SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
December 30, 1999
(Date of report)
Skyline Multimedia Entertainment, Inc.
(Exact Name of Registrant as Specified in Charter)
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<CAPTION>
<S> <C> <C>
New York 0-23396 11-3182335
(State of Incorporation) (Commission File Number) (IRS Employer I.D. No.)
</TABLE>
350 Fifth Avenue, New York, New York, 10118
(Address of principle executive offices)
(212) 564-2224
(Registrant's telephone number, including area code)
Item 7. Exhibits.
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Exhibit
Number Description
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10.59 Settlement Agreement, dated December 30, 1999, between New York Skyline, Inc. and Empire State Building Company
10.60 Surrender Agreement, dated December 30, 1999, between Empire State Building Company and New York Skyline, Inc.
10.61 Third Amendment of Lease, dated December 30, 1999, between Empire State Building Company and New York Skyline,
Inc.
10.62 Second Modification of License Agreement, dated December 30, 1999, between Empire State Building Company and
New York Skyline, Inc.
</TABLE>
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the Undersigned, thereunto duly authorized.
Skyline Multimedia Entertainment, Inc.
(Registrant)
/s/ Robert Brenner
By: Robert Brenner
President & Chief Executive Officer
EXHIBIT 10.59
Settlement Agreement
dated December 30, 1999,
between
New York Skyline, Inc.
and
Empire State Building Company
<PAGE>
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 350 Fifth Avenue, New York, New York and Empire State Building Company
("ESBC"), a New York partnership with offices at 350 Fifth Avenue, New York, New
York.
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"), Neil H. Kessner,
Kessner & Cyruli, f/k/a Neil H. Kessner & Associates (collectively, "Kessner"),
Helmsley-Spear, Inc. ("Helmsley-Spear"), Stephen A. Tole ) ("Tole"), Eileen
Aluska ("Aluska") and Peter L. Malkin ("Malkin") (ESBC, Inc., ESBA, Kessner,
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.
<PAGE>
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, Kessner,
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.
<PAGE>
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.
<PAGE>
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/ Robert Brenner
Name: Robert Brenner
Title: President/Chief
Executive Officer
EMPIRE STATE BUILDING COMPANY
By: Helmsley-Spear, Inc., Agent
By: /s/ John B. Trainor, Jr.
- -------------------------
Name: John B. Trainor, Jr.
Title: Senior Vice President
<PAGE>
EXHIBIT A
CONTAINS:
STIPULATION OF DISCONTINUANCE
WITH PREJUDICE
<PAGE>
EXHIBIT B
CONTAINS:
RELEASE OF CLAIM
AGAINST EMPIRE STATE BUILDING COMPANY
BY
NEW YORK SKYLINE, INC.
<PAGE>
EXHIBIT C
CONTAINS:
RELEASE OF CLAIM
AGAINST OTHER DEFENDANTS
BY
NEW YORK SKYLINE, INC.
<PAGE>
EXHIBIT D
CONTAINS:
RELEASE OF CLAIM
AGAINST NEW YORK SKYLINE, INC.
BY
EMPIRE STATE BUILDING COMPANY.
<PAGE>
EXHIBIT E
CONTAINS:
RELEASE OF CLAIM
AGAINST NEW YORK SKYLINE, INC.
BY
OTHER DEFENDANTS.
<PAGE>
EXHIBIT F
CONTAINS:
SECOND MODIFICATION
OF LICENSE AGREEMENT
BETWEEN
EMPIRE STATE BUILDING COMPANY
AND
NEW YORK SKYLINE, INC.
<PAGE>
EXHIBIT G
CONTAINS:
THIRD AMENDMENT OF LEASE BETWEEN
EMPIRE STATE BUILDING COMPANY
AND
NEW YORK SKYLINE, INC.
CONCERNING OFFICES AT
350 FIFTH AVENUE, NEW YORK, NEW YORK 10118
<PAGE>
EXHIBIT H
CONTAINS:
OPTION TO EXTEND LEASE
CONCERNING OFFICES AT
350 FIFTH AVENUE, NEW YORK, NEW YORK 10118
EXHIBIT 10.60
Surrender Agreement
dated December 30, 1999,
between
Empire State Building Company
and
New York Skyline, Inc.
<PAGE>
SURRENDER AGREEMENT
SURRENDER AGREEMENT, made this 30th day of December, 1999
between Empire State Building Company ("Landlord"), a corporation organized and
existing under the laws of the State of New York having an office for the
conducting of business at 350 Fifth Avenue, New York, New York 10118 and New
York Skyline, Inc. ("Tenant"), a corporation organized and existing under the
laws of the State of New York, having an office at 350 Fifth Avenue, New York,
New York 10118.
W I T N E S S E T H
Landlord and Tenant entered into that certain Lease dated
March, 1996, covering rooms 209-214, 233-250 and 340-346 (the "Demised
Premises") in the building known as 350 Fifth Avenue, New York, New York 10118
(the "Lease") (A copy of the Lease is annexed hereto).
Tenant desires to terminate the Lease and surrender the
premises demised thereunder to Landlord and Landlord is willing to accept the
surrender of the Demised Premises.
NOW, THEREFORE, in consideration of the mutual agreement of
the parties hereto and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party hereto, Landlord and
Tenant agree as follows:
1. Surrender of the Demised Premises.
1.1 Effective as of August 1, 1999 (the "Surrender
Date") Tenant has surrendered to Landlord, and Landlord has accepted the
surrender of, the Lease and the term and estate thereby granted, together with
the Demised Premises thereby demised, to the intent and purpose that the estate
of Tenant in and to the Demised Premises shall be wholly extinguished and that
the term of the Lease expired on the Surrender Date in the same manner and with
the same effect as if such date were the date set forth in the Lease for the
expiration of the term thereof.
