Exhibit 10.22
AGREEMENT OF LEASE
BY AND BETWEEN
42ND ST. DEVELOPMENT PROJECT, INC.,
LANDLORD,
AND
THE NEW YORK TIMES BUILDING LLC,
TENANT
DATED AS OF: DECEMBER 12, 2001
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS; CONSTRUCTION OF TERMS
Section 1.1 Definitions .................................................. 2
Section 1.2 Rules of Construction ........................................ 33
Section 1.3 Captions/Table of Contents ................................... 34
ARTICLE II
LEASE OF PROPERTY; TERM OF LEASE
Section 2.1 Demise of Property; Term ..................................... 35
Section 2.2 Condition of Property ........................................ 37
Section 2.3 Waiver of Right to Rescind ................................... 37
ARTICLE III
CHARGES AND FEES
Section 3.1 PILOT ........................................................ 38
Section 3.2 Retail Space Percentage Rent ................................. 41
Section 3.3 Sales Tax Savings; PILOST .................................... 43
Section 3.4 Exemption from Mortgage Recording Tax; PILOMRT ............... 45
Section 3.5 Theater Surcharge ............................................ 46
Section 3.6 Administrative Fee ........................................... 47
Section 3.7 Prorations; Overdue Amounts .................................. 47
Section 3.8 No Joint Venture ............................................. 48
Section 3.9 All Charges Treated as Rent .................................. 48
Section 3.10 Payments ..................................................... 48
Section 3.11 Net Lease .................................................... 48
Section 3.12 No Offset .................................................... 48
Section 3.13 Books and Records ............................................ 49
Section 3.14 Illegality ................................................... 50
Section 3.15 Administrative Code Section 11-208.1 ......................... 51
Section 3.16 Survival ..................................................... 51
Section 3.17 Existing Violations .......................................... 51
Section 3.18 End of NYTC Benefits ......................................... 51
ARTICLE IV
IMPOSITIONS
Section 4.1 Impositions .................................................. 52
Section 4.2 Payment ...................................................... 52
Section 4.3 Right to Contest ............................................. 52
ARTICLE V
PURCHASE OPTION
Section 5.1 Purchase Option ............................................... 55
Section 5.2 Casualty to, or Condemnation of, the Property ................. 57
Section 5.3 Termination of Right to Purchase .............................. 57
Section 5.4 Survival of Certain Obligations ............................... 57
ARTICLE VI
CONSTRUCTION OF THE PROJECT
Section 6.1 Construction of the Project .................................. 58
Section 6.2 Plans and Specifications ..................................... 63
Section 6.3 Performance of Construction Work ............................. 66
Section 6.4 Use of Plans and Specifications .............................. 70
Section 6.5 Conditions Precedent to Commencement of Demolition, Asbestos
Removal and Lead Abatement ................................... 71
Section 6.6 Construction of Tenant's Subway Improvements ................. 72
Section 6.7 Final Completion; Permanent Certificate of Occupancy ......... 72
Section 6.8 Construction Agreements ...................................... 73
Section 6.9 Construction Sign ............................................ 73
Section 6.10 Project Area ................................................. 73
Section 6.11 Title to Materials ........................................... 74
Section 6.12 Nonadverse Structural Effect ................................. 74
Section 6.13 Arbitration .................................................. 74
ARTICLE VII
USE AND MAINTENANCE OF THE PROPERTY
Section 7.1 Permitted Use ................................................ 75
Section 7.2 Restrictions on Use .......................................... 75
Section 7.3 Interim and Long-Term Maintenance Obligations ................ 75
Section 7.4 Compliance with Legal Requirements ........................... 78
Section 7.5 No Waste ..................................................... 79
Section 7.6 Right of Entry ............................................... 79
Section 7.7 Utilities; Services; No Landlord Responsibility .............. 79
Section 7.8 Environmental ................................................ 80
Section 7.9 Equitable Relief ............................................. 80
Section 7.10 Windows ...................................................... 80
Section 7.11 Adverse Possession ........................................... 81
Section 7.12 Pre-Possession Obligations ................................... 81
ARTICLE VIII
REPAIRS
Section 8.1 Repairs ....................................................... 82
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ARTICLE IX
ALTERATIONS
Section 9.1 Requirements for Alterations ................................. 83
Section 9.2 Major Alterations ............................................ 83
Section 9.3 Reimbursement of Expenses of Review .......................... 84
Section 9.4 Disputes ..................................................... 85
ARTICLE X
INSURANCE
Section 10.1 Insurance .................................................... 86
Section 10.2 Requirements for Policies .................................... 88
Section 10.3 Waiver of Subrogation ........................................ 88
Section 10.4 Delivery of Policies ......................................... 89
Section 10.5 Separate Insurance ........................................... 89
Section 10.6 Cooperation; Adjustment ...................................... 89
Section 10.7 Approval by Landlord ......................................... 90
Section 10.8 Depositary ................................................... 90
Section 10.9 Security for Commercial Property Insurance Premium ........... 90
ARTICLE XI
DAMAGE AND DESTRUCTION
Section 11.1 Damage and Destruction ....................................... 92
Section 11.2 Restoration Funds ............................................ 94
Section 11.3 Conditions Precedent to Disbursement ......................... 95
Section 11.4 Section 227 of Real Property Law ............................. 96
Section 11.5 Additional Requirements for Restoration ...................... 96
Section 11.6 Effect of Casualty on this Lease ............................. 96
ARTICLE XII
CONDEMNATION
Section 12.1 Condemnation ................................................. 97
Section 12.2 Date of Taking ............................................... 97
Section 12.3 Minor Taking; Condemnation Restoration ....................... 97
Section 12.4 Additional Restoration Requirements .......................... 99
Section 12.5 Temporary Taking ............................................. 99
Section 12.6 Right to Compensation ........................................ 99
Section 12.7 Settlement; Compromise ....................................... 99
ARTICLE XIII
ASSIGNMENT, SUBLETTING AND TRANSFER
Section 13.1 Transfers Generally .......................................... 100
Section 13.2 Subleasing ................................................... 102
Section 13.3 Assignments .................................................. 106
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Section 13.4 Collect Charges from Assignee, Subtenant .................... 106
Section 13.5 No Relief ................................................... 107
Section 13.6 Consent ..................................................... 107
Section 13.7 Costs and Expenses .......................................... 107
Section 13.8 Prohibited Persons .......................................... 107
Section 13.9 Constitutive Documents ...................................... 108
Section 13.10 Permitted Disposition ....................................... 108
ARTICLE XIV DEFAULT PROVISIONS
Section 14.1 Conditions of Limitation ..................................... 111
Section 14.2 Events of Default ............................................ 112
Section 14.3 Rights of Landlord ........................................... 114
Section 14.4 Waiver of Right of Redemption ................................ 115
Section 14.5 No Waiver .................................................... 115
Section 14.6 Remedies Under Bankruptcy and Insolvency Codes ............... 115
ARTICLE XV
LANDLORD'S RIGHT TO PERFORM
Section 15.1 Right to Perform ............................................. 117
Section 15.2 Additional Remedies .......................................... 117
Section 15.3 Strict Performance ........................................... 118
Section 15.4 Right to Enjoin Defaults or Threatened Defaults .............. 118
ARTICLE XVI
ARBITRATION
Section 16.1 Generally .................................................... 119
Section 16.2 Standard Arbitration ......................................... 119
Section 16.3 Expedited Arbitration ........................................ 120
ARTICLE XVII
INDEMNITY; LIMITATION ON LIABILITY
Section 17.1 Indemnification by Tenant .................................... 123
Section 17.2 Indemnification Generally .................................... 124
Section 17.3 Recourse Only to Landlord's Estate in the Property ........... 124
Section 17.4 Recourse Only to Tenant's Estate in the Property ............. 125
Section 17.5 Survival ..................................................... 125
ARTICLE XVIII
QUIET ENJOYMENT; TRANSFER OF LANDLORD'S INTEREST
Section 18.1 Quiet Enjoyment ............................................. 126
Section 18.2 Transfer of Landlord's Interest ............................. 126
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ARTICLE XIX
WAIVER OF JURY TRIAL; COUNTERCLAIMS
Section 19.1 Waiver of Jury Trial ......................................... 127
Section 19.2 No Counterclaims ............................................. 127
Section 19.3 Survival ..................................................... 127
ARTICLE XX
NOTICES
Section 20.1 Notices ...................................................... 128
ARTICLE XXI
ESTOPPEL CERTIFICATE
Section 21.1 Certificate of Tenant ........................................ 131
Section 21.2 Certificate of Landlord ...................................... 131
Section 21.3 Construction Certificate ..................................... 131
ARTICLE XXII
SEVERABILITY
Section 22.1 Severability ................................................. 132
ARTICLE XXIII
END OF TERM; TITLE TO IMPROVEMENTS
Section 23.1 Surrender .................................................... 133
Section 23.2 Re-Entry ..................................................... 134
Section 23.3 Removal of Property .......................................... 134
Section 23.4 Title to Improvements ........................................ 134
ARTICLE XXIV
COVENANTS BINDING
Section 24.1 Covenants Binding ............................................ 135
ARTICLE XXV
ENTIRE AGREEMENT; NO WAIVER
Section 25.1 Entire Agreement ............................................. 136
Section 25.2 No Waiver .................................................... 136
ARTICLE XXVI
NO MERGER
Section 26.1 No Merger .................................................... 137
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ARTICLE XXVII
ENCUMBRANCES
Section 27.1 Encumbrances ................................................. 138
ARTICLE XXVIII
CONSENTS; APPROVALS
Section 28.1 Reasonable Standard .......................................... 139
Section 28.2 No Damages ................................................... 139
Section 28.3 Deemed Consent ............................................... 139
ARTICLE XXIX
NON-DISCRIMINATION AND AFFIRMATIVE ACTION
Section 29.1 Incorporation by Reference ................................... 141
ARTICLE XXX
REPRESENTATIONS, WARRANTIES AND COVENANTS, AND OTHER AGREEMENTS
Section 30.1 Representations and Warranties ............................... 142
Section 30.2 Possession ................................................... 143
Section 30.3 Covenants of Tenant .......................................... 143
Section 30.4 Public Amenity ............................................... 143
Section 30.5 Other Agreements ............................................. 146
ARTICLE XXXI
PERMITTED FINANCING
Section 31.1 Recognized Mortgage ......................................... 148
Section 31.2 Right and Time to Cure ...................................... 148
Section 31.3 Notice to Landlord .......................................... 149
Section 31.4 Acceptance of Performance ................................... 149
Section 31.5 Other Defaults .............................................. 149
Section 31.6 Execution of New Lease ...................................... 150
Section 31.7 Recognition of Most Senior Recognized Mortgagee ............. 154
Section 31.8 No Rights of Other Mortgagees ............................... 154
Section 31.9 Miscellaneous Mortgage Provisions ........................... 154
Section 31.10 Delegation by Tenant ........................................ 155
Section 31.11 Survival .................................................... 155
ARTICLE XXXII
CONDOMINIUM CONVERSION
Section 32.1 Condominium Conversion ....................................... 156
Section 32.2 Condominium Documents ........................................ 157
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ARTICLE XXXIII
MISCELLANEOUS
Section 33.1 Recording and Transfer Tax ................................... 159
Section 33.2 Brokers ...................................................... 159
Section 33.3 Media Announcements .......................................... 159
Section 33.4 Relationship of Landlord and Tenant .......................... 160
Section 33.5 Person Acting on Behalf of a Party Hereunder ................. 160
Section 33.6 Third Party Beneficiary ...................................... 160
Section 33.7 Proprietary Capacity Only .................................... 160
ARTICLE XXXIV
COMMON ELEMENTS LEASEABLE SPACE
Section 34.1 Generally .................................................... 161
Section 34.2 Defined Terms ................................................ 161
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Schedules
SCHEDULE 1 PILOT SCHEDULE
EXHIBITS
EXHIBIT A THE PROJECT DOCUMENTS
EXHIBIT B APPROVED CERTIFIED PUBLIC ACCOUNTING FIRMS
EXHIBIT C FORM OF COLLATERAL ASSIGNMENT
EXHIBIT D FORM OF CONDOMINIUM DECLARATION
EXHIBIT E-1 DESIGN, CONSTRUCTION AND MAINTENANCE REQUIREMENTS
FOR CONSTRUCTION OF BRIDGES AND FENCING
EXHIBIT E-2 HISTORIC PRESERVATION PROTECTION PLAN FOR
CONSTRUCTION ADJACENT TO HISTORIC STRUCTURES
EXHIBIT E-3 STREETSCAPE IMPROVEMENT DESIGN PROGRAM
EXHIBIT E-4 DISPLAY AND SIGNAGE REQUIREMENTS
EXHIBIT E-5 USE AND OPERATING PROGRAM
EXHIBIT E-6 ARCHITECTURAL REQUIREMENTS
EXHIBIT E-7 SITE SAFETY PROGRAM
EXHIBIT F FORM OF CONSTRUCTION GUARANTY
EXHIBIT G THE LAND
EXHIBIT H PERMITTED ENCUMBRANCES
EXHIBIT I-1 SCHEMATIC DESIGN PLANS
EXHIBIT I-2 TABLE OF AREAS
EXHIBIT I-3 FORM OF DECEMBER LETTER
EXHIBIT J FORM OF ARCHITECT'S CERTIFICATE
EXHIBIT K OUTLINE OF METHODOLOGY FOR DETERMINING PILOT
EXHIBIT L FORM OF NOTICE OF UNREIMBURSED ESAC
EXHIBIT M APPROVED CONTRACTORS AND CONSTRUCTION MANAGERS
EXHIBIT N APPROVED MAJOR CONTRACTORS
EXHIBIT 0 FORM OF "NON ADVERSE STRUCTURAL EFFECT" STATEMENT OF
ENGINEER OR ARCHITECT
EXHIBIT P FORM OF NONDISTURBANCE AGREEMENT
EXHIBIT Q NYTC FORM SUBLEASE
EXHIBIT R FORM OF NOTICE OF DEFAULT
EXHIBIT S FORM OF SECOND NOTICE OF DEFAULT
EXHIBIT T NON-DISCRIMINATION AND AFFIRMATIVE ACTION
EXHIBIT U STRUCTURE OF TENANT
EXHIBIT V LIST OF NFP USERS
EXHIBIT W FORM OF LEASE ASSIGNMENT
EXHIBIT X FORM CONDOMINIUM ASSOCIATION ASSUMPTION AGREEMENT
EXHIBIT Y AMENDED AND RESTATED AGREEMENT OF LEASE TO BE
ENTERED INTO UPON CONDOMINIUMIZATION
EXHIBIT Z FORM OF MEMORANDUM OF LEASE
viii
This AGREEMENT OF LEASE (this "LEASE"), is made as of the 12th day
of December, 2001, by and between 42ND ST. DEVELOPMENT PROJECT, INC. ("42DP"), 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,
having an office at 000 Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
Landlord, and THE NEW YORK TIMES BUILDING LLC ("TENANT"), a New York limited
liability company, having an office at c/o The New York Times Company, 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, ESDC and the City have developed, and are in the process of
implementing, a rehabilitation and renewal plan for an area of midtown Manhattan
surrounding West 42nd Street between Broadway and Eighth Avenue, known as the
00xx Xxxxxx Development Project (the "42ND STREET PROJECT");
WHEREAS, in furtherance of the 00xx Xxxxxx Project, ESDC has agreed
to commence proceedings to obtain fee title to the Property pursuant to the
Condemnation;
WHEREAS, promptly after ESDC obtains fee title to the Property, ESDC
will convey (a) to 42DP an estate on limitation in the Property, and (b) to the
City a reversionary estate in the Property;
WHEREAS, Landlord and Tenant acknowledge that the goals of the 00xx
Xxxxxx Project include (i) development of the 00xx Xxxxxx Project area's
commercial and retail potential, fostering a lively, healthy street ambience and
supporting the City's policy of fostering an environment that encourages the
expansion of the midtown Manhattan office area, (ii) expansion of the 00xx
Xxxxxx Project area's economic contribution to New York City as a whole, both
through increased revenues to the City and expanded private investment and
employment opportunities, and (iii) restoration of the 00xx Xxxxxx Project
area's role as a positive influence on the adjacent communities;
WHEREAS, Landlord and Tenant further acknowledge that it is their
intent that the Property be developed and operated in accordance with this Lease
to further the goals of the 00xx Xxxxxx Project;
WHEREAS, ESDC, Landlord, Tenant, NYTC Member, the FC Members, NYTC,
NYCEDC and the City are, as applicable, contemporaneously herewith entering
into, or have agreed to enter into, the documents listed on EXHIBIT A attached
hereto (the "PROJECT DOCUMENTS");
WHEREAS, Landlord and Tenant wish to provide for the development,
construction, operation and maintenance of the Project; and
WHEREAS, Tenant wishes to hire and to take from Landlord, and
Landlord wishes to lease and to demise to Tenant, the Property.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of whkh are hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION OF TERMS
SECTION 1.1 DEFINITIONS. (a) The terms defined in this SECTION 1.1
shall, for all purposes of this Lease and all agreements supplemental hereto,
have the meanings herein specified, unless specifically stated otherwise:
(i) "$2,OOO,OOO+ ALTERATION" has the meaning set forth in
SECTION 9.2(a) hereof.
(ii) "42DP" has the meaning set forth in the preamble to this
Lease.
(iii) "AAA" has the meaning set forth in SECTION 16.2(a)
hereof.
(iv) "ACCEPTABLE GUARANTOR" means a Person having (A) a net
worth, on the date of the depositing of such security, of at least $50,000,000,
as Adjusted for Inflation from the date hereof and (B) a debt rating of at least
"A" from Standard and Poors or the equivalent rating from another nationally
recognized rating agency.
(v) "ACCOUNTING PRINCIPLES" means, from time to time, the then
generally accepted accounting practices, consistently applied on a "cash basis".
(vi) "ADJUSTED DIMS" has the meaning set forth in SECTION
1.1(a)(xxxix) hereof, the definition of Project.
(vii) "ADJUSTED FOR INFLATION" means, with respect to any sum,
that there shall be added to such sum (as the same may have been previously
adjusted) beginning on the date hereof unless otherwise specified, on an annual
or such other basis as may be specified in this Lease (such annual or other
period, the "SPECIFIED INTERVAL"), an amount equal to the product of (A) such
sum (as the same may have been previously adjusted) and (B) a fraction (1) the
numerator of which is the difference between [a] the Consumer Price Index for
the calendar month immediately preceding the calendar month in which the
Specified Interval for which such calculation is being made ended and [b] the
Consumer Price Index for the calendar month immediately preceding the calendar
month in which the immediately preceding Specified Interval ended (or, if such
date would be prior to the date hereof, the calendar month in which the date
hereof occurs) (the "MEASURING MONTH"), and (2) the denominator of which is the
Consumer Price Index for the Measuring Month; PROVIDED, HOWEVER, (i) if for any
Specified Interval the difference between the index numbers in clauses [a] and
[b] above is less than zero (0), such numerator shall be deemed to be zero (0)
for purposes of calculating the applicable adjustment, and (ii) the applicable
adjustment for the Specified Interval immediately following a Specified Interval
in which the preceding clause (i) shall have been applicable shall be determined
by replacing clause [b] above in its entirety with the following: "[b] the
Consumer Price Index for the calendar month immediately preceding the calendar
month in which the Last Positive Specified Interval (as hereinafter defined)
ended. The "LAST POSITIVE SPECIFIED INTERVAL" shall mean the last Specified
Interval prior to the date of the applicable determination hereunder for which
the difference between the index numbers determined in accordance with clause
[a] above and this clause [b], prior to being altered due to the triggering of
this proviso, was more than zero (0)".
2
(viii) "ADJUSTED GROSS REVENUES" means all (A) revenues,
receipts and income of whatever kind and nature of Tenant or any Related Entity,
as determined in accordance with Accounting Principles, in any Lease Year,
generated from the ownership, operation, leasing, use or occupancy of the Retail
Space including (1) license fees or other amounts received from any subtenant of
such Retail Space or its affiliate for the right to maintain signage on the
facade of the New Building (but not from the granting of such signage rights to
any third party), (2) rentals, fees or other payments from Subtenants (subject
to clause (9) below), including any common area maintenance and operating
expense, but specifically excluding payments received in reimbursement of
utility, PILOT, Theater Surcharge or BID payments made by Tenant, or any Related
Entity, (3) the proceeds of insurance received by Tenant with respect to
business interruption or rent insurance (but not liability or casualty insurance
received by Tenant), (4) security and other deposits which secure other
revenues, receipts or income qualifying as Adjusted Gross Revenues when and to
the extent Tenant, after the final resolution of any Subtenant dispute over
whether Tenant has the right to retain such security and other deposits, either
has the right to retain the same or Tenant has no obligation to refund the same
(and excluding security and other deposits to the extent applied by Tenant to
reimburse Tenant for reasonable costs incurred in remedying a non-monetary
default by the provider of such security or deposit), (5) interest or other
investment income earned from time to time by Tenant on deposits or other
revenues, receipts or income qualifying as Adjusted Gross Revenues. (6) amounts
recovered in any legal action or proceeding or settlement thereof which
reimburses Tenant for a loss of revenues, receipts or income qualifying as
Adjusted Gross Revenues (and excluding any such amounts to the extent
reimbursing Tenant for reasonable costs incurred in remedying a non-monetary
default by the defendant in such action), (7) construction fees from the
performance by Tenant or any Related Entity of construction or construction
management services for Subtenants, but only to the extent such fees exceed
customary amounts (and excluding such fees to the extent they do not exceed such
customary amounts), (8) leasing or brokerage commissions paid to Tenant or any
Related Entity in connection with the entering into of a Sublease or the renewal
thereof or the expansion of the Demised Space thereunder, but only to the extent
Tenant or such Related Entity is not the procuring broker, or if Tenant or such
Related Entity is the procuring broker, only to the extent such commissions
exceed customary amounts (and excluding such commissions to the extent they do
not exceed such customary amounts), and (9) with respect to any Related Entity
that is a Subtenant in possession and actual use of its Demised Space, the
greater of [a] the rentals, fees or other payments made to Tenant by such
Subtenant, including any common area maintenance and operating expense, but
specifically excluding payments received in reimbursement of utility, PILOT,
Theater Surcharge or BID payments made by Tenant and [b] the fair market rental
value of such Demised Space (and with respect to a Related Entity that is a
Subtenant not in possession and actual use of its Demised Space, all revenues,
receipts and income of whatever kind and nature of such Related Entity generated
from the Project, as provided above, shall be included in Adjusted Gross
Revenues) less (B) refunds made upon transactions included within the revenues
described in clause (A) above. "Adjusted Gross Revenues" shall not include any
management fee in a customary amount paid by Tenant to any Related Entity to
manage the Property.
(ix) "ADMINISTRATIVE FEE" has the meaning set forth in SECTION
3.6 hereof.
(x) "ALLOCATED SQUARE FEET" has the meaning set forth in
SECTION 1.1(a)(cccxxi) hereof, the definition of Total Taxable Square Feet
Certificate.
(xi) "ALTERATION" means every alteration, installation,
improvement, addition, removal, demolition or other physical change in or about
the Property (or applicable portion
3
thereof) after the completion of Tenant's Construction Work; PROVIDED, HOWEVER,
that no Interior Construction Work shall constitute an Alteration.
(xii) "ALTERATIONS CERTIFICATION" has the meaning set forth in
SECTION 9.2(d) hereof.
(xiii) "ALTERNATIVE PILOT NOTICE" has the meaning set forth in
SECTION 3.1(a)(i)(C) hereof.
(xiv) "ALTERNATIVE PILOT SCHEDULE" has the meaning set forth
in SECTION 3.1(a)(i)(C) hereof.
(xv) "APPLICABLE JUDGMENTS" means all judgments, court orders
and injunctions applicable to or affecting the Project, this Lease or the
Property now or hereafter existing.
(xvi) "APPOINTMENT DATE" has the meaning set forth in SECTION
16.2(a) hereof or SECTION 16.3(a) hereof, as applicable.
(xvii) "APPROVED SCHEMATIC DESIGN PLANS" means those Schematic
Design Plans approved in accordance with SECTION 6.2(a)(ii) hereof.
(xviii) "ARBITRATION NOTICE" has the meaning set forth in
SECTION 16.2(a) hereof.
(xix) "ARBITRATOR" has the meaning set forth in SECTION
16.2(a) hereof.
(xx) "ARCHITECT" means the Design Architect and any other
registered architect or architectural firm selected by Tenant and/or any
Subtenant and, if required pursuant to the terms of this Lease, approved by
Landlord in accordance with this Lease.
(xxi) "ARCHITECT'S CERTIFICATION" means a certification,
executed by an Architect or an Engineer, made to Landlord.
(xxii) "Argent" has the meaning set forth in SECTION 33.2(a)
hereof.
(xxiii) "ASSESSED VALUE" means the then-current full assessed
value of the Existing Improvement in question, as assessed by the New York City
Department of Finance.
(xxiv) "ASSIGNMENT" means the sale, exchange, assignment or
other disposition, whether by operation of law or otherwise, of all or any
portion of Tenant's interest in this Lease or the leasehold estate created
hereby.
(xxv) "AUDITORIUM" has the meaning set forth in SECTION
30.4(b)(i) hereof.
(xxvi) "BID" means a Business Improvement District or any
successor in function.
(xxvii) "BROKERS" has the meaning set forth in SECTION 33.2
hereof.
4
(xxviii) "BUDGETED LOBBY SUBLEASE SPACE CONSTRUCTION COSTS"
has the meaning set forth is SECTION 34.2(a) hereof.
(xxix) "BUDGETED PA RETAIL CONSTRUCTION COSTS" means the
total, actual cost to construct the PA Retail Space as reasonably approved by
Tenant's construction lender (so long as such construction lender is a Lending
Institution) or as reasonably approved by Landlord (if, in respect of the PA
Retail Space, Tenant has no construction lender which is a Lending Institution),
as indicated on a final construction budget approved, as the case may be, by
such construction lender or by Landlord (the construction budget for the PA
Retail Space having been prepared separately from the overall construction
budget for the New Building, and having been provided to Landlord as a Verified
Statement), including the Transaction Price and all other hard and soft costs
(other than land acquisition costs above the Transaction Price), in each case,
reasonably allocable, on a square foot basis, to the PA Retail Space.
(xxx) "BUDGETED RETAIL CONSTRUCTION COSTS" means the total,
actual cost to construct the Retail Space as reasonably approved by Tenant's
construction lender (so long as such construction lender is a Lending
Institution) or as reasonably approved by Landlord (if, in respect of any
particular Retail Space, Tenant has no construction lender which is a Lending
Institution), as indicated on a final construction budget approved, as the case
may be, by such construction lender or by Landlord (the construction budget for
the Retail Space having been prepared separately from the overall construction
budget for the New Building, and having been provided to Landlord as a Verified
Statement), including the Transaction Price and all other hard and soft costs
(other than land acquisition costs above the Transaction Price), in each case,
reasonably allocable, on a square foot basis, to such Retail Space.
(xxxi) "BUDGETED ROOF TOP GARDEN CONSTRUCTION COSTS" has the
meaning set forth in SECTION 34.2(b) hereof.
(xxxii) "BUSINESS DAY" means any day which is not a Saturday,
a Sunday or a day observed as a holiday by the City or the State of New York or
the federal government of the United States of America.
(xxxiii) "CASH DEPOSIT" has the meaning set forth in SECTION
10.9(a) hereof.
(xxxiv) "CASUALTY" has the meaning set forth in SECTION
11.1(a) hereof.
(xxxv) "CERTIFIED PUBLIC ACCOUNTANT" means (A) any of the
firms set forth on EXHIBIT B attached hereto, or (B) any other reputable and
disinterested certified public accounting firm with more than seventy-five (75)
Principals.
(xxxvi) "CHARGES" means all of the amounts payable by Tenant
pursuant to this Lease, including, but not limited to, PILOT, Percentage Rent,
Theater Surcharge, additional charges, and any other sums, costs, expenses, or
deposits which Tenant is obligated, pursuant to any of the provisions of this
Lease, to pay to and/or deposit with Landlord.
(xxxvii) "CITY" means The City of New York, a municipal
corporation.
(xxxviii) "CLAIMS" means all liabilities (statutory or
otherwise), obligations, claims, demands, damages, penalties, causes of action,
costs, expenses (including attorneys' fees and
5
expenses), losses and injuries in any manner relating to or arising with respect
to the subject matter of any indemnity granted herein, including any enforcement
of any such indemnity by the indemnified party; provided, however, "Claims"
shall not include any of the foregoing to the extent arising directly from
disputes between Landlord and Tenant under this Lease except to the extent that
any such dispute between Landlord and Tenant arises from enforcement of any such
indemnity by the indemnified party.
(xxxix) "COLLATERAL ASSIGNMENT" means that certain Collateral
Assignment in the form attached hereto as EXHIBIT C.
(xl) "COLLECTION AGENT" means the Person designated in
accordance with the Project Agreement to collect rents and other amounts payable
hereunder, and such Person's successors and assigns.
(xli) "COMMENCE CONSTRUCTION" or "COMMENCEMENT OF
CONSTRUCTION" means commencement of the Tenant's Construction Work, including
any excavation or pile driving, but not including test borings, test-pilings,
surveys, the Demolition Work and similar pre-construction activities.
(xlii) "COMMENCEMENT DATE" means the date hereof.
(xliii) "COMMERCIALLY AVAILABLE" means, with respect to the
procurement of insurance coverage, that such insurance coverage is then being
offered by at least three (3) nationally-recognized insurance providers or by a
governmental entity on commercially reasonable terms, which insurance coverage
is generally being procured by developers of high-rise office buildings in
midtown Manhattan.
(xliv) "COMMON ELEMENTS LEASEABLE SPACE" has the meaning set
forth in SECTION 34.1(c) hereof.
(xlv) "COMPTROLLER" has the meaning set forth in SECTION
3.13(a) hereof.
(xlvi) "CONDEMNATION" means the "Proceeding" as such term is
defined in the Site 8 South LADA.
(xlvii) "CONDEMNATION RESTORATION" has the meaning set forth
in SECTION 12.3(a) hereof.
(xlviii) "CONDOMINIUM ACT" means Article 9-B of the Real
Property Law of the State of New York or any statute enacted in lieu thereof.
(xlix) "CONDOMINIUM ASSOCIATION" means the condominium
association established pursuant to the Condominium Documents.
(l) "CONDOMINIUM ASSOCIATION ASSUMPTION AGREEMENT" has the
meaning set forth in SECTION 32.1(a)(iii) hereof.
(li) "CONDOMINIUM BY-LAWS" means the by-laws annexed to the
Condominium Declaration, together with all amendments, modifications and
supplements thereto.
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(lii) "CONDOMINIUM DECLARATION" means the instrument by which
Tenant's leasehold estate in the Property is subjected to the Condominium Act,
in the form attached hereto as EXHIBIT D, together with all amendments,
modifications and supplements thereto.
(liii) "CONDOMINIUM DOCUMENTS" means the Condominium
Declaration, the Condominium By-Laws and any other documents executed or
recorded in connection with subjecting the Property to the Condominium Act.
(liv) "CONDOMINIUM UNIT" means a condominium unit in the
Property, as described in the Condominium Documents.
(lv) "CONSTITUTIVE DOCUMENTS" means Tenant's organizational
documents, including (A) the operating agreement of Tenant, (B) the articles of
organization of Tenant and (C) any modifications to the foregoing.
(lvi) "CONSTRUCTION COMMENCEMENT DATE" means, the earlier to
occur of (A) the Fixed Construction Commencement Date, as the same may be
extended by Unavoidable Delays and (B) the first date upon which any Ternant's
Construction Work actually commences.
(lvii) "CONSTRUCTION GUARANTIES" means, collectively, the
guaranties to be delivered in accordance with SECTION 6.3(b)(iv) hereof.
(lviii) "CONSTRUCTION WORK" means any construction work at the
Property, including without limitation Tenant's Construction Work, the
Demolition Work and any Alteration.
(lix) "CONSUMER PRICE INDEX" means the Consumer Price Index
for All Urban Consumers published by the Bureau of Labor Statistics of the
United States Department of Labor, New York - Northern New Jersey - Long Island,
NY-NJ-CT area, All Items (1982-1984 = 100), or any successor index thereto,
appropriately adjusted. If the Consumer Price Index ceases to be published, and
there is no successor thereto, such other index as Landlord and Tenant agree
upon, each acting reasonably, as appropriately adjusted, shall be substituted
for the Consumer Price Index. If the Consumer Price Index ceases to use
1982-1984 = 100 as the basis of calculation, the Consumer Price Index shall be
adjusted accordingly.
(lx) "CONTINUATION NOTICE" has the meaning set forth in
SECTION 31.6 (i)(ii) hereof.
(lxi) "CONTROL" has the meaning indicated in the definition of
Control Affiliate.
(lxii) "CONTROL AFFILIATE" means any Person (A) controlling,
controlled by or under common control with another Person, and for the purposes
hereof no Person shall be deemed to control any other Person unless more than
fifty percent (50%) of such controlled Person is owned beneficially by the
controlling person or entity and (B) which retains the power and authority to
make Major Decisions on behalf of the controlled Person.
(lxiii) "CONVICTION" has the meaning set forth in SECTION
13.1O(d)(2) hereof.
(lxiv) "CORE AND SHELL" means, in respect of the New Building,
collectively but without duplication: (A) (1) the exterior and interior
structure of, and common systems and
7
equipment servicing, the New Building, including without limitation, the roof
(other than any Roof Top Garden Improvements and the Roof Top Garden Space),
interior weight-bearing walls, support beams, foundation, columns, lateral
supports, exterior walls including, without limitation, exterior permanent
storefronts (but not to the extent prevented by hoists due to ongoing
Construction Work), exterior doors and exterior windows, (2) concrete slabs and
related structural assemblies that constitute the superstructure of the New
Building, (3) the core corridor walls on each floor of the New Building, (4)
base building systems servicing the building common areas and the tenant
premises (and the air shafts, elevator shafts, electrical and other utility
closets, equipment rooms, fire doors and fire stairways housing necessary to
accommodate, affecting or servicing such base building services) including
without limitation [a] the sprinkler system, including the main sprinkler loop
on each floor and all vertical risers, [b] the elevator (including service)
facilities, including the elevator cabs and all shafts, cables and other
mechanical equipment relating thereto, [c] the heating, ventilation and air
conditioning system (including boilers and circulation pumps but excluding any
portions of such systems which may be installed in connection with Interior
Construction Work performed by NYTC Member with respect to the NYTC Component or
by or for any Subtenant with respect to the FC Component), [d] all vertical
pipes, mains and risers of plumbing and sanitary systems, [e] the electrical
system, including, without limitation, any and all switch gears, risers,
feeders, transformers, main distribution panels, wiring and meters relating
thereto up through the point of connection to the electrical closet of any floor
of the New Building, and [f] the life safety, fire alarm and security systems
required by Legal Requirements in respect of core and shell construction,
including the fire command station, the emergency generator, panel and system,
any wiring, cables, risers, ductwork or distribution apparatus necessary to
distribute such service within the New Building, (5) all of the common areas
located within or outside of the New Building, common entrances, lobbies,
corridors and doors of common areas, loading areas, fire stairways and the
interior walls, ceilings, floors of the common areas of the New Building, and
(6) the exterior site improvements including adjoining sidewalks; and (B) any
other initial Improvements governed by any element of the DUO other than any
signage on the New Building required by the DUO (it being acknowledged that the
DUO may govern certain interior spaces).
(lxv) "CORE AND SHELL PUNCHLIST" has the meaning set forth in
SECTION 6.3(b)(iv) hereof.
(lxvi) "COURT" has the meaning set forth in SECTION 16.2(a)
hereof.
(lxvii) "CPLR" has the meaning set forth in SECTION 16.2(bXi)
hereof.
(lxviii) "CUSTOMARY" or "CUSTOMARY" when used in respect of
fees, commissions or other payments for services performed or materials
furnished, means the amount customarily and reasonably paid in arm's length
transactions to an unaffiliated third party for the performance of the
applicable service or the provision of the applicable material in multi-tenant
office developments situated in Manhattan.
(lxix) "DA WORK PRODUCT" has the meaning set forth in SECTION
6.4 hereof.
(lxx) "DATE OF TAKING" has the meaning set forth in SECTION
12.2 hereof.
(lxxi) "DECEMBER LETTER" has the meaning set forth in SECTION
6.2(a)(ii) hereof.
8
(lxxii) "DEFAULT" means (A) the failure of any party hereto to
perform or complete any Obligations as required hereunder and in accordance
herewith after receipt of any applicable First Default Notice (but without
regard to any cure period in respect thereof), and (B) any other matter
expressly identified as a Default hereunder.
(lxxiii) "DELIVERY DATE" means the date that Landlord delivers
Possession to Tenant.
(lxxiv) "DEMISED SPACE" means the portion of the New Building
in which a Subtenant has an interest pursuant to a Sublease, including, without
limitation, any portion of the Roof Top Garden Space or the Lobby Sublease
Space.
(lxxv) "DEMOLITION ENGINEER" has the meaning set forth in
SECTION 6.5(b)(iii) hereof.
(lxxvi) "DEMOLITION WORK" has the meaning set forth in SECTION
6.5(a) hereof.
(lxxvii) "DEPOSITARY" means any entity, agreeing for the
benefit of Landlord and Tenant, to perform the obligations of depositary
hereunder on substantially the terms of the Depositary Agreement, which (A) (1)
is a Recognized Mortgagee or a Control Affiliate of a Recognized Mortgagee
(PROVIDED that such Recognized Mortgagee or such Control Affiliate is designated
as the Depositary by Tenant and such Recognized Mortgage and would qualify as a
Lending Institution, but is other than a savings bank or savings and loan
association), (2) if not a Recognized Mortgagee or such Control Affiliate, is a
commercial bank or trust company qualifying as a Lending Institution designated
by the Recognized Mortgagee most senior in lien, or (3) if not the Recognized
Mortgagee or such Control Affiliate or designated by the Recognized Mortgagee
pursuant to clause (2) above, is a commercial bank or trust company qualifying
as a Lending Institution, as designated by Tenant with the reasonable
concurrence of Landlord, (B) has an office in the City of New York, and (C) has
a net worth of not less than One Hundred Million Dollars ($100,000,000) and net
assets of not less than Two Hundred Fifty Million Dollars ($250,000,000) (as
such sums shall be Adjusted for Inflation on an annual basis from the
Commencement Date) throughout the period during which it acts as the Depositary.
If, at any time, no Lending Institution has been designated to so act, then
Landlord shall designate as the Depositary an unaffiliated third party
reasonably acceptable to Tenant that is ordinarily engaged in the business of
acting as a depositary. Tenant's disapproval of an unaffiliated third party so
designated by Landlord shall not be reasonable unless it is based solely on the
prior direct experience of Tenant or any Related Entity of Tenant with such
party.
(lxxviii) "DEPOSITARY AGREEMENT" means the agreement, in form
reasonably acceptable to Landlord and Tenant (and reasonably approved by each
Recognized Mortgagee, if any, at the time of the execution and delivery
thereof), pursuant to which the Depositary agrees to perform its obligations
hereunder.
(lxxix) "DESIGN ARCHITECT" means Xxxxx Xxxxx Building Workshop
or, in the event that Xxxxx Xxxxx Building Workshop is no longer the Design
Architect, any other Replacement Design Architect approved in accordance with
this Lease, in either case alone or in affiliation with another Architect acting
as the Production Architect.
9
(lxxx) "DESIGN DEVELOPMENT PLANS" means proposed design
development plans that have been submitted to and approved by Landlord in
accordance with SECTION 6.2(b) hereof, with such modifications as shall be
consented to by Landlord in accordance herewith. The proposed design development
plans submitted to Landlord shall (A) conform to the applicable Approved
Schematic Design Plans, if any, submitted to Landlord, (B) comply with the
applicable requirements of DUO and (C) consist of drawings more particularly
described in EXHIBIT E-6 attached hereto, and at a minimum consist of (1) floor
plans of all floors and building sections indicating spaces, structure, the
location of proposed entrances and lobbies, doors, and windows, (2) rendered
exterior elevations, in color, including elevations that show the relationship
of the New Building to its surroundings, (3) exterior elevations noted with
materials and floor heights, (4) elevations and sections with sufficient detail
to adequately convey the aesthetics of the building's exterior, including each
typical molding and cornice profile, reveal, and window details, (5) storefront,
public areas and building entrance details, (6) material samples and light
fixture samples for all exterior facades, (7) color boards illustrating the
building's actual color palette, (8) diagrammatic elevational rendering
illustrating the exterior lighting scheme, (9) rendering of the building as it
would be seen looking south from the xxxxxxxxx xxxxxx xx 0xxx Xxxxxx and 8th
Avenue and any other rendering Landlord may request to assist in the review of
the design, (10) table of areas by use by floor, (11) a scale model at 1"=50'
showing the entire building, and (12) scale models at 1/4"=1' of the facade to
illustrate the varying curtain wall treatment of each of the tower and the base
of the building (which scale models shall depict in accurate scale the varying
mullion patterns and designs, including the screening rods).
(lxxxi) "Determination" has the meaning set forth in SECTION
16.2(b)(iii) hereof.
(lxxxii) "DEVELOPMENT TEAM" means, collectively, the Design
Architect and any other Architect, general contractor and/or construction
manager, hired in respect of the Demolition Work and the Tenant's Construction
Work.
(lxxxiii) "DISCOUNT RATE" means a discount rate equal to the
then current rate of United States Treasury bills or notes, as applicable,
maturing ten (10) years after the Delivery Date or the next maturity date for
such bills or notes occurring after such date.
(lxxxiv) "DISCRETIONARY INSIDE MECHANICAL SPACE" means up to
60,000 Square Feet (or, in the event of the occurrence of the Third Non-Delivery
Event, if applicable, the Adjusted DIMS), within the New Building, to be built,
at Tenant's discretion, and used only for building mechanical purposes.
(lxxxv) "DUO" means the Design, Use and Operating Requirements
which are attached to this Lease as follows:
(A) Design, Construction and Maintenance Requirements
for construction of Bridges and Fencing attached hereto as EXHIBIT E-1;
(B) Historic Preservation Protection Plan for
Construction Adjacent to Historic Structures attached hereto as EXHIBIT E-2;
(C) Streetscape Improvement Design Program attached
hereto as EXHIBIT E-3;
10
(D) Display and Signage Program attached hereto as
EXHIBIT E-4;
(E) Use and Operating Requirements attached hereto as
EXHIBIT E-5;
(F) Architectural Requirements attached hereto as
EXHIBIT E-6;
(G) Site Safety Program attached hereto as EXHIBIT E-7.
(lxxxvi) "DUO/STRUCTURAL ALTERATION" has the meaning set forth
in SECTION 9.2(a) hereof.
(lxxxvii) "DUO ALTERATION" has the meaning set forth in
SECTION 9.2(a) hereof.
(lxxxviii) "DUPLICATE TS PAYMENT" has the meaning set forth in
SECTION 3.3(e) hereof.
(lxxxix) "EDPL" means the Eminent Domain Procedure Law of the
State of New York, as amended from time to time.
(xc) "EIN" means an employer identification number or taxpayer
identification number issued by the Internal Revenue Service.
(xci) "ENGINEER" means any licensed structural engineer or
engineering firm selected by Tenant and/or any Subtenant and, if required
pursuant to the terms of this Lease, approved by Landlord in accordance with
this Lease.
(xcii) "ENVIRONMENTAL ACTIVITY" means any use, storage,
installation, existence, release, threatened release, discharge, generation,
abatement, removal, disposal, handling or transportation from, under, into or on
the Property (or any portion thereof) of any Hazardous Materials.
(xciii) "EQUIPMENT" means all fixtures and personal property
incorporated in or attached to and used or usable in the operation of the
Project owned or leased by Tenant.
(xciv) "EQUITY INTEREST DISPOSITION" means any Transfer in a
Person or in any direct or indirect constituent entity of such Person, where
such Transfer directly or indirectly produces any change in the direct or
indirect beneficial ownership of an interest in, or Control of, such Person. The
term "Equity Interest Disposition" shall also include any (A) transaction or
series of transactions (including, without limitation, the issuance of
additional equity interests in such Person) or (B) direct or indirect revision
of the beneficial ownership structure or control of such Person or any direct or
indirect constituent entity of such Person, which, in either case, produces any
change in the direct or indirect beneficial ownership of an interest in, or
Control of, such Person.
(xcv) "EQUITY INVESTOR" means any member of an FC Member
(other than FC) approved by Landlord in Landlord's sole discretion, it being
agreed that INGREDUS Site 8 South LLC is so approved.
(xcvi) "ESDC" has the meaning set forth in the recitals of
this Lease.
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(xcvii) "ESTIMATED TENANT SALES TAX STATEMENT" has the meaning
set forth in SECTION 3.3(c) hereof.
(xcviii) "EVENT" has the meaning set forth in SECTION
30.4(b)(ii) hereof.
(xcix) "EVENT OF DEFAULT" has the meaning set forth in SECTION
14.2 hereof
(c) "EXCESS CONSIDERATION" has the meaning set forth in
SECTION 13.1(i)(iii) hereof.
(ci) "EXCESS DAYS" has the meaning set forth in SECTION
6.1(c)(iii) hereof.
(cii) "EXCESS SITE ACQUISITION COSTS" means the amount by
which the total SAC amount, including interest thereon pursuant to Section
3.04(c) of the Site 8 South LADA, exceeds the Transaction Price.
(ciii) "EXCLUDED TAXES" has the meaning set forth in SECTION
1.1(a)(cxlii) hereof, the definition of Impositions.
(civ) "EXEMPTED MORTGAGE" means (A) the Mortgage granted by
Tenant in connection with the initial construction financing of the Project (the
"INITIAL CONSTRUCTION MORTGAGE"), (B) to the extent such financing is closed
simultaneously with the Initial Construction Mortgage, the mortgage granted by
Tenant in connection with Tenant's initial permanent financing of the Project
(the "INITIAL PERMANENT MORTGAGE") and (C) the recording of any assignment(s) of
the Initial Construction Mortgage and the Initial Permanent Mortgage, and any
other documents securing payment of such financing recorded concurrently or in
connection therewith, but only to the extent of the outstanding principal
indebtedness secured by such mortgages at such time.
(cv) "EXISTING IMPROVEMENTS" has the meaning set forth in
Section 1.1(a)(cxliii) hereof, the definition of Improvements.
(cvi) "EXISTING VIOLATIONS" means any condition on the
Property, existing on or before the Delivery Date, which gives rise to a
violation of record of Legal Requirements, issued by a Governmental Authority
with applicable jurisdiction prior to or within twelve (12) months after the
Delivery Date.
(cvii) "EXPIRATION DATE" has the meaning set forth in SECTION
2.1(b) hereof.
(cviii) "FC" means FC 00Xx Xxxxxx Associates, LLC.
(cix) "FC COMPONENT" means the portion of the Property leased
pursuant to the XX Xxxxxxxxx Subleases (including, without limitation, the FC
Members' undivided interests in the common areas of the Property).
(cx) "FC FACILITY PERCENTAGE" means a percentage equal to the
difference between one hundred percent (100%) and the NYTC Facility Percentage.
(cxi) "FC MEMBER" means each tenant executing a XX Xxxxxxxxx
Sublease and its permitted successors and assigns.
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(cxii) "FC OFFICE SEVERANCE SUBLEASE" means that certain FC
Office Severance Sublease, dated as of the date hereof, between Tenant and an FC
Member, and any other sublease entered into pursuant to SECTION 13.12 thereof.
(cxiii) "FC RETAIL SEVERANCE SUBLEASE" means that certain FC
Retail Severance Sublease, dated as of the date hereof, between Tenant and an FC
Member.
(cxiv) "XX XXXXXXXXX SUBLEASES" means the FC Office Severance
Sublease and the FC Retail Severance Sublease.
(cxv) "FCE" means Forest City Enterprises, Inc., an Ohio
corporation.
(cxvi) "FCE CONSTRUCTION GUARANTY" means a Construction
Guaranty by FCE in favor of 42DP in the form attached hereto as EXHIBIT F.
(cxvii) "FINAL MRT NOTIFICATION" has the meaning set forth in
SECTION 3.4(c) hereof.
(cxviii) "FINAL TAX NOTIFICATION" has the meaning set forth in
SECTION 3.3(e) hereof.
(cxix) "FINAL PLANS AND SPECIFICATIONS" means proposed final
plans and specifications that have been submitted to and approved by Landlord in
accordance with SECTION 6.2(c) hereof or SECTION 9.2(a) hereof, as applicable,
with such modifications after such consent as shall be consented to by Landlord
in accordance herewith. The proposed final plans and specifications submitted to
Landlord shall (A) conform to the applicable Design Development Plans, if any,
submitted to Landlord, (B) comply with the applicable requirements of DUO, (C)
consist, of plans and specifications more particularly described in EXHIBIT E-6
attached hereto, and at a minimum consist of (1) floor plans of all floors or
representative floor plans and building sections indicating spaces, structure,
the location of proposed entrances and lobbies, doors, and windows, (2) rendered
exterior elevations, in color, (3) exterior elevations noted with material and
floor heights, (4) sufficient details, elevations and sections required to
adequately convey the aesthetics of the building's exterior including each
typical molding and cornice profiles, reveals, and window details, (5)
storefront, public areas and building entrance details, (6) table of areas by
use by floor (the table of areas shall be submitted by an Architect and such
Architect shall certify that the area of the New Building has been measured in
strict accordance with the definition of Square Foot; the certification by such
Architect shall include an explanation of all assumptions made in the
calculation the table of areas), (7) any other information required as part of
the Design Development Plans that was not available at the time of the Design
Development Plans submission, and (8) a visual mock-up of the proposed curtain
walls and (D) contain a schedule of retail signage allocations with respect to
the NYTC Component and the FC Component.
(cxx) "FIRST DEFAULT NOTICE" has the meaning set forth in
SECTION 14.2 hereof.
(cxxi) "FIRST EXTENSION PERIOD" has the meaning set forth in
SECTION 6.1(c)(i) hereof.
13
(cxxii) "FIRST LEASE YEAR" has the meaning set forth in
SECTION 1.1(a)(clxviii) hereof, the definition of Lease Year.
(cxxiii) "FIRST NON-DELIVERY EVENT" has the meaning set forth
in SECTION 1.1(a)(clxxxix) hereof, the definition of Non-Delivery Event.
(cxxiv) "FIRST PA EXTENSION" has the meaning set forth in
SECTION 30.4(d)(i)(B)(2) hereof.
(cxxv) "FIRST PILOT YEAR" has the meaning set forth in SECTION
1.1(a)(ccxxxii) hereof, the definition of PILOT Year.
(cxxvi) "FIXED CONSTRUCTION COMMENCEMENT DATE" means the date
that is twelve (12) months after the Delivery Date, as such date may be adjusted
pursuant to SECTIONS 6.1(b), 6.1(c) and 6.5(b)(ii)(C) hereof.
(cxxvii) "FIXED SUBSTANTIAL COMPLETION DATE" means the date
that is thirty-six (36) months after the Construction Commencement Date, as such
date may be extended pursuant SECTIONS 6.1(b), 6.1(c) and 6.6(c) hereof.
(cxxviii) "FIXED CONSTRUCTION PERIOD" has the meaning set
forth in SECTION 6.1(c)(i) hereof.
(cxxix) "FOURTH NON-DELIVERY EVENT" has the meaning set forth
in SECTION 1.1(a)(clxxxix) hereof, the definition of Non-Delivery Event.
(cxxx) "FULL INSURABLE VALUE" means actual replacement cost of
the Improvements (exclusive of the cost of excavation, foundations and
footings).
(cxxxi) "FULL TAXES" means the real property taxes that would
be assessed and levied against the Property, the owner thereof and the interest
of Tenant therein, if the Property or the owner thereof were not exempt from
such taxes, pursuant to (A) the provisions of Chapter 58 of the Administrative
Code of The City of New York and Title 11, Chapter 2, of the Administrative Code
of the City of New York, as the same may be amended from time to time, or (B)
any statute or ordinance in lieu thereof or in addition thereto to the extent
the charges imposed thereby are of a type customarily considered as real
property taxes.
(cxxxii) "GALLERY" has the meaning set forth in SECTION
30.4(b)(iii) hereof.
(cxxxiii) "GOVERNMENTAL AUTHORITY" or "GOVERNMENTAL
AUTHORITIES" means the United States of America, the State of New York, the City
and any agency, department, commission, board, bureau, instrumentality or
political subdivision of any of the foregoing, now existing or hereafter
created, having jurisdiction over the Property or any portion thereof or any
street, road, avenue or sidewalk comprising a part of, or in front of, the
Property, or any vault in or under the Property.
(cxxxiv) "GUARANTIES" means, collectively, the LADA Guaranty,
the Insurance Guaranty and each Construction Guaranty (upon their execution and
delivery in accordance with SECTION 6.3(b)(iv) hereof, as applicable).
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(cxxxv) "GUARANTORS" means, collectively, all guarantors under
the Guaranties.
(cxxxvi) "HAZARDOUS MATERIALS" means (A) any "hazardous
substance" as defined in SECTION 101(14) of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C ss. 9601(14), as amended, (B)
any "hazardous waste" as defined in SECTION 27 1301(1) of the New York
Environmental Conservation Law, (C) petroleum or petroleum products, crude oil
or any by products thereof, natural gas or synthetic gas used for fuel, (D) any
asbestos, asbestos containing material or polychlorinated biphenyl and (E) any
additional substances or materials which are classified or considered to be
hazardous or toxic under the laws of the State of New York, the United States of
America or under any other Legal Requirements.
(cxxxvii) "HEARING" has the meaning set forth in SECTION
13.10(a) hereof.
(cxxxviii) "HEARING OFFICERS" has the meaning set forth in
SECTION 13.10(a) hereof.
(cxxxix) "XXX" means the New York City Industrial Development
Agency, a public benefit corporation of the State of New York.
(cxl) "XXX INDUCEMENT DATE" means the date the XXX board of
directors adopts an inducement resolution with respect to NYTC.
(cxli) "XXX PROJECT AGREEMENT" means that certain Project
Agreement, dated as of December 1, 2001, between the XXX and NYTC.
(cxlii) "IMPOSITIONS" means all taxes, fees, assessments and
charges that are levied by a Governmental Authority, BID or similar entity
against the Property or the interest of Tenant therein to the extent that same
may give rise to a lien against the Property, including special assessments,
personal property and general intangibles taxes, gross receipts, sales, use and
occupancy, water and sewer charges, rates and rents to the extent charged
separately from Full Taxes, charges for the establishment and operation of any
BID in which the Property is located, charges for public utilities assessed by a
Governmental Authority, BID or similar entity, excises, levies, vault and other
license, rent and permit fees and other municipal and governmental impositions
and charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature whatsoever, which are during the term of this
Lease assessed, levied, charged or imposed upon or become payable out of or
become a lien on (A) the Property, or any part thereof, the appurtenances
thereto or the sidewalks, streets or vaults adjacent thereto, (B) any personal
property owned by Tenant and located on the Property, or any part thereof, (C)
any rent and income received by or for the account of Tenant from any Subtenants
or other users or occupants of the Property, or any part thereof, (D) any
franchises, easements or similar rights demised hereunder, licenses and permits
as may be appurtenant to the use of the Property or any documents to which
Tenant is a party, creating or transferring an interest or estate in the
Property, or (E) any occupancy, use or possession of the Property, or any part
thereof, the appurtenances thereto or the sidewalks, streets, alleys or vaults
adjacent thereto; "Impositions" shall not include any amounts included in Full
Taxes, any PILOT, PILOMRT, Theater Surcharge, PILOST, municipal, state or
federal income taxes assessed against Landlord or Tenant, any capital levy,
estate, gift, succession, inheritance or transfer taxes, or any corporate
franchise taxes or unincorporated business taxes imposed upon any owner of the
Land, or any part thereof ("EXCLUDED TAXES"); PROVIDED, HOWEVER, that if at any
time during the
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term of this Lease the present method of taxation or assessment shall be so
changed that any Excluded Taxes shall either be added to, or substituted in
whole or in part for, Impositions, then any such Excluded Tax shall, to the
extent that it is so added or substituted, be deemed to be included within
Impositions.
(cxliii) "IMPROVEMENTS" means (A) the buildings and other
improvements and appurtenances of every kind and description located on the Land
as of the Delivery Date, any equipment situated or incorporated therein or
attached thereto, and all alterations and replacements thereof and additions
thereto, made or installed prior to the Commencement of Construction of the New
Building (the "EXISTING IMPROVEMENTS") and (B) any buildings and structures, and
any building machinery, equipment and fixtures (including Equipment) affixed to
and forming a part of the buildings and structures, which may be erected or
located wholly or partially on the Land during the term of this Lease by or on
behalf of Tenant or any Subtenant, but excluding any personal property owned or
leased by Tenant or any Subtenant.
(cxliv) "INCOME TAX CODE" means the United States Internal
Revenue Code of 1986, as amended from time to time.
(cxlv) "INDEMNIFIED PARTIES" has the meaning set forth in
SECTION 17.2(a) hereof.
(cxlvi) "INDICTED PARTY" has the meaning set forth in SECTION
13.10(a) hereof.
(cxlvii) "IN EFFECT" when used with respect to a Sublease
means a Sublease, the term of which has commenced and under which rent has
become payable (or if not yet payable, will become payable upon expiration of a
rent abatement period provided for in such Sublease) regardless of whether the
space leased thereby is occupied by the Subtenant.
(cxlviii) "INITIAL CONSTRUCTION MORTGAGE" has the meaning set
forth in SECTION 1.1(a)(civ) hereof, the definition of Exempted Mortgage.
(cxlix) "INITIAL PERMANENT MORTGAGE" has the meaning set forth
in SECTION 1.1(a)(civ) hereof, the definition of Exempted Mortgage.
(cl) "INITIAL RESTORATION ESTIMATE" has the meaning set forth
in SECTION 11.1(d) hereof.
(cli) "INITIAL TAKING ESTIMATE" has the meaning set forth in
SECTION 12.3(c) hereof.
(clii) "ING CONSTRUCTION GUARANTY" means a Construction
Guaranty, by ING Vastgoed B B.V. in favor of 42DP in the form attached hereto as
EXHIBIT F.
(cliii) "INSURANCE GUARANTY" has the meaning set forth in
SECTION 10.9(a) hereof.
(cliv) "INSURANCE REQUIREMENTS" means all of the terms and
conditions of all insurance policies covering, related to or applicable to the
Project, all requirements of the issuers of such policies and all rules,
regulations, orders and other requirements or standards issued or
16
promulgated by the National or Regional Board of Fire Underwriters, the National
or Regional Fire Protective Association or any other national or regional body
in lieu of the foregoing exercising similar functions whose requirements or
standards must be complied with in order to obtain any governmental approval or
insurance policy required hereunder, and applicable to or affecting the Project
or the use and occupancy thereof.
(clv) "INTEREST RATE" means a rate equal to the lesser of (A)
three (3) percentage points over the Prime Rate or (B) the maximum rate
permitted by applicable law.
(clvi) "INTERIOR CONSTRUCTION WORK" means Construction Work
which (A) relates solely to interior spaces in the New Building, and (B) is not
governed by any element of the DUO (it being understood that the DUO may govern
certain interior spaces) and does not affect a Structural Component (other than
by having a Nonadverse Structural Effect).
(clvii) "ISSUING BANK" means any commercial bank reasonably
acceptable to Landlord.
(clviii) "LADA GUARANTY" means that certain Site 8 South LADA
Guaranty, dated as of the date hereof, by NYTC, in favor of 42DP and ESDC.
(clix) "LAND" means the parcels of land described in EXHIBIT G
attached hereto, together with all right, title and interest, if any, of
Landlord in and to any easements, licenses, privileges, rights and appurtenances
related thereto.
(clx) "LANDLORD" means 42DP, its successors and assigns.
(clxi) "LANDLORD'S OBLIGATIONS" has the meaning set forth in
SECTION 1.1(a)(cciii) hereof, the definition of Obligations.
(clxii) "LANDLORD'S TSF STATEMENT" has the meaning set forth
in SECTION 3.1(a)(i)(B)(3) hereof.
(clxiii) "LAST POSITIVE SPECIFIED INTERVAL" has the meaning
set forth in SECTION 1.1(a)(vii) hereof, the definition of Adjusted for
Inflation.
(clxiv) "LAWS AND REGULATIONS" means all federal, state,
county, municipal and other governmental statutes, laws, rules, orders, permits,
licenses, regulations and ordinances applicable to or affecting the Project,
this Lease, the Property or the use or occupancy thereof, or the owner thereof
as owner of the Property, whether now or hereafter enacted or in force, ordinary
or extraordinary, foreseen or unforeseen.
(clxv) "LEASE" has the meaning set forth in the preamble to
this Lease.
(clxvi) "LEASE ASSIGNMENT" has the meaning set forth in
SECTION 32.1(a)(ii) hereof.
(clxvii) "LEASE ASSIGNMENT DATE" has the meaning set forth in
SECTION 32.1(a)(iii) hereof
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(clxviii) "LEASE YEAR" means (A) in the event that the
Commencement Date does not occur on January 1, the period from the Commencement
Date through the second December 31 thereafter (such period, the "FIRST LEASE
YEAR"), and (B) each twelve (12) calendar month period commencing on the first
January 1 following the First Lease Year and on each anniversary thereof, and in
the case of the calendar year in which the term of this Lease shall expire, so
much of such calendar year as shall fall within the term of this Lease.
(clxix) "LEASE-UP COSTS" has the meaning set forth in EXHIBIT
K attached hereto.
(clxx) "LEGAL REQUIREMENTS" means all Laws and Regulations and
all Applicable Judgments.
(clxxi) "LENDING INSTITUTION" means (A) a savings bank,
savings and loan association, commercial bank or trust company (whether acting
individually or in a fiduciary capacity) or a Control Affiliate of the
foregoing, (B) an insurance company, (C) a real estate investment trust, a
trustee or issuer of collateralized mortgage obligations, a loan conduit, or
other similar investment entity which is listed on the New York, American Stock
Exchange or other regional exchange (or their respective successors), (D) a
federal, state, municipal or secular employee's welfare, benefit, pension or
retirement fund, a religious, educational or eleemosynary institution, any
governmental agency or entity insured by a governmental agency, a credit union,
trust or endowment, (E) any combination of the foregoing entities or (F) any
other Person approved by Landlord, such approval not to be unreasonably
withheld; provided that each of the above entities shall qualify as a Lending
Institution within the provisions of this definition only if it (1) shall have a
business office in Manhattan and be subject to the jurisdiction of the courts of
the State of New York, (2) shall be subject to the supervision of the
Comptroller of the Currency of the United States, the federal Securities and
Exchange Commission, the Insurance Department or the Banking Department or the
Comptroller of the State of New York, the Board of Regents of the University of
the State of New York, or the Comptroller of the City or any federal, state or
municipal agency or public benefit corporation or public authority advancing or
assuring mortgage loans or making payments which, in any manner, assist in the
financing, development, operation and maintenance of improvements, (3) shall
have a net worth of not less than One Hundred Million Dollars ($100,000,000) and
net assets of not less than Two Hundred Fifty Million Dollars ($250,000,000) (as
such amounts shall be Adjusted for Inflation on an annual basis from the
Commencement Date) at the time of the initial determination of its status as a
Lending Institution, (4) is not a Related Entity of Tenant, and (5) is not a
Prohibited Person. From and after Substantial Completion, "Lending Institution"
shall also include any Person that satisfies the conditions of clauses (1)
through (5) above notwithstanding that such Person does not constitute any of
the entities set forth in clauses (A) through (E) above.
(clxxii) "LETTER OF CREDIT" means a clean, irrevocable and
unconditional letter of credit, in form and content reasonably satisfactory to
Landlord, issued by and drawn upon any Issuing Bank.
(clxxiii) "LOBBY SUBLEASE SPACE" has the meaning set forth in
SECTION 34.1(c) hereof.
(clxxiv) "LOBBY SUBLEASE SPACE ADJUSTED GROSS REVENUES" has
the meaning set forth in SECTION 34.2(c) hereof.
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(clxxv) "MAJOR ALTERATION" has the meaning set forth in
SECTION 9.2(a) hereof.
(clxxvi) "MAJOR CONTRACTOR" has the meaning set forth in
SECTION 6.1(e)(iii) hereof.
(clxxvii) "MAJOR DECISIONS" means decisions with respect to
(A) the initial debt financing of the Project, (B) the refinancing of any debt
for the Project, (C) the development capital budget for the Project and any
increases therein, and (D) selection of the Project construction manager and/or
general contractor.
(clxxviii) "MANAGER" means the manager of any portion of the
Project under a management agreement.
(clxxix) "MINOR DEFAULT" means any non-monetary Default of
Tenant with respect to SECTIONS 33(c), 3.3(d), 3.3(e), 3.13(d), 3.15, 4.2(b),
4.3(a), 6.l(e)(iii) (as such Section relates to Tenant's failure to timely
submit a list of Major Contractors for approval or obtain approval by Landlord
of Major Contractors prior to Commencement of Construction of Tenant's
Construction Work), 73(a) (as such Section relates to Tenant's failure to comply
with the interim maintenance obligations set forth in SECTION 7.3(a) hereof, but
such Default shall be a Minor Default only if: (A) such Default would be either
cured or rendered moot by performance of Tenant's Construction Work and once
cured shall no longer be a Default in any case; and (B) the continued existence
of such Default is not creating a hazard to life, health and safety), 7.3(b) (as
such Section relates to Tenant's failure to comply with the maintenance
obligations set forth in SECTION 73(b) hereof during the performance of
Demolition Work, but such Default shall only be a Minor Default if: (A) such
Default would be either cured or rendered moot by performance of Tenant's
Construction Work and once cured shall no longer be a Default in any case and
(B) the continued existence of such Default is not creating a hazard to life,
health or safety) and 7.10 hereof and ARTICLE VIII hereof (as such Section
relates to Tenant's failure to comply with the maintenance obligations set forth
in ARTICLE XIII hereof during the performance of Demolition Work, but such
Default shall be a Minor Default only if: (A) such Default would be either cured
or rendered moot by performance of Tenant's Construction Work and once cured
shall no longer be a Default in any case and (B) the continued existence of such
Default is not creating a hazard to life, health or safety).
(clxxx) "MODIFICATION" has the meaning set forth in SECTION
13.9.
(clxxxi) "MORTGAGE" means any mortgage that constitutes a lien
on Tenant's interest in this Lease and the leasehold estate created hereby.
(clxxxii) "MORTGAGE RECORDING TAX" means any mortgage
recording tax under Article 11 of the New York State Tax Law, or any successor
statute thereto, as the same may now or hereafter be amended, and any New York
City mortgage recording tax.
(clxxxiii) "MORTGAGE RECORDING TAX SAVINGS" means any savings,
as provided in SECTION 3.4 hereof, realized by Tenant on account of Mortgage
Recording Tax.
(clxxxiv) "NEW BUILDING" has the meaning set forth in SECTION
1.1(a)(ccxl) hereof the definition of Project.
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(clxxxv) "NFP EVENT" has the meaning set forth in SECTION
30.4(b) hereof.
(clxxxvi) "NFP EVENT SHORTFALL" has the meaning set forth in
SECTION 30.4(b) hereof.
(clxxxvii) "NFP USER" has the meaning set forth in SECTION
30.4(b) hereof.
(clxxxviii) "NO-ACTION LETTER" means a "no-action letter"
issued by the New York State Department of Law to the effect that it will not
take any enforcement action because the formation of a condominium occurs
without filing or registration pursuant to Section 352-e and Section 359-e of
the General Business Law of the State of New York.
(clxxxix) "NON-DELIVERY EVENT" means any of the following: (A)
if the Delivery Date has not occurred by the twenty-four (24) month anniversary
of the date of this Agreement, then on the day following such day, the "FIRST
NON-DELIVERY EVENT" shall have occurred; (B) if the Delivery Date has not
occurred by the twenty-eight (28) month anniversary of the date of this
Agreement, then on the day following such day, the "SECOND NON-DELIVERY EVENT"
shall have occurred; (C) if the Delivery Date has not occurred by the thirty-two
(32) month anniversary of the date of this Agreement, then on the day following
such day, the "THIRD NON-DELIVERY EVENT" shall have occurred; and (D) if the
Delivery Date has not occurred by thirty-six (36) month anniversary of the date
of this Agreement, then on the day following such day, the "FOURTH NON-DELIVERY
EVENT" shall have occurred.
(cxc) "NON-VESTING DEADLINE" has the meaning set forth in
SECTION 2.1(b)(iii) hereof.
(cxci) "NON-VESTING TERMINATION NOTICE" has the meaning set
forth in SECTION 2.1(b)(iii) hereof.
(cxcii) "NONADVERSE STRUCTURAL EFFECT" means any effect of
Construction Work on any Structural Component that, taken together with the
totality of the remedial measures to be taken in respect of such Construction
Work, will not have more than an insignificant adverse effect on such Structural
Component at the completion of the Construction Work.
(cxciii) "NONDISTURBANCE AGREEMENT" has the meaning set forth
in SECTION 13.2(b) hereof.
(cxciv) "NON-RENEWAL NOTICE" has the meaning set forth in
SECTION 10.9(b) hereof.
(cxcv) "NYCEDC" means the New York City Economic Development
Corporation or any successor in function.
(cxcvi) "NYTC" means The New York Times Company.
(cxcvii) "NYTC COMPONENT" means that portion of the Property
that is leased pursuant to the NYTC Severance Sublease (including, without
limitation, the undivided interest of NYTC Member in the common areas of the
Property).
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(cxcviii) "NYTC CONSTRUCTION GUARANTY" means a Construction
Guaranty by NYTC in favor of 42DP in the form attached hereto as EXHIBIT F.
(cxcix) "NYTC FACILITY PERCENTAGE" shall mean the percentage
determined by dividing 900,000 by the number of Taxable Square Feet.
(cc) "NYTC FORM SUBLEASE" has the meaning set forth in SECTION
13.2(b)(ii)(A) hereof.
(cci) "NYTC MEMBER" means the tenant executing the NYTC
Severance Sublease and its permitted successors and assigns.
(ccii) "NYTC SEVERANCE SUBLEASE" means that certain NYTC
Severance Sublease, dated as of the date hereof, between Tenant and NYTC Member.
(cciii) "OBLIGATIONS", and words of like import, means
covenants to pay Charges and other sums payable hereunder and perform acts or
fulfill obligations hereunder, as applicable, and all of the other covenants,
agreements, terms, conditions, limitations, exceptions and reservations
contained in this Lease and the schedules and exhibits attached hereto. The
terms "TENANT'S OBLIGATIONS" and "LANDLORD'S OBLIGATIONS", and words of like
import, mean the Obligations of this Lease which are imposed upon and are to be
performed, observed or complied with by Tenant or by Landlord, as the case may
be.
(cciv) "OCCUPIED SQUARE FOOT" means (A) in respect of the NYTC
Component, each Rentable Square Foot within the NYTC Component, (B) in respect
of the FC Component, (1) as to any portion thereof with respect to which a
Sublease exists, each Rentable Square Foot (or its equivalent) of such portion
of the FC Component, as set forth in an applicable Sublease, and (2) as to any
portion thereof with respect to which no Sublease exists, each Rentable Square
Foot of such portion of the FC Component, as reasonably determined by Landlord,
(C) in respect of the Roof Top Garden Space, each Rentable Square Foot within
the Roof Top Garden Space and (D) in respect of the Lobby Sublease Space, each
Rentable Square Foot within the Lobby Sublease Space.
(ccv) "OFFICE PILOT" means (a) the rate set forth under
"Office PILOT" on SCHEDULE 1 attached hereto multiplied by (b) the number of
Taxable Square Feet exclusive of any Taxable Square Feet with respect to which
Retail PILOT is being paid.
(ccvi) "OFFICE SPACE" means all Taxable Square Feet other than
that which is attributable to the Retail Space.
(ccvii) "ONGOING PREDELIVERY COSTS" has the meaning set forth
in the Site 8 South LADA.
(ccviii) "OPERATIVE AGREEMENTS" means (A) all Condominium
Documents, (B) the applicable building management agreement, and (C) any
agreement or agreements for construction management, general contracting or
similar services in respect of Tenant's Construction Work.
(ccix) "ORGANIZED CRIME FIGURE" means any Person (A) who has
been convicted in a criminal proceeding for a felony or any crime involving
moral turpitude or that is an
21
organized crime figure or is reputed to have substantial business or other
affiliations with an organized crime figure, or (B) who, directly or indirectly
controls, is controlled by, or is under common control with, a Person who has
been convicted in a criminal proceeding for a felony or any crime involving
moral turpitude or that is an organized crime figure or is reputed to have
substantial business or other affiliations with an organized crime figure. The
determination as to whether any Person is an organized crime figure or is
reputed to have substantial business or other affiliations with an organized
crime figure shall be within the sole discretion of Landlord, which discretion
shall be exercised in good faith; PROVIDED, HOWEVER, that such Person shall not
be deemed a Prohibited Person if the City, having actual knowledge that such
Person meets the criteria set forth in clauses (A) or (B) above of this
definition, entered into a contract and is then doing business with such Person.
(ccx) "OVERDUE PAYMENT" has the meaning set forth in SECTION
3.7(c) hereof.
(ccxi) "PA EFFECTIVE DATE" has the meaning set forth in
SECTION 30.4(b) hereof.
(ccxii) "PA NFP OPERATING COSTS" has the meaning set forth in
SECTION 30.4(b) hereof.
(ccxiii) "PA OBLIGATION TERM" has the meaning set forth in
SECTION 30.4(b) hereof.
(ccxiv) "PA OBLIGATION TERMINATION DATE" has the meaning set
forth in SECTION 30.4(b) hereof.
(ccxv) "PA OPENING DATE" has the meaning set forth in SECTION
30.4(b) hereof.
(ccxvi) "PA PILOT REDUCTION" has the meaning set forth in
SECTION 30.4(e)(i) hereof.
(ccxvii) "PA RETAIL ADJUSTED GROSS REVENUES" means all (A)
revenues, receipts and income of whatever kind and nature of Tenant or any
Related Entity, as determined in accordance with Accounting Principles, in any
Lease Year, generated from the ownership, operation, leasing, use or occupancy
of any PA Retail Space (but only if the PA Retail Space equals or exceeds 5,000
Square Feet) including (1) license fees or other amounts received from any
subtenant of such PA Retail Space or its affiliate for the right to maintain
signage on the facade of the New Building (but not from the granting of such
signage rights to any third party), (2) rentals, fees or other payments from
Subtenants (subject to clause (9) below), including any common area maintenance
and operating expense, but specifically excluding payments received in
reimbursement of utility, PILOT, Theater Surcharge or BID payments made by
Tenant, or any Related Entity, (3) the proceeds of insurance received by Tenant
with respect to business interruption or rent insurance (but not liability or
casualty insurance received by Tenant), (4) security and other deposits which
secure other revenues, receipts or income qualifying as PA Retail Adjusted Gross
Revenues when and to the extent Tenant, after the final resolution of any
Subtenant dispute over whether Tenant has the right to retain such security and
other deposits, either has the right to retain the same or Tenant has no
obligation to refund the same (and excluding security and other deposits to the
extent applied by
22
Tenant to reimburse Tenant for reasonable costs incurred in remedying a
non-monetary default by the provider of such security or deposit), (5) interest
or other investment income earned from time to time by Tenant on deposits or
other revenues, receipts or income qualifying as PA Retail Adjusted Gross
Revenues, (6) amounts recovered in any legal action or proceeding or settlement
thereof which reimburses Tenant for a loss of revenues, receipts or income
qualifying as PA Retail Adjusted Gross Revenues (and excluding any such amounts
to the extent reimbursing Tenant for reasonable costs incurred in remedying a
non-monetary default by the defendant in such action), (7) construction fees
from the performance by Tenant or any Related Entity of construction or
construction management services for Subtenants, but only to the extent such
fees exceed customary amounts (and excluding such fees to the extent they do not
exceed such customary amounts), (8) leasing or brokerage commissions paid to
Tenant or any Related Entity in connection with the entering into of a Sublease
or the renewal thereof or the expansion of the Demised Space thereunder, but
only to the extent Tenant or such Related Entity is not the procuring broker, or
if Tenant or such Related Entity is the procuring broker, only to the extent
such commissions exceed customary amounts (and excluding such commissions to the
extent they do not exceed such customary amounts), and (9) with respect to any
Related Entity that is a Subtenant in possession and actual use of its Demised
Space, the greater of [a] the rentals, fees or other payments made to Tenant by
such Subtenant, including any common area maintenance and operating expense, but
specifically excluding payments received in reimbursement of utility, PILOT,
Theater Surcharge or BID payments made by Tenant and [b] the fair market rental
value of such Demised Space (and with respect to a Related Entity that is a
Subtenant not in possession and actual use of its Demised Space, all revenues,
receipts and income of whatever kind and nature of such Related Entity generated
from the Project, as provided above, shall be included in PA Retail Adjusted
Gross Revenues) less (B) refunds made upon transactions included within the
revenues described in clause (A) above. "PA Retail Adjusted Gross Revenues"
shall not include any management fee in a customary amount paid by Tenant to any
Related Entity to manage the Property.
(ccxviii) "PA RETAIL SPACE" means any portion of the Property
to be used for retail purposes or any purposes ancillary thereto which is
located within, and ancillary to, the Public Amenity (it being understood and
agreed that, for purposes only of computing Percentage Rent, if the PA Retail
Space is less than 5,000 Square Feet, then the area of all of the PA Retail
Space shall not be considered "PA Retail Space" for such purposes, and if the PA
Retail Space equals or exceeds 5,000 Square Feet, the area of all of the PA
Retail Space shall be considered "PA Retail Space" for such purposes).
Notwithstanding anything to the contrary herein, the Gallery and the Auditorium
shall not constitute PA Retail Space so long as any concessions or other retail
operations conducted therein are incidental or ancillary to, and are associated
with, the occurrence of Events in the Public Amenity.
(ccxix) "PA YEAR" has the meaning set forth in SECTION 30.4(b)
hereof.
(ccxx) "PERCENTAGE RENT" means the amounts payable by Tenant
pursuant to SECTIONS 3.2 and 34.3(c) hereof.
(ccxxi) "PERCENTAGE RENT REPORT" has the meaning set forth in
SECTION 3.2(c) hereof.
(ccxxii) "PERMITTED DEVELOPER" means a legal entity composed
only of (A) NYTC or its wholly-owned, single-purpose Control Affiliates, and/or
(B) FC or its single-purpose Control Affiliates, and/or (C) Equity Investor or
its wholly-owned, single-purpose Control Affiliates.
23
(ccxxiii) "PERMITTED DISPOSITION" has the meaning set forth in
SECTION 13.10(d) hereof.
(ccxxiv) "PERMITTED ENCUMBRANCES" means (A) the matters
described in EXHIBIT H attached hereto and (B) any other encumbrance on the
Property expressly agreed to in writing by all parties hereto and any violation
that will, by its nature, be cured or otherwise rendered inconsequential due to
the demolition of the Existing Improvements.
(ccxxv) "PERMITTED TRANSFEREE" means a Person who (A) either
(1) directly and/or together with its Control Affiliates, owns and/or manages,
and has not less than five (5) years' experience in the ownership and/or
management of, at least five million (5,000,000) square feet of office space or
(2) retains a qualified manager having the qualifications set forth in clause
(A)(1), above, (B) is of sufficient financial condition to perform the
obligations to be assumed by such proposed assignee (Landlord having been
furnished with evidence reasonably satisfactory to Landlord of such financial
condition) and (C) is not a Prohibited Person.
(ccxxvi) "PERMITTED USE" has the meaning set forth in SECTION
7.1(a) hereof.
(ccxxvii) "PERSON" means (A) an individual, corporation,
limited liability company, partnership, joint venture, estate, trust,
unincorporated association or other entity, (B) any federal, state, county or
municipal government (or any bureau, department, agency or instrumentality
thereof), and (C) any fiduciary acting in such capacity on behalf of any of the
foregoing.
(ccxxviii) "PILOMRT" means the payments in lieu of Mortgage
Recording Tax payable by Tenant to Landlord pursuant to SECTION 3.4(b) hereof.
(ccxxix) "PILOST" means payments in lieu of sales and
compensating use taxes payable by Tenant to Landlord pursuant to SECTION 3.3
hereof.
(ccxxx) "PILOST AMOUNT" has the meaning set forth in SECTION
3.3(b) hereof.
(ccxxxi) "PILOT" means the payments in lieu of real estate
taxes payable by Tenant to Landlord pursuant to SECTION 3.1 hereof.
(ccxxxii) "PILOT YEAR" means (A) in the event that the
Delivery Date does not occur on January 1, the period from the Delivery Date
through the second December 31 thereafter (such period, the "First PILOT Year"),
and (B) each twelve (12) calendar month period commencing on the first January 1
following the First PILOT Year and on each anniversary thereof.
(ccxxxiii) "POSSESSION" means good and indefeasible leasehold
title to, and actual vacant occupancy and possession of, all of the Property,
free and clear of all leases, licenses, tenancies, occupancies, liens or other
similar encumbrances, and any claims to or rights of others attaching to the
Property, except Permitted Encumbrances.
(ccxxxiv) "PRIME RATE" means the fluctuating annual interest
rate announced publicly by Citibank, N.A., or any successor, at its headquarters
in New York City, as its base commercial lending rate, as the same may change
from time to time.
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(ccxxxv) "PRINCIPAL" means, with respect to any Person, (A)
any director or the president, any vice president, the treasurer, or the
secretary thereof if such Person is a corporation, (B) any general partner of a
partnership or managing member of a limited liability company, or (C) any
shareholder, limited partner, member or other Person having a direct or indirect
economic interest in such Person, whether beneficially or of record, in excess
of ten percent (10%) of all of the issued and outstanding shares, partnership
interests, limited liability company interests or other ownership interests of
such Person. In calculating the percentage interest of any shareholder, partner,
member or other beneficially interested Person referred to in the prior
sentence, the interest in the equity of any affiliate of such shareholder,
partner, member or beneficially interested Person shall be attributed to such
shareholder, partner, member or beneficially interested Person.
(ccxxxvi) "PRO RATA COST" has the meaning set forth in SECTION
30.4(b)(xiii) hereof.
(ccxxxvii) "PROCEEDING" has the meaning set forth in the Site
8 South LADA.
(ccxxxviii) "PRODUCTION ARCHITECT" means any Architect
proposed by Tenant and approved (or deemed approved) by Landlord pursuant to
SECTION 6.1(d)(ii) hereof as the production architect working in affiliation
with the Design Architect.
(ccxxxix) "PROHIBITED PERSON" means (A) any Person (1) that is
in default after notice and beyond any applicable cure period, of such Person's
obligations under any material written agreement with the City, the State or any
of their instrumentalities, or (2) that directly controls, is controlled by, or
is under common control with a Person that is in default after notice and beyond
any applicable cure period, of such Person's obligations under any material
written agreement with the City, the State or any of their instrumentalities,
unless, in each instance, such default or breach either (x) has been waived in
writing by the City, the State or any of their instrumentalities as the case may
be or (y) is being disputed in a court of law, administrative proceeding,
arbitration or other forum or (z) is cured within thirty (30) days after a
determination and notice to Tenant from Landlord that such Person is a
Prohibited Person as a result of such default; (B) any Person that is an
Organized Crime Figure; (C) any government, or any Person that is directly or
indirectly controlled (rather than only regulated) by a government, that is
finally determined to be in violation of (including, but not limited to, any
participant in an international boycott in violation of) the Export
Administration Act of 1979, as amended, or any successor statute, or the
regulations issued pursuant thereto, or any government that is, or any Person
that, directly or indirectly, is controlled (rather than only regulated) by a
government that is subject to the regulations or controls thereof; (D) any
government, or any Person that, directly or indirectly, is controlled (rather
than only regulated) by a government, the effects or the activities of which are
regulated or controlled pursuant to regulations of the United States Treasury
Department or executive orders of the President of the United States of America
issued pursuant to the Trading with the Enemy Act of 1917, as amended; (E) any
Person that is in default in the payment to the City of any real estate taxes,
sewer rents or water charges totaling more than $10,000, unless such default is
then being contested in good faith in accordance with applicable Legal
Requirements or unless such default is cured within thirty (30) days after a
determination and notice to Tenant from Landlord that such Person is a
Prohibited Person as a result of such default; or (F) any Person (1) that has
solely owned, at any time during the 3-year period immediately preceding a
determination of whether such Person is a Prohibited Person, any property which,
while in the ownership of such Person, was acquired by the City by in rem tax
foreclosure, other than a property in which the City has released or is in the
process of releasing its
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interest pursuant to the Administrative Code of the City, or (2) that, directly
or indirectly controls, is controlled by, or is under common control with a
person that has owned, at any time in the 3-year period immediately preceding a
determination of whether such Person is a Prohibited Person, any property which,
while in the ownership of such person, was acquired by the City by in rem tax
foreclosure, other than a property in which the City has released or is in the
process of releasing its interest to such person pursuant to the Administrative
Code of the City.
(ccxl) "PROJECT" means the design, construction and operation,
in accordance with the DUO and the other terms of this Lease, on the Land, of
improvements to include, without limitation: (A) an up to approximately 780 foot
tall office building (the "NEW BUILDING") to be occupied, in whole or in part,
by NYTC, having a floor area of (1) up to 1,380,000 square feet (it being
acknowledged and agreed that no subway entrance located on the property shall be
deemed to be included in such 1,380,000 Square Feet) plus (2) the Discretionary
Inside Mechanical Space plus (3) the Roof Top Mechanical Space, which New
Building will contain, inter alia, (i) Retail Space at least on the ground
floor, (ii) the Public Amenity, and (iii) signage in accordance with the DUO,
and may, at Tenant's election, contain the Roof Top Garden Space and the Roof
Top Garden Improvements; and (B) Tenant's Subway Improvements; PROVIDED,
HOWEVER, that if the Third Non-Delivery Event shall have occurred, then upon the
receipt of written notice from Tenant to Landlord of its election to modify the
floor area of the New Building, the aforesaid 1,380,000 Square Feet and all
references to the 1,380,000 Square Foot floor area in this Lease shall be
deemed, for all purposes of this Lease, to be a reference to such lesser floor
area indicated by Tenant in such notice (such area to be not less than a number
of Square Feet equal to the sum of (a) 1,020,000 and (b) the product of (I)
60,000 and (II) a fraction, the numerator of which is such lesser floor area and
the denominator of which is 1,380,000 (such product, the "ADJUSTED DIMS")).
(ccxli) "PROJECT AGREEMENT" means that certain Site 8 South
Project Agreement, dated as of the date hereof, by and among ESDC, 42DP, the
City, Tenant, FC Member and NYTC Member, and any amendments thereto.
(ccxlii) "PROJECT COMPONENT" means each of the FC Component,
the NYTC Component, the Roof Top Garden Space and the Lobby Sublease Space, if
any.
(ccxliii) "PROJECT DOCUMENTS" means (A) all those documents
listed on EXHIBIT A attached hereto, and (B) from and after their execution and
delivery, the Construction Guaranties.
(ccxliv) "PROJECT PARTICIPANTS" means (A) Tenant and Control
Affiliates of Tenant, (B) the Condominium Association, if any, of the New
Building, (C) any Manager, and (D) the construction manager and/or general
contractor (or other entities serving such purpose) for all aspects of Tenant's
Construction Work.
(ccxlv) "PROPERTY" means the Land and the Improvements.
(ccxlvi) "PUBLIC AMENITY" has the meaning set forth in SECTION
30.4(a) hereof.
(ccxlvii) "PUBLIC AMENITY SPACE" has the meaning set forth in
SECTION 30.4(b)(xiv) hereof.
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(ccxlviii) "PUBLIC CONDEMNATION COSTS" has the meaning set
forth in SECTION 2.1(b)(iii) hereof.
(ccxlix) "PUBLIC PARTIES" means 42DP, ESDC, the City and
NYCEDC.
(ccl) "PUBLIC PARTY EXPENSES" has the meaning set forth in the
Site 8 South LADA.
(ccli) "PURCHASE OPTION" has the meaning set forth in SECTION
5.1(a) hereof.
(cclii) "PURCHASE OPTION CLOSING DATE" has the meaning set
forth in SECTION 5.1(a) hereof.
(ccliii) "PURCHASE OPTION NOTICE" has the meaning set forth in
SECTION 5.1(a) hereof.
(ccliv) "PURCHASE PRICE" means Ten Dollars ($10).
(cclv) "QUALIFIED CERTIFYING PARTY" means with respect to any
Person that is a partnership or limited liability company, a member or general
partner thereof, or in the case of a Person or general partner that is a
corporation, the President, Vice President, Chief Financial Officer or Treasurer
of such Person or general partner.
(cclvi) "REAL ESTATE TAX METHODOLOGY CHANGES" has the meaning
set forth in SECTION 3.1(a)(i)(C) hereof.
(cclvii) "RECOGNITION AGREEMENT (PUBLIC PARTIES)" means that
certain Recognition Agreement (Public Parties), dated as of the date hereof, by
and among INGREDUS Site 8 SOUTH LLC, ING Vastgoed B B.V., FC 41st Street
Associates, LLC, FC Lion LLC, Tenant, Forest City Xxxxxx Companies, ESDC and
42DP.
(cclviii) "RECOGNIZED MORTGAGE" means a Mortgage (A) that is
held by a Lending Institution, (B) that complies with the provisions of this
Lease, and (C) a copy of which has been delivered to Landlord, together with a
certification of a Qualified Certifying Party of Tenant confirming that the copy
is a true and complete copy of such Mortgage and giving the name and address of
the mortgagee thereunder.
(cclix) "RECOGNIZED MORTGAGEE" means the holder of a
Recognized Mortgage.
(cclx) "RELATED ENTITY" means, as to any Person, any other
Person that controls, is controlled by, or is under common control with, such
Person; for the purposes of this definition, "control" (and its correlative
meanings, "controlled by" and "under common control with"), means (A) direct or
indirect ownership of more than fifty percent (50%) of the outstanding voting
capital stock of a corporation or more than fifty percent (50%) of the
beneficial interests of any other entity or (B) the possession, directly or
indirectly, of the power to direct or cause the direction of the business
decisions of such corporation or other entity.
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(cclxi) "RENTABLE SQUARE FEET" or "RENTABLE SQUARE FOOT" means
rentable square footage of the Improvements, as determined in accordance with
the Standard Method for Measuring Floor Area in Office Buildings ANSI
Z65.1-1996), as promulgated by the Building Owners and Managers Association
(BOMA) International or any successor entity.
(cclxii) "REPLACEMENT DESIGN ARCHITECT" has the meaning set
forth in SECTION 6.1(d)(i) hereof
(cclxiii) "REPLACEMENT DESIGN ARCHITECT APPROVAL CRITERIA" has
the meaning set forth in SECTION 6.1(d)(i) hereof.
(cclxiv) "RESTORATION" has the meaning set forth in SECTION
11.1(a) hereof.
(cclxv) "RESTORATION FUNDS" has the meaning set forth in
SECTION 11.2(a) hereof.
(cclxvi) "RESTORE" has the meaning set forth in SECTION
11.1(a) hereof.
(cclxvii) "RETAIL PILOT" means (A) the rate set forth under
"Retail PILOT" in SCHEDULE 1 attached hereto multiplied by (B) the sum of (1)
the number of gross square feet of above-grade Retail Space, (2) the number of
gross square feet of below-grade Revenue Producing Retail Space for which a
Taxable Square Feet Delivery Date has occurred, (3) 10,000 Square Feet,
representing the Roof Top Garden Space and (4) if and for so long as the Lobby
Sublease Space is used for retail purposes, the number of gross square feet of
the Lobby Sublease Space (collectively "TAXABLE RETAIL SQUARE FEET").
(cclxviii) "RETAIL SPACE" means any portion of the Property to
be used for retail purposes or any purposes ancillary thereto (other than the PA
Retail Space).
(cclxix) "REVENUE-PRODUCING RETAIL SPACE" means that portion
of the Retail Space leased or otherwise demised to a Subtenant, which space is
being used for the selling of goods, merchandise or services.
(cclxx) "ROOFTOP GARDEN ADJUSTED GROSS REVENUES" has the
meaning set forth in SECTION 34.2(d) hereof.
(cclxxi) "ROOF TOP GARDEN IMPROVEMENTS" means an open air
garden on the 53rd floor of the New Building (as shown on the Schematic Design
Plans set forth on EXHIBIT I-2 attached hereto) approximately in the
configuration as shown on Schematic Design Plan drawing number A1053 listed on
Exhibit I-1 attached hereto.
(cclxxii) "ROOFTOP GARDEN SPACE" has the meaning set forth in
SECTION 34.1(b) hereof.
(cclxxiii) "ROOF TOP MECHANICAL SPACE" means all the
mechanical space located on and above the 52nd floor of the New Building (as
shown in the Schematic Design Plans set forth on EXHIBIT I-2 attached hereto)
(it being understood that the space on and above such 52nd floor of the New
Building shall only be used for (A) housing of mechanical equipment, (B) siting
of the Roof Top Garden Space and (C) the development of the Roof Top Garden
Improvements.
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(cclxxiv) "SALES TAX SAVINGS" means the Sales Tax savings
realized by tenant, pursuant to SECTION 3.3 hereof.
(cclxxv) "SALES TAX SAVINGS REPORT" has the meaning set forth
in SECTION 3.3(d) hereof.
(cclxxvi) "SALES TAXES" means the Xxx Xxxx Xxxx xxx Xxx Xxxx
Xxxxx sales and/or compensating use taxes imposed pursuant to Sections 1105,
1107, 1109 and 1110 of the New York State Tax Law, as each of the same may be
amended from time to time (including any successor provisions to such statutory
sections).
(cclxxvii) "SCHEDULED EXPIRATION DATE" means the date set
forth in SECTION 2.1(b) hereof as the originally scheduled Expiration Date.
(cclxxviii) "SCHEDULED PILOT CONVERSION DATE" means the
twenty-ninth (29th) anniversary of the first December 31 after the Delivery
Date.
(cclxxix) "SCHEMATIC DESIGN PLANS" means those certain
schematic design plans relating to Tenant's Construction Work listed on Exhibit
I-1 attached hereto (a copy of which Schematic Design Plans has been provided to
Landlord) and the table of areas set forth on EXHIBIT I-2 attached hereto.
(cclxxx) "SECOND EXTENSION PERIOD" has the meaning set forth
in SECTION 6.1(c)(ii) hereof.
(cclxxxi) "SECOND NON-DELIVERY EVENT" has the meaning set
forth in SECTION 1.1(a)(clxxxix) hereof, the definition of Non-Delivery Event.
(cclxxxii) "SECOND PA EXTENSION" has the meaning set forth in
SECTION 30.4(d)(i)(B)(2) hereof.
(cclxxxiii) "SECTION 2.1 LETTER OF CREDIT" has the meaning set
forth in SECTION 2.1(b)(iii) hereof.
(cclxxxiv) "SECTION 6.1(b)(ii) EXTENSION PERIOD" has the
meaning set forth in SECTION 6.1(b)(ii) hereof.
(cclxxxv) "SECURITY DEPOSIT" has the meaning set forth in
SECTION 10.9(a) hereof.
(cclxxxvi) "SEVERANCE SUBLEASES" means the NYTC Severance
Sublease and the XX Xxxxxxxxx Subleases.
(cclxxxvii) "SEVERANCE TENANT" means the lessee under a
Severance Sublease.
(cclxxxviii) "SITE 8 SOUTH LADA" means that certain Site 8
South Land Acquisition and Development Agreement, dated as of the date hereof,
entered into by 42DP, NYCEDC and Tenant, together with the LADA Guaranty.
29
(cclxxxix) "SITE 8 SOUTH SUBWAY AGREEMENT" means that certain
Agreement, dated as of the date hereof, among Landlord, The New York City
Transit Authority, Tenant and The City of New York.
(ccxc) "SITE ACQUISITION COSTS" has the meaning set forth in
the Site 8 South LADA.
(ccxci) "SQUARE FEET" or "Square Foot" means square footage
computed with reference to the gross square footage of the New Building, above
grade, measured from the outside of the exterior walls for each floor and
including, without limitation, mechanical space (other than the Roof Top
Mechanical Space), floor cutouts for ducts, interior partition walls and loading
areas. Because the New Building will include a double curtain wall (i.e., an
interior glass curtain wall and an exterior screen curtain wall), "exterior
walls" for purposes of this definition means the inner glass curtain wall of the
New Building, as long as and to the extent that there is no usable floor area
between the two components of the curtain wall.
(ccxcii) "STABILIZED LEASE YEAR" has the meaning set forth in
SECTION 143(g) hereof
(ccxciii) "STRUCTURAL ALTERATION" has the meaning set forth in
SECTION 9.2(a) hereof.
(ccxciv) "STRUCTURAL COMPONENT" means, in respect of the New
Building, (A) the roof, (B) exterior walls and (C) any load-bearing member,
including load-bearing columns and slabs.
(ccxcv) "SUBLEASE" means any sublease, sub-sublease, license,
concession, occupancy or other agreement, other than the NYTC Severance Sublease
and the XX Xxxxxxxxx Subleases, pursuant to which a Subtenant occupies or
otherwise uses all or any portion of the Property.
(ccxcvi) "SUBMISSION DATE" has the meaning set forth in
SECTION 16.2(b)(iv) hereof.
(ccxcvii) "SUBSTANTIAL CASUALTY" means a Casualty that would
require a Restoration the cost of which is greater than eighty percent (80%) of
the replacement cost of the New Building.
(ccxcviii) "SUBSTANTIAL COMPLETION" or "SUBSTANTIALLY
COMPLETE(D)" means that (A) the Core and Shell has been completed in substantial
conformity with the Final Plans and Specifications therefor and the Design
Architect has delivered to Landlord a certification of such completion in
accordance with SECTION 6.3(c)(i) hereof, subject to completion of "punch list"
items, and (B) subject to SECTION 6.6(c) hereof, the New York City Department of
Buildings or any successor agency of comparable function has issued, pursuant to
Section 1804 of the New York City Charter, or any successor statute of similar
import, either temporary or permanent certificates of occupancy for the Core and
Shell.
30
(ccxcix) "SUBSTANTIAL COMPLETION DATE" means the earlier to
occur of (A) the Fixed Substantial Completion Date, as the same may be extended
by Unavoidable Delays, and (B) the date upon which actual Substantial Completion
is achieved.
(ccc) "SUBSTANTIALLY ALL OF" has the meaning set forth in
SECTION 12.1(a) hereof.
(ccci) "SUBTENANT" means any space tenant, subtenant,
operator, licensee, franchisee, concessionaire or other occupant of the Property
(or any portion thereof), other than the Severance Tenants.
(cccii) "TAKING" means, other than in respect of the
Condemnation, a taking, or voluntary conveyance, of title to, or any interest
in, the Property, or any part thereof, or of the right to use all or any part
thereof pursuant to, as a result of, in lieu of or in anticipation of the
exercise of the right of condemnation, expropriation or eminent domain, and upon
such a Taking, the Property, or such part thereof, shall be deemed to have been
"taken".
(ccciii) "TAXABLE RETAIL SQUARE FEET" has the meaning set
forth in SECTION 1.1(a)(cclxvii) hereof, the definition of Retail PILOT.
(ccciv) "TAXABLE SQUARE FEET" means, as determined pursuant to
SECTION 3.1(a)(i)(B) hereof, the sum of (A) 1,370,000 Square Feet (as adjusted,
if necessary after the occurrence of the Third Non-Delivery Event, in accordance
with SECTION 1.1(a)(clxxxix) hereof), (B) the number of Square Feet of
Discretionary Inside Mechanical Space actually constructed by Tenant, (C) the
number of below-grade Taxable Retail Square Feet and (D) the number of Square
Feet comprising the Roof Top Garden Space; "Taxable Square Feet" explicitly
excludes the Roof Top Mechanical Space.
(cccv) "TAXABLE SQUARE FEET DELIVERY DATE" means, with respect
to any Sublease of Retail Space, the earlier to occur of (A) the date the
applicable sublease premises is delivered to such Subtenant for the build out of
such premises and (B) the date that rent commences pursuant to such Sublease
(excluding any payment of first month's rent made upon execution of such
Sublease until applied in accordance with such Sublease).
(cccvi) "TENANT" has the meaning set forth in the preamble to
this Lease.
(cccvii) "TENANT'S CONSTRUCTION WORK" means the construction
of the Core and Shell.
(cccviii) "TENANT'S OBLIGATIONS" has the meaning set forth in
SECTION 1.1(a)(cciii) hereof, the definition of Obligations.
(cccix) "TENANT'S SUBLET NOTICE" has the meaning set forth in
SECTION 13.2(b)(vii) hereof.
(cccx) "TENANT'S SUBWAY IMPROVEMENTS" has the meaning set
forth in SECTION 6.6 hereof.
(cccxi) "TENANT'S TRANSFER BASIS" has the meaning set forth in
SECTION 13.1(i)(iii) hereof.
31
(cccxii) "TENANT'S TSF CERTIFICATION" has the meaning set
forth in SECTION 3.1(a)(i)(B)(2) hereof.
(cccxiii) "TERMINATION NOTICE" has the meaning set forth in
SECTION 14.2 hereof.
(cccxiv) "THEATER MANAGEMENT ENTITY" means The New 42nd
Street, Inc. or any other not-for-profit organization which promotes, operates
and/or oversees one or more historic theaters within the 00xx Xxxxxx Project.
(cccxv) "THEATER SURCHARGE" has the meaning set forth in
SECTION 3.5(a) hereof.
(cccxvi) "THEATER SURCHARGE COMMENCEMENT DATE" has the meaning
set forth in SECTION 3.5(b) hereof.
(cccxvii) "THEATER SURCHARGE REPORT" has the meaning set forth
in SECTION 3.5(d) hereof.
(cccxviii) "THIRD NON-DELIVERY EVENT" has the meaning set
forth in SECTION 1.1(a)(clxxxix) hereof, the definition of Non-Delivery Event.
(cccxix) "TRANSACTION PRICE" means $85,560,000.
(cccxx) "TOTAL SAC AMOUNT" means the total of all Site
Acquisition Costs.
(cccxxi) "TOTAL TAXABLE SQUARE FEET CERTIFICATE" means a
certification, delivered by Tenant, setting forth as of the Lease Assignment
Date (A) the Total Taxable Square Feet (as defined in the Severance Sublease) of
the Improvements, and (B) the Taxable Square Feet (as defined in each Severance
Sublease) comprising the Demised Premises under each Severance Sublease, which
shall be comprised of (1) the number of Taxable Square Feet, above-grade,
situated within the applicable Demised Premises, (2) an amount equal to the
product of (a) the number of Square Feet comprising the Common Elements (as
defined in each Severance Sublease) and (b) a percentage equal to the Common
Interest (as defined in the Condominium Declaration) attributed to the
condominium unit comprising the applicable Demised Premises (such product, the
"ALLOCATED SQUARE FEET"), (3) any then-identified below-grade Taxable Retail
Square Feet, and (4) the Square Feet comprising the Roof Top Garden Space.
(cccxxii) "TRANSFER" has the meaning set forth in SECTION
13.1(a) hereof.
(cccxxiii) "UNAVOIDABLE DELAY(S)" means actual delays (after
taking into account all reasonable measures that are taken or should reasonably
have been taken by Tenant to mitigate the effect of the following) caused by (A)
acts of God, war, sabotage, hostilities, invasion, insurrection, riot, mob
violence, malicious mischief, embargo, enemy action, civil commotion,
earthquake, flood, fire or other casualty, government restriction, strikes,
labor troubles, unknown physical conditions which differ materially from those
ordinarily found to exist and generally recognized as inherent in the
construction of office building in Manhattan and inability to procure labor,
equipment, materials or supplies (exclusive of delays inherent in the ordering
of long-lead items) which are not attributable to the improper acts or omissions
of Tenant or its affiliates, (B) any litigation (not instituted, financed or
supported by any of Tenant, NYTC, FC, an Equity Investor or
32
any of their Related Entities) which results in an injunction prohibiting or
otherwise delaying the Commencement of Construction of Tenant's Construction
Work or the continuation of such Construction Work, and (C) any other matter
beyond the reasonable control of Tenant and not normally associated with a
project of the nature described herein. Inability (1) to pay a sum of money or
(2) to obtain or to timely obtain (a) any permits or certificates from
applicable governmental authorities or (b) financing from a lender, shall not
constitute Unavoidable Delay. The period of delay caused by any occurrence of
Unavoidable Delay shall not be deemed to commence any earlier than ten (10) days
before the date Landlord receives notification from Tenant of such occurrence;
PROVIDED, HOWEVER, that no such notification shall be valid unless Tenant shall
substantiate the basis for any claim of Unavoidable Delay made therein to the
reasonable satisfaction of the Public Parties within twenty (20) days
thereafter. Tenant shall advise Landlord in such notice as to the measures taken
or proposed to be taken by Tenant to mitigate the delay caused by such
occurrence of Unavoidable Delay and thereafter to keep Landlord reasonably
informed as to the status of such measures, and notify Landlord as to the
termination of the occurrence of Unavoidable Delay within ten (10) days
thereafter; PROVIDED, HOWEVER, Tenant's failure to provide any such notice of
termination shall not prejudice Tenant's rights to claim Unavoidable Delay.
(cccxxiv) "VACANT EXISTING IMPROVEMENTS" has the meaning set
forth in SECTION 6.5(c) hereof.
(cccxxv) "VENUE" has the meaning set forth in SECTION
30.4(b)(xv) hereof.
(cccxxvi) "VERIFIED STATEMENT" means a statement in reasonable
detail and in a reasonable form, as prescribed by Landlord, prepared in a
consistent manner and certified as being true, correct and complete by a
Qualified Certifying Party or the Certified Public Accountants, unless such
statement pertains to an annual (or longer) period, in which case it shall be so
certified by both a Qualified Certifying Party and the Certified Public
Accountants.
(cccxxvii) "VESTING DATE" means the date ESDC acquires title
to, and (subject to occupants in possession) the right to legal possession of,
all of the parcels and improvements within the Property.
(cccxxviii) "ZONING RESOLUTION" means the Zoning Resolution of
The City of New York or any successor statute, as the same may be amended or
otherwise modified.
SECTION 1.2 RULES OF CONSTRUCTION. The following rules of
construction shall be applicable for all purposes of this Lease and all
agreements supplemental hereto, unless the context otherwise requires:
(a) The terms "HEREBY", "HEREOF", "HERETO", "HEREIN", "HEREUNDER"
and any similar terms shall refer to this Lease, and "HEREAFTER" shall mean
after, and "HERETOFORE" shall mean before, the date of this Lease.
(b) Words of the masculine, feminine or neuter gender shall mean and
include the correlative words of the other genders and words importing the
singular number shall mean and include the plural number and vice versa.
(c) The terms "INCLUDE", "INCLUDING" and similar terms shall be
construed as if followed by the phrase "without being limited to".
33
(d) This Lease shall be governed by, and construed in accordance
with, the law of the State of New York applicable to agreements to be performed
wholly within such State.
(e) Whenever a party hereto "shall" perform (or cause to be
performed) any Obligations hereunder, such performance shall be at such party's
sole cost and expense unless otherwise expressly provided.
SECTION 1.3 CAPTIONS/TABLE OF CONTENTS. THE captions under the
article and section numbers and the table of contents of this Lease are for
convenience and reference only and in no way define, limit or describe the scope
or intent of this Lease nor in any way affect this Lease.
34
ARTICLE II
LEASE OF PROPERTY; TERM OF LEASE
SECTION 2.1 DEMISE OF PROPERTY; TERM.
(a) DEMISE AND LEASE. (i) During the term described in SECTION
2.1(b) hereof, Landlord hereby demises and leases to Tenant, and Tenant hereby
hires and takes from Landlord, pursuant to the provisions of this Lease, the
Property subject only to Permitted Encumbrances; PROVIDED, HOWEVER, that the
demise hereunder does not include, and shall not effectuate or constitute any
transfer or assignment to Tenant of, Landlord's privity of estate with, or
Landlord's obligations with respect to the removal of, Persons occupying the
Property on the Vesting Date.
(ii) During the term of this Lease, Landlord shall not create
or consent to any encumbrance or the putting of any lien on the Property (other
than an encumbrance or lien resulting from the prosecution by Landlord of any
remedy for the enforcement of any provision of this Lease) without Tenant's
prior written consent.
(b) TERM. (i) The leasehold estate granted in SECTION 2.1(a) hereof
is for a term of ninety-nine (99) years, commencing on the Commencement Date,
and ending upon the earlier of the date immediately preceding the ninety-ninth
(99th) anniversary of the Commencement Date or the date on which this Lease
shall sooner terminate as hereunder provided (the "EXPIRATION DATE"), upon and
subject to the covenants, agreements, terms, provisions and limitations herein
set forth, all of which covenants, agreements, terms, provisions and limitations
Landlord and Tenant covenant and agree to perform and observe.
(ii) Notwithstanding SECTION 2.1(b)(i) hereof, if the Fourth
Non-Delivery Event shall have occurred, then Tenant may cancel and terminate
this Lease by giving written notice thereof to Landlord on or prior to the
ninetieth (9Oth) day subsequent to the date of the occurrence of the Fourth
Non-Delivery Event and within the thirty (30) day period following each
subsequent anniversary of the Fourth Non-Delivery Date (but, in no event, after
the occurrence of the Delivery Date), in which event this Lease shall terminate
on such date and the estate demised under this Lease shall be extinguished and
neither Landlord nor Tenant shall have any obligations or liabilities to each
other whatsoever under this Lease (it being acknowledged and agreed that such
termination shall not limit, qualify, or otherwise affect any of the obligations
of the parties to the Site 8 South LADA thereunder).
(iii) Notwithstanding SECTION 2.1(b)(i) hereof, if the Vesting
Date has not occurred on or before the date (the "NON-VESTING DEADLINE") which
is the earlier to occur of (A) the eighth (8th) anniversary of the date hereof
and (B) the first date upon which NYTC fails to achieve a positive long term
return on its investment in the Project, then Tenant shall have the right, in
Tenant's sole discretion, within thirty (30) days after the Non-Vesting Deadline
(and, thereafter, so long as the Vesting Date has not then occurred and NYTC
continues to fail to achieve such positive return, within thirty (30) days after
each anniversary of the Non-Vesting Deadline), to send a notice (the
"NON-VESTING TERMINATION NOTICE") to Landlord electing to terminate this Lease
effective as of a date designated in such Non-Vesting Termination Notice, being
not less than five (5) nor more than thirty (30) Business Days after the date of
Landlord's receipt of such Non-Vesting Termination Notice; PROVIDED, HOWEVER,
that Tenant's exercise of the right to terminate set forth in this sentence
shall be void and of no effect if: [a] after the submission by ESDC of all
appropriate documentation with the Court for the dismissal of the Petition (as
defined in the LADA) (which ESDC covenants to
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submit and thereafter diligently prosecute) and notwithstanding such diligent
prosecution by ESDC of such dismissal, the Court has failed to expressly grant a
final, non-appealable dismissal of the Petition; [b] on or prior to the date of
such termination, Tenant has not paid all Public Condemnation Costs then
expended by the State Parties (unless Tenant has caused a Control Affiliate
acceptable to Landlord in its reasonable discretion to fully indemnify, pursuant
to an indemnification agreement acceptable to Landlord in its reasonable
discretion, Landlord for (or has provided to Landlord a Letter of Credit (a
"SECTION 2.1 LETTER OF CREDIT") sufficient in form and substance, in Landlord's
reasonable discretion, to secure the payment of) all such Public Condemnation
Costs); [c] Tenant is in Default under any Project Document and such Default
will not, by its nature, be cured or otherwise rendered inconsequential by
reason of the termination of this Lease by Tenant (unless Tenant has caused a
Control Affiliate acceptable to Landlord in its reasonable discretion to fully
indemnify, pursuant to an indemnification agreement acceptable to Landlord in
its reasonable discretion, Landlord for (or has provided to Landlord a SECTION
2.1 Letter of Credit sufficient in form and substance, in Landlord's reasonable
discretion, to secure the payment of) any claims, costs and expenses imposed
upon or incurred by or arising against Landlord with respect to such Default);
or [d] the Vesting Date has not occurred as a result, directly or indirectly, of
any action or inaction on the part of Tenant or any affiliate of Tenant. Upon
the later of the date designated in the Non-Vesting Termination Notice and the
formal dismissal or the Proceeding by the Court, this Lease shall terminate and
Tenant, NYTC, FCE and their Related Entities shall have no further obligations
hereunder or under the other Project Documents (except for (1) the obligations
set forth in SECTIONS 6.4, 6.5(c), 17.5, 19.3, and 33.2(e) hereof that survive
termination, and (2) the obligation to reimburse the Public Parties for (A)
costs theretofore and thereafter expended, and liabilities theretofore incurred
or thereafter imposed upon the Public Parties in respect of this Lease and the
other Project Documents pursuant to agreements entered into prior to the date of
termination of this Lease (it being agreed that Landlord shall take all efforts
(other than incurring any costs or liabilities in respect thereof) to minimize
Tenant's liability due to this clause (2)(A) and (B) all costs and liabilities
incurred by the Public Parties in connection with, and as a consequence of, such
termination including, without limitation, any costs which arise, directly or
indirectly, pursuant to Section 702 of the EDPL (including, without limitation,
attorney and appraisal fees) (the costs and liabilities described in clauses
(2)(A) and (2)(B) of this SECTION 2.1(b)(iii), "PUBLIC CONDEMNATION COSTS")).
Promptly after (x) the full and complete reimbursement of all Public
Condemnation Costs by Tenant to the Public Parties, as applicable and (y) all
remaining obligations of Tenant under this Lease being fully discharged,
Landlord shall, return any and all Letters of Credit delivered to Landlord by
Tenant, NYTC, FCE or their Related Entities in connection with the Project and
acknowledge in writing to Tenant that all guaranties delivered to Landlord in
connection with the Project Documents are of no further force or effect;
PROVIDED, HOWEVER, that if Tenant shall provide to Landlord a SECTION 2.1 Letter
of Credit which, in Landlord's reasonable discretion, is sufficient in amount to
secure the Public Parties against any claims, costs and expenses that may be
imposed upon or incurred by or asserted against the Public Parties in connection
with, and as a consequence of, the termination set forth in this SECTION
2.1(b)(iii), including, without limitation, all Public Condemnation Costs, then
Landlord shall accept such SECTION 2.1 Letter of Credit and promptly after the
receipt of the aforesaid SECTION 2.1 Letter of Credit shall return to Tenant all
other Letters of Credit then held by Landlord in connection with this Lease.
Tenant hereby agrees to indemnify Landlord and the other Public Parties for, and
to hold Landlord and the other Public Parties harmless from and against, any and
all claims, costs and expenses that may be imposed upon or incurred by or
asserted against Landlord or any of the other Public Parties in connection with,
and as a consequence of such termination, including, without limitation, all
Public Condemnation Costs.
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(c) POSSESSION OF PREMISES. Landlord and Tenant acknowledge that, as
of the Vesting Date, all of the parcels comprising the Land within the Property
will be demised to Tenant under this Lease but that, in obtaining Possession of
any parcel or in managing the Existing Improvements as to which Possession has
not been obtained, Landlord will be acting solely in its capacity as fee owner
of such parcels comprising the Land (and not as an agent for Tenant). No
landlord/tenant relationship or privity of estate or, by virtue of this Lease,
any contractual relationship shall exist between Tenant and any occupants of any
such parcels.
SECTION 2.2 CONDITION OF PROPERTY. Tenant is fully familiar with the
Property, the condition thereof and the Permitted Encumbrances, and Tenant
accepts and agrees to lease the same in their "AS IS" condition on the date
hereof and without any representation or warranty, express or implied, in fact
or by law, by Landlord, NYCEDC, ESDC or the City, except as expressly provided
in this Lease, and without recourse to Landlord, NYCEDC, ESDC or the City as to
the title thereto, the nature, condition or usability thereof or the use or uses
to which the Property or any part thereof may be put, except as expressly
provided in this Lease.
SECTION 2.3 WAIVER OF RIGHT TO RESCIND. Tenant waives any right to
rescind this Lease under Section 223-a of the New York State Real Property Law
or under any present or future statute of similar import then in force and
further expressly waives the right to recover any damages which may result from
Landlord's failure to deliver possession of the Property. Tenant agrees that
this SECTION 2.3 is intended to constitute "an express provision to the
contrary" within the meaning of said Section 223-a.
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ARTICLE III
CHARGES AND FEES
SECTION 3.1 PILOT.
(a) DETERMINATION OF PILOT. Tenant covenants and agrees to pay to
Landlord, commencing as of the Delivery Date and continuing during the term of
this Lease, payments in lieu of real estate taxes ("PILOT") determined as
follows:
(i) PRIOR TO SCHEDULED PILOT CONVERSION DATE.
(A) From the Delivery Date through the day before the
Scheduled PILOT Conversion Date, Tenant shall pay to Landlord an amount, per
annum, equal to the lesser of (1) subject to SECTION 3.1(a)(i)(C) hereof, Full
Taxes and (2) [a] the sum of Office PILOT and Retail PILOT for the applicable
PILOT Year minus [b] (i) any Theater Surcharge payable in respect of such
applicable PILOT Year, and (ii) any applicable PA PILOT Reduction. Landlord's
calculation of PILOT shall be binding, absent computational error.
(B) The number of Taxable Square Feet shall be
determined as follows:
(1) Within ten (10) Business Days after Landlord's
approval of the Final Plans and Specifications, Tenant shall cause an Architect
to submit to Landlord and Tenant an Architect's Certification, prepared by an
Architect approved by Landlord, which sets forth the number of Square Feet of
Discretionary Inside Mechanical Space represented by the Final Plans and
Specifications (it being agreed that such Architect's Certification shall be
deemed approved by Landlord unless disputed within ten (10) Business Days of
receipt thereof by Landlord). The form of the Architect's Certificate described
in this SECTION 3.1(a)(i)(B)(1) is set forth on EXHIBIT J attached hereto. The
Architect's Certification described in this SECTION 3.1(a)(i)(B)(1) shall assume
all space set forth on the Final Plans and Specifications is actually built. The
parties hereto agree that the initial number of Taxable Square Feet shall be
equal to the sum of: [a] the Discretionary Inside Mechanical Space (as
determined pursuant to this SECTION 3.1(a)(i)(B)(1)); and [b] 1,380,000.
(2) Upon the occurrence of each of the following
events [a] the Substantial Completion Date, and [b] the completion of any
Construction Work which would potentially cause a change in the number of
Taxable Square Feet, Tenant shall: [I] cause an Architect, approved (or deemed
approved) by Landlord pursuant to SECTION 6.1(d)(ii) hereof to submit an
Architect's Certification to Landlord and Tenant (it being agreed that such
Architect's Certification shall be deemed approved by Landlord unless disputed
within ten (10) Business Days of receipt thereof by Landlord) confirming that
the number of Square Feet earlier certified to pursuant to the Architect's
Certification described in SECTION 3.1(a)(i)(B)(1) hereof is still correct (or,
if the number of Square Feet has changed, setting forth the correct number and
the reasons that such number has changed); and [II] provide to Landlord a
certification of Tenant (the "TENANT'S TSF CERTIFICATION") setting forth, as of
such date (X) the aggregate number of Square Feet in each block of below-grade
space that is Revenue-Producing Retail Space and (Y) the total number of Taxable
Square Feet. In any event and in addition to the circumstances described above,
on each January 1 and July 1 following the Substantial Completion Date, Tenant
shall provide to Landlord a Tenant's TSF Certification.
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(3) Subject to Landlord's right to dispute a
Tenant's TSF Certification pursuant to this SECTION 3.1(a)(i)(B)(3), each
Tenant's TSF Certification shall be considered a final and binding determination
of the number of Taxable Square Feet certified therein. Within twenty (20)
Business Days after the delivery of a Tenant's TSF Certification, Landlord may
deliver to Tenant a statement ("LANDLORD'S TSF STATEMENT") disapproving such
Tenant's TSF Certification and indicating in reasonable detail (to the extent
then ascertainable by Landlord) the reasons for the disapproval. In the event
that Landlord provides a Landlord's TSF Statement, Tenant and Landlord shall
attempt to agree upon the then actual number of Taxable Square Feet based on the
actual use of the Retail Space. In the event that Landlord and Tenant are unable
to agree upon the then actual number of Taxable Square Feet within fifteen (15)
Business Days of Tenant's receipt of Landlord's TSF Statement, the disagreement
shall be referred to arbitration in accordance with SECTION 16.2 hereof. Failure
of Landlord to provide a Landlord's TSF Statement within the indicated period
shall be deemed approval of the number of Taxable Square Feet set forth in the
applicable Tenant's TSF Certification. Notwithstanding any other term in this
SECTION 3.1(a)(i)(B) to the contrary, it is acknowledged and agreed that, except
as permitted pursuant to SECTION 1.1(a)(ccxl) hereof (the definition of
Project), for the purpose of calculating PILOT, no Architect's Certification
submitted under this SECTION 3.1(a)(i)(B) shall reduce the number of Taxable
Square Feet to fewer than 1,380,000.
(C) EXHIBIT K attached hereto outlines the methodology
utilized to determine the amounts set forth on SCHEDULE 1 attached hereto. If,
prior to the Delivery Date, there are changes to the methodology to determine
taxes for commercial buildings in New York City which by their terms would be
applicable to the Property on the anticipated Delivery Date (but for public
ownership of the Property) and such changes would alter the manner in which the
variables set forth on EXHIBIT K are treated (such changes, the "REAL ESTATE TAX
METHODOLOGY CHANGES"), then Tenant may send a notice (the "ALTERNATIVE PILOT
NOTICE") to the Public Parties not more than twenty-five (25) Business Days
after the Delivery Date requesting an alternative PILOT schedule (the
"ALTERNATIVE PILOT SCHEDULE") reflecting all Real Estate Tax Methodology
Changes. Within ninety (90) days after receipt of the Alternative PILOT Notice,
Landlord shall send Tenant an Alternative PILOT Schedule to be prepared by
applying such Real Estate Tax Methodology Changes to the methodology used to
determine the PILOT Schedule initially set forth in SCHEDULE 1 attached hereto,
and which Alternative PILOT Schedule shall be in the same format as the PILOT
Schedule initially set forth in SCHEDULe 1 attached hereto. Upon notice to
Landlord, if the net present value of the entire Alternative PILOT Schedule is
less than the net present value of the schedule set forth as SCHEDULE 1 attached
hereto, Tenant may choose to irrevocably substitute the Alternative PILOT
Schedule for the PILOT Schedule currently set forth in SCHEDULE 1 attached
hereto, and Landlord and Tenant shall enter into an amendment of this Lease in
recordable form setting forth such modification. If any new program enacted by
the City and/or the State of New York provides for a reduction in real estate
taxes or a credit against real estate taxes on account of capital investments
made for certain categories of improvements (e.g., energy efficient systems),
the PILOT rates set forth on SCHEDULE 1 attached hereto shall be reduced by the
amount of such credit to the extent such program or credit would have otherwise
applied to the Property. In no event, by virtue of foregoing, shall the PILOT to
be paid hereunder ever be less than $0. In the event that an Alternative PILOT
Schedule is approved in accordance with this SECTION 3.1(a)(i)(C), Schedule I
attached to each Severance Sublease will also be modified accordingly.
(ii) ON AND AFTER SCHEDULED PILOT CONVERSION DATE. On and
after the Scheduled PILOT Conversion Date through the expiration of the term of
this Lease, Tenant shall pay to Landlord an amount, per annum, equal to Full
Taxes.
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(b) PILOT PAYMENT.
(i) From and after the Delivery Date, PILOT shall be payable
in advance, in equal semi-annual installments, on or prior to January 1 and July
1 of each and every Lease Year (except that in respect of the Lease Year in
which the Delivery Date occurs, in the event that the Delivery Date does not
occur on January 1 or July 1, Tenant shall pay to Landlord PILOT in an amount
equal to the product of (A) the applicable annual PILOT and (B) a ratio, the
numerator of which is the number of days in the period from the Delivery Date
through the first to occur of December 31 or June 30 and the denominator of
which is 365, such payment to be payable to Landlord within ten (10) Business
Days after the Delivery Date). Upon the Expiration Date or earlier termination
of this Lease, Landlord shall repay or provide an appropriate credit for any
prepaid PILOT in respect of the period after such Expiration Date or earlier
termination of this Lease.
(ii) Except as qualified by the immediately following
sentence, for so long as any portion of Landlord's obligation to reimburse
Excess Site Acquisition Costs shall remain owing and unpaid, Tenant's payment of
PILOT shall be in the form of (x) a credit against eighty-five percent (85%) of
the PILOT then due and payable pursuant to SECTION 3.1 hereof, in reimbursement
of Excess Site Acquisition Costs and (y) a payment of the remaining fifteen
percent (15%) as otherwise required in accordance with the provisions of this
Lease. The offset described in the immediately preceding sentence is available
to Tenant if, and only if: (A) no Event of Default has occurred and is
continuing hereunder (but such right shall be immediately reinstated, on a
prospective basis only, upon Tenant's curing of such Event of Default); (B) the
PILOT payment required by this SECTION 3.1 is made in a timely manner; and (C)
notice is provided to Landlord with each payment of PILOT setting forth the
outstanding balance of unreimbursed Excess Site Acquisition Costs, such notice
to be substantially in the form set forth in EXHIBIT L attached hereto. If such
conditions are not fulfilled, then Tenant shall pay 100% of the PILOT then due
and payable and the provisions of Section 3.04 of the Site 8 South LADA shall
apply to Landlord's obligation to reimburse Excess Site Acquisition Costs.
(c) TAX CONTEST PROCEEDING.
(i) Tenant shall have the exclusive right (but shall be under
no obligation) to seek and agree upon reductions in the valuation of the
Property assessed for real property tax purposes and to prosecute any action or
proceeding in connection therewith by appropriate proceedings, in accordance
with the Charter and Administrative Code of the City of New York, as it may be
amended, including, without limitation, the right to prosecute administrative
and/or judicial proceedings and judicial review and appeal of any decision which
Tenant, in its sole discretion, considers adverse, and the right to settle or
compromise any such proceeding.
(ii) If Tenant institutes a tax assessment reduction or other
action or proceeding pursuant to SECTION 3.1(c)(i) hereof to reduce Full Taxes,
Tenant shall nevertheless continue to pay, during the pendency of such action or
proceeding, the full amount of PILOT required under SECTION 3.1(a) hereof for
the applicable period. If there is a final determination of any such tax
reduction or other action or proceeding in Tenant's favor, Tenant shall offset
the amount of any PILOT paid to Landlord under SECTION 3.1(a) hereof by (A) the
amount by which PILOT paid by Tenant for any applicable period exceeds the
amount of Full Taxes for such period, as so reduced, and (B) interest for the
applicable period to the extent (if any) that such interest would be payable in
comparable circumstances by the applicable taxing authority if the Property were
not tax exempt, provided that any such amount (together with such interest, if
any) unrecovered at the expiration of
40
the term of this Lease shall be paid by Landlord to Tenant. In the event that
there is a tax protest filed by Tenant or a tax certiorari proceeding filed by
Tenant in respect of the Property which is unresolved on the Purchase Option
Closing Date, such circumstances shall be governed by SECTION 5.1(c)(iv) hereof.
(iii) Landlord shall not be required to join in any action or
proceeding referred to in this SECTION 3.1(c) unless the provisions of any law,
rule or regulation at the time in effect require that such action or proceeding
be joined in by or brought by and/or in the name of Landlord. If so required,
Landlord shall join and cooperate in such actions and proceedings or permit them
to be brought by Tenant in Landlord's name to the extent necessary to permit
Tenant to effect such proceeding, in which case Tenant shall pay all reasonable
costs and expenses incurred by Landlord in connection therewith. Such
cooperation shall include, without limitation, the execution, acknowledgment and
delivery of any documents or instruments reasonably required to prosecute,
settle or compromise the action or proceeding in question, provided that
Landlord shall not be obligated to incur any liability, cost or expense in
connection therewith unless indemnified by Tenant therefor.
SECTION 3.2 RETAIL SPACE PERCENTAGE RENT.
(a) CALCULATION OF PERCENTAGE RENT. Tenant covenants and agrees to
pay to Landlord, from and after the Delivery Date and through the date that is
one (1) day before the Scheduled PILOT Conversion Date, Percentage Rent,
determined in accordance with this SECTION 3.2(a). Percentage Rent for any Lease
Year shall be the sum of the following amounts:
(i) the sum of: (A) Twenty percent (20%) of the amount, if
any, by which the lesser of (1) Adjusted Gross Revenues for such Lease Year and
(2) the product of (x) 0.15 and (y) the Budgeted Retail Construction Costs
exceeds (3) the product of (x) 0.13 and (y) the Budgeted Retail Construction
Costs; and
(B) Thirty percent (30%) of the amount, if any, by which
(1) Adjusted Gross Revenues for such Lease Year exceeds (2) the product of (x)
0.15 and (y) the Budgeted Retail Construction Costs; and
(ii) the sum of: (A) Twenty percent (20%) of the amount, if
any, by which the lesser of (1) PA Retail Adjusted Gross Revenues for such Lease
Year and (2) the product of (x) 0.15 and (y) the Budgeted PA Retail Construction
Costs exceeds (3) the product of (x) 0.13 and (y) the Budgeted PA Retail
Construction Costs; and
(B) Thirty percent (30%) of the amount, if any, by which
(1) PA Retail Adjusted Gross Revenues for such Lease Year exceeds (2) the
product of (x) 0.15 and (y) the Budgeted PA Retail Construction Costs; and
(iii) the sum of: (A) Twenty percent (20%) of the amount, if
any, by which the lesser of (1) Roof Top Garden Adjusted Gross Revenues for such
Lease Year and (2) the product of (x) 0.15 and (y) the Budgeted Roof Top Garden
Construction Costs exceeds (3) the product of (x) 0.13 and (y) the Budgeted Roof
Top Garden Construction Costs; and
41
(B) Thirty percent (30%) of the amount, if any, by which
(A) Roof Top Garden Adjusted Gross Revenues for such Lease Year exceeds (B) the
product of (1) 0.15 and (2) the Budgeted Roof Top Garden Construction Costs.
(iv) the sum of: (A) Twenty percent (20%) of the amount, if
any, by which the lesser of (1) Lobby Sublease Space Adjusted Gross Revenues for
such Lease Year and (2) the product of (x) 0.15 and (y) the Budgeted Lobby
Sublease Space Construction Costs exceeds (3) the product of (x) 0.13 and (y)
the Budgeted Lobby Sublease Space Construction Costs; and
(B) Thirty percent (30%) of the amount, if any, by which
(A) Lobby Sublease Space Adjusted Gross Revenues for such Lease Year exceeds (B)
the product of (1) 0.15 and (2) the Budgeted Lobby Sublease Space Construction
Costs.
(b) PERCENTAGE RENT DUE DATES. Percentage Rent for each Lease Year,
if any, shall be paid, in arrears, annually to Landlord no later than February
15 of each Lease Year after the Delivery Date and shall be accompanied by a
Percentage Rent Report.
(c) PERCENTAGE RENT REPORT. Tenant shall deliver annually to
Landlord, prior to February 15 of each subsequent Lease Year after the Delivery
Date, a report (the "PERCENTAGE RENT REPORT") which shall be a Verified
Statement and which shall set forth (i) in detail the amount of the Adjusted
Gross Revenues, PA Retail Adjusted Gross Revenues, Roof Top Garden Adjusted
Gross Revenues and Lobby Sublease Space Adjusted Gross Revenues for the
applicable Lease Year on a monthly, quarterly and annual basis, (ii) in detail
the sources from which the same were derived and the deductions thereto and
(iii) the calculation of Percentage Rent, if any, for the applicable Lease Year.
(d) INDEPENDENT CALCULATION. The calculation of the amount of
Percentage Rent for any Lease Year shall be independent of the calculation for
any other Lease Year. The acceptance of any Percentage Rent tendered by Tenant
shall be without prejudice to Landlord's right to any further sums subsequently
shown to be due for the same period.
(e) ACCOUNTING PRINCIPLES. All rentals, sums or other consideration
which are to be included in Adjusted Gross Revenues, PA Retail Adjusted Gross
Revenues, Roof Top Garden Adjusted Gross Revenues and Lobby Sublease Space
Adjusted Gross Revenues shall be included based upon Accounting Principles.
(f) SUBLEASING TO RELATED ENTITY. No subleasing by Tenant to a
Related Entity shall affect, reduce or impair Tenant's Obligations hereunder to
pay Percentage Rent and to deliver any Percentage Rent Report as required
hereunder and to make available books and records pursuant to SECTION 3.13
hereof. Tenant shall deliver to Landlord promptly upon the receipt or sending
thereof copies of all notices, reports and communications between Tenant and any
such Subtenant which relate to any financial or sales reports of such Subtenant
with respect to the Property, any default by Tenant or such Subtenant under the
applicable Sublease, or any other matter material to the financial or sales
performance of either Tenant or such Subtenant under the applicable Sublease.
Any failure by a Subtenant which is a Tenant Related Entity to provide to Tenant
the information necessary for Tenant to prepare a Percentage Rent Report or to
make available books and records for review pursuant to SECTION 3.13 hereof
shall be deemed to be a Default hereunder. Tenant shall provide in each Sublease
with a Tenant Related Entity that each such Subtenant shall be subject to
42
the provisions of this SECTION 3.2 with respect to the preparation and delivery
of Percentage Rent Reports and the provisions of SECTION 3.13 hereof with
respect to making available books and records. With respect to a Related Entity
that is a Subtenant in possession and actual use of its Demised Space, nothing
in the foregoing portions of this SECTION 3.2(f) shall affect the determination
of the Adjusted Gross Revenues, PA Retail Adjusted Gross Revenues, Roof Top
Garden Adjusted Gross Revenues or Lobby Sublease Space Adjusted Gross Revenues
derived therefrom as provided in clause (A)(9) of the applicable definition
therefor.
SECTION 3.3 SALES TAX SAVINGS; PILOST.
(a) SCOPE OF EXEMPTION. Landlord shall cooperate with, and make
available to, Tenant in connection with the Tenant's Construction Work to be
performed by Tenant or its contractors and their subcontractors, the exemption
from Sales Taxes available to Landlord as a result of Landlord's ownership of
the Property. In connection therewith, Landlord shall provide to Tenant,
contemporaneously with the execution of this Lease, an appropriate letter
setting forth the exemptions contained in this SECTION 3.3(a). The exemption
from Sales Taxes described in this SECTION 3.3(a) shall not be made available to
any Subtenant or with respect to any other work (other than to NYTC or its
Related Entities as may be provided in a XXX Project Agreement). Tenant
acknowledges and agrees that: (i) there shall be no exemption pursuant to this
Lease from Sales Taxes or other similar taxes, other than the exemption relating
to the Sales Tax Savings; (ii) except as may otherwise be available hereunder,
no claim shall be made by Tenant or its contractors or their subcontractors for
any such additional or other exemption relating to Sales Taxes; and (iii) if
this Lease is terminated prior to the Commencement of Tenant's Construction
Work, then upon such termination, Tenant shall pay to Landlord an amount equal
to the total Sales Tax Savings realized by Tenant; PROVIDED, HOWEVER, that
nothing in this sentence shall preclude any occupant of the Property from
seeking sales tax or other benefits or shall obligate the Public Parties to make
such benefits available.
(b) PAYMENT OF ESTIMATED SALES TAX SAVINGS. Tenant shall make
payments in respect of Sales Tax Savings in an amount (the "PILOST AMOUNT")
equal to (A) the product of (1) 0.4848 and (2) the annual Sales Tax Savings,
multiplied by (B) the FC Facility Percentage. Such payments shall be made as
follows: (i) the PILOST Amount for the Lease Year during which Tenant Commences
Construction of Tenant's Construction Work shall be paid by Tenant to Landlord
within twenty-five (25) Business Days after the last day of such Lease Year; and
(ii) in each subsequent Lease Year, Tenant shall pay the PILOST Amount in
quarterly installments on January 15, April 15, July 15 and October 15 of each
Lease Year (except January 15 of the Lease Year after the Lease Year during
which Tenant Commences Construction of Tenant's Construction Work) during which
Tenant's Construction Work is performed, based on the projected amounts of
PILOST Amount due for the three-month periods ending March 31, June 30,
September 30 and December 31, respectively, of such Lease Year, as set forth in
the Estimated Tenant Sales Tax Statements prepared pursuant to Section 3.3(c)
hereof.
(c) ANNUAL SALES TAX SAVINGS ESTIMATE. Beginning January 1 of the
first Lease Year after Tenant Commences Construction of Tenant's Construction
Work and on January 1 of each subsequent Lease Year during which Tenant's
Construction Work will continue, Tenant shall deliver to Landlord a Verified
Statement (the "ESTIMATED TENANT SALES TAX STATEMENT"), showing the amount of
Tenant's Construction Work subject to Sales Tax Savings pursuant to this SECTION
3.3 projected to be performed during each calendar quarter of such Lease Year,
and the PILOST Amount projected to be paid by Tenant in respect thereof.
43
(d) SALES TAX SAVINGS REPORT. Tenant shall deliver to Landlord a
Verified Statement in respect of Tenant's Construction Work (the "SALES TAX
SAVINGS REPORT"), no later than one hundred twenty (120) days after the
expiration of each Lease Year, or portion thereof falling within the term of
this Lease, during which Tenant's Construction Work was performed, unless any
such work is completed within such Lease Year, in which case the Sales Tax
Savings Report in respect thereof shall be delivered to Landlord within one
hundred twenty (120) days after such completion thereof. Each such Sales Tax
Savings Report shall show in detail the amount of the applicable work subject to
Sales Tax Savings pursuant to this SECTION 3.3 completed by or on behalf of
Tenant during the previous Lease Year (or the same Lease Year, if applicable),
the amount of any Sales Tax Savings realized therefrom, and the PILOST Amount
resultant therefrom. Each Sales Tax Savings Report shall be prepared by Tenant.
Concurrently with the delivery of the Sales Tax Savings Report, Tenant shall
make a reconciliation payment to Landlord in an amount equal to the positive
difference (if any) between (i) the Sales Tax Payment Amount, as computed from
such Sales Tax Savings Report, payable for said Lease Year, and (ii) any
payments of PILOST as shall have previously been made for said Lease Year
pursuant to SECTION 3.3(b) hereof. In the event such reconciliation payment
exceeds ten percent (10%) of the total PILOST payable in respect of such Lease
Year, the amount thereof in excess of ten percent (10%) of total PILOST shall
include interest at the Interest Rate, calculated from the date that such
amounts should have been paid to Landlord under SECTION 3.3(b) hereof based on
such actual expenditures through the date payment thereof has been received by
Landlord. If the total of the payments of PILOST previously made pursuant to
SECTION 3.3(b) hereof shall exceed the amount of PILOST which is payable for the
entire Lease Year, based upon the Sales Tax Savings Report delivered pursuant to
this SECTION 3.3(d), the amount of such excess shall be applied in reduction of
the next ensuing installment or installments of PILOST (or if no PILOST are
being then paid, then such other Charges as are being paid during the term of
this Lease).
(e) NOTIFICATION OF TAX DUE. Tenant shall immediately notify
Landlord of (i) any proceeding or other investigation to challenge any Sales Tax
Savings or (ii) a determination by the appropriate taxing authority that any
sales or compensating use taxes with respect to a transaction as to which
amounts have been paid as PILOST are payable by Tenant (the amount determined by
such taxing authority with respect to such transaction to be payable by Tenant,
but not greater than the amount of the PILOST for such transaction, is herein
referred to as the "DUPLICATE TS PAYMENT"). Within twenty-three (23) Business
Days after Tenant sends to Landlord a written notification that any
determination by the appropriate taxing authority is final (a "FINAL TAX
NOTIFICATION") and Tenant, in accordance therewith, has paid to such taxing
authority an amount equal to the Duplicate TS Payment (together with evidence
thereof), Landlord shall repay to Tenant the amount, if any, of the Duplicate TS
Payment previously paid to Landlord by Tenant, together with an amount equal to
any interest or penalties imposed on Tenant by the applicable taxing authority
for Tenant's non-payment, which payment shall be made by Landlord prior to the
date which is twenty-three (23) Business Days after the Final Tax Notification.
If Landlord fails to reimburse Tenant for the Duplicate TS Payment within the
foregoing period, Tenant shall have the right to offset the amount of such
Duplicate TS Payment together with interest at the Interest Rate from the date
Tenant made such Duplicate TS Payment until so offset against the next
installments of Charges coming due pursuant to this Lease. If as a result of the
expiration or termination of this Lease other than by reason of Tenant's default
Tenant is unable to recoup the entire Duplicate TS Payment with interest as
aforesaid by offsetting the same against Charges, Landlord shall reimburse
Tenant for any such amount not so recouped less any amounts due and owing from
Tenant to Landlord hereunder within twenty-three (23) Business Days of the
expiration or termination of this Lease. Neither Landlord nor Tenant shall be
obligated to contest the decision of any such authority to deny, revoke or
terminate
44
any exemptions or other relief from the payment of such taxes. However, should
either party desire to contest any such decision by bringing a lawsuit or
otherwise, it may do so at its own risk and expense, and Landlord shall have the
right to bring such lawsuit in the name of Tenant if Tenant fails to do so
within twenty-three (23) Business Days following written request by Landlord. In
the event that the contest of such decision is successful and Landlord has paid
the amount of the Duplicate TS Payment to Tenant, then Tenant shall, within
twenty-three (23) Business Days after written demand by Landlord, reimburse
Landlord in an amount equal to the applicable Duplicate TS Payment.
Section 3.4 EXEMPTION FROM MORTGAGE RECORDING TAX; PILOMRT.
(a) EXEMPTION FROM MORTGAGE RECORDING TAX. Landlord shall cooperate
with, and cause ESDC to make available to, Tenant an exemption in respect of
Mortgage Recording Tax permitted by reason of the public ownership of the
Property and ESDC's participation in the Project. Landlord shall cooperate with
Tenant in structuring Mortgages so as to take advantage of the exemption
described in this SECTION 3.4(a), which cooperation shall include arranging for
ESDC or an affiliate thereof to act as the original mortgagee and/or holder
thereof if required to enable Tenant to avail itself of the exemption from
Mortgage Recording Tax provided for in this Lease.
(b) PAYMENT IN LIEU OF MORTGAGE RECORDING TAX. Prior to the
recording of any Mortgage with the Office of the Register of the City, New York
County, Tenant shall make a payment of PILOMRT to Landlord in an amount equal to
(i) the extent a Mortgage is not an Exempted Mortgage, an amount equal to the
Mortgage Recording Tax that would have been payable upon the recording of such
Mortgage if not for the exemption provided under SECTION 3.4(a) hereof and (ii)
the extent the Mortgage is an Exempted Mortgage, the positive difference, if
any, between (A) the product of (1) the NYTC Facility Percentage and (2) the
Mortgage Recording Tax Savings realized to date and (B) an amount equal to the
Maximum MRT Savings Amount (as defined in the XXX Project Agreement).
Simultaneously with such payment, Tenant shall deliver to Landlord a certificate
from a Qualified Certifying Officer of Tenant setting forth the maximum
principal amount that may be advanced under such Mortgage to be recorded and
Tenant's calculation of the amount of the PILOMRT due in respect thereof. The
amount of the PILOMRT shall be determined by using the Mortgage Recording Tax
rates in effect at the time such Mortgage is recorded.
(c) NOTIFICATION OF TAX DUE. Tenant shall notify Landlord within
seven (7) Business Days after receipt of notice by Tenant of a written
determination by the appropriate taxing authority that any Mortgage Recording
Tax is payable by Tenant with respect to any Mortgage that benefited from the
exemption set forth in SECTION 3.4(a) hereof. Within twenty-three (23) Business
Days after Tenant sends to Landlord a written notification that any
determination by the appropriate taxing authority is final (a "FINAL MRT
NOTIFICATION") and Tenant, in accordance therewith, has paid to such taxing
authority an amount equal to the Mortgage Recording Tax demanded (together with
evidence thereof), Landlord shall repay to Tenant the amount, if any, of such
Mortgage Recording Tax (but no more than the amount, if any, of any PILOMRT that
Tenant made to Landlord in respect of the recording of the applicable Mortgage),
together with an amount equal to any interest or penalties imposed on Tenant by
the applicable taxing authority for Tenant's non-payment, which payment shall be
made by Landlord prior to the date which is twenty-three (23) Business Days
after the Final MRT Notification. If Landlord fails to so reimburse Tenant for
the Mortgage Recording Tax within the foregoing period, Tenant shall have the
right to offset the amount of such Mortgage Recording Tax together with interest
at the Interest Rate from the date Tenant made such Mortgage Recording Tax
against the next installments of Charges coming due pursuant to this Lease. If
as a result of the expiration or termination of this Lease other than by reason
of Tenant's default Tenant is
45
unable to recoup the entire Mortgage Recording Tax with interest as aforesaid by
offsetting the same against Charges, Landlord shall reimburse Tenant for any
such amount not so recouped less any amounts due and owing from Tenant to
Landlord hereunder within twenty-three (23) Business Days of the expiration or
termination of this Lease. Neither Landlord nor Tenant shall be obligated to
contest the decision of any such authority to deny, revoke or terminate any
exemptions or other relief from the payment of such taxes. However, should
either party desire to contest any such decision by bringing a lawsuit or
otherwise, it may do so at its own risk and expense, and Landlord shall have the
right to bring such lawsuit in the name of Tenant if Tenant fails to do so
within twenty-three (23) Business Days following written request by Landlord. In
the event that the contest of such decision is successful and Landlord has paid
the amount of the Mortgage Recording Tax to Tenant, then Tenant shall, within
twenty-three (23) Business Days after written demand by Landlord, reimburse
Landlord in an amount equal to the applicable Mortgage Recording Tax.
SECTION 3.5 THEATER SURCHARGE.
(a) CALCULATION OF THEATER SURCHARGE. Tenant covenants and agrees to
pay to Landlord, for the benefit of the rehabilitation, maintenance, management
and promotion of the historic theaters within the 00xx Xxxxxx Project Area
(which payment shall be forwarded by Landlord to a Theater Management Entity) an
amount equal to $0.15 per Occupied Square Foot per annum (the "THEATER
SURCHARGE"); PROVIDED, HOWEVER, that the Theater Surcharge shall be Adjusted for
Inflation from January 1, 2000.
(b) TRIGGERING OF THEATER SURCHARGE OBLIGATION. The Theater
Surcharge obligation in respect to any given Occupied Square Foot shall
commence, in respect of each such Occupied Square Foot, upon the earlier to
occur of (1) the commencement of the term of any Sublease demising such Occupied
Square Foot and (2) actual occupancy of such Occupied Square Foot for the
conduct of business (such earlier date, the "THEATER SURCHARGE COMMENCEMENT
DATE"). The obligation to pay the Theater Surcharge in respect of a given
Occupied Square Foot shall continue until the earliest of (i) the expiration of
the applicable Sublease, if any (it being understood that the obligations to
make payments on account of the Theater Surcharge shall recommence when the
requirements of clause (1) and (2) above are again satisfied), (ii) the first
date on which no entity exists to exercise the functions of a Theater Management
Entity and (iii) the ninety-ninth (99th) anniversary of the Delivery Date.
(c) THEATER SURCHARGE DUE DATES. The aggregate Theater Surcharge for
each Lease Year in respect to a given Occupied Square Foot shall be paid, in
advance, annually to Landlord (together with the PILOT payment due pursuant to
SECTION 3.1(b) hereof) on or prior to January 1 of such Lease Year and shall be
accompanied by a Theater Surcharge Report (it being agreed that the Theater
Surcharge in respect of any Occupied Square Foot for which Theater Surcharge
Commencement Date occurs after January 1 shall be paid, pro rata, on the basis
of the actual number of days in such Lease Year after such Theater Surcharge
Commencement Date, within twenty (20) Business Days after the applicable Theater
Surcharge Commencement Date). If a Sublease for any Occupied Square Feet shall
terminate on any date which is prior to December 31 of any Lease Year, the
Theater Surcharge for such period shall be prorated accordingly (and, in respect
of a Sublease that is terminated unexpectedly before December 31 of any
applicable Lease Year, any Theater Surcharge paid in respect of the period after
such unexpected termination will be deemed a credit against the payment of
Theater Surcharge next due).
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(d) THEATER SURCHARGE REPORT. Tenant shall deliver to Landlord,
along with the annual Theater Surcharge payment, a report (the "THEATER
SURCHARGE REPORT") which shall be a Verified Statement and which shall set
forth, together with support adequate to permit Landlord to undertake an
informed review in respect thereof, (i) in detail, the number of Occupied Square
Feet in the New Building that form the basis of the Theater Surcharge
calculation, (ii) the applicable Theater Surcharge Commencement Dates related to
each Occupied Square Foot listed in clause (i) above, (iii) the applicable
Theater Surcharge factor (i.e., $0.15 in the year 2000) as Adjusted for
Inflation, and (iv) the calculation of Theater Surcharge for the applicable
Lease Year.
(e) INDEPENDENT CALCULATION. The calculation of the amount of
Theater Surcharge for any Lease Year shall be independent of the calculation for
any other Lease Year. The acceptance of any Theater Surcharge payment tendered
by Tenant shall be without prejudice to Landlord's right to any further sums
subsequently shown to be due for the same period.
(f) SUBLEASING TO RELATED ENTITY. No subleasing by Tenant to a
Tenant Related Entity for the actual occupancy of the demised space shall
affect, reduce or impair Tenant's Obligations hereunder to pay Theater Surcharge
(or the amount thereof) and to deliver a Theater Surcharge Report as required
hereunder.
SECTION 3.6 ADMINISTRATIVE FEE. Tenant covenants and agrees to pay
Landlord, from and after the Commencement Date, in annual payments in advance on
January 10 of each year, FORTY THOUSAND DOLLARS ($40,000) per annum (the
"ADMINISTRATIVE FEE"). On every fifth (5th) anniversary of the Delivery Date,
the Administrative Fee shall be Adjusted for Inflation in respect of the next
succeeding five-year period.
SECTION 3.7 PRORATIONS; OVERDUE AMOUNTS.
(a) 365/366-DAY YEAR. All prorations under this ARTICLE III shall be
calculated on the basis of a the actual number of days elapsed in a 365-day year
(or 366-day year, if applicable).
(b) PRORATIONS. Except as otherwise provided in SECTION 3.7(c)
hereof, if the Expiration Date is other than the last day of a calendar month,
the installment of Charges for the period in which the Expiration Date occurs
shall be prorated on the basis of the number of days occurring within the period
commencing on the first day of the calendar month in which the Expiration Date
occurs and ending on the Expiration Date.
(c) OVERDUE AMOUNTS. Additional Charges shall be payable by Tenant
to Landlord in respect of any amounts payable hereunder to Landlord (including,
without limitation, sums advanced by Landlord hereunder to cure a default by
Tenant in the performance of Tenant's Obligations) which shall not have been
paid on the date the same shall be due and payable (an "OVERDUE PAYMENT")
together with interest as follows: (A) with respect to any overdue PILOT, the
overdue amount shall bear interest at the rate then generally charged by the
City with respect to overdue Full Taxes, and shall be subject to the same fines
and penalties as are assessed by the City with respect to overdue Full Taxes;
PROVIDED, HOWEVER, the imposition or assessment of interest, fines and penalties
for overdue PILOT shall be subject to the notice and grace periods identical to
the notice and grace periods, if any, from time to time granted by the City with
respect to the payment of Full Taxes in respect of comparable properties and
amounts; and (B) with respect to any other overdue Charges (other than Charges
incurred pursuant to SECTION 14.1(b) hereof), the overdue amount shall bear
interest calculated at the Interest Rate. Such aforesaid charges shall be due
and
47
payable within twenty (20) Business Days after demand for payment therefor by
Landlord. No failure by Landlord to insist upon the strict performance by Tenant
of Tenant's Obligations to pay such Overdue Payment or interest shall constitute
a waiver by Landlord of its right to enforce the provisions of this SECTION 3.7
in any instance thereafter occurring. The provisions of this SECTION 3.7 shall
not be construed in any way to extend the grace periods or notice periods with
respect to the payment of Charges as provided in SECTION 14.2(a) hereof.
