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EXHIBIT 10.37
TOWER 45
OMNIBUS OPTION AGREEMENT
This Omnibus Option Agreement (the "AGREEMENT"), dated as of the 31st day
of July, 1997, is entered into by and between TOWER REALTY OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"),
and XXXXX U.S.A. INC. (the "GRANTOR").
R E C I T A L S:
A. The Grantor owns a limited partner interest in Tower 45 Associates
Limited Partnership, a Delaware limited partnership (the "PARTNERSHIP").
B. The Operating Partnership desires to acquire through a contribution to
capital from the Grantor, and the Grantor desires to grant to the Operating
Partnership, an option to acquire, on the terms and conditions set forth herein,
all interests owned by the Grantor in the Partnership as set forth on Schedule A
attached hereto and any other direct or indirect interests the Grantor may have,
whether now owned or hereinafter acquired, in the Partnership, or in the
properties owned by the Partnership (collectively, the "INTERESTS".)
C. The Operating Partnership desires to acquire the Interests in
connection with (i) the formation of Tower Realty Trust, Inc., a Maryland
corporation (the "COMPANY"), which intends to qualify as a real estate
investment trust and which is the sole general partner and a limited partner of
the Operating Partnership, and (ii) the proposed initial public offering (the
"IPO") and concurrent private placement (collectively, "OFFERINGS") of shares of
the Company's common stock, par value $0.01 per share ("COMMON STOCK").
NOW, THEREFORE, in consideration of ten dollars ($10.00) paid by the
Operating Partnership to the Grantor, these premises, the mutual covenants and
conditions set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Operating
Partnership and Grantor agree as follows:
ARTICLE I: THE OPTION
1.1 Grant of Option. The Grantor hereby irrevocably grants to the
Operating Partnership the right and option (the "OPTION") to acquire through a
contribution to the capital of the Operating Partnership all the Grantor's
right, title and interest in the Interests, including but not limited to, the
Interest set forth on Schedule A attached hereto, on the terms and conditions
set forth herein.
1.2 Term and Exercise of Option. The Option may be exercised by the
Operating Partnership at any time from and after the date hereof through 5:00
p.m. on December 31, 1997 (the "OPTION TERMINATION DATE"); provided, that if on
the Option Termination Date the Operating Partnership or the Grantor is
prohibited by applicable law, or the Operating Partnership or the Grantor is
subject to a stay, order, injunction, or similar limitation or any pending or
threatened action or proceeding to enjoin, restrain, prohibit or assess
substantial damages in respect of the exercise by the Operating Partnership of
the Option, then the Option may be exercised by the Operating Partnership during
the 10 business day period commencing on the first business day following the
removal of each such prohibition, stay, order, injunction, action, proceeding or
similar limitation in effect at that time. Subject to the foregoing, if the
Operating Partnership does not exercise the Option by the Option Termination
Date, such Option shall be deemed terminated and shall be of no further force or
effect and the Grantor shall have no further obligations hereunder.
1.3 Acquisition Consideration. (a) The consideration (the "ACQUISITION
CONSIDERATION") to be received by the Grantor in respect of the contribution of
the Grantor's Interests to the Operating Partnership shall be an amount
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equal to $74,074. The Acquisition Consideration shall be paid in the form of a
combination of (i) cash and/or (ii) units of limited partnership interest in the
Operating Partnership ("OP UNITS"), in the percentages and allocations set forth
on Schedule B attached hereto. To the extent a percentage of the Acquisition
Consideration includes one or more OP Units, as set forth on Schedule B, the
number of OP Units the Grantor shall be entitled to receive upon the exercise of
the Option with respect to such percentage shall equal the quotient of
(A) the amount of Acquisition Consideration to be paid in OP
Units, divided by
(B) the midpoint of the proposed per share offering price for
the shares of Common Stock as set forth in the final preliminary
prospectus included in the Company's Registration Statement on Form
S-11 prepared and filed with the Securities and Exchange Commission
in connection with the IPO.
1.4 Lock-Up Agreements. The OP Units to be issued to the Grantor hereunder
shall be subject to Lock-Up Agreements to be executed at the Closing (as
hereinafter defined) by the Operating Partnership and the Grantor, substantially
in the forms attached as Exhibits A and B attached hereto, whereby the Grantor
will not be permitted to transfer OP Units for two years after the Closing,
except as otherwise permitted under such agreement.
1.5 Other Agreements. At or prior to the Closing, the Company, the
Grantors and the other parties thereto shall enter into a Registration Rights
Agreement and an Exchange Rights Agreement, as described in Section 5.1(a) and
substantially in the forms attached as Exhibits C and D, respectively.
ARTICLE II: CLOSING PROCEDURES
2.1 Purchase of Interests. Upon the Operating Partnership's exercise of
the Option, the Grantor shall, in accordance with Section 2.2 hereof, transfer,
assign, and convey to the Operating Partnership and the Operating Partnership
shall accept as a contribution to its capital from the Grantor, all right, title
and interest in and to the Interests, free and clear of all Encumbrances (as
defined in Section 3.1(a)), in exchange for the Acquisition Consideration.
2.2 Closing; Conditions to Obligations. (a) (i) The Operating Partnership
shall exercise the Option by delivering to the Grantor a notice (the
"OPTION NOTICE"), which notice shall state the date (the "CLOSING DATE")
of the closing of the transactions contemplated by Section 2.1 (the
"CLOSING"), which date shall be no less than 10 days and no more than 30
days following the date of such Option Notice.
(i) The Closing shall be held within the period specified in the
Option Notice at the offices of Battle Xxxxxx LLP, 75 East 55th Street,
New York, New York, or at the offices of the attorneys for the lead
underwriter of the IPO.
(ii) Following delivery of the Option Notice, the Operating
Partnership and the Grantor will at or prior to the Closing execute and
deliver all closing documents (the "CLOSING DOCUMENTS") required by the
Operating Partnership pursuant to Section 2.3 and, pending the Closing,
deposit such Closing Documents in escrow with Battle Xxxxxx, LLP as escrow
agent of the Operating Partnership (the "ESCROW AGENT").
