\n20. FIRPTA COMPLIANCE……………………………………………. 29<\/p>\n21. INTENTIONALLY OMITTED………………………………………… 30<\/p>\n
22. ENTIRE AGREEMENT…………………………………………….. 30<\/p>\n
23. AMENDMENTS………………………………………………….. 30<\/p>\n
24. WAIVER……………………………………………………… 30<\/p>\n
25. PARTIAL INVALIDITY…………………………………………… 30<\/p>\n
26. SECTION HEADINGS…………………………………………….. 31<\/p>\n
27. GOVERNING LAW……………………………………………….. 31<\/p>\n
28. PARTIES; ASSIGNMENT AND RECORDING……………………………… 31<\/p>\n
29. CONFIDENTIALITY AND PRESS RELEASES…………………………….. 31<\/p>\n
30. FURTHER ASSURANCES…………………………………………… 32<\/p>\n
31. THIRD PARTY BENEFICIARY………………………………………. 32<\/p>\n
32. JURISDICTION AND SERVICE OF PROCESS……………………………. 32<\/p>\n
33. WAIVER OF TRIAL BY JURY………………………………………. 33<\/p>\n
34. MISCELLANEOUS; DEFINITIONS……………………………………. 33
\n<\/c><\/s><\/table>\n
-ii-<\/p>\n
Schedules<\/p>\n
A. Description of the Land
\nB. Easements, Conditions, Restrictions and Encumbrances
\nC. List of Employees
\nC-1 Contracts or Agreements for the Provision of Building Services to Be
\n Terminated
\nD. List of Leases
\nE. List of Contracts
\nF. List of Security Deposits
\nG. Arrearage Schedule
\nH. Litigation
\nI. Violations
\nJ. Employment Agreements
\nK. Environmental Reports
\nL. Engineering Reports
\nM. Tenant Inducement Costs
\nN. Leasing Commissions
\nO. Reports of All Pleadings in Connection with the Check Cashing Litigation<\/p>\n
Exhibits<\/p>\n
1. Form of Deed
\n2. Form of Bill of Sale
\n3. Form of Notice to Tenants
\n4. Form of FIRPTA Affidavit
\n5. Form of Assignment and Assumption of Leases and Contracts
\n6. Form of General Assignment and Assumption Agreement
\n7. Form of First Amendment to Zoning Lot Development Agreement<\/p>\n
-iii-<\/p>\n
PURCHASE AND SALE AGREEMENT (this “Agreement”) made as of the 2nd day
\n ———
\nof February, 2000 between NORTHSTAR 485 5TH HOLDING LLC , a Delaware limited
\nliability company, having an address at c\/o NorthStar Capital Investment Corp.,
\n527 Madison Avenue, 16th Floor, New York, New York 10022 (“Seller”) and TOMMY
\n ——
\nHILFIGER U.S.A., INC., a Delaware corporation, having an address at 25 West
\n39\/th\/ Street, New York, New York 10018 (“Purchaser”).
\n ——— <\/p>\n
W I T N E S S E T H:
\n – – – – – – – – – –<\/p>\n
WHEREAS, Seller is the owner and holder of the fee simple estate in
\nand to that certain plot, piece and parcel of land (the “Land”) known as 485
\n —-
\nFifth Avenue, New York, New York and more particularly described in Schedule A
\n ———-
\nannexed hereto, together with the building and all other improvements
\n(collectively, the “Building”) located on the Land (the Building and the Land
\n ——–
\nare hereinafter sometimes collectively referred to as the “Premises”);
\n ——– <\/p>\n
WHEREAS, Seller desires to cause the sale, assignment and transfer of
\nits interests in and to the Premises to Purchaser in accordance with the terms
\nand provisions of this Agreement, and Purchaser desires to purchase such
\ninterests from Seller upon the terms more particularly set forth in this
\nAgreement;<\/p>\n
NOW, THEREFORE, in consideration of the foregoing and the mutual
\ncovenants and agreements herein contained, the parties hereto covenant and agree
\nas follows:<\/p>\n
1. PURCHASE AND SALE.
\n —————– <\/p>\n
(a) Seller shall sell, assign and convey to Purchaser, and
\nPurchaser shall purchase and assume from Seller, subject to the terms and
\nconditions of this Agreement, all of Seller’s right, title and interest in and
\nto and under (i) the Premises, (ii) the fixtures, furnishings, furniture,
\nequipment, machinery, inventory, appliances and other tangible and intangible
\npersonal property owned by Seller and located at the Premises and used in
\nconnection with the operation thereof (collectively, the “Personalty”); (iii)
\n ———-
\nall leases, licenses and other occupancy agreements demising space at the
\nPremises, together with all amendments and modifications thereof and supplements
\nrelating thereto (collectively, “Leases”) and all service, maintenance, supply
\n ——
\nand other agreements relating to the operation of the Premises, together with
\nall modifications and amendments thereof and supplements relating thereto, but
\nspecifically excluding the contracts or agreements for the provision of building
\nservices set forth on Exhibit C-1 (collectively, the “Contracts”) in effect on
\n ———
\nthe Closing Date (subject to Section 7 hereof); and (iv) if any, to any land
\n ———
\nlying in the bed of any street, road or avenue, opened or proposed, adjoining
\nthe Premises to the center line thereof, including any right of Seller to any
\nunpaid award by reason of any taking by condemnation and\/or for any damage to
\nthe Premises by reason of change of grade of any street or highway. Seller shall
\ndeliver at no<\/p>\n
additional cost to Purchaser, at Closing (as hereinafter defined), or
\nthereafter, on demand, any documents that Purchaser may reasonably require for
\nthe conveyance of such title and the assignment and collection of such award or
\ndamages. The items described in clauses (i), (ii) (iii) and (iv) above shall be
\nreferred to herein collectively as the “Property.”
\n ——– <\/p>\n
(b) The parties hereto acknowledge and agree that the value of
\nthe Personalty is de minimis and no part of the Purchase Price (as hereinafter
\n — ——-
\ndefined) is allocable thereto.<\/p>\n
2. PURCHASE PRICE AND DEPOSIT.
\n ————————– <\/p>\n
The purchase price to be paid by Purchaser to Seller for the Property
\n(the “Purchase Price”) is THIRTY SEVEN MILLION, TWO HUNDRED FIFTY THOUSAND AND
\n ————–
\nNO\/100 DOLLARS ($37,250,000), subject to apportionment as provided in Section 5
\n ———
\nbelow, payable as follows:<\/p>\n
(a) Simultaneously with the execution of this Agreement by
\nPurchaser, Purchaser is delivering to Battle Fowler LLP, as escrow agent (the
\n“Escrow Agent”) to be held in escrow in accordance with Section 21 hereof, the
\n ————
\nsum of TWO MILLION AND NO\/100 DOLLARS ($2,000,000.00) (such sum as same may be
\nincreased pursuant to Section 17 hereof, and all interest accrued thereon,
\ncollectively, the “Deposit”) by unendorsed bank check issued by a bank which is
\n ——-
\na member of the New York Clearinghouse Association and payable directly to the
\norder of Escrow Agent or by wire transfer of immediately available funds to an
\naccount (the “Escrow Account”) designated and maintained by Escrow Agent. Except
\n ————–
\nas otherwise expressly provided herein, the Deposit shall be non-refundable.<\/p>\n
(b) Upon receipt by Escrow Agent of the Deposit, to the extent
\npossible, Escrow Agent shall cause the same to be invested in 30-day (or
\nshorter) United States Treasury instruments. Any amount that cannot be so
\ninvested (not to exceed $100,000) may be deposited in a federally insured
\ninterest-bearing account selected by Escrow Agent (it being agreed that Escrow
\nAgent shall not be liable for the amount of any interest or loss of principal
\nthat results from any such investments). If the Closing occurs, the interest on
\nthe Escrow Deposit, if any, shall be paid to Seller (without credit against the
\nPurchase Price) and, if the Closing does not occur and this Agreement is
\nterminated, then the interest earned on the Escrow Deposit shall be paid to the
\nparty entitled to receive the Deposit as provided in this Agreement.<\/p>\n
(c) On the Closing Date, Purchaser shall pay to Seller an amount
\nequal to the Purchase Price less the amount of the Deposit, subject to the
\nprorations and adjustments set forth in Section 5 hereof and subject to a credit
\n ———
\nin the amount of the Assumed Debt Credit (as defined in Section 2(d) hereof) if
\n ————
\napplicable pursuant to Section 2(d) below, <\/p>\n
-2-<\/p>\n
plus any other amounts required to be paid to Seller by Purchaser at the
\nClosing, in immediately available funds as more particularly set forth in
\nSection 2(c) below.<\/p>\n
(d) All monies payable by Purchaser under this Agreement, unless
\notherwise specified in this Agreement, shall be paid by (i) unendorsed bank
\ncheck(s) issued by a bank which is a member of the New York Clearinghouse
\nAssociation and payable directly to the order of Seller, or to such person or
\nentity or persons or entities as Seller may designate in writing at least
\nthree(3) business days prior to the Closing Date (as defined in Section 17
\n ———-
\nhereof), or (ii) upon three(3) business days prior notice given by Seller to
\nPurchaser, by Purchaser causing said amount to be transferred in immediately
\navailable federal funds for credit to such bank account or accounts, and divided
\ninto such amounts as may be required to consummate the transactions contemplated
\nby this Agreement, or (iii) any combination of items (i) and (ii) above as
\nSeller may direct by notice to Purchaser at least three(3) business days prior
\nto the Closing Date.<\/p>\n
(e) Purchaser shall use diligent efforts to obtain prior to the
\nClosing, at no cost and expense to Seller, all consents of Lender (as defined
\nbelow) necessary in connection with the assumption by Purchaser of the Assumed
\nDebt and Seller agrees to fully cooperate and work with Purchaser to obtain such
\nconsent. If the parties are able to obtain Lender’s consent prior to the
\nClosing, then, on the Closing Date, upon delivery of all of the items to Seller
\nby Purchaser pursuant to Section 16 hereof, Purchaser shall receive a credit
\n(the “Assumed Debt Credit”) against the Purchase Price for the portion of the
\n ——————-
\nPurchase Price equal to the sum of (i) the outstanding principal balance, and
\n(ii) all accrued unpaid interest thereon, by virtue of Purchaser assuming that
\ncertain loan (the “Assumed Debt”) as evidenced by that certain Note
\n ————
\nConsolidation and Modification Agreement (the “Note”) dated November 17, 1998
\n —-
\nexecuted between Seller and The Mutual Life Insurance Company of New York, now
\nknown as, MONY Life Insurance Company (“Lender”) in the original principal sum
\n ——
\nof $20,500,000 and secured, inter alia, by that certain an Amended Restated and
\n ———-
\nConsolidated Mortgage, Assignment of Leases and Rents and Security Agreement
\ndated of even date between Seller and Lender (the “Mortgage”) which Mortgage is
\n ——–
\nan encumbrance upon the Premises. The Note, the Mortgage and all other documents
\nexecuted in connection with the Assumed Debt (other than any guarantees or
\npledge agreements given in connection therewith) are collectively hereinafter
\nreferred to as the “Assumed Debt Documents.” It is agreed and understood that
\n ———————-
\nPurchaser shall reimburse Seller on the Closing Date in an amount equal to all
\nreserves and\/or escrows (collectively, the “Reserves”), including the Initial
\n ——–
\nCapital Improvement Escrow (as defined in the Assumed Debt Documents) required
\nby Lender to be deposited by Seller in connection with the Assumed Debt.
\nNotwithstanding the foregoing, Seller shall have no obligation hereunder to
\nobtain Lender’s consent for the assumption of the Assumed Debt by Purchaser nor
\nshall Seller have any liability whatsoever to Purchaser in the event that
\nPurchaser is unable to obtain such consent prior to Closing, it being agreed to
\nby Purchaser that Purchaser’s obligations hereunder are in no way contingent
\nupon or conditioned<\/p>\n
-3-<\/p>\n
upon its assumption of the Assumed Debt or its ability to obtain Lender’s
\nConsent in connection therewith inasmuch as Purchaser acknowledges that its
\nobligations hereunder to purchase the Premises are not contingent upon or
\nconditioned upon obtaining financing. If, in connection with an assignment or an
\nassumption by Purchaser of the Assumed Debt, Seller is unable to obtain a
\nrelease from the Lender of Seller’s obligations under the Assumed Loan (as well
\nas the obligations of any parties who delivered guaranties or indemnities in
\nconnection with the Assumed Loan), then Seller shall discharge the Assumed Loan
\nas aforesaid in lieu of assigning the same to Purchaser.<\/p>\n
As used in this Agreement, the term “business day” shall mean every
\n ————
\nday other than Saturdays, Sundays, all days observed by the federal or New York
\nState government as legal holidays and all days on which commercial banks in New
\nYork State are required by law to be closed.<\/p>\n
(f) All interest earned on the amount delivered pursuant to
\nSection 2(a) hereof shall be reported to the IRS, and to any other taxing
\nauthority with jurisdiction (if any), as income of the party ultimately entitled
\nto the Deposit. Seller and Purchaser, as appropriate, shall promptly execute all
\nforms reasonably required by the other party to effectuate the intent of this
\nSection, including, without limitation, Form W-9.<\/p>\n
3. STATUS OF THE TITLE.
\n ——————- <\/p>\n
Subject to the terms and provisions of this Agreement, Seller’s
\ninterest in the Premises shall be sold, assigned and conveyed by Seller to
\nPurchaser, and Purchaser shall accept same, subject only to the following
\n(collectively, the “Permitted Encumbrances”):
\n ———————- <\/p>\n
(a) the state of facts disclosed on the survey prepared by Henry
\nJ. McGuigan P.C. dated November 13, 1998 and any further state of facts a
\ncurrent survey of the Premises or a personal inspection would disclose;<\/p>\n
(b) the standard printed exclusions from coverage contained in
\nthe ALTA form of owners title policy currently in use in New York, with the
\nstandard New York endorsement, together with the easements, conditions,
\nrestrictions, agreements, encumbrances and other matters as set forth on
\nSchedule B annexed hereto;
\n———- <\/p>\n
(c) Non-Objectionable Encumbrances (as hereinafter defined); and
\nany liens, encumbrances or other title exceptions approved or waived by
\nPurchaser as provided in Section 4;
\n ——— <\/p>\n
-4-<\/p>\n
(d) Property Taxes (as hereinafter defined) which are a lien but
\nnot yet due and payable, subject to proration in accordance with Section 5
\n ———
\nhereof;<\/p>\n
(e) any laws, rules, regulations, statutes, ordinances, orders
\nor other legal requirements affecting the Premises, including, without
\nlimitation, those relating to zoning and land use;<\/p>\n
(f) rights of record of any utility company and easements and
\nfranchises for electricity, water, steam, gas, telephone or other service or the
\nright to use and maintain poles, lines, wires, cables, pipes, boxes and other
\nfixtures and facilities in, over, under and upon the Premises;<\/p>\n
(g) any installment not yet due and payable of assessments
\nimposed after the date hereof and affecting the Premises or any portion thereof,<\/p>\n
(h) all violations of laws, rules, regulations, statutes,
\nordinances, orders or requirements, now or hereafter issued or noted (including,
\nwithout limitation, those attached hereto as Schedule I) (each a “Violation” and
\n ———- ———
\ncollectively “Violations”) other than those which are the responsibility of the
\n ———-
\ntenant under the Hilfiger Lease to cure or which result from any act or failure
\nto act by the tenant under the Hilfiger Lease (each a “Hilfiger Violation”);
\n ——————
\nprovided, however, if a new violation (other than a Hilfiger Violation, comes of
\nrecord between the date hereof and the Closing Date (a “New Seller Violation”)
\n ——————–
\n(it being agreed that any other violation is a “Permitted Encumbrance”), Seller
\n ———————
\nshall have the right but not the obligation to cure the same, but if Seller
\nelects not to cure the same, Purchaser shall take title to the Premises subject
\nto such New Seller Violation, in which event, the Purchase Price shall be
\nreduced by the amount necessary to remove same; provided that if the cost to
\ncure or remove such New Seller Violation is in excess of $25,000 then Seller may
\nelect to terminate this Agreement, in which event Seller shall deliver the
\nDeposit to Purchaser, after which no party hereto shall have any rights or
\nobligations hereunder except as expressly provided otherwise, provided that in
\nsuch an event Purchaser may elect, at its option, to close without such New
\nSeller Violation being cured and receive a $25,000 credit against the Purchase
\nPrice. Purchaser agrees that neither it nor any of its officers, directors,
\nemployees, agents or anyone acting through or at their direction shall contact
\nthe New York City Department of Buildings or any other New York City agency with
\nrespect to any violations without Seller’s prior written consent which may be
\nwithheld in Seller’s sole and absolute discretion, provided Purchaser may cause
\nthe Title Company to perform normal departmental searches with respect to
\nviolations on the Property. If Purchaser breaches its obligation to refrain from
\ncontacting the New York City Department of Buildings or any other New York City