SECTION 3.8 NO JOINT VENTURE. The fixing of a portion of the Charges
to be paid by Tenant with reference to a percentage of Adjusted Gross Revenues,
PA Retail Adjusted Gross Revenues, Roof Top Garden Adjusted Gross Revenues or
Lobby Sublease Space Adjusted Gross Revenues shall not cause either party hereto
to be deemed to be a partner or an associate in business with, or responsible in
any way for the business of, the other party hereto. Landlord, in its capacity
as landlord hereunder, and Tenant further agree that they are not partners or
joint venturers and that they do not stand in any fiduciary relationship one to
the other.
SECTION 3.9 ALL CHARGES TREATED AS RENT. All PILOT, PILOST, PILOMRT,
Percentage Rent, Theater Surcharge, Overdue Payments, and other charges, fees
and other amounts payable by Tenant under this Lease shall constitute Charges
and, in the event of the non-payment by Tenant of any of the same when due
according to the provisions of this Lease, Landlord shall have the same rights
and remedies in respect thereof as would be available to Landlord if Charges
were rent. It is expressly agreed by the parties hereto that no fixed rent is
payable under this Lease. Moreover, no charges or other amounts are payable
pursuant to this ARTICLE III for any period prior to the Delivery Date.
SECTION 3.10 PAYMENTS. All payments of Charges and other sums
required to be paid hereunder to Landlord shall be in lawful money of the United
States of America and shall be paid to the Collection Agent at the address
designated therefor, or to such other person and/or at such other place as
Landlord and the City may jointly designate from time to time in writing.
SECTION 3.11 NET LEASE. This Lease shall be deemed and construed to
be a "triple net lease", and Tenant shall pay to Landlord, absolutely net
throughout the term of this Lease, all Charges and other sums payable hereunder,
free of any charges, assessments, Impositions or deductions of any kind and
without abatement, deferment, reduction, defense, counterclaim, demand, notice,
deduction or set-off of any kind, and under no circumstances or conditions,
whether now existing or hereafter arising, or whether beyond the present
contemplation of the parties, shall Landlord be expected or required to make any
payment of any kind whatsoever or be under any other obligation or liability
hereunder, except as otherwise expressly set forth herein. All costs, expenses,
charges, Impositions and other payments of every kind and nature whatsoever
relating to the Property, or the use, operation or maintenance thereof, which
may arise or become due during or in respect of the term of this Lease shall be
paid by Tenant, and Tenant assumes full responsibility for the condition,
operation, repair, alteration, improvement, replacement, maintenance and
management of the Project (which obligations, in the case of Tenant's Subway
Improvements, shall be governed by the Site 8 South Subway Agreement). Under no
circumstances or conditions, whether now existing or hereafter arising, or
whether beyond the present contemplation of the parties, shall Landlord be
expected or required to make any payment of any kind whatsoever or be under any
other obligation or liability hereunder except as herein otherwise expressly set
forth.
SECTION 3.12 NO OFFSET. Except as expressly provided for herein
(including, without limitation, in SECTIONS 3.1(c) and 5.1(c)(iv) hereof), no
happening, event, occurrence or
48
situation during the term of this Lease, whether foreseen or unforeseen, and
however extraordinary, shall permit Tenant to quit the Property or surrender
this Lease or shall relieve Tenant from Tenant's Obligations, or shall affect
this Lease in any way, it being the intention that the Obligations of Landlord
and Tenant hereunder shall be separate and independent covenants and agreements
and that the Charges shall continue to be payable in all events unless the
Obligations to pay the same shall be terminated pursuant to the express
provisions of this Lease. Tenant covenants and agrees that it will remain
obligated under this Lease in accordance with its terms.
SECTION 3.13 BOOKS AND RECORDS.
(a) RIGHT TO AUDIT. Tenant shall keep, or cause to be kept, true and
complete books of record and accounts in respect of matters that are required by
this Lease to be reported by Tenant to Landlord or that are monetary obligations
governed by or relating to this Lease and Tenant Obligations hereunder,
including monthly records of Adjusted Gross Revenues, PA Retail Adjusted Gross
Revenues, Roof Top Garden Adjusted Gross Revenues and Lobby Sublease Space
Adjusted Gross Revenues and records and calculations in respect of Theater
Surcharge, Tenant's Construction Work, Sales Tax Saving and Sales Tax Payments
Amounts. Tenant shall require, pursuant to the applicable Sublease, each
Subtenant of Retail Space, PA Retail Space or Common Elements Leaseable Space
that is required pursuant to the terms of its Sublease to pay percentage rent to
Tenant, to keep true and complete books of record and accounts in respect of
such Subtenant's business that are relevant to such percentage rent payment, in
all cases in accordance with Accounting Principles, or if Accounting Principles
are inapplicable to any expenditures, in accordance with sound accounting
principles consistently applied. Such records shall be located or made available
in New York City and shall be maintained as aforesaid for a period of not less
than six (6) years after the end of the applicable Lease Year to which such
records relate. Landlord and Landlord's accountants and other representatives
and the Comptroller of the City (the "Comptroller") shall have the right from
time to time to conduct a review of Tenant's books of record and accounts
relating to the relevant matters governed by or relating to this Lease and
Tenant Obligations hereunder (including Adjusted Gross Revenues, PA Retail
Adjusted Gross Revenues, Roof Top Garden Adjusted Gross Revenues, Lobby Sublease
Space Adjusted Gross Revenues and Sales Tax Savings) and Tenant shall cooperate
with the performance of such review. Each Sublease shall provide that Landlord
and Landlord's accountants and other representatives and the Comptroller shall
have the right from time to time to conduct a review of such Subtenant's books
of record and accounts relating to Percentage Rent payments, and shall require
such Subtenant to cooperate with the performance of such review. All such
reviews shall occur during regular business hours and upon not less than three
(3) days' prior written notice. The cost of such review shall be borne solely by
Landlord, except that if the results of such review determine that Tenant (or
any such Subtenant, as applicable), whether or not inadvertently, has
understated the Percentage Rent payable to Landlord (or percentage rent payments
payable to Tenant, as applicable) by more than five percent (5%) of what is
owed, then Tenant (or such Subtenant in the case of such percentage rent
payments) shall pay or shall reimburse Landlord on demand for payment of the
reasonable costs and expenses involved in such review.
(b) INCORRECT PAYMENTS OF CHARGES. Should any audit performed by
Landlord, Landlord's agent or designee disclose that Adjusted Gross Revenues, PA
Retail Adjusted Gross Revenues, Roof Top Garden Adjusted Gross Revenues, Lobby
Sublease Space Adjusted Gross Revenues or Sales Tax Savings were understated or
that Tenant otherwise provided information that led to an underpayment of (or on
account of) Charges, then any underpayments shall be paid to Landlord (i) within
five (5) days after Tenant has received notice of such underpayment from
49
Landlord, but such payment shall be without prejudice to Tenant's right to
dispute any such notice of underpayment or (ii) at Tenant's option, within five
(5) days after resolution of any dispute as to any such underpayment. Any
underpayment under this SECTION 3.13(b) shall bear interest at the Interest Rate
from the date on which the payment first should have been made to the date such
underpayment is paid. Any overpayment of Charges, after the resolution of any
dispute with respect thereto (together with interest at the Interest Rate from
the date of overpayment to the date such overpayment is credited or refunded),
shall be credited against the next installment(s) of Charges, provided that any
amount unrecovered at the Expiration Date shall be paid by Landlord to Tenant or
if Tenant exercises its option under ARTICLE V hereof of this Lease, shall be
allowed as a credit against the Purchase Price. If the sum of such credit and
any other credits against the Purchase Price exceeds the Purchase Price, then
Landlord shall pay Tenant on the Purchase Option Closing Date the amount by
which the aggregate of all credits against the Purchase Price exceeds the
Purchase Price. Any dispute as to any payment of charges or the calculation
thereof shall be resolved pursuant to arbitration as provided in SECTION 16.2
hereof.
(c) RIGHT TO PREPARE STATEMENTS. If Tenant shall fail to deliver to
Landlord any report or Verified Statement required by this ARTICLE III on or
prior to the due date thereof, in addition to any other rights or remedies
Landlord may have under this Lease and without thereby waiving such default by
Tenant, Landlord shall be entitled, after fifteen (15) Business Days' prior
notice to Tenant if Tenant shall have not cured such default within such period,
at Tenant's expense, to have such report or Verified Statement prepared by a
certified public accountant selected by Landlord. Landlord and such certified
public accountant shall have the right to review Tenant's relevant books and
records with respect to the Property relating to the relevant overdue report or
Verified Statement on demand and to make such copies thereof as either shall
reasonably require. All fees and expenses incurred in the preparation of any
such overdue Verified Statement or report shall be payable by Tenant on demand
as additional Charges hereunder.
(d) COPIES OF REPORTS. Tenant shall deliver to Landlord (i) promptly
upon the receipt or sending thereof copies of notices of default given or
received by Tenant with respect to any Sublease of any portion of the Retail
Space, PA Retail Space or Common Elements Leaseable Space and (ii) upon request
by Landlord, copies of reports received or given by Tenant from or to any
Subtenant which relate to (1) any financial or sales reports of such Subtenant
or (2) to any other components of Adjusted Gross Revenues, PA Retail Adjusted
Gross Revenues, Roof Top Garden Adjusted Gross Revenues or Lobby Sublease Space
Adjusted Gross Revenues.
(e) LANDLORD AND TENANT CONTESTS. Any statement prepared by or on
behalf of Landlord pursuant to SECTION 3.13(c) hereof or the results of any
audit conducted by or on behalf of Landlord pursuant to SECTION 3.13(a) hereof
shall be conclusive and binding upon Tenant unless Tenant notifies Landlord
within one hundred eighty (180) days after receipt thereof that it disputes the
correctness of such statement or results, which notice shall specify the
particular respects in which the same is claimed to be incorrect, and Tenant
pays the amount in dispute in accordance with such statement or results, without
prejudice to Tenant's position. If Landlord and Tenant are unable to resolve
such dispute within twenty (20) Business Days after receipt of Tenant's notice,
the dispute shall be submitted to arbitration for resolution pursuant to SECTION
16.2 hereof.
SECTION 3.14 ILLEGALITY. If any Charges shall be or become
uncollectible, reduced or required to be refunded because of any rent control or
similar act or law enacted by a Governmental Authority, Tenant shall enter into
such agreement(s) and take such other steps as Landlord may reasonably request
and as may be legally permissible to permit Landlord to collect the
50
maximum amounts which from time to time during the continuance of such rent
controls may be legally permissible (and not in excess of the amounts reserved
therefor under this Lease). Upon the termination of such rent controls or
similar act or law, (a) the Charges in question shall become and thereafter be
payable in accordance with the amounts reserved herein for the periods following
such termination, and (b) Tenant shall pay to Landlord, up to the maximum extent
legally permissible, an amount equal to (i) the amount of any Charges in
question which would have been paid pursuant to this Lease but for such rent
controls minus (ii) the amounts with respect to any such Charges paid by Tenant
during the period such rent controls were in effect.
SECTION 3.15 ADMINISTRATIVE CODE SECTION 11-208.1. For as long as
42DP or the City is Landlord and to the extent that the Administrative Code of
The City of New York Section 11-208.1 (or successor thereto) is then in force
and effect, Tenant shall submit income and expense statements of the type
required by such code section (or successor thereto) as if Tenant were the
"owner" of the Leased Unit as such terms are used in said Section 11-208.1, such
statements to be submitted within the time periods and to the address provided
for in said Section 11-208.1, and shall submit the same notwithstanding that
42DP or the City holds fee title to the Property, that the Property may
therefore not be "income-producing property" as that concept is used in Section
11-208.01, or that PILOT rather than real estate taxes are being paid with
respect to the Property.
SECTION 3.16 SURVIVAL. Tenant's and Landlord's Obligations and
rights under this ARTICLE III in respect of Charges that shall have accrued
prior to the expiration or earlier termination of this Lease, including Tenant's
Obligations to maintain and make available books and records with respect
thereto and Landlord's reimbursement Obligations contained in SECTIONS
3.1(a)(i)(C) and 32(d) hereof, shall survive the expiration or earlier
termination of this Lease.
SECTION 3.17 EXISTING VIOLATIONS. Landlord hereby agrees to pay or
otherwise remove all fines, penalties and other monetary charges imposed by
reason of the Existing Violations.
SECTION 3.18 END OF NYTC BENEFITS. In the event that NYTC or a
Related Entity of NYTC no longer is the owner of an interest in Tenant, then all
rights and benefits accruing specifically to NYTC under this ARTICLE III
(including without limitation the benefits provided to NYTC and its Related
Entities in SECTIONS 32(a) and 3.4(b) hereof) shall be deemed null and void and
of no further force and effect as of the date of such Transfer.
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ARTICLE IV
IMPOSITIONS
SECTION 4.1 IMPOSITIONS.
(a) PAYMENT. Subject to SECTIONS 4.1(b) and 4.1(c) hereof, Tenant
shall pay or shall cause to be paid, as and when the same become due, all
Impositions under this Lease attributable to the period from and after the
Delivery Date.
(b) APPORTIONMENTS. All Impositions for the fiscal year or tax year
in which the Delivery Date occurs or the term of this Lease expires shall be
apportioned; PROVIDED, HOWEVER, that if there shall be a Default or Event of
Default hereunder, Tenant shall not be entitled to receive any credit due to
Tenant on account of any such apportionment until such Default or Event of
Default has been cured.
(c) INSTALLMENTS. Where any Imposition is permitted by Legal
Requirements to be paid in installments, Tenant may pay such Imposition in
installments as and when each such installment becomes due.
SECTION 4.2 PAYMENT.
(a) OBLIGATION TO PAY. Tenant shall pay all Impositions directly to
the appropriate Governmental Authority or other Person entitled to receive the
same and shall pay such Impositions before any fine, penalty, interest or other
cost shall become due or be imposed by operation of law.
(b) EVIDENCE OF PAYMENT. At Landlord's request, Tenant shall furnish
Landlord, within twenty-five (25) Business Days after the date when an
Imposition is required to be paid hereunder, (i) a copy of any xxxx received by
Tenant relating to such Imposition and (ii) copies of cancelled checks or
official receipts of the appropriate taxing authority or other proof reasonably
satisfactory to Landlord evidencing the payment thereof.
SECTION 4.3 RIGHT TO CONTEST. (a) Tenant may, if it shall so desire,
protest or contest the validity or amount of any Imposition, in whole or in
part, without paying at the time of such protest or contest such Imposition;
PROVIDED, HOWEVER, that if Tenant has not elected to pay such Imposition:
(i) the same is done by Tenant upon prior written notice to
Landlord, at Tenant's sole cost and expense and with due diligence and
continuity so as to resolve such protest or contest promptly;
(ii) neither the Property nor any part thereof is or will be
in imminent danger of being forfeited or lost by reason of such protest or
contest;
(iii) Tenant shall either bond such Imposition or deposit with
Landlord, or provide Landlord with, security in an amount and in form and
substance reasonably satisfactory to Landlord (it being agreed that an
acceptable guaranty of an Acceptable Guarantor shall be security reasonably
satisfactory to Landlord under this SECTION 4.3(a)(iii)) for application toward
the cost of curing or removing the same from record and to secure Landlord
against any loss or damage arising out of such protest or contest or the
deferral of Tenant's performance or compliance;
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(iv) if an in rem action with respect to the non-payment of
such Imposition has been commenced or any writ or order is issued under which
the Property or any part thereof may be sold or forfeited, Tenant shall
thereafter diligently proceed to cure or remove the same from record or take
such other actions in lieu thereof as are legally permissible to toll or enjoin
any such action, sale or forfeiture;
(v) such protest or contest shall not subject Landlord to
prosecution for a criminal offense or a claim for civil liability (it being
agreed that assessment of the Imposition, together with interest and penalties
thereon, shall not be deemed civil liability for the purpose of this clause);
(vi) Tenant agrees in writing to indemnify Landlord from and
against any and all Claims upon or arising out of such protest or contest; and
(vii) no Event of Default shall have occurred and be
continuing.
(b) If Tenant receives any notice that Tenant or the Property, or
any part thereof, is in default under or is not in compliance with any of the
foregoing SECTIONS 4.3(a)(i) through 4.3(a)(vi) hereof, or notice of any
proceeding initiated under or with respect to any of the foregoing SECTIONS
4.3(a)(i) through 43(a)(vi) hereof, Tenant will promptly furnish a copy of such
notice to Landlord. Nothing herein contained, however, shall be so construed as
to allow such Imposition to remain unpaid for such length of time as shall
permit the Property, or any part thereof, to be sold by any Governmental
Authority for the non-payment of the same, and, if at any time in the judgment
of Landlord, reasonably exercised, it shall become necessary or proper to do so,
Landlord, after not less than twenty (20) Business Days' written notice to
Tenant (unless such sale is scheduled prior to the expiration of any shorter
period), may pay or apply the moneys deposited in accordance with this SECTION
4.3 or so much thereof as may be required to the payment of the challenged
Imposition to prevent the sale of the Property or any part thereof. If the
amount so deposited as aforesaid shall exceed the amount required to satisfy the
challenged Imposition as finally fixed and determined, the excess (or the entire
amount if no such payment is required) shall be paid to Tenant, or in case there
shall be any deficiency, the amount of such deficiency shall be forthwith paid
by Tenant. Promptly following resolution of the contest and payment by Tenant of
any amounts due, Landlord shall refund to Tenant any monies so deposited and not
applied to payment of the Imposition. Any moneys so deposited shall be held in
an interest-bearing account at a Lending Institution, and any interest earned
thereon, shall be refunded, applied or paid in the same manner as the amount
deposited is refunded, applied or paid in accordance with the immediately
preceding two (2) sentences.
(c) Landlord shall not be required to join in any action or
proceeding referred to in this SECTION 4.3 unless required by any Legal
Requirement in order to make such action or proceeding effective, in which event
any such action or proceeding may be pursued by Tenant (upon prior written
notice to Landlord) in the name of, but without expense to, Landlord. Tenant
hereby agrees to indemnify Landlord from and against any and all Claims incurred
or suffered by Landlord in its proprietary capacity and arising out of any such
action or proceeding. The provisions of this SECTION 4.3(c) shall survive the
expiration or earlier termination of this Lease.
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ARTICLE V
PURCHASE OPTION
SECTION 5.1 PURCHASE OPTION.
(a) TENANT'S EXERCISE OF PURCHASE OPTION. After the Scheduled PILOT
Conversion Date or as otherwise expressly permitted under this Lease, Tenant
shall have the right, which right shall be exercised by notice to Landlord (the
"PURCHASE OPTION NOTICE"), to purchase (or have a designee purchase) all of the
right, title and interest of 42DP (if any) and the City in this Lease and in the
Property (the "PURCHASE OPTION") on a date identified in the Purchase Option
Notice and being no less than ninety (90) days after the date of the Purchase
Option Notice (such date, the "PURCHASE OPTION CLOSING DATE") and on the terms
and conditions set forth in this ARTICLE V. The Purchase Option Notice may be
delivered prior to the Scheduled PILOT Conversion Date so long as the Purchase
Option Closing Date set forth therein occurs on or subsequent to the Scheduled
PILOT Conversion Date.
(b) PURCHASE OPTION CLOSING DATE. The closing of Tenant's purchase
pursuant to the Purchase Option shall take place on the Purchase Option Closing
Date. Tenant may adjourn the Purchase Option Closing Date, on up to two (2)
occasions, so long as Tenant notifies Landlord of each such adjournment at least
five (5) Business Days prior to any applicable scheduled Purchase Option Closing
Date; PROVIDED, HOWEVER, that Tenant may adjourn the Purchase Option Closing
Date on additional occasions so long as Tenant pays all of Landlord's costs
incurred on account of such adjournment.
(c) CONDITIONS TO CLOSING. Closing of the transfer of fee title to
the Property pursuant to the Purchase Option shall be conditioned on the
following:
(i) The Purchase Price shall be paid to Landlord on the
Purchase Option Closing Date.
(ii) Appropriate adjustments of all Charges, apportioned as of
the Purchase Option Closing Date, shall be made between Tenant and Landlord on
the Purchase Option Closing Date.
(iii) If, on the Purchase Option Closing Date, there shall be
any dispute between Landlord and Tenant as to any Charges then due and payable,
the closing shall proceed as scheduled and Tenant shall (A) pay to Landlord, on
the Purchase Option Closing Date, the undisputed portion of the balance of the
Charges apportioned as of the Purchase Option Closing Date and (B) deposit with
the Depositary cash or cash-equivalents (e.g., an unconditional, irrevocable
letter of credit, U.S. Government Securities in bearer form and/or certificates
of deposit issued by Lending Institutions in bearer form) in an amount equal to,
and as security for, the disputed Charges (together with an amount equal to the
reasonably estimated interest at the Interest Rate to accrue thereon for a
two-year period); PROVIDED, HOWEVER, if the amount in dispute is equal to or
less than $50,000, Landlord will accept a guaranty of NYTC for the total amount
in dispute to be adequate security for the purposes of clause (B) above. At such
time as the dispute is resolved, the additional amount, if any, still owing
shall be paid to Landlord (with interest at the Interest Rate). Upon such
payment, any excess security (and any interest earned thereon) shall be refunded
or returned to Tenant. Tenant's and Landlord's obligations to make any payment
pursuant to this SECTION 5.1(b)(iii) with respect to Charges shall survive the
termination of this Lease.
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(iv) If, on the Purchase Option Closing Date, there shall be
an unresolved tax contest initiated by Tenant pursuant to SECTION 3.1(c)(i)
hereof in respect of the Property, Tenant shall nevertheless pay the full amount
of PILOT then due on the Purchase Option Closing Date for the applicable period.
Landlord will deposit any disputed portion of such PILOT with the Depositary, as
escrowee for such funds pursuant to an escrow agreement entered into by
Landlord, Tenant and Depositary on the Purchase Option Closing Date. It is
agreed that such escrowed funds shall be distributed in accordance with the
results of the tax contest. Upon receiving joint instructions from Landlord and
Tenant as to the disposition of such escrowed funds pursuant to the preceding
sentence, Landlord and Tenant shall instruct Depositary to immediately so
disburse the escrowed funds.
(v) Landlord shall not be obligated to convey the Property to
Tenant and Tenant shall be deemed in default under this ARTICLE V unless Tenant,
in addition to all other sums due on the Purchase Option Closing Date, pays to
Landlord in full all Charges due and not disputed pursuant to SECTIONs 5.1(iii)
and 5.1(iv) hereof as of the Purchase Option Closing Date.
(vi) Tenant shall provide to Landlord (A) a certificate of
Tenant, which shall be specified by a Qualified Certifying Party, stating that,
as of the Purchase Option Closing Date, Tenant is fully familiar with the
Property, the condition thereof and the Permitted Encumbrances, and Tenant
accepts title to same in their "AS IS" condition without any representation or
warranty, express or implied, in fact or by law, of Landlord, NYCEDC, ESDC or
the City as to the title thereto, the nature, condition or viability thereof, or
the use or uses to which the Property or any part thereof may be put, (B) an
agreement, in a form reasonably satisfactory to Landlord, providing for the
survival of any of Tenant's Obligations expressly stated herein to survive this
Lease and (C) all other documentation customarily entered into in the connection
with the full and complete transfer of interest in property in New York City.
(d) CONDITION OF TITLE. On the Purchase Option Closing Date, fee
simple title in and to the Property shall be conveyed to Tenant or Tenant's
designee or designees, subject only to this Lease, any Severance Subleases, any
Subleases, the Permitted Encumbrances, and all matters and encumbrances
affecting title to which this Lease is subject resulting from a Person claiming
by, through or under Tenant.
(e) DEED. On the Purchase Option Closing Date, 42DP and/or the City,
as applicable, shall deliver to Tenant or Tenant's designee or designees one or
more bargain and sale deeds without covenant against grantor's acts, in proper
statutory short form for recording, duly executed and acknowledged, in order to
convey to Tenant or its designee the fee simple title to the Property in
accordance with the provisions of SECTION 5.1(d) hereof, and such other
reasonable and customary documents that a reputable title insurance company
licensed to do business in the State of New York may request in order to convey
title in the condition provided for in SECTION 5.1(d) hereof. If Tenant is the
grantee, then, at the request of Tenant, each such deed shall contain provisions
expressly negating any merger of Tenant's fee and leasehold estates as a result
of such conveyance. Tenant may likewise request a separate or specific
assignment of Landlord's interest under this Lease in order to avoid the merger
of Tenant's fee and leasehold estates.
(f) TAX RETURNS. On the Purchase Option Closing Date, each of the
parties shall duly execute and, if applicable, acknowledge any and all transfer
tax returns required in connection with the delivery and/or recording of the
deed or deeds described in SECTION 5.1(e) hereof which shall reflect the
Purchase Price. All taxes imposed pursuant to such returns, whether payable by
Landlord
55
and/or Tenant under applicable law, shall be paid by Tenant, who shall also pay
the documentary stamps, if any, to be affixed to the deed or deeds). The tax
returns and the amount of such taxes and documentary stamps shall be delivered
to the purchaser's title insurer on the Purchase Option Closing Date for
delivery to the appropriate Governmental Authorities (or delivered directly to a
reputable title insurance company for delivery to the appropriate Governmental
Authorities in the event that the purchaser does not have a title insurer).
(g) TENANT'S LIABILITIES. If, after giving the Purchase Option
Notice, Tenant fails to purchase the Property in accordance with the provisions
hereof, Tenant shall reimburse the Public Parties, within seven (7) Business
Days of a request therefor, for all expenses incurred by the Public Parties in
connection with, and in contemplation of, the failed exercise of the Purchase
Option.
SECTION 5.2 CASUALTY TO, OR CONDEMNATION OF, THE PROPERTY. If all or
any portion of the Improvements are damaged or destroyed by Casualty, or if
condemnation proceedings referred to in the provisions of SECTION 12.1 hereof
are instituted, and if Tenant theretofor has exercised the Purchase Option in
accordance with the provisions of this Lease:
(a) Landlord shall assign to Tenant, on the Purchase Option Closing
Date, all of Landlord's interest in and to so much of the insurance proceeds or
condemnation award, as the case may be, as has not been paid to Depositary; and
(b) Depositary shall pay on the Purchase Option Closing Date the
Restoration Funds (i) first, to itself and Landlord, to the extent, if any, of
the necessary and proper expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by Depositary and Landlord in the
collection of such Restoration Funds as of the Purchase Option Closing Date, and
(ii) the balance to Tenant. Landlord shall recognize any assignment by Tenant to
a Recognized Mortgagee of the balance of such Restoration Funds.
SECTION 5.3 TERMINATION OF RIGHT TO PURCHASE. If condemnation
proceedings referred to in SECTION 12.1(a) hereof commence after the purchase
option notice is given and before the Purchase Option Closing Date, Tenant may
either (a) withdraw such notice, in which event the parties shall have no
further rights or obligations under this ARTICLE V, or (b) proceed with such
purchase without abatement of the Purchase Price on account of such condemnation
proceeding, in which event (i) such proceedings shall not be an objection to
title and (ii) if the title to the Property shall have vested in the condemnor
prior to the Purchase Option Closing Date, Landlord shall not be required to
deliver a deed (except as to any portion of the Property not taken in such
condemnation), but only an assignment on the Purchase Option Closing Date of the
award in such proceeding, in form and substance reasonably satisfactory to
Tenant.
SECTION 5.4 SURVIVAL OF CERTAIN OBLIGATIONS. Tenant's obligation to
pay Theater Surcharge shall survive any exercise of the Purchase Option.
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ARTICLE VI
CONSTRUCTION OF THE PROJECT
SECTION 6.1 CONSTRUCTION OF THE PROTECT.
(a) DEMOLITION. Tenant shall undertake, at its cost, the Demolition
Work pursuant to the applicable terms of this ARTICLE VI.
(b) COMMENCEMENT AND SUBSTANTIAL COMPLETION OF TENANT'S CONSTRUCTION
WORK.
(i) GENERALLY. Tenant shall (A) Commence Construction of
Tenant's Construction Work as soon as is reasonably practicable, but in any
event not later than the Fixed Construction Commencement Date (subject to
Unavoidable Delays), TIME BEING OF THE ESSENCE as to such date, (B) following
Commencement of Construction of Tenant's Construction Work, perform or cause to
be performed Tenant's Construction Work with diligence and continuity (subject
to Unavoidable Delays), and (C) Substantially Complete Tenant's Construction
Work as soon as is reasonably practicable, but in any event not later than the
Fixed Substantial Completion Date, TIME BEING OF THE ESSENCE as to such date
(subject to Unavoidable Delays). Tenant acknowledges, without waiving any of its
rights under SECTIONS 6.1(b)(ii) or 6.1(c)(vi) hereof, that the obtaining of
financing with respect to the performance of its construction of the New
Building is not a condition precedent to Tenant's obligations under this ARTICLE
VI.
(ii) EXTENSION DUE TO CERTAIN LITIGATION. In addition to any
extension to which Tenant is entitled due to the occurrence of Unavoidable
Delays, in the event that, at any time after the Delivery Date, but prior to the
Commencement of Construction, (A) litigation is pending against ESDC or Landlord
in connection with the Property or the Project (excluding EDPL valuation
litigation), which litigation (1) is not or was not instituted, financed or
supported by any of Tenant, NYTC, FC, an Equity Investor or any of its or their
Related Entities and (2) has not resulted in an injunction barring Commencement
of Construction of Tenant's Construction Work, and (B) Tenant, in its reasonable
and good faith judgment, determines that such litigation prevents or
significantly impedes Commencement of Construction of Tenant's Construction Work
(including, without limitation, by preventing or significantly impeding Tenant's
ability to obtain construction financing for the Project), then Tenant shall
have the right to extend the Fixed Construction Commencement Date (by written
notice to Landlord indicating the exercise of such option and setting forth the
basis for such extension) by a number of days equal to the number of days (x)
such litigation remains pending and (y) Tenant, in its good faith judgment,
determines that the prevention or impediment resulting from such litigation is
continuing (the period the Fixed Construction Commencement Date is extended
pursuant to this SECTION 6.1(b)(ii), the "SECTION 6.1(b)(ii) EXTENSION PERIOD").
(iii) NO PUBLIC PARTY OBLIGATION. The parties acknowledge and
agree that none of the Public Parties shall be obligated to perform any of the
Tenant's Construction Work or any other work on the Land or the Existing
Improvements or to provide any funds to Tenant or any Subtenant in connection
therewith.
(c) OTHER EXTENSIONS. Notwithstanding the provisions of SECTION
6.1(b)(i) hereof, the Fixed Construction Commencement Date and/or the Fixed
Substantial Completion Date may be extended as follows.
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(i) In the event of the occurrence of the First Non-Delivery
Event, the Fixed Construction Commencement Date shall be deemed to be
automatically extended by three (3) months (the "FIRST EXTENSION PERIOD") to the
date that is fifteen (15) months after the Delivery Date; it being agreed that,
following the occurrence of the First Non-Delivery Event, if Tenant Commences
Construction prior to the last day in the First Extension Period, then the
36-month period between the Fixed Construction Commencement Date and the Fixed
Substantial Completion Date referred to in SECTION 1.1(a)(cxxvii) hereof (the
"FIXED CONSTRUCTION PERIOD") shall automatically be extended by the number of
days (maximum of ninety (90) days) that Tenant Commences Construction prior to
the last day of the First Extension Period.
(ii) In the event of the occurrence of the Third Non-Delivery
Event, the Fixed Construction Commencement Date shall be deemed to be
automatically extended by six (6) months (the "SECOND EXTENSION PERIOD") to the
date that is eighteen (18) months after the Delivery Date; it being agreed that
following the occurrence of the Third Non-Delivery Event, if Tenant Commences
Construction prior to the last day in the Second Extension Period, then the
Fixed Construction Period shall automatically be extended by the number of days
(maximum of one hundred eighty (180) days) that Tenant Commences Construction
prior to the last day of the Second Extension Period.
(iii) In addition to the extensions described in Sections
6.1(c)(i) and 6.1(c)(ii) hereof, if the Delivery Date occurs prior to the
occurrence, if any, of the Third Non-Delivery Event, Tenant may, at and to the
extent of Tenant's election, (A) further extend the Fixed Construction
Commencement Date by up to three (3) months by making a payment to Landlord in
accordance with SECTION 6.1(c)(v) hereof and (B) further extend the Fixed
Construction Period by up to six (6) months by making a payment to Landlord in
accordance with SECTION 6.1(c)(v) hereof; PROVIDED, HOWEVER, that in the event
that Tenant purchases less than the 3-month extension permitted pursuant to
clause (iii)(A) of this SECTION 6.1(c), any such unpurchased days ("EXCESS
DAYS") may be purchased by Tenant from time to time, by making a payment to
Landlord in accordance with SECTION 6.1(c)(v) hereof, so as to further extend
such extension period, by the number of Excess Days so purchased by Tenant. Any
election made by Tenant for the extensions or further extension provided for in
this SECTION 6.1(c)(iii) shall be for a minimum of one (1) month at a time.
(iv) In addition to the extensions set forth in SECTIONS
6.1(c)(i) and 6.1(c)(ii) hereof, if the Delivery Date occurs subsequent to the
occurrence, if any, of the Third Non-Delivery Event, Tenant may, at and to the
extent of Tenant's election, (A) further extend the Fixed Construction
Commencement Date by up to six (6) months by making a payment to Landlord in
accordance with SECTION 6.1(c)(v) hereof and (B) further extend the Fixed
Construction Period by up to six (6) months by making a payment to Landlord in
accordance with SECTION 6.1(c)(v) hereof, PROVIDED, HOWEVER, that in the event
that Tenant purchases less than the 6-month extension permitted pursuant to
clause (iv)(A) of this SECTION 6.1(c), any such unpurchased Excess Days may be
purchased by Tenant from time to time, by making a payment to Landlord in
accordance with SECTION 6.1(c)(v) hereof, so as to further extend such extension
period, by the number of Excess Days so purchased by Tenant. Any election made
by Tenant for the extension or further extension provided for in this SECTION
6.1(c)(iv) shall be for a minimum of one (1) month at a time.
(v) Tenant shall exercise any extension permitted by this
SECTION 6.1(c) by written notice to Landlord, which notice (A) shall set forth
the period by which Tenant desires to extend the Fixed Construction Commencement
Date or the Fixed Construction Period, as applicable, and (B) shall be
accompanied by a payment to Landlord, in the case of any extensions pursuant to
58
clause (iii) or (iv) of this SECTION 6.1(c), in the amount equal to $20,000 per
day (for a minimum of one month) for each day that the Fixed Construction
Commencement Date or the Fixed Construction Period, as applicable, is so
extended (it being agreed that in the event that Excess Site Acquisition Costs
exist for the calendar quarter in which Landlord receives Tenant's notice given
under this SECTION 6.1(c)(v) any payment to Landlord required under this SECTION
6.1(c), in lieu of payment in cash by Tenant, instead shall be credited by
Landlord against such Excess Site Acquisition Costs in respect to the calendar
quarter in which Landlord receives such notice).
(vi) In addition to the other extensions provided for in this
SECTION 6.1(c), if (A) Tenant is seeking construction financing for the
construction of the New Building, (B) the proposed construction lender requires
as a condition to entering into such construction financing that Tenant obtain
insurance against terrorist acts, (C) such insurance is generally required by
lenders with respect to loans for the construction or refinancing of buildings
in midtown Manhattan of a size and nature comparable to the New Building, (D)
Tenant is using its best efforts to obtain such insurance and (E) such insurance
is not Commercially Available, then for so long as Tenant provides evidence,
reasonably satisfactory to Landlord, that the conditions listed in this Section
6.1(c)(vi) continue to be met, Tenant shall be entitled to an extension of the
Fixed Commencement Construction Date.
(d) APPROVAL OF ARCHITECTS.
(i) DESIGN ARCHITECT. The design architect for any
Construction Work (other than Interior Construction Work or Demolition Work)
governed by any element of the DUO shall be the Design Architect. If Tenant
shall desire to replace Xxxxx Xxxxx Building Workshop or any replacement design
architect previously approved by Landlord as the Design Architect, then such
replacement Design Architect proposed by Tenant shall be approved by Landlord
(such approved replacement Design Architect, the "REPLACEMENT DESIGN
ARCHITECT"), so long as the proposed Replacement Design Architect, in Landlord's
reasonable judgment, meets all of the following criteria (the "REPLACEMENT
DESIGN ARCHITECT APPROVAL CRITERIA"): (A) the proposed Replacement Design
Architect is known for artistically combining architecture and engineering in
inventive and unique ways; (B) the proposed Replacement Design Architect is
capable of creating architecture that sensitively and imaginatively addresses
the needs of users of the improvement as well as user of adjacent city
sidewalks; (C) the proposed Replacement Design Architect is known for sensitive
and imaginative use of materials to resolve problems in new ways; (D) the
proposed Replacement Design Architect is known for an influential, diverse body
of work, all of which is, as a whole, internationally recognized for high
standards of excellence in architecture; (E) the proposed Replacement Design
Architect is the recipient of international awards and prizes; (F) the proposed
Replacement Design Architect has experience in creating architecture that is
responsive to complex urban sites; and (G) the proposed Replacement Design
Architect will be involved in all phases of the design, including an active role
while the New Building is under construction. In the event that Tenant proposes
to replace the Design Architect with an architect that, in Landlord's reasonable
judgment, does not meet the Replacement Design Architect Approval Criteria, then
Landlord may approve or disapprove the proposed Design Architect in Landlord's
sole discretion. Any proposed Replacement Design Architect shall, in any event,
have substantial experience in construction projects that are comparable in
scope and visibility to the New Building and shall not be a Prohibited Person.
If Landlord fails to approve or reject any architect nominated by Tenant to be a
Design Architect within sixteen (16) Business Days after the written submission
to Landlord of such architect's name and other information (including adequate
portfolio information) sufficiently detailed to permit Landlord to make a
reasoned judgment of the appropriateness of the proposed
59
architect for the 00xx Xxxxxx Project, or Landlord fails to make reasonable
requests for additional information related thereto within such time period and
thereafter to approve or reject such architect within eleven (11) Business Days
after written submission of such additional information as Landlord shall have
reasonably requested, Tenant shall have the right to give Landlord a reminder
notice, which reminder notice shall contain the following caption in bold and
capitalized type:
YOUR APPROVAL OF ______ AS THE DESIGN ARCHITECT SHALL BE DEEMED
GIVEN IF YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN FIVE (5)
BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject the proposed architect within five (5)
Business Days after its receipt of such reminder notice, such architect shall be
deemed approved by Landlord. Any rejection of an architect by Landlord shall be
accompanied by specific reasons set forth in reasonable detail.
(ii) OTHER ARCHITECTS AND ENGINEERS. Except in respect of the
Design Architect (which shall be approved in accordance with Section 6.1(d)(i)
hereof), the Production Architect and each other architect and engineer proposed
to be engaged in respect to any Construction Work (other than Interior
Construction Work or demolition work (other than the Demolition Work)) (A)
governed by any element of the DUO, (B) affecting a Structural Component (other
than by having a Nonadverse Structural Effect), or (C) of a value of greater
than $1,000,000 (which amount shall be Adjusted for Inflation from the
Substantial Completion Date), shall be approved by Landlord: (1) in respect of
any Construction Work subject to clause (A) of this SECTION 6.1(d)(ii), in
Landlord's sole discretion; and (2) in respect of Construction Work subject only
to clause (B) or (C) of this SECTION 6.1(d)(ii), in Landlord's approval not to
be unreasonably withheld. Each such Architect shall have substantial experience
in construction projects that are comparable in scope to such architect's
intended work at the Project and shall not be a Prohibited Person. Each such
Engineer shall (x) be of recognized standing among its peers, (y) have at least
ten (10) years experience in providing engineering services in respect of
highrise buildings in urban centers and (z) not be a Prohibited Person. If
Landlord fails to approve or reject any architect nominated by Tenant to be an
Architect (other than the Design Architect), or engineer nominated by Tenant to
be an Engineer, as the case may be, within sixteen (16) Business Days after the
written submission to Landlord of such architect's name and other information
(including adequate portfolio information) sufficiently detailed to permit
Landlord to make a reasoned judgment of the appropriateness of the proposed
architect or engineer, as the case may be, for the 00xx Xxxxxx Project, or
Landlord fails to make reasonable requests for additional information related
thereto within such time period and thereafter to approve or reject such
architect or engineers, as the case may be within eleven (11) Business Days
after written submission of such additional information as Landlord shall have
reasonably requested, Tenant shall have the right to give Landlord a reminder
notice, which reminder notice shall contain the following caption in bold and
capitalized type:
YOUR APPROVAL OF ______ AS AN ARCHITECT/ENGINEER SHALL BE DEEMED
GIVEN IF YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN FIVE (5)
BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject the proposed architect or engineers, as
the case may be, within five (5) Business Days after its receipt of such
reminder notice, such architect or engineer, as the came may be, shall be deemed
approved by Landlord. Any rejection of an architect or engineer, as
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the case may be, by Landlord shall be accompanied by specific reasons setting
forth in reasonable detail the basis for such rejection.
(e) APPROVAL OF CONTRACTORS.
(i) GENERAL STANDARD; PROHIBITED PERSONS. All Construction
Work shall be performed and/or managed by one or more reputable and responsible
general contractor(s) (or if Tenant, or any Subtenant, as the case may be, hires
contractors instead of a general contractor, such contractors) or construction
manager(s). No general contractor, construction manager, Major Contractor or
other contractor that is engaged to do Construction Work shall be a Prohibited
Person. Tenant shall cause such restriction to be inserted in each Sublease.
(ii) GENERAL CONTRACTOR(S) AND CONSTRUCTION MANAGER(S). Each
general contractor and/or construction manager engaged in respect of Tenant's
Construction Work shall be subject to the approval of Landlord. Landlord
approves, on the date hereof, those general contractors and construction
managers listed on EXHIBIT M attached hereto (it being understood that such
approval of Landlord (A) is valid for a period ending on the earlier of (1) the
date that is five (5) years after the date hereof and (2) the occurrence of any
material change in the ownership of the applicable general contractor or
construction manager, as the case may be and (B) is not an approval of any
proposed general contractor construction manager's Prohibited Person status).
Tenant shall deliver to Landlord and update as necessary from time to time upon
request therefor, a list identifying to Landlord each general contractor and
construction manager that is a member of the Development Team. Landlord shall
have the right to disapprove any such general contractor or construction manager
only: [a] if such general contractor or construction manager is a Prohibited
Person; or [b] if such general contractor or construction manager, in Landlord's
reasonable judgment, has demonstrated a failure, based on prior job performance,
to exercise due care in the performance of the work for which such contractor
may be hired in respect of the New Building (it being agreed that no Person
listed on EXHIBIT M attached hereto may be disapproved by Landlord on the basis
described in this clause (b) of this SECTION 6.1(e)(ii)). If Landlord fails to
approve or reject any such general contractor or, construction manager within
eleven (11) Business Days after the written submission to Landlord of such
Person's name, address, phone number and EIN (as well as those Principals
thereof) or Landlord fails to make reasonable requests for additional
information related thereto within such time period and thereafter to approve or
reject such general contractor or construction manager within six (6) Business
Days after written submission of such additional information as Landlord shall
have reasonably requested, Tenant shall have the right to give Landlord a
reminder notice, which reminder notice shall contain the following caption in
bold and capitalized type:
YOUR APPROVAL OF ______ AS A MEMBER OF A DEVELOPMENT TEAM SHALL BE
DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN
FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject such proposed member of the Development
Team within five (5) Business Days after its receipt of such reminder notice,
such proposed member of the Development Team shall be deemed approved by
Landlord. Any rejection of such a member of the Development Team by Landlord
shall be accompanied by specific reasons setting forth in reasonable detail the
bases for such rejection.
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(iii) MAJOR CONTRACTORS. Prior to the time at which Tenant
solicits any bids for labor or materials for any Construction Work (other than
Interior Construction Work) governed by any element of the DUO or affecting a
Structural Component (other than by having a Nonadverse Structural Effect),
Tenant shall furnish Landlord for its approval (to the extent hereinafter
provided) a list of all Persons Tenant intends to solicit for any such work who,
if so selected, would (a) have a contract in respect of the Property amounting
to a value of greater than $1,000,000 (which amount shall be Adjusted for
Inflation from the Substantial Completion Date), or (b) otherwise be responsible
for an item that is governed by the DUO or affects a Structural Component, other
than by having a Nonadverse Structural Effect (any such contractor, a "MAJOR
CONTRACTOR"). The list shall state the name, address, phone number and EIN of
each such Major Contractor and each of its Principals and in what capacity such
Major Contractors would be performing work at the Property. Landlord shall have
the right to disapprove any Major Contractor only: (1) if such Major Contractor
is a Prohibited Person; or (2) if such Major Contractor, in Landlord's
reasonable judgment, demonstrated a failure, based on prior job performance, to
exercise due care in the performance of the work for which such Major Contractor
may be hired in respect of the New Building (it being agreed that no Person
listed on EXHIBIT N attached hereto may be disapproved by Landlord on the basis
described in this clause (2) of this SECTION 6.1(e)(iii)). If Landlord fails to
approve or reject any Major Contractor within eleven (11) Business Days after
the receipt by Landlord of such Major Contractor's name, address, phone number
and EIN (and those of its Principals), or Landlord fails to make reasonable
requests for additional information related thereto within such time period and
thereafter to approve or reject such Major Contractor within six (6) Business
Days after written submission of such additional information as Landlord shall
have reasonably requested, Tenant shall have the right to give Landlord a
reminder notice, which reminder notice shall contain the following caption in
bold and capitalized type:
YOUR APPROVAL OF ______ AS A MAJOR CONTRACTOR SHALL BE DEEMED GIVEN IF
YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS
FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject the proposed Major Contractor within five
(5) Business Days after its receipt of such reminder notice, such Major
Contractor shall be deemed approved by Landlord. Any rejection of a Major
Contractor by Landlord shall be accompanied by specific reasons set forth in
reasonable detail. Landlord approves, on the date hereof, the Major Contractors
listed on EXHIBIT N attached hereto.
SECTION 6.2 PLANS AND SPECIFICATIONS.
(a) APPROVAL OF PLANS AND SPECIFICATIONS. (i) APPROVAL STANDARD. In
the event that the Design Architect is Xxxxx Xxxxx Building Workshop, or a
Replacement Design Architect approved or deemed approved by the Landlord in
accordance with the Replacement Design Architect Approval Criteria, the standard
for approval of all DUO design reviews shall be "Landlord's reasonable
judgment". In the event that the Design Architect is not Xxxxx Xxxxx Building
Workshop, or a Replacement Design Architect approved or deemed approved by the
Landlord in accordance with the Replacement Design Architect Approval Criteria,
the standard for all DUO design reviews shall be "Landlord's sole discretion".
(ii) APPROVAL OF SCHEMATIC DESIGN PLANS. Prior to the date
hereof, Landlord has reviewed the Schematic Design Plans and, having deemed the
Schematic Design Plans (other
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than the items listed in that certain letter, dated as of the date hereof, from
Landlord to NYTC and Forest City Xxxxxx Companies (the "DECEMBER LETTER") a copy
of which is attached hereto as EXHIBIT 1-3) to be in accordance with the DUO,
has approved the Schematic Design Plans (other than the items listed in the
December Letter). Promptly after the date hereof, Tenant shall submit the items
listed in the December Letter to Landlord, and Landlord shall have the right to
approve or disapprove the same in Landlord's reasonable discretion with respect
to the compliance of same with the DUO (the items listed in the December Letter,
once approved by Landlord in accordance with this SECTION 6.2(a)(ii), together
with the Schematic Design Plans, the "APPROVED SCHEMATIC DESIGN PLANS").
Landlord hereby approves the design for Tenant's Subway Improvements, as such
design is depicted in the Site 8 South Subway Agreement as in effect on the date
hereof.
(b) SUBMISSION AND REVIEW OF PROPOSED DESIGN DEVELOPMENT PLANS.
Prior to Tenant's first submittal of Final Plans and Specifications to the New
York City Buildings Department prior to the Commencement of Construction of the
New Building, Tenant shall submit to Landlord the proposed Design Development
Plans (in both standard architectural drawings and in electronic format
(including CAD drawings)) solely so that Landlord may determine whether the
proposed Design Development Plans conform to the Approved Schematic Design Plans
and otherwise comply with DUO. Landlord's approval shall be governed by the
applicable provisions of SECTION 6.2(a)(i) hereof (it being acknowledged and
agreed that the design approval process set forth in this SECTION 6.2 is an
iterative process that may require at least six (6) months from submittal to
Landlord of the proposed Design Development Plans until Landlord's approval may
be obtained). If Landlord determines that the proposed Design Development Plans
conform to the Approved Schematic Design Plans, Landlord shall so notify Tenant.
If Landlord determines that the proposed Design Development Plans do not so
conform, Landlord shall so notify Tenant, specifying in reasonable detail in
what respects the proposed Design Development Plans do not so conform, and
Tenant shall revise them to so conform and shall resubmit the proposed Design
Development Plans to Landlord for review for that purpose. Landlord shall be
deemed to have approved any portions of the proposed Design Development Plans as
to which Landlord does not expressly notify Tenant, as set forth in the
immediately preceding sentence, of such non-conformity. The initial review by
Landlord of the proposed Design Development Plans shall be carried out within
twenty (20) Business Days of the date of the submission thereof by Tenant and
any subsequent review by Landlord of any revisions thereto shall be carried out
within fifteen (15) Business Days of the date of Tenant's submission of such
revision. In the case of resubmissions or revisions, Landlord may not disapprove
any matter previously submitted and approved or deemed approved, except to the
extent that such resubmission or revision affects the matter so approved or
deemed approved.
(c) SUBMISSION AND REVIEW OF PROPOSED FINAL PLANS AND
SPECIFICATIONS. Prior to Tenant's first submittal of Final Plans and
Specifications to the New York City Buildings Department prior to the
Commencement of Construction of the New Building, Tenant shall submit to
Landlord proposed Final Plans and Specifications (in both standard architectural
drawings and in electronic format (including the CAD drawings)) solely so that
Landlord may determine whether the proposed Final Plans and Specifications
conform to the Design Development Plans and otherwise comply with DUO.
Landlord's approval shall be governed by the applicable provisions of SECTION
6.2(a)(i) hereof (it being acknowledged and agreed that the design approval
process set forth in this SECTION 6.2 is an iterative process that may require
at least forty-five (45) days from submittal to Landlord of the proposed Final
Plans and Specifications until Landlord's approval may be obtained). If Landlord
determines that the proposed Final Plans and Specifications conform to the
Design Development Plans, Landlord shall so notify Tenant. If Landlord
determines that the proposed Final Plans and Specifications do not so conform,
Landlord shall so notify Tenant, specifying in reasonable
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detail in what respects the proposed Final Plans and Specifications do not so
conform, and Tenant shall revise them to so conform and shall resubmit the
proposed Final Plans and Specifications to Landlord for review for that purpose.
Landlord shall be deemed to have approved any portions of the proposed Final
Plans and Specifications as to which Landlord does not expressly notify Tenant,
as set forth in the immediately-preceding sentence, of such non-conformity. The
initial review by Landlord of the proposed Final Plans and Specifications shall
be carried out within twenty (20) Business Days of the date of submission
thereof by Tenant and any subsequent review by Landlord of any revisions thereto
shall be carried out within fifteen (15) Business Days of Tenant's submission of
such revision. In the case of resubmissions or revisions, Landlord may not
disapprove any matter previously submitted and approved or deemed approved,
except to the extent that such resubmission or revision affects any matter so
approved or deemed approved.
(d) MODIFICATION OF APPROVED SCHEMATIC DESIGN PLANS, DESIGN
DEVELOPMENT PLANS OR FINAL PLANS AND SPECIFICATIONS. If Tenant desires to modify
the Approved Schematic Design Plans, Design Development Plans or Final Plans and
Specifications after they have been approved or deemed approved by Landlord
pursuant to this ARTICLE VI, and either (1) Tenant has not provided to Landlord
an Architect's Certification, prepared by an Architect or an Engineer approved
(or deemed approved) by Landlord in accordance with SECTION 6.1(d)(ii) hereof,
describing the proposed modification and stating that such modification is not
to have been governed by any element of the DUO or does not affect a Structural
Component (other than by having a Nonadverse Structural Effect), or (2) such
modification represents an immaterial field change to such plans (notification
of each such immaterial field change being promptly provided to Landlord by
Tenant together with adequate identification of such change and an explanation
of the change made), Tenant shall submit the proposed modifications to Landlord,
clearly identifying each such modification, together with a statement of
Tenant's reasons therefor. If (A) Tenant has submitted such aforesaid
Architect's Certification and such Architect's Certification has not been
objected to by Landlord within five (5) Business Days after Landlord's receipt
thereof or (B) such modification represents an immaterial field change and
Tenant has provided the information required in clause (2) of this SECTION
6.2(d), then such submission of the proposed modifications for Landlord's review
and approval is not required. Unless and until a proposed modification is
clearly identified by Tenant, such modification shall not be considered by
Landlord and the prior set of approved plans shall govern in respect of such
modification. Landlord shall not disapprove any matter previously submitted and
approved, or deemed approved by Landlord, except to the extent that the proposed
modification affects any matter so approved or deemed approved. If Landlord
determines, in accordance with the applicable provisions of SECTION 6.2(a)(i)
hereof, that any proposed modifications are acceptable to Landlord, Landlord
shall so notify Tenant. If Landlord determines, in accordance with the
applicable provisions of SECTION 6.2(a)(i) hereof, that such modifications are
not otherwise acceptable, Landlord shall so notify Tenant, setting forth in
reasonable detail Landlord's reasons for such determination. In the event
Landlord determines the modification to be unacceptable, Tenant shall either (i)
withdraw the proposed modification, in which case construction of the New
Building shall proceed on the basis of the submissions previously approved or
deemed approved by Landlord, or (ii) revise the proposed modifications so that
they are acceptable to Landlord and resubmit them to Landlord for review in
accordance with the standards hereinabove set forth. Each review by Landlord
under this SECTION 6.2(d) shall be carried out within fifteen (15) Business Days
of the date of submission of the proposed modifications to the Approved
Schematic Design Plans, Design Development Plans or the Final Plans and Approved
Specifications, as the case may be, unless the proposed modification
substantially alters the Approved Schematic Design Plans, Design Development
Plans or the Final Plans and Specifications, in which event, so long as Landlord
notifies Tenant within such fifteen (15)
64
Business Day period that Landlord so regards the proposed modification,
Landlord's review shall be carried out within twenty (20) Business Days of the
date of submission of the proposed modification.
(e) COMPLIANCE WITH LEGAL REQUIREMENTS. The Final Plans and
Specifications (and any modification thereto) shall comply with all Legal
Requirements and Insurance Requirements (but need not comply with the Zoning
Resolution, it being understood that the Construction Work may be constructed
without reference to the provisions of the Zoning Resolution). Landlord's
approval of any such Final Plans and Specifications (or any modification
thereto) drawings shall not be, nor shall be construed as being, or relied upon
as, a determination that any such Final Plans and Specifications (or any
modification thereto) drawings comply with any Legal Requirements or Insurance
Requirements.
(f) SUBMISSION IN TRIPLICATE. All drawings submitted to Landlord
pursuant to this SECTION 6.2 shall be submitted in triplicate.
(g) PRODUCTION ARCHITECT. Notwithstanding any provision of this
Lease requiring the execution by the Design Architect of any certificate or
other document, Landlord agrees that such certificate or other document
(including, without limitation, any Architect's Certificate and any document
with respect to the determination of the occurrence of Substantial Completion)
may be executed, in lieu thereof, by the Production Architect on behalf of the
Design Architect once approved by the Design Architect.
SECTION 6.3 PERFORMANCE OF CONSTRUCTION WORK.
(a) STANDARDS FOR CONSTRUCTION WORK.
(i) All Construction Work shall be performed with due
diligence, continuity, in a good and workmanlike manner and in accordance with
good construction practice, subject however to Unavoidable Delays.
(ii) All Construction Work shall be performed and completed in
accordance with the DUO, the applicable Final Plans and Specifications as they
relate to the DUO, all Legal Requirements, Insurance Requirements and the
provisions of ARTICLES VI, VIII and XI hereof, as applicable.
(iii) From and after the Delivery Date, the Property shall be
free of liens (it being understood that Tenant shall have up to forty-five (45)
days to cause any liens imposed on the Property from and after the Delivery Date
to be fully discharged or bonded and to provide evidence thereof to Landlord).
(iv) All Construction Work, when completed, shall be of the
standard and quality commonly required at Class "A" office buildings (as
understood on the date hereof) in midtown Manhattan.
(v) Tenant shall maintain a complete set of "as built" plans
and specifications or marked construction documents and, if prepared by or for
Tenant or any Person doing such Construction Work, auto CAD Disks with respect
to any such Construction Work, and shall, when and as requested by Landlord,
deliver a copy thereof (together with all change orders, field changes, and
other changes that comprise a complete record of all such work) to Landlord.
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(vi) No temporary or permanent certificate of occupancy shall
be requested by or for Tenant with respect to the Project or any portion thereof
unless the Construction Work for which such certificate is being sought has been
substantially completed in accordance with the applicable provisions of the DUO.
(vii) Each agreement between Tenant and any contractor,
materialman or other party performing any Construction Work shall contain a
representation made by such contractor, materialman or other party that such
party is not a Prohibited Person and shall contain a termination right for the
benefit of Tenant if such representation shall at any time be untrue.
(b) CONDITIONS PRECEDENT TO COMMENCEMENT OF CONSTRUCTION WORK.
Tenant shall not commence any Tenant Construction Work and shall not permit any
Subtenant or any other Person to commence any Construction Work, (other than
Interior Construction Work and the Demolition Work) governed by any element of
the DUO or affecting a Structural Component (other than by having a Nonadverse
Structural Effect), unless and until:
(i) APPROVAL OF PLANS. Landlord shall have approved the Final
Plans and Specifications to the extent required in SECTION 6.2 hereof,
(ii) PERMITS. Tenant, at its sole cost and expense, shall have
obtained (and thereafter shall maintain) all necessary permits and
authorizations required by Legal Requirements for the commencement and
prosecution of such work and for approval thereof upon completion, and Tenant
shall deliver to Landlord copies of any and all of such permits and/or
authorizations required to commence such work prior to the commencement thereof;
(iii) DOCUMENTS. Tenant shall have delivered to Landlord the
following items: (A) copies of all Final Plans and Specifications which have
been stamped as approved by the New York City Buildings Department (it being
agreed that the Final Plans and Specifications submitted to the New York City
Buildings Department for approval may be only those Final Plans and
Specifications approved by Landlord pursuant to SECTION 6.2(c) hereof); (B)
executed counterparts (or copies thereof) of the Collateral Assignments in
respect of all construction agreements between Tenant and any general
contractor, construction manager, the Design Architect and the other Architects;
(C) construction schedules and staging plans; and (D) certificates for the
insurance required by SECTION 10.1 hereof, together with evidence reasonably
satisfactory to Landlord of the payment of the premiums therefor;
(iv) CONSTRUCTION GUARANTIES. With respect only to Tenant's
Construction Work, including, without limitation, SECTION 6.6 and Core and Shell
"punch list" items (the "CORE AND SHELL PUNCHLIST") prepared by Tenant and
delivered to the Major Contractors upon Substantial Completion, a copy of which
Core and Shell Punchlist shall be delivered to Landlord, upon Substantial
Completion (and not with respect to any other Construction Work) Tenant has
caused NYTC and FCE to execute and deliver to Landlord the NYTC Construction
Guaranty and the FCE Construction Guaranty, respectively; PROVIDED, HOWEVER,
that if, prior to or after the commencement of Tenant's Construction Work: (w)
NYTC Member is the sole member of Tenant, then Tenant shall only be required to
cause the NYTC Construction Guaranty to be executed and delivered to Landlord
pursuant to this SECTION 6.3(b)(iv); (x) FC Member is the sole member of Tenant,
then Tenant shall only be required to cause the FCE Construction Guaranty to be
executed and delivered to Landlord pursuant to this SECTION 6.3(b)(iv); (y) ING
is the sole member of Tenant, then Tenant shall only be required to cause the
ING Construction Guaranty to be executed and delivered to Landlord pursuant
66
to this SECTION 6.3(b)(iv); and (z) ING is the sole member of FC Member, then
Tenant shall, in addition to the NYTC Construction Guaranty, be required to
cause the ING Construction Guaranty to be executed and delivered to Landlord
pursuant to this SECTION 6.3(b)(iv) in lieu of the FCE Construction Guaranty;
and provided further that Landlord agrees that if, after any Construction
Guaranty is provided to Landlord in accordance with this SECTION 6.3(b)(iv),
Tenant delivers to Landlord a NYTC Construction Guaranty, an FCE Construction
Guaranty or an ING Construction Guaranty pursuant to clauses (w), (x), (y), or
(z), as applicable, then Landlord shall acknowledge in writing to NYTC, FCE or
ING Vastgoed B B.V., as applicable, promptly after the aforesaid delivery, that
any Construction Guaranty previously delivered to Landlord, and that is to be
superseded by the newly delivered Construction Guaranty, is of no further force
or effect); and
(v) There shall be no Default (other than a Minor Default) or
Event of Default hereunder.
(c) OBLIGATIONS FOLLOWING COMPLETION OF CONSTRUCTION WORK. Promptly
following completion of any Construction Work (or, in respect of Tenant's
Construction Work, Substantial Completion of Tenant's Construction Work), Tenant
shall furnish to Landlord:
(i) In respect of any Construction Work governed by any
element of the DUO, an Architect's Certification (which Architect's
Certification has not been objected to within ten (10) Business Days of
Landlord's receipt thereof), prepared by an Architect approved (or deemed
approved) by Landlord in accordance with SECTION 6.1(d)(ii) hereof, that (A) the
Architect has examined the applicable Final Plans and Specifications, (B) to its
best knowledge, after appropriate investigation, the Construction Work, as then
constructed, has been completed substantially and in all material respects in
accordance with the applicable Final Plans and Specifications as it relates to
and complies with the DUO, and (C) with respect to Tenant's Construction Work
only, indicates in respect to each of (1) the Project overall, and (2) each
element of the Project Components, the total number of Square Feet and Rentable
Square Feet, and indicating which portion of the difference between Square Feet
and Rentable Square Feet is on account of Discretionary Inside Mechanical Space
and which portion is on account of below grade, Revenue Producing Retail Space;
(ii) A copy or copies of the temporary or permanent
certificate(s) of occupancy for such Construction Work, if applicable;
(iii) (A) In respect of the entire Project other than any
Subtenant's initial tenant improvements to its Demised Space, a complete set of
"as built" plans in duplicate (one of such plans being delivered in electronic
format (including CAD drawings)) showing such construction, as then constructed,
if available, and if not available, "marked" final drawings, and (B) in respect
of any Subtenant's (including, without limitation, NYTC in its capacity as a
Subtenant) initial tenant improvements to its Demised Space, a complete set of
"as built" plans in duplicate (one of such plans being delivered in electronic
format (including CAD drawings)), if available, and if not available, "marked"
final drawings, if available;
(iv) Upon request by Landlord, copies of any documents filed
with the New York City Department of Buildings;
(v) Any permits or authorizations which are required for such
Construction Work as completed;
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(vi) Copies of all guaranties or certifications called for
under any construction agreements, promptly after receipt thereof by Tenant or
Tenant's Related Entities;
(vii) Copies of all New York Board of Fire Underwriters
Certificates (or the equivalent certificate of any successor organization) for
such Construction Work;
(viii) Copies of duly executed waivers of mechanic's lien from
each provider of materials, supplies, equipment or labor to the Project relating
to such Construction Work or other evidence of payment reasonably satisfactory
to Landlord, promptly after receipt thereof by Tenant;
(ix) In respect of Tenant's Construction Work, an easement
plan for the applicable portion of the Project showing the location of all
easements affecting the Project (or an "as built" survey providing the same
information), if required by the New York City Department of Buildings for the
issuance of a building permit or certificate of occupancy in respect thereto,
and
(x) Any plans and specifications and other applicable
documents in Tenant's possession reasonably requested by Landlord to demonstrate
compliance with the DUO.
(d) NO RESPONSIBILITY OF LANDLORD. Landlord shall have no
responsibility to Tenant or to any Subtenant, architect, engineer, contractor,
subcontractor, supplier, materialman, xxxxxxx or other person, firm or
corporation who shall engage in or participate in any construction of any
Construction Work. Notice is hereby given that Landlord shall not be liable for
any labor or materials furnished or to be furnished to Tenant upon credit, and
that no mechanic's or other lien for any such labor or materials shall attach to
or affect the estate or interest of Landlord in and to the Property. Whenever
and as often as any such lien shall have been filed against the Property,
whether or not based upon any action or interest of Tenant or any Subtenant, or
if any conditional xxxx of sale shall have been filed for or affecting any
materials, machinery or fixtures used in the construction, repair or operation
thereof, or annexed thereto by Tenant, Tenant shall promptly take such action by
bonding, deposit or payment as will remove or satisfy the lien or conditional
xxxx of sale.
(e) RIGHT OF INSPECTION. Landlord shall have the right, during the
performance of any Construction Work governed by any element of the DUO or
affecting a Structural Component (other than by having a Nonadverse Structural
Effect), to (i) maintain, at Landlord's cost, field personnel or other
representatives at the Project to observe Tenant's construction methods and
techniques and to determine that such Construction Work is being performed in
accordance with the provisions of this Lease, and (ii) have such field personnel
or other designers attend Tenant's job and/or safety meetings (it being agreed
that such Landlord's field personnel or other representatives shall not instruct
contractors, interfere with or impede the work of such or other workers in
respect of any such Construction Work). Landlord agrees that the presence and
activities of such field personnel or other representatives shall not impede in
any respect the performance of such Construction Work. No such observation or
attendance by Landlord's personnel, designers or other representatives shall
impose upon Landlord responsibility for any failure by Tenant to comply with any
Legal Requirements, Insurance Requirements or safety practices in connection
with such Construction Work or constitute an acceptance of any such Construction
Work which does not comply in all respects with the provisions of this Lease.
SECTION 6.4 USE OF PLANS AND SPECIFICATIONS. Landlord shall have the
right to use without any payment or other compensation by Landlord therefor,
solely for the purposes set forth in
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the following sentence, (a) the Approved Schematic Design Plans, the Design
Development Plans and the Final Plans and Specifications, (b) any surveys and
"as built" plans showing the applicable Construction Work, and (c) any other
plans and specifications with respect to such Construction Work. Landlord shall
have the right to use the items enumerated in clauses (a) through (c) above to
facilitate the exercise of its rights under this Lease and, subsequent to the
expiration or termination of this Lease where Landlord retains title to the
Property, for the construction, use, operation and Alteration of the applicable
Project Component and other purposes incidental thereto; SUBJECT, HOWEVER, to
the following restrictions:
(i) the work product of the Design Architect (the "DA WORK
PRODUCT") may be used only for the completion of the Construction Work in
question or for reference purposes for additions, extensions, remodeling or
modification of the Construction Work in question not designed by the Design
Architect; however, ownership rights to said DA Work Product and rights
therefrom may not be transferred to another party for its use in the design of
another project;
(ii) Design Architect retains all statutory and reserve
rights, including copyright, to typical or standard design details, depictions,
instructions and specifications regularly used by the Design Architect in the
ordinary course of its architectural practice;
(iii) Design Architect retains the right to publish images and
appropriate technical information from Design Architect's work in professional
journals and for portfolio publicity purposes;
(iv) Design Architect is not responsible for errors or
discrepancies on any electronic portable media on which Design Architect's
design documents are transferred except to the extent that such errors or
inconsistencies are caused by or contributed to by Design Architect when it
transfers such information to such media or while such media are in Design
Architect's possession or control;
(v) in connection with any publication of photographs or other
representations of the Construction Work in question where the design of the
Construction Work in question is the subject of the publication, if applicable,
the party causing such publication will endeavor to see that reference to the
Design Architect as architect for the Construction Work in question is included
in any such publication as follows: Xxxxx Xxxxx Building Workshop, Design
Architects, with Fox and Xxxxx Architects, Executive Architect; and
(vi) if the Project is materially modified after its
completion and Design Architect has not consented or participated in such
modification, no reference shall be made to Xxxxx Xxxxx Building Workshop or Fox
and Xxxxx Architects, as the architect(s) for the Construction Work in question,
and the owner of the Construction Work in question shall use its diligent
efforts to prevent the dissemination of information regarding such completion or
modification which includes any such reference.
Nothing in this SECTION 6.4 shall permit the selection by Tenant and approval of
a Design Architect other than in accordance with SECTION 6.1(d) hereof. The
provisions of this SECTION 6.4 shall survive any such expiration or earlier
termination of this Lease.
SECTION 6.5 CONDITIONS PRECEDENT TO COMMENCEMENT OF DEMOLITION,
ASBESTOS REMOVAL AND LEAD ABATEMENT. (a) Tenant shall not commence any
demolition of the Existing
69
Improvements or commence asbestos removal or lead paint abatement of the
Existing Improvements (any such work, the "DEMOLITION WORK") unless and until:
(i) Tenant shall have obtained and delivered to Landlord true and complete
copies of all necessary permits, consents, certificates and approval of all
necessary Governmental Authorities in respect of such work; and (ii) Tenant
shall have delivered to Landlord satisfactory certificates evidencing the
insurance required by ARTICLE X hereof. Subject to SECTIONS 6.5(b) and 6.5(c)
hereof, Tenant covenants and agrees that once Tenant has initiated the
Demolition Work, it shall thereafter commence Tenant's Construction Work and
continuously, diligently and without material interruption pursue Tenant's
Construction Work until completion.
(b) After the occurrence of the Delivery Date, Tenant may, at
Tenant's sole election, demolish specified Existing Improvements in accordance
with this SECTION 6.5(b) and not be subject to the covenant contained in the
last sentence of SECTION 6.5(a) hereof if:
(i) Based on the internal investigation and assessment of the
New York City Building Department (and not on information provided by Tenant or
any third party related to or otherwise associated with Tenant), the New York
City Building Department deems a condition in an Existing Improvement to be
unsafe and requires immediate demolition of such Exiting Improvement; or
(ii) (A) Tenant provides to Landlord a statement containing
(1) Tenant's representation that an Existing Improvement has a condition that is
an imminent threat to public safety and (2) reasonably detailed information
(together with any supporting information reasonably satisfactory to Landlord)
demonstrating that Tenant has maintained the Existing Improvement in a
responsible manner and has in no way exacerbated or otherwise increased the
unsafe condition. Within two (2) Business Days of Landlord's receipt of such
statement, Landlord shall confirm the availability of the Demolition Engineer
and shall forward such statement (together with any supporting information
provided by Tenant therewith and a copy of this provision) to the Demolition
Engineer, requesting the Demolition Engineer to make its assessment within three
(3) Business Days of receipt of such materials from Landlord;
(B) The Demolition Engineer, in a statement to both
Tenant and Landlord (1) finds that the indicated Existing Improvement has a
condition that is an imminent threat to public safety, (2) confirms that the
maintenance of the Existing Improvement by Tenant in no way exacerbated or
otherwise increased the unsafe condition, and (3) provides a scope of work and
an estimate of the most cost-efficient manner for Tenant to remedy the unsafe
condition other than demolition of the applicable Existing Improvements; and
(C) The estimated cost of remedying the unsafe condition
(as estimated by the Demolition Engineer in accordance with clause (B) above)
would exceed (1) 100% of the Assessed Value of the Existing Improvements if the
proposed demolition would occur between twenty-four (24) months and one day less
than eighteen (18) months prior to the Fixed Construction Commencement Date, (2)
75% of the Assessed Value of the Existing Improvements if the proposed
demolition would occur between eighteen (18) months and one day less than twelve
(12) months prior to the Fixed Construction Commencement Date, (3) 50% of the
Assessed Value of the Existing Improvements if the proposed demolition would
occur between twelve (12) months and one day less than six (6) months prior to
the Fixed Construction Commencement Date and (4) 25% of the Assessed Value of
the Existing Improvements if the proposed demolition would occur between six (6)
months prior to and the Fixed Construction Commencement Date; PROVIDED, HOWEVER,
that Tenant
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may elect to deliver to Landlord a certification accelerating the Fixed
Construction Commencement Date, in which event such accelerated Fixed
Construction Commencement Date shall constitute the Fixed Construction
Commencement Date for all purposes under this Lease.
(iii) The term "DEMOLITION ENGINEER" shall mean one of (A)
Xxxxxx Xxxxxxx of Xxxxxx Xxxxxxx Associates PC, (B) Xxxxx Xxxxx of Wiss Xxxxxx
Xxxxxxx, (C) Xxxx Xxxxxx of Xxxxxx Xxxxx PC or (D) another engineer determined,
in any event, as set forth in this SECTION 6.5(b)(iii). In the event that the
first named Demolition Engineer is not available or is unwilling to serve, the
Demolition Engineer next set forth on the list shall be engaged, and so on.
until arriving at an available Demolition Engineer. If none of such listed
Persons is available or willing to serve, the Demolition Engineer shall be
selected by the AAA and shall be an impartial engineer, with at least ten (10)
years current experience in the assessment of safety conditions in commercial
structures in New York City. Tenant shall pay all fees and expenses of the
Demolition Engineer (and, if necessary, AAA's involvement with the selection
thereof).
(c) Notwithstanding that the Delivery Date has not occurred, Tenant
may, at Tenant's sole election, demolish Existing Improvements in accordance
with this SECTION 6.5(c) and not be subject to the covenant contained in the
last sentence of SECTION 6.5(a) hereof, in the event that: (i) Landlord has
obtained vacant possession of less than all of the Existing Improvements (any
such improvements, the "VACANT EXISTING IMPROVEMENTS"); (ii) Tenant provides to
Landlord a guaranty of any Guarantor, substantially in the form of the
Construction Guaranties (modified so as to (x) guaranty (1) completion of all of
such Demolition Work that is commenced by Tenant pursuant to this SECTION 6.5(c)
and (2) Tenant's obligations pursuant to the access agreement described in
clause (iii) of this SECTION 6.5(c) and (y) delete Section 16 thereof (i.e., the
financing contingency)); (iii) Tenant enters into an access agreement with
Landlord in a form mutually agreed upon by Landlord and Tenant; and (iv) Tenant
complies with the requirements of SECTION 6.5(a) hereof. Provided that Tenant
has satisfied the conditions set forth in clauses (i) through (iv) of this
SECTION 6.5(c), then Tenant shall be permitted to undertake the following
activities on the specified Vacant Existing Improvements:
(A) Demolish the Vacant Existing Improvements on any one
or more of Lots 15, 8, 14 and 53; and/or
(B) Undertake pre-demolition activities (e.g., asbestos
removal, lead paint abatement) in respect of the other Vacant Existing
Improvements.
Nothing in this SECTION 6.5(c) shall permit Tenant to undertake any excavation
on the Property. In the event that litigation is commenced against Landlord in
respect of the Property and Landlord reasonably demonstrates that such
litigation is directly related to Tenant's initiating of demolition of Existing
Improvements prior to the removal of all occupants from the Property, then each
Non-Delivery Event shall be extended by a period of time equal to the duration
of such litigation. Tenant shall indemnify, defend and hold harmless each Public
Party and its respective officers, directors, members, managers, shareholders,
agents and affiliates, and the successor and assigns of each of the foregoing,
from and against all claims, actions, causes of action, losses, damages and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) suffered or incurred by the Public Parties arising out of or related
to (1) the aforesaid litigation and (2) any additional costs incurred hereunder
due to Demolition Work performed pursuant to this SECTION 6.5(c). Upon the
request of Landlord, in Landlord's sole discretion, Tenant shall promptly cease
all Demolition Work implicated in such litigation. Landlord acknowledges that
Tenant's access to less than all of the
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Existing Improvements pursuant to this SECTION 6.5(c) shall not be deemed
delivery of Possession of the Property or any portion thereof.
SECTION 6.6 CONSTRUCTION OF TENANT'S SUBWAY IMPROVEMENTS (a) Tenant
shall perform or cause to be performed any required Construction Work in respect
of the 00xx Xxxxxx subway entrance (including, without limitation, the
relocation thereof) in accordance with the requirements of the Zoning Resolution
as set forth on June 20, 2000 as if such requirements were applicable to the
Property ("TENANT'S SUBWAY IMPROVEMENTS"). The construction of Tenant's Subway
Improvements shall be governed by the Site 8 South Subway Agreement and all
applicable Legal Requirements; PROVIDED, HOWEVER, that Landlord shall have the
continuing right to review any modification to the Site 8 South Subway Agreement
and to approve same solely to the extent that any such modification impacts the
DUO. In the event of any conflict between the terms of this Lease and the terms
of the Site 8 South Subway Agreement in respect of the performance of Tenant's
Subway Improvements, the terms of the Site 8 South Subway Agreement shall
prevail. Landlord acknowledges that substantial completion of Tenant's Subway
Improvements is not a condition precedent to Substantial Completion of Tenant's
Construction Work.
(b) Tenant shall be responsible for all costs in respect of Tenant's
Subway Improvements. Subject to Section 3.04(b) of the Site 8 South LADA, the
actual costs of Tenant's Subway Improvements in excess of Four Million Dollars
($4,000,000) shall be reimbursed to Tenant as a credit against PILOT under this
Lease, but only to the extent that any such excess expenditure was reasonably
required, in Landlord's reasonable opinion based on a detailed accounting of
such costs provided by Tenant to Landlord, in order to construct the minimum
improvements that would be required under the Zoning Resolution as of June 20,
2000.
(c) In the event that the completion of Tenant's Subway Improvements
is determined by the New York City Department of Buildings to be a condition to
obtaining a temporary or permanent certificate of occupancy for the Core and
Shell (and, therefore, is a condition to the achievement of Substantial
Completion), and Tenant is delayed in obtaining any such certificate of
occupancy solely due to a delay actually caused by the New York City Transit
Authority (after taking into account all reasonable measures that were taken or
should reasonably have been taken by Tenant to mitigate the effects thereof),
the Fixed Substantial Completion Date shall be extended for a period reasonably
determined by Landlord, but in no event shall such extension be for a period
greater than the period reasonably caused by such delay.
(d) Prior to the execution of the Site 8 South Subway Agreement, the
Public Parties shall, at Tenant's reasonable cost, cooperate with Tenant in any
reasonable way, to facilitate (but without the requirement to expend or to
commit to expend funds) the participation of the New York City Transit Authority
with the Project.
SECTION 6.7 FINAL COMPLETION; PERMANENT CERTIFICATE OF OCCUPANCY.
Tenant shall, using commercially reasonable efforts, diligently and continuously
pursue the development of the New Building until the New Building shall be
complete and fully operational. Within a reasonable period after the completion
of the initial build out in respect of Demised Space constituting one hundred
percent (100%) of the Square Feet to be occupied in the New Building, Tenant
shall with reasonable diligence obtain (or cause to be obtained) a permanent
certificate of occupancy for the New Building.
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SECTION 6.8 CONSTRUCTION AGREEMENTS. All construction agreements
valued at One Hundred Thousand Dollars ($100,000) or more shall include the
following provisions:
(a) ["Contractor" / "Subcontractor" / "Materialman"] hereby agrees
that immediately upon the purchase by ["contractor" / "subcontractor" /
"materialman"] of any building materials to be incorporated in the Property (as
defined in the Agreement of Lease, dated ____ __, 2001, between Owner and 42nd
St. Development Project, Inc. (the "Lease")), such materials shall become the
sole property of the Landlord (as defined in the Lease), notwithstanding that
such materials have not been incorporated in, or made a part of, such Property
at the time of such purchase; PROVIDED, HOWEVER, that the Landlord (as defined
in the Lease) shall not be liable in any manner for payment to ["contractor" /
"subcontractor" / "materialman"] in connection with the purchase of any such
materials, and Landlord shall have no obligation to pay any compensation to
["contractor" / "subcontractor" / "materialman"] by reason of such materials
becoming the sole property of the Landlord.
(b) ["Contractor" / "Subcontractor" / "Materialman"] hereby agrees
that notwithstanding that ["contractor" / "subcontractor" / "materialman"]
performed work at the Property (as defined in the Lease) or any part thereof,
Landlord shall not be liable in any manner for payment to ["contractor" /
"subcontractor" / "materialman"] in connection with the work performed at the
Property.
(c) ["Contractor" / "Subcontractor" / "Materialman"] hereby agrees
to make available for inspection by the Landlord, during reasonable business
hours, ["contractor's" / "subcontractor's" / "materialman's"] books and records
relating to the Alterations / Construction Work / Condemnation Restoration /
Restoration (as defined in the Lease) being performed or the acquisition of any
material or equipment to be incorporated into the Property.
(d) The Landlord is not party to this ["contract" / "agreement"] and
will in no way be responsible to any party for any claims of any nature
whatsoever arising or which may arise from such ["contract" / "agreement"].
(e) All covenants, representations, guaranties and warranties of
["contractor" / "subcontractor" / "materialman"] set forth in the preceding four
paragraphs shall be deemed to be made for the benefit of the Landlord and shall
be enforceable by the Landlord.
SECTION 6.9 CONSTRUCTION SIGN. Within thirty (30) days after request
of Landlord, Tenant shall install, during the period in which Tenant is
undertaking Tenant's Construction Work, a project sign at the Project that
satisfies the requirements of the DUO, if any, and such sign shall be maintained
at the Project by Tenant thereafter at all times until Substantial Completion is
achieved.
SECTION 6.10 PROJECT AREA. Tenant shall require its general
contractor, construction manager, major trade contractors and all other workers
at the Property connected with any Construction Work to work harmoniously with
each other, and with other contractors and workers on the Project, and Tenant
shall not engage in, permit or suffer, any conduct which may disrupt such
harmonious relationship. Tenant shall take commercially reasonable efforts to
(a) enforce the aforesaid requirements and (b) cause its general contractor,
construction manager and major trade contractors to minimize any interference
with the use, occupancy and enjoyment of the Project area by other occupants and
visitors thereof.
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SECTION 6.11 TITLE TO MATERIALS. All materials and other Equipment
incorporated in the Improvements, excluding any Tenant or Subtenant personal
property, shall, effective upon their incorporation into the Project and at all
times thereafter, constitute the property of Landlord and shall constitute a
portion of the Property.
SECTION 6.12 NONADVERSE STRUCTURAL EFFECT. TENANT may provide to
Landlord a statement of an Architect or an Engineer approved by Landlord
pursuant to this Lease, in the form of EXHIBIT 0 attached hereto, certifying
that the contemplated Construction Work shall have no adverse effect on a
Structural Component that is greater than a Nonadverse Structural Effect. Such
statement shall be based solely on such Engineer's or Architect's sole
assessment of the Construction Work in question and not on any representations
or other statements made by Tenant or any other party. Landlord shall approve or
disapprove of such Engineer's or Architect's statement, in Landlord's reasonable
discretion, within ten (10) Business Days of Landlord's receipt thereof
SECTION 6.13 ARBITRATION. Disputes regarding any aspect of this
ARTICLE VI. except for those expressly stated otherwise or those that pertain to
the DUO, may be referred to arbitration pursuant to SECTION 16.3 hereof.
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ARTICLE VII
USE AND MAINTENANCE OF THE PROPERTY
SECTION 7.1 PERMITTED USE.
(a) USE. The Project and each Project Component or portion thereof
shall be used, maintained, occupied and operated (i) in accordance with the
requirements of the DUO, (ii) at a standard of at least that of a Class "A"
office building (as understood on the date hereof) in midtown Manhattan, and
(iii) subject to the DUO and except as set forth in SECTIONS 7.1(c) and 7.2
hereof, for any use permitted by Legal Requirements, including, without
limitation, newsrooms, retail, service, auditoriums, dining facilities,
communications facilities, production facilities, ancillary medical facilities,
parking for not more than ten (10) cars, back office, storage and other uses as
are incidental or ancillary thereto, in accordance with the certificate(s) of
occupancy therefor, and for no use or purpose inconsistent with the DUO or the
operation of a Class "A" office building (as understood on the date hereof) in
midtown Manhattan (the uses described in clauses (i), (ii) and (iii) above, the
"PERMITTED USE"), and for no other use. Tenant agrees not to use, permit or
suffer the Project to be used for any purposes not expressly permitted under
this SECTION 7.1(a) without the prior written consent of Landlord.
(b) DISPLAY AND SIGNAGE. All signage to be incorporated into the
design of the Project, and all lighting to be installed in connection therewith,
shall comply with the specific requirements of the DUO. Tenant shall install and
operate, or cause to be installed and operated, lights and signs as required by
the DUO by the date(s) prescribed in the DUO applicable to each category of
lighting and signage set forth in the DUO.
(c) COMMON ELEMENTS. Subject to the immediately following sentence,
the Common Elements (as defined in the Severance Subleases) shall not be used
for any commercial purposes. The Common Element Leaseable Space may be used for
commercial purposes but only in accordance with, and as contemplated by, SECTION
34.1 hereof.
(d) COMPLIANCE WITH THE DUO. From and after the Substantial
Completion Date, Tenant shall maintain and operate the Project in compliance
with the DUO.
SECTION 7.2 RESTRICTIONS ON USE. Tenant shall not use, occupy,
maintain or operate the Project, nor permit the same to be used, occupied,
maintained or operated, nor do or permit anything to be done in, on or to the
Project, in whole or in part, in a manner which would in any way:
(a) violate any construction permit or certificate of occupancy
affecting the Property;
(b) constitute a public nuisance;
(c) violate any Legal Requirements or Insurance Requirements; or
(d) violate any requirements of the DUO.
SECTION 7.3 INTERIM AND LONG-TERM MAINTENANCE OBLIGATIONS.
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(a) INTERIM MAINTENANCE OBLIGATIONS. (i) Taking into account the
anticipated performance of Tenant's Construction Work and that Tenant has no
obligations hereunder to improve the condition of the Existing Improvements
(except in the event any such Existing Improvements are required by a
Governmental Authority to be modified), at all times from the Delivery Date to
the date Tenant commences the Demolition Work, Tenant shall:
(A) not cause any waste, damage, disfigurement or injury
to or upon the Property or any part thereof, except damage, disfigurement or
injury that is incidental to pre-construction activities permitted hereunder
(and subject to repair of any such damage, disfigurement or injury required
hereunder);
(B) maintain and keep the sidewalks adjacent to the
Property in reasonable and safe order, repair and condition;
(C) not obstruct the sidewalks in any manner and
maintain and keep the Property, and sidewalks and curbs adjacent thereto, free
and clear of rubbish, dirt, ice and snow and shall not impede the free use of or
obstruct the same or allow the same to be obstructed in any manner;
(D) keep each building on the Property locked and
secure;
(E) ensure that the exterior of the Property is well lit
from dusk until xxxx every day;
(F) ensure that alcoves, entrances, or other breaks in
the streetwall are well lit;
(G) not cinder-block, cover, remove, block or seal in
any manner any window on any facade of the Existing Improvements that is visible
from the street; and
(H) keep the Property free of graffiti and posters.
(ii) If Tenant fails to maintain the cleanliness of the
sidewalks adjacent to the Property at least to the level of cleanliness
maintained for the overall area of the Times Square BID, as determined by the
Mayor's Office of Operations Sanitation Scorecard for as long as the same
exists, or fails to promptly remove from the Improvements evidence of graffiti
and such failure continues for five (5) Business Days after notice to Tenant
specifying in reasonable detail such failure and setting forth Landlord's right
to remove same on Tenant's behalf, Landlord shall, at the end of such five (5)
Business Day period, be entitled to clean such sidewalks or remove such graffiti
or cause the same to be cleaned or removed, as the case may be, at the expense
of Tenant. Any and all costs incurred by Landlord in connection therewith shall
be paid to Landlord's contractors or reimbursed to Landlord, as Landlord shall
request, and shall accrue interest at the Interest Rate, in accordance with
SECTION 15.1 hereof.
(b) MAINTENANCE DURING DEMOLITION WORK AND TENANT'S CONSTRUCTION
WORK. (i) Taking into account the anticipated performance of Tenant's
Construction Work and that Tenant has no obligations hereunder to improve the
condition of the Existing Improvements (except in the event any such improvement
is required to be made by the express directive of a Governmental Authority
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acting in its governmental capacity), at all times from the date Tenant
commences the Demolition Work through the Substantial Completion Date, Tenant
shall:
(A) maintain and keep the sidewalks adjacent to the
Property in reasonable and safe order, repair and condition;
(B) except to the extent permitted under applicable
Legal Requirements and all permits and authorizations required thereunder, not
obstruct the sidewalks in any manner and maintain and keep the Property, and
sidewalks and curbs adjacent thereto, free and clear of rubbish, dirt, ice and
snow and shall not impede the free use of or obstruct the same or allow the same
to be obstructed in any manner;
(C) to the extent any Existing Improvement has not been
demolished, keep such Existing Improvement locked and secure;
(D) to the extent any Existing Improvement has not been
demolished, ensure that the exterior of such Existing Improvement is well lit
from dusk until xxxx every day;
(E) keep the Property free of graffiti and posters; and
(F) comply with the DUO.
(ii) If Tenant fails to maintain the cleanliness of the
sidewalks adjacent to the Property at least to the level of cleanliness
maintained for the overall area of the Times Square BID, as determined by the
Mayor's Office of Operations Sanitation Scorecard for as long as the same
exists, or fails to promptly remove from the Improvements evidence of graffiti
and such failure continues for five (5) Business Days after notice to Tenant
specifying in reasonable detail such failure and setting forth Landlord's right
to remove same on Tenant's behalf, Landlord shall, at the end of such five (5)
Business Day period, be entitled to clean such sidewalks or remove such graffiti
or cause the same to be cleaned or removed, as the case may be, at the expense
of Tenant. Any and all costs incurred by Landlord in connection therewith shall
be paid to Landlord's contractors or reimbursed to Landlord, as Landlord shall
request, and shall accrue interest at the Interest Rate, in accordance with
SECTION 15.1 hereof.
(c) LONG-TERM MAINTENANCE OBLIGATIONS. (i) At all times during the
term of this Lease from and after the Substantial Completion Date, Tenant shall
(and/or shall cause each Subtenant (by incorporating the following provisions in
every Sublease and using all reasonable efforts to enforce the same) to):
(A) not cause any waste to or upon the Property or any
part thereof, nor permit or suffer any waste to or upon the Property;
(B) not cause physical damage (other than as part of any
Construction Work permitted hereunder or as caused by a Casualty or Taking) to
the Property or any part thereof, including the Core and Shell and Tenant's
Subway Improvements (except in accordance with the Site 8 South Subway
Agreement);
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(C) take good care of the Property, make all repairs,
restorations and replacements thereto, interior and exterior, structural and
non-structural, ordinary and extraordinary, foreseen and unforeseen, necessary
to (1) comply with all Legal Requirements, Insurance Requirements and the DUO
and (2) maintain and operate the Property to a standard at least of that of a
Class "A" office building (as understood on the date hereof) in midtown
Manhattan;
(D) maintain, repair, keep, use and occupy the Property
in compliance with the DUO;
(F) maintain and keep the Property, and sidewalks and
curbs adjacent thereto, free and clear from rubbish, dirt, ice and snow and
shall not impede the use of or obstruct the same or allow the same to be so
impeded or obstructed in any manner;
(F) maintain and keep the sidewalks and vaults adjacent
to the Property in good order, repair and condition (including the prompt repair
of cracks therein and the maintenance of an even level thereof) and at all times
keep the same in compliance with the DUO and Legal Requirements;
(G) operate the Retail Space for the conduct of business
during the hours of operation set forth in the DUO;
(H) operate and maintain the Public Amenity as set forth
in the DUO and in SECTION 30.4 hereof;
(I) prohibit sales through window openings on the
streetwall, except in the case of (1) a Subtenant whose business is primarily
the operation of a newsstand or ticket sales or (2) the sale of tickets for
movies and other attractions, i.e., display windows shall be used for display
only and not as a point of sale; and
(J) keep the Property free of graffiti and posters.
(ii) If Tenant fails to maintain the cleanliness of the
sidewalks adjacent to the Property at least to the level of cleanliness
maintained for the overall area of the Times Square BID, as determined by the
Mayor's Office of Operations Sanitation Scorecard for as long as the same
exists, or fails to promptly remove from the Improvements evidence of graffiti
and such failure continues for five (5) Business Days after notice to Tenant
specifying in reasonable detail such failure and setting forth Landlord's right
to remove same on Tenant's behalf, Landlord shall, at the end of such five (5)
Business Day period, be entitled to clean such sidewalks or remove such graffiti
or cause the same to be cleaned or removed, as the case may be, at the expense
of Tenant. Any and all costs incurred by Landlord in connection therewith shall
be paid to Landlord's contractors or reimbursed to Landlord, as Landlord shall
request, and shall accrue interest at the Interest Rate, in accordance with
SECTION 15.1 hereof.
SECTION 7.4 COMPLIANCE WITH LEGAL REQUIREMENTS. Tenant shall
promptly comply with all Legal Requirements and Insurance Requirements, foreseen
or unforeseen, ordinary as well as extraordinary, structural or non-structural.
Tenant shall have the right to contest the validity of any Legal Requirement or
the application thereof in accordance with this SECTION 7.4. During such
contest, compliance with any such contested Legal Requirement may be deferred by
Tenant upon condition that before instituting any such proceedings, Tenant shall
furnish to Landlord
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security reasonably satisfactory to Landlord (it being agreed that an acceptable
guaranty of an Acceptable Guarantor shall be security reasonably satisfactory to
Landlord under this SECTION 7.4), securing compliance with the contested Legal
Requirement and payment of all interest, penalties, fines, fees and expenses in
connection therewith. Any such proceeding instituted by Tenant shall be
commenced as soon as is reasonably possible after the issuance of any
notification by the applicable governmental authority with respect to required
compliance with such Legal Requirement and shall be prosecuted to final
adjudication with reasonable diligence. Tenant hereby agrees to indemnify
Landlord from and against any and all Claims arising out of such proceeding.
Notwithstanding the foregoing, Tenant promptly shall comply with any such Legal
Requirement and compliance shall not be deferred if at any time there is a
condition imminently hazardous to human life or health, the Property, or any
part thereof, shall be in danger of being forfeited or lost, or if Landlord
shall be in danger of being subject to criminal and/or civil liability or
penalty (other than a fine which Tenant agrees to pay or in regard to which
Tenant provides to Landlord an indemnity of Landlord by an Acceptable Guarantor)
by reason of noncompliance therewith. The Obligations of Tenant to indemnify
Landlord under this SECTION 7.4 shall survive the expiration or earlier
termination of this Lease.
SECTION 7.5 NO WASTE. Except in connection with the Demolition Work,
Tenant will not do, permit or suffer any waste to or upon the Property or any
part thereof. Tenant shall have the right at any time and from time to time to
sell or dispose of any Equipment, subject to this Lease, which may have become
obsolete or unfit for use or which is no longer useful, necessary or economical
in the operation of the Property; PROVIDED, HOWEVER, that Tenant shall have
substituted or shall promptly substitute for the property so removed from the
Property other Equipment not necessarily of the same character but at least of
equal quality in the performance of the particular function in question as that
of the property so removed unless, in Tenant's reasonable opinion as set forth
in a written notice to Landlord, the property so removed was performing an
obsolete function or a function no longer required in connection with the then
current use of the Property and replacement thereof is not necessary or
appropriate to maintain, without impairment, the operation or character of the
Property, its use and occupancy by Subtenants or its overall value.
SECTION 7.6 RIGHT OF ENTRY. Landlord (and its designee(s)) shall
have the right to enter upon the Property, or any part thereof, at any time
during the term hereof, for the purpose of ascertaining the condition of the
Property or whether Tenant or any Subtenant is observing and performing their
respective obligations hereunder, all without hindrance or molestation from
Tenant or any Person claiming by, through or under Tenant. The above mentioned
rights of entry shall be exercisable (other than in the case of an emergency) at
reasonable times, at reasonable hours and on reasonable, prior written notice,
and Landlord shall use reasonable efforts to minimize interference with Tenant
and any Subtenants, and shall exercise such right under the supervision of
Tenant's (and any such Subtenant's) employees, agents or designees provided the
same are made reasonably available to Landlord for such purpose upon reasonable
advance notice to Tenant and any such Subtenant (as applicable).
SECTION 7.7 UTILITIES; SERVICES; NO LANDLORD RESPONSIBILITY. Tenant
shall be responsible for all charges for gas, electricity, light, heat, water,
sewerage and power, for protective and security services, for telephone and
other communication services, and for all other public or private utility
services which shall be used, rendered or supplied upon or in connection with
the Property, or any part thereof, at any time during the term of this Lease.
Landlord shall not be required to furnish any services, utilities or facilities
whatsoever to the Property, nor shall Landlord have any duty or obligation to
make any Alteration or repair to the Property. Tenant assumes the full
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and sole responsibility for the condition, operation, repair, alteration,
improvement, replacement, maintenance and management of the Property.
SECTION 7.8 ENVIRONMENTAL. Tenant shall not undertake, permit or
suffer any Environmental Activity at the Property other than (a) in compliance
with all applicable Insurance Requirements and Legal Requirements and (b) in
such a manner as shall keep the Property free from any lien imposed in respect
or as a consequence of such Environmental Activity. Tenant shall take all
necessary steps to ensure that any permitted Environmental Activity undertaken
or permitted at the Property is undertaken in a manner as to provide prudent
safeguards against potential risks to human health or the environment or to the
Property. Tenant shall notify Landlord within twenty-four (24) hours after
Tenant becomes aware of the release or discharge of any Hazardous Materials from
or at the Property and Tenant shall forthwith remediate or remove such Hazardous
Materials, subject to the last sentence of this SECTION 7.8. Landlord shall have
the right from time to time to conduct an environmental audit of the Property,
PROVIDED Landlord has reasonable cause to believe (i) Hazardous Materials have
been released or discharged or is otherwise present at the Property or (ii)
Tenant is otherwise in violation of any Legal Requirement or Insurance
Requirement relating to Hazardous Materials, and Landlord provides written
notice of its intention to conduct an environmental audit together with a
statement setting forth the reasons therefor. Tenant shall cooperate in the
conduct of such environmental audit. The cost of such audit shall be payable by
Tenant upon Landlord's demand therefor; PROVIDED, HOWEVER, that if Tenant
objects to such audit by written notice received by Landlord prior to the
initiation of such audit and such audit (and any more-detailed environmental
audit of the same circumstances (e.g., a so-called phase II environmental
assessment)) fails to identify any Environmental Activity in violation of Legal
Requirements, Landlord shall pay the costs of such audit. Such audit shall be
performed at reasonable times, at reasonable hours and on at least five (5)
Business Days notice (except in the case of an emergency), Landlord shall make
reasonable efforts to minimize interference with Tenant and any Subtenants, and
shall require its audit contractor to carry commercial liability insurance in a
commercially reasonable amount, naming Tenant and Landlord as additional
insureds, and to deliver Tenant evidence thereof no less than five (5) Business
Days prior to commencing such audit. Notwithstanding anything to the contrary in
the foregoing portions of this SECTION 7.8: (A) nothing contained in this
SECTION 7.8 shall require Tenant to remove or remediate any Hazardous Waste
unless required to do so by Legal Requirements; and (B) Tenant shall have the
right, in accordance with SECTION 7.4, to contest the validity of any Legal
Requirement applicable to the remediation or removal of Hazardous Materials,
PROVIDED Tenant forthwith takes all necessary steps to prevent any further
discharge or release of Hazardous Materials or any other or further
deterioration to the Property caused by Hazardous Materials; PROVIDED, HOWEVER,
that, in any event, Tenant may not delay such remediation or removal during the
pendency of such contest if the presence of such Hazardous Materials poses an
imminent threat to the Property or any persons or if such delay could expose
Landlord to increased liability arising from such Hazardous Materials.
SECTION 7.9 EQUITABLE RELIEF. Tenant hereby acknowledges that
Landlord may suffer irreparable harm by reason of a breach or threatened breach
of the provisions of this ARTICLE VII, and, accordingly, in addition to any
other remedy that Landlord may have under this Lease or as may be permitted by
applicable law, Landlord shall be entitled to seek to enjoin the action,
activity or inaction that gives rise to such breach or threatened breach by
Tenant.
SECTION 7.10 WINDOWS. Tenant shall not clean or require, permit,
suffer or allow any window in the Improvements to be cleaned from the outside in
violation of Section 202 of the Labor Law or any other Legal Requirements or
Insurance Requirements.
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SECTION 7.11 ADVERSE POSSESSION. Tenant shall not suffer or permit
the Property or any portion thereof to be used by the public or any Person
without restriction or in such manner as would, with the lapse of time, impair
title to the Property or any portion thereof, or create the basis for a
legitimate claim or claims of adverse usage or adverse possession by the public,
as such, or any Person, or of implied dedication of the Property, or any portion
thereof.
SECTION 7.12 PRE-POSSESSION OBLIGATIONS. Except as expressly set
forth hereunder or in a separate agreement between ESDC and Tenant, Tenant shall
have no rights, obligations or liability in respect of the Property prior to the
delivery of Possession.
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ARTICLE VIII
REPAIRS
SECTION 8.1 REPAIRS.
(a) MAINTENANCE OF PROPERTY. As set forth in SECTION 7.3 hereof,
Tenant shall (i) maintain the Property for its Permitted Uses, and (ii) make all
repairs, restorations and replacements thereto, interior and exterior,
structural and nonstructural, ordinary and extraordinary, and foreseen and
unforeseen.
(b) QUALITY OF REPAIRS. Except as provided in SECTION 7.4 hereof,
all repairs, restorations and replacements shall be at least equivalent in
standard and quality to the standard and quality of the original work or
property replaced, as the case may be. All repairs, restorations and
replacements shall be sufficient for the proper maintenance and operation of the
Property and shall be made in compliance with all Legal Requirements and
Insurance Requirements, the requirements of the DUO and in compliance with the
applicable provisions of ARTICLE IX hereof as if such repairs, restorations or
replacements were Alterations thereunder.
(c) EQUIPMENT; ACCESS. Tenant covenants and agrees that throughout
the term of this Lease (i) all Equipment shall be maintained in good and safe
operating order and repair, and (ii) the Property shall, at all times, have
adequate means of ingress and egress to and from the public streets and the
sidewalks used in connection therewith. Tenant shall obtain and maintain, or
cause the Subtenants to obtain and maintain, any and all permits required in
connection with the operation of all portions of the Property and each Demised
Space. Landlord shall not be required to furnish or obtain any permits, or to
make any repairs or Alterations, in, or to, the Property or the Equipment during
the term of this Lease. Tenant hereby assumes the full and sole responsibility
for the condition, operation, repair, replacement, maintenance and management of
the Property and the Equipment.
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ARTICLE IX
ALTERATIONS
SECTION 9.1 REQUIREMENTS FOR ALTERATIONS. Subject to the provisions
of this ARTICLE IX, Tenant shall have the right to make Alterations in and to
the Property. In addition to the provisions of this ARTICLE IX, all Alterations
are subject to the provisions of SECTIONS 6.3, 6.8, 6.10 and 6.11 hereof.
SECTION 9.2 MAJOR ALTERATIONS.
(a) CONDITIONS TO PERFORMANCE. In addition to the requirements of
SECTION 9.1 hereof (A) if the reasonably estimated cost of any proposed
Alteration in or to the Property or any portion thereof equals or exceeds Two
Million Dollars ($2,000,000) calculated with respect to the Property as a whole
(Adjusted for Inflation from and after the Substantial Completion Date),
excluding the cost of interior cosmetic and decorative items included in such
Alteration, either individually or in the aggregate with other Alterations in or
to the Property or any portion thereof undertaken by the same party during any
Lease Year in connection with a single job that is performed in stages (each, a
"$2,000,000+ ALTERATION"), (B) to the extent that any portion of any Alteration
involves work which will affect any Structural Component other than by having a
Nonadverse Structural Effect (each, a "STRUCTURAL ALTERATION"), or (C) to the
extent that any portion of any Alteration affects any portion of the Property
that is governed by any element of the DUO (each, a "DUO ALTERATION"; any
Alteration described by clauses (B) or (C) above, a "DUO/STRUCTURAL ALTERATION";
any Alteration described by clauses (A), (B) or (C) above, a "MAJOR
ALTERATION"):
(i) Tenant shall furnish to Landlord the following, in respect
only of a DUO/Structural Alteration, at least thirty (30) Business Days prior to
commencement of any such DUO/Structural Alteration, complete proposed Final
Plans and Specifications for such DUO/Structural Alteration (which shall include
complete information and dimensions necessary for the construction and finishing
of the applicable DUO/Structural Alteration and for any engineering required in
connection therewith (both standard architectural drawings and in electronic
format (including CAD drawings)), prepared by an Architect or by a reputable,
licensed professional engineer selected by Tenant (or any Subtenant, as
applicable), which submittal shall comply with all applicable Legal Requirements
and Insurance Requirements, and any other drawings, information or samples which
Landlord may reasonably request, all of the foregoing to be subject to
Landlord's review and approval (1) in respect of any DUO Alteration, only for
compliance with the DUO in accordance with the procedures, and within the time
periods, applicable to the review and approval of "Design Development Plans" and
"Final Plans", as the case may be, as prescribed in the applicable DUO Exhibit
and (2) in respect of any Structural Alteration, in accordance with the
procedures, and within the time periods, applicable to the review and approval
of "Design Development Plans" and "Final Plans", as the case may be, as
prescribed in EXHIBIT E-6 attached hereto; PROVIDED, HOWEVER, (A) Construction
Work in connection with any DUO/Structural Alteration shall not commence until
Landlord shall have approved the proposed Final Plans and Specifications for
such DUO/Structural Alteration (it being agreed that Landlord's disapproval of
one or more DUO/Structural Alterations shall not impede Tenant's right to
proceed pursuant hereto with any Landlord approved DUO/Structural Alteration so
long as the Alteration being pursued is not related in any way to the Alteration
that has not been approved by Landlord), and (B) that Landlord's approval of the
proposed Final Plans and Specifications (or any modifications thereto) shall not
be, nor shall be construed as
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being, or relied upon as, a determination that any such proposed Final Plans and
Specifications (or any modifications thereto) comply with any Legal Requirements
or Insurance Requirements;
(ii) Tenant shall furnish to Landlord, at least ten (10)
Business Days prior to commencement of any $2,000,000+ Alteration, any one of
the following: (A) cash or an irrevocable letter of credit in such amount as
shall be satisfactory to Landlord; (B) payment and performance bonds in forms
and by sureties reasonably satisfactory to Landlord; (C) a guaranty in form and
from a creditworthy entity reasonably satisfactory to Landlord; or (D) such
other security as shall be reasonably satisfactory to Landlord (it being agreed
that an acceptable guaranty of an Acceptable Guarantor shall be security
reasonably satisfactory to Landlord under this SECTION 9.2(a)(ii)); and
(iii) Each such Major Alteration shall be conducted under the
supervision of a reputable and experienced architect, engineer or construction
professional reasonably acceptable to Landlord (it being acknowledged that,
pursuant to SECTION 6.1(d) hereof, a DUO/Structural Alteration may require the
participation of the Design Architect, an other Architect or an Engineer).
(b) Each Major Alteration subject to SECTION 9.2(a) hereof shall
conform substantially and in all material respects to the Final Plans and
Specifications approved therefor pursuant to SECTION 9.2(a)(i) hereof, and any
other Alteration for which Final Plans and Specifications were submitted to
Landlord pursuant to SECTION 9.2(c) hereof shall conform substantially and in
all material respects to such Final Plans and Specifications.
(c) MODIFICATION OF FINAL PLANS AND SPECIFICATIONS. In the event
Tenant shall desire to modify Final Plans and Specifications that Landlord has
theretofore approved pursuant to SECTION 9.2(a)(i) hereof, Tenant shall submit
the proposed modification to Landlord (which proposed modification shall comply
with all applicable Legal Requirements). Landlord shall review the proposed
modification in accordance with the provisions of SECTION 6.2(d) hereof and the
applicable portions of the DUO, if any.
(d) ALTERATIONS CERTIFICATION. If Legal Requirements require that
plans be submitted to the New York City Department of Buildings in respect of a
given Alteration, Tenant shall deliver to Landlord at least seven (7) Business
Days prior to the commencement of work in respect thereof a certification (the
"ALTERATIONS CERTIFICATION") signed by a Qualified Certifying Party of Tenant
(i) describing the applicable Alteration, (ii) setting forth the reasonably
estimated cost thereof and (iii) stating whether such Alteration will or will
not affect any Structural Component (or if such Alteration will affect a
Structural Component, stating whether or not such Alteration will have only a
Nonadverse Structural Effect) and will or will not affect any element of the
DUO. A copy of the Final Plans and Specifications, if any, prepared for any such
Alteration shall be submitted with the Alterations Certification, and the
architect or engineer who prepared such plans and specifications shall also sign
the Alterations Certification. If the statement set forth in the Alterations
Certification indicates that the Alteration in question will affect any
Structural Component (other than by having a Nonadverse Structural Effect) or
any element of the DUO or is otherwise untrue, or if Tenant fails to submit an
Alterations Certificate, the applicable Alteration shall be subject to the
requirements of SECTION 9.2(a) hereof and the commencement of the Alteration
without compliance with the requirements of SECTION 9.2(a) hereof shall
constitute a Default hereunder.
SECTION 9.3 REIMBURSEMENT OF EXPENSES OF REVIEW. Tenant shall
reimburse Landlord for the commercially reasonable, actual out-of-pocket fees
and expenses of any Architect or Engineer selected by Landlord to review any
plans and specifications for any Alteration (i) subject to
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SECTION 9.2(a) hereof or (ii) the correctness of the Alterations Certification
associated therewith is being contested by Landlord; PROVIDED, HOWEVER, that (a)
such fees and expenses shall be limited to those incurred in reviewing the
portion of such plans and specifications governed by any element of the DUO or
affecting a Structural Component (other than by having a Nonadverse Structural
Effect), and (b) Tenant's reimbursement obligation under this SECTION 9.3 shall
not exceed one-half percent (0.5%) of the cost of such Alteration.
SECTION 9.4 DISPUTES. Disputes regarding any aspect of this ARTICLE
IX, other than those expressly stated otherwise or those that pertain to the
DUO, may be referred to arbitration pursuant to SECTION 16.3 hereof.
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ARTICLE X
INSURANCE
SECTION 10.1 INSURANCE. At all times during the term of this Lease
after the Vesting Date, Tenant shall keep and maintain, or cause to be kept and
maintained, policies of:
(a) commercial property insurance on the Improvements and Tenant's
personal property covering, at a minimum, the perils insured under the ISO
special causes of loss form (CP 10 30) (or a substitute form providing
equivalent coverage) (including (i) debris removal, demolition and increased
cost of construction that are caused by operation of Legal Requirements
regulating the construction or repair of damaged facilities, (ii) flood (subject
to SECTION 10.1(i) hereof) and, to the extent available at commercially
reasonable rates, earth movement coverage, and (iii) coverage against collapse
and including an ordinance and law endorsement, in an amount not less than the
then Full Insurable Value subject to the foregoing qualification with respect to
flood and earthquake insurance and subject to commercially reasonable
deductibles reasonably approved by Landlord;
(b) commercial general liability insurance written on ISO occurrence
form CG 00 01 (or a substitute form providing equivalent coverage, which shall
include a broad form CGL endorsement if the substitute form is a 1973 edition
CGL form), which shall cover liability arising from Property operations,
independent contractors, products and completed operations, personal injury and
advertising injury and liability assumed under an insured contract, protecting
and indemnifying Tenant and Landlord, from and against any and all claims for
damages or injury to person or property or for loss of life or of property
occurring upon, in, or about the Property and the adjoining streets, vaults,
sidewalks and passageways, such insurance to afford immediate protection, to the
limit of not less than Fifty Million Dollars ($50,000,000) (as such sum shall be
Adjusted for Inflation from the Commencement Date) per occurrence and Fifty
Million Dollars ($50,000,000) (as such sum shall be Adjusted for Inflation from
the Commencement Date) in the aggregate for all occurrences within each policy
year; such policy shall include a provision that said aggregate limit shall
apply separately at the Property, or, alternatively, such coverage shall be in
an amount not less than One Hundred Million Dollars ($100,000,000) (as such sum
shall be Adjusted for Inflation from the Commencement Date) per occurrence and
in the aggregate, and that said insurer will provide notice to the Landlord if
said aggregate is reduced by either payments of a claim or establishment of a
reserve for claims if said payments or reserves exceed Five Million Dollars
($5,000,000); Tenant agrees that if the aggregate limit is reduced by the
payment of a claim or establishment of a reserve to take all practical immediate
steps to have the aggregate limit restored by endorsement to the existing policy
or the purchase of an additional insurance policy;
(c) boiler and pressure vessel insurance including pressure pipes;
(d) from and after Substantial Completion, business interruption
insurance (except with respect to the NYTC Component) in an amount no less than
the sum of PILOT, Adjusted Gross Revenues and Theater Surcharge for one (1) year
as determined by Tenant, subject to 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, and which insurance shall be payable
to Landlord or Tenant, as their respective interests may appear;
(e) workers' compensation and employers liability insurance covering
all persons employed at or in respect of the Property, with statutorily required
limits; workers' compensation
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insurance shall include policy endorsements providing an extension of the policy
to cover the liability of the insured under the "Other States Coverage";
(f) business automobile liability insurance covering liability
arising out of any vehicle (including owned, non-owned, leased, rented and/or
hired vehicles) insuring against liability for bodily injury, death and property
damage in an amount not less than Five Million Dollars ($5,000,000) (as such sum
shall be Adjusted for Inflation every five (5) years after the Commencement
Date) each accident limit;
(g) during the performance of any Construction Work, builder's risk
completed value form insurance covering the perils insured under the ISO special
causes of loss form, including collapse, water damage, transit, flood (subject
to SECTION 10.1(i) hereof) or equivalent coverage under Tenant's "all risk"
policy, and, to the extent available at commercially reasonable rates, earth
movement coverage, with deductible reasonably approved by any Recognized
Mortgagee (and, if none, by Landlord), in nonreporting form, covering the total
value of work performed and equipment, supplies and materials furnished (with an
appropriate limit for soft costs in the case of construction) and covering the
full insurable value (exclusive of the cost of noninsurable items, such as
excavation, foundations, and footings) of all equipment, supplies and materials
at any off-site storage location used with respect to the Property (subject to
the foregoing qualification with respect to earthquake insurance) and subject to
commercially reasonable deductibles reasonably approved by Landlord;
(h) during the performance of any Construction Work, commercial
general liability insurance, as required in SECTION 10.1(b) hereof, in an amount
of not less than $100,000,000 per occurrence and in the aggregate;
(i) flood insurance, if the Property or any part thereof is located
in an area identified by the Secretary of Housing and Urban Development, or any
successor thereto, as an area having special flood hazards and in which flood
insurance has been made available and to the maximum extent available under the
national Flood Insurance Act of 1968, as amended;
(j) pollution liability insurance with limits of not less than Five
Million Dollars ($5,000,000) (as such sum shall be Adjusted for Inflation from
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), providing
coverage for bodily injury or property damage arising from, or cleanup of,
actual, alleged or threatened emission, discharge, dispersal, seepage, release
or escape of Hazardous Materials from, on, under, in or onto the Property,
including any loss, cost or expense incurred as a result of the investigation,
settlement or defense of any claim, suit, or proceedings against Landlord,
including the payment of any monetary awards of compensatory damages, arising
from any such occurrence;
(k) insurance to keep all glass in the Property and in the perimeter
and demising walls thereof, and the frames for such glass, insured against
damage (including temporary repairs) subject to commercially reasonable
deductibles reasonably approved by Landlord;
(l) while any of the Improvements or any portions thereof are being
removed, in transit or at an off-site location, trip transit, installation
floater and bailee floater insurance (or any substitute form providing
equivalent coverage) covering the perils insured under the ISO special causes of
loss form, including collapse, water damage, transit, flood (subject to SECTION
10.1(i)
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hereof), and, to the extent available at commercially reasonable rates, earth
movement coverage, with deductible reasonably approved by any Recognized
Mortgagee (and if none, by Landlord), in nonreporting form, covering the Full
Insurable Value of such Improvements; and
(m) such other insurance and in such amounts as may from time to
time be then customarily carried by owners of comparable Class "A" office
buildings (as understood on the date hereof) in midtown Manhattan.
SECTION 10.2 REQUIREMENTS FOR POLICIES. All insurance provided for
in this ARTICLE X (and in any other provision of this Lease) shall:
(a) be effected under standard form policies issued by insurers of
recognized responsibility, authorized to do business in the State of New York,
which are rated no less than "A-/VII" in the then current edition of Best's
Insurance Report (or the then equivalent of such rating); PROVIDED, HOWEVER,
that insurers providing coverage in excess of the amounts required by SECTION
10.1 hereof may have a lower rating than the rating indicated in this SECTION
10.2(a) so long as any such insurers providing such excess coverage and having a
lower rating than is required by the first clause of this SECTION 10.2(a) are
not treated as "co-insurers" hereunder of the amounts set forth in SECTION 10.1
hereof;
(b) as to any policies of insurance of the character described in
SECTIONS 6.1(c)(vi), 10.1(a), 10.1(c), 10.1(d), 10.1(g), 10.1(i), 10.1(j),
10.1(k), 10.1(l) and 10.1(m) hereof (if applicable), expressly provide that any
losses thereunder, subject to SECTION 10.6 hereof, shall be adjusted with
Landlord and Tenant. All such insurance shall be carried in the name of Tenant
or an applicable Subtenant and shall name the Landlord, other Public Parties and
any property managers retained by Landlord as additional insureds thereunder.
Any loss thereunder shall be made payable to Landlord (PROVIDED that if
Depositary has been appointed to receive such funds, then to such Depositary),
and Tenant, as their respective interests may appear; and
(c) to the extent obtainable, contain an agreement by the insurer
that such policy shall not be cancelled or materially altered to reduce the
amount or the extent of any coverage afforded thereunder without at least thirty
(30) days' prior written notice to Landlord, and shall provide that any loss
otherwise payable thereunder shall be payable notwithstanding any act or
negligence of Landlord or Tenant which might, absent such agreement, result in a
forfeiture of all or part of the payment of such loss.
SECTION 10.3 WAIVER OF SUBROGATION.
(a) WAIVER OF SUBROGATION. Each of the parties hereto shall include
in each of its policies insuring against loss, damage or destruction by fire or
other insured casualty relating to the Property a waiver of the insurer's right
of subrogation against the other party hereto, or, if such waiver is
unobtainable (i) an express agreement that such policy shall not be invalidated
if Tenant waives or has waived before the casualty the right of recovery against
the other party hereto or (ii) any other form of permission for the release of
the other party hereto, provided such waiver, agreement or permission is
obtainable under normal commercial insurance practice at the time. If such
waiver, agreement or permission shall not be, or shall cease to be, obtainable
without additional charge or at all, the party hereto shall so notify the other
party hereto promptly after notice thereof. If the other party hereto shall
agree in writing to pay the insurer's additional charge therefor, such waiver,
agreement or permission shall (if obtainable) be included in the policy.
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(b) WAIVER OF RIGHT OF RECOVERY. As long as the insurance policies
of each party hereto include the waiver of subrogation or agreement or
permission to release liability referred to in SECTION 10.3(a) hereof, such
party, to the extent that such insurance is in force and collectible, hereby
waives, for itself and those claiming through and under it, any right of
recovery against the other party hereto and its agents for any loss occasioned
by fire or other insured casualty. If at any time any insurance policies of any
party hereto shall not include such or similar provisions, the waivers set forth
in the immediately preceding sentence shall be of no further force or effect.
SECTION 10.4 DELIVERY OF POLICIES.
(a) ORIGINAL POLICIES. Prior to the Vesting Date and thereafter not
less than thirty (30) days prior to the expiration dates of the expiring
policies theretofore furnished pursuant to this ARTICLE X, Tenant shall deliver
to Landlord a certified copy of the policies required by this ARTICLE X or
insurance certificates (in forms reasonably acceptable to Landlord) binding the
insurer certifying the issuance of such policies, bearing notations evidencing
the payment of premiums or accompanied by other evidence reasonably satisfactory
to Landlord of such payment, or certificates evidencing same.
(b) INSURER CERTIFICATION. Tenant shall, upon the written request of
Landlord, obtain and deliver to Landlord, within twenty (20) Business Days after
the date of any such request, a written certification from Tenant's insurer or
independent insurance agent describing in reasonable detail the insurance
policies then being maintained by Tenant in accordance with the requirements of
this ARTICLE X.
SECTION 10.5 SEPARATE INSURANCE. Tenant shall not take out separate
insurance concurrent in form or contributing in the event of loss with that
required in this ARTICLE X to be furnished by, or which may reasonably be
required to be furnished by, Tenant unless Landlord is included therein as an
insured, with loss payable as in this Lease provided. Tenant shall immediately
notify Landlord of the taking out of any such separate insurance and shall
deliver the policy or policies as provided in SECTION 10.4 hereof.
SECTION 10.6 COOPERATION; ADJUSTMENT. Landlord and Tenant shall
cooperate in connection with the collection of any insurance monies that may be
due in the event of loss, but the same shall be at the sole cost and expense of
Tenant. If Tenant shall fail promptly and with due diligence to make claim for
and use good faith efforts to collect any insurance monies that are so due,
Landlord, upon twenty (20) Business Days prior written notice to Tenant, may
make claim for and collect the same directly on behalf of and in the name of
Landlord and Tenant. The aforesaid notice shall include the following, in
boldface print: "IN THE EVENT THAT TENANT FAILS TO MAKE A CLAIM FOR AND TO
COLLECT INSURANCE PROCEEDS, AS REQUIRED IN SECTION 10.6 OF THE LEASE, AND SUCH
FAILURE CONTINUES FOR TWENTY (20) BUSINESS DAYS AFTER DELIVERY OF THIS NOTICE,
LANDLORD SHALL BE ENTITLED TO MAKE SUCH CLAIM AND COLLECT SUCH PROCEEDS.".
Landlord (in the event that claim in question is for an amount in excess of
$5,000,000), Tenant and, if required by the terms of the applicable Recognized
Mortgage, the Recognized Mortgagee most senior in lien, shall be entitled to
participate in any negotiations with the insurer regarding the adjustment of
claims for damage to the Property, and any settlement agreement shall be subject
to the approval of Landlord (in the event that claim in question is for an
amount in excess of $5,000,000), Tenant and such Recognized Mortgagee, such
approval not to be unreasonably withheld.
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SECTION 10.7 APPROVAL BY LANDLORD. No approval by Landlord of any
insurer shall be construed to be a representation, certification or warranty of
such insurer's solvency and no approval by Landlord as to the amount, type or
form of any insurance shall be construed to be a representation, certification
or warranty of such insurance's sufficiency. Tenant shall be solely responsible
for covering the deductibles under the insurance policies provided hereunder
regardless of whether Landlord has approved the amount of such deductibles.
SECTION 10.8 DEPOSITARY. Subject to SECTION 10.9 hereof, any loss
under all policies required by any provision of this Lease insuring against
damage to the Property by fire or other casualty shall be payable to the
Depositary, except that amounts of less than Three Hundred Fifty Thousand
Dollars ($350,000) (as such sum shall be Adjusted for Inflation from the
Commencement Date) shall be payable in trust directly to Tenant for application
to the cost of Restoration in accordance with ARTICLE XI hereof.
SECTION 10.9 SECURITY FOR COMMERCIAL PROPERTY INSURANCE PREMIUM.
(a) Tenant: (i) on behalf of the FC Member, shall, on or prior to
the Delivery Date, deposit the sum of $25,000 with Landlord (the "CASH DEPOSIT")
as security for the full and faithful performance and observance by Tenant of
Tenant's covenants or obligations under SECTION 10.1(a) hereof; and (ii) on
behalf of NYTC Member, shall, simultaneously with the execution of this Lease,
provide to Landlord a guaranty (the "INSURANCE GUARANTY"; and together with the
Cash Deposit, the "SECURITY DEPOSIT"), satisfactory to Landlord, by NYTC, of
Tenant's Obligations under SECTION 10.1(a) hereof, guarantying such obligations
up to $75,000. If on the fifth anniversary of the Commencement Date, Tenant
shall have fully performed its obligations under SECTION 10.1(a) hereof,
Landlord shall reduce (1) the amount of the Cash Deposit to $12,500 and (2) the
value of the Insurance Guaranty to $37,500. The Security Deposit shall be
Adjusted for Inflation once every five (5) years beginning on the tenth
anniversary of the Commencement Date; PROVIDED, HOWEVER, if prior to the fifth
anniversary of the Commencement Date Landlord shall have sent notice to Tenant
that Tenant is or has ever been in default of the provisions of this SECTION
10.1(a), the amount of the Security Deposit shall be Adjusted for Inflation once
every five (5) years beginning on the fifth anniversary of the Commencement
Date.
(b) In lieu of the Cash Deposit, Tenant may deliver a Letter of
Credit, which Letter of Credit shall have a term of not less than one year, be
for the account of Landlord, be in the amount of the Cash Deposit and be fully
transferable by Landlord without the payment of any fees or charges, it being
agreed that if any such fees or charges shall be so imposed, then such fees or
charges shall be paid by Tenant. The Letter of Credit shall provide that it
shall be deemed automatically renewed, without amendment, for consecutive
periods of one year each thereafter during the term of this Lease, unless the
Issuing Bank sends notice (the "NON-RENEWAL NOTICE") to Landlord and Tenant by
certified mail, return receipt requested, not less than thirty (30) days next
preceding the then expiration date of the Letter of Credit that it elects not to
have such Letter of Credit renewed. If the Issuing Bank sends a Non-Renewal
Notice to Landlord and Tenant, then at least twenty (20) days prior to the
expiration of the Letter of Credit (and each subsequent Letter of Credit),
Tenant shall deliver to Landlord either (A) cash in the amount of the Security
Deposit or (B) a renewal or new Letter of Credit in the same amount as the
Security Deposit. If Tenant fails to deliver either the cash or renewal or new
Letter of Credit as specified above prior to the expiration of such twenty-day
period, then Landlord shall have the right to draw upon the existing Letter of
Credit and to receive the monies represented by the existing Letter of Credit
and to hold such proceeds pursuant to the terms of this SECTION 10.9 as the Cash
Deposit pending the replacement of such Letter
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of Credit. The Letter of Credit shall provide that if the Landlord does not send
notice to the Issuing Bank that Tenant is or has ever been in default of the
provisions of SECTION 10.1(a) hereof, the amount of the Letter of Credit shall
be reduced to $12,500 on the fifth anniversary of the Commencement Date and
thereafter, such amount shall be deemed to be the "Security Deposit" hereunder.
(c) If Tenant defaults in the full and prompt payment and
performance of any of Tenant's covenants or obligations under SECTION 10.4(a)
hereof in respect of the policies to be maintained under SECTION 10.1(a) hereof,
Landlord may use, apply or retain the whole or any part of the Security Deposit
and the interest accrued thereon, if any, to the extent required for the payment
of any insurance premium required to meet Tenant's obligations under SECTION
10.1(a) hereof. If Landlord shall so use, apply or retain the whole or any part
of the Security Deposit and the interest accrued thereon, Tenant shall upon
demand immediately deposit with Landlord a sum equal to the amount so used,
applied or retained. If Tenant shall fully and faithfully comply with all of
Tenant's obligations under SECTION 10.4(a) hereof in respect of the policies to
be maintained under SECTION 10.1(a) hereof, the Security Deposit (including
interest thereon) or any balance thereof, shall be returned or paid over to
Tenant after the date on which this Lease shall expire or sooner end or
terminate, and after delivery to Landlord of entire possession of the Property.
In the event of any sale of Landlord's interest in the Lease, Landlord shall
have the right to assign its interest in the Security Deposit to the transferee
or assignee and Landlord shall thereupon be released by Tenant from all
liability for the return or payment thereof; and Tenant shall look solely to the
new landlord for the return or payment of the same; and the provisions hereof
shall apply to every transfer or assignment made of the same to a new landlord.
Tenant shall not assign or encumber or attempt to assign or encumber the
Security Deposit and neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
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ARTICLE XI
DAMAGE AND DESTRUCTION
SECTION 11.1 DAMAGE AND DESTRUCTION.
(a) RESTORATION. If, at any time during the term of this Lease, all
or any part of the Property or any portion thereof shall be destroyed or damaged
in whole or in part by fire or other casualty (including any casualty for which
insurance was not obtained or obtainable) of any kind or nature, ordinary or
extraordinary, foreseen or unforeseen (each, a "CASUALTY"), Tenant shall: (i)
give to Landlord immediate notice thereof, except that no notice shall be
required if the estimated cost of repairs, restorations, replacements and
rebuilding, including temporary repairs or the protection of other property
pending the completion of any repair, restoration, replacement or rebuilding
thereof (collectively, "RESTORATION") shall be less than One Hundred Thousand
Dollars ($100,000.00); (ii) file all required documents and instruments with its
insurers, and make such claims with its insurers as shall be necessary or
advisable; and (iii) take such steps as shall be necessary or advisable to
preserve any undamaged portion of the Property and to insure that the portions
of the Property that are accessible to the public shall be safe and free from
conditions hazardous to life and property. Subject to SECTION 11.1(g) hereof,
Tenant shall, whether or not such Casualty shall have been insured, and whether
or not insurance proceeds, if any, shall be sufficient for the purpose of such
Restoration, diligently and with continuity (subject to Unavoidable Delays and
commercially reasonable standards) repair, alter, restore, replace and rebuild
(collectively, "RESTORE") the Property, as nearly as possible to the condition,
quality and class of the Property existing immediately prior to such occurrence
(using materials, equipment and construction techniques which are common at the
time of the damage or destruction), with such Alterations as Tenant, with the
consent of Landlord in accordance with the standards of review set forth in
ARTICLE IX hereof, shall elect to make, provided that after Restoration, the
Property is in substantial conformity with the applicable Final Plans and
Specifications and in compliance with the DUO. Each Restoration shall be
performed in accordance with the provisions of this ARTICLE XI and the
provisions of ARTICLE IX hereof as if such Restoration were an "ALTERATION"
thereunder. In any case where this Lease shall expire or be terminated prior to
the completion of a Restoration other than in connection with the exercise of
the Purchase Option, Tenant shall account to Landlord for all amounts spent in
connection with any Restoration which was undertaken and shall pay over to
Landlord, within ten (10) days after demand, the remainder, if any, of the
Restoration Funds previously received by it. Notwithstanding the foregoing, if a
Casualty occurs during the last three (3) years of the term of this Lease and
the Restoration is estimated pursuant to SECTION 10.1(d) hereof to require six
(6) months or longer after receipt of the insurance proceeds to complete, Tenant
shall have the right to terminate this Lease by giving notice to Landlord to
such effect no later than ninety (90) days after the occurrence of such fire or
other casualty. In the event Tenant gives such notice, this Lease shall be
deemed cancelled and terminated as of the date of the giving of such notice as
if such date were the Scheduled Expiration Date, and neither party shall have
any further rights or Obligations hereunder except such rights and Obligations
which by their express terms survive the termination of this Lease.
(b) NON-CONFORMING RESTORATION. If Tenant proposes a Restoration
which does not conform to the condition, quality or class of the New Building as
it existed immediately prior to the damage or destruction and such
non-conformity would affect any element of the DUO (i.e., if the Restoration
would result in any element of the New Building subject to the requirements of
the DUO not being in substantially the same condition after the Restoration as
it was immediately prior to the Casualty) or affects a Structural Component
(other than by having a Nonadverse Structural Effect), Tenant shall give
Landlord notice of such proposed nonconformity, and Landlord shall review and
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approve or disapprove such Construction Work in accordance with (i) the standard
of review and time periods applicable to a Major Alteration under SECTION 9.2(a)
hereof and (ii) the applicable portions of the DUO. If Landlord disapproves such
Construction Work. Landlord's notice of disapproval shall state, in reasonable
detail, the grounds for such disapproval.
(c) COMMENCEMENT AND COMPLETION OF RESTORATION. Subject to
Unavoidable Delays and to the applicable provisions of the Site 8 South Subway
Agreement, Tenant shall commence the Restoration within one hundred eighty (180)
days after the date of the occurrence of the applicable damage or destruction;
PROVIDED, HOWEVER, that if Tenant's Recognized Mortgagee allows Tenant to
commence Restoration within a longer period, but not greater than one (1) year
after the date of occurrence of the applicable damage or destruction, then
Tenant shall be permitted to commence the Restoration required hereunder within
one year after the date of such occurrence. Once commenced, Tenant shall
diligently and continuously prosecute any such Restoration to completion.
(d) RESTORATION ESTIMATE. Tenant shall, within ninety (90) days (or
such longer period as is permitted by Tenant's Recognized Mortgagee, not to
exceed one hundred eighty (180) days) after the occurrence of damage or
destruction to the Property, deliver to Landlord a statement (the "INITIAL
RESTORATION ESTIMATE") prepared by an Architect or an Engineer, approved (or
deemed approved) by Landlord pursuant to SECTION 6.1(d)(ii) hereof), setting
forth such Person's estimate as to the time required to perform the Restoration
and the estimated cost of the Restoration. Landlord, at Tenant's expense, may
engage a registered architect or a licensed professional engineer to prepare its
own Initial Restoration Estimate, and Tenant shall reimburse Landlord for such
expense within ten (10) Business Days after demand therefor by Landlord.
(e) LANDLORD'S RIGHTS. Landlord in no event shall be obligated to
Restore the Property or any portion thereof or to pay any of the costs or
expenses thereof. If Tenant shall fail or neglect to diligently Restore (subject
to Unavoidable Delays) the Property or the portion thereof so damaged or
destroyed, or having so commenced such Restoration, shall fail to diligently and
continuously complete the same in accordance with the terms of this Lease and
any such failure shall continue for twenty (20) Business Days after written
notice to Tenant specifying such failure in reasonable detail, or if prior to
the completion of any such Restoration by Tenant, this Lease shall expire or be
terminated for any reason (other than the acquisition of fee title by Tenant),
then Depositary shall not make any payment of Restoration Funds to Tenant
hereunder and shall pay any such Restoration Funds to Landlord who may retain
such Restoration Funds without any claim on the part of Tenant thereto and shall
apply such Restoration Funds in any order Landlord may elect but only toward the
payment of the cost of the Restoration or the payment of any Charges or other
sums due and owing to Landlord hereunder.
(f) ADDITIONAL RESTORATION REQUIREMENTS. If the estimated cost of
any Restoration required by the terms of this ARTICLE XI is equal to or greater
than Three Hundred Fifty Thousand Dollars ($350,000) and exceeds the Restoration
Funds available for such Restoration, then, prior to the commencement of such
Restoration or thereafter if it is determined that the cost to complete such
Restoration exceeds the unapplied portion of such Restoration Funds, Tenant
shall deposit with Depositary a bond, cash, Letter of Credit or other security
reasonably satisfactory to Landlord in the amount of such excess (it being
agreed that an acceptable guaranty of an Acceptable Guarantor shall be
reasonably acceptable to Landlord for the purpose of this SECTION 11.1(f) so
long as the estimated cost of Restoration is less than or equal to $10,000,000),
to be held and applied by
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Depositary in accordance with the provisions of SECTION 11.3 hereof, as security
for the completion of such Restoration in accordance with this ARTICLE XI.
(g) PURCHASE OPTION. At any time from and after the tenth (10th)
anniversary of the Delivery Date, in the event of a Substantial Casualty, Tenant
may exercise the Purchase Option in accordance with ARTICLE V hereof. In the
event Tenant does so exercise the Purchase Option, Tenant shall not be required
to Restore hereunder and Landlord shall be deemed to have waived any of
Landlord's interest in any Casualty insurance proceeds as set forth in SECTION
5.2 hereof (and Landlord shall confirm such waiver in writing to Tenant within
ten (10) days of Tenant's request for such waiver).
(h) SURVIVAL. Tenant's obligations under this SECTION 11.1 shall
survive the expiration or earlier termination of this Lease.
SECTION 11.2 RESTORATION FUNDS.
(a) PAYMENT TO DEPOSITARY. Subject to the provisions of SECTION 11.3
hereof, Depositary shall pay over to Tenant from time to time, upon the
following terms, any monies which may be received by Depositary from insurance
obtained or maintained by or for the benefit of Tenant for the Restoration
(other than rent insurance) (the "RESTORATION FUNDS"); PROVIDED, HOWEVER, that
Depositary, before paying such monies over to Tenant, shall be entitled to
reimburse itself, Tenant and Landlord therefrom to the extent, if any, of the
necessary, reasonable and proper expenses (including reasonable attorneys' fees)
paid or incurred by each of the foregoing in the collection of such monies. If
the Restoration Funds are Three Hundred Fifty Thousand Dollars ($350,000) or
less, the same shall be paid directly to Tenant in trust for the Restoration. If
the Restoration Funds are more than Three Hundred Fifty Thousand Dollars
($350,000), Depositary shall pay to Tenant, in the manner provided in this
SECTION 11.2 and SECTION 11.3 hereof, the Restoration Funds for the Restoration.
If the net Restoration Funds after payment of the aforementioned expenses of
collection shall be insufficient to pay the entire cost of the Restoration, as
determined in accordance with SECTION 11.1(d) hereof, Tenant shall deposit the
amount of such shortfall with Depositary to be held and disbursed by Depositary
in the same manner as the other Restoration Funds.
(b) RETAINAGE OF RESTORATION FUNDS. Subject to the provisions of
SECTION 11.3 hereof and to any provisions of the Recognized Mortgage most senior
in lien setting forth additional, more stringent conditions for the disbursement
of the Restoration Funds or the retainage of Restoration Funds not inconsistent
herewith, the Restoration Funds shall be paid to Tenant in installments as the
Restoration progresses, less retainage equal to ten percent (10%) until fifty
percent (50%) of such Restoration is completed, and five percent (5%) until such
Restoration is fully completed, upon application to be submitted by Tenant to
Depositary and Landlord showing the cost of labor and materials (i) purchased
and delivered to the Property for incorporation in such Restoration and that
such materials have been insured by Tenant (including insurance against
vandalism, theft, malicious mischief and the like) for one hundred percent
(100%) of the cost thereof and stored at a reasonably secure and safe location
at the Property, or (ii) incorporated therein since the last previous
application, and due and payable or paid by Tenant. The Depositary shall release
that portion of the retainage applicable to each trade upon completion by such
trade of its portion of such Restoration. If any vendor's, mechanic's, laborer's
or materialman's lien is filed against the Property or any part thereof, or if
any public improvement lien relating to the Restoration is created or permitted
to be created by Tenant and is filed against Landlord, or any assets of
Landlord, and if such lien is not satisfied or discharged (by bonding or
otherwise) within forty-five (45) days after
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filing of the lien, Tenant shall not be entitled to receive any further
installment until such lien is satisfied or discharged (by bonding or
otherwise). Notwithstanding the foregoing, the existence of any such lien shall
not preclude Tenant from receiving any installment of Restoration Funds,
PROVIDED such lien will be discharged with funds from such installment.
(c) BALANCE OF FUNDS. Upon receipt by Landlord of evidence
satisfactory to it that the Restoration has been completed except to an
immaterial extent and paid for in full and that there are no liens on the
Property as a result thereof and upon compliance with any provisions of the
Recognized Mortgage most senior in lien pursuant to SECTIONS 11.2(b) and 11.3
hereof, the balance of the Restoration Funds shall be paid over to Tenant.
Landlord shall recognize any full or partial assignment by Tenant to a
Recognized Mortgagee of any portion of the Restoration Funds payable to Tenant
pursuant to the foregoing sentence.
(d) RESTORATION BY LANDLORD. If Landlord makes the Restoration at
Tenant's expense, as provided in SECTION 11.1(e) hereof, then Depositary shall
pay over the Restoration Funds to Landlord, upon request, to the extent not
previously paid to Tenant pursuant to this SECTION 11.2, and Tenant shall pay to
Landlord, within seven (7) Business Days after demand, any sums in excess of the
portion of the Restoration Funds received by Landlord necessary to complete the
Restoration. Upon completion of the Restoration, Landlord shall deliver to
Tenant a certificate setting forth the expenditures made by Landlord for such
Restoration and Landlord shall pay to Tenant any amount of Restoration Funds
received by Landlord in excess of the amount necessary to complete the
Restoration.
SECTION 11.3 CONDITIONS PRECEDENT TO DISBURSEMENT. The following
shall be conditions precedent to the payment of each installment of Restoration
Funds to Tenant as provided in SECTION 11.2 hereof, together with any additional
conditions imposed by the Recognized Mortgage most senior in lien which is
required to or has agreed to make such Restoration Funds available for the cost
of Restoration:
(a) there shall be submitted to Depositary and Landlord the
certificate of the aforesaid Architect or the aforesaid Engineer stating that
(i) the sum then requested to be withdrawn either has been paid by Tenant or is
due and payable to contractors, subcontractors, materialmen, engineers,
architects or other Persons (whose names and addresses shall be stated) who have
rendered or furnished services or materials for the Restoration and giving a
brief description of such services and materials and the principal subdivisions
or categories thereof and the several amounts so paid or due to each of said
Persons in respect thereof, and stating in reasonable detail the progress of the
Restoration up to the date of said certificate, accompanied by invoices from any
such contractors, subcontractors, materialmen, engineers, architects and other
Persons, (ii) no part of such expenditures has been or is being made the basis,
in any previous or then pending requisition, for the withdrawal of the
Restoration Funds or has been made out of the Restoration Funds previously
received by Tenant, (iii) the sum then requested does not exceed the value of
the services and materials described in the certificate, (iv) the materials,
fixtures and equipment for which payment is being requested are in accordance
with the applicable plans and specifications and changes thereto, approved, to
the extent required hereunder, by Landlord, (v) except in the case of the final
request for payment by Tenant, the balance of the Restoration Funds held by
Depositary, together with any additional funds provided by Tenant to the
Depositary, will be sufficient upon completion of the Restoration to pay for the
same in full, and stating in reasonable detail an estimate of the cost of such
completion, and (vi) in the case of the final request for payment by Tenant, the
Restoration shall have been
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completed, substantially and in all material respects, in accordance with the
provisions of ARTICLE IX hereof that are applicable to such Restoration;
(b) there shall be furnished to Landlord an official search, or a
certificate of a title insurance company reasonably satisfactory to Landlord, or
other evidence reasonably satisfactory to Landlord, showing that there has not
been filed any (i) vendor's, mechanic's, laborer's or materialman's statutory or
other similar lien affecting the Property or any part thereof, or any public
improvement lien with respect to the Property or the Restoration created or
permitted to be created by Tenant affecting Landlord, or the assets of Landlord
which have not been satisfied or discharged of record (by bonding or otherwise)
within forty-five (45) days after the filing of the lien except such as will be
discharged upon payment of the requisite amount out of the sum then requested to
be withdrawn, and (ii) other liens or encumbrances against the Property other
than Permitted Encumbrances; and
(c) Tenant shall have delivered to Landlord and to Depositary
waivers of mechanic's liens with respect to all of the Restoration, completed
prior to the date of Tenant's payment application, on forms reasonably
satisfactory to Landlord.
SECTION 11.4 SECTION 227 OF REAL PROPERTY LAW. The provisions of
this ARTICLE XI shall be deemed an express agreement governing any case of
damage or destruction of the Property by fire or other casualty, and Section 227
of the Real Property Law of the State of New York, providing for such a
contingency in the absence of an express agreement, and any other laws of like
import, now or hereafter in force, shall have no application in such case and
are hereby waived by the parties hereto.
SECTION 11.5 ADDITIONAL REQUIREMENTS FOR RESTORATION. The provisions
of SECTIONS 6.9, 6.10, 6.11, 6.12, 6.13, 9.2(a) and 9.2(b) hereof shall be
applicable to any Restoration as if the same were Alterations under such
Sections.
SECTION 11.6 EFFECT OF CASUALTY ON THIS LEASE. This Lease shall
neither terminate, be forfeited nor be affected in any manner, nor shall there
be a reduction or abatement of Charges by reason of damage to, or total,
substantial or partial destruction of, the Improvements, or by reason of the
untenantability of the Improvements or any part thereof, nor for any reason or
cause whatsoever, except pursuant to the express provisions of this Lease.
Except as so provided, Tenant's obligations hereunder, including the payment of
Charges, shall continue as though the Improvements had not been damaged or
destroyed and shall continue without abatement, suspension, diminution or
reduction whatsoever
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ARTICLE XII
CONDEMNATION
SECTION 12.1 CONDEMNATION.
(a) SUBSTANTIAL TAKING. If, at any time during the term of this
Lease, the whole or Substantially All Of the Property shall be the subject of a
Taking, by any lawful power or authority by the exercise of the right of
condemnation or eminent domain or by agreement among Landlord, Tenant and those
authorized to exercise such right then, (i) if such taking occurs after the
tenth anniversary of the Delivery Date, Tenant may exercise the Purchase Option
pursuant to the provisions of ARTICLE V hereof (and thereupon relinquish forever
its right to be subject to the DUO and receive the correlative benefits
thereof), or (ii) if Tenant does not so exercise the Purchase Option or if the
same is not then exercisable by Tenant hereunder, this Lease and the term of
this Lease shall terminate and expire on the date of such Taking. The term
"SUBSTANTIALLY ALL OF" shall be deemed to mean such portion of the Property as,
when so taken, in Tenant's reasonable judgment, would leave remaining a balance
of the Property which, due either to the area so taken or the location of the
part so taken in relation to the part not so taken, would not under economic
conditions, applicable zoning laws or building regulations then existing or
prevailing, and after performance by Tenant of all covenants, agreements, terms
and provisions contained herein or by Legal Requirements required to be observed
or performed by Tenant, readily accommodate a new building or buildings of a
nature similar to the Property and capable of producing a proportionately (i.e.,
proportional to the Rentable Square Feet not so taken) fair and reasonable net
annual income or capable of supporting substantially similar activities as the
Property.
(b) SUBSTANTIAL TAKING; AWARD. If the whole or Substantially All Of
the Property shall be taken as provided in this ARTICLE XII, then the
condemnation award related thereto shall be paid to Tenant, subject to the
rights of any Recognized Mortgagees.
SECTION 12.2 DATE OF TAKING. For purposes of this ARTICLE XII, the
"DATE OF TAKING" shall be deemed to be the earlier of: (a) the date on which
actual possession of the whole or Substantially All Of the Property, or a part
thereof, as the case may be, is acquired by any lawful power or authority
pursuant to the provisions of the applicable federal or New York State law; and
(b) the date on which title to the Property or the aforesaid portion thereof
shall have vested in any lawful power or authority pursuant to the provisions of
the applicable federal or New York State law.
SECTION 12.3 MINOR TAKING; CONDEMNATION RESTORATION.
(a) CONDEMNATION RESTORATION. If less than Substantially All Of the
Property shall be taken as provided in this ARTICLE XII, then (i) if such taking
involves a portion of the Property valued at greater than Five Million Dollars
($5,000,000) and occurs after the tenth anniversary of the Delivery Date, Tenant
may exercise the Purchase Option pursuant to the provisions of ARTICLE V hereof,
or (ii) if Tenant does not so exercise or is not then permitted to so exercise
hereunder, this Lease and the term hereof shall continue with a proportionate
abatement (based on the ratio of the value of the portion of the Property so
taken to the value of the entire Property immediately prior to such taking) of
the Charges and no other diminution of any of Tenant's Obligations hereunder.
Tenant, at its sole cost and expense, whether or not the award or awards, if
any, shall be sufficient for the purpose and whether or not the Recognized
Mortgagees shall permit the award or awards to be used for the restoration of
the Property, shall diligently (subject to Unavoidable Delays) restore any
remaining part of the Property not so taken so that the latter shall be
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complete, rentable, self-contained architectural units in good condition and
repair with such Alterations as Tenant, with the consent of Landlord, shall
elect to make (such work, a "CONDEMNATION RESTORATION"), PROVIDED that, after
the completion of the Condemnation Restoration, the Property is in substantial
conformity with the applicable Final Plans and Specifications and in compliance
with the DUO, to the extent practicable, taking into account the nature and
extent of the Taking. Notwithstanding the foregoing, if there is a Taking which
results in any damage or destruction to the Existing Improvements, Tenant shall
not be required to restore the Existing Improvements so damaged or destroyed and
if Tenant does not so restore such Existing Improvements, Tenant, once in
possession of that portion of the Property not Taken (if such possession ever
was denied), shall take all steps to insure that such portions of the Property
accessible to the public shall be safe and free from conditions hazardous to
life and property, including, if Landlord in its reasonable judgment determines
necessary, the erection of a fence around as much of the Property as Landlord
may direct. Provided that the condemnation award is made available to Tenant,
Tenant shall commence the Condemnation Restoration within one hundred eighty
(180) days of the date of the Taking and shall diligently and continuously
prosecute such Condemnation Restoration to completion. In the event of any
Taking of the nature described in this SECTION 12.3(a), the entire award for or
attributable to the Land taken in any proceeding with respect to such Taking,
without deduction for any estate vested in Tenant by this Lease, shall be first
paid to Tenant, and the balance of the award, if any, shall be paid to
Depositary if the cost of Condemnation Restoration is more than Three Million
Dollars ($3,000,000) or to Tenant, in trust, if such cost is Three Million
Dollars ($3,000,000) or less.
(b) RESTORATION FUNDS. Subject to the provisions and limitations in
this ARTICLE XII, Depositary shall make available to Tenant as much of that
portion of the condemnation award actually received and held by Depositary, if
any, less all reasonable expenses paid or incurred by Depositary, Tenant and
Landlord in connection with the condemnation proceedings, as may be necessary to
pay the cost of Condemnation Restoration of the part of the Property remaining.
Such Condemnation Restoration, the estimated cost thereof, the payments to
Tenant on account of the cost thereof, Landlord's right to perform the same,
Tenant's obligation with respect to condemnation proceeds held by it, and any
additional conditions imposed by the Recognized Mortgage most senior in lien,
shall be done, determined, made and governed in accordance with and subject to
the provisions of ARTICLES IX and XI hereof as if such amounts were "Restoration
Funds" thereunder. Payments to Tenant as aforesaid shall be disbursed in the
manner set forth in SECTIONS 11.2(b) and 11.3 hereof. Any balance of the award
held by Depositary and any cash and the proceeds of any security deposited with
Depositary pursuant to SECTION 12.4 hereof remaining after completion of the
Condemnation Restoration shall be paid to Tenant, subject to the rights of
Recognized Mortgagees. Each of the parties agrees to execute and deliver any and
all documents that may be reasonably required in order to facilitate collection
of the awards. If the portion of the award made available by Depositary, as
aforesaid, is insufficient for the purpose of paying for the Condemnation
Restoration, Tenant shall nevertheless be required to make the Condemnation
Restoration and pay any additional sums required for the Condemnation
Restoration. Tenant's failure to supply the amount of any such deficiency within
twenty (20) Business Days from demand of Landlord shall constitute a default
hereunder (it being acknowledged and agreed that if such failure occurs after
the tenth anniversary of the Delivery Date, Tenant will, in such circumstance,
be deemed to have exercised the Purchase Option). If any portion of the
condemnation award being used as Restoration Funds remains unused after the
completion of the applicable Condemnation Restoration, the Depositary shall
disburse such monies to Tenant, subject to the rights of the Recognized
Mortgagees.
