Agreement
Bauman 34 th Street,
LLC
and
Goldberg 34 th Street,
LLC
Seller
and
504-514 West 34 th Street
Corp.
Buyer
_________________________________________________
Property
516 West 34 th
Street
New York, NY 10001
_________________________________________________
Date: July __, 2008
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1.
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Basic Terms and
Definitions
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1
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2.
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The
Property
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2
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3.
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Purchase
Price
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2
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4.
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Apportionments;
Miscellaneous Payments
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2
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5.
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Title
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4
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6.
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Closing;
Consent of Lender
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6
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7.
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Closing
Deliveries
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7
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8.
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Representations
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8
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9.
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Condition of
the Property
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10
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10.
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Risk of
Loss
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11
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11.
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Default
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12
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12.
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Assignment
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12
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13.
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Broker
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12
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14.
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Notices
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13
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15.
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Escrow
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13
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16.
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Miscellaneous
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15
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Exhibit A -
Land
Exhibit B -
Leases
Exhibit C -
Permitted Encumbrances
Exhibit D -
Service Contracts
Exhibit E -
Employees
Exhibit F -
Loan Documents
Exhibit G -
Tenancy-in-Common Agreement
Exhibit H - Net
Lease Agreement
Exhibit I -
Letter
Agreement
1.
Basic Terms and
Definitions
1.1 Date of this Agreement . July __, 2008
1.2 Seller . Bauman 34 th Street, LLC
(“Bauman Seller”) and Goldberg 34 th Street,
LLC (“Goldberg Seller”), both Delaware limited
liability companies
1.3 Buyer . 504-514 West 34 th Street Corp., a
Maryland corporation
1.4 Land .
The land described on Exhibit A to this Agreement
1.5 Purchase Price . $128,000,000.00
1.6 Deposit . $12,800,000.00, plus interest, if
any
1.7 Escrow Agent . Goulston & Storrs, P.C.
1.8 Closing Date . The date which is seven business days
following the date Seller obtains the consent of the holder of the
Loan Documents (“Lender”), subject to Subsection
6.1.2.
1.9 Closing Location . Goulston & Storrs, P.C., 750 Third
Avenue, New York, NY 10017.
1.10 Broker . None
1.11 Notice Addresses and Tax Identification
Numbers .
(a) Seller . Bauman 34 th Street, LLC, c/o
Patricia Bauman, The Bauman Foundation, Jewett House, 2040 S
Street, N.W., Washington, D.C. 20009-1110; Tax ID No. 90-0084824,
with a copy to Goulston & Storrs, P.C., 750 Third Avenue, New
York, NY 10017, attention: Mitchell N. Baron, Esq.; and Goldberg 34
th Street, LLC, c/o Jack Anfang, 6140 Evian Place,
Boynton Beach, FL 33437 and 139 Hadden Road, New Hyde Park, NY
11040; Tax ID No. 01-0781561, with a copy to Graubard Miller, 405
Lexington Avenue, New York, NY 10174, attention: Lester N. Henner,
Esq.
(b) Buyer . 504-514 West 34 th Street Corp.,
c/o Coach, Inc., 516 West 34 th Street, New York, NY
10001, attention: General Counsel; Tax ID No. 42-1674764, with a
copy to Phyllips Lytle, LLP, 437 Madison Avenue, New York, NY
10022, attention: Kenneth R. Crystal, Esq.
(c) Escrow Agent . Goulston & Storrs, P.C., 750 Third Avenue,
New York, NY 10017, attention: Mitchell N. Baron, Esq.
1.12 Certain Defined Terms .
(a) Leases . The occupancy agreements described on
Exhibit B to this Agreement.
(b) Permitted Encumbrances . The matters described on Exhibit C to
this Agreement.
(c) Service Contracts . The contracts described on Exhibit D
to this Agreement.
(d) Employees . The employees listed on Exhibit E to
this Agreement.
(e) Loan Documents . The documents listed on Exhibit F to
this Agreement.
1.13 Other Defined Terms .
(a) Closing . Section 6.1
(b) Equipment . Section 2.1
(c) Improvements . Section 2.1
(d) Property . Section 2.1
(e) Rents . Section 4.1
(f) Survival Period . Section 8.3
2.
The Property
.
2.1 The Property . Seller shall sell to Buyer, and Buyer shall
purchase from Seller, the Land and the buildings and improvements
on the Land (collectively, the “Improvements”; the Land
and the Improvements, collectively, the “Property”),
together with all of Seller’s right, title and interest, if
any, in and to (a) any land lying in the bed of any street, opened
or proposed, adjoining the Land, to the center line thereof, (b)
any unpaid condemnation award with respect to the Land or the
Improvements by reason of the change of grade of any street, (c)
any strips and gores adjoining the Land, (d) any rights relating to
the Land or the Improvements, (e) the Leases, (f) the Service
Contracts, (g) all fixtures, equipment and personal property used
in connection with the Land or the Improvements (the
“Equipment”), and (h) all intangible property used in
connection with the Land or the Improvements.
3.
Purchase Price.
3.1 Payment . The Purchase Price for the Property shall be
paid by Buyer to Seller as follows: (a) the Deposit shall be paid
on the execution and delivery of this Agreement by Buyer, by
certified check of Buyer or official bank check drawn on or by a
bank which is a member of the New York Clearing House Association,
L.L.C. to the order of Escrow Agent, or, at Seller’s option,
by a wire transfer to the account of Escrow Agent, the receipt of
which is hereby acknowledged, to be held in escrow by Escrow Agent
in accordance with this Agreement; (b) $92,200,000.00 shall be paid
at the Closing, by one or more certified checks of Buyer or
official bank checks drawn on or by a bank which is a member of the
New York Clearing House Association, L.L.C., or by wire transfers,
to payees, as requested by Seller at least one day prior to the
Closing Date; and (c) $23,000,000.00 shall be paid by Buyer
accepting title to the Property subject to the Loan Documents,
provided, however, that if Seller shall prepay any portion of the
principal of the Loan Documents at or prior to the Closing, an
amount equal to the amount of principal prepaid shall be added to
the amount payable pursuant to clause (b) of this
Section.
4.
Apportionments; Miscellaneous
Payments.
4.1 Income and Expenses . All income and expenses applicable to the
Property shall be apportioned between Seller and Buyer as of the
Closing Date, including the following items:
4.1.1
Rents . Rent, additional rent and all other charges
under the Leases (“Rents”), as and when collected,
subject to the provisions of this Article.
