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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: February 25, 2005
(Date of earliest event reported)
NATHAN'S FAMOUS, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 1-3189 11-3166443
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(State of Incorporation) (Commission (I.R.S. Employer
File Number) Identification No.)
1400 Old Country Road, Westbury, New York 11590
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number including area code (516) 338-8500
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(Former name or former address, if changed since last report.)
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On February 25, 2005, Nathan's Famous Operating Corp. ("Operating Corp."),
a wholly-owned subsidiary of Nathan's Famous, Inc. (the "Registrant") and Thor
Realty, LLC ("Buyer") entered into a purchase and sale agreement (the "Real
Estate Agreement") dated as of February 23, 2005 pursuant to which Operating
Corp. has agreed to sell to Buyer all of the Operating Corp.'s right, title and
interest in and to a vacant real estate parcel located in Brooklyn, New York, in
exchange for a payment of $3,100,000. The Real Estate Agreement also provides
that at the time of the sale of the real estate Operating Corp. (as tenant) will
cause its affiliate, Namasil Realty Corp. to assign, and Buyer will assume, all
the rights and obligations of the tenant under a lease for an adjacent property
between Namasil and Ida's Realty Corp. dated November 17, 1967, as amended, in
exchange for the payment of $500,000 to Operating Corp. over a period of up to 3
years.
There is no material relationship between the Registrant and any of its
affiliates and the Buyer, other than in respect of the Real Estate Agreement.
A copy of the Real Estate Agreement is filed as Exhibit 10.1
hereto.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(c) 10.1 Purchase and Sale Agreement dated as of February 23, 2005 between
Nathan's Famous Operating Corp. and Thor Realty, LLC.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunder duly authorized.
NATHAN'S FAMOUS, INC.
By: /s/Ron DeVos
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Ronald DeVos
Vice-President Finance
and Chief Financial Officer
(Principal Financial and Accounting Officer)
Dated: February 28, 2005
PURCHASE AND SALE AGREEMENT
by
and
between
NATHANS FAMOUS OPERATING CORP.,
A Delaware corporation
"Seller"
and
THOR REALTY, LLC,
A New York limited liability company
"Purchaser"
Dated as of
February 23, 2005
INDEX
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1. IDENTIFICATION OF PARTIES............................................1
2. DESCRIPTION OF THE PROPERTY..........................................1
3. THE PURCHASE PRICE...................................................1
4. TITLE; VIOLATIONS.....................................................2
5. INSPECTION...........................................................3
6. REPRESENTATIONS AND WARRANTIES OF SELLER ............................4
7. PREPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER..............6
8. INTENTIONALLY OMITTED
9. CONFIDENTIALITY......................................................8
10. CONDITIONS PRECEDENT TO CLOSING.....................................8
11. COVENANTS OF SELLER.................................................10
12. SELLER'S CLOSING DELIVERIES.........................................10
13. PURCHASER'S CLOSING DELIVERIES.......................................11
14. PRORATIONS AND ADJUSTMENTS..........................................11
15. CLOSING.............................................................12
16. CLOSING COSTS.......................................................12
17. RISK OF LOSS........................................................13
18. DEFAULT.............................................................14
19. BROKER'S COMMISSION.................................................14
20. 1314 BOWERY ASSIGNMENT AND ASSUMPTION OF LEASE...................
21. INDEMNIFICATION.....................................................15
22. MISCELLANEOUS.....................................................15
TABLE OF EXHIBITS
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Exhibit A Legal Description of the Land
Exhibit B Permitted Exceptions
Exhibit C Service Contracts
Exhibit D Form of Bill of Sale
Exhibit E Form of General Assignment
Exhibit F Lease
Exhibit G Nathan's Lease
PURCHASE AND SALE AGREEMENT
1. IDENTIFICATION OF PARTIES.
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THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into as of
February 23, 2005, by and between NATHANS FAMOUS OPERATING CORP., formerly known
as Nathan's Famous, Inc., a Delaware corporation having an address of 1400 Old
Country Road, Ste. 400, Westbury, NY 11590 ("Seller"), and THOR REALTY, LLC, a
New York limited liability company having an address of 139 Fifth Avenue, New
York, NY 10010 ("Purchaser").
2. DESCRIPTION OF THE PROPERTY.
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Seller hereby agrees to sell, assign and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of Seller's right, title and interest
in and to the following:
(a) That certain real property located at 1219 Bowery, in the City of New
York, County of Kings, State of New York, more particular1y described on Exhibit
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A attached hereto and incorporated herein by this reference (the "Land"),
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together with the building and any other improvements located thereon (the
"Building");
(b) All rights, privileges, easements and appurtenances to the Land and the
Building, if any, including, without limitation, all of Seller's right, title
and interest in and to all mineral and water rights and all easements,
rights-of-way and other appurtenances used or connected with the beneficial use
or enjoyment of the Land and the Building (the Land, the Building and all such
easements and appurtenances are sometimes collectively hereinafter referred to
as the "Real Property");
(c) All of the interest of Seller in all assignable commission, management,
maintenance, service and supply agreements and contracts affecting the Real
Property ("Service Contracts") (a schedule of all presently existing Service
Contracts for the Real Property is attached hereto as Exhibit C and incorporated
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herein).
(d) All of the interests of Seller in all assignable permits, licenses,
certificates and approvals ("Permits") relating to the Real Property.
(e) Seller's interest (if any) in and to any service contracts, guarantees,
licenses, approvals, certificates, permits and warranties relating to the
Property, to the extent assignable (collectively, the "Intangible Property").
(The Real Property, the Service Contracts, the Permits and the Intangible
Property are sometimes collectively hereinafter referred to as the "Property").