\nagency as aforesaid, all violations now or hereafter noted against or
\nencumbering the Premises shall be deemed “Permitted Encumbrances”; and<\/p>\n
-5-<\/p>\n
(i) the rights and interests held by tenants under the Leases in
\neffect at Closing.<\/p>\n
4. TITLE INSURANCE, LIENS.
\n ———————- <\/p>\n
(a) (i) Purchaser has ordered, at Purchaser’s expense, a
\ntitle commitment (the “Commitment”) for an owner’s policy of title insurance
\n ———-
\nwith respect to Purchaser’s acquisition of the Premises from Commonwealth Land
\nTitle Insurance Company (the “Title Company”), a copy of which shall be
\n ————-
\nfurnished to Seller and Seller’s attorneys within five (5) business days after a
\nfully executed copy of this Agreement is received by Purchaser. Within five (5)
\nbusiness days after receipt thereof by Seller and Seller’s attorneys, time being
\nof the essence, Purchaser or Purchaser’s attorneys shall furnish to Seller and
\nSeller’s attorneys a written statement setting forth such exceptions to title
\nappearing on such Commitment which Purchaser claims are not Permitted
\nEncumbrances (the “Title Objections”); provided, however, that in no event shall
\n —————–
\nany lien, encumbrance or other exception arising as a result of any act or
\nomission of Purchaser or anyone acting on behalf of Purchaser be deemed a Title
\nObjection. Unless Purchaser or Purchaser’s attorney shall timely notify Seller
\nand Seller’s attorney of any Title Objections, all matters which are set forth
\nin any such Commitment shall be deemed to constitute additional Permitted
\nEncumbrances. If Purchaser delivers such objection notice within the time period
\naforesaid, any liens, encumbrances and other title exceptions appearing on such
\nCommitment which are not expressly objected to in such notice shall not
\nconstitute Title Objections and shall be deemed Permitted Encumbrances.<\/p>\n
(ii) If, prior to the Closing Date, the Title Company
\nshall deliver any update to the Commitment which discloses additional liens,
\nencumbrances or other title exceptions which were not disclosed by the
\nCommitment) (each, an “Update Exception”), then Purchaser shall have until the
\n —————-
\nearlier of (x) two (2) business days after delivery of such update or (y) the
\nbusiness day immediately preceding the Closing Date, time being of the essence
\n(the “Update Objection Date”) to deliver notice to Seller objecting to any of
\n ———————
\nthe Update Exceptions. If Purchaser fails to deliver such objection notice by
\nthe Update Objection Date, Purchaser shall be deemed to have waived its right to
\nobject to any Update Exceptions (and the same shall not be deemed Title
\nObjections and shall be deemed Permitted Encumbrances). If Purchaser shall
\ndeliver such objection notice by the Update Objection Date, any Update
\nExceptions which are not objected to in such notice shall not constitute Title
\nObjections and shall be deemed Permitted Encumbrances.<\/p>\n
(iii) If, at the Closing Date, the Title Company shall
\ndeliver any update to the Commitment which discloses additional liens,
\nencumbrances or other title exceptions which were not disclosed by the
\nCommitment or any updates delivered pursuant to <\/p>\n
-6-<\/p>\n
subparagraph (ii) above, then Seller may adjourn the Scheduled Closing Date for
\na reasonable period or periods, not to exceed ninety (90) days (“Title Cure
\n ———-
\nPeriod”), in order to attempt to eliminate such exceptions.
\n——<\/p>\n
(iv) Purchaser shall not be entitled to object to, and
\nshall be deemed to have approved, any liens, encumbrances or other title
\nexceptions (and the same shall not constitute Title Objections but shall be
\ndeemed Permitted Encumbrances) (1) over which the Title Company is willing to
\ninsure (without additional cost to Purchaser), (2) against which the Title
\nCompany is willing to provide affirmative insurance (without additional cost to
\nPurchaser), or (3) which will be extinguished upon the transfer of the Property
\n(collectively, the “Non-Objectionable Encumbrances”). Notwithstanding anything
\n ——————————
\nto the contrary contained herein, if Seller is unable to eliminate the Title
\nObjections set forth in the Commitment or any update thereto by the Scheduled
\nClosing Date (as hereinafter defined), unless the same are waived by Purchaser
\nwithout any abatement in the Purchase Price, Seller may, upon at least two (2)
\nbusiness days’ prior notice (“Title Cure Notice”) to Purchaser (except with
\n ——————
\nrespect to matters first disclosed during such two (2) business day period, as
\nto which matters notice may be given at any time through and including the
\nScheduled Closing Date) adjourn the Scheduled Closing Date for the Title Cure
\nPeriod, in order to attempt to eliminate such exceptions.<\/p>\n
(b) If Seller is unable to eliminate any Title Objection within
\nthe Title Cure Period, unless the same is waived by Purchaser, then, Purchaser
\nmay (i) accept the Property subject to such Title Objection without abatement of
\nthe Purchase Price, in which event (x) such Title Objection shall be deemed to
\nbe, for all purposes, a Permitted Encumbrance, (y) Purchaser shall close
\nhereunder notwithstanding the existence of same, and (z) Seller shall have no
\nobligations whatsoever after the Closing Date with respect to Seller’s failure
\nto cause such Title Objection to be eliminated, or (ii) terminate this Agreement
\nby written notice given to Seller and Escrow Agent within five (5) business days
\nfollowing expiration of the Title Cure Period, time being of the essence, in
\nwhich event Purchaser shall be entitled to a return of the Deposit. If Purchaser
\nshall fail to deliver the termination notice described in clause (ii) within the
\nfive (5) business day period described therein, TIME BEING OF THE ESSENCE,
\nPurchaser shall be deemed to have made the election under clause (i). Upon the
\n ———-
\ntimely giving of any termination notice under clause (ii), this Agreement shall
\n ———–
\nterminate and upon return of the Deposit to Purchaser, neither party hereto
\nshall have any further rights or obligations hereunder other than those which
\nare expressly provided to survive the termination hereof.<\/p>\n
(c) It is expressly understood that in no event shall Seller be
\nrequired to bring any action or institute any proceeding, or to otherwise incur
\nany costs or expenses in order to attempt to eliminate any Title Objections or
\nto otherwise cause title in the Premises to be in accordance with the terms of
\nthis Agreement on the Closing Date; provided, however, that Seller shall, upon
\nconsummation of the Closing, cause any Title Objections such as<\/p>\n
-7-<\/p>\n
mortgages (excluding the Assumed Debt, in the event that Purchaser assumes the
\nAssumed Debt), taxes, judgments or other liens or encumbrances (collectively
\n“Liens”) voluntarily created by Seller subsequent to the date hereof encumbering
\n —–
\nthe Premises to be, at Purchaser’s election upon notice given to Seller at least
\nfifteen (15) business days prior to Closing, either (i) assigned to Seller or to
\nSeller’s lender or any other designee in accordance with and subject to the
\nprovisions of Section 4(f), below, or (ii) discharged of record. Notwithstanding
\nthe previous sentence, Seller agrees to remove through payment, “bonding over”
\nor depositing a sufficient amount with the Company in escrow for removal from
\nthe Title Policy all Liens in a liquidated amount, not to exceed $75,000.00 (as
\nsuch amount may be reduced by an amount equal to 21\/34 of any amounts either
\nexpended by Purchaser to cure Violations or New Seller Violations or credited to
\nPurchaser in either case pursuant to Section 3(h) above), provided however,
\nthat, if the Company will “insure over” or “omit” any such Lien based upon an
\nindemnity from Seller or an affiliate of Seller, Seller shall not be required to
\nremove same through payment, “bonding over” or depositing a sufficient amount
\nwith the Company in escrow for removal. If, in connection with an assumption by
\nPurchaser of the Assumed Debt by Purchaser, Seller is unable to obtain a release
\nfrom Lender of Seller’s obligations under the Assumed Debt (as well as the
\nobligations of any parties who have delivered guarantees or indemnities in
\nconnection with the Assumed Debt), then Seller shall discharge the Assumed Debt
\n(or cause same to be assigned to Seller or to Seller’s lender or any other
\ndesignee in accordance with and subject to the provisions of Section 4(f),
\nbelow).<\/p>\n
(d) If Seller shall have adjourned the Scheduled Closing Date in
\norder to cure Title Objections in accordance with the provisions of this Section
\n ——-
\n4 (it being understood that Seller is under no obligation to effect such cure),
\n–
\nSeller shall, upon the satisfactory cure thereof, promptly reschedule the
\nScheduled Closing Date, upon at least ten (10) business days’ prior notice to
\nPurchaser (the “New Closing Notice”); it being agreed, however, that if any
\n ——————
\nmatters which are Title Objections arise between the date the New Closing Notice
\nis given and the rescheduled Scheduled Closing Date, Seller may again adjourn
\nthe Closing for a reasonable period or periods, in order to attempt to cause
\nsuch exceptions to be eliminated by sending Purchaser a Title Cure Notice, it
\nbeing agreed, however, that Seller shall not be entitled to adjourn the
\nScheduled Closing Date pursuant to this Section 4 for a period or periods in
\n ———
\nexcess of ninety (90) days in the aggregate.<\/p>\n
(e) If the Commitment discloses judgments, bankruptcies or other
\nreturns against other persons having names the same as, or similar to, that of
\nSeller, Seller, on request, shall deliver to the Title Company affidavits
\nreasonable satisfactory to Title Company showing that such judgments,
\nbankruptcies or other returns are not against Seller in order to induce the
\nTitle Company to omit exceptions with respect to such judgments, bankruptcies or
\nother returns or to insure over same.<\/p>\n
-8-<\/p>\n
(f) If Purchaser has not received Lender Consent, Seller shall
\ncause the Assumed Debt and any liens voluntarily created by Seller subsequent to
\nthe date hereof encumbering the Premises to be discharged of record.<\/p>\n
5. APPORTIONMENTS.
\n ————– <\/p>\n
(a) The following shall be apportioned between Seller and
\nPurchaser on a per diem basis as of the close of business on the day immediately
\npreceding the Closing Date (the “Apportionment Date”):
\n —————— <\/p>\n
(i) Prepaid rents, fixed rents and additional rents
\npayable pursuant to the Leases (including, without limitation, operating expense
\nescalation payments, real estate tax escalation payments and percentage rent, if
\nany, payable under the Leases) (collectively, “Rents”) to be apportioned in
\n —–
\naccordance with Section 5(b) below;
\n ———— <\/p>\n
(ii) Real estate taxes, sewer rents and taxes, water rates
\nand charges (to the extent not accounted for pursuant to clauses (i) and (iii)
\nhereof or to the extent not billed to and payable directly by any Tenant), vault
\ncharges and taxes, and any other governmental taxes and charges levied or
\nassessed against the Real Property (collectively, “Property Taxes”), on the
\n ————–
\nbasis of the respective periods for which each is assessed or imposed or on the
\nbasis of meter readings, to be apportioned in accordance with this Section 5;
\n ——— <\/p>\n
(iii) Charges (to the extent not accounted for pursuant to
\nclauses (i) and (ii) above or to the extent not billed to and payable directly
\nby any Tenant) for electricity, steam, gas and any other utilities
\n(collectively, “Utilities”) made by the utility companies servicing the Premises
\n ———
\nto be apportioned in accordance with Section 5(e) hereof, and transferable
\n ————
\nutility deposits, if any, but all amounts refundable under unassigned or
\nunassignable utility agreements shall remain the property of Seller;<\/p>\n
(iv) Fuel (to the extent not accounted for pursuant to
\nclause (i), (ii) or (iii) hereof), if any, based on a reading Seller will
\nendeavor to have completed within five (5) days prior to the Closing Date or, if
\nnot so completed, as reasonably estimated by Seller’s supplier, at current cost,
\ntogether with any sales taxes payable in connection therewith, if any. A letter
\nfrom Seller’s fuel supplier shall be conclusive evidence as to the quantity of
\nfuel on hand and the current cost therefor;<\/p>\n
(v) With respect to the Assumed Debt, all interest
\npayable on the Note attributable to the month in which the Closing shall occur;<\/p>\n
(vi) Administrative charges on the cash security deposits
\nheld pursuant to the Leases (to the extent permitted by law or by the terms of
\nthe applicable Lease);<\/p>\n
-9-<\/p>\n
(vii) prepaid fees for licenses and other permits
\nassigned to Purchaser at the Closing;<\/p>\n
(viii) any amounts prepaid or payable by Seller of the
\nProperty under the Contracts;<\/p>\n
(ix) all other operating expenses, prepaid or payable,
\nwith respect to the Premises; and<\/p>\n
(x) such other items as are customarily apportioned in
\naccordance with real estate closings of commercial properties in the Borough of
\nManhattan.<\/p>\n
(b) (i) All Rents paid or payable for the billing period in
\nwhich the Closing Date occurs as set forth on a statement provided by Seller to
\nPurchaser shall be apportioned between Seller and Purchaser on a per-diem basis
\nas of the Apportionment Date. In the event that such statement evidences any
\npast due Rents owing by any tenant, for any billing period prior to the billing
\nperiod in which the Closing date occurs (“Past Due Rents”), such Past Due Rents
\n ————–
\n(other than Past Due Rents accrued under that certain lease dated as of July 5,
\n1995, as thereafter amended, between Seller, as Landlord, and Purchaser, as
\nTenant, demising a portion of the Premises (the “Hilfiger Lease”)) shall be
\n ————–
\napportioned on the basis of the period for which the same is payable and if, as
\nand when collected, as follows:<\/p>\n
(ii) Purchaser shall use its commercially reasonable
\nefforts to collect Past Due Rent allocable to the period commencing January 1,
\n2000 and continuing up to and including the Closing Date (the “Collection
\n ———-
\nPeriod”) on behalf of Seller as Seller shall direct, using counsel selected by
\n——
\nSeller and at Seller’s sole cost and expense. In the course of pursuing the
\ncollection of Past Due Rent in accordance with the provisions of the foregoing
\nsentence, Purchaser shall seek any and all remedies against the debtors of such
\nPast Due Rent which remain uncollected after Closing which may be requested by
\nSeller, but Purchaser is not obligated to bring eviction proceedings against a
\ndelinquent tenant, unless it decides to do so in Purchaser’s sole discretion.