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(c) PERFORMANCE OF CONDEMNATION RESTORATION. Tenant shall, within
ninety (90) days after the occurrence of any Taking pursuant to this SECTION
12.3, deliver to Landlord a statement (the "INITIAL TAKING ESTIMATE") prepared
by an Architect or an Engineer, selected by Tenant and approved (or deemed
approved) by Landlord pursuant to SECTION 6.1(d)(ii) hereof, setting forth such
Person's estimate as to the time required to perform the Condemnation
Restoration required by such Taking and the estimated cost of such Condemnation
Restoration.
SECTION 12.4 ADDITIONAL RESTORATION REQUIREMENTS. If the estimated
cost of any Condemnation Restoration exceeds the net condemnation award by an
amount equal to the lesser of (a) ten percent (10%) of the estimated cost of
such Condemnation Restoration and (b) $1,000,000, then, prior to the
commencement of such Condemnation Restoration or thereafter if it is determined
that the cost to complete the Condemnation Restoration exceeds the unapplied
portion of such award, Tenant shall deposit with Depositary a bond, cash, Letter
of Credit or other security reasonably satisfactory to Landlord in the amount of
such excess, to be held and applied by Depositary in accordance with the
provisions of SECTION 12.3 hereof, as security for the completion of the
Condemnation Restoration in accordance with this ARTICLE XII.
SECTION 12.5 TEMPORARY TAKING. If the temporary use of the whole or
any part of the Property shall be taken at any time during the term of this
Lease for any public or quasi-public purpose by any lawful power or authority by
the exercise of the right of condemnation or eminent domain or by agreement
between Tenant and those authorized to exercise such right, Tenant shall give
prompt notice thereof to Landlord and of this Lease shall not be reduced or
affected in any way and Tenant shall continue to pay in full the Charges payable
by Tenant hereunder applicable to any period during the term of this Lease
without reduction or abatement, and Tenant shall be entitled to receive for
itself any award or payments for such use.
SECTION 12.6 RIGHT TO COMPENSATION. In case of any governmental
action, not resulting in the Taking of any portion of the Property but creating
a right to compensation therefor, such as the changing of the grade or any
street upon which the Property abuts, then, except as otherwise provided in
SECTION 12.1 hereof, this Lease shall continue in full force and effect without
reduction or abatement of Charges. The award made in connection therewith, in
respect only of Retail Space: (a) shall be paid to Tenant and included in
Adjusted Gross Revenues if such act is equivalent to a temporary Taking; and (b)
shall not included in Adjusted Gross Revenues if such act is equivalent to a
permanent Taking, in which event such award shall be used as provided in SECTION
12.3 hereof.
SECTION 12.7 SETTLEMENT; COMPROMISE. Landlord shall not settle or
compromise any Taking or other governmental action creating a right to
compensation in Tenant as provided in this ARTICLE XII, and any such right to
settle or compromise shall be solely exercisable by Tenant or a Recognized
Mortgagee.
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ARTICLE XIII
ASSIGNMENT, SUBLETTING AND TRANSFER
SECTION 13.1 TRANSFERS GENERALLY.
(a) TRANSFERS BY TENANT. Except as otherwise provided herein, Tenant
shall not, without the prior written consent of Landlord, which consent may be
withheld by Landlord in its sole discretion, assign, mortgage, encumber or
transfer its interest in this Lease or any of Tenant's rights or Obligations
hereunder, by Tenant's action, by operation of law or otherwise, nor sublet, or
permit the subletting of, the Property or any portion thereof, nor enter into
any franchise, concession, license or other occupancy agreement, or grant any
franchise, concession, license or other occupancy rights with respect to the
Property or any portion thereof (any of the foregoing, a "TRANSFER").
Notwithstanding the foregoing, Tenant may, subject to the provisions of this
ARTICLE XIII:
(i) mortgage its interest in the Lease and the leasehold
estate in the Property created hereby to one or more Recognized Mortgagees in
accordance with ARTICLE XXXI hereof;
(ii) at any time, make a Transfer to a Permitted Developer
(including, without limitation, a deemed Transfer pursuant to SECTION 13.1(b)
hereof);
(iii) on and after the Substantial Completion Date, make a
Transfer to any Permitted Transferee;
(iv) on and after the Substantial Completion Date, Transfer
interests in Tenant for the purpose of obtaining financing for the Project;
(v) sublet portions of the Property in accordance with SECTION
13.2 hereof;
(vi) effectuate a condominium conversion and take all
necessary actions associated therewith in accordance with ARTICLE XXXII hereof;
(vii) make a Transfer to any Permitted Transferee prior to
Commencement of Construction of Tenant's Construction Work; PROVIDED that (A)
the Third Non-Delivery Event shall have occurred and (B) Tenant complies with
the requirements of SECTION 13.1(h) and 13.1(i) hereof; and
(viii) make any Transfer expressly permitted by, and in
accordance with the terms of, the Recognition Agreement (Public Parties).
(b) EQUITY INTEREST TRANSFERS. For purposes of this SECTION 13.1:
(i) the issuance, assignment, transfer or other disposition of any direct or
indirect equity interest in Tenant (whether stock, partnership interests,
interests in a limited liability company or otherwise) to any Person or group of
related Persons, whether in a single transaction or a series of related or
unrelated transactions, in such quantities that after such issuance, assignment,
transfer or other disposition Control of Tenant, directly or indirectly, shall
have changed, shall be deemed a Transfer; (ii) the entering into by Tenant of a
take-over agreement shall be deemed a Transfer; and (iii) any Person or legal
representative of Tenant to whom Tenant's interest under this Lease or the
applicable Sublease passes by operation of law, or otherwise, shall be bound by
the provisions of this ARTICLE XIII. Notwithstanding the foregoing, a transfer
of shares of any entity which holds an interest in Tenant by
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Persons other than those deemed "insiders" within the meaning of the Securities
Exchange Act of 1934, as amended, which transfer of shares is effected through
the "over-the-counter market" or through any recognized stock exchange, shall
not be deemed a Transfer.
(c) DOCUMENTATION. Tenant shall, at the written request of Landlord,
promptly submit to Landlord such further documentation as Landlord may
reasonably request with respect to any Transfer hereunder which does not require
Landlord's prior written consent and to evidence Tenant's compliance with the
provisions of this SECTION 13.1.
(d) EQUITABLE RELIEF. Tenant hereby acknowledges that Landlord may
suffer irreparable harm by reason of a breach or threatened breach of the
provisions of this ARTICLE XIII, and, accordingly, in addition to any other
remedy that Landlord may have under this Lease or as may be permitted by
applicable law, Tenant agrees with Landlord that the seeking of injunctive
relief is an appropriate remedy for such breach or threatened breach by Tenant.
(e) TRANSFERS VOID. Any Transfer by Tenant or other party in
contravention of this ARTICLE XIII shall be void and of no effect.
(f) NOTICE TO LANDLORD. In respect of any proposed Transfer that is
subject to Landlord's approval, Tenant shall give written notice thereof to
Landlord, which notice shall set forth the name of the proposed transferee and
such other information as is reasonably requested by Landlord so as to determine
that the proposed Transfer is permitted hereunder.
(g) OTHER CONDITIONS. Notwithstanding any provision of this ARTICLE
XIII to the contrary, Tenant shall not make any Transfer unless: (i) at the time
of such proposed Transfer, a Default (noticed to Tenant as required hereunder
and uncured) with respect to any monetary or material non-monetary obligation
under this Lease shall not have occurred and be continuing; PROVIDED, HOWEVER,
that Tenant may make a Transfer to a Permitted Developer during the continuance
of a Default, but no such Transfer shall relieve such Permitted Developer from
all liabilities of Tenant under this Lease with respect to such Default; and
(ii) Tenant shall reimburse Landlord for all reasonable out-of-pocket costs and
expenses incurred by Landlord, including reasonable legal fees and
disbursements, in connection with its examination and review of such proposed
Transfer.
(h) If Tenant intends to pursue a Transfer pursuant to SECTION
13.1(a)(vii) hereof, Tenant shall give Landlord notice of such intent. Tenant's
notice shall set forth the material business terms by which it intends to make a
Transfer. Delivery of such notice to Landlord shall be followed by the following
actions:
(i) within ten (10) Business Days of the end of each calendar
quarter thereafter, Tenant shall submit to Landlord a status report with respect
to its efforts to make such Transfer (such status report including, without
limitation, a list of all possible transferees identified by Tenant along with
such additional information or documents reasonably required by Landlord to
determine if such possible transferees qualify as Permitted Transferees); and
(ii) within ten (10) Business Days of Tenant agreeing to the
material terms of a Transfer pursuant to SECTION 13.1(a)(vii) hereof, but in no
event less than sixty (60) days prior to the closing date of such proposed
Transfer, Tenant shall give notice to Landlord of such intent to Transfer (such
notice including, without limitation, all the material terms of the proposed
Transfer);
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Tenant shall also promptly deliver to Landlord any additional information or
documents reasonably requested by Landlord within ten (10) Business Days after
receiving Tenant's notice under this SECTION 13.1(h)(ii).
(i) Upon any Transfer pursuant to SECTION 13.1(a)(vii) hereof:
(i) if the Excess Consideration for such Transfer is an amount
that is less than 15% of Tenant's Transfer Basis, then Tenant shall pay to
Landlord 15% of the Excess Consideration received by Tenant for such Transfer
if, as and when the corresponding consideration is actually received by Tenant
(i.e., in the case of any deferred payments, if, as and when such payments are
received by Tenant); or
(ii) if the Excess Consideration for such Transfer is an
amount that is equal to or greater than 15% of Tenant's Transfer Basis, then
Tenant shall pay to Landlord 20% of the Excess Consideration received by Tenant
for such Transfer if, as and when the corresponding consideration is actually
received by Tenant (i.e., in the case of any deferred payments, if, as and when
such payments are received by Tenant).
(iii) For the purposes of this SECTION 13.1(i), "EXCESS
CONSIDERATION" means the total proceeds received by Tenant in respect of such
Transfer minus, to the extent unreimbursed, (A) the then-aggregate amount of
Site Acquisition Costs, (B) all then-accrued Public Party Expenses, (C) all
then-accrued Ongoing Predelivery Costs paid by Tenant, (D) Tenant's
architectural and other consulting fees directly related to the Project, (E)
brokerage fees paid in respect of the Project Documents and such Transfer, (F)
reasonable attorneys fees and expenses paid in respect of the Project Documents
and such Transfer, (G) any transfer taxes paid in respect of the Project
Documents and such Transfer, (H) Letter of Credit maintenance costs, and (I)
interest (at the ESAC Interest Rate (as defined in the Site 8 South LADA)) on
all then unreimbursed Site Acquisition Costs (clauses (A) through (H) of this
SECTION 13.1(i)(iii), together "TENANT'S TRANSFER BASIS").
SECTION 13.2 SUBLEASING.
(a) CONDITIONS TO SUBLEASE. The following conditions shall apply to
any Sublease for the occupancy of space in the New Building:
(i) Except in the event that NYTC or its Control Affiliates
are occupants in the NYTC Component, the space to be subleased is in the FC
Component and the proposed Subtenant is NYTC or its Control Affiliate pursuant
to the NYTC Form Sublease, no monetary or material non-monetary Default and no
Event of Default shall then exist;
(ii) the Sublease shall specifically provide that the Sublease
will be subject and subordinate to this Lease and to all matters to which this
Lease is subject and subordinate, and that in the event of any conflict between
this Lease and the Sublease, this Lease will be controlling;
(iii) no Sublease for Retail Space or the Common Elements
Leaseable Space shall be for a purpose other than actual occupancy by the named
Subtenant or any affiliates thereof or for the occupancy of concessionaires or
licensees thereunder; PROVIDED, HOWEVER, nothing in the foregoing shall prohibit
underletting by such named Subtenant, pursuant to Subleases that comply with
this Lease after a reasonable period of occupancy by such named Subtenant;
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(iv) each Sublease shall (A) specifically require that
Subtenant shall comply with the provisions of ARTICLE IX of this Lease as those
provisions pertain to Subtenant's plans and specifications, (B) recite that it
is for a Permitted Use and that the Subtenant agrees to be bound by the DUO, (C)
contain a specific acknowledgment that such Subtenant has received a copy of and
reviewed this Lease and the DUO and (D) with respect to a Sublease for Retail
Space, shall incorporate in full the provisions of SECTION 3.13 hereof to the
extent applicable to such Subtenant, including the rights and obligations of
such Subtenant and Landlord (and the Comptroller) in respect of such Subtenant's
books of record and accounts;
(v) the proposed Subtenant (and the Principals thereof if such
proposed Subtenant is not publicly held) is not a Prohibited Person;
(vi) the subletting shall end no later than one (1) day before
the Scheduled Expiration Date of this Lease; and
(vii) no Sublease of Common Elements (as defined in the
Severance Subleases) shall be permitted except in accordance with this ARTICLE
XIII and ARTICLE XXXIV hereof.
(b) NONDISTURBANCE AGREEMENT. So long as Tenant is not then in
monetary or material non-monetary Default hereunder, at the request of Tenant,
Landlord shall enter into a nondisturbance, subordination and attornment
agreement substantially in the form of EXHIBIT P attached hereto (a
"NONDISTURBANCE AGREEMENT") with each proposed Subtenant under a proposed
Sublease with Tenant of all or any portion of the Property which meets the
conditions set forth in clauses (i) or (ii) below, as applicable, and each of
clauses (iii) through (vii) below.
(i) As to proposed Subtenants of Retail Space or the Common
Elements Leaseable Space, as applicable:
(A) the proposed Subtenant is of sufficient financial
condition to perform the obligations under the proposed Sublease, taking into
account any security deposit posted by the proposed Subtenant, and Landlord
shall have been furnished with evidence reasonably satisfactory to Landlord of
such financial condition, and
(B) (1) the Rentable Square Feet of Retail Space or the
Roof Top Garden Space, as applicable demised by such Sublease is 10,000 or more,
or
(2) [a] the Rentable Square Feet demised by such
Sublease is 5,000 or more, but less than 10,000, and [b] the Subtenant has
expended or is obligated to expend at least $100.00 (Adjusted for Inflation from
the Commencement Date) per square foot (exclusive of any allowance provided by
the applicable landlord with respect to such improvements) on such Subtenant's
initial Construction Work, or
(3) [a] the Rentable Square Feet demised by such
Sublease is 2,500 or more, but less than 5,000 and [b] the Subtenant has
expended or is obligated to expend at least $200.00 (Adjusted for Inflation from
the Commencement Date) per square foot (exclusive of any allowance provided by
the applicable landlord with respect to such improvements) on such Subtenant's
initial Construction Work.
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(ii) As to proposed Subtenants of Office Space:
(A) if NYTC or its Control Affiliates are occupants in
the NYTC Component, the subleased Office Space is in the FC Component and the
proposed Subtenant is NYTC pursuant to the form of NYTC Sublease substantially
as set forth in EXHIBIT Q attached hereto (the "NYTC FORM SUBLEASE"); or
(B) in all circumstances not covered by clause (ii)(A)
of this SECTION 13.2(b), (1) the space demised by such Sublease is one-half of
one full floor of Office Space or more (PROVIDED, HOWEVER, that, with respect to
a proposed sublease of less than a full floor of Office Space, Landlord's
obligation to enter into a Nondisturbance Agreement pursuant to this SECTION
13.2(b) shall apply only if Tenant shall supply to Landlord, together with
Tenant's Sublet Notice, evidence reasonably satisfactory to Landlord, that the
space to be leased shall be regular in shape, reasonably accessible in a
customary manner, rented at not less than fair market value and otherwise on
terms that are commercially reasonable and customary in respect of similarly
situated tenants of space of the size and quality to be demised under the
proposed Sublease), and (2) the proposed Subtenant is of sufficient financial
condition to perform the obligations under the proposed Sublease, taking into
account any security deposit posted by the proposed Subtenant, and Landlord
shall have been furnished with evidence reasonably satisfactory to Landlord of
such financial condition. For the purposes of this clause (ii)(B), evidence of
"fair market value" and "commercially reasonable and customary" terms may be
provided by the opinion of two (2) or more disinterested real estate
professionals, each having at least ten (10) years of experience in valuing or
leasing commercial real estate in midtown Manhattan).
(iii) The proposed Subtenant is not a Related Entity of Tenant
(except as permitted in clause (ii)(A) of this SECTION 13.2(b)).
(iv) The proposed Subtenant (and the Principals thereof if
such proposed Subtenant is not publicly held) is not a Prohibited Person.
(v) The proposed Sublease shall provide for no decrease in the
amount of rent payable thereunder over the term of such Sublease except for
customary abatements and offsets of rent.
(vi) Except in respect of a proposed Sublease to NYTC or a
Control Affiliate of NYTC of Office Space in the FC Component pursuant to a
proposed Sublease substantially in the form of the NYTC Form Sublease, none of
(A) the demise of the Demised Space (including any expansion space) under such
Sublease, nor (B) the exclusive or prohibited use provisions thereof, conflict
with [1] the demise under or [2] the exclusive or prohibited use provisions of,
any other Sublease, and Tenant shall deliver to Landlord a certification to such
effect signed by a Qualified Certifying Party of Tenant.
(vii) Except in respect of a proposed Sublease to NYTC or a
Control Affiliate of NYTC of Office Space in the FC Component pursuant to a
proposed Sublease substantially in the form of the NYTC Form Sublease, and
subject to clauses (i) and (ii) above, as applicable, the proposed Sublease
contains terms that are commercially reasonable and customary in respect of
similarly situated tenants of space of the size and quality to be demised under
the proposed Sublease, and the rent and other amounts owed thereunder constitute
not less than fair rental value for the space to be demised thereunder (for the
purposes of this clause (vii), evidence of
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"commercially reasonable and customary" terms and "fair market value" may be
provided by the opinion of two (2) or more disinterested real estate
professionals, each having at least ten (10) years of experience in valuing or
leasing commercial real estate in midtown Manhattan).
For any Sublease by Tenant for which Tenant requests that Landlord
enter into a Nondisturbance Agreement, Tenant shall give written notice thereof
to Landlord ("TENANT'S SUBLET NOTICE") accompanied by a copy of the Sublease as
fully executed or in executable form and such information as Landlord may
require to determine whether the proposed Subtenant is a Prohibited Person.
Tenant's Sublet Notice shall contain the following information: the name of the
proposed Subtenant, the portion of the Property to be sublet, the proposed term
of the Sublease (including the effective date thereof), the proposed Sublease
rental and such financial and other background information with respect to the
proposed Subtenant as is reasonably sufficient to allow Landlord to assess the
financial condition, relevant experience, and all other material economic terms
of the proposed Sublease (but only to the extent the same are conditions under
this SECTION 13.2(b) to Landlord's obligation to enter into a Nondisturbance
Agreement). Landlord shall reasonably cooperate with Tenant after receiving
Tenant's Sublet Notice to expedite the granting of the applicable Nondisturbance
Agreement. Disputes regarding this SECTION 13.2(b), may be referred to
arbitration pursuant to SECTION 16.3 hereof.
(c) SUBTENANT ATTORNMENT. Subject to any applicable Nondisturbance
Agreement, every subletting hereunder is subject to the express condition, and
by accepting a Sublease hereunder of all or any portion of the Property each
Subtenant shall be conclusively deemed to have agreed, that if this Lease should
be terminated prior to the Scheduled Expiration Date or if Landlord should
succeed to Tenant's estate in the Property, then, at Landlord's election, to be
exercised in Landlord's sole judgment and discretion, the Subtenant shall attorn
to and recognize Landlord as the Subtenant's landlord under the Sublease,
PROVIDED that Landlord shall not (i) be liable for any act or omission or
negligence of Tenant under such Sublease, (ii) be subject to any counterclaim,
offset or defense which theretofore accrued to such Subtenant against Tenant,
(iii) be bound by any modification or amendment of such Sublease (unless such
modification or amendment shall have been approved in writing by Landlord), (iv)
be bound by any payment of rent or additional rent for more than one (1) month
in advance (unless actually received by Landlord), (v) be obligated to perform
any Construction Work in the Demised Space, (vi) in the event of a Casualty, be
obligated to repair or restore the Property or any portion thereof, (vii) in the
event of a partial Taking, be obligated to repair or restore the Property or any
part thereof (except that, in the event that Landlord receives Insurance
Proceeds and determines not to restore in such circumstances, the Subtenant can
terminate its Sublease), (viii) be obligated to make any payment to such
Subtenant (other than any overpayment of rent made to Landlord), or (viii) be
bound by any obligations which Landlord lacks the capacity or reasonable ability
to perform. The Subtenant shall promptly execute and deliver any instrument
Landlord may reasonably request to evidence such attornment. With respect to any
Sublease for which Landlord has entered into a Nondisturbance Agreement, the
foregoing provisions of this SECTION 13.2(c) shall be superseded by such
Nondisturbance Agreement. Upon such a termination of this Lease, Tenant shall
pay over to Landlord all sums held by Tenant for the benefit of Subtenants or as
security under the provisions of then existing Subleases except if such
termination of this Lease results from Tenant's exercise of the Purchase Option.
(d) SUBLEASE RENT REQUIREMENTS. Each permitted Sublease hereunder
shall require the Subtenant thereunder to make, subject to the rights of any
Recognized Mortgagee, all payments of rents, additional rents and other sums of
money to Landlord upon the occurrence of a monetary or material nonmonetary
Event of Default hereunder and notice from Landlord, and
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Landlord shall apply the said payments made to it, first, to retain all amounts
that are due and payable to Landlord pursuant to this Lease, and second, to pay
to Tenant all remaining amounts.
(e) ENFORCEMENT OF SUBLEASES. Tenant shall diligently, continuously
and in good faith, and in accordance with commercially reasonable practices,
enforce the provisions of each Sublease, so that each Subtenant at all times
remains in compliance with the DUO and permits no acts or omissions that
adversely affect any Structural Component. If the breach of a Sublease by the
Subtenant thereunder constitutes a material violation of the DUO or any other
aspect of this Lease in respect of Structural Components, Tenant shall promptly
commence and diligently prosecute any and all appropriate legal proceedings
necessary to cause such Subtenant to cure such breach.
SECTION 13.3 ASSIGNMENTS.
(a) ASSIGNEE OBLIGATED. Each and every assignee of this Lease,
whether or not approved by Landlord and whether as assignee or as successor in
interest to Tenant named herein or any subsequent assignee, including any
purchaser of the Lease under a foreclosure of any Mortgage or other lien on this
Lease, shall, in the case of an assignee of the Lease, immediately be and become
and remain liable, for the payment of the Charges and other sums payable under
this Lease, and for the due performance of all of Tenant's Obligations under
this Lease, in each case to the extent arising from and after the effective date
of such assignment to the full end of this Lease, and each and every provision
of this Lease applicable to Tenant shall also apply to and bind every such
assignee and purchaser with the same force and effect as though such assignee or
purchaser were Tenant named in this Lease. No Transfer to such assignee or to
such purchaser shall be binding upon Landlord unless such assignee or purchaser
shall deliver to Landlord a recordable instrument (i) agreeing to indemnify
Landlord from and against any Claims for brokerage commissions, any Claims
derived from Landlord's granting its consent to such assignment in accordance
with the terms hereof and any other Claims not derived from Landlord's actions
arising out of such assignment (PROVIDED, HOWEVER, that this subclause (i) shall
not apply with respect to a Transfer to a Recognized Mortgagee pursuant to a
foreclosure of the applicable Recognized Mortgage) and (ii) subject to ARTICLE
XXXI hereof assuming the obligations of Tenant hereunder by said assignee or
purchaser to such effect, but the failure or refusal of such assignee or
purchaser to deliver such instrument shall not release or discharge such
assignee or purchaser from its Obligations as above set forth.
(b) RELEASE OF ASSIGNOR. Upon an assignment of this Lease in
accordance with this ARTICLE XIII, the assignor shall have no further
Obligations arising after the effective date of such assignment and Landlord
shall confirm such release in a recordable instrument promptly delivered to
Tenant (but the failure of Landlord to deliver such confirmation shall not
prevent such release from becoming effective); PROVIDED, HOWEVER, the foregoing
release shall not relieve assignor from any obligation accruing prior to the
date of such assignment.
SECTION 13.4 COLLECT CHARGES FROM ASSIGNEE, SUBTENANT. If this Lease
is assigned, whether or not in violation of the provisions of this Lease,
Landlord may and is hereby empowered, subject to the rights of any Recognized
Mortgagee, to collect the Charges and other sums payable to Landlord hereunder
from the assignee and to enforce the Obligations of Tenant hereunder against
such assignee. If the Property or any part thereof is sublet or is used by
anyone other than Tenant, whether or not in violation of this Lease, Landlord
may, after an Event of Default by Tenant and expiration of Tenant's time to cure
such Event of Default, if any, collect rent from the Subtenant or occupant. In
either event, Landlord may apply the net amount collected to the Charges and
other sums herein reserved or provided for, but no such assignment or subletting
or collection
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nor any action to enforce the provisions of this Lease against any such assignee
or Subtenant shall be deemed: (a) a waiver of the covenant herein against
Transfer; (b) an acceptance of the assignee or Subtenant as a tenant under this
Lease; or (c) a release of Tenant from the further performance of its
Obligations hereunder.
SECTION 13.5 NO RELIEF. Notwithstanding any provision to the
contrary in this Lease and except as set forth in SECTION 13.3(b) hereof, the
making of any Transfer, in whole or in part, whether or not with the consent of
Landlord, shall not operate to relieve Tenant herein named from its Obligations
under this Lease. In the event of any such permitted Transfer, except as
provided in SECTION 13.3(b) hereof, Tenant herein named shall remain fully
responsible and liable for the prompt payment of all Charges and other sums due
hereunder and for the due performance and observance of all of Tenant's
Obligations under this Lease, to the full end of this Lease, whether or not
there shall have been any prior termination of this Lease by summary proceedings
or otherwise. Each permitted Sublease shall expressly be made subject to the
provisions of this Lease and no permitted Transfer shall in any manner affect or
reduce any of the obligations of Tenant hereunder.
SECTION 13.6 CONSENT. Any consent by Landlord herein contained or
hereafter given to any Transfer shall be held to apply only to the specific
Transfer hereby or thereby approved. No such consent shall be construed as a
waiver of the duty of Tenant, or its successors or assigns, to obtain from
Landlord a consent to any other or subsequent Transfer or as a modification or
limitation of the right of Landlord with respect to the foregoing covenant by
Tenant.
SECTION 13.7 COSTS AND EXPENSES. Subject to SECTION 13.1(g) hereof,
Tenant covenants and agrees to pay all reasonable out-of-pocket costs and
expenses (including reasonable attorneys' fees and disbursements) incurred in
connection with or arising out of the making of any Transfer, including costs
related to Landlord's review of any proposed Transfer and the documentation in
connection therewith. Tenant agrees to pay any federal, state or local excise,
transfer, recording or other tax or fee imposed upon or applicable to any such
Transfer, and to indemnify Landlord from and against any such cost or expense.
Tenant further agrees that any consent of Landlord required hereunder may be
conditioned upon receipt by Landlord of reasonable evidence of the payment of
any such cost or expense. The Obligations of Tenant under this SECTION 13.7 (and
all other obligations expressly stated to survive this Lease) shall survive the
expiration or earlier termination of this Lease.
SECTION 13.8 PROHIBITED PERSONS. (a) Notwithstanding the foregoing
provisions, in no event shall Tenant be permitted to make a Transfer to a
Prohibited Person, nor shall any other Subtenant be permitted to assign its
Sublease or sublet or otherwise grant occupancy rights with respect to its
Demised Space or any portion thereof to a Prohibited Person.
(b) PROCEDURE FOR DETERMINING PROHIBITED PERSON STATUS. If Tenant
seeks to determine whether any Person subject to the restrictions in this Lease
regarding Prohibited Persons is a Prohibited Person, Tenant may submit to
Landlord the name of such Person and, except with respect to any Person that is
publicly held, the name of each Principal of such Person, together with such
completed questionnaires or forms as are standard for Landlord, the City or
NYCEDC to request. Notwithstanding anything to the contrary contained in this
Lease, any provision in this Lease prohibiting a Person from being a Prohibited
Person shall also apply to the Principals of such Person unless such Person is a
publicly traded entity. Within fifteen (15) Business Days after receipt of all
such names and fully-completed questionnaires or forms, as applicable, Landlord
shall notify Tenant of Landlord's determination, which determination shall be
limited to whether such Person
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(and any Principals thereof) is a Prohibited Person; PROVIDED, HOWEVER, that
Landlord will confirm whether any Person is a Prohibited Person promptly after
receiving all of the information described in this SECTION 13.8(b). If Landlord
fails to so notify Tenant within such fifteen-Business-Day period, then such
Person shall be deemed not to be a Prohibited Person; PROVIDED, HOWEVER, with
respect to any proposed assignee of this Lease or any Sublease or any proposed
Subtenant of the Property or any portion thereof; the following shall apply
instead: If Landlord fails to so notify Tenant within such fifteen-Business-Day
period, Tenant shall have the right to give Landlord a reminder notice, which
reminder notice shall contain the following caption in bold and capitalized
type:
YOU SHALL BE DEEMED TO HAVE DETERMINED THAT _________ IS NOT A PROHIBITED
PERSON IF YOU FAIL TO NOTIFY TENANT OF WHETHER SUCH PERSON IS A PROHIBITED
PERSON WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS
NOTICE.
If Landlord fails to notify Tenant of whether such Person is a Prohibited Person
within ten (10) Business Days after its receipt of such reminder notice, then
such Person shall be deemed not to be a Prohibited Person.
SECTION 13.9 CONSTITUTIVE DOCUMENTS. Upon request by Landlord,
Tenant shall deliver to Landlord any Constitutive Documents and any replacement,
amendment, modification or termination (any such act, a "MODIFICATION") of any
Constitutive Documents to the extent reflecting any Transfer, together with such
other information and evidence as shall be reasonably necessary and reasonably
satisfactory to Landlord to confirm the composition and identity of Tenant and
compliance with the requirements of this ARTICLE XIII. Tenant shall also deliver
a certification by a Qualified Certifying Party of Tenant stating that nothing
Tenant has not shown to Landlord will render the information that Tenant has
shown to Landlord inaccurate or misleading.
SECTION 13.10 PERMITTED DISPOSITION.
(a) INDICTED PARTY. If any grand jury impaneled by any federal or
state court files an indictment with such court charging Tenant or any Principal
of Tenant (such indicted Person, the "INDICTED PARTY") with having committed an
intentional felony in connection with the Project, then Landlord shall convene a
hearing (the "HEARING") before a panel of three persons consisting of (i) the
City's Deputy Mayor for Finance and Economic Development, or a successor in
function designated by the Mayor of the City, (ii) the President of NYCEDC, or a
successor in function designated by the Mayor of the City, and (iii) the
Corporation Counsel of the City, or their respective duly authorized designees
who shall be disinterested senior officials of their respective department or
NYCEDC, as the case may be (the "HEARING OFFICERS").
(b) HEARING. The Hearing shall be held upon not less than fifteen
(15) Business Days prior written notice to the Indicted Party and Tenant for the
purpose of determining whether it is in the best interest of the City to require
the Indicted Party to make a Permitted Disposition of its interest in this Lease
or in Tenant, as the case may be, and, if the Indicted Party is a Principal of
Tenant, resign from any directorship or office held by the Indicted Party in
Tenant. At the Hearing, Tenant and the Indicted Party shall each have the
opportunity to be represented by counsel and to make a presentation to the
Hearing Officers orally and in writing. The Hearing Officers shall consider and
address in reaching their determination (i) whether there is a direct nexus
between the conduct charged and this Lease, (ii) the deleterious effect, if any,
which a Permitted Disposition of
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the Indicted Party's interest in this Lease or in Tenant, as the case may be,
would have on the economic development interests of the City which this Lease is
intended to promote and the deleterious effect, if any, such a Permitted
Disposition would have on Tenant as a whole and (iii) any other relevant
matters. The Hearing Officers shall render a decision in writing within
twenty-three (23) Business Days after the last day of the Hearing and such
decision shall set forth in reasonable detail the findings of the Hearing
Officers. Landlord shall deliver a true copy of such decision to Tenant and the
Indicted Party within four (4) Business Days after the date thereof. Such
decision shall be final and subject to review by appropriate lawful means,
unless (A) the indictment is amended in any material respect or (B) a new or
superseding indictment is filed, the basis of which is materially different from
the indictment as to which the Hearing has been held, in which case a new
Hearing may be held. If the Hearing Officers decide by a majority vote that it
is in the best interest of the City to require a Permitted Disposition by the
Indicted Party, (1) the Indicted Party (if the Indicted Party is a Principal of
Tenant) shall resign from any directorship or office held by the Indicted Party
in Tenant within seven (7) Business Days after the date a true copy of such
decision is delivered to it and (2) the Indicted Party shall make a Permitted
Disposition of its interest in this Lease or in Tenant, as the case may be,
within six (6) months after the date a true copy of such decision is delivered
to it. If the Permitted Disposition is an Equity Interest Disposition or
Assignment, the Indicted Party may receive the consideration for such Equity
Interest Disposition or Assignment in installment payments, provided that such
consideration (other than interest thereon) shall be for a sum certain and
provided further that, except as otherwise provided below, following such Equity
Interest Disposition or Assignment, the Indicted Party shall have no further
interest in this Lease or Tenant, as the case may be, or in any profits
therefrom. If the Hearing Officers do not determine by a majority vote that it
is in the best interest of the City to require a Permitted Disposition by the
Indicted Party, then neither the indictment nor any conviction arising therefrom
shall have any effect upon this Lease or the rights or obligations of the
parties hereunder or thereunder.
(c) DEFAULT. Any failure of (i) the Indicted Party to make a
Permitted Disposition of its interest in this Lease or Tenant, as the case may
be, and (if the Indicted Party is a Principal of Tenant) to resign from
directorships or offices, as provided above, or (ii) the Person acting as a
trustee to make a Permitted Disposition of the Indicted Party's interest in this
Lease or in Tenant, as the case may be, following a Conviction, within the time
and in the manner provided hereunder, shall be deemed to be an Event of Default
by Tenant hereunder.
(d) PERMITTED DISPOSITION. "PERMITTED DISPOSITION" means any of the
following (the choice among which, to the extent applicable, shall be at
Tenant's option): (i) the Assignment or Equity Interest Disposition of the
Indicted Party's interest in this Lease or Tenant, as the case may be, to any
Person who is (A) not a Prohibited Person, (B) not a Related Entity or affiliate
of the Indicted Party and (C) satisfactory to Landlord, applying the provisions
of SECTION 13.2 hereof; and to the holder of the Recognized Mortgage most senior
in lien (if required by the terms of such Recognized Mortgage); (ii) if the
Indicted Party is not Tenant, the Equity Interest Disposition (or other transfer
or relinquishment) of the Indicted Party's interest in Tenant, to Tenant, any
other partner(s) of Tenant or any other owners of direct or indirect ownership
interests in Tenant; (iii) the giving of the Indicted Party's interest in this
Lease or Tenant, as the case may be, to a Person (other than a Related Entity or
an affiliate of the Indicted Party) who is acting in a fiduciary capacity as an
independent trustee for the benefit of the Indicted Party for the purpose of
actively managing this Lease or the Indicted Party's interest in Tenant, as the
case may be, or (iv) a combination of two or more of the actions described in
clauses (i), (ii) and (iii) above with respect to portions of the Indicted
Party's interest that constitute, in the aggregate, the Indicted Party's entire
interest. The trustee
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agreement between the Indicted Party and the trustee contemplated by clause
(iii) of the immediately preceding sentence shall be reasonably satisfactory to
Landlord as well as to the holder of the Recognized Mortgage most senior in lien
(if required by the terms of Recognized Mortgage). The trust agreement shall
provide as follows:
(1) if (x) the Indicted Party is found not guilty
of the felony for which it is indicted or (y) the felony charges against such
Indicted Party are dismissed or changed or reduced to charges that do not
constitute an intentional felony, then the trustee shall give back the Indicted
Party's interest in Tenant or in this Lease to the Indicted Party, and the
Indicted Party shall have the right to be a director and hold office in Tenant;
(2) if (x) the Indicted Party is found guilty of
the felony for which it is indicted and such verdict is affirmed by the court
having ultimate jurisdiction to hear any appeal of such conviction or the period
of appeal expires or the Indicted Party waives any right to appeal such
determination or (y) the Indicted Party pleads guilty to the felony for which it
is indicted or another intentional felony (as to which a Hearing is held and a
determination made that a Permitted Disposition by the Indicted Party is in the
best interest of the City) (either (x) or (y) above, a "CONVICTION"), then the
trustee shall assign this Lease or make a sale of the Indicted Party's interest
in Tenant, as the case may be, within six (6) months after the date of the
Conviction to a Person or Persons permitted under clause(s) (i) and (ii) above;
and
(3) during the pendency of any such trust, the
Indicted Party shall exercise no control over any portion of the Property or
Tenant, as the case may be, but may make contributions to the Property or
Tenant, as the case may be, and receive distributions therefrom. Landlord shall
be deemed to have determined that a Person is satisfactory to Landlord under
clause (i) above if Landlord shall not have delivered notice to Tenant that the
proposed Person to whom the Permitted Disposition is to be made is
unsatisfactory with forty-five (45) days after Tenant makes a written request
accompanied by such financial and biographical information and other
documentation as Landlord may reasonably require in making the determination.
Neither the giving of the Indicted Party's interest in this Lease or Tenant, as
the case may be, to a Trustee, nor the giving back by a Trustee to the Indicted
Party of such interest, shall constitute an Assignment or Equity Interest
Disposition. No Permitted Disposition which complies with the requirements of
this SECTION 13.10(d)(3) shall constitute a default on the part of Tenant under
this Lease.
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ARTICLE XIV
DEFAULT PROVISIONS
SECTION 14.1 CONDITIONS OF LIMITATION. (a) This Lease and the term
and estate hereby granted are subject to the limitation that whenever an Event
of Default shall occur, regardless of and notwithstanding the fact that Landlord
has or may have some other remedy under this Lease or by virtue hereof, or in
law or in equity, Landlord may, subject to SECTION 14.1(b) hereof, give to
Tenant a Termination Notice and, upon the giving of the Termination Notice, this
Lease and the term and estate hereby granted shall expire and terminate upon the
day so specified in the Termination Notice as fully and completely and with the
same force and effect as if the day so specified were the Scheduled Expiration
Date and all rights of Tenant under this Lease shall expire and terminate, but
Tenant shall remain liable for damages as hereinafter provided. From and after
the date upon which Landlord shall be entitled to give a Termination Notice,
Landlord, without further notice, may reenter, possess and repossess itself of
the Property as set forth in SECTION 23.2 hereof.
(b) The parties hereto acknowledge and agree that the occurrence of
a Default hereunder shall cause irreparable harm to Landlord and to the 00xx
Xxxxxx Project. In recognition of such harm to Landlord and the 00xx Xxxxxx
Project, and in consideration for Landlord's election to invoke such remedy,
Landlord may elect, in Landlord's sole discretion, to forego (but only until,
with respect to each such Default, receipt by Tenant of the notice described in
SECTION 14.1(b)(iii) hereof) the remedies set forth in SECTIONS 14.1(a) and
14.3(a) hereof; and in lieu thereof to elect that the following payments be made
by Tenant:
(i) In respect of any Default pursuant to SECTION 14.2(a)
hereof, Tenant shall pay to Landlord a sum in the amount of $1,000 per day
(Adjusted for Inflation upon the Substantial Completion Date and on every fifth
annual anniversary thereof) from Tenant's receipt of a First Default Notice
until the date such Default is remedied; and
(ii) In respect of any Default pursuant to SECTIONS 14.2(b),
14.2(c) and 14.2(d) hereof, Tenant shall pay to Landlord a sum in the amount of
$2,000 per day (Adjusted for Inflation upon the Substantial Completion Date and
on every fifth annual anniversary thereof) from Tenant's receipt of a First
Default Notice hereof until the date such Default is remedied; PROVIDED,
HOWEVER, that for so long as Tenant shall not have received First Default
Notices regarding any two (2) or more Defaults (it being understood that, if a
Default is later determined not to have occurred, such Default shall not qualify
as one of the two (2) or more Defaults under this provision) within the
preceding twelve (12) month period (A) the amounts described in this SECTION
14.1(b)(ii) shall not begin to accrue against Tenant unless and until the grace
period provided in SECTION 14.2(b), 14.2(c) or 14.2(d) hereof, as applicable,
has expired, and (B) in the event that Tenant cures such underlying Default
prior to the expiration of any grace period provided in SECTION 14.2(b), 14.2(c)
or 14.2(d) hereof, any such amount payable under this SECTION 14.1(b)(ii) shall
be waived by Landlord and not imposed against Tenant.
(iii) Landlord may elect, at any time after Landlord's
election to receive any of the payments described in clause (i) or (ii) of this
SECTION 14.1(b), upon delivery to Tenant of another First Default Notice
(thereupon reinitiating the relevant cure periods), to pursue any of the
remedies otherwise available under this Lease with respect to the applicable
Default. In such event, the respective amounts described in this SECTION 14.1(b)
shall immediately cease to accrue, with respect to all such Defaults, as of the
date Landlord makes an election to pursue any other remedy, it being understood
that, as to amounts accrued prior to such election, (A) such amounts shall
continue
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to be owing and (B) Landlord shall have all rights and remedies under this Lease
in respect to Tenant's failure to pay such accrued sums. It is further
acknowledged and agreed that Landlord may, at a later date, again forego the
remedies set forth in SECTION 14.1(a) and 14.3(a) hereof, and again seek payment
from Tenant pursuant to and in accordance with this SECTION 14.1(b) upon
delivery to Tenant of another First Default Notice (thereupon reinitiating the
relevant cure periods).
SECTION 14.2 EVENTS OF DEFAULT. An "EVENT OF DEFAULT" shall have
occurred (in each case, upon the occurrence of the following (x) Tenant
receiving notice (it being agreed that in the event Landlord is barred (by
automatic stay or court order) from giving any notice referred to in this
SECTION 14.2 by reason of or in connection with the bankruptcy or insolvency of
Tenant or proceedings in respect thereof, such notice shall be deemed
automatically waived by Tenant for all purposes of this Lease) from Landlord (a
"FIRST DEFAULT NOTICE") substantially in the form of EXHIBIT R attached hereto
stating that Tenant is in Default hereunder and stating the period, if any. set
forth in the following subsections of this SECTION 14.2, during which Tenant
must cure such Default and (y) Tenant receiving, at any time after the cure
period described in the relevant First Default Notice shall have elapsed without
Tenant having cured the delineated Default, a notice from Landlord,
substantially in the form of EXHIBIT S attached hereto, indicating that if,
within five (5) Business Days after receipt of such second notice, the Default
in question has not been cured to Landlord's satisfaction, an Event of Default
shall have occurred; any time after such five (5) Business Day period, Landlord
may, but is not obligated to, send a notice to Tenant (the "TERMINATION
NOTICE"), specifying a day that the term of this Lease shall end), after any of
the following have occurred (Landlord's right to invoke its remedies hereunder
in respect of any such Event of Default being subject to suspension pursuant to
SECTION 14.1(b) hereof):
(a) whenever Tenant shall default in the payment of any installment
of Charges on any day upon which the same is required to be paid, and any such
default shall continue for five (5) Business Days after Landlord shall have
delivered to Tenant a First Default Notice; or
(b) whenever Tenant shall fail to comply with Tenant's Obligations
to maintain adequate insurance in respect of the Property as required pursuant
to ARTICLE X hereof, and Tenant shall fail to remedy the same within seven (7)
Business Days after Landlord shall have given Tenant a First Default Notice; or
(c) whenever Tenant shall do, or permit anything to be done, whether
by action or inaction, contrary to any of Tenant's Obligations under this Lease
(except (i) as otherwise provided in this SECTION 14.2 and (ii) in respect of
the operation of the Public Amenity, Landlord's sole remedy for Tenant's failure
to operate the Public Amenity in compliance with SECTION 30.4(d) hereof shall be
as set forth in SECTION 30.4 hereof), and Tenant shall fail to remedy the same
within thirty (30) days after Landlord shall have given Tenant a First Default
Notice, unless the remedying thereof requires work to be done, action to be
taken, or conditions to be satisfied, which cannot, by their nature, reasonably
be performed, done or satisfied by Tenant within such 30-day period (it being
agreed that Landlord may, at a commercially-reasonable cost (to be paid by
Tenant), retain a disinterested, third-party consultant to oversee the action to
be taken to cure the underlying Default by Tenant or Tenant's designees during
such extended period, and to advise Landlord as to the necessity of and diligent
prosecution of such actions during such extension; while such consultant's
advice to Landlord shall not be binding on Tenant, it is understood that such
advice may be relied upon by Landlord in Landlord's determination of the
reasonableness and duration of any extension under this SECTION 14.2(c)), in
which case no Event of Default shall be deemed to exist as long as
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Tenant, within such 30-day period, has commenced and thereafter diligently and
continuously prosecutes to completion all steps necessary to remedy the same: or
(d) if any of the representations made by Tenant in SECTION 30.1(a)
hereof are proven to have been false or incorrect in any material respect as of
the date made and if, within thirty (30) days after Tenant's receipt of a First
Default Notice in respect thereto, Tenant fails to rectify the state of facts
giving rise to such false or incorrect representation, provided that no Event of
Default shall be deemed to exist (i) if such a state of facts cannot, by its
nature, reasonably be rectified within such thirty 30-day period, so long as
Tenant has commenced rectifying such state of facts within such thirty 30-day
period and shall be diligently and continuously proceeding to rectify such state
of facts or (ii) if the only loss or damage Landlord has sustained or incurred
can be cured by the payment of a sum of money and Tenant has made such payment;
or
(e) whenever an involuntary petition shall be filed against Tenant
under any bankruptcy or insolvency law or under the reorganization provisions
of any law of like import. or a receiver of Tenant or of or for the property of
Tenant shall be appointed without the acquiescence of Tenant, or whenever this
Lease or the estate hereby granted or the unexpired balance of this Lease would,
by operation of law or otherwise, except for this provision, devolve upon or
pass to any Person other than Tenant or as provided in this Lease, and such
situation under this SECTION 14.2(e) shall continue and shall remain
undischarged or unstayed for an aggregate period of one hundred twenty (120)
days (whether or not consecutive) or shall not be remedied by Tenant within one
hundred twenty (120) days; or
(f) if final, non-appealable judgment for the payment of money shall
be rendered against Tenant, and (i) such final judgment shall be for an amount
greater than or equal to $25,000,000 and Tenant shall not discharge said
judgment or cause it to be discharged (by bonding or otherwise) within sixty
(60) days from the entry thereof or (ii) if Tenant shall appeal from such
judgment or from the order, decree or process upon which or pursuant to which
such judgment was entered and shall secure a stay of execution pending such
appeal, within sixty (60) days after such appeal shall be decided or such stay
removed; or
(g) if Tenant shall fail to Commence Construction of Tenant's
Construction Work by the Fixed Construction Commencement Date, as the same may
be extended by Unavoidable Delays; or
(h) if Tenant shall fail to Substantially Complete Tenant's
Construction Work by the Fixed Substantial Completion Date, as the same may be
extended by Unavoidable Delays; or
(i) if Tenant shall Commence Construction of Tenant's Construction
Work prior to Tenant's delivery of the Construction Guaranties to Landlord in
accordance with SECTION 6.3(b)(iv) hereof; or
(j) if Tenant shall exercise its right to terminate the Site 8 South
Subway Agreement pursuant to Section 12.A thereof; or
(k) if there shall occur a default on the part of Tenant following
any applicable notice and cure period under the Site 8 South LADA, the Site 8
South Subway Agreement (with respect to Tenant's operation or maintenance
obligations thereunder), or any provision of the Site 8 South Project Agreement
but only with respect to those provisions under which Tenant has
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obligations thereunder (Landlord acknowledging that no other default of Tenant
under any other Project Document that does not otherwise give rise to a Default
hereunder shall be deemed a Default hereunder).
SECTION 14.3 RIGHTS OF LANDLORD.
(a) ENFORCEMENT OF PERFORMANCE. If an Event of Default occurs,
Landlord may elect to proceed by appropriate judicial proceedings, either at law
or in equity, to enforce performance or observance by Tenant of the applicable
provisions of this Lease and/or to recover damages for breach hereof.
(b) PAYMENT OF DAMAGES. It is covenanted and agreed by Tenant that
in the event of termination of this Lease or re-entry by Landlord, under any of
the provisions of this ARTICLE XIV or pursuant to Legal Requirements, by reason
of default hereunder on the part of Tenant, Tenant shall pay Landlord's actual
damages to Landlord, at the election of Landlord.
(c) RECOVERY OF DAMAGES. Landlord shall be entitled to recover from
Tenant each monthly deficiency as the same shall arise and no suit to collect
the amount of the deficiency for any month shall prejudice Landlord's right to
collect the deficiency for any subsequent month by a similar proceeding. Suit or
suits for the recovery of any and all damages, or any installments thereof,
provided for hereunder may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the Scheduled Expiration Date, or under any provisions of
law, or had Landlord not re-entered the Property.
(d) NO LIMIT. Nothing herein contained shall be construed as
limiting or precluding the recovery by Landlord against Tenant of any sums or
damages to which Landlord may lawfully be entitled in any case other than those
particularly provided for above (other than consequential damages, which are
waived by Tenant and Landlord in respect of all matters under this Lease).
(e) CONSTRUCTION GUARANTY; COLLATERAL ASSIGNMENT. Subject to the
rights of all Recognized Mortgagees, upon the occurrence of an Event of Default,
Landlord shall have the right to exercise its rights under the Construction
Guaranties and any Collateral Assignments to the extent that the same are then
in effect.
(f) FUNDS HELD BY DEPOSITARY. If this Lease terminates as a result
of one or more Events of Default, any funds held by Depositary in respect solely
of this Lease or the Property shall, subject to the rights of any Subtenants
with respect to which Landlord has entered into a Nondisturbance Agreement, be
paid to Landlord, which it may keep as liquidated damages free of any claim by
Tenant, or any Person claiming by, under or through Tenant.
(g) PERCENTAGE RENT CALCULATION. The average annual Percentage Rent
paid or payable by Tenant during the Stabilized Lease Years immediately
preceding such termination or reentry (such average calculated by increasing the
Percentage Rent for each applicable year by the Discount Rate applied from the
date such rent was paid in full to the date such average is determined), shall,
for purposes of calculating Charges under this SECTION 14.3, be deemed to be the
Percentage Rent which would be payable by Tenant for each Lease Year during the
balance of the original term. As used in this SECTION 14.3(g), "STABILIZED LEASE
YEAR" shall mean each full Lease Year commencing not less than twelve (12)
months following the Substantial Completion Date,
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excluding any Lease Year all or any part of which falls within the period
commencing upon the occurrence of a significant casualty or Taking and ending
twelve (12) months after the Substantial Completion Date following such casualty
or Taking. For purposes of calculating the deemed Percentage Rent pursuant to
this SECTION 14.3(g), the number of Stabilized Lease Years shall be the lesser
of ten (10) or the actual number of Stabilized Lease Years preceding such
termination or reentry.
(h) PLANS AND SPECIFICATIONS. Upon the occurrence of an Event of
Default and termination of this Lease, Tenant's rights to the Approved Schematic
Design Plans, the Design Development Plans and the Final Plans and
Specifications for the Property shall be deemed automatically assigned to
Landlord, without cost, subject, however, to any rights of any Recognized
Mortgagee to such plans and specifications.
(i) ASSIGNMENT OF CONSTRUCTION AGREEMENTS. Upon termination of this
Lease by reason of the occurrence of an Event of Default, at the request of
Landlord and subject to the rights, if any, of any Recognized Mortgagee, Tenant
shall assign to Landlord, without cost, and Landlord shall assume, all of
Tenant's interest in any or all agreements with respect to any Tenant's
Construction Work or any Restoration, Condemnation Restoration or Alterations in
or to the Property or any portion thereof which are not then subject to any
Collateral Assignment. Upon the request of Landlord, the respective contractors,
materialmen and suppliers who are parties to any such agreements shall, subject
to the rights of all Recognized Mortgagees, attorn to Landlord and any
agreements entered into between Tenant and such parties shall specifically
provide for such attornment upon Landlord's request.
(j) ASSIGNMENT OF RIGHT TO EXCESS SITE ACQUISITION COSTS
REIMBURSEMENT. Upon termination of this Lease by reason of the occurrence of an
Event of Default, at the request of Landlord, Tenant shall assign to Landlord,
without cost, and Landlord shall assume, all of Tenant's interest in any right
to reimbursement of Excess Site Acquisition Costs.
SECTION 14.4 WAIVER OF RIGHT OF REDEMPTION. Tenant, for Tenant and
on behalf of any and all Persons claiming through or under Tenant, including
creditors of all kinds, does hereby waive and surrender all right and privilege
which they or any of them might have under or by reason of any present or future
law, to redeem the Property or to have a continuance of this Lease for the term
hereby demised after being dispossessed or ejected therefrom by process of law
or under the terms of this Lease or after the termination of this Lease as
herein provided. Nothing in the foregoing portions of this SECTION 14.4 shall
affect the rights of any Recognized Mortgagees under ARTICLE XXXI hereby.
SECTION 14.5 NO WAIVER. Failure of either party hereto to declare
any default immediately upon its occurrence or delay in taking any action in
connection with such default shall not waive such default but such party shall
have the right to declare any such default at any time thereafter. After an
Event of Default, any amounts paid by Tenant to Landlord may be applied by
Landlord, in its sole discretion, to any items then owing by Tenant to Landlord
under this Lease. Receipt of a partial payment shall not be deemed to be an
accord and satisfaction or waiver of the failure to make full payment.
SECTION 14.6 REMEDIES UNDER BANKRUPTCY AND INSOLVENCY CODES. If an
order for relief is entered or if any stay of proceeding or other act becomes
effective in favor of Tenant or Tenant's interest in this Lease in any
proceeding commenced by or against Tenant under the present
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or any future United States Bankruptcy Code or in a proceeding which is
commenced by or against Tenant seeking a reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
other present or future applicable federal, state or other bankruptcy or
insolvency statute or law, Landlord shall be entitled to invoke any and all
rights and remedies available to it under such bankruptcy or insolvency code,
statute or law of this Lease, including such rights and remedies as may be
necessary to adequately protect Landlord's right, title and interest in and to
the Property or any part thereof and adequately assure the complete and
continuous future performance of Tenant's Obligations under this Lease. Adequate
protection of Landlord's right, title and interest in and to the Property, and
adequate assurance of the complete and continuous future performance of Tenant's
Obligations under this Lease, shall include all of the following requirements:
(a) that Tenant shall comply with all of its Obligations under this
Lease;
(b) that Tenant shall continue to use the Property only in the
manner permitted by this Lease; and
(c) that if Tenant's trustee, Tenant or Tenant as
debtor-in-possession assumes this Lease and proposes to assign it (pursuant to
Title 11 U.S. Section 365, as it may be amended) to any Person who has made a
bona fide offer therefor, the notice of such proposed Assignment, giving (i) the
name and address of such Person, (ii) all of the terms and conditions of such
offer, and (iii) the adequate assurance to be provided Landlord to assure such
Person's future performance under this Lease, including the assurances referred
to in Title 11 U.S.C. Section 365[b](3), as it may be amended, and such other
assurances as Landlord may reasonably require, shall be given to Landlord by the
trustee, Tenant or Tenant as debtor-in-possession of such offer, not later than
twenty (20) days before the date that the trustee, Tenant or Tenant as
debtor-in-possession shall make application to a court of competent jurisdiction
for authority and approval to enter into such Assignment, and Landlord shall
thereupon have the prior right and option, to be exercised by notice to the
trustee, Tenant and Tenant as debtor-in-possession, given at any time before the
effective date of such proposed Assignment, to accept an Assignment of this
Lease upon the same terms and conditions and for the same consideration, if any,
as the bona fide offer made by such Person, less any brokerage commissions which
may be payable out of the consideration to be paid by such Person for the
Assignment of this Lease. Landlord shall have no obligation to pay such
brokerage commissions. If Tenant attempts to arrange such an Assignment of this
Lease, then as an element of the required adequate assurance to Landlord, and as
a further condition to Tenant's right to make such an Assignment, Tenant's
agreement(s) with brokers shall, to Landlord's reasonable satisfaction, provide
that Landlord shall have no obligation to pay a brokerage commission if Landlord
exercises Landlord's rights under this SECTION 14.6.
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ARTICLE XV
LANDLORD'S RIGHT TO PERFORM
Section 15.1 RIGHT TO PERFORM. If Tenant shall fail to pay any
Imposition or Charges or make any other payment required to be made under this
Lease or shall default in the performance of any other Obligations of Tenant
herein contained. Landlord, without being under any obligation to do so and
without thereby waiving such default, may make such payment and/or remedy such
other default for the account and at the expense of Tenant, (a) immediately and
without notice in the case of any failure to pay any Imposition or any other
amount due a third party, if such failure would result in the creation of a lien
on the Property or any part thereof or any loss or impairment of Landlord's
estate hereunder or in and to the Property, or in the case of any failure to
perform any of Tenant's Obligations hereunder which creates an imminent threat
to public health or safety, or (b) in any other case, only after (i) Landlord
shall have notified Tenant once of such default or failure and Tenant shall have
failed to make such payment or remedy such default within the applicable grace
period under this Lease, and (ii) Landlord shall have notified Tenant a second
time and Tenant shall have failed to make such payment or remedy such default
within ten (10) Business Days following such second notice; PROVIDED, HOWEVER,
with respect to any default covered by clause (b) above, Landlord shall not be
entitled to remedy the same if and for so long as Tenant has commenced and
thereafter diligently and with continuity prosecutes to completion all steps
necessary to remedy such default. In furtherance of its rights hereunder, in the
event of an imminent threat to human life or safety, Landlord shall have the
right to enter upon the Property in accordance with SECTION 23.2 hereof,
including for the purpose of making repairs or performing work required of
Tenant hereunder. The limitations imposed by the foregoing provisions of this
SECTION 15.1 on Landlord's right to remedy Tenant's defaults shall not apply to
Landlord's rights to remedy Tenant's failures under the last paragraphs of
SECTIONS 7.3(a) and (b) hereof. Bills for any expenses incurred by Landlord in
connection therewith, and bills for all costs, expenses and disbursements of
every kind and nature whatsoever, including counsel fees, involved in collecting
or endeavoring to collect any Charges or other sums due hereunder, or any part
thereof, or involved in enforcing or endeavoring to enforce any right against
Tenant under or in connection with this Lease, any Sublease or pursuant to law,
including any such cost, expense and disbursement involved in instituting and
prosecuting summary proceedings, as well as bills for any property, material,
labor or services provided, furnished or rendered, or caused to be, by Landlord
to Tenant, with respect to the Property or equipment used in connection
therewith (together with interest at the Interest Rate, from the respective
dates of Landlord's making of each such payment or incurring of each such cost
or expense), may be sent by Landlord to Tenant monthly, or immediately, at
Landlord's option, and shall be due and payable in accordance with the terms of
said bills (or, in the case of payments to reimburse Landlord, within
twenty-three (23) Business Days of demand) and if not paid when due the amount
thereof shall immediately become due and payable as additional rent under this
Lease. The Obligations of Tenant to pay such bills or to reimburse Landlord
under this SECTION 15.1 shall survive the expiration or earlier termination of
this Lease.
SECTION 15.2 ADDITIONAL REMEDIES. The mention herein of any
particular remedy shall not preclude either party hereunder from any other
remedy it might have either in law or in equity. Any right or remedy of such
party in this Lease specified and any other right or remedy that such party may
have at law, in equity or otherwise, upon breach of any of the other party's
Obligations hereunder shall be distinct, separate and cumulative rights or
remedies, and no one of them, whether exercised by Landlord or not, shall be
deemed to be in exclusion of any other.
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SECTION 15.3 STRICT PERFORMANCE. No failure by either party to
insist upon the other party's strict performance of any covenant, agreement,
term or condition of this Lease, or the failure of Landlord to exercise any
right or remedy available to Landlord by reason of a Default or Event of
Default, or the failure of Tenant to exercise any right or remedy available to
Tenant by reason of Landlord's default, and no payment or acceptance of full or
partial Charges during the continuance of any Default or Event of Default,
constitutes a waiver of any such Default or Event of Default or of either
party's right to strict performance of such covenant, agreement, term or
condition.
SECTION 15.4 RIGHT TO ENJOIN DEFAULTS OR THREATENED DEFAULTS. In the
event of any breach or threatened breach by either party of any of the
covenants, agreements, terms or conditions contained in this Lease, the other
party shall be entitled to bring an action to enjoin such breach or threatened
breach or to compel specific performance of any covenant, agreement, term or
condition herein, which right shall be cumulative with such party's other rights
and remedies.
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ARTICLE XVI
ARBITRATION
SECTION 16.1 GENERALLY. Unless otherwise expressly permitted
hereunder, all disputes hereunder to be resolved by arbitration shall be
resolved in accordance with this ARTICLE XVI.
SECTION 16.2 STANDARD ARBITRATION. (a) If either party hereto
desires to invoke the arbitration procedure set forth in this SECTION 16.2, the
party invoking the arbitration procedure shall give a notice (the "ARBITRATION
NOTICE") to the other party stating that the party sending the Arbitration
Notice desires to meet within seven (7) Business Days to attempt to agree on a
single arbitrator (the "ARBITRATOR") to determine the question at issue. The
Arbitrator appointed shall be competent, qualified by training and experience,
disinterested and independent, and an individual having not less than ten (10)
years experience relating to commercial real estate in New York City. If the
parties hereto have not agreed on the Arbitrator within ten (10) Business Days
after the giving of the Arbitration Notice, then either party hereto, on behalf
of both, may apply to the New York City office of the American Arbitration
Association or any organization which is the successor thereto (the "AAA") for
appointment of the Arbitrator, or, if the AAA shall not then exist or shall
fail, refuse or be unable to act such that the Arbitrator is not appointed by
the AAA within twenty-three (23) Business Days after application therefor, then
either party may apply to the presiding Justice of the Appellate Division of the
Supreme Court of the State of New York, First Department (the "COURT"), for the
appointment of the Arbitrator and the other party shall not raise any question
as to the Court's full power and jurisdiction to entertain the application and
make the appointment. The date on which the Arbitrator is appointed by the
agreement of the parties, by appointment by the AAA or by appointment by such
court is referred to herein as the "APPOINTMENT DATE". If any Arbitrator
appointed hereunder shall be unwilling or unable, for any reason, to serve, or
continue to serve, a replacement Arbitrator shall be appointed in the same
manner as the original Arbitrator.
(b) The arbitration shall be conducted in accordance with the then
prevailing commercial arbitration rules of the AAA, modified as follows:
(i) To the extent that the New York State Civil Practice and
Law Rules (the "CPLR"), or any successor statute, imposes requirements different
from those of the AAA in order for the decision of the Arbitrator to be
enforceable in the courts of the State of New York, such requirements shall be
complied with in the arbitration.
(ii) Before hearing any testimony or receiving any evidence,
the Arbitrator shall be sworn by an officer authorized to administer an oath to
hear and decide the controversy faithfully and fairly and a written copy thereof
shall be delivered to Landlord and Tenant.
(iii) Within twenty-three (23) Business Days after the
Appointment Date, the parties hereto shall deliver to the Arbitrator two (2)
copies of their respective written determinations of the appropriate resolution
of the issue in question (each, a "DETERMINATION"), together with such
affidavits, appraisals, reports and other written evidence relating thereto as
the submitting party deems appropriate. After the submission of any
Determination, the submitting party may not make any additions to or deletions
from, or otherwise change, such Determination or the affidavits, appraisals,
reports and other written evidence delivered therewith. If either party fails to
so deliver its Determination within such time period, such party shall be deemed
to have irrevocably waived its right to deliver a Determination and the
Arbitrator, without holding a hearing, shall accept the
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Determination of the submitting party as the appropriate resolution of the issue
in question. If each party submits a Determination with respect to the
appropriate resolution of the issue in question. within the thirty-day period
described above, the Arbitrator shall, promptly after its receipt of the second
Determination, deliver a copy of each party's Determination to the other party.
(iv) Not more than twenty-three (23) Business Days after the
earlier to occur of (A) the expiration of the twenty three Business Day period
provided for in clause (iii) above or (B) the Arbitrator's receipt of both of
the Determinations from the parties (such earlier date is referred to herein as
the "SUBMISSION DATE"), and upon not less than seven (7) Business Days' notice
to the parties, the Arbitrator may hold one or more hearings with respect to the
determination of the appropriate resolution of the issue in question. The
hearings shall be held in the Borough of Manhattan at such location and time as
shall be specified by the Arbitrator. Each of the parties shall be entitled to
present all relevant evidence and to cross-examine witnesses at the hearings.
The Arbitrator shall have the authority to adjourn any hearing to such later
date as the Arbitrator shall specify, PROVIDED that in all events all hearings
with respect to the determination of the appropriate resolution of the issue in
question shall be concluded not later than sixty (60) days after the Submission
Date.
(v) The Arbitrator shall be instructed, and shall be empowered
only, to select one of the Determinations which the Arbitrator believes is the
more appropriate resolution of the issue at hand. Without limiting the
generality of the foregoing, in rendering her or his decision, the Arbitrator
shall not add to, subtract from, or otherwise modify the provisions of this
Lease or either of the Determinations.
(vi) The Arbitrator shall render his or her determination as
to the selection of a Determination in a signed and acknowledged written
instrument, original counterparts of which shall be sent simultaneously to the
parties hereto, within seven (7) Business Days after the earlier to occur of (A)
his or her determination of the appropriate resolution of the issue in question
pursuant to clause (iii) above or (B) the conclusion of the hearing(s) referred
to in clause (iv) of this subsection.
(c) The arbitration decision, determined as provided in this SECTION
16.2, shall be conclusive and binding on the parties, shall constitute an
"award" by the Arbitrator within the meaning of the AAA rules and applicable law
and judgment may be entered thereon in any court of competent jurisdiction.
(d) Each party shall pay its own fees and expenses relating to the
arbitration described herein (including, without limitation, the fees and
expenses of its counsel and of experts and witnesses retained or called by it).
Each party shall pay one-half of the fees and expenses of the AAA and of the
Arbitrator; provided that if either party fails to submit a Determination within
the period provided therefor, such non-submitting party shall pay all of such
fees and expenses.
(e) Time shall be of the essence as to all obligations of Landlord
and Tenant set forth in this SECTION 16.2.
SECTION 16.3 EXPEDITED ARBITRATION. (a) If either party hereto
desires to invoke the arbitration procedure set forth in this SECTION 16.3. the
party invoking the arbitration procedure shall give an Arbitration Notice to the
other party stating that the party sending the Arbitration Notice desires to
meet within three (3) Business Days to attempt to agree on an Arbitrator to
determine the question at issue. The Arbitrator appointed shall be competent,
qualified by training and experience,
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disinterested and independent, and an individual having not less than ten (10)
years experience relating to commercial real estate in New York City. If the
parties hereto have not agreed on the Arbitrator within three (3) Business Days
after the giving of the Arbitration Notice, then either party hereto, on behalf
of both, may apply to the AAA for appointment of the Arbitrator, or, if the AAA
shall not then exist or shall fail, refuse or be unable to act such that the
Arbitrator is not appointed by the AAA within twenty (20) Business Days after
application therefor. then either party may apply to the Court, for the
appointment of the Arbitrator and the other party shall not raise any question
as to the Court's full power and jurisdiction to entertain the application and
make the appointment. The date on which the Arbitrator is appointed by the
agreement of the parties, by appointment by the AAA or by appointment by such
court is referred to herein as the "APPOINTMENT DATE". If any Arbitrator
appointed hereunder shall be unwilling or unable, for any reason, to serve, or
continue to serve, a replacement Arbitrator shall be appointed in the same
manner as the original Arbitrator.
(b) The arbitration shall be conducted in accordance with the then
prevailing commercial arbitration rules of the AAA for expedited arbitration,
modified as follows:
(i) To the extent that the CPLR, or any successor statute,
imposes requirements different from those of the AAA in order for the decision
of the Arbitrator to be enforceable in the courts of the State of New York, such
requirements shall be complied with in the arbitration.
(ii) Before hearing any testimony or receiving any evidence,
the Arbitrator shall be sworn by an officer authorized to administer an oath to
hear and decide the controversy faithfully and fairly and a written copy thereof
shall be delivered to Landlord and Tenant.
(iii) Within ten (10) Business Days after the Appointment
Date, the parties hereto shall deliver to the Arbitrator two (2) copies of their
respective Determinations, together with such affidavits, appraisals, reports
and other written evidence relating thereto as the submitting party deems
appropriate. Such ten Business-Day period may not be extended by the Arbitrator.
After the submission of any Determination, the submitting party may not make any
additions to or deletions from, or otherwise change, such Determination or the
affidavits, appraisals, reports and other written evidence delivered therewith.
If either party fails to so deliver its Determination within such time period,
such party shall be deemed to have irrevocably waived its right to deliver a
Determination and the Arbitrator, without holding a hearing, shall accept the
Determination of the submitting party as the appropriate resolution of the issue
in question. If each party submits a Determination with respect to the
appropriate resolution of the issue in question, within the ten Business-Day
period described above, the Arbitrator shall, promptly after its receipt of the
second Determination, deliver a copy of each party's Determination to the other
party.
(iv) Not more than ten (10) Business Days after the earlier to
occur of (A) the expiration of the ten Business-Day period provided for in
clause (iii) above or (B) the Submission Date, and upon not less than three (3)
Business Days' notice to the parties, the Arbitrator may hold one hearing with
respect to the determination of the appropriate resolution of the issue in
question. The hearing shall be held in the Borough of Manhattan at such location
and time as shall be specified by the Arbitrator. Each of the parties shall be
entitled to present all relevant evidence and to cross examine witnesses at the
hearing. The Arbitrator shall have the authority to adjourn any hearing to such
later date as the Arbitrator shall specify, PROVIDED that in all events all
hearings with respect to the determination of the appropriate resolution of the
issue in question shall be concluded not later than thirty (30) days after the
Submission Date.
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(v) The Arbitrator shall be instructed, and shall be empowered
only, to select one of the Determinations which the Arbitrator believes is the
more appropriate resolution of the issue at hand. Without limiting the
generality of the foregoing, in rendering her or his decision, the Arbitrator
shall not add to, subtract from, or otherwise modify the provisions of this
Lease or either of the Determinations.
(vi) The Arbitrator shall render his or her determination as
to the selection of a Determination in a signed and acknowledged written
instrument, original counterparts of which shall be sent simultaneously to the
parties hereto, within three (3) Business Days after the earlier to occur of (A)
his or her determination of the appropriate resolution of the issue in question
pursuant to clause (iii) above or (B) the conclusion of the hearing(s) referred
to in clause (iv) of this subsection.
(c) The arbitration decision, determined as provided in this SECTION
16.3. shall be conclusive and binding on the parties, shall constitute an
"award" by the Arbitrator within the meaning of the AAA rules and applicable law
and judgment may be entered thereon in any court of competent jurisdiction.
(d) Each party shall pay its own fees and expenses relating to the
arbitration described herein (including, without limitation, the fees and
expenses of its counsel and of experts and witnesses retained or called by it).
Each party shall pay one-half of the fees and expenses of the AAA and of the
Arbitrator; provided that if either party fails to submit a Determination within
the period provided therefor, such non-submitting party shall pay all of such
fees and expenses.
(e) Time shall be of the essence as to all obligations of Landlord
and Tenant set forth in this SECTION 16.3.
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ARTICLE XVII
INDEMNITY; LIMITATION ON LIABILITY
SECTION 17.1 INDEMNIFICATION BY TENANT. To the fullest extent
permitted by law, Tenant shall indemnify Landlord and all of the other Public
Parties for, and hold Landlord and all of the other Public Parties harmless from
and against, any and all claims that may be imposed upon or incurred by or
asserted against Landlord or any of the other Public Parties by reason of any of
the following, (x) except with respect to (i) actions taken or claimed to have
been taken by, or on behalf of, Landlord with respect to all or any portion of
the Property prior to the delivery of Possession of such portion of the Property
to Tenant, (ii) the physical condition, prior to delivery of Possession thereof
to Tenant, of any Existing Improvements to be demolished, (iii) any claims for
compensation by condemnees as a result of the Condemnation or (iv) any claims by
third parties that relate to the Property and which arose prior to delivery of
Possession of the Property to Tenant, PROVIDED that nothing herein is intended
to qualify or limit in any manner Tenant's obligations under this Lease,
including those pertaining to the period prior to the delivery of Possession, or
(y) unless caused by the gross negligence or intentionally tortious acts of
Landlord, the other Public Parties or their respective agents or employees, or
by the actions of Landlord, the other Public Parties, or their respective agents
or employees in its or their governmental capacity:
(a) any accident, injury to or death of Persons or loss of or damage
to property occurring on or about the Property or as a result of any act or
omission occurring on or with respect to the Property or any other matter or
thing arising out of the use, repair, maintenance, operation or occupation of
the Property, or the use, repair, maintenance, operation and occupation by
Tenant of the streets, sidewalks or service roads, as applicable, adjacent
thereto;
(b) performance of any Construction Work or act done in, on or about
the Property or any part thereof;
(c) any lien or claim that may be alleged to have arisen against or
on the Property, or any lien or claim created or permitted by Tenant or any
Subtenant or any of its or their officers, agents, contractors, servants,
employees, licensees or invitees against any assets of, or funds appropriated
to, Landlord;
(d) any claim for brokerage commissions, fees or other compensation
by any person who alleges to have acted or dealt with Tenant in connection with
this Lease or the transactions contemplated by this Lease or any Transfers;
(e) any failure on the part of Tenant to perform or comply with any
of Tenant's Obligations; and
(f) any failure or alleged failure on the part of Tenant or a
Related Entity to perform or comply with any agreement between Tenant or a
Related Entity and a third party.
Notwithstanding the above, Tenant shall have no duty to indemnify Landlord or
any of the other Public Parties from such Claims to the extent such Claims (1)
are brought to enjoin development of the Project or challenge Landlord's
authority to enter into this Lease (PROVIDED, HOWEVER, the limitation contained
in this clause (1) shall not apply to the extent such Claims are based on
Tenant's negligence, willful misconduct, alleged violation of Legal Requirements
or failure to comply with the terms of this Lease), (2) arise from a failure or
alleged failure on the part of Landlord to perform or
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comply with any agreement between Landlord and a third party not covered by this
Lease, or (3) in respect of SECTIONS 17.1(a) and 17.1(b) hereof, arise prior to
the Delivery Date (PROVIDED, HOWEVER, the limitation contained in this clause
(3) shall not apply to the extent such Claims are based on Tenant's negligence,
willful misconduct, alleged violation of Legal Requirements or failure to comply
with the terms of this Lease).
SECTION 17.2 INDEMNIFICATION GENERALLY.
(a) INDEMNIFIED PARTIES. Wherever in this Lease a party shall be
obligated to indemnify the other party, then such party shall indemnify, defend
and hold harmless the other party and its respective commissioners, members,
directors, officers, agents, employees, partners and/or shareholders
(collectively, the "INDEMNIFIED PARTIES"), to the full extent lawful, from and
against all Claims which shall be paid, incurred, related to or arising from the
indemnified matter. The foregoing indemnification shall be in addition to any
liability which such party may otherwise have. If indemnification were for any
reason not to be available with respect to any matter, the indemnifying party
shall contribute to the settlement, loss or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party, on the one
hand, and the Indemnified Parties, on the other hand, as well as any other
relevant equitable considerations.
(b) PROCEEDINGS. The indemnifying party under this Lease shall
defend the applicable Indemnified Party with counsel reasonably satisfactory to
such Indemnified Party (unless the indemnified Claim is covered by insurance, in
which event counsel shall be attorneys for, or approved by, the insurance
carrier), shall keep the Indemnified Party apprised of all legal proceedings and
shall not enter into any settlement without the Indemnified Party's prior
written consent, which shall not be unreasonably withheld. Promptly after
receipt by the Indemnified Party of notice of any claim or the commencement of
any action or proceeding covered by the indemnity pursuant to this SECTION 17.2,
the Indemnified Party shall notify the indemnifying party in writing of such
claim or the commencement of such action or proceeding.
(c) PAYMENT OF COSTS. Tenant's Obligations with respect to any
matter under this Lease as to which Tenant is indemnifying Landlord shall not be
affected in any way by the absence of insurance coverage, the amount of any
deductible, or by the failure or refusal of any insurance carrier to perform an
obligation on its part under insurance policies procured by or on behalf of
Tenant. Any amounts that become payable by Tenant to Landlord under this Lease
with respect to any such matter and that are not paid within ten (10) Business
Days after demand therefor following payment of such amounts by Landlord shall
bear interest at the Interest Rate from the date of such payment by Landlord.
SECTION 17.3 RECOURSE ONLY TO LANDLORD'S ESTATE IN THE PROPERTY.
Notwithstanding anything to the contrary contained herein, in the event of any
default by Landlord hereunder, Tenant shall look only to Landlord's estate in
the Property (or the proceeds thereof), and no other property or assets of
Landlord or its agents, officers, directors, shareholders, partners or
principals, disclosed or undisclosed, shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Tenant's remedies under or
with respect to this Lease, the relationship of Landlord and Tenant hereunder or
under law or Tenant's use or occupancy of the Property or any other liability of
Landlord to Tenant. Tenant in any event hereby waives any right to collect from
Landlord any indirect, consequential, special or punitive damages whatsoever,
whether or not Landlord was or should have been aware of the probability or
magnitude of such damages, unless a court of competent jurisdiction finally
determines that Landlord has acted in bad faith in
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respect of the claim made against Landlord. Tenant's foregoing waiver
constitutes a material inducement to Landlord to enter into the Project
Documents.
SECTION 17.4 RECOURSE ONLY TO TENANT'S ESTATE IN THE PROPERTY.
Notwithstanding anything to the contrary contained herein, Landlord shall look
only to Tenant's interest in the Property (or the proceeds thereof) and any
funds held by the Depositary pursuant to the terms of this Lease, in the event
of the occurrence of any Event of Default by Tenant hereunder, and no other
property or assets of Tenant or its Principals shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Landlord's
remedies under or with respect to this Lease. The foregoing limitation on
liability shall not be applicable to:
(a) loss or damage suffered by Landlord to the extent of any
insurance proceeds, Adjusted Gross Revenues, rents, condemnation awards,
security deposits, downpayments or trust funds applied by Tenant or its
Principals in violation of applicable law or the provisions of this Lease or
loss or damage suffered by Landlord on account of any criminal acts, fraud or
intentional misrepresentation by Tenant or its Principals;
(b) any loss from damage to the Core and Shell or Tenant Subway
Improvements resulting from intentional waste, the willful destruction, willful
damage by or on behalf of Tenant to the Core and Shell or Tenant Subway
Improvements;
(c) the cost of remediation or removal of Hazardous Materials and
reasonable attorney fees and disbursements and other professional fees incurred
by Landlord in connection with any matter under SECTION 7.8 hereof;
(d) any loss or damage suffered by Landlord in connection with any
claim by Tenant that the relationship of Tenant and Landlord is that of joint
venturers or any other relationship other than that of landlord and tenant;
(e) any loss or damage suffered by Landlord arising from a Transfer
by Tenant to any Prohibited Person;
(f) loss, damage or liability in connection with the Project to the
extent such loss, damage or liability would have been covered by insurance if
Tenant had maintained the insurance policies required to be maintained hereunder
by Tenant; or
(g) Charges accruing after an Event of Default and before any
termination of this Lease by reason of the use or occupancy by Tenant prior to
reentry by Landlord.
Notwithstanding anything to the contrary in the foregoing, Landlord shall not
have recourse to the assets or property of any Principal of Tenant that is an
individual for satisfaction of any claim under this Lease.
SECTION 17.5 SURVIVAL. The provisions of this Article XVII shall
survive the expiration or earlier termination of this Lease.
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ARTICLE XVIII
QUIET ENJOYMENT; TRANSFER OF LANDLORD'S INTEREST
SECTION 18.1 QUIET ENJOYMENT. Landlord covenants that if and so long
as Tenant duly keeps and performs each and every Obligation of Tenant hereunder,
Tenant shall quietly enjoy the Property without hindrance or molestation by
Landlord, subject to the covenants, agreements, terms, provisions and conditions
of this Lease.
SECTION 18.2 TRANSFER OF LANDLORD'S INTEREST. Except as set forth in
this SECTION 18.2, Landlord shall not convey or assign its interest or estate in
this Lease to a third party, other than its right to receive any amounts payable
to Landlord hereunder, and as permitted in SECTIONS 1.01 and 10.09 of the Site 8
South Project Agreement. Landlord may transfer its interest in the Property and
this Lease to any Government Authority PROVIDED, HOWEVER, that no assignment
permitted hereunder shall result in a decrease (other than to a de minimis
extent) in any of Tenant's, FC Members', NYTC Member's, or their Related
Entities' rights or benefits under any of the Project Documents or the XXX
Project Agreement or an increase (other than to a de minimis extent) in
Tenant's, FC Members', NYTC Member's, or their Related Entities' obligations,
liabilities or costs under any of the Project Documents or the XXX Project
Agreement. It is expressly understood and agreed that "Landlord", as used in
this Lease, means only the owner for the time being of the Property and this
Lease, and in the event of the sale, assignment or transfer by such owner of its
or their interest in the Property and in this Lease, such owner shall thereupon
be released and discharged from all of Landlord's Obligations thereafter
accruing; but such Obligations shall be binding upon each new owner of the
Property and this Lease.
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ARTICLE XIX
WAIVER OF JURY TRIAL; COUNTERCLAIMS
SECTION 19.1 WAIVER OF JURY TRIAL. The parties hereto waive a trial
by jury of any and all issues arising in any action or proceeding between them
or their successors or assigns under or connected with this Lease or any of its
provisions or any negotiations in connection therewith or Tenant's use or
occupancy of the Property, except when such action or proceeding arises from
personal injury suffered on or resulting from the Property.
SECTION 19.2 NO COUNTERCLAIMS. Tenant shall not interpose any
counterclaims in a summary proceeding or in any action based on nonpayment by
Tenant of Charges other than compulsory counterclaims.
SECTION 19.3 SURVIVAL. The provisions of this ARTICLE XIX shall
survive the expiration or earlier termination of this Lease.
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ARTICLE XX
NOTICES
SECTION 20.1 NOTICES. Each written notice, demand, request or other
communication required or permitted hereunder shall be in writing and shall be
deemed to have been duly given and received (a) if personally delivered with
proof of delivery thereof (any notice or communication so delivered being deemed
to have been received at the time delivered on a Business Day or, if not a
Business Day, the next succeeding Business Day), or (b) by nationally recognized
overnight courier (any notice or communication so sent being deemed to have been
received on the first succeeding Business Day subsequent to the day so sent),
addressed to the respective parties as follows:
(a) if to Landlord:
42nd St. Development Project, Inc.
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with copies to:
(i) New York City Economic Development Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
(ii) New York City Law Department
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief, Economic Development Division
(iii) Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq. (3578/13)
(iv) Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx, Esq.
(v) New York State Urban Development Corporation
d/b/a Empire State Development Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: 00xx Xxxxxx Development Project, Inc.
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(b) if to Tenant:
The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
AND
c/o Forest City Xxxxxx Companies
Xxx XxxxxXxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
AND
INGREDUS Site 8 South LLC
c/o Clarion Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxxxxx
with copies to:
(vi) The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Director of Real Estate
(vii) INGREDUS Site 8 South LLC
c/o Clarion Partners
000 00xx Xxxxxx, X.X.
Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxxxxx
(viii) Xxxxxxx Berlin Shereff Xxxxxxxx LLP
Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(ix) Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
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(x) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
or to such other address as may be specified by written notice sent in
accordance herewith. No notice, demand, request or other communication hereunder
shall be effective unless given as aforesaid.
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ARTICLE XXI
ESTOPPEL CERTIFICATE
SECTION 21.1 CERTIFICATE OF TENANT. Tenant shall, within ten (10)
Business Days after notice (which notice may not be given more often than three
(3) times in any twelve month period) by Landlord, execute, acknowledge and
deliver to Landlord or to any other Person specified by Landlord, a statement in
writing (which may be relied upon by such Person or by any other Person
designated in such notice) (a) certifying (i) that this Lease is unmodified and
in full force and effect (or if there are modifications, that this Lease, as
modified, is in full force and effect, stating the date of each such
modification and providing a copy thereof, if requested), and (ii) the date to
which each item of Charges payable by Tenant hereunder has been paid, and (b)
stating (i) whether, to the best knowledge of Tenant, any event has occurred
that, with the giving of notice or the passage of time, or both, would
constitute a default by Landlord in the performance of any covenant, agreement,
obligation or condition contained in this Lease, and (ii) whether, to the best
knowledge of Tenant, Landlord is in default in performance of any covenant,
agreement, obligation or condition contained in this Lease, and, if so,
specifying in detail each such default.
SECTION 21.2 CERTIFICATE OF LANDLORD. Landlord shall, within ten
(10) Business Days after notice (which notice may not be given more often than
three (3) times in any twelve-month period) by Tenant or any Recognized
Mortgagee, execute, acknowledge and deliver to Tenant or any Recognized
Mortgagee, or such other Person designated by Tenant or such Recognized
Mortgagee in such notice, a statement in writing (which may be relied upon by
such Person and by current and prospective Recognized Mortgagees, Subtenants and
Assignees (other than Prohibited Persons)): (a) certifying (i) that this Lease
is unmodified and in full force and effect (or if there are modifications, that
this Lease, as modified, is in full force and effect, stating the date of each
such modification and providing a copy thereof, if requested), and (ii) the date
to which each item of Charges payable by Tenant hereunder to Landlord has been
paid; and (b) stating (i) whether, to the best knowledge of Landlord, an Event
of Default has occurred or any event has occurred that, with the giving of
notice or the passage of time, or both, would constitute an Event of Default and
(ii) whether, to the best knowledge of Landlord, a Default has occurred in
Tenant's performance of any covenant, agreement, obligation or condition
contained in this Lease, and, if so, specifying, in detail, each such Default or
Event of Default.
SECTION 21.3 CONSTRUCTION CERTIFICATE. Upon satisfaction of the
conditions required with respect to the delivery of Possession, the Commencement
of Construction of the New Building, or the Substantial Completion of the New
Building, Landlord and Tenant shall certify the occurrence of the following and
the date on which each occurred (which certification may be relied upon by
Landlord, Tenant and current and prospective Recognized Mortgagees, Subtenants
and assignees (other than Prohibited Persons)): (a) the delivery of Possession;
(b) the Commencement of Construction of the New Building; and (c) the
Substantial Completion of the New Building (the parties agreeing that any
certification of Landlord regarding Substantial Completion shall be based on an
Architect's Certification, prepared by an Architect approved by Landlord, of
same (which Architect's Certification shall be based on the certifying
architect's independent assessment and not on any representation made by Tenant
or its affiliates and shall be deemed approved by Landlord unless disputed
within ten (10) Business Days of receipt thereof by Landlord).
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ARTICLE XXII
SEVERABILITY
SECTION 22.1 SEVERABILITY. If any term or provision of this Lease or
the application thereof to any Person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to Persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
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ARTICLE XXIII
END OF TERM; TITLE TO IMPROVEMENTS
SECTION 23.1 SURRENDER.
(a) Upon the expiration or earlier termination of this Lease other
than by virtue of Tenant's exercise of the Purchase Option, or upon the re-entry
of Landlord upon the Property pursuant to SECTION 23.2 hereof, Tenant shall,
without any payment to or allowance by Landlord whatsoever, peaceably and
quietly leave, surrender and deliver unto Landlord the Property, and any
Improvements and Equipment constructed therein or located thereon from time to
time, in good order, condition and repair, reasonable wear and tear excepted,
free and clear of (i) all lettings and occupancies, other than Subleases
expiring after the Expiration Date with respect to which Landlord has entered
into a Nondisturbance Agreement, and (ii) all agreements, easements,
encumbrances or other liens, other than the Permitted Encumbrances and those
created or consented to in writing by Landlord. If the Property is not so
surrendered at the end of this Lease, Tenant shall compensate Landlord for all
damages which Landlord shall suffer by reason thereof (but excluding
consequential damages), and shall indemnify Landlord from and against all Claims
resulting from or arising in connection with Tenant's failure to surrender the
Property, including any Claim made by any succeeding tenant against Landlord
founded upon delay by Landlord in delivering possession of the Property to such
succeeding tenant, so far as such delay is occasioned by the failure of Tenant
to surrender the Property. Notwithstanding anything to the contrary contained in
this Lease, upon the expiration or earlier termination of this Lease other than
by virtue of Tenant's exercise of the Purchase Option, Tenant shall not be
obligated to remove Equipment or to restore the Property to its condition prior
to any Alterations, but Tenant shall, upon Landlord's request, be required to
remove any personal property of Tenant or any Subtenant, and any Subtenant shall
be entitled to remove any Improvement or Equipment made or installed by or on
behalf of such Subtenant (other than a Subtenant that is a Related Entity of
Tenant) as long as after such removal the Core and Shell (1) remains in working
order, condition and good repair, reasonable wear and tear excepted and (2)
continues to provide all necessary services to the Improvements.
(b) In the event of any surrender in accordance with SECTION 23.1(a)
hereof, Tenant shall deliver to Landlord (i) Tenant's executed counterparts of
all Subleases (if applicable) and any management, service and maintenance
contracts then affecting the Property, nothing herein implying that any such
Subleases or other agreements may encumber the Property after the Expiration
Date, (ii) complete maintenance records for the Property, (iii) all original
licenses and permits then pertaining to the Property to the extent in Tenant's
possession or otherwise available, or if such originals are not in Tenant's
possession or available, true and complete copies thereof certified by a
Qualified Certifying Party of Tenant, (iv) permanent or temporary certificates
of occupancy then in effect for the Improvements (and transfer documents
relating thereto), (v) all warranties and guaranties then in effect which Tenant
has received in connection with any work or services performed or Equipment
installed in the Improvements, (vi) all financial reports, books and records
required by this Lease and any and all other documents of every kind and nature
whatsoever relating to the operation of the Property, to the extent in Tenant's
possession or otherwise obtainable by Tenant upon request, and (vii) all keys to
the Property.
(c) In the event this Lease terminates prior to the Scheduled
Expiration Date, Tenant shall execute and deliver to Landlord such instruments
of surrender, assignment and transfer, as the case may be, as Landlord may deem
reasonably necessary to evidence the same pursuant to SECTION 23.1(b) hereof.
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(d) Except as otherwise provided in SECTIONS 5.2 and 14.3(f) hereof,
any funds held by Depositary, including any Restoration Funds that shall not
have been applied to Restoration, any other Restoration Funds then being held by
Tenant, and any other insurance proceeds or condemnation awards then payable in
respect of a Casualty or condemnation (net, to the extent not otherwise
deducted, of reasonable, actual out-of-pocket costs of collection, if any,
incurred by Tenant), shall be paid to Landlord free and clear of any claim by
Tenant, or any Person claiming by, under or through Tenant, subject, however, to
the rights, if any, of any Recognized Mortgagee or Subtenant with which Landlord
has entered into a Recognized Mortgage or Nondisturbance Agreement, as
applicable. By executing this Lease, Tenant shall be deemed to have agreed,
subject, however, to the rights, if any, of any Subtenant with which Landlord
has entered into a Nondisturbance Agreement, to assign all proceeds and awards,
and the right to receive the same, to Landlord effective as of the Expiration
Date, and Tenant shall, at Landlord's request, execute and deliver to Landlord
such instruments of assignment as Landlord may request (in form reasonably
satisfactory to Landlord) to evidence such assignment. The execution and
delivery of such instruments, however, shall not be required to effect the
assignment of such proceeds or awards to Landlord.
(e) The provisions of this SECTION 23.1 shall survive the expiration
or earlier termination of this Lease.
SECTION 23.2 RE-ENTRY. From and after any date upon which Landlord
shall be entitled to give a Termination Notice, Landlord may, without further
notice, enter upon, re-enter, possess and repossess itself of the Property, by
force, summary proceedings, ejectment or otherwise, and may dispossess and
remove Tenant and all other persons and property from the Property and may have,
hold and enjoy the Property and the right to receive all rental and other income
of and from the same. As used in this Lease the words "enter" and "re-enter" are
not restricted to their technical legal meanings.
SECTION 23.3 REMOVAL OF PROPERTY. Any personal property of Tenant,
any Manager or any Subtenant which shall remain on or in the Property after the
Expiration Date and the removal of Tenant and such Subtenant from the Property,
may, at the option of Landlord, after thirty (30) days prior Notice to Tenant
from Landlord, be deemed to have been abandoned by Tenant, such Manager or such
Subtenant and may either be retained by Landlord as its property or be disposed
of, without accountability, in such manner as Landlord may see fit. However,
Landlord shall also have the right to require Tenant to remove any such personal
property of Tenant, such Manager or such Subtenant at any such time at Tenants
own cost and expense, PROVIDED that Landlord shall give Tenant at least thirty
(30) days prior written notice requesting the removal of any such personal
property of Tenant, such Manager or such Subtenant from the Property. From and
after the Expiration Date, Landlord shall not be responsible for any loss or
damage occurring to any property owned by Tenant, such Manager or any Subtenant.
SECTION 23.4 TITLE TO IMPROVEMENTS. Title to the Existing
Improvements, and title to all Improvements thereafter erected on the Land by or
on behalf of Tenant or any Subtenant pursuant to the applicable provisions of
this Lease or any Sublease, shall remain, and immediately upon erection or
installation thereof on the Land shall become, the property of Landlord.
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ARTICLE XXIV
COVENANTS BINDING
SECTION 24.1 COVENANTS BINDING. The covenants, agreements, terms,
provisions and conditions of this Lease shall be binding upon and inure to the
benefit of the successors and assigns of Landlord and, except as otherwise
provided herein, the successors and assigns of Tenant.
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ARTICLE XXV
ENTIRE AGREEMENT; NO WAIVER
SECTION 25.1 ENTIRE AGREEMENT. This Lease and the Project Documents
contain all the covenants, representations, warranties and conditions made by or
between the parties hereto with respect to the subject matter hereof. This Lease
may not be changed orally but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification or discharge
is sought.
SECTION 25.2 NO WAIVER.
(a) RECEIPT OF CHARGES. The payment or receipt of any amounts due
hereunder from the other party hereto, with knowledge of any breach of this
Lease by such other party or of any default on the part of such other party in
the observance, performance or compliance with any of such other party's
Obligations shall not be deemed to be a waiver of any of the terms, covenants or
conditions of this Lease. In the event that Tenant is in arrears in the payment
of any Charges or other sum payable hereunder, Tenant waives Tenant's right, if
any, to designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items Landlord sees fit irrespective of and notwithstanding any
designation or request by Tenant as to the items against which any such payments
shall be credited.
(b) ENFORCEMENT OF TERMS. No failure on the part of any party
hereunder to enforce any term, covenant or condition herein contained, nor any
waiver of any right hereunder by any party hereunder, unless in writing, shall
discharge or invalidate such term, covenant or condition, or affect the right of
such party to enforce the same in the event of any subsequent breach or default.
The consent of Landlord to any act or matter must be in writing and shall apply
only with respect to the particular act or matter to which such consent is given
and shall not relieve the other party hereunder from the obligation wherever
required under this Lease to obtain the consent of such party to any other act
or matter. The receipt by Landlord of any Charges or any other sum of money or
any other consideration hereunder paid by or on behalf of Tenant after the
termination, in any manner, of this Lease, or after the giving by Landlord of
any notice hereunder to effect such termination, shall not reinstate, continue
or extend the term of this Lease or destroy or in any manner impair the efficacy
of any such notice of termination as may have been given hereunder by Landlord
to Tenant prior to the receipt of any such sum of money or other consideration,
unless so agreed to in writing and signed by Landlord. No act or thing done by
Landlord or any employee, agent or representative of Landlord during the term of
this Lease shall be deemed to be an acceptance of a surrender of the Property,
excepting only an agreement in writing signed by Landlord accepting or agreeing
to accept such a surrender.
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ARTICLE XXVI
NO MERGER
SECTION 26.1 NO MERGER. There shall be no merger of this Lease or of
the leasehold estate hereby created with the fee estate in the Property by
reason of the fact that the same person acquires or holds, directly, this Lease
or the leasehold estate hereby created or any interest herein or in such
leasehold estate as well as the fee estate in the Property or any interest in
such fee estate.
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ARTICLE XXVII
ENCUMBRANCES
SECTION 27.1 ENCUMBRANCES. Tenant will not, without the consent of
Landlord, which consent Landlord may withhold in its sole and absolute
discretion (except in respect of utility or comparable easements necessary for
the day-to-day operation of the Property, in which case Landlord's consent shall
not be unreasonably withheld), impose any restrictive covenants, liens or
encumbrances upon the Property or any part thereof. Nothing in the foregoing
shall restrict Tenant's right to encumber the leasehold estate in the Property
created hereby in accordance with the terms hereof.
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ARTICLE XXVIII
CONSENTS; APPROVALS
SECTION 28.1 REASONABLE STANDARD. Wherever it is specifically
provided in this Lease that Landlord's or Tenant's consent shall not be
unreasonably withheld, Landlord or Tenant, as applicable, must be reasonable in
granting its consent and a response to a request for such consent shall not be
unreasonably delayed or conditioned. If a request is received in writing by
Landlord or Tenant for a consent or approval required under this Lease or for
information to which the party making such request shall be entitled, the party
receiving such request shall act with reasonable promptness thereon and shall
not unreasonably delay notifying the party making such request as to the
granting or withholding of such consent or approval or furnishing to such party
the information requested. Except where it is specifically provided in this
Lease that Landlord's consent shall not be unreasonably withheld, whenever
Landlord's consent or approval shall be required hereunder for any matter, the
decision as to whether or not to consent to or approve the same shall be in the
sole discretion of Landlord.
SECTION 28.2 NO DAMAGES. Tenant hereby waives any claim for damages
against Landlord which it may have based upon any assertion that Landlord has
unreasonably withheld or unreasonably delayed any consent that, pursuant to
specific provisions of this Lease, is not to be unreasonably withheld or
otherwise to act reasonably in the performance of Landlord's Obligations, except
where Landlord has withheld such consent due to Landlord's bad faith or in an
arbitrary and capricious manner (as determined by a court of competent
jurisdiction after all permitted appeals taken). In any such case, Tenant's sole
remedy shall be an action or proceeding to enforce any such provision or for
specific performance, injunction or declaratory judgment. Tenant agrees that if
Tenant shall request such a consent from Landlord and Landlord shall fail or
refuse to give such consent or shall delay the giving of such consent, Tenant
shall not be entitled to any damages for such withholding or delay, except where
Landlord has withheld such consent due to Landlord's bad faith or in an
arbitrary and capricious manner (as determined by a court of competent
jurisdiction after all permitted appeals taken).
SECTION 28.3 DEEMED CONSENT. (a) Except as set forth in SECTION
28.3(b) hereof, whenever it is provided in this Lease that Landlord shall
respond to Tenant's request for Landlord's consent within a specified period of
time, Landlord's consent shall be deemed given if Landlord shall have not
responded to such request within such specified period, provided that Tenant's
request shall contain the following notice in bold and capitalized type:
YOUR CONSENT TO THE [DESCRIBE REQUEST] SHALL BE DEEMED GIVEN IF YOU FAIL
TO RESPOND TO THIS REQUEST WITHIN [SPECIFIED PERIOD] FROM THE DATE OF YOUR
RECEIPT OF THIS NOTICE.
Whenever the period of time for Landlord to respond to Tenant's request for
Landlord's consent is not specified, such period of time shall be deemed to be
twenty-three (23) Business Days from receipt of Tenant's notice requesting such
consent, and Landlord's consent shall be deemed given if Landlord shall have not
responded to such request within such twenty-three Business Day period, provided
that Tenant's request shall contain the aforementioned notice, appropriately
modified. The provisions of this SECTION 28.3(a) shall not apply to consents
covered by SECTION 28.3(b) hereof or to any other provision of this Lease that
specifically provides for additional or other conditions for the granting of
Landlord's deemed consent. Notwithstanding anything to the contrary in the
foregoing, if within the period specified for Landlord to respond to Tenant's
consent request Landlord makes a
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reasonable request to Tenant for additional information regarding the subject
matter of such consent request, the period of time for Landlord to respond to
Tenant's request shall not commence until Landlord receives the requested
information.
(b) With respect to Tenant's requests for Landlord's consents
required under SECTIONS 6.2, 9.2(a) or 13.1 or ARTICLE XXVIII hereof, the
following shall apply: Whenever the period of time for Landlord to respond to
Tenant's request for Landlord's consent is not specified, Tenant's request for
Landlord's consent shall contain the following notice in bold and capitalized
type:
THIS CONSENT REQUEST IS SUBJECT TO THE "DEEMED CONSENT" PROVISIONS OF
SECTION 28.3(B) OF THE LEASE.
If Landlord fails to respond to Tenant's request within twenty-three (23)
Business Days from receipt of Tenant's notice requesting Landlord's consent, or
Landlord fails to make a reasonable request for additional information related
thereto within such thirty-day period and thereafter to respond to such request
within twenty-three (23) Business Days after written submission of such
additional information as Landlord shall have reasonably requested, Tenant shall
have the right to give Landlord a reminder notice, which reminder notice shall
contain the following caption in bold and capitalized type:
YOUR CONSENT TO THE [DESCRIBE REQUEST] SHALL BE DEEMED GIVEN IF YOU FAIL
TO RESPOND TO THIS REQUEST WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF
YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to grant or deny the requested consent within five (5)
Business Days after its receipt of such reminder notice, Landlord's consent
thereof shall be deemed given. Whenever in the above-enumerated provisions of
this Lease the period of time for Landlord to respond to Tenant's request for
Landlord's consent is specified, the foregoing provisions of this SECTION
28.3(b) shall apply, except that all references above to twenty-three (23)
Business Days shall be replaced by the period of time so specified.
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ARTICLE XXIX
NON-DISCRIMINATION AND AFFIRMATIVE ACTION
SECTION 29.1 INCORPORATION BY REFERENCE. The provisions set forth on
EXHIBIT T attached hereto are incorporated herein as if fully set forth herein.
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ARTICLE XXX
REPRESENTATIONS, WARRANTIES AND COVENANTS, AND OTHER AGREEMENTS
SECTION 30.1 REPRESENTATIONS AND WARRANTIES.
(a) TENANT'S REPRESENTATIONS AND WARRANTIES. Tenant represents and
warrants to Landlord that as of the date hereof:
(i) Tenant is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of New York and has
full power and authority to conduct its business as presently conducted and to
enter into this Lease and the terms, provisions, covenants and obligations of
Tenant as set forth in the Lease are legally binding on and enforceable against
Tenant;
(ii) the execution, delivery and performance of this Lease do
not and will not (A) violate or conflict with the Constitutive Documents of
Tenant, (B) violate or conflict with any judgment, decree or order of any court
applicable to or affecting Tenant, (C) breach the provisions of, or constitute a
default under, any contract, agreement, instrument or obligation to which Tenant
is a party or by which Tenant is bound, or (D) violate or conflict with any law
or governmental regulation or permit applicable to Tenant;
(iii) EXHIBIT U attached hereto correctly sets forth the
identity of the members of Tenant and the holders of the direct equity interests
in such partners; none of Tenant's members, partners, shareholders, or members,
partners or shareholders thereof, or officers, are Prohibited Persons; and
(iv) Tenant has made available to Landlord true and complete
copies of the Constitutive Documents, and such Constitutive Documents are in
full force and effect, and have not been replaced, amended, modified or
terminated.
(b) LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord represents
and warrants to Tenant that as of the date hereof Landlord is duly organized and
validly existing under the laws of New York and has full power and authority to
conduct its business as presently conducted and to enter into this Lease and the
terms, provisions, covenants and obligations of Landlord as set forth in the
Lease are legally binding on and enforceable against Landlord;
(c) ACKNOWLEDGEMENT OF NO OTHER REPRESENTATIONS OR WARRANTIES. (i)
Tenant acknowledges that, except for the representations contained in this
Lease, in the other Project Documents and in any other documents executed
contemporaneously with this Lease (A) no representations, statements or
warranties, express or implied, have been made by, or on behalf of, Landlord,
ESDC, NYCEDC or the City with respect to the Property or the transaction
contemplated by this Lease, the status of title to the Property, the physical
condition thereof, the tenants and occupants thereof, the zoning or other laws,
regulations, rules and orders applicable thereto or the use that may be made of
the Property, (B) Tenant has relied on no such other representations, statements
or warranties, and (C) none of Landlord, ESDC, NYCEDC or the City in no event
whatsoever shall be liable for any latent or patent defects in the Property.
(ii) Landlord acknowledges that, except for the
representations and warranties contained in SECTION 30.1(a) hereof, the balance
of the Lease, in the other Project
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Documents and in any other documents executed contemporaneously with this
Lease, (A) no representations, statements or warranties, express or implied,
have been made by, or on behalf of, Tenant with respect to the Property or the
transaction contemplated by this Lease, and (B) Landlord has relied on no such
representations, statements or warranties.
SECTION 30.2 POSSESSION. It is not a condition of this Lease that
Landlord deliver full or partial Possession on the Commencement Date. Landlord
shall have no obligation to deliver Possession prior to Landlord's approval of
the Final Plans and Specifications pursuant to SECTION 6.2(c) hereof.
SECTION 30.3 COVENANTS OF TENANT. In addition to any other covenants
of Tenant set forth in this Lease, Tenant hereby agrees and covenants to make
available to the Public Parties, promptly upon execution thereof but not later
than ten (10) days after execution: (i) any amendments to Tenant's Constitutive
Documents and (ii) any Operative Agreements and any amendments thereto. Subject
to SECTION 32.2 hereof, any amendments to Tenant's Constitutive Documents and
the Operative Agreements shall be subject to review and the reasonable approval
by the Public Parties, within thirty (30) days of the Public Parties' gaining
access thereto, solely to confirm (A) compliance with the transfer provisions
set forth in ARTICLE XIII hereof, (B) the composition and identify of
Tenant, and (C) compliance with SECTIONS 30.1(a)(ii) and 30.1(a)(iv) hereof.
SECTION 30.4 PUBLIC AMENITY. (a) Generally. As an express condition
to the execution of the Project Documents, Tenant agrees (at its sole cost and
expense) to construct, finance, complete, operate and maintain a public amenity
within the New Building that will provide a significant public benefit within
the objectives of the 00xx Xxxxxx Project (the "PUBLIC AMENITY"). Landlord
agrees that the construction, completion, operation and maintenance of the
Public Amenity Space in accordance with the terms and conditions of this SECTION
30.4 shall fulfill Tenant's obligations with respect to the Public Amenity.
Tenant agrees and covenants that Tenant's failure to construct, complete, open
and maintain the Public Amenity during the PA Obligation Term in accordance with
this Lease and the DUO shall be a default hereunder.
(b) DEFINED TERMS.
(i) "AUDITORIUM" means that portion of the New Building
designated as the "Auditorium" on the Schematic Design Plan drawing numbered
A1001 on EXHIBIT 1-1 attached hereto.
(ii) "EVENT" means any date on which a formally scheduled
event takes place in the Auditorium or the Gallery; PROVIDED, HOWEVER, that (A)
any such event utilizing both the Auditorium and the Gallery at the same time
shall constitute one (1) Event and (B) so long as they are not related in
subject matter and not intended to serve the same audience, up to two (2) Events
taking place on the same day shall constitute separate Events.
(iii) "GALLERY" means that portion of the New Building
designated as the "Gallery" on Schematic Design Plan drawing numbered A1001 on
EXHIBIT I-1 attached hereto.
(iv) "NFP EVENT" means an Event: (A) sponsored by, organized
by or primarily serving, a NFP User; and (B) for which Tenant charges not more
than the PA NFP Operating Costs.
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(v) "NFP EVENT SHORTFALL" means, for any PA Year, the positive
difference (if any) between: (A) the number of NFP Events required by SECTION
30.4(d)(i) hereof: and (B) the number of NFP Events actually occurring.
(vi) "NFP USER" means: (A) a public charity organized under
Section 501(c)(3) of the Income Tax Code; and (B) any other bona fide
not-for-profit entity that is approved in advance by Landlord in Landlord's sole
discretion, which approval shall be granted or withheld within five (5) Business
Days of Landlord's receipt of a request for such approval from Tenant (each
entity listed on EXHIBIT V hereof, for so long as such entity remains a public
charity organized under Section 501(c)(3) of the Income Tax Code or a bona fide
not-for-profit entity, is hereby deemed approved by Landlord). Tenant shall make
such request in writing not later than fifteen (15) Business Days prior to the
proposed use by such entity of the Public Amenity Space.
(vii) "PA EFFECTIVE DATE" means the date that is the earlier
to occur of: (A) the PA Opening Date; and (B) the fifteen (15) month anniversary
of the Substantial Completion Date.
(viii) "PA NFP OPERATING COSTS" means the reasonable and
actual operating costs incurred (i.e., not including any xxxx-ups, fees,
overhead charges or other add-ons) by Tenant in respect to an NFP Event,
including, if applicable and provided by Tenant: (A) stagehand labor; (B) the
Pro Rata Cost of a production coordinator; (C) front-of-house labor (e.g.,
ushers, ticket takers, concessionaires); (D) the Pro-Rata Cost of non-routine
maintenance labor (e.g., extra janitors); (E) stage door labor (e.g., security
guard, lobby reception during off hours); (F) utilities (e.g., theatrical
lighting and/or air conditioning); (G) house programs; (H) box office labor; and
(I) production expenses (e.g., rental from of unaffiliated Persons of piano,
sound system, lights, gels, theatrical drapes, microphones, podiums, chairs,
tables).
(ix) "PA OBLIGATION TERM" means the period from the PA
Effective Date through the PA Obligation Termination Date.
(x) "PA OBLIGATION TERMINATION DATE" means, subject to SECTION
30.4(d)(i)(B) hereof; the date that is the last day of the tenth (10th) full
calendar year following the PA Effective Date.
(xi) "PA OPENING DATE" means the first date upon which the
Public Amenity is completed and operating in accordance with Legal Requirements
and this SECTION 30.4 for general use (but not including Tenant's use of the
Public Amenity Space for up to ten (10) single-day events associated with the
inauguration of the New Building or the Public Amenity Space).
(xii) "PA YEAR" means: (A) the period from the PA Effective
Date through December 31 of the calendar year in which the PA Effective Date
occurs (such period, the "PA EFFECTIVENESS STUB PERIOD"); and (B) each calendar
year following the end of the PA Effectiveness Stub Period through the PA
Obligation Termination Date.
(xiii) "PRO RATA COST" means the portion of the cost of the
identified person(s) allocated to the NFP Event on the basis of the amount of
such person's overall time devoted to the NFP Event.
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(xiv) "PUBLIC AMENITY SPACE" means the PA Retail Space, the
Auditorium and the Gallery.
(xv) "VENUE" means either the Auditorium or the Gallery.
(c) PA OPENING. The PA Opening Date shall occur on or prior to the
date that is the fifteen (15) month anniversary of the Substantial Completion
Date.
(d) OPERATING REQUIREMENTS. In additional to any other operating
standards required under this Lease in respect of the New Building (including
without limitation those imposed by Legal Requirements or the DUO), the Public
Amenity shall be operated in accordance with the following provisions:
(i) NFP EVENTS: (A) Subject to clause (B) of this SECTION
30.4(d)(i), at least 104 NFP Events shall occur in the Public Amenity Space each
PA Year, and at least 50% of such NFP Events shall take place (in whole or in
substantial part) in the Auditorium; PROVIDED, HOWEVER, that (1) during the PA
Effectiveness Stub Period, the total NFP Events required shall be the product of
[a] 35 and [b] a fraction, the numerator of which is the number of days in the
PA Effectiveness Stub Period and the denominator of which is 365 and at least
50% of such NFP Events shall take place (in whole or in part) in the Auditorium,
(2) during the first full PA Year, a total of 35 NFP Events shall be required
and at least 50% of such NFP Events shall take place (in whole or in part) in
the Auditorium, and (3) during the second full PA Year, a total of 70 NFP Events
shall be required and at least 50% of such NFP Events shall take place (in whole
or in part) in the Auditorium. NFP Users that are Related Entities of Tenant or
any Subtenant may not account for more than 30% of the NFP Event requirement for
any PA Year.
(B) Notwithstanding any provision of this Lease to the
contrary, in the event that an NFP Event Shortfall shall occur for any PA Year,
then:
(1) if such NFP Event Shortfall is less than or
equal to 10% of the total NFP Event requirement for such PA Year, the number of
Events in such NFP Event Shortfall shall be added to the number of NFP Events
required for the next-occurring PA Year; and
(2) upon the first occurrence of an NFP Event
Shortfall in excess of 10% of the NFP Event requirement for a given PA Year, the
PA Obligation Termination Date shall be extended by two (2) years (such
extension, the "FIRST PA EXTENSION"), during which First PA Extension: (i) at
least 104 NFP Events shall take place in the Public Amenity Space during each
such additional PA Year and at least 50% of such NFP Events shall take place (in
whole or in part) in the Auditorium, (ii) Tenant shall make up any NFP Event
Shortfall; (iii) NFP Users shall be permitted to use the Public Amenity Space
for no charge (including no charge for PA NFP Operating Costs); and (iv) the PA
PILOT Reduction shall be unavailable. In the event that there is an NFP Event
Shortfall at the end of the First PA Extension, the PA Obligation Termination
Date shall be extended by two (2) additional years (such extension, the "SECOND
PA EXTENSION"), during which Second PA Extension: (x) the NFP Event requirement
shall equal the number that is twice such NFP Event Shortfall; (y) NFP Users
shall be permitted to use the Public Amenity Space for no charge (including no
charge for PA NFP Operating Costs) until such NFP Event requirement is
fulfilled; and (z) the PA PILOT Reduction shall be unavailable. In the event
that there is an NFP Event Shortfall at the end of the Second PA Extension,
PILOT on the entire Public Amenity Space shall be
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calculated on the basis of the Retail PILOT Schedule until the number of NFP
Events comprising such NFP Event Shortfall shall have occurred.
(C) Tenant shall use its good faith efforts to make the
Public Amenity Space available for use by NFP Users that primarily serve the
performing arts, such as those NFP Users listed on EXHIBIT V attached hereto,
but Tenant shall have no liability in the event that such NFP Users determine
not to so use the Public Amenity Space. Tenant shall, at least on each January 1
and July 1 during the PA Obligation Term, provide to those NFP Users listed on
EXHIBIT V attached hereto, a list of those dates that the Public Amenity Space
is then available for use by NFP Users in the upcoming six (6) months (i.e.,
those dates for which there are then no confirmed bookings).
(ii) FEES FOR NFP USER USE OF PUBLIC AMENITY SPACE: Tenant
shall charge each NFP User not more than the applicable PA NFP Operating Costs
for such NFP User's use of Public Amenity Space.
(iii) REPORTING REQUIREMENTS: Tenant shall submit a report to
Landlord within thirty (30) days after the end of each PA Year setting forth for
such PA Year: (A) the number of Events; (B) the number of NFP Events; (C) the
portion of the Public Amenity Space (i.e.. Gallery and/or Auditorium) utilized
for each such Event and NFP Event; (D) the sponsor/user and purpose of each such
Event and NFP Event; and (E) the NFP Shortfall, if any.
(e) EFFECT OF PUBLIC AMENITY SPACE ON PILOT.
(i) Tenant shall pay to Landlord full Office PILOT in respect
of the Auditorium and the Gallery, except that during the PA Obligation Term
(but not during the First PA Extension or thereafter) the PILOT for each PILOT
Year shall be reduced by the number (such number, the "PA PILOT REDUCTION")
equal to the product of (1) the PILOT due for the Square Feet comprising such
particular Venue for such PILOT Year MULTIPLIED BY (2) a fraction, the numerator
of which is the number of NFP Events occurring in such Venue during such PILOT
Year, and the denominator of which is 365. It is acknowledged and agreed that a
single NFP Event utilizing both the Auditorium and the Gallery at the same time
would constitute a separate use of each such Venue only for the purpose of
calculating the PA PILOT Reduction.
(ii) For accounting purposes, the Taxable Square Feet of each
of the Auditorium and the Gallery shall be computed separately, and PILOT
calculated in respect of each of the Auditorium and the Gallery shall be based
on such Square Feet.
(iii) Tenant shall pay to Landlord full Retail PILOT in
respect of any PA Retail Space.
SECTION 30.5 OTHER AGREEMENTS.
(a) CONSTRUCTION GUARANTIES. Tenant shall cause each Guarantor that
is required to execute and deliver a Construction Guaranty pursuant to and in
accordance with SECTION 6.3(b) hereof to provide to Landlord each such
fully-executed Construction Guaranty in accordance therewith. Tenant agrees
that, prior to the final completion of the Project, any default of any covenant
of any Guarantor under any Construction Guaranty, or the invalidity of any
Construction Guaranty for any reason, shall be a default hereunder; PROVIDED,
HOWEVER, that for so long as there is
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no default of one Guarantor under a Construction Guaranty, a default of the
other Guarantor shall not be a default of Tenant hereunder.
(b) PROJECT PARTICIPANTS. Tenant covenants to inform Landlord
whenever the identity of a Project Participant is first identified or changes.
All Project Participants shall be subject to the reasonable approval of
Landlord, in accordance with the requirements set forth in this SECTION 30.5(b)
and in ARTICLE I hereof in respect of permissible Project Participants. Tenant
shall not at any time be a Person that is not a Permitted Developer; PROVIDED,
HOWEVER, that Landlord hereby approves Tenant and Tenant's Control Affiliates
(as constituted on the date hereof) as permissible Project Participants.
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ARTICLE XXXI
PERMITTED FINANCING
SECTION 31.1 RECOGNIZED MORTGAGE.
(a) RIGHT OF TENANT. Tenant, from time to time during the term of
this Lease, may make one or more Recognized Mortgages, PROVIDED that:
(i) Tenant or the Recognized Mortgagee shall deliver to
Landlord within seven (7) Business Days after the execution thereof; in the
manner herein provided for the giving of notice to Landlord, a copy of the
mortgage financing commitment and any amendments thereto and a true copy of such
Recognized Mortgage and of any subsequent modification, amendment or assignment
thereof and recorded copies thereof and shall notify Landlord of the address of
the Recognized Mortgagee to which notices may be sent;
(ii) such Recognized Mortgage shall contain provisions
permitting the disposition and application of insurance proceeds and
condemnation awards in a manner consistent with the provisions of this Lease;
(iii) such Recognized Mortgage shall specifically include
provisions requiring written notice to Landlord of any defaults thereunder,
permitting Landlord to cure any such defaults and to be subrogated to the rights
of the Recognized Mortgagee to the extent thereof and prohibiting any
modification, amendment, extension or consolidation of the Recognized Mortgage
without delivering a copy thereof to Landlord; and
(iv) no Recognized Mortgage shall extend to, affect, or be a
lien or encumbrance upon, the estate and interest of Landlord in the Property,
in this Lease or any part thereof and each Recognized Mortgage shall expressly
provide that at all times it shall be subject and subordinate to this Lease.
(b) PAYMENT OF INDEBTEDNESS. Any modification, amendment, extension
or consolidation of a Recognized Mortgage shall be permitted only if the same
shall comply in all respects with the requirements of SECTION 31.1(a) hereof
(c) NOTICES. In the event that Tenant's interest under this Lease is
subject to any Recognized Mortgage, Landlord will give to the Recognized
Mortgagee a copy of each notice of default from Landlord to Tenant hereunder at
the time of giving such notice to Tenant, and Landlord will give to the
Recognized Mortgagee a copy of each notice received by Landlord of any rejection
of this Lease by any trustee in bankruptcy of Tenant. No notice of default
hereunder from Landlord shall be effective against any Recognized Mortgagee
unless and until a copy of such notice has been given to such Recognized
Mortgagee in the manner provided in this Lease for the giving of notices.
(d) MORTGAGE RECORDING TAX. Subject to SECTION 3.4 hereof; in no
event shall Tenant, or any party claiming by, through or under Tenant, claim any
exemption from Mortgage Recording Tax with respect to a Recognized Mortgage.
SECTION 31.2 RIGHT AND TIME TO CURE. (a) Each Recognized Mortgagee
shall have a period of (i) ten (10) days more, in the case of any default in the
payment of Charges, and (ii) thirty (30) days more, in the case of any other
default of Tenant's Obligations, than is given Tenant
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under the provisions of this Lease, to remedy such a default, which periods
shall begin to run upon the giving of the notice to the Recognized Mortgagee
specifying such default. In addition, with respect to defaults for which
possession of the Property is required to cure such default, or in the case of
defaults that are not reasonably susceptible of being cured by a Recognized
Mortgagee (such as the bankruptcy of Tenant), the period to remedy such defaults
shall be extended for such time as is necessary for a Recognized Mortgagee to
promptly institute foreclosure proceedings, and thereafter, subject to
Unavoidable Delay, continuously prosecute the foreclosure proceedings with
reasonable diligence and continuity to obtain possession and, upon obtaining
possession of the Property, promptly commence to cure the default (other than a
default which is not reasonably susceptible of being cured by a Recognized
Mortgagee) and prosecute such cure to completion with diligence and continuity,
subject to Unavoidable Delay. With respect to defaults not reasonably
susceptible to cure by the Recognized Mortgagee, the completion of such
foreclosure proceeding shall be deemed to remedy such defaults.
(b) No Recognized Mortgagee shall be entitled to the additional
remedy periods provided in clause (ii) of SECTION 31.2(a) hereof unless within
thirty (30) days after the giving of the notice referred to in SECTION 31.2(a)
hereof such Recognized Mortgagee delivers to Landlord a written commitment to
cure or cause to be cured such defaults (other than a default which is not
reasonably susceptible of being cured by a Recognized Mortgagee). At any time
within thirty (30) days after the delivery of the aforementioned commitment,
such Recognized Mortgagee may notify Landlord, in writing, that it no longer
intends to cure a default, and, in such event the liability of such Recognized
Mortgagee for the period prior to delivery of such notice shall be limited as
set forth in SECTION 17.4 hereof as if "Recognized Mortgagee" were "Tenant" and
the Recognized Mortgagee shall have no further liability under such commitment
from and after the date on which it delivers such notice to the Landlord.
Thereupon the Recognized Mortgagee shall have no further right to cure and,
subject to SECTION 31.07 hereof; Landlord shall have the right to terminate this
Lease and to take any other action permitted under this Lease it deems
appropriate by reason of any Event of Default, and, upon any such termination,
the provisions of SECTION 31.6 hereof shall apply.
SECTION 31.3 NOTICE TO LANDLORD. Notwithstanding any of the
provisions of this ARTICLE XXXI, Landlord shall not be required to comply with
any of the provisions of this ARTICLE XXXI UNLESS Landlord has received prior
written notice of the existence of the Recognized Mortgage and such Recognized
Mortgage remains a recorded lien on the Property (or other satisfactory evidence
of the lien of the Recognized Mortgage), together with copies of the Recognized
Mortgage and the name and address of the Recognized Mortgagee to which notices
shall be sent and, if such address changes from time to time, the new address of
such Recognized Mortgagee to which notices may be sent.
SECTION 31.4 ACCEPTANCE OF PERFORMANCE. Landlord shall accept
performance by a recognized Mortgagee of any covenant, condition or agreement on
Tenant's part to be performed hereunder with the same force and effect as though
performed by Tenant.
SECTION 31.5 OTHER DEFAULTS. While a Recognized Mortgagee is
exercising any right to cure Tenant's defaults pursuant to SECTIONS 31.2 and
31.4 hereof, Landlord shall not be precluded from exercising any rights or
remedies it may have with respect to other defaults of Tenant's Obligations that
may arise from time to time hereunder, subject in each case to the Recognized
Mortgagee's rights to cure such other defaults pursuant to said SECTIONS 31.2
and 31.4 hereof.
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SECTION 31.6 EXECUTION OF NEW LEASE.
(a) NOTICE OF TERMINATION. If this Lease is terminated by reason of
an Event of Default, Landlord shall, as soon as practicable thereafter, give
notice of such termination to each Recognized Mortgagee. Such notice shall set
forth in reasonable detail a description of all defaults, to the actual
knowledge of Landlord, in existence at the time this Lease was terminated.
(b) REQUEST FOR NEW LEASE. If; within twenty-three (23) Business
Days after the giving of the notice referred to in SECTION 31.6(a) hereof, a
Recognized Mortgagee requests a new lease, then, subject to the provisions of
SECTIONS 31.6(c) and 31.7 hereof, within twenty-three (23) Business Days after
Landlord has received such request, Landlord shall execute and deliver a new
lease of the Property for the remainder of this Lease to the Recognized
Mortgagee, or to any designee or nominee of the Recognized Mortgagee which (i)
is not a Prohibited Person or Related Entity of Tenant and (ii) agrees to assume
the Obligations of Tenant hereunder. The new lease shall have the same priority
of lien as this Lease and, with the exception of the name of the tenant, shall
contain the same covenants, conditions, limitations and agreements contained in
this Lease, but Landlord shall not be deemed to have represented or covenanted
that such new lease shall be superior to the claims of any prior tenant, its
creditors, a judicially appointed receiver or trustee for such tenant, or any
other person or entity claiming priority, by operation of law or otherwise,
through, under, or by virtue of the acts of, any prior tenant.
(c) CONDITIONS PRECEDENT TO NEW LEASE. The provisions of SECTION
31.6(b) hereof notwithstanding, Landlord is not obligated to enter into a new
lease with a Recognized Mortgagee: (i) unless the Recognized Mortgagee pays to
Landlord, concurrently with the execution and delivery of such new lease, all
Charges due under this Lease up to and including the date of the commencement of
such new lease and all expenses, including reasonable attorneys' fees and
disbursements and court costs, incurred by Landlord in connection with (A) the
enforcement of Landlord's rights and remedies with respect to all defaults or
Events of Default in existence at the time of the termination of the Lease (to
the extent set forth in the notice to be delivered pursuant to SECTION 31.6(a)
hereof), (B) the termination of this Lease and (C) the preparation of such new
lease; (ii) unless Landlord concurrently receives an assumption in writing by
such Recognized Mortgagee, its designees or nominee of Tenant's obligations, if
any, under the Project Documents; and (iii) if Landlord is not then allowed to
enter into such new lease by order of a court of competent jurisdiction. To the
extent not set forth in the notice given to the Recognized Mortgagee pursuant to
SECTION 31.6(a) hereof, Landlord agrees to notify the Recognized Mortgagee,
concurrently with the giving of such new lease, of any unperformed Obligations
of; and/or defaults by, Tenant, which, to the best of Landlord's knowledge, then
exist.
(d) NO WAIVER OF DEFAULT. The execution of a new lease shall not
constitute a waiver of any default existing immediately before the termination
of this Lease, except for defaults under SECTIONS 14.2(d), 14.2(e) and 14.2(f)
hereof; and the tenant under the new lease shall cure, within the longer of (i)
the period of cure remaining to the Recognized Mortgagee pursuant to SECTION
31.2 hereof or (ii) the applicable periods set forth in the provision of such
new lease relating to events of default thereunder (which applicable periods
shall commence with the execution and delivery of the new lease or, if notice of
such defaults had not then been given, upon the giving of such notice), all
other defaults existing under this Lease immediately before its termination of
which such tenant has been or, to the extent any such defaults were not then
known by Landlord, is thereafter given notice; PROVIDED, HOWEVER, with respect
to any default under SECTIONS l4.2(h), 14.2(h) and 14.2(i) hereof existing
immediately before its termination, the period of cure shall be
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such time as is necessary for the new tenant to promptly commence to cure such
default following execution and delivery of the new lease and to prosecute such
cure to completion with diligence and continuity, subject to Unavoidable Delay.
Notwithstanding anything to the contrary, if after the Recognized Mortgagee
requests a new lease pursuant to this SECTION 31.6 the Recognized Mortgagee is
given notice of a default existing before the termination of this Lease and
which default was not noticed to the Recognized Mortgagee prior to the date of
such request, then at any time within ten (10) days after such notice of default
is given, the Recognized Mortgagee may rescind such request in writing to
Landlord, or if the new lease has then already been executed and delivered, the
new tenant may relinquish possession of the Property and cancel the new lease by
notice to Landlord. Thereupon, Landlord shall have the right, subject to SECTION
31.7 hereof, to terminate the new lease, and the Recognized Mortgagee shall have
no further right to a new lease.
(e) ASSIGNMENT OF PROCEEDS. Concurrently with the execution and
delivery of a new lease pursuant to the provisions of SECTION 31.6(b) hereof,
Landlord shall assign to the tenant named therein all of its right, title and
interest in and to monies (including insurance proceeds and condemnation
awards), if any, then held by, or payable to, Landlord that Tenant would have
been entitled to receive but for the termination of this Lease or the occurrence
of an Event of Default, other than any such amounts theretofore applied under
this Lease to the discharge of Tenant's Obligations to Landlord hereunder,
subject to the rights, if any, of the prior Tenant therein and to the provisions
of such new lease.
(f) NO OBLIGATION TO DELIVER POSSESSION. Nothing contained herein
shall be deemed to obligate Landlord to remove any liens, encumbrances or other
defects in title to the Property or to deliver Possession of the Property to the
tenant under any such new lease, except for the delivery of Possession free and
clear of the claims of persons or entities claiming through or under Landlord,
other than Tenant and those claiming by, through or under Tenant.
(g) ASSIGNMENT OF SUBLEASES. Upon the execution and delivery of a
new lease pursuant to the provisions of this SECTION 31.6, all Subleases that
may have been assigned to Landlord and all leases that Landlord makes directly
shall be assigned and transferred, without recourse, to the tenant named in the
new lease. Between the date of termination of this Lease and the date of the
execution and delivery of the new lease, if a Recognized Mortgagee has timely
requested a new lease as provided in this SECTION 31.6, Landlord shall not
materially modify or amend, or cancel any Sublease or accept any cancellation,
termination or surrender thereof (unless such termination is effected as a
matter of law upon the termination of this Lease or terminated pursuant to the
express terms of the Sublease) or enter into any new Sublease without the
consent of the Recognized Mortgagee or such designee or nominee.
(h) CREDITS. Any rent credits to which Tenant is entitled under this
Lease and which have not been exhausted at the time this Lease is terminated,
and interest thereon shall inure to the benefit of the tenant under any new
lease granted pursuant to SECTION 31.6(b) hereof.
(i) CONTINUATION OF THIS LEASE IN LIEU OF ENTERING INTO NEW LEASE.
(i) TERMINATION NOTICE. A Recognized Mortgagee shall have the
right, within fifteen (15) days after the delivery of the Termination Notice to
such Recognized Mortgagee pursuant to SECTION 31.6(a) hereof, to elect to
continue this Lease in lieu of requesting a new lease by notice to Landlord,
subject to the further conditions of this SECTION 31.6(i). Such right may be
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exercised by a Recognized Mortgagee, or any designee or nominee thereof which
satisfies the conditions set forth in clauses (i) and (ii) of this SECTION
31.6(i).
(ii) ELECTION TO CONTINUE LEASE. If a Recognized Mortgagee
elects to continue this Lease by notice given to Landlord within such 15-day
period (the "CONTINUATION NOTICE"), then effective upon the delivery of such
notice, Tenant shall be deemed to have assigned to such Recognized Mortgagee, or
any such designee or nominee thereof; as the case may be, all of Tenant's right,
title and interest in and to this Lease and the leasehold estate in the Property
created hereunder, including the Subleases and security deposits thereunder
referred to SECTION 31.6(i)(vii), and Tenant shall, at Landlord's request,
execute and deliver to Landlord and such Recognized Mortgagee such instruments
of assignment and related transfer tax documents as Landlord and such Recognized
Mortgagee may request (in form reasonably satisfactory to Landlord and such
Recognized Mortgagee) to evidence such assignment. If Tenant fails to execute
and deliver any such instrument of assignment or related transfer tax documents,
such Recognized Mortgagee shall be entitled to do so on Tenant's behalf, and
Tenant hereby appoints such Recognized Mortgagee as its attorney-in-fact, which
appointment shall be deemed to be coupled with an interest and is irrevocable,
for the sole purpose of executing and delivering such assignment and any
transfer tax documents. The execution and delivery of such instruments, however,
shall not be required to effect the assignment of this Lease to such Recognized
Mortgagee or such nominee or designee.
(iii) CONDITIONS PRECEDENT TO NEW LEASE. The provisions of
SECTIONS 31.6(i)(i) and 31.6(i)(ii) hereof notwithstanding, a Recognized
Mortgagee shall have no right to continue this Lease unless the Recognized
Mortgagee pays to Landlord, concurrently with the delivery of the Continuation
Notice, all amounts due to Landlord under this Lease up to and including the
date of the Continuation Notice and all expenses, including reasonable
attorneys' fees and disbursements and court costs, incurred by Landlord in
connection with (1) the enforcement of Landlord's rights and remedies with
respect to all defaults or Events of Default in existence at the time of the
Termination Notice, and (2) the review of any assignments and other instruments
or documents prepared in connection with the Recognized Mortgagee's election,
nor shall the Recognized Mortgagee have the right to such new lease if by order
of a court of competent jurisdiction the parties are not entitled to continue
this Lease and effect the assignment thereof to the Recognized Mortgagee. To the
extent not set forth in the notice given to the Recognized Mortgagee pursuant to
SECTION 31.6(a) hereof, Landlord agrees to notify the Recognized Mortgagee,
concurrently with the delivery of such new lease, of any unperformed Obligations
of, and/or defaults by, Tenant, which, to the best of Landlord's knowledge, then
exist.
(iv) NO WAIVER OF DEFAULT. The assignment of this Lease
pursuant to this SECTION 31.6(i) shall not constitute a waiver of any default
existing immediately before the termination of this Lease, except for defaults
under SECTIONS 14.2(d), 14.2(e) and 14.2(f) hereof, and the tenant under the
assigned Lease shall cure all other defaults existing under this Lease
immediately before its assignment of which the Recognized Mortgagee has been
given notice of or, to the extent any such defaults were not then known by
Landlord, is thereafter given notice. Such cure shall be accomplished within the
longer of (A) the period of cure remaining to the Recognized Mortgagee pursuant
to SECTION 31.2 hereof or (B) the applicable periods set forth in SECTION 14.2
(Events of Default) of this Lease (which applicable periods shall commence with
the execution and delivery of the assignment of this Lease (or upon the deemed
assignment of this Lease, as applicable) for each such default of which the
Recognized Mortgagee received notice prior to the delivery of the Continuation
Notice or, if notice of any such default had not then been given until after
delivery of the Continuation Notice, upon the delivery of such notice);
PROVIDED, HOWEVER, with respect to any
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default under SECTIONS l4.2(g). 14.2(h) and 14.2(i) hereof existing immediately
before its assignment, the period of cure shall be such time as is necessary for
the assignee to promptly commence to cure such default following the assignment
of this Lease thereto and to prosecute such cure to completion with diligence
and continuity, subject to Unavoidable Delay. Notwithstanding anything to the
contrary, if after the Recognized Mortgagee delivers a Continuation Notice
pursuant to SECTION 31.6(i)(ii) the Recognized Mortgagee is given notice of a
default existing before the Continuation Notice and which default was not
noticed to the Recognized Mortgagee prior to the date of such Continuation
Notice, then at any time within ten (10) days after such notice is given the
assignee may relinquish possession of the Property and cancel this Lease by
notice to Landlord. Thereupon, Landlord shall have the unrestricted right to
terminate this Lease, subject to SECTION 31.7 hereof; without offering the
Recognized Mortgagee a new lease pursuant to SECTION 31.6(a) and 31.6(b)
hereof, and the Recognized Mortgagee shall have no further rights to a new lease
thereunder.
(v) ASSIGNMENT OF PROCEEDS. Concurrently with the assignment
of this Lease pursuant to the provisions of this SECTION 31.6(i), Landlord shall
assign to the assignee of this Lease all of its right, title and interest in and
to monies (including insurance proceeds and condemnation awards), if any, then
held by, or payable to. Landlord that Tenant would have been entitled to receive
but for the occurrence of an Event of Default and the expiration of any cure
periods, other than any such amounts theretofore applied under this Lease to the
discharge of Tenant's Obligations to Landlord hereunder, subject to the rights,
if any, of the prior Tenant therein.
(vi) NO OBLIGATION TO DELIVER POSSESSION. Nothing contained
herein shall be deemed to obligate Landlord to remove any liens, encumbrances or
other defects in title to the Property or to deliver Possession of the Property
to the assignee under any such assignment, except for the delivery of Possession
free and clear of the claims of persons or entities claiming through or under
Landlord, other than Tenant and those claiming by, through or under Tenant.
(vii) ASSIGNMENT OF SUBLEASES. Upon the assignment of this
Lease pursuant to the provisions of this section 31.6(i), all Subleases shall
concurrently therewith be assigned and transferred, together with any security
or other deposits held by Tenant and not applied under such Subleases.
(viii) NO EXTENSION OF CURE RIGHTS IN FAVOR OF TENANT.
Notwithstanding anything to the contrary contained herein and without limiting
the assignee's rights under SECTION 31.6(i)(iv) above, the rights granted under
this SECTION 31.6(i) are not intended to, and shall not, extend any periods
granted to Tenant under SECTION 14.2 hereof to cure any Event of Default
occurring prior to the delivery of any such Termination Notice.
(ix) EFFECT OF FAILURE TO ELECT TO CONTINUE LEASE ON
RECOGNIZED MORTGAGEE'S RIGHT TO REQUEST A NEW LEASE. Notwithstanding anything to
the contrary contained in this SECTION 31.6, if a Recognized Mortgagee fails to
elect to continue this Lease within the 15-day period referred to in SECTION
31.6(i)(i), then, subject to SECTION 31.7 hereof; this Lease shall terminate
effective upon the expiration of such 15-day period. Notwithstanding anything to
the contrary contained in SECTION 31.6(b), such Recognized Mortgagee shall have
fifteen (15) days after the delivery of the termination notice referred to in
SECTION 31.6(b) hereof to request a new lease, and if such Recognized Mortgagee
fails to request a new lease within such fifteen (15)-day period, then such
Recognized Mortgagee's rights to enter into a new lease shall terminate.
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SECTION 31.7 RECOGNITION OF MOST SENIOR RECOGNIZED MORTGAGEE. If
more than one Recognized Mortgagee has exercised any of the rights afforded by
this ARTICLE XXXI, then, unless otherwise provided in the Recognized Mortgage
most senior in lien (or otherwise acknowledged in writing by the holder thereof)
or consented to by the holder thereof, only that Recognized Mortgagee, to the
exclusion of all other Recognized Mortgagees, whose Recognized Mortgage is most
senior in lien shall be recognized by Landlord as having exercised such right,
for so long as such Recognized Mortgagee shall be exercising its rights under
this Lease with respect thereto, with reasonable diligence, and thereafter,
successively, the Recognized Mortgagees whose Recognized Mortgages are next most
senior in lien shall be recognized by Landlord, in order of seniority, unless
any such Recognized Mortgagee has designated, in writing, a Recognized Mortgagee
whose Recognized Mortgage is junior in lien to exercise such right. If the
parties shall not agree on which Recognized Mortgage is prior in lien, such
dispute shall be determined by a then current certificate of title obtained by
Landlord or Tenant, at Tenant's sole expense, issued by a title insurance
company licensed to do business in the State of New York and selected by
Landlord, and such determination shall bind the parties.
SECTION 31.8 NO RIGHTS OF OTHER MORTGAGEES. A mortgagee that is not
a Recognized Mortgagee shall have no rights hereunder, and Landlord shall have
no obligations to any mortgagee other than a Recognized Mortgagee.
SECTION 31.9 MISCELLANEOUS MORTGAGE PROVISIONS.
(a) NO LIABILITY. No holder of a Recognized Mortgage shall become
liable under the provisions of this Lease unless and until such time as it
becomes, and then only for so long as it remains, the owner of a leasehold
estate created hereby or pursuant to SECTION 31.6(d) hereof; PROVIDED, HOWEVER,
that no Recognized Mortgagee shall be responsible for any amounts due under
SECTION 14.1(b) hereof that accrue from and after the date that Landlord
receives notice that such Recognized Mortgagee has initiated foreclosure
proceedings with respect to its Recognized Mortgage.
(b) NOMINEE. A Recognized Mortgagee shall have the right to assign
any Recognized Mortgage held by it to a nominee controlled by, or under common
control with, it, prior to and in anticipation of the foreclosure of such
Recognized Mortgage, and shall not thereby lose its status as a Recognized
Mortgagee unless and until such time as such nominee becomes the owner of the
leasehold estate created hereby.
(c) FORECLOSURE. Nothing contained herein shall be deemed to require
the holder of a Recognized Mortgage to continue with any foreclosure or other
proceedings, or in the event it shall otherwise acquire possession of the
Property, to continue such possession.
(d) LEASE AMENDMENTS. No amendment or modification of this Lease
shall be effective as against a particular Recognized Mortgagee unless a copy of
the proposed amendment or modification shall have been delivered to such
Recognized Mortgagee, such notice to include the statement "THIS NOTICE IS THE
NOTICE OF THE RECOGNIZED MORTGAGEE'S RIGHT TO APPROVE AN AMENDMENT OF THE LEASE
PURSUANT TO SECTION 31.9(d) OF THE LEASE, WHICH APPROVAL SHALL BE DEEMED GIVEN
TWENTY-THREE BUSINESS DAYS AFTER RECOGNIZED MORTGAGEE'S RECEIPT OF THIS NOTICE,"
and such Recognized Mortgagee shall have either: (i) approved the amendment or
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modification in writing or (ii) failed to disapprove the amendment or
modification in writing within twenty-three (23) Business Days after receipt of
a copy thereof.
SECTION 31.10 DELEGATION BY TENANT. Tenant may delegate irrevocably
to a Recognized Mortgagee the authority to exercise any or all of Tenant's
rights hereunder, but no such delegation shall be binding upon Landlord unless
and until either Tenant or such Recognized Mortgagee shall give to Landlord an
executed counterpart of the written instrument effecting such delegation. Such
delegation of authority may be effected by the terms of the Recognized Mortgage
itself, in which case, the service upon Landlord of an executed counterpart or
certified copy of such Recognized Mortgage in accordance with this ARTICLE XXXI,
together with a written notice specifying the provisions thereof which delegate
such authority to such Recognized Mortgagee, shall be sufficient to give
Landlord notice of such delegation. In such event, Landlord shall be entitled to
rely upon such delegation of authority until Landlord shall have received
written notice from Tenant and such Recognized Mortgagee indicating that such
delegation of authority shall have been revoked or terminated. Any provisions of
this Lease which give to a Recognized Mortgagee the privilege of exercising a
particular right of Tenant hereunder on condition that Tenant shall have failed
to exercise such right shall not be deemed to diminish any privilege which such
Recognized Mortgagee may have, by virtue of a delegation of authority from
Tenant, to exercise such right without regard as to whether or not Tenant shall
have failed to exercise such right.
SECTION 31.11 SURVIVAL. The provisions of SECTIONS 31.6 and 31.7
hereof shall survive the termination of this Lease.
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ARTICLE XXXII
CONDOMINIUM CONVERSION
SECTION 32.1 CONDOMINIUM CONVERSION.
(a) At any time from and after Substantial Completion, and provided
no monetary Default, Default under ARTICLE XIII hereof; Event of Default or
failure of Tenant to comply with the DUO with respect to the installation of the
Business/Commercial Signage (as defined in and to the extent then required
pursuant to EXHIBIT E-4 attached hereto) shall then be continuing, Tenant may
elect to impose a leasehold condominium structure on the Property, in strict
compliance with this ARTICLE XXXII, (1) if in accordance with the Condominium
Declaration, upon not less than ten (10) days prior written notice to Landlord
or (2) otherwise, upon not less than sixty (60) days' prior written notice to
Landlord. If Tenant shall so elect, then Tenant may take the following actions
(provided, however, that such actions must be taken together if at all):
(i) obtain, at Tenant's sole cost and expense but with the
reasonable cooperation of Landlord, tax lot subdivisions in respect of the
Property and record the Condominium Declaration in the manner required by the
Condominium Act;
(ii) simultaneously with or immediately following the
recordation of the Condominium Declaration, assign to Landlord all of Tenant's
right, title and interest in the Property, this Lease and each Severance
Sublease pursuant to an Assignment and Assumption Agreement in the form attached
hereto as EXHIBIT W, which Landlord agrees it shall execute upon delivery of
Tenant's counterpart therefor (such agreement, the "LEASE ASSIGNMENT") and, in
such event, the parties hereto hereby agree that there shall be no merger of the
estates of Landlord and Tenant granted in this Lease; and
(iii) contemporaneously with the delivery of the Lease
Assignment pursuant to SECTION 32.1(a)(ii) hereof (such date, the "Lease
ASSIGNMENT DATE"), cause to be executed and delivered to Landlord: (A) the
construction certificate provided for in SECTION 21.3 hereof; (B) an agreement
of the Condominium Association assuming certain obligations of Tenant (the
"CONDOMINIUM ASSOCIATION ASSUMPTION AGREEMENT") in the form set forth on EXHIBIT
X hereof; (C) an amendment of the previously recorded memorandum of this Lease
altering the notice provision thereunder to reflect the assignment of Tenant's
interest in this Lease to Landlord and the amendment of this Lease; (D) an
amendment to each Severance Sublease executed by Tenant and the tenant under
such Severance Sublease setting forth therein (1) the correct description of the
demised premises under each Severance Sublease, (2) a date certain for the
Delivery Date (3) a date certain for the Substantial Completion Date, (4) a date
certain for the Vesting Date and (5) any other amendment to any Project Document
required to be entered into solely to reflect the condominium conversion; (E)
(1) an amendment of the previously recorded memorandum of NYT Severance Sublease
reflecting, inter alia, the change of landlord thereunder and correcting the
description of the then applicable demised space, to be promptly recorded by the
Subtenant thereunder, (2) an amendment of the previously recorded memorandum of
FC Office Severance Sublease reflecting, inter alia, the change of landlord
thereunder and correcting the description of the applicable demised space, to be
promptly recorded by the Subtenant thereunder, and (3) an amendment of the
previously recorded memorandum of FC Retail Severance Sublease reflecting, inter
alia, the change of landlord thereunder and correcting the description of the
applicable demised space, to be promptly recorded by the Subtenant thereunder;
and (F) the Total Taxable Square Feet Certification.
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(b) Landlord shall cooperate with Tenant, as reasonably requested,
in Tenant's taking the actions set forth in this ARTICLE XXXII at the sole cost
and expense of Tenant. Provided the conditions hereinafter set forth shall have
been satisfied by Tenant (or waived by Landlord), Landlord shall (i) execute the
Condominium Declaration for the purpose of(A) if Tenant is the declarant
thereof, evidencing Landlord's consent to the submission of Tenant's leasehold
estate in the Property to the Condominium Act or (B) if required by Legal
Requirements or the New York State Department of Law and with the consent of
Tenant, act as declarant for the sole purpose of submitting its leasehold estate
in the Property as Tenant pursuant to the Lease Assignment (but, in no event,
its fee estate in the Property) to the Condominium Act and (ii) amend and
restate this Lease, effective as of the Lease Assignment Date, as set forth in
the amendment attached hereto as EXHIBIT Y. In no event shall Landlord have any
liability to Tenant or any other party by reason of Landlord's cooperation with
the condominium conversion, including, without limitation, in the event that,
after Landlord's reasonable cooperation, Tenant is unable to legally obtain (1)
any approval, authorization or permit to establish a condominium regime with
respect to its interest in the Property or (2) the subdivision of its interest
in the Property into separate tax lots.
(c) Tenant shall not record the Condominium Declaration unless
Tenant shall have complied with all applicable requirements of this ARTICLE
XXXII, including, without limitation, the following conditions:
(i) Tenant shall have obtained a No-Action Letter;
(ii) Tenant shall have provided information to Landlord
demonstrating that the contemplated Common Elements (as defined in the Severance
Subleases) in the New Building substantially conform to the plans attached on
the date hereof to the Condominium Declaration as Exhibit E thereto;
(iii) Substantial Completion shall have occurred; and
(iv) No monetary Default, Default under ARTICLE XIII hereof;
Event of Default or failure of Tenant to comply with the DUO with respect to the
installation of the Business/Commercial Signage (as defined in and to the extent
then required pursuant to EXHIBIT E-4 attached hereto) shall have occurred and
be continuing. Landlord acknowledges that Tenant's failure to (A) operate the
Public Amenity in compliance with SECTION 30.4(d) hereof at any time, and (B)
install said Business/Commercial Signage (if the deadline for such installation
pursuant to EXHIBIT E-4 hereof has not occurred) shall not bar Tenant from
otherwise imposing the leasehold condominium structure on the Property in
accordance with this ARTICLE XXXII.
SECTION 32.2 CONDOMINIUM DOCUMENTS.
(a) If Tenant shall desire to amend, modify or supplement any
Condominium Document, or to withdraw the Condominium Declaration, such Person
shall submit such proposal to Landlord and, so long as such proposed amendment,
modification, supplement or withdrawal would not, in Landlord's reasonable
opinion, affect a substantive right of any Public Party or of any party thereto
to an extent that is greater than de minimis and the form of such amendment,
modification or supplement is otherwise reasonably acceptable to Landlord,
Landlord shall so amend, modify, supplement or permit the withdrawal of such
Condominium Document.
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(b) It shall be Tenant's sole responsibility to assure that the
Condominium Documents comply with all Legal Requirements, including, without
limitation, the rules and regulations of the New York State Department of Law.
Landlord's determination that the Condominium Documents conform to the
provisions of this Lease shall not be, nor shall it be construed to be or relied
upon by Tenant or any other Person as, a determination that the Condominium
Documents comply with all Legal Requirements, including, without limitation, the
rules and regulations of the New York State Department of Law.
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ARTICLE XXXIII
MISCELLANEOUS
SECTION 33.1 RECORDING AND TRANSFER TAX. Landlord and Tenant, each
upon the written request of the other or of any Recognized Mortgagee, shall
execute, acknowledge and deliver a memorandum of this Lease in the form set
forth on EXHIBIT Z attached hereto, and of each modification of this Lease, each
in proper form for recordation. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant shall be solely responsible for the
timely payment of any transfer or similar taxes that may be payable as a result
of this Lease, and Tenant shall indemnify the Public Parties from and against
any and all Claims related thereto.
SECTION 33.2 BROKERS.
(a) LANDLORD'S AND TENANT'S REPRESENTATIONS. Each of Landlord and
Tenant represents and warrants to the other that it has not dealt with any
broker, finder or other party entitled to a broker's or finder's fee, or other
commissions or compensation arising out of or in connection with the execution
of this Lease, the Project Documents or any transactions relating thereto, other
than Insignia/ESG, Inc. and Ascot Brokerage Ltd. (collectively, the "BROKERS")
and Argent Advisors LLC ("ARGENT").