1.2 Landlord shall deliver to Tenant a check
simultaneously with Landlord's execution of this Agreement in the amount of
$100,000.00 representing the security deposit held by Landlord under the Lease
(collectively, the "Security Deposit"). Landlord shall further deliver to Tenant
a second check representing the interest on such Security Deposit (the "Interest
Check"). If Landlord fails to so deliver good and available funds to Tenant upon
Landlord's execution of this Agreement, then Tenant may offset the amount of the
Security Deposit and the Interest Check amount from any amounts that Tenant owes
Landlord pursuant to any other agreement between Landlord and Tenant.
-1-
<PAGE>
1.3 There is no consideration specifically related
to the surrender of the Demised Premises and termination of the Lease. Landlord
and Tenant acknowledge and agree that (i) neither party has received, is
receiving or is entitled to receive any consideration, by payment,
extinguishment of debt or otherwise, in connection with this transaction and
(ii) Tenant has paid in full any and all fixed rent, additional rent and any
other amounts due in connection with the Lease. Landlord represents to Tenant
that as of the date hereof the Lease is in full force and effect without default
by Tenant thereunder and Landlord does not have any claims or rights against
Tenant. Tenant shall pay any State or municipal transfer taxes that may be
payable in connection with the surrender of the Demised Premises pursuant to
this Agreement. The covenant contained in the immediately preceding sentence
shall survive the termination of the Lease and the surrender of the Demised
Premises.
1.4 Notwithstanding anything to the contrary
contained in the Lease or this Agreement, Tenant shall not be required to
restore the Demised Premises or perform any other work whatsoever in, on or
about the Demised Premises.
2. Broker.
2.1 Landlord and Tenant each covenants, represents
and warrants to the other that it has had no dealings or communications with any
broker or agent in connection herewith. Landlord and Tenant agree to hold
harmless and indemnify each other from and against any and all reasonable costs,
expenses (including, without limitation, attorney fees and disbursements) or
liabilities for any compensation, commission or other charge claimed by any
broker or agent claiming to have dealt with the indemnifying party.
3. Notices.
3.1 Any notice, request or demand permitted or
required to be given by the terms and provisions of this Agreement by either
party herein to the other party herein, shall be in writing and sent by
reputable overnight courier or by United States Postal Service, certified mail,
return receipt requested to the parties at the addresses first set forth above.
Unless otherwise required by law any such notice, request or demand shall be
given and shall be deemed to have been served and given by Landlord on the first
day following deposit with such overnight courier or the United States Postal
Service. Notices to Landlord shall be in duplicate and the second such notice
each shall be addressed to Landlord c/o Wien & Malkin LLP, 60 East 42nd Street,
New York, New York 10165, Attention: Jack K. Feirman, Esq.
3.2 Either party may, by notice as aforesaid,
designate a different address or addresses for notices, requests or
-2-
<PAGE>
demands to it, and may also instruct that its attorneys be given copies of all
notices. Any notice, request or demand proposed to be given by such party may be
given by such party's attorneys, or in the case of Landlord, the managing agent
of the Building.
4. Miscellaneous.
4.1 Article headings are for convenience only and
shall not be considered with respect to or form a part of the making of any
interpretation of any term or provision hereof.
4.2 This Agreement contains the entire agreement of
both of the parties with respect to the matters contained herein. This Agreement
may not be modified, amended or otherwise changed except by a written instrument
signed by both parties.
4.3 This Agreement shall be governed by and
construed under the laws of the State of New York without regard to conflicts of
laws principles and shall be binding upon and inure to the benefit of Landlord
and Tenant and their respective successors and assigns.
4.4 No partner, member, shareholder, director,
officer, manager, principal, employee or agent, directly and indirectly, of
Tenant (collectively, the "Parties") shall be personally liable for the
performance of Tenant's obligations under this Agreement. Landlord shall look
solely to Tenant to enforce Tenant's obligations hereunder and shall not seek
any damages against any of the Parties.
4.5 Landlord and Tenant represent, warrant,
covenant and agree with each other that the execution and delivery of this
Agreement by Landlord and Tenant are within its power and authority. Such
execution and delivery (i) does not conflict with, violate, breach or cause a
default under any agreement or instrument to which Landlord or Tenant,
respectively, is a party and (ii) such party has obtained all consents,
approvals or authorizations necessary for the execution and delivery of this
Agreement. As of the execution date, Landlord and Tenant each represents that it
has unrestricted full right, power and lawful authority to execute and perform
this Agreement and to terminate and accept the surrender of the estate demised
herein. The provisions of this Section shall survive the expiration of this
Agreement.
-3-
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as
of the day and year first above written.
EMPIRE STATE BUILDING COMPANY
By: /s/ John B. Trainor, Jr.
- -------------------------
John B. Trainor, Jr.
Senior Vice President
NEW YORK SKYLINE, INC.
By: /s/ Robert Brenner
Name: Robert Brenner
Title: President
EXHIBIT 10.61
Third Amendment of Lease
dated December 30, 1999,
between
Empire State Building Company
And
New York Skyline, Inc.
<PAGE>
THIRD AMENDMENT OF LEASE
AGREEMENT, made as of the 30th day of December, 1999, by and between
Empire State Building Company (hereinafter referred to as "Landlord"), having an
office at 350 Fifth Avenue, New York, New York 10118 and New York Skyline, Inc.
(hereinafter referred to as "Tenant"), having an office at 350 Fifth Avenue, New
York, New York 10118 (this "Third Amendment").