\nAny Rent received from any such tenant after the Closing Date shall be applied
\nin the following order of priority: (1) first, to payment of the current Rent
\nand reimbursements then due for the month in which the Closing Date occurs, this
\namount to be apportioned between Purchaser and Seller as set forth in Section
\n5(b)(i) hereof; and (2) second, to delinquent Rent and reimbursements arising
\nprior to Closing and after Closing which shall be apportioned pro rata between
\n — —-
\nSeller and Purchaser on a “50\/50” basis, to be applied to the most recent pre-
\nClosing arrears first, and then to the next most recent pre-Closing arrears and
\ncontinuing in such a manner until all arrears allocable to the Collection Period
\nare paid in full, it being agreed by and between the parties hereto that Seller
\nshall retain all rights to pursue arrears allocable to the period prior to the
\nCollection Period, and, upon request of Seller, Purchaser shall cooperate with
\nSeller with respect to the collection thereof,<\/p>\n
-10-<\/p>\n
at Seller’s sole cost and expense. Any sums received by Seller or Purchaser to
\nwhich the other is entitled shall be held in trust, and the party receiving the
\nsum due the other shall remit to the other any such sums received to which the
\nother is entitled within five (5) business days after receipt thereof. The cost
\nand expense of collecting same (including the allocable share of property
\nmanagement fees) shall be allocated between the parties in proportion to the
\namount of rent each party is entitled to receive pursuant to this Section 5.<\/p>\n
(c) Any prepaid Rents shall be retained by Seller and the amount
\nthereof shall be credited to Purchaser at Closing.<\/p>\n
(d) Past Due Rent, if any, accrued under the Hilfiger Lease shall be
\ncredited to Seller at Closing.<\/p>\n
(e) Seller expressly agrees that if Seller receives any amounts after
\nthe Closing Date which relate to the billing period in which the Closing Date
\noccurs, Seller shall apportion such amounts in accordance with the terms of this
\nSection 5 and deliver to Purchaser the amount, if any, to which Purchaser is
\n———
\nentitled pursuant to the terms hereof within five (5) business days following
\nreceipt thereof.<\/p>\n
(i) If any amount payable under any Lease, other than fixed
\nrents, to be apportioned hereunder (including, without limitation, percentage
\nrents, escalation payments, whether for taxes, utilities, other operating
\nexpenses or otherwise) has not been determined prior to the Closing Date, such
\npayment shall be apportioned on a per diem basis (y) in a manner to be agreed
\nupon in good faith by Seller and Purchaser before the Closing and (z) if Seller
\nand Purchaser are unable to reach an agreement pursuant to clause (y), based on
\nthe amount of such payment due during the previous year of the applicable Lease
\nplus the rate of increase in such payment since such previous year. Such
\napportionments shall be adjusted within 120 days subsequent to the Closing Date
\nand shall be set forth on the Final Closing Statement (as defined in Section
\n ——-
\n5(k) hereof). To the extent that any apportionments based on the actual amounts
\n—-
\ndue may only be determined after the completion of the Final Closing Statement,
\nthen the parties agree that such apportionments shall be adjusted after the
\ncompletion of the Final Closing Statement, but not later than ten (10) business
\ndays of such final determination under the Leases, and at such time Purchaser
\nshall furnish Seller with statements in reasonable detail showing the
\ncalculation of such apportionments, rents and payments. Seller shall have the
\nright to audit Purchaser’s books and records with respect to such items being
\napportioned. Each of Seller and Purchaser will promptly remit to the other party
\nany amount in excess of the amount to which it is entitled on account of
\noperating expenses in accordance with the foregoing within five (5) business
\ndays after a final determination of operating expenses.<\/p>\n
-11-<\/p>\n
(f) Property Taxes shall be apportioned on the basis of the fiscal
\nperiod for which assessed. If the Closing Date shall occur either before an
\nassessment is made or a tax rate is fixed for the tax period in which the
\nClosing Date occurs, the apportionment of such Property Taxes based thereon
\nshall be made at the Closing Date by applying the tax rate for the preceding
\nyear to the latest assessed valuation, but, promptly after the assessment and\/or
\ntax rate for the current year are fixed, the apportionment thereof shall be
\nrecalculated and Seller or Purchaser, as the case may be, shall promptly make an
\nappropriate payment to the other based on such recalculation.<\/p>\n
(g) If there are water meters on the Premises, the unfixed water
\nrates and charges and sewer rents and taxes covered by meters, if any, shall be
\napportioned (i) on the basis of an actual reading done prior to the
\nApportionment Date, or (ii) if such reading has not been made, on the basis of
\nthe last available reading. If the apportionment is not based on an actual
\ncurrent reading, then upon the taking of a subsequent actual reading, such
\napportionment shall be readjusted and Seller or Purchaser, as the case may be,
\nshall promptly deliver to the other the amount determined to be due upon such
\nreadjustment.<\/p>\n
(h) Utilities shall be apportioned on the basis of actual current
\nreadings or, if such readings have not been made, on the basis of the most
\nrecent bills that are available. If any apportionment is not based on an actual
\ncurrent reading, then, upon the taking of a subsequent actual reading, such
\napportionment shall be readjusted and Seller or Purchaser, as the case may be,
\nshall promptly deliver to the other the amount determined to be due upon such
\nreadjustment.<\/p>\n
(i) At the Closing, Seller shall receive a credit for the (i) amount
\nof the Reserves (only if Purchaser has assumed the Assumed Debt), and (ii) the
\ncost to Seller of all cleaning and other supplies in unopened cartons or
\npackages located at the Premises based on invoices therefor.<\/p>\n
(j) Purchaser shall have no right to receive any rental insurance
\nproceeds which relate to the period prior to the Closing Date and, if any such
\nproceeds are delivered to Purchaser, Purchaser shall, within five (5) business
\ndays following receipt thereof, pay the same to Seller.<\/p>\n
(k) Purchaser agrees that it shall be responsible for the payment of
\n(i) all Tenant Inducement Costs (as hereinafter defined) and leasing commissions
\nwhich become due and payable (whether before or after the Closing Date) arising
\nfrom, relating to or in connection with (A) any renewals, modifications,
\namendments or expansions of existing Leases or other supplementary agreements
\nrelating thereto entered into between the date hereof and the Closing Date
\n(which either (X) are provided for in the existing Leases or other supplementary
\nagreements relating thereto or (Y) have been consented to in writing by<\/p>\n
-12-<\/p>\n
Purchaser, such consent not to be unreasonably withheld) and (B) any new Leases
\nentered into between the date hereof and the Closing Date, in each case which
\nhave been approved in writing (or deemed approved) by Purchaser to the extent
\nrequired pursuant to the terms hereof; and (ii) all Tenant Inducement Costs and
\nleasing commissions which become due and payable from and after the Closing Date
\narising from, relating to or in connection with any Leases (including, without
\nlimitation, the existing Leases and the instruments described in clauses (A) and
\n(B) above), it being agreed to by and between the parties hereto that, with
\nrespect to leasing commissions set forth at Section 5(k)(i), above, to the
\nextent such new Leases or such renewals, modifications, amendments or expansions
\nof existing Leases or other supplementary agreements relating thereto are
\neffective prior to the Closing Date, leasing commissions due as a result thereof
\nshall be apportioned between the parties in proportion to the amount of rent
\neach party is entitled to receive pursuant to this Section 5.. If as of the
\nClosing Date Seller shall have paid any Tenant Inducement Costs or leasing
\ncommissions for which Purchaser is responsible pursuant to the foregoing
\nprovisions, Purchaser shall reimburse Seller therefor at Closing provided that
\nSeller shall supply invoices and statements for all such Tenant Inducement Costs
\nand leasing commissions to Purchaser on or prior to the Closing Date, as well as
\nevidence reasonable satisfactory to Purchaser of such payment. For purposes
\nhereof, the term “Tenant Inducement Costs” shall mean any out-of-pocket payments
\n ———————–
\nrequired under a Lease to be paid by the landlord thereunder to or for the
\nbenefit of the tenant thereunder which is in the nature of a tenant inducement
\nor concession, including, without limitation, tenant improvement costs, design,
\nrefurbishment and other work allowances, lease buyout costs, and moving
\nallowances; provided that “Tenant Inducement Costs” shall not include loss of
\nincome resulting from any free rental period (it being agreed that Seller shall
\nbear such loss resulting from any free rental period with respect to the period
\nprior to the Closing Date and that Purchaser shall bear such loss with respect
\nto the period from and after the Closing Date). Seller agrees that it shall be
\nresponsible for the payment of (i) all Tenant Inducement Costs set forth on
\nSchedule M and (ii) all leasing commissions set forth on Schedule N.<\/p>\n
(l) It is the intent of the parties that all items herein which are
\nsubject to apportionment under this Section 5 shall result in Seller receiving
\nall of the economic benefits and burdens of the Property with respect to the
\nperiod prior to the Closing Date, and Purchaser receiving all of the economic
\nbenefits and burdens for the Property with respect to the period from and after
\nthe Closing Date, except as may otherwise be expressly provided herein. If the
\ncomputation of the aforementioned apportionments shows that a net amount is owed
\nby Seller to Purchaser, such amount shall be credited against the Purchase Price
\npayable by Purchaser on the Closing Date. If such computation shows that a net
\namount is owed by Purchaser to Seller, such amount shall be paid to Seller by
\nPurchaser on the Closing Date, at Seller’s sole option, by cashier’s or bank
\ncheck or by wire transfer of immediately available funds to the account(s)
\ndesignated by Seller for such purpose upon three (3) business days’ prior notice
\ngiven by Seller to Purchaser.<\/p>\n
-13-<\/p>\n
(m) If at any time following the Closing Date, the amount of an item
\nlisted in any section of this Section 5 shall prove to be incorrect (whether as
\n ———
\na result of an error in calculation or a lack of complete and accurate
\ninformation as of the Closing), the party in whose favor the error was made
\nshall promptly pay to the other party the sum necessary to correct such error
\nupon receipt of proof of such error, provided that such proof is delivered to
\nthe party from whom payment is requested on or before September 30, 2000.<\/p>\n
(n) At or prior to the Closing, Seller and Purchaser and\/or their
\nrespective agents or designees will jointly prepare a preliminary closing
\nstatement (the “Preliminary Closing Statement”) which will show the net amount
\n —————————–
\ndue either to Seller or to Purchaser as the result of the adjustments and
\nprorations provided for herein, and such net due amount will be added to or
\nsubtracted from the cash balance of the Purchase Price to be paid to Seller at
\nthe Closing pursuant to Section 2 hereof, as applicable. Within one hundred
\n ———
\ntwenty (120) days following the Closing Date, Seller and Purchaser will jointly
\nprepare a final closing statement reasonably satisfactory to Seller and
\nPurchaser in form and substance (the “Final Closing Statement”) setting forth
\n ———————–
\nthe final determination of the adjustments and prorations provided for herein
\nand setting forth any items which are not capable of being determined at such
\ntime (and the manner in which such items shall be determined and paid). The net
\namount due Seller or Purchaser, if any, by reason of adjustments to the
\nPreliminary Closing Statement as shown in the Final Closing Statement, shall be
\npaid in cash by the party obligated therefor within ten (10) business days
\nfollowing that party’s receipt of the approved Final Closing Statement. The
\nadjustments, prorations and determinations agreed to by Seller and Purchaser in
\nthe Final Closing Statement shall be conclusive and binding on the parties
\nhereto except for any items which are not capable of being determined at the
\ntime the Final Closing Statement is agreed to by Seller and Purchaser, which
\nitems shall be determined and paid in the manner set forth in the Final Closing
\nStatement and except for other amounts payable hereunder pursuant to provisions
\nwhich survive the Closing. Prior to and following the Closing Date, each party
\nshall provide the other with such information as the other shall reasonably
\nrequest (including, without limitation, access to the books, records, files,
\nledgers, information and data with respect to the Property during normal
\nbusiness hours upon reasonable advance notice) in order to make the preliminary
\nand final adjustments and prorations provided for herein.<\/p>\n
(o) The provisions of this Section 5 shall survive the Closing.
\n ——— <\/p>\n
6. PROPERTY NOT INCLUDED IN SALE.
\n —————————– <\/p>\n
Notwithstanding anything to the contrary contained herein, it is expressly
\nagreed by the parties hereto that any fixtures, furniture, furnishings,
\nequipment or other personal property (including, without limitation, trade
\nfixtures in, on, around or affixed to the Building) owned<\/p>\n
-14-<\/p>\n
or leased by any tenant, managing agent, leasing agent, contractor, or employee
\nat the Building, shall not be included in the Property to be sold to Purchaser
\nhereunder.<\/p>\n
7. COVENANTS.
\n ——— <\/p>\n
(a) Between the date hereof and the Closing Date, Seller shall:<\/p>\n
(i) subject to subsections (b)(i) below, be permitted to
\nenter into any agreements with respect to all or any portion of the Property
\nprovided that such agreements expire by their terms on or prior to the Closing
\nDate or, in the case of Contracts, may be terminated by the owner of the
\nProperty without penalty upon not more than thirty (30) days’ (or less) prior
\nnotice or is necessary to correct any condition which constitutes a safety
\nhazard or is required by an insurance carrier or the Assumed Debt Documents or
\nany legal requirement;<\/p>\n
(ii) maintain in full force and effect the insurance
\npolicies currently in effect with respect to the Premises; and<\/p>\n
(iii) operate and manage the Premises in a manner consistent
\nwith current practice.<\/p>\n
(b) Between the date hereof and the Closing Date, Seller shall not,
\nexcept as permitted under Section 7(a) above, without Purchaser’s prior written
\n ————
\napproval:<\/p>\n
(i) cancel, amend, modify and\/or terminate the terms of
\nany Lease (other than the termination of any Lease as a result of the tenant’s
\ndefault thereunder and except to accept a cancellation, termination or surrender
\nof a Lease pursuant to a right exercisable by a tenant without the consent of
\nthe landlord under such Lease, which right is exercised by such tenant in
\naccordance with the terms of such Lease);<\/p>\n
(ii) amend or modify (other than non-material amendments or
\nmodifications) or renew any of the Contracts; or<\/p>\n
(iii) enter into any new Contracts; or<\/p>\n
(iv) so long as the Agreement is in full force and effect
\nand Purchaser is not in default hereunder, and provided that Purchaser has not
\nnotified Seller that it has not received Lender Consent, amend or modify any of
\nthe Assumed Debt Documents (except insofar as any such amendment or modification
\nwill not result in an increase in the obligations of the borrower under such
\ndocuments after the Closing, other than those<\/p>\n
-15-<\/p>\n
amendments or modifications required by the terms of the applicable Assumed Debt
\nDocument.<\/p>\n
(c) Whenever in Section 7(b) hereof Seller is required to obtain
\n ————
\nPurchaser’s approval with respect to any transaction described therein,
\nPurchaser shall, within seven (7) business days after receipt of Seller’s
\nrequest therefor, notify Seller of its approval or disapproval of same and, if
\nPurchaser fails to notify Seller of its disapproval within said seven (7)
\nbusiness day period, Purchaser shall be deemed to have approved same.<\/p>\n
(d) Purchaser hereby covenants and agrees with Seller as follows:<\/p>\n
(i) Purchaser acknowledges that prior to the date hereof
\nPurchaser conducted its examinations, inspections, testing, studies and\/or
\ninvestigations of the Property (collectively, referred to as the “Due
\n —
\nDiligence”) and other information regarding the Property, which Due Diligence
\n———
\nincluded, without limitation, matters relating to the environmental and physical
\ncondition of the Property, a review of the Assumed Debt Documents, the Leases,
\nthe Contracts (together with tenant files in Seller’s possession or in the
\npossession of Seller’s managing agent and Seller’s other files and
\ncorrespondence with respect thereto, except for such files and correspondence
\nwhich Seller is not permitted to disclose due to a confidentiality agreement
\nbinding on Seller (provided that the contents of such confidential files and
\ncorrespondence would not make any of Seller’s representations and warranties set
\nforth herein untrue, inaccurate or incorrect in any material respect)), an audit
\nof Seller’s books, and the audit reports and work papers with respect to the
\noperation of the Property prepared by Seller’s certified public accountants and
\ndelivered to Seller, with respect to the operating expenses (including, without
\nlimitation, credit losses and capital expenditures) and income with respect to
\nthe Property. Purchaser acknowledges and agrees that any information furnished
\nto Purchaser with respect to the Property is and has been so furnished on the
\ncondition that Purchaser maintain the confidentiality thereof. Accordingly,
\nPurchaser shall hold, and shall cause its directors, officers and other
\npersonnel and representatives to hold, in strict confidence, and not disclose to
\nany other person without the prior written consent of Seller until the Closing
\nshall have been consummated, any of the information in respect of the Property
\ndelivered to or for the benefit of Purchaser whether by agents, consultants,
\nemployees or representatives of Purchaser or by Seller or any of its agents,
\nrepresentatives or employees, including, but not limited to, any information
\nobtained by Purchaser or any of Purchaser’s representatives in connection with
\nany studies, inspections, testings or analyses conducted by Purchaser as part of
\nits Due Diligence. Upon request, Purchaser hereby covenants and agrees to
\nfurnish to Seller, without representation, warranty or recourse of any kind,
\ncopies of any written third party reports, studies, inspections or testings
\ncommissioned by Purchaser or its agents or representatives with respect to all
\nor any portion of the Premises which Purchaser has obtained in connection with
\nits Due Diligence. In<\/p>\n
-16-<\/p>\n
the event the Closing does not occur and this Agreement is terminated, Purchaser
\nshall promptly return to Seller all copies of documents containing any of such
\ninformation, without retaining any copy thereof or extract therefrom.
\nNotwithstanding anything to the contrary hereinabove set forth, Purchaser may
\ndisclose such information only (y) on a need to know basis to its employees,
\nmembers of professional firms serving it and to other persons to whom Purchaser
\nmay disclose information relating to the Property pursuant to Section 29(a)
\n ————-
\nbelow (including, without limitation, Purchaser’s prospective lenders), and (z)
\nas any governmental agency may require in order to comply with applicable laws
\nand\/or regulations. The provisions of this Subsection 7(d)(i) shall survive the
\n ——————
\nClosing or earlier termination of this Agreement.<\/p>\n
(ii) with respect to the Assumed Debt Documents, at the
\nClosing, Seller shall be fully released by Purchaser from all obligations and
\nliabilities thereunder.<\/p>\n
(iii) Purchaser acknowledges and agrees that Purchaser has
\n“signed-off” on (A) market conditions which influence the Property such as the
\nProperty’s competitive position relative to its existing and potential future
\ncompetitors, market rental rates achievable at the Property, vacancy
\nassumptions, downtime reserves, impact of sale on assessed value, tenant work
\nand leasing fee levels necessary to generate estimated market rents, tenant
\nretention ratios, and projected growth rates (if any) in rents, expenses, and\/or
\nretail sales, (B) Lease cancellation income, HVAC overtime income, profit from
\ntenant electric charges, and the need for and amount of any “capital reserves,”
\netc., and (C) the terms and provisions of the Assumed Debt Documents. Purchaser
\nacknowledges that it has received and reviewed an Environmental Phase I Site
\nAssessment, dated September, 1998 performed by ENSR Corporation with respect to
\nthe Property. The Purchase Price reflects Purchaser’s views on these issues.<\/p>\n
8. ASSIGNMENTS BY SELLER AND ASSUMPTIONS BY PURCHASER; SECURITY DEPOSITS;
\n ———————————————————————-
\n EMPLOYEES.
