Exhibit
10.2


 


Execution Version


 


STOCK PURCHASE AGREEMENT


 


by and among


 


CPPIB REI US RE-5, INC.


 


as Buyer


 


and


 


GREEN HILL ACQUISITION LLC


 


as Seller


 


Dated:  May 6, 2010


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I Definitions and
  Rules of Construction

  	
   

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.1.

  	
  Definitions

  	
   

  	
  2

  
	
  1.2.

  	
  Rules of Construction

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II Purchase and Sale

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1.

  	
  Closing

  	
   

  	
  11

  
	
  2.2.

  	
  Purchase and Sale

  	
   

  	
  11

  
	
  2.3.

  	
  Payments at the Closing; Deposit

  	
   

  	
  11

  
	
  2.4.

  	
  Purchase Price Adjustment

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III Representations and
  Warranties of the Seller

  	
   

  	
  13

  
	
   

  	
   

  	
   

  
	
  3.1.

  	
  Organization and Power

  	
   

  	
  13

  
	
  3.2.

  	
  Authorization and Enforceability

  	
   

  	
  14

  
	
  3.3.

  	
  No Violation; Consents

  	
   

  	
  14

  
	
  3.4.

  	
  Capitalization and Organization of the Company

  	
   

  	
  15

  
	
  3.5.

  	
  Financial Statements and Books and Records; Absence of
  Certain Changes or Events

  	
   

  	
  16

  
	
  3.6.

  	
  Litigation

  	
   

  	
  16

  
	
  3.7.

  	
  Taxes and Tax Matters

  	
   

  	
  17

  
	
  3.8.

  	
  Real Estate

  	
   

  	
  17

  
	
  3.9.

  	
  Debt

  	
   

  	
  18

  
	
  3.10.

  	
  Board of Directors

  	
   

  	
  19

  
	
  3.11.

  	
  Company Investments

  	
   

  	
  19

  
	
  3.12.

  	
  OFAC

  	
   

  	
  19

  
	
  3.13.

  	
  No Brokers

  	
   

  	
  19

  
	
  3.14.

  	
  Environmental

  	
   

  	
  19

  
	
  3.15.

  	
  Disclaimer

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV Representations and
  Warranties of Buyer

  	
   

  	
  21

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  Organization and
  Power

  	
   

  	
  21

  
	
  4.2.

  	
  Authorization
  and Enforceability

  	
   

  	
  21

  
	
  4.3.

  	
  No Violation

  	
   

  	
  22

  
	
  4.4.

  	
  Litigation

  	
   

  	
  22

  
	
  4.5.

  	
  Financial
  Capacity

  	
   

  	
  22

  
	
  4.6.

  	
  No Brokers

  	
   

  	
  22

  
	
  4.7.

  	
  Investment
  Intent

  	
   

  	
  22

  
	
  4.8.

  	
  Non-Controlling
  Interest

  	
   

  	
  22

  
	
  4.9.

  	
  Investigation

  	
   

  	
  22

  



 

















 


	
  4.10.

  	
  OFAC

  	
   

  	
  23

  
	
  4.11.

  	
  Taxes

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V Covenants

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1.

  	
  Conduct of the Company

  	
   

  	
  23

  
	
  5.2.

  	
  Certain Tax Matters

  	
   

  	
  24

  
	
  5.3.

  	
  Non-Solicitation

  	
   

  	
  25

  
	
  5.4.

  	
  Public Announcements

  	
   

  	
  25

  
	
  5.5.

  	
  Commercially Reasonable Efforts

  	
   

  	
  25

  
	
  5.6.

  	
  [INTENTIONALLY OMITTED]

  	
   

  	
  25

  
	
  5.7.

  	
  Estoppels

  	
   

  	
  25

  
	
  5.8.

  	
  Damage and Destruction

  	
   

  	
  26

  
	
  5.9.

  	
  Condemnation

  	
   

  	
  27

  
	
  5.10.

  	
  Required Amendments

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI Conditions to Closing

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  6.1.

  	
  Conditions to All Parties’ Obligations

  	
   

  	
  29

  
	
  6.2.

  	
  Conditions to Seller’s Obligations

  	
   

  	
  30

  
	
  6.3.

  	
  Conditions to Buyer’s Obligations

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII Deliveries by Seller
  at Closing

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  7.1.

  	
  Officer’s Certificate

  	
   

  	
  32

  
	
  7.2.

  	
  Resignations

  	
   

  	
  32

  
	
  7.3.

  	
  Share Certificates and Stock Power

  	
   

  	
  32

  
	
  7.4.

  	
  ROFR Waiver and Lender Approval

  	
   

  	
  33

  
	
  7.5.

  	
  Receipt

  	
   

  	
  33

  
	
  7.6.

  	
  Books and Records

  	
   

  	
  33

  
	
  7.7.

  	
  Title Affidavit

  	
   

  	
  33

  
	
  7.8.

  	
  FIRPTA Certificate

  	
   

  	
  33

  
	
  7.9.

  	
  Required Amendments

  	
   

  	
  33

  
	
  7.10.

  	
  Further Instruments

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII Deliveries by Buyer
  at Closing

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  8.1.

  	
  Officer’s Certificate

  	
   

  	
  33

  
	
  8.2.

  	
  Closing Consideration Amount

  	
   

  	
  33

  
	
  8.3.

  	
  Further Instruments

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX Indemnification;
  Survival

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  9.1.

  	
  Expiration of Representations and Warranties

  	
   

  	
  33

  
	
  9.2.

  	
  Indemnification

  	
   

  	
  34

  



 

















 


	
  ARTICLE X Termination; Default

  	
   

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.1.

  	
  Termination

  	
   

  	
  38

  
	
  10.2.

  	
  Procedure and Effect of Termination

  	
   

  	
  38

  
	
  10.3.

  	
  Default

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI Miscellaneous

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  11.1.

  	
  Expenses

  	
   

  	
  39

  
	
  11.2.

  	
  Notices

  	
   

  	
  40

  
	
  11.3.

  	
  Governing Law

  	
   

  	
  41

  
	
  11.4.

  	
  Entire Agreement

  	
   

  	
  41

  
	
  11.5.

  	
  Severability

  	
   

  	
  41

  
	
  11.6.

  	
  Amendment

  	
   

  	
  41

  
	
  11.7.

  	
  Effect of Waiver or Consent

  	
   

  	
  41

  
	
  11.8.

  	
  Parties in Interest; Limitation on Rights of Others

  	
   

  	
  42

  
	
  11.9.

  	
  Assignability/Sale Restrictions

  	
   

  	
  42

  
	
  11.10.

  	
  Jurisdiction; Court Proceedings; Waiver of Jury Trial

  	
   

  	
  42

  
	
  11.11.

  	
  No Other Duties

  	
   

  	
  43

  
	
  11.12.

  	
  Reliance on Counsel and Other Advisors

  	
   

  	
  43

  
	
  11.13.

  	
  Counterparts

  	
   

  	
  43

  
	
  11.14.

  	
  Further Assurance

  	
   

  	
  43

  



 


EXHIBITS
AND SCHEDULES:


 


	
  Exhibit A

  	
   

  	
  -

  	
  Description of 1221 Avenue
  of the Americas Property

  
	
  Exhibit B-l

  	
   

  	
  -

  	
  Description of 151 West 48th Street
  Property

  
	
  Exhibit B-2

  	
   

  	
  -

  	
  Description of 166 West 48th Street
  Property

  
	
  Exhibit C

  	
   

  	
  -

  	
  Permitted Encumbrances

  
	
  Exhibit D-1

  	
   

  	
  -

  	
  Form of Required
  Amendment (By-Laws)

  
	
  Exhibit D-2

  	
   

  	
  -

  	
  Form of Required Amendment
  (Cert. of Incorporation)

  
	
  Exhibit E

  	
   

  	
  -

  	
  Form of Escrow
  Agreement

  
	
  Exhibit F

  	
   

  	
  -

  	
  1221 Property Monthly
  Reports

  
	
  Exhibit G

  	
   

  	
  -

  	
  Forms of Tenant Estoppel
  Certificates

  
	
  Exhibit H

  	
   

  	
  -

  	
  Form of Lender
  Estoppel Certificate

  
	
  Exhibit I

  	
   

  	
  -

  	
  Form of Title
  Affidavit

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  2.3(b)

  	
   

  	
   

  	
  -

  	
  Closing Date Statement

  
	
  Schedule
  3.4(e)

  	
   

  	
   

  	
  -

  	
  Organizational Chart

  
	
  Schedule
  3.4(f)

  	
   

  	
   

  	
  -

  	
  List of Organizational
  Documents

  
	
  Schedule
  3.8(a)

  	
   

  	
   

  	
  -

  	
  List of Leases

  
	
  Schedule
  3.8(b)

  	
   

  	
   

  	
  -

  	
  List of Security Deposits

  
	
  Schedule
  3.8(c)

  	
   

  	
   

  	
  -

  	
  List of Tenant Arrearages

  
	
  Schedule
  3.9(b)

  	
   

  	
   

  	
  -

  	
  List of Loan Documents

  
	
  Schedule
  3.10

  	
   

  	
   

  	
  -

  	
  List of Board of Directors

  
	
  Schedule
  5.7

  	
   

  	
   

  	
  -

  	
  List of Identified Tenants

  



 
















 


STOCK PURCHASE AGREEMENT


 


STOCK
PURCHASE  AGREEMENT, dated as of May 6,
2010, by and among CPPIB REI US RE-5, Inc., an Ontario corporation (“Buyer”),
and Green Hill Acquisition LLC, a Delaware limited liability company (“Seller”).


 


RECITALS


 


WHEREAS,
Seller owns beneficially and of record forty-five percent (45%) of the issued
and outstanding common stock of Rock-Green, Inc., a New York corporation
(the “Company”), par value $2.00 per share (the “Total Common Stock”,
and Seller’s share of the Total Common Stock, “Seller’s Common Stock”);


 


WHEREAS,
Rockefeller Group International, Inc., a New York corporation (“RGI”),
owns beneficially and of record fifty-five percent (55%) of the issued and
outstanding Total Common Stock;


 


WHEREAS,
RGI and Seller have entered into that certain Shareholders’ Agreement, dated as
of December 29, 2003 (the “Shareholders’ Agreement”), which sets
forth the rights and obligations of RGI and Seller to each other and to the
Company;


 


WHEREAS,
the Company is the (i) sole equity member of 1221 Avenue Holdings LLC, a
Delaware limited liability company (“1221 Property Owner”), which is the
owner of certain real property located in New York, New York known more
particularly as 1221 Avenue of the Americas and more particularly described on Exhibit A
attached hereto and made a part hereof (such real property, together with all
improvements situated thereon being hereinafter referred to as the “1221
Property”) and (ii) owner of all of the outstanding shares of Brumas
Pembroke Inc. and Night Watch Realty Corp., each a New York corporation
(collectively, the “Other Owners;” and together with the 1221 Property
Owner, individually, each a “Property Owner” and collectively, the “Property
Owners”), each of which owns real property located in New York, New York
known more particularly as 166 West 48th Street, New York, New York (the “166
Property”) and 151 West 48th Street, New York, New York (the “151
Property” and together with the 166 Property, the “Other Property”,
and together with the 1221 Property, the “Property”), respectively, and
more particularly described on Exhibits B-1 and B-2 attached
hereto and made a part hereof;


 


WHEREAS,
it is a condition precedent to the obligation of the parties to consummate the
Contemplated Transactions (hereinafter defined) that RGI has either (i) affirmatively
waived its right of first refusal with respect to the Contemplated Transactions
pursuant to the Shareholders’ Agreement (the “Affirmative Waiver”) or (ii) has
not delivered the Acceptance (as defined in the Shareholders’ Agreement) on the
terms and conditions set forth in the Shareholders’ Agreement within thirty
(30) days after the date the Sale Notice (as defined in the Shareholders’
Agreement) was received by RGI (the “Deemed Waiver”, and together with
the Affirmative Waiver, the “ROFR Waiver”);


 


WHEREAS,
it is a condition precedent to the obligation of the parties to consummate the
Contemplated Transactions that, pursuant to that certain Amended and Restated
Credit Agreement, dated as of March 31, 2004, by and among the lenders
therein (together with the 


 

















 


administrative agent, the “Senior Lender”) and
1221 Property Owner (as amended from time to time, the “Loan Agreement”),
Seller has obtained Lender Approval (hereinafter defined) for the Contemplated
Transactions; and


 


WHEREAS,
Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, all
of Seller’s right, title and interest in and to Seller’s Common Stock, upon the
terms and subject to the conditions hereinafter set forth.


 


NOW
THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained in this Agreement, and intending
to be legally bound hereby, the parties hereto agree as follows:


 


ARTICLE I


Definitions and Rules of
Construction


 


1.1.          Definitions. 
As used in this Agreement, the following terms shall have the meanings
set forth below:


 


“151
Property” has the meaning set forth in the Recitals.


 


“166
Property” has the meaning set forth in the Recitals.


 


“1221
Property” has the meaning set forth in the Recitals.


 


“1221
Property Owner” has the meaning set forth in the Recitals.


 


“Accounting
Arbitrator” has the meaning set forth in Section 2.4(d).


 


“Affiliate”
means, as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such
Person.  For purposes of this definition,
“control” of a Person means the power, directly or indirectly, either to (a) vote
10% or more of the securities having ordinary voting power for the election of
directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.


 


“Affirmative
Waiver” has the meaning set forth in the Recitals.


 


“Agreement”
means this Stock Purchase Agreement, as it may be amended from time to time.


 


“Ancillary
Documents” means the documents being executed and delivered in connection
with this Agreement and the transactions contemplated hereby.


 


“Asbestos”
has the meaning set forth in Section 3.14.


 


“Base
Net Working Capital” has the meaning set forth in Section 2.3(c).


 


2

















 


“Basic
Company Agreements” means the certificate of incorporation of the Company,
the by-laws of the Company, and the Shareholders’ Agreement, each as may be
amended from time to time subject to any restrictions set forth in this
Agreement.


 


“Business
Day” means any day other than a Saturday, Sunday or day on which banks are
closed in New York, New York.  If any
period expires on a day which is not a Business Day or any event or condition
is required by the terms of this Agreement to occur or be fulfilled on a day
which is not a Business Day, such period shall expire or such event or
condition shall occur or be fulfilled, as the case may be, on the next
succeeding Business Day.


 


“Business
Records” means all data and records of the respective businesses of the
Company and its Subsidiaries on whatever media and wherever located.


 


“Buyer”
has the meaning set forth in the Preamble.


 


“Buyer
Indemnitees” has the meaning set forth in Section 9.2(b).


 


“Buyer Material Adverse Effect” means (i) a
material adverse effect on the ability of Buyer to consummate the transactions
contemplated hereby and fulfill its obligations hereunder or (ii) any
fact, event or circumstance that would be reasonably likely to delay in any
material respect the consummation of the transactions contemplated hereby.


 


“Buyer
Objection Notice” has the meaning set forth in Section 6.3(d).


 


“Casualty Election Date” means (x) the
tenth (10th) Business Day following Seller’s
delivery of the estimates as described in Section 5.8(b) or, (y) if
Buyer timely delivered a Dispute Notice, the tenth (10th) Business Day following final resolution of such
dispute by arbitration determination or agreement of the parties.


 


“Closing”
has the meaning set forth in Section 2.1.


 


“Closing
Consideration Amount” has the meaning set forth in Section 2.3.


 


“Closing
Date” has the meaning set forth in Section 2.1.


