EXHIBIT 10(l)
ASSIGNMENT AND ASSUMPTION OF FINANCING AND GUARANTEE AGREEMENT
--------------------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF FINANCING AND GUARANTEE AGREEMENT
(this "Assignment") is made and entered into as of this 1st day of June,
1995, by and between TAUBMAN YORK AVENUE ASSOCIATES, INC., a New York
corporation, having an address at 000 Xxxx Xxxx Xxxx Xxxx, Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000 ("Assignor"), and YORK AVENUE ADVISORS, INC., a New
York corporation, having an address at 000 Xxxx Xxxx Xxxx Xxxx, Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000 ("Assignee").
In consideration of the mutual promises and agreements contained in
this Assignment and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto.
Assignor and Assignee hereby agree as follows:
1. Assignor hereby transfers, conveys and assigns to Assignee all
of Assignor's right, title and interest in, to and under that certain
Financing and Guarantee Agreement, dated as of October 1,1987, among
Sotheby's Inc. a New York corporation ("Sotheby's"), York Avenue
Development, Inc. a New York corporation ("York"), and Assignor, as
amended by Letter Agreement, dated August 18, 1988, among Sotheby's, York,
and Assignor, (as amended, the "Financing and Guarantee Agreement") attached
hereto as Exhibit A and made a part hereof.
2. Assignee hereby accepts the transfer, conveyance and assignment
of all of Assignor's right, title and interest in, to and under the
Financing and Guarantee Agreement. In consideration thereof, Assignee
hereby (i) assumes all of the obligations and liabilities of Assignor under
the Financing and Guarantee Agreement, as well as all future liabilities
and obligations accruing under the Financing and Guarantee Agreement, from
and after the date
hereof, (ii) agrees to be bound by the terms and provisions of the
Financing and Guarantee Agreement, as if Assignee were an original party
thereto, (iii) agrees to timely perform all of the obligations of Assignor
under the Financing and Guarantee Agreement, and (iv) agrees to indemnify,
defend and hold Assignor harmless from and against any losses or damages
arising from or pertaining to Assignee's failure from and after the date
hereof to carry out its obligations and liabilities under the Financing and
Guarantee Agreement.
3. Assignor hereby represents and warrants to Assignee that
Assignor has not assigned or encumbered its interest in the Financing and
Guarantee Agreement prior to this Assignment.
4. Assignor and Assignee hereby agree to promptly execute any and
all further documentation that may hereafter be required in order to
effectuate the assignment and assumption set forth herein.
5. This Assignment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
6. This Assignment may be executed in two (2) or more counterparts,
all of which as so executed shall constitute one (1) Assignment, binding on
all of the parties hereto, notwithstanding that all the parties are not
signatory to the original or the same counterpart; provided, however, that
no provision of this Assignment shall become effective and binding unless
and until all parties hereto have duly executed this Assignment, at which
time this Assignment shall then become effective and binding as of the date
first above written.
-2-
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption of Financing and Guarantee Agreement as of the
date first above written.
TAUBMAN YORK AVENUE ASSOCIATES, INC.,
a New York corporation
By: /s/ A. Xxxxxx Xxxxxxx
-------------------------------
Its: Chairman of the Board
------------------------------
"Assignor"
YORK AVENUE ADVISORS, INC.,
a New York Corporation
By:/s/ A. Xxxxxx Xxxxxxx
--------------------------------
Its: Chairman of the Board
------------------------------
"Assignee"
EXHIBIT A
---------
FINANCING AND GUARANTEE AGREEMENT
---------------------------------
AGREEMENT, made as of the 1st day of October, 1987, among SOTHEBY'S,
INC., a Michigan corporation ("Sotheby's"), YORK AVENUE DEVELOPMENT, INC.
("York"), a New York corporation and a wholly-owned subsidiary of
Sotheby's, and TAUBMAN YORK AVENUE ASSOCIATES, INC., a New York
corporation, having as its shareholder(s), initially, A. Xxxxxx Xxxxxxx
("AAT") and, thereafter, at his election, one or more of the present
shareholders of Sotheby's Holdings, Inc. and such other persons and/or
entities as may be designated by AAT (such corporation, together with its
successors and assigns, is hereinafter referred to as "Taubman").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a Lease, dated July 25, 1979, between The
Xxxxxxxx Capital Company, Xxxxxxx X. Xxxxxxxx and Xxxxxxxx X. Xxxxxxxx
(collectively, "Xxxxxxxx") and Sotheby's, as amended to the date hereof
(the "Lease"), Sotheby's is the lessee of certain real property (the
"Property") located at 0000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, together with
a four (4) story building constructed thereon (the "Existing Building");
WHEREAS, York, at its sole cost and expense, presently desires to
develop the Property by constructing a new, mixed-use tower (the "New
Tower") over the Existing Building, and it is York's present intention that
the New Tower will contain both commercial and residential condominium
units (the "Project");
WHEREAS, when the Project is completed, it is presently intended that
York will retain fee ownership of a commercial condominium unit to be
composed of all or a portion of the area comprising the Existing Building
and the first floor of the New Tower (the "Commercial Area"), and the
Commercial Area shall be leased by York to Sotheby's,
pursuant to the terms of the Lease, as the same may hereafter be amended
from time to time;
WHEREAS, Sotheby's presently desires to make the Sotheby's
Improvements (as defined in Section 4.1) to the Commercial Area, as more
particularly described in this Agreement;
WHEREAS, to permit the development of the Project, York acquired from
Xxxxxxxx the rights (the "Purchase Rights") to purchase the fee interest to
the Property;
WHEREAS, as a condition to York's acquisition of the Purchase Rights,
Xxxxxxxx required certain of the obligations of York under the purchase
documents to be guaranteed (the "Purchase Guarantee") by a person
satisfactory to Xxxxxxxx;
WHEREAS, Sotheby's was willing to provide the Purchase Guarantee, but
Xxxxxxxx would not accept the Purchase Guarantee from Sotheby's unless
Xxxxxxxx was permitted to examine Sotheby's most recent financial
statements;
