Exhibit 10.1


 




 





 


SHARE PURCHASE AGREEMENT


 


 


dated as of


 


 


December 24, 2003


 


 


by and between


 


 


THE MCGRAW-HILL COMPANIES, INC.


 


as Seller


 


and


 


 


GREEN HILL ACQUISITION LLC


 


 


as Purchaser


 




 





 

















 


                                                                      TABLE
OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DEFINITIONS

  	
   

  	
  -2-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
   

  	
  -2-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  
	
  PURCHASE
  AND SALE OF SHARES

  
	
   

  	
  -9-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Agreement to Purchase and Sell

  	
   

  	
  -9-

  
	
  Section 2.2

  	
  Purchase Price

  	
   

  	
  -9-

  
	
  Section 2.3

  	
  Deposit Letter of Credit

  	
   

  	
  -10-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  
	
  DEPOSIT

  
	
   

  	
   

  	
   

  	
  -10-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Deposit.

  	
   

  	
  -10-

  
	
  Section 3.2

  	
  Application of Deposit

  	
   

  	
  -10-

  
	
  Section
  3.3

  	
  Escrow Agent

  	
   

  	
  -11-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  
	
  TITLE;
  CLOSING

  
	
   

  	
   

  	
   

  	
  -14-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  4.1

  	
  Title to Company Interests and Property

  	
   

  	
  -14-

  
	
  Section
  4.2

  	
  Closing Date

  	
   

  	
  -14-

  
	
  Section
  4.3

  	
  Purchase Price Adjustments

  	
   

  	
  -15-

  
	
  Section
  4.4

  	
  Transfer Taxes

  	
   

  	
  -17-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  
	
  REPRESENTATIONS
  AND WARRANTIES OF SELLER.

  
	
   

  	
   

  	
   

  	
  -17-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  5.1

  	
  Organization; Authorization; Etc.

  	
   

  	
  -17-

  
	
  Section
  5.2

  	
  No Conflict

  	
   

  	
  -17-

  
	
  Section
  5.3

  	
  Taxes

  	
   

  	
  -18-

  
	
  Section
  5.4

  	
  Orders, Claims or Judgements

  	
   

  	
  -19-

  
	
  Section
  5.5

  	
  Insolvency

  	
   

  	
  -19-

  
	
  Section
  5.6

  	
  The Basic Company Agreements

  	
   

  	
  -20-

  
	
  Section
  5.7

  	
  Intentionally Omitted

  	
   

  	
  -20-

  
	
  Section
  5.8

  	
  Company Organization

  	
   

  	
  -20-

  
	
  Section
  5.9

  	
  Company Conduct of Business

  	
   

  	
  -21-

  
					



 


-i-

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  5.10

  	
  Ownership and Possession of Shares

  	
   

  	
  -21-

  
	
  Section
  5.11

  	
  Capitalization

  	
   

  	
  -22-

  
	
  Section
  5.12

  	
  Pending Litigation

  	
   

  	
  -22-

  
	
  Section
  5.13

  	
  Options to Purchase

  	
   

  	
  -22-

  
	
  Section
  5.14

  	
  Hazardous Materials

  	
   

  	
  -22-

  
	
  Section
  5.15

  	
  Condemnation

  	
   

  	
  -23-

  
	
  Section
  5.16

  	
  McGraw-Hill Lease

  	
   

  	
  -23-

  
	
  Section
  5.17

  	
  Financial Statements

  	
   

  	
  -23-

  
	
  Section
  5.18

  	
  Capital Contributions

  	
   

  	
  -24-

  
	
  Section
  5.19

  	
  Disclaimer as to Subsidiaries

  	
   

  	
  -24-

  
	
  Section
  5.20

  	
  Disclaimer as to Representations

  	
   

  	
  -24-

  
	
  Section
  5.21

  	
  Knowledge of Seller

  	
   

  	
  -24-

  
	
  Section
  5.22

  	
  Insurance

  	
   

  	
  -24-

  
	
  Section
  5.23

  	
  No Undisclosed Liabilities

  	
   

  	
  -25-

  
	
  Section
  5.24

  	
  Manager’s Certificate

  	
   

  	
  -25-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  
	
  REPRESENTATIONS
  AND WARRANTIES OF PURCHASER

  
	
   

  	
   

  	
   

  	
  -25-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  6.1

  	
  Organization; Authorization; Etc.

  	
   

  	
  -25-

  
	
  Section
  6.2

  	
  No Conflict

  	
   

  	
  -26-

  
	
  Section
  6.3

  	
  No Orders, Etc.

  	
   

  	
  -26-

  
	
  Section
  6.4

  	
  Insolvency

  	
   

  	
  -26-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  
	
  SURVIVAL
  OF REPRESENTATIONS AND WARRANTIES;

  
	
  INDEMNIFICATION;
  EXCLUSIVE REMEDIES

  
	
   

  	
   

  	
   

  	
  -27-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  7.1

  	
  Indemnification

  	
   

  	
  -27-

  
	
  Section
  7.2

  	
  Warranty Claims

  	
   

  	
  -28-

  
	
  Section
  7.3

  	
  Indemnification Procedure

  	
   

  	
  -28-

  
	
  Section
  7.4

  	
  Sole Remedy.

  	
   

  	
  -29-

  
	
  Section
  7.5

  	
  Indemnification as Adjustment to Interest Purchase Price

  	
   

  	
  -30-

  
	
  Section
  7.6

  	
  Limitation of Liability

  	
   

  	
  -30-

  
	
  Section
  7.7

  	
  Survival

  	
   

  	
  -31-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  
	
  INTERIM
  COVENANTS

  
	
   

  	
   

  	
   

  	
  -31-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  8.1

  	
  Seller’s Covenants

  	
   

  	
  -31-

  
	
  Section
  8.2

  	
  Access and Investigation

  	
   

  	
  -33-

  
	
   

  	
   

  	
   

  	
   

  



 


-ii-

















 


	
   

  	
  Page

  
	
   

  
	
  ARTICLE
  IX

  
	
  CLOSING
  CONDITIONS

  
	
   

  	
   

  	
   

  	
  -33-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  9.1

  	
  Conditions to Obligations of Seller

  	
   

  	
  -33-

  
	
  Section
  9.2

  	
  Conditions to Obligations of Purchaser

  	
   

  	
  -34-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  
	
  CLOSING
  DELIVERIES

  
	
   

  	
   

  	
   

  	
  -37-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  10.1

  	
  Seller’s Deliveries

  	
   

  	
  -37-

  
	
  Section
  10.2

  	
  Purchaser’s Deliveries

  	
   

  	
  -38-

  
	
  Section
  10.3

  	
  Estoppel Certificates

  	
   

  	
  -39-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  
	
  BROKER

  
	
   

  	
   

  	
   

  	
  -40-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  
	
  DEFAULT

  
	
   

  	
   

  	
   

  	
  -41-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  12.1

  	
  Purchaser Default

  	
   

  	
  -41-

  
	
  Section
  12.2

  	
  Seller Default

  	
   

  	
  -41-

  
	
  Section
  12.3

  	
  No Personal Liability

  	
   

  	
  -42-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII

  
	
  CASUALTY
  AND CONDEMNATION

  
	
   

  	
   

  	
   

  	
  -42-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  13.1

  	
  Condemnation

  	
   

  	
  -42-

  
	
  Section
  13.2

  	
  Casualty

  	
   

  	
  -43-

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XIV

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
  -43-

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  14.1

  	
  Notices

  	
   

  	
  -43-

  
	
  Section
  14.2

  	
  Governing Law; Venue

  	
   

  	
  -45-

  
	
  Section
  14.3

  	
  Headings

  	
   

  	
  -45-

  
	
  Section
  14.4

  	
  Business Days

  	
   

  	
  -45-

  
	
  Section
  14.5

  	
  Counterpart Copies

  	
   

  	
  -46-

  
	
  Section
  14.6

  	
  Binding Effect

  	
   

  	
  -46-

  
	
  Section
  14.7

  	
  Successors and Assigns

  	
   

  	
  -46-

  
	
  Section
  14.8

  	
  Assignment

  	
   

  	
  -46-

  
	
  Section
  14.9

  	
  Interpretation

  	
   

  	
  -46-

  
	
  Section
  14.10

  	
  Entire Agreement

  	
   

  	
  -47-

  
	
  Section
  14.11

  	
  Severability

  	
   

  	
  -47-

  
	
  Section
  14.12

  	
  Exhibits

  	
   

  	
  -47-

  
	
  Section
  14.13

  	
  Prevailing Party

  	
   

  	
  -47-

  



 


-iii-

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  14.14

  	
  No Recording

  	
   

  	
  -47-

  
	
  Section
  14.15

  	
  No Other Parties

  	
   

  	
  -47-

  
	
  Section
  14.16

  	
  Waiver of Trial by Jury

  	
   

  	
  -48-

  
	
  Section
  14.17

  	
  Confidentiality

  	
   

  	
  -48-

  
	
  Section
  14.18

  	
  Further Assurances

  	
   

  	
  -50-

  
	
  Section
  14.19

  	
  Dividends after Closing

  	
   

  	
  -50-

  
	
   

  	
   

  	
   

  	
   

  



 


-iv-

















 


	
  EXHIBITS
  AND SCHEDULES:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit
  A

  	
  —

  	
  Description
  of 1221 Avenue of the Americas Property

  	
   

  
	
  Exhibit
  B-1

  	
  —

  	
  Description
  of 166 West 48th Street Property

  	
   

  
	
  Exhibit
  B-2

  	
  —

  	
  Description
  of 151West 48th Street Property

  	
   

  
	
  Exhibit
  C

  	
  —

  	
  Reference
  Balance Sheet

  	
   

  
	
  Exhibit
  D

  	
  —

  	
  Form
  Deposit Letter of Credit

  	
   

  
	
  Exhibit
  E-1

  	
  —

  	
  Form
  of MGH Estoppel Certificate

  	
   

  
	
  Exhibit
  E-2

  	
  —

  	
  Form
  of Tenant Estoppel Certificate

  	
   

  
	
  Exhibit
  F

  	
  —

  	
  Form
  of Manager’s Certificate

  	
   

  
	
  Exhibit
  G

  	
  —

  	
  Form
  of Seller’s Estoppel

  	
   

  
	
  Exhibit
  H

  	
  —

  	
  Form
  of Non-Imputation Affidavit

  	
   

  
	
  Exhibit
  I

  	
  —

  	
  Pre-Closing
  Balance Sheet

  	
   

  
	
  Exhibit
  J

  	
  —

  	
  Form
  of Restated Certificate of Incorporation

  	
   

  
	
  Exhibit
  K

  	
  —

  	
  Form
  of Amended Bylaws

  	
   

  
	
  Exhibit
  L

  	
  —

  	
  Form
  of Shareholders’ Agreement

  	
   

  
	
  Exhibit
  M

  	
  —

  	
  Form
  of First Amendment to Management Agreement

  	
   

  
	
  Exhibit
  N

  	
  —

  	
  Form
  of Third Amendment to RGI Lease

  	
   

  
	
  Exhibit
  O

  	
  —

  	
  Form
  of REIT Qualification Opinion

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


	
  Schedule
  3.3(j)

  	
  —

  	
  Permitted
  Investments

  	
   

  
	
  Schedule
  4.1(a)

  	
  —

  	
  Interest
  Permitted Encumbrances

  	
   

  
	
  Schedule
  5.6

  	
  —

  	
  Basic
  Company Agreements and Defaults

  	
   

  
	
  Schedule
  5.14

  	
  —

  	
  Environmental
  Matters

  	
   

  
	
  Schedule
  9.2(b)

  	
  —

  	
  Permitted
  Encumbrances

  	
   

  
	
  Schedule
  9.2(f)

  	
  —

  	
  Required
  Consents

  	
   

  



 


-v-

















 


SHARE PURCHASE AGREEMENT


 


 


SHARE PURCHASE AGREEMENT, dated as of the 24th
day of December, 2003 by and between THE MCGRAW-HILL COMPANIES, INC., a New
York corporation (the “Seller”), having an address at 1221 Avenue of the
Americas, New York, New York 10020 and GREEN HILL ACQUISITION LLC, a Delaware
limited liability company (“Purchaser”), having an address at 420
Lexington Avenue, New York, New York 
10170.


 


W I T N E S S E T H:


 


WHEREAS, Seller and Rockefeller Group
International, Inc., a New York corporation (“RGI”), are the sole
shareholders of Rock-McGraw, Inc., a New York corporation (the “Company”)
with Seller owning nine hundred (900) shares (the “Shares”) of the
issued and outstanding capital stock of the Company;


 


WHEREAS, the Company is the (i) sole equity
member of 1221 Avenue Holdings LLC, a Delaware limited liability company (“Holdings”),
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 the all improvements situated thereon being hereinafter
referred to as the “1221 Avenue of the Americas Property”) and (ii)
owner of all of the outstanding shares of Brumas Pembroke Inc. (“BPI”)
and Night Watch Realty Corp. (“NWRC”, and together with BPI, the “Subsidiaries”)
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
West 48th Street Property”) and 151 West 48th Street,
New York, New York (the “151 West 48th Street Property” and
together with the 1221 Avenue of the Americas Property and the 166 West 48th
Street Property, the “Property”), respectively, and more particularly
described on Exhibits B-1 and B-2 hereto; and


 


WHEREAS, Seller desires to sell, and
Purchaser desires to purchase, the shareholder interests held by Seller in the
Company evidenced by the Shares (such shareholder interests being referred to
hereinafter as the “Company Interests”) on the terms and conditions
hereinafter set forth.


 


NOW, THEREFORE, in consideration of the
mutual covenants and agreements set forth herein and other good and valuable
consideration, the receipt and 


 

















 


sufficiency of which are hereby acknowledged by the parties hereto,
such parties do hereby agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


                                Section
I.1             Definitions.  The following terms shall have the following meanings:


 


“151 West 48th Street Property”
shall have the meaning assigned thereto in the Recitals hereto.


 


“166 West 48th Street Property”
shall have the meaning assigned thereto in the Recitals hereto.


 


“1221 Avenue of the Americas Property”
shall have the meaning assigned thereto in the Recitals hereto.


 


“Auditor” shall have the meaning
assigned thereto in Section 4.3(c) hereof.


 


“Balance of the Purchase Price” shall
have the meaning assigned thereto in Section 2.2(c) hereof.


 


“Balance Sheet” shall mean either the
Reference Balance Sheet, the Pre-Closing Balance Sheet or the Closing Balance
Sheet, as the case may be.


 


“Basic Agreement” means that certain
Basic Agreement dated as of May 1, 1969 between Seller and Rockefeller
Center, Inc. (predecessor in interest to RGI).


 


“Basic Company Agreements” shall have
the meaning assigned thereto in Section 5.6 hereof.


 


“Broker” shall have the meaning
assigned thereto in Article XI hereof.


 


“Business Day” shall have the meaning
assigned thereto in Section 14.4 hereof.


 


-2-

















 


“Closing” shall have the meaning
assigned thereto in Section 4.2 hereof.


 


“Closing Balance Sheet” means the
balance sheet for the Company as of December 31, 2003 prepared in accordance
with Section 4.3(b) hereof.


 


“Closing Certificate” shall have the
meaning assigned thereto in Section 10.1(j) hereof.


 


“Closing Date” shall have the meaning
assigned thereto in Section 4.2 hereof.


 


“Closing Date Working Capital” shall
have the meaning assigned thereto in Section 4.3(b) hereof.


 


“Code” means the Internal Revenue Code
of 1986, as amended.


 


“Company” shall have the meaning
assigned thereto in the Recitals hereof.


 


“Company Debt” shall mean difference
between (A) the sum of (i) the outstanding principal balance of any
indebtedness of the Company secured by a mortgage on the Property and (ii) the
outstanding principal balance of the E&P Distribution Borrowing and (B) the
amount of any cash and/or cash equivalents (which shall include items
identified as “CMA” and “Short Term Investments” on any Balance Sheet of the
Company) retained by the Company.


 


“Company Interests” shall have the
meaning assigned thereto in the Recitals hereto.


 


“Current Assets” shall mean the amount
set forth as “current assets” on the applicable Balance Sheet of the Company
for the date at issue.


 


“Current Liabilities” shall mean the
amount set forth as “current liabilities” on the applicable Balance Sheet of
the Company for the date at issue, and shall include, for purposes of this
Agreement, all liabilities of the Company as of the date of such Balance Sheet
which are (i) payable not more than one (1) year from the date incurred, (ii)
pursuant to written agreements entered into by the Company, and (iii) 


 


-3-

















 


incurred in connection with services which have been fully performed or
rendered to the Company or goods which have been delivered.


 


“Deposit” shall have the meaning
assigned thereto in Section 2.2(a) hereof.


 


“Deposit Letter of Credit” shall have
the meaning assigned thereto in Section 2.3 hereof.


 


“Determination Date” shall have the
meaning assigned thereto in Section 4.3(c) hereof.


 


“E&P Distribution Borrowing” shall
mean any borrowing by the Company for the purpose of paying all or a portion of
the E&P Dividend or any amounts due under any notes issued by the Company
in payment of the E&P Dividend and such other uses as the Company may
determine.


 


“E&P Dividend” shall mean the
dividend declared by the Company prior to the date hereof to shareholders of
record as of December 23, 2003 in the amount of $230,000,000.


 


“Environmental Laws” means any
existing federal, state or local law, ordinance, rule or regulation which
pertains to soil, water, air or any other aspect of the environment, including
health, industrial hygiene or environmental conditions, Hazardous Materials,
natural resources, pollution, or environmental safety with respect to the
Property including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, the Resource Conservation and
Recovery Act of 1976, the Clean Water Act, the Safe Water Drinking Act, the
Federal Water Pollution Control Act, the Hazardous Materials Transportation
Act, the Clean Air Act, the Federal Insecticide Fungicide & Rodenticide
Act, Emergency Planning and Community Right-To-Know Act, Occupational Safety
and Health Act, the Residential Lead-Based Paint Hazard Reduction Act or any
analogous state or local laws, any super-lien and/or environmental clean-up
statutes, any amendments thereto and the regulations promulgated pursuant to
such laws, and amendments to any of the foregoing.


 


“Escrow Agent” shall have the meaning
assigned thereto in Section 3.1 hereof.


 


-4-

















 


“Estoppel Shortfall” shall have the
meaning assigned thereto in Section 10.3 hereof.


 


“Existing Shareholders” shall mean
Seller and RGI.


 


“GAAP” shall mean United States
generally accepted accounting principles, consistently applied.  All financial statements and balance sheets
to be delivered in accordance with this Agreement shall be prepared in accordance
with GAAP.


 


“Governmental Authority” means any
governmental, quasi-governmental, regulatory, administrative or judicial
agency, body or entity, foreign or domestic.