 


“Closing
Date Net Working Capital” means (I) (a) the sum of the total
current assets and other assets of the Company set forth on the Closing Date
Statement as of 11:59 P.M. on the date immediately prior to the Closing
Date (calculated in accordance with GAAP) 
minus (b) (i) the sum of the total current liabilities of the
Company (other than liabilities attributable to the Senior Loan) set forth on
the Closing Date Statement as of 11:59 P.M. on the date immediately prior
to the Closing Date (calculated in accordance with GAAP) and (ii) the
outstanding or unpaid tenant improvement allowances and outstanding or unpaid
leasing commissions set forth on the Closing Date Statement (without
duplication of any amounts set forth in clause (b)(i) of this definition),
and (II) any additional adjustments that appropriately reflect cash
activity as agreed to by Buyer and Seller as of 11:59 P.M. on the date
immediately prior to the Closing Date (calculated in accordance with GAAP).


 


“Closing Date Statement” has the meaning given
to it in Section 2.3(b).


 


3

















 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time, or
corresponding provisions of subsequent superseding federal revenue Laws.


 


“Company”
has the meaning set forth in the Recitals.


 


“Company
Material Adverse Effect” means any material adverse effect on the business,
operations or financial condition of the Company, its Subsidiaries and the 1221
Property taken as a whole; provided, that none of the following events,
changes, developments, effects, conditions, circumstances, matters, occurrences
or state of facts shall be taken into account in determining whether there has
been or may be a Company Material Adverse Effect: (i) any change or
development in United States financial or securities markets, general economic
or business conditions, or political or regulatory conditions, (ii) subject
to Section 5.8, any act of war, armed hostilities or terrorism, (iii) any
change or development in the real estate industry, (iv) any change in GAAP
or the interpretation or enforcement of GAAP, (v) any termination or
failure to renew by any Governmental Authority of any non-material permit or
license of the Company or its Subsidiaries, (vi) the negotiation,
execution, delivery, performance or public announcement of this Agreement
(including, without limitation, any litigation related thereto and/or any
adverse change in customer, employee, supplier, financing source, licensor,
licensee, stockholder, joint venture partner or any other similar relationships)
and (vii) any change resulting from the failure of Buyer to consent to any
acts or actions requiring Buyer’s consent under Section 5.1 of this
Agreement and for which Seller has sought such consent.


 


“Condemnation
Election Date” means (x) the tenth (10th)
Business Day following Seller’s delivery of an independent architect’s
determination as described in Section 5.9(a)(ii) or, (y) if
Buyer timely delivered a notice disputing such independent architect’s
determination, the tenth (10th) Business Day
following final resolution of such dispute by arbitration determination or
agreement of the parties.


 


“Confidentiality
Agreement” means the Confidentiality Agreement between Seller and Buyer
dated March 10, 2010.


 


“Consultant”
means all Persons who are or have been engaged as consultants by the Company or
its Subsidiaries or who otherwise provide services to the Company or its
Subsidiaries under a contractual arrangement.


 


“Contemplated
Transactions” means the transfer of Seller’s Common Stock to Buyer contemplated
by this Agreement.


 


“Contract”
means any written agreement, license, contract, arrangement, understanding,
obligation or commitment to which a party is bound.


 


“CPPIB”
means Canada Pension Plan Investment Board, a Canadian Crown corporation.


 


“Deemed
Waiver” has the meaning set forth in the Recitals.


 


“Deductible”
has the meaning set forth in Section 9.2(c)(i).


 


“Deposit”
has the meaning set forth in Section 2.3(a).


 


4

















 


“Dispute
Notice” has the meaning set forth in Section 5.8(b).


 


“Environmental
Laws” has the meaning set forth in Section 3.14.


 


“Escrow
Account” has the meaning set forth in Section 2.3(a).


 


“Escrow
Agent” has the meaning set forth in Section 2.3(a).


 


“Escrow
Agreement” has the meaning set forth in Section 2.3(a).


 


“Estimated
Closing Consideration Amount” has the meaning set forth in Section 2.3(c).


 


“Estimated
Closing Date Net Working Capital” has the meaning set forth in Section 2.3(c).


 


“Existing
Certificates” has the meaning set forth in Section 7.3.


 


“GAAP”
means generally accepted accounting principles as set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other Person as
may be approved by a significant segment of the accounting profession in the
United States.


 


“Governmental
Authority” means any nation or government, any foreign or domestic federal,
state, county, municipal or other political instrumentality or subdivision
thereof and any foreign or domestic entity or body exercising executive,
legislative, judicial, regulatory, administrative or taxing functions of or
pertaining to government, including any court.


 


“Governmental
Consents” has the meaning set forth in Section 3.3(b).


 


“Hazardous
Materials” has the meaning set forth in Section 3.14.


 


“Identified
Tenants” means the Tenants set forth on Schedule 5.7.


 


“Indemnitee”
has the meaning set forth in Section 9.2(d)(i).


 


“Indemnitor”
has the meaning set forth in Section 9.2(d)(i).


 


“Knowledge
of Buyer” means the actual conscious knowledge of any of the following
personnel of Buyer within the scope of their employment responsibilities and
without independent inquiry or investigation: 
Peter Ballon and Zachary Vaughan.


 


“Knowledge
of Seller” means the actual conscious knowledge of any of the following
personnel of Seller within the scope of their employment responsibilities and
without independent inquiry or investigation: 
Isaac Zion, Andrew S. Levine and Andrew W. Mathias.


 


“Laws”
means all laws, Orders, statutes, codes, regulations, ordinances, orders,
decrees, rules, or other requirements with similar effect of any Governmental Authority.


 


5

















 


“Leases”
means all leases, licenses and other occupancy agreements demising space at the
1221 Property, together with all amendments and modifications thereof and
supplements relating thereto, which are in effect on the date hereof; provided
that Leases shall not include subleases, licenses and occupancy agreements
entered into by Tenants under the Leases.


 


“Lender
Approval” means (i) the written authorization, consent and approval of
Senior Lender with respect to the Contemplated Transactions and (ii) reasonable
acceptance by Seller and Buyer, as applicable, of such authorization, consent
and approval if, and only if, Senior Lender imposes material conditions on
Seller or Buyer with respect to such authorization, consent and approval; provided
that neither Buyer nor Seller shall have any right to accept or refuse such
authorization, consent and approval if Senior Lender has not imposed any
conditions or has imposed non-material, ministerial or other conditions on
Buyer or Seller that are customarily imposed by lenders in connection with the
sale, transfer or assignment of loans similar to the Senior Loan.


 


“Lender
Rejection” means written notice by the Senior Lender not authorizing,
consenting or approving the Contemplated Transactions pursuant to the Loan
Agreement.


 


“Lien”
means any lien, security interest, pledge or other similar encumbrance.


 


“Lists”
has the meaning set forth in Section 3.12.


 


“Litigation”
has the meaning set forth in Section 3.6(a).


 


“Loan
Agreement” has the meaning set forth in the Recitals.


 


“Loss”
or “Losses” means all claims, losses, liabilities, damages, costs and
expenses, including, without limitation, reasonable attorneys’ fees, provided,
that (i) Losses shall not include consequential damages, special damages,
punitive damages, or lost profits, and (ii) for purposes of computing
Losses incurred by an Indemnitee, there shall be deducted an amount equal to
the amount of any insurance proceeds, indemnification payments, contribution
payments or reimbursements, and any Tax benefits, received by such Indemnitee
or any of such Indemnitee’s Affiliates in connection with such Losses or the
circumstances giving rise thereto, and the Indemnitee shall use reasonable
efforts to seek such insurance or other third party recoveries.


 


“Mandatory
Title Matters” has the meaning set forth in Section 6.3(d).


 


“Manager”
means Rockefeller Group Development Corporation, a New York corporation.


 


“Management
Agreement” means, that certain Management Agreement, dated as of December 1,
1982, between 1221 Property Owner (successor-in-interest to Rock-McGraw, Inc.,
a New York corporation) and Manager, as amended pursuant to that certain First
Amendment to Management Agreement, dated as of December 29, 2003, by and
between 1221 Property Owner and Manager and that certain Letter Agreement,
dated as of July 1, 2002, delivered by the Company to Manager, as may be
amended from time to time subject to any restrictions set forth in this
Agreement.


 


6

















 


“Objection
Cut-Off Date” has the meaning set forth in Section 6.3(d).


 


“Objection
Disputes” has the meaning set forth in Section 2.4(c).


 


“OFAC”
has the meaning set forth in Section 3.12.


 


“OFAC
Order(s)” has the meaning set forth in Section 3.12.


 


“Orders”
means all judgments, orders, writs, injunctions, decisions, rulings, decrees
and awards of any Governmental Authority.


 


“Organizational
Documents” means, as to any Person, (i) in the case of a partnership,
the certificate of formation, if required, and partnership agreement and any
other agreement among partners or other similar instrument governing the
ownership, management or affairs of such partnership, (ii) in the case of
a limited liability company, the certificate of formation and limited liability
company agreement and any other agreement among members or other similar
instrument governing the ownership, management or affairs of such company, (iii) in
the case of a corporation, the certificate or articles of incorporation, bylaws
and any agreement among shareholders or other similar instrument governing the
ownership, management or affairs of such corporation, and, (iv) in the
case of any other entity, the comparable organizational documents of such
entity.


 


“Other
Owners” has the meaning set forth in the Recitals.


 


“Other
Property” has the meaning set forth in the Recitals.


 


“Outside
Date” means the earlier to occur of (a) thirty (30) days from the
later of (1) April 30, 2010 or (2) the date hereof, (b) the
date RGI exercises its right of first refusal by delivering the Acceptance (as
defined in the Shareholders’ Agreement) on the terms and conditions set forth
the Shareholders’ Agreement, and (c) the date Senior Lender delivers a
Lender Rejection to Seller or the Company.


 


“PCBs”
has the meaning set forth in Section 3.14.


 


“Permitted
Encumbrances” means, collectively, (i) those matters set forth on Exhibit C
attached hereto (other than those matters, if any, deleted or indicated a “Title
Objection” thereon (ii) any Laws imposed by any Governmental Authority having
jurisdiction over the Property including, without
limitation, all zoning, entitlement, land use, building and environmental laws,
rules, regulations, statutes, ordinances, orders or other legal requirements,
including landmark designations and all zoning variance and special exceptions,
if any, (iii) any
Lien existing on any real property, covenants, conditions, zoning restrictions,
easements, rights-of-way, encumbrances, encroachments, restrictions on use of
real property and other matters affecting title which do not materially impair
the occupancy or use of the Property for the purposes for which it is currently
used, (iv) matters disclosed on the Survey, (v) the rights and
interests held by Tenants under the Leases in effect at Closing and others
claiming by, through or under such Leases (and any non-disturbance agreements
and memoranda of lease relating thereto), (vi) possible encroachments
and/or projections of stoop areas, roof cornices, window trims, vent pipes,
cellar doors, steps, flue pipes, signs, piers, lintels, window sills,
protective netting, 


 


7

















 


sidewalk sheds, coping walls (including retaining
walls and yard walls) and the like, if any, on, under, or above any street or
highway, the Property or any adjoining property, (vii) any Violations now
or hereafter issued or noted, (viii) the standard printed exclusions from
coverage contained in the ALTA form of owner’s title policy currently in use in
New York, with the standard New York endorsement, (ix) any Lien in respect
of Taxes, (including, without limitation, real estate taxes, sewer rents and
taxes, water rates and charges, vault charges and taxes, business improvement
district taxes and assessments) not yet due and payable, or if due, the
validity of which is being contested in good faith by appropriate proceedings, (x) mechanics’,
carriers’, workmen’s, repairmen’s or other like Liens arising or incurred in
the ordinary course of business or that are not yet due and payable or that are
being contested in good faith, (xii) those matters which will be extinguished
upon transfer of  Seller’s Common Stock,
and (xii) minor variations between the tax lot lines and the description of the
Property set forth on Exhibit A, Exhibit B-1 and Exhibit B-2
attached hereto.


 


“Person”
means any individual, person, entity, general partnership, limited partnership,
limited liability partnership, limited liability company, corporation, joint
venture, trust, business trust, cooperative, association, foreign trust or
foreign business organization.


 


“Preferred
Stock” has the meaning set forth in the Basic Company Agreements.


 


“Preliminary
Title Commitment” means the title insurance commitment, dated March 1,
2010 issued by the Title Company, Title NO. 10-7406-22319-NYM.


 


“Property”
has the meaning set forth in the Recitals.


 


“Property
Owners” has the meaning set forth in the Recitals.


 


“Purchase
Price Adjustment” means the adjustment to the Closing Consideration Amount
made in accordance with Section 2.4(a).


 


“Purchase
Price Adjustment Statement” has the meaning set forth in Section 2.4(a).


 


“Qualified
REIT” means an entity qualifying as a “real estate investment trust” under Section 856
of the Code.


 


“Reclassified
Certificates” has the meaning set forth in Section 5.10.


 


“Remedy”
has the meaning set forth in Section 6.3(d)(ii).


 


“Required
Amendments” means those certain amendments to the Basic Company Agreements
(other than the Shareholders’ Agreement) in the forms annexed hereto as Exhibit D-1
and Exhibit D-2.


 


“Responsible
Party” has the meaning set forth in Section 11.1.


 


“Restraints”
has the meaning set forth in Section 6.1(a).


 


“RGI”
has the meaning set forth in the Recitals.


 


8

















 


“ROFR
Waiver” has the meaning set forth in the Recitals.


 


“Shareholders’
Agreement” has the meaning set forth in the Recitals.


 


“Seller”
has the meaning set forth in the Preamble.


 


“Seller’s
Common Stock” has the meaning set forth in the Recitals.


 


“Seller
Indemnitees” has the meaning set forth in Section 9.2(a).


 


“Senior
Lender” has the meaning set forth in the Recitals.


 


“Senior
Loan” means the loan made pursuant to the Loan Agreement.


 


“SLG”
means SL Green Realty Corp., a Maryland corporation.


 


“Subsidiary”
means, with respect to any Person, any corporation or other organization,
whether incorporated or unincorporated, (a) of which such Person or any
other Subsidiary of such Person is a general partner (excluding partnerships,
the general partnership interests of which held by such Person or any
Subsidiary of such Person do not have a majority of the voting interests in
such partnership), or (b) at least a majority of the securities or other
interests of which having by their terms ordinary voting power to elect a
majority of the board of directors or others performing similar functions with
respect to such corporation or other organization is directly or indirectly
owned or controlled by such Person or by any one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries.


 


“Survey”
means, collectively, (i) that survey made by Earl B. Lovell — S.P. Belcher, Inc.,
dated August 10, 1972 and last revised and brought to date by visual
examination on April 27, 2010, (ii) that survey made by Early B.
Lovell — S.P. Belcher, Inc., dated September 26, 1968 and last
revised and brought to date by visual examination on April 27, 2010, (iii) that
survey made by Early B. Lovell — S.P. Belcher, Inc., dated October 17,
1941 and last revised and brought to date April 27, 2010 (iv) that
survey made by J. George Hollerith, dated March 27, 1935 and last revised
and brought to date April 27, 2010, and (v) that survey made by Earl
B. Lovell — S.P. Belcher, Inc., dated November 13, 1952, updated by
visual examination on April 26, 2010.


 


“Taking”
has the meaning set forth in Section 5.9(a).


 


“Tax”
or “Taxes” means all federal, state, local and foreign income, profits,
franchise, gross receipts, environmental, customs duty, capital stock,
severances, stamp, payroll, sales, employment, unemployment, disability, use,
property, withholding, excise production, value added, occupancy, Transfer
Taxes, and other taxes, duties or assessments of any nature whatsoever,
together with all interest, penalties or additions to tax attributable to such
taxes.


 


“Tax
Return” means any report, return, statement or other written information
(including elections, declarations, disclosures, schedules, estimates and
information returns) required to be supplied by the Company or any of its
Subsidiaries to a Taxing Authority in connection with any Taxes and any
amendment thereto.