3. THE PURCHASE PRICE.
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The purchase price for the Property is Three Million One Hundred Thousand
Dollars ($3,100,000.00) (the "Purchase Price") and shall be paid by Purchaser to
Seller at the Closing (as that term is defined in Section 15 below) as follows:
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(a) Within two (2) business days after execution of this Agreement by all
parties, Purchaser shall deposit in escrow with Kramer, Coleman, Wactlar &
Lieberman, P.C. ("Escrow Agent") an initial earnest money deposit in immediately
available funds in the amount of Three Hundred Ten Thousand Dollars
($310,000.00) (the "Deposit").
(b) The Deposit paid by Purchaser pursuant to the terms hereof shall be
held by Escrow Agent, pursuant to a separate escrow agreement, in an interest
bearing account insured by the federal government in an institution reasonably
acceptable to Seller. In the event the purchase and sale of the Property is
consummated as contemplated hereunder, the Deposit (plus all interest accrued
thereon) shall be paid to Seller. In the event the purchase and sale of the
Property is not consummated because of the failure of any Purchaser's Condition
Precedent (as defined in Section 10 below), except for a default under this
Agreement on the part of Purchaser, the Deposit (plus all interest accrued
thereon) shall be immediately refunded to Purchaser. In the event the purchase
and sale of the Property is not consummated because of a default under this
Agreement on the part of Purchaser, the Deposit (plus all interest accrued
thereon) shall be paid to and retained by Seller pursuant to Section 18(b).
(c) The balance of the Purchase Price shall be paid to Seller by wire
transfer of immediately available funds at the Closing, net of all prorations as
provided herein.
(d) (i) The duties and obligations of the Escrow Agent are only such as
herein specifically provided, being purely ministerial in nature. The Escrow
Agent shall incur no liability for any error in judgment, for any act done or
step taken or omitted to be taken by it in good faith, for any mistake of fact
or law or for any reason whatsoever except for its own willful misconduct.
(ii) Seller and Purchaser hereby release the Escrow Agent from any act done
or omitted to be done by it in good faith in the performance of its duties
hereunder. Seller and Purchaser hereby agree to indemnify and hold harmless the
Escrow Agent from and against any and all losses, costs, claims, liabilities and
expenses (including without limitation reasonable attorneys' fees) incurred by
the Escrow Agent in connection with the Deposit or in its capacity as Escrow
Agent hereunder.
(iii) The Escrow Agent is also counsel to Seller and shall have the right
to continue such representation in all events or circumstances.
4. TITLE; VIOLATIONS.
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(a) Promptly after the execution hereof, Purchaser shall order from any
title insurance or abstract company licensed in New York and acceptable to
Purchaser ("Title Company"), and shall deliver or cause to be delivered to
Seller's attorney within thirty (30) days after its receipt thereof, a
commitment for an a title insurance policy pertaining to the Real Property (the
"Commitment"), all at Purchaser's sole cost and expense.
(b) Seller shall remove all title exceptions delineated on the Commitment,
except the Permitted Exceptions listed on Exhibit B. In the event Seller is
unable to remove the title exceptions listed in the Commitment, other than the
Permitted Exceptions, then Purchaser shall have the right and option to cancel
the Contract. In the event Purchaser elects to cancel the Contract, Seller shall
immediately return the Deposit to Purchaser together with the aggregate amount
of Purchaser's third party costs as identified in Section 4(c). Seller shall be
entitled to reasonable adjournments of the Closing, not to exceed 60 days in the
aggregate for the purpose of eliminating any objections to title, but nothing
herein contained shall require Seller to bring any action or proceeding, or
incur any expenses that are reasonably expected to exceed $25,000 in the
aggregate (the "Maximum Amount") (except to the extent provided in the next
succeeding sentence) in order to render the title to be in accordance with this
Agreement. In the case of any exceptions to title which can be removed or
insured against by the Title Company solely by the payment of a liquidated sum
of money, (i.e. unpaid taxes, assessments, water charges, sewer
rents and other liquidated liens), Seller shall be obligated to pay, or deposit
with the Title Company at the Closing, such liquidated sum for the removal of
such title exceptions.
(c) If, as of the Closing Date, title to the Land or the Building shall not
be as provided in this Agreement, Purchaser shall have the option of either (i)
terminating this Agreement, in which event the Escrow Agent shall pay the
Deposit to Purchaser and Seller shall reimburse Purchaser for Purchaser's third
party costs, whereupon neither party shall have any further rights or
obligations hereunder, or (ii) accepting such title as Seller shall be able to
convey, without any reduction of the Purchase Price or any credit or allowance
against the same, except that if there shall be an encumbrance which is not a
Permitted Encumbrance and which can be removed by the payment of a liquidated
sum of money, Purchaser shall be entitled to an offset against the Purchase
Price in an amount equal to such sum. The term "Purchaser's third party costs"
shall mean the expense actually incurred by Purchaser for title search (when not
obtaining a title policy) and survey preparation.
(d) If on the Closing Date the Real Property is subject to any notes or
notices of violation of law or municipal ordinances, orders or requirements,
that have been noted in or issued by any federal, state or municipal department
having jurisdiction, and which have not been fully remedied and discharged of
record ("Violations"), Seller, at its expense, shall be obligated to cure and
discharge each Violation prior to the Closing and pay any fines associated
therewith.
5. Intentionally omitted.
6. REPRESENTATIONS AND WARRANTIES OF SELLER.
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Seller represents and warrants to Purchaser that the following matters are
true and correct in all material respects as of the execution of this Agreement
and will also be true and correct in all material respects as of the Closing:
(a) Seller is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has the full power and
authority to execute and deliver this Agreement and all documents now or
hereafter to be executed and delivered by its pursuant to this Agreement (the
"Seller's Documents") and to perform all obligations arising under this
Agreement and under the Seller's Documents.