 


“Hazardous Materials” shall mean
asbestos, urea formaldehyde insulation, lead, petroleum products and any
fraction thereof, mercury, oil, PCB’s, mold, toxic mold, mycotoxins, fungus or
any pathogen or other biological agent, manufactured gas plant waste, or any
other substances or materials which are regulated or governed under the
Environmental Laws.


 


“Holdings” shall have the meaning
assigned thereto in the Recitals hereof.


 


“Indemnifying Party” shall have the
meaning assigned thereto in Section 7.3 hereof.


 


“Informed Party” shall have the
meaning assigned thereto in Section 14.17 hereof.


 


“Interest” shall have the meaning
assigned thereto in Section 3.2(a) hereof.


 


“Interest Permitted Encumbrances”
shall have the meaning assigned thereto in Section 4.1(a) hereof.


 


“Interest Purchase Price” shall have
the meaning assigned thereto in Section 2.2 hereof.


 


-5-

















 


“Law” means all federal, state or
local laws, common laws, regulations, rules, ordinances, orders, codes,
licenses, permits, decrees and judgments of or by any Governmental Authority.


 


“Liability Cap” shall have the meaning
set forth in Section 7.6 hereof.


 


“Lien” means any lien, mortgage,
pledge, security interest, option, charge, restriction, easement, encumbrance
claim, lease, right of first refusal, preemptive right, transfer restriction
under any agreement or any other restriction or limitation whatsoever.


 


“Manager’s Certificate” shall mean a
certificate (together with all schedules and exhibits thereto) executed by the
property manager of the Property, which may be relied upon by Purchaser, in the
form attached as Exhibit F.


 


“McGraw-Hill Lease” means the Lease
dated March 27, 1998 between the Company and The McGraw-Hill Companies, Inc.,
as the same may have been amended and/or modified.


 


“McGraw Hill Premises” means the
premises demised to Seller under the McGraw-Hill Lease.


 


“MGH Estoppel” shall have the meaning
assigned thereto in Section 10.1(d) hereof.


 


“Order” shall have the meaning
assigned thereto in Section 9.1(b) hereof.


 


“Permitted Assignee” shall have the
meaning assigned thereto in Section 
14.8 hereof.


 


“Permitted Encumbrances” shall mean,
with respect to (a) the 1221 Avenue of the Americas Property, those matters set
forth on Schedule 9.2(b) attached hereto relating to the 1221 Avenue of
the Americas Property, (b) the 166 West 48th Street Property, those
matters set forth on Schedule 9.2(b) relating to the 166 West 48th
Street Property and (c) the 151 West 48th Street Property, those
matters set forth on Schedule 9.2(b) relating to the 151 West 48th
Street Property.


 


“Permitted Investments” shall have the
meaning assigned thereto in Section 3.3(j) hereof.


 


-6-

















 


“Person” shall mean any individual,
corporation (including any non-profit corporation), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, or other entity or Governmental
Authority.


 


“Pre-Closing Balance Sheet” means a
projection of Working Capital of the Company as of December 31, 2003 prepared
by the Company (i) based off the most recent balance sheet of the Company, to
the extent one more recent than the Reference Balance Sheet exists (but in any
event in substantially the same form as the Reference Balance Sheet), (ii) in
accordance with GAAP, (iii) in a manner consistent with manner of preparation
of the Reference Balance Sheet of the Company, and (iv) taking into account the
E&P Distribution Borrowing and the E&P Dividend prior to Closing.


 


“Pre-Closing Working Capital” shall
have the meaning assigned thereto in Section 4.3(a) hereof.


 


“Property” shall have the meaning
assigned thereto in the Recitals hereto.


 


“Purchaser” shall have the meaning
assigned thereto in the Preamble 
hereof.


 


“Purchaser’s Advisors” shall have the
meaning assigned thereto in Section 8.2 hereof.


 


“Purchaser’s Closing Documents” shall
have the meaning assigned thereto in Section 10.2 hereof.


 


“Purchaser Indemnified Party” shall
have the meaning assigned thereto in Section 7.1(a) hereof.


 


“Purchaser Warranty Claim Termination Date”
shall have the meaning assigned thereto in Section 7.1(c) hereof.


 


“Reference Balance Sheet” means the
September 30, 2003 balance sheet of the Company annexed hereto as Exhibit C.


 


“REIT Condition” shall mean that (i)
there has been no passage after the date hereof, but prior to December 29, 2003
(or December 31, 2003, if the circumstances described in subclause (ii) of the
definition of REIT Condition are in effect on December 


 


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29, 2003) of legislation that would prohibit the Company from becoming
a REIT effective as of January 1, 2004 or maintaining its REIT status
thereafter, nor has any legislation, rules or regulations been approved by the
House Ways and Means Committee or the Senate Finance Committee after the date
hereof but prior to December 29, 2003 (or December 31, 2003, if the
circumstances described in subclause (ii) of the definition of REIT Condition
are in effect on December 29, 2003) that would prohibit “closely held” or
“private” REITS which would have the effect of prohibiting the Company from
becoming a REIT effective as of January 1, 2004 or maintaining its REIT status
thereafter, as contemplated herein, and (ii) none of the House, the Senate, the
House Ways and Means Committee or the Senate Finance Committee is in session on
December 29, 2003 or has announced that it (or any of them) will be in session
on any of December 29, 2003, December 30, 2003 or December 31, 2003.


 


“Representatives” shall have the
meaning assigned thereto in Section 14.17 hereof.


 


“Revenues” shall mean all revenues of
the Company from all sources, including, without limitation, from the proceeds
of operations, leasing, financing and payments on construction warranties and
guarantees.


 


“RGI” shall have the meaning assigned
thereto in the Recitals hereto.


 


“Seller” shall have the meaning
assigned thereto in the Preamble hereof.


 


“Seller Estoppels” shall have the
meaning assigned thereto in Section 10.3 hereof.


 


“Seller’s Closing Documents” shall
have the meaning assigned thereto in Section 10.1 hereof.


 


“Seller Indemnified Party” shall have
the meaning assigned thereto in Section 7.1(b) hereof.


 


“Seller Warranty Claim Termination Date”
shall have the meaning assigned thereto in Section 7.1(c) hereof.


 


“Shares” shall have the meaning
assigned thereto in the Recitals hereto.


 


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“Subsidiaries” shall have the meaning
assigned thereto in the Recitals hereto.


 


“Target Working Capital Amount” shall
mean $16,600,000.


 


“Tenant Estoppels” shall have the
meaning assigned thereto in Section 10.3 hereof.


 


“Violations” shall have the meaning
assigned thereto in Section 4.1(b) 
hereof.


“Warranty Claim” shall have the
meaning assigned thereto in Section 7.2 hereof.


 


“Working Capital” means, as of the
date of any Balance Sheet (including, but not limited to, the Pre-Closing
Balance Sheet) of the Company certified by Seller as being accurate to the
knowledge of Seller, the sum of (i) an amount equal to the difference between
(x) Current Assets and (y) Current Liabilities (other than liabilities
attributable to any indebtedness for borrowed money including, without
limitation, (a) indebtedness of the Company secured by a mortgage on the
Property and (b) the E&P Distribution Borrowing), plus (ii) all unbudgeted
capital expenditures made by the Company from and after the date hereof, all as
more particularly shown on any such Balance Sheet of the Company.


 


 


ARTICLE II


 


PURCHASE AND SALE OF SHARES


 


                                Section
II.1            Agreement to Purchase
and Sell.  Subject to the terms and conditions hereinafter set forth,
Seller, in consideration of the payment of the Interest Purchase Price and the
performance by Purchaser of the agreements of Purchaser herein contained,
agrees to sell, assign and convey to Purchaser, and Purchaser, in consider­ation
of the performance of the agreements of Seller and in reliance upon the
representations and warranties of Seller herein contained, agrees to buy and
pay for, the Company Interests.


 


                                Section
II.2            Purchase Price.  The purchase price for the Company Interests (the “Interest
Purchase Price”) shall be FOUR HUNDRED FIFTY MILLION 


 


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DOLLARS ($450,000,000), subject to adjustment
in accordance with Section 4.3 hereof. 
The Interest Purchase Price shall be payable as follows:


 


(1)           a cash deposit in the amount of FORTY FIVE MILLION DOLLARS
($45,000,000) (the “Deposit”) delivered into escrow pursuant to the
provisions of Section 3.1 hereof; and


 


(2)           an amount equal to the Interest Purchase Price less the
Deposit (the “Balance of the Purchase Price”) payable by wire transfer
of immediately available funds to such financial institutions as may be
designated by Seller, on the Closing of the transactions contemplated hereby.


 


                                Section
II.3            Deposit Letter of
Credit.  In lieu of a cash Deposit, Purchaser may
deliver to Escrow Agent a clean, unconditional and irrevocable letter of credit
having a term of not less than one (1) year (a “Deposit Letter of Credit”),
naming Seller as the beneficiary, in the form attached hereto as Exhibit D,
issued by Fleet Bank, NA or any other bank which is reasonably acceptable to
Seller.  If Purchaser delivers cash for
the Deposit, Purchaser may thereafter substitute a letter of credit for all,
but not for part of, such cash deposit. 
If at Closing the Deposit consists of a Deposit Letter of Credit, then
at Closing (i) Purchaser shall wire transfer to Seller, in addition to the wire
transfers set forth in Section 2.2(b) above, the full amount of the Deposit,
(ii) such amount shall be delivered to Seller, (iii) Escrow Agent shall return
to Purchaser such Deposit Letter of Credit, undrawn and (iv) Seller shall, upon
request by Purchaser, deliver a letter releasing Purchaser from its obligations
with respect to the Deposit Letter of Credit and relinquishing all of Seller’s
rights to such Deposit Letter of Credit.


 


 


 


ARTICLE III


 


DEPOSIT


 


Section 1.2             Deposit.  Concurrently with the execution of this Agreement, and as a
condition precedent to the effectiveness of this Agreement, Purchaser shall
deposit with Skadden, Arps, Slate, Meagher & Flom LLP (the “Escrow Agent”)
the Deposit, the receipt of which is hereby acknowledged by Escrow Agent’s
execution hereof.  The Deposit and
Interest accrued thereon shall be held in escrow, and not in trust, by the
Escrow Agent in an interest bearing account pursuant to the terms and
conditions contained herein.


 


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                                Section
III.4           Application of Deposit.


 


(1)           If the Closing occurs as contemplated hereunder, then the
Deposit shall be paid to Seller and the interest on the Deposit (“Interest”),
if any, shall be paid or credited to the Purchaser.


 


(2)           In the event that the Closing does not occur for any
reason,  the Deposit and all Interest
shall be paid to and retained by the party entitled thereto pursuant to this
Agreement.


 


(3)           Until such time that the Deposit and Interest are released
pursuant to this Section 3.2, Purchaser shall be considered the owner of the
Deposit and Interest for tax purposes.


 


(4)           If either party makes a demand upon the Escrow Agent for
delivery of the Deposit and/or Interest, the Escrow Agent shall promptly give
notice to the other party of such demand. 
If a notice of objection to the proposed payment is not received from
the other party within seven (7) Business Days after receipt by such other
party of the notice from the Escrow Agent, the Escrow Agent is hereby
authorized and instructed to deliver the Deposit and all Interest to the party
who made the demand.  If the Escrow
Agent receives a notice of objection within said seven (7) Business Day period,
then the Escrow Agent shall deliver a copy of such objection letter to the
other party and shall have the right, at its option, to either (i) continue to
hold the Deposit and thereafter pay it to the party entitled thereto when the
Escrow Agent receives (a) a notice from the objecting party withdrawing the
objection, (b) a notice signed by both parties directing disposition of the
Deposit and Interest or (c) a final judgment or order of a court of competent
jurisdiction or (ii) deposit the same with a court of competent jurisdiction in
the State of New York, and Escrow Agent shall rely upon the decision of such
court or a written statement executed by both Seller and Purchaser setting
forth how the Deposit and Interest should be released.


 


(5)           If Purchaser elects to deliver the Deposit Letter of
Credit in lieu of a cash Deposit pursuant to Section 2.3 hereof, then in any
instance under this Agreement where the Deposit is to be paid (a) to Seller,
Escrow Agent shall deliver the Deposit Letter of Credit to Seller upon demand
and Seller shall be entitled to draw upon the Deposit Letter of Credit or (b)
to Purchaser, Escrow Agent shall return the Deposit Letter of Credit to
Purchaser.


 


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(6)           If the Deposit Letter of Credit has not been renewed or
replaced within thirty (30) days prior to its expiry, Escrow Agent, without notice
to Purchaser, shall deliver the Deposit Letter of Credit to Seller and Seller
shall be entitled to draw the Deposit Letter of Credit and return the proceeds
thereof to Escrow Agent to hold as a cash Deposit in accordance with this
Agreement.


 


                                Section
III.5           Escrow Agent.  The parties further agree that:


 


(7)           The Escrow Agent is executing this Agreement to
acknowledge the Escrow Agent’s responsibilities hereunder, which may be
modified only by a written amendment signed by all of the parties.  Any amendment to this Agreement that is not
signed by the Escrow Agent shall be effective as to the parties thereto, but
shall not be binding on the Escrow Agent to the extent the same modifies the
duties or responsibilities of the Escrow Agent.  Escrow Agent shall accept the Deposit with the understanding of
the parties that Escrow Agent is not a party to this Agreement except to the
extent of its specific responsibilities hereunder, and does not assume or have
any liability for the performance or non-performance of Purchaser or Seller
hereunder to either of them.


 


(8)           The Escrow Agent shall be protected in relying upon the
accuracy, acting in reliance upon the contents, and assuming the genuineness of
any notice, demand, certificate, signature, instrument or other document which
is given to the Escrow Agent without verifying the truth or accuracy of any
such notice, demand, certificate, signature, instrument or other document.


 


(9)           The Escrow Agent shall not be bound in any way by any
other agreement or understanding between the parties hereto, whether or not the
Escrow Agent has knowledge thereof or consents thereto unless such consent is
given in writing.


 


(10)         The Escrow Agent’s sole duties and responsibilities shall be
to hold and disburse the Deposit and Interest accrued thereon in accordance
with this Agreement.


 


(11)         The Escrow Agent shall not be liable for any action taken or
omitted by the Escrow Agent in good faith and believed by the Escrow Agent to
be authorized or within its rights or powers conferred upon it by this
Agreement, except for damage caused by the gross negligence or wilful
misconduct of the Escrow Agent.


 


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(12)         Upon the disbursement of the Deposit and Interest accrued
thereon in accordance with this Agreement, the Escrow Agent shall be relieved
and released from any liability under this Agreement.


 


(13)         The Escrow Agent may resign at any time upon at least ten
(10) days prior written notice to the parties hereto.  If, prior to the effective date of such resignation, the parties
hereto shall all have approved, in writing, a successor escrow agent, then upon
the resignation of the Escrow Agent, the Escrow Agent shall deliver the Deposit
and Interest accrued thereon to such successor escrow agent.  From and after such resignation and the
delivery of the Deposit and Interest accrued thereon to such successor escrow
agent, the Escrow Agent shall be fully relieved of all of its duties,
responsibilities and obligations under this Agreement, all of which duties,
responsibilities and obligations shall be performed by the appointed successor
escrow agent.  If for any reason the
parties hereto shall not approve a successor escrow agent within such period,
the Escrow Agent may bring any appropriate action or proceeding for leave to
deposit the Deposit and Interest accrued thereon with a court of competent
jurisdiction, pending the approval of a successor escrow agent, and upon such
deposit the Escrow Agent shall be fully relieved of all of its duties,
responsibilities and obligations under this Agreement, provided, that the
Escrow Agent shall continue to act as escrow agent hereunder and hold the
Deposit and Interest in escrow in accordance with the terms and conditions contained
herein until the parties shall approve a successor escrow agent in writing or
the Deposit and Interest is deposited with a court of competent jurisdiction in
accordance with the terms hereof.


 


(14)         Seller and Purchaser hereby agree to, jointly and severally,
indemnify, defend and hold the Escrow Agent harmless from and against any
liabilities, damages, losses, costs or expenses incurred by, or claims or
charges made against, the Escrow Agent (including reasonable attorneys’ fees,
expenses and court costs) by reason of the Escrow Agent’s acting or failing to
act in connection with any of the matters contemplated by this Agreement or in
carrying out the terms of this Agreement, except as a result of the Escrow
Agent’s gross negligence or willful misconduct.


 


(15)         In the event that a dispute shall arise in connection with
this Agreement, or as to the rights of any of the parties in and to, or the
disposition of, the Deposit, the Escrow Agent shall have the right to (w) hold
and retain all or any part of the Deposit until such dispute is settled or
finally determined by litigation, arbitration or otherwise, or (x) deposit the
Deposit in an appropriate court of law, following which the Escrow Agent shall
thereby and thereafter be relieved and released from any liability or
obligation under this Agreement, or (y) institute an action in interpleader or
other 


 


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similar action permitted by stakeholders in the State of New York, or
(z) interplead any of the parties in any action or proceeding which may be
brought to determine the rights of the parties to all or any part of the
Deposit.


 


(16)         The Escrow Agent shall invest the Deposit in the investments
described in Schedule 3.3(j) attached hereto (“Permitted Investments”).  The Escrow Agent shall not have any
liability or obligation for loss of all or any portion of the Deposit by reason
of the insolvency or failure of the institution of depository with whom the
escrow account is maintained.


 


(17)         It is acknowledged by the parties hereto that Escrow Agent,
in its capacity as a law firm, has been representing Seller in connection with
this Agreement and the transaction referred to herein.  Purchaser agrees that, notwithstanding
Escrow Agent’s functions under this Agreement, Escrow Agent may, in its
capacity as a law firm, represent Seller in connection with any dispute between
Seller and Purchaser (and notwithstanding that Escrow Agent may be a party to
that dispute and may, in Escrow Agent’s capacity as a law firm, represent
itself) with respect to the Deposit, this Agreement and the transaction
contemplated hereby.


 


 


ARTICLE IV


 


TITLE; CLOSING


 


                                Section
IV.1           Title to Company
Interests and Property.


 


(18)         On the Closing Date, Seller shall transfer the Company
Interests to Purchaser free and clear of all Liens and encumbrances except for
those matters set forth on Schedule 4.1(a) attached hereto and made a
part hereof (the “Interest Permitted Encumbrances”).


 


(19)         Seller shall not, with respect to the Property, have any
obligation to, or cause the Company to, cure any violations of law or municipal
ordinances, orders or requirements, whether or not notices are now or hereafter
noted in or issued by the departments of buildings, fire, labor, health or
other federal, state, county, municipal or other departments and governmental
agencies having jurisdiction against or affecting the Property (collectively,
the “Violations”).  Subject to
Section 9.2 of this Agreement, Seller does not agree to undertake, and nothing
herein contained shall be construed to require Seller to undertake, any action
or proceeding or otherwise to 


 


-14-

















 


incur any expense whatsoever to render title to the Property either
acceptable to Purchaser or insurable.