 


9
















 


“Taxing
Authority” means any government or any subdivision, agency, commission or
authority thereof, or any quasi-governmental or private body, having
jurisdiction over the assessment, determination, collection or other imposition
of Taxes.


 


“Tenants”
has the meaning set forth in Section 3.8(a).


 


“Title
Affidavit” has the meaning set forth in Section 7.7.


 


“Title
Company” means Fidelity National Insurance Title Company.


 


“Title
Objections” has the meaning set forth in Section 6.3(d).


 


“Title
Policy” has the meaning set forth in Section 6.3(d).


 


“Third
Party Claim” has the meaning set forth in Section 9.2(d)(ii)(A).


 


“Total
Common Stock” has the meaning set forth in the Recitals.


 


“Transfer
Taxes” means all transfer, documentary, sales, use, stamp, registration and
other such Taxes and fees (including any penalties and interest).


 


“Treasury
Regulations” means the regulations promulgated under the Code, as amended
from time to time (including any successor regulations).


 


“Violations”
means any and all notes or notices of violations of Law regarding the Property
noted in or issued by any Governmental Authority, or any condition or state of
repair or disrepair or other matter or thing, whether or not noted, which, if
noted, would result in a violation being placed on the Property.


 


1.2.         Rules of Construction.  Unless the context otherwise requires:


 


(a)           A
capitalized term has the meaning assigned to it;


 


(b)           An
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;


 


(c)           References
in the singular or to “him,” “her,” “it,” “itself,” or other like references,
and references in the plural or the feminine or masculine reference, as the
case may be, shall also, when the context so requires, be deemed to include the
plural or singular, or the masculine or feminine reference, as the case may be;


 


(d)           References
to Articles, Sections and Exhibits shall refer to articles, sections and
exhibits of this Agreement, unless otherwise specified;


 


(e)           The
headings in this Agreement are for convenience and identification only and are
not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision thereof;


 


10

















 


(f)            This
Agreement shall be construed without regard to any presumption or other rule requiring
construction against the party that drafted and caused this Agreement to be
drafted;


 


(g)           All
monetary figures shall be in United States dollars unless otherwise specified;
and


 


(h)           References
to “including” in this Agreement shall mean “including, without limitation,”
whether or not so specified.


 


ARTICLE II


Purchase and Sale


 


2.1.         Closing.  The closing of the
Contemplated Transactions (the “Closing”) will take place at the offices
of Fried, Frank, Harris, Shriver & Jacobson LLP, One New York Plaza,
New York, NY 10004, at 10:00 A.M. local time on the tenth Business Day,
which may be extended for up to five (5) additional Business Days by the
Buyer, immediately following the day on which the last of the conditions set
forth in Sections 6.1(b) and 6.1(c) are satisfied in accordance with
this Agreement, or on such other date as Buyer and Seller may otherwise
agree.  The day on which the Closing
actually occurs is referred to herein as the “Closing Date.”


 


2.2.         Purchase and Sale.  Subject to the terms and conditions set forth
in this Agreement, at the Closing, Buyer shall purchase from Seller, and Seller
shall sell, transfer and assign to Buyer, all of Seller’s Common Stock, free
and clear of all Liens, subject only to the terms of the Basic Company
Agreements.


 


2.3.          Payments at the Closing; Deposit.  The purchase price to be paid by Buyer for
Seller’s Common Stock shall be Four Hundred Eighty-One Million Five Hundred
Thousand Dollars ($481,500,000) (as may be adjusted pursuant to this
Section 2.3 and Section 2.4, the “Closing Consideration Amount”),
payable as follows:


 


(a)           Simultaneous
with the execution of this Agreement by Buyer and Seller, a portion of the
Closing Consideration Amount in the amount of $50,000,000 (the “Deposit”)
shall be delivered by Buyer to Title Company (the “Escrow Agent”),
pursuant to an escrow agreement in the form of Exhibit E attached
hereto (the “Escrow Agreement”), by wire transfer of immediately
available funds to an account (the “Escrow Account”) to be designated
and administered by the Escrow Agent on the terms set forth in the Escrow
Agreement.


 


(b)           At
least three (3) Business Days prior to the Closing, Seller shall deliver
to Buyer a closing date statement substantially in the form attached hereto as
Schedule 2.3(b) (the “Closing Date Statement”), which Closing Date
Statement shall set forth Buyer’s good faith estimate of Closing Date Net
Working Capital.


 


(c)           If
Closing Date Net Working Capital as shown on the Closing Date Statement (the “Estimated
Closing Date Net Working Capital”) is greater than zero (the “Base Net
Working Capital”), then the Closing Consideration Amount shall be increased
by forty-five percent (45%) of the amount of such excess.  If Estimated Closing Date Net Working Capital
is 


 


11

















 


less than Base Net Working Capital (which calculation shall include
negative numbers), then the Closing Consideration Amount shall be decreased by
forty-five percent (45%) of such shortfall. 
The Closing Consideration Amount, as so adjusted, is referred to as the “Estimated
Closing Consideration Amount.”


 


(d)           At
the Closing, Seller shall be entitled to receive the Deposit (together with all
interest accrued thereon) from Escrow Agent and Buyer shall pay to Seller an
amount equal to the balance of the Estimated Closing Consideration Amount (i.e., the Estimated Closing Consideration Amount less the
Deposit and any interest accrued thereon), by wire transfer of immediately
available funds to an account designated by Seller.


 


2.4.         Purchase Price Adjustment.


 


(a)           Within
sixty (60) days after the Closing Date, Buyer shall prepare and deliver to
Seller a statement identifying the Closing Date Net Working Capital (the “Purchase
Price Adjustment Statement”).  If the
Closing Date Net Working Capital is greater than the Estimated Closing Date Net
Working Capital, Buyer shall pay Seller an amount equal to forty-five percent
(45%) of the difference between the Closing Date Net Working Capital and the
Estimated Closing Date Net Working Capital in accordance with Section 2.4(e) hereof.  If the Estimated Closing Date Working Capital
is greater than the Closing Date Net Working Capital, Seller shall pay Buyer an
amount equal to forty-five percent (45%) of the difference between the
Estimated Closing Date Working Capital and the Closing Date Net Working Capital
in accordance with Section 2.4(e) hereof.  Additionally the Purchase Price Adjustment
shall contain an additional adjustment (either a credit or debit) equal to 45%
of the difference between (x) the actual outstanding balance of the Senior
Loan on the Closing Date and (y) $170,000,000.


 


(b)           Each
party shall provide the other party and its representatives with reasonable
access to the Business Records and relevant personnel and properties during the
preparation of the Purchase Price Adjustment Statement and the resolution of
any disputes that may arise under this Section 2.4.


 


(c)           If
Seller disagrees with the determination of the Purchase Price Adjustment or the
composition of assets or liabilities contained in the Purchase Price Adjustment
Statement, Seller shall notify Buyer in writing of such disagreement within
thirty (30) days after delivery of the Purchase Price Adjustment Statement to Seller
(the “Objection Disputes”). 
During the thirty (30) day period of its review, Seller shall have
reasonable access to any documents, schedules or work papers used in the
preparation of the Purchase Price Adjustment Statement.  The failure of Seller to deliver written
notice of an Objection Dispute to Buyer within thirty (30) days after delivery
of the Purchase Price Adjustment Statement to Seller shall be deemed acceptance
of the Purchase Price Adjustment Statement and agreement to the Purchase Price Adjustment
amount by Seller.


 


(d)           Buyer
and Seller shall negotiate in good faith to resolve any Objection Dispute and
any resolution agreed to in writing by Buyer and Seller shall be final and
binding upon the parties.  If Buyer and
Seller are unable to resolve all Objection Disputes within twenty (20) days of
delivery of written notice of such Objection Disputes by Seller to Buyer, then
the disputed matters shall be referred for final determination to The Schonbraun
McCann Group (the 


 


12

















 


“Accounting Arbitrator”) within fifteen (15) days
thereafter.  If such firm is unable to
serve, Buyer and Seller shall jointly select an Accounting Arbitrator from an
accounting firm of national standing that is not the independent auditor of
(and does not otherwise serve as a Consultant to) Buyer, Seller or the Company
(or their respective Affiliates).  If
Buyer and Seller are unable to agree upon an Accounting Arbitrator within such
time period, then the Accounting Arbitrator shall be an accounting firm of
national standing designated by the American Arbitration Association in New
York, New York; provided, that such firm shall not be the independent
auditor of (or otherwise serve as a Consultant to) Buyer, Seller or the Company
(or their respective Affiliates).  The
Accounting Arbitrator shall only consider those items and amounts set forth on
the Purchase Price Adjustment Statement as to which Buyer and Seller have
disagreed within the time periods and amounts and on the terms specified in Section 2.4(c) and
Section 2.4(d) and must resolve all unresolved Objection Disputes in
accordance with the terms and provisions of this Agreement.  The Accounting Arbitrator shall deliver to
Buyer and Seller, as promptly as practicable and in any event within sixty (60)
days after its appointment, a written report setting forth the resolution of
any unresolved Objection Disputes determined in accordance with the terms
herein.  The Accounting Arbitrator shall
select as a resolution the position of either Buyer or Seller for each
Objection Dispute (based solely on presentations and supporting material
provided by the parties and not pursuant to any independent review) and may not
impose an alternative resolution.  Such
report shall be final and binding upon all of the parties to this
Agreement.  Upon the agreement of Buyer
and Seller or the decision of the Accounting Arbitrator, or if Seller fails to
deliver written notice of disagreement to Buyer within the thirty (30) day
period provided in Section 2.4(c), the Purchase Price Adjustment
Statement, as adjusted if necessary pursuant to the terms of this Agreement,
shall be deemed to be the Purchase Price Adjustment Statement for purposes of
calculating the Purchase Price Adjustment pursuant to this Section 2.4.  The fees, expenses and costs of the
Accounting Arbitrator shall be borne equally by Buyer and Seller.


 


(e)           Any
Purchase Price Adjustment shall be paid by Buyer or Seller, as applicable, by
wire transfer of immediately available funds to an account designated by the
party receiving such payment within five (5) Business Days after the final
determination of the Purchase Price Adjustment. 
SLG hereby guarantees the obligations of Seller to pay the Purchase
Price Adjustment to Buyer pursuant to this Section 2.4 and CPPIB hereby
guarantees the obligations of Buyer to pay the Purchase Price Adjustment to
Seller pursuant to this Section 2.4, as applicable. The provisions of this
Section 2.4 shall survive the Closing.


 


ARTICLE III


Representations and Warranties of the Seller


 


Seller
represents and warrants to the Buyer as of the date hereof and as of the
Closing:


 


3.1.         Organization and Power.  Seller is a limited liability company duly
formed, validly existing and in good standing under the Laws of the state of
Delaware and qualified to do business in the State of New York.  Seller has the full power and authority to
execute and deliver this Agreement and the Ancillary Documents to which it is a
party, to perform its obligations hereunder and thereunder and to consummate
the Contemplated Transactions.


 


13

















 


3.2.         Authorization and Enforceability.  The execution and delivery of this Agreement
and the Ancillary Documents to which Seller is a party and the performance by
Seller of the Contemplated Transactions have been duly authorized by Seller
and, to the extent required, the Persons Controlling Seller and no other
corporate proceedings on the part of Seller (including, without limitation, any
shareholder vote or approval) are necessary to authorize the execution,
delivery and performance of this Agreement and the Ancillary Documents to which
Seller is a party or the consummation of the Contemplated Transactions.  This Agreement is, and each of the Ancillary
Documents to be executed and delivered at the Closing by Seller will be at the
Closing, duly authorized, executed and delivered by Seller and constitute, or
as of the Closing Date will constitute, valid and legally binding agreements of
Seller enforceable against Seller, in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other Laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.


 


3.3.         No Violation; Consents.


 


(a)           The
execution and delivery by Seller of this Agreement and the Ancillary Documents
to which Seller is a party, consummation of the Contemplated Transactions and
compliance with the terms of this Agreement and the Ancillary Documents to
which Seller is a party will not, subject to obtaining the ROFR Waiver and
Lender Approval, (i) conflict with or violate any provision of the
Organizational Documents of Seller, or to the Knowledge of Seller, the Company
or the 1221 Property Owner, (ii) violate or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give the other parties thereto any rights of termination, amendment,
acceleration or cancellation of, any loan or credit agreement, instrument,
permit, concession, franchise or license applicable to Seller, or to the
Knowledge of Seller, the Company or the 1221 Property Owner, which would
materially restrict Seller’s ability to consummate the Contemplated
Transactions or result in liability to Buyer, (iii) conflict with or
violate in any material respect any Law applicable to Seller or by which the
Company or the 1221 Property are bound or affected, or (iv) result in the
creation of, or require the creation of, any material Lien upon Seller’s Common
Stock, or to the Knowledge of Seller, any other shares of capital stock of the
Company.


 


(b)           Other
than those consents, approvals, orders or authorizations of, or registrations,
declarations or filings with any Governmental Authority (collectively, “Governmental
Consents”) which have been obtained by Seller, no Governmental Consents are
required by or with respect to Seller or, to the Knowledge of Seller, the
Company, in connection with the execution, delivery and performance of this
Agreement and the Ancillary Documents to which Seller is a party or the
consummation of the Contemplated Transactions where the failure to obtain such
Governmental Consents would have a Company Material Adverse Effect or would
materially restrict Seller’s ability to consummate the Contemplated Transactions
or result in liability to Buyer.


 


(c)           Subject
to obtaining the ROFR Waiver and the Lender Approval, and except for any
Governmental Consents and any other consents, approvals or waivers that have
been obtained by Seller, the execution and delivery by Seller of this Agreement
and the consummation of the Contemplated Transactions do not and will not
require any consent, approval or waiver by any third party (including, without
limitation, the consent of any direct or indirect partner of Seller) where the
failure to obtain such consent, approval or waiver would 


 


14

















 


have a Company Material Adverse Effect or would materially restrict
Seller’s ability to consummate the Contemplated Transactions or result in
liability to Buyer.


 


3.4.         Capitalization and Organization of
the Company.


 


(a)           The
authorized capital stock of the Company consists of 2,000 shares of common
stock, par value $2.00 per share and 2,000 shares of common stock are issued
and outstanding.  To the Knowledge of
Seller, no shares of common stock of the Company are owned by any Person other
than Seller and RGI.  All of Seller’s
Common Stock is duly authorized, validly issued, fully paid and non-assessable,
and to the Knowledge of Seller, all of the Total Common Stock (other than
Seller’s Common Stock) is duly authorized, validly issued, fully paid and
non-assessable.


 


(b)           Seller
is the record and beneficial owner of 900 shares of the Total Common Stock and,
to the Knowledge of Seller, RGI is the record and beneficial owner of 1100
shares of the Total Common Stock.


 


(c)           Except
as set forth in the Basic Company Agreements, (i) there are no existing
options, warrants, calls, pre-emptive rights, rights of first refusal,
subscriptions or other rights, agreements, arrangements or commitments of any
character, relating to Seller’s Common Stock or securities convertible into or
exercisable or exchangeable for Seller’s Common Stock, and (ii) to the
Knowledge of Seller, there are no existing options, warrants, calls,
pre-emptive rights, rights of first refusal, subscriptions or other rights,
agreements, arrangements or commitments of any character, relating to any other
shares of capital stock of the Company or the 1221 Property Owner or securities
convertible into or exercisable or exchangeable for any other shares of capital
stock or membership interests, as applicable, of the Company or the 1221
Property Owner.


 


(d)           Seller
has good and marketable title to one hundred percent (100%) of Seller’s Common
Stock.  The transfer and delivery of
Seller’s Common Stock by Seller to Buyer as contemplated by this Agreement and
the Ancillary Documents will transfer good and valid title to all of Seller’s
Common Stock free and clear of all Liens, claims or other encumbrances, subject
only to the terms of the Basic Company Agreements.