(a) Delinquent Rents . At the Closing, Seller shall deliver to Buyer
a list of all tenants under the Leases who are delinquent in the
payment of Rents, the amount of each delinquency, and the period to
which each delinquency is attributable. Any Rents collected by
Buyer after the Closing from any delinquent tenant, net of
reasonable out-of-pocket expenses incurred by Buyer to collect such
Rents, shall be applied in the following order of priority: first,
to delinquent Rents for the month in which the Closing occurs;
second, to delinquent Rents for the month prior to the month in
which the Closing occurs; third, to then current Rents due from
such tenant; and last, to delinquent Rents for all other months
prior to the month in which the Closing occurs. Buyer shall, at
Seller’s request, submit to delinquent tenants invoices for
Rents to which Seller is entitled. If any such Rents are collected
by Buyer, Buyer shall promptly pay to Seller the portion to which
Seller is entitled. Seller shall have the right, subsequent to the
Closing, to collect any such Rents not collected by Buyer directly
from the tenants, and to commence an action against the tenants for
such collection, but any such action shall not include an eviction
of any such tenants. Buyer shall reasonably cooperate with Seller
in connection with Seller’s efforts to collect any such Rents
not collected by Buyer.
(b) Unbilled Rents . At the Closing, Seller shall deliver to Buyer
a list of all Rents payable under the Leases which are either
billed but not due, or are unbilled, as of the Closing Date. To the
extent such Rents are unbilled, the list shall contain only a
description of the nature of the unbilled Rents since the actual
amounts may not be known until after the Closing. To the extent
Seller shall have received any sums on account of any such Rents,
such sums shall be set forth on the list and Seller shall be
entitled to retain the same as a payment on account of such Rents
due to Seller. Upon the determination by Buyer (with the reasonable
approval of Seller) of the amounts of such Rents, bills therefor
shall be delivered to the tenants. The first amounts collected by
Buyer in respect of such Rents shall be deemed to be in payment of
the amounts remaining due and payable to Seller. If any such Rents
are collected by Buyer, Buyer shall promptly pay to Seller the
portion to which Seller is entitled. Seller shall have the right,
subsequent to the Closing, to collect any such Rents not collected
by Buyer directly from the tenants, and to commence an action
against the tenants for such collection, but any such action shall
not include an eviction of any such tenants. Buyer shall reasonably
cooperate with Seller in connection with Seller’s efforts to
collect any such Rents not collected by Buyer.
4.1.2
Real Estate Taxes
. Real estate taxes on the basis of
the fiscal year for which assessed. If the Closing shall occur
before the tax rate is fixed, the apportionment of real estate
taxes shall be on the basis of the tax rate for the immediately
preceding fiscal year applied to the latest assessed valuation,
subject to final adjustment when the tax rate is fixed for the
fiscal year in which the Closing occurs. Seller shall have the
right to prosecute subsequent to the Closing any pending tax
certiorari proceedings for the fiscal year in which the Closing
occurs and all prior fiscal years. Any refunds obtained for any
fiscal years prior to the fiscal year in which the Closing occurs,
shall be paid to Seller. Any refund obtained for the tax year in
which the Closing occurs, net of the reasonable expenses incurred
in obtaining such refund, shall be paid to Buyer to the extent of
the amount thereof which is payable to the tenants under the
Leases, and the balance thereof, if any, shall be apportioned
between Seller and Buyer. Seller shall request from the attorney
representing Seller, and if received, shall deliver to Buyer at the
Closing, a letter outlining the status of any pending tax
certiorari proceedings, but the failure to obtain that letter shall
not be a condition to the Closing, a default by Seller or entitle
Buyer to any remedies, and this Agreement shall remain in full
force and effect according to its terms.
4.1.3
Water and Sewer
. Water and sewer charges and rents
on the basis of the fiscal year for which assessed. If there are
water or gas meters, Seller shall furnish readings to a date not
more than 30 days prior to the Closing Date, and the unfixed meter
charges and the unfixed sewer rents, if any, based thereon for the
intervening period shall be apportioned on the basis of such last
reading. If, however, the meters are read on the Closing Date, the
billing is switched to Buyer as of the Closing Date, or any such
charges or rents are payable by any tenant under a Lease, such
charges or rents shall not be apportioned.
4.1.4
Service Contracts
. All charges, advance payments and
deposits under the Service Contracts.
4.1.5
Fuel . Fuel (including sales tax) based on a reading
obtained by Seller and the last price paid by Seller for
fuel.
4.1.6
Employees . Salaries, wages, payroll costs and taxes,
vacation pay, union benefits and other fringe benefits, including,
without limitation, welfare and pension contributions, with respect
to the Employees.
4.1.7
Leasing Commissions
. All leasing commissions and any
installment thereof on account of Leases made after the date of
this Agreement, whether or not the same are due and payable prior
to, on or after the Closing Date shall be paid by Buyer at such
time as they are due and payable. If prior to the Closing Seller
shall pay any leasing commission or any installment thereof which
is the obligation of Buyer, Buyer shall reimburse Seller at the
Closing.
4.1.8
Interest on Loan
Documents . Interest on
the Loan Documents.
4.2 Miscellaneous Payments .
4.2.1
In addition to any other payments
under this Agreement, at the Closing, an amount equal to all
reserves, escrows and other cash applicable to the Property held by
Lender shall be paid by Buyer to Seller, as evidenced by a
statement of Lender or, if Lender shall refuse to give such
statement, then by a statement of the managing agent for the
Property, in the same manner as the balance of the cash portion of
the purchase price is paid by Buyer to Seller. Any reserves,
escrows or other cash applicable to the Property and not held by
the Lender shall be distributed to Seller at or prior to the
Closing.
4.2.2
At the Closing, Buyer shall arrange
for Coach, Inc. to pay all rents due under the lease held by Coach,
Inc. of a portion of the Property to the Closing Date, to be
apportioned pursuant to this Article.
4.3 Customs . Except as otherwise provided in this
Agreement, the apportionments shall be made as of the date
immediately preceding the Closing Date and otherwise in accordance
with the customs in respect to title closings recommended by the
Real Estate Board of New York, Inc.
4.4 Errors . Any errors in calculating the apportionments
shall be corrected as soon as practicable following the
Closing.
4.5 Survival . The provisions of this Article shall survive
the Closing.
5.
Title.
5.1 Permitted Encumbrances . The Property shall be conveyed subject to the
Permitted Encumbrances.