(b) The Closing will occur simultaneously with the closing of the
Offerings (the "OFFERINGS CLOSING"); provided, that the Offerings Closing shall
be deemed to have occurred only if that portion of the net proceeds from the
Offerings which is to be contributed to the Operating Partnership by the Company
is sufficient, as determined by the Operating Partnership in its reasonable
discretion, to enable the Operating Partnership (i) to acquire all the
Interests, and (ii) to apply such portion of the net proceeds to acquire such
other properties or interests, to repay principal, interest and other amounts
due with respect to indebtedness and to meet such other obligations as may be
described in the Registration Statement on Form S-11 prepared and filed in
connection with the IPO (the "REGISTRATION STATEMENT"), as the same shall be in
effect on the day of the Offerings Closing.
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(c) The following deliveries shall be made at the Closing:
(i) the Operating Partnership shall cause to be delivered to the
Escrow Agent or its designee
(A) the Acquisition Consideration (any cash portion of which
shall be delivered in immediately available funds by check or wire
transfer),
(B) a certificate of the general partner of the Operating
Partnership (the "GENERAL PARTNER") certifying that the Grantor has
been or will be, effective as of the Closing, admitted as a limited
partner of the Operating Partnership and that the Operating
Partnership's books and records indicate or will indicate that the
Grantor is the holder of the number of OP Units that Grantor is
entitled to receive pursuant to Section 1.3, and
(C) if such OP Units are to be represented by certificates, a
certificate or certificates in the name of the Grantor representing
the number of OP Units to which the Grantor is entitled; and
(ii) upon receipt of the consideration set forth in clause (i) above
and the documents and deliveries required by Section 2.3, the Escrow Agent
will release the Closing Documents to the Operating Partnership and
deliver to the Grantor the Acquisition Consideration.
(d) Notwithstanding any other provision of this Agreement, the Operating
Partnership may, in its sole discretion, elect not to consummate the
contribution of all or any portion of the Interests as follows:
(i) in the event that the Grantor either identifies in its
Assignment as defined in and delivered pursuant to Section 2.3(a) a breach
of or other exception with respect to any of the representations,
warranties or covenants contained in Article III or has otherwise breached
this Agreement, or
(ii) in the event that all authorizations, consents or approvals of
any governmental or administrative agency or authority or any third party
necessary in order to consummate the contribution of the Interests, or
there exists an order or judgment enjoining, restraining or prohibiting,
or assessing substantial damages in respect of such consummation, or there
shall be any action or proceeding instituted or threatened in writing to
enjoin, restrain, prohibit or assess substantial damages in respect of
such consummation,
then, the Operating Partnership shall, in lieu of the delivery of the
Acquisition Consideration pursuant to clause (c)(i) above, either
(x) in the case of an election not to consummate the contribution of
all of the Interests, notify the Escrow Agent of such election and direct
the Escrow Agent to return the Grantor's Closing Documents to the Grantor,
or
(y) in all other cases, equitably adjust the delivery with respect
to the Grantor pursuant to clause (c)(i) above to reflect the portion of
the Grantor's Interests with respect to which the purchase is actually
being made (provided, that, in no event shall the Acquisition
Consideration, as adjusted hereunder, consist of less than one OP Unit),
which adjustment shall be determined in the Operating Partnership's
reasonable discretion, and shall in all events be binding upon the
Grantor.
(e) Except as the result of a default by the Grantor hereunder, if the
Closing does not occur within 30 days of the date of the Option Notice, then
neither the Operating Partnership nor the Grantor shall have any obligations
under the Closing Documents, the Closing Documents shall be deemed null and void
ab initio and the Operating Partnership will direct the Escrow Agent to destroy
the Closing Documents it holds. This Agreement shall thereafter remain in effect
and the Operating Partnership may thereafter exercise the Option again at any
time before the Option Termination Date.
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2.3 Documents to Be Delivered at the Closing. At or prior to the Closing,
the Grantor shall, directly or through the attorney-in-fact appointed pursuant
to Article V hereof, execute, acknowledge where deemed necessary or desirable by
the Operating Partnership, and deliver to the Escrow Agent, in addition to any
other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in
the form attached hereto as Exhibit E and shall contain a warranty of title that
the Grantor owns the Interests free and clear of all Encumbrances (as defined in
Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and
the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those
representations, warranties and/or covenants contained in Article III
hereof which the Grantor can no longer make or comply with, represent that
the Grantor has used reasonable efforts to take such actions as would
permit the Grantor to make such representations and warranties and/or to
comply with such covenants, and reaffirm the accuracy of all other
representations and warranties and the satisfaction of all other covenants
contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the
Grantor is a corporation, partnership, limited liability company or trust, a
certified copy of all necessary or appropriate corporate resolutions or
partnership, limited liability company or trust actions authorizing the
execution, delivery and performance by the Grantor of this Agreement and the
Closing Documents.
(c) If requested by the Operating Partnership in the case where the
Grantor is a corporation, partnership, limited liability company or trust, an
opinion from counsel for the Grantor in form and content reasonably acceptable
to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general
partnership, limited liability company or trust duly organized, validly
existing and in good standing under the laws of the state of its
organization and had and has all applicable power and authority to
execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this
Agreement and the Closing Documents, and the transactions contemplated
hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's
charter and/or bylaws, partnership agreement, operating agreement
and articles of organization or declaration of trust, as applicable,
or, to the knowledge of such counsel, any indenture, deed of trust,
mortgage, loan or credit agreement or other material agreement or
instrument to which the Grantor is a party or by which it or its
assets or properties are bound or affected, except for such breach
or violation as the Operating Partnership has represented and
warranted will be waived or cured, or discharged or repaid prior to
or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation
or any order, judgment or decree to which the Grantor is a party or
by which it or any of its assets or properties are bound or
affected; or
(C) to the knowledge of such counsel, result in the creation
of any lien, charge or encumbrance upon any of the Grantor's assets
or properties, except for Permitted Pledges (as defined in Section
3.1(a)); and
(iii) all applicable corporate, partnership, limited liability
company or trust action necessary for the Grantor to execute and deliver this
Agreement and the Closing Documents and to perform the transactions contemplated
hereby and thereby has been taken and that the same have been validly executed
and delivered and are the valid and
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binding obligations of the Grantor enforceable against it in accordance with
their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting
creditors' rights and remedies generally.
