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Section 1: 8-K (8-K)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 


 

FORM 8-K

 


 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of report (Date of earliest event reported): March 7, 2019 (March 4, 2019)

 


 

MACK-CALI REALTY CORPORATION

(Exact Name of Registrant as Specified in Charter)

 

Maryland

 

1-13274

 

22-3305147

(State or Other Jurisdiction
of Incorporation)

 

(Commission File Number)

 

(IRS Employer
Identification No.)

 

Harborside 3, 210 Hudson St., Ste. 400
Jersey City, New Jersey 07311

 

(Address of Principal Executive Offices) (Zip Code)

 

 

(732) 590-1010

(Registrant’s telephone number, including area code)

 

MACK-CALI REALTY, L.P.

(Exact Name of Registrant as Specified in Charter)

 

Delaware

 

333-57103

 

22-3315804

(State or Other Jurisdiction
of Incorporation)

 

(Commission File Number)

 

(IRS Employer
Identification No.)

 

Harborside 3, 210 Hudson St., Ste. 400

Jersey City, New Jersey 07311

(Address of Principal Executive Offices) (Zip Code)

 

(732) 590-1010

(Registrant’s telephone number, including area code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o                          Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o                          Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o                          Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o                          Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).    Emerging growth company o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  o

 

 

 


 

Item 1.01  Entry into a Material Definitive Agreement.

 

As previously disclosed, on February 21, 2019, certain wholly-owned subsidiaries of Mack-Cali Realty, L.P. (the “Company”), the operating partnership through which Mack-Cali Realty Corporation (the “General Partner”) conducts substantially all of its operations, entered into two (2) agreements of purchase and sale (collectively, the “Agreements”) with RMC Acquisition Entity, LLC (the “Purchaser”), a Delaware limited liability company affiliated with the Robert Martin Company, LLC (“RMC”) for the sale of all of the Company’s right, title and interest in and to certain fee and leasehold interests in a portfolio of 56 office/flex buildings and associated real property located in Westchester County, New York and Stamford, Connecticut aggregating approximately 3.1 million square feet of office/flex space, including certain space leases, service contracts, personal property and motor vehicles connected with the aforementioned properties (collectively, the “Flex Portfolio”) for an aggregate purchase price of $487,500,000 (the “Purchase Price”), including earnest money of $5,000,000. The material terms of the Agreements were disclosed in the Current Report on Form 8-K of the General Partner and the Company filed with the Securities and Exchange Commission on February 27, 2019 and incorporated herein by reference.

 

On March 4, 2019, the wholly-owned subsidiaries of the Company and the Purchasers entered into amended and restated Agreements (the “Amended and Restated Agreements”) that provide for the expiration of the due diligence period on March 4, 2019, subject to certain environmental evaluation matters at certain properties, and other technical amendments to the Agreements. In connection with the entry into the Amended and Restated Agreements, on March 4, 2019, the Company also entered into an OP Unit Redemption Agreement  (the “Redemption Agreement”) with certain affiliates of the Purchasers (the “Redeeming Unit Holders”) who are the holders of common units of limited partnership interests in the Company (the “Common Units”). Pursuant to the Redemption Agreement, the Redeeming Unit Holders may tender to the Company approximately $6.6 million of Common Units in partial payment of the Purchase Price, such Common Units to be valued based upon the average closing price per share of the common stock, $0.01 par value per share, of the General Partner (the “Common Stock”), as reported on the New York Stock Exchange for the period of five (5) consecutive trading days through and including the date which is three (3) business days prior to the closing of the sale of the Flex Portfolio.

 

The closing of the sale of the Flex Portfolio remains subject to normal and customary undertakings, covenants, obligations and closing conditions. The Company anticipates completing the sale of the Flex Portfolio during the first half of 2019.

 

Copies of the Amended and Restated Agreements and the Redemption Agreement are filed herewith as Exhibits 10.1, 10.2 and 10.3, respectively, and are incorporated herein by reference.

 

Cautionary Statements

 

This Current Report on Form 8-K, including the exhibits filed herewith, contains “forward-looking statements” within the meaning of Section 21E of the Exchange Act. Such

 

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forward-looking statements relate to, without limitation, our future economic performance, plans and objectives for future operations and projections of revenue and other financial items. Forward-looking statements can be identified by the use of words such as “may,” “will,” “plan,” “potential,” “projected,” “should,” “expect,” “anticipate,” “estimate,” “target,” “continue” or comparable terminology. Forward-looking statements are inherently subject to certain risks, trends and uncertainties, many of which the Company cannot predict with accuracy and some of which the Company might not even anticipate. Although the Company believes that the expectations reflected in such forward-looking statements are based upon reasonable assumptions at the time made, the Company can give no assurance that such expectations will be achieved. Future events and actual results, financial and otherwise, may differ materially from the results discussed in the forward-looking statements as a result of various factors, including those listed in the Company’s Annual Reports on Form 10-K, as may be supplemented or amended in the Company’s Quarterly Reports on Form 10-Q. Readers are cautioned not to place undue reliance on these forward-looking statements. Unless required by U.S. federal securities laws, the Company does not intend to update any of the forward-looking statements to reflect circumstances or events that occur after the statements are made or to conform the statements to actual results. The information contained in this Current Report on Form 8-K, including the exhibits filed herewith, should be viewed in conjunction with the consolidated financial statements and notes thereto appearing in the Company’s Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q.

 

Item 9.01                                           Financial Statements and Exhibits

 

(d)  Exhibits

 

Exhibit Number

 

Exhibit Title

 

 

 

10.1

 

Amended and Restate Agreement of Sale and Purchase, dated March 4, 2019, by and between Mack-Cali CW Realty Associates L.L.C., Cross Westchester Realty Associates L.L.C., Clearbrook Road Associates L.L.C., So. Westchester Realty Associates L.L.C., Mack-Cali So. West Realty Associates L.L.C., 225 Corporate Realty L.L.C., 3 Odell Realty L.L.C. Mid-Westchester Realty Associates L.L.C., Mack-Cali Mid-West Realty Associates L.L.C., Skyline Realty L.L.C., 12 Skyline Associates L.L.C., 5/6 Skyline Realty L.L.C. and Talleyrand Realty Associates L.L.C., collectively, as seller, and RMC Acquisition Entity, LLC, as purchaser.

 

 

 

10.2

 

Amended and Restated Agreement of Sale and Purchase, dated March 4, 2019, by and between West Avenue Realty Associates L.L.C., as Seller, and RMC Acquisition Entity, LLC, as purchaser.

 

 

 

10.3

 

OP Unit Redemption Agreement, dated March 4, 2019, by and among Mack-Cali Realty, L.P., Mack-Cali CW Realty Associates L.L.C., Mack-Cali So. West Realty Associates L.L.C., Brad W. Berger Revocable Trust, Greg Berger, Robert F. Weinberg 2013 Trust and RFW Management Inc.

 

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EXHIBIT INDEX

 

Exhibit Number

 

Exhibit Title

 

 

 

10.1

 

Amended and Restate Agreement of Sale and Purchase, dated March 4, 2019, by and between Mack-Cali CW Realty Associates L.L.C., Cross Westchester Realty Associates L.L.C., Clearbrook Road Associates L.L.C., So. Westchester Realty Associates L.L.C., Mack-Cali So. West Realty Associates L.L.C., 225 Corporate Realty L.L.C., 3 Odell Realty L.L.C. Mid-Westchester Realty Associates L.L.C., Mack-Cali Mid-West Realty Associates L.L.C., Skyline Realty L.L.C., 12 Skyline Associates L.L.C., 5/6 Skyline Realty L.L.C. and Talleyrand Realty Associates L.L.C., collectively, as seller, and RMC Acquisition Entity, LLC, as purchaser.

 

 

 

10.2

 

Amended and Restated Agreement of Sale and Purchase, dated March 4, 2019, by and between West Avenue Realty Associates L.L.C., as Seller, and RMC Acquisition Entity, LLC, as purchaser.

 

 

 

10.3

 

OP Unit Redemption Agreement, dated March 4, 2019, by and among Mack-Cali Realty, L.P., Mack-Cali CW Realty Associates L.L.C., Mack-Cali So. West Realty Associates L.L.C., Brad W. Berger Revocable Trust, Greg Berger, Robert F. Weinberg 2013 Trust and RFW Management Inc.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, each registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

MACK-CALI REALTY CORPORATION

 

 

Dated: March 7, 2019

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner

 

 

General Counsel and Secretary

 

 

 

MACK-CALI REALTY, L.P.

 

 

 

By:

Mack-Cali Realty Corporation,

 

 

its general partner

 

 

 

 

Dated: March 7, 2019

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner

 

 

General Counsel and Secretary

 

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Section 2: EX-10.1 (EX-10.1)

EXHIBIT 10.1

 

AMENDED AND RESTATED AGREEMENT OF SALE AND PURCHASE

 

THIS AMENDED AND RESTATED AGREEMENT OF SALE AND PURCHASE (“Agreement”) made this 4th day of March, 2019 by and between MACK-CALI CW REALTY ASSOCIATES L.L.C., converted from Cali CW Realty Associates L.P. (“CW”); CROSS WESTCHESTER REALTY ASSOCIATES L.L.C., converted from Cross Westchester Realty Associates L.P. (“Cross Westchester”); CLEARBROOK ROAD ASSOCIATES L.L.C., f/k/a Clearbrook Realty Associates L.L.C. (“Clearbrook”); SO. WESTCHESTER REALTY ASSOCIATES L.L.C., converted from So. Westchester Realty Associates L.P. (“So. Westchester”); MACK-CALI SO. WEST REALTY ASSOCIATES L.L.C., converted from Cali So. West Realty Associates L.P. (“So. West”); 225 CORPORATE REALTY L.L.C., f/k/a 250 Corporate Realty L.L.C. (“Corporate”); 3 ODELL REALTY L.L.C. (“Odell”); MID-WESTCHESTER REALTY ASSOCIATES L.L.C., converted from Mid-Westchester Realty Associates L.P. (“Mid-Westchester”); MACK-CALI MID-WEST REALTY ASSOCIATES L.L.C., converted from Cali Mid-West Realty Associates L.P. (“Mid-West”); SKYLINE REALTY L.L.C. (“Skyline”); 12 SKYLINE ASSOCIATES L.L.C. (“12 Skyline”); 5/6 SKYLINE REALTY L.L.C. (“5/6 Skyline”); and TALLEYRAND REALTY ASSOCIATES L.L.C., converted from Talleyrand Realty Associates L.P. (“Talleyrand”), each a limited liability company organized under the laws of the State of New York and each having an address c/o Mack-Cali Realty Corporation, Harborside 3, 210 Hudson Street, Suite 400, Jersey City, NJ 07311 (CW, Cross Westchester, Clearbrook, So. Westchester, So. West, Corporate, Odell, Mid-Westchester, Mid- West, Skyline, 12 Skyline, 5/6 Skyline and Talleyrand are sometimes hereinafter individually referred to as a “Seller” and collectively referred to as Seller) and RMC ACQUISITION ENTITY, LLC, a Delaware limited liability company having an address c/o Robert Martin Company, 100 Clearbrook Road, Elmsford, NY 10523 (“Purchaser”).

 

WHEREAS, Seller and Purchaser are parties to an Agreement of Sale and Purchase, dated February 21, 2019, as amended by a letter agreement, dated February 26, 2019, extending the evaluation period thereunder, and as amended by a letter agreement, dated March 1, 2019, extending the evaluation period thereunder (collectively, the “Existing Agreement”); and

 

WHEREAS, Seller and Purchaser desire to enter into this Agreement to amend and restate in its entirety the Existing Agreement.

 

In consideration of the mutual promises, covenants, and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows:

 

ARTICLE I

DEFINITIONS

 

Section 1.1                                   Definitions.  For purposes of this Agreement, the following capitalized terms have the meanings set forth in this Section 1.1:

 

1, 3 and 5 Westchester Plaza Real Property means that certain parcel of real property owned by CW located in the Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-1, together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights. Buildings known as “1 Westchester Plaza, 3 Westchester Plaza and 5 Westchester Plaza (referred to as 1, 3 and 5 Westchester Plaza) are located on the 1, 3 and 5 Westchester Plaza Real Property.

 

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2, 4 and 6 Westchester Plaza Real Property means that certain parcel of real property owned by CW located in the Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-2, together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights. Buildings known as “2 Westchester Plaza, 4 Westchester Plaza and 6 Westchester Plaza (referred to as 2, 4 and 6 Westchester Plaza) are located on the 2, 4 and 6 Westchester Plaza Real Property.

 

7 Westchester Plaza Real Property means that certain parcel of real property l owned by CW located at 7 Westchester Plaza, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-7 (referred to as 7 Westchester Plaza), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

8 Westchester Plaza Real Property means that certain parcel of real property owned by CW located at 8 Westchester Plaza, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-8 (referred to as 8 Westchester Plaza), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

50 Executive Boulevard Real Property means that certain parcel of real property owned by CW located at 50 Executive Boulevard, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-9 (referred to as 50 Executive Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

77 Executive Boulevard Real Property means that certain parcel of real property owned by CW located at 77 Executive Boulevard, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-10 (referred to as 77 Executive Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

101 Executive Boulevard Real Property means that certain parcel of real property owned by CW located at 101 Executive Boulevard, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-12 (referred to as 101 Executive Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

101 Executive Boulevard Condominium Unitsmeans collectively the condominium units owned by CW designated as Unit A and Unit B (collectively, with their respective appurtenant common interests the “Condominium Units”), as described in the Condominium Declaration and as shown on the Floor Plans of the Condominium filed simultaneously with the Condominium Declaration in the County Clerk’s Office as Map No. 29122.

 

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300 Executive Boulevard Real Property means that certain parcel of real property owned by CW located at 300 Executive Boulevard, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-13 (referred to as 300 Executive Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

350 Executive Boulevard Real Property means that certain parcel of real property owned by Cross Westchester located at 350 Executive Boulevard, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-14 (referred to as 350 Executive Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

399 Executive Boulevard Real Property means that certain parcel of real property owned by CW located at 399 Executive Boulevard, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-15 (referred to as 399 Executive Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

400 and 500 Executive Boulevard Real Property means that certain parcel of real property owned by CW located in the Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-16, together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights. Buildings known as “400 Executive Boulevard” and 500 Executive Boulevard (referred to as 400 and 500 Executive Boulevard) are located on the 400 and 500 Executive Boulevard Real Property.

 

525 Executive Boulevard Real Property means that certain parcel of real property owned by Cross Westchester located at 525 Executive Boulevard, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-18 (referred to as 525 Executive Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

11 and 175 Clearbrook Road Real Property means that certain parcel of real property owned by CW located in the Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-19, together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights. Buildings known as 11 Clearbrook Road and 175 Clearbrook Road (referred to as 11 and 175 Clearbrook Road) are located on the 11 and 175 Clearbrook Road Real Property.

 

75 and 125 Clearbrook Road Real Property means that certain parcel of real property owned by Cross Westchester, together with all of Seller’s beneficial and equitable rights and interests owned by Clearbrook which shall quitclaim such rights and interests under the Deed, located in the Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions

 

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attached hereto and made a part hereof as Exhibit A-20, together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights. Buildings known as 75 Clearbrook Road and 125 Clearbrook Road (referred to as 75 and 125 Clearbrook Road) are located on the 75 and 125 Clearbrook Road Real Property.

 

100 Clearbrook Road Real Property means that certain parcel of real property owned by CW located at 100 Clearbrook Road, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-21 (referred to as 100 Clearbrook Road), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

150 Clearbrook Road Real Property means that certain parcel of real property owned by CW located at 150 Clearbrook Road, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-23 (referred to as 150 Clearbrook Road), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

200 Clearbrook Road Real Property means that certain parcel of real property owned by CW located at 200 Clearbrook Road, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-25 (referred to as 200 Clearbrook Road), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

250 Clearbrook Road Real Property means that certain parcel of real property owned by CW located at 250 Clearbrook Road, Village of Elmsford, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-26 (referred to as 250 Clearbrook Road), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

1 Odell Plaza Real Property means that certain parcel of real property owned by So. Westchester located at 1 Odell Plaza, City of Yonkers, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-27 (referred to as 1 Odell Plaza), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

3 Odell Plaza Real Property means that certain parcel of real property owned by Odell located at 3 Odell Plaza, City of Yonkers, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-28 (referred to as 3 Odell Plaza), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

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5 and 7 Odell Plaza Real Property means that certain parcel of real property owned by So. Westchester located in the City of Yonkers, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-29 (referred to as 5 Odell Plaza), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights. Buildings known as 5 Odell Plaza and 7 Odell Plaza (referred to as 5 and 7 Odell Plaza) are located on the 5 and 7 Odell Plaza Real Property.

 

1 Executive Boulevard Real Property means that certain parcel of real property owned by So. West located at 1 Executive Boulevard, City of Yonkers, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-31 (referred to as 1 Executive Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

3 Executive Boulevard Real Property means that certain parcel of real property owned by So. Westchester located at 3 Executive Boulevard, City of Yonkers, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-33 (referred to as 3 Executive Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

4 Executive Plaza Real Property means that certain parcel of real property owned by So. West located at 4 Executive Plaza, City of Yonkers, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-34 (referred to as 4 Executive Plaza), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

6 Executive Plaza Real Property means that certain parcel of real property owned by So. Westchester located at 6 Executive Plaza, City of Yonkers, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-35 (referred to as 6 Executive Plaza), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

100 Corporate Boulevard Real Property means that certain parcel of real property owned by So. West located at 100 Corporate Boulevard, City of Yonkers, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-36 (referred to as 100 Corporate Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

200 Corporate Boulevard South Real Property means that certain parcel of real property owned by So. Westchester located at 200 Corporate Boulevard South, City of Yonkers, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-37 (referred to as 200 Corporate Boulevard South), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right,

 

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title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

225 Corporate Boulevard Real Property means that certain parcel of real property owned by Corporate located at 225 Corporate Boulevard, City of Yonkers, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-38 (referred to as 225 Corporate Boulevard), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

1 Skyline Drive Real Property means that certain parcel of real property owned by Mid-Westchester located at 1 Skyline Drive, Town of Mount Pleasant, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-39 (referred to as 1 Skyline Drive), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

2 and 4 Skyline Drive Real Property means that certain parcel of real property owned by Mid-Westchester located in the Town of Mount Pleasant, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-40, together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights. Buildings known as “2 Skyline Drive” and 4 Skyline Drive (referred to as 2 and 4 Skyline Drive) are located on the 2 and 4 Skyline Drive Real Property.

 

5 and 6 Skyline Drive Real Property means that certain parcel of real property owned by 5/6 Skyline located in the Town of Mount Pleasant, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-42, together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights. Buildings known as “5 Skyline Drive and 6 Skyline Drive (referred to as 5 and 6 Skyline Drive) are located on the 5 and 6 Skyline Drive Real Property.

 

7 Skyline Drive Real Property means that certain parcel of real property owned by Skyline located at 7 Skyline Drive, Town of Mount Pleasant, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-44 (referred to as 7 Skyline Drive), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

8 and 10 Skyline Drive Real Property means that certain parcel of real property owned by Mid-West located at 8 Skyline Drive, Town of Mount Pleasant, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-45, together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights. Buildings known as “8 Skyline Drive” and 10 Skyline Drive (referred to as 8 and 10 Skyline Drive) are located on the 8 and 10 Skyline Drive Real Property.

 

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11 Skyline Drive Ground Lease means that certain ground lease by and between County of Westchester and Robert Martin—Eastview North Company dated January 10, 1990, recorded in the Clerk’s Office on February 13, 1990 in Liber 9742, Page 222, as assigned to Mid-Westchester Realty Associates L.P. by Assignment and Assumption of Ground Lease dated January 31, 1997, recorded in the Clerk’s Office in Liber 11654, Page 98, and extended by the exercise of renewal options, with respect to 11 Skyline Drive, Town of Mount Pleasant, New York.

 

11 Skyline Drive Ground Leased Property means that certain parcel of real property located at 11 Skyline Drive, Town of Mount Pleasant, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-47 (referred to as 11 Skyline Drive), which is the premises demised to Mid- Westchester under the 11 Skyline Drive Ground Lease.

 

12 Skyline Drive Ground Lease means that certain ground lease by and between County of Westchester and Robert Martin—Eastview North Company dated November 18, 1998, recorded in the Clerk’s Office on March 1, 1999 in Liber 12238, Page 224, as assigned to Mack-Cali Realty, L.P. by Assignment and Assumption of Lease dated as of December 3, 1998, and subsequently assigned to 12 Skyline by Assignment and Assumption of Ground Lease dated as of March 1, 2000, and extended by the exercise of renewal options, with respect to 12 Skyline Drive, Town of Mount Pleasant, New York.

 

12 Skyline Drive Ground Leased Property means that certain parcel of real property located at 12 Skyline Drive, Town of Mount Pleasant, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-48 (referred to as 12 Skyline Drive), which is the premises demised to 12 Skyline  under the 12 Skyline Drive Ground Lease.

 

15 Skyline Drive Ground Lease means that certain ground lease by and between County of Westchester and Robert Martin—Eastview North Company dated January 10, 1990, recorded in the Clerk’s Office on February 13, 1990 in Liber 9743, Page 103, as assigned to Mid-Westchester Realty Associates L.P. by Assignment and Assumption of Lease dated as of January 31, 1997, recorded on February 13, 1997 in Liber 11657, Page 241, and extended by the exercise of renewal options, with respect to 15 Skyline Drive, Town of Mount Pleasant, New York.

 

15 Skyline Drive Ground Leased Property means that certain parcel of real property located at 15 Skyline Drive, Town of Mount Pleasant, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-49 (referred to as 15 Skyline Drive), which is the premises demised to Mid-Westchester under the 15 Skyline Drive Ground Lease.

 

17 Skyline Drive Ground Lease means that certain ground lease by and between County of Westchester and Robert Martin—Eastview North Company, dated January 10, 1990, recorded in the Clerk’s Office on February 13, 1990 in Liber 9743, Page 1, as assigned to Mid-Westchester Realty Associates L.P. by Assignment and Assumption of Ground Lease dated as of January 31, 1997, recorded on February 13, 1997 in Liber 11657, Page 274, and extended by the exercise of renewal options, with respect to 17 Skyline Drive, Town of Mount Pleasant, New York.

 

17 Skyline Drive Ground Leased Property means that certain parcel of real property located at 17 Skyline Drive, Town of Mount Pleasant, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-50 (referred to as 17 Skyline Drive), which is the premises demised to Mid- Westchester under the 17 Skyline Drive Ground Lease.

 

200 Saw Mill River Road Real Property means that certain parcel of real property owned by Mid-West located at 200 Saw Mill River Road, Town of Mount Pleasant, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-51 (referred to as 200 Saw Mill River Road), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in

 

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and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

240 White Plains Road Real Property means that certain parcel of real property owned by Talleyrand located at 240 White Plains Road, Town of Greenburgh, State of New York, as more particularly described by the legal descriptions attached hereto and made a part hereof as Exhibit A-52 (referred to as 240 White Plains Road), together with all of Seller’s right, title and interest, if any, in and to the appurtenances pertaining thereto, including but not limited to Seller’s right, title and interest in and to the adjacent streets, alleys and right-of-ways, and any easement rights, air rights, subsurface development rights and water rights.

 

Additional Earnest Money Deposit has the meaning ascribed to such term in Section 4.1.

 

Allocation” shall have the meaning ascribed to such term in Section 3.1 and as set forth on Schedule 3.1.

 

Agency Agreementmeans that certain Agency Agreement, dated October 10, 2017, among CW, Mid-Westchester, 5/6 Skylive, 12 Skyline and Mid-West, as owner, and New York Commercial Realty Group, LLC, as broker, with respect to certain of the Properties, as amended by a First Amendment to Agency Agreement, dated December 8, 2017, as amended by a Second Amendment to Agency Agreement, dated April 24, 2018, as amended by a Third Amendment to Agency Agreement, dated October 22, 2018, as cancelled by a letter, dated February 22, 2019 from MCRC to New York Commercial Realty Group, LLC.

 

Agreementhas the meaning ascribed to such term in the Preamble.

 

Apex Agreements means that certain Agreement for the management of rooftop transmitting sites dated July 6, 1998 between Mack-Cali Realty Corporation on behalf of Seller and Apex Site Management, Inc. and that certain Agreement for the management of telecommunication access sites dated December 14, 1998 between Mack-Cali Realty Corporation on behalf of Seller and Apex Site management, Inc. (as same has been amended).

 

Assignment of Service Contracts has the meaning ascribed to such term in Section 10.3(d) and shall be in the form attached hereto as Exhibit B.

 

Assignment of Lease Obligations has the meaning ascribed to such term in Section 10.3(c) and shall be in the form attached hereto as Exhibit C.

 

Assignment of Maintenance Declaration has the meaning ascribed to such term in Section 10.3(f) and shall be in the form attached hereto as Exhibit K.

 

Associationmeans individually and collectively the South-West Maintenance Association, the Mid-West Maintenance Association and the Talleyrand Maintenance Association, as applicable.

 

Association Documentsmeans individually and collectively the Mid-West Maintenance Corp. Association Documents and the South-West Maintenance Corp. Association Documents, and the Talleyrand Maintenance Association Documents, as applicable.

 

Association Estoppel Certificate means individually and collectively an estoppel certificate from the South-West Maintenance Association, and the Mid-West Maintenance Association, but not the Talleyrand Maintenance Association, as applicable, and shall be in the form attached hereto as Exhibit N.

 

Authorities means the various federal, state and local governmental and quasi-governmental bodies or agencies having jurisdiction over the Real Property and Improvements, or any portion thereof.

 

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Bill of Sale has the meaning ascribed to such term in Section 10.3(b) and shall be in the form attached hereto as Exhibit D.

 

Bring-Down Certificate” has the meaning ascribed to such term in Section 10.3(k).

 

Broker has the meaning ascribed to such term in Section 16.1.

 

Business Day means any day other than a Saturday, Sunday or a day on which national banking associations are authorized or required to close.

 

Certificate as to Foreign Status has the meaning ascribed to such term in Section 10.3(j) and shall be in the form attached as Exhibit I.

 

Certifying Person has the meaning ascribed to such term in Section 4.3(a).

 

Clerk’s Officemeans the office of the Clerk of the County of Westchester (Division of Land Records).

 

Closing means the consummation of the purchase and sale of the Property contemplated by this Agreement, as provided for in Article X.

 

Closing Date means the date on which the Closing of the transactions contemplated hereby actually occurs.

 

Closing Statement has the meaning ascribed to such term in Section 10.4(a).

 

Closing Surviving Obligations means the rights, liabilities and obligations set forth in Sections 3.1 (as to Allocation), 3.2, 5.3, 5.4, 7.5, 8.1, 8.2, 8.3, 10.4, 10.5, 10.6, 10.7, 11.1, 11.2, 12.1, 14.1, 16.1, 18.1, 18.2, 18.3, 18.4, 18.5, 18.6, 18.7, 18.9, 18.10, 18.11, 18.12, 18.13, 18.14, and any other provisions which pursuant to their terms survive the Closing hereunder.

 

Code has the meaning ascribed to such term in Section 4.3.

 

Commonwealth Title Commitment means, collectively, the new title insurance commitments prepared by Commonwealth Land Title Insurance Company for the Real Property, as made available electronically to Purchaser for its review.

 

Condominium means the condominium known as “101 Executive Boulevard Condominium”.

 

Condominium Estoppel Certificate means the Estoppel Certificate issued by the Condominium Board (hereinafter defined), or by the managing agent on behalf of the Condominium Board, and shall be in the form attached hereto as Exhibit T.

 

Condominium Board means the board of managers for the Condominium established pursuant to the Condominium Documents.Condominium Documents means, collectively, (i) that certain Declaration of Condominium for 101 Executive Boulevard Condominium, dated December 19, 2017, and recorded with the Westchester Clerk’s Office on January 8, 2018, including without limitation all exhibits and schedules attached thereto (the Condominium Declaration”), (ii) the By-Laws of the Condominium, and (iii) the rules and regulations for the Condominium established from time to time, if any, as any or all of the same may have been or may be amended and/or restated from time to time.

 

Confidentiality Agreement means that certain Confidentiality Agreement, dated November 2, 2018, between MCRC and Purchaser.

 

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Continuing Tax Protection Rights has the meaning ascribed to such term in Section 7.5(a).

 

Contribution and Exchange Agreement (RM) means, collectively, that Contribution and Exchange Agreement, dated January 24, 1997, between Robert Martin Company, LLC, Robert Martin-Eastview North Company, L.P., Mack-Cali Realty, L.P. (f/k/a Cali Realty, L.P.) and Mack-Cali Realty Corporation (f/k/a Cali Realty Corporation), as amended by that certain Consent and Waiver Agreement, dated September    , 1997, and that certain Second Amendment to Contribution and Exchange Agreement, dated June 27, 2000, and that certain Letter Agreement, dated December 31, 2018, regarding the Elmsford Distribution Center.

 

Cross Westchester Executive Parkmeans the executive park commonly known as the Cross Westchester Executive Park, in the Town of Greenburgh, State of New York and consisting of the Property owned by Seller subject to this Agreement, as set forth on Schedule 1.1, as well as property owned by other parties not affiliated with Seller.

 

Data Room means the electronic web-based document depository established and maintained by the Broker in connection with the transactions contemplated by this Agreement, a link to which has been provided to Purchaser.

 

Deed has the meaning ascribed to such term in Section 10.3(a) and shall be in the form attached hereto as Exhibit L.

 

Delinquent Rental has the meaning ascribed to such term in Section 10.4(b).

 

Documents has the meaning ascribed to such term in Section 5.2(a).

 

Earnest Money Deposit has the meaning ascribed to such term in Section 4.1.

 

EAT has the meaning ascribed to such term in Section 10.7.

 

Effective Date means February 21, 2019, the Effective Date of the Existing Agreement.

 

Employee Notice has the meaning ascribed to such term in Section 9.2(g).

 

Environmental Due Diligence Agreement means the Environmental Due Diligence Agreement, dated March 4, 2019, between CW, Cross Westchester, So. Westchester, So. West, Mid-Westchester, Mid-West, Skyline and 5/6 Skyline, and Purchaser, with respect to the Environmental Testing.

 

Environmental Consultant has the meaning ascribed to such term in Section 5.1.

 

Environmental Evaluation Period has the meaning ascribed to such term in Section 5.1.

 

Environmental Laws means each and every federal, state, county and municipal statute, ordinance, rule, regulation, code, order, requirement, directive, binding written interpretation and binding written policy pertaining to Hazardous Substances issued by any Authorities and in effect as of the date of this Agreement with respect to or which otherwise pertains to or affects the Real Property or the Improvements, or any portion thereof, the use, ownership, occupancy or operation of the Real Property or the Improvements, or any portion thereof, or Purchaser, and as the same have been amended, modified or supplemented from time to time prior to the Effective Date, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Hazardous Substances Transportation Act (49 U.S.C. § 1802 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), as amended by the Hazardous and Solid Wastes Amendments of 1984, the Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. § 300f et seq.), the Clean Water Act (33 U.S.C. § 1321 et seq.), the Clean Air Act (42 U.S.C. § 7401 et

 

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seq.), the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. § 11001 et seq.), the Radon Gas and Indoor Air Quality Research Act of 1986 (42 U.S.C. § 7401 et seq.), the National Environmental Policy Act (42 U.S.C. § 4321 et seq.), the Superfund Amendment Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.), the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.) (collectively, the “Environmental Statutes”), and any and all rules and regulations which have become effective prior to the date of this Agreement under any and all of the Environmental Statutes.

 

Environmental Reports has the meaning ascribed to such term in Section 5.1.

 

Environmental Standards means (i) for soil, the Restricted Use Soil Cleanup Objectives (using the commercial standard for protection of public health), as set forth in set forth in Table 375-6.8(b) of 6 NYCRR Part 375, and (ii) for groundwater, Water Quality Standards for Water Class GA, as set forth in Table 1 of 6 NYCRR Part 703.5.

 

Environmental Testing has the meaning ascribed to such term in Section 5.1.

 

Escrow Agent means First American Title Insurance Company National Commercial Services, having an address at 666 Third Avenue, 5th Floor, New York, New York 10017, Attention:  Anthony Moretta.

 

Evaluation Period has the meaning ascribed to such term in Section 5.1.

 

Executive Park” or “Parkmeans individually and collectively the South Westchester Executive Park, the Cross Westchester Executive Park and the Mid-Westchester Executive Park,  as applicable.

 

Existing Agreementhas the meaning ascribed to such term in the Preamble.

 

Existing Survey means Seller’s existing surveys of the Real Property, as made available electronically to Purchaser for its review.

 

Fee Propertymeans individually and collectively, the fee property owned by Seller as set forth on Schedule 1.1.

 

Governmental Regulations means all statutes, ordinances, rules and regulations of the Authorities applicable to Seller or the use or operation of the Real Property or the Improvements or any portion thereof.

 

Ground Lease Estoppel” has the meaning ascribed to such term in Section 7.3 and is attached as Exhibit H-1.

 

Ground Leasemeans individually and collectively the 11 Skyline Drive Ground Lease, the 12 Skyline Drive Ground Lease, the 15 Skyline Drive Ground Lease and the 17 Skyline Drive Ground Lease.

 

Ground Lease Assignmenthas the meaning ascribed to such term in Section 10.3(e) and is attached as Exhibit E.

 

Ground Leased Propertymeans individually and collectively, the 11 Skyline Drive Ground Leased Property, the 12 Skyline Drive Ground Leased Property, the 15 Skyline Drive Ground Leased Property and the 17 Skyline Drive Ground Leased Property.

 

Hazardous Substances means (a) asbestos, radon gas and urea formaldehyde foam insulation, (b) any solid, liquid, gaseous or thermal contaminant, including smoke vapor, soot, fumes, acids, alkalis,

 

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chemicals, petroleum products or byproducts, polychlorinated biphenyls, phosphates, lead or other heavy metals and chlorine, (c) any solid or liquid waste (including, without limitation, hazardous waste), hazardous air pollutant, hazardous substance, hazardous chemical substance and mixture, toxic substance, pollutant, pollution, regulated substance and contaminant, and (d) any other chemical, material or substance, the use or presence of which, or exposure to the use or presence of which, is prohibited, limited or regulated by any Environmental Laws.

 

HIG” has the meaning ascribed to such term in Section 4.4.

 

HIG Percentage” has the meaning ascribed to such term in Section 4.4.

 

HIG Wire Instructions” are set forth on Exhibit O.

 

Identified Terrorist has the meaning ascribed to such term in Section 8.1(o).

 

Improvements means all buildings, structures, fixtures, parking areas and other improvements located on the Real Property.

 

Initial Earnest Money Deposit has the meaning ascribed to such term in Section 4.1.

 

Investigations has the meaning ascribed to such term in Section 5.1.

 

Lease Schedule has the meaning ascribed to such term in Section 5.2(a) and is attached as Exhibit G.

 

Leasesmeans all of the leases, licenses, occupancy agreements and other agreements with Tenants with respect to the use and occupancy of the Real Property, together with all renewals and modifications thereof, if any, all guaranties thereof, if any, and any new leases, lease amendments, and lease guaranties entered into after the Effective Date to the extent permitted by Section 7.1.

 

Leasing Commission Agreementsmeans all leasing commission agreements currently affecting the Property and any leasing commission agreements entered into after the Effective Date in connection with new leases and lease amendments permitted by Section 7.1.  The Agency Agreement is not a Leasing Commission Agreement.

 

Letters of Credit has the meaning ascribed to such term in Section 10.4(a)(ii).

 

Licensee Parties has the meaning ascribed to such term in Section 5.1.

 

Licenses and Permits means, collectively, any and all licenses, permits, certificates of occupancy, approvals, dedications, subdivision maps and entitlements now or hereafter issued, approved or granted by the Authorities in connection with the Real Property and the Improvements, together with all renewals and modifications thereof.

 

LKE Property means those Properties designated as “LKE Property” on Schedule 3.1.

 

LLCs has the meaning ascribed to such term in Section 10.7.

 

Mack Contribution and Exchange Agreement means that certain Contribution and Exchange Agreement, dated September 18, 1997, between the MACK (as defined therein), Cali Realty Corporation and Cali Realty, L.P., as amended by that certain First Amendment to the Contribution and Exchange Agreement, dated December 11, 1997.

 

Major Taking has the meaning ascribed to such term in Section 11.2.

 

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Major Tenantmeans each Tenant listed as a “Major Tenant” on Exhibit P hereto.

 

Material Damage Event has the meaning ascribed to such term in Section 11.1.

 

MCRC means Mack-Cali Realty Corporation, a Maryland Corporation and the sole general partner of Mack-Cali Realty, L.P., a Delaware limited partnership.

 

MCRLP means Mack-Cali Realty, L.P., a Delaware limited partnership.

 

Mid-West Maintenance Associationmeans the Association known as the Mid-West Maintenance Corp. Association (formerly known as the Mid-Westchester Executive Park Maintenance Association or MWEP Maintenance Association).

 

Mid-West Maintenance Corp. Association Documents means collectively (i) that certain Mid-Westchester Executive Park Maintenance Association Declaration made as of July 30, 1981 recorded on August 5, 1981 in the Clerk’s Office in Liber 7716 of conveyances, at Page 104, as amended by First Amendment dated as of August 20, 1981 and recorded in the Clerk’s Office on August 21, 1981 in Liber 7720 of conveyances at Page 558,  Second Amendment dated as of January 10, 1990 and recorded in the Clerk’s Office on February 13, 1990 in Liber 9742 of conveyances at Page 324, Third Amendment dated as of February 9, 1990 and recorded in the Clerk’s Office on February 13, 1990 in Liber 9742 of conveyances at Page 332 and Fourth Amendment  made as of January 1, 2013, recorded in the Clerk’s Office on March 27, 2013, Control Number 530093582 (collectively, as supplemented and amended, the “Mid-West Maintenance Declaration”), (ii) the By-Laws of the Mid-West Maintenance Association, and (iii) the rules and regulations for the Mid-West Maintenance Association established from time to time, if any, as any or all of the same may have been or may be amended and/or restated from time to time.

 

Mid-Westchester Executive Park” means the executive park commonly known as the Mid-Westchester Executive Park, in the Town of Mount Pleasant, State of New York and consisting of the Property owned by Seller subject to this Agreement and subject to the Mid-West Maintenance Corp. Association Documents, as set forth on Schedule 1.1, as well as property owned by other parties not affiliated with Seller.

 

Motor Vehiclesmeans those motor vehicles identified on Exhibit D-1 hereto.

 

New Leasing Costshas the meaning ascribed to such term in Section 10.4(e).

 

New Objection Date has the meaning ascribed to such term in Section 6.2(b).

 

New Title Objection has the meaning ascribed to such term in Section 6.2(b).

 

Notice to Proceed” has the meaning ascribed to such term in Section 5.3(c).

 

OP Unit Redemption Agreement means the OP Unit Redemption Agreement, dated of even date herewith, between MCRLP, CW, So. West and the ROFO (RM) Party, pursuant to which the ROFO (RM) Party has elected to redeem certain limited partnership interests in the form of operating partner interests in MCRLP in exchange for the OP Unit Redemption Property, as same may be amended and/or restated in accordance with its terms.

 

OP Unit Redemption Property means (i) that certain parcel of real property located at 85 Executive Boulevard, Village of Elmsford, Town of Greenburgh, State of New York and (ii) that certain parcel of real property located at 2 Executive Plaza, City of Yonkers, State of New York, each as more particularly described in the OP Unit Redemption Agreement, as the same may be substituted with the OP Unit Substituted Redemption Property.

 

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OP Unit Substituted Redemption Property has the meaning ascribed to such term in Section 3.1(c).

 

Operating Expenseshas the meaning ascribed to such term in Section 10.4(c).

 

Other PSAsmeans, collectively, (i) that certain Amended and Restated Agreement of Sale and Purchase, dated as of even date hereof, between Seller’s affiliate, West Avenue Realty Associates L.L.C., as seller, and Purchaser, as purchaser, with respect to those certain real properties located in the Stamford Executive Park, known as 419 West Avenue, 500 West Avenue, 550 West Avenue, 600 West Avenue and 650 West Avenue, Stamford, Connecticut  (as same may be amended and/or restated from time to time in accordance with its terms), and (ii) the OP Unit Redemption Agreement.

 

Permitted Assignee has the meaning ascribed to such term in Section 15.1.

 

Permitted Exceptions has the meaning ascribed to such term in Section 6.2(a).

 

Permitted Outside Parties has the meaning ascribed to such term in Section 5.2(b).

 

Personal Property means all of Seller’s right, title and interest in and to all equipment, appliances, tools, supplies, machinery, artwork, furnishings and other tangible personal property attached to, appurtenant to, located in and used in connection with the ownership or operation of the Improvements and situated at the Real Property at the time of Closing, specifically including, not by way of limitation, all excess materials and supplies and other “attic stock” in connection with the maintenance and operation of the Improvements and other equipment, and all personal property owned by Seller or any Seller Affiliate at the 100 Clearbrook Road offices of Seller’s Affiliate, but specifically excluding all personal property leased by Seller or owned by Tenants or others not affiliated with Seller.

 

Preliminary Closing Statement has the meaning ascribed to such term in Section 10.4(a).

 

Property has the meaning ascribed to such term in Section 2.1.

 

Proration Items has the meaning ascribed to such term in Section 10.4(a).

 

Proration Time has the meaning ascribed to such term in Section 10.4(a).

 

Protected Information has the meaning ascribed to such term in Section 5.2(a).

 

Purchase Price has the meaning ascribed to such term in Section 3.1.

 

Purchaser’s Affiliates means any (i) direct or indirect shareholder, partner, member, manager or owner of Purchaser; (ii) entity in which Purchaser or any direct or indirect shareholder, partner, member, manager or owner of Purchaser has an equity interest equal to or greater than ten percent (10%); (iii) entity that, directly or indirectly, controls, is controlled by or is under common control with Purchaser and (iv) the successors and assigns of any or all of the foregoing.

 

Purchaser’s Transaction Costs” means up to $500,000.00 of the reasonable, out-of-pocket costs and expenses incurred by Purchaser, any Permitted Assignee, Purchaser’s Affiliates and/or HIG and its affiliates in connection with this Agreement and the transactions contemplated by this Agreement, including, without limitation, attorneys’ fees, due diligence expenses, and financing related fees and expenses, all of which must be evidenced by invoices or other documentation reflecting the amounts actually incurred.  Notwithstanding anything to the contrary in this Agreement or the Other PSAs, the $500,000.00 of such costs and expenses set forth in this definition is an aggregate amount to be applied with respect to Purchaser, any Permitted Assignee, Purchaser’s Affiliates and HIG and its affiliates under

 

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this Agreement and under the Other PSAs and may be reached solely under this Agreement or the Other PSAs, or partially under this Agreement and either of the Other PSAs.