5.2 Title Report . Buyer shall, promptly after it executes this
Agreement, order and deliver to Seller a title search of the Land
and Improvements, together with notice of any objections which
Buyer may have with respect to title which are not Permitted
Encumbrances or which Seller is not required to remove pursuant to
any provision of this Agreement. Seller shall be entitled to
reasonable adjournments of the Closing (not to exceed 180 days) in
order to remedy any such objections. Buyer shall be responsible for
all charges and premiums in connection with its title search, title
insurance policy and survey, if any.
5.3 Inability to Convey . Notwithstanding any provision of this
Agreement to the contrary, if Seller is unable to convey the
Property in accordance with this Agreement, the sole obligation and
liability of Seller shall be to permit Escrow Agent to pay to Buyer
the Deposit, and for Seller to pay to Buyer the cost paid by Buyer
for Buyer’s title search and survey, if any, whereupon this
Agreement shall be deemed terminated and Seller and Buyer shall be
released of all obligations and liabilities under this Agreement,
except those that are stated to survive the termination of this
Agreement. Buyer shall have no further rights of action against
Seller, in law or in equity, for damages or specific performance.
Buyer shall have the right, however, to accept such title as Seller
can convey, in which event Seller shall make the deliveries
provided in this Agreement to Buyer, to the extent Seller is able
to do, and there shall be no reduction of the Purchase Price.
Seller shall not be required to take any action, to institute any
proceedings or to incur any expense in order to remedy any
objections to title. If Seller shall elect not to take any action,
institute any proceeding or incur any expense to remedy any
objection to title, Seller shall be deemed unable to convey the
Property in accordance with the terms of this Agreement, provided,
however, Seller (or, if caused by only one Seller, the responsible
Seller) shall be required to remove of record the following liens
(unless any of such liens are Permitted Encumbrances or Seller is
not required to remove any such liens pursuant to any express
provision of this Agreement): (a) any mortgage on the Land or the
Improvements other than the mortgages which are part of the Loan
Documents; and (b) any lien voluntarily created by Seller after the
date of this Agreement. The acceptance of the deed to the Land and
the Improvements by Buyer shall be deemed full performance by
Seller of all of Seller’s obligations under this Agreement,
except those, if any, which are specifically stated in this
Agreement to survive the Closing. Unless otherwise stated on this
Agreement, no obligations, liabilities, representations or
warranties of Seller shall survive the Closing.
5.4 Violations . Notwithstanding any provision of this
Agreement to the contrary, Seller shall not be obligated to comply
with, or take any action or incur any expense in connection with,
any violations of law, now or hereafter existing, and Buyer shall
accept title to the Property subject to any such
violations.
5.5 Emergency Repairs . Any obligations affecting the Property
incurred under the Emergency Repairs provisions of the
Administrative Code of the City of New York (Sections 564-18.0,
etc.) prior to the Closing shall be paid by Seller.
5.6 Assessments . If, on the Closing Date, the Land or the
Improvements are affected by any assessments by any government
authority (a) Buyer shall accept title to the Property subject to
any such assessments or installments thereof payable on or after
the Closing Date and (b) any such assessments or installments
thereof payable prior to the Closing Date shall be apportioned
pursuant to Article 4.
5.7 Removal of Liens and Encumbrances
. If on the Closing Date there are
any liens or encumbrances which Seller is obligated or elects to
remove of record, same shall be deemed removed of record if
Buyer’s title insurance company agrees, without additional
premium, to insure (a) Buyer without exception for such liens and
encumbrances or that same shall not be enforced against the
Property and (b) Buyer’s lender, if any, without exception
for such liens and encumbrances.
5.8 Survival . The provisions of this Article shall survive
the Closing.
6.
Closing; Consent of
Lender .
6.1 Closing .
6.1.1
The closing of the transactions
contemplated by this Agreement (the “Closing”) shall
take place at the Closing Location, at 10:00 A.M. on the Closing
Date (time being of the essence with respect to Buyer’s and
Seller’s obligation to close on the date which is seven
business days following that date), subject to any adjournments
permitted under this Agreement. If the Closing shall not occur on
the Closing Date, then for the purposes of this Agreement, the date
on which the Closing occurs shall be deemed the Closing
Date.
6.1.2
Buyer acknowledges that each Seller
owns a 50% interest in the Property as a tenant-in-common.
Accordingly, notwithstanding any provision of this Agreement to the
contrary, Seller and Buyer agree as provided in this
Subsection.
(a) All payments by Buyer to Seller under this
Agreement shall be made 50% to Bauman Seller and 50% to Goldberg
Seller, subject to this Subsection.
(b) All payments by Seller under this Agreement
shall be made 50% by Bauman Seller and 50% by Goldberg Seller,
subject to this Subsection (except as expressly provided in this
Agreement). Notwithstanding the foregoing, the liability of Seller
under this Agreement shall be several, not joint and several, so
that if only one Seller shall default under this Agreement only
that Seller shall be liable for that default.
(c) If Goldberg Seller desires to effectuate a
tax-free exchange of its interest, Goldberg Seller shall have the
right from time to time to adjourn the Closing of its interest (but
not the Bauman Seller interest) to a date not later than the 730
th day following the date of the First Closing (as
defined in paragraph (d) of this Subsection), provided that (i)
Goldberg Seller shall give Buyer notice of the adjournment not less
than five business days prior to the then scheduled Closing Date
and (ii) the adjourned Closing Date shall be not less than 30 days
following the then scheduled Closing Date. If Goldberg Seller shall
adjourn the Closing of its interest, and thereafter request a
Closing prior to the scheduled Closing Date, Buyer shall reasonably
cooperate with Goldberg Seller to accommodate a reasonable
acceleration of the Closing.
(d) If Goldberg Seller shall adjourn the Closing of
its interest, the Closing of the Bauman Seller interest (the
“First Closing”) shall occur on the originally
scheduled Closing Date and the Closing of the Goldberg Seller
interest shall occur on the adjourned Closing Date (subject to
further adjournments as provided in this Subsection), in accordance
with this Agreement, except that the following shall
apply:
(i) The Purchase Price payable to each Seller shall
be $64,000,000, the Deposit applicable to each Seller shall be
$6,400,000 plus the interest thereon, if any, and the principal of
the Loan Documents applicable to (and deducted from the Purchase
Price of) each Seller shall be $11,500,000.
(ii) At the First Closing, the Deposit applicable to
Goldberg Seller shall be delivered by Escrow Agent named in this
Agreement to an Escrow Agent designated by Goldberg Seller, which
Escrow Agent shall, by accepting the Deposit applicable to the
Goldberg Seller interest, be deemed to have agreed to the escrow
provisions of this Agreement and the original Escrow Agent shall be
released from all liabilities and obligations under this
Agreement.