(b) TENANT'S OBLIGATIONS. Tenant shall be liable for, and shall
indemnify each of the Public Parties against all brokerage commissions or other
compensation due to the Brokers (which compensation shall be paid pursuant to
separate agreements between Tenant and such Brokers) or to any other broker,
finder or other party if such broker, finder or other party alleges that it (i)
has acted for, or at the direction of, Tenant, whether or not such broker,
finder or other party also alleges that it has dealt with the Public Parties, or
(ii) has dealt exclusively with Tenant, arising out of the execution of this
Lease, the Project Documents or any transactions relating thereto.
(c) LANDLORD'S OBLIGATIONS. Landlord shall be liable for, and shall
indemnify Tenant against all brokerage commissions or other compensation due to
Argent (which compensation shall be paid pursuant to a separate agreement
between Landlord and Argent).
(d) GENERAL. Notwithstanding anything to the contrary contained in
ARTICLE XVIII hereof, any party seeking indemnification under this SECTION 33.2
shall provide the indemnifying party with prompt service of such claim within a
reasonable time after the party seeking indemnification first becomes aware of
the existence thereof. If (i) the indemnifying party is Tenant, any such claim
may be defended by counsel reasonably acceptable to the Public Parties (or, if
insured, by counsel designated by Tenant's insurer, as applicable), or (i) the
indemnifying parties are the Public Parties, by counsel to the Public Parties.
No settlement of any such claim shall be entered into unless (A) the indemnified
party would have no liability as a consequence of such settlement or (B) the
indemnifying party consents to such settlement.
(e) SURVIVAL. This SECTION 33.2 shall survive the expiration or
earlier termination of this Lease.
SECTION 33. MEDIA ANNOUNCEMENTS. All media releases and
announcements concerning the Property shall be referred to and coordinated by
Landlord, except that Landlord shall keep Tenant informed in advance of any such
media releases and announcements; PROVIDED, HOWEVER, that information about the
Project reported in The New York Times shall not be considered
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media releases and announcements for the purposes of this SECTION 33.3. so long
as the information upon which any such release or announcement is based did not
become available on account of a breach of this SECTION 33.3.
SECTION 33.4 RELATIONSHIP OF LANDLORD AND TENANT. No provision of
this Lease is not to be construed to create a partnership or joint venture
between the parties, it being the intention of the parties hereto only to create
a landlord and tenant relationship.
SECTION 33.5 PERSON ACTING ON BEHALF OF A PARTY HEREUNDER. Either
party hereunder may require the other party hereunder to provide evidence
reasonably satisfactory to such party of the authority of any Person acting on
behalf of the other party.
SECTION 33.6 THIRD PARTY BENEFICIARY. Nothing contained herein is
intended to be for, or to inure to, the benefit of any Person other than
Landlord, Tenant and Recognized Mortgagees and their respective successors and
assigns, except as otherwise expressly provided in this Lease. No Person other
than Landlord or the City is entitled, as a consequence of any term, condition,
covenant or agreement contained in this Lease or of Tenant's failure to observe
or perform the same, to seek, claim or recover damages or any other legal or
equitable remedy against Tenant.
SECTION 33.7 PROPRIETARY CAPACITY ONLY. Landlord (including any
successor Landlord), if a governmental entity or instrumentality, enters into
this Lease in Landlord's "proprietary" capacity only. Nothing in this Lease
shall be deemed in any way to expand, restrict, burden, or waive any right,
privilege, obligation, claim or immunity that any Governmental Authority would
possess, be subject to, or be entitled to exercise if the lessor under this
Lease were a private party. Without limiting the effect of the immediately
preceding sentence, nothing in this Lease is intended to burden or restrict the
exercise by any Governmental Authority of its "police power" or impose any
liability upon any Governmental Authority for (or entitle Tenant to any credit,
offset, defense, claim or counterclaim on account of) the exercise of such
"police power." In keeping therewith, Tenant's relations with all Governmental
Authorities, when acting in their capacity as Governmental Authorities, shall be
governed by otherwise applicable law.
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ARTICLE XXXIV
COMMON ELEMENTS LEASEABLE SPACE
SECTION 34.1 GENERALLY.
(a) Tenant may, subject to SECTION 13.2 hereof and this ARTICLE
XXXIV, sublease portions of the Improvements specified in this ARTICLE XXXIV.
(b) Tenant may enter into a sublease of up to 10,000 Square Feet of
enclosed or permanently covered space on the floor designated as the 53rd floor
of the New Building, as shown on, and in conformity with, the schematic design
plan drawing listed on EXHIBIT I-1 attached hereto as number A 1053 (the "ROOF
TOP GARDEN SPACE").
(c) Tenant may enter into up to three (3) subleases of up to 600
Square Feet of space (in the aggregate) located in the lobby of the New
Building, such location to be specified by the Design Architect and reasonably
approved by Landlord (collectively, the "LOBBY SUBLEASE SPACE"; and together
with the Roof Top Garden Space, the "COMMON ELEMENTS LEASEABLE SPACE"). All
Lobby Sublease Space shall be designed in accordance with the DUO. Upon the
preparation of proposed final plans and specifications for any portion of the
Lobby Sublease Space, Tenant shall provide to Landlord a statement of the
Production Architect (i) certifying that such final plans and specifications
conform to the Lobby Sublease Space design guidelines prepared in accordance
with the DUO and (ii) attaching a complete copy of such proposed final plans and
specifications. Landlord shall notify Tenant of its approval or disapproval of
such certification within fifteen (15) Business Days of its receipt thereof;
PROVIDED, THAT, if Landlord shall not approve or disapprove such certification
within such fifteen (15) Business Day period, Landlord shall be deemed to have
approved such certification. No Alteration shall be made in the Lobby Sublease
Space except after Landlord's acceptance of, and in conformity with, the
certification described above.
SECTION 34.2 DEFINED TERMS.
(a) "BUDGETED LOBBY SUBLEASE SPACE CONSTRUCTION COSTS" means the
total, actual cost to construct the Lobby Sublease Space as reasonably approved
by Tenant's construction lender (so long as such construction lender is a
Lending Institution) or as reasonably approved by Landlord (if, in respect of
the Lobby Sublease Space, Tenant has no construction lender which is a Lending
Institution or no approval of Tenant's construction lender is required by such
lender in connection therewith), as indicated on a final construction budget
approved, as the case may be, by such construction lender or by Landlord (the
construction budget for the Lobby Sublease Space having been prepared separately
from the overall construction budget for the New Building, and having been
provided to Landlord as a Verified Statement), including the Transaction Price
and all other hard and soft costs (other than land acquisition costs above the
Transaction Price), in each case, reasonably allocable, on a square foot basis,
to the Lobby Sublease Space.
(b) "BUDGETED ROOF TOP GARDEN CONSTRUCTION COSTS" means the total,
actual cost to construct the Roof Top Garden Space as reasonably approved by
Tenant's construction lender (so long as such construction lender is a Lending
Institution) or by Landlord (if, in respect of the Roof Top Garden Space, Tenant
has no construction lender which is a Lending Institution), as indicated on a
final construction budget approved, as the case may be, by such construction
lender or by Landlord (the construction budget for the Roof Top Garden Space
having been prepared separately from the overall construction budget for the New
Building, and having been provided to
161
Landlord as a Verified Statement), including the Transaction Price and all other
hard and soft costs (other than land acquisition costs above the Transaction
Price), in each case, reasonably allocable, on a square foot basis, to the Roof
Top Garden Space.
(c) "LOBBY SUBLEASE SPACE ADJUSTED GROSS REVENUES" means all (A)
revenues, receipts and income of whatever kind and nature of Tenant or any
Related Entity, as determined in accordance with Accounting Principles, in any
Lease Year, generated from the ownership, operation, leasing, use or occupancy
of any Lobby Sublease Space (but only if the Lobby Sublease Space equals or
exceeds 250 Square Feet) including (1) license fees or other amounts received
from any subtenant of such Lobby Sublease Space or its affiliate for the right
to maintain signage on the facade of the New Building (but not from the granting
of such signage rights to any third party), (2) rentals, fees or other payments
from Subtenants (subject to clause (9) below), including any common area
maintenance and operating expense, but specifically excluding payments received
in reimbursement of utility, PILOT, Theater Surcharge or BID payments made by
Tenant, or any Related Entity, (3) the proceeds of insurance received by Tenant
with respect to business interruption or rent insurance (but not liability or
casualty insurance received by Tenant), (4) security and other deposits which
secure other revenues, receipts or income qualifying as Lobby Sublease Adjusted
Gross Revenues when and to the extent Tenant, after the final resolution of any
Subtenant dispute over whether Tenant has the right to retain such security and
other deposits, either has the right to retain the same or Tenant has no
obligation to refund the same (and excluding security and other deposits to the
extent applied by Tenant to reimburse Tenant for reasonable costs incurred in
remedying a non-monetary default by the provider of such security or deposit),
(5) interest or other investment income earned from time to time by Tenant on
deposits or other revenues, receipts or income qualifying as Lobby Sublease
Adjusted Gross Revenues, (6) amounts recovered in any legal action or proceeding
or settlement thereof which reimburses Tenant for a loss of revenues, receipts
or income qualifying as Lobby Sublease Adjusted Gross Revenues (and excluding
any such amounts to the extent reimbursing Tenant for reasonable costs incurred
in remedying a non-monetary default by the defendant in such action), (7)
construction fees from the performance by Tenant or any Related Entity of
construction or construction management services for Subtenants, but only to the
extent such fees exceed customary amounts (and excluding such fees to the extent
they do not exceed such customary amounts), (8) leasing or brokerage commissions
paid to Tenant or any Related Entity in connection with the entering into of a
Sublease or the renewal thereof or the expansion of the Demised Space
thereunder, but only to the extent Tenant or such Related Entity is not the
procuring broker, or if Tenant or such Related Entity is the procuring broker,
only to the extent such commissions exceed customary amounts (and excluding such
commissions to the extent they do not exceed such customary amounts), and (9)
with respect to any Related Entity that is a Subtenant in possession and actual
use of its Demised Space, the greater of [a] the rentals, fees or other payments
made to Tenant by such Subtenant, including any common area maintenance and
operating expense, but specifically excluding payments received in reimbursement
of utility, PILOT, Theater Surcharge or BID payments made by Tenant and [b] the
fair market rental value of such Demised Space (and with respect to a Related
Entity that is a Subtenant not in possession and actual use of its Demised
Space, all revenues, receipts and income of whatever kind and nature of such
Related Entity generated from the Project, as provided above, shall be included
in Lobby Sublease Adjusted Gross Revenues) less (B) refunds made upon
transactions included within the revenues described in clause (A) above. "Lobby
Sublease Adjusted Gross Revenues" shall not include any management fee in a
customary amount paid by Tenant to any Related Entity to manage the Property.
(d) "ROOF TOP GARDEN ADJUSTED GROSS REVENUES" means all (A)
revenues, receipts and income of whatever kind and nature of Tenant or any
Related Entity, as determined in
162
accordance with Accounting Principles, in any Lease Year, generated from the
ownership, operation, leasing, use or occupancy of any Roof Top Garden Space
including (1) license fees or other amounts received from any subtenant of such
Roof Top Garden Space or its affiliate for the right to maintain signage on the
facade of the New Building (but not from the granting of such signage rights to
any third party), (2) rentals, fees or other payments from Subtenants (subject
to clause (9) below), including any common area maintenance and operating
expense, but specifically excluding payments received in reimbursement of
utility, PILOT, Theater Surcharge or BID payments made by Tenant, or any Related
Entity, (3) the proceeds of insurance received by Tenant with respect to
business interruption or rent insurance (but not liability or casualty insurance
received by Tenant), (4) security and other deposits which secure other
revenues, receipts or income qualifying as Roof Top Garden Adjusted Gross
Revenues when and to the extent Tenant, after the final resolution of any
Subtenant dispute over whether Tenant has the right to retain such security and
other deposits, either has the right to retain the same or Tenant has no
obligation to refund the same (and excluding security and other deposits to the
extent applied by Tenant to reimburse Tenant for reasonable costs incurred in
remedying a non-monetary default by the provider of such security or deposit),
(5) interest or other investment income earned from time to time by Tenant on
deposits or other revenues, receipts or income qualifying as Roof Top Garden
Adjusted Gross Revenues, (6) amounts recovered in any legal action or proceeding
or settlement thereof which reimburses Tenant for a loss of revenues. receipts
or income qualifying as Roof Top Garden Adjusted Gross Revenues (and excluding
any such amounts to the extent reimbursing Tenant for reasonable costs incurred
in remedying a non-monetary default by the defendant in such action), (7)
construction fees from the performance by Tenant or any Related Entity of
construction or construction management services for Subtenants, but only to the
extent such fees exceed customary amounts (and excluding such fees to the extent
they do not exceed such customary amounts), (8) leasing or brokerage commissions
paid to Tenant or any Related Entity in connection with the entering into of a
Sublease or the renewal thereof or the expansion of the Demised Space
thereunder, but only to the extent Tenant or such Related Entity is not the
procuring broker, or if Tenant or such Related Entity is the procuring broker,
only to the extent such commissions exceed customary amounts (and excluding such
commissions to the extent they do not exceed such customary amounts), and (9)
with respect to any Related Entity that is a Subtenant in possession and actual
use of its Demised Space, the greater of [a] the rentals, fees or other payments
made to Tenant by such Subtenant, including any common area maintenance and
operating expense, but specifically excluding payments received in reimbursement
of utility, PILOT, Theater Surcharge or BID payments made by Tenant and [b] the
fair market rental value of such Demised Space (and with respect to a Related
Entity that is a Subtenant not in possession and actual use of its Demised
Space, all revenues, receipts and income of whatever kind and nature of such
Related Entity generated from the Project, as provided above, shall be included
in Roof Top Garden Adjusted Gross Revenues) less (B) refunds made upon
transactions included within the revenues described in clause (A) above. "Roof
Top Garden Adjusted Gross Revenues" shall not include any management fee in a
customary amount paid by Tenant to any Related Entity to manage the Property.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease
as of the day and year first above written.
LANDLORD:
42ND ST. DEVELOPMENT PROJECT, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President/
Planning & Design
TENANT:
THE NEW YORK TIMES BUILDING LLC
By: NYT Real Estate Company LLC,
member
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Manager
By: FC Lion LLC, member
By: FC 00xx Xxxxxx Associates,
LLC, its managing member
By: RRG 8 South, Inc., its
managing member
By: /s/ Xxxxx Xxxxxx
--------------------------
Name: Xxxxx Xxxxxx
Title: President
EXHIBIT A
THE PROJECT DOCUMENTS (RECITALS)
1. Agreement of Lease, dated as of the date hereof, by and between
42nd St. Development Project, Inc. ("42DP") and The New York Times Building LLC
("Developer").
2. Site 8 South Land Acquisition and Development Agreement, dated as
of the date hereof; by and among New York State Urban Development Corporation
d/b/a Empire State Development Corporation ("ESDC"), 42DP and Developer.
3. Site 8 South LADA Guaranty, dated as of the date hereof, by The
New York Times Company ("NYTC"), in favor of ESDC and 42DP.
4. Site 8 South Declaration of Design, Use and Operation, dated as
of the date hereof, by and among ESCD, 42DP and Developer.
5. Site 8 South Project Agreement, dated as of the date hereof, by
and among ESDC, 42DP, The City of New York, Developer, NYT Real Estate Company
LLC ("NYTC Member") and FC Lion LLC ("FC Member").
6. Agreement of Sublease (NYT), dated as of the date hereof, by and
between Developer and NYTC Member.
7. Agreement of Sublease (Retail), dated as of the date hereof, by
and between Developer and FC Member.
8. Agreement of Sublease (Office), dated as of the date hereof, by
and between Developer and FC Member.
9. Recognition Agreement (Public Parties), dated as of the date
hereof, by and among INGREDUS Site 8 South LLC, ING Vastgoed B B.V., FC 41st
Street Associates, LLC, FC Lion LLC, Developer, Forest City Xxxxxx Companies,
ESDC, and 42DP.
10. Agreement, dated as of the date hereof, by and among 42DP, The
New York City Transit Authority, Developer and The City of New York.
11. Vault Sublicense, dated as of the date hereof; by and among 42DP
and Developer.
EXHIBIT B
Intentionally Omitted
EXHIBIT C
FORM OF COLLATERAL ASSIGNMENT (ss. 1.1(a)(xxxix))
THIS AGREEMENT, made this _____ day of ____, _____, by and among
______________________________ ("THIRD PARTY"), a [insert State] [insert type of
entity] having an office at ______________, THE NEW YORK TIMES BUILDING LLC
("ASSIGNOR"), a ______________ having an office at c/o The New York Times
Company, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: General
Counsel, and 42ND ST. DEVELOPMENT PROJECT, INC. ("ASSIGNEE"), a subsidiary of
New York State Urban Development Corporation ("UDC") d/b/a Empire State
Development Corporation, a corporate governmental agency of the State of New
York constituting a political subdivision and public benefit corporation having
an office at 000 Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WITNESSETH
WHEREAS, UDC and The City of New York (the "CITY") have developed,
and are in the process of implementing, a rehabilitation and renewal plan for an
area of midtown Manhattan surrounding West 42nd Street between Broadway and
Eighth Avenue, commonly known as the 00xx Xxxxxx Development Project; and
WHEREAS, pursuant to an Agreement of Lease (the "GROUND LEASE") (the
terms defined therein and not otherwise defined herein being used herein as
therein defined), dated as of December __, 2001, between Assignee, as landlord,
and Assignor, as tenant, Assignee leased and demised to Assignor certain land
more particularly described in Exhibit G annexed to the Ground Lease (the
"PROPERTY") and all right, title and interest of Assignee in and to all
improvements thereon, for the development and operation of the Property in
accordance with the terms of the Ground Lease; and
WHEREAS, pursuant to the [construction agreement to be assigned]
(the "AGREEMENT"), dated as of ______, between Assignor and Third Party, Third
Party has agreed to provide [construction management] services in connection
with the Property; and
WHEREAS, as collateral security for payment and performance of
Assignor's obligations under the Ground Lease (the "OBLIGATIONS"), Assignor
desires to collaterally assign to Assignee all right, title and interest of
Assignor in and to the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto hereby
agree as follows:
1. Assignor and Third Party hereby consent to the collateral
assignment of the Agreement to Assignee pursuant to and on the terms and
conditions of this Agreement.
2. Third Party hereby agrees and confirms that the Agreement and all
of its rights and interests thereunder, including, but not limited to, rights to
payment or fees, are and, at all times shall be, subject and subordinate to the
Ground Lease.
3. Subject to the provisions of PARAGRAPH 4 hereof, Assignor hereby
grants, transfers and assigns to Assignee all of Assignor's right, title and
interest in and to, and the right to have uninterrupted use and enjoyment of the
benefits under, the Agreement and all present and future amendments thereto. The
foregoing assignment is subject to any assignment by Assignor of the Agreement
to any Recognized Mortgagee and the rights of any Recognized Mortgagee
thereunder. Assignor and Third Party covenant and agree to execute such further
and additional instruments and assignments as may be requested by Assignee to
vest in Assignee all rights and interest of Assignor under the Agreement. The
Agreement is assigned hereunder for the purpose of securing the payment and
performance by Assignor of its Obligations.
4. This Assignment is made upon the condition that for so long as
there shall be no Event of Default on the part of Assignor or reentry upon the
Property by Assignee pursuant to the terms of the Ground Lease, Assignor shall
have the right to exercise all rights, options and privileges extended to
Assignor under the terms of the Agreement. Such right of Assignor shall be
automatically revoked upon the occurrence of an Event of Default and thereafter,
subject to the rights of any Recognized Mortgagee to which the Agreement has
been assigned, the right is hereby expressly given to Assignee to enforce the
terms of the Agreement in the same manner and with the same force and effect as
if Assignee had originally executed the Agreement as the owner of the Property.
After the occurrence of an Event of Default and the failure of the Recognized
Mortgagee(s) to cure such Event of Default. Assignee may elect by written notice
to Third Party given within sixty (60) days after such failure by the Recognized
Mortgagee(s) (i) to terminate the Agreement effective upon such notice or (ii)
to assume all of the rights and obligations of Assignor under the Agreement. If
Assignee shall assume such rights and obligations, the Agreement shall thereby
be deemed amended to reflect the following:
(a) All rights, interests, benefits and other privileges of Assignor
under the Agreement shall terminate and Assignee shall succeed to and
shall have all the rights, interests, benefits and other privileges of
Assignor under the Agreement and Third Party shall perform all of its
obligations and agreements under the Agreement for the benefit of
Assignee. All references in the Agreement to Assignor shall be read to
apply to Assignee.
(b) Other than a monetary default by Assignor under the Agreement,
Assignee shall not be responsible or liable for any representation or
warranty made by Assignor or any act, omission or default by Assignor
which occurred prior to the assumption by Assignee of the Agreement, and
each such act, omission or default shall be deemed to have been waived by
Third Party and shall not constitute grounds for the termination of the
Agreement by Third Party or for any other claim or liability against
Assignee.
(c) The obligations, responsibilities and liabilities of Assignee
under the Agreement shall be limited to and enforceable only against
Assignee's interest in the Property and not out of or against any other
assets or properties of Assignee.
5. Assignor and Third Party, jointly and separately, hereby warrant
and represent to Assignee as follows:
(d) Each of them has the full and complete right, power and
authority to execute, deliver and perform this Assignment and has taken
all necessary corporate and partnership action, to authorize the
execution, delivery and performance of this Agreement;
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(e) Neither of them has made a prior assignment, pledge or
hypothecation of any of the rights under the Agreement except to a
Recognized Mortgagee;
(f) The Agreement is in full force and effect on the date hereof,
has not been amended or modified in any way and the performance of the
other party thereto is subject to no defenses, set-offs or counterclaims
whatsoever and this Assignment and the Agreement constitute the valid,
binding and enforceable obligations of the parties thereto;
(g) There exists no event, condition or occurrence which
constitutes, or which with notice and/or the passage of time would
constitute, a material breach of or default under any term or condition of
the Agreement; and
(h) Neither of them has done, nor shall either of them perform any
acts or omissions which might prevent Assignee from exercising its rights
under this Agreement, or which might limit Assignee in such exercise.
6. Assignor and Third Party agree faithfully to observe and perform
each and every one of the obligations and agreements imposed upon them under
the Agreement. From and after the date hereof and without the prior written
consent of Assignee, not to be unreasonably withheld or delayed, (a) no term or
provision of the Agreement (including any exhibit thereto) may be altered,
modified or amended in any material respect, (b) Assignor may not waive any
material right under the Agreement, (c) neither Assignor nor Third Party may
terminate or cancel the Agreement, and (d) neither Assignor nor Third Party may
assign any interest, right or obligation under the Agreement or consent to any
assignment by the other party of any such interest, right or obligation (other
than an assignment to a Recognized Mortgagee or to or by Assignee ), and any of
the foregoing acts, if done without such consent of Assignee, shall be null and
void AB INITIO.
7. Assignee shall not be obligated to perform or discharge, nor
shall it by acceptance of this Assignment be deemed in any manner to have
assumed any of the duties or obligations under, the Agreement or be under any
obligation to perform or discharge any of the obligations thereunder, unless and
until Assignee elects to assume, subject to PARAGRAPH 4(b) hereof, all of the
rights and obligations of Assignor under the Agreement, nor shall Assignee be
liable to any person by reason of any default by any party under the Agreement,
including any default by Assignor or any other person arising prior to such
assumption by Assignee. Assignor shall perform and discharge all such duties,
obligations, and liabilities and hereby agrees to indemnify and hold Assignee
harmless from and against any and all liability, loss, cost, damage or expense
(including, without limitation, reasonable attorneys' fees and expenses) which
Assignee may incur under or by reason of this Assignment, or for any action
taken by Assignee hereunder, or by reason of or in defense of any and all claims
and demands whatsoever which may be asserted against Assignee arising out of the
Agreement. In the event Assignee incurs any such liability, loss, cost, damage
or expense, the amount thereof together with all reasonable attorneys' fees and
disbursements shall be payable by Assignor to Assignee immediately, without
demand.
8. All notices and other communications required or permitted to be
given to, or served pursuant to, this Agreement, or otherwise, shall be in
writing and shall be deemed to have been duly given and delivered for all
purposes (a) when personally delivered to a party or authorized representative
of a party, (b) when received, if delivered by a nationally recognized overnight
courier service, delivery prepaid, (c) three (3) days after deposited in the
United States mail, if delivered by registered or certified United States mail,
postage prepaid, return receipt requested, or (d) when
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received, by telecopy (and confirmed by mail in the manner described above)
addressed to the party to be notified at such party's address set forth herein.
All notices and other communications under this Agreement shall be given to the
parties hereto at the address set forth below, or such other address as may be
specified in a notice designated as a notice of change of address.
if to Third Party:
-----------------------
-----------------------
-----------------------
-----------------------
with a copy to:
-----------------------
-----------------------
-----------------------
-----------------------
-----------------------
if to Assignor: The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax No. (__) ________
AND
c/o Forest City Xxxxxx
One Metro Tech Center, North
Brooklyn, New York 11201
Attention: General Counsel
Fax No. (__) ________
INGREDUS Site 8 South LLC
c/o Clarion Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxxxxx
Fax No. (__) ________
with copies to: The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Director of Real Estate
Fax No. (__) ________
INGREDUS Site 8 South LLC
c/o Clarion Partners
000 00xx Xxxxxx, X.X.
Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
Xxx: Xx. Xxxxxx Xxxxxxxxxx
Fax No. (__) ________
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Xxxxxxx Berlin Shereff Xxxxxxxx LLP
Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax No. (__) ________
Xxxxxx Xxxx Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax No. (__) ________
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
Fax No. (__) ________
if to Assignee: 00xx Xx. Development Project, Inc.
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
Fax No. (000) 000-0000
with copies to: New York City Economic Development
Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Fax No. (000) 000-0000
New York City Law Department
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief, Economic Development
Division
Fax No. (000) 000-0000
Xxxxxxx & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq. (3578/13)
Fax No. (000) 000-0000
Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxx Xxxxxxxx, Esq.
Fax No. (000) 000-0000
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New York State Urban Development Corporation
d/b/a Empire State Development Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: 42nd St. Development Project, Inc.
Fax No. (__) ________
No notice, demand, request or other communication hereunder shall be effective
unless given as aforesaid.
9. The acceptance of this Assignment shall not constitute a waiver
of any of the rights and remedies of Assignee under the Ground Lease. Further,
nothing contained in this Assignment and no act or action taken or done, or
omitted to be taken or done, by Assignee pursuant to the powers and rights
granted it hereunder shall be deemed to be a waiver by Assignee of any of its
rights and remedies against Assignor in connection with, or in respect of, any
of the Obligations. The right of Assignee to collect and enforce collection and
performance of the Obligations and to enforce any other security and collateral
therefor held by it may, to the extent permitted by law, be exercised by
Assignee either prior to, simultaneously with, or subsequent to any action taken
by Assignee hereunder.
10. Assignor shall execute and deliver, or cause to be executed and
delivered, to Assignee all other instruments, certificates and agreements as
Assignee may reasonably require, including, but not limited to, estoppel
certificates stating that this Assignment or the Agreement is in full force and
effect and that there are no defenses or offsets thereto (or if this Assignment
or the Agreement is not in full force and effect or there are any defenses or
offsets thereto, specifying in reasonable detail such matters), to effect,
confirm or assure the rights and remedies intended to be granted to Assignee
under this Assignment.
11. If all or any portion of any provision of this Assignment shall
be held to be invalid, illegal or unenforceable in any respect or in any
jurisdiction, then such invalidity, illegality or unenforceability shall not
affect any other provision hereof and such provision shall be limited and
construed in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion thereof were not contained herein.
12. This Assignment may not be changed or terminated except by an
agreement in writing, signed by the party against whom enforcement of the change
is sought. This Assignment shall be governed by and construed in accordance with
the law of the State of New York. All terms and words used in this Assignment,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
13. This Assignment shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns and
to the City of New York as holder of a reversionary estate in the Property.
14. No director, member, officer, employee, agent or other person
authorized to act on behalf of any of the parties to this Agreement shall have
any personal liability in connection with this Assignment or any failure of any
of the parties hereto to perform its respective obligations under this
Assignment. The liability of Assignor, EDC, ESDC, 42DP and the City under this
Assignment shall be limited pursuant to Article 18 of the Ground Lease. Nothing
in the foregoing,
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however, shall limit the liability of the guarantor under the Construction
Guaranty including, without limitation, for payments made by Assignee to Third
Party under the Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Assignment as of the day and year first above written.
THE NEW YORK TIMES BUILDING LLC
By: NYT Real Estate Company LLC,
member
By: __________________
Name:
Title: Manager
By: FC Lion LLC, member
By: FC 00xx Xxxxxx Associates,
LLC, its managing member
By: RRG 8 South, Inc., its
managing member
By:______________________
Name:
Title:
42ND ST. DEVELOPMENT
PROJECT, INC.
By: ______________________
Name:
Title:
[Name of Third Party]
By: ______________________
Name:
Title:
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EXHIBIT D
FORM OF CONDOMINIUM DECLARATION (ss. 1.1(a)(lii))
----------------------------------------
DECLARATION OF LEASEHOLD CONDOMINIUM
ESTABLISHING A PLAN OF LEASEHOLD CONDOMINIUM
OWNERSHIP OF PREMISES LOCATED ON THE EASTERLY SIDE OF
EIGHTH AVENUE BETWEEN 40th & 41st STREETS,
NEW YORK, NEW YORK
----------------------------------------
Name of
Condominium: The New York Times Building Condominium
Declarant: The New York Times Building LLC
having an address
c/o The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dated: _____________,____
Block: 1012
Lots: _____________,____
RECORD AND RETURN TO:
Xxxxx X. Xxxx, Esq.
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TABLE OF CONTENTS
PAGE
Article I SUBMISSION OF PROPERTY .......................................... 1
Article II DESCRIPTION OF PROPERTY AND BUILDING ............................ 1
Article III DEFINITIONS ..................................................... 2
Article IV THE UNITS ....................................................... 17
Section 1. Description of Units .................................... 17
Section 2. FC Collective Unit ...................................... 18
Section 3. FC Individual Units ..................................... 18
Section 4. NYTC Collective Unit .................................... 18
Section 5. NYTC Individual Units ................................... 18
Section 6. SPU Unit ................................................ 18
Section 7 Retail Unit ............................................. 18
Section 8. Unit Description ........................................ 18
Section 9. Acquisition by NYTC of any of the FC Individual Units ... 18
Article V COMMON ELEMENTS; NYTC LIMITED COMMON ELEMENTS;
FC LIMITED COMMON ELEMENTS ...................................... 18
Section 1. Common Interest in Common Elements ...................... 18
Section 2. Common Elements and Limited Common Elements to Remain
Undivided ............................................... 19
Section 3. Control Over Common Elements ............................ 19
Section 4. Control Over NYTC Limited Common Elements ............... 19
Section 5. Control Over FC Limited Common Elements ................. 19
Section 6. Revenue Derived from Common Elements .................... 19
Section 7. Revenue Derived from NYTC Limited Common Elements ....... 20
Section 8. Revenue Derived from FC Limited Common Elements ......... 20
Article VI OBLIGATIONS OF BOARD OF MANAGERS AND UNIT OWNERS;
SERVICE CONTRACTS ............................................... 20
Section 1. Board of Managers' Services; NYTC Board of Managers'
Services; FC Board of Managers' Services ................ 20
Section 2. Unit Owners' Obligations ................................ 21
Section 3. Service Contracts; Termination of Service Contracts
Relative to Common Elements, NYTC Limited Common
Elements or FC Limited Common Elements Upon Termination
of a Unit Lease ......................................... 21
TABLE OF CONTENTS
(CONTINUED)
PAGE
Article VII UNIT OWNER EXPENSES; BUDGETS .................................. 22
Section 1. Determination of Unit Owner Expenses ................... 22
Section 2. Expenditures ........................................... 23
Section 3. Statements; Unit Owner's Payments ...................... 24
Section 4. Special Assessments .................................... 25
Section 5. Delivery by Board of Managers, NYTC Board of Managers
and FC Board of Managers of Year-End Statements and
Reconciliation ......................................... 26
Section 6. Failure to Deliver a Statement Not Prejudicial ......... 26
Section 7. Books and Records ...................................... 26
Section 8. Estoppel Certificates Delivered by Board of Managers ... 27
Article VIII UTILITIES ..................................................... 28
Section 1. Electricity ............................................ 28
Section 2. Gas .................................................... 28
Section 3. Water .................................................. 29
Section 4. Payments Constitute a Unit Owner Expense ............... 29
Article IX PERMITTED USES; LICENSES AND PERMITS; BUILDING NAME;
SIGNAGE; ANTENNAE; REVENUE FROM SIGNAGE AND ANTENNAE .......... 29
Section 1. Permitted Uses ......................................... 29
Section 2. Licenses and Permits ................................... 30
Section 3. Building Name; Signage; Antennae ....................... 30
Section 4. Communications Equipment ............................... 33
Article X RIGHT TO MAKE ALTERATIONS, SUBDIVISIONS ....................... 34
Section 1. Right to Perform Work .................................. 34
Section 2. General Work Conditions ................................ 35
Section 3. Mechanic's Liens; Violations ........................... 36
Section 4. Board of Managers, NYTC Board of Managers, FC
Board of Managers and Other Unit Owners Not Liable ..... 37
Section 5. No Right to Subdivide; Amending Declaration to
Confirm Unit Descriptions .............................. 37
Article XI ENCROACHMENTS; EASEMENTS; ACCESS .............................. 38
Section 1. Encroachments .......................................... 38
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 2. Easements and Rights of the Board of Managers,
NYTC Board of Managers and FC Board of Managers ........ 38
Section 3. Easements of all Unit Owners ........................... 39
Section 4. General ................................................ 40
Article XII ATTORNEYS-IN-FACT ............................................... 41
Article XIII PERSON TO RECEIVE SERVICE ...................................... 41
Article XIV ADMINISTRATION .................................................. 42
Article XV UNIT OWNERSHIP ................................................... 42
Article XVI GRANTEE LIABLE FOR UNPAID ASSESSMENTS UPON SALE ................. 42
Article XVII AMENDMENT OF DECLARATION ....................................... 42
Section 1. General Provisions Regarding Amendment .................. 42
Section 2. Execution and Delivery of Amendments .................... 43
Article XVIII TERMINATION OF CONDOMINIUM; PURCHASE OPTION UNDER
GROUND LEASE ............................................. 43
Section 1. Withdrawal by Unit Owners ............................... 43
Section 2. Purchase Option Under Unit Leases ....................... 43
Article XIX COVENANT OF FURTHER ASSURANCES .................................. 44
Article XX SALES, SUBLEASES AND MORTGAGES ................................... 44
Section 1. Unit Owners' Rights to Sell, Sublease or Mortgage
Units .................................................. 44
Section 2. FC Unit Owners' Lockout Period ......................... 45
Section 3. NYTC's Right of First Refusal and Right of First
Offer to Purchase FC Individual Unit(s) ................ 46
Section 4. NYTC's Purchase Options ................................ 50
Section 5. NYTC's Subleasing Options .............................. 52
Section 6. NYTC's Option to Sublease v. Purchase .................. 55
Section 7. Agreement to Execute Supplemental Agreement ............ 57
Section 8. Fair Market Value; Fair Market Rent .................... 57
Section 9. Registered Mortgagee Requirements; Rights of
Registered Mortgagees .................................. 60
Section 10. Binding Effect ......................................... 63
Section 11. No Severance of Ownership .............................. 64
Section 12. Compliance With Unit Leases; Conveyance of Unit
Lease is Conveyance of Unit ............................ 64
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Article XXI DEFAULTS; REMEDIES ............................................ 64
Section 1. Events of Default ....................................... 64
Section 2. Board of Managers' Rights to Cure ....................... 65
Section 3. Remedies ................................................ 65
Section 4. Defaulting Unit Owner's and Representative Manager's
Inability to Vote; Limitations on Ability of
Non-Defaulting Unit Owners, Acting Alone, to
Amend Declaration ....................................... 66
Section 5. Ground Lessee's Right to Cure; Ground Lessee's Right
to Vote in Lieu of Defaulting Unit Owner, Following
Cure by Ground Lessee ................................... 66
Section 6. Board of Managers' Lien ................................. 67
Section 7. Title of Board of Managers on Foreclosure ............... 67
Section 8. Declaration by Ground Lessee of an Event of Default
Under Unit Leases ....................................... 68
Article XXII INTERESTS OF OWNERS, TENANTS AND OCCUPANTS SUBJECT
AND SUBORDINATE TO DECLARATION AND GROUND LEASE ............... 68
Article XXIII MISCELLANEOUS ................................................. 68
Section 1. No Personal Liability; Ground Lessee Beneficiary
of Rights Granted Ground Lessee ......................... 68
Section 2. Declaration Not Modifying Terms of Ground Lease
or Unit Leases .......................................... 69
Section 3. Compliance with Unit Leases ............................. 69
Section 4. Amendments to Unit Leases ............................... 69
Section 5. Captions, Exhibits ...................................... 69
Section 6. Certain References ...................................... 69
Section 7. Governing Law ........................................... 70
Section 8. Severability ............................................ 70
Section 9. Waiver .................................................. 70
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EXHIBIT A DESCRIPTION OF PROPERTY
EXHIBIT B BY-LAWS OF THE NEW YORK TIMES BUILDING ASSOCIATION,
INC. A New York not-for-profit corporation
EXHIBIT C
EXHIBIT D DISPROPORTIONATE ALLOCATION OF EXPENSES AMONG UNITS
EXHIBIT E LIST OF PLANS
EXHIBIT F-1 DESCRIPTIONS OF FC INDIVIDUAL UNITS
EXHIBIT F-2 DESCRIPTIONS OF NYTC INDIVIDUAL UNITS
EXHIBIT G FIRST BUDGET
EXHIBIT H-1 SIGNAGE LOCATIONS
EXHIBIT H-2 INTERIOR SIGNAGE LOCATIONS
EXHIBIT H-3 CANOPIES & AWNINGS
EXHIBIT I - PROHIBITED USERS/USES
EXHIBIT J FORM OF SALE AND PURCHASE AGREEMENT
EXHIBIT K FORM OF NYTC PURCHASE GUARANTY UNIT PURCHASE GUARANTY
EXHIBIT L FORM OF NYTC SUBLEASE
EXHIBIT M FORM OF NYTC LEASE GUARANTY
EXHIBIT N SECURITY AND SAFETY PLAN
EXHIBIT 0 FORM OF NYTC WAIVER AND ESTOPPEL LETTER
DECLARATION OF LEASEHOLD CONDOMINIUM
OF THE NEW YORK TIMES BUILDING CONDOMINIUM
(PURSUANT TO ARTICLE 9-B OF THE
REAL PROPERTY LAW OF THE STATE OF NEW YORK)
Declaration made as of the ___day of___, _____, by The New York
Times Building LLC, a New York limited liability company with an address c/o The
New York Times Company, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as the "Declarant").
ARTICLE I
SUBMISSION OF PROPERTY
Declarant hereby submits the Property (as hereinafter defined) to
the provisions of Article 9-B of the Real Property Law of the State of New York
(as heretofore amended, and as the same may hereafter be amended from time to
time, the "CONDOMINIUM LAW") and, pursuant thereto, does hereby establish a
leasehold condominium to be known as The New York Times Building Condominium.
Throughout this Declaration and the exhibits attached hereto,
certain terms are used to describe ownership of the leasehold condominium units
and the rights of the owners in and to such leasehold units. While the use of
terms such as "owner" and "ownership" may suggest otherwise, the condominium
units created pursuant to this Declaration are leasehold units which have been
demised to the tenants under Unit Leases (hereinafter defined). As set forth in
subparagraph (164) of ARTICLE III hereof, "Unit Owner" shall mean, with respect
to any Unit, (a) for so long as a Unit Lease for such Unit is in effect, the
tenant (from time to time) under such Unit Lease, and (b) if a Unit Lease is
terminated by Ground Lessee or otherwise, the Ground Lessee. Accordingly, a Unit
cannot be conveyed separately from the Unit Lease for such Unit (i.e., a Unit
Owner shall transfer its tenant's interest under its Unit Lease in order to
transfer its Unit or Units). This Declaration does not impose a condominium on
the fee interest in the Premises, and, except as provided in SECTION 2 of
ARTICLE XVIII, no reference herein to "ownership", "conveyance", "sale",
"purchase" or like terms shall refer to such fee interest.
ARTICLE II
DESCRIPTION OF PROPERTY AND BUILDING
The property hereby submitted to a condominium regime (the
"PROPERTY") is comprised of (a) Declarant's leasehold interest, as tenant under
the Ground Lease (as hereinafter.
defined), in and to (x) the land more particularly described on EXHIBIT A
attached hereto (the "LAND"), (y) the building and all other structures and
improvements situated or to be erected on the Land (such structures and
improvements being hereunder referred to as the "BUILDING"), and (z) all
Alterations (as hereinafter defined) hereinafter made to the Building (the Land,
Building and Alterations are hereinafter collectively referred to as the
"PREMISES"), and (b) all of the easements, rights and appurtenances belonging or
appurtenant to any of the foregoing. The Building contains [___________
above-grade floors (containing approximately ____ square feet of space) and
approximately __________ square feet of below-grade space and is constructed of,
INTER ALIA, [insert description of Building]](1).
ARTICLE III
DEFINITIONS
As used herein, the following terms shall have the following
meanings:
1. "AAA" shall have the meaning ascribed to such term in Article IX
of the ByLaws.
2. "ACCEPTANCE NOTICE" shall have the meaning ascribed to such term
in SECTION 5(d) of ARTICLE XX hereof.
3. "AFFILIATE" shall mean, as used with respect to any Person, any
other Person directly or indirectly controlling, controlled by or under common
control with, such Person. For purposes of this definition, the term "control"
(including the correlative meanings of the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
(a) the possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise, PROVIDED (but
without limiting the foregoing) that no pledge of voting securities of any
Person without the current right to exercise voting rights with respect thereto
shall by itself be deemed to constitute control over such Person, and (b)
ownership in such Person of fifty-one percent (51%) or more of all equity,
capital and profits interests.
4. "ALTERATIONS" shall mean all alterations, installations,
additions and improvements performed (from time to time) in or to all or any
portion of any Unit, the Common Elements, the NYTC Limited Common Elements and
the FC Limited Common Elements, in each case other than alterations of a de
minimus or decorative nature.
5. "ANNIVERSARY DATE" shall have the meaning ascribed to such term
in SECTION 4(h) of ARTICLE XX hereof
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(1) To be filled-in and completed prior to execution.
2
6.
7. "APPOINTMENT DATE" shall have the meaning ascribed to such term
in ARTICLE IX of the By-Laws.
8. "ARBITRATION NOTICE" shall have the meaning ascribed to such term
in ARTICLE IX of the By-Laws.
9. "ARBITRATOR" shall have the meaning ascribed to such term in
ARTICLE IX of the By-Laws.
10. "ASSOCIATION" means The New York Times Building Association,
Inc., a New York not-for-profit corporation responsible for the administration
of the Condominium.
11. "AVAILABILITY DATE" shall have the meaning ascribed to such term
in SECTION 5(d) of ARTICLE XX hereof.
12. "BOARD OF MANAGERS" shall mean the board of managers of the
Association representing the Unit Owners and elected in accordance with the
By-Laws.
13. "BOARD OF MANAGERS' LIEN" shall mean a lien on the interest of a
delinquent Unit Owner in its Unit in the amount of all unpaid Unit Owner
Expenses and all other unpaid sums due to the Board of Managers from such
defaulting Unit Owner under this Declaration or the By-Laws, together with
interest on such unpaid Unit Owner Expenses and other unpaid sums at the
Interest Rate from their original due date.
14. "BOARD OF MANAGERS' SERVICES" shall mean the Services in Respect
of the Common Elements and any additional or substitute services provided by or
on behalf of the Board of Managers at the request of a Majority in Interest of
the Unit Owners.
15. "BOARD OF MANAGERS' STATEMENT" shall have the meaning ascribed
to such term in ARTICLE VII hereof.
16. "BREAKAGE COSTS" is defined in SECTION 6 of ARTICLE XX hereof.
17. "BUDGET" shall have the meaning ascribed to such term in ARTICLE
VII hereof.
18. "BUILDING" shall have the meaning ascribed to such term in
ARTICLE II hereof.
19. "BUILDING SYSTEMS" shall mean each of the following systems
servicing the Building (except if the same is an NYTC System, an SPU System, an
FC System or a Retail System): (a) the heating system of the Building (including
the Building boiler and circulating pumps), but excluding the branch systems
from and after the point of entry to or exit from any Unit; (b) the electrical
system of the Building (including any and all switchboards, feeders,
transformers and meters), up to the main disconnect switch at the switchboard
serving the elements of any Unit; (c) the plumbing and sanitary systems of the
Building, but excluding any branch systems and pipes from and after the point of
entry to or exit from any Unit; (d) the main telephone switching equipment and
closet for the Building; (e) the emergency generator, panel
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and system for the Building, up to the distribution switch for any Unit; (f) the
sprinkler system for the Building, up to the point of entry to any Unit; and (g)
to the extent not specifically identified as part of or servicing only a
particular Unit, all other equipment, apparatus and installations the common use
of which is necessary or convenient for the existence, maintenance or safe
operation of more than one (1) Unit.
20. "BUSINESS DAY" means any day which is not a Saturday, a Sunday
or a day observed as a holiday by either the State of New York or the federal
government of the United States.
21. "BUSINESS HOURS" means the hours from 8:00 AM to 7:00 PM in New
York, New York.
22. "BY-LAWS" shall mean the by-laws attached hereto as EXHIBIT B,
as the same may from time to time be amended in accordance with ARTICLE VIII
thereof.
23. "CERTIFYING PROFESSIONAL" shall mean an architect or a licensed
professional engineer or engineering or construction consulting firm that
provides engineering and/or architectural services, which is experienced in the
design and operation in the City of New York of structures similar to the
Building and has provided services comparable to those being requested hereunder
at any time during the immediately preceding three (3) years, selected by the
Board of Managers and approved by Ground Lessee if and to the extent required
under the Unit Leases.
24. "COMMERCIAL SIGNAGE" means all Signage other than NYTC Signage,
NYTC Office Signage, FC Office Signage, Retail Signage and SPU Signage, but
including any NYTC Signage which NYTC has elected to convert to Commercial
Signage and as to which an FC Unit Owner has opted to participate pursuant to
SECTION 3(b) of ARTICLE IX hereof.
25. "COMMON AREAS" shall mean those portions of the Premises that
are designated as "Common" on the Plans, including without limitation, the Roof
Top Garden Space and Lobby Sublease Space and those portions of the ground floor
building lobby not otherwise designated as FC Limited Areas or NYTC Limited
Areas.
26. "COMMON ELEMENTS" shall mean (1) the Land and all parts of the
Building and other improvements thereon, other than the Units, NYTC Limited
Common Elements and FC Limited Common Elements, including: (a) the Common Areas;
(b) the Building Systems; and (c) whether or not the same are located within any
of (and whether or not the same are shown on the Plans as) the Common Areas: (i)
the curtain wall of the Building, but excluding (y) any plate glass windows and
storefront space enclosing (and any ground floor doors or revolving doors
providing access to) either the Retail Unit or the SPU Unit, as applicable, and
(z) Signage; (ii) the foundations, columns, girders, beams, supports, concrete
floor slabs and other structural components of the Building; (iii) subject to
subclauses clauses (i)(y) and (i)(z) of this clause (c), the walls, partitions
and doors separating the Units from the Common Areas; (iv) all roofs of the
Building; (v) all stairs, stairways, escalators and elevators other than those
identified on the Plans solely as part of the FC Collective Unit, NYTC
Collective Unit, Retail Unit or SPU Unit, as the case may be, or located in and
exclusively serving the FC Collective Unit, NYTC Collective
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Unit, Retail Unit or SPU Unit, as the case may be; (vi) all sidewalks, including
cobble strip and paving, surrounding the Building and plaza areas; (vii) the
loading docks for the Building; (viii) subject to subclauses (i) (y) and (i) (z)
of this clause (c), the exterior facade of the Building; and (ix) all other
parts of the Premises the common use of which is necessary or convenient for the
existence, maintenance or safe operation of the Units and intended solely for
the common use of all or a portion of more than one of the FC Collective Unit,
the NYTC Collective Unit, the Retail Unit or the SPU Unit, and (2) the leasehold
estate in the Property created and demised pursuant to the Ground Lease.
27. "COMMON INTEREST" shall mean the undivided percentage leasehold
interest of each Unit Owner in the Common Elements, which is specified as a
percentage in EXHIBIT C to this Declaration.
28. "CONDOMINIUM" shall mean The New York Times Building Condominium
established pursuant hereto.
29. "CONDOMINIUM LAW" shall have the meaning ascribed to such term
in ARTICLE I hereof.
30. "COURT" shall have the meaning ascribed to such term in ARTICLE
IX of the ByLaws.
31. "CPI ADJUSTMENT" shall mean an amount equal to the product of
(x) the amount which is subject to adjustment and (y) a fraction, the numerator
of which is the CPI for the December immediately preceding the year (the "Budget
Adjustment Year") for which the adjustment in question is being made, minus the
CPI for December of the year of the then most recently approved Budget (or the
December before that if the year of the then most recently approved Budget is
the year immediately preceding the Budget Adjustment Year), and the denominator
of which is the CPI for December in the year of the then most recently approved
Budget (or the December before that if the year of the then most recently
approved Budget is the year immediately preceding the Budget Adjustment Year).
"CPI" shall mean the Consumer Price Index for All Urban Consumers published by
the Bureau of Labor Statistics of the United States Department of Labor, New
York, N.Y. -- Northeastern N.J. Area, All Items (1982-84=100), or any successor
index thereto, appropriately adjusted. In the event that the CPI is converted to
a different standard reference base or otherwise revised, the determination of
adjustments provided for herein shall be made with the use of such conversion
factor, formula or table for converting the CPI as may be published by the
Bureau of Labor Statistics or, if said Bureau shall not publish the same, then
with the use of such conversion factor, formula or table as may be published by
Prentice Hall, Inc. or any other nationally recognized publisher of similar
statistical information. If the CPI ceases to be published, and there is no
successor thereto, such other index as the Board of Managers shall agree upon
shall be used for the CPI.
32. "DECLARANT" shall mean The New York Times Building LLC and its
successors and assigns.
33. "DECLARATION" shall mean this instrument and the By-Laws annexed
hereto, as each may from time to time be amended.
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34. "DEFAULT PERIOD" shall have the meaning ascribed to such term in
Section 6 of Article XX hereof
35. "DEPOSITARY" shall mean any entity, agreeing for the benefit of
the Unit Owners, to perform the obligations of depositary hereunder on
substantially the terms of the Depositary Agreement, which (A) (1) is a
Registered Mortgagee (PROVIDED that such Registered Mortgagee is designated as
the Depositary and would qualify as an Lending Institution, but is other than a
savings bank or savings and loan association), (2) if not a Registered
Mortgagee, is a commercial bank or trust company qualifying as an Lending
Institution designated by the Registered Mortgagee most senior in lien, or (3)
if not the Registered Mortgagee or designated by the Registered Mortgagee
pursuant to clause (2) above, is a commercial bank or trust company qualifying
as an Lending Institution designated by the Board of Managers, (B) has an office
in the City of New York, and (C) has a net worth of not less than One Hundred
Million Dollars ($100,000,000) and net assets of not less than Two Hundred Fifty
Million Dollars ($250,000,000) (as such sums shall be adjusted by the CPI
Adjustment from the date hereof) throughout the period during which it acts as
the Depositary. If, at any time, no Lending Institution is so acting, then the
Board of Managers shall designate as the Depositary an unaffiliated third party
that is ordinarily engaged in the business of acting as a depositary. The Unit
Owners agree that _______________ shall be the initial Depositary.
36. "DEPOSITARY AGREEMENT" shall have the meaning ascribed to such
term in Section 2 of Article VII of the By-Laws.
37. "DUO" shall have the meaning ascribed to such term in the Unit
Leases.
38. "EXCESS SITE ACQIUISITION COSTS" shall have the meaning ascribed
to such term in the Site 8 South Land Acquisition and Development Agreement
dated as of December ___, 2001 by and among New York State Urban Development
Corporation d/b/a Empire State Development Corporation, Ground Lessor and
Declarant.
39. "EVENT OF DEFAULT" shall have the meaning ascribed to such term
in SECTION 1 of ARTICLE XXI hereof.
40. "FAIR MARKET RENT" is defined in SECTION 8 of ARTICLE XX hereof.
41. "FAIR MARKET VALUE" is defined in SECTION 8 of ARTICLE XX
hereof.
42. "FAMILY MEMBER" shall mean, as to any individual, any parent,
spouse, sibling, child, grandchild, aunt, uncle, niece, nephew or cousin, or any
step-child or step-grandchild thereof (including, in any such case,
relationships established by adoption).
43. "FC AREAS" shall mean those portions of the Premises designated
as "FC -- Tax Lot Nos. _____" on the Plans (exclusive of any Common Elements or
FC Limited Common Elements contained therein).
44. "PC BOARD OF MANAGERS" means the board of managers representing
the FC Unit Owners, collectively, and elected in accordance with the By-Laws.
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45. "FC COLLECTIVE UNIT" means, collectively, the FC Areas and the
FC Limited Common Elements.
46. "FC COLLECTIVE UNIT EXPENSES" shall mean, as to each FC Unit
Owner, an amount equal to such FC Unit Owner's share (based upon the proportion
that its Common Interest bears to the aggregate Common Interest attributable to
the FC Collective Unit) of all costs and expenses (including taxes) paid or
incurred by or on behalf of the FC Board of Managers in connection with or
arising from the operation and management of the FC Collective Unit (including,
without limitation, any such costs and expenses assessed as Special
Assessments).
47. "FC INDIVIDUAL UNIT" shall mean (a) full floor portions of the
FC Areas designated as FC Individual Units on EXHIBIT F-1 attached hereto
(exclusive of any Common Elements or FC Limited Common Elements contained
therein), and (b) the portions of the FC Systems solely serving such portions of
the FC Areas.
48. "FC INDIVIDUAL UNIT SALE" shall have the meaning ascribed to
such term in SECTION 3 of ARTICLE XX hereof.
49. "FC LIMITED AREAS" shall mean those portions of the Premises
designated as "FC LIMITED AREAS" on the Plans.
50. "FC LIMITED COMMON ELEMENTS" shall mean (a) the FC Limited
Areas; (b) the FC Systems; and (c) whether or not the same are located within
any of (and whether or not the same are shown on the Plans as) the FC Areas or
the FC Limited Areas: (i) the walls, partitions and doors separating the FC
Individual Units from the FC Areas and/or the FC Limited Areas; (ii) all stairs,
stairways, escalators and elevators solely serving all or a portion of the FC
Collective Unit other than those identified on the Plans solely as part of one
FC individual Unit or located in and exclusively serving one FC Individual Unit;
and (iii) all other parts of the FC Collective Unit the common use of which is
necessary or convenient for the existence, maintenance or safe operation of the
FC Individual Units and intended solely for the common use of more than one FC
Individual Unit.
51. "FC OFFICE SIGNAGE" shall have the meaning ascribed to such term
in SECTION 3(b) of ARTICLE IX hereof.
52. "FC SYSTEMS" shall mean all utilities, systems and fixtures
(including, without limitation, all plumbing systems, heating systems,
electrical branches and systems, air conditioning systems, telephone and data
transmission systems and facilities, cable and/or satellite television systems,
and all fire safety/life safety systems) exclusively serving all or a portion of
the FC Collective Unit.
53. "FC UNIT LEASE" shall mean, collectively or individually, as the
case may be (i) that certain sublease pertaining to the FC Collective Unit dated
as of December ___, 2001 between Declarant, as sublandlord, and FC Lion LLC, as
subtenant, a memorandum of which was recorded on __ _________, 200_ in the
Register's Office at Reel ___, Page ____, and an amended memorandum of which
will be recorded promptly following the recordation of this Declaration, as said
sublease may be assigned, amended, supplemented and/or restated from time
7
to time as permitted hereunder, (ii) that certain sublease pertaining to the
Retail Unit dated as of December ___,2001 between Declarant, as sublandlord, and
FC Lion LLC, as subtenant, a memorandum of which was recorded on________________
_________________________, 200__ in the Register's Office at Reel ___, Page
____, and an amended memorandum of which will be recorded promptly following the
recordation of this Declaration, as said sublease may be assigned, amended,
supplemented and/or restated from time to time as permitted hereunder, (iii) any
new sublease(s) entered into by Declarant or Ground Lessee with respect to one
(1) or more FC Individual Units in accordance with the provisions of the FC Unit
Lease described in the preceding subclause (i) (a "NEW OFFICE SUBLEASE"), and
(iv) any new sublease(s) entered into by Ground Lessee with a Registered
Mortgagee (or its nominee or designee) in accordance with the applicable
provisions of any of the FC Unit Leases described in the preceding subclauses
(i), (ii) or (iii).
54. "FC UNIT OWNER(S)" shall mean (a) for so long as a Unit Lease is
in effect with respect to any FC Individual Unit, the tenant (from time to time)
under such Unit Lease, including any Registered Mortgagee (or its designee or
nominee) succeeding to the tenant's interest under the Unit Lease by foreclosure
or by deed-in-lieu (or assignment-in-lieu) of foreclosure or entering into a new
Unit Lease with Ground Lessee as provided in (and in accordance with the
applicable provisions of) the terminated Unit Lease, and (b) from and after the
termination of the Unit Lease for the FC Collective Unit by Ground Lessee or
otherwise, until a Unit Lease is again in effect for the FC Collective Unit,
Ground Lessee. All references to the FC Unit Owner shall include the successors
and permitted assigns of such Person.
55. "FC UNIT OWNER INTEREST SALE" shall have the meaning ascribed to
such term in SECTION 3 of ARTICLE XX hereof.
56. "FIRST OFFER NOTICE" shall have the meaning ascribed to such
term in SECTION 5(d) of ARTICLE XX hereof.
57. "FIRST OFFER SPACE" shall have the meaning ascribed to such term
in SECTION 5(d) of ARTICLE XX hereof.
58. "FIRST SUBLEASE COMMENCEMENT DATE" shall have the meaning
ascribed to such term in SECTION 4(a) of ARTICLE XX.
59. "GAAP" shall mean generally accepted accounting principles,
consistently applied.
60. "GOVERNMENTAL AUTHORITIES" shall have the meaning ascribed to
such term in the definition of Laws.
61. "GROUND LEASE" shall mean that certain Ground Lease dated as of
December _____, 2001 between 42nd St. Development Project, Inc. ("42DP"), as
lessor, and Declarant, as lessee, as the same may be hereafter amended in
accordance with the provisions thereof, the lessee's interest under which is
intended to be assigned by Declarant to 42DP subject to this Declaration (as a
separate and distinct interest not to be merged with the lessor's interest)
immediately following the recordation of this Declaration. A memorandum of the
Ground Lease
8
was recorded in the Register's Office on ___, 200__ at Reel _______, Page.
62. "GROUND LESSEE" shall mean the tenant under the Ground Lease
from time to time.
63. "GROUND LESSOR" shall mean the landlord under the Ground Lease
from time to time.
64. "INITIAL OCCUPANCY TENANT" shall have the meaning ascribed to
such term in SECTION 5(d) of ARTICLE XX hereof.
65. "INSURANCE REQUIREMENTS" shall mean all requirements of any
insurance policy required to be carried pursuant to the By-Laws or any Unit
Lease and covering or applicable to all or any part of the Premises or the use
thereof, all requirements of the issuer of any such policy and all orders,
rules, regulations and other requirements of the New York Board of Fire
Underwriters or any other body exercising the same or similar functions and
having jurisdiction of all or any portion of the Premises.
66. "INTEREST RATE" shall mean a rate per annum equal to the lesser
of (i) three (3) percentage points above the rate publicly announced from time
to time by Citibank, N.A. (or its successor) in New York, New York as its "prime
rate" or "base rate" or (ii) the maximum rate permitted by applicable law with
respect to the applicable amount payable hereunder.
67. "INTERIM NYTC SUBLEASE" shall have the meaning ascribed to such
term in Section 6 of Article XX hereof.
68. "INTERIM SUBLEASE OPTION" shall have the meaning ascribed to
such term in Section 6 of Article XX hereof.
69. "LAND" shall have the meaning ascribed to such term in ARTICLE
II hereof.
70. "LAWS" (or, if used individually, "LAW") shall mean all laws,
statutes and ordinances (including building codes and zoning ordinances) and the
orders, rules, regulations, directives and requirements of all federal, state,
county, city and borough departments, bureaus, boards, agencies, offices,
commissions and other subdivisions thereof, or of any official thereof, or of
any other governmental, public or quasi-public body or authority (collectively,
"GOVERNMENTAL AUTHORITIES"), whether in force as of the date hereof or
hereafter, which are or become, or purport to be, applicable to the Premises or
any part thereof or the sidewalks, curbs or areas adjacent thereto.
71. "LENDING INSTITUTION" shall mean (A) a savings bank, savings and
loan association, commercial bank or trust company (whether acting individually
or in a fiduciary capacity), (B) an insurance company, (C) a real estate
investment trust, a trustee or issuer of collateralized mortgage obligations, a
loan conduit, or other similar investment entity which is listed on the New York
Stock Exchange, American Stock Exchange or other regional exchange (or their
respective successors), (D) a federal, state, municipal or secular employee's
welfare, benefit, pension or retirement fund, a religious, educational or
eleemosynary institution, any
9
governmental agency or entity insured by a governmental agency, a credit union,
trust or endowment, (E) any combination of the foregoing entities or (F) any
other Person approved by Ground Lessor; PROVIDED that each of the above entities
shall qualify as a Lending Institution within the provisions of this definition
only if it (1) shall be subject to the jurisdiction of the courts of the State
of New York, (2) shall be subject to the supervision of the Comptroller of the
Currency of the United States, the federal Securities and Exchange Commission,
the Insurance Department or the Banking Department or the Comptroller of the
State of New York, the Board of Regents of the University of the State of New
York, or the Comptroller of the City or any federal, state or municipal agency
or public benefit corporation or public authority advancing or assuring mortgage
loans or making payments which, in any manner, assist in the financing,
development, operation and maintenance of improvements, (3) shall have a net
worth of not less than One Hundred Million Dollars ($100,000,000) and net
assets of not less than Two Hundred Fifty Million Dollars ($250,000,000) (as
such amounts shall be adjusted for inflation on an annual basis) at the time of
the initial determination of its status as a Lending Institution, (4) is not an
Affiliate of any Unit Owner, and (5) is not a Prohibited Person (as defined in
the Ground Lease).
72. "LIBOR" means the rate per annum published on the date one (1)
Business Day immediately preceding the first day of the relevant period, as
reported (currently in the section entitled "Money Rates") in The New York Times
as the one (1) month London Interbank Offered Rate for U.S. Dollar deposits (or
if The New York Times shall cease to be publicly available, then LIBOR shall be
as reported by any publicly available source of similar market data selected by
the Members that, in the Members' reasonable judgment, accurately reflects such
London Interbank Offered Rate).
73. "LOBBY SUBLEASE SPACE" shall mean up to 600 square feet of space
located in the lobby of the Building, as more particularly designated on the
Plans.
74. "LOCKOUT EXPIRATION DATE" shall have the meaning ascribed to
such term in Section 6 of Article XX hereof.
75. "LOCKOUT PERIOD" shall have the meaning ascribed to such term in
Section 2 of ARTICLE XX hereof.
76. "MAJORITY IN INTEREST OF THE FC UNIT OWNERS" shall mean FC Unit
Owners holding in the aggregate a Common Interest of fifty-one percent (51%) or
more of the Common Interest attributable to all FC Individual Units,
collectively.
77. "MAJORITY IN INTEREST OF THE NYTC UNIT OWNERS" shall mean NYTC
Unit Owners holding in the aggregate a Common Interest of fifty-one percent
(51%) or more of the Common Interest attributable to all NYTC Individual Units,
collectively.
78 "MAJORITY IN INTEREST OF THE UNIT OWNERS" shall mean Unit Owners
holding in the aggregate a Common Interest of seventy-five percent (75%) or more
provided, however, that for so long as NYTC holds leasehold title to Units in
the Building whose total Common Interests in the aggregate equal or exceed
twenty percent (20%) of all Common Interests, then a Majority
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in Interest of the Unit Owners shall in any event include NYTC (i.e., any action
to be taken or approved by a Majority in Interest of the Unit Owners must be
approved by NYTC).
79. "MANAGER" shall mean any member of the Board of Managers, the
NYTC Board of Managers or the FC Board of Managers, from time to time, and
elected pursuant to the terms of the By-Laws.
80. "MANAGEMENT CONTROL" shall mean the ability to control
management affairs and day-to-day operations relating to the Unit in question.
81. "MATERIAL AMENDMENT" shall mean any supplement, amendment or
modification of this Declaration or of the By-Laws which (i) conflicts with any
provision of any Unit Lease, (ii) could reasonably have a materially adverse
effect upon Ground Lessee, (iii) alters EXHIBIT C attached hereto, (iv) alters
EXHIBIT D attached hereto (or the way in which Unit Owner Expenses are allocated
among the Unit Owners), or (v) is of the nature described in the first sentence
of SECTION 5(b) of ARTICLE X hereof.
82. "MINOR ALTERATIONS" shall mean any alterations, additions or
improvements to any Unit (and performed within such Unit) which will not (i)
exceed the design criteria of any of the Common Elements, the NYTC Limited
Common Elements and the FC Limited Common Elements (including any of the
Building's electrical, plumbing, HVAC or sanitary sewer, communications, fire
safety or sprinkler systems), (ii) when performed by or on behalf of a Unit
Owner, interrupt or interfere with the use or enjoyment by any other Unit Owner
(or its tenants or occupants or guests) of its Unit, or (iii) increase Unit
Owner Expenses.
83. "NEW OFFICE SUBLEASE" shall have the meaning ascribed to such
term in subparagraph (50) of ARTICLE III hereof.
84. "NYTC" shall mean The New York Times Company, any successor
thereto by merger or by operation of law, and any Affiliate thereof.
85. "NYTC AREAS" shall mean those portions of the Premises
designated as "NYTC -- Tax Lot Nos. _______" on the Plans (exclusive of any
Common Elements or NYTC Limited Common Elements contained therein).
86. "NYTC BOARD OF MANAGERS" means the board of managers
representing the NYTC Unit Owners, collectively, and elected in accordance with
the By-Laws.
87. "NYTC COLLECTIVE UNIT" means, collectively, the NYTC Areas and
the NYTC Limited Common Elements.
88. "NYRC COLLECTIVE UNIT EXPENSES" shall mean, as to each NYTC Unit
Owner, an amount equal to such NYTC Unit Owner's share (based upon the
proportion that its Common Interest bears to the aggregate Common Interest
attributable to the NYTC Collective Unit) of all costs and expenses (including
taxes) paid or incurred by or on behalf of the NYTC Board of Managers in
connection with or arising from the operation and management of the NYTC
Collective Unit (including, without limitation, any such costs and expenses
assessed as Special Assessments).
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89. "NYTC COMPETING USER" shall have the meaning ascribed to such
term in SECTION 1 of ARTICLE XX hereof.
90. "NYTC INDIVIDUAL UNIT" shall mean (a) full floor portions of the
NYTC Areas designated as such on EXHIBIT F-2 attached hereto (exclusive of any
Common Elements and NYTC Limited Common Elements contained therein), and (b) the
portions of the NYTC Systems solely serving such portion of the NYTC Areas.
91. "NYTC LEASE GUARANTY" shall have the meaning ascribed to such
term in SECTION 5(a) of ARTICLE XX hereof.
92. "NYTC LIMITED AREAS" shall mean those portions of the Premises
designated as "NYTC LIMITED AREAS" on the Plans.
93. "NYTC LIMITED COMMON ELEMENTS" shall mean (a) the NYTC Limited
Areas; (b) the NYTC Systems; and (c) whether or not the same are located within
any of (and whether or not the same are shown on the Plans as) the NYTC Areas or
the NYTC Limited Areas: (i) the walls, partitions and doors separating the NYTC
Individual Units from the NYTC Areas and/or the NYTC Limited Areas; (ii) all
stairs, stairways, escalators and elevators solely serving all or a portion of
the NYTC Collective Unit other than those identified on the Plans solely as part
of one NYTC Individual Unit or located in and exclusively serving one NYTC
Individual Unit; and (iii) all other parts of the NYTC Collective Unit the
common use of which is necessary or convenient for the existence, maintenance or
safe operation of the NYIC Individual Units and intended solely for the common
use of more than one NYTC Individual Unit.
94. "NYTC OFFICE SIGNAGE" shall have the meaning ascribed to such
term in SECTION 3(b) of ARTICLE IX hereof.
95. "NYTC PURCHASE GUARANTY" shall have the meaning ascribed to such
term in SECTION 4(a) of ARTICLE XX hereof.
96. "NYTC SIGNAGE" shall have the meaning ascribed to such term in
SECTION 3(b) of ARTICLE IX hereof.
97. "NYTC SIGNAGE COSTS" shall have the meaning ascribed to such
term in SECTION 3(b) of ARTICLE IX hereof.
98. "NYTC SUBLEASE" shall have the meaning ascribed to such term in
SECTION 5(b) of ARTICLE XX hereof.
99. "NYTC SYSTEMS" shall mean all utilities, systems and fixtures
(including, without limitation, all plumbing systems, heating systems,
electrical branches and systems, air conditioning systems, telephone and data
transmission systems and facilities, cable and/or satellite television systems,
and all fire safety/life safety systems) exclusively serving all or a portion of
the NYTC Collective Unit.
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100. "NYTC UNIT LEASE" shall mean (i) that certain sublease dated as
of December __, 2001 between Declarant, as sublandlord, and NYT Real Estate
Company LLC, as subtenant, a memorandum of which was recorded on
_________________, 200__ in the Register's Office at Reel ___, Page ____ and an
amended memorandum of which will be recorded promptly following the recordation
of this Declaration, as said sublease may be assigned, amended, supplemented
and/or restated from time to time as permitted hereunder and (ii) any new
sublease entered into by Ground Lessee with a Registered Mortgagee (or its
nominee or designee) in accordance with the applicable provisions of the NYTC
Unit Lease described in the preceding subclause (i).
101. "NYTC UNIT OWNER(S)" shall mean (a) for so long as a Unit Lease
is in effect with respect to any NYTC Individual Unit or the SPU Unit, the
tenant (from time to time) under such Unit Lease, including any Registered
Mortgagee (or its designee or nominee) succeeding to the tenant's interest under
the Unit Lease by foreclosure or by deed-in-lieu (or assignment-in-lieu) of
foreclosure or entering into a new Unit Lease with Ground Lessee as provided in
(and in accordance with the applicable provisions of) the terminated Unit Lease,
and (b) from and after the termination of the NYTC Unit Lease by Ground Lessee
or otherwise, until a NYTC Unit Lease is again in effect for the NYTC Collective
Unit, Ground Lessee. All references to the NYTC Unit Owner shall include the
successors and permitted assigns of such Person.
102. "NYTC WAIVER AND ESTOPPEL LETTER" shall have the meaning
ascribed to such term in SECTION 3(a) of ARTICLE XX hereof.
103. "OFFER PERIOD" shall have the meaning ascribed to such term in
SECTION 3(b) of ARTICLE XX hereof.
104. "OPERATING STATEMENT" shall have the meaning ascribed to such
term in SECTION 5 of ARTICLE VII hereof.
105. "OPTION DEADLINE" shall have the meaning ascribed to such term
in SECTION 4(h) of ARTICLE XX hereof.
106. "OVERTIME HOURS" shall have the meaning ascribed to such term
in SECTION 2(b) of ARTICLE X hereof.
107. "OVERTIME WORK" shall have the meaning ascribed to such term in
SECTION 2(b) of ARTICLE X hereof.
108. "PERSON" shall mean any individual, corporation, partnership,
limited liability company, trust, Governmental Authority or other legal entity.
109. "PILOT" shall have the meaning given such term in the
applicable Unit Lease.
110. "PLANS" shall mean the floor plans of the Condominium prepared
and certified by _________________ Architects, dated ______________, listed on
EXHIBIT E attached
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hereto, and to be filed in the Surveyor's Office for the City of New York and in
the Register's Office.
111. "PREMISES" shall have the meaning ascribed to such term in
ARTICLE II hereof.
112. "PROHIBITED OVERTIME HOURS" shall have the meaning ascribed to
such term in SECTION 2(b) of ARTICLE X hereof.
113. "PROHIBITED USES" shall have the meaning ascribed to such term
in SECTION 1 of ARTICLE XX hereof.
114. "PROPERTY" shall have the meaning ascribed to such term in
ARTICLE II hereof.
115. "PUBLIC PARTY" or "PUBLIC PARTIES" shall mean one or more of
42nd St. Development Project, Inc., New York State Urban Development Corporation
d/b/a Empire State Development Corporation (or any successor thereto in
function), The City of New York and New York City Economic Development
Corporation (or any successor thereto in function).
116. "PUBLIC PARTY POSSESSION DATE" shall have the meaning ascribed
to such term in SECTION 5(a) of ARTICLE XXI hereof.
117. "PUBLIC PARTY SELLER" shall have the meaning ascribed to such
term in SECTION 4(g) of ARTICLE XX hereof.
118. "QUALIFIED PERCENTAGE OCCUPANCY PERIOD" shall have the meaning
ascribed to such term in SECTION 4(d) of ARTICLE XX hereof.
119 "RATING AGENCY" shall mean Standard & Poor's Rating Services, a
division of the XxXxxx-Xxxx Companies, Inc., or its successor in interest, or if
Standard & Poor's or a successor thereto shall not exist, then Xxxxx'x Investors
Service Inc. or its successor in interest. If neither Standard & Poor's or a
successor in interest thereto nor Moody's or a successor in interest thereto
shall exist, then the FC Board of Managers shall name a replacement Rating
Agency, subject to the consent of NYTC which consent shall not be unreasonably
withheld.
120. "RECOGNITION AGREEMENT" shall mean that certain Recognition
Agreement dated as of December ___, 2001 among FC 41st Street Associates, LLC,
INGREDUS Site 8 South LLC, FC Lion LLC, the Declarant, Forest City Xxxxxx
Companies and NYTC.
121. "REGISTER'S OFFICE" shall mean the Office of the Register of
the City of New York, New York County.
122. "REGISTERED MORTGAGE" shall have the meaning ascribed to such
term in SECTION 9 of ARTICLE XX hereof.
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123. "REGISTERED MORTGAGEE" shall have the meaning ascribed to such
term in SECTION 9 of ARTICLE XX hereof.
124. "REPAIRS" shall mean repairs, replacements, substitutions,
restoration and any other work performed in or to any portion of the Premises,
other than Alterations and other than repairs of a de minimus nature.
125. "REQUESTING PARTY" shall have the meaning ascribed to such term
in ARTICLE IX of the By-Laws.
126. "RETAIL AREAS" shall mean those portions of the Building
designated as "Retail-Tax Lot No.___" on the Plans (exclusive of any Common
Elements, NYTC Limited Common Elements or FC Limited Common Elements contained
therein).
127. "RETAIL SIGNAGE" shall have the meaning ascribed to such term
in SECTION 3 of ARTICLE IX hereof.
128. "RETAIL SYSTEMS" shall mean all utilities, systems and fixtures
(including, without limitation, all plumbing systems, heating systems,
electrical branches and systems, air conditioning systems, telephone and data
transmission systems and facilities, cable and/or satellite television systems,
and all fire safety/life safety systems) exclusively serving the Retail Unit.
129. "RETAIL UNIT" is comprised of (a) the Retail Areas; (b) the
Retail Systems; (c) the plate glass windows and storefront space enclosing (and
any ground floor doors or revolving doors providing access to) the Retail Areas;
and (d) Retail Signage (whether or not located within the Retail Areas).
130. "RETAIL UNIT OWNER" shall mean (a) for so long as a Unit Lease
is in effect with respect to the Retail Unit, the tenant (from time to time)
under such Unit Lease, including any Registered Mortgagee (or its designee or
nominee) succeeding to the tenant's interest under the Unit Lease by foreclosure
or by deed-in-lieu (or assignment-in-lieu) of foreclosure or entering into a new
Unit Lease with Ground Lessee as provided in (and in accordance with the
applicable provisions of) the terminated Unit Lease, and (b) from and after the
termination of the Unit Lease for the Retail Unit by Ground Lessee or otherwise,
until a Unit Lease is again in effect for the Retail Unit, Ground Lessee. All
references to the Retail Unit Owner shall be deemed to include such Retail Unit
Owner's successors and permitted assigns.
131. "ROOF TOP GARDEN SPACE" shall mean up to 10,000 square feet of
enclosed space on the floor designated as the 52nd floor of the Building, as
more particularly designated on the Plans.
132. "SALE" or "SELL" shall mean (a) the sale, conveyance or other
transfer by a Unit Owner of its subleasehold interest in one or more of the
Units demised under its Unit Lease (and the Common Elements appurtenant
thereto), as effectuated by an assignment or amendment of the Unit Lease for
such Units or a net lease or master lease of a Unit or Units to a non-occupant,
in either case to an independent third party that is not an Affiliate of the
owner of such Unit, or (b) the sale, conveyance or transfer of a Unit Lease to
the Ground Lessee (or to a
15
subsequent transferee by Ground Lessee) following termination by the Ground
Lessee of such Unit Lease. It is understood that a "Sale" may include a portion
of a Unit or Units if the same are to be subdivided (if and to the extent
permitted hereunder) upon or prior to closing of such Sale.
133. "SALE AND PURCHASE AGREEMENT" shall have the meaning ascribed
to such term in SECTION 3(a) of ARTICLE XX hereof.
134. "SECOND OPTION DEADLINE DATE" shall have the meaning ascribed
to such term in SECTION 4(b) of ARTICLE XX hereof.
135. "SECTION 3(a) TERM SHEET" shall have the meaning ascribed to
such term in SECTION 3(a) of ARTICLE XX hereof.
136. "SECTION 3(b) TERM SHEET" shall have the meaning ascribed to
such term in SECTION 3(b) of ARTICLE XX hereof.
137. "SECTION 4(b) 10TH ANNIVERSARY DATE" shall have the meaning
ascribed to such term in SECTION 4(b) of ARTICLE XX hereof.
138. "SECTION 4(c) 2OTH ANNIVERSARY DATE" shall have the meaning
ascribed to such term in SECTION 4(c) of ARTICLE XX hereof.
139. "SECTION 4(d) OPTION" shall have the meaning ascribed to such
term in SECTION 4(d) of ARTICLE XX hereof.
140. "SECTION 6 NOTICE" shall have the meaning ascribed to such term
in SECTION 6 of ARTICLE XX hereof.
141. "SECTION 6 PURCHASE PRICE" shall have the meaning ascribed to
such term in SECTION 6 of ARTICLE XX hereof.
142. "SERVICE CONTRACT(S)" shall have the meaning ascribed to such
term in ARTICLE VI, SECTION 2 hereof.
143. "SERVICES IN RESPECT OF THE COMMON ELEMENTS" shall have the
meaning ascribed to such term in ARTICLE VI hereof.
144. "SIGNAGE" shall mean any signs, marquees, graphics, displays,
monitors or similar devices or installations, including all related lighting,
supports and the like, other than directional and identifying signage for the
Common Areas.
145. "SITE 8 SOUTH SUBWAY AGREEMENT" shall have the meaning ascribed
to such term in the Unit Leases.
146. "SPECIAL ASSESSMENT" shall mean any amount determined by a
Majority in Interest of the Unit Owners (in accordance with the provisions of
SECTION 8 of ARTICLE II of the By-Laws) to be needed to cover then necessary and
unanticipated expenses of the Board of
16
Managers in operating, managing and maintaining the Common Elements and
otherwise performing its obligations hereunder. Special Assessments shall be
allocated among the Unit Owners as set forth in the definition of Unit Owner
Expenses.
147. "SPECIAL OVERTIME HOURS" shall have the meaning ascribed to
such term in SECTION 2(b) of ARTICLE X hereof.
148. "SPU AREAS" shall mean those portions of the Building
designated as "SPU-Tax Lot No. ___" on the Plans (exclusive of any Common
Elements, NYTC Limited Common Elements or FC Limited Common Elements contained
therein).
149. "SPU SIGNAGE" shall have the meaning ascribed to such term in
SECTION 3(b) of ARTICLE IX hereof.
150. "SPU SYSTEMS" shall mean all utilities, systems and fixtures
(including, without limitation, all plumbing systems, heating systems,
electrical branches and systems, air conditioning systems, telephone and data
transmission systems and facilities, cable and/or satellite television systems,
and all fire safety/life safety systems) exclusively serving the SPU Unit.
151. "SPU UNIT" is comprised of (a) the SPU Areas; (b) the SPU
Systems; and (c) the plate glass windows and storefront space enclosing (and any
ground floor doors or revolving doors providing access to) the SPU Areas. The
SPU Unit shall at all times remain part of the NYTC Collective Unit.
152. "SUBJECT PARTY" shall have the meaning ascribed to such term in
ARTICLE XIX hereof.
153. "SUBJECT UNIT OWNER(S)" shall have the meaning ascribed to such
term in SECTION 8 of ARTICLE XX hereof.
154. "SUBSEQUENT FC INDIVIDUAL UNIT SALE" shall have the meaning
ascribed to such term in SECTION 3(b) of ARTICLE XX hereof.
155. "SUBSEQUENT FC UNIT OWNER INTEREST SALE" shall have the
meaning ascribed to such term in SECTION 3(b) of ARTICLE XX hereof.
156. "SUBSEQUENT FC UNIT TRANSFEROR" shall have the meaning ascribed
to such term in SECTION 3(b) of ARTICLE XX hereof.
157. "THIRD OPTION DEADLINE DATE" shall have the meaning ascribed to
such term in SECTION 4(c) of ARTICLE XX hereof.
158. "THIRD RENTAL ARBITRATOR" shall have the meaning ascribed to
such term in SECTION 8 of ARTICLE XX hereof.
159 "THIRD VALUATION ARBITRATOR" shall have the meaning ascribed to
such term in SECTION 8 of ARTICLE XX hereof.
17
160. "TRIGGER DATE" shall have the meaning ascribed to such term in
SECTION 4(a) of ARTICLE XX.
161. "12-MONTH PERIOD" shall have the meaning ascribed to such term
in SECTION 3(a) of ARTICLE XX hereof.
162. "Unit" shall mean each FC Individual Unit, each NYTC Individual
Unit, the Retail Unit and the SPU Unit.
163. "UNIT LEASES" shall mean, collectively, the FC Unit Lease, the
NYTC Unit Lease and any other subleases hereafter entered into between Ground
Lessee and any subtenant (including, without limitation, any Recognized
Mortgagee), as each may be amended, supplemented and/or restated from time to
time as permitted hereunder. The term "UNIT LEASE", when used in the singular,
shall refer to either the FC Unit Lease, the NYTC Unit Lease or any other such
sublease (as each may be amended, supplemented and/or restated from time to time
as permitted hereunder), as appropnate.
164. "UNIT OWNER" shall mean, with respect to any Unit, (a) for so
long as a Unit Lease for such Unit is in effect, the tenant (from time to time)
under such Unit Lease, and (b) from and after the termination of a Unit Lease by
Ground Lessee or otherwise, until a Unit Lease is again in effect for such Unit,
the Ground Lessee. All references to a Unit Owner shall be deemed to include
such Unit Owner's successors and permitted assigns.
165. "UNIT OWNER DECISION(S)" shall have the meaning ascribed to
such term in SECTION 8 of ARTICLE II of the By-Laws.
166. "UNIT OWNER EXPENSE(S)" shall mean, as to each Unit Owner:
(i) an amount equal to such Unit Owner's share (based upon its
Common Interest) of all costs and expenses (including taxes) paid or incurred by
or on behalf of the Board of Managers in connection with or arising from the
operation and management of the Building (including, without limitation, any
such costs and expenses assessed as Special Assessments), but excluding any
amounts paid or incurred by or on behalf of the Board of Managers to cure any
Event of Default by any Unit Owner, which amounts shall be allocated solely to
the defaulting Unit Owner;
(ii) for each category of expense attributable to the Building
as set forth on EXHIBIT D attached hereto (including, without limitation, any
such expense assessed as a Special Assessment), the respective percentages set
forth on said EXHIBIT D;
(iii) an amount equal to such Unit Owner's share (based upon
its Common Interest) of any reserves established by the Unit Owners in
accordance with the provisions of SECTION 8 of ARTICLE II of the By-Laws; and
(iv) any FC Collective Unit Expenses or NYTC Collective Unit
Expenses, as the case may be, payable by such Unit Owner.
167. "Work" shall have the meaning ascribed to such term in ARTICLE
X hereof.
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[GRAPHIC OMITTED]
ARTICLE IV
THE UNITS
Section 1. DESCRIPTION OF UNITS. EXHIBIT C attached hereto sets
forth the following data with respect to each Unit: Unit designation, tax lot
numbers, approximate area, Common Elements to which each such Unit has immediate
access (all as shown on the Plans) and the Common Interest attributable to each
Unit. The location of each Unit is shown on the Plans. The use of each Unit is
set forth in ARTICLE IX hereof.
Section 2. FC COLLECTIVE UNIT. The FC Collective Unit is comprised
of the elements described in subparagraph (45) of ARTICLE III hereof.
Section 3. FC INDIVIDUAL UNITS. Each FC Individual Unit is comprised
of the elements described in subparagraph (47) of ARTICLE III hereof.
Section 4. NYTC COLLECTIVE UNIT. The NYTC Collective Unit is
comprised of the elements described in subparagraph (87) of ARTICLE III hereof.
Section 5. NYTC INDIVIDUAL UNITS. Each NYTC Individual Unit is
comprised of the elements described in subparagraph (90) of ARTICLE III hereof.
Section 6. SPU UNIT. The SPU Unit is comprised of the elements
described in subparagraph (151) of ARTICLE III hereof.
Section 7. RETAIL UNIT. The Retail Unit is comprised of the elements
described in subparagraph (129) of ARTICLE III hereof.
Section 8. UNIT DESCRIPTION. The location and dimensions of each
Unit is shown on the Plans. Each Unit consists of the area measured as follows:
(i) horizontally, from and including the interior face of the exterior window or
building wall or block work or concrete work constituting the exterior walls or
the center line of a partition separating a Unit from other Units and from
Common Elements; and (ii) vertically from the horizontal plane at the center of
the upper concrete slab bounding such unit to the horizontal plane at the center
of the lower concrete slab bounding such Unit. The concrete floor slabs between
floors of a Unit consisting of two (2) or more contiguous floors shall be part
of (i) the lower Unit from the underside of such slab to the center line
thereof, and (ii) the upper Unit from the center line thereof to the top of such
slab.
Section 9. ACQUISITION BY NYTC OF ANY OF THE FC INDIVIDUAL UNITS.
If, at any time, NYTC shall acquire from an FC Unit Owner such FC Unit Owner's
leasehold interest in any of the FC Individual Units, then, notwithstanding
anything to the contrary in this Declaration, the definition and description of
the NYTC Collective Unit shall thereafter be deemed to include such FC
Individual Unit or Units and the FC Collective Unit shall thereafter be deemed
to exclude such FC Individual Unit or Units and such FC Individual Unit or Units
shall, upon such acquisition by NYTC, thereafter be deemed to be NYTC Individual
Unit or Units. The Unit Leases shall be amended simultaneously to reflect the
inclusion and exclusion
19
of such Units. This Section 9 shall not apply to the subleasing by NYTC of FC
Individual Units pursuant to any NYTC Sublease.
ARTICLE V
COMMON ELEMENTS; NYTC LIMITED COMMON ELEMENTS;
FC LIMITED COMMON ELEMENTS
Section 1. COMMON INTEREST IN COMMON ELEMENTS. Except as otherwise
provided herein, each Unit shall have appurtenant to it the Common Interest set
forth on EXHIBIT C attached hereto. Such Common Interests have been determined
pursuant to and in accordance with the provisions of Section 339-i.1(ii) of the
New York Real Property Law (I.E., based on the proportion that the floor area of
each Unit bears to the aggregate floor area of all of the Units in the
Building).
Section 2. COMMON ELEMENTS AND LIMITED COMMON ELEMENTS TO REMAIN
UNDIVIDED. Each of the Common Elements, the NYTC Limited Common Elements and the
FC Limited Common Elements shall remain undivided, and no Unit Owner or other
Person shall bring any action for partition or division thereof.
Section 3. CONTROL OVER COMMON ELEMENTS. Subject to the provisions
of this Declaration and the By-Laws, including, without limitation, Article IX
hereof, and subject to the applicable provisions of the Unit Leases, the Common
Elements shall be subject to the control and management of the Association,
through its Board of Managers, and the Board of Managers shall be entitled to do
and perform such acts therein and with respect thereto as the Board of Managers
shall reasonably determine to be advisable. Nothing in the preceding sentence
shall be deemed to qualify any of the Unit Owner Decisions. The Board of
Managers shall not take any action (or fail to take any action) with respect to
the Common Elements which would cause an Event of Default under a Registered
Mortgage or under any Unit Lease. The rights and obligations of the Board of
Managers set forth in this Declaration and the By-Laws shall be the rights and
obligations of the Association, acting by and through its Board of Managers, and
no individual member of the Board of Managers shall have any personal liability
for or on account of the obligations of the Board of Managers or the Association
hereunder.
Section 4. CONTROL OVER NYTC LIMITED COMMON ELEMENTS. Subject to the
provisions of this Declaration and the By-Laws, including, without limitation,
Article IX hereof, the NYTC Limited Common Elements shall be subject to the
control and management of the NYTC Board of Managers, and the NYTC Board of
Managers shall be entitled to do and perform such acts therein and with respect
thereto as the NYTC Board of Managers shall reasonably determine to be
advisable. Nothing in the preceding sentence shall be deemed to qualify any of
the Unit Owner Decisions. The NYTC Board of Managers shall not take any action
(or fail to take any action) with respect to the NYTC Limited Common Elements
which would cause an Event of Default under a Registered Mortgage or under any
Unit Lease.
Section 5. CONTROL OVER FC LIMITED COMMON ELEMENTS. Subject to the
provisions of this Declaration and the By-Laws, including, without limitation,
Article IX hereof,
20
the FC Limited Common Elements shall be subject to the control and management of
the FC Board of Managers, and the FC Board of Managers shall be entitled to do
and perform such acts therein and with respect thereto as the FC Board of
Managers shall reasonably determine to be advisable. Nothing in the preceding
sentence shall be deemed to qualify any of the Unit Owner Decisions. The FC
Board of Managers shall not take any action (or fail to take any action) with
respect to the FC Limited Common Elements which would cause an Event of Default
under a Registered Mortgage or under any Unit Lease.
Section 6. REVENUE DERIVED FROM COMMON ELEMENTS. Any revenue derived
from operation of the Common Elements shall be shared by the Unit Owners in
proportion to their respective Common Interests.
Section 7. REVENUE DERIVED FROM NYTC LIMITED COMMON ELEMENTS. Any
revenue derived from operation of the NYTC Limited Common Elements shall be
shared by the NYTC Unit Owners as determined by the NYTC Board of Managers.
Section 8. REVENUE DERIVED FROM FC LIMITED COMMON ELEMENTS. Any
revenue derived from operation of the FC Limited Common Elements shall be shared
by the FC Unit Owners in proportion to their respective Common Interests.
ARTICLE VI
OBLIGATIONS OF BOARD OF MANAGERS AND UNIT OWNERS; SERVICE
CONTRACTS
SECTION 1. BOARD OF MANAGERS' SERVICES; NYTC BOARD OF MANAGERS'
SERVICES; FC BOARD OF MANAGERS' SERVICES. Subject to the provisions of this
Declaration, including without limitation, those relating to the payment by each
Unit Owner of its Unit Owner Expenses, NYTC Collective Unit Expenses and FC
Collective Unit Expenses, as the case may be:
(a) the Board of Managers shall manage, supervise, operate, keep
clean and maintain, and make Repairs as appropriate to, the Common Elements to
maintain the same in a condition appropriate to a high-rise premium first-class
office building and the condition required under the Unit Leases (any such
activities being herein referred to as "SERVICES IN RESPECT OF THE COMMON
ELEMENTS"). All Repairs to the Common Elements shall be made in compliance with
all applicable Laws and the Unit Leases, and with materials at least equal to
the quality of the materials being repaired or replaced (before they were in
need of repair or replacement). In addition, the Board of Managers shall keep
and maintain the sidewalks surrounding the Building in compliance with all Laws
and the Unit Leases, in good and safe order and condition and free of
accumulations of dirt, rubbish, snow and ice and shall make all Repairs
necessary to maintain the same in a high-rise premium first-class condition and
the condition required under the Unit Leases. The Board of Managers and the Unit
Owners shall cooperate in all reasonable respects in connection with the
provision of services to them generally, including the coordination of any
Alterations performed by the Board of Managers, any temporary system shutdowns,
systems maintenance and Repairs, and the like.
21
(b) the NYTC Board of Managers shall manage, supervise, operate,
keep clean and maintain, and make Repairs as appropriate to the NYTC Limited
Common Elements to maintain the same in a condition appropriate to a high-rise
premium first-class office building and the condition required under the NYTC
Unit Leases. All Repairs to the NYTC Limited Common Elements shall be made in
compliance with all applicable Laws and the Unit Leases, and with materials at
least equal to the quality of the materials being repaired or replaced (before
they were in need of repair or replacement). The NYTC Board of Managers and the
NYTC Unit Owners shall cooperate in all reasonable respects in connection with
the provision of services to them generally, including the coordination of any
Alterations performed by the NYTC Board of Managers, any temporary system
shutdowns, systems maintenance and Repairs, and the like.
(c) the FC Board of Managers shall manage, supervise, operate, keep
clean and maintain, and make Repairs as appropriate to the FC Limited Common
Elements to maintain the same in a condition appropriate to a high-rise premium
first-class office building and the condition required under the Unit Leases.
All Repairs to the FC Limited Common Elements shall be made in compliance with
all applicable Laws and the FC Unit Leases, and with materials at least equal to
the quality of the materials being repaired or replaced (before they were in
need of repair or replacement). The FC Board of Managers and the FC Unit Owners
shall cooperate in all reasonable respects in connection with the provision of
services to them generally, including the coordination of any Alterations
performed by the FC Board of Managers, any temporary system shutdowns, systems
maintenance and Repairs, and the like.
Section 2. UNIT OWNERS' OBLIGATIONS. Except as otherwise expressly
provided in this Declaration or in the By-Laws, each Unit Owner shall be solely
responsible for developing, fitting-out, operating, maintaining, leasing,
licensing, cleaning, repairing, safeguarding, decorating, managing and
administering its Unit. Each Unit Owner shall maintain its Unit in good
condition and repair. Except as otherwise expressly provided in this Declaration
or in the By-Laws, all liabilities, costs and expenses associated with the
development, fit-out, operation, maintenance, leasing, licensing, cleaning,
repair, safety, decorating, management and administration of each Unit shall be
borne by the respective Unit Owner.
Section 3. SERVICE CONTRACTS; TERMINATION OF SERVICE CONTRACTS
RELATIVE TO COMMON ELEMENTS, NYTC LIMITED COMMON ELEMENTS OR FC LIMITED COMMON
ELEMENTS UPON TERMINATION OF A UNIT LEASE.
(a) The Board of Managers shall (subject to the By-Laws) hire a
management company and enter into a management agreement therewith with respect
to the Common Elements and may enter into cleaning, maintenance, repair or other
contracts (each, a "SERVICE CONTRACT") with respect to the Common Elements. The
NYTC Board of Managers may enter into Service Contracts with respect to the NYTC
Limited Common Elements and the FC Board of Managers may enter into Service
Contracts with respect to the FC Limited Common Elements.
(b) If the Board of Managers, the NYTC Board of Managers or the FC
Board of Managers enters into any Service Contract with an Affiliate of any Unit
Owner, then any such contract shall be on an "arm's length" basis. In addition,
in the event that (x) a Unit Lease is terminated by Ground Lessee, (y) no new
Unit Lease is entered into by Ground Lessee with any
22
Registered Mortgagee (or its designee or nominee) in accordance with the
applicable provisions of the terminated Unit Lease, and (z) there shall then be
in effect any agreement between the Board of Managers, the NYTC Board of
Managers or the FC Board of Managers, as the case may be, and any Affiliate of
the Unit Owner whose Unit Lease is so terminated, then, any such Service
Contract shall be terminable (without penalty or consideration for such
termination) at Ground Lessee's election upon not less than thirty (30) days'
prior written notice (by Ground Lessee to the affected party). The Board of
Managers, the NYTC Board of Managers or the FC Board of Managers, as the case
may be, shall cause any such Service Contract to provide for termination by the
Ground Lessee, as provided in this SECTION 3(b). Further, if (i) a Unit Lease is
terminated by the Ground Lessee, (ii) a new Unit Lease is entered into by Ground
Lessee with any Registered Mortgagee (or its designee or nominee) in accordance
with the applicable provisions of the terminated Unit Lease, and (iii) there
shall then be in effect any agreement between the Board of Managers, the NYTC
Board of Managers or the FC Board of Managers and any Affiliate of the Unit
Owner whose Unit Lease is so terminated, then, any such Service Contract shall
be terminable (without penalty or consideration for such termination) at the
election of the Registered Mortgagee (or its designee or nominee) who shall be
entering into the new Unit Lease with Ground Lessee (such termination to be
effective upon not less than thirty (30) days' prior written notice by the
Registered Mortgagee or its nominee or designee to the affected party). The
Board of Managers, the NYTC Board of Managers or the FC Board of Managers, as
the case may be, shall cause any such Service Contract to provide for
termination by the Registered Mortgagee (or its nominee or designee) as provided
in this SECTION 3(b).
(c) In the event that any Unit Owner's Unit Lease is terminated by
Ground Lessee, then, any Service Contract entered into by such Unit Owner (in
respect of its Unit) shall be terminable (without penalty or consideration for
such termination) at Ground Lessee's election upon not less than thirty (30)
days' prior written notice (delivered by Ground Lessee to the Unit Owner and the
contractor or service provider or supplier). Each Unit Owner shall cause all
building service or supply contracts which it enters into to provide for
termination by the Ground Lessee, as provided in this SECTION 3(c).
Section 4. SPU XXXX XXXXX XXX XXXXXX XXXX XXXXX. The Board of
Managers shall be responsible for the cleaning, repair, replacement and
maintenance of (a) all of the plate glass demising walls of the Retail Unit
located on the interior of the Building and abutting the Common Areas and (b)
that certain plate glass demising wall of the SPU Unit located on the interior
of the Building, facing Eighth Avenue and abutting the Common Areas. The costs
associated with the cleaning, repair, replacement and maintenance of such plate
glass shall be shared by the Unit Owners in proportion to their respective
Common Interests.
ARTICLE VII
UNIT OWNER EXPENSES; BUDGETS
Section 1. DETERMINATION OF UNIT OWNER EXPENSES.
(a) SERVICES IN RESPECT OF THE COMMON ELEMENTS.
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(i) All costs and expenses incurred by the Board of Managers
in providing Board of Managers' Services (including sales taxes thereon) shall
be Unit Owner Expenses and shall be determined by the Board of Managers and
shall be allocated among the Unit Owners as set forth in subparagraph (166) of
ARTICLE III hereof.
(ii) The Board of Managers shall from time to time and at
least annually (and no later than one hundred twenty (120) days prior to the
commencement of the succeeding calendar year) prepare and submit to the Unit
Owners a budget for the succeeding calendar year setting forth substantially all
anticipated costs and expenses of providing Services in Respect of the Common
Elements, as well as capital and operating reserves as it shall reasonably
determine, but in no event less than an amount equal to three months operating
expenses under such budget (each such approved budget, and each amended budget,
a "Budget"). The Board of Managers shall have the right to propose amendments to
the Budget during the course of each year. Each proposed Budget or amendment
thereto must be approved by a Majority in Interest of the Unit Owners. Within
forty-five (45) days after receipt of a Budget, the Unit Owners, acting
reasonably, shall vote to approve or disapprove the proposed Budget or
amendment, as the case may be, it being agreed that the Unit Owners shall
include in each Budget provision for capital repairs or replacements as
necessary to maintain the Building as a high-rise premium first-class office
building. In the event that a Majority in Interest of the Unit Owners fail to
approve any Budget within such forty-five (45) day period, then the item or
items in controversy with respect to that Budget shall be submitted for
resolution to a single arbiter in accordance with (and be decided in accordance
with) the provisions of ARTICLE IX of the By-Laws. During the pendency of any
dispute regarding a Budget, the Board of Managers shall be authorized to make
expenditures in accordance with SECTION 2(a) of this ARTICLE VII. [The Budget
for the year (or period) ending on(2) ____________________ is attached hereto as
EXHIBIT G (the "FIRST BUDGET").]
(iii) The Board of Managers shall send a copy of each Budget
(and any amendment thereto) to Ground Lessee and to each Registered Mortgagee
promptly following the approval thereof by the Unit Owners or resolution by
arbitration. In addition, the Board of Managers shall send a copy of each notice
of Special Assessment to the Ground Lessee and to each Registered Mortgagee
simultaneously with sending any such notice to the Unit Owners.
(b) SERVICES IN RESPECT OF THE NYTC LIMITED COMMON ELEMENTS. All
costs and expenses incurred by the NYTC Board of Managers in providing its
services (including sales taxes thereon) shall be determined by the NYTC Board
of Managers and shall be allocated among the NYTC Unit Owners as set forth in
subparagraph (88) of ARTICLE III hereof. The NYTC Board of Managers and each
NYTC Unit Owner shall have all of the rights and privileges, and each shall
comply with all of the obligations, of the Board of Managers and the Unit
Owners, respectively, set forth in subsections (a)(ii) and (iii) above with
respect to budgets and the allocation of costs and expenses relating to the NYTC
Limited Common Elements as if the NYTC Board of Managers were the Board of
Managers, the NYTC Unit Owners were the Unit Owners and the NYTC Limited Common
Elements were the Common Elements.
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(2) To be filled-in upon signing of this Declaration
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(c) SERVICES IN RESPECT OF THE FC LIMITED COMMON ELEMENTS. All costs
and expenses incurred by the FC Board of Managers in providing its services
(including sales taxes thereon) shall be determined by the FC Board of Managers
and allocated among the FC Unit Owners as set forth in subparagraph (46) of
ARTICLE III hereof. The FC Board of Managers and each FC Unit Owner shall have
all of the rights and privileges, and each shall comply with all of the
obligations, of the Board of Managers and the Unit Owners, respectively, set
forth in subsections (a)(ii) and (iii) above with respect to budgets and the
allocation of costs and expenses relating to the FC Limited Common Elements as
if the FC Board of Managers were the Board of Managers, the FC Unit Owners were
the Unit Owners and the FC Limited Common Elements were the Common Elements.
Section 2. EXPENDITURES.
(a) BOARD OF MANAGERS. The Board of Managers shall be authorized to
make the expenditures and incur the obligations provided for in any approved
Budget. In addition, the Board of Managers shall be authorized to make
expenditures in excess of any approved Budget (a) if the expenditure(s) in
question would not cause the amount expended for the category of expenditure in
question, on a line item basis, to exceed by more than five percent (5%) the
amount budgeted for such category in an approved Budget (except as to utility
bills, the expenditure for which may, to the extent actually billed, exceed by
more than five percent (5%) the amount budgeted for such category in an approved
Budget), and/or (b) if such expenditures are required in order to make emergency
repairs, provided that the Board of Managers shall give written notice to the
Unit Owners prior to the making of any such expenditure, if reasonably possible
or, in any case, promptly after making same, and/or (c) if such expenditures are
required by Law or because of any Insurance Requirements. Furthermore, during
the pendency of any dispute regarding a Budget, the Board of Managers shall be
authorized to make expenditures and incur obligations (i) for such items and in
amounts of up to 105% of such amounts as were set forth in the last approved
Budget (as those amounts are adjusted by the CPI Adjustment), (ii) for other
items and/or in such other amounts (regardless of the amount for such item set
forth in the last approved Budget) for those items the cost of which are
reasonably established (such as utilities, insurance and real estate taxes or
PILOT), (iii) to replace or repair broken or worn out items as necessary to
maintain the Building as a high-rise premium first-class office building; and
(iv) as are necessary in order to cause the Common Elements to comply with the
Unit Leases (including, without limitation, the provisions thereof relating to
DUO) and the Site 8 South Subway Agreement.
(b) NYTC BOARD OF MANAGERS. The NYTC Board of Managers shall have
the same rights and obligations as the Board of Managers set forth in subsection
(a) above with respect to budgets established by the NYTC Board of Managers
pursuant to subsection (b) of Section 1 above.
(C) FC BOARD OF MANAGERS. The FC Board of Managers shall have the
same rights and obligations as the Board of Managers set forth in subsection (a)
above with respect to budgets established by the FC Board of Managers pursuant
to subsection (c) of Section 1 above.
Section 3. STATEMENTS; UNIT OWNER'S PAYMENTS.
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(a) BOARD OF MANAGERS' STATEMENTS. The Board of Managers shall
furnish to each Unit Owner (and to Ground Lessee and each Registered Mortgagee,
for informational purposes only), no later than forty-five (45) days prior to
the commencement of each calendar year (or, in the case of the calendar year
200__, on the recording of this Declaration), a statement of the Board of
Managers' estimate of the amount of the Unit Owner Expenses for such calendar
year (or partial year, if applicable) (each such statement, a "BOARD OF
MANAGERS' STATEMENT"). If the Unit Owners adopt a revised Budget in the course
of a year, the Board of Managers shall re-issue its Board of Managers' Statement
to the Unit Owners (and to Ground Lessee and each Registered Mortgagee, for
informational purposes only). Within ten (10) days after the date hereof, each
Unit Owner shall pay to the Board of Managers the amount of such Unit Owner's
Expenses attributable to the reserves set forth under the First Budget and as
set forth in the initial Board of Managers Statement. Thereafter, for each month
remaining during the calendar year 200__, each Unit Owner shall pay to the Board
of Managers, by no later than the fifth (5th) day of each month, an amount equal
to the Board of Managers' estimate of the Unit Owner Expenses for such month, as
shown on the Board of Managers' Statement. For each calendar year commencing
with the 200_ calendar year, each Unit Owner shall pay to the Board of Managers,
by no later than the fifth (5th) day of each month, an amount equal to
one-twelfth (1/12th) of the Board of Managers' estimate of the Unit Owner
Expenses for such calendar year, as shown on the Board of Managers' Statement.
The Board of Managers shall have the right to require that payments for certain
Unit Owner Expenses be made other than on a monthly basis, in which event, such
payments shall be due and payable within such reasonable time period as is
determined by the Board of Managers, as set forth in a notice from the Board of
Managers to the Unit Owners.
If the Board of Managers shall not furnish any Board of Managers'
Statement for any calendar year prior to the commencement thereof, then (i)
until the Board of Managers' Statement is furnished to the Unit Owners, each
Unit Owner shall pay to the Board of Managers by no later than the fifth (5th)
day of each month an amount equal to the monthly sum payable by such Unit Owner
to the Board of Managers hereunder for the last month of the preceding calendar
year or partial calendar year; (ii) after the Board of Managers' Statement is
furnished to the Unit Owners or together therewith, the Board of Managers shall
notify each Unit Owner whether the installments previously made for such
calendar year (or partial calendar year) were greater or less than the
installments of such Unit Owner's payment(s) required to be made for such
calendar year in accordance with such Board of Managers' Statement, and (x) if
there shall be a deficiency, the Unit Owner(s) shall pay the amount thereof
within ten (10) days after receipt of such notification or (y) if there shall
have been an overpayment, the Board of Managers shall credit such amount against
the next payments to be made by such Unit Owner(s) hereunder; and (iii) by no
later than the fifth (5th) day of the month following the month in which the
Board of Managers' Statement is furnished to each such Unit Owner, and
thereafter, until a new Board of Managers' Statement is furnished, each such
Unit Owner shall pay to the Board of Managers monthly an amount equal to
one-twelfth (1/12th) of the Unit Owner Expenses for such calendar year (or at
such times and in such amounts as the Unit Owners are otherwise instructed in
writing by the Board of Managers) as shown on the Board of Managers' Statement.
(b) NYTC BOARD OF MANAGERS' STATEMENTS. The NYTC Board of Managers
and each NYTC Unit Owner shall have all of the rights and privileges, and shall
comply with all
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of the obligations, of the Board of Managers and the Unit Owners, respectively,
set forth in subsection (a) above with respect to expenses relating to the NYTC
Limited Common Elements and statements with respect to the same as if the NYTC
Board of Managers were the Board of Managers, the NYTC Unit Owners were the Unit
Owners and the NYTC Limited Common Elements were the Common Elements.
(c) FC BOARD OF MANAGERS' STATEMENTS. The FC Board of Managers and
each FC Unit Owner shall have all of the rights and privileges, and shall comply
with all of the obligations, of the Board of Managers and the Unit Owners,
respectively, set forth in subsection (a) above with respect to expenses
relating to the FC Limited Common Elements and statements with respect to the
same as if the FC Board of Managers were the Board of Managers, the FC Unit
Owners were the Unit Owners and the FC Limited Common Elements were the Common
Elements.
Section 4. SPECIAL ASSESSMENTS. Within ten (10) days of any request
therefor, each (a) Unit Owner shall pay to the Board of Managers, (b) NYTC Unit
Owner shall pay to the NYTC Board of Managers and (c) FC Unit Owner shall pay to
the FC Board of Managers, its share of any Special Assessment.
Section 5. DELIVERY BY BOARD OF MANAGERS, NYTC BOARD OF MANAGERS AND
FC BOARD OF MANAGERS OF YEAR-END STATEMENTS AND RECONCILIATION.
(a) After the end of each calendar year (or partial calendar year),
the Board of Managers shall furnish to each Unit Owner (and to Ground Lessee and
each Registered Mortgagee, for informational purposes only) an operating
statement for such calendar year (or partial year), which statement shall (i)
set forth the Unit Owner Expenses for such calendar year (or partial year), and
(ii) state the payments made by each such Unit Owner on account thereof (any
such statement, an "OPERATING STATEMENT"). If an Operating Statement shall show
that the sums paid by a Unit Owner for the calendar year (or partial calendar
year) in question exceeded the Unit Owner Expenses for such calendar year (or
partial calendar year), the Board of Managers shall credit such amount against
the next payment hereunder (or, if a portion of such overpayment exists after
such credit against the next payment, such portion shall be credited against
subsequent payments to be made by such Unit Owner(s) until the amount of the
overpayment is credited in full); if an Operating Statement shall show that the
sums so paid were less than such Unit Owner Expenses for such calendar year (or
partial calendar year), then the Unit Owner(s) that shall have paid less than
its Unit Owner Expenses for such calendar year (or partial calendar year) shall
pay the amount of such deficiency within ten (10) days thereafter.
(b) The NYTC Board of Managers shall have the obligations of the
Board of Managers set forth in subsection (a) above as the same pertain to the
NYTC Unit Owner Expenses as if the NYTC Board of Managers were the Board of
Managers, the NYTC Unit Owners were the Unit Owners and the NYTC Limited Common
Elements were the Common Elements.
(c) The FC Board of Managers shall have the obligations of the Board
of Managers set forth in subsection (a) above as the same pertain to the FC Unit
Owner Expenses as
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if the FC Board of Managers were the Board of Managers, the FC Unit Owners were
the Unit Owners and the FC Limited Common Elements were the Common Elements.
Section 6. FAILURE TO DELIVER A STATEMENT NOT PREJUDICIAL. The
failure to render any statement hereunder with respect to any period shall not
prejudice the right of the Board of Managers, NYTC Board of Managers or FC Board
of Managers, as the case may be, to thereafter render a statement with respect
thereto or the right of any Unit Owner to require and be furnished with same.
Section 7. BOOKS AND RECORDS. (a) Upon five (5) business days'
written notice by any Unit Owner, Ground Lessee or any Registered Mortgagee to
the Board of Managers, such Unit Owner, Ground Lessee or Registered Mortgagee
(or any agents acting on behalf of such Unit Owner, Ground Lessee or Registered
Mortgagee) may inspect the applicable books and records of the Board of Managers
in order to verify such Unit Owner's Unit Owner Expenses. Such notice shall
specifically designate the year(s) for which the Unit Owner, Ground Lessee or
Registered Mortgagee intends to inspect applicable books and records, which
year(s) shall be limited to the three (3) full calendar years immediately
preceding the date of such inspection and any then elapsed portion of the then
current calendar year.
(b) Each inspection shall be at the office of the Board of Managers
or at the office of the Board of Manager's managing agent, if any, and shall be
made during normal business hours. All costs of such inspection shall be borne
by the party requesting the inspection. Any Unit Owner, Ground Lessee or
Registered Mortgagee making any inspection hereunder shall provide the Board of
Managers with a copy of any written report on the results of such inspection
within fifteen (15) days of the preparation thereof. Each Unit Owner shall hold
confidential all non-public information, reports or statements obtained pursuant
to such inspection, provided however, that such Unit Owner may disclose such
information (i) to its Affiliate, (ii) pursuant to the order of any court of
competent jurisdiction or administrative agency, (iii) which had been publicly
disclosed other than as a result of a disclosure by such Unit Owner, (iv) in
connection with any litigation, (v) to the extent necessary in connection with
the exercise of any remedy hereunder or under any other document relating to the
Building, (vi) to such Unit Owner's legal counsel, accountants and independent
auditors and (vii) to any Registered Mortgagee or proposed subtenant or assignee
of a Unit Owner.
(c) The NYTC Unit Owners, Ground Lessee and any Registered Mortgagee
of the NYTC Unit Owners shall have the same right to inspect the books and
records kept by the NYTC Board of Managers, as provided for inspection of the
books and records kept by the Board of Managers in subsections (a) and (b)
above.
(d) The FC Unit Owners, Ground Lessee and any Registered Mortgagee
of an FC Unit Owner shall have the same right to inspect the books and records
kept by the FC Board of Managers, as provided for inspection of the books and
records kept by the Board of Managers in subsections (a) and (b) above.
Section 8. ESTOPPEL CERTIFICATES DELIVERED BY BOARD OF MANAGERS.
Within fifteen (15) days of receipt of a written request therefor (whether from
a Unit Owner or its prospective assignee or its Registered Mortgagee or a
prospective Mortgagee or from Ground Lessee), the
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Board of Managers shall execute, acknowledge and deliver to the Person making
such request a statement (an "ESTOPPEL CERTIFICATE") certifying the date to
which each obligation constituting a Unit Owner Expense has been paid by such
Unit Owner, and stating whether or not to the best knowledge of the Board of
Managers, such Unit Owner is in default in the performance of any covenant,
agreement or condition contained in this Declaration or the By-Laws and, if so,
specifying each such default of which the Board of Managers has knowledge. The
NYTC Board of Managers and FC Board of Managers shall issue Estoppel
Certificates in the same manner and upon the same terms as the Board of
Managers, except that such Estoppel Certificates shall pertain to the NYTC Unit
Owners and FC Unit Owners, respectively.
ARTICLE VIII(3)
UTILITIES
Section 1. ELECTRICITY. Electricity for the Building shall be
supplied by a utility company or alternative energy provider and shall be
measured by (i) a master electric meter measuring electric consumption by the
entire Building (including the Common Elements) and (ii) dedicated submeters
measuring electric consumption by each of the Units. The electric consumption of
the Common Elements (the "COMMON ELEMENTS ELECTRIC CONSUMPTION") will be
measured by subtracting the consumption shown on the dedicated submeters from
the consumption shown on the Building's master meter. Currently, the Unit Owners
expect that there shall be a single electric xxxx for the Building, based on
readings taken from the master electric meter, and that each such xxxx will be
supplied to the Board of Managers. Promptly upon receipt of such bills, the
Board of Managers shall render such bills to the Unit Owners, and the Unit
Owners shall pay their proportionate shares of such bills within ten (10) days
of rendition thereof (including an amount for the cost of electricity supplied
to the Common Areas). Notwithstanding the foregoing, the Board of Managers may
include payments on account of the foregoing in the Budget and include such
payments on any Board of Manager's Statement, to be paid by the Unit Owners
consistent with the provisions of this ARTICLE VIII. Each Unit Owner's xxxx
shall be determined by reference to measurements made on such Unit's submeter
and shall include an amount determined by multiplying such Unit Owner's Common
Interest by the Common Elements Electric Consumption (measured and determined as
described above) for the relevant period. Bills to each Unit Owner shall be
accompanied by copies of the bills received by the Board of Managers and, when
available, copies of the submeter readings.
Section 2. GAS. Gas for the Building (including, without limitation,
gas supplied to the single boiler for the Building, if any, which is a Common
Element as shown on the Plans) shall be supplied by a utility company or
alternative energy provider and shall be measured by (i) a master meter
measuring the gas consumption by the entire Building (including the Common
Elements) and (ii) dedicated submeters measuring gas consumption by each of the
Units, but excluding such gas consumption as shall be measured on the meters
described in SECTION 1 above. The gas consumption of the Common Elements (the
"COMMON ELEMENTS GAS CONSUMPTION") will be measured by subtracting the
consumption shown on the dedicated
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* TO BE REVISED BASED UPON THE STRUCTURE OF THE UTILITIES SYSTEMS AS BUILT.
29
submeters from the consumption shown on the Building's master meter. Currently,
the Unit Owners expect that there shall be a single gas xxxx for the Building,
based on readings taken from the Building's master gas meter, and that each such
xxxx will be supplied to the Board of Managers. Promptly upon receipt of such
bills, the Board of Managers shall render such bills to the Unit Owners, and the
Unit Owners shall pay their proportionate shares of such bills within ten (10)
days of rendition thereof. Notwithstanding the foregoing, the Board of Managers
may include payments on account of the foregoing in the Budget and include such
payments on any Board of Manager's Statement, to be paid by the Unit Owners
consistent with the provisions of ARTICLE VIII hereof.) Each Unit Owner's xxxx
shall be determined by reference to measurements made on such Unit's submeter
and shall include an amount determined by multiplying such Unit Owner's Common
Interest by the Common Elements Gas Consumption (measured and determined as
described above) for the relevant period. Bills to each Unit Owner shall be
accompanied by copies of the bills received by the Board of Managers and, when
available, copies of the submeter readings.
Section 3. WATER. Water for the Building shall be supplied by the
City of New York through one main water pump and shall be measured by (i) a
master water meter measuring domestic and condenser water make-up consumption by
the entire Building (including the Common Elements) and (ii) dedicated submeters
measuring domestic and condenser water consumption by each Unit. The water
consumption of the Common Elements (the "COMMON ELEMENTS WATER CONSUMPTION")
will be measured by subtracting the consumption shown on the dedicated submeters
from the consumption shown on the Building's master meter. Currently, the Unit
Owners expect that there shall be a single water xxxx for the Building, based on
readings taken from the master water meter, and that each such xxxx will be
supplied to the Board of Managers. Promptly upon receipt of such bills, the
Board of Managers shall render such bills to the Unit Owners and the Unit Owners
shall pay such bills within ten (10) days of rendition thereof. Notwithstanding
the foregoing, the Board of Managers may include payments on account of the
foregoing in the Budget and include such payments on any Board of Manager's
Statement, to be paid by the Unit Owners consistent with the provisions of
ARTICLE VIII hereof. Each Unit Owner's xxxx shall be determined by reference to
measurements made on such Unit's submeter and shall include an amount determined
by multiplying such Unit Owner's Common Interest by the Common Elements Water
Consumption (measured and determined as described above) for the relevant
period. Bills to each Unit Owner shall be accompanied by copies of the bills
received by the Board of Managers and, when available, copies of the submeter
readings.
Section 4. PAYMENTS CONSTITUTE A UNIT OWNER EXPENSE. Payments due
hereunder shall constitute Unit Owner Expenses, and the Board of Managers shall
have a Board of Manager's Lien (and all other right and remedies available to it
hereunder) for non-payment thereof.
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ARTICLE IX
PERMITTED USES; LICENSES AND PERMITS; BUILDING NAME; SIGNAGE;
ANTENNAE; REVENUE FROM SIGNAGE AND ANTENNAE
Section 1. PERMITTED USES. Each Unit may be used for any lawful
purpose permitted under the Unit Lease demising such Unit, provided that such
use is not a Prohibited Use and does not (i) violate any Laws or Insurance
Requirements, or any of the provisions of this Declaration, the By-Laws, the
Ground Lease, DUO or the applicable Unit Lease, (ii) constitute a public or
private nuisance, (iii) violate any certificate of occupancy for the Building,
or (iv) except with respect to the SPU Unit, introduce amounts of public traffic
in the Building in excess of that which is customary for high-rise premium
first-class office buildings with ground floor retail in New York, New York
comparable to the Building. Each Unit shall be used in a manner consistent with
high-rise premium first-class office buildings in New York, New York with ground
floor retail comparable to the Building. In addition to and without limiting the
generality of the foregoing, so long as NYTC occupies Units within the Building,
the Common Interest attributable to which, in the aggregate, constitutes at
least twenty percent (20%), (a) neither the Retail Unit nor any FC Individual
Unit shall be used by an NYTC Competing User (as hereinafter defined), (b) each
FC Individual Unit shall be used for office and incidental purposes only and (c)
the Retail Unit shall be used for retail, storage and incidental purposes only.
In all events, the use of all portions of the Building shall comply with DUO to
the extent then applicable thereto.
Section 2. LICENSES AND PERMITS. Each Unit Owner shall be
responsible for maintaining any governmental permit, approval or license
required by Law for the use or operation of its Unit. The Board of Managers (and
the NYTC Board of Managers and FC Board of Managers, if applicable) shall
cooperate with each Unit Owner in connection with any of the foregoing and,
subject to reimbursement of the Board of Managers' out-of-pocket costs (and the
NYTC Board of Managers' out-of-pocket expenses and the FC Board of Managers'
out-of-pocket expenses, if applicable) incurred in connection therewith, shall
execute such applications, authorizations and other instruments as are
reasonably required to enable each Unit Owner to fulfill its responsibilities
hereunder. The Board of Managers shall be responsible for obtaining and
maintaining for the Building a temporary or permanent certificate of occupancy,
provided, however, that each Unit Owner shall execute such applications,
authorizations and other instruments and perform any work required with respect
to its Unit as is reasonably required to enable the Board of Managers to obtain
and maintain the temporary or permanent certificate of occupancy.
Section 3. BUILDING NAME; SIGNAGE; COMMUNICATIONS EQUIPMENT;
CANOPIES AND AWNINGS.
(a) BUILDING NAME. For so long as NYTC occupies Units within the
Building, the Common Interest attributable to which, in the aggregate,
constitutes at least twenty percent (20%), the Building shall be known as "The
New York Times Building."
(b) SIGNAGE. All matters relating to Signage shall be subject to the
terms of the
31
Ground Lease and the Unit Leases (including without limitation DUO) and to the
following terms and conditions:
(i) Signage, the content of which relates solely to NYTC, may
be placed on the roof of the Building and on the uppermost portion of the sides
of the facade of the Building not less than fifteen (15) feet above the
uppermost tenantable windows of the FC Unit (collectively, "NYTC SIGNAGE"), in
form, size and shape selected by NYTC in its sole discretion. The cost of
erection and maintenance of such NYTC Signage shall be borne solely by NYTC;
provided, however, that in no event shall NYTC pay any usage or licensing cost,
charge or fee to the Board of Managers, NYTC Board of Managers or FC Board of
Managers to erect or maintain such NYTC Signage. In no event shall said NYTC
Signage be placed in a manner or location which will interfere with the
efficient operation and use of the Building or any rooftop gardens in the
reasonable judgment of NYTC, nor shall any such NYTC Signage interfere with the
view from or the sunlight to any window in the FC Collective Unit, the Retail
Unit or the SPU Unit except to an immaterial extent. Additionally, to the extent
such NYTC Signage is illuminated, the same shall not be placed in a manner or
location which illuminates the interior of the FC Collective Unit, the Retail
Unit or the SPU Unit except to an immaterial extent. The rights of NYTC Member
under this clause (i) with regard to NYTC Signage shall be in effect only for so
long as NYTC occupies Units within the Building, the Common Interest
attributable to which, in the aggregate, constitutes at least twenty percent
(20%). All interior Signage within the NYTC Collective Unit shall not be visible
from the exterior of the Building.
(ii) Signage, the content of which pertains solely to FC Unit
Owners' office anchor tenant(s) (and in no event shall such signs identify more
than three (3) such office anchor tenants), may be placed on the facade flanking
the entrances to the Building in locations and dimensions substantially as shown
on EXHIBIT H-1 hereto ("FC OFFICE SIGNAGE"), in form and shape selected by such
FC Unit Owner in its sole discretion, provided however, that the design of such
FC Office Signage shall be commensurate with the stature and design intent of
the Building, and that such FC Office Signage shall be less prominent than the
NYTC Office Signage relating to NYTC described under SECTION 3(b)(iii) of this
ARTICLE IX. The cost of erection and maintenance of such FC Office Signage shall
be borne solely by such FC Unit Owner; provided, however, that in no event shall
such FC Unit Owner pay any usage or licensing cost, charge or fee to the Board
of Managers, the NYTC Board of Managers or the FC Board of Managers to erect or
maintain such FC Office Signage. In no event shall such FC Office Signage be
placed in a manner or location which will interfere with the efficient operation
and use of the Building or with the view from or the sunlight to any window in
the NYTC Collective Unit, the SPU Unit or the Retail Unit except to an
immaterial extent. Additionally, to the extent such FC Office Signage is
illuminated, the same shall not be placed in a manner which illuminates the
interior of the NYTC Collective Unit, the SPU Unit or the Retail Unit except to
an immaterial extent. All interior Signage within the FC Collective Unit shall
not be visible from the exterior of the Building.
(iii) In addition to, and without limiting NYTC Unit Owner's
rights under Section 3(b)(i) of this Article IX with respect to NYTC Signage,
Signage, the content of which pertains solely to NYTC Unit Owner's office
tenants or occupants (and in no event shall such signs identify more than three
(3) such office tenants or occupants which are not Affiliates of NYTC), may be
placed on the canopy (or canopies, as the case may be) of the Building and on
32
the facade over and/or flanking the entrances to the Building in locations and
dimensions substantially as shown on EXHIBIT H-1 hereto ("NYTC OFFICE SIGNAGE"),
in form and shape selected by such NYTC Unit Owner in its sole discretion,
provided however, that the design of such NYTC Office Signage shall be
commensurate with the stature and design intent of the Building, and that in the
case of NYTC Office Signage relating to NYTC, the same shall be more prominent
than the FC Office Signage described under SECTION 3(b)(ii) of this ARTICLE IX.
The cost of erection and maintenance of such NYTC Office Signage shall be borne
solely by such NYTC Unit Owner; provided, however, that in no event shall such
NYTC Unit Owner pay any usage or licensing cost, charge or fee to the Board of
Managers, the NYTC Board of Managers or the FC Board of Managers to erect or
maintain such NYTC Office Signage. In no event shall such NYTC Office Signage be
placed in a manner or location which will interfere with the efficient operation
and use of the Building or with the view from or the sunlight to any window in
the FC Collective Unit, the SPU Unit or the Retail Unit except to an immaterial
extent. Additionally, to the extent such NYTC Office Signage is illuminated, the
same shall not be placed in a manner which illuminates the interior of the FC
Collective Unit, the SPU Unit or the Retail Unit except to an immaterial extent.
All interior Signage within the NYTC Collective Unit shall not be visible from
the exterior of the Building.
(iv) Signage, which is unrelated to any office tenant of an FC
Unit Owner, which is not being leased or licensed to a user listed in EXHIBIT I
and the content of which does not relate to any prohibited use listed in EXHIBIT
I, may be placed on the facade of the Building above the windows of the Retail
Unit and below the lowermost windows of the NYTC Collective Unit in locations
and dimensions substantially as shown on EXHIBIT H-1 hereto ("RETAIL SIGNAGE")
and in form and shape selected by such FC Unit Owner in its sole discretion,
provided however, that the design of such Retail Signage shall be commensurate
with the stature and design intent of the Building. The cost of erection and
maintenance of such Retail Signage shall be borne solely by the Retail Unit
Owner; provided, however, that in no event shall the Retail Unit Owner pay any
usage or licensing cost, charge or fee to the Board of Managers, the NYTC Board
of Managers or the FC Board of Managers to erect or maintain such Retail
Signage. In no event shall such Retail Signage be placed in a manner or location
which will interfere with the efficient operation and use of the Building or
with the view from or the sunlight to any window in the NYTC Collective Unit,
the FC Collective Unit or the SPU Unit except to an immaterial extent.
Additionally, to the extent such Retail Signage is illuminated, the same shall
not be placed in a manner which illuminates the interior of the NYTC Collective
Unit, the FC Collective Unit or the SPU Unit except to an immaterial extent. All
revenue derived from the Retail Signage shall belong to the Retail Unit Owner.
(v) Signage, the content of which pertains solely to the SPU
Unit, may be placed on the facade of the Building below the lowermost windows of
the FC Collective Unit in locations and dimensions substantially as shown on
EXHIBIT H-1 hereto ("SPU SIGNAGE") and in form and shape selected by the NYTC
Unit Owner in its sole discretion and at its sole cost, provided however, that
the design of such SPU Signage shall be commensurate with the stature and design
intent of the Building. The cost of erection and maintenance of such SPU Signage
shall be borne solely by the NYTC Unit Owner; provided, however, that in no
event shall the NYTC Unit Owner pay any usage or licensing cost, charge or fee
to the Board of Managers, the NYTC Board of Managers or the FC Board of Managers
to erect or maintain such SPU Signage. In no event shall such SPU Signage be
placed in a manner or location which will interfere with
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the efficient operation and use of the Building or with the view from or the
sunlight to any window in the FC Collective Unit, the NYTC Collective Unit or
the Retail Unit except to an immaterial extent. Additionally, to the extent such
SPU Signage is illuminated, the same shall not be placed in a manner which
illuminates the interior of the FC Collective Unit except to an immaterial
extent.
(vi) Commercial Signage may be placed on the Premises if
required by DUO or as agreed upon by a Majority in Interest of the Unit Owners.
The form, size, shape, content and location of any Commercial Signage shall be
determined by a Majority in Interest of the Unit Owners (except to the extent
that the form, size, shape, content or location of such Commercial Signage is
governed by DUO or could result in a default under any Unit Lease, in which
event the consent of all Unit Owners shall be required). Subject to the
foregoing sentence and for so long as NYTC occupies Units within the Building,
the Common Interest attributable to which, in the aggregate, constitutes at
least twenty percent (20%), NYTC shall have the first right, as determined by
NYTC in its sole discretion, to require that the Commercial Signage or any
portion thereof be used in a manner relating to The New York Times Company or
another news-related purpose, but that otherwise the Unit Owners shall endeavor
to obtain the maximum revenue to be derived therefrom, consistent with the
stature and design intent of the Building. The cost of fabrication, erection and
maintenance of all Commercial Signage shall be shared by the Unit Owners in
proportion to their respective Common Interests. If NYTC exercises its right to
require that the Commercial Signage or any portion thereof be used in a manner
relating to The New York Times Company or another news-related purpose, then
NYTC shall thereafter pay to the Board of Managers on a monthly basis, an amount
equal to the product of (x) Fair Market Rent for such Commercial Signage,
multiplied by (y) the portion (expressed as a percentage) of such use by NYTC.
Notwithstanding anything to the contrary contained in this subsection (v) or
elsewhere in this Agreement, if DUO requires Commercial Signage, and there shall
not be other users of the Commercial Signage acceptable to the Board of Managers
for the periods such Commercial Signage is being used by NYTC, the immediately
preceding sentence shall not apply. All revenue derived from Commercial Signage
shall be shared by the Unit Owners in proportion to their respective Common
Interests.
(vii) The NYTC Unit Owner (with respect to NYTC Signage, NYTC
Office Signage and SPU Signage and, if and to the extent it has exercised its
right to require that Commercial Signage or any portion thereof be used in a
manner relating to The New York Times Company or another news-related purpose,
Commercial Signage), the applicable FC Unit Owners (with respect to FC Office
Signage) and the Retail Unit Owner (with respect to Retail Signage) shall be
solely responsible for any obligations under its respective Unit Lease with
respect to such Signage, and shall cause such NYTC Signage, NYTC Office Signage,
SPU Signage and such Commercial Signage or FC Office Signage and Retail Signage,
as the case may be, to comply with all applicable laws, DUO and its respective
Unit Lease.
(viii) NYTC shall be entitled, at its sole election, to
convert the use of any NYTC Signage or portion thereof to Commercial Signage by
delivering written notice of such intention to the FC Board of Managers together
with a statement showing in reasonable detail the then unamortized portion of
the costs (determined in accordance with GAAP), if any, of the fabrication and
erection of such Signage incurred by NYTC with respect thereto and an interest
factor of LIBOR plus one percent per annum with respect to such costs, measured
from
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the date such costs were expended by NYTC) (collectively, "NYTC'S UNAMORTIZED
SIGNAGE COSTS"). The FC Board of Managers shall have the option exercisable by
written notice to NYTC within sixty (60) days after the FC Board of Manager's
receipt of such notice and statement from NYTC, to elect to participate
thereafter in the use of and share in the revenue generated by and ongoing
operating and maintenance and replacement costs of such Signage, and if such
election is made by the FC Board of Managers, then the FC Unit Owners shall to
pay to NYTC an amount equal to the FC Unit Owners' proportionate share (based
upon their Common Interests) of NYTC's Unamortized Signage Costs relating to
such Signage. Once any NYTC Signage has been converted to Commercial Signage,
NYTC may not thereafter convert such Commercial Signage back to NYTC Signage.
(ix) Signage may be affixed by any Unit Owner within the
interior portions of its Unit. Each Unit Owner shall be solely responsible for
the costs of fabrication, erection, maintenance and operation of Signage within
its Unit, its directional and identifying signage and antennae.
(x) Signage may be affixed by the Unit Owners and the Board of
Managers to the interior portions of Common Areas in the locations and within
the dimensions substantially as shown on EXHIBIT H-2.
(xi) The costs of fabrication, erection, maintenance and
operation of all directional and identifying signage located in any Common Areas
as shown on EXHIBIT H-2 shall be allocated to the Unit Owners in proportion to
their respective Common Interests (except that such Signage which is limited to
a particular occupant or occupants shall be borne by the owner of the Unit(s)
occupied by such occupants).
Section 4. COMMUNICATIONS EQUIPMENT. For so long as NYTC occupies
Units within the Building, the Common Interest attributable to which, in the
aggregate, constitutes at least twenty percent (20%), NYTC shall have the
exclusive right to decide the location of all communications equipment owned or
operated by others on the roof or elsewhere, only in order to prevent
interference with the functionality of its own communications equipment,
including the right to require existing communications equipment to be relocated
at the sole cost and expense of NYTC, if necessary in the sole discretion of
NYTC. At all times, (i) NYTC shall have the exclusive right to utilize the area
under the roof of the Improvements designated as the "NYTC control room" on
EXHIBIT H-1 attached hereto and (ii) the FC Unit Owners shall have the exclusive
right to utilize the area under the roof of the Improvements designated as the
"FC control room" on EXHIBIT H-1 attached hereto, in order to operate their
respective communications equipment, said areas to be part of the NYTC
Collective Unit and the FC Collective Unit, respectively. Subject to NYTC's
right to decide the location of all communications equipment in order to prevent
interference with the functionality of its own communications equipment, the
Unit Owners shall be entitled to use, in proportion to their Common Interests,
such areas of the roof as are designated for communications equipment by a
Majority in Interest of the Unit Owners. In no event shall said communications
equipment be placed in a manner or location which will interfere with the
efficient operation and use of the Building or any rooftop gardens in the
reasonable judgment of NYTC.
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Section 5. CANOPIES AND AWNINGS. Canopies and awnings may be placed
on the exterior facade of the Building only in the locations shown on Exhibit
H-3 and as otherwise required by DUO. The Board of Managers shall be responsible
for the installation, repair, maintenance and restoration of any such canopies
or awnings and the costs associated therewith shall be shared by the Unit Owners
in proportion to their respective Common Interests.
ARTICLE X
RIGHT TO MAKE ALTERATIONS, SUBDIVISIONS
Section 1. RIGHT TO PERFORM WORK. Subject to the provisions of each
Unit Lease, (a) any Unit Owner shall have the right, without the consent of the
Board of Managers (or the NYTC Board of Managers or the FC Board of Managers) or
of the other Unit Owner(s), to make Alterations or Repairs (collectively,
"WORK"), structural and non-structural, ordinary and extraordinary, in and to
the interior of its Unit (excluding any portion of the ground floor lobby
located within or appurtenant to its Unit, as to which the Board of Managers'
consent shall be required) (b) the Board of Managers shall have the right to
perform any Work in or to any of the Common Elements, (c) the NYTC Board of
Managers shall have the right to perform any Work in or to any of the NYTC
Limited Common Elements and (d) the FC Board of Managers shall have the right to
perform any Work in or to any of the FC Limited Common Elements; PROVIDED,
HOWEVER, that (i) no Unit Owner shall take any action or permit any action to be
taken which would (A) impair the structural integrity or otherwise change the
essential nature of the Building, including any change in the size of any other
Unit or any change in the physical relationship of any Unit to any other Unit(s)
owned by such Unit Owner or its Affiliates, (B) affect in any adverse manner, or
impede access to, any of the Common Elements (or the NYTC Limited Common
Elements or the FC Limited Common Elements, as applicable), (C) result in the
penetration of, or otherwise adversely affect the operation of, any other Unit
not owned by such Unit Owner or its Affiliates, (D) require any amendment of any
certificate of occupancy for the Building or any portion of the Building other
than in respect of such Unit Owner's Unit, (E) increase insurance or maintenance
costs unless such Unit Owner pays for such increase, or adversely affect
compliance with any legal requirements by, any other Unit, the Common Elements,
the NYTC Limited Common Elements or the FC Limited Common Elements, or (F)
affect the ground floor building lobby or create any additional entrances into
the Building from the Retail Areas, (ii) the Board of Managers shall not take
any action or permit any action to be taken which would (A) impair the
structural integrity or otherwise change the essential nature of the Building,
including any change in the size of any Unit or any change in the physical
relationship of any one Unit to the other(s), (B) impede access to any of the
Common Elements or any Unit, or (C) result in the penetration of, or otherwise
adversely affect the operation of, any Unit, (iii) the NYTC Board of Managers
shall not take any action or permit any action to be taken which would (A)
impair the structural integrity or otherwise change the essential nature of the
Building or, (B) without the consent of the NYTC Unit Owners whose Unit(s) are
adversely affected, (1) change the essential nature of the NYTC Collective Unit,
including any change in the size of any NYTC Individual Unit or any change in
the physical relationship of any one NYTC Individual Unit to the other(s), (2)
impede access to any of the NYTC Limited Common Elements or any NYTC Individual
Unit, or (3) result in the penetration of, or otherwise adversely affect the
operation of, any NYTC Individual Unit and (iv) the FC Board of Managers shall
not
36
take any action or permit any action to be taken which would (A) impair the
structural integrity or otherwise change the essential nature of the Building
or, (B) without the consent of the FC Unit Owners whose Unit(s) are adversely
affected, (1) change the essential nature of the FC Collective Unit, including
any change in the size of any FC Individual Unit or any change in the physical
relationship of any one FC Individual Unit to the other(s), (2) impede access to
any of the FC Limited Common Elements or any FC Individual Unit, or (3) result
in the penetration of, or otherwise adversely affect the operation of, any FC
Individual Unit. All Alterations or Repairs made by any Unit Owner to any Unit
or by the Board of Managers to any Common Elements shall comply with the terms
of the Unit Leases.
In addition, all Work performed by any Unit Owner to any Unit, by
the Board of Managers to any Common Elements, by the NYTC Board of Managers to
any NYTC Limited Common Elements or by the FC Board of Managers to any FC
Limited Common Elements shall comply with the terms of the Unit Leases.
Section 2. GENERAL WORK CONDITIONS. Any Work, whether performed by
the Unit Owners, the Board of Managers, the NYTC Board of Managers or the FC
Board of Managers, shall be performed in accordance with the following:
(a) the Person performing the Work, if other than the Board of
Managers, shall notify the Board of Managers in advance of any Work and keep
advised the Board of Managers as to the status and progress of such Work;
(b) the Work shall be conducted in a manner which minimizes any
interference with the access, use and occupancy of any other Unit (if performed
by a Unit Owner), the Common Areas (if performed by the Board of Managers), the
NYTC Limited Common Elements (if performed by the NYTC Board of Managers) and
the FC Limited Common Elements (if performed by the FC Board of Managers),
including without limitation, in the case of any Work being performed by a Unit
Owner which will unreasonably interfere with the access, use and occupancy of
any other Unit Owner's Unit or the access, use and occupancy of the Common
Areas, NYTC Limited Common Elements or FC Limited Common Elements, such Work
shall be performed at hours ("OVERTIME HOURS") other than Business Hours on
Business Days ("OVERTIME WORK") and such Overtime Work shall be at the cost of
the party performing such Work, except as provided in the following sentence. If
a Unit Owner desires in order to prevent disruption of its business operations,
it may require that Work to be performed by or on behalf of another Unit Owner
as Overtime Work not be performed at particular hours or on particular days
("PROHIBITED OVERTIME HOURS") which would otherwise satisfy the requirement of
the preceding sentence as to Overtime Hours, provided that the Unit Owner
imposing such requirements and restrictions shall pay the incremental additional
costs, if any, incurred by the Unit Owner performing such Work which costs are
the result of being prohibited from performing such Work during Prohibited
Overtime Hours;
(c) the Work shall be performed in accordance with all applicable
Laws and Insurance Requirements,
(d) the Work shall be prosecuted diligently to completion;
37
(e) the Person performing the Work shall supply the Board of
Managers, the NYTC Board of Managers and the FC Board of Managers with a copy of
the plans and specifications therefor, if any, at least seven (7) business days
prior to commencing such Work; and
(f) any damage to the Premises or any other property resulting from
such Work shall be promptly repaired by, and at the sole cost and expense of,
the Person performing the Work which caused the damage.
Section 3. MECHANIC'S LIENS; VIOLATIONS. (a) If any mechanic's or
other like lien (including any emergency repair, environmental control board or
other similar lien and charge, or any public improvement lien) is filed against,
or if any violation is asserted against, any portion of the Premises, for work
done (or claimed to have been done) or materials furnished (or claimed to have
been furnished) to or for the benefit of any Unit Owner, the Board of Managers,
the NYTC Board of Managers or the FC Board of Managers, then such Unit Owner,
the Board of Managers, the NYTC Board of Managers or the FC Board of Managers,
as the case may be, shall, within thirty (30) days after the filing or assertion
of such lien or violation, discharge or cancel of record or dismiss or release
such lien or violation (and, in the case of any violation, cause the reason for
such violation to be remedied), all at the cost and expense of such Unit Owner,
the Board of Managers, the NYTC Board of Managers or the FC Board of Managers,
as the case may be.
(b) If the responsible Unit Owner does not discharge or cancel of
record or dismiss or release any mechanic's or like lien or violation (as
provided in, and within the time provided in, the preceding subparagraph (a))
and such lien or violation is filed or asserted against any Unit not owned by
such Unit Owner, then, at any time after the thirtieth (30th) day following the
filing or assertion of such lien or violation, the Board of Managers may cause
the lien to be bonded or discharged of record or the violation (or the fine
resulting therefrom) to be cured or paid. All costs and expenses incurred by the
Board of Managers, in such instance, shall be paid (or reimbursed) by the
responsible Unit Owner within two (2) business days of receipt of an invoice
therefor. If not so paid or reimbursed within the aforesaid two (2) business day
period, then (i) the Board of Managers shall have a lien on (and the right to
file such lien against) the Unit of the responsible Unit Owner in the amount of
the lien or violation (plus interest as provided in clause (ii) of this
sentence) and (ii) interest on the delinquent amount, at the Interest Rate,
shall accrue from the date such costs and expenses shall have been incurred by
the Board of Managers until the date on which such costs and expenses shall be
paid (or reimbursed) by the responsible Unit Owner to the Board of Managers.
(a) The NYTC Board of Managers shall have the same rights with
respect to Units within the NYTC Collective Unit and the NYTC Unit Owners shall
have the same obligations to the NYTC Board of Managers all as set forth in
subsection (b) above as if the NYTC Board of Managers were the Board of Managers
and the NYTC Unit Owners were the Unit Owners. Any liens against a particular
Unit under this Declaration which are held by the Board of Managers and the NYTC
Board of Managers shall be held on a pari passu basis.
(b) The FC Board of Managers shall have the same rights with respect
to Units within the FC Collective Unit and the FC Unit Owners shall have the
same obligations to the FC
38
Board of Managers all as set forth in subsection (b) above as if the FC Board of
Managers were the Board of Managers and the FC Unit Owners were the Unit Owners.
Any liens against a particular Unit under this Declaration which are held by the
Board of Managers and the FC Board of Managers shall be held on a pari passu
basis.
Section 4. BOARD OF MANAGERS, NYTC BOARD OF MANAGERS, FC BOARD OF
MANAGERS AND OTHER UNIT OWNERS NOT LIABLE. Neither the Board of Managers, the
NYTC Board of Managers, the FC Board of Managers, nor the non-defaulting Unit
Owners shall be liable for any labor or materials furnished or to be furnished
to any Unit Owner upon credit, and no lien for any such labor or materials shall
attach to or affect the reversion or other estate or interest of the Board of
Managers, the NYTC Board of Managers or the FC Board of Managers or any other
Unit Owner.
Section 5. RIGHT TO SUBDIVIDE; AMENDING DECLARATION TO CONFIRM UNIT
DESCRIPTIONS. (a) No Unit Owner shall have the right to subdivide or to combine
its Unit(s), except with the prior written consent of (and upon compliance by
the Unit Owners with such conditions as shall be imposed by) a Majority in
Interest of the Unit Owners and Ground Lessee, each in its sole and absolute
discretion. Any cost incurred by the Board of Managers in connection with any
approved subdivision or combination shall be at the sole cost and expense of the
Unit Owner attempting to subdivide or combine its Unit and shall be payable on
demand. Notwithstanding the foregoing, FC Unit Owner shall have the right,
without the consent of a Majority in Interest of the Unit Owners and Ground
Lessee and without payment to the Board of Managers, to subdivide or combine its
FC Individual Unit into or with one or more FC Individual Units pursuant to and
in accordance with the terms and conditions of Section 13.12 of the applicable
FC Unit Lease or as required to effectuate a conveyance to NYTC pursuant to
ARTICLE XX of this Declaration.
(b) If deemed necessary by the Board of Managers or a Majority in
Interest of the Unit Owners, following any Work, capital improvements, changes
to the Common Areas, subdivision, acquisition or lease, the Board of Managers
(acting on behalf of the Unit Owners) shall notify in writing the Unit Owners
and the Unit Owners shall amend the descriptions of the Units set forth herein
to more accurately reflect the Units. If required under the Ground Lease, the
Board of Managers shall obtain Ground Lessee's prior written consent to such
amendment. Any cost incurred by the Board of Managers in connection with any
such amendment shall be borne by the Unit Owner (or proportionately by the Unit
Owners) initiating the change.
ARTICLE XI
ENCROACHMENTS; EASEMENTS; ACCESS
Section 1. ENCROACHMENTS. Declarant hereby creates easements for
each of the following encroachments and for the maintenance of the same, so long
as the Building stands (or is rebuilt or restored, as provided in the By-Laws,
following a fire or other casualty or condemnation or eminent domain
proceedings):
39
(a) any encroachment existing on the date hereof of any of the
Common Elements upon any Unit;
(b) any encroachment existing on the date hereof of any Unit upon
any other Unit, any of the Common Elements, any of the NYTC Limited Common
Elements or any of the FC Limited Common Elements; and
(c) any encroachment arising after the date hereof of any of the
Common Elements, NYTC Limited Common Elements or FC Limited Common Elements upon
any Unit, and any encroachment arising after the date hereof of any Unit upon
any other Unit, upon any of the Common Elements, any of the NYTC Limited Common
Elements or any of the FC Limited Common Elements, in any case:
(i) resulting from the settling or shifting of the Building;
or
(ii) resulting from the performance of any Work in or to any
of the Common Elements, NYTC Limited Common Elements or FC Limited Common
Elements, provided that such encroachment does not adversely affect the
use or occupancy of(or ingress to or egress from) any Unit, Common
Elements, NYTC Limited Common Elements or FC Limited Common Elements and
provided such work was performed in accordance with this Declaration; or
(iii) resulting from any rebuilding or restoration following a
fire or other casualty or a condemnation or eminent domain proceedings,
provided that such encroachment does not adversely affect the use or
occupancy of(or ingress to or egress from) any Unit, the Common Elements,
the NYTC Limited Common Elements or the FC Limited Common Elements and
provided such work was performed in accordance with this Declaration.
Section 2. EASEMENTS AND RIGHTS OF THE BOARD OF MANAGERS, NYTC BOARD
OF MANAGERS AND FC BOARD OF MANAGERS.
(a) The Board of Managers or its designees shall have an easement
over the Units for access to, and to use, maintain and make Repairs and
Alterations to, all Common Elements. The Board of Managers or its designees
shall also have the right to enter any Unit in order: (i) to inspect the same or
any property therein to ensure compliance with the terms and provisions of this
Declaration; or (ii) to perform any Work in order to: (y) prevent damage to such
Unit or to any other portion of the Premises; or (z) remedy any default by any
Unit Owner under this Declaration or the By-Laws. Prior to the performance of
any Work by the Board of Managers under clause (ii)(y) or (z) above, the Board
of Managers, except in the event of an emergency, shall give reasonable prior
notice of the Work to be performed, in reasonable detail, to the affected Unit
Owner and to the Registered Mortgagee(s) of the affected Unit Owner and shall
provide such Unit Owner and the Registered Mortgagee(s) of the affected Unit
Owner with a period of thirty (30) days to perform such Work; PROVIDED, HOWEVER,
that if such Work cannot, with due diligence and continuity, be completed within
thirty (30) days, then if the Unit Owner or the Registered Mortgagee(s) of the
affected Unit Owner shall commence the Work within thirty (30) days of its (or
their) receipt of such notice, the aforesaid period shall be extended for
40
so long as the Unit Owner (or its Registered Mortgagee) shall be prosecuting
such Work with due diligence and continuity. In addition, provided that the use
and enjoyment of any Unit is not adversely affected, the Board of Managers
reserves the right to establish, grant and reserve easements and rights-of-way
in, through, under, over and across the Common Elements for the installation,
maintenance and inspection of lines and appurtenances for additional electric,
transformer, amplifier, gas, telephone, public or private water, sewer,
drainage, and other utilities, and to relocate any existing utility, sewer and
drainage easements in any portion of the Premises, if the Board of Managers
reasonably shall deem it necessary or desirable for the proper operation and
maintenance of the Common Elements.
(b) The NYTC Board of Managers shall have the same easements over
the NYTC Individual Units and the same rights with respect to the NYTC Limited
Common Elements as the Board of Managers has regarding the Units and the Common
Elements set forth in subsection (a) above.
(c) The FC Board of Managers shall have the same easements over the
FC Individual Units and the same rights with respect to the FC Limited Common
Elements as the Board of Managers has regarding the Units and the Common
Elements set forth in subsection (a) above.
Section 3. EASEMENTS OF ALL UNIT OWNERS.
(a) UNIT OWNER EASEMENTS OF USE, INGRESS, EGRESS AND SUPPORT.