\n ———-<\/p>\n
(a) Subject to Section 7(b), on the Closing Date, Seller agrees to
\n ————
\nassign to Purchaser, without recourse, representation or warranty (except as
\nexpressly set forth in this Agreement), all of Seller’s right, title and
\ninterest in, and Purchaser agrees to assume Seller’s obligations accruing on and
\nafter the Closing Date under the documents described in clauses (i) through (v)
\nbelow:<\/p>\n
(i) all Leases which are then in effect (together with any
\n security deposited by the tenants thereunder);<\/p>\n
-17-<\/p>\n
(ii) all Contracts which are then in effect;<\/p>\n
(iii) all Assumed Debt Documents;<\/p>\n
(iv) Zoning Lot Development Agreement dated August 13, 1998
\nbetween Seller and 485 Fifth Avenue, LLC; and<\/p>\n
(v) the transferable permits, licenses and authorizations, if
\n any, relating to the Premises.<\/p>\n
(b) Prior to the Closing, Seller shall have the right (i) to apply
\nany security deposits held under Leases in respect of defaults by tenants under
\nthe applicable Leases, with the prior written consent of Purchaser, not to be
\nunreasonably withheld (except that Purchaser’s consent shall not be required
\nwith respect to any Lease with respect to which the tenant has either
\nsurrendered or vacated the premises or Seller has terminated (pursuant to
\nSection 7(b)(i) hereof) and instituted eviction proceedings) and (ii) to return
\nthe security deposit of any tenant thereunder who is entitled to the return of
\nsuch deposit pursuant to the terms of its Lease. If Seller exercises its right
\nset forth in clause (i) above to apply a security deposit, Seller shall
\nindemnify Purchaser against, and hold Purchaser harmless from, any claim made by
\nany such tenant against Purchaser in connection therewith. At the Closing,
\nSeller shall transfer or cause to be transferred to Purchaser the security
\ndeposits then held by Seller and not applied to defaults or returned to tenants
\nas above provided.<\/p>\n
(c) Seller agrees that, effective as of the Closing Date, it will
\nterminate (or cause to be terminated) all contracts or agreements for the
\nprovision of building services set forth on Exhibit C-1. Seller acknowledges
\nthat, if as a result, any of the union employees engaged by such companies are
\nterminated, certain termination benefits may be payable with respect to such
\nterminated employees. NorthStar Capital Investment Corp. agrees that it shall
\nindemnify and hold harmless Purchaser from and against any loss, cost, damage,
\nliability or expense (including, without limitations, reasonable attorneys’
\nfees, court costs and disbursements) incurred by Purchaser arising from or by
\nreason of the failure of Seller or any Person which acted on behalf of Seller
\nwhich is primarily responsible for the payment of any such termination benefits
\nto pay any such termination benefits as and when due and payable. The
\nprovisions of this Section 8(c) shall survive the Closing.
\n ———— <\/p>\n
(d) NorthStar Capital Investment Corp. agrees that it shall indemnify
\nand hold harmless Purchaser from and against fifty percent (50%) of any loss,
\ncost, damage, liability or expense (including, without limitations, reasonable
\nattorneys’ fees, court costs and disbursements) incurred by Purchaser arising
\nfrom or by reason of the arbitration proceeding or litigation known as “Building
\n ———
\nService 32B-J Funds v. Fifth Avenue Realty Co.” (Supreme
\n——————————————————–<\/p>\n
-18-<\/p>\n
Court, NY County -Index No. 116401\/99). The provisions of this Section 8(d)
\n————————————- ————
\nshall survive the Closing.<\/p>\n
9. CONDITION OF THE PROPERTY.
\n ————————- <\/p>\n
(a) Purchaser expressly acknowledges that, except as expressly set
\nforth in this Agreement, neither Seller, nor any person acting on behalf of
\nSeller, nor any person or entity which prepared or provided any of the materials
\nreviewed by Purchaser in conducting its Due Diligence, nor any direct or
\nindirect officer, director, partner, shareholder, employee, agent,
\nrepresentative, accountant, advisor, attorney, principal, affiliate, consultant,
\ncontractor, successor or assign of any of the foregoing parties (Seller, and all
\nof the other parties described in the preceding portions of this sentence (other
\nthan Purchaser) shall be referred to herein collectively as the “Exculpated
\n ———-
\nParties”) has made any oral or written representations or warranties, whether
\n——-
\nexpressed or implied, by operation of law or otherwise, with respect to the
\nProperty, the zoning and other laws, regulations and rules applicable thereto or
\nthe compliance by the Property therewith, the revenues and expenses generated by
\nor associated with the Property, or otherwise relating to the Property or the
\ntransactions contemplated herein. Purchaser further acknowledges that, all
\nmaterials which have been provided by any of the Exculpated Parties have been
\nprovided without any warranty or representation, expressed or implied as to
\ntheir content, suitability for any purpose, accuracy, truthfulness or
\ncompleteness and Purchaser shall not have any recourse against Seller or any of
\nthe other Exculpated Parties in the event of any errors therein or omissions
\ntherefrom. Purchaser is acquiring the Property based solely on its own
\nindependent investigation and inspection of the Property and not in reliance on
\nany information provided by Seller, or any of the other Exculpated Parties.<\/p>\n
(b) Purchaser acknowledges and agrees that it is purchasing the
\nProperty “AS IS” and “WITH ALL FAULTS”, based upon the condition of the Property
\nas of the date of this Agreement, reasonable wear and tear and, subject to the
\nprovisions of Sections 11 and 12 of this Agreement, loss by condemnation or fire
\n ———– —
\nor other casualty excepted. Purchaser acknowledges and agrees that its
\nobligations under this Agreement shall not be subject to any financing
\ncontingency or other contingencies or satisfaction of conditions and Purchaser
\nshall have no right to terminate this Agreement or receive a return of the
\nDeposit, except as otherwise expressly provided herein.<\/p>\n
(c) SELLER AND PURCHASER HEREBY AGREE THAT, EXCEPT AS OTHERWISE
\nEXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER HAS NOT MADE AND IS NOT MAKING
\nANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, AS TO
\n(A) THE NATURE OR CONDITION, PHYSICAL OR OTHERWISE, OF THE PROPERTY OR ANY
\nASPECT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF<\/p>\n
-19-<\/p>\n
HABITABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR
\nPURPOSE, OR THE ABSENCE OF LATENT VICES OR DEFECTS IN THE PROPERTY, (B) THE
\nNATURE OR QUALITY OF CONSTRUCTION, STRUCTURAL DESIGN OR ENGINEERING OF THE
\nIMPROVEMENTS OR THE STATE OF REPAIR OR LACK OF REPAIR OF ANY OF THE
\nIMPROVEMENTS, (C) THE QUALITY OF THE LABOR OR MATERIALS INCLUDED IN THE
\nIMPROVEMENTS, (D) THE SOIL CONDITIONS, DRAINAGE CONDITIONS, TOPOGRAPHICAL
\nFEATURES, ACCESS TO PUBLIC RIGHTS-OF-WAY, AVAILABILITY OF UTILITIES OR OTHER
\nCONDITIONS OR CIRCUMSTANCES WHICH AFFECT OR MAY AFFECT THE PROPERTY OR ANY USE
\nTO WHICH THE PROPERTY MAY BE PUT, (E) ANY CONDITIONS AT OR WHICH AFFECT OR MAY
\nAFFECT THE PROPERTY WITH RESPECT TO ANY PARTICULAR PURPOSE, USE, DEVELOPMENT
\nPOTENTIAL OR OTHERWISE, (F) THE AREA, SIZE, SHAPE, CONFIGURATION, LOCATION,
\nCAPACITY, QUANTITY, QUALITY, CASH FLOW, EXPENSES OR VALUE OF THE PROPERTY OR ANY
\nPART THEREOF, (G) THE NATURE OR EXTENT OF TITLE TO THE PROPERTY, OR ANY
\nEASEMENT, SERVITUDE, RIGHT-OF-WAY, POSSESSION, LIEN, ENCUMBRANCE, LICENSE,
\nRESERVATION, CONDITION OR OTHERWISE THAT MAY AFFECT TITLE TO THE PROPERTY, (H)
\nANY ENVIRONMENTAL, GEOLOGICAL, STRUCTURAL, OR OTHER CONDITION OR HAZARD OR THE
\nABSENCE THEREOF HERETOFORE, NOW OR HEREAFTER AFFECTING IN ANY MANNER THE
\nPROPERTY, INCLUDING BUT NOT LIMITED TO, THE PRESENCE OR ABSENCE OF ASBESTOS OR
\nANY ENVIRONMENTALLY HAZARDOUS SUBSTANCE ON, IN, UNDER OR ADJACENT TO THE
\nPROPERTY, OR(I)THE COMPLIANCE OF THE PROPERTY OR THE OPERATION OR USE OF THE
\nPROPERTY WITH ANY APPLICABLE RESTRICTIVE COVENANTS, OR WITH ANY LAWS, ORDINANCES
\nOR REGULATIONS OF ANY GOVERNMENTAL BODY (INCLUDING SPECIFICALLY, WITHOUT
\nLIMITATION, ANY ZONING LAWS OR REGULATIONS, ANY BUILDING CODES, ANY
\nENVIRONMENTAL LAWS, AND THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C.
\n12101 ET SEQ.) AND PURCHASER EXPRESSLY DISCLAIMS ANY RIGHT TO BRING ANY CLAIM IN
\nRESPECT OF THE FOREGOING. THE PROVISIONS OF THIS SECTION 9 SHALL BE BINDING ON
\nPURCHASER AND SHALL SURVIVE THE CLOSING.<\/p>\n
10. REPRESENTATIONS AND WARRANTIES.
\n —————————— <\/p>\n
(a) Purchaser represents and warrants to Seller as of the date hereof
\n that:
\n (i) Purchaser is a corporation duly organized, validly existing and
\n in good standing under the laws of the State of Delaware and is duly
\n qualified and has the requisite power and authority to carry on its business
\n in the State of New York as it is<\/p>\n
-20-<\/p>\n
now being conducted. This Agreement constitutes the legal, valid and binding
\n obligation of Purchaser, enforceable against Purchaser in accordance with its
\n terms. Purchaser has taken all necessary action to authorize and approve the
\n execution and delivery of this Agreement and the consummation of the
\n transactions contemplated by this Agreement.<\/p>\n
(ii) No action, suit, claim, investigation or proceeding,
\n whether legal or administrative or in mediation or arbitration, is pending
\n or, to the best of Purchaser’s knowledge, threatened, at law or in equity,
\n against Purchaser before or by any court or federal, state, municipal or
\n other governmental department, commission, board, bureau, agency or
\n instrumentality which would prevent Purchaser from performing its
\n obligations pursuant to this Agreement, and there are no judgments, decrees
\n or orders entered on a suit or proceeding against Purchaser, an adverse
\n decision in which might, or which judgment, decree or order does, adversely
\n affect Purchaser’s ability to perform its obligations pursuant to, or
\n Seller’s rights under, this Agreement, or which seeks to restrain,
\n prohibit, invalidate, set aside, rescind, prevent or make unlawful this
\n Agreement or the carrying out of this Agreement or the transactions
\n contemplated hereby.<\/p>\n
(iii) The execution and delivery of this Agreement and the
\n performance by Purchaser of its obligations hereunder do not and will not
\n conflict with or violate any law, rule, judgment, regulation, order, writ,
\n injunction or decree of any court or governmental or quasi-governmental
\n entity with jurisdiction over Purchaser, including, without limitation, the
\n United States of America, the State of New York or any political
\n subdivision of either of the foregoing, or any decision or ruling of any
\n arbitrator to which Purchaser is a party or by which Purchaser is bound or
\n affected.<\/p>\n
(b) Seller hereby represents and warrants to Purchaser as of
\nthe date hereof that:<\/p>\n
(i) Seller is a Delaware limited liability company duly
\n organized, validly existing and in good standing under the laws of the
\n State of Delaware and is duly qualified and has the requisite power and
\n authority to carry on its business in the State of New York as it is now
\n being conducted. This Agreement constitutes the legal, valid and binding
\n obligation of Seller, enforceable against Seller in accordance with its
\n terms. Seller has or will take all necessary action to authorize and
\n approve the execution and delivery of this Agreement and the consummation
\n of the transactions contemplated by this Agreement.<\/p>\n
(ii) No action, suit, claim, investigation or proceeding,
\n whether legal or administrative or in mediation or arbitration, is pending
\n or, to the best of Seller’s<\/p>\n
-21-<\/p>\n
knowledge, threatened, at law or in equity, against Seller before or by any
\n court or federal, state, municipal or other governmental department,
\n commission, board, bureau, agency or instrumentality which would prevent
\n Seller from performing its obligations pursuant to this Agreement, and
\n there are no judgments, decrees or orders entered on a suit or proceeding
\n against Seller, an adverse decision in which might, or which judgment,
\n decree or order does, adversely affect Seller’s ability to perform its
\n obligations pursuant to, or Purchaser’s rights under, this Agreement, or
\n which seeks to restrain, prohibit, invalidate, set aside, rescind, prevent
\n or make unlawful this Agreement or the carrying out of this Agreement or
\n the transactions contemplated hereby.<\/p>\n
(iii) The execution and delivery of this Agreement and the
\n performance by Seller of its obligations hereunder do not and will not
\n conflict with or violate any law, rule, judgment, regulation, order, writ,
\n injunction or decree of any court or governmental or quasi-governmental
\n entity with jurisdiction over Seller, including, without limitation, the
\n United States of America, the State of New York or any political
\n subdivision of either of the foregoing, or any decision or ruling of any
\n arbitrator to which Seller is a party or by which Seller is bound or
\n affected.<\/p>\n
(iv) Attached hereto as Schedule D is a true, correct and
\n ———-
\n complete list of the Leases in effect as of the date hereof.<\/p>\n
(v) Attached hereto as Schedule E is a true, correct and
\n ———-
\n complete list of the Contracts in effect as of the date hereof.<\/p>\n
(vi) Attached hereto as Schedule F is a true, correct and
\n ———-
\n complete list of the security deposits currently held by Seller under the
\n Leases in effect as of the date hereof. To Seller’s knowledge, (A) the
\n Leases are in full force and effect, (B) except as provided on Schedule G,
\n ———-
\n as of January 28, 2000 there are no defaults by any tenants under any
\n Leases, (C) Seller has fully performed, and until the Closing will continue
\n to perform, its obligations under all Leases and has not received any
\n written notice from any tenant that Seller is in default under any Lease,
\n (D) except with respect to the matters and items set forth on Schedule F,
\n no person, firm or entity has any possessory interest in the Property, (E)
\n no dispute exists with any party set forth on Schedule F, except as
\n provided on Schedule F, regarding the computation of rent, additional rent
\n or other sums or of any breach on the part of any such party, and (F) no
\n rent has been paid more than thirty (30) days in advance of its due date.
\n The representations of Seller under this subsection (vi) are subject to the
\n following limitation: Seller makes no representations under items (B), (C),
\n (E), and (F) with respect to the Hilfiger Lease.<\/p>\n
-22-<\/p>\n
(vii) Attached hereto as Schedule G is a tenant arrearage
\n ———-
\n schedule which was true, correct and complete in all material respects as
\n of the date set forth thereon.<\/p>\n
(viii) Except for the matters set forth on Schedule H, there is
\n ———-
\n no action, suit, litigation, hearing or administrative proceeding pending
\n against Seller, or, to Seller’s knowledge, threatened with respect to all
\n or any portion of the Premises.<\/p>\n
(ix) There are no condemnation or eminent domain proceedings
\n pending, or to Seller’s knowledge, threatened against the Premises.<\/p>\n
(x) Except for the notices of violation set forth on Schedule
\n ——–
\n I, Seller has not received any written notice from any governmental
\n –
\n authority claiming that the Premises is in violation of any applicable
\n laws.<\/p>\n
(xi) Except as set forth on Schedule J, there are no
\n ———-
\n employment, union or other similar agreements to which Seller is a party
\n and relating to the Premises (the agreements set forth on Schedule J being
\n ———-
\n referred to, collectively, as the “Employment Agreements”).
\n ———————<\/p>\n
(xii) Schedule C annexed hereto is a list of all employees
\n ———-
\n presently employed by Seller or Seller’s property manager at the Premises
\n and, based solely upon information provided by Seller’s cleaning contractor
\n and security contractor, a list of all employees presently employed by such
\n contractors at the Premises.<\/p>\n
(xiii) As of the date hereof, Seller has delivered to Purchaser
\n true and correct copies of all Environmental Reports made by or on behalf
\n of Seller or in its possession or control, which reports are listed on
\n Schedule K hereto. To Seller’s knowledge, there are no violations of
\n ———-
\n Environmental Law other than those, if any, set forth in the Environmental
\n Reports.<\/p>\n
(xiv) As of the date hereof, Seller has delivered to Purchaser
\n true and correct copies of all Engineering Reports made by or on behalf of
\n Seller or in its possession or control, which reports are listed on
\n Schedule L hereto.
\n ———- <\/p>\n
(xv) To Seller’s knowledge, except as set forth in the Leases
\n and on Schedule M, there are no outstanding “Tenant Inducement Costs”
\n ———-
\n relating to the Premises.<\/p>\n
(xvi) To Seller’s knowledge, except as set forth on Schedule N,
\n ———-
\n there are no outstanding “Leasing Commissions” relating to the Premises.<\/p>\n
-23-<\/p>\n
(xvii) As of the date hereof, Seller has delivered to Purchaser
\n true and correct copies of all pleadings in connection with the Check
\n Cashing Litigation (as defined herein) in its possession or control, which
\n reports are listed on Schedule O hereto.
\n ———- <\/p>\n
The representations and warranties contained in this Section 10(a) and
\n —————–
\n(b) shall survive the Closing for twelve (12) months following the Closing Date.