WHEREAS, since Sotheby's was not willing to deliver such financial
statements to Xxxxxxxx, Sotheby's requested AAT to personally provide the
Purchase Guarantee, and AAT agreed to do so;
WHEREAS, in partial consideration for AAT's providing the Purchase
Guarantee, Sotheby's and York provided AAT with a letter (the "Indemnity
Letter"), pursuant to which Sotheby's and York indemnified AAT from any and
all losses and/or damages incurred by AAT as a result of his execution and
delivery of the Purchase Guarantee;
WHEREAS, since Sotheby's is in the auction business and not in the
business of developing real estate, Sotheby's board of directors has determined
that it would not be in Sotheby's best interest to be at risk under any
construction loans, or otherwise, in connection with the construction and
development of the Project for any liabilities except (i) pre-development
costs ("Sotheby's Pre-Development Costs") in the amount of Two Million Four
Hundred Twelve Thousand Seven Hundred Seventy-One Dollars ($2,412,771),
(ii) all costs and expenses incurred by Sotheby's in connection with the
-2-
Sotheby's Improvements and (iii) as otherwise specifically provided in this
Agreement; and
WHEREAS, York is not of sufficient financial standing to accomplish
the intended development and has, therefore, requested Taubman to provide
financial backing as may be required to develop the Project, and Taubman
has agreed to do so in accordance with the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, Sotheby's, York and Taubman hereby agree as follows:
ARTICLE I
---------
SCOPE OF TAUBMAN'S OBLIGATIONS
------------------------------
Section 1.1. Subject to the terms and conditions of this Agreement,
-----------
Taubman (and the shareholders of Taubman, as required) shall
(a) provide the Purchase Guarantee;
(b) provide any guarantees of payment and/or of completion (the
"Construction Guarantees" that may be required by any construction lender
in connection with financing the construction and development of the
Project;
(c) provide any guarantees (the "Zoning Guarantees") that may be
required in connection with obtaining proper zoning or zoning bonuses for
the Project;
(d) provide any guarantees (the "Condominium Guarantees") that may be
required in connection with the conversion of the Property to condominium
ownership;
(e) provide any guarantees (the "Credit Guarantees") that may be
required in connection with any "credit enhancers" (including, without
limitation, letters of credit) that may be required or appropriate in
connection with financing the construction and development of the Project;
(f) loan to York all funds which are otherwise unavailable through,
by way of example and not of limitation, third-party financing, as may be
required in connection with the pre-development and construction phases of
the Project (including,
-3-
without limitation, funds to pay for the cost of the Cladding Work (as
defined in Section 3.2(a)), the First Floor Work (as defined in Section
3.2(a)) and the York Relocation Work (as defined in Section 4.1)), but not
including funds to pay for any fees, costs, expenses or other items which
are billed by, and/or attributable to the services provided by, the
Sotheby's Consultants (as defined in Section 4.3) in connection with the
construction of the Sotheby's Improvements, such loans (1) to be in such
amounts as may be determined by Taubman, (2) to be made in accordance with
the terms and conditions of the promissory note attached hereto as Exhibit
"A", (3) to be guaranteed in accordance with the terms of the non-recourse
guarantee attached hereto as Exhibit "B" (the "Non-Recourse Guarantee"),
and (4) to be secured in accordance with the terms of (i) the non-recourse
pledge agreement attached hereto as Exhibit "C" (the "Pledge Agreement"),
(ii) prior to the time York becomes the fee owner of the Property, the
collateral assignment of contract rights (security agreement) attached
hereto as Exhibit "D" (the "Security Agreement"), and (iii) after the time
York becomes the fee owner of the Property, the fee mortgage attached
hereto as Exhibit "E" (the "Mortgage"); and
(g) provide consultation and advice to York in connection with the
negotiation of the York Development Documents (as defined in Section
5.1(e)).
Section 1.2. This Agreement shall not be deemed to create, as
-----------
between Sotheby's (and York) and Taubman, the relationship of employer-
employee, agency, joint venture or partnership. Neither Sotheby's (and
York) nor Taubman by virtue of this Agreement shall have the right or
authority to act for or to bind the other in any way or to sign the name of
the other or to represent that the other is in any way responsible for the
acts or omissions of the other.
-4-
ARTICLE II
----------
TAUBMAN'S FEE
-------------
Section 2.1. (a) For the obligations to be undertaken by Taubman
-----------
pursuant to this Agreement, York shall pay Taubman a fee equal to (i)
ninety percent (90%) of the first Fifteen Million Dollars ($15,000,000) of
Project Profits (as defined in, or determined in accordance with, Section
2.l(b)) and (ii) seventy-five percent (75%) of any Project Profits in
excess of Fifteen Million Dollars ($15,000,000). Subject to the provisions
of Section 3.5, such fee shall be paid in such manner and at such time as
may be determined by Taubman.
(b) For the purpose of this Agreement, the term "Project
Profits" means all of the Property Profits or the Residential Units Profits
(each as defined in the Exchange Agreement, dated October 27, 1986, between
Xxxxxxxx and York (the "Exchange Agreement")), as the case may be, not paid
to Xxxxxxxx thereunder, and, if for any reason the Exchange Agreement is
not in effect, the term "Project Profits" shall be determined by the
Project accountants (who shall be selected by Taubman) based upon the
definitions set forth in the Exchange Agreement.
Section 2.2. (a) Any and all fees, costs, expenses or other items
-----------
which are billed by, and/or attributable to the services provided by, the
York Consultants (as defined in' Section 5.l(f)) in connection with the
construction and development of the Project shall be deemed to be costs of
the Project in determining Project Profits.
(b) Any and all fees, costs, expenses or other items which are
billed by, and/or attributable to the services provided by, the Sotheby's
Consultants in connection with the construction of the Sotheby's
Improvements shall be the direct obligations of Sotheby's, and shall not be
obligations of Taubman and/or York.
