EXHIBIT 10.59
Settlement Agreement
dated December 30, 1999,
between
New York Skyline, Inc.
and
Empire State Building Company
SETTLEMENT AGREEMENT
This Agreement is entered into as of December 30, 1999 by and
between New York Skyline, Inc. ("Skyline"), a New York corporation with an
office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and Empire State Building Company
("ESBC"), a New York partnership with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx.
WHEREAS, the parties to this Agreement are parties in an action titled New
York Skyline, Inc. v. Empire State Building Company, et al., pending in the
Supreme Court of the State of New York, County of New York (Index No. 606541/97)
(the "Action"); and
WHEREAS, the parties to this Agreement each desire, in order to avoid the
further expense, inconvenience and burden of litigation, to settle their dispute
and dispose of the Action and the claims asserted therein upon and the terms and
conditions set forth below;
NOW THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties to this Agreement stipulate and agree as follows:
Simultaneously with the execution of this Agreement, the
parties to this Agreement shall execute a stipulation dismissing each and every
cause of action asserted by Skyline in the Action in the form annexed hereto as
Exhibit A (the "Stipulation"). ESBC will use reasonable efforts to have the
other parties to the Action execute the Stipulation. In the event that all of
the parties to the Action execute the Stipulation, ESBC shall promptly file the
fully executed stipulation with the clerk of the court. In the event that not
all of the parties to the action execute the Stipulation within thirty (30) days
of the execution of this Agreement, ESBC and Skyline shall make a motion to the
court seeking an order dismissing each and every cause of action asserted by
Skyline as against each of the parties to the Action who has executed the
Stipulation.
1. Simultaneously with the execution of this Agreement, Skyline shall
provide to Empire State Building Company ("ESBC") an executed release in the
form annexed hereto as Exhibit B. At the same time, Skyline shall provide to
ESBC executed release (the "Additional Releases") for Empire State Building,
Inc. ("ESB, Inc."), Empire State Building Associates ("ESBA"), Xxxx X. Xxxxxxx,
Xxxxxxx & Cyruli, f/k/a Xxxx X. Xxxxxxx & Associates (collectively, "Xxxxxxx"),
Helmsley-Spear, Inc. ("Helmsley-Spear"), Xxxxxxx X. Xxxx ) ("Tole"), Xxxxxx
Xxxxxx ("Aluska") and Xxxxx X. Xxxxxx ("Xxxxxx") (ESBC, Inc., ESBA, Xxxxxxx,
Helmsley-Spear, Tole, Aluska and Malkin are collectively the "Additional
Parties") in the forms collectively annexed hereto as Exhibit C. ESBC's counsel,
Duane, Morris & Heckscher LLP ("DMH"), shall hold each of the Additional
Releases in escrow until such time as Skyline receives a release described in
paragraph 3 below from an Additional Party. At such time, DMH shall provide the
Additional Release to the Additional Party who has provided Skyline with a
release. If Skyline does not receive such a release from an Additional Party
within thirty (30) days of the execution of this Agreement, then DMH shall
promptly return the Additional Release for that Additional Party to Skyline.
2. Simultaneously with the execution of this Agreement, ESBC shall
provide to Skyline an executed release in the form annexed hereto as Exhibit D.
ESBC shall use reasonable efforts to have ESB, Inc., ESBA, Xxxxxxx,
Helmsley-Spear, Tole, Aluska and Malkin provide to Skyline executed releases in
the forms collectively annexed hereto as Exhibit E within thirty (30) days of
thee execution of this Agreement.
3. Simultaneously with the execution of this Agreement, Skyline and
ESBC shall execute the Second Modification of License Agreement in the form
annexed hereto as Exhibit F.
4. Simultaneously with the execution of this Agreement, Skyline and
ESBC shall execute the Third Lease Modification Agreement to the Lease dated
February 266, 1993 in the form annexed hereto as Exhibit G.
5. On or before April 30, 2000, Skyline may exercise an option to
extend the lease dated April 14, 1994 in substantially the form annexed hereto
as Exhibit H. However, if Skyline decides not to exercise the option, it shall
notify ESBC of its decision not to extend the lease by March 31, 2000.