(d) An affidavit establishing an exemption from the withholding
requirements of the Foreign Investment in Real Property Tax Act ("FIRPTA"), as
amended, provided, however, that if the Grantor fails to provide such an
affidavit, the Operating Partnership shall be entitled to withhold from the
Acquisition Consideration and pay to the Internal Revenue Service the sums
required to be withheld pursuant to FIRPTA (and the amount so withheld shall be
paid by the Operating Partnership to the Internal Revenue Service, in order for
the Operating Partnership to comply with the provisions of Section 1445 of the
Internal Revenue Code of 1986 or successor similar legislation, as the same may
be amended hereafter).
(e) The Lock-up Agreements, a duly executed signature page to the Amended
and Restated Agreement of Limited Partnership of the Operating Partnership, a
copy of which is attached hereto as Exhibit F, (the "PARTNERSHIP AGREEMENT"),
the Exchange Rights Agreement, and the Registration Rights Agreement.
(f) Any other documents, agreements or instruments as the Operating
Partnership shall reasonably request in order to assign, transfer and convey the
Grantor's Interests to the Operating Partnership and to otherwise effect the
transactions contemplated hereby, including filings with any applicable
governmental jurisdiction in which the Operating Partnership is required to file
its partnership documentation.
2.4 Cessation of Offerings. If at any time the Board of Directors of the
Company determines in good faith to abandon the formation of the Company or the
Offerings, the Operating Partnership will so advise the Grantor in writing and
thereupon all parties hereto will be relieved of all obligations under this
Agreement and all Closing Documents (except for obligations arising under
Sections 2.5, 2.6, 3.5, 4.2 and 6.10).
2.5 Closing Costs. The Operating Partnership agrees to pay all of the
closing costs, other than the Grantor's legal fees, arising from the purchase of
the Interests pursuant to the exercise by the Operating Partnership of the
Option.
2.6 Default. (a) If after having exercised the Option, the Operating
Partnership fails to consummate the transactions contemplated hereby (including
a failure due to the Offerings Closing not having occurred), then the Operating
Partnership will pay to the Grantor the sum of $100.00 as liquidated and agreed
upon damages. The parties acknowledge that it would be difficult, if not
impossible, to ascertain the actual measure of the Grantor's damages in the
event of the Operating Partnership's default and the parties agree that $100.00
is a fair reflection of the Grantor's damages in such event.
(b) If the Grantor defaults with respect to its obligations under this
Agreement, the Operating Partnership shall be entitled to exercise against the
Grantor any and all remedies provided at law or in equity, including but not
limited to, the right of specific performance.
2.7 Further Assurances. The Grantor will, from time to time, execute and
deliver to the Operating Partnership all such other and further instruments and
documents and take or cause to be taken all such other and further action as the
Operating Partnership may reasonably request in order to effect the transactions
contemplated by this Agreement, including instruments or documents deemed
necessary or desirable by the Operating Partnership to effect and evidence the
purchase of the Grantor's Interests by the Operating Partnership in accordance
with the terms of this Agreement.
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ARTICLE III:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE GRANTOR
As a material inducement to the Operating Partnership to enter into this
Agreement and to consummate the transactions contemplated hereby, the Grantor
hereby makes to the Operating Partnership each of the representations and
warranties set forth in this Article III, which representations and warranties
(unless otherwise noted) are true as of the date hereof. As a condition to the
Operating Partnership's obligation to purchase the Interests after the exercise
of the Option, such representations and warranties must be true as of the
Closing Date.
3.1 Title to Interests. (a) Except as set forth on Schedule C attached
hereto, the Grantor owns beneficially and of record, free and clear of any
claim, lien, pledge (except for pledges relating to the debt or equity financing
of any real property owned by the Partnership (any such pledge, a "PERMITTED
PLEDGE")), voting agreement, option, charge, security interest, mortgage, deed
of trust, encumbrance, right of assignment, purchase right or other rights of
any nature whatsoever (each, an "ENCUMBRANCE"), and has full power and authority
to convey free and clear of any Encumbrances, its Interests and, upon delivery
of an Assignment by the Grantor conveying its Interests and delivery of the
Acquisition Consideration by the Operating Partnership for such Interests as
herein provided, the Operating Partnership will acquire good and valid title
thereto, free and clear of any Encumbrance, except Encumbrances created in favor
of the Operating Partnership by the transactions contemplated hereby.
(b) Each of the Grantor's Interests representing an interest in the
Partnership has been validly issued and the Grantor has funded (or will fund
before the same is past due) all capital contributions and advances to the
Partnership in which such Interest represents an interest that is required to be
funded or advanced prior to the date hereof and the Closing.
(c) There are no agreements, instruments or understandings with respect to
any of the Interests except, in the case of any Interest constituting an
interest in the Partnership, as set forth in the partnership agreement of the
Partnership.
(d) The Grantor has no interest, either direct or indirect, in any of the
partnerships or properties set forth on Schedule D attached hereto (the"Other
Partnerships and Properties") except for the Interests identified on Exhibit A
which are the subject of this Agreement, and other interests in the Other
Partnerships and Properties which are the subject of other, similar, option
agreements with the Operating Partnership.
(e) No Permitted Pledge will be in existence as of the date of the
Closing, and the Grantor shall provide, at the Closing, such documentary
evidence of the release of any Permitted Pledge as the Operating Partnership may
reasonably request.
(f) In making the representations in this Section 3.1 regarding the
absence of Encumbrances, the Grantor may assume that the consents and waivers of
rights set forth in Section 6.9 hereof have been given by all partners of the
Partnership, partners in partnerships, members of limited liability companies or
beneficiaries of trusts (in each case, only in their capacity as such) in which
the Grantor's Interests represent direct or indirect interests.
3.2 Organization; Authority; No Conflicts. (a) If the Grantor is not a
natural person, it is a corporation, limited partnership, general partnership,
limited liability company or trust duly organized, validly existing and in good
standing under the laws of the state of its organization.
(b) The Grantor has full right, authority, power and capacity:
(i) to execute and deliver this Agreement, each Closing Document and
each other agreement, document and instrument to be executed and delivered
by or on behalf of the Grantor pursuant to this Agreement;
(ii) to perform the transactions contemplated hereby and thereby;
and
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(iii) to transfer, assign, convey and deliver all of the Interests
to the Operating Partnership in accordance with this Agreement.