Section 2.3. Any and all fees, costs and expenses payable for any
-----------
"credit enhancers" (including, without limitation, any letters of credit)
shall be deemed to be costs of the Project in determining Project Profits.
-5-
ARTICLE III
-----------
THE PROJECT
-----------
Section 3.1. All decisions with respect to the Project, including,
-----------
without limitation, the decision whether or not to construct the Project,
shall be solely within the control of Taubman, and, except as otherwise
provided in this Agreement, Taubman shall have no liability to Sotheby's or
York (or any other person) if construction of the Project is not commenced
or any option relating to the Purchase Rights is not exercised; provided,
however, if construction of the Project is not commenced on or before
September 30, 1997, this Agreement shall terminate and, except for
liabilities arising hereunder prior to October 1, 1997, no party shall have
any claim against any other party under this Agreement.
Section 3.2. (a) Subject to the provisions of this Agreement with
-----------
respect to Taubman's rights relating to the development of the Project
(including, without limitation, Sections 3.1, 5.1 and 6.1), York, at its
sole cost and expense, shall be responsible for constructing and developing
the Project, including, without limitation (i) re-cladding the exterior of
the Existing Building and cladding the exterior of the first floor of the
New Tower (the "Cladding Work"), (ii) constructing the shell of the first
floor of the New Tower (the "First Floor Work"), and (iii) performing the
York Relocation Work.
(b) Sotheby's shall not be required to pay for any costs
relating to the Project including, without limitation, the cost incurred by
York for the (i) Cladding Work, (ii) the First Floor Work, and (iii) the
York Relocation Work.
Section 3.3. Sotheby's shall at all times be entitled to occupy the
-----------
Commercial Area.
Section 3.4. If York fails to perform or cause to be performed any
-----------
of its duties or obligations under this Agreement, Taubman may at any time
notify York of the specific failure(s) to comply with this Agreement. If
such failure(s) are not corrected
-6-
immediately after receipt of such notice, in addition to any other rights
and remedies provided by law, Taubman shall have the right, but not the
obligation, to correct such failure(s) and to assume the responsibility for
performing all of such duties and obligations. In order to effectuate any
such correction of such failure(s), Taubman shall have the right and
easement to enter upon the Property to perform any of such duties and
obligations, such right and easement to be the same as that granted under
Section 8.3.
Section 3.5. (a) Available Cash (as defined in Section 3.5(b)) from
-----------
the Project shall be distributed by York, first, to Sotheby's and Taubman
until (x) Sotheby's Pro-Development Costs and (y) all loans made by Taubman
to York, together with interest thereon to the date of distribution, have
been repaid in full distributions to Taubman and Sotheby's pursuant hereto
being made in the proportion that the then outstanding balance of Sotheby's
Pro-Development Costs or Taubman's loans, as the case may be, bears to the
then outstanding balance of (A) Sotheby's Pre-Development Costs plus (B)
Taubman's loans and, then, in payment of Taubman's fee, as provided in
Section 2.1.
(b) "Available Cash" shall mean (1) cash from the sale or lease
of residential condominium units and, at Taubman's direction, excess
proceeds from any financing(s), less (2) the following items relating
solely to the Project: the aggregate of the reasonable reserves established
by Taubman for working capital needs, payments to Xxxxxxxx under the
Exchange Agreement, real property taxes, repayment of any debt, selling
expenses and capital improvements.
Section 3.6. York shall maintain at such place or places as it may
-----------
designate, complete and accurate books of account and records relating to
the Project, showing costs, expenditures, receipts, profits and losses and
shall provide for such other matters and information as Taubman deems
necessary, together with copies of all York Development Documents.
-7-
Section 3.7. Sotheby's shall pay all real estate taxes and
-----------
assessments attributable to the Commercial Area and the common area
maintenance costs allocated to the Commercial Area.
Section 3.8. For the purpose of this Agreement, the term "Project"
-----------
shall not include the Sotheby's Improvements.
ARTICLE IV
----------
SOTHEBY'S IMPROVEMENTS
----------------------
Section 4.1. For the purpose of this Agreement, the term "Sotheby's
-----------
Improvements" means (a) all interior alterations to the Commercial Area,
and (B) the relocation of the main entrance to the Existing Building;
provided, however, with respect to such relocation, the term "Sotheby's
Improvements" shall not include (1) the construction of the new entrance,
including the fenestrations where such entrance is to be located, and (2)
the canopy above such entrance (items (1) and (2) being referred to herein
as the "York Relocation Work").
Section 4.2. (a) Except as provided in Section 4.2(b), all
-----------
decisions in connection with the planning, design, development,
construction and installation of the Sotheby's Improvements shall be solely
within the control of Sotheby's, and Sotheby's shall be solely responsible
for the cost of the Sotheby's Improvements.
(b) Taubman shall have the right to approve all plans and
specifications (and all changes thereto) relating to the relocation of the
main entrance to the Existing Building, such approval not to be
unreasonably withheld or delayed (it being understood and agreed that
Taubman shall not be responsible for any defects in such plans or
specifications or in the improvements constructed in accordance therewith).
Section 4.3. Sotheby's shall have the right (without Taubman's
-----------
approval) to select and retain independent architects, engineers and
consultants (the "Sotheby's Consultants") who shall have the
responsibilities delegated to them by Sotheby's.
-8-
Section 4.4. York shall keep in full force and effect, and shall
-----------
not, without the prior written consent of Taubman, amend, modify, or
otherwise alter the terms of, that certain Project Services Agreement,
dated November 8, 1985, between Sotheby's and The Taubman Company, Inc.