(b) This Agreement constitutes, and the Seller's Documents will each
constitute, the legal, valid, and binding obligation of Seller, enforceable in
accordance with their respective terms, covenants, and conditions (except to the
extent that such enforcement may be limited by applicable bankruptcy or
insolvency laws). This Agreement and the Seller's Documents do not and will not
contravene any provision of the by laws of Seller, any judgment, order, decree,
writ or injunction, or any provision of any existing law or regulation and do
not and will not violate any provisions of any agreement to which Seller is a
party or to which it is subject.
(c) There are no pending legal proceedings or administrative actions of any
kind or character materially and adversely affecting the Property or Seller's
interest therein.
(d) There are no violations of any federal, state or municipal laws,
ordinances with regard to any portion of the Property and no written notice of
any such violation has been issued by any governmental authority; no heating
equipment, garbage disposal, compactor, incinerator or other burning equipment
at the Property violates any applicable federal, state or municipal law,
ordinance, order, regulation or requirement.
(e) Seller has no knowledge of and has received no written notice from any
city, county, state or other government authority (i) of any order or directive
requiring any work of repair, maintenance or improvement be performed on the
Property, or (ii) relating to defects in the Building or relating to
noncompliance with any applicable building code or restriction that has not been
corrected, or relating to any threat of impending condemnation.
(f) Seller has no knowledge of: (i) the presence of any Hazardous
Substances (as defined below) at, on or under the Property; (ii) any spills,
releases, discharges, or disposal of Hazardous Substances that have occurred or
are presently occurring on or onto the Property; or (iii) any failure to comply
with all applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the Property. As
used in this Contract, "Hazardous Substances" shall mean (i) any "hazardous
substance" defined both as of the date of this agreement as such in (or for the
purpose of) the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C.A. ss.9601(14) or any so-called "superfund" or "superlien" law;
(ii) any "pollutant or contaminant" now defined in 42 U.S.C.A. ss.9601(33);
(iii) any material now defined as "hazardous waste" pursuant to 40 C.F.R. Part
260; (iv) any petroleum, including crude oil or any fraction thereof; (v) any
"hazardous chemical" now defined in 29 C.F.R. Part 1910; and (vi) any other
substance, regardless of physical form that is currently subject to: any other
applicable local, state and/or federal environmental laws, rules, regulations,
ordinances, administrative and judicial orders relating to the generation,
recycling, reuse, storage, handling, transport and disposal of such Hazardous
Substances including without limitation PCBs, asbestos and asbestos containing
materials.
(g) Except for that certain Lease, dated December __, 1994 annexed hereto
as Exhibit F, there are no leases, tenancies, licenses or other occupancy
agreements to which Seller is a party or by which Seller may be bound for any
portion of the Land or Building.
(h) There are no Service Contracts affecting the Property.
(i) Intentionally omitted.
(j) The Property constitutes a separate tax lot(s) which are not owned in
common with any other party, and ad valorem real estate taxes have been assessed
against each of such portion of the Property as a separate tax lot(s) without
regard to property owned by any other party;
(k) Neither the entry into nor the performance of, or compliance with, this
Agreement (A) has resulted, or will result, in any violation of, or (B) is or
will be in conflict with, or (C) has resulted, or will result, in the creation
of any mortgage, lien, encumbrance or other charge upon the Property, or (D)
constitutes or will constitute a default under any corporate charter,
certificate of incorporation, by-law, partnership agreement, mortgage indenture,
contract, permit, judgment, decree, order, statute, rule or regulation,
applicable to Seller, or any entity constituting Seller or to the Property;
(l) No approval, consent, order or authorization of, or designation,
registration or declaration with, any governmental authority is required in
connection with the valid execution and delivery of the compliance with this
Agreement by Seller.
(m) There is no condemnation proceeding pending with regard to all or part
of the Property and, to the best of Seller's knowledge, there is no such
proceeding contemplated by any governmental authority;
(n) All certificates, permits and licenses from any governmental authority
having jurisdiction over the Property which are necessary to permit the lawful
use and operation of the
buildings and improvements on the Property as they presently exist, have been
obtained (or will be obtained prior to the Closing Date, and are now, and will
continue to be at all times before the Closing Date, in full force and effect,
and, to the best of Seller's knowledge, there is no pending threat of
modification, cancellation, termination or expiration of any such certificate,
permit, approval or license.
(o) There is no violation of any restriction, condition or agreement
contained in any instrument affecting the Property and Seller has received no
notices of default from any third party who shall be benefited by any such
restriction, condition or agreements. No covenants or restrictions, easements or
other agreements, if any, to which Purchaser takes title subject to provide for
forfeiture or reverter in the event of violation thereof, nor do they impose any
restriction on alteration or demolition of any improvements constructed on the
Premises;
(p) Intentionally omitted;
(q) Seller is not a foreign person within the meaning of Section 1445 of
the Internal Revenue Code of 1986, as amended. At the Closing, Seller shall
deliver an executed certificate in the applicable form set forth in Treasury
Regulation Section 1.1445-2(b)(2);
(r) Seller represents and warrants to Purchaser that it has received no
notice, and has no knowledge, of any unconfirmed or pending assessments against
the Property. If on the Closing Date the Property or any part thereof shall be
or shall have been affected by an assessment or assessments which are or may
become payable in annual installments, of which the first installment is then a
charge or lien, or has been paid, then for the purposes of this Agreement, those
unpaid installments of such assessment which are then a charge or lien on the
Property, shall be paid and discharged by Seller upon the Closing;
(s) Seller has no notice of any pending actions, applications, orders,
protests, proceedings or complaints against or affecting title to the Premises;
The representations and warranties contained in this Article 6 and any
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other provision of this Agreement shall be true and correct on the Closing Date
as if made on that date and shall not survive the Closing.
