[Execution Copy]
AMENDMENT NO. 1 TO PARTNERSHIP
INTEREST TRANSFER AGREEMENT
This is AMENDMENT NO. 1, dated as of March __, 1999, to the
PARTNERSHIP INTEREST TRANSFER AGREEMENT dated as of April 15, 1997 (the
"Agreement"), and is among Starwood Hotels and Resorts Worldwide, Inc., a
Maryland corporation ("Starwood"), ITT Corporation, a Nevada corporation
("ITT"), ITT Eden Corporation, a Delaware corporation ("ITTE"), ITT MSG Inc., a
Delaware corporation ("ITT MSG"), Cablevision Systems Corporation, a Delaware
corporation ("Cablevision"), Rainbow Media Holdings, Inc., a Delaware
corporation ("RMHI"), Rainbow Garden Corp., a Delaware corporation ("RGC"),
Garden L.P. Holding Corp., a Delaware corporation ("GHC"), MSG Eden Corporation,
a Delaware corporation ("MSGE"), and Madison Square Garden, L.P., a Delaware
limited partnership ("MSG") (this "Amendment"). Starwood, ITT, ITTE and ITT MSG
are referred to herein collectively as the "Starwood Entities", and Cablevision,
RMHI, RGC, GHC, MSGE and MSG are referred to herein collectively as the
"Cablevision Entities". Capitalized terms used in this Amendment and not
otherwise defined herein shall have them meaning assigned thereto in the
Agreement.
WHEREAS, ITT, ITTE, ITT MSG, Cablevision, RMHI, RGC, GHC, MSGE and
MSG are parties to the Agreement;
WHEREAS, pursuant to Section 2.03 of the Agreement, ITT MSG
exercised the First Put Option and MSG redeemed the Second Transferred Interest
for the First Put Purchase Price on June 17, 1998;
WHEREAS, the parties to the Agreement desire to amend the Agreement
to provide for (a) the acceleration of the Second Put Option and (b) the
revision of the Second Put Purchase Price, and to acknowledge and agree to the
release, waiver and discharge of Claims (as defined in the Releases attached as
Exhibits A and B hereto);
NOW, THEREFORE, in consideration of the premises and
representations, warranties, covenants and agreements set forth herein, the
parties hereto hereby agree as follows:
SECTION 1. Amendment to Section 2.04 of the Agreement. Section 2.04
of the Agreement is hereby amended in its entirety as follows:
SECTION 2.04. Purchase of Remaining MSG ITT Interest. (a) In
addition to the First Put Option and upon the terms and subject to the
conditions set forth in this Agreement, ITT MSG shall have the option (the
"Second Put Option"; each of the First Put Option and Second Put Option
may be hereinafter referred to as a "Put Option") to require Cablevision
to purchase, or, at the election of Cablevision, MSG to redeem, the
balance of the remaining ITT MSG Interest such that immediately following
such transfer or redemption, ITT MSG does not beneficially own an ITT MSG
Interest (the ITT MSG Interest so transferred or redeemed hereunder is
referred to as the "Third Transferred Interest"), on the Second Put Cash
Closing Date for a purchase price of $87 million in cash (such purchase
price, the "Second Put Purchase Price"; each of the First Put Purchase
Price and the Second Put Purchase Price may be hereinafter referred to as
a "Put Purchase Price"). If ITT MSG exercises the Second Put Option,
Cablevision shall purchase, or, at the election of Cablevision, cause MSG
to redeem, the Third Transferred Interest pursuant to the terms of this
Agreement.
(b) Manner of Exercise of the Second Put Option. ITT MSG's execution
and delivery of Amendment No. 1 to this Agreement shall be deemed to be
the exercise of the Second Put Option for all purposes of this Agreement
and such exercise shall be irrevocable.
(c) Cablevision Obligation. Cablevision acknowledges and agrees that
the obligation to pay the Second Put Purchase Price upon the exercise by
ITT MSG of the Second Put Option is and shall remain an obligation of
Cablevision, whether or not Cablevision elects to have MSG pay such Second
Put Purchase Price or has the ability to control MSG.