 

QI” has the meaning ascribed to such term in Section 10.7.

 

Real Property means individually and collectively the Fee Property and the Ground Leased Property, as applicable.

 

Rental has the meaning ascribed to such term in Section 10.4(b), and same are “Delinquent” in accordance with the meaning ascribed to such term in Section 10.4(b).

 

Required Percentage has the meaning ascribed to such term in Section 7.2.

 

Right of Access and Confidentiality Agreement means that certain Right of Access and Confidentiality Agreement, dated December 3, 2018, between Purchaser and Seller.

 

RMC means the Robert Martin Company, LLC.

 

ROFO (Mack) Affidavit has the meaning ascribed to such term in Section 7.5(b) and shall be in the form attached hereto as Exhibit Q.

 

ROFO (Mack) Notice has the meaning ascribed to such term in Section 7.5(b).

 

ROFO (Mack) Party has the meaning ascribed to such term in Section 7.5(b).

 

ROFO (Mack) Rights has the meaning ascribed to such term in Section 7.5(b).

 

ROFO (RM) Affidavit has the meaning ascribed to such term in Section 7.5(a) and shall be in the form attached hereto as Exhibit R.

 

ROFO (RM) Exception Condition has the meaning ascribed to such term in Section 7.5(a).

 

ROFO (RM) Party has the meaning ascribed to such term in Section 7.5(a).

 

ROFO (RM) Rights has the meaning ascribed to such term in Section 7.5(a).

 

Scheduled Closing Date has the meaning ascribed to such term in Section 10.1.

 

Second Amendment (RM) has the meaning ascribed to such term in Section 7.5(a).

 

Section 1031 Exchange has the meaning ascribed to such term in Section 10.7.

 

Security Deposits means all security deposits (in the form of cash and/or a letter of credit) held by Seller, as landlord (together with any interest which has accrued thereon, but only to the extent such interest has accrued for the account of the Tenant).

 

Seller’s Affiliates means any past, present or future: (i) shareholder, partner, member, manager or owner of Seller; (ii) entity in which Seller or any past, present or future shareholder, partner, member, manager or owner of Seller has or had an interest; (iii) entity that, directly or indirectly, controls, is controlled by or is under common control with Seller and (iv) the heirs, executors, administrators, personal or legal representatives, successors and assigns of any or all of the foregoing.

 

Service Contracts means all service agreements, maintenance contracts, equipment leasing agreements, warranties, guarantees, bonds, construction contracts, open purchase orders and other contracts

 

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for the provision of labor, services, materials or supplies relating solely to the Real Property, Improvements or Personal Property that are currently in effect and to which Seller is a party, as listed and described on Exhibit F attached hereto, together with all renewals, supplements, amendments and modifications thereof, and any new such agreements entered into after the Effective Date, to the extent permitted by Section 7.1.  The Apex Agreements, the Leasing Commission Agreements and the Agency Agreement are not Service Contracts.

 

Service Contract Termination Notices has the meaning ascribed to such term in Section 10.2(h), and are to be delivered by Purchaser to certain service providers pursuant to Section 10.6.

 

SNDA” has the meaning ascribed to such term in Section 7.4.

 

SNDA Tenant means each Tenant listed as an “SNDA Tenant” on Exhibit P hereto.

 

South-West Maintenance Associationmeans the Association known as the South-West Maintenance Corp. Association (formerly known as the South Westchester Executive Park Maintenance Association or SWEP Maintenance Association).

 

South-West Maintenance Corp. Association Documents means collectively (i) that certain South Westchester Executive Park Maintenance Association Declaration dated May 3, 1982 recorded on May 5, 1982 in the Clerk’s Office in Liber 7763 of conveyances at page 408.  A Supplementary Declaration, made as of June 8, 1983, was recorded in the Clerk’s Office on June 13, 1983, in Liber 7837 of conveyances, at page 723. A second Supplementary Declaration, made as of August 15, 1983, was recorded in the Clerk’s Office on August 29, 1983, in Liber 7857 of conveyances, at page 375.  An Amended and Restated Supplementary Declaration, intended to amend and restate the First Supplement, made as of October 12, 1987, was recorded in the Clerk’s Office on November 12, 1987 in Liber 9025 of conveyances, at page 130.  A third Supplementary Declaration, made as of March 13, 1989, was recorded in the Clerk’s Office on March 15, 1989 in Liber 9476 of conveyances, at page 14. A fourth Supplementary Declaration, made as of August 23, 1989, was recorded in the Clerk’s Office on September 26, 1989 in Liber 9620 of conveyances, at page 115. A sixth Supplementary Declaration (including Supplementary Declaration No. 5 made as of August 11, 1999) of South Westchester Executive Park Maintenance Association was made as of August 25, 2005. A seventh Supplementary Declaration made as of September 12, 2006 was recorded in the Clerk’s Office on March 6, 2007, Control Number 470520171. An eighth Supplementary Declaration made as of February 28, 2008 was recorded in the Clerk’s Office on March 25, 2008, Control Number 480700651. A ninth Supplementary Declaration made as of December 17, 2015 was recorded in the Clerk’s Office on January 7, 2016, Control Number 560063178 (collectively, as supplemented and amended, the “South-West Maintenance Declaration”) (ii) the By-Laws of the South-West Maintenance Association, and (iii) the rules and regulations for the South-West Maintenance Association established from time to time, if any, as any or all of the same may have been or may be amended and/or restated from time to time..

 

South Westchester Executive Park” means the executive park commonly known as the South Westchester Executive Park in the City of Yonkers, State of New York and consisting of the Property owned by Seller subject to this Agreement and subject to the South-West Maintenance Corp. Association Documents, as set forth on Schedule 1.1, as well as property owned by other parties not affiliated with Seller.

 

Survey Objection has the meaning ascribed to such term in Section 6.1.

 

Talleyrand Maintenance Associationmeans Talley Maintenance Corp. (successor by assignment from Talleyrand Executive Park Maintenance Association, Inc.).

 

Talleyrand Maintenance Association Documents means collectively, (i) that certain Talleyrand Executive Park Maintenance Association Declaration dated as of June 23, 1982 recorded on July 9, 1982 in the Clerk’s Office in Liber 7774 of conveyances at Page 427, as amended by First

 

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Amendment dated as of November 15, 1983 and recorded in the Clerk’s Office on November 21, 1982 in Liber 7879 of conveyances at Page 191, Second Amendment dated as of November 16, 1984 and recorded in the Clerk’s Office on November 21, 1984 in Liber 7984 of conveyances at Page 467 and re-recorded in the Clerk’s Office on December 13, 1984 in Liber 7996 at Page 225, Third Amendment dated as of October 25, 1996 and recorded in the Clerk’s Office on December 19, 1996 in Liber 11616 of conveyances at Page 6, Fourth Amendment  dated as of March 18, 1997 and recorded in the Clerk’s Office on June 9, 1997 in Liber 11739 at Page 217, and Fifth Amendment dated as of August 5, 1997 and recorded in the Clerk’s Office on September 17, 1997 in Liber 11814 at Page 15 (collectively, as supplemented and amended,  the “Talleyrand Maintenance Declaration”) (ii) the By-Laws of the Talleyrand Maintenance Association, and (iii) the rules and regulations for the Talleyrand Maintenance Association established from time to time, if any, as any or all of the same may have been or may be amended and/or restated from time to time.

 

Talleyrand Executive Park” means the executive park commonly known as the Talleyrand Executive Park, in the Town of Greenburgh, State of New York and consisting of the Property owned by Seller subject to this Agreement and subject to the Talleyrand Maintenance Association Documents, as set forth on Schedule 1.1, as well as property owned by other parties not affiliated with Seller.

 

Tax Protection Rights has the meaning ascribed to such term in Section 7.5(a).

 

Tenants means the tenants, users, licensees or other occupants of the Real Property and Improvements who are parties to the Leases.

 

Tenant Estoppel” has the meaning ascribed to such term in Section 7.2.

 

Tenant Notice Letters has the meaning ascribed to such term in Section 10.2(g), and are to be delivered by Purchaser to Tenants pursuant to Section 10.6.

 

Termination Surviving Obligations means the rights, liabilities and obligations set forth in Sections 5.2, 5.3, 5.4, 7.5(a), 12.1, 16.1, 18.1, 18.2, 18.3, 18.4, 18.5, 18.6, 18.7, 18.8, 18.9, 18.10, 18.11, 18.12, Articles XIII and XIV, and any other provisions which pursuant to their terms survive any termination of this Agreement.

 

Title Commitmenthas the meaning ascribed to such term in Section 6.2(a).

 

Title Company means First American Title Insurance Company (Wayne Baird and Shohail Shohpar), as lead title insurer, and Commonwealth Land Title Insurance Company, as co-insurer under a so called “me too” endorsement for a 20% interest, or such other lead title company or co-insurer in addition to Commonwealth Land Title Insurance Company as Purchaser may select, in its sole and absolute discretion.

 

Title Defect has the meaning ascribed to such term in Section 6.3(a).

 

Title Objection Date has the meaning ascribed to such term in Section 6.2(a).

 

Title Objections has the meaning ascribed to such term in Section 6.2(a).

 

Title Policy” means an ALTA extended coverage owner’s policy of title insurance covering the applicable Property in the full amount of the Purchase Price allocated to such Property, subject only to the Permitted Exceptions.

 

Total Damage Event has the meaning ascribed to such term in Section 11.1.

 

Updated Survey has the meaning ascribed to such term in Section 6.1.

 

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Violation Penalty Excess has the meaning ascribed to such term in Section 6.3(c).

 

Section 1.2                                   References: Exhibits and Schedules.  Except as otherwise specifically stated, all references in this Agreement to Articles or Sections refer to Articles or Sections of this Agreement, and all references to Exhibits or Schedules refer to Exhibits or Schedules attached hereto, all of which Exhibits and Schedules are incorporated into, and made a part of, this Agreement by reference. The words “herein,” “hereof,” “hereinafter” and words and phrases of similar import refer to this Agreement as a whole and not to any particular Section or Article.

 

ARTICLE II

AGREEMENT OF PURCHASE AND SALE

 

Section 2.1                                   Agreement.  Seller hereby agrees to sell, convey and assign to Purchaser, and Purchaser hereby agrees to purchase and accept from Seller, on the Closing Date and subject to the terms and conditions of this Agreement, all of the following (collectively, the “Property”):

 

(a)                                 the Real Property;

 

(b)                                 the lessee’s interest in the Ground Lease;

 

(c)                                  the Improvements;

 

(d)                                 the Personal Property;

 

(e)                                  the Motor Vehicles;

 

(f)                                   all of Seller’s right, title and interest as lessor in and to the Leases and, subject to the terms of the respective applicable Leases, the Security Deposits;

 

(g)                                  to the extent assignable, all of Seller’s right, title and interest in and to the Service Contracts and the Licenses and Permits; and

 

(h)                                 all of Seller’s right, title and interest, to the extent assignable or transferable, in and to all (if any) construction documents, “as built” plans and specifications and floor plans for the existing Improvements and landscape plans (including, without limitation any CAD files and drawings), surveys, environmental site assessments and warranties relating to and only to the extent reflecting current conditions at the Real Property (but specifically excluding any such items which may have been prepared for or identify potential capital improvements or development), marketing materials, electronic versions of all lease templates, maintenance and warranty records and all other intangible rights, titles, interests, privileges and appurtenances owned by Seller and related to or used exclusively in connection with the ownership, use or operation of the Real Property or the Improvements (but for the avoidance of doubt, expressly excluding the trade name “Mack-Cali” and the trademarks and logos of Mack-Cali Realty Corporation and/or Mack-Cali Realty, L.P.).

 

Section 2.2                                   Indivisible Economic Package.  Except as otherwise expressly provided in this Agreement for the removal of an individual property from this Agreement and the Closing, Purchaser has no right to purchase, and Seller has no obligation to sell, less than all of the Property, it being the express agreement and understanding of Purchaser and Seller that, as a material inducement to Seller and Purchaser to enter into this Agreement, Purchaser has agreed to purchase, and Seller has agreed to sell, all of the Property, subject to and in accordance with the terms and conditions hereof.  In addition, except as otherwise expressly provided in this Agreement for the removal of an individual Property from this Agreement and the Closing, the parties acknowledge that this Agreement is intended to effect the transfer of title to all the properties constituting the Real Property, and notwithstanding any reference in this Agreement to any singular property, building or parcel or any other similar reference implying that this Agreement relates to

 

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only one property, except as otherwise expressly provided in this Agreement for the removal of an individual property from this Agreement and the Closing, this Agreement shall be construed to relate to the transfer of title to all the properties constituting the Real Property (so that, provisions relating to the delivery of the Deed, Bill of Sale, and so forth, shall be construed to require a separate deed for each such property rather than a single deed, as well as separate bills of sale and the like), but all other references to the Property, Real Property, Personal Property or Improvements shall be deemed to refer to all of the Property, Real Property, Personal Property and Improvements in the aggregate.  Notwithstanding anything to the contrary in this Agreement, if Purchaser and/or the purchasers under the Other PSAs elect pursuant to the terms and conditions of this Agreement and/or the Other PSAs to remove (except pursuant to Section 13.1 hereof and thereof) individual Properties from this Agreement and the Closing and/or individual properties from the Other PSAs and the closings thereunder which, in the aggregate, have an Allocation of more than $50,000,000.00, then Seller shall have the right to terminate this Agreement by giving notice to Purchaser, and this Agreement shall terminate five (5) Business Days after the date of such termination notice and Purchaser shall have the right to receive a refund of the Earnest Money Deposit within one (1) Business Day following any such termination, and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligation to each other hereunder; provided that if within five (5) Business Days after the date of such termination notice Purchaser gives Seller notice revoking its prior decision(s) to remove one or more individual Properties from this Agreement and the Closing so that individual Properties and properties under the Other PSAs which, in the aggregate, have an Allocation of less than or equal to $50,000,000.00 remain so removed from this Agreement and the Closing and the Other PSAs and the closings thereunder, then Seller’s termination notice with respect to this Agreement shall be null and void, ab initio, and this Agreement shall continue in full force and effect.

 

ARTICLE III

CONSIDERATION

 

Section 3.1                                   Purchase Price.  (a)                                   The purchase price for the Property (the “Purchase Price”) shall be Four Hundred Fifty Million Eight Hundred Eighty-Three Thousand Sixty and 00/100 Dollars ($450,883,060.00) in lawful currency of the United States of America, payable as provided in Section 3.2.  No portion of the Purchase Price shall be allocated to the Personal Property, except as otherwise may be required in connection with a Section 1031 Exchange.

 

(b)                                 The Purchase Price shall be allocated (the “Allocation”) among the Properties as set forth on Schedule 3.1. The Allocation shall be binding on the parties hereto, and neither Purchaser nor Seller (nor any of their respective affiliates) shall file any tax return or other document or otherwise take any position which is inconsistent with the Allocation, except as may be adjusted by subsequent agreement by Purchaser and Seller. The terms and conditions of this Section with respect to the Allocation shall survive the Closing.

 

(c)                                  Affiliates of the ROFO (RM) Party contributed certain Properties to MCRLP pursuant to the Contribution and Exchange Agreement (RM).  Pursuant to the Contribution and Exchange Agreement (RM), the ROFO (RM) Party intends to elect to redeem certain limited partnership interests in the form of operating partnership units of MCRLP held by the ROFO (RM) Party in exchange for the OP Unit Redemption Property pursuant to an OP Unit Redemption Agreement.  If after the OP Unit Redemption Agreement is in effect, the ROFO (RM) Party has elected to remove such original designated OP Unit Redemption Property pursuant to the terms and conditions of the OP Unit Redemption Agreement, Seller and Purchaser shall use commercially reasonable efforts, and work in good faith, to agree on an individual Property which is not an LKE Property (as the case may be, the “OP Unit Substituted Redemption Property”), to become the OP Unit Redemption Property; and Seller and Purchaser shall amend this Agreement to remove such individual Property from this Agreement for substitution into the OP Unit Redemption Agreement and reduce the Purchase Price by an amount equal to the Allocation for such individual Property.  Contemporaneously with the Closing, the ROFO (RM) Party will contribute the OP

 

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Unit Redemption Property to the Purchaser, including a direction for the OP Unit Redemption Property to be conveyed by a Deed directly from Seller to Purchaser.

 

Section 3.2                                   Method of Payment of Purchase Price.  No later than 3:00 p.m. Eastern Time on the Scheduled Closing Date, Purchaser shall pay the Purchase Price (less the Earnest Money Deposit; and after all adjustments, credits and prorations are made), together with all other costs and amounts to be paid by Purchaser at the Closing pursuant to the terms of this Agreement (“Purchaser’s Costs”), by Federal Reserve wire transfer of immediately available funds to the account of Escrow Agent.  Escrow Agent, following authorization by the parties prior to 4:00 p.m. Eastern Time on the Scheduled Closing Date, shall pay: (i) to Seller by Federal Reserve wire transfer of immediately available funds to an account designated by Seller, the Purchase Price (after all adjustments, credits and prorations are made and the costs and amounts described in the immediately succeeding clause (ii) are deducted), less any costs or other amounts to be paid by Seller at Closing pursuant to the terms of this Agreement; (ii) to the appropriate payees, out of the cash proceeds of Closing otherwise payable to Seller, all costs and amounts to be paid by Seller at Closing pursuant to the terms of this Agreement; and (iii) to the appropriate payees at Closing pursuant to the terms of this Agreement, Purchaser’s Costs.

 

ARTICLE IV

EARNEST MONEY DEPOSIT
AND ESCROW INSTRUCTIONS

 

Section 4.1                                   The Earnest Money Deposit.  In conjunction with the execution and delivery of the Existing Agreement by Purchaser, Purchaser deposited with Escrow Agent, by Federal Reserve wire transfer of immediately available funds, the sum of Four Million Seven Hundred Thousand and 00/100 Dollars ($4,700,000.00) as an earnest money deposit on account of the Purchase Price (the “Initial Earnest Money Deposit”). Within one (1) Business Day after the Effective Date, Purchaser shall deposit the additional sum of Four Million Seven Hundred Thousand and 00/100 Dollars ($4,700,000.00) with Escrow Agent as an additional earnest money deposit on account of the Purchase Price (the “Additional Earnest Money Deposit”). TIME IS OF THE ESSENCE with respect to the deposit of the Additional Earnest Money Deposit.  The Initial Earnest Money Deposit and the Additional Earnest Money Deposit, together with any interest earned thereon, are hereinafter referred to individually and collectively as the “Earnest Money Deposit”.

 

Section 4.2                                   Escrow Instructions.  The Earnest Money Deposit shall be held in escrow by Escrow Agent in an interest-bearing account, in accordance with the provisions of Section 4.4 and Article XVII. The Earnest Money Deposit is, except as otherwise provided herein, non-refundable to Purchaser.

 

Section 4.3                                   Designation of Certifying Person.  In order to assure compliance with the requirements of Section 6045 of the Internal Revenue Code of 1986, as amended (the “Code”), and any related reporting requirements of the Code, the parties hereto agree as follows:

 

(a)                                 Provided Escrow Agent shall execute a statement in writing (in form and substance reasonably acceptable to the parties hereunder) pursuant to which it agrees to assume all responsibilities for information reporting required under Section 6045(e) of the Code, Seller and Purchaser shall designate Escrow Agent as the person to be responsible for all information reporting under Section 6045(e) of the Code (the “Certifying Person”).  If Escrow Agent refuses to execute a statement pursuant to which it agrees to be the Certifying Person, Seller and Purchaser shall agree to appoint another third party as the Certifying Person.

 

(b)                                 Seller and Purchaser each hereby agree:

 

(i)                                     to provide to the Certifying Person all information and certifications regarding such party, as reasonably requested by the Certifying Person or otherwise

 

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required to be provided by a party to the transaction described herein under Section 6045 of the Code; and

 

(ii)                                  to provide to the Certifying Person such party’s taxpayer identification number and a statement (on Internal Revenue Service Form W-9 or an acceptable substitute form, or on any other form the applicable current or future Code sections and regulations might require and/or any form requested by the Certifying Person), signed under penalties of perjury, stating that the taxpayer identification number supplied by such party to the Certifying Person is correct.

 

Section 4.4                                   Earnest Money Payable to HIG. Notwithstanding anything to the contrary in this Agreement or in the Other PSAs, if Purchaser is entitled to a return of all or any portion of the “Earnest Money Deposit” in accordance with the terms and provisions of this Agreement and the Other PSAs as a result of any termination of this Agreement and the Other PSAs, then eighty percent (80%) (the “HIG Percentage”) of that portion of the “Earnest Money Deposit” to which Purchaser is so entitled under this Agreement and the Other PSAs shall be paid by Escrow Agent directly to H.I.G. Realty Partners III (Onshore), L.P. and H.I.G. Realty Partners III (Offshore), L.P. (collectively, “HIG”) pursuant to the wire instructions attached hereto as Exhibit O, without the need for any demand or notice by or from HIG. HIG, upon written notice given to Purchaser, Seller and Escrow Agent, shall have the right to change the HIG Percentage at any time prior to Closing or the earlier termination of this Agreement and the Other PSAs. Purchaser, Seller and Escrow Agent each hereby acknowledge and agree that HIG (i) is an intended third-party beneficiary of this Section and (ii) shall have the right to enforce the terms and provisions of this Section.

 

ARTICLE V

INSPECTION OF PROPERTY

 

Section 5.1                                   Evaluation Period; Environmental Evaluation Period. For a period ending at 6:00 p.m. Eastern Time on March 4, 2019 (the “Evaluation Period”), and continuing thereafter until Closing or the earlier termination of this Agreement, Purchaser, Purchaser’s Affiliates, HIG, its affiliates, and each of their authorized agents, lenders, consultants and representatives (for purposes of this Article V, the “Licensee Parties”) shall have the right, subject to the right of any Tenants, to enter upon the Real Property at all reasonable times during normal business hours to perform an inspection of the Property.  Purchaser will provide to Seller notice of the intention of Purchaser or the other Licensee Parties to enter the Real Property at least one (1) Business Day prior to such intended entry and specify the intended purpose therefor and the inspections and examinations (collectively, the “Investigations”) contemplated to be made and with whom any Licensee Party will communicate.  At Seller’s option, Seller may be present for any such entry and inspection. Purchaser shall not communicate with or contact any of the Tenants or any of the Authorities (except for the purposes of obtaining and generating due diligence reports and materials including, without limitation, due diligence regarding any Purchaser redevelopment plans) without the prior written consent of Seller not to be unreasonably withheld, conditioned or delayed.  Except pursuant to the terms and conditions of the next paragraph of this Section 5.1, no physical testing or sampling which is more invasive than a Phase I environmental study shall be conducted during any such entry by Purchaser or any Licensee Party upon the Real Property without Seller’s specific prior written consent.

 

For a period commencing on the Effective Date and ending at 6:00 p.m. Eastern Time on March 25, 2019 (the “Environmental Evaluation Period”), Purchaser and EBI Consulting (the “Environmental Consultant”) shall have the right, subject to the right of any Tenants, and pursuant to the term and conditions of the Environmental Due Diligence Agreement, to enter only upon the Real Property identified in the Environmental Due Diligence Agreement at all reasonable times during normal business hours to perform only the environmental testing and investigations expressly set forth in the Environmental Due Diligence Agreement (the “Environmental Testing”).  Purchaser shall cause the Environmental Consultant to perform the Environmental Testing in accordance with the terms and conditions of the

 

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Environmental Due Diligence Agreement.  Purchaser shall direct the Environmental Consultant to deliver to Purchaser copies of the final environmental reports prepared by the Environmental Consultant setting forth the results of the Environmental Testing (the “Environmental Reports”).  The Environmental Reports shall only be sent to Seller if specifically requested by Seller.  If the Environmental Reports state that any of the Environmental Standards are exceeded with respect to an individual Property, Purchaser shall have the option, to be exercised prior to the expiration of the Environmental Evaluation Period, to amend this Agreement to remove the individual Property that is the subject of any such exceeded Environmental Standard from this Agreement.  If Purchaser so elects to amend this Agreement, the Purchase Price shall be accordingly reduced by the Allocation for such individual Property, and the parties shall enter into an amendment to this Agreement confirming the removal of such individual Property and the applicable reduction of the Purchase Price.  Since Purchaser gave the Notice to Proceed, Purchaser shall have no right to terminate this Agreement during the Environmental Evaluation Period, or otherwise, if any Environmental Standard is exceeded with respect to one or more of the Properties.

 

TIME IS OF THE ESSENCE with respect to the provisions of this Section 5.1.

 

Section 5.2                                   Document Review.

 

(a)                                 During the Evaluation Period, and continuing thereafter until Closing or the earlier termination of this Agreement, Purchaser and the Licensee Parties shall have the right to review, inspect and copy, at Purchaser’s sole cost and expense, all of the following which, to Seller’s Knowledge (as defined at the end of Section 8.1), are in Seller’s possession or control (collectively, the “Documents”): all existing environmental reports and studies of the Real Property and Improvements commissioned by Seller (which Purchaser shall have the right to have updated at Purchaser’s sole cost and expense), existing surveys of the Real Property, “as built” plans and specifications for the existing Improvements, operating statements, real estate tax bills, together with assessments (special or otherwise), ad valorem and personal property tax bills, and any tax agreements for payments in lieu of taxes covering the period of Seller’s ownership of the Property; Seller’s most current lease schedule in the form attached hereto as Exhibit G (the “Lease Schedule”); current operating statements; the Ground Leases, the Leases, Service Contracts, Licenses and Permits, the Association Documents, the Condominium Documents and all other documents used in connection with the operation or ownership of the Property except for the Protected Information.  Such inspections shall occur at a location selected by Seller, which may be at the office of Seller, Seller’s counsel, Seller’s property manager, at the Real Property or any of them, or some or all of the Documents may be delivered to Purchaser in electronic format or as hard copies or may be made available to Purchaser for review electronically.  Purchaser shall not have the right to review or inspect Seller’s materials which are attorney client privileged or which incorporate proprietary analytical or operational tools of Seller, MCRC, MCRLP or any of their respective affiliates and/or materials not directly related to the leasing, operation, maintenance and/or management of the Property, including, without limitation, Seller’s internal memoranda, financial projections, budgets, appraisals, proposals for work not actually undertaken, engineering reports and drawings, plans and specifications for possible capital projects or development, and accounting and tax records (other than operating statements) (collectively “Protected Information”) information.

 

(b)                                 Purchaser acknowledges that any and all of the Documents may be proprietary and confidential in nature and have been provided to Purchaser solely to assist Purchaser in determining the desirability of purchasing the Property.  Subject only to the provisions of Article XII, prior to Closing, Purchaser agrees not to disclose the contents of the Documents or the results of the Investigations or any of the provisions, terms or conditions contained therein to any party outside of Purchaser’s organization other than HIG, its affiliates, the Licensee Parties and Purchaser’s and HIG’s attorneys, partners, accountants, or prospective lenders and investors and their respective counsel and accountants (collectively, for purposes of this Section 5.2(b), the “Permitted Outside Parties”).  Purchaser further agrees that within its organization, and as to the Permitted Outside Parties, the Documents, the contents thereof, and/or the results of the Investigations will be disclosed and exhibited prior to Closing only to those persons within

 

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Purchaser’s organization or to those Permitted Outside Parties who are responsible for determining the desirability of Purchaser’s acquisition of the Property.  In permitting Purchaser and the Permitted Outside Parties to review the Documents and other information to assist Purchaser, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third party benefits or relationships of any kind, either express or implied, have been offered, intended or created by Seller, and any such claims are expressly rejected by Seller and waived by Purchaser and the Permitted Outside Parties, for whom, by its execution of this Agreement, Purchaser is acting as an agent with regard to such waiver.  Purchaser agrees prior to Closing that all such information shall be kept confidential by Purchaser and all Permitted Outside Parties and their respective employees, agents and contractors.  If prior to Closing disclosure of any of such confidential information is required pursuant to law, or pursuant to court or other administrative process, then Purchaser and all Permitted Outside Parties, as the case may be, shall give immediate written notice to Seller, specifying to whom and why such disclosure is required, and no such disclosure shall be made if Seller objects, unless and until a determination requiring the disclosure is made by a court of competent jurisdiction or Purchaser or one of the Permitted Outside Parties is advised by counsel that disclosure prior to such time is required by law.  Seller shall have the right to interpose all objections that Seller may have to the disclosure prior to Closing, and Purchaser shall, and shall make reasonable efforts to cause all Permitted Outside Parties and their respective employees, agents and contractors, at no cost to Seller, to reasonably cooperate prior to Closing with Seller in connection with such objections, including giving testimony and signing affidavits, certifications or other documentation as may be required by Seller, provided the information contained in the affidavits, certifications or other documentation is true and accurate.  Prior to the initial entry upon the Real Property and/or Improvements, Purchaser shall advise anyone acting on behalf of Purchaser, including the Permitted Outside Parties, of the terms of this confidentiality provision and their obligation to be bound by it.  This confidentiality provision shall survive the expiration or earlier termination of this Agreement, but shall not survive Closing. It is understood and agreed that any Documents provided hereunder or information contained therein shall not be deemed confidential if it is of public record or otherwise generally available to the public.

 

(c)                                  Purchaser acknowledges that some of the Documents may have been prepared by third parties and may have been prepared prior to Seller’s ownership of the Property. PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE TRUTH, ACCURACY OR COMPLETENESS OF THE DOCUMENTS OR THE SOURCES THEREOF.  SELLER HAS NOT UNDERTAKEN ANY INDEPENDENT INVESTIGATION AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DOCUMENTS AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IS PROVIDING THE DOCUMENTS SOLELY AS AN ACCOMMODATION TO PURCHASER.

 

Section 5.3                                   Entry and Inspection Obligations; Termination of Agreement.

 

(a)                                 Purchaser agrees that in entering upon and inspecting or examining the Property, Purchaser and the other Licensee Parties will not unreasonably disturb the Tenants or interfere with the use of the Property pursuant to the Leases; unreasonably interfere with the operation and maintenance of the Real Property or Improvements; damage any part of the Property or any personal property owned or held by Tenants or any other person or entity; injure or otherwise cause bodily harm to Seller or any Tenant, or to any of their respective agents, guests, invitees, contractors and employees, or to any other person or entity; or permit any liens to attach to the Property by reason of the exercise of Purchaser’s rights under this Article V.  Purchaser will furnish or cause to be furnished to Seller evidence of, and will cause to be maintained and kept in effect, without expense to Seller, at all times that any entry is made upon the Property: (1) insurance against claims for personal injury (including death), and property damage, under a policy or policies of general public liability insurance of not less than One Million Dollars ($1,000,000) in respect to bodily injury (including death), and not less than Five Million Dollars ($5,000,000) of excess liability insurance, naming Seller and its mortgagee, if any, MCRLP and MCRC, as additional insureds; (2) adequate workers’ compensation insurance in statutory limits to cover employees of Purchaser and, to the

 

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extent applicable, any Licensee Parties that plan to enter onto the Real Property; and (3) if entry upon the Real Property is for purposes of any invasive testing or sampling, errors and omissions insurance and contractor’s pollution liability insurance of not less than Three Million Dollars ($3,000,000), naming Seller and its mortgagee, if any, MCRLP, and MCRC, as additional insureds.  Each of the policies described in clauses (1) and (3) above shall be on an occurrence basis and not on a claims made basis and shall provide that such policy cannot be canceled without at least thirty (30) days prior written notice to Seller, and each policy shall be issued by a recognized, responsible insurance company licensed to do business in the State of New York.  Proof of payment of the premium of each policy and each replacement policy shall also be delivered to Seller.  Purchaser shall: (i) promptly pay when due the costs of all entry, inspections and examinations done with regard to the Property; (ii) cause any inspection to be conducted in accordance with standards customarily employed in the industry and in compliance with all Governmental Regulations; and (iii) restore any portion of the Real Property and Improvements damaged by such inspections, testing, sampling, inspections and examination to the condition in which the same were found before any such damage.

 

(b)                                 Purchaser hereby indemnifies, defends and holds Seller and its partners, agents, directors, officers, employees, successors and assigns harmless from and against any and all liens, claims, causes of action, damages, liabilities, demands, suits, and obligations to third parties, together with all losses, penalties, costs and expenses relating to any of the foregoing (including but not limited to court costs and reasonable attorneys’ fees and expenses), arising out of any inspections, investigations, examinations, sampling or tests conducted by Purchaser or any of the Licensee Parties on the Property, whether prior to the date hereof or after the date hereof and prior to Closing, or any violation of the provisions of this Article V; provided, however, this indemnity shall not extend to protect Seller from any pre-existing liabilities for matters merely discovered by Purchaser (e.g., latent environmental contamination).

 

(c)                                  Prior to the expiration of the Evaluation Period, Purchaser shall determine (in its sole discretion) whether it wants to proceed with the transactions set forth in this Agreement.  If Purchaser elects (in its sole discretion) to proceed with the transactions set forth in this Agreement, it shall do so by providing written notice to Seller of its election to proceed with the transactions set forth in this Agreement (such notice, a “Notice to Proceed”) by no later than 6:00 p.m. (Eastern Time) on the last day of the Evaluation Period, WITH TIME BEING OF THE ESSENCE WITH RESPECT THERETO.  Purchaser’s execution and delivery of this Agreement is the Notice to Proceed whereby Purchaser has elected to proceed with the transactions set forth in this Agreement.  Purchaser has no right to rescind such Notice to Proceed or to otherwise terminate this Agreement,except as otherwise expressly set forth in this Agreement. Seller and Purchaser agree that any termination of either of the Other PSAs by the purchaser thereunder prior to the expiration of the evaluation period under such Other PSA shall automatically terminate this Agreement.

 

(d)                                 On or prior to the Effective Date, Purchaser may notify Seller in writing of any assignable warranties that Purchaser wants Seller to assign to Purchaser at or promptly after Closing and (y) any Service Contracts that Purchaser wants to terminate pursuant to Section 7.1(c), WITH TIME BEING OF THE ESSENCE WITH RESPECT TO SUCH NOTICE.  Failure to provide a notice shall be deemed an election by Purchaser to take an assignment of all warranties and to not terminate any Service Contracts.

 

(e)                                  The Right of Access and Confidentiality Agreement, and Environmental Due Diligence Agreement respectively continue to govern and apply to all access to the Property, inspections, investigations, examinations, sampling or tests conducted by Purchaser or any of the Licensee Parties, except that the terms and conditions of this Section 5.3 shall govern, apply and supersede to the extent of any express inconsistency with the terms and conditions of the Right of Access and Confidentiality Agreement or the Environmental Due Diligence Agreement, and in such case, as applicable, such terms and conditions of this Section 5.3 shall relate back prior to the date of this Agreement to the date of the Right of Access and Confidentiality Agreement and/or the Environmental Due Diligence Agreement.

 

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(f)                                   Until Closing or the termination of this Agreement, Seller shall continue to afford Purchaser reasonable access to the Property and the Documents in accordance with, and subject to, the terms hereof.

 

Section 5.4                                   Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER. THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY. OTHER THAN THE MATTERS REPRESENTED AND/OR WARRANTED TO BY SELLER IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENT, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE.

 

SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER, IN EACH CASE EXCEPT AS EXPRESSLY MADE BY SELLER IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENT, WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENT, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” WITH ALL FAULTS.  PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY.  PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONS, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER (EXCLUDING THE MATTERS REPRESENTED AND/OR WARRANTED TO BY SELLER IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENT) NOR OF ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR ATTORNEY OF SELLER. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY

 

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PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCES, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED, EXCEPT AS EXPRESSLY PROVIDED BY SELLER IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENT, THE COMPLETENESS, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASER.  UPON CLOSING, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENT, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTY, “AS IS, WHERE IS,” WITH ALL FAULTS. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN OR IN ANY CLOSING DOCUMENT. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTY.  PURCHASER, WITH PURCHASER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT.

 

PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE, EXCEPT AS EXPRESSLY PERMITTED AND LIMITED PURSUANT TO THIS AGREEMENT, NOT TO SUE SELLER AND SELLER’S AFFILIATES ON, AND RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM, AND WAIVE, ANY CLAIM OR CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE REAL PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE REAL PROPERTY. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.

 

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ARTICLE VI

TITLE AND SURVEY MATTERS

 

Section 6.1                                   Survey.  Purchaser acknowledges receipt of the Existing Survey.  Any modification, update or recertification of the Existing Survey or any new survey shall be at Purchaser’s election and sole cost and expense.  Any new survey or update of the Existing Survey that Purchaser has elected to obtain is herein referred to as the “Updated Survey.”  Any new material matters disclosed on the Updated Survey (i.e., not disclosed on the Existing Survey) shall constitute a “Survey Objection” under this Agreement if Purchaser objects to same in writing on or before the Title Objection Date (as defined in Section 6.2(a) below), WITH TIME BEING OF THE ESSENCE.

 

Section 6.2                                   Title Commitment.  (a)      Purchaser acknowledges receipt of the Commonwealth Title Commitment. If Purchaser elects to use a title company other than Commonwealth Land Title Insurance Company, prior to the Effective Date, Purchaser shall have ordered from the Title Company a title insurance commitment for an Owner’s Title Insurance Policy (the Title Commitment”). If Purchaser elects to use Commonwealth Land Title Insurance Company as the Title Company, within two (2) Business Days after the Effective Date, Purchaser shall order from the Title Company an update to said Commonwealth Title Commitment.  Prior to the expiration of the Evaluation Period (theTitle Objection Date), Purchaser shall notify Seller in writing of any (i) exceptions to title to the Real Property raised by the Title Company if Purchaser deems same unacceptable (Title Objections”) and (ii) Survey Objections.  In the event Seller does not receive notice of any Title Objections or Survey Objections by the Title Objection Date, Purchaser will be deemed to have accepted the exceptions to title set forth in the Title Commitment, and such exceptions shall constitutePermitted Exceptions, and all matters shown on the Updated Survey.  TIME SHALL BE OF THE ESSENCE WITH RESPECT TO THE TITLE OBJECTION DATE.

 

(b)                                 By the date (the New Objection Date”) which is five (5) Business Days after Purchaser’s counsel receives notice of any (i) new exception to title to the Real Property recorded in the land records or arising after the effective date of the Title Commitment or (ii) new material matter first disclosed in any update to the Updated Survey after the Title Objection Date, as the case may be, and prior to the Closing (or as promptly as possible prior to the Closing if such notice is received with less than five (5) Business Days prior to the Closing), Purchaser shall provide Seller with written notice of its objection to such new exception if Purchaser deems same unacceptable (New Title Objection”). TIME SHALL BE OF THE ESSENCE WITH RESPECT TO THE NEW OBJECTION DATE.  In the event Seller does not receive the New Title Objection by the New Objection Date, Purchaser will be deemed to have accepted the applicable exceptions to title set forth on any applicable update to the Title Commitment as Permitted Exceptions.

 

(c)                                  All taxes, water rates or charges, sewer rents and assessments, plus interest and penalties thereon, which on the Closing Date are liens against the Real Property and which Seller is obligated to pay and discharge will be credited against the Purchase Price (subject to the provision for apportionment of taxes, water rates and sewer rents herein contained) and shall not be deemed a Title Objection.  If on the Closing Date there shall be security interests filed against the Real Property, such items shall not be Title Objections if (i) the personal property covered by such security interests are no longer in or on the Real Property; (ii) such personal property is the property of a Tenant, and Seller executes and delivers an affidavit to such effect; or (iii) the security interest was filed more than five (5) years prior to the Closing Date and was not renewed; and in addition, as a result thereof or otherwise, the Title Company omits such security interest as an exception from the Title Commitment.

 

(d)                                 If on the Closing Date the Real Property shall be affected by any lien which, pursuant to the provisions of this Agreement, is required to be discharged or satisfied by Seller, Seller shall not be required to discharge or satisfy the same of record provided the money necessary to satisfy the lien is retained by the Title Company at Closing to be applied to satisfy such lien at Closing, or Seller provides an indemnity from MCRLP in form and substance satisfactory to the Title Company, the Title Company omits the lien as an exception from the Title Commitment without additional premium or cost to Purchaser,

 

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and Purchaser’s lender does not object to such omission based on such indemnity and a credit is given to Purchaser for the recording charges for a satisfaction or discharge of such lien.

 

(e)                                  No franchise, transfer, inheritance, income, corporate or other tax open, levied or imposed against Seller or any former owner of the Real Property, that may be a lien against the Property on the Closing Date, shall be an objection to title if the Title Company insures against collection thereof from or out of the Real Property and/or the Improvements, and provided further that Seller deposits with the Title Company a sum reasonably sufficient to secure a release of the Real Property from the lien thereof or an indemnity agreement reasonably satisfactory to the Title Company, the Title Company omits the lien as an exception from the Title Commitment and Purchaser’s lender does not object to such omission based on such indemnity agreement. If any such tax issue is not resolved within sixty (60) days of after Closing, the Title Company shall, at Purchaser’s direction use any escrowed funds to satisfy such tax.  If a search of title discloses judgments, bankruptcies, or other returns against other persons having names the same as or similar to that of Seller, Seller will deliver to Purchaser and the Title Company an affidavit stating that such judgments, bankruptcies or other returns do not apply to Seller, and, so long as the Title Company omits the same as an exception from the Title Commitment without additional premium or cost to Purchaser, such search results shall not be deemed Title Objections.

 

Section 6.3                                   Title Defect.

 

(a)                                 In the event Seller receives notice of any Survey Objection or Title Objection within the time periods required under Sections 6.1 and 6.2 above (collectively and individually, a “Title Defect”), Seller may elect (but shall not be obligated) to attempt to remove, or cause to be removed at its expense, any such Title Defect, and shall provide Purchaser with notice, within seven (7) days after its receipt of any such objection, of its intention to attempt to cure any such Title Defect.  Failure to respond within such seven (7) day period shall be deemed an election by Seller to attempt to cure such objection.  If Seller elects or is deemed to have elected to attempt to cure any Title Defect, (i) the Closing shall not occur any earlier than five (5) Business Days after Seller has cured the Title Defect and given Purchaser notice thereof, and (ii) the Scheduled Closing Date, to the extent elected by Seller, shall be extended, for a period not to exceed fifteen (15) days, for the purpose of attempting such removal.  In the event that (A) Seller elects not to attempt to cure any such Title Defect, or (B) Seller is unable to cure any such Title Defect for any period elected by Seller but not to exceed fifteen (15) days from the Scheduled Closing Date, Seller shall so advise Purchaser, and Purchaser shall have the right to (1) waive such Title Defect and proceed to the Closing, or (2) amend this Agreement to remove the individual Property that Seller is unable to convey free and clear of Title Defects and reduce the Purchase Price by an amount equal to the Allocation for such Property. Purchaser shall make such election within ten (10) days of receipt of Seller’s notice.  Failure to so elect within such ten (10) day period shall be deemed an election under clause (2) above.  If Purchaser elects to proceed to the Closing, any Title Defects waived by Purchaser shall be deemed to constitute Permitted Exceptions.