STATEMENT OF FACTS
WHEREAS, Landlord and Tenant entered into that certain agreement of
lease made as of February 26, 1993 ("Original Lease"), which Original Lease was
subsequently modified by that certain Lease Modification Agreement dated March,
1996 covering certain premises described therein, and that certain Lease
Modification Agreement made as of February 8, 1994, true and complete copies of
which are annexed hereto collectively as Exhibit A (said lease, as modified,
hereinafter referred o as the "Lease"); and
WHEREAS, the Landlord and Tenant desire to modify the Lease as set
forth herein upon all of the terms, covenants and conditions set forth in this
Third Amendment;
NOW, THEREFORE, for ten ($10.00) dollars and other good and valuable
consideration, the receipt and adequacy of which is hereby mutually
acknowledged, Landlord and Tenant hereby agree to the following:
TERMS AND CONDITIONS
1. DEFINITIONS
For the purposes of this Third Amendment, the following
definitions shall apply:
(a) All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Lease.
(b) "Effective Date" shall mean February 26, 1993.
(c) The term "Base Year" shall mean the full calendar year during which the
term of this lease commences.
(d) The term "Price Index" shall mean the "Consumer Price Index" published
by the Bureau of Labor Statistics of the U.S. Department of Labor, All Items,
New York, N.Y. Northeastern, N.J. , all urban consumers (presently denominated
"CPI-U"), or a successor or substitute index appropriately adjusted.
(e) The term "Price Index for the Base Year" shall mean the average of the
monthly All Items Price Indexes for each of the 12 months of the Base Year.
<PAGE>
2. ESCALATIONS
From and after the Effective Date, Article 46 of the Original
Lease is hereby deleted in its entirety and the following provisions are
substituted in its place:
"CONSUMER PRICE INDEX ESCALATION"
46. The fixed annual rent reserved in this lease and payable hereunder
shall be adjusted, as of the time and in the manner set forth in this Article:
(a) Effective as of each January and July subsequent to Base
Year, there shall be made a cost of living adjustment of the fixed annual rental
rate payable hereunder. The July adjustment shall be based on the percentage
difference between the Price Index for the preceding month of June and the Price
Index for the Base Year. The January adjustment shall be based on such
percentage difference between the Price Index for the preceding month of
December and the Price Index for the Base Year.
<PAGE>
(i) In the event that Price Index for June in any calendar
year during the term of this lease reflects an increase over the price Index for
the Base year, then the fixed annual rent herein provided to be paid as of July
1st following such month of June (unchanged by any adjustments under this
Article) shall be multiplied by the percentage difference between the Price
Index for June and the Price Index for the Base Year, and the resulting sum
shall be added to such fixed annual rent, effective as of such July 1st. Said
adjusted fixed annual rent shall thereafter be payable hereunder, in equal
monthly installments, until it is readjusted pursuant to the terms of this
lease.
(ii) In the event the Price Index for December in any calendar
year during the term of this lease reflects an increase over the Price Index for
the Base Year, then the fixed annual rent herein provided to be paid as of the
January 1st following such month of December (unchanged by any adjustments under
this Article) shall be multiplied by the percentage difference between the Price
Index for December and the Price Index for the Base Year, and the resulting sum
shall be added to such fixed annual rent effective as of such January 1st. Said
adjusted fixed annual rent shall thereafter be payable hereunder, in equal
monthly installments, until it is readjusted pursuant to the terms of this
lease.
The following illustrates the intentions of the parties hereto as to
the computation of the aforementioned cost of living adjustments in the annual
rent payable hereunder:
Assuming that said fixed annual rent is $10,000, that the
Price Index for the Base Year was 102.0 and that Price Index
for the month of June in a calendar year following the Base
Year was 105.0 , then the percentage increase thus reflected,
i.e., 2.941% (3.0/102.0) would be multiplied by $10,000, and
said fixed annual rent would be increased by $294.10 effective
as of July 1st of said calendar year.
In the event that the Price Index ceases to use 1982-84=100 as the
basis of calculation, or if a substantial change is made in the terms or number
of items contained in the Price Index, then the Price Index shall be adjusted to
the figure that would have been arrived at had the manner of computing the Price
Index in effect at the date of this lease not been altered. In the event such
Price Index (or a successor or substitute index) is not available, a reliable
governmental or other non-partisan publication evaluating the information
theretofore use in determining the Price Index shall be used.
(b) Landlord will cause statements of the cost of living
adjustments provided for in subdivision (a) to be prepared in reasonable detail
and delivered to Tenant.
(c) In no event shall the fixed annual rent originally
provided to be paid under this lease (exclusive of the adjustments under this
Article) be reduced by virtue of this Article.
(d) Any delay or failure of Landlord, beyond July or January
of any year, in computing or billing for the rent adjustments herein above
provided, shall not constitute a waiver of or in any way impair the continuing
obligation of Tenant to pay such rent adjustments hereunder.
(e) Notwithstanding any expiration or termination of this
lease prior to the lease expiration date (except in the case of a cancellation
by mutual agreement) Tenant's obligation to pay rent as adjusted under this
Article shall continue and shall cover all periods up to the lease expiration
date, and shall survive any expiration or termination of this lease.
<PAGE>
3. NO BROKERS/INDEMNIFICATION
Landlord and Tenant represent and warrant that neither
consulted or negotiated with any broker or consultant with regard to this Third
Amendment. Landlord and Tenant agree to indemnify, defend and hold one another
harmless from and against any and all claims for fees and commission from anyone
claiming to have dealt with the respective party in connection with this Third
Amendment.