 


                                Section
IV.2           Closing Date.  The consummation of the transactions contemplated hereby (the “Closing”)
shall take place at 10:00 A.M. on December 29, 2003 or such other date to which
counsel for Seller and Purchaser shall mutually agree (the “Closing Date”).  The closing shall be held at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, located at 4 Times Square, New
York, New York 10036.  Seller and
Purchaser agree to meet on December 28, 2003 at such offices for a pre-closing
of the transactions contemplated hereby. 
TIME SHALL BE OF THE ESSENCE AS OF DECEMBER 30, 2003.


 


                                Section
IV.3           Purchase Price Adjustments.


 


(20)         Seller and Purchaser hereby agree that the Interest Purchase
Price shall be (i) increased (or decreased if the amount in clause (a)(i)
hereof is a negative number) by an amount equal to the product of (a) the
excess of Working Capital stated in the Pre-Closing Balance Sheet (the “Pre-Closing
Working Capital”), which is attached hereto as Exhibit I, over the
Target Working Capital Amount, and (b) forty-five percent (45%), and (ii)
decreased by an amount equal to the product of (a) the Company Debt as of the
Closing Date, and (b) forty-five percent (45%).  To the extent within the possession of Seller, Purchaser shall be
provided with copies of, or access to, all books, records, employees and other
materials and matters of the Company and the Property as Purchaser determines
is reasonably necessary for its review of the Pre-Closing Balance Sheet.


 


(21)         As soon as reasonably practicable following the Closing
Date, but in no event later than September 30, 2004, (i) Purchaser shall use
reasonable efforts to cause the Company to prepare and deliver to Seller the
Closing Balance Sheet and (ii) Purchaser shall prepare and deliver to Seller a
calculation of Working Capital of the Company as of December 31, 2003 (“Closing
Date Working Capital”).  The Closing
Balance Sheet shall (i) be prepared on a basis consistent with the Reference
Balance Sheet, and (ii) reflect accounting entries determined in accordance
with GAAP.  Seller and Purchaser each
shall bear its own expenses in the review of the Closing Balance Sheet.  To the extent same is within the possession
of Purchaser, Purchaser shall provide Seller with such access to the books,
records, employees and other matters of the Company as Seller determines is
reasonably necessary for its review of the Closing Balance Sheet.


 


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(22)         Upon delivery of the Closing Balance Sheet, Purchaser will
provide Seller reasonable access to any of Purchaser’s records not otherwise
available to Seller as a result of the transactions contemplated by this
Agreement, to the extent reasonably related solely to Seller’s evaluation of
the Closing Balance Sheet and the calculation of Closing Date Working Capital.  If Seller shall disagree with the
calculation of Closing Date Working Capital or any element of the Closing
Balance Sheet relevant thereto, it shall, within thirty (30) Business Days
after its receipt of the Closing Balance Sheet, notify Purchaser of such
disagreement in writing, setting forth in detail the particulars of such
disagreement.  In the event that Seller
does not provide such notice of disagreement within such thirty (30) Business
Day period, Seller shall be deemed to have accepted the Closing Balance Sheet and
the calculation of the Closing Date Working Capital delivered by Purchaser,
which shall be final, binding and conclusive for purposes of this Agreement and
not subject to any further recourse by Seller .  In the event any such notice of disagreement is timely provided,
Purchaser and Seller, in conjunction with their respective independent
accounting firms, shall use reasonable best efforts for a period of ten (10)
Business Days (or such longer period as they may mutually agree) to resolve any
disagreements with respect to the calculation of Closing Date Working
Capital.  If, at the end of such period,
they are unable to resolve such disagreements, then Seller and Purchaser agree
that Ernst & Young LLP (the “Auditor”) shall be empowered to resolve
any remaining disagreements.  Purchaser
and Seller agree to use commercially reasonable efforts to cause the Auditor to
determine as promptly as practicable whether the Closing Balance Sheet was
prepared in accordance with the standards set forth in this Agreement and, only
with respect to the disagreements submitted to the Auditor, whether and to what
extent (if any) Closing Date Working Capital requires adjustment.  Purchaser and Seller agree to use
commercially reasonable efforts to cause the Auditor to promptly deliver to
Purchaser and Seller its determination in writing, which determination shall be
made subject to the definitions and principles set forth in this Agreement, and
shall be (i) consistent with either the position of Seller or Purchaser or (ii)
between the positions of Seller and Purchaser. 
The fees and expenses of the Auditor shall be paid one-half by Purchaser
and one-half by Seller.  The
determination of the Auditor shall be final, binding and conclusive for
purposes of this Agreement and not subject to any further recourse by Purchaser
or Seller under any provision hereof. 
The date on which Closing Date Working Capital is finally determined in
accordance with this Section 4.3(c) is hereinafter referred to as the “Determination
Date.”


 


(23)         Subject to subsections (e) and (f) below, in the event that
Closing Date Working Capital, as finally determined pursuant to Section 4.3(c)
above, exceeds the Pre-Closing Working Capital, then Purchaser shall pay to
Seller an amount 


 


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equal to 45% of the amount by which Closing Date Working Capital, as
finally determined, exceeds the Pre-Closing Working Capital.  Subject to subsections (e) and (f) below, in
the event that the Pre-Closing Working Capital exceeds the Closing Date Working
Capital, as finally determined pursuant to Section 4.3(c) above, then Seller
shall pay to Purchaser an amount equal to 45% of the amount by which the
Pre-Closing Working Capital exceeds the Closing Date Working Capital, as finally
determined.  All payments under this
subsection (d) shall be made within seven (7) Business Days of the
Determination Date and shall be paid in cash by wire transfer of immediately
available funds.


 


(24)         Legal fees incurred on or prior to the Closing Date, and
fees payable by the Company to Ernst & Young in connection with the E&P
Dividend and the examination of the REIT consequences of certain relationships
between the Company and RGI and certain parties related to RGI, that are
chargeable to the Company on account of the transactions contemplated by this
Agreement, whether billed to the Company or charged through to the Company by
RGI, and which fees are presently estimated to be $350,000, shall be: (i)
excluded from Current Liabilities for all purposes of Section 4.3 (except as
provided in subparagraph (ii) hereof) and (ii) shall be included in Current
Liabilities for purposes of Closing Date Working Capital under Section 4.3(d)
hereof.


 


(25)         Any increase required under GAAP in Income Taxes Payable (as
shown on the Reference Balance Sheet) by the Company at December 31, 2003 in
excess of $1,500,000, that is attributable to calendar year 2003 taxable income
and that is not offset by a debit to Deferred Income Taxes (as shown on the
Reference Balance Sheet), shall be considered a Current Liability for purposes
of Closing Date Working Capital under Section 4.3(d) hereof in the same manner
as the fees in subsection (e) above. 
Except as provided herein, Income Taxes Payable shall not be included in
the Working Capital adjustment provided for in Section 4.3 hereof.


 


(26)         All adjustments
pursuant to this Section 4.3 shall be made as if the Closing had occurred on
December 31, 2003 in accordance with the Balance Sheet of the Company as of
such date.  Any amounts payable under
this Section 4.3 shall accrue interest thereon at a rate equal to five percent
(5%) per annum from the date that is 30 days after same is payable until the
date such amounts are paid in full. 
Seller and Purchaser agree that the amounts payable under this Section
4.3 shall not be subject to the limitations set forth in Section 7.6 hereof.


 


                                Section
IV.4           Transfer Taxes.  Seller shall pay the real property transfer 


 


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tax, if any, imposed by Title 11 of Chapter 21 of the Administrative
Code of the City of New York and the real estate transfer tax, if any, imposed
by Article 31 of the New York State Tax Law on the sale of the Company
Interests as set forth on the tax returns required by said statutes and the
regulations issued pursuant to the authority thereof.  The provisions of this Section 4.4 shall survive the Closing.


 


 


ARTICLE
V


 


REPRESENTATIONS
AND WARRANTIES OF SELLER.


 


Seller
hereby represents and warrants to Purchaser, for the purpose of inducing
Purchaser to enter into this Agreement and to proceed to the Closing, that on
the date hereof and as of the Closing Date:


 


                                Section
V.1            Organization;
Authorization; Etc.  Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York
and every other jurisdiction in which it does business, is not a “foreign
person” under Section 1445 of the Code, and has been duly authorized by all
necessary and appropriate action to enter into this Agreement and the
transactions contemplated by this Agreement, to own, lease and operate its
properties, including the Shares, and conduct its business as it is currently
being conducted and to cause the consummation of the transactions contemplated
herein, and the individuals executing this Agreement on behalf of Seller have
been duly authorized by all necessary and appropriate action on behalf of
Seller.  When executed and delivered by
Seller, this Agreement will constitute valid and legally binding obligations of
Seller, enforceable against Seller in accordance with its terms.  Seller has provided Purchaser true and
complete copies of the organizational and similar governing documents, the
stock books, stock transfer records and minutes of meetings of the board of
directors and shareholders of the Company and each of the Subsidiaries, and all
written consents in lieu thereof, since October 1, 1997 to the extent in the
possession of Seller.


 


                                Section
V.2            No Conflict.  Neither the execution nor the delivery of this Agreement nor the
consummation of the transactions contemplated hereby nor fulfillment of or
compliance with the terms and conditions hereof (A) conflict with or will
result in a breach of any of the terms, conditions or provisions (or give rise
to any termination, cancellation, acceleration or modification) of (i) the
organizational and similar governing documents of the Seller or the Company or
(ii) any agreement, order, judgment, decree, arbitration award, statute,
regulation or instrument to which Seller or 


 


-18-

















 


the Company or either of the Subsidiaries is a party or by which it is
bound, or constitutes or will constitute a breach, violation or default under
any of the foregoing, (B) require any permit, authorization, consent of or
filing with or notification to any Governmental Authority by Seller or the
Company or either of the Subsidiaries or violate any Law of any Governmental
Authority applicable to Seller or the 
Company or either of the Subsidiaries or (C) to Seller’s knowledge,
violate, conflict with, result in the breach or termination of, constitute a
default under, accelerate the performance required by, or result in the
creation of any Lien, or other charge upon any of the assets or properties of
the Company or either of the Subsidiaries pursuant to any agreement, commitment
or instrument to which the Company or either of the Subsidiaries is a party or
by which the Company or either of the Subsidiaries or any of its assets or
properties, including, without limitation, the Property, is or are bound.


 


                                Section
V.3            Taxes.


 


(27)         No federal, state or
local taxing authority has asserted in writing any tax deficiency, Lien,
interest or penalty or other assessment against the Company Interests which has
not been paid which reasonably may be expected to result in a tax deficiency,
Lien, interest, penalty or other assessment against the Company Interests or,
to Seller’s knowledge, the Property or the Company or either of the
Subsidiaries and there is no pending audit or inquiry from any federal, state
or local tax authority relating to Seller which reasonably may be expected to
result in a tax deficiency, Lien, interest, penalty or other assessment against
the Company Interests or, to Seller’s knowledge, the Property or the Company or
either of the Subsidiaries.  To Seller’s
knowledge, the amounts accrued for taxes (other than deferred taxes) in the
Company’s and each of the Subsidiaries’ financial statements are sufficient for
the payment of all taxes of the Company and each of the Subsidiaries, whether
or not disputed, which are properly accruable on the results of operations
through the date of such statements.


 


(28)         To Seller’s
knowledge, the Company and each of the Subsidiaries has prepared and filed with
the appropriate taxing authorities all tax returns (including, without
limitation, all information returns) required to be filed on or prior to the
date hereof and all such tax returns are true, correct and complete in all
material respects; the Company and each of the Subsidiaries has paid all taxes,
if any, shown to be due on such returns; no waiver or extension is in effect
with respect to the filing of any tax return or the payment of any tax by the
Company or either of the Subsidiaries.


 


                                Section
V.4            Orders, Claims or
Judgements.  No action, suit, claim, 


 


-19-

















 


investigation or proceeding, whether legal or administrative or in
mediation or arbitration or otherwise, is pending or, to the  knowledge of Seller, threatened, at law or
in equity, by, against, or relating to Seller or the Company or either of the
Subsidiaries which, if determined adversely to Seller or the Company or either
of the Subsidiaries, could reasonably be expected to interfere in any material
respect with the ability of Seller to perform its obligations pursuant to this
Agreement or materially and adversely affect the value of the Company Interests
or the Property, and Seller has no knowledge of any facts that would give rise
to any action, suit, claim, investigation or proceeding.  There are no judgments, decrees or orders
entered or any suit or proceeding pending or, to Seller’s knowledge, threatened
in writing against Seller or the Company or either of the Subsidiaries which,
if determined adversely to Seller or the Company or either of the Subsidiaries,
could reasonably be expected to restrain, prohibit, invalidate, set aside,
rescind, prevent, make unlawful or otherwise interfere in any material respect
with the execution, delivery or consummation of the transactions contemplated
under this Agreement or materially and adversely affect the value of the
Company Interests or the Property and Seller is not aware of any facts that
would give rise to any such judgment, decree, order or suit.


 


                                Section
V.5            Insolvency.


 


(29)         Seller is not
presently insolvent, will not be rendered insolvent by the sale of the Shares
and has not made a general assignment for the benefit of creditors, filed any
voluntary petition in bankruptcy or suffered the filing of any involuntary
petition in bankruptcy or suffered the filing of any involuntary petition by
any of its creditors, suffered the appointment of a receiver to take possession
of all, or substantially all, of its assets, suffered the attachment or other
judicial seizure of all, or substantially all, of its assets, admitted in
writing its inability to pay its debts as they come due or made an offer of
settlement, extension or composition to its creditors generally.  Immediately after giving effect to the
consummation of the sale of the Shares: (i) Seller will be able to pay its
liabilities as they become due in the usual course of its business; (ii) Seller
will not have unreasonably small capital with which to conduct its present or
proposed business; (iii) Seller will have assets (calculated at fair market
value) that exceed its liabilities; and (iv) taking into account all pending
and threatened litigation, final judgments against Seller in actions for money
damages are not reasonably anticipated to be rendered at a time when, or in
amounts such that, Seller will be unable to satisfy any such judgements
promptly in accordance with their terms (taking into account the maximum
probable amount of such judgments in any such actions and the earliest
reasonable time at which such judgments might be rendered) as well as all other
obligations of Seller.


 


-20-

















 


(30)         The Company is not
presently insolvent and has not made a general assignment for the benefit of
creditors, filed any voluntary petition in bankruptcy or suffered the filing of
any involuntary petition in bankruptcy or suffered the filing of any
involuntary petition by any of its creditors, suffered the appointment of a
receiver to take possession of all, or substantially all, of its assets,
suffered the attachment or other judicial seizure of all, or substantially all,
of its assets, admitted in writing its inability to pay its debts as they come due
or made an offer of settlement, extension or composition to its creditors
generally.


 


                                Section
V.6            The Basic Company
Agreements.  Seller, and to Seller’s knowledge, the Company and each of the
Subsidiaries is not in violation of any of the provisions of any of the
agreements set forth in Schedule 5.6 attached hereto (the “Basic
Company Agreements”).  Seller has
not received any notice since October 1, 1997 alleging any violation by Seller
of any of the Basic Company Agreements, and Seller has not received any notice
alleging any violation by Seller of any of the Basic Agreements which has not
been withdrawn or cured.  Seller has not
delivered or caused to be delivered any notice since October 1, 1997 alleging
any violation by RGI of any of the Basic Company Agreements and Seller has not
delivered or caused to be delivered any notice alleging any violation by RGI of
any of the Basic Company Agreements which has not been withdrawn or cured.  To the best of Seller’s knowledge, there is
no event, which with the passage of time or giving of notice, would constitute
a violation by Seller of any material provisions of any of the Basic Company
Agreements.  To the best of Seller’s
knowledge, and except as set forth in Schedule 5.6 attached hereto, RGI
is not in violation of any of the provisions of the Basic Company Agreements,
and there is no event, which with the passage of time or giving of notice,
would constitute a violation by RGI of the material provisions of any of the
Basic Company Agreements.  The Basic
Company Agreements are in full force and effect and have not been modified,
amended or otherwise supplemented except as indicated on Schedule 5.6
hereof.  The Basic Company Agreements
represent the entire agreement between Seller, RGI and the Company.  All of Seller’s obligations under Section 5
of the Basic Agreement have been fully satisfied and there are no remaining
contingent liabilities or obligations of Seller thereunder.  Seller has delivered to Purchaser a true and
correct copy of each Basic Company Agreement.


 


                                Section
V.7            Intentionally Omitted.


 


                                Section
V.8            Company Organization.  The Company is a corporation duly organized, validly existing and
in good standing under all applicable laws of the 


 


-21-

















 


State of New York and such other states and jurisdictions where it does
business.  Each of the Subsidiaries is a
corporation duly organized, validly existing and in good standing under all
applicable laws of the State of New York and such other states and jurisdic­tions
where it does business.  Holdings is a
limited liability company organized, validly existing and in good standing
under all applicable laws of the State of Delaware and all such other states
and jurisdictions where it does business.


 


                                Section
V.9            Company Conduct of
Business.  To the best of Seller’s knowledge, the Company, Holdings and each
of the Subsidiaries has all permits necessary to conduct the business of the
Company, Holdings and each of the Subsidiar­ies and is not presently
conducting, and has not in the past conducted, any business other than
ownership of the Property and the Subsidiaries and activities related
thereto.  To the best of Seller’s
knowledge, none of  the Company,
Holdings or either of the Subsidiaries owns any assets or is a party to any
agreement for real property in a state other than New York other than states
where such party is qualified to do business by the Secretary of State of such
state.


 


                                Section
V.10          Ownership and Possession
of Shares.


 


(31)         Seller is the record
and beneficial owner of the Shares. The certificates representing the Shares
are now, since their issuance and at all times during the term hereof shall be
held by Seller or by a nominee or custodian for the sole and exclusive benefit
of Seller, free and clear of all Liens whatsoever, except for (i) any Liens
created by this Agreement, (ii) the Lien created by the Basic Company Agree­ments,
and (iii) Liens arising under the Securities Act or any applicable state
securities laws.  The Shares are not subject
to any proxy or any power of attorney except as described herein.  Seller does not directly or indirectly own
any other equity or debt securities of the Company or either of the
Subsidiaries.


 


(32)         The Company is the
sole member of Holdings and is the sole owner of all the capital stock of each
of the Subsidiaries and of the 1221 Avenue of the Americas Property, free and
clear of all Liens except for Permitted Encumbrances.  To Seller’s knowledge, BPI is the owner of the 166 West 48th
Street Property, free and clear of all Liens, except for Permitted
Encumbrances.  To Seller’s knowledge,
NWRC is the owner of the 151 West 48th Street Property, free and
clear of all Liens, except for Permitted Encumbrances.


