FOREGOING,
INCLUDING, WITHOUT LIMITATION, THE DELIVERY TO SUCH PARTY, PROMPTLY AFTER
REQUEST, OF ANY RELEVANT BOOKS AND RECORDS, INCLUDING RECEIPTED TAX BILLS AND
CANCELLED CHECKS USED IN PAYMENT OF SUCH TAXES, THE EXECUTION OF ANY AND ALL
CONSENTS OR OTHER DOCUMENTS, AND THE UNDERTAKING OF ANY ACT NECESSARY FOR THE
COLLECTION OF SUCH REFUND.
THE PROVISIONS OF THIS SECTION 4.7 SHALL SURVIVE THE
CLOSING WITHOUT REGARD TO THE LIMITATION SET FORTH IN SECTION 4.12 BELOW.
4.8.
THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANING IN THIS AGREEMENT: (I) SIX MADISON, L.P., A NEW YORK LIMITED
PARTNERSHIP; 625 PARTNERS, L.P., A NEW YORK LIMITED
12
PARTNERSHIP; SIX ASSOCIATES GP CO., LLC, A NEW YORK LIMITED LIABILITY COMPANY;
625 GP, L.P., A NEW YORK LIMITED PARTNERSHIP; AND 625 GP, INC., A NEW YORK
CORPORATION (EACH OF THE FIVE PRECEDING ENTITIES IS AN "INTERMEDIATE ENTITY";
AND COLLECTIVELY ARE THE "INTERMEDIATE ENTITIES") AND (II) ANY DISCLOSED OR
UNDISCLOSED OFFICER, DIRECTOR, EMPLOYEE, TRUSTEE, BENEFICIARY, SHAREHOLDER,
PARTNER, PRINCIPAL, MEMBER, MANAGER, PARENT, SUBSIDIARY OR OTHER AFFILIATE OF
TRANSFERORS, PARTNERSHIP AND THE INTERMEDIATE ENTITIES (ALL OF THE FOREGOING
(INCLUDING, WITHOUT LIMITATION, THE PARTNERSHIP AND THE INTERMEDIATE ENTITIES
THEMSELVES) ARE INDIVIDUALLY, A "TRANSFERORS' AFFILIATE" AND COLLECTIVELY,
"TRANSFERORS' AFFILIATES").
4.9.
IF ANY OF THE ITEMS SUBJECT TO APPORTIONMENT
UNDER THE FOREGOING PROVISIONS OF THIS SECTION 4 CANNOT BE APPORTIONED AT THE
CLOSING BECAUSE OF THE UNAVAILABILITY OF THE INFORMATION NECESSARY TO COMPUTE
SUCH APPORTIONMENT, OR IF ANY ERRORS OR OMISSIONS IN COMPUTING APPORTIONMENTS AT
THE CLOSING ARE DISCOVERED SUBSEQUENT THERETO, THEN SUCH ITEM SHALL BE
REAPPORTIONED AND SUCH ERRORS AND OMISSIONS CORRECTED AS SOON AS PRACTICABLE
AFTER THE CLOSING DATE AND THE PROPER PARTY REIMBURSED.
EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, ALL APPORTIONMENTS SHALL BE MADE IN ACCORDANCE WITH
THE "CUSTOMS IN RESPECT TO TITLE CLOSINGS" ADOPTED BY THE REAL ESTATE BOARD OF
NEW YORK, INC.
4.10.
OTHER THAN TENANT SECURITY DEPOSITS, ALL CASH, CASH
EQUIVALENTS, SECURITIES, BANK ACCOUNTS AND FUNDS, INCLUDING, WITHOUT LIMITATION,
ALL ESCROW ACCOUNTS HELD BY OR FOR THE BENEFIT OF THE LENDER PERTAINING TO THE
PROPERTY, MORTGAGE LOAN, PARTNERSHIP, THE INTERMEDIATE ENTITIES AND THE COMPANY
INCLUDING, WITHOUT LIMITATION MONIES DEPOSITED BY PARTNERSHIP WITH LENDER
PURSUANT TO THE COLLATERAL TRUST AGREEMENT, SECURITY AGREEMENT AND CONTROL
AGREEMENT (TAX ESCROW ACCOUNT), COLLATERAL TRUST AGREEMENT, SECURITY AGREEMENT
AND CONTROL AGREEMENT (REVLON RESERVE FUND), COLLATERAL TRUST AGREEMENT,
SECURITY AGREEMENT AND CONTROL AGREEMENT (ANTICIPATED TI FUND) AND COLLATERAL
TRUST AGREEMENT, SECURITY AGREEMENT AND CONTROL AGREEMENT (BASIC BUILDING WORK
FUND), EACH DATED AS OF OCTOBER 10, 2003, EACH AMONG PARTNERSHIP, LENDER AND
L.J. MELODY & COMPANY OF TEXAS, L.P. (COLLECTIVELY, THE "COLLATERAL TRUST
AGREEMENTS") (THE "LENDER'S ESCROWS") ARE NOT BEING SOLD PURSUANT TO THIS
AGREEMENT, NOR SHALL SAME BE CONTRIBUTED TO THE COMPANY.
IF AFTER THE CLOSING
THERE SHALL BE ANY CASH, CASH EQUIVALENTS, SECURITIES (OTHER THAN TENANT
SECURITY DEPOSITS) WHICH ARE HELD OR OWNED BY THE PARTNERSHIP, INTERMEDIATE
ENTITIES OR THE COMPANY AND HAVE NOT BEEN DISTRIBUTED TO OR CREDITED TO
TRANSFERORS IN ACCORDANCE WITH THE SECTION 4, ACQUIRER SHALL PROMPTLY