4. MISCELLANEOUS
(a) Except as otherwise provided herein, all of the terms,
covenants, conditions and provisions of the Lease shall remain and continue
unmodified, in full force and effect.
(b) This Third Amendment sets forth the entire agreement
between the parties, superseding all prior agreements and understandings,
written and oral, and may not be altered or modified except by a writing signed
by both parties.
(c) The covenants and agreements herein contained shall bind
and inure to the benefit of Landlord, it successors and assigns, and Tenant, its
successors and assigns. If any of the provisions of this Third Amendment, or its
application to any situation, shall be invalid or unenforceable to any extent,
the remainder of this Third Amendment, or the application thereof to situations
other than that as to which it is invalid or unenforceable, shall not be
affected thereby, and every provision of this Third Amendment shall be valid and
enforceable to the fullest extent permitted by law.
(d) The captions of this Third Amendment are for convenience
and reference only and no way define, limit or describe the scope or intent of
this Third Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Third
Amendment as of the day and year first above written.
EMPIRE STATE BUILDING COMPANY
By: /s/ John B. Trainor, Jr.
- ------------------------
John B. Trainor, Jr.
Senior Vice President
NEW YORK SKYLINE, INC.
By: /s/ Robert Brenner
Robert Brenner
President
<PAGE>
EXHIBIT A
CONTAINS:
ORIGINAL LEASE
DATED FEBRUARY 26, 1993,
BETWEEN
EMPIRE STATE BUILDING COMPANY
AND
NEW YORK SKYLINE, INC.
CONCERNING OFFICES AT
350 FIFTH AVENUE, NEW YORK, NEW YORK 10118,
LEASE MODIFICATION AGREEMENT
DATED MARCH, 1996,
LEASE MODIFICATION AGREEMENT
DATED FEBRUARY 8, 1998,
AND
THIRD AMENDMENT OF LEASE
DATED DECEMBER 30, 1999
EXHIBIT 10.62
Second Modification of License Agreement
dated December 30, 1999,
between
Empire State Building Company
And
New York Skyline, Inc.
<PAGE>
SECOND MODIFICATION OF LICENSE AGREEMENT
This Second Modification of License Agreement, made as of the
30th day of December, 1999 among Empire State Building Company ("ESBC"), having
an office at 350 Fifth Avenue, New York, New York 10118, Empire State Building,
Inc. ("ESB, Inc."), having an office at 60 East 42nd Street, New York, New York,
(hereinafter together referred to as "Licensor"), and New York Skyline, Inc.,
having an office at 350 Fifth Avenue, New York, New York 10118 (hereinafter
referred to as "Licensee").
WHEREAS, Licensor is the Lessor of the building known as the Empire State
Building (the "Building"), and ESB, Inc. is the operator of the observatory on
the 86th floor of the Building (the "Observatory"); and
WHEREAS, ESBC and Licensee have entered into certain leases (the "Leases");
and
WHEREAS, ESBC and Licensee entered into that certain License Agreement,
made as of February 26, 1993, pursuant to which ESBC granted to Licensee a
license to have tickets to the Attraction (defined therein) sold by Licensor
under the terms, covenants and conditions set forth therein (hereinafter
referred to as the "License"), and whereas certain disputes arose with respect
thereto; and
WHEREAS, ESBC and Licensee entered into a certain License Modification
Agreement, made as of March, 1996, and whereas certain disputes have arisen with
respect thereto; and
WHEREAS, Licensor and Licensee desire to resolve their disputes; and
WHEREAS, Licensor and Licensee wish to further modify the License as set
forth herein. NOW, THEREFORE, in consideration of the covenants herein
contained, the parties hereto agree as follows:
<PAGE>
1. License:
Article 1 of the License shall be deleted and the following shall be
substituted in its place and stead:
License: Licensor hereby grants to Licensee, and
Licensee hereby accepts from Licensor, a license to
have tickets to the Attraction sold by Licensor, in
accordance with the provisions of the License
Agreement, as modified by the License Modification
Agreement dated March, 1996, and the Second
Modification of License Agreement dated December 30,
1999.
2. Annual License Fee and Contingent License Fee:
Article 3 of the License Agreement and Article 11 of the
License Modification Agreement are hereby deleted and the following set forth
below is substituted in their place and stead:
2.1 Annual License Fee: Licensee shall pay to Licensor a fixed
license fee (the "Annual Fee") at the following rates per annum, payable to
Licensor in advance in equal monthly installments on the first day of each month
without any setoff or deduction whatsoever:
- $100,000.00 per annum ($8,333.33 per month) through March 31,
1995;
- $150,000.00 per annum ($12,500.00 per month) from April 1, 1995
through March 31, 1998;
- $175,000.00 per annum ($14,583.33 per month) from April 1, 1998
through March 31, 2002;
<PAGE>
- $200,000.00 per annum ($16,666.66 per month) from April 1, 2002
through March 31, 2006;
- $225,000.00 per annum ($18,750.00 per month) from April 1, 2006
through April 30, 2013; and
- $186,250.00 per annum ($15,520.84 per month) from May 1, 2013
through June 30, 2016.
All payments, charges or reimbursements due hereunder from
Licensee shall be deemed additional license fees and payable on demand, unless
otherwise herein provided.
The Annual Fee payable hereunder shall be payable without
regard to whether the Attraction is open for business.
2.2 Contingent License Fee: In addition to the Annual Fee, as
an incentive for Licensor to sell tickets to the Attraction ("Attraction
Tickets"), Licensee shall pay to Licensor, in accordance with Schedule A which
is annexed hereto, and upon the terms and conditions set forth below, an annual
contingent license fee (the "Annual Contingent License Fee") at the end of the
calendar year.