ARTICLE V
---------
CONDITIONS PRECEDENT TO TAUBMAN'S OBLIGATIONS
---------------------------------------------
Section 5.1. Taubman shall not be obligated (i) to provide the
-----------
Construction Guarantees, the Zoning Guarantees, the Condominium Guarantees
and/or the Credit Guarantees or (ii) to loan any funds to York unless each
of the following conditions have been satisfied prior to the time Taubman
is to provide any of such items (provided, however, Taubman shall have the
right to waive any one or more of such conditions, which waiver to be
evidenced by a signed writing):
(a) Taubman shall have approved the construction lender(s) in
connection with financing the construction and development of the
Project and the terms and conditions of such financing;
(b) York shall have acquired the fee title to the Property, and
Taubman and its counsel shall have approved the form and
substance of all agreements, documents and other instruments
executed in connection with such acquisition;
(c) the deed(s) executed by Xxxxxxxx, in form and content acceptable
to Taubman and its counsel, vesting fee title to the Property in
York shall have been properly recorded in New York County;
(d) the Property shall be properly zoned for the intended use,
purpose and scope of the Project;
(e) Taubman and its counsel shall have approved the form and
substance of all documents, agreements and other instruments
(including, without limitation, loan agreements, mortgages,
notes, letters of credit and guarantees)
-9-
executed by any party in connection with the development,
construction or financing of the Project, the obtaining of proper
zoning for the Project, the conversion of the Property to
condominium ownership, the sale of residential and commercial
condominium units at the Property and/or the items referred to in
the preamble of this Section 5.1 (such documents, agreements and
other instruments are collectively referred to as the "York
Development Documents");
(f) Taubman shall have approved all contractors, sub-contractors,
architects, engineers and other third-party consultants
(collectively, the "York Consultants") employed or to be employed
by York in connection with the development of the Project and,
without limiting the generality of paragraph (e) of this Section
5.1, Taubman and its counsel shall have approved the form and
substance of all agreements or contracts with respect to the York
Consultants;
(g) Taubman shall have approved all plans and specifications (as
approved, the "York Plans") with respect to the construction and
development of the Project (it being understood and agreed that
Taubman shall not be responsible for any defects in the York
Plans, or in the building or other improvements constructed or
made in accordance therewith);
(h) York shall have obtained and shall have delivered to Taubman
evidence satisfactory to Taubman that York has good and
marketable fee title to the Property, free of any encumbrances or
other exceptions to title other than those approved by Taubman,
which evidence may include, at Taubman's request, a copy of an
owner's title insurance policy approved by the New York State
Insurance Department, in form and substance reasonably
satisfactory to Taubman and issued by a title insurance company
reasonably acceptable to Taubman and evidence of payment of the
premiums therefor;
-10-
(i) York shall have obtained and shall have delivered to Taubman a
copy of a11 policies of insurance which Taubman reasonably
requires York to maintain in connection with the development of
the Project, each in form and substance reasonably satisfactory
to Taubman and issued by a company or companies reasonably
acceptable to Taubman, and Taubman shall have received evidence
of payment of the premiums therefor;
(j) York shall have furnished Taubman with performance and labor and
material payment bonds, in the full amount of the cost of
construction of the Project, with a surety company authorized to
do business in the State of New York and reasonably acceptable to
Taubman;
(k) all representations and warranties contained in the York
Development Documents shall be true (i) on and as of the date the
York Development Documents were executed and (ii) on and as of
the date Taubman provides the guarantees and/or loans funds to
York, and there shall exist no condition, event or act which
would constitute an event of default under the York Development
Documents or which would, with notice or lapse of time, or both,
constitute such an event of default;
(l) Taubman shall have approved a budget with respect to the
construction and development of the Project, which budget shall
break down the project development costs in such detail as
reasonably requested by Taubman;
(m) York shall have consulted with Taubman with respect to, and
Taubman shall have approved (i) a plan for the marketing and sale
of commercial and residential condominium units at the Property,
(ii) the broker(s) for such marketing and sale, and their fees,
and (iii) the selling prices and the other terms of sale of such
units; and
(n) Taubman shall have approved all other documents reasonably
required by Taubman in connection with the development and
financing of the Project
-11-
and the marketing and sale of commercial and/or residential
condominium units at the Property.
ARTICLE VI
----------
COVENANTS OF YORK
-----------------
Section 6.1. Until such time as the Project is completed, all loans
-----------
by Taubman to York have been repaid in full, all guarantees provided by
Taubman under this Agreement have been terminated, and Taubman has received
its entire fee under this Agreement, York hereby covenants with Taubman
that:
(a) all construction work performed by, or caused to be
performed by, York on the Property shall be diligently and
expeditiously performed to completion in accordance with the
York Plans in a first-class workmanlike manner, in
accordance with good construction practices, all applicable
laws, ordinances, rules and regulations and insurance
requirements and otherwise in accordance with the terms of
the York Development Documents and this Agreement;
(b) York will perform all of its obligations under the York
Development Documents in accordance with the terms thereof
and shall not, without the prior written consent of Taubman,
amend, alter, extend or otherwise modify the terms of any
York Development Document or any other document or item
approved by Taubman under this Agreement (including, without
limitation, any budget or sales and marketing plan);
(c) York shall not make any changes in the York Plans without
Taubman's prior written approval;
(d) York shall require the York Consultants to perform their
work in accordance with the terms of their respective
contracts and agreements and shall not, without Taubman's
prior written approval, amend, modify or alter the
responsibilities of any of the York Consultants under any
such contract or agreement;
-12-
(e) York shall maintain all insurance policies required by
Taubman under Section 5.1(i), and any additional policies of
insurance reasonably required by Taubman, each in form and
substance reasonably satisfactory to Taubman and issued by a
company or companies reasonably acceptable to Taubman, in
amounts reasonably acceptable to Taubman, and shall deliver
to Taubman evidence of payment of premiums therefor;
(f) York shall deliver to Taubman, for its approval, all
documents and instruments required to be executed and/or
filed in connection with the creation of condominium units
in the Project;
(g) York shall deliver to Taubman, for its approval, all
documents and instruments required to be executed and/or
filed in connection with obtaining proper zoning for the
Property;
(h) York shall deliver to Taubman copies of all documents,