At Closing, Seller shall deliver a certificate to Purchaser disclosing any
material changes to the foregoing representations, or stating that there are no
such material changes.
7. PURCHASER'S; REPRESENTATIONS,
WARRANTIES AND COVENANTS.
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Purchaser hereby represents and warrants to Seller, as follows:
(a) Purchaser is a limited liability company, duly organized, validly
existing and in good standing under the laws of the State of New York and has
the full power and authority to execute and deliver this Agreement and all
documents now or hereafter to be executed and delivered by its pursuant to this
Agreement (the "Purchaser's Documents") and to perform all obligations arising
under this Agreement and under the Seller's Documents.
(b) This Agreement constitutes, and the Purchaser's Documents will each
constitute, the legal, valid, and binding obligation of Purchaser, enforceable
in accordance with their respective terms, covenants, and conditions (except to
the extent that such enforcement may be limited by applicable bankruptcy or
insolvency laws). This Agreement and the Seller's Documents do not and will not
contravene any provision of the operating agreement of
Purchaser, any judgment,order, decree, writ or injunction, or any provision of
any existing law or regulation and do not and will not violate any provisions of
any agreement to which Purchaser is a party or to which it is subject.
(c) Purchaser is not an employee benefit plan (a "Plan") subject to the
Employee Retirement Income Security Act of 1974, as amended "ERISA"), or Section
4975 of the. Internal Revenue Code of 1986, as amended (the "Code"), nor a
person or entity acting, directly or indirectly, on behalf of any Plan or using
the assets of any Plan to acquire the Property, Purchaser is not a "party in
interest" (as that term is defined in Section 3(14)) of ERISA with respect to
any Plan that is an investor in Seller, and Purchaser's acquisition of the
Property will not constitute or result in a prohibited transaction under Section
406 of ERISA or Section 4975 of the Code.
(d) Purchaser is not a tax exempt, non profit organization, institution or
church.
8. INTENTIONALLY OMITTED.
9. EXCLUSIVITY.
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Seller acknowledges that Purchaser will be expending funds and managerial
time in connection with the further study of the purchase of the Property.
Seller shall not solicit, advertise, enter into any contract or negotiations
therefor regarding the Property with any other party commencing on the date
hereof and continuing thereafter until the termination of this Contract.
10. CONDITIONS PRECEDENT TO CLOSING.
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The following shall be conditions precedent to Purchaser's obligation to
consummate the purchase and sale transaction contemplated herein (the
"Conditions Precedent"):
(i) Purchaser shall not have terminated this Agreement in accordance with
Section 4, Section 17(a) or Section 17(b) of this Agreement within the time
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periods described in said Sections.
(ii) Title Company shall stand ready to issue, at the Closing, an ALTA Form
B owner's policy of title insurance on the standard form issued in the State of
New York (the "Title Policy"), insuring that Purchaser has insurable title to
the Real Property as herein provided, dated the day of the Closing, with
liability in the amount of the Purchase Price, subject only to the Permitted
Exceptions, and such other matters as the Title Company shall be willing,
without premium, to omit as exceptions to coverage or to except with insurance
against collection out of or enforcement against the Property.
(iii) There shall be no breach, in any material respect, of any of Seller's
representations, warranties or covenants set forth in Section 6 and Section 11,
as of the Closing.
(iv) Seller shall have delivered to Purchaser the items described in
Section 12.
The conditions set forth in this Section 10 are solely for the benefit of
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Purchaser and may be waived only by Purchaser. Purchaser shall, at all times
prior to the termination of this Agreement, have the right to waive any of these
conditions.
11. COVENANTS OF SELLER.
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Seller hereby covenants with Purchaser, as follows:
(a) After the date hereof and prior to the Closing, no part of the
Property, or any interest therein, will be sold or otherwise transferred
(including, without limitation, by entering into a new lease, or modifying or
extending an existing lease, or creating a right of occupancy by operation of
law) without Purchaser's consent.
(b) Until the Closing, Seller, as commercially reasonable and consistent
with past practices, shall keep the Property insured, (or cause the Property to
be insured) against fire, vandalism and other loss, damage and destruction,
provided, however, that Seller's insurance policies shall not be assigned to
Purchaser at the Closing, and Purchaser shall be obligated to obtain its own
insurance coverage from and after the Closing.
(c) Until the Closing, Seller shall operate and maintain the Property in
the manner being operated and maintained on the date of this Agreement.
(d) Intentionally omitted.
(e) Seller shall not withdraw, settle or otherwise compromise any protest
or reduction proceeding affecting real estate taxes assessed against the
Property for any fiscal period in which the Closing is to occur or any
subsequent fiscal period without the prior written consent of Purchaser, which
consent shall not be unreasonably withheld. Real estate tax refunds and credits
received after the Closing Date which are attributable to the fiscal tax year
during which the Closing Date occurs shall be apportioned between Seller and
Purchaser, after deducting the expenses of collection thereof, which obligation
shall survive the Closing.
(f) Without first obtaining Purchaser's consent, Seller shall not enter
into any contracts or other agreements which could bind Purchaser or the
Property after the Closing.
(g) Seller shall not alter the Property or consent to such alteration
except to complete any improvements or non-structural changes, installations, or
decorations which may be required by law.
(h) Seller shall cause the Property to be maintained in its condition as of
the date hereof, normal and reasonable wear and tear excepted.