(a) No Annual Contingent License Fee shall be paid for any
calendar year unless and until the Capture Rate (defined below) equals and/or
exceeds 10.5% for that calendar year. The Capture Rate, which is set forth in
COLUMN 1 of Schedule A, is a percentage equaling the total number of Attraction
Tickets sold by Licensor in a given calendar year (numerator) divided by the
total admissions to the Observatory in such calendar year (denominator). By way
of example only, if 100,000 tickets are sold by Licensor to the Attraction in
the calendar year 1999, and 1,000,000 are the total admissions to the
Observatory in the calendar year 1999, then the 1999 Capture Rate is 10.0%.
<PAGE>
e.g., (Annual Attraction Tickets
sold by Licensor) 100,000 = 10.0%
--------------------------------------
(Annual Admissions to the 1,000,000
Observatory)
The applicable Capture Rate shall be the highest listed percentage in COLUMN 1
of Schedule A which was actually obtained. By way of example only, if the
Capture Rate is 10.8%, the applicable Capture Rate shall be 10.5%. In
determining the Capture Rate, it is expressly understood that the numerator of
the above formula shall also include sales by Licensor through the vending
machines as set forth in paragraph 3 hereof.
(b) Licensor shall provide Licensee with weekly, monthly,
quarterly and annual reports ("Reports"), certified by a duly authorized
representative of Licensor, setting forth: the number of admissions to the
Observatory and the number of tickets sold by Licensor to the Attraction, with a
breakdown of daily tallies. The Reports shall be substantially in the form of
the reports annexed hereto as Schedule B. The annual reports ("Annual Reports")
shall also set forth the Capture Rate. Weekly Reports shall be provided within
seven days of each week; monthly Reports shall be provided within fifteen days
of the end of each month; quarterly Reports shall be provided within twenty-one
days of the end of each calendar quarter; and Annual Reports shall be provided
within thirty days of the end of each calendar year. To the extent permitted by
law, Licensee shall not further disseminate, publish or disclose Licensor's
Reports to any third party, other than: (i) Licensee's accountants, (ii) in a
lawsuit, arbitration or administrative proceeding in which Licensor and Licensee
are both parties; or (iii) pursuant to a court order or other legal mandate.
<PAGE>
(c) Provided that Licensee does not dispute Licensor's Capture
Rate as set forth in the Annual Report, Licensee shall pay Licensor an Annual
Contingent License Fee in accordance with Articles 2.2(d) within thirty (30)
days of the receipt of Licensor's Annual Report for the applicable period.
(d) If the Capture Rate shall equal and/or exceed 10.5% for
any calendar year, Licensee shall pay to Licensor the applicable Contingent
License Fee, in accordance with COLUMN 2 of the table set forth in Schedule A.
(e) Notwithstanding any restrictions to the contrary in the
License Agreement and/or the License Modification Agreement, the parties have
mutually agreed to implement the Contingent License Fee system which shall be
effective August 1, 1999, and continue for the term of this Agreement. For the
calendar year 1999, one-half of the applicable Contingent License Fee shall be
payable if the Capture Rate for the period August 1, 1999 through December 31,
1999 shall equal and/or exceed 10.5%.
(f) The certified Annual Reports furnished by Licensor to
Licensee shall constitute a final determination as between Licensor and Licensee
as to the Capture Rate, unless Licensee, within thirty (30) days after
Licensee's receipt of the certified Annual Reports shall give a notice ("Dispute
Notice") to Licensor that it disputes the accuracy of the certified Annual
Reports, which notice shall specify the particular respects in which the Annual
Report is inaccurate. Licensee shall have the right, during reasonable business
hours and upon not less than five (5) business days' prior written notice to
Licensor, to examine Licensor's books and records (including, but not limited
to, back-up documentation such as ticket stubs, and receipts) with respect to
the Capture Rate. Licensee shall notify Licensor in detail of the results of
such examination within fourteen (14) days after concluding such examination. If
Licensee shall give a Dispute Notice, upon not less than five (5) business days'
prior written notice to Licensee, Licensor shall also have the right to examine
Licensee's books and records (including, but not limited to, back-up
documentation such as ticket stubs, and receipts) with respect to the Capture
Rate.
<PAGE>
(g) Any dispute as to the Capture Rate Figures which is not
resolved by the parties shall be resolved in accordance with the procedures set
forth in Article 6 herein.
3. Ticket Computer Vending Machines at Concourse Area:
Notwithstanding anything to the contrary in the License
Agreement or License Modification Agreement, Licensor hereby authorizes Licensee
to install, at a location (in the Concourse area of the Building) selected by
Licensor, two (2) ticket computer vending machines to sell Observatory Tickets
and/or Combination Tickets (defined below). The ticket computer vending machines
shall accept as payment for the tickets credit cards, but not cash. The cost of
such ticket computer vending machines (including, installation), and all
expenses incurred in connection with the maintenance, repair and replacement of
such machines, shall be borne by Licensee. However, if Licensor requires
Licensee to move the location of such ticket computer vending machines, the
Licensor shall bear all costs and expenses associated with moving and
re-installing such machines, in accordance with Article 8.1 herein.
(a) Any payments received for Observatory Tickets purchased
from the ticket computer vending machines shall be segregated into a separate
account created and maintained by Licensor; Licensor shall be responsible for
all costs, fees and/or charges associated with such account (including, but not
limited to, the reduction in any manner by credit card company fees or any other
costs associated with credit cards or other forms of payment).