(c) All applicable corporate, partnership, limited liability company,
trust or other action necessary for Grantor to execute and deliver this
Agreement, the Closing Documents and each other agreement, document and
instrument executed by or on behalf of the Grantor pursuant to this Agreement,
and to perform the transactions contemplated hereby and thereby, has been taken,
or will be taken prior to the Closing Date.
(d) This Agreement, each Closing Document and each other agreement,
document and instrument executed and delivered by or on behalf of the Grantor
pursuant to this Agreement constitutes, or when executed and delivered will
constitute, the legal, valid and binding obligation of the Grantor, each
enforceable in accordance with its respective terms.
(e) Except for any breaches, violations or defaults which will be waived
or cured, or discharged or repaid prior to or contemporaneously with the
Closing, the execution, delivery and performance of this Agreement, the Closing
Documents and each other agreement, document and instrument to be executed and
delivered by or on behalf of the Grantor:
(i) does not and will not violate the Grantor's charter and/or
bylaws, partnership agreement, operating agreement or declaration of
trust, as applicable;
(ii) does not and will not violate any foreign, federal, state,
local or other laws applicable to the Grantor or require the Grantor to
obtain any approval, consent or waiver of, or make any filing with, any
person or authority (governmental or otherwise) that has not been obtained
or made and which does not remain in effect; and
(iii) does not and will not result in a breach or a violation of,
constitute a default under, accelerate any obligation under or give rise
to a right of termination of, any indenture, deed of trust, mortgage, loan
or credit agreement or any other agreement, contract, instrument, lease,
permit, authorization, order, writ, judgment, injunction, decree,
determination or arbitration award to which the Grantor is a party or by
which the property of the Grantor is bound or affected, or result in the
creation of any Encumbrance on any of the property or assets of any
Partnership in which any Interest of the Grantor represents an interest.
(f) In making the representations set forth in this Section 3.2, the
Grantor may assume
(i) that the consents and waivers of rights set forth in Section 6.9
hereof have been given by all partners of the Partnership, partners in
partnerships, members of limited liability companies or beneficiaries of
trusts (in each case, only in their capacity as such) in which the
Grantor's Interests represent direct or indirect interests and
(ii) that, for purposes of making such representation as of the date
hereof, any Permitted Pledge has been released.
3.3 Litigation. (a) The Grantor knows of no litigation or proceeding,
whether judicial, administrative or arbitral, pending or overtly threatened,
affecting all or any portion of the Interests or the Grantor's ability to
consummate the transactions contemplated hereby.
(b) The Grantor knows of no outstanding order, writ, injunction or decree
of any court, government, governmental entity or authority or arbitration
against or affecting all or any portion of its Interests, which in any such case
would impair the Grantor's ability to enter into and perform all of its
obligations under this Agreement.
3.4 No Other Agreements. (a) The Grantor has made no agreement with, and
will not enter into any agreement with, and has no obligation (absolute or
contingent) to, any other person or entity to sell, transfer, dispose of or in
any
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way encumber any of the Interests or restricting in any way the Grantor's
ability to sell the Interests to the Operating Partnership or to enter into any
agreement with respect to the Interests.
(b) In making the representations set forth in this Section 3.4, the
Grantor may assume
(i) that the consents and waivers of rights set forth in Section 6.9
hereof have been given by all partners of the Partnership, partners in
partnerships, members of limited liability companies or beneficiaries of
trusts (in each case, only in their capacity as such) in which the
Grantor's Interests represent direct or indirect interests and
(ii) that, for purposes of making such representations as of the
date hereof, any Permitted Pledge has been released.
3.5 No Brokers. The Grantor has not entered into, and covenants that it
will not enter into, any agreement, arrangement or understanding with any person
or entity which will result in the obligation of the Operating Partnership to
pay any finder's fee, brokerage commission or similar payment in connection with
the transactions contemplated hereby.
3.6 Investment Representations and Warranties.
(a) (i) The Grantor has received and reviewed a copy of the Private
Placement Memorandum (the "PRIVATE PLACEMENT MEMORANDUM") prepared in
connection with the contribution of Interests to the capital of the
Operating Partnership (which Private Placement Memorandum includes a draft
Registration Statement, the Summary of Partnership Agreement Provisions
(the "PARTNERSHIP SUMMARY") and the Summary of Tax Matters (the "TAX
MATTERS SUMMARY"), and understands the risks of, and other considerations
relating to, an investment in OP Units.
(ii) The Grantor, by reason of its business and financial
experience, together with the business and financial experience of those
persons, if any, retained by it to represent or advise it with respect to
its investment in OP Units,
(A) has such knowledge, sophistication and experience in
financial and business matters and in making investment decisions of
this type that it is capable of evaluating the merits and risks of
and of making an informed investment decision with respect to an
investment in OP Units,
(B) is capable of protecting its own interest or has engaged
representatives or advisors to assist it in protecting its interests
and
(C) is capable of bearing the economic risk of such
investment.
(iii) (A) The Grantor is an "accredited investor" as defined in Rule
501 of the regulations promulgated under the Securities Act.
(B) If the Grantor has retained or retains a person to
represent or advise it with respect to its investment in OP Units,
the Grantor will advise the Operating Partnership of such retention
and, at the Operating Partnership's request, the Grantor shall,
prior to or at the Closing,
(I) acknowledge in writing such representation and
(II) cause such representative or advisor to deliver a
certificate to the Operating Partnership containing such
representations as may be reasonably requested by the
Operating Partnership.
(b) (i) The Grantor understands that an investment in the Operating
Partnership involves substantial risks.
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(ii) The Grantor has been given the opportunity to make a thorough
investigation of the proposed activities of the Operating Partnership and
has been furnished with materials relating to the Operating Partnership
and its proposed activities, including, without limitation, the Private
Placement Memorandum, the Partnership Summary and the Tax Matters Summary.
(iii) The Grantor has been afforded the opportunity to obtain any
additional information requested by it.
(iv) The Grantor has had an opportunity to ask questions of and
receive answers from representatives of the Operating Partnership
concerning the Operating Partnership and its proposed activities and the
terms and conditions of an investment in OP Units.
(v) The Grantor has relied and is making its investment decision
based upon the Private Placement Memorandum, the Partnership Summary, the
Tax Matters Summary and other written information provided to the Grantor
by or on behalf of the Operating Partnership.
(c) (i) The OP Units to be issued to the Grantor at the Closing will be
acquired by the Grantor for its own account, for investment only and not
with a view to, or with any intention of, a distribution or resale
thereof, in whole or in part, or the grant of any participation therein.