 


(e)           To
the Knowledge of Seller, (i) Schedule 3.4(e) accurately and
completely describes the ownership structure of the Company, each of its
constituent owners and each of its subsidiaries and (ii) since December 24,
2003, the Company has not owned, and does not own, directly or indirectly,
beneficially or otherwise, capital stock, limited liability company interests,
partnership interests or any other beneficial or equity interest in any Person
other than the Property Owners.


 


(f)            Schedule
3.4(f) contains a true, correct and complete list of (i) all
Organizational Documents of the Company and, to the Knowledge of Seller, the
1221 Property Owner and (ii) any other material agreements, to the Knowledge
of Seller, that relate to the ownership and corporate governance of the Company
and the 1221 Property Owner.  Seller has
delivered to Buyer true and correct copies of each of the Organizational
Documents listed on Schedule 3.4(f) in the possession of Seller and
there have been no amendments, modifications or 


 


15

















 


supplements to such Organizational Documents except as set forth on Schedule
3.4(f) or after the date of this Agreement with Buyer’s approval in
accordance with Section 5.1.


 


(g)           Neither
Seller, nor to the Knowledge of Seller, the Company or the 1221 Property Owner
is in breach of, or in default under, its respective Organizational Documents
and no event has occurred that, with the giving of notice or passage of time,
or both, would constitute a default under the Organizational Documents of
Seller, or to the Knowledge of Seller, the Company or the 1221 Property
Owner.  Seller has not received any
communication from any Governmental Authority asserting that the Company or the
1221 Property Owner are not in compliance with any Organizational Documents or
requirement of Law applicable to it.


 


3.5.         Financial Statements and Books and
Records; Absence of Certain Changes or Events.


 


(a)           Seller
has delivered to Buyer, or made available to Buyer for review (i) true and
complete copies of all financial statements, general ledgers and books of
account related to the operations of the Company and the 1221 Property Owner
that are in Seller’s possession or control and that have been requested by
Buyer for the years ended December 31, 2007, 2008 and 2009, and (ii) true
and complete copies of the 12 most recent monthly reports that have been
provided to Seller by the Company in connection with the 1221 Property, substantially
in the form of Exhibit F attached hereto.


 


(b)           Since
December 31, 2009, there have not been any occurrences or circumstances
affecting Seller, or to the Knowledge of Seller, the Company or the 1221
Property Owner that would have, or that with the passage of time would
reasonably be expected to have a material adverse effect on the operations,
assets, businesses, affairs, properties or financial condition of the Company
or the 1221 Property Owner or materially restrict Seller’s ability to consummate
the Contemplated Transactions.  To the
Knowledge of Seller, since December 31, 2009, the Company and the 1221
Property Owner have conducted its business in the ordinary course consistent
with past practices and there has not been any change in the accounting, tax or
reserve methods, principles or practices of the Company or the 1221 Property
Owner, except insofar as required by a change in GAAP.


 


3.6.         Litigation.


 


(a)           There
is no litigation, legal action, arbitration, mediation, proceeding, demand,
investigation or claim (“Litigation”) pending as to which Seller has
received written notice or, to the Knowledge of Seller, threatened, against or
involving the Company or the 1221 Property Owner at Law or in equity or before
any Governmental Authority that is not or would not be covered by insurance. To
the Knowledge of Seller, neither the Company nor the 1221 Property Owner is
subject to any Order arising from any Litigation.


 


(b)           There
is no Litigation as to which Seller has received written notice or, to the
Knowledge of Seller, is threatened against or involving Seller which questions
the validity of this Agreement or any of the Ancillary Documents to which it is
a party or seeks to prohibit, enjoin or otherwise challenge Seller’s ability to
consummate the Contemplated Transactions.


 


16

















 


3.7.         Taxes and Tax Matters.


 


(a)           To
the Knowledge of Seller, all material Tax Returns required to be filed by the
Company and 1221 Property Owner  have
been duly and timely filed (taking into account applicable extensions) and all
such Tax Returns are true, correct and complete in all material respects.  To the Knowledge of Seller, the Company and
1221 Property Owner have paid (or caused to be paid) all Taxes shown to be
payable on such Tax Returns (other than Taxes that are being contested in good
faith).


 


(b)           To
the Knowledge of Seller, there is no material action, suit, proceeding, audit,
investigation or claim pending or threatened in respect of any Taxes for which
the Company or 1221 Property Owner is liable. To the Knowledge of Seller, no
material deficiency or claim for any such Taxes has been asserted in writing by
a Taxing Authority.


 


(c)           To
the Knowledge of Seller, the Company is a Qualified REIT.


 


(d)           Assuming
that Buyer owns no other interest directly or indirectly in any of the
Properties, no Transfer Taxes will be imposed on the Contemplated Transactions
either (i) solely as a result of the Contemplated Transactions or (ii) as
a result of the aggregation of the Contemplated Transactions with any other
transfers prior to the Closing with respect to Seller’s Common Stock.


 


3.8.         Real Estate.


 


(a)           Schedule
3.8(a) is a true, correct and complete list of all Leases that have
been provided to Seller by the Company in connection with the 1221 Property,
and Seller has delivered to Buyer, or made available to Buyer for review, true
and complete copies of all such Leases as received.  To the Knowledge of Seller, the 1221 Property
Owner has neither received nor delivered any written notices from or to any of
the tenants under the Leases (the “Tenants”) asserting that either the
1221 Property Owner or any such Tenant is in default in any material respect
under any of the respective Leases (other than defaults that have been cured in
all material respects).  To the Knowledge
of Seller, except as set forth on Schedule 3.8(a), (i) all of the
Leases set forth on Schedule 3.8(a) are in full force and effect
and there is no default by the Tenants or the 1221 Property Owner under such
Leases and (ii) neither the 1221 Property Owner nor any Tenant has waived
any material term or condition of any such Lease and all material covenants
thereunder to be performed by the 1221 Property Owner or any Tenant have been
performed in all material respects.


 


(b)           Schedule
3.8(b) is a true, correct and complete list of the security deposits
held by the 1221 Property Owner under the Leases as of the date set forth
thereon to the extent that Seller has received such information from the
Company.


 


(c)           Schedule
3.8(c) is a true, correct and complete list as of the date set forth
thereon of the tenant arrearage schedule to the extent such information has
been provided to Seller by the Company in connection with the 1221 Property.


 


(d)           To
the Knowledge of Seller, (i) the Management Agreement is in full force and
effect in accordance with its terms and (ii) there have been no
amendments, 


 


17

















 


modifications or supplements to the Management Agreement.  Without limiting the foregoing, (x) Seller
has not consented to, and neither Manager nor the Company has requested the
consent of Seller to, either (A) any amendment, modification or supplement
to the Management Agreement that would increase or alter the fee payable to the
manager thereunder, or which would alter the material economic terms of the
Management Agreement, or (B) the assignment by Manager of its rights and
obligations as manager under the Management Agreement to any Person other than
RGI or RGI’s parent or parents (or its or their successors), or any of their
respective Affiliates and (y) Seller has not delivered a notice of default
or termination notice to Manager under the Management Agreement and, to the
Knowledge of Seller, no breach or default exists (or condition exists which
with the passage of time would constitute a breach or default) on the part of
Manager that would permit Seller to deliver a notice of default or termination
notice under the Management Agreement in accordance with the terms thereof.


 


(e)           There
is no Litigation as to which Seller has received written notice, or, to the
Knowledge of Seller, is threatened with respect to all or any portion of the
1221 Property, in each case which is not or would not be covered by insurance
and which would have a material adverse effect on the use or operation of the
1221 Property.


 


(f)            There
are no condemnation or eminent domain proceedings as to which Seller has
received written notice, or to the Knowledge of Seller, is threatened against
the 1221 Property.


 


(g)           Seller
has delivered to Buyer a true, correct and complete copy of Seller’s Title
Policy and copies of all other title policies and surveys in Seller’s
possession or control relating to the 1221 Property.  Seller has not received written notice of any
cancellation or termination of Seller’s Title Policy and no claims have been
made and no claims have been paid under Seller’s Title Policy.


 


3.9.         Debt.


 


(a)           Except
for the indebtedness pursuant to the Loan Agreement, to the Knowledge of
Seller, neither the Company nor the 1221 Property Owner has any outstanding
indebtedness for borrowed money (including but not limited to any shareholder
loans) and neither the Company nor the 1221 Property Owner has guaranteed the
payment or performance of the obligations of any Person other than pursuant to
the Loan Agreement and other Loan Documents.


 


(b)           Schedule
3.9(b) contains a true, correct and complete list of the Loan
Documents that have been provided to Seller by the Company and true and correct
copies of the Loan Documents that have been provided to Seller by the Company
have been delivered or made available to Buyer for review.  To the Knowledge of Seller, (i) there
have been no amendments, modifications or supplements to the Loan Documents set
forth on Schedule 3.9(b) except as set forth on Schedule 3.9(b),
and except for amendments, modifications or supplements permitted pursuant to Section 5.1,
(ii) the Loan Agreement and all other Loan Documents are in full, force
and effect  and (iii) Seller, and to
the Knowledge of Seller, the 1221 Property Owner and the Company, have not
received written notice alleging that the 1221 Property Owner or the 


 


18

















 


Company has defaulted in the performance of any of their respective
obligations under the Loan Agreement or the other Loan Documents.


 


3.10.       Board of Directors.  The individuals identified on Schedule
3.10 are Seller’s sole representatives on the Board (as defined in the
Basic Company Agreements) and Seller has not appointed any alternative
representatives to the Board.


 


3.11.       Company Investments.  To the Knowledge of Seller, since December 24,
2003, the Company has not conducted and currently does not conduct any
business, and has not owned and does not own any real estate or other assets,
other than the business of owning the ownership interests in the Property
Owners.


 


3.12.        OFAC.  Seller is in compliance with the requirements
of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the “OFAC
Order”) and other similar requirements contained in the rules and
regulations of the office of Foreign Assets Control, Department of the Treasury
(“OFAC”) and in any enabling legislation or other Executive Orders or
regulations in respect thereof (the OFAC Order and such other rules,
regulations, legislation, or orders are collectively called the “OFAC Orders”).  Further, Seller covenants and agrees to make
its policies, procedures and practices regarding compliance with the OFAC
Orders, if any, available to Buyer for its review and inspection during normal
business hours and upon reasonable prior notice.  Neither Seller nor any beneficial owner of
Seller:


 


(a)           is
listed on the Specially Designated Nationals and Blocked Persons List
maintained by OFAC pursuant to the OFAC Order and/or on any other list of
terrorists or terrorist organizations maintained pursuant to any of the rules and
regulations of OFAC or pursuant to any other applicable OFAC Orders (such lists
are collectively referred to as the “Lists”)


 


(b)           is
a person who has been determined by competent authority to be subject to the
prohibitions contained in the OFAC Orders; or


 


(c)           is
owned or controlled by, or acts for or on behalf of, any person on the Lists or
any other person who has been determined by competent authority to be subject
to the prohibitions contained in the OFAC Orders.


 


3.13.       No Brokers.  Neither Seller nor or any of its Affiliates
has employed or incurred any liability to any broker, finder or agent for any
brokerage fees, finder’s fees, commissions or other amounts with respect to
this Agreement, the Ancillary Documents or the Contemplated Transactions.


 


3.14.       Environmental.  Seller has not, and to the Knowledge of
Seller, neither the Company nor the 1221 Property Owner has received any
written notice from any Governmental Authority asserting that a condition
exists at the 1221 Property that constitutes or has resulted in a violation of
any Environmental Laws, or that any claim is being asserted against Seller, the
Company or the 1221 Property Owner (or in a manner by which the Company could
be financially responsible) by reason of any such violation, which notice or
violation remains uncured.  The term “Environmental
Laws” means all federal, state and local laws, statutes, ordinances and
regulations, now or hereafter in effect, in each case as amended or
supplemented


 


19
















 


from time to time, including, without limitation, all applicable
judicial or administrative orders, applicable consent decrees and binding
judgments relating to the regulation and protection of human health, safety,
the environment and natural resources (including, without limitation, ambient
air, surface, water, groundwater, wetlands, land surface or subsurface strata,
wildlife, aquatic species and vegetation), including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C. §§ 9601 et  seq.), the Hazardous Material
Transportation Act, as amended (49 U.S.C. §§ 1801 et  seq.), the
Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. §§
136 et  seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S. §§ 6901 et  seq.), the Toxic Substance Control
Act, as amended (15 U.S.C. §§ 2601 et  seq.), the Clean Air Act,
as amended (42 U.S.C. §§ 7401 et  seq.), the Federal Water
Pollution Control Act, as amended (33 U.S.C. §§ 1251 et  seq.),
the Occupational Safety and Health Act, as amended (29 U.S.C. §§ 651 et  seq.),
the Safe Drinking Water Act, as amended (42 U.S.C. §§ 300f et  seq.),
Environmental Protection Agency regulations pertaining to Asbestos (including,
without limitation, 40 C.F.R. Part 61, Subpart M, the United States
Environmental Protection Agency Guidelines on Mold Remediation in Schools and
Commercial Buildings, the United States Occupational Safety and Health
Administration regulations pertaining to Asbestos including, without
limitation, 29 C.F.R.  Sections 1910.1001
and 1926.58), applicable New York State and New York City statutes and the rules and
regulations promulgated pursuant thereto regulating the storage, use and
disposal of Hazardous Materials, the New York City Department of Health
Guidelines on Assessment and Remediation of Fungi in Indoor Environments and
any state or local counterpart or equivalent of any of the foregoing, and any
related federal, state or local transfer of ownership notification or approval
statutes.  The term “Hazardous
Materials” means (a) those substances included within the definitions
of any one or more of the terms “hazardous materials,” “hazardous wastes,” “hazardous
substances,” “industrial wastes,” and “toxic pollutants,” as such terms are
defined under the Environmental Laws, or any of them, (b) petroleum and
petroleum products, including, without limitation, crude oil and any fractions
thereof, (c) natural gas, synthetic gas and any mixtures thereof, (d) asbestos
and or any material which contains any hydrated mineral silicate, including,
without limitation, chrysotile, amosite, crocidolite, tremolite, anthophylite
and/or actinolite, whether friable or non-friable (collectively, “Asbestos”),
(e) polychlorinated biphenyl (“PCBs”) or PCB-containing materials
or fluids, (f) radon, (g) any other hazardous or radioactive
substance, material, pollutant, contaminant or waste, and (h) any other
substance with respect to which any Environmental Law or Governmental Authority
requires environmental investigation, monitoring or remediation.


 


3.15.       Disclaimer.


 


(a)           Notwithstanding anything to the
contrary contained in this Agreement, neither the Seller nor any Person acting
on behalf of Seller has made, or shall be deemed to have made, to Buyer or any
other Person any representations or warranty other than those expressly made by
Seller in this Article III.  Buyer
hereby acknowledges that, except as expressly set forth in this Agreement,
neither Seller nor any Person acting on behalf of Seller, nor any person or
entity which prepared or provided any of the materials reviewed by Buyer in
conducting its due diligence, nor any successor or assign of any of the
foregoing parties, has made or shall be deemed to have made any oral or written
representations or warranties, whether expressed or implied, by operation of
law or otherwise (including, without limitation, warranties of habitability,
merchantability or fitness for a particular purpose), with respect to the
Property, 


 


20

















 


including, without limitation, the permitted use
thereof or the zoning and other Laws applicable thereto or the compliance by
the Property therewith, the revenues and expenses generated by or associated
with the Property, or otherwise relating to the Property or the transactions
contemplated herein.  Except as expressly
set forth in this Agreement, Buyer further acknowledges that all materials
which have been provided by Seller have been provided without any warranty or
representation, expressed or implied as to their content, suitability for any
purpose, accuracy, truthfulness or completeness and except as expressly set
forth in this Agreement, Buyer shall not have any recourse against Seller in
the event of any errors therein or omissions therefrom.  Buyer is acquiring Seller’s Common Stock
based solely on its own independent investigation and inspection of Seller’s
Common Stock and the Property, and not in reliance on any information provided
by Seller, except for the representations expressly set forth herein.  Without limiting the generality of the
foregoing, no representation or warranty has been made or is being made herein
to Buyer or any other Person (i) as to merchantability, suitability or
fitness for a particular purpose, or quality, with respect to any tangible
assets (including the Property) or as to the condition or workmanship thereof
or the absence of any defects therein, whether latent or patent (or any other
representation or warranty referred to in section 2-312 of the uniform
commercial code of any applicable jurisdiction), (ii) with respect to any
projections, forecasts, business plans, estimates or budgets delivered to or
made available to Buyer or any other Person, or (iii) with respect to any
other information or documents made available at any time to Buyer or any other
Person.


