Exhibit 10.8
InterOffice (Superholdings) Corporation
OPTION TO PURCHASE
THIS OPTION TO PURCHASE (the "Agreement") made this ____ day of May, 1998
by and between Reckson Management Group, Inc., having an address at 000
Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Seller") and Reckson Service
Industries, Inc., having an address at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000 ("Purchaser").
WHEREAS, Purchaser desires to acquire an option to purchase all of the
Seller's right, title and interest in Interoffice (Superholdings) Corporation
(collectively the "Interest"); and
WHEREAS, Seller desires to grant to Purchaser an option to purchase the
Interest;
NOW, THEREFORE, in pursuance of said agreement and in consideration of the
sum of [Ten Dollars ($10.00)] and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Seller hereby grants to Purchaser an option, upon the terms and
conditions hereinafter set forth (the "Option"), to acquire the Interest. The
Option may be exercised by Purchaser in the manner hereinafter set forth from
the date hereof through and including the fifth (5th) anniversary of the date
hereof (the "Option Period"). In the event Purchaser elects to exercise the
Option, it shall give written notice thereof to Seller (the "Option Notice"),
which Option Notice must be received by Seller on or before the expiration of
the Option Period. In the event that the Option Notice is not delivered to
Seller on or prior to the expiration of the Option Period, the option shall be
terminated and of no further force and effect and neither party shall have any
further rights or liabilities under this paragraph. In the event the Option
Notice is delivered to Seller prior to the expiration of the Option Period, then
the Contract of Sale attached hereto as Exhibit A (the "Contract of Sale") shall
be deemed a binding agreement, dated the date of actual receipt by Seller of the
Option Notice, between Seller and Purchaser without the need for execution
thereof.
2. Seller may not sell or otherwise transfer the Interest to any party
other than Purchaser.
3. All notices hereunder shall be in writing and may be given either by (a)
federal express or other nationally recognized overnight courier or (b) hand
delivery, in each case to the Seller or Purchaser, as applicable, at the address
first set forth above. Notices shall be deemed given one day after posting, if
given pursuant to (a) above or upon delivery, if given pursuant to (b) above.
4. Time shall be of the essence with regard to all notices given hereunder.
5. All matters relating to the operation, construction or interpretation of
this Agreement shall be governed and determined by the internal laws of the
State of New York, without giving effect to the principles of conflicts of laws.
6. Unless specifically provided herein, no failure by any party to insist
upon the strict performance of any covenant, duty, agreement or condition of
this Agreement or to exercise any right or remedy upon a breach thereof shall
constitute a waiver of any such breach of any other covenant, agreement, term or
condition set forth herein. Neither this Agreement nor any provision hereof may
be waived, modified, amended, discharged or terminated except by an instrument
signed by the party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument. No waiver shall affect or alter the remainder of this
Agreement but each and every covenant, agreement, term and condition hereof
shall continue in full force and effect with respect to any other then existing
or subsequent breach.
7. This Agreement constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings of the parties in connection
therewith. No covenant, representation or condition not expressed in this
Agreement shall affect, or be effective to interpret, change or restrict, the
express provisions of this Agreement.
8. This Agreement may not be assigned, transferred or conveyed by Purchaser
to any person(s) or entity without the prior written consent of Seller.
9. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs or successors and permitted assigns.
10. No provision of this Agreement is intended, nor shall it be
interpreted, to provide or create any third party beneficiary rights or any
other rights of any kind in any customer, affiliate, stockholder, partner,
director, officer or employee of any party hereto or any other person or entity.
11. 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. 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 Purchaser to effect such replacement.
12. 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 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 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.
13. In connection with any litigation or a court proceeding arising out of
this Agreement, the prevailing party shall be entitled to recover all costs
incurred, including reasonable attorneys' fees and costs whether incurred prior
to trial, at trial, or on appeal.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement the
day and year first above written.
RECKSON MANAGEMENT GROUP, INC., Seller
By: ___________________________
Name:
Title:
RECKSON SERVICE INDUSTRIES, INC.,
Purchaser
By: ___________________________
Name:
Title:
EXHIBIT A
---------
THIS CONTRACT (the "Contract") dated as of ________ __, 199_ between
RECKSON MANAGEMENT GROUP, INC., having an address at 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000 ("Seller") and RECKSON SERVICE INDUSTRIES INC., having
an address at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Purchaser").
In consideration of the mutual covenants and agreements contained herein,
and intending to be legally bound hereby, Seller and Purchaser hereby agree as
follows:
ARTICLE 1. Sale of Premises and Acceptable of Title
----------------------------------------
Section 1.01. Seller shall sell and convey to Purchaser, and Purchaser
shall purchase from Seller, at the price and upon, the terms and conditions set
forth in this Contract, all of its right, title and interest in Interoffice
(Superholdings) Corporation (the "Interest").
ARTICLE 2. Purchase Price and Acceptable Funds
-----------------------------------
Section 2.01. The purchase price ("Purchase Price") to be paid by Purchaser
to Seller for the Interest shall be the Seller's cost in acquiring the Interests
of [$13.8 million], plus interest at a rate of 8% per annum from January 27,
1998 (the date on which the Seller acquired the interest).
Section 2.02. All monies payable under this Contract, unless otherwise
specified in this Contract, shall be paid by wire transfer or other form of
payment acceptable to the Seller.
ARTICLE 3. The Closing
-----------
Section 3.01. Except as otherwise provided in this Contract, the closing of
the purchase of the Interest pursuant to this Contract ("Closing") shall take
place at the offices of Xxxxx & Xxxx LLP, 56th Floor, Xxx Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 on or before the thirtieth (30th) day following the
execution of this Contract as agreed by the parties at 10 a.m. ("Closing Date").