 


(33)         Seller has no rights,
and no Affiliate of Seller has any rights, appurtenant to the Company,
Holdings, the Subsidiaries or the Property other 


 


-22-

















 


than
the Company Interests, the Basic Company Agreements and the McGraw-Hill Lease.


 


                                Section
V.11          Capitalization.  The authorized capital stock of the Company consists of 2,000
shares of common stock, par value $2.00 per share.  As of the date hereof, (a) 2,000 shares of common stock are
issued and outstanding and (b) to Seller’s knowledge, no shares of common stock
of the Company are owned by any Person other than Seller and RGI.  All the Shares are duly authorized, validly
issued, fully paid and non-assessable. 
Except as set forth in the Basic Company Agreements, as of the date
hereof, there are no existing options, warrants, calls, pre-emptive rights,
subscriptions or other rights, agreements, arrangements or commitments of any
character, relating to the Shares or, to Seller’s knowledge, any other shares
of capital stock of the Company or either of the Subsidiaries or securities
convertible into or exercisable or exchangeable for the Shares or, to Seller’s
knowledge, any other shares of capital stock of the Company or either of the
Subsidiaries.  The Company does not own
any capital stock or other equity interest in any entity other than the
Subsidiaries.


 


                                Section
V.12          Pending Litigation.  To Seller’s knowledge, there are no suits, actions, litigations,
arbitrations, governmental, administrative or other proceedings presently
pending or, to Seller’s knowledge, threatened in writing brought against the
Company or the Property and Seller has no knowledge of any facts that would
give rise to any of the above.


 


                                Section
V.13          Options to Purchase.  Except as set forth in the Basic Agreement, there are no recorded
or, to the best of Seller’s knowledge, unrecorded rights of first offer to
purchase, rights of first refusal to purchase, rights of negotiation, purchase
options or similar rights or contractually required rights or consents to
transfer pertaining to the Company Interests or the Property.


 


Section 1.3             Hazardous
Materials.  To Seller’s knowledge, and other than as disclosed to Purchaser
on Schedule 5.14 attached hereto and made a part hereof, (i) there are
not present in, on or under the Property any Hazardous Materials nor has the
Property been used for the generation, transportation, storage or discharge of
any Hazardous Materials except for the use and storage in the ordinary course
of business and in full compliance with all Environmental Laws; (ii) there are
no environmental easements on the Property as described in N.Y. Envir. Conserv.
§ 71-3601 or under any Environmental Law; (iii) there are no deed restrictions
relating to environmental conditions on the Property; (iv) there are no
environmental liens on the Property under any Environmental Law or cleanup
program; and (v) there is not any summons, citation, 


 


-23-

















 


directive,
notice of violation, letter, or other written communication, or cleanup
agreement, application, commitment or work plan requirement under a voluntary
or mandatory cleanup, brownfield or underground storage tank program from the
Federal Environmental Protection Agency, or any state, county or local
governmental authority, or any other agency or governmental board or entity
having jurisdiction over the Property that relate to  any environmental condition of the Property or a  violation of any Environmental Laws which
could reasonably be expected to materially and adversely affect the value of
the Company Interests.  To Seller’s
knowledge, there are no underground storage tanks under or affecting any
portion of the Property.


 


                                Section
V.14          Condemnation.  There is no pending or, to Seller’s knowledge, threatened
condemnation, eminent domain or similar proceeding affecting any portion of the
Property.


 


                                Section
V.15          McGraw-Hill Lease.  Seller is the tenant under the McGraw-Hill Lease.  The McGraw-Hill Lease is in full force and
effect.  The McGraw Hill Lease has not been
amended, modified or otherwise supplemented except as set forth in the MGH
Estoppel.  Except as set forth in the
MGH Estoppel, the McGraw-Hill Lease represents the entire agreement between
Seller and the Company with respect to the leasing and occupancy of the
McGraw-Hill Premises.  Seller has not
assigned its interest in the McGraw-Hill Lease nor has Seller entered into any
sublease or other agreement with regard to occupancy of any portion of the
premises demised under the McGraw-Hill Lease (other than the McGraw-Hill Lease
itself) except as set forth in the MGH Estoppel.  To Seller’s knowledge, there is no default by Seller or the
Company under the McGraw-Hill Lease, nor is there any event, which with the
passage of time or the giving of notice, would constitute a default by Seller
or the Company under the McGraw-Hill Lease. 
Seller has not given or received any written notices asserting that the
Company or Seller is in default under the McGraw-Hill Lease.  All of the obligations of the Company to be
performed prior to the date hereof under the McGraw-Hill Lease have been duly
performed and completed including, without limitation, any obligations of the
Company to make or to pay the Seller for any improvements, alterations or work
done on the McGraw-Hill Premises, and the improvements described in the
McGraw-Hill Lease have been constructed in accordance with the plans and
specifications therefor and have been accepted by Seller.


 


                                Section
V.16          Financial Statements.  With respect to the Company, true and complete copies of (A) the
audited balance sheet as of December 31, 2002, statement of income, and
retained earnings and statement of cash flows of the Company for the year ended
December 31, 2002, and the audited balance sheets, statements of 


 


-24-

















 


income and retained earnings and statements of cash flows of the
Company for the years ended December 31, 1997, December 31, 1998, December 31,
1999, December 31, 2000, December 31, 2001 and December 31, 2002, including in
each case the notes thereto and (B) the Reference Balance Sheet, have been made
available to Purchaser.  No financial
statements of any other Person other than the Company and the Subsidiar­ies are
required by GAAP to be included in the consolidated financial statements of the
Company.


 


Section 1.4             Capital
Contributions.  Seller has no obligations to contribute
additional capital to the Company at this or at any time and no such
obligations are attached to the Shares.


 


                                Section
V.17          Disclaimer as to
Subsidiaries. Purchaser acknowledges
that except as expressly set forth herein, Seller has not made any
representations or warranties herein or otherwise with respect to the existence
of or business conducted by the Subsidiaries or any property (real or personal)
owned by them or any business activities engaged in by any of such
Subsidiaries.


 


                                Section
V.18          Disclaimer as to
Representations. Purchaser acknowledges
that except as expressly set forth herein, Seller has not made any
representations or warranties with respect to the Shares, the Company, the
existence of or business conducted by the Company or any property (real or
personal) owned by the Company or any business activities engaged in by the
Company.


 


                                Section
V.19          Knowledge of Seller.  For purposes of this Agreement and any document delivered at
Closing, whenever the phrases “to Seller’s knowledge”, “to the current, actual
knowledge of Seller” or the “knowledge” of Seller or words of similar import
are used, they shall be deemed to refer to the actual knowledge of Robert J.
Bahash, Executive Vice President and Chief Financial Officer and Michelle R.
Ferguson, Senior Vice President — Real Estate and Human Resources Services
only, which such individuals Seller represents are the individuals that have
actual knowledge of matters concerning the Company and the Property, and not
any implied, imputed or constructive knowledge of Robert J. Bahash and Michelle
R. Ferguson or any other party, without any independent investigation having
been made or any implied duty to investigate.


 


Section 1.5             Insurance. To Seller’s knowledge, (i)
the Company maintains insurance coverages that are customary for companies
owning assets similar to the assets of the Company, Holdings and each of the
Subsidiaries covering the 


 


-25-

















 


Company,
its officers and directors and the Property in all respects, (ii) the insurance
maintained by the Company and each of the Subsidiaries is adequate in
accordance with all applicable leases for portions of the Property, (iii) such
policies are in full force and effect, (iv) the Company, Holdings and each of
the Subsidiaries has not received any written notice of cancellation or
nonrenewal of any such insurance policy, and (v) there are no claims relating
to the Property or other assets of the Company, Holdings and each of the
Subsidiaries which are not covered by insurance or with respect to which any of
the Company’s and each of the Subsidiaries insurance providers has declined to
provide coverage.


 


                                Section
V.20          No Undisclosed Liabilities. To Seller’s knowledge, the
Company and each of the Subsidiaries has no liabilities, whether known or
unknown, absolute, accrued, contingent or otherwise, and no condition exists at
the Property which could result in a Violation, except as and to the extent set
forth in the Balance Sheets included in the Financial Statements or in the
notes thereto.


 


                                Section
V.21          Manager’s Certificate. To Seller’s knowledge, the
state of facts set forth in the Manager’s Certificate (as hereinafter defined)
are true, correct and complete in all material respects.


 


 


ARTICLE
VI


 


REPRESENTATIONS
AND WARRANTIES OF PURCHASER


 


Purchaser
hereby represents and warrants to Seller, for the purpose of inducing Seller to
enter into this Agreement and proceed to the Closing, that:


 


                                Section
VI.1           Organization;
Authorization; Etc.  Purchaser is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has been (or by Closing shall be) duly authorized by all
necessary and appropriate action to enter into this Agreement and to cause the
consummation of the transactions contemplated herein, and the individuals
executing this Agreement on behalf of Purchaser have been duly authorized by
all necessary and appropriate action on behalf of Purchaser.  When executed and delivered by Purchaser,
this Agreement will constitute valid and legally binding obligations of
Purchaser, enforceable against Purchaser in accordance with its terms except
(a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws of general application
affecting enforcement of creditors’ rights 


 


-26-

















 


generally and (b) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.


 


                                Section
VI.2           No Conflict.  Neither the execution nor the delivery of this Agreement nor the
consummation of the transactions contemplated hereby nor fulfillment of or
compliance with the terms and conditions hereof (A) conflict with or will result
in a breach of any of the terms, conditions or provisions of (i) 
Purchaser’s organizational documents or (ii) any agreement, order,
judgment, decree, arbitration award, statute, regulation or instrument to which
Purchaser is a party or by which it is bound, or constitutes or will constitute
a breach, violation or default under any of the foregoing, or (B) require any
consent of or filing with or notification to any Governmen­tal Authority by
Purchaser or violate any Law of any Governmental Authority applicable to
Purchaser.


 


                                Section
VI.3           No Orders, Etc.  No action, suit, claim, investigation or proceeding, whether
legal or administrative or in mediation or arbitration or otherwise, is pending
or, to the knowledge of Purchaser, threatened, at law or in equity, by or
against Purchaser which, if determined adversely to Purchaser, could reasonably
be expected to interfere in any material respect with the ability of Purchaser
to perform its obligations pursuant to this Agreement.  There are no judgments, decrees or orders
entered or any suit or proceeding pending or threatened against Purchaser
which, if determined adversely to Purchaser, could reasonably be expected to
restrain, prohibit, invalidate, set aside, rescind, prevent, make unlawful or
otherwise interfere in any material respect with the execution, delivery or
consummation of the transactions contemplated under this Agreement.


 


                                Section
VI.4           Insolvency.  Purchaser is not presently insolvent, will not be rendered
insolvent by the purchase of the Shares and has not made a general assignment
for the benefit of creditors, filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition in bankruptcy or suffered the
filing of any involuntary petition by any of its creditors, suffered the
appointment of a receiver to take possession of all, or substantially all, of
its assets, suffered the attachment or other judicial seizure of all, or
substantially all, of its assets, admitted in writing its inability to pay its
debts as they come due or made an offer of settlement, extension or composition
to its creditors generally.


 


 


ARTICLE
VII


 


-27-

















 


                                                                SURVIVAL
OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; EXCLUSIVE REMEDIES


 


                                Section
VII.1         Indemnification.


 


(1)           From and after the
Closing Date, and subject to Sections 7.1(c) and 7.6 hereof, Seller agrees to
indemnify, protect, defend and hold harmless the Purchaser and each principal,
partner, member, director, officer, employee, stockholder, agent and other
representative of any of them (a “Purchaser Indemnified Party”), from
and against any and all losses, liabilities, suits, damages, expense and claims
(whether direct or indirect) asserted against, imposed upon or incurred by any
such Purchaser Indemnified Party by reason of or resulting from (a) any
representation or warranty by the Seller or fact set forth in any
representation of Seller, any of the Schedules relating to this Agreement or
any other Closing certificate or Closing document delivered by Seller pursuant
to this Agreement (including the Manager’s Certificate) not having been true
and correct on the date hereof and as of the Closing (without giving effect to
any qualifications or exceptions relating to the knowledge of the Seller
contained in clause (C) of Section 5.2, Section 5.3(a) or (b), Section 5.6,
Section 5.10, Section 5.11, Section 5.21, Section 5.23, and Section 5.24) or
(b) the breach by Seller of any covenant or obligation of Seller in this
Agreement, including, without limitation, Seller’s obligation to pay any taxes
required to be paid by Seller under Section 4.4 hereof.


 


(2)           From and after the
Closing Date, and subject to Section 7.1(c) hereof, Purchaser shall indemnify
and hold harmless the Seller, any Affiliate of the Seller and any principal,
partner, member, director, officer, employee, agent or other representative of
any of them (a “Seller Indemnified Party”), from and against any and all
losses actually incurred by any such Seller Indemnified Party by reason of or
resulting from (a) the breach of any representation or warranty by the
Purchaser or any Closing certificate or Closing document delivered by Purchaser
pursuant to this Agreement or (b) the breach by Purchaser of any covenant or
obligation of Purchaser in this Agreement.


 


(3)           All representations
and warranties of the Seller contained herein or made pursuant hereto are given
and shall survive until the date that is twelve (12) calendar months after the
Closing Date except as set forth below; provided, however, that all representations
and warranties of the Seller set forth in Sections 5.10, 5.11 and/or 5.13 and
all of Article XIV shall survive the Closing until the expiration of the
applicable statute of limitations.  The
date on which a given representation or 


 


-28-

















 


warranty
expires is referred to as the “Purchaser Warranty Claim Termination Date”
with respect to such representation or warranty.  The representations and warranties of the Purchaser contained
herein or made pursuant hereto shall survive until the date that is twelve (12)
calendar months after the Closing Date (such relevant date being hereinafter
referred to as the “Seller Warranty Claim Termination Date”).


 


                                Section
VII.2         Warranty Claims.  Subject to Section 7.1(c), any claim by either the Seller or the
Purchaser pursuant to Section 7.1 with respect to a claimed breach by the other
party of a representation or warranty (a “Warranty Claim”) shall expire,
if applicable, at the relevant Purchaser Warranty Claim Termination Date or the
Seller Warranty Claim Termination Date, as applicable,  except with respect to Warranty Claims with
respect to which the party making any such claim hereunder has delivered
written notice of such claim to the other party.  If any written notice of claim has been given by the Purchaser to
the Seller prior to the relevant Warranty Claim Termination Date or by the
Seller prior to the relevant Warranty Claim Termination Date, then the relevant
representations, warranties and indemnities shall survive the relevant
Purchaser Warranty Claim Termination Date or the Seller Warranty Claim
Termination Date, as applicable, as to (but only as to) such Warranty Claim,
until such Warranty Claim has been finally resolved, it being understood that
the Purchaser or the Seller, as applicable, may update or amend the Warranty
Claim to include facts and circumstances that relate to such claim but are only
later discovered or quantified, but may not assert any new or additional
claims.  No Warranty Claim may be
brought by the Purchaser or the Seller if and to the extent that the matters
giving rise to the Warranty Claim were expressly disclosed in this Agreement.


 


                                Section
VII.3         Indemnification Procedure.


 


(4)           As a condition to
the indemnity obligations hereunder, the party seeking indemnification shall
notify the other party obligated to provide indemnification (the “Indemnifying
Party”) promptly after it obtains actual knowledge of the claims, events or
circumstances giving rise to its seeking indemnification.  If such event involves any claim or the
commencement of any action or proceeding by a third person, the party seeking
indemnification will give such Indemnifying Party written notice of such claim
or the commencement of such action or proceeding.  Such notice shall be a condition precedent to any liability of
the Indemnifying Party hereunder.  Such
Indemnifying Party shall have a period of thirty (30) days within which to
respond thereto.  If such Indemnifying
Party accepts responsibility or does not respond within such thirty (30) day
period, such Indemnifying Party shall be obligated to defend such claim, action
or proceeding, at its own expense and by counsel chosen by the 


 


-29-

















 


Indemnifying
Party and reasonably satisfactory to the party seeking indemnification.  If such Indemnifying Party does respond
within such thirty (30) day period and rejects its indemnification obligation
for such matter, in whole or in part, or does not respond and does not comply
with its obligations under the preceding sentence, the party seeking
indemnification shall be free to pursue, without prejudice to any of its rights
hereunder, such claims, rights, defenses and remedies as may be available to
such party under applicable law.  If the
Indemnifying Party has assumed its indemnification obligation, (i) the party
seeking indemnification agrees to cooperate fully with the Indemnifying Party
and its counsel in the defense against any such asserted liability and shall
have the right to participate at its own expense in the defense of such
asserted liability and (ii) any compromise of such asserted liability by the
Indemnifying Party shall require the prior written consent of the party seeking
indemnification unless such compromise includes a general release from
liability in favor of the party seeking indemnification with respect to the
matters which are the subject of such compromise; provided, however,
that if the party seeking indemnification unreasonably refuses its consent to a
bona fide offer of settlement which the Indemnifying Party wishes to accept,
the party seeking indemnification may continue to pursue such matter, free of
any participation by the Indemnifying Party, at the sole expense of the party
seeking indemnification.  In such event,
the obligation of the Indemnifying Party to the party seeking indemnification
shall be equal to the lesser of (i) the amount of the offer of settlement which
the party seeking indemnification refused to accept plus the costs and expenses
of such party prior to and including the date the Indemnifying Party notifies
the party seeking indemnifica­tion of the offer of settlement and (ii) the
actual out-of-pocket amount the party seeking indemnification is obligated to
pay as a result of such party’s continuing to pursue such matter.  An Indemnifying Party shall be entitled to
recover from the party seeking indemnification any additional expenses incurred
by such Indemnifying Party as a result of the decision of the party seeking
indemnification to pursue such matter.


 


(5)           In the event of a
claim, action or proceeding against the Company which gives rise to any claim
hereunder, if the Indemnifying Party has no right to defend the Company against
such claim, action or proceeding, then the Indemnifying Party and Indemnified
Party shall cooperate in good faith to mitigate any damages resulting from such
claim, action or proceeding against the Company.


 


                                Section
VII.4         Sole Remedy.  The rights provided in this Agreement shall be the sole and
exclusive remedy for any breach of or any inaccuracy in any of the
representations and warranties of the Seller or the Purchaser contained in this
Agreement, the Schedules or any other certificate or document delivered
pursuant to this Agree­ment or otherwise relating hereto or in respect hereof,
and the Purchaser shall not 


 


-30-

















 


assert any claim relating hereto or based hereon except by exercising
its rights under this Agreement other than claims for fraud or willful
misconduct and for the right to seek specific performance, injunctive relief or
other equitable remedies.