12. SELLER'S CLOSING DELIVERIES.
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At the Closing, Seller shall deliver or cause to be delivered to Purchaser
the following:
(a) A statutory form of Bargain and Sale Deed without covenants against
Grantor's Acts, executed by Seller, conveying the Real Property to Purchaser
free and clear of all claims, liens and encumbrances except the Permitted
Exceptions and matters arising by or through Purchaser (the "Deed").
(b) An affidavit of title, acceptable to the title company, subject to the
Permitted Exceptions and any other matters provided not in violation of Seller's
obligations hereunder.
(c) A Bill of Sale executed by Seller, in the form of Exhibit D attached
hereto, conveying to the Purchaser title to the Personal Property, if any (the
"Bill of Sale").
(d) An affidavit certifying that Seller is not a "foreign person" within
the meaning of Section 1445(f)(3) of the Code (the "Certificate of Non-Foreign
Status").
(e) A General Assignment executed by Seller, in the form of Exhibit E
attached hereto, assigning to Purchaser the Service Contracts, the Permits and
any warranties, guaranties and indemnities relating to the Property, to the
extent that such items are assignable (the "General Assignment").
(f) The Certificate of no change in Seller's representations set forth in
Section 6.
(g) Such other documents, instruments and items that may be reasonably
required by Purchaser and the Title Company in connection with the Closing;
(h) Any other documents, instruments or agreements reasonably necessary to
effectuate the transaction contemplated by this Agreement.
13. PURCHASER'S CLOSING DELIVERIES.
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At the Closing, Purchaser shall deliver to Seller:
(a) The balance of the Purchase Price, together with such other sums as
shall be required to pay Purchaser's share of the Closing costs, prorations,
reimbursements and adjustments as set forth in Sections 14 and 20 herein, in
immediately available funds.
(b) An executed counterpart of the General Assignment whereby Purchaser
shall assume the obligations relating to the matters set forth in such
documents.
(c) Any other documents, instruments or agreements reasonably necessary to
effectuate the transaction contemplated by this Agreement.
14. PRORATIONS AND ADJUSTMENTS.
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(a) The following shall be prorated and adjusted between Seller and
Purchaser as of the day of the Closing, except as otherwise specified:
(i) Ad valorem taxes and similar taxes/assessments relating to the
Property for the most recently ascertainable ad valorem taxes and similar
taxes/assessments shall be prorated between Seller and Purchaser as of 11:59
p.m. on the day prior to the Closing Date. Adjustments shall be made promptly
after the issuance of such ad valorem taxes and assessments for the fiscal year
in which the Closing Date occurs and in the fiscal year prior to the fiscal year
of the Closing if applicable, and a final adjustment shall be made no later than
the last date of the next fiscal year when the actual taxes are known. Any
assessments after the Closing Date for prior years due to a change in land usage
or ownership or other change in tax status of the Real Property, shall be
prorated between Seller and Purchaser as of 11:59 p.m. on the day prior to the
Closing Date, and a final adjustment shall be made no later than the last date
of the fiscal year in which any such assessment shall be issued.
(ii) All ordinary operating expenses and charges of the Property
including, without limitation, public utility charges, maintenance, management
and other service charges
(including ad valorem tax appeal contracts), expenses and charges under any
service agreements (including, without limitation, the Service Contracts), and
all other normal operating charges with respect to the Property shall be
prorated at Closing effective as of 11:59 p.m. on the day prior to the Closing
Date. If the exact amount of any item to be prorated is not known as of the
Closing Date, the proration shall be based upon a reasonable estimate thereof
made by Seller and as soon after the Closing as the exact amount of the item is
known, the proration shall be adjusted, if necessary, and appropriate cash
adjustments shall be made by Purchaser and Seller if necessary.
(iii) If any refund of ad valorem taxes or similar taxes/assessments
relating to the Property is made after the Closing Date for a period prior to
the Closing, the same shall be applied to the costs incurred in obtaining same
and the balance to Seller.
Except as set forth in this Section 14, all items of income and
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expense which accrue for, the period prior to the Closing will be for the
account of Seller and all items of income and expense which accrue for the
period on and after the Closing will be for the account of Purchaser. The
provisions of this Section 14 shall survive the Closing.
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15. CLOSING.
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The purchase and sale contemplated herein shall close (the "Closing") on or
about one hundred twenty (120) days after the execution hereof, or on such other
specific date and time mutually agreed to by the parties; provided, however,
that Purchaser shall be entitled to extend the Closing Date for a period of
thirty (30) days by depositing an additional sum of Fifty Thousand ($50,000)
Dollars with the Escrow Agent and delivering notice thereof to Seller on or
before the then scheduled Closing Date. If Purchaser shall so elect to extend
the Closing Date, such additional deposit shall be deemed part of the Deposit
for all purposes hereof. As used herein, the term "Closing Date" means the date
and time that Seller delivers the Deed to Purchaser and Purchaser tenders to
Seller the balance of the Purchase Price as required hereby.
16. CLOSING COSTS.
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Seller shall pay any realty transfer tax due in connection with the
consummation of the transaction contemplated herein. Purchaser shall pay all
costs and expenses incurred in connection with obtaining any financing for the
purchase of the Property, including title, documentation and appraisal costs
relating thereto, any title insurance premium payable in connection with
Purchaser obtaining an ALTA owner's policy and any lender's policy of title
insurance, the fee for recording the Deed and all other closing costs. Each
party shall bear the expense of its own counsel.