(iii) The Closing of the Goldberg Seller interest
shall occur at a Closing Location in New York City designated by
Buyer’s lender or, if none, Goldberg Seller.
(iv) At each Closing (A) each Seller shall convey to
Buyer only its 50% tenant-in-common interest in the Property, (B)
Buyer shall pay only the Purchase Price applicable to the interest
of that Seller and (C) the apportionments and miscellaneous
payments shall be made only with respect to the 50% interest in the
Property which is conveyed; however, following the First Closing,
the apportionments and miscellaneous payments shall be governed by
the Net Lease.
(v) Following the First Closing, all references in
this Agreement to (A) Seller, shall be deemed to refer solely to
Goldberg Seller and (B) the Deposit, shall be deemed to refer
solely to the sum of $6,400,000 plus the interest thereon, if
any.
(vi) Notwithstanding the provisions of this
Agreement, if the First Closing occurs, 50% of the interest on the
Deposit through the date immediately preceding the First Closing
shall be paid to Bauman Seller at the First Closing, and if the
Closing of the Goldberg Seller interest occurs, at that closing 50%
of the interest on the Deposit through the date immediately
preceding the First Closing shall be paid to Goldberg Seller and
the balance of the interest shall be paid to Buyer.
(vii) If, following the First Closing, the Closing of
the Goldberg Seller interest fails to occur on or before the date
which is 730 days following the date of the First Closing solely as
the result of the default of Goldberg Seller (and Buyer is then
ready, willing and able to close in accordance with this
Agreement), then in addition to all other rights or remedies of
Buyer, the Purchase Price for the Goldberg Seller interest shall be
reduced by $2,000,000.
(viii) If, following the First Closing, the Closing of
the Goldberg Seller interest fails to occur on or before the date
which is 90 days following the date of the notice given by Goldberg
Seller pursuant to the first sentence of Subsection 6.1.2(c) solely
as the result of the default of Buyer (and Goldberg Seller is then
ready, willing and able to close in accordance with this
Agreement), then in addition to all other rights or remedies of
Goldberg Seller, the Purchase Price for the Goldberg Seller
interest shall be increased by $2,000,000.
(ix) On the date of this Agreement, Goldberg Seller
and Buyer have entered into the Tenancy-In-Common Agreement
attached to this Agreement as Exhibit G (the “TIC
Agreement”), the Net Lease Agreement attached to this
Agreement as Exhibit H (the “Net Lease”) and the letter
attached to this Agreement as Exhibit I (the “Letter”),
each effective as of the date of the First Closing, subject to the
Consent (as defined in Subsection 6.2.1) and the occurrence of the
First Closing. If the First Closing shall not occur,
notwithstanding any provision of this Agreement, the TIC Agreement,
the Net Lease or the Letter to the contrary, the TIC Agreement, the
Net Lease and the Letter shall be deemed null and void and of no
force or effect. Upon the completion of the First Closing, Goldberg
Seller and Buyer shall execute and acknowledge a memorandum of this
Agreement containing the information required by law and any other
information which is acceptable to both parties, and any other
documents required to record the memorandum. Buyer shall have the
right, at its option and at its expense, to record the memorandum.
If the Closing of the Goldberg Interest shall not occur and this
Agreement is terminated, Buyer shall promptly return the original
memorandum, if not recorded or, if recorded, execute, acknowledge
and record a cancellation of the memorandum.
(e) Buyer shall otherwise reasonably cooperate with
Goldberg Seller in connection with the exchange, at no cost to
Buyer and without Buyer incurring any additional obligations or
liabilities.
6.2 Consent of Lender .
6.2.1
This Agreement is subject to and
conditioned on the receipt by Seller of the consent of Lender to
the sale of the Property by Seller to Buyer, the TIC Agreement and
the Net Lease (the “Consent”), on or before the date
(the “Consent Date”) which is 90 days following the
date of this Agreement. Seller may extend the Consent Date to the
date which is 180 days following the date of this Agreement by
giving notice of the extension to Buyer on or before the date which
is 15 days prior to the original Consent Date.
6.2.2
Promptly following the execution
and delivery of this Agreement Seller shall request the Consent.
Seller and Buyer shall (a) furnish the information, documents and
other items required by the Loan Documents or Lender, including
financial statements, (b) execute and deliver an agreement
reasonably acceptable to Seller, Buyer and Lender under which Buyer
assumes all of Seller’s obligations and liabilities under the
Loan Documents and Seller is released from all obligations and
liabilities under the Loan Documents and (c) otherwise cooperate in
good faith with Lender to obtain the Consent. Buyer shall pay all
fees, charges and expenses of Lender as required by the Loan
Documents in connection with the Consent.
6.2.3
If Seller shall not receive the
Consent on or before the Consent Date (as the same may be extended
pursuant to this Section), this Agreement shall automatically
terminate, Escrow Agent shall pay the Deposit to Buyer, and neither
party shall have any further obligations or liabilities under this
Agreement, except those that are expressly stated to survive the
termination of this Agreement, unless Seller, at Seller’s
expense, by notice to Buyer on or before the date which is 15 days
following Lender’s denial of the Consent, elects to prepay or
defease the Loan Documents (in which event Buyer shall pay a
portion of any prepayment fee or expense of defeasance up to the
amount of the consent fee which otherwise would have been payable
had Lender given the Consent). If Seller shall not elect to prepay
or defease, Buyer may elect to do so, at Buyer’s expense, by
notice to Seller on or before the 15 th day following
the end of Seller’s 10-day election period.
7.
Closing
Deliveries.
7.1 Seller’s Deliveries
. At the Closing, Seller shall
execute, acknowledge and deliver the items set forth in this
Section.
(a) A bargain and sale deed, without covenant
against grantor’s acts, containing the covenant required by
subdivision 5 of Section 13 of the Lien Law.
(b) All tax and other forms required by any
Federal, state or local government authority in connection with the
transactions contemplated by this Agreement, together with
certified or official bank checks to the order of the appropriate
government authority for any conveyance or similar tax imposed by
any Federal, state or local government authority in connection with
the transactions contemplated by this Agreement. Buyer shall
execute such forms and shall deliver the forms and the aforesaid
checks to Buyer’s title insurance company for delivery to the
appropriate government authority promptly after the
Closing.