 


                                Section
VII.5         Indemnification as
Adjustment to Interest Purchase Price.  Any indemnification payment made pursuant to this Agreement shall
be treated as an adjustment to the Interest Purchase Price.


 


                                Section
VII.6         Limitation of Liability.  Notwithstanding anything to the contrary or inconsistent in this
Agreement or in any of the agreements, certificates or affidavits delivered by
Seller pursuant to this Agreement, (i) Seller shall have no liability for any
losses, claims, costs or expenses suffered or incurred by Purchaser as a result
of the inaccuracy of any of the representations or warranties of Seller set
forth in Article V hereof and/or under any of the schedules to this
Agreement or any agreements, certificates or affidavits delivered by Seller
pursuant to this Agreement (including the Manager’s Certificate) or for the
breach of any covenant contained herein or in any such agreements, certificates
or affidavits whether delivered on or prior to Closing, if (x) the same in the
aggregate, shall have a monetary value (or be in a monetary amount claimed) of
less than Twenty Five Thousand Dollars ($25,000) (the “Liability Floor”)
or (y) Purchaser or any Affiliate shall have had actual knowledge (it being
agreed that the actual knowledge of Purchaser for purposes of this clause (y)
shall be limited to the actual knowledge of Marc Holliday and Andrew Levine
(and not any implied, imputed or constructive knowledge of such individuals),
without any independent investigation having been made or any implied duty to
investigate) of the matter constituting or giving rise to such inaccuracy of
any such representation or warranty by Seller, and (ii) the aggregate liability
of Seller arising pursuant to or in connection with the inaccuracy of any of
the representations or warranties of Seller set forth in Article V hereof
and/or under any of the schedules to this Agreement or any agreements,
certificates or affidavits delivered by Seller pursuant to this Agreement
(including the Manager’s Certificate) or for the breach of any covenant
contained herein or in any such agreements, certificates or affidavits whether
delivered on or prior to Closing, shall not exceed Ten Million Dollars
($10,000,000) (the “Liability Cap”), in addition to any reasonable
attorneys’ fees and expenses payable by Seller to Purchaser in connection with
any legal action to recover on any such damage claim, provided that Purchaser
is the prevailing party in any such action; provided, however,
that if any claim for indemnification is based upon, attributable to or results
from a breach of the  representations
and warranties set forth in Section 5.10(a), Section 5.10(c), Section 5.11
(with respect to the Shares only) or Section 5.13, or any covenant of Seller
contained in Section 4.4, Section 14.17, Section 14.18, Section 14.19 or
Article XI of this Agreement, neither the Liability Cap nor the 


 


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Liability Floor shall be applicable. 
It is expressly understood by the parties hereto that, except as
otherwise set forth in this Agreement, Seller makes no representations,
pursuant to this Agreement or otherwise, and the Seller shall not have any liability
with respect to (i) the valuation of the Company Interests, or (ii) any and all
projections or estimates in connection with the income or expenses of such
Company Interests or Property.


 


                                Section
VII.7         Survival.  The provisions of this Article VII shall survive the
Closing.


 


 


ARTICLE
VIII


 


INTERIM
COVENANTS


 


                                Section
VIII.1        Seller’s Covenants.  Except as expressly provided in this Agreement and except as may
be consented to in writing by Purchaser (such consent not to be unreasonably
withheld or delayed), Seller shall, and shall cause its representatives on the
Com­pany’s board of directors (including voting accordingly at meetings of the
board of directors) to, after the date hereof and prior to the Closing Date:


 


(6)           Use its reasonable
efforts to cause the business of the Company to be conducted substantially in
the same manner as heretofore conducted and only in the ordinary course.


 


(7)           Not approve of,
consent to, join in or otherwise act to permit the Company, Holdings or any of
the Subsidiaries, other than as contemplated herein to (i) amend its
certificate of incorporation or by-laws or similar organizational documents,
(ii) issue, sell, transfer, pledge, dispose of or encumber any shares of any
class or series of its capital stock, or securities convertible into or
exchangeable or exercisable for, or options, warrants, calls, commitments or
rights of any kind to acquire, any shares of any class or series of its capital
stock, (iii) split, combine or reclassify any shares of any class or series of
its stock, or (iv) declare, make or pay any dividend or other distribution,
whether in cash, securities or other property, (v) redeem, purchase or
otherwise acquire directly or indirectly any shares of any class or series of
its capital stock, or any instrument or security which consists of or includes
a right to acquire such shares, (vi) sell, ground lease, assign, transfer,
convey or otherwise dispose of all or any portion of the Property, (vii) fail
to use its commercially reasonable efforts to renew any agreement or contract,
or default in any respect under any contract or agreement that is 


 


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material
to the Company or any of the Subsidiaries, (viii) engage in any transactions
with any of its affiliates, (ix) make any changes in its or their accounting
methods which would be required to be disclosed under GAAP, or (x) 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.


 


(8)           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 not  (i) incur or assume any debt, (ii) modify
the terms of any indebtedness or other liability, and (iii) assume or guarantee
the obligations of any other Person.


 


(9)           Not approve of or
consent to any matter over which Seller or its representatives on the Com­pany’s
board of directors shall have the right of approval or consent pursuant to the
terms of the Basic Agreement.


 


(10)         Not approve of,
consent to, join in or otherwise act to permit the Company to adopt a plan of
complete or partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other reorganization of the Company.


 


(11)         Confer with Purchaser
concerning operational matters of a material nature and otherwise periodically
report to Purchaser concerning the status of the business, operations, and
finances of the Com­pany and each of the Subsidiaries.


 


(12)         Not approve of,
consent to, join in or otherwise act to permit the Company to enter into any
agreement, contract, commitment or arrangement to do any of the foregoing.


 


(13)         Not to pursue,
market, solicit or negotiate for the sale, assignment, pledge, hypothecation or
other encumbrance of the Com­pany Interests to any Person other than Purchaser.


 


(14)         Use its diligent
efforts to take such action as may be required under the Com­pany’s
organizational and other governing documents and the Law to cause the board of
directors of the Com­pany to call a special meeting after the Closing for the
purpose of electing nominees of the Purchaser to be elected to the board of
directors at Closing.


 


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(15)         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 terminate or replace
any employees or consultants of the Company.


 


(16)         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 file any litigation,
arbitration demand or initiate any other formal legal proceeding.


 


(17)         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.


 


(18)         Not approve of,
consent to, join in or otherwise act to permit the Company, Holdings or any of
the Subsidiaries to, merge or consolidate with any other entity.


 


(19)         Not file and
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.


 


(20)         Remove, or cause to
be removed, any Lien other than Interest Permitted Encumbrances which affect
the Shares.


 


                                Section
VIII.2        Access and Investigation.  Seller shall, and shall use diligent efforts
to cause the Company to (i) provide access to Purchaser and its representatives
and prospective lenders and their representatives (collectively, “Purchaser’s
Advisors”) full and free access to the Com­pany’s and the Subsidiaries’
properties, contracts, books and records, and other documents and data, and
(ii) furnish Purchaser and Purchaser’s Advisors with copies of all such
contracts, books and records, financial reports, rent rolls and other existing
financing, operating and other documents and data regarding the Com­pany and
the Subsidiaries as Purchaser may reasonably request (in each case, to the
extent in Seller’s possession or can reasonably be obtained by Seller).


 


 


ARTICLE
IX


 


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CLOSING
CONDITIONS


 


                                Section
IX.1          Conditions to Obligations
of Seller.  The obligations of Seller under this Agreement to sell the
Company Interests and consummate the other transactions contemplated hereby
shall be subject to the satisfaction of the following conditions on or before
the Closing Date, except to the extent that any of such conditions may be
waived by Seller in writing at Closing in the Seller’s sole and absolute
discretion.


 


(21)         Representations,
Warranties and Covenants of Purchaser. 
All representations and warranties of Purchaser contained in Article VI
of this Agreement shall be true and correct in all material respects as of the
Closing Date, with the same force and effect as if such representations and
warranties were made and all of such facts were true as of the Closing Date,
and Purchaser shall have performed and complied in all material respects with
all material covenants and agreements required by this Agreement to be
performed or complied with by Purchaser on or prior to the Closing Date.


 


(22)         No Orders.  No order, writ, injunction or decree
(collectively, “Order”) shall have been entered and be in effect by any
court of competent jurisdiction or any authority, and no requirement shall have
been promulgated or enacted and be in effect, that restrains, enjoins or
invalidates the transactions contemplated hereby; provided that if any of the
foregoing shall be in effect as a direct or indirect result of Seller’s acts or
omissions taken or omitted by Seller with the intention of preventing or
delaying the Closing, the failure of Seller to close by reason of any of the
foregoing shall constitute a default by Seller hereunder, entitling Purchaser
to all rights and remedies of Purchaser provided under Section 12.2 hereof.


 


(23)         Waiver of Right of
First Refusal. RGI shall have waived in writing its right of first refusal
pursuant to the Basic Agreement.


 


(24)         Closing Deliveries.  Purchaser shall have delivered the documents
and instruments required to be delivered by Purchaser pursuant to Section 10.2
of this Agreement.


 


                                Section
IX.2          Conditions to Obligations
of Purchaser.  The obligations of Purchaser under this Agreement to purchase the
Company Interests and consummate the other transactions contemplated hereby
shall be subject to the satisfaction of the following conditions on or before
the Closing Date, except to the extent that any of such 


 


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conditions may be waived by Purchaser in writing at Closing in the
Purchaser’s sole and absolute discretion.


 


(25)         Representations,
Warranties and Covenants of Seller. 
All representations and warranties of Seller contained in Article V of
this Agreement and all of the facts set forth therein shall be true and correct
in all material respects as of the Closing Date, with the same force and effect
as if such representations and warranties were made and all of such facts were
true as of the Closing Date, and Seller shall have performed and complied in
all material respects with all material covenants and agreements required by
this Agreement to be performed or complied with by Seller and Seller shall not
have breached any covenant or agreement set forth herein and the Company shall
have taken no action that is the subject of any negative covenant of Seller
under this Agreement on or prior to the Closing Date.


 


(26)         Ownership of
Property.  On the Closing Date,
Holdings and each of the Subsidiaries shall own the Property free and clear of
all Liens except for Permitted Encumbrances and the Company shall own Holdings
free and clear of all Liens.


 


(27)         Closing Deliveries.  Seller shall have delivered the documents
and instruments required to be delivered by Seller pursuant to Section 10.1 of
this Agreement.


 


(28)         REIT Condition.  The REIT Condition shall have been satisfied
or waived by Purchaser.


 


(29)         No Orders.  No Order shall have been entered and be in
effect by any court of competent jurisdiction or any authority, and no
requirement shall have been promulgated or enacted and be in effect, that
restrains, enjoins or invalidates the transactions contemplated hereby;
provided that if any of the foregoing shall be in effect as a direct or
indirect result of Purchaser’s acts or omissions taken or omitted by Purchaser
with the intention of preventing the Closing, the failure of Purchaser to close
by reason any of the foregoing shall constitute a default by Purchaser
hereunder, entitling Seller to all rights and remedies of Seller provided under
Section 12.1 hereof.


 


(30)         Consents.  The Seller shall have obtained the authoriza­tions,
consents and approvals of all Government Authorities and all third parties
identified in Schedule 9.2(f) hereto in connection with the consummation
of the sale of the Property by Seller.


 


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(31)         No Liens.  There shall be no Liens encumbering the
Property other than Permitted Encumbrances.


 


(32)         Title Insurance.  A title insurance company licensed in New
York and reasonably acceptable to Purchaser shall be prepared to insure
Purchaser, at regular rates, that the Company is vested with fee simple title
to the Property, subject only to the Permitted Encumbrances.


 


(33)         Leases in Effect.  The McGraw-Hill Lease and leases representing
at least 80% of the remaining occupied square footage of the Property shall be
in full force and effect.


 


(34)         Waiver of Right of
First Refusal. RGI shall have waived in writing its right of first refusal
pursuant to the Basic Agreement.


 


(35)         Transactions with
RGI.  RGI shall have executed and
delivered to Purchaser (i) a Shareholder’s Consent adopting the restated and
amended certificate of incorporation of the Company in the form attached hereto
as Exhibit J and the amended bylaws of the Company in the form attached
hereto as Exhibit K, (ii) a Shareholders’ Agreement in the form attached
hereto as Exhibit L,


 


(36)         Transactions with
RGI and the Company.  RGI (or its
affiliate) and the Company shall have executed (i) a First Amendment to
Management Agreement in the form attached hereto as Exhibit M and (ii) a
Third Amendment to Lease in the form attached hereto as Exhibit N.


 


(37)         Other.  Purchaser shall have received (i) a REIT
qualification  opinion from Pillsbury
Winthrop in the form attached hereto as Exhibit O, (ii) resolutions from
RGI authorizing the transactions contemplated by the documents described in
subsections (k) and (l) hereof, and (iii) confirmation by Pillsbury Winthrop
that it has destroyed those documents held by it in escrow pursuant to that
certain Escrow Agreement dated as of December 23, 2003 between Seller, RGI and
Pillsbury Winthrop.


 


Section 1.6             Termination.


 


(1)           In the event Seller
shall elect not to close due to the failure 


 


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of
any one or more of the conditions precedent to Seller’s obligation to sell set
forth in Section 9.1 (other than the conditions set forth in subsection (a),
(b) or (c) of Section 9.1 which shall constitute a default hereunder by
Purchaser as described in Section 12.1 hereof) which has not been waived by
Seller in writing in Seller’s sole and absolute discretion, Seller shall so
notify Purchaser in writing specifying the unfulfilled conditions, Seller shall
promptly direct the Escrow Agent to return the Deposit and the Interest to
Purchaser and this Agreement shall terminate, and neither party shall have any
further obligation under this Agreement except for those obligations which are
expressly stated to survive.


 


(2)           In the event
Purchaser shall elect not to close due to the failure of any one or more of the
conditions precedent to Purchaser’s obligation to consummate this transaction
set forth in Section 9.2 which has not been waived by Purchaser in writing in
Purchaser’s sole and absolute discretion, Purchaser shall so notify Seller in
writing specifying the unfulfilled conditions, Seller shall promptly direct the
Escrow Agent to return the Deposit and the Interest to Purchaser and this
Agreement shall terminate, and neither party shall have any further obligation
under this Agreement except for those obligations which are expressly stated to
survive, provided, however, if the failure of any of the conditions precedent
to Purchaser’s obligation to consummate this transaction set forth in Section 9.2
is caused by or is a result of a breach by Seller of any representation,
warranty, covenant, term, provision, agreement or obligation of Seller
hereunder, Purchaser shall have the right to seek the remedies referred to in
Section 12.2 hereof.


 


 


ARTICLE
X


 


CLOSING
DELIVERIES


 


                                Section
X.1            Seller’s Deliveries.  At the Closing, Seller shall execute and deliver, or cause to be
executed and delivered, the following documents and instruments (“Seller’s
Closing Documents”) to Purchaser:


 


 (3)          one or more certificates representing the Shares, each such
certificate to be duly and validly endorsed in favor of Purchaser or
accompanied by a separate stock power duly and validly executed by Seller for
transfer  to Purchaser;


 


(4)           resignations of each
director and officer, if any, of the Company appointed by Seller;


 


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(5)           a certificate of
non-foreign status of Seller which complies with the requirements of Section
1445 of the Code;


 


(6)           an estoppel
certificate from the tenant under the McGraw-Hill Lease in the form attached
hereto as Exhibit E-1 (the “MGH Estoppel”) and the other Tenant
Estoppels (as hereinafter defined) required pursuant to Section 10.3 hereof
and, if applicable, the Seller Estoppel (as hereinafter defined) pursuant to
Section 10.3 hereof;


 


(7)           opinion from the
General Counsel’s office of Seller, dated the Closing Date, in a form
reasonably satisfactory to Purchaser;


 


(8)           the certificate of
incorporation of the Com­pany and each of the Subsidiaries and all amendments
thereto, certified by the Secretary of State of the State of New York;


 


(9)           certificates
evidencing the good standing of each of Seller,  the Company and each of the Subsidiaries under the laws of the
State of New York or the state of its organization;


 


(10)         copies of the
resolutions and consents adopted by the Seller authorizing the execution and
delivery of this Agreement and the other Closing documents to which Seller is a
party, and the performance by Seller of its obligations hereunder and
thereunder;


 


(11)         a certificate (the “Closing
Certificate”) from Seller (i) indicating that the representations and
warranties of the Seller set forth herein are true and correct in all material
respects on and repeated as of the Closing Date, or, if there have been changes
after the date hereof which are permitted hereunder, describing such changes;
(ii) Seller has performed and complied in all material respects with all
covenants and agreements required by this Agree­ment to be performed or
complied with by Seller on or prior to the Closing Date; and (iii) the
conditions set forth in Section 9.2(b) have been satisfied.


 


(12)         evidence reasonably
satisfactory to Purchaser of the payment of any taxes required to be paid by
Seller pursuant to Section 4.4 and the delivery of all real property transfer
tax forms required to be filed in connection therewith;


 


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(13)         to the extent not
previously delivered to Purchaser, copies of all files of Seller with respect
to the Com­pany, Holdings and the Property, including but not limited to, any
leasing and tenant files, financial statements, operating or management
reports, rent rolls, financing documents, books and records and tax returns;


 


(14)         Subject to the
provisions of Section 10.3 hereof, all executed tenant estoppels and, if
required, the Seller Estoppel;


 


(15)         a non-imputation
endorsement affidavit in the form attached hereto as Exhibit H; and


 


(16)         all other documents
reasonably necessary or appropriate to be executed and delivered by the Seller
to consummate the transaction contemplated hereby.


 


                                Section
X.2            Purchaser’s Deliveries.  At the Closing, Purchaser shall execute and deliver, or cause to
be executed and delivered, the following documents and instruments (“Purchaser’s
Closing Documents”) to Seller:


 


(17)         payment of the
Balance of the Purchase Price in accordance with the terms of this Agreement;


 


(18)         copies of the
resolutions and consents adopted by the Purchaser authorizing the execution and
delivery of this Agreement and the other Closing documents to which Purchaser
is a party, and the performance by Purchaser of its obligations hereunder and
thereunder;


 


(19)         a Closing Certificate
from Purchaser (i) indicating that the representations and warranties of the
Purchaser set forth herein are true and correct in all material respects on and
repeated as of the Closing Date, or, if there have been changes after the date
hereof which are permitted hereunder, describing such changes; (ii) Purchaser
has performed and complied in all material respects with all covenants and
agreements required by this Agree­ment to be performed or complied with by
Purchaser on or prior to the Closing Date; and (iii) the conditions set forth
in Section 9.2(a) have been satisfied; and


 


(20)         all other documents
reasonably necessary or appropriate to be executed and delivered by the
Purchaser to consummate the transaction contemplated 


 


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hereby.