 

(b)                                 Notwithstanding any provision of this Article VI to the contrary, Seller will be obligated to cure exceptions to title to the Property, regardless of notice from Purchaser, in the manner described above, (i) relating to liens and security interests securing any financings to Seller, (ii) any mechanic’s liens resulting from work at the Property commissioned by Seller, (iii) any other liens against the Property based on claims against Seller, or against any tenant unless such tenant is obligated under its lease to discharge such lien (by payment or filing a bond or otherwise as permitted by law), which may be cured by the payment of up to three-quarters of one percent (0.75%) of the Allocation for a particular Property, in the aggregate, with respect to all liens described in this clause (iii) which affect such Property; however up to, in the aggregate with respect to all liens described in this clause (iii), three-quarters of one percent (0.75%) of the Purchase Price, and (iv) any exceptions or encumbrances to title created by Seller or any Seller’s Affiliate after the Effective Date.  Purchaser shall have the right to apply any portion of the Purchase Price at Closing to satisfy, cure and discharge any of the liens, security interests and encumbrances that Seller is required to cure pursuant to this Section 6.3(b).  Notwithstanding anything to the contrary in

 

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this Agreement or the Other PSAs, the mandatory cure cap set forth as to all liens described in clause (iii) of this Section 6.3(b) (i.e., three-quarters of one percent (0.75%) of the Purchase Price) is an aggregate amount to be applied with respect to Seller under this Agreement and the seller under the Other PSAs and may be reached solely under this Agreement or either of the Other PSAs, or partially under this Agreement and the Other PSAs.

 

(c)                                  Purchaser shall accept title to the Real Property subject to any and all violations, provided that Seller shall, at or prior to Closing, pay any outstanding fines, penalties and interest thereon up to an aggregate amount of $750,000.00 which are in liquidated sums on the face of such violations.  In the event that there are such amounts outstanding in excess of $750,000.00 (the “Violation Penalty Excess”), Purchaser may, within three (3) Business Days after being notified or obtaining knowledge that such Violation Penalty Excess exists or, if sooner, before Closing, (i) waive such Violation Penalty Excess and proceed to the Closing, or (ii) amend this Agreement to remove the individual Property(ies) affected by such Violation Penalty Excess and reduce the Purchase Price by an amount equal to the Allocation for such Property(ies); provided, however, if Purchaser exercises the foregoing Property(ies) removal right, Seller may within three (3) Business Days thereafter or, if sooner, before Closing agree to also pay the Violation Penalty Excess in which case the Purchaser’s election to remove such Property(ies) shall be null and void, ab initio, and this Agreement shall continue in full force and effect with Seller obligated to also pay the Violation Penalty Excess.  Notwithstanding anything to the contrary in this Agreement or the Other PSAs, the $750,000.00 mandatory violation penalty payment cap set forth in this Section 6.3(c) is an aggregate amount to be applied with respect to Seller under this Agreement and the seller under the Other PSAs and may be reached solely under this Agreement or either of the Other PSAs, or partially under this Agreement and the Other PSAs.

 

ARTICLE VII

INTERIM OPERATING COVENANTS AND ESTOPPELS

 

Section 7.1                                   Interim Operating Covenants.  Seller makes the following covenants to Purchaser:

 

(a)                                 Operations.  From the Effective Date until Closing:

 

Seller will continue to operate, manage and maintain the Real Property and the Improvements in the ordinary course of Seller’s business and substantially in accordance with Seller’s present practice, subject to ordinary wear and tear and further subject to Article XI of this Agreement, and not postpone any regularly scheduled maintenance as a result of this transaction.  Seller shall comply in all material respects with its obligations, as landlord, under all Leases.  Seller shall not amend, renew, extend or terminate any existing Lease, or enter into any new Lease without Purchaser’s prior written consent, which consent may be given or denied in Purchaser’s sole discretion.  After January 25, 2019, Seller shall not initiate or settle any tax appeal for the tax year in which the Closing is scheduled to occur or tax years thereafter, without Purchaser’s prior written consent, which consent may be given or denied in Purchaser’s sole discretion.  Seller may prosecute and settle any tax appeals for tax years prior to the year in which the Closing occurs without Purchaser’s prior written consent. Seller shall maintain in full force and effect all insurance policies currently in effect with respect to the Property.  Seller shall comply in all material respects with its obligations under all Ground Leases, Condominium Documents and Association Agreements.  Seller shall not amend, modify, renew, extend, terminate, or enter into any new agreements with respect to, any Ground Lease, Condominium Document or Association Document without Purchaser’s prior written consent, which consent may be given or denied in Purchaser’s sole discretion.

 

(b)                                 Compliance with Governmental Regulations. From the Effective Date until Closing, Seller will not knowingly take any, or refrain from taking, action that Seller knows would result in a failure to comply in all material respects with all Governmental Regulations applicable to the Property, it being

 

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understood and agreed that prior to Closing, Seller will have the right to contest any such Governmental Regulations in a manner that is not adverse to any Property.

 

(c)                                  Service Contracts. From the expiration of the Evaluation Period until Closing, Seller will not (i) enter into any Service Contract unless such Service Contract is on terms substantially the same as the Service Contract which it is replacing and is terminable on thirty (30) days’ notice without penalty or unless Purchaser consents thereto in writing, which approval will not be unreasonably withheld, delayed or conditioned or (ii) terminate any Service Contracts unless Purchaser consents thereto in writing, which approval will not be unreasonably withheld, delayed or conditioned; provided that Purchaser hereby consents to the termination of the Agency Agreement.  On or before the expiration of the Evaluation Period, Purchaser shall notify Seller in writing of any Service Contracts which Purchaser wants to terminate on or after the Closing Date, to the extent the same can be terminated, WITH TIME BEING OF THE ESSENCE WITH RESPECT TO SUCH NOTICE.  At Closing, Purchaser shall assume all Service Contracts. Seller shall deliver to Purchaser at Closing a termination letter from Purchaser with respect to any Service Contracts which Purchaser has so identified for termination on or after the Closing Date, to the extent the same can be terminated (collectively, the “Service Contracts Termination Notices”).  Any and all costs accruing on or after the Closing Date under any Service Contract, whether or not terminated by Purchaser on or after the Closing Date, shall be borne entirely by Purchaser.

 

(d)                                 Notices. To the extent received by Seller from the Effective Date until Closing, Seller shall promptly deliver to Purchaser copies of any written notice (i) from a Tenant, any ground lessor under a Ground Lease or any Association, or (ii) that alleges a violation of any Governmental Regulations.

 

(e)                                  No Advance Rent.  Seller has not sent invoices to or charged Tenants for and, without Purchaser’s prior written consent, will not (except if otherwise expressly provided in a Lease and subject to proper apportionment thereof in accordance with this Agreement) send invoices to or charge Tenants for so called fixed or base rent (for avoidance of doubt not to include any security deposits, additional rent, percentage rent or any other type of rent) more than one month in advance.  However, if any such fixed or base rent is nevertheless paid to Seller, such rent shall be subject to proper apportionment thereof in accordance with this Agreement.

 

(f)                                   Bill and Invoices.  Seller shall remain responsible after the Closing for all bills and invoices received by Seller for labor, goods and materials, services and utility charges contracted for by Seller for its own account with respect to the Property for which Seller is responsible relating to the period prior to Closing and otherwise subject to apportionment and/or Purchaser’s assumption thereof pursuant to the terms and conditions of this Agreement and/or the Closing documents executed by Purchaser.

 

(g)                                  No Alteration.  Subject to rights of tenants and landlord’s obligations under the applicable Lease, Seller shall not undertake or perform or allow to be undertaken or performed any construction, demolition, alteration or similar activities of or at the Real Property, except in connection with any repair and/or replacement work, which shall be performed by Seller as necessary in order to keep and maintain the Real Property in good order and repair.

 

(h)                                 No Transfers Encumbrances.  Between the Effective Date and Closing, Seller (i) shall not sell or otherwise transfer, or permit the sale or transfer of, the Property or any portion thereof and (ii) shall not subject the Property to, or consent to the Property becoming subject to, any liens, encumbrances, covenants, conditions, easements, rights of way, agreements or other similar matters.

 

Section 7.2                                   Tenant Estoppels.  It will be a condition to Purchaser’s obligation to close hereunder that Seller obtain a Tenant Estoppel from (i) Montefiore Medical Center (except for its separate lease of 7,300 square feet), (ii) Tierpoint New York LLC, and (ii) Tenants or, together with the sellers under the Other PSAs, “Tenants” under and as defined in the Other PSAs to the extent required to bring the aggregate rented square footage covered by Tenant Estoppels to no less than 75% (the “Required

 

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Percentage”) of the aggregate rented square footage of the Improvements under this Agreement and the Other PSAs, on a combined basis and deliver, together with the sellers under the Other PSAs, such Tenant Estoppels to Purchaser at least three (3) Business Days prior to Closing.  Notwithstanding anything to the contrary set forth above, in no event shall the square footage demised pursuant to (x) a Lease or a “Lease” under and as defined in the Other PSAs that is scheduled to expire prior to or within sixty (60) days after the Scheduled Closing Date, or (y) the Lease to Fuji Medical Systems USA, Inc. described in the Other PSA for the Stamford, CT properties be included in calculating such rented square footage.

 

Seller has delivered by email to Purchaser’s counsel a draft Tenant Estoppel for each Major Tenant.  Purchaser has approved the drafts of Major Tenant Estoppels.  At a time selected by Seller but in any event no later than five (5) Business Days after Purchaser’s timely deposit with the Escrow Agent of the Additional Earnest Money Deposit pursuant to Section 4.1 above, Seller shall deliver a draft Major Tenant Estoppel to each respective Major Tenant for execution.  Seller may, but is not required to, deliver by email draft non-Major Tenant Estoppels to Purchaser’s counsel for review and comment.  At a time selected by Seller but in any event no later than five (5) Business Days after Purchaser’s timely deposit with the Escrow Agent of the Additional Earnest Money Deposit pursuant to Section 4.1 above, Seller shall deliver a draft Tenant Estoppel to each respective non-Major Tenant for execution.  Seller will use commercially reasonable efforts to obtain and deliver to Purchaser a Tenant Estoppel from all Tenants.  Furthermore, Seller shall be obligated to deliver to Purchaser any Tenant Estoppel in the form that Seller receives from a Tenant even if the Required Percentage has been achieved.  Seller shall not be in default of its obligations hereunder if any Major Tenant or Tenant fails to deliver a Tenant Estoppel, or delivers a Tenant Estoppel which is not in accordance with this Agreement.  Seller agrees to deliver by email (NOTING IN SUCH EMAIL THE DEEMED APPROVAL PROVISIONS OF THIS SECTION FOR PURCHASER’S FAILURE TO TIMELY RESPOND) to Purchaser (sent to Tim Jones - tjones@rmcdev.com, Sandy Spring - sspring@rmcdev.com, Jeremy Frank - jfrank@rmcdev.com, Christian Wallace - cwallace@rmcdev.com, Renee Fuller - rfuller@rmcdev.com, Richard J. Shea, Jr. — rshea@cbshealaw.com, Christopher R. Shea — cshea@cbshealaw.com, Lisa Neary — lneary@cbshealaw.com, and Alicia Davis - Alicia.Davis@cwt.com), each executed Tenant Estoppel within three (3) Business Days after Seller’s receipt of the same from the applicable Tenant.  If Purchaser fails to provide comments by email (sent to Brian Primost - bprimost@mack-cali.com, Lawrence Reiss - LReiss@mack-cali.com, Susan Epstein- SEpstein@mack-cali.com, and Miles Borden - mborden@seyfarth.com) to any such executed estoppel certificate within three (3) Business Days’ after Purchaser’s receipt thereof by an email containing the requisite deemed approval provisions described in the immediately preceding sentence, Purchaser shall be deemed to have approved and accepted such estoppel certificate, WITH TIME BEING OF THE ESSENCE WITH RESPECT TO PROVIDING ANY SUCH COMMENTS.  Notwithstanding anything to the contrary, Purchaser shall have no right to object to a Tenant Estoppel based on information disclosed by Seller or made available to Purchaser, or otherwise known by Purchaser, if (i) (x) prior to 6:00 p.m. on the Effective Date, Seller has disclosed to Purchaser in the Data Room materials which expressly and clearly confirm, or expressly and clearly support, any statement in such estoppel certificate, or (y) after 6:00 p.m. on the Effective Date, but prior to the expiration of the Evaluation Period, Seller has disclosed to Purchaser by email (sent to Tim Jones - TJones@rmcdev.com, and Richard Shea - RShea@cbshealaw.com) and by posting in the Data Room, materials that are described in such email as “DISCLOSURE MATERIALS” and which expressly and clearly confirm, or expressly and clearly support, any statement in such estoppel certificate; or (ii) Purchaser obtains actual knowledge prior to the expiration of the Evaluation Period, including, without limitation, as a result of Purchaser’s due diligence tests, investigations and inspections of the Property that expressly and clearly confirm, or expressly and clearly support, any such statement in such Tenant Estoppel.  Purchaser’s actual knowledge for all purposes of this Agreement shall be deemed to mean the actual knowledge (as opposed to constructive or imputed) of Timothy Jones and/or Jeremy M. Frank, without any independent investigation or inquiry whatsoever.

 

Tenant Estoppel” means an estoppel certificate from a Tenant (i) substantially in the form annexed hereto as Exhibit H, or (ii) otherwise substantially in the form, or limited to the substance, prescribed by or attached to such Tenant’s Lease provided that such alternative estoppel certificate does not

 

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(1) reflect a continuing material default by landlord or a material default by Tenant under the applicable Lease (unless prior to the expiration of the Evaluation Period, Seller has disclosed or made available to Purchaser information regarding such default pursuant to the standards set forth above, or Purchaser otherwise has actual knowledge of such default, subject to and as provided in the penultimate sentence of the immediately preceding paragraph) or (2) contain a material adverse discrepancy, statement or information which is clearly inconsistent with the applicable Lease or contrary to the statements provided for in the form estoppel certificate.  A Tenant Estoppel may (I) contain substantiality, knowledge and other such qualifiers, (II) delete the updated certification paragraph and add the bracketed language set forth in the form Tenant Estoppel annexed hereto as Exhibit H or (III) contain non-substantial deviations from the requested estoppel certificate or the estoppel certificate prescribed by or attached to such tenant’s lease, and Purchaser acknowledges that none of the foregoing will allow Purchaser to claim that a Tenant Estoppel is unacceptable.  Tenant Estoppels shall be dated within sixty (60) days of Closing (unless the Scheduled Closing Date has been adjourned for any reason (including a request by Purchaser for adjournment agreed to by Seller) by Purchaser).

 

In the event Seller is unable to obtain Tenant Estoppels to the extent required to be delivered as a condition to Closing pursuant to the first paragraph of this Section, Seller and/or Purchaser may, but are not obligated to, elect to extend the Scheduled Closing Date one (1) time for up to an additional thirty (30) days in order to satisfy such Tenant Estoppel condition to Closing, and if Purchaser so elects, it may deal directly with Tenants to obtain the Tenant Estoppels.  If Seller is unable to obtain a Tenant Estoppel from a Major Tenant, Purchaser shall have the option, to be exercised within two (2) Business Days prior to Closing, to amend this Agreement to remove the individual Property having the leasehold of such Major Tenant from this Agreement; however, as set forth above in this Section 7.2, Tenant Estoppels from Major Tenants (i) Montefiore Medical Center (except for its separate lease of 7,300 square feet) and (ii) Tierpoint New York LLC, are a condition to Purchaser’s obligation to close hereunder.  If Purchaser so elects to amend this Agreement, the Purchase Price shall be accordingly reduced by the Allocation for such individual Property, and the parties shall enter into an amendment to this Agreement confirming the removal of such individual Property and the applicable reduction of the Purchase Price.

 

Section 7.3                                   Ground Lessor Estoppel. It will be a condition to Purchaser’s obligation to close hereunder that Seller shall obtain from the ground lessor for each Ground Lease an estoppel certificate executed by the ground lessor (each a “Ground Lease Estoppel”), substantially in the form attached hereto as Exhibit H-1; provided, however, that the delivery by the ground lessor under the Ground Lease of an estoppel certificate limited to the form and substance required under the Ground Lease shall be deemed acceptable in lieu of the certificate in the form attached hereto as Exhibit H-1.  Ground Lease Estoppels shall be dated within sixty (60) days of Closing (unless the Scheduled Closing Date has been adjourned for any reason (including a request by Purchaser for adjournment agreed to by Seller) by Purchaser).  Seller shall not be in default of its obligations hereunder if the ground lessor fails to deliver an estoppel certificate, or delivers an estoppel certificate which is not in accordance with this Agreement.  However, if Seller is unable to obtain a Ground Lease Estoppel, Purchaser shall have the option, to be exercised within two (2) Business Days after receipt of notice of such inability to obtain such Ground Lease Estoppel, to amend this Agreement to remove the individual Property subject to the applicable Ground Lease from this Agreement and, if necessary, the Scheduled Closing Date shall be automatically extended to give Purchaser the full two (2) Business Day period to make such election.  If Purchaser so elects to amend this Agreement, the Purchase Price shall be accordingly reduced by the Allocation for such individual Property, and the parties shall enter into an amendment to this Agreement confirming the removal of such individual Property and the applicable reduction of the Purchase Price.

 

Section 7.4                                   SNDAs. (a)  It will be a condition to Purchaser’s obligation to close hereunder that Seller obtain an SNDA from the SNDA Tenants listed as “Group 1” on Exhibit P.  Purchaser shall deliver by email on or before March 5, 2019 to Seller a draft SNDA for each SNDA Tenant.  At a time selected by Seller but in any event no later than five (5) Business Days after Purchaser’s delivery of draft SNDAs for each SNDA Tenant and timely deposit with the Escrow Agent of the Additional Earnest Money Deposit

 

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pursuant to Section 4.1 above, Seller shall deliver a draft SNDA to each respective SNDA Tenant for execution.  Seller will use commercially reasonable efforts to obtain and deliver to Purchaser an SNDA from each SNDA Tenant.  Seller shall not be in default of its obligations hereunder if any SNDA Tenant fails to deliver an SNDA, or delivers an SNDA which is not in accordance with this Agreement.  Seller agrees to deliver by email (NOTING IN SUCH EMAIL THE DEEMED APPROVAL PROVISIONS OF THIS SECTION FOR PURCHASER’S FAILURE TO TIMELY RESPOND) to Purchaser (sent to Tim Jones - tjones@rmcdev.com, Sandy Spring - sspring@rmcdev.com, Jeremy Frank - jfrank@rmcdev.com, Christian Wallace - cwallace@rmcdev.com, Renee Fuller - rfuller@rmcdev.com, Richard J. Shea, Jr. — rshea@cbshealaw.com, Christopher R. Shea — cshea@cbshealaw.com, Lisa Neary — lneary@cbshealaw.com, and Alicia Davis - Alicia.Davis@cwt.com), each executed SNDA within three (3) Business Days after Seller’s receipt of the same from the applicable SNDA Tenant.  If Purchaser fails to provide comments by email (sent to Brian Primost - bprimost@mack-cali.com, Lawrence Reiss - LReiss@mack-cali.com, Susan Epstein- SEpstein@mack-cali.com, and Miles Borden - mborden@seyfarth.com) to any such executed SNDA within three (3) Business Days’ after Purchaser’s receipt thereof by an email containing the requisite deemed approval provisions described in the immediately preceding sentence, Purchaser shall be deemed to have approved and accepted such SNDA, WITH TIME BEING OF THE ESSENCE WITH RESPECT TO PROVIDING ANY SUCH COMMENTS.

 

SNDA” means a subordination, non-disturbance and attornment Agreement from an SNDA Tenant, (i) substantially in the form annexed hereto as Exhibit S, or (ii) otherwise substantially in the form, or limited to the substance, prescribed by or attached to such tenant’s lease.  An SNDA may (I) contain substantiality, knowledge and other such qualifiers, or (II) contain non-substantial deviations from or commercially reasonable comments to the requested SNDA or the SNDA prescribed by or attached to such tenant’s lease, and, subject to Purchaser’s lender’s acceptance of the SNDA (not to be unreasonably withheld, conditioned or delayed), Purchaser acknowledges that none of the foregoing will allow Purchaser to claim that an SNDA is unacceptable.

 

In the event Seller is unable to obtain an SNDA from any of the SNDA Tenants listed as “Group 1” or “Group 2” on Exhibit P, or SNDA Tenants listed as “Group 3” on Exhibit P in order to achieve the 50% threshold described below in this paragraph, Seller and/or Purchaser may, but are not obligated to, elect to extend the Scheduled Closing Date one (1) time for up to an additional thirty (30) days in order to obtain such SNDAs, and if Purchaser so elects, it may deal directly with such SNDA Tenants to obtain such SNDAs.  If Seller is unable to obtain an SNDA from an SNDA Tenant, Purchaser shall have the option, to be exercised within two (2) Business Days prior to Closing, to amend this Agreement to remove the individual Property having the leasehold of such SNDA Tenant from this Agreement; subject to the condition to Purchaser’s obligation to close hereunder that Seller obtain an SNDA from the SNDA Tenants listed as “Group 1” on Exhibit P.  If Purchaser so elects to amend this Agreement, the Purchase Price shall be accordingly reduced by the Allocation for such individual Property, and the parties shall enter into an amendment to this Agreement confirming the removal of such individual Property and the applicable reduction of the Purchase Price.  However, Purchaser shall not have such option to remove from this Agreement any individual Property having a leasehold of a “Group 3” SNDA Tenant listed on Exhibit P if Seller obtains SNDAs from such “Group 3” SNDA Tenants, and such “Group 3” SNDA Tenants under the Other PSAs, having, in the aggregate, Leases for at least fifty percent (50%) of the total square footage set forth on Exhibit P for such “Group 3” SNDA Tenants and such “Group 3” SNDA Tenants under the Other PSAs.  For avoidance of doubt, such 50% “Group 3” SNDA Tenant square footage threshold may be reached solely under this Agreement or either of the Other PSAs, or partially under this Agreement and the Other PSAs.

 

(b)                                 If requested by an SNDA Tenant, and SNDA Tenant is entitled to the same under its Lease, Purchaser shall reimburse the reasonable costs and expenses of such SNDA Tenant in connection with the negotiation, execution and delivery of an SNDA, which shall be paid by Purchaser at Closing or the termination of this Agreement, or if requested by an SNDA Tenant thereafter and SNDA Tenant is

 

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entitled to the same under its Lease, within ten (10) days after demand, and which payment obligation shall be a Closing Surviving Obligation or a Termination Surviving Obligation.

 

Section 7.5                                   Rights of First Offer; and Built-In Gain.

 

(a)                                 Seller has informed Purchaser that the parties described on Schedule 7.5 (ROFO (RM) PARTY) attached hereto and made a part hereof (collectively, the “ROFO (RM) Party”) possess certain rights of first offer (the “ROFO (RM) Rights”) and other protections to prevent the recognition of gain (the “Tax Protection Rights”) pursuant to the Contribution and Exchange Agreement (RM), including, without limitation, Section 27 of the Contribution and Exchange Agreement (RM) and Sections 1.1.1 through 1.1.9 of that certain Second Amendment to Contribution and Exchange Agreement (RM), dated June 27, 2000 (the “Second Amendment (RM)”).

 

By signing this Agreement, subject to any ROFO (RM) Exception Condition, each ROFO (RM) Party hereby, now and hereafter, as of the Effective Date, (1) permanently waives and terminates any and all of its ROFO (RM) Rights under the Contribution and Exchange Agreement (RM),  (2) agrees that such ROFO (RM) Rights under the Contribution and Exchange Agreement (RM) are hereby terminated and of no further force and effect and (3) releases Seller, MCRC, MCRLP, Purchaser, HIG, any Permitted Assignee and their respective successors and assigns from any and all obligations and liabilities (including, without limitation, any tax liabilities or other liability or payment specified in the Contribution and Exchange Agreement (RM) or otherwise available by law or equity) with respect to or in connection with the ROFO (RM) Rights under the Contribution and Exchange Agreement (RM), except for obligations or liabilities with respect to Continuing Tax Protection Rights.  At Closing Seller shall deliver to Purchaser and to the Title Company an affidavit in the form attached hereto as Exhibit R (the “ROFO (RM) Affidavit”).

 

By signing this Agreement, subject to any ROFO (RM) Exception Condition and except for the Continuing Tax Protection Rights, each ROFO (RM) Party hereby, now and hereafter, as of the Effective Date, (1) permanently waives and terminates any and all of its Tax Protection Rights under the Contribution and Exchange Agreement (RM),  (2) agrees that such Tax Protection Rights under the Contribution and Exchange Agreement (RM) are hereby terminated and of no further force and effect and (3) releases Seller, MCRC, MCRLP and their respective successors and assigns from any and all obligations and liabilities (including, without limitation, any tax liabilities or other liability or payment specified in the Contribution and Exchange Agreement (RM) or otherwise available by law or equity) with respect to or in connection with the Tax Protection Rights under the Contribution and Exchange Agreement (RM).  For purposes hereof, the “Continuing Tax Protection Rights” are as follows:

 

(i)                                     notwithstanding anything herein to the contrary, those Limited Agreements of Indemnity executed by each ROFO (RM) Party or their respective predecessors in interest (collectively, the “Indemnities”) shall, to the extent not previously terminated, continue in full force and effect after the Closing (subject to the terms and conditions of those Indemnities) and each ROFO (RM) Party shall continue to be entitled to all rights set forth in Section 1.1.6 of the Second Amendment; and

 

(ii)                                  to the extent that Seller or any of its Affiliates undertakes any Section 1031 Exchange, Seller shall not enter into any Section 1031 Exchanges for any non-LKE Properties unless all LKE Properties are the subject of one or more Section 1031 Exchanges; provided that, none of Seller, MCRC, MCRLP, their respective Affiliates or their respective successors and assigns shall have any liability to any ROFO (RM) Party if (x) Seller or any of its Affiliates elect not to pursue any such Section 1031 Exchange with respect to one or more LKE Property(ies), (y) any such Section 1031 Exchange with respect to any LKE Property fails to occur (in whole or part) or is otherwise ineffective for any reason or (z) any ROFO (RM) Party recognizes any gain as a result of clauses (x) or (y) above, or from the sale of the Personal Property associated with any such LKE Property.  However, notwithstanding the foregoing, no ROFO (RM) Party is waiving any claim arising from any LKE Properties excluded from a Section 1031 Exchange in favor of any non-LKE Properties being included in a Section 1031 Exchange.

 

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For avoidance of doubt, the waivers, terminations and releases in this Section 7.5(a) by each ROFO (RM) Party with respect to the ROFO (RM) Rights and the Tax Protection Rights under the Contribution and Exchange Agreement (RM) apply to any individual Propert(ies) that are removed from the terms of this Agreement pursuant to any provisions hereof, except if the Closing does not occur due to any ROFO (RM) Exception Condition and except for Continuing Tax Protection Rights.  The provisions of this Section 7.5(a) shall survive (i) the Closing, including a Closing as a result of Purchaser’s exercise of its specific performance rights pursuant to this Agreement or (ii) a termination of this Agreement; however, notwithstanding anything herein to the contrary, the provisions of this Section 7.5(a) shall be null and void ab initio, if the Closing does not occur due to any of the following reasons (each a, “ROFO (RM) Exception Condition”):

 

(1)                                 the termination of this Agreement due to a failure of a condition precedent to Purchaser’s obligation to close under (I) Section 9.1(a) - except due to a failure under Section 10.3(n), (o), (r) or (v), (II) Section 9.1(b) or (III) Section 9.1(c); or

 

(2)                                 the exercise of Purchaser’s right to terminate this Agreement pursuant to Article XI in the case of a Total Damage Event.

 

(b)                                 Seller has informed Purchaser that certain parties, as set forth on Schedule 7.5 (ROFO (MACK) PARTY) attached hereto and made a part hereof (collectively, the “ROFO (Mack) Party”) are the only parties that possess rights of first offer to purchase a portion of the Property (the “ROFO (Mack) Rights”) pursuant to the Mack Contribution and Exchange Agreement. Seller has further informed Purchaser that notice of the transaction contemplated hereunder has been given to the ROFO (Mack) Party in accordance with the Mack Contribution and Exchange Agreement (the “ROFO (Mack) Notice”) and that the ROFO (Mack) Party had until December 15, 2018 to exercise the ROFO (Mack) Rights. Seller hereby informs Purchaser that each the of the parties comprising the ROFO (Mack) Party has either (i) provided a written waiver of such ROFO (Mack) Rights or (ii) failed to timely exercise its ROFO (Mack) Rights in accordance with the Mack Contribution and Exchange Agreement. At Closing Seller shall deliver to Purchaser and to the Title Company an affidavit in the form attached hereto as Exhibit Q (the “ROFO (Mack) Affidavit”).  The provisions of this Section 7.5(b) will survive the Closing.

 

(c)                                  By signing this Agreement, MCRLP and MCRC agree that the provisions of Section 26.4 of the Contribution and Exchange Agreement (RM), including, without limitation, those restricting the development of Competitive Uses (as defined therein), are hereby terminated and the RM Group (as defined therein) are hereby released from any and all obligations or liabilities with respect thereto, except if the Closing does not occur due to a failure of a Section 9.2 condition precedent to Seller’s obligation to close, or the exercise of Purchaser’s right to terminate this Agreement pursuant to Article XI in the case of a Total Damage Event.  The provisions of this Section 7.5(c) will survive the Closing or the termination of this Agreement.

 

ARTICLE VIII

REPRESENTATIONS AND WARRANTIES

 

Section 8.1                                   Seller’s Representations and Warranties. The following constitute representations and warranties of Seller, which representations and warranties shall be true as of the Effective Date.  Subject to the exceptions set forth on Schedule 8.1 attached hereto and made apart hereof, and to the limitations set forth in Section 8.3, Seller represents and warrants to Purchaser the following:

 

(a)                                 Status. Seller is a limited liability company, duly organized and validly existing under the laws of the State of New York.

 

(b)                                 Authority. The execution and delivery of this Agreement and all documents to be delivered by Seller at the Closing and the performance of Seller’s obligations hereunder and under such

 

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other documents, have been or will be duly authorized by all necessary actions on the part of Seller, and this Agreement constitutes the legal, valid and binding obligation of Seller.

 

(c)                                  Non-Contravention.  The execution and delivery of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby will not violate any judgment, order, injunction, decree, regulation or ruling of any court or Authority, or conflict with, result in a breach of, or constitute a default under the organizational documents of Seller, any note or other evidence of indebtedness, any mortgage, deed of trust or indenture, or any lease, other material agreement or instrument to which Seller is a party or by which it is bound.

 

(d)                                 Suits and Proceedings.  There are no legal actions, suits or similar proceedings pending and served, or to Seller’s Knowledge, threatened in writing, against Seller or the Property which are not adequately covered by existing insurance.

 

(e)                                  Non-Foreign Entity.  Seller is not a “foreign person” or “foreign corporation” as those terms are defined in the Code and the regulations promulgated thereunder.

 

(f)                                   Tenants.  As of the date of this Agreement, the only tenants of the Real Property are tenants pursuant to the Leases set forth on the Lease Schedule annexed hereto and made a part hereof as Exhibit G.  The Documents made available to Purchaser pursuant to Section 5.2 hereof include true, correct and, in all material respects, complete copies of all of the Leases listed on Exhibit G.

 

(g)                                  Service Contracts.  The Documents made available to Purchaser pursuant to Section 5.2 hereof include true, correct and, in all material respects, complete copies of all Service Contracts listed on Exhibit F.

 

(h)                                 Leasing Commission Agreements. (i) The Leasing Commission Agreements are listed on Exhibit J, and there are no other Leasing Commission Agreements, and (ii) the Documents made available to Purchaser pursuant to Section 5.2 hereof include true, correct and, in all material respects, complete copies of the Leasing Commission Agreements

 

(i)                                     Ground LeaseWith respect to any Ground Lease:

 

(i)                                     The Ground Lease is in full force and effect and has not been modified, amended, assigned or extended;

 

(ii)                                  Seller has not received or given any written notice of Seller’s or ground lessor’s default thereunder that has not been cured;

 

(iii)                               To Seller’s Knowledge, there exists no default on the part of ground lessor under the Ground Lease;

 

(iv)                              There exists no default on the part of Seller under the Ground Lease, and Seller has not taken (or failed to take) any act which, with the giving of notice and/or the passing of time, would be a default under the Ground Lease;

 

(v)                                 Seller has made available to Purchaser true and complete copies of the Ground Lease, including all amendments, modifications and assignments thereof and ancillary documents referred to therein, which constitute the full and complete agreements between Seller and the ground lessor under the Ground Lease;

 

(vi)                              There are no delinquencies by Seller in any payments due and payable under the Ground Lease, and no base or fixed rent has been paid more than one (1) month in advance by Seller except as otherwise provided in the Ground Lease;

 

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(vii)                           There are no pending proceedings or pending claims by Seller against ground lessor under the Ground Lease for offsets against rent, or for damages or other redress, and Seller has not delivered written notice to ground lessor that Seller is disputing the amount of any rental payments due pursuant to the Ground Lease, nor, to Seller’s Knowledge, do any such claims exist;

 

(viii)                        Except as provided in the Ground Lease, no renewal, extension, expansion, termination, conversion, rights of first or last offer, rights of first or last refusal, or other future possessory rights or options have been granted to ground lessor;

 

(ix)                              Neither ground lessor nor Seller has delivered written notice of its termination of the Ground Lease or of its intention to so terminate the Ground Lease or surrender any portion of the Property currently demised under the Ground Lease (except in connection with the transaction contemplated herein);

 

(x)                                 Except for any liens granted to any existing mortgagee, Seller has not given any assignment, pledge or encumbrance of its interest in the Ground Lease;

 

(xi)                              Seller is not currently performing any alterations, and has completed any prior Seller alterations, under the Ground Lease; for avoidance of doubt, such alterations do not include any ordinary course maintenance or compliance with laws work to be performed by Seller under the Ground Lease; and

 

(xii)                           No commissions are, or will be, payable to any brokers in respect of the Ground Lease from and after Closing pursuant to any agreement to which Seller is a party or, to Seller’s Knowledge, any other agreement in respect of the Ground Lease.

 

(j)                                    Condominium Documents; Maintenance Association Documents.  The Documents made available to Purchaser pursuant to Section 5.2 hereof include true, correct and, in all material respects, complete copies of all Condominium Documents and Association Documents.  With respect to the Condominium Documents and Association Documents:

 

(i)                                     To Seller’s Knowledge, the documents are in full force and effect and have not been modified, or amended;

 

(ii)                                  Seller has not received or given any written notice of any party’s default thereunder that has not been cured;

 

(iii)                               To Seller’s Knowledge, there exists no default on the part of any other party under such documents;

 

(iv)                              There exists no default on the part of Seller under such documents and Seller has not taken (or failed to take) any act which, with the giving of notice and/or the passing of time, would be a default under the such documents; and

 

(v)                                 To Seller’s Knowledge, there are no pending proceedings or pending claims by or against the Condominium or an Association.

 

(k)                                 Insurance.  Seller currently maintains all property, liability, rental income or business interruption and other insurance policies relating to the Property or the use or occupancy thereof by Seller or any of Seller’s affiliates, and is in compliance with such limits of coverage and deductible amounts as are required under any applicable leases or mortgages, and such current insurance policies are in full force and effect.

 

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(l)                                     ERISA; Employees.  All employees at the Real Property are employees of Seller or Seller’s Affiliates.  There are no union contracts, collective bargaining agreements, pension, profit-sharing, bonus, employment contracts or other employee benefit plans, contracts or agreements relating to current or past employees of Seller or Seller’s Affiliates at the Real Property.  There is no pending or to Seller’s Knowledge, threatened attempt to organize a labor union covering employees at the Real Property.  There are not and have not been any pending or, to Seller’s Knowledge, threatened employment strikes, work stoppages, work slowdown, picketing, lockout or other material labor dispute involving the Real Property for the period Seller has owned the Real Property.  (i) Seller has not received written notice or, to Seller’s Knowledge, oral notice of any actual or alleged violations of any applicable labor and employment laws, including any applicable laws respecting labor relations, employment discrimination, disability rights or benefits, occupational health and safety, worker’s compensation, affirmative action, unemployment compensation, leaves of absence, plant closures, mass layoffs, immigration and wages and hours and (ii) there are no charges, complaints or lawsuits pending or, to Seller’s Knowledge, threatened against Seller regarding employment matters at the Real Property, and there are no Governmental Authority audits, examinations or investigations pending or threatened in writing against Seller regarding employment matters at the Real Property.  With respect to the Real Property, Seller is not required to contribute to a “multiemployer plan” as defined under ERISA in connection with the operation of the Real Property.

 

(m)                             Notices from Governmental Authorities.  To Seller’s Knowledge, Seller has not received from any governmental authority written notice of any material violation of any laws applicable (or alleged to be applicable) to the Property, or any part thereof, that has not been corrected, except as may be reflected by the Documents.

 

(n)                                       Consents.  No consent, waiver, approval or authorization is required from any person or entity (that has not already been obtained) in connection with the execution and delivery of this Agreement by Seller or the performance by Seller of the transactions contemplated hereby.

 

(o)                                       Anti-TerrorismNeither Seller, nor any officer, director, shareholder, partner, investor or member of Seller is named by any Executive Order of the United States Treasury Department as a terrorist, a “Specially Designated National and Blocked Person,” or any other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control (collectively, an “Identified Terrorist”).  Seller is not engaging in this transaction on the behalf of, either directly or indirectly, any Identified Terrorist.

 

(p)                                       Insolvency.  Seller is not subject to any pending voluntary or involuntary proceedings under any federal, state or local insolvency laws. There is no action or proceeding pending or, to Seller’s Knowledge, threatened in writing against Seller or relating to the Property, which challenges or impairs Seller’s ability to execute or perform its obligations under this Agreement or against or with respect to the Property.  Seller has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s assets, or (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets.

 

(q)                                       Conflicting Rights.  No rights of first offer, rights of first refusal, purchase options or other preemptive rights regarding the acquisition of the Property or any portion thereof or any direct or indirect ownership interest therein exist under the organizational documents of Seller or any direct or indirect owner of Seller or under any agreement by which Seller, the Property, any portion thereof or any direct or indirect owner of Seller is or may be bound or affected including, without limitation, (i) subject to Section 7.5(a), under the Contribution and Exchange Agreement (RM) and (ii) the Mack Contribution and Exchange Agreement.  The ROFO (RM) Rights and the ROFO (Mack) Rights do not run with the land and will not be binding on the Purchaser after the Closing.

 

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(r)                                          Leases; and AR Aging Report.  With respect to each Lease:  (i) to Seller’s Knowledge, each Lease is in full force and effect, and no material uncured breach or default exists on the part of the landlord or Tenant thereunder; (ii) the Tenant under each Lease has accepted possession of its leased premises in their present condition; (iii) to Seller’s Knowledge, the landlord under each of the Leases has no unfulfilled material obligation to construct, install, or repair any improvements or facilities for the Tenant under any of the Leases; (iv) except as expressly required under a Lease, no fixed or base rent (for avoidance of doubt not to include any security deposits, additional rent, percentage rent or any other type of rent) called for under any of the Leases has been paid more than one month in advance of its due date; (v) to Seller’s Knowledge, no Tenant is asserting any material claim of offset or other material defense in respect of its or the landlord’s obligations under its Lease; and (vi) to Seller’s Knowledge, no Tenant is entitled to any material concession, rebate, allowance, or period of occupancy free of rent except as set forth in its Lease.  The Accounts Receivable Aging Report attached hereto as Schedule 8.1(r) with respect to Lease rental payments is true, correct and complete as of the “run date” of such report.  To the extent Purchaser approves, or is deemed to have approved pursuant to Section 7.2, any Tenant Estoppel which contains facts inconsistent with the foregoing, this Section shall be deemed to be modified to the extent necessary to comply with the terms of such Tenant Estoppel.

 

(s)                                         Environmental Condition.  To Seller’s Knowledge, neither the Real Property nor the Improvements are currently the site of any activity that would violate, in any material respect, any past or present environmental law or regulation of any governmental body or agency having jurisdiction.

 

(t)                                          Tax Proceedings.  To Seller’s Knowledge, there are no pending tax reduction or tax certiorari proceedings pending with respect to the Real Property and Improvements.

 

(u)                                       Condemnation, Zoning.  Seller has received no written notice of and to Seller’s Knowledge there are no, (i) pending or contemplated annexation or condemnation proceedings, or private purchase in lieu thereof, affecting or which would affect the Real Property, or any part thereof, (ii) proposed or pending proceeding to change or redefine the zoning classification of all or any part of the Real Property, (iii) proposed or pending special assessments which might affect the Real Property or any portion thereof, and (iv) no proposed change(s) in any road patterns or grades with respect to the roads providing a means of ingress and egress to the Real Property.  Seller agrees to furnish Purchaser with a copy of any such notice promptly after receipt thereof.

 

(v)                                       Recorded Documents.  Seller has not received any written notice of any claim of a monetary breach or other material breach (including, but not limited to, a breach that would or could exist with the provision of notice and/or the passage of time) by Seller with respect to any covenant, restriction or other document of record to which Seller is a party or by which Seller is bound.

 

(w)                                     No Disputes.  There is no pending or, to Seller’s Knowledge, threatened judicial, municipal or administrative proceedings or investigation, or labor or other disputes affecting the Property, the operation of the Property, or in which Seller is, will or may be a party by reason of Seller’s ownership of the Property or any portion thereof, or which would affect the sale of the Property in accordance with the terms hereof.

 

(x)                                       Documents Provided.  Although Seller is not making any representation or warranty as to the truth or accuracy of any Documents, to Seller’s Knowledge, true, correct and, in all material respects, complete copies of the Documents have been provided or made available to Purchaser.

 

(y)                                       Tenant Improvement Costs and Leasing Commissions.  Schedule 10.4(e) attached hereto is a true, correct and complete schedule of tenant improvement costs and leasing commissions with respect to the Leases, subject to any contrary information set forth in any Tenant Estoppel.

