Exhibit 10.15
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
OPTION TO PURCHASE
THIS OPTION TO PURCHASE (the "AGREEMENT") made this 6th day of August, 1997
by and between Green 110E42 Realty LLC, having an address at ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("SELLER") and ▇▇ ▇▇▇▇▇ Operating Partnership, L.P.,
having an address at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("PURCHASER").
WHEREAS, Purchaser desires to acquire an option to purchase Seller's
interest as contract vendee ("SELLER'S INTEREST") of the Property, as defined in
the Contract of Sale attached hereto as Exhibit A and made a part hereof (the
"AGREEMENT OF SALE"); and
WHEREAS, Seller desires to grant to Purchaser an option to purchase the
Seller's 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 Seller's
Interest. The Option may be exercised by Purchaser in the manner hereinafter
set forth from the date hereof through and including the tenth (10th)
anniversary of the date hereof (the "OPTION PERIOD"). In the event
Purchaser elects to exercise the Option, Purchaser shall give written notice
thereof to Seller (the "OPTION NOTICE"), which Option Notice must (a) be
received by Seller on or before the expiration of the Option Period and (b)
be accompanied by Purchaser's unendorsed certified check in an amount equal
to Seller's Investment (as defined below) to the order of Seller. In the
event that the Option Notice is not delivered to Seller on or prior to the
expiration of the Option Period or the Option Notice is not accompanied by
Purchaser's unendorsed, certified check in an amount equal to the Seller's
Investment, 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 and the Seller's Investment are
delivered to Seller prior to the expiration of the Option Period, Seller
shall, assign all of its right title and interest in the Agreement of Sale to
Purchaser pursuant to an assignment in the form of EXHIBIT B attached hereto
and made a part hereof. As used herein "SELLER'S INVESTMENT" shall mean a
sum equal to all funds of whatever nature invested by Seller in
connection with the acquisition of the Property, including, without limitation,
(a) all sums paid to ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates Limited Partnership
("OWNER") pursuant to the Agreement of Sale, (b) sums incurred in connection
with any financing of sums paid to Owner or otherwise incurred in connection
with the purchase of the Property, including, without limitation, principal and
interest and commitment and application fees, (c) all accounting, legal,
architectural, and engineering fees and expenses, (d) all other fees and
expenses incurred in connection with any of the foregoing and (e) interest on
all such sums at a rate equal to 12% from the date each such expense is actually
incurred through and including the date the Option is exercised.
2. Seller may not sell or otherwise transfer the Seller's Interest to any
party other than Purchaser (a "THIRD PARTY") without giving at least thirty (30)
days prior written notice (the "SALE NOTICE") of such sale or transfer to
Purchaser, which notice shall be accompanied by a copy of the proposed contract
to be executed in connection with such sale or transfer. Upon receipt of the
Sale Notice, Purchaser may, by giving notice to Seller within fifteen (15) days,
exercise the Option on the terms contained herein and, at the sole and absolute
option of Purchaser, either sell the Seller's Interest to the Third Party on the
terms and conditions set forth in the aforementioned proposed contract, or such
other terms as Purchaser and Third Party shall subsequently agree upon, or
retain the option to purchase the Seller's Interest pursuant to the terms
hereof. All contracts which Seller may enter into which relate to the sale or
transfer of the Seller's Interest after the date hereof shall specifically state
that they are subject and subordinate to the rights of Purchaser hereunder. In
the event that Purchaser does not exercise the Option on the terms contained
herein and a sale or transfer of the Seller's Interest by Seller to a Third
Party is consummated, Seller shall pay to Purchaser on the date upon which such
sale or transfer is consummated, a sum equal to (a) the gross sales price for
the Seller's Interest (including normal and customary closing adjustments) minus
(b)(i) Seller's Interest, (ii) all Federal income tax payable by the partners of
Seller which results from the sale of the Property and (iii) other normal and
customary costs attributable to the sale of the Property, including, without
limitation, transfer taxes, brokerage commissions, reasonable legal fees and
reasonable accounting fees (the "NET AFTER TAX PROFIT"). Upon the payment of
Seller's Net After Tax Profit to Purchaser, this Agreement shall be terminated
and of no further force and effect and neither party shall have any further
rights or liabilities hereunder.
3. In the event that Seller or a partnership, corporation limited
liability company, joint venture or other entity in which Seller owns a legal or
beneficial interest acquires the Property and at such time Purchaser has not
exercised the Option, at any
2
time prior to the expiration of the Option Period Seller shall, at the
request of Purchaser, enter into an option agreement to sell Seller's
interest in the Property to Purchaser for a purchase price equal to Seller's
Investment which shall be in form and substance reasonably acceptable to
Purchaser and Seller and on such other terms as are commercially reasonable
for transactions of such type.
