant under the Net Lease to pay; (iii) utility charges for which Seller is liable (to the extent such utility charges are not the obligation of the Tenant under the Net Lease to pay), if any, such charges to be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing (dated not more than fifteen (15) days prior to Closing) or, if unmetered, on the basis of a current bill for each such utility; (iv) all amounts payable under brokerage agreements and Operating Agreements, pursuant to the terms of this Agreement; (v) all amounts payable by the landlord under articles 34(f), 35 and 37 of the Net Lease and (vi) any other operating expenses or other items pertaining to the Property (to the extent the same are not the obligation of the tenant under the Net Lease to pay) which are customarily prorated between a purchaser and a seller in the county in which the Property is located. (b) Notwithstanding anything contained in Section 4.4(a) hereof: (i) At Closing, (A) Seller shall, at Seller's option, either deliver to Purchaser any Security Deposits actually held by Seller pursuant to the Leases or credit to the account of Purchaser the amount of such Security Deposits (to the extent such Security Deposits have not been applied against delinquent Rents or otherwise as provided in the Leases), and (B) Purchaser shall credit to the account of Seller all refundable cash or other deposits posted by Seller with utility companies serving the Property, or, at Seller's option, Seller shall be entitled to receive and retain such refundable cash and deposits; (ii) Any taxes paid by Seller at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and assessments due and payable by Seller during the year of Closing have not been paid before Closing, Seller shall be charged at Closing an amount equal to that portion of such taxes and assessments which relates to the period before Closing and Purchaser shall pay the taxes and assessments prior to their becoming delinquent. Any such apportionment made with respect to a tax year for which the tax rate or assessed valuation, or both, have not yet been fixed shall be based upon the tax rate and/or assessed valuation last fixed. To the 11 extent that the actual taxes and assessments for the current year differ from the amount apportioned at Closing, the parties shall make


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