 

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(z)                                  Seller’s Knowledge.  Seller represents that Dean Cingolani, and, as to Lease and leasing representations, Jeff Warner are individuals affiliated with Seller and by reason of their position, have knowledge concerning the knowledge representations and warranties by Seller made in this Agreement.  Seller’s Knowledge means the present actual (as opposed to constructive or imputed) knowledge solely of Dean Cingolani, Senior Vice President of Property Management of MCRC, the general partner of the Seller’s property manager, MCRLP, and, as to Lease and leasing representations, Jeff Warner, Senior Vice President of Leasing of MCRC, without any independent investigation or inquiry whatsoever.

 

Section 8.2                                   Purchaser’s Representations and Warranties.  Subject to the limitations set forth in Section 8.3, Purchaser represents and warrants to Seller the following:

 

(a)                                 Status. Purchaser is a duly organized and validly existing limited liability company under the laws of the State of Delaware.

 

(b)                                 Authority. The execution and delivery of this Agreement and all the documents to be delivered by Purchaser at the Closing and the performance of Purchaser’s obligations hereunder and under such other documents, have been or will be duly authorized by all necessary actions on the part of Purchaser, and this Agreement constitutes, and such other documents will at Closing constitute, the legal, valid and binding obligation of Purchaser.

 

(c)                                  Non-Contravention.  The execution and delivery of this Agreement by Purchaser and the consummation by Purchaser of the transactions contemplated hereby will not violate any judgment, order, injunction, decree, regulation or ruling of any court or Authority or conflict with, result in a breach of or constitute a default under the organizational documents of Purchaser, any note or other evidence of indebtedness, any mortgage, deed of trust or indenture, or any lease or other material agreement or instrument to which Purchaser is a party or by which it is bound.

 

(d)                                 Consents. Except for any consents binding on, or applicable to, Seller or any Property, no consent, waiver, approval or authorization is required from any person or entity (that has not already been obtained) in connection with the execution and delivery of this Agreement by Purchaser or the performance by Purchaser of the transactions contemplated hereby.

 

(e)                                  Anti-TerrorismNeither Purchaser, nor any officer, director, shareholder, partner, investor or member of Purchaser is named by any Executive Order of the United States Treasury Department as an Identified Terrorist.  Purchaser is not engaging in this transaction on the behalf of, either directly or indirectly, any Identified Terrorist.

 

Section 8.3                                   Survival of Representations and Warranties. The representations and warranties (but not covenants) of Seller and Purchaser set forth in Article VIII, and/or the documents delivered by Seller and/or Purchaser at Closing, will survive the Closing for a period of nine (9) months, after which time they will merge into the Deed. Neither Seller nor Purchaser will have any right to bring any action against the other party as a result of any untruth or inaccuracy of such representations or warranties, unless and until the aggregate amount of all liability and losses arising out of all such untruths or inaccuracies, exceeds Seven Hundred Fifty Thousand and 00/100 Dollars ($750,000.00), however, once such threshold has been satisfied Seller and Purchaser, as applicable, may bring such action with respect to the first dollar of such liability or losses (i.e, the $750,000.00 is a threshold and not a deductible). In addition, in no event will Seller’s or Purchaser’s liability for all such untruths or inaccuracies exceed, in the aggregate, the sum of Ten Million and 00/100 Dollars ($10,000,000.00). Seller shall have no liability following Closing with respect to any of such representations or warranties, if (i) (x) prior to 6:00 p.m. on the Effective Date, Seller has disclosed to Purchaser in the Data Room materials expressly and clearly confirm, or expressly and clearly contradict, or are expressly and clearly in conflict with, any such representation or warranty of Seller, or (y) after 6:00 p.m. on the Effective Date, but prior to the expiration of the Evaluation Period, Seller has disclosed to Purchaser by email (sent to Tim Jones -

 

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TJones@rmcdev.com, and Richard Shea - RShea@cbshealaw.com) and by posting in the Data Room, materials that are described in such email as “DISCLOSURE MATERIALS” and which expressly and clearly confirm, or expressly and clearly contradict, or are expressly and clearly in conflict with, any such representation or warranty of Seller; or (ii) Purchaser obtains actual knowledge prior to the expiration of the Evaluation Period, including, without limitation, as a result of Purchaser’s due diligence tests, investigations and inspections of the Property that expressly and clearly contradicts, or is expressly and clearly in conflict with, any of such Seller’s representations or warranties, or (iii) prior to 6:00 p.m., Eastern Time on the date that is two (2) Business Days prior to Closing, Seller provides notice to Purchaser that any such representation or warranty is not true and correct, and in each case, Purchaser nevertheless consummates the transaction contemplated by this Agreement. Purchaser’s actual knowledge for all purposes of this Agreement shall be deemed to mean the actual knowledge (as opposed to constructive or imputed) of Timothy Jones and/or Jeremy M. Frank, without any independent investigation or inquiry whatsoever.  The Closing Surviving Obligations and the Termination Surviving Obligations will survive Closing without limitation unless a specified period is otherwise provided in this Agreement. All other representations, warranties, covenants and agreements made or undertaken by Seller under this Agreement, unless otherwise specifically provided herein, will not survive the Closing but will be merged into the Deed and other Closing documents delivered at the Closing. Notwithstanding anything herein to the contrary, the foregoing survival and liability limitations shall not be applicable with respect to (a) any breach or default by a party, with respect to which the aggrieved party shall have its applicable rights and remedies set forth in Article XIII; (b) Seller’s liability for breach of Sections 8.1(q) or 8.1(y); and (c) Seller’s liability for breach of the Seller’s estoppel delivered pursuant to Section 10.3(y).

 

Notwithstanding anything to the contrary in this Agreement or the Other PSAs, as to the seller and the purchaser under this Agreement or the Other PSAs, respectively, the $750,000.00 floor and $10,000,000.00 cap set forth in the paragraph immediately above and the $750,000.00 floor and $10,000,00.00 cap set forth in the Other PSAs are aggregate amounts to be applied to this Agreement and the Other PSAs and may be reached solely under this Agreement or either of the Other PSAs, or partially under this Agreement and the Other PSAs, so that the aggregate floor under this Agreement and the Other PSAs is $750,000.00 and the aggregate cap under this Agreement and the Other PSAs is $10,000,000.00.

 

ARTICLE IX

CONDITIONS PRECEDENT TO CLOSING

 

Section 9.1                                   Conditions Precedent to Obligation of PurchaserThe obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which (except as provided below) may be waived by Purchaser, in its sole discretion, in writing or by proceeding to Closing:

 

(a)                                 Seller shall have delivered to Escrow Agent, Purchaser or Purchaser’s counsel, as mutually agreed to prior to Closing by Seller’s and Purchaser’s counsel, all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 10.3.

 

(b)                                 All of the representations and warranties of Seller contained (i) in this Agreement (other than Section 7.5(b) and subsections (i), (ii), (v), (viii), (ix) and (x) of Section 8.1(i)) shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the date of Closing, (ii) in Section 7.5(b) and subsections (i), (ii), (v), (viii), (ix) and (x) of Section 8.1(i) shall have been true and correct in all respects when made and shall be true and correct in all respects as of the date of Closing, with appropriate modifications permitted under this Agreement, it being understood and agreed that, subject to the obligations of Seller under Sections 7.1 above and 10.3(k) below, and the provisions of Article XI below and Article XIII below, after the expiration of the Evaluation Period, Purchaser shall assume the risk of any adverse changes at the Property, including but not limited to tenant

 

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defaults, the commencement of eviction actions in accordance with this Agreement, the receipt of violation notices, and the termination of Service Contracts in accordance with this Agreement.

 

(c)                                  Seller shall have performed and observed, in all material respects, all material covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.

 

(d)                                 Intentionally Omitted.

 

(e)                                  As of the Closing there shall not be any of the following by or against or with respect to Seller: (i) a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (ii) the appointment of a trustee or receiver of any property interest; or (iii) an assignment for the benefit of creditors.

 

(f)                                   The closing of the transactions contemplated under the Other PSAs must occur simultaneously with the Closing on the Closing Date. Notwithstanding anything to the contrary contained in this Agreement, this condition precedent cannot be waived unilaterally by Purchaser.

 

(g)                                  The lead Title Company (or Commonwealth Land Title Insurance Company, if Purchaser’s lead title company is not willing to do so), shall have irrevocably committed to issue a Title Policy with respect to the Real Property to Purchaser subject only to the Permitted Exceptions applicable thereto and, to the extent permitted under applicable law and regulations, containing affirmative coverage over the ROFO (RM) Rights, the ROFO (Mack) Rights and any other right of first offer, right of first refusal, purchase option or any other potential right with request to the Property, any portion thereof or any direct or indirect interest therein under, or with respect to, the Contribution and Exchange Agreement (RM) and/or the Mack Contribution and Exchange Agreement; provided, however, that the issuance of the Title Policy pursuant to this Section 9.1(g) shall not be a condition to Closing if Purchaser has failed to wire the premiums therefor to Escrow Agent on the Closing Date or Purchaser has failed as of Closing to satisfy all material conditions and requirements applicable to Purchaser that are imposed by the Title Company as a condition to the issuance of each such Title Policy.

 

(h)                                 Any other condition precedent to Purchaser’s obligation to close the transactions set forth in this Agreement that is expressly set forth in this Agreement.

 

(i)                                     This Agreement has not been terminated in accordance with its express terms and conditions.  Notwithstanding anything to the contrary contained in this Agreement, this condition precedent cannot be waived unilaterally by Purchaser.

 

Section 9.2                                   Conditions Precedent to Obligation of SellerThe obligation of Seller to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date (or as otherwise provided) of all of the following conditions, any or all of which (except as provided below) may be waived in writing by Seller in its sole discretion:

 

(a)                                 Escrow Agent shall have received the Purchase Price as adjusted pursuant to, and payable in the manner provided for, in this Agreement and has been irrevocably authorized by Purchaser and is committed to deliver the same to Seller.

 

(b)                                 Purchaser shall have delivered to Escrow Agent, Seller or Seller’s counsel, as mutually agreed to prior to Closing by Seller’s and Purchaser’s counsel, all of the items required to be delivered to Seller pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 10.2.

 

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(c)                                  All of the representations and warranties of Purchaser contained in this Agreement shall be true and correct in all material respects as of the date of Closing (with appropriate modifications permitted under this Agreement or not materially adverse to Seller).

 

(d)                                 Purchaser shall have performed and observed, in all material respects, all material covenants and agreements of this Agreement to be performed and observed by Purchaser as of the Closing Date.

 

(e)                                  The closing of the transactions contemplated under the Other PSAs must occur simultaneously with the Closing on the Closing Date. Notwithstanding anything to the contrary contained in this Agreement, this condition precedent cannot be waived unilaterally by Seller.

 

(f)                                   This Agreement has not been terminated in accordance with its express terms and conditions.  Notwithstanding anything to the contrary contained in this Agreement, this condition precedent cannot be waived unilaterally by Seller.

 

(g)                                  Purchaser shall have delivered to Seller, on or before March 8, 2019, a notice setting forth the names of those persons currently employed at the Real Property by Seller (or its affiliated property manager) to whom Purchaser, one of Purchaser’s Affiliates, or a third party property manager being retained by Purchaser will make an offer of employment and the compensation offered (the “Employee Notice”); and if Purchaser intends to make no such offers, the Purchaser shall so state in the Employee Notice.  Purchaser will make, or cause one of Purchaser’s Affiliates, or a third party property manager being retained by Purchaser to make, such offers of employment and employ any such employees accepting such offer as of the Closing Date.  For avoidance of doubt, any such employees will be new “at will” employees of Purchaser or Purchaser’s Affiliate(s) and neither Purchaser nor any Purchaser Affiliate will assume any accrued liabilities or other obligations of Seller or any Seller affiliate to any such employee.  Seller will defend, indemnify and hold harmless Purchaser and Purchaser’s Affiliates from and against any such claims by any such employees.

 

ARTICLE X

CLOSING

 

Section 10.1                            Closing. The consummation of the transaction contemplated by this Agreement shall take place on March 28, 2019 or such other date mutually agreed to by Seller and Purchaser (as such date may be extended pursuant to the terms and conditions of this Agreement, the “Scheduled Closing Date”), through an escrow closing at the offices of the Escrow Agent.  At Closing, the events set forth in this Article X will occur, it being understood that the performance or tender of performance of all matters set forth in this Article X are mutually concurrent conditions which may be waived in writing by the party for whose benefit they are intended.

 

Section 10.2                            Purchaser’s Closing Obligations. On the Closing Date, Purchaser, at its sole cost and expense, will deliver to Escrow Agent the following items (which shall be delivered by Escrow Agent to Seller upon Closing); provided that Seller’s and Purchaser’s respective counsel may mutually agree on the delivery of certain such items directly to Seller or Seller’s counsel:

 

(a)                                 The Purchase Price, after all adjustments, credits and prorations are made as herein provided, by Federal Reserve wire transfer of immediately available funds, in accordance with the timing and other requirements of Section 3.2;

 

(b)                                 A counterpart original of the Assignment of Lease Obligations, duly executed by Purchaser;

 

(c)                                  A counterpart original of the Assignment of Service Contracts, duly executed by Purchaser;

 

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(d)                                 A counterpart original of the Ground Lease Assignment, duly executed and acknowledged by Purchaser;

 

(e)                                  A counterpart original of the Assignment of Maintenance Declaration, duly executed by Purchaser;

 

(f)                                   Evidence reasonably satisfactory to Seller and the Title Company that the person executing the Assignment of Lease Obligations, the Assignment of Service Contracts, the Ground Lease Assignment, the Assignment of Maintenance Declaration and the Tenant Notice Letters on behalf of Purchaser has full right, power and authority to do so;

 

(g)                                  Form of written notice executed by Purchaser and to be addressed and delivered to the Tenants by Purchaser in accordance with Section 10.6 herein, acknowledging (i) the sale of the Property to Purchaser, (ii) that Purchaser has received and that Purchaser is responsible for the Security Deposit (specifying the exact amount of the Security Deposit) assigned or credited to Purchaser pursuant to this Agreement, or noting that a letter of credit Security Deposit is not transferrable and demanding replacement thereof and (iii) directing all future rent and other sums to be paid to Purchaser or whomever Purchaser shall designate (the “Tenant Notice Letters”); provided that, pursuant to Section 10.4(a)(ii), if any Letter of Credit Security Deposit is not transferrable, the applicable Tenant Notice Letter shall demand such Tenant to deposit with Purchaser a replacement cash or letter of credit security deposit;

 

(h)                                 Form of written termination, executed by Purchaser and to be addressed and delivered by Purchaser in accordance with Section 10.6 herein to the service providers under Service Contracts which Purchaser has identified to be terminated pursuant to Section 5.3(d) (the Service Contract Termination Notices);

 

(i)                                     A counterpart of the Closing Statement, duly executed by Purchaser;

 

(j)                                    A certificate, dated as of the date of Closing, stating that the representations and warranties of Purchaser contained in Section 8.2 are true and correct in all material respects as of the Closing Date (with appropriate modification permitted under this Agreement or not materially adverse to Seller);

 

(k)                                 Such executed transfer tax forms and such other documents as may be reasonably necessary or appropriate to effect the consummation of the transaction which is the subject of this Agreement including, but not limited to form TP-584 and RP-5217 and, as applicable, the City of Yonkers transfer tax form;

 

(l)                                     Intentionally Omitted; and

 

(m)                             Such other documents as may be reasonably necessary or appropriate to effect the consummation of the transaction which is the subject of this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Purchaser or result in any new or additional obligation, covenant, representation or warranty of Purchaser under this Agreement beyond those expressly set forth in this Agreement).

 

Section 10.3                            Seller’s Closing Obligations.  On the Closing Date, Seller, at its sole cost and expense, will deliver to Escrow Agent the following documents on a per Property or Properties basis as designated by Purchaser (which shall be delivered by Escrow Agent to Purchaser upon Closing); provided that Seller’s and Purchaser’s respective counsel may mutually agree on the delivery of certain such items directly to Purchaser or Purchaser’s counsel:

 

(a)                                 A bargain and sale deed without covenant against the grantor’s acts in the form attached hereto as Exhibit L (the Deed), duly executed and acknowledged by Seller, conveying to

 

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Purchaser each Fee Property and the Improvements located thereon, subject only to the Permitted Exceptions applicable thereto;

 

(b)                                 A blanket assignment and bill of sale in the form attached hereto as Exhibit D (the “Bill of Sale”), duly executed by Seller, assigning and conveying to Purchaser title to the Personal Property;

 

(c)                                  A counterpart original of an assignment and assumption of Seller’s interest, as lessor, in the Leases, Security Deposits and Leasing Commission Agreements in the form attached hereto as Exhibit C (the “Assignment of Lease Obligations”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title and interest, as lessor, in and to the Leases, Security Deposits and Leasing Commission Agreements;

 

(d)                                 A counterpart original of an assignment and assumption of all of Seller’s right, title and interest in and to the Service Contracts, but only to the extent that same are assignable, and, to the extent assignable,  the Licenses and Permits in the form attached hereto as Exhibit B (the “Assignment of Service Contracts”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title, and interest, if any, in and to the assignable Service Contracts and Licenses and Permits; provided, however, if any such assignment is subject to the re-issuance by the vendor of a replacement contract or warranty in favor of Purchaser, or confirmation that the vendor is recognizing or approving such assignment, then Seller shall be permitted to deliver such reissued contract or warranty or such confirmation after Closing in order that the contract or warranty may continue to run in favor of Seller until Closing;

 

(e)                                  A counterpart original of an assignment and assumption of the lessee’s interest in and to the Ground Lease, in recordable form and in form attached hereto as Exhibit E (the “Ground Lease Assignment”), duly executed and acknowledged by Seller, subject only to the Permitted Exceptions applicable thereto;

 

(f)                                   A counterpart original of an assignment and assumption of all of the Seller’s rights, obligations and duties under the South-West Maintenance Declaration, the Mid- West Maintenance Declaration and the Talleyrand Maintenance Declaration, as the case may be, in the form attached hereto as Exhibit K (the “Assignment of Maintenance Declaration”);

 

(g)                                  The Tenant Notice Letters, duly executed by Seller;

 

(h)                                 The Service Contract Termination Notices, duly executed by Seller;

 

(i)                                     Evidence reasonably satisfactory to Purchaser and Title Company that the person executing the documents delivered by Seller pursuant to this Section 10.3 on behalf of Seller has full right, power, and authority to do so;

 

(j)                                    A certificate in the form attached hereto as Exhibit I (“Certificate as to Foreign Status”) certifying that Seller is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended;

 

(k)                                 A certificate, dated as of the date of Closing (the “Bring-Down Certificate”), stating that the representations and warranties of Seller contained in (i) this Agreement (other than Section 7.5(b) and subsections (i), (ii), (v), (viii), (ix) and (x) of Section 8.1(i)) are true and correct in all material respects as of the Closing Date (with appropriate modifications to reflect any changes therein permitted by this Agreement) and (ii) Section 7.5(b) and subsections (i), (ii), (v), (viii), (ix) and (x) of Section 8.1(i) are true and correct in all respects as of the Closing Date (with appropriate modifications to reflect any changes therein permitted by this Agreement), or identifying any representation or warranty which no longer is true and correct and explaining the state of facts giving rise to the change.  In no event shall Seller be liable to Purchaser for, or be deemed to be in default hereunder, if any representation or warranty is no longer true and correct in all material respects (or, if applicable, in all respects), except such change with respect to

 

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Seller’s representations and warranties pursuant to Sections 8.1(a), (b), (c), (e), (n), (o) and (q), unless such change results (x) from or causes a breach of an independent express obligation or covenant of Seller under this Agreement or (y) from a material breach of any representation or warranty of Seller when made pursuant to this Agreement, in which event the provisions of Section 13.1 below shall apply. If such change does not (1) constitute or cause a breach of an independent express obligation or covenant of Seller under this Agreement, or (2) result from a breach of any representation or warranty of Seller when made by Seller pursuant to this Agreement, then, solely with respect to the post-Closing obligations and liabilities of Seller under this Agreement, Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified as of Closing by all statements made in the Bring-Down Certificate;

 

(l)                                     The Lease Schedule, updated to show any changes, dated as of no more than five (5) Business Days prior to the Closing Date and an accounts receivable report with respect to the Property, dated no earlier than five (5) Business Days prior to Closing;

 

(m)                             Such executed transfer tax forms and such other documents as may be reasonably necessary or appropriate to effect the consummation of the transaction which is the subject of this Agreement including, but not limited to form TP-584 and RP-5217 and, as applicable, the City of Yonkers transfer tax form;

 

(n)                                 the Condominium Estoppel Certificate, and, to the extent in Seller’s or its affiliates’ possession or control, the books, records and bank accounts for the Condominium;

 

(o)                                 the Association Estoppel Certificate and to the extent in Seller’s or its affiliates’ possession or control, the books, records and bank accounts for the applicable Association;

 

(p)                                 A written resignation, effective as of Closing, of any members and/or officers of the Condominium Board or the board of any Maintenance Association, affiliated with Seller or any Seller Affiliate, if any;

 

(q)                                 An Owner’s affidavit with respect to all the Real Property for the benefit of the Title Company, substantially in the form attached hereto as Exhibit M;

 

(r)                                    the Tenant Estoppels as required as a condition to close pursuant to Section 7.2, the Ground Lessor Estoppel required as a condition to close by Section 7.3 and the SNDA’s as required as a condition to close by Section 7.4.

 

(s)                                   The ROFO (Mack) Affidavit, duly executed by Seller;

 

(t)                                    Evidence of the termination of (x) Seller’s existing property management agreements for the Properties and (ii) any other agreement with respect to any Property entered into with any Seller’s Affiliate, including, without limitation, any construction, leasing, development or other similar agreements;

 

(u)                                 A counterpart of the Closing Statement, duly executed by Seller;

 

(v)                                 Certificates of title for all Motor Vehicles executed by Seller to convey title to Purchaser; provided that notwithstanding anything to the contrary in this Agreement the delivery of such certificates shall not be a condition precedent to Closing, and if not completed at Closing, such conveyances shall be completed within ten (10) Business Days after Closing;

 

(w)                               Certified copies issued by the New York Department of State of the name change and entity conversion certificates for Seller, as described in the introduction of this Agreement;

 

(x)                                 The ROFO (RM) Affidavit, duly executed by Seller;

 

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(y)                                 A Seller estoppel, in the commercially reasonable form to be agreed to by Seller and Purchaser prior to expiration of the Evaluation Period, pursuant to which Seller certifies that it is not in default of its obligations under (i) the Talleyrand Maintenance Association Documents, (ii) that certain Easement Agreement, dated August 10, 2014, with respect to the 240 White Plains Road Real Property; and (iii) that certain Shared Parking Easement Agreement, dated July 28, 2014, with respect to the 1 Executive Boulevard and 3 Executive Boulevard Real Properties pursuant to Section 10.6(b) of that agreement.  Notwithstanding the foregoing, and in lieu of such Seller estoppel, and not as a condition to Closing, Seller shall use commercially reasonable efforts to obtain such an estoppel from the requisite counterparties to such documents and easements; and

 

(z)                                  Such other documents as may be reasonably necessary or appropriate to effect the consummation of the transaction which is the subject of this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Seller or result in any new or additional obligation, covenant, representation or warranty of Seller under this Agreement beyond those expressly set forth in this Agreement).

 

Immediately after the Closing, Seller shall make available to Purchaser for pick up by Purchaser at Seller’s location where the same are presently located, to the extent in Seller’s or its property manager’s possession or control, all original (or, to the extent not available, copies of) Leases, Lease files, maintenance records, warranties, Service Contracts, Licenses and Permits, plans and specifications, certificates of occupancy, keys and other items pertaining to the Property which are being conveyed to Purchaser hereunder.

 

Section 10.4                            Prorations.

 

(a)                                 Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”):

 

(i)                                     Rental, in accordance with Section 10.4(b) below.

 

(ii)                                  Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.  The amount of any cash Security Deposits held by Seller under Leases shall be credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposits), and any Security Deposits in the form of letters of credit (collectively, the “Letters of Credit”) shall be transferred to Purchaser as set forth below.  Within three (3) Business Days after the Closing Date, Seller shall (1) deliver to the issuers of the Letters of Credit the required transfer documents in order for the issuers to process a change in the beneficiary and pay (or cause the Tenant to pay) any required transfer fee, with copies provided to Purchaser, or (2) if a Letter of Credit is not transferrable by its terms, insert in the Tenant Notice Letter to the respective Tenant demanding such Tenant to either deliver a replacement cash or letter of credit security deposit to Purchaser for the requisite security deposit pursuant to the terms and conditions of the applicable Lease, and Seller shall return such Letter of Credit to the issuer at such time Purchaser confirms to Seller that such replacement cash or letter of credit security deposit was delivered to Purchaser.  To the extent a required transfer fee for which a Tenant is responsible under its Lease is paid by Seller, Purchaser shall bill the Tenant and use commercially reasonable efforts to seek to collect such amounts on behalf of Seller after Closing; it being understood and agreed that Purchaser shall have no obligation to commence any legal action against any Tenant. To the extent that any Letter of Credit is not transferred to Purchaser at Closing, or the documents delivered to effect such transfer are not accepted by the issuer thereof, Seller shall, at Purchaser’s request and with Purchaser’s cooperation, reasonably cooperate with Purchaser as Purchaser shall reasonably request to effect such transfer. For any Letter of Credit to be transferred after Closing, until such transfer is effected: (A) at Purchaser’s instruction upon a Tenant default, Seller will draw upon the Letter of Credit and pay the

 

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proceeds to Purchaser; and (B) under no circumstances will Seller draw upon the Letter of Credit without written authorization from Purchaser. Seller agrees that after the expiration of the Evaluation Period it will not pursue any eviction action or initiate any litigation against any Tenants or apply or draw on any Security Deposits of any Tenants against the payment of rent or other default of a Tenant; provided that Seller shall give prompt notice to Purchaser for any such application or draw of Security Deposits prior to the expiration of the Evaluation Period.  Seller’s and Purchaser’s obligations under this Section 10.4(a)(ii) shall survive Closing.

 

(iii)                               Reserved.

 

(iv)                              Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges.  If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.  Final readings and final billings for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills.  Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers.

 

(v)                                 Real estate taxes and assessments due and payable for the calendar year.  If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes and assessments shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation.  If, subsequent to the Closing Date, real estate taxes and assessments (by reason of change in either assessment or rate or for any other reason other than as a result of the final determination or settlement of any tax appeal) for the Real Property and/or Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa; provided, however, that if any increase in the assessed value of the Real Property and/or Improvements results from improvements made to the Property by Purchaser, then Purchaser shall be solely responsible for any increase in taxes attributable thereto.  With respect to tax appeals, any tax refunds or credits attributable to tax years prior to the tax year in which the Closing occurs shall belong solely to Seller, regardless of whether such refunds are paid or credits are given before or after Closing.  Any tax refunds or credits attributable to the tax year in which the Closing occurs shall be apportioned between Seller and Purchaser based on their respective periods of ownership in such tax year, but only after giving effect to any tax exemption that may otherwise be available to Purchaser post-Closing.  For example, if the Purchaser is totally exempt from the payment of real estate taxes post-Closing, then Purchaser would not share in any portion of the refund or credit.  If, however, the Purchaser is only partially exempt, then the apportionment shall be based on each party’s respective percentage of the total real estate tax obligations of the Property for such tax year.  The expenses of any tax appeals for the period in which the Closing occurs shall be apportioned between the parties in the same manner as the refunds and/or credits.  The provisions of this Section 10.4(a)(v) shall survive the Closing.

 

(vi)                              The value of fuel stored at the Real Property, at Seller’s most recent cost, including taxes, on the basis of a reading made within ten (10) days prior to the Closing by Seller’s supplier.

 

(vii)                           Rents and other charges payable under the Ground Lease.

 

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(viii)                        Common charges, assessments, and other charges and expenses with respect to the Condominium due and payable pursuant to the Condominium Documents for the month in which the Closing occurs.

 

(ix)                              Charges, assessments and fees due and payable, if any, pursuant to the applicable Association Documents for the month in which the Closing occurs.

 

(x)                                 Amounts payable under the Service Contracts.  For avoidance of doubt, Purchaser shall be responsible for amounts payable during any post-Closing “tail period” under any Service Contracts which are being terminated by a Service Contract Termination Notice.  Furthermore, Seller shall be responsible for all amounts payable under the Agency Agreement which was terminated by Seller in accordance with the terms and conditions of this Agreement.

 

(xi)                              If at the time of Closing, the Real Property is affected by an assessment or assessments that are or may become payable in installments, the assessments payable on the date of or after Closing shall be payable by Purchaser, and the assessments payable prior to Closing shall be paid by Seller at or prior to Closing and any such payments by Seller or Purchaser shall be apportioned at Closing based on the customary rules and protocols of the location of each Property.

 

(xii)                           Such other items that are customarily prorated in transactions of this nature shall be ratably prorated in accordance with the customary rules and protocols of the location of each Property.

 

Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time.  The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser and Escrow Agent for review prior to the Closing Date (the “Preliminary Closing Statement”).  The Preliminary Closing Statement, once finalized, shall be signed by Purchaser, Seller and Escrow Agent, and shall be the “Closing Statement” for the transaction.  The Closing Statement may be delivered electronically.  The prorations shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing.  If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser.  No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be assigned to Purchaser.  The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months; provided, however, that the provisions of Section 10.4(a)(v) shall survive until the date that is thirty (30) days following Purchaser’s receipt of the final tax bill or the resolution of any tax appeal, whichever is later, with respect to each Property.

 

(b)                                 Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time.  After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and Purchaser shall apply such Rental as set forth below.  “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the

 

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Property. Rental is “Delinquent” when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time.  Delinquent Rental will not be prorated.  Purchaser agrees to use good faith collection procedures during the first twelve (12) full calendar months after Closing with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by any Tenant.  All sums collected by Purchaser from and after Closing from Seller and/or each Tenant in respect of Delinquent Rental, Operating Expenses, or tenant billings for work orders, special items performed or provided at the request of a Tenant or other specific services, will be applied (i) first, to amounts which are then due and payable in connection with the month in which the Closing occurred, (ii) second, to amounts which are then due and payable in connection with the month or months following Closing, and (iii) third, to amounts which are then due and payable in connection with the month or months preceding Closing.  Any sums due Seller will be promptly remitted to Seller.  Seller reserves the right to bill and collect from Tenants any Delinquent Rental for periods prior to Closing, but may not pursue any eviction actions or initiate any litigation in pursuit of such Delinquent Rents.  The provisions of this Section 10.4(b) will survive the Closing for twelve (12) months, except that the preceding sentence of this Section 10.4(b) shall survive Closing without such 12-month limitation.

 

(c)                                  At the Closing, Seller shall deliver to Purchaser a list of additional rent, however characterized, under each Lease, including without limitation, real estate taxes, electrical charges, utility costs and operating expenses (collectively, “Operating Expenses”) billed to Tenants for the calendar year in which the Closing occurs (both on a monthly basis and in the aggregate), the basis on which the monthly amounts are being billed and the amounts incurred by Seller on account of the components of Operating Expenses for such calendar year.  Upon the reconciliation by Purchaser of the Operating Expenses billed to Tenants, and the amounts actually incurred for such calendar year, Seller and Purchaser shall be liable for overpayments of Operating Expenses, and shall be entitled to payments from Tenants, as the case may be, on a pro-rata basis based upon each party’s period of ownership during such calendar year.  Seller reserves the right to bill and collect from any Tenant directly for any Operating Expenses relating to any calendar year preceding the calendar year in which Closing occurs, but may not pursue any eviction actions or initiate any litigation in pursuit of such Operating Expenses. The provisions of this Section 10.4(c) will survive the Closing for fifteen (15) months, except that the preceding sentence of this Section 10.4(c) shall survive Closing without such 15-month limitation.

 

(d)                                 With respect to specific tenant billings for work orders, special items performed or provided at the request of a Tenant or other specific services, which are collected by Purchaser after the Closing Date but relate to the foregoing specific services rendered by Seller prior to the Proration Time, then notwithstanding anything to the contrary contained herein, Purchaser shall cause amounts collected from such Tenant which are specifically earmarked to be payment for such specific services to be paid to Seller on account thereof.  The provisions of this Section 10.4(d) shall survive Closing.

 

(e)                                  Notwithstanding any provision of this Section 10.4 to the contrary, subject to Closing hereunder, Purchaser will be solely responsible for any leasing commissions, tenant improvement costs or other expenditures (collectively, “New Leasing Costs”) that are or will be incurred in connection with any (i) Lease and/or Lease amendments, renewals and/or expansions entered into during (or, if pursuant to an option, exercised during) the period commencing on January 1, 2019 and ending on the day immediately prior to the Effective Date, (ii) Lease amendments, renewals and/or expansions entered into on or after the Effective Date in accordance with Section 7.1 above, or, if pursuant to an option, exercised on or after the Effective Date, and/or (iii) new leases entered into on or after the Effective Date in accordance with Section 7.1 above.  Purchaser will pay to Seller at Closing, in addition to the Purchase Price, an amount equal to any New Leasing Costs paid by Seller.  In addition, Purchaser shall be solely responsible for any free rent, rent credit(s) and/or rent abatement(s) (1) for periods on and after the Closing provided in any Leases in existence as of the Effective Date, and (2) provided in any Leases, entered into by Seller, and approved by Purchaser, on or after the Effective Date in accordance with Section 7.1 of this Agreement.  Except as provided on Schedule 10.4(e) and subject to reduction in the case of the Leases to

 

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Montefiore Medical Center pursuant to Section 10.9(a), if applicable, Seller shall be solely responsible for and agrees to pay or discharge at or prior to Closing, or give Purchaser a credit against the Purchase Price, for any unpaid leasing commissions (including, without limitation, those payable to any Seller Affiliate or third party leasing broker or representative), tenant improvement costs, or other landlord expenditures relating to the current term of Leases (as opposed to any future extension terms) entered into on or prior to the December 31, 2018.  Furthermore, with respect to the tenant improvement costs set forth on Schedule 10.4(e), as indicated on such Schedule, Seller shall either (A) as indicated by “MCRLP Guaranty”, remain obligated after the Closing to pay such tenant improvement costs to the respective Tenant (or pay the same to Purchaser for disbursement to the respective Tenant) only if and when requested by such Tenant in accordance with the terms and conditions of its Lease, (B) as indicated by “Seller Escrow”, escrow with the Escrow Agent such tenant improvement costs for disbursement to the respective Tenant (or disbursenment to Purchaser for disbursement to the respective Tenant) only if and when requested by such Tenant in accordance with the terms and conditions of its Lease; with any undisbursed amount to be returned to Seller as each respective Tenant no longer has the right to request such tenant improvement costs pursuant to its Lease, or (C) as indicated by “Credit Purchaser”, give Purchaser a credit against the Purchase Price for such tenant improvement costs.  Furthermore, Seller shall be responsible for all amounts payable under the Agency Agreement which was terminated by Seller in accordance with the terms and conditions of this Agreement; provided that Purchaser shall be responsible for any commissions if and to the extent Purchaser retains the broker thereunder for any leasing transaction.  At Closing, the parties will equitably adjust based on projected total costs and the amounts paid by Seller as of the Closing, with a true-up post-Closing.  Schedule 10.4(e) provides an initial allocation of Seller and Purchaser responsibility for tenant improvement costs and leasing commissions included within New Leasing Costs, subject to final allocation pursuant to the Closing Statement by Seller and Purchaser prior to the Closing.  The provisions of this Section 10.4(e) shall survive Closing.

 

(f)                                   With respect to any Lease terminations exercised by a Tenant after December 31, 2018 in accordance with the terms and conditions of its Lease, Purchaser shall be entitled to receive any lease termination or similar payments received by Seller after December 31, 2018, including, without limitation, the lease termination payment received from the tenant, My Publisher.  To the extent any such payment is received by Seller prior to Closing, Purchaser shall be granted a Purchase Price credit in the amount of such payment at Closing.

 

Section 10.5                            Costs of Title Company and Closing Costs.  Costs of the Title Company and other Closing costs incurred in connection with the Closing will be allocated as follows:

 

(a)                                 Seller shall pay (i) Seller’s attorney’s fees; (ii) one-half (1/2) of any escrow fees; (iii) all realty transfer fees and taxes; and (iv) the cost of discharging any liens or Title Objections that Seller is obligated to, or has agreed to, discharge pursuant to the terms and conditions of this Agreement.

 

(b)                                 Purchaser shall pay (i) Purchaser’s attorney’s fees; (ii) the costs of Purchaser’s due diligence investigations with respect to the Property, including but not limited to the cost of the Updated Survey; (iii) the costs of recording the Deed and all other documents, except for discharges of any liens that Seller is obligated to, or has agreed to, discharge pursuant to the terms and conditions of this Agreement; (iv) all premiums and other costs in connection with obtaining the Title Policy, any mortgagee title insurance policy that Purchaser desires to obtain (the “Mortgagee Title Policy”) and any additional coverage or endorsements or deletions (including, without limitation, the deletion of the survey exception) to the Title Policy and/or Mortgagee Title Policy that are desired by Purchaser; (v)  if agreed to by Purchaser in advance in writing to Seller, any and all fees, charges, costs and expenses, including but not limited to the cost of any work, incurred in connection with transferring any warranties to Purchaser, provided that, and notwithstanding anything to the contrary in this Agreement, if Purchaser does not so agree, Seller does not have any obligation to assign or transfer any applicable warranties to Purchaser; and (vi) one-half (1/2) of any escrow fees.

 

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(c)                                  Any other costs and expenses of Closing not provided for in this Section 10.5 shall be allocated between Purchaser and Seller in accordance with the custom in the area in which the Property is located.

 

(d)                                 The provisions of this Section 10.5 shall survive Closing or the earlier termination of this Agreement.

 

Section 10.6                            Post-Closing Delivery of Tenant Notice Letters and Service Contract Terminations.  Immediately following Closing, Purchaser will deliver to (i) each Tenant a Tenant Notice Letter, as described in Section 10.2(g), and (ii) the respective service providers, a Service Contract Termination Notice, as described in Section 10.2(h).

 

Section 10.7                            Like-Kind Exchange.  Purchaser and Seller hereby acknowledge that either party may now or hereafter desire to enter into a partially or completely nontaxable exchange or exchanges (a Section 1031 Exchange) involving the Property (and/or any one or more of the properties comprising the Property) under Section 1031 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.  In connection therewith, and notwithstanding anything herein to the contrary, each party consents to the other party taking any action in furtherance of effectuating a Section 1031 Exchange, including, without limitation, assigning, or causing the assignment of, this Agreement and all of such other party’s rights hereunder with respect to any or all of the Property, and/or to convey, transfer or sell any or all of the Property, to:  (a) a “qualified intermediary” (as defined in Treasury Regulations Section 1.1031(k)-1(g)(4)(iii)) (a QI);  (b) an “exchange accommodation titleholder” (within the meaning of Revenue Procedure 2000-37, 2000-40 IRB, as may hereafter be amended or revised) (EAT);  (c)  one or more limited liability companies (LLCs) that are wholly-owned by an EAT; or (d)  one or more LLCs that are wholly-owned by such other party and/or any affiliate of such other party and thereafter assigning its interest in such LLCs to an EAT.  Each party agrees to (i) cooperate with the other party in effectuating the transactions described in (a) through (d), above, (ii) accept conveyance of any or all of the Property from a QI or an EAT or from any of the LLCs referred to in (c) or (d), above, and (iii) pay the consideration therefor to a QI or an EAT or any of the LLCs referred to in (c) or (d), above; provided, however, that (1) neither party shall be required to delay the Closing or incur any liabilities or obligations and (2) the requesting party shall pay all costs associated with such Section 1031 Exchange including reimbursing the non-requesting party for any costs that it incurs in connection therewith (other than di minimis expenses relating to reviewing and executing documents required in connection with the transaction, which shall not be reimbursed); and provided further that the requesting party shall provide whatever safeguards are reasonably requested by the non-requesting party, and not inconsistent with the requesting party’s desire to effectuate a Section 1031 Exchange involving any or all of the Property, to ensure that all of the requesting party’s obligations under this Agreement shall be satisfied in accordance with the terms thereof.  Nothing set forth in this Section shall require Purchaser or an EAT to take title to any property other than the Property from anyone other than Seller by direct deed. Purchaser and Seller acknowledge that a Section 1031 Exchange can only be accomplished on a nontaxable basis with respect to the Real Property and the Improvements and cannot be accomplished on a nontaxable basis with respect to the Personal Property.  Purchaser and Seller hereby agree that, between the date of this Agreement and the Closing Date, Seller and Purchaser will jointly prepare and agree to a schedule that lists and attributes a value to all of the Personal Property located at each individual Fee Property and/or Ground Leased Property that will be included in the sale of the Property.  The respective obligations of Seller and Purchaser under this Section 10.7 shall survive the Closing and shall not be merged therein.

 

Section 10.8                            Assignment of Existing Mortgage(s).  At Purchaser’s option, Seller shall use its commercially reasonable efforts to arrange for the holder of any existing mortgage(s), if any, on the Property to assign such mortgage(s) on the Property to Purchaser’s lender as customary in the State of New York, and to cooperate in all commercially reasonable manners in connection with such assignment.  If the holder of an existing mortgage agrees to such assignment, Purchaser shall pay the reasonable costs and

 

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expenses of the holder’s counsel in connection with the preparation of the assignment of such existing mortgage.

 

Section 10.9                            Specified Post Closing Covenants of Seller.

 

(a)                                 In the event that Montefiore Medical Center exercises its termination right (up to approximately 29,000 square feet) to reduce the size of its space (i.e., for a reduction of up to approximately 29,000 square feet) in accordance with the terms and conditions of its Lease, Seller shall make a one-time payment to Purchaser in an amount equal to $70.00 per square foot multiplied by the square footage of space actually terminated pursuant to such termination right.  Such payment shall be made in full by May 1, 2019. For clarification, there shall be no offset to such amount if Purchaser is able to later lease the space forfeited by the tenant.  Notwithstanding anything to the contrary, if a payment is to be made by Seller to Purchaser pursuant to this Section, the TI credit and the leasing commission credit owed by Seller to Purchaser regarding the Lease for Montefiore Medical Center will be reduced by, respectively, (i) in the case of the TI credit, 72.65 of the $15.00 per square foot TI credit attributable to the square feet of space actually terminated pursuant to such termination right (e.g. if 29,000 sq. ft. terminated, then 72.65 x $15.00 x 29,000 sq. ft. = $316,027.50), and (ii) in the case of the leasing commission credit, an amount equal to that portion of the leasing commission calculated in accordance with the respective leasing commission agreement on the rental attributable to the square feet of space actually terminated pursuant to such termination right.