 


(b)           Buyer acknowledges and agrees that it
is purchasing Seller’s Common Stock subject to the Property being in “as is”
and “with all faults” condition, based upon the condition (physical or
otherwise) of the Property as of the date of this Agreement, reasonable wear
and tear and, subject to the provisions of Sections 5.8 and 5.9 of this
Agreement, loss by condemnation or fire or other casualty excepted.


 


ARTICLE IV


Representations and Warranties of Buyer


 


Buyer represents and warrants to the Seller as of the
date hereof and as of the Closing:


 


4.1.         Organization and Power.  Buyer is a corporation duly
formed, validly existing and in good standing under the Laws of the province of
Ontario, Canada and has full power and authority to execute and deliver this
Agreement and the Ancillary Documents to which it is a party, to perform its
obligations hereunder and thereunder and to consummate the Contemplated
Transactions.


 


4.2.         Authorization and Enforceability.  The execution and delivery
of this Agreement and the Ancillary Documents to which Buyer is a party and the
performance by Buyer of the Contemplated Transactions have been duly authorized
by Buyer and no other corporate proceedings on the part of Buyer (including,
without limitation, any shareholder vote or approval) are necessary to
authorize the execution, delivery and performance of this Agreement and the
Ancillary Documents to which Buyer is a party or the consummation of the
Contemplated Transactions.  This
Agreement is, and each of the Ancillary Documents to be executed and delivered
at the Closing by Buyer will be at the Closing, duly authorized, executed and
delivered by Buyer and constitute, or as of the Closing Date will constitute,
valid and legally 


 


21

















 


binding agreements of Buyer enforceable
against Buyer, in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other Laws of general applicability relating to
or affecting creditors’ rights and to general equity principles.


 


4.3.         No Violation.  The execution
and delivery by Buyer of this Agreement and the Ancillary Documents to which
Buyer is a party, consummation of the Contemplated Transactions and compliance
with the terms of this Agreement and the Ancillary Documents to which Buyer is
a party will not (a) conflict with or violate any provision of the
certificate of incorporation, bylaws or similar organizational documents of
Buyer, or (b) conflict with or violate in any material respect any Law
applicable to Buyer.  Neither Buyer nor
its Affiliates are subject to any Contract that would materially restrict Buyer’s
ability to consummate the Contemplated Transactions.


 


4.4.         Litigation.  There is no
Litigation pending or, to the Knowledge of Buyer, threatened against or
involving Buyer which questions the validity of this Agreement or any of the
Ancillary Documents to which it is a party or seeks to prohibit, enjoin or
otherwise challenge Buyer’s ability to consummate the Contemplated
Transactions.


 


4.5.         Financial Capacity. 
Buyer has, or has access to, and will have available on the Closing
Date, capital in an amount that is sufficient to pay the Estimated Closing
Consideration Amount as required by and in accordance with this Agreement.


 


4.6.         No Brokers.  Neither Buyer
nor or any of its Affiliates has employed or incurred any liability to any
broker, finder or agent for any brokerage fees, finder’s fees, commissions or
other amounts with respect to this Agreement, the Ancillary Documents or the
Contemplated Transactions.


 


4.7.         Investment Intent. 
Buyer is acquiring the shares of Seller’s Common Stock to be purchased
under this Agreement for its own account for investment, without a view to
resale or distribution thereof in violation of federal or state securities Laws
and with no present intention of distributing or reselling any part thereof.


 


4.8.         Non-Controlling Interest.  Buyer acknowledges that
Seller owns a non-controlling interest in the Company and has no right to
direct or cause the direction of the management or policies of the Company or
to otherwise Control the Company other than for those limited rights set forth
in the Basic Company Agreements.   To the
extent Seller covenants or otherwise agrees in this Agreement to cause RGI, the
Company or any of the Subsidiaries to take any action or make any decision,
such covenant or agreement shall in all cases be qualified by Seller’s ability
to cause the taking of any such action or making of any such decision under the
Basic Company Agreements.


 


4.9.         Investigation. 
Buyer is knowledgeable about the real estate industry in which the
Company operates and the Laws and regulations applicable to the Company’s
business and operations, and is experienced in the acquisition and management
of businesses.  Buyer has inspected the
1221 Property and the Other Property and has been afforded reasonable access to
the books and records of the Company for purposes of conducting a due diligence
investigation of the 1221 Property, the Other Property and the Company.  Buyer has conducted a reasonable 


 


22

















 


due diligence investigation of the 1221
Property, the Other Property and the Company, which process and the results
thereof are satisfactory to Buyer.  Buyer
does not have any knowledge of any inaccuracy or failure to be true of any of
the representations or warranties of the Seller in Article III or in any
of the Ancillary Documents.


 


4.10.       OFAC. Buyer is
in compliance with the requirements of the OFAC Orders.  Further, Buyer covenants and agrees to make
its policies, procedures and practices regarding compliance with the OFAC
Orders, if any, available to Seller for its review and inspection during normal
business hours and upon reasonable prior notice.  Neither Buyer nor any beneficial owner of
Buyer:


 


(a)           is listed on any Lists;


 


(b)           is a person who has been determined
by competent authority to be subject to the prohibitions contained in the OFAC
Orders; or


 


(c)           is owned or controlled by, or acts
for or on behalf of, any person on the Lists or any other person who has been
determined by competent authority to be subject to the prohibitions contained
in the OFAC Orders.


 


4.11.       Taxes.  Buyer’s
ownership interest in the Company as of and after the Closing Date will not
cause the Company to fail to satisfy any requirements to be a Qualified REIT
for the taxable year of the Company that includes the Closing Date.


 


ARTICLE V


Covenants


 


5.1.         Conduct of the
Company.  Except (i) to the
extent compelled or required by applicable Law or (ii) as consented to in
writing by Buyer (which consent shall not be unreasonably withheld or delayed),
during the period from the date hereof to the Closing Date, to the extent
Seller has any rights to Control such activity or matter, Seller shall, and
shall cause its representatives to:


 


(a)           Use its reasonable efforts (only to
the extent that the Seller has any rights with respect to any such activities
or matters) to cause the Company and 1221 Property Owner to conduct its
business and operations in the ordinary course, consistent with past practice;


 


(b)           Not approve of, consent, vote its
shares or otherwise act (only to the extent that the Seller has any rights with
respect to any such activities or matters) to permit the Company or 1221
Property Owner to  amend, modify or repeal the Organizational Documents of
the Company or 1221 Property Owner other than the Required Amendments;


 


(c)           Not approve of, consent, vote its
shares or otherwise act (only to the extent that the Seller has any rights with
respect to any such activities or matters) to authorize or permit the Company
or 1221 Property Owner to (i) issue, grant, sell or encumber any capital
stock (including Preferred Stock), membership interests or other securities,
options, warrants, puts, calls, subscriptions or other rights of any kind,
fixed or contingent, that directly or indirectly call for the acquisition,
issuance, sale, pledge or other disposition of any shares of capital stock 


 


23

















 


(including Preferred Stock), membership interests or
other securities in the Company or 1221 Property Owner, (ii) amend or
modify the dividend rate for the Preferred Stock, provide any option on the
part of the Company to redeem the Preferred Stock (other than the redemption
rights granted at issuance of the Preferred Stock) or permit the exchange or
conversion of the Preferred Stock into other capital stock or indebtedness of
the Company or (iii) make any other changes in the equity capital
structure of the Company and 1221 Property Owner;


 


(d)           Not approve of, consent, vote its
shares or otherwise act (only to the extent that the Seller has any rights with
respect to any such activities or matters) to authorize or permit the Company
or 1221 Property Owner to voluntarily create or assume any Lien with respect to
any of the assets of the Company or 1221 Property Owner;


 


(e)           Use its reasonable efforts (only to
the extent that the Seller has any rights with respect to any of such
activities or matters) to cause the Company to maintain the 1221 Property in
accordance with its normal and customary business practice;


 


(f)            Not approve of, consent, vote its
shares or otherwise act (only to the extent that the Seller has any rights with
respect to any such activities or matters) to authorize or permit the Company
or 1221 Property Owner to (i) incur or assume any indebtedness for
borrowed money other than the Senior Loan, (ii) repay, prepay, refinance
or modify the Senior Loan or other liability except as provided in the
Shareholders’ Agreement; provided, that, Buyer’s consent (not to be
unreasonably withheld or delayed) shall be required prior to Seller taking any
action in accordance with Section 4.1 and 4.2 of the Shareholders’
Agreement or (iii) assume or guarantee the indebtedness or other
obligations of any other Person;


 


(g)           Use its reasonable efforts (only to
the extent that the Seller has any rights with respect to any such activities
or matters) to cause the Company to not take any action that could reasonably
be expected to result in any material adverse change in the operations or
financial situation of the Company;


 


(h)           Not approve of, consent or otherwise
act (only to the extent that the Seller has any rights with respect to any such
activities or matters) to authorize or permit the Company or 1221 Property
Owner to merge or consolidate with any other entity;


 


(i)            Not approve of, consent or otherwise
act (only to the extent that the Seller has any rights with respect to any such
activities or matters) to authorize or permit the Company to make or change any
material tax election, change any annual tax accounting period, or adopt or
change any method of tax accounting, file any amended Tax Return, enter into
any closing agreement, or settle any material claim or assessment for Taxes;
and


 


(j)            Not file any voluntary, or consent
to the filing of any involuntary, petition for relief under Title 11 of the
United States Code or any successor statute or under any reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law.


 


5.2.         Certain Tax
Matters.  Buyer covenants and agrees
that following the Closing, Buyer will not take any action or fail to take any
action that will cause the Company to fail to satisfy any requirements to be a
Qualified REIT for the taxable year of the Company that begins 


 


24

















 


on or before the Closing Date and ends after
the Closing, which taxable year may be less than twelve (12) months.


 


5.3.         Non-Solicitation.  Between the date hereof and the earlier of
the Closing or the termination of this Agreement, Buyer shall not, and shall
cause its Affiliates not to solicit any employees of Seller or its Affiliates
(including the Company) to leave the employ of Seller or its Affiliates, as
applicable, or violate the terms of their contracts, or any employment
arrangements, with Seller or its Affiliates, as applicable; provided,
that nothing in this Section 5.3 shall prohibit Buyer or any of its
Affiliates from employing any such employee as a result of a general
solicitation to the public or general advertising, or the solicitation of any
individual whose employment with Seller and its Affiliates has been terminated
for at least six (6) months.


 


5.4.         Public
Announcements.


 


(a)           Except as provided in Section 5.4(b),
the initial press release regarding this Agreement and the Contemplated
Transactions shall be made at such time and in such form as Buyer and Seller
agree, provided that in the event that the parties cannot agree, either party
shall be permitted to make any disclosure required by Law.


 


(b)           Buyer recognizes that SLG, who
indirectly owns interests in Seller, is a public company.  Accordingly, Buyer acknowledges and agrees
that Seller or SLG may disclose in press releases, filings with Governmental
Authorities, financial statements and/or other communications such information
regarding the transactions contemplated hereby as may be necessary or advisable
under securities laws, rules or regulations, GAAP or other accounting rules or
procedures or SLG’s prior custom, practice or procedure.


 


5.5.         Commercially
Reasonable Efforts.  Subject to the
terms and conditions set forth herein and to applicable legal requirements,
each of the parties shall cooperate and use their respective commercially
reasonable efforts to take, or cause to be taken, all appropriate action, and
do, or cause to be done, and assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Contemplated
Transactions, including the satisfaction of the respective conditions set forth
in Article VI.


 


5.6.         [INTENTIONALLY
OMITTED]


 


5.7.         Estoppels.  Prior to the Closing, (i) Seller will
request that RGI complete an estoppel certificate substantially on the terms
set forth in Section 2.2(f) of the Shareholders’ Agreement, with such
changes as have been agreed to by RGI and Buyer, and (ii) Seller has
requested that the Company obtain, and endeavor to obtain from the Company, (a) completed
tenant estoppel certificates from each of the Identified Tenants, substantially
in the forms attached hereto as Exhibit G, and (b) a completed
lender estoppel certificate from the Senior Lender, substantially in the form
attached hereto as Exhibit H. 
Seller shall deliver any such estoppel certificates to Buyer promptly
upon receipt by Seller and Seller shall use its reasonable efforts to cause to
be delivered to Buyer prior to the Closing completed estoppel certificates from
each of the Identified Tenants.  The form
estoppel certificates shall be subject to (i) non-material modifications
thereof,  (ii) modifications thereof
to conform the same to the applicable Lease or 


 


25

















 


other information delivered to the Company
prior to the date hereof and (iii) limiting its statements “to Tenant’s
knowledge”, “Senior Lender’s knowledge” or “RGI’s knowledge”, as applicable (or
words of similar import)).  The failure
or inability of Seller to obtain such completed estoppel certificates shall not
be a condition to Buyer’s obligation to consummate the Contemplated
Transactions or otherwise affect Buyer’s obligations under this Agreement, and
Seller shall not be required to expend any money, provide any financial or
other accommodations or commence any litigation in connection with obtaining
any estoppel certificates.


 


5.8.         Damage and
Destruction.


 


(a)           If all or any part of the 1221
Property is damaged by fire or other casualty occurring on or after the date
hereof and prior to the Closing Date, whether or not such damage affects a
material part of the 1221 Property, then:


 


(i)            if (A) the
estimated cost of repair or restoration is less than or equal to $75,000,000,
and (B) the fire or other casualty does not permit Tenants comprising 25%
or greater of the gross rental income of the 1221 Property the right to
terminate their leases and (C) if the estimated time to substantially
complete such repair or restoration is twenty-four (24) months or less, neither
party shall have the right to terminate this Agreement and the parties shall
nonetheless consummate this transaction in accordance with this Agreement,
without any abatement of the Closing Consideration Amount or any liability or
obligation on the part of Seller by reason of such destruction or damage.


 


(ii)           if (A) the
estimated cost of repair or restoration exceeds $75,000,000, (B) the fire
or other casualty permits Tenants comprising 25% or greater of the gross rental
income of the 1221 Property the right to terminate their leases or (C) the
estimated time to substantially complete such repair or restoration exceeds
twenty-four (24) months, each party shall have the option, exercisable on or
prior to the Casualty Election Date, time being of the essence, to terminate
this Agreement by delivering notice of such termination to the other party,
whereupon the Deposit (together with any interest accrued thereon) shall be
returned to Buyer and this Agreement shall be deemed canceled and of no further
force or effect, and neither party shall have any further rights or liabilities
against or to the other except for such provisions which are expressly provided
in this Agreement to survive the termination hereof.  If a fire or other casualty described in this
Section 5.8(a)(ii) shall occur and neither party shall timely elect
to terminate this Agreement, then Buyer and Seller shall consummate this
transaction in accordance with this Agreement, without any abatement of the
Closing Consideration Amount or any liability or obligation on the part of
Seller by reason of such destruction or damage.