(ii) The Grantor was not formed for the specific purpose of
acquiring an interest in the Operating Partnership.
(d) (i) The Grantor acknowledges that
(A) the OP Units to be issued to the Grantor at the Closing
have not been registered under the Securities Act or state
securities laws by reason of a specific exemption or exemptions from
registration under the Securities Act and applicable state
securities laws and, if such OP Units are represented by
certificates, such certificates will bear a legend to such effect,
(B) the Company's and the Operating Partnership's reliance on
such exemptions is predicated in part on the accuracy and
completeness of the representations and warranties of the Grantor
contained herein,
(C) the OP Units to be issued to the Grantor at the Closing
may not be resold or otherwise distributed unless registered under
the Securities Act and applicable state securities laws, or unless
an exemption from registration is available,
(D) there is no public market for such OP Units, and
(E) the Operating Partnership has no obligation or intention
to register such OP Units under the Securities Act or any state
securities laws or to take any action that would make available any
exemption from the registration requirements of such laws, except as
provided in the Registration Rights Agreement (as defined below).
(ii) The Grantor hereby acknowledges that because of the
restrictions on transfer or assignment of such OP Units to be issued
hereunder, which will be set forth in the Partnership Agreement and in the
Lockup Agreements, the Grantor may have to bear the economic risk of the
investment commitment evidenced by this Agreement and any OP Units issued
hereunder for an indefinite period of time, although, if applicable,
(A) under the terms of the Exchange Rights Agreement, as it
will be in effect at the time of the Offerings, OP Units will,
subject to the limitations set forth in the Exchange Rights
Agreement, be exchangeable at the request of the holder thereof at
any time after the first anniversary of their
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issuance for cash based on their fair market value or, at the option
of the Company, for Common Stock and
(B) the holder of any such Common Stock issued upon exchange
of OP Units will be afforded certain rights to have such Common
Stock registered under the Securities Act and applicable state
securities laws pursuant to the Registration Rights Agreement (as
described in Section 5.1 (a)).
(e) The address set forth under the Grantor's signature on the signature
page hereto is the address of the Grantor's principal place of business or, if a
natural person, the address of the Grantor's residence, and the Grantor has no
present intention of becoming a resident of any country, state or jurisdiction
other than the country and state in which such principal place of business or
residence is situated.
3.7 Private Placement Memorandum. (a) The Grantor understands and
acknowledges that the Private Placement Memorandum, including, but not limited
to, the descriptions of the various transactions relating to the formation and
business of the Company and the Operating Partnership set forth in the Private
Placement Memorandum, are in draft form only, and such transactions are subject
to change without the consent of the Grantor.
(b) Without limiting the foregoing, such changes may include the deletion
(or addition) of one or more properties expected to be acquired by the Operating
Partnership and changes in the amount of the indebtedness expected to be repaid
with the proceeds of the Offerings.
(c) The Operating Partnership shall not be obligated to obtain the
Grantor's consent as a result of such changes, although such changes could
affect the nature and value of the Grantor's investment in OP Units.
3.8 Covenant to Remedy Breaches. The Grantor covenants to use all
reasonable efforts within its control
(a) to prevent the breach of any representation or warranty of the Grantor
hereunder,
(b) to satisfy all covenants of the Grantor hereunder and
(c) to promptly clear any breach of a representation, warranty or covenant
of the Grantor hereunder upon its learning of same.
ARTICLE IV:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE OPERATING PARTNERSHIP
As a material inducement to the Grantor to enter into this Agreement and
to consummate the transactions contemplated hereby, the Operating Partnership
hereby makes to the Grantor each of the representations and warranties set forth
in this Article IV, which representations and warranties are true as of the date
hereof and shall be true as of the date of the Closing.
4.1 Authority. (a) The Operating Partnership is a limited partnership duly
organized, validly existing and in good standing under the laws of the state of
Delaware.
(b) The Operating Partnership has full right, authority, power and
capacity:
(i) to execute and deliver this Agreement, each Closing Document to
which it is a party and each other agreement, document and instrument to
be executed and delivered by or on behalf of it pursuant to this
Agreement;
(ii) to perform the transactions contemplated hereby and thereby;
and
(iii) to issue OP Units to the Grantor pursuant to and in accordance
with the terms of this Agreement.
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(c) This Agreement, each Closing Document to which the Operating
Partnership is a party and each agreement, document and instrument executed and
delivered by the Operating Partnership pursuant to this Agreement constitutes,
or when executed and delivered will constitute, the legal, valid and binding
obligation of the Operating Partnership, each enforceable in accordance with its
respective terms.
(d) The execution, delivery and performance of this Agreement, each
Closing Document to which the Operating Partnership is a party and each such
agreement, document and instrument by the Operating Partnership:
(i) does not and will not violate the partnership agreement of the
Operating Partnership;
(ii) does not and will not violate any foreign, federal, state,
local or other laws applicable to the Operating Partnership or require the
Operating Partnership to obtain any approval, consent or waiver of, or
make any filing with, any person or authority (governmental or otherwise)
that has not been obtained or made and which does not remain in effect;
and
(iii) does not and will not result in a breach or a violation of,
constitute a default under, accelerate any obligation under or give rise
to a right of termination of, any indenture, deed of trust, mortgage, loan
or credit agreement, any other material agreement, contract, instrument,
lease, permit or authorization, or any order, writ, judgment, injunction,
decree, determination or arbitration award to which the Operating
Partnership is a party or by which the property of the Operating
Partnership is bound or affected.