17. RISK OF LOSS.
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(a) If prior to the Closing, the Building, or any part thereof, are
materially damaged (as set forth in Section 17(d)), Purchaser shall have the
--------------
right, exercisable by giving notice to Seller within twenty (20) days after
receiving written notice of such damage or destruction (but in any event prior
to the Closing), either (i) to terminate this Agreement, in which case neither
party shall have any further rights or obligations hereunder, and any money
(including, without limitation, the Deposit and all interest accrued thereon) or
documents delivered hereunder shall be returned to the party delivering the same
and Purchaser shall be responsible for any title fee, or (ii) to accept the
Property in its then condition and to proceed with the Closing without any
abatement or reduction in the Purchase Price and receive an assignment of all of
Seller's right to any insurance proceeds (and pay to Purchaser any proceeds
already received) payable by reason of such damage or destruction and a credit
for the amount of any deductible. If Purchaser elects to proceed under clause
------
(ii) above, Seller shall not compromise, settle or adjust any claims to
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such proceeds without Purchaser's prior written consent, but Seller shall
cooperate with Purchaser in such settlement or adjustment and any legal actions
in connection with same.
(b) If prior to the Closing, all or any material portion (as set forth in
Section 17(d)) of the Property is subject to a taking by public authority,
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Purchaser shall have the right, exercisable by giving notice to Seller within
twenty (20) days after receiving written notice of such taking (but in any event
prior to the Closing), either (i) to terminate this Agreement, in which case
neither party shall have any further rights or obligations hereunder, and any
money (including, without limitation, the Deposit and all interest accrued
thereon) or documents delivered hereunder shall be returned to the party
delivering the same, and Purchaser shall be responsible for any title fee, or
(ii) to accept the Property in its then condition, without any abatement or
reduction in the Purchase Price, and receive an assignment of all of Seller's
rights to any condemnation award payable by reason of such taking (and pay to
Purchaser any proceeds already received). If Purchaser elects to proceed under
clause (ii) above, Seller shall not compromise, settle or adjust any claims to
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such award without Purchaser's prior written consent, but Seller shall cooperate
with Purchaser in such settlement or adjustment and any legal actions in
connection with same. As used in this Section 17, "taking" shall mean any
-----------
transfer of the Property or any portion thereof to a governmental entity or
other party with appropriate authority, by exercise of the power of eminent
domain.
(c) In the event that prior to the Closing, any non-material portion of the
Property is damaged or subject to a taking, Purchaser shall accept the Property
in its then condition (without any abatement or reduction in the Purchaser
Price) and proceed with the Closing, in which case Purchaser shall be entitled
to an assignment of all of Seller's rights to any insurance proceeds and the
amount of any deductible or any award in connection with such taking, as the
case may be (and to a payment/credit for any proceeds already received by
Seller). In the event of any such non-material damage or taking, Seller shall
not compromise, settle or adjust any claims to such insurance proceeds or such
award, as the case may be, without Purchaser's prior written consent.
(d) For the purpose of this Section 17, damage to the Property or a taking
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of a portion thereof shall be deemed to involve a material portion thereof if
the reasonably estimated cost of restoration or repair of such damage or the
amount of the condemnation award with respect to such taking shall exceed One
Hundred Thousand ($100,000) Dollars.
(e) Seller shall promptly notify Purchaser of any casualty or any actual or
threatened condemnation affecting the Property. Any such notice relating to
casualty shall be accompanied by Seller's selection of an architect or engineer
to determine the cost of repair and/or replacement.
18. DEFAULT.
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In the event Seller willfully defaults in its obligations under this
Agreement, Purchaser shall, at Purchaser's sole option, either (i) have the
right to terminate this Agreement and receive the return of the deposit,
interest and third-party costs, or (ii) have the right to have all remedies at
law and in equity, including, without limitation, specific performance. In the
event Purchaser defaults in failing to close under this Agreement, Seller shall
be entitled to retain the Deposit as its sole and exclusive remedy.
19. BROKER'S COMMISSION.
-------------------
Purchaser and Seller each represents and warrants to the other that no
brokerage commission, finder's fee or other compensation is due or payable with
respect to the transaction
contemplated hereby. Purchaser hereby agrees to indemnify, defend, and hold
Seller harmless from and against any losses, damages, costs and expenses
(including, but not limited to, reasonable attorneys' fees and costs) incurred
by Seller by reason of any breach or inaccuracy of the Purchaser's
representations and warranties contained in this Section 19. Seller hereby
----------
agrees to indemnify, defend, and hold Purchaser harmless from and against any
losses, damages, costs and expenses (including, but not limited to, attorneys'
fees and costs) incurred by Purchaser by reason of any breach or inaccuracy of
Seller's representations and warranties contained in this Section 19. The
-----------
provisions of this Section 19 shall survive the Closing.
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20. 1314 BOWERY ASSIGNMENT AND ASSUMPTION OF LEASE.
----------------------------------------------
(a) Seller and Purchaser hereby agree that simultaneous with the Closing,
Seller shall assign to Purchaser, and Purchaser shall assume from Seller, in
accordance with the terms of an assignment of lease, all rights and obligations
of tenant under that certain lease (the "Nathan's Lease"), dated November 17,
1967, as amended on September 30, 1988, by and between Ida's Realty Corp., as
landlord ("Landlord"), and Namasil Realty Corp., an affiliate of Seller, as
tenant ("Tenant"), with respect to the property located at 1314 Bowery, a/k/a
Block 7074, Lot 310, Brooklyn, New York (the "Ida's Property"), a copy of which
is annexed hereto as Exhibit G, which Nathan's Lease is subject to that certain
Lease by and between Seller, as successor in interest to Tenant, and Luna
Operating Corp., dated December __, 1994, as amended, a copy which is annexed
hereto as Exhibit F (the "Sublease") (Note: the Sublease is part of the same
document which contains the direct lease between Seller and Luna Operating
Corp.). Notwithstanding anything to the contrary contained herein, Seller shall
not request that the Nathan's Lease be assigned to Purchaser until Seller is
directed to do so by Purchaser.