 

(b)                                 Seller shall reimburse Purchaser for out—of-pocket costs, capped at $200,000.00, incurred by Purchaser to (i) close out any building permits with respect to the Property which remain open as of Closing, (ii) cure any outstanding violations with respect to the Property and/or (iii) otherwise address deficiencies with respect to lack of certificates of occupancy or similar approvals with respect to the Property.  Notwithstanding anything to the contrary in this Agreement or the Other PSAs, such $200,000.00 payment cap is an aggregate amount to be applied with respect to Seller under this Agreement and the seller under the Other PSAs and may be reached solely under this Agreement or either of the Other PSAs, or partially under this Agreement and the Other PSAs.

 

(c)                                  The provisions of this Section 10.9 will survive the Closing.

 

ARTICLE XI

CASUALTY AND CONDEMNATION

 

Section 11.1                            Casualty.  If, prior to the Closing Date, the Property or any portion thereof is destroyed or damaged by fire or other casualty (a “Damage Event”), Seller will promptly notify Purchaser of such Damage Event.  If there is a Material Damage Event with respect to an individual Property, Purchaser shall have the option, to be exercised within fifteen (15) days after receipt of notice of such Material Damage Event, to amend this Agreement to remove the individual Property that is the subject of the Material Damage Event from this Agreement and, if necessary, the Scheduled Closing Date shall be automatically extended to give Purchaser the full fifteen (15) day period to make such election.  If Purchaser so elects to amend this Agreement, the Purchase Price shall be accordingly reduced by the Allocation for such individual Property, and the parties shall enter into an amendment to this Agreement confirming the removal of such individual Property and the applicable reduction of the Purchase Price.  “Material Damage Event” with respect to an individual Property means a Damage Event with respect to such individual Property if: (i) the cost of restoration or repair exceeds the greater of (x) ten percent (10%) of the Allocation for such individual Property and (y) $500,000.00; (ii) the Damage Event, including any abatements of rent for a Major Tenant, is not covered by Seller’s or such Tenant’s insurance (excluding any deductible paid for by Seller or such Tenant); (iii) ingress or egress to, the parking for, or the current use and operation of such individual Property are materially and adversely affected with no viable alternative available in lieu thereof; (iv) the Damage Event causes any Major Tenant’s Lease to automatically terminate by its terms or any Major Tenant terminates its Lease in accordance with its terms because of such Damage Event or any Major Tenant has not waived in writing any right which it has, if any, to terminate its Lease because of

 

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such Damage Event unless such right is not likely to arise; or (v) the Damage Event causes any Ground Lease to automatically terminate by its terms or any ground Lessor terminates any Ground Lease in accordance with its terms because of such Damage Event or any ground lessor has not waived in writing any right which it has, if any, to terminate any Ground Lease because of such Damage Event.  In addition to the foregoing, in the event that there is a Damage Event or Damage Events with respect to the Property or any portions thereof, or the “Property” or any portion thereof under either of the Other PSAs, where the cost of restoration or repairs, in the aggregate, exceeds twenty percent (20%) of the total Purchase Price under this Agreement and the Other PSAs (a Total Damage Event), Purchaser shall have the option to be exercised within fifteen (15) days after receipt of notice of any such Damage Event, to terminate this Agreement in its entirety, and the Closing Date shall be automatically extended to give Purchaser the full fifteen (15) day period to make such election.  Upon such termination, the Earnest Money Deposit shall be returned to Purchaser, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations.  In the event of a Damage Event which is not a Material Damage Event or a Total Damage Event, or if Purchaser does not otherwise elect to remove an individual Property from the terms of this Agreement with respect to a Material Damage Event or to terminate this Agreement in the event of a Total Damage Event in accordance with the terms hereof, then (a) at Closing Seller will assign and turn over to Purchaser Seller’s insurance proceeds, including, without limitation, business interruption insurance, net of reasonable collection costs (or if such have not been awarded, all of its right, title and interest therein) payable with respect to the Damage Event (which right of Purchaser shall survive Closing), (b) Seller will not be obligated to repair such damage or destruction, and (c) the parties will proceed to Closing pursuant to the terms hereof without abatement of the Purchase Price (except for any reduction thereto by the Allocation of any individual Property that has been removed from this Agreement), except that Purchaser will receive a credit against the Purchase Price for any insurance deductible amount.  In the event Seller elects to perform any work in an effort to make the Property safe and secure after the Damage Event and to protect the Property from further damage, Seller will be entitled to deduct its reasonable costs and expenses from any amount to which Purchaser is entitled under this Section 11.1, which right shall survive the Closing.  Seller shall not settle any claim with respect to any destruction, damage, fire or Damage Event concerning the Property or any part thereof or spend any award or proceeds for repairs or restoration without obtaining Purchaser’s prior written consent in each case, which consent shall not be unreasonably withheld, conditioned or delayed.

 

Section 11.2                            Condemnation of Property.  If proceedings in eminent domain are threatened, instituted or concluded with respect to, or if any of the Authorities prior to the Closing Date indicates in writing its offer to purchase, any individual Property or any part thereof, prior to the Closing, Seller shall notify Purchaser in writing of such fact promptly after obtaining knowledge thereof.  In the event of any such threatened or actual condemnation or sale in lieu thereof with respect to any individual Property or any part thereof,  (i) where the award or the cost of restoration exceeds the greater of (x) ten percent (10%) of the Allocation for such individual Property and (y) $500,000.00, (ii) which materially and adversely affects the ingress or egress to, the parking for, or the current use and operation of the individual Property with no viable alternative available in lieu thereof,  (iii) where any Major Tenant’s Lease automatically terminates by its terms or any Major Tenant terminates its Lease in accordance with its terms because of such condemnation, or any Major Tenant has not waived in writing any right which it has, if any, to terminate its Lease because of such condemnation unless such right is not likely to arise, or (iv) where any Ground Lease automatically terminates by its terms or the ground lessor terminates any Ground Lease in accordance with its terms because of such condemnation or any ground lessor has not waived in writing any right which it has, if any, to terminate any Ground Lease because of such condemnation (each, a “Major Taking”), Purchaser will have the option, to be exercised within fifteen (15) days after receipt of notice of such Major Taking, to amend this Agreement to remove the individual Property that is the subject of such Major Taking from the Property and, if necessary, the Scheduled Closing Date shall be automatically extended to give Purchaser the full fifteen (15) day period to make such election.  If Purchaser so elects to amend this Agreement, the Purchase Price shall be accordingly reduced by the Allocation for such individual Property, and the parties shall enter into an amendment to this Agreement confirming the removal of such individual Property and the applicable reduction of the Purchase Price. In the event that

 

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either (i) any condemnation or sale in lieu of condemnation of the Property which is not a Major Taking; or (ii) Purchaser does not elect to amend this Agreement pursuant to the preceding sentence, (a) at the Closing Seller will assign and turn over to Purchaser any and all awards for and/or the proceeds of such condemnation or sale, net of reasonable collection costs (or if such have not been awarded, all of its right, title and interest therein), to the extent the same are applicable to the Property (which right of Purchaser shall survive Closing), (b) Seller will not be obligated to restore the Property, and (c) the parties will proceed to Closing pursuant to the terms hereof without abatement of the Purchase Price (except for any reduction thereto by the Allocation of any individual Property that has been removed from this Agreement).  Unless Purchaser has elected to amend this Agreement to eliminate an individual Property, Seller shall not settle any claim with respect to any condemnation, condemnation proceeding or offer concerning the Property or any part thereof or spend any award for repairs or restoration without obtaining Purchaser’s prior written consent in each case, which consent shall not be unreasonably withheld, conditioned or delayed.

 

Section 11.3                            Supersede Statute.   The provisions of this Section 11.1 and 11.2 are intended to, and for all purposes shall be deemed to, supersede and override the provisions of NY General Obligations Law Section 5-1311.

 

ARTICLE XII

CONFIDENTIALITY

 

Section 12.1                            Confidentiality. Seller and, prior to the Closing, Purchaser each expressly acknowledge and agree that the transactions contemplated by this Agreement and the terms, conditions, and negotiations concerning the same will be held in the strictest confidence by each of them and will not be disclosed by either of them except to their respective legal counsel, accountants, consultants, officers, partners, directors, and shareholders, and in the case of Purchaser, its Permitted Outside Parties, and except and only to the extent that such disclosure may be necessary for their respective performances hereunder.  Purchaser further acknowledges and agrees that, unless and until the Closing occurs, all information obtained by Purchaser in connection with the Property will not be disclosed by Purchaser to any third persons, other than Permitted Outside Parties, without the prior written consent of Seller.  Nothing contained in this Article XII will preclude or limit either party to this Agreement from disclosing or accessing any information otherwise deemed confidential under this Article XII in response to lawful process or subpoena or other valid or enforceable order of a court of competent jurisdiction or any filings with governmental authorities or filings with any national stock exchange required by reason of the transactions provided for herein pursuant to advice of counsel, or as may be otherwise required by law.  Nothing in this Article XII will negate, supersede or otherwise affect the obligations of the parties under the Right of Access and Confidentiality Agreement or Confidentiality Agreement.  In addition, prior to the Closing, any release to the public of information with respect to the sale contemplated herein or any matters set forth in this Agreement will be made only in a form approved by Purchaser and Seller and their respective counsel, which approval shall not be unreasonably withheld, conditioned or delayed. The provisions of this Section 12.1 are subject to the Section 12.2.

 

Section 12.2                            Notwithstanding anything to the contrary in Section 12.1, upon the execution of this Agreement, MCRLP and MCRC shall have the right to make such public announcements or filings as may be required by (i) the Securities Act, (ii) the Exchange Act, (iii) the rules and listing standards of the New York Stock Exchange, Inc., or (iv) any other law of a jurisdiction to which MCRLP and MCRC are subject.  MCRLP and MCRC also shall have the right to make such public announcements or filings as they may deem reasonably prudent, and shall be entitled to make such filings or announcements upon advice of counsel as may be otherwise be deemed necessary; provided that in all cases, such filings or announcements shall not include reference to HIG (other than via attachments of this Agreement or the Other PSAs to an 8-K or other regulatory filing) and shall be substantially consistent with the Form 8-K (or other regulatory filing) and related press release which Purchaser has approved prior to expiration of this Agreement.  In this connection, it should be noted that MCRC has determined that the entry into this

 

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Agreement will need to be disclosed within four (4) Business Days of its execution on a Current Report on Form 8-K under Item 1.01 thereof and that this Agreement will be filed as an exhibit thereto or be filed as an exhibit to the MCRC’s next following periodic report filed pursuant to the Exchange Act.  Purchaser acknowledges receipt and approval of a draft of such Form 8-K.

 

Section 12.3                            The provisions of this Article XII will survive the Closing or any termination of this Agreement.

 

ARTICLE XIII

REMEDIES

 

Section 13.1                            Default by Seller.  In the event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any failure of the Purchaser’s conditions to close pursuant to Section 9.1, Purchaser may, as Purchaser’s sole and exclusive remedies, if such condition failure is not cured within ten (10) Business Days’ after Purchaser’s notice to Seller expressly setting forth such condition failure, elect by notice to Seller at any time, but in no event later than twenty (20) Business Days following the Scheduled Closing Date, any of the following: (a) if such condition failure is with respect to one or more individual Property(ies) or properties under either of the Other PSAs which, in the aggregate, have an Allocation of more than $50,000,000.00, or the entire transaction contemplated by this Agreement, terminate this Agreement in its entirety in which event (i) Purchaser will receive from the Escrow Agent the Earnest Money Deposit, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, and if such condition failure is under (1) Section 9.1(a) - except due to a failure under Section 10.3(n), (o), (r) or (v), (2) Section 9.1(b) or (3) Section 9.1(c), Seller shall reimburse Purchaser for Purchaser’s Transaction Costs (which obligation of Seller shall survive the termination of this Agreement); (b) if such condition failure is applicable to one or more individual Property(ies) or properties under either of the Other PSAs which, in the aggregate, have an Allocation of less than or equal to $50,000,000.00, amend this Agreement to remove one or more such individual Property(ies) affected by such condition failure and reduce the Purchase Price by an amount equal to the Allocation for such Property(ies); (c) enforce specific performance of Seller’s obligation to close the transactions contemplated hereby in accordance with the terms hereof and to convey the Property to Purchaser (and Purchaser shall have the right to file a lis pendens against the Property in connection therewith), it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder (for clarification, in conjunction with its remedy under Section 13.1(c) hereof, Purchaser’s remedy of specific performance may be pursued with respect to all Properties not removed from this Agreement pursuant to Section 13.1(b)); or (d) waive such condition failure (except as prohibited pursuant to Section 9.1, unless agreed to by Seller) and close the transactions contemplated by this Agreement.  Purchaser expressly waives its rights to seek damages in the event of Seller’s default hereunder, except pursuant to this Section 13.1 or in connection with Seller’s willful failure to close the transactions contemplated hereby or seller under either of the Other PSAs willfully failing to close thereunder, in either which case, if specific performance is not available to Purchaser hereunder or purchaser under the Other PSAs, Purchaser shall have all available remedies available to Purchaser at law and/or in equity.  Purchaser shall be deemed to have elected (a) or (b), as applicable, above if Purchaser fails to notify Seller of its election prior to the date that is twenty (20) Business Days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies for a breach by Seller of any of the Termination Surviving Obligations. Seller and Purchaser agree that any termination of either of the Other PSAs pursuant to the default by seller provisions in such Other PSA shall automatically terminate this Agreement pursuant to the corresponding provisions of this Agreement and Purchaser shall have the right to pursue its applicable corresponding remedies with respect thereto.  For the avoidance of doubt, if any representation or warranty of Seller was true when made but thereafter, prior to Closing, shall no longer be true in any material respect as a result of circumstances outside of the reasonable control of Seller, while such change shall be a failure of a condition to Purchaser’s obligation to close, it shall not be a default by Seller.

 

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Section 13.2                            Default by Purchaser.  In the event the Closing and the consummation of the transactions contemplated herein do not occur as provided herein by reason of any default of Purchaser, Purchaser and Seller agree it would be impractical and extremely difficult to fix the damages which Seller may suffer.  Purchaser and Seller hereby agree that if Purchaser’s default is not cured within ten (10) Business Days after Seller’s notice to Purchaser expressly setting forth such default (a) an amount equal to the Earnest Money Deposit is a reasonable estimate of the total net detriment Seller would suffer in the event Purchaser defaults and fails to complete the purchase of the Property, and (b) such amount will be the full, agreed and liquidated damages for Purchaser’s default and failure to complete the purchase of the Property, and will be Seller’s sole and exclusive remedy (whether at law or in equity) for any default of Purchaser beyond the foregoing notice and cure period resulting in the failure of consummation of the Closing, whereupon this Agreement will terminate and Seller and Purchaser will have no further rights or obligations hereunder, except with respect to the Termination Surviving Obligations.  The payment of such amount as liquidated damages is not intended as a forfeiture or penalty but is intended to constitute liquidated damages to Seller. Notwithstanding the foregoing, nothing contained herein will limit Seller’s remedies at law, in equity or as herein provided in the event of a breach by Purchaser of any of the Termination Surviving Obligations. Seller and Purchaser agree that any termination of either of the Other PSAs pursuant to the default by purchaser provisions in such Other PSA shall automatically terminate this Agreement.  Notwithstanding anything herein to the contrary, Purchaser shall have the right to cure any and all Purchaser defaults by delivering all of Purchaser’s closing deliverables under and in accordance with Section 10.2 of this Agreement and otherwise being ready, willing and able to close the transactions contemplated by this Agreement on the Scheduled Closing Date.

 

ARTICLE XIV

NOTICES

 

Section 14.1                            Notices.

 

(a)                                 Except to the extent expressly provided to the contrary elsewhere in this Agreement, all notices or other communications required or permitted hereunder shall be in writing, and shall be given by any nationally recognized overnight delivery service with proof of delivery, or by e-mail (provided that such e-mail is identified as an official notice pursuant to this Section 14.1), sent to the intended addressee at the addresses or e-mail address set forth below, or to such other addresses or e-mail address or to the attention of such other persons as the addressee will have designated by written notice sent in accordance herewith. Unless changed in accordance with the preceding sentence, the addresses for notices given pursuant to this Agreement will be as follows:

 

If to Purchaser:

 

RMC Acquisition Entity, LLC

 

 

c/o Robert Martin Company, LLC

 

 

100 Clearbrook Road

 

 

Elmsford, NY 10523

 

 

Attn.: Timothy Jones

 

 

(914) 593-7915 (tele.)

 

 

E-mail: tjones@rmcdev.com

 

 

 

with a copy to:

 

Cohn Birnbaum & Shea P.C.

 

 

100 Pearl Street — 12th Floor

 

 

Hartford, CT 06103

 

 

Attn.: Richard J. Shea, Jr.

 

 

(860) 493-2230 (tele.)

 

 

E-mail: rshea@cbshealaw.com

 

 

 

with a copy to:

 

Kirkland & Ellis LLP

 

 

601 Lexington Avenue

 

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New York, NY 10022

 

 

Attn: Christopher L. Hartmann, P.C.

 

 

(212) 446-4730 (tele.)

 

 

E-mail: christopher.hartmann@kirkland.com

 

 

 

If to Seller:

 

c/o Mack-Cali Realty Corporation

 

 

Harborside 3

 

 

210 Hudson Street,

 

 

Suite 400

 

 

Jersey City, NJ 07311

 

 

Attn.: Mr. Ricardo Cardoso

 

 

(732) 590-1048 (tele.)

 

 

E-mail: Rcardoso@mack-cali.com

 

 

 

with a copy to:

 

Gary T. Wagner, Esq.

 

 

at the same address

 

 

(732) 590-1516 (tele.)

 

 

E-mail: Gwagner@mack-cali.com

 

 

 

With a copy to

 

Lawrence J. Reiss, Esq.

 

 

c/o Mack-Cali Realty Corporation

 

 

100 Clearbrook Road

 

 

Elmsford, New York 10523

 

 

(914) 593-7908 (tele.)

 

 

E-mail: Lreiss@mack-cali.com

 

 

 

And with a copy to

 

Seyfarth Shaw LLP

 

 

620 Eighth Avenue

 

 

New York, New York 10018

 

 

Attention: Miles M. Borden, Esq.

 

 

(212) 218-5266 (tele.)

 

 

E-mail: mborden@seyfarth.com

 

 

 

If to Escrow Agent:

 

First American Title Insurance Company

 

 

National Commercial Services

 

 

666Third Avenue, 5th Floor

 

 

New York, New York 10017

 

 

Attn: Anthony Moretta

 

 

(212) 850-0618 (tele.)

 

 

E-mail: amoretta@firstam.com

 

(b)                                 Notices given by (i) overnight delivery service as aforesaid shall be deemed received and effective on the first Business Day following such dispatch and (ii) e-mail as aforesaid shall be deemed given at the time and on the date of the e-mail provided same is sent prior to 6:00 p.m. Eastern Time on a Business Day (if sent later, then notice shall be deemed given on the next Business Day).  Notices may be given by counsel for the parties described above, and such notices shall be deemed given by said party for all purposes hereunder.

 

ARTICLE XV

ASSIGNMENT

 

Section 15.1                            Assignment: Binding Effect.  Purchaser shall not have the right to assign this Agreement, except as expressly provided herein. Purchaser may assign all or any portion of this Agreement,

 

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upon written notice to Seller given not less than ten (10) Business Days prior to the Closing Date, identifying the assignee or assignees, (i) (a) to any entity or entities in which RMC and/or direct or indirect equity holders in RMC owns or holds a direct or indirect economic interest of at least ten percent (10%) or (b) to a joint venture entity between one or more Purchaser’s Affiliates and an entity owned and/or controlled, directly or indirectly, by HIG or any affiliate of HIG (each such entity described in the foregoing clause (i)(a) or (i)(b), a “Permitted Assignee”), (ii) to one or more entities created and wholly owned by Purchaser or a Permitted Assignee to acquire the Property, and/or (iii) pursuant to the terms of Section 10.7 hereof. This Agreement, and the terms, covenants, and conditions herein contained, shall inure to the benefit of and be binding upon the heirs, personal representatives, successors, and assigns of each of the parties hereto, and in no event (including an assignment of this Agreement) shall Purchaser named hereunder be relieved or released from its obligations hereunder. Subject to the terms of Section 10.7, Seller shall not have the right to assign this Agreement or its rights or obligations hereunder, without first obtaining the written consent of Purchaser in its sole and absolute discretion.

 

ARTICLE XVI

BROKERAGE

 

Section 16.1                            Brokers.  If the Closing occurs, Seller agrees to pay to Holiday Fenoglio Fowler, L.P. (the “Broker”) a brokerage commission pursuant to a separate agreement by and between Seller and Broker.  Purchaser and Seller represent that they have not dealt with any brokers, finders or salesmen in connection with this transaction other than Broker, and agree to indemnify, defend and hold each other harmless from and against any and all loss, cost, damage, liability or expense, including reasonable attorneys’ fees, which either party may sustain, incur or be exposed to by reason of any claim for fees or commissions made through the other party or its affiliates. The provisions of this Article XVI will survive any Closing or termination of this Agreement.

 

ARTICLE XVII

ESCROW AGENT

 

Section 17.1                            Escrow.

 

(a)                                 Escrow Agent will hold the Earnest Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. The Earnest Money Deposit is, except as otherwise provided in this Agreement, non-refundable to Purchaser and shall be credited against the Purchase Price at the Closing. All interest earned on the Earnest Money Deposit shall become part of the Earnest Money Deposit and shall paid to the party entitled to the Earnest Money Deposit pursuant to the terms of this Agreement. In the event this Agreement is terminated for any other reason, then the Earnest Money Deposit will be disbursed by the Escrow Agent to the party entitled thereto pursuant to the applicable terms and provisions of this Agreement. In the event the Closing occurs, the Earnest Money Deposit will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Earnest Money Deposit. Escrow Agent shall not release the Earnest Money Deposit to either party until Escrow Agent has been requested in writing by Seller or Purchaser to release the Earnest Money Deposit and has given the other party written notice of such request and five (5) Business Days thereafter to dispute, or consent to, the release of the Earnest Money Deposit. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 46-2953085.  Seller represents that it is a disregarded entity as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii) (“Disregarded Entity”).  Mack-Cali Realty, L.P. (“Owner”) is the direct owner of Seller and is not a Disregarded Entity. Seller represents that Owner’s tax identification number, for purposes of reporting the interest earnings, is 22-3315804.

 

(b)                                 Escrow Agent shall not be liable to any party for any act or omission, except for Escrow Agent’s bad faith, gross negligence, willful misconduct or beach of this Agreement, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages,

 

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losses or expenses arising in connection herewith, except to the extent arising from Escrow Agent’s bad faith, gross negligence, willful misconduct or breach of this Agreement.  The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience.  In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Earnest Money Deposit, Escrow Agent shall not release and deliver the Earnest Money Deposit to either party but may either (i) continue to hold the Earnest Money Deposit until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Earnest Money Deposit with the clerk of any court of competent jurisdiction if such dispute is not resolved within ninety (90) days of notice thereof. Upon such deposit, Escrow Agent will be released from all further duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the reasonable advice of such counsel.

 

(c)                                  Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Earnest Money Deposit, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and unless Escrow Agent is indemnified to its satisfaction against the cost and expense of such defense.  Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectability of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in good faith in accordance with any written instructions given to it hereunder and believed by it in good faith to have been signed by the proper parties.

 

(d)                                 Escrow Agent acknowledges and agrees to the terms and provisions of Article IV of this Agreement.

 

(e)                                  The provisions of this Article XVII shall survive Closing or the earlier termination of this Agreement.

 

ARTICLE XVIII

MISCELLANEOUS

 

Section 18.1                            Waivers.  No waiver of any breach of any covenant or provisions contained herein will be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision contained herein.  No extension of time for performance of any obligation or act will be deemed an extension of the time for performance of any other obligation or act.

 

Section 18.2                            Recovery of Certain Fees.  In the event a party hereto files any action or suit against another party hereto by reason of any breach of any of the covenants, agreements or provisions contained in this Agreement, then in that event the prevailing party will be entitled to have and recover certain fees from the other party including all reasonable attorneys’ fees and costs resulting therefrom. For purposes of this Agreement, the term “attorneys’ fees” or “attorneys’ fees and costs” shall mean the fees and expenses of counsel to the parties hereto, which may include printing, photocopying, duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals and other persons not admitted to the bar but performing services under the supervision of an attorney, and the costs and fees incurred in connection with the enforcement or collection of any judgment obtained in any such proceeding.  The provisions of this Section 18.2 shall survive the entry of any judgment, and shall not merge, or be deemed to have merged, into any judgment.

 

Section 18.3                            Construction.  Headings at the beginning of each Article and Section are solely for the convenience of the parties and are not a part of this Agreement.  Whenever required by the context of this Agreement, the singular will include the plural and the masculine will include the feminine and vice versa.  This Agreement will not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared the same.  All exhibits and schedules referred to in this Agreement are attached and incorporated by this reference, and any capitalized term used in any exhibit or schedule which is not defined in such exhibit or schedule will have the meaning attributable to such term in the body of this

 

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Agreement. In the event the date on which Purchaser or Seller is required to take any action under the terms of this Agreement is not a Business Day, the action will be taken on the next succeeding Business Day. If more than one entity executes this Agreement as Purchaser, then each of the entities constituting Purchaser shall be jointly and severally liable for the obligations of all such entities hereunder. If more than one entity executes this Agreement as Seller, then each of the entities constituting Seller shall be jointly and severally liable for the obligations of all such entities hereunder.

 

Section 18.4                            Counterparts.  This Agreement may be executed in multiple counterparts, each of which, when assembled to include a signature for each party contemplated to sign this Agreement, will constitute a complete and fully executed Agreement.  All such fully executed counterparts will collectively constitute a single agreement.  The delivery of a copy of an executed counterpart of this Agreement via electronic means, such as e-mail, PDF, or facsimile, shall be as legally binding on the party so delivering same as the delivery of a counterpart bearing an original signature.

 

Section 18.5                            Severability.  If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all of the other conditions and provisions of this Agreement will nevertheless remain in full force and effect, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any adverse manner to either party.  Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to reflect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

 

Section 18.6                            Entire Agreement.  This Agreement, the Other PSAs, the Confidentiality Agreement, the Right of Access and Confidentiality Agreement and the Environmental Due Diligence Agreement are the final expression of, and contain the entire agreement between, the parties with respect to the subject matter hereof, and supersedes all prior understandings with respect thereto.  This Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument, signed by the party to be charged or by its agent duly authorized in writing, or except as otherwise expressly permitted herein.

 

Section 18.7                            Governing Law. THIS AGREEMENT WILL BE CONSTRUED, PERFORMED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN A STATE OR FEDERAL COURT SITTING IN THE STATE OF NEW YORK.

 

Section 18.8                            No Recording.  Subject to Section 13.1 with respect to Purchaser’s right to file a lis pendens with respect to the Property, the parties hereto agree that neither this Agreement nor any affidavit or memorandum concerning it will be recorded, and any recording of this Agreement or any such affidavit or memorandum by Purchaser or Seller will be deemed a material default by (as applicable) Purchaser or Seller hereunder.

 

Section 18.9                            Further Actions. The parties agree to execute such instructions to the Title Company and such other instruments and to do such further acts as may be reasonably necessary to carry out the provisions of this Agreement.

 

Section 18.10                     Exhibits.  The following sets forth a list of Exhibits to the Agreement:

 

Exhibit A-1                                  Legal Description of 1, 3 and 5 Westchester Plaza

Exhibit A-2                                  Legal Description of  2, 4, and 6 Westchester Plaza

 

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Exhibit A-3                                  Intentionally deleted

Exhibit A-4                                  Intentionally deleted

Exhibit A-5                                  Intentionally deleted

Exhibit A-6                                  Intentionally deleted

Exhibit A-7                                  Legal Description of 7 Westchester Plaza

Exhibit A-8                                  Legal Description of 8 Westchester Plaza

Exhibit A-9                                  Legal Description of 50 Executive Boulevard

Exhibit A-10                           Legal Description of 77 Executive Boulevard

Exhibit A-11                           Intentionally deleted

Exhibit A-12                           Legal Description of 101 Executive Boulevard

Exhibit A-13                           Legal Description of 300 Executive Boulevard

Exhibit A-14                           Legal Description of 350 Executive Boulevard

Exhibit A-15                           Legal Description of 399 Executive Boulevard

Exhibit A-16                           Legal Description of 400 and 500 Executive Boulevard

Exhibit A-17                           Intentionally deleted

Exhibit A-18                           Legal Description of 525 Executive Boulevard

Exhibit A-19                           Legal Description of 11 Clearbrook Road

Exhibit A-20                           Legal Description of 75 and 125 Clearbrook Road

Exhibit A-21                           Legal Description of 100 Clearbrook Road

Exhibit A-22                           Intentionally deleted

Exhibit A-23                           Legal Description of 150 Clearbrook Road

Exhibit A-24                           Legal Description of 175 Clearbrook Road

Exhibit A-25                           Legal Description of 200 Clearbrook Road

Exhibit A-26                           Legal Description of 250 Clearbrook Road

Exhibit A-27                           Legal Description of 1 Odell Plaza

Exhibit A-28                           Legal Description of 3 Odell Plaza

Exhibit A-29                           Legal Description of 5 and 7 Odell Plaza

Exhibit A-30                           Intentionally deleted

Exhibit A-31                           Legal Description of 1 Executive Boulevard

Exhibit A-32                           Intentionally deleted

Exhibit A-33                           Legal Description of 3 Executive Boulevard

Exhibit A-34                           Legal Description of 4 Executive Plaza

Exhibit A-35                           Legal Description of 6 Executive Plaza

Exhibit A-36                           Legal Description of 100 Corporate Boulevard

Exhibit A-37                           Legal Description of 200 Corporate Boulevard South

Exhibit A-38                           Legal Description of 225 Corporate Boulevard

Exhibit A-39                           Legal Description of 1 Skyline Drive

Exhibit A-40                           Legal Description of 2 Skyline Drive

Exhibit A-41                           Intentionally deleted

Exhibit A-42                           Legal Description of 5 Skyline Drive

Exhibit A-43                           Intentionally deleted

Exhibit A-44                           Legal Description of 7 Skyline Drive

Exhibit A-45                           Legal Description of 8 Skyline Drive

Exhibit A-46                           Intentionally deleted

Exhibit A-47                           Legal Description of 11 Skyline Drive

Exhibit A-48                           Legal Description of 12 Skyline Drive

Exhibit A-49                           Legal Description of 15 Skyline Drive

Exhibit A-50                           Legal Description of 17 Skyline Drive

Exhibit A-51                           Legal Description of 200 Saw Mill River Road

Exhibit A-52                           Legal Description of 240 White Plains Road

Exhibit B -                                      Assignment of Service Contracts

Exhibit C -                                      Assignment of Lease Obligations

Exhibit D -                                      Bill of Sale

 

62


 

Exhibit D-1 -                           Motor Vehicles

Exhibit E -                                       Ground Lease Assignment

Exhibit F -                                        Service Contracts

Exhibit G -                                      Lease Schedule

Exhibit H -                                     Tenant Estoppel

Exhibit H-1                                 Ground Lease Estoppel

Exhibit I -                                          Certificate as to Foreign Status

Exhibit J -                                          Leasing Commission Agreements

Exhibit K -                                      Assignment of Maintenance Declaration

Exhibit L -                                       Deed

Exhibit M -                                   Owner’s Affidavit

Exhibit N -                                      Association Estoppel Certificate

Exhibit O-                                         HIG Wire Instructions

Exhibit P -                                        Major Tenants and SNDA Tenants

Exhibit Q -                                      ROFO (Mack) Affidavit

Exhibit R -                                      ROFO (RM) Affidavit

Exhibit S -                                        SNDA

Exhibit T -                                       Condominium Estoppel Certificate

Schedule 1.1                           List of Property by Park; List of Fee Property and Ground Leased Property

Schedule 3.1 -                    Purchase Price Allocation

Schedule 7.5 -                    ROFO Party

Schedule 8.1 -                    Exceptions to Seller’s Representations and Warranties

Schedule 8.1(r) -                                                        Accounts Receivable Aging Report

Schedule 10.4(e) -                                               Tenant Improvement Costs and Leasing Commissions

 

Section 18.11                     No Partnership.  Notwithstanding anything to the contrary contained herein, this Agreement shall not be deemed or construed to make the parties hereto partners or joint venturers, it being the intention of the parties to merely create the relationship of Seller and Purchaser with respect to the Property to be conveyed as contemplated hereby.

 

Section 18.12                     Limitations on Benefits.  It is the explicit intention of Purchaser and Seller that no person or entity other than Purchaser, any Permitted Assignee, Seller and Seller’s Affiliates and their permitted successors and assigns is or shall be entitled to bring any action to enforce any provision of this Agreement against any of the parties hereto, and the covenants, undertakings and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, Purchaser, any Permitted Assignee, Seller and Seller’s Affiliates or their respective successors and assigns as permitted hereunder.  Except as set forth in this Section 18.12, nothing contained in this Agreement shall under any circumstances whatsoever be deemed or construed, or be interpreted, as making any third party (including, without limitation, Broker) a beneficiary of any term or provision of this Agreement or any instrument or document delivered pursuant hereto, and Purchaser and Seller expressly reject any such intent, construction or interpretation of this Agreement.

 

Section 18.13                     Discharge of ObligationsSubject to Section 18.14, the acceptance of the Deed and Ground Lease Assignment by Purchaser shall be deemed to be a full performance and discharge of every representation and warranty made by Seller herein and every agreement and obligation on the part of Seller to be performed pursuant to the provisions of this Agreement, in each case except those which are herein specifically stated to survive the Closing.

 

Section 18.14                     Survival.  The provisions of this Agreement that contemplate performance after the Closing and the obligations of the parties not fully performed at the Closing shall survive the Closing and shall not be deemed to be merged into or waived by the instruments of Closing.

 

63


 

Section 18.15                     Other PSAs.

 

(a)                                 The Closing under this Agreement and the closings under the Other PSAs shall occur simultaneously and the closings under this Agreement and the Other PSAs are each conditioned upon closing under the other;

 

(b)                                 A default by Seller under this Agreement shall be a default by the seller under the Other PSAs, and a default by the seller under either of the Other PSAs shall be a default by Seller under this Agreement, and, in either case, entitling Purchaser under this Agreement and purchaser under the Other PSAs, as applicable, to its specified remedies for a Seller default under this Agreement and a seller default under the Other PSAs; provided that such Purchaser and purchaser must pursue the same such remedy under this Agreement and the Other PSAs;

 

(c)                                  A default by Purchaser under this Agreement shall be a default by purchaser under the Other PSAs, and a default by purchaser under either of the Other PSAs shall be a default by Purchaser under this Agreement, and, in either case, entitling Seller under this Agreement and seller under the Other PSAs, as applicable, to its specified remedies for a Purchaser default under this Agreement and a purchaser default under the Other PSAs; provided that such Seller and seller must pursue the same such remedy under this Agreement and the Other PSAs;

 

(d)                                 In the event that Seller or Purchaser under this Agreement or seller or purchaser under either of the Other PSAs exercises any right to extend the Scheduled Closing Date or any other time period thereunder, then such right shall also be automatically exercised under the other agreements; and

 

(e)                                  In the event that either this Agreement or either of the Other PSAs is terminated or terminates for any reason, then the other agreement shall also automatically terminate.

 

(f)                                   In the event that either this Agreement or either of the Other PSAs is terminated or terminates for any reason and any of such agreements are reinstated or a termination notice thereunder becomes null and void, then the other agreements shall also automatically be reinstated or the termination notice thereunder shall also become null and void.

 

Section 18.16                     Non-Solicitation.  In consideration of Purchaser entering into this Agreement, and to induce Purchaser to undertake the efforts and incur the costs associated with evaluating the Property and proceeding to Closing hereunder, Seller hereby agrees not to solicit or entertain any offer from any other person to sell or otherwise transfer all or any part of the Property or any portion thereof or any direct or indirect interest therein during the term of this Agreement.

 

Section 18.17                     Amendment and Restatement.  This Agreement amends and restates in its entirety the Existing Agreement.

 

[Remainder of Page Intentionally Left Blank.

Signature blocks appear immediately on next page.]

 

64


 

IN WITNESS WHEREOF, Seller and Purchaser have respectively executed this Agreement as of the Effective Date.

 

 

PURCHASER:

 

 

 

RMC ACQUISITION ENTITY, LLC

 

 

 

By:

/s/ Timothy M. Jones

 

Name:

Timothy M. Jones

 

Title:

Member

 

65


 

IN WITNESS WHEREOF, Seller and Purchaser have respectively executed this Agreement as of the Effective Date.

 

 

SELLER:

 

 

 

MACK-CALI CW REALTY ASSOCIATES L.L.C.

 

By:

Mack-Cali Realty, L.P., its sole member

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

 

 

CROSS WESTCHESTER REALTY ASSOCIATES L.L.C.

 

By:

Mack-Cali Realty, L.P., its sole member

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

 

 

CLEARBROOK ROAD ASSOCIATES L.L.C.

 

By:

Mack-Cali Texas Property L.P., its sole member

 

By:

Mack-Cali Sub XVII, Inc., its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

 

 

SO. WESTCHESTER REALTY ASSOCIATES L.L.C.

 

By:

Mack-Cali Realty, L.P., its sole member

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

66


 

 

MACK-CALI SO. WEST REALTY ASSOCIATES L.L.C.

 

By:

Mack-Cali Realty, L.P., its sole member

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

 

 

225 CORPORATE REALTY L.L.C.

 

By:

Mack-Cali Texas Property L.P., its sole member

 

By:

Mack-Cali Sub XVII, Inc., its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

 

 

3 ODELL REALTY L.L.C.

 

By:

Mack-Cali Texas Property L.P., its sole member

 

By:

Mack-Cali Sub XVII, Inc., its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

 

 

MID- WESTCHESTER REALTY ASSOCIATES L.L.C.

 

By:

Mack-Cali Realty, L.P., its sole member

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

 

 

MACK-CALI MID- WEST REALTY ASSOCIATES L.L.C.

 

By:

Mack-Cali Realty, L.P., its sole member

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

67


 

 

SKYLINE REALTY L.L.C.

 

By:

Mack-Cali Realty, L.P., its sole member

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

 

 

12 SKYLINE ASSOCIATES L.L.C.

 

By:

Mack-Cali Realty, L.P., its sole member

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

 

 

5/6 SKYLINE REALTY L.L.C.

 

By:

Mack-Cali Realty, L.P., its sole member

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

 

 

TALLEYRAND REALTY ASSOCIATES L.L.C.

 

By:

Mack-Cali Realty, L.P., its sole member

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

68


 

MCRLP joins in this Agreement solely for purposes of agreeing to (i) be liable for Seller’s post-closing obligations under this Agreement and any Closing documents; however, subject in all respects to all of the terms, provisions and limitations on all such obligations as are set forth in this Agreement and/or any such Closing documents, and (ii) the terms and conditions of Section 7.5(c).

 

 

MACK-CALI REALTY, L.P.,

 

By:

Mack-Cali Realty Corporation, its general partner

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

MCRC joins in this Agreement solely for purposes of agreeing to the terms and conditions of Section 7.5(c).

