Exhibit 10.1
EXECUTION VERSION
LEASE AGREEMENT
by and between
620 EIGHTH NYT (NY) LIMITED PARTNERSHIP,
a Delaware limited partnership
as LANDLORD
and
NYT REAL ESTATE COMPANY LLC,
a New York limited liability company,
as TENANT
Premises: Leasehold Condominium
New York Times Building
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Dated as of: March 6, 2009
TABLE OF CONTENTS
Page
----
1. Demise of Premises...................................................... 2
2. Certain Definitions..................................................... 2
3. Title and Condition..................................................... 11
4. Use of Leased Premises; Quiet Enjoyment................................. 13
5. Term.................................................................... 15
6. Basic Rent.............................................................. 17
7. Additional Rent......................................................... 17
8. Net Lease; Non-Terminability............................................ 18
9. Payment of Impositions.................................................. 19
10. Compliance with Laws and Easement Agreements, Environmental Matters..... 20
11. Liens; Recording........................................................ 22
12. Maintenance and Repair.................................................. 23
13. Alterations and Improvements............................................ 24
14. Permitted Contests...................................................... 26
15. Indemnification......................................................... 26
16. Insurance............................................................... 28
17. Casualty and Condemnation............................................... 32
18. Termination Events...................................................... 34
19. Restoration............................................................. 35
20. Procedures Upon Purchase................................................ 37
21. Assignment and Subletting, Prohibition Against Leasehold Financing...... 38
22. Events of Default....................................................... 43
23. Remedies and Damages upon Default....................................... 46
24. Notices................................................................. 50
25. Estoppel Certificate.................................................... 51
26. Surrender............................................................... 51
27. No Merger of Title...................................................... 51
28. Books and Records....................................................... 51
29. Determination of Value.................................................. 53
30. Non-Recourse as to Landlord............................................. 54
31. Financing............................................................... 55
32. Subordination, Non-Disturbance and Attornment; Landlord's Waiver........ 57
33. Tax Treatment; Reporting................................................ 58
34. Option to Purchase...................................................... 59
35. Right of First Offer.................................................... 61
36. Miscellaneous........................................................... 63
37. Security Deposit........................................................ 66
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EXHIBITS
Exhibit "A" - Premises
Exhibit "B" - Machinery and Equipment
Exhibit "C" - Schedule of Permitted Encumbrances
Exhibit "D" - Rent Schedule
Exhibit "E" - Default Termination Yield Schedule
Exhibit "F" - Form of Notice to Extend Term
Exhibit "G" - Form of Landlord SNDA
Exhibit "H" - Intentionally Omitted
Exhibit "I" - Form of Beneficial Assignment
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LEASE AGREEMENT, made as of March 6, 2009, between 620 EIGHTH NYT (NY)
LIMITED PARTNERSHIP, a Delaware limited partnership ("Landlord"), with an
address c/o W.P. Xxxxx & Co. LLC, 00 Xxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, and NYT REAL ESTATE COMPANY, LLC, a New York limited liability
company, ("Tenant"), with an address at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
Concurrently with the execution of this Lease, Landlord has paid to
Tenant the Acquisition Cost (less agreed closing and transaction costs)
consistent with the terms of that certain Agreement of Purchase & Sale, dated as
of the date of this Lease, by and between Landlord, as Buyer, and Tenant, as
Seller (the "PSA"), and in consideration thereof and as further evidence of and
security for such transaction, Tenant has executed and delivered to Landlord (or
has caused to be executed and delivered to Landlord) the Assignment of Severance
Lease, the Landlord Mortgage, this Lease, the Guaranty and such other documents,
certificates and/or instruments as required under the PSA or otherwise mutually
agreed between Landlord and Tenant to consummate the transaction (the
"Transaction Documents"). Prior to entering into the Transaction Documents,
Tenant and The New York Times Company engaged a nationally recognized real
estate brokerage firm and made substantial marketing efforts in order to secure
the best economic result for Tenant and The New York Times Company from the
financing and/or sale-leaseback of the Leased Premises and have selected the
transaction as evidenced by the Transaction Documents (including the Acquisition
Cost) constitutes the best option for monetizing the Leased Premises under
circumstances acceptable to Tenant and The New York Times Company and
constitutes fair and reasonably equivalent value to Tenant and the New York
Times Company.
LANDLORD AND TENANT AGREE THAT IT IS THEIR MUTUAL AND EXPRESS INTENT
TO CREATE, AND THAT THIS LEASE CONSTITUTES A PART OF, A SINGLE LEASE
TRANSACTION, AND THAT NEITHER THIS LEASE NOR ANY PART HEREOF (INCLUDING THE
PURCHASE OPTION) OR THE RIGHTS CONTAINED HEREIN ARE INTENDED OR SHALL BE
CONSTRUED TO BE SEPARATE AND APART FROM THE TRANSACTION DOCUMENTS AND THE RIGHTS
OR OBLIGATIONS THEREUNDER.
THEREFORE, TENANT, ON BEHALF OF ITSELF AND ANY TRUSTEE OR LEGAL
REPRESENTATIVE (UNDER THE FEDERAL BANKRUPTCY CODE OR ANY SIMILAR STATE
INSOLVENCY PROCEEDING) EXPRESSLY ACKNOWLEDGES AND AGREES THAT IT IS THE EXPRESS
INTENT OF LANDLORD AND TENANT THAT NEITHER THIS LEASE NOR ANY PART THEREOF SHALL
BE (OR BE DEEMED TO BE) DIVISIBLE OR SEVERABLE INTO SEPARATE AGREEMENTS FOR ANY
PURPOSE WHATSOEVER, AND TENANT, ON BEHALF OF ITSELF AND ANY SUCH TRUSTEE OR
LEGAL REPRESENTATIVE, HEREBY WAIVES ANY RIGHT TO CLAIM OR ASSERT A CONTRARY
POSITION IN ANY ACTION OR PROCEEDING. THE FOREGOING AGREEMENTS AND WAIVERS BY
TENANT IN THIS PARAGRAPH ARE MADE AS A MATERIAL INDUCEMENT TO LANDLORD TO ENTER
INTO THE TRANSACTION CONTEMPLATED BY THE TRANSACTION DOCUMENTS AND THAT, BUT FOR
THE FOREGOING AGREEMENTS AND WAIVERS BY TENANT, LANDLORD WOULD NOT CONSUMMATE
THIS TRANSACTION.
In consideration of the rents and provisions herein stipulated to be
paid and performed, Landlord and Tenant hereby covenant and agree as follows:
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1. Demise of Premises. Landlord hereby demises and lets to Tenant, and
Tenant hereby takes and leases from Landlord, for the term and upon the
provisions hereinafter specified, the following described property
(collectively, the "Leased Premises"): (a) the leasehold condominium units more
particularly described and identified by tax lots in Exhibit "A" attached hereto
consisting of (i) Floors 2 through 20 containing approximately 712,000 rentable
square feet, (ii) NYTC Unit Owner's (as defined in the Declaration) portions of
the cellar (the "Cellar Space") and Floors 28 and 51, containing approximately
53,000 square feet, and (iii) the NYTC Unit Owner's fractional undivided
interest in approximately 100,000 square feet of common elements or limited
common elements of the Condominium (as defined below) appurtenant thereto
(collectively, the "Unit"), all located in the building known as "The New York
Times Building" and having a street address of 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Building"), (b) all other Appurtenances and any structures and
other improvements now or hereafter constructed within the Unit or which are
located on or about the Building and which serve only the Unit or which
otherwise constitute a part thereof under the terms of the Condominium Documents
(as defined below) (collectively, the "Improvements"), and (c) the fixtures,
machinery, equipment and other property described in Exhibit "B" hereto located
within the Unit or on or about the Building and which serve only the Unit or
which otherwise constitute a part thereof under the terms of the Condominium
Documents, but specifically excluding Tenant's Personal Property (collectively,
the "Equipment").
2. Certain Definitions.
"Acquisition Cost" shall mean amount of $225,000,000.
"Acquisition Fee" shall mean the amount of $8,720,222.51
"Additional Rent" shall mean Additional Rent as defined in
Paragraph 7.
"Affiliate" of any Person shall mean any Person which shall (i)
control, (ii) be under the control of, or (iii) be under common control with
such Person (the term "control" as used herein shall be deemed to mean ownership
of more than 50% of the outstanding voting stock of a corporation or other
majority equity and control interest if such Person is not a corporation) and
the power to direct or cause the direction of the management or policies of such
Person.
"Alterations" shall mean all changes, additions, improvements or
repairs to, all alterations, reconstructions, restorations, renewals,
replacements or removals of and all substitutions or replacements for any of the
Improvements or Equipment, both interior and exterior, structural and
non-structural, and ordinary and extraordinary.
"Appurtenances" shall mean all tenements, hereditaments,
easements, rights-of-way, rights, privileges in and to the Building or the land
upon which it is constructed and which constitutes a part of the Condominium
(the "Land"), including (a) easements over other lands granted by any Easement
Agreement, (b) any streets, ways, alleys, vaults, gores or strips of land
adjoining the Land and (c) any and all rights to the use or enjoyment of, or
access to, any other portion of the Condominium under the terms or provisions of
the Condominium Documents or the Severance Lease.
"Asset Transfer" shall mean Asset Transfer as defined in
Paragraph 21(j).
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"Assignment" shall mean any assignment of rents and leases from
Landlord to a Lender which (a) encumbers any of the Leased Premises or
Landlord's interest therein and (b) secures Landlord's obligation to repay a
Loan, as the same may be amended, supplemented or modified from time to time.
"Assignment of Severance Lease" shall mean the Assignment and
Assumption of Severance Lease, dated as of the date of this Lease, by and
between Tenant, as assignor, and Landlord, as assignee, pursuant to which Tenant
assigned all of it rights title and interest as lessee under the Severance Lease
to Landlord.
"Basic Rent" shall mean Basic Rent as defined in Paragraph 6.
"Basic Rent Payment Date" shall mean Basic Rent Payment Date as
defined in Paragraph 6.
"Basic Rent Payment Date" shall mean Basic Rent Payment Date as
defined in Paragraph 6.
"Beneficial Transfer Documents" shall mean, collectively (i) the
True Assignment, (ii) a written waiver of any right of redemption by Tenant with
respect to the Leased Premises and, to the fullest extent permitted by
applicable law, a waiver of all rights, claims or defenses available to a
mortgagor under the Laws of the State including any right to assert that the
Lease continues to constitute a financing lease from and after the occurrence of
the Option Lapse Date, (iii) an acknowledgement of the treatment of this Lease
as a true lease for the balance of the Term in accordance with Paragraph 33(b)
from and after the occurrence of the Option Lapse Date, (iv) a certified check
in an amount equal to the amount of all State and New York City transfer taxes
due in connection with the recording of the True Assignment, made payable to or
at the direction of Landlord, (v) a certified check in an amount equal to all
Costs incurred by Landlord in connection with the transactions contemplated by
the Beneficial Transfer Documents and (vi) a certified check in an amount equal
to the actual costs to obtain a Leasehold Owners ALTA Policy of Title Insurance
in favor of Landlord with respect to the Leased Premises effective as of the
date of the transfer of beneficial title contemplated hereby, subject only to
the Permitted Exceptions and otherwise reasonably satisfactory to Landlord,
together with such other customary affidavits or certificates requested by the
applicable land title insurance company to issue such policy.
"Casualty" shall mean any damage to or destruction of or which
affects the Leased Premises.
"Commencement Date" shall mean Commencement Date as defined in
Paragraph 5.
"Condemnation" shall mean a Taking and/or a Requisition.
"Condemnation Notice" shall mean notice or knowledge of the
institution of or intention to institute any proceeding for Condemnation.
"Condominium" shall mean the commercial condominium regime
created pursuant to the Declaration, including the Building and the Land.
"Condominium Act" shall mean Article 9-B (Condominium Act) of the
New York Real Property Law (Section 339-d et seq.).
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"Condominium Board" shall mean the nine (9) member Board of
Managers of the Condominium established by the terms of the Declaration and
By-Laws.
"Condominium Declaration" shall mean that certain declaration,
dated as of August 4, 2006 made by The New York Times Building LLC pursuant to
the Condominium Act establishing condominium ownership of the Building and the
Land, which declaration was recorded in the Register's Office on August 15,
2006, as CRFN 2006000460293, as amended by that certain First Amendment to the
Declaration (the "First Amendment"), which First Amendment was dated as of
January 29, 2007, and recorded in the Register's Office on February 8, 2007 as
CRFN 2007000075106, and further amended by that certain Second Amendment to the
Declaration (the "Second Amendment"), which Second Amendment was dated October
11, 2007, and recorded in the Register's Office on January 8, 2008 as CRFN
2008000008735, and further amended by that certain Third Amendment to the
Declaration (the "Third Amendment"), which Third Amendment was dated March 6,
2009, and recorded in the Register's Office on ___________________ as
CRFN ___________________, including the By-Laws and Rules and Regulations
thereunder.
"Condominium Documents" shall mean collectively, (i) the
Condominium Declaration, and all the terms and provisions thereof, and (ii) the
Bylaws adopted by the Condominium Association pursuant to the Declaration (the
"Bylaws") and (iii) any rules or regulations adopted under the Condominium
Declaration or the Bylaws, in each case, now or hereafter in effect and as same
may be amended, restated, modified or supplemented from time to time.
"Condominium Expenses" shall mean the allocated share of all
expenses attributable to the management, operation, maintenance, repair and
security of the Condominium, including the parking and landscaped areas, which
are incurred by or payable by the owner of the Leased Premises (including the
undivided interest in the limited common elements and common elements of the
Condominium) pursuant to the Condominium Declaration or in accordance therewith,
without xxxx-up by Landlord.
"Costs" of a Person or associated with a specified transaction
shall mean all reasonable costs and expenses incurred by such Person or
associated with such transaction, including without limitation, reasonable
attorneys' fees and expenses, court costs, brokerage fees, escrow fees, title
insurance premiums, customary mortgage commitment fees and/or points, and
recording fees and transfer taxes, as the circumstances require.
"CPI" means the index known as United States Department of Labor,
Bureau of Labor Statistics, Consumer Price Index, All Urban Consumers, United
States City Average, All Items, (1982-84=100) or the successor index that most
closely approximates the CPI. If the CPI shall be discontinued with no successor
or comparable successor index, Landlord and Tenant shall attempt to agree upon a
substitute index or formula, but if they are unable to so agree, then the matter
shall be determined by arbitration in accordance with the rules of the American
Arbitration Association then prevailing in New York City. Any decision or award
resulting from such arbitration shall be final and binding upon Landlord and
Tenant and judgment thereon may be entered in any court of competent
jurisdiction.
"Default Rate" shall mean the Default Rate as defined in
Paragraph 7(a)(iv).
"Default Termination Yield" shall mean, with respect to any
default termination of this Lease at any time prior to the Option Lapse Date,
the amount set forth on
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Exhibit E annexed hereto for the applicable Lease Year in which this Lease is so
terminated, as a result of foreclosure or otherwise.
"Easement Agreement" shall mean any conditions, covenants,
restrictions, easements, declarations, licenses and other agreements listed as
Permitted Encumbrances or as may hereafter affect the Leased Premises.
"Environmental Law" shall mean (a) whenever enacted or
promulgated, any applicable federal, state and local law, statute, ordinance,
rule, regulation, license, permit, authorization, approval, consent, court
order, judgment, decree, injunction, code, requirement or agreement with any
governmental entity, (i) relating to pollution (or the cleanup thereof), or the
protection of air, water vapor, surface water, groundwater, drinking water
supply, land (including land surface or subsurface), plant, aquatic and animal
life from injury caused by a Hazardous Substance or (ii) concerning exposure to,
or the use, containment, storage, recycling, reclamation, reuse, treatment,
generation, discharge, transportation, processing, handling, labeling,
production, disposal or remediation of Hazardous Substances, Hazardous
Conditions or Hazardous Activities, in each case as amended and as now or
hereafter in effect, and (b) any common law or equitable doctrine (including,
without limitation, injunctive relief and tort doctrines such as negligence,
nuisance, trespass and strict liability) that may impose liability or
obligations for injuries or damages due to or threatened as a result of the
presence of, exposure to, or ingestion of, any Hazardous Substance. The term
Environmental Law includes, without limitation, the federal Comprehensive
Environmental Response Compensation and Liability Act of 1980, the Superfund
Amendments and Reauthorization Act, the federal Water Pollution Control Act, the
federal Clean Air Act, the federal Clean Water Act, the federal Resources
Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste
Amendments to RCRA), the federal Solid Waste Disposal Act, the federal Toxic
Substance Control Act, the federal Insecticide, Fungicide and Rodenticide Act,
the federal Occupational Safety and Health Act of 1970, the federal National
Environmental Policy Act and the federal Hazardous Materials Transportation Act,
each as amended and as now or hereafter in effect and any similar state or local
Law.
"Environmental Violation" shall mean (a) any direct or indirect
discharge, disposal, spillage, emission, escape, pumping, pouring, injection,
leaching, release, seepage, filtration or transporting of any Hazardous
Substance at, upon, under, onto or within the Leased Premises, or from the
Leased Premises to the environment, in violation of any Environmental Law or in
excess of any reportable quantity established under any Environmental Law or
which could result in any liability to Landlord, Tenant or Lender, any Federal,
state or local government or any other Person for the costs of any removal or
remedial action or natural resources damage or for bodily injury or property
damage, (b) any deposit, storage, dumping, placement or use of any Hazardous
Substance at, upon, under or within the Leased Premises or which extends to any
part of the Condominium in violation of any Environmental Law or in excess of
any reportable quantity established under any Environmental Law or which could
result in any liability to any Federal, state or local government or to any
other Person for the costs of any removal or remedial action or natural
resources damage or for bodily injury or property damage, (c) the abandonment or
discarding of any barrels, containers or other receptacles containing any
Hazardous Substances in violation of any Environmental Laws, (d) any activity,
occurrence or condition which could result in any liability, cost or expense to
Landlord or Lender or any other owner or occupier of the Leased Premises, or
which could result in a creation of a lien on the Leased Premises under any
Environmental Law, or (e) any violation of or noncompliance with any
Environmental Law.
"Equipment" shall mean the Equipment as defined in Paragraph 1.
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"Event of Default" shall mean an Event of Default as defined in
Paragraph 22(a).
"FMRV" shall mean the fair market rental value of the Leased
Premises as of the first day of the relevant Renewal Term as determined in
accordance with the procedure specified in Paragraph 29.
"Federal Funds" shall mean federal or other immediately available
funds which at the time of payment are legal tender for the payment of public
and private debts in the United States of America.
"Governing Documents" shall mean the Governing Documents as
defined in Paragraph 4(c) hereof.
"Ground Lease" shall mean that certain Agreement of Lease with
respect to the Land and Building of which the Leased Premises is a part, by and
between New York Times Building LLC and 42nd St. Development Project, Inc., a
subsidiary of New York State Urban Development Corporation d/b/a Empire State
Development Corporation ("ESDC"), a corporate governmental agency of the State
of New York constituting a political subdivision and public benefit corporation,
dated as of December 12, 2001, as amended by letter dated April 18, 2004, and as
otherwise heretofore amended, restated or assigned and as hereafter amended from
time to time.
"Guarantor" shall mean, collectively, (i) The New York Times
Company, a New York corporation and (ii) The New York Times Sales Company, a
Massachusetts business trust.
"Guaranty" shall mean the Guaranty and Suretyship Agreement dated
as of the date hereof from Guarantor to Landlord guaranteeing the payment and
performance by Tenant of all of Tenant's obligations under the Lease.
"Hazardous Activity" means any activity, process, procedure or
undertaking which directly or indirectly (a) procures, generates or creates any
Hazardous Substance; (b) causes or results in (or threatens to cause or result
in) the release, seepage, spill, leak, flow, discharge or emission of any
Hazardous Substance into the environment (including the air, ground water,
watercourses or water systems), (c) involves the containment or storage of any
Hazardous Substance; or (d) would cause the Leased Premises or any portion
thereof to become a hazardous waste treatment, recycling, reclamation,
processing, storage or disposal facility within the meaning of any Environmental
Law.
"Hazardous Condition" means any condition which would support any
claim or liability under any Environmental Law, including the presence of
underground storage tanks.
"Hazardous Substance" means (i) any substance, material, product,
petroleum, petroleum product, derivative, compound or mixture, mineral
(including asbestos), chemical, gas, medical waste, or other pollutant, in each
case whether naturally occurring, man-made or the by-product of any process,
that is toxic, harmful or hazardous or acutely hazardous to the environment or
public health or safety or (ii) any substance supporting a claim under any
Environmental Law, whether or not defined as hazardous as such under any
Environmental Law. Hazardous Substances include, without limitation, any toxic
or hazardous waste, pollutant, contaminant, industrial waste, petroleum or
petroleum-derived substances or waste, radon, radioactive materials, asbestos,
asbestos containing materials, microbial matter (including but not limited to
mold, mildew and other fungi or bacterial matter which reproduces through the
release
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of spores or the splitting of cells), urea formaldehyde foam insulation, lead
and polychlorinated biphenyls.
"Impositions" shall mean the Impositions as defined in Paragraph
9(a).
"Improvements" shall mean the Improvements as defined in
Paragraph 1.
"Indemnitee" shall mean an Indemnitee as defined in Paragraph 15.
"Insurance Requirements" shall mean the requirements of all
insurance policies required to be maintained in accordance with this Lease.
"Landlord Mortgage" shall mean that certain Wrap-Around Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing dated as of the date
hereof, by and among Tenant, as Mortgagor, and ESDC and Landlord, as
co-Mortgagees, as security, for the performance of Tenant's obligations under
this Lease, as same may be hereafter amended, modified, supplemented, assigned
or consolidated.
"Law" shall mean any constitution, statute, rule of law, code,
ordinance, order, judgment, decree, injunction, rule, regulation, policy,
requirement or administrative or judicial determination, even if unforeseen or
extraordinary, of every duly constituted governmental authority, court or
agency, now or hereafter enacted or in effect.
"Lease" shall mean this Lease Agreement.
"Lease Year" shall mean, with respect to the first Lease Year,
the period commencing on the Commencement Date and ending at midnight on the
last day of the twelfth (12th) full consecutive calendar month following the
month in which the Commencement Date occurred, and each succeeding twelve (12)
month period during the Term.
"Leased Premises" shall mean the Leased Premises as defined in
Paragraph 1.
"Legal Requirements" shall mean the requirements of all present
and future Laws (including but not limited to Environmental Laws and Laws
relating to accessibility to, usability by, and discrimination against, disabled
individuals) and all covenants, restrictions and conditions now or hereafter of
record which may be applicable to Tenant or to any of the Leased Premises, or to
the use, manner of use, occupancy, possession, operation, maintenance,
alteration, repair or restoration of any of the Leased Premises, even if
compliance therewith necessitates structural changes or improvements or results
in interference with the use or enjoyment of any of the Leased Premises or
requires Tenant to carry insurance other than as required by this Lease.
"Lender" shall mean any Person (and its respective successors and
assigns) which may, on or after the date hereof, make a Loan to Landlord or be
the holder of a Note.
"Letter of Credit" shall have the meaning set forth in Paragraph
37 hereof
"Limited Remedy Default" shall have the meaning set forth in
Paragraph 22(c) hereof.
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"Loan" shall mean any loan made by one or more Lenders to
Landlord, which loan is secured by a Mortgage and an Assignment and evidenced by
a Note, but shall not include the Security Documents.
"Monetary Obligations" shall mean Rent and all other sums payable
by Tenant under this Lease to Landlord, to any third party on behalf of Landlord
or to any Indemnitee.
"Xxxxx'x" shall mean Xxxxx'x Investor Services, Inc.
"Mortgage" shall mean any mortgage, deed of trust or other
security instrument from Landlord to a Lender which (a) encumbers any of the
Leased Premises or Landlord's interest therein and (b) secures Landlord's
obligation to repay a Loan, as the same may be amended, supplemented or
modified.
"Net Award" shall mean (a) the entire award payable to Landlord
or Lender by reason of a Condemnation whether pursuant to a judgment or by
agreement or otherwise, or (b) the entire proceeds of any insurance required
under clauses (i), (ii) (to the extent payable to Landlord or Lender), (iv), (v)
or (vi) of Paragraph 16(a), as the case may be, less any expenses incurred by
Landlord and Lender in collecting such award or proceeds.
"Note" shall mean any promissory note evidencing Landlord's
obligation to repay a Loan, as the same may be amended, supplemented or
modified.
"NYTC Board" shall mean the five (5) member Board of Managers of
the Unit established by the terms of the Declaration and By-Laws.
"Option Exercise Notice" shall mean Option Exercise Notice as
defined in Paragraph 34.
"Option Lapse Date" shall mean, as applicable, (A) with respect
to Tenant's obligation to deliver the Beneficial Transfer Documents and
Landlord's ability to exercise its remedy in the case of a Limited Remedy
Default under Paragraph 22(c): (i) the last day that Tenant could have timely
delivered the Option Notice to Landlord under the terms of Paragraph 34(a), if
Tenant fails to so timely deliver said Option Notice pursuant to Paragraph 34(a)
hereof; time being of the essence with respect to such date or (ii) the Purchase
Date, if Tenant does timely deliver the Option Notice Pursuant to Paragraph
34(a) hereof, but thereafter Tenant defaults in its obligation to close on the
Purchase Option on the Purchase Date pursuant to Paragraph 20 hereof; time being
of the essence with respect to such date, and (B) with respect to the
application of the term "Option Lapse Date" under all other provisions of this
Lease, including, without limitation, Paragraphs 9, 15, 16(b), 18, 22(a), 23,
31(b), 33, and 34, the earlier to occur of (i) the date that Tenant actually
delivers the Beneficial Transfer Documents to Landlord or (ii) the date that
Landlord forecloses upon Tenant's beneficial interest in the Leased Premises.
"Option Price" shall mean an amount equal to (i) $250,000,000.00,
plus (ii) the applicable Prepayment Premium which Landlord will be required to
pay in prepaying any Loan with the proceeds of the Option Price, if, under the
circumstances, Tenant is required to pay such Prepayment Premium under the terms
of this Lease (as more particularly set forth in Paragraphs 31(b) and 34(a)
hereof).
"Partial Casualty" shall mean any Casualty which does not
constitute a Termination Event.
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"Partial Condemnation" shall mean any Condemnation which does not
constitute a Termination Event.
"Permitted Encumbrances" shall mean (i) the WPC II Mortgage and
(ii) those covenants, restrictions, reservations, liens, conditions and
easements and other encumbrances, other than any Mortgage or Assignment, listed
on Exhibit "C" hereto (but such listing shall not be deemed to revive any such
encumbrances that have expired or terminated or are otherwise invalid or
unenforceable).
"Person" shall mean an individual, partnership, limited liability
company, association, corporation or other entity.
"Prepayment Premium" shall mean any payment required to be made
by Landlord to a Lender under a Note or any other document evidencing or
securing a Loan (other than payments of principal and/or interest which Landlord
is required to make under a Note or a Mortgage) solely by reason of any
prepayment or defeasance by Landlord of any principal due under a Note or
Mortgage, and which may without limitation take the form of (a) a "make whole"
or yield maintenance clause requiring a prepayment premium or (b) a defeasance
payment (such defeasance payment to be an amount equal to the positive
difference between (i) the total amount required to defease a Loan and (ii) the
outstanding principal balance of the Loan as of the date of such defeasance plus
reasonable Costs of Landlord and Lender or (c) "breakage costs" or (d) any
combination of clauses (a), (b) and (c) above.
"Present Value" of any amount shall mean such amount discounted
by a rate per annum which is the lower of (a) the Prime Rate at the time such
present value is determined or (b) six percent (6%) per annum.
"Prime Rate" shall mean the annual interest rate as published,
from time to time, in The Wall Street Journal as the "Prime Rate" in its column
entitled "Money Rate". The Prime Rate may not be the lowest rate of interest
charged by any "large U.S. money center commercial banks" and Landlord makes no
representations or warranties to that effect. In the event The Wall Street
Journal ceases publication or ceases to publish the "Prime Rate" as described
above, the Prime Rate shall be the average per annum discount rate (the
"Discount Rate") on ninety-one (91) day bills ("Treasury Bills") issued from
time to time by the United States Treasury at its most recent auction, plus
three hundred (300) basis points. If no such 91-day Treasury Bills are then
being issued, the Discount Rate shall be the discount rate on Treasury Bills
then being issued for the period of time closest to ninety-one (91) days.
"Renewal Term" shall mean Renewal Term as defined in Paragraph 5.
"Rent" shall mean, collectively, Basic Rent, Additional Rent and
Supplemental Rent, if any.
"Requisition" shall mean any temporary requisition or
confiscation of the use or occupancy of any of the Leased Premises by any
governmental authority, civil or military, whether pursuant to an agreement with
such governmental authority in settlement of or under threat of any such
requisition or confiscation, or otherwise.
"S&P" shall mean Standard and Poor's Corporation.
"Security Documents" shall mean collectively, (i) the Landlord
Mortgage, and (ii) the Assignment of Severance Lease.
"Security Deposit" shall have the meaning set forth in Paragraph
37 hereof
9
"Severance Lease" shall mean that certain Agreement of Sublease
(NYC) dated as of December 12, 2001 by and between New York Times Building LLC
("NYTB"), as landlord, and NYT Real Estate Company LLC, as tenant, a memorandum
of which was recorded October 24, 2003 as CRFN 2003000433125 in the Office of
the City Register (the "Initial NYTC Sublease"), which Initial NYTC Sublease was
amended by First Amendment to Agreement of Sublease (NYT) dated as of August 15,
2006 between landlord and tenant and recorded in the Office of the City Register
of the City of New York on November 20, 2006 as CRFN 2006000644735 (the "First
Amendment") and by Second Amendment to Agreement of Sublease (NYT) (the "Second
Amendment") dated as of January 29, 2007 between landlord and tenant and
recorded in the Office of the City Register of the City of New York on February
22, 2007 as CRFN 2007000100157 and as amended by Third Amendment to Agreement of
Sublease (NYT) (the "Third Amendment"), dated as of March 6, 2009 between
landlord and tenant, as same may be further amended from time to time. Pursuant
to that certain Assignment and Assumption Agreement, dated as of August 15,
2006, and recorded in the Office of the City Register of the City of New York on
November 20, 2006 as CRFN 200600644732, NYTB assigned to 00xx Xxxxxx Development
Project, Inc. ("42DP") all of its right, title and interest, as landlord, in and
to the Severance Lease.
"State" shall mean the State of New York.
"Subsidiary(ies)" of a Person means a corporation, partnership,
limited liability company, or other entity in which that Person directly or
indirectly owns or controls the shares of stock or other equity interests having
ordinary voting power to elect a majority of the board of directors (or appoint
other comparable managers) of such corporation, partnership, limited liability
company, or other entity.
"Surviving Obligations" shall mean any obligations of Tenant
under this Lease, actual or contingent, which arise on or prior to the
expiration or prior termination of this Lease or which survive such expiration
or termination by their own terms.
"Taking" shall mean (a) any taking or damaging of all or a
portion of any of the Leased Premises (i) in or by condemnation or other eminent
domain proceedings pursuant to any Law, general or special, or (ii) by reason of
any agreement with any condemnor in settlement of or under threat of any such
condemnation or other eminent domain proceeding, or (iii) by any other means, or
(b) any de facto condemnation. The Taking shall be considered to have taken
place as of the later of the date actual physical possession is taken by the
condemnor, or the date on which the right to compensation and damages accrues
under the law applicable to the Leased Premises.
"Tenant Group" shall mean The New York Times Company and its
Subsidiaries if and for so long as each such Person shall be part of the group
for the purpose of reporting financial positions and results on a consolidated
basis.
"Tenant's Personal Property" shall mean all furniture,
furnishings equipment and other personal property of Tenant, which includes,
without limitation, inventory, racking, shelving, cabling, antennae, machinery,
communication equipment, data cabinets, lockers, plug-in light fixtures, storage
racks, trash compactors, signs, desks, movable partitions, vending machines,
computer software and hardware, removable trade fixtures and equipment, even if
bolted or otherwise affixed to the floors, including, without limitation,
telecommunication switches, in each case, as now or may hereafter exist in or on
any of the Improvements and any other personal property owned by Tenant or a
sublessee of Tenant or other occupant of the Leased Premises; provided that in
no case shall Tenant's Personal Property include fixtures or built-in heating,
ventilating, air-conditioning, and electrical equipment (including power panels)
to be utilized in connection with the operation of the Leased Premises.
10
"Term" shall mean the Term as defined in Paragraph 5.
"Termination Date" shall mean Termination Date as defined in
Paragraph 18.
"Termination Event" shall mean a Termination Event as defined in
Paragraph 18.
"Termination Notice" shall mean Termination Notice as defined in
Paragraph 18(a).
"Threshold Amount" shall mean, (i) with respect to Paragraph
4(c), $10,000,000; (ii) with respect to Paragraph 10(d), $5,000,0000; (iii) with
respect to Paragraph 13(a), $5,000,000; and (iv) with respect to Paragraphs 17
and 19, $5,000,0000; provided that the Threshold Amount shall be increased,
effective as of each Basic Rent Adjustment Date, by the increase in the CPI over
the prior Lease Year.