 


                                Section
X.3            Estoppel Certificates.  Seller shall request (or cause the Company to request) and use
reasonable efforts to obtain and deliver to Purchaser, when received by Seller,
an estoppel certificate from all tenants at the 1221 Avenue of the Americas
Property substantially in the form of Exhibit E-2 dated no more than
thirty (30) days prior to the originally scheduled Closing Date (collectively,
the “Tenant Estoppels”).  Seller
shall deliver to Purchaser at the Closing the MGH Estoppel and the Tenant
Estoppels (in such forms described in the immediately preceding sentence or
substantially in conformance with the requirements of the applicable Lease
relating to estoppel certificates) from tenants occupying eighty percent (80%)
of the occupied square footage of the Property.  Purchaser shall not be obligated to accept a Tenant Estoppel if
the tenant described therein is in default of a lease obligation which default
has not been cured by the expiration of the applicable grace period, if any,
under the applicable Lease or if such Tenant Estoppel reflects any adverse
matter or any statement whose substance indicates that any state of facts
described in a representation or warranty under this Agreement was untrue in
any material respect when made.  If
Seller obtains Tenant Estoppels from tenants occupying no less than seventy
percent (70%) of the occupied space footage of the Property, Seller shall have
satisfied its obligation with regard to delivering any additional Tenant
Estoppels if Seller delivers to Purchaser at the Closing a certificate (the “Seller
Estoppel”) substantially in the form of Exhibit G, covering Leases
that constitute the positive difference (the “Estoppel Shortfall”), if
any, between (x) eighty percent (80%) of the occupied square footage of the
Property and (y) the occupied square footage represented by the Tenant
Estoppels delivered by Seller.  If Seller
does not obtain Tenant Estoppels from tenants occupying at least seventy
percent (70%) of the occupied square footage of the Property, said failure
shall not be a default under this Agreement and Purchaser, as its sole remedy
for such failure, but without waiving any of Purchaser’s other rights or
remedies under this Agreement for reasons other than Seller’s failure to
deliver Tenant Estoppels, shall have the right to either (a) terminate this
Agreement, in which event Escrow Agent shall promptly return the Deposit and
the Interest to Purchaser and this Agreement shall terminate, and neither party
shall have any further obligation under this Agreement except for those
obligations which are expressly stated in this Agreement to survive or (b)
waive the condition in writing and accept the delivery of a Seller Estoppel
covering Leases that constitute the lesser of (x) ten percent (10%) of the
occupied square footage of the Property and (y) the Estoppel Shortfall.  Notwithstanding anything to the contrary contained
in this Section, (i) failure to deliver the MGH Estoppel shall be a default by
Seller under this Agreement and (ii) Purchaser, but not Seller, shall have the
right to waive any condition with regard to Tenant Estoppels or the Seller
Estoppel contained in this Section.


 


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ARTICLE
XI


 


BROKER


 


Each
of the parties hereto agree that they have not dealt with any broker, finder or
like agent in connection with this transaction other than CB Richard Ellis Real
Estate Services, Inc., Woody Heller and Carly Borg (collectively, “Broker”).  Seller agrees to pay a commission to the
Broker.  Each of the parties hereto
shall indemnify the other against, and shall hold the other harmless from, any
claims for brokerage commissions made by any broker, finder or like agent
claiming to have dealt with such party other than the Broker, with respect to
Purchaser and including Broker with respect to Seller, and Seller agrees that
such indemnification will not be subject to any of the limitations on liability
set forth in Section 7.6 of this Agree­ment.  Seller shall indemnify Purchaser for any claims made against
Purchaser for brokerage commissions by the Broker and Seller agrees that such
indemnification will not be subject to any of the limitations on liability set
forth in Section 7.6 of this Agree­ment. 
The provisions of this Article XI shall survive the Closing or the
termination of this Agreement.


 


 


ARTICLE XII


 


DEFAULT


 


                                Section
XII.1         Purchaser Default.  If Seller shall perform all of its obligations hereunder in full
compliance with the terms hereof and if all conditions to Purchaser’s
obligation to close have been satisfied, and if Purchaser shall be in default
in the performance of its obligations hereunder (including, 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 Section 9.2 is
caused by or is a result of a breach by Purchaser of any representation,
warranty, covenant, term, provision, agreement or obligation of Purchaser hereunder,
then Seller’s sole remedy shall be to elect to terminate this Agreement and
retain the Deposit (including any Interest 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.


 


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                                Section
XII.2         Seller Default.  If Purchaser 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 Purchaser shall not be
required to tender the Purchase Price to Seller), and if Seller shall be in
default in the perfor­mance of its obligations hereunder, or if the failure of
any of the conditions precedent to Purchaser’s obligation to close under
Section 9.2 is caused by or is a result of a breach by Seller of any
representation, warranty, covenant, term, provision, agreement or obligation of
Seller hereunder, then Purchaser’s sole remedy shall be to either (a) 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 or (b) 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 Purchaser, and (ii) this Agree­ment
shall terminate and neither party hereto shall have any further rights or
obligations hereunder.  Notwithstanding
anything to the contrary contained in this Section, if Purchaser 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
Purchaser shall not be required to tender the Purchase Price to Seller), and if
Seller shall be in Willful Default (as hereinafter defined), then Seller shall
reimburse Purchaser for all of Purchaser’s third party costs, fees and expenses
(including, without limitation, attorney’s fees, costs and expenses, inspection
fees, appraisal fees, environmental inspection fees and engineering fees)
incurred in connection with this Agreement and the transactions contemplated
hereunder and all other agreements related to the sale of the Company Interests
to Purchaser up to a maximum of One Million Dollars ($1,000,000).  As used in this Section 12.2, the term
“Willful Default” shall mean Seller’s willful refusal to perform its obligation
to sell, assign and convey to Purchaser the Company Interests in accordance
with terms of this Agreement.


 


                                Section
XII.3         No Personal Liability.  In no event shall any general or limited partner, joint venturer,
affiliate, shareholder, member, employee, representative, agent, director or
officer of Seller or Purchaser that is an individual (including officers,
directors and shareholders of any partner thereof) have any personal liability
whatsoever under this Agreement, and neither Seller nor Purchaser shall seek or
be entitled to any personal judgment against any property owned by Seller or
Purchaser other than to the extent of the proceeds actually received from this
transaction.  In the event of any
default by Seller under this Agreement, Purchaser may proceed only against Seller’s
interest in the Company Interests and in any event subject to Section 7.6
hereof.


 


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                                                                               ARTICLE
XIII


 


CASUALTY
AND CONDEMNATION


 


                                Section
XIII.1        Condemnation.  If, prior to the Closing Date, all or any “Significant Portion”
(as hereinafter defined) of the Property is taken, or rendered unusable for its
current purpose or reasonably inaccessible by 
eminent domain (or is the subject of a pending or contemplated taking
which has not been consummated), Seller shall notify Purchaser of such fact and
Purchaser shall have the option to terminate this Agreement upon notice to
Seller given not later than thirty (30) days after receipt of Seller’s notice.
For purposes of this Section 13.1 and Section 13.2 hereof, a “Significant
Portion”  shall mean Thirty
Million Dollars ($30,000,000) or more in the aggregate of the value of the
Property.  If this Agreement is
terminated as aforesaid, Escrow Agent shall promptly return the Deposit and the
Interest to Purchaser and this Agreement shall terminate, and neither party
shall have any further obligation under this Agreement except for those
obligations which are expressly stated in this Agreement to survive.  If Purchaser does not elect to terminate
this Agreement, or if the portion of the Property which is taken or rendered
unusable or reasonably inaccessible by eminent domain (or is the subject of a
pending or contemplated taking which has not been consummated) is not a Significant
Portion of the Property, Purchaser shall accept so much of the Property as
remains after such taking with no abatement of the Purchase Price, and at the
Closing Seller shall assign and turn over to Purchaser, and Purchaser shall be
entitled to receive and keep, all of Seller’s interest in and to all awards for
such taking by eminent domain.


 


                                Section
XIII.2        Casualty.  If, prior to the Closing Date, a Significant Portion of the
Property is destroyed by fire or other casualty, or if less than a Significant
Portion of the Property is so destroyed and the applicable insurance carrier
denies coverage under the policy for the full cost of reconstruction, Seller
shall notify Purchaser of such fact and Purchaser shall have the option to
terminate this Agreement upon ten (10) days notice to Seller given not later
than thirty (30) days after receipt of Seller’s notice.  If this Agreement is terminated as
aforesaid, Escrow Agent shall promptly return the Deposit and the Interest to
Purchaser and this Agreement shall terminate, and neither party shall have any
further obligation under this Agreement except for those obligations which are
expressly stated in this Agreement to survive. 
If Purchaser does not elect to terminate this Agreement as provided
above, or if the portion of the Property so damaged or destroyed is not a
Significant Portion of the Property, Purchaser shall accept the Property in its
then “as is” condition with no abatement of the Purchase Price, and at the
Closing Seller shall assign and turn over to Purchaser, and Purchaser shall be
entitled 


 


-44-

















 


to receive and keep, all of Seller’s interest in and to all casualty
insurance proceeds payable in connection with such casualty (except that the
proceeds of any business interruption or rental value insurance payable to
Seller shall be apportioned as of the Closing Date), and, to the extent the
casualty was to a Significant Portion, Purchaser shall receive a credit against
the Purchase Price at the Closing in the amount of Seller’s pro rata share of
any loss deductible payable by Seller in connection with casualty
coverage.  This Article is an express
agreement to the contrary of Section 5-1311 of the New York General
Obligation Law.


 


 


ARTICLE
XIV


 


MISCELLANEOUS


 


                                Section
XIV.1        Notices.  Any and all notices, requests, demands or other communications
hereunder shall be given in writing and by hand delivery with receipt therefor,
by facsimile delivery (with confirmation by hard copy and simultaneously sent
by one of the other means provided in this Section 14.1), by
reputable  overnight courier, or by registered
or certified mail, return receipt requested, first class postage prepaid
addressed as follows (or to such new address as any party hereto notify the
other party hereto in accordance with this Section 14.1). Any notice
required or permitted to be given hereunder shall be deemed given and effective
upon receipt or refusal thereof by the recipient (and in the case of a
facsimile delivery, upon receipt of such facsimile by the recipient):


 


	
  To Seller:

  	
  The McGraw-Hill Companies,
  Inc.

  
	
   

  	
  1221 Avenue of the
  Americas

  
	
   

  	
  New York, New York

  
	
   

  	
  Attn:  Frank J. Kaufman

  
	
   

  	
  Fax No.: (212) 512-6679

  
	
   

  	
   

  
	
  With a copy to:

  	
  The McGraw-Hill Companies,
  Inc.

  
	
   

  	
  1221 Avenue of the
  Americas

  
	
   

  	
  New York, New York

  
	
   

  	
  Attn:  General Counsel

  
	
   

  	
  Fax No.: (212) 512-3997

  
	
   

  	
   

  
	
  And with an additional

  	
   

  
	
  copy to:

  	
  Skadden, Arps, Slate,
  Meagher & Flom LLP

  



 


-45-

















 


	
   

  	
  Four Times Square

  
	
   

  	
  New York, New York 10036

  
	
   

  	
  Attn:  Neil L. Rock, Esq.

  
	
   

  	
  Fax No.: (212) 735-2000

  
	
   

  	
   

  
	
  To Purchaser:

  	
  c/o SL Green Realty Corp.

  
	
   

  	
  420 Lexington Avenue

  
	
   

  	
  New York, New York 10170

  
	
   

  	
  Attn: Marc Holliday and
  Andrew Levine, Esq.

  
	
   

  	
  Fax No.: (212) 216-1785

  
	
   

  	
   

  
	
  With a copy to:

  	
  Greenberg Traurig LLP

  
	
   

  	
  200 Park Avenue

  
	
   

  	
  New York, New York 10166

  
	
   

  	
  Attn: Stephen L.
  Rabinowitz, Esq.

  
	
   

  	
  Fax No.: (212) 805-9295

  
	
   

  	
   

  
	
  To Escrow Agent:

  	
  Skadden, Arps, Slate,
  Meagher & Flom LLP

  
	
   

  	
  Four Times Square

  
	
   

  	
  New York, New York  10036

  
	
   

  	
  Attn:  Neil L. Rock, Esq.

  
	
   

  	
  Fax No.: (212) 735-2000

  



 


Purchaser’s
counsel may give any notices or other communications hereunder on behalf of
Purchaser and Seller’s counsel may give any notices or other communications
hereunder on behalf of Seller.


 


                                Section
XIV.2        Governing Law; Venue.


 


(21)         This Agreement was
negotiated in the State of New York and was executed and delivered by Seller
and Purchaser in the State of New York, which State the parties agree has a
substantial relationship to the parties and to the underlying transactions
embodied hereby, and in all respects, including, without limiting the
generality of the foregoing, matters of construction, validity, enforcement and
performance, this Agreement and the obligations arising hereunder shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and performed wholly within such State, without
giving effect to the principles of conflicts of law of such jurisdiction.  To the fullest extent permitted by law, the
parties hereby unconditionally and irrevocably waive and release any claim that
the 


 


-46-

















 


law
of any other jurisdiction governs this Agreement and this Agreement shall be
governed and construed in accordance with the laws of the State of New York as
aforesaid pursuant to Section 5-1401 of the New York General Obligations Law.


 


(22)         To the maximum extent
permitted by applicable law, any legal suit, action or proceeding against any
of the parties hereto arising out of or relating to this Agreement shall be
instituted in any federal or state court in New York, New York pursuant to
Section 5-1402 of the New York General Obligations Law and each party hereby
irrevocably submits to the exclusive jurisdiction of any such court in any such
suit, action or proceeding.  Each party
hereby agrees to venue in such courts and hereby waives, to the fullest extent
permitted by law, any claim that any such action or proceeding was brought in
an inconvenient forum.


 


                                Section
XIV.3        Headings.  The captions and headings herein are for convenience and
reference only and in no way define or limit the scope or content of this
Agreement or in any way affect its provisions.


 


                                Section
XIV.4        Business Days.  If any date herein set forth for the performance of any obligations
of Seller, Purchaser or Escrow Agent or for the delivery of any instrument or
notice as herein provided should be on a Saturday, Sunday or legal holiday, the
compliance with such obligations or delivery shall be deemed acceptable on the
next Business Day following such Saturday, Sunday or legal holiday.  As used herein, the term (i) “legal
holiday” means any state or Federal holiday for which financial
institutions or post offices are generally closed in the State of New York and
(ii) “Business Day” means any weekday of Monday through Friday which is
not a legal holiday.


 


                                Section
XIV.5        Counterpart Copies.  This Agreement may be executed in two or more counterpart copies,
all of which counterparts shall have the same force and effect as if all
parties hereto had executed a single copy of this Agreement.


 


                                Section
XIV.6        Binding Effect.  This Agreement shall not become a binding obligation upon Seller
or Purchaser unless and until the same has been fully executed by Purchaser and
Seller and a fully executed counterpart has been delivered by Seller to
Purchaser.


 


                                Section
XIV.7        Successors and Assigns.  This Agreement shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and permitted assigns.


 


-47-

















 


                                Section
XIV.8        Assignment.  This Agreement may not be assigned by Purchaser except to an
entity which directly or indirectly controls, is controlled by, or is under
common control with Purchaser (any such entity, a “Permitted Assignee”)
and any other assignment or attempted assignment by Purchaser shall constitute
a default by Purchaser hereunder and shall be deemed null and void and of no
force or effect.  A copy of any
assignment permitted hereunder, together with an agreement of the assignee
assuming all of the terms and conditions of this Agreement to be performed by
Purchaser, in form reasonably satisfactory to counsel for Seller, shall be
delivered to the attorneys for Seller prior to the Closing, and in any event no
such assignment shall relieve Purchaser from Purchaser’s obligations under this
Agreement nor result in a delay in the Closing. In the event that Purchaser
assigns this Agreement to a Permitted Assignee, all representations and
warranties and covenants and obligations of Purchaser hereunder shall apply
with equal force to such Permitted Assignee. 
For purposes hereof, the term “control” (including, with correlative
meanings, the terms “controlled by” and “under common control with”) means the
ownership, directly or indirectly, of more than fifty percent (50%) of the
interests in an entity, together with the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such entity, whether through ownership of voting stock, by contract or
otherwise.


 


                                Section
XIV.9        Interpretation.  This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that it may have been
prepared by counsel for one of the parties, it being recognized that both
Seller and Purchaser have contributed substantially and materially to the
preparation of this Agreement.


 


                                Section
XIV.10      Entire Agreement.  This Agreement and the Exhibits and Schedules attached hereto
contain the final and entire agreement between the parties hereto with respect
to the sale and purchase of the Shares and are intended to be an integration of
all prior negotiations and understandings. 
Purchaser, Seller and their respective agents shall not be bound by any
terms, conditions, statements, warranties or representations, oral or written,
not contained herein.  No change or
modifications to this Agreement shall be valid unless the same is in writing
and signed by the parties hereto.  Each
party reserves the right to waive any of the terms or conditions of this
Agreement which are for their respective benefit and to consummate the
transactions contemplated by this Agreement in accordance with the terms and
conditions of this Agreement which have not been so waived.  Any such waiver must be in writing signed by
the party making such waiver.


 


-48-

















 


                                Section
XIV.11      Severability.  If any one or more of the provisions hereof shall for any reason
be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein, unless and to the
extent that the invalidation of any such term or provision materially alters
the intent of the parties hereto.


 


                                Section
XIV.12      Exhibits.  Each of the Exhibits and Schedules attached hereto are
incorporated herein by reference.


 


                                Section
XIV.13      Prevailing Party.  Should either party employ an attorney to
enforce any of the provisions hereof (whether before or after Closing, and
including (x) any claims or actions involving amounts held in escrow, if any),
and (y) any claims or actions for a breach of representation, the nonprevailing
party in any final judgment agrees to pay the other party’s reasonable attorneys’
fees and expenses in or out of litigation and, if in litigation, trial,
appellate, bankruptcy or other proceedings, expended or incurred in connection
therewith, as determined by a court of competent jurisdiction.  The provisions of this Section 14.13 shall
survive Closing and/or any termination of this Agreement.


 


                                Section
XIV.14      No Recording.  Neither this Agreement nor any memorandum or
short form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.


 


                                Section
XIV.15      No Other Parties.  This Agreement is not intended, nor shall it be construed, to
confer upon any person or entity, except the parties hereto and their
respective heirs, successors and permitted assigns, any rights or remedies
under or by reason of this Agreement.


 


                                Section
XIV.16      Waiver of Trial by Jury.  The respective parties hereto shall and hereby do waive trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or in any way
connected with this Agreement, or for the enforcement of any remedy under any
statute, emergency or otherwise.