<PAGE>
(b) Any payments received for Combination Tickets purchased
from the ticket computer vending machines shall be segregated into a separate
account created and maintained by Licensor. Licensor's share of the receipts
from such Combination Tickets shall not be reduced in any manner by credit card
company fees or any other costs associated with credit cards or other forms of
payment. Within five (5) business days of the expiration of each month, Licensor
shall: (i) pay to Licensee that portion of the Combination Ticket payments which
belongs to Licensee; and (ii) provide Licensee with a report, certified by a
duly authorized representative of Licensor, setting forth the number of
Combination Tickets sold by the ticket computer vending machines and the amounts
collected by such machines for the applicable period. Any dispute as to the
above report which is not resolved by the parties shall be resolved in
accordance with the procedures set forth in Article 6 herein.
4. Purchase of Observatory Tickets by Licensee:
Article 1(D) of the License Modification Agreement shall be
amended to add the following provisions at the end of the first sentence:
"Licensee shall be permitted to purchase Observatory Tickets
from Licensor's office at the Building or from Licensor's
Concourse Ticket Office or in accordance with the terms and
conditions of the voucher system described in Article 5
herein.
It is expressly understood and agreed to by the parties that
beginning on August 1, 1999, Licensee has the right to
purchase tickets to the Observatory ("Observatory Tickets")
from Licensor at the lowest wholesale price charged to anyone
at that particular time ("Licensor's Lowest Wholesale Rate").
For the period August 1, 1999 through January 2, 2000,
Licensor's Lowest Wholesale Rate is $4.20 for an adult ticket,
$2.80 for a student ticket, $2.10 for a senior ticket and
$2.00 for a child's ticket. For the period beginning January
3, 2000 (until there is a subsequent change), Licensor's
Lowest Wholesale Rate shall be $5.25 for an adult ticket,
$4.00 for a student ticket, $4.00 for a senior ticket and
$3.00 for a child's ticket.
<PAGE>
Licensor's Lowest Wholesale Rate shall be provided to Licensee
irrespective of how the rates are determined, whether by
number of tickets purchased, category or any other means. Upon
written request of Licensee, Licensor further agrees to
furnish to Licensee a written list of the then-existing
Licensor's Lowest Wholesale Rate within ten (10) business days
of Licensee's written request.
Licensor warrants and represents that the Licensor's Lowest
Wholesale Rates set forth above are the lowest wholesale
prices for the Observatory Tickets charged to anyone for the
periods of time set forth.
Licensee shall not sell Observatory Tickets alone at its
ticket window in The Empire State Building, but shall sell
them only as Combination Tickets with tickets to the
Attraction Tickets.
To the extent permitted by law, Licensee shall not further
disseminate, publish or disclose Licensor's Wholesale Rates or
updated Wholesale Rates to any third party, other than: (i)
Licensee's accountants, (ii) in a lawsuit, arbitration or
administrative proceeding in which Licensor and Licensee are
both parties; or (iii) pursuant to a court order or other
legal mandate."
5. Voucher System:
5.1 The first sentence of Article 4(f) of the License
Agreement shall be deleted and the following sentence shall be substituted in
its place and stead:
"Licensor shall have no obligation to handle discount
coupons, rebates or other promotional items of any kind."
<PAGE>
5.2 Notwithstanding anything to the contrary in the License Agreement or
License Modification Agreement, Licensor and Licensee mutually agree to
implement a voucher system which shall be effective no earlier than January 1,
2000, and continue for the term of this Agreement.
5.3 Licensee shall make an initial deposit of twenty thousand ($20,000.00)
dollars into Licensor's bank account designated by Licensor for the purpose of
purchasing Observatory Tickets from Licensor ("Observatory Voucher Bank
Account"). At present, Licensor intends to use Fleet Bank.
5.4 When a customer purchases a Combination Ticket from Licensee to both
the Attraction and the Observatory, Licensee shall provide the customer with a
printed Observatory Voucher ("Observatory Voucher"). The Observatory Voucher
shall contain an identical serial number on both ends of its face, and shall
contain information as required by Article 44 of the lease for rooms 216-WP232
and 325-328. Licensee shall retain one-half of a sold Observatory Voucher
(containing the serial number on one end) to a customer; the other half
(containing the serial number on the other end) shall be given to the customer
who, in turn, shall remit such partial Observatory Voucher to Licensor or its
agents to gain admittance to the Observatory.
5.5 For each Observatory Voucher remitted to Licensor, Licensor shall
deduct the cost of an Observatory Ticket (in accordance with the terms and
conditions set forth in Article 1(D) of the License Modification Agreement and
Article 4 herein) from the Observatory Voucher Bank Account.
5.6 (a) Licensor shall authorize Licensee to check the balance of the
Observatory Voucher Bank Account on a daily basis and shall forward Licensee a
copy of all bank statements for such account.
<PAGE>
(b) Following the expiration of each month, Licensor shall submit to
Licensee a statement, certified by a duly authorized representative of Licensor,
setting forth the number of Observatory Vouchers it received from customers for
the applicable period (the "Observatory Voucher Statement").
(c) The Observatory Voucher Statement thus furnished to Licensee shall
constitute a final determination as between Licensor and Licensee as to the
amount of Observatory Vouchers sold for the period covered thereby, unless
Licensee, within thirty (30) days after Licensee's receipt of the Observatory
Voucher Statement shall give a Dispute Notice to Licensor that it disputes the
accuracy of the Observatory Voucher Statement, which notice shall specify the
particular respects in which the Observatory Voucher Statement is inaccurate.
(d) Any dispute as to the above figures which is not resolved by the
parties shall be resolved in accordance with the procedures set forth in Article
6 herein.