\n—
\nEach representation and warranty of Seller contained in Section 10(b) shall
\nautomatically be null and void and of no further force and effect on the day
\nwhich is the first anniversary of the Closing Date unless, prior to such day,
\nPurchaser shall have commenced a legal proceeding against Seller alleging that
\nSeller shall be in breach of such representation or warranty and that Purchaser
\nshall have suffered actual damages as a result thereof (a “Proceeding”). If
\n ———-
\nPurchaser shall have timely commenced a Proceeding and a court of competent
\njurisdiction shall, pursuant to a final, non-appealable order given in
\nconnection with such Proceeding, determine that (1) Seller was in breach of any
\nof the applicable representation or warranties as of the date of this Agreement
\nand (2) Purchaser suffered actual damages (the “Damages”) by reason of such
\n ——-
\nbreach and (3) Purchaser did not have actual knowledge or constructive knowledge
\nof such breach on or prior to the Closing Date then, Purchaser shall be entitled
\nto receive an amount equal to the Damages; provided, that, in no event shall
\nPurchaser be entitled to receive, in connection with any and all breaches of the
\nrepresentations and warranties of Seller hereunder, an amount in excess of the
\nnet sales proceeds received by Seller from Purchaser at the Closing (the<\/p>\n
“Proceeds”). Any such Damages shall be refunded from such Proceeds within
\n ——–
\nthirty (30) days following the entry of such final, nonappealable order and
\ndelivery of a copy thereof to Seller. Purchaser acknowledges and agrees that,
\nin the event that Seller shall be in breach of any of the representations,
\nPurchaser shall have no recourse to the property or other assets of Seller or
\nany of the other Exculpated Parties (excluding the Proceeds), and Purchaser’s
\nsole remedy, in such event, shall be to receive a refund from the Proceeds in
\nthe amount described above.<\/p>\n
(c) The representations and warranties of Seller set forth in
\nSection 10 (b) are subject to the following limitations: (i) subject to Section
\n————– ——-
\n7(b), Seller does not represent or warrant that any particular Lease or Contract
\n—-
\nwill be in force or effect as of the Closing or that the tenants or contractors
\nthereunder, as applicable, will not be in default thereunder, (ii) Seller
\nreserves the right, but is not obligated, to institute summary proceedings
\nagainst any tenant or terminate any Lease as a result of a material default by
\nthe tenant thereunder prior to the Closing Date. Seller makes no representations
\nand assumes no responsibility with respect to the continued occupancy of the
\nProperty or any part thereof by any tenant. Further, Purchaser agrees that it
\nshall not be grounds for Purchaser’s refusal to close the transactions
\ncontemplated by this Agreement that any tenant is a holdover tenant or in
\ndefault under its Lease on the Closing Date and Purchaser shall close hereunder
\nsubject to such holding over or default without credit against, or reduction of,
\nthe Purchase Price, (iii) to the extent that Seller has delivered or made
\navailable to Purchaser any Leases, Contracts or <\/p>\n
-24-<\/p>\n
other information with respect to the Property at any time prior to the Closing
\nDate and such Leases, Contracts or other information containing provisions
\ninconsistent with any of such representations and warranties, then such
\nrepresentations and warranties shall be deemed modified to conform to such
\nprovisions. Seller shall deliver to Purchaser at Closing a certification as to
\nwhether the representations set forth in Section 10(b) remain true and correct
\nin all material respects as of the Closing Date (with the appropriate knowledge
\nqualifiers), and, if said representations are no longer true or correct,
\nidentifying in which ways said representations have changed, and (iv) any and
\nall representations and warranties given by Seller hereunder shall be deemed to
\nbe to Seller’s knowledge with respect to documents executed, information
\nacquired, proceedings commenced, or otherwise, or the absence thereof, during
\nand\/or relating to the period prior to Seller’s ownership of the Property. In
\nthe event that any representation (a) is no longer true or correct and (b) as
\nchanged, materially and adversely affects Purchaser, Purchaser shall have the
\noption to either (a) elect to terminate this Agreement whereupon the Deposit
\nshall be returned to Purchaser and this Agreement (other than the provisions
\nhereof which are expressly stated to survive the termination of this Agreement)
\nshall be deemed canceled and of no further force or effect, with neither party
\nshall have any further rights or liabilities against or to the other, or (b)
\nwaive any such change and close without any abatement in the Purchase Price.
\nPrior to and as a precondition to Purchaser’s right to make any claim under
\nSection 10(b) for a breach of any representation contained herein, Purchaser
\nshall certify under oath that it did not, prior to or as of Closing (including
\nin its capacity as a tenant at the Property), have knowledge of the inaccuracy
\nof any representation or warranty which is the subject of a claim under Section
\n10(b).<\/p>\n
11. DAMAGE AND DESTRUCTION.
\n ———————- <\/p>\n
(a) If all or any part of the Building is damaged by fire or
\nother casualty occurring following the date hereof and prior to the Closing
\nDate, whether or not such damage affects a material part of the Building, then:<\/p>\n
(i) if, without taking into account any repair or
\nrestoration allocable to the portion of the premises demised under the Hilfiger
\nLease, the estimated cost of repair or restoration is less than or equal to
\n$10,000,000 and the estimated time to complete such repair or restoration is
\nnone months or less, neither party shall have the right to terminate this
\nAgreement and the parties shall nonetheless consummate this transaction in
\naccordance with this Agreement, without any abatement of the Purchase Price or
\nany liability or obligation on the part of Seller by reason of said destruction
\nor damage. In such event, Seller shall assign to Purchaser and Purchaser shall
\nhave the right to make a claim for and to retain any casualty insurance proceeds
\nreceived under the casualty insurance policies in effect with respect to the
\nPremises on account of said physical damage or destruction as shall be
\nnecessary, in Purchaser’s reasonable judgment, to perform repairs to the
\nBuilding and\/or to rebuild the Building to substantially the same condition as
\nit existed prior to the occurrence of <\/p>\n
-25-<\/p>\n
such fire or other casualty and Purchaser shall receive a credit from the cash
\ndue at Closing for the amount of the deductible on such casualty insurance
\npolicy.<\/p>\n
(ii) if, without taking into account any repair or
\nrestoration allocable to the portion of the premises demised under the Hilfiger
\nLease, the estimated cost of repair or restoration exceeds $10,000,000 or if the
\nestimated time to complete such repair or restoration exceeds nine (9) months,
\nPurchaser shall have the option, exercisable within ten (10) business days after
\nreceipt of notice of the occurrence of such fire or other casualty (which notice
\nshall also include the estimated cost of repair or restoration as well as the
\nestimated time to complete such repair or restoration), time being of the
\nessence with respect to such option, to terminate this Agreement by delivering
\nwritten notice thereof to Seller, whereupon the Deposit shall be returned to
\nPurchaser and this Agreement (other than the provisions hereof which are
\nexpressly stated to survive the termination of this Agreement) shall be deemed
\ncanceled and of no further force or effect, with neither party shall have any
\nfurther rights or liabilities against or to the other. In the event of an
\noccurrence as set forth in the preceding sentence, and Purchaser shall not
\ntimely elect to terminate this Agreement or elects to close notwithstanding such
\noccurrence, then Purchaser and Seller shall consummate this transaction in
\naccordance with this Agreement, without any abatement of the Purchase Price or
\nany liability or obligation on the part of Seller or by reason of said
\ndestruction or damage. In such event, Seller shall assign to Purchaser and
\nPurchaser shall have the right to make a claim for and to retain any casualty
\ninsurance proceeds received on account of said physical damage or destruction
\nand Purchaser shall receive a credit from the cash due at Closing for the amount
\nof the deductible on the insurance policy.<\/p>\n
(b) The estimated cost to repair and\/or restore and the
\nestimated time to complete contemplated in subsection (a) above shall be
\n ————–
\nestablished by estimates obtained by Seller from independent contractors,
\nsubject to Purchaser’s review and reasonable approval of the same and the
\nprovisions of Section 11(c) below and shall be set forth in Seller’s notice to
\n ————-
\nPurchaser required in Section 11(a)(ii) above.<\/p>\n
(c) The provisions of this Section 11 supersede the provisions
\n ———-
\nof Section 5-1311 of the General Obligations Law of the State of New York. Any
\ndisputes under this Section 11 as to the cost of repair or restoration or the
\n ———-
\ntime for completion of such repair or restoration shall be resolved by expedited
\narbitration before a single arbitrator acceptable to both Seller and Purchaser
\nin their reasonable judgment in accordance with the rules of the American
\nArbitration Association; provided that if Seller and Purchaser fail to agree on
\nan arbitrator within five days after a dispute arises, then either party may
\nrequest the Real Estate Board of New York, Inc., to designate an arbitrator.
\nSuch arbitrator shall be an independent architect or engineer having at least
\nten (10) years of experience in the construction of office buildings in
\nManhattan. The determination of the arbitrator shall be conclusive and binding<\/p>\n
-26-<\/p>\n
upon the parties. The costs and expenses of such arbitrator shall be borne
\nequally by Seller and Purchaser.<\/p>\n
12. CONDEMNATION.
\n ———— <\/p>\n
(a) If, prior to the Closing Date, any part of the Premises is
\ntaken (other than a temporary taking), or if Seller shall receive an official
\nnotice from any govern mental authority having eminent domain power over the
\nPremises of its intention to take, by eminent domain proceeding, any part of the
\nPremises (a “Taking”), then:
\n ——<\/p>\n
(i) if such Taking involves less than or equal to ten
\npercent (10%) of the rentable area of the Building as determined by an
\nindependent architect chosen by Seller (subject to Purchaser’s review and
\nreasonable approval of the same), neither party shall have any right to
\nterminate this Agreement, and the parties shall nonetheless consummate this
\ntransaction in accordance with this Agreement, without any abatement of the
\nPurchase Price or any liability or obligation on the part of Seller by reason of
\nsuch Taking; provided, however, that Seller shall, on the Closing Date, (i)
\nassign and remit to Purchaser, and Purchaser shall be entitled to receive and
\nkeep, the net proceeds of any award or other proceeds of such Taking which may
\nhave been collected by Seller as a result of such Taking less the reasonable
\nexpenses incurred by Seller in connection with such Taking, or (ii) if no award
\nor other proceeds shall have been collected, deliver to Purchaser an assignment
\nof Seller’s right to any such award or other proceeds which may be payable to
\nSeller as a result of such Taking and Purchaser shall reimburse Seller for the
\nreasonable expenses incurred by Seller in connection with such Taking.<\/p>\n
(ii) if such Taking involves more than ten percent
\n(10%) of the rentable area of the Building as determined by an independent
\narchitect chosen by Seller (subject to Purchaser’s review and reasonable
\napproval of the same), Purchaser shall have the option, exercisable within
\nfifteen (15) business days after receipt of notice (from either the governmental
\nauthority seeking to exercise its right of eminent domain or Seller, whichever
\nis received earlier) of such Taking, time being of the essence with respect to
\nsuch option, to terminate this Agreement by delivering notice thereof to Seller,
\nwhereupon the Deposit shall be returned to Purchaser and this Agreement shall be
\ndeemed canceled and of no further force or effect, and neither party shall have
\nany further rights or liabilities against or to the other except pursuant to the
\nprovisions of this Agreement which are expressly provided to survive the
\ntermination hereof. If a Taking described in this clause (ii) shall occur and
\n ———-
\nPurchaser shall not timely elect to terminate this Agreement, then Purchaser and
\nSeller shall consummate this transaction in accordance with this Agreement,
\nwithout any abatement of the Purchase Price or any liability or obligation on
\nthe part of Seller by reason of such Taking; provided, however, that Seller
\nshall, on the Closing Date, (i) assign and remit to Purchaser, and Purchaser
\nshall be entitled to receive and keep, the net proceeds of any award or other<\/p>\n
-27-<\/p>\n
proceeds of such Taking which may have been collected by Seller as a result of
\nsuch Taking less the reasonable expenses incurred by Seller in connection with
\n —-
\nsuch Taking, or (ii) if no award or other proceeds shall have been collected,
\ndeliver to Purchaser an assignment of Seller’s right to any such award or other
\nproceeds which may be payable to Seller as a result of such Taking and Purchaser
\nshall reimburse Seller for the reasonable expenses incurred by Seller in
\nconnection with such Taking.<\/p>\n
(b) The provisions of this Section 12 supersede the provisions of
\n ———-
\nSection 5-1311 of the General Obligations Law of the State of New York. Any
\ndisputes under this Section 12 as to whether the Taking involves more than ten
\n ———-
\npercent (10%) of the rentable area of the Building shall be resolved by
\nexpedited arbitration before a single arbitrator acceptable to both Seller and
\nPurchaser in their reasonable judgment in accordance with the rules of the
\nAmerican Arbitration Association; provided that if Seller and Purchaser fall to
\nagree on an arbitrator within five days after a dispute arises, then either
\nparty may request the Real Estate Board of New York, Inc. designate an
\narbitrator. Such arbitrator shall be an independent architect having at least
\nten (10) years of experience in the construction of office buildings in
\nManhattan. The costs and expenses of such arbitrator shall be borne equally by
\nSeller and Purchaser.<\/p>\n
13. BROKERS AND ADVISORS.
\n ——————– <\/p>\n
(a) Purchaser represents and warrants to Seller that it has not
\ndealt or negotiated with, or engaged on its own behalf or for its benefit, any
\nbroker, finder, consultant, advisor, or professional in the capacity of a broker
\nor finder (each a “Broker”) in connection with this Agreement or the
\n ——
\ntransactions contemplated hereby. Purchaser hereby agrees to indemnify, defend
\nand hold Seller harmless from and against any and all claims, demands, causes of
\naction, losses, costs and expenses (including reasonable attorneys’ fees, court
\ncosts and disbursements) arising from any claim for commission, fees or other
\ncompensation or reimbursement for expenses made by any Broker engaged by or
\nclaiming to have dealt with Purchaser in connection with this Agreement or the
\ntransactions contemplated hereby.<\/p>\n
(b) Seller hereby agrees to indemnify, defend and hold Purchaser
\nharmless from and against any and all claims, demands, causes of action, losses,
\ncosts and expenses (including reasonable attorneys’ fees, court costs and
\ndisbursements) arising from any claim for commission, fees or other compensation
\nor reimbursement for expenses made by any Broker engaged by or claiming to have
\ndealt with Seller in connection with this Agreement or the transactions
\ncontemplated hereby.<\/p>\n
(c) The provisions of this Section 13 shall survive the
\n ———-
\ntermination of this Agreement or the Closing.<\/p>\n
-28-<\/p>\n
14. TAX REDUCTION PROCEEDINGS.
\n ————————- <\/p>\n
Seller may file and\/or prosecute an application for the reduction of
\nthe assessed valuation of the Premises or any portion thereof for real estate
\ntaxes for the New York City fiscal year July 1, 1999 to June 30, 2000 (the<\/p>\n
“1999\/2000 Tax Year”). Seller shall have the right, without the prior consent
\n——————-
\nof Purchaser, to withdraw, settle or otherwise compromise any protest or
\nreduction proceeding affecting real estate taxes assessed against the Premises
\n(i) for any fiscal period prior to the 1999\/2000 Tax Year, and (ii) for the
\n1999\/2000 Tax Year, subject to Purchaser’s consent, such consent not to be
\nunreasonably withheld, in the event that Purchaser shall be materially and
\nadversely affected thereby. All refunds, credits or other benefits(i)
\napplicable to any fiscal period prior to the 1999\/2000 Tax Year shall belong
\nsolely to Seller (and Purchaser shall have no interest therein) and (ii) for the
\n1999\/2000 Tax Year shall be apportioned between Purchaser and Seller as provided
\nin Section 5(a) hereof (but without regard to the “cut-off” date provided for
\ntherein), after reimbursement to Seller for all actual expenses incurred by
\nSeller in connection with such proceeding) and in either event, if any amounts
\ndue to Seller pursuant to this paragraph shall be paid to Purchaser or anyone
\nacting on behalf of Purchaser, same shall be paid to Seller within ten (10) days
\nfollowing receipt thereof and, if not timely paid, with interest thereon from
\nthe tenth day following such receipt until paid to Seller at a rate equal to the
\nprime rate of interest announced by Citibank, N.A. from time to time plus three
\npercent (3%). The provisions of this Section 14 shall survive the Closing.
\n ———- <\/p>\n
15. TRANSFER TAXES, RECORDING AND OTHER CHARGES.
\n ——————————————- <\/p>\n
(a) At the Closing, Seller and Purchaser shall execute,
\nacknowledge, deliver and file all such returns as may be necessary to comply
\nwith all applicable transfer tax laws, including Article 31 of the Tax Law of
\nthe State of New York and the regulations applicable thereto, as the same may be
\namended from time to time (the “RET”) and the New York City Real Property
\n —
\nTransfer Tax (Admin. Code Article 21) and the regulations applicable thereto, as
\nthe same may be amended from time to time (the “RPT”). On the Closing Date,
\n —
\nSeller shall pay to the appropriate party the amounts payable under the RET and
\nRPT, if any.<\/p>\n
(b) Notwithstanding anything to the contrary contained herein,
\nupon written request of Seller at least three (3) business days prior to the
\nClosing Date, Purchaser shall bring to the Closing separate certified or bank
\nchecks in the amount of the taxes due with respect to the RET and the RPT, if
\nany, which amount shall be credited against the Purchase Price payable on the
\nClosing Date.<\/p>\n
(c) Except as set forth in Section 15(a) above, Purchaser shall
\n ————-
\nbe liable for the payment of all recording charges and fees and all transfer,
\nconveyance, sales, <\/p>\n
-29-<\/p>\n
intangible and mortgage taxes payable in connection with this Agreement and the
\ntransfer of the Property (including, without limitation, the cost of obtaining
\ntitle insurance, survey fees, recording fees, and all other title related
\nexpenses) and any fees or other amounts required by Lender in connection with
\nthe giving of its consent and\/or the assumption of the Assumed Debt. If any
\nadditional transfer, conveyance, sales, intangible, mortgage or other tax is
\ninstituted on or after the date hereof and payable in connection with the
\ntransactions contemplated herein, Seller shall pay same in the event the primary
\nobligation to pay same is a seller’s obligation and Purchaser shall pay same in
\nthe event the primary obligation to pay same is a purchaser’s obligation.<\/p>\n
(d) The provisions of this Section 15 shall survive the Closing.