 


                                Section
XIV.17      Confidentiality.  (a)  Subject to Section
14.17(c), prior  to the Closing, each
party to this Agreement (an “Informed Party”) shall hold, and shall use
its best efforts to cause its partners, officers, directors, employees,
consultants, 


 


-49-

















 


advisors, agents and representatives (including without limitation, its
attorneys, accountants and financial advisors) (collectively, its “Representatives”)
to hold, in confidence, unless compelled to disclose by regulatory or judicial
process (such Informed Party’s counsel having reasonably advised such Informed
Party that such disclosure is compelled), all documents and information
concerning the Seller, the Company Interests, the Company, the Property,
Purchaser and the transactions contemplated hereby furnished to such party in
connection with the transactions contemplated by this Agreement, except to the
extent that such information can be shown (i) to have been previously known on
a nonconfidential basis by the Informed Party, (ii) is or becomes generally
available to the public other than as a result of and through no fault of the
Informed Party or its Representatives or (iii) to have been later lawfully
acquired by the Informed Party other than in connection with the transactions
contemplated hereby; provided that the Informed Party may disclose such
information to its Representatives, lenders and other investors and prospective
lenders and other investors in connection with the transactions contemplated by
this Agreement so long as same are informed by the Informed Party of the confidential
nature of such information and are directed by the Informed Party to treat such
information confidentially in accordance with the terms of this Agreement.  Notwithstanding anything contained herein to
the contrary, in the event the Informed Party is required by regulatory or
judicial process to disclose any confidential documents or information, the
Informed Party may do so, provided that prior to disclosing same, the Informed
Party shall promptly notify the other party to this Agreement in writing of
such required disclosure and shall reasonably cooperate to limit the required
disclosure.  If this Agreement is
terminated such confidence shall be maintained and the Informed Party shall,
and shall use its best efforts to cause its partners, officers, directors,
employees, consultants, advisors and agents to, destroy or deliver to Purchaser
or Seller, as applicable, upon request, all documents and other materials, and
all copies thereof, obtained by the Informed Party or on its behalf in
connection with this Agreement that are subject to such confidence, with any
such destruction certified by an officer of the Informed Party to Purchaser or
Seller, as applicable, in writing.


 


(23)         Prior to the Closing,
Purchaser and Seller agree that no public release or announcement concerning
the transactions contemplated hereby shall be issued by either party and that
Seller shall use its reasonable efforts to cause the Company not to issue any
such public release or announcements, except as such release or announcement
may be required by law, in which case the applicable party shall use reasonable
efforts to accommodate the other party with respect to language or timing of
such release or announcement in advance of such issuance.  Promptly following the Closing, each of
Purchaser and Seller agrees to consult with the other in issuing any 


 


-50-

















 


press
release or otherwise making any announcement with respect to the transactions
contemplated hereby, and shall not issue any such press release or make any
such announcement prior to such consultation and the written consent of the
other party with respect to the form, substance and timing thereof, except as
may be required by law, in which case the applicable party shall use reasonable
efforts to accommodate the other party with respect to language or timing of
such release or announcement in advance of such issuance.  Notwithstanding anything to the contrary
contained in this Section 14.17, Seller recognizes that SL Green Realty Corp.,
who indirectly owns interests in Purchaser, is a public company and,
accordingly, Seller acknowledges and agrees that Purchaser or SL Green Realty
Corp. 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, including without limitation, the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, and any, rules or
regulations thereunder, GAAP or other accounting rules or procedures or SL
Green Realty Corp.’s prior custom, practice or procedure.


 


(24)         Notwithstanding
anything to the contrary herein, Seller acknowledges and agrees that Purchaser
and its brokers, advisors, consultants, attorneys, representations or agents,
shall have the right at any time to approach, discuss meet with or otherwise
engage in a discussion with RGI or any general or limited partner, joint
venturer, affiliate, shareholder, employee, representative, agent, director or
officer of RGI with respect to the Property, the Company, the Com­pany
Interests, the Basic Documents, the existence or subject matter of this
Agreement or any matter relating to any of the foregoing.


 


(25)         Notwithstanding the
foregoing, the parties (and each employee, representative, or other agent of
either party) may disclose to any and all persons, without limitation of any
kind, the tax treatment and any facts that may be relevant to the tax structure
of the transaction; provided however, that neither party (nor any
employee, representative or other agent thereof) may disclose any other
information that is not relevant to understanding the tax treatment and tax
structure of the transaction (including the identity of any party and any
information that could lead another to determine the identity of any party) or
any other information to the extent that such disclosure could result in a
violation of any federal or state securities laws.


 


(26)         The provisions of
Section 14.17(a) and (b) shall survive the earlier termination of this
Agreement.


 


-51-

















 


Section 1.7             Further
Assurances.  Seller and Purchaser shall, at or after the Closing,
execute, acknowledge and deliver to each other such documents, instruments and
further assurances which Seller or Purchaser may reasonably request in order to
carry out the purpose of this Agree­ment. 
This Section 14.18 shall survive the Closing.


Section 1.1             


Section 1.8             Dividends
after Closing.  Seller hereby covenants and agrees that in
the event Seller receives any dividend or other payment from the Com­pany
declared after the Closing Date, Seller shall promptly pay such amount to
Purchaser.  This Section 14.19
shall survive the Closing.


 


-52-

















 


IN WITNESS WHEREOF, this
Agreement has been duly executed by the parties hereto as of the day and year
first above written.


 


	
  SELLER

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE MCGRAW-HILL COMPANIES,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  PURCHASER

  
	
   

  	
   

  
	
   

  	
   

  
	
  GREEN HILL ACQUISITION LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
			



 


 


 


 


The undersigned has executed
this Agreement


solely to confirm its
acceptance of the duties


of Escrow Agent as set forth
in Section 3 hereof:


 


 


SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP


 


 


	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


-53-

















 


EXHIBIT A


 


Description of 1221 Avenue of the Americas Property


 


ALL that certain plot, piece
or parcel of land, situate, lying and being in the Borough of Manhattan,
County, City and State of New York, bounded and described as follows:


 


BEGINNING at the corner
formed by the intersection of the southerly side of West 49th Street and the westerly
side of Avenue of the Americas;


 


RUNNING THENCE westerly
along the southerly side of West 49th Street 543 feet to a point on the
southerly side of West 49th Street;


 


THENCE southerly parallel
with the westerly side of Avenue of the Americas, 100 feet 5 inches;


 


THENCE easterly parallel
with the southerly side of West 49th Street 3 feet;


 


THENCE southerly parallel
with the westerly side of Avenue of the Americas and part of the way through a
party wall 100 feet 5 inches to the northerly side of West 48th Street;


 


THENCE easterly along the
northerly side of West 48th Street 540 feet to its intersection with the
westerly side of Avenue of the Americas;


 


THENCE northerly along the
westerly side of Avenue of the Americas 200 feet 10 inches to the point or place
of BEGINNING.


 


-54-

















 


EXHIBIT B-1


 


Description of 166 West 48th Street Property


 


ALL that certain plot, piece
or parcel of land, situate, lying and being in the Borough of Manhattan,
County, City and State of New York, bounded and described as follows:


 


BEGINNING at a point on the
southerly side of 48th Street, distant 120 feet easterly from the southeasterly
corner of Seventh Avenue and 48th Street;


 


RUNNING THENCE southerly and
partly through the center of a party or division wall between the dwelling
house on the lot hereby conveyed and the one on the lot adjoining the same on
the westerly side thereof and parallel with Seventh Avenue, 100 feet 4 inches
to the center line of the block;


 


THENCE easterly along said
center line and parallel with 48th Street, 20 feet;


 


THENCE northerly and
parallel with Seventh Avenue, 100 feet 4 inches to the southerly side of 48th
Street; and


 


THENCE westerly along said
southerly side of 48th Street, 20 feet to the point or place of BEGINNING.


 


-55-

















 


EXHIBIT B-2


 


Description of 151 West 48th Street Property


 


ALL that certain plot, piece
or parcel of land, situate, lying and being in the Borough of Manhattan,
County, City and State of New York, bounded and described as follows:


 


BEGINNING at a point on the
northerly side of 48th Street, distant 240 feet southeast­erly from the
northwesterly corner of said street and Seventh Avenue;


 


RUNNING THENCE northeasterly
parallel with Seventh Avenue and through the center of a party wall, 89 feet 9
inches;


 


THENCE southeasterly 10 feet
1 inch to a point, distant 250 feet southeasterly from the easterly side of
Seventh Avenue in a line drawn parallel with said street and distant 88 feet 5
inches northeasterly therefrom;


 


THENCE northeasterly
parallel with said avenue, 12 feet to the center line of the block;


 


THENCE southeasterly
parallel with said street, 10 feet;


 


THENCE southwesterly
parallel with said avenue and through the center of another party wall, 100
feet 5 inches to the northerly line of 48th Street; and


 


THENCE northwesterly along
said northerly line of 48th Street, 20 feet to the point or place of BEGINNING.


 


-56-

















 


EXHIBIT C


 


Reference Balance Sheet


 


[Attached]


 


-57-

















 


EXHIBIT D


 


 


Form Deposit Letter of Credit


 


 


	
  Credit No.
  ____________________

  	
  _______________,
  2002

  



 


 


 


_______________________


_______________________


_______________________


Attn:  __________________


 


 


Gentlemen:


 


By
order and for the account of _______________________, a _______________________
(the “Purchaser”), __________________, a ___________ banking ______________
(“Bank”) hereby opens in favor of _______________________ (“Beneficiary”) in
connection with a certain [Purchase and Sale Agreement] dated as of
____________ ____, 200___ (the “Purchase Agreement”) entered into between
Beneficiary, as seller and Purchaser, as purchaser, Banks’s Irrevocable and
Unconditional Credit No. _______________ for _______________________
($____________) effective on ____________ ____, 200___ and expiring at the
close of business on ____________ ____, 200___.


 


Funds
under this Credit may be drawn by Beneficiary upon demand by delivering to the
Bank a Demand Draw and Direction (the “Demand Draw and Direction”) dated as of
the date of any such draw signed by Beneficiary, which Demand Draw and
Direction shall be in the form attached hereto as Exhibit A and shall be
delivered to the Bank at the following address or to such other address in New
York City as may from time to time be notified by the Bank to Beneficiary in
writing:


 


_____________________________


_____________________________


_____________________________


_____________________________


Attention:


 


-58-

















 


Partial
draws under this Letter of Credit are not permitted.


 


The
Bank is authorized to accept and shall accept any statement furnished hereunder
as binding and correct without investigation or responsibility for the
accuracy, veracity, conclusory correctness or validity of the dame or any part
thereof.


 


If
the Banks receives a Demand Draw and Direction in conformity with the
provisions of this Credit on any banking day at any time prior to 5:00 p.m. on
[January 31, 2004], the Bank will honor such Demand Draw and Direction by
paying the proceeds thereof pursuant to the provisions of the Demand Draw and
Direction by the close of business on the day after receipt of the Demand Draw
and Direction if received not later than 12:30 p.m. New York City time, or by
the close of business on the second banking day following receipt fo the Demand
Draw and Direction if received after 12:30 p.m. New York City time.  The term “banking day” as used herein shall
mean any day other than a Saturday, Sunday or holiday or a day on which banks
located in New York City are required or authorized to close or a day on which
the New York Stock Exchange is closed.


 


This
Credit is, except as expressly stated herein, subject to the provisions of the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication no. 500, as in effect on the date
hereof.  If this Credit expires during
an interruption in business, as described in Article 17 of said publication
500, the Bank specifically agrees to honor a Demand Draw and Direction
presented in conformity with the provisions of this Credit within thirty (30)
days after the resumption of the Bank’s business.


 


Except
as set forth in the next sentence, the reference in this Credit or in the
Exhibit attached hereto to any other documents or instruments shall in no event
be construed as having the effect of incorporating by reference the provision
of any such other document or instrument in this Credit or in the Exhibit
attached hereto.  This Credit includes
the Exhibit attached hereto which in incorporated in this Credit by reference.


 


Should
Beneficiary have occasion to communicate with the Bank regarding this Credit,
kindly address such correspondence to ________________, Attention:
__________________, mentioning specifically the Bank’s Credit No.
_____________, or to such other address in New York City as may from time to
time be notified by the Bank to Beneficiary in writing.


 


-59-

















 


We
hereby engage with drawers endorsers and bona fide holders that drafts and or
documentation drawn under and in compliance with the terms of this Credit are
duly honored.


 


This
Credit shall not be transferable by Beneficiary without the prior consent of
the Bank.


 


	
  Very truly yours.

  
	
   

  	
   

  
	
  [BANK]

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
  (Authorized Signature)

  
			



 


-60-

















 


Exhibit A


 


Demand Draw and Direction


 


____________________,
200___


 


_____________________


_____________________


_____________________


_____________________


 


Gentlemen:


 


Reference
is made to a certain irrevocable and unconditional Letter of Credit (the
“Credit”) No. __________________ dated ____________ ____, 200___, in the amount
of $_________________ issued by __________________ (“Bank”) by order of and for
the account of ___________________ (the “Purchaser”) in favor of
_____________________ in connection with a certain Purchase and Sale Agreement
dated as of ____________ ____, 200___ (the “Purchase Agreement”) entered into
between Beneficiary and the Purchaser.


 


Beneficiary
hereby requests the Bank to honor the demand draw (the “Draw”) under, and in
the full amount of, the Credit, and in connection therewith certifies to the
Bank that Beneficiary has the right to make the Draw under the Credit pursuant
to the provisions of the Purchase Agreement.


 


Beneficiary
directs the Bank to remit the proceeds of the draw as follows:


 


[INSERT
WIRE INFORMATION FOR BENEFICIARY]


 


The
undersigned representative of Beneficiary certifies to the Bank that he is such
representative and has the full power and authority as such representative to
signed and deliver this Demand Draw and Direction to the Bank on behalf of
Beneficiary.


 


	
  Very truly yours,

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


-61-

















 


                                                                                EXHIBIT
E-1


 


Form of McGraw-Hill Estoppel


 


THIS
LEASE ESTOPPEL CERTIFICATE (this “Certificate”) is made this ___ day of
______________, 2003, by _____________, a ___________________ (“Tenant”),
to and for the benefit of ______________________ (“Landlord”), and may
be relied upon by Landlord and by any purchaser of an interest in Landlord or
Landlord’s interest in the building (the “Building”) located at 1221
Avenue of the Americas, New York, New York (“Buyer”), together with any
and all lenders to Landlord or Buyer, the rating agencies (in the event of the
securitization of the loan made by the lenders to Landlord or Buyer) and any
and all of the respective immediate and remote successors and/or assigns of any
of the foregoing (all of the foregoing, individually and/or collectively, the “Addressees”).


 


WITNESSETH:


 


WHEREAS,
Landlord has requested that Tenant provide certain certifications with respect
to the Lease (as such term is hereinafter defined) which may be relied upon by
the Addressees;


 


NOW,
THEREFORE, as of the date first set forth above, Tenant hereby certifies as
follows:


 


1.             Tenant is the tenant under that
certain Agreement of Lease dated as of__________, as amended by those certain
documents listed on the schedule annexed hereto and made a part hereof as
Exhibit “A” (said Agreement of Lease, as so amended, is hereinafter referred to
as the “Lease,” and the premises demised to Tenant thereunder are
collectively hereinafter referred to as the “Premises”).  Terms used in this Certificate and not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Lease.


 


2.             The documents pursuant to which
each portion of the Premises was demised to Tenant, and the term, Annual Basic
Rent, deemed rentable square foot area, deemed building denominator, Tax Base
Year, and the Operating Expense Base Year with respect each such portion of the
Premises, are as set forth on the schedule annexed hereto and made a part
hereof as Exhibit “B”.


 


3.             The Lease is in full force and
effect, has not been modified (except as set 


 


-62-

















 


forth in Exhibit A), and
represents the entire agreement between Landlord and Tenant with respect to (i)
the Premises and (ii) Tenant’s interest (both real property and personal) in
the Building and the Real Property, except as set forth in the documents listed
on the schedule annexed hereto and made a part hereof as Exhibit “C” (with relate
to certain portions of the Building other than the Premises more particularly
described therein); and no other agreement or representation, oral or written,
has been made regarding the Premises, the Building or the Real Property.


 


4.             The dates to which the Fixed Rent,
all additional rent, any other items of Rental have been paid for each portion
of the Premises are as set forth in the schedule annexed hereto and made a part
hereof as Exhibit “D”.  No Fixed Rent,
additional rent, any other items of Rental have been paid more than thirty (30)
days in advance of their respective due dates. 
Tenant’s obligation to pay Fixed Rent under the Lease has commenced with
respect to each portion of the Premises, all free rent periods under the Lease
have expired and Tenant is not entitled to any future rent concessions.


 


5.             Landlord is not in default of its
obligations under the Lease and no event has occurred which, by the giving of
notice or the passage of time, or both would constitute an event of default by
Landlord under the Lease.  Tenant has no
offsets, defenses, claims, or counterclaims to the payment of rent or other
sums, or the performance of any of Tenant’s other obligations, under the Lease.


 


6.             The term of the Lease has commenced
with respect to, and Tenant has taken possession of, each portion of the
Premises.  All work to be performed by
Landlord under the Lease has been completed in accordance with the Lease and
all contributions, reimbursements, rent concessions, work credits and
allowances due to Tenant under the Lease in connection with any work or
otherwise have been paid in full, and there are no other sums currently owed to
Tenant by Landlord.


 


7.             Tenant does not have any right to
purchase the Building or any part thereof or any interest therein by right of
refusal, first offer or negotiation, option or otherwise.  Tenant does not have any right to terminate
the Lease, in whole or in part, except to the extent expressly provided for in
Articles _______of the Lease.


 


8.             All rights granted to Tenant to
lease or license space in the Building by right of refusal, first offer or
negotiation, option or otherwise, have either expired or are otherwise no
longer effective except as follows: ___________.


 


9.             Tenant does not have any right to
renew the Lease or extend the term 


 


-63-

















 


thereof, except to the
extent expressly provided for in Article ___ of the Lease.


 


10.           No part of the Premises has been
subleased, nor has the Lease been assigned, except as follows:___________.


 


11.           The total security on deposit with
Landlord under the Lease, whether in the form of cash or otherwise, is
$__________.


 


12.           No actions, whether voluntary or
otherwise, are pending against Tenant (or Guarantor) under the bankruptcy laws
of the United States or any state or country and there are no claims or actions
pending against Tenant (and/or Guarantor) which if decided against Tenant
(and/or Guarantor) would materially and adversely affect Tenant’s (and/or
Guarantor’s) financial condition or ability to perform Tenant’s (and/or
Guarantor’s) obligations under, or in respect of, the Lease.


 


13.           This certificate has been duly
authorized, executed and delivered by Tenant. 
The Lease is guaranteed by ___________ and such guaranty is in full
force and effect.