 


(b)           The estimated cost and time to repair
and/or restore the 1221 Property contemplated in Section 5.8(a) shall
be established by estimates obtained by Seller from independent
contractors.  Buyer shall have the right
to dispute any such estimates delivered by Seller by giving Seller notice
thereof and describing the basis of such dispute in reasonable detail (a “Dispute
Notice”) within ten (10) Business Days following Seller’s delivery of
such estimates, time being of the essence. 
If Buyer fails to timely deliver such a Dispute Notice, then Buyer shall
be deemed to have waived its right to dispute the same.   If Buyer shall timely deliver such 


 


26

















 


a Dispute Notice, then such dispute shall be resolved
as provided in Section 5.8(c) below. 
Seller and Buyer shall cooperate and exercise due diligence to obtain
damage estimation and insurance proceeds.


 


(c)           The provisions of this Section 5.8
supersede any Law applicable to the 1221 Property governing the effect of fire
or other casualty in contracts for real property.  Any disputes under this Section 5.8 as
to (i) the cost of repair or restoration, (ii) the time for
completion of such repair or restoration or (iii) whether such fire or
other casualty permits Tenants comprising 25% or greater of the gross rental
income of the 1221 Property the right to terminate their leases shall be resolved
by expedited arbitration before a single arbitrator in New York, New York
acceptable to both Seller and Buyer in their reasonable judgment in accordance
with the rules of the American Arbitration Association; provided
that if Seller and Buyer fail to agree on an arbitrator within five (5) Business
Days after a dispute arises, then either party may request the office of the
American Arbitration Association located in New York, New York to designate an
arbitrator.  Such arbitrator shall be an
independent architect or engineer who is impartial and has no existing or
historical personal professional relationship with Seller, Buyer or their
respective Affiliates, having at least ten (10) years of experience in the
construction of office buildings in New York, New York.  The determination of the arbitrator shall be
conclusive and binding upon the parties. 
The costs and expenses of such Arbitrator shall be borne equally by
Seller and Buyer.


 


(d)           In the event of any fire or other
casualty with respect to the 1221 Property, the Closing Date shall be extended
to the tenth (10) Business Day following the Casualty Election Date; provided,
however, the Closing Date shall not be extended if the damage caused by
such fire or other casualty has been substantially restored prior to the
Closing Date.


 


(e)           The damage by fire or other casualty
of all or any part of the Other Property shall not be cause for either party to
terminate this Agreement, and in such event the parties shall nonetheless
consummate the Contemplated Transactions in accordance with this Agreement and
the Ancillary Documents, without abatement of the Closing Consideration Amount,
provided, that, Buyer will be entitled to a credit against the
Closing Consideration Amount in an amount equal to the sum of (i) forty-five
percent (45%) of the deductible amount applicable to such fire or other
casualty under the Company’s insurance policies therefor, plus (ii) all
insurance proceeds, if any, received by Seller in respect of such fire or other
casualty and, to the extent such insurance proceeds are not received by Seller
prior to Closing, at Closing Seller shall assign to Buyer its right (if any) to
collect, and Buyer shall be entitled to collect and retain, such proceeds.


 


5.9.         Condemnation.


 


(a)           If, prior to the Closing Date, any
part of the 1221 Property is taken (other than a temporary taking), or if
Seller shall receive an official notice from any Governmental Authority having
eminent domain power over the  1221
Property of its intention to take, by eminent domain proceeding, any part of
the 1221 Property (a “Taking”), then:


 


(i)            if such Taking (A) involves
twenty-five percent (25%)  or less of the
rentable area of the 1221 Property as determined by an independent architect
chosen by 


 


27

















 


Seller (subject to
Buyer’s review and reasonable approval of such determination and the provisions
of Section 5.9(b)) and (B) does not permit Tenants comprising 25% or
greater of the gross rental income of the 1221 Property the right to terminate
their leases, then neither party shall have any right to terminate this
Agreement, and the parties shall nonetheless consummate this transaction in
accordance with this Agreement, without any abatement of the Closing
Consideration Amount or any liability or obligation on the part of Seller by
reason of such Taking.


 


(ii)           if such Taking (A) involves
more than twenty-five percent (25%)  of the
rentable area of the 1221 Property as determined by an independent architect
chosen by Seller or (B) permits Tenants comprising 25% or greater of the
gross rental income of the 1221 Property the right to terminate their leases,
then each party shall have the option, exercisable on or prior to the
Condemnation Election Date, time being of the essence, to terminate this
Agreement by delivering notice of such termination to the other party,
whereupon the Deposit (together with any interest earned thereon) shall be
returned to Buyer and this Agreement shall be deemed canceled and of no further
force or effect, and neither party shall have any further rights or liabilities
against or to the other except pursuant to the provisions of this Agreement
which are expressly provided to survive the termination hereof.  Buyer shall have the right to dispute any
such determination by an independent architect by giving Seller a notice
thereof and describing the basis of such dispute in reasonable detail within
ten (10) Business Days following Seller’s delivery of such independent
architect’s determination, time being of the essence.  If Buyer fails to timely deliver such a
notice, then Buyer shall be deemed to have waived its right to dispute the
same.  If Buyer shall timely deliver such
a notice, then such dispute shall be resolved as provided in Section 5.9(b).  If a Taking described in this Section 5.9(a)(ii) shall
occur and neither party shall timely elect to terminate this Agreement, then
Buyer and Seller shall consummate this transaction in accordance with this
Agreement, without any abatement of the Closing Consideration Amount, provided,
that, Buyer will be entitled to a credit against the Closing
Consideration Amount in an amount equal to the Taking proceeds, if any,
received by Seller prior to Closing, and to the extent the Taking Proceeds are
not received by Seller prior to Closing, at Closing Seller shall assign to
Buyer its right (if any) to collect, and Buyer shall be entitled to collect and
retain such proceeds.


 


(b)           The provisions of this Section 5.9
supersede any law applicable to the 1221 Property governing the affect of
condemnation in contracts for real property. 
Any disputes under this Section 5.9 as to whether the Taking (i) involves
more than twenty-five percent (25%)  of the
rentable area of the 1221 Property or (ii) permits Tenants comprising 25%
or greater of the gross rental income of the 1221 Property the right to
terminate their leases shall be resolved by expedited arbitration before a
single arbitrator in New York, New York acceptable to both Seller and Buyer in
their reasonable judgment in accordance with the rules of the American
Arbitration Association; provided that if Seller and Buyer fail to agree
on an arbitrator within five (5) Business Days after a dispute arises,
then either party may request the office of the American Arbitration Association
located in New York, New York to designate an arbitrator.  Such arbitrator shall be an independent
architect having at least ten (10) years of experience in the construction
of office buildings in New York, New York. 
The costs and expenses of such Arbitrator shall be borne equally by
Seller and Buyer.


 


28

















 


(c)           In the event of any Taking with
respect to the 1221 Property, the Closing Date shall be extended to the tenth
(10th) Business Day following the Condemnation
Election Date.


 


(d)           The Taking of all or any part of the
Other Property shall not be cause for either party to terminate this Agreement,
and in such event the parties shall nonetheless consummate the Contemplated
Transactions in accordance with this Agreement and the Ancillary Documents,
without abatement of the Closing Consideration Amount, provided, that,
Buyer will be entitled to a credit against the Closing Consideration Amount in
an amount equal to the Taking proceeds, if any, received by Seller prior to
Closing, and to the extent the Taking Proceeds are not received by Seller prior
to Closing, at Closing Seller shall assign to Buyer its right (if any) to
collect, and Buyer shall be entitled to collect and retain such proceeds.


 


5.10.       Required
Amendments.  At the Closing,
simultaneous with the payment by Buyer to Seller of the Estimated Closing
Consideration Amount, Seller agrees to: (i) consent in writing (and to
cause each director of the Company appointed by Seller to consent and approve
in writing) to the execution and delivery of the Required Amendments by the
Company and any resolutions or consents authorizing the execution and delivery
of the Required Amendments by the Company, (ii) request the
Company to reclassify Seller’s Common Stock into a certificate or
certificates representing 429 shares of non-voting Total Common Stock and 471
shares of voting Total Common Stock pursuant to the terms of the Required
Amendments (the “Reclassified Certificates”) and deliver same to
Seller, (iii) provided that the Company tenders for delivery the
Reclassified Certificates to Seller, surrender the existing certificate or
certificates representing all of the shares of Seller’s Common Stock to the
Company, simultaneous with the Company’s tender for delivery of the
Reclassified Certificates to Seller, and (iv) provided that the
Company delivers the Reclassified Certificates to Seller, immediately
deliver to Buyer the Reclassified Certificates, endorsed to Buyer and
accompanied by a duly executed and witnessed stock power
transferring Seller’s Common Stock to Buyer.


 


ARTICLE VI


Conditions to Closing


 


6.1.         Conditions to All
Parties’ Obligations.  The
obligations of the parties to consummate the Contemplated Transactions are
subject to the fulfillment prior to or at the Closing of each of the following
conditions:


 


(a)           No Injunction.  No Governmental Authority or federal or state
court of competent jurisdiction shall have enacted, issued, promulgated,
enforced or entered any statute, rule, regulation, Order or other notice
(whether temporary, preliminary or permanent) (collectively, the “Restraints”),
in any case which is in effect and which prevents or prohibits consummation of
the Contemplated Transactions; provided, that each of Buyer and Seller
shall use its commercially reasonable efforts to cause any such Restraint to be
vacated or lifted.


 


(b)           Waiver of Right of First Refusal.  The ROFR Waiver has been received or deemed
to have been received by Seller in accordance with the Shareholders’ Agreement,
and the ROFR Waiver has not been terminated or canceled and remains in full
force and effect.


 


29
















 


(c)           Lender Approval. 
Seller has received the Lender Approval and the Lender Approval has not
been terminated or canceled and remains in full force and effect.


 


6.2.          Conditions to Seller’s
Obligations.  The
obligations of Seller to consummate the Contemplated Transactions are subject
to the fulfillment at or prior to the Closing of each of the following
conditions (any or all of which may be waived in whole or in part by Seller):


 


(a)           Representations and Warranties. 
The representations and warranties of Buyer contained in Article IV
hereof shall be true and correct as of the Closing Date as though made as of
the Closing Date (except for representations and warranties which address
matters only as of a specific date, which representations and warranties shall
continue as of the Closing Date to be true and correct as of such specific
date), except to the extent that the failure to be so true and correct would
not have a Buyer Material Adverse Effect.


 


(b)           Performance. 
Buyer shall have performed and complied in all material respects with
all agreements and covenants required by this Agreement to be so performed or
complied with by Buyer at or prior to the Closing.


 


(c)           Deliveries.  Seller shall
have received the deliveries contemplated by Article VIII.


 


6.3.          Conditions to Buyer’s
Obligations.  The
obligations of Buyer to consummate the Contemplated Transactions are subject to
the fulfillment at or prior to the Closing of each of the following conditions
(any or all of which may be waived in whole or in part by Buyer):


 


(a)           Representations and Warranties.  
The representations and warranties of Seller contained in Article III
hereof shall be true and correct as of the Closing Date as though made as of
the Closing Date (except for representations and warranties which address
matters only as of a specific date, which representations and warranties shall
continue as of the Closing Date to be true and correct as of such specific
date), except to the extent that the failure to be so true and correct would
not have a Company Material Adverse Effect.


 


(b)           Performance. 
Seller shall have performed and complied in all material respects with
all agreements and covenants required by this Agreement to be so performed or
complied with by Seller at or prior to the Closing.


 


(c)           Deliveries.  Buyer shall
have received the deliveries contemplated by Article VII.


 


(d)           Status of Title.


 


(i)            The Company shall own one hundred percent of the
equity in each Property Owner and each Property Owner shall own the entire fee
simple estate in and to the respective Property owned by such Property
Owner.  Additionally, either the Seller shall
have delivered the following to the Title Company or the Title Company shall
have waived the requirement that any item not so delivered be provided in order
to issue title insurance coverage to Buyer (the “Title Insurance Policy”);
provided such waiver results in no increased cost to Buyer:


 


30

















 


(A)          the Title Affidavit (as hereinafter defined);


 


(B)           a copy of the Certificate of Formation, Certificate of
Good Standing and Limited Liability Company Operating Agreement of the Seller;
and


 


(C)           a copy of the Secretary’s Certificate of SLG
confirming that the Contemplated Transactions have been duly authorized on behalf
of SLG and its Affiliates pursuant to the Limited Liability Company Operating
Agreement of the Seller and an incumbency certificate of SLG certifying that
such officer has the authority to execute such Secretary’s Certificate.


 


(ii)           If, prior to the Closing Date, any revision or update
of any Preliminary Title Commitment or Survey discloses exceptions to title
other than Permitted Encumbrances (the foregoing, collectively, the “Title
Objections”), Buyer shall so notify Seller (“Buyer Objection Notice”)
(x) on or before the fifth (5th) Business Day after receipt of same if
received by Buyer on or before the fifth (5th) Business Day before the Closing,
(y) on or before one (1) Business Day after receipt of same by Buyer
if received less than five (5) Business Days before the Closing Date (but
prior to the Closing Date) or (z) on the Closing Date if Buyer becomes
aware of same on the Closing Date (such dates, the “Objection Cut-Off Date”),
time being of the essence, and Seller shall have until the Closing Date (and
may adjourn the Closing for such reasonable periods not to exceed ninety (90)
days in the aggregate) to have each such Title Objection cleared in accordance
with Section 6.3(d)(iii), hereof (a “Remedy”); provided, however,
nothing herein shall require Seller to bring any action or proceeding or take
any action or otherwise incur any costs or expenses in order to remove any
Title Objection (except that Seller shall be obligated to remove any and all
liens voluntarily placed by Seller against the Property after the date of the
Preliminary Title Commitment (“Mandatory Title Matters”)).  Seller agrees to notify Buyer within ten (10) Business
Days of Seller’s receipt of Buyer’s Objection Notice (but in no event later
than the date that is scheduled for the Closing, as the same may be adjourned
pursuant to this Section 6.3(d)(ii)) whether Seller elects to (i) Remedy
all or any of the Title Objections or (ii) grant a credit against the
Closing Consideration Amount in the amount equal to the cost of removal of any
or all such Title Objections (a “Title Objection Credit”).  Other than the Mandatory Title Matters, any
exception to title which Buyer does not raise pursuant to the terms hereof on
or before the Objection Cut-Off Date shall be deemed a Permitted Encumbrance
and not a Title Objection.  If Seller
does not elect to Remedy a Title Objection or grant a Title Objection Credit
with respect thereto at or prior to the Closing Date (as the same may be
adjourned), Buyer may at its sole and exclusive option on the Closing Date (as
the same may be adjourned) either (i) terminate this Agreement and receive
a return of its Deposit and all interest accrued thereon (and the parties shall
jointly instruct Escrow Agent to promptly return the Deposit and all interest
accrued thereon to Buyer) and Seller shall not have any further liability or
obligation to Buyer hereunder nor shall Buyer have any further liability or
obligation to Seller hereunder, except for such obligations and liabilities as
are specifically stated in this Agreement to survive the termination of this
Agreement, or (ii) elect to accept title to the Property as it then is
without any reduction in, abatement of, or credit against the Closing
Consideration Amount (other than a credit for the cost of removal of a
Mandatory Title Matter) and such exceptions shall be deemed 


 


31

















 


a Permitted Encumbrance;
if Buyer fails to make either such election, Buyer shall be deemed to have
elected option (ii).