(e) If the Observatory Voucher Statement, as finally determined, shows a
variance between the amount of Observatory Vouchers sold by Licensee and the
amount for which the Observatory Voucher Bank Account was charged for the
applicable monthly period, Licensee or Licensor, as the case may be, will pay to
the other within five (5) days of such final determination the amount of any
excess or deficiency in Licensee's payments.
5.7 Licensor shall give Licensee written notice anytime the balance of the
Observatory Voucher Bank Account equals or is less than two thousand five
hundred ($2,500.00) dollars, and Licensee shall restore the balance to at least
twenty thousand ($20,000.00) dollars no less than five (5) business days from
the receipt of such written notice.
<PAGE>
6. Arbitration:
6.1 Any controversy, dispute, or claim arising out of or relating to this
Agreement, the License Agreement, and/or the License Modification Agreement, or
the performance, interpretation, application, implementation, breach or
enforcement thereof, shall be subject to mandatory arbitration as provided
herein. In the event any party has breached or defaulted in the performance of
any obligation under this Agreement, the License Agreement, and/or the License
Modification Agreement, the party claiming a default or breach or a dispute
shall provide written notice to the other party of the default and/or breach or
any other dispute, and the other party shall have ten (10) days from the date of
receipt of the notice of default (the "Notice of Default") to cure said default
or resolve the dispute (the "Cure Period").
6.2 (a) In the event the default or breach is not cured or the dispute is
not resolved after the steps required by Article 6.1 are taken, the matter shall
be submitted to binding arbitration conducted in accordance with the
then-current Commercial Arbitration Rules of the AAA, except as otherwise
modified by this Agreement.
(b) Each arbitration shall be conducted by three (3) arbitrators. The
parties agree that the arbitration shall be conducted on an expedited basis
irrespective of the amount of the claims and/or counterclaims. All notices,
however, from the AAA must be done in writing.
(c) Upon payment of the service charge, the AAA shall submit simultaneously
to each party an identical list of ten (10) proposed arbitrators, drawn from the
National Panel of Commercial Arbitrators, from which three arbitrators shall be
appointed. Each party may strike three names from the list on a peremptory
basis. The list is returnable to the AAA within seven (7) days from the date of
the AAA's mailing to the parties. If for any reason the appointment of the three
arbitrators cannot be made from the list, the AAA shall send additional lists,
in accordance with the procedure set forth above, until the appointment of three
(3) arbitrators. The parties shall be given notice by the AAA, in writing, of
the three arbitrators, who shall be subject to disqualification for the reasons
specified in Section 19 of the AAA rules. The parties shall notify the AAA, in
writing, within seven (7) days of any objection to the arbitrators appointed in
accordance with Section 19.
<PAGE>
(d) The arbitrators shall set the date, time and place of the arbitration
hearing, and provide the parties with at least fourteen (14) days advance
written notice of the hearing date. Unless otherwise agreed by the parties in
writing, both parties shall be given a full and fair opportunity to engage in
discovery and prosecute and/or defend the claims, and shall not be forced to
have the hearing in one day. The award shall be rendered not later than fourteen
(14) days from the date of the closing of the hearing. The arbitration panel
must adhere to and apply the substantive laws of the State of New York,
including the rules of evidence.
(e) An award made by the arbitration panel shall be final, binding and
conclusive on all parties hereto for all purposes, and judgment on an award
granted by the arbitrators may be entered and enforced in any court of competent
jurisdiction.
(f) Each arbitration shall take place at the New York City Office of the
AAA. Each party's costs of arbitration shall be borne to the respective parties,
except that the costs and expenses of the arbitrators shall be shared equally by
the parties. If any party does not comply with the final award, such party shall
bear all resulting costs of enforcing the award.
(g) Notwithstanding the provisions of this Article, each party shall have
the right to apply to an arbitrator selected by the AAA for the purpose of
temporary or preliminary injunctive relief and/or an order directing arbitration
pursuant hereto, or to a court of appropriate jurisdiction for the same or
similar relief.
6.3 Nothing contained in this Article shall modify, amend or
otherwise change the parties' rights and remedies under the Leases.
<PAGE>
7. Sharing Marketing Information:
The parties' respective marketing departments shall meet on or
before January 14, 2000, and at least on a quarterly basis thereafter (at a
mutually agreeable time), at the Building, or at a location otherwise agreed to,
to discuss sharing marketing information and exchanging marketing ideas
regarding, inter alia: (i) information on group tours and sales; (ii) mailings
for group solicitations; (iii) trade show information; and (iv) educating
prospective customers about the Observatory and the Attraction.
8. Ticket Sales:
8.1 The following shall be added as the last sentence
to Article 4(a) of the License Agreement:
"It is expressly understood, however, that if Licensor
subsequently requires Licensee to move the location of such
machines, then Licensor shall bear all costs and expenses
associated with moving and re-installing such machines, in
accordance with Article 3 herein."
8.2 The third sentence in Article 4(c) of
the License Agreement shall be deleted and the following shall
be substituted in its place and stead" "At present, Licensor
intends to use Fleet Bank." 8.3 The following sentence shall
be added to the end of Article 4(c) of the License Agreement:
"Licensee may seek to recover any disputed amount in
accordance with Article 6 herein."
8.4 The last paragraph in Article 4(e) entitled
"Statement, Disputes, Etc." of the License Agreement shall be deleted and the
following shall be substituted in its place and stead:
"Any dispute as to the above Statements which is not resolved
by the parties shall be resolved in accordance with the
procedures set forth in Article 6 herein."
<PAGE>
9. Signage, Etc.:
Article 5 of the License Agreement shall be supplemented as
follows:
"Licensor shall also post the admission price for the
Attraction, and the price for a ticket covering Observatory
and Attraction admission ("Combination Ticket") directly below
the posting of the Observatory admission price in the
Observatory ticket sales office room.