 

 

MACK-CALI REALTY CORPORATION,

 

 

 

By:

/s/ Gary T. Wagner

 

 

Gary T. Wagner, General Counsel

 

69


 

 

As to Articles IV, X, XIII, and XVII only:

 

 

 

ESCROW AGENT:

 

 

 

 

 

FIRST AMERICAN TITLE INSURANCE COMPANY

 

 

 

By:

/s/ Antonio Moretta

 

Name:

Antonio Moretta

 

Title:

Senior Underwriting Counsel

 

70


 

 

As to Section 7.5(a) only:

 

 

 

ROFO (RM) PARTY:

 

 

 

/s/ Brad W. Berger

 

Brad W. Berger, as Trustee of the Brad W. Berger Revocable Trust

 

 

 

/s/ Greg Berger

 

Greg Berger

 

 

 

 

 

/s/ Timothy M. Jones

 

Timothy M. Jones, as Trustee of the Robert F. Weinberg 2013 Trust

 

 

 

 

 

RFW MANAGEMENT INC.,

 

a New York corporation

 

 

 

By:

/s/ Robert F. Weinberg

 

Name:

Robert F. Weinberg

 

Title:

President

 

71


 

EXHIBIT A-1 1,3AND5WESTCHEST ER PLAZA All tbat certain plot, piece or parcel of land situate, baing in tba '!'own of Creenbarqh, -county of w-tcbaatar of N-York, bowldecl and cteecri))ed as foll.OWII: lyinq and and State BBGDIIIDtG at a point clUbult SCNth 10 411 1 0010 hilt 272.23 feet tra. MoniiMint #23, located on the soutberl.y aide of HWJter Lane aa shown on a certain -P entitled, "SUbdivision Map of Cross Westchester Induatrial Perk", dated JUl.y 25, 11157 IIJU1 filed in the Westchester COUnty Clerk's ortice, Division of Land Recorda, lWqust 2P, 1967 as Kap No. 15544; THEilCB froa Mid point of beqinning alonq other ls nds now or forlllerly 1. 2. of Robert Martin North 83 39' COIIIJIInY: OO" :aa.t 317.14 feet; and oo• Jsst 288. oo teet to the -terly North 156 48• aide of w..tcbaster Plaza; TJIEilCB along the -: Solltherly on a curv. to the right bavinq a radiua of 1. 2. 485.00 teet a distenoe of 110.31 feet; and South 06 d&qreea 21' OO" BaiJt 489.41 feat to land• now or f=-rly of Westchester B.illa concSominitm; west 5155.00 f-t 'l'IIENCB alonq said laneS., SoUth 83 deqreea 39 1 0010 to land now or for118rly of Greenbarqb HOWling AUthority; 'l'HENCE alon; ••14 last mentioned lands and landa now or torMrly of YWcon ty Corp., Korth 10 degr...-491 w.at !516.87 f-t to the point of BBX;J:JmJ:a:i. BICCBPT:IIlG 'l'HEPKPW ao .uch tbareof aa -• conveyed to the Town of G:Aenbw:9h by the deed :Aeorded in I.ibo!r 6920 cp 658. 'IOGoBiBER w:rm the benefit& and S'OBJBCT '1'0 the as contained in ths Decleratian of Right of way recordecl in r.tbezo 6809 cp 2!53 and in Liber 6809 cp 201. 72

GRAPHIC

 

EXHIBIT A-2 2, 4 AND 6 WESTCHESTER PLAZA ALL that OU"tain plot , pieoe or pero.l o1: l.AUid ait.-te, lying aJII1 and state beinq in tha 'l'Oim ot G ,county o1: Weatcbeater o1: N• Yorlc boundad and ckK:ribad as followa: BBCillllfDrG at a point on the aouthu-ly aide of Eleeoutiva Boulevard M14 point o1: be¢Jin1nq bein9 4t!l,l.O f-t east o1: llorament No. 23 as a--=-! alonq the ecrutherly li.De of part of HUnter L&M aJII1 pert or Execut1vs Boulevard u llhown on Hap N1lllber 1!5!144 1 RIIJII'IllfG 'ft!BKC:JI aO\ltherly on a Ol1r'nl to tb.a ript o1: 25,00 fa.t a lanqth of 39 . :l7 r .t to a point; havinq a racliWI aa.t 217,00 feet to a 0011 RtJMII'DfG Tlll!IICB South 23 4-vreaa l.2' point/ RllJINllfG TBDCE acrose lle8Pla.za Worth 66 cieogr-48' OO" Bast 25.00 feat to a point iD. .taeater Plasa; · IUIHHDIG 'l'HERCII aoutherly we.tehenar Pl aaa on a c::arw to tha ri¢t .havi.nq a radi us of 485.00 feat a d.latanc. of 76.37 fHt to the point and p1ac. of baVJ.nni.Dv l RlJNNDJ(; THJ!IJCB through lande bel.onqi.nq to RObert Martin coapany the followinq cour.aaa and 41stancea: blat 513. !11 fHt to a point ) l,.North 83 d3t 1 0011 2. South 06 dagr-21 1 Baat 477.St taat1 and 0010 3. South 46 4!13'OO" wa.t ue.u feet to lands now or foraarly Waatchutar HUla Condoain.iUIIJ .IWICWIJf(; TIIDfCit a.lonq lan4a now c:onc1caini.UIII the followinll cCNraaa orfly Westcbaater B.i.l.l.a aDd cliJ;t&nce.s South 77 489Z'aa• 27 ' oo• ...t31.20 r. .t, aJid 1. s-th 83 d89Z'-02 •00" We8t 235.80 teatJ 2. 3. t l.3t . St0 f..t to a poiJit; South 83 degrees Jt' OO" liall Rumr.III'G TIIENCB in part along lands-of . Robert Hartin company and partly through Weat:Ciheater Plua the foll-inq two (2) courses and distances: North 06 degr-• 21' oo• wect 4ag.41 f-t: to a point:; and 1. 2 • llort:hwe&terly on a curve to tile left having a radiu. of 485.00 f-t a distance of 66.26 f-t to the point or place Of Bl!GI:NNDG, EXCAP'l'IMG 'l'flEREPJiOM ao .uch thereof u was conveyed to tbe Town of Greenburgh by D.-4 reacm:t.ed in XJ.bar 690 cp 658. . TOGETHER WITH the bena1'ita and SUBJECT '1'0 the t>Ul:'dena contained 1n Declaration of Rigbt of Way :recorded in L:lbar 680cp 253 abd lJ.her 6879 cp 436. 73

GRAPHIC

 

 

EXHIBIT A - 3

 

INTENTIONALLY DELETED

 

74


 

EXHIBIT A - 4

 

INTENTIONALLY DELETED

 

75


 

EXHIBIT A — 5

 

INTENTIONALLY DELETED

 

76


 

EXHIBIT A- 6

 

INTENTIONALLY DELETED

 

77


 

EXHIBIT A -7 7 WESTCHESTER PLAZA All that certain plot, place or parcel of land situate, lying and being in the Town of Greenburgh, County of Westchester and state of New York, bounded and described as follows: BEGINNING at a point on the southerly side of Executive Boulevard distant 1155.29 feet easterly as measured along said southerly side of Executive Boulevard and Hunter Lane from the intersection of the southerly side of Hunter Lane with the easterly side of Saw Kill River Road, which said point of beginning is also distant 258.24 feet easterly froa Monument 23 as shown on R„0. Map 15544 located on the said southerly side of Hunter Lane; RUNNING THENCE along the southerly side of Executive Boulevard, the following; courses and distances: 1.   Easterly on a curve to the left having a radius of 500,00 feet a distance of 121.73 feet to a point of tangency; 3.   North 66 degrees 4*• 00” East 165,13 feet to a point; THENCE South 23 degrees 12* 00* East 242.00 feet to a point of curve; THENCE southerly along a curve to the right having a radius of 485.00 feet a distance of 32.32 feet to a point on the center line of Westchester Plaza West; RUNNING THENCE along the center line of Westchester Plaza, South 66 degrees 43’ 00” Nest 288.17 feet to a point; THENCE South 83 degrees 39’ 00” West 80.34 feet to a point; THENCE North 06 degress 21* 00” West 277-67 feet to the point and place of BEGINNING. EXCEPTING THEREFROM so much thereof as was conveyed to the Town of Greenburgh by the deed recorded in Liber 6920 op 658. TOGETHER WITH the benefits and SUBJECT TC the burdens as contained in a Declaration of Eight of Way recorded in Liber 6809 cp 253 and Liber 6879 op 436.

GRAPHIC

 

EXHIBIT A -8 8 WESTCHESTER PLAZA Al.l tbat. c.rt&in plot, pt-or parc.l crt land aitwate, lyillq aJtd in tlle 'l'Oimor . <:oanty of We8tcbaetm: and state ot 11ev York , twtt"9 a partioo of Ja,.,a abaWn aa a certain .ap entit.lll4, •SUWJ.vieion llllp of cr-WMtcbIndwltrial Parlt in tlle Town of G:l:eeJibur9h, --Colmty,II.Y.•,mede bf Ward c:arpent.r . lJic., dat114 JUly 2!1, 15167 and fU..S in the w..t ter c:owrty Clerk '• Grfia., Divieion of Lend Recorda, on August 20 , 11167 as Jlap llo. 15544, beh'Cl-particularly bcNnded and de Cr.ihed aa follows: BBaDIJIDtO at a point on the soutbeaatarly aide of Executive Boulevard ..a.ured alld loe&t..s on 11&14 :up aa follows: .,.,FT"G at tlle corner foz 1),y tba ia1:.c'aeation of the aaat.rly aide of Saw Kill River·aoa4 and the aoutherly aida of Banter LaM aa abGwft OD Aid -p; ly ddaof amt.r x.aneand IUMRDIG tbeaoa alonc;J aai.d contiauing' along tba aoutheaat:arly aida of EXecutive lloW.-.u::d aa aaid ata:ecta are laid out on Aiel :up tbe foll-1"9 caura.. and diatucea: . 11ast 897.05 feet to a point Rartb 82 degru-1a• oo• 1. 2. ..rluld. ..Kon-m: .... 23 - aa14 aap, lklrth 82 d8grees 18' oo• :saat 244.71 feet to a point of curve, xn a northeaat.rly di.ractiaa on .a curve to tbe lett bavillq a ra.cU.taa of 1100.00 feet, a diataDce of 135.26 r-t 3. to • point of tangeftcy, . . oo• Beat 165.13 f..t to tba po1Dt 4. llarth' ' 41' or plaoa of b.qtanfmqJ ·-ly aide of J!latcu.Uve lloW...ard the folt-inq and '1'iDil«!!! fr-Aid point ofba9i.DD.i."9 and continuimq &10119 the Jtortb U degzeaa 41' Baat 2111 97 feet to a point, 1. 2. llclrtlaeaaterly - a CULve to tba rigbt, baviJig a rad:h•• of 195.00 f. t, aof 243.77 feet to a .,Oint and Jtortb 12 cta;rr_. 32' llast, a .u.tanca of 14.03 feet to • point; 3. 79

GRAPHIC

 

'.I,B.D,tfeCEr Swt.b· 6-degr. . . r21.laat 408.4 5 fe•t to a po1.nu 1 U• (a ai9htway daacru..d in line o Plua - Libcr 6879 cp 436); TBIIICI alonv tM ceJ'Itar ·Une or W..tc;bMter •1aza &u:t, south 83 4..;r••• 3'' .,..t 3.80.10 feet to a point: in ttae center li.ne or w..t.c eatu Plaaa (a IU9bt of way 4ucri-in x.1 w,r 'ao9 cp 2!13); -ter Plaza, tbAI follovino;l 'l'IIIIICI al0D9 - oeJ>ter l.1na coun• and dia-• r 1.lloly on a .,...._ to -laft bavinq a ra4iua of us.oo feat, a diaUJ>Oe of 76.37 teet to a point and 2. •orth 23 ct.greee 12 • w..t 242.0-0 fMt to 1:.-M point or place of BZGI:IIIIDIG . TOG&la&R wt!B an .. ...-.t rar riqbt ot wy ov.z-ter PU..a •• -t forth in LSNr 1809 cp 252 &DIS over 11eatcbe•t:er Pl.••• &aat U Mt: fa:rth iD I . Sbar M79 cp 4l6-.

GRAPHIC

 

EXHIBIT A -9 50 EXECUTIVE BOULEVARD all that certain plot, piece or parcel of land situate, lying and being in the town of greenburgh, country of westchester and state of new york bounded and described as follows: beginning at a point on the southerly side of hunter lane where the same is intersected by the easterly boundary line of lands now or formerly of frank and nicholas galiardi, said point being distant 897.05 feet eastearlu as measured along said southerly side of hunter lane from the intersaction of said southerly side of hunter lane with easterly side of saw mill river road; 81

GRAPHIC

 

EXHIBIT A-10 77 EXECUTIVE BOULEVARD · lUl that certain plot, piece or parcal of land situate, lyinq and bal..n!J in the orown of Creeuburqb, county of Westchester alld. State of New York, bounded and cle Crl.bad u foUows: BEGDmiNG at a point on tbe nortberly side of Executi-Bo\llevard at the southveatarly corner of •lal:l4 DOW or formerlyof one lU.verd&le Avenue De-lopent eo., Die., ae tba - ia Shown on a certain .aap entitled,•Bu.bdiviaionMap of cross Weatcbeatar Industrial Parle" filed in the Waatcbestar County clel'k 's Office, Division of Land RecOrds on AuqW!t 28, 1967 aa !lap JJo. 15544, aaid point being the followinq tvo (:1) cour&e8 llDI1 ctiat=cea troa the eaeterly and of a curve havinq a radius of 25.00 teet and an arc length of 39 27 faet which connect. the easterly aide of Clearbrook Road (fonM rly Ra.ark Park Road) with .the :nortbe.rly side of BWlter Lane, aa sbown on Filact Map No. 15544: 1.Marth 82 degrees 18' East 393.09 teet; and 2.SoDt:h 07 d.gze-29' Eut 10.00 feet; RUHIIXNG 'lHli:NCB from aaid point of beqinninq,i:n part alonq the easterly li:ne of land now or to ly of Allvaco Realty Corp. , Jforth 07 d -.o 29 1 oo• West 331. 79 r-t to pxopt!L ty of the City of NeV York; TBDCE alouq aaid propc-ty 1 North 82 deo;Jrees 32' OO" East 280.17 teet to Ot.ller land of One JU.verdale A-..n &e Dovelopaent eo., :IDe.; 'l'BEJICE alonq said land, South 07 d89X'eea 29' OO" East 275.37 feet to the northerly lof Exec:utiva Boulevard; 'l'BEJICB al ong the northerly aide of Executive Boulevard, South 66 de.,r-s 48 • OO" w-t 145.59 r-t to a point; 'l'BEIJCE on a curve to the ri9)rt bavinq a radius of deqraes 18' 450. 00 r-t, a oo• west 19.81 di.tanoe of 121.74 r..t and south 82 teat to the point of Bl!GINif.tiiC. 82

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EXHIBIT A -11

 

INTENTIONALLY DELETED

 

83


 

EXHIBIT A -ll 101EXECUTIVE BOULEVARD All that certain plot, piece or parcel of land aituate, lying and being in the Town oGreanbu.rqb, County of Weatcbaatar and State of Nev York, bounded and duc:rihe4 aa follow.: BECIIOI'DfG at a point on the nort.berly aide of Executive Boulevard, sa id point being diatant 1651.82 f-t easterly aa -•urad along said northerly aide of Executive Boulevard from the easterly side of Sav Kill River Road at the nortbeaat corner ot Parcel No. 54 aa shown on Kap #4977-B; RumnNG thane. tbrouqb lof Robert llartin C0111pany North 7 daqreee 29'OO" Weat 210.44 feet to lands of The City of N-York; RON'NING thence alonq tbe same Harth 82 de;reea J2' OO" Bast 714.71 feat to a aonuaant; RU!OIING t.bance the tolloviDCJ two courses and diat&ncee to the northerly aida of Executive Boulevard: south 1 deqraea 01' l8" Eaat 147.93 feet and South 30 d aes 23' 40" Weat 108.80 feet; RONNING thence aloDCJ the northerly aida of b:ecutive Boulevard the follovin9 couraes and diatancea: southw. terly on a curve to the lett having a radius of feet a diatance of 181.72 teat to a point; south 82 4 eea J2'OO" Weat 206.25 teat to a point of 21:1.00 curve and continuing in a veaterly direction along a curve to the left baving a radiua of 1145.00 feat a diatance of 259.50 r-t to the point and place of B!GYNNXMG. 84

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EXHIBIT A -13 300 EXECUTIVE BOULEVARD All that cartain plot, piece or parcel of land situate, lying and being in the Town of Green))urvh, Cowlty of Weatchester alWl State of New York, · hein9 a portion of lande shown on a eerblin 1118p entitled •8\lbCUvision Nap of ero.a-westchester I:ndustrial Park in the '1'-n ofGreenburgh,Westcheeterco.,If.Y.• llade by Ward carpenter Engineers, Inc., dated J\ll.y 25, 1967 and tiled in the Westchester County Clerk's Office, Division of Land Records, on August 20, 1967 as Map lfo. 15544, being more particularly bounded alWl d-cribed as foll.owa: BEGINNING at a point on the southerly side of! :E:xec:utive Boulevard distant 1921.92 feet eaaterly aa -ured a1onq the southerly side of HIUlter LIU'I4 Wld l!lxeautive Boulevard fro. the earner forli8C1 by the inter-.ction of the easterly aide of sav Mill River Road anc1 the southerly side of HUnter Lane aa shown on said 1118p; RtnfNI:NG 'l'BENCE alonq the southerly side of Executive Boulevard. as shown on the aforesaid Piled Map lfo. 15544, NOrth 82 deqrees 32' oo• East 192.22 feet to a point of curve; THENCEcontinuingalonq ' the southwesterlyaide of Executive Boulevard on a curve to the right having a radius of 225.00 feet a distance of 219.53 feat to a corner; RIJJINING 'l'BENCE in a westerly c:lirection throu9h property now or fon erly of Robert Martin Properties, Inc., South 83 deqr-39' 00" West 125.57 feet to a corner; 'l'BENCE continuing in a southerly direction through property liOW or formerl.y of Robert Martin Properties, Inc., the following three (3) COUJ:&as and distances: South 06 degrees 21' OO" Bast 4.20 feet to a point of 1. 2. 3. curve; Southerly on a curve to the rigbt havin9 a radius of 25.00 feet a di8tance of 18.92 feat to a point; and South 06 degrees 211 oo•Bast:0195.61 feet to the southeasterly c=ner of the herein clea=ihed prwaiaea and the centar line of Westchester Plaaa Bast u recited in Way recorded in the county Declarationof Right of Clerk's Of:fice, Division County, New York in Liber of Land Records, westchester 6879 cp 436; RtiNNl:NG 'l'HENCE in a weaterly dirac:tion alonq the center line of Westcheater Plua East, South 83 4aqraes 39 • OO" w.. t 248.oo feet to the southwesterly corner of tho herein desc:ribed preais-; RONNING THENCE in a northerly direction through property nov or fonerly ot Robert Martin Properties, :rnc., North 06 deqr es 21' 00" West 408 .45 feet to the afore•aid southerly side of Executive Boulevard, the point or pl.ace of BI!IGDflf'IIfG. TOGHHER WI'l'B the benefits and sua.ncr '1'0 the burd.ens aa eet forth in a Declaration of Riqht of Way recorded in Liber 6879 cp 436. TOOtrHER WITH the benefits and SOBJECT TO the burdens ae set forth in Declaration of Easements recorded in Liber 8160 cp 206. 85

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EXHIBIT A -14 350 EXECUTIVE BOULEVARD All that; certain plot, piece or parcel of land situate, lying and being in the town of Gteenburghy County of Westchester and State of New York, being a portion of lands shown on a certain nap entitled, “Subdivision «ap of cross-westChester industrial Part of the I*ovn cf Sreenburgh, Westchester bounty * N*.Y^* -Bade by Ward Carpenter Engineers, Inc. dated July 25, ±967 and filed in the «fetttchfe?t*r County clerk’s Offieey division of 1*J# itfeords on August 2R, 19£7 as Hap No. 15544, being more particularly bounded and described as follow*: BEGINNING at a point oil the southwesterly side of Executive Boulevard measured and located on said map as follows,! COMMENCING at the corner formed by the intersection *f the easterly side of say #111 Efctver Road and the southerly side of Hunter Lane as shown on said nap; RUNNING tTHEKCU along said southerly side Of Hunter. Lane and continuing along the southerly and southwesterly sides of Executive Boulevard as said streets are laid out on said map/ the following seven (7J courses and distances; 1*   North S2 degrees IS* CO* East 897,05 feat *0 « point marked as Monument No* 31 on said map; 2-  North 82  degrees 1?* 00* Bast 244.71 feet to a point of curve; 3,  m si northeasterly direction, on a curve to the left having a radius of 500.00 feet, a diefc.a*i&e of 135,26 feet to a point of tangencyj 4-   North 66 degrees 40’ 0o” £*©t 385*10 feet to a point of curve; 5»  In general easterly direction, oh a cuirve to the right having a radius of &35*oo feat, a central angle of IS degrees 44’ 00”,  a distance Of 24&,77 feet as per actual measurement and computation (243.77 feet as shown on said map) to a pOint of tangency; 6.   Wcrth 52 degrees 32’ 00* East 206T25 feet to a point Of 86 curve;

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7* In ‘southeasterly direction, on a curve to the right having a radius of 225.00 fetf a distance of 21$.53 feet to the point or plane or Jwginnln^ or the premises herein being described, which beginning point marJCH the northeasterly corner of said premises; RUNNING THENCE southerly along the westerly aid* Of Executive Boulevard; 1. On a curve to the fight having a radios of 225.00  f*Bt, a distance of 133 ??** to a point; and.. 2. Continuing along said side of Executive ^ooievard on a course South QT degrees 38” East lSl^e-feet to a” point Hhich. is the southeasterly corner of premises being described; RUNWJW OTreNcE along the center line of Westchester Pliaa East, as defined in a certain Declaration of Right of Way- recorded in Liber 6S79 of Conveyances at page 436, on a course SOrith &$degree* 39* West 177,25 feet to a point; RUNNING THENCE northwesterly on a course North Q& degrees 21» West 393,61 feet to a point of curve;    * RUNNING THENCE northerly, oh a turn to the left having a radius of 25.00 feet, a distance of 13,92 feet to a point; THENCE North 06 degrees 21*  west 4.Z& feet to a point; RUNNING THEKCE northeasterly on a course North S3 degrees 3S’ East 125*57 feet to a point an the westerly- side of Executive Boulevard to the placn of BEGINNING. TOGETHER HUH the rights derived under and SUBJECT Td the burdens Imposed by agreement creating Rights of «ay dated August 2J5r 1969 and recorded iit the Westchester County Clerk’s rifjfice* Division of liaiid Records in tlber 6879 of Conveyances at page -tlo- 87

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EXHIBIT A -15 399 EXECUTIVE BOULEVARD All tilat certain plot, piece or parcel of land sitw.t., beihq in the Town of . County of .,_tcbe8t8r of Jf., York, bounded and dMc:ri.bed - ton-: lyi.nq aDd aDd state BEGnntDIG at a pointin thanort:lwallterlyaide of Executive Boul.evard diatant 2461.44 feet easterly aDd southerly alonq the nortberly aida of Bunter Lane and in 9-.ral along tha IIOrtberly nortb8aaterly. •id-of ...,. •t.iva BouleVU'dtroathe and interaeation of tba northerly aide of Hunter LaM vith the eaaterly side of saw Mill.River Road at the northaast corner of Parcel #54 as abown on Map No.4P77-8; RUIIJIDG i'B£iiic:!l froa said point of t.Ji.Jminq, oo• Baat 379.15 feet to landa of Tba City of Morth 82 de Jr n 32 • New York; RDJOil:NC 'l'BDfCJ! along th e - : North so 4eq1 •• sa• oo• za.t 148.30 feet; and South 01 IM9r-151 OO"at 312.66 - tt to a point; 1. 2. ktlliNIMG 'l'IIBMCE tbrollqb lUida of 'l"be Robert Karti.n cewpany, SOUth 32 1 oo• w..t 468.0P feet to the eaaterly side of 82 Executive Boulevard; RDNNIIIG 'l'lll!HCE alonq said eaaterly side of Executive Bolllevard, the fol.LowiDq coursea and dis+•Dcea: Nort:bvesterly on a curve to the ri9bt bavinc) a radiua of 1. 2. 3. 225.00 feet a distance of 5. 027 feet1 . North 07 de9r-28' 0011 Weat 220. l.O feet to a point of cur.-1 and Northwesterl y on a carve to tbe left bavi.D; a 275. 00 feet a distance of 81.06 f eet to the plaa. of 'BmiiOIDIG. radias of point and 88

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EXHIBIT A -16 400 EXECUTIV E BOULEVARD All that cctain plot, piece or parcel of land ait11ata, lying ...s being in the '!'own of Gr , Cou.Dty or w.tchaater a.ncS state of )l.w 1Carlt1 ba1119 a portion of lilnds ahown on • certain Wliql entitled •8\lbdiviaion JCap of croallldu8tria1 Parlt in the '!'own oGnanbartJb, weatcbeaterco.,H.Y.• Mde by Ward <:art>-t.r J:Dgu..ra, :Inc. daJuly 25, 1967 and Ul.ed in the lfaatcb..tar COUnty· Clerk'• Mfice, Diviaion Land a.corda, on 15544, beinv 110re partiovlarly bo\J:nckd Allgut 20,1967 aa Map No. and deaaribed aa follows: BBGiliiiiNGata point on the southwesterly side of EXecutive Boulevard diat&nt 2659.23 feat (by dee4, 2657.23 feet as abown on Pilod Kap Mo. 15644 ba...S on f i eld aurvey) as --=ed in a 9enaral eut.rly anct aoatherl.y direction al0D9 the al aouther1y dote• of Bunter Lane and tha 9eneral SCNtharly ancS erly aides of Bxrocuthe Bolllevazd tlMo cormsr foraed by the interaaation of the aoutharly aide of BUDtai' Lane with the easterly aide of saw Kill ltiver lloed; TBI!IfCJ! along tbo aacthweatc:ly aide of JbeecUt:ive Boulevard , the followinq cour-and di..tanceel South 07 deqreea 28' Bast 28.44 f .t to a point of cu.rve; loutbe...terly on a curve to the left having a radius of 1.. 2. 3. 275.00 r .t a distanoe of 224.86 feet to a point; and s-th 54 d-19 llaat 116.016 t .t to landa nov or 1 f ly of BObert F. Weiftber9 aDd M&rtin s. krqar; 'l'BDCE alonq Aid landa, sov.th 3'4 d37' lamltl now or forworly of Bury and Kildred weat 6U.218 feet to Levie; 'l'RDCE alonq aaid l.and&, llorth 43 &M9rees 07' West 272,807 teet to a point andother .Properties, rnc., lanc!anov orfo lyof Robert Martin 'l'llliRC!: along aaid luc!a, the followiDg CC Urt aa and diAttanceas llorth 46 cSeqre-53' 00" last 118. 9!1 teet to a point; 1. 2. 3. w.at 477 . 59 r-t o a point; and But 291.84 feet to the po.int Worth o6 doMCJ%•-21• IIOrth 83 degr... 39 ' or plaoa of BZCJ:XNXHG. 'l"'Gkl'HER WI'l'S the benefit• ancl SUBJECT to the bllrdana as set forth in a Deolaration of Right ot Way recorded in Liber 687!1 cp 436 in Declaration of '£aa8Jient tor Parting end Right of Way reoorded in ·.LU:Ier 6962 gp 172 as UMmded in Liber 7223 c:p 693 and further a.enclad in Liller 8273 cp 1!17. 89

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EXHIBIT A -17

 

INTENTIONALLY DELETED

 

90


 

EXHIE:T A -18 525 EXECUTIVE BOULEVARD All that certain plot, piece or parcel of land situate, lying and beinq in the Town of Greenburgh, county of Westchester and State of New York., being a portion of lands shown on a certain up entitled,"Subdivision Hap of croaa-Weatchest.iar Industrial Park. of the Town of Greenburqh, WestChester .County, N.Y. " made by Ward carpenter Bnqineers,Inc., surveyors,elated July 25,1967 and filed in the Westchester County Clerk's Office, Division of Lalld Recorda on August 28, 1967 as Hap No. 15544, which said parcel ia 110re particularly boundand das=ibed, according to said -p, as follows: BEGINNING at a point on the northeasterly side of Bxe'cutive Boulevard distant 225.12 feet southeasterly as me..ured along the saae from MOnument No. 12 as shown on said map; THENCE North 82 degrees 32'Bast 468.09 feet to lands of the City of New York; THENCE along said lands, the following courses and dictancesa South 01 degree 00" West 385.94 feet to a point1 151 1. 2. south so degrees <43' 00" Weet 99.30 feat to a point; 134.40 feet to a MonWHnt south 17 degrees 46' 00" East 3. 4. No. 15; and oo• West 123.51 teet to a Konuaent south 25 deqraea 55' No. 16 on the easterly side of Executive Boulevard; THENCE alonq the general easterly and northeasterlysidu of Executive Boulevard, the followinq courses and distances: 1.Northwesterly on a curve to the lett having a radius of 275.00 feet, a distance of 385.09 feet to a point; North 54 deqreea 19' OO" Wast 231.19 feet to a point; 2. 3. Northwesterly on a curve to the right having a radius of 225.00 teet, a distance of 178.96 feet to the point or place of BEGINNING. TOGE'IBER W'I'I'B the benetite to be derived under and SUBJECT TO the burden. J..poeed by a oartai.n Ea&eaentt -d• between Robert Martin Prope.rtiu, Inc . and rirat AaU-ic:an Artificial Plovers, Inc. dated 5/16/72 and recorded 101_4/72 in Liber 7085 cp 104· TOGETHERW'I'l'H all riqbte, benefit• and eaa...nt& appurtenant thereto. 91

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EXHIBIT A-19 ll CLEARBROOK ROAD All tlult certain plot, piaoe or parcal or laJid situate, lyi119 and mbauiJb, CCIUDty of --and Stata bdnq in tiM ot C:X o: N-York, bowJ48d and d•cri.becl u rollOWIII ·B&DIMLW at a point OD the vwtaz l y aide ot Cl.. bzoolt Road diataJrt. 715.99 feet aoutbCly trca tJae· ly andot a curve baviDq a n4ius ot 25.00 faet t:be VMterly aida of Clearbrook Road with the ly ai4a ot c:raaalaMa Jtoad l 'RtliDIDIG TBIIIfc:& alODq tha ly aida following two ( 2) cour-and 4ietancu: or Cl.eerbrook lload, the dua south 417.79 raat; 1. 2. Southerly along tba arc of curve to tbe lett baviJ09 a no u-or s.o.oo faat a di.tance or 6o.:n faet; 'tKiaiC:Z atill along Claarilroolt --.1 and c::oatiDui:ftg alOIMJ liUid nov -22' :zs• te.st: 511.158 teet to or fw warly of HodiJI, South 77 de;z • point; TIIBNC:Z tha following two (2) aDd distances: 110rt11 ot d&9Z'-38 1 10• w..t 297.42 reet to a point; and North 10 d.acJrea• 39' o7• -.t: 23t.04 feet to land now or tozwarly or Haritaga CWpwata o; tmt; 1. 2. CII alon!J 4 1aat -tianad land , Jilorth 77 daqraas 25 1 10• to tha point or placa ot BIIC'lMMINoa. J!:ast 604. 41 feet OG EIBKR wrm tba ba!Mtita u aat forth iD Declaration of RiQht or Way recorded in Ltber 7256 cp 100 and Liller 7256 cp 107 IUid aa aat torth in Daclaration of rigtlt to lay pipes and ..U.tain - rec:or4e4 in x.iMJ: 7256 cp 94 IUid u aat torth iD Daclaratian or (A) Parldnq J:a-tl and (B) Iavra-a and BoJraaa Ba-t J:auatdad in Libar 7326 cp 349. 92

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EXHIBIT A-20 75 AND 125 CLEARBROOK ROAD All that certain plot, piece or parcel of land known as Parcel 3 in the Town of GreenbUrgh, Wea checter County, Nsw York, as shown on a certain map entitled, "Comprahensive Develop!llent Plan and Subdivision Plat prepared fer Heritage Corporate Park, in the Town of Greenburgh, Westchester County, New York,·sce:le·-1"-50', dated December 16, 1988, prepared by Kenneth B. Salzman, Land surveyor, filed on December ae, i9BB as Hap No.23,520", described as: BEG:INNING in the west line of Clearbrook Road at the nortb line of lands now or formerly of Rebert Martin Company, all as depicted on a certa.in map entitled:"Subdivision Map of cross Westchsster Executive Park :r:r in tbe Town of Greh, filed on September 21, 1973 as Map No.18045"; THENCE along lands now or formerly of Robert Martin COlllpany,South 77 degrees 251 10" West 604.41 feet to the east line of lands now or formerly of Swapco Associate$ at Gra urgh; · THENCE alonq the same North 12 degrees 34' So" west 230.oo feet; THENCE due West 245.00 feet·to lands now or formerly of the Town of Greenburgh, also deaicpusted as Parcel No.303-l, as depicted on a certain map filed on June 25, 1979 as Hap No. 19968; THENCE Glonq the GGmc .North 2 deqrees 281 30" West 55.00 feet, North 15 degrees 29' Parcel 2; 5411 EaGt 10.01 feet to the south line of THENCE alonq the same North 76 deqrees 03'36" East 526.59 feet to the west lien of Parcel 1; THENCE alonq the same and along the south 1ine and east line of Parcel 1, South l.3 degrees 56' 24" Ea <t 11.24 feet, North 76 deqree.s 03' 36" East 243.10 feet, due North 449.98 feet to the south line of Parce1 No. 13 as depicted on a certain map filed on May 5, 1986 as Map No.22300; THENCE alcnq the same South 72 degrees 32' 04" Bast 162.48 feet to the interse ion of a 25 foot radius curve in the west line of the aforementioned Clearbrook Road; THENCE aJ.onq said curve concave to the west throuqh a central angle of 45 degrees 57' 04" an are distance of 20.05 feet to a point of reverse curvature; · · THENCE alone; a 425.00 foot radius curve concave to the east throuqb a central angle o18 degrees 20 07" an arc distance of 136.0 feet 1 to a point of tangency; THENCE c.ontinuinq alene; the west line of Clearbrook Read due South 580.00 feet to the point of BEGINNING. 93

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EXHmrr A-21 100 CLEARBROOK ROAD All that certain plot, piece or parcal. ot: l4n4 aiuatc, 1yinv a.nc1 einq in tho Town or roenburqh, county of Westchester and state of New York,being a portion oflands shown on a certain Bll!lP entitled "Subc1ivision Map of crosa-WeetchAlater Executive Park II · in tbe Town oZ Gree b., Weatc:haater co., N-York" -de by Ward carpenter Engineers, InC., &urveyora, dated sept-••ber 215, 1972 and filed in the Westchester county Clerk's Office, Division of Land Recorcla, on SeptUlbar 21, 1973 as llap Jfo. 18045, which said parcel. iaora particularly bounded and deacribe4 as :toll0¥8: BEC;INNIJIG at a point on the eaaterly aide of ·Clearbrook Road distant southerly aa -.ured alonq Hid aallterlY cido· of Clearbrook Road, due South 18.43 feat :trom •proposed monum.nt 2• as abown on the aforaaaid aap1 RllNNING THENCE northerly along the easterly aida of Clearbrook Road, due North 18.43 feet and the followingt 1. On a curve to the riql:rt having a radiua of J!!!S3.25 feet a central. &lJ9le ot 05 degrees 22 • oo• a distance of 332.82 :teet; . on a curve to the right having a radius of 361.00 teet a cenb:al angle or: 11 degrees 18• 18" a diatanca of 71.23 2. faet1· 3, On a curve to the right having a racUus of 2!5.00 feet a central anglo of 97 degrees 27 1 02" a distance of 42 .52 feet to the aouthorly side of Gt'asslands Road! RUNNING RaBd! 1. 2. 3. 4. 'l'Hl!I'ICE easterly, alOng the southerly aide o1: Grasslands south 65 d"'9%'ees 52' 40" Ba.at 58.30 teet South 71 doqrees 38 1 50" !act ga.6B f eet; South 74 deqrees 50! 40" East 106.OJ f-t; south 07 doqrees 26 • DO" East 5,oo f-t to a aon nt and tbe westerly line of lands of the city of New York; RUNNING TII'EHCE southerly along the westerly line of lands of the City of New York, South 07 degrees 26' OO" East 309.99 feat to the southeasterly corner of the herein dasoribotd pramiMIII 94

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RUN!nNC CE weeterly through land now or fonerly of Robart llartin Properti. . , Xno., South 82 de 32 1 OO" West 355. 68 faet to the point or plaoe of BBGINNIN4. TOGE'l'lmR WITHthe benefits and SUBJECT 'l'O the burdeneot an eaeeaant for ingreas and eqr..a as aet forth in a Declaration of Right of !!e.Y recorda4 in Libar 7256 cp 100; 'l'OGE'l'ilER wr.t'H tbe loenetits and SOBJIIC1' 'l'O the burdens as set forth to :r..y Pipee and in "Declaration of Right Kaintain Same" recorded 1n Liber 72!56 cp l.20. 95

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EXHIBIT A-22

 

INTENTIONALLY DELETED

 

96


 

EXHIBIT A-23 150 CLEARBROOK ROAD All that certain plot, piece or parcel of land situate, lying and being in the Town of Greenburgh, County of Wefltchester and State of New York, being a portion of lands shown on a certain sap entitled, -subdivision Kap of Cross Westchester Executive Park II in the Town of Greenburgh, Westchester Co., H.V.”, made by ward Carpenter Engineer, Inc., surveyors, dated September 26, 1972 and filed in the Westchester county Clerk’s Office, Division of Land Records on September 21, 1973 as Map Ro. 1B045, which said parcel is more particularly bounded and described as follows: BBGUWIWG at a point on the easterly side of clearbrook Road distant southerly, as measured along said easterly aide of Clearbrook Road, due South 18-43 feet fro* “prop. Hon, 2” as shown on the aforesaid sap; HUNHIHG TS£HC£ easterly from said point of beginning through lands of Robert Martin Company, Worth 82 degrees 32’ oo- East 355.6ft r«t to the northeasterly corner of the herein described premises and the westerly line of lands of the City of Rev York; RONNIHG THENCE southerly along the westerly line of lands of the city of Hew York: l. 2, 3. 4. South 07 degrees 26’ 00” East 104.96 feet? south 12 degrees 32’ 00* East 27.70 feet; south 07 degrees 30’ 00” East 76.70 feet? South 07 degrees 19*  00” East 252.06 feet to the southeasterly comer of the herein described premises? RDHHINC THEHCE westorly through lands of Robert hart in Company, South 82 degrees 32’ 00- West 417.90 feet to the southwesterly comer of the herein described premises and the easterly side of Clearbrook Road; RUNHIHG THEHCE along the easterly side of Clearbrook Road, due North 465.28 feet to the northwesterly corner of the herein described premises and the point or place of BEGIMWIHG,

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EXHIBIT A-24 175 CLEARBROOK ROAD All tlult certain plot, piaoe or parcal or laJid situate, lyi119 and mbauiJb, CCIUDty ot W..tcm..tar and Stata bd nq in tiM ot C:X or N-York, bowJ48d and d•cri.becl u rollOWIIa ·B&DIMLW at a point OD the vwtaz l y aide ot Cl.. bzoolt Road ot aencdurve diataJrt. 715.99 teet aoutbCly b:ca tJae· l baviDq a n4ius ot 25.00 f..t:t:be VMterly aida of Clearbrook Road with the ly ai4e ot c:raaal•M• Jtoad l 'RtliDIDIG TBIIIfe& alODq tba ly aida tollovillg two ( 2) cour-and 4ietancu: or Cl.eerbrook lload, the due south 417.79 raat; 1. 2. Southerly along tba arc of curve to tbe lett baviJ09 a no u-of s.o.oo faat a di.tance or 6o.:n r..t:; 'tKiaiC:Z atill along Clearilroolt --.1 and c::oatiDui:ftg alOIMJ liUid nov -22' :zs• te.st: 511.158 teet to or fw warly of HodiJI, South 77 de;z • point; TIIBNC:Z tha following two (2) aDd distances: 1.IIO&tb ot 1 10• w..t 297.42 reet to a point; and d&9Z'-38 2. North 10 d.acJrea• 39 1 o7• -.t: 23t.04 feet to land now or fozwarly or Haritaga CWpwatao; tmt; CII alon!J J!:ast 604. 41 feet 1a at -tianad land , Jilorth 77 daqraas 25 1 10• to tba point or placa ot BIIC'lMMINoa. OGEIBKRwrm tba baJMfita u aat forth iD Declaration of RiQ1rt of Way recorded in Ltber 7256 cp 100 and Liller 7256 cp 107 IUid aa aat forth in Daclaration of rigtlt to lay pipes and ..U.tain - rec:or4e4 in x.iMJ: 7256 cp 94 IUid u aat torth iD Daclaratian or (A) Parldnq J:a-tl and (B) Iavra-a and BoJraaa Ba-t J:auatdad in Libar 7326 cp 349. 98

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EXHIBIT A-25 200 CLEARBROOK ROAD All that certain plat, piece or parcel of land situate, lying and being in the Town of Greenburgh, County of Westchester and state of New York, bounded and described as follow? BEGINNING at a point in the easterly side of ciearbrook Road distant 899.45 feet northerly fro* the northerly end of a curve having a radius of £5.00 feet which curve connects the easterly Bide of clearbrook Head with the northerly side of Hunter Lane? kumnNG THENCE along the easterly side of ciearhroolc Road, the following four [4) courses and distances: 1. worth 10 degrees is(1) DO” West 129*66 feet; 2. South 77 degrees 22’ 23” West  3.49 feet; 3. Northerly along the arc of a curve to the right having a radius of 490,00 feet a distance of 49.23 feet; 4. due North 285.51 feet; THENCE along other lands of Robert Hart in Company, North 82 degrees 32t opff East 417-90 feet to land of the City of New York? THENCE along the last mentioned land, south 07 degrees 19’ 00” EaBt 461.34 feet to other property of Robert Hartin Conpany; •THENCE along the sane. South 83 degrees 32* 00” West 447.96 feet to the point and place of BEGINNING. TOGETHER WITH the benefits as set forth in Declaration of Kight of Way recorded in Liber 7172 cp 206 and Liber 7256 cp  107*

 

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EXHIBIT A-26 250 CLEARBROO K ROAD All tbat certain plot,· piece or parcel oland situate, lyinq a11d :tleing in the Town oGreenburqb, CQanty oWeetc:ba.ter anc1 state of Ne"' York, bounded adeaCTitMld as follows: 'BEG'INN:DIG -at • point 011 tbe easterly side of Clearbrook Road distant 423,45 teet northerly as -INred alo.ng t.bo autorly side of CJ.earbroolt JtoaCI frca the northerly and of a c=ve hav:inq a radiua of 25 eat connoatinq the northal:'ly aide o.f Bunter Lane with the oaaterly aide of Clearbrook oad; HUlfKXNG THEHCB North 10 degre..15 ' Weut along aaid easterly side of C1aarbroolt Road 476.08 f-t. to a point; .Robert Martin CCIIIPany1 North a :a land now or oraerly of the city THENCE along other property of d8<Jr-" 32 • East 447.5l6 teet to of New York; · THENCJ! alonq said land of the city ol Nav Yorkl South 07 deqrees li' Eaat 173.80 feet; and .Soath 07 degrees 25l' East 301.60 feat to a point; 1. 2. 'l'BENCE alonq other property of Robert Hartin C011PftJ1Y 1 south 82 deqreee 31' West 424.47 feet. to the -aterly aida of Clearbroolt ROad at the point and place of 8eGXNN'INC. '!.'OC.E'l'HBR WI'l'R tba ben•fita over a in Liber 7172 cp 206, certain right of way as aat forth 100

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E.'CHIBIT A-27 l ODELLPLAZA All that certain plot, piece or parcel of land situate, lyinq and beinq in the City of Yonkers, County of Westchester and state "of New York, said parcel beinq more particularly bounded and described as follows: BEGINNING at a point on the southerly side of Odell Avenue, distant 474 .04 feet easterly as measured alonq said southerly side of Odell Avenue from the corner formed by the intersection of the .easterly side of North Broadway and the souther1y &i.cie of Ocie11 Avenue; THENCE alone; said southerly side of Odell Avenue, courses and distances: the following South 78 deqr.-13 • 00" Bast 180.79 f eet curve; to a point of 1. THENCE in radius of tangency; an easterly direction on a 535.00 feet a distance of curve to the right 222.08 feet to a havinq a point of THENCE South 54 deqrees 26 • OO" Bal!lt curve; THENCE in a southeasterly direction on a radius of 190.00 feet a distance of 110. 51 feet to a point of a curve to the right having 47.07 feet to a point; THENCE leavinq the southerly side of Odell Avenue, South 49 deqrees 45' 37" West 45.00 feet to a point of curve; THENCE in a southwesterly direction on a curve to the lett having a radius of 238.41 feet (a chord bearinq of South 41 deqrees 22' 46" Wast 69.49 feet), an arc distance of 69.74 feet to a point of tanqency; THENCE South 33 deqrees oo• OO" West curve; 120.00 feet to a point of THENCE in a southwesterly direction on a curve to the left having a radius of 251.07 feet (a chord bearing of South 27 degrees 131 59" West 50.45 feet), an arc distance of 50.53 feet to a point of tanqancy; -continued-10 I