(b) In connection with the assignment and assumption of the Nathan's Lease,
Purchaser agrees to pay to Seller the sum of $500,000 (the "Assignment Price").
The Assignment Price shall be paid as follows:
(i) In the event Purchaser (or Purchaser's affiliate) purchases the
Ida's Property on or before the Closing Date, Purchaser shall pay to Seller
the full Assignment Price on the Closing Date; or
(ii) In the event Purchaser has not purchased the Ida's Property by
the Closing Date, Purchaser shall pay to Seller the sum of $100,000 on the
Closing Date, and the balance of the Assignment Price shall be payable by
Purchaser to Seller on or before the earlier of the following to occur: (1)
3 years after the Closing Date; or (2) 6 months after the closing on the
purchase of the Ida's Property.
(c) Seller represents and warrants to Purchaser that: (i) neither Seller
nor Tenant has in any manner encumbered Tenant's leasehold estate under the
Nathan's Lease, (ii) Tenant has good title to and has not previously assigned or
otherwise transferred its interest in the Nathan's Lease, except as set forth in
the Sublease, and (iii) there are no existing defaults by Tenant under the
Nathan's Lease, or event of default by Tenant or a condition or event which,
with the giving of notice, the passage of time, or both, would constitute a
default under the Nathan's Lease.
(d) Seller covenants that after the date hereof, neither Seller nor Tenant
shall exercise any right that it may have as tenant under the Nathan's Lease
(except to collect rent from Luna Operating Corp., the subtenant) or to
otherwise modify, terminate, surrender or extend the Nathan's Lease without
first obtaining Purchaser's prior written consent; provided however, they may
collect rent and otherwise derive the economic benefits under the Nathan's
Lease. Until the Closing, Seller shall perform all covenants and obligations of
tenant under the Nathan's lease, and shall comply with all conditions required
by the Nathan's Lease to be performed or complied
with prior to the Closing. Seller shall deliver to Purchaser copies of any
notice or other communication delivered by Landlord or otherwise relating to the
Ida's Property. Further, Seller shall deliver to Landlord any notice or other
communication requested by Purchaser. Seller and Tenant shall not grant or
withhold any consent or approval which it is required or permitted to give
pursuant to the Nathan's Lease or waive or refuse to waive any condition or
provision thereof or take or fail to take any other action with respect thereto,
without first giving Purchaser written notice of any proposed consent or
approval or waiver or other action, and Seller shall grant or deny any
reasonable consent or approval or waiver or take or forbear taking any action as
Purchaser shall direct.
(e) In the event, for any reason, Landlord does not approve of the
assignment of the Nathan's Lease to Purchaser, Seller shall, at the direction
and cost of Purchaser (and using counsel directed by Purchaser), commence an
action to pursue the rights of Seller to assign the Nathan's Lease to Purchaser.
Seller shall use its best efforts to obtain the assignment under the direction
of Purchaser. Seller does not warrant that it will be successful in its efforts
to assign the Nathan's Lease, and Seller's degree of success shall have no
bearing on Purchaser's obligation to pay the Assignment Price and to comply with
the terms of subsection (f) hereunder.
(f) Purchaser agrees that after the Closing:
(i) Purchaser and its affiliates shall not permit any occupant or
tenant of the Premises or Ida's Property to sell frankfurters or hot dogs except
for Seller;
(ii) Upon the completion of development plans for the stuctures to be
built upon the Land and the Ida's Property (the "Development"), and prior to the
commencement of any leasing activities in connection therewith, Purchaser shall
offer Seller the first opportunity to lease space within the Development for the
purpose of operating one or more "Nathan's Famous" restaurants therein. The
rights granted to Seller in this subparagraph shall be on a one-time only basis
(i.e., should Seller fail to accept to lease such offered space, Purchaser shall
have no further obligation to continue to offer Seller the right to lease space
within the Development).
(iii) Purchaser will assume, pay and discharge all liabilities and
obligations of the tenant under the Nathan's Lease, whether or not the Nathan's
Lease has been assigned to Purchaser.
(g) Seller agrees that as of the Closing, all benefits under the Sublease
shall be assigned to Purchaser, including the right to collect rent and
additional rent.
(h) The provisions of this Section 20 shall survive the Closing.
21. INDEMNIFICATION.
---------------
Seller shall defend, indemnify, and hold harmless Purchaser from all loss,
expense (including reasonable counsel fees), damage, and liability resulting
from (a) claims of mechanics and materialmen based on work performed on or at
the Property prior to the Closing, (b) claims of whatever nature (including,
without limitation, for bodily injury, wrongful death, or property damage)
against Purchaser or the Property based on causes of action which arose or
accrued prior to the Closing, and (c) claims by Tenants, employees, contractors
under Service Contracts,
or utility companies, with respect to matters that occurred or obligations which
accrued prior to the Closing.
22. MISCELLANEOUS.
-------------
22.1 Each individual and entity executing this Agreement hereby represents
and warrants that he, she or it has the capacity set forth on the signature
pages hereof with full power and authority to bind the party on whose behalf he,
she or it is executing this Agreement to the terms hereof.
22.2 This Agreement is the entire Agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, whether oral or written, between the parties with respect to the
matters contained in this Agreement Any waiver, modification, consent or
acquiescence with respect to any provision of this Agreement shall be set forth
in writing and duly executed by or in behalf of the party to be bound thereby.
No waiver by any party of any breach hereunder shall be deemed a waiver of any
other or subsequent breach.
22.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original. but all of which when taken together shall
constitute one and the same instrument. The signature page of any counterpart
may be detached therefrom without impairing the legal effect of the signature(s)
thereon provided such signature page is attached to any other counterpart
identical thereto except having additional signature pages executed by other
parties to this Agreement attached thereto.
22.4 Any communication, notice or demand of any kind whatsoever which
either party may be required or may desire to give to or serve upon the other
shall be in writing and delivered by personal service (including nationally
recognized overnight courier (e.g., Federal Express) or courier service), by
----
electronic communication, whether by telex, telegram or facsimile (if confirmed
in writing sent by registered or certified mail, postage prepaid, return receipt
requested), or by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
Purchaser: Thor Realty, LLC
139 Fifth Avenue
New York, NY 10010
Attention: Joseph J. Sitt
Telephone: (212) 529-5055
Facsimile: (212) 460-9200
With a copy to: Morris Missry, Esq.
Wachtel & Masyr, LLP
110 East 59th Street
New York, New York 10022
Telephone: (212) 909-9500
Facsimile: (212) 909-9448
Seller: Nathan's Famous Operating Corp.
1400 Old Country Road, Ste. 400
Westbury, NY 11590
Attention: Eric Gatoff
Telephone: 516-338-8500
Facsimile: 516-338-7220
With a copy to: Kramer, Coleman, Wactlar & Lieberman, P.C.
100 Jericho Quadrangle
Jericho, New York 11753
Attention: Edward I. Kramer, Esq.
Telephone: (516) 822-4820
Facsimile: (516) 822-4824
Any party may change its address for notice by written notice given to the other
in the manner provided in this Section. Any such communication, notice or demand
shall be deemed to have been duly given or served on the date personally served,
if by personal service, on the date of confirmed dispatch, if by electronic
communication, or three (3) days after being placed in the U.S. Mail, if mailed.
22.5 The parties agree to execute such instructions to Title Company and
such other instruments and to do such further acts as may be reasonably
necessary to carry out the provisions of this Agreement.
22.6 The making, execution and delivery of this Agreement by the parties
hereto has been induced by no representations, statements, warranties or
agreements other than those expressly set forth herein.
22.7 Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be valid under applicable law, but, if any
provision of this Agreement shall be invalid or prohibited thereunder, such
invalidity or prohibition shall be construed as if such invalid or prohibited
provision had not been inserted herein and shall not affect the remainder of
such provision or the remaining provisions of this Agreement.
22.8 The language in all parts of this Agreement shall be in all cases
construed simply according to its fair meaning and not strictly for or against
any of the parties hereto. Section headings of this Agreement are solely for
convenience of reference and shall not govern the interpretation of any of the
provisions of this Agreement. References to "Sections" are to Sections of this
Agreement, unless otherwise specifically provided.
22.9 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
22.10 If any action is brought by either party against the other party,
relating to or arising out of this Agreement, the transaction described herein
or the enforcement hereof, the prevailing party shall be entitled to recover
from the other party reasonable attorneys' fees, costs and expenses incurred in
connection with the prosecution or defense of such action. For purposes of this
Agreement, the term "attorneys' fees" or "attorneys' fees and costs" shall mean
the fees and expenses of counsel to the parties hereto, which may include
printing, photostating, duplicating and other expenses, air freight charges, and
fees billed for law clerks, paralegals and
other persons not admitted to the bar but performing services under the
supervision of an attorney, and the costs and fees incurred in connection with
the enforcement or collection of any judgment obtained in any such proceeding.
The provisions of this Section 22.11 shall survive the entry of any judgment,
--------------
and shall not merge, or be deemed to have merged, into any judgment.
22.11 This Agreement shall be binding upon and inure to the benefit of each
of the parties hereto and to their respective transferees, successors, and
assigns. Neither this Agreement nor any of the rights or obligations of Seller
or Purchaser hereunder shall be transferred or assigned by Seller or Purchaser
without the prior written consent of the non-assigning party, except that
Purchaser may assign its interest hereunder to any affiliate without Seller's
consent.
22.12 Exhibits A through G inclusive, attached hereto are incorporated
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herein by reference.
22.13 Notwithstanding anything to the contrary contained herein, this
Agreement shall not be deemed or construed to make the parties hereto partners
or joint venturers, or to render either party liable for any of the debts or
obligations of the other, it being the intention of the parties to merely create
the relationship of Seller and Purchaser with respect to the Property to be
conveyed as contemplated hereby.
22.14 A memorandum of this Agreement may be recorded or filed in the public
land or other public records of any jurisdiction by either party and each party
agrees to execute such memorandum upon the request of the other party.
22.15 Each party agrees that except as otherwise set forth in this
Agreement or provided by law or unless compelled by an order of a court it shall
keep the contents of this Agreement and any information related to the
transaction contemplated hereby confidential (except that Purchaser may disclose
such, matters in accordance with the provisions of Section 9 above) and further
---------
agrees to refrain from or participating in any publicity statement, press
release, or other public notice regarding this transaction without the prior
written consent of the other party unless required under applicable law or by a
court order.
22.16 Seller and Purchaser agree that it is their specific intent that no
broker shall be a party to or a third party beneficiary of this Agreement; and
further that the consent of a broker shall not be necessary to any agreement,
amendment, or document with respect to the transaction contemplated by this
Agreement.
22.18 In the event that any of the dates specified in this Agreement shall
fall on a Saturday, a Sunday, or a holiday, then the date of such action shall
be deemed to be extended to the next business day.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
SELLER: NATHAN'S FAMOUS OPERATING CORP.
A Delaware corporation
By: \s\Wayne Norbitz, Pres.
-------------------------------
Name: Wayne Norbitz
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Its: President
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PURCHASER: THOR REALTY, LLC
A New York limited liability company
By: \s\Joseph J. Sitt
------------------------------
Name: Joseph J. Sitt
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Its: President
-----------------------------