6. In consideration of Skyline dismissing all its alleged claims
against ESBC in connection with the Lease dated February 26, 1993, the Lease
Modification Agreement dated February 8, 1994, the Lease dated April 14, 1994,
the License Agreement dated February 26, 1993, and the License Modification
Agreement dated March 1996, ESBC expressly acknowledges that any and all claims
for rent and licensee fees previously alleged by ESBC to be owed by Skyline
(which claims are now released pursuant to the terms and conditions of Exhibit D
hereto) relate solely to the aforementioned agreements.
7. This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to the conflict of laws provisions thereof.
8. The parties to this Agreement agree to be responsible for their own
costs and attorneys' fees with regard to the Action.
9. This Agreement may not be waived, altered, amended or modified except by
an agreement in writing and signed by the parties to the Agreement.
10. The terms of this Agreement shall be binding on the parties to this
Agreement and their successors and assigns.
11. At and after the execution of this Agreement, the parties to this
Agreement shall execute such further documents and take such further actions as
are necessary or appropriate to effectuate the provisions of this Agreement and
the settlement provided for herein.
12. Other than as to any representations set forth herein, this Agreement
is without an admission of any liability of any party to any other party, and is
made solely to avoid the expense and inconvenience of further litigation. Each
of the parties to this Agreement represents that it is entering into and
executed this Agreement voluntarily, and no force, threat, duress, coercion,
fraud or improper means has been exerted upon them by any person with respect
thereto.
13. Except as otherwise required or provided herein or hereby, neither this
Agreement nor any of the terms hereof, nor any statements made herein, nor any
negotiations or proceedings in connection herewith, shall constitute or be
construed as or be deemed to be evidence of an admission on the part of any
party to this Agreement of any liability or wrongdoing whatsoever, of the truth
or untruth of any of the statements made or positions taken by any party with
respect to the Action; nor shall this Agreement, or any of the terms hereof, or
any statements made herein, or any negotiations or proceedings in connection
herewith, be offered or received in evidence or used in any proceedings against
the parties to this Agreement or used in any proceeding for any purpose
whatsoever except with respect to effectuation and enforcement of this Agreement
and the resolution of the Action.
14. The parties to this Agreement shall cause their respective officers,
directors, agents, servants, employees to abide by the terms of this Agreement.
15. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
Agreement.
16. If any provision of this Agreement or the application of all other
provisions shall not be affected thereby.
17. Whenever the text hereof requires, the use of the singular number shall
include the appropriate plural number.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of this 30th day of December 1999.
NEW YORK SKYLINE, INC.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: President/Chief
Executive Officer
EMPIRE STATE BUILDING COMPANY
By: Helmsley-Spear, Inc., Agent
By: /s/ Xxxx X. Xxxxxxx, Xx.
-------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
EXHIBIT A
CONTAINS:
STIPULATION OF DISCONTINUANCE
WITH PREJUDICE
EXHIBIT B
CONTAINS:
RELEASE OF CLAIM
AGAINST EMPIRE STATE BUILDING COMPANY
BY
NEW YORK SKYLINE, INC.
EXHIBIT C
CONTAINS:
RELEASE OF CLAIM
AGAINST OTHER DEFENDANTS
BY
NEW YORK SKYLINE, INC.
EXHIBIT D
CONTAINS:
RELEASE OF CLAIM
AGAINST NEW YORK SKYLINE, INC.
BY
EMPIRE STATE BUILDING COMPANY.
EXHIBIT E
CONTAINS:
RELEASE OF CLAIM
AGAINST NEW YORK SKYLINE, INC.
BY
OTHER DEFENDANTS.
EXHIBIT F
CONTAINS:
SECOND MODIFICATION
OF LICENSE AGREEMENT
BETWEEN
EMPIRE STATE BUILDING COMPANY
AND
NEW YORK SKYLINE, INC.
EXHIBIT G
CONTAINS:
THIRD AMENDMENT OF LEASE BETWEEN
EMPIRE STATE BUILDING COMPANY
AND
NEW YORK SKYLINE, INC.
CONCERNING OFFICES AT
000 XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000
EXHIBIT H
CONTAINS:
OPTION TO EXTEND LEASE
CONCERNING OFFICES AT
000 XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000