SECTION 2. Amendment to Section 2.05(b) of the Agreement. Section
2.05(b) of the Agreement is hereby
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amended in its entirety as follows:
(b) The closing of the Second Put Option (the "Second Put Cash
Closing") shall be held at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 a.m., New York City time, as soon as
practicable after the conditions to the Second Put Cash Closing set forth
in Section 3 of Amendment No. 1 to this Agreement dated as of March __,
1999 have been satisfied or waived. The date on which the Second Put Cash
Closing shall occur is hereinafter referred to as the "Second Put Cash
Closing Date". At the Second Put Cash Closing (i) Cablevision shall
deliver, or cause to be delivered by MSG, to ITT MSG, by wire transfer to
a bank account designated by ITT MSG at least two business days prior to
the Second Put Cash Closing Date, immediately available funds in an amount
equal to the Second Put Purchase Price and (ii) ITT MSG shall deliver to
Cablevision or MSG, as the case may be, a ▇▇▇▇ of Sale and Assignment of
Partnership Interest in the form of Exhibit A to effect delivery of title
to the Third Transferred Interest.
SECTION 3. Exercise of Second Put Option; Conditions. (a) On the
date of this Amendment and by the execution hereof by ITT MSG, ITT MSG shall be
deemed to have irrevocably exercised the Second Put Option and the parties
hereto agree that such deemed exercise of the Second Put Option shall be
effective for all purposes of the Agreement.
(b) Conditions to the Obligations of Cablevision Entities. The
obligations of each of the Cablevision Entities to consummate the Second Put
Cash Closing are subject to the satisfaction (or waiver by the Cablevision
Entities) as of the time of the Second Put Cash Closing of the following
conditions:
(i) The representations and warranties of each of ITTE and ITT
MSG made in the Agreement shall be true and correct, as of the date
of the Second Put Cash Closing as though made as of such time,
except to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations and
warranties shall be true and correct on and as of such earlier
date). ITTE and ITT MSG shall have
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performed or complied in all material respects with all obligations
and covenants required by the Agreement to be performed or complied
with by each of them by the time of the Second Put Cash Closing. ITT
MSG shall have delivered to Cablevision a certificate dated the
Second Put Cash Closing Date and signed by an authorized officer of
ITT MSG confirming the foregoing.
(ii) MSG shall have received an opinion dated the Second Put
Cash Closing Date of the general counsel or an officer responsible
for legal affairs of Starwood in form and substance reasonably
satisfactory to Cablevision.
(iii) No statute, rule, regulation, executive order, decree,
temporary restraining order, preliminary or permanent injunction or
other order enacted, entered, promulgated, enforced or issued by any
Governmental Entity or other legal restraint or prohibition shall be
in force and have the effect of preventing the consummation of the
transactions contemplated to occur at the Second Put Cash Closing.
(iv) Any waiting period under the HSR Act applicable to the
transactions contemplated to occur at the Second Put Cash Closing
shall have expired or been terminated.
(v) All necessary approvals from the NBA and the NHL in
accordance with the League Rules to enable the Cablevision Entities
to consummate the transactions contemplated to occur at the Second
Put Cash Closing shall have been received and such approvals shall
be in effect.
(vi) The Release, in the form attached as Exhibit A to this
Amendment, shall be executed and delivered by each of the Starwood
Entities.
(c) Conditions to the Obligations of Starwood Entities. The
obligations of each of the Starwood Entities to consummate the Second Put Cash
Closing are subject to the satisfaction (or waiver by the Starwood Entities) as
of the
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time of the Second Put Cash Closing of the following conditions:
(i) The representations and warranties of Cablevision, RGC,
GHC and MSG made in the Agreement shall be true and correct, as of
the date of the Second Put Cash Closing as though made as of such
time, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct on and as
of such earlier date). Cablevision, RGC, GHC and MSG shall have
performed or complied in all material respects with all obligations
and covenants required by the Agreement to be performed or complied
with by each of them by the time of the Second Put Cash Closing.