\n ———- <\/p>\n
16. DELIVERIES TO BE MADE ON THE CLOSING DATE.
\n —————————————– <\/p>\n
(a) Seller’s Documents and Deliveries: On the Closing Date,
\n ———————————
\nSeller shall deliver or cause to be delivered to Purchaser the following:<\/p>\n
(i) A duly executed and acknowledged Bargain and Sale Deed
\n Without Covenant Against Grantor’s Acts in the form attached hereto as
\n Exhibit 1;
\n ——— <\/p>\n
(ii) A duly executed Bill of Sale in the form attached
\n hereto as Exhibit 2;
\n ——— <\/p>\n
(iii) A duly executed Indemnification Agreement from
\n NorthStar Capital Investment Corp.;
\n (iv) Originals or, if unavailable, true and complete
\n copies, of the Leases and Contracts then in effect to the extent in
\n Seller’s possession;<\/p>\n
(v) An original fully executed counterpart of the Assumed
\n Debt Documents evidencing and securing the Assumed Debt, to the extent the
\n same is in Seller’s possession and control; provided that if Seller is
\n unable to produce an original fully executed counterpart of any such
\n document, Seller may provide a copy of such document certified by Seller to
\n be a true and correct copy thereof, in lieu thereof;<\/p>\n
(vi) Letters to all tenants under the Leases in the form
\n attached hereto as Exhibit 3;
\n ———<\/p>\n
-30-<\/p>\n
(vii) Originals or, if unavailable, true and complete
\n copies, of plans (including “as built” plans) and specifications, technical
\n manuals and similar materials for the Building to the extent same are in
\n Seller’s possession;<\/p>\n
(viii) A duly executed certification as to Seller’s
\n nonforeign status as prescribed in Section 20 hereof, if appropriate, in
\n ———-
\n the form attached hereto as Exhibit 4;
\n ——— <\/p>\n
(ix) The cash security deposits (together with interest
\n accrued thereon less a 1% administrative fee (but only to the extent that
\n same is permitted under applicable law of the terms of the applicable
\n Lease) and letters of credit held by Seller as security under the Leases,
\n but only to the extent the same have not been applied in accordance with
\n the Leases or returned to tenants and relate to tenants occupying space in
\n the Building on the Closing Date pursuant to Leases then in effect (the
\n “Transferred Security Deposits”);
\n —————————–<\/p>\n
(x) Originals or, if unavailable, true and complete
\n copies, of all books and records relating to the Premises and maintained by
\n Seller during Seller’s ownership thereof,<\/p>\n
(xi) Originals or, if unavailable, true and complete
\n copies, of all permits, licenses and approvals relating to the ownership,
\n use or operation of the Premises, to the extent in Seller’s possession;<\/p>\n
(xii) Keys and combinations in Seller’s possession relating
\n to the operation of the Premises; and<\/p>\n
(xiii) A duly executed certification from Seller as
\nprescribed in Section 11(c) hereof that the representations and warranties of
\n ———-
\nSeller contained herein shall be true and correct in all material respects as of
\nthe date of Closing or, if said representations are no longer true or correct,
\nidentifying in which ways said representations have changed.<\/p>\n
Seller shall be deemed to have delivered the items set forth in
\nclauses (iii), (vi), (ix), (x) and (xi) above if the same are left in the
\nBuilding management office on the Closing Date.<\/p>\n
(b) Purchaser’s Documents and Deliveries: On the Closing Date,
\n ————————————
\nPurchaser, shall deliver or cause to be delivered to Seller the following:<\/p>\n
-31-<\/p>\n
(i) Checks or wire transfer in payment of the portion of the
\n Purchase Price payable at Closing, as adjusted for apportionments under
\n Section 5, in the manner required under this Agreement and any payment due
\n ———
\n Seller with respect to the Reserves and any other amounts payable to Seller
\n under this Agreement.<\/p>\n
(ii) Duly executed and acknowledged assignment and assumption
\n documents for the assumption of the Assumed Debt, together with a release
\n in form and substance reasonable satisfactory to Seller, executed by Lender
\n (and all other persons (such as loan servicers and trustees) which may be
\n capable of asserting any claims) releasing Seller from all of the
\n obligations and liabilities with respect to the Assumed Debt and the
\n Assumed Debt Documents.<\/p>\n
(c) Jointly Executed Documents: Seller and Purchaser shall, on
\n ————————–
\n the Closing Date, each execute, acknowledge (as appropriate) and
\n exchange the following documents:<\/p>\n
(i) The returns required under the RET, the RPT and any
\n other tax laws applicable to the transactions contemplated herein;<\/p>\n
(ii) An Assignment and Assumption of Leases and Contracts
\n in the form attached hereto as Exhibit 5;
\n ———- <\/p>\n
(iii) A General Assignment and Assumption Agreement in the
\n form attached hereto as Exhibit 6; and
\n ———- <\/p>\n
(iv) Any other affidavit, document or instrument required
\n to be delivered by Seller or Purchaser pursuant to the terms of this
\n Agreement.<\/p>\n
17. CLOSING DATE.
\n ———— <\/p>\n
(a) The closing (the “Closing”) of the transactions
\n ——-
\ncontemplated hereunder shall occur, and the documents referred to in Section 16
\n ———-
\nhereof shall be delivered upon tender of the Purchase Price provided for in this
\nAgreement, on or about March 1, 2000 (the “Closing Date”), at the offices of
\n ————
\nSeller’s attorneys, Battle Fowler LLP. In the event that the Closing does not
\noccur on March 1, 2000, the Closing Date shall be March 10, 2000. Except as
\nprovided in subsection (b), below, time is of the essence as to Purchaser’s
\nobligation to close the transactions contemplated hereunder on the March 10,
\n2000 (or, if Seller shall have extended the Scheduled Closing Date pursuant to
\nSection 4, on such Scheduled Closing Date so designated by Seller).
\n———<\/p>\n
-32-<\/p>\n
(b) Notwithstanding subsection (a) above, by notice given
\nto Purchaser no later than March 5, 2000, Purchaser may elect to adjourn the
\nClosing to a date no later than April 10, 2000, in which event time shall be of
\nthe essence as to Purchaser’s obligation to close the transactions contemplated
\nhereunder on the date so designated by Purchaser. As a condition precedent to
\nPurchaser’s exercise of its rights under this subsection (b), Purchaser shall
\nincrease the Deposit to THREE MILLION, SEVEN HUNDRED FIFTY THOUSAND AND NO\/100
\n($3,750,000.00) DOLLARS by payment to Escrow Agent , by certified check, of the
\namount of ONE MILLION, SEVEN HUNDRED FIFTY THOUSAND AND NO\/100 ($1,750,000.00)
\nDOLLARS.<\/p>\n
18. NOTICES.
\n ——- <\/p>\n
All notices, demands, requests or other communications
\n(collectively, “Notices”) required to be given or which may be given hereunder
\n ——-
\nshall be in writing and shall be sent by (a) certified or registered mail,
\nreturn receipt requested, postage prepaid, or (b) national overnight delivery
\nservice, or (c) facsimile transmission (provided that the original shall be
\nsimultaneously delivered by national overnight delivery service or personal
\ndelivery), or (d) personal delivery, addressed as follows:<\/p>\n
(i) If to Seller:<\/p>\n
NorthStar 485 5th Holding LLC
\n c\/o NorthStar Capital Investment Corp.
\n 527 Madison Avenue, 16th Floor
\n New York, New York 10022
\n Attention: Mr. David G. King, Jr.
\n Fax: (212) 319-4557<\/p>\n
with a copy to:<\/p>\n
Battle Fowler LLP
\n 75 East 55th Street
\n New York, New York 10022
\n Attention: Robert J. Wertheimer, Esq.
\n Michael J. Lendino, Esq.
\n Fax: (212) 856-7808<\/p>\n
(ii) If to Purchaser:<\/p>\n
-33-<\/p>\n
Tommy Hilfiger U.S.A., Inc.
\n 25 West 39\/th\/ Street
\n New York, New York 10018
\n Attention: Mr. Joel Newman
\n Fax: (212) 548-1965 <\/p>\n
with a copy to: <\/p>\n
Gursky & Ederer, P.C.
\n 1350 Broadway
\n New York, New York 10036
\n Attention: Steven R. Gursky, Esq.
\n Fax: (212) 967-4467 <\/p>\n
Any Notice so sent by certified or registered mail, national overnight
\ndelivery service or personal delivery shall be deemed given on the date of
\nreceipt or refusal as indicated on the return receipt, or the receipt of the
\nnational overnight delivery service or personal delivery service. Any Notice
\nsent by facsimile transmission shall be deemed given when received as confirmed
\nby the telecopier electronic confirmation receipt. A Notice may be given either
\nby a party or by such party’s attorney. Notwithstanding the foregoing, whenever
\nunder this Agreement a notice is (a) received on a day which is not a business
\nday or is required to be delivered on or before a specific day which is not a
\nbusiness day, the day of receipt or required delivery shall automatically be
\nextended to the next business day and (b) delivered by hand (or so attempted,
\nbut refused) or by facsimile transmission, it shall be deemed given on the day
\nof delivery unless delivery is made after 5:00 p.m. or not on a business day, in
\nwhich event delivery shall be deemed given on the next occurring business day).<\/p>\n
Seller or Purchaser may designate, by not less than five (5) business
\ndays’ notice given to the others in accordance with the terms of this Section
\n ——-
\n18, additional or substituted parties to whom Notices should be sent hereunder.
\n—
\nBy giving to the other party at least five (5) business days’ notice given to
\nthe others in accordance with the terms of this Section 18, the parties hereto
\n ———-
\nand their respective successors and assigns will have the right from time to
\ntime and at any time during the term of this Agreement to change their
\nrespective addresses and each will have the right to specify as its address any
\nother address.<\/p>\n
19. DEFAULT BY PURCHASER OR SELLER.
\n —————————— <\/p>\n
(a) If Purchaser shall default in its obligations hereunder,
\nSeller’s sole remedy by reason thereof shall be to terminate this Agreement and,
\nupon such<\/p>\n
-34-<\/p>\n
termination, Seller shall be entitled to retain the Deposit as liquidated
\ndamages for Purchaser’s default hereunder, it being agreed that the damages by
\nreason of Purchaser’s default are difficult, if not impossible, to ascertain,
\nand thereafter Purchaser and Seller shall have no further rights or obligations
\nunder this Agreement except for those that are expressly provided in this
\nAgreement to survive the termination hereof. If Seller terminates this Agreement
\npursuant to a right given to it hereunder and Purchaser takes any willful action
\nas to which Purchaser is not entitled hereunder and which interferes with
\nSeller’s ability to sell, exchange, transfer, lease, dispose of or finance the
\nProperty or take any other actions with respect thereto (including, without
\nlimitation, the filing of any lis pendens or other form of attachment against
\nthe Property), Purchaser shall be liable for all loss, cost, damage, liability
\nor expense (including, without limitation, reasonable attorneys’ fees, court
\ncosts and disbursements and consequential damages) incurred by Seller by reason
\nof such action to contest by Purchaser.<\/p>\n
(b) If (x) Seller shall default in any of its obligations to be
\nperformed on the Closing Date or (y) Seller shall default in the performance of
\nany of its obligations to be performed prior to the Closing Date and, with
\nrespect to any default under this clause (y) only, such default shall continue
\n ———-
\nfor five (5) days after notice to Seller, Purchaser shall have such remedies as
\nPurchaser shall be entitled to at law or in equity, including, but not limited
\nto, specific performance.<\/p>\n
(c) All money paid on account of this Agreement, and the
\nreasonable expenses of examination of title to the Premises and of any survey
\nand survey inspection charges, are hereby made liens on the Premises, but such
\nliens shall not continue after default by Purchaser under this Agreement.<\/p>\n
(d) The provisions of this Section 19 shall survive the
\n ———-
\ntermination hereof.<\/p>\n
20. FIRPTA COMPLIANCE.
\n —————– <\/p>\n
Seller shall comply with the provisions of the Foreign Investment in
\nReal Property Tax Act, Section 1445 of the Internal Revenue Code of 1986 (as
\namended), as the same may be amended from time to time, or any successor or
\nsimilar law (collectively, “FIRPTA”). Seller acknowledges that Section 1445 of
\n ——
\nthe Internal Revenue Code provides that a transferee of a United States real
\nproperty interest must withhold tax if the transferor is a foreign person. To
\ninform Purchaser that withholding of tax is not required upon the disposition of
\na United States real property interest by Seller, Seller hereby represents and
\nwarrants that Seller is not a foreign person as that term is defined in the
\nInternal Revenue Code and Income Tax Regulations. On the Closing Date, Seller
\nshall deliver to Purchaser a certification as to Seller’s non-foreign status in
\nthe form attached hereto as Exhibit 4, and shall comply with any temporary or
\n ———
\nfinal regulations promulgated with respect thereto and any <\/p>\n
-35-<\/p>\n
relevant revenue procedures or other officially published announcements of the
\nInternal Revenue Service of the U.S. Department of the Treasury in connection
\ntherewith.<\/p>\n
21. ESCROW AGENT.
\n ———— <\/p>\n
(a) Escrow Agent shall hold the Deposit for Seller’s account in
\nescrow as provided in paragraph 2(b) hereof until Closing or sooner termination
\nof this contract and shall pay over or apply the Deposit in accordance with the
\nterms of this paragraph. At Closing, the Deposit shall be paid by Escrow Agent
\nto Seller. If for any reason Closing does not occur and either party gives
\nNotice to Escrow Agent demanding payment of the Deposit, Escrow Agent shall give
\nprompt Notice to the other party of such demand. If Escrow Agent does not
\nreceive Notice of objection from such other party to the proposed payment within
\n10 business days after the giving of such Notice, Escrow Agent is hereby
\nauthorized and directed to make such payment. If Escrow Agent does receive such
\nNotice of objection within such 10 day period or if for any other reason Escrow
\nAgent in good faith shall elect not to make such payment, Escrow Agent shall
\ncontinue to hold such amount until otherwise directed by Notice from the parties
\nto this contract or a final, nonappealable judgment, order or decree of a court.
\nHowever, Escrow Agent shall have the right at any time to deposit the Deposit
\nand the interest thereon with the clerk of a court in the county in which the
\nPremises are located and shall give Notice of such deposit to Seller and
\nPurchaser. Upon such deposit or other disbursement in accordance with the terms
\nof this paragraph, Escrow Agent shall be relieved and discharged of all further
\nobligations and responsibilities hereunder.<\/p>\n
(b) The parties acknowledge that, although Escrow Agent is
\nholding the Deposit for Seller’s account, for all other purposes Escrow Agent is
\nacting solely as a stakeholder at their request and for their convenience and
\nthat Escrow Agent shall not be liable to either party for any act or omission on
\nits part unless taken or suffered in bad faith or in willful disregard of this
\ncontract or involving gross negligence on the part of Escrow Agent. Seller and
\npurchaser jointly and severally agree to defend, indemnify and hold Escrow Agent
\nharmless from and against all costs, claims and expenses (including reasonable
\nattorneys’ fees) incurred in connection with the performance of Escrow Agent’s
\nduties hereunder, except with respect to actions or omissions taken or suffered
\nby Escrow Agent in bad faith or in willful disregard of this contract or
\ninvolving gross negligence on the part of Escrow Agent.<\/p>\n
(c) Escrow Agent may act or refrain from acting in respect of
\nany matter referred to herein in full reliance upon and with the advice of
\ncounsel which may be selected by it (including any member of its firm) and shall