(i) Each Unit Owner shall have, in common with all other Unit
Owners, an easement for the use of the Common Elements. Each Unit Owner shall
have an easement over, in and through the Common Areas for ingress and egress to
and from its Unit. Each Unit and the Common Elements shall have easements of
subjacent support and necessity, and the same shall be subject to such easements
in favor of all of the other Units and the Common Elements;
(ii) Each of the NYTC Unit Owners shall have in common with
all other NYTC Unit Owners, an easement for the use of the NYTC Limited Common
Elements and an easement over, in and through the NYTC Limited Common Areas for
ingress and egress to and from its Unit. Each NYTC Individual Unit and the NYTC
Limited Common Elements shall have easements of subjacent support and necessity,
and the same shall be subject to such easements in favor of all of the other
NYTC Individual Units and the NYTC Limited Common Elements; and
(iii) Each of the FC Unit Owners shall have in common with all
other FC Unit Owners, an easement for the use of the FC Limited Common Elements
and an easement over, in and through the FC Limited Common Areas for ingress and
egress to and from its Unit. Each FC Individual Unit and the FC Limited Common
Elements shall have easements of subjacent support and necessity, and the same
shall be subject to such easements in favor of all of the other FC Individual
Units and the FC Limited Common Elements.
No such easement shall result in the penetration of a Unit unless such
easement is required to comply with applicable Law and no other economically
reasonable and structurally viable alternative is available.
41
(b) RIGHTS OF UNIT OWNERS. Each Unit Owner shall have the right,
upon five (5) business days prior notice to the another Unit Owner, to enter and
pass through such other Unit Owner's Unit for the purpose of performing Work in
and to any part of an FC Individual Unit or NYTC Individual Unit, as the case
may be, which Work cannot be done from within the Unit of the Unit Owner
requesting such entry. Any such Work shall (a) be performed in such a way so as
to minimize interference with the operation of the other Units, (b) not reduce
the size (including, without limitation slab to slab heights) or volume of the
other Units, (c) at the election of the Unit Owner into whose Unit another Unit
Owner is entering, be supervised by personnel of such Unit Owner, which
supervision shall be at the expense of the Unit Owner requesting such Work; and
(d) be subject to the other provisions set forth in SECTION 2(b) of ARTICLE X
hereof.
Section 4. GENERAL. (a) The easements granted in this ARTICLE XI may
be exercised without the necessity of obtaining the consent of the Board of
Managers, the NYTC Board of Managers, the FC Board of Managers and/or other Unit
Owners.
(b) Whenever in this Declaration or the By-Laws, the Board of
Managers, the NYTC Board of Managers, the FC Board of Managers or any Unit Owner
is permitted to enter a Unit:
(i) such right of entry shall be at such times as are
reasonably convenient and on prior notice to the affected Unit Owner,
except in the event of an emergency,
(ii) such right of entry shall not unreasonably interfere with
the normal access, use and enjoyment of such Unit, the Common Elements,
the NYTC Limited Common Elements or the FC Limited Common Elements, as
applicable;
(iii) the Unit Owner of the Unit being entered shall have the
right to have a representative present at all times during such entry;
(iv) the Person making such entry shall comply with any
reasonable security procedures and reasonable security requirements of the
Unit Owner or other occupant of the Unit being entered; PROVIDED, HOWEVER,
that such procedures and requirements shall not preclude entry into the
Unit; and
(v) any damage to the Unit being entered shall promptly be
repaired and/or restored at the sole cost and expense of the Person making
such entry.
ARTICLE XIII
ATTORNEYS-IN-FACT
(a) Each Unit Owner shall grant to the Board of Managers an
irrevocable power of attorney, coupled with an interest, (i) to sublease or
acquire the leasehold interest in any Unit together with its appurtenant
interest which becomes the subject of a foreclosure or other similar
42
sale, as provided in this Declaration and the By-Laws, (ii) to convey, sublease,
sell, mortgage or otherwise deal with the leasehold interest in any Unit so
acquired and (iii) subject to the provisions of this Declaration and the
By-Laws, to execute, acknowledge and deliver any agreement, consent, covenant,
restriction, easement, or declaration, or any amendment thereto, affecting the
Condominium or the Common Elements that the Board of Managers deems necessary or
appropriate. The Board of Managers shall give to the Unit Owners ten (10)
business days prior written notice before executing any document by power of
attorney, which notice shall be accompanied by a copy of the documents proposed
to be executed.
(b) Each NYTC Unit Owner hereby grants to the NYTC Board of Managers
the same powers as granted by the Unit Owners to the Board of Managers in
subsection (a) above, as the same shall relate to the NYTC Limited Common
Elements.
(c) Each FC Unit Owner hereby grants to the FC Board of Managers the
same powers as granted by the Unit Owners to the Board of Managers in subsection
(a) of this Article XII, as the same shall relate to the FC Limited Common
Elements.
(d) Notwithstanding anything herein to the contrary, the provisions
of this Article XII shall not apply to a Unit Owner that is a Public Party.
ARTICLE XIII
PERSON TO RECEIVE SERVICE
The Secretary of State of the State of New York is hereby designated
to receive service of process in any action or proceeding which may be brought
against the Association. The Secretary of State, in such event, shall deliver a
copy of any such process or notice to The New York Times Building Association,
Inc., c/o The New York Times Company, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention General Counsel. Following the date the NYTC Unit Owner
notifies the Board of Managers that it has occupied the Building for conduct of
business, the foregoing address for notices shall be changed to c/o The New York
Times Company at the address of the Building, attention General Counsel. The
Board of Managers shall deliver promptly to each Unit Owner, Ground Lessee and
each Unit Owner's Registered Mortgagee copies of any notices received by the
Board of Managers pursuant to this Article XIII.
ARTICLE XIV
ADMINISTRATION
The administration of the Condominium shall be in accordance with
the provisions of this Declaration and with the provisions of the By-Laws.
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UNIT OWNERSHIP
Upon any transfer with respect to a Unit, the purchaser, transferee
or assignee thereunder shall automatically become the Unit Owner with respect to
such Unit and shall remain such (and shall be bound by the provisions of this
Declaration and of the By-Laws) until such time as it ceases to own such
leasehold interest for any reason.
ARTICLE XVI
GRANTEE LIABLE FOR UNPAID ASSESSMENTS UPON SALE
In any conveyance of a Unit, whether by voluntary instrument,
operation of law or judicial proceedings, in accordance with the Unit Leases,
this Declaration or the By-Laws, the grantee thereunder shall be jointly and
severally liable with the grantor thereunder for any unpaid Unit Owner Expenses
against the latter assessed and due up to the time of such conveyance and all
other obligations of the Unit Owner under this Declaration and the By-Laws and
accruing prior to the time of the conveyance, all without prejudice to the
grantee's right to recover from the grantor the amounts paid by the grantee
therefor. Any such grantee (or any Registered Mortgagee thereof) shall be
entitled to a statement from the Board of Managers and the NYTC Board of
Managers or FC Board of Managers, as applicable, setting forth the amount of the
unpaid Unit Owner Expenses against the grantor and such grantee shall not be
liable for, nor shall the interest in the Unit conveyed be subject to a lien
for, any unpaid Unit Owner Expense against the grantor in excess of the amount
set forth in such statement. Notwithstanding any provision in this Declaration
or the By-Laws to the contrary, in no event shall any Public Party be liable for
any Unit Owner Expense (including any interest accruing thereon or other
monetary amounts due from a Unit Owner under this Declaration or the By-Laws)
accruing for any period during which such Public Party was not itself a Unit
Owner, with all such Unit Owner Expenses and other monetary amounts being the
responsibility of the Unit Owners existing at the time such Unit Owner Expense
accrued (without such Unit Owners waiving any rights or remedies against a
defaulting Unit Owner).
ARTICLE XVII
AMENDMENT OF DECLARATION
Section 1. GENERAL PROVISIONS REGARDING AMENDMENT. (a) VOTE BY UNIT
OWNERS. This Declaration may be amended only by the Unit Owners at a meeting
duly held in accordance with the provisions of the By-Laws and in accordance
with the following:
(a) GROUND LESSEE'S APPROVAL RIGHTS. The Unit Owners shall submit a
draft of any supplement, amendment or modification of this Declaration to Ground
Lessee and Ground Lessee shall have the right to approve same if, subject to,
and to the extent provided by, the Unit Leases. Any supplement, amendment or
modification which is entered into without notice to (and approval by) Ground
Lessee shall be void AB INITIO.
44
(b) APPROVAL RIGHTS OF REGISTERED MORTGAGEES. Each Unit Owner shall
submit a draft of any supplement, amendment or modification of this Declaration
to its Registered Mortgagee(s) (if any) and such Registered Mortgagee(s) shall
have the right to approve same (such approval not to be unreasonably withheld).
Any supplement, amendment or modification which is entered into without notice
to (and approval by) each Unit Owner's Registered Mortgagees shall be void AB
INITIO. Any approval or disapproval of an amendment hereto shall be given by
each Registered Mortgagee within ten (10) Business Days of each such Registered
Mortgagee's receipt of a written request therefor, and each such Registered
Mortgagee's failure to timely respond to any such request (I.E., within such ten
(10) Business Day period) shall, subject to the provisions of SECTION 4 of
ARTICLE XXIII hereof, constitute (and be deemed to constitute) each such
Registered Mortgagee's approval of the proposed amendment.
(c) RECORDING OF AMENDMENTS. No amendment hereof shall be effective
until recorded in the Register's Office.
Section 2. EXECUTION AND DELIVERY OF AMENDMENTS. Any amendment to
this Declaration approved in accordance with Section 1 of this Article XVII
shall be executed on behalf of each Unit Owner by its general partner, managing
member, officer or other authorized person of such Unit Owner.
ARTICLE XVIII
TERMINATION OF CONDOMINIUM; PURCHASE OPTION UNDER GROUND LEASE
Section 1. WITHDRAWAL BY UNIT OWNERS. The Condominium shall continue
until such time as withdrawal of the Property from the provisions of the
Condominium Act and termination of this Condominium is authorized by a unanimous
vote of all of the Unit Owners and their Registered Mortgagees and approved in
writing by the Ground Lessee if and to the extent such approval is required
under the Unit Leases. In the event of any such withdrawal and termination, the
Unit Owners shall (i) (a) enter into (and record in the Register's Office) a
reciprocal easement agreement or (b) create a "common law condominium" modeled
upon (and containing substantially the same provisions as) this Declaration and
the By-Laws (and record the same in the Register's Office), in either case
providing for substantially the same administration of and level of maintenance
and repair in respect of the "common areas", the "NYTC limited areas" and the
"FC limited areas" of the Premises as are provided in the Condominium created
herein, and (ii) amend the Unit Leases so that the descriptions of the premises
demised thereunder no longer refer to condominium Units (and appurtenant
interests in Common Elements) but to the spaces and area demised thereunder (and
appurtenant interests in the "common areas", the "NYTC limited areas" and the
"FC limited areas" of the Premises, as described in the reciprocal easement
agreement (or condominium, as the case may be) referred to in the preceding
subclause (i)).
Section 2. PURCHASE OPTION UNDER UNIT LEASES. Except as otherwise
set forth in this Section 2, the decision to exercise the purchase option set
forth in Article V of the Unit Leases shall be made solely by NYTC Unit Owner,
and if NYTC Unit Owner exercises the purchase option set forth in Article V of
the NYTC Unit Lease, then each FC Unit Owner and
45
the Retail Unit Owner shall simultaneously exercise the purchase option set
forth in Article V of its respective Unit Lease, and thereupon each Unit Owner
shall take all actions required under its respective Unit Lease in connection
with the exercise of such purchase option. If any FC Unit Owner or the Retail
Unit Owner, by exercising such purchase option, will forfeit its right to
reimbursement for Excess Site Acquisition Costs, then the NYTC Unit Owner shall,
on the exercise of such purchase option, pay to each such FC Unit Owner and the
Retail Unit Owner an amount equal to such FC Unit Owner's and Retail Unit
Owner's forfeited Excess Site Acquisition Costs. Notwithstanding the foregoing,
if NYTC Unit Owner has not exercised the purchase option set forth in Article V
of the NYTC Unit Lease on or before the date which is five (5) years prior to
the date which is 99 years after the Commencement Date (as defined in the Ground
Lease), then any FC Unit Owner or the Retail Unit Owner or both shall have the
right to exercise the purchase option set forth in Article V of its respective
Unit Lease and, in such event, NYTC Unit Owner and the remaining Unit Owners
simultaneously shall exercise the corresponding purchase options under their
respective Unit Leases, and thereupon such Unit Owners shall take all actions
necessary or required under its respective Unit Lease in connection with the
exercise of such purchase option. In the event of the exercise of the aforesaid
purchase options, the Unit Owners shall contemporaneously therewith enter into
(and record in the Register's Office) an amendment to this Declaration to
convert the same to a fee condominium on substantially the terms, covenants and
conditions herein contained.
ARTICLE XIX
COVENANT OF FURTHER ASSURANCES
Any Person who is subject to this Declaration (including any Unit
Owner or any Person claiming by, through or under any Unit Owner, the Declarant,
the Board of Managers, the NYTC Board of Managers, the FC Board of Managers and
any Manager or officer) (the "SUBJECT PARTY") shall execute, acknowledge and
deliver to any such other Person such documents and take such other action as
such other Person may reasonably request in order to effectuate the provisions
of this Declaration or the By-Laws and the realization of the benefits intended
to be conferred thereby, provided, however, that such document or action does
not decrease the rights or increase the obligations of the Subject Party, any
Unit Owner under this Declaration or the By-Laws. Except as otherwise provided
in this Declaration or the By-Laws, all expense and liability thus incurred
shall be borne by the requesting Person. If any Subject Party fails or refuses
within five (5) days after request therefor to execute, acknowledge or deliver
any such document or to take any such action, then the Board of Managers is
hereby authorized to act as attorney-in-fact for such Subject Party, coupled
with an interest and granted for a valuable consideration, to execute,
acknowledge and deliver such document and to take such action in the name of
such Subject Party.
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ARTICLE XX
SALES, SUBLEASES AND MORTGAGES
Section 1. UNIT OWNERS' RIGHTS TO SELL, SUBLEASE OR MORTGAGE UNITS.
Subject to the provisions of this Declaration, the By-Laws and the applicable
Unit Lease, any Unit Owner may, without prior consent of any Person, mortgage or
sublease its leasehold interest in, or Sell, its Unit or transfer any interests
in such Unit Owner, so long as (a) such Sale, sublease or mortgage of a Unit is
permitted by, and complies with, the applicable provisions of its Unit Lease,
and (b) the proposed subtenant or purchaser of a Unit (i) shall not be a
prospective subtenant or assignee with whom another Unit Owner has negotiated a
term sheet for a sublease or assignment within the prior three (3) months and is
not then a subtenant of such Unit Owner, (ii) shall not be an entity described
in item (i) on EXHIBIT I attached hereto ("NYTC COMPETING USER") as to the
Retail Unit and any FC Individual Unit and (iii) shall not be permitted to use
the Unit for the uses described in items (2)-(18) on EXHIBIT I attached hereto
("PROHIBITED USES"). The restrictions set forth in clause (b)(ii) of this
SECTION 1 regarding the Sale or subleasing of the Retail Unit and the FC
Individual Units to a NYTC Competing User shall not apply (x) unless NYTC
occupies Units within the Building, the Common Interest attributable to which,
in the aggregate, constitutes at least twenty percent (20%) and (y) as to any
entity which is an NYTC Competing User at any time from and after the date the
SPU Unit and/or any NYTC Individual Unit is sold or subleased to such entity
(but shall continue to apply to any other entity which would constitute an NYTC
Competing User). Each Unit Owner shall notify the Board of Managers of any
proposed Sale, sublease or mortgage of a Unit at least twenty (20) days prior to
the effective date of any such Sale, sublease or mortgage of a Unit. Each NYTC
Unit Owner shall notify promptly the FC Unit Owners at any time NYTC occupies
Units within the Building, the Common Interest attributable to which, in the
aggregate, constitutes LESS THAN twenty percent (20%). Each NYTC Unit Owner
shall, from time to time within ten (10) days after request by an FC Unit Owner,
certify in writing to such FC Unit Owner the amount of space within its NYTC
Individual Unit that is owned pursuant to a Unit Lease by NYTC and its
Affiliates and the amount of space within its Unit that is occupied by NYTC. So
long as NYTC occupies Units within the Building, the Common Interest
attributable to which, in the aggregate, constitutes at least twenty percent
(20%), each FC Unit Owner shall from time to time within ten (10) days after
request by NYTC certify in writing to NYTC whether there are any subleases
affecting its FC Individual Unit, and if so, the term of any such sublease and
whether or not such sublease includes any expansion or extension options. Each
FC Unit Owner agrees to include in any sublease entered into by it for space
within its Unit that is subject to an NYTC purchase or sublease option under
Section 4 or Section 5 of this Article XX, a provision that the subtenant
thereunder agree that upon the exercise by NYTC of such option, if any, to
deliver to NYTC without cost to NYTC, copies of any drawings and/or CADD design
files in such subtenant's possession for all leasehold improvements made by or
on behalf of such subtenant to such Unit on an "as-built basis."
Section 2. FC UNIT OWNERS' LOCKOUT PERIOD. Notwithstanding Section 1
of this Article XX, so long as NYTC owns a leasehold interest in (including
without limitation as the tenant under a sale-leaseback or similar structure),
and occupies, Units within the Building, the Common Interest attributable to
which, in the aggregate, constitutes at least twenty percent (20%), no FC Unit
Owner shall Sell its FC Individual Unit or permit the sale of an interest in
47
said FC Unit Owner until the fifteenth (15th) anniversary of the date of the
Operating Agreement [i.e. December 12, 2001] (or such earlier date as NYTC shall
cease to own a leasehold interest in and occupy Units within the Building, the
Common Interest attributable to which, in the aggregate, constitutes at least
twenty percent (20%), the "LOCKOUT PERIOD") except (a) to NYTC, (b) to an
Affiliate of Forest City Enterprises, Inc. or Xxxxx X. Xxxxxx, (c) to a Family
Member of Xxxxx X. Xxxxxx, provided Xxxxx X. Xxxxxx shall retain Management
Control following such transfer (or, if Xxxxx X. Xxxxxx shall be incompetent or
deceased, then such Family Member or Family Members of Xxxxx X. Xxxxxx shall
retain such management control), or (d) to a trust established for the benefit
of Xxxxx X. Xxxxxx or his Family Members, or any further transfer to the
beneficiaries of such trust, provided Xxxxx X. Xxxxxx shall retain Management
Control following such transfer (or, if Xxxxx X. Xxxxxx shall be incompetent or
deceased, then such Family Member or Family Members of Xxxxx X. Xxxxxx shall
retain such Management Control). Except as provided in the following sentence,
any purchaser or transferee of a leasehold interest in any FC Individual Unit or
any interest in FC Unit Owner shall be continue to be bound by the restrictions
set forth in this Section 2. The restrictions set forth in this Section 2 shall
not apply to transfers of any interest (x) in an FC Unit Owner or to a Sale of
an FC Individual Unit permitted under the Recognition Agreement (which transfers
and Sales shall be subject to the NYTC Participation Rights set forth in the
Recognition Agreement), (y) to transfers of any FC Individual Unit in
foreclosure or deed in lieu of foreclosure to any Registered Mortgagee or its
nominee or any transfer of such FC Individual Unit after title has been conveyed
pursuant to such foreclosure or deed in lieu of foreclosure or (z) to Ground
Lessee from and after the termination of the applicable Unit Lease, or to any
transfers thereafter. Any Sale in violation of this SECTION 2 shall be null and
void.
Section 3. NYTC'S RIGHT OF FIRST REFUSAL AND RIGHT OF FIRST OFFER TO
PURCHASE FC INDIVIDUAL UNIT(S).
(a) NYTC'S RIGHT OF FIRST REFUSAL. If an FC Unit Owner makes or
receives a bona fide offer (or, in the case of an FC Unit Owner Interest Sale, a
series of related offers) which is acceptable to such FC Unit Owner for either
(i) the Sale of any FC Individual Unit(s) owned by such FC Unit Owner to an
independent third party that is not an Affiliate of such FC Unit Owner or an
Affiliate of any of the members of such FC Unit Owner (an "FC INDIVIDUAL UNIT
SALE") or (ii) the sale, in a single transaction or a series of related
transactions, of ninety five percent (95%) or more of the membership interests
of such FC Unit Owner to an independent third party that is not an Affiliate of
such FC Unit Owner or an Affiliate of any of the members of such FC Unit Owner
(an "FC UNIT OWNER INTEREST SALE"), such FC Unit Owner shall notify NYTC and
shall deliver to NYTC a term sheet ("SECTION 3(a) TERM SHEET") fully executed by
such FC Unit Owner and the prospective purchaser or transferee containing all of
the pertinent terms of such proposed FC Individual Unit Sale or FC Unit Owner
Interest Sale, including without limitation, the name of the proposed purchaser,
the purchase price, deposit, financing arrangements, contingencies, conditions,
closing date and any other economic and material non-economic terms of such
transaction. Except as expressly provided in the immediately preceding sentence,
the right of first refusal provided in this Section 3(a) shall not apply to a
sale of any direct or indirect beneficial interest in any FC Unit Owner.
Within the thirty (30) day period after receipt of both the notice
and the Section 3(a) Term Sheet from such FC Unit Owner and delivery to NYTC of
complete copies of all
48
leases, brokerage agreements, service and maintenance agreements, union or
employment agreements and other relevant and underlying documentation regarding
the FC Individual Unit that is being sold (or that is owned by the FC Unit Owner
that is subject to the FC Unit Owner Interest Sale) which the prospective
purchaser will be required to assume or to which it will be required to take
subject or as to which the FC Unit Owner will continue to have any obligations
or liabilities following the FC Individual Unit Sale or FC Unit Owner Interest
Sale, NYTC shall have the right to inspect such documents and to conduct other
due diligence review with respect to the FC Individual Unit that is being sold
or that is owned by the FC Unit Owner that is subject to the FC Unit Owner
Interest Sale. NYTC or its designee shall have the option to elect within said
thirty (30) day period by written notice to such FC Unit Owner, together with
(a) (i) the deposit, if any, in the amount set forth in such Section 3(a) Term
Sheet, or (ii) so long as NYTC shall have a rating of A- or better as determined
by the Rating Agency, a guaranty of the obligations of NYTC under the Sale and
Purchase Agreement by NYTC in substantially the form attached hereto as EXHIBIT
K (an "NYTC PURCHASE GUARANTY"), and (b) an executed counterpart of a Sale and
Purchase Agreement in substantially the form attached hereto as EXHIBIT J (a
"SALE AND PURCHASE AGREEMENT") with such changes as are necessary to conform to
the provisions contained in the Section 3(a) Term Sheet (excluding however any
due diligence period contained therein), either to purchase the leasehold or fee
interest in the FC Individual Unit that is being sold or that is owned by the FC
Unit Owner that is subject to the FC Unit Owner Interest Sale or the membership
interests that are subject to the FC Unit Owner Interest Sale, in either case
for an amount in cash equal to the consideration set forth in the Section 3(a)
Term Sheet, which, if such consideration is not all cash, shall be valued in
cash equal to the consideration set forth in the Section 3(a) Term Sheet. If,
within said thirty (30) day period, NYTC or its designee elects to purchase such
interest in the FC Individual Unit or the FC Unit Owner and delivers either such
deposit or NYTC Purchase Guaranty (as the case may be) together with the Sale
and Purchase Agreement to the FC Unit Owner, then the FC Unit Owner shall
promptly execute (or cause the members in the FC Unit Owner to execute, as the
case may be) a counterpart of the Sale and Purchase Agreement and deliver it to
NYTC or its designee. The closing shall take place on the later to occur of(i)
the closing date set forth in the Section 3(a) Term Sheet and (ii) sixty (60)
days after NYTC elects to purchase such interest (or the first Business Day
thereafter), and time shall be of the essence as of the date which is ten (10)
Business Days after the date set forth in clause (i) or (ii) of this sentence,
as the case may be. If NYTC fails to exercise such right and deliver such
deposit or NYTC Purchase Guaranty (as the case may be), together with the Sale
and Purchase Agreement within the time and in the manner required in this
SECTION 3(a), or waives such right in writing, such FC Unit Owner shall be free
to consummate the FC Individual Unit Sale or FC Unit Owner Interest Sale to the
proposed purchaser for the consideration and upon the other provisions set forth
in the Section 3(a) Term Sheet, provided the provisions of the Section 3(a) Term
Sheet are in accordance with and subject to the provisions of this Declaration
and By-Laws. NYTC agrees to execute and deliver to the FC Unit Owner and the
proposed purchaser at the earlier of(x) the end of said thirty (30) day period
and (y) the date it waives this right of first refusal in writing, a waiver and
estoppel letter (the "NYTC WAIVER AND ESTOPPEL LETTER") in the form attached
hereto as EXHIBIT O with the appropriate section reference and dates, names and
addresses completed as appropriate. The failure of NYTC to execute and deliver
an NYTC Waiver and Estoppel Letter shall in no event invalidate its failure to
exercise its right of first refusal under this Section 3(a) and the consequent
waiver of such right.
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If the FC Individual Unit Sale or FC Unit Owner Interest Sale
pursuant to this Section 3(a) is not consummated within twelve (12) months after
the expiration of the earlier of the date NYTC fails to exercise its right of
first refusal as hereinabove required and the date NYTC waives such right in
writing (the "12-MONTH PERIOD"), the FC Unit Owner shall be required to comply
again with the provisions of this Section 3(a) and re-offer the Unit in question
to NYTC prior to any FC Individual Unit Sale or FC Unit Owner Interest Sale,
whether such proposed FC Individual Unit Sale or FC Unit Owner Interest Sale is
on the same or different terms (or to the same or different prospective
purchaser) as set forth in the original notice and Section 3(a) Term Sheet sent
to NYTC, and the 30-day period for NYTC to accept such offer hereinabove
provided for shall again apply to such re-offer. In addition, in the event the
FC Unit Owner modifies the terms set forth in the original Section 3(a) Term
Sheet at any time (i.e., whether or not during the 12-Month Period), FC Unit
Owner shall be required to comply again with the provisions of this Section 3(a)
and re-offer the Unit in question to NYTC on such modified terms prior to the FC
Individual Unit Sale or FC Unit Owner Interest Sale, and the 30-day period for
NYTC to accept such offer hereinabove provided for shall again apply with
respect to such re-offer; provided, however, that (i) if the sole change in
terms is a reduction of the purchase price and/or other consideration for the FC
Individual Unit Sale or FC Unit Owner Interest Sale such that the total amount
of the purchase price and other consideration is not less than 95% of the total
purchase price and other consideration contained in the original Section 3(a)
Term Sheet, and (ii) such re-offer to NYTC is made during the sixty (60) day
period following the date NYTC waives or is deemed to have waived the offer
contained in the original Section 3(a) Term Sheet pursuant to this Section 3(a),
the obligation to re-offer the Unit or interests to NYTC shall nevertheless
apply, but the time period for NYTC to accept such re-offer of the Unit or
interests shall be limited to (i) five (5) Business Days following receipt of
the revised Section 3(a) Term Sheet if such reduction is being made in
connection with a proposed FC Individual Unit Sale or FC Unit Owner Interest
Sale to the purchaser set forth in the original Section 3(a) Term Sheet, and
(ii) ten (10) Business Days following receipt of the revised Section 3(a) Term
Sheet if such reduction is being made in connection with a proposed FC
Individual Unit Sale or FC Unit Owner Interest Sale to a purchaser other than
the purchaser set forth in the original Section 3(a) Term Sheet. NYTC agrees to
execute and deliver to the FC Unit Owner and the proposed purchaser at the
earlier of (x) the end of said five (5) Business Day or ten (10) Business Day
period (as the case may be) and (y) the date it waives this right of first
refusal in writing, an NYTC Waiver and Estoppel Letter with the appropriate
section reference and dates, names and addresses completed as appropriate. The
failure of NYTC to execute and deliver an NYTC Waiver and Estoppel Letter shall
in no event invalidate its failure to exercise its right of first refusal under
this Section 3(a) and the consequent waiver of such right.
The restrictions on an FC Unit Owner and the rights of NYTC under
this SECTION 3(a) shall not apply (i) in the event of a FC Individual Unit Sale
or FC Unit Owner Interest Sale in foreclosure or deed in lieu of foreclosure or
any transfer of such FC Individual Unit or membership interest, partnership
interest or stock thereafter by a Registered Mortgagee or its nominee, (ii) to
any transfer of an FC Individual Unit pursuant to clause (a), (b), (c) or (d) of
SECTION 2 of this ARTICLE XX, (iii) any transfers of an FC Individual Unit or
interest in an FC Unit Owner otherwise permitted under the Recognition
Agreement, subject to the terms thereof (iv) unless NYTC occupies Units within
the Building, the Common Interest attributable to which, in the aggregate,
constitutes at least twenty percent (20%), (v) to transfers to Ground
50
Lessee from and after the termination or re-entry pursuant to Section 14.3 of
the applicable Unit Lease or transfers by Ground Lessee to other governmental
agencies, departments, bureaus or controlled entities, but shall apply to
subsequent transfers, and (vi) as to any FC Individual Unit at any time after
the applicable FC Unit Owner has conveyed such FC Individual Unit to a
Subsequent Unit Transferor, after which Section 3(b) below shall govern.
(b) NYTC'S RIGHT OF FIRST OFFER. In the event NYTC elects not to
exercise its right of first refusal to acquire an FC Individual Unit(s) or
membership interests in the FC Unit Owner pursuant to SECTION 3(a) of this
ARTICLE XX and such FC Individual Unit(s) or membership interests in the FC Unit
Owner are transferred to the prospective purchaser (such purchaser and any
subsequent purchaser of such FC Individual Unit(s) or membership interests in
the FC Unit Owner are herein collectively called, a "SUBSEQUENT FC UNIT
TRANSFEROR"), then NYTC shall have a right of first offer as to (i) the Sale of
any FC Individual Unit(s) owned by such Subsequent FC Unit Transferor to an
independent third party that is not an Affiliate of such Subsequent FC Unit
Transferor or an Affiliate of any of the members of such Subsequent FC Unit
Transferor (a "SUBSEQUENT FC INDIVIDUAL UNIT SALE") or (ii) the sale, in a
single transaction or a series of related transactions, of ninety five percent
(95%) or more of the membership interests of such Subsequent FC Unit Transferor
to an independent third party that is not an Affiliate of such Subsequent FC
Unit Transferor or an Affiliate of any of the members of such Subsequent FC Unit
Transferor (a "SUBSEQUENT FC UNIT OWNER INTEREST SALE"). If such Subsequent FC
Unit Transferor wishes to make a Subsequent FC Individual Unit Sale or a
Subsequent FC Unit Owner Interest Sale, such FC Subsequent Unit Owner shall
notify NYTC and shall deliver to NYTC a term sheet ("SECTION 3(b) TERM SHEET")
containing all of the pertinent terms of such proposed Subsequent FC Individual
Unit Sale or Subsequent FC Unit Owner Interest Sale, including without
limitation, purchase price, deposit, financing arrangements, contingencies,
conditions, closing date and any other economic and material non-economic terms
of such transaction. Except as expressly provided in the immediately preceding
sentence, the right of first offer provided in this Section 3(b) shall not apply
to a sale of any direct or indirect beneficial interest in any FC Unit Owner.
Within the thirty (30) day period after receipt of both the notice
and the Section 3(b) Term Sheet from such FC Unit Owner and delivery to NYTC of
complete copies of all leases, brokerage agreements, service and maintenance
agreements, union or employment agreements and other relevant and underlying
documentation regarding the FC Individual Unit that is being offered for Sale or
that is owned by the Subsequent FC Unit Transferor that is subject to the
proposed Subsequent FC Unit Owner Interest Sale which a purchaser will be
required to assume or to which it will be required to take subject or as to
which the Subsequent FC Unit Transferor will continue to have any obligations or
liabilities following the Subsequent FC Individual Unit Sale or Subsequent FC
Unit Owner Interest Sale, NYTC shall have the right to inspect such documents
and to conduct other due diligence review with respect to the FC Individual Unit
that is being sold or that is owned by the Subsequent FC Unit Transferor that is
subject to the Subsequent FC Unit Owner Interest Sale. NYTC or its designee
shall have the option to elect within said thirty (30) day period by written
notice to such Subsequent FC Unit Transferor, together with (a) (i) the deposit,
if any, in the amount set forth in such Section 3(b) Term Sheet, or (ii) so long
as NYTC shall have a rating of A- or better as determined by the Rating Agency,
an NYTC Purchase Guaranty, and (b) an executed counterpart of a Sale and
Purchase Agreement with such changes as are necessary to conform to the
provisions contained
51
in the Section 3(b) Term Sheet (excluding however any due diligence period
contained therein), either to purchase the leasehold or fee interest in the
Subsequent FC Individual Unit that is being offered by the Subsequent FC Unit
Transferor that is subject to the Subsequent FC Unit Owner Interest Sale for an
amount in cash equal to the consideration set forth in the Section 3(b) Term
Sheet, which, if such consideration is not all cash, shall be valued in cash
equal to the consideration set forth in the Section 3(b) Term Sheet. If, within
said thirty (30) day period, NYTC or its designee elects to purchase such
interest in the FC Individual Unit and delivers either such deposit or NYTC
Purchase Guaranty (as the case may be) together with the Sale and Purchase
Agreement to the Subsequent FC Unit Transferor, then the Subsequent FC Unit
Transferor shall promptly execute (or cause the members of the FC Unit
Transferor to execute) a counterpart of the Sale and Purchase Agreement and
deliver it to NYTC. The closing shall take place on the later to occur of (i)
the closing date set forth in the Section 3(b) Term Sheet and (ii) sixty (60)
days after NYTC elects to purchase such interest (or the first Business Day
thereafter), and time shall be of the essence as of the date which is ten (10)
Business Days after the date set forth in clause (i) or (ii) of this sentence,
as the case may be. If NYTC fails to exercise such right and deliver such
deposit or NYTC Purchase Guaranty (as the case may be), together with the Sale
and Purchase Agreement within the time and in the manner required in this
SECTION 3(b), or waives such right in writing, such FC Unit Owner shall be free
to consummate the Subsequent FC Individual Unit Sale or Subsequent FC Unit Owner
Interest Sale for the consideration and upon the other provisions set forth in
the Section 3(b) Term Sheet, provided the provisions of the Section 3(b) Term
Sheet are in accordance with and subject to the provisions of this Declaration
and By-Laws. NYTC agrees to execute and deliver to the Subsequent FC Unit
Transferor at the earlier of (x) the end of said thirty (30) day period and (y)
the date it waives this right of first refusal in writing, an NYTC Waiver and
Estoppel Letter with the appropriate section reference and dates, names and
addresses completed as appropriate. The failure of NYTC to execute and deliver
an NYTC Waiver and Estoppel Letter shall in no event invalidate its failure to
exercise its right of first offer under this Section 3(b) and the consequent
waiver of such right.
If the Subsequent FC Individual Unit Sale or Subsequent FC Unit
Owner Interest Sale pursuant to this Section 3(b) is not consummated within
twelve (12) months after the expiration of the earlier of the date NYTC fails to
exercise its right of first offer as hereinabove required and the date NYTC
waives such right in writing (the "OFFER PERIOD"), the Subsequent FC Unit
Transferor shall be required to comply again with the provisions of this Section
3(b) and re-offer the Unit in question to NYTC prior to any Subsequent FC
Individual Unit Sale or Subsequent FC Unit Owner Interest Sale, whether such
proposed Subsequent FC Individual Unit Sale or Subsequent FC Unit Owner Interest
Sale is on the same or different terms as set forth in the original notice and
Section 3(b) Term Sheet sent to NYTC, and the 30-day period for NYTC to accept
such offer hereinabove provided for shall again apply to such re-offer. In
addition, in the event the Subsequent FC Unit Transferor modifies the terms set
forth in the original Section 3(b) Term Sheet at any time (i.e., whether or not
during the 12-Month Period), the Subsequent FC Unit Transferor shall be required
to comply again with the provisions of this Section 3(b) and re-offer the Unit
or interests in question to NYTC on such modified terms prior to the Subsequent
FC Individual Unit Sale or Subsequent FC Unit Owner Interest Sale, and the
30-day period for NYTC to accept such offer hereinabove provided for shall again
apply with respect to such re-offer; provided, however, that (i) if the sole
change in terms is a reduction of the purchase price and/or other consideration
for the Subsequent FC Individual Unit Sale or
52
Subsequent FC Unit Owner Interest Sale such that the total amount of the
purchase price and other consideration is not less than 95% of the total
purchase price and other consideration contained in the original Section 3(b)
Term Sheet, and (ii) such re-offer to NYTC is made during the sixty (60) day
period following the date NYTC waives or is deemed to have waived the offer
contained in the original Section 3(b) Term Sheet pursuant to this Section 3(b),
the obligation to re-offer the Unit or interests to NYTC shall nevertheless
apply, but the time period for NYTC to accept such re-offer of the Unit or
interests shall be limited to ten (10) Business Days following receipt of the
revised Section 3(b) Term Sheet. NYTC agrees to execute and deliver to the
Subsequent FC Unit Transferor at the earlier of (x) the end of said ten (10)
Business Day period and (y) the date it waives this right of first refusal in
writing, an NYTC Waiver and Estoppel Letter with the appropriate section
reference and dates, names and addresses completed as appropriate. The failure
of NYTC to execute and deliver an NYTC Waiver and Estoppel Letter shall in no
event invalidate its failure to exercise its right of first offer under this
Section 3(b) and the consequent waiver of such right.
The restrictions on a Subsequent FC Unit Transferor and the rights
of NYTC under this SECTION 3(b) shall not apply (i) in the event of a transfer
of a Subsequent FC Individual Unit Sale or Subsequent FC Unit Owner Interest
Sale in foreclosure or deed in lieu of foreclosure or any transfer of such FC
Individual Unit or membership interest, partnership interest or stock thereafter
by a Registered Mortgagee or its nominee, (ii) to any transfer of an FC
Individual Unit pursuant to clause (a), (b), (c) or (d) of SECTION 2 of this
ARTICLE XX, (iii) any transfers of an FC Individual Unit or interest in an FC
Unit Owner otherwise permitted under the Recognition Agreement, subject to the
terms thereof, (iv) unless NYTC occupies Units within the Building, the Common
Interest attributable to which, in the aggregate, constitutes at least twenty
percent (20%) and (v) to transfers to Ground Lessee from and after the
termination or re-entry pursuant to Section 14.3 of the applicable Unit Lease or
to transfers by Ground Lessee to other governmental agencies, departments,
bureaus or controlled entities, but shall apply to subsequent transfers.
(c) Nothing contained in this SECTION 3 shall be deemed to give any
FC Unit Owner the right to Sell any Unit during the Lockout Period, except as
expressly set forth herein.
Section 4. NYTC'S PURCHASE OPTIONS. So long as NYTC occupies Units
within the Building, the Common Interest attributable to which, in the
aggregate, constitutes at least twenty percent (20%), NYTC shall have the
following purchase options:
(a) Subject to SECTION 6 of this ARTICLE XX, and in lieu of the
option described in SUBSECTION 5(a) of this ARTICLE XX, on the tenth (10th)
anniversary of the commencement date of the term of the first sublease for space
located within the FC Collective Unit (the "FIRST SUBLEASE COMMENCEMENT DATE"),
but in no event earlier than the twelfth (12th) anniversary of the date on which
a temporary certificate of occupancy is first issued for the core and shell of
the NYTC Collective Unit (such date being hereinafter referred to as the
"TRIGGER DATE"), NYTC shall have the option (at NYTC's election) to purchase the
applicable FC Unit Owner's leasehold interest in one or both of the FC
Individual Units designated as ______ and _______ on the Plans [UNITS TO BE
FILLED IN PRIOR TO EXECUTION TO BE THE 2 FLOORS IMMEDIATELY ABOVE ORIGINAL NYTC
COLLECTIVE UNIT] for a purchase price equal to Fair Market Value determined in
accordance with SECTION 8 of this ARTICLE XX. Such option shall be
53
exercisable by NYTC no later than the date (herein called the "FIRST OPTION
DEADLINE DATE") occurring one hundred twenty (120) days prior to the Trigger
Date by written notice on or before the First Option Deadline Date to the
applicable FC Unit Owner(s) together with an executed counterpart of a Sale and
Purchase Agreement and either (A) an xxxxxxx money deposit in an amount equal to
One Million Dollars ($1,000,000.00) per Unit to be acquired, a "Deposit") or (B)
so long as NYTC shall have a rating of A- or better as determined by the Rating
Agency, an NYTC Purchase Guaranty in lieu of the Deposit. If such option is
exercised by NYTC in accordance with this Section 4(a), then the FC Unit Owner
shall promptly execute a counterpart of the Sale and Purchase Agreement and
deliver it to NYTC, provided however, that the failure of such FC Unit Owner to
execute and/or deliver the Sale and Purchase Agreement shall not in any way
affect the exercise of this option by NYTC. In no event shall NYTC be obligated
to assume or take subject to any Service Contract or other agreements with
respect to any FC Individual Unit.
(b) Subject to SECTION 6 of this ARTICLE XX, and in lieu of the
option described in subsection 5(b) of this ARTICLE XX, on the tenth (10th)
anniversary of the Trigger Date (the "SECTION 4(b) 10TH ANNIVERSARY DATE"), NYTC
shall have the option (at NYTC's election) to purchase the applicable FC Unit
Owner's leasehold interest in one or both of the FC Individual Units designated
as _____ and______ [UNITS TO BE FILLED IN PRIOR TO EXECUTION TO BE THE 2 FLOORS
IMMEDIATELY ABOVE THE ORIGINAL COLLECT WE UNIT] on the Plans (or, if NYTC has
exercised its option pursuant to subsection 4(a) above, then the FC Individual
Units designated as ______ and _______ on the Plans) [UNITS TO BE FILLED IN
PRIOR TO EXECUTION TO BE THE 2 FLOORS IMMEDIATELY ABOVE UPPERMOST FLOOR OF THE
NYTC COLLECTIVE UNIT] for a purchase price equal to Fair Market Value as of the
date the option is exercised determined in accordance with SECTION 8 of this
ARTICLE XX. Such option shall be exercisable by NYTC no later than the date
occurring one hundred twenty (120) days prior to the Section 4(b) 10th
Anniversary Date (the "SECOND OPTION DEADLINE DATE") by delivering written
notice to the applicable FC Unit Owner(s) together with an executed counterpart
of a Sale and Purchase Agreement and either (A) a Deposit or (B) so long as NYTC
shall have a rating of A- or better as determined by the Rating Agency, an NYTC
Purchase Guaranty in lieu of the Deposit. If such option is exercised by NYTC in
accordance with this Section 4(b), then the FC Unit Owner shall promptly execute
a counterpart of the Sale and Purchase Agreement and deliver it to NYTC,
provided however, that the failure of such FC Unit Owner to execute and/or
deliver the Sale and Purchase Agreement shall not in any way affect the exercise
of this option by NYTC. In no event shall NYTC be obligated to assume or take
subject to any Service Contract with respect to any FC Individual Unit.
(c) Subject to SECTION 6 of this ARTICLE XX, and in lieu of the
option described in subsection 5(b) of this ARTICLE XX, on the twentieth (20th)
anniversary of the Trigger Date (the "SECTION 4(c) 20th ANNIVERSARY DATE"), NYTC
shall have the option (at NYTC's election) to purchase the applicable FC Unit
Owner's leasehold interest in one or both of the FC Individual Units designated
as _____ and ___________ [UNITS TO BE FILLED IN PRIOR TO EXECUTION TO BE THE 2
FLOORS IMMEDIATELY ABOVE THE UPPERMOST FLOOR OF THE NYTC COLLECTIVE UNIT] on the
Plans (or, if NYTC has exercised its option pursuant to subsection 4(b) above,
then the FC Individual Units designated as ______ and ____ on the Plans) [UNITS
TO BE FILLED IN PRIOR TO EXECUTION TO BE THE 2
54
FLOORS IMMEDIATELY ABOVE UPPERMOST FLOOR OF THE NYTC COLLECTIVE UNIT] for a
purchase price equal to Fair Market Value of the Unit(s) being purchased as of
the date the option is exercised determined in accordance with SECTION 8 of this
ARTICLE XX. Such option shall be exercisable by NYTC no later than the date
occurring one hundred twenty (120) days prior to the Section 4(c) 20th
Anniversary Date (the "THIRD OPTION DEADLINE DATE") by delivering written notice
together with an executed counterpart of a Sale and Purchase Agreement and
either (A) a Deposit or (B) so long as NYTC shall have a rating of A- or better
as determined by the Rating Agency, an NYTC Purchase Guaranty in lieu of the
Deposit. If such option is exercised by NYTC in accordance with this Section
4(c), then the FC Unit Owner shall promptly execute a counterpart of the Sale
and Purchase Agreement and deliver it to NYTC, provided however, that the
failure of such FC Unit Owner to execute and/or deliver the Sale and Purchase
Agreement shall not in any way affect the exercise of this option by NYTC. In no
event shall NYTC be obligated to assume or take subject to any Service Contract
or other agreements with respect to any FC Individual Unit.
(d) At any time during the term of this Declaration that NYTC (x)
shall have acquired a leasehold interest in or sublease from an FC Unit Owner,
or both, and/or (y) shall have exercised options to purchase a leasehold
interest in or sublease from any FC Unit Owner, or both, Units within the FC
Collective Unit (as the same is constituted on the date hereof) the Common
Interest in which, in the aggregate, constitutes eighty percent (80%) or more of
the Common Interest attributable to the FC Collective Unit (as the same is
constituted on the date hereof, not including the Retail Unit) (the "QUALIFIED
PERCENTAGE OCCUPANCY PERIOD"), then NYTC shall have the option (the "SECTION
4(d) OPTION") to purchase the leasehold interests in the remaining FC Individual
Units (excluding the Retail Unit and any FC Individual Unit for which NYTC
previously had an option to cause the Sale to NYTC pursuant to Sections 4(a),
(b) or (c) of this ARTICLE XIX or a right of first refusal or right of first
offer to acquire any FC Individual Unit pursuant to Section 3(a) or (b) of this
ARTICLE XX, but which right NYTC did not exercise, and which FC Individual
Unit(s) was then sold to the prospective purchaser with respect to which NYTC
had such right of first refusal or right of first offer, such FC Individual Unit
being hereinafter referred to as an "EXCLUDED UNIT"). Such Section 4(d) Option
shall be exercisable by NYTC by written notice to all applicable FC Unit Owners
at any time during the Qualified Percentage Occupancy Period together with a
Sale and Purchase Agreement for each Unit and either (A) a Deposit or (B) so
long as NYTC shall have a rating of A- or better as determined by the Rating
Agency, an NYTC Purchase Guaranty in lieu of the Deposit. The purchase price
shall be the Fair Market Value (determined as provided in SECTION 8 of this
ARTICLE XX) for such FC Individual Units as of the date NYTC exercises the
Section 4(d) Option. If the Section 4(d) Option is exercised by NYTC in
accordance with this Section 4(d), then the FC Unit Owner shall promptly execute
a counterpart of each Sale and Purchase Agreement and deliver them to NYTC,
provided however, that the failure of such FC Unit Owner to execute and/or
deliver any such Sale and Purchase Agreement shall not in any way affect the
exercise of this option by NYTC. Each Sale and Purchase Agreement shall provide
that the Sale to NYTC of any such FC Individual Unit shall be subject to
existing tenancies. The applicable FC Unit Owner(s) will assign all subleases
for all or a portion of such FC Individual Unit(s) to NYTC and shall use
reasonable efforts to obtain estoppel certificates from such subtenants in the
form requested by NYTC. In no event shall NYTC be obligated to assume or take
subject to any Service Contract or other agreements with respect to any FC
Individual Unit.
55
(e) The transfers pursuant to this SECTION 4 shall be effectuated as
provided in the Sale and Purchase Agreement, including by amending the Unit
Leases as provided in SECTION 9 of ARTICLE IV hereof.
(f) Notwithstanding anything to the contrary contained in this
SECTION 4 or in SECTION 5 of this ARTICLE XX, in the event of a termination or
re-entry pursuant to Section 14.3 (by reason of a default of the FC Unit Owner
thereunder) of the FC Unit Lease which demises the space in the FC Collective
Unit which is the subject of an option pursuant to subparagraphs (a), (b) or (c)
of this SECTION 4 or Section 5(a), (b) or (c) of this ARTICLE XX prior to the
last day on which such option may be exercised, and if, as of the Public Party
Possession Date following such termination, there are less than five (5) years
remaining prior to the last date on which such option may be exercised and the
space which is the subject of such option is not then subleased by the FC Unit
Owner to a third party, then the Trigger Date, Section 4(b) Anniversary Date, or
Section 4(c) Anniversary Date (each, an "ANNIVERSARY DATE") associated with such
option shall be adjusted to be, at NYTC's election, either (x) the date which is
120 days after such Public Party Possession Date, in which case the First Option
Deadline, Second Option Deadline or Third Option Deadline (each, an "OPTION
DEADLINE"), as applicable, associated with such option shall be the date which
is 45 days after such Public Party Possession Date, or (y) the date which is 5
years after the Public Party Possession Date, in which case the applicable
Option Deadline shall be 120 days prior to the Trigger Date or applicable
Anniversary Date. For purposes of the preceding sentence, if NYTC fails to
exercise such option on or before the date which is 45 days after the Public
Party Possession Date, it shall be deemed to have deferred the Trigger Date,
Section 4(b) Anniversary Date, or Section 4(c) Anniversary Date, as the case may
be, to the date which is 5 years after such Public Party Possession Date. In the
event the Trigger Date, is adjusted pursuant to this paragraph (f), then the
Section 4(b) Anniversary Date and Section 4(c) Anniversary Date shall each be
adjusted to be, respectively, the tenth (10th) and twentieth (20th)
anniversaries of the Trigger Date as so adjusted. In the event the Section 4(b)
Anniversary Date is adjusted pursuant to this paragraph (f), then the Section
4(c) Anniversary Date shall be adjusted to be the tenth (10th) anniversary of
the Section 4(b) Anniversary Date as so adjusted. The applicable Option Deadline
for any Anniversary Date adjusted pursuant to the preceding two sentences shall
likewise be adjusted to be 120 days prior to such Anniversary Date.
(g) In the event that any Public Party (a "PUBLIC PARTY SELLER") is
then the Unit Owner of a Unit which is the subject of a sale to NYTC pursuant to
the exercise of a right of first refusal, right of first offer or option to
purchase pursuant to Section 3 or 6 or this SECTION 4 of this ARTICLE XX, the
Sale and Purchase Agreement shall be modified prior to its execution (or if the
Public Party becomes the Unit Owner following the execution of such Sale and
Purchase Agreement and prior to the closing thereunder, the Sale and Purchase
Agreement shall be deemed automatically amended) as follows: (i) all
representations and warranties made pursuant to Section 3.1 of the Sale and
Purchase Agreement shall be limited to the actual knowledge of the Public Party
Seller, provided however that it shall be a condition of NYTC's obligation to
close under the Sale and Purchase Agreement that all such representations and
warranties shall be true as of the Closing Date thereunder without reference to
the Public Party Seller's knowledge (except with respect to Section 3.1.10
thereof as to which it shall be a condition of NYTC's obligation to close that
such representation and warranty shall be true as of the Closing Date thereunder
to the Public Party Seller's actual knowledge), and (ii) the Public Party Seller
56
shall have no liability to NYTC for a default in any covenant of the seller
under the Sale and Purchase Agreement which was caused by a prior (i.e., a
non-Public Party Seller) Unit Owner of such Unit or which is not capable of
being performed in a commercially reasonable manner by reason of the acts or
omissions of prior Unit Owners, but in the event of any such default prior to
the closing under the Sale and Purchase Agreement, NYTC shall have the right to
terminate the Sale and Purchase Agreement and receive a refund of its deposit
(if any) thereunder.
Section 5. NYTC'S SUBLEASING OPTIONS. So long as NYTC occupies Units
within the Building, the Common Interest attributable to which, in the
aggregate, constitutes at least twenty percent (20%), NYTC shall have the
following subleasing options:
(a) In lieu of the option described in SUBSECTION 4(a) of this
ARTICLE XX, NYTC shall have the option to sublease from the applicable FC Unit
Owner (at NYTC's election) one or both of the FC Individual Units designated as
______ and _______ [UNITS TO BE FILLED IN PRIOR TO EXECUTION TO BE THE 2 FLOORS
IMMEDIATELY ABOVE ORIGINAL NYTC COLLECTIVE UNIT] on the Plans, which FC
Individual Units shall be vacant and free from all claims of possession from any
Person as of the Trigger Date. Such option shall be exercisable by NYTC not
later than the First Option Deadline Date by written notice delivered on or
before the First Option Deadline Date to such FC Unit Owner(s) together with an
executed sublease (in substantially the form attached hereto as EXHIBIT L, a
"NYTC SUBLEASE") for such FC Individual Unit(s) and either (A) a security
deposit (which at NYTC's option may be in the form of cash or letter of credit
drawn by a bank reasonably acceptable to the applicable FC Unit Owner and in
form reasonably acceptable to the applicable FC Unit Owner) in an amount equal
to one year's rent for each such Unit to be leased, the "SECURITY") or (B) so
long as NYTC shall have a rating of A- or better as determined by the Rating
Agency, a guaranty of the obligations of NYTC under the NYTC Sublease by NYTC in
substantially the form attached hereto as EXHIBIT M (an "NYTC LEASE GUARANTY")
in lieu of the Security. The NYTC Sublease shall provide for (x) a term of ten
(10) years, with three (3) options to extend the term of the NYTC Sublease of
ten (10) years each for a total term (as extended) of not more than forty (40)
years, commencing on the Trigger Date, (y) an annual rental equal to Fair Market
Rent determined in accordance with SECTION 8 of this ARTICLE XX, and (z)
adjustments in the annual rental on each of the tenth (10th), twentieth (20th)
and thirtieth (30th) anniversaries of the commencement date (as applicable) to
reflect the then Fair Market Rent determined in accordance with SECTION 8 of
this ARTICLE XX. If such option is exercised by NYTC in accordance with this
Section 5(a), then the FC Unit Owner shall promptly execute a counterpart of the
NYTC Sublease and deliver it to NYTC, provided however, that the failure of such
FC Unit Owner to execute and/or deliver the NYTC Sublease shall not in any way
affect the exercise of this option by NYTC.
(b) In lieu of the option described in SUBSECTION 4(b) of this
ARTICLE XX, NYTC shall have the option to sublease from the applicable FC Unit
Owner either (at NYTC's election) one or both of the FC Individual Units
designated as ______ and _______ on the Plans [UNITS TO BE FILLED IN PRIOR TO
EXECUTION TO BE THE 2 FLOORS IMMEDIATELY ABOVE THE ORIGINAL COLLECTIVE UNIT] on
the Plans (or, if NYTC has exercised its option pursuant to subsection 5(a)
above, then the FC Individual Units designated as ______ and ______ on the
Plans) [UNITS TO BE FILLED IN PRIOR TO EXECUTION TO BE THE 2 FLOORS IMMEDIATELY
ABOVE UPPERMOST FLOOR OF THE NYTC COLLECTIVE UNIT] on the Plans which FC
Individual Units shall be vacant and free from all claims of
57
possession from any Person as of the Section 4(b) 10th Anniversary Date. Such
option shall be exercisable by NYTC no later than the Second Option Deadline
Date by delivering written notice together with an NYTC Sublease for such FC
Individual Unit, and either (A) the Security or (B) so long as NYTC shall have a
rating of A- or better as determined by the Rating Agency, an NYTC Lease
Guaranty in lieu of the Security. The NYTC Sublease shall provide for (x) a term
of ten (10) years, with three (3) options to extend the term of the NYTC
Sublease of ten (10) years each for a total term (as extended) of not more than
forty (40) years, commencing on the Section 4(b) 10th Anniversary Date, (y) an
annual rental equal to ninety-five percent (95%) of Fair Market Rent determined
in accordance with SECTION 8 of this ARTICLE XX, and (z) adjustments in the
annual rental on each of the tenth (10th), twentieth (20th) and thirtieth (30th)
anniversaries of the commencement date (as applicable) to reflect the then Fair
Market Rent determined in accordance with SECTION 8 of this ARTICLE XX. If such
option is exercised by NYTC in accordance with this Section 5(b), then the FC
Unit Owner shall promptly execute a counterpart of the NYTC Sublease and deliver
it to NYTC, provided however, that the failure of such FC Unit Owner to execute
and/or deliver the NYTC Sublease shall not in any way affect the exercise of
this option by NYTC.
(c) In lieu of the option described in SUBSECTION 4(c) of this
ARTICLE XIX, NYTC shall have the option to sublease from the applicable FC Unit
Owner either (at NYTC's election) one or both of the FC Individual Units
designated as ______ and _______ on the Plans [UNITS TO BE FILLED IN PRIOR TO
EXECUTION TO BE THE 2 FLOORS IMMEDIATELY ABOVE THE UPPERMOST FLOOR OF THE NYTC
COLLECTIVE UNIT] on the Plans (or, if NYTC has exercised its option pursuant to
subsection 5(b) above, then the FC Individual Units designated as _____ and
______ on the Plans) [UNITS TO BE FILLED IN PRIOR TO EXECUTION TO BE THE 2
FLOORS IMMEDIATELY ABOVE UPPERMOST FLOOR OF THE NYTC COLLECTIVE UNIT] on the
Plans which FC Individual Units shall be vacant and free from all claims of
possession from any Person as of as of the Section 4(c) 20th Anniversary Date.
Such option shall be exercisable by NYTC no later than the Third Option Deadline
Date by delivering written notice together with an NYTC Sublease for such FC
Individual Unit, and either (A) the Security or (B) so long as NYTC shall have a
rating of A- or better as determined by the Rating Agency, an NYTC Lease
Guaranty in lieu of the Security. The NYTC Sublease shall provide for (x) a term
of ten (10) years, with three (3) options to extend the term of the NYTC
Sublease of ten (10) years each for a total term (as extended) of not more than
forty (40) years, commencing on the Section 4(c) 20th Anniversary Date, (y) an
annual rental equal to ninety-five percent (95%) of Fair Market Rent determined
in accordance with SECTION 8 of this ARTICLE XX, and (z) adjustments in the
annual rental on each of the tenth (10th), twentieth (20th) and thirtieth (30th)
anniversaries of the commencement date (as applicable) to reflect the then Fair
Market Rent determined in accordance with SECTION 8 of this ARTICLE XX. If such
option is exercised by NYTC in accordance with this Section 5(c), then the FC
Unit Owner shall promptly execute a counterpart of the NYTC Sublease and deliver
it to NYTC, provided however, that the failure of such FC Unit Owner to execute
and/or deliver the NYTC Sublease shall not in any way affect the exercise of
this option by NYTC.
(d) In addition to and not in lieu of the other rights and options
of NYTC contained in Sections 3 and 4 and this Section 5 of this Article XX, if
at any time during the term of this Declaration, all or any portion of any FC
Individual Unit (except space within the Retail Unit and space within any
Excluded Unit) (a "FIRST OFFER SPACE") shall become available for
58
subleasing, then prior to subleasing such First Offer Space to any third party,
the applicable FC Unit Owner shall offer to lease such First Offer Space to
NYTC. Such offer shall be made in writing (a "FIRST OFFER NOTICE") given to NYTC
(x) in the case of First Offer Space comprised of one full floor of space or
more, not less than eighteen (18) and not more than twenty-four (24) months
prior to the date the FC Unit Owner reasonably expects such First Offer Space to
be available for subleasing, (y) in the case of First Offer Space comprised of
less than a full floor of space, not less than twelve (12) and not more than
fifteen (15) months prior to the date the FC Unit Owner reasonably expects such
First Offer Space to be available for subleasing, or (z) in the event the First
Offer Space becomes available for subleasing other than by reason of the
expiration of the term of the prior occupant's lease (e.g., by reason of a lease
default, voluntary surrender or an offer by the existing subtenant pursuant to a
right of recapture or similar right in its lease), promptly after the applicable
FC Unit Owner becomes aware that such First Offer Space may become available for
subleasing. Such First Offer Notice shall set forth the First Offer Space and
the date (the "AVAILABILITY DATE") on which the same is expected to be available
for possession by NYTC. NYTC shall have the option to sublease from the
applicable FC Unit Owner(s) such First Offer Space for a term to commence on the
latest of (i) the Availability Date, (ii) the date occurring sixty (60) days
from the receipt of the First Offer Notice, and (iii) ten (10) days after the
date vacant possession of such First Offer Space is delivered to NYTC, such
option to be exercised by written notice (the "ACCEPTANCE NOTICE") to the FC
Unit Owner(s) given within thirty (30) days (for up to one floor) or sixty (60)
days (for more than one floor) after its receipt of a First Offer Notice,
together with an NYTC Sublease and either (A) the Security or (B) so long as
NYTC shall have a rating of A- or better as determined by the Rating Agency, an
NYTC Lease Guaranty in lieu of the Security. The NYTC Sublease shall provide for
a rental equal to ninety-five percent (95%) of the Fair Market Rent for such
First Offer Space determined in accordance with SECTION 8 of this ARTICLE XX and
a term of ten (10) years, with three (3) options to extend the term of the NYTC
Sublease of ten (10) years each for a total term (as extended) of not more than
forty (40) years, and shall provide further that the rental shall be adjusted on
each of the tenth (10th), twentieth (20th) and thirtieth (30th) anniversaries of
the commencement date (as applicable) to reflect the then Fair Market Rent
determined in accordance with SECTION 8 of this ARTICLE XX. If such option is
exercised by NYTC in accordance with this Section 5(d), then the FC Unit Owner
shall promptly execute a counterpart of the NYTC Sublease and deliver it to
NYTC, provided however, that the failure of such FC Unit Owner to execute and/or
deliver the NYTC Sublease shall not in any way affect the exercise of this
option by NYTC. The option described in this subsection 5(d) shall not apply to
the initial subletting by an FC Unit Owner of any space within an Excluded Unit,
but shall apply at anytime after the initial subletting of such First Offer
Space.
The option set forth in this subsection 5(d) (i.e., the right of
first offer) shall be superior to all expansion, extension and renewal rights
granted to any subtenants or occupants of the FC Collective Unit, provided
however, that such right of first offer shall be subject and subordinate to any
option to extend the sublease term contained (i) in subleases executed by the
initial occupancy tenant (an "INITIAL OCCUPANCY TENANT") of the First Offer
Space in question (provided such option is contained in the original sublease
with such Initial Occupancy Tenant, as distinguished from an amendment or
modification of such sublease), or (ii) in subleases executed by "Major Tenants"
(as such term is hereinafter defined). As used herein, the term "Major Tenant"
shall mean an occupancy subtenant who is not an Initial Occupancy Tenant and
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who subleases at least two (2) floors in the FC Collective Unit (excluding space
within the Retail Unit) for an initial term of not less than ten (10) years.
Section 6. NYTC'S OPTION TO SUBLEASE V. PURCHASE. Notwithstanding
anything to the contrary contained in SECTIONS 4 AND 5 of this ARTICLE XIX,
if(a) NYTC desires to exercise any of its purchase options under SECTION 4, and
(b) (i) such Sale to NYTC of any FC Individual Unit would result in such FC Unit
Owner incurring any prepayment penalties, breakage costs or other similar fees
(collectively, "BREAKAGE COSTS") under any financing of such FC Individual Unit
(other than immaterial penalties, costs or fees), or (ii) the date upon which
the closing on the Sale of such Unit would occur falls within a lock-out period
under such financing, then the applicable FC Unit Owner(s) must notify NYTC of
such fact (the "SECTION 6 NOTICE") within fifteen (15) days after NYTC gives
notice under SECTION 4 of this Article XX. NYTC shall have fifteen (15) days
from the delivery of the Section 6 Notice to withdraw its notice under SECTION 4
of this Article XX to exercise such option. If NYTC does not withdraw its notice
under SECTION 4 of this Article XX to exercise such option, then, NYTC shall not
be permitted to exercise such purchase option, but may instead exercise its
corresponding sublease option under SECTION 5 of this ARTICLE XX by delivering
within fifteen (15) days thereafter to the applicable FC Unit Owner(s) an NYTC
Sublease for the applicable FC Individual Unit(s) together with either (A) the
Security or (B) so long as NYTC shall have a rating of A- or better as
determined by the Rating Agency, an NYTC Lease Guaranty in lieu of the Security.
The annual rental under such NYTC Sublease shall be equal to ten percent (10%)
of what would have been the purchase price for such FC Individual Unit(s) had
NYTC been permitted to exercise its purchase option under SECTION 4 of this
Article XX. Promptly upon receipt of such NYTC Sublease together with the
Security or NYTC Lease Guaranty, as applicable, such FC Unit Owner shall execute
a counterpart of such NYTC Sublease and deliver it to NYTC, provided however,
that the failure of such FC Unit Owner to execute and/or deliver the NYTC
Sublease shall not in any way affect the exercise of this option by NYTC. If the
terms of any such financing permit such prepayment only upon the payment of
Breakage Costs, then NYTC may nonetheless exercise its purchase option,
provided, however, that (x) if such exercise is within the first ten (10) years
after such financing, NYTC shall pay all such Breakage Costs and (y) if such
exercise is after the tenth (10th) year of such financing, the applicable FC
Unit Owner shall pay all such Breakage Costs. In no event may the terms of any
financing of any FC Individual Unit provide for a lock-out period beyond ten
(10) years from the date of such financing, and, in no event shall the
applicable FC Unit Owner, after receipt of a Section 6 Notice, enter into any
financing encumbering the applicable FC Individual Unit which precludes the
transfer of such FC Individual Unit. Upon request by NYTC from time to time, the
applicable FC Unit Owner shall provide to NYTC information regarding the terms
of any lock-out periods under any such financing.
Any Section 6 Notice given by an FC Unit Owner shall set forth the
first date (the "LOCKOUT EXPIRATION DATE") on which, pursuant to the terms of
the FC Unit Owner's mortgage then encumbering the Unit in question, such FC Unit
Owner is permitted to obtain a release of such mortgage from such Unit without
the payment of Breakage Costs, which date shall in no event be longer than ten
(10) years following the date such mortgage was first granted with respect to
such Unit. In the event NYTC exercises its option under this Section 6 to
sublease such Unit following the giving of such Section 6 Notice (the "INTERIM
SUBLEASE OPTION" the NYTC Sublease executed with respect to such Unit following
the exercise of such Interim
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Sublease Option being hereinafter called the "INTERIM NYTC SUBLEASE"), (i) there
shall be a determination of the purchase price (the "SECTION 6 PURCHASE PRICE")
which would have been payable had NYTC been permitted to exercise the option in
question in order to establish the annual rental payable under the NYTC Sublease
for such Unit in accordance with this Section 6 (i.e., 10% of such Section 6
Purchase Price), and such determination shall be made immediately following the
exercise by NYTC of the Interim Sublease Option in the same manner as would have
applied hereunder if NYTC had been permitted to exercise such option, and (ii)
the term of such NYTC Sublease shall commence on the date which would have been
established as the closing date for the purchase of such Unit in the event NYTC
had been permitted to exercise the option in question for such Unit and shall
end on the Lockout Expiration Date. On the Lockout Expiration Date, FC Unit
Owner shall sell to NYTC and NYTC shall purchase from FC Unit Owner the Unit
covered by such Interim NYTC Sublease on all of the terms and conditions which
would have applied in the event NYTC had been initially permitted to exercise
the option for such Unit (including that such Unit shall be conveyed free and
clear of the lien of any FC Unit Owner financing), and the purchase price for
such Unit shall be the Section 6 Purchase Price.
If the applicable FC Unit Owner shall fail to comply with its
obligations under this Section 6, (i) to limit lock-out periods under any
financing covering a Unit to be purchased by NYTC or its designee to ten (10)
years or less, or (ii) to pay any Breakage Costs which such FC Unit Owner is
obligated to pay under this Section 6 with respect to any Unit, or (iii) to
execute and deliver to NYTC an Interim NYTC Sublease, or (iv) to convey the Unit
covered by an Interim NYTC Sublease on the Lockout Expiration Date free and
clear of the lien of any FC Unit Owner financing, then, without limiting NYTC's
rights and remedies on account of such failure, NYTC shall have the right, at
NYTC's option, from and after the occurrence of such failure and for so long as
such failure shall continue ("DEFAULT PERIOD"), to occupy such Unit under all of
the terms and conditions of the NYTC Sublease, except that NYTC shall be
obligated to pay only the amounts payable under Article 3 of such NYTC Sublease
with respect to Default Period (i.e., payments on account of Real Estate Taxes
and Operating Expenses) and NYTC shall not be obligated to pay any other amounts
which would otherwise have been payable under the NYTC Sublease with respect to
the Default Period."
Section 7. AGREEMENT TO EXECUTE SUPPLEMENTAL AGREEMENT. Within ten
(10) business days after request by any Unit Owner that is made following the
earlier to occur of (a) the delivery to the subtenant under the first sublease
to be executed for any portion of the FC Collective Unit of possession of its
premises, and (b) the date on which a temporary certificate of occupancy is
first issued for the core and shell of the NYTC Collective Unit, the Unit Owners
shall execute and deliver a supplemental agreement in form for recording setting
forth (a) the First Sublease Commencement Date, the Trigger Date and the
respective tenth (10th) and twentieth (20th) anniversaries of the Trigger Date,
and (b) the last dates by which each of the respective options set forth in
Sections 4(a), 4(b), 4(c), 5(a), 5(b) and 5(c) of this Article XX may be
exercised, but the failure to execute such supplemental agreement shall not
affect the rights and obligations of the parties pursuant to this Article XX.
Section 8. FAIR MARKET VALUE; FAIR MARKET RENT.
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(a) At any time that the "Fair Market Value" of any Unit is to be
determined pursuant to this Article XX, the parties seeking such determination
shall, for a period of twenty (20) days, meet and attempt in good faith to agree
on the Fair Market Value. If the parties do not reach agreement upon Fair Market
Value within said twenty (20) days, then Fair Market Value shall be determined
by arbitration using three (3) arbitrators, each of whom is a disinterested
party and a member of the American Institute of Real Estate Appraisers (or any
successor thereto) and has at least fifteen (15) years of experience with and is
actively engaged in the valuation of high-rise premium first-class office
buildings in the County, City and State of New York. In such instance, any party
may serve a written notice on the others stating that an arbitration should be
conducted pursuant to this Section 8(a) and stating that each party is obligated
to name an arbitrator within fifteen (15) days after the giving of such notice.
Within fifteen (15) days after such notice is given, (i) the NYTC Unit Owner
shall nominate and appoint one (1) arbitrator, and (ii) the owner(s) of the
subject FC Individual Unit(s) (collectively, the "SUBJECT UNIT OWNER(S)") shall
nominate and appoint (jointly, if there is more than one (1) such party
constituting the Subject Unit Owner(s)) one (1) arbitrator. If one party shall
fail to name its arbitrator within the foregoing fifteen (15) day period and
such failure continues for an additional period of three (3) business days after
notice from the party which has named its arbitrator, then such party which has
named its arbitrator shall be permitted to name the second arbitrator and shall
do so within a further period of seven (7) days following expiration of the
three (3) business days period. The two (2) arbitrators shall, within ten (10)
days after the appointment of the second arbitrator, and before exchanging views
as to the question at issue, appoint in writing a third arbitrator (the "THIRD
VALUATION ARBITRATOR") and give written notice of such appointment to the NYTC
Unit Owner and the Subject Unit Owner(s). In the event the arbitrators shall
fail to appoint or agree upon a Third Valuation Arbitrator within said ten (10)
day period, then the Third Valuation Arbitrator shall be selected by the
parties, if they so agree upon such Third Valuation Arbitrator within a further
period of five (5) business days. If the Third Valuation Arbitrator shall not be
appointed or agreed upon within the time herein provided, then either party may
apply to the American Arbitration Association for the appointment of such Third
Valuation Arbitrator. The arbitrators shall be sworn faithfully and fairly to
determine the question at issue. The question to be determined by the
arbitrators shall be: "What is the Fair Market Value of the Unit(s) in question
as of [the date of exercise of the applicable option or right to purchase said
Unit(s)] taking into account the form of Sale and Purchase Agreement, if
applicable (including without limitation Section 11.1.14 thereof)?" The
arbitrators shall afford to the parties the right to submit evidence, with the
privilege of cross-examination on the question at issue. Such hearings shall be
concluded as expeditiously as practicable and in any event within thirty (30)
days following the appointment of the Third Valuation Arbitrator. All three (3)
arbitrators shall submit their determinations of Fair Market Value
simultaneously in the presence of the parties on a "sealed bid" basis within
fifteen (15) days after conclusion of such hearings. If the two (2) arbitrators
initially appointed by the parties shall have rendered different determinations
of Fair Market Value, then (i) the determination of the one of such two (2)
arbitrators which is closest to the determination of the Third Valuation
Arbitrator shall be deemed to be the Fair Market Value of the subject Unit(s),
and (ii) if the determination of the Third Valuation Arbitrator is exactly the
average of the other two (2) determinations, then the determination of the Third
Valuation Arbitrator shall be deemed the Fair Market Value of the subject
Unit(s). The determination of Fair Market Value in accordance with this Section
8(a) shall be binding upon the parties. Each party shall pay the fees and
expenses of
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the arbitrator appointed by it and the fees and expenses of the Third Valuation
Arbitrator shall be divided equally between them. In the event any arbitrator
appointed as aforesaid shall thereafter die or become unable or unwilling to
act, such arbitrator's successor shall be appointed in the same manner provided
in this Section 8(a) for the appointment of the arbitrator so dying or becoming
unable or unwilling to act.
(b) At any time that the "Fair Market Rent" of any Unit is to be
determined pursuant to this Article XX, the parties seeking such determination
shall, for a period of twenty (20) days, meet and attempt in good faith to agree
on the Fair Market Rent. If the parties do not reach agreement upon Fair Market
Rent within said twenty (20) days, then Fair Market Rent shall be determined by
arbitration using three (3) arbitrators each of whom is a disinterested party
and a licensed real estate broker in New York State and has at least fifteen
(15) years of experience with and is actively engaged in the leasing of office
space in high-rise premium first-class office buildings in the County, City and
State of New York. In such instance, any party may serve a written notice on the
others stating that an arbitration should be conducted pursuant to this Section
8(b) and stating that each party is obligated to name an arbitrator within
fifteen (15) days after the giving of such notice. Within fifteen (15) days
after such notice is given, (i) the NYTC Unit Owner shall nominate and appoint
one (1) arbitrator, and (ii) the Subject Unit Owner(s) shall nominate and
appoint (jointly, if there is more than one (1) party constituting the Subject
Unit Owner(s)) one (1) arbitrator. If one party shall fail to name its
arbitrator within the foregoing fifteen (15) day period and such failure
continues for an additional period of three (3) business days after notice from
the party which has named its arbitrator, then such party which has named its
arbitrator shall be permitted to name the second arbitrator and shall do so
within a further period of seven (7) days following expiration of the three (3)
business days period. The two (2) arbitrators shall, within ten (10) days after
the appointment of the second arbitrator, and before exchanging views as to the
question at issue, appoint in writing a third arbitrator (the "THIRD RENTAL
ARBITRATOR") and give written notice of such appointment to NYTC and the Subject
Unit Owner(s). In the event the arbitrators shall fail to appoint or agree upon
a Third Rental Arbitrator within said ten (10) day period, then the Third Rental
Arbitrator shall be selected by the parties, if they so agree upon such Third
Rental Arbitrator within a further period of five (5) business days. If the
Third Rental Arbitrator shall not be appointed or agreed upon within the time
herein provided, then either party may apply to the American Arbitration
Association for the appointment of such Third Rental Arbitrator. The arbitrators
shall be sworn faithfully and fairly to determine the question at issue. The
question to be determined by the arbitrators shall be: "What is the Fair Market
Rent of the Unit(s) in question as of [the date of exercise of the applicable
option or right to lease said Unit(s)] taking into account the form of NYTC
Sublease, if applicable, which Fair Market Rent may include escalations, if
appropriate?" The arbitrators shall afford to the parties the right to submit
evidence, with the privilege of cross-examination on the question at issue. Such
hearings shall be concluded as expeditiously as practicable and in any event
within thirty (30) days following the appointment of the Third Rental
Arbitrator. All three (3) arbitrators shall submit their determinations of Fair
Market Rent simultaneously in the presence of the parties on a "sealed bid"
basis within fifteen (15) days after conclusion of such hearings. If the two (2)
arbitrators initially appointed by the parties shall have rendered different
determinations of Fair Market Rent, then (i) the determination of the one of
such two (2) arbitrators which is closest to the determination of the Third
Rental Arbitrator shall be deemed to be the Fair Market Rent of the subject
Unit(s), and (ii) if the determination of the Third Rental Arbitrator is exactly
the average of the other two (2) determinations, then the determination of
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the Third Rental Arbitrator shall be deemed the Fair Market Rent of the subject
Unit(s). If the determinations of Fair Market Rent shall include stated
increases in fixed rent, the same shall be discounted to present value at the
annual rate of ten percent (10%) in order to apply the foregoing determination
process. The determination of Fair Market Rent in accordance with this Section
8(b) shall be binding upon the parties. Each party shall pay the fees and
expenses of the arbitrator appointed by it and the fees and expenses of the
Third Rental Arbitrator shall be divided equally between them. In the event any
arbitrator appointed as aforesaid shall thereafter die or become unable or
unwilling to act, such arbitrator's successor shall be appointed in the same
manner provided in this Section 8(b) for the appointment of the arbitrator so
dying or becoming unable or unwilling to act.
In rendering any determination of Fair Market Rent of the subject
Unit(s), the arbitrators shall assume or take into consideration all of the
following:
(i) there is an open and competitive market for the subject Unit(s);
(ii) market rents then being charged, stated increases in fixed
rent, work allowances and rent concessions being granted, for comparable space
in comparable buildings;
(iii) the Unit Owner and tenant are acting prudently and are
typically motivated;
(iv) the Unit Owner and tenant are well informed and well advised
and each is acting in what it considers its own best interest;
(v) the subject Unit(s) are to be let in as-is condition, provided
that the arbitrators shall not take into consideration any above building
standard improvements or finishes which shall have been installed in the subject
Unit(s);
(vi) the Unit Owner will not incur certain costs customarily
incurred by landlords in leasing space to unaffiliated third parties in the open
market, which costs may reduce the Fair Market Rent that would otherwise be
charged by a landlord in comparable circumstances, such as the following:
(A) the Unit Owner will not requested to provide a work
allowance or work letter or incur any related
expenditure in preparing the subject Unit(s) for a
tenant's occupancy (including, without limitation,
architect's and engineering fees, demolition costs and
legal fees);
(B) the Unit Owner will not be required to incur any period
during which the subject Unit(s) shall not be occupied
or during which base rent and additional rent shall be
abated;
(C) the Unit Owner will not incur a brokerage commission;
(D) the Unit Owner will not incur any "takeover costs" or
similar expenses in assuming or mitigating a potential
tenant's leasing costs at another location; and
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(E) the Unit Owner will not incur any advertising or
promotional expenditures in renting the subject Unit(s)
to a prospective tenant.
(vii) the net worth of The New York Times Company in relation to a
hypothetical prospective tenant or its guarantor;
(viii) that the tenant will pay its share of real estate taxes,
PILOT and condominium common charges without base years or base amounts; and
(ix) the term of the NYTC Sublease and the other terms and
conditions of the NYTC Sublease for the subject Unit(s).
In no event, however, shall the arbitrators consider, or make any increase or
decrease in the Fair Market Rent for the subject Unit(s) by reason of the fact
that The New York Times Company (and/or its Affiliates) is a current occupant of
the Building or that the Building is the headquarters for The New York Times
Company, the arbitrators to consider the Fair Market Rent on the basis of a new
transaction with an unrelated third party.
Section 9. REGISTERED MORTGAGEE REQUIREMENTS; RIGHTS OF REGISTERED
MORTGAGEES. (a) The term "REGISTERED MORTGAGE" as used herein shall mean a
mortgage, as the same may be amended, modified or restated from time to time,
given to secure the repayment of money or other obligation owed by a Unit Owner
and held by a Lending Institution or NYTC (i) which shall comply with the
provisions of this SECTION 9 and the affected Unit Owner's Unit Lease, (ii)
which shall include express provisions acknowledging (y) that the lien of such
mortgage is subordinate to this Declaration and the By-Laws (and the provisions
thereof and hereof) and to the Board of Managers' Liens, the NYTC Board of
Managers' Liens and the FC Board of Managers' Liens and (z) that the mortgagee
(and its successors and assigns) will take title subject to this Declaration and
the By-Laws, and (iii) a photostatic copy of which has been delivered to the
other Unit Owners, the Board of Managers, the NYTC Board of Managers, the FC
Board of Managers and the Ground Lessee, together with a certification by the
affected Unit Owner and the mortgagee confirming that the photostatic copy is a
true copy of the mortgage in question. In the event of any assignment of a
Registered Mortgage or in the event of a change of address of a Registered
Mortgagee or of an assignee of such Registered Mortgage, notice of the new name
and address shall be provided to the other Unit Owner, the Board of Managers and
the Ground Lessee. The term "REGISTERED MORTGAGEE" as used herein shall mean the
holder of a Registered Mortgage from time to time.
(b) If a Unit Owner and its Registered Mortgagee shall have served
on the other Unit Owners, the Board of Managers, the NYTC Board of Managers, the
FC Board of Managers and Ground Lessee, in the manner required in the preceding
subparagraph, a notice specifying the name and address of such Registered
Mortgagee, such Registered Mortgagee shall be given a copy of each and every
notice, xxxx and statement and other information, correspondence and material
provided for or required to be given hereunder or under the By-Laws (including
if given by the Board of Managers, the NYTC Board of Managers or the FC Board of
Managers) at the same time as and whenever such notice shall thereafter be given
thereunder or hereunder, at the address last furnished by such Registered
Mortgagee. Any Registered Mortgagee as of the date of recording of this
Declaration shall be deemed to have properly delivered to the Unit Owners a
notice specifying its name and address. After receipt of
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such notice from a Registered Mortgagee, no notice, xxxx, statement and other
correspondence and material thereafter given hereunder or under the By-Laws
(whether by any Unit Owner to any other Unit Owner, or by any Unit Owner to the
Board of Managers, the NYTC Board of Managers or the FC Board of Managers or by
the Board of Managers, the NYTC Board of Managers or the FC Board of Managers to
any Unit Owner) shall be deemed to have been given hereunder or under the
By-Laws unless and until a copy thereof shall have been so given to the
Registered Mortgagee(s). If a Registered Mortgage so provides or otherwise
requires:
(1) Any insurance proceeds or condemnation award payable to a
Unit Owner (and not the Depositary) pursuant to its Unit Lease or
hereunder shall, upon notice from a Registered Mortgagee of such Unit
Owner, be delivered instead to the Unit Owner's Registered Mortgagee.
(2) If a Unit Owner fails to appoint an arbitrator or
otherwise take any action as may be required or permitted hereunder or
under the By-Laws with respect to arbitration, such appointment or action
as otherwise would have been permitted by that Unit Owner may be taken
within the relevant time period applicable to such Unit Owner by its
Registered Mortgagee and such appointment and action shall be recognized
in all respects by the other Unit Owners, the Board of Managers, the NYTC
Board of Managers and the FC Board of Managers.
(b) If more than one Registered Mortgagee having a lien on any Unit
has exercised any of the rights afforded by this SECTION 9, only that Registered
Mortgagee, to the exclusion of all other Registered Mortgagees, whose Registered
Mortgage is most senior in lien with respect to the applicable Unit, shall be
recognized by the other Unit Owners as having exercised such right, for so long
as such Registered Mortgagee shall be diligently exercising its rights hereunder
with respect thereto, and thereafter only the Registered Mortgagee whose
Registered Mortgage is next most senior in lien with respect to the applicable
Unit, shall be recognized by the other Unit Owners.
(c) Each Unit Owner shall give its Registered Mortgagee(s) prompt
notice of any arbitration or legal proceedings involving obligations hereunder
or under the By-Laws. Subject to the provisions of the previous subparagraph,
each Registered Mortgagee shall have the right to intervene in any such
proceedings and to be made a party to such proceedings, and the parties hereto
do hereby consent to such intervention. In the event that any Registered
Mortgagee does not elect to intervene or become a party to any such proceedings,
each Unit Owner shall give its Registered Mortgagee notice and a copy of any
award or decision made in any such proceedings, which decision shall be binding
on such Registered Mortgagee.
(d) Subject to the provisions of SUBSECTION 9(c) of this ARTICLE XX,
and upon receipt by any Registered Mortgagee of any notice that its mortgagor is
in default hereunder, each such Registered Mortgagee (i) shall thereupon have a
period of fifteen (15) Business Days more than given to such Unit Owner in each
instance in the case of a default in the payment of Unit Owner Expenses or in
the payment of any other sum due hereunder or under the By-Laws and thirty (30)
days more than given to such Unit Owner in each instance in the case of any
other default, for remedying the default, or causing the same to be remedied, or
causing action to remedy the default to be commenced, and (ii) shall, within
such periods and otherwise as herein
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provided, have the right to remedy such default, cause the same to be remedied
or cause action to remedy such a default to be commenced. The Board of Managers,
the NYTC Board of Managers and the FC Board of Managers, as applicable, shall
accept performance by a Registered Mortgagee (or its designee or nominee) of any
covenant, condition or agreement on a Unit Owner's part to be performed
hereunder and the exercise by a Registered Mortgagee (or its designee or
nominee) of Unit Owner's self-help remedies with the same force and effect as
though performed or exercised by the defaulting Unit Owner.
Notwithstanding any other provision of this Declaration or the
By-Laws to the contrary (including, without limitation, the provisions of
SECTION 1 of ARTICLE XXI hereof), no default or Event of Default by a Unit Owner
shall be deemed to exist as long as a Registered Mortgagee within fifteen (15)
Business Days after the expiration of the time given to such Unit Owner pursuant
hereto or to the By-Laws to remedy the event or condition which would otherwise
constitute a default or Event of Default hereunder, (A) shall have cured such
default or Event of Default to the extent capable of cure by the payment of
money, or (B) to the extent the same is not capable of cure by the payment of
money, shall have delivered to the Board of Managers, the NYTC Board of
Managers, the FC Board of Managers and Ground Lessee its written agreement to
(y) take the action necessary to cure the default and to prosecute the same to
completion, or (z) if possession of the Unit is required in order to cure the
default, to institute foreclosure proceedings and obtain possession directly or
through a receiver, and to prosecute such proceedings with diligence and, upon
obtaining such possession, commence promptly to cure the default or Event of
Default and to prosecute the same to completion with diligence, provided that
during the period in which such action is being taken (and any foreclosure
proceedings are pending), all of the other obligations of the Unit Owner
hereunder or under the By-Laws, to the extent they are reasonably susceptible of
being performed by the Registered Mortgagee, are being performed. However, at
any time after the delivery of the aforementioned agreement, the Registered
Mortgagee may notify the Board of Managers, the NYTC Board of Managers and the
FC Board of Managers in writing, that it has relinquished possession of the Unit
or that it will not institute foreclosure proceedings or, if such proceedings
have been commenced, that it has discontinued them, and in such event, the
Registered Mortgagee shall have no further liability under such agreement from
and after the date it delivers such notice to the Board of Managers, the NYTC
Board of Managers and the FC Board of Managers (except for any obligations
accruing prior to the date it delivers such notice), and, thereupon, the Board
of Managers, the NYTC Board of Managers and the FC Board of Managers shall have
the unrestricted right to take any other action they deem appropriate by reason
of any default.
(e) In addition, notwithstanding any provision hereof or of the
By-Laws to the contrary, if a Unit Owner fails to pay its Unit Owner Expenses or
any other amounts due hereunder or is otherwise in default hereunder or under
the By-Laws, and if the defaulting Unit Owner's Registered Mortgagee takes the
actions described in subclauses (y) or (z) of the preceding subsection 9(d) (as
and when provided therein), then, following the taking of any such action by the
defaulting Unit Owner's Registered Mortgagee and provided that, as set forth in
the last sentence of this subsection 9(e), the Registered Mortgagee taking such
action shall then be current in the payment of all amounts due in respect of (or
on behalf of) such defaulting Unit Owner, (i) the Registered Mortgagee shall be
entitled to vote in lieu of such defaulting Unit Owner on all matters or actions
to be decided upon by the Unit Owners (as if the Registered Mortgagee were the
defaulting Unit Owner), (ii) the Registered Mortgagee shall be entitled to
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immediately name substitute Managers to act on the Board of Managers, the NYTC
Board of Managers and the FC Board of Managers, as the case may be, (in lieu of
any Managers elected by the defaulting Unit Owner and without regard to the
unexpired term of such Manager's tenure) and (iii) the Board of Managers, the
NYTC Board of Managers and the FC Board of Managers, as applicable, shall rely
(and be entitled to rely) on the votes of or actions taken by the Registered
Mortgagee (or by any Manager elected by the Registered Mortgagee) in determining
the appropriateness of any action to be taken. The right of the Registered
Mortgagee (or of any Manager elected by the Registered Mortgagee) to vote on any
matter to be decided upon (or any action to be taken) by the Unit Owners, as
described in the preceding sentence, shall cease immediately upon the Registered
Mortgagee's failure to timely pay any of the Unit Owner Expenses or other
amounts due or payable by the defaulting Unit Owner for a period of more than
fifteen (15) days after notice by the Board of Managers, the NYTC Board of
Managers or the FC Board of Managers, as applicable, to such Registered
Mortgagee. Payment or performance of any obligation of a Unit Owner by a
Registered Mortgagee (prior to the date on which such Registered Mortgagee or
its assignee or designee or nominee shall take title to the defaulting Unit
Owner's Unit) shall not give rise to any obligation on the part of the
Registered Mortgagee to pay or perform in the future.
In the event of a conflict between the terms of this Section 9 and
any applicable terms of a Unit Lease with respect to the rights or obligations
of Ground Lessee, then the terms of the Unit Lease shall prevail.
Section 10. BINDING EFFECT. The easements, covenants and
restrictions created herein and in the By-Laws shall be binding upon and inure
to the benefit of all parties having or acquiring any right, title or interest
in or to any portion of, or interest or estate in, any Unit.
Section 11. NO SEVERANCE OF OWNERSHIP. No Unit Owner shall execute
any mortgage or other instrument conveying or mortgaging title to its Unit
without including therein such Unit's Common Interest. Any such mortgage or
other instrument purporting to affect one or more of such interests without
including all such interests shall be deemed and taken to include the interest
or interests so omitted even though the latter shall not be expressly mentioned
or described therein.
Section 12. COMPLIANCE WITH UNIT LEASES; CONVEYANCE OF UNIT LEASE IS
CONVEYANCE OF UNIT. (a) Notwithstanding any provision of this Declaration to the
contrary, no Unit Owner shall be permitted to voluntarily convey, sell,
mortgage, pledge, hypothecate, lease or otherwise transfer its interest in any
Unit (x) unless such transaction complies with the terms of its Unit Lease, (y)
unless and until such Unit Owner shall have paid in full to the Board of
Managers (and to the NYTC Board of Managers or the FC Board of Managers, as
applicable) all unpaid Unit Owner Expenses and assessments theretofore assessed
by the Board of Managers, the NYTC Board of Managers or the FC Board of
Managers, as the case may be, against all of such Unit Owner's Units and (z)
until such Unit Owner shall have satisfied all unpaid liens against all of its
Units (and leasehold estate under its Unit Lease), other than any mortgages.
This Section 12(a) shall not apply to a transfer in foreclosure or a transfer in
connection with the termination of a Unit Lease by Ground Lessee due to a
default thereunder.
68
(b) A Unit Owner shall convey its leasehold interest under its Unit
Lease in the event that such Unit Owner conveys or sells its Unit (I.E., a Unit
cannot be conveyed separately from the Unit Lease for such Unit).
ARTICLE XXI
DEFAULTS; REMEDIES
Section 1. EVENTS OF DEFAULT. Each of the following events shall be
deemed an "EVENT OF DEFAULT" hereunder:
(a) if a Unit Owner shall fail to pay when due any of its Unit Owner
Expenses or any other amounts due hereunder or under the By-Laws, and such
default shall continue for a period of fifteen (15) days after written
notice by the Board of Managers to such delinquent Unit Owner; or
(b) if a Unit Owner shall fail to pay any monies expended by the
Board of Managers in curing any default by such Unit Owner hereunder or
under the By-Laws, and such default shall continue for a period of fifteen
(15) days after written notice by the Board of Managers to such delinquent
Unit Owner; or
(c) if a Unit Owner defaults in the performance of any non-monetary
obligation set forth in this Declaration or the By-Laws, and such default
continues for a period of thirty (30) days following receipt by the
defaulting Unit Owner from the Board of Managers of a notice of default,
or, if the default is of a nature that it cannot reasonably be cured
within such thirty (30) day period, if the Unit Owner fails to (i)
commence such cure within such thirty (30) day period and (ii) thereafter
proceed with diligence and continuity to complete such cure; or
(d) if a Unit Owner shall fail to pay any sum owed to Ground Lessee
under its Unit Lease beyond any applicable notice or grace period set
forth therein; or
(e) if a Unit Owner shall default in the performance of any other
obligation of such Unit Owner under its Unit Lease beyond any applicable
notice or grace period set forth therein.
Section 2. BOARD OF MANAGERS' RIGHTS TO CURE. The Board of Managers
shall have the right, but not the obligation, to cure any Event of Default by
any Unit Owner (which continues following the expiration of applicable notice
and grace periods, as hereinabove provided). If the Board of Managers does not
cure an Event of Default within fifteen (15) days after any applicable grace
period, then the non-defaulting Unit Owners shall have the right, but not the
obligation, to cure such Event of Default. The Board of Managers (or the
non-defaulting Unit Owner(s), as the case may be) shall notify Ground Lessee,
the other Unit Owners, the defaulting Unit Owner, and each Unit Owner's
Registered Mortgagee(s), of its intention to cure the defaulting Unit Owner's
Event(s) of Default. Any funds expended by the Board of Managers (or the
non-defaulting Unit Owner(s), as the case may be), together with interest at the
Interest Rate from the date of expenditure to the date of repayment, shall be
reimbursed by the defaulting
69
Unit Owner to the Board of Managers (or the non-defaulting Unit Owner(s), as the
case may be) on demand and shall constitute a Unit Owner Expense for all
purposes hereof.
Section 3. REMEDIES At any time following and during the continuance
of an Event of Default, the Board of Managers may charge the delinquent Unit
Owner (i) interest, at the Interest Rate, on all amounts owing to the Board of
Managers from their due date to the date payment is actually received from the
delinquent Unit Owner, and (ii) if the Board of Managers institutes a suit or
other proceeding to collect sums due hereunder, reasonable attorneys' fees and
costs of suit. In addition, subject to the rights of, and after the expiration
of all applicable cure rights of, Ground Lessee (as provided in SECTION 4 below)
and of Registered Mortgagees (as provided in ARTICLE XX hereof), the Board of
Managers shall be entitled to exercise one or more of the following remedies:
(a) the Board of Managers (on its own behalf or on behalf of Unit
Owner(s) that have cured any other Unit Owner's Event of Default) may
maintain an action to recover any amounts, damages and interest (at the
Interest Rate) owed by the delinquent Unit Owner to the Board of Managers
(or other Unit Owner(s), as the case may be), which suit shall be
maintainable without the Board of Managers' waiving the Board of Manager's
Lien;
(b) the Board of Managers, which shall have (on its own behalf or on
behalf of Unit Owner(s) that have cured any other Unit Owner's Event of
Default) a lien on the subleasehold interest of the delinquent Unit Owner
in its Unit in the amount of all unpaid Unit Owner Expenses and all other
unpaid sums due from such defaulting Unit Owner hereunder or under the
By-Laws (such lien, the "BOARD OF MANAGERS' LIEN") to the Board of
Managers and/or the Unit Owner(s) that have cured such default, may (i)
bring an action to foreclose the Board of Managers' Lien in accordance
with Section 339 of the Real Property Law, and (ii) purchase the
subleasehold interest of the delinquent Unit Owner's Unit at a foreclosure
sale resulting from any such action; or
(c) the Board of Managers (on its own behalf or on behalf of Unit
Owner(s) that have cured any other Unit Owner's Event of Default) may
proceed by appropriate judicial proceedings to enforce the specific
performance or observance by the defaulting Unit Owner of the applicable
provisions of this Declaration or the By-Laws from which the Event of
Default arose, or exercise other equitable remedies.
If a non-defaulting Unit Owner(s) has cured an Event of Default of
another Unit Owner, the Board of Managers shall, on behalf of and at the
direction of the non-defaulting Unit Owner(s), prosecute all of the Board of
Managers' remedies in connection therewith and shall remit to the non-defaulting
Unit Owner(s) any proceeds derived from the execution of such remedies, net of
enforcement costs incurred by the Board of Managers.
Each of the remedies herein described may be exercised concurrently
or sequentially. Any Registered Mortgagee and the Ground Lessee may each bid in
a foreclosure sale of any Unit, subject, however, to the applicable terms of the
applicable Unit Lease.
70
Section 4. DEFAULTING UNIT OWNER'S AND REPRESENTATIVE MANAGER'S
INABILITY TO VOTE; LIMITATIONS ON ABILITY OF NON-DEFAULTING UNIT OWNERS, ACTING
ALONE, TO AMEND DECLARATION. (a) Notwithstanding any provision hereof or of the
By-Laws to the contrary, at any time following and during the continuance of an
Event of Default, (i) the defaulting Unit Owner shall not be entitled to vote on
any matter before (or action or decision to be taken by) the Unit Owners,
including, without limitation, any action or decision with regard to the
exercise of remedies hereunder, and (ii) any Manager elected by, or acting on
behalf of, the defaulting Unit Owner shall not be entitled to vote on any matter
before (or action or decision to be taken by) the Board of Managers.
(b) Notwithstanding any provision hereof or of the By-Laws to the
contrary, at any time following and during the continuance of an Event of
Default and for so long as neither the defaulting Unit Owner's Registered
Mortgagee nor the Ground Lessee shall be voting or be entitled to vote on behalf
of (and in lieu of) such defaulting Unit Owner, the non-defaulting Unit Owners
shall not amend this Declaration in any way which (i) conflicts with any
provision of any Unit Lease, (ii) alters EXHIBIT C attached hereto, (iii) alters
EXHIBIT D attached hereto (or the way in which Unit Owner Expenses are allocated
among the Unit Owners), or (iv) alters this SECTION 4(b), SECTION 7 of ARTICLE
VII hereof, SECTION 1 of ARTICLE IX hereof, SECTION 2 of ARTICLE XX hereof, or
SECTION 6 of ARTICLE XXI hereof.
Section 5. GROUND LESSEE'S RIGHT TO CURE; GROUND LESSEE'S RIGHT TO
VOTE IN LIEU OF DEFAULTING UNIT OWNER, FOLLOWING CURE BY GROUND LESSEE. (a) The
Board of Managers shall give to Ground Lessee, in the manner provided in Article
V of the By-Laws, a copy of each notice of default at the same time as, and
whenever, any such notice of default shall thereafter be given by the Board of
Managers to a defaulting Unit Owner. Notwithstanding any provision hereof to the
contrary, following either (i) receipt, by Ground Lessee and the defaulting Unit
Owner, of a written notice from the defaulting Unit Owner's Registered Mortgagee
to the effect that such Registered Mortgagee will not (or does not intend to)
cure the defaulting Unit Owner's default(s), or (ii) the expiration of the time
period within which the defaulting Unit Owner's Registered Mortgagee may cure
the defaulting Unit Owner's default(s) (as provided in Article XX hereof), and
provided that the Registered Mortgagee shall not have cured the defaulting Unit
Owner's default within such time period, the Ground Lessee thereafter shall have
a period of fifteen (15) Business Days more than given to such Unit Owner in
each instance in the case of a default in the payment of Unit Owner Expenses or
in the payment of any other sum due hereunder or under the By-Laws and thirty
(30) days more than given to such Unit Owner in each instance in the case of any
other default, for remedying the default, or causing the same to be remedied, or
causing action to remedy the default to be commenced.
In the event, however, that Ground Lessee terminates a Unit Lease or
re-enters pursuant to Section 14.3 thereof, then, notwithstanding the permissive
nature of this Section 5(a) or any provision hereof or of the By-Laws, Ground
Lessee shall be required, to the extent the same accrue from and after the later
of the date of such termination or re-entry pursuant to Section 14.3 of the
applicable Unit Lease and eviction of any occupants as to which non-disturbance
protection was not theretofore provided and as to which Ground Lessee has
commenced eviction proceedings promptly after the termination of the Unit Lease
and thereafter is diligently pursuing the same to completion (and in no event
shall the Public Party Possession Date be more than one (1) year after
termination of the Unit Lease or such later date as any claim
71
by the defaulting Unit Owner (i) attempting to invalidate such termination of
the Unit Lease or (ii) ascerting any claim to possession of the Unit, is finally
resolved) (such date, the "PUBLIC PARTY POSSESSION DATE"), to pay all Unit Owner
Expenses relating to such Unit and to perform all other obligations of the Unit
Owner under this Declaration and the By-Laws accruing from and after the date of
such termination. The Board of Managers shall accept performance by Ground
Lessee of any covenant, condition or agreement on Unit Owner's part to be
performed hereunder with the same force and effect as though performed by such
Unit Owner.
(b) In addition, notwithstanding any provision of this Declaration
or the By-Laws to the contrary, if (x) a Unit Owner fails to pay its Unit Owner
Expenses or any other amounts due hereunder, (y) the defaulting Unit Owner's
Registered Mortgagee does not cure the defaulting Unit Owner's default(s) (as
and when provided in ARTICLE XX hereof), and (z) an Event of Default exists
under the applicable Unit Lease, (i) the Ground Lessee shall be entitled to vote
on all matters or actions to be decided upon by the Unit Owners (as if the
Ground Lessee were the defaulting Unit Owner), (ii) the Ground Lessee shall be
entitled to name substitute Managers to act on the Board of Managers (in lieu of
any Managers elected by the defaulting Unit Owner) and (iii) the Board of
Managers shall rely (and be entitled to rely) on the votes of or actions taken
by the Ground Lessee (or by any Manager elected by the Ground Lessee) in
determining the appropriateness of any action to be taken. The right of Ground
Lessee (or of any Manager elected by the Ground Lessee) to vote on any matter to
be decided upon (or any action to be taken) by the Unit Owners, as described in
the preceding sentence, shall cease immediately upon Ground Lessee's failure to
timely pay any of the Unit Owner Expenses or other amounts due or payable by the
defaulting Unit Owner.
Section 6. BOARD OF MANAGERS' LIEN. Notwithstanding any provision of
this Declaration to the contrary, any Board of Managers' Lien shall be prior to
all mortgages, liens or encumbrances affecting any Unit, except liens for real
estate taxes, all "Charges" (as defined in the Unit Leases) past due and unpaid
on the Unit and the Ground Lessee's interest under the Unit Lease. Upon a
Registered Mortgagee's payment (on behalf of a defaulting Unit Owner) to the
Board of Managers at any time and from time to time of monies due to the Board
of Managers (or other Unit Owner(s), as the case may be) and in satisfaction of
the Board of Managers' Lien, the amount of the Board of Managers' Lien to which
the lien of Registered Mortgages are subject and subordinate shall be reduced by
the amount of any such payment(s) made by the Registered Mortgagee to the Board
of Managers in satisfaction of the Board of Managers' Lien.
Section 7. TITLE OF BOARD OF MANAGERS ON FORECLOSURE. In the event
of the Board of Managers' assumption of any Unit Lease at a foreclosure sale, or
in the event that any Unit Owner shall convey its Unit to the Board of Managers
in accordance with Section 339-x of the Real Property Law, leasehold title to
such Unit shall be held by the Board of Managers or its designee on behalf of
all of the other Unit Owners and the Board of Managers shall have the power to
hold, lease, mortgage, vote, sell or otherwise deal with such Unit. In the event
that the leasehold interest in any Unit shall be so acquired by the Board of
Managers, or its designee on behalf of all Unit Owners as tenants-in-common, all
such Unit Owners shall be deemed to have waived all rights of partition with
respect to such Unit.
Section 8. RIGHTS, REMEDIES AND OBLIGATIONS OF THE NYTC BOARD OF
MANAGERS AND FC BOARD OF MANAGERS. All of the rights, remedies and obligations
of the Board of
72
Managers set forth in SECTIONS 1 THROUGH 7 of this ARTICLE XXI shall apply
equally to the NYTC Board of Managers with respect to defaults by NYTC Unit
Owners and to the FC Board of Managers with respect to defaults by FC Unit
Owners, including without limitation, the right to maintain and enforce liens
against Units within the NYTC Collective Unit and FC Collective Unit,
respectively.
ARTICLE XXII
INTERESTS OF OWNERS, TENANTS AND OCCUPANTS SUBJECT AND
SUBORDINATE TO DECLARATION AND GROUND LEASE
The respective interests of all present and future Unit Owners, and
of all present and future tenants, occupants and licensees (including tenants
under any lease, sublease or license granted by a Unit Owner, and any person or
entity claiming under any Unit Owner), shall be subject and subordinate to this
Declaration and the By-Laws, as the same may be amended from time to time in
accordance herewith and therewith, as well as to the Ground Lease and any
applicable Unit Lease. The terms and conditions of any future Unit Leases in all
matters relating to the Common Elements and the remedies for defaults in
connection therewith shall in all cases be the same or substantially the same as
those contained in the other Unit Leases. The mere acquisition of an interest in
or the occupancy or rental of any of the Units, or any part thereof, shall
constitute an agreement and signify that the provisions of this Declaration and
the By-Laws, as the same may be amended from time to time, are accepted and
ratified by the purchaser, occupant or tenant. All of the provisions of this
Declaration and the By-Laws, as the same may be amended from time to time in
accordance herewith and therewith, shall be deemed and taken to be covenants
running with the Land and Building (subject and subordinate to the Ground Lease
and the Unit Leases), as though such provisions were recited and stipulated at
length in each and every lease to any Unit (or to any portion of any Unit).
ARTICLE XXIII
MISCELLANEOUS
Section 1. NO PERSONAL LIABILITY; GROUND LESSEE BENEFICIARY OF
RIGHTS GRANTED GROUND LESSEE. All covenants, stipulations, promises, agreements
and obligations of a Unit Owner contained herein shall be deemed to be
covenants, stipulations, promises, agreements and obligations of such Unit Owner
and not of any shareholder, member, partner, director, officer, employee, lender
or agent of such Unit Owner, and no recourse shall be had hereunder against any
such shareholder, member, director, officer, employee, lender or agent. It is
the express intention of Declarant, the Board of Managers, the NYTC Board of
Managers, the FC Board of Managers and the Unit Owners that Ground Lessee (and
its successors and/or assigns) shall benefit from and enjoy all of the rights
granted to Ground Lessee hereunder. It is also the express intention of
Declarant, the Board of Managers, the NYTC Board of Managers, the FC Board of
Managers and the Unit Owners that Registered Mortgagee(s) (and their successors
and/or assigns) shall benefit from and enjoy all of the rights granted to
Registered Mortgagee(s) hereunder.
73
Section 2. DECLARATION NOT MODIFYING TERMS OF GROUND LEASE OR UNIT
LEASES. In no event shall this Declaration impair or diminish (or be construed
as impairing or diminishing) any of the rights of Ground Lessor or Ground Lessee
under the Ground Lease or the Unit Leases. In no event shall this Declaration
waive or modify (or be construed as waiving or modifying) any provision of the
Ground Lease or the Unit Leases. In the event of any inconsistency between the
provisions of this Declaration and the By-Laws and the Ground Lease or the Unit
Leases, as the case may be, the applicable provisions of the Ground Lease or the
Unit Leases shall govern.
Section 3. COMPLIANCE WITH UNIT LEASES. Each Unit Owner shall comply
with all obligations under its Unit Lease (including all obligations relating to
DUO as set forth therein). The Board of Managers shall comply with the Unit
Leases as to the Common Elements (including DUO to the extent affecting the
Common Elements). The NYTC Board of Managers and the FC Board of Managers shall
comply with the Unit Leases as to the NYTC Limited Common Elements and the FC
Limited Common Elements, respectively, including DUO to the extent affecting the
NYTC Limited Common Elements and the FC Limited Common Elements, respectively.
Ground Lessee is hereby made a third party beneficiary of this Section 3.
Section 4. AMENDMENTS TO UNIT LEASES. Ground Lessee and each Unit
Owner shall have the right to amend, supplement, modify and/or restate from time
to time such Unit Owner's Unit Lease without the consent of the other Unit
Owners so long as such amendment, supplement, modification and/or restatement
shall not relate to the Common Elements and the remedies for defaults in
connection therewith. A Unit Owner amending, supplementing, modifying or
restating its Unit Lease shall deliver promptly to the other Unit Owners copies
of any such amendment, supplement, modification or restatement.
Section 5. CAPTIONS; EXHIBITS. The captions herein (or in the
By-Laws annexed hereto) are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or the intent of any
provision hereof The exhibits attached hereto are incorporated herein as if
fully set forth herein.
Section 6. CERTAIN REFERENCES. (a) The use of the masculine gender
in this Declaration and the By-Laws shall be deemed to refer to the feminine
gender and the use of the singular shall be deemed to refer to the plural and
vice versa whenever the context so requires.
(b) The terms "herein, "hereof' or "hereunder," or similar terms
used in this Declaration, refer to this entire Declaration and not to the
particular provision in which the terms are used, unless the context otherwise
requires. When used in this Declaration or the By-Laws, the terms "now," the
"date hereof" or the "date of this Declaration" shall mean the date on which
this Declaration is filed in the Register's Office. The term "hereafter" when
used in this Declaration or the By-Laws shall mean after the date on which this
Declaration is filed in the Register's Office.
(c) Whenever in the Declaration or the By-Laws the term "including"
is used, it shall be deemed to mean "including, without limitation."
74
(d) Whenever in the Declaration or the By-Laws the term "not be
unreasonably withheld" or similar terms are used, it shall be deemed to mean
"not unreasonably withheld or delayed."
Section 7. GOVERNING LAW. This Declaration (and the By-Laws annexed
hereto) shall be governed by, and construed in all respects in accordance with,
the internal laws of the State of New York.
Section 8. SEVERABILITY. If any provision of this Declaration (or
the By-Laws annexed hereto) is invalid or unenforceable against any Person,
party or under certain circumstances, the remainder of this Declaration (or the
By-Laws, as applicable) and the applicability of such provision to other
Persons, parties or circumstances shall not be affected thereby. Each provision
of this Declaration (and the By-Laws annexed hereto) shall, except as othenvise
herein provided, be valid and enforced to the fullest extent permitted by law.
Section 9. WAIVER. No restriction, condition, obligation or
provision contained in this Declaration (or the By-Laws annexed hereto), shall
be deemed to have been abrogated or waived by reason of any failure to enforce
the same, irrespective of the number of violations or breaches thereof which may
occur.
[the remainder of this page is intentionally blank]
75
IN WITNESS WHEREOF, Declarant has caused this Declaration to be
executed as of the ___ day of ___________________________________ ,20 __.
THE NEW YORK TIMES BUILDING LLC,
a New York limited liability company
By: FC LION LLC, a New York limited liability
company
By: FC 00xx Xxxxxx Associates, LLC, a
New York limited liability company,
its managing member
By: XXX 0 Xxxxx, Xxx., x Xxx Xxxx
corporation, its managing member
By_______________________________
Name:
Title:
By: NYT REAL ESTATE COMPANY LLC,
a New York limited liability company
By_______________________________________
Name:
Title: Manager
76
The foregoing Declaration is hereby consented to by 42nd St.
Development Project, Inc. ("42DP"), in its capacity as Ground Lessor under the
Ground Lease, this __________ day of________, 20___ . 42DP's consent does not
constitute and shall not be construed as effectuating (a) any waiver or
modification of any provision of the Ground Lease or any Unit Lease or (b) any
impairment or diminution of the respective rights, title and interests of the
Ground Lessor or the Ground Lessee under the Ground Lease or any of the Unit
Leases.
42DP is executing this Declaration with the expectation and
understanding that, in the event of any inconsistency between the provisions of
this Declaration and the By-Laws and either the Ground Lease or the Unit Leases,
as the case may be, the applicable provisions of the Ground Lease and/or Unit
Leases shall govern. 42DP is also executing this Declaration to confirm its
agreement to (i) provide notices to the Condominium Association and each
Registered Mortgagee, as more fully described in SECTION 8 of ARTICLE XXI
hereof, and (ii) be bound by the provisions of this Declaration and the By-Laws
which govern approvals or consents to be provided by the undersigned.
Declarant acknowledges (x) that this Declaration does not impose a
condominium on the fee interest in the Premises, and, except as provided in
SECTION 2 of ARTICLE XVIII, no reference herein to "ownership", "conveyance",
"sale", "purchase" or like terms shall refer to such fee interest and (y) that
Ground Lessee shall not be bound by this Declaration and the By-Laws to the
extent the same conflict with the terms of a Unit Lease.
42nd ST. DEVELOPMENT PROJECT, INC
By__________________________________
Name:
Title:
THE NEW YORK TIMES BUILDING LLC,
A New York limited liability company
By: NYT Real Estate Company LLC, a
Delaware limited liability company
By:_______________________________
Name
Title: Manager
By: FC Lion LLC, a New York limited
liability company
77
By: FC 00xx XXXXXX ASSOCIATES,
LLC, a New York limited liability
company
By: XXX 0 Xxxxx, Xxx., x Xxx Xxxx
corporation, its managing member
By:______________________________
Name:
Title:
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of____________ in the year 200__ 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
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of____________ in the year 200_ 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
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of____________ in the year 200_ 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
80
EXHIBIT A TO EXHIBIT 0
[Applicable Section 3(a) Term Sheet/Section 3(b) Term Sheet]
EXHIBIT A
DESCRIPTION OF PROPERTY
A-1
EXHIBIT B
BY-LAWS
OF
THE NEW YORK TIMES BUILDING ASSOCIATION, INC.
A NEW YORK NOT-FOR-PROFIT CORPORATION
ARTICLE I
PLAN OF LEASEHOLD CONDOMINIUM OWNERSHIP
Section 1. NAME. These are the By-Laws of The New York Times
Building Association, Inc.
Section 2. PURPOSE. The Association is formed to serve as a means
through which the Unit Owners may take action with regard to the administration,
management, maintenance, repair and operation of the Premises in accordance with
the Declaration, to which these By-Laws are appended as an exhibit.
Section 3. BY-LAWS APPLICABILITY. The provisions of these By-Laws
are applicable to the Association. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings ascribed to such terms in
the Declaration.
Section 4. OFFICE. The Office of the Association and of the Board of
Managers shall be located at the Building
Section 5. FISCAL YEAR. The fiscal year of the Association shall be
the calendar year unless otherwise determined by the Board of Managers.
ARTICLE II
UNIT OWNER MEETINGS AND VOTES
Section 1. ANNUAL MEETINGS. Within thirty (30) days after the date
on which the Declaration shall be recorded in the Register's Office, Declarant
shall call the first annual Unit Owners' meeting. Thereafter, annual meetings
shall be held on the anniversary of such date in each succeeding year, or on
such other date as shall be selected by the Unit Owners. A representative of
Ground Lessee and of each Registered Mortgagee may attend any such meeting.
Section 2. SPECIAL MEETINGS. Special meetings of the Unit Owners may
be called at any time by any Unit Owner, by the President or by any Vice
President. A representative of Ground Lessee and of each Registered Mortgagee
may attend any such meeting.
B-1
Section 3. NOTICE OF MEETINGS. The President or the Secretary shall
mail a notice of each annual or special meeting, stating the purpose thereof as
well as the time and place where it is to be held, to each Unit Owner of record,
to Ground Lessee and to each Registered Mortgagee, at least ten (10) but not
more than thirty (30) days prior to such meeting. Notice of any meeting need not
be given to a Unit Owner who submits a waiver of notice, in person or by proxy,
whether before or after the meeting, or who attends such meeting, in person or
by proxy. Notice of any meeting need not be given to Ground Lessee or a
Registered Mortgagee if Ground Lessee or such Registered Mortgagee submits a
waiver of notice, whether before or after the meeting, or if a representative of
Ground Lessee or of such Registered Mortgagee attends such meeting.
Section 4. PLACE OF MEETINGS. Meetings shall be held at the
Condominium Office in the Building, or at such other place (in New York County)
as shall be selected by the Board of Managers.
Section 5. QUORUM. (a) A quorum shall be present if a Majority in
Interest of the Unit Owners (and/or their respective Registered Mortgagees
and/or Ground Lessee) entitled to vote shall be present (in person or by proxy)
at a meeting of the Unit Owners.
(b) If a quorum (as described in the preceding paragraph) shall not
be present or represented at any meeting of the Unit Owners, the Unit Owner(s)
or person(s) entitled to vote thereat (as described in the preceding paragraph),
present in person or represented by written proxy, shall have the power to
adjourn the meeting from time to time, without notice other than (i)
announcement of such adjournment at the meeting and (ii) notice of such
adjournment to each Unit Owner not in attendance at the adjourned meeting. Any
business which might have been transacted at the meeting originally noticed may
be transacted at any adjourned meeting.
Section 6. VOTING. (a) Each Unit Owner shall be entitled to one (1)
vote and all decisions must be approved by a Majority in Interest of the Unit
Owners, unless otherwise provided in the Declaration or these By-Laws.
(b) Each Unit Owner may empower any Person to vote as the proxy of
such Unit Owner at any meeting of Unit Owners by written proxy or authorization
filed with the Secretary. Such written proxy or authorization, unless specially
limited by its terms, shall remain effective until there shall be filed with the
Secretary a written revocation of the same or a written proxy or authorization
of later date.
(c) As provided in SECTION 4 of ARTICLE XXI of the Declaration, at
any time following and during the continuance of an Event of Default, the
defaulting Unit Owner shall not be entitled to vote on any matter before (or
action or decision to be taken by) the Unit Owners. In addition (i) as provided
in SECTION 2(f) of ARTICLE XX of the Declaration, a Registered Mortgagee may,
under the circumstances described in such section of the Declaration, vote on
matters before (or actions or decisions to be taken by) the Unit Owners, and
(ii) as provided in SECTION 5(b) of ARTICLE XXI of the Declaration, Ground
Lessee may, under the circumstances described in such section of the
Declaration, vote on matters before (or actions or decisions to be taken by) the
Unit Owners.
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Section 7. WRITTEN CONSENT OF UNIT OWNERS, REGISTERED MORTGAGEE,
GROUND LESSEE. Any action required or permitted to be taken by vote at any
meeting of the Unit Owners may be taken without a meeting if a written consent,
setting forth the action so taken, is signed (x) subject to the provisions of
SECTION 4 of ARTICLE XXI of the Declaration, by a Majority in Interest of the
Unit Owners, (y) if the action so taken requires the consent of a Registered
Mortgagee, by such Registered Mortgagee and (z) if the action so taken requires
the consent of Ground Lessee, by Ground Lessee.
Section 8. UNIT OWNER DECISIONS. Notwithstanding anything to the
contrary in the Declaration or these By-Laws, and subject to the provisions of
SECTION 6(c) of this ARTICLE II and the provisions of SECTION 4 of ARTICLE XXI
of the Declaration, the following actions and/or decisions and/or matters shall
be made or enacted only by the approval of a Majority in Interest of the Unit
Owners, unless the failure to approve or perform the same constitute a default
under the Unit Leases, in which case, it will be deemed approved for all
purposes thereof:
(i) the terms of any service contract to be entered into by
the Board of Managers relating to the Common Elements where the annual
charges for services provided under such service contract equal or exceed
One Hundred Thousand Dollars ($100,000);
(ii) the development and implementation of fire command and
fire safety programs and procedures, the employment of a contractor to
test any fire safety equipment in the Building and the terms of any such
employment, and the installation of additional safety systems or devices
to serve any part of the Building, including, without limitation, smoke
detectors and auxiliary emergency electric power supplies, to the extent
any of the foregoing is located within the Common Areas;
(iii) the development and implementation of security and
safety programs and procedures, the employment of security guards and the
terms of any such employment, and the installation of additional security
or safety systems or devices to serve any part of the Common Areas in
excess of the security and safety systems described in EXHIBIT N attached
hereto;
(iv) adoption of the Budget for each calendar year, as
described in ARTICLE VII of the Declaration;
(v) the imposition and amount of any Special Assessment(s);
(vi) the amount of any reserves for the Condominium, including
reserves for operating costs and expenses, working capital, capital
improvements and/or the performance of Work in and to the Common Elements;
(vii) any change in EXHIBIT C attached hereto, or in EXHIBIT D
attached hereto or in the allocation of Unit Owner Expenses among the Unit
Owners;
(viii) the expenditure of any sums not authorized to be made
by the Board of Managers pursuant to these By-Laws or SECTION 2 of ARTICLE
VII of the Declaration.
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(ix) any Alteration which would (a) affect in any material
respect (including any structural change in or to) any of the Common
Elements, (b) result in a material change in the exterior appearance of
the Building, or (c) materially modify the ingress and egress to the
Common Areas;
(x) the selection of management companies from which the Board
of Managers may solicit bids, and the terms of any management agreement
entered into by the Board of Managers with respect to the management of
the Common Areas pursuant to Section 1(a) of Article VI of the
Declaration;
(xi) the borrowing of money on behalf of the Association;
(xii) any reduction in any of the insurance required to be
maintained by the Board of Managers under these By-Laws;
(xiii) entering into any settlement on behalf of or confess a
judgment against the Association or causing the Association to seek
protection against creditors under any bankruptcy law or in any Court;
(xiv) entering into any contract or commitment on behalf of
the Association which requires or may require under any contingency the
expenditure by the Association of more than $500,000 in the aggregate or
$250,000 in any calendar year, unless expressly covered in the Budget;
(xv) any other action, decision or matter which relates to the
Common Areas;
(xvi) committing any act or failing to act, in any case in
contravention of these By-Laws or the Declaration;
(xvii) decisions with regard to the leasing or licensing for
use of the Rooftop Garden Space and Lobby Sublease Space.
Section 9. EACH UNIT OWNER'S DECISIONS. Each Unit Owner shall have
the right (subject to the provisions of each such Unit Owner's Unit Lease,
mortgage and/or loan documents) to take all actions, and make all
determinations, with respect to its Unit, to the extent that the same are not
expressly reserved to a Majority in Interest of the Unit Owners pursuant to
SECTION 8 of this ARTICLE II or to the Board of Managers under the Declaration
and these By-Laws.
Section 10. UNIT OWNER CONSENTS. Notwithstanding anything in the
Declaration or these By-Laws to the contrary, any decision to be made by any
Unit Owner or the Board of Managers which would have a material adverse impact
on any other Unit or Unit Owner must be approved in writing by the affected Unit
Owner (except that no approval shall be, or is intended to be, required in
connection with any such decision, if the same arises from the claimed failure
of performance, default or Event of Default by any Unit Owner). Additionally,
notwithstanding anything in the Declaration or these By-Laws to the contrary, no
Budget may be approved without the unanimous consent of the Unit Owners which
Budget exceeds in the aggregate one
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hundred five percent (105%) of the last Budget approved by the Unit Owners,
except (i) for other items and/or in such other amounts (regardless of the
amount for such item set forth in the last approved Budget) for those items the
cost of which are reasonably established (such as utilities, insurance and real
estate taxes or PILOT), (ii) to replace or repair broken or worn out items
(regardless of the amount thereof) as necessary to maintain the Building as a
high-rise premium first-class office building, (iii) to comply with DUO as the
same pertains to the Common Elements and (iv) to comply with the Site 8 South
Subway Agreement.
Section 11. RIGHTS, PRIVILEGES AND OBLIGATIONS OF THE NYTC UNIT
OWNERS. All of the rights, privileges and obligations of the Unit Owners and the
Board of Managers set forth in SECTIONS 1 THROUGH 10 of this ARTICLE II shall
apply equally to the NYTC Unit Owners and NYTC Board of Managers, respectively,
with respect to the NYTC Limited Common Elements as if the NYTC Unit Owners were
the Unit Owners, the NYTC Board of Managers were the Board of Managers, the NYTC
Limited Common Elements were the Common Elements and a Majority in Interest of
the NYTC Unit Owners were a Majority in Interest of the Unit Owners.
Section 12. RIGHTS, PRIVILEGES AND OBLIGATIONS OF THE FC UNIT
OWNERS. All of the rights, privileges and obligations of the Unit Owners and the
Board of Managers set forth in SECTIONS 1 THROUGH 10 of this ARTICLE II shall
apply equally to the FC Unit Owners and FC Board of Managers, respectively, with
respect to the FC Limited Common Elements as if the FC Unit Owners were the Unit
Owners, the FC Board of Managers were the Board of Managers, the FC Limited
Common Elements were the Common Elements and a Majority in Interest of the FC
Unit Owners were a Majority in Interest of the Unit Owners.
ARTICLE III
BOARD OF MANAGERS; NYTC BOARD OF MANAGERS; FC BOARD OF MANAGERS
Section 1. A. NUMBER -- QUALIFICATIONS.
(i) BOARD OF MANAGERS. There shall be a Board of Managers of the
Association consisting of nine (9) Managers, which Managers shall be appointed
pursuant to the following formula, and notice of such appointments shall be
delivered promptly to the Unit Owners:
(a) The Retail Unit Owner shall appoint one (1) Manager;
(b) The NYTC Board of Managers (on behalf of the NYTC Unit
Owners) shall appoint five (5) Managers; and
(c) The FC Board of Managers (on behalf of the FC Unit Owners)
shall appoint three (3) Managers.
The initial Board of Managers shall be:
(a) ____________________, appointed by the Retail Unit Owner;
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(b) ____________________, ____________________,
____________________, __________________ and _______________, appointed by the
NYTC Board of Managers (on behalf of the NYTC Unit Owners); and
(c) ________________, _______________,and _____________,
appointed by the FC Board of Managers (on behalf of the FC Unit Owners).
Subject to these By-Laws and the rights of a Registered Mortgagee under SECTION
2(f) of ARTICLE XX of the Declaration and of Ground Lessee pursuant to SECTION 5
of ARTICLE XXI of the Declaration, each Manager shall hold office until the next
annual meeting of the Unit Owners or such earlier or later time that his or her
successor is duly elected and qualified. The Board of Managers shall provide to
each Registered Mortgagee and to the Ground Lessee, promptly upon receipt of a
written request therefor, the names of each Manager comprising the Board of
Managers. No Manager need be a Unit Owner or an officer, director, manager or
employee of a Unit Owner, and each Manager shall be a natural person.
(ii) NYTC BOARD OF MANAGERS. There shall be an NYTC Board of
Managers consisting of five (5) Managers which Managers shall be elected at a
meeting, or, in the case of a failure to act at any such meeting, at a special
meeting called for such purpose, of the NYTC Unit Owners, by vote of a Majority
In Interest of NYTC Unit Owners. Each NYTC Unit Owner shall be entitled to five
(5) votes, each of which may be cast for one or more of the prospective Managers
of the NYTC Board. Each Manager shall hold office until the next annual meeting
of the NYTC Unit Owners or such earlier or later time that his or her successor
is duly elected and qualified. Until the first meeting of NYTC Unit Owners, the
NYTC Board of Managers shall be ______, _____, _____, _____, and ________. The
NYTC Board of Managers shall provide to each Registered Mortgagee and to the
Ground Lessee, promptly upon receipt of a written request therefor, the names of
each Manager comprising the NYTC Board of Managers. No Manager need be the NYTC
Unit Owner, and each Manager shall be a natural person.
(iii) FC BOARD OF MANAGERS. There shall be an FC Board of Managers
consisting of five (5) Managers which Managers shall be elected at a meeting,
or, in the case of a failure to act at any such meeting, at a special meeting
called for such purpose, of the FC Unit Owners, by vote of a Majority In
Interest of FC Unit Owners. Each FC Unit Owner shall be entitled to five (5)
votes, each of which may be cast for one or more of the prospective Managers of
the FC Board. Each Manager shall hold office until the next annual meeting of
the FC Unit Owners or such earlier or later time that his or her successor is
duly elected and qualified. Until the first meeting of FC Unit Owners, the FC
Board of Managers shall be ___, _____, _____, _____, and ________. The FC Board
of Managers shall provide to each Registered Mortgagee and to the Ground Lessee,
promptly upon receipt of a written request therefor, the names of each Manager
comprising the FC Board of Managers. No Manager need be an FC Unit Owner, and
each Manager shall be a natural person.
Section 2. VACANCY AND REPLACEMENT. If the office of any Manager
becomes vacant by reason of death, resignation, retirement, disqualification,
removal from office or otherwise, a successor Manager shall be appointed or
elected, as the case may be, as provided in SECTION 1 of this ARTICLE III and
shall hold office for the unexpired term in respect to which such vacancy
occurred.
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Section 3. REMOVAL. Any Manager may be removed only for cause by the
affirmative vote of a majority of the remaining Managers of the applicable
board, and a successor Manager shall be appointed or elected, as the case may
be, as provided in SECTION 1 of this ARTICLE III for the unexpired term of such
removed Manager.
Section 4. MEETINGS.
(a) The Board of Managers shall hold a meeting at the place of the
meetings of Unit Owners and as soon as practicable after each Unit Owners'
meeting, and no notice thereof shall be necessary. Other meetings may be held at
such times and at such places as the business of the Association shall require
according to resolution of the Board of Managers or upon call of the President
or any Manager. The Board of Managers may establish regular meetings which may
be held at such places and at such times as they may from time to time by vote
determine, and when any such meeting or meetings shall be so determined no
further notice shall be required. Notice of any other meetings and other notices
to the Managers shall be given to each Manager by the Secretary or by the Person
or Persons calling the meeting by delivering written notice of such meeting to
such Manager not less than five (5) days prior to the meeting. Any Manager may
waive notice of any meeting of the Board of Managers in a writing signed by such
Manager or such Manager's duly authorized attorney-in-fact either before, at or
after the meeting. The presence of any Manager at any meeting shall be the
equivalent of a waiver of the requirement of the giving of notice of said
meeting to such Manager. In the case of any meeting of the Board of Managers for
which a notice is required to be given in accordance with the foregoing
provisions of this SECTION 4, there may be transacted at such meeting only such
business as is set forth in such notice. The Board of Managers shall invite a
representative of Ground Lessee and of each Registered Mortgagee to attend each
meeting of the Board of Managers, including telephonic meetings of the Board of
Managers conducted pursuant to SECTION 6 of this ARTICLE III, at least ten (10)
but not more than thirty (30) days prior to the date any such meeting takes
place.
(b) The NYTC Board of Managers shall hold such meetings at such
times and at such places as shall be necessary or desirable according to
resolution of the NYTC Board of Managers or upon call of the President of the
NYTC Board of Managers or any Manager thereof and otherwise in accordance with
the provisions regarding the Board of Managers set forth in paragraph (a) above.
(c) The FC Board of Managers shall hold such meetings at such times
and at such places as shall be necessary or desirable according to resolution of
the FC Board of Managers or upon call of the President of the FC Board of
Managers or any Manager thereof and otherwise in accordance with the provisions
regarding the Board of Managers set forth in paragraph (a) above.
Section 5. QUORUM -- VOTING. Seven (7) Managers, present in person
or represented by written proxy, shall constitute a quorum for the transaction
of business at any meeting of the Board of Managers and, if a quorum of the
Board of Managers is present at a meeting, whether present in person or
represented by written proxy, then the affirmative vote of a majority in number
of such Managers at said meeting shall be sufficient to adopt decisions and take
action binding upon the Board of Managers. If a quorum of the Board of Managers
is not
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present at a meeting, then such meeting may be rescheduled by written notice to
the Managers, and at the rescheduled meeting, four (4) Managers present in
person or represented by written proxy, shall constitute a quorum for the
transaction at such meeting of only such business as is specifically set forth
in the notice.
Three (3) Managers, present in person or represented by written
proxy, shall constitute a quorum for the transaction of business at any meeting
of the NYTC Board of Managers or the FC Board of Managers.
Section 6. WRITTEN CONSENT OF MANAGERS, REGISTERED MORTGAGEE AND
GROUND LESSEE; TELEPHONIC MEETINGS. Any action required or permitted to be taken
by vote at any meeting of the Board of Managers may be taken without a meeting
if a written consent, setting forth the action so taken, is signed (x) by
Managers constituting a quorum for such action, and (y) if the action so taken
requires the consent of any Registered Mortgagee, by such Registered Mortgagee,
and (z) if the action so taken requires the consent of Ground Lessee, by Ground
Lessee. Managers (and a representative of Ground Lessee and of each Registered
Mortgagee) may participate in any meeting by means of a conference telephone or
similar communications equipment in which all Persons participating in such
meeting can hear each other and such participation shall constitute presence at
such a meeting.
Section 7. POWERS.
A. BOARD OF MANAGERS. Subject to the provisions of the Declaration
and SECTION 8 and SECTION 10 of ARTICLE II, (i) the property and business of the
Association shall be managed by the Board of Managers for the benefit of all the
Unit Owners, and (ii) the powers of the Board of Managers shall, hereof,
specifically include but not be limited to the following items:
(a) To determine the cost of (and to deliver Board of Managers'
Statements relating to and collect) Unit Owner Expenses;
(b) Subject to the Budget, and subject to the limitations of ARTICLE
VII of these By-Laws, to make repairs, restore or alter any Units or the Common
Elements after damage or destruction by fire or other casualty or as a result of
condemnation or eminent domain proceedings;
(c) To enter into and upon the Units, when reasonably necessary, in
connection with the maintenance, care and preservation of the Condominium
(including, without limitation, the Common Elements);
(d) To open bank accounts on behalf of the Association and to
designate the signatories to such bank accounts;
(e) To insure and keep insured the Common Elements and Units in
accordance with ARTICLE VI of these By-Laws, and, as provided therein, to adjust
and settle insurance claims;
(f) To collect delinquent assessments by suit or otherwise, and to
xxxxx nuisances;
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(g) Subject to the Budget, to employ and terminate the managing
agent for the Common Elements;
(h) Subject to the Budget, to employ, and terminate the employment
of, employees and independent contractors (other than the managing agent for the
Common Elements) and to purchase supplies and equipment for the Common Elements;
(i) Subject to the Budget, to retain such attorneys, accountants and
other professionals as the Board of Managers deems advisable in exercising any
of its powers;
(j) To bring and defend actions on behalf of the Association, and to
enforce obligations of Unit Owners;
(k) To borrow money on behalf of the Association when required in
connection with the operation or maintenance of the Common Elements or the
performance of Work in and to the Common Elements, provided that (y) the Board
of Managers provides ten (10) days' prior written notice to all of the Unit
Owners of such borrowing, and (z) no lien to secure repayment of any sum so
borrowed may be created on any Unit or the Common Elements;
(l) Subject to ARTICLE XII of the Declaration, preparing, executing
and recording on behalf of all Unit Owners, as their attorney-in-fact, coupled
with an interest, amendments of the Declaration and/or these By-Laws, if
requested by Declarant or any other Unit Owner and approved as required and
permitted under the Declaration or these By-Laws;
(m) To control power shutoffs and other interruptions of the normal
functioning of the Condominium, to facilitate the performance of Work in or to
particular Units and/or the Common Elements, which is permitted or required
under the Declaration and these By-Laws. In making determinations under the
preceding sentence, the Board of Managers will comply with all relevant
provisions of the Declaration and make all reasonable efforts to disrupt the
business operations of Unit Owners and its tenants as little as possible under
the circumstances then prevailing;
(n) Subject to the provisions of the Declaration, these By-Laws, the
Ground Lease and each Registered Mortgage, to grant such easements, licenses or
rights of way as may, at any time, be required for the benefit of the
Condominium and Unit Owners;
(o) If requested by a Unit Owner, to cooperate with such Unit Owner
(at such Unit Owner's sole cost and expense) in any protest or complaint or
administrative or judicial review commenced by such Unit Owner to correct or
contest the tax assessments of the Unit owned by such Unit Owner (it also being
the understanding of the Unit Owners that each Unit Owner shall cooperate with
the other Unit Owner in the conduct, by such other Unit Owner, of any such
protest, complaint, review or contest, at the complainant's request and
expense); and
(p) To carry out any other duties imposed upon the Board of Managers
pursuant to the Declaration and these By-Laws.
The Board of Managers and its officers shall have no liability or responsibility
for the operation, care, upkeep or maintenance of the Units, except as provided
in the Condominium Law and
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except that the Board of Managers shall be liable for its gross negligence, bad
faith and willful misconduct.
B. NYTC BOARD OF MANAGERS. Subject to the provisions of the
Declaration and SECTION 8 and SECTION 10 of ARTICLE II, (i) the NYTC Board of
Managers shall manage the NYTC Limited Common Elements for the benefit of all
the NYTC Unit Owners, and (ii) the powers of the NYTC Board of Managers shall,
hereof, specifically include but not be limited to the following items:
(a) To determine the cost of (and to deliver statements relating to
and collect) NYTC Unit Owner Expenses; and
(b) To carry out any other duties imposed upon the NYTC Board of
Managers pursuant to the Declaration and these By-Laws.
The NYTC Board of Managers and its officers shall have no liability except for
its gross negligence, bad faith and willful misconduct.
C. FC BOARD OF MANAGERS. Subject to the provisions of the
Declaration and SECTION 8 and SECTION 10 of ARTICLE II, (i) the FC Board of
Managers shall manage the FC Limited Common Elements for the benefit of all the
FC Unit Owners, and (ii) the powers of the FC Board of Managers shall, hereof,
specifically include but not be limited to the following items:
(a) To determine the cost of (and to deliver statements relating to
and collect) FC Unit Owner Expenses; and
(b) To carry out any other duties imposed upon the FC Board of
Managers pursuant to the Declaration and these By-Laws.
The FC Board of Managers and its officers shall have no liability except for its
gross negligence, bad faith and willful misconduct.
Section 8. COMPENSATION. Managers shall receive no compensation for
their services.
Section 9. FIDELITY BONDS.
(a) The Board of Managers may require that all persons handling or
responsible for Association funds (including any managing agent) shall furnish
adequate fidelity bonds. The premiums on such bonds will be borne by the Unit
Owners in proportion to their respective Common Interests.
(b) The NYTC Board of Managers may require that all persons handling
or responsible for NYTC Collective Unit funds shall furnish adequate fidelity
bonds. The premiums on such bonds will be borne by the NYTC Unit Owners in
proportion to their respective Common Interests in all of the NYTC Individual
Units, collectively.
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(c) The FC Board of Managers may require that all persons handling
or responsible for FC Collective Unit funds shall furnish adequate fidelity
bonds. The premiums on such bonds will be borne by the FC Unit Owners in
proportion to their respective Common Interests in all of the FC Individual
Units, collectively.
Section 10. INDEMNIFICATION OF MANAGERS, OFFICERS AND EMPLOYEES. To
the fullest extent permitted by law, the Unit Owners shall jointly and severally
indemnify each Person made or threatened to be made a party to any civil or
criminal action or proceeding by reason of the fact that (a) he, or his testator
or intestate, is or was a Manager or an officer of the Board of Managers, NYTC
Board of Managers or FC Board of Managers or (b) he, or his testator or
intestate, being or having been a Manager or an officer of the Board of
Managers, NYTC Board of Managers or FC Board of Managers, served any other
corporation of any type or kind, domestic or foreign, in any capacity, at the
request of the Unit Owners or (c) if such person is Ground Lessee, the exercise
of any right or fulfillment of any obligation granted or imposed upon Ground
Lessee under the Declaration or these By-Laws (except, in each case described in
this SECTION 10, in respect of such Person's willful misconduct or breach of the
Declaration or these By-Laws or unless any such Person acted in a grossly
negligent manner or in bad faith, in which event the foregoing indemnity shall
not apply, but, except in the case of any indemnity inuring to the benefit of
Ground Lessee, such indemnity shall be subordinated to any Registered Mortgage
and shall not constitute a claim against a Unit Owner to the extent cash flow
from the related Unit is insufficient to pay the same).
Section 11. INSURANCE FOR INDEMNIFICATION. To the fullest extent
permitted by law and to the extent available at commercially reasonable premium
costs, the Board of Managers may purchase and maintain insurance to indemnify
Managers and Officers of the Association in instances in which they may be
indemnified by the Unit Owners under the provisions of this ARTICLE III. The
cost of purchasing and maintaining such insurance shall be a Unit Owner Expense
to be shared by the Unit Owners in proportion to their respective Common
Interests. If the NYTC Board of Managers or FC Board of Managers desires to
purchase such insurance, the cost shall be borne by the NYTC Unit Owners or FC
Unit Owners, as the case may be, in proportion to their respective Common
Interests.
ARTICLE IV
OFFICERS
Section 1. NUMBER. The Officers of the Association shall be a
President, a Vice President or such number of Vice Presidents as the Board of
Managers may from time to time determine, a Secretary, a Treasurer and such
other Officers as may be elected in accordance herewith. The NYTC Board of
Manager and the FC Board of Managers may appoint such officers as they shall
determine from time to time. Any two or more offices may be held by the same
Person, except that no person may hold the offices of both President and
Treasurer or President and Secretary. For so long as NYTC occupies Units within
the Building, the Common Interest attributable to which, in the aggregate,
constitutes at least twenty percent (20%), NYTC shall have the right to appoint
the President of the Association.
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Section 2. ELECTION, TERM OF OFFICE AND QUALIFICATION. Each officer
specifically designated in this ARTICLE IV shall be elected by the Board of
Managers (or the NYTC Board of Managers or FC Board of Managers, as the case may
be) and shall hold office until the next meeting of Unit Owners (or NYTC Unit
Owners or FC Unit Owners, as the case may be) and until a successor shall have
been elected, or until his death, resignation or removal in the manner
hereinafter provided. No officer, except the President and Treasurer, need be a
Manager. No officer need be a Unit Owner or an officer, manager or employee of a
Unit Owner.
Section 3. SUBORDINATE OFFICERS AND AGENTS. The Board of Managers
(and the NYTC Board of Managers and FC Board of Managers) may from time to time
elect other officers, including, without limitation, one or more Assistant
Secretaries and/or Assistant Treasurers, each of whom shall hold office for such
period, have such authority and perform such duties as the Board of Managers
(and the NYTC Board of Managers and FC Board of Managers, respectively) may from
time to time determine and shall be subject to removal at the pleasure of the
Board of Managers (and the NYTC Board of Managers and FC Board of Managers,
respectively).
Section 4. REMOVAL. Any officer elected by the Board of Managers may
be removed at any time, either with or without cause, by the affirmative vote of
the Board of Managers. Officers elected by the NYTC Board of Managers and FC
Board of Managers, as the case may be, may also be removed by such boards.
Section 5. VACANCIES. Any vacancy occurring in any office may be
filled by the board that initially appointed such officer.
Section 6. PRESIDENT. The President of any board shall be the chief
executive officer of such board and, subject to the control of such board, shall
preside over meetings of such board and meetings of the Unit Owners represented
by such board and exercise general supervision over the affairs and business of
such board. The President shall, in general, have all powers and perform all
duties incident to the office of President and chief executive officer and shall
exercise and perform such other powers and duties as may from time to time be
assigned by to it by the board appointing it or as otherwise prescribed by these
By-Laws.
Section 7. VICE PRESIDENTS. Each Vice President shall, in general,
have all powers and perform all duties incident to the office of Vice President
and shall exercise and perform such other powers and duties as may from time to
time be assigned by the board appointing it or the President of such board or as
otherwise prescribed by these By-Laws. In the absence or disability of the
President, the Vice President or, if more than one, the Vice Presidents in such
order as the appointing board may from time to time determine, shall exercise
the powers and perform the duties of the President.
Section 8. THE SECRETARY. The Secretary shall act as secretary at,
and keep the minutes of, the meetings of Unit Owners and of the Managers, and
cause the same to be recorded in books provided for that purpose. The Secretary
shall, in general, have all powers and perform all duties incident to the office
of Secretary and shall exercise and perform such other powers and duties as may
from time to time be assigned by the board appointing it or the President or as
otherwise prescribed by these By-Laws.
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Section 9. THE TREASURER. The Treasurer shall have custody of the
funds of the Association and shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Association. The Treasurer of the
Association shall cause all monies and other valuable effects to be deposited in
the name and to the credit of the Association in such depositories as may be
designated by the Board of Managers. The Treasurer shall cause the funds of the
Association to be disbursed when such disbursements have been duly authorized,
taking proper vouchers for such disbursements, and shall render to the President
and the Board of Managers, whenever requested, (a) an account of all
transactions as Treasurer and of the financial condition of the Association, and
(b) true copies of all financial statements and/or reports prepared by the
Association's accountants. The Treasurer shall, in general, have all powers and
perform all duties incident to the office of Treasurer and shall exercise and
perform such other powers and duties as may from time to time be assigned by the
Board of Managers or the President or prescribed by these By-Laws. The Treasurer
of the NYTC Board of Managers shall have the same rights and obligations with
respect to the NYTC Limited Common Elements as the Treasurer of the Board of
Managers has in respect of the Common Elements. The Treasurer of the FC Board of
Managers shall have the same rights and obligations with respect to the FC
Limited Common Elements as the Treasurer of the Board of Managers has in respect
of the Common Elements.
Section 10. AGREEMENTS. All agreements and other instruments shall
be executed by the President or such other person as may be designated by the
Board of Managers.
Section 11. CHECKS. All checks or demands for money and notes of the
Association shall be signed by both the President and Treasurer, or by such
other officer or officers or such other person or persons as the Board of
Managers may from time to time unanimously designate.
Section 12. COMPENSATION. Officers shall receive no compensation for
their services.
ARTICLE V
NOTICES
Section 1. DEFINITION. Whenever under the provisions of the
Declaration or these By-Laws, any notice, demand, request or other communication
required or permitted hereunder (including any xxxx, demand or statement) is
required to be given to the Board of Managers, the Ground Lessee or any Unit
Owner, any such notice shall be in writing and shall be deemed to have been duly
given and received (a) if personally delivered with proof of delivery thereof
(any notice or communication so delivered being deemed to have been received at
the time delivered on a Business Day or, if not a Business Day, the next
succeeding Business Day), or (b) by nationally recognized overnight courier (any
notice or communication so sent being deemed to have been received on the first
succeeding Business Day subsequent to the day so sent), in each case addressed
to the Board of Managers or such Unit Owner at such address as appears on the
books of the Association or to the Ground Lessee at the address set forth in
SECTION 20.01 of the Unit Leases or at such other address given to the Board of
Managers by notice in accordance
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with the provisions of this ARTICLE V. No notice, demand, request or other
communication required or permitted hereunder shall be effective unless given as
aforesaid.
Section 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the Declaration, or of these By-Laws, a waiver
thereof, in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated herein, shall be deemed the equivalent
thereof.
ARTICLE VI
INSURANCE
Section 1. INSURANCE REQUIREMENTS. (a) The Board of Managers shall
obtain and maintain the insurance required in this SECTION 1, and the premiums
for all such insurance shall be a Unit Owner Expense to be shared by the Unit
Owners in proportion to their respective Common Interests: (1) fire insurance
with all risk coverage, vandalism and malicious mischief endorsements, insuring
the Common Elements and covering the interests of the Association, the Board of
Managers and all Unit Owners and their Registered Mortgagees, as their
respective interests in the Common Elements may appear, in an amount equal to
100% of the full replacement value of the portions of the Building required to
be insured against loss or damage pursuant to this clause (1) (exclusive of
foundations and footings), without deduction for depreciation; (2) workers'
compensation insurance, New York State disability benefits insurance and
employer's liability coverage covering any employees of the Association; (3)
boiler and machinery insurance on equipment constituting part of the Common
Elements; (4) commercial general liability coverage, or equivalent liability
coverage, with respect to ownership, operation, maintenance, use and control
against liability for injury or damage to persons or property in or upon the
Common Elements, including the sidewalks; (5) water damage insurance; (6)
combination crime insurance, including blanket employee dishonesty, forgery or
alteration, covering the Board of Managers, officers of the Association, any
employees of the Board of Managers and the Association and also covering the
managing agent, if any; (7) directors' and officers' liability insurance for
members of the Board of Managers and officers of the Association; and (8) any
other insurance deemed advisable or necessary by the Board of Managers or
usually maintained by owners of property similar to the Premises (to the extent
same relates to the Common Elements or matters affecting the Board of Managers,
as opposed to matters relating to the Units exclusively). To the extent not
specified above, all such insurance shall be in such amounts as the Board of
Managers shall from time to time determine to be reasonable (it being
understood, however, that the liability insurance policy to be maintained by the
Board of Managers as described in clause (4) hereof shall not in any event be in
an amount less than ____________ Dollars ($______)(4) in the aggregate and per
occurrence).
(b) All policies of property insurance shall contain, if obtainable
at reasonable rates, an "Agreed Amount" endorsement. Duplicate originals of all
policies of property insurance and of all renewals thereof, together with proof
of payment of premiums, shall be
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(4) To be completed at time of execution
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delivered to Ground Lessee, the Unit Owners and all Registered Mortgagees as
soon as possible prior to expiration of the then current policies (provided
however that certificate(s) evidencing the existence thereof shall be delivered
to Ground Lessee, the Unit Owners and all Registered Mortgagees prior to the
expiration of such policies). Prior to obtaining any policy of property
insurance, and at three (3) year intervals thereafter (or more often, if deemed
appropriate by the Board of Managers), the Board of Managers shall obtain an
appraisal from a property insurance company or otherwise of the full replacement
value of the portions of the Building required to be insured against loss or
damage pursuant to clause (1) of SECTION 1(a) above (exclusive of foundations
and footings), without deduction for depreciation, for the purpose of
determining the amount of property insurance to be obtained pursuant to this
Section. The cost of any such appraisal shall be borne by the Unit Owners to be
shared by the Unit Owners in proportion to their respective Common Interests.
(c) For the insurance policies required pursuant to subparagraph (a)
above, each Unit Owner, Ground Lessee and the Board of Managers shall be
additional insureds as their interests may appear. Each Registered Mortgagee
shall be named as "mortgagee" under a standard New York State mortgagee clause
or its equivalent, and the Depositary shall be named as "loss payee, as agent
for the insureds." For any builder's risk insurance obtained by the Board of
Managers, any general contractor or construction manager shall be named as an
"additional named insured" with respect to any of such general contractor's or
construction manager's materials which are to become part of the Building. All
losses payable under policies issued under this SECTION 1 of this ARTICLE VI
shall be payable to the Depositary who shall hold and/or disburse the same in
strict accordance with the Unit Leases, the Declaration, these By-Laws and the
Depositary Agreement or as otherwise directed by all of the insureds and the
Registered Mortgagees in writing.
(d) In connection with Work performed by the Board of Managers, if
not already covered by insurance policies then maintained by the Association,
the Association shall also obtain and maintain installation floater coverage in
an amount equal to the cost of the contract for any such Work or cause its
contractors to maintain equivalent insurance.
(e) Any insurance maintained by the Association may provide for such
commercially reasonable deductible amounts as the Board of Managers determines
from time to time.
Section 2. UNIT OWNER'S INSURANCE REQUIREMENTS. (a) In addition to
obtaining and maintaining all insurance required under its Unit Lease, each Unit
Owner shall, at its sole cost and expense, maintain or cause to be maintained at
all times (i) fire insurance with all risk coverage, vandalism and malicious
mischief endorsements, insuring its Unit and the contents thereof (except to the
extent covered under the insurance maintained by the Board of Managers), in an
amount equal to 100% of the full replacement value of the leasehold interest in
the Unit or portion thereof insured, without deduction for depreciation, (ii)
commercial general liability coverage, or equivalent liability coverage, against
liability for injury or damage to persons or property in or upon the Premises,
including the sidewalks, and shall be in the minimum amount of
___________________ Dollars ($________) in the aggregate and per occurrence, and
(iii) business interruption insurance in an amount not less than the sum of the
cost to each such Unit Owner of its Unit Owner Expenses hereunder, and each such
Unit Owner's debt service
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payments, for the ensuing one year period. The Unit Owner's insurance shall be
primary and any other insurance available to the Board of Managers, other Unit
Owners, Declarant or any other additional insured shall be excess. The foregoing
clauses (i) through (iii) shall not be applicable to The City of New York if it
succeeds to ownership of a Unit and the foregoing clause (iii) shall not be
applicable to any other Public Parties succeeding to ownership of a Unit.