4.2 No Brokers. The Operating Partnership has not entered into, and
covenants that it will not enter into, any agreement, arrangement or
understanding with any person or entity which will result in the obligation of
the Grantor to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
ARTICLE V: POWER OF ATTORNEY
5.1 Grant of Power of Attorney. (a) The Grantor does hereby irrevocably
appoint Xxxxxxxx X. Xxxxxxx, Xxxxxx Xxx and the Operating Partnership, and each
of them individually, with full power of substitution (each such person or the
Operating Partnership or any such successor of any of them acting in his, her or
its capacity as attorney-in-fact pursuant hereto, an "ATTORNEY-IN-FACT"), as the
true and lawful attorney-in-fact and agent of the Grantor, to act in the name,
place and stead of the Grantor:
(i) To take for the Grantor all steps deemed necessary or advisable
by the Operating Partnership in connection with the Offerings, including
without limitation
(A) filing a registration statement and amendments thereto
(the "Registration Statement") under the Securities Act which
describes the benefit to be received by the Grantor in connection
with the formation of the Company and the offering of the Company's
Common Stock,
(B) distributing a preliminary prospectus and prospectus
regarding the offering of the Company's Common Stock (respectively,
the "PRELIMINARY PROSPECTUS" and "PROSPECTUS") which contain such
information as is deemed necessary or desirable to lawfully effect
the IPO, and preliminary and final offering memoranda regarding the
offering of the Company's Common Stock in the concurrent private
placement, which contain such information as is deemed necessary or
desirable to effect the concurrent private placement,
(C) to enter into the Exchange Rights Agreement, the
Registration Rights Agreement (which, if applicable, provides the
Grantor certain rights to have the Common Stock which may be issued
to the Grantor upon exchange of the Grantor's OP Units registered
under the Securities Act), and the Lock-Up Agreements, and
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(D) to take such other steps as the Attorney-in-Fact may deem
necessary or advisable.
(ii) To make, execute, acknowledge and deliver all such other
contracts, orders, receipts, notices, requests, instructions,
certificates, consents, letters and other writings (including without
limitation the Closing Documents, any other documents relating to the sale
of the Grantor's Interests to the Operating Partnership, and any consents
contemplated by Section 6.9 hereof) and, in general, to do all things and
to take all actions which the Attorney-in-Fact in its sole discretion may
consider necessary or proper in connection with or to carry out the
transactions contemplated by this Agreement and the Closing Documents as
fully as could the Grantor if personally present and acting.
(b) (i) The Power of Attorney granted by the Grantor pursuant to this
Article V and all authority conferred hereby is granted and conferred
subject to and in consideration of the interest of the Operating
Partnership and the Company and is for the purpose of completing the
transactions contemplated by this Agreement.
(ii) The Power of Attorney of the Grantor granted hereby and all
authority conferred hereby is coupled with an interest and therefore shall
be irrevocable and shall not be terminated by any act of the Grantor or by
operation of law, whether by the death, disability, incapacity,
dissolution or liquidation of the Grantor or by the occurrence of any
other event or events (including without limitation the termination of any
trust or estate for which the Grantor is acting as a fiduciary or
fiduciaries), and if, after the execution hereof, the Grantor shall die or
become disabled or incapacitated or is dissolved or liquidated, or if any
other such event or events shall occur before the completion of the
transactions contemplated by this Agreement, each Attorney-in-Fact shall
nevertheless be authorized and directed to complete all such transactions
as if such death, disability, incapacity, dissolution, liquidation or
other event or events had not occurred and regardless of notice thereof.
(c) The Grantor agrees that, at the request of the Operating Partnership,
it will promptly execute a separate power of attorney on the same terms set
forth in this Article V, such execution to be witnessed and notarized.
(d) The Grantor acknowledges that Xxxxxxxx Xxxxxxx, Xxxxxx Xxx and the
Operating Partnership have, and any successor thereof acting as Attorney-in-Fact
may have, an economic interest in the transactions contemplated by this
Agreement.
5.2 Limitation on Liability. (a) It is understood that each
Attorney-in-Fact assumes no responsibility or liability to any person by virtue
of the Power of Attorney granted by the Grantor hereby.
(b) Each Attorney-in-Fact makes no representations with respect to and
shall have no responsibility for the formation of the Company, the purchase of
the Interests by the Operating Partnership, the Registration Statement, the
Prospectus or any Preliminary Prospectus, nor for any aspect of either Offering,
and it shall not be liable for any error of judgment or for any act done or
omitted or for any mistake of fact or law except for its own gross negligence or
bad faith.
(c) The Grantor agrees to indemnify each Attorney-in-Fact for and to hold
each Attorney-in-Fact harmless against any loss, claim, damage or liability
incurred or in part arising out of or in connection with its acting as
Attorney-in-Fact under the Power of Attorney created by the Grantor hereby, as
well as the cost and expense of investigating and defending against any such
loss, claim, damage or liability, except to the extent such loss, claim, damage
or liability is due to the gross negligence or bad faith of such
Attorney-in-Fact.
(d) The Grantor agrees that each Attorney-in-Fact may consult with counsel
of its own choice (who may be counsel for the Operating Partnership and/or the
Company) and it shall have full and complete authorization and protection for
any action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel.
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5.3 Ratification; Third Party Reliance. The Grantor does hereby ratify and
confirm all that any Attorney-in-Fact shall lawfully do or cause to be done by
virtue of the exercise of the powers granted unto it by the Grantor hereunder,
and the Grantor authorizes the reliance of third parties on this Power of
Attorney and waives its right, if any, as against any such third party for its
reliance hereon.
ARTICLE VI: MISCELLANEOUS
6.1 Amendment and Waiver. Any amendment hereto shall be effective only
against those parties hereto who have acknowledged in writing their consent to
such amendment. This Agreement without notice to or the consent of the Grantor
for the purpose of adding additional Grantors as parties hereto or deleting
Grantors as parties hereto and conforming Exhibits A and B in connection with
such additions or deletions. No waiver of any provisions of this Agreement shall
be valid unless in writing and signed by the party against whom enforcement is
sought.
6.2 Entire Agreement; Counterparts; Applicable Law. This Agreement
(a) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof,
(b) may be executed in several counterparts, each of which will be deemed
an original and all of which shall constitute one and the same instrument and
(c) shall be governed in all respects, including validity, interpretation
and effect, by the laws of the State of New York, without giving effect to the
conflicts of law provisions thereof.
6.3 Assignability. This Agreement shall be binding upon, and shall be
enforceable by and inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and assigns; provided,
however, that this Agreement may not be assigned (except by operation of law) by
the Operating Partnership without the prior written consent of the Grantor, or
by the Grantor without the prior written consent of the Operating Partnership,
and any attempted assignment without such consent shall be void and of no
effect; provided, further, however, that the Operating Partnership may assign
all or any portion of this Agreement and the Closing Documents and any agreement
contemplated hereunder or thereunder to the Company or to an affiliate of the
Operating Partnership or the Company without the consent of the Grantor.