 


Tenant
acknowledges and agrees that this certificate may be relied upon by, and shall
inure to the benefit of the Addressees.


 


IN
WITNESS WHEREOF, Tenant has executed this Certificate as of the date above
first written.


 


	
  TENANT:

  
	
   

  
	
  By:

  



 


-64-

















 


EXHIBIT E-2


 


Form of Tenant Estoppel Certificate


 


TENANT ESTOPPEL CERTIFICATE


 


 


To:                              Rock-McGraw,
Inc., its current and future shareholders, and their current and future
lenders, together with their respective successors and assigns (collectively,
the “Estoppel Parties”)


 


Re:          Property Address:               1221
Avenue of the Americas,


New
York, New York,


(the
“Property”)


Lease
Date:  ___________________


Amendments:  ___________________


Landlord:                                             Rock-McGraw,
Inc., together with its successors and assigns] (“Landlord”)


Tenant:  ___________________ (“Tenant”)


Square
Footage Leased:___________________


Suite
No./Floor: ___________________ (the “Premises”)


 


The
undersigned, as the tenant under the above-referenced lease (the “Lease”), hereby certifies to the Estoppel
Parties the following:


 


1.             The lease attached hereto as Exhibit
A is a true, correct, and complete copy of the Lease, is in full force and
effect and has not been modified, supplemented, or amended in any way, and the
Lease represents the entire agreement between the parties as to the Premises,
the Building or any portion thereof


 


2.             The amount of fixed monthly rent is
$___________.  The base year for
operating expenses and real estate taxes, as defined in the Lease, is
_______________________.  No such rent
has been paid more than one (1) month in advance of its due date, except as
follows:


 


3.             Tenant’s security deposit is
$___________.  Tenant has paid rent for
the Premises up to and including ___________, 2003 and is not in default under
the Lease.


4.             Tenant is currently in occupancy of
the Premises.


 

















 


5.             The commencement date of the Lease
was ________________, the Lease terminates on _________________ and Tenant has
the following renewal/extension option(s): 
________________________________________________. All rights granted to
Tenant to lease or license space in the Building by right of refusal, first
offer or negotiation, option or otherwise, have either expired or are otherwise
no longer effective except as follows: ___________. Tenant has not surrendered,
or sent any notice of surrender with respect to, any portion of the Premises.


 


6.             All work to be performed by
Landlord under the Lease has been performed as required and has been accepted
by Tenant; and any payments, free rent, or other payments, credits, allowances
or abatements required to be given by Landlord to Tenant has already been
received by Tenant, except as follows:


 


7.             To the best knowledge of Tenant,
Landlord is not in default of its obligations under the Lease and no event has
occurred which, by the giving of notice or the passage of time, or both would
constitute an event of default by Landlord under the Lease.  Tenant has no offsets, defenses, claims, or
counterclaims to the payment of rent or other sums, or the performance of any
of Tenant’s other obligations, under the Lease.


 


8.             Tenant has received no notice from
Landlord of any prior sale, assignment, pledge or other transfer of the Lease
or of the rents received therein.


 


9.             Tenant has not assigned the Lease
or sublet all or any portion of the Premises except
________________________.  Tenant does
not hold the Premises under assignment or sublease, nor does anyone except
Tenant and its employees occupy the Premises, except:______________________.


 


10.           Tenant has no right or option to
terminate the Lease or purchase all or any part of the Premises or the building
of which the Premises is a part or to occupy any additional space at the
Property.


 


11.           No actions, whether voluntary or otherwise,
are pending against Tenant under the bankruptcy laws of the United States or
any state and there are no claims or actions pending against Tenant which if
decided against Tenant would materially and adversely affect Tenant’s financial
condition or Tenant’s ability to perform its obligations under the Lease.


 


12.           The statements contained herein may
be relied upon by the Estoppel Parties.


 


-2-

















 


13.           The undersigned is duly authorized to
execute this certificate.


 


Dated
this ___________ day of December, 2003.


 


 


	
  TENANT

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


-3-

















 


EXHIBIT F


 


Form of Manager’s Certificate


 


The
undersigned Rockefeller Group Development Corporation (the “Property Manager”),
in its capacity as property manager of 1221 Avenue of the Americas, New York,
New York (the “Property”), hereby certifies to The McGraw Hill Companies
Inc. (“MGH”) that, as of December __, 2003, and to its knowledge:


 


(a)           There are no leases, licenses or
other occupancy agreements, or any modifications, amendments or supplements
thereof, affecting any portion of the Property on the date hereof and that are
binding on Rock-McGraw Inc. (the “Com­pany”), except for the leases, and
any modifications, amendments or supplements thereof, described in the schedule
of leases annexed as Schedule 1
hereto (such schedule, the “Lease Schedule”, and the leases, and any
modifications, amendments or supplements thereof described on such schedule,
collectively, the “Leases”);


 


(b)           Except as set forth on Schedule 2 attached hereto, the Company has
no obligations for tenant allowances or contributions towards tenant
improvements, including but not limited to concessions, payments and expenses
required under the express provisions of a Lease to be paid or incurred by the
landlord thereunder, the costs and expenses, or reimbursements, to prepare the
space thereunder for the initial occupancy of the tenant, lease buyout costs
and moving allowances in connection with the foregoing.


 


(c)           (i) The Leases set forth the entire
agreements between the Company and the tenants thereunder (collectively, “Tenants”)
for the use and occupancy of their respective demised premises; (ii) no Tenant
is in arrears in the payment of rent for more than the current calendar month,
except as set forth in the tenant arrearages schedule annexed as Schedule 3 hereto; (iii) no notices of
default with respect to the Leases have been sent or received, which have not
been cured, and there are no disputes with any Tenant in connection with the
tax, operating expense or other escalations or amounts due under the Leases;
and (iv) no Tenant is entitled to “free” rent, rent concessions, rebates, rent
abatements, set-offs or offsets against rent except as set forth in Schedule 3A annexed hereto.


 


(d)           Schedule 4 hereto is a true and complete
copy of the rent roll of the Property as of December __, 2003.


 

















 


(e)           Unless otherwise indicated on the
Lease Schedule, the Company has received no written notice from any Tenants
claiming any extension, renewal, expansion, or termination options other than
as set forth in their Leases.


 


(f)            Except as otherwise set forth in the
schedule of security deposits annexed as Schedule
5 hereto, there are no Tenant security deposits being held by the
Company.


 


(g)           The Leases furnished or made
available to MGH are true and complete copies thereof.  To the knowledge of the Company, there are
no subtenants of any Tenant except as set forth in Schedule 6.


 


(h)           The Company has not entered into any
employment contracts relating to the Property, except that the Company is a
party to or is otherwise bound by the collective bargaining agreements between
the Realty Advisory Board on Labor Relations, Inc. and the following labor
unions:  (i) Local 32B-32J of the
Service Employees International Union, AFL-CIO, covering all of the employees
of the Company employed at the Property below the level of Chief Engineer; (ii)
Local Union Nos. 94, 94A, and 94B of the International Union of Operating
Engineers, covering the employees employed by the Company at the Property as
Chief Engineer, (iii) Local Union 157 covering all locksmiths employed by the
Company at the Property, and (iv) Local Union 638 covering all steamfitters and
plumbers employed by the Company at the Property.


 


(i)            We have delivered copies to McGraw
Hill of all service contracts, including management, brokerage, and operating
agreements, affecting the Property and currently binding on the Company (the “Contracts”).
The copies of the Contracts furnished or made available to MGH are true and
complete copies of the originals represented thereby.


 


(j)             Except as set forth in Schedule 7 annexed hereto, there are no
material suits, actions, litigations, arbitrations, governmental, administrative
or other proceedings presently pending or, to the knowledge of the undersigned,
threatened against the Company or the Property.


 


For
purposes hereof, the term “to its knowledge” or words of similar import shall
be deemed to mean, and shall be limited to, the actual (as distinguished from
implied, imputed or constructive) knowledge of Manager after, and based solely
upon, making inquiry of the person(s) charged with the management
responsibility for 


 


-2-

















 


the Property, without such
person(s) having any obligation to make an independent inquiry or
investigation.


In
addition, this certificate is given on the express understanding that (and MGH
has induced Manager to deliver this certificate on the express condition and
understanding that) Manager shall not be liable to MGH for any misstatement or
for incompleteness herein or in any of the Schedules attached hereto, and that
MGH shall have no remedy against Manager for any misstatement made by Manager (herein
or in any of the Schedules attached hereto) and/or for the incompleteness of
any of the statements made herein or in any of the Schedules attached hereto.


 


MGH
hereby acknowledges the statements made in the preceding paragraph, and
confirms that it has had access to Manager’s files and conducted its own due
diligence of the Property, the Leases, the Contracts, and the operation of (and
any matter relating to) the Property.


 


 


	 
	
  Rockefeller Group
  Development

  
	 
	
  Corporation

  
	 
	
   

  
	 
	
   

  
	 
	
  By:

  	
   

  
	
   

  
	
  Agreed and Accepted:

  
	
   

  
	
  The McGraw Hill Companies
  Inc.

  
	
   

  
	
  By:

  	
   

  	
   

  
					



 


-3-

















 


EXHIBIT G


 


Form of Seller’s Estoppel


 


To:                              Rock-McGraw,
Inc., its current and future shareholders, and their current and future
lenders, together with their respective successors and assigns (collectively,
the “Estoppel Parties”)


 


Re:          Property Address:               1221
Avenue of the Americas,


New
York, New York,


(the
“Property”)


Lease
Date:  ___________________


Amendments:  ___________________


Landlord:                                             Rock-McGraw,
Inc., together with its successors and assigns] (“Landlord”)


Tenant:  ___________________ (“Tenant”)


Square
Footage Leased:___________________


Suite
No./Floor: ___________________ (the “Premises”)


 


The
undersigned, on behalf of the tenant under the above-referenced lease (the “Lease”), hereby certifies to its knowledge,
to the Estoppel Parties the following matters:


 


1.             The lease attached hereto as Exhibit
A is a true, correct, and complete copy of the Lease, is in full force and
effect and has not been modified, supplemented, or amended in any way, and the
Lease represents the entire agreement between the parties as to the Premises,
the Building or any portion thereof


 


2.             The amount of fixed monthly rent is
$___________.  The base year for
operating expenses and real estate taxes, as defined in the Lease, is
_______________________.  No such rent
has been paid more than one (1) month in advance of its due date, except as
follows:


 


3.             Tenant’s security deposit is
$___________.  Tenant has paid rent for
the Premises up to and including ___________, 2003 and is not in default under
the Lease.


4.             Tenant is currently in occupancy of
the Premises.


 


5.             The commencement date of the Lease
was ________________, the Lease terminates on _________________ and Tenant has
the following renewal/extension 


 

















 


option(s): 
________________________________________________. All rights granted to
Tenant to lease or license space in the Building by right of refusal, first
offer or negotiation, option or otherwise, have either expired or are otherwise
no longer effective except as follows: ___________. Tenant has not surrendered,
or sent any notice of surrender with respect to, any portion of the Premises.


 


6.             All work to be performed by
Landlord under the Lease has been performed as required and has been accepted
by Tenant; and any payments, free rent, or other payments, credits, allowances
or abatements required to be given by Landlord to Tenant has already been
received by Tenant, except as follows:


 


7.             Landlord is not in default of its
obligations under the Lease and no event has occurred which, by the giving of
notice or the passage of time, or both would constitute an event of default by
Landlord under the Lease.  Tenant has no
offsets, defenses, claims, or counterclaims to the payment of rent or other
sums, or the performance of any of Tenant’s other obligations, under the Lease.


 


8.             Tenant has received no notice from
Landlord of any prior sale, assignment, pledge or other transfer of the Lease
or of the rents received therein.


 


9.             Tenant has not assigned the Lease
or sublet all or any portion of the Premises except
________________________.  Tenant does
not hold the Premises under assignment or sublease, nor does anyone except
Tenant and its employees occupy the Premises, except:______________________.


 


10.           Tenant has no right or option to
terminate the Lease or purchase all or any part of the Premises or the building
of which the Premises is a part or to occupy any additional space at the
Property.


 


11.           No actions, whether voluntary or
otherwise, are pending against Tenant under the bankruptcy laws of the United
States or any state and there are no claims or actions pending against Tenant
which if decided against Tenant would materially and adversely affect Tenant’s
financial condition or Tenant’s ability to perform its obligations under the
Lease.


 


12.           The statements contained herein may
be relied upon by the Estoppel Parties.


 


13.           The undersigned is duly authorized to
execute this certificate.


 


-2-

















 


	
  Dated this ___________ day
  of December, 2003.

  	
   

  
	
   

  	
   

  
	 
	
  By:

  	
   

  
	 
	
   

  	
  Name:

  
	 
	
   

  	
  Title:

  
			



 


-3-

















 


EXHIBIT H


 


Form of Non-Imputation Affidavit


 


 


	
  State of New York

  	
  }

  
	
   

  	
  } ss:

  	
  December
  ___, 2003

  
	
  County of New York

  	
  }

  



 


 


WHEREAS,
The McGraw-Hill Companies, Inc. (“Seller”) and Rockefeller Group International
Inc. (“RGI”) are the owners of the shares of Rock-McGraw, Inc. (“RMI”), the
sole equity member of 1221 Avenue Holdings LLC, a Delaware limited liability
company (“Holdings”), the owner of the premises known as 1221 Avenue of the
Americas, New York, New York (the “Premises”), which is described in the
Certificate and Report of Title No. ________ issued by Lawyers Title Insurance
Company (the “Company”);


 


WHEREAS,
Green Hill Acquisition, LLC (“Purchaser”) has requested that the Company
include a non-imputation endorsement as part of the owner’s policy so that the
Company will not deny liability by virtue of the imputation of knowledge of the
Seller, RGI or RMI by operation of law to Purchaser;


 


NOW
THEREFORE, to induce the Company to issue the non-imputation endorsement,
Seller states that to Seller’s current actual knowledge, without any
independent investigation having been made, or any implied duty to investigate,
the matters set forth in Exhibit A attached hereto and made a part hereof are
true, correct and complete in all material respects.


 

















 


Seller will hold the Company
harmless from loss, claim or damage (other than consequential, indirect or
punitive damages) it sustains because of any statement made herein being false,
perjurious or fraudulent; provided, however, that this affidavit
is delivered on and subject to the condition that in no event shall Seller’s
liability hereunder, when taken together with any claims by Purchaser under the
Agreement of Sale dated December ___, 2003 between Seller and Purchaser, exceed
Ten Million Dollars ($10,000,000).


 


 


	
  THE MCGRAW-HILL COMPANIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


-2-

















 


EXHIBIT A TO AFFIDAVIT


 


[Attach Manager’s Certificate]


 

















 


EXHIBIT I


 


Pre-Closing Balance Sheet


 


[Attached]


 

















 


EXHIBIT J


 


Form of Restated Certificate of Incorporation


 

















 


EXHIBIT K


 


Form of Amended Bylaws


 

















 


EXHIBIT L


 


Form of Shareholders’ Agreement


 

















 


EXHIBIT M


 


Form of First Amendment to Management Agreement

















 


EXHIBIT N


 


Form of Third Amendment to RGI Lease


 

















 


EXHIBIT O


 


Form of REIT Qualification Opinion


 

















 


SCHEDULE 3.3(j)


 


Permitted Investments


 


Money Market Account


 

















 


SCHEDULE 4.1(a)


 


Interest Permitted Encumbrances


 


1.                                       Amended and
Restated Certificate of Incorporation of the Company dated as of May 14, 1969
and filed with the New York Secretary of State on May 19, 1969.


 


2.                                       By-Laws of the
Company.


 


3.                                       Basic Agreement
dated as of May 1, 1969 between Seller and RGI.


 

















 


                                                                              SCHEDULE
5.6


 


 


I.                                         Basic Company
Agreements


 


1.                                       Amended and
Restated Certificate of Incorporation of the Company dated as of May 14, 1969
and filed with the New York Secretary of State on May 19, 1969.


 


2.                                       By-Laws of the
Company.


 


3.                                       Basic Agreement
dated as of May 1, 1969 between Seller and Rockefeller Center, Inc.
(predecessor in interest to RGI).


 


4.             Agreement dated August 15, 1996 between Seller and RGI.


 


5.                                       Management
Agreement dated December 1, 1982 between the Company and RGI.


 


6.                                       All documents
entered into by the Company and/or Holdings in connection with the  E&P Distribution Borrowing.


 


II.                                     Defaults Under
Basic Company Agreements


 


None.

















 


                                                                             SCHEDULE
5.14


 


Environmental Matters


 


1.                                       There may be asbestos
containing materials located in the building which, to Seller’s knowledge, are
not friable and which, to Seller’s knowledge, may be managed in place under
existing Environmental Laws.


 

















 


                                                                           SCHEDULE
9.2(b)


 


Permitted Encumbrances


 


1.                                       Any state of facts
shown on a survey of the Property provided such state of facts do not render
title to the Property unmarketable;


 


2.                                       All laws,
ordinances, rules and regulations of any 
governmental authority, as the same now exist or may be hereafter
modified, supplemented or promulgated provided none of the foregoing are
violated by the use or condition of the Property;


 


3.                                       Right, lack of
right or restricted right of any owner of the Property to construct and/or
maintain (and the right of any governmental authority to require the removal
of) any vault or vaulted area, in or under the streets, sidewalks or other
areas abutting the Property, and any applicable licensing statute, ordinance
and regulation, the terms of any license pertaining thereto and the lien of
vault taxes not yet due and payable;


 


4.                                       All presently
existing and future liens of real estate taxes or assessments and water rates,
water meter charges, water frontage charges and sewer taxes, rents and charges,
if any;


 


5.                                       All violations
of laws, ordinances, orders, requirements or regulations of any governmental
authority, applicable to the Property whether or not noted in the records of or
issued by, any governmental authority, existing on the Closing Date other than
violations which Seller, as tenant under the McGraw-Hill Lease is obligated to
cure;


 


6.                                       Minor
variations between the tax lot lines and the description of the Property set
forth on Exhibit A-1, A-2 and A-3 attached hereto and made
a part hereof;


 


7.                                       All matters
identified in Schedule B-2 to Title Commitment Number LT030355 issued by
Lawyers Title Insurance Corporation and dated December ___, 2003 (1221 Avenue
of the Americas Property).


 


8.                                       All matters
identified in Schedule B-2 to Title Commitment Number LT030378 issued by
Lawyers Title Insurance Corporation and dated December 23, 2003 (151 West 48th
Street Property).


 

















 


9.                                       All matters
identified in Schedule B-2 to Title Commitment Number LT030377 issued by
Lawyers Title Insurance Corporation and dated December 23, 2003 (166 West 48th
Street Property).


 

















 


SCHEDULE 9.2(f)


 


Required Consents


 


None.