(b) Any Unit Owner performing Work in the Building shall, at its
sole cost and expense, maintain or cause to be maintained by its contractor or
otherwise the following insurance during its performance of any Work:
1. Workers' Compensation and Disability Benefits Insurance as
required by the laws of the State of New York and Employer's Liability
Insurance; and
2. Products/Completed Operations Coverage to the extent such
insurance coverage is not already included in the Unit Owner's policy
required to be maintained under paragraph (a) above.
(c) No Unit Owner shall (1) do or permit any act or thing to be done
in or to its Unit which will invalidate or be in conflict with any Insurance
Requirements or with the provisions of any public liability, property or other
policy of insurance at any time carried by the Association with respect to the
Premises, (2) keep anything in its Unit which is prohibited by the Fire
Department, the Board of Managers, the Board of Fire Underwriters, or any fire
insurance rating organization or other authority having jurisdiction or (3)
permit a Unit to be used in any manner which will increase the insurance rate
for the Premises over that in effect as of the date of the Declaration, unless
such Unit Owner pays the additional cost thereof as provided below.
(d) Certificate(s) evidencing the existence of any policy required
to be maintained by a Unit Owner hereunder shall be delivered promptly to (and
kept with) the Board of Managers. As soon as possible prior to the expiration or
termination date of any policy, each Unit Owner shall deliver a renewal or
replacement policy, or certificate(s) evidencing the existence thereof, to the
Board of Managers together with proof of the payment of the premium therefor. In
the event that any Unit Owner fails to provide evidence of insurance required to
be provided by such Unit Owner hereunder and does not cure such default within
three (3) business days after request therefor by the Board of Managers, the
Board of Managers shall be authorized (but not required) to procure such
coverage in the amounts stated with all costs thereof to be assessed against the
defaulting Unit Owner's Unit and payable by such Unit Owner.
(e) Nothing herein shall preclude or prevent any Unit Owner from
obtaining or maintaining insurance which is greater in coverage or scope than
that which is required hereunder.
Section 3. GENERAL INSURANCE MATTERS. The policies of insurance
required to be maintained under SECTIONS 1 and 2 of this ARTICLE VI shall meet
the following criteria:
(a) The policies of insurance shall be from a company rated in the
A.M. Best Key Rating Guide with ratings of at least A and of at least X and such
company shall be licensed to do business in the State of New York.
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(b) The policies shall contain a provision that before any change or
cancellation of a policy, at least ninety (90) days' advance written notice,
either by regular mail or by certified mail, return receipt requested, shall be
given (1) in the case of insurance under SECTION 1 above, to Ground Lessee, all
Unit Owners and Registered Mortgagees, and (2) in the case of insurance under
SECTION 2 above, to the Board of Managers.
All policies for property insurance maintained by the Board of
Managers under SECTION 1 above and by the Unit Owners under SECTION 2 above
shall contain waivers of subrogation (and the Unit Owners shall require the same
waivers from any subtenants of their Units). The Board of Managers and each Unit
Owner, on its own behalf and on behalf of its subtenants, hereby releases all
other Unit Owners and their respective subtenants with respect to any claim
(including a claim for negligence) which the releasing party might otherwise
have against such released parties for loss, damage or destruction to its Unit,
or any property owned by the releasing party therein, or interruption of rents
earned therefrom, in either case to the extent to which the releasing party is,
or is required to be, insured under a policy or policies containing a waiver of
subrogation as provided in this Section.
Section 4. ADDITIONAL REQUIREMENTS; UNIT LEASES GOVERN.
Notwithstanding anything to the contrary contained herein, in no event shall the
insurance policies obtained by the Board of Managers or by any Unit Owner
pursuant to this ARTICLE VI contain or be deemed to impose limits or standards
which are lower than those limits or standards required under the Unit Leases
and, if the provisions of the Unit Leases contain additional obligations to
those set forth in this ARTICLE VI, then such provisions shall be deemed to be
incorporated herein by this reference and shall constitute additional
requirements under these By-Laws. If the provisions of the Unit Leases contain
or are deemed to impose limits or standards which are lower than those limits or
standards required hereunder, the Unit Leases shall control.
ARTICLE VII
CASUALTY AND CONDEMNATION; DEPOSITORY;
DISBURSEMENT OF RESTORATION FUNDS BY DEPOSITORY
Section 1. UNIT LEASES GOVERN. Notwithstanding any provision of the
Declaration or these By-Laws, and without limiting the general principle that
the Unit Leases control in all cases, the relevant provisions of each Unit Lease
shall control with respect to (a) the Repair of the Units following any fire or
other casualty to the Units, the Common Elements, the NYTC Limited Common
Elements or the FC Limited Common Elements, (b) the Repair of the Units
following any condemnation or taking of all or any portion of the Units, the
Common Elements, the NYTC Limited Common Elements or the FC Limited Common
Elements and (c) any other matter addressed by this ARTICLE VII.
Section 2. APPOINTMENT OF DEPOSITARY. The Depositary shall be
appointed in the manner hereinafter provided to receive any insurance proceeds
and any condemnation award (if any) paid in respect of (and to be applied to
reconstruct) Common Elements (it being hereby agreed that any proceeds of fire
insurance and any condemnation award paid (or to be paid) in respect of the
Common Elements, as opposed to in respect of any Unit, shall be paid to the
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Depositary); to hold such monies for the benefit of the Unit Owners, the Ground
Lessee, the Board of Managers and any Registered Mortgagees, as their interests
may appear; and to disburse such monies and to act otherwise in accordance with
the terms and provisions of the Unit Leases and these By-Laws.
[_____________](5) is hereby designated as the initial Depositary on the date
hereof and thereafter until it is replaced pursuant to SECTION 6 of this ARTICLE
VII, unless (i) it elects, on not less than sixty (60) days' prior notice to the
Unit Owners, the Ground Lessee, the Board of Managers and any other Registered
Mortgagee, to resign pursuant to SECTION 6 of this ARTICLE VII or (ii) fails to
materially comply with its obligations as Depositary hereunder and is removed
for cause by the Unit Owners or the Board of Managers and is removed pursuant to
the provisions of the Depositary Agreement. Thereafter, the Depositary shall be
appointed by the Unit Owners, subject to the reasonable consent of the
Registered Mortgagees, the Ground Lessee and the Board of Managers, and any
dispute regarding the appointment of the Depositary shall be submitted to
arbitration pursuant to the provisions of ARTICLE IX hereof. The Depositary
shall be entitled to receive from each of the Unit Owners said Unit Owner's
equitable share of the Depositary's reasonable fees and expenses for acting as
Depositary as provided in the Depositary Agreement and may retain said fees and
expenses, free of trust, from monies held by it. Any Depositary appointed to act
hereunder shall execute an agreement (the "DEPOSITARY AGREEMENT") with the Unit
Owners in form reasonably approved by Ground Lessee, the Unit Owners and any
Registered Mortgagee.
Section 3. LIABILITY OF DEPOSITARY. The Depositary shall not be
liable or accountable for any action taken or disbursement made in good faith by
the Depositary, except that arising from its own gross negligence or willful
misconduct. The Depositary's reliance upon advice of independent competent
counsel shall be conclusive evidence of good faith, but shall not be the only
manner in which good faith may be shown. The Depositary shall have no
affirmative obligation to prosecute a determination of the amount of, or to
effect the collection of, any insurance proceeds or award paid (or to be paid)
in respect of the Common Elements, unless the Depositary shall have been given
an express written authorization from the Unit Owners. In addition, the
Depositary may rely conclusively on any certificate furnished by a Certifying
Professional to the Depositary which appears on its face to have been properly
furnished in accordance with the remaining provisions of this ARTICLE VII and
shall not be liable or accountable for any disbursement of funds made by it in
reliance upon such certificate or authorization.
Section 4. INTEREST ON DEPOSITED FUNDS. Unless otherwise specified
in the Depositary Agreement, the Depositary shall purchase with any monies held
by it pursuant hereto, to the extent feasible, negotiable United States Treasury
bills or other United States Treasury obligations maturing within one (1) year
from the date of purchase thereof, or such shorter period as, in the good faith
judgment of the Depositary, would be necessary in order to have sufficient funds
available for the disbursement of funds which may be required under these
By-Laws. The Depositary shall hold all funds paid or delivered to it pursuant
hereto, including any securities or other investments, in trust to be applied,
after deducting the Depositary's fees and expenses as provided in the Depositary
Agreement. Funds to be applied to the restoration of the Common Elements shall
be applied to the payment of the costs of restoration before using any portion
of
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(5) To be completed at time of execution
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such funds for any other purpose (other than the Depositary's fees or expenses),
and then in accordance with the terms and provisions of these By-Laws. Any
interest paid or received by the Depositary on monies or securities held in
trust, and any gain on the redemption or sale of any securities, shall be added
to the monies or securities so held in trust by the Depositary. The monies
received by the Depositary pursuant to any of the provisions of these By-Laws
shall not be commingled with the Depositary's own funds, and shall be held in
trust by the Depositary in trust for the uses and purposes herein provided. Each
condemnation award shall be held and accounted for separately by the Depositary.
Section 5. INDEMNIFICATION OF DEPOSITARY. In consideration of the
services rendered by the Depositary, the Unit Owners jointly and severally
hereby agree to indemnify and hold harmless the Depositary from any and all
damage, liability or expense of any kind whatsoever (including, but not limited
to, reasonable attorneys' fees and expenses) incurred in the course of
Depositary's duties hereunder or in the defense of any claim or claims made
against Depositary by reason of its appointment hereunder, except where due to
the gross negligence or willful misconduct of the Depositary.
Section 6. APPOINTMENT OF SUCCESSOR DEPOSITARY. (a) The Depositary
may resign by serving not less than sixty (60) days' prior notice on all of the
Unit Owners, the Ground Lessee, the Board of Managers and the Registered
Mortgagee(s). Within such sixty (60) day period, the Unit Owners jointly shall
appoint a substitute who qualifies as a Depositary pursuant to the Unit Leases
and SECTION 6(b) below, and the resigning Depositary shall transfer all funds,
together with copies of all records, held by it as Depositary to such
substitute, at which time its duties as Depositary shall cease. If the Unit
Owners do not appoint a substitute within said sixty (60) days, such dispute
shall be submitted to arbitration as provided in ARTICLE IX hereof. If a
Depositary is not appointed within the sixty (60) day period, the resigning
Depositary shall continue to hold, receive and invest any funds payable to the
Depositary hereunder but shall have no other duties or obligations as Depositary
other than to invest the funds as herein provided and to transfer all funds and
records to the new Depositary when selected. The Depositary may, after not less
than twenty (20) days' prior written notice to the Unit Owners, the Board of
Managers and Ground Lessee (given no sooner than forty (40) days after the
resignation notice referred to above), deposit such funds with either a court of
competent jurisdiction or with a bank or trust company in New York, New York who
qualifies as a Depositary.
(b) Pursuant to SECTION 2 of this ARTICLE VII, [_________] shall
serve as the initial Depositary. At such time as [_________] ceases to be a
Registered Mortgagee, the Unit Owners and all Registered Mortgagees, may select
a successor Depositary. Thereafter, the Unit Owners may replace the Depositary
for any reason subject to the reasonable approval of the Registered Mortgagees.
Further, as to any successor Depositary, if any Depositary fails to perform its
obligations hereunder diligently and competently, or ceases to meet the
financial requirements of a Depositary, then any Unit Owner may elect to remove
and replace the Depositary upon notice to the other Unit Owner, the Ground
Lessee, the Board of Managers and the Registered Mortgagees. The notice shall
set forth with specificity the respect or respects in which such Depositary
shall have failed to perform diligently or competently or no longer meets the
financial requirements for a Depositary set forth herein, and shall be
accompanied by any available evidence supporting such claim. Any such removal of
the Depositary shall be subject to the reasonable approval of the other Unit
Owner, Ground Lessee
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and the Registered Mortgagees (other than any Registered Mortgagee serving as
the Depositary). Each party shall have ten (10) days from the date the aforesaid
notice is given within which to approve or disapprove the removal of the
Depositary (and any dispute regarding such removal shall be submitted to
arbitration pursuant to the provisions of ARTICLE IX hereof). The Depositary
sought to be replaced may give evidence or otherwise participate in the
arbitration proceeding, but said proceeding shall not serve any purpose other
than the purpose of determining whether a Unit Owner is entitled to have the
Depositary replaced.
Section 7. REPAIRS OF COMMON ELEMENTS. (a) Following a fire or other
casualty involving, or a condemnation involving, any Common Elements, the Board
of Managers shall apply to the Depositary for disbursement of such proceeds or
of the award (such sums, together with any interest or income named thereon, but
net of the reasonable fees and expenses incurred by the Depositary hereunder
(including architects' and other consultants' fees, the fees of the Certifying
Professional, title insurance premiums and other similar costs and expenses
incurred by the Depositary), collectively, the "RESTORATION FUNDS") and shall
make all necessary Repairs to any damaged Common Elements (such Repairs to the
Common Elements, the "RESTORATION WORK"), with reasonable diligence, and
otherwise as provided in this SECTION 7 and SECTION 8 below. The Depositary
shall disburse the Restoration Funds in connection with the Restoration Work in
installments as the Restoration Work progresses to (and upon submission to the
Depositary of a Restoration Funds Request (as hereinafter defined) by) the Board
of Managers in accordance with the provisions hereof. Each Restoration Funds
Request (together with all supporting documentation) shall be sent to the Unit
Owners, all Registered Mortgagees and Ground Lessee. Advances by the Depositary
shall be made not more than once a month, after the Depositary's receipt of a
written request therefor from the Board of Managers, addressed to the Depositary
(each such request being herein called a "RESTORATION FUNDS REQUEST"), provided
that:
(i) such Restoration Funds Request shall be accompanied by a
certificate of the Board of Managers (A) requesting payment of specified
amounts of the Restoration Funds equal to the amounts then due and owing
to contractors or other parties for performance of all or a portion of the
Restoration Work under specific contracts or agreements in respect of the
Restoration Work, or to the Board of Managers as reimbursement for a cost
of the Restoration Work paid by the Board of Managers, (B) describing in
reasonable detail the services or materials provided under such contracts
or agreements, for which Restoration Funds are then being requested, (C)
stating that such payment does not exceed the amount then due and owing
(or reimbursable) in respect of such services and materials under such
contracts or agreements, (D) stating that all such services have
theretofore been performed, and that all such materials have theretofore
been incorporated as Common Elements into the Building (except for such
materials specifically delineated as not yet being so incorporated into
the Building), and (E) stating that the cost of such services and
materials has not been previously made the basis of any Restoration Funds
Request (such certificate being herein called the "BOARD OF MANAGER'S
CERTIFICATE"); and
(ii) the Depositary receives any certificates and lien waivers
required pursuant to SECTION 8 below.
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(b) There shall be retained from each advance of the Restoration
Funds made on account of labor and materials an amount equal to the retainage
under the applicable contract, but not less than five percent (5%) of the amount
that would otherwise have been payable if there were no retainage under the
applicable contract. The retainage with respect to any trade contract for
construction or materials (excluding any general contractor's fee, construction
manager's fee or any general conditions set forth in such contracts) shall not
be payable prior to the date that is thirty (30) days after the date upon which
such contract shall be fully completed (that is, the date that one hundred
percent (100%) of all services and/or materials to be performed and/or provided
thereunder shall have been fully performed and/or provided, including all "punch
list" items).
(c) Any Restoration Funds from insurance proceeds remaining after
the completion of the Restoration Work, as certified by the Certifying
Professional, shall be paid to the Unit Owner(s) in accordance with their Common
Interest, provided, however that if the Depositary has received a notice from a
Unit Owner and/or its Registered Mortgagee to the effect that the Registered
Mortgagee is entitled to the excess Restoration Funds, then the portion of the
Restoration Funds otherwise payable to the Unit Owner of the Unit secured by a
Registered Mortgage shall be paid to such Registered Mortgagee.
Section 8. CONDITIONS PRECEDENT TO DISBURSEMENT OF RESTORATION
FUNDS. The Restoration Funds Request shall be accompanied by a certificate,
dated not more than ten (10) days prior to such request of the Certifying
Professional certifying, based upon a site observation of the Building made not
more than twenty (20) days prior to the Restoration Funds Request, as to the
following:
(i) The amount then requested to be paid either has been paid
by the Board of Managers or is justly due to contractors, subcontractors,
materialmen, engineers, architects or other Persons (whose names and
addresses shall be stated) who have rendered or furnished services or
materials for the Restoration Work, based on the Certifying Professional's
estimated value of the work in place, giving a brief description of such
services and materials and the principal subdivisions or categories
thereof and the several amounts so paid or due to each of such Persons
with respect thereto, any retainage, and, in reasonable detail, the
progress of the Restoration Work in connection with the Restoration up to
the date of the certificate.
(ii) No part of such expenditure has been or is being made the
basis in any previous or then pending request, for the payment of
Restoration Funds or has been paid out of any of the Restoration Funds.
(iii) The amount then requested does not exceed the cost of
the services and materials described in the certificate, less the
applicable retainage.
(iv) All the Restoration Work theretofore performed has been
performed substantially in accordance with the plans and specifications
for such Restoration Work.
(v) Except in the case of the final request for payment by the
Board of Managers, the balance of the Restoration Funds held by the
Depositary shall be
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sufficient, upon completion of the Restoration Work, to pay for such work
in full, and estimating, in reasonable detail, the total and remaining
costs to complete such Restoration Work.
(vi) In the case of the final request for payment by Owner(s),
the Restoration Work shall have been fully completed (including "punchlist
items").
In addition, each Restoration Funds Request shall be accompanied by waivers of
all mechanic's and other similar liens with respect to all of the Restoration
Work for which a Restoration Funds Request has previously been made and funded
(if and only to the extent that such lien waivers have not been previously
provided).
Section 9. RESTORATION FUNDS DEFICIENCY. If, in connection with any
repair or restoration, a determination that a deficiency exists has been made,
or, if at any time during the prosecution of the Restoration Work the Certifying
Professional reasonably estimates that the cost to complete the Restoration Work
exceeds the Restoration Funds then being held by the Depositary, then (i) each
Unit Owner shall deposit with the Depositary an amount equal to its share of
such deficiency (which amount shall be a percentage of such deficiency
determined by calculating the quotient of (A) the cost to restore such Unit
Owner's Unit divided by (B) the sum of the cost to restore such Unit Owner's
Unit and the aggregate cost to restore the other Units), and (ii) no monies
shall be disbursed by the Depositary for Restoration Work until the provisions
of this sentence or the next sentence have been satisfied. In lieu of depositing
its share of such deficiency, a Unit Owner may deliver to the Depositary an
irrevocable and unconditional letter of credit in favor of the Depositary in the
face amount of the share of the deficiency owed by such Unit Owner or such other
security as may be reasonably acceptable to the other Unit Owners, provided the
same is in a form reasonably satisfactory to the Registered Mortgagee(s), which
letter of credit shall expire no earlier than sixty (60) days beyond the
estimated completion date for the Restoration Work. Any amounts or other
security deposited hereunder, and any interest or income earned thereon, shall
be drawn upon and applied by the Depositary to the extent needed to the cost of
the Restoration Work after application of any insurance proceeds or condemnation
awards, as the case may be, to the cost of any Restoration Work. To the extent
not drawn upon and/or applied, the Depositary shall after completion of the
Restoration Work, return the balance to the Unit Owner(s) who deposited the
security.
Section 10. WORK. All Repairs hereunder shall be performed in
accordance with the provisions of ARTICLE X of the Declaration.
Section 11. REALLOCATION OF COMMON INTERESTS. If the Building and/or
any Unit are reconstructed or repaired following a fire or other casualty, or
following a taking, and the size or volume of the Building or of any Unit
changes (in the course of such reconstruction or repair) from its existing size
or volume, the Board of Managers (acting on behalf of the Unit Owners) shall (y)
fairly and reasonably adjust the Unit Owner's Common Interest using the same
measurement standard as was used initially so that the percentage interests
shall continue to reflect the proportion that the floor area of each Unit bears
to the aggregate floor area of all of the Units in the Building, and (z) prepare
and record in the Register's office an amendment to EXHIBIT C hereto, confirming
such reallocation.
B-22
Section 12. SECTION 339-cc OF REAL PROPERTY LAW. Declarant and each
Unit Owner hereby waives the provisions of Section 339-cc of the Real Property
Law and agree that the provisions of this ARTICLE VII shall govern and control
in lieu thereof.
ARTICLE VIII
AMENDMENTS
Section 1. GENERAL PROVISIONS REGARDING AMENDMENT.
(a) These By-Laws may be altered, amended or added to by vote of all
Unit Owners in person or by proxy at a meeting duly held in accordance with the
provisions of these By-Laws.
(b) Except with respect to non-material administrative matters under
these By-Laws (which shall not require the approval of Ground Lessee, but a copy
of which shall be provided to Ground Lessee not less than ten (10) business days
prior to its effective date), these By-Laws shall not be amended without Ground
Lessee's prior written approval. The Board of Managers shall submit a draft of
any supplement, amendment or modification of these By-Laws to Ground Lessee and
Ground Lessee shall have the right to approve same. Any approval or disapproval
of an amendment hereto shall be given by Ground Lessee within ten (10) business
days of its receipt of a written request therefor. Any amendment of these
By-Laws which is entered into without Ground Lessee's prior written approval
shall be void AB INITIO.
(c) Each Unit Owner shall submit a draft of any supplement,
amendment or modification of these By-Laws to its Registered Mortgagee(s) and
such Registered Mortgagee(s) shall have the right to approve same (such approval
not to be unreasonably withheld). Any supplement, amendment or modification
which is entered into without notice to (and approval by) each Unit Owner's
Registered Mortgagees shall be void AB INITIO. Any approval or disapproval of an
amendment hereto shall be given by each Registered Mortgagee within ten (10)
business days of each such Registered Mortgagee's receipt of a written request
therefor, and each such Registered Mortgagee's failure to timely respond to any
such request (I.E., within such ten (10) business day period) shall, subject to
the provisions of SECTION 4 of ARTICLE XXIII of the Declaration, constitute (and
be deemed to constitute) each such Registered Mortgagee's approval of the
proposed amendment.
(d) No amendment of these By-Laws shall be effective until recorded
in the Register's Office.
Section 2. EXECUTION AND DELIVERY OF AMENDMENTS. Any amendment to
these By-Laws may be executed: if on behalf of the Board of Managers, by the
President or Vice President and the Secretary or an Assistant Secretary of the
Board of Managers; or if on behalf of a Unit Owner, by any general partner,
member, officer or other authorized person of such Unit Owner. There shall be
attached to such amendment an original executed Secretary's Certification,
certifying that the requisite number and percentage of Unit Owners approved the
amendment at a duly constituted meeting or (when permitted hereunder) in writing
without a
B-23
meeting, in which Certification shall be described the number or percentage of
Unit Owners so consenting and (if voted upon at a meeting) the date and time of
the meeting.
ARTICLE IX
ARBITRATION
Section 1. SUBMISSION TO ARBITRATION. Any dispute, controversy or
claim arising out of or concerning interpretation of the Declaration or these
By-Laws, in which the only parties are Unit Owners or Unit Owner(s) and the
Board of Managers, shall be determined and resolved by arbitration (and not by
litigation) conducted in the City, County and State of New York in accordance
with the terms of this ARTICLE IX and the then applicable commercial arbitration
rules of the American Arbitration Association (together with any successor
thereto, the "AAA"), provided that if the terms of this ARTICLE IX differ from
or conflict with the then applicable commercial arbitration rules, the
arbitrators shall be chosen and the arbitration shall be governed in accordance
with and pursuant to the terms and provisions of this ARTICLE IX. In no event,
however, shall any Unit Owner that is a Public Party be obligated to submit to
arbitration any matter which is a dispute between the Ground Lessee and a Unit
Owner in their capacities as lessor and lessee under a Unit Lease except as may
be set forth in the applicable Unit Lease.
Section 2. SELECTION OF ARBITRATOR. The party invoking the procedure
set forth in this ARTICLE IX (the "REQUESTING PARTY") shall send a notice (such
notice, the "ARBITRATION NOTICE") to the other parties to the dispute,
controversy or claim (I.E., to the other Unit Owner(s) involved in the dispute,
if any, and/or to the Board of Managers) (a) requesting that the dispute,
controversy or claim be submitted to arbitration, (b) setting forth with
particularity the nature of the dispute, controversy or claim sought to be
arbitrated, and (c) stating that the party sending the Arbitration Notice
desires to meet within ten (10) days with the other parties to the dispute,
controversy or claim to attempt to agree on a single arbitrator (the
"ARBITRATOR") to determine the dispute, controversy or claim to be arbitrated.
If the parties to the dispute, controversy or claim have not agreed on a single
Arbitrator within fifteen (15) days after the giving of the Arbitration Notice,
then any party involved in the dispute, controversy or claim (including the
Requesting Party) may apply to the local office of the AAA, or, if the AAA shall
not then exist or shall fail, refuse or be unable to act such that the
Arbitrator is not appointed by the AAA within thirty (30) days after application
therefor, then any party involved in the dispute, controversy or claim
(including the Requesting Party) may apply to the presiding judge of the Supreme
Court of New York County (the "COURT") for the appointment of the Arbitrator and
neither party to the dispute shall raise any question as to the Court's full
power and jurisdiction to entertain the application and make the appointment.
The date on which the Arbitrator is appointed, by agreement of the parties, by
appointment by the AAA or by appointment by the Court, is referred to herein as
the "APPOINTMENT DATE." If any Arbitrator appointed hereunder shall be unwilling
or unable, for any reason, to serve, or continue to serve, a replacement shall
be appointed in the same manner as the original Arbitrator.
Section 3. CONDUCT OF ARBITRATION PROCEEDING. (a) The arbitration
shall be conducted in accordance with the then prevailing rules of the local
office of the AAA, modified as follows:
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(i) The Arbitrator shall be disinterested and impartial, shall
not be affiliated with any party to the arbitration, and shall have at
least ten (10) years' experience with the matter which is the subject of
the arbitration.
(ii) Promptly following the Appointment Date, the Arbitrator
shall hold one or more hearings with respect to the matter which is the
subject of the arbitration. The hearings shall be held in the City of New
York, at such location and time as shall be specified by the Arbitrator.
Each of the parties shall be entitled to present all relevant evidence and
to cross-examine witnesses at the hearings. The Arbitrator shall have the
authority to adjourn any hearing to such later date as the Arbitrator
shall specify, provided that in all events all hearings shall be concluded
not later than forty-five (45) days following the Appointment Date.
(iii) The Arbitrator shall render his or her determination in
a signed and acknowledged written instrument, original counterparts of
which shall be sent simultaneously to all of the parties to the
arbitration, within ten (10) days after the conclusion of the hearing(s)
required by clause (ii) of this subparagraph.
(b) This provision shall constitute a written agreement under the
Act to submit any dispute regarding the Declaration or By-Laws to arbitration.
(c) The arbitration decision, determined as provided in this
Section, shall be conclusive and binding on the parties, shall constitute an
"award" by the Arbitrator within the meaning of the AAA rules and applicable law
and judgment may be entered thereon in any court of competent jurisdiction.
(d) Each party shall pay its own fees and expenses relating to the
arbitration (including, without being limited to, the fees and expenses of its
counsel and of experts and witnesses retained or called by it). Each party shall
pay one-half (1/2) of the fees and expenses of the AAA and of the Arbitrator,
provided that the Arbitrator shall have the authority to award such fees and
expenses in favor of the prevailing party if the Arbitrator determines that the
position of the non-prevailing party lacked substantial basis.
Section 4. LIMITATION ON POWER OF ARBITRATORS. The Arbitrator shall
apply the law of the State of New York without regard to conflicts of laws
principles and shall have no power to vary or modify any of the provisions of
any of the Declaration, these By-Laws, the Ground Lease or any Unit Lease, and
its powers and jurisdiction are hereby limited accordingly. In no event shall
any Unit Owner seek (or shall the Arbitrator award) punitive damages, and the
Arbitrator's powers shall be so limited.
Section 5. PAYMENT OF UNDISPUTED UNIT OWNER EXPENSES DURING
ARBITRATION PROCEEDING. To the extent any dispute, controversy or claim concerns
liability for or payment of Unit Owner Expenses assessed against a Unit, the
Unit Owner of such Unit shall pay any portion of such Unit Owner Expenses which
is not in dispute within ten (10) days after a request by the Board of Managers
that such dispute, controversy or claim be submitted to arbitration, or
simultaneously with such a request that such dispute, controversy or claim be
submitted to arbitration, if such request is made by such Unit Owner.
B-25
ARTICLE X
COMPLIANCE WITH LAWS
Section 1. COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS. (a) The
Board of Managers, the NYTC Board of Managers and the FC Board of Managers shall
each comply with the certificate(s) of occupancy obtained for the Building and
any Law or any Insurance Requirements covering or applicable to the Common
Elements, the NYTC Limited Common Elements and the FC Limited Common Elements,
respectively, except, in any instance, to the extent that a Unit Owner is
required by any provision of these By-Laws or the Declaration to effect such
compliance. The cost and expense of any such compliance shall be borne by the
Unit Owners as a Unit Owner Expense.
(b) Each Unit Owner, at its sole cost and expense, shall comply with
any certificate(s) of occupancy for the Building (whether temporary or
permanent) or any portion thereof and with any Law and any Insurance Requirement
covering or applicable to the Unit of such Unit Owner, or the manner of use or
operation of the Unit by such Unit Owner; PROVIDED, HOWEVER, that this clause
shall not require any Unit Owner to effect compliance with any such Law or
Insurance Requirement covering or applicable to the Common Elements located
within such Unit.
Section 2. BOARD OF MANAGERS', NYTC BOARD OF MANAGERS' AND FC BOARD
OF MANAGERS' RIGHTS TO CONTEST.
(a) Subject to the provisions of each Unit Lease, the Board of
Managers shall have the right on behalf of all Unit Owners to contest any
requirement of Law or any Insurance Requirement relating to the use, operation
and maintenance of the Common Elements, provided that such contest or
noncompliance is permitted under Law and does not involve any risk (except to a
de minimus extent) of: (i) foreclosure, forfeiture or loss of any part of the
Premises, or any interest therein; or (ii) civil or criminal liability being
imposed on (v) Ground Lessee, (w) any member of the Board of Managers, (x) any
Unit Owner, (y) Declarant, or (z) any Registered Mortgagee; or (ii) the creation
of any lien, encumbrance or other charge against any part of the Premises; or
(iii) impairment of any insurance maintained hereunder.
(b) Subject to the provisions of each Unit Lease, the NYTC Board of
Managers shall have the right on behalf of all NYTC Unit Owners to contest any
requirement of Law or any Insurance Requirement relating to the use, operation
and maintenance of the NYTC Limited Common Elements, provided that such contest
or noncompliance is permitted under Law and does not involve any risk (except to
a de minimus extent) of: (i) foreclosure, forfeiture or loss of any part of the
Premises, or any interest therein; or (ii) civil or criminal liability being
imposed on (v) Ground Lessee, (w) any member of the NYTC Board of Managers, (x)
any NYTC Unit Owner, (y) Declarant, or (z) any Registered Mortgagee or any NYTC
Unit Owner; or (ii) the creation of any lien, encumbrance or other charge
against any part of the Premises; or (iii) impairment of any insurance
maintained hereunder.
(c) Subject to the provisions of each Unit Lease, the FC Board of
Managers shall have the right on behalf of all FC Unit Owners to contest any
requirement of Law or any
B-26
Insurance Requirement relating to the use, operation and maintenance of the FC
Limited Common Elements, provided that such contest or noncompliance is
permitted under Law and does not involve any risk (except to a de minimus
extent) of: (i) foreclosure, forfeiture or loss of any part of the Premises, or
any interest therein; or (ii) civil or criminal liability being imposed on (v)
Ground Lessee, (w) any member of the FC Board of Managers, (x) any FC Unit
Owner, (y) Declarant, or (z) any Registered Mortgagee or any FC Unit Owner; or
(ii) the creation of any lien, encumbrance or other charge against any part of
the Premises; or (iii) impairment of any insurance maintained hereunder.
Section 3. UNIT OWNERS' RIGHTS TO CONTEST. Subject to the provisions
of each Unit Lease, each Unit Owner shall have the right to contest any
requirement of Law applicable to its Unit or the use, operation and occupancy of
its Unit, provided that: (a) the Unit Owner contesting such requirement keeps
the Board of Managers advised as to the status of such proceeding; (b) such
contest or noncompliance does not involve any risk (except to a de minimus
extent) of (i) foreclosure, forfeiture or loss of any part of the Premises,
other than such Unit Owner's Unit; or (ii) civil or criminal liability being
imposed on (v) Ground Lessee, (w) any member of the Board of Managers, (x)
Declarant, (y) any Registered Mortgagee, or (z) any Unit Owner other than the
contesting Unit Owner; or (iii) the creation of any lien, encumbrance or other
charge against any part of the Premises, other than against such Unit Owner's
Unit; or (iv) impairment of any insurance maintained hereunder; (c) such contest
or noncompliance does not constitute or will not result in any violation of Law;
and (d) the contesting Unit Owner shall indemnify Ground Lessee, the Board of
Managers and the other Unit Owner(s) and hold Ground Lessee, the Board of
Managers and the other Unit Owner(s) harmless from and against any expense, cost
or liability resulting from or incurred in connection with such contest or
noncompliance.
ARTICLE XI
CONFLICTS
These By-Laws are intended to comply with the requirements of the
Condominium Law and all other Laws. In case any of these By-Laws shall conflict
with the provisions of the Declaration or any other Law, then the provisions of
the Declaration or such other Law, as the case may be, shall control.
B-27
EXHIBIT C
Percentage
Approx. Interest In
Unit Square Foot Common Adjoining
Designation Tax Lot Floor Area Elements Common Areas Intended Use
----------- ------- ----------- ----------- ------------ ------------
C-1
EXHIBIT D
DISPROPORTIONATE ALLOCATION OF EXPENSES AMONG UNITS
Among other allocations, certain costs associated with the SPU Unit, the NYTC
Collective Unit and/or the Retail Unit, as the case may be (e.g., additional
maintenance and security services over those agreed by the Unit Owners to be
base building services, which additional maintenance and/or security services
are attributable to one or more, but not all, of the SPU Unit, the NYTC
Collective Unit and the Retail Unit), will be allocated to the Unit Owners other
than in proportion to their Common Interests.
[CHART SHOWING SUCH CATEGORIES OF EXPENSES AND THE PERCENTAGE
ALLOCATIONS TO EACH UNIT OWNER WILL BE ATTACHED AT SIGNING]
D-1
EXHIBIT E
LIST OF PLANS
E-1
EXHIBIT F-1
DESCRIPTIONS OF FC INDIVIDUAL UNITS
[F-1]-1
EXHIBIT F-2
DESCRIPTIONS OF NYTC INDIVIDUAL UNITS
[F-2]-1
EXHIBIT G
FIRST BUDGET
G-1
EXHIBIT H-1
SIGNAGE LOCATIONS
[H-1]-1
EXHIBIT H-2
INTERIOR SIGNAGE LOCATIONS
[H-2]-1
EXHIBIT H-3
CANOPIES & AWNINGS LOCATIONS
B-2
EXHIBIT I
Any Person or entity whose primary business is any of the following:
(1) the collection and distribution of news by one or more of the following
media: (a) newspapers, (b) magazines, (c) internet, (d) television, and/or (e)
radio;
Any use which includes any of the following:
(2) a Person or entity which engages in governmental lobbying, but not a law
firm or public relations firm that engages in lobbying activity;
(3) a "fast food" restaurant at which food is prepared on-premises and which
operates under a national or regional multi-store food concept such as, by way
of example only, McDonald's, Nathan's, Wendy's, Taco Xxxx and other similar
facilities; but specifically not including, a specialty eat-in or take out
"quick food" establishment that offers higher quality food such as, by way of
example only, Cosi, Starbucks and other similar facilities;
(4) photographic reproductions and/or offset printing (other than use by office
tenants of portions of the premises for photocopying in connection with their
own business and/or activities), provided, however, the foregoing shall not
apply to the Retail Unit if permitted under DUO;
(5) employment agency (other than executive search firms) or job training center
(6) a school or classroom or juvenile or adult day care or drop in center;
(7) medical uses, including without limitation, hospital, medical or dental
offices, agencies, or clinics;
(8) an auction house, provided, however, the foregoing shall not apply to high
end auction houses specializing in art and historical artifacts located in the
Retail Unit;
(9) gambling activities;
(10) obscene, pornographic or similar disreputable activities;
(11) an agency, department, bureau or controlled entity of the United States
Government, any state or municipality within the United States, or any political
subdivision of any of them, except if such use is for administrative, executive,
professional or technical offices and does not result in (i) more off-the-street
traffic (i.e., without appointments) in the Building above the ground floor, or
(ii) in more pedestrian traffic in the Building above the ground floor, than
would arise, in the case of either clause (i) or (ii) of this sentence, from
normal office occupancy in a first class office building, and specifically not
permitting a welfare or social services office, homeless shelter or homeless
assistance center, court or court-related facility, parking violations bureau or
any other similar purpose;
I-1
(12) an agency, department, bureau or controlled entity of the United Nations or
any foreign government (other than such agency, department, bureau or controlled
entity which is not considered controversial in the sole and absolute discretion
of NYTC), except if such use is for administrative, executive, professional or
technical offices and does not result in (i) more off-the-street traffic (i.e.,
without appointments) in the Building above the ground floor or in
demonstrations at the Building, or (ii) in more pedestrian traffic in the
Building above the ground floor, than would arise, in the case of either clause
(i) or (ii) of this sentence, from normal office occupancy in a first class
office building;
(13) an outlet (except that if a Public Party is the Unit Owner, in which case a
premium outlet shall be acceptable), warehouse, close-out bargain or any form of
"deep discount" store, including, without limitation, stores whose primary
business is the sale or discounting of merchandise at "closeout," "wholesale",
"bargain basement", "warehouse", or other similarly discounted prices or the
conduct of fire, "going out of business", bankruptcy and sheriff or receiver
sales;
(14) a drug or any other type of rehabilitation center;
(15) a pawn shop or flea market;
(16) an arcade for videos or other electronic games;
(17) a live entertainment performance space, other than an eating or drinking
establishment where entertainment is included, and other than as required to
satisfy DUO; or
(18) any use prohibited under DUO or the Unit Leases.
I-2
EXHIBIT J
FORM OF SALE AND PURCHASE AGREEMENT
I-3
AGREEMENT OF SALE AND PURCHASE
between
___________________________, SELLER
and
___________________________, PURCHASER
Date: ________
PROPERTY:
Condominium Unit No. ___
The New York Times Building Condominium
New York, New York
SCHEDULES
Schedule A ..................................................Description of Unit
Schedule B ...................................................Schedule of Leases
Schedule C ............................................................Rent Roll
Schedule D-1 ...............................................Brokerage Agreements
Schedule D-2 .........................................Unpaid Leasing Commissions
Schedule E-1 .........................................Incomplete Landlord's Work
Schedule E-2 ......................................Unpaid Tenant Work Allowances
Schedule F ......................................................Contract Survey
Schedule G .........Covenants, Restrictions, Easements, and Agreements of Record
Schedule H ...................................................Pending Litigation
Schedule I ..................................Notices of Default under Unit Lease
Schedule J ................................................Notices of Violations
EXHIBITS
Exhibit 1 Form of Deed
Exhibit 2 Xxxx of Sale
Exhibit 3 Intentionally omitted
Exhibit 4 Assignment and Assumption of Landlord's Interest in Leases
Exhibit 5 Assignment of Licenses, Permits, Warranties and Guarantees
Exhibit 6 Post-Closing Adjustment Letter
Exhibit 7 FIRPTA Certificate
INDEX OF DEFINED TERMS
Adjustment Date .......................................................... 14
Agreement ................................................................ 1
Brokerage Agreement Binders .............................................. 5
Brokerage Agreements ..................................................... 5
Building ................................................................. 8
Business Day ............................................................. 23
CAM ...................................................................... 15
Closing .................................................................. 14
Closing Date ............................................................. 23
Code ..................................................................... 6
Condominium .............................................................. 1
Declaration .............................................................. 1
Deed ..................................................................... 20
escalation rent .......................................................... 15
Federal Reserve Funds .................................................... 2
Fixed Rents .............................................................. 14
FormTP-584 ............................................................... 22
Hazardous Materials ...................................................... 6
Land ..................................................................... 8
Lease Binders ............................................................ 4
Leases ................................................................... 2
NYTC Floors .............................................................. 12
Overage Rent ............................................................. 15
percentage rent .......................................................... 15
Permitted Encumbrances ................................................... 8
Post-Closing Adjustment Letter ...........................................21, vi
Property ................................................................. 1
Purchaser ................................................................ 1
Rent Roll ................................................................ 5
RPT Return ............................................................... 22
Schedule of Leases ....................................................... 4
Seller ................................................................... 1
Seller Default ........................................................... 25
Seller's Restoration Work ................................................11, 12
Slab Cut Improvements .................................................... 11
Tax Law .................................................................. 10
Tenant ................................................................... 2
Tenants .................................................................. 2
Title Company ............................................................ 9
Title Objections ......................................................... 9
Unit ..................................................................... 1
Unit Lease ............................................................... 6
Warranting Party ......................................................... 26
EXHIBIT J
FORM OF SALE AND PURCHASE AGREEMENT
AGREEMENT OF SALE AND PURCHASE (this "Agreement") is made and entered into
as of __________, 2___, by and between [FC UNIT OWNER], a ____________________
having an office at _________________________________ ("Seller"), and
_________________________________(7), a ________________________, having an
office at __________________________________ ("Purchaser").
W I T N E S S E T H:
Seller hereby agrees to sell and convey to Purchaser, and Purchaser hereby
agrees to purchase from Seller, upon the terms and conditions hereinafter set
forth, the "Property" (as such term is defined in Article 1 hereof).
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, and subject to the terms,
provisions and conditions hereof, Seller and Purchaser hereby covenant and agree
as follows:
ARTICLE 1
INCLUSIONS IN SALE
1.1. The term "Property" shall mean the following:
(8)***[ 1.1.1 The interest of the lessee under the Unit Lease (as defined
in the Declaration) in and to (a) that certain commercial leasehold condominium
unit (the "Unit") in the condominium known as The New York Times Building
Condominium (the "Condominium") and more particularly described on Schedule "A"
annexed hereto, and (b) an undivided [ _____%] interest in the common elements
of the Condominium as described in the Condominium's Declaration of Condominium
dated ____________ and recorded in the New York County Office of the Register of
the City of New York on ____________ in Reel _____, Page ______ (the
"Declaration"). ]***
1.1.2 All of Seller's right, title and interest in and to the
fixtures, equipment, machinery and (if any) personal property used in connection
with the operation of the Unit and
----------
(7) Purchaser to be designated by NYTC. If Purchaser or guarantor is not a
creditworthy entity (i.e., rating of "A Minus" or better as determined by the
Rating Agency, as defined in the Declaration), Agreement to provide for deposit
of $1,000,000 per Unit being purchased hereunder and such deposit shall
constitute liquidated damages in the event of Purchaser default.
(8) To be modified to include more than one Unit if applicable.
J-1
not being the property of any space tenant or occupant of the Unit or any
manager or leasing agent.
***[ 1.1.3 All of Seller's right, title and interest in and to all space leases
now or hereafter covering space situate at or within the Unit, together with all
amendments thereto, guaranties thereof and assignments thereof or subleases
thereunder (the "Leases") and all security deposits paid or deposited by space
tenants or occupants (individually, a "Tenant" and collectively, the "Tenants")
in respect of the Leases, applicable to Tenants in possession under the Leases
at "Closing" (as such term is defined in Section 11.1 hereof), which shall not
have been applied theretofore in accordance with the provisions of such
Leases.]***(9)
ARTICLE 2
PURCHASE PRICE
2.1 PURCHASE PRICE. The purchase price for the Property to be paid by
Purchaser to Seller shall be the Fair Market Value for the Property determined
in accordance with Article XX, Section 8(a) of the Declaration.
2.2 PAYMENT OF PURCHASE PRICE. Purchaser agrees to pay the Purchase Price
to Seller at the Closing, at Purchaser's election, either by (i) wire transfer
of immediate clearance "Federal Reserve Funds" (as such term is hereinafter
defined), and Seller shall give Purchaser written notice containing wiring
instructions for such purpose at least three (3) "Business Days" prior to the
"Closing Date" (as such terms are defined in Article 15 hereof), or (ii) one (1)
or more cashier's or bank checks payable to the direct order of Seller or as
Seller may direct (and not in any manner an endorsed or assigned check) drawn
upon a bank which is a member of The New York Clearing House Association (or any
successor organization thereto). Seller may direct as aforesaid that the
Purchase Price be paid to not more than three (3) designated recipients. As used
herein, the term "Federal Reserve Funds" shall be deemed to mean the receipt by
a bank or banks in the continental United States designated by Seller of U.S.
dollars in form that does not require further clearance, and may be applied at
the direction of Seller by such recipient bank or banks on the day of receipt of
advice that such funds have been wire transferred.
2.3 DETERMINATION OF PURCHASE PRICE. In the event that, as of the date set
forth in Section 15.1 hereof for the Closing Date, the Fair Market Value of the
Property has not been determined pursuant to Article XX, Section 8(a) of the
Declaration, at Purchaser's election either (a) the Closing Date shall be
adjourned to the date which is ten (10) Business Days following the final
determination of the Fair Market Value of the Property (or if such day is not a
Business Day, the next succeeding Business Day), or (b) the Closing shall occur
on such date, Purchaser shall pay to Seller at Closing the amount determined by
the arbitrator appointed by Purchaser pursuant to Article XX, Section 8(a) of
the Declaration to be the Fair Market Value of the Property, and within ten (10)
Business Days following the final determination of the Fair Market Value of the
Property, Purchaser shall pay to Seller the amount, if any, by which the Fair
Market
----------
(9) To be deleted if pursuant to applicable option provision of
Declaration, Unit is to be delivered vacant and free and clear of tenancies at
Closing.
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Value of the Property as finally determined exceeds the amount paid to Seller at
Closing, together with interest on such excess amount at a rate equal to two
percent (2%) above the so-called annual "Base Rate" of interest established and
approved by Citibank, NA., New York, New York, from time to time, as its
interest rate charged for unsecured loans to its corporate customers.
***[ 2.4 DEPOSIT. Purchaser has deposited in escrow with the Title Company
pursuant to separate escrow agreement dated of even date herewith between
Seller, Purchaser and the Title Company, a deposit against the Purchase Price in
the amount of $________. The Deposit shall be held by the Title Company on an
interest bearing basis, and the interest earned thereon while in escrow shall be
(i) paid to Purchaser upon the closing of the transaction contemplated hereby or
within five (5) Business Days following termination of this Agreement in the
event this Agreement is terminated for any reason other than the default of
Purchaser hereunder, or (ii) paid to Seller in the event this Agreement is
terminated by reason of the default of Purchaser hereunder.]***(10)
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS OF SELLER. Seller hereby represents and warrants to
Purchaser that the following facts are true and correct on the date hereof and
shall be true and correct as of the Closing Date:
(11)***[3 1.1 SPACE LEASES. (a) The only Leases as of the date
hereof are those listed on Schedule "B" annexed hereto (the "Schedule of
Leases"). A copy of each of the Leases
----------
(10) To be deleted if Purchaser or guarantor is a creditworthy entity
(i.e., rating of "A Minus" or better as determined by the Rating Agency, as
defined in the Declaration
(11) Sections 3.1.1 through 3.1.4 to be deleted if pursuant to applicable
option provision of Declaration, Unit is to be delivered vacant and free and
clear of tenancies at Closing, and the following inserted:
"3.1.1 VACANT POSSESSION. The terms of any existing leases, subleases,
licenses or other agreements for the use and occupancy of the Unit expire
on or before the Closing Date and are not subject to extension or renewal
by the tenant, subtenant, licensee or occupant thereunder. Possession of
the Unit shall be delivered to Purchaser at Closing vacant and free and
clear of all leases, tenancies, subtenancies, licenses or other rights to
use or occupy the Unit. In the event that, as of the Closing Date, any
tenant, subtenant, licensee or occupant is holding over in the Unit, then
Seller shall use its best efforts, including the immediate commencement
and diligent prosecution of holdover proceedings, to obtain vacant
possession of the Unit as expeditiously as possible, and Purchaser shall
have the right, at Purchaser's sole discretion, either (i) to postpone the
Closing until such time as Seller can deliver possession vacant and free
and clear of all leases, tenancies, subtenancies, licenses or other rights
to use or occupy the Unit, or (ii) to Close on the scheduled Closing Date
notwithstanding such holding over
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set forth on Schedule "B" has been reviewed by Purchaser and/or its counsel and
delivered by Seller to Purchaser simultaneously herewith in velobound binders
(the "Lease Binders") and initialed by Seller and Purchaser and/or their
respective counsel. Except as set forth on Schedule "B", there are no written
amendments to the Leases. Seller has not granted to any Tenant an option to
purchase the Property. Each of the Leases is the legal, valid and binding
obligation of Seller and the Tenant thereunder and is in full force and effect
as of the date hereof. Except as set forth on Schedule "B", Seller has not given
to the Tenant under any Lease any written notice of default which remains
uncured as of the date hereof. Except as set forth on Schedule "B", Seller has
not received from the Tenant under any Lease any written notice of default which
remains uncured as of the date hereof.
3.1.2. RENT ROLL. The Schedule of Leases and the rent roll attached
hereto as Schedule "C" (the "Rent Roll") contain a list of:
(x) all Tenants as of the date hereof;
(y) the commencement and expiration dates of the current term of
each Lease at such Property; and
(z) the fixed rent, escalation rent and additional rent for
electricity being billed to Tenants.
The information contained on the Schedule of Leases and each Rent Roll is true
and correct in all material respects. With respect to any monetary amounts
described on the Rent Roll, the term "true and correct in all material respects"
shall be construed to mean that, to the extent the Rent Roll overstates or
understates the actual amounts of such items, the net adverse economic effect on
Purchaser of such understatements or overstatements in the aggregate does not
exceed an amount equal to two (2%) percent of the Purchase Price.
3.1.3 BROKERAGE AGREEMENTS. The only written agreements for the
payment of leasing commissions in connection with the Leases as of the date
hereof are those listed on Schedule "D-1" annexed hereto (collectively, the
"Brokerage Agreements"). A copy of each existing Brokerage Agreement has been
delivered by Seller to Purchaser simultaneously
--------------------------------------------------------------------------------
by such tenant, subtenant, licensee or occupant, in which case Seller
shall assign to Purchaser at Closing all rights and remedies which Seller
may have against such holdover tenant, subtenant, licensee or occupant, as
the case may be. If Purchaser elects to postpone the Closing pursuant to
clause (i) of the preceding sentence and Seller has not obtained vacant
possession of the Unit within 180 days after the originally scheduled
Closing Date, Purchaser shall have the right to terminate this Agreement
***[and receive a refund of the Deposit together with all interest accrued
thereon within five (5) Business Days following such termination]***, and
upon such termination this Agreement shall be null and void (other than
those provisions hereof which expressly survive a termination of this
Agreement), and the parties hereto shall be relieved of all further
obligations and liability under this Agreement."
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herewith in velobound binders (the "Brokerage Agreement Binders") and initialed
by Seller and Purchaser and/or their respective counsel. Schedule "D-2" annexed
hereto sets forth a list of all commissions payable under the Brokerage
Agreements prior to the date of this Agreement which have not been paid.
3.1.4 INCOMPLETE LANDLORD'S WORK AND UNPAID WORK ALLOWANCES.
Schedule "E-1" annexed hereto sets forth a list of items of construction or
leasehold improvement work remaining to be performed by Seller with respect to
the occupancy of any Tenant pursuant to the provisions of such Tenant's Lease.
Schedule "E-2" annexed hereto sets forth a list of remaining contributions to be
made by Seller with respect to construction or leasehold improvement work being
performed or which had been performed or remains to be performed by any Tenant
for its occupancy pursuant to the provisions of such Tenant's Lease. ]***
3.1.5 EMPLOYEES. There are no separate employees of Seller [or
Seller's managing agent] engaged in the operation or maintenance of the Unit (as
contrasted with employees of the Board of Managers of the Condominium or the
managing agent of the Condominium employed in connection with the maintenance of
all Units of the Condominium generally and/or the common elements of the
Condominium), or, in the event there are any such employees, Seller shall
terminate such employees as of the Closing Date and shall be responsible for
(and shall indemnify, defend, and hold harmless Purchaser against) all severance
pay and other costs associated with terminating such employees.
3.1.6 SERVICE AND MAINTENANCE AGREEMENTS. There are no service or
maintenance agreements affecting the Unit (as contrasted with service and
maintenance agreements entered into by the Board of Managers of the Condominium
and affecting all Units of the Condominium generally) which will be binding upon
Purchaser from and after the Closing Date ***[other than those set forth on
Schedule __ annexed hereto]***, and any such service or maintenance agreements
affecting the Unit as of the date hereof ***[other than those set forth on
Schedule __ annexed hereto]*** shall be terminated as of the Closing Date
without payment by or penalty to Purchaser. ***[The service and maintenance
agreements set forth on Schedule__ annexed hereto shall be assigned to and
assumed by Purchaser.]***(12)
3.1.7 NO FOREIGN PERSON. Seller is not a "foreign person" as such
term is defined in Section 1445 of the Internal Revenue Code of 1986, as amended
(the "Code"), nor will the sale transaction herein contemplated be subject to
Section 897 of the Code or to the withholding requirements of Section 1445 of
the Code.
3.1.8 LITIGATION. Except as set forth on Schedule "H" annexed
hereto, Seller has not received any written notice of any pending legal action,
suit, arbitration, order or judgment, government investigation or proceeding, in
any case affecting the Unit or Seller or the condominium regime which may result
in a lien being placed upon the Unit or which would preclude or prevent Seller
from performing its obligations under this Agreement.
----------
(12) Bracketed provisions to be included if Purchaser elects to assume any
such service and maintenance agreements with respect to the Unit.
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3.1.9 UNIT LEASE. A copy of the "Unit Lease" (as such term is
defined in the Declaration) demising the Property has been delivered by Seller
to Purchaser simultaneously herewith and initialed by Seller and Purchaser
and/or their respective counsel. The Unit Lease is the legal, valid and binding
obligation of the lessor thereunder and Seller, as lessee thereunder, and is in
full force and effect as of the date hereof. Except as set forth on Schedule "I"
annexed hereto, Seller has not given to the lessor under the Unit Lease any
written notice of default which remains uncured as of the date hereof, and
Seller has not received from the lessor under the Unit Lease any written notice
of default which remains uncured as of the date hereof
3.1.10 ENVIRONMENTAL CONDITION OF THE UNIT. To the best of Seller's
knowledge, the Unit does not contain any "Hazardous Materials" (as such term is
hereinafter defined). Seller further represents and warrants that neither Seller
nor, to the best of Seller's knowledge, any prior owner of the Unit or any
Tenant or prior Tenant or prior occupant of the Unit have (i) used, installed or
disposed of any Hazardous Materials on, from or affecting the Unit; or (ii)
received any notice from any governmental authority or any tenant with regard to
Hazardous Materials on, from or affecting the Unit. For purposes of this
Section, "Hazardous Materials" shall include, without limitation, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances, or related materials, asbestos or any material
containing asbestos, or any other substance or material as defined by any
Federal, state or local environmental law, ordinance, rule, or regulation
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, ET
SEQ.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
Sections 1801, ET SEQ.), the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Sections 9601 ET SEQ.), and in the regulations adopted and
publications promulgated pursuant thereto. So long as Seller is not a Public
Party (as defined in the Seller's Unit Lease, Seller shall indemnify and hold
Purchaser harmless from and against any losses, expenses, liabilities and claims
arising from any breach or default by Seller of its representations or
obligations under this Section 3.1.10 including, without limitation reasonable
attorneys' fees.
3.1.11 VIOLATIONS. Except as set forth on Schedule "J" annexed
hereto, Seller has not received any written notice from any governmental
authority that the Unit or any improvements contained therein fail to comply
with applicable Legal Requirements.
3.1.12 SURVIVAL. The representations and warranties of Seller set
forth in this Section 3.1 shall survive the Closing for a period of nine (9)
months.
3.2 AUTHORITY AND BINDING EFFECT; NO BREACH OR PROHIBITION. Each party
hereto represents to the other that each person or entity executing this
Agreement by or on behalf of the representing party has the authority to act on
its behalf and to bind it, and that each person or entity executing any closing
documents by or on its behalf, has been or will be duly authorized to act on its
behalf, and that the performance of this Agreement will not be in violation of
its by-laws, charter, operating or partnership agreement, or any law, ordinance,
rule, regulation or order of any governmental body having jurisdiction, or the
provisions of any agreements to which it is a party or by the terms of which it
is bound, and, at the Closing, each party shall furnish to the other parties and
to the "Title Company" (as such term is defined in Section 5.1 hereof),
reasonably satisfactory evidence of such authority and approval. This Section
shall survive the Closing.
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3.3 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. Purchaser acknowledges
that except as expressly provided herein, neither Seller nor anyone acting for
or on behalf of Seller, has made any representation, warranty, or promise to
Purchaser concerning: (a) the physical aspect and condition of any portion of
the Property; (b) the feasibility or desirability of the purchase of the
Property; (c) the market status, projected income from or development expenses
of the Property; or (d) any other matter whatsoever with respect to the Property
(except as contained herein), express or implied, including, by way of
description but not limitation, those of fitness for a particular purpose,
tenantability, habitability and use; and that all matters concerning the
Property are to be independently verified by Purchaser. Purchaser acknowledges
that, except as otherwise expressly provided in this Agreement, it is purchasing
the Property in its currently existing physical condition and state of repair.
ARTICLE 4
STATE OF TITLE OF PROPERTY
4.1 PERMITTED ENCUMBRANCES. Purchaser shall accept title to the Property
subject only to the following (the "Permitted Encumbrances"):
4.1.1 Any and all present and future zoning restrictions,
regulations, requirements, laws, ordinances, resolutions and orders of any city,
town or village in which the Property lies, and of all boards, bureaus,
commissions, departments and bodies of any municipal, county, state or federal
sovereign or other governmental authority now or hereafter having or acquiring
jurisdiction over the Property or the use and improvement thereof.
4.1.2 The state of facts which an accurate survey of the Property or
the land (the "Land") and/or building (the "Building") of which the Property
forms a part, or any portion thereof, would show, provided such other state of
facts does not materially adversely affect Purchaser's ability to use the
Unit(s) in question for its present uses.
(13)***[4.1.3 The Leases listed on Schedule "B" annexed hereto.]***
4.1.4 The Declaration, By-laws and Rules and Regulations of the
Condominium for the Property, the power of attorney required to be granted to
such Condominium's Board of Managers thereunder, and the floor plans for the
Condominium filed with the Real Property Assessment Department of the City of
New York, all as the same may have been or may hereafter be amended to the date
of Closing.
4.1.5. The [NYTC Unit Lease], amended as provided in Section 12.1.5
hereof.
4.1.6. The Ground Lease, as defined in the Declaration.
***[4.1.7 The covenants, restrictions, easements, and agreements of record
listed on Schedule "G" annexed hereto and any similar covenants, restrictions,
easements, and agreements
----------
(13) To be deleted if pursuant to applicable option provision of
Declaration, Unit is to be delivered vacant and free and clear of tenancies at
Closing.
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which The New York Times Company or any affiliate thereof has expressly agreed
to in writing prior to the Closing Date, but excluding in any event (i) any
mortgage, security agreement or other documents relating to financing against
the Property, or (ii) any lien for materials or labor furnished with respect to
the Property, or (iii) any lease, license agreement or other instrument creating
a tenancy or right of occupancy in the Property].]***(14)
4.1.8. Any easement over the Common Elements created by the
Condominium Board of Managers pursuant to its authority under Article XI,
Section 2(a) of the Declaration for the installation, maintenance and inspection
of lines and appurtenances for additional electric, transformer, amplifier, gas,
telephone, public or private water, sewer, drainage, and other utilities, and to
relocate any existing utility, sewer and drainage easements in any portion of
the Property.
4.1.9. Real estate taxes, PILOT, Theater Surcharge, all other
"Charges" under the [NYTC Unit Lease] (as defined therein), Business Improvement
District charges and like charges for the applicable fiscal period in which the
Closing occurs (subject to proration between the parties as provided in Article
11 hereof) and all fiscal periods thereafter.
ARTICLE 5
TITLE INSURANCE AND ABILITY OF SELLER TO CONVEY
5.1 TITLE REPORT. Purchaser agrees to make, promptly after the
signing hereof, application for a title insurance policy from, and (in
connection with the issuance of such title policy) to cause title to the
Property to be searched and examined by a reputable title insurance company
licensed in the State of New York to issue title insurance (the "Title Company")
and to deliver to Seller's attorneys, a copy of the Title Company's report, the
tax search, survey and survey readings, if any, as soon as they are received,
together with a written statement by Purchaser of all objections to title. In
the event Purchaser's written statement shall set forth objections to title
which Seller is unable to remedy prior to the Closing Date, Purchaser hereby
grants to Seller a reasonable adjournment of the Closing Date (not to exceed
thirty (30) days) during which xxxx Xxxxxx may attempt to remedy same.
5.2 TITLE OBJECTIONS. If there shall be any liens, charges,
easements, agreements of record, encumbrances or other objections to title,
other than Permitted Encumbrances (which Purchaser agrees to take subject to)
(the "Title Objections"), then Seller shall remove such Title Objections. If
Seller fails to remove any Title Objection in accordance with the provisions of
the immediately preceding sentence, Purchaser, nevertheless, may elect (at or
prior to the Closing) to consummate the transaction provided for herein subject
to any such Title Objection as may exist as of the Closing with a credit against
the Purchase Price payable at the Closing equal to the sum necessary to remove
such Title Objection(s). If Purchaser shall not so elect, Purchaser may
terminate this Agreement ***[ in which event Purchaser shall receive a refund of
the Deposit together with all interest accrued thereon within five (5) Business
Days following such
----------
(14) SCHEDULE G TO BE COMPLETED AT GROUND LEASE SIGNING WITH APPLICABLE
COVENANTS, RESTRICTIONS, EASEMENTS, AND AGREEMENTS OF RECORD PER OWNER'S TITLE
POLICY.
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termination]***, and upon such termination this Agreement shall be null and void
(other than those provisions hereof which expressly survive a termination of
this Agreement), and the parties hereto shall be relieved of all further
obligations and liability under this Agreement.
ARTICLE 6
CLOSING COSTS
6.1. PURCHASER'S OBLIGATIONS. Purchaser shall pay the costs of
examination of title and any leasehold policy of title insurance to be issued
insuring Purchaser's title to the Property, as well as all other title charges,
survey fees, and any recording charges incident to the recordation of the
"Memoranda" (as hereinafter defined).
6.2. (15)***[SELLERS OBLIGATIONS. Seller shall pay any transfer or
conveyance taxes in connection with the transfer of the Property, including
without limitation the following amounts:
(i) the amount imposed pursuant to Article 31 of the New York
State Tax Law (the "Tax Law"); and
(ii) the amount due in connection with the Real Property
Transfer Tax imposed by Title 11 of Chapter 21 of the Administrative
Code of the City of New York.]***
6.3. OTHER COSTS. All other closing costs shall be allocated to and paid
by Seller and Purchaser in accordance with the manner in which such costs are
customarily borne by such parties in sales of similar property in New York
County, State of New York; provided, however, that each party shall bear its own
attorneys' fees. Any dispute between Seller and Purchaser as to which party
customarily bears any such closing cost (other than any party's own attorney's
fees) may be submitted by any party for resolution to the president of the Real
Estate Board of New York, Inc., whose determination shall be binding upon the
parties, provided, however, that in no event shall the Closing Date be adjourned
by reason of the submission of any such dispute to the Real Estate Board of New
York, Inc.
ARTICLE 7
REAL ESTATE TAX PROTESTS
7.1 All real estate assessment protests and proceedings affecting the Unit
for the tax year prior to the tax year in which title closes, and all prior
years, if any, and, if the Closing occurs after the midpoint of the then current
tax year, the tax year in which the Closing occurs,
----------
(15) In case of right of first refusal where term sheet provided for
prospective purchaser to pay transfer taxes, to be revised to provide for
Purchaser to pay such taxes.
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will be prosecuted under the direction and control of Seller. All real estate
assessment protests and proceedings affecting the Unit for the tax year in which
title closes (if the Closing occurs on or before the midpoint of such real
estate tax fiscal year), and all subsequent years, will be prosecuted under the
direction and control of Purchaser, and any such protests and proceedings which
are pending on the Closing shall, at the option, of Purchaser, be either
withdrawn by Seller or assigned to Purchaser, and, if same are assigned to
Purchaser, Seller shall cause its counsel conducting such protests or
proceedings to transfer control of same to Purchaser's counsel, and, in such
instance, Seller shall be responsible for any fees or expenses of its counsel
incurred as of the Closing Date. In the event of any reduction in the assessed
valuation of the Property for any such fiscal year, the net amount of any tax
savings, shall (a) with respect to fiscal years ending prior to the Closing, be
payable to Seller; and (b) with respect to the fiscal year in which the Closing
shall occur, after deduction of expenses and attorneys' fees, be adjusted
between such Seller and Purchaser as of the "Adjustment Date" (as defined in
Section 11.1), in each instance net of sums due to tenants, if any, which sums
shall be paid to each such tenant entitled to same by the party receiving same.
The obligations of the parties under this Section 7.1 shall survive the
Closing.
ARTICLE 8
ACKNOWLEDGMENTS OF PURCHASER; CONDITION OF PROPERTY
8.1 ANALYSIS AND EVALUATION OF THE PROPERTY. Before entering into this
Agreement, Purchaser acknowledges that it has made its own analysis and
evaluation of the Property, the operation, the income potential, profits and
expenses thereof, its condition and all other matters affecting or relating to
the transaction underlying this Agreement as Purchaser deemed necessary,
including, without limitation, the layout, leases, square footage, rents,
income, expenses and operation of such Property. In entering into this
Agreement, Purchaser has not been induced by and has not relied upon any
representations, warranties, statements or covenants, express or implied, made
by Seller or any agent, employee or other representative of Seller, which are
not expressly set forth in this Agreement.
8.2 RESTORATION WORK. (a) On or before the Closing Date, Seller shall, at
Seller's sole cost and expense, perform the following work in and to the Unit
(collectively, "Seller's Restoration Work") (i) remove any internal staircases
(excluding base Building fire stairs), internal (as contrasted with
base-Building) elevators and escalators, atriums and other slab cuts (other than
slab cuts for base Building services) (collectively, "Slab Cut Improvements")
between the Unit and any other floors of the Building not currently owned or
occupied by (or currently being acquired or leased by) Purchaser (or an
affiliate of The New York Times Company) ("NYTC Floors"), and restore the
portions of the floor slab of the Unit affected by such Slab Cut Improvements to
substantially their original condition and level and ready for floor covering,
and (ii) disconnect or segregate any special services (e.g., any tenant's
supplemental HVAC system) (other than base Building services) which service both
the Unit and other space in the Building other than NYTC Floors. Purchaser may
waive the performance by Seller of any Sellers Restoration Work by written
notice to Seller given within ten (10) Business Days after the date of this
Agreement, in which event Seller shall not perform and shall have no
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obligation to Purchaser on account of, the Seller's Restoration Work so waived
by Purchaser. If and to the extent Seller's Restoration Work not so waived by
Purchaser is not complete as of the Closing Date, Purchaser shall receive a
credit against the Purchase Price for the estimated cost of completing such
Seller's Restoration Work as estimated by a reputable contractor designated by
Purchaser and approved by Seller, such approval not to be unreasonably withheld
or delayed. The provisions of this Section 8.2(a) shall not apply to any items
which would otherwise constitute Seller's Restoration Work but which are demised
to a Tenant pursuant to a Lease which Purchaser is obligated under this
Agreement to assume on the Closing Date.
(b) Seller has advised Purchaser that the following current or prior
tenants of the Unit have obligations under their leases to perform removal
and/or restoration work with respect to any existing leasehold improvements in
the Unit: [IDENTITY OF TENANT(S) AND NATURE OF REMOVAL/RESTORATION OBLIGATION TO
BE INSERTED PRIOR TO EXECUTION]. Promptly after the date hereof, Seller shall
notify such tenants of the foregoing removal/restoration obligations and shall
use commercially reasonable efforts to enforce such obligations. At Closing,
Seller shall assign to Purchaser all of Seller's rights and remedies against
such tenants with respect to such removal/restoration obligations. After
Closing, Seller shall cooperate with Purchaser to the extent reasonably
requested by Purchaser in connection with the enforcement of such rights and
remedies. The provisions of this Section 8.2(b) shall not apply to any portions
of the Property which are leased to a Tenant pursuant to a Lease which Purchaser
is obligated under this Agreement to assume on the Closing Date.
(c) The provisions of this Section 8.2 shall survive the Closing.
ARTICLE 9
OPERATIONS PRIOR TO CLOSING
9.1 CONTINUED OPERATIONS. Between the date of this Agreement and the
Closing, Seller shall continue to operate and maintain the Unit in a first-class
manner in accordance with the provisions of the Declaration and By-Laws, the
Unit Lease demising the Unit and any Leases affecting the Unit.
9.2 ACCESS TO THE PROPERTY. Seller agrees to afford Purchaser reasonable
access to the Property prior to the Closing, at reasonable times upon reasonable
notice and subject in any event to the rights of Tenants with respect to such
access.
9.3 NO LEASING. Seller agrees that between the date hereof and the
Closing, Seller shall not, without Purchaser's prior written consent in each
instance which may be withheld by Purchaser in its sole discretion:
9.3.1 Amend, modify or terminate any existing Lease;
9 3.2 Permit occupancy of, or enter into any new lease for, space in
the Unit which is vacant as of the date hereof, or which may hereafter become
vacant; or
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9.3.3 Apply or draw upon any security deposit under any Lease
9.4 TENANT ESTOPPEL CERTIFICATES. Reasonably promptly after the execution
of this Agreement, Seller shall send a written request to each Tenant at the
Property in accordance with such Tenant's Lease to furnish a tenant estoppel
statement substantially in the form such Tenant is obligated to furnish to the
landlord under its Lease, or if no such form is contained or specified in a
Tenant's Lease or if a Tenant's Lease provides that the Tenant shall make
additional statements beyond those specifically provided for in the Lease, in
such form as Purchaser may reasonably request, and Seller shall use reasonable
efforts to obtain such estoppel statements signed by each Tenant on or before
the Closing Date.
ARTICLE 10
CASUALTY AND EMINENT DOMAIN
10.1 CASUALTY AND RISK OF LOSS; CONDEMNATION. (a) If prior to the Closing
Date, all or any portion of the Unit shall be damaged by fire or other casualty,
or condemned or taken by eminent domain by any authority, then, subject to the
provisions of Section 10.1(b) hereof, (i) Seller shall deliver the Unit in its
then condition without abatement of the Purchase Price, in which event Purchaser
shall be entitled to the eminent domain award or insurance proceeds paid or
payable (other than to the Condominium) as a result of such loss or damage, if
any, (ii) Seller shall assign the same to Purchaser (without recourse to Seller)
at the Closing (including, without limitation, Seller's rights to receive any
distributions of insurance proceeds to the Board of Managers of the Condominium
to owners of condominium units at the Condominium), and (iii) Seller shall have
no further liability with respect to the damaged or condemned Units. Seller
agrees to maintain the same amount of insurance covering the Personal Property
at the Units, if any, as is in effect on the date hereof. Nothing herein shall
postpone the Closing, provided only that Purchaser may elect to terminate this
Agreement ***[in which event Purchaser shall receive a refund of the Deposit
together with all interest accrued thereon within five (5) Business Days
following such termination]*** if, in accordance with the by-laws of the
Condominiums, the Boards of Managers shall not be obligated, or shall otherwise
not elect, to repair the damage to the Unit caused by any fire or other
casualty. This provision shall supersede any statutory provisions applicable to
"risk of loss" for condemnation and/or casualty and is intended to be an express
provision to the contrary within the meaning of Section 5-1311 of the General
Obligations Law.
(b) Notwithstanding the provisions of Section 10.1(a) hereof to the
contrary, if the Unit is damaged by fire or other casualty and the reasonably
estimated cost (as determined by a reputable contractor designated by Purchaser
and approved by Seller, such approval not to be unreasonably withheld or
delayed) of repairing such damage shall exceed $1,000,000, then Purchaser shall
have the right, exercisable by Purchaser giving written notice to Seller thereof
within ten (10) days after delivery to Purchaser of such reputable contractor's
written estimate of the repair cost, to terminate this Agreement***[, in which
event Purchaser shall receive a refund of the Deposit together with all interest
accrued thereon within five (5) Business Days following such termination]***.
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ARTICLE 11
CLOSING ADJUSTMENTS
11.1 ADJUSTMENTS AND PRORATIONS. The following matters and items shall be
apportioned or adjusted between the parties hereto at the closing of title to
the Property pursuant to this Agreement (the "Closing"), as of 12:01 A.M. of the
day of the Closing (the "Adjustment Date"):
(16)***[11.1.1 FIXED RENTS.
(a) Fixed rents ("Fixed Rents") paid or payable by Tenants under the
Leases in connection with their occupancy shall be adjusted and prorated on an
if, as and when collected basis. Any Fixed Rents collected by Purchaser or
Seller after the Closing from any Tenant who owes Fixed Rents for periods prior
to the Closing, shall be applied: (i) first, in payment of Fixed Rents owed by
such Tenant for the calendar month in which the Closing Date occurs; (ii)
second, in payment of Fixed Rents owed by such Tenant for the period (if any)
after the calendar month in which the Closing Date occurs through the end of the
calendar month in which such amount is collected; and (iii) third, after Fixed
Rents for all current periods have been paid in full, in payment of Fixed Rents
owed by such Tenant for the period prior to the calendar month preceding the
calendar month in which the Closing Date occurs. Each such amount, less any
costs of collection (including reasonable attorneys' fees) reasonably allocable
thereto, shall be adjusted and prorated as provided above, and the party who
receives such amount shall promptly pay over to the other party the portion
thereof to which it is so entitled. In furtherance and not in limitation of the
preceding sentence, with respect to any Tenant which has paid all Fixed Rents
for periods through the Closing, if, prior to the Closing, Seller shall receive
any prepaid Fixed Rents from a Tenant attributable to a period following the
Closing, at the Closing, Seller shall pay over to Purchaser the amount of such
prepaid Fixed Rents.
(b) Purchaser shall xxxx Tenants who owe Fixed Rents for periods
prior to the Closing on a monthly basis for a period of three (3) consecutive
months following the Closing Date. If Purchaser is unable to collect such past
due Fixed Rents, Seller shall have the right, upon prior written notice to
Purchaser, to pursue such Tenants to collect Fixed Rent delinquencies
(including, without limitation, the prosecution of one or more lawsuits), but
Seller shall not be entitled to evict (by summary proceedings or otherwise) any
such Tenants. Any payment by a Tenant in an amount less than the full amount of
Fixed Rents and "Overage Rent" (as such term is defined in Section 11.1.2(a))
then due and owing by such Tenant, shall be applied first to Fixed Rents (in the
order of priority as to time periods as is set forth in Section 11.1.1(a)
above) to the extent of all such Fixed Rents then due and owing by such Tenant,
and thereafter to Overage Rent (in the order of priority as to time periods as
is set forth in Section 11.1.2).
11.1.2 OVERAGE RENT.
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(16) To be deleted if pursuant to applicable option provision of
Declaration, Unit is to be delivered vacant and free and clear of tenancies at
Closing.
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(a) Any of the following charges and/or rents provided for by any
Lease: (i) the payment of additional rent based upon a percentage of the
Tenant's business during a specified annual or other period (sometimes referred
to as "percentage rent"), (ii) common area maintenance or "CAM" charges, (iii)
"escalation rent" or additional rent based upon increases in real estate taxes,
operating expenses, labor costs, cost of living, xxxxxx'x wages, or other index
including the consumer price index or otherwise, or (iv) any other items of
additional rent, E.G., charges for electricity, water, cleaning, overtime
services, sundries and/or miscellaneous charges, shall be adjusted and prorated
on an if, as and when collected basis (such percentage rent, CAM charges,
escalation rent and other additional rent being collectively called "Overage
Rent").
(b) (i) Purchaser agrees that as to any Overage Rent for accounting
periods prior to the Closing that are to be paid after the Closing, to pay the
entire amount over to Seller upon receipt thereof, less any costs of collection
(including reasonable attorneys' fees) reasonably allocable thereto. Purchaser
agrees that it will (i) promptly render bills for any such Overage Rent, (ii)
xxxx Tenants such Overage Rent on a monthly basis for a period of three (3)
consecutive months thereafter, and (iii) use commercially reasonable efforts to
collect such Overage Rent; PROVIDED, HOWEVER, that Purchaser shall have no
obligation to commence any actions or proceedings to collect any such Overage
Rent.
(ii) Notwithstanding the foregoing, if Purchaser is unable to
collect such Overage Rent, Seller shall have the right, upon prior written
notice to Purchaser, to pursue Tenants to collect such delinquencies (including,
without limitation, the prosecution of one or more lawsuits), but Seller shall
not be entitled to evict (by summary proceedings or otherwise) any such Tenants.
Seller shall furnish to Purchaser all information relating to the period prior
to the Closing that is reasonably necessary for the billing of such Overage
Rent, and Purchaser will deliver to Seller, concurrently with the delivery to
Tenants, copies of all statements relating to Overage Rent for a period prior to
the Closing. Purchaser shall xxxx Tenants for Overage Rent for accounting
periods prior to the Closing in accordance with and on the basis of such
information furnished by Seller.
(c) Overage Rent for an accounting period in which the Closing Date
occurs shall be apportioned between Seller and Purchaser as of the Adjustment
Date, with Seller receiving the proportion of such Overage Rent less a like
portion of any costs and expenses (including reasonable attorneys' fees)
incurred in the collection of such Overage Rent that the portion of such
accounting period prior to the Closing Date bears to such entire accounting
period, and Purchaser receiving the proportion of such Overage Rent less a like
portion of any costs and expenses (including reasonable attorneys' fees)
incurred in the collection of such Overage Rent that the portion of such
accounting period from and after the Closing Date bears to such entire
accounting period. If, prior to the Closing, Seller shall receive any
installments of Overage Rent attributable to Overage Rent for periods from and
after the Closing Date, such sum shall be apportioned at the Closing. If, after
the Closing, Purchaser shall receive any installments of Overage Rent
attributable to Overage Rent for periods prior to the Closing, such sum less any
costs and expenses (including reasonable attorneys' fees) incurred by Purchaser
in the collection of such Overage Rent shall be paid by Purchaser to Seller
promptly after Purchaser receives payment thereof.
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(d) Any payment by a Tenant on account of Overage Rent (to the
extent not applied against Fixed Rents due and owing by such Tenant in
accordance with Section 11.1.1 (b) hereof) shall be applied to Overage Rent then
due in the following order of priority: (i) first, in payment of Overage Rent
for the accounting period in which the Closing Date occurs; (ii) second, in
payment of Overage Rent for all accounting periods immediately succeeding the
accounting period in which the Closing Date occurs, and (iv) thereafter, in the
chronological order in which such payments are due for each such accounting
period pursuant to the applicable Lease.
(e) To the extent that any portion of Overage Rent is required to be
paid monthly by Tenants, on account of estimated amounts for any calendar year
(or, if applicable, any Lease year or any other applicable accounting period),
and at the end of such calendar year (or Lease year or other applicable
accounting period, as the case may be), such estimated amounts are to be
recalculated based upon the actual expenses, taxes and other relevant factors
for that calendar year, Lease year or other applicable accounting period, with
the appropriate adjustments being made with such Tenants, then such portion of
the Overage Rent shall be prorated between Seller and Purchaser at the Closing
based on such estimated payments (I.E., with Seller entitled to retain all
monthly or other periodic installments of such amounts paid with respect to
periods prior to the calendar month or other applicable installment period in
which the Closing occurs; Seller to pay to Purchaser at the Closing all monthly
or other periodic installments of such amounts theretofore received by Seller
with respect to periods following the calendar month or other applicable
installment period in which the Closing occurs, and Seller and Purchaser to
apportion as of the Closing Date all monthly or other periodic installments of
such amounts with respect to the calendar month or other applicable installment
period in which the Closing occurs).
At the time(s) of final calculation and collection from (or
refund to) each Tenant of the amounts in reconciliation of actual Overage Rent
for a period for which estimated amounts paid by such Tenant have been prorated,
there shall be a re-proration between Seller and Purchaser. If, with respect to
any Tenant, the recalculated Overage Rent exceeds the estimated amount paid by
such Tenant, (i) the entire excess shall be paid by Purchaser to Seller, if the
accounting period for which such recalculation was made expired prior to the
Closing, and (ii) such excess shall be apportioned between Seller and Purchaser
as of the Closing Date (on the basis described in the first sentence of Section
11.1.2(c) hereof), if the Closing occurred during the accounting period for
which such recalculation was made, with Purchaser paying to Seller the portion
of such excess which Seller are so entitled to receive. If, with respect to any
Tenant, the recalculated Overage Rent is less than the estimated amount paid by
such Tenant, (1) the entire shortfall shall be paid by Seller to Purchaser (or,
at Seller's option, directly to the Tenant in question), if the accounting
period for which such recalculation was made expired prior to the Closing, and
(2) such shortfall shall be apportioned between Seller and Purchaser as of the
Closing Date (on the basis described in the first sentence of Section 11.1.2(c)
hereof), if the Closing occurred during the accounting period for which such
recalculation was made, with Seller paying to Purchaser (or, at Seller's option,
directly to the Tenant in question) the portion of such shortfall so allocable
to Seller.]***
11.1.3 TAXES AND ASSESSMENTS. Real estate taxes, assessments, PILOT,
Business Improvement District charges and like charges, ad valorem taxes and
personal property taxes, if
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any, on the basis of the fiscal year for which assessed. Any special assessments
affecting the Unit as of the date of Closing Date shall be paid by Seller,
whether or not any installments thereof are or may be payable after the Closing
Date. If the Closing shall occur before the tax rate or assessment is fixed, the
apportionment of such real estate taxes and personal property taxes, if any,
shall be upon the basis of the tax rate for the immediately preceding year
applied to the latest assessed valuation; however, adjustment will be made upon
the actual tax amount, when determined. Any discount received for early payment
shall be for the benefit of Seller, and any interest or penalty assessed for
late payment, shall be borne by Seller.
11.1.4 DEPOSITS. Tax and utility company deposits, or deposits with
any supplier of goods, if any, shall be and remain the Property of Seller, and
Seller shall obtain refunds of the deposits directly from the taxing authority
or utility company, as the case may be.
11.1.5 WATER AND SEWER CHARGES. Water charges and sewer rents on the
basis of the fiscal year, but if there are water meters on the Property, Seller,
to the extent obtainable, shall supply to Purchaser a water meter reading
current through the Adjustment Date, or if not feasible to so read, to a date
not more than thirty (30) days prior to the Adjustment Date, and the unfixed
meter charges based thereon for the intervening period shall be apportioned on
the basis of such last meter reading. Upon the taking of a subsequent actual
water meter reading, such apportionment shall be readjusted and Seller or
Purchaser, as the case may be, will promptly deliver to the other the amount
determined to be due upon such readjustment. If Seller is unable to furnish such
prior meter reading, any reading subsequent to the Closing will be apportioned
on a per diem basis from the date of such reading immediately prior thereto, and
Seller shall pay the proportionate charges due up to the date of Closing.
11.1.6 LICENSE FEES. Amounts paid or payable with respect to
assignable licenses and permits, if any, affecting the Unit.
11.1.7 UTILITIES. Utility charges, including, but not limited to,
electricity, gas, steam, telephone and other utilities, all prorated based upon
the most current xxxx unless actual readings are obtained as of the Adjustment
Date, in which case such actual readings shall govern, and each party shall pay
the amount billed to it, respectively.
(17)***[11.1.8 TENANT SECURITY DEPOSITS. Security deposits of
Tenants (other than those which are marketable securities, letters of credit, or
other non-cash items) shall be credited to Purchaser by Seller retaining all
rights in the bank accounts and crediting to Purchaser against the Purchase
Price the amount of the security deposits to be delivered pursuant to this
Agreement, together with all accrued interest thereon. There shall be maintained
or credited to Seller all interest earned or accrued to the Adjustment Date,
less such portion of the interest to which the respective Tenant would be
entitled pursuant to its Lease or by law. Security deposits held in the form of
marketable securities shall be assigned and delivered to Purchaser at Closing,
with any interest thereon through the Adjustment Date credited to Seller, less
such portion to which the Tenant would be entitled. Security deposits held in
the form of letters of credit shall
----------
(17) To be deleted if pursuant to applicable option provision of
Declaration, Unit is to be delivered vacant and free and clear of tenancies at
Closing.
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be assigned and delivered to Purchaser in Purchaser's name at Closing with all
necessary consents and transfer documents required by the issuer thereof duly
executed by all necessary parties.
11.1.9 TENANT IMPROVEMENT WORK AT LANDLORD'S COST. Purchaser shall
receive a credit against the Purchase Price for the cost of any tenant
improvement work performed or to be performed to leased space to be paid at the
landlord's cost pursuant to any Lease to the extent same has not been paid for
by Seller as of the Closing Date. The amount of such credit shall be the
estimated cost of completing such tenant improvement work as estimated by a
reputable contractor designated by Purchaser and approved by Seller, such
approval not to be unreasonably withheld or delayed.
11.1.10 COSTS OF WORK TO BE PAID OR REIMBURSED TO TENANTS. Purchaser
shall receive a credit against the Purchase Price for the cost of any work
performed or to be performed in the Unit attributable to leased space to be
either paid or reimbursed to Tenants by the landlord pursuant to any Lease to
the extent same has not been paid or reimbursed by Seller as of the Closing
Date.
11.1.11 LEASING COMMISSIONS. Purchaser shall receive a credit
against the Purchase Price for any brokerage and leasing commissions incurred in
connection with the leasing of space in the Unit to the extent same have not
been paid by Seller as of the Closing Date. To the extent not so paid to
Purchaser, Seller shall indemnify, defend and hold Purchaser harmless from and
against any costs, losses, damages, expenses or liability for any such leasing
or brokerage commissions.]***
11.1.12 CONDOMINIUM COMMON CHARGES AND ASSESSMENTS. All common
charges and other amounts paid or payable to the Condominium with respect to the
Unit (including, without limitation, any payments made for insurance, utilities
or services) shall be prorated over the period to which same relate; provided,
however, that any special assessments imposed with respect to the Unit prior to
the date of this Agreement shall be paid for in full by Seller on or before the
Closing Date, whether or not any installments thereof are or may be payable
after the Closing Date.
11.1.13 AMOUNTS PAYABLE UNDER THE UNIT LEASE. The Administrative Fee
payable with respect to the Unit for the calendar year in which the Closing
occurs shall be apportioned between the parties as of the Adjustment Date. The
Theater Surcharge payable with respect to the Unit for the calendar year in
which the Closing occurs shall be apportioned between the parties as of the
Adjustment Date on the basis of the number of days in such calendar year for
which Theater Surcharge is payable with respect to the Unit by reason of (i) the
occupancy of the Unit by Purchaser or anyone acting under or through Purchaser
from and after the Closing Date, and (ii) the occupancy of the Unit by Seller or
anyone acting under or through Seller prior to the Closing Date. Except as
provided in Section 11.1.3 hereof with respect to PILOT and except as provided
in this Section 11.1.13, all rent, additional rent, and other charges which have
accrued under the Unit Lease with respect to the Unit as of the Closing Date,
including without limitation, PILOMRT and PILOST, shall be the sole
responsibility of Seller, and Seller shall furnish evidence reasonably
satisfactory to Purchaser at Closing that all such rent, additional rent, and
other charges have been paid in full. Seller shall indemnify, defend and hold
harmless
J-17
Purchaser from and against all claims, costs, losses, damages and expenses
resulting from Seller's failure to pay any such rent, additional rent, and other
charges when due.
11.1.14 EXCESS SITE ACQUISITION COSTS. All Excess Site Acquisition
Costs payable (or for which a credit is permitted) with respect to the Unit with
respect to all periods from and after the Closing Date shall be for the account
of Purchaser.
11.1.15 SURVIVAL. The provisions of this Section 11.1 shall survive
the Closing.
11.2 DETERMINATION OF CLOSING ADJUSTMENTS. The parties hereto agree to
make a good faith effort to determine the adjustments and prorations to be made
at Closing, pursuant to this Article, at least three (3) Business Days prior to
the Closing Date.
11.3 NET APPORTIONMENTS AND ADJUSTMENTS.
11.3.1 DUE SELLER. In the event the net apportionments and
adjustments as provided in Section 11.1 result in a payment due to Seller, then
such payment shall be made at Closing in the manner set forth in Section 2.2. In
the event that despite Purchaser's good faith efforts, the parties hereto are
unable to determine the amount of the adjustments to be paid to Seller at
Closing, if any, on or before the date which is three (3) Business Days prior to
the Closing Date, such amount may be paid by Purchaser to Seller at the Closing
by cashier's or bank check, or by a certified check of Purchaser drawn upon a
bank which is a member of The New York Clearing House Association (or any
successor organization thereto).
11.3.2 DUE PURCHASER. In the event the net apportionments and
adjustments as provided in Section 11.1 result in a payment due Purchaser, then
such payment shall be made at Closing by way of a credit against the Purchase
Price.
11.4 OTHER. Except as otherwise provided in this Agreement, the customs
regarding title closings, as recommended by The Real Estate Board of New York,
Inc., shall apply to all apportionments.
ARTICLE 12
CLOSING DOCUMENTS; OBLIGATIONS
OF PURCHASER AND SELLER AT CLOSING
12.1 SELLER'S OBLIGATIONS AT CLOSING. On the Closing Date, Seller shall
deliver or cause to be delivered to Purchaser the following:
12.1.1 Intentionally Omitted.
12.1.2 A Xxxx of Sale in the form annexed hereto as Exhibit 2, duly
executed by Seller.
12.1.3 A statement by the Board of Managers of the Condominium that
the common charges and any assessments then due and payable to the Condominium
have been paid to the date of the Closing;
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12.1.4 A modification agreement with respect to Seller's Unit Lease
in form reasonably satisfactory to Seller and Purchaser, duly executed by the
lessor thereunder and by Seller, providing for the termination thereof with
respect to the Property as of 11:59 p.m. on the day immediately preceding the
Closing Date, and reflecting the apportionments provided for in Sections 11.1.13
and 11.1.14 hereof.
12.1.5. A memorandum of the modification agreement provided for in
Section 12.1.4.
12.1.6 An estoppel certificate from the lessor under Seller's Unit
Lease in the form required to be delivered thereunder.
(18)***[12.l.7 A letter to each Tenant advising of the change of
ownership of the Property in accordance with General Obligations Law Section
7-105.
12.1.8 An Assignment and Assumption of Landlord's Interest in
Leases, in the form annexed hereto as Exhibit 4.]***
12.1.9 All records within Seller's (or its affiliate's or agent's)
possession reasonably required for the ownership and/or continued operation of
its Property, including but not limited to, service contracts, plans, surveys,
Leases, lease files, licenses, permits, warranties, and guaranties.
12.1.10 An Assignment of Licenses, Permits, Warranties and
Guarantees, in the form annexed hereto as Exhibit 5.
12.1.11 All keys, combinations, codes and electronic cards for any
locks in the Unit which are in Seller's possession.
12.1.12 A duly executed letter agreement by which Seller and
Purchaser agree to correct any errors in prorations as soon after the Closing as
amounts are finally determined, in the form annexed hereto as Exhibit 6 (the
"Post-Closing Adjustment Letter").
12.1.13 Evidence reasonably acceptable to Purchaser and the Title
Company authorizing the consummation by Seller of the transaction contemplated
by this Agreement, and the execution and delivery of documents on behalf of
Seller.
12.1.14 The certificate with respect to FIRPTA compliance in the
form of Exhibit 7 annexed hereto.
12.1.15 The New York City Department of Finance Real Property
Transfer Tax Return (the "RPT Return") and the New York State Combined Real
Estate Transfer Tax Return and Credit Line Mortgage Certificate (the "Form
TP-584") and/or any other applicable transfer
----------
(18)To be deleted if pursuant to applicable option provision of
Declaration, Unit is to be delivered vacant and free and clear of tenancies at
Closing.
J-19
tax returns required in connection with the transfer of the Property to
Purchaser or the recording of the Memoranda.
12.1.16 A title affidavit in the form customarily required by the
Title Company.
12.1.17 To the extent the same are in Seller's possession, copies of
any drawings and/or CADD design files for all leasehold improvements made by
Seller to such Unit(s) on an "as-built basis" without cost to Purchaser.
12.2 PURCHASER'S OBLIGATIONS AT CLOSING. Purchaser shall deliver or cause
to be delivered to Seller (or, in the case of subsection 12.2.2 hereof, to the
lessor under the Unit Lease) on the Closing Date, for the Property, the
following:
12.2.1 The Purchase Price, as adjusted pursuant to Article 11
hereof.
12.2.2 A modification agreement with respect to Purchaser's Unit
Lease in form reasonably satisfactory to Seller and Purchaser, duly executed by
the lessor thereunder and by Purchaser, providing for the leasing of the Unit to
Purchaser as of 12:01 am. on the Closing Date for the balance of the term of the
Purchaser's Unit Lease, together with all rights, duties and obligations with
respect thereto accruing from and after the Closing Date, and reflecting the
apportionments provided for in Sections 11.1.13 and 11.1.14 hereof.
12.2.3 A memorandum of the modification agreement referred to in
Section 12.2.2 hereof.
12.2.4 Duplicate originals of the ***[Assignment and Assumption of
Landlord's Interest in Leases,]***, the Post-Closing Adjustment Letter, the RPT
Return, Form TP-584 (and/or other applicable transfer tax returns) and the
Tenant Notice Letters, duly executed by Purchaser.
12.2.5 Evidence reasonably acceptable to Seller and the Title
Company authorizing the consummation by Purchaser of the transaction which is
the subject of this Agreement, and the execution and delivery of documents on
behalf of Purchaser.
12.3 ADDITIONAL DOCUMENTS. Purchaser and Seller shall each deliver at
closing such other documents as may be reasonably and customarily required by
the Title Company to consummate the transaction contemplated by this Agreement,
including, without limitation, an assignment and assumption of the Unit Lease
insofar as the same relates to the Property.
ARTICLE 13
PERSONAL PROPERTY
The parties hereto agree that no part of the Purchase Price is
attributable to personal property.
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ARTICLE 14
UNPAID TAXES
14.1 The amount of any unpaid real estate taxes, assessments, water
charges and sewer rents other than items subject to proration as heretofore
provided, which Seller is obligated to pay and discharge may, at the option of
Seller, be allowed to Purchaser out of the Purchase Price, provided that
official bills therefor with interest and penalties thereon calculated to said
date are furnished by Seller at the Closing.
14.2 Seller may use any portion of the Purchase Price to satisfy any liens
or encumbrances which exist on the Closing Date which are not Permitted
Encumbrances, provided that Seller deliver to Purchaser at Closing instruments
in recordable form sufficient to satisfy such liens and encumbrances of record,
together with the cost of recording or filing said instruments.
ARTICLE 15
THE CLOSING
15.1 THE CLOSING. The sale and purchase of the Property contemplated by
the terms and conditions of this Agreement shall be consummated at the Closing.
15.1.1 LOCATION AND DATE OF CLOSING. Subject to the satisfaction of
the terms and conditions herein set forth, the Closing shall take place at the
offices of Purchaser or Purchaser's attorneys (or the attorney's for Purchaser's
lender) in either case in New York City (such place of Closing to be designated
by Purchaser by notice to Seller given at least 2 Business Days prior to
Closing) at 10:00 AM., on [_______________]***(19) (the "Closing Date").
Purchaser shall have the right to set as the Closing Date any Business Day prior
to the date set forth in the immediately preceding sentence, provided Purchaser
shall give Seller at least ten (10) days prior written notice thereof, and in
the event of the giving of such notice, the date set forth therein shall be the
"Closing Date" for purposes of this Agreement. Purchaser shall have the right to
adjourn the Closing Date for a period not to exceed ten (10) Business Days, and
time shall be of the essence with respect to the parties' obligation to close as
of such adjourned Closing Date.
15.1.2 DELIVERIES AT CLOSING. At the Closing, the Purchase Price and
any other payments required to be made by Purchaser hereunder shall be delivered
to Seller upon delivery to Purchaser of the Memoranda, and all other documents
required under Article 12 hereof shall be executed and delivered.
15.2 BUSINESS DAYS. For purposes of this Agreement, the term "Business
Day" shall mean all days except Saturdays, Sundays, and all days observed by the
Federal Government or New York State as legal holidays.
----------
(19) Date to be inserted is 60 days after exercise of option by Purchaser
(or first Business Day thereafter), except that, in the case of exercise of
right of first refusal, closing shall be later of (i) closing date in term
sheet, or (ii) 60 days after exercise of right, or first Business Day
thereafter.
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ARTICLE 16
NOTICES
Except as otherwise provided in this Agreement, any and all notices,
elections, demands, requests and responses permitted or required to be given
pursuant to this Agreement shall be in writing, signed by the party giving the
same or by its attorneys, and shall be deemed to have been duly given and
effective upon being: (i) personally delivered with receipt for delivery; or
(ii) deposited with a nationally recognized express overnight delivery service
(e.g., Federal Express) for next Business Day delivery with receipt for
delivery; or (iii) deposited in the United States mail, postage prepaid,
certified with return receipt requested (with an additional copy simultaneously
sent by the method described in either clause (i) or clause (ii) of this
sentence), addressed, in any case, to the other party at the address of such
other party set forth below, or at such other address within the continental
United States as may be designated by a notice of change of address and given in
accordance herewith. The time period in which a response to any such notice,
election, demand or request must be given shall commence on the date of receipt
thereof. Personal delivery to a party or to any officer, partner, agent or
employee of such party at said address shall be deemed given and received at the
time delivered. Rejection or other refusal to accept, or inability to deliver
because of changed address of which no notice has been received, shall also
constitute receipt. Any such notice, election, demand, request or response shall
be addressed to the respective parties as follows:
(i) if to Seller, to:
__________________________
__________________________
__________________________
__________________________
with a copy to:
__________________________
__________________________
__________________________
__________________________
(ii) if to Purchaser, to:
__________________________
__________________________
__________________________
__________________________
with a copy to:
__________________________
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__________________________
__________________________
__________________________
with a copy to:
00xx Xx. Development Project, Inc.
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
ARTICLE 17
SELLER'S DEFAULT; SURVIVAL
17.1 SELLER'S DEFAULT. If any of Seller's representations or warranties
contained in this Agreement are untrue as of the date made or as of the Closing
Date or if Seller shall have failed to perform any of the covenants or other
agreements contained herein which are to be performed by Seller, on or before
the date set forth herein for the performance thereof (each event referred to in
the foregoing provisions of this sentence is herein sometimes called a "Seller
Default"), then Purchaser may, at its option, elect to terminate this Agreement
by giving written notice of such election to Seller, and, if Purchaser so
elects, ***[Purchaser shall receive a refund of the Deposit together with all
interest accrued thereon within five (5) Business Days following such
termination and ]*** this Agreement shall be terminated and the parties hereto
shall be relieved of all further obligations and liability under this Agreement
(other than those that are expressly stated to survive the termination of this
Agreement). In the alternative, Purchaser may seek to enforce specific
performance of this Agreement; provided, however, that (unless Seller is a
Public Party) Purchaser's election to seek specific performance shall not limit
Seller's liability for damages with respect to (i) any provision of this
Agreement requiring Seller to indemnify Purchaser, including without limitation,
Section 3.1.10 hereof, or (ii) Seller's breach of any representation or warranty
hereunder which survives the Closing and which breach is first discovered by
Purchaser following conveyance of the Property to Purchaser. It is expressly
understood and agreed by Seller and Purchaser that the failure by Purchaser to
terminate this Agreement for any reason pursuant to this Section shall in no way
waive, alter or modify any rights of Purchaser in regard to the representations,
warranties, covenants and agreements of Seller in this Agreement.
17.2 SURVIVAL. Except as specifically set forth to the contrary in this
Agreement, none of the representations, warranties, covenants, indemnities,
agreements, obligations or commitments made by Seller or Purchaser in this
Agreement shall survive the Closing, the same being merged in the conveyance. If
survival is herein provided and no time specified, such matter or matters shall
be the basis for a claim against the Seller or Purchaser only if asserted in
writing within nine (9) months after the Closing Date.
J-23
***[17.2 PURCHASER'S DEFAULT. If Purchaser fails to accept title and pay
the Purchase Price at Closing in accordance with this Agreement, the Deposit,
together with all interest accrued thereon, if any, shall be retained by Seller
as liquidated damages. The provisions herein contained for liquidated and agreed
upon damages are bona fide provisions for such and are not a penalty, the
parties agreeing that by reason of Seller binding itself to the sale of the
Property and by reason of the withdrawal of the Property from sale at a time
when other parties would be interested in acquiring the Property, that Seller
will sustain damages if Purchaser defaults, which damages will be substantial
but will not be capable of determination with mathematical precision, and
therefore, as aforesaid, this provision for liquidated and agreed upon damages
has been incorporated in this Agreement as a provision beneficial to both
parties.]***(20)
ARTICLE 18
BROKERS
18.1 REPRESENTATION. Each party represents and warrants to the other party
that the party making such representation (the "Warranting Party") has not dealt
with any broker, finder or consultant in connection with the transaction which
is the subject of this Agreement. The Warranting Party further represents and
warrants that in the event any claim is made for a broker's, finder's or
consultant's commission or fee by anyone as a result of the acts or actions of
the Warranting Party or its representatives with respect to the within
transaction, the Warranting Party shall indemnify, defend and hold the other
party to this Agreement harmless from any and all loss, liability, cost, damage
or expense with respect to such claims (including, without limitation,
reasonable attorneys' fees and disbursements). This Section shall survive the
Closing or earlier termination of this Agreement.
ARTICLE 19
MISCELLANEOUS
19.1 MERGER. This Agreement constitutes the entire understanding between
the parties with respect to the transaction contemplated herein, and all prior
or contemporaneous oral agreements, understandings, representations and
statements, and all prior written agreements, understandings, representations
and statements are merged into this Agreement. Neither this Agreement nor any
provisions hereof may be modified, amended, discharged or terminated except by
an instrument in writing signed by the party against which the enforcement of
such modification, amendment, discharge or termination is sought, and then only
to the extent set forth in such instrument. Unless otherwise provided herein, no
provision of this Agreement may be waived except by an instrument in writing
signed by the party against which the enforcement of such waiver is sought.
19.2 HEADINGS. The Article, Section, Schedule and Exhibit headings used
herein are for convenience only, and are not to be used in determining the
meaning of this Agreement or any part hereof.
----------
(20) If Deposit is paid pursuant to Section 2.4. Otherwise, to be deleted.
J-24
19.3 GOVERNING LAW. This Agreement and its interpretation and enforcement
shall be governed by the laws of the State of New York without regard to
conflict of law principles.
19.4 JURISDICTION. For the purposes of any suit, action or proceeding
involving this Agreement, Seller and Purchaser hereby expressly submit to the
jurisdiction of all federal and state courts sitting in the State of New York,
and consent that any order, process, notice of motion or other application to or
by any such court, or a judge thereof, may be served within or without such
court's jurisdiction by registered mail or by personal service, provided that a
reasonable time for appearance is allowed, and Seller and Purchaser agree that
such courts shall have the exclusive jurisdiction over any such suit, action or
proceeding commenced by either or both of said parties. In furtherance of such
agreement, Seller and Purchaser agree upon the request of the other party to
discontinue (or agree to the discontinuance of) any such suit, action or
proceeding pending in any other jurisdiction.
19.5 WAIVER OF VENUE AND INCONVENIENT FORUM CLAIMS. Seller and Purchaser
hereby irrevocably waive any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement brought in any federal or state court sitting in the State of New
York, and hereby further irrevocably waive any claim that any such suit, action
or proceeding is brought in any inconvenient forum.
19.6 WAIVER OF JURY TRIAL. Each of the parties hereto waives, irrevocably
and unconditionally, any and all right to trial by jury in any action brought
on, under, or by virtue of, or relating in any way to this Agreement or the
transactions contemplated hereby, or any of the documents executed in connection
herewith, the Property, or any claims, defenses, rights of set-off or other
actions pertaining hereto or to any of the foregoing.
19.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and inure
to the benefit of, the successors and assigns of the parties hereto.
19.8 INVALID PROVISIONS. If any term or provision of this Agreement, or
any part of any term or provision, or the application thereof to any person or
circumstance shall to any extent be held invalid or unenforceable, the remainder
of this Agreement or the application of such term or provision or remainder
thereof to persons or circumstances other than those as to which it is held
invalid and unenforceable shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
19.9 SCHEDULES AND EXHIBITS. All Schedules and Exhibits which are annexed
to this Agreement are a part of this Agreement and are incorporated herein by
reference.
19.10 NO OTHER PARTIES. The provisions of this Agreement are for the sole
benefit of the parties to this Agreement and their successors and permitted
assigns, and shall not give rise to any rights by or on behalf of anyone other
than such parties, and no party is intended to be a third party beneficiary
hereof. No provisions of this Agreement, or of any of the documents and
instruments executed in connection herewith, shall be construed as creating in
any person or entity other than Purchaser and Seller and their permitted assigns
any rights of any nature whatsoever.
J-25
19.11 INTERPRETATION. This Agreement shall be construed without regard to
any presumption or other rule requiring construction against the party causing
this Agreement to be drafted.
19.12 LITIGATION FEES. In the event that any litigation arises under this
Agreement, the prevailing party (which term shall mean the party which obtains
substantially all of the relief sought by such party) shall be entitled to
recover, as a part of its judgment, reasonable attorneys' fees.
19.13 SINGULAR/PLURAL. The use of the singular shall be deemed to include
the plural, and vice versa, whenever the context so requires.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
of Sale and Purchase as of the date first above written.
[SELLER]
By:
Name:
Title:
[PURCHASER]
By:
Name:
Title:
J-26
EXHIBIT 1
INTENTIONALLY OMITTED
Exh. 2-1
EXHIBIT 2
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS that _______, having an office at
___________ ("SELLER") for and in consideration of the sum of Ten ($10.00)
Dollars and other good and valuable consideration to it in hand paid, at or
before the unsealing and delivery of these presents by ___________, having an
office at ___________ ("PURCHASER"), the receipt and sufficiency whereof are
hereby acknowledged, has transferred and conveyed and by these presents does
quitclaim, release, transfer and convey unto Purchaser, its successors and
assigns, all fixtures, machinery and equipment to the extent same constitute
personal property, and all other personal property (collectively, the "PERSONAL
PROPERTY") used in connection with the operation of those certain premises known
as _______________ (the "PREMISES") and not being the property of any space
tenant or occupant of the Premises or any manager or leasing agent.
TO HAVE AND TO HOLD, the same unto Purchaser, its successors and
assigns, forever.
This transfer is made as part of the transfer of the Premises by
Seller to Purchaser as of the date hereof, and both parties agree and
acknowledge that no part of the consideration therefor is allocated to the
Personal Property.
This transfer is made without representation, warranty or guaranty
by, or recourse against, Seller of any kind whatsoever.
IN WITNESS WHEREOF, Seller has signed this instrument as of this __
day of , 2___.
[Seller]
Exh. 4-2
EXHIBIT 3
INTENTIONALLY OMITTED
Exh. 3-1
EXHIBIT 4
ASSIGNMENT AND ASSUMPTION OF LANDLORD'S INTEREST IN LEASES
KNOW ALL MEN BY THESE PRESENTS that ______, having an office at (the
"ASSIGNOR"), in consideration of Ten ($10.00) Dollars and other good and
valuable consideration in hand paid by _______________, having an office at
______________ (the "ASSIGNEE"), the receipt and sufficiency of which are hereby
acknowledged, hereby assigns unto Assignee all of Assignor's right, title and
interest in and to the following:
(i) All leases (the "LEASES") made and entered into by any and
all tenants at those certain premises known as ________ (the
"PREMISES"); and
(ii) All security deposits, if any, held by Assignor under the
Leases.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, from and after the date hereof, subject to the terms, covenants,
conditions and provisions contained in the Leases.
Assignee hereby assumes the performance of all of the terms,
covenants and conditions of the Leases herein assigned by Assignor to Assignee
on, from and after the date hereof and hereby agrees to perform all of the
terms, covenants and conditions of the Leases to be performed on, from and after
the date hereof, all with the full force and effect as if Assignee had signed
the Leases originally as the landlord named therein.
Assignor does hereby agree for itself, its successors and assigns,
to indemnify and hold harmless Assignee and its partners, directors, officers,
principals, shareholders, agents and employees from and against any claim
arising from or in connection with the performance by Assignor under the Leases
prior the date hereof, together with all reasonable costs, expenses and
liabilities in connection with each such claim or action or proceeding brought
thereon, including without limitation, all reasonable attorneys' fees and
expenses. In case any action be brought against Assignee and/or its partners,
directors, officers, principals, shareholders, agents and/or employees by reason
of any such claim, Assignor, upon notice from Assignee, shall resist and defend
such action or proceeding (by counsel reasonably satisfactory to Assignee).
Assignee does hereby agree for itself, its successors and assigns,
to indemnify and hold harmless Assignor and its partners, directors, officers,
principals, shareholders, agents and employees from and against any claim
arising from or in connection with the performance by Assignee under the Leases
on, from and after the date hereof, together with all reasonable costs, expenses
and liabilities in connection with each such claim or action or proceeding
brought thereon, including without limitation, all reasonable attorneys' fees
and expenses. In case any action be brought against Assignor and/or its
partners, directors, officers, principals, shareholders, agents and/or employees
by reason of any such claim, Assignee, upon notice from Assignor, shall resist
and defend such action or proceeding (by counsel reasonably satisfactory to
Assignor).
Exh. 4-1
IN WITNESS WHEREOF, the parties hereto have signed this instrument
as of this ___ day of _______, 2___.
[Assignor]
By:_____________________________________
[Assignee]
By:_____________________________________
Exh. 4-2
EXHIBIT 5
ASSIGNMENT OF LICENSES, PERMITS, WARRANTIES AND GUARANTEES
KNOW ALL MEN BY THESE PRESENTS that _______,having an office at (the
"ASSIGNOR") in consideration of Ten ($10.00) Dollars and other good and valuable
consideration in hand paid by ____________, having an office at
_____________________ (the "ASSIGNEE"), the receipt and sufficiency of which are
duly acknowledged, hereby assigns and quitclaims unto Assignee all of Assignor's
right, title and interest, if any, in and to (i) all assignable licenses and/or
permits, if any, relating to and affecting those certain premises known as
_________________________ (the "PREMISES"), and (ii) all assignable warranties
and guarantees of contractors, manufacturers, suppliers and/or installers, if
any, relating to the Premises.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, from and after the date hereof, subject to the terms, covenants,
conditions and provisions therein contained.
This Assignment is made in connection with the transfer this day of
the Premises by Assignor to Assignee.
This Assignment is made without warranty or representation by, or
recourse against Assignor of any kind whatsoever.
IN WITNESS WHEREOF, the undersigned has signed this Assignment as of
this ____ day of _______, 2___.
[Assignor]
By:_____________________________________
Exh. 5-1
EXHIBIT 6
POST-CLOSING ADJUSTMENT LETTER
[Letterhead of Seller]
[Date]
[Name and Address of
Purchaser]
Re:
(THE "PREMISES")
Gentlemen:
In connection with the closing adjustments made pursuant to the
transfer of title of the Premises by the undersigned to you, a copy of which
closing adjustments is annexed hereto, it is hereby agreed that if any
arithmetic calculations shall prove to be erroneous, or any adjustment shall be
omitted, same shall be adjusted between you and the undersigned after the
closing. Any such adjustment shall be paid promptly after same is ascertained.
The obligation to correct any erroneous adjustment or to make any additional
adjustment in accordance with the above shall survive the closing.
Very truly yours,
[Seller]
By:_____________________________________
AGREED TO:
[Purchaser]
By:______________________________
Xxx. 0-0
XXXXXXX 0
XXXXXX CERTIFICATE
Section 1445 of the Internal Revenue Code provides that a transferee
of a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not required
upon the disposition of a U.S. real property interest by ___________, the
undersigned hereby certifies the following on behalf of _____________:
1. __________ is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined
in the Internal Revenue Code and Income Tax Regulations);
2. __________'s U.S. employer identification number is _____, and
3. __________'s office address is ___________________________.
The undersigned understands that this certification may be disclosed
to the Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of ____________.
Dated:_______________________________ ________________________________________
[Title]
Exh. 7-1
EXHIBIT K
FORM OF NYTC PURCHASE GUARANTY
UNIT PURCHASE GUARANTY
THIS UNIT PURCHASE GUARANTY ("GUARANTY") is made and entered into as of
the ___ day of_____________, 200_, by THE NEW YORK TIMES COMPANY, a _______
corporation, whose address is 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: __________________ ("GUARANTOR"), in favor of [FC UNIT OWNER], a
_____________________________________, whose address is Xxx XxxxxXxxx Xxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: General Counsel ("SELLER").
W I T N E S S E T H:
WHEREAS:
A. Concurrently with execution and delivery of this Guaranty, Seller and
_______ ("PURCHASER") have entered into an Agreement of Sale and Purchase (the
"PURCHASE AGREEMENT") pursuant to which Seller has agreed to sell to Purchaser,
and Purchaser has agreed to purchase from Seller, the "PROPERTY", as such term
is defined in the Purchase Agreement.
B. Guarantor has an interest in Purchaser and has agreed to guaranty the
"GUARANTEED OBLIGATIONS" as such term is hereinafter defined.
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Guarantor, Guarantor hereby agrees as follows (all capitalized
terms used herein without definition having the meanings ascribed to them in the
Purchase Agreement):
1. (a) Guarantor, for itself, its successors and assigns, hereby
primarily, unconditionally, absolutely and irrevocably guarantees:
(i) that Guarantor will cause Purchaser to pay, and in the event
of the failure of Purchaser so to do, Guarantor will pay, the
"PURCHASE PRICE" (as such term is defined in the Purchase
Agreement) if, as and when the "CLOSING" (as such term is
defined in the Purchase Agreement) occurs, subject to and in
accordance with all of the terms, covenants and conditions of
the Purchase Agreement; and
(ii) The full and prompt payment of any Enforcement Costs (as
hereinafter defined in Paragraph 19 hereof).
K-1
(b) Guarantor represents and warrants that, as of the date of this
Guaranty, Guarantor has a credit rating of "A-minus"(6) or better as determined
by the "Rating Agency" (as such term is defined in that certain Declaration of
Leasehold Condominium governing the real property of which the Property forms a
part).
2. Guarantor guarantees the Guaranteed Obligations regardless of any law,
statute, rule, regulation, decree or order now or hereafter in effect in any
jurisdiction affecting or purporting to affect in any manner any of the terms or
the rights or remedies of Seller with respect to the Guaranteed Obligations. The
obligations and liabilities of Guarantor hereunder shall be direct and primary
and not indirect or secondary, and shall be absolute, unconditional and
irrevocable. Guarantor's obligations hereunder shall not be deemed exonerated,
discharged or satisfied, except as provided in Section 16 hereof.
3. If Guarantor fails to promptly perform its obligations under this
Guaranty, Seller shall, from time-to-time, and without first attempting to
require performance by Purchaser, have the right to bring any action at law or
in equity, or both, to compel Guarantor to perform its obligations hereunder,
and/or to collect in any such action compensation for all losses, costs,
expenses, damages and injuries sustained or incurred by Lender as a direct or
indirect consequence of the failure of Guarantor to perform such obligations.
Guarantor shall indemnify and hold Lender free and harmless from and against any
and all loss, damage, cost, expense, injury, or liability Lender may suffer or
incur in connection with the exercise of its rights under this Guaranty or the
performance of the Guaranteed Obligations.
4. All of the remedies set forth herein and/or provided for in the
Purchase Agreement or at law or equity shall be equally available to Seller and
the choice of one such alternative over another shall not be subject to question
or challenge by Guarantor or any other person, nor shall any such choice be
asserted as a defense, setoff, or failure to mitigate damages in any action,
proceeding, or counteraction by Seller to recover or seeking any other remedy
under this Guaranty, nor shall such choice preclude Seller from subsequently
electing to exercise a different remedy. The parties have agreed to the
alternative remedies provided herein in part because they recognize that the
choice of remedies in the event of a default hereunder will necessarily be and
should properly be a matter of good-faith business judgment, which the passage
of time and events may or may not prove to have been the best choice to maximize
recovery by Seller at the lowest cost to Purchaser and/or Guarantor. It is the
intention of the parties that such good-faith choice by Seller be given
conclusive effect regardless of such subsequent developments.
5. Guarantor hereby waives (i) notice of acceptance of this Guaranty by
Seller and any and all notices and demands of every kind which may be required
to be given by any statute, rule or law, (ii) any defense, right of set-off or
other claim which any Guarantor may have against Seller, except for claims of
actual payment or actual performance (iii) presentment for payment, demand for
payment, notice of nonpayment or dishonor, protest and notice of protest,
----------
(6) Substitute equivalent rating to "A-Minus" if Rating Agency is no
longer Standard & Poors.
K-2
diligence in collection and any and all formalities which otherwise might be
legally required to charge Guarantor with liability, and (iv) any failure by
Seller to inform Guarantor of any facts Seller may now or hereafter know about
Purchaser, the Property, or the terms of the Purchase Agreement, it being
understood and agreed that Seller has no duty so to inform and that Guarantor is
fully responsible for being and remaining informed by Purchaser of all such
circumstances bearing on the risk of nonperformance of the Purchaser's
obligation under the Purchase Agreement. Guarantor agrees that any claims which
Guarantor may have against Purchaser must be brought in a separate action, which
action shall not be consolidated with any action brought by Seller, unless such
consolidation is required by law. Seller shall have no obligation to disclose or
discuss with Guarantor its assessment of the financial condition of Purchaser.
Guarantor acknowledges that no representations of any kind whatsoever have been
made to it by Seller. No modification or waiver of any of the provisions of this
Guaranty shall be binding upon Seller except as expressly set forth in a writing
duly signed and delivered on behalf of Seller.
6. Guarantor further agrees that Guarantor's liability as guarantor shall
in nowise be impaired or affected by any extensions which may be made from time
to time, with or without the knowledge or consent of Guarantor, of the time for
performance by Purchaser under the Purchase Agreement or by any forbearance or
delay in enforcing same, or by way of waiver by Seller under the Purchase
Agreement. Seller's failure or election not to pursue any other remedies it may
have against Purchaser, Guarantor, or by virtue of any change or modification in
the Purchase Agreement or by the acceptance by Seller of any additional security
or any increase, substitution or change therein, or by the release by Seller of
any security or any withdrawal thereof or decrease therein, or by the
application of payments received from any source to the payment of any
obligation other than the Guaranteed Obligations, even though Seller might
lawfully have elected to apply such payments to any part or all of the
Guaranteed Obligations, it being the intent hereof that Guarantor shall remain
liable as principal for payment and/or performance of the Guaranteed Obligations
until the Guaranteed Obligations have been paid or performed in full and
notwithstanding any act or thing which might otherwise operate as legal or
equitable discharge of a surety. Guarantor further understands and agrees that
Seller may at any time enter into agreements with Purchaser to amend and modify
the Purchase Agreement and may waive or release any provision or provisions of
the Purchase Agreement, and, with reference to such instruments, may make and
enter into any such amendments or agreements as the parties thereto may deem
proper and desirable, and may apply any monies received by Seller, regardless of
the purpose for which the same was given to Seller to cure any default or to
apply on account of the Guaranteed Obligations, in such order and priority as
Seller, in its sole discretion, may require without in any manner impairing or
affecting this Guaranty or any of Seller's rights hereunder or Guarantor's
obligations hereunder.
7. Guarantor hereby acknowledges having received, reviewed and understood
a true, correct and complete copy of the Purchase Agreement. Guarantor
acknowledges that this Guaranty is in effect and binding without reference to
whether this Guaranty is signed by any other person or entity, that possession
of this Guaranty by Seller shall be conclusive evidence of due delivery hereof
by Guarantor and acceptance hereof by Seller, and that this Guaranty shall
continue in full force and effect, both as to guaranteed obligations and
liabilities now existing and/or those hereafter created.
K-3
8. Guarantor hereby consents and agrees that, without any further notice
to, or consent or agreement of, Guarantor (a) Seller make take, hold, exchange,
enforce, waive, surrender and/or release other guarantees, collateral or
security which further secure(s) payment and/or performance of this Guaranty or
the Purchase Agreement, and (b) that any of the obligations, terms, covenants
and conditions contained in the Purchase Agreement (including, but not limited
to, Purchaser's obligations thereunder) may be renewed, altered, extended,
changed, modified, supplemented or released at Seller's written direction, or
with Seller's written consent, without in any manner affecting this Guaranty or
releasing Guarantor herefrom, and without the further consent of or notice to
Guarantor, and Guarantor shall continue to be liable hereunder to pay and
perform pursuant hereto notwithstanding any such renewal, alteration, extension,
change, modification, supplement or release, or the taking, holding, exchanging,
enforcing, waiving, surrender and/or release of such other guarantees,
collateral or security. Seller may perfect or fail to perfect, or to continue
the perfection of, any lien or security interest without notice to,
consideration to or the consent of Guarantor, and without in any way releasing,
diminishing or affecting the absolute nature of Guarantor's obligations and
liabilities hereunder.
9. Guarantor hereby waives any and all legal requirements that Seller, or
its successors or assigns, must institute any action or proceeding at law or in
equity, or obtain any judgment, or exhaust their rights, remedies and/or
recourses against Purchaser or any other person or entity, or with respect to
any security for the obligations hereby guaranteed, as a condition precedent to
making any demand on, bringing an action against, or obtaining or enforcing any
judgment against, Guarantor upon this Guaranty, and/or that it join Purchaser or
any other person or entity as a party to any such action. All remedies afforded
to Seller, and its successors or assigns, by reason of this Guaranty, are
separate and cumulative remedies, and it is agreed that no one of such remedies,
whether or not exercised by Seller, or its successors or assigns, shall be
deemed in exclusion of any of the other remedies available to Seller or its
successors or assigns, at law, in equity, by statute, under contract, hereunder
or otherwise, and shall in no way limit or prejudice any such other remedies
which Seller, or its successors or assigns, may have. Mere delay or failure to
act shall not preclude the exercise or enforcement of any rights and remedies
available to Seller. Guarantor further waives any requirement that Seller demand
or seek payment or performance by Purchaser or by any other person or entity of
the amounts owing or the covenants to be performed under the Purchase Agreement,
whether hereby guaranteed or not, as a condition precedent to bringing any
action against Guarantor upon this Guaranty, it being agreed that a failure to
comply with or perform the obligations, terms, covenants and conditions herein
guaranteed shall, without further act, make Guarantor liable as herein set
forth.
10. This Guaranty is an absolute, unconditional, present and continuing
guaranty of performance of the obligations recited in Paragraph 1 hereof.
Guarantor hereby expressly waives all defenses of Purchaser pertaining to said
obligations, except for the defense of discharge by complete and irrevocable
performance, and except for such defenses as would constitute a defense to
Purchaser's obligation to close under the Purchase Agreement. Guarantor shall
not be released (a) by any act, omission or thing which might, but for this
provision of this Guaranty, be deemed a legal or equitable discharge of a surety
or guarantor, (b) by any defense based upon
K-4
any statute or rule of law which provides that the obligations of a surety or
guarantor must be neither larger in amount nor in other respects more burdensome
than those of a principal, or (c) by reason of any waiver, extension, renewal,
modification, forbearance or delay by Seller, or its successors or assigns, or
its failure to proceed promptly or otherwise, and Guarantor hereby expressly
waives and surrenders any defense to liability hereunder based upon the
foregoing acts, omissions, things, statutes, rules, waivers, extensions,
modifications, forbearances, delays, obligations, agreements, or any of them,
except the defense of complete and irrevocable performance in full. Guarantor
also waives any defense arising by virtue of any disability, insolvency,
bankruptcy, defect in formation or continuation, lack of authority or power,
death, insanity, incompetence, liquidation or dissolution of, or any cessation
or limitation of liability from any cause (other than full and irrevocable
performance) of, Purchaser, any member or agent thereof, or any other surety,
co-maker, endorser or guarantor. No change in the ownership of Purchaser or in
Purchaser's members shall affect or change the terms of this Guaranty or in any
way change or reduce the liability of Guarantor hereunder. This Guaranty shall
continue to be effective or be reinstated (as the case may be) if at any time
payment of all or any part of any sum payable pursuant to the Purchase Agreement
or hereunder is rescinded or otherwise required to be returned upon the
insolvency, bankruptcy, dissolution, liquidation, or reorganization of
Purchaser, or upon or as a result of the appointment of a receiver, intervener,
custodian or conservator of or trustee or similar officer for, or any
substantial part of its property, or otherwise, all as though such payment had
not been made, regardless of whether the recipient thereof contested the order
requiring the return of such payment.
11. Guarantor hereby expressly agrees that the liabilities and obligations
of Guarantor under this Guaranty shall not in any way be impaired or otherwise
affected by the institution by or against Purchaser or any other person or
entity of any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or any other similar proceedings for relief under any bankruptcy
law or similar law for the relief of debtors and that any discharge of any of
the obligations and/or liabilities hereby guaranteed pursuant to any such
bankruptcy or similar law or other law shall not diminish, discharge or
otherwise affect in any way the obligations of Guarantor under this Guaranty,
and that upon the institution of any of the above actions, such obligations
shall be enforceable against Guarantor.
12. In the event that Guarantor shall advance or become obligated to pay
any sums or incurs any costs or expenses hereunder, or in the event that for any
reason Purchaser is now or shall hereafter become indebted or obligated to
Guarantor, the amount of such sum, costs, expenses and such indebtedness or
obligation shall at all times be subordinated as to lien, time of payment and in
all other respects to the amounts owing to Seller hereunder. Notwithstanding any
payment or payments made, or costs or expenses incurred, by Guarantor hereunder,
Guarantor shall not be entitled to be subrogated to any of the rights of Seller
against Purchaser or any other guarantor or any collateral security or guaranty
held by Seller for the payment of the guaranteed obligation, nor shall Guarantor
seek or be entitled to seek any contribution or reimbursement from Purchaser or
any other guarantor in respect of payments made, or costs or expenses incurred,
by Guarantor hereunder unless and until the Guaranteed Obligations and any
Enforcement Costs shall have been paid in full. Except as otherwise set forth
herein, Guarantor shall have no right to participate in any way in the right,
title or interest of Seller in the Property, or to receive payments from
Purchaser upon any indebtedness or obligation, notwithstanding any
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payments made, or costs or expenses incurred, by Guarantor hereunder, all rights
of reimbursement, indemnification, subrogation and participation being hereby
expressly waived and released with respect to any such payments, costs and
expenses. Guarantor agrees that, following any default or event of default under
the Purchase Agreement, and until the Guaranteed Obligations thereunder shall
have been paid and/or performed in full, Guarantor will not accept any payment
or satisfaction of any kind of any indebtedness or obligation of Purchaser to
Guarantor. Further, as long as Guarantor remains liable hereunder, Guarantor
agrees that, if, following any default or event of default under the Purchase
Agreement, Guarantor should receive any payment, satisfaction or security for
any indebtedness or obligation of Purchaser to Guarantor, the same shall be
delivered to Seller in the form received, endorsed or assigned as may be
appropriate, for application on account of or as security for the Guaranteed
Obligations thereunder, and, until so delivered, shall be held in trust for
Seller as security for said Guaranteed Obligations. In addition, at any time, in
the event of any receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization or arrangement with creditors (whether or
not pursuant to bankruptcy laws), sale of all or substantially all of the
assets, dissolution, liquidation or any other marshaling of the assets and
liabilities of Purchaser, Seller shall be entitled to performance in full of the
obligations hereby guaranteed prior to the payment of all or any part of any
indebtedness of Purchaser to Guarantor, and Guarantor will, at the request of
Seller, file any claim, proof of claim or other instrument of similar character
necessary to enforce the obligations of Purchaser in respect of such
indebtedness and hereby assigns to Seller, and will hold in trust for Seller,
any and all monies, dividends or other assets received in any such proceeding on
account of such obligations, unless and until the obligations hereby guaranteed
shall be irrevocably performed in full. In the event Guarantor fails to perform
said obligations, it shall pay and deliver said monies, dividends or other
assets to Seller.
13. Guarantor hereby warrants and represents unto Seller that:
(a) there are no actions, suits or proceedings pending or, to the
knowledge of Guarantor, threatened against or affecting Guarantor, which will
have a material adverse impact upon Guarantor's ability to perform its
obligations hereunder, or involving the validity or enforceability of this
Guaranty, at law or in equity; and Guarantor is not in default under any order,
writ, injunction, decree or demand of any court or any administrative body
having jurisdiction over Guarantor,
(b) any and all balance sheets, net worth statements, income and
expense statements, cash flow statements and other financial statements of, and
other financial statements and data relating to, Guarantor previously or
hereafter delivered to Seller fairly and accurately present, or will fairly and
accurately present, the financial condition of Guarantor as of the dates
thereof, since the dates of those most recently delivered, there has been no
material adverse change in the financial condition of Guarantor; Guarantor has
disclosed all events, conditions, and facts known to Guarantor which are more
likely than not to have a material adverse effect on the financial condition of
Guarantor; and neither this Guaranty nor any document, financial statement,
financial or credit information, certificate or statement relating to Guarantor
and referred to herein, or furnished to Seller by Guarantor contains, or will
contain, any untrue statement of a material fact or omits, or will omit, a
material fact;
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(c) Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York, and has all power,
authority, permits, consents, authorizations and licenses necessary to carry on
its business, and to execute, deliver and perform this Guaranty and any other
documents or instruments in connection therewith which it is required to
execute; all resolutions of the board of directors of Guarantor necessary to
authorize the execution, delivery and performance of this Guaranty and such
other documents or instruments have been duly adopted and are in full force and
effect; and this Guaranty and such other documents or instruments have been duly
authorized, executed and delivered by and on behalf of Guarantor so as to
constitute this Guaranty and such other documents or instruments the valid and
binding obligation of Guarantor, enforceable in accordance with their terms.
(d) The execution, delivery, and performance by Guarantor of this
Guaranty does not and will not contravene or conflict with (i) any law, order,
rule, regulation, writ, injunction or decree now in effect of any government,
governmental instrumentality court having jurisdiction over Guarantor, or (ii)
any contractual restriction binding on or affecting Guarantor or Guarantor's
property or assets which may adversely affect Guarantor's ability to fulfill its
obligations under this Guaranty.
14. The validity, construction and enforceability of this Guaranty shall
be governed by the internal laws of the State of New York, without giving effect
to conflict of laws principles thereof. Whenever possible, each provision of
this Guaranty and any other statement, instrument or transaction contemplated
hereby or relating hereto shall be interpreted in such manner as to be effective
and valid under such applicable law, but, if any provision of this Guaranty or
any other statement, instrument or transaction contemplated hereby or relating
hereto or any right or remedy hereby guaranteed or provided shall be held to be
unenforceable, prohibited or invalid under applicable law as to any person,
party or entity or under any circumstances, for any reason, such provision,
right or remedy shall be ineffective only to the extent of such
unenforceability, prohibition or invalidity, and only with respect to such
person, party, entity or circumstances, without invalidating or limiting or
preventing the enforcement of the remainder of such provision, right or remedy,
or the remaining provisions of this Guaranty, or any other right, remedy,
statement, instrument or transaction contemplated hereby or relating hereto, as
to any other person, party or entity or any other circumstances.
15. Notwithstanding any other provision or provisions herein contained, no
provision of this Guaranty shall require or permit the collection from Guarantor
of interest in excess of the maximum rate or amount, if any, which Guarantor may
be required or permitted to pay by any applicable law.
16. This Guaranty shall remain in full force and effect until payment
and/or performance of the Guaranteed Obligations in full, and thereafter, this
Guaranty shall be discharged, null, void and of no further force and effect.
Upon request by Guarantor, Seller will deliver to Guarantor written confirmation
of the discharge of the obligations and liabilities of Guarantor hereunder, and
Seller will return to Guarantor the original counterpart of this Guaranty. This
instrument shall inure to the benefit of Seller and its successors, assigns, and
shall bind Guarantor and Guarantor's successors and assigns. The obligations of
Guarantor
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under this Guaranty shall be enforceable in all events against Guarantor, its
successors and assigns, and each of them.
17. This Guaranty may be waived, modified, amended, terminated or
discharged only explicitly in a writing signed by Seller and Guarantor. A waiver
so signed shall be effective only in the specific instance and for the specific
purpose given.
18. Any notice, demand or request by Seller to Guarantor or from Guarantor
to Seller shall be in writing and shall be deemed to have been duly given or
made if either delivered personally or if mailed by certified or registered mail
addressed to the address set forth below (or at the correct address of any
assignee of Seller), except that mailed written notices shall not be deemed
given or served until three (3) days after the date of mailing thereof:
(a) If to Guarantor:
The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:________________________________
with a copy to:
The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(b) If to Seller:
[________________________]
Xxx XxxxxXxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention Xxxxx X Xxxx, Esq
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19. If (i) this Guaranty is placed in the hands of an attorney for
collection or is collected through any legal proceeding; (ii) an attorney is
retained to represent Seller in any bankruptcy, reorganization, receivership, or
other proceedings affecting creditors' rights and involving a claim under this
Guaranty; (iii) an attorney is retained to provide advice or other
representation with respect to this Guaranty; or (iv) an attorney is retained to
represent Seller in any proceedings whatsoever in connection with this Guaranty,
then each Guarantor shall pay to Seller upon demand all attorney's fees, costs
and expenses, including, without limitation, court costs, filing fees, recording
costs, expenses of foreclosure, title insurance premiums, survey costs, minutes
of foreclosure, and all other costs and expenses incurred in connection
therewith (all of which are referred to herein as "Enforcement Costs"), in
addition to all other amounts due hereunder, regardless of whether all or a
portion of such Enforcement Costs are incurred in a single proceeding brought to
enforce this Guaranty.
20. Guarantor hereby irrevocably submits to personal jurisdiction in the
state of New York, City and County of New York for the enforcement of this
Guaranty and waives any and all personal rights to object to such jurisdiction
for the purposes of litigation to enforce this Guaranty. Guarantor hereby
consents to the jurisdiction of either any court in such city, county and state
or (in a case involving diversity of citizenship) the United States District
Court located there, in any action, suit, or proceeding which seller may at any
time wish to file in connection with this guaranty or any related matter.
Guarantor hereby agrees that an action, suit, or proceeding to enforce this
Guaranty may be brought in any state or federal court therein located and hereby
waives any objection which such guarantor may have to the laying of the venue of
any such action, suit, or proceeding in any such court; provided, however, that
the provisions of this paragraph shall not be deemed to preclude Seller from
filing any such action, suit, or proceeding in any other appropriate forum.
21. This Guaranty may be executed in any number of duplicate originals and
each such duplicate original shall be deemed to constitute but one and the same
instrument. Any signature page of this Guaranty may be detached from any
duplicate original of this Guaranty without impairing the legal effect of any
signatures thereon and may be attached to another duplicate original of this
Guaranty identical in form hereto but having attached to it one or more
additional signature pages.
22. Guarantor and Seller hereby waive any right to a trial by jury in any
action or proceeding to enforce or defend any right under this Guaranty or
relating thereto or arising from the relationship which is the subject of this
Guaranty and agree that any such action or proceeding shall be tried before a
court and not before a jury.
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EXHIBIT L
FORM OF NYTC SUBLEASE
See Exhibit P to The New York Times Building LLC Operating
Agreement, dated December 12, 2001.
EXHIBIT M
FORM OF NYTC LEASE GUARANTY
GUARANTY
THIS GUARANTY ("GUARANTY") is made and entered into as of the ____ day of
_____________, 20__, by THE NEW YORK TIMES COMPANY, a _______ corporation, whose
address is 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
__________________ ("GUARANTOR"), in favor of [FC UNIT OWNER], a
_______________________________________,whose address is Xxx XxxxxXxxx Xxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: General Counsel ("LANDLORD").
W I T N E S S E T H:
WHEREAS:
A. Concurrently with execution and delivery of this Guaranty, Landlord and
__________________________ ("TENANT") have entered into a Lease (the "LEASE")
pursuant to which Landlord has agreed to lease to Tenant, and Tenant has agreed
to lease from Seller, the "PREMISES", as such term is defined in the Lease.
B. Guarantor has an interest in Tenant and has agreed to guaranty the
"GUARANTEED OBLIGATIONS" as such term is hereinafter defined.
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Guarantor, Guarantor hereby agrees as follows (all capitalized
terms used herein without definition having the meanings ascribed to them in the
Lease):
1. (a) Guarantor, for itself, its successors and assigns, hereby
primarily, unconditionally, absolutely and irrevocably guarantees:
(i) the full and faithful keeping, performance and observance of all
the covenants, agreements, terms, provisions and conditions of the Lease
provided to be kept, performed and observed by Tenant (expressly including,
without being limited to, the payment as and when due of the fixed rent,
additional rent, charges and damages payable by Tenant under the Lease) and the
payment of any and all other damages for which Tenant shall be liable by reason
of any act or omission contrary to any of said covenants, agreements, terms,
provisions or conditions;
(ii) the full and prompt payment of any Enforcement Costs (as
hereinafter defined in Paragraph 19 hereof).
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(b) Guarantor represents and warrants that, as of the date of this
Guaranty, Guarantor has a credit rating of "A-minus"(7) or better as determined
by the "Rating Agency" (as such term is defined in that certain Declaration of
Leasehold Condominium governing the real property of which the Premises forms a
part).
2. Guarantor guarantees the Guaranteed Obligations regardless of any law,
statute, rule, regulation, decree or order now or hereafter in effect in any
jurisdiction affecting or purporting to affect in any manner any of the terms or
the rights or remedies of Landlord with respect to the Guaranteed Obligations.
The obligations and liabilities of Guarantor hereunder shall be direct and
primary and not indirect or secondary, and shall be absolute, unconditional and
irrevocable. Guarantor's obligations hereunder shall not be deemed exonerated,
discharged or satisfied, except as provided in Section 16 hereof.
3. If Guarantor fails to promptly perform its obligations under this
Guaranty, Landlord shall, from time-to-time, and without first attempting to
require performance by Tenant, have the right to bring any action at law or in
equity, or both, to compel Guarantor to perform its obligations hereunder,
and/or to collect in any such action compensation for all losses, costs,
expenses, damages and injuries sustained or incurred by Lender as a direct or
indirect consequence of the failure of Guarantor to perform such obligations.
Guarantor shall indemnify and hold Lender free and harmless from and against any
and all loss, damage, cost, expense, injury, or liability Lender may suffer or
incur in connection with the exercise of its rights under this Guaranty or the
performance of the Guaranteed Obligations.
4. All of the remedies set forth herein and/or provided for in the Lease
or at law or equity shall be equally available to Landlord and the choice of one
such alternative over another shall not be subject to question or challenge by
Guarantor or any other person, nor shall any such choice be asserted as a
defense, setoff, or failure to mitigate damages in any action, proceeding, or
counteraction by Landlord to recover or seeking any other remedy under this
Guaranty, nor shall such choice preclude Landlord from subsequently electing to
exercise a different remedy. The parties have agreed to the alternative remedies
provided herein in part because they recognize that the choice of remedies in
the event of a default hereunder will necessarily be and should properly be a
matter of good-faith business judgment, which the passage of time and events may
or may not prove to have been the best choice to maximize recovery by Landlord
at the lowest cost to Tenant and/or Guarantor. It is the intention of the
parties that such good-faith choice by Landlord be given conclusive effect
regardless of such subsequent developments.
5. Guarantor hereby waives (i) notice of acceptance of this Guaranty by
Landlord and any and all notices and demands of every kind which may be required
to be given by any statute, rule or law, (ii) any defense, right of set-off or
other claim which any Guarantor may have against Landlord, except for claims of
actual payment or actual performance (iii) presentment for payment, demand for
payment, notice of nonpayment or dishonor, protest and notice of protest,
diligence in collection and any and all formalities which otherwise might be
----------
(7) Substitute equivalent rating to "A-Minus" if Rating Agency is no
longer Standard & Poors.
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legally required to charge Guarantor with liability, and (iv) any failure by
Landlord to inform Guarantor of any facts Landlord may now or hereafter know
about Tenant or the terms of the Lease, it being understood and agreed that
Landlord has no duty so to inform and that Guarantor is fully responsible for
being and remaining informed by Tenant of all such circumstances bearing on the
risk of nonperformance of the Tenant's obligation under the Lease. Guarantor
agrees that any claims which Guarantor may have against Tenant must be brought
in a separate action, which action shall not be consolidated with any action
brought by Landlord, unless such consolidation is required by law. Landlord
shall have no obligation to disclose or discuss with Guarantor its assessment of
the financial condition of Tenant. Guarantor acknowledges that no
representations of any kind whatsoever have been made to it by Landlord. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon Landlord except as expressly set forth in a writing duly signed and
delivered on behalf of Landlord.
6. Guarantor further agrees that Guarantor's liability as guarantor shall
in nowise be impaired or affected by any extensions which may be made from time
to time, with or without the knowledge or consent of Guarantor, of the time for
performance by Tenant under the Lease or by any forbearance or delay in
enforcing same, or by way of waiver by Landlord under the Lease. Landlord's
failure or election not to pursue any other remedies it may have against Tenant,
Guarantor, or by virtue of any change or modification in the Lease or by the
acceptance by Landlord of any additional security or any increase, substitution
or change therein, or by the release by Landlord of any security or any
withdrawal thereof or decrease therein, or by the application of payments
received from any source to the payment of any obligation other than the
Guaranteed Obligations, even though Landlord might lawfully have elected to
apply such payments to any part or all of the Guaranteed Obligations, it being
the intent hereof that Guarantor shall remain liable as principal for payment
and/or performance of the Guaranteed Obligations until the Guaranteed
Obligations have been paid or performed in full and notwithstanding any act or
thing which might otherwise operate as legal or equitable discharge of a surety.
Guarantor further understands and agrees that Landlord may at any time enter
into agreements with Tenant to amend and modify the Lease and may waive or
release any provision or provisions of the Lease, and, with reference to such
instruments, may make and enter into any such amendments or agreements as the
parties thereto may deem proper and desirable, and may apply any monies received
by Landlord, regardless of the purpose for which the same was given to Landlord
to cure any default or to apply on account of the Guaranteed Obligations, in
such order and priority as Landlord, in its sole discretion, may require without
in any manner impairing or affecting this Guaranty or any of Landlord's rights
hereunder or Guarantor's obligations hereunder.
7. Guarantor hereby acknowledges having received, reviewed and understood
a true, correct and complete copy of the Lease. Guarantor acknowledges that this
Guaranty is in effect and binding without reference to whether this Guaranty is
signed by any other person or entity, that possession of this Guaranty by
Landlord shall be conclusive evidence of due delivery hereof by Guarantor and
acceptance hereof by Landlord, and that this Guaranty shall continue in full
force and effect, both as to guaranteed obligations and liabilities now existing
and/or those hereafter created.
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8. Guarantor hereby consents and agrees that, without any further notice
to, or consent or agreement of, Guarantor (a) Landlord make take, hold,
exchange, enforce, waive, surrender and/or release other guarantees, collateral
or security which further secure(s) payment and/or performance of this Guaranty
or the Lease, and (b) that any of the obligations, terms, covenants and
conditions contained in the Lease (including, but not limited to, Tenant's
obligations thereunder) may be renewed, altered, extended, changed, modified,
supplemented or released at Landlord's written direction, or with Landlord's
written consent, without in any manner affecting this Guaranty or releasing
Guarantor herefrom, and without the further consent of or notice to Guarantor,
and Guarantor shall continue to be liable hereunder to pay and perform pursuant
hereto notwithstanding any such renewal, alteration, extension, change,
modification, supplement or release, or the taking, holding, exchanging,
enforcing, waiving, surrender and/or release of such other guarantees,
collateral or security. Landlord may perfect or fail to perfect, or to continue
the perfection of, any lien or security interest without notice to,
consideration to or the consent of Guarantor, and without in any way releasing,
diminishing or affecting the absolute nature of Guarantor's obligations and
liabilities hereunder.
9. Guarantor hereby waives any and all legal requirements that Landlord,
or its successors or assigns, must institute any action or proceeding at law or
in equity, or obtain any judgment, or exhaust their rights, remedies and/or
recourses against Tenant or any other person or entity, or with respect to any
security for the obligations hereby guaranteed, as a condition precedent to
making any demand on, bringing an action against, or obtaining or enforcing any
judgment against, Guarantor upon this Guaranty, and/or that it join Tenant or
any other person or entity as a party to any such action. All remedies afforded
to Landlord, and its successors or assigns, by reason of this Guaranty, are
separate and cumulative remedies, and it is agreed that no one of such remedies,
whether or not exercised by Landlord, or its successors or assigns, shall be
deemed in exclusion of any of the other remedies available to Landlord or its
successors or assigns, at law, in equity, by statute, under contract, hereunder
or otherwise, and shall in no way limit or prejudice any such other remedies
which Landlord, or its successors or assigns, may have. Mere delay or failure to
act shall not preclude the exercise or enforcement of any rights and remedies
available to Landlord. Guarantor further waives any requirement that Landlord
demand or seek payment or performance by Tenant or by any other person or entity
of the amounts owing or the covenants to be performed under the Lease, whether
hereby guaranteed or not, as a condition precedent to bringing any action
against Guarantor upon this Guaranty, it being agreed that a failure to comply
with or perform the obligations, terms, covenants and conditions herein
guaranteed shall, without further act, make Guarantor liable as herein set
forth.
10. This Guaranty is an absolute, unconditional, present and continuing
guaranty of performance of the obligations recited in Paragraph 1 hereof.
Guarantor hereby expressly waives all defenses of Tenant pertaining to said
obligations, except for the defense of discharge by complete and irrevocable
performance, and except for such defenses as would constitute a defense to
Tenant's obligation under the Lease. Guarantor shall not be released (a) by any
act, omission or thing which might, but for this provision of this Guaranty, be
deemed a legal or equitable discharge of a surety or guarantor, (b) by any
defense based upon any statute or rule of law which provides that the
obligations of a surety or guarantor must be neither larger in amount nor in
other respects more burdensome than those of a principal, or (c) by reason of
any waiver, extension, renewal, modification, forbearance or delay by Landlord,
or its successors or assigns,
M-4
or its failure to proceed promptly or otherwise, and Guarantor hereby expressly
waives and surrenders any defense to liability hereunder based upon the
foregoing acts, omissions, things, statutes, rules, waivers, extensions,
modifications, forbearances, delays, obligations, agreements, or any of them,
except the defense of complete and irrevocable performance in full. Guarantor
also waives any defense arising by virtue of any disability, insolvency,
bankruptcy, defect in formation or continuation, lack of authority or power,
death, insanity, incompetence, liquidation or dissolution of, or any cessation
or limitation of liability from any cause (other than full and irrevocable
performance) of, Tenant, any member or agent thereof, or any other surety,
co-maker, endorser or guarantor. No change in the ownership of Tenant or in
Tenant's members shall affect or change the terms of this Guaranty or in any way
change or reduce the liability of Guarantor hereunder. This Guaranty shall
continue to be effective or be reinstated (as the case may be) if at any time
payment of all or any part of any sum payable pursuant to the Lease or hereunder
is rescinded or otherwise required to be returned upon the insolvency,
bankruptcy, dissolution, liquidation, or reorganization of Tenant, or upon or as
a result of the appointment of a receiver, intervener, custodian or conservator
of or trustee or similar officer for, or any substantial part of its property,
or otherwise, all as though such payment had not been made, regardless of
whether the recipient thereof contested the order requiring the return of such
payment.
11. Guarantor hereby expressly agrees that the liabilities and obligations
of Guarantor under this Guaranty shall not in any way be impaired or otherwise
affected by the institution by or against Tenant or any other person or entity
of any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or any other similar proceedings for relief under any bankruptcy
law or similar law for the relief of debtors and that any discharge of any of
the obligations and/or liabilities hereby guaranteed pursuant to any such
bankruptcy or similar law or other law shall not diminish, discharge or
otherwise affect in any way the obligations of Guarantor under this Guaranty,
and that upon the institution of any of the above actions, such obligations
shall be enforceable against Guarantor.
12. In the event that Guarantor shall advance or become obligated to pay
any sums or incurs any costs or expenses hereunder, or in the event that for any
reason Tenant is now or shall hereafter become indebted or obligated to
Guarantor, the amount of such sum, costs, expenses and such indebtedness or
obligation shall at all times be subordinated as to lien, time of payment and in
all other respects to the amounts owing to Landlord hereunder. Notwithstanding
any payment or payments made, or costs or expenses incurred, by Guarantor
hereunder, Guarantor shall not be entitled to be subrogated to any of the rights
of Landlord against Tenant or any other guarantor or any collateral security or
guaranty held by Landlord for the payment of the guaranteed obligation, nor
shall Guarantor seek or be entitled to seek any contribution or reimbursement
from Tenant or any other guarantor in respect of payments made, or costs or
expenses incurred, by Guarantor hereunder unless and until the Guaranteed
Obligations and any Enforcement Costs shall have been paid in full. Except as
otherwise set forth herein, Guarantor shall have no right to participate in any
way in the right, title or interest of Landlord in the Premises, or to receive
payments from Tenant upon any indebtedness or obligation, notwithstanding any
payments made, or costs or expenses incurred, by Guarantor hereunder, all rights
of reimbursement, indemnification, subrogation and participation being hereby
expressly waived and released with respect to any such payments, costs and
expenses. Guarantor agrees
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that, following any default or event of default under the Lease, and until the
Guaranteed Obligations thereunder shall have been paid and/or performed in full,
Guarantor will not accept any payment or satisfaction of any kind of any
indebtedness or obligation of Tenant to Guarantor. Further, as long as Guarantor
remains liable hereunder, Guarantor agrees that, if, following any default or
event of default under the Lease, Guarantor should receive any payment,
satisfaction or security for any indebtedness or obligation of Tenant to
Guarantor, the same shall be delivered to Landlord in the form received,
endorsed or assigned as may be appropriate, for application on account of or as
security for the Guaranteed Obligations thereunder, and, until so delivered,
shall be held in trust for Landlord as security for said Guaranteed Obligations.