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THENCE the followinq courses and distances: 21 degrees 28' 05• west south South 134.11 feet; 74.73 f-t; and 12 degrees 31' 42• West 2. 3. 68 degrees 31' ss• west North 564.40 feet to lands now or formerly of Fredericlc Von Saal; THENCE alonq said last 111entioned lands and partially along lands now or for erly of H. and R. schwartz and lancis now or formerly of Robert L. Tully, the following 1.North 21 degrees 30' 2.South 74 degrees 54 1 3. North 21 degrees 2i• courses and distances: 42" East 66.52 feet; 99.87 feet; 54• East 48• East 197.80 feet; and oo• East 129.07 feet to a point on Odell Avenue to the point or place 4. North 11 degrees 47 • the southerly side of of BEG:INN.ING. . . TOGETHER WJ:'I'H the benefits and SO'B.JECT TO the burdensofthe Declaration of EaseJDents recorded in Liber 7763 cp 408 as amended and aodif1ed in Liber 7837 cp 723, Liber 7857 cp 375 and Liber 9025 in Li.ber 7752 cp 130 and the License Agreeaent contained cp 427 as partial.ly assigned by Liber 7763 cp 527. 102

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Westchester and State of New York, afld being more particularly bounded and described as follows:  Avauie. said pom. being distant 1C3*,4S feel as measured RUNNING THENCE from said point of beginning along the so.uh westerly side of Odell Avenue right, having a radius of 190.00 feet, a Jcmgth of 75.21 feet to a point; south 8 degrees 6 minutes 30 seconds East 567.25 feet to a point; RUNNING THENCE in a westerly direction, South S9 degrees 4 minutes 00 second, West 454.79 feet to » point: RUNNING THENCE in a northerly direct. North 0 degress 44 minutes IB second* West (deed ‘East”) 178.96 RUNNING THENCE North 12 degrees 31 minute* 42 seconds East 124.73 Feet; RUNNING THENCE North 21 degrees 28 minutes 5 seconds East 134.11 feet; THENCE orj a curve IO the right, having a radius of 251.07 feet, a length of 50.53 feet; THENCE north 33 degrees 00 minutes 00 seconds East 120.00 feet: THENCE on a curve to the right, having a radius of 238.41 feet, a length of 69.74 feet; Avenue; said excepted parrel being more particularly bounded and described as follows: on a curve co the as BEGINNING at a point on the southwesterly side of Odell Avenue, 5aid point being distant easterly 1 109 70 feet side of THENCE Odell Avenue along a radial line of North 72 degress 26 minutes 24 seconds East 50.00 feet to a

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THENCE in a southerly direction along the easterly side of Odell Avenue on a eurve to the right having a radius of 240.00 feet, an arc length of 39.60 feet commencing oo a radial of North 72 degrees 26 minutes 24 se<:onds East; TH E NCE south 8 degrees 06 minutes 30 seconds Eas425.99 feet to a point of curvature; THENCE on a curve to the right having a ridius of 3,065 feet, an arc length of 135.60 feet (deed 135.92 feet) to a point on the $0Utherly side of the herein de..cribed parcel; THENCE over Odeli Avenue in a westerly direction South 89 degrees 04 minutes 00 seconds West 50.17 feel to a point on the westerly side of Odell Avenue; · THENCE in a northerly direction on a curve to the left having a radius'of 3,015 feet, an arc length of 129.33 feet (deed 129.63 feet) to a point of lllngency; THENCE North 8 degrees 06 minutes 30 seconds West 425.99 feet to a point of curvature; THENCE oo a cuvve to the left having a radius of 190.00 feet, an arc length of 31.24 feet to a poimt, the point 31ld place of beginning. TOGETHER with the bcnefiu but subject to the burdem of a certain Li<:ense Agreemetll recorded in Liber 7752 Page 47, assigned in Liber 7763 Page 527 and funber assigned in Liber 12618 Page 222, and also TOGETHER with the bcoefou but SUBJECT to the bur11en:s of a Declaration n!Cor<led in Liber 7763 Page 408, supplemented in Libcr 7837 Page 723 and Liber 7857 Page 357 and amended in Page 14 and Libcr 9620 Page liS. Liber 9025 Page 130. Libcr 9436 104

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EXHIBIT A-29 5 A ND 7 ODELL PLAZA PARCEL A All that certain plot, piece or parcel of land situate, lyinq and beinq in the City of Yonkers, county of Westchester and State of N-York beinq bounded and d i.bed a. foll-ows: · The point of the within dea=ibed parcel is located the f ollovinq ·courses and distanfroiD the corner fonaed by the intersection of the ea.terly side of North Broadway with the southerly side of Odell Avenue; RtJNN:ING along the southerly side of Odell Avenue, South 78 degrees 13' oo• East 474 .04 f . t; THENCE partly throw;hlands now orfonaerly ofRobert Hartin COlllpany and partly alonq the lands now or fo ly of Robert L. Tully, now or formerly of B. and R.Schwartz and nov foraery of Frederick Von saal, the following four (4) courses and distances: SOUth 11 deqree& 47 1 OO" West 129.07 feet; 1. 2. 3. 4. South 21 deqrees 22 •48" We&t 197 .80 feet; North 74 deqreea 54' 54" West 99.87 feet; South 21 deqreea 30 ' 42" West 166.52 f..t to the point of beqinninq of the within des=ibed parcel; THENCE throuC)b the lands nov or foraarly of Robert Martin Collpany1 the .tollowinq :rive (S) courses and di_stances: feet; South South South SOuth 68 deqrees 55" East 42" West 18" East 1. 2. 3. 4 . s. 31' 31' 44' 564.40 12 deqrees 00 deqrees 50.00 f-t; f eet; 178.96 21 deqrees 222.05 f-t; 27' 28" West North 68 deqr-32 32" west 529.77 feet to the land& 1 now or foraerly of Erwin H. Rock; THENCE alonq said lands .and continu.inq alonq the lands now or fon erly of Desicpwr Ho.et 1 rnc. !Uld DorliiiUl iWilson and nov or for.arly of Frederick Von Saal 1 the follovinq thr-(3) cour•-and distances: 1 . North 21 deqreea 28 'OS" East 265.92 feet; 2 .North 72 deqrees 06 1 46" West 110. 42 feet; 3.North 21 deqr_. 30' 42" East 178.22 f eet to the poil:lt and place of BBGXNNDIG. 'l'OCE!H!R WlTH the i and SlJBJECT TO the I:Nrdena ofthe Declaration of Easements recorded in Liber 7763 cp 408 as aaended and •edified in Liher 7837 cp 723 1 Liber 7857 cp 375 an4 Liber 9025 cp 130 and the License Aqret contained in L7752 cp 427 as parti ally aasiqned by Liber 7763 cp 527. 105

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PARCEL B ALL that certain plece or parcel of land s uate, lying and being located in the cof Yonkers, County of Westchester, State of New York and being more particularly bounded and described as follows: Beginning at a point fonned by the division line between property now or formerly ASCRE,LLC (Tax Lot 56,Block 3415), property now or fonnerty Robert Martin Company LLC (Tax Lot94, Bloclo: 3415); thence over and across property now or fonnerty Robert Martin Company LLC (Tax Lot 94,Block 3415),S. 21"2728" W.,a distance of 50.00 feet; thence N. 68°32'32" W.,a distance of 207.54 feet; thence N.21°27'28" E., a distance of 50.00 feet to a point on the division line between property now or formerly So. Westchester Associates L.P.(Tax Lot 54,Block 3415), property now or formerly Robert Martin Company LLC (Tax Lot 94,Block 3415); thence al ong said division line,S.68"32'32" E.,a distance of 207.54 feet to the point and place of beginning. ' Being part of the same premises conveyed to the party of the first party herein by deed recorded on 1/3/13 as Control No. 523623476. Containing 10,377 square feet or 0.2382 acres, more or less. 106

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EXHIBIT A-30

 

INTENTIONALLY DELETED

 

107


 

EXHIBIT A-31 1EXECUTIVE BOULEVARD ALL that certain plot, pi-or parcel of land , eit aate, lyinq an4 beir19 in the City of Yonlcers, Wutcb-ter COWlty 1 lfeW York , be inq .ore particularly boUnded and cS..aribed u toll -: BEGINNDfG at a point on the..eterly aide of lfOl'th yv bic:h lallda naw en-fo ly of point 1a at the eouthwaterly ·corner of Julia Dyclalan Anc1rua MNICirial, u llhovn on the S\1Wiviei011 Hap prepared f or llobert Hartin C<apc tny in the City of Yonbrs, dated April 30 , 1981, and filed in the ottioe of the Cleric of W.atcbeater County ( Division of Land. R-eorda) on March 25, 1982 , u Hap llo. 20862 ; RONNDIG thence alonq the soutberly eicle of lands IIIOV or fly of the eaid Julia Dyc:Qan Alldrua Neaorial u ebown on the afore-id Filed Hap, the tollovill;eleven (11)ooureu and dietaneea: South 63 deqr-115' 29• Ban U . IIO f-t; south .68 44 30• Bast 111.74 teet; 1 SOUth 69 degz:... 271 36• Bast 54.21 f-t; 15.71 feet; 91. .. f-t: SOUth 73 30 1 21• Bast 8cNth 73 dAIQz:-• 311 35• Bast 60. 87 teet; South 11 cSeqreee 22 1 o&• But llorth 14 South 89 deqreee de9reee 411 01• East 51.U feet; 27 1 u• Eaet8.52 feet; 1 30• Ba3s0t so.n t . t; south 16 South 82 SOUth 76 37 1 46• East 10.27 feet; and degr •• deqre-31 1 44• Baet 20.86 feet. RDNNIJIG thence throuqb property now or for.erly of Robert Martin Coclp•ny , the followiftCJ tour ( 4 ) cour._ and IU.tanc. . : :l9 degl;e.. 37 1 16" w. .t 218.09 south south South feet ; 60 degreu 22 1 44" But 107.54 13 <!eqreu 35 1 32" w. .t 229.12 feet; t; and f SOUth 211 -1367" Weet 149.71 f. t to a point .on the 1 Executive Soulevard.. llhown onthe arly aideof afoz:.eaid Piled Hap; THENCE along the nortbarly aide of Executive Bou.l.vard and easterly side ofNcn-th Broadway, as shownon theafor. . a id Map, the followinq three (3) couraea and distances: 108

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,,. w. .t 607.50 f"tf llortb 60 d.. 22' lifortherly on a curve to tba ri9ht, COIIJI8Ct:inq tba northerly aida of Exaautiva 110\llavard to tba aa•tarly aide of North Broadway, bavinq a radiue of 44 . 00 feet, a di.tance of 69.22 fMt, the ba9i.nnin9 poi.Dt of aald curv. lulvinq a radial of liforth 29 36' 45• Baat an4 tba aDd point of the curve bavinq a radial of South 60 daqree8 14 • 32• ..t f aDd lforth 29 deqr-55'2e• zan a d i.tance ot 403.39 teet, to tba poi.Dt or place of B&GIJnfDJG. TOGEliitR WITH and SUBJBCT TO a 24 toot vida acce.a Ma-ent :nmninq alonq tha aa.terly porti on of tha above ciMcribad praai-u contained in x.i"'er 7837 cp 723 aDd 'aOClUied byaDd b.tat.s Buppl-m:&ry Declarationof South Waatch .tarExaoutivePark llai.ntanance .1.8aociation clat.s October 12 , racordad in 1987 and 9025 c:p 130. T.i hu' 109

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EXHIBIT A-32

 

INTENTIONALLY DELETED

 

110


 

EXHI BI T A-33 3 EXECUTIVE BO ULEVARD All that certain plot, piece or parcel of land situate, lying and being in the City of Yonkers, county of Westchester and State of New York, being more particularly bounded and described as follows: BEGINNING at a point located at the easterly end of the fol.lowing eleve.n {11) courses and distances, tbe westerly point of beginni.nq of such eleven (1i) courses and distances being at a point on the southwesterl y corner of lands now or formerly of Julia Dyc:k:man Andrus Me110rial, as shown on the SUbdivision Kap prepared for Robert Martin Company in the City of Yonkers, dated April 30, 1981 (Division of Land Records) on March 25, 1982 as Map No. 20862, and which courses and distances then run alOJ39 the southerly side of lands now or formerly of the said Julia Dyckman Andrus Memorial, andfiled · in the Office of the Clerkof Westchester County as shown on the aforesaid filed map as fo lovs: 29• 30• East 43.90 feet; 1. 2. 3. 4. 5. 6-7. 8. South south south South 63 68 69 73 degrees degrees degrees degrees 161 East 1'9.74 feet ; 44' feet ; 27 1 36• East East East East East East 54.28 27• 3S• 85.71 feet ; 30 1 311 feet; South ·south 73 77 degrees degrees 91.84 22' 06" 6·0.87 feet; North 84 degrees 58.44 feet; 48 1 08" feet; South 89 degrees 27 1 8.52 14" South 86 degrees South 82 degrees 50.47 feet; 30' 30" 9. 10. 1 . EaSt 37' 46" East 10.27. feet; 44" East 20.86 feet to the point of South 76 degrees 38' beq inning of the within described parcel; RUNNING THENCE froa said point of beginning, the following courses and distances: four ( 4 ) 1. 2. 3. 4. South south 76 degrees 76 degrees 75 degrees 79 degrees 38 1 44" East 134.72 feet; 24 1 37" East 219.31 feet; 47' 41" East 60.22 feet; 131 25" East 360. 41 feet; South South Ill

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RtJN!UNG THENCE through property of Robert Martin Co.pany, South 10 deqree.s 46' 35• West 91.05 feet to a point on the northerly side of Executive Boulevard; THENCE alonq the northerly side of Exee11tive Boul.evard, southerly on a curve to the left baving a radius of 328.00 feet a central anqle of 34 4egree& 13' 29" a 41stanoe of 195.926 feet to a point; RUNN:tNG THENCE through property of Robert Martin C0111pany, the folloWing six (6) . courses and distances: 76 degrees 09' ZO" West 390.59 feet; 1. North degrees 30' oo•w-t 13 62.27 teet; 2. 3. 4. 5. 6. South 34• 203.11 feet; 2.43 feet; North 70 degrees 17' West North 13 deqreaa 35 ' 32" Bast 44• Weat 107.54 f-t; North 60 North 29 or place WITH the deqreaa 22 ' 37 1 16• Bast 218.09 to the point f-t degre-of BEGDINDIG. TOGEl'H£R benefits of and SUBJECT TO the burdens ofa Declaration of Ea ;recordlld in Liber 7763 cp 408, as amended and modified in I.iber 7837 cp 723, Liber 7857 cp 375 and Liber 9025 cp 130 . TOGETHER WITH a non-exclusive easement appurtenant to the preaises described above, for the i nstallation and maintenance of electric, gas and telephone lines over and a=oss a thirty-two (32) foot wide strip over a portion of the premises on the southerly side of the premises des=ibed above (which adjacent premises on the south are identified as Bl.ock 3455 Lot 70 on the Tax Hap of the City of Yonkers), the westerly and northerly boundary lin-of such strip being des=ibed as follows: BEGI:NIIDIG at a point on the northerly side of E:lcec:Utive Boul.evard, aa shown on II&P entitl.ed, •SUbdivision Map prepared for Robert Martin Comp any• prepared by Ward carpenter Engineers, lJic. dated April 30 , 1981 and fil.ed in the County Cl.erk's Office (Division of Land Records)Westchester County on Karch 25, 1982 as Map No. 20862, said point of beginning baing distant south 60 degrees 22' 44" East 607.so feet aa -asured along the northerlyside of Exee11tive Boulevard, frOD the -sterly end ofa curve having a radius of 44.00 feet connecting North Broadway; R'DlllUNG THENCE froa said point of 1Je9i.nning along the westerly and then northerly line of the herein ·described thirty-two (32)foot vide strip vitb the following thr-(3) coarse& and distances: 1 . 2. 3. IJorth 29 4egr-37 '16·Ba&t 149. 78f-t; lforth 13 degrees 35' 32• East 227.39 feet; and s 70 degrees 17 ' 34• East 203.11 feet. 112

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EXHIBIT A-34 4 EXECUTIVE PLAZA ALL that .certain plot , pi-or parcel or land, situate, lyinq and beinq in the City of Yollltera, county of Westchester and state of New York, beinq more particularly bounded and described as follo. : BEGINNING at a point on the southerly aide of Executive Boulevarcl, said point baing South 60 degrees 22 1 44" East 290.33feet from the northeasterly and of a curve hAving a radiu.a of 94. oo feet tor a lenqth of 147.43 feet, which curve connecta the aoutheaatarly side of North Y with the 801ltbvesterlyside of Executive Boulevarcl (said curve and the allgnaent of zxec:utive Boulavarcl being ahovn on a certain -p entitle4 "8\IWiv.iaion Hap Prepared f Robert Martin CCJIIPilny in the City of Yonkers, Westcheater Coanty, N·Y•. prepared by Ward carpe!)ter J!l;nqineers, Inc. dated April 30, 1981, and filed in the Wutchester county Clerk's Office (Division of Land Recorda) on March 23, 1982 as Map No. 20862); RUNIUNG thence fr-Pid point of beqinning, the following couraea and diatanc..: on a curve to the right having a radius of 25,00 f eet,. tor a lenqth of 39.35 feet; South 29 degrees 48 1 00• West 719.13 feet; south South South 60 deqr-• 11' 42" East 329.39 feet; 12.oo feet; 13 deqreea 33 • 28West 62 degrees 43' 47" East 102.88 feet; 60 deqrees so• 59" East South 85.14 feet; Worth 12 degrees 35' 02" East 521.32 feet; Jlorth 60 degrees 11' 26" West 314.36 feet; North 29 deqrees 48 1 OO" East 227.48 feet to a point or curve to the right, having a radius of 25.00 feet, a length of ·39.19 feet alonq the last aantioned curve to a point on the southerly side of Executive Boulevard; Along the southerly side of Exee11tive Boulevard North 60 degx>ees 22' 44" West 102.00 feet , to the point of BEGXNXING. SUbject, however, to the riC)hts of the llortqaqor to create road, ckainage, HWer, watar, and driveway us.-nts over the subject property, subject however to the provisions of South Westchester Executive Park Maintenance Asalociation Declaration dated ·May 3, 1982, recorded in the Office of the Clerk of Weatchester County (Division of Land Records) (•Clerk's Office•) on Kay S, 1982, in Li.ber 7763 of conveyances, at page 408, u ..ended and suppl...nted by tba(i) Suppl8111efttary Declaration aade as of June a, 1983, recorded in the Clerk's Office on June u, 1983, in Liber 7837 ot 113

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EXHIBIT A-35 6 EXECUTIVE PLAZA all that certain plot, piece or parcel of land situate, lying and being in the city of younkers, county of westchester and state of new york, being more particularly bounded and described as follow: BEGINNING at a point on the southerly side of executive boulevard, said point being distant south 60 degrees 22’ 44” east 562.41 feet from the notheasterly end of a curve having a radius of 94.00 feet for a length of 147.43 feet, which curve connects the southeasterly side of north broadway with the osuthewesterly side of executive 114

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RUNJID!G THENCE Nprth 59 deqrees 23' 38" East 164 ,69 feet;· 'l'IIENCB lclon9 a curve to the left having a radius ot 225.00 feet tor ..• distance of 182.42 feet; RONN:ING THENCE North 12 deqraes 56' 25" East 618.04 feet to a point of curve; THENCE al.ong a curve to the let't havinq a radius of 25.oo feet for adistance o:t 35.41 teet to the southerly side of Executive .Bou.levazd; , TBEIICE. al.ongthe southerly side o:tExecutiveBoulevard,the following courses and distances: l..Along a curve to the ri9bt bavinq a radius of 328.00 teat tor a cU.c;t.ance of 44.85 feet; iUld 2. North 60 deqreos 22' 44" West 242.06 feet to the point of BEGDINIJIG, TOGETHB:R !nTH the benefits and SUBJECT TO the burdena ot a Declaration of Easements recorded in Liber 7763 cp 408, 110di£ied by Liber 7837 cp 723 and Libo.r 7857 cp 375 and •-nded and restated in Liber 9025 cp 130. 11 5

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EXHIBITA-36 illOCORPORATEBOULEVARD All that certain plot, piece or parcel of land situate, lying and being in the City of Yonkers, County of wastchaster and state of New Yor, more particularly unded and described as follows: 'BEGINNING at a point on the easterly side of Entarprise Boulevard distant 17 . 6 feet southerly from the southerly end of the arc of a curve having _a radius ofs.ooteat, a length of 36.02 teat, which aaid curve connects the aoutherly aide of Elcec:utive Boulevard and the easterly side of Enterpriae Boulevard; RUNNING thence frOID said point ot beqinni.nq the tollowinq courses and diatancaa: South 77 degrees 031 35"·East 35.00 feet; THENCE easterly on a curve to the left having a radius of 11 .53 feat, a distance of 73.81 feet; THENCZ South THENCE south 53 degrees 51' 40" East 218.28 feet; 12 dec;Jreea 56' 25" wast 336.83 teet to a point; RUNNING thence through Corporate Drive the following courses and diatancos; south 81 daqrees 28' 05" west 184.45 feet; THENCE northwesterly on a curve to the riqbt havinq a radius of 195.00 feat, a distance of 136.53 feet; THENCE North sa daqra..24' 56•west 209.91 feet to the aaaterly aida of Enterprise Boulevardt s· East 53.66 Rtli!NDJG thence along the sua, North 12 deqrees 56' feet and North 12 deqraas 56' 5• Bast 349.51 feet to the point or place Of Bl!GINNING. THOSE certain non-excluaiva drainage, a"'er and water eas-ants appurtenant to Parcel I daacribod above, created by that certain south Westchester Executive Park Maintenance Association Declaration dated May 3, 1982 by Robert Martin coapany, recorded -continued 116

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on May 5, 1982 in Liber 7763, at paqe 408 with the Office of the county Clerk of Weatcheater county, New York, asodifiad by the followin9 documents, all of which were recorded with said Office: a) Suppleaentaey Declaration of South Westcheater Executive Park Maintenance Aas iation dated aa of June 8, 1983 by Robert Martin Company, recorded on June 13, 1983 in r.tMr 7837, at paqe 723; (b) Suppl-.ntary o+:laration of south W..tchester . Executive Park Maintenance Aasopiation dated as of Auquat15, 1983 by RDbert Martin CDliiP&Jly, recorded on Auquat 29, 1983 in Libar 7857, at pa9e 375; (c) ADendedl and R..tated SupplementarY Declaration of south Westcheeter Executive Park Maintorianoe Association, dated aa of ·October 12, 1987 by RDbert MArtin Company, recorded on November 12, 1987 in Liber 902'5, at p119e 130; and (d) suppleaentary Declaration Ho. 3 of South westchellt.er Executive Park Maintenance Association dated as of llarch 13, 1989 by Robert Martin COIIpany and Yonkers Industrial Devel piiMint Aqency, recorded on March 15, 1989 in Liber 9476, at paqe 14 1] and (e) Suppl-ntary Declaration No. 4 of south Westcheater Executive Park Maintenance Association dated as of Auquat 23 1 1989 y Robert Martin Company and Yonkers Xndustrial Oevalop ent AqanfY• recorded on September 6, 1989 in Liber 9620, at paqe 115 (hereinafter collectively called the "Daclaration•). TBOSE certain nbn-excluai ve driveway easeae.nts appurtenant to Parcel 'I eacr' above, created by the Declaration ovar, upon and acroae the followinq deacribed property; . . I ALL that cartaiJi ·piece or parcel of land beinq a 24 foot vide Access Easaaent Situate, lyinq and beinq in the City of Yonkera, Countyof Westf:hester,State of NewYorkand bein9 or• particularly bounded and described a• follows: BBC:INNDfC at a iInt on the easterly aide of a propoeed road called Enterpriae BouleVard, ea.id point beinq distant eoutnerly 196.28 feet as -aaured.!alonq the followinq courses and distances fr01111 the southerly aide of Executive Boulevard: I on a curve :to th• left havin9 a radius of 25.00 lenqth of 36.02 feat to a point of tanqency an feet· an arc s· West 160.2p feet; -continued-south 12 d ees 56' 117

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Said latter point on the southerly aida of Executive Boulevard as shown on "SUlxUvision Map prepared. for Robert Martin COIIIPany" dated April 30, 1!181 prepared by Ward c-arpenter Engineara, Inc. and filed in the WestcheatarcountyClark's Office, (Divisionof Land Records) on March 25, 1982 aa Map No. 20862, beinq distant easterly !142.56 feet as -asured along the southerly side of Executive BouleVa%\d fr0111 the easterly end of a· curve connecting the easterly side of Broadway ·to said southerly side of Executive Boulevard and havinq a rad'ius of 94.00 f-t and measured along the f ollowinq courses and distances: South 60 deqrees 22' 44" East 804.47 f-t; THENCE on a curve to the left having a ra'dius of 328.00 feet an arc lenqth, of 138.09 feet; · RONNING thence from said point of beginning around the perimeter of the herein described 24 foot wide Access Easement; South 77 daqreea 03 • 35" East 235.00 feet; · THENCE on a curve to the l111ft bavinq a radius of 100 .53 feet, an arc lenqth of 72.85 feet with a delta angle of 41 degrees 31' 11"; THENCE South 53 deqrees 511 40" East 233.51 faet and SOUth 12 deqrees 56 • West 314.73 feet to -a point and the northerly line 2511 of a proposed road called Corporate Drivel · RUNNING thence along said West 25.72 fest; northerly line, South 81 deqrees 53 30" 1 THENCE North 12 deqr-s 56' 25• East 308.14 f-t and North 53 daqrees 51' 40" West 203.57 fest; 'l'HENCE on a curve to the right co-ncing on a radial of South 21 deqrees 20' 54" East having a radius of 124.53 teet, an aro lenqth of 74.52 feet with a delta anqle of 34 cleqreas 17' 19" and North 77 deqrees 03' 35" West 235.00 feet to a point on the easterly side of a proposed road called Enterprise Boulevard; -continued-118

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RONNING thence along the easterly side of said proposed road North 1:2 degrees 56' 25" East 24.00 foot to the point: and place of BEGINNING. AND ALL tbat certain piece or parcel of land being an Access Easement situate, lying and being in the city of Yonkers, County of Westchester, State of New York and being more particularly bounded and described as follows: BEGINNING at a point on the easterly side of a proposed road called Enterprise Boulevard, said point being distant southerly 557.79 feet as meaaured along the following courses ·and distances from the southerly side of Executive Boulevard: on a curve to the left having a radius of 25.00 feet an arc length of 36.02 feet to a point of tangencY and South 12 degrees 56' 25" West 521.77 feet; Said latter point on the southerly side of Executive Boulevard as shown on "Subdivision Map prapared for Robert Martin COlllpany" dated April 30, 1981 prepared by Ward carpanter Engineers, Inc. and filed in the WestchesterCountyClerk's Office, (Divisionof Land Records) on March 25, 1982 as Map No. 20862, being distant easterly 942.56 feat as m.eastirad along the southerly side of Executive Boulevard from the easterly end of a curve connecting the easter;ty side of Broadway to said southerly side of Executive Boulevard and having a radius of 94.oo feet and measured along the followin.g courses and di.stances: South 60 degrees 221 44" East 804.47 feet; THENCE on a curve to the left having a radius of 28.00 feet an arc length of 138.09 feet; RONNING thence from said point of beginning around the perimeter of the herein described Access Easement on a curve to the .left having a radius of 25.00 feet, an arc length of 30.08 feet with a delta angel ot 68 det;Jt'ee111 57' 05"; -continued-119

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TBDCE South 56 degrees oo• •.o• East 181.83 feet; THENCE on a ca1ve . to the 'lett having arc lenqth or 1!56.13 feet w,ith a dal.ta a radius of 212.50 feet , an angle of 42 degrees 0!5•.50"; TBJ:IfCE North 81 deqrees 53 • JO" Bast 177.76 feet, South 12 degrees 56'25" West 53.81 feat , south 81degrees 53'30 11 West 181.3!5 feet;. THEHCE on a curve to the right having a radius of 272.50 feJtt, an arc lenqth of 200.21 feat with a delta angle of 42 degrees 0!5' so• and North 56 degrees oo• 40" West 125.48 feet; THEHCE on a curve to the lett having a radius of 25.00 feet, an arc length of 46.58 feet with a delta angle of 106 degrees 44 1 52" to the point on the easterly side of a proposed road called Enterprise Boulevard; RUNJaNG thence along the easterly aide of said proposed road on a curve to the left having a radius of 275.00 feet an arc length of 20.64 feat cinq on a radial of South 72 degrees 451 31" Bast and having a delta anqle of 4 degr... 18'04" and Korth 12 deqre­ Bast 95.04 feet to the point.and place of BEGINNING. !56'2!5" 120

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EXHIBIT A-37 200 CORPO RAT E BOULEYARD SOUT H All that certain plot, piece or parcel of land situate, lying and beinq in the City of Yonkers, county of westchester and State of New Vork, mora particularly bounded and described as follows: BEGINNING at a point on the center iine of Corporate Drive distant the followinq courses and distances from the easterly side of Enterprise Boulevard: South 58 deqrces 24' 56" East 209.91 teet; THENCE on a curve to the left h.avinq a radius of 195 feet, a distance of 1.6 feet to the point·or place of beqinninq; RUNNING thence alonq the center line of Corporate Drive the followinq three courses and distances: on a curve to 1;Jle left havinq a radius of .195 feet, a 1. central anqle of 39 eqrees 38'48" a distance of 134.93 feet; 2. thence North 81 deqrees 28' 5" East 184.45 feet; and thence North 81 deqrees 28' OS" East 101.15 teet to a J. corner; THENCE leavinq Corporate Drive and runninq South 5 daqreea 31' 32"· East 141.32 teet; THENCE on a cUrve to the riqht bavinq a rad.ius C?f 201 feet, central anqle of 11 deqrees 08' 10•, a d.istance of -39.07 feet; THENCE South 05 deqrees 36 1 39" We:St 207.94 feet; THENCE on a curve to the right havinq a radius of 201 feet, central a.nqle of 13 deqrees 32' 50", a distance of 47-53 feet; THENCE south 19 deqrees 09' 29" West 122.91 feet to a corner; THENCE North 78 deqrees 11' 25" West 104.23 feet; THENCE on a curve to the left havinq a radius of 231.50 feet, central anqle of 19 deqrees 57' 11•, a distance of 80.62 feet; THENCE South 81 deqrees 51' 28" West 230.15 feet to a corner; a a a . -continued-121

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THENCE North 0.8 degrees 05' 06" West 31' 52" west 60 feet; 181.28 teet, North 07 degrees THENCE on a ·curve to the right having a radius of 350 feet,a central angle of 34 degrees 55' 31", a distance of 213.35 feet; THENCE North 27 degrees 23' 39" East a-distance of 112.63 teet to of the center line of BEGINNING. Corporate Drive and the point or place 122

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EXHIBIT A-38 225 CORPORATE BOULEVARD ALL that ccr1ain plot, piece or parcel of land situale, lying and being in ll)e City of Yonkem, County ofWcstcbesltrand Stare ofNew York, more particularly bounded and described as foUows: BEGINNING at a point on 'the southerly side of Enterprise Boulevard (SO foot Wide Right of Way), which said point is the northeasterly comer of the property herein described;said beginning point marks the division line of the property herein described and land now or formerly of Suma Federal Credit Union; RUNNING THENCE along the division line between the property hetein described andland now or formerly of Suma Federal Credit Unioo.lbe following courses and distances: South 30 degrees 36 minutes 22 10e90nds East, 58.0S feet to a point; South 03 degrees 44 minutes 57 seconds East, 13.47 feet to apo ofcuzve; On a curve bearing to IPrighl, haviDg a ra<liu.s of 150.00 feet an arc lcn_gth of6l.15 feet to a point; Sollth 70 degrec;s 23 minutes 24 seconds East, 92.61 feet to·a point of cuzve; On a curve bearing to the left, having a radius oflSO.OO feet an arc1ength.of 40.8I feet to a a) b) c) d) e) point; - South 85 degrees 58 minutes 44 seconds East, 39.98 feet to the.center lime of Cotporate f) Boulevard South (30 Foot·Wide Access Basement); · THENCE aloog thecenter liDe of cotPo Boulevard South, the foll01Ying course and disfanoos: On a curve bearing to the left having a radiuso£350.00 feet marc leogtb of70.57 feet 1o a point; a) South 07 degrees 3I minutes 52 seconds But, 60.00 feet to a point; b) c) - South 08 degrees os·minutes 06 soconds East, 181.28 feet to the division line ofthe property herein desco'bcd and land now or formerly ofRMC Developmeo.t Co.LLC; 'l'IIENCE along the division line of the propertyheldn described and land now or fonnedy ofRMC Development Co.LLC, South 81 degrees S I mintrtts 28 soconds West, 300.67 feet to lbe division line of the property herein described and landnow or formerly of Scbott America; THENCE·along the division line of the property herein desco'bed and land now«formerly ofSchott America, the following courses and distances: North 08 degrees 06 minutes 30 seconds West, 308.78feet to apoint of curve; On a curve bearing 1o the left having a radius of280.01 feet an arc lmgth of46.I9 feet to a a) b) point; South ndegrees 26 minutes 17 sccoods West, 40.01 feet to a point; c) , 123

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THENCE on a curve bearing to left, having a radius of240.00 feet an arc length of37.68 feet tO a point of cmve; THENCE on a curve bearing to the rigbt, having aradiusof25.00 feet an arc length of37.50 feet to the S?utherly ado of Enterprise Boulevard (SO Foot Wide Right of Way); THENCE aloog the southcdy sideof Enterprise Bou!CM.rd, North 59 degrees 23 minutes 38 SCCODds East, 117.40 feet to the point or place ofBEGINNING. 124

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EXIITBIT A-39 1SKYLINE DRIVE ALL that certain plot, piece or parcel of lane!, situate, lying and being in the Town of Mount Pleasant, County of Westchester and State of New York, being known and desiqnated as Lot 1 as shown on a certain llllP entitled , "Kap of Property prepared for Robert Martin company" dated 6/3/81 and last redated 7/30/81 and filed in the westchester county Clerk's Office on August 14, 1981, as Map No. 20691, said lot being more particularly bounded and described as follows: BEGINNING at a point on the south side of Saw Mill River Road, where the lii8Jie is inte.raected by the easterly line of la.nda of the Consolidated Edison Co pany; RUNNING THENCE al ng the south side of saw Mill River Road: 1. North 71 deqreas 45 1 20East 0.10 feet; North 70 deqrees 10' 2. 3. East 68.94 feet; and North 89 deqrees 36 1 40" East 81,85 feet to lands now or formerly of Fred Nilsson; THENCE along said lands nov or formerly of Nilsson the follovinq five (5 ) courses and distances: 1. 2. south 56 deqraas 23' 20• East 33.50 feat; South_67 degrees 081 20" East 33.50 feet; 3. 4, south 72 degrees 01'20• East 70.00 feet; southerly on a ourve to the!gbt havinq a radius of 76.oo feet a central angle of 79 deqreas 18', a distance of 105.19 feet; south 07 degrees 161 40" West 431.58 feet to a point; 5. THENCE North 80 degrees 04 1 40" West 82.14 feet to a point; THENCE North 09 degrees 55'20" East 109.17 feet; THENCE northerly on a curve to the left having a radius of 170.00 feet, a distance of 257.00 feet to a point; THENCE North 76 degrees 411 47• West 46.63 Consolidated Edison Company; feet tolands of 125

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THENCE alonq said lands of the Consolidated Edieon Company, North 09 deqrees 00 • West 214 .69 feet to the point or place of 'BEGINNING. TOGETHER WITHthe benefit• andSUBJEC'l' '1'0 the burdensotthe Sanitary Sewer and storm Water Drainage Easement recorded in Liber 7528 cp 382. TOGETHEit ·WITH the benefits endSU'S3EC'l' TO the burdensof the EaaeJD.ent Aqreeaaent between·Conaolidated. Edison Company of New York, Inc., and Robert Martin Company recorded in Liber 7693 cp 610, Liber 7693 cp_ 628 and Liber 7693 cp 619. '1'0 the burdem;ot as lllllended by Liber TOGETHER WITH the benefits and SUBJECT Declaration recorded in Liber 7716 cp 704, cp 558. the 7720 126

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EXHIBIT A-40 2 AND 4 SKYLINE D RIVE ALL that certain plots, pieces or parcels of land,situate, lying and being in tho Town or Mount Plea&ant, County of westchester and state of New York, known and designated as LOt 4 on a certain up entitled, "Subdivision up prepared for Robert Martin Coaapany" dated 12/18/84 and filed in the westchester county Clerk's Office, Division oLand Records on 4/7/86, as Map No. 22280, which said lot is more particularly bounded and described as follows: BEGINNING at a point.in the centerline of Skyline Drive, said point being the point of intersection of the easterly line of lands now or formar1y of Consolidated Edison co., the westerly line ot Lot No. 1 on Westchester County Clerk's filed Map No. 20691 end the northerly line of the herein described premises, all as shown on Map No. 22280 aforesaid; RONNXNG THENCE along the centerline of Skyline Drive the following ten (10) courses and distances: South 76 degrees 41' 47" East 46.63 feet to a point of 1. 2. 3. curve; Along a curve to tbe riqbt having a radius of 170 feat for a distance of 257 feet to a point of tangency. south 09 degrees s· o· west 109.17 feet to a point of curve; Along a curve to tbe riqbt having a radius of 15 feet 4. s. 6. 7. 8. 9. 10. for a distance of 82.83 feet to a point of tangency; South 42 degrees 391 West 188.94 feet to a point of curve; Alonq a curve to the left having a raQis of 180 feet for a distance of 98.81 feet to a point of tangency; South 11 degrees 111 '50" west 257.97 feet to a point of curve; Alonq a curve to the right having a rad.ius of 60 :teet for a distance of 78.7 0 feet to a point of tangency; south 86 deqreea 20'SO" West 235.22 feet to a point of curve; Alonq a curve to the left having a radius of 185.00 feet for adistance of 240.77 feetto thedivision line between the nerein described premises and Lot No. 10 on Westchester County Clerk's Filed Map No. 21547; RUNNING THENCE along said division line North 78 degrees 13' 20" Wast.201.33 feat to the division line between the herein described pruu.ses and lands now or fon erly of Consolidated Edison co.; RUNNING THENCE along the same the following four (4) cours.. and distances: · 1. North 41 degrees 22'40" East 996.79 feet; 2. south 65 degrees 22'10" East72.92 teet; 3. 4. North 11 degrees 04 1 20" East 267.98 feet; and North 09 dagre..00 1 OO" Weat78.12 feet to the point or place of BEGINNING. 127

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EXHIBIT A-41

 

INTENTIONALLY DELETED

 

128


 

EXHIBIT A-42 5 AND 6 SKYLINE DRIVE PARCEL I AM) H - COMPOSITE DKSCRTOONi ALL that certain piece Of pared of tend together situate, lying mid feeing in ihc Town of ML Pleasant, County of Westchester, State of New York being known and designated BS Lot* 5 and 6 ax shown on “Map of Property prepared foi Robert Martin Company” dated June 3, 1981 with subsequent icdnlc prepared by Ward Carpenter Engineers, Inc, and filed in the Westchester Cwmry Oafs Office (Division of Land Records) August 14,1981 as Map No. Z0691 and being mote particularly bounded end described as follows: BEGINNING at a point on the centerUne of SfcyUne Drive East said point being distant easterly 41 67 feet as measured alor.g staid ccnterline from the tiaateriy end of a curve having a radius of 50.00 ibet connecting Skyline Drive; RUNNING THENCE Gem said point of beginning along the cenk-r line of Skyline Drive East and the northerly side of Lob C and 5t South 77 degrees 0? minutw 10 teconds East 508.9S feet to a point and the centerhnt of a “Right of Way and Division line” as shown PO a map entitled “Map of Land in Ihe Town of ML Pleasant” dated July 8, 1903 and filed in the Westchester County Clerks Office (Division ofl Jind Records) October 19t 1904 us Map No, 1409; SUNNING THENCE in a southerly direction along said hue, South 00 degrees 43 minutes 20 seconds East 479 feet to a pttifit and property of the County cf TVcgtehesier, RUNNING THENCE along property of the County of Westchester; 1North 82 degrees 42 minute 30 seconds West 160.72 feet; 2 Sutnh flfi degrees 42 minutes 30 seconds East 424, i 1 feet; 3 North 77 degrees 09 minute 10 seconds West 23B,83 feet; 4 North 67 degrees 49 minute 27 seconds West 7,41 feet; 5 North 79 degrees 28 minutes U seconds West 31.80 feet; and 6 North 7S degrees 07 minutes 46 seconds West 107,57 feet to a point and fee division line between Lots 5 and 9 as shown on said Map No. 20691;

 

RUNNING THENCE in a 11011h«ly dltec:tion aloog aaid divisioo line, North 12SO mlnules SO I!Cro!lds Bast 287.30 feel to a point and the division liDe betwcenl.oll6and 9; RUNNING 11DNCE aJona Hid divilioo tioe: 1. NOI(b 77 degreea 09lllinutet 10 tcconds West 218.00 feet; IIDd North 12 delfCC' SO minutes SO ICCXlnds But 10.82 feet 10 a point IDd tbcf divisi011 between Lot 6 aDd ''Other property of Robert Mvtin COIIIpllly" u shown on said Map No.20691: 2. R.l.INNING THENCE In a nortborty dirc:dlon·along said division line, Nom 12 clcp-eea so· minuteSO IIClC()II(!s East S8S.12 feet 10 the centerline of Skyline Drive East the poiDIIIDd piiOC of BEGINNING. TOGBTIIER with and easement and ri(lbt of w..y thirty (30) fed io width ad1\IIDII'OUI!d,. tho CCIIt« liDe of whicb coincides wilh •part of tloo cuterly bowldary of said pnlllli-. wbich Mid CORia' line is dcsipalcd ..·"Diviaion Liue*, IIlii which "Diviaion Lillo" and riali or'"¥ "" ' llhown on a cc:rWD map mliof landIn Town of Mount P!easent, WCIItdlcllllr Caul:lly, N""' Yode, fonnerly of Fitch Landon an more recently of A.E. Bliss, abowin& dlvirion of aanc into two equal portiom", JUdo bY, WatlfCa:pcatcr and Soo, C.B.'a, dalcd JUly 8, 19031111d fllod in the Office lbc Register of Westcbcltcr County, Division of Land RccoiiSt, 011 October 19, 1904 ..MapNo. 1409. 'fOGB'fllER with tile provlslom of a ccnaio 18Jecmcnt dated March 2, 1953, by and bolwocn Fred Nilsson and C.Powers Taylor recorded in WOlilcbestcr County Clert'a Ofllco, Dhilllon of Lmcl Roocmls, oo MiliCh S, 1953 iD La'bar 5181ofDocds at Pf8e 9S,said asn-1all'cct Qa only that part of the aboYO deacribod parcel ooaveyed 10 C. PowCIII Taylor by deed nconled Ill Libc:r 4887 Cp 170 and biag tho rightJ of the parties thereto to 1bc eleeiJic liooa, polol, wirea aad app'llrtm•PC"t ex1aldiPs &om S.W Mill Jtiver Road over the right of waythe JAop«tieeofNiJuon and Tayloralbown oa R.O.Map No.7928. 130