"True Assignment" shall mean an assignment of the Severance Lease
from Tenant to Landlord, substantially in the form annexed hereto as Exhibit
"I", which shall expressly provide that it is intended to and shall be deemed
for all purposes to transfer all of Tenant's right, title and beneficial
interest in the Leased Premises to Landlord in consideration of Tenants' failure
to pay the Option Price and not merely as a part of a financing transaction.
"Warranties" shall mean Warranties as defined in Paragraph 3(d).
"WPC II Mortgage" shall mean that certain Mortgage, Assignment of
Rents, Security Agreement and Fixture Filing dated as March 6, 2009, by and
between Tenant, as Mortgagor, and 620 Eighth Lender NYT (NY) Limited Partnership
as Mortgagee, as security for the repayment of a promissory note in the original
principal amount of $175,000,000.00, as same may be hereafter amended, modified,
supplemented, restated, assigned, split, wrapped or consolidated.
"Work" shall mean Work as defined in Paragraph 13(b).
3. Title and Condition.
(a) The Leased Premises are demised and let subject to (i) the
Ground Lease and the Severance Lease (and all matters of record as to which the
Ground Lease and the Severance Lease are subject), (ii) the Condominium
Documents in effect as of the Commencement Date and any amendments, supplements
or modifications thereto made in accordance with the terms thereof and permitted
under the terms of this Lease, (iii) the rights of any Persons in possession of
the Leased Premises, (iv) the existing state of title of any of the Leased
Premises, including any Permitted Encumbrances, (v) any state of facts which an
accurate survey or physical inspection of the Leased Premises might show, (vi)
all Legal Requirements, including any existing violation of any thereof, and
(vii) the condition of the Leased Premises as of the commencement of the Term,
without representation or warranty by Landlord.
(b) Tenant acknowledges that it and/or its Affiliates have been
in legal possession and continuous physical occupancy of the Leased Premises
immediately prior to the
11
date of this Lease and that the Leased Premises is in good condition and repair
at the inception of this Lease and satisfactory to Tenant for its intended use
in all respects. LANDLORD LEASES AND WILL LEASE AND TENANT TAKES AND WILL TAKE
THE LEASED PREMISES AS IS. TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS
LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR
SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS
OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING ANY WARRANTY
OR REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR CONDITION FOR ANY PARTICULAR
USE OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, (iii)
THE EXISTENCE OF ANY DEFECT, LATENT OR PATENT, (iv) LANDLORD'S TITLE THERETO,
(v) VALUE, (vi) COMPLIANCE WITH SPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix)
CONDITION, (x) MERCHANTABILITY, (xi) QUALITY, (xii) DESCRIPTION, (xiii)
DURABILITY, (xiv) OPERATION, (xv) THE EXISTENCE OF ANY HAZARDOUS SUBSTANCE,
HAZARDOUS CONDITION OR HAZARDOUS ACTIVITY OR (xvi) COMPLIANCE OF THE LEASED
PREMISES WITH ANY LAW OR LEGAL REQUIREMENT; AND ALL RISKS INCIDENT THERETO ARE
TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES THAT THE LEASED PREMISES IS OF ITS
SELECTION AND TO ITS SPECIFICATIONS AND THAT THE LEASED PREMISES HAS BEEN
INSPECTED BY TENANT AND IS SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR
DEFICIENCY IN ANY OF THE LEASED PREMISES OF ANY NATURE, WHETHER LATENT OR
PATENT, LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT
THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT
LIABILITY IN TORT). THE PROVISIONS OF THIS PARAGRAPH 3(b) HAVE BEEN NEGOTIATED,
AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY
LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES,
ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR
HEREAFTER IN EFFECT OR ARISING OTHERWISE.
(c) Tenant represents to Landlord that Tenant has examined the
title to the Leased Premises prior to the execution and delivery of this Lease
and has found the same to be satisfactory for the purposes contemplated hereby.
Tenant acknowledges that (i) title to the Leased Premises under the Condominium
Documents is in Landlord and, except as provided in Paragraphs 34 and 35 hereof
with respect to an option to purchase the Leased Premises, that Tenant has only
the leasehold right of possession and use of the Leased Premises as provided for
in this Lease, (ii) the Improvements conform to all material Legal Requirements
and all Insurance Requirements, (iii) all easements necessary or appropriate for
the use or operation of the Leased Premises have been obtained, (iv) all
contractors and subcontractors who have performed work on or supplied materials
to the Leased Premises have been fully paid, and all materials and supplies have
been fully paid for, except for immaterial work or supplies which are in
progress or contemplated and will not have a material adverse effect on the
ability of Tenant to conduct its normal business operations at the Leased
Premises, (v) the Improvements have been fully completed in all material
respects in a workmanlike manner of first class quality, and (vi) all Equipment
necessary or appropriate for the use or operation of the Leased Premises has
been installed and is presently fully operative in all material respects.
12
(d) Landlord hereby assigns to Tenant, without recourse or
warranty whatsoever, all assignable warranties, guaranties, indemnities and
similar rights (collectively, "Warranties") which Landlord may have against any
manufacturer, seller, engineer, contractor or builder in respect of any of the
Leased Premises. Such assignment shall remain in effect until the expiration or
earlier termination of this Lease, whereupon such assignment shall cease and all
of the Warranties shall automatically revert to Landlord (provided that in
confirmation of such reversion Tenant shall execute and deliver promptly any
certificate or other document reasonably required by Landlord). So long as no
Event of Default has occurred and is then continuing, Tenant shall be entitled
to have the full benefit of, full recourse to, and the right to enforce, the
Warranties in accordance with their respective terms, and Tenant shall use
commercially reasonable efforts to enforce same. Upon the occurrence and during
the continuance of an Event of Default Landlord shall have the right, at its
option, to revoke such assignment and retain the right to enforce any such
Warranties.
4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may occupy and use the Leased Premises for general,
executive and administrative offices and uses incidental and ancillary thereto
consistent with use as a headquarters facility in a high-rise first-class office
building in midtown Manhattan and, in each case, permitted under the Condominium
Documents, the Ground Lease, the Severance Lease and applicable Laws, and for no
other purpose without the prior written consent of Landlord, and, if required,
the Condominium Board. Tenant shall not use or occupy or permit any of the
Leased Premises to be used or occupied for any retail use (except for the use of
the ground floor to the extent under applicable Law), for the uses permitted
and/or required thereof under the terms of the Severance Lease. Further, Tenant
shall not use or occupy or permit any of the Leased Premises to be used or
occupied, or do or permit anything to be done in or on any of the Leased
Premises, in a manner which would or might (i) violate any Law, Legal
Requirement or Permitted Encumbrance, (ii) make void or voidable or cause any
insurer to cancel any insurance required by this Lease, or make it difficult or
impossible to obtain any such insurance at commercially reasonable rates, (iii)
make void or voidable, cancel or cause to be cancelled or release any of the
Warranties, (iv) cause structural injury to any of the Improvements, (v)
constitute a public or private nuisance or waste or (vi) violate the provisions
of the Condominium Documents or the Severance Lease.
(b) Subject to the provisions hereof, so long as no Event of
Default has occurred and is continuing, Tenant shall quietly hold, occupy and
enjoy the Leased Premises throughout the Term, without any hindrance, ejection
or molestation by Landlord with respect to matters that arise after the date
hereof, provided that Landlord or its agents may enter upon and examine any of
the Leased Premises between the hours of 8:00 a.m. and 6:00 p.m. on business
days (i.e. days other than Saturday, Sunday and holidays observed by the State
or Federal government as legal holidays) as Landlord may select and upon
reasonable advance notice to Tenant (except in the case of an emergency, in
which no notice shall be required) for the purpose of inspecting the Leased
Premises, verifying compliance or non-compliance by Tenant with its obligations
hereunder and the existence or non-existence of an Event of Default or event
which with the passage of time and/or notice would constitute an Event of
Default, showing the Leased Premises to prospective Lenders and purchasers,
making any repairs as to which an Event of
13
Default has occurred and is then continuing under this Lease, and taking such
other action with respect to the Leased Premises as is permitted by any
provision hereof.
(c) Subject to the express terms, conditions and/or limitations
to the contrary contained elsewhere in the Lease, during the Term of this Lease,
so long as no Event of Default has occurred and is then continuing under this
Lease, all rights and options under the Condominium Documents and the Severance
Lease (collectively, the "Governing Documents") which may be exercised by the
lessee under the Severance Lease and all other matters relating to the
governance of the Condominium shall be exercisable solely by Tenant in its
reasonable business judgment, and Landlord shall take such steps as are
reasonably required to facilitate the exercise of, or effectuate, such rights or
options on behalf of Tenant (provided same is at no cost to Landlord or Tenant
has agreed in writing to reimburse Landlord for such costs); provided Tenant
shall not be permitted, without the express prior written consent of Landlord
(and Lender, if applicable), to take or permit (by affirmative vote or
acquiescence) any action that (i) adversely affects the estate, priority or
perfection of Landlord's or Lenders security interest in the Leased Premises or
the Condominium), (ii) would or is likely to cause or permit any lien or
encumbrance upon the fee estate or any leasehold at the Condominium in which
Landlord has an interest (including Tenant's estate as lessee under this Lease
or the Severance Lease) or for which Landlord or Tenant would or could be
ultimately responsible for repayment, through Condominium Expenses or otherwise,
including the incurrence by the Condominium of any indebtedness, other than
trade debt in the ordinary course of business and provided that Alterations,
which could result in a mechanics liens, are not precluded by this clause (ii)),
(iii) would materially impair the value or utility of the Building or the
Condominium, (iv) constitutes an obligation to fund or perform capital
expenditures for the common elements of the Building having an aggregate cost in
excess of the Threshold Amount (unless same are required to be funded or
performed under the terms of the Governing Documents or applicable Laws), (v)
constitutes a change in zoning or use classification or the status of the Leased
Premises or the Building as a valid leasehold condominium under the Condominium
Act, (vi) subordinates or subjects Landlord's, Lender's or Tenant's interest in
the Condominium to any other party or to any agreement not in effect as of the
date of this Lease, (vii) requires or obligates Landlord to grant or recognize
non-disturbance rights to any party other than as expressly provided for in this
Lease, (viii) in Landlord's reasonable determination, constitutes a violation of
any Legal Requirement or the terms of Section 3.1 of the Severance Lease with
respect to PILOT, (ix) constitutes a subdivision of any of the condominium units
or tax lots comprising the Leases Premises, or (x) impairs or violates the
single purpose, bankruptcy remote status of Tenant; it being agreed that,
subject to the foregoing and without limiting the provisions of the first
sentence of this Paragraph 4(c), and so long as no Event of Default has occurred
and is then continuing under this Lease, Landlord hereby grants Tenant the right
to elect (or to designate the applicable individuals, if the Governing Documents
provide that such election is to be made by Landlord) the applicable members to
the Condominium Board and the NYTC Board, to approve operating expense budgets
for the Condominium that do not exceed the prior year's budget by more than 3%
(exclusive of uncontrollable cost increases such as fuel and utilities passed
through by the provider thereof and costs required under the Severance Lease or
applicable Laws), and to exercise expansion options or rights of first offer or
refusal available to the lessee under the Severance Lease without Landlord's
consent, so long as such rights are not actually exercised in the name of
Tenant. All revenues and credits accruing under the Governing Documents to the
owner of the Leased Premises or the lessee under the Severance Lease shall be
14
paid or credited to the Tenant. Notwithstanding anything contained herein to the
contrary, without the express prior written consent of Landlord and Lender, if
applicable, in their sole discretion, in no event shall Tenant be permitted to
(i) take or suffer (or permit the Condominium Board or the NYTC Board to take or
suffer) any action which would or is likely to result in the extinguishment or
merger of any fee or leasehold estate in effect on the Commencement Date as a
part of the Condominium regime and/or PILOT structure or the termination of the
condominium regime of which the Leased Premises is a part (except in connection
with and as permitted under Paragraph 18 hereof in connection with a Termination
Event), (ii) modify the terms of the Declaration or any other Governing Document
to increase or decrease the percentage interest of or use of the common elements
of the Condominium attributable to the Leased Premises or the limited common
elements constituting a part of the Leased Premises, (iii) sell, transfer,
assign or diminish any representative member's seat on the Condominium Board or
the NYTC Board or any voting rights attendant thereto, (iv) enter into any proxy
or other voting agreement that delegates a board member's voting rights under
the Governing Documents to any other Person (including any other member of the
Condominium Board, unless such Person is another board member designated by
Tenant hereunder or by Landlord under the Severance Lease), or (v) exercise any
voting rights as the Unit owner or member of the Condominium Board or designate
any person to act a board member at any time while an Event of Default hereunder
exists, in which event any and all such rights shall automatically revert to
Landlord during the existence of such Event of Default.
(d) Notwithstanding (i) the provisions of this Paragraph 4 above
to the contrary, but subject to the limitations and restrictions therein as to
acts permitted to be taken by Tenant, (ii) any failure by 42DP to recognize
Landlord as "Recognized Mortgagee" under the Severance Lease and to consent to
Landlord as the lessee thereunder, Tenant covenants and agrees that as between
Landlord and Tenant it shall be and remain primarily responsible for, and shall
timely pay and perform, all of obligations of the lessee under the Severance
Lease as if Tenant were the NYTC Unit Owner under the Governing Documents
unaffected by the Transaction Documents, and any default under the Severance
Lease shall constitute a material default under this Lease. Notwithstanding
anything to the contrary contained in this Lease, if Tenant shall fail to pay or
perform any obligation under the Severance Lease, (including, without
limitation, the failure to pay any "Charges" as defined therein) and such
default remains uncured as of the expiration of the applicable cure period
provided for in the Severance Lease under a "First Default Notice" issued by
42DP with respect to such default, then Landlord shall have the right, upon one
(1) business day's notice to Tenant to pay any such Charges or take any other
action (including the procurement of insurance) necessary or appropriate to cure
such default under the Severance Lease, and all costs and expenses paid or
incurred by Landlord in connection with such cure shall constitute Additional
Rent under this Lease and shall be immediately due and payable upon written
demand therefor by Landlord to Tenant.
5. Term.
(a) Subject to the provisions hereof, Tenant shall have and hold
the Leased Premises for an initial term (such term, as extended or renewed in
accordance with the provisions hereof, being called the "Term") commencing on
the date hereof (the "Commencement Date") and ending at 11:59 p.m. (EST) on
March 31, 2024 (the "Expiration
15
Date"), unless this Lease is sooner terminated in accordance with the express
provisions hereof or applicable Law.
(b) Provided that if, on or prior to the Expiration Date or any
other Renewal Date (as hereinafter defined) this Lease shall not have expired or
have been terminated pursuant to any provision hereof, then Tenant shall have
the option to extend the Term of this Lease on the Expiration Date and on the
tenth (10th) and fifteenth (15th) anniversaries of the Expiration Date (the
Expiration Date and each such anniversary being a referred to herein as a
"Renewal Date"), for an additional period of ten (10) years, with respect to the
first renewal option, and five (5) years each with respect to the second and
third renewal options (each such extension, a "Renewal Term"). Each applicable
Renewal Term shall be exercisable by Tenant only by delivering written notice to
Landlord in the form attached hereto as Exhibit "F" at least twelve (12) months
prior to the next Renewal Date that Tenant is electing to extend the Term of
this Lease (in whole or in part and, if in part, identifying all floors to be
renewed) as of the next Renewal Date for the applicable Renewal Term; time being
of the essence with respect to the giving of such written notice. Such notice by
Tenant hereunder shall be irrevocable and the parties shall be thereafter bound
to determine FMRV for the applicable Renewal Term in accordance with Paragraph
29 hereof. Any such extension of the Term shall be subject to all of the
provisions of this Lease, as the same may be amended, supplemented or modified
by subsequent written agreement executed by and between Landlord and Tenant
(except that Tenant shall not have the right to any additional Renewal Terms
other than as aforesaid).
(c) In addition to Tenant's option to extend the Term of this
Lease with respect to the entirety of the Leased Premises, Tenant shall have the
option to extend the term of this Lease with respect to only a portion of the
Leased Premises by notice given in accordance with Paragraph 5(b) above,
provided that (i) any partial extension of the Term must be with respect to full
floors increments only of the Building, (ii) any partial extension of the Term
must include all floors constituting "special purpose real estate" (i.e. real
estate that is not then configured for general, executive, and administrative
office use, such as the Cellar Space, the floors housing the auditorium and
related lobby and gallery space that is designated under the terms of Severance
Lease for use as public amenity space (the "SPU Areas"), the cafeteria areas
(Floors 14 and 15) and editorial floors (Floors 2, 3 and 4), and any other floor
or floors containing so-called "specialty alterations" (i.e., raised flooring,
vented kitchens areas, vaults, slab penetrations for internal stairways or
mezzanine areas, or other improvements, in any case, installed by Tenant after
the date of this Lease and that will or are likely to result in a material
incremental increase in demolition costs to Landlord; any of the foregoing,
"Specialty Alterations") (collectively, such clause (ii) floors, the "Must-Take
Floors"), (iii) shall not include any floor or floors housing the major
mechanical rooms or equipment for the operation of Unit without Landlord's
approval, in its sole discretion, and (iv) all renewed floors containing generic
office space must be contiguous to each other and to the extent practicable
contiguous to the Must Take Floors, and must be selected by Tenant starting with
the lowest full floor first and then moving up. Notwithstanding the foregoing,
provided that Tenant removes any Specialty Alterations described in clause (ii)
above at or prior to the end of the Term, then such applicable floor or floors
shall not constitute Must-Take Floors.
(d) If Tenant fails to timely exercise its option to extend or
further extend the Term, or elects to extend the Term of this Lease with respect
to only a portion of the
16
Leased Premises as provided above, or if an Event of Default occurs and is then
continuing, then Landlord shall have the right during the remainder of the Term
then in effect and, in any event, Landlord shall have the right during the last
year of the Term, to publicly advertise or list the availability of the Leased
Premises or the applicable floors not being extended, as the case may be, for
sale or reletting.
6. Basic Rent. Tenant shall pay to Landlord, as annual rent for the
Leased Premises during the Term, the amounts determined in accordance with
Exhibit "D" hereto ("Basic Rent"), payable in advance for the next calendar
month, commencing on the twenty-fifth (25th) day of the first month following
the date hereof and continuing on the same day of each month thereafter during
the Term which shall be payable as set forth in said Exhibit "D". The date that
each payment of Basic Rent is due is hereinafter referred to as a "Basic Rent
Payment Date". Each such payment of Basic Rent shall be made in Federal Funds on
each Basic Rent Payment Date to Landlord and/or to such one or more other
Persons (including directly to a Lender under a cash management system, lock box
account, or otherwise), pursuant to wire transfer instructions delivered to
Tenant from time to time at such addresses and in such proportions as Landlord
may direct by fifteen (15) days' prior written notice to Tenant (in which event
Tenant shall give Landlord notice of each such payment concurrent with the
making thereof); provided further, if the WPC II Mortgage is assigned to a
Lender or Landlord otherwise enters into a Loan, then Tenant shall have the
right, upon at least fifteen (15) days' prior written notice to Landlord, to
voluntarily pay a portion of the Basic Rent sufficient to satisfy the monthly
debt service under said Loan directly to such Lender (in which event Tenant
shall give Landlord notice of each such payment concurrent with the making
thereof).
7. Additional Rent.
(a) Tenant shall pay and discharge, as additional rent
(collectively, "Additional Rent"):
(i) except as otherwise specifically provided herein, all
costs and expenses of Tenant, Landlord and any other Persons specifically
referenced herein which are incurred in connection or associated with (A) the
ownership, use, non-use, occupancy, monitoring, possession, operation,
condition, design, construction, maintenance, alteration, repair or restoration
of any of the Leased Premises, (B) the performance of any of Tenant's
obligations under this Lease, (C) any sale or other transfer of any of the
Leased Premises to Tenant under this Lease or any Affiliate or designee of
Tenant including any conveyance of the Leased Premises in accordance with
Xxxxxxxxx 00 xxxxxx, (X) any Condemnation proceedings, (E) the adjustment,
settlement or compromise of any insurance claims involving or arising from any
of the Leased Premises, (F) the prosecution, defense or settlement of any
litigation involving or arising from any of the Leased Premises, this Lease, or
the sale of the Leased Premises to Landlord, (G) the exercise or enforcement by
Landlord, its successors and assigns, of any of its rights under this Lease, (H)
any amendment to or modification or termination of this Lease made at the
request of Tenant, (I) Costs of Landlord's counsel and reasonable internal Costs
of Landlord incurred in connection with any act undertaken by Landlord (or its
counsel) at the request of Tenant, any act of Landlord performed on behalf of
Tenant or the review and monitoring of compliance by Tenant with the terms of
this Lease following an Event of Default hereunder, (J) all Condominium
Expenses, (K) all fees and costs (including any late fees or
17
default interest due) incurred or payable under or associated with the
Condominium, the Condominium Documents, the Severance Lease or the Ground Lease,
or any compliance with any of the foregoing, (L) all Costs associated with the
delivery of the Beneficial Transfer Documents, including reasonable attorney's
fees and all transfer taxes payable with respect to the recording of the True
Assignment, and (M) any other items specifically required to be paid by Tenant
under this Lease;
(ii) Intentionally Omitted;
(iii) a sum equal to any additional sums (including any late
charge in excess of the amount payable under clause (ii) above for that portion
of the Basic Rent paid to the Lender as scheduled installments of principal and
interest, default penalties, interest in excess of amounts payable under clause
(iv) below for that portion of the Basic Rent paid to the Lender as scheduled
installments of principal and interest, and fees of Lender's counsel) which are
payable by Landlord to any Lender under any Note by reason of Tenant's late
payment or non-payment of Basic Rent or by reason of an Event of Default; and
(iv) interest at the rate (the "Default Rate") of five
percent (5%) over the Prime Rate per annum on the following sums until paid in
full: (A) all overdue installments of Basic Rent from the respective due dates
thereof, (B) all overdue amounts of Additional Rent relating to obligations
which Landlord shall have paid on behalf of Tenant, from the date of payment
thereof by Landlord, and (C) all other overdue amounts of Additional Rent, from
the date when any such amount becomes overdue.
(b) Tenant shall pay and discharge (i) any Additional Rent
referred to in Paragraph 7(a)(i) when the same shall become due, provided that
amounts which are billed to Landlord or any third party, but not to Tenant,
shall be paid within ten (10) business days after Landlord's demand for payment
thereof, and (ii) any other Additional Rent, within ten (10) business days after
Landlord's demand for payment thereof.
(c) In no event shall amounts payable under Paragraph 7(a)(ii),
(iii) and (iv) or elsewhere in this Lease exceed the maximum amount permitted by
applicable Law.
8. Net Lease; Non-Terminability.
(a) This is a net lease and all Monetary Obligations shall be
paid without notice or demand (except as otherwise expressly provided herein to
the contrary) and without set-off, counterclaim, recoupment, abatement,
suspension, deferment, diminution, deduction, reduction or defense
(collectively, a "Set-Off").
(b) Except as otherwise expressly provided herein to the
contrary, this Lease and the rights of Landlord and the obligations of Tenant
hereunder shall not be affected by any event or for any reason or cause
whatsoever foreseen or unforeseen.
(c) The obligations of Tenant hereunder shall be separate and
independent covenants and agreements, all Monetary Obligations shall continue to
be payable in all events (or, in lieu thereof, Tenant shall pay amounts equal
thereto), and the obligations of Tenant hereunder shall continue unaffected
unless the requirement to pay or perform the same
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shall have been terminated pursuant to an express provision of this Lease. The
obligation to pay Rent or amounts equal thereto shall not be affected by any
collection of rents by any governmental body pursuant to a tax lien or
otherwise, even though such obligation results in a double payment of Rent. All
Rent payable by Tenant hereunder shall constitute "rent" for all purposes
(including Section 502(b)(6) of the Federal Bankruptcy Code).
(d) Except as otherwise expressly provided herein, Tenant shall
have no right and hereby waives all rights which it may have under any Law (i)
to quit, terminate or surrender this Lease or any of the Leased Premises, or
(ii) to any Set-Off of any Monetary Obligations.
9. Payment of Impositions.
(a) Tenant shall, before interest or penalties are due thereon,
pay and discharge all taxes (including real and personal property, franchise,
sales, use, gross receipts and rent taxes and/or all payments in lieu thereof
("PILOT"), all charges for any easement or agreement maintained for the benefit
of any of the Leased Premises, all assessments and levies, all permit,
inspection and license fees, all rents and charges for water, sewer, utility and
communication services relating to any of the Leased Premises, all ground rents
and all other public charges whether of a like or different nature, even if
unforeseen or extraordinary, imposed upon or assessed against (i) Tenant, (ii)
Tenant's leasehold interest in the Leased Premises, (iii) any of the Leased
Premises, (iv) Landlord as a result of or arising in respect of the acquisition,
ownership, occupancy, leasing, use, possession or sale of any of the Leased
Premises, any activity conducted on any of the Leased Premises, or the Rent, or
(v) any Lender by reason of any Note, Mortgage, Assignment or other document
evidencing or securing a Loan and which (as to this clause (v)) Landlord has
agreed to pay (collectively, the "Impositions"); provided, that nothing herein
shall obligate Tenant to pay (A) income, excess profits or other taxes of
Landlord (or Lender) which are determined on the basis of Landlord's (or
Lender's) net income or net worth (unless such taxes are in lieu of or a
substitute for any other tax, assessment or other charge upon or with respect to
the Leased Premises which, if it were in effect, would be payable by Tenant
under the provisions hereof or by the terms of such tax, assessment or other
charge), (B) any estate, inheritance, succession, gift or similar tax imposed on
Landlord or (C) any capital gains tax imposed on Landlord in connection with the
sale of the Leased Premises to any Person. Landlord shall have the right to
require Tenant to pay, together with scheduled installments of Basic Rent, the
amount of the gross receipts or rent tax, if any, payable with respect to the
amount of such installment of Basic Rent. If any Imposition may be paid in
installments without interest or penalty, Tenant shall have the option to pay
such Imposition in installments; in such event, Tenant shall be liable only for
those installments which accrue or become due and payable during the Term.
Tenant shall be responsible to obtain all bills for the payment of Impositions
and shall prepare and file all tax reports required by governmental authorities
which relate to the Impositions. Tenant shall deliver to Landlord (1) copies of
all settlements and notices pertaining to the Impositions which may be issued by
any governmental authority within ten (10) days after Tenant's receipt thereof,
(2) receipts for payment of all taxes required to be paid by Tenant hereunder
within thirty (30) days after the due date thereof and (3) receipts for payment
of all other Impositions within ten (10) days after Landlord's request therefor.
Nothing contained in this Paragraph 9 is intended to limit the contest rights of
Tenant under Paragraph 14 hereof, and, from the date hereof through the Option
Lapse Date, so long as
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no Event of Default has occurred and is then continuing under this Lease only
Tenant shall have the right to protest any real estate tax, PILOT or assessment
or to commence any certiorari proceeding in connection therewith.
(b) Following the occurrence of an Event of Default with respect
to the timely payment of any Impositions or insurance premiums, as the case may
be, in accordance with the terms of this Lease or the Condominium Documents,
upon the written request of Landlord, Tenant shall pay into an escrow account
controlled by Landlord (or Lender, as the case may be), funds necessary to pay
Escrow Charges (as herein defined), in such amounts (each an "Escrow Payment")
monthly (or on such other periodic basis as required by such Lender, but not
more often than monthly) so that there shall be in an escrow account an amount
sufficient to pay the Escrow Charges (as hereinafter defined) as they become
due. As used herein, "Escrow Charges" shall mean real estate taxes, PILOT,
and/or assessments on or with respect to the Leased Premises and premiums on any
insurance required by this Lease; provided that Escrow Charges for premiums on
any insurance required by this Lease shall not be subject to Escrow Payment
hereunder unless at the time in question Tenant carries a separate policy or has
an indentified premium and coverage limits applicable solely to the Leased
Premises. Landlord shall reasonably determine the amount of the Escrow Charges
(it being agreed that if required by a Lender, such amounts shall equal any
corresponding escrow installments required to be paid by Landlord) and the
amount of each Escrow Payment. As long as the Escrow Payments are being held by
Landlord the Escrow Payments shall not be commingled with other funds of
Landlord or other Persons and interest thereon shall accrue for the benefit of
Tenant from the date such monies are received and invested until the date such
monies are disbursed to pay Escrow Charges. Landlord shall apply the Escrow
Payments to the payment of the Escrow Charges in such order or priority as
Landlord shall determine or as required by Law. If at any time the Escrow
Payments theretofore paid to Landlord shall be insufficient for the payment of
the Escrow Charges, Tenant, within ten (10) business days after Landlord's
demand therefor, shall pay the amount of the deficiency to Landlord.
10. Compliance with Laws and Easement Agreements, Environmental
Matters.
(a) Tenant shall, at its expense, comply with and conform to, and
cause the Leased Premises and any other Person occupying any part of the Leased
Premises to comply with and conform to, all Insurance Requirements and Legal
Requirements (including all applicable Environmental Laws). Tenant shall use all
commercially reasonable efforts (including casting all affirmative votes with
respect thereto) to cause the Condominium Board and the NYTC Board to take all
action necessary or appropriate to maintain the Unit and the Condominium as a
validly existing condominium under the terms of and in compliance with the
Condominium Act, and shall not allow the Leased Premises to be or become a part
of any other tax lot (except for the tax lots constituting the Leased Premises
in effect on the date hereof), or to be responsible for the payment of any real
estate taxes or assessments attributable to the Land or the Building (other than
the Leased Premises) except for its obligation under the Declaration to
contribute for Condominium Expenses with respect to taxes and assessments for
the common elements of the Building). Tenant shall not at any time (i) cause,
permit or suffer to occur any Environmental Violation or (ii) permit any
sublessee, assignee or other Person occupying the Leased Premises under or
through Tenant to cause, permit or suffer to occur any Environmental
20
Violation and, at the request of Landlord or Lender, Tenant shall promptly
remediate or undertake any other appropriate response action to correct any
existing Environmental Violation. Any and all reports prepared for or by
Landlord with respect to the Leased Premises shall be for the sole benefit of
Landlord and Lender and no other Person shall have the right to rely on any such
reports. The parties acknowledge that as of the date hereof the Building and the
Leased Premises are being occupied pursuant to a temporary certificate of
occupancy ("T/C/O") which is schedule to expire on April 9, 2009. Tenant shall
(i) cause the T/C/O to be renewed or extended as and when required and in no
event allow the T/C/O to lapse, (ii) comply (or cause the Condominium Board to
comply) with the terms of the Severance Lease with respect to obtaining the
permanent certificate of occupancy for the Building, and (iii) use commercially
reasonable efforts to clear any violations or open permits with respect to the
Leased Premises or any other part of the "NYTC Collective Units" (as defined in
the Declaration) in order to permit the permanent certificate of occupancy for
the Building to be issued. Tenant shall comply with the "Signage Obligations"
provisions in the Severance Lease.
(b) Tenant, at its sole cost and expense, will at all times
promptly and faithfully abide by, discharge and perform all of the covenants,
conditions and agreements contained in any Easement Agreement on the part of
Landlord or the occupier to be kept and performed thereunder. Tenant will not
alter, modify, amend or terminate any Easement Agreement, give any consent or
approval thereunder, or enter into any new Easement Agreement without, in each
case, the prior written consent of Landlord.
(c) Upon prior written notice from Landlord, Tenant shall permit
such persons as Landlord may designate ("Site Reviewers") to visit the Leased
Premises during normal business hours and in a manner which does not
unreasonably interfere with Tenant's operations and perform, as agents of
Tenant, and to conduct environmental site investigations and assessments ("Site
Assessments") on the Leased Premises in any of the following circumstances: (i)
in connection with any sale, financing or refinancing of the Leased Premises,
(ii) within the six month period prior to the expiration of the Term, (iii) if
required by Lender or the terms of any credit facility to which Landlord is
bound, (iv) if an Event of Default exists, or (v) at any other time that, in the
opinion of Landlord or Lender, a reasonable basis exists to believe that an
Environmental Violation or any condition that could reasonably be expected to
result in any Environmental Violation exists(provided that, with respect to this
clause (v), Landlord shall give Tenant ten (10) days prior written notice of
such opinion prior to causing a Site Assessment to be performed). Such Site
Assessments may include both above and below the ground testing for
Environmental Violations and such other tests as may be necessary, in the
opinion of the Site Reviewers, to conduct the Site Assessments. Tenant shall
supply to the Site Reviewers such historical and operational information
regarding the Leased Premises as may be reasonably requested by the Site
Reviewers to facilitate the Site Assessments, and shall make available for
meetings with the Site Reviewers appropriate personnel having knowledge of such
matters. The cost of performing and reporting Site Assessments shall be paid by
Tenant under clause (i) above, if such sale is to Tenant or any Affiliate or
designee thereof; under clause (ii) above, but only one (1) time; and under
clauses (iv) and (v) above, but only if an Environmental Violation is actually
discovered and, in all other instances, the cost of performing and reporting
Site Assessments shall be paid by Landlord.
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(d) If an Environmental Violation occurs or is found to exist
and, in Landlord's reasonable judgment, the cost of remediation of, or other
response action with respect to, the same is likely to exceed the Threshold
Amount, Tenant shall provide to Landlord, within ten (10) days after Landlord's
request therefor, financial assurances that Tenant has (or that Guarantor will
provide) adequate financial wherewithal to effect such remediation in accordance
with applicable Environmental Laws. Such financial assurances may, at the
request of Landlord, be a bond or letter of credit reasonably satisfactory to
Landlord in form and substance and in an amount equal to or greater than
Landlord's reasonable estimate (based upon the report of a reputable third party
contractor), based upon a Site Assessment performed pursuant to Paragraph 10(c),
of the anticipated cost of such remedial action.
(e) Notwithstanding any other provision of this Lease, if an
Environmental Violation occurs or is found to exist and the Term would otherwise
terminate or expire, then, if the existence of such Environmental Violation
impairs Landlord's ability to retenant the Leased Premises in any material
respect, at the option of Landlord, the Term shall be automatically extended
beyond the date of termination or expiration and this Lease shall remain in full
force and effect beyond such date until the earlier to occur of (i) the
completion of such remedial action in accordance with applicable Environmental
Laws to the extent necessary to remove any impairment to Landlord's ability to
retenant the Leased Premises, or (ii) the date specified in a written notice
from Landlord to Tenant terminating this Lease.
(f) If Tenant fails to promptly commence to the extent
practicable and thereafter diligently pursue to complete the remediation of any
Environmental Violation which occurs or is found to exist, Landlord shall have
the right (but no obligation) to take any and all actions as Landlord shall deem
necessary or advisable in order to cure such Environmental Violation upon ten
(10) days prior written notice to Tenant.
(g) Tenant shall notify Landlord promptly after becoming aware of
any Environmental Violation (or alleged Environmental Violation) or
noncompliance with any of the covenants contained in this Paragraph 10 and shall
forward to Landlord immediately upon receipt thereof copies of all orders,
reports, notices, permits, applications or other communications relating to any
such violation or noncompliance.
(h) All future leases, subleases or concession agreements
relating to the Leased Premises entered into by Tenant shall contain covenants
of the other party not to at any time (i) cause any Environmental Violation to
occur or (ii) permit any Person occupying the Leased Premises through said
subtenant or concessionaire to cause any Environmental Violation to occur.
11. Liens; Recording.
(a) Tenant shall not, directly or indirectly, create or permit to
be created or to remain and shall promptly discharge or remove any lien, levy or
encumbrance on any of the Leased Premises or on any Rent or any other sums
payable by Tenant under this Lease, other than any Mortgage or Assignment, the
Permitted Encumbrances and any mortgage, lien, encumbrance or other charge
created by or resulting solely from any act or omission of Landlord. NOTICE IS
HEREBY GIVEN THAT LANDLORD SHALL NOT BE LIABLE FOR
22
ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT OR TO
ANYONE HOLDING OR OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR UNDER TENANT,
AND THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS
SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO ANY OF THE LEASED
PREMISES. LANDLORD MAY AT ANY TIME, AND AT LANDLORD'S REQUEST TENANT SHALL
PROMPTLY, POST ANY NOTICES ON THE LEASED PREMISES REGARDING SUCH NON-LIABILITY
OF LANDLORD.
(b) Tenant shall execute, deliver and record, file or register
(collectively, "record") all such instruments as may be required or permitted by
any present or future Law in order to evidence the respective interests of
Landlord and Tenant in the Leased Premises, and shall cause a memorandum of this
Lease (or, if such a memorandum cannot be recorded, this Lease), and any
supplement hereto or thereto, to be recorded in such manner and in such places
as may be required or permitted by any present or future Law in order to protect
the validity and priority of this Lease.
12. Maintenance and Repair.
(a) Tenant shall at all times maintain the Leased Premises in as
good repair and appearance as they are in on the date hereof and fit to be used
for their intended use in accordance with practices then generally recognized as
appropriate for high-rise first-class office buildings in midtown Manhattan by
prudent institutional owners or operators thereof and, in the case of the
Equipment, in as good mechanical condition as it was on the later of the date
hereof or the date of its installation, ordinary wear and tear excepted and,
provided further, that, in all events, the Leased Premises (including all
Improvements and Equipment) shall be kept and maintained in accordance with the
standards and requirements set forth in the Severance Lease and Condominium
Documents. Tenant shall promptly make all Alterations of every kind and nature
(structural and non-structural), whether foreseen or unforeseen, which may be
necessary or appropriate to keep and maintain the Leased Premises in compliance
with all applicable Legal Requirements and all Insurance Requirements and to
comply with the foregoing requirements of this Paragraph 12(a), the Severance
Lease, and the Condominium Documents. Landlord shall not be required to make any
Alteration (structural or non-structural), whether foreseen or unforeseen, or to
maintain any of the Leased Premises in any way, and Tenant hereby expressly
waives any right which may be provided for in any Law now or hereafter in effect
to make Alterations at the expense of Landlord or to require Landlord to make
Alterations. Any Alteration made by Tenant pursuant to this Paragraph 12 shall
be made in conformity with the provisions of Paragraph 13.
(b) If any Improvement, now or hereafter constructed, shall (i)
encroach upon any setback or any property, street or right-of-way adjoining the
Condominium, or any other unit of the Condominium, or the common elements of the
Condominium, in violation of applicable Laws or the Condominium Documents, (ii)
violate the provisions of any restrictive covenant affecting the Leased
Premises, (iii) hinder or obstruct any easement or right-of-way to which any of
the Leased Premises is subject or (iv) impair the rights of others in, to or
under any of the foregoing, Tenant shall use commercially reasonable efforts (or
shall use commercially reasonable efforts to cause the Condominium Board to)
promptly
23
after receiving a written notice, claim or demand to cure same, either (A)
obtain from all necessary parties waivers or settlements of all claims,
liabilities and damages resulting from each such encroachment, violation,
hindrance, obstruction or impairment, whether the same shall affect Landlord,
Tenant or both, or (B) take such action as shall be necessary to remove all such
encroachments, hindrances or obstructions and to end all such violations or
impairments, including, if necessary, making Alterations; provided however, that
with respect to any Improvements existing at the Leased Premises as of the date
of this Lease (x) the mere existence of any condition under clauses (i) - (iv)
hereinabove shall not by itself constitute an Event of Default hereunder and (y)
Tenant shall not be required to take the actions required under clauses (A) or
(B) hereof unless (1) Tenant shall have received written notice to take such
actions from any governmental or quasi-governmental authority having
jurisdiction over the Leased Premises or (2) a Person other than Landlord shall
commence an action or proceeding with respect thereto. In any case, the
provisions hereof shall be subject to Tenant's contest rights under Paragraph 14
hereof
(c) Tenant agrees that (i) at all times during the Term it shall
cause the Leased Premises to be managed by a reputable third party property
manager, pursuant to a property management agreement reviewed by and reasonably
acceptable to Landlord (and Lender, if applicable), and (ii) such manager shall
agree to enter into separate subordination of management agreements for the
benefit of Landlord and Lender, as applicable, reasonably satisfactory to
Landlord or Lender, as the case may be. A copy of the currently existing
property management agreement by and between Tenant and First New York Partners
has been delivered to Landlord and Landlord hereby approves same. If Tenant
desires to enter into a new management agreement same shall be delivered to
Landlord and Lender (if applicable) for approval prior to the effective date
thereof; provided that if Landlord and Lender (if applicable) shall fail to
approve or disapprove such management agreement in writing within fourteen (14)
days of delivery thereof by Tenant, then same shall be deemed approved (but
clause (ii) of the first sentence of this Paragraph 12(c) shall nevertheless be
applicable to such management agreement).
13. Alterations and Improvements.
(a) Tenant shall have the right, without having obtained the
prior written consent of Landlord and Lender , (i) to make non-structural
Alterations and (ii) to install Equipment in the Improvements or accessions to
the Equipment that, so long as at the time of construction or installation of
any such Equipment or Alterations no Event of Default exists and the value,
utility or structural integrity of the Building or the Leased Premises is not
diminished thereby, nor the use of the Leased Premises altered thereby in any
material respect. If Tenant desires to make structural Alterations to the Leased
Premises, then the prior written approval of Landlord and Lender shall be
required (such approval not to be unreasonably withheld or delayed); provided
that (i) "poke-throughs" or similar minor slab penetrations or reinforcement of
existing structural elements to increase load bearing shall not constitute
structural alterations if performed in connection with any other permitted
Alterations hereunder and (ii) Landlord's approval shall not be withheld (and
shall be given by Landlord within ten (10) days of a written request by Tenant
therefor accompanied by the statement of the Qualified Engineer below, or else
shall be deemed given by Landlord) with respect to construction of internal
stairways created within the Leased Premises, so long as Tenant gives to
Landlord a writing signed by a
24
reputable and recognized structural engineer selected by Tenant who regularly
prepares plans for and/or reviews and approves structural work (including
without limitation the construction and installation of internal stairways), in
first-class high-rise office buildings in Manhattan (a "Qualified Engineer")
stating that Tenant's plans for such stairway(s) have been prepared and/or
reviewed by, and are satisfactory to, such Qualified Engineer and are in
compliance with all applicable Legal Requirements. Tenant shall not cause or
permit to be constructed upon the Land any additional buildings without having
first obtained the prior written consent of Landlord and Lender, such approval
to be granted or withheld in their sole discretion. Landlord shall have the
right to require Tenant, at its sole cost and expense, to remove at the end of
the Term, and Tenant shall so remove (and repair and restore as necessary to its
prior condition) upon such request of Landlord (i) all Specialty Alterations
(other than the SPU Areas) installed by Tenant after the date of this Lease,
including, without limitation, any internal stairway connecting any floor
excluded from the Leased Premises as part of a partial extension of the Term by
Tenant under Paragraph 5(c) hereof, and (ii) all other Alterations which
Landlord, at the time it granted approval to perform same, required that same be
removed at the end of the Term, and (ii) any Alterations existing in violation
of any Legal Requirements. If, in Landlord's reasonable judgment, the cost of
any single Alteration or series of related Alterations to be performed in any
consecutive twelve-month period is likely to exceed the Threshold Amount, Tenant
shall provide to Landlord, within ten (10) days after Landlord's request
therefor, adequate assurances (in Landlord's reasonable determination) that
Tenant has the financial wherewithal to complete same lien-free and otherwise in
accordance with the terms of this Lease and the Governing Documents. If such
assurances are not, in Landlord's reasonable determination, adequate, then
Landlord may request further financial assurances in the form of a bond or
letter of credit reasonably satisfactory to Landlord in form and substance and
in an amount equal to or greater than Landlord's reasonable estimate of the
anticipated cost of such Alterations.
(b) If Tenant makes any Alterations pursuant to this Paragraph 13
or as required by Paragraph 12 or 17 (such Alterations and actions being
hereinafter collectively referred to as "Work") whether or not Landlord's
consent is required, then (i) the market value of the Leased Premises shall not
be lessened by any such Work or its usefulness impaired, (ii) all such Work
shall be performed by Tenant in a good and workmanlike manner, (iii) all such
Work shall be expeditiously completed in compliance with all Legal Requirements,
(iv) all such Work shall comply with the Insurance Requirements, (v) if any such
Work involves the replacement of Equipment or parts thereto, all replacement
Equipment or parts shall have a value and useful life equal to the greater of
(A) the value and useful life on the date hereof of the Equipment being replaced
or (B) the value and useful life of the Equipment being replaced immediately
prior to the occurrence of the event which required its replacement (assuming
such replaced Equipment was then in the condition required by this Lease), (vi)
Tenant shall promptly discharge or remove all liens filed against any of the
Leased Premises arising out of such Work, (vii) Tenant shall procure and pay for
all permits and licenses required in connection with any such Work, (viii) all
such Work shall be the property of Landlord and shall be subject to this Lease,
and Tenant shall execute and deliver to Landlord any document requested by
Landlord evidencing the assignment to Landlord of all estate, right, title and
interest (other than the leasehold estate created hereby) of Tenant or any other
Person thereto or therein, and (ix) Tenant shall comply, to the extent requested
by Landlord or required by this Lease, with the provisions of Paragraphs 12(a)
and 19(a), whether or not such Work involves restoration of the Leased Premises.
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14. Permitted Contests. Notwithstanding any other provision of this
Lease, Tenant shall not be required to (a) pay any Imposition, (b) comply with
any Legal Requirement, (c) discharge or remove any lien referred to in Paragraph
11 or 13 or (d) take any action with respect to any encroachment, violation,
hindrance, obstruction or impairment referred to in Paragraph 12(b) (such
non-compliance with the terms hereof being hereinafter referred to collectively
as "Permitted Violations") and may dispute or contest the same, so long as at
the time of such contest no Event of Default exists and so long as Tenant shall
contest, in good faith, the existence, amount or validity thereof, the amount of
the damages caused thereby, or the extent of its or Landlord's liability
therefor by appropriate proceedings which shall operate during the pendency
thereof to prevent or stay (i) the collection of, or other realization upon, the
Permitted Violation so contested, (ii) the sale, forfeiture or loss of any of
the Leased Premises or any Rent to satisfy or to pay any damages caused by any
Permitted Violation, (iii) any interference with the use or occupancy of any of
the Leased Premises, (iv) any interference with the payment of any Rent, or (v)
the cancellation or increase in the rate of any insurance policy (unless Tenant
agrees in writing to pay such increase) or a statement by the carrier that
coverage will be denied or (vi) the enforcement or execution of any injunction,
order or Legal Requirement with respect to the Permitted Violation. Tenant shall
provide Landlord security which is satisfactory, in Landlord's reasonable
judgment, to assure that such Permitted Violation is corrected, including all
Costs, interest and penalties that may be incurred or become due in connection
therewith. While any proceedings which comply with the requirements of this
Paragraph 14 are pending and the required security is held by Landlord, Landlord
shall not have the right to correct any Permitted Violation thereby being
contested unless Landlord is required by law to correct such Permitted Violation
and Tenant's contest does not prevent or stay such requirement as to Landlord.
Each such contest shall be promptly and diligently prosecuted by Tenant to a
final conclusion, except that Tenant, so long as the conditions of this
Paragraph 14 are at all times complied with, has the right to attempt to settle
or compromise such contest through negotiations. Tenant shall pay any and all
losses, judgments, decrees and Costs in connection with any such contest and
shall, promptly after the final determination of such contest, fully pay and
discharge the amounts which shall be levied, assessed, charged or imposed or be
determined to be payable therein or in connection therewith, together with all
penalties, fines, interest and Costs thereof or in connection therewith, and
perform all acts the performance of which shall be ordered or decreed as a
result thereof. No such contest shall (i) subject Landlord to the risk of any
criminal liability or any risk of civil fine, penalty or liability for which
Tenant has not agreed in writing to reimburse Landlord, or (ii) shall risk
forfeiture of Tenant's or Landlord's interest in the Severance Lease or the
estate created thereunder.
15. Indemnification.
(a) Tenant shall pay, protect, indemnify, defend, save and hold
harmless Landlord, Lender and all other Persons described in Paragraph 30 (each
an "Indemnitee") from and against any and all liabilities, losses, damages
(including punitive damages), penalties, Costs (including attorneys' fees and
costs), causes of action, suits, claims, demands or judgments of any nature
whatsoever, howsoever caused, without regard to the form of action and whether
based on strict liability, negligence or any other theory of recovery at law or
in equity (each, a "Claim") arising from (i) any matter pertaining to the
acquisition, ownership, use, non-use, occupancy, operation, condition, design,
construction, maintenance, repair or restoration of the Leased Premises, (ii)
any casualty in any manner arising from the
26
Leased Premises, whether or not Indemnitee has or should have knowledge or
notice of any defect or condition causing or contributing to said casualty,
(iii) any violation by Tenant of any provision of this Lease, the Severance
Lease or any underlying or superior ground lease, the Condominium Documents, the
Security Documents, any contract or agreement to which Tenant is a party, any
Legal Requirement or any Permitted Encumbrance or any encumbrance Tenant
consented to or the Mortgage or Assignment, (iv) the Assignment of Severance
Lease and the transactions contemplated by this Lease and the Security
Documents, including, without limitation, any transfer taxes, mortgage recording
taxes or PILOMRT due in connection therewith, whether due as of the date of this
Lease, at the Option Lapse Date in connection with the Beneficial Transfer
Documents, as a result of audit, recharacterization, or otherwise, (v) any claim
for any commission or other fee or compensation payable to any broker or finder
claiming to have dealt with Tenant, Guarantor or any of their Affiliates in
connection with this Lease or any sublease or assignment with respect to the
Leased Premises, (vi) Tenant's failure to comply with the provisions relating to
the "Signage Obligations" under the Severance Lease or (vii) any alleged,
threatened or actual Environmental Violation, including (A) liability for
response costs and for costs of removal and remedial action incurred by the
United States Government, any state or local governmental unit or any other
Person, or damages from injury to or destruction or loss of natural resources,
including the reasonable costs of assessing such injury, destruction or loss,
incurred pursuant to Section 107 of CERCLA, or any successor section or act or
provision of any similar state or local Law, (B) liability for costs and
expenses of abatement, correction or clean-up, fines, damages, response costs or
penalties which arise from the provisions of any of the other Environmental Laws
and (C) liability for personal injury or property damage arising under any
statutory or common-law tort theory, including damages assessed for the
maintenance of a public or private nuisance or for carrying on of a dangerous
activity; provided that, the foregoing indemnifications by Tenant hereunder
shall not apply to any Claim arising solely from the negligence or willful
misconduct of Landlord or any Indemnitee.
(b) In case any action or proceeding is brought against any
Indemnitee by reason of any such Claim, (i) Tenant may, except in the event of a
conflict of interest or a dispute between Tenant and any such Indemnitee or
during the continuance of an Event of Default, retain its own counsel and defend
such action (it being understood that Landlord may employ counsel of its choice
to monitor the defense of any such action, the cost of which shall be paid by
Tenant) and (ii) such Indemnitee shall notify Tenant to resist or defend such
action or proceeding by retaining counsel reasonably satisfactory to such
Indemnitee, and such Indemnitee will cooperate and assist in the defense of such
action or proceeding if reasonably requested so to do by Tenant. In the event of
a conflict of interest or dispute or during the continuance of an Event of
Default, Landlord shall have the right to select counsel, and the cost of such
counsel shall by paid by Tenant
(c) Landlord shall pay, protect, indemnify, defend, save and hold
harmless Tenant, from and against any Claim arising with respect to any claim of
any commission or other fee or compensation payable to any broker or finder
claiming to have dealt with Landlord or any of its Affiliates in connection with
this Lease or any sublease or assignment with respect to the Leased Premises.
(d) The obligations of Tenant under this Paragraph 15 shall
survive any termination, expiration or rejection in bankruptcy of this Lease.
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16. Insurance.
(a) Tenant shall not cause or permit the Condominium (by
affirmative vote therefor or acquiescence therein) to (i) change the amounts or
types of insurance coverage currently required to be maintained by the
Condominium under the terms of the Condominium Documents as in effect on the
date of this Lease in any materially adverse manner (e.g., lessening coverage
limits, lessening or eliminating covered risks, materially increasing
deductibles or placing coverage with a less reliable carrier based upon its
Best's and/or credit rating criteria, without the prior written consent of
Landlord, such consent not to be unreasonably withheld or delayed to the extent
such adverse changes are the result of market conditions or lack of availability
of coverage beyond the reasonable control of the Condominium, or (ii) allow the
insurance coverage with respect to the common elements of the Building required
to be maintained under the terms of Condominium Documents to lapse at any time.
In addition, Tenant shall obtain, pay for and maintain the following insurance
on or in connection with the Leased Premises:
(i) Insurance against all risk of physical loss or damage to
the Improvements and Equipment as provided under "Special Causes of Loss" form
coverage, and including customarily excluded perils of hail, windstorm, flood
coverage, earthquake, terrorism, breakage of glass, inland marine (covering
property in transit), debris removal and demolition costs in amounts no less
than the actual replacement cost of the Improvements and Equipment; provided
that, if Tenant's insurance company is unable or unwilling to include any of all
of such excluded perils, Tenant shall have the option of purchasing coverage
against such perils from another insurer on a "Difference in Conditions" form or
through a stand-alone policy. Such policies shall contain Replacement Cost and
Agreed Amount Endorsements and "Law and Ordinance" coverage (at full replacement
cost). Such policies and endorsements shall contain deductibles not more than
$250,000 per occurrence, except that earthquake coverage may have a deductible
not to exceed $500,000.
(ii) Commercial General Liability Insurance and Business
Automobile Liability Insurance (including Non-Owned and Hired Automobile
Liability) against claims for personal and bodily injury, death or property
damage occurring on, in or as a result of the use of the Leased Premises, in an
amount not less than $50,000,000 per occurrence/ $100,000,000 annual aggregate,
with no self-insured retention or deductible above $500,000, on a claims
occurrence basis. The limits required hereunder may be obtained through
combining Commercial General Liability Insurance and Excess/Umbrella Policies.
(iii) Workers' compensation insurance in the amount required
by applicable Law and employers' liability insurance covering all persons
employed by Tenant in connection with any work done on or about any of the
Leased Premises.
(iv) Comprehensive Boiler and Machinery/Equipment Breakdown
Insurance on any of the Equipment or any other equipment on or in the Leased
Premises, in an amount not less than $5,000,000 per accident for damage to
property (and which may be carried as part of the coverage required under clause
(i) above or pursuant to a separate policy or endorsement). Either such Boiler
and Machinery policy or the Special Causes of Loss policy required in clause (i)
above shall include at least $3,000,000 per incidence for Off-
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Premises Service Interruption, Expediting Expenses, Ammonia Contamination, and
Hazardous Materials Clean-Up Expense and may contain a deductible not to exceed
$250,000.
(v) Business Income/Extra Expense Insurance at limits
sufficient to cover 100% of the period of indemnity not less than twelve (12)
months from time of loss, including extended period of indemnity which provides
that after the physical loss to the Improvements and Equipment has been
repaired, the continued loss of income will be insured until such income either
returns to the same level it was at prior to the loss, or the expiration of six
(6) months from the date that the Leased Premises are repaired or replaced and
operations are resumed, whichever first occurs. If the Tenant is not the Tenant
first-named herein or a Subsidiary or Affiliate of The New York Times Company,
business income/extra expense insurance in an amount no less than the sum of
PILOT and the "Theater Surcharge" applicable to the SPU Areas for one (1) year
as reasonably determined by Tenant, subject to the Landlord's prior written
approval and adjustments from time to time (but not more frequently than once
annually for the first five (5) years after the Commencement Date and,
thereafter, not more frequently than once every two (2) years).
(vi) During any period in which substantial Alterations at
the Leased Premises are being undertaken, builder's risk insurance covering the
total completed value, including all hard and soft costs (which shall include
business interruption coverage) with respect to the Improvements being
constructed, altered or repaired (on a completed value, non-reporting basis),
replacement cost of work performed and equipment, supplies and materials
furnished in connection with such construction, alteration or repair of
Improvements or Equipment, together with such other endorsements as Landlord may
reasonably require, and Tenant shall maintain or shall cause the applicable
general contractor and subcontractors to maintain, general liability, worker's
compensation and automobile liability insurance with respect to the Improvements
being constructed, altered or repaired. Tenant shall be entitled to maintain any
coverage required under this clause (vi) as a sublimit for "Property Under
Construction" under its "all-risk" property/casualty coverage maintained under
clause (i) of this Paragraph 16(a) above.
(vii) Pollution liability insurance with limits of not less
than Five Million Dollars ($5,000,000) (as such sum shall be adjusted for
inflation in accordance with the CPI from and after the Commencement Date) per
occurrence and in the aggregate with a deductible of no more than $1,000,000 (as
such sum shall be adjusted for inflation from in accordance with the CPI from
and after the Commencement Date), providing coverage for bodily injury or
property damage arising from, or cleanup of, actual, alleged or threatened
emissions, discharge, dispersal, seepage, release or escape of Hazardous
Substance from, on, under, in or onto the Leased Premises or any part of the
Land or Building, as the case may be, including any loss, cost, or expense
incurred as a result of the investigation, settlement or defense of any claims,
suit or proceedings against Landlord, including the payment of any monetary
awards of compensatory damages, arising from any such occurrence.
(viii) Such other insurance (or other or different terms
with respect to any insurance required pursuant to this Paragraph 16, including
without limitation amounts of coverage, deductibles, form of mortgagee clause,
insurer rating) on or in connection with any of the Leased Premises as Landlord
or Lender may reasonably require (including,
29
without limitation mold insurance); provided that, such insurance is consistent,
as to types of coverage and amounts, with the requirements generally of
institutional lenders or prudent owners or operators of similar properties
similarly situated and, provided further, at such time as Landlord and/or Lender
requires coverage for mold or microbial matter, Tenant agrees to procure and
maintain such coverage, at its own cost and expense, in an amount no less than
$5,000,000 per occurrence and $5,000,000 general aggregate, with a deductible of
not more than $1,000,000.00; and such mold coverage may be obtained and
maintained under the pollution liability insurance policy under clause (vii) of
this Paragraph 16(a) above.
(b) The insurance required by Paragraph 16(a) shall be written by
companies having a Best's rating of A-:X or above or a claims paying ability
rating of A or better by Standard & Poor's Rating Services, a division of the
McGraw Hill Companies, Inc. ("S&P") or equivalent rating agency approved by
Landlord and Lender in their sole discretion for all primary coverage (or such
lower Best's and S&P ratings as shall be reasonably acceptable to Landlord and
Lender with respect to any excess coverage carrier) and are authorized to write
insurance policies by, the State Insurance Department (or its equivalent) for
the State. The insurance policies (i) shall be for such terms as Landlord may
reasonably approve and (ii) shall be in amounts sufficient at all times to
satisfy any coinsurance requirements thereof. If said insurance or any part
thereof shall expire, be withdrawn, become void, voidable, unreliable or unsafe
for any reason, including a breach of any condition thereof by Tenant or the
failure or impairment of the capital of any insurer, Tenant shall immediately
obtain new or additional insurance reasonably satisfactory to Landlord. The
insurance referred to in Paragraphs 16(a)(i), 16(a)(iv) and 16(a)(vi) shall name
Landlord and Lender as loss payee (but shall name Landlord as an additional
insured after the Option Lapse Date) and Tenant as its interest may appear. The
insurance referred to in Paragraph 16(a)(ii) shall name Landlord, Lender, the
Condominium and its Board, all Public Parties (as such term is defined in the
Declaration), any property manager retained by Tenant or Landlord with respect
to the Leased Premises or the Condominium and any other Person required under
the terms of the Governing Documents, as additional insureds, and the insurance
referred to in Paragraph 16(a)(v) shall name Landlord and Lender as loss payees
as their interests may appear. The general liability insurance coverage with
respect to the common elements of the Building required to be maintained under
the terms of Condominium Documents shall name Landlord and Lender as additional
insureds, and the "All-risk" property/casualty insurance coverage with respect
to the common elements of the Building required to be maintained under the terms
of Condominium Documents shall name Landlord and Lender as loss payees (but
shall name Landlord as an additional insured after the Option Lapse Date) and
Tenant as its interest may appear.
(c) Each insurance policy referred to in clauses (i), (iv), (v)
and (vi) of Paragraph 16(a) shall contain standard non-contributory mortgagee
clauses in favor of and acceptable to Lender. Each policy required by any
provision of Paragraph 16(a), except clause (iii) thereof, the insurer shall
endeavor to provide not less than thirty (30) days' prior written notice to
Landlord and Lender before it may be cancelled, substantially modified or
allowed to lapse on any renewal date, but shall provide each additional insured
with at least ten (10) day prior written notice of any cancellation for
non-payment.
(d) Tenant shall pay as they become due all premiums for the
insurance required by Paragraph 16(a), shall renew or replace each policy and
deliver to
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Landlord evidence of the payment of the full premium therefor or installment not
later than ten (10) days after to the expiration date of such policy, and shall
promptly deliver to Landlord all original certificates of insurance evidencing
such coverages or, if required by Lender, original or certified policies. All
certificates of insurance (including liability coverage) provided to Landlord
and Lender shall be on XXXXX Form 28 (or its equivalent, e.g. ACCORD Form 25 for
liability and ACCORD Form 27s for property/casualty).
(e) Anything in this Paragraph 16 to the contrary
notwithstanding, any insurance which Tenant is required to obtain pursuant to
Paragraph 16(a) may be carried under a "blanket" policy or policies covering
other properties of Tenant or under an "umbrella" policy or policies covering
other liabilities of Tenant, as applicable; provided that, such blanket or
umbrella policy or policies otherwise comply with the provisions of this
Paragraph 16, and upon request, Tenant shall provide to Landlord a Statement of
Values which may be reviewed annually and shall be amended to the extent
determined necessary by Landlord based on revised Replacement Cost Valuations.
The original or a certified copy of each such blanket or umbrella policy shall
promptly be delivered to Landlord.
(f) Tenant shall not carry separate insurance concurrent in form
or contributing in the event of a Casualty with that required in this Paragraph
16 unless (i) Landlord and Lender are included therein as additional insureds,
with loss payable as provided herein, and (ii) such separate insurance complies
with the other provisions of this Paragraph 16. Tenant shall immediately notify
Landlord of such separate insurance and shall deliver to Landlord the original
policies or certified copies thereof.
(g) Each policy required to be maintained by Tenant under this
Paragraph 16 shall contain a full waiver of subrogation in favor of the Landlord
and an effective waiver by the carrier against all claims for payment of
insurance premiums against Landlord; provided that the Commercial General
Liability Insurance wavier must be issued on ISO Form CG24041093 or equivalent;
(h) The proceeds of any insurance required under Paragraph 16(a)
shall be payable as follows:
(i) proceeds payable under clauses (ii), (iii) and (iv) of
Paragraph 16(a) and proceeds attributable to the general liability coverage of
Builder's Risk insurance under clause (vi) of Paragraph 16(a) (only if carried
by Tenant as opposed to a general contractor or subcontractor) and shall be
payable to the Person entitled to receive such proceeds; and
(ii) proceeds of insurance required under clause (i) of
Paragraph 16(a) and proceeds attributable to Builder's Risk insurance (other
than its general liability coverage provisions if carried by Tenant) under
clause (vi) of Paragraph 16(a) shall be payable to Tenant, Landlord, or Lender,
as the case may be, as provided in Paragraph 17 and applied as set forth in
Paragraph 17 or, if applicable, Paragraph 18 or Paragraph 19. Tenant shall apply
the Net Award to restoration of the Leased Premises in accordance with the
applicable provisions of this Lease unless a Termination Event shall have
occurred and Tenant has given a Termination Notice.
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(iii) The parties intend that the terms of this Paragraph
16, and those of Paragraphs 17 and 19, constitute an "express agreement to the
contrary" under Section 227 of the New York State Real Property Law.
(i) If at any time during the Term any Event of Default shall
occur under the provisions of Paragraph 22(a)(xviii), then Landlord shall have
right (but no legal obligation hereunder) to procure the applicable insurance
policy or policies and to charge Tenant all Costs associated with procuring same
as Additional Rent hereunder.
17. Casualty and Condemnation.
(a) The provisions of this Paragraph 17 shall, unless otherwise
expressly stated herein to the contrary, apply solely with respect to a Casualty
or Condemnation affecting the Leased Premises, it being agreed that the rights
and obligations of Tenant or the Condominium with respect to any casualty or
condemnation affecting the Land or Building (but not the Leased Premises) shall
be governed by the terms of the Condominium Documents. If any Casualty to the
Leased Premises occurs, Tenant shall give Landlord and Lender prompt notice
thereof. So long as no Event of Default exists Tenant is hereby authorized to
adjust, collect and compromise all claims under any of the insurance policies
required by Paragraph 16(a) (except public liability insurance claims payable to
a Person other than Tenant, Landlord or Lender) and to execute and deliver on
behalf of Landlord all necessary proofs of loss, receipts, vouchers and releases
required by the insurers and Landlord shall have the right to join with Tenant
therein; provided that, any final adjustment, settlement or compromise of any
such claim in excess of the Threshold Amount shall be subject to the prior
written approval of Landlord, and Landlord shall have the right to prosecute or
contest, or to require Tenant to prosecute or contest, any such claim,
adjustment, settlement or compromise. If an Event of Default exists, Tenant
shall not be entitled to adjust, collect or compromise any such claim or to
participate with Landlord in any adjustment, collection and compromise of the
Net Award payable in connection with a Casualty, and Tenant agrees to sign, upon
the request of Landlord, all such proofs of loss, receipts, vouchers and
releases. Each property insurer shall make all payments under their respective
policies consistent with the provision stating that Landlord is loss payee as
its interests may appear, provided that if payment is made to Landlord and
Tenant jointly, Tenant hereby appoints each of Landlord and Lender as Tenant's
attorneys-in-fact to endorse any draft therefor. The rights of Landlord under
this Paragraph 17(a) shall be extended to Lender if and to the extent that any
Mortgage so provides. The provisions of this Paragraph 17 shall not apply to any
insurance proceeds obtained by Tenant with respect to Tenant's Personal
Property.
(b) Tenant, immediately upon receiving a Condemnation Notice,
shall notify Landlord and Lender thereof. So long as (i) no Event of Default
exists and (ii) Tenant does not give a Termination Notice to Landlord and the
Condemnation is a Partial Condemnation, Tenant is authorized to collect, settle
and compromise the amount of any Net Award and Landlord shall have the right to
join with Tenant therein. If an Event of Default exists, Landlord shall be
authorized to collect, settle and compromise the amount of any Net Award and
Tenant shall not be entitled to participate with Landlord in any Condemnation
proceeding or negotiations under threat thereof or to contest the Condemnation
or the amount of the Net Award therefor. No agreement with any condemnor in
settlement or under threat of any
32
Condemnation in excess of the Threshold Amount shall be made by Tenant without
the written consent of Landlord. Subject to the provisions of this Paragraph
17(b), Tenant hereby irrevocably assigns to Landlord any award or payment to
which Tenant is or may be entitled by reason of any Condemnation, whether the
same shall be paid or payable for Tenant's leasehold interest hereunder or
otherwise; but nothing in this Lease shall impair Tenant's right to any award or
payment on account of Tenant's Personal Property, relocation and moving expenses
or loss of business, if available, but only to the extent that and so long any
claim by Tenant against the condemnor does not reduce the amount of the Net
Award payable to Landlord below the sum of (i) the Option Price, plus (ii)
Landlord's Costs incurred in connection obtaining such Net Award. The rights of
Landlord under this Paragraph 17(b) shall also be extended to Lender if and to
the extent that any Mortgage so provides.
(c) If any Partial Casualty (whether or not insured against) or
Partial Condemnation shall occur, this Lease shall continue, notwithstanding
such event, and there shall be no abatement or reduction of any Monetary
Obligations. Promptly after such Partial Casualty or Partial Condemnation,
Tenant, as required in Paragraphs 12(a) and 13(b), shall commence and diligently
continue to restore the Leased Premises as nearly as possible to their value,
condition and character immediately prior to such event (assuming the Leased
Premises to have been in condition required by this Lease). So long as no Event
of Default exists, any Net Award up to and including the Threshold Amount shall
be paid by Landlord to Tenant and Tenant shall restore the Leased Premises in
accordance with the requirements of Paragraphs 12(a) and 13(b) of this Lease.
Any Net Award in excess of the Threshold Amount shall (unless such Casualty or
Condemnation resulting in the Net Award is a Termination Event) be made
available by Landlord (or Lender, if required by the terms of any Mortgage) to
Tenant through the Restoration Fund for the restoration of any of the Leased
Premises pursuant to and in accordance with the provisions of Paragraph 19
hereof. If any Casualty or Condemnation which is not a Partial Casualty or
Partial Condemnation shall occur, Tenant shall comply with the terms and
conditions of Paragraph 18.
(d) In the event of a Requisition of any of the Leased Premises,
if any Net Award payable by reason of such Requisition is (i) retained by
Landlord, each installment of Basic Rent payable on or after the date on which
the Net Award is paid to Landlord shall be reduced by a fraction, the
denominator of which shall be the total amount of all Basic Rent due from such
date to and including the last Basic Rent Payment Date for the then existing
Term and the numerator of which shall be the amount of such Net Award retained
by Landlord, or (ii) paid to Lender, then each installment of Basic Rent
thereafter payable shall be reduced in the same amount and for the same period
as payments are reduced under the Note until such Net Award has been applied in
full or until the Term has expired, whichever first occurs
(e) If Tenant or any Affiliate of Tenant shall inadvertently or
otherwise directly receive any New Award which it is not entitled to retain or
hold under the terms of this Lease, then Tenant shall cause same to be either
deposited into the Restoration Fund or delivered to Landlord within two (2)
business days of receipt. If Tenant or any Affiliate of Tenant shall
inadvertently or otherwise directly receive any insurance proceeds or award
which it is not entitled to retain or hold under the terms of the Declaration or
By-laws, then Tenant shall cause same to be deposited with the Depository as
required under the terms of the Declaration or By-laws the within two (2)
business days of receipt.
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18. Termination Events.
(a) If either (i) the entire Leased Premises shall be taken by a
Taking (a "Total Taking") or (ii) any substantial portion of the Leased Premises
shall be taken by a Taking or all or any substantial portion of the Leased
Premises shall be damaged or destroyed by a Casualty and Tenant has determined
in good faith that the repair or restoration of the Building or the Leased
Premises in a manner suitable for the continued operation of the business of
Tenant (or its Affiliates) at the Leased Premises is not economically
practicable (a "Termination Trigger Event") (each of a Total Taking or a
Termination Trigger Event shall hereinafter be referred to as a "Termination
Event"), then (x) in the case of a Total Taking, Tenant shall be obligated,
within one hundred twenty (120) days after Tenant receives a Condemnation Notice
and (y) in the case of a Termination Trigger Event, Tenant shall have the
option, within one hundred twenty (120) days after Tenant receives a
Condemnation Notice or one hundred twenty (120) days after the Casualty, as the
case may be, to give to Landlord written notice in the form described in
Paragraph 18(b) of the Tenant's election to terminate this Lease (a "Termination
Notice"). If Tenant elects under clause (y) above not to give Landlord a
Termination Notice, then Tenant shall rebuild or repair the Leased Premises in
accordance with Paragraphs 17 and 19. Notwithstanding the foregoing, (x) Tenant
shall only be entitled to exercise any of the foregoing rights to terminate this
Lease and/or to deliver a Termination Notice upon the occurrence of a
Termination Trigger Event if (1) the terms of Severance Lease and/or the
Condominium Declaration do not require the Condominium and/or Leased Premises to
be rebuilt, and (2) Tenant and each of the other leasehold condominium unit
owners under the Declaration actually exercise their collective right to
purchase the Condominium and terminate their respective severance leases in
accordance with the terms of the Severance Lease and the Condominium Documents.
(b) A Termination Notice shall contain (i) notice of Tenant's
intention to terminate this Lease on the first Basic Rent Payment Date which
occurs at least sixty (60) days after the Termination Notice (the "Termination
Date"), (ii) a binding and irrevocable offer of Tenant to pay to Landlord the
Option Price and (iii) in the case of a Termination Trigger Event a
certification of Tenant to the effect of the facts set forth in clause (i) of
Paragraph 18(a) above and (iv) a certified resolution of the Board of Directors
or Board of Managers, as the case may be, of Tenant authorizing the termination
of the Lease pursuant to the terms of this Paragraph 18.
(c) Only with respect to any Termination Notice received after
the Option Lapse Date, Landlord may reject such offer by Tenant to pay to
Landlord the Option Price pursuant to Paragraph 18(b) above by written notice to
Tenant (a "Rejection"). Unless Tenant shall have received a Rejection not later
than the forty-fifth (45th) day following the date the Termination Notice is
given to Landlord, Landlord shall be conclusively presumed to have accepted such
offer from Tenant to pay the Option Price and the provisions of Paragraph 18(e)
below shall apply. Any Rejection shall advise Tenant as to whether Landlord
requires that Tenant rebuild the Leased Premises and to continue this Lease (a
"Rebuild Demand") or that Landlord elects to reject Tenant's offer to pay the
Option Price and to terminate this Lease as provided in Paragraph 18(d) below.
In the case of a Termination Trigger Event occurring after the Option Lapse
Date, if Landlord's Rejection shall require Tenant to rebuild the Leased
Premises, then, if at the time in question Tenant has the ability through voting
control of the Condominium Board, as-of-right under the Governing Documents or
otherwise, to direct the
34
determination as to whether or not the Building and/or the Leased Premises, as
the case may be, shall be restored or rebuilt, Tenant shall take such
affirmative actions as are necessary or appropriate (including casting all
affirmative votes required) to cause same to be rebuilt and restored and Tenant
shall not be entitled to Terminate this Lease under this Paragraph 18.
Notwithstanding anything to the contrary contained herein, if a Termination
Trigger Event occurs at any time during the last two (2) Lease Years of the
initial fifteen (15) year Term or during last two (2) Lease Years of any Renewal
Term, then Landlord's Rejection shall not be permitted to be a Rebuild Demand,
and Landlord's only options shall be to either accept Tenant's offer to
Terminate the Lease and pay the Option Price or to reject such offer and
terminate this Lease as provided in Paragraph 18(d) below.
(d) If a Rejection sets forth Landlord's election to reject
Tenant's offer to pay the Option Price but not to rebuild and instead to
terminate this Lease, then such Rejection shall contain the written consent of
Lender to such Rejection. In such event, this Lease shall terminate on the
Termination Date; provided that, if Tenant has not satisfied all Monetary
Obligations and all other obligations and liabilities under this Lease which
have arisen on or prior to the Termination Date (collectively, "Remaining
Obligations") on the Termination Date, then Landlord may, at its option, extend
the date on which this Lease may terminate to a date which is no later than the
first Basic Rent Payment Date after the Termination Date on which Tenant has
satisfied all Remaining Obligations; provided that, notwithstanding the
foregoing, if Tenant has satisfied all Monetary Obligations Landlord shall not
be entitled to so extend the termination date as aforesaid if Guarantor provides
an indemnification, defense and hold harmless agreement reasonably satisfactory
to Landlord from and against such other obligations and liabilities of Tenant
under the Lease. Upon such termination (i) all obligations of Tenant hereunder
shall terminate except for any Surviving Obligations, (ii) Tenant shall
immediately vacate and shall have no further right, title or interest in or to
any of the Leased Premises and (iii) the Net Award shall be retained by
Landlord.
(e) On the Termination Date, (unless a Rejection is permitted and
is delivered by Landlord) Tenant shall pay to Landlord the Option Price and all
Remaining Obligations, if any, and, if requested by Tenant, Landlord shall (i)
convey to Tenant or its designee the Leased Premises or the remaining portion
thereof, if any, and (ii) pay to or assign to Tenant or its designee Landlord's
entire interest in and to the Net Award, all in accordance with Paragraph 20.
19. Restoration.
(a) If any Net Award is in excess of the Threshold Amount, then a
portion of such Net Award below the Threshold Amount as Tenant shall reasonably
require to perform immediate repairs or otherwise prevent further damage or
injury to or at the Leased Premises or for imminent health and safety reasons
(including any mitigative or protective actions required by any Legal
Requirement (including directives by any governmental or quasi-governmental
agency) shall be promptly paid to Tenant upon request, and Landlord (or Lender
if required under the terms of the Loan) shall cause the portion of the Net
Award in excess of the Threshold Amount plus any portion of the funds below the
Threshold Amount to which Tenant is not entitled or as to which Tenant has not
made a request as described hereinabove to be deposited with a title company or
institutional lender, as escrow agent, that is mutually and
35
reasonably acceptable to Landlord and Tenant (and to Lender, if applicable),
held by such escrowee in a an interest-bearing fund (the "Restoration Fund"),
and disbursed from the Restoration Fund in accordance with the following
conditions:
(i) prior to commencement of restoration, (A) the
architects, contracts, contractors, plans and specifications and a budget for
the restoration shall have been approved by Landlord (such approval not to be
unreasonably withheld, delayed or conditioned; it being agreed that Xxxxx Xxxxx
Building Workshop and Fox & Xxxxx Architects PC (or their respective successor
firms) are hereby pre-approved as architects), (B) Landlord and Lender shall be
provided with mechanics' lien insurance (if available) and acceptable
performance and payment bonds which insure satisfactory completion of and
payment for the restoration, are in an amount and form and have a surety
reasonably acceptable to Landlord, and name Landlord and Lender as additional
dual obligees, and (C) to the extent permitted by applicable Laws, appropriate
waivers of mechanics' and materialmen's liens shall have been filed or obtained;
(ii) at the time of any disbursement, no Event of Default
shall exist and no mechanics' or materialmen's liens shall have been filed
against any of the Leased Premises and remain undischarged;
(iii) disbursements shall be made from time to time in an
amount not exceeding the cost of the Work completed since the last disbursement
(other than the first disbursement), upon receipt of (A) satisfactory evidence,
including architects' certificates, of the stage of completion, the estimated
total cost of completion and performance of the Work to date in a good and
workmanlike manner in accordance with the contracts, plans and specifications,
(B) waivers of liens for prior work performed and paid for, (C) contractors' and
subcontractors' sworn statements as to completed Work and the cost thereof for
which payment is requested, (D) a satisfactory bringdown of title insurance and
(E) other evidence of cost and payment so that Landlord can verify that the
amounts disbursed from time to time are represented by Work that is completed,
in place and free and clear of mechanics' and materialmen's lien claims;
(iv) each request for disbursement shall be accompanied by a
certificate of Tenant, signed by the president or a vice president of Tenant,
describing the Work for which payment is requested, stating the cost incurred in
connection therewith, stating that Tenant has not previously received payment
for such Work and, upon completion of the Work, also stating that the Work has
been fully completed and complies with the applicable requirements of this
Lease;
(v) Landlord may retain ten percent (10%) of the Restoration
Fund until the Work is 50% completed, thereafter five percent (5%) of the
Restoration Fund until the Work is substantially completed at which time the
retainage shall be released, except that an amount equal to 125% of the
estimated cost to complete any open punch list items shall be held until all
punch-list items are completed;
(vi) if the Restoration Fund is held by Landlord, the
Restoration Fund shall not be commingled with Landlord's other funds and shall
bear interest at a rate agreed to by Landlord and Tenant; and
36
(vii) such other reasonable conditions as Landlord or Lender
may impose; provided such conditions are consistent with conditions then
generally imposed or required by prudent institutional construction lenders for
similar properties similarly situated.
(b) Prior to commencement of restoration and at any time during
restoration, if the estimated cost of completing the restoration Work free and
clear of all liens, as determined by Landlord, exceeds the amount of the Net
Award available for such restoration (a "Deficiency") then (i) if such
Deficiency is equal to or in excess of the Threshold Amount, then the amount of
such Deficiency shall, upon demand by Landlord, be paid by Tenant into and to be
added to the Restoration Fund, or (ii) if such Deficiency is less than the
Threshold Amount, then Tenant shall not be obligated to pay such amount into the
Restoration Fund, but escrow agent shall not be required to release any funds to
Tenant from the Restoration Fund (other than as provided in Paragraph 19(a) with
respect to amounts below the Threshold Amount for immediate repairs and the
like) until such time as Tenant has expended its own funds in an amount at least
equal to the Deficiency towards the repair or restoration of the Leased Premises
and has provided reasonable and customary documentary support therefor to
Landlord and such escrowee. Any Deficiency sum so added by Tenant which remains
in the Restoration Fund upon completion of restoration shall be refunded to
Tenant. For purposes of determining the source of funds with respect to the
disposition of funds remaining after the completion of restoration, the Net
Award shall be deemed to be disbursed prior to any amount added by Tenant.
(c) If any sum remains in the Restoration Fund after completion
of the Work and any refund to Tenant pursuant to Paragraph 19(b), such sum shall
be paid to Tenant.
20. Procedures Upon Purchase.
(a) If the Leased Premises is purchased by Tenant pursuant to any
provision of this Lease, Landlord need not convey any better title thereto than
that which was conveyed to Landlord, and Tenant shall accept such title,
subject, however, to the Permitted Encumbrances and to all other liens,
exceptions and restrictions on, against or relating to any of the Leased
Premises and to all applicable Laws, but free of the lien of and security
interest created by any Mortgage or Assignment and liens, exceptions and
restrictions on, against or relating to the Leased Premises which have been
created by or resulted solely from acts of Landlord after the date of this
Lease, unless the same are Permitted Encumbrances or customary utility easements
benefiting the Leased Premises or were created with the written consent of
Tenant or as a result of a default by Tenant under this Lease.
(b) Upon the date fixed for any such purchase of the Leased
Premises pursuant to any provision of this Lease (any such date the "Purchase
Date"), Tenant shall pay to Landlord, or to any Person to whom Landlord directs
payment, the relevant amount therefor specified herein, in Federal Funds, less,
if applicable, any credit of the Net Award received and retained by Landlord or
a Lender allowed against the relevant amount, and Landlord shall deliver to
Tenant (i) an assignment of the Severance Lease which describes the premises
being conveyed and conveys the title thereto as provided in Paragraph 20(a),
plus all Costs incurred by Landlord in connection with such purchase
transaction, (ii) such other instruments as shall be necessary to transfer to
Tenant or its designee any other property (or rights to any Net Award not yet
received by Landlord or a Lender) then required to be sold by Landlord to Tenant
pursuant to this
37
Lease and (iii) any Net Award received by Landlord, not credited to Tenant
against the relevant amount and required to be delivered by Landlord to Tenant
pursuant to this Lease; provided, that if any Monetary Obligations remain
outstanding on such date, then Landlord may deduct from the Net Award the amount
of such Monetary Obligations; and further provided, that if Landlord shall have
received a written claim or demand with respect to any event that has occurred
which, in Landlord's reasonable judgment, is reasonably likely to subject any
Indemnitee to a liability for which Tenant is required to indemnify against
pursuant to Paragraph 15 and which is not covered by Tenant's insurance, then an
amount shall be deducted from the Net Award which, in Landlord's reasonable
judgment, is sufficient to satisfy such liability, which amount shall be
deposited in an escrow account with a financial institution reasonably
satisfactory to Landlord and Tenant pending resolution of such matter. If on the
Purchase Date any Monetary Obligations remain outstanding and no Net Award is
payable to Tenant by Landlord or the amount of such Net Award is less than the
amount of the Monetary Obligations, then Tenant shall pay to Landlord on the
Purchase Date the amount of such Monetary Obligations. Upon the completion of
such purchase, this Lease and all obligations and liabilities of Tenant
hereunder shall terminate, except any Surviving Obligations.
(c) If the completion of such purchase (i) shall be delayed after
the Termination Date, in the event of a purchase pursuant to Paragraph 18 or,
(ii) shall be delayed with the written approval of Landlord after the date
scheduled for such purchase, in the event of a purchase under any other
provision of this Lease then (x) the Term of the Lease shall be extended and all
Rent shall continue to be due and payable until completion of such purchase.
Nothing herein is intended to diminish or supersede any "time of the essence"
provision contained in this Lease or to grant any party a right to extend any
scheduled closing date
(d) Any prepaid Monetary Obligations paid to Landlord shall be
prorated as of the Purchase Date, and the prorated unapplied balance shall be
deducted from the relevant amount due to Landlord; provided, that no
apportionment of any Impositions shall be made upon any such purchase. Any
Prepayment Premium due Lender in connection with such purchase shall be payable
by Tenant except as otherwise expressly provided in Paragraph 31(b) hereof to
the contrary.
21. Assignment and Subletting, Prohibition Against Leasehold Financing
(a) Except as otherwise expressly provided to the contrary in
this Xxxxxxxxx 00, Xxxxxx may not assign this Lease, voluntarily or
involuntarily, whether by operation of law or otherwise (including through
merger or consolidation) to any Person, other than to a Person which is and
continues throughout the Term to be a single purpose, bankruptcy remote, direct
or indirect wholly-owned subsidiary of Tenant and Guarantor or is a Credit
Entity, without the prior written consent of Landlord, which consent may be
granted or withheld by Landlord in accordance with the provisions of Paragraphs
21(b) below, as applicable, and subject, in each case, to the provisions of
Paragraphs 21(j) and 21(k) below. Any purported sublease or assignment in
violation of this Paragraph 21 (including an Affiliate transaction in violation
of the provisions of Paragraphs 21(j) or 21(k) below) shall be null and void. In
addition, notwithstanding anything to the contrary contained in this Paragraph
21, Tenant shall not have the right to assign this Lease (voluntarily or
involuntarily, whether by operation of law or otherwise), or sublet any of the
Leased Premises to any Person at any time that an Event of Default exists. As
used herein, the term "Credit Entity" shall mean any Person that immediately
38
following such assignment and having given effect thereto will have (i) a
publicly traded unsecured senior debt rating of "A2" or better from Xxxxx'x or a
rating of "A" or better from S&P, and in the event both such rating agencies
cease to furnish such ratings, then a comparable rating by any rating agency
acceptable to Landlord and Lender, and (ii) a net worth of not less than Three
Billion ($3,000,000,000) Dollars.
(b) If Tenant desires to assign this Lease, whether by operation
of law or otherwise, to a Person ("Non-Preapproved Assignee") that is not either
a single purpose, bankruptcy remote, direct or indirect wholly-owned subsidiary
of Tenant and Guarantor or a Credit Entity (a "Non-Preapproved Assignment") then
Tenant shall, not less than forty-five (45) days prior to the date on which it
desires to make a Non-Preapproved Assignment, submit to Landlord and Lender
information regarding the following with respect to the Non-Preapproved Assignee
(collectively, the "Review Criteria"): (A) credit, (B) capital structure, (C)
management, (D) operating history, (E) proposed use of the Leased Premises and
(F) risk factors associated with the proposed use of the Leased Premises by the
Non-Preapproved Assignee, taking into account factors such as environmental
concerns, product liability and the like. Landlord and Lender shall review such
information and shall approve or disapprove the Non-Preapproved Assignee no
later than the thirtieth (30th) day following receipt of all such information,
and Landlord and Lender shall be deemed to have acted reasonably in granting or
withholding consent if such grant or disapproval is based on their review of the
Review Criteria applying prudent business judgment. If a response is not
received by Tenant by the expiration of such thirty (30) day period, such
non-Preapproved Assignee shall be deemed disapproved. Notwithstanding anything
in this Paragraph 21 or elsewhere in this Lease to the contrary, any assignment
of this Lease by Tenant shall be subject to the written consent of 42DP (as
lessor under the Severance Lease) to the extent such consent is required under
the terms of either the Severance Lease or any written consent issued by 42DP in
connection its approval of this lease transaction.
(c) Tenant shall have the right, upon ten (10) business days
prior written notice to Landlord and Lender, to enter into one or more subleases
with first-class office tenants at then current market sublease rates, for
general, executive and administrative office uses permitted under this Lease,
that demise, in the aggregate, up to seventy-nine percent (79%) of the rentable
area of the Unit, with no consent or approval of Landlord being required or
necessary (each, a "Preapproved Sublet"); but subject, in all events, to the
terms of Paragraphs 21(d), (e), (f), and (g) below. Other than pursuant to
Preapproved Sublets, at no time during the Term shall subleases exist for more
than seventy-nine percent (79%) of the rentable area of the Improvements at the
Leased Premises without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, delayed or conditioned based on a review of
the Review Criteria as they relate to the proposed sublessee and the terms of
the proposed sublease. Notwithstanding the foregoing no sublease shall be
permitted that requires Tenant to provide any exterior logo or identification
monument or signage on the exterior of the Building to any subtenant that is
primarily engaged in sale-leaseback or credit tenant leasing transactions.
(d) If Tenant assigns all its rights and interest under this
Lease, the assignee under such assignment shall expressly assume all the
obligations of Tenant hereunder, actual or contingent, including obligations of
Tenant which may have arisen on or prior to the date of such assignment, by a
written instrument delivered to Landlord at the time of such
39
assignment. Each sublease of any of the Leased Premises (A) shall be expressly
subject and subordinate to this Lease and any Mortgage (including the Landlord
Mortgage) encumbering the Leased Premises; (B) not extend beyond the then
current Term minus one day; (C) terminate upon any termination of this Lease,
unless Landlord elects in writing, to cause the sublessee to attorn to and
recognize Landlord as the lessor under such sublease, whereupon such sublease
shall continue as a direct lease between the sublessee and Landlord upon all the
terms and conditions of such sublease; and (D) bind the sublessee to all
covenants contained in this Lease with respect to subleased premises to the same
extent as if the sublessee were the Tenant; provided that, Landlord will grant
non-disturbance rights to subtenants pursuant to a subordination non-disturbance
and attornment agreement (an "SNDA") substantially in the form of Exhibit "G",
annexed hereto, in connection with a sublease for one or more multiple full
floors of the Leased Premises to a creditworthy subtenant (as reasonably
determined by Landlord) wherein the terms of such sublease provide for fixed
annual rent equal to or greater than the Basic Rent due under this Lease (on per
rentable square foot basis) at all times during the sublease term; and provided
further, as to any subtenant under a sublease demising two (2) full floors or
more of the Building and as to which Landlord has provided an SNDA, such
sublease shall provide that upon the written request of Landlord (not more often
than once per annum) such subtenant shall provide the financials required under
the provisions of Paragraph 28(b) hereof (so long as Landlord agrees in writing
to keep same confidential and provided such delivery of financials shall not be
required by such subtenant if same are available to Landlord by electronic
disclosure as provided in Paragraph 28(a) hereof). No assignment or sublease
shall affect or reduce any of the obligations of Tenant hereunder or of the
Guarantor under the Guaranty, and all such obligations of Tenant and Guarantor
shall continue in full force and effect as obligations of a principal and not as
obligations of a guarantor, as if no assignment or sublease had been made;
except that, in the case of a Pre-Approved Assignment to a Credit Entity, if the
Credit Entity is the successor-Tenant under this Lease or is a guarantor of the
payment and performance of Tenant's obligations under this Lease pursuant to a
new Guaranty substantially in form and substance the same as the Guaranty
executed by Guarantor as of the Commencement Date of this Lease, then Tenant
shall be entitled to a release of any further obligations under this Lease and
Guarantor shall be entitled to a release of any further obligations under the
Guaranty, in each case, arising after the date of such assignment. In such
event, Tenant shall give Landlord prompt notice thereof and shall request such
release. Thereafter, Landlord shall promptly seek to confirm whether such
successor-Tenant (or successor-Guarantor, as the case may be) is a Credit Entity
and such release shall be granted by Landlord in writing in recordable form
within in ten (10) days of Tenant's written request. No assignment or sublease
shall impose any additional obligations on Landlord under this Lease. No SNDA
shall be granted to any Affiliate of Tenant or any Guarantor. Concurrently
herewith, Tenant has entered into an operating sublease (the "Operating Lease")
for all of the Leased Premises with The New York Times Company, as sublessee
("sublessee") the form and content of such Operating Lease having been reviewed
and approved by Landlord and Landlord hereby confirms that sublessee under the
Operating Lease shall have all of the rights set forth in the Operating Lease;
provided, however, Tenant shall not amend or modify the terms or provisions of
the Operating Lease or terminate or accept a voluntary surrender of the
Operating Lease, in any case, without the express prior written consent of
Landlord in its sole discretion, except that sublessee shall have the right to
assign its interest in the Operating Lease to a wholly-owned Subsidiary of
sublessee (subject only to the notice requirements under Paragraph 21(f) below).
40
(e) Notwithstanding any provision in this Paragraph 21 or
elsewhere in this Lease to the contrary, including any right or option Tenant
may have to assign this Lease or sublease all or any portion of the Leased
Premises without Landlord's consent, Tenant shall, upon the request of Landlord,
provide and cause such assignee or sublessee to provide, such information
(including, without limitation, any certification) as to any proposed assignee
or sublessee and its principals as may be required for Landlord and Tenant to
comply with regulations administered by the Office of Foreign Asset Control
("OFAC") of the Department of the Treasury, codified at 31 C.F.R. Part 500
(including those named on OFAC's Specially Designated and Blocked Persons list)
or under any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental action
regarding persons or entities with whom U.S. persons or entities are restricted
from doing business (including persons or entities who have violated the U.S.
Foreign Corrupt Practices Act 15 U.S.C. Sections 78dd-1, 78dd-2 and 78dd-3).
(f) Tenant shall, within ten (10) days after the execution and
delivery of any assignment or sublease, deliver a duplicate original copy
thereof to Landlord which, in the event of an assignment, shall be in recordable
form. With respect to any assignment to a direct or indirect wholly-owned
Subsidiary of Tenant and Guarantor or to a Credit Entity or any Preapproved
Sublet, at least ten (10) days prior to the effective date of such assignment or
sublease, Tenant shall provide to Landlord information reasonably required by
Landlord to establish that the Person involved in any such proposed assignment
or sublet satisfies the criteria set forth in this Lease for a Preapproved
Assignment or Preapproved Sublet; provided that Landlord agrees that it shall
keep any such information confidential and shall execute a customary and
reasonable form of confidentiality agreement if so requested by Tenant or
Guarantor.
(g) Subject to the following provisions of this Paragraph 21(g)
if applicable, there shall be no sharing by Landlord in any subletting income or
profits and all such sublease income and profits shall be retained by Tenant. As
security for performance of its obligations under this Lease, Tenant hereby
grants, conveys and assigns to Landlord all right, title and interest of Tenant
in and to all subleases now in existence or hereafter entered into for any or
all of the Leased Premises, any and all extensions, modifications and renewals
thereof and all rents, issues and profits therefrom. Landlord hereby grants to
Tenant a license to collect and enjoy all rents and other sums of money payable
under any sublease of any of the Leased Premises; provided, however, that
Landlord shall have the absolute right, exercisable at any time that an Event of
Default under this Lease has occurred and is continuing, upon written notice to
Tenant and any subtenants to revoke said license (except in the case of an Event
of Default under Paragraph 22(a)(viii) or (a)(ix), in which case such revocation
shall be automatic and no notice to Tenant shall be required) and to collect
such rents and sums of money and to retain the same. Any amounts collected shall
be applied to Rent payments next due and owing. At any time that an Event of
Default shall have occurred and then be continuing, Tenant shall not consent to,
cause or allow any modification or alteration of any of the terms, conditions or
covenants of any of the subleases or the termination thereof, without the prior
written approval of Landlord which consent shall not be unreasonably withheld
nor shall Tenant accept any rents more than thirty (30) days in advance of the
accrual.
41
(h) Tenant shall not have the power to mortgage, pledge or
otherwise encumber its interest under this Lease or any sublease of the Leased
Premises, and any such mortgage, pledge or encumbrance, or assignment or other
conveyance or transfer, made in violation of this Paragraph 21 shall be void and
of no force and effect. Further, Tenant shall have no right to assign or
otherwise convey or transfer its beneficial interest in the Leased Premises
(even if same is subject to the interests of Landlord therein as mortgagee);
provided, however, the foregoing shall not modify, alter, or diminish Tenant's
right to assign its interest as lessee under this Lease to the extent permitted
elsewhere in this Paragraph 21 or to exercise the Purchase Option (including its
right to assign the Purchase Option during the Option Window to the extent
permitted under Paragraph 34).
(i) Subject to the provisions of Paragraphs 34 and 35 hereof
(Tenant's option to purchase and right of first offer), Landlord may sell or
transfer the Leased Premises at any time without Tenant's consent to any third
party (each a "Third Party Purchaser") upon ten (10) days prior written notice
to Tenant, except to a Tenant Competitor. In the event of any such transfer,
Tenant shall attorn to any Third Party Purchaser as Landlord so long as such
Third Party Purchaser and Landlord notify Tenant in writing of such transfer. At
the request of Landlord, Tenant will execute such documents confirming the
agreement referred to above and such other agreements as Landlord may reasonably
request, provided that such agreements do not increase the liabilities and
obligations of Tenant hereunder nor diminish the Tenant's rights hereunder, in
any material respect. For purposes of this Paragraph 21(i), a "Tenant
Competitor" shall mean any Person (i) whose primary business is the collection
and distribution of news by one or more of the following: media, newspapers,
magazines, internet, television and/or the radio, or (ii) who derives more than
$2 Billion in revenue during the most recent calendar year from the collection
or distribution of news by one or more of the following: media, newspapers,
magazines, internet, television and/or the radio, provided that the foregoing
shall not preclude a Sale to a Third Party Purchaser that is a bona fide
institutional investor, real estate investment company, trust or fund, or
sovereign wealth fund that, in any case, would otherwise constitute a Tenant
Competitor under clause (ii) hereof as a result of its holdings.
(j) Tenant shall not, in a single transaction or series of
transactions (including any interim merger or consolidation), enter into an
agreement to sell or convey, transfer or lease or sell or convey, transfer or
lease all or substantially all of its assets (an "Asset Transfer") to any
Person, and any such Asset Transfer shall be deemed an assignment in violation
of this Lease; except that Tenant shall have the right to conduct an Asset
Transfer to a Person without Landlord's consent if the following conditions are
met: (i) the Asset Transfer is to a Person that (A) immediately following such
transaction or transactions, taken in the aggregate, is (or would be, on a pro
forma basis) a Credit Entity or (B) is approved in writing by Landlord under the
Review Criteria as a Non-Preapproved Assignee in accordance with the provisions
of Paragraph 21(b) of this Lease and (ii) this Lease is assigned to and assumed
by such Person as a part of such Asset Transfer. In the event of an Asset
Transfer to a Subsidiary Tenant, any subsequent sale of the assets of the
original Tenant named herein by such Subsidiary Tenant shall be governed by the
requirements of this subparagraph (i) irrespective of whether or not such sale
would be considered a sale of all or substantially all of the assets of such
Subsidiary.
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(k) At no time during the Term shall any Person or "group"
(within the meaning of Section 13(d) or Section 14(d) of the Securities Exchange
Act of 1934, as amended) pursuant to a single transaction or series of
transactions (i) acquire, directly or indirectly, more than 50% of the voting
stock, partnership interests, membership interests or other equitable and/or
beneficial interests of Tenant ("Control") or (ii) obtain, directly or
indirectly, the power (whether or not exercised) to elect a majority of the
directors of Tenant or voting control of any partnership or limited liability
company or other entity acting as its general partner or managing member
(including through a merger or consolidation of Tenant with or into any other
Person), unless the purchaser of such Control or Person who acquires such voting
power shall: (A) after taking into account the transaction that resulted in the
acquisition of such Control or voting power, be a Credit Entity and such Person
shall enter into a guaranty reasonably satisfactory to Landlord pursuant to
which it guarantees the payment and performance of the obligations of Tenant
under this Lease (so long as such new guaranty is no less favorable to Landlord
in any material respect than the form of Guaranty executed by Guarantor
hereunder concurrently with the execution of this Lease) or (B) be approved in
writing by Landlord under the Review Criteria as a Non-Preapproved Assignee in
accordance with the provisions of Paragraph 21(b) above. Except as permitted in
this Paragraph 21(k) above, any such change of Control or voting power (by
operation of law, merger, consolidation or otherwise) shall be deemed as an
assignment of this Lease to a Non-Preapproved Assignee and the approval of
Landlord and Lender shall be required as set forth in Paragraph 21(b) above and
any consummation of such assignment absent such approval shall be in violation
of this Lease; provided, however, that a deemed assignment pursuant to the
transfer of the outstanding capital stock of Tenant or Guarantor shall not be
deemed to include the sale of such stock by persons or parties through the
"over-the-counter market" or through any recognized stock exchange, other than
by those deemed to be a "control-person" within the meaning of the Securities
Exchange Act of 1934 and, provided further, notwithstanding anything to the
contrary contained in this Paragraph 21(k), the foregoing shall not preclude any
change of Control of the interests of The New York Times Company or any
subsequent Guarantor.
22. Events of Default.
(a) The occurrence of any one or more of the following (after
expiration of any applicable notice and cure period) shall constitute an "Event
of Default" under this Lease:
(i) a failure by Tenant to make any payment of (A) any Basic
Rent on or prior to its due date, regardless of the reason for such failure, and
such failure remains uncured for five (5) days from the date on which notice of
such failure is given by Landlord, but Landlord shall not be obligated to give
notice of, or allow any cure period for, any such default more than two (2)
times within any Lease Year or (B) any other Monetary Obligation due under this
Lease on or prior to its due date, regardless of the reason for such failure and
such failure remains uncured for twenty (20) days from the date on which notice
of such failure is given by Landlord;
(ii) a failure by Tenant duly to perform and observe, or a
violation or breach of, any other provision hereof not otherwise specifically
mentioned in this Paragraph 22(a) or a failure by Tenant to maintain in effect
any license or permit necessary for
43
the use, occupancy or operation of the Leased Premises and, in any such case,
such failure continues uncured for thirty (30) days from the date on which
notice thereof is given by Landlord; provided that, if the default is of an
nature that it is not reasonably susceptible to cure within such thirty (30) day
period then the cure period shall be extended for the period reasonably required
to cure the default (but such cure period, including any extension, shall not in
the aggregate exceed any outside cure date set forth in any Loan, provided same
shall in no event be less than ninety (90) days plus extension by reason of
force majeure), provided that Tenant shall promptly commence to cure the default
within the said thirty (30) day period and thereafter shall continuously (to the
extent feasible), actively, diligently and in good faith proceed with the curing
of such default until it shall be cured;
(iii) any representation or warranty made by Tenant herein
or in any certificate, demand or request made pursuant hereto now or hereafter
proves to have been incorrect when made, in any material respect, or Tenant
shall fail to maintain its status as a single-purpose, bankruptcy remote entity
in accordance with the terms of its operating agreement and/or its articles of
organization as in effect on the date of this Lease; and any such incorrectness
or failure remains uncured for five (5) days from the date on which notice
thereof is given by Landlord;
(iv) intentionally omitted;
(v) intentionally omitted;
(vi) intentionally omitted;
(vii) Tenant shall cause or permit any default beyond the
expiration of any applicable notice and cure period to occur under any of the
Severance Lease, the Condominium Documents or the Security Documents;
(viii) Tenant shall (A) voluntarily be adjudicated a
bankrupt or insolvent, (B) seek or consent to the appointment of a receiver or
trustee for itself or for the Leased Premises, (C) file a petition seeking
relief under the bankruptcy or other similar laws of the United States, any
state or any jurisdiction, (D) make a general assignment for the benefit of
creditors, or (E) be unable to pay its debts as they mature;
(ix) a court shall enter an order, judgment or decree
appointing, without the consent of Tenant, a receiver or trustee for it or for
any of the Leased Premises or approving a petition filed against Tenant which
seeks relief under the bankruptcy or other similar laws of the United States,
any state or any jurisdiction, and such order, judgment or decree shall remain
undischarged or unstayed ninety (90) days after it is entered;
(x) the Leased Premises shall have been (A) vacated in
excess of thirty (30) consecutive days (other than with respect to a period of
repair or restoration following a Casualty or Condemnation) or (B) abandoned;
(xi) Tenant shall be liquidated or dissolved or shall begin
proceedings towards its liquidation or dissolution;
44
(xii) the estate or interest of Tenant in any of the Leased
Premises shall be levied upon or attached in any proceeding and such estate or
interest is about to be sold or transferred or such process shall not be vacated
or discharged within sixty (60) days after it is made;
(xiii) If Tenant shall be in default under any provision of
any SNDA or any other document executed by and between Tenant and Lender or
executed by Tenant for the express benefit of Lender, and (i) Tenant has been
given notice of such failure by Landlord or Lender and such failure remains
uncured for five (5) business days from the date on which notice of such failure
is given by Landlord or Lender and (ii) such default gives rise to a default
with respect to any Loan;
(xiv) from and after the Option Lapse Date, Tenant's failure
to comply with the provisions of Paragraph 33 of this Lease or otherwise fails
to account for this Lease as true lease in accordance with the terms thereof and
such failure remains uncured for fifteen (15) days from the date on which notice
of such failure is given by Landlord;
(xv) a failure by Tenant to deliver the estoppel described
in Paragraph 25 within the time period specified therein and such failure
remains uncured for ten (10) days from the date on which notice of such failure
is given by Landlord ;
(xvi) Tenant shall enter into any assignment or sublease in
violation of Paragraph 21 (other than pursuant to court order) including any
Asset Transfer in violation of Paragraph 21(j) or change of Control in violation
of Paragraph 21(k);
(xvii) an Event of Default (as defined in the Guaranty)
beyond any applicable cure period shall occur under the Guaranty, or the
Guaranty shall be terminated or the Guarantor released (other than pursuant to
Paragraph 21(d) hereof ) or rejected in a bankruptcy proceeding without, in any
case, the express prior written consent of Landlord;
(xviii) Tenant shall fail to maintain or otherwise permit
any lapse of policy or coverage with respect to any the insurance required to be
maintained by Paragraph 16 and such failure or lapse shall remain uncured (i) as
of the day prior to the effective date of cancellation of any such policy or
coverage as set forth in a written notice from the applicable insurer, or, (ii)
three (3) business days from the date on which notice of such failure is given
by Landlord, and
(xix) Tenant shall fail to restore any Security Deposit then
being held pursuant to the provisions of Paragraph 37 to its full amount in
accordance with the provisions of Paragraph 37(c) and such failure continues for
five (5) days after notice thereof from Landlord.
(b) Notwithstanding the provisions of Paragraph 22(a) above, no
notice or cure period shall be required in any one or more of the following
events: the occurrence of an Event of Default under clause (iv), (v), (vi),
(vii), (viii), (ix), (x), (xi), (xiii), (xvi), or (xvii) of Paragraph 22(a).
45
(c) Tenant hereby covenants and agrees that it shall deliver to
Landlord, within three (3) business days after the Option Lapse Date shall
occur, the Beneficial Transfer Documents duly executed by Tenant (as and where
required). If Tenant shall fail to so execute and deliver to Landlord the
Beneficial Transfer Documents as aforesaid within such three (3) business day
period, then, in addition to the Events of Default set forth in Paragraph 22(a)
above, such failure shall constitute a limited remedy default (the "Limited
Remedy Default"); provided that Landlord's sole remedy with respect to such
Limited Remedy Default shall be the right to foreclose upon Tenant's beneficial
interest in the Leased Premises under the Landlord Mortgage (whether by judicial
foreclosure or power of sale), it being expressly acknowledged and agreed by
Tenant that no notice or cure period shall be required to be given by Landlord
under this Lease prior to the commencement of any such remedy by Landlord, that
such remedy shall be, to the fullest extent permitted by applicable Laws,
cumulative and concurrent and not exclusive of any other remedy that Landlord
may be entitled to with respect to any other Event of Default under this Lease
and shall be exercisable at the sole discretion of Landlord; provided that the
failure of Tenant to transfer beneficial title to the Leased Premises hereunder
shall not, by itself, operate to terminate this Lease or constitute a separate
Event of Default under Paragraph 22(a) hereof. Upon the delivery of the
Beneficial Transfer Documents and the recording of the True Assignment and the
payment of all applicable transfer taxes thereon, Landlord shall record a
satisfaction of the Landlord Mortgage.
23. Remedies and Damages upon Default.
(a) If an Event of Default shall have occurred and be continuing
beyond the expiration of any applicable notice and/or cure period, then Landlord
shall have the right, at its sole option, then or at any time thereafter, to
exercise its remedies and to collect damages from Tenant in accordance with this
Paragraph 23 without further demand upon or notice to Tenant, except as
otherwise expressly provided below in this Paragraph 23 and, subject in all
events, to any conditions and limitations of applicable Law (including any
additional notice requirements under the New York RPAPL):
(i) With respect to any Event of Default beyond the
expiration of any applicable notice and cure period occurring prior to the
Option Lapse Date (other than the Limited Remedy Default), Landlord shall be
entitled to exercise any and all rights and remedies available to a mortgagee
under the Laws of the State, as secured creditor under the Landlord Mortgage.
However, notwithstanding the foregoing, to the fullest extent permitted by Law
(if at all), Landlord shall be entitled to exercise any and all rights and
remedies available to Landlord under the terms of this Lease or to a lessor
under the Laws of the State (including any summary proceedings, such as
successive proceedings for non-payment of rent) other than a landlord/tenant
remedy with respect to (x) the termination of this Lease, (y) the termination of
Tenant's right of possession of the Leased Premises or (z) the repossession of
the Leased Premises, all of which shall be governed by the first sentence of
this Paragraph 23(a)(i);
(ii) With respect to any Event of Default beyond the
expiration of any applicable notice and cure period occurring after the Option
Lapse Date;
(A) Landlord may terminate this Lease by giving Tenant
written notice thereof; such termination to be effective as of the date
specified in such notice
46
unless a longer notice period is prescribed by applicable Law (in which event,
such longer period shall deemed set forth in such notice and shall control).
Upon such date, this Lease, the estate hereby granted and all rights of Tenant
hereunder shall expire and terminate and Tenant shall immediately surrender and
deliver possession of the Leased Premises to Landlord in accordance with and in
the condition required by Paragraph 26 hereof. If Tenant does not so surrender
and deliver possession of all of the Leased Premises, Landlord may re-enter and
repossess any of the Leased Premises not surrendered, pursuant to legal process,
by peaceably entering any of the Leased Premises and changing locks or by
summary proceedings, ejectment or any other lawful means or procedure.
(B) Landlord may terminate Tenant's right of possession (but
not this Lease) and may repossess the Leased Premises by any available legal
process without thereby releasing Tenant from any liability hereunder and
without demand or notice of any kind to Tenant and without terminating this
Lease.
(C) Upon or at any time after taking possession of any of
the Leased Premises pursuant to clause (ii)(A) or (ii)(B) above, Landlord may,
pursuant to legal process, remove any Persons or property therefrom (subject to
the terms of any SNDA). Landlord shall be under no liability for or by reason of
any such entry, repossession or removal. Notwithstanding such entry or
repossession, Landlord may collect the damages set forth in Paragraph 23(b)(i)
and 23(b)(ii).
(D) After repossession of any of the Leased Premises
pursuant to clause (ii)(A) or (ii)(B) above, Landlord shall have the right to
relet any of the Leased Premises to such tenant or tenants, for such term or
terms, for such rent, on such conditions and for such uses as Landlord in its
sole discretion may determine, and collect and receive any rents payable by
reason of such reletting. Landlord may make such Alterations in connection with
such reletting as it may deem advisable in its sole discretion. Notwithstanding
any such reletting, Landlord may collect the damages set forth in Paragraph
23(b)(ii). Landlord shall consider, in its good faith business judgment, any
reputable tenants or subtenants proposed by Tenant that have a financial
condition commensurate with the financial obligations that would be imposed by
the proposed lease or sublease and are prepared to lease or sublet the Leased
Premises, but Landlord shall be under no obligation to accept such proposed
tenants or subtenants and this provision shall not alter the provisions of
Paragraph 23(d) below or impose any additional obligations on Landlord.
(E) Landlord may declare by notice to Tenant the entire
Basic Rent (in the amount of Basic Rent then in effect plus the agreed and
reasonable assumed increases of 2.25% on each Basic Rent Adjustment Date for the
remainder of the then current Term to be immediately due and payable. Tenant
shall immediately pay to Landlord all such Basic Rent discounted to its Present
Value, all accrued Rent then due and unpaid, all other Monetary Obligations
which are then due and unpaid and all Monetary Obligations which arise or become
due by reason of such Event of Default (including any Costs of Landlord). Upon
receipt by Landlord of all such accelerated Basic Rent and Monetary Obligations,
this Lease shall remain in full force and effect and Tenant shall have the right
to possession of the Leased Premises from the date of such receipt by Landlord
to the end of the Term, and subject to all the provisions of this Lease,
including the obligation to pay all increases in Basic Rent and all
47
Monetary Obligations that subsequently become due, except that (A) no Basic Rent
which has been prepaid hereunder shall be due thereafter during the said Term,
and (B) Tenant shall have no option to extend or renew the Term.
(b) The following constitute damages to which Landlord shall be
entitled (if and to the extent permitted by applicable Law) if Landlord
exercises its remedies under Paragraph 23(a)(i), or Paragraph 23(a)(ii) clauses
(A), (B), (C) or (D), as the case may be:
(i) If Landlord exercises its remedies under the Landlord
Mortgage under Paragraph 23(a)(i) then, upon written demand from Landlord,
Tenant shall pay to Landlord, as liquidated and agreed final damages for
Tenant's default and in lieu of all current damages beyond the date of such
demand (it being agreed that it would be impracticable or extremely difficult to
fix the actual damages), an amount equal to the sum of (x) the applicable
Default Termination Yield, plus (y) the Acquisition Fee, plus (z) any Prepayment
Premium required to be made by Landlord to a Lender under a Note or any other
document evidencing or securing a Loan (other than payments of principal and/or
interest which Landlord is required to make under a Note or a Mortgage) by
reason of the prepayment or defeasance of the applicable Loan. Tenant shall also
pay to Landlord all accrued Rent then due and unpaid, all other Monetary
Obligations which are then due and unpaid, all Monetary Obligations which arise
or become due by reason of such Event of Default, including all Costs of
Landlord in connection therewith;
(ii) If Landlord exercises its remedy under Paragraphs
23(a)(ii) clauses (A), (B) or (C), or (D) (if Landlord attempts to exercise such
remedy and is unsuccessful in reletting the Leased Premises), but not its remedy
under Paragraph 23(a)(ii) clause (E), then, upon written demand from Landlord,
Tenant shall pay to Landlord, as liquidated and agreed final damages for
Tenant's default and in lieu of all current damages beyond the date of such
demand (it being agreed that it would be impracticable or extremely difficult to
fix the actual damages), an amount equal to the Present Value of the excess, if
any, of (A) all Basic Rent from the date of such demand to the date on which the
Term is scheduled to expire hereunder in the absence of any earlier termination,
re-entry or repossession over (B) the then fair market rental value of the
Leased Premises for the same period as determined by an arbitrator meeting the
qualifications set forth in clause (v) of Paragraph 29(a) hereof selected by
Landlord and employed at Tenant's expense. Tenant shall also pay to Landlord all
accrued Rent then due and unpaid, all other Monetary Obligations which are then
due and unpaid, all Monetary Obligations which arise or become due by reason of
such Event of Default, including any Costs of Landlord in connection with the
repossession of the Leased Premises and any attempted reletting thereof,
including all brokerage commissions, legal expenses, reasonable attorneys' fees,
employees' expenses, costs of Alterations and expenses and preparation for
reletting.
(iii) If Landlord exercises its remedy or remedies under
Paragraphs 23(a)(ii), then Tenant shall, until the end of what would have been
the Term in the absence of the termination of the Lease, and whether or not any
of the Leased Premises shall have been relet, be liable to Landlord for, and
shall pay to Landlord, as liquidated and agreed current damages all Monetary
Obligations which would be payable under this Lease by Tenant in the absence of
such termination (and which may be computed and due and payable in monthly
installments on each Basic Rent Payment Date) less the net proceeds, if any, of
any reletting
48
pursuant to Paragraph 23(a)(ii) clause (D), after deducting from such proceeds
all of the Costs of Landlord (including the items listed in the last sentence of
Paragraph 23(b)(ii) above) incurred in connection with such repossessing and
reletting; provided, that if Landlord has not relet the Leased Premises, such
Costs of Landlord shall be considered to be Monetary Obligations payable by
Tenant. Tenant shall be and remain liable for all sums aforesaid, and Landlord
may recover such damages from Tenant and institute and maintain successive
actions or legal proceedings against Tenant for the recovery of such damages.
Nothing herein contained shall be deemed to require Landlord to wait to begin
such action or other legal proceedings until the date when the Term would have
expired by its own terms had there been no such Event of Default.
(iv) Subject to the provisions of Paragraph 23(a) above and
this Paragraph 23(b), Landlord may recover all damages to which it is entitled
herein from Tenant and institute and maintain successive actions or legal
proceedings (summary or otherwise) against Tenant for the recovery of such
damages. Nothing herein contained shall be deemed to require Landlord to wait to
begin such action or other legal proceedings until the date when the Term would
have expired by its own terms had there been no such Event of Default.
(c) Notwithstanding anything to the contrary herein contained
(but subject to the provisions of Paragraph 23(a)(i) and Paragraph 23 (b)(i)),
in lieu of or in addition to any of the foregoing remedies and damages, Landlord
may institute any proceedings, summary or otherwise and exercise any remedies
and collect any damages available to it at law or in equity under the applicable
Laws of the State. If Landlord is unable to obtain full satisfaction pursuant to
the exercise of any remedy, it may pursue any other remedy which it has
hereunder or at law or in equity.
(d) Unless and only to the extent required to by applicable Law,
Landlord shall not be required to mitigate any of its damages hereunder. If any
Law shall validly limit the amount of any damages provided for herein to an
amount which is less than the amount agreed to herein, Landlord shall be
entitled to the maximum amount available under such Law. If Landlord commences
any summary proceeding hereunder Tenant agrees that it shall not interpose any
counterclaim of whatever nature or description in any such proceeding (except
for any compulsory counterclaim).
(e) No termination of this Lease, repossession or reletting of
the Leased Premises, exercise of any remedy or collection of any damages
pursuant to this Paragraph 23 shall relieve Tenant of any Surviving Obligations.
(f) WITH RESPECT TO ANY REMEDY OR PROCEEDING OF LANDLORD OR
TENANT HEREUNDER, TENANT AND LANDLORD HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY,
PROVIDED, HOWEVER, THAT NEITHER LANDLORD NOR TENANT WAIVES ITS RIGHT TO A TRIAL
BY JURY WITH RESPECT TO ANY ACTION, PROCEEDING OR COUNTER-CLAIM BROUGHT BY
EITHER TENANT OR LANDLORD AGAINST THE OTHER IN ANY ACTION FOR PERSONAL INJURY OR
PROPERTY DAMAGE.
(g) Upon the occurrence of any Event of Default, Landlord shall
have the right (but no obligation) to perform any act required of Tenant
hereunder and, if performance
49
of such act requires that Landlord enter the Leased Premises, Landlord may enter
the Leased Premises for such purpose.
(h) Intentionally Omitted.
(i) Tenant hereby waives and surrenders, for itself and all those
claiming under it, including creditors of all kinds, (i) any right and privilege
which it or any of them may have under any present or future Law to redeem any
of the Leased Premises or to have a continuance of this Lease after termination
of this Lease or of Tenant's right of occupancy or possession pursuant to any
court order or any provision hereof, (ii) to the fullest extent, if any,
permitted by applicable Law, the right to any automatic stay in U. S Bankruptcy
Court or similar State insolvency proceeding with respect to the exercise by
Landlord of its remedies as a mortgagee under Paragraph 23(a)(i) whether through
judicial foreclosure or power of sale, and (iii) the benefits of any present or
future Law which exempts property from liability for debt or for distress for
rent.
(j) Except as otherwise provided herein, all remedies are
cumulative and concurrent and no remedy is exclusive of any other remedy. Each
remedy may be exercised at any time an Event of Default has occurred and is
continuing and may be exercised from time to time. No remedy shall be exhausted
by any exercise thereof.
24. Notices. All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications required or permitted
to be given pursuant to the provisions of this Lease shall be in writing and
shall be deemed to have been given and received for all purposes when delivered
in person or by Federal Express or other reliable nationally recognized 24-hour
delivery service or five (5) business days after being deposited in the United
States mail, by registered or certified mail, return receipt requested, postage
prepaid, addressed to the other party as follows: Notices sent to Landlord shall
be sent c/o W. P. Xxxxx & Co. LLC, 00 Xxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, to the attention of Director, Asset Management, and notices to
Tenant shall be c/o The New York Times Company, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 to the attention of General Counsel and Chief Financial Officer (in
separate envelopes) and shall simultaneously be given by Landlord to DLA Piper
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 Attention: Xxxxxx X.
Xxxxxxx, Esq. A copy of any notice given by Tenant to Landlord shall
simultaneously be given by Tenant to Xxxx Xxxxx LLP, 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Chairman, Real Estate Department.
For the purposes of this Paragraph, any party may substitute another address
stated above (or substituted by a previous notice) for its address by giving
fifteen (15) days' notice of the new address to the other party, in the manner
provided above. Tenant covenants and agrees to promptly deliver to Landlord a
copy of any written notice or demand (i) received by Tenant alleging any default
or potential default by Tenant under any of the Governing Documents or (ii)
given by Tenant to any other Person alleging any default or potential default by
such Person under any of the Governing Documents. Tenant shall provide copies of
any written notice claiming a default by Tenant under (i) any of the Governing
Documents, and (ii) any other agreement with governmental or quasi- governmental
authority with respect to the Condominium or the Leased Premises within three
(3) business days of receipt thereof by Tenant unless Landlord is a party
entitled to direct notice under the term of such document.
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25. Estoppel Certificate. At any time upon not less than fifteen (15)
days' prior written request by either Landlord or Tenant (the "Requesting
Party") to the other party (the "Responding Party"), the Responding Party shall
deliver to the Requesting Party a statement in writing, executed by an
authorized officer of the Responding Party, certifying (a) that, except as
otherwise specified, this Lease is unmodified and in full force and effect, (b)
the dates to which Basic Rent, Additional Rent and all other Monetary
Obligations have been paid, (c) that, to the knowledge of the signer of such
certificate and except as otherwise specified, no default by either Landlord or
Tenant exists hereunder, (d) such other matters directly related to this Lease
as the Requesting Party may reasonably request, and (e) if Tenant is the
Responding Party that, except as otherwise specified, there are no proceedings
pending against Tenant before or by any court or administrative agency which, if
adversely decided, would materially and adversely affect the financial condition
and operations of Tenant. Any such statements by the Responding Party may be
relied upon by the Requesting Party, any Person whom the Requesting Party
notifies the Responding Party in its request for the Certificate is an intended
recipient or beneficiary of the Certificate, any Lender or their assignees and
by any prospective purchaser or mortgagee of any of the Leased Premises. Any
certificate required under this Paragraph 25 and delivered by Tenant shall
provide that the person signing same is duly authorized to do so, is familiar
with the Leased Premises and this Lease, and has made such reasonable
examination or investigation as is necessary to enable him to express an
informed opinion as to the subject matter of such certificate.
26. Surrender. Upon the expiration or earlier termination of this
Lease, Tenant shall peaceably leave and surrender the Leased Premises to
Landlord in the same condition in which the Leased Premises was at the
commencement of this Lease, except as repaired, rebuilt, restored, altered,
replaced or added to as permitted or required by any provision of this Lease,
ordinary wear and tear excepted. Upon such surrender, Tenant shall (a) remove
from the Leased Premises all of Tenant's Personal Property and any other
personalty which is owned by third parties other than Landlord and all
Alterations required to be removed pursuant to Paragraph 13 hereof and (b)
repair any damage caused by such removal. Property not so removed shall become
the property of Landlord, and Landlord may thereafter cause such property to be
removed from the Leased Premises. The cost of removing and disposing of such
property and repairing any damage to any of the Leased Premises caused by such
removal shall be paid by Tenant to Landlord upon demand. Landlord shall not in
any manner or to any extent be obligated to reimburse Tenant for any such
property which becomes the property of Landlord pursuant to this Paragraph 26.
27. No Merger of Title. There shall be no merger of the leasehold
estate created by this Lease with the fee estate in any of the Leased Premises
by reason of the fact that the same Person may acquire or hold or own, directly
or indirectly, (a) the leasehold estate created hereby or any part thereof or
interest therein and (b) the fee estate in any of the Leased Premises or any
part thereof or interest therein, unless and until all Persons having any
interest in the interests described in (a) and (b) above which are sought to be
merged shall join in a written instrument effecting such merger and shall duly
record the same.
28. Books and Records.
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(a) Tenant shall keep adequate records and books of account with
respect to the operation, subleasing, maintenance and repair of the Leased
Premises, in accordance with sound real estate practices and principles,
consistently applied, and shall permit Landlord and Lender by their respective
agents, accountants and attorneys, upon reasonable notice to Tenant, to visit
and inspect the Leased Premises and examine (and make copies of) the records and
books of account with respect to the Leased Premises and to discuss the finances
and business of Tenant with the officers of Tenant, upon reasonable prior notice
and at such reasonable times as may be requested by Landlord. Upon the request
of Lender or Landlord (either telephonically or in writing), Tenant shall
provide the requesting party with copies of any specific and reasonably
identified information to which such party would be entitled in the course of a
personal visit pursuant to the provisions of this Paragraph 28(a).
(b) So long as Tenant is a wholly-owned subsidiary of Guarantor,
Tenant shall cause to be delivered to Landlord and to Lender within seventy-five
(75) days of the close of each fiscal year of Guarantor, annual audited
financial statements of the Tenant Group certified by a nationally recognized
firm of independent certified public accountants. If, at any time during the
Term Tenant is not a wholly-owned subsidiary of Guarantor, Tenant shall (i)
deliver to Landlord and Lender within seventy-five (75) days of the close of
each fiscal year of Tenant annual audited financial statements of Tenant
certified by a nationally recognized firm of independent certified public
accountants, (ii) also furnish to Landlord within thirty (30) days after the end
of each of the three remaining quarters unaudited financial statements and all
other quarterly reports of Tenant and the Tenant Group, certified by Tenant's
chief financial officer, and all filings, if any, of Form 10-K, Form 10-Q and
other required filings with the Securities and Exchange Commission pursuant to
the provisions of the Securities Exchange Act of 1934, as amended, or any other
Law. All financial statements shall be prepared in accordance with GAAP
consistently applied. All annual financial statements shall be accompanied (i)
by an opinion of said accounting firm stating that (A) there are no
qualifications as to the scope of the audit and (B) the audit was performed in
accordance with GAAP and (ii) by the affidavit of the president or a vice
president of Tenant, dated within five (5) days of the delivery of such
statement, stating that (C) the affiant knows of no Event of Default, or event
which, upon notice or the passage of time or both, would become an Event of
Default which has occurred and is continuing hereunder or, if any such event has
occurred and is continuing, specifying the nature and period of existence
thereof and what action Tenant has taken or proposes to take with respect
thereto and (D) except as otherwise specified in such affidavit, that Tenant has
fulfilled all of its obligations under this Lease which are required to be
fulfilled on or prior to the date of such affidavit. Notwithstanding any of the
foregoing to the contrary, so long as the Guarantor of this Lease is a public
company and the consolidated quarterly and annual financials of Guarantor (which
must include Tenant as a part of the Tenant Group) which Tenant would be
otherwise required to cause to be delivered hereinabove are available to
Landlord via XXXXX or other online service at no material cost to Landlord, then
Landlord agrees that it shall obtain such quarterly and annual financials
through such service and neither Tenant nor Guarantor shall be required to make
the physical deliveries required hereinabove. In the event that Landlord (or any
direct or indirect parent company) is required to disclose Tenant's or
Guarantor's financial statements, as the case may be (in whole or in summary
form), in order to comply with its public filing and disclosure requirements
under the rules or regulations promulgated by the Securities & Exchange
Commission ("SEC"), then Tenant or Guarantor, as the case may be, shall cause
the certified public accountants that audited its financial statements to
provide Landlord with written
52
consent to allow such auditor's report to be disclosed and/or incorporated by
reference into Landlord's or its ultimate parent company's SEC filings.
29. Determination of Value.
(a) Whenever a determination of FMRV is required pursuant to any
provision of this Lease, same shall be determined in accordance with the
following procedure:
(i) Landlord and Tenant shall endeavor to agree upon the
FMRV not later than six (6) months prior to the Expiration Date of the current
Term and in any event shall commence such process not later than sixty (60) days
after the date (the "Applicable Initial Date") on which Tenant provides Landlord
with notice of its intention to extend the Term of this Lease, in whole or in
part, pursuant to Paragraph 5(b) hereof, and upon reaching such agreement, the
parties shall execute an agreement setting forth the amount of such FMRV.
(ii) If the parties shall not have signed such agreement
within sixty (60) days after the Applicable Initial Date, Tenant shall within
thirty (30) days after the Applicable Initial Date select an arbitrator and
notify Landlord in writing of the name, address and qualifications of such
arbitrator. Within twenty (20) days following Landlord's receipt of Tenant's
notice of the arbitrator selected by Tenant, Landlord shall select an arbitrator
and notify Tenant of the name, address and qualifications of such arbitrator.
Such two arbitrators shall endeavor to agree upon FMRV based on a written
determination made by each of them (and given to Landlord by Tenant). If such
two arbitrators shall agree upon a FMRV, the amount of such FMRV as so agreed
shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two arbitrators shall be unable to agree upon
a FMRV within thirty (30) days after the selection of an arbitrator by Landlord,
then such arbitrators shall advise Landlord and Tenant of their respective
determination of FMRV and thereafter shall select a third arbitrator to make the
determination of FMRV and shall provide such third arbitrator with written
notice of their respective determinations of FMRV. In making such determination,
the third arbitrator's only option shall be to select either the FMRV as
determined by Tenant's arbitrator or the FMRV as determined by Landlord's
arbitrator which such third arbitrator determines to be closest to his
determination of FMRV for the Leased Premises or portion thereof that is the
subject of the applicable Renewal Term, without modification, and, thereafter,
to notify Landlord and Tenant of such arbitrator's selection. The selection of
the third arbitrator and the determination of FMRV by such third arbitrator
shall be binding and conclusive upon Landlord and Tenant, and either party may
seek to enter such third arbitrator's determination of FMRV as a judgment in the
Supreme Court, New York County.
(iv) If such two arbitrators shall be unable to agree upon
the designation of a third arbitrator within twenty (20) days after the
expiration of the thirty (30) day period referred to in clause (iii) above, or
if such third arbitrator does not make a determination of FMRV within forty-five
(45) days after his selection, then such third arbitrator or a substituted third
arbitrator, as applicable, shall, at the request of either party hereto, be
appointed by the President or Chairman of the Real Estate Board of New York. The
determination of FMRV made by the third arbitrator appointed pursuant hereto
shall be made within forty-five (45) days after such appointment.
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(v) Each arbitrator selected or appointed pursuant to this
Paragraph 29(a) shall (A) have no right, power or authority to alter or modify
the provisions of this Lease, (B) utilize the definition of FMRV set forth
above, and (C) be at least a managing director, vice president or principal of a
nationally or regionally recognized real estate brokerage firm and have not less
than ten (10) years experience in Manhattan as a licensed broker or appraiser
with substantial experience with respect to the leasing of significant blocks of
space in "class A" high-rise office buildings in Manhattan similar to the
Building, and (E) be currently registered or licensed as a real estate broker in
the New York State.
(vi) The Cost of the procedure described in this Paragraph
29(a) above shall be paid as follows: Each party shall pay its own costs related
to its arbitrator and determination of FMRV and the costs of the third
arbitrator shall be shared on a 50/50 basis by Landlord and Tenant.
(b) If, by virtue of any delay, FMRV is not determined by the
expiration or termination of the then current Term, then until FMRV is
determined, Tenant shall continue to pay Basic Rent during the succeeding
Renewal Term in the same amount which it was obligated under this Lease to pay
prior to the commencement of the Renewal Term. When FMRV is determined, the
appropriate Basic Rent shall be calculated retroactive to the commencement of
the Renewal Term and Tenant shall either receive a refund from Landlord (in the
case of an overpayment) or shall pay any deficiency to Landlord (in the case of
an underpayment).
(c) In determining FMRV, the arbitrators shall determine the
amount that a willing tenant would pay, and a willing landlord of a comparable
building located in midtown Manhattan would accept, at arm's length, to rent
first class office space of comparable size and quality as the Improvements,
taking into account all relevant factors. The arbitrators shall further assume
that no default then exists under the Lease, that Tenant has complied (and will
comply) with all provisions of the Lease, and that no Event of Default exists
under the Guaranty.
30. Non-Recourse as to Landlord. (a) Anything contained herein to the
contrary notwithstanding, any claim based on or in respect of any liability of
Landlord under this Lease shall be limited to actual damages and shall be
enforced only against the Leased Premises and not against any other assets,
properties or funds of (i) Landlord, (ii) any director, officer, member, general
partner, shareholder, limited partner, beneficiary, employee or agent of
Landlord or any members or general partners of Landlord (or any legal
representative, heir, estate, successor or assign of any thereof), (iii) any
predecessor or successor partnership or corporation (or other entity) of
Landlord or any of its general partners, shareholders, officers, directors,
members, employees or agents, either directly or through Landlord or its general
partners, shareholders, officers, directors, employees or agents or any
predecessor or successor partnership or corporation (or other entity), or (iv)
any Person affiliated with any of the foregoing, or any director, officer,
employee or agent of any thereof.
(b) Notwithstanding the foregoing, Tenant shall not be precluded
from instituting legal proceedings for the purpose of making a claim against
Landlord on account of
54
an alleged violation of Landlord's obligations under this Lease or any tortuous
conduct or act of Landlord or any employees or agent of Landlord, subject,
however, to Paragraph 30(a) above.
31. Financing.
(a) Tenant agrees to pay, not later than five (5) business days
following written request from Landlord (or upon the date of this Lease with
respect to costs and expenses incurred as of such date): (i) all costs and
expenses incurred by Landlord in connection with the initial purchase and
leasing of the Leased Premises, including, without limitation, transfer taxes,
mortgage recording taxes, PILOMRT and recording fees and charges, the cost of
appraisals, environmental reports, property condition report and zoning reports;
UCC and related searches; owner's title insurance charges and premiums
(including endorsements), the cost of surveys; the costs of any updates to any
of the foregoing or any reliance letters required in connection therewith; and
the fees and expenses of Landlord's counsel, and (ii) all costs and expenses
incurred by Landlord in connection with the financing of the initial Loan,
whether such initial Loan occurs concurrently with or subsequent to the
consummation of this Lease (but not any extensions, modifications, or
refinancing thereof), including without limitation, any "points", application
charges, commitment fees, costs of updates or additions to searches or any of
the reports identified under clause (i) hereof or any reliance letters required
in connection therewith, Lender's title charges and premiums (including
endorsements), and the fees and expenses of Lender's counsel; provided that
notwithstanding anything to the contrary contained herein, Tenant shall not be
responsible for the payment of any costs and expenses incurred by Landlord in
connection with the financing of such initial Loan in excess, in the aggregate,
of $3,500,000 (excluding any PILOMRT or mortgage recording tax payable by Tenant
in accordance with the provision of this Lease); and, provided further, that
Landlord agrees that it shall use good faith and commercially reasonable efforts
to negotiate then current market or customary "points" and fees in connection
with such initial Loan consistent with other mortgages held by institutional
lenders for similar properties and incur commercially reasonable costs and
expenses in connection with such initial Loan transaction. Notwithstanding
anything to the contrary contained herein, if any Lender shall refuse to accept
an assignment of the WPC II Mortgage in connection with the making of the
initial Loan, then the amount of any mortgage recording tax or PILOMRT due in
connection with the recording of such Lender's Mortgage shall be split equally
between Landlord and Tenant up to the amount of such tax payable for a mortgage
loan of $155,000,000 (with Tenant's portion thereof payable as Additional Rent
hereunder) and any incremental additional amount of such tax due on any portion
of such loan amount above $155,000,000 shall be payable by Landlord.
(b) In connection with any Loan, (i) Landlord shall not incur
principal indebtedness thereunder in excess of $225,000,000 at any time prior to
the Option Lapse Date (ii) in no event shall the monthly payment of principal
and interest due in connection with such Loan, in the aggregate, exceed the
Basic Rent then payable under this Lease with respect to such month, (iii)
Landlord shall promptly notify Tenant in writing of the prepayment timeframes
and terms of any Mortgage entered into by Landlord, (iv) Landlord shall not
enter into any Mortgage on the Leased Premises that has a lock-out period
precluding prepayment or defeasance during the entirety of the Option Window,
(v) if Landlord enters into a Loan on the Leased Premises that does not allow
Tenant an opportunity to prepay the Loan at par during the Option Window, then
Landlord shall be responsible for the applicable Prepayment Premium if Tenant
exercises its
55
Purchase Option during such Option Window, and (vi) Landlord agrees that it
shall use good faith and commercially reasonable efforts to negotiate then
current "market" or customary prepayment premiums in connection with any such
Loan, taking into account the credit and financial standing of Tenant and
Guarantor at the time Loan is made, current market circumstances and the type
and amounts of prepayment premiums or penalties which are generally being
required in connection with mortgages held by institutional lenders for similar
properties (or similar leasehold interests therein), similarly situated
(including, without limitation, mortgages anticipated to be subject to a
securitization); specifically, Landlord will use good faith and commercially
reasonable efforts (but without legal obligation) to obtain from the applicable
Lender (x) the ability to prepay the Loan "at par" (i.e., without prepayment
premiums or penalties or defeasance costs) in connection with a termination of
the Lease and purchase of the Leased Premises pursuant to a rejectable offer
made by Tenant under Paragraph 18 hereof, and (y) as long of an "at par"
prepayment period immediately prior to maturity of the Loan as then current
markets permit without adversely altering the economics of the Loan (z) the
ability to extend the Loan an additional six (6) months in the event that a
widespread capital markets disruption not related to the Tenant or Guarantor's
credit makes an earlier payoff and refinancing problematic (provided that such
extension period does not result in any changes in the Loan economics that is
adverse to Landlord (including interest rate or amortization schedule changes).
Tenant shall not be responsible for any transaction costs or fees incurred by
Landlord in connection with any refinancing of the initial Loan.
(c) Tenant agrees to pay, within three (3) business days of
written demand therefor, any cost, charge or expense (other than the principal
of the Note and interest thereon at the contract rate of interest specified
therein) imposed upon Landlord by Lender pursuant to the Note, the Mortgage or
the Assignment which is caused by or results from any Event of Default by Tenant
under any provision of this Lease.
(d) If Landlord desires to obtain or refinance any Loan
(including by an assignment of the WPC II Mortgage), Tenant agrees (i) to
reasonably cooperate and negotiate in good faith with Landlord and the
applicable Lender concerning any request made by such Lender or proposed Lender
for changes or modifications in this Lease, including, without limitation,
supplying any such Lender with such notices and information as Tenant is
required to give to Landlord hereunder and to extend the rights of Landlord
hereunder to any such Lender and to consent to such financing if such consent is
requested by such Lender and (ii) to join onto the applicable Mortgage as a
signatory thereto (the "Joinder") for the purposes of making Tenant's beneficial
estate in the Leased Premises subject to such Mortgage and the rights and
remedies of Lender thereunder; provided that: (A) such Lender provides Tenant
with an SNDA consistent with the provisions of Paragraph 32(a) below, (B) Tenant
shall have no obligation to pay or perform any obligation of Landlord under the
Mortgage, but shall be provided with notice and cure provisions customarily
granted to a ground lessor that subjects its fee to the lien of a mortgage in
connection with a leasehold financing, and (C) to the extent Tenant elects to
pay any monthly debt service or incurs any other expense in order to cure a
default by Landlord under such Mortgage that was not the result of a default by
Tenant under this Lease then Tenant shall be entitled to a credit against the
next monthly installment of Basic Rent due hereunder equal to the amount so paid
or expended, (D) if such Loan is accelerated and Tenant elects to satisfy such
Loan in full in order to cure a default by Landlord under such Mortgage that was
not the result of a default by Tenant under this Lease, then Tenant shall be
entitled to reduction in the amount of
56
the Option Price equal to the amount so paid or expended to satisfy such loan in
full equal to the amount so paid or expended; and Landlord hereby acknowledges
and agrees to such rights and remedies of Tenant hereinabove described and
agrees to same, whether or not Landlord is a party to any such SNDA or other
document between Tenant and Lender setting forth such rights. Further, Tenant
shall execute such other documents, certificates, or agreements as such Lender
reasonably requires in connection with such financing, including an SNDA
consistent with the provisions of this Paragraph 31(d) and Paragraph 32(a)
below. Notwithstanding the foregoing Tenant shall not be required to any enter
into any such document, instrument or agreement, other than the Joinder or the
SNDA, if same decreases any right, benefit or privilege of Tenant under this
Lease or increase Tenant's obligations under this Lease, beyond a de minimis
extent.
32. Subordination, Non-Disturbance and Attornment; Landlord's Waiver.
(a) This Lease and Tenant's interest hereunder shall be
subordinate to any Mortgage (other than the Landlord Mortgage) hereafter placed
upon the Leased Premises, and to any and all advances made or to be made
thereunder, to the interest thereon, and all renewals, replacements and
extensions thereof, provided that, with respect to any such Mortgage, a separate
SNDA in recordable form shall be duly executed by the holder of any such
Mortgage and delivered to Tenant, which SNDA shall (i) provide for the
recognition of all of the provisions this Lease and all Tenant's rights and
benefits hereunder (including, without limitation, the Purchase Option and the
right of first refusal in accordance with the terms and conditions of this
Lease) unless and until an Event of Default exists or Landlord shall have the
right to terminate this Lease pursuant to any applicable provision hereof or
applicable Laws and (ii) shall provide Tenant with the rights set forth in
clauses (B), (C), and (D)of Paragraph 31(d)(ii)above. Subject to the foregoing,
such SNDA shall be in the applicable Lender's then customary form subject to
reasonable changes consistent with then current market terms and practices then
generally followed by institutional lenders and otherwise reasonably
satisfactory to Lender and Tenant.
(b) Landlord agrees that, upon the request of any Person that
shall be Tenant's senior secured lender, subordinate senior lender, purchase
money equipment lender or an equipment lessor of Tenant, Landlord shall execute
and deliver a commercially reasonable waiver of Landlord's statutory lien
rights, if any, and a consent and agreement with respect to the respective
rights of Landlord and such Person regarding the security interests in, and the
timing and removal of, any inventory, equipment or other collateral in which
such Person has a secured interest (the "Collateral"), in form and substance
reasonably acceptable to Landlord, so long as such waiver and agreement (i)
provides for the indemnification of Landlord against any claims by Tenant or any
Person claiming through Tenant and against any physical damage caused to the
Leased Premises, in connection with the removal of any of the Collateral by such
Person, (ii) expressly excludes any claim by such Person to any right, title or
interest in or to any of the Equipment as defined in this Lease, (iii) provides
for a reasonable, but limited, timeframe for the removal of such Collateral by
such Person after the expiration of which same shall be deemed abandoned, and
(iv) provides for the per diem payment of Basic Rent due hereunder by such
Person for each day following the date of the expiration or termination of this
Lease thereafter that Landlord permits such Person's Collateral to remain in the
Leased Premises.
57
33. Tax Treatment; Reporting. (a) Notwithstanding any other provision
of this Lease, the parties hereto hereby agree that it is the intent of the
parties to create, and this Lease shall be treated as, a financing Lease in
accordance with the terms of this Paragraph 33 from the Commencement Date up to
the Option Lapse Date and thereafter as a true lease in accordance with the
terms of this Paragraph 33. Landlord and Tenant acknowledge and agree that
commencing as of the Commencement Date of this Lease and continuing until the
Option Lapse Date each of Landlord and Tenant shall treat the transactions
pursuant to the PSA, together with the transactions pursuant to this Lease and
the Security Documents, for all accounting and federal, state and local tax
purposes (including, without limitation, income taxes) as a loan by Landlord to
Tenant in the amount of the Acquisition Cost, and not as a sale and leaseback of
the Leased Premises. Consistent with the immediately preceding sentence,
Landlord and Tenant acknowledge and agree that for all accounting and federal,
state and local tax purposes (a) Tenant shall be treated as the beneficial owner
of the Leased Premises and the Equipment (subject to Landlord's secured interest
therein), and eligible to claim depreciation and amortization deductions with
respect to the Leased Premises under Section 167 or 168 of the Internal Revenue
Code of 1986, as amended (the "Code"); (b) the Basic Rent and any Supplemental
Rent shall be treated as interest expense of Tenant and interest income of
Landlord, (c) Landlord and Tenant shall treat the Option Price, if paid, as (i)
a repayment of loan principal up to the amount of the Acquisition Cost and (ii)
interest expense of Tenant and interest income of Landlord to the extent the
Option Price exceeds the Acquisition Cost and such interest income and interest
expense shall be accrued as original issue discount and included in income by
the Landlord and as an expense by the Tenant in accordance with Code Sections
1272 et seq; and Tenant agrees to prepare the applicable Form 1099-OID reports
in accordance with such OID Schedule. Landlord and Tenant agree that (x) as soon
as practicable after the execution and delivery of this Lease, they shall use
commercially reasonable efforts and reasonably cooperate to create and agree
upon a schedule (the "OID Schedule")that will set forth in detail the amounts of
accrued interest income and expense arising from the original issue discount
described in the immediately preceding sentence, and (y) in the event of any
dispute between the Landlord and Tenant with respect to the calculation of the
amounts to be set forth in the schedule as described in clause (x) above, then
an independent accounting firm engaged by the Tenant shall settle such dispute
and determine such amounts and such determination of such firm shall be final
and binding upon Landlord and Tenant. For the period up to the Option Lapse Date
Landlord and Tenant agree to prepare all financial statements and file all
federal, state and local income tax returns and reports in a manner consistent
with the provisions of this Paragraph 33(a) and shall not take any position
inconsistent with the provisions of this Paragraph 33(a) with any income tax or
other governmental authority; provided that, nothing in this Lease shall be
deemed to constitute a guaranty, warranty or representation by either Landlord
or Tenant as to the proper treatment of the transactions under the PSA or this
Lease for any income tax purpose or any other purpose.
(b) From and after the Option Lapse Date, (i) the financing lease
treatment of this Lease as described in Paragraph 33(a) above shall be of no
further force or effect and Landlord and Tenant each expressly acknowledge and
agree that effective as of the Option Lapse Date each shall treat this
transaction as a true lease for all accounting and federal, state and local
income tax purposes (and shall report this transaction as a lease for Federal
income tax purposes) and (ii) for federal income tax purposes each shall report
this Lease as a true lease with Landlord as the owner of the Leased Premises and
Equipment and Tenant as the
58
lessee of such Leased Premises and Equipment including: (1) treating Landlord as
the owner of the property eligible to claim depreciation deductions with respect
to the Leased Premises and Equipment under the Code, (2) Tenant reporting its
Rent payments as rent expense under Section 162 of the Code, and (3) Landlord
reporting the Rent payments as rental income; provided that, nothing in this
Lease shall be deemed to constitute a guaranty, warranty or representation by
either Landlord or Tenant as to the proper treatment of this transaction for
state law purposes and for federal income tax purposes.
(c) If at any time this Lease is determined to be or is
recharacterized as a true lease, irrespective of the intent of the parties
hereto, by any State or local taxing authority, then to the extent any real
property transfer taxes are determined by such authorities to be due, then all
such transfer taxes, together with any interest and penalties thereon, shall be
paid by Tenant, and if same are not timely paid, Landlord may pay same and
Tenant shall reimburse Landlord for such amount, together with interest thereon
at the Default Rate from the date paid by Landlord until repaid by Tenant, as
Additional Rent hereunder
(d) As more fully described in Xxxxxxxxx 00(x), Xxxxxxxx and
Tenant acknowledge that until the Option Lapse Date the transactions under the
PSA and the transactions under this Lease shall be treated for income tax
purposes as a deemed loan (the "Deemed Loan") in the amount of the Acquisition
Cost and that the Basic Rent, the Supplemental Rent, if any, and the excess of
the Option Price over the Acquisition Cost shall be treated as interest on the
Deemed Loan for income tax purposes (and such interest income and interest
expense attributable to the excess of the Option Price over the Acquisition Cost
shall be accrued as original issue discount and included in income by the
Landlord and as an expense by the Tenant in accordance with the OID Schedule).
Landlord and Tenant intend that the Deemed Loan shall not be subject to the
limits (the "AHYDO Limits") on (including deferral of) the deduction of original
issue discount set forth in Section 163(e)(5) of the Code, or any successor
provision of similar effect. In addition to all other amounts payable by Tenant
under this Lease, on each Basic Rent Payment Date Tenant shall pay a
supplemental rent ("Supplemental Rent") to Landlord in the minimum amount
necessary to prevent the Deemed Loan from being subject to the AHYDO Limits.
Each such minimum amount of Supplemental Rent shall be determined by Tenant in
accordance with the Section 163(i) of the Code, as in effect from time to time,
and all authoritative interpretations thereof, including but not limited to any
final, temporary and proposed Treasury Regulations, Revenue Rulings, Revenue
Procedures and relevant court opinions. If Tenant determines that Tenant is
required to pay Supplemental Rent (or to modify the amount or timing of any
Supplemental Rent otherwise payable), Tenant shall deliver written notice of
such determination to Landlord not fewer than thirty (30) days before the first
Basic Rent Payment Date on which such Supplemental Rent is payable (or to which
such modification applies), together with a schedule of the amount of
Supplemental Rent required to be paid on such Basic Rent Payment Date and each
Basic Rent Payment Date thereafter. If Tenant pays any Supplemental Rent, the
Option Price shall be reduced by an amount equal to the sum of the amounts of
all payments of Supplemental Rent, provided and upon condition that in no event
that the Option Price be reduced below $225,000,000.
34. Option to Purchase.
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(a) Landlord does hereby give and grant to Tenant the option (the
"Purchase Option") to re-acquire all right, title and interest in and to the
Leased Premises free of the lien of the Landlord Mortgage (i) for a purchase
price (the "Purchase Price") equal to the Option Price and (ii) exercisable on a
date (the "Purchase Date ") selected by Tenant that is not later than six (6)
months prior to the maturity date of the Loan then encumbering the Leased
Premises (as same may be extended as described in Paragraph 31(b) hereof, the
"Loan Maturity Date"), provided that such Loan Maturity Date must occur sometime
within a period commencing not later than three (3) months prior to the 10th
anniversary of the Commencement Date and ending not later than twelve (12)
months after the date of the 10th anniversary of the Commencement Date (the
"Option Window"), subject to the terms below. Tenant must give irrevocable
written notice (the "Option Notice") of its intention to exercise the Purchase
Option not earlier than eighteen (18) months nor later than nine (9) months
before the beginning of the Option Window (provided if no Loan is then in place
at the time Tenant has the right to give an Option Notice, then Tenant may give
such Option Notice and close on any date selected by Tenant occurring during the
ninety (90) day period immediately after the date of the 10th anniversary of the
Commencement Date). Landlord shall not be permitted to amend the prepayment
timeframes and/or prepayment terms of any Loan in any manner that is less
favorable to Tenant during the period commencing six (6) months prior to the
beginning of Tenant's Option Notice period and continuing until its expiration,
without Tenant's consent (not to be unreasonably withheld or delayed). If Tenant
desires to close on a Purchase Date that is not at least six (6) months prior to
the Loan Maturity Date (in order to leave Landlord sufficient time to refinance
the Loan), then Tenant may shorten such period by up to three (3) months by
depositing with an escrow agent and under escrow terms which shall each be
mutually acceptable to Landlord and Tenant a non-refundable, interest-bearing
deposit in an amount equal to five (5%) percent of the Option Price on or before
the date that is six (6) months prior to the Loan Maturity Date. In addition,
Tenant may close on any other earlier date during the Option Window (that is not
subject to lockout under the terms of the applicable Loan) so long as Tenant
pays any and all Prepayment Premiums that may be due. Notwithstanding anything
to the contrary contained herein, Tenant shall not be permitted to deliver, and
Landlord shall not be obligated to accept, an Option Notice at any time that a
monetary Event of Default shall have occurred and then be continuing under this
Lease, but the acceptance of such Option Notice by Landlord shall not
constitute, or be deemed or construed as, a waiver by Landlord or a cure of any
Event of Default under this Lease.
(b) If Tenant shall exercise the foregoing Purchase Option, then
on the later to occur of (i) the Option Purchase Date or (ii) the date when
Tenant has paid the Option Price and has satisfied all other Monetary
Obligations, Landlord shall convey the Leased Premises to Tenant in accordance
with Paragraph 20 hereof; provided, that Landlord, shall not be obligated to
honor Tenant's Purchase Option at any time after the Option Lapse Date unless
Tenant has timely exercised such Purchase Option and Landlord, through no fault
of Tenant has failed to convey the Leased Premises to Tenant. IF (i) THIS LEASE
SHALL TERMINATE FOR ANY REASON PRIOR TO THE DATE ORIGINALLY FIXED HEREIN FOR THE
EXPIRATION OF THE TERM, OR (ii) IF TENANT SHALL FAIL TO GIVE THE OPTION EXERCISE
NOTICE, TIME BEING OF THE ESSENCE, OR (iii) THE TRANSACTION DOCUMENTS HAVE BEEN
MODIFIED, REFORMED OR REPLACED WITHOUT THE CONSENT OF LANDLORD PURSUANT TO A
PROCEEDING UNDER THE U.S. BANKRUPTCY CODE OR OTHERWISE, THEN, IN ANY SUCH EVENT,
THE OPTION
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PROVIDED IN THIS PARAGRAPH 34 AND ANY EXERCISE THEREOF BY TENANT SHALL CEASE AND
TERMINATE AND SHALL BE NULL AND VOID. IN SUCH EVENT TENANT SHALL EXECUTE A
QUITCLAIM DEED AND SUCH OTHER DOCUMENTS AS LANDLORD SHALL REASONABLY REQUEST
EVIDENCING THE TERMINATION OF ITS OPTION. The Purchase Option shall not be
transferable by Tenant to any Person independent of this Lease and the
assignment and assumption of all of the obligations of Tenant hereunder to the
extent permitted under Paragraph 21 hereof; provided that Tenant shall be
permitted to (x) assign this Purchase Option at any time during the Option
Window so long as Tenant has previously delivered the irrevocable Option Notice
or (y) so long as Tenant has previously delivered the irrevocable Option Notice,
designate a Person to whom Landlord shall assign all of its rights, title and
interest in and to the Leased Premises at the closing of the Purchase Option on
the Purchase Date. If Tenant has not satisfied all Remaining Obligations under
this Lease which have arisen on or prior to the Purchase Date on the Purchase
Date, then Tenant shall nevertheless be entitled to close the Purchase Option
provided that Tenant satisfies all Monetary Obligations at such closing and
Guarantor provides an indemnification, defense and hold harmless agreement
reasonably satisfactory to Landlord from and against such other non-monetary
obligations and liabilities of Tenant under the Lease.
35. Right of First Offer.
(a) If Landlord decides to offer the Leased Premises for sale to any
third party, Landlord shall first offer by written notice (the "ROFO Offer") to
sell the Leased Premises to Tenant for a specific purchase price (the "ROFO
Purchase Price") and, upon such other material economic and non-economic terms
and conditions as Landlord, in Landlord's sole discretion, would otherwise
intend to offer to sell the Leased Premises to any third party, prior to
Landlord's offering to sell the Leased Premises to any such third party; except
that the terms and conditions of any such sale to Tenant shall be (i) consistent
with the terms and provisions of this Paragraph 35 and (ii) the sale to Tenant
shall be "AS IS", "WHERE IS", without representation or warranty by Landlord. If
Landlord shall make the ROFO Offer, then, whether or not Tenant has accepted the
ROFO Offer, Landlord shall have the unilateral right, in Landlord's sole
discretion, to revoke the ROFO Offer if any monetary Event of Default exists
under this Lease on the date on which Landlord shall give, or would otherwise be
required to give, Tenant the ROFO Offer.
(b) Tenant shall have the right to accept the ROFO Offer only by
giving Landlord written notice of such acceptance (the "ROFO Notice") within
fifty (50) days after delivery by Landlord to Tenant of the ROFO Offer. Time
shall be of the essence with respect to said fifty (50) day period and delivery
of the ROFO Notice by Tenant. Tenant shall thereafter have forty-five (45) days
to arrange financing and complete due diligence, after which a non-refundable 3%
good faith deposit will be posted, and the transaction must close within twenty
(20) days thereafter. If Tenant shall accept the ROFO Offer, Tenant shall
execute any documentation reasonably required by Landlord to reflect Tenant's
acceptance of the ROFO Offer.
(c) If Tenant does not accept, or fails to accept, the ROFO Offer in
accordance with the provisions herein, Landlord shall be under no further
obligation with respect to such ROFO Offer pursuant to the terms contained
herein, and except as expressly hereinafter
61
provided below in this Paragraph 35(c), Tenant shall be deemed to have forever
waived and relinquished its right to such ROFO Offer and Landlord shall
thereafter be entitled to market the Leased Premises to others upon such terms
and conditions as Landlord in its sole discretion may determine, subject to the
following: (1) if the price (the "Third Party Price") for which Landlord intends
to enter into a binding contract with a third party (a "Third Party Contract")
to sell the Leased Premises is less than ninety five percent (95%) of the ROFO
Purchase Price offered to Tenant or (2) Landlord does not consummate the closing
of such Third Party Contract within one hundred eighty (180) days after the last
day that Tenant could have timely accepted such ROFO Offer under Paragraph 35(b)
above, then Landlord shall be required to again offer the Leased Premises to
Tenant at the Third Party Price and Tenant shall have thirty (30) days in which
to accept the Third Party Price and, if accepted, shall thereafter close in
accordance with the terms of the Third Party Contract . Tenant's right under
this Paragraph 35 shall apply to each subsequent decision by Landlord or any
successor Landlord to sell its interest in the Leased Premises, unless Tenant
had previously deliver a ROFO Notice hereunder and thereafter defaulted in its
obligation to close the transaction on the applicable purchase date which
default resulted in a termination by Landlord of the applicable contract.
(d) If Tenant does not timely deliver the ROFO Notice and the Leased
Premises are transferred to a third party, Tenant will attorn to such third
party as Landlord so long as such third party and Landlord notify Tenant in
writing of such transfer. At the request of Landlord, Tenant will execute such
documents confirming the agreement referred to above and such other agreements
as Landlord may reasonably request, provided that such agreements do not
increase the liabilities and obligations of Tenant hereunder or decrease
Tenant's rights and benefits hereunder. If Tenant accepts the ROFO Offer under
Paragraph 35(b) or (c) above and thereafter defaults in it s obligation to close
such purchase transaction, then Tenant shall be deemed to have forever waived
and relinquished its right to acquire the Leased Premises under this Paragraph
35 and this Paragraph 35 shall be of no further force or effect (and Tenant
shall, within ten (10) days after Landlord's request therefor, deliver an
instrument in form reasonably satisfactory to Landlord confirming the aforesaid
waiver and deletion of this Paragraph 35 from the Lease, but no such instrument
shall be necessary to make the provisions hereof effective), and Landlord shall
thereafter be entitled to market the Leased Premises to others upon such terms
and conditions as Landlord in its sole discretion may determine at any time
thereafter.
(e) Notwithstanding anything to the contrary contained herein, the
provisions of this Paragraph 35 shall not apply to or prohibit (i) any
mortgaging, subjection to deed of trust or other collateral assignment or
hypothecation of Landlord's interest in the Leased Premises, (ii) any sale of
the Leased Premises pursuant to a private power of sale under or judicial
foreclosure of any Mortgage to which Landlord's interest in the Leased Premises
is now or hereafter subject, (iii) any transfer of Landlord's interest in the
Leased Premises to a Lender, beneficiary under deed of trust or other holder of
a security interest therein or their designees by deed in lieu of foreclosure,
(iv) any transfer of the Leased Premises to any governmental or
quasi-governmental agency with power of condemnation, (v) any transfer of the
Leased Premises or any interest therein or in Landlord to any of the following
entities (each, a "CPA Entity"): Corporate Property Associates 14 Incorporated,
Corporate Property Associates 15, Incorporated, Corporate Property Associates
16-Global Incorporated, Corporate Property Associates 17-Global Incorporated or
CPA 17 Limited Partnership, or any combination thereof or any of their
respective direct or indirect subsidiaries, or to any entity for whom W.P. Xxxxx
& Co. LLC or
62
any of its affiliates or subsidiaries provides management or advisory services
or investment advice, (vi) a transfer to any Person to whom a CPA Entity sells
all or substantially all of its assets or equity interests (viii) any transfer
of the Leased Premises to any of the successors or assigns of any of the Persons
referred to in the foregoing clauses (i) through (iv).
(f) If the Leased Premises is purchased by Tenant pursuant to this
Xxxxxxxxx 00, Xxxxxxxx need not convey any better title thereto than that which
was conveyed to Landlord, and Tenant shall accept such title, subject, however,
to the Permitted Encumbrances and to all other liens, exceptions and
restrictions on, against or relating to any of the Leased Premises and to all
applicable Laws, except that Landlord shall cause to be removed of record the
lien of and security interest created by any Mortgage (including the Landlord
Mortgage) or assignment of leases and rents and liens, exceptions and
restrictions on, against or relating to the Leased Premises which have been
created by or resulted solely from acts of Landlord after the date of this
Lease, unless the same are Permitted Encumbrances or customary utility easements
benefiting the Leased Premises or were created with the written consent of
Tenant or the Condominium Board or as a result of a default by Tenant under this
Lease.
(g) Upon the date fixed for a purchase of the Leased Premises pursuant
to this Paragraph 35 (or such other date mutually acceptable to Landlord and
Tenant but in no event later than the date specified in the Third Party
Contract, if applicable (the "Purchase Date"), Tenant shall pay to Landlord, or
to any Person to whom Landlord directs payment, the balance of the ROFO Purchase
Price and all other sums payable by Tenant under the ROFO Offer, in Federal
Funds, and Landlord shall execute and deliver to Tenant or its designee (i) an
assignment of the Severance Lease which describe the Leased Premises being
conveyed and conveys the title thereto as provided in Paragraph 35(f) above,
(ii) a termination of this Lease and a termination of the memorandum of lease in
recordable form, and (iii) such other instruments as shall be necessary to
transfer the Leased Premises to Tenant or its designee. If on the Purchase Date
any Monetary Obligations remain outstanding Tenant shall pay to Landlord on the
Purchase Date the amount of such Monetary Obligations. Upon the completion of
such purchase by Tenant or its designee, this Lease and all obligations and
liabilities of Tenant hereunder shall terminate, except any obligations of
Tenant under this Lease, actual or contingent, which arise on or prior to the
expiration or termination of this Lease or which survive such expiration or
termination by their own terms. Any prepaid Monetary Obligations paid to
Landlord shall be prorated as of the Purchase Date, and the prorated unapplied
balance shall be deducted from the ROFO Purchase Price due to Landlord;
provided, that no apportionment of any Impositions shall be made upon any such
purchase.
(i) If the completion of the purchase by Tenant or its designee
pursuant to this Paragraph 35 shall be delayed after the date scheduled for such
purchase, Basic Rent and Additional Rent shall continue to be due and payable
until completion of such purchase. The provisions of Paragraph 21(i) hereof
regarding restrictions on a sale of the Leased Premises to a Tenant Competitor
shall apply to this Paragraph 35.
36. Miscellaneous.
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(a) The paragraph headings in this Lease are used only for
convenience in finding the subject matters and are not part of this Lease or to
be used in determining the intent of the parties or otherwise interpreting this
Lease.
(b) As used in this Lease, the singular shall include the plural
and any gender shall include all genders as the context requires and the
following words and phrases shall have the following meanings: (i) "including"
shall mean "including without limitation"; (ii) "provisions" shall mean
"provisions, terms, agreements, covenants and/or conditions"; (iii) "lien" shall
mean "lien, charge, encumbrance, title retention agreement, pledge, security
interest, mortgage and/or deed of trust"; (iv) "obligation" shall mean
"obligation, duty, agreement, liability, covenant and/or condition"; (v) "any of
the Leased Premises" shall mean "the Leased Premises or any part thereof or
interest therein"; (vi) "any of the Land" shall mean "the Land or any part
thereof or interest therein"; (vii) "any of the Improvements" shall mean "the
Improvements or any part thereof or interest therein"; and (viii) "any of the
Equipment" shall mean "the Equipment or any part thereof or interest therein".
(c) Any act which Landlord is permitted to perform under this
Lease may be performed at any time and from time to time by Landlord or any
person or entity designated by Landlord. Landlord shall not unreasonably
withhold, delay or condition its consent whenever such consent is required under
this Lease, except as otherwise specifically provided in this Lease (including,
without limitation, with respect to any assignment of this Lease or subletting
of the Leased Premises which shall be governed by the express terms of Paragraph
21 hereof). In any instance in which Landlord agrees not to act unreasonably,
Tenant hereby waives any claim for damages against or liability of Landlord
which is based upon a claim that Landlord has unreasonably withheld, delayed or
conditioned any consent or approval requested by Tenant, and Tenant agrees that
its sole remedy shall be an action for declaratory judgment. If with respect to
any required consent or approval Landlord is required by the express provisions
of this Lease not to unreasonably withhold or delay its consent or approval, and
if it is determined in any such proceeding referred to in the preceding sentence
that Landlord acted unreasonably, the requested consent or approval shall be
deemed to have been granted; however, Landlord shall have no liability
whatsoever to Tenant for its refusal or failure to give such consent or approval
except that Landlord shall reimburse Tenant for its reasonable attorneys fees
and court costs incurred in connection with such proceeding if Tenant so
prevails. Tenant's sole remedy for Landlord's unreasonably withholding or
delaying, consent or approval shall be as provided in this Paragraph.
Notwithstanding anything to the contrary contain herein, except and only to the
extent otherwise expressly provided in this Lease, in no event shall Landlord or
Tenant be liable for any consequential indirect or punitive damages.
(d) Landlord shall in no event be construed for any purpose to be
a partner, joint venturer or associate of Tenant or of any subtenant, operator,
concessionaire or licensee of Tenant with respect to any of the Leased Premises
or otherwise in the conduct of their respective businesses.
(e) This Lease and any documents which may be executed by Tenant
on or about the effective date hereof at Landlord's request constitute the
entire agreement between the parties and supersede all prior understandings and
agreements, whether written or oral, between the parties hereto relating to the
Leased Premises and the transactions provided for
64
herein. Landlord and Tenant are business entities having substantial experience
with the subject matter of this Lease and have each fully participated in the
negotiation and drafting of this Lease. Accordingly, this Lease shall be
construed without regard to the rule that ambiguities in a document are to be
construed against the drafter.
(f) This Lease may be modified, amended, discharged or waived
only by an agreement in writing signed by the party against whom enforcement of
any such modification, amendment, discharge or waiver is sought.
(g) The covenants of this Lease shall run with the land and bind
Landlord and Tenant, their respective successors and assigns and all present and
subsequent encumbrancers and subtenants of any of the Leased Premises, and shall
inure to the benefit of Landlord and Tenant and their respective successors and
assigns. If there is more than one Tenant, the obligations of each shall be
joint and several.
(h) If any one or more of the provisions contained in this Lease
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Lease, but this Lease shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
(i) All exhibits attached hereto are incorporated herein as if
fully set forth.
(j) This Lease shall be governed by and construed and enforced in
accordance with the laws of the State.
(k) Tenant is not, nor will Tenant become (i) a Person with whom
U.S. persons or entities are restricted from doing business under regulations of
the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury
(including those named on OFAC's Specially Designated and Blocked Persons list)
or under any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental action
or (ii) a Person who violates the U.S. Foreign Corrupt Practices Act 15 U.S.C.
Sections 78dd-1, 78dd-2 and 78dd-3 and Tenant not will engage in any dealings or
transactions or be otherwise associated with such persons or entities.
(l) Landlord is not, nor will Landlord become (i) a Person with
whom U.S. persons or entities are restricted from doing business under
regulations of the Office of Foreign Asset Control ("OFAC") of the Department of
the Treasury (including those named on OFAC's Specially Designated and Blocked
Persons list) or under any statute, executive order (including the September 24,
2001, Executive Order Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism), or other
governmental action or (ii) a Person who violates the U.S. Foreign Corrupt
Practices Act 15 U.S.C. Sections 78dd-1, 78dd-2 and 78dd-3 and Landlord not will
engage in any dealings or transactions or be otherwise associated with such
persons or entities.
65
(m) This Lease may be executed in a number of counterparts and by
different parties hereto in separate counterparts each of which, when so
executed, shall be deemed to be an original and all of which taken together
shall constitute but one and the same agreement. For purposes of the
consummation of this Lease and the transactions contemplated hereby, the parties
hereto may execute this Lease by electronic signature, but shall promptly
thereafter execute and deliver to each other fully executed "wet signature"
counterpart originals.
(n) Each of Landlord and Tenant agrees that it shall throughout
the Term of this Lease maintain its status as a single purpose, bankruptcy
remote entity and acknowledges and agrees that in entering into this transaction
the other party hereto has relied upon such corporate separateness, and the
maintenance of its single purpose, bankruptcy remote entity status.
(o) Except as may be otherwise expressly provided to the contrary
in this Lease, no failure of Landlord or Tenant (i) to insist at any time upon
the strict performance of any provision of this Lease or (ii) to exercise any
option, right, power or remedy contained in this Lease shall be construed as a
waiver, modification or relinquishment thereof ; provided that nothing herein is
intended to alter, diminish or supersede any "time of the essence" provision or
any forfeiture or waiver of any right of Tenant with respect to any Renewal
Term, the Purchase Option or any right of first refusal contained herein. A
receipt by Landlord of any sum in satisfaction of any Monetary Obligation with
knowledge of the breach of any provision hereof shall not be deemed a waiver of
such breach, and no waiver by Landlord of any provision hereof shall be deemed
to have been made unless expressed in a writing signed by Landlord.
(p) Tenant shall, within ten (10) days after written request,
re-make, re-execute, re-deliver, and/or file or cause the same to be done, such
corrected or replacement documents executed in connection with this Lease
transaction ("Section 36(p) Documents"), as Landlord may deem reasonably
necessary in order to give effect to the rights expressly conferred on Landlord
pursuant to this Lease and the Transaction Documents such that the documents for
this transaction shall be an accurate reflection of the parties' agreement
hereunder provided however, under no circumstances shall Tenant's obligations
and/or liabilities be increased by reason of the Section 36(p) Documents nor
shall Tenant's rights and/or benefits be decreased by reason of the Section
36(p) Documents.
37. Security Deposit.
(a) Concurrently with the mutual execution of this Lease, Tenant
shall deliver to Landlord a security deposit (the "Security Deposit") in the
amount of $20,000,000.00. The Security Deposit shall be in the form an
irrevocable letter of credit (the "Letter of Credit") issued by a bank
acceptable to Landlord and having a long-term unsecured debt rating of not less
than "A-" from Standard & Poor's Corporation or "A3" from Xxxxx'x Investor
Services, Inc. (an "Acceptable Rated Bank") and in form and substance
satisfactory to Landlord. The Security Deposit shall remain in full force and
effect during the Term, subject to the provisions of Paragraph 37(b) as security
for the payment by Tenant of the Rent and all other charges or payments to be
paid hereunder and the performance of the covenants and obligations contained
herein, and the Letter of Credit shall be renewed at least thirty (30) days
prior to any expiration thereof. If Tenant fails to renew the Letter of Credit
by such date, time being of the essence,
66
Landlord shall have the right at any time after the thirtieth (30th) day before
such expiration date to draw on the Letter of Credit and to deposit the proceeds
of the Letter of Credit as a cash security deposit in an interest bearing
account for the benefit of Landlord at an Acceptable Rate Bank (such proceeds,
plus any interest earned thereon, a "Cash Security Deposit"). The Cash Security
Deposit shall be held in a segregated security deposit account and not be
commingled with other funds of Landlord or other Persons, and upon written
request of Tenant (provided that no monetary Event of Default has occurred and
is then continuing) such Cash Security Deposit shall be held in short-term US
Treasury instruments or a short-term US Treasury backed money market fund
reasonably satisfactory to Landlord. Tenant shall have the right at any time
after a Cash Security Deposit is made to replace such Cash Security Deposit with
a Letter of Credit meeting the requirements of this Paragraph 37(a).
Notwithstanding the foregoing, Landlord hereby approves Bank of America as the
initial issuer of the Letter of Credit; provided that, if Bank of America no
longer qualifies an Acceptable Rated Bank, then Landlord shall have the right to
request a replacement Letter of Credit from a bank that meets the debt rating
criteria for an Acceptable Rated Bank set forth above in this Paragraph 37(a).
(b) Notwithstanding anything to the contrary set forth in this
Lease, at any time after the Commencement Date, Tenant shall be entitled to a
return of the Security Deposit (an "Earnout") provided that Tenant shall have
met the Earnout Criteria and provided further that no Event of Default has
occurred and is then continuing at the time of the proposed Earnout. If Tenant
desires a return of the Security Deposit in accordance with the provisions set
forth in this Paragraph 37, then on the applicable date Tenant shall provide
Landlord (or Lender) with written notice requesting same (the "Earnout Notice");
provided that such Earnout Notice may not be delivered prior to the public
disclosure by Guarantor of the facts constituting the Earnout Criteria in its 8K
financial report to the SEC (or, as to clause (C) below only, a certificate from
the Chief Financial Officer of Guarantor certifying that Guarantor is in
compliance with terms of said clause (C)), and in such event Landlord shall,
within ten (10) days after receipt of Tenant's written notice, return the Letter
of Credit or Cash Security Deposit, as the case may be, to Tenant. As used in
this Paragraph 37, the term "Earnout Criteria" shall mean the occurrence of any
one of the following events: (A) sale of all or a portion of the Guarantor's
interest in New England Sports Ventures LLC for a purchase price of not less
than $100,000,000.00, (B) the refinancing of the Guarantor's Revolving Credit
Agreement maturing June, 2011, for a minimum of a three (3) year term with an
unused capacity of not less than $100,000,000.00, or (C) Guarantor having an
invested cash balance of $100,000,000 or more as of July 30, 2011; provided that
such invested cash is not the result of any borrowing under any indebtedness
maturing prior to March 31, 2014 or the refinancing of any existing indebtedness
with a maturity date prior to March 31, 2014.
(c) If at any time an Event of Default shall have occurred and be
continuing, Landlord shall be entitled, at its sole discretion, to draw on the
Letter of Credit or to withdraw the Cash Security Deposit from the
above-described account and to apply the proceeds in payment of (i) any Rent or
other charges for the payment of which Tenant shall be in arrears beyond the
expiration of any applicable notice cure period, (ii) any expense incurred by
Landlord in curing any Event of Default of Tenant, and/or (iii) any other sums
due to Landlord in connection with any Event of Default or the curing thereof,
and (iv) if this Lease is terminated or Landlord has commenced any other
remedies under Paragraph 23 hereof, any damages to which Landlord is entitled,
in the exercise of its rights and remedies under said Paragraph 23, or to do
67
any combination of the foregoing, all in such order or priority as Landlord
shall so determine in its sole discretion and Tenant acknowledges and agrees
that such proceeds shall not constitute assets or funds of Tenant or its estate,
or be deemed to be held in trust for Tenant, but shall be, for all purposes, the
property of Landlord (or Lender, to the extent assigned). Tenant further
acknowledges and agrees that (1) Landlord's application of the proceeds of the
Letter of Credit or Cash Security Deposit towards the payment of Basic Rent,
Additional Rent or the reduction of any damages due Landlord in accordance with
Paragraph 23 of this Lease, constitutes a fair and reasonable use of such
proceeds, and (2) the application of such proceeds by Landlord towards the
payment of Basic Rent, Additional Rent or any other sums due under this Lease
shall not constitute a cure by Tenant of the applicable default provided that an
Event of Default shall not exist if Tenant restores the Security Deposit to its
full amount within five (5) business days and in accordance with the
requirements of this Paragraph 37, so that the original amount of the Security
Deposit shall be again on deposit with Landlord.
(d) At the expiration or earlier termination of the Term (other
than a default termination) and so long as no Event of Default then exists, the
Letter of Credit (or the Cash Security Deposit that replaces the Letter of
Credit, as the case may be), shall be returned to Tenant within ten (10) days
after such expiration or earlier termination of the Term.
(e) Landlord shall have the right to designate Lender or any
other holder of a Mortgage as the beneficiary of the Security Deposit during the
term of the applicable Loan, and such Lender or other holder of a Mortgage shall
have all of the rights of Landlord under this Paragraph 37; provided that, such
Lender (and any subsequent assignee or holder of the Security Deposit ) agrees
in writing with or for the benefit of Tenant that Lender's rights in and to such
Security Deposit are subject to the terms and provisions of this Paragraph 37.
Tenant covenants and agrees to execute such consent or other transfer document,
if any, as may be reasonably requested by Landlord from time to time solely for
the purpose of changing the holder of the Security Deposit as hereinabove
provided.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
68
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to
be duly executed under seal as of the day and year first above written.
LANDLORD:
620 EIGHTH NYT (NY) LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: 620 EIGHTH GP NYT (NY) LLC, a
Delaware limited liability company,
its general partner
By: CPA:17 LIMITED PARTNERSHIP, a
Delaware limited partnership,
its sole member
By: CORPORATE PROPERTY
ASSOCIATES 17 - GLOBAL INCORPORATED,
a Maryland corporation,
its general partner
By: /s/ Xxxxx X. Xxx
------------------------------------
Name: Xxxxx X. Xxx
Title: Executive Director
WITNESS: TENANT:
NYT REAL ESTATE COMPANY, LLC,
a New York limited liability company,
By: /s/ Alaina Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------- ------------------------------------
Name: Alaina Xxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
------------------------------ Title: Manager
Title: Witness
-----------------------------
SIGNATURE PAGE TO LEASE AGREEMENT FOR NEW YORK TIMES
EXHIBIT A
PREMISES
The Condominium Units (in the BUILDING located at and known as THE NEW YORK
TIMES BUILDING CONDOMINIUM and by Street Number 000-000 0XX XXXXXX, XXX XXXX,
XXX XXXX), designated and described as Units (SEE SCHEDULE ANNEXED) (hereinafter
called the "UNITS") in the Declaration Establishing a Plan of Leasehold
Condominium Ownership of Premises made by The New York Times Building LLC, as
Declarant, under the Condominium Act of The State of New York (Article 9-B of
the Real Property Law of the State of New York), dated as of August 4, 2006 and
recorded August 15, 2006 in the Office of the Register The City of New York (the
"REGISTER"), as CRFN 2006000460293, as amended by First Amendment to Declaration
dated January 29, 2007 and recorded as CRFN 2007000075106, and Second Amendment
to Declaration dated October 11, 2007 and recorded as CRFN 2008000008734, and
Third Amendment to Declaration dated March 6, 2009 and to be recorded with the
Register (which Declaration, and any further amendments thereto, are hereinafter
collectively called the "DECLARATION"), establishing a plan for leasehold
condominium ownership of said Building and the land upon which the same is
erected (hereinafter sometimes collectively called the "PROPERTY") and also
designated and described as Tax Lots No. (SEE SCHEDULE ANNEXED), Block 1012
Section 4, Borough of MANHATTAN on the Tax Map of the Real Property Assessment
Department of the City of New York and on the floor plans of said Building
certified by Xxxxxx Xxxxxx, approved by the Real Property Assessment Bureau on
August 13, 2006 and filed as Condominium Plan No. 1595 on August 15, 2006 in the
aforesaid Register's Office.
The land upon which the Building containing the Units is erected as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, bounded
and described as follows:
BEGINNING at the corner formed by the intersection of the northerly line of Xxxx
00xx Xxxxxx with the easterly line of 8th Avenue,
RUNNING THENCE northerly along said easterly line of 8th Avenue, 197 feet 6
inches to the corner formed by the intersection of the easterly side of 0xx
Xxxxxx with the southerly line of West 00xx Xxxxxx;
THENCE easterly along said southerly line of West 41st Street, 400 feet;
THENCE southerly and parallel to said easterly line of 8th Avenue, 197 feet 6
inches to the northerly line of Xxxx 00xx Xxxxxx;
THENCE westerly along said northerly line of West 40th Street, 400 feet to the
point or place of BEGINNING,
TOGETHER with an undivided percentage interest (SEE SCHEDULE ANNEXED) in the
Common Elements and the NYTC Limited Common Elements (as such terms are defined
in the
EXHIBIT A TO LEASE AGREEMENT FOR NEW YORK TIMES
Declaration) of the New York Times Building Condominium, recorded as CRFN
2006000460293 as amended.
SCHEDULE OF UNITS
PERCENTAGE INTEREST
UNIT DESIGNATION TAX LOT IN COMMON ELEMENTS
---------------- ------- -------------------
0-A 1001 0.6627%
1-A 1003 2.0132%
1-E 1007 0.0691%
2-A 1009 4.7805%
3-A 1010 4.7579%
4-A 1011 4.5636%
5-A 1012 1.6352%
6-A 1013 1.7325%
7-A 1014 1.7325%
8-A 1015 1.7325%
9-A 1016 1.7325%
10-A 1017 1.7325%
11-A 1018 1.7325%
12-A 1019 1.7325%
13-A 1020 1.7325%
14-A 1021 1.7440%
15-A 1022 1.3998%
16-A 1023 1.7484%
17-A 1024 1.7207%
18-A 1025 1.7711%
19-A 1026 1.7711%
20-A 1027 1.7711%
28-A 1035 0.4446%
EXHIBIT B
MACHINERY AND EQUIPMENT
All fixtures, machinery, apparatus, equipment, fittings and appliances of every
kind and nature whatsoever now or hereafter affixed or attached to or installed
in any of the Leased Premises (except as hereafter provided), including all
electrical, anti-pollution, heating, lighting (including hanging fluorescent
lighting), incinerating, power, air cooling, air conditioning, humidification,
sprinkling, plumbing, lifting, cleaning, fire prevention, fire extinguishing,
security, and ventilating systems, devices and machinery and all engines, pipes,
pumps, tanks (including exchange tanks and fuel storage tanks), motors,
conduits, ducts, steam circulation coils, blowers, steam lines, compressors, oil
burners, boilers, doors, windows, loading platforms, lavatory facilities,
stairwells, fencing (including cyclone fencing), passenger and freight
elevators, overhead cranes and garage units, together with all additions
thereto, substitutions therefor and replacements thereof required or permitted
by this Lease, but excluding Tenant's Personal Property and all other personal
property and all trade fixtures, machinery, office, manufacturing and warehouse
equipment which are not necessary to the operation of the Building which
constitutes part of the Leased Premises for the uses permitted under Paragraph
4(a) of this Lease.
EXHIBIT B TO LEASE AGREEMENT FOR NEW YORK TIMES - 1
EXHIBIT C
PERMITTED ENCUMBRANCES
1. Local real estate taxes, PILOT and assessments, not yet due and payable.
2. State of facts as shown on survey by Xxxx X. Xxxxxx- X.X. Xxxxxxx, Inc.,
dated 9/15/2007 and brought to date by visual examination by Xxxxxx X. Link,
Land Surveyor, on 12/11/2008.
3. Terms, Provisions, Covenants and Restrictions in Declaration of Covenants and
Restrictions made by New York State Urban Development Corporation dated as of
6/21/1988 and recorded 4/20/1990 in Reel 1686, Page 1.
a) Amendment to the Declaration of Covenants and Restrictions made by
New York State Urban Development Corporation d/b/a Empire State Development
Corporation dated as of 7/10/1996 and recorded 8/8/1996 in Reel 2354 Page
437.
b) Unrecorded Amendment dated as of 12/13/1996.
c) Second Amendment to the Declaration of Covenants and Restrictions
made by New York State Urban Development Corporation d/b/a Empire State
Development Corporation dated as of 6/30/1998 and recorded 11/4/1998 in
Reel 2744 Page 241.
d) Third Amendment to the Declaration of Covenants and Restrictions
made by New York State Urban Development Corporation d/b/a Empire State
Development Corporation dated as of 12/1/2000, recorded 3/13/2001 in Reel
3250 Page 1618.
e) Fourth Amendment to the Declaration of Covenants and Restrictions
made by New York State Urban Development Corporation d/b/a Empire State
Development Corporation dated as of 12/1/2000, recorded 3/13/2001 in Reel
3250 Page 1752.
4. Terms, Provisions, Covenants and Restrictions in Declaration of Covenants and
Restrictions made by NEW YORK STATE URBAN DEVELOPMENT CORPORATION dated of June
21, 1988, recorded April 20, 1990 in Reel 1686 Page 383 (benefits premises
described herein and other premises not a part of the transaction).
5. Terms and conditions of Site 8 South Land Acquisition and Development
Agreement by and among NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE
STATE DEVELOPMENT CORPORATION, 42ND ST. DEVELOPMENT PROJECT, INC. and THE NEW
YORK TIMES BUILDING LLC ("LADA"), recorded 10/24/2003 as CRFN 2003000433119 as
amended by CRFN 2003000433120.
6. Terms and conditions of Site 8 South Declaration of Design, Use and Operation
by NEW YORK STATE URBAN DEVELOPMENT CORPORATION, d/b/a EMPIRE STATE DEVELOPMENT
CORPORATION and 42ND ST. DEVELOPMENT PROJECT, INC. ("DUO"), recorded 10/24/2003
as CRFN 2003000433121.
EXHIBIT C TO LEASE AGREEMENT FOR NEW YORK TIMES- 1
7. Terms and conditions of Site 8 South Project Agreement by and among NEW YORK
STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION,
42ND ST. DEVELOPMENT PROJECT, INC., THE NEW YORK TIMES BUILDING LLC, NYT REAL
ESTATE COMPANY LLC and FC LION LLC ("Project Agreement"), recorded 10/24/2003 as
CRFN 2003000433116.
(a) Unrecorded Agreement dated as of 6/21/88 recited in Article I.
Sec. 1.01.
8. Terms, Covenants, Conditions and Reversionary Rights contained in Deeds dated
9/8/2003 and recorded 10/24/2003 as CRFN 2003000433117 and CRFN 2003000433118.
9. Terms, Conditions and Provisions in Lease, as evidenced by Memorandum of
Agreement of Lease, including an Option to Purchase, between 42ND ST.
DEVELOPMENT PROJECT, INC. and THE NEW YORK TIMES BUILDING LLC, dated 12/12/2001,
recorded 10/24/2003 as CRFN 2003000433122.
a) Letter Agreement dated 4/8/2004 (as cited in Lease Assignment made
by and between The New York Times Building LLC and 42nd St. Development
Project, Inc. under CRFN 2006000644732).
b) Lease Assignment (Assignment and Assumption Agreement) made by and
between The New York Times Building LLC (assignor) and 42nd St. Development
Project, Inc.(assignee) dated as of 8/15/2006, recorded 11/20/2006 as CRFN
2006000644732.
c) Amended and Restated Agreement of Lease by and between 42nd St.
Development Project, Inc. (landlord) and 42nd St. Development Project, Inc.
(tenant) dated as of 8/15/2006, 11/20/2006 as CRFN 2006000644736 and
further amended by CRFN 2007000100154.
10. Terms, Conditions and Provisions in Sublease, as evidenced by Memorandum of
Agreement of Sublease between THE NEW YORK TIMES BUILDING LLC and NYT REAL
ESTATE COMPANY LLC dated 12/12/2001, recorded 10/24/2003 as CRFN 2003000433125.
a) Lease Assignment (Assignment and Assumption Agreement ) made by and
between THE NEW YORK TIMES BUILDING LLC (ASSIGNOR) and 42ND ST. DEVELOPMENT
PROJECT, INC. (assignee) dated as of 8/15/2006, recorded 11/20/2006 as CRFN
2006000644732, WHICH ASSIGNS Landlord's Interest in Lease.
b) First Amendment to Agreement of Sublease (NYT) by and between 42ND
ST.. DEVEOPMENT PROJECT, INC. (landlord) and NYT REAL ESTATE COMPANY LLC
(Tenant) dated as of 8/15/2006, recorded 11/20/2006 as CRFN 2006000644735,
as further amended by Second Amendment to Agreement of Sublease (NYT) by
and between 42ND ST. DEVELOPMENT PROJECT, INC. (landlord) and NYT REAL
ESTATE COMPANY LLC (Tenant) dated as of 1/29/2007, recorded 2/22/2007 as
CRFN 2007000100157, and by Third Amendment to Agreement of Sublease (NYT)
by and between 42ND ST.
EXHIBIT C TO LEASE AGREEMENT FOR NEW YORK TIMES- 2
DEVELOPMENT PROJECT, INC. (landlord) and NYT REAL ESTATE COMPANY LLC
(tenant) dated as of March 6, 2009, to be recorded.
11. Easement Agreement between THE NEW YORK TIMES BUILDING LLC, THE NEW YORK
CITY TRANSIT AUTHORITY, 42ND ST. DEVELOPMENT PROJECT, INC. and THE CITY OF NEW
YORK dated 12/12/2001, recorded 10/24/2003 as CRFN 2003000433126, which relates
to among other things the Subway Entrance as shown on Survey aforementioned.
12. Terms, provisions, covenants, restrictions, conditions and options contained
in and rights and easements established by Declaration of Leasehold Condominium
and By-Laws dated 8/4/2006, recorded 8/15/2006 as CRFN 2006000460293, as amended
by First Amendment to Declaration dated 1/29/07 and recorded 2/8/07 as CRFN
2007000025106, Second amendment to Declaration dated 10/11/07 and recorded
1/8/08 as CRFN 2008000008234, Third Amendment to Declaration date 3/6/09 and to
be recorded with the Register, and Fourth Amendment to Declaration dated as of
3/6/09 and to be recorded with the Register.
EXHIBIT C TO LEASE AGREEMENT FOR NEW YORK TIMES- 3
EXHIBIT D
BASIC RENT PAYMENTS
1. Basic Rent.
(a) Initial Term. Subject to the adjustments provided for in Paragraph
2 below, Basic Rent payable in respect of the Term shall be at the per annum
rate set forth on Schedule "D-1" annexed hereto corresponding to the applicable
Lease Year set forth thereon, payable monthly in advance, on each Basic Rent
Payment Date, in equal installments as per said Schedule "D-1" annexed hereto.
Pro rata Basic Rent for the period from the date hereof through the last
calendar day of March, 2009 shall be paid on the date hereof.
(b) Renewal Term. During any Renewal Term, Annual Basic Rent for each
applicable Renewal Term shall be an amount equal to the greater of (x) 95% of
FMRV as of the first day of the applicable Renewal Term, as determined in
accordance with Paragraph 29 of this Lease, and (y) the Basic Rent then in
effect for the immediately preceding Lease Year, shall be payable in equal
monthly installments in advance. Only if the Basic Rent for any Renewal Term is
determined to be the Basic Rent under clause (y) hereinabove ("Escalated Basic
Rent"), then same shall be subject to the annual adjustments provided for in
Paragraph 2, below. In the event of any extension of the Term of this Lease with
respect to only a portion of the Leased Premises under Paragraph 5(c) of this
Lease (the "Retained Floors"), Basic Rent shall be based upon the same formula
as hereinabove provided (i. e., the greater of (x) or (y)) but shall be pro
rated at the same Basic Rent per rentable square foot multiplied by the
percentage that the rentable square footage of the Retained Floors bear to the
rentable square footage of the entire Leased Premises (including the Retained
Floors but exclusive of the Cellar Space) as same is set forth in Paragraph 1 of
this Lease.
2. Adjustments to Basic Rent. With respect to any Renewal Term, Escalated
Basic Rent shall not be adjusted until the April 1st first occurring after the
first anniversary of the applicable Renewal Term. As of such April 1st date and
thereafter on each succeeding April 1st during the applicable Renewal Term,
Escalated Basic Rent shall be increased by 2.25% over the Basic Rent in effect
for the most recent one (1) year period immediately preceding each of the
foregoing dates (each such date being hereinafter referred to as the "Basic Rent
Adjustment Date").
3. Effective as of a given Basic Rent Adjustment Date, Basic Rent payable
under this Lease until the next succeeding Basic Rent Adjustment Date shall be
the Basic Rent in effect after the adjustment provided for as of such Basic Rent
Adjustment Date. Notice of the new annual Basic Rent shall be delivered to
Tenant on or before the tenth (10th) day preceding each Basic Rent Adjustment
Date, but any failure to do so by Landlord shall not be or be deemed to be a
waiver by Landlord of Landlord's rights to collect such sums. Tenant shall pay
to Landlord, within ten (10) days after a notice of the new annual Basic Rent is
delivered to Tenant, all amounts due from Tenant, but unpaid, because the stated
amount as set forth above was not delivered to Tenant at least ten (10) business
days preceding the Basic Rent Adjustment Date in question.
EXHIBIT D TO LEASE AGREEMENT FOR NEW YORK TIMES
SCHEDULE D-1
Basic Rent Schedule
LEASE YEAR ANNUAL RENT MONTHLY RENT
---------- -------------- -------------
1 $24,187,500.00 $2,015,625.00
2 $24,550,312.50 $2,045,859.38
3 $24,918,567.19 $2,076,547.27
4 $25,292,345.70 $2,107,695.47
5 $25,671,730.88 $2,139,310.91
6 $26,056,806.84 $2,171,400.57
7 $26,447,658.95 $2,203,971.58
8 $26,844,373.83 $2,237,031.15
9 $27,247,039.44 $2,270,586.62
10 $27,655,745.03 $2,304,645.42
11 $27,966,541.71 $2,330,545.14
12 $28,595,788.90 $2,382,982.41
13 $29,239,194.15 $2,436,599.51
14 $29,897,076.02 $2,491,423.00
15 $30,569,760.23 $2,547,480.02
SCHEDULE D-1 TO LEASE AGREEMENT FOR NEW YORK TIMES
EXHIBIT E
DEFAULT TERMINATION YIELD SCHEDULE
Month Amount
----- ------------
3/2009 $227,536,973
4/2009 $230,125,742
5/2009 $232,767,365
6/2009 $235,462,921
7/2009 $238,213,512
8/2009 $241,020,261
9/2009 $243,884,314
10/2009 $246,806,841
11/2009 $249,789,037
12/2009 $252,832,119
1/2010 $255,937,331
2/2010 $259,105,940
3/2010 $262,308,391
4/2010 $265,576,225
5/2010 $268,910,777
6/2010 $272,313,410
7/2010 $275,785,513
8/2010 $279,328,505
9/2010 $282,943,833
10/2010 $286,632,974
11/2010 $290,397,435
12/2010 $294,238,753
1/2011 $298,158,499
2/2011 $302,158,272
3/2011 $306,208,394
4/2011 $310,341,205
5/2011 $314,558,395
6/2011 $318,763,327
7/2011 $318,280,596
8/2011 $317,795,452
9/2011 $317,307,882
10/2011 $316,817,874
11/2011 $316,325,416
12/2011 $315,830,496
1/2012 $315,333,101
2/2012 $314,833,219
3/2012 $314,299,690
4/2012 $313,763,493
5/2012 $313,224,615
6/2012 $312,683,042
7/2012 $312,138,762
8/2012 $311,591,760
9/2012 $311,042,024
10/2012 $310,489,538
11/2012 $309,934,291
12/2012 $309,376,267
1/2013 $308,815,453
2/2013 $308,251,834
3/2013 $307,653,783
4/2013 $307,052,741
5/2013 $306,448,693
6/2013 $305,841,626
7/2013 $305,231,523
8/2013 $304,618,370
9/2013 $304,002,151
10/2013 $303,382,851
11/2013 $302,760,454
12/2013 $302,134,945
1/2014 $301,506,309
2/2014 $300,874,530
3/2014 $300,207,502
4/2014 $299,537,139
5/2014 $298,863,424
6/2014 $298,186,341
7/2014 $297,505,872
8/2014 $296,822,000
9/2014 $296,134,710
10/2014 $295,443,983
11/2014 $294,749,802
12/2014 $294,052,151
1/2015 $293,351,011
2/2015 $292,646,365
3/2015 $291,905,626
4/2015 $291,161,182
5/2015 $290,413,016
6/2015 $289,661,110
7/2015 $288,905,444
8/2015 $288,146,000
9/2015 $287,382,758
10/2015 $286,615,700
11/2015 $285,844,807
12/2015 $285,070,060
1/2016 $284,291,438
2/2016 $283,508,924
3/2016 $282,689,437
4/2016 $281,865,853
5/2016 $281,038,151
6/2016 $280,206,311
7/2016 $279,370,311
8/2016 $278,530,132
9/2016 $277,685,751
10/2016 $276,837,149
11/2016 $275,984,304
12/2016 $275,127,194
1/2017 $274,265,799
2/2017 $273,400,097
3/2017 $272,496,510
4/2017 $271,588,406
5/2017 $270,675,762
6/2017 $269,758,554
7/2017 $268,836,760
8/2017 $267,910,357
9/2017 $266,979,323
10/2017 $266,043,633
11/2017 $265,103,264
12/2017 $264,158,194
1/2018 $263,208,398
2/2018 $262,253,853
3/2018 $261,260,477
4/2018 $260,262,134
5/2018 $259,258,800
6/2018 $258,250,448
7/2018 $257,237,055
8/2018 $256,218,595
9/2018 $255,195,042
10/2018 $254,166,372
11/2018 $253,132,559
12/2018 $252,093,576
1/2019 $251,049,398
2/2019 $251,049,398
Thereafter $250,000,000
EXHIBIT E TO LEASE AGREEMENT FOR NEW YORK TIMES
EXHIBIT F
FORM OF NOTICE OF ELECTION TO EXTEND TERM
[TENANT NAME]
[Tenant address]
[Landlord Name] _____________, 20__
[Landlord notice address(es) per Paragraph 24 of Lease]
NOTICE is hereby given to the above named Landlord that
_____________________, a ___________________, having an office at
____________________, as Tenant under that certain Lease Agreement, made as of
February __, 2009, between [620 Eighth NYT (NY) Limited Partnership], a Delaware
limited partnership, as landlord, and NYT Real Estate Company, LLC, a New York
limited liability company, as tenant, a memorandum of which Lease Agreement was
recorded in the Office of the Register of the City of New York on _______, 20__
as CRFN: __________ (the "Lease"), hereby elects, pursuant to Paragraph 5(b) of
the Lease, to extend the Term of the Lease with respect to [the
entirety][floor(s) ___] [DELETE AND COMPLETE AS APPLICABLE] of the Leased
Premises as of [INSERT RENEWAL DATE] for a Renewal Term of [INSERT NUMBER OF
YEARS OF APPLICABLE RENEWAL TERM] years commencing on such Renewal Date.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Lease.
TENANT
a _________________________
By:
------------------------------------
Name:
Title:
EXHIBIT F TO LEASE AGREEMENT FOR NEW YORK TIMES - 1
County of New York )
)ss.:
State of New York )
On the_________________day of__________________________________in the
year_________________________before me, the undersigned, a notary public in and
for said state, personally appeared _____________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
EXHIBIT F TO LEASE AGREEMENT FOR NEW YORK TIMES - 2
EXHIBIT G
FORM OF LANDLORD'S NON-DISTURBANCE AGREEMENT
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ___ day of ________, 20__ (this
"Agreement") among __________________, a ________________, having an office at
_______________ ("Landlord"), _____________________, a ___________________,
having an office at ________________________ ("Tenant") and ________________, a
________________________, having an office at _______________ ("Subtenant").
WITNESSETH:
WHEREAS, Landlord is the present owner and holder of the lessee's
interest under a certain lease more particularly described in Exhibit "A-1",
including an interest in certain leasehold condominium units in The New York
Times Building Condominium more particularly described on Exhibit "A-2", located
in the building having a street address of 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(hereinafter all or any portion of the foregoing leasehold interest subject to
the lien of the Mortgage shall be referred to as the "Property"); and
WHEREAS, Tenant is the holder of a subleasehold estate in the Property
(the "Premises") under and pursuant to the provisions of a certain Lease
Agreement dated as of March ___, 2009, between Landlord and Tenant (such Lease
Agreement, including all exhibits and schedules attached thereto, as the same
may be amended, modified, extended, renewed, supplemented or replaced, being
hereinafter referred to as the "Xxxxxxxxx"); and
WHEREAS, Subtenant is the subtenant under that certain sublease (the
"Sublease") dated ________________________, between Tenant and Subtenant
covering ________________________ (the "Subleased Premises"):
WHEREAS, Subtenant has requested that Landlord agree not to terminate
the Sublease nor disturb Subtenant's occupancy under the Sublease in the event
the Xxxxxxxxx shall terminate or be terminated by reason of Tenant's default;
and
WHEREAS, Landlord is willing to enter into such an agreement on the
terms and conditions contained herein;
NOW, THEREFORE, in consideration of Ten Dollars and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, Landlord and Subtenant agree as follows:
1. Subordination. Subtenant agrees that the Sublease and all of the
terms, covenants and provisions thereof and all rights, remedies and options of
Subtenant thereunder are and shall at all times continue to be fully subject and
subordinate in all respects to the Xxxxxxxxx and any Mortgage (as such term is
defined in the Xxxxxxxxx), and to all advances heretofore made, and hereafter to
be made, pursuant thereto, as the same may be renewed, amended, supplemented,
extended or replaced. This provision shall be self-operative and no further
instrument shall be required to confirm or perfect such subordination. However,
at the request of Landlord, Subtenant shall, at its own expense, execute and
deliver such other documents and take such other action as Landlord reasonably
requests to perfect, confirm or effectuate such subordination.
2. Nondisturbance. Landlord agrees that (a) neither the rights,
possession nor enjoyment of Subtenant under, and in accordance with the terms
of, the Sublease shall be terminated or disturbed by Landlord by reason of the
termination of the Xxxxxxxxx or any termination action or proceeding instituted
by the Landlord under or in connection with the Xxxxxxxxx (each, an "Attornment
Event"), and (b) Subtenant shall not be named or joined as a party therein, and
the exercise by Landlord of any such Attornemnt Event shall be made subject to
all rights of Subtenant under the Sublease, provided that (i) at the time of the
commencement of any Attornment Event or at the time of the conclusion of any
such Attornment Event, (x) the Sublease shall be in full force and effect and
(y) Subtenant shall not be in default (after all applicable notices have been
given and all applicable grace periods have expired in accordance with the terms
of the Sublease) under any of the terms, covenants or conditions of the
Sublease, and (ii) Subtenant may be so named or joined in any such Attornment
Event if required by law, so long as (1) in connection with such naming and
joining of Subtenant, Landlord will not seek to terminate or extinguish
Subtenant's rights under this Agreement or the Sublease, except as specifically
set forth elsewhere in this Agreement, and (2) none of Subtenant's rights under
this Agreement or the Sublease shall be impaired or otherwise affected by such
naming or joining of Subtenant in any material respect. The immediately
preceding sentence shall in no way be deemed a waiver of Landlord's rights to
enforce any default or remedy against Tenant under the Xxxxxxxxx pursuant to the
terms of the Xxxxxxxxx.
3. Non-Liability. Upon the occurrence of an Attornment Event and the
termination or surrender of the Xxxxxxxxx, the Sublease shall, notwithstanding
any provision to the contrary therein contained, continue in full force and
effect as a direct lease between Landlord and Subtenant, provided that in no
event shall Landlord or its successors or assigns be:
(a) liable for any previous act, omission, or negligence of Tenant as
sublandlord or any prior sublandlord or the failure or default of any prior
sublandlord (including, without limitation, Tenant) to comply with any of its
obligations under the Sublease except to the extent such act, omission,
negligence, failure or default occurs after the date that Landlord succeeds to
the interest of Tenant under the Sublease and Landlord shall have received
written notice of such act, omission, negligence, failure or default and has had
a reasonable opportunity to cure the same, all subject to the terms and
conditions of the Sublease;
4
(b) subject to any defenses, offsets or counterclaims that Subtenant
may have against any prior sublandlord (including, without limitation, Tenant)
which accrued prior to the date upon which Landlord succeeds to the interest of
Tenant under the Sublease in connection with a default by Tenant thereunder;
(c) bound by any action listed in Section 4 below made without
Landlord's prior written consent
(d) bound by any prepayment of base rent, additional rent, operating
expenses or any other charges due under the Sublease more than one (1) month in
advance of the due date therefor except for prepayments expressly approved in
writing by the Landlord;
(e) liable for any free rent or any any brokerage commissions or
costs, expenses or liabilities in connection therewith; or
(f) liable for any monies owing by or on deposit with Tenant to the
credit of Subtenant except to the extent received by the Landlord; or
(g) liable for the performance of any work or installations, or for
any contribution, free rent or allowance for the same, required to be performed
or made available by Tenant or any other prior sublandlord under the Sublease.
4. No Changes to Sublease. The Sublease constitutes an inducement to
Landlord to enter into this Agreement. Consequently, Subtenant shall not,
without obtaining the prior written consent of Landlord, (i) enter into any
agreement modifying, amending, extending, renewing, terminating or surrendering
the Sublease, (ii) prepay any of the base rent, additional rent, operating
expenses or any other charges due under the Sublease for more than one (1) month
in advance of the due dates thereof, (iii) voluntarily surrender the premises
demised under the Sublease, in whole or in part, or cancel or terminate the
Sublease, (iv) assign the Sublease or sublet the Subleased Premises or any part
thereof or (v) subordinate or permit the subordination of the Sublease to any
lien other than the Mortgage; and any such amendment, modification, termination,
cancellation, prepayment, voluntary surrender, assignment or subletting, without
Landlord's prior consent, shall not be binding upon Landlord.
5. Attornment Upon the occurrence of an Attornment Event and the
termination or surrender of the Xxxxxxxxx, Subtenant shall be bound to Landlord
under all of the terms, covenants and conditions of the Sublease (except as set
forth in paragraph 3) for the balance of the term thereof and of any extensions
or renewals thereof that are effected in accordance with the Sublease, with the
same effect as if Landlord were the sublandlord under the Sublease, such
attornment to be effective as of the date such Attornment Event and the
termination or surrender of the Xxxxxxxxx occurs, without the execution of any
further agreement. However, Subtenant agrees, at its own expense, to execute and
deliver, at any time and from time to time upon request of Landlord, any
agreement that may reasonably be necessary or appropriate to evidence such
attornment and the modification of the Sublease pursuant to paragraph 3 hereof,
or, at Landlord's election, a direct lease with Landlord upon all of the terms
of the Sublease as modified pursuant to paragraph 3 hereof. Failure of Subtenant
to so execute any such an agreement
5
shall not vitiate such attornment. Subtenant waives the provisions of any
statute or rule of law now or hereafter in effect that may give it any right or
election to terminate or otherwise adversely affect the Sublease or the
obligations of Subtenant thereunder by reason of any proceeding in connection
with such Attornment Event or the termination or surrender of the Xxxxxxxxx.
6. Notice of Default.
(a) Subtenant will promptly deliver to Landlord notice of any default
of Tenant or other circumstance that would entitle Subtenant to cancel the
Sublease or to xxxxx the rent or additional rent or any other amounts payable
thereunder, and agrees that notwithstanding any provision of the Sublease, no
cancellation thereof or abatement shall be effective unless Subtenant shall have
sent Landlord a notice in the manner herein provided and Landlord has failed to
cure the default giving rise to such right to cancellation or abatement within
the time period as Tenant may be entitled to under the Sublease plus thirty (30)
days after receipt of such notice or if such default cannot be cured within that
time, then such additional time as may be necessary if, within such thirty (30)
days, Landlord has notified Tenant of its intention to cure such default and has
commenced and is diligently pursuing the remedies necessary to cure such default
(including, without limitation, commencement of foreclosure proceedings or
eviction proceedings, if necessary, to effect such cure). No cure of Tenant's
default by Landlord shall be deemed an assumption of Tenant's other obligations
under the Sublease and no right of Landlord hereunder to receive any notice or
to cure any default shall be deemed to impose any obligation on Landlord to cure
(or attempt to cure) any such default.
(b) Subtenant agrees, from time to time, to state in writing to
Landlord, upon request whether or not, to the best of Subtenant's actual
knowledge, any default on the part of Tenant exists under the Sublease and the
nature of any such default.
7. Notices. All notices, consents, approvals, demands and other
communications ("notices") hereunder shall be in writing and shall be delivered
in person, sent by Federal Express or overnight courier or sent by registered or
certified mail, return receipt requested, to any party hereto at its address
below stated or at such other address and to such other persons (but not more
than three at any one time) of which it shall have notified the party giving
such notice in writing. Notices to Landlord shall be addressed to Landlord at
____________________________, with a copy to ____________________________, and a
copy of all notices given to Landlord shall simultaneously be sent to its
counsel, ____________________________. Notices to Tenant shall be addressed to
Tenant at _______________________________, and a copy of all notices given to
Tenant shall simultaneously be sent to its counsel,
__________________________. Notices to Subtenant shall be addressed to
Subtenant at ______________________________, and a copy of all notices given to
Subtenant shall simultaneously be sent to its counsel,
__________________________. Any notice sent by such registered or certified
mail shall be deemed to have been served when the addressee either actually
receives such notice or refuses to accept delivery thereof. Any notice sent by
Federal Express or overnight courier shall be deemed to have been served two (2)
business days after the date it is sent. Any notice sent by personal
6
delivery shall be deemed to have been served on the date of such delivery. Any
notice shall be deemed effective and deemed given by Landlord or Tenant, as the
case may be, if signed and sent by its respective counsel. Subtenant shall
promptly send Landlord copies of any termination or default notice given by
Subtenant under the Sublease.
8. Payment of Rent After Attornment Event Upon the giving by Landlord
to Subtenant of written notice stating that an Event of Default has occurred
under the Xxxxxxxxx and requesting direct payment of rent, Subtenant shall
thereafter pay to Landlord, or as otherwise directed by Landlord, all rent and
other charges coming due under the Sublease. Tenant agrees that Subtenant shall
have the right to rely upon such notice and request from Landlord without any
obligation to inquire as whether an Event of Default actually has occurred and
notwithstanding any notice from or claim of Tenant to the contrary, and Tenant
shall have no right or claim against Subtenant for any such amounts so paid by
Subtenant to Landlord after such notice to Subtenant. Subtenant further agrees
that Landlord shall not, by reason of the acceptance of any rent under this
Section 8, be subject to any obligation, duty or liability under the Sublease,
except to the extent applicable in this Agreement.
9. Limitations on Landlord's Liability. In no event shall the
Landlord, nor any heir, legal representative, successor, or assignee of the
Landlord have any personal liability for the obligations of Landlord under the
Xxxxxxxxx and should the Landlord succeed to the interests of the Tenant under
the Sublease, Subtenant shall look only to the estate and property of Landlord
in the Subleased Premises for the satisfaction of Subtenant's remedies for the
collection of a judgment (or other judicial process) requiring the payment of
money in the event of any default by Landlord as sublandlord under the Sublease,
and no other property or assets of Landlord shall be subject to levy, execution
or other enforcement procedure for the satisfaction of Subtenant's remedies
under or with respect to the Sublease.
10. Miscellaneous. This Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto and
may not be modified or terminated orally. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and construed in
accordance with the law of the State of New York. This Agreement may be signed
in counterparts.
11. Entire Agreement. This Agreement constitutes the final expression
of the entire agreement of the parties with respect to the subject matter
hereof.
12. WAIVER OF TRIAL BY JURY. LANDLORD, TENANT AND SUBTENANT HEREBY
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT.
13. Representations. Subtenant represents and warrants to Landlord
that as of the date hereof (i) Subtenant is the owner and holder of the
subtenant's interest under the Sublease; (ii) the Sublease (including exhibits
and schedules thereto) is a complete statement of the agreement between
Subtenant and Tenant with respect to the subleasing of the Subleased Premises,
has not been modified or amended; (iii) the Sublease is in full force and
effect; (iv) to
7
the best of Subtenant's actual knowledge, neither Tenant nor Subtenant is in
default under any of the terms, covenants or provisions of the Sublease; (v) no
rents, additional rents or other sums payable under the Sublease have been paid
for more than one (1) month in advance of the due dates thereof; (vi) to the
best of Subtenant's actual knowledge, there are no present offsets or defenses
to the payment of the rents, additional rents, or other sums payable under the
Sublease; and (vii) there is no work to be performed by Tenant in the Subleased
Premises and thee in are no construction allowances, free rent period or other
contribution to be made by the Tenant under the terms of the Sublease.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LANDLORD:
By:
------------------------------------
Name:
Title:
SUBTENANT
By:
------------------------------------
Name:
Title:
TENANT
By:
------------------------------------
Name:
Title:
0
Xxxxxx xx Xxx Xxxx )
)ss.:
State of New York )
On the_________________day of__________________________________in the
year_________________________before me, the undersigned, a notary public in and
for said state, personally appeared __________________________, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
Notary Public
County of New York )
)ss.:
State of New York )
On the_________________day of__________________________________in the
year_________________________before me, the undersigned, a notary public in and
for said state, personally appeared __________________________, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individuals) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signatures) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
Notary Public
County of New York )
)ss.:
State of New York )
On the_________________day of__________________________________in the year.
before me, the undersigned, a - notary public in and for said state, personally
appeared __________________________, personally . known to me or proved to me on
the basis of satisfactory evidence to be the individuals) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature) on the instrument, the individuals), or die person upon behalf of
which the individual(s) acted, executed the instrument.
Notary Public
EXHIBIT G TO LEASE AGREEMENT FOR NEW YORK TIMES
EXHIBIT A-1
SEVERANCE LEASE
Agreement of Sublease dated as of December 12, 2001 between The New York Times
Building LLC, a New York limited liability company ("NYTB"), as landlord, and
NYT Real Estate Company LLC, a New York limited liability company, a memorandum
of which was recorded in the Office of the City Register of the City of New York
on October 24, 2003 as CRFN 2003000433125, as amended by NYTB's interest in
which Agreement of Sublease as landlord was assigned by Assignment and
Assumption Agreement dated as of August 15, 2006 to 42nd St. Development
Project, Inc. ("42DP"), as landlord, and recorded in the Office of the City
Register of the City of New York on November 20, 2006 as CRFN 2006000644732,
which Agreement of Sublease was amended pursuant to First Amendment to Agreement
of Sublease (NYT) dated as of August 15, 2006 between 42DP and Mortgagor and
recorded in the Office of the City Register of the City of New York on November
20, 2006 as CRFN 2006000644735 and by Second Amendment to Agreement of Sublease
(NYT) dated as of January 29, 2007 between 42DP and Mortgagor and recorded in
the Office of the City Register of the City of New York on February 22, 2007 as
CRFN 2007000100157 and by Third Amendment to Agreement of Sublease (NYT) dated
on or about the date of this Mortgage between 42DP and Mortgagor and intended to
be recorded in the Office of the City Register of the City of New York (such
Agreement of Sublease, as so assigned and amended, the "Severance Lease").
2
EXHIBIT A-2
LEGAL DESCRIPTION
The Condominium Units (in the BUILDING located at and known as THE NEW YORK
TIMES BUILDING CONDOMINIUM and by Street Number 000-000 0XX XXXXXX, XXX XXXX,
XXX XXXX), designated and described as Units (SEE SCHEDULE ANNEXED) (hereinafter
called the "UNITS") in the Declaration Establishing a Plan of Leasehold
Condominium Ownership of Premises made by The New York Times Building LLC, as
Declarant, under the Condominium Act of The State of New York (Article 9-B of
the Real Property Law of the State of New York), dated as of August 4, 2006 and
recorded August 15, 2006 in the Office of the Register The City of New York (the
"REGISTER"), as CRFN 2006000460293, as amended by First Amendment to Declaration
dated January 29, 2007 and recorded as CRFN 2007000075106, and Second Amendment
to Declaration dated October 11, 2007 and recorded as CRFN 2008000008734, and
Third Amendment to Declaration dated March 6, 2009 and recorded as CRFN
2009000072453, and Fourth Amendment to Declaration dated March 6, 2009 to be
recorded with the Register (which Declaration, and any further amendments
thereto, are hereinafter collectively called the "DECLARATION"), establishing a
plan for leasehold condominium ownership of said Building and the land upon
which the same is erected (hereinafter sometimes collectively called the
"PROPERTY") and also designated and described as Tax Lots No. (SEE SCHEDULE
ANNEXED), Block 1012 Section 4, Borough of MANHATTAN on the Tax Map of the Real
Property Assessment Department of the City of New York and on the floor plans of
said Building certified by Xxxxxx Xxxxxx, approved by the Real Property
Assessment Bureau on August 13, 2006 and filed as Condominium Plan No. 1595 on
August 15, 2006 in the aforesaid Register's Office.
The land upon which the Building containing the Units is erected as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, bounded
and described as follows:
BEGINNING at the corner formed by the intersection of the northerly line of Xxxx
00xx Xxxxxx with the easterly line of 8th Avenue,
RUNNING THENCE northerly along said easterly line of 8th Avenue, 197 feet 6
inches to the corner formed by the intersection of the easterly side of 0xx
Xxxxxx with the southerly line of West 00xx Xxxxxx;
THENCE easterly along said southerly line of West 41st Street, 400 feet;
THENCE southerly and parallel to said easterly line of 8th Avenue, 197 feet 6
inches to the northerly line of Xxxx 00xx Xxxxxx;
THENCE westerly along said northerly line of West 40th Street, 400 feet to the
point or place of BEGINNING,
3
TOGETHER with an undivided percentage interest (SEE SCHEDULE ANNEXED) in the
Common Elements and the NYTC Limited Common Elements (as such terms are defined
in the Declaration) of the New York Times Building Condominium, recorded as CRFN
2006000460293 as amended.
4
SCHEDULE OF UNITS
PERCENTAGE INTEREST
UNIT DESIGNATION TAX LOT IN COMMON ELEMENTS
---------------- ------- -------------------
0-A 1001 0.6726%
1- A 1003 2.0809%
2-A 1009 4.7683%
3-A 1010 4.7719%
4-A 1011 4.2717%
5-A 1012 1.6453%
6-A 1013 1.7431%
7-A 1014 1.7431%
8-A 1015 1.7431%
9-A 1016 1.7431%
10-A 1017 1.7431%
11-A 1018 1.7431%
12-A 1019 1.7431%
13-A 1020 1.7431%
14-A 1021 1.7546%
15-A 1022 1.3954%
16-A 1023 1.7591%
17-A 1024 1.7312%
18-A 1025 1.7819%
19-A 1026 1.7819%
20-A 1027 1.7819%
28-A 1035 0.4470%
5
EXHIBIT H
INTENTIONALLY OMITTED
EXHIBIT I
FORM OF BENEFICIAL ASSIGNMENT
ASSIGNMENT AND ASSUMPTION OF SUBLEASE
This ASSIGNMENT AND ASSUMPTION OF SEVERANCE LEASE (the "Assignment") dated
as of ___________ ___, 20__ (the "Effective Date"), by and between NYT REAL
ESTATE COMPANY LLC, a New York limited liability company ("Assignor"), having an
office address at c/o The New York Times Company, 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, and 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited
partnership ("Assignee"), having an office address at c/o W.P. Xxxxx & Co. LLC,
00 Xxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
WITNESSETH:
WHEREAS, The New York Times Building LLC, a New York limited liability
company ("NYTB"), and 42nd St. Development Project, Inc. ("42DP") entered into
that certain Agreement of Lease dated December 12, 2001, as tenant and landlord,
respectively, (the "Ground Lease"), with respect to that certain real property
located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, as more particularly
described in Exhibit A attached hereto and made a part hereof and all
improvements then or thereafter located thereon (collectively, the "Property");
WHEREAS, NYTB and Assignor entered into that certain Agreement of Sublease
dated December 12, 2001, as landlord and tenant, respectively, (the "Original
NYT Severance Lease"), a memorandum of which was recorded on October 24, 2003,
in the Office of the City Register, New York County, as CRFN # ___________,
which Original NYT Severance Lease was amended pursuant to First Amendment to
Agreement of Sublease (NYT) dated August 15, 2006, between Landlord and Tenant
and recorded in the Office of the City Register of the City of New York on
November 20, 2006, as CRFN # 2006000644735 and by Second Amendment to Agreement
of Sublease (NYT) dated January 29, 2007, between Landlord and Tenant and
recorded in the Office of the City Register of the City of New York on February
22, 2007, as CRFN # 2007000100157 and by Third Amendment to Agreement of
Sublease (NYT) dated as of March ___, 2009, between Landlord and Tenant and
recorded in the Office of the City Register of the City of New York on March
___, 2009, as CRFN # _ (Original NYT Severance Lease, as so amended, the "NYT
Sublease");
WHEREAS, NYTB submitted the Ground Lease to a leasehold condominium
structure pursuant to Article 9-B of the Real Property Law of the State of New
York and the NYT Sublease covers the condominium units more particularly
described on Exhibit B attached hereto and made a part hereof;
WHEREAS, pursuant to NYTB's submission of the Ground Lease to a leasehold
condominium structure, NYTB entered into that certain Assignment and Assumption
Agreement with 42DP dated August 15, 2006, whereby NYTB assigned all of its
right, title and interest in and to the Ground Lease (as lessee) and the NYT
Sublease (as lessor) to 42DP;
-7-
WHEREAS, Assignor and Assignee entered into a financing lease transaction
pursuant to that certain Lease Agreement by and between Assignor, as tenant, and
Assignee, as landlord, dated March __, 2009, for the Property, which contained a
purchase option for $250,000,000.00 ("Purchase Option"), exercisable on the
tenth (10th) anniversary of the commencement date thereof ("WPC Lease");
WHEREAS, pursuant to such financing lease transaction, Assignor and
Assignee entered into that certain Assignment and Assumption of Sublease dated
March ___, 2009 ("Original Assignment"), which served as collateral security for
Assignor's obligations under the WPC Lease;
WHEREAS, Assignor failed to exercise timely the Purchase Option and the
Option Lapse Date has occurred under the WPC Lease;
WHEREAS, pursuant to the terms of the WPC Lease, upon the occurrence of the
Option Lapse Date, Assignor is obligated to deliver the Beneficial Transfer
Documents to Assignee, of which this Assignment constitutes a part;
WHEREAS, in conformity with the terms of the WPC Lease, Assignor now
desires to make a present and absolute assignment of all of its right, title and
beneficial interest in and to the NYT Sublease to Assignee, and not merely as
part of a financing lease transaction; and
WHEREAS, Assignee desires to assume and accept all such right, title and
beneficial interest.
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto hereby covenant and agree as follows:
1. Capitalized terms used herein without definition shall have the
respective meanings ascribed thereto in the WPC Lease. References herein to any
document or instrument shall refer to the same as it may be amended, modified,
supplemented, extended, renewed or assigned from time to time.
2. Assignor hereby presently assigns, grants, bargains, sells and transfers
all of its right, title and beneficial interest in and to the NYT Sublease,
together with any and all amendments, extensions and renewals thereof, and
together with all rights and obligations accrued or to accrue under said NYT
Sublease on and after the Effective Date, to Assignee and its successors and
assigns, TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns,
from the Effective Date, for all the rest of the respective term of the NYT
Sublease.
3. Assignee hereby assumes the duties and obligations and agrees to perform
and comply with all of the covenants and conditions of the NYT Sublease to be
performed or complied with by the tenant thereunder on and after the Effective
Date, as if Assignee originally had executed the NYT Sublease as the tenant
thereunder; provided that, as between Assignor and Assignee, nothing herein
shall limit or alter Assignor's obligation to continue to perform such
obligations pursuant to the terms of the WPC Lease and the Condominium
Documents.
4. Assignor hereby waives any right of redemption by Assignor with respect
to the Property and, to the fullest extent permitted by applicable law, waives
all rights, claims or defenses available to a mortgagor under the any applicable
law of the State of New York,
-8-
including any right to assert that the WPC Lease continues to constitute a
financing lease from and after the Effective Date.
5. Assignor hereby acknowledges and agrees that, from and after the
Effective Date, the WPC Lease constitutes for all purposes a true lease for the
balance of the term of the WPC Lease and Assignor agrees to treat the WPC Lease
as such for all federal, state and local tax and accounting purposes in
accordance with Paragraph 33(b) of the WPC Lease.
6. Assignor, concurrently with the execution and delivery of this
Assignment, has delivered to Assignee: (i) a certified check in an amount equal
to the amount of all New York State and New York City transfer taxes due in
connection with the recording of this Assignment, made payable to or at the
direction of Assignee, (ii) a certified check in an amount equal to all Costs
incurred by Assignee in connection with the transactions contemplated by the
Beneficial Transfer Documents, and (iii) a certified check in an amount equal to
the actual costs to obtain a Leasehold Owners ALTA Policy of Title Insurance in
favor of Assignee with respect to the Property effective as of the date of the
transfer of beneficial title contemplated hereby, subject only to the Permitted
Exceptions and otherwise reasonably satisfactory to Assignee, together with such
other customary affidavits or certificates requested by the applicable land
title insurance company to issue such policy.
7. Assignor indemnifies Assignee from any and all loss, cost, damage,
liability or expense (including, without limitation, reasonable attorneys' fees,
court costs and disbursements) that may be imposed on the Assignee by reason of
any failure by Assignor to perform any of the obligations under the NYT Sublease
arising prior to the Effective Date.
8. Assignee indemnifies Assignor from any and all loss, cost, damage,
liability or expense (including, without limitation, reasonable attorneys' fees,
court costs and disbursements) that may be imposed on the Assignor by reason of
any failure by Assignee to perform any of the obligations under the NYT Sublease
arising from and after the Effective Date; provided that, as between Assignor
and Assignee, nothing herein shall limit or alter Assignor's obligation to
continue to perform such obligations pursuant to the terms of the WPC Lease and
the Condominium Documents.
9. Promptly upon request of the other party, Assignor and Assignee shall
each execute, acknowledge (as appropriate) and deliver to the other such other
assurances and take such other actions as may be reasonably required to carry
out the intent and purpose of this Assignment, provided that neither party shall
incur any material additional cost, expense or obligation in connection with any
act that the other party may request.
10. This Assignment shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns.
11. Nothing expressed or implied in this Assignment is intended, or will be
construed, to confer upon or give any Person other than the parties hereto, and
their successors or permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Assignment, or result in such Person
being deemed a third-party beneficiary of this Assignment.
-9-
12. This Assignment shall be governed by, and construed in accordance with,
the laws of the State of New York.
13. This Assignment may be executed in counterparts, each of which shall be
an original and all of which together shall constitute but one (1) and the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-10-
ASSIGNOR:
NYT REAL ESTATE COMPANY LLC, a New
York limited liability company
By:
------------------------------------
Name:
Title:
ASSIGNEE:
620 EIGHTH NYT (NY) LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: 620 EIGHTH GP NYT (NY) LLC, a
Delaware limited liability company,
its general partner
By: CPA:17 LIMITED PARTNERSHIP, a
Delaware limited partnership,
its sole member
By: CORPORATE PROPERTY
ASSOCIATES 17 - GLOBAL INCORPORATED,
a Maryland corporation, its general
partner
By:
------------------------------------
Name:
Title:
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the ____ day of ____________ in the year 2009, before me, the undersigned, a
Notary Public in and for said state, personally appeared ___________________
personally known to me or proved to me on the basis or satisfactory evidence to
be the person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
----------------------------------------
Notary Public
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the ____ day of ____________ in the year 2009, before me, the undersigned, a
Notary Public in and for said state, personally appeared
________________________ personally known to me or proved to me on the basis or
satisfactory evidence to be the person(s) whose name(s) is (are) subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
----------------------------------------
Notary Public
-12-
EXHIBIT A
LEGAL DESCRIPTION
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, bounded
and described as follows:
BEGINNING at the corner formed by the intersection of the northerly line of Xxxx
00xx Xxxxxx with the easterly line of 0xx Xxxxxx;
RUNNING THENCE northerly along said easterly line of 8th Avenue, 197 feet 6
inches to the corner formed by the intersection of the easterly side of 0xx
Xxxxxx with the southerly line of West 00xx Xxxxxx;
THENCE easterly along said southerly line of West 41st Street, 400 feet;
THENCE southerly and parallel to said easterly line of 8th Avenue, 197 feet 6
inches to the northerly line of Xxxx 00xx Xxxxxx;
THENCE westerly along said northerly line of West 40th Street, 400 feet to the
point or place of BEGINNING.
-13-
EXHIBIT B
LEGAL DESCRIPTION
The Condominium Units (in the BUILDING located at and known as THE NEW YORK
TIMES BUILDING CONDOMINIUM and by Street Number 000-000 0XX XXXXXX, XXX XXXX,
XXX XXXX), designated and described as Units (SEE SCHEDULE ANNEXED) (hereinafter
called the "UNITS") in the Declaration Establishing a Plan of Leasehold
Condominium Ownership of Premises made by The New York Times Building LLC, as
Declarant, under the Condominium Act of The State of New York (Article 9-B of
the Real Property Law of the State of New York), dated as of August 4, 2006 and
recorded August 15, 2006 in the Office of the Register The City of New York (the
"REGISTER"), as CRFN 2006000460293, as amended by First Amendment to Declaration
dated January 29, 2007 and recorded as CRFN 2007000075106, and Second Amendment
to Declaration dated October 11, 2007 and recorded as CRFN 2008000008734, and
Third Amendment to Declaration dated March 6, 2009 and recorded as CRFN
2009000072453, and Fourth Amendment to Declaration dated March 6, 2009 to be
recorded with the Register (which Declaration, and any further amendments
thereto, are hereinafter collectively called the "DECLARATION"), establishing a
plan for leasehold condominium ownership of said Building and the land upon
which the same is erected (hereinafter sometimes collectively called the
"PROPERTY") and also designated and described as Tax Lots No. (SEE SCHEDULE
ANNEXED), Block 1012 Section 4, Borough of MANHATTAN on the Tax Map of the Real
Property Assessment Department of the City of New York and on the floor plans of
said Building certified by Xxxxxx Xxxxxx, approved by the Real Property
Assessment Bureau on August 13, 2006 and filed as Condominium Plan No. 1595 on
August 15, 2006 in the aforesaid Register's Office.
The land upon which the Building containing the Units is erected as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, bounded
and described as follows:
BEGINNING at the corner formed by the intersection of the northerly line of Xxxx
00xx Xxxxxx with the easterly line of 8th Avenue,
RUNNING THENCE northerly along said easterly line of 8th Avenue, 197 feet 6
inches to the corner formed by the intersection of the easterly side of 0xx
Xxxxxx with the southerly line of West 00xx Xxxxxx;
THENCE easterly along said southerly line of West 41st Street, 400 feet;
THENCE southerly and parallel to said easterly line of 8th Avenue, 197 feet 6
inches to the northerly line of Xxxx 00xx Xxxxxx;
THENCE westerly along said northerly line of West 40th Street, 400 feet to the
point or place of BEGINNING,
-14-
TOGETHER with an undivided percentage interest (SEE SCHEDULE ANNEXED) in the
Common Elements and the NYTC Limited Common Elements (as such terms are defined
in the Declaration) of the New York Times Building Condominium, recorded as CRFN
2006000460293 as amended.
-15-
SCHEDULE OF UNITS
PERCENTAGE INTEREST
UNIT DESIGNATION TAX LOT IN COMMON ELEMENTS
---------------- ------- -------------------
0-A 1001 0.6726%
1-A 1003 2.0809%
2-A 1009 4.7683%
3-A 1010 4.7719%
4-A 1011 4.2717%
5-A 1012 1.6453%
6-A 1013 1.7431%
7-A 1014 1.7431%
8-A 1015 1.7431%
9-A 1016 1.7431%
10-A 1017 1.7431%
11-A 1018 1.7431%
12-A 1019 1.7431%
13-A 1020 1.7431%
14-A 1021 1.7546%
15-A 1022 1.3954%
16-A 1023 1.7591%
17-A 1024 1.7312%
18-A 1025 1.7819%
19-A 1026 1.7819%
20-A 1027 1.7819%
28-A 1035 0.4470%
EXHIBIT H TO LEASE AGREEMENT FOR NEW YORK TIMES