In addition, at any time, in the event of any receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization or
arrangement with creditors (whether or not pursuant to bankruptcy laws), sale of
all or substantially all of the assets, dissolution, liquidation or any other
marshaling of the assets and liabilities of Tenant, Landlord shall be entitled
to performance in full of the obligations hereby guaranteed prior to the payment
of all or any part of any indebtedness of Tenant to Guarantor, and Guarantor
will, at the request of Landlord, file any claim, proof of claim or other
instrument of similar character necessary to enforce the obligations of Tenant
in respect of such indebtedness and hereby assigns to Landlord, and will hold in
trust for Landlord, any and all monies, dividends or other assets received in
any such proceeding on account of such obligations, unless and until the
obligations hereby guaranteed shall be irrevocably performed in full. In the
event Guarantor fails to perform said obligations, it shall pay and deliver said
monies, dividends or other assets to Landlord.
13. Guarantor hereby warrants and represents unto Landlord that:
(a) there are no actions, suits or proceedings pending or, to the
knowledge of Guarantor, threatened against or affecting Guarantor, which will
have a material adverse impact upon Guarantor's ability to perform its
obligations hereunder, or involving the validity or enforceability of this
Guaranty, at law or in equity; and Guarantor is not in default under any order,
writ, injunction, decree or demand of any court or any administrative body
having jurisdiction over Guarantor;
(b) any and all balance sheets, net worth statements, income and
expense statements, cash flow statements and other financial statements of, and
other financial statements and data relating to, Guarantor previously or
hereafter delivered to Landlord fairly and accurately present, or will fairly
and accurately present, the financial condition of Guarantor as of the dates
thereof, since the dates of those most recently delivered, there has been no
material adverse change in the financial condition of Guarantor; Guarantor has
disclosed all events, conditions, and facts known to Guarantor which are more
likely than not to have a material adverse effect on the financial condition of
Guarantor; and neither this Guaranty nor any document, financial statement,
financial or credit information, certificate or statement relating to Guarantor
and referred to herein, or furnished to Landlord by Guarantor contains, or will
contain, any untrue statement of a material fact or omits, or will omit, a
material fact;
(c) Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York, and has all power,
authority, permits, consents, authorizations and licenses necessary to carry on
its business, and to execute, deliver
M-6
and perform this Guaranty and any other documents or instruments in connection
therewith which it is required to execute; all resolutions of the board of
directors of Guarantor necessary to authorize the execution, delivery and
performance of this Guaranty and such other documents or instruments have been
duly adopted and are in full force and effect; and this Guaranty and such other
documents or instruments have been duly authorized, executed and delivered by
and on behalf of Guarantor so as to constitute this Guaranty and such other
documents or instruments the valid and binding obligation of Guarantor,
enforceable in accordance with their terms.
(d) The execution, delivery, and performance by Guarantor of this
Guaranty does not and will not contravene or conflict with (i) any law, order,
rule, regulation, writ, injunction or decree now in effect of any government,
governmental instrumentality court having jurisdiction over Guarantor, or (ii)
any contractual restriction binding on or affecting Guarantor or Guarantor's
property or assets which may adversely affect Guarantor's ability to fulfill its
obligations under this Guaranty.
14. The validity, construction and enforceability of this Guaranty shall
be governed by the internal laws of the State of New York, without giving effect
to conflict of laws principles thereof. Whenever possible, each provision of
this Guaranty and any other statement, instrument or transaction contemplated
hereby or relating hereto shall be interpreted in such manner as to be effective
and valid under such applicable law, but, if any provision of this Guaranty or
any other statement, instrument or transaction contemplated hereby or relating
hereto or any right or remedy hereby guaranteed or provided shall be held to be
unenforceable, prohibited or invalid under applicable law as to any person,
party or entity or under any circumstances, for any reason, such provision,
right or remedy shall be ineffective only to the extent of such
unenforceability, prohibition or invalidity, and only with respect to such
person, party, entity or circumstances, without invalidating or limiting or
preventing the enforcement of the remainder of such provision, right or remedy,
or the remaining provisions of this Guaranty, or any other right, remedy,
statement, instrument or transaction contemplated hereby or relating hereto, as
to any other person, party or entity or any other circumstances.
15. Notwithstanding any other provision or provisions herein contained, no
provision of this Guaranty shall require or permit the collection from Guarantor
of interest in excess of the maximum rate or amount, if any, which Guarantor may
be required or permitted to pay by any applicable law.
16. This Guaranty shall remain in full force and effect until payment
and/or performance of the Guaranteed Obligations in full, and thereafter, this
Guaranty shall be discharged, null, void and of no further force and effect.
Upon request by Guarantor, Landlord will deliver to Guarantor written
confirmation of the discharge of the obligations and liabilities of Guarantor
hereunder, and Landlord will return to Guarantor the original counterpart of
this Guaranty. This instrument shall inure to the benefit of Landlord and its
successors, assigns, and shall bind Guarantor and Guarantor's successors and
assigns. The obligations of Guarantor under this Guaranty shall be enforceable
in all events against Guarantor, its successors and assigns, and each of them.
M-7
17. This Guaranty may be waived, modified, amended, terminated or
discharged only explicitly in a writing signed by Landlord and Guarantor. A
waiver so signed shall be effective only in the specific instance and for the
specific purpose given.
18. Any notice, demand or request by Landlord to Guarantor or from
Guarantor to Landlord shall be in writing and shall be deemed to have been duly
given or made if either delivered personally or if mailed by certified or
registered mail addressed to the address set forth below (or at the correct
address of any assignee of Landlord), except that mailed written notices shall
not be deemed given or served until three (3) days after the date of mailing
thereof:
(a) If to Guarantor:
The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:________________________________
with a copy to:
The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(b) If to Landlord:
[__________________________]
Xxx XxxxxXxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx. Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
M-8
19. If (i) this Guaranty is placed in the hands of an attorney for
collection or is collected through any legal proceeding; (ii) an attorney is
retained to represent Landlord in any bankruptcy, reorganization, receivership,
or other proceedings affecting creditors' rights and involving a claim under
this Guaranty; (iii) an attorney is retained to provide advice or other
representation with respect to this Guaranty; or (iv) an attorney is retained to
represent Landlord in any proceedings whatsoever in connection with this
Guaranty, then each Guarantor shall pay to Landlord upon demand all attorney's
fees, costs and expenses, including, without limitation, court costs, filing
fees, recording costs, expenses of foreclosure, title insurance premiums, survey
costs, minutes of foreclosure, and all other costs and expenses incurred in
connection therewith (all of which are referred to herein as "ENFORCEMENT
COSTS"), in addition to all other amounts due hereunder, regardless of whether
all or a portion of such Enforcement Costs are incurred in a single proceeding
brought to enforce this Guaranty.
20. Guarantor hereby irrevocably submits to personal jurisdiction in the
state of New York, City and County of New York for the enforcement of this
Guaranty and waives any and all personal rights to object to such jurisdiction
for the purposes of litigation to enforce this Guaranty. Guarantor hereby
consents to the jurisdiction of either any court in such city, county and state
or (in a case involving diversity of citizenship) the United States District
Court located there, in any action, suit, or proceeding which Landlord may at
any time wish to file in connection with this guaranty or any related matter.
Guarantor hereby agrees that an action, suit, or proceeding to enforce this
Guaranty may be brought in any state or federal court therein located and hereby
waives any objection which such guarantor may have to the laying of the venue of
any such action, suit, or proceeding in any such court; provided, however, that
the provisions of this paragraph shall not be deemed to preclude Landlord from
filing any such action, suit, or proceeding in any other appropriate forum.
21. This Guaranty may be executed in any number of duplicate originals and
each such duplicate original shall be deemed to constitute but one and the same
instrument. Any signature page of this Guaranty may be detached from any
duplicate original of this Guaranty without impairing the legal effect of any
signatures thereon and may be attached to another duplicate original of this
Guaranty identical in form hereto but having attached to it one or more
additional signature pages.
22. Guarantor and Landlord hereby waive any right to a trial by jury in
any action or proceeding to enforce or defend any right under this Guaranty or
relating thereto or arising from the relationship which is the subject of this
Guaranty and agree that any such action or proceeding shall be tried before a
court and not before a jury.
Dated: ________________________
THE NEW YORK TIMES COMPANY
By: ____________________________________
Name:
Title:
M-9
EXHIBIT N
SECURITY AND SAFETY PLAN
The Unit Owners will use a positive identification system (each at their
own election and at their sole cost and expense) when admitting employees and
guests into elevator lobbies.
The Unit Owners will negotiate in good faith a security plan. If there is
a dispute in establishing the lobby security plan, NYTC Unit Owner may establish
security procedures as long as they don't interfere with the use or enjoyment of
the FC Collective Unit or the Retail Unit or increase any FC Unit Owner's costs
beyond such FC Unit Owner's proportionate share of the cost to provide security
at the Building which is customarily provided in class A office buildings in
Times Square. The FC Unit Owner(s) and Retail Unit Owner, as the case may be,
shall have the right to maintain a security system independent from that of the
NYTC Unit Owner and the tenants within the FC Collective Unit or Retail Unit, as
the case may be, shall also have the right to install their own independent
security systems.
N-1
EXHIBIT 0
FORM OF NYTC WAIVER AND ESTOPPEL LETTER
[Date]
[FC Unit Owner]
[address]
[prospective purchaser]
[address]
Re: Declaration of Leasehold Condominium (the "CONDOMINIUM
DECLARATION") dated as of __________ with respect
to The New York Times Building Condominium
Ladies and Gentlemen:
Reference is made to [Section 3(a)/Section 3(b)] of Article XX of
the Condominium Declaration. Capitalized terms used herein without definition
shall have the meanings ascribed to them in the Condominium Declaration.
The undersigned hereby confirms that NYTC has waived its right of
first [refusal/offer] pursuant to said [Section 3(a)/Section 3(b)] of the
Condominium Declaration only with respect to the [Section 3(a) Term
Sheet/Section 3(b)] Term Sheet dated as of ________________ attached hereto as
Exhibit A. This shall not constitute a waiver of the undersigned's right to
receive revised [Section 3(a)/Section 3(b)] Term Sheets nor its right to
participate in subsequent Sales pursuant to Sections 3(a) and 3(b) of the
Condominium Declaration.
THE NEW YORK TIMES COMPANY
By: ____________________________________
Name:
Title:
O-1
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of
the day and year first above written.
THE NEW YORK TIMES COMPANY
By: ____________________________________
Name:
Title:
K-lO
EXHIBIT E
Intentionally Omitted
EXHIBIT F
FORM OF CONSTRUCTION GUARANTY (ss. 1.1(a)(cxvi), (cxcviii))
THIS CONSTRUCTION GUARANTY (this "GUARANTY"), made as of the ___ day
of _________, 200_, by [THE NEW YORK TIMES COMPANY][FOREST CITY ENTERPRISES,
INC.][ING VASTGOED B B.V.], a [corporation] organized under the laws of the
[State of New York][State of Ohio][Netherlands][, having an address at [229
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel] [1100
Xxxxxxxx Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, Attention: General
Counsel][ING address] ("GUARANTOR"), to 42ND ST. DEVELOPMENT PROJECT, INC., a
corporation organized under the laws of New York, having an address at 000 Xxxxx
Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LANDLORD").
W I T N E S S E T H:
WHEREAS, The New York Times Building LLC ("TENANT"), an affiliate of
Guarantor, is the tenant under that certain
Agreement of Lease dated as of
December __,2001 (the "LEASE"; capitalized terms used herein and not otherwise
defined herein having the meanings ascribed thereto in the Lease);
WHEREAS, Tenant is required to construct and complete Tenant's
Construction Work in accordance with the requirements of the Lease, including
without limitation, SECTION 6.6 of the Lease and with respect to Core and Shell
Punchlist items (the "GUARANTIED WORK");
WHEREAS, it is an obligation under the Lease that Tenant deliver to
Landlord this Guaranty; and
WHEREAS, Guarantor will derive substantial direct and indirect
benefit from the transactions contemplated by the Lease.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby covenants and agrees as follows:
1. COMPLETION OF GUARANTIED WORK. Subject to SECTION 16 hereof, Guarantor
does hereby unconditionally and irrevocably guaranty that: (a) Tenant shall
construct and complete the Guarantied Work in accordance with the requirements
of the Lease, including, but not limited to, the DUO; (b) Tenant shall fully and
punctually pay and discharge any and all costs, expenses and liabilities for or
in connection with the Guarantied Work, including, but not limited to, the costs
of constructing and equipping the Guarantied Work, as the same become due and
payable; (c) the Guarantied Work shall be and remain free and clear of all
liens, encumbrances, chattel mortgages, conditional bills of sale and other
charges of any and all persons, firms, corporations or other entities furnishing
materials, labor or services in constructing or completing the Guarantied Work
(all such obligations set forth in clauses (a) through (c) above collectively,
the "GUARANTIED OBLIGATIONS"); and (d) Guarantor agrees to pay on demand any and
all claims, losses, suits, costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements, incurred by Landlord in enforcing
or collecting any or all of the Guarantied Obligations under this Guaranty or
the Lease (collectively, the "LANDLORD'S EXPENSES"). This is not a guaranty of
payment of any monetary indebtedness of Tenant to Landlord evidenced by a note
or other similar instrument.
F-1
2. GUARANTY ABSOLUTE. (a) Subject to Section 16 hereof, Guarantor
guaranties that the Guarantied Obligations will be paid or performed strictly in
accordance with the Lease and this Guaranty, regardless of any law, statute,
rule, regulation, decree or order now or hereafter in effect in any jurisdiction
affecting or purporting to affect in any manner any of such terms or the rights
or remedies of Landlord with respect thereto.
(b) Any payment or payments made by Tenant or any other person or
received or collected by Landlord from Tenant or any other person by virtue of
any action or proceeding or any other set-off or appropriation or application at
any time or from time to time in respect of any obligations or liabilities of
Tenant under the Lease may be applied by Landlord in satisfaction of such
obligations and liabilities in such order as Landlord may determine, and no
application of such payment or payments to satisfaction of indebtedness,
obligations or liabilities other than the Guarantied Obligations shall discharge
in any manner any obligations of Guarantor hereunder.
(c) The liability of Guarantor under this Guaranty shall be absolute
and unconditional, and shall not be affected, released, terminated, discharged
or impaired, in whole or in part, by, and Landlord may proceed to exercise any
right or remedy hereunder irrespective of, any or all of the following:
(i) any lack of genuineness, regularity, validity, legality or
enforceability, or the voidability of, the Lease or any other agreement or
instrument relating thereto;
(ii) the failure of Landlord to exercise or to exhaust any right or
remedy or take any action against Tenant or any other security available
to it;
(iii) any amendment or modification of the terms of the Lease;
(iv) any change in the time, manner or place of payment or
performance, of all or any of the Guarantied Obligations or any extensions
of time for payment, performance or observance, whether in whole or in
part, of the terms of the Lease on the part of Tenant to be paid,
performed or observed, as applicable;
(v) any amendment or waiver of, or any assertion or enforcement or
failure or refusal to assert or enforce, or any consent or indulgence
granted by Landlord with respect to a departure from, any term of the
Lease, including, without limiting the generality of the foregoing, the
waiver by Landlord of any default of Tenant, or the making of any other
arrangement with, or the accepting of any compensation or settlement from,
Tenant;
(vi) any failure or delay of Landlord to exercise, or any lack of
diligence in exercising, any right or remedy with respect to the Lease or
this Guaranty;
(vii) any dealings or transactions between Landlord and Tenant,
whether or not Guarantor shall be a party to or cognizant of the same;
(viii) any bankruptcy, insolvency, assignment for the benefit of
creditors, receivership, trusteeship or dissolution of or affecting
Tenant;
(ix) any exchange, surrender or release, in whole or in part, of any
security which may be held by Landlord at any time for or under the Lease
or in respect of the Guarantied Obligations;
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(x) any other guaranty now or hereafter executed by Guarantor or any
other guarantor or the release of any other guarantor from liability for
the payment, performance or observance of any of the Guarantied
Obligations or any of the terms of the Lease on the part of Tenant to be
paid, performed or observed, as applicable, whether by operation of law or
otherwise[; provided, however, that if, without the written consent of
Guarantor, Landlord releases, in writing, [The New York Times Company]
[Forest City Enterprises, Inc.] from any of its obligations under that
certain Construction Guaranty by [The New York Times Company][Forest City
Enterprises, Inc.]to Landlord, dated as of the date hereof, then Guarantor
shall be deemed released from the Guarantied Obligations, but only to the
same extent and on the same terms as Landlord shall have released [The New
York Times Company][Forest City Enterprises, Inc.], as aforesaid];
(xi) any rights, powers or privileges Landlord may now or hereafter
have against any person, entity or collateral in respect of the Guarantied
Obligations;
(xii) Landlord's consent to any assignment or successive assignments
of the Lease by Tenant;
(xiii) any other circumstance which might in any manner or to any
extent constitute a defense available to Tenant (except performance of the
obligations in question), or vary the risk of Guarantor, or might
otherwise constitute a legal or equitable discharge or defense available
to a surety or guarantor, whether similar or dissimilar to the foregoing;
(xiv) any notice of the creation, renewal or extension of the
Guarantied Obligations and notice of or proof of reliance by Landlord upon
this Guaranty or acceptance of the Guaranty; or
(xv) any change, restructuring or termination of the structure or
existence of Tenant;
(xvi) whether occurring before or after any default by Tenant under
the Lease, and with or without further notice to or assent from Guarantor.
(d) Notwithstanding anything to the contrary contained in Section 12
hereof, this Guaranty shall continue to be effective or be reinstated, as the
case may be, and the rights of Landlord hereunder shall continue with respect
to, any Guarantied Obligation (or portion thereof) at any time paid by Tenant
which shall thereafter be required to be restored or returned by Landlord upon
the insolvency, bankruptcy or reorganization of Tenant, or for any other reason,
all as though such Guarantied Obligation (or portion thereof) had not been so
paid or applied.
(e) Notwithstanding anything to the contrary contained herein, the
obligations of Guarantor hereunder with respect to payment of Landlord's
Expenses and satisfaction of the Guarantied Obligations shall survive the
expiration or earlier termination of the Lease.
(f) If Guarantor shall fail to perform the Guarantied Obligations in
accordance with the terms hereof, Landlord may, but shall not be obligated to,
but subject to the provisions of Section 16 below, take such action personally
or by its agents or attorneys, without any notice, demand, presentment or
protest (each and all of which are hereby waived), as Landlord deems necessary
or advisable to protect and enforce Landlord's rights and remedies hereunder,
including,
F-3
but not limited to, the following actions, each of which may be pursued
concurrently or otherwise, at such time and in such order as Landlord, in its
sole discretion, may determine, without impairing or otherwise affecting its
other rights or remedies hereunder, at law or in equity:
(i) perform or cause the performance of any construction of the
Tenant Construction Work substantially in conformity with the applicable
Final Plans and Specifications, with such modifications thereto as Tenant
shall have proposed and Landlord shall have approved in accordance with
the terms of the Lease;
(ii) pay, remove, release, discharge, bond or settle or cause the
payment, removal, release, discharge, bonding or settlement of any lien,
claim or demand, the removal, release, discharge, bonding, settlement or
payment of which is guaranteed hereunder; and
(iii) cause compliance with all Legal Requirements which must be
complied with in connection with the performance of the Tenant
Construction Work.
In the event that Landlord shall perform any of the acts described
in this Section 2(f), Guarantor, upon demand by Landlord, shall, subject to the
provisions of Section 16 hereof, reimburse Landlord for the amount of the sums
paid and costs and expenses incurred by Landlord in connection therewith,
including, without limitation, reasonable attorneys' fees and disbursements.
(g) Subject to the provisions of Section 16 hereof, Landlord may
proceed to protect and enforce any or all of its rights under this Guaranty by
suit in equity or action at law, whether for specific performance of any
covenants or agreements contained in this Guaranty or otherwise, or to take any
action authorized or permitted under applicable law, and shall be entitled to
require and enforce the performance of all acts and things required to be
performed hereunder by Guarantor. Subject to the provisions of Section 16
hereof, each and every remedy of Landlord shall, to the extent permitted by law,
be cumulative and shall be in addition to any other remedy given hereunder or
now or hereafter existing at law or in equity. Guarantor shall indemnify and
hold Landlord free and harmless from and against any and all loss, damage, cost,
expense, injury, or liability Landlord may suffer or incur in connection with
the exercise of its rights under this Guaranty or the performance of the
Guarantied Obligations.
3. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Landlord as follows:
(a) Guarantor is a duly organized, validly existing corporation and
in good standing under the laws of the State of [___], and has full power,
authority and legal right to execute and deliver this Guaranty and to perform
fully and completely all of its obligations hereunder.
(b) The execution, delivery and performance of this Guaranty by
Guarantor has been duly authorized by all necessary corporate action, and will
not violate any provision of any law, regulation, order or decree of any
governmental authority, bureau or agency or of any court binding on Guarantor,
or any provision of the charter, bylaws or code of regulations of Guarantor, or
of any contract, undertaking or agreement to which Guarantor is a party or which
is binding upon Guarantor or any of its property or assets, and will not result
in the imposition or creation of any lien, charge or
F-4
encumbrance on, or security interest in. any of its property or assets pursuant
to the provisions of any of the foregoing.
(c) This Guaranty has been duly executed and delivered by a duly
authorized officer of Guarantor and constitutes a legal, valid and binding
obligation of Guarantor, enforceable against it in accordance with its terms,
subject as to enforcement of remedies to any applicable bankruptcy,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights generally and doctrines of equity affecting the availability of specific
enforcement as a remedy.
(d) All necessary resolutions, consents, licenses, approvals and
authorizations of any person or entity required in connection with the
execution, delivery and performance of this Guaranty have been duly obtained and
are in full force and effect.
(e) There are no conditions precedent to the effectiveness of this
Guaranty that have not been either satisfied or waived.
(f) The Guarantor has, independently and without reliance upon the
Landlord and based on such documents and information as it has deemed
appropriate, in its own credit analysis and decision to enter into this
Guaranty.
(g) Guarantor is the holder, directly or indirectly, of at least
______ percent (___%) of the beneficial interests of Tenant.
(h) Guarantor has received, reviewed and understood a true, correct
and complete copy of the Lease and all other Project Documents (as defined in
the Lease).
(i) There are no actions, suits or proceedings pending or, to the
knowledge of Guarantor, threatened against or affecting Guarantor, which will
have a material adverse impact upon Guarantor's ability to perform its
obligations hereunder, or involving the validity or enforceability of this
Guaranty, at law or in equity; and Guarantor is not in default under any order,
writ, injunction, decree or demand of any court or any administrative body
having jurisdiction over Guarantor.
4. WAIVERS. Guarantor expressly waives the following:
(a) notice of acceptance of this Guaranty and of any change in the
financial condition of Tenant;
(b) promptness, diligence, presentment and demand for payment or
performance of any of the Guarantied Obligations;
(c) protest, notice of dishonor, notice of default and any other
notice with respect to any of the Guarantied Obligations and/or this Guaranty;
(d) any demand for payment under this Guaranty;
(e) the right to interpose all substantive and procedural defenses
of the law of guaranty, indemnification and suretyship, except the defenses of
prior payment or performance by Tenant of the Guarantied Obligations which
Guarantor is called upon to pay or perform under this Guaranty;
F-5
(f) all rights and remedies accorded by applicable law to
guarantors, or sureties, including, without being limited to, any extension of
time conferred by any law now or hereafter in effect:
(g) the right to trial by jury in any action or proceeding of any
kind arising on, under, out of, or by reason of or relating, in any way, to this
Guaranty or the interpretation, breach or enforcement hereof;
(h) the right to interpose any set-off or counterclaim of any nature
or description in any action or proceeding arising hereunder or with respect to
this Guaranty; and
(i) any right or claim of right to cause a marshaling of the assets
of Tenant or to cause Landlord to proceed against Tenant and/or any collateral
or security held by Landlord at any time or in any particular order.
5. BANKRUPTCY. Notwithstanding anything to the contrary herein,
Guarantor's liability shall extend to all amounts or other obligations which
constitute part of the Guarantied Obligations and would be owed by, or required
to be performed by, Tenant under the Lease but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving Tenant. Without limiting the
foregoing, neither Guarantor's obligation to make payment or otherwise perform
in accordance with this Guaranty nor any remedy for the enforcement thereof
shall be impaired, modified, changed, stayed, released or limited in any manner
by any impairment, modification, change, release, limitation or stay of the
liability of Tenant or its estate in bankruptcy or any remedy for the
enforcement thereof, resulting from the operation of any present of future
provision of the United States bankruptcy laws or other statute or from the
decision of any court interpreting any of the same.
6. CURRENCY OF PAYMENTS. Any and all amounts required to be paid by
Guarantor hereunder shall be paid in lawful money of the United States of
America and in immediately available funds to Landlord. Guarantor agrees that
whenever, at any time, or from time to time, it shall make any payment to
Landlord on account of its liability hereunder, it will notify Landlord in
writing that such payment is made under this Guaranty for that purpose.
7. WAIVER OF RIGHTS AGAINST TENANT; SUBORDINATION. (a) Guarantor hereby
waives all rights of subrogation and any other claims that it may now or
hereafter acquire against either Tenant or any insider that arise from the
existence, payment, performance or enforcement of Guarantor's obligations under
this Guaranty or any other documents executed in connection herewith
(collectively, the "GUARANTY DOCUMENTS"), including, without limitation, any
right of reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of Landlord against either Tenant or
any insider, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from either against Tenant or any insider, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right.
(b) If any amount shall be paid to Guarantor in violation of the
preceding subsection (a), such amount shall be held in trust for the benefit of
Landlord and shall forthwith be paid to Landlord to be credited and applied to
all amounts payable under this Guaranty in accordance with the terms of the
Lease and the Guaranty Documents, or to be held as collateral for any amounts
F-6
payable under this Guaranty thereafter arising. Guarantor acknowledges that it
has and will receive direct and indirect benefits from the performance of the
Guarantied Work and that the waiver set forth in this subsection is knowingly
made in contemplation of such benefits.
(c) All indebtedness, liabilities and obligations of Tenant to
Guarantor, whether secured or unsecured and whether or not evidenced by any
instrument, now existing or hereafter created or incurred, are and shall be
subordinate and junior in right of payment to the Guarantied Obligations.
8. AMENDMENT IN WRITING. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by Guarantor therefrom shall in any event
be effective unless the same shall be in writing and signed by Landlord, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
9. REMEDIES. The obligations of Guarantor under this Guaranty are
independent of Tenant's obligations under the Lease, and a separate action or
actions may be brought and prosecuted against the Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against Tenant or
whether Tenant is joined in any such action or actions. Any one or more
successive and/or concurrent actions may be brought hereon against Guarantor
either in the same action, if any, brought against Tenant or in separate
actions, as often as Landlord, in its sole discretion, may deem advisable.
10. CERTIFIED STATEMENT AND FINANCIAL STATEMENTS. Guarantor agrees that it
will, at any time and from time to time, within ten (10) days following request
by Landlord (a) execute and deliver to Landlord a statement certifying that this
Guaranty is unmodified and in full force and effect (or if modified, that the
same is in full force and effect as modified and stating such modifications) and
(b) deliver to the Public Parties the then most recently available financial
statements of Guarantor unless Guarantor is a publicly listed company and is
current on all of its public financial filings. Promptly after the full and
complete discharge of all of the Guarantied Obligations, Landlord shall
acknowledge in writing to Guarantor that this Guaranty is of no further force or
effect; PROVIDED, HOWEVER, that Landlord's failure to deliver such
acknowledgement shall not affect the status of such discharge.
11. NOTICES. All notices and other communications which may be or are
desired to be given hereunder shall be in writing and, if to Guarantor, mailed
or delivered to it, addressed to it at the address first set forth above with a
copy to [Xxxxxxx Berlin Shereff Xxxxxxxx LLP, Chrysler Building, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx][Xxxxxx Xxxx &
Xxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxx,
Esq.][Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxxx, Esq.] and if to Landlord, mailed or
delivered to it, addressed to it at the address first set forth above,
Attention: General Counsel, with a copy to:
(i) New York City Economic Development Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
(ii) New York City Law Department
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
F-7
Attn: Chief, Economic Development Division
(iii) Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxxx, Esq. (3578/13)
(iv) Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxxx, Esq.
(v) New York State Urban Development Corporation
d/b/a Empire State Development Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: 42nd St. Development Project, Inc.
or as to each party at such other address as shall be designated by such party
in a written notice to each other party complying as to delivery with the terms
of this SECTION. All such notices and other communications shall be effective
when deposited in the mails addressed as aforesaid. No notice, demand, request
or other communication hereunder shall be effective unless given as aforesaid.
12. TERMINATION OF GUARANTY; SUCCESSORS AND ASSIGNS. This Guaranty shall:
(a) remain in full force and effect until the date on which the Guarantied Work
is complete and has been paid for in accordance with SECTION 1 hereof and the
Guarantied Obligations are otherwise fully satisfied; (b) be binding upon
Guarantor, its successors and permitted assigns; and (c) inure to the benefit of
and be enforceable by Landlord and its successors, transferees and assigns or by
any person to whom Landlord transfers, conveys or leases the Land (and to the
City of New York as holder of a reversionary estate in the property demised by
the Lease). Wherever in this Guaranty reference is made to Landlord or Tenant,
the same shall be deemed to refer also to the then successor or assign of
Landlord or Tenant. Notwithstanding anything herein to the contrary. Guarantor
shall not have the right to assign this Guaranty or delegate its obligations
without the prior written consent of Landlord, which may be withheld in
Landlord's sole and absolute discretion, and any purported assignment in
violation of the foregoing clause shall be null and void as against Landlord.
13. GOVERNING LAW. This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements made
and to be performed entirely within said state.
14. SEVERABILITY. If any term, covenant, condition or provision of this
Guaranty or the application thereof to any circumstance or to Guarantor shall be
invalid or unenforceable to any extent, the remaining terms, covenants,
conditions and provisions of this Guaranty or the application thereof to any
circumstances or to Guarantor other than those as to which any term, covenant,
condition or provision is held invalid or unenforceable, shall not be affected
thereby and each remaining term, covenant, condition and provision of this
Guaranty shall be valid and shall be enforceable to the fullest extent permitted
by law.
F-8
15. HEADINGS. The headings used in this Guaranty are for convenience only
and are not to be considered in connection with the interpretation or
construction of this Guaranty.
16. CONDITION TO GUARANTOR'S OBLIGATIONS. If the No Financing Out (as
hereinafter defined) has occurred, then for all purposes hereunder the term
"Guarantied Obligations" shall thereafter mean, and Guarantor shall cause Tenant
to, and shall unconditionally and irrevocably guaranty that Tenant shall,
perform the following actions: (i) immediately following receipt by Tenant of a
Termination Notice under the Lease, Tenant shall peaceably and quietly leave the
Property, and shall surrender and yield up unto Landlord the Property free and
clear of (A) all lettings and occupancies, other than Subleases or any
management agreement with respect to which Landlord has entered into a
nondisturbance agreement, and (B) all agreements, easements, encumbrances or
other liens and other charges, including liens, chattel mortgages, conditional
bills of sale and other charges of any person furnishing materials, labor or
services in connection with the Guarantied Work, but other than the Permitted
Encumbrances and those created or consented to in writing by Landlord; (ii) for
at least one hundred twenty (120) days after Tenant's surrender of the Property
to Landlord as aforesaid, Tenant shall not file a voluntary petition under any
bankruptcy or insolvency law or under the reorganization provisions of any law
of like import; and (iii) within ninety (90) days after written demand therefor,
Tenant shall commence, and thereafter prosecute with diligence and continuity to
completion, demolition and removal of the Improvements to the extent constructed
by or on behalf of Tenant or any Person claiming by or through Tenant and the
repair of any damage to the Project caused thereby, and if Tenant and Guarantor
shall fail to accomplish the same, Guarantor shall pay to Landlord the actual
cost incurred by or on behalf of Landlord for demolishing and removing the
Improvements and repairing any damage to the Project caused thereby. In the
event that Landlord shall elect to cause Tenant, through Guarantor, to demolish
the Improvements as provided in clause (iii) above, Landlord must make such
election and so notify Tenant and Guarantor within three (3) years following the
date Landlord or its nominee shall have taken possession of the Property.
Tenant's and Guarantor's obligations under clause (iii) above are subject to any
rights of Construction Lender (as hereinafter defined) under the Lease, or any
other agreement entered into with Landlord, with respect to completion of the
Improvements.
(b) The term "NO FINANCING OUT" shall mean that (i) Tenant has
obtained a construction financing in respect of the development of the New
Building (a "CONSTRUCTION LOAN") from a construction lender that is not
affiliated with Tenant or any member thereof (a "CONSTRUCTION LENDER"), (ii)
Construction Lender does not fund the Construction Loan other than by reason of
a default of Tenant or any affiliate thereof under, or failure to meet any
pre-conditions to funding (except for pre-conditions to the initial funding) set
forth in, the agreements and other documents relating to the Construction Loan,
and (iii) following the Construction Lender's decision not to fund the
Construction Loan as aforesaid, Tenant elects not to complete the Guarantied
Work (which election not to complete, if not made within one hundred twenty
(120) days of the aforementioned decision by Construction Lender, shall be
deemed to be made by Tenant); the term "No Financing Out" shall expressly
exclude any election by Tenant to provide personal funds of Tenant or one or
more of Tenant's members sufficient for the complete construction of the New
Building in accordance with the terms and conditions of ARTICLE VI hereof.
[Signature Page Follows]
F-9
IN WITNESS WHEREOF, Guarantor has executed and delivered this
Guaranty as of the date first above written.
GUARANTOR:
[THE NEW YORK TIMES COMPANY]
[FOREST CITY ENTERPRISES, INC.]
[ING VASTGOED B B.V.]
By: ____________________________________
Name:
Title:
F-10
EXHIBIT G
THE LAND (ss. 1.1(a)(clix))
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 xx Xxxx 0xxx 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 40tb Street, 400 feet to the
point or place of BEGINNING.
Being the property located at and known as Block 1012, Xxxx 0, 0, 0, 00,
00, 00, 00, 00, 00 and part of 15 on the Tax Assessment Map of the County of New
York.
EXHIBIT H
Intentionally Omitted
EXHIBIT I
Intentionally Omitted
EXHIBIT J
FORM OF ARCHITECT'S CERTIFICATE (ss. 3.O1(a)(i)(B)(1))
[ARCHITECT'S LETTERHEAD]
as of _______, 200_
XXX XXXX
00XX XX. DEVELOPMENT PROJECT, INC.
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
THE NEW YORK TIMES BUILDING LLC
c/o The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
c/o Forest City Xxxxxx
One Metro Tech Center, North
Brooklyn, New York 11201
Attention: General Counsel
INGREDUS Site 8 South LLC
c/o Clarion Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxxxxx
SITE 8 SOUTH -- ARCHITECT'S CERTIFICATE
Ladies and Gentlemen:
Reference is made to that certain
Agreement of Lease (as
hereinbefore and hereafter may be amended, the "LEASE"), dated as of December
__, 2001, by and between 42nd St. Development Project, Inc. ("LANDLORD") and The
New York Time Building LLC ("TENANT"). Capitalized terms used herein but not
defined herein shall have the meanings set forth in the Lease.
Pursuant to Section 3.1(a)(i)(B)(1) of the Lease, the undersigned
hereby certifies to Landlord and Tenant that the Discretionary Inside Mechanical
Space represented by the Final Plans and Specifications is equal to _____ Square
Feet as measured in accordance with the definition of Square Feet set forth in
the Lease. The foregoing certifications are made on the assumption that all
space set forth on the Final Plans and Specifications has been actually built.
Yours Truly,
[Architect's signature block]
cc: The City of New York
President -- New York City Economic Development Corporation
Chief, Economic Development Division -- New York City Law Department
Xxxxx X. Xxxxx, Esq. -- Shearman & Sterling
Xxx Xxxxxxxx, Esq. -- Pillsbury Winthrop LLP
42nd St. Development Project, Inc.-- New York State
Urban Development Corporation
Director of Real Estate -- The New York Times Company
Xxxxxx X. Xxxxxxx, Esq. -- Xxxxxxx Berlin Shereff Xxxxxxxx LLP
Xxxxx X. Xxxx, Esq. -- Xxxxxx Xxxx Xxxxxx LLP
Xxxxxxxx X. Xxxxxxx, Esq. -- Skadden, Arps, Slate, Xxxxxxx & Xxxx
Xxxxxx Xxxxxxxxxx -- INGREDUS Site 8 South LLC
J-2
EXHIBIT K
Intentionally Omitted
EXHIBIT L
FORM OF NOTICE OF UNREIMBURSED ESAC (ss. 3.1(b)(ii))
THE NEW YORK TIMES BUILDING LLC
c/o The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as of ______, 200_ [each PILOT payment date]
XXX XXXX
00xx Xx. Development Project, Inc.
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
SITE 8 SOUTH -- UNREIMBURSED ESAC
Ladies and Gentlemen:
Reference is made to that certain
Agreement of Lease (as it
hereinbefore and hereafter may be amended, the "LEASE"), dated as of December
__, 2001, by and between 42nd St. Development Project, Inc. ("LANDLORD") and The
New York Times Building LLC ("TENANT"). Capitalized terms used herein but not
defined herein shall have the meanings set forth in the Lease.
Pursuant to Section 3.1 (b)(ii) of the Lease and in connection with
Tenant's current payment of PILOT, Tenant hereby certifies to Landlord that:
Tenant will offset 85% of the PILOT payment due under the Lease as of the date
hereof against Tenants outstanding balance of unreimbursed ESAC;
Tenant's outstanding balance of unreimbursed ESAC as of _______, the closing
date of the last Quarterly ESAC Report (as defined in the Site 8 South LADA), is
$______; and
An amount of unreimbursed ESAC equal to or greater than the offset amount set
forth in (a) above remains to be credited.
Yours Truly,
THE NEW YORK TIMES BUILDING LLC
By: NYT Real Estate Company LLC, member
By: _________________________________
Name:
Title: Manager
By: FC Lion LLC, member
By: FC 00xx Xxxxxx Associates, LLC,
its managing member
By: RRG 8 South, Inc., its
managing member
By:__________________________
Name:
Title:
cc: Xxx Xxxx xx Xxx Xxxx
Xxxxxxxxx -- Xxx Xxxx Xxxx Economic Development Corporation
Chief. Economic Development Division -- New York City Law Department
Xxxxx X. Xxxxx. Esq. -- Xxxxxxx & Sterling
Xxx Xxxxxxxx, Esq. -- Pillsbury Winthrop LLP
42nd St. Development Project. Inc. -- New York State Urban
Development Corporation
EXHIBIT M
Intentionally Omitted
EXHIBIT N
Intentionally Omitted
EXHIBIT O
FORM OF "NON ADVERSE STRUCTURAL EFFECT" STATEMENT OF ENGINEER OR
ARCHITECT (ss.6.12)
[Engineer's/Architect's letterhead]
as of __, 200_
XXX XXXX
00xx Xx. Development Project, Inc.
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
SITE 8 SOUTH - CONSTRUCTION WORK
Ladies and Gentlemen:
Reference is made to that certain
Agreement of Lease (as it
hereinbefore may have been and hereafter may be amended, the "LEASE"), dated as
of December ___,2001, by and between 42nd St. Development Project, Inc.
("LANDLORD") and The New York Times Building LLC ("TENANT"). Capitalized terms
used herein but not defined herein shall have the meanings set forth in the
Lease.
Pursuant to Section 6.12 of the Lease, the undersigned hereby
certifies that: (a) it has reviewed Section 6.12 of the Lease and is familiar
therewith; (b) it has assessed the Construction Work listed on SCHEDULE A
attached hereto; and (c) based solely on such assessment, and without regard to
any representations or other statements made by Tenant or any other party, such
Construction Work shall have no adverse effect on a Structural Component that is
greater than a Nonadverse Structural Effect.
Yours Truly,
[Signature block of Engineer/Architect]
cc: Xxx Xxxx xx Xxx Xxxx
Xxxxxxxxx - Xxx Xxxx Xxxx Economic Development Corporation
Chief, Economic Development Division - New York City Law Department
Xxxxx X. Xxxxx, Esq. - Shearman & Sterling
Xxx Xxxxxxxx, Esq. - Pillsbury Xxxxxxxx XXX
00xx Xxxxxx Development Project, Inc. - New York State Urban Development
Corporation
SCHEDULE A TO EXHIBIT 0
CONSTRUCTION WORK
[Insert description of Construction Work]
O-2
EXHIBIT P
FORM OF NONDISTURBANCE AGREEMENT (ss. 13.2(b))
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (this
"AGREEMENT"), dated as of ____,200_, between 42ND ST. DEVELOPMENT PROJECT, INC.,
a New York corporation, having an office at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "GROUND LESSOR"), and __________________, a
__________________, having an office at ___________________________ (the
"LANDLORD"), and __________________, having an office at __________________ (the
"TENANT").
WITNESSETH:
WHEREAS, Tenant has entered into a lease dated ________, 20__
between Landlord, as sublandlord, and Tenant, as subtenant, with respect to
certain space (the "DEMISED PREMISES") in the building located at
_______________,New York, New York (the "PREMISES") (said sublease, as
heretofore or hereafter amended and supplemented, the "LEASE");
WHEREAS, Ground Lessor is the ground lessor of the Premises pursuant
to that certain Agreement of Lease dated as of __________________,2001, between
Ground Lessor and __________________ (the "GROUND LEASE"); and
WHEREAS, Ground Lessor, Landlord and Tenant desire to enter into
this Agreement upon the terms, covenants and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the agreements
of the parties contained herein, the parties hereto hereby covenant and agree as
follows:
1. Except as expressly stated herein, nothing in this Agreement shall be
construed to be an approval by Ground Lessor of the provisions of the Lease.
2. Tenant agrees that the Lease is and shall be subject and subordinate to
the Ground Lease and all renewals, amendments, modifications, consolidations,
replacements and extensions thereof.
3. Ground Lessor hereby agrees that so long as the Lease shall be in full
force and effect, Tenant shall not be in default in the payment of rent or
additional rent due under the Lease and Tenant shall not be in default in the
performance or observance of any of the other obligations or conditions of the
Lease beyond any applicable cure period (the "NONDISTURB CONDITIONS"): (a)
Ground Lessor shall not join Tenant as a party defendant in any action or
proceeding which may be instituted or taken by Ground Lessor under the Ground
Lease, by reason of any default by Landlord thereunder, to terminate the Ground
Lease, to remove or evict the Landlord or to recover possession of the Premises,
unless required by law in order to make such action or proceeding effective; (b)
Tenant shall not be evicted from the Demised Premises; and (c) Tenant's
subleasehold estate under the Lease shall not be diminished, interfered with,
disturbed or terminated.
4. Tenant hereby agrees that in the event of any act or omission by
Landlord which would give Tenant the right, either immediately or after the
lapse of a period of time, to terminate the Lease, or to claim a partial or
total eviction, Tenant shall not exercise any such right: (a) until it has given
written notice of such act or omission to Ground Lessor; and (b) until a
reasonable period for remedying such act or omission shall have elapsed
following such giving of notice. Tenant from and after the date hereof shall
send a copy of any notice of default or notice in connection with the
commencement of any action to terminate the Lease or similar statement under the
Lease to Ground Lessor at the same time such notice or statement is sent to
Landlord under the Lease and agrees that, notwithstanding any provisions of the
Lease to the contrary, such notice shall not be effective unless Ground Lessor
shall have been given such notice and shall have failed to cure such default as
herein provided. All notices given under this Agreement shall be sent by
certified or registered mail, postage prepaid, return receipt requested, or
shall be delivered to the parties at the following addresses set forth above (or
at such other addresses as the parties hereto shall specify in a written notice
to the other parties at the addresses specified herein). Any notices hereunder
shall be deemed to be given on the earlier to occur of: (i) the day of receipt;
and (ii) three (3) days after deposit in the mail.
5. Tenant and Ground Lessor hereby agree that, in the event that Ground
Lessor shall enter into and become possessed of the Premises by reason of
default on the part of Landlord under the Ground Lease or by reason of the
termination of the Ground Lease, then, so long as the Nondisturb Conditions
shall be satisfied, the Lease shall continue as a direct lease between Ground
Lessor and Tenant upon all of the terms, covenants, conditions and agreements as
set forth in the Lease, and Tenant agrees to be bound thereby and to attorn to
Ground Lessor and recognize Ground Lessor as its landlord; PROVIDED, HOWEVER,
that Ground Lessor shall not:
(a) be liable for any act or omission or negligence of any prior
landlord under the Lease;
(b) be subject to any counterclaim, offset or defense, which
theretofore accrued to the Tenant against the prior landlord under the Lease;
(c) be subject to any counterclaim, offset or defense at any time
during the term of the Lease with respect to the payment of rent or additional
rent by Tenant;
(d) be bound by any modification or amendment of such Lease (unless
Ground Lessor shall have theretofore received a copy of and consented in writing
to such modification or amendment);
(e) be bound by any payment of rent or additional rent for more than
one (1) month in advance (unless actually received by Ground Lessor);
(f) be liable for any security deposit given by Tenant under the
Lease, unless and to the extent actually received by Ground Lessor;
(g) be obligated to perform any work of any kind in the Demised
Premises or the Premises;
P-2
(h) in the event of a casualty, be obligated to repair or restore
the Premises or any portion thereof beyond such repair or restoration as may be
reasonably accomplished from the net insurance proceeds actually made available
to Ground Lessor:
(i) in the event of a partial condemnation, be obligated to repair
or restore the Premises or any part thereof beyond such repair or restoration as
may be reasonably accomplished from the net proceeds of any award actually made
available to Ground Lessor;
(j) be subject to any right of cancellation or termination which
requires payment by the landlord thereunder of a charge, fee or penalty for such
cancellation or termination, except if Ground Lessor voluntarily exercises such
right of cancellation or termination other than as a result of a casualty or
condemnation;
(k) be subject to any right of first refusal or first offer to
purchase the Premises or any portion thereof;
(l) be obligated to give Tenant all or any portion of any insurance
proceeds or condemnation awards received by Ground Lessor as a result of a
casualty or condemnation;
(m) be subject to liability for any amounts in excess of the amounts
set forth in Article 17 of the Ground Lease; or
(n) be bound for a term in excess of ten (10) years from the
commencement date of the Lease.
Upon the request of either Tenant or Ground Lessor, Tenant or Ground Lessor, as
the case may be, shall promptly execute and deliver to the other an agreement or
other instrument in recordable form which may be necessary or appropriate to
evidence such attornment.
6. Landlord and Tenant shall not change, or consent to a change in, the
terms, covenants, conditions and agreements of the Lease in any manner which
would be binding on Ground Lessor without the express consent in writing of
Ground Lessor.
7. Tenant further acknowledges that pursuant to Section 13.4 of the Ground
Lease, the Ground Lessor may elect to collect rent and all other sums due under
the Lease under certain circumstances. In the event that the Ground Lessor
elects to collect rent or other charges under Section 13.4 of the Ground Lease,
then from and after such election, until further notice from Ground Lessor,
Tenant shall pay its rent, additional rent and all other sums due under the
Lease directly to Ground Lessor.
8. This Agreement may not be modified, amended or terminated unless in
writing and duly executed by the party against whom the same is sought to be
asserted and constitutes the entire agreement between the parties with respect
to the subject matter hereof.
9. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
P-3
10. This Agreement shall be governed by. and construed in accordance with,
the laws of the State of New York applicable to agreements made and to be
performed entirely within said state.
[SIGNATURES ON NEXT PAGE]
P-4
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
GROUND LESSOR:
42ND ST. DEVELOPMENT PROJECT, INC.
By: ____________________________________
Name:
Title:
TENANT:
[___________________]
By: ____________________________________
Name:
Title:
LANDLORD:
[___________________]
By: ____________________________________
Name:
Title:
P-5
EXHIBIT Q
FORM OF NYTC FORM SUBLEASE (ss. 13.1(b)(ii)(A))
LEASE (this "LEASE"), dated as of _____________, 2___, between
______________________, having an office at
______________________________________________________ ("LANDLORD") and
____________________________________________, having an office at
_______________________________________________________ ("TENANT").
WHEREAS,
1. ________________________________ (the "Ground Lessor") is (i) the
fee owner of the Land, (ii) the lessor and lessee under the Ground Lease, and
(iii) the lessor under the Unit Lease, and
2. Landlord is the lessee under the Unit Lease (as hereinafter
defined) and desires to sublease to Tenant and Tenant desires to hire from the
Landlord, the Premises, on the terms and conditions hereinafter set forth,
NOW THEREFORE, Landlord and Tenant do hereby covenant and agree as
follows:
Definitions
For purposes of this Lease, the following terms shall have the respective
meanings hereinafter specified, such definitions to be applicable equally to the
singular and plural forms of such terms:
"AAA" shall have the meaning ascribed to such term in Sections 3.03(d)(iv);
"ADA" shall have the meaning ascribed to such term in Section 2.01(e);
"ADDITIONAL CHARGES" shall have the meaning ascribed to such term in Section
1.04(a);
"ALTERATION" shall have the meaning ascribed to such term in Section 11.01;
"APPOINTMENT DATE" shall have the meaning ascribed to such term in Section
35.01;
"ARBITER" shall have the meaning ascribed to such term in Section 3.03(d)(iv);
"ARBITRATION NOTICE" shall have the meaning ascribed to such term in Section
35.01;
"ASSIGNMENT RECAPTURE OFFER NOTICE" shall have the meaning ascribed to such term
in Section 7.01(b);
"ASSIGNMENT RECAPTURE PERIOD" shall have the meaning ascribed to such term in
Section 7.01(b);
"BASE BUILDING ELEMENTS" shall have the meaning ascribed to such term in Section
19.04(a);
"BASE BUILDING RESTORATION ESTIMATE" shall have the meaning ascribed to such
term in Section 19.04(a);
"BASE OPERATING AMOUNT" shall have the meaning ascribed to such term in Section
3.01(a):
"BASE OPERATING YEAR" shall have the meaning ascribed to such term in Sections
3.01(b);
"BASE RATE" shall have the meaning ascribed to such term in Section 34.05(j);
"BASE TAX AMOUNT" shall have the meaning ascribed to such term in Sections
3.01(c);
"BASIC RESTORATION" shall have the meaning ascribed to such term in Section
19.02;
"BOARD SNDA" shall have the meaning ascribed to such term in Section 10.01;
1
"BUILDING" shall have the meaning ascribed to such term in Section 1.01;
"BUILDING SYSTEMS" shall have the meaning ascribed to such term in Section
8.01(c);
"BUSINESS DAYS" shall have the meaning ascribed to such term in Section
15.01(b);
"BUSINESS HOURS" shall have the meaning ascribed to such term in Section
15.01(b);
"BY-LAWS" shall have the meaning ascribed to such term in Section 1.01;
"CLEANING COST REDUCTION" shall have the meaning ascribed to such term in
Section 15.01(a);
"COMMENCEMENT DATE" shall have the meaning ascribed to such term in Section
1.05;
"COMPARABLE BUILDINGS" shall have the meaning ascribed to such term in Section
13.04(a);
"COMPARABLE SPACE" shall have the meaning ascribed to such term in Section
7.05(c);
"CONDOMINIUM" shall have the meaning ascribed to such term in Section 1.01;
"CONFIDENTIALITY AGREEMENT" shall have the meaning ascribed to such term in
Section 3.03(d);
"CONSUMER PRICE INDEX" shall have the meaning ascribed to such term in Section
34.05(k);
"COURT" shall have the meaning ascribed to such term in Section 35.01;
"DATE OF THE TAKING" shall have the meaning ascribed to such term in Section
20.01;
"DECLARATION" shall have the meaning ascribed to such term in Section 1.01;
"DEFECTS NOTICE" shall have the meaning ascribed to such term in Section
2.01(c);
"EVENT OF DEFAULT" shall have the meaning ascribed to such term in Section
22.02;
"EXISTING MORTGAGE" shall have the meaning ascribed to such term in Section
5.04(b);
"EXPEDITED ARBITRATION" shall have the meaning ascribed to such term in Section
35.04;
"EXPIRATION DATE" shall have the meaning ascribed to such term in Section 1.03;
"EXTENSION NOTICE" shall have the meaning ascribed to such term in Section
36.01(a);
"EXTENSION TERM" shall have the meaning ascribed to such term in Section
36.01(a);
"FAIR MARKET RENT" shall have the meaning ascribed to such term in Section
1.04(b);
"FC OFFICE UNITS" shall have the meaning ascribed to such term in Section
3.01(e);
"FIRST ADJUSTMENT DATE" shall have the meaning ascribed to such term in Section
1.04(b);
"FIXED RENT" shall have the meaning ascribed to such term in Section 1.04(a);
"FOOD SERVICE FACILITY" shall have the meaning ascribed to such term in Section
15.05;
"FORCE MAJEURE CAUSES" shall have the meaning ascribed to such term in Section
34.04(a);
"GROUND LEASE" shall have the meaning ascribed to such term in Section 5.04(a);
"GROUND LESSOR" shall have the meaning ascribed to such term in the Preamble;
"HAZARDOUS MATERIALS" shall have the meaning ascribed to such term in Section
33.03;
"IMPROVEMENTS DEMOLITION WORK" shall have the meaning ascribed to such term in
Section 19.01(a);
"IMPROVEMENTS RESTORATION WORK" shall have the meaning ascribed to such term in
Section 19.01(a);
"INDEX MONTH" shall have the meaning ascribed to such term in Section 11.01;
"INTEREST RATE" shall have the meaning ascribed to such term in Section
34.05(j);
"LAND" shall have the meaning ascribed to such term in Section 1.01;
"LANDLORD" shall have the meaning ascribed to such term in the Preamble and in
Section 34.05(e);
"LANDLORD AFFILIATE" shall have the meaning ascribed to such term in Section
3.01(e);
"LANDLORD APPLICABLE CURE PERIOD" shall have the meaning ascribed to such term
in Section 27.02;
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"LANDLORD LONG-TERM CURE DEFAULT" shall have the meaning ascribed to such term
in Section 27.02;
"LANDLORD'S ASSIGNMENT RECAPTURE NOTICE" shall have the meaning ascribed to such
term in Section 7.01(b);
"LANDLORD'S CASUALTY TERMINATION NOTICE" shall have the meaning ascribed to such
term in Section 19.03;
"LANDLORD'S RATE" shall have the meaning ascribed to such term in Section
14.02(c);
"LANDLORD'S RESTORATION WORK" shall have the meaning ascribed to such term in
Section 2.01(a);
"LANDLORD'S STATEMENT" shall have the meaning ascribed to such term in Section
3.01(d);
"LANDLORD'S STOPPAGE NOTICE" shall have the meaning ascribed to such term in
Section 15.04;
"LATENT DEFECTS" shall have the meaning ascribed to such term in Section
2.01(c);
"LAWS AND REQUIREMENTS OF ANY PUBLIC AUTHORITIES" shall have the meaning
ascribed to such term in Section 34.05(b);
"LEGAL REQUIREMENTS" shall have the meaning ascribed to such term in Section
34.05(1);
"LONG-TERM CURE DEFAULT" shall have the meaning ascribed to such term in Section
22.02(b);
"MATERIAL ALTERATION" shall have the meaning ascribed to such term in Section
11.01;
"MATERIAL ALTERATIONS REQUEST" shall have the meaning ascribed to such term in
Section 11.01;
"MORTGAGE" shall have the meaning ascribed to such term in Section 34.05(a);
"NOTICES" shall have the meaning ascribed to such term in Section 29.01;
"NYTC FLOORS" shall have the meaning ascribed to such term in Section 2.01(a);
"OPERATING EXPENSES" shall have the meaning ascribed to such term in Section
3.01(e);
"OPERATING PAYMENT" shall have the meaning ascribed to such term in Section
3.03(a);
"OPERATING YEAR" shall have the meaning ascribed to such term in Section
3.01(f);
"OVERTIME FREIGHT ELEVATOR/LOADING DOCK SERVICE" shall have the meaning ascribed
to such term in Section 15.02(c);
"OVERTIME HVAC SERVICE" shall have the meaning ascribed to such term in Section
15.02(a);
"PERSON" shall have the meaning ascribed to such term in Section 34.05(h);
"PREMISES" shall have the meaning ascribed to such term in Section 1.02;
"PRIOR TENANT RESTORATION WORK" shall have the meaning ascribed to such term in
Section 2.01(b);
"QUALIFYING SNDA AGREEMENT" shall have the meaning ascribed to such term in
Section 5.05(c);
"RECORDS" shall have the meaning ascribed to such term in Section 3.03(d);
"REQUIREMENTS OF INSURANCE BODIES" shall have the meaning ascribed to such term
in Section 34.05(c);
"SECOND ADJUSTMENT DATE" shall have the meaning ascribed to such term in Section
1.04(b);
"SECTION 14.07 DEMAND" shall have the meaning ascribed to such term in Section
14.07;
"SECURED AREAS" shall have the meaning ascribed to such term in Section 16.05;
"SLAB CUT IMPROVEMENTS" shall have the meaning ascribed to such term in Section
2.01(a);
"SNDA AGREEMENT" shall have the meaning ascribed to such term in Section
5.05(a);
"SUBLEASE PROFIT" shall have the meaning ascribed to such term in Sections
7.07(b);
"SUBLEASE TERM" shall have the meaning ascribed to such term in Section 7.07(b);
"SUBSTANTIALLY" shall have the meaning ascribed to such term in Section 3.03(d);
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"SUCCESSOR LANDLORD" shall have the meaning ascribed to such term in Section
5.03;
"SUPERIOR LEASE" shall have the meaning ascribed to such term in Section 5.01;
"SUPERIOR LESSOR" shall have the meaning ascribed to such term in Section 5.01;
"SUPERIOR MORTGAGE" shall have the meaning ascribed to such term in Section
5.01;
"SUPERIOR MORTGAGEE" shall have the meaning ascribed to such term in Section
5.01;
"SYSTEMS DEFECTS" shall have the meaning ascribed to such term in Section
2.01(c);
"TAX ADJUSTMENT DATE" shall have the meaning ascribed to such term in Section
3.02(a);
"TAX PAYMENT" shall have the meaning ascribed to such term in Section 3.02(a);
"TAX YEAR" shall have the meaning ascribed to such term in Section 3.01(h);
"TAXES" shall have the meaning ascribed to such term in Section 3.01(g);
"TENANT" shall have the meaning ascribed to such term in the Preamble and in
Section 34.05(d);
"TENANT AFFILIATE" shall have the meaning ascribed to such term in Section
7.01(d);
"TENANT NEGOTIATION NOTICE" shall have the meaning ascribed to such term in
Section 7.05(c);
"TENANT SHAFT SHARE" shall have the meaning ascribed to such term in Section
15.05;
"TENANT'S COSTS" shall have the meaning ascribed to such term in Sections
7.07(a) and 7.07(c);
"TENANT'S ELECTRICAL CONSULTANT" shall have the meaning ascribed to such term in
Section 14.07;
"TENANT'S OPERATING SHARE" shall have the meaning ascribed to such term in
Section 3.01(i);
"TENANT'S PROPERTY" shall have the meaning ascribed to such term in Section
12.02;
"TENANT'S STATEMENT" shall have the meaning ascribed to such term in Section
3.03(d);
"TENANT'S REPRESENTATIVE" shall have the meaning ascribed to such term in
Section 3.03(d);
"TENANT'S TAX SHARE" shall have the meaning ascribed to such term in Section
3.01(j);
"THEN TENANT" shall have the meaning ascribed to such term in Section 7.04;
"THIRD ADJUSTMENT DATE" shall have the meaning ascribed to such term in Section
1.04(b);
"TRANSFER" shall have the meaning ascribed to such term in Section 34.05(e);
"TRANSFEREE" shall have the meaning ascribed to such term in Section 34.05(e);
"TRANSFEROR" shall have the meaning ascribed to such term in Section 34.05(e);
"UNIT" shall have the meaning ascribed to such term in Section 1.02;
"UNIT LEASE" shall have the meaning ascribed to such term in Section 5.01;
"UNIT LEASE SNDA AGREEMENT" shall have the meaning ascribed to such term in
Section 5.05(b);
"USERS" shall have the meaning ascribed to such term in Section 7.01(a);
ARTICLE 1
TERM AND FIXED RENT
1.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, upon and subject to the terms, covenants, provisions and conditions of
this Lease, the premises described in Section 1.02 hereof in the building (the
"BUILDING") known as The New York Times Building, which Building is a leasehold
condominium (the "CONDOMINIUM"), in the City, County and State of New York. The
Building is located on a portion of the land (the "LAND") described in EXHIBIT A
annexed hereto and made a part hereof. The Condominium was established pursuant
to the Condominium's Declaration of Leasehold Condominium dated _____________
and recorded in the New York County Office of the Register of the City of New
York on
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_____________ in Reel _____, Page _____ (the "DECLARATION") and the By-Laws
annexed thereto (the "BY-LAWS").
1.02. (a) The Premises (the "PREMISES") leased to Tenant consist of [the
entire] [a portion of] the ________ floor(s) of the Building which floor(s) are
designated as Unit No(s). __________ of the Condominium (collectively, the
"UNIT"). The Unit also consists of an undivided [ _____%] interest in the Common
Elements and the FC Limited Common Elements of the Condominium (each, as defined
in the Declaration). Landlord hereby grants to Tenant the non-exclusive right to
use, in common with others, the Common Elements and the FC Limited Common
Elements. The parties agree that the Premises shall be deemed to contain
_________ rentable square feet for all purposes under this Lease. The
measurement standard for rentable square feet for the Building and the Premises
is set forth on EXHIBIT C annexed hereto and made a part hereof.
1.03. The term of this Lease shall be a period of ________ ( ___) years(1)
which term (a) shall commence on the Commencement Date (as hereinafter defined)
and (b) shall end at 11:59 p.m. on the date (the "EXPIRATION DATE") which is the
day immediately preceding the ________ (____) anniversary of the Commencement
Date, or on such earlier date upon which the term of this Lease shall expire or
be canceled or terminated pursuant to any of the conditions or covenants of this
Lease or pursuant to law.
1.04. (a) The rents shall be and consist of:
(i) fixed rent ("FIXED RENT") at a rate determined in accordance
with [Article XX, Section 5(a), 5(b), 5(c), or 5(d), as
applicable, of the Declaration, and Article XX. Section 8(b)
of the Declaration](2), which Fixed Rent shall be payable
commencing on the Commencement Date, in equal monthly
installments in advance on the first day of every calendar
month during the term of this Lease, ***and which Fixed Rent
shall be subject to increase or decrease as of the First
Adjustment Date, Second Adjustment Date and Third Adjustment
Date, as such terms are hereinafter defined, as provided in
Section 1.04(b) hereof***; and
(ii) additional rent ("ADDITIONAL CHARGES") consisting of Tax
Payments. Operating Payments and charges for electricity, and
any other utilities furnished to Tenant at Tenant's request
for which Tenant does not pay on a
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(1) To be filled in upon exercise of applicable option by NYTC. Initial
term to be ten (10), twenty (20), thirty (30) or forty (40) years, as elected by
NYTC upon exercise of option. If NYTC elects initial term often (10) years,
Tenant to have three (3) 10-year renewal options pursuant to Article 36. If NYTC
elects initial term of twenty (20) years, Tenant to have two (2) 10-year renewal
options pursuant to Article 36. If NYTC elects initial term of thirty (30)
years, Tenant to have one (1) 10-year renewal option pursuant to Article 36.
(2) Substitute "Section 5.12 of the Operating Agreement" if applicable.
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direct metered basis, and all other sums of money as shall
become due from and payable by Tenant to Landlord pursuant to
the provisions of this Lease;
all to be paid in lawful money of the United States to Landlord at its office in
the United States of America, or such other place in the United States of
America as Landlord shall designate by not less than thirty (30) days prior
written notice to Tenant.
***(3) (b) The Fixed Rent shall be subject to adjustment (i.e., either
increase or decrease) effective as of the tenth (10th) anniversary of the
Commencement Date (the "FIRST ADJUSTMENT DATE"), the twentieth (20th)
anniversary of the Commencement Date (the "SECOND ADJUSTMENT DATE"), and the
thirtieth (30th) anniversary of the Commencement Date (the "THIRD ADJUSTMENT
DATE"), such that (i) the Fixed Rent for the ten (10) year period beginning on
the First Adjustment Date shall be the "FAIR MARKET RENT", as such term is
defined in Article XX, Section 8(b) of the Declaration, for the Premises as of
the First Adjustment Date, (ii) the Fixed Rent for the ten (10) year period
beginning on the Second Adjustment Date shall be the Fair Market Rent for the
Premises as of the Second Adjustment Date, and (iii) the Fixed Rent for the ten
(10) year period beginning on the Third Adjustment Date shall be the Fair Market
Rent for the Premises as of the Third Adjustment Date.(4) Fair Market Rent as of
the First Adjustment Date, Second Adjustment Date or Third Adjustment Date, as
the case may be, shall be determined in accordance with Article XX, Section 8(b)
of the Declaration. In each case, the twenty (20) day period for the parties to
meet and attempt in good faith to determine Fair Market Rent referred to in the
first sentence of Article XX, Section 8(b) of the Declaration shall commence on
the date which is one-hundred twenty (120) days prior to the First Adjustment
Date, Second Adjustment Date or Third Adjustment Date, as the case may be, and,
in the event the parties do not reach agreement upon Fair Market Rent within
said twenty (20) days, then Fair Market Rent shall be determined by arbitration
as more particularly set forth in Article XX, Section 8(b) of the Declaration.
(c) Within ten (10) Business Days after written request by either party
following any determination of Fixed Rent as provided in Section 1.04(a) and/or
Section 1.04(b) hereof, the parties shall enter into a supplemental agreement in
recordable form confirming such Fixed Rent for the applicable period. In the
event the Fixed Rent for the initial term of this Lease shall not have been
finally determined as of the Commencement Date, Tenant shall pay an amount equal
to Landlord's determination of the Fixed Rent as set forth in a notice to Tenant
given within twenty (20) days after the date Tenant exercises its option to
lease the Premises as described in Article XX of the Declaration, until the
final determination of Fixed Rent for such initial term has been made. Within
ten (10) Business Days following the final determination of Fixed Rent for such
initial term, (x) Landlord shall reimburse Tenant the amount by which the Fixed
Rent paid by
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(3) First Adjustment Date. Second Adjustment Date and Third Adjustment
Date -- depending on terms of Lease, one or more of these terms may have to be
deleted.
(4) 95% of Fair Market Rent for space leased pursuant to Section 5.12 of
the Operating Agreement.
6
Tenant for the period beginning on the Commencement Date and ending on the last
day of the calendar month in which such final determination is made exceeds the
Fixed Rent as finally determined for such period, together with interest on such
excess amount at the Interest Rate, or (y) Tenant shall pay Landlord the amount
by which the Fixed Rent as finally determined for the period beginning on the
Commencement Date and ending on the last day of the calendar month in which such
final determination is made exceeds the amount of Fixed Rent for such period
paid by Tenant, together with interest on such excess amount at the Interest
Rate. If Landlord does not reimburse Tenant for any amount due Tenant in
accordance with the provisions of this Paragraph 1.04(c) within such ten (10)
Business Day period, Tenant may offset the amount of Tenant's overpayment with
interest at the Interest Rate from the date such amount was due Tenant, against
the next succeeding installments of Fixed Rent and Additional Charges.
(d) In the event the Fixed Rent for any subsequent ten (10) year period
shall not have been finally determined as of the First Adjustment Date, Second
Adjustment Date or Third Adjustment Date, as the case may be, then pending such
final determination Tenant shall pay Fixed Rent at the rate payable hereunder
immediately prior to the First Adjustment Date, Second Adjustment Date or Third
Adjustment Date, as the case may be, and within ten (10) Business Days following
the final determination of Fixed Rent for such ten (10) year period, (x) Tenant
shall pay Landlord the amount by which the Fixed Rent as finally determined for
the period beginning on the applicable Adjustment Date and ending on the last
day of the calendar month in which such final determination is made exceeds the
amount of Fixed Rent for such period paid by Tenant, together with interest on
such excess amount at the Interest Rate, or (y) Landlord shall reimburse Tenant
the amount by which the Fixed Rent paid by Tenant for the period beginning on
the applicable Adjustment Date and ending on the last day of the calendar month
in which such final determination is made exceeds the Fixed Rent as finally
determined for such period, together with interest on such excess amount at the
Interest Rate. If Landlord does not reimburse Tenant for any amount due Tenant
in accordance with the provisions of this Paragraph 1.04(d) within such ten (10)
Business Day period Tenant may offset the amount of Tenant's overpayment with
interest at the Interest Rate from the date such amount was due Tenant against
the next succeeding installments of Fixed Rent and Additional Charges.
1.05. For purposes of this Lease, the term "COMMENCEMENT DATE" shall mean
[the date vacant possession of the Premises is delivered to Tenant in accordance
with the provisions of this Lease] or [actual date, if known].
1.06. Tenant covenants and agrees to pay Fixed Rent and Additional Charges
promptly when due without notice or demand therefor and without any abatement,
deduction or setoff for any reason whatsoever, except as may be expressly
provided in this Lease.
1.07. If the Commencement Date occurs on a day other than the first day of
a calendar month, or if the Expiration Date occurs on a day other than the last
day of a calendar month, the Fixed Rent and Additional Charges for the partial
calendar month shall be prorated.
7
1.08. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Fixed Rent or Additional Charges shall be deemed
to be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy
in this Lease or at law provided.
1.09. If any Fixed Rent or Additional Charges payable by Tenant to
Landlord pursuant to the provisions of the Lease are not paid within two (2)
days following the date due, Tenant shall pay interest thereon from the date
when such installment of Fixed Rent or Additional Charges became due to the date
of Landlord's receipt thereof at the lesser of (i) the Interest Rate, or (ii)
the maximum rate permitted by law, until paid in full.
ARTICLE 2
Delivery and Use of Premises
2.01. (a) On or before the Commencement Date, Landlord shall, at
Landlord's sole cost and expense, perform the following work in and to the
Premises (collectively, "LANDLORD'S RESTORATION WORK") (i) remove any internal
staircases, elevators and escalators, atriums, internal vertical transportation
systems and other slab cuts and associated equipment and improvements
(collectively, "SLAB CUT IMPROVEMENTS") between the Premises and any other
floors of the Building not currently owned or occupied by (or currently being
acquired or leased by) Tenant or an affiliate of The New York Times Company (the
"NYTC FLOORS") and restore the portions of the floor slab of the Premises
affected by such Slab Cut Improvements to their original condition and level and
ready for floor covering, and (ii) disconnect or segregate any special services
(e.g., any other tenant's supplemental HVAC system) which service both the
Premises and other space in the Building other than NYTC Floors.(5) Tenant may
waive the performance by Landlord of any Landlord's Restoration Work by written
notice to Landlord given within ten (10) Business Days after the date of this
Lease, in which event Landlord shall not perform and shall have no obligation to
Tenant on account of, the Landlord's Restoration Work so waived by Tenant. If
and to the extent Landlord's Restoration Work not so waived by Tenant is not
complete as of the Commencement Date, Tenant shall receive a credit against the
first installments of Fixed Rent and Additional Charges due hereunder (until
such credit is exhausted) for the estimated cost of completing such Landlord's
Restoration Work as estimated by a reputable contractor designated by Tenant and
approved by Landlord, such approval not to be unreasonably withheld, delayed or
conditioned. Subject to the provisions of this Section 2.01 and Section 13.04
hereof, the Premises shall be demised in their "AS IS" condition on the date of
this Lease and Tenant shall accept the same as such, provided that all services
which Landlord is required to provide to Tenant and the
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(5) If and for so long as Ground Lessor is (A) the "Landlord" under this
Lease and (B) a governmental entity or a public benefit corporation, Section
2.01 will provide that in lieu of performing Landlord's Restoration Work. Tenant
will receive the credit described in this section.
8
Premises are provided in accordance with the provisions of this Lease.
Furthermore, the building systems set forth in Exhibit M shall, as of the
Commencement Date, be in good working order and condition to the standard then
prevailing for comparable premium first class midtown Manhattan office
buildings.
(b) Landlord has advised Tenant that the following current or prior
tenants of the Premises have obligations under their leases to perform removal
and/or restoration work with respect to any existing leasehold improvements in
the Premises: [IDENTITY OF TENANT(S) AND NATURE OF REMOVAL/RESTORATION
OBLIGATION TO BE INSERTED PRIOR TO EXECUTION] ("PRIOR TENANT RESTORATION WORK").
Promptly after the date hereof, Landlord shall notify such tenants of the
foregoing removal/restoration obligations and shall use commercially reasonable
efforts to enforce such obligations and to have such Prior Tenant Restoration
Work completed prior to the Commencement Date.(6) On the Commencement Date,
Landlord shall assign to Tenant all of Landlord's rights and remedies against
such tenants with respect to such removal/restoration obligations. Landlord
shall cooperate with Tenant to the extent reasonably requested by Tenant in
connection with the enforcement of such rights and remedies and Landlord shall
within 20 days after demand reimburse Tenant for the actual cost (without profit
or markup) to Tenant in connection with the enforcement of such rights and
remedies. Tenant may waive the performance by Landlord of any Prior Tenant's
Restoration Work by written notice to Landlord given within ten (10) Business
Days after the date of this Lease, in which event Landlord shall have no
obligation to Tenant on account of, the Prior Tenant's Restoration Work so
waived by Tenant. The provisions of this subsection 2.01(b) shall not be deemed
to relieve Landlord of the obligation to perform Landlord's Restoration Work.
(c) The taking of possession by Tenant of any portion of the
Premises for the performance of Alterations or for any other reason whatsoever
shall be deemed an acceptance of such portion of the Premises, other than
defects in the HVAC, electrical, mechanical, plumbing and other systems of the
Building ("SYSTEMS DEFECTS") and latent defects in the Premises ("LATENT
DEFECTS"), which in either case are reported by Tenant to Landlord within twelve
(12) months after Tenant first occupies the Premises for the conduct of Business
(a "DEFECTS NOTICE"). If Tenant gives a Defects Notice, the taking of possession
of the Premises by Tenant shall be deemed an acceptance of the Premises except
with respect to the items set forth on such Defects Notice. Landlord shall
repair the defects set forth on any Defects Notice delivered to Landlord within
the foregoing twelve (12) month period promptly following delivery of same to
Landlord.
(d) Nothing contained in this Section 2.01 shall be deemed to
relieve Landlord of its obligation to observe or perform any term, covenant or
condition of this Lease on the part of Landlord to be observed or performed.
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(6) If and for so long as Ground Lessor is (A) the "Landlord" under this
Lease and (B) a governmental entity or a public benefit corporation, this
sentence shall not be applicable.
9
(e) Landlord hereby covenants and agrees with Tenant that, on the
Commencement Date, the core bathroom located on each of the floor of the
Premises and all other common areas and facilities of the Unit which affect
Tenant's access to, or use or enjoyment of the Premises (including, for example,
all elevators and elevator call buttons) are in compliance with the Americans
with Disabilities Act of 1990 (hereinafter called the "ADA") and New York City
Local Law No. 58 and all other state and local laws relating to accessibility,
and the regulations promulgated pursuant to any of the foregoing, in effect as
of the date hereof.(7)
2.02. (a) Landlord represents and warrants to Tenant that the terms of any
existing leases, subleases licenses or other agreements for the use and
occupancy of the Premises have expired or expire on or before the Commencement
Date and are not subject to extension or renewal by the tenant, subtenant,
licensee or occupant thereunder. Possession of the Premises shall be delivered
to Tenant on or before the Commencement Date vacant and free and clear of all
leases, tenancies, subtenancies, licenses or other rights to use or occupy the
Premises, subject to the provisions of Section 2.02(b).
(b) If for any reason whatsoever, Landlord shall be unable to
deliver vacant possession of the Premises on the date hereinabove set forth as
the Commencement Date, then notwithstanding anything to the contrary
hereinbefore contained, the term of this Lease shall commence on, and the
Commencement Date shall be, the date on which Landlord is able to so deliver
vacant possession of the Premises. Landlord shall not be subject to any
liability for failure to give vacant possession of the Premises on the date
hereinabove set forth as the Commencement Date (except to the extent that the
same arises out of a breach of any of Landlord's representations or covenants
under Section 2.02(a)), and the validity of this Lease shall not be impaired
under such circumstances. Notwithstanding the foregoing, in the event that, as
of the Commencement Date, any tenant, subtenant, licensee or occupant is holding
over in the Premises, then Landlord shall use its best efforts, including the
immediate commencement and diligent prosecution of holdover proceedings, to
obtain vacant possession of the Premises as expeditiously as possible. If
Landlord has not delivered to Tenant vacant possession of the Premises within
one hundred eighty (180) days after the originally scheduled Commencement Date
and such failure continues for twenty (20) days following written notice to
Landlord, Tenant shall have the right at any time thereafter (provided such
space has not been delivered to Tenant) to terminate this Lease, and upon such
termination this Lease shall be null and void (other than those provisions
hereof which expressly survive a termination of this Lease), and the parties
hereto shall be relieved of all further obligations and liability under this
Lease. Tenant hereby waives any right to rescind this Lease under the provisions
of Section 223(a) of the Real Property Law of the State of New York, and agrees
that the provisions of this Article are intended to constitute "an express
provision to the contrary" within the meaning of said Section 223(a).
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(7) If and for so long as the "Landlord" under this Lease is (A)(i) Ground
Lessor and (ii) a governmental entity or a public benefit corporation, or (B)
the party who acquires the interest of the "Landlord" in this Lease from such
governmental entity or public benefit corporation (but not any other party who
becomes the "Landlord" under this Lease), the provisions of subparagraph 2.01(e)
shall not be applicable.
10
2.03. (a) The Premises may be used for executive and general offices and
for purposes ancillary and incidental thereto, and for any other legal purposes
for which the Unit may be used under the Declaration, and for no other purpose.
(b) Attached hereto as EXHIBIT B is a copy of the current
Certificate of Occupancy covering the Unit. Landlord hereby represents, to the
best of Landlord's knowledge, such Certificate of Occupancy is in full force and
effect.(8) Subject to the provisions of this subparagraph 2.03(b) Landlord
hereby agrees at all times during the term of this Lease to keep in full force
and effect a Certificate of Occupancy for the Unit permitting Tenant to use the
Premises for executive and general offices (unless Tenant obtains a modification
or amendment of the Certificate of Occupancy for the Unit changing the permitted
use of the Premises to other than for executive and general offices or Tenant's
acts or omissions have caused the Certificate of Occupancy for the Unit to be
revoked). Landlord further agrees that it will not take any action to reduce the
permitted occupancy levels for the Unit below the currently permitted levels.
Should any Alterations (hereinafter defined) or Tenant's use of the Premises for
other than executive and general offices require any modification or amendment
of any Certificate of Occupancy for the Unit, Tenant shall, at its expense,
procure such modification or amendment, and Landlord, at no out-of-pocket cost
to Landlord, shall cooperate with Tenant in connection therewith (including
assisting and/or joining Tenant in any application or similar instrument),
provided that Tenant shall indemnify and hold harmless Landlord from and against
any claims arising in connection with such cooperation, other than any such
claims arising from any incorrect information provided by Landlord in connection
therewith or any conditions at or in the Unit which are Landlord's
responsibility hereunder, provided however, that in no event shall the foregoing
indemnity relieve Landlord of any obligation of Landlord hereunder. If any
violation of any Legal Requirement noted against the Premises or any other
portion of the Unit shall prevent Tenant from obtaining any such modification or
amendment to the Certificate of Occupancy for the Unit then, promptly after
Tenant's request that Landlord do so, Landlord shall cause such violation to be
cured or otherwise removed of record, except to the extent that such violation
(x) arises solely from Tenant's use or occupancy of the Premises in violation of
this Article 2 or any Alterations made by Tenant or (y) is not Landlord's
responsibility to cure pursuant to the provisions of this Lease.
(c) If any governmental license or permit (other than a Certificate
of Occupancy for the Unit) shall be required for the lawful conduct of Tenant's
business in the Premises, Tenant, at its expense, shall duly procure and
thereafter maintain such license or permit. Tenant shall at all times comply
with the terms and conditions of each such license or permit.
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(8) If and for so long as the "Landlord" under this Lease is (A)(i) Ground
Lessor and (ii) a governmental entity or a public benefit corporation, or (B)
the party who acquires the interest of the "Landlord" in this Lease from such
governmental entity or public benefit corporation (but not any other party who
becomes the "Landlord" under this Lease), the provisions of this sentence shall
not be applicable.
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ARTICLE 3
ESCALATIONS
3.01. The terms defined below shall for the purposes of this Lease have
the meanings herein specified:
(a) "BASE OPERATING AMOUNT" shall mean the Operating Expenses for
the Base Operating Year, subject to adjustment as provided in ss. 3.03(a).
(b) "BASE OPERATING YEAR" shall mean the calendar year in which
occurs the Commencement Date.
(c) "BASE TAX AMOUNT" shall mean the Taxes, as finally determined,
for the Tax Year in which occurs the Commencement Date, subject to the
adjustment as provided in ss. 3.02(a).
(d) "LANDLORD'S STATEMENT" shall mean an instrument or instruments
setting forth for a specified Operating Year, the Operating Payment payable by
Tenant pursuant to this Article 3, including the other information required by
this Lease to be included therein.
(e) "OPERATING EXPENSES" shall mean the following expenses incurred
by Landlord or any Landlord Affiliate in respect of the FC Collective Unit (as
defined in the Declaration) (collectively the "FC Office Units"), provided,
however, that if Landlord or any Landlord Affiliate shall sell any units
originally part of the FC Collective Unit to a third party, then expenses paid
or incurred in respect of such units shall not be deemed "Operating Expenses"
from and after the consummation of such sale and the "FC Office Units" shall not
include such units from and after the consummation of a sale. For purposes of
this Lease, the term "Landlord Affiliate" means a corporation, partnership in
limited liability company or other entity which controls, is controlled by, or
is under common control with Landlord. For purposes of this Section 3.01,
"control" means the ownership or voting control, directly or indirectly, of 50%
or more of the voting stock, partnership, membership or similar interest in such
entity:
(i) subject to the provisions of item (23) of this subsection
3.01(e), common charges and special assessments and other charges
assessed against the FC Office Units by the Condominium Board of
Managers and/or the FC Board of Managers (as such terms are defined
in the Declaration), as applicable; provided, however, that any
special assessments which are payable in more than one installment
shall be deemed payable in the maximum number of installments
permitted by the Condominium Board of Managers and the FC Board of
Managers, as applicable and only such installments as are payable
during the term of this Lease shall be included in Operating
Expenses and such installments shall be included for the Operating
Year in which they are so payable, regardless of when same are
actually paid by Landlord: and
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(ii) To the extent not included in clause (i) of this Section
3.01(e), the total of all of the reasonable and customary costs and
expenses incurred by Landlord or Landlord Affiliates (provided
Landlord has provided Tenant with prior notice as to the identities
of such Landlord Affiliates) with respect to the repair,
replacement, maintenance, operation and/or security of the FC Office
Units and the Building and the services provided to the tenants and
other users or occupants thereof, including without limitation, the
cost and expenses incurred with respect to: (1) salaries, wages,
medical, surgical, hospitalization, insurance (including, without
limitation, group life and disability insurance) of employees of
Landlord or Landlord Affiliates, union and general welfare benefits,
pension benefits, retirement plans, severance and sick day payments,
and other fringe benefits of employees of Landlord and Landlord
Affiliates and their respective contractors engaged in such repair,
replacement, maintenance, operation and/or security; (2) payroll
taxes, social security, unemployment, worker's compensation,
uniforms and related expenses (whether direct or indirect) for such
employees; (3) the cost of fuel, gas, steam, electricity, heat,
ventilation, air conditioning, chilled and condenser water, water,
sewer, telephone and other utilities, together with any taxes and
surcharges on, and fees paid in connection with the calculation and
billing of such utilities; (4) the cost of painting and/or
decorating all areas of the FC Office Units excluding, however, any
space contained therein which is demised or to be demised to
tenant(s); (5) the cost of fire and extended coverage insurance,
special extended coverage insurance, owner's protective insurance,
other casualty insurance coverage, boiler and machinery insurance,
sprinkler and apparatus insurance, public liability and umbrella
insurance, property damage insurance, rent or rental value insurance
for up to two (2) years rent, plate glass insurance and other
insurance commonly or customarily carried by owners of premium first
class office buildings in the midtown Manhattan (i.e. from 00xx
Xxxxxx to 60th Street, from 0xx Xxxxxx xx 0xx Xxxxxx), Xxxx xx Xxx
Xxxx ("COMPARABLE BUILDINGS") or which is required by any Superior
Lessor or Superior Mortgagee; (6) the cost of all supplies, tools,
materials and equipment, whether by purchase or rental, used in the
repair, replacement, maintenance, operation and/or security of the
FC Office Units, and any sales and other taxes thereon; PROVIDED,
HOWEVER, that if under generally accepted accounting principles,
consistently applied, any costs referred to in this clause (ii)(6)
are required to be capitalized, same shall be amortized, including
interest thereon at the Base Rate (as hereinafter defined) in effect
as of December 31 of the year in which such alteration or
improvement is made, over a period commencing upon the completion of
the item in question and extending for the useful life of the item
in question; (7) the cost of cleaning, janitorial and security
services, including, without limitation, glass cleaning and garbage
and waste collection and/or disposal; (8) management fees incurred
for the management of the FC Office Units, PROVIDED, HOWEVER, that
if Landlord or a Landlord Affiliate is the managing agent of the FC
Office Units then the annual management fee shall be equal to the
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then-prevailing market rate of Comparable Buildings; and (9)
commercially reasonable attorneys' fees and expenses in connection
with any proceeding that may be prosecuted by Landlord to reduce the
assessed valuation of the FC Office Units;
(iii) the cost of any alterations and improvements made by
Landlord or Landlord Affiliates (as contrasted with any such
alterations or improvements which are made by the Condominium Board
of Managers or the FC Board of Managers) to the FC Office Units
which are made or installed after the expiration of the Base
Operating Year either (x) by reason of any law enacted or any
governmental rule or regulation issued or any reinterpretation of
any law or governmental rule or regulation issued after the date of
this Lease, or (y) for the reduction of Operating Expenses with
respect to the FC OFFICE UNITS; PROVIDED, HOWEVER, that if under
generally accepted accounting principles, consistently applied, any
costs referred to in this clause (iii) are required to be
capitalized, same shall be amortized, including interest thereon at
the Base Rate in effect as of December 31 of the year in which such
alteration or improvements is made, over a period commencing upon
the completion of the item in question and extending for the useful
life of the item in question.
Notwithstanding the foregoing, "Operating Expenses" shall not
include, or there shall be deducted therefrom, as applicable, the following
items, whether or not same are included in common charges and special
assessments and other charges assessed against the FC Office Units by the
Condominium Board of Managers:
(1) interest on and amortization of debts;
(2) the cost of tenant improvements made for new or existing
tenant(s) of the Building or allowances in lieu thereof;
(3) brokerage commissions;
(4) financing or refinancing costs;
(5) the cost of any work or services performed for any tenant of
the Building, whether at the expense of Landlord, the
Condominium Board of Managers, or such tenant, to the extent
that such work or services are in excess of the work or
services which Landlord is required to furnish or is
furnishing to Tenant under this Lease at the expense of
Landlord;
(6) Taxes or any amounts expressly excluded from the definition of
"Taxes" under Section 3.01(g) hereof;
14
(7) the cost of any repairs made to remedy damage to the extent
caused by or resulting from the negligence of Landlord, its
agents, servants or employees, or Landlord Affiliates,
(8) legal or brokerage or finder's fees or other fees, leasing
commissions, advertising expenses and other costs incurred in
leasing or attempting to lease any portion of the FC Office
Units or in connection with placing or refinancing any
mortgages on the FC Office Units;
(9) any funds or money given to any tenants in cash, by offset or
otherwise, or the cost of any work done for any tenants in
connection with the leasing of space in the FC Office Units;
(10) the cost of any items to the extent Landlord or the
Condominium Board of Managers is reimbursed by the proceeds of
insurance, condemnation, warranties, guarantees or otherwise
compensated, including items reimbursable (whether or not
paid) by any tenant for specific services performed for such
tenant (other than under operating expense escalation
provisions of its lease);
(11) that portion of any cost paid to a Landlord Affiliate which is
in excess of the amount which would be paid in the absence of
such relationship;
(12) Salaries and fringe benefits for officers, employees, and
executives above the grade of Building Manager;
(13) financing and refinancing costs in respect of any indebtedness
of Landlord or any Landlord Affiliate, whether secured or
unsecured, including, legal and accounting fees and expenses,
prepayment penalties and interest and amortization payments in
connection therewith;
(14) rent, additional rent or other charges payable under any
ground or underlying lease, including, without limitation, the
Unit Lease;
(15) costs incurred in connection with the transfer or disposition
of direct or indirect ownership interests in the FC Office
Units or Landlord;
(16) the costs of repairs or restoration necessitated by
condemnation;
(17) costs incurred in connection with the making or enforcement of
leases or resolution of disputes with tenants, including,
without limitation, court costs, attorneys' fees and
disbursements in connection with any summary proceedings to
dispossess any tenant;
15
(18) fines, judgments or awards against Landlord based on
Landlord's negligence, willful misconduct or criminal act;
(19) general overhead of Landlord's or the managing agent's office;
(20) costs resulting from Landlord's default under any lease or
mortgage or under the Declaration; and
(21) advertising, promotional and public relations expenditures;
(22) costs of installing any specialty facility for use by tenants
at the Building (such as a restaurant or fitness center);
(23) capital expenditures, whether charged as assessments or
otherwise, other than those which:
(i) are required to comply with any laws and requirements of
any public authorities or the requirements of insurance
bodies; or
(ii) are for the reduction of Operating Expenses.
No item of expense shall be counted more than once either as an inclusion
in or an exclusion or deduction from Operating Expenses, and any expense which
should be allocated, in accordance with generally accepted accounting
principles, between the Unit, on the one hand, and any other FC Office Units or
any other property owned by Landlord or a Landlord Affiliate, on the other hand,
shall be properly allocated in accordance therewith. In determining the amount
of Operating Expenses for any Operating Year, including the Base Operating Year,
if less than all of the rentable square footage of the FC Office Units shall
have been occupied by tenant(s) at any time during such Operating Year,
Operating Expenses shall be determined for such Operating Year to be an amount
equal to the expenses which would have been incurred had ninety-five percent
(95%) of all of the rentable square footage of the FC Office Units been occupied
by tenants throughout such Operating Year.
(f) "OPERATING YEAR" shall mean each calendar year in which occurs
any part of the term of this Lease following the end of the Base Operating Year.
(g) "TAXES" shall mean (A) the real estate taxes (or PILOT in lieu
of real estate taxes), assessments and special assessments, and business
improvement district or similar charges, levied, assessed or imposed upon or
with respect to the FC Office Units, by any federal, state, municipal or other
governments or governmental bodies or authorities, and (B) all taxes assessed or
imposed with respect to the rentals payable hereunder other than general income
and gross receipts taxes. If at any time during the term of this Lease the
methods of taxation prevailing on the date hereof shall be altered so that in
lieu of, or as an addition to or as a substitute for, the whole or any part of
such real estate taxes, assessments and special assessments
16
now imposed on real estate, there shall be levied, assessed or imposed with
respect to the Unit (x) a tax, assessment, levy, imposition, license fee or
charge wholly or partially as a capital levy or otherwise on the rents received
therefrom, or (y) any other such additional or substitute tax, assessment, levy,
imposition, fee or charge, then all such taxes, assessments, levies,
impositions, fees or charges or the part thereof so measured or based shall be
deemed to be included within the term "Taxes" for the purposes hereof, but only
to the extent calculated as if Landlord's interest in the Unit were Landlord's
only asset; provided, however, that any such taxes, assessments, levies, fees,
impositions or charges which are "in addition to" (as opposed to "in lieu of" or
"as a substitute for") taxes otherwise includable in this definition of Taxes
shall only be deemed Taxes if such amounts, from and after the time of their
imposition, shall generally be treated as Taxes in other leases entered into by
Landlord and by landlords of buildings comparable to the Building in midtown
Manhattan. Any dispute between Landlord and Tenant as to whether any taxes,
assessments, levies, fees, impositions or charges should be included in Taxes as
amounts which are includable on the basis that they are "in addition to" Taxes
in accordance with the proviso at the end of the immediately preceding sentence
shall be determined by arbitration in accordance with the then-prevailing rules
of the American Arbitration Association in the City of New York. The term
"TAXES" shall, notwithstanding anything to the contrary contained herein,
exclude any net income, franchise or "value added" tax, inheritance tax or
estate tax imposed or constituting a lien upon Landlord or all or any part of
the Unit, the Land or Building, except to the extent that any of the foregoing
are hereafter assessed against owners or lessors of real property in their
capacity as such (as opposed to any such taxes which are of general
applicability).
(h) "TAX YEAR" shall mean each period of twelve (12) months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this Lease, or such other period of twelve (12) months
occurring during the term of this Lease as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York.
(i) "TENANT'S OPERATING SHARE" shall mean _____% (which percentage
may be adjusted in accordance with the provisions of Section 3.03(a) hereof),
which has been calculated as a fraction, expressed as a percentage, the
numerator of which is the rentable area of the Premises, which Landlord and
Tenant agree is __________ rentable square feet, and the denominator of which is
the rentable area of the FC Office Units, which Landlord and Tenant agree is
__________ rentable square feet.
(j) "TENANT'S TAX SHARE" shall mean shall mean _____% (which
percentage may be adjusted in accordance with the provisions of Section 3.02(a)
hereof), which has been calculated as a fraction, expressed as a percentage, the
numerator of which is the rentable area of the Premises, which Landlord and
Tenant agree is __________ rentable square feet, and the denominator of which is
the rentable area of the FC Office Units which are owned by Landlord and/or
Landlord Affiliates which Landlord and Tenant agree is __________ rentable
square feet as of the date of this Lease.
3.02. (a) If Taxes payable for any Tax Year, any part of which shall occur
during the term of this Lease, shall exceed the Base Tax Amount. Tenant shall
pay to Landlord as Additional
17
Charges for such Tax Year an amount (the "TAX PAYMENT") equal to Tenant's Tax
Share of the amount by which the Taxes for such Tax Year are greater than the
Base Tax Amount. Notwithstanding the provisions of the foregoing sentence, in
the event that Landlord or any Landlord Affiliate (the identity of whom Landlord
has provided Tenant with prior notice) shall sell any of their condominium units
in the FC Office Units to a third party during the term of this Lease, then,
with respect to the calculation of any Tax Payment required to be made by Tenant
from and after the later of: (i) the date of such sale or (ii) the date that the
taxing authority shall designate a separate tax lot for the portion of the FC
Office Units which continue to be owned by Landlord and/or any Landlord
Affiliate and includes the Premises (the "TAX ADJUSTMENT DATE")(including any
portion of the Tax Payment for the Tax Year in which such designation is made
accruing after the Tax Adjustment Date), (x) an appropriate reduction in the
Base Tax Amount shall be made by Landlord and Tenant to reflect the amount of
Taxes that were incurred during the Tax Year in which the Commencement Date
occurred with respect to only the portion of the FC Office Units which remain
within the tax lot owned by Landlord and/or any Landlord Affiliate after the Tax
Adjustment Date and (y) an appropriate modification to Tenant's Tax Share shall
be made by Landlord and Tenant to reflect the reduction in the number of
rentable square feet of area in the FC Office Units after the Tax Adjustment
Date. Any dispute between Landlord and Tenant with respect to such reduction or
modification shall be determined by "Expedited Arbitration" (as defined in
Article 35 of this Lease). The Tax Payment for each Tax Year shall be due and
payable in installments in the same manner that Taxes for such Tax Year are due
and payable by Landlord under the Unit Lease, if applicable, or otherwise to the
City of New York. Tenant shall pay Tenant's Tax Share of each such installment
within twenty (20) days after the rendering of a statement therefor by Landlord
to Tenant, which statement shall be rendered by Landlord so as to require
Tenant's Tax Share of Taxes to be paid by Tenant no more than ten (10) days
prior to the date such Taxes first become due, provided, however, that if a
Superior Mortgagee shall require that Landlord make monthly or other less
frequent periodic escrow payments of Taxes, then Landlord shall so notify Tenant
and effective thirty (30) days following Tenant's receipt of such notice
Tenant's Tax Payments shall be made to Landlord in installments at least ten
(10) days before such periodic escrow deposits are due under the terms of such
Superior Mortgage. The statement to be rendered by Landlord shall set forth in
reasonable detail the computation of Tenant's Tax Share of the particular
installment(s) being billed (and, upon written request from Tenant, Landlord
shall provide Tenant with a copy of the tax xxxx from the taxing authorities
relevant to the computation of Tenant's Tax Payment). If there shall be any
increase in the Taxes for any Tax Year, whether during or after such Tax Year,
or if there shall be any decrease in the Taxes for any Tax Year, whether during
or after such Tax Year, the Tax Payment for such Tax Year shall be appropriately
adjusted and paid or refunded, as the case may be, in accordance herewith.
(b) If Landlord shall receive a refund of the Taxes for any Tax
Year, Landlord shall either pay to Tenant, or permit Tenant to credit against
subsequent payments under this Article, Tenant's Tax Share of the net refund
(after deducting from such refund the costs and expenses, including, without
limitation, reasonable appraisal and counsel fees of obtaining same to the
extent that the same have not theretofore been paid by Tenant pursuant to
Section 3.02(g)
18
hereof); provided, however, such payment to Tenant shall in no event exceed
Tenant's Tax Payment paid for such Tax Year.
(c) Landlord shall, with respect to each Tax Year, initiate and
pursue in good faith an application or proceeding seeking a reduction in Taxes
or the assessed valuation of the Unit; provided, however, that Landlord shall
not be required to initiate or pursue any such application or proceeding for any
such Tax Year if Landlord obtains with respect to such Tax Year a letter from a
recognized certiorari attorney or consultant that in such person's opinion, it
would not be advisable or productive to bring such application or proceeding and
a reasonably detailed explanation from such recognized certiorari attorney or
consultant setting forth the basis for such person's opinion.
(d) In respect of any Tax Year which begins prior to the occurrence
of the Commencement Date or terminates after the Expiration Date, the Tax
Payment in respect of each such Tax Year or tax refund pursuant to subdivision
(b) above therefor shall be prorated accordingly.
3.03. (a) For each Operating Year, subsequent to the Base Operating Year,
any part of which shall occur during the term of this Lease, Tenant shall pay to
Landlord as Additional Charges an amount ("OPERATING PAYMENT") equal to the sum
of Tenant's Operating Share of the amount by which the Operating Expenses for
such Operating Year exceed the Base Operating Amount. Notwithstanding the
provisions of the foregoing sentence, in the event that Landlord or Landlord
Affiliates shall sell any of their condominium units in the FC Office Units to a
third party during the term of this Lease, then, with respect to the calculation
of any Operating Payment required to be made by Tenant from and after the date
of such sale (including any portion of the Operating Payment for the Operating
Year in which such sale occurs accruing after the date of such sale) (x) an
appropriate reduction shall be made by Landlord and Tenant in the Base Operating
Amount to reflect the amount of Operating Expenses that were incurred during the
Base Operating Year with respect to only the portion of the FC Office Units
which remain owned by Landlord and Landlord Affiliates after such sale and (y)
an appropriate modification to Tenant's Operating Share shall be made by
Landlord and Tenant to reflect the reduction in the number of rentable square
feet of area in the FC Office Units after such sale. Any dispute between
Landlord and Tenant with respect to such reduction shall be determined by
Expedited Arbitration.
(b) Landlord may furnish to Tenant, prior to or following the
commencement of each Operating Year a written statement setting forth in
reasonable detail Landlord's reasonable estimate of the Operating Payment for
such Operating Year. Such estimate shall be accompanied by a reasonably detailed
explanation of such increase. In the event that Tenant disputes an estimate of
the Operating Payment which reflects an increase in total Operating Expenses for
the Building, Tenant shall have the right to challenge such estimate
substantially in the manner set forth in Section 3.03(d) below. Tenant shall pay
to Landlord on the first day of each month during the Operating Year in which
the Operating Payment will be due, an amount equal to one-twelfth (1/12th) of
Landlord's reasonable estimate of the Operating Payment for
19
such Operating Year. If, however, Landlord shall not furnish any such estimate
for an Operating Year or if Landlord shall furnish any such estimate for an
Operating Year subsequent to the commencement thereof, then until the first day
of the month following the month in which such estimate is furnished to Tenant,
Tenant shall pay to Landlord on the first day of each month an amount equal to
the monthly sum payable by Tenant to Landlord under this Article 3 in respect of
the last month of the preceding Operating Year. After such estimate is furnished
to Tenant, Landlord shall give notice to Tenant stating whether the installments
of the Operating Payment previously made for such Operating Year were greater or
less than the installments of the Operating Payment to be made for the Operating
Year in which the Operating Payment will be due in accordance with such
estimate, and (A) if there shall be a deficiency, Tenant shall pay the amount
thereof within thirty (30) days after demand therefor, or (B) if there shall
have been an overpayment, Landlord shall within thirty (30) days of such notice
refund to Tenant the amount thereof, together with interest thereon at the
Interest Rate from the date of the payment to which such refund relates until
the date that Landlord shall pay such refund to Tenant in the event that the
Operating Expenses for the preceding Operating Year shall exceed the Operating
Expenses for the Operating Year in which the Operating Payment will be due in
accordance with such estimate. On the first day of the month following the month
in which such estimate is furnished to Tenant and monthly thereafter throughout
the remainder of such Operating Year Tenant shall pay to Landlord an amount
equal to one-twelfth (1/12th) of the Operating Payment shown on such estimate.
Landlord may, during each Operating Year, furnish to Tenant one revised
statement of Landlord's reasonable estimate of the Operating Payment for such
Operating Year, and in such case, the Operating Payment for such Operating Year
shall be adjusted and paid or refunded or credited as the case may be,
substantially in the same manner as provided in the preceding sentence.
(c) Landlord shall furnish to Tenant a Landlord's Statement for each
Operating Year within two hundred seventy (270) days after the end of each
Operating Year. Such statement shall set forth in reasonable detail the
Operating Expenses for such Operating Year. If the Landlord's Statement shall
show that the sums paid by Tenant, if any, under subsection 3.03(b) exceeded the
Operating Payment to be paid by Tenant for the Operating Year for which such
Landlord's Statement is furnished, Landlord shall refund to Tenant the amount of
such excess, together with interest thereon at the Interest Rate from the date
of the payment to which such refund relates until the date that Landlord shall
pay such refund to Tenant in the event that Landlord's estimate of Operating
Expenses pursuant to subsection 3.03(b) exceeded the Operating Expenses for the
Operating Year for which such Landlord's Statement is furnished; and if the
Landlord's Statement for such Operating Year shall show that the sums so paid by
Tenant were less than the Operating Payment to be paid by Tenant for such
Operating Year, Tenant shall pay the amount of such deficiency within thirty
(30) days after demand therefor. If the Landlord's Statement for any Operating
Year is not delivered to Tenant within one (1) year after the end of such
Operating Year, Tenant shall not be obligated to make the monthly payment of
Operating Expenses until such Landlord's Statement is delivered to Tenant in
which event, within thirty (30) days after receipt of such Landlord's Statement,
Tenant shall pay to Landlord any installments of Tenant's Operating Payment
which were so withheld by Tenant.
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(d) (i) Tenant, upon reasonable notice given within one hundred
eighty (180) days of the receipt of such Landlord's Statement and the execution
of a confidentiality agreement in the form attached hereto as Exhibit L
("CONFIDENTIALITY AGREEMENT"), may elect to have Tenant's designated (in such
notice) representative ("TENANT'S REPRESENTATIVE"), which Tenant's
Representative may or may not be an employee of Tenant (but who shall not be
compensated for services on a contingency or success fee basis), examine such of
Landlord's books and records (collectively "RECORDS") as are relevant to the
Landlord's Statement in question, together with reasonable supporting data
therefor, including applicable Records for the Base Operating Year or Base Tax
Year, as the case may be, such examination to occur during Business Hours and
upon at least ten (10) Business Days prior notice to Landlord, and which shall
commence not later than forty-five (45) days following the date of Tenant's
notice. If Tenant shall not give timely notice under this subsection 3.03(d)(i)
with respect to any Landlord's Statement it shall be deemed to have waived its
right of examination under this Section 3.03(d)(i) with respect thereto and such
Landlord's Statement shall be conclusive and binding on Tenant.
(ii) Landlord hereby agrees to maintain and preserve its
Records with respect to each Operating Year for a period of at least three (3)
years following the delivery of Landlord's Statement with respect thereto.
Notwithstanding anything to the contrary contained herein, in the event that any
examination pursuant to subsection 3.03(d)(i) results in a finding of a
discrepancy with respect to any item of Operating Expenses, Tenant, upon
reasonable prior notice given within thirty (30) days after such finding, may
elect to have Tenant's designated Tenant's Representative examine or re-examine
such of the Records as are relevant to such item or any other similar item as
included in Landlord Statements for all prior years during the term of the Lease
for which Landlord shall then be retaining Records, as required pursuant to this
subsection 3.03 (d)(ii).(9)
(iii) Tenant shall, at Tenant's expense, have the right to
obtain copies and/or make abstracts of the Records as it may request in
connection with its verification of any such Operating Statement, subject to the
provisions of the Confidentiality Agreement.
(iv) In the event that Tenant within one hundred eighty (180)
days year from the date on which the Records are all made available to Tenant,
(which period shall be extended by one (1) day for each day, if any, that
Landlord fails to provide Tenant with any additional relevant information in
Landlord's possession or under Landlord's control with regard to the Operating
Payment which is reasonably requested by Tenant), shall disagree with the
Landlord's Statement, then Tenant may, as its sole remedy to adjust disputes
with Landlord concerning a Landlord Statement (except in the event of Landlord's
fraud), send a written notice (hereinafter called "TENANT'S STATEMENT") to
Landlord of such disagreement, specifying the basis for Tenant's disagreement
and Tenant's determination of the Operating Payment for the year question.
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(9) If and for so long as Ground Lessor is (i) the "Landlord" under this
Lease and (ii) a governmental entity or a public benefit corporation, the
provisions of this subparagraph 3.03(d)(ii) shall not be applicable.
21
Landlord and Tenant shall attempt to adjust such disagreement.
If they are unable to do so within thirty (30) days, Landlord and Tenant shall
designate a certified public accountant (hereinafter called the "ARBITER") whose
determination of the Operating Payment for the year in question made in
accordance with this subsection 3.03(d)(iv) shall be binding upon the parties.
If the determination of the Arbiter shall substantially
confirm the determination of Landlord and not substantially confirm the
determination of Tenant, then Tenant shall pay the cost of the Arbiter. If the
determination of the Arbiter shall substantially confirm the determination of
Tenant and not substantially confirm the determination of Landlord, then
Landlord shall pay the cost of the Arbiter. In all other events, the cost of the
Arbiter shall be borne equally by Landlord and Tenant. The term "SUBSTANTIALLY"
as used herein, shall mean the determination of the Arbiter shall find a
variance of 5% or less in the aggregate of either Landlord's or Tenant's
determination, as applicable.
The Arbiter shall be a member of an independent certified
public accounting firm having at least three (3) accounting professionals and
having at least ten (10) years of experience in commercial real estate
accounting. In the event that Landlord and Tenant shall be unable to agree upon
the designation of the Arbiter within thirty (30) days after receipt of notice
from the other party requesting agreement as to the designation of the Arbiter,
which notice shall contain the names and addresses of two or more certified
public accountants who are acceptable to the party sending such notice (any one
of whom, if acceptable to the party receiving such notice as shall be evidenced
by notice given by the receiving party to the other party within such thirty
(30) day period, shall be the agreed upon Arbiter), then either party shall have
the right to request the American Arbitration Association (the "AAA") (or any
organization which is the successor thereto) to designate as the Arbiter a
certified public accountant whose determination of the Operating Payment made in
accordance with this subsection 3.03(d)(iv) shall be conclusive and binding upon
the parties, and the cost charged by the AAA (or any organization which is the
successor thereto), for designating such Arbiter, shall be shared equally by
Landlord and Tenant. In rendering its determination the Arbiter shall not add
to, subtract from or otherwise modify the provisions of this Lease.
3.04. In any case provided in this Article 3 in which Tenant is entitled
to a refund, at Landlord's option, Landlord may, in lieu of such refund (In any
event if Landlord does not refund such amount to Tenant within 30 days after
such amount is due then Tenant may offset such amount against the next due
installment of Fixed Rent and Additional Charges.) credit against the next
installments of Fixed Rent and Additional Charges any amounts to which Tenant
shall be entitled until such credit shall have been exhausted. If this Lease
shall expire before any such credit shall have been fully applied, then Landlord
shall refund to Tenant the unapplied balance of such credit within thirty (30)
days after the last day of the term of this Lease.
3.05. Each year during the term of this Lease. Tenant shall pay to
Landlord as an Additional Charge the Theatre Surcharge (as defined in Section
3.5(a) of the Ground Lease)
22
which is charged to the Premises in accordance with the Ground Lease, such
payment to be made within thirty (30) Business Days following Landlord's invoice
to Tenant therefor. If the Commencement Date shall occur on a date other than
the first day of a calendar year and/or if the Expiration Date shall occur on a
date other than the last day of a calendar year, the Theatre Surcharge payable
by Tenant for the partial calendar year in which the Commencement Date or the
Expiration Date, as the case may be, occurs, shall be reduced pro rata to
reflect the number of days in the applicable calendar year that this Lease is in
effect.
ARTICLE 4
SECURITY DEPOSIT
23
4.01. Tenant has deposited with Landlord the sum of one year's Fixed Rent
as security for the full and faithful performance and observance by Tenant of
Tenant's covenants and obligations under this lease. If Tenant defaults in the
full and prompt payment and performance of any of Tenant's covenants and
obligations under this lease, including, but not limited to, the payment of
Fixed Rent and Additional Charges, and such default continues after the giving
of notice and the expiration of applicable cure periods under this Lease,
Landlord may, but shall not be required to, use, apply or retain the whole or
any part of the security so deposited and the interest accrued thereon, if any,
to the extent required for the payment of any Fixed Rent and Additional Charges
or any other sums as to which Tenant is in default or for any sum which Landlord
may expend or may be required to expend by reason of Tenant's default in respect
of any of the terms, covenants and conditions of this lease, including, but not
limited to, any damages or deficiency in the reletting of the Premises, whether
such damages or deficiency accrue before or after summary proceedings or other
re-entry by Landlord. If Landlord shall so use, apply or retain the whole or any
part of the security or the interest accrued thereon, if any, Tenant shall upon
demand immediately deposit with Landlord a sum equal to the amount so used,
applied or retained, as security as aforesaid failing which Landlord shall have
the same rights and remedies as for the non-payment of Fixed Rent beyond the
applicable grace period. If Tenant shall fully and faithfully comply with all of
Tenant's covenants and obligations under t this lease, the security or any
balance thereof, to which Tenant is entitled, shall be returned or paid over to
Tenant after the date fixed as the end of this lease and after delivery to
Landlord of entire possession of the Premises. In the event of any sale,
transfer or leasing of Landlord's interest in the Building whether or not in
connection with a sale, transfer or leasing of the Land to a vendee, transferee
or lessee, Landlord shall have the right to transfer the unapplied part of the
security and the interest thereon, if any, to which Tenant is entitled, to the
vendee, transferee or lessee and Landlord shall thereupon be released by Tenant
from all liability for the return or payment thereof, and Tenant shall look
solely to the new landlord for the return or payment of the same. The provisions
of the preceding sentence shall apply to every subsequent sale, transfer or
leasing of the Building, and any successor of Landlord may, upon a sale,
transfer, leasing or other cessation of the interest of such successors in the
Building, whether in whole or in part, pay over any unapplied part of said
security to any vendee, transferee or lessee of the Building and shall thereupon
be relieved of all liability with respect thereto. Except in connection with a
permitted assignment of this lease, Tenant shall not assign or encumber or
attempt to assign or encumber the monies deposited herein as security or any
interest thereon to which Tenant is entitled, and neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
4.02. In lieu of cash security required hereunder, at any time during the
term of this Lease, Tenant may, at Tenant's election, deposit with Landlord a
letter of credit from a bank reasonably acceptable to Landlord substantially in
the form annexed hereto as EXHIBIT D in the amount of the security required
under Section 4.01 hereof, and simultaneously with delivery of such letter of
credit, the cash security shall be returned to Tenant.(10)
----------
(10) Article 4 to be deleted if (i) Tenant of Lease is NYTC or (ii) Tenant
of Lease is an Affiliate of NYTC and Tenant provides a guaranty from NYTC in the
form annexed hereto as Exhibit K; and, in the event of either (i) or
24
ARTICLE 5
SUBORDINATION, NOTICE TO LESSOR UNDER THE UNIT LEASE AND MORTGAGEES
5.01. Subject to the provisions of Section 5.05 hereof, this Lease, all
rights of Tenant hereunder, are and shall be subject and subordinate to the
"Unit Lease" (as such term is defined in the Declaration), all matters and
instruments to which the Unit Lease is subordinate and to all other ground
leases or underleases or mortgages which may now or hereafter affect the Unit,
to each and every advance made or hereafter to be made under such mortgages, and
to all renewals, modifications, replacements and extensions of the Unit Lease
and such mortgages and spreaders and consolidations of such mortgages. This
Section 5.01 shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall promptly
execute, acknowledge and deliver any instrument that Landlord, the lessor under
the Unit Lease or any ground or underlying lease or the holder of any such
mortgage or any of their respective successors in interest may reasonably
request to evidence such subordination. Any mortgage to which this Lease is, at
the time referred to, subject and subordinate is herein called a "SUPERIOR
MORTGAGE" and the holder of a Superior Mortgage is herein called a "SUPERIOR
MORTGAGEE". Any ground lease or underlying lease to which this Lease is, at the
time referred to, subject and subordinate is herein called a "SUPERIOR LEASE"
and the lessor under a Superior Lease is herein called a "SUPERIOR LESSOR".
5.02. Subject to the provisions of any SNDA Agreement between Tenant and
any Superior Mortgagee or Superior Lessor, if any act or omission of Landlord
would give Tenant the right, immediately or after lapse of a period of time, to
cancel or terminate this Lease or to claim a partial or total eviction (other
than a right of cancellation, termination, abatement or offset specifically
provided for in this Lease), Tenant shall not exercise such right (a) until it
has given written notice of such act or omission to Landlord and each Superior
Mortgagee and Superior Lessor whose name and address shall previously have been
furnished to Tenant, and (b) until the period to which Landlord would be
entitled under this Lease or otherwise, after similar notice, to effect the
remedy of such act or omission shall have elapsed following the giving of such
notice and following the time when such Superior Mortgagee or Superior Lessor
shall have become entitled under such Superior Mortgage or Superior Lease, as
the case may be, to remedy the same, provided such Superior Mortgagee or
Superior Lessor shall with due diligence give Tenant notice of intention to, and
commence and continue to, remedy such act or omission.
5.03. Subject to the provisions of any SNDA Agreement between any Superior
Mortgagee or Superior Lessor, if a Superior Lessor or any Superior Mortgagee, or
any designee of any Superior Lessor or any Superior Mortgagee, shall succeed to
the rights of Landlord under this Lease, whether through possession or
foreclosure action or delivery of a new lease or deed, then at the request of
such party so succeeding to Landlord's rights ("SUCCESSOR LANDLORD") and upon
--------------------------------------------------------------------------------
(ii), NYTC has a credit rating of A- or better as determined by the Rating
Agency (as defined in the Declaration).
25
such Successor Landlord's written agreement to accept Tenant's attornment,
Tenant shall attorn to and recognize such Successor Landlord as Tenant's
landlord under this Lease and shall promptly execute and deliver any instrument
that such Successor Landlord may reasonably request to evidence such attornment.
Upon such attornment this Lease shall continue in full force and effect as a
direct lease between the Successor Landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this Lease, the Successor Landlord
shall not be:
(a) liable for any accrued obligation of Landlord, or for any act or
omission of Landlord, prior to such foreclosure or sale, except that such
non-liability shall in no way diminish Tenant's rights under this Lease with
respect to the continuing failure of the Successor Landlord to perform the
obligations of any prior Landlord under this Lease after the date upon which the
Successor Landlord succeeds to the interests of Landlord under this Lease,
(b) required to perform or provide any services not expressly set
forth in this Lease, or
(c) subject to any offsets (other than offsets expressly provided
for in this Lease), defenses or counterclaims which have accrued against
Landlord prior to the date Successor Landlord succeeds to the interests of
Landlord under this Lease;
5.04. Landlord hereby represents that:(11)
(a) there are no ground, superior or underlying leases affecting the
Premises as of the date hereof other than the Unit Lease and the "Ground Lease"
as such term is defined in the Declaration, and
(b) the only existing Superior Mortgage as of the date hereof is
that certain _________________________________________________________ (the
"EXISTING MORTGAGE").
5.05. (a) Concurrently with execution of this Lease, Landlord, Tenant and
the Superior Mortgagee under the existing Superior Mortgage, have executed a
subordination, non-disturbance and attornment agreement (an "SNDA AGREEMENT")
with respect to the Existing Mortgage substantially in the form annexed hereto
as Exhibit E.
(b) Concurrently with execution of this Lease, Landlord, Tenant and
the Ground Lessor have executed a subordination, non-disturbance and attornment
agreement (the
----------
(11) If and for so long as the "Landlord" under this Lease is (A)(i)
Ground Lessor and (ii) a governmental entity or a public benefit corporation, or
(B) the party acquiring the interest of the "Landlord" in this Lease from such
governmental entity or public benefit corporation (but not any other party who
becomes the "Landlord" under this Lease). the preamble to Section 5.04 shall
read "Landlord hereby represents that to Landlord's knowledge:"
26
"UNIT LEASE SNDA AGREEMENT") with respect to the Unit Lease in the form annexed
hereto as Exhibit F.
(c) With respect to future Superior Mortgages and Superior Leases,
the provisions of Section 5.01 hereof shall be conditioned upon the execution,
acknowledgment and delivery by and between Tenant and any such Superior
Mortgagee or Superior Lessor, of an agreement which
(i) shall provide in substance that so long as no default
exists hereunder beyond any applicable grace period (if any), Tenant
shall not be disturbed in its possession of the Premises pursuant to
the provisions of this Lease and
(ii) shall not, except to A DE MINIMIS extent, reduce the
rights of Tenant or increase the obligations of Tenant in either
case as compared to the SNDA Agreement in Exhibit E annexed hereto,
in the case of future Superior Mortgages, or the Unit Lease SNDA
Agreement in Exhibit F annexed hereto, in the case of future
Superior Leases.
(any SNDA Agreement which satisfies the requirements of clause (i) and (ii)
above is a "QUALIFYING SNDA AGREEMENT"). Any dispute as to whether a proposed
agreement constitutes a Qualifying SNDA Agreement may be submitted by either
party for resolution by arbitration in accordance with Article 35 hereof.
ARTICLE 6
QUIET ENJOYMENT
6.01. So long as Tenant pays all of the Fixed Rent and Additional Charges
and is not in default after notice and the expiration of any grace period with
respect to such default, Tenant shall peaceably and quietly have, hold and enjoy
the Premises without hindrance, ejection or molestation by Landlord or any
person lawfully claiming through or under Landlord, subject, nevertheless, to
the provisions of this Lease, the Declaration, the By-laws, the Unit Lease and
any Superior Leases and Superior Mortgages.
ARTICLE 7
ASSIGNMENT AND SUBLETTING
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7.01. (a) Subject to the provisions of subsections 7.01(b), 7.01(c) and
7.01(e) hereof, Tenant shall have the right, without the consent or approval of
Landlord, to (i) assign or otherwise transfer this Lease, (ii) sublet the
Premises or any part thereof and modify or terminate any existing sublease,
and/or (iii) allow not more than one-half of the rentable square footage of the
Premises or any portion(s) thereof to be used, occupied or utilized by third
parties who are providing a material business service to Tenant ("Users").
Tenant agrees to notify Landlord at least thirty (30) days prior to taking any
action referred to in clauses (i), (ii) or (iii) of the immediately preceding
sentence, which notice, in the case of an assignment of this Lease, shall be
accompanied by a duly executed counterpart of an assignment and assumption
instrument whereby the assignee agrees to assume the obligations of Tenant under
this Lease accruing from and after the effective date of such assignment.
Notwithstanding the foregoing, no User shall be in privity with the Landlord
under this Lease and Landlord shall have no obligations to any User under this
Lease for any reason whatsoever in connection with such Users' occupancy of the
Premises. No separate entrances to the Premises from public or common areas
shall be constructed to provide access to the space used by any User. No User
shall use the Premises, or any portion thereof for a use that is prohibited by
the terms of this Lease. Any breach or violation of this Lease by any User shall
be deemed to be and shall constitute a default by Tenant under this Lease, and
subject to the foregoing notice requirement any act or omission of a User shall
be deemed to be and shall constitute an act or omission of Tenant under this
Lease. Tenant hereby indemnifies and holds harmless Landlord against any loss,
claim or damage arising from the acts or omissions of any User in or about the
Premises.
(b) Except for any assignment to a Tenant Affiliate pursuant to
paragraph 7.01(d) hereof, if Tenant shall at any time or times during the term
of this Lease desire to assign this Lease, Tenant shall give notice thereof
(herein called an "Assignment Recapture Offer Notice") to Landlord, which notice
shall set forth: (i) Tenant's intention to assign this Lease, (ii) the proposed
date upon which the Premises are intended or proposed (as the case may be) to be
vacated by Tenant, which date shall be no sooner than sixty 60 days after the
Assignment Recapture Offer Notice, and (iii) the consideration which Tenant
would be willing to accept from a third party in connection with an assignment
of this Lease to a third party. Such Assignment Recapture Offer Notice shall be
deemed an offer from Tenant to Landlord whereby Landlord shall terminate this
Lease if Landlord accepts such offer. Said option may be exercised by Landlord
by notice (herein called "Landlord's Assignment Recapture Notice") given to
Tenant at any time within thirty (30) days after such Assignment Recapture Offer
Notice has been given by Tenant to Landlord (herein called the "Assignment
Recapture Period"), and time shall be of the essence with respect to the
delivery to Tenant of the Landlord's Assignment Recapture Notice prior to the
expiration of the Assignment Recapture Period.
(c) If Landlord exercises its option to terminate this Lease by
delivering to Tenant Landlord's Assignment Recapture Notice, then this Lease
shall end and expire on the date the proposed assignment was to be effective and
the Fixed Rent and Additional Charges shall be paid and apportioned to such
date. If Landlord does not exercise its option to terminate this Lease prior to
the expiration of the Assignment Recapture Period, then Tenant may assign this
Lease to a third party within Two Hundred Seventy (270) days following the
expiration of the Assignment
28
Recapture Period provided the consideration payable to Tenant for the assignment
on a net present value basis (using a discount rate of 9% per annum) is not more
than five (5%) percent less than the consideration set forth in the Assignment
Recapture Offer Notice. In the event that Tenant desires to assign this Lease
either (i) for consideration payable to Tenant (on a net present value basis
[using a discount rate of 9% per annum]) which is more than five (5%) percent
less than the consideration set forth in the Assignment Recapture Offer Notice
or (ii) at any time after two hundred seventy (270) days following the
expiration of the Assignment Recapture Period, then before Tenant may assign
this Lease to a third party Tenant must first provide Landlord with another
Assignment Recapture Offer Notice which sets forth the new terms that Tenant
would be willing to accept from a third party. Landlord shall have the right to
accept such offer as is set forth in Section 7.01(b) and the provisions of
Section 7.01(b) shall apply to such Assignment Recapture Offer Notice.
(d) Notwithstanding the provisions of this Section 7.01 to the
contrary, Tenant shall have the right, without being subject to Landlord's
option as described in paragraph 7.01(b) to assign this Lease to a "Tenant
Affiliate". For purposes hereof, the term "Tenant Affiliate" means a
corporation, partnership, limited liability company or other entity (i) into or
with which Tenant is merged or consolidated or, (ii) to which substantially all
of Tenant's assets are transferred, or (iii) which controls is controlled by or
is under common control with Tenant. For purposes of this Section 7.01(d) the
term "control" means the ownership or voting control, directly or indirectly, of
50% or more of the voting stock, partnership, membership or similar interests in
such entity.
(e) Notwithstanding anything to the contrary provided in Section
7.01(a), except for an assignment of this Lease or a sublease of all or any
portion of the Premises to a Tenant Affiliate in accordance with Section
7.01(d), Tenant shall not, whether voluntarily, involuntarily or by operation of
law assign or otherwise transfer the Lease or sublet all or any portion of the
Premises (including entering into a so-called "takeover" agreement for the
Premises), without in each instance obtaining the prior written consent of
Landlord (such consent to not be unreasonably withheld, delayed or conditioned).
Without limitation, Landlord shall be deemed to have reasonably withheld its
consent if:
(i) the proposed sublessee or assignee is a Prohibited Person
(as defined in any Superior Lease) or falls within the
categories described in items (2) - (18) on Exhibit I to the
Declaration;
(ii) Landlord has actively negotiated with the proposed
sublessee or assignee for space in the FC Office Units which
is either of a comparable size as the Premises (in the case of
a proposed assignment) or of a comparable size as the proposed
premises to be sublet (in the case of a proposed sublease)
within the ninety (90) days immediately prior to Landlord's
receipt of written notice from Tenant which indicates that
Tenant has entered into negotiations with the proposed
sublessee or assignee, provided, however, that if within ten
(10) Business Days after
29
Landlord's receipt of such notice, Landlord has not certified
to Tenant that Landlord has actively negotiated with such
proposed assignee or sublessee within the prior ninety (90)
days, then Landlord shall not be deemed to have reasonably
denied its consent to such proposed assignment or subleasing
on the grounds that it has actively negotiated with such party
within the prior ninety (90) days;
(iii) the proposed sublessee or assignee is then a tenant in
other premises in the FC Office Units;
(iv) the terms and provisions of the proposed sublease do not
state that they are subject to the provisions of the Lease;
(v) the terms of the proposed assignment or sublease do not
state that the proposed assignee or sublessee, as the case may
be, shall not have the right to further sublet its demised
premises or further assign this Lease or allow its demised
premises to be used by others except in compliance with the
terms and provisions of this Article 7;
(f) No User, Subtenant or assignee may use the Premises for a use
that violates the exclusive use rights of any other tenant of the FC Office
Units, which exclusive uses are set forth on Exhibit G annexed hereto.
Notwithstanding the preceding sentence, the provisions of this Section 7.01(f)
shall not be applicable to and shall not restrict the use of the Premises for,
the conduct of any business owned by or any business activity conducted by the
New York Times Company.
(g) Landlord's consent to an assignment or sublease shall be given
or withheld (and if withheld, Landlord's notice withholding such consent shall
set forth with specificity the reasons for such withholding) on or before the
date that is ten (10) Business Days after Landlord's receipt of Tenant's request
for such consent. If Landlord fails to respond to Tenant's request for an
assignment or sublease within such ten (10) Business Day period, Landlord shall
be deemed to have granted its consent to such transaction provided that Tenant's
request shall state that Landlord's failure to withhold its consent to the
proposed assignment or sublease, as the case may be, within ten (10) Business
Days shall be deemed a consent by Landlord.
(h) Tenant shall not enter into any amendment to a sublease (with
respect to which Landlord's consent was required) without obtaining the prior
written consent of Landlord unless such amendment provides for (i) the
termination of the term of the sublease prior to its expiration; or (ii) the
reduction, abatement or deferral of any rent, additional rent or other charges,
provided such reduction, abatement or deferral is for a good business purpose.
Landlord's consent shall not be required for any amendment to a sublease
described in clauses (i) and (ii) of this Section 7.10(h).
30
(i) Any assignment or transfer, or attempted assignment or transfer,
of this Lease and any sublease, or any attempted sublease, of all or any portion
of the Premises which is undertaken by Tenant in violation of the provisions of
this Article shall be void AB INITIO.
7.02. If this Lease be assigned, Landlord may collect rent from the
assignee. If the Premises or any part thereof are sublet or used or occupied by
anybody other than Tenant, Landlord may, after default by Tenant, and expiration
of Tenant's time to cure such default, collect rent from the subtenant or
occupant. In either event, Landlord shall apply the net amount collected to the
Fixed Rent and Additional Charges herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed the acceptance of the
assignee, subtenant or occupant as tenant, or a release of Tenant from the
performance by Tenant of Tenant's obligations under this Lease.
7.03. The original named Tenant covenants that, notwithstanding any
assignment or transfer, whether or not in violation of the provisions of this
Lease, and notwithstanding the acceptance of Fixed Rent and/or Additional
Charges by Landlord from an assignee, transferee, or any other party, the
original named Tenant shall remain primarily liable for the payment of the Fixed
Rent and Additional Charges and for the performance and observance of other
obligations of this Lease on the part of Tenant to be performed or observed.
7.04. The joint and several liability of Tenant and any immediate or
remote successor in interest of Tenant for the due performance and observance of
the obligations of this Lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease. If any such agreement or modification
operates to increase the obligations of a tenant under this Lease (the "THEN
TENANT"), the liability of all predecessors to the Then Tenant shall continue to
be no greater than if such agreement or modification had not been made (except
as any such predecessor shall otherwise agree).
7.05. With respect to each and every sublease or subletting under
the provisions of this Lease, it is further agreed that:
(a) No subletting shall be for a term (including any renewal
or extension options contained in the sublease) ending later than one day prior
to the expiration date of this Lease; and
(b) Each sublease shall provide that it is subject and
subordinate to this Lease and to any matters to which this Lease is or shall be
subordinate, and that in the event of termination, reentry or dispossess by
Landlord under this Lease Landlord may, at its option, take over all of the
right, title and interest of Tenant, as sublessor, under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not be (i)
liable for any previous act or omission of Tenant under such sublease, (ii)
subject to any credit, offset, claim, counterclaim, demand or
31
defense which such subtenant may have against Tenant, (iii) bound by any
previous modification of such sublease or by any previous prepayment of more
than one (1) month's rent, (iv) required to account for any security deposit of
the subtenant other than any security deposit actually delivered to Landlord by
Tenant, (vi) bound by any obligation to make any payment to such subtenant or
grant any credits, except for services, repairs, maintenance and restoration
provided for under the sublease to be performed after the date of such
attornment, or (vii) responsible for any monies owing by Landlord to the credit
of Tenant; and
(c) Provided that Landlord shall have space comparable in size
then available, or to become available, for leasing in the Building that
Landlord has elected to Lease to tenants, within nine (9) months from the
effective date of the proposed subletting, (herein called "Comparable Space"),
the proposed sublessee shall not then be an occupant of any part of the Building
or a party with whom Landlord has been actively negotiating with respect to
space in the Building during the ninety (90) day period immediately preceding
Landlord's receipt of a notice from Tenant to Landlord (herein called a "Tenant
Negotiation Notice") that Tenant has entered into negotiations with such party;
provided, however, that if Landlord shall have failed to identify in writing,
such Comparable Space or a prospective subtenant identified in a Tenant
Negotiation Notice as a party within ten (10) Business Days following Landlord's
receipt of a Tenant Negotiation Notice, the foregoing condition shall not apply
to the subletting in question.
7.06. Each subletting shall be subject to all of the covenants,
agreements, terms, provisions and conditions contained in this Lease.
Notwithstanding any such subletting to any subtenant and/or acceptance of rent
or additional rent by Landlord from any subtenant, Tenant shall and will remain
fully primarily liable for the payment of the Fixed Rent and Additional Charges
due and to become due hereunder and for the performance of all the covenants,
agreements, terms, provisions and conditions contained in this Lease on the part
of Tenant to be performed and all acts and omissions of any licensee or
subtenant or anyone claiming under or through any subtenant which shall be in
violation of any of the obligations of this Lease, and any such violation shall
be deemed to be a violation by Tenant.
7.07. (a) In the event of any sublease other then to a Tenant
Affiliate, Tenant shall in consideration therefor, pay to Landlord, as
Additional Charges an amount equal to fifty (50%) percent of any "Sublease
Profit" (as such term is hereinafter defined), after deducting therefrom the
amount of "Tenant's Costs" (as such term is hereinafter defined).
(b) For purposes of this Section 7.07, the term "Sublease
Profit" shall mean, for the term of the applicable sublease (the "Sublease
Term"):
(1) any rents, additional charges or other
consideration payable under the sublease or other
occupancy agreement to Tenant by the subtenant or
other occupant which is in excess of the Fixed
Rent and Additional Charges accruing during the
Sublease Term in respect of the subleased space
(at the rate per square foot payable by Tenant
hereunder) pursuant to the terms hereof, and
32
(2) all sums paid for the sale or rental of Tenant's
fixtures, leasehold improvements, equipment,
furniture or other personal property, less:
1. in the case of a sale or rental of property
which is deemed to be in the property of
Landlord pursuant to the provisions of
Article 12 hereof; zero;
2. in the case of a sale of Tenant's Property,
the then net unamortized or undepreciated
portion (determined on the basis of Tenant's
federal income tax returns) of the original
cost thereof; or
3. in the case of a rental of Tenant's
Property, the fair rental value thereof.
(c) The sums payable under this Section 7.07, if any, shall be
paid to Landlord within thirty (30) days after the same are paid by the
subtenant to Tenant.
(d) For purposes hereof, the term "Tenant's Cost" shall mean:
(1) the amount of any commercially reasonable
brokers' fees or commissions paid to any
brokers as a result of any subletting by
Tenant hereunder and any transfer, sales or
gains taxes paid by Tenant in connection
with such subletting;
(2) the cost to Tenant of any improvements made
to prepare the space in question for the
occupancy of the subtenant and any rent
abatement and/or concession (including
moving expenses and any lease takeover
costs) and/or work allowance (or equivalent)
granted by Tenant to any such subtenant in
lieu of or in addition to Tenant's
performance of any such improvements made to
prepare the space in question for the
occupancy of the subtenant;
(3) advertising and marketing expenses directly
related to the subletting of the space;
(4) reasonable legal fees directly related to
the subletting of the space;
For the purposes of computing "Sublease Profit", Tenant's Costs with respect
thereto shall be deducted as and when they are paid by Tenant (or, as necessary,
deducted from future Sublease Profit, to the extent that current Tenant's Costs
exceed current Sublease Profit).
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ARTICLE 8
COMPLIANCE WITH LAWS
8.01. (a) Tenant shall give prompt notice to Landlord of any notice
it receives of the violation of any law or requirement of any public authority
with respect to the Premises or the use or occupation thereof. Tenant shall, at
Tenant's expense, comply with all present and future laws and requirements of
any public authorities in respect of the Premises or the use and occupation
thereof, or the abatement of any nuisance in, on or about the Premises;
provided, however, that Tenant shall not be obligated to make any repairs,
replacements, alterations, additions or improvements of a structural nature or
any repairs, replacements, alterations, additions or improvements to any
"BUILDING SYSTEMS", as such term is hereinafter defined, in order to comply with
laws and requirements of public authorities unless the need for same arises out
of any of the following causes:
(i) Tenant's manner of use of the Premises
(other than the mere use of the Premises as
executive and general offices with customary
ancillary uses),
(ii) the manner of operation of Tenant's
installations, equipment or other property
therein (other than the operation thereof in
a manner incidental to the mere use of the
Premises for executive and general offices
with customary ancillary uses),
(iii) any cause or condition created by or at the
instance of Tenant (other than the mere use
of the Premises as executive and general
offices with customary ancillary uses and
other than installations, equipment or other
property incidental to such use and commonly
installed in "COMPARABLE BUILDINGS", as such
term is defined in Section 13.04 hereof), or
(iv) the breach of any of Tenant's obligations
hereunder.
Landlord shall give Tenant not less than thirty (30) days notice prior to
Landlord's effecting any compliance with such laws and requirements for which
Tenant is responsible pursuant to the preceding sentence.
Notwithstanding the foregoing provisions of this Section 8.01(a), Tenant
shall not be required to comply with any law or requirement of any public
authority, and Landlord shall not effect any such compliance for which Tenant is
responsible, so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Premises, in accordance with Section 8.02 hereof.
34
(b) Except to the extent that either (i) Tenant is required by this
Lease to comply therewith, or (ii) such compliance is the responsibility of the
Condominium Board of Managers or the NYTC Board of Managers pursuant to the
Declaration or the By-Laws, Landlord shall comply with all present and future
laws and requirements of public authorities in respect of the Premises and any
other portions of the Unit. Notwithstanding the foregoing, Landlord may defer
compliance with any such law or requirement so long as Landlord shall be
contesting the validity or applicability thereof in good faith by appropriate
proceedings diligently prosecuted provided that (x) such deferral of compliance
does not adversely affect Tenant's use of the Premises or Tenant's right or
ability lawfully to use the Premises or to make alterations or improvements as
permitted by this Lease, (y) Tenant shall not be subject to criminal penalty or
to prosecution for a crime, or any other fine or charge, nor shall the Premises
or any part thereof be subject to being condemned or vacated, and (z) Landlord
shall keep Tenant advised as to the status of such proceedings. Without limiting
the application of the above, Tenant shall be deemed subject to prosecution for
a crime if Tenant or any officer, director, partner, shareholder or employee of
Tenant, as an individual, is charged with a crime of any kind or degree
whatever, whether by service of a summons or otherwise, unless such charge is
withdrawn before Tenant, or such officer, director, partner, shareholder or
employee of Tenant is required to plead or answer thereto.
(c) For purposes of this Section 8.01 and any other applicable
provision of this Lease, the term "BUILDING SYSTEMS" shall mean
(i) the elevators and escalators of the
Building;
(ii) the window washing and waste compacting and
removal equipment of the Building, if any;
(iii) the core toilets and utility closets of the
Building, and all fixtures and equipment
installed therein; and
(iv) the electrical, HVAC, mechanical, chilled
water, condenser water, plumbing, domestic
water, sanitary, sprinkler, fire control,
alarm and prevention, BMS, life safety and
security systems of the Building (together
with all related equipment), brought to and
including, but not beyond, the point on each
floor of the Building at which such systems
connect to horizontal distribution
facilities; provided, however that,
notwithstanding anything contained in clause
(iv) of the foregoing to the contrary, the
following shall be considered part of the
Building Systems: (x) the entire main
distribution loop of the sprinkler system on
each floor on which the Premises are located
and (y) the entire perimeter HVAC system on
each floor on which the Premises are
located.
35
8.02. Tenant, at its expense, after notice to Landlord, may contest, by
appropriate proceedings prosecuted diligently and in good faith, the validity,
or applicability to the Premises, of any law or requirement of any public
authority, PROVIDED that Landlord shall not be subject to criminal penalty or to
prosecution for a crime, or any other fine or charge, nor shall the Premises or
any part thereof or the Building or Land, or any part thereof, be subject to
being condemned or vacated, nor shall the Building or Land, or any part thereof,
be subjected to any lien (unless Tenant shall remove such lien by bonding or
otherwise) or encumbrance, by reason of non-compliance or otherwise by reason of
such contest. Tenant shall keep Landlord advised as to the status of such
proceedings. Without limiting the application of the above, Landlord shall be
deemed subject to prosecution for a crime if Landlord, or its managing agent, or
any officer, director, partner, shareholder or employee of Landlord or its
managing agent, as an individual, is charged with a crime of any kind or degree
whatever, whether by service of a summons or otherwise, unless such charge is
withdrawn before Landlord or its managing agent, or such officer, director,
partner, shareholder or employee of Landlord or its managing agent (as the case
may be) is required to plead or answer thereto.
ARTICLE 9
INSURANCE
9.01. Tenant shall not violate, or permit the violation of, any condition
imposed by any insurance policy then issued in respect of the Real Property
which is standard and customary for Comparable Buildings (as herein defined) and
shall not do, or permit anything to be done, or keep or permit anything to be
kept in the Premises which would increase any insurance rate in respect of the
Real Property over the rate which would otherwise then be in effect or which
would result in insurance companies of good standing refusing to insure the Real
Property in amounts required under the By-Laws, or which would result in the
cancellation of or the assertion of any defense by the insurer in whole or in
part to claims under any policy of insurance in respect of the Real Property.
9.02. If, by reason of any failure of Tenant to comply with the provisions
of this Lease (which failure Landlord shall notify Tenant of and, to the extent
reasonably possible, afford Tenant a reasonable period of time to cure), the
premiums on Landlord's insurance on the Real Property shall be higher than they
otherwise would be, Tenant shall reimburse Landlord, within thirty (30) days and
as Additional Charges, for that part of such premiums attributable to such
failure on the part of Tenant. A schedule or "make up" of rates for the Real
Property or the Premises, as the case may be, issued by the New York Fire
Insurance Rating Organization or other similar body making rates for insurance
for the Real Property or the Premises, as the case may be, shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
insurance rate then applicable to the Real Property or the Premises, as the case
may be.
9.03. Tenant, at its expense, shall maintain at all times during the term
of this Lease (a) fire insurance with "all risk" coverage, vandalism and
malicious mischief endorsements covering
36
all present and future Tenant's Property and all leasehold improvements
installed in the Premises (including Tenant's Work) to a limit of not less than
the full replacement value thereof, such insurance to include a replacement cost
endorsement, (b) commercial general liability insurance, including contractual
liability, in respect of the Premises and the conduct or operation of business
therein, with Landlord and its managing agent, if any, and the lessor under the
Unit Lease and each Superior Lessor or Superior Mortgagee whose name and address
shall previously have been furnished to Tenant, as additional insureds, with
limits of not less than Five Million ($5,000,000) Dollars combined single limit
for bodily injury and property damage liability in any one occurrence, (c) steam
boiler, air-conditioning (other than base Building HVAC equipment) or machinery
insurance, if Tenant installs a boiler or pressure object or similar equipment
in the Premises, with Landlord and its managing agent, if any, and the lessor
under the Unit Lease and each Superior Lessor or Superior Mortgagee whose name
and address shall previously have been furnished to Tenant, as additional
insureds, with limits of not less than Five Million ($5,000,000) Dollars and (d)
when Alterations are in progress, the insurance specified in Article 11. The
limits of such insurance shall not limit the liability of Tenant. Tenant shall
deliver to Landlord, prior to the Commencement Date, certificates of insurance,
in form reasonably satisfactory to Landlord issued by the insurance company or
its authorized agent. Such insurance may be carried in a blanket policy covering
the Premises and other locations of Tenant, if any, provided that each such
policy shall in all respects comply with this Article 9. Tenant shall procure
and pay for renewals of such insurance from time to time before the expiration
thereof, and Tenant shall deliver to Landlord such renewal policy or a
certificate thereof at least ten (10) days before the expiration of any existing
policy. All such policies shall be issued by companies rated in the A.M. Best
Key Rating Guide with ratings of at least A and of at least X and such company
shall be licensed to do business in New York State or authorized to write
insurance in New York State, whether or not so admitted. The proceeds of
policies providing "all risk" property insurance of Tenant's Property and
leasehold improvements installed in the Premises shall be payable to Tenant.
9.04. Each party agrees to have included in each of its insurance policies
insuring against loss, damage or destruction to the Unit or the Building or any
property owned or leased by such party in, on or around the Unit or the
Building, or the rents earned therefrom, or the conduct of business therein, a
waiver of the insurer's right of subrogation against the other party during the
term of this Lease or, if such waiver should be unobtainable or unenforceable,
(i) an express agreement that such policy shall not be invalidated if the
assured waives the right of recovery against any party responsible for a
casualty covered by the policy before the casualty or (ii) any other form of
permission for the release of the other party. If such waiver, agreement or
permission shall not be, or shall cease to be, obtainable from either party's
then current insurance company, the insured party shall so notify the other
party promptly after learning thereof, and shall use commercially reasonable
efforts to obtain the same from another insurance company described in Section
9.03 hereof.
Landlord hereby releases Tenant with respect to any claim (including a
claim for negligence) which Landlord might otherwise have against Tenant for
loss, damage or destruction to the Unit or the Building, or any property owned
by Landlord therein, or interruption of rents
37
earned therefrom, in either case to the extent to which Landlord is, or is
required to be insured, under a policy or policies containing a waiver of
subrogation or permission to release liability, as provided in this Section.
Tenant hereby releases Landlord with respect to any claim (including a
claim for negligence) which Tenant might otherwise have against Landlord for
loss, damage or destruction to Tenant's Property and leasehold improvements
installed in the Premises, or interruption of business at the Premises, in
either case to the extent to which Tenant is, or is required to be insured,
under a policy or policies containing a waiver of subrogation or permission to
release liability, as provided in this Section.
Nothing contained in this Section shall be deemed to relieve either party
of any duty imposed elsewhere in this Lease to repair, restore or rebuild or to
nullify any abatement of rents provided for elsewhere in this Lease.
9.05. Landlord, at its expense, shall maintain at all times during the
term of this Lease (i) a commercial general liability insurance policy with
limits of not less than Five Million ($5,000,000) Dollars combined single limit
for bodily injury and property damage liability in any one occurrence, and (ii)
"all-risk" property insurance covering any personal property owned by Landlord
in the Unit or the Building, in each case with such limits not less than that
required by either (x) the bona fide, third-party holder of the first mortgage
on the Building or (y) if no such mortgagee exists, third party mortgagees of
comparable first-class office buildings in the Borough of Manhattan.(12)
ARTICLE 10
CONDOMINIUM PROVISIONS
10.01 (a) Throughout the term of this Lease, this Lease (and the rights of
Tenant hereunder) shall remain subject and subordinate to the terms of the
Declaration and the By-laws and any Superior Lease, as each of the same shall be
amended or modified in accordance with their respective terms, provided,
however, that this Lease shall not be subject to any modification which shall
increase Tenant's obligations or liabilities or diminish Tenant's rights or
otherwise adversely affect Tenant under this Lease, except to a de minimis
extent.
(b) Notwithstanding any of the provisions of this Section 10.01 to
the contrary, if Landlord or a Landlord Affiliate obtains a non-disturbance,
recognition and attornment agreement (or similar agreement) from the Condominium
Board of Managers in favor of any other tenant (an "SNDA Tenant") in the FC
Office Units (a "Board SNDA"), Landlord shall
------------------
(12) If and for so long as Ground Lessor is (i) the Landlord under this
Lease and (ii) a governmental entiy or a public benefit corporation, the
provisions of Section 9.05 shall be deleted.
38
obtain a Board SNDA in favor of Tenant on the same terms, provisions, and
conditions as the Board SNDA provided to such SNDA Tenant (except to the extent
any such terms, provisions and conditions are not applicable to the provisions
of this Lease) within ten (10) days after the date the Condominium Board of
Managers executes and delivers such Board SNDA.(13)
ARTICLE 11
ALTERATIONS
--------------------
(13) The provisions of (b) will only apply if Premises is comprised of at
least one (1) full floor.
39
11.01. During the term of this Lease, Tenant shall have the right to make
improvements, changes or alterations (any such improvement, change or alteration
made by or on behalf of Tenant being an "ALTERATION") in and to the Premises
permitted to be made under the Declaration to the same extent, and subject to
compliance by Tenant with the same conditions, as would apply under Article X of
the Declaration if Tenant were the owner of the Unit. Notwithstanding the
provisions of this Section 11.01 to the contrary, not later than ten (10) days
prior to commencing any Alteration and thirty (30) days prior to commencing any
"Material Alteration" (as hereinafter defined), Tenant shall provide reasonably
detailed architectural plans and specifications to Landlord which clearly and
accurately describe the proposed Alteration or Material Alteration, as the case
may be. In addition, within thirty (30) days following the completion of any
Alteration or Material Alteration, Tenant shall deliver to Landlord CAD disks
containing a complete set of "as built" plans and specifications for the
Alteration or Material Alteration, provided Landlord is requiring the same from
other tenants in the Building. As an Additional Charge hereunder, Tenant shall,
within thirty (30) days after Landlord's delivery to Tenant of an invoice
therefor, reimburse Landlord for the reasonable third party out-of-pocket costs
and expenses (without markup or profit) incurred by Landlord in connection with
its review of any proposed plans and specifications for an Alteration or
Material Alteration. Except as provided in the foregoing sentence, Landlord
shall not impose any charge or fee in connection with any Alterations.
Notwithstanding any provisions of this Section 11.01 to the contrary, Tenant
shall be required to obtain Landlord's prior written consent, which consent,
except as herein provided, may be withheld in Landlord's sole discretion, to the
performance of any Material Alteration. If Landlord shall fail to respond to
Tenant's written request for approval of any Material Alteration, (herein called
a "Material Alterations Request"), within twenty (20) days (subject to extension
to 45 days as hereinafter provided) after such Material Alterations Request is
made by Tenant, with any disapproval including detailed comments thereon
explaining the reasons for such disapproval, then provided that such Material
Alterations Request shall state that Landlord's failure to disapprove of the
proposed request within twenty (20) days (subject to extension to 45 days as
hereinafter provided) shall be deemed an approval by Landlord, such Material
Alterations Request shall be deemed approved by Landlord. For purposes of this
Article 11, a "Material Alteration" is an Alteration which (a) is not limited to
the interior of the Premises or which affects the exterior appearance of the
Premises, the Unit or the Building, and Landlord agrees that it shall not
unreasonably withhold or condition its consent to such an Alteration, or (b)
affects, except to an immaterial extent, the structure of the Unit or the
Building, and Landlord agrees that it shall not unreasonably withhold or
condition its consent to such an Alteration if the proposed Alteration does not
adversely affect (except to an immaterial extent) such structure, or (c)
affects, except to an immaterial extent, the usage or the proper functioning of
the mechanical, electrical, sanitary, heating, ventilating, air-conditioning or
other services systems of the Unit or the Building and Landlord agrees that it
shall not unreasonably withhold or condition its consent to such an Alteration
if the proposed Alteration does not adversely affect (except to an immaterial
extent) such systems, or (d) will cost more than $250,000 in the aggregate
(which amount shall be increased annually in the same month in which the
Commencement Date [the "Index Month"] occurs, by the same percentage increase
which occurs in the Consumer Price Index from the Index Month of the preceding
year), and Landlord agrees that it shall not unreasonably withhold or condition
its consent to such an Alteration. Notwithstanding the provisions of clauses (b)
and
40
(c) of this Section 11.01, if, in the reasonable judgment of Landlord's
independent reputable engineer, a Material Alteration as described in such
clauses shall have an adverse affect (which shall be greater than to an
immaterial extent) on the structure of the Unit or the Building or the systems,
as applicable, but such adverse effect will be remediated by Tenant's proposed
remedial action, Landlord will not unreasonably withhold or delay or condition
its consent to any Material Alterations. If Tenant's plans for any Material
Alteration affects a structural component of the Building or Unit or a building
system and Landlord elects to have an independent engineer review the plans for
such Material Alteration, then the twenty (20) day period set forth in this
Section 11.01 shall be extended to forty five (45) days.
11.02. At any and all reasonable times during the progress of Alterations,
upon reasonable prior notice to Tenant, representatives of Landlord shall have
the right of access to the Premises and inspection thereof (provided, however,
that such representatives shall not interfere with the performance of such
Alterations and shall be subject to the security requirements of Tenant or
Tenant's contractor). Landlord shall incur no liability, obligation or
responsibility to Tenant or any third party by reason of the access and
inspection provided in this Section 11.02.
11.03. Throughout the performance of Alterations, Tenant, at its expense,
shall carry, or cause to be carried, worker's compensation insurance for all
persons employed in connection with such Alterations in statutory limits, all
risk "Builders Risk" insurance and general liability insurance, with completed
operation endorsement, for any occurrence in or about the Unit or the Building,
under which Landlord and its managing agent, if any, the Board of Mangers, the
FC Board of Managers and any Superior Lessor and Superior Mortgagee whose name
and address shall previously have been furnished to Tenant shall be named as
parties insured, in such limits as Landlord may reasonably require, provided
that such limits are obtainable from reputable insurers at commercially
reasonable rates and consistent with limits required with respect to comparable
Alterations performed by tenants in Comparable Buildings. Tenant shall furnish
Landlord and the Board of Managers with an original certificate of insurance or
other reasonably satisfactory evidence that such insurance is in effect at or
before the commencement of Alterations and, on request, at reasonable intervals
thereafter during the continuance of Alterations.