 

TOGETHER with the provisions of an agreement dated April 10, 1967 by and between Bertha Langle and others HE parties of the first, second, third, fourth and fifth puts aid C Powers Taylor, party of the aixlh part and receded in Westchester Qjimty Cleit’s Office (Division of Land Records) in Liber 6699 of Deeds, at pago 44Q, said agreement only affecting that part of the above described p&ral convoyed to C Powers TaiyJor by deed recorded in Liber 4BJ7 Cp 170 and providing a permanent easement eighteen (18) ieet ia width along the easterly line of the above-deWibed prejnise$ for the construction and maintenance of a road. TOGETHER with the provisions of an casement Jbr sanitary sewer lines and Moon water drainage Enes granted by Eosedale Nurseries, foe, 1© Robert Martin Company, dated December 2tL 1978 and recorded December 29,1978 in Liber 7528 Cp 3S2. TOGETHER with the provisions of un casement fur ingress and egress granted by Consolidated Edison Company of New Yori, Inc., to Robert Martin Company dated March 12, 1981 and recorded April I4> 1931 in Libm 7693 of deeds at page 610. TOGETHER with the provisions of an easement for storm water detention basins and storm drainage lutes granted by Consolidated Edison Company of New York, mc to Robert Martin Company dated Marsh 12, 1981 and recanted on April 14, 19*1 in Liber 7693 of deeds at page 6ZS. TOGETHER with the provisions of * sewer easement contained in dedaratioa recorded in Liber 7716 Cp 7*2, TOGETHER with me provisions of a driveway easement contained in declaration recorded in Liber 771* Cp 787. 131 TOGETHER with the provisions of a driveway easement contained in declaration recorded in Liber 7716 Cf 792, 131

 

 

EXHIBIT A-43

 

INTENTIONALLY DELETED

 

132


 

EXHIBIT A-44 7 SKYLINE DRIVE ALL that certain plots, pi•cee or parcels of land, aituate, lying and being in the Town of Mount Pleasant, County of Weetcheater and State of New York, known and designated as Lot 7 on a certain map entitlad, •subdivision Hap prepared for Robert Martin Coltlpany• dated 5/23/83 and filed in the Westchester County Clerk••Office, Division of L.nd Records on 12/16/83, as Map No. 21422, which said lot ia more particularly bounded and described aa follows: BIIGDDIDJG at a point in the centerline of Skyline Drive Bast where the same ie intersected by the division line between Lot No. 6 on Westchester County Clerk's Map No. 20691 and Lot No. 7 on Map No. 21 22 aforesaid; RUNNING T.BKNCB South 12 degree•so minutes so seconds along said divi.ni.on line, 585.11 feet to tho division line between the herein described premises and Lot No. 9 on Westchester County Clerk1 s Map No. 20691; c North 77 degrees 09 minutes 10 seconds Neat along RRG said division line, 486.20 feet to a point in the centerline of skyline Drive eat, said point being tbe t.he h tr in described premises; aouthweeterly corner or ll.tJIOJDI'CJ TBBRCB along the centerline o£ following rour (4) courses and distances: Skyline Drive westthe 1. North l-1 degrees 46 1'1\inutes 40 seconds kat, a point of curve; On a curve to the righhaving a radius ot distance of 240.77 faet1 North 86 degrees :010 minutes so seconds Eaat, 302.93 feet to 165.00 feet, a 235.22 feet to 3. a point of curve; On a curve to the left having a radius of 60.00 feet, a distance of 78.70 feat to a point in the centerline of Skyline Drive; R'OJQIXJIG TBII3TCI! along sam.e North 11 degrees 11 minutes so seconds East 23.91 feet to a point; RTHENCE southeasterly along the centerline of Skyline Drive on a curve to the left having a radius of 50.00 feet, a d stance of 77. 0 teet to a poi.nt io. the centerl.ine of Sky.l..ine Drive l!:ast; TRENCB eontinui.ng al.ong same South 77 degrees 09 mi.nutee J.O seconds East, 4J..G7 feet to the point or place of D3GXNNXNG. TOG&'l.'illtlt wrrH Driveway Ease12\8nt recorded in Li.be:t" 771.7 Cp . J. and Liber 771.6 ep. 792. CA£fect•pr •••and mo:t"e) TOGETBl!:R wrra Grant of Basements for Sanitary Sewer and Storm Water and JEJOre) TOGETHER wrrH Easements for ingress and agrees over SkyLine Drive (Bast and West) as shown on Piled Map No. 20691, 21422 and 22280. (Affects pram.i.Ar-anc! DOra> TOGE'1'SJtR WJ:TB the ef i.ts and SUBJBCT 'rO the bu.rd.ena of. a oecl.arat i.on recorded :in Liber 7716 Cp . 704, and amended by Liber 7720 ep. 558. (Af£actspremise& and mo:r:e) TOGJtlHElit wrra: an'Easetnent from Con Ec:l:lson to Robert M&rti.n Company recorded in L er. 307 Cp. 15&. ( facts pr aes an4 mora) Drainage Li.nes recorded in L r 7528 Cp. 382. CAf£ect8 es 133

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EXHIBIT A-45 8 AND 10 SKYLINE DRIVE All that, certain plot, piece or parcel at land situate, lying and being in the Town of sit. Pi assent, County of Westchester and state of New yoric, shown and designated ae Lot 20 an a map entitled, “Subdivision map prepared for Robert Martin Company” dated 9/1/83 and filed 5/9/64 in the office of the Clerk of Westchester County, Division of Land Records as Hap So. 31547, which said lot may be described as follows; BEGINNING at the intersection of the center line of Skyline Drive-West with the northerly line of lands of the County of Westchester which said centerline at the point is also the division line between Lot 5 as shown on County ClerK Maa No. 20691, and said Lot 10 as Shown on Map Not 21547| THENCE, from said paint of beginning, along said lands of the caujftty of Westchester, the following three (3) courses and distances; 1) 2) 3) North 76 degrees 24’ 12** West, 137.10 feet; Nerth 74 degrees 36* 47* Wast, 307*33 feet; and North 74 degrees 54* 35” west,   82.85 feet to the easterly line of lands now or formerly of Consolidated Edison Company; THENCE, along sane. North 41 degrees 22’ 40” East, 658.05 feet to the northwesterly corner of the herein described parcel; THENCE, along other property of the Robert Hiartin Co., South 7B degrees 13’ 20” East, 201.33 feet to tbe centerline of said Skyline Drive West; THENCE, along same, being in part along other propei-ty of the Robert Martin Co.( and in part along said Lot 9, South 11 degrees 46* 40” West, 600,64 feet to the point or place of BEGINNING. TOGETHER with the provisions of an Eaeament for sanitary sewer lines and storm water drainage lines granted by Rgsedale Nurseries, Inc., to Robert Martin Company, dated, December 28, 1978 and recorded December 29, 197B in Liber 7528 Cp 382.

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1'0GE'liiER WI'l'll.the provbions o!an Ea.sl!lllent for ingress and e<JrUS qranted CODaolidatecl lflti50Jl Coap.ny of New York, Inc. to Robert 198l. in Martin ca.pany dated March 12 1• 1981 and record.ecl April 14, Liber 7693 of deed at paqe 610. TOGJ:'l'HER with the provisioniaof an Ease111e11tfor storm water detention llaains lli.bc1 storm drainaq• lin-granted by Consolidated Bdiacm eoapeny of New York, Inc. to Robert Martin Collrpany dated March 12, 1 981 ani1 recorded April 1.., 1981 in Li7693 of deeds at paqe 628. TOGE'l'HER with the provisions of eaa-nts for ingress ancl egress, dra qe syatems, sewer aystalu and water sys"telll set forth in the declarations dated 7/30/81, and recorded 8/5/81 in Liber 7716 ep 70.. as amended by instrwleut datad 8/Z0/81, recoraed 8/21/81 i.n Liber 7720 Cp 558. . . TOGETHER with the ·J:Hmefits of tbe sewer eaa-.nt granted by ·the CoWlty of 1featabester to Robert Hartin CCIIIIpany dated October 10, 1980 and recorded October 15, 1980 in I·iber 7658 · Cp 364 a:nd au depictad on Piled Map No.20309. · Policy insures that the prem:i.&ea hereinabove deacrit.d (the insured pralllisea ) ia contiguoua with Skyline Drive west which is in .turn to Skyline Drive which is in turn contiquous with the c-•o41n1t1i1g1uUoltus granted by Consolidated Edison to Martin company Robert recorded in t.ibo.!r 7693 Cp 610. 135

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EXHIBIT A-46

 

INTENTIONALLY DELETED

 

136


 

EXHIBIT A-47 11 SKYLINE DRIVE ALL that certain piece or parcel of land, situate, lying and being in the Town of Mt. Pleasant, County of Westchester and state of New York, a. .beinq more Par:ti'7'1larly bounded and described as follows: . . BEGINNING at a point formed by the intersection of the center line of a 50.00 foot wide Right of Way and the division line between property of the County of Westchester and ParJ:I, as shown on "Subdivision Map prepared for corham Artificial Plower co., Inc.", dated June 20, 1973, prepared by ward carpenter Engineers Inc., and filed in WestchesterCountyClerk's Office (Division of Land Records) November 9, 1973, as County Clerk Map No. 18087, said point of beqinning being distant easterly 289.02 feet, as measured along said division line on a course of south 73 degrees 06 1 43" East from the site of a 11onum.ent at the intersection of said division line and the easterly side of Saw Mill River Road; RONNING'l'BENCEfromsaid point of beginning in anortherly direction along the canter line of a 50.00 foot wide Right of Way and the westerly side of the herein described parcel, North 19 degrees 05' 39" East, 60.04 feet to a point; THENCE on a curve to the right havi.ng a radius of 250.00 feet, a delta angle of 37 degrees 31 1 42", an arc length of 163.75 feet to a point of tangency; '!'HENCE North 56 degrees 37 1 21" Bast, 167.97 feet to a point; THENCE on a curve to the left havinq a radius of 175.00 feet, a delta angle of 38 degrees 47' 1911 , an arc length of 118.47 feet to a point of tangency; '!'HENCE frOJII the center line of the aforesaid SO.00 foot wide Right of Way in an easterly direction alonq the follow courses and distances: 1. 2. 3. 4. South 72 degrees 10' OO" East 77.96 feet; North 41 degrees 21' 08" East 51.07 feet; South 48 degrees 38 1 51" East 230.00 feet; and South 41 degrees 22' 40" West 437.71 feet to a point and the division line between property of the County of Westchester and Parcel No. II, as shown on tho aforesaid county Clerk Map No•. 18087; THENCE in a westerly direction along said division line: 1·. North 73 degrees 06 1 13" west 326.19 feet; and 2.· · North 73 deqrees. 0643" West 8.44 feet to a point and the intersection of said division line and the southerly end of a 50.00 foot wide Right of Way, the point or place of BEGZNHING. 137

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EXHmiT A-48 12 SKYLINE DRIVE · All that certain pl<ce or parcel of land situate, lying and bei"ll in lbe T Cowuy of Westchester and S1au of New York, and being more pmticularly bounded and cGenbcd as folloWJ: . BEGINNING at a point oo the ccntcrlinc·or a SO foot wick 1\iaht-<>f-Way, said point beiDa. nonbcrly 9S2.48 feet, as me&SUI<d alona the centerline of said Rjgbl-<>f·Wey, the following oounn and diSI8nees from its intersection with the division line between property of the County of Wcstcbcller and P :el U.as shown on a map entitled "Subdivision Map pre for Codwn Artificial Flo..,. Co. Inc.• dated June 20, 1913, prepnd by Wan! Calpc:ntcr Eogineen, Inc. and filed on November 9, 1973, in the Westchester County Clerk's Office (Division of Land Rcc:ads) as Mop No. 18087, North 19" OS' 39' East60.04 feet 10 a point of curvatan:; . THENCE oo a curve 10 the right having a rodius.of250.00 feean an: length of 163.75 feet 10 a point of tangenoy; THENCE North 56•3T 21"East 167.97 feet to a point of curvature; THENCE on a cUrve 10 the left having a radius of 17S.OO feet, an arc leogth of 111.47 feet10 point of tangency, THENCE North 17" SO' 02" East 27S.24 feet10 a point of c:urvalllre; THENCE on a curve to the right having a radius of 200.00 fccan arc length of 85.62 ,. fcctiO a point oftingcncy; TBENci: Nonll4:1" Zl' 49" East 81.39 feet to said point of bcginning; said latter point of beginnins on the division line between pcopcrt}' of the County of Westchester and Pan:el 11 on said filed M8p No.18081,being clislant easterly 289.02 feet as mcasuredolong said division line on a course of Soulh 73'06' 43" East from its intersection with the easterly sick of Saw M111 RJvcr Road, said latter point bcina the site of a mon11l\1eot; RUNNING TIIJlNCE from said poiDl of besinnin1 over and across propcny of the County of Westcbcstcr North 4&-38' os• West 79.42 feet, North Js• 32' ss• Wc:ot 111.89 feet, and North.4SO JT 20' West 100.00 feet 10 a point oo the division line between popaty now or fOI'IIWiy the County of Westcbcster and pope.ty now or formerly Collsolidated f-.dioon of New Yorlc; 138

GRAPHIC

 

THENCE along said division line North·4t• 22' 40' East 271.00 feet to a point on the division line between property now or fonnerly Mid·Westcbcsler Realty Assoeiales L.P. (formerly Robert MlrtinConipaoy);' 111ENCE along said division line South 74• 54' 35" East 82.85 feet, South 74• 36' 47" East 307.23 feet, Mid South 76• 24' 12' East 90.46 f•"et to aj>oinl oa tbc ocnu:rline'of a SO foot wide Ril!ht,-ofW. ay; THENCE al011g tbc ocnterlinc of said SO foot wide RisJtt-of-Way on a cUM! to the risJtt having a ..diu.s of 175.00 fact, an arc leng1h of54.00 feet to a point of tangency; 111ENCE Southno 15' to• West 131.98 feet to a point of curvature; THENCE oa a curve to tbc left baviJlg a nodiu.s of 175.00 feet, 14 azc length of91.29 feet , to apoint .oftangency mENCESouth42"21' 49" West 21M8 feet to tbc point and pillceofBEGINNINC. 139

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EXHIBIT A-49 15 SKYLINE DRIVE ALL that certain piece or parcel of land, situate, lying and beinq in the Town of Mt.Pleasant,County of Westchester and State of Hew York,ad beinq more paz:'ti larly bounded and deacribed as follows: BEGINNING at a point on the canter line of a 50.00 foot wide Right of Way1 said point beinq distant northerly 510.23 feet, as aeasured along the center line of said Right of way, the following courses and distances from its intersection with the division line between property of the County of Westchester and Parcel II, as shown on "Subdivision Map prepared for corham Artificial Flower Co., Inc." dated June 20, 1973, prepared by Warcl carpenter Enqineers Inc.and filed in the Westchester County Clerk's Office (Division of Land Records)November 9, 1973, as county Clerk Map No.18087, North 19 degrees OS' 39" East, 60.04 feet; RUNNING THENCE on a curve to the right having a radius of 25D.OO feet, a delta angle of 37 degrees 31 1 42", an arc length of 163.75 feet to a point of tangency; THENCE North 56 degrees 371 21•East, 167.97 feet; THENCE on a curve to the left having a radius of 175.00 feet, a delta angle of 38 degrees 47 1 19",an arc lenqth of 118.47 feet the point of beginning of the within described parcel;the point on the division line between Parcel II and property of the County of Waatchaster aa shown on said County Clerk Map No.18087 1 also baing distant easterly, 289.02 feet, as measured alonq·said division line on a course of South 73 degrees D6' 43" East from the site of a monwaent at the intersection of said division line and the easterly side of saw Mill River Road; · THENCE from said point of beginning a northerly direction along the center line of a 50.DO foot wide Right of·Way, the following courses and distances: 1.North 17 degrees 50'02East, 275.24 feet to a point. THENCE on a curve to the right a radius of 2DD.OO feet, a delta angle of 24 degrees 31'47", an arc length of 85.62 feet to a point of tangency; a point; courses and 49" East, 114.90 feet to THENCE North 42 degrees 21' directionthefollowing THENCEin an easterly distances: 1. south 48 degrees 38' 08" East 244.59 feet; 34.13 feet; 2.south 41 degrees 21' 52" west 3.SOuth 48 degrees 361 08" East 181.43 feet; and south 41 degrees 22' 40" West 334.09 feet; 4. 'l'HENCE in a westerly direction: 1. North 48 degrees 38 1 51" West 230.00 feet; 2.south 41 degrees 21'OB" West51.07 feet; and 3. North 72 degrees 10'DO" West 77.96 teet to a point and the center line of a 50.00" foot wide Riqbt of Way, the point and place of BEGINNING. 140

GRAPHIC

 

EXIDBIT A-50 17 SKYLINE DRIVE ALL that certain piece or parcel of land, situate, lying and being in the Town ot Mt.I>leasant, County of' Westchester and state of N•w York, an...d .being more partic.ularly bounded and dascribe.d asfollows: BEGINNING at a point on the.center line of a so.oo foot wide Right of Way, said point beiJ19 distant northerly 98!5.99 feet, as measured along the center line of said Right of Way, the following 'cour•es and distances from its intersection with the division line between property of the county of West ester and Parcel II, as shown on "Subdivision Map prepared for Corham Artificial Flower co., Inc.• dated June 20, 1973, prepared by Ward Carpenter Engineers Inc. and filed·in the Westchester County Clerk's Office (Division of Land Records) November 9, 1973, as county Clerk Map No. 18087, North 1i degrees 051 39" East, 60.04 feat; RUNNXNG THENCE on a curve to the right having a radius of 250.00 feet, a delta angle of 37 degrees 31'42", an arc lenqth of 163,75 feet to a point of tangency; TBENCE North 56 degrees 37'21" East 167.97 feet; THENCE on a curve to the left havinr; a radius of 175;oo feet, a delta angle of 38 degrees 47'19", an arc length of 118.47 feet to a point of tangency; THENCE North 7 degrees 50 02" East 275.24 feet to a point; 1 THENCE on a curve to the right having a radius or 200.00 feet, a delta angle of 24 deqrees 31 1 47", an arc length of 85.62 feet to a oint of tangency; THENCE North 42 degrees 211 49" East 114.90 feet to a point, the point of beginning of the within deaeribed parcel;the point on the division line between Parcel II and property of the county of westchester, as shown on said County Clark Map No. la087, also . beingdistant ea&terly, 289.02feet,ae measuredalong said division line on a course of south 73 degrees 06 1 43" East from its intersection with the easterly side·of Saw Mill River Road, said latter point being the site of a monument; 141

GRAPHIC

 

THENCE northeasterly from said point of beqinning along the center line of & 50.00 foot wide Right of Way, the following courses and distances: 1·. Rorth 42 degrees 21·'21" East 183.47 feet to a point; THENCE on a curve to the ri11ht having a radil.as of 175.00 feet, a delta angle of 29 deqrees 53' 49", an arc lenqth of 92 . 29 feet to a point of tanqenc::Y; THENCE North 72 deqrees 15 1 10" East 181.98 feeti THENCE on a curve to the left bavinq a radius of 175.00 feet, a delta angle of 17 degree 40 1 44", an arc lenqth of 54.00 feet to a point and the division line between Lot 10 and property of the County of Westchester, ae sbown on Map of Property prepared for Robert Martin company" dated June 3, 1981with subsequent rev.isions preparedbyWard carpenter EngineersInc.and filed inthe Westchester county Clerk••Offica (t>ivision of Land Rec::ord.s) August 14,1981,asMapNo. 20691;and :beinqidentically shown on 'Subdivision Map · preparedf orRobertMArtinCOmpany•dated September 11, 1993, prepared by Ward Carpenter Engineers Inc. and filed in the westchester county clerk's Office (Division of Land Records) May.9, 1984 as Map No. 2 547 THENCE in an easterly direction alonq said division line, South 76 degrees 24' 12" East 71.66 feet to a point;. THENCE the followinq courses and distances: degrees 447.68 f eet; 54 .57 f eet; 1. 2. 3. 4. s. south 1 461 40" West 40" West South 41 deqrees 221 North 48 degrees North 41 degrees 36 ' 08" West feet; 181.43 34.13 teet; and 21'52" East North 48 cieqreea 38 1 OS" West 244.59 feet to a point and the the center line of a so.oo foot wide Right of Way, point end place of BEGINNING. 142

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EXHIBIT A-51 200 SAW MILL RIVER ROAD EXHIBIT A-51 200 SAW MILL RIVER ROAD All that certain plot, piece or parcel of land situate, lying and being in the Town of Mt. Pleasant, County of Westchester and State of New York, shown as Lot Number 8 on a certain map entitled, “Subdivision Hap Prepared for Robert Kartin Properties, Inc., situated in Hawthorne, Town of Mt. Pleasant, Westchester County, N.Y.”, made by Chas, H.Sells, Inc., surveyors, dated October 30, 1969 and revised Kerch 3D, 1973 and filed in the Westchester County Clerk’s office, Division of Land Records on April 25, 1973 as Hap He. 17971, being more particularly bounded and described as follows: BEGINNING at a point on the easterly side of the highway leading from Hawthorne to Tarrytown known as Saw Mill River Road where the same is intersected by the southerly line of Lot 37 now shown on Map of Joshua M. Sprague Subdivision filed in the office of the County Clerk, Division of Land Records, formerly Register’s office of Westchester County as Map Number 1659; THENCE RUNNING along the southerly line of said Lot 37 and continuing along Lot 38 as shown on said subdivision map, South Si degrees 02’ 24* East 280.89 feet to a point in the southerly terminus of Rutledge Avenue; SUNNING THENCE in a general southerly direction through other lands of Robert Martin Properties, Inc., the following six (6) courses and distances: South 07 degrees 38* 09* West   31.00 northerly line of a certain map entitled, Hap Section 2 Bradhurst Manor*; 1, 2, 3. 4. 5. 6. South 10 degrees 24* South 78 degrees 27* South 00 degrees 52* North 89 degrees 07* South 30 degrees 30* 57” East 123.41 feet; 59” East 82.21 feet; 16” West 301.87 feet; 44” West 27*00 feet? 13* West 127.08 feet; and feet to the “Subdivision RUNNING THENCE westerly and along said northerly line of said Map No. 10610, North 81 degrees 58* 49* West 346.00 feet to the aforesaid easterly side of Saw Kill River Road; and 143

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RONNING THENCE northerly anc:i alonq aai.d easterly side of Saw Kill River Road, the followinq two {2) courses and distances: 1. 2. North 10 deqreea 58.'11" East 123.08 feet; North 04 degrees 55' 1" East 455.79 feet or place of BEGINNING. and to the point 144

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EXHIBIT A-52 240 WHITE PLAINS ROAD ALL that certain piece or parcel of land, situate, lying and being located in the Village of Tarrytown, Town of Greenburgh, County of Westchester, State of New York being more particularly bounded and described as follows: BEGINNING at a point fom1ed by the southerly side ofTarrytown White Plains Road/Route 1 19 (as widened) and the easterly side of Meadow Street as shown on a certain map entitled "New York State Department of Transportation Description and Ma p for the Acquisition of Property" filed in the Westchester County Clerk's Office (Division of Land Records) on May I , 1993 as Map No. 24132; RUNNING THENCE along the southerly side of Tarrytown White Plains Road/Route 1 19 (as widened) the following courses and distances:North 80 degrees I 0 minutes 32 secondEast, 122.00 feet; THENCE on a curve to the left having a radius of 1746.59 feet, an arc length of 121.17 feet to a point; THENCE South 5 degrees 50 minutes 59 secondEast, 1 .50 feet; THENCE on a curve to the left having a radius of 101 1 .50 feet, an arc length of 174.16 feet to a point; THENCE North 74 degrees 08 minutes 37 seconds Eat.224.06 feet to a point; THENCE on a curve to the right having a radius of 1704.50 feet, an arc length of I 09.02 feet to a point; THENCE South 12 degrees 13 minutes 03 seconds Eat. 1 .50 feet to a point; THENCE North 79 degrees 02 minutes 45 seconds Eat.75.23 feet, North 76 degrees 31 min utes 23 seconds East, 74.40 feet to a point on the easterly side of Lot I as shown on a map entitled "Talleyrand Subdivision Map" prepared by Ward Carpenter Engineers, Inc.dated March 29, 1 982 and filed in the Westchester County Clerk's Office (Division of Land Records) on April 29, 1982 aMap No. 20901; RUNNING THENCE alutg the easterly side of Lot I South 7 degrees 54 min utes 19 seconds East, 9.07 feet to a point on the southerly side of Tarrytown White Plains Road (Route 1 19)as widened; THENCE North 77 degrees 12 minutes 56 seconds Eat 22.14 feet to a point on the ea terly side of the herein described parcel; THENCE on a curve to the left having a radius of25.00 feet, an arc length of 15.00 feet to a point; THENCE South 7 degrees 09 minutes 55 seconds East, 67.38 feet to a point; THENCE on a curve to the left having a radius of 120.00 feet, an arc length of 67.96 feet to a point; THENCE South 39 degrees 36 minutes 48 seconds Eat.74.25 feet; 145

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THENCE South 34 degrees 31 minutes 39 seconds East, 45.65 feet; THENCE on a curve to the right having a radius of 185.00 feet, an arc length of 196.58 feet; THENCE South 26 degrees 21 minutes 21 seconds West, 448.37 feet, North 63 degrees 38 min utes 39 seconds West, 309.24 feet, South 26 degrees 21 minutes 21 seconds West, 86.32 feet, North 63 degrees 38 minutes 39 seconds West, 347.86 feet, North 83 degrees 29 minutes 04 seconds West, 53.48 feet to a point on the easterly side of Meadow Street; THENCE along the easterly side of Meadow Street North 18 degrees 38 min utes 39 seconds West,438.71 feet to the southerly side ofTarrytown White Plains Road (Route 1 19) awidened as shown on the aforesaid filed Map No. 24132, the point and place ofBEGINN!NG. J::XCJ::I'TINU THJ::Ktl'KUM so much of the premises that was conveyed to H'Y2 Talleyrand, LLC by Deed dated aof A ugust 12, 2014 and recorded on September 3, 2014 under Control No.542153008. 146

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EXHIBIT B

 

ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS, LICENSES AND PERMITS

 

THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS, LICENSES AND PERMITS (this “Assignment”) is made as of                   , 20   by and between                    , a limited liability company organized under the laws of the State of New York, having an office located at c/o Mack-Cali Realty Corporation, Harborside 3, 210 Hudson Street, Suite 400, Jersey City, New Jersey 07311 (“Assignor”), and                      , a                            , having an office located at                          (“Assignee”).

 

W I T N E S S E T H:

 

WHEREAS, Assignor is the owner of real property commonly known as             ,                , New York (the “Property”), which Property is affected by certain service agreements, maintenance contracts, equipment leasing agreements, warranties, guarantees, bonds, construction contracts, open purchase orders and other contracts for the provision of labor, services, materials or supplies relating solely to the Property, as set forth on Exhibit A attached hereto and made a part hereof (hereinafter collectively referred to as the “Contracts”);

 

WHEREAS, Assignor has entered into that certain Agreement of Sale and Purchase (the “Sale Agreement”), dated                   , 20  , with Assignee, wherein Assignor has agreed to convey to Assignee all of Assignor’s right, title and interest in and to the Property;

 

WHEREAS, Assignor desires to assign to Assignee, to the extent assignable, all of Assignor’s right, title and interest in and to: (i) the Contracts and (ii) all licenses, permits, certificates of occupancy, approvals, authorizations, variances, consents, dedications, subdivision maps and entitlements in connection with the Property now or hereafter issued, approved or granted by any governmental or quasi-governmental bodies or agencies having jurisdiction over the Property or any portion thereof, together with all renewals and modifications thereof (collectively, the “Licenses and Permits”), and Assignee desires to accept the assignment of such right, title and interest in and to the Contracts and Licenses and Permits and to assume Assignor’s rights and obligations thereunder.

 

NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained and for other good and valuable consideration, the parties, intending to be legally bound, do hereby agree as follows:

 

1.                                      Assignor hereby assigns, sells, transfers, and sets over to Assignee, its successors and assigns, to the extent assignable as of the date hereof, all of Assignor’s right, title and interest in and to the Contracts.  Assignee hereby accepts the foregoing assignment and transfer and agrees to assume, fulfill, perform and discharge all the various commitments, obligations and liabilities of Assignor under and by virtue of the Contracts from and after the date hereof.

 

2.                                      Assignor hereby assigns, sells, transfers, and sets over to Assignee, its successors and assigns, to the extent assignable, all of Assignor’s right, title and interest in and to the Licenses and Permits, and Assignee hereby accepts such assignment, sale and transfer from and after the date hereof.

 

3.                                      Assignee hereby agrees to indemnify and hold Assignor harmless from all loss, expense or liability (including, without limitation, reasonable attorneys fees and disbursements) relating to the Contracts and Licenses and Permits accruing from or after the date hereof, and Assignor hereby agrees to indemnify and hold Assignee harmless from all loss, expense or liability (including, without limitation,

 

147


 

reasonable attorneys fees and disbursements) relating to the Contracts and Licenses and Permits accruing prior to the date hereof.

 

4.                                      This Assignment is made without representation, warranty (express or implied) or recourse of any kind, except as may be expressly provided herein or in the Sale Agreement.

 

5.                                      This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.  This Agreement shall be governed by, and construed under, the laws of the State of New York.

 

6.                                      This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original Assignment, but all of which shall constitute but one and the same Assignment.

 

7.                                      Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Sale Agreement.

 

IN WITNESS WHEREOF, Assignor and Assignee do hereby execute and deliver this Assignment as of the date and year first above written.

 

 

ASSIGNOR:

 

 

 

 

 L.L.C.

 

By:                   , its sole member

 

By:                   , its general partner

 

 

 

By:

 

 

Gary T. Wagner, General Counsel

 

 

 

 

 

ASSIGNEE:

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

148


 

Exhibit A

 

Contracts

 

149


 

EXHIBIT C

 

ASSIGNMENT AND ASSUMPTION OF LEASE OBLIGATIONS

 

THIS ASSIGNMENT AND ASSUMPTION OF LEASE OBLIGATIONS (this “Assignment”) is made as of                   , 20   by and between                           , a limited liability company organized under the laws of the State of New York, having an office located c/o Mack-Cali Realty Corporation, Harborside 3, 210 Hudson Street, Suite 400, Jersey City, New Jersey 07311 (“Assignor”), and                 , a                   , a                 , having an office located at               (Assignee).

 

W I T N E S S E T H:

 

WHEREAS, the property commonly known as            ,         , New York (the “Property”) is affected by certain leases and other agreements with respect to the use and occupancy of the Property, which leases and other agreements are listed on Exhibit A annexed hereto and made a part hereof (the “Leases”);

 

WHEREAS, Assignor has entered into that certain Agreement of Sale and Purchase (“Agreement”) with Assignee dated                    , 20  , wherein Assignor has agreed to assign and transfer to Assignee all of Assignor’s right, title and interest in and to (i) the Leases, (ii) all security deposits paid to Assignor, as landlord (together with any interest which has accrued thereon, but only to the extent such interest has accrued for the benefit of the tenant), to the extent such security deposits have not yet been applied toward the obligations of any tenant under the Leases, which security deposits are listed on Exhibit B annexed hereto and made a part hereof (“Security Deposits”), and (iii) the Leasing Commission Agreements entered into in connection with the Leases, which leasing commission agreements are listed on Exhibit C annexed hereto and made a pert hereof (the “Leasing Commission Agreements”);

 

WHEREAS, Assignor desires to assign to Assignee all of Assignor’s right, title and interest in and to the Leases, Security Deposits, and Leasing Commission Agreements, and Assignee desires to accept the assignment of such right, title and interest in and to the Leases, Security Deposits, and Leasing Commission Agreements and to assume all of Assignor’s rights and obligations under the Leases, with respect to the Security Deposits, and under the Leasing Commission Agreements.

 

NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained and for other good and valuable consideration, the parties intending to be legally bound, do hereby agree as follows:

 

1.                                      Assignor hereby assigns, sells, transfers, sets over and conveys to Assignee, its successors and assigns, all of Assignor’s right, title and interest in and to (i) the Leases, (ii) Security Deposits, and (iii) the Leasing Commission Agreements.  Assignee, from and after the date hereof, hereby accepts this assignment, sale, transfer and conveyance and agrees to assume, fulfill, perform and discharge all the various commitments, obligations and liabilities of Assignor under and by virtue of the Leases, including but not limited to the obligation to properly maintain, apply and return the Security Deposits in accordance with terms and conditions of the Leases, and under the Leasing Commission Agreements.

 

2.                                      Assignor hereby agrees to defend, indemnify and hold harmless Assignee from any liability, damages, causes of actions, out-of-pocket expenses and reasonable attorneys’ fees incurred by Assignee by reason of the failure of Assignor to fulfill, perform and discharge all of the various commitments, obligations and liabilities of Assignor under and by virtue of the Leases, Security Deposits and Leasing Commission Agreements with respect to the period of Assignor’s ownership prior to the

 

150


 

effective date hereof, including, without limitation, the return of Security Deposits and the payment of brokerage commissions relating thereto.

 

3.                                      Assignee hereby agrees to defend, indemnify and hold harmless Assignor from any liability, damages, causes of actions, out-of-pocket expenses and reasonable attorneys’ fees incurred by Assignor by reason of the failure of Assignee to fulfill, perform and discharge all of the various commitments, obligations and liabilities of Assignee under and by virtue of the Leases, Security Deposits and Leasing Commission Agreements assigned hereunder from and after the effective date hereof, including, without limitation, the return of Security Deposits and the payment of brokerage commissions relating thereto.

 

4.                                      This Assignment is made without representation, warranty (express or implied) or recourse of any kind, except as may be expressly provided herein or in the Agreement.

 

5.                                      This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.  This Assignment shall be governed by, and construed under, the laws of the State of New York.

 

6.                                      This Assignment may be executed in one or more counterparts, each of which shall be deemed to be an original Assignment, but all of which shall constitute but one and the same Assignment.

 

7.                                      Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement.

 

IN WITNESS WHEREOF, Assignor and Assignee do hereby execute and deliver this Assignment as of the date and year first above written.

 

 

ASSIGNOR:

 

 

 

 

 L.L.C.

 

By:                      , its sole member

 

By:                      , its general partner

 

 

 

By:

 

 

Gary T. Wagner, General Counsel

 

 

 

 

 

ASSIGNEE:

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

151


 

Exhibit A

 

Description of Leases

 

152


 

Exhibit B

 

Security Deposits

 

153


 

Exhibit C

 

Leasing Commission Agreements

 

154


 

EXHIBIT D

 

BILL OF SALE

 

, a New York limited liability company (“Seller”), for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby grants, bargains, sells, transfers and delivers to                       , a                       (“Buyer”), all of Seller’s right, title and interest in and to all equipment, appliances, tools, supplies, machinery, artwork, furnishings, any construction documents, “as built” plans and specifications and floor plans for the existing improvements and landscape plans, surveys, environmental site assessments and warranties relating to and only to the extent reflecting current conditions at the Real Property (but specifically excluding any such items which may have been prepared for or identify potential capital improvements or development), and other tangible personal property attached to, appurtenant to, located in and used exclusively in connection with the ownership or operation of the real property commonly known as                , New York (the “Real Property”) and situated at the Real Property on the date hereof, but specifically excluding all personal property leased by Seller or owned by tenants or others, if any (the “Personal Property”), to have and to hold the Personal Property unto Buyer, its successors and assigns, forever.

 

Seller makes no representation or warranty to Buyer, express or implied, in connection with this Bill of Sale or the sale, transfer and conveyance made hereby, except as may be set forth in that certain Agreement of Sale and Purchase, dated February   , 2019 and entered into by and among Seller, and RMC Acquisition Entity, LLC.

 

EXECUTED under seal this       day of             , 20  .

 

 

 

L.L.C.

 

 

 

By:                       , its sole member

 

By:                       ,its general partner

 

 

 

By:

 

 

Gary T. Wagner, General Counsel

 

155


 

EXHIBIT D-1 MOTOR VEHICLES 156

GRAPHIC

 

 

EXHIBIT E

 

ASSIGNMENT AND ASSUMPTION OF GROUND LEASE AGREEMENT

 

THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE AGREEMENT (this “Assignment”) is made as of                   , 20   (the “Effective Date”) by and between                           L.L.C., a limited liability company organized under the laws of the State of New York, having an office located c/o Mack-Cali Realty Corporation, Harborside 3, 210 Hudson Street, Suite 400, Jersey City, New Jersey 07311 (“Assignor”), and                 , a                   , having an office located at                       (Assignee).

 

W I T N E S S E T H:

 

WHEREAS, Assignor is the tenant under that certain lease [INSERT RESPECTIVE GROUND LEASE DESCRIPTION FROM PSA] (collectively, as amended and assigned, the “Ground Lease”), covering that certain parcel of land in the Town of Mount Pleasant, County of Westchester, State of New York, as more particularly described in the Ground Lease, and commonly known by the address      Skyline Drive, Mount Pleasant, New York, [being Section       , Block   , Lot   , as shown on the tax map of the Town of Mount Pleasant] [as more particularly described on Exhibit A annexed hereto and made a pert hereof].

 

WHEREAS, Assignor and Assignee are parties to that certain Agreement of Sale and Purchase dated                    , 20   (“Agreement”), wherein Assignor has agreed to assign to Assignee all of Assignor’s right, title and interest in and to the Ground Lease, and Assignee has agreed to accept the assignment of such right, title and interest in and to the Ground Lease and to assume all of Assignor’s right, title and interest in the Ground Lease.

 

NOW, THEREFORE, in consideration of the sum of Ten Dollars, the mutual covenants and conditions herein contained and for other good and valuable consideration, the parties intending to be legally bound, do hereby agree as follows:

 

1.                                      Assignor hereby assigns, sells, transfers, sets over and conveys to Assignee, its successors and assigns, all of Assignor’s right, title and interest in and to the Ground Lease from and after the Effective Date.  Assignee hereby accepts the assignment, sale, transfer and conveyance of Assignor’s right, title and interest in and to the Ground Lease and agrees to assume, fulfill, perform and discharge all the various commitments, obligations and liabilities (collectively, “Obligations”) of Assignor under and by virtue of the Ground Lease arising from and after the Effective Date.

 

2.                                      Assignee hereby agrees to indemnify and hold Assignor harmless from all loss, expense or liability (including, without limitation, attorneys fees and disbursements) relating to the Obligations accruing from or after the Effective Date.

 

3.                                      Assignor hereby agrees to indemnify and hold Assignee harmless from all loss, expense or liability (including, without limitation, attorneys fees and disbursements) relating to the Obligations accruing prior to the Effective Date.

 

4.                                      This Assignment is made without representation, warranty (express or implied) or recourse of any kind, except as may be expressly provided herein or in the Agreement.

 

5.                                      This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.  This Assignment shall be governed by, and construed under, the laws of the State of New York.

 

157


 

6.                                      This Assignment may be executed in one or more counterparts, each of which shall be deemed to be an original Assignment, but all of which shall constitute but one and the same Assignment.

 

IN WITNESS WHEREOF, Assignor and Assignee do hereby execute and deliver this Assignment as of the date and year first above written.

 

 

ASSIGNOR:

 

 

 

 

 L.L.C.

 

By:                      , its sole member

 

By:                      , its general partner

 

 

 

By:

 

 

Gary T. Wagner, General Counsel

 

 

 

 

 

ASSIGNEE:

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

158


 

EXHIBIT F

 

Service Contracts

 

Contractor

 

Service

 

Owner

 

Agreement
Date

 

Month-to-
Month

 

Applies to

 

Contract
#

A&A Maintenance Enterprise, Inc.

 

Handyman Services

 

Entities listed on Exhibit B

 

June 6, 2017

 

No

 

CWEP - All Buildings

 

17-026

A&A Maintenance Enterprises, Inc.

 

Matron and Janitorial

 

3 Odell Realty L.L.C.

 

January 19, 2018

 

Yes

 

SWEP - 3 Odell Plaza Only

 

18-007

ABM Air Conditioning & Heating, Inc.

 

HVAC Maintenance

 

Entities listed on Exhibit B

 

October 9, 2015

 

Yes

 

MWEP - 4, 5, 6, 8, 10, 11, 12, 15 Skyline Drive and 200 Saw Mill Rd Only

 

15-072

ABM Air Conditioning & Heating, Inc.

 

HVAC Maintenance

 

Entities listed on Exhibit B

 

October 12, 2015

 

Yes

 

CWEP - All Buildings

 

15-074

ABM Air Conditioning & Heating, Inc.

 

HVAC Maintenance

 

Mid-Westchester Realty Associates L.L.C.

 

July 22, 2016

 

No

 

MWEP - 17 Skyline Drive Only

 

16-088

ABM Air Conditioning and Heating, Inc.

 

HVAC Maintenance

 

So. Westchester Realty Associates L.L.C. and Mack-Cali So. West Realty Associates L.L.C.

 

October 26, 2015

 

Yes

 

SWEP - 1, 5, and 7 Odell Plaza, 4 and 6 Executive Plaza, 100 and 200 Corporate Blvd Only

 

15-089

ABM Air Conditioning and Heating, Inc.

 

HVAC Maintenance

 

Mack-Cali CW Realty Associates L.L.C.

 

January 31, 2018

 

No

 

CWEP - 101 Executive Blvd Only

 

18-011

ABM Air Conditioning and Heating, Inc.

 

HVAC Maintenance - Annual

 

3 Odell Realty L.L.C.

 

December 15, 2017

 

No

 

SWEP - 3 Odell Plaza Only

 

17-043

ABM Air Conditioning and Heating, Inc.

 

HVAC Maintenance (AVR Realty Associates)

 

Mack-Cali So. West Realty Associates L.L.C.

 

April 1, 2018