4. Seller represents and warrants that (a) it is the sole owner of, and
has good and marketable title to, the Seller's Interest, (b) Seller has not
granted an option or right of first refusal to purchase the Seller's Interest to
any party other than Purchaser and (c) Seller is not a "foreign person" within
the meaning of Section 1445 of the Internal Revenue Code, as amended, or any
regulation promulgated thereunder.
5. Seller covenants that (a) it will not modify the Purchase Agreement or
enter into any agreement with respect to the Property which in any way would
have a material adverse effect upon the rights of Purchaser hereunder without
Purchaser's prior written consent, which consent may be withheld or granted in
Purchaser's sole discretion and (b) that it will not purchase the Property or
give a Purchaser's Closing Notice (as defined in the Agreement of Sale) without
first giving Purchaser 15 days prior written notice and the opportunity to
exercise the Option.
6. 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 the
transaction contemplated by this Agreement. 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 paragraph.
The representations and obligations under this paragraph shall survive the
closing of the transactions contemplated in this Agreement (the "CLOSING") or,
if the Closing does not occur, the termination of this Agreement.
7. 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 with a copy in either case to ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Notices shall be deemed given one day after posting, if given pursuant to (a)
above or upon delivery, if given pursuant to (b) above.
8. Time shall be of the essence with regard to all notices given
hereunder.
3
9. 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.
10. 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.
11. 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.
12. This Agreement may not be assigned, transferred or conveyed by
Purchaser to any person(s) or entity without the prior written consent of
Seller.
13. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs or successors and permitted assigns.
14. Exercise by Purchaser of the Option shall be subject to the approval
of a majority of the Independent Directors. As used herein "Independent
Directors" shall mean the directors of ▇▇ ▇▇▇▇▇ Realty Corp. (the "COMPANY") who
are neither officers of the Company nor affiliated with Seller.
15. 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.
16. 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
4
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties hereto
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.
17. 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.
18. The parties hereto each agree to do such other and further acts and
things, and to execute and deliver such instruments and documents (not creating
any obligations additional to those otherwise imposed by this Agreement) as
either may reasonably request from time to time, whether at, before or after the
Closing, to confirm or effectuate the provisions of this Agreement.
* * * *
5
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement the
day and year first above written.
GREEN 110E42 REALTY LLC, Seller
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Manager
▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P.,
Purchaser
By: ▇▇ ▇▇▇▇▇ Realty Corp.,
its general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
6
Exhibit B
ASSIGNMENT AND ASSUMPTION OF CONTRACT
Agreement made as of this ___ day of ____________, by and between Green
110E42 Realty LLC, a New York limited liability company having an address at
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("ASSIGNOR") and ▇▇ ▇▇▇▇▇ Operating
Partnership, L.P., a Delaware limited partnership having an address at ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("ASSIGNEE").
RECITALS
Assignor is the contract vendee under that certain agreement of sale
between Assignor, as purchaser, and ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates Limited
Partnership, as seller, dated as of August ___, 1997, covering the property and
interests more particularly therein (the "CONTRACT").
Pursuant to the Option to Purchase dated as of August ___, 1997 (the
"OPTION"), Assignor agreed, INTER ALIA, to assign the Contract, to Assignee and
Assignee agreed to assume Assignor's obligations thereunder and with respect
thereof.
AGREEMENTS
In consideration of the promises and conditions contained herein, and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns to Assignee, without warranty, representation
or recourse, all of its right, title and interest in, to and under the Contract
and to the ▇▇▇▇▇▇▇ Money Deposit (as defined therein).
2. Assignee hereby assumes the Contract and all of Assignor's obligations
under the Contract and Assignee agrees to indemnify Assignor against and hold
Assignor harmless from any and all costs, damages, liabilities and expenses,
including, without limitation, reasonable attorney's fees, imposed upon or
incurred by Assignor by reason of Assignee's failure to perform the purchaser's
obligations under the Contract arising from and after the date of this
Agreement.
3. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, their successors in interest and assigns.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
ASSIGNOR:
GREEN 110E42 REALTY LLC, Seller
By:__________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Member
ASSIGNEE:
▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P.,
Purchaser
By: ▇▇ ▇▇▇▇▇ Realty Corp.,
its general partner
By:__________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
