the Indemnification Agreement (if the Guarantors are not released
by Lender under the Environmental Indemnification and the Guaranty).
11.3.
IF ANY CONDITION CONTAINED IN SECTIONS 11.1 AND
11.2 IS NOT SATISFIED, THE PARTY ENTITLED TO THE SATISFACTION OF SUCH CONDITION
AS A CONDITION TO ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREUNDER SHALL HAVE AS ITS SOLE REMEDY HEREUNDER THE RIGHT TO ELECT TO (A)
WAIVE SUCH UNSATISFIED CONDITION WHEREUPON THE SALE OF THE MEMBERSHIP INTERESTS
SHALL CLOSE AS PROVIDED IN THIS AGREEMENT OR (B) TERMINATE THIS AGREEMENT. IN
THE EVENT SUCH PARTY ELECTS TO TERMINATE THIS AGREEMENT, THIS AGREEMENT SHALL BE
TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS, OBLIGATION OR
LIABILITIES HEREUNDER, EXCEPT (I) AS OTHERWISE EXPRESSLY
34
PROVIDED IN SECTIONS 10, 13 AND 18 AND EXCEPT (II) THAT ACQUIRER SHALL BE
ENTITLED TO A RETURN OF THE EARNEST MONEY (TOGETHER WITH ALL INTEREST ACCRUED
THEREON, IF ANY).
SECTION 12.
DOCUMENTS AND PAYMENTS TO BE
DELIVERED AT CLOSING.
12.1.
AT THE CLOSING, TRANSFERORS SHALL DELIVER THE
FOLLOWING TO ACQUIRER:
(A)
THE CERTIFICATE OF FORMATION OF THE COMPANY
IN THE FORM SET FORTH ON EXHIBIT W ATTACHED HERETO AND MADE A PART HEREOF DULY
EXECUTED BY AN AUTHORIZED PERSON AND DULY FILED WITH THE APPROPRIATE
GOVERNMENTAL AUTHORITY IN ITS STATE OF INCORPORATION;
(B)
THE LIMITED LIABILITY COMPANY
AGREEMENT/OPERATING AGREEMENT OF THE COMPANY IN THE FORM SET FORTH ON EXHIBIT C
ATTACHED HERETO AND MADE A PART HEREOF EXECUTED BY THE PARTNERSHIP AS ITS SOLE
MEMBER AND ALL OTHER DOCUMENTS NECESSARY TO EFFECT THE INTERIM TRANSACTIONS;
(C)
EVIDENCE THAT THE COMPANY IS AUTHORIZED TO
DO BUSINESS IN NEW YORK IF COMPANY IS ORGANIZED IN A JURISDICTION OTHER THAN NEW
YORK;
(D)
AN ASSIGNMENT AND ASSUMPTION OF THE GROUND
LEASE (THE "ASSIGNMENT AND ASSUMPTION OF GROUND LEASE") SUBSTANTIALLY IN THE
FORM SET FORTH ON EXHIBIT X ATTACHED HERETO AND MADE A PART HEREOF EXECUTED AND
ACKNOWLEDGED AND IN PROPER FORM FOR RECORDING BETWEEN PARTNERSHIP, AS ASSIGNOR,
AND THE COMPANY, AS ASSIGNEE, AND AN ORIGINAL COUNTERPART DULY EXECUTED AND
ACKNOWLEDGED SHALL BE DELIVERED TO THE TITLE COMPANY FOR RECORDING AND AN
ORIGINAL COUNTERPART DULY EXECUTED AND ACKNOWLEDGED SHALL BE DELIVERED TO THE
LESSOR UNDER THE GROUND LEASE IN THE MANNER PROVIDED IN THE GROUND LEASE;
(E)
A CERTIFIED OR OFFICIAL BANK CHECK TO THE
ORDER OF THE RECORDING OFFICER OF THE COUNTY IN WHICH THE ASSIGNMENT AND
ASSUMPTION OF GROUND LEASE IS TO BE RECORDED FOR THE AMOUNT OF THE TRANSFER TAX,
IF ANY, TO BE PAID IN ACCORDANCE WITH ARTICLE 31 OF THE TAX LAW OF THE STATE OF
NEW YORK.
AT TRANSFERORS' OPTION, ACQUIRER SHALL PAY ALL OF THE SAME AND SHALL
RECEIVE A CREDIT FOR SUCH AMOUNT ON ACCOUNT OF THE CASH PORTION OF THE
CONSIDERATION DUE AT CLOSING;
(F)
A CERTIFIED OR OFFICIAL BANK CHECK TO THE
ORDER OF THE FINANCE ADMINISTRATOR OF THE CITY OF NEW YORK FOR THE AMOUNT OF THE
REAL PROPERTY TRANSFER TAX , IF ANY, IMPOSED BY TITLE II OF CHAPTER