11.04. Tenant, at its expense, shall procure the satisfaction or discharge
of record of all mechanics and other liens, encumbrances and violations filed in
connection with any Alterations, within thirty (30) days after the filing
thereof (or bond or otherwise remove such lien or encumbrance if Tenant is
contesting same in accordance with the terms hereof) is received by Tenant.
Provided that Tenant provides such bonding during the pendency of any contest,
nothing herein contained shall prevent Tenant from contesting, in good faith and
at its own expense, any notice of violation, provided that Tenant shall comply
with the provisions of Section 8 hereof,
ARTICLE 12
LANDLORD'S AND TENANT'S PROPERTY
41
12.01. All fixtures, equipment, improvements, ventilation and
air-conditioning equipment and appurtenances attached to or built into the
Premises at the commencement of or during the term of this Lease (including
raised flooring), whether or not by or at the expense of Tenant, shall be and
remain a part of the Premises, shall, upon the expiration or sooner termination
of this Lease, be deemed the property of Landlord (without representation or
warranty by Tenant) and shall not be removed by Tenant, except as provided in
Section 12.02; except that Tenant may elect, at Tenant's option to remove any
such fixtures, equipment, improvements, ventilation and air-conditioning
equipment and appurtenances attached to or built into the Premises and installed
by Tenant at Tenant's expense after the date of this Lease, provided that same
can be removed without permanent damage to the Premises and provided, further,
that Tenant shall, in the event of any such removal, repair the portion of the
Premises affected by such removal and restore same to the condition which
existed prior to the installation of the removed item(s), reasonable wear and
tear excepted.
12.02. All furniture systems, movable partitions, special cabinet work,
business and trade fixtures, machinery and equipment, communications equipment
(including, without limitation, telephone system, security system and wiring)
and office equipment, whether or not attached to or built into the Premises,
which are installed in the Premises by or on behalf of Tenant and can be removed
without structural damage to the Building, and all furniture, furnishings and
other articles of movable personal property owned by Tenant and located in the
Premises (all of the foregoing referred to in this sentence being herein
collectively called "TENANT'S PROPERTY") shall be and shall remain the property
of Tenant and may be removed by Tenant at any time during the term of this
Lease; PROVIDED that if any of Tenant's Property is removed, Tenant shall repair
or pay the cost of repairing any damage to the Premises or to the Building
resulting from the installation and/or removal thereof.
12.03. At or before the Expiration Date of this Lease (or within thirty
(30) days after any earlier termination of this Lease) Tenant, at its expense,
shall remove from the Premises all of Tenant's Property and Tenant shall repair
any damage to the Premises or the Building resulting from any installation
and/or removal of Tenant's Property. Any items of Tenant's Property which shall
remain in the Premises after the Expiration Date of this Lease, or within thirty
(30) days following an earlier termination date, may at the option of Landlord,
be deemed to have been abandoned, and in such case such items may be retained by
Landlord as its property or disposed of by Landlord, without accountability, in
such manner as Landlord shall determine, at Tenant's expense. Notwithstanding
the foregoing, Tenant shall not be required to remove, or pay Landlord for the
cost of removing, any wiring, conduit or cabling.
ARTICLE 13
REPAIRS AND MAINTENANCE
13.01. Tenant shall, at its expense, throughout the term of this Lease,
take good care of and maintain in good order and condition the Premises and the
fixtures and improvements therein
42
including, without limitation, the property which is deemed Landlord's pursuant
to Section 12.01 hereof, except as otherwise expressly provided in this Lease.
Subject to the provisions of Section 9.04 hereof, and except as otherwise
provided for in this Lease, Tenant shall be responsible, at is sole cost and
expense, for all repairs, interior and exterior, structural and non-structural,
ordinary and extraordinary, foreseen or unforeseen, in and to the Premises and
the Building and the facilities and systems thereof, the need for which arises
out of
(a) the performance by or on behalf of Tenant of any Alterations,
(b) the installation, use or operation of any property installed
by or on behalf of Tenant which is deemed Landlord's pursuant
to Section 12.01 hereof and Tenant's Property,
(c) the moving of any property installed by or on behalf of Tenant
which is deemed Landlord's pursuant to Section 12.01 hereof
and Tenant's Property in or out of the Building, or
(d) the gross negligence or willful misconduct of Tenant or any of
its subtenants or its or their employees, agents, contractors
or invitees.
As used in this Article, the term "repairs" shall include replacements.
All repairs in or to the Premises for which Tenant is responsible shall be
promptly performed by Tenant in a manner which will not unreasonably interfere
with the use of the Building by other occupants, but Tenant shall not be
required to perform same on an overtime or premium pay basis, except if and to
the extent the use of such overtime or premium pay labor would be required under
the Declaration if the owner of the Unit were performing such repairs.
13.02. Tenant shall give Landlord notice of any defective condition in any
plumbing, heating, air-conditioning or ventilation system or electrical lines
located in, servicing or passing through the Premises of which it has actual
knowledge. Following such notice, Landlord shall comply with its obligations
under Section 13.04 hereof, but if Tenant is responsible for same under the
provisions of this Article 13, Tenant shall reimburse Landlord for its
commercially reasonable out-of-pocket costs without profit or markup incurred in
doing so.
13.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury arising from Landlord's making
any repairs which Landlord is required or permitted by this Lease, or required
by law, to make in or to the fixtures, equipment or appurtenances of the
Building or the Premises; provided, however, that Landlord shall make such
repairs at such times and in such manner as to minimize interference with the
conduct of Tenant's business in the
43
Premises, including, without limitation, the performance of such work on an
overtime or premium-pay basis to the extent required of a Unit Owner under the
Declaration.
Except in emergency circumstances, upon Tenant's request, Landlord
shall perform any maintenance or repairs which would interfere with Tenant's
conduct of business in or use of the Premises during hours other than Business
Hours of Business Days (as herein defined), and Tenant shall reimburse Landlord
for the incremental costs incurred by Landlord in connection with performing
such maintenance or repairs during such hours, unless the necessity for such
maintenance or repairs shall arise from (i) the gross negligence or willful
misconduct of Landlord or any of its agents, contractors or employees, or (ii)
the failure of Landlord to observe or perform any of the terms, covenants or
conditions of this Lease required to observed or performed by Landlord, in which
case such incremental costs shall be borne by Landlord. Any incremental costs
required to be paid by Tenant pursuant to the preceding sentence shall
constitute Additional Charges hereunder and shall be paid to Landlord within
thirty (30) days after demand.
13.04. (a) Landlord shall, at its expense, but subject to the provisions
of this Lease including, without limitation Section 13.01,
(i) keep and maintain in good order and condition to the
standard then prevailing for comparable premium first-class
midtown Manhattan office buildings ("COMPARABLE BUILDINGS")
the Unit and the Building Systems servicing same, and
(ii) make all repairs, interior and exterior, structural and
non-structural, ordinary and extraordinary, foreseen or
unforeseen, in and to the foregoing necessary or appropriate
in order to keep the same in such condition, as set forth in
clause (i) of this subsection 13.04(a),
except to the extent same is the responsibility of the Condominium Board of
Managers or the FC Board of Managers under the Declaration.
Landlord shall, at its expense, but subject to the provisions of this
Lease, clean the common or public areas and facilities of the Unit, if any, in
accordance with standards then prevailing for Comparable Buildings.
13.05 Tenant agrees to comply with the Building Standards set forth
on Exhibit I annexed hereto. [Exhibit I will be attached to the Lease when
agreed upon between Landlord and Tenant].
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ARTICLE 14
ELECTRICITY
14.01. Landlord agrees that prior to the Commencement Date risers,
feeders and wiring will be installed in the Building by Landlord to furnish
electrical service to the Premises in accordance with the provisions of EXHIBIT
G annexed hereto. After the Commencement Date any additional risers, feeders or
other equipment or service proper or necessary to supply Tenant's electrical
requirements, upon written request of Tenant, will be installed by Landlord at
the sole cost and expense of Tenant.
[*(4)14.02. (a) For the period commencing on the Commencement Date, Tenant
shall have the right to contract directly with and to pay directly to the utlity
company supplying electric current for the Premises the amounts due for such
electric current consumed as indicated by meters installed at Tenat's cost
measuring Tenant's consumption thereof. Landlord shall cooperate with Tenant at
no cost to Landlord, if Tenant elects to obtain electric energy directly from
the electric service provider.
(b) Tenant shall purchase from Landlord all electric current
that Tenant requires at the Premises and will pay Landlord for the same as
follows: As an Additional Charge hereunder, Tenant shall pay Landlord for the
electricity consumed by Tenant, as measured by the submeter(s) furnished
therefor on each floor of the Premises or elsewhere in the Building, which
submeter(s) shall be installed by Landlord at Landlord's expense on or prior to
the Commencement Date and shall measure electrical consumption in the Premises
separately from that of all other users of electricity. Landlord shall xxxx
Tenant separately for Tenant's consumption, at the same rate being charged to
Landlord (without profit or xxxx-up) by the utility company which provides
electricity to the FC Office Units, which rate shall include any tax, levy or
other such charge imposed upon Landlord or with respect to the purchase, sale or
resale of electricity ("Landlord Rate").
(c) Tenant shall pay for electricity on a monthly basis, or at
such less frequent intervals as Landlord may determine, within thirty (30) days
following Landlord's presentation to Tenant of an invoice therefor.
(d) Where more than one meter or submeter measures the
electricity supplied to the Premises, the electricity rendered through all such
meters or submeters shall be measured, consolidated and totalized as if all
service were rendered through a single meter.
-----------------
(14) Section 14.02(a) is only applicable if the Premises is being supplied
with electric on a direct basis (i.e., there is no submeter measuring Tenant's
electric consumption). Section 14.02(c) will be applicable if there is a
submeter measuring Tenant's electric consumption.
45
(e) If any rebate from the utility company furnishing
electricity to the FC Office Units with respect to the Premises is paid directly
to either party on account of installations of equipment, the party that paid
for such equipment shall receive such rebate within thirty (30) days thereafter.
No such rebate shall be taken into account (i.e., subtracted in calculating the
true cost of electricity) in determining Landlord's Rate.
14.03. Intentionally Deleted.
14.04. Tenant's use of electric current in the Premises shall not at
any time exceed the capacity of any of the electrical conductors and equipment
in or otherwise serving the Premises.
14.05. To the extent permitted by applicable law, Landlord shall not
be liable in any way to Tenant for any failure or defect in the supply or
character of electric energy furnished to the Premises by reason of any
requirement, act or omission of the public utility providing the Building with
electricity or for any other reason whatsoever, except for Landlord's gross
negligence or willful misconduct.
14.06. Landlord covenants and agrees that at all times during the
term of this Lease, Landlord shall make available to the base building
electrical closet on each floor in the Premises 6 xxxxx per xxxxx square foot of
electrical power demand load (exclusive of electric energy used in connection
with providing base building air conditioning service to the Premises and
domestic hot water to the common areas of the floor).
ARTICLE 15
LANDLORD'S SERVICES
15.01. (a) Landlord will provide, after the term of this Lease shall
have commenced the following services to the Premises in the manner hereinafter
more particularly set forth: (i) heat, ventilation and air conditioning; (ii)
elevator service; (iii) domestic hot and cold water; and (iv) cleaning (unless
Tenant shall at any time during the term of this Lease elect to provide its own
cleaning service with respect to the Premises, in which event Tenant shall be
entitled to a reduction in Fixed Rent (the "CLEANING COST REDUCTION") from and
after the effective date of such election by Tenant equal to (x) the number of
rentable square feet contained in the Premises, multiplied by (y) the cost which
would have been incurred by Landlord on a per rentable square foot basis to
provide cleaning services to the Premises in accordance with the provisions of
Exhibit J annexed hereto under the cleaning contract with an independent
cleaning contractor unaffiliated with Landlord covering the remaining office
portions of the Building to which Landlord (or a Landlord Affiliate) is
providing cleaning services, or if no such contract is in effect, the prevailing
cost to provide such cleaning services by independent cleaning contractors in
Comparable Buildings. Landlord shall also provide, at no cost to Tenant,
connections to the Building's life safety systems, but the actual cost (without
profit or markup) to physically make such connections shall be at Tenant's Cost.
Any dispute between the parties as to the amount of
46
the Cleaning Cost Reduction, if applicable, may be submitted by either party to
arbitration in accordance with the provisions of Article 35 hereof.
Notwithstanding the provisions of this Section 15.01(a) to the contrary, if
Tenant elects to provide its own cleaning service with respect to the Premises,
Tenant agrees that (i) Tenant shall not exercise such rights in a manner which
would create any work stoppage at the Building and (ii) notwithstanding the
provisions of Exhibit J, if Tenant elects to provide its own cleaning service as
provided in this Section 15.01(a), Tenant shall not perform any cleaning
outside the Premises and the Cleaning Cost Reduction shall not include any
amount attributable to cleaning outside of the Premises.
(b) As used herein, the terms "BUSINESS HOURS" and "BUSINESS
DAYS" shall have the meanings set forth in the Declaration.
15.02. (a) Landlord shall:
(i) supply heat to the Premises during Business Hours of
Business Days when needed for comfortable occupancy, and
(ii) supply air conditioning and ventilation to the
Premises during Business Hours on Business Days throughout the
year,
and such heating, air conditioning and ventilation shall be provided so as to
satisfy the conditions set forth on EXHIBIT H annexed hereto.
If Tenant shall require heat or air-conditioning services ("OVERTIME
HVAC SERVICE") at any time other than Business Hours on Business Days, Landlord
shall furnish such service for such times upon notice from Tenant, and Tenant
shall pay to Landlord within thirty (30) days after delivery of an invoice
therefor, any incremental costs incurred by Landlord or a Landlord Affiliate in
providing such Overtime HVAC Services, including without limitation, the charges
assessed to Landlord or a Landlord Affiliate by the Condominium Board of
Managers for providing such Overtime HVAC Service to the Premises without profit
or markup to Landlord. In the event such overtime HVAC Service is provided to
portions of the FC Office Units in addition to the Premises during any portion
of the period Tenant has requested such Overtime HVAC Service, an allocation of
such charges shall be made on a prorata basis between the Premises and such
other portions of the FC Office Units.
(b) If Landlord shall make steam available for Tenant's use
within the Premises for any additional heating or permitted kitchen use, the
cost of such steam as well as the cost of piping and other equipment or
facilities required to supply steam to and distribute steam within the Premises
shall be paid by Tenant. Landlord may install and maintain at Tenant's expense,
meters to measure Tenant's consumption of steam and Tenant shall reimburse
Landlord, within thirty (30) days after Tenant's receipt of an invoice therefor,
for the quantities of steam shown on such meters at Landlord's actual cost of
such steam which is charged to Landlord by the utility providing the same
without profit or markup to Landlord.
47
(c) (i) Landlord shall provide passenger elevator service to each
floor of the Premises at all times during Business Hours of Business Days and
Landlord agrees that at least one passenger elevator in each elevator bank
serving the Premises shall be subject to call at all other times.
(ii) Landlord shall provide freight elevator (and, as needed,
loading dock) service to the Premises on a first come-first served basis (I.E.,
no advance scheduling) during Business Hours of Business Days. Freight elevator
(and, as needed, loading dock) service shall also be provided to the Premises at
Tenant's request on a reserved dedicated basis at all other times (i.e.,
twenty-four (24) hours per day, seven (7) days per week) ("OVERTIME FREIGHT
ELEVATOR/LOADING DOCK SERVICE"). In respect of any such Overtime Freight
Elevator/Loading Service furnished to Tenant at its request, Tenant shall pay to
Landlord, as Additional Charges hereunder, any incremental costs incurred by
Landlord or Landlord Affiliates in providing such Overtime Freight
Elevator/Loading Dock Service, including without limitation the charges assessed
to Landlord or Landlord Affiliates under the Declaration by reason of the
provision of such Overtime Freight Elevator/Loading Dock Service to the Premises
(e.g., charges for overtime personnel, if applicable) without profit or xxxx-up,
but such Overtime Freight Elevator Service/Loading Dock Service shall be
otherwise without charge to Tenant.
(e) Landlord shall furnish reasonable quantities of hot and cold
water to the floor(s) on which the Premises are located for core lavatory,
cleaning, drinking and sprinkler purposes only. If Tenant shall require water
for any other purpose, Landlord need only furnish cold water at the Building
core riser through a capped outlet located on the floor of the Premises, and the
cost of heating such water shall be paid by Tenant as provided in the last
sentence of this Section 15.02(e). Landlord may install and maintain, at
Tenant's expense, meters to measure Tenant's consumption of such cold water
and/or hot water for such other purposes. Tenant shall pay to Landlord, within
thirty (30) days after its receipt of an invoice therefor, (i) Landlord's
charges for the quantities of cold water shown on such meters, which charges
shall not exceed the actual costs (without profit or markup) charged to Landlord
by the utility supplying cold water to the Building, and (ii) Landlord's charges
for the quantities of hot water shown on such meters, which charges shall not
exceed the actual costs charged to Landlord by the utility supplying cold water
to the Building, plus the actual cost to Landlord of heating such water.
(f) (i) Except as otherwise provided below, or unless Tenant shall
elect to provide its own cleaning services as provided in Section 15.01(a)
hereof, Landlord shall cause, the interior of the Premises, to be cleaned in
accordance with the provisions of EXHIBIT J attached hereto and made a part
hereof. For so long as Landlord is providing such cleaning services, Tenant
shall pay to Landlord, within thirty (30) days after its receipt of an invoice
therefor, the costs incurred by Landlord for (x) extra cleaning work in the
Premises required because of (i) misuse on the part of Tenant or its subtenants,
Users or its or their employees or visitors, and (ii) materials and finishes
installed by Tenant or at its request which are unusually difficult or
time-consuming to clean, (if cleaning thereof is requested by Tenant), and (y)
removal from the Premises and the Building of any refuse and rubbish of Tenant
in excess of that ordinarily
48
accumulated in business office occupancy, including, without limitation, kitchen
refuse, or at times other than Landlord's standard cleaning times.
(ii) Tenant shall not clean, nor require, permit, suffer or
allow any windows in the Premises to be cleaned, from the outside in violation
of Section 202 of the Labor Law, or any other applicable law.
15.03. Tenant shall have the right to access and use, without additional
charge therefor, at least such share of all Building utility and
telecommunication shaft ways, risers, conduits and utility closets serving the
office portions of the Building as shall equal the share (the "Tenant Shaft
Share") being used by the occupant of the Premises immediately prior to Tenant.
Tenant shall have the right, at Tenant's cost and expense, to remove from the
Tenant Shaft Share areas, all wiring, cabling and other telecommunications
equipment present on the Commencement Date.
15.04. Subject to the provisions of Section 34.04(b) and Article 19 and 20
hereof, Landlord reserves the right, without liability to Tenant and without it
being deemed a constructive eviction, to stop or interrupt any heating,
elevator, escalator, lighting, ventilating, air-conditioning, steam, power,
electricity, water, cleaning or other service and to stop or interrupt the use
of any Building facilities and systems at such times, in either case, as may be
necessary and for as long as may reasonably be required by reason of accidents,
strikes, or the making of repairs, alterations or improvements, or inability to
secure a proper supply of fuel, gas, steam, water, electricity, labor or
supplies, or by reason of any other similar or dissimilar cause beyond the
reasonable control of Landlord. Subject to the provisions of Section 34.04(b)
and Article 19 and 20 hereof, no such stoppage or interruption shall result in
any liability from Landlord to Tenant or entitle Tenant to any diminution or
abatement of rent or other compensation nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of any such stoppage or
interruption. Except in emergency circumstances, Landlord shall give Tenant at
least ten (10) Business Days prior written notice ("LANDLORD'S STOPPAGE NOTICE")
of its intention to make any repairs, alterations or improvements referred to in
this Section 15.04 or any other stoppages or interruptions or reductions of
services of which Landlord has prior knowledge or notice. Such Landlord Stoppage
Notice shall state the date, time and estimated duration of such stoppage,
interruption or reduction. Landlord shall use reasonable efforts in making such
repairs, alterations or improvements and in dealing with such other stoppages of
service so as to minimize interference with Tenant's business operations,
including the performance of such work on an overtime or premium-pay basis to
the extent required of a Unit Owner under the Declaration.
15.05. Tenant may, at Tenant's sole cost and expense, install, maintain
and operate in a portion of the Premises a food preparation, service and/or
dining facility (the "FOOD SERVICE FACILITY") for use by the officers, employees
and guests of Tenant or any permitted occupant of the Premises, including
appropriate food and beverage preparation, handling, cooking, serving and/or
dining and/or other associated facilities, provided that Tenant shall (a) comply
with all applicable laws, ordinances and regulations with respect to such Food
Service Facility and its operations, (b) cause all food preparation areas to be
properly ventilated so that no odor shall emanate from the Premises to any other
portion of the Building, (c) maintain such Food Service
49
Facility in a clean and sanitary condition and free of refuse at all times, and
(d) bag all wet garbage and place the same in containers within the Premises
that prevent the escape of odor and remove all such wet garbage from the
Building at Tenant's sole cost and expense. All of the provisions of this Lease
shall be applicable to the installation, maintenance and operation of the Food
Service Facility.
15.06. Tenant acknowledges that it is currently a member of The New York
Times Building Company and is a member of the Condominium Board of Managers. For
so long as Tenant (or a Tenant Affiliate) is a member of the Condominium Board
of Managers, Tenant will not willfully and intentionally exercise its voting
rights to prevent or materially hinder Landlord from providing the services that
Landlord is obligated to provide to Tenant or the Premises under this Lease. The
provisions of this Section 15.06 shall have no application whatsoever in the
event of failure by Landlord to fund any monetary obligations owed by Landlord
to the Board of Managers after a final adjudication that such monetary
obligations are owed to the Condominium Board of Managers.(15)
ARTICLE 16
ACCESS
16.01. Landlord and persons authorized by Landlord shall have the right,
upon reasonable advance notice, except in cases of emergency, to enter and/or
pass through the Premises at reasonable times provided Landlord shall use
reasonable efforts to minimize any interference with Tenant's business
operations and use of the Premises and shall be accompanied by a designated
representative of Tenant,
(a) to examine the Premises and to show them to actual and
prospective lessors under the Unit Lease, Superior
Mortgagees or Superior Lessors, or prospective
purchasers, mortgagees or lessees of the Unit,
(b) to make such repairs, alterations, additions and
improvements in or to the Premises as Landlord is
required to make under this Lease or by applicable Legal
Requirements (unless Tenant specifically waives in
writing Landlord's obligation to make any such repairs,
alterations, additions and improvements required under
this Lease or by applicable Legal Requirements), and
----------
(15) If and for so long as the "Landlord" under this Lease is (A)(i)
Ground Lessor and (ii) a governmental entity or a public benefit corporation, or
(B) the party who acquires the interest of the "Landlord" under this Lease from
such governmental entity or public benefit corporation (but not any other party
who becomes the "Landlord" under this Lease), the provisions of this sentence
shall not be applicable
50
(c) to read any utility meters located therein.
Landlord and such authorized persons shall be allowed to take reasonable amounts
of materials into and upon the Premises that may be required in connection
therewith, without any liability to Tenant and without any reduction of Tenant's
covenants and obligations hereunder provided, however, the amount and placement
of such materials shall not interfere with the conduct of Tenant's business
except to a DE MINIMIS extent. Except as provided in Section 13.03 with respect
to clause (b) of this Section 16.01, Landlord shall perform any work or activity
pursuant to this Section 16.01 which would interfere with Tenant's conduct of
business in or use of the Premises, other than to a DE MINIMIS extent, during
hours other than Business Hours of Business Days at Landlord's sole cost and
expense.
16.02. If at any time any windows of the Premises are either temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building (or permanently darkened or obstructed
if required by law), the same shall be without liability to Landlord and without
any reduction or diminution of Tenant's obligations under this Lease.
16.03. If Tenant shall not be personally present to open and permit an
entry into the Premises at any time when for any reason an entry therein shall
be urgently necessary by reason of fire or other emergency, Landlord or
Landlord's agents may forcibly enter the same without rendering Landlord or such
agents liable therefor (if during such entry Landlord or Landlord's agents shall
accord reasonable care to the Premises and Tenant's Property therein) and
without in any manner affecting the obligations and covenants of this Lease.
16.04. Any damage to the Premises resulting from the exercise by Landlord
of its rights granted under this Article 16 shall be promptly repaired by
Landlord at Landlord's expense (except as provided in the following sentence).
Tenant shall have the right, at Landlord's expense, to repair any damage to any
Tenant's Property located in the Premises or to any property or parts of the
Premises which are deemed Landlord's property pursuant to Section 12.01 hereof
resulting from the exercise by Landlord of its rights granted under this Article
16 (and Landlord shall reimburse Tenant for the actual out-of-pocket expenses
reasonably incurred by Tenant in performing any such repair within thirty (30)
days after delivery of an invoice therefor, together with documentation of such
expenses reasonably satisfactory to Landlord), failing which Tenant may offset
such amounts, together with interest thereon at the Interest Rate from the date
incurred by Tenant until reimbursed to or offset by Tenant, against the next
installment of Fixed Rent and/or Additional Charges payable under this Lease.
16.05. Landlord acknowledges that Tenant may, from time to time, have
certain security or confidentiality requirements such that portions of the
Premises shall be locked and inaccessible to persons unauthorized by Tenant (the
"SECURED AREAS"). Notwithstanding anything to the contrary contained in this
Article 16, Landlord therefore agrees that, except in cases of emergency,
Landlord's right of access to the Secured Areas shall be restricted subject to
the following conditions: (i) Tenant shall deliver to Landlord floor plans of
the Premises designating
51
the Secured Areas,(ii) except in cases of emergency, any access to the Secured
Areas requested by Landlord shall be upon no less than twenty-four (24) hours
notice to Tenant, which notice may be oral, and accompanied by a representative
of Tenant, whom Tenant agrees to make available, and (iii) Landlord shall have
no obligation to provide to the Secured Areas cleaning services or any other
services or repairs that require access to the Secured Areas unless Tenant shall
provide Landlord with such access to the Secured Areas for purposes of providing
such cleaning services or other services or repairs at those times that Landlord
shall reasonably designate in accordance with Landlord's ordinary Building
schedule.
ARTICLE 17
NOTICE OF OCCURRENCES
17.01. Tenant shall give notice to Landlord, the Board of Managers and the
FC Board of Managers of (a) any occurrence in or about the Premises for which
Landlord might be liable, (b) any fire or other casualty in the Premises, (c)
any damage to or defect in the Premises, including the fixtures, equipment and
appurtenances thereof, for the repair of which Landlord might be responsible,
and (d) any damage to or defect in any part or appurtenance of the Building's
sanitary, electrical, heating, ventilating, air-conditioning, elevator or other
systems located in or passing through the Premises or any part thereof, if and
to the extent that Tenant shall have knowledge of any of the foregoing matters.
ARTICLE 18
INDEMNIFICATION
18.01. Subject to the terms of Article 9 hereof relating to waivers of
subrogation, Tenant shall indemnify and defend Landlord (including Landlord's
shareholders, officers, directors, partners, joint venturers and agents) and
save it harmless from and against any and all liability, damages, costs or
expenses, including reasonable attorneys' fees, arising from the negligence of
Tenant or its officers, contractors, licensees, agents, employees, or visitors
in or about the Premises. This provision shall not be construed to make Tenant
responsible for loss, damage, liability or expense resulting from injuries to
third parties if (but only to the extent) caused by the gross negligence or
willful misconduct of Landlord, or its officers, contractors, directors,
shareholders, partners, joint venturers, licensees, agents, employees, or
invitees.
18.02. Subject to the terms, conditions, restrictions and limitations
elsewhere contained in this Lease, Landlord shall indemnify Tenant and save
Tenant harmless from and against any and all liability, actual damages (not
consequential damages), costs or expenses, including reasonable attorneys' fees,
to third parties arising from the negligence of Landlord or its officers,
contractors, agents or employees in or about the FC Office Units (other than the
Premises). This provision shall not be construed to make Landlord responsible
for loss, damage, liability or expense resulting from injuries to third parties
caused by the gross negligence or willful misconduct of Tenant or its officers,
contractors, licensees, agents, employees or invitees.
52
18.03. If any action or proceeding is brought against a person entitled to
indemnification hereunder, the indemnifying party shall have the right to
participate in the defense of same with counsel of its choice, who shall be
reasonably satisfactory to the party benefitting from the indemnity, and
insurance company counsel shall be deemed satisfactory.
18.04. Notwithstanding the foregoing provisions of this Article 18 or any
other provision of this Lease (except as provided in Section 21.03(b) hereof),
(i) Landlord shall not be liable to Tenant for consequential damages, and (ii)
Tenant shall not be liable to Landlord for consequential damages, in either case
even if arising from any act, omission or negligence of such party or from the
breach by such party of its obligations under this Lease.
18.05 Notwithstanding anything to the contrary provided in this Lease, in
the event of any liability of Landlord to Tenant arising by reason of this
Lease, Tenant agrees that it shall have recourse only to the estate of Landlord
and Landlord Affiliates in the FC Office Units and the proceeds of any sale of
the FC Office Units or any part thereof, and no other property or assets of
Landlord or Landlord Affiliates, and their respective agents, officers,
directors, shareholders, partners, members or principals, disclosed or
undisclosed, shall be subject to levy, recourse, execution or other enforcement
procedure for the satisfaction of Tenant's remedies under or with respect to
this Lease, the relationship of Landlord and Tenant hereunder or under law or
Tenant's use or occupancy of the Premises or any other liability of Landlord to
Tenant.
ARTICLE 19
DAMAGE OR DESTRUCTION
19.01. If the Building or the Premises shall be partially or totally
damaged or destroyed by fire or other casualty (and if this Lease shall not be
terminated as in this Article 19 hereinafter provided), then in the event that
the Condominium Board of Managers elects to repair the damage to and restore and
rebuild the Building diligently and in a workmanlike manner after notice to it
of the damage or destruction, Tenant shall (x) at Tenant's option, restore all
or such portion of Tenant's Property as Tenant may elect to restore and (y) at
Tenant's option, to be exercised separately with respect to each floor of the
Premises, either
(i) repair the damage to and restore such portion of the
leasehold improvements in the Premises as Tenant elects
in its sole discretion (the "IMPROVEMENTS RESTORATION
WORK"); or
(ii) demolish the leasehold improvements located in the
Premises (the "IMPROVEMENTS DEMOLITION WORK"),
which Improvements Restoration Work or Improvements Demolition Work (as the case
may be) shall be performed diligently and in a workmanlike manner after the
substantial completion repairs and restoration of the Building.
53
The Improvements Restoration Work and the Improvements Demolition Work shall be
deemed to constitute Alterations for the purposes of Article 11 hereof and shall
be subject to the provisions of Article 11.
The proceeds of policies providing coverage for leasehold
improvements installed in the Premises shall be paid to Tenant, to be used by
Tenant to perform the Improvements Restoration Work and/or the Improvements
Demolition Work (as the case may be), to the extent Tenant is required to
perform the same, and otherwise to be retained by Tenant.
Tenant shall be solely responsible for (i) the amount of any
deductible under the policy insuring the leasehold improvements and (ii) the
amount, if any, by which the cost of the Improvements Restoration Work and/or
the Improvements Demolition Work (as the case may be) exceeds the available
insurance proceeds therefor.
Notwithstanding any of the provisions of this Section 19.01 to
the contrary, if Landlord or any Landlord Affiliate executes any lease for space
in the Building that contains a provision that Landlord or such Landlord
Affiliate will be obligated under the circumstances provided in such provision
to restore any damaged or destroyed space or cause the Condominium Board of
Managers to perform such restoration, then Landlord shall give Tenant prompt
notice thereof (or will respond to a request from Tenant to do so within 30 days
of such request), and, at Tenant's election, Landlord and Tenant will promptly
cause this Lease to be amended to incorporate such provision into this
Lease.(16)
19.02. If on account of fire or other casualty, all or a part of the
Premises shall be rendered untenantable (whether as a result of damage or
destruction to the Premises or damage or destruction to other parts of the
Building) the Fixed Rent and the Additional Charges under Article 3 hereof shall
be abated in the proportion that the untenantable area of the Premises bears to
the total area of the Premises (and if more than seventy-five (75%) percent of a
floor shall be rendered untenantable, then the entire floor shall be deemed to
have been rendered untenantable) for the period from the date of the damage or
destruction to the date on which:
(i) the repair and restoration of the Building (including
all base building systems serving the Premises) shall
have been substantially completed (the "BASIC
RESTORATION"); and
(ii) the damaged leasehold improvements could be restored,
with due diligence and dispatch (commencing after
Landlord's substantial completion of the restoration of
the Building including all base building systems serving
the
------------
(16) This provision will only be applicable if the Premises (aggregated
with all prior space leased by Tenant and Tenant Affiliates in the FC Office
Units) is comprised of at least one (1) full floor.
54
Premises) with materials of like kind and quality to the
same condition as existed prior to such damage;
provided, however, should Tenant reoccupy a portion of the Premises for the
conduct of business during the period the repair work is taking place and prior
to the date that the Premises are substantially repaired or made tenantable, the
Fixed Rent and the Additional Charges allocable to such reoccupied portion,
based upon the proportion which the area of the reoccupied portion of the
Premises bears to the total area of the Premises, shall be payable by Tenant
from the date of such occupancy.
19.03. If the Building shall be totally damaged or destroyed by fire or
other casualty, or the Building shall be so damaged or destroyed by fire or
other casualty that the Condominium Board of Managers shall have elected not to
repair and restore the Building, then Landlord may terminate this Lease by
giving Tenant notice to such effect ("LANDLORD'S CASUALTY TERMINATION NOTICE")
as soon as practicable under the circumstances. If the Condominium Board of
Managers shall elect not to repair and restore the Building, and if Landlord
shall not dispute such election, then, at Tenant's option, Landlord shall assign
to Tenant, such rights of Landlord as may be reasonably required by Tenant in
order to bring an action or proceeding against the Condominium Board of Managers
for its failure to effect such repairs and restoration.
19.04. (a) If any portions of the Building required for reasonable access
to the Premises or the provision of any services to the Premises required under
this Lease ("BASE BUILDING ELEMENTS") are damaged or destroyed by fire or other
casualty and Landlord and/or the Board of Managers is required to or elects to
repair and restore the Base Building Elements, Landlord shall, within 60 days
after such damage or destruction, provide Tenant with a written notice of the
estimated date on which the restoration shall be substantially completed ("BASE
BUILDING RESTORATION ESTIMATE"). If such estimated date is more than twelve (12)
months after the date of such damage or destruction, Tenant may terminate this
Lease by notice to Landlord, which notice shall be given within sixty (60) days
after the date Landlord provides the Base Building Restoration Estimate, and
such termination shall be effective upon the giving of Tenant's notice. If
Tenant elects not to terminate this Lease, and if Landlord and/or the Board of
Managers, as applicable, has not substantially completed the required repairs
and restored the Base Building Elements within the period originally estimated
by Landlord or within such period thereafter (not to exceed 3 months) as shall
equal the aggregate period Landlord may have been delayed in doing so by Force
Majeure Causes, then Tenant shall have the further right to elect to terminate
this Lease upon written notice to Landlord and such election shall be effective
upon the date of such notice. Tenant shall have the right to submit any dispute
as to the determination of the Base Building Restoration Estimate pursuant to
this Section 19.04(a) to Expedited Arbitration.
(b) If the Premises or any part thereof shall be damaged by fire or
other casualty as set forth in Article 9, whether or not any other portions of
the Building or Base Building Elements have also been damaged, and the Base
Building Restoration Estimate provides that the estimated time period to
complete the repairs and restoration to the Premises, which time period shall be
aggregated with the time period required to complete the repairs and restoration
of
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any Base Building Elements if same have also been damaged, is more than twelve
(12) months after the date of such damage or destruction, Tenant may terminate
this Lease by notice to Landlord, which notice shall be given within sixty (60)
days after the date Landlord provides the Base Building Restoration Estimate,
and such termination shall be effective upon the giving of Tenant's notice.
Tenant shall have the right to submit any dispute as to the determination of the
Base Building Restoration Estimate pursuant to this Section 19.04(b) to
Expedited Arbitration.
19.05. Landlord and Tenant shall fully cooperate with each other in
connection with the collection of any insurance proceeds payable in respect of
any casualty to the Building and shall comply with all reasonable requests made
by each other in connection therewith, including, without limitation, the
execution of any affidavits required by the applicable insurance companies.
19.06. Except to the extent expressly set forth in this Article 19, Tenant
shall not be entitled to terminate this Lease and Landlord shall have no
liability to Tenant for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the Premises or of the Building
pursuant to this Article 19.
19.07. Landlord will not carry insurance of any kind on Tenant's Property
or on Tenant's leasehold improvements and shall not be obligated to repair any
damage to or replace any of the foregoing and Tenant agrees to look solely to
its insurance for recovery of any damage to or loss of any of the foregoing.
19.08. The provisions of this Article 19 shall be deemed an express
agreement governing any case of damage or destruction of the Premises by fire or
other casualty, and Section 227 of the Real Property Law of the State of New
York, providing for such a contingency in the absence of an express agreement,
and any other law of like import, now or hereafter in force, shall have no
application in such case.
ARTICLE 20
EMINENT DOMAIN
20.01. If the whole of the Building or the Premises shall be taken by
condemnation or in any other manner for any public or quasi-public use or
purpose, this Lease and the term and estate hereby granted shall terminate as of
the date of vesting of title on such taking ("DATE OF THE TAKING"), and the
Fixed Rent and Additional Charges shall be prorated and adjusted as of such
date.
20.02. If a portion of the Building or the Premises shall be so taken and
the Condominium Board of Managers shall elect in accordance with the Declaration
not to rebuild the or restore the balance of the Building, then this Lease and
the term and estate hereby granted shall terminate as of the date such election
is made, and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of such date.
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If forty (40%) percent or more of the Premises or any Base Building
Elements shall be so taken and the Premises or the remaining area of the
Premises, as the case may be, shall no longer be sufficient or suitable, in
Tenant's reasonable judgment, for Tenant to continue the operation of its
business, Tenant may, at its option, terminate this Lease by giving Landlord
notice to that effect within 90 days after the Date of the Taking.
In case of any termination pursuant to this Section 20.02, this
Lease shall terminate on the date that such notice from Landlord or Tenant to
the other shall be given, and the Fixed Rent and Additional Charges shall be
prorated and adjusted as of such termination date, except that with respect to
any portion of the Premises taken the Fixed Rent and Additional Charges shall be
prorated and adjusted as of the Date of the Taking if earlier.
Upon any partial taking of the Premises and this Lease continuing in
force as to any part of the Premises, the Fixed Rent and Additional Charges
shall be adjusted according to the rentable area remaining.
20.03. The award or payment in connection with any taking shall be payable
to Landlord; provided, however, that Tenant shall have the right to make a
separate claim for its moving expenses and for any of Tenant's Property and
Alterations taken.
20.04. If the temporary use or occupancy of all or any part of the
Premises shall be taken by condemnation or in any other manner for any public or
quasi-public use or purpose during the term of this Lease, Tenant shall be
entitled, except as hereinafter set forth, to receive that portion of the award
or payment for such taking which represents compensation for the use and
occupancy of the Premises, for the taking of Tenant's Property and for moving
expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Premises. This Lease
shall be and remain unaffected by such taking and Tenant shall continue to be
responsible for all of its obligations hereunder insofar as such obligations are
not affected by such taking and shall continue to pay in full the Fixed Rent and
Additional Charges when due. If the period of temporary use or occupancy shall
extend beyond the Expiration Date of this Lease, that part of the award which
represents compensation for the use and occupancy of the Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive so much thereof as represents the period up to and including such
Expiration Date and Landlord shall receive so much thereof as represents the
period after such Expiration Date. All monies paid as, or as part of, an award
for temporary use and occupancy for a period beyond the date to which the Fixed
Rent and Additional Charges have been paid shall be received, held and applied
by Landlord as a trust fund for payment of the Fixed Rent and Additional Charges
becoming due hereunder.
20.05. In the event of a taking of less than the whole of the Building
and/or the Land which does not result in termination of this Lease, or in the
event of a taking for a temporary use or occupancy of all or any part of the
Premises which does not result in a termination of this Lease, after the
Condominium Board of Managers shall proceed to repair the remaining parts of
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the Building and the Premises (other than those parts of the Premises which are
deemed Landlord's property pursuant to Section 12.01 hereof and Tenant's
Property) to substantially their former condition to the extent that the same
may be feasible (subject to reasonable changes which Landlord and the
Condominium Board of Managers shall deem desirable) and so as to constitute a
complete and rentable Building and Premises, then Tenant, at its expense, and
whether or not any award or awards shall be sufficient for the purpose, shall
proceed with reasonable diligence to repair the remaining parts of the Premises
which are deemed Landlord's property pursuant to Section 12.01 hereof and
Tenant's Property, to substantially their former condition to the extent that
the same may be feasible, subject to reasonable changes which shall be deemed
Alterations. Notwithstanding anything to the contrary set forth in this Article
20, the portion of any award which is allocable to the repairs which Tenant is
obligated to perform pursuant to the preceding sentence shall be paid to Tenant.
ARTICLE 21
SURRENDER
21.01. On the Expiration Date or upon any earlier termination of this
Lease, or upon any reentry by Landlord upon the Premises, Tenant shall quit and
surrender the Premises to Landlord "broom-clean" and in good order, condition
and repair, except for ordinary wear and tear and damage or destruction by fire
or other casualty or condemnation (subject to Tenant's obligations provided in
Article 19 or 20, as the case may be) and Tenant shall remove all of the
Tenant's Property therefrom except as otherwise expressly provided in this
Lease.
21.02. No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing and signed by Landlord.
21.03. (a) In the event this Lease is terminated in accordance with its
terms or this Lease is not renewed or extended or a new Lease is not entered
into between the parties, and if Tenant shall then hold over after the
expiration or sooner termination of the term of this Lease, the parties hereby
agree that Tenant's occupancy of the Premises after the expiration or sooner
termination of the term of this Lease shall be under a month-to-month tenancy
commencing on the first day after the expiration or sooner termination of the
term of this Lease, which tenancy shall be upon all of the terms set forth in
this Lease except Tenant shall pay on the first day of each month of the
holdover period as Fixed Rent, an amount equal to the product obtained by
multiplying (x) one-twelfth of the sum of the Fixed Rent payable by Tenant
during the last year of the term of this Lease (i.e., the year immediately prior
to the holdover period) by (y) (i) hundred ten (110%) percent for the first
month of such month-to-month tenancy, (ii) one hundred twenty-five (125%)
percent for the next month of such month-to-month tenancy, (iii) one hundred
fifty (150%) percent for the next month of such month-to-month tenancy, and (iv)
two hundred (200%) percent thereafter.
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(b) Landlord shall not be required to perform any work during
the holdover period, provided, however, that Landlord shall continue to be
obligated to make all required repairs within the Premises that are Landlord's
obligation under this Lease. If Tenant shall holdover beyond the expiration or
sooner termination of this Lease and thereafter for more than one hundred fifty
(150) days, then the provisions of clause (ii) of Section 18.04 hereof shall not
be applicable to any claims by Landlord against Tenant for consequential damages
in the event that Tenant holds over for more than one hundred fifty (150) days
and Tenant agrees that it shall be liable to Landlord for Landlord's
consequential damages in the event that Tenant holds over for more than one
hundred fifty (150) days.
ARTICLE 22
CONDITIONS OF LIMITATION
22.01. This Lease and the term and estate hereby granted are subject
to the limitation that whenever Tenant, or any guarantor of Tenant's obligations
under this Lease, shall make an assignment for the benefit of creditors, or
shall file a voluntary petition under any bankruptcy or insolvency law, or an
involuntary petition alleging an act of bankruptcy or insolvency shall be filed
against Tenant or such guarantor under any bankruptcy or insolvency law, or
whenever a petition shall be filed by or against Tenant or such guarantor under
the reorganization provisions of the United States Bankruptcy Code or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant, or such guarantor, under the arrangement provisions of the United States
Bankruptcy Code or under the provisions of any law of like import, or whenever a
permanent receiver of Tenant, or such guarantor, or of or for the property of
Tenant, or such guarantor, shall be appointed, then Landlord (a) if such event
occurs without the acquiescence of Tenant, or such guarantor, as the case may
be, at any time after the event continues for ninety (90) days, or (b) in any
other case at any time after the occurrence of any such event, may give Tenant a
notice of intention to end the term of this Lease at the expiration of five days
from the date of service of such notice of intention, and upon the expiration of
said five-day period this Lease and the term and estate hereby granted, whether
or not the term shall theretofore have commenced, shall terminate with the same
effect as if that day were the expiration date of this Lease, but Tenant shall
remain liable for damages as provided in Article 24 hereof.
22.02. This Lease and the term and estate hereby granted are subject
to the further limitations that in the event that any of the following (each, an
"Event of Default") shall occur::
(a) if Tenant shall default in the payment of any Fixed Rent
or Additional Charges, and such default shall continue for ten
(10) days after written notice thereof has been received by
Tenant, or
(b) if Tenant shall, whether by action or inaction, be in
default of any of its obligations under this Lease (other than
a default in the payment of Fixed Rent or Additional Charges)
and such default shall continue and not be remedied within
twenty-five (25) days after Landlord shall have given to
Tenant a notice specifying
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the same, or, in the case of a default which cannot with
due diligence be cured within a period of twenty-five
(25) days (a "LONG-TERM CURE DEFAULT"), if Tenant shall
not (x) within said twenty-five (25) day period advise
Landlord of Tenant's intention to take all steps
reasonably necessary to remedy such Long-Term Cure
Default, (y) duly commence within said 20-day period,
and thereafter diligently prosecute to completion all
steps reasonably necessary to remedy such Long-Term Cure
Default and (z) complete such remedy within a reasonable
time after the date of said notice of Landlord;
provided, however, that the foregoing extension of the
cure period beyond twenty-five (25) to cure a Long-Term
Cure Default shall not apply if the continuance of such
Long-Term Cure Default for the period required for cure
would (A) subject Landlord or the lessor under the Unit
Lease or any Superior Mortgagee or Superior Lessor to
prosecution for a crime, (B) subject the Premises or any
part thereof or the Building or Land, or any part
thereof, to being condemned or vacated or (C) result in
the termination of the Unit Lease or any Superior Lease
or foreclosure of any Superior Mortgage; or
(c) Tenant shall fail to maintain in full force and
effect any of the insurance policies that it is required
to maintain pursuant to Article 9 which failure
continues for more than ten (10) days after Landlord
shall have given Tenant a notice specifying same;
then in any of said cases Landlord, during the continuance of such
default, may give to Tenant a notice of intention to end the term of
this Lease at the expiration of five (5) days from the date of the
service of such notice of intention, and upon the expiration of said
five days this Lease and the term and estate hereby granted, whether
or not the term shall theretofore have commenced, shall terminate with
the same effect as if that day was the day herein definitely fixed for
the end and expiration of this Lease, but Tenant shall remain liable
for damages as provided in Article 24 hereof.
22.03. If Tenant shall have assigned its interest in this Lease, and
this Lease shall thereafter be disaffirmed or rejected in any proceeding under
the United States Bankruptcy Code or under the provisions of any Federal, state
or foreign law of like import, or in the event of termination of this Lease by
reason of any such proceeding, the Tenant named herein or any subsequent
assignor of its interest under this Lease, upon request of Landlord given within
ninety (90) days after such disaffirmance or rejection shall (a) pay to Landlord
all Fixed Rent and Additional Charges then due and payable to Landlord under
this Lease to and including the date of such disaffirmance or rejection and (b)
enter into a new lease as lessee with Landlord of the Premises for a term
commencing on the effective date of such disaffirmance or rejection and ending
on the Expiration Date, unless sooner terminated as in such lease provided, at
the same Fixed Rent and Additional Charges and upon the then executory terms,
covenants and conditions as are contained in this Lease, except that (i) the
rights of the lessee under the new lease, shall be subject to any possessory
rights of the assignee in question under this Lease and any rights of persons
claiming through or under such assignee, (ii) such new lease shall require all
defaults existing under this Lease to be cured by the lessee with reasonable
diligence, and (iii) such new
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lease shall require the lessee to pay all Additional Charges which, had this
Lease not been disaffirmed or rejected, would have become due after the
effective date of such disaffirmance or rejection with respect to any prior
period. If the lessee shall fail or refuse to enter into the new lease within
ten (10) days after Landlord's request to do so, then in addition to all other
rights and remedies by reason of such default, under this Lease, at law or in
equity, Landlord shall have the same rights and remedies against the lessee as
if the lessee had entered into such new lease and such new lease had thereafter
been terminated at the beginning of its term by reason of the default of the
lessee thereunder.
ARTICLE 23
REENTRY BY LANDLORD
23.01. If an Event of Default shall occur, or if this Lease shall
terminate as provided in Article 22 hereof, Landlord or Landlord's agents and
employees may, in the case of any such default, during the continuance thereof,
or in case of any such termination, immediately or at any time thereafter
reenter the Premises, or any part thereof, either by summary dispossess
proceedings or by any suitable action or proceeding at law, or by force or
otherwise, without being liable to indictment, prosecution or damages therefor,
and may repossess the same, and may remove any person therefrom, to the end that
Landlord may have, hold and enjoy the Premises. The word "reenter," as used
herein, is not restricted to its technical legal meaning. If this Lease is
terminated under the provisions of Article 22, or if Landlord shall reenter the
Premises under the provisions of this article, or in the event of the
termination of this Lease, or of reentry, by or under any summary dispossess or
other proceeding or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the
Fixed Rent and Additional Charges payable up to the time of such termination of
this Lease, or of such recovery of possession of the Premises by Landlord, as
the case may be, and shall also pay to Landlord damages as provided in Article
24 hereof.
23.02. In the event of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
23.03. If this Lease shall terminate under the provisions of Article 22
hereof, or if Landlord shall reenter the Premises under the provisions of this
Article 23, or in the event of the termination of this Lease, or of reentry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such monies shall be credited by
Landlord against any Fixed Rent or Additional Charges due from Tenant at the
time of such termination or reentry or, at Landlord's option, against any
damages payable by Tenant under Article 24 hereof or pursuant to law.
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ARTICLE 24
DAMAGES
24.01. If this Lease is terminated under the provisions of Article 22
hereof, or if Landlord shall reenter the Premises under the provisions of
Article 23 hereof, or in the event of the termination of this Lease, or of
reentry, by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Tenant
shall pay to Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or at
the time of any such reentry by Landlord, as the case may be,
represents the then value of the excess, if any (assuming a discount
at a rate per annum equal to the interest rate then applicable to
7-year Federal Treasury Bonds), of (i) the aggregate amount of the
Fixed Rent and the Additional Charges under Article 3 hereof which
would have been payable by Tenant (conclusively presuming the
average monthly Additional Charges under Article 3 hereof to be the
same as were payable for the last 12 calendar months, or if less
than 12 calendar months have then elapsed since the Commencement
Date, all of the calendar months immediately preceding such
termination or reentry) for the period commencing with such earlier
termination of this Lease or the date of any such reentry, as the
case may be, and ending with the date contemplated as the expiration
date hereof if this Lease had not so terminated or if Landlord had
not so reentered the Premises, over (ii) the aggregate fair market
rental value of the Premises for the same period, or
(b) sums equal to the Fixed Rent and the Additional Charges under
Article 3 hereof which would have been payable by Tenant had this
Lease not so terminated, or had Landlord not so reentered the
Premises, payable upon the due dates therefor specified herein
following such termination or such reentry and until the date
contemplated as the expiration date hereof if this Lease had not so
terminated or if Landlord had not so reentered the Premises,
PROVIDED, HOWEVER, that if Landlord shall relet the Premises during
said period, Landlord shall credit Tenant with the net rents
received by Landlord from such reletting, such net rents to be
determined by first deducting from the gross rents as and when
received by Landlord from such reletting the expenses incurred or
paid by Landlord in terminating this Lease or in reentering the
Premises and in securing possession thereof, as well as the expenses
of reletting, including, without limitation, altering and preparing
the Premises for new tenants, brokers' commissions, reasonable legal
fees, and all other expenses properly chargeable against the
Premises and the rental therefrom, it being understood that any such
reletting may be for a period shorter or longer than the remaining
term of this Lease; but in no event shall Tenant be entitled to
receive any excess of such net rents over the sums payable by Tenant
to Landlord hereunder, nor shall Tenant be entitled in any suit for
the collection of damages pursuant to this subdivision to a credit
in respect of any net rents from a reletting,
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except to the extent that such net rents are actually received by
Landlord. If the Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square
foot basis shall be made of the rent received from such reletting
and of the expenses of reletting.
If the Premises or any part thereof be relet by Landlord for the greater of ten
(10) years or the unexpired portion of the term of this Lease, or any part
thereof, before presentation of proof of such damages to any court, commission
or tribunal, the amount of rent reserved upon such reletting shall, prima facie,
be the fair and reasonable rental value for the Premises, or part thereof, so
relet during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure or refusal to relet the Premises or any part thereof,
or if the Premises or any part thereof are relet, for its failure to collect the
rent under such reletting, and no such refusal or failure to relet or failure to
collect rent shall release or affect Tenant's liability for damages or otherwise
under this Lease.
24.02. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
so terminated under the provisions of Article 22 hereof, or had Landlord not
reentered the Premises. Nothing herein contained shall be construed to limit or
preclude recovery by Landlord against Tenant of any sums or damages to which, in
addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant. Nothing
herein contained shall be construed to limit or prejudice the right of Landlord
to prove for and obtain as damages by reason of the termination of this Lease or
reentry on the Premises for the default of Tenant under this Lease an amount
equal to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages are to be proved
whether or not such amount be greater than any of the sums referred to in
Section 24.01 hereof.
ARTICLE 25
AFFIRMATIVE WAIVERS
25.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Premises or to have a continuance of this Lease after
being dispossessed or ejected therefrom by process of law or under the terms of
this Lease or after the termination of this Lease as provided in this Lease.
25.02. If Tenant is in arrears in payment of Fixed Rent or Additional
Charges, Tenant waives Tenant's right, if any, to designate the items to which
any payments made by Tenant are to be credited, and Tenant agrees that Landlord
may apply any payments made by Tenant to such items as Landlord sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items which any such payments shall be credited.
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25.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
including, without limitation, any claim of injury or damage, and any emergency
and other statutory remedy with respect thereto.
25.04. Tenant waives the right to interpose any counterclaim of any kind
in any action or proceeding commenced by Landlord to recover possession of the
Premises (other than compulsory counterclaims).
ARTICLE 26
NO WAIVERS
26.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, and such
right to insist upon strict performance shall continue and remain in full force
and effect with respect to any subsequent breach, act or omission. The receipt
by Landlord of Fixed Rent or partial payments thereof or Additional Charges or
partial payments thereof with knowledge of breach by Tenant of any obligation of
this Lease shall not be deemed a waiver of such breach.
26.02. If there be any agreement between Landlord and Tenant providing for
the cancellation of this Lease upon certain provisions or contingencies and/or
an agreement for the renewal hereof at the expiration of the term, the right to
such renewal or the execution of a renewal agreement between Landlord and Tenant
prior to the expiration of the term shall not be considered an extension thereof
or a vested right in Tenant to such further term so as to prevent Landlord from
canceling this Lease and any such extension thereof during the remainder of the
original term; such privilege, if and when so exercised by Landlord, shall
cancel and terminate this Lease and any such renewal or extension; any right
herein contained on the part of Landlord to cancel this Lease shall continue
during any extension or renewal hereof; any option on the part of Tenant herein
contained for an extension or renewal hereof shall not be deemed to give Tenant
any option for a further extension beyond the first renewal or extended term.
ARTICLE 27
CURING DEFAULTS
27.01. (a) If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord without thereby waiving such default, may
(but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of the
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applicable grace period, if any, and Landlord has given to Tenant at least ten
(10) days prior notice of its intention to take action under this Section 27.01.
(b) Bills for any expenses incurred by Landlord in connection with
any such performance by it for the account of Tenant, and, if Landlord shall
have been the successful party in any action or suit, bills for all costs,
expenses and disbursements of every kind and nature whatsoever, including
reasonable counsel fees, involved in collecting or endeavoring to collect the
Fixed Rent or Additional Charges or any part thereof or enforcing or endeavoring
to enforce any rights against Tenant or Tenant's obligations hereunder, under or
in connection with this Lease or pursuant to law, including any such cost,
expense and disbursement involved in instituting and prosecuting summary
proceedings or in recovering possession of the Premises after default by Tenant
or upon the expiration or sooner termination of this Lease, and interest on all
sums advanced by Landlord under this Section 27.01 (at the Interest Rate or the
maximum rate permitted by law, whichever is less) may be sent by Landlord to
Tenant monthly, or immediately, at its option, and such amounts shall be due and
payable as Additional Charges in accordance with the terms of such bills.
Notwithstanding anything to the contrary contained in this Section, Tenant shall
have no obligation to pay Landlord's costs, expenses, or disbursements in any
proceeding in which there shall have been rendered a final judgment against
Landlord, and the time for appealing such final judgment shall have expired.
27.02. If Landlord shall default in the performance of any of Landlord's
obligations under this Lease, Tenant, without thereby waiving such default, may
(but shall not be obligated to) perform the same for the account and at the
expense of Landlord, without notice in a case of emergency, and in any other
case only if such default shall continue and not be remedied within the
"LANDLORD APPLICABLE CURE PERIOD" (as such term is hereinafter defined), and
Tenant has given at least ten (10) days prior notice to Landlord of its
intention to take action under this Section 27.02. All reasonable costs and
expenses incurred by Tenant in connection with any such performance by it for
the account of Landlord, and any expenses referred to in Section 27.03 hereof
incurred by Tenant, together with interest at the Interest Rate or the maximum
rate permitted by law, whichever is less, on all such costs and expenses from
the date incurred until the date paid by Landlord shall be reimbursed by
Landlord to Tenant within thirty (30) days after demand by Tenant therefor. In
the event Landlord shall fail so to reimburse Tenant for such amounts within
such thirty (30) day period, Tenant shall have the right to offset such amounts
against the next installment(s) of Fixed Rent and/or Additional Charges payable
under this Lease. As used herein the term "LANDLORD APPLICABLE CURE PERIOD"
shall mean thirty (30) days after Tenant shall have given to Landlord a notice
specifying the default, or, in the case of a default which cannot with due
diligence be cured within a period of thirty (30) days (a "LANDLORD LONG-TERM
CURE DEFAULT"), if Landlord shall not (x) within said thirty (30) day period
advise Tenant of Landlord's intention to take all steps reasonably necessary to
remedy such Landlord Long-Term Cure Default, (y) duly commence within said
thirty (30) day period, and thereafter diligently prosecute to completion all
steps reasonably necessary to remedy such Landlord Long-Term Cure Default and
(z) complete such remedy within a reasonable time after the date of said notice
of Tenant; provided, however, that the foregoing extension of the cure period
beyond thirty (30) days to cure a Landlord Long-Term Cure Default shall not
apply if the continuance of such
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Landlord Long-Term Cure Default for the period required for cure would (A)
subject Tenant to prosecution for a crime, (B) subject the Premises or any part
thereof or the Building or Land, or any part thereof, to being condemned or
vacated or (C) result in the termination of the Unit Lease, or (D) prevent
Tenant from performing or completing any Alterations required by Tenant for the
conduct of its business in the Premises.
27.03. (a) If Tenant shall have been the successful party in any action or
suit in connection with Landlord's obligations under this Lease, Landlord shall
reimburse Tenant for all costs, expenses and disbursements of every kind and
nature whatsoever (including reasonable counsel fees) incurred by Tenant in
connection with enforcing or endeavoring to enforce any rights against Landlord
or Landlord's obligations hereunder, under or in connection with this Lease or
pursuant to law, together with interest at the Interest Rate or the maximum rate
permitted by law, whichever is less, from the date incurred until the date paid
by Landlord.
(b) If Landlord shall have been the successful party in any action
or suit in connection with Tenant's obligations under this Lease, Tenant shall
reimburse Landlord for all costs, expenses and disbursements of every kind and
nature whatsoever (including reasonable counsel fees) incurred by Landlord in
connection with enforcing or endeavoring to enforce any rights against Tenant or
Tenant's obligations hereunder, under or in connection with this Lease or
pursuant to law, together with interest at the Interest Rate or the maximum rate
permitted by law, whichever is less, from the date incurred until the date paid
by Tenant.
ARTICLE 28
BROKER
28.01. (a) Tenant covenants, warrants and represents that Tenant had no
conversations or negotiations with any broker concerning the leasing of the
Premises. Tenant agrees to indemnify and hold harmless Landlord against and from
any claims for any brokerage commissions relative to this Lease and all costs,
expenses and liabilities in connection therewith, including, without limitation,
reasonable attorneys' fees and expenses, arising out of any conversations or
negotiations had by Tenant with any broker.
(b) Landlord covenants, warrants and represents that Landlord had no
conversations or negotiations with any broker concerning the leasing of the
Premises. Landlord agrees to indemnify and hold harmless Tenant against and from
any claims for any brokerage commissions relative to this Lease and all costs,
expenses and liabilities in connection therewith, including, without limitation,
reasonable attorneys' fees and expenses, arising out of any conversations or
negotiations had by Landlord with any broker.
ARTICLE 29
NOTICES
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29.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to this Lease or pursuant to any applicable law or requirement of public
authority (collectively, "NOTICES") shall be in writing (whether or not so
stated elsewhere in this Lease) and shall be deemed to have been properly given,
rendered or made only if sent (i) by registered or certified mail, return
receipt requested, posted in a United States post office station or letter box
in the continental United States, or (ii) by overnight courier service (e.g.,
Federal Express) with verification of delivery requested, addressed to the other
party as follows:
If to Landlord:
c/o Forest City Xxxxxx Companies
Xxx Xxxxx Xxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: General Counsel
and if to Tenant as follows:
---------------------------------
---------------------------------
---------------------------------
---------------------------------
and shall be deemed to have been given, rendered or made (x) if mailed, on the
second Business Day following the day so mailed, unless mailed to a location
outside of the State of New York, in which case it shall be deemed to have been
given, rendered or made on the third business day after the day so mailed, or
(y) if sent by overnight courier, one (1) Business Day after the day sent.
Either party may, by notice as aforesaid, designate a different address or
addresses for notices intended for it.
29.02. Notices hereunder from Landlord may be given by Landlord's managing
agent, if one exists, or by Landlord's attorney. Notices hereunder from Tenant
may be given by Tenant's attorney.
29.03. In addition to the foregoing, either Landlord or Tenant may, from
time to time, request in writing that the other party serve a copy of any notice
on one other person or entity designated in such request in addition to the two
persons or entities designated in Section 29.01 hereof, and Landlord shall also
have the right to request in writing that Tenant serve a copy of any notice on
the lessor under the Unit Lease or any Superior Lessor or Superior Mortgagee,
such service in any case to be effected as provided in Section 29.01 or 29.02
hereof.
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ARTICLE 30
ESTOPPEL CERTIFICATES
30.01. Each party agrees, at any time and from time to time, as requested
by the other party with not less than 10 days' prior notice, to execute and
deliver to the other a statement
(i) certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications,
that the same is in full force and effect as modified
and stating the modifications),
(ii) certifying the dates to which the Fixed Rent and
Additional Charges have been paid,
(iii) certifying as to the name and address of all
persons or entities to whom notices are to be given on
behalf of such party,
(iv) stating whether or not, to the best knowledge of
the signer, the other party is in default in performance
of any of its obligations under this Lease, and if so,
specifying each such default of which the signer shall
have knowledge, and
(v) stating whether or not, to the best knowledge of the
signer, any event has occurred which with the giving of
notice or passage of time, or both, would constitute
such a default, and, if so, specifying each such event
of which the signer shall have knowledge,
it being intended that any such statement delivered pursuant hereto shall be
deemed a representation and warranty to be relied upon by the party requesting
the certificate and by others with whom such party may be dealing, regardless of
independent investigation. Tenant also shall include in any such statement such
other information concerning this Lease to the best knowledge of the signer as
Landlord may reasonably request.
ARTICLE 31
MEMORANDUM OF LEASE
31.01. Tenant shall not record this Lease, but at the request of either
party, Landlord and Tenant shall execute, acknowledge and deliver, and Landlord
or Tenant may record, a statutory form of memorandum with respect to this Lease
pursuant to the provisions of Section 291-C of the Real Property Law of the
State of New York.
ARTICLE 32
NO REPRESENTATIONS BY LANDLORD
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32.01. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement which may be made between the parties concurrently with the
execution and delivery of this Lease and shall expressly refer to this Lease.
All understandings and agreements relating to the subject matter of this Lease
heretofore had between the parties are merged in this Lease and any other
written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation, neither party relying upon any statement or representation
not embodied in this Lease or any other written agreement(s) made concurrently
herewith.
ARTICLE 33
HAZARDOUS MATERIALS
33.01. Landlord covenants that upon delivery to Tenant of any portion of
the Premises such portion of the Premises will be free of any Hazardous
Materials that are required by applicable Legal Requirements to be removed or
remediated or that would be required by applicable Legal Requirements to be
removed or remediated if the same were to be disturbed or otherwise affected by
work or other activity in or about the Building.(17) In the event that after the
date hereof there are found in the Premises any Hazardous Materials that are
required by applicable Legal Requirements to be removed or remediated (including
so required by reason of or in connection any work or other activity performed
or desired to be performed by Tenant which would disturb or otherwise affect the
same) then, as Tenant's sole remedy in connection therewith, Tenant may remove
or otherwise remediate such Hazardous Materials at Landlord's expense; provided,
however, that at Landlord's option, such removal or remediation shall be
supervised, at Landlord's expense, by an environmental consultant designated by
Landlord. This paragraph shall not be applicable to any Hazardous Materials
brought to or placed at the Premises by Tenant or any of Tenant's subtenants or
licensees or its or their employees, agents, contractors or invitees.
33.02. Tenant shall not cause or permit Hazardous Materials to be used,
transported, stored, released, handled, produced or installed in, on or from,
the Premises or the Building, provided that the foregoing shall not be deemed to
prohibit Tenant from utilizing in the Premises, as an incident to the use
permitted pursuant to Article 2 hereof, any materials in amounts and forms as
are generally used by tenants in first-class office buildings in lower Manhattan
using
---------------
(17) If and for so long as the "Landlord" under this Lease is (A)(i)
Ground Lessor and (ii) a governmental entity or a public benefit corporation, or
(B) the party who acquires the interest of the "Landlord" in this Lease from
such governmental entity or public benefit corporation (but not any other party
who becomes the "Landlord" under this Lease), the covenant set forth in this
sentence shall not be applicable, provided, however, that Tenant's remedies as
set forth in the second sentence of this section shall continue to apply.
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premises for the purposes for which Tenant is permitted to use the Premises
pursuant to Article 2 hereof, provided that (i) the use or storage of such
materials in the Building shall not be prohibited by applicable Legal
Requirements or the requirements of any insurance bodies, (ii) such materials
are stored and safeguarded in a manner reasonably satisfactory to Landlord and
in compliance with all applicable Legal Requirements, (iii) no such materials
shall in any event be released or discharged other than as their use dictates or
in such a manner as to contaminate the Building or the Premises, and (iv) such
materials shall not be incorporated into, or used as part of, the construction
or decoration of the Premises in violation of law. In the event of a breach of
the provisions of this Section 33.02, Landlord shall, in addition to all of its
rights and remedies under this Lease and pursuant to law, require Tenant to
remove any such Hazardous Materials from the Premises in the manner prescribed
for such removal by Legal Requirements. The provisions of this Section 33.02
shall survive the termination of this Lease.
33.03. The term "HAZARDOUS MATERIALS" shall, for the purposes hereof, mean
any flammable explosives, radioactive materials, hazardous wastes, hazardous and
toxic substances, or related materials, asbestos or any material containing
asbestos, or any other substance or material, as defined by any federal, state
or local environmental law, ordinance, rule or regulation including, without
limitation, the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended, the Hazardous Materials Transportation Act, as amended,
the Resource Conservation and Recovery Act, as amended, and in the regulations
adopted and publications promulgated pursuant to each of the foregoing.
ARTICLE 34
MISCELLANEOUS PROVISIONS AND DEFINITIONS
34.01. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, including, without limitation, this Section 34.01, unless such agreement
is in writing, refers expressly to this Lease and is signed by the party against
whom enforcement of the change, modification, waiver, release, discharge,
termination or effectuation of the abandonment is sought. If Tenant shall at any
time request Landlord to sublet the Premises for Tenant's account, Landlord or
its agent is authorized to receive keys for such purposes without releasing
Tenant from any of its obligations under this Lease, and Tenant hereby releases
Landlord of any liability for loss or damage to any of the Tenant's Property in
connection with such subletting unless caused by or resulting from the
negligence or willful act of Landlord, its agents, servants, contractors, or
employees.
34.02. Except as otherwise expressly provided in this Lease, the
obligations of this Lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; PROVIDED, HOWEVER, that (a) no violation of the
provisions of Article 7 shall operate to vest any rights in any successor or
assignee of Tenant and (b) the provisions of this Article 34 shall not be
construed as modifying the conditions of limitation contained in Article 22.
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34.03. Intentionally omitted.
34.04. (a) Except as expressly provided in Section 34.04(b) and Articles
19 and 20 hereof, the obligations of Tenant hereunder shall be in no wise
affected, impaired or excused, nor shall Landlord have any liability whatsoever
to Tenant, nor shall it be deemed a constructive eviction because (a) Landlord
is unable to fulfill, or is delayed in fulfilling, any of its obligations under
this Lease by reason of strike, lock-out or other labor trouble, governmental
preemption of priorities or other controls in connection with a national or
other public emergency or shortages of fuel, supplies or labor resulting
therefrom, or any other cause, whether similar or dissimilar, beyond Landlord's
reasonable control; or (b) of any failure or defect in the supply, quantity or
character of electricity or water furnished to the Premises, by reason of any
requirement, act or omission of the public utility or others serving the
Building with electric energy, steam, oil, gas or water, or for any other reason
whether similar or dissimilar, beyond Landlord's reasonable control (the
foregoing circumstances described in this Section 34.04 being "FORCE MAJEURE
CAUSES"). Landlord shall give Tenant prompt notice of the occurrence of any
Force Majeure Cause and shall use diligent efforts to overcome any such Force
Majeure Cause, including, without limitation, the performance of such work on an
overtime or premium-pay basis to the extent required of a Unit Owner under the
Declaration.
(b) Notwithstanding anything to the contrary contained in this
Lease, but subject to the provisions of Article 19 and 20 hereof to the extent
applicable, if for a period of two (2) consecutive Business Days (commencing on
the day after the date Tenant delivers the notice required in (z) below to
Landlord) Landlord fails to provide the services or make the repairs required of
Landlord under this Lease to be provided to the Premises or any portion thereof,
and (w) the cause of such failure shall not be Force Majeure Causes or the act
or omission of Tenant, its agents, representatives, contractors or employees,
and (x) as a result of such failure the Premises or any portion thereof shall be
rendered untenantable and (y) as a result of such failure Tenant shall not use
the Premises or such portion thereof for the conduct of its business except to
retrieve records and/or maintain equipment, and (z) Tenant shall concurrently
with its failure to use the Premises give notice of such fact to Landlord; then,
in such event, the Fixed Rent and Additional Charges under Article 3 payable
pursuant to this Lease shall be abated for the period commencing on the day
immediately succeeding the expiration of such two (2) consecutive Business Day
period and ending on the date that the Premises or such portion thereof shall be
rendered tenantable (or such earlier date, if any, as Tenant shall reoccupy the
Premises or such portion thereof for the conduct of its business).
34.05. For the purposes of this Lease, the following terms have the
meanings indicated:
(a) The term "MORTGAGE" shall include a mortgage and/or a deed of
trust, and the term "holder of a mortgage" or "mortgagee" or words of similar
import shall include a mortgagee of a mortgage or a beneficiary of a deed of
trust.
(b) The term "LAWS AND REQUIREMENTS OF ANY PUBLIC AUTHORITIES" and
words of a similar import shall mean laws and ordinances of any or all of the
federal, state, city, town,
71
county, borough and village governments including, without limitation, The
Americans with Disabilities Act of 1990, as amended, and rules, regulations,
orders and directives of any and all departments, subdivisions, bureaus,
agencies or offices thereof, and of any other governmental, public or
quasi-public authorities having jurisdiction over the Building and/or the
Premises, and the direction of any public officer pursuant to law, whether now
or hereafter in force.
(c) The term "REQUIREMENTS OF INSURANCE BODIES" and words of similar
import shall mean rules, regulations, orders and other requirements of the New
York Board of Underwriters and/or the New York Fire Insurance Rating
Organization and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance over the Building and/or the
Premises, whether now or hereafter in force.
(d) The term "TENANT" shall mean the Tenant herein named or any
assignee or other successor in interest (immediate or remote) of the Tenant
herein named, which at the time in question is the owner of the Tenant's estate
and interest granted by this Lease; but the foregoing provisions of this Section
shall not be construed to permit any assignment of this Lease or to relieve the
Tenant herein named or any assignee or other successor in interest (whether
immediate or remote) of the Tenant herein named from the full and prompt
payment, performance and observance of the covenants, obligations and conditions
to be paid, performed and observed by Tenant under this Lease.
(e) The term "LANDLORD" shall mean only the owner at the time in
question of the Unit or the lessee under a severance lease covering the Unit, so
that in the event of any transfer of the Unit, (any such transfer being a
"Transfer"), the transferor (a "Transferor") shall be and hereby is relieved and
freed of, and it shall be deemed, without further agreement that upon a
subsequent Transfer, the transferee (a "Transferee") has assumed and agreed to
perform, all obligations of Landlord under this Lease.
(f) The terms "herein," "hereof" and "hereunder," and words of
similar import, shall be construed to refer to this Lease as a whole, and not to
any particular article or section, unless expressly so stated.
(g) The term "and/or" when applied to one or more matters or things
shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(h) The term "PERSON" shall mean any natural person or persons, a
partnership, a corporation, and any other form of business or legal association
or entity.
(i) The terms "Landlord shall have no liability to Tenant" or "the
same shall be without liability to Landlord" or "without incurring any liability
to Tenant therefor", or words of similar import shall mean that Tenant is not
entitled to terminate this Lease, or to claim actual or constructive eviction,
partial, or total, or to receive any abatement or diminution of rent, or to be
relieved in any manner of any of its other obligations hereunder, or to be
compensated for loss
72
or injury suffered or to enforce any other right or kind of liability whatsoever
against Landlord under or with respect to this Lease or with respect to Tenant's
use or occupancy of the Premises.
(j) The term "INTEREST RATE," when used in this Lease, shall mean an
interest rate equal to two percent (2%) above the so-called annual "BASE RATE"
of interest established and approved by Citibank, N.A., New York, New York, from
time to time, as its interest rate charged for unsecured loans to its corporate
customers, but in no event greater than the highest lawful rate from time to
time in effect.
(k) The term "CONSUMER PRICE INDEX" shall mean the Consumer Price
Index for All Urban Consumers ("CPI-AUC"), New York, New York-Northeastern New
Jersey, All Items (1982-1984=100), issued and published by the Bureau of Labor
Statistics of the United States Department of Labor. In the event that CPI-AUC
ceases to use a 1982-84 base rate of 100 as the basis of calculation, or if a
substantial change is made in the terms or number of items contained in CPI-AUC,
then the CPI-AUC shall be adjusted to the figure that would have been arrived at
had the manner of computing the CPI-AUC in effect at the date of this Lease not
been altered. If CPI-AUC is not available, the term "Consumer Price Index" shall
mean (i) a successor or substitute index to CPI-AUC, appropriately adjusted; or
(ii) if such a successor or substitute index is not available or may not
lawfully be used for the purposes herein stated, a reliable governmental or
other non-partisan publication, selected by Landlord and approved by Tenant
(which approval shall not be unreasonably withheld or delayed), evaluating the
information theretofore used in determining CPI-AUC.
(i) The term "LEGAL REQUIREMENTS" and words of a similar import
shall mean laws and ordinances of any or all of the federal, state, city, town,
county, borough and village governments and rules, regulations, orders and
directives of any and all departments, subdivisions, bureaus, agencies or
offices thereof, and of any other governmental, public or quasi-public
authorities having jurisdiction over the Building and/or the Premises, and the
direction of any public officer pursuant to law, whether now or hereafter in
force.
34.06. All obligations and liabilities of Landlord or Tenant to the other
which accrued before the expiration or earlier termination of this Lease and all
such obligations and liabilities which by their nature or under the
circumstances can only be, or by the provisions of this Lease may be performed
after such expiration or other termination, shall survive the expiration or
earlier termination of this Lease. Without limiting the generality of the
foregoing, the rights and obligations of the parties with respect to any
indemnity under this Lease, and with respect to Tax Payments, Operating Payments
and any other amounts payable by either party under this Lease, shall survive
the expiration or earlier termination of this Lease.
34.07. (a) If Tenant shall request Landlord's consent and Landlord shall
fail or refuse to give such consent, Tenant shall not be entitled to any damages
or any other remedy for any withholding by Landlord of its consent; provided,
however, that in those cases in which Landlord has expressly agreed in this
Lease not to unreasonably withhold its consent or where as a matter of law
Landlord may not unreasonably withhold its consent, Tenant shall have the right,
as its
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sole and exclusive remedy, either (i) to prosecute an action for specific
performance, injunction and/or (if Landlord shall have acted in bad faith)
damages, or (ii) to submit the dispute to arbitration in The City of New York in
accordance with the following provisions of Section 34.07(b).
(b) Within ten (10) Business Days next following the giving of any
notice by Tenant stating that it wishes to submit the dispute to arbitration
pursuant to this Section 34.07(b), Landlord and Tenant shall each give notice to
the other setting forth the name and address of an arbitrator designated by the
party giving such notice. If the two arbitrators shall fail to agree upon the
designation of a third arbitrator within five (5) Business Days after the
designation of the second arbitrator then either party may apply to the American
Arbitration Association in New York City for the designation of such arbitrator
and if he is unable or refuses to act within ten (10) Business Days, then either
party may apply to the Supreme Court in New York County or to any other court
having jurisdiction for the designation of such arbitrator. The three
arbitrators shall conduct such hearings as they deem appropriate, making their
determination in writing and giving notice to Landlord and Tenant of their
determination as soon as practicable, and if possible, within five (5) Business
Days after the designation of the third arbitrator; the concurrence of or, in
the event no two of the arbitrators shall render a concurring determination,
then the determination of the third arbitrator designated, shall be binding upon
Landlord and Tenant. Judgment upon any decision rendered in any arbitration held
pursuant to this Section 34.07(b) shall be final and binding upon Landlord and
Tenant, whether or not a judgment shall be entered in any court. Each party
shall pay its own counsel fees and expenses, if any, in connection with any
arbitration under this Section 34.07(b), including the expenses and fees of any
arbitrator selected by it in accordance with the provisions of this Section
34.07(b), and the parties shall share all other expenses and fees of any such
arbitration. The arbitrators shall be bound by the provisions of this Lease, and
shall not add to, subtract from or otherwise modify such provisions. The sole
remedy which may be awarded by the arbitrators in any proceeding pursuant to
this Section 34.07 is an order compelling Landlord to consent to or approve the
matter in dispute, and the arbitrators may not award damages or grant any
monetary award or any other form of relief.
34.08. If an excavation shall be made upon land adjacent to or under the
Building, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause such excavation, license to enter the Premises
for the purpose of performing such work as said person shall deem necessary or
desirable to preserve and protect the Building from injury or damage to support
the same by proper foundations, without any claim for damages or liability
against Landlord and without reducing or otherwise affecting Tenant's
obligations under this Lease.
34.09. Tenant shall not place a load upon any floor of the Premises which
violates applicable law or the certificate of occupancy of the Building (as now
in effect or as the same may be amended pursuant to Section 2.04(b)) or which
exceeds the floor load per square foot which such floor was designed to carry or
is reinforced (in compliance with the applicable provisions of this Lease) to
carry. All heavy material and/or equipment must be placed by Tenant, at Tenant's
expense, so as to distribute the weight. Business machines and mechanical
equipment shall be placed and maintained by Tenant, at Tenant's expense, in
settings sufficient in Landlord's
74
reasonable judgment to absorb and prevent vibration, noise and annoyance. If the
Premises be or become infested with vermin as a result of the use or any misuse
or neglect of the Premises by Tenant, its agents, employees, visitors or
licensees, Tenant shall at Tenant's expense cause the same to be exterminated
from time to time to the reasonable satisfaction of Landlord and shall employ
such exterminators and such exterminating company or companies as shall be
reasonably approved by Landlord.
34.10. Irrespective of the place of execution or performance, this Lease
shall be governed by and construed in accordance with the laws of the State of
New York. If any provisions of this Lease or the application thereof to any
person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Lease and the application of that provision
to other persons or circumstances shall not be affected but rather shall be
enforced to the extent permitted by law. The table of contents, captions,
headings and titles in this Lease are solely for convenience of references and
shall not affect its interpretation, this Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. Each covenant, agreement, obligation or other
provision of this Lease on the part of Landlord or Tenant to be performed, shall
be deemed and construed as a separate and independent covenant of such party,
not dependent on any other provision of this Lease. All terms and words used in
this Lease, shall be deemed to include any other number and any other gender as
the context may require.
34.11. If under the terms of this Lease Tenant is obligated to pay
Landlord a sum in addition to the Fixed Rent, Tax Payments or Operating Payments
payable under this Lease and no payment period therefor is specified, Tenant
shall pay Landlord the amount due within thirty (30) days after being billed,
unless such sum relates to the provision of electricity to Tenant, in which
event Tenant shall pay Landlord the amount due within twenty (20) days after
being billed.
34.12. Notwithstanding anything to the contrary contained in this Lease,
during the continuance of any default by Tenant in the payment of any sums due
hereunder after the giving of notice and the expiration of any applicable grace
periods hereunder, Tenant shall not be entitled to exercise any expansion or
renewal rights or options, or to receive any funds or proceeds being held, under
or pursuant to this Lease.
34.13. Each of Landlord and Tenant represents and warrants that this Lease
has been duly authorized, executed and delivered by such party.
34.14. Any sums which are owed to or are to be reimbursed by Landlord to
Tenant under any provision of this Lease and not paid within twenty (20) days
after their due date may, at the option of Tenant, be credited by Tenant against
the Fixed Rent or Additional Charges payable under this Lease with interest on
the unpaid amount at the Interest Rate from the original due date until repaid
to or credited by Tenant.
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ARTICLE 35
ARBITRATION
35.01. Either party may request arbitration of any matter in dispute
which, pursuant to the terms of this Lease, expressly allows such dispute to be
resolved by arbitration. The party desiring such arbitration shall give notice
to the other party (the "Arbitration Notice"), (a) requesting that the dispute
be submitted to arbitration, (b) setting forth with particularity the nature of
the dispute sought to be arbitrated, and (c) stating that the party sending the
Arbitration Notice desires to meet within ten (10) days with the other party to
attempt to agree on a single arbitrator (the "Arbitrator"). If the parties shall
not have agreed on a choice of an arbitrator within fifteen (15) days after the
service of such Arbitration Notice, then either party may apply to the local
office of the AAA, or if the AAA shall not then exist or shall fail, refuse or
be unable to act such that the Arbitrator is not appointed by the AAA within
thirty (30) day after application therefor, then either party may apply to the
presiding judge of the Supreme Court of New York County (the "Court") and the
other party shall not raise any question as to the Court's full power and
jurisdiction to entertain the application and make the appointment. The date on
which the Arbitrator is appointed by agreement of the parties, by the AAA or by
appointment by the Court, is referred to herein as the "Appointment Date". If
any Arbitrator appointed hereunder shall be unwilling or unable, for reason, to
serve, or continue to serve, a replacement shall be appointed in the same manner
as the original Arbitrator.
35.02. (a) The arbitration shall be conducted in accordance with the then
prevailing rules of the local office of the AAA, modified as follows:
(i) The Arbitrator shall be disinterested and impartial, shall
not be Affiliated with any party to the arbitration, and shall have at least ten
(10) years' experience with the matter which is the subject of the arbitration.
(ii) Promptly following the Appointment Date, the Arbitrator
shall hold one or more hearings with respect to the matter which is the subject
of the arbitration. The hearings shall be held in the City of New York, at such
location and time as shall be specified by the Arbitrator. Each of the parties
shall be entitled to present all relevant evidence and to cross-examine
witnesses at the hearings. The Arbitrator shall have the authority to adjourn
any hearing to such later date as the Arbitrator shall specify, provided that in
all events all hearings shall be concluded not later than forty-five (45) days
following the Appointment Date.
(iii) The Arbitrator shall render his or her determination in
a signed and acknowledged written instrument, original counterparts of which
shall be sent simultaneously to all of the parties to the arbitration, within
ten (10) days after the conclusion of the hearing(s) required by clause (ii) of
this subparagraph.
(b) The arbitration decision, determined as provided in this
Section, shall be conclusive and binding on the parties, shall constitute an
"award" by the Arbitrator within the
76
meaning of the AAA rules and applicable law and judgment may be entered thereon
in any court of competent jurisdiction.
(c) Each party shall pay its own fees and expenses relating to the
arbitration (including, without being limited to, the fees and expenses of its
counsel and of experts and witnesses retained or called by it). Each party shall
pay one-half (1/2) of the fees and expenses of the AAA and of the Arbitrator,
provided that the Arbitrator shall have the authority to award such fees and
expenses in favor of the prevailing party if the Arbitrator determines that the
position of the non-prevailing party lacked substantial basis.
35.03. Landlord and Tenant agree to sign all documents and to do all other
things necessary to submit any such matter to arbitration and further agree to,
and hereby do waive, any and all rights they or either of them may at any time
have to revoke their agreement hereunder to submit to arbitration and to abide
by the decision rendered thereunder. For such period, if any, that this
agreement to arbitrate is not legally binding or the arbitrator's award is not
legally enforceable, the provisions requiring arbitration shall be deemed
deleted, and matters to be determined by arbitration shall be subject to
litigation.
35.04. Any dispute which is required by this Lease to be resolved by
Expedited Arbitration shall be submitted to binding arbitration under the
Expedited Procedures provisions (currently, Rules 56 through 60) of the
Arbitration Rules of the Real Estate Industry of the AAA. In cases where the
parties utilize such expedited arbitration: (i) the parties will have no right
to object if the arbitrator so appointed was on the list submitted by the AAA
and was not objected to in accordance with Rule 54 (except that any objection
shall be made within four days from the date of mailing), (ii) the Notice of
Hearing shall be given four days in advance of the hearing, (iii) the first
hearing shall be held within seven (7) Business Days after the appointment of
the arbitrator, (iv) if the arbitrator shall find that a party acted
unreasonably in withholding or delaying a consent or approval, such consent or
approval shall be deemed granted (but the arbitrator shall not have the right to
award damages, unless the arbitrator shall find that such party acted in bad
faith), and (v) the losing party in such arbitration shall pay the arbitration
costs charged by the AAA and/or the arbitrator, together with the reasonable
counsel fees and disbursements incurred by the prevailing party in connection
with such arbitration.
35.05. The arbitrators shall, in rendering any decision pursuant to this
Article 35, answer only the specific question or questions presented to them. In
answering such question or questions (and rendering their decision), the
arbitrators shall be bound by the provisions of this Lease, and shall not add
to, subtract from or otherwise modify such provisions.
35.06. Judgment may be had on the decision and award of an arbitrator
rendered pursuant to the provisions of this Article 35 and may be enforced in
accordance with the laws of the State of New York.
77
35.07. The provisions of this Article 35 shall not apply to any
arbitration pursuant to Section 1.04(b), which shall be governed by the
provisions of Article XX, Section 8(b) of the Declaration.
35.08. The provisions of this Article 35 shall be applicable with regard
to the Lease whenever (x) there is a dispute between Landlord and Tenant as to
(i) the reasonableness of Landlord's refusal to consent to any Alterations
within the applicable time periods therefor set forth in this Lease, where
Landlord has agreed that its consent would not be unreasonably withheld,
conditioned or delayed, (ii) the reasonableness of Landlord's refusal to consent
to any subletting or assignment, where Landlord has agreed that its consent
would be unreasonably withheld, conditioned or delayed, or (iii) Landlord's
refusal to consent to any other matter, where Landlord has agreed that its
consent would not be unreasonably withheld, conditioned or delayed, within the
time period specified in this Lease for the granting of such consent, or (y)
where otherwise provided in this Lease.
ARTICLE 36
EXTENSION OF TERM OPTIONS
36.01. (a) Tenant shall have the right to extend the term of this Lease
for up to ______________ additional term(s)(18) of ten (10) years each, each
such term (an "EXTENSION TERM") commencing on the day following the expiration
of the initial term of this Lease in the case of the first Extension Term, or
the day following the immediately preceding Extension Term, in the case of
Extension Term after the first Extension Term (the first day of any such
Extension Term being herein referred to as the commencement date of the
applicable Extension Term) and ending on the day preceding the tenth (10th)
anniversary of the commencement date of such Extension Term provided that Tenant
shall give Landlord notice (hereinafter called the "EXTENSION NOTICE") of its
election to extend the term of this Lease at least nine (9) months prior to the
commencement date of the applicable Extension Term.
(b) The fixed annual rent payable by Tenant to Landlord during each
Extension Term shall be determined in accordance with Section 1.04(b) hereof.
(c) Effective as of the Commencement Date of each Extension Term:
(i) the "BASE TAX AMOUNT" shall mean the Taxes, as finally
determined, for the Tax Year in which occurs the Commencement Date
of such Extension Term; and
(ii) "BASE OPERATING YEAR" shall mean the calendar year in
which occurs the Commencement Date of such Extension Term.
----------
(18) To be completed in accordance with Footnote 1.
78
36.02. (a) Except as provided in Section 36.01 hereof, Tenant's occupancy
of the demised premises during any Extension Term shall be on the same terms and
conditions as are in effect immediately prior to the expiration of the initial
term of this Lease or the immediately preceding Extension Term, as the case may
be.
(b) If this Lease is renewed for any Extension Term, then Landlord
or Tenant can request the other party hereto to execute an instrument in form
for recording setting forth the exercise of Tenant's right to extend the term of
this Lease and the last day of such Extension Term, provided, however, the
failure of Landlord or Tenant to execute such an instrument shall have no effect
whatsoever on Tenant's rights pursuant to this Article 36.
(m) If Tenant exercises its right to extend the term of this Lease
for any Extension Term pursuant to this Article, the phrases "the term of this
Lease" or "the term hereof" as used in this Lease, shall be construed to
include, when practicable, such Extension Term.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
_______________________________,Landlord
By: _______________________
Name:
Title:
THE NEW YORK TIMES COMPANY, Tenant
By: _______________________
Name:
Title:
79
Lease
between
__________________________________, LANDLORD,
and
__________________________________, TENANT
Date: ______________
Premises:
The New York Times Building Condominium
[Portion of] Units _____________
TABLE OF CONTENTS
ARTICLE 1 Term and Fixed Rent .................................................4
ARTICLE 2 Delivery and Use of Premises ........................................8
ARTICLE 3 Escalations ........................................................12
ARTICLE 4 Security Deposit ...................................................23
ARTICLE 5 Subordination, Notice to Lessor under the Unit Lease and
Mortgagees .........................................................25
ARTICLE 6 Quiet Enjoyment ....................................................27
ARTICLE 7 Assignment and Subletting ..........................................27
ARTICLE 8 Compliance with Laws ...............................................34
ARTICLE 9 Insurance ..........................................................36
ARTICLE 10 Condominium Provisions ............................................38
ARTICLE 11 Alterations .......................................................39
ARTICLE 12 Landlord's and Tenant's Property ..................................41
ARTICLE 13 Repairs and Maintenance ...........................................42
ARTICLE 14 Electricity .......................................................45
ARTICLE 15 Landlord's Services ...............................................46
ARTICLE 16 Access ............................................................50
ARTICLE 17 Notice of Occurrences .............................................52
ARTICLE 18 Indemnification ...................................................52
ARTICLE 19 Damage or Destruction .............................................53
ARTICLE 20 Eminent Domain ....................................................56
ARTICLE 21 Surrender .........................................................58
ARTICLE 22 Conditions of Limitation ..........................................59
ARTICLE 23 Reentry by Landlord ...............................................61
ARTICLE 24 Damages ...........................................................62
ARTICLE 25 Affirmative Waivers ...............................................63
ARTICLE 26 No Waivers ........................................................64
ARTICLE 27 Curing Defaults ...................................................64
ARTICLE 28 Broker ............................................................66
ARTICLE 29 Notices ...........................................................66
ARTICLE 30 Estoppel Certificates .............................................68
ARTICLE 31 Memorandum of Lease ...............................................68
ARTICLE 32 No Representations by Landlord ....................................68
ARTICLE 33 Hazardous Materials ...............................................69
ARTICLE 34 Miscellaneous Provisions and Definitions ..........................70
ARTICLE 35 Arbitration .......................................................76
ARTICLE 36 Extension of Term Options .........................................78
81
EXHIBITS
Exhibit A -- Land
Exhibit B -- Certificate of Occupancy
Exhibit C -- Rentable Square Feet Measurement Standard
Exhibit D -- Form of Letter of Credit
Exhibit E -- Mortgagee SNDA
Exhibit F -- Unit Lease SNDA
Exhibit G -- Exclusive Use Rights of Other Tenants
Exhibit H -- HVAC Specifications
Exhibit I -- Building Standards
Exhibit J -- Cleaning Specifications
Exhibit K -- Form of Guaranty
Exhibit L -- Form of Confidentiality Agreement
Exhibit M -- Building Systems
EXHIBIT A
LAND
A-1
EXHIBIT B
CERTIFICATE OF OCCUPANCY
B-1
EXHIBIT C
METHOD OF FLOOR MEASUREMENT FOR OFFICE BUILDINGS
[REAL ESTATE BOARD OF NEW YORK -- EFFECTIVE JANUARY 1, 1987]
Measure the floor to the outside surface of the building. Subtract from this
area the following, including the finished enclosing walls:
o Public elevator shafts and elevator machines and their enclosing
walls.
o Public stairs and their enclosing walls.
o Heating, ventilating, and air-conditioning facilities (including
pipes, ducts and shafts) and their enclosing walls; unless such
equipment, mechanical room space, or shafts serve the floor in
questions.
o Fire towers and fire tower courts and their enclosing walls.
o Main telephone equipment rooms and main electric switchgear rooms,
except that telephone equipment, and electric switchgear rooms
serving the floor exclusively shall not be subtracted.
C-1
EXHIBIT D
FORM OF LETTER OF CREDIT
IRREVOCABLE STAND-BY LETTER OF CREDIT
BENEFICIARY: APPLICANT:
EXPIRATION DATE:
AMOUNT:
WE HEREBY ISSUE THIS IRREVOCABLE STAND-BY LETTER OF CREDIT IN YOUR FAVOR WHICH
IS AVAILABLE TO YOU AGAINST PRESENTATION OF YOUR DRAFT AT SIGHT DRAWN ON [BANK]
AND BEARING THE CLAUSE "DRAWN UNDER [BANK] CREDIT NUMBER [____]" ACCOMPANIED BY:
BENEFICIARY'S CERTIFICATION THAT (i) AN EVENT OF DEFAULT HAS OCCURRED UNDER THE
LEASE DATED _________,2__ BETWEEN BENEFICIARY AS LANDLORD AND APPLICANT AS
TENANT, WHICH DEFAULT HAS CONTINUED BEYOND THE EXPIRATION OF ALL APPLICABLE
NOTICE AND CURE PERIODS OR (ii) TENANT UNDER SUCH LEASE HAS NOT RENEWED OR
REPLACED THIS LETTER OF CREDIT AT LEAST 30 DAYS PRIOR TO ITS STATED EXPIRATION
DATE.
IT IS A CONDITION OF THIS LETTER THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED
WITHOUT AN AMENDMENT FOR ONE YEAR FROM THE PRESENT OR ANY FUTURE EXPIRATION DATE
HEREOF UNLESS 30 DAYS PRIOR TO ANY SUCH DATE WE SHALL NOTIFY YOU IN WRITING THAT
WE ELECT NOT TO CONSIDER THIS LETTER OF CREDIT RENEWED FOR ANY SUCH ADDITIONAL
PERIOD. UPON PRESENTATION TO YOU OF SUCH NOTICE, YOU MAY, UNTIL THE EXPIRATION
DATE HEREOF, DRAW THE FULL AMOUNT OF THE CREDIT HEREUNDER, AGAINST YOUR DRAFT.
THIS LETTER OF CREDIT IS NON-NEGOTIABLE, NON-ASSIGNABLE AND NON-TRANSFERABLE
EXCEPT TO ANY SUCCESSOR TO THE BENEFICIARY AS LANDLORD UNDER LEASE, DATED _____,
2___ BETWEEN BENEFICIARY AS LANDLORD AND APPLICANT AS TENANT.
WE HEREBY AGREE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE
TERMS OF THIS CREDIT WILL BE DULY HONORED ON DUE PRESENTATION TO THE DRAWEES IF
PRESENTED ON OR BEFORE THE EXPIRATION DATE.
THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION) INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500.
D-1
EXHIBIT E
MORTGAGEE SNDA
SUBORDINATION. NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement (this
"Agreement") is dated as of the _____ day of _________, 2___, between
________________, a _______________ with an address at
____________________________ ("Lender"), and _________________________, a
___________________ with an address at __________________ ("Tenant").
RECITALS
A. Tenant is the tenant under a certain lease (the "Lease") dated
__________, 2___ with ____________________________ ("Landlord") of the ___ floor
space described in the Lease (the "Premises") located at
_________________________ in the City, County and State of New York and more
particularly described on Exhibit A attached hereto and made a part hereof (such
building and land, including the Premises, is hereinafter referred to as the
"Property").
B. This Agreement is being entered into in connection with a
mortgage loan (as amended and supplemented from time to time, the "Loan") dated
__________, 2___ made by Lender to Landlord, secured by, among other things: (a)
a first mortgage to secure debt on the Property (the "Mortgage") recorded with
the registry or clerk of the county in which the Property is located; and (b) a
first assignment of leases and rents on the Property (the "Assignment of Leases
and Rents") recorded with such registry or clerk. The Mortgage and the
Assignment of Leases and Rents are hereinafter collectively referred to as the
"Security Documents". [RECORDING INFO TO BE ADDED]
AGREEMENT
For mutual consideration, including the mutual covenants and
agreements set forth below, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Subject to the terms, covenants and conditions of this Agreement,
the Lease is and shall be subject and subordinate to the lien of the Security
Documents and to all present or future advances under the obligations secured
thereby and all renewals, amendments, modification, consolidations, replacements
and extensions of the secured obligations and the Security Documents, to the
full extent of all amounts secured by the Security Documents from time to time.
Said subordination is to have the same force and effect as if the Security
Documents and such renewals, modifications, consolidations, replacements and
extension thereof had been
E-1
executed, acknowledged, delivered and recorded prior to the Lease, any
amendments or modifications thereof and any notice thereof.
2. Lender hereby consents to the Lease and agrees that, if Lender
exercises any of its rights under the Security Documents, including an entry by
Lender pursuant to the Mortgage or a foreclosure of the Mortgage, Lender shall
not join Tenant as a party defendant in any foreclosure action unless such
joinder shall be required by law and, subject to the terms of the Lease, shall
not terminate the Lease nor disturb Tenant's right of quiet possession of the
Premises and shall recognize Tenant as its tenant under the terms of the Lease
so long as pursuant to the then existing provisions thereof the Lease is in full
force and effect and Tenant is not in default beyond any applicable notice and
grace period of any term, covenant or condition of the Lease.
3. Tenant agrees that, in the event of a foreclosure of the Mortgage
by Lender or the acceptance of a deed in lieu of foreclosure by Lender or any
other succession of Lender to fee ownership, Tenant will attorn to and recognize
Lender as its landlord under the Lease for the remainder of the term of the
Lease (including all extension periods which have been or are hereafter
exercised) upon all of the same terms and conditions as are set forth in the
Lease. Notwithstanding the provisions of this Section 3 to the contrary, if
Lender succeeds to the interest of Landlord under the Lease, Lender shall not
be:
(a) liable for any act or omission of any prior Landlord (including,
without limitation, the then defaulting Landlord) except for defaults which
continue after Lender succeeds to the interest of Landlord under the Lease and
except for defaults which arise after the date of such succession; or
(b) subject to any defense or offset which Tenant may have against
any prior Landlord (including, without limitation, the then defaulting Landlord)
that are not provided for in the Lease, except for defenses or offsets which
arise after the date Lender succeeds to the interest of Landlord, or
(c) bound by any payment of rent or additional rent which Tenant
might have paid for more than one month in advance of the due date under the
Lease to any prior Landlord (including, without limitation, the then defaulting
Landlord), except to the extent received by Lender or made in accordance with
the provisions of the Lease, or
(d) accountable for any monies deposited with any prior Landlord
(including security deposits), except to the extent such monies are actually
received by Lender.
4. As long as the Security Documents shall remain in effect, Tenant
shall not seek to terminate the Lease by reason of any act or omission of
Landlord (except pursuant to a provision in the Lease which gives Tenant an
express right to terminate the Lease) until Tenant shall have given written
notice of such act or omission to Lender and, if Lender shall have notified
Tenant within ten (10) business days following receipt of such notice of its
intention to remedy such act or omission, until a reasonable period of time (not
to exceed ten (10) days for
E-2
monetary defaults and not to exceed thirty (30) days for non-monetary defaults
unless, for the non-monetary defaults, more than thirty (30) days would be
required, using commercially reasonable and diligent efforts, to remedy such act
or omission, in which case such time period shall be extended for such
additional time as shall be required, using commercially reasonable and diligent
efforts, to remedy such act or omission, not to exceed an aggregate of ninety
(90) days) shall have elapsed following the giving of such notice, during which
period of time Lender shall have the right, but not the obligation, to remedy
such act or omission.
5. Any notice, election, communication, request or other document or
demand required or permitted under this Agreement shall be in writing and shall
be deemed delivered on the earlier to occur of (a) receipt or (b) the date of
delivery, refusal or nondelivery indicated on the return receipt, if deposited
in a United States Postal Service Depository, postage prepaid, sent certified or
registered mail, return receipt requested, or if sent via a recognized
commercial overnight courier service providing for a receipt, addressed to
Tenant or Lender, as the case may be, at the following addresses:
If to Tenant:
with a copy to:
with a copy to:
If to Lender:
with a copy to:
E-3
6. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
7. If any provision of this Agreement is held to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
deemed modified to the extent necessary to be enforceable, or if such
modification is not practicable, such provision shall be deemed deleted from
this Agreement, and the other provisions of this Agreement shall remain in full
force and effect.
8. Neither this Agreement nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing executed by the party against which enforcement of the
termination, amendment, supplement, waiver or modification is sought.
9. As between Landlord and Tenant, nothing herein expands Tenant's
obligations or limits Tenant's rights under the Lease.
10. This Agreement shall be construed in accordance with the laws of
the State of New York.
11. Each person executing this Agreement on behalf of Lender and
Tenant represents that he or she is authorized by Lender and Tenant,
respectively, to do so and execution hereof is the binding act of Lender and
Tenant enforceable against Lender and Tenant.
12. This Agreement contains the entire agreement between the
parties, and any executory or oral agreement hereinbefore or hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part unless such agreement is made after the date hereof and is
in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
13. This Agreement may be executed in any number of counterparts,
each of which shall, when executed, be deemed to be an original and all of which
shall be deemed to be one and the same instrument. The transmission by
telecopier of a copy of the signature page from this Agreement executed by the
transmitting party, together with instructions that same may be attached to a
copy of this Agreement being held by the recipient of such transmission, shall
constitute execution and delivery of this Agreement by the transmitting party.
(Signature Page Attached Hereto)
____________________, Lender
E-4
By: __________________________________
Name:
Title:
__________________________, Tenant
By: __________________________________
Name:
Title:
CONSENTED TO:
______________________, Landlord
By: ____________________________
Name:
Title:
E-5
ACKNOWLEDGMENT
TO BE USED WITHIN THE STATE OF NEW YORK:
State of New York )
) :ss
County of )
On the ____ day of _____________ in the year 2___, 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
TO BE USED OUTSIDE OF THE STATE OF NEW YORK:
State of )
) :ss
County of )
On the ____ day of _____________ in the year 2___, 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, and that such individual made such appearance before the undersigned
in the [PLACE OF ACKNOWLEDGMENT].
____________________________________________
Notary Public
E-6
EXHIBIT A
[Description of Property]
EXHIBIT F
SUBORDINATION, NON-DISTURBANCE, RECOGNITION
AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance, Recognition and Attornment
Agreement (this "Agreement") is dated as of the _____ day of __________, 2___,
between _____________________, a ____________________, with an address at
_______________________________________ ("Ground Lessor"), and
________________________, a ___________________ with an address at
__________________ ("Tenant").
RECITALS
A. Ground Lessor is (i) the fee owner of certain real property
located in the Borough of Manhattan, City, County and State of New York, and
more particularly described in Exhibit A attached hereto and made a part hereof
(the "Property"), and (ii) the lessor under that certain Ground Lease dated as
of December ____, 2001 between Ground Lessor and _______________________, as
lessee ("Landlord") demising the Property (such lease, as the same may be
amended or supplemented from time to time, the "Ground Lease"); recorded in
____________ [RECORDING INFORMATION TO BE ADDED].
B. Tenant is the tenant under a certain lease (the "Lease") dated
_____________, 2____ between Landlord, as landlord and Tenant, as tenant, of the
____ floor space (the "Premises") of the building located on the Property as
described in the Lease.
C. This Agreement is being entered into pursuant to the provisions
of the Lease.
AGREEMENT
For mutual consideration, including the mutual covenants and
agreements set forth below, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Subject to the terms, covenants and conditions of this Agreement,
the Lease is and shall be subject and subordinate to the Ground Lease and to any
renewals, amendments, modification, supplements, replacements and extensions of
the Ground Lease. Said subordination shall have the same force and effect as if
the Ground Lease and such renewals, modifications, consolidations, replacements
and extensions thereof had been executed, acknowledged, delivered and recorded
prior to the Lease and/or any amendments, modifications, renewals or extensions
thereof.
E-7
2. Ground Lessor hereby consents to the Lease and agrees that if
Ground Lessor exercises any of its rights under the Ground Lease, including an
entry by Ground Lessor pursuant to the Ground Lease or termination of the Ground
Lease, Ground Lessor shall not join Tenant or any party claiming through or
under Tenant, as a party defendant in any action to enforce or terminate the
Ground Lease, unless such joinder shall be required by law and, subject to the
terms of the Lease, shall not terminate the Lease nor disturb Tenant's right of
quiet possession of the Premises and shall recognize Tenant as its tenant under
the terms of the Lease so long as pursuant to the then existing provisions
thereof the Lease is in full force and effect and Tenant is not in default
beyond any applicable notice and grace period of any term, covenant or condition
of the Lease.
3. Tenant agrees that, in the event of a termination of the Ground
Lease by Ground Lessor or any other succession of Ground Lessor to the interest
of Landlord under the Lease, Tenant will attorn to and recognize Ground Lessor
as its landlord under the Lease for the remainder of the term of the Lease
(including all extension periods which have been or are hereafter exercised)
upon all of the same terms and conditions as are set forth in the Lease.
Notwithstanding the provisions of this Section 3 to the contrary, if Ground
Lessor succeeds to the interest of Landlord under the Lease, Ground Lessor shall
not be:
(a) liable for any act or omission of any prior Landlord (including,
without limitation, the then defaulting Landlord) except for defaults which
continue after Ground Lessor succeeds to the interest of Landlord under the
Lease and except for defaults which arise after the date of such succession; or
(b) subject to any defense or offset which Tenant may have against
any prior Landlord (including, without limitation, the then defaulting Landlord)
that are not provided for in the Lease, except for defenses or offsets which
arise after the date Ground Lessor succeeds to the interest of Landlord, or
(c) bound by any payment of rent or additional rent which Tenant
might have paid for more than one month in advance of the due date under the
Lease to any prior Landlord (including, without limitation, the then defaulting
Landlord), except to the extent received by Ground Lessor or made in accordance
with the provisions of the Lease, or
(d) accountable for any monies deposited with any prior Landlord
(including security deposits), except to the extent such monies are actually
received by Ground Lessor.
4. As long as the Ground Lease shall remain in effect, Tenant shall
not seek to terminate the Lease by reason of any act or omission of Landlord
(except pursuant to an express right to terminate the Lease) until Tenant shall
have given written notice of such act or omission to Ground Lessor and, if
Ground Lessor shall have notified Tenant within ten (10) business days following
receipt of such notice of its intention to remedy such act or omission, until a
reasonable period of time (not to exceed ten (10) days for monetary defaults and
not to exceed thirty (30)
F-8
days for non-monetary defaults unless, for the non-monetary defaults, more than
thirty (30) days would be required, using commercially reasonable and diligent
efforts, to remedy such act or omission, in which case such time period shall be
extended for such additional time as shall be required, using commercially
reasonable and diligent efforts, to remedy such act or omission, not to exceed
an aggregate of ninety (90) days) shall have elapsed following the giving of
such notice, during which period of time Ground Lessor shall have the right, but
not the obligation, to remedy such act or omission.
5. Any notice, election, communication, request or other document or
demand required or permitted under this Agreement shall be in writing and shall
be deemed delivered on the earlier to occur of (a) receipt or (b) the date of
delivery, refusal or nondelivery indicated on the return receipt, if deposited
in a United States Postal Service Depository, postage prepaid, sent certified or
registered mail, return receipt requested, or if sent via a recognized
commercial overnight courier service providing for a receipt, addressed to
Tenant or Ground Lessor, as the case may be, at the following addresses:
If to Tenant:
with a copy to:
If to Ground Lessor:
with a copy to:
6. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
7. If any provision of this Agreement is held to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
deemed modified to the extent necessary
F-9
to be enforceable, or if such modification is not practicable, such provision
shall be deemed deleted from this Agreement, and the other provisions of this
Agreement shall remain in full force and effect.
8. Neither this Agreement nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing executed by the party against which enforcement of the
termination, amendment, supplement, waiver or modification is sought.
9. As between Landlord and Tenant, nothing herein expands Tenant's
obligations or limits Tenant's rights under the Lease.
10. This Agreement shall be construed in accordance with the laws of
the State of New York.
11. Each person executing this Agreement on behalf of Ground Lessor
and Tenant represents that he or she is authorized by Ground Lessor and Tenant,
respectively, to do so and execution hereof is the binding act of Ground Lessor
and Tenant enforceable against Ground Lessor and Tenant.
12. This Agreement contains the entire agreement between the
parties, and any executory or oral agreement hereinbefore or hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part unless such agreement is made after the date hereof and is
in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
13. This Agreement may be executed in any number of counterparts,
each of which shall, when executed, be deemed to be an original and all of which
shall be deemed to be one and the same instrument. The transmission by
telecopier of a copy of the signature page from this Agreement executed by the
transmitting party, together with instructions that same may be attached to a
copy of this Agreement being held by the recipient of such transmission, shall
constitute execution and delivery of this Agreement by the transmitting party.
(Signature Page Attached Hereto)
_________________________, Ground Lessor
By: _____________________
Name:
Title:
________________________________, Tenant
F-10
By: _____________________
Name:
Title:
CONSENTED TO:
______________________, Landlord
By: ____________________________
Name:
Title:
F-11
ACKNOWLEDGMENT
TO BE USED WITHIN THE STATE OF NEW YORK:
State of New York )
) :ss
County of )
On the ____ day of _____________ in the year 2___, 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
TO BE USED OUTSIDE OF THE STATE OF NEW YORK:
State of )
) :ss
County of )
On the ____ day of _____________ in the year 2___, 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, and that such individual made such appearance before the undersigned
in the [PLACE OF ACKNOWLEDGMENT].
____________________________________________
Notary Public
F-12
EXHIBIT A
[Description of Property]
F-13
EXHIBIT G
EXCLUSIVE USE RIGHTS OF CERTAIN TENANTS
[To Be Completed, if applicable, upon Lease execution]
G-1
EXHIBIT H
HVAC SPECIFICATIONS
HVAC systems will maintain the following conditions:
OUTDOOR CONDITIONS
SUMMER WINTER
91(degree)F db/76(degree)F wb 5(degree)F db with a 15 mph wind
INDOOR CONDITIONS -
Occupied Office Areas: SUMMER WINTER
75(degree)F db/50% + 5% RH 72(degree)F db/with
humidity control
VENTILATION
Outside air ventilation rates for occupied areas will comply with ASHRAE
(American Society for Heating Refrigeration and Air Conditioning Energy) 62/89
and will be capable of maintaining 20 cfm per occupant. The outside air to each
floor will be varied using CO(2) sensors.
X-0
XXXXXXX X
XXXXXXXX XXXXXXXXX
X-0
EXHIBIT J
CLEANING SPECIFICATIONS
I NIGHTLY SERVICES
A. PUBLIC AREAS
1. Maintain public area walls in clean condition. Public areas
shall also include elevator lobbies on multiple tenant floors;
2. Vacuum clean all carpets in public areas. If flooring, sweep
floors with treated mop to maintain in clean condition
throughout the public areas;
3. Inspect and maintain cleanliness of fire hoses, extinguishers
and other similar equipment; and
4. Remove finger marks from all doors and elevator cabs.
B. TENANT OFFICE AREAS
1. Sweep all uncarpeted floors, using chemical treated dust mop
to prevent dust dispersion;
2. Carpet sweep carpeted areas and rugs four (4) nights each week
and vacuum once each week, moving light furniture other than
desks, file cabinets, etc.;
3. Empty and clean all ashtrays and screen all sand urns;
4. Hand dust and wipe clean with a treated cloth, mitt or duster,
all furniture, file cabinets, desk lamps, window xxxxx and
convector covers;
5. Move and dust under all desk equipment and phones, replacing
and dusting said equipment with approved anti-bacterial cloth;
6. Scour and wash clean all water coolers and fountains;
7. Clean all glass furniture tops;
8. Empty and clean all waste basket and disposal receptacles, and
remove waste to designated areas of building. Plastic bag
liners replaced as required at no additional cost to Tenant.
J-1
9. Dust all chair rails, trim etc., in normal reach on a weekly
basis.
C. LAVATORIES
1. Scour, wash and disinfect all basins, bowls and urinals with
approved germicidal detergent solution;
2. Wash and disinfect both sides of all toilet seats with
approved germicidal detergent solution;
3. Wash and polish with a non-acid polish all mirrors, pewter
shelves, bridgework and enamel surfaces etc., including
flushmeters, piping and toilet seat hinges;
4. Hand dust and wash all partitions, dispensers and receptacles;
5. Sweep and wash all lavatory flooring with an approved
disinfectant;
6. Empty and clean all paper towels, sanitary disposal
receptacles, transporting waste to the designated location;
7. Fill all toilet holders, paper towel dispensers, sanitary
napkin, soap dispensers and sanitary toilet seat covers; and
8. Remove graffiti.
II. WEEKLY SERVICES
1. Hand dust all louvers and ventilating louvers in Premises; and
2. Remove all finger marks from all painted surfaces near light
switches, entrance doors, and the like in Premises.
Tenant Office Area:
1. Dust Venetian blinds; and
2. Dust surfaces not reached in nightly cleaning.
MONTHLY OR QUARTERLY CLEANING (AS NOTED BELOW)
A. PUBLIC AREAS
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1. Wash and wax all floors in public corridors. Public corridors
shall also include elevator lobbies on multiple-tenant floor
(monthly)
B. TENANT OFFICE AREA
1. Remove all smudges, fingermarks, and other marks from painted
surfaces on doors, and areas around electrical light walls
switches and doorjambs (monthly);
2. Hand dust all pictures, frames, charts, graphs, and similar
wall hangings not reached in nightly or weekly cleaning
(quarterly); and
3. Dust air-conditioning louvers, grills, etc., not reached in
nightly cleaning (quarterly).
C. LAVATORIES
1. Machine scrub flooring (monthly);
2. Hand dust, clean and wash all tile walls and apply
disinfecting solutions (monthly);
3. High dust lights, walls, grilles, etc.; (annually) and
4. Dust all lighting fixtures (quarterly).
IV PEST CONTROL
1. Pest control treatment in all public areas, lavatories on
multi-tenant floors, and service sink rooms will be done not
less than once a month or more frequently, if reasonably
necessary in order to maintain a sanitary condition. All
service will be rendered by operators licensed by Board of
Health of the City of New York.
V. WINDOW CLEANING
1. Wash all exterior windows on the outside and inside from the
main floor to roof three (3) times per year. Landlord shall
submit a report or notice from its window cleaning contractor
confirming that such window washing has been completed.
GENERAL
o Dust closets, shelving and coat racks (quarterly),
J-3
o Dust exterior of lighting fixtures (annually).
o Police all public stairwells throughout the entire building and keep
in clean condition, mop as necessary.
LAVATORIES/NIGHTLY
o Report all mechanical deficiencies, i.e., dripping faucets, etc., to
building manager.
BUILDING SERVICE AREAS
o Keep janitor closets and adjacent areas in the Premises in a clean
and orderly condition.
DUTIES OF DAY MATRON IN BASE BUILDING AND CORE LAVATORIES
o During Business Hours, police all core lavatories once each day.
o Fill toilet tissue dispensers with toilet issue.
o Fill paper towel dispenser with paper towels.
o Fill sanitary napkins dispensers with sanitary napkins.
o Fill sanitary toilet seat cover dispensers with paper covers.
TIMING AND FREQUENCY OF SERVICES
On those days in which cleaning service is provided, nightly
cleaning services in the Premises will be performed only between the
hours of 6pm and 6am (except with respect to services required to be
performed at other times).
SUPERVISION
A competent supervisor will be assigned to the Premises during days,
nights and weekends as required. The night supervisor shall be
required to verify that all required work has been completed, all
lights within the Premises are turned off and all doors are locked.
J-4
EXHIBIT K
FORM OF GUARANTY
THIS GUARANTY ("GUARANTY") is made and entered into as of the ______
day of _________, 2__, by THE NEW YORK TIMES COMPANY, a New York corporation,
whose address is ______________, Attention: ____________ ("GUARANTOR") in favor
of [FC UNIT OWNER], a ______________, whose address is Xxx XxxxxXxxx Xxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: General Counsel ("LANDLORD").
WITNESSETH:
WHEREAS:
A. Concurrently with execution and delivery of this Guaranty, Landlord and
________________________________________ ("TENANT") have entered into a Lease
(the "LEASE") pursuant to which Landlord has agreed to lease to Tenant, and
Tenant has agreed to lease from Landlord, the "PREMISES", as such term is
defined in the Lease.
B. Guarantor has an interest in Tenant and has agreed to guaranty the
"GUARANTEED OBLIGATIONS" as such term is hereinafter defined.
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Guarantor, Guarantor hereby agrees as follows (all capitalized
terms used herein without definition having the meanings ascribed to them in the
Lease):
1. (a) Guarantor, for itself, its successors and assigns, hereby
primarily, unconditionally, absolutely and irrevocably guarantees the full and
prompt payment of an amount equal to one years' Fixed Rent and any Enforcement
Costs (as hereinafter defined in Paragraph 19 hereof).
(b) Guarantor represents and warrants that, as of the date of this
Guaranty, Guarantor has a credit rating of "A-minus"(1) or better as determined
by the "Rating Agency" (as such term is defined in the Declaration).
2. Guarantor guarantees the Guaranteed Obligations regardless of any law,
statute, rule, regulation, decree or order now or hereafter in effect in any
jurisdiction affecting or purporting to affect in any manner any of the terms or
the rights or remedies of Landlord with
----------
(1) Substitute equivalent rating to "A-minus" if Rating Agency is no
longer Standard & Poors.
K-5
respect to the Guaranteed Obligations. The obligations and liabilities of
Guarantor hereunder shall be direct and primary and not indirect or secondary,
and shall be absolute, unconditional and irrevocable. Guarantor's obligations
hereunder shall not be deemed exonerated, discharged or satisfied, except as
provided in Section 16 hereof
3. If Guarantor fails to promptly pay the Guaranteed Obligations in
accordance with this Guaranty, Landlord shall, from time-to-time, and without
first attempting to require performance by Tenant, have the right to bring any
action to collect the Guaranteed Obligations. Guarantor shall indemnify and hold
Landlord free and harmless from and against any and all loss, damage, cost,
expense, injury, or liability Landlord may suffer or incur in connection with
the exercise of its rights under this Guaranty or the payment of the Guaranteed
Obligations.
4. All of the remedies set forth herein and/or provided for in the Lease
or at law or equity shall be equally available to Landlord and the choice of one
such alternative over another shall not be subject to question or challenge by
Guarantor or any other person, nor shall any such choice be asserted as a
defense, setoff, or failure to mitigate damages in any action, proceeding, or
counteraction by Landlord to recover or seeking any other remedy under this
Guaranty, nor shall such choice preclude Landlord from subsequently electing to
exercise a different remedy. The parties have agreed to the alternative remedies
provided herein in part because they recognize that the choice of remedies in
the event of a default hereunder will necessarily be and should properly be a
matter of good-faith business judgment, which the passage of time and events may
or may not prove to have been the best choice to maximize recovery by Landlord
at the lowest cost to Tenant and/or Guarantor. It is the intention of the
parties that such good-faith choice by Landlord be given conclusive effect
regardless of such subsequent developments.
5. Guarantor hereby waives (i) notice of acceptance of this Guaranty by
Landlord and any and all notices and demands of every kind which may be required
to be given by any statute, rule or law, (ii) any defense, right of set-off or
other claim which any Guarantor may have against Landlord, except for claims of
actual payment or actual performance (iii) presentment for payment, demand for
payment, notice of nonpayment or dishonor, protest and notice of protest,
diligence in collection and any and all formalities which otherwise might be
legally required to charge Guarantor with liability, and (iv) any failure by
Landlord to inform Guarantor of any facts Landlord may now or hereafter know
about Tenant or the terms of the Lease, it being understood and agreed that
Landlord has no duty so to inform and that Guarantor is fully responsible for
being and remaining informed by Tenant of all such circumstances bearing on the
risk of nonperformance of the Tenant's obligation under the Lease. Guarantor
agrees that any claims which Guarantor may have against Tenant must be brought
in a separate action, which action shall not be consolidated with any action
brought by Landlord, unless such consolidation is required by law. Landlord
shall have no obligation to disclose or discuss with Guarantor its assessment of
the financial condition of Tenant. Guarantor acknowledges that no
representations of any kind whatsoever have been made to it by Landlord. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon Landlord except as expressly set forth in a writing duly signed and
delivered on behalf of Landlord.
K-6
6. Guarantor further agrees that Guarantor's liability as guarantor shall
in nowise be impaired or affected by any extensions which may be made from time
to time, with or without the knowledge or consent of Guarantor, of the time for
performance by Tenant under the Lease or by any forbearance or delay in
enforcing same, or by way of waiver by Landlord under the Lease. Landlord's
failure or election not to pursue any other remedies it may have against Tenant,
Guarantor, or by virtue of any change or modification in the Lease or by the
acceptance by Landlord of any additional security or any increase, substitution
or change therein, or by the release by Landlord of any security or any
withdrawal thereof or decrease therein, or by the application of payments
received from any source to the payment of any obligation other than the
Guaranteed Obligations, even though Landlord might lawfully have elected to
apply such payments to any part or all of the Guaranteed Obligations, it being
the intent hereof that Guarantor shall remain liable as principal for payment of
the Guaranteed Obligations until the Guaranteed Obligations have been paid in
full and notwithstanding any act or thing which might otherwise operate as legal
or equitable discharge of a surety. Guarantor further understands and agrees
that Landlord may at any time enter into agreements with Tenant to amend and
modify the Lease and may waive or release any provision or provisions of the
Lease, and, with reference to such instruments, may make and enter into any such
amendments or agreements as the parties thereto may deem proper and desirable,
and may apply any monies received by Landlord, regardless of the purpose for
which the same was given to Landlord to cure any default or to apply on account
of the Guaranteed Obligations, in such order and priority as Landlord, in its
sole discretion, may require without in any manner impairing or affecting this
Guaranty or any of Landlord's rights hereunder or Guarantor's obligations
hereunder.
7. Guarantor hereby acknowledges having received, reviewed and understood
a true, correct and complete copy of the Lease. Guarantor acknowledges that this
Guaranty is in effect and binding without reference to whether this Guaranty is
signed by any other person or entity, that possession of this Guaranty by
Landlord shall be conclusive evidence of due delivery hereof by Guarantor and
acceptance hereof by Landlord, and that this Guaranty shall continue in full
force and effect as to the Guaranteed Obligations.
8. Guarantor hereby consents and agrees that, without any further notice
to, or consent or agreement of, Guarantor (a) Landlord make take, hold,
exchange, enforce, waive, surrender and/or release other guarantees, collateral
or security which further secure(s) payment and/or performance of this Guaranty
or the Lease, and (b) that any of the obligations, terms, covenants and
conditions contained in the Lease (including, but not limited to, Tenant's
obligations thereunder) may be renewed, altered, extended, changed, modified,
supplemented or released at Landlord's written direction, or with Landlord's
written consent, without in any manner affecting this Guaranty or releasing
Guarantor herefrom, and without the further consent of or notice to Guarantor,
and Guarantor shall continue to be liable hereunder to pay the Guaranteed
Obligations pursuant hereto notwithstanding any such renewal, alteration,
extension, change, modification, supplement or release, or the taking, holding,
exchanging, enforcing, waiving, surrender and/or release of such other
guarantees, collateral or security. Landlord may perfect or fail to perfect, or
to continue the perfection of, any lien or security interest without
K-7
notice to, consideration to or the consent of Guarantor, and without in any way
releasing, diminishing or affecting the absolute nature of Guarantor's
obligations and liabilities hereunder.
9. Guarantor hereby waives any and all legal requirements that Landlord,
or its successors or assigns, must institute any action or proceeding at law or
in equity, or obtain any judgment, or exhaust their rights, remedies and/or
recourses against Tenant or any other person or entity, or with respect to any
security for the obligations hereby guaranteed, as a condition precedent to
making any demand on, bringing an action against, or obtaining or enforcing any
judgment against, Guarantor upon this Guaranty, and/or that it join Tenant or
any other person or entity as a party to any such action. All remedies afforded
to Landlord, and its successors or assigns, by reason of this Guaranty, are
separate and cumulative remedies, and it is agreed that no one of such remedies,
whether or not exercised by Landlord, or its successors or assigns, shall be
deemed in exclusion of any of the other remedies available to Landlord or its
successors or assigns, at law, in equity, by statute, under contract, hereunder
or otherwise, and shall in no way limit or prejudice any such other remedies
which Landlord, or its successors or assigns, may have. Mere delay or failure to
act shall not preclude the exercise or enforcement of any rights and remedies
available to Landlord. Guarantor further waives any requirement that Landlord
demand or seek payment or performance by Tenant or by any other person or entity
of the amounts owing or the covenants to be performed under the Lease, whether
hereby guaranteed or not, as a condition precedent to bringing any action
against Guarantor upon this Guaranty, it being agreed that a failure to comply
with or perform the obligations, terms, covenants and conditions herein
guaranteed shall, without further act, make Guarantor liable as herein set
forth.
10. This Guaranty is an absolute, unconditional, present and continuing
guaranty of performance of the Guaranteed Obligations. Guarantor hereby
expressly waives all defenses of Tenant pertaining to the Guaranteed
Obligations, except for the defense of discharge by payment in full, and except
for such defenses as would constitute a defense to Tenant's obligation under the
Lease. Guarantor shall not be released (a) by any act, omission or thing which
might, but for this provision of this Guaranty, be deemed a legal or equitable
discharge of a surety or guarantor, (b) by any defense based upon any statute or
rule of law which provides that the obligations of a surety or guarantor must be
neither larger in amount nor in other respects more burdensome than those of a
principal, or (c) by reason of any waiver, extension, renewal, modification,
forbearance or delay by Landlord, or its successors or assigns, or its failure
to proceed promptly or otherwise, and Guarantor hereby expressly waives and
surrenders any defense to liability hereunder based upon the foregoing acts,
omissions, things, statutes, rules, waivers, extensions, modifications,
forbearances, delays, obligations, agreements, or any of them, except the
defense of payment in full. Guarantor also waives any defense arising by virtue
of any disability, insolvency, bankruptcy, defect in formation or continuation,
lack of authority or power, death, insanity, incompetence, liquidation or
dissolution of, or any cessation or limitation of liability from any cause
(other than full payment) of, Tenant, any member or agent thereof, or any other
surety, comaker, endorser or guarantor. No change in the ownership of Tenant or
in Tenant's members shall affect or change the terms of this Guaranty or in any
way change or reduce the liability of Guarantor hereunder. This Guaranty shall
continue to be effective or be reinstated (as the case may be) if at any time
payment of all or any part of any sum payable pursuant to the Lease or
K-8
hereunder is rescinded or otherwise required to be returned upon the insolvency,
bankruptcy, dissolution, liquidation, or reorganization of Tenant, or upon or as
a result of the appointment of a receiver, intervener, custodian or conservator
of or trustee or similar officer for, or any substantial part of its property,
or otherwise, all as though such payment had not been made, regardless of
whether the recipient thereof contested the order requiring the return of such
payment.
11. Guarantor hereby expressly agrees that the liabilities and obligations
of Guarantor under this Guaranty shall not in any way be impaired or otherwise
affected by the institution by or against Tenant or any other person or entity
of any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or any other similar proceedings for relief under any bankruptcy
law or similar law for the relief of debtors and that any discharge of any of
the obligations and/or liabilities hereby guaranteed pursuant to any such
bankruptcy or similar law or other law shall not diminish, discharge or
otherwise affect in any way the obligations of Guarantor under this Guaranty,
and that upon the institution of any of the above actions, such obligations
shall be enforceable against Guarantor.
12. In the event that Guarantor shall advance or become obligated to pay
any sums or incurs any costs or expenses hereunder, or in the event that for any
reason Tenant is now or shall hereafter become indebted or obligated to
Guarantor, the amount of such sum, costs, expenses and such indebtedness or
obligation shall at all times be subordinated as to lien, time of payment and in
all other respects to the amounts owing to Landlord hereunder. Notwithstanding
any payment or payments made, or costs or expenses incurred, by Guarantor
hereunder, Guarantor shall not be entitled to be subrogated to any of the rights
of Landlord against Tenant or any other guarantor or any collateral security or
guaranty held by Landlord for the payment of the guaranteed obligation, nor
shall Guarantor seek or be entitled to seek any contribution or reimbursement
from Tenant or any other guarantor in respect of payments made, or costs or
expenses incurred, by Guarantor hereunder unless and until the Guaranteed
Obligations and any Enforcement Costs shall have been paid in full. Except as
otherwise set forth herein, Guarantor shall have no right to participate in any
way in the right, title or interest of Landlord in the Premises, or to receive
payments from Tenant upon any indebtedness or obligation, notwithstanding any
payments made, or costs or expenses incurred, by Guarantor hereunder, all rights
of reimbursement, indemnification, subrogation and participation being hereby
expressly waived and released with respect to any such payments, costs and
expenses. Guarantor agrees that, following any default or event of default under
the Lease, and until the Guaranteed Obligations shall have been paid in full,
Guarantor will not accept any payment or satisfaction of any kind of any
indebtedness or obligation of Tenant to Guarantor. Further, as long as Guarantor
remains liable hereunder, Guarantor agrees that, if, following any default or
event of default under the Lease, Guarantor should receive any payment,
satisfaction or security for any indebtedness or obligation of Tenant to
Guarantor, the same shall be delivered to Landlord in the form received,
endorsed or assigned as may be appropriate, for application on account of or as
security for the Guaranteed Obligations and, until so delivered, shall be held
in trust for Landlord as security for said Guaranteed Obligations. In addition,
at any time, in the event of any receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization or arrangement with
creditors (whether or not pursuant to bankruptcy laws), sale of all or
substantially all of the assets, dissolution,
K-9
liquidation or any other marshaling of the assets and liabilities of Tenant,
Landlord shall be entitled to performance in full of the obligations hereby
guaranteed prior to the payment of all or any part of any indebtedness of Tenant
to Guarantor, and Guarantor will, at the request of Landlord, file any claim,
proof of claim or other instrument of similar character necessary to enforce the
obligations of Tenant in respect of such indebtedness and hereby assigns to
Landlord, and will hold in trust for Landlord, any and all monies, dividends or
other assets received in any such proceeding on account of such obligations,
unless and until the Guaranteed Obligations shall be paid in full. In the event
Guarantor fails to pay the Guaranteed Obligations in accordance with this
Guaranty, it shall pay and deliver said monies, dividends or other assets to
Landlord.
13. Guarantor hereby warrants and represents unto Landlord that
(a) there are no actions, suits or proceedings pending or, to the
knowledge of Guarantor, threatened against or affecting Guarantor, which will
have a material adverse impact upon Guarantor's ability to perform its
obligations hereunder, or involving the validity or enforceability of this
Guaranty, at law or in equity; and Guarantor is not in default under any order,
writ, injunction, decree or demand of any court or any administrative body
having jurisdiction over Guarantor;
(b) any and all balance sheets, net worth statements, income and
expense statements, cash flow statements and other financial statements of, and
other financial statements and data relating to, Guarantor previously or
hereafter delivered to Landlord fairly and accurately present, or will fairly
and accurately present, the financial condition of Guarantor as of the dates
thereof, since the dates of those most recently delivered, there has been no
material adverse change in the financial condition of Guarantor; Guarantor has
disclosed all events, conditions, and facts known to Guarantor which are more
likely than not to have a material adverse effect on the financial condition of
Guarantor; and neither this Guaranty nor any document, financial statement,
financial or credit information, certificate or statement relating to Guarantor
and referred to herein, or furnished to Landlord by Guarantor contains, or will
contain, any untrue statement of a material fact or omits, or will omit, a
material fact:
(c) Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York, and has all power,
authority, permits, consents, authorizations and licenses necessary to carry on
its business, and to execute, deliver and perform this Guaranty and any other
documents or instruments in connection therewith which it is required to
execute; all resolutions of the board of directors of Guarantor necessary to
authorize the execution, delivery and performance of this Guaranty and such
other documents or instruments have been duly adopted and are in full force and
effect; and this Guaranty and such other documents or instruments have been duly
authorized, executed and delivered by and on behalf of Guarantor so as to
constitute this Guaranty and such other documents or instruments the valid and
binding obligation of Guarantor, enforceable in accordance with their terms; and
(d) The execution, delivery, and performance by Guarantor of this
Guaranty does not and will not contravene or conflict with (i) any law, order,
rule, regulation, writ,
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injunction or decree now in effect of any government, governmental
instrumentality court having jurisdiction over Guarantor, or (ii) any
contractual restriction binding on or affecting Guarantor or Guarantor's
property or assets which may adversely affect Guarantor's ability to fulfill its
obligations under this Guaranty.
14. The validity, construction and enforceability of this Guaranty shall
be governed by the internal laws of the State of New York, without giving effect
to conflict of laws principles thereof. Whenever possible, each provision of
this Guaranty and any other statement, instrument or transaction contemplated
hereby or relating hereto shall be interpreted in such manner as to be effective
and valid under such applicable law, but, if any provision of this Guaranty or
any other statement, instrument or transaction contemplated hereby or relating
hereto or any right or remedy hereby guaranteed or provided shall be held to be
unenforceable, prohibited or invalid under applicable law as to any person,
party or entity or under any circumstances, for any reason, such provision,
right or remedy shall be ineffective only to the extent of such
unenforceability, prohibition or invalidity, and only with respect to such
person, party, entity or circumstances, without invalidating or limiting or
preventing the enforcement of the remainder of such provision, right or remedy,
or the remaining provisions of this Guaranty, or any other right, remedy,
statement, instrument or transaction contemplated hereby or relating hereto, as
to any other person, party or entity or any other circumstances.
15. Notwithstanding any other provision or provisions herein contained, no
provision of this Guaranty shall require or permit the collection from Guarantor
of interest in excess of the maximum rate or amount, if any, which Guarantor may
be required or permitted to pay by any applicable law.
16. This Guaranty shall remain in full force and effect until payment of
the Guaranteed Obligations in full, and thereafter, this Guaranty shall be
discharged, null, void and of no further force and effect. Upon request by
Guarantor, Landlord will deliver to Guarantor written confirmation of the
discharge of the obligations and liabilities of Guarantor hereunder, and
Landlord will return to Guarantor the original counterpart of this Guaranty.
This instrument shall inure to the benefit of Landlord and its successors,
assigns, and shall bind Guarantor and Guarantor's successors and assigns. The
obligations of Guarantor under this Guaranty shall be enforceable in all events
against Guarantor, its successors and assigns, and each of them.
17. This Guaranty may be waived, modified, amended, terminated or
discharged only explicitly in a writing signed by Landlord and Guarantor. A
waiver so signed shall be effective only in the specific instance and for the
specific purpose given.
18. Any notice, demand or request by Landlord to Guarantor or from
Guarantor to Landlord shall be in writing and shall be deemed to have been duly
given or made if either delivered personally or if mailed by certified or
registered mail addressed to the address set forth below (or at the correct
address of any assignee of Landlord), except that mailed written notices shall
not be deemed given or served until three (3) days after the date of mailing
thereof
K-11
(a) If to Guarantor:
The New York Times Company
[________________________
______________________]
Attention:
with a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(b) If to Landlord:
[_________________________]
Xxx XxxxxXxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
19. If. (i) this Guaranty is placed in the hands of an attorney for
collection or is collected through any legal proceeding; (ii) an attorney is
retained to represent Landlord in any bankruptcy, reorganization, receivership,
or other proceedings affecting creditors' rights and involving a claim under
this Guaranty; (iii) an attorney is retained to provide advice or other
representation with respect to this Guaranty; or (iv) an attorney is retained to
represent Landlord in any proceedings whatsoever in connection with this
Guaranty, then each Guarantor shall pay to Landlord upon demand all attorney's
fees, costs and expenses, including, without limitation, court costs, filing
fees, recording costs, expenses of foreclosure, title insurance premiums, survey
costs, minutes of foreclosure, and all other costs and expenses incurred in
connection therewith (all of which are referred to herein as "ENFORCEMENT
COSTS"), in addition to all other amounts due hereunder, regardless of whether
all or a portion of such Enforcement Costs are incurred in a single proceeding
brought to enforce this Guaranty.
20. Guarantor hereby irrevocably submits to personal jurisdiction in the
state of New York, City and County of New York for the enforcement of this
Guaranty and waives any and all personal rights to object to such jurisdiction
for the purposes of litigation to enforce this
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Guaranty. Guarantor hereby consents to the jurisdiction of either any court in
such city, county and state or (in a case involving diversity of citizenship)
the United States District Court located there, in any action, suit, or
proceeding which Landlord may at any time wish to file in connection with this
guaranty or any related matter. Guarantor hereby agrees that an action, suit, or
proceeding to enforce this Guaranty may be brought in any state or federal court
therein located and hereby waives any objection which such guarantor may have to
the laying of the venue of any such action, suit, or proceeding in any such
court; provided, however, that the provisions of this paragraph shall not be
deemed to preclude Landlord from filing any such action, suit, or proceeding in
any other appropriate forum.
21. This Guaranty may be executed in any number of duplicate originals and
each such duplicate original shall be deemed to constitute but one and the same
instrument. Any signature page of this Guaranty may be detached from any
duplicate original of this Guaranty without impairing the legal effect of any
signatures thereon and may be attached to another duplicate original of this
Guaranty identical in form hereto but having attached to it one or more
additional signature pages.
22. Guarantor and Landlord hereby waive any right to a trial by jury in
any action or proceeding to enforce or defend any right under this Guaranty or
relating thereto or arising from the relationship which is the subject of this
Guaranty and agree that any such action or proceeding shall be tried before a
court and not before a jury.
Dated:____________________
THE NEW YORK TIMES COMPANY
By: ____________________________________
Name:
Title:
EXHIBIT L
FORM OF CONFIDENTIALITY AGREEMENT
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement") is made and entered into
as of the ___ day of _____________, 2___, by __________________________(the
"Landlord") and __________ ("Tenant").
RECITALS:
1. Landlord and Tenant are parties to a lease agreement dated as of
_____________________, 2___ (the "Lease"); and
K-13
2. Pursuant to Section 3.03(d) of the Lease, Tenant's Representative has
the right to examine Landlord's books and records relevant to any Landlord's
Statement delivered to Tenant (hereinafter collectively called the "Confidential
Information"); and
3. Tenant is exercising its rights to examine the Confidential
Information in connection with its review of the Landlord's Statement given to
Tenant on ____________, 2___.
NOW, THEREFORE, in consideration of the mutual premises herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, it is hereby agreed as follows:
(1) DEFINITIONS. Capitalized terms used in this Agreement and not
otherwise defined shall have the meanings set forth in the
Lease.
(2) OBLIGATIONS OF TENANT. Tenant acknowledges and agrees that the
Confidential Information is proprietary to Landlord. In
consideration of providing Tenant with access to the
Confidential Information, Tenant agrees to treat the
Confidential Information in confidence by complying (and
causing compliance therewith by Tenant's attorneys, employees,
agents and other representatives) with the following:
(a) To use the Confidential Information for the sole purpose
of its examination of Landlord's Statement as provided
in Section 3.03(d) of the Lease;
(b) Not to disclose the Confidential Information to persons
who are not in the employ of Tenant, other than its
accountants, attorneys and other representatives as
necessary to accomplish the purpose described in
subsection (a) above; and
(c) To limit dissemination of the Confidential Information
to only those employees who have a need to know to
perform the tasks set forth in subsection (a) above.
(3) EXCEPTION TO RESTRICTIONS. The obligations of Tenant provided
for in Paragraph 2 above shall not apply to any Confidential
Information:
(a) which was known to the public at the time of its receipt
by Tenant; or
(b) which Tenant lawfully obtains from a third party; or
L-14
(c) which is not under an obligation of secrecy or
confidentiality to Landlord; or
(d) with respect to which Tenant is compelled by law to
disclose.
5. MISCELLANEOUS.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
(b) If any provision of this Agreement is held to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
deemed modified to the extent necessary to be enforceable, or if such
modification is not practicable, such provision shall be deemed deleted from
this Agreement, and the other provisions of this Agreement shall remain in full
force and effect.
(c) Neither this Agreement nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing executed by the party against which enforcement of the
termination, amendment, supplement, waiver or modification is sought.
(d) As between Landlord and Tenant, nothing herein expands Tenant's
obligations or limits Tenant's rights under the Lease.
(e) This Agreement shall be construed in accordance with the laws of
the State of New York.
(f) Each person executing this Agreement on behalf of Landlord and
Tenant represents that he or she is authorized by Landlord and Tenant,
respectively, to do so and execution hereof is the binding act of Landlord and
Tenant enforceable against Landlord and Tenant.
(g) This Agreement contains the entire agreement between the
parties, and any executory or oral agreement hereinbefore or hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part unless such agreement is made after the date hereof and is
in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
(h) This Agreement may be executed in any number of counterparts,
each of which shall, when executed, be deemed to be an original and all of which
shall be deemed to be one and the same instrument. The transmission by
telecopier of a copy of the signature page from this Agreement executed by the
transmitting party, together with instructions that same may be
L-15
attached to a copy of this Agreement being held by the recipient of such
transmission, shall constitute execution and delivery of this Agreement by the
transmitting party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
________________________________, Tenant
By: ____________________________________
Name:
Title:
______________________________, Landlord
By: ____________________________________
Name:
-------------------------------
Title:
------------------------------
L-16
EXHIBIT M
(1) ELECTRICAL - The entire electrical distribution system on the floor of the
Premises from the main disconnect switch at the switchboard serving the
floor of the Premises;
(2) HVAC. - (w) The air handling unit located on the floor of the Premises and
its attendant devices; (x) the ceiling ductwork distribution system on the
floor of the Premises; (y) the chilled water coil system located on the
floor of the Premises which services the floor's air handler; and (z) the
entire steam distribution system on the floor of the Premises from the
connection with the Building's vertical steam conduits and risers;
(3) WATER/PLUMBING - The entire branch plumbing and sanitary distribution
systems on the floor of the Premises from the connection with the
Building's vertical water and waste conduits and risers to the public
bathrooms and public drinking fountains located on the floor of the
Premises;
(4) FIRE SAFETY - (x) The entire sprinklering system located within the
ceiling and walls of the floor of the Premises from the connection with
the Building's vertical sprinklering conduits and risers; and (y)
individual fire alarm devices located on the floor of the Premises.
M-1
EXHIBIT R
FORM OF NOTICE OF DEFAULT (ss. 14.2)
42ND ST. DEVELOPMENT PROJECT, INC.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
as of ____, 200_
VIA HAND
THE NEW YORK TIMES BUILDING LLC
c/o The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
c/o Forest City Xxxxxx
One Metro Tech Center, North
Brooklyn, New York 11201
Attention: General Counsel
INGREDUS Site 8 South LLC
c/o Clarion Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxxxxx
SITE 8 SOUTH -- NOTICE OF DEFAULT
Ladies and Gentlemen:
Reference is made to that certain Agreement of Lease (as it
hereinbefore may have been and hereafter may be amended, the "LEASE"), dated as
of December ___, 2001, by and between 42nd St. Development Project, Inc.
("LANDLORD") and The New York Times Building LLC ("TENANT"). Capitalized terms
used herein but not defined herein shall have the meanings set forth in the
Lease.
Pursuant to Section 14.2 of the Lease, Tenant is hereby given notice
that it is in default under Section ___ of the Lease for [STATE DEFAULT]. Under
the Lease, Tenant has [STATE PERIOD] in which to cure this Default.
Nothing in this letter shall be construed to be a waiver of any
right or remedy available to Landlord under the Lease, at law or in equity, all
of which are hereby expressly reserved.
Yours Truly,
42ND ST. DEVELOPMENT PROJECT, INC.
By: ____________________________________
Name:
Title:
cc: The City of New York
Director of Real Estate -- The New York Times Company
Xxxxxx X. Xxxxxxx, Esq. -- Xxxxxxx Berlin Shereff Xxxxxxxx LLP
Xxxxx X. Xxxx, Esq. -- Xxxxxx Xxxx Xxxxxx LLP
Xxxxxxxx X. Xxxxxxx, Esq. -- Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxxxx, Esq. -- Pillsbury Winthrop LLP
Xxxxxx Xxxxxxxxxx - INGREDUS Site 8 South LLC
R-2
EXHIBIT S
FORM OF SECOND NOTICE OF DEFAULT (ss. 14.2)
42ND ST. DEVELOPMENT PROJECT, INC.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
as of ____, 200_
VIA HAND
THE NEW YORK TIMES BUILDING LLC
c/o The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
c/o Forest City Xxxxxx
One Metro Tech Center, North
Brooklyn, New York 11201
Attention: General Counsel
INGREDUS Site 8 South LLC
c/o Clarion Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxxxxx
SITE 8 SOUTH -- SECOND NOTICE OF DEFAULT
Ladies and Gentlemen:
Reference is made to that certain Agreement of Lease (as it
hereinbefore may have been and hereafter may be amended, the "LEASE"), dated as
of December ___, 2001, by and between 42nd St. Development Project, Inc.
("LANDLORD") and The New York Times Building LLC ("TENANT"). Capitalized terms
used herein but not defined herein shall have the meanings set forth in the
Lease.
Pursuant to Section 14.2 of the Lease, Tenant is hereby given notice
that Tenant's Default under Section ___ of the Lease for [STATE DEFAULT] has not
been cured within the cure period for such Default under the Lease. If Tenant
has not cured the aforesaid Default within 5 Business Days of [DATE OF THIS
NOTICE IF SENT ON BUSINESS DAY OR DATE OF NEXT SUCCEEDING BUSINESS DAY IF DATE
OF THIS NOTICE IS NOT A BUSINESS DAY], an Event of Default shall be deemed to
have occurred.
Nothing in this letter shall be construed to be a waiver of any
right or remedy available to Landlord under the Lease, at law or in equity, all
of which are hereby expressly reserved.
Yours Truly,
42ND ST. DEVELOPMENT PROJECT. [NC.
By: ____________________________________
Name:
Title:
cc: The City of New York
Director of Real Estate -- The New York Times Company
Xxxxxx X. Xxxxxxx, Esq. -- Xxxxxxx Berlin Shereff Xxxxxxxx LLP
Xxxxx X. Xxxx, Esq. -- Xxxxxx Xxxx Xxxxxx LLP
Xxxxxxxx X. Xxxxxxx, Esq. -- Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxxxx, Esq. -- Pillsbury Winthrop LLP
Xxxxxx Xxxxxxxxxx - INGREDUS Site 8 South LLC
S-2
EXHIBIT T
NON-DISCRIMINATION AND AFFIRMATIVE ACTION (ss. 29.1)
42ND ST. DEVELOPMENT PROJECT, INC. AND EMPIRE STATE DEVELOPMENT
NON-DISCRIMINATION AND AFFIRMATIVE ACTION CONSTRUCTION CONTRACT PROVISIONS
I. POLICY
It is the policy of the State of New York, Empire State Development ("ESD") and
42nd St. Development Project, Inc., ("42DP") to comply with all federal, State
and local law, policy, orders, rules and regulations which prohibit unlawful
discrimination because of race, creed, color, national origin, sex, sexual
orientation, age, disability or marital status, and to take affirmative action
to ensure that Minority and Women-owned Business Enterprises (M/WBEs), Minority
Group Members and women share in the economic opportunities generated by ESD's
and/or its subsidiaries' participation in projects or initiatives, and/or the
use of ESD/42DP funds.
1) The Contracting Party represents that its equal employment opportunity
policy statement incorporates, at a minimum, the policies and practices
set forth below:
(a) Contracting Party shall (i) not discriminate against employees or
applicants for employment because of race, creed, color, national
origin, sex, sexual orientation, age, disability or marital status,
(ii) undertake or continue existing programs of affirmative action
to insure that Minority Group Members and women are afforded equal
employment opportunities without discrimination, and (iii) make and
document its conscientious and active efforts to employ and utilize
Minority Group Members and women in its workforce on Contracts. Such
action shall be taken with reference to, but not limited to,
recruitment, employment, job assignment, promotion, upgrading,
demotion, transfer, layoff or termination, rates of pay or other
forms of compensation, and selection for training or retraining,
including apprenticeship and on-the-job training.
(b) At the request of the AAO, the Contracting Party shall request each
employment agency, labor union, or authorized representative of
workers with whom it has a collective bargaining or other agreement
or understanding, to furnish a written statement that such
employment agency, labor union, or representative does not
unlawfully discriminate, and that such union or representative will
affirmatively cooperate in the implementation of the Contracting
Party's obligations herein.
(2) Commencing not more than 30 days after the later of (i) execution of the
Contract, or (ii) start of construction, the Contracting Party shall
submit to the AAO a Monthly Employment Utilization Report (Schedule A-1)
of the workforce actually utilized on the Contract, itemized by ethnic
background, gender, and Federal Occupational Categories or other
appropriate categories specified by the AAO.
(3) The Contracting Party shall also include with the first Monthly Employment
Utilization Report and as part of the documentation required for final
payment, such data describing: a) the total number of company employees at
commencement of the project, b) the total number of company employees at
the completion of the project and c) any net increases in the number of
employees in the company. Net increases in employment shall be further
classified by ethnicity, gender and occupational code.
The Contracting Party shall include, or cause to be