 


(iii)          Notwithstanding anything herein to the contrary,
Seller shall be deemed to have removed or corrected each exception that is not
a Permitted Encumbrance if, in Seller’s discretion and at its sole cost and
expense and in a manner reasonably acceptable to Buyer, Seller either (A) takes
such actions as are necessary to eliminate (of record or otherwise, as
appropriate) such Title Objection, or (B) delivers its own funds (or
directs that a portion of the Closing Consideration Amount be delivered) in an
amount needed to fully discharge any such exception to the Escrow Agent with
instructions for the Escrow Agent to apply such funds to fully discharge any
such exception, together with such instruments, in recordable form, as are
necessary to enable the discharge of such exception of record or (C) causes
the Title Company to insure over and omit, and remove such exception that is
not a Permitted Encumbrance as an exception to title in the Title Policy or
affirmatively insure against the same, in each case without any additional cost
to Buyer, whether such insurance is made available in consideration of payment,
bonding, indemnity of Seller or otherwise.


 


ARTICLE VII


Deliveries by Seller at Closing


 


On the
Closing Date, Seller shall deliver or cause to be delivered to Buyer:


 


7.1.          Officer’s Certificate.  An officer’s certificate signed by a senior
officer of the Seller to the effect set forth in Sections 6.3(a) and 6.3(b) and
attaching copies of the resolutions and consents adopted by the Seller
authorizing the execution and delivery of this Agreement and the Ancillary
Documents to which Seller is a party.


 


7.2.          Resignations. Resignations
of each director and officer, if any, of the Company appointed by Seller.


 


7.3.          Share Certificates and Stock
Power.  Reclassified Certificates, if
and only if received by Seller pursuant to Section 5.10, endorsed to Buyer
and accompanied by a duly executed and witnessed stock power transferring
Seller’s Common Stock to Buyer or, if the Reclassified Certificates are not
received by Seller, the existing certificate or certificates (the “Existing
Certificates”) representing all of the shares of Seller’s Common Stock
accompanied by a duly executed and witnessed stock power transferring Seller’s
Common Stock to Buyer or to a Person designated by Buyer so long as the
transfer to such Person designated by Buyer is (i) permitted under the
Shareholders’ Agreement, (ii) does not require a new Sale Notice (as
defined in the Shareholders’ Agreement) to be delivered to RGI pursuant to the
Shareholders’ Agreement, and (iii) does not require any authorization,
consent or approval from Lender which has not already been obtained.  The parties acknowledge and agree that the
reclassification of Seller’s Common Stock and delivery of the Reclassified
Certificates by the Company to the Seller shall not be a condition to Buyer’s
obligation to consummate the Contemplated Transactions or otherwise affect
Buyer’s obligations under this Agreement; provided, however, the foregoing
acknowledgment and agreement shall not modify the obligations of Seller under Section 5.10.


 


32

















 


7.4.          ROFR Waiver and Lender
Approval.  Copies of
the fully executed ROFR Waiver and the Lender Approval.


 


7.5.          Receipt.  A receipt for the Estimated Closing
Consideration Amount.


 


7.6.          Books and Records.  Any books and records of the Company in
possession of the Seller.


 


7.7.          Title Affidavit. A title
affidavit in connection with the Title Policy in the form attached hereto as Exhibit I
(the “Title Affidavit”).


 


7.8.          FIRPTA Certificate.  A certificate signed under penalties of
perjury and in form and substance required under Section 1445 of the Code
and Treasury Regulations thereunder stating that Seller’s owner is not a “foreign
person” as defined under Section 1445 of the Code and the Treasury
Regulations thereunder.


 


7.9.          Required Amendments.  A copy of the fully executed written consent
of Seller authorizing the execution and delivery of the Required Amendments by
the Company.


 


7.10.        Further Instruments.  Such documents of further assurance
reasonably necessary and typical for transactions similar to the Contemplated
Transactions in order to complete the Contemplated Transactions.


 


ARTICLE
VIII


Deliveries by Buyer at Closing


 


On the
Closing Date, Buyer shall deliver or cause to be delivered to Seller:


 


8.1.          Officer’s Certificate.  A certificate signed by an authorized
signatory of Buyer to the effect set forth in Sections 6.2(a) and 6.2(b) and
attaching copies of the resolutions and consents adopted by Buyer authorizing
the execution and delivery of this Agreement and the Ancillary Documents to
which Buyer is a party.


 


8.2.          Closing Consideration Amount.  An amount equal to the balance of the
Estimated Closing Consideration Amount (i.e., the
Estimated Closing Consideration Amount less the Deposit and less any interest
accrued thereon), by wire transfer of immediately available funds, to the
account designated by Seller.


 


8.3.          Further Instruments.  Such documents of further assurance
reasonably necessary and typical for transactions similar to the Contemplated
Transactions in order to complete the Contemplated Transactions.


 


ARTICLE
IX


Indemnification; Survival


 


9.1.          Expiration of
Representations and Warranties.  All of the representations and warranties of
the parties set forth in this Agreement shall terminate and expire, and shall
cease to 


 


33

















 


be of any force or effect, at 5:00 P.M. (Eastern time) on the date
that is the nine (9) month anniversary of the Closing Date provided,
however, that the representations and warranties set forth in Section 3.1,
3.2, 3.4(a), 3.4(b), 3.4(c)(i), 3.4(d), 4.1, 4.2 and 4.3 shall each survive for
the period of their respective statute of limitations  and
all liability and indemnification obligations with respect to such
representations and warranties shall thereupon be extinguished.


 


9.2.          Indemnification.


 


(a)           By Buyer.  Subject to
the provisions of Section 9.1, from and after the Closing, Buyer agrees to
indemnify, defend and hold harmless Seller, its Affiliates, and their
respective officers, directors, employees, shareholders, members, partners,
agents, representatives, successors and assigns (collectively, “Seller
Indemnitees”) from and against all Losses incurred by any of the Seller
Indemnitees arising out of or relating to: (i) any breach of any
representation or warranty made by Buyer in this Agreement or (ii) any
breach of any covenant or agreement of Buyer contained in this Agreement or any
Ancillary Document.


 


(b)           By Seller.  Subject to
the provisions of Sections 9.1 and 11.1, from and after the Closing, Seller
agrees to indemnify, defend and hold harmless Buyer, its Affiliates, and their
respective officers, directors, employees, shareholders, members, partners,
agents, representatives, successors and assigns (collectively, “Buyer
Indemnitees”) from and against all Losses incurred by any of Buyer
Indemnitees arising out of or relating to: (i) any breach of any
representation or warranty made by Seller in this Agreement or (ii) any
breach of any covenant or agreement of Seller contained in this Agreement or
any Ancillary Document.


 


(c)           Limitations on Rights of Buyer
Indemnitees.


 


(i)            Seller shall not be required to indemnify Buyer
Indemnitees with respect to any claim for indemnification arising out of or
relating to matters described in Section 9.2(b) unless and until the
aggregate amount of all such claims for such matters exceeds Two Hundred Fifty
Thousand Dollars ($250,000), in which event Buyer Indemnitees will be entitled
to recover Losses arising out of or relating to such matters only to the extent
in excess thereof (the “Deductible”). 
Seller’s maximum liability to Buyer Indemnitees with respect to any
claim for indemnification arising out of or relating to matters described in Section 9.2(b) shall
not exceed Six Million ($6,000,000) in the aggregate.  No Losses shall be included in determining
whether the Deductible has been reached unless a notice seeking indemnification
for such Losses has been given by Buyer Indemnitees to Seller in accordance
with Sections 9.2(d)(i) and 9.2(d)(ii)(A).


 


(ii)           Seller shall not be required to indemnify Buyer
Indemnitees with respect to any claim for indemnification arising out of or
relating to matters described in Section 9.2(b) made by any Buyer
Indemnitee after Closing if the facts and circumstances giving rise to such
claim are known to the Buyer Indemnitee prior to the Closing.


 


(d)           Procedure.


 


(i)            Direct Claims.  If either a
Buyer Indemnitee, on the one hand, or a Seller Indemnitee, on the other hand,
shall have a claim for indemnification hereunder (the “Indemnitee”) for
any claim other than a claim asserted by a third party, the Indemnitee 


 


34

















 


shall, as promptly as is
practicable, give written notice to the party from whom indemnification is
sought (the “Indemnitor”) of the nature and, to the extent practicable,
a good faith estimate of the amount, of the claim.  The failure to make prompt delivery of such
written notice by the Indemnitee to the Indemnitor (so long as a notice
pursuant to this Section 9.2(d)(i), including the requisite certification,
is given before the expiration of the applicable period set forth in Section 9.1)
shall not relieve the Indemnitor from any liability under this Section 9.2
with respect to such matter, except to the extent the Indemnitor is actually
prejudiced by failure to give such notice.


 


(ii)           Third-Party Actions.


 


(A)          If an Indemnitee receives notice or otherwise obtains
knowledge of any matter or any threatened matter that may give rise to an
indemnification claim against the Indemnitor (the “Third Party Claim”),
then the Indemnitee shall as promptly as practicable, and in any event within
thirty (30) days of the receipt of written notice of the Third Party Claim by
the Indemnitee, deliver to the Indemnitor a written notice describing, to the
extent practicable, such matter in reasonable detail and such notice must be
accompanied by a copy of any written notice of the third party claimant to the
Indemnitee asserting the Third Party Claim. 
The failure to make prompt delivery of such written notice or of the
copy of the written notice of the third party claimant by the Indemnitee to the
Indemnitor (so long as a notice pursuant to this Section 9.2(d)(ii)(A) that
includes any written notice of the third party claimant is given before the
expiration of the applicable period set forth in Section 9.1) shall not
relieve the Indemnitor from any liability under this Section 9.2 with
respect to such matter, except to the extent the Indemnitor is actually
prejudiced by failure to give such notice. 
The Indemnitee shall deliver to the Indemnitor copies of all other
notices and documents (including court papers) received by the Indemnitee
relating to the Third Party Claim.  The
Indemnitor shall have the right, at its option, to assume the defense of any
such matter with its own counsel, provided, however, that such
counsel is reasonably satisfactory to the Indemnitee.


 


(B)           If the Indemnitor elects to assume the defense of and
indemnification for any such matter, then the Indemnitor shall proceed
diligently to defend such matter and:


 


(1)           notwithstanding anything to the contrary
contained in this Agreement, the Indemnitor shall not be required to pay or
otherwise indemnify the Indemnitee against any attorneys’ fees or other
expenses incurred on behalf of the Indemnitee in connection with such matter
following the Indemnitor’s election to assume the defense of such matter,
unless (x) the Indemnitor fails to defend diligently the action or
proceeding within ten (10) days after receiving notice of such failure
from the Indemnitee, (y) the Indemnitee reasonably shall have concluded 


 


35

















 


(upon advice of
its counsel) that there may be one or more legal defenses available to such
Indemnitee or other Indemnitees that are not available to the Indemnitor, or (z) the
Indemnitee reasonably shall have concluded (upon advice of its counsel) that,
with respect to such claims, the Indemnitee and the Indemnitor may have
different, conflicting, or adverse legal positions or interests.  In addition, the Indemnitee shall have the
right to participate in the defense thereof and to employ counsel, at its own expense,
separate from the counsel employed by the Indemnitor, it being understood that
the Indemnitor shall control such defense;


 


(2)           the Indemnitee shall, at its own expense,
make available to the Indemnitor all books, records and other documents and
materials that are under the direct or indirect control of the Indemnitee or
any of the Indemnitee’s agents and that the Indemnitor considers reasonably
necessary or desirable for the defense of such matter, and cooperate in all
reasonable ways with, and make its employees and advisors available or
otherwise render reasonable assistance to, the Indemnitor and its agents at
such times and places as may be reasonably necessary to defend against such
Third Party Claim; and


 


(3)           the Indemnitor shall not, without the
written consent of the Indemnitee, which shall not be unreasonably withheld or
delayed, settle, adjust or compromise any pending or threatened Litigation in
respect of which indemnification may be sought hereunder (whether or not the
Indemnitee is an actual or potential party to such Litigation) or consent to
the entry of any judgment which (i) does not involve any finding or
admission of any violation of applicable Laws or any violation of the rights of
any Indemnitee, (ii) does not involve any relief affecting the Indemnitee
other than monetary damages that are paid in full by the Indemnitor (other than
the Deductible) and (iii) does not, to the extent that the Indemnitee may
have any liability with respect to such Litigation, include as an unconditional
term thereof the delivery by the claimant or plaintiff to the Indemnitee of a
complete and final written release of the Indemnitee from all liability in
respect of such Litigation.


 


(C)           If the Indemnitor elects not to assume the defense of
and indemnification for such matter, then the Indemnitee shall proceed
diligently to defend such matter with the assistance of counsel reasonably
satisfactory to the Indemnitor; provided, that the Indemnitee shall not
settle, adjust or compromise such matter, or admit any liability with respect
to such matter, without the prior written consent of the Indemnitor, which
consent shall not be unreasonably withheld or delayed.


 


(e)           Subrogation.  To the extent
that the Indemnitor makes or is required to make any indemnification payment to
the Indemnitee, the Indemnitor shall be entitled to exercise, and shall be
subrogated to, any rights and remedies (including rights of indemnity, rights
of contribution and other rights of recovery) that the Indemnitee or any of the
Indemnitee’s Affiliates may have against any other Person with respect to any
Losses to which such indemnification payment is directly related, so long as
the Indemnitee is not adversely affected thereby.


 


36

















 


(f)            Exclusive
Remedies Following the Closing Date.  Following the
Closing Date, except as otherwise expressly provided herein, the
indemnification provisions of this Section 9.2 shall be the sole and exclusive remedy of the
Indemnitees, whether in contract, tort or otherwise, for all matters arising
under or in connection with this Agreement and the Contemplated Transactions,
including, without limitation, for any inaccuracy or breach of any
representation, warranty, covenant or agreement set forth herein (other than
claims of, and causes of action arising out of, fraud in the inducement in
entering into this Agreement and the Ancillary Documents).


 


(g)           Environmental Remedies. 
Notwithstanding the foregoing or anything to the contrary in this
Agreement, Buyer and its successors and assigns understand and agree that the
indemnification obligations of Seller under this Section 9.2 shall
constitute the sole and exclusive remedy of Buyer Indemnitees with respect to
any matters or claims arising under Environmental Laws, and Buyer and its
successors and assigns hereby waive, and unconditionally release Seller from,
any rights and remedies that Buyer and its successors and assigns may otherwise
have against Seller under any Environmental Law, including, without limitation,
any claims for contribution under CERCLA or common law.


 


(h)           Purchase Price Adjustment. 
Any indemnification payment pursuant to this Section 9.2 shall be
treated as an adjustment to the purchase price for tax purposes to the extent
permitted by Law.


 


(i)            ROFR Waiver/Lender Approval.  Notwithstanding anything to
the contrary contained in this Agreement or any of the Ancillary Documents, Seller’s sole obligation with respect
to obtaining the ROFR Waiver and the Lender Approval shall be to, (x) with
respect to obtaining the ROFR Waiver, execute and deliver the Sale Notice (as
defined in the Shareholders’ Agreement) to RGI, which obligation the parties
hereto agree has been satisfied, and (y) with respect to obtaining the
Lender Approval, (1) deliver to Lender any information or material (A) prepared
or procured by Buyer and (B) regarding Seller or the Contemplated
Transaction that is in Seller’s possession, each as reasonably requested by
Lender in connection with the Lender Approval, and (2) take any other
actions reasonably requested by Buyer to facilitate obtaining Lender Approval,
and Seller shall have no other obligation or liability to Buyer arising out of
or relating to obtaining the Lender Approval and the ROFR Waiver. If Buyer
shall determine that Seller is not in compliance with this Section 9.2(i),
Buyer shall, as promptly as is practicable after becoming aware of Seller’s
non-compliance, give written notice to Seller of the nature and manner in which
Seller has failed to comply and provide Seller with a reasonable period to cure
such non-compliance, subject in all respects to Section 10.1(c). The
failure to make prompt delivery of such written notice by Buyer shall relieve
Seller from any liability or obligation under this Agreement or any of the
Ancillary Documents (including Seller’s obligation to close the transactions
contemplated hereunder) solely with respect to Seller’s failure to comply with
the terms of this Section 9.2(i); provided, that the failure to make
prompt delivery of such written notice by Buyer shall not impair or otherwise
prejudice Buyer’s remedy to terminate this Agreement pursuant to the terms
hereof.


