Exhibit 10.4
RECKSON OPERATING PARTNERSHIP, L.P.
c/o Reckson Associates Realty Corp.
10 East 50th Street
New York, New York 10022
As of May 10, 1999
NBBRE-919 Third Avenue Associates, L.P.
c/o NBB Real Estate, Inc.
530 Fifth Avenue
New York, New York 10036
Re: 919 Third Avenue (the "Property")
Gentlemen:
Reference is made to that certain Purchase and Sale Agreement (the
"Purchase Agreement") by and between Reckson Operating Partnership ("ROP")
(ROP, together with its affiliates, collectively, "Reckson") and NBBRE-919
Third Avenue Associates, L.P. (the "Lender") dated as of May 10, 1999, with
respect to the sale by Lender to ROP of the mortgage loan as more particularly
described in the Purchase Agreement (the "Transaction").
1. This letter confirms the agreement of Reckson and the Lender that, as
of the Closing Date, with the approval of ROP, all of the leasing commissions
listed on Schedule 7 shall have been paid, and at the Closing, Lender shall
deliver to ROP a receipt from ESG (as defined in the Purchase Agreement)
evidencing such payment.
2. This letter confirms the agreement between Reckson and the Lender
that, in addition to any restrictions set forth in the Confidentiality
Agreement (as hereinafter defined), any future press release and/or public
disclosure of information with respect to the Transaction (including, without
limitation, any filing with the Securities and Exchange Commission), if any,
issued and/or disclosed by Reckson shall be delivered to the Lender, for the
Lender's review (and, solely with respect to any aspect of such press release
and/or public disclosure of information which is not required to be issued
and/or disclosed by law, rule or regulation, approval) at least twenty-four
(24) hours before the issuance of any such press release and/or disclosure of
such information. To the extent required pursuant to the preceding sentence,
the Lender's approval shall not be unreasonably withheld, and shall be deemed
granted if (a) not denied in writing received by Reckson within twenty-four
(24) hours after the proposed press release and/or public disclosure of
information is received by the Lender (time being of the essence), or (b) the
proposed press release and/or public disclosure of information is
substantially similar to a press release or public disclosure previously
approved by Lender; provided, however, that the terms of clause (b) shall not
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apply to the initial press release and "8-K" to be filed immediately after the
Closing Date. Any such denial shall identity the portions of such press release
which are objected to by the Lender.
3. This letter confirms the agreement of Reckson and Lender that attached
hereto as Exhibit "A" is a true, correct and complete copy of that certain
confidentiality letter, dated as of February 9, 1999 (the "Confidentiality
Agreement"), executed on behalf of Reckson for the benefit of the Lender,
Borrower and ESG.
4. This letter confirms the agreement of Reckson and the Lender that the
Purchase Agreement is hereby amended as follows:
(a) Section 11.20 of the Purchase Agreement is hereby amended to delete
the first two (2) sentences thereof in their entirety and substitute the
following in its place:
"On or before the Due Diligence Expiration Date, the representatives of
both Purchaser and Seller shall jointly identify (by initialing a copy of an
index of Review Materials) and make two (2) copies of the Review Materials
(other than building plans) as existing as of the date two (2) business days
prior to the Due Diligence Expiration Date, and shall place a complete set of
such Review Materials in two separate boxes, one to be held by Purchaser, and
one to be held by Seller (the "Boxes"). With respect to building plans,
Purchaser agrees (a) to cause a copy of the building plans as existing as of
the Closing Date to remain at the Property, (b) that Seller shall have the
right, from time to time during business hours and upon reasonable notice to
Purchaser, to inspect the building plans, and (c) that if Seller requests
copies of all or any portion of the building plans, Purchaser shall deliver
such copies to Seller and the cost of such copies shall be borne equally by
Purchaser and Seller (the terms if this sentence shall survive the Closing).
Subject to the terms of the next immediately succeeding sentence, after the
Due Diligence Expiration Date and prior to the Closing Date, representatives
of Seller and Purchaser may, from time to time, jointly identify (by
initialing a revised copy of an index of Review Materials) and copy additional
materials to be placed in the Boxes."
(b) Section 6.5(e)(ii) of the Purchase Agreement is hereby amended to
delete the last two (2) sentences thereof in their entirety and substitute the
following in their place:
"With respect to real estate tax refunds or credits with respect to the
Real Property relating to the fiscal year in which the Closing occurs or
relating to prior fiscal years, (a) to the extent that Seller has authority,
Seller hereby authorizes and directs such refunds or credits to be paid to the
Cash Collateral Account (it being understood and agreed that Seller makes no
representation or warranty regarding its authority to so authorize and direct
such payment), and (b) as and when such refunds or credits are paid, Purchaser
shall pay to Seller an amount equal to the excess, if any, of any such refunds
or credits, over the amount of such refunds or credits paid or required to be
paid to tenants (it being understood and agreed that Purchaser shall pay to
Seller all refunds or credits required to be paid to tenants which are not
actually paid to tenants). The terms of this Section 6.5(e) shall survive the
Closing."
5. Except as modified and amended by this letter, all of the terms,
covenants and conditions of the Purchase Agreement are hereby ratified and
confirmed.
Kindly acknowledge your agreement to the foregoing by executing four (4)
copies of this letter where indicated and then return two (2) fully executed
copies to the undersigned.
Very truly yours,
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
its General Partner
By:
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Name: Jason Barnett
Title: EVP and General Counsel
AGREED AND ACCEPTED AS OF THIS 10TH DAY OF MAY, 1999:
NBBRE-919 THIRD AVENUE ASSOCIATES, L.P.
By: NBB Real Estate, Inc.
its General Partner
By:
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Name: Ichiro Tsunada
Title: President