6.4 Titles. The titles and captions of the Articles, Sections and
paragraphs of this Agreement are included for convenience of reference only and
shall have no effect on the construction or meaning of this Agreement.
6.5 Third Party Beneficiary. No provision of this Agreement is intended,
nor shall it be interpreted, to provide or create any third party beneficiary
right or any other right of any kind in any customer, affiliate, stockholder,
partner, director, officer or employee of any party hereto or any other person
or entity, provided, however, that Article V and Sections 6.3 and 6.9 of this
Agreement shall be enforceable by and shall inure to the benefit of the persons
described therein.
6.6 Severability. (a) If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto.
(b) The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
the void or unenforceable provision and to execute any amendment, consent or
agreement deemed necessary or desirable by the Operating Partnership to effect
such replacement.
6.7 Equitable Remedies. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
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breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any federal or state court
located in the State of New York (as to which the parties agree to submit to
jurisdiction for the purposes of such action), this being in addition to any
other remedy to which they are entitled under this Agreement or otherwise at law
or in equity.
6.8 Notices; Exercise of Option. Any notice or demand which must or may be
given under this Agreement (including the exercise by the Operating Partnership
of the Option) or by law shall, except as otherwise provided, be in writing and
shall be deemed to have been given (i) when physically received by personal
delivery (which shall include the confirmed receipt of a telecopied facsimile
transmission), (ii) three (3) business days after being deposited in the United
States certified or registered mail, return receipt requested, postage prepaid,
or (iii) one (1) business day after being deposited with a nationally known
commercial courier service utilizing its next day delivery service (such as
Federal Express); addressed and delivered or telecopied in the case of a notice
to the Operating Partnership to the following address and telecopy number:
Tower Realty Operating Partnership, L.P.
c/o Feldman Equities
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Phone: (000)000-0000
Telecopy: (000)000-0000
with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
Phone: (000)000-0000
Telecopy: (000)000-0000
and addressed and delivered or telecopied, in the case of a notice to the
Grantor, to the address and telecopy number set forth under the Grantor's name
in Schedule A hereto.
6.9 Waiver of Rights; Consents with Respect to Partnership Interests. (a)
The Grantor acknowledges that the agreements contained herein and the
transactions contemplated hereby and any actions taken in contemplation of the
transactions contemplated hereby (including the declaration of any dividend or
distribution in the form of Interests) may conflict with, and may not have been
contemplated by, the partnership agreement of one or more Other Partnerships in
which one or more of the Interests represent a direct or indirect interest or
another agreement among one or more holders of such Interests or one or more of
the partners of any such partnership.
(b) With respect to each Other Partnership in which the Interests
represents a direct or indirect interest, the Grantor expressly gives all
Consents (as defined below) (and any consent necessary to authorize the proper
parties in interest to give all Consents) and Waivers (as defined below)
necessary or desirable to facilitate any Conveyance Action (as defined below)
relating to such partnership (as such terms are defined below).
(c) The Grantor further agrees that the Grantor will take no action to
enjoin, or seek damages resulting from, any Conveyance Action by any holder of a
direct or indirect interest in a partnership in which an Interest of the Grantor
represents a direct or indirect interest.
(d) The Waivers and Consent contained in this Section 6.9 shall terminate
upon the termination of this Agreement, except as to transactions completed
hereunder prior to termination.
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(e) (i) As used herein, the term "CONVEYANCE ACTION" means, with respect
to any Other Partnership having a direct or indirect ownership interest in
any property,
(A) the conveyance or agreement to convey by a partner thereof
or by any holder of an indirect interest therein of its direct or
indirect interest in such partnership to the Operating Partnership
or the Company or to another person in connection with the formation
of the Operating Partnership or the Company as described in the
Registration Statement, or
(B) the entering into by any such partner or holder of any
agreement relating to
(I) the formation of the Operating Partnership or the
Company as described in the Registration Statement,
(II) the direct or indirect acquisition by the Operating
Partnership or the Company of any such direct or indirect
interest, or
(III) the transactions described in or contemplated by
the Registration Statement, or
(C) the taking by any such partner or holder of any action
necessary or desirable to facilitate any of the foregoing,
including, without limitation, the following (provided that the same
are taken in furtherance of the foregoing):
(I) any sale or distribution to any person of a direct
or indirect interest in such partnership or an undivided
tenant-in-common interest in the property represented by such
partnership interest,
(II) the entering into of any agreement with any person
or entity that grants to such person or entity the right to
purchase a direct or indirect interest in such partnership,
and
(III) the giving of the Consents and Waivers contained
in this Section 6.9 or consents or waivers similar thereto in
form or purpose.
(ii) As used herein, the term "CONSENTS" means, with respect to any
such partnership, any consent deemed by the Operating Partnership to be
necessary or desirable under the partnership agreement of such partnership
or any other agreement among all or any of the holders of interests
therein or any other agreement relating thereto or referred to therein
(A) to permit any and all Conveyance Actions relating to such
partnership or to amend such partnership agreement and/or other
agreements so that no provision thereof prohibit, restricts, impairs
or interferes with any Conveyance Action (such amendment to include,
without limitation, the deletion of provisions which cause a default
under such agreement if interests therein are transferred for other
than cash),
(B) to admit the Operating Partnership (or the Company or any
affiliate of the Operating Partnership or the Company in accordance
with Section 6.3 above) as a substitute limited partner or general
partner of such partnership upon the Operating Partnership's
acquisition of a limited or general partner interest therein,
respectively, and to adopt such amendment as is necessary or
desirable to effect such admission,
(C) to adopt any amendment as may be deemed desirable by the
Operating Partnership, either simultaneously with or immediately
prior to the acquisition of a limited or general partnership
interest therein, provided, however, that such amendment will not
result in any increased liability on the part of the Grantor
hereunder or under the applicable partnership agreement, and
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(D) to continue such partnership following the transfer of
interests therein to the Operating Partnership (or the Company or
any affiliate of the Operating Partnership or the Company in
accordance with Section 6.3 above).