(c) An assignment of the Leases, the security
deposits under the Leases (which shall be paid by Seller to Buyer
at the Closing) and the Service Contracts, without representation
or warranty other than as specifically set forth in this Agreement,
containing Seller’s agreement to indemnify, defend and hold
harmless Buyer from and against all claims, actions, proceedings,
losses, liabilities and expenses (including reasonable
attorney’s fees) by reason of Seller’s failure to
perform Seller’s obligations under the Leases (other than the
Lease held by Coach, Inc. of a portion of the Property) or the
Service Contracts accruing prior to the Closing Date (provided
Buyer makes a claim against Seller prior to the expiration of the
Survival Period). Buyer shall execute the assignment for the
purpose of assuming Seller’s obligations under the Leases and
the Service Contracts, and indemnifying, defending and holding
harmless Seller from and against all claims, actions, proceedings,
losses, liabilities and expenses (including reasonable
attorneys’ fees) by reason of Buyer’s failure to
perform Buyer’s obligations under the Leases or the Service
Contracts accruing on or after the Closing Date. Notwithstanding
the foregoing, any Service Contract that is cancellable without
payment or penalty (unless paid by Buyer) shall be cancelled by
Seller effective as of the Closing Date or the earliest date
thereafter cancellation is permitted, if requested by Buyer not
less than 10 days prior to the Closing Date.
(d) A certification that Seller is not a
“foreign person” as such term is defined in Section
1445 of the Internal Revenue Code of 1984, as amended, and the
regulations thereunder, in the form required thereby.
(e) Notices to the tenants under the Leases signed
by Seller and Buyer advising the tenants of the conveyance to Buyer
of Seller’s landlord’s interest and, where applicable,
the security deposits.
(f) A certificate of a member of Seller certifying
that : (i) Seller is authorized to enter into and perform this
Agreement; (ii) the Certificate of Formation of Seller has been
filed in the proper office and is in full force and effect and
(iii) the Members of Seller have consented to Seller’s
entering into and performing this Agreement.
(g) An assignment of the Loan Documents, without
representation or warranty other than as specifically set forth in
this Agreement, assigning to Buyer all of Seller’s right,
title and interest in, to and under the Loan Documents, including
all amounts (with the interest thereon) held in escrow or in a
reserve by Lender in respect of the Property, which shall be paid
by Buyer to Seller at the Closing in the same manner as the balance
of the cash portion of the Purchase Price is paid by Buyer to
Seller. Buyer shall execute the assignment for the purpose of
assuming Seller’s obligations under the Loan
Documents.
(h) A statement from Lender, dated within 30 days
of the Closing Date, of the unpaid principal balance and accrued
interest on the Loan Documents. Seller shall request that such
statement include a statement of the balance of any escrows or
reserves held by Lender, but the failure of Lender to include such
statement shall not be a default under this Agreement or otherwise
modify any obligation of Buyer under this Agreement, including the
obligation to pay those escrows and reserves to Seller at the
Closing or to close the transactions contemplated by this Agreement
in accordance with this Agreement.
(i) All employee and maintenance records, plans,
specifications, licenses and permits relating to the Property in
Seller’s possession or control.
(j) The letter referred to in Subsection 4.1.2, if
obtained.
(k) The estoppel letter referred to in Subsection
8.1.2., if obtained.
(l) Any other deliveries required to be made by
Seller pursuant to this Agreement.
7.2 Buyer’s Deliveries . At the Closing, Buyer shall execute,
acknowledge and deliver all documents, and make all of the other
deliveries, required of Buyer pursuant to this Agreement, including
payment of the balance of the Purchase Price and all other
payments.
7.3 Survival . The provisions of this Article shall survive
the Closing.
8.
Representations.
8.1 Seller’s Representations
. Each Seller represents to Buyer
for itself as set forth in this Section.
8.1.1
Authorization
.
(a) Seller (i) is duly organized, validly existing
and in good standing under the law of the State of its formation
and (ii) has the power to perform Seller’s obligations under
this Agreement.
(b) This Agreement is a valid and binding
obligation of Seller, enforceable against Seller in accordance with
its terms, subject to bankruptcy, reorganization and other similar
laws affecting the enforcement of creditors’ rights
generally.
(c) The execution, delivery and performance of this
Agreement in accordance with its terms (i) does not violate the
constitutive documents of Seller, or any agreement, order, judgment
or decree binding on Seller and (ii) have been duly authorized by
all necessary action by Seller.
8.1.2
Leases . A list of all of the Leases (but not subleases
entered into by any tenants under the Leases) affecting the Land or
the Improvements on the date of this Agreement is attached to this
Agreement as Exhibit C , complete copies of which have been
made available to Buyer for Buyer’s review. To the actual
knowledge of Seller, on the date of this Agreement (i) the Leases
are in good standing and in full force and effect in accordance
with their respective terms, (ii) except as set forth on Exhibit
C , the Leases have not been amended and (iii) except as set
forth on Exhibit C , there has been no written claim of
default under any of the Leases on the part of any party thereto
which remains uncured on the date of this Agreement. Seller’s
representations under this Subsection shall not be deemed made with
respect to the Lease held by Coach, Inc. of a portion of the
Property. Seller shall not, without Buyer’s consent,
voluntarily terminate or modify any of the Leases or enter into any
new Leases. Notwithstanding the foregoing, if prior to the Closing
Date any tenant under a Lease shall default under its Lease or any
Lease is terminated (other than pursuant to a voluntarily
termination by Seller), Buyer’s obligation to accept title to
the Property and to pay the full Purchase Price shall not be
affected, and this Agreement shall remain in full force and effect.
Nothing contained in this Agreement shall prevent Seller from
commencing any action, including a summary dispossesses proceeding
or non-payment proceeding, against any tenant that is in default
under its Lease, or from applying any security deposit held by
Seller. On the date of this Agreement, there are no leasing
commissions due with respect to the Leases. Seller shall request
from Forest Electric Corp., and if received deliver to Buyer at the
Closing, an estoppel letter in accordance with the Lease with
Forest Electric Corp. If Forest Electric Corp. fails to deliver
same, Seller shall not be in default under this Agreement and this
Agreement shall remain in full force and effect in accordance with
its terms and, notwithstanding the provisions of Section 8.3
Sellers’ representations in this Subsection with respect to
that Lease shall survive the Closing without time limit.
8.1.3
Service Contracts
. A list of all of the Service
Contracts which affect the Property on the date of this Agreement
is attached to this Agreement as Exhibit D , complete copies
of which have been made available to Buyer for Buyer’s
review. To the actual knowledge of Seller, on the date of this
Agreement (i) the Service Contracts are in good standing and in
full force and effect in accordance with their respective terms,
(ii) except as set forth in Exhibit D , the Service
Contracts have not been amended, and (iii) except as set forth in
Exhibit D , there has been no written claim of default under
any of the Service Contracts by any party thereto which remains
uncured on the date of this Agreement. Seller shall not, without
Buyer’s consent, enter into any Service Contract after the
date of this Agreement unless it can be terminated on not more than
30 days’ notice, without penalty.