 


37

















 


ARTICLE
X


Termination; Default


 


10.1.        Termination.  This Agreement may be terminated and the
transactions contemplated hereby may be abandoned:


 


(a)           by Buyer in accordance with 6.3(d)(ii);
or


 


(b)           by written notice from either Seller or
Buyer in accordance with Section 5.8(a)(ii) or 5.9(a)(ii); or


 


(c)           by written notice from either Seller or
Buyer to the other party, at any time (i) prior to the Outside Date if
either (A) RGI exercises its right of first refusal by delivering the
Acceptance on the terms and conditions set forth in the Shareholders’ Agreement
or (B) Senior Lender delivers a Lender Rejection to Seller or the Company
or (ii) after the Outside Date if either Lender Approval or the ROFR
Waiver have not been obtained, or have been obtained but are subsequently
terminated, canceled or of no further force and effect.


 


10.2.        Procedure and Effect of
Termination.  In the
event of the termination of this Agreement and the abandonment of the
Contemplated Transactions, written notice thereof shall be given by a
terminating party to the other parties, and this Agreement shall terminate and
the Contemplated Transactions shall be abandoned without further action by any
of the parties.  If this Agreement is
terminated pursuant to Section 10.1:


 


(a)           Buyer shall promptly cause to be returned
to the Company or destroy all documents and information obtained in connection
with this Agreement and the Contemplated Transactions and all documents and
information obtained in connection with Buyer’s investigation of the Company
from the Company or its representatives, including any copies made by or
supplied to Buyer or any of Buyer’s agents of any such documents or
information, provided, Buyer may retain one copy of all such documents
and information in order to comply with internal document retention and
corporate governance policies and shall not be obligated to purge any
information stored in an electronic back-up archive.


 


(b)           In the event of the termination of this
Agreement pursuant to Section 10.1, Buyer shall be entitled to a return of
the Deposit, together with all interest accrued thereon.


 


(c)           No party hereto shall have any obligation
or liability to the other parties hereto, except that the parties hereto shall
remain bound by the provisions of this Section 10.2 and Section 5.3
and Article XI and by the provisions of the Confidentiality Agreement; provided,
that nothing herein shall relieve a defaulting or breaching party from any
liability or damages pursuant to Section 10.3 arising out of its breach of
any covenant or agreement of this Agreement.


 


10.3.        Default.


 


(a)           If Seller shall perform all of its
obligations hereunder in full compliance with the terms hereof and if all
conditions to Buyer’s obligation to close have been satisfied, and if Buyer
shall be in default in the performance of any material obligation hereunder
(including, 


 


38

















 


without limitation, its failure or refusal to consummate the
transaction contemplated by this Agreement as required by the terms hereof), or
if the failure of any of the conditions precedent to Seller’s obligation to
close under Sections 6.1 and 6.2 is caused by or is a result of a breach by
Buyer of any material representation, warranty, covenant, term, provision,
agreement or obligation of Buyer hereunder, then Seller’s sole remedy shall be
to elect to terminate this Agreement and retain the Deposit (including any
interest accrued thereon), as and for liquidated damages, it being understood
and agreed that Seller’s actual damages in such circumstances would be
extremely difficult, if not impossible, to ascertain, and, upon such payment,
this Agreement shall terminate and neither party hereto shall have any further
rights or obligations hereunder.


 


(b)           If Buyer shall perform all of its
obligations hereunder in full compliance with the terms hereof and if all
conditions to Seller’s obligation to close have been satisfied (provided
Buyer shall not be required to tender the Estimated Closing Consideration
Amount to Seller), and if Seller shall be in default in the performance of its
obligations to close the transactions contemplated hereunder, then Buyer’s sole
remedy shall be to terminate this Agreement by giving written notice thereof to
Seller and Escrow Agent, in which case, (i) the Deposit, together with all
interest accrued thereon, shall be returned to Buyer, and (ii) this
Agreement shall terminate and neither party hereto shall have any further
rights or obligations hereunder; provided, however, that if Seller shall be in
willful default in the performance of its obligations to close the transactions
contemplated hereunder, then Buyer’s sole remedy shall be to either (x) terminate
this Agreement pursuant to this Section 10.3(b) or (y) file an
action to obtain specific performance of Seller’s obligations hereunder, it
being acknowledged and agreed that the subject matter of this transaction is
unique.


 


ARTICLE
XI


Miscellaneous


 


11.1.        Expenses.  All fees and expenses incurred in connection
with the Contemplated Transactions shall be paid by the party incurring such
expenses, whether or not the Contemplated Transactions are consummated; provided
that (i) Buyer and Seller shall each pay 50% of all fees and expenses, up
to an aggregate amount equal to $20,000, associated with obtaining the Lender
Approval, and Buyer shall pay all fees and expenses in excess of $20,000
associated with obtaining the Lender Approval and (ii) Buyer and Seller
shall each pay 50% of all fees and expenses associated with the Escrow Agent
and the Escrow Agreement. The parties acknowledge that they believe that there
are no Transfer Taxes arising in connection with the Contemplated Transactions
and accordingly agree that they will not file Tax Returns with respect to
Transfer Taxes upon consummation of the Contemplated Transactions. In the event
Transfer Taxes are imposed as a result of aggregation of the Contemplated
Transactions with any subsequent transfers or any prior Transfers unrelated to
Seller’s Common Stock, Buyer shall pay all associated Transfer Taxes and shall
timely file all related Tax Returns with the applicable Taxing Authority.  Seller agrees to cooperate with Buyer in
filing any Tax Returns pursuant to the previous sentence (including having the
appropriate officers of Seller execute such Tax Returns).   In the event that, as a result of an audit
by a Taxing Authority, it is determined, after the Closing, that Transfer Taxes
are imposed solely as a result of aggregation of the Contemplated Transactions
with any other prior direct or indirect transfers made by either Seller or the
owners of the direct or indirect equity interests in Seller, then Seller shall
pay all


 


39
















 


associated
Transfer Taxes. Buyer or Seller, as the case may be, shall (i) timely
notify the other party in writing of any inquiry from or audit by any Taxing
Authority involving Transfer Taxes with respect to the Contemplated
Transactions for which the other party (the “Responsible Party”) is
liable pursuant to this Section 11.1 and (ii) promptly provide to the
Responsible Party copies of any information or document requests, notices of
proposed adjustment or similar reports or notices of deficiencies related to
such inquiry or audit; provided that failure to comply with this provision
shall not affect the Responsible Party’s liability under this Section 11.1
except to the extent such failure materially impairs the Responsible Party’s
ability to contest any such Tax Transfer Taxes. 
The Buyer or Seller, as the case may be, shall have the sole right to
control any audit or administrative or court proceeding relating to Transfer
Taxes for which it is the Responsible Party and the other party shall cooperate
in such audit or proceeding as reasonably requested by the Responsible Party
(including, but not limited to, providing the Responsible Party with a power of
attorney (or other documentation) required to authorize the Responsible Party
to represent the parties in such audit or proceeding); provided that the other
party shall be permitted, at its own expense, to be present at, and participate
in, any such audit or proceeding. 
Neither Buyer nor Seller shall settle or compromise a claim or consent
to the entry of any judgment arising out of any such inquiry or audit with
respect to a Transfer Tax for which it is not the Responsible Party without the
prior written consent of the Responsible Party, which consent shall not be
unreasonably withheld, conditioned or delayed. 
The provisions of this Section 11.1 shall survive the Closing or
termination of this Agreement.


 


11.2.        Notices.  All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made (a) as of the date delivered, if delivered personally, (b) on
the date the delivering party receives confirmation, if delivered by facsimile,
(c) three (3) Business Days after being mailed by registered or
certified mail (postage prepaid, return receipt requested) or (d) one (1) Business
Day after being sent by overnight courier (providing proof of delivery), to the
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 11.2):


 


If to Seller:                                                    c/o SL Green
Realty Corp.

420 Lexington Avenue, 19th Floor

New York, NY 10170

Attn: Marc Holliday 

Attn: Andrew S. Levine 

Fax:   (646) 293-1356


 


With a copy (which shall not constitute notice) to:


 


Fried, Frank, Harris, Shriver & Jacobson
LLP 

One New York Plaza 

New York, NY 10004-1980

Attn:  Lee S. Parks, Esq.

Fax: (212) 859-4000


 


40

















 


If to Buyer:                                                   c/o Canada
Pension Plan Investment Board 

One Queen Street East 

Toronto, Ontario

Canada

M5C 2W5

Attn:  Zachary Vaughan

Fax:  (416) 868-5046


 


With a copy (which shall not
constitute notice) to:


 


Sidley
Austin LLP


787
Seventh Avenue


New
York, New York 10019


Attn: Alan S. Weil, Esq.


Fax:
(212) 839-5599


 


11.3.        Governing Law.  This Agreement shall in all respects be
governed by, and construed in accordance with, the Laws (excluding conflict of
laws rules and principles) of the State of New York applicable to
agreements made and to be performed entirely within such State, including all
matters of construction, validity and performance.


 


11.4.        Entire Agreement.  This Agreement, together with the Schedules
and Exhibits hereto, the Ancillary Documents and the Confidentiality Agreement,
constitute the entire agreement of the parties relating to the subject matter
hereof and supersede all prior Contracts or agreements, whether oral or
written.


 


11.5.        Severability.  Should any provision of this Agreement or the
application thereof to any Person or circumstance be held invalid or
unenforceable to any extent: (a) such provision shall be ineffective to
the extent, and only to the extent, of such unenforceability or prohibition and
shall be enforced to the greatest extent permitted by Law, (b) such
unenforceability or prohibition in any jurisdiction shall not invalidate or
render unenforceable such provision as applied (i) to other Persons or
circumstances or (ii) in any other jurisdiction, and (c) such
unenforceability or prohibition shall not affect or invalidate any other
provision of this Agreement.


 


11.6.        Amendment.  Neither this Agreement nor any of the terms
hereof may be terminated, amended, supplemented or modified orally, but only by
an instrument in writing signed by Buyer and Seller; provided that the
observance of any provision of this Agreement may be waived in writing by the
party that will lose the benefit of such provision as a result of such waiver.


 


11.7.        Effect of Waiver or Consent.  No waiver or consent, express or implied, by
any party to or of any breach or default by any party in the performance by
such party of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such party of the same or any other obligations of such party hereunder.  No single or partial exercise of any right or
power, or any abandonment or discontinuance of steps to enforce any right or
power, shall preclude any other or further exercise


 


41

















 


thereof
or the exercise of any other right or power. 
Failure on the part of a party to complain of any act of any party or to
declare any party in default, irrespective of how long such failure continues,
shall not constitute a waiver by such party of its rights hereunder until the
applicable statute of limitation period has run.


 


11.8.        Parties in Interest;
Limitation on Rights of Others.  The terms of this Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
legal representatives, successors and assigns. 
Nothing in this Agreement, whether express or implied, shall be
construed to give any Person (other than the parties hereto and their
respective legal representatives, successors and assigns and as expressly
provided herein) any legal or equitable right, remedy or claim under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein, as a third party beneficiary or otherwise.


 


11.9.        Assignability/Sale
Restrictions.


 


(a)           This Agreement shall not be assigned by either Seller or
Buyer without the prior written consent of the other party, provided, that
Buyer may, without limiting Section 11.9(b), (i) assign this
Agreement and the rights and obligations hereunder, without the consent of
Seller, to an Affiliate of Buyer that is controlled by CPPIB or (ii) designate
a Person to accept delivery of the Seller’s Existing Certificates subject to
and in accordance with Section 7.3, so long as such assignment or
designation, as the case may be, is (A) permitted under the Shareholders’
Agreement, (B) does not require a new Sale Notice (as defined in the
Shareholders’ Agreement) to be delivered to RGI pursuant to the Shareholders’
Agreement, and (C) does not require any authorization, consent or approval
from Lender which has not already been obtained, and all references to Buyer
contained in this Agreement shall thereafter include such Affiliate of
Buyer.  For purposes of this Section 11.9,
the term “control” means the ownership, directly or indirectly, of more than
50% of the interests in a Person, together with the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.


 


(b)           Notwithstanding anything to the contrary
contained herein, from the period beginning on the date hereof and ending
eighteen (18) months after the Closing Date, without the prior written consent
of Seller, Buyer shall not sell, transfer or assign any of Seller’s Common
Stock or any of Buyer’s interest in this Agreement if such transaction would
yield Buyer, on a pro-rata basis based on the amount of Seller’s Common Stock
or interest sold, transferred or assigned, an amount in excess of the Closing
Consideration Amount plus all fees and expenses incurred in connection with the
Contemplated Transactions.  The
provisions of this Section 11.9(b) shall survive the Closing for a
period of eighteen (18) months.


 


11.10.      Jurisdiction; Court
Proceedings; Waiver of Jury Trial.  Any Litigation against any party to this
Agreement arising out of or in any way relating to this Agreement shall be
brought in any federal or state court located in the State of New York in New
York County and each of the parties hereby submits to the exclusive
jurisdiction of such courts for the purpose of any such Litigation; provided,
that a final judgment in any such Litigation shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law.  Each party
irrevocably and unconditionally agrees not to assert (a) any objection
which it may ever have to the laying of venue of any such Litigation in any
federal or state court


 


42

















 


located
in the State of New York in New York County,  (b) any
claim that any such Litigation brought in any such court has been brought in an
inconvenient forum and (c) any claim that such court does not have
jurisdiction with respect to such Litigation. 
To the extent that service of process by mail is permitted by
applicable Law, each party irrevocably consents to the service of process in
any such Litigation in such courts by the mailing of such process by registered
or certified mail, postage prepaid, at its address for notices provided for
herein.  Each party
irrevocably and unconditionally waives any right to a trial by jury and agrees
that any of them may file a copy of this paragraph with any court as written
evidence of the knowing, voluntary and bargained-for agreement among the
parties irrevocably to waive its right to trial by jury in any Litigation.


 


11.11.      No Other Duties.  The only duties and obligations of the
parties under this Agreement are as specifically set forth in this Agreement,
and no other duties or obligations shall be implied in fact, Law or equity, or
under any principle of fiduciary obligation.


 


11.12.      Reliance on Counsel and
Other Advisors.  Each party
has consulted such legal, financial, technical or other expert as it deems
necessary or desirable before entering into this Agreement.  Each party represents and warrants that it
has read, knows, understands and agrees with the terms and conditions of this
Agreement.


 


11.13.      Counterparts.  This Agreement may be executed by facsimile
signatures and in any number of counterparts with the same effect as if all
signatory parties had signed the same document. 
All counterparts shall be construed together and shall constitute one
and the same instrument.


 


11.14.      Further Assurance.  If at any time after the Closing any further
action is necessary or desirable to fully effect the transactions contemplated
by this Agreement or any other of the Ancillary Documents, each of the parties
shall take such further action (including the execution and delivery of such
further instruments and documents) as any other party reasonably may request.


 


(signature
pages follow)


 


43

















 


IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed and delivered in its name and on its behalf, all as of the day
and year first above written.


 


	
   

  	
  CPPIB
  REI US RE-5, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GREEN
  HILL ACQUISITION LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


The undersigned hereby acknowledges


and consents to the provisions of


Sections 2.4(e) only:


 


 


	
  CANADA
  PENSION PLAN INVESTMENT BOARD

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  SL
  GREEN REALTY CORP.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


44