(iii) As used herein, the term "WAIVERS" means, with respect to a
partnership of which an Interest represents a direct or indirect interest,
the waiving of any and all rights that the Grantor may have with respect
to, and (to the extent possible) that any other person may have with
respect to, or that may accrue to the Grantor or other person upon the
occurrence of, a Conveyance Action relating to such partnership,
including, but not limited to, the following rights:
(A) rights of notice,
(B) rights to response periods,
(C) rights to purchase the direct or indirect interest of
another partner in such partnership (or the Interests represented by
such partnership interest) or to sell the Grantor's or other
person's direct or indirect interest therein to another partner,
(D) rights to sell the Grantor's or other person's direct or
indirect interest therein at a price other than as provided herein,
or
(E) rights to prohibit, limit, invalidate, otherwise restrict
or impair any such Conveyance Action or to cause a termination or
dissolution of such partnership because of such Conveyance Action.
(f) The Grantor by its execution hereof
(i) with respect to each Other Partnership in which an Interest
owned by the Grantor represents a direct or indirect interest therein,
gives such consent as is necessary to cause each Partnership, as
applicable, to have authority to transfer all or substantially all of the
assets of such Partnership to the Operating Partnership on such terms and
conditions as such Other Partnership and the Operating Partnership may
agree; and
(ii) agrees that the Grantor's Acquisition Consideration may be
reduced to reflect such direct transfer of assets and the consequent
receipt of cash and other consideration directly by such Other
Partnership, provided that the total consideration to be received by the
Grantor either directly hereunder or indirectly through the receipt of
distributions from an Other Partnership shall equal Grantor's Acquisition
Consideration.
(g) (i) The Grantor by its execution hereof gives such consent as is
necessary to cause, with respect to the partnership agreement of each
partnership in which an Interest of the Grantor represents, directly or
indirectly, a limited partner or general partner interest, an amendment
thereto to enable such partnership, to the extent permissible under
applicable law,
(A) to admit the Operating Partnership (or the Company or any
affiliate of the Operating Partnership or the Company in accordance
with Section 6.3 above) as a substitute limited partner therein
and/or a substitute general partner therein if the Operating
Partnership (or the Company or any affiliate of the Operating
Partnership or the Company in accordance with Section 6.3 above) by
the exercise of the Option acquires a limited partnership interest
or a general partnership interest in such partnership,
(B) to redeem the interest of any other partner therein who
has not agreed to become a party to this Agreement,
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(C) to distribute to all partners thereof, including any
partner who has not agreed to become a party to this Agreement, OP
Units and cash (in such proportions to each partner therein as the
general partner or general partners thereof may determine, provided
that the Grantor receives as a result of all such distributions and
the direct payment of consideration hereunder, the amount of cash
that is in conformity with the Acquisition Consideration of the
Grantor provided for herein), and thereafter, at the Operating
Partnership's option, to dissolve, and
(D) any such other amendment as the Operating Partnership may
deem desirable,
provided that such amendment occurs simultaneously with or immediately
prior to the acquisition of the applicable partnership interest, and
provided further, that such amendment will not result in any increased
liability on the part of the Grantor hereunder or under the applicable
partnership agreement.
(ii) Each Attorney-in-Fact may on behalf of the Grantor execute such
consents, amendments or other instruments as it deems necessary or
desirable in connection with the foregoing.
6.10 Confidentiality. (a) The Grantor shall treat as strictly confidential
the fact that the Company is contemplating an offering of its Common Stock until
such time as the Company has filed the Registration Statement with the
Securities and Exchange Commission, and shall not communicate at any time the
terms of this Agreement to any person other than counsel or advisors to the
Grantor who agree to keep such terms confidential and any lender holding a lien
on any Interests.
(b) The Grantor shall treat all information received from the Operating
Partnership or its counsel or advisors pertaining to the Operating Partnership
or the Company confidential and shall disseminate same only to counsel to the
Grantor who agree to keep such information confidential.
6.11 Computation of Time. Any time period provided for herein which shall
end on a Saturday, Sunday or bank or legal holiday shall extend to 5:00 p.m. of
the next full business day. All times are New York City time.
6.12 Survival. It is the express intention and agreement of the parties
hereto that the representations, warranties and covenants of the Grantor set
forth in this Agreement shall survive the consummation of the transactions
contemplated hereby.
6.13 Time of the Essence. Time is of the essence with respect to all
obligations of the Grantor under this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
OPERATING PARTNERSHIP:
TOWER REALTY OPERATING
PARTNERSHIP, L.P.
By: TOWER REALTY TRUST, INC.,
its general partner
By: /s/Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
and President
XXXXX U.S.A. INC.
By: /s/Daisake Hyode
---------------------------------------
Name: Daisake Hyode
Title: President
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Schedule A
Interests
Grantor's Name & Address Description of Interests
------------------------ ------------------------
Xxxxx U.S.A. Inc. 1-2/3% (1.67%) Class A
0000 Xxxxxxxxx Xxx. Limited Partner Interest in the
#000 Xxxxxxxxxxx.
Xxxxxxxx, XX 00000-0000
20
Schedule B
Form of Acquisition Consideration
100% OP Units
21
Schedule C
Exceptions to Title
None
22
Schedule D
Interests in Other Partnerships and Properties (see below)
None
Other Partnerships and Properties
Property Partnership Owner
-------- -----------------
1. 000 Xxxxxxx Xxxxxx 000 Xxxxxxx, X.X.
Xxx Xxxx, Xxx Xxxx
0. 000 Xxxxxxx Xxxxxx 000 Xxxxxxx, X.X.
Xxx Xxxx, Xxx Xxxx
0. 000 Xxxxxxx Xxxxxx 292 Madison, L.P.
New York, New York
4. 120 Executive Centre Tower Mineola Limited Partnership
Mineola, New York (former owner was CXX Mineola Limited
Partnership)
5. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000-00 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
6. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
7. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
8. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
9. Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Associates, Limited Partnership
Phoenix, Arizona
10. Corporate Center Building 9630 Corporate Center Associates, Limited Partnership
Phoenix, Arizona
11. 0000 Xxxxx Xxxxxxx Xxxxxx 2800 Associates, L.P.
Phoenix, Arizona
12. Century Plaza Executive Villas Limited Partnership
Phoenix, Arizona
13. 0000 X. Xxxxxxxx Xxxx Xxxxxxxx 5151 Limited Partnership
Tucson, Arizona
14. One Orlando Center Magnolia Associates Limited Partnership
Orlando, Florida
15. Maitland Forum Maitland Property Investors, Ltd.
Maitland, Florida
16. 0000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxx Associates Limited Partnership
Maitland, Florida