8.1.4
Employees . A list of all of the Employees of the Property
on the date of this Agreement who shall remain Employees of the
Property following the Closing and who shall be the responsibility
of Buyer, and their salaries and any applicable collective
bargaining or other agreements is attached to this Agreement as
Exhibit E . On and after the Closing Date (i) Buyer shall be
deemed to have assumed and to be responsible for all employment and
employee benefit-related matters, obligations and liabilities that
are payable on or after the Closing Date, regardless of whether
such liabilities arise before, on or after the Closing Date, with
respect to all of the Employees, (ii) Seller shall have no
responsibilities, liabilities or obligations with respect to the
Employees, and (iii) Buyer shall be deemed to have assumed the
collective bargaining agreements and other employment agreements
set forth on Exhibit E , and all liabilities and obligations
under those agreements, the National Labor Relations Act, the Labor
Management Relations Act and all other laws and regulations
applicable to the Employees, and Seller shall have no obligation or
liability in connection with same. Buyer shall indemnify, defend
and hold harmless Seller from and against all claims, actions,
proceedings, losses, liabilities and expenses (including reasonable
attorneys fees) by reason of Buyer’s failure to perform
Buyer’s obligations set forth in this Subsection. Seller
shall indemnify, defend and hold harmless Buyer from and against
all claims, actions, proceedings, losses, liabilities and expenses
(including reasonable attorney’s fees) by reason of any claim
by an Employee of the Property arising prior to the
Closing.
8.1.5
Actions . To the actual knowledge of Seller, there is no
litigation, arbitration or other action, proceeding or governmental
investigation pending or threatened relating to the Property on the
date of this Agreement, other than litigations, actions or
proceedings covered by insurance, the proposed regrading of West 33
rd Street and the action against Buyer by Studley Inc.
for a commission in connection with Buyer’s Lease.
8.1.6
The Loan Documents
. A list of the Loan Documents is
attached to this Agreement as Exhibit F , complete copies of
which have been made available to Buyer for Buyer’s review.
The unpaid principal balance of the Loan Documents on the date of
this Agreement is $23,000,000. On the date of this Agreement, to
the actual knowledge of Seller (a) the Loan Documents are in full
force and effect in accordance with their terms, (b) Seller is not
in default under the Loan Documents and (c) there has been no
written claim of default under the Loan Document by any party
thereto which remains uncured. Seller shall (i) cause the Loan
Documents to be complied with until the Closing, including the
payment of all interest due and payable prior to Closing, and (ii)
not amend the Loan Documents or prepay the principal of the Loan
Documents.
8.1.7
Patriot Act
.
(a)
Seller is in compliance with the
requirements of Executive Order No. 133224, 66 Fed. Reg. 49079
(Sept. 25, 2001) (the “ Order ”) and
other similar requirements contained in the rules and regulations
of the Office of Foreign Assets Control, Department of the Treasury
(“ OFAC ”) and in any enabling
legislation or other Executive Orders or regulations in respect
thereof (the Order and such other rules, regulations, legislation,
or orders are collectively called the “
Orders ”).
(b)
Neither Seller nor any beneficial
owner of Seller:
(i) is listed on the Specially Designated Nationals
and Blocked Persons List maintained by OFAC pursuant to the Order
or on any other list of terrorists or terrorist organizations
maintained pursuant to any of the rules and regulations of OFAC or
pursuant to any other applicable Orders (such lists are
collectively referred to as the “ Lists
”);
(ii) is a person or entity who has been determined
by competent authority to be subject to the prohibitions contained
in the Orders; and
(iii) is owned or controlled by, or acts for or on
behalf of, any person or entity on the Lists or any other person or
entity who has been determined by competent authority to be subject
to the prohibitions contained in the Orders.
(c)
If Seller obtains knowledge that
Seller or any of its beneficial owners becomes listed on the Lists
or is indicted, arraigned, or custodially detained on charges
involving money laundering or predicate crimes to money laundering,
Seller shall immediately notify Buyer in writing, and in such
event, Buyer shall have the right to terminate this Agreement
without penalty or liability to Seller immediately upon delivery of
written notice thereof to Seller.
8.2 Buyer’s Representations
. Buyer represents and warrants to
Seller as set forth in this Section.
8.2.1
Authorization
.
(a) Buyer (i) is a duly organized, validly existing
and in good standing under the law of the State of its formation
and (ii) has the power to make and perform Buyer’s
obligations under this Agreement.
(b) This Agreement is a valid and binding
obligation of Buyer, enforceable against Buyer in accordance with
its terms, subject to laws affecting the enforcement of
creditors’ rights generally.
(c) The execution, delivery and performance of this
Agreement in accordance with its terms (i) does not violate the
constitutive documents of Buyer, or any contract, agreement,
commitment, order, judgment or decree to which binding on Buyer and
(ii) have been duly authorized by all necessary action by
Buyer.
8.2.2
Patriot Act.
(a)
Buyer is in compliance with the
requirements of Executive Order No. 133224, 66 Fed. Reg. 49079
(Sept. 25, 2001) (the “ Order ”) and
other similar requirements contained in the rules and regulations
of the Office of Foreign Assets Control, Department of the Treasury
(“ OFAC ”) and in any enabling
legislation or other Executive Orders or regulations in respect
thereof (the Order and such other rules, regulations, legislation,
or orders are collectively called the “
Orders ”).
(b)
Buyer:
(i) is not listed on the Specially Designated
Nationals and Blocked Persons List maintained by OFAC pursuant to
the Order and/or on any other list of terrorists organizations
maintained pursuant to any of the rules and regulations of OFAC or
pursuant to any other applicable Orders (such lists are
collectively referred to as the “ Lists
”);
(ii) is not a person or entity who has been
determined by competent authority to be subject to the prohibitions
contained in the Orders; and
(iii) is not owned or controlled by, or acts for or
on behalf of, any person or entity on the Lists or any other person
or entity who has been determined by competent authority to be
subject to the prohibitions contained in the Orders.
(c)
Buyer hereby covenants and agrees
that if Buyer obtains knowledge that Buyer or any of its
controlling beneficial owners becomes listed on the Lists, Buyer
shall immediately notify Seller in writing, and in such event,
Seller shall have the right to terminate this Agreement without
penalty or liability to Buyer immediately upon delivery of written
notice thereof to Buyer.