\nbe fully protected in so acting or refraining from action upon the advice of
\nsuch counsel.<\/p>\n
-36-<\/p>\n
(d) Escrow Agent acknowledges receipt of the Deposit by check
\nsubject to collection and Escrow Agent’s agreement to the provisions of this
\nparagraph by signing in the place indicated on the signature page of this
\ncontract.<\/p>\n
(e) Escrow Agent or any member of its firm shall be permitted to
\nact as counsel for Seller in any dispute as to the disbursement of the Deposit
\nor any other dispute between the parties whether or not Escrow Agent is in
\npossession of the Deposit and continues to act as Escrow Agent.<\/p>\n
22. ENTIRE AGREEMENT.
\n —————- <\/p>\n
This Agreement contains all of the terms agreed upon between Seller
\nand Purchaser with respect to the subject matter hereof, and all prior
\nagreements, understandings, representations and statements, oral or written,
\nbetween Seller and Purchaser are merged into this Agreement.<\/p>\n
23. AMENDMENTS.
\n ———- <\/p>\n
This Agreement may not be changed, modified or terminated, except by
\nan instrument executed by Seller and Purchaser.<\/p>\n
24. WAIVER.
\n —— <\/p>\n
No waiver by either party of any failure or refusal by the other party
\nto comply with its obligations shall be deemed a waiver of any other or
\nsubsequent failure or refusal to so comply.<\/p>\n
25. PARTIAL INVALIDITY.
\n —————— <\/p>\n
If any term or provision of this Agreement or the application thereof
\nto any person or circumstance shall, to any extent, be invalid or unenforceable,
\nthe remainder of this Agreement, or the application of such term or provision to
\npersons or circumstances other than those as to which it is held invalid or
\nunenforceable, shall not be affected thereby, and each term and provision of
\nthis Agreement shall be valid and shall be enforced to the fullest extent
\npermitted by law. The provisions of this Section 25 shall survive the Closing
\n ———-
\nor the termination hereof.<\/p>\n
-37-<\/p>\n
26. SECTION HEADINGS.
\n —————- <\/p>\n
The headings of the various sections of this Agreement have been
\ninserted only for the purposes of convenience, and are not part of this
\nAgreement and shall not be deemed in any manner to modify, explain, expand or
\nrestrict any of the provisions of this Agreement.<\/p>\n
27. GOVERNING LAW.
\n ————- <\/p>\n
This Agreement shall be governed by the laws of the State of New York
\nwithout giving effect to conflict of laws principles thereof.<\/p>\n
28. PARTIES; ASSIGNMENT AND RECORDING.
\n ——————————— <\/p>\n
(a) This Agreement and the various rights and obligations
\narising hereunder shall inure to the benefit of and be binding upon Seller and
\nPurchaser and their respective successors and permitted assigns; provided that
\nnone of the representations or warranties made by Seller hereunder shall inure
\nto the benefit of any person or entity that may, after the Closing Date, succeed
\nto Purchaser’s interest in the Property.<\/p>\n
(b) Purchaser may not assign or otherwise transfer this
\nAgreement or any of its rights hereunder or in Purchaser, without first
\nobtaining Seller’s consent thereto, which consent Seller may grant or withhold
\nin its sole and absolute discretion. An assignment or transfer of this Agreement
\nshall not relieve Purchaser named herein of any of its obligations hereunder. An
\nassignment or a transfer in violation of this Section 28(b) shall be a default
\nhereunder by Purchaser.<\/p>\n
(c) Notwithstanding the provisions of subsection (b), above, the
\nPurchaser named herein shall have the right upon notice to Seller to assign this
\nAgreement one or more times to an Affiliate. Any such assignment shall be
\nconditioned upon Purchaser delivering to Seller an executed original of the
\nassignment and assumption agreement wherein the assignee assumes all of the
\nobligations of the Purchaser named herein and proof reasonably satisfactory to
\nSeller that the assignee constitutes an Affiliate. An assignment or transfer of
\nthis Agreement to an Affiliate shall not relieve the Purchaser named herein of
\nany of its obligations hereunder.<\/p>\n
(d) Neither this Agreement nor any memorandum hereof may be
\nrecorded without first obtaining Seller’s consent thereto. The recording of this
\nAgreement without Seller’s consent shall be a default by Purchaser hereunder.<\/p>\n
-38-<\/p>\n
(e) The provisions of Section 28(a) and 28(c) shall survive the
\n ————- —–
\nClosing or the termination hereof. The provisions of Section 28(b) shall
\n ————-
\nsurvive the termination hereof.<\/p>\n
29. CONFIDENTIALITY AND PRESS RELEASES.
\n ———————————- <\/p>\n
(a) Between the date hereof through and including the Closing
\nDate and except as otherwise expressly provided in clause (b) below, Purchaser
\n ———-
\nand Seller shall not (and shall use reasonable efforts to cause Purchaser’s and
\nSeller’s respective agents, employees, attorneys and advisors including, without
\nlimitation, financial institutions to not) disclose, make known, divulge,
\ndisseminate or communicate the Purchase Price or any of the terms of this
\nAgreement or this transaction or any agreement, document or understanding
\npertinent to the instant transaction without the consent of the other party,
\nexcept (i) as required by law, (ii) to Purchaser’s or Seller’s employees and
\nadvisors involved in the transaction, (iii) to Purchaser’s prospective lenders
\nor investors or (iv) to Seller’s lender or investors (the parties set forth at
\n(iii) and (iv) collectively, the “Permitted Outside Parties”). Purchaser
\n ————————-
\nfurther agrees that within its organization, or as to the Permitted Outside
\nParties, such information shall be disclosed and exhibited only to those persons
\nwithin Purchaser’s organization or to those Permitted Outside Parties who are
\nresponsible for determining the feasibility of the transaction contemplated
\nhereby to the extent necessary for such parties to discharge their duties and
\nprovided same agree in writing to be bound by these confidentiality provisions.<\/p>\n
(b) Prior to the Closing Date, Purchaser and Seller shall confer
\nand agree on a press release to be issued jointly by Purchaser and Seller
\ndisclosing the transaction and the appropriate time for making such release.
\nNeither Purchaser nor Seller shall issue any press releases (or other public
\nstatements) with respect to the transaction contemplated in this Agreement
\nwithout approval of the other party.<\/p>\n
(c) Purchaser and Seller shall cause their affiliates,
\nsubsidiaries, agents, employees and retained professionals to agree in writing
\nto comply with the provisions of this Section.<\/p>\n
(d) The provisions of Section 29(a) shall survive the
\n ————-
\ntermination of this Agreement and the provisions of Section 29(b) shall survive
\n ————-
\nthe termination hereof or the Closing.<\/p>\n
30. FURTHER ASSURANCES.
\n —————— <\/p>\n
Seller and Purchaser will do, execute, acknowledge and deliver all and
\nevery such further acts, deeds, conveyances, assignments, notices, transfers and
\nassurances as may be reasonably required by the other party, for the better
\nassuring, conveying, assigning, transferring <\/p>\n
-39-<\/p>\n
and confirming unto Purchaser the Property and for carrying out the intentions
\nor facilitating the consummation of this Agreement. The provisions of this
\nSection 30 shall survive the Closing.
\n———-<\/p>\n
31. THIRD PARTY BENEFICIARY.
\n ———————– <\/p>\n
This Agreement is an agreement solely for the benefit of Seller and
\nPurchaser (and their permitted successors and\/or assigns). No other person,
\nparty or entity shall have any rights hereunder nor shall any other person,
\nparty or entity be entitled to rely upon the terms, covenants and provisions
\ncontained herein.<\/p>\n
32. JURISDICTION AND SERVICE OF PROCESS.
\n ———————————– <\/p>\n
The parties hereto agree to submit to personal jurisdiction in the
\nState of New York in any action or proceeding arising out of this Agreement and,
\nin furtherance of such agreement, the parties hereby agree and consent that
\nwithout limiting other methods of obtaining jurisdiction, personal jurisdiction
\nover the parties in any such action or proceeding may be obtained within or
\nwithout the jurisdiction of any court located in New York and that any process
\nor notice of motion or other application to any such court in connection with
\nany such action or proceeding may be served upon the parties by registered or
\ncertified mail to or by personal service at the last known address of the
\nparties, whether such address be within or without the jurisdiction of any such
\ncourt.<\/p>\n
33. WAIVER OF TRIAL BY JURY.
\n ———————– <\/p>\n
SELLER AND PURCHASER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY
\nAND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN
\nCONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT. THE PROVISIONS
\nOF THIS SECTION 33 SHALL SURVIVE THE CLOSING OR THE TERMINATION HEREOF.
\n ———- <\/p>\n
34. AMENDMENT OF ZONING LOT DEVELOPMENT AGREEMENT.
\n ——————————————— <\/p>\n
(a) Purchaser acknowledges that it has received and reviewed a
\ncopy of the Zoning Lot Development Agreement dated August 13, 1998 between
\nSeller and 485 Fifth Avenue, LLC (the “ZLDA”) and has been advised that Seller
\n —-
\nis presently negotiating certain amendments to the ZLDA and has been advised by
\nSeller that negotiations are currently being conducted by Seller with respect to
\ncertain amendments to the ZLDA.<\/p>\n
Purchaser agrees that, prior to and following the Closing, Seller may
\nenter into an amendment to the ZLDA, such amendment to be in form and substance
\nidentical to the First Amendment to Zoning Lot Development Agreement annexed
\nhereto as Exhibit 7 (the “Proposed Amendment”). Purchaser further agrees that
\n ——————
\nSeller may make and agree to such <\/p>\n
-40-<\/p>\n
changes to the Proposed Amendment, provided that same does not adversely affect
\nthe rights of Purchaser, as owner of the Building, other than to a de minimis
\n ———-
\ndegree. beyond those set forth in the Proposed Amendment. In furtherance of the
\nforegoing, Seller is hereby irrevocably appointed the attorney-in-fact of
\nPurchaser in its name and stead to make all appropriate transfers and deliveries
\nin accordance with the terms hereof and, for that purpose, Seller may execute
\nany and all necessary documents reasonably required in connection with the
\namendment of the ZLDA and may substitute one or more persons with like power,
\nPurchaser hereby ratifying and confirming all that said attorneys or such
\nsubstitute or substitutes shall lawfully do by virtue hereof. The powers herein
\ngranted are coupled with an interest and are irrevocable. The appointment of
\nSeller as Purchaser’s attorney-in-fact shall only apply in connection with the
\namendment of the ZLDA as contemplated hereby.<\/p>\n
The parties hereto agree that Seller shall have the exclusive right to
\namend the ZLDA within the parameters set forth above and undertake, conduct and
\ncontrol, through counsel of its own choosing and at its own expense, the
\nprosecution, settlement or defense of any litigation (including but not limited
\nto an action for declaratory judgment) in connection with the amendment of the
\nZLDA, and Purchaser shall cooperate with it in connection therewith, provided
\nsame does not result in any cost or liability to Purchaser that Seller does not
\nreimburse upon demand. Purchaser shall cooperate fully in all aspects of any
\ninvestigation, defense, pretrial activities, trial, compromise, settlement or
\ndischarge of any such litigation, provided same does not result in any cost or
\nliability to Purchaser that Seller does not reimburse upon demand. Purchaser
\nfurther acknowledges and agrees that Purchaser shall not have the right to amend
\nor modify the ZLDA or to settle or otherwise participate in any action commenced
\nby Seller pursuant to the terms of this Section or to settle any action
\ncommenced against Purchaser with respect to the amendment of the ZLDA as
\ncontemplated hereby.<\/p>\n
(b) NorthStar Capital Investment Corp. agrees to indemnify and
\nhold Purchaser harmless from and against any and all claims, demands, causes of
\naction, losses, costs and expenses (including reasonable attorneys’ fees, court
\ncosts and disbursements) arising from the amendment of the ZLDA as contemplated
\nhereby, it being agreed to by the parties hereto that such indemnification
\nobligation shall terminate upon the execution and recording of an Amendment to
\nZLDA.<\/p>\n
(c) It is the intent of the parties hereto that the provisions
\nof this Section shall “run with the land” and at closing the Parties shall
\nexecute a memo, in recordable form, setting forth the substance of this Section
\n(the “ZLDA Memo”). Upon amendment of the ZLDA by Seller as provided for herein,
\n ———
\nSeller shall deliver and cause to be recorded, at its sole cost and expense,
\nsuch documentation as may reasonable be required to terminate the ZLDA Memo.<\/p>\n
(d) Seller agrees that, to the extent the execution and\/or
\nrecording of the ZLDA Memo or the amendment to the ZLDA require the consent of
\nLender, Seller shall be responsible for obtaining same at Seller’s sole cost and
\nexpense.<\/p>\n
-41-<\/p>\n
(e) It is expressly understood that in no event shall Seller be
\nrequired to enter into an amendment to the ZLDA.<\/p>\n
(f) The provisions of this Section 34 shall survive the Closing.
\n ———- <\/p>\n
35. “CHECK CASHING” LITIGATION
\n ————————–<\/p>\n
(a) Purchaser acknowledges that it has received and reviewed a
\ncopy of the Summons and Verified Complaint dated as of December 6, 1999 in the
\naction captioned “5 East 41 Check Cashing Corp., Plaintiff, against NorthStar
\n ———————————————————–
\n485 5th Holding LLC and E-Z Eating 41 Corp. d\/b\/a Burger King, Defendants”
\n————————————————————————-
\ncommenced in the Supreme Court of the State of New York -County of New York,
\nunder Index No. 12458\/99 (the “Check Cashing Litigation”) in connection with a
\n ————————
\ndispute with respect to certain space (the “Disputed Space”) at the Property and
\n ————–
\nhas been advised by Seller that settlement negotiations are currently being
\nconducted by Seller and the other parties to the Check Cashing Litigation.<\/p>\n
Purchaser agrees that, prior to and following the Closing, Seller may
\nsettle the Check Cashing Litigation upon such terms and conditions that it deems
\nacceptable in its sole and absolute discretion, provided that any such
\nsettlement shall not, except as expressly permitted by the next sentence, modify
\nthe rental payments due from either 5 East 41 Check Cashing Corp. or E-Z Eating
\n41 Corp. under their respective leases or the term under either the lease
\nentered into with 5 East 41 Check Cashing Corp. (the “Check Cashing Lease”) or
\n ——————-
\nthe lease entered into with E-Z Eating 41 Corp. (the “Burger King Lease”), or
\n —————–
\nresult in any loss or liability to Purchaser, or otherwise adversely affect
\nLandlord’s rights following the Closing or increase Landlord’s obligations
\nfollowing the Closing under either the Check Cashing Lease or the Burger King
\nLease, without the prior written consent of Purchaser, which consent may be
\ngranted or withheld in Purchaser’s sole discretion. Notwithstanding the
\nforegoing, Purchaser agrees that any settlement of the Check Cashing Litigation
\nentered into by Seller may provide for a reduction of the portion of the
\nPremises demised to Check Cashing by releasing the Disputed Space from such
\ndemised portion of the Premises, as well as an extension of the Check Cashing
\nLease at the expiration of its initial term for an additional term of up to ten
\n(10) years at a rate of rent no less than $65.84 per square foot for the period
\ncommencing on February 1, 2006 to and including January 31, 2007, with annual
\nincreases thereafter throughout such additional term, each such annual increase
\nto be in an amount no less than $2.50 per square foot, and consents thereto. In
\nfurtherance of the foregoing, Seller will do, execute, acknowledge and deliver
\nall and every such further acts, leases (including modifications and amendments
\nto existing leases) and other documents as may be reasonably required and for
\ncarrying out the intentions of this Section. Seller is hereby irrevocably
\nappointed the attorney-in-fact of Purchaser in its name and stead to execute,
\nacknowledge and deliver all such documents and, for that purpose, Seller may
\nexecute any and all necessary documents reasonably required in connection with
\nany amendment, modification or extension of the Check Cashing Lease within the
\nparameters set forth above and may substitute one or more persons with like
\npower, Purchaser hereby ratifying and confirming all that said attorneys or such
\nsubstitute or substitutes shall lawfully do by virtue hereof. The powers herein<\/p>\n
-42-<\/p>\n
granted are coupled with an interest and are irrevocable. The appointment of
\nSeller as Purchaser’s attorney-in-fact shall only apply in connection with the
\nextension of the Check Cashing Lease as contemplated hereby.<\/p>\n
(b) NorthStar Capital Investment Corp. agrees to indemnify and
\nhold Purchaser harmless from and against any and all claims, demands, causes of
\naction, losses, costs and expenses (including reasonable attorneys’ fees, court
\ncosts and disbursements) arising from any claim made by either 5 East 41 Check
\nCashing Corp. or E-Z Eating 41 Corp. arising out of the subject matter of the
\nCheck Cashing Litigation.<\/p>\n
In consideration of such indemnification, the parties hereto agree
\nthat Seller shall have the exclusive right to undertake, conduct and control,
\nthrough counsel of its own choosing and at its own expense, the prosecution,
\nsettlement or defense of the Check Cashing Litigation, and Purchaser shall
\ncooperate with it in connection therewith, provided same does not result in any
\ncost or liability to Purchaser. Purchaser shall, at Seller’s sole cost and
\nexpense, cooperate fully in all aspects of any investigation, defense, pretrial
\nactivities, trial, compromise, settlement or discharge of any claim in respect
\nof the Check Cashing Litigation. Purchaser further acknowledges and agrees that
\nPurchaser shall not have the right to settle or otherwise participate in the
\nCheck Cashing Action.<\/p>\n
(c) In the event that the Check Cashing Litigation is not
\nsettled on or before the ninetieth (90\/th\/) day after the Closing Date (the
\n“Cut-Off Date”), Seller shall reimburse Purchaser for any failure of 5 East
\n ————
\n41\/st\/ Check Cashing Corp. to pay rent due under the Check Cashing Lease from
\nand after the Cut-Off Date within ten (120) days after notice by Purchaser that
\n5 East 41\/st\/ Check Cashing Corp. has failed to pay the rent due and payable for
\nthe applicable period.<\/p>\n
(d) The provisions of this Section 35 shall survive the Closing.