instruments, statements, or notices required to be or
otherwise delivered pursuant to the York Development
Documents;
(i) York shall promptly pay and discharge all demands for
payment relating to the construction of the Project and take
all other steps to avoid the assertion of claims against the
Property or the improvements constructed thereon, and in the
event any lien is filed against the Property or the
improvements located thereon, York shall, at Taubman's
request, discharge such lien within the later of (i) sixty
(60) days after the filing thereof and (ii) five (5) days
after such request;
(j) Taubman shall have the right to enter the Property and
inspect the improvements constructed thereon and the work of
construction at all times and examine the books, records,
accounting data and other documents of York pertaining to
construction of the Project, and make extracts and copies
-13-
of the same, and the books, records, accounting data and
documents of York shall be available to Taubman at York's
principal place of business during normal business hours;
(k) York shall not, without the prior written consent of Taubman
(i) make any expenditure not provided for in a budget
approved by Taubman or (ii) market or sell the commercial
and residential condominium units at the Property other than
in accordance with a marketing and sales plan and a
condominium offering plan approved by Taubman;
(l) York shall not, without the prior written consent of
Taubman, do any act and/or execute any document (including,
without limitation, exercising any right to become the fee
owner of the Property, changing the selling prices of the
commercial and residential condominium units at the Property
or entering into any agreement or arrangement with any
construction lender(s), the York Consultants or broker(s))
that would have required Taubman's approval or consent if
the performance of such act and/or the execution of such
document would have required Taubman's approval or consent
under Section 5.1;
(m) York shall not engage in any business other than the
business of acquiring the fee interest from Xxxxxxxx,
developing the Project, leasing the Commercial Area to
Sotheby's, marketing and selling residential and commercial
condominium units and taking such other action as shall be
necessary or desirable to perform all obligations required
to be performed by York pursuant to the terms of this
Agreement, and York shall preserve its corporate existence
and good standing and all its material rights, privileges
and franchises necessary and desirable in the conduct of its
business;
(n) York shall pay and discharge (i) all taxes, assessments and
government charges or levies imposed on it or its income or
profits or any of its
-14-
properties prior to the date on which penalties attach
thereto and (ii) all lawful claims which, if unpaid, might
cause a lien or charge to be created against any of its
properties, except any such tax, assessment, charge or levy
the payment of which is being contested in good faith by
appropriate proceedings and for which it has made adequate
reserves on its books;
(o) York shall comply with the requirements of all applicable
laws, regulations and orders of any governmental authority,
a violation of which could affect the Project or York's
business or financial condition, except any such law,
regulation or order which is being contested by it in good
faith by appropriate proceedings; provided however, that
such contest will not cause harm to York or the Project if
York shall fail to prevail in such contest;
(p) York shall furnish to Taubman, promptly after knowledge
thereof shall have come to the attention of York, written
notice of any threatened or pending litigation, arbitral or
governmental or administrative proceeding against York which
could adversely affect the Project or York's business or
properties;
(q) York shall, upon the request of Taubman, give any
representative of Taubman access during normal business
hours to, and permit such representative to inspect, all
properties belonging to it and permit such representative,
to examine, copy and make extracts from, all books, records
and documents in its possession relating to its affairs, as
such representative may reasonably require;
(r) York shall obtain (and, once obtained, maintain) all
authorizations, licenses, consents or approvals as shall now
or hereafter be necessary or desirable in the opinion of
Taubman under applicable law or regulation in connection
with the making and performance of this Agreement and with
respect to the Project, and will promptly furnish copies
thereof to Taubman;
-15-
(s) York will not create or permit to exist any lien or
encumbrance (including any charge upon assets purchased
under conditional sales or other title retention agreements)
upon any of its assets whether now owned or hereafter
acquired; provided, however, that this restriction shall not
apply to nor prevent the creation or existence of (i) liens
in favor of Taubman, (ii) liens for taxes not yet due or
which are being contested in good faith by appropriate
proceedings, and (iii) liens referred to in Schedule "A"
hereto;
(t) York shall not make or have outstanding any loan or advance
to, or own or acquire any stock or securities of, or any
interest in, or make any capital contribution to, any person
(other than Taubman);
(u) York shall not merge or consolidate with, or liquidate into,
any other corporation;
(v) York will not make capital expenditures, except as permitted
in this Agreement;
(w) York shall not create, incur, assume or suffer to exist any
indebtedness, except as permitted in this Agreement;
(x) York shall not assume, guarantee, endorse, or otherwise
become liable for the obligation of any person (other than
Taubman), whether by guarantee, letter of credit, pledge,
security agreements or otherwise, except by endorsement of
negotiable instruments for deposit or collection in the
ordinary course of business and except as permitted in this
Agreement;
(y) York shall not sell, lease, transfer or otherwise dispose of
any of its assets (including, without limitation, assets
held by it as lessee and shares of stock), except as
permitted under this Agreement; and
-16-
(z) except for amounts equal to base rental payments received
from Sotheby's under the Lease (and only after receipt by
York of such base rental payments), York shall not pay or
declare any dividend on any class of its stock, or make any
other distribution on account of any class of its stock, or
redeem, purchase or otherwise acquire, directly or
indirectly, any shares of its stock.
ARTICLE VII
-----------
INDEMNITIES AND RELEASES
------------------------
Section 7.1. (a) Sotheby's shall defend, indemnify and hold
-----------
harmless Taubman from, against and in respect of any and all claims,
demands, actions, suits or causes of action resulting from, and pay all
costs, expenses, losses or damages sustained, incurred or resulting from,
(i) any non-compliance or breach by Sotheby's of any provision contained in
this Agreement and (ii) the construction of the Sotheby's Improvements.
(b) York shall defend Taubman against any and all claims,
demands, actions, suits or proceedings arising out of or in connection
with, and indemnify and hold harmless Taubman from any and all liabilities,
damages, losses and judgments arising (i) from any non-compliance or breach
by York of any provision contained in this Agreement, (ii) the construction
of the Project and (iii) under or in connection with, the Construction
Guarantees, the Zoning Guarantees, the Condominium Guarantees and/or the
Credit Guarantees. York shall also pay and reimburse Taubman in respect of
any and all costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by Taubman under such
guarantees.