8.3 Survival . The representations in this Agreement shall
survive the Closing, but Seller’s representations shall
survive the Closing only for a period of 180 days following the
Closing (the “Survival Period”), and any action brought
thereon must be commenced by Buyer within the Survival
Period.
9.
Condition of the
Property.
9.1 AS IS . Buyer represents that Buyer (a) has inspected
all aspects of the Property, including the environmental condition,
to Buyer’s satisfaction, (b) has received and reviewed the
Leases, the Service Contracts, the certificate of occupancy for the
Improvements, and all other documents referred to in this
Agreement, (c) shall accept the Property “AS IS” and in
their present condition, subject to reasonable use, wear, tear and
natural deterioration between the date of this Agreement and the
Closing Date and (d) except as set forth in this Agreement, neither
Seller nor any agent or representative of Seller has made, and
Seller is not liable for or bound by, any express or implied
warranties, guaranties, promises, statements, inducements,
representations or information pertaining to the Leases, the
Service Contracts, the certificate of occupancy for the
Improvements, any other documents referred to in this Agreement,
the Property, including the environmental condition, or any other
matter.
9.2 Maintenance . Between the date of this Agreement and the
Closing Date, Seller shall, subject to the provisions of this
Agreement, cause the Property to be maintained in the ordinary
course (but shall not be required to make extraordinary repairs or
replacements resulting from fire or other casualty or otherwise, or
any repairs and replacements of the roof or mechanical systems of
the Improvements).
9.3 Inspection . At all times during normal business hours
prior to the Closing, Buyer and its contractors, upon reasonable
prior notice to Seller, and accompanied by Seller’s
representative, shall have the right to make visual, noninvasive
inspections of the Property, subject to the terms of the
Leases.
9.4 Environmental Claims . Seller shall have no obligation or liability
to Buyer in connection with any environmental matter affecting the
Property, and Buyer hereby releases Seller and Seller’s
affiliates, agents, contractors, officers, directors and employees
from any claim relating thereto, including any claims for personal
injury, real or personal property damage, or otherwise, and any
damages, penalties, fines, liabilities, costs and fees in
connection therewith, except with respect to a claim made against
Buyer by a party unrelated to Buyer relating to an environmental
condition which existed prior to the Closing Date for which Seller
may be liable.
9.5 Survival . The provisions of this Article shall survive
the Closing.
10.
Risk of Loss.
10.1
Risk of Loss
. If prior to the First Closing any
material portion of the Land or the Improvements shall be taken or
damaged or destroyed by fire or other casualty, Buyer shall have
the right to terminate this Agreement by giving notice to Seller on
or before the date which is 15 days following Buyer’s receipt
of notice of the taking or fire or other casualty (time being of
the essence). If Buyer shall give that notice, Escrow Agent shall
pay the Deposit to Buyer, this Agreement shall be deemed terminated
and Seller and Buyer shall have no further obligations and
liabilities under this Agreement, except those that are stated to
survive the termination of this Agreement. If an immaterial portion
of the Land or the Improvements shall be taken or damaged or
destroyed by fire or other casualty, or if there is a material
taking or fire or other casualty and Buyer shall not terminate this
Agreement, Buyer shall purchase the Property in accordance with
this Agreement and the Purchase Price shall not be reduced, but
Seller’s rights to (a) any award resulting from such taking,
or (b) any insurance proceeds resulting from such fire or other
casualty (less any sums expended by Seller for repair and
restoration), shall be assigned by Seller to Buyer (or, to the
extent received by Seller, paid to Buyer) at the Closing, and any
deductible under Seller’s fire or other casualty insurance
shall be paid by Seller to Buyer at the Closing (or offset against
the Purchase Price). A “material portion of the Land or the
Improvements” (i) shall be deemed taken, if the portion taken
equals or exceeds the aggregate of (x) 10 percent of the Land or
the Improvements plus (y) any portion taken as the result of the
proposed regrading of West 33 rd Street, and (ii) shall
be deemed damaged or destroyed by fire or other casualty, if as a
result thereof, Coach, Inc. has the right to, and shall, terminate
its entire Lease of a portion of the Property. The provisions of
Section 5-1311 of the General Obligations Law of the State of New
York shall not apply to this Agreement.
11.
Default.
11.1 Buyer’s Default . If Buyer shall default under this Agreement
Seller’s only remedies (except as otherwise expressly
provided in this Agreement) shall be to (a) seek specific
performance of Buyer’s obligations under this Agreement or
(b) terminate this Agreement and have Escrow Agent pay the Deposit
to Seller as liquidated damages. In addition, a default by Buyer
under this Agreement shall be deemed a default under Buyer’s
Lease of a portion of the Property and a default by Buyer under
Buyer’s Lease of a portion of the Property shall be deemed a
default under this Agreement.
11.2 Seller’s Default . If Seller shall default under this Agreement
Buyer’s only remedies (except as otherwise expressly provided
in this Agreement) shall be to (a) seek specific performance of
Seller’s obligations under this Agreement or (b) terminate
this Agreement and have Escrow Agent pay the Deposit (subject to
Subsection 6.1.2(d)(v) ) to Buyer, but in no event shall
Buyer seek, or shall Seller be liable for, any damages in
connection with Seller’s default.
11.3 Survival . The provisions of this Article shall survive
the Closing.
12.
Assignment.
12.1 Assignment . Buyer shall not assign Buyer’s interest
under this Agreement without the consent of Seller, and any
purported assignment without Seller’s consent shall be void
and of no force and effect, except that Buyer may, without
Seller’s consent assign Buyer’s interest under this
Agreement to any entity (an “Affiliate”) which,
directly or indirectly, is controlled by, controls, or under common
control with, Buyer, provided that (a) Buyer gives Seller notice of
the assignment not less than five business days prior to the
Closing Date, accompanied by (i) an original assignment signed by
Buyer and the assignee, providing for assignee’s assumption
of all of Buyer’s obligations and liabilities under this
Agreement and (ii) evidence reasonably acceptable to Seller of such
control and (b) Buyer shall not be released from any obligations or
liabilities under this Agreement. Notwithstanding the foregoing,
Buyer shall, if required by Lender, assign this Agreement in
accordance with this Article to an Affiliate which complies with
the Loan Documents, including the Single Purpose Entity and ERISA
provisions, which Affiliate shall be the buyer of the
Property.
13.
Broker .