ARTICLE 4. Representations and Warranties of Seller
----------------------------------------
Seller represents and warrants to Purchaser as follows:
Section 4.01. (a) Seller is the sole owner of, and has good and marketable
title to, the Interest.
(b) Interoffice (Superholdings) Corporation is a duly formed and validly
existing corporation under the laws of [Delaware] and is duly qualified to
transact business in each jurisdiction in which it is required to be so
qualified;
(c) Interoffice (Superholdings) Corporation has good title to all of its
assets;
(d) Since January 1, 1998, there has been no material adverse change in the
business, assets, or business prospects of Interoffice (Superholdings)
Corporation;
(e) Seller is a duly formed and validly existing corporation under the laws
of New York State and has the full power, authority and legal right to execute
and deliver this Contract and the instruments contemplated hereby and to observe
and perform the provisions hereof;
(f) the execution and delivery of this Contract, the consummation of the
transactions provided for herein and the fulfillment of the terms hereof on the
part of Seller will not result in a breach of any instrument to which Seller is
a party or by which Seller is bound or of any judgment, decree or order of any
court or governmental body or any law, rule or regulation applicable to Seller;
and
(g) Interoffice (Superholdings) Corporation is not now a party to any
litigation or administrative or other proceedings, and Seller knows of no such
litigation or proceedings or threatened litigation or proceedings.
ARTICLE 5. Acknowledgements of Purchaser
-----------------------------
Section 5.01. Purchaser acknowledges that before entering into this
Contract, Purchaser has made such examination of the Interoffice (Superholdings)
Corporation, the operation, income and expenses thereof and all other matters
affecting or relating to this transaction as Purchaser deemed necessary. In
entering into this Contract, Purchaser has not been induced by and has not
relied upon any representations, warranties or statements, whether express or
implied, made by Seller or any agent, employee or other representative of Seller
or by any broker or any other person or entity representing or purporting to
represent Seller, which are not expressly set forth in this Contract, whether or
not any such representations, warranties or statements were made in writing or
orally.
ARTICLE 6. Seller's Closing Obligations
----------------------------
Section 6.01. At the Closing, Seller shall deliver stock certificates
representing the Interest, if any, and shall cause the Purchaser's name to be
reflected on the books and records of Interoffice (Superholdings) Corporation as
the sole owner of the Interest.
Section 6.02. Seller shall deliver a resolution of the board of directors
of Seller authorizing the sale of the Interest contemplated herein and a
certificate executed by the secretary or assistant secretary of Seller
resolution.
Section 6.03. Any other documents required by this Contract to be delivered
by Seller.
ARTICLE 7. Purchaser's Closing Obligations
-------------------------------
At the Closing, Purchaser shall:
Section 7.01. Deliver to Seller the Purchase Price.
Section 7.02. Deliver any other documents required by this Contract to be
delivered by Purchaser.
ARTICLE 8. Broker
------
Section 8.01. Seller and Purchaser mutually represent and warrant that
neither Seller nor Purchaser know of any broker who has claimed, or may have the
right to claim, a commission or any similar finder's fee in connection with this
transaction. Seller and Purchaser shall indemnify and defend each other against
any costs, claims or expenses, including reasonable attorneys' fees, arising out
of the breach on their respective parts of any representations, warranties or
agreements contained in this Section. The representations and obligations under
this Section shall survive the Closing or, if the Closing does not occur, the
termination of this Contract.
ARTICLE 9. Notices
-------
Section 9.01. All notices hereunder by either party to the other shall be
sent by hand delivery or nationally recognized overnight delivery service,
addressed to Seller and Purchaser at the addresses first set forth above. Notice
shall be deemed given one day after posting if sent by nationally recognized
overnight delivery service, or upon delivery if delivered by hand or facsimile
transmission.
ARTICLE 10. Limitations on Survival of Representations,
-----------------------------------------------
Warranties, Covenants and other Obligations
-------------------------------------------
Section 10.01. Except as otherwise provided in this Contract, the
representations, warranties, covenants or other obligations of Seller set forth
in this Contract shall survive until the last day of the twelfth calendar month
following the Closing Date and no action based thereon shall be commenced
thereafter.
ARTICLE 11. Miscellaneous Provisions
------------------------
Section 11.01. This Contract embodies and constitutes the entire
understanding between the parties with respect to the transaction contemplated
herein, and all prior agreements, understandings, representations and
statements, oral or written, are merged into this Contract. Neither this
Contract nor any provision hereof may be waived, modified, amended, discharged
or terminated except by an instrument signed by the party against whom the
enforcement of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such instrument.
Section 11.02. This Contract shall be governed by, and construed in
accordance with, the internal laws of the State of New York without giving
effect to the principles of conflicts of laws.
Section 11.03. The captions in this Contract are inserted for convenience
of reference only and in no way define, describe or limit the scope or intent of
this Contract or any of the provisions hereof.
Section 11.04. This Contract shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs or successors and
permitted assigns.
Section 11.05. As used in this Contract, the masculine shall include the
feminine and neuter, the singular shall include the plural and the plural shall
include the singular, as the context may require.
Section 11.06. No provision of this Contract is intended, nor shall it be
interpreted, to provide or create any third party beneficiary rights or any
other rights of any kind in any customer, affiliate, stockholder, partner,
director, officer or employee of any party hereto or any other person or entity.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of
the date first above written.
RECKSON MANAGEMENT GROUP, INC., Seller
By: ________________________________
Name:
Title:
RECKSON SERVICE INDUSTRIES, INC.,
Purchaser
By: ________________________________
Name:
Title:
