Exhibit 10.16(d)
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE dated the 14th day of January, 2000 (this
"Third Amendment") by and between LEXREAL ASSOCIATES LIMITED PARTNERSHIP, a New
York limited partnership, as Landlord (the "Landlord") and YOUNG BROADCASTING,
INC., a Delaware corporation, as Tenant (the "Tenant").
WITNESSETH:
Preliminary Statement
WHEREAS, by Lease dated March 29, 1990 ("Original Lease"), Tenant leased
from Lexreal Associates, Landlord's predecessor-in-interest, certain premises
consisting of the forty-seventh (47th) floor of the building known as 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Building"). Such premises are
herein referred to as the "Initial Premises";
WHEREAS, by First Amendment to Lease dated January 14, 1997 ("First
Amendment"), Tenant leased from Landlord certain additional premises consisting
of a portion of the twenty-second (22nd) floor of the Building. Such premises
are referred to herein as the "First Additional Premises" (the Initial Premises
and First Additional Premises are collectively referred to hereinafter as the
"Existing Premises");
WHEREAS, by Second Amendment to Lease dated May 25, 1999 ("Second
Amendment"; collectively the Original Lease, the First Amendment and the Second
Amendment are referred to hereinafter as the "Lease"), Landlord and Tenant
extended the Expiration Date of the Lease Term with respect to the Initial
Premises only from September 30, 2000 to May 31, 2009 (the "Expiration Date");
and
WHEREAS, Landlord and Tenant desire further to expand the size of the
Existing Premises certain office space on the forty-first (41st) floor of the
Building more particularly described on the "Floor Plan With Respect to the
Second Additional Premises" attached hereto (the "Second Additional Premises").
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant confirm and agree as follows:
1. SECOND ADDITIONAL PREMISES; TERM WITH RESPECT TO THE SECOND ADDITIONAL
PREMISES. Landlord hereby leases to Tenant and Tenant leases from Landlord
certain office space located on the 41st floor of the Building, and known as the
Second Additional Premises. Landlord and Tenant agree that the Lease Term with
respect to the Second Additional Premises shall commence on August 1, 2000 (the
"Second Additional Premises Commencement Date"), and shall end on the Expiration
Date, or such earlier date upon which the Lease Term may expire or be terminated
pursuant to any of the conditions of limitation or other provisions of the
Lease, as amended by this Third Amendment, or pursuant to law.
2. CONDITION OF THE SECOND ADDITIONAL PREMISES.
Tenant and Landlord hereby agree that the Second Additional Premises
shall be delivered to Tenant on the Second Additional Premises Commencement Date
in broom clean, "as is" condition. Tenant acknowledges that Landlord makes no
representations or warranties concerning the condition of the Second Additional
Premises and Landlord shall have no obligation to perform any work therein.
Notwithstanding the foregoing, at Tenant's request, Landlord shall repaint the
Second Additional Premises consistent with the existing design of the space.
3. RENT; TENANT'S SHARE; BASE TAXES; BASE OPERATING EXPENSES.
(a) Annual Fixed Rent. Effective as of the Second Additional
Premises Commencement Date, "Exhibit J" to the Lease is amended by substituting
in lieu thereof a new "Exhibit J" as attached hereto.
(b) Tenant's Share. Effective as of the Second Additional Premises
Commencement Date, Tenant's Share shall mean:
(i) 0.77% with respect to the Initial Premises;
(ii) 0.20% with respect to the First Additional Premises; and
(iii) 0.40% with respect to the Second Additional Premises.
(c) Payment of First Month's Rent. Tenant has, simultaneously with
the execution and delivery of this Third Amendment, paid to Landlord an amount
equal to one-twelfth of the Annual Fixed Rent with respect to the Second
Additional Premises, to be applied to the first monthly installment of Annual
Fixed Rent with respect to the Second Additional Premises. Landlord shall hold
the amount paid by Tenant under this subsection in trust until the same is
applied pursuant to this Third Amendment or any other provision of the Lease as
amended by this Third Amendment.
(d) Base Taxes and Base Operating Expenses. Landlord and Tenant
confirm and agree as follows:
(i) Base Taxes shall mean:
(A) The actual Taxes for the Tax Year commencing on July
1, 1999 and ending on June 30, 2000 with respect to the
Initial Premises;
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(B) Ten Million Eight Hundred Forty-Eight Thousand Eight
Hundred Forty-Four and 80/100 Dollars ($10,848,844.80)
with respect to the First Additional Premises; and
(C) The actual Taxes for the Tax Year commencing on July
1, 2000 and ending on June 30, 2001 with respect to the
Second Additional Premises.
(ii) Base Operating Expenses shall mean:
(A) One-half of the sum of (i) the actual Operating
Expenses for the Operating Year commencing on January 1,
1999 and ending on December 31, 1999 and (ii) the actual
Operating Expenses for the Operating Year commencing on
January 1, 2000 and ending on December 31, 2000 with
respect to the Initial Premises;
(B) Six Million Six Hundred Thirteen Thousand Seven
Hundred Forty-Two and 70/100 Dollars ($6,613,742.70)
with respect to the First Additional Premises; and
(C) One-half of the sum of (i) the actual Operating
Expenses for the Operating Year commencing on January 1,
2000 and ending on December 31, 2000 and (ii) the actual
Operating Expenses for the Operating Year commencing on
January 1, 2001 and ending on December 31, 2001 with
respect to the Second Additional Premises.
4. ELECTRICITY. The provisions of Section 16.1 of the Lease shall not
apply to the Second Additional Premises. Effective as of the Second Additional
Premises Commencement Date, solely with respect to the Second Additional
Premises, Tenant shall pay Landlord for electricity in the Second Additional
Premises determined in accordance with the following Section 16.1.2.
Accordingly, a new Section 16.1.2 is added to the Lease at the close of Section
16.1 as follows:
16.1.2 TENANT TO PURCHASE ELECTRICITY; SECOND ADDITIONAL PREMISES.
(a) Tenant shall pay to Landlord, as Additional Rent, Tenant's pro
rata share (based upon the ratio of the leasable square footage of the Second
Additional Premises to the leasable square footage of the 41st floor) of the
entire supply of electric current to the 41st floor of the Building (including
the common areas of such floor). Such payments shall be made within ten (10)
days after receipt of a statement setting forth the actual cost of electricity
and the computation of Tenant's payment.
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(b) On or after the Second Additional Premises Commencement Date,
either Landlord or Tenant may engage a reputable independent electrical
consultant to make a survey of the electric consumption at the Second Additional
Premises and on the balance of the floor. If any such survey discloses that
Tenant's electrical consumption is materially greater or less than the
consumption on the balance of the same floor of the Building, then in lieu of
the payment for electrical consumption based on the ratio of the square footage
of the Second Additional Premises as provided in Section 16.1(a) above, Tenant
shall pay its reasonable proportionate share of consumption on the floor in
accordance with the ratios established by such survey. If Landlord and Tenant
shall not agree on the ratio established by such survey, then the survey shall
be submitted to an additional independent electrical consultant mutually agreed
upon by Landlord and Tenant and the decision of such consultant shall be binding
upon Landlord and Tenant until such time as there shall be a material change in
the use of the Second Additional Premises by Tenant or the use of the balance of
the floor by Landlord or by any occupant of the balance of the floor.
(c) Landlord reserves the right to determine Tenant's electrical
consumption by a check-meter or other reasonable monitoring device, in which
event Tenant shall pay to Landlord as an additional charge, in lieu of the
charges set forth in Sections 16.1(a) and (b) above, for electricity supplied to
the Second Additional Premises an amount equal to the Average Rate (as
hereinafter defined) multiplied by the number of kilowatt-hours of electricity
used to serve the Second Additional Premises (including the proportionate share
of the HVAC units on the floor serving the Second Additional Premises) during
the period for which such payment is being made. Such payments shall be made
within ten (10) days after receipt of a statement setting forth the number of
kilowatt-hours used in the Second Additional Premises during such period, the
Average Rate, and the computation of Tenant's payment. Landlord shall advise
Tenant in advance of the time Landlord will be reading Tenant's meter(s), and
Tenant or its representative shall have the right to accompany Landlord's
representative for the purpose of verifying Landlord's reading. For purposes
hereof, the term "Average Rate" shall mean the average cost to Landlord of
supplying one (1) kilowatt-hour of electricity to the floor on which the Second
Additional Premises are located, and such Rate shall be determined by dividing
(A) the electric xxxx for the floor on which the Second Additional Premises are
located for the period(s) covered by Tenant's payment by (B) the number of
kilowatt-hours of electricity supplied to such floor during such period.
5. FLOOR PLANS. Effective as of the Second Additional Premises
Commencement Date, "Exhibit B" to the Lease is hereby amended by adding thereto
the "Floor Plan With Respect to the Second Additional Premises" attached
thereto.
6. ADDITIONAL CONDITION ON SUBLETTING THE SECOND ADDITIONAL PREMISES. In
addition to all of the conditions and restrictions contained in Article 13 of
the Lease, in the event of a permitted subletting of the Second Additional
Premises, in no event shall there be more than one occupant (including Tenant)
in the Second Additional Premises.
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7. BROKERS. Tenant warrants and represents that Tenant has not dealt with
any broker in connection with the consummation of this Third Amendment other
than GVA Xxxxxxxx Real Estate Co., Inc.; and in the event any claim is made
against Landlord by any other broker or agent alleging dealings with Tenant,
Tenant shall defend Landlord against such claim, using counsel approved by
Landlord, such approval not to be unreasonably withheld, and save harmless and
indemnify Landlord on account of any loss, cost, damage and expense (including,
without limitation, attorneys' fees and disbursement) which may be suffered or
incurred by Landlord by reason of such claim. Landlord agrees that it shall be
solely responsible for the payment of any brokerage commission or fee which may
be due to GVA Xxxxxxxx Real Estate Co., Inc.
8. DEFINITIONS. All capitalized terms used herein shall have the same
meaning as set forth in the Lease unless specifically otherwise provided herein.
9. EFFECT OF AMENDMENT. Except as set forth herein, the Lease shall remain
unchanged and in full force and effect. All references to the "Lease" shall be
deemed to be references to the Lease as amended by this Third Amendment, and all
references to the "Premises" shall include the "Second Additional Premises".
Signatures on next page.
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EXECUTED in one or more counterparts by persons or officers hereunto duly
authorized as of the date and year first above written.
WITNESS: LANDLORD:
LEXREAL ASSOCIATES LIMITED
PARTNERSHIP
By: Boston Properties, LLC, its General Partner
By: Boston Properties Limited
Partnership, its Manager
By: Boston Properties, Inc.
Its General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Senior Vice President
TENANT:
YOUNG BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Exec. V.P./CFO
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FLOOR PLAN WITH RESPECT TO THE SECOND ADDITIONAL PREMISES
(As added to the Lease by Third Amendment to Lease)
EXHIBIT J
SCHEDULE OF ANNUAL FIXED RENT
(As amended pursuant to Third Amendment to Lease)
INITIAL PREMISES
(a) From the end of the period provided for in Section 5.5 subpart (a) of the
Lease through the day preceding the fifth (5th) anniversary of the
Commencement Date, an Annual Fixed Rent of Four Hundred Thirty-Three
Thousand Two Hundred and no/100 Dollars ($433,200.00);
(b) From the fifth (5th) anniversary of the Commencement Date through the
Expiration Date, an Annual Fixed Rent of Four Hundred Sixty-Three Thousand
Six Hundred and no/100 Dollars ($463,600.00);
(c) From June 1, 1999 through May 31, 2004, an Annual Fixed Rent of Four
Hundred Eighty-Six Thousand Four Hundred and no/l00 Dollars ($486,400.00);
and
(d) From June 1, 2004 through the Expiration Date, an Annual Fixed Rent of
Five Hundred Thirty-Two Thousand and no/100 Dollars ($532,000.00).
FIRST ADDITIONAL PREMISES
From the First Additional Premises Commencement Date through the First
Additional Premises Expiration Date, an Annual Fixed Rent of Seventy-Seven
Thousand Eight Hundred Forty and no/100 Dollars ($77,840.00).
SECOND ADDITIONAL PREMISES
(a) From the Second Additional Premises Commencement Date through July 31,
2005, an Annual Fixed Rent of Two Hundred Sixty-Six Thousand Four Hundred
and Twenty-Four and no/l00 Dollars ($266,424.00).
(b) From August 1, 2005 through the Expiration Date, an Annual Fixed Rent of
Two Hundred Eighty-Nine Thousand Nine Hundred Thirty-Two and no/100
Dollars ($289,932.00).
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SPACE PLAN - 41ST FLOOR
[OMITTED]