13.1 Broker . Buyer and Seller each represent to the other
that they dealt with no broker in connection with this transaction
and that each shall pay its own consultants.. Seller and Buyer
shall each indemnify, defend and hold harmless the other from and
against any claim by any broker or other person for a commission or
other compensation in connection with this transaction if such
claim is based in whole or in part upon any act of the indemnifying
party or its representatives, and from all losses, liabilities,
costs and expenses in connection with such claim, including,
reasonable attorneys’ fees.
13.2 Survival . The provisions of this Article shall survive
the Closing or the termination of this Agreement.
14.
Notices.
14.1 Notices . All notices or other communications under this
Agreement must be in writing and shall be deemed to have been
properly given if delivered by (a) messenger (b) registered or
certified mail, postage prepaid, return receipt requested, (c)
reputable overnight delivery service, or (d) telecopy, to the
Notice Addresses. Any party may, by notice given in accordance with
this Section, designate a different address or person for notices
or other communications.
14.2 Effectiveness . Notices and other communications shall be
deemed given on the date the same is received as evidenced by a
receipt or an acknowledgment of receipt (and the failure of a party
to accept a notice or other communication shall be deemed
receipt).
15.
Escrow.
15.1 Deposit . Simultaneously with the execution and delivery
of this Agreement, Buyer has delivered the Deposit to Escrow Agent
(to be deposited in a money market account) and held in escrow by
Escrow Agent on the terms set forth in this Article.
15.2 Payment . Escrow Agent shall pay the Deposit to Seller
or to Buyer, as the case may be, as set forth in this Section
(subject to Section 6.1.2(d)(ii) ).
(a) To Seller, at the Closing.
(b) To Seller, upon receipt of a demand therefor
signed by Seller, stating that Buyer has defaulted under this
Agreement, Seller has terminated this Agreement on account of the
default of Buyer and Seller is entitled under this Agreement to the
Deposit; provided, however, that Escrow Agent shall provide to
Buyer a copy of such demand, and if within 10-days following
Buyer’s receipt of such copy Escrow Agent receives notice of
objection from Buyer, Escrow Agent shall not honor the
demand.
(c) To Buyer, upon receipt of a demand therefor
signed by Buyer, stating that (i) this Agreement has been
terminated and that Buyer is entitled under this Agreement to the
Deposit, or (ii) Seller has defaulted under this Agreement, Buyer
has terminated this Agreement on account of the default and Buyer
is entitled under this Agreement to the Deposit; provided, however,
that Escrow Agent shall provide to Seller a copy of such demand,
and if within 10-days following Seller’s receipt of such copy
Escrow Agent receives notice of objection from Seller, Escrow Agent
shall not honor the demand.
(d) Upon receipt of a demand for the Deposit from
Seller or Buyer pursuant to this Section, Escrow Agent shall
promptly provide a copy to the other party. The other party shall
have the right to object to the delivery of the Deposit by
providing Escrow Agent with notice of objection within 10 days
after its receipt of such copy (time being of the essence). Upon
receipt of a notice of objection, Escrow Agent shall promptly
provide a copy to the other party.
(e) If (i) Escrow Agent receives a timely notice of
objection as provided for in this Section, or (ii) any other
disagreement arises resulting in adverse claims for the Deposit,
whether or not litigation has been instituted, Escrow Agent shall
refuse to comply with any demands for the Deposit and shall
continue to hold the Deposit until Escrow Agent receives either (x)
a notice signed by both Seller and Buyer directing the disbursement
of the Deposit or (y) a final order, which is not (or is no longer)
appealable, of a court of competent jurisdiction, entered in a
proceeding in which Seller, Buyer and Escrow Agent are named as
parties, directing the disbursement of the Deposit, in either of
which events Escrow Agent shall then disburse the Deposit in
accordance with that direction. Escrow Agent shall not be liable
for its refusal to comply with any such demands until it has
received a direction of the nature described in clause (x) or
clause (y) of this paragraph. If Escrow Agent is prohibited from
delivering the full amount of the Deposit pursuant to an order of
any court, Escrow Agent shall have no obligation to take any action
with respect to such order and shall have no liability for the
failure to deliver the full amount of the Deposit.
(f) Notwithstanding the foregoing provisions of
this Article, Escrow Agent shall have the right to resign as Escrow
Agent by (i) depositing the Deposit with the court in which any
litigation with respect to this Agreement or the Deposit is pending
or, if no such litigation is pending, any court of competent
jurisdiction (and commencing an action for interpleader), the costs
thereof to be paid equally by Seller and Buyer or (ii) paying the
Deposit to a substitute Escrow Agent designated by Seller and
Buyer.
(g) Upon delivery or deposit of the Deposit by
Escrow Agent pursuant to this Section, Escrow Agent shall be deemed
released from all liability under this Article except for Escrow
Agent’s gross negligence or willful default.
15.3 Escrow Agent .
(a) Escrow Agent acts hereunder as a depository
only and is not responsible or liable for (i) the validity of any
notice or other communication by Seller or Buyer, (ii) the
collection of any check or other instrument delivered to Escrow
Agent, or (iii) the loss of the Deposit (due to early presentation
for payment or otherwise), except for its gross negligence or
willful default.
(b) Escrow Agent shall not have any
responsibilities except those set forth in this Article. Escrow
Agent has executed this Agreement for the sole purpose of agreeing
to act as Escrow Agent in accordance with this Article.
(c) The provisions of this Article shall create no
right in any party, other than the parties to this Agreement and
their respective successors and assigns, with respect to the
Deposit or otherwise.
(d) Buyer hereby acknowledges that (i) Escrow Agent
has represented Seller in connection with this Agreement, (ii)
Escrow Agent may continue to represent Seller in connection with
this Agreement and the transactions contemplated by this Agreement,
and (iii) if any dispute or litigation arises under this Agreement
(including any dispute or litigation involving the Deposit), Escrow
Agent may represent Seller in connection therewith.
15.4 Litigation . If any litigation arises under this Agreement
with respect to the Deposit or otherwise, notwithstanding any
provision of this Agreement to the contrary (including any
provision limiting the liability of Seller or Buyer), all costs and
expenses of the litigation (including the reasonable attorneys and
witness fees incurred by the other party and all costs and expenses
of Escrow Agent, including reasonable attorneys fees) shall be
borne by whichever of Seller or Buyer is the losing party (and if
none, then each shall bear its own costs and expenses, and Escrow
Agent’s costs and expenses shall be paid equally by Seller
and Buyer).
16.
Miscellaneous.
16.1 Governing Law; Inte