Licensee shall permit Licensor to post one (1) sign, at a
mutually agreeable location at the site of the Attraction,
listing the current weather and/or visibility at the
Observatory. Licensor shall be solely responsible for: (i) the
cost and expense of the sign; and (ii) removing, altering,
changing, and/or updating the sign during Licensee's regular
business hours. The sign's size shall be mutually agreed upon
by the parties."
Licensee shall post one (1) sign, at a mutually agreeable
location at the site of the Attraction, stating that Licensee
is not affiliated with Licensor.
10. Cost Reimbursements:
The third sentence of Article 6(a) of the License Agreement
shall be deleted and the following shall be substituted in its place and stead:
"Any dispute as to whether the number of man hours was
increased, or as to the cost thereof, which is not resolved by
the parties, shall be resolved in accordance with the
procedures set forth in Article 6 herein."
<PAGE>
11. Default:
The following phrase shall be deleted from clause (b) of
Article 10 of the License Agreement:
"or hereinafter promulgated by Licensor hereunder or thereunder,"
12. Brokerage:
Licensee and Licensor represent and warrant that neither
consulted nor negotiated with any broker or finder with regard to this
Agreement. Licensee and Licensor agree to indemnify, defend and save one another
harmless from and against any claims for fees or commissions from anyone
claiming to have dealt with the respective party in connection with this
Agreement.
13. Indemnity:
The following shall be added to the last sentence of Article
21 of the License Agreement:
"provided that the injuries and/or damages allegedly
sustained were not caused in whole or in part by the
culpable conduct (including, negligence, lack of care, fault
and/or the assumption of the risk) of Licensor, or its
employees, agents or contractors."
14. Right to Cancel:
The following shall be added after the second sentence in
Article 24 of the License Agreement:
"Licensor shall give Licensee written notice fifteen
(15) days in advance, setting forth in reasonable detail the
reasons for Licensor's determination. Any dispute under this
Article which is not resolved by the parties shall be
resolved in accordance with the procedures set forth in
Article 6 herein."
15. Daily Attendance Figures:
The following shall be added to the last sentence of Article
1(H) of the License Modification Agreement:
"to any third parties, other than: (i) Licensee's accountants,
(ii) in a lawsuit, arbitration or administrative proceeding to
which Licensee and Licensor are parties, or (iii) pursuant to
a court order or other legal mandate."
<PAGE>
16. Entertainment Facility:
Article 1(I) of the License Modification Agreement shall be
deleted.
17. Ratification:
The amendments set forth herein, shall not affect any of the
terms, covenants and conditions of the License Agreement and the License
Modification Agreement, which Agreements, as amended hereby, are and shall
remain in full force and effect, and are hereby confirmed and agreed to by
Licensor and Licensee. The amendments set forth herein shall not affect any
terms, covenants and conditions of the Leases.
18. Storage Space:
The parties agree that they will discuss the possibility of a
Storage Lease Agreement for the storage of Licensee's promotional material,
brochures, signs, etc. (the "Storage Lease Agreement"). The Storage Lease
Agreement, if agreed to by the parties, shall be for a term to be determined by
the parties. Nothing herein shall obligate either Licensor or Licensee to enter
into such a Storage Lease Agreement.
19. Non-cash sales:
The following shall be added after the last sentence of
Article 4(g) of the License Agreement:
"(vi) Notwithstanding the above, Licensor is permitting
visitors to pay for admission to the Observatory and Attraction
by non-cash payment such as credit card. It is expressly agreed
that Licensee is not responsible for any costs, fees, credit card
charges, expenses, equipment or other items relating to
transactions which do not involve the sale of Attraction Tickets
and/or Combination Tickets."
20. Miscellaneous:
(a) The captions in this Agreement are for convenience
only and are not to be considered in construing this Agreement.
(b) Nothing in this Agreement shall be construed to give
benefits to any person or corporation or other entity, other than the Licensor
and Licensee, and this Agreement shall be for the sole and exclusive benefit of
the Licensor and Licensee.
<PAGE>
(c) Nothing contained herein shall be deemed to create a
partnership, joint venture or other similar relationship between the parties or
as appointing either party as the agent for the other party. However, nothing in
this clause shall be deemed to waive or otherwise obviate any rights,
privileges, obligations or other legal entitlements that either Licensor or
Licensee have under the relevant applicable law.
(d) This Agreement shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Agreement to be drafted.
(e) It is further expressly understood and agreed that neither
party to this Agreement, nor any of their agents or those under their control or
otherwise acting on behalf of the parties, shall make any defamatory statements
or disparaging or negative statements about the other party's attraction.
(f) Terms used in this Agreement and not otherwise defined
herein shall have the respective meanings ascribed thereto in the License
Agreement and the License Modification Agreement.
(g) If any provision of this Agreement or its application to
any person or circumstances is invalid or unenforceable to any extent, the
remainder of this Agreement, or the applicability of such provision to other
persons or circumstances, shall be valid and enforceable to the fullest extent
permitted by law and shall be deemed to be separate from such invalid or
unenforceable provisions and shall continue in full force and effect.
(h) The definition of "Licensor" in the License is hereby
modified and amended to include ESB, Inc. in the definition.
EMPIRE STATE BUILDING COMPANY
By: /s/ John B. Trainor, Jr.
- -------------------------
John B. Trainor, Jr.
Senior Vice President
EMPIRE STATE BUILDING, INC.
By:____________________________
NEW YORK SKYLINE, INC.
By: /s/ Robert Brenner
Robert Brenner
President