\n ———- <\/p>\n
36. MISCELLANEOUS; DEFINITIONS.
\n ————————– <\/p>\n
(a) Whenever in this Agreement it is provided that Purchaser’s
\nsuccessors and\/or transferees and\/or assignees shall have any rights or
\nobligations, such phrase shall be deemed to include all designees of Purchaser
\nas well as all of the transferees, successors and assigns of Purchaser and such
\ndesignees.<\/p>\n
(b) This Agreement may be executed in multiple counterparts,
\neach of which shall be deemed an original and together constitute one and the
\nsame instrument.<\/p>\n
(c) Any consent or approval to be given hereunder (whether by
\nSeller or Purchaser) shall not be effective unless the same shall be given in
\nadvance of the taking of the action for which consent or approval is requested
\nand shall be in writing. Except as otherwise<\/p>\n
-43-<\/p>\n
expressly provided herein, any consent or approval requested of Seller or
\nPurchaser may be withheld by Seller or Purchaser in its sole and absolute
\ndiscretion.<\/p>\n
(d) Capitalized terms used in this Agreement shall have the
\nmeanings set forth in the Section of this Agreement referred to below:<\/p>\n
“Affiliate” shall mean any Person which, directly or indirectly
\n ———
\n through one or more intermediaries, controls and wholly owns, is controlled
\n and wholly-owned by, or is under common control with and wholly-owned by, such
\n Person first mentioned;<\/p>\n
“Agreement” shall have the meaning given to such term in the Preamble
\n ———
\n hereof;<\/p>\n
“Apportionment Date” shall have the meaning given to such term in
\n ——————
\n Section 5(a) hereof;<\/p>\n
“Assumed Debt” shall have the meaning given to such term in Section
\n ————
\n 2(e) hereof;<\/p>\n
“Assumed Debt Credit” shall have the meaning given to such term in
\n ——————-
\n Section 2(e) hereof;<\/p>\n
“Assumed Debt Documents” shall have the meaning given to such term in
\n ———————-
\n Section 2(e) hereof;<\/p>\n
“Broker” shall have the meaning given to such term in Section 13(a)
\n ——
\n hereof;<\/p>\n
“Building” shall have the meaning given to such term in the Recitals
\n ——–
\n hereof;<\/p>\n
“Burger King Lease” shall have the meaning given to such term in
\n —————–
\n Section 35 hereof;<\/p>\n
“Check Cashing Lease” shall have the meaning given to such term in
\n ——————-
\n Section 35 hereof;<\/p>\n
“Check Cashing Litigation” shall have the meaning given to such term
\n ————————
\n in Section 35 hereof;<\/p>\n
“Closing” shall have the meaning given to such term in Section 17(a)
\n ——-
\n hereof;<\/p>\n
“Closing Date” shall have the meaning given to such term in Section
\n ————
\n 17(a) hereof;<\/p>\n
“Collection Period” shall have the meaning given to such term in
\n —————–
\n Section 5(b)(ii) hereof;<\/p>\n
-44-<\/p>\n
“Commitment” shall have the meaning given to such term in Section
\n ———-
\n 4(a)(i) hereof;<\/p>\n
“Control” (including the correlative meaning of the terms “controlled
\n ——-
\n by” and “under common control with”) means the possession, direct or indirect,
\n of the power to direct or cause the direction of the management and policies
\n of an entity, whether through the ownership of voting securities, by contract
\n or otherwise;<\/p>\n
“Contracts” shall have the meaning given to such term in Section 1(a)
\n ———
\n hereof;<\/p>\n
“Damages” shall have the meaning given to such term in Section 10(b)
\n ——-
\n hereof;<\/p>\n
“Deposit” shall have the meaning given to such term in Section 2(a)
\n ——-
\n hereof;<\/p>\n
“Disputed Space” shall have the meaning given to such term in Section
\n ————–
\n 35 hereof;<\/p>\n
“Due Diligence” shall have the meaning given to such term in Section
\n ————-
\n 7(d) hereof;<\/p>\n
“Employment Agreements” shall have the meaning given to such term in
\n ———————
\n Section 10(b)(xii) hereof;<\/p>\n
“Engineering Reports” means all reports with respect to the structural
\n ——————-
\n or mechanical components of the located at any Property.<\/p>\n
“Environmental Law” means the following: (i) any federal, state or
\n local law, statute, ordinance, rule, regulation, guideline, code, license,
\n permit, authorization, approval, consent, legal doctrine, order, judgment,
\n decree, injunction, requirement or agreement with any governmental entity,
\n relating to (x) the protection, preservation or restoration of the environment
\n (including, without limitation, air, water, vapor, surface water, groundwater,
\n drinking water supply, surface land, subsurface land, plant and animal life or
\n any other natural resource), or to human health or safety, or (y) the exposure
\n to, or the use, storage, recycling, treatment, generation, transportation,
\n processing, handling, labeling, production, release or disposal of Hazardous
\n Materials. The term Environmental Law includes, without limitation, (i) the
\n federal Comprehensive Environmental Response Compensation and Liability Act of
\n 1980, the Superfund Amendments and Reauthorization Act, the federal Water
\n Pollution Control Act of 1972, the federal Clean Air Act, the federal Clean
\n Water Act, the federal Resource Conservation and Recovery Act of 1976
\n (including the Hazardous and Solid Waste Amendments thereto), the federal
\n Solid Waste Disposal Act and the federal Toxic Substances Control Act, the
\n Federal Insecticide, Fungicide and Rodenticide Act, the Atomic Energy Act, the
\n Nuclear Waste Policy Act of 1982, the federal Occupational Safety and Health
\n Act of 1970, and regulations promulgated thereunder, each as amended and as
\n now in effect, and (ii) any common law or equitable doctrine (including,
\n without limitation, injunctive relief and tort doctrines such as negligence,
\n nuisance, trespass and strict liability) that may impose liability<\/p>\n
-45-<\/p>\n
or obligations for injuries or damages due to, or threatened as a result of, the
\npresence of or exposure to any Hazardous Materials.<\/p>\n
“Environmental Reports” means all reports with respect to inspections
\n ———————
\nmade to discover Hazardous Materials, if any, at the Property.<\/p>\n
“Escrow Agent” shall have the meaning given to such term in Section
\n ————
\n2(a) hereof;<\/p>\n
“Escrow Account” shall have the meaning given to such term in Section
\n ————–
\n2(a) hereof;<\/p>\n
“Exculpated Parties” shall have the meaning given to such term in
\n ——————
\nSection 9(a) hereof;<\/p>\n
“Final Closing Statement” shall have the meaning given to such term in
\n ———————–
\nSection 5(n) hereof;<\/p>\n
“FIRPTA” shall have the meaning given to such term in Section 20
\n ——
\nhereof;<\/p>\n
“IRS” means the Internal Revenue Service.
\n — <\/p>\n
“Hazardous Materials” means any substance presently defined,
\n ——————-
\ndesignated or classified as hazardous, toxic, radioactive or dangerous, or
\notherwise regulated under any Environmental Law, whether by type or by quantity,
\nincluding any substance containing any such substance as a component. Hazardous
\nMaterials includes, without limitation, any toxic waste, pollutant, contaminant,
\nhazardous substance, toxic substance, hazardous waste, special waste, industrial
\nsubstance or petroleum or any derivative or by-product thereof, radon,
\nradioactive material, asbestos, asbestos containing material, urea formaldehyde
\nfoam insulation, lead and polychlorinated biphenyl, and any and all of the
\nfollowing, including mixtures thereof: any hazardous substance, pollutant,
\ncontaminant, waste, by-product or constituent regulated under the Comprehensive
\nEnvironmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
\net seq.; oil and petroleum products and natural gas, natural gas liquids,
\nliquefied natural gas and synthetic gas usable for fuel; pesticides regulated
\nunder the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section
\n136 et seq.; asbestos and asbestos-containing materials, PCBs and other
\nsubstances regulated under the federal Solid Waste Disposal Act and the federal
\nToxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; source material,
\nspecial nuclear material, by-product material and any other radioactive
\nmaterials or radioactive wastes, however produced, regulated under the Atomic
\nEnergy Act or the Nuclear Waste Policy Act of 1982; chemicals subject to the
\nOSHA Hazard Communication Standard, 29 C.F.R. (S)(S)1910.1200 et seq.; and
\nindustrial process and pollution control wastes, whether or not hazardous within
\nthe meaning of the Resource Conservation and Recovery Act, 42 U.S.C. Section
\n6901 et seq.<\/p>\n
-46-<\/p>\n
“known to” or “knowledge of” or similar terms mean, the actual
\n ——– ————
\nknowledge of David G. King, Jr., Gregory Peck, Laurie Shacter and Chris Edwards
\n(the “Seller Knowledge Individuals”) after reasonable due inquiry in the
\n —————————–
\nordinary course of business without any specific obligation to conduct their own
\ndue diligence of the project files. Without limiting the foregoing, Purchaser
\nacknowledges that the Seller Knowledge Individuals have not performed and are
\nnot obligated to perform any investigation or review of any files or other
\ninformation in the possession of Seller, or to make any inquiry of any persons
\nother than in the ordinary course of business without any specific obligation to
\nconduct their own due diligence of the project files, or to take any other
\nactions in connection with the representations and warranties of Seller set
\nforth in this Agreement. Neither the actual, present, conscious knowledge of any
\nother individual or entity, nor the constructive knowledge of the Seller
\nKnowledge Individuals or of any other individual or entity, shall be imputed to
\nthe Seller Knowledge Individuals. Seller represents that the Seller Knowledge
\nIndividuals are the parties employed by or on behalf of Seller who, in the
\nordinary course, would be reasonably expected to be most familiar with the
\noperation of the Property.<\/p>\n
“Hilfiger Lease” shall have the meaning given to such term in Section
\n ————–
\n5(b)(i) hereof;<\/p>\n
“Hilfiger Violation” shall have the meaning given to such term in
\n ——————
\nSection 3(h) hereof;<\/p>\n
“Land” shall have the meaning given to such term in the Recitals
\n —-
\nhereof;<\/p>\n
“Leases” shall have the meaning given to such term in Section 1(a)
\n ——
\nhereof;<\/p>\n
“Lender” shall have the meaning given to such term in Section 2(d)
\n ——
\nhereof;<\/p>\n
“Liens” shall have the meaning given to such term in Section 4(c)
\n —–
\nhereof;<\/p>\n
“Major Tenants” shall have the meaning given to such term in Section
\n ————-
\n16(a) hereof;<\/p>\n
“Mortgage” shall have the meaning given to such term in Section 2(e)
\n ——–
\nhereof;<\/p>\n
“New Closing Notice” shall have the meaning given to such term in
\n ——————
\nSection 4(d) hereof;<\/p>\n
“New Seller Violation” shall have the meaning given to such term in
\n ——————–
\nSection 3(h) hereof;<\/p>\n
“Non-Objectionable Encumbrances” shall have the meaning given to such
\n ——————————
\nterm in Section 4(a)(iv) hereof;<\/p>\n
-47-<\/p>\n
“Note” shall have the meaning given to such term in Section 2(e)
\n —-
\nhereof;<\/p>\n
“Notices” shall have the meaning given to such term in Section 18
\n ——-
\nhereof;<\/p>\n
“Past Due Rents” shall have the meaning given to such term in Section
\n ————–
\n5(b)(i) hereof;<\/p>\n
“Permitted Encumbrances” shall have the meaning given to such term in
\n ———————-
\nSection 3 hereof;<\/p>\n
“Permitted Outside Parties” shall have the meaning given to such term
\n ————————-
\nin Section 29(a) hereof;<\/p>\n
“Person” shall mean an individual, corporation, partnership, limited
\n ——
\nliability company, joint venture, estate, trust, unincorporated association, any
\nfederal, state, county or municipal government or any bureau, department,
\nauthority or agency thereof.<\/p>\n
“Personalty” shall have the meaning given to such term in Section 1(a)
\n ———-
\nhereof;<\/p>\n
“Preliminary Closing Statement” shall have the meaning given to such
\n —————————–
\nterm in Section 5(n) hereof;<\/p>\n
“Premises” shall have the meaning given to such term in the Recitals
\n ——–
\nhereof;<\/p>\n
“Proceeding” shall have the meaning given to such term in Section
\n ———-
\n10(b) hereof;<\/p>\n
“Proceeds” shall have the meaning given to such term in Section 10(b)
\n ——–
\nhereof;<\/p>\n
“Property” shall have the meaning given to such term in Section 1(a)
\n ——–
\nhereof;<\/p>\n
“Property Taxes” shall have the meaning given to such term in Section
\n ————–
\n5(a)(ii) hereof;<\/p>\n
“Proposed Amendment” shall have the meaning given to such term in
\n ——————
\nSection 34 hereof;<\/p>\n
“Purchase Price” shall have the meaning given to such term in Section
\n ————–
\n2 hereof;<\/p>\n
“Purchaser” shall have the meaning given to such term in the Preamble
\n ———
\nhereof;<\/p>\n
“Rents” shall have the meaning given to such term in Section 5(a)(i)
\n —–
\nhereof;<\/p>\n
-48-<\/p>\n
“RET” shall have the meaning given to such term in Section 15(a)
\n —
\nhereof;<\/p>\n
“Reserves” shall have the meaning given to such term in Section 2(e)
\n ——–
\nhereof;<\/p>\n
“RPT” shall have the meaning given to such term in Section 15(a)
\n —
\nhereof;<\/p>\n
“Seller” shall have the meaning given to such term in the Preamble
\n ——
\nhereof;<\/p>\n
“Scheduled Closing” shall have the meaning given to such term in
\nSection 17 hereof;<\/p>\n
“Taking” shall have the meaning given to such term in Section 12(a)
\n ——
\nhereof;<\/p>\n
“Tenant Inducement Costs” shall have the meaning given to such term in
\n ———————–
\nSection 5(k) hereof;<\/p>\n
“Title Company” shall have the meaning given to such term in Section
\n ————-
\n4(a)(i) hereof;<\/p>\n
“Title Cure Notice” shall have the meaning given to such term in
\n —————–
\nSection 4(a)(iv) hereof;<\/p>\n
“Title Cure Period” shall have the meaning given to such term in
\n —————–
\nSection 4(a)(iii) hereof;<\/p>\n
“Title Objections” shall have the meaning given to such term in
\n —————-
\nSection 4(a)(i) hereof;<\/p>\n
“Transferred Security Deposits” shall have the meaning given to such
\n —————————–
\nterm in Section 16(a)(ix) hereof;<\/p>\n
“Update Exception” shall have the meaning given to such term in
\n —————-
\nSection 4(a)(ii) hereof;<\/p>\n
“Update Objection Date” shall have the meaning given to such term in
\n ———————
\nSection 4(a)(ii) hereof;<\/p>\n
“Utilities” shall have the meaning given to such term in Section
\n ———
\n5(a)(iii) hereof; and<\/p>\n
“1999\/2000 Tax Year” shall have the meaning given to such term in
\n ——————
\nSection 14 hereof.<\/p>\n
-49-<\/p>\n
“Violation” shall have the meaning given to such term in Section 3(h)
\n ———
\nhereof;<\/p>\n
“ZLDA” shall have the meaning given to such term in Section 34 hereof;
\n —- <\/p>\n
“ZLDA Memo” shall have the meaning given to such term in Section 34
\n ———
\nhereof;<\/p>\n
Wherever it is provided in this Agreement that a party “may” perform
\nan act or do anything, it shall be construed that party “may, but shall not be
\nobligated to,” so perform or so do. The following words and phrases shall be
\nconstrued as follows: (i) “at any time” shall be construed as “at any time or
\nfrom time to time”; (ii) “any” shall be construed as “any and all”; (iii)
\n“including” shall be construed as “including but not limited to”; (iv) “will”
\nand “shall” shall each be construed as mandatory and (v) “withhold” (or
\n“withheld”) shall be construed as “withhold (withheld), condition(ed) or
\ndelay(ed).” Any time any reference is made to reasonable approval or consent,
\nsuch phrase shall be construed as including a restriction against any
\nunreasonable delay or condition relating to the giving of such approval or
\nconsent. Except as otherwise specifically indicated, all references to Article
\nor Section numbers or letters shall refer to Articles and Sections of this
\nAgreement and all references to Exhibits or Appendices shall refer to the
\nExhibits and Appendices attached to this Agreement. Words such as “herein,”
\n“hereinafter,” “hereof,” “hereto” and “hereunder,” when used with reference to
\nthis Agreement, refer to this Agreement as a whole and not to any particular
\nSection or subsection, unless the context otherwise requires. Forms of words in
\nthe singular, plural, masculine, feminine or neuter shall be construed to
\ninclude the other forms as the context may require. Captions and the index are
\nused in this Agreement for convenience only and shall not be used to construe
\nthe meaning of any part of this Agreement.<\/p>\n
[SIGNATURE PAGE FOLLOWS]<\/p>\n
-50-<\/p>\n
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to
\nbe executed the day and year first above written.<\/p>\n
SELLER:
\n ——-<\/p>\n
NORTHSTAR 485 5TH HOLDING LLC<\/p>\n
By: \/s\/ David G. King
\n —————————–
\n Name: David G. King
\n Title: Vice-President<\/p>\n
PURCHASER:
\n ———-<\/p>\n
TOMMY HILFIGER U.S.A., Inc.<\/p>\n
By: \/s\/ Steven R. Gursky
\n —————————–
\n Name: Steven R. Gursky
\n Title: Secretary<\/p>\n
BY ITS EXECUTION BELOW, THE
\nUNDERSIGNED AGREES TO BE BOUND
\nBY THE PROVISIONS OF SECTIONS 8(c), 8(d),
\n34(b) and 35(b) HEREOF:<\/p>\n
NorthStar Capital Investment Corp.<\/p>\n
By: \/s\/ David G. King
\n ————————–
\n Name: David G. King
\n Title: Vice-President<\/p>\n
-51-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7775],"corporate_contracts_industries":[9396],"corporate_contracts_types":[9603,9579],"class_list":["post-41737","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-hilfiger-tommy-corp","corporate_contracts_industries-consumer__clothing","corporate_contracts_types-land__ny","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41737","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41737"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41737"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41737"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41737"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}