(c) Taubman shall defend, Indemnify and hold harmless Sotheby's
from, against and in respect of any and all claims, demands, actions, suits
or causes of action resulting from, and pay all costs, expenses, losses or
damages sustained, incurred or resulting from, (i) any non-compliance or
breach by Taubman of any provision contained in this Agreement and (ii) the
construction of the Project; provided, however, (A) in no
-17-
event shall Taubman be liable to Sotheby's under this Section 7.1(c) or any
other provision of this Agreement for consequential damages (including,
without limitation, losses to works of art or other objects auctioned by
Sotheby's or loss of profits) and (B) all liabilities of Taubman hereunder
shall be deemed to be costs of the Project for the purpose of determining
the Project Profits.
(d) Each party shall look first to any insurance in its favor
before making any claim against any other party, and, to the extent
possible without additional cost, each party shall obtain, for each policy
of such insurance, provisions permitting waiver of any claim against any
other party for loss or damage within the scope of the insurance, and each
party, to such extent permitted, for itself and its insurers waives all
such insured claims against any other party.
Section 7.2. Sotheby's is hereby released from any and all
-----------
obligations under the Indemnity Letter.
Section 7.3. York's obligations under this Agreement shall be
-----------
guaranteed by the Non-Recourse Guarantee and secured by the Pledge
Agreement, the Security Agreement and the Mortgage.
ARTICLE VIII
------------
EASEMENTS
---------
Section 8.1. York shall grant to Sotheby's, and Sotheby's shall grant
-----------
to York (for the benefit of York and the owners of residential condominium
units in the Project), such vehicular and pedestrian easements as may be
required in connection with the Project, in Taubman's reasonable judgment,
for the purposes of (i) vehicular ingress-and egress, (ii) parking of motor
vehicles, (iii) unobstructed vehicular passage and circulation, (iv)
pedestrian ingress and egress and (v) unobstructed pedestrian passage and
circulation.
Section 8.2. (a) York shall grant to Sotheby's, and Sotheby's shall
-----------
grant to York (for the benefit of York and the owners of residential
condominium units in the Project), such utility easements as may be
required in connection with the Project, in Taubman's
-18-
judgment, including, without limitation, for the purpose of connecting to
and using utility facilities, and constructing, installing, maintaining,
repairing, enlarging, replacing, relocating and/or removing any such
connections, provided that no such use and/or connection shall be utilized
or allowed in a manner which unreasonably burdens the grantor's premises,
results in interference with the use and/or operations of the improvements
thereon, unreasonably inconveniences the occupants thereof or adversely
affects the fire insurance rating standard of such improvements.
(b) York shall, if requested by Taubman, dedicate and/or convey
to the City of New York or any other governmental entity, or to any public
utility company providing utility service to the Project, all or any
portion of the utility facilities for the purposes for which they are
intended, provided that the service provided to Sotheby's by the utility
facilities to be dedicated shall not be diminished or adversely affected in
any way. If, in connection with the dedication and/or conveyance of the
utility facilities, York needs or desires Sotheby's to join in the
execution of any applications, deeds or other documents, Sotheby's shall do
so, upon any request therefor. Upon any dedication and/or conveyance of the
utility facilities (or any portion thereof), the easement granted under
Section 8.2(a) shall terminate (to the extent of the utility facilities so
dedicated or conveyed) without the payment of any consideration to the
grantee thereof or any other persons on account of the termination of such
easement. In the event that any such dedication and/or conveyance of the
utility facilities (or any portion thereof) is reversed or abandoned, the
easement rights set forth in Section 8.2(a) shall automatically be revived.
Section 8.3. York shall grant to Sotheby's, and Sotheby's shall grant
-----------
to York, such construction easements as may be required in connection with
the Project, in Taubman's reasonable Judgment, for purposes of, in the case
of York, constructing the Project and, in the case of Sotheby's,
constructing the Sotheby's Improvements.
Section 8.4. Nothing contained in this Article VIII including,
-----------
without limitation, the grant of any or all easements under this Article
VIII, shall be deemed to constitute a
-19-
dedication of any property, or any portion or portions thereof, to any
governmental body or agency or to the general public, or be construed to
create any rights in or for the benefit of any space lessee of any part of
the Project (other than Sotheby's), it being the intention of the parties
that this Agreement shall be strictly limited to and for the purpose set
forth in this Agreement. The parties may, however, extend the benefit of
the easements granted under this Article VIII to occupants of the Project,
but such grant shall be subject to the provisions of this Agreement.
ARTICLE IX
----------
COOPERATION; ETC.
-----------------
Section 9.1. Taubman, York and Sotheby's shall cooperate fully with
-----------
one another with respect to the development, financing and construction of
the Project and the construction of the Sotheby's Improvements, and each
party shall use reasonable efforts to cause its architects, engineers,
contractors and subcontractors to cooperate and coordinate with the other
party's architects, engineers, contractors and subcontractors, to the
extent reasonably practicable to achieve the completion of the Project and
the objectives and commitments set forth in this Agreement. Each party
shall make reasonable efforts to perform its construction so as not to (i)
cause any unnecessary increase in the cost of construction to the other
parties, and (ii) unreasonably interfere with the construction of the other
parties and/or any other construction being performed on the Property or
any part thereof, and each party shall at all times take any and all safety
measures reasonably required to protect the other parties and all occupants
from injury or damage caused by or resulting from the performance of its
construction. Taubman shall give Sotheby's, not less than ninety (90) days
prior notice of the commencement of construction of the Project, and
Taubman and York shall use their respective best efforts to assure that the
construction of the Project shall be performed in such manner so as to
minimize any interference with Sotheby's operations. During the period of
construction of the Project, Taubman and York shall use their respective
best
-20-
efforts (a) to keep Sotheby's regularly and fully informed with respect to
construction schedules (and updates thereto) and the progress of the
construction work, and (b) to give advance notice to Sotheby's of any
deliveries or unusual circumstances that might adversely affect Sotheby's
operations.
Section 9.2. Without limiting the generality of Section 9.1,
-----------
Sotheby's and York shall, within ten (10) days after a request by Taubman
therefor, join in, execute, acknowledge, and authorize the timely delivery
and/or recordation of any and all documents, declarations, deed
restrictions and other instruments which are required under the zoning
resolution of the City of New York (the "ZRCNY") and other applicable land
use, building and environmental laws, rules and regulations to apply for,
and to obtain from the governmental agency with jurisdiction thereover
approval of, any actions, permits, licenses, consents and authorizations
for construction of the Project, including, without limitation, a change in
the zoning map applicable to the Property, a variance from or a special
permit or authorization pursuant to the ZRCNY, and excavation and
foundation and building permits from the New York City Department of
Buildings.
Section 9.3. Without limiting the generality of Section 9.1, in
-----------
connection with the conversion and/or development of all or a portion of
the Property to condominium and/or cooperative ownership, Sotheby's and
York shall, within ten (10) days after a request by Taubman therefor, join
in, execute, acknowledge, and authorize the timely delivery and/or
recordation of any and all documents and instruments (including, without
limitation, offering plans, declarations, certifications and affidavits and
documents relating to the maintenance and repair of common areas) that may
be required and/or appropriate in connection with the creation of
condominium and/or cooperative units or required under any applicable
statutes or regulations relating to such conversion and/or development of
the Property. Taubman, in its sole discretion, shall determine the initial
number of members Sotheby's and/or York shall have on the condominium
association board of directors.
-21-
Section 9.4. Without limiting the generality of Section 9.1,
-----------
Sotheby's shall, within ten (10) days after a request therefor by Taubman,
execute, acknowledge, and authorize the timely delivery and/or recordation
of any and all documents and instruments that may be required to evidence
the subordination of the Lease (a) to any Declaration of Condominium filed
in respect of the Project and (b) to the lien of any mortgage(s) in favor
of any lender(s) in connection with financing the development of the
Project; provided, however, Sotheby's obligation under clause (b) of this
Section 9.4 in respect of such documents and instruments shall be
conditioned upon the receipt by Sotheby's of the standard form non-
disturbance agreement of such lender(s).
Section 9.5. Without limiting the generality of Section 9.1, at
-----------
Taubman's request, York shall (i) exercise any and all of its rights to
become the fee owner of the Property and (ii) enter into the York
Development Documents.
Section 9.6. Except for Sotheby's in respect of the Sotheby's
-----------
Improvements, nothing contained in this Article IX shall be deemed to give
Sotheby's or York the right to consent to or approve any plans and
specifications, construction schedules, marketing plans, financing
arrangements and cost estimates in connection with the development of the
Project or any matters relating thereto.
Section 9.7. Without the prior written consent of Taubman, neither
-----------
Sotheby's nor York shall (i) submit any design plans or other plans or any
other documents relating to the Project to any person, or (ii) make any
commitments to such person with respect thereto.
Section 9.8. Taubman will (a) subordinate the Mortgage to the lien
-----------
of any construction lender, or discharge the Mortgage, to the extent
required by such lender and (b) subordinate the Mortgage to any Declaration
of Condominium filed in respect of the Project.
Section 9.9. After York becomes the fee owner of the Property, York
-----------
and Sotheby's shall attend the Lease (a) in any manner as may reasonably be
required by any
-22-
construction lender, and (b) to provide for annual base rental payments
which shall be One Dollar ($1.00) provided that the Lease continues to be
in all other respects a "triple net" lease. Sotheby's shall have the right
to purchase the commercial condominium unit referred to in the third
WHEREAS clause for One Dollar ($1.00).
ARTICLE X
---------
MISCELLANEOUS
-------------
Section 10.1. All notices, requests, consents and other
------------
communications which are required or permitted by this Agreement shall be
in writing and shall either be delivered in person or sent by ordinary
mail, postage pre-paid, and addressed as follows:
If to Sotheby's: Sotheby's Holdings, Inc.
c/o Sotheby's, Inc.
0000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
If to York: York Avenue Development, Inc.
0000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
If to Taubman: Taubman York Avenue Associates, Inc.
000 Xxxx Xxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: A. Xxxxxx Xxxxxxx
With a copy to: Xxxxxxx X. Xxxx, Esq.
Miro Miro & Weiner
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
or to such other address as may be designated from time to time by any
party hereto by written notice pursuant to this Section 10.1. Notices,
requests, consents, and other communications shall be deemed to be given
when delivered, if personally delivered, or three (3) days after mailing,
if mailed in accordance with the provisions of this Section 10.1.
Section 10.2. (a) Neither Sotheby's nor York shall assign or
------------
transfer, in any manner (through the transfer of stock, or otherwise), this
Agreement or any of its rights or duties
-23-
hereunder or any interest herein, by operation of law or otherwise, without
the prior written consent of Taubman.
(b) Taubman shall have the right to assign or transfer, in any
manner, this Agreement or any of its rights or duties hereunder or any
interest herein, without the prior written consent of either Sotheby's or
York.
Section 10.3. This Agreement may not be changed, modified, altered or
------------
amended except by a writing executed by each of the parties hereto.
Section 10.4. As used herein, the singular shall include the plural
------------
and vice versa, and any gender shall include all genders as the context may
require.
Section 10.5. This Agreement shall be governed by and construed in
------------
accordance with the laws of the State of New York.
Section 10.6. Subject to the provisions of Section 10.2, the
------------
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
Section 10.7. The failure of any party hereto to enforce, or the
------------
delay by any party in enforcing, any of its rights hereunder shall not be
deemed a continuing waiver or a modification hereof, and each party may,
within the time provided by applicable law, commence appropriate legal
proceedings to enforce any and all of such rights. All rights and remedies
provided for herein shall be cumulative and in addition to any other rights
or remedies any such party may have at law or in equity.
Section 10.8. The captions of this Agreement are inserted only as a
------------
matter of convenience and for reference. They do not define, limit or
describe the scope or intent of this Agreement, and they shall not affect
the interpretation of this Agreement. All exhibits and schedules which are
mentioned in this Agreement are made a part hereof.
Section 10.9. The provisions of this Agreement are for the exclusive
------------
benefit of the parties and not for the benefit of any other person. Except
as otherwise provided in this Agreement, this Agreement shall not be deemed
to have conferred any rights, express or
-24-
implied, upon any third person. Nothing in this Agreement shall be
construed to create any rights in or for the benefit of any space lessee
(except Sotheby's) of any part of the Project.
Section 10.10. (a) If any party shall bring an action or proceeding
-------------
(including, without limitation, any cross-complaint, counterclaim or third
party claim) against any other party or parties by reason of the breach or
alleged violation of any covenant, term or obligation of this Agreement, or
for the enforcement of any provision of this Agreement, or otherwise
arising out of this Agreement, the prevailing party in such action or
proceeding shall be entitled to its costs and expenses of suit including,
without limitation, reasonable attorneys' fees and disbursements, which
shall be payable whether or not such action is prosecuted to judgment.
"Prevailing party" within the meaning of this Section 10.10 shall include,
without limitation, a party who dismisses an action for recovery under this
Agreement in exchange for payment of the sums allegedly due, performance of
covenants allegedly breached or consideration substantially equal to the
relief sought in the action.
(b) If any party is required to initiate or defend any action or
proceeding with a third party (including, without limitation, any cross-
complaint, counterclaim or third party claim) because of any other party's
breach of or failure to enforce this Agreement, or otherwise arising out of
this Agreement, and such party is the prevailing party in such action or
proceeding, then such party shall be entitled to reasonable attorneys' fees
and disbursements from such other party.
(c) Attorneys' fees under this Section 10.10 shall include,
without limitation, attorneys' fees on any appeal and, in addition, a party
entitled to attorneys' fees shall be entitled to all other reasonable costs
and expenses incurred in connection with such action.
Section 10.11. For the purpose of this Agreement, the term "person"
-------------
shall mean any individual, partnership, corporation, business trust, joint
stock company, trust,
-25-
unincorporated association, joint venture, governmental authority or other
entity of whatever nature.
Section 10.12. The invalidation of any of the provisions contained in
-------------
this Agreement, or of the application thereof to any person, by judgment or
court order shall in no way affect any of the other provisions of this
Agreement or the application thereof to any other person or circumstance
and this Agreement shall remain in effect.
Section 10.13. This Agreement may be signed in two or more
-------------
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties here to has executed this
Agreement as of the date and year first above written.
SOTHEBY'S, INC.
By
----------------------------
Xxxxxxxx Xxxxxxxxx,
Senior Vice President
YORK AVENUE DEVELOPMENT, INC.
By
----------------------------
Xxxxxxx X. Xxxxxxx,
` President
TAUBMAN YORK AVENUE ASSOCIATES, INC.
By
----------------------------
Xxxxxx X. Xxxxxx,
President
-26-
SOTHEBY'S LETTERHEAD
August 18, 0000
Xxxx Xxxxxx Development, Inc.
0000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Taubman York Avenue Associates, Inc.
000 Xxxx Xxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Gentlemen:
We refer to the Financing and Guarantee Agreement (the "Agreement"),
dated as of October 1, 1987, among Sotheby's, Inc. ("Sotheby's"), York
Avenue Development, Inc. ("York") and Taubman York Avenue Associates, Inc.
("Taubman") with respect to the proposed construction of a mixed-use tower
at 0000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Project"), and each of us
agrees as follows:
1. If York is unable to obtain third party financing, as may be
required in connection with the pre-development and construction phases of
the Project, Sotheby's shall have the right (but not the obligation) to loan
York all funds which are otherwise unavailable through such third party
financing, and York shall (but, in each ease, only with the prior written
approval of Taubman, which may be withheld by Taubman for any reason or for
no reason) borrow such funds from Sotheby's. In the ease of any such
borrowing from Sotheby's, York shall pay interest to Sotheby's at a rate
equal to not more than Sotheby's "cost of funds" provided such rate is
acceptable to Taubman in its sole and absolute judgment. If all of the
terms and conditions of such loans from Sotheby's to York are acceptable to
Taubman, in its sole and absolute judgment, Taubman shall guarantee the
repayment of such loans.
2. If Taubman loans funds to York under the Agreement, York has
agreed to pay interest on such loans at the rate of one percent in excess
of The Chase Manhattan Bank's prime commercial lending rate.
Notwithstanding this agreed upon interest rate, if, in lieu of York
obtaining financing from an institutional lender or, as provided in
paragraph 1 of this letter, from Sotheby's in connection with the
construction phase of 'the Project, Taubman loans funds to York for the
construction of the Project and such funds were borrowed by Taubman for the
purpose of loaning such borrowed funds to York for the construction of the
Project, York shall pay interest on such loans from Taubman at a rate equal
to Taubman's "cost of funds".
3. For the purpose of this letter, "cost of funds" means all costs
to Taubman or Sotheby's, as the case may be, of obtaining such funds from a
third party including, without limitation, interest, fees, premiums,
penalties, taxes and attorney's fees and disbursements.
York Avenue Development, Inc.
Taubman York Avenue Associates, Inc.
August 18, 1988
Page 2
The Agreement, except as hereby modified, is in all respects ratified
and confirmed and remains in full force and effect.
Very truly yours,
Agreed to: SOTHEBY'S, INC.
YORK AVENUE DEVELOPMENT, INC. By: /s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx,
By: /s/Xxxxxxx X. Xxxxxxx President
-------------------------
Xxxxxxx X. Xxxxxxx,
President
Dated: August 18, 1988
--
TAUBMAN YORK AVENUE ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx
President
Dated: August 18, 1988
--