Cablevision shall have delivered to ITT MSG a certificate dated such
Closing Date and signed by an authorized officer of Cablevision
confirming the foregoing.
(ii) ITT MSG shall have received an opinion dated the Second
Put Cash Closing Date of the general counsel of MSG, in form and
substance reasonably satisfactory to ITT MSG.
(iii) No statute, rule, regulation, executive order, decree,
temporary restraining order, preliminary or permanent injunction or
other order enacted, entered, promulgated, enforced or issued by any
Governmental Entity or other legal restraint or prohibition shall be
in force and have the effect of preventing the consummation of the
transactions contemplated to occur at the Second Put Cash Closing.
(iv) Any waiting period under the HSR Act applicable to the
transactions contemplated to occur at the Second Put Cash Closing
shall have expired or been terminated.
(v) All necessary approvals from the NBA and the NHL in
accordance with the League Rules to enable the Cablevision Entities
to consummate all the transactions contemplated to occur at the
Second Put Cash Closing shall have been received
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and such approvals shall be in effect.
(vi) The Release, in the form attached as Exhibit B to this
Amendment, shall be executed and delivered by each of the
Cablevision Entities.
SECTION 4. General Waiver and Release. On the Second Put Cash
Closing Date, the parties hereto shall execute and deliver the Releases, in the
forms attached as Exhibits A and B to this Amendment. The Releases shall be
effective on the Second Put Cash Closing Date.
SECTION 5. Representations and Warranties; Other Agreements. (i)
Each Releasor (as defined in the applicable Release) hereby represents and
warrants that it is the sole and lawful owner of all right, title and interest
in and to every Claim (as defined in the applicable Release) which such Releasor
has agreed to release pursuant to the applicable Release. Each Releasor
represents and warrants that it has not assigned or transferred or purported to
assign or transfer, and agrees that it will not assign or transfer, or purport
to assign or transfer, to any person, any Claims released therein. Each Releasor
shall indemnify, defend and hold harmless the Releasees (as defined in the
applicable Release), and each of them, from and against any Claims based upon or
arising in connection with any such assignment or transfer. Each Releasor
represents that it has not filed any Claims in any jurisdiction against any
Releasees regarding or relating to the matters released through the applicable
Release.
(ii) Each of ITTE and ITT MSG hereby represents and warrants to
Cablevision, RGC and GHC that the representations and warranties of each of ITTE
and ITT MSG made in the Agreement are true and correct as of the date hereof as
though made as of the date hereof, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct on and as of such
earlier date). Each of Cablevision, RGC and GHC hereby represents and warrants
to ITTE and ITT MSG that the representations and warranties of each of
Cablevision, RGC and GHC made in the Agreement are true and correct as of the
date hereof as though made as of the date hereof, except to the extent such
representations and warranties expressly
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relate to an earlier date (in which case such representations and warranties
shall be true and correct on and as of such earlier date).
SECTION 6. Assignment. This Amendment, the Releases and the rights
and obligations hereunder and thereunder shall not be assignable by any of the
parties hereto without the prior written consent of Cablevision and Starwood.
SECTION 7. Successors and Assigns; No Third-Party Beneficiaries.
This Amendment and the Releases shall be binding on the parties hereto and their
respective permitted successors and permitted assigns. This Amendment and the
Releases are for the sole benefit of the parties hereto and thereto and their
permitted assigns and nothing herein or therein expressed or implied shall give
or be construed to give to any person, other than the parties hereto and thereto
and such assigns and the persons released and discharged pursuant to the
Releases, any legal or equitable rights hereunder and thereunder.
SECTION 8. Amendments. No amendment, modification or waiver in
respect of this Amendment or the Releases shall be effective unless it shall be
in writing and signed by the party against which it is enforced.
SECTION 9. Notices. All notices or other communications required or
permitted to be given hereunder or under the Releases shall be in writing and
shall be deemed to have been duly given (i) on the date of delivery if delivered
personally, or by telecopy or telefacsimile, upon confirmation of receipt, (ii)
on the second business day following the date of dispatch if delivered by
Federal Express or other nationally reputable next-day courier service or (iii)
on the third business day following the date of mailing if delivered by
registered or certified mail, return receipt requested, postage prepaid. All
notices hereunder or under the Releases shall be delivered as set forth below,
or pursuant to such other instructions as may be designated in writing by the
party to receive such notice, as follows:
(i) if to Cablevision, RMHI, RGC, GHC or MSG,
Cablevision Systems Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-▇-
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq.; and
(ii) if to Starwood, ITT, ITTE or ITT MSG,
Starwood Hotels & Resorts Worldwide, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
with a copy to:
Cravath, Swaine & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
SECTION 10. Confidentiality. Except as may be necessary to enforce
the provisions of the Agreement, no party hereto shall hereafter issue any press
release or make any other public statement, filing or report that includes
information with respect to the Agreement or the transactions contemplated
thereby without submitting such release, statement, filing or report to the
other parties sufficiently in advance of its issuance to afford the other
parties a reasonable opportunity to review and comment thereon. The parties will
consult with each other in good faith with respect to the need for and substance
of any such release, statement, filing or report, the timing of its issuance and
the means and extent of its dissemination. If
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a party determines to make public disclosure of information that is subject to
this Section 10, it shall coordinate the contents and timing of its disclosure
with the other parties, and the parties shall make such disclosure jointly
wherever convenient or appropriate.
SECTION 11. Specific Performance. In the event of any actual or
threatened default in, or breach of, any of the terms, covenants, conditions and
provisions of this Amendment, the party or parties who are or are to be thereby
adversely affected, in addition to any and all other rights and remedies at law
or in equity, shall have the right of specific performance and injunctive relief
giving effect to its or their rights under this Amendment and all such rights
and remedies shall be cumulative. The parties agree that the remedies at law for
any breach or threatened breach, including monetary damages, are inadequate
compensation for any loss, that the adversely affected party or parties shall be
entitled to obtain specific performance and injunctive relief without the
necessity or proving irreparable injury or posting bond or other security, and
that any defense in any action for specific performance or injunctive relief
that a remedy at law would be adequate is waived.
SECTION 12. Counterparts. This Amendment may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties.
SECTION 13. Consent to Jurisdiction. Each of the parties hereto
irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of
the State of New York, New York County, and (b) the United States District Court
for the Southern District of New York, for the purposes of any suit, action or
other proceeding arising out of this Amendment and the Release or any
transaction contemplated hereby or thereby. Each of the parties hereto and to
the Release agrees to commence any action, suit or proceeding relating hereto
either in the United States District Court for the Southern District of New York
or if such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of the parties hereto and to the Release further agrees that
service of any process, summons, notice or document by U.S.
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registered mail to such party's respective address set forth above shall be
effective service of process for any action, suit or proceeding in New York with
respect to any matters to which it has submitted to jurisdiction in this Section
11. Each of the parties hereto and to the Release irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Amendment and the Release or the transactions
contemplated hereby or thereby in (i) the Supreme Court of the State of New
York, New York County, or (ii) the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
SECTION 14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE AND WITHOUT
REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed as of the date first written above.
STARWOOD HOTELS AND RESORTS
WORLDWIDE, INC.
By:
--------------------------------
Name:
Title:
ITT CORPORATION
By:
--------------------------------
Name:
Title:
ITT EDEN CORPORATION
By:
--------------------------------
Name:
Title:
ITT MSG INC.
By:
--------------------------------
Name:
Title:
CABLEVISION SYSTEMS CORPORATION
By:
--------------------------------
Name:
Title:
RAINBOW MEDIA HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
RAINBOW GARDEN CORP.
By:
--------------------------------
Name:
Title:
-▇▇-
▇▇▇▇▇▇ ▇.▇. HOLDING CORP.
By:
--------------------------------
Name:
Title:
MSG EDEN CORPORATION
By:
--------------------------------
Name:
Title:
MADISON SQUARE GARDEN, L.P.,
By: MSG Eden Corporation,
as general partner
By:
--------------------------------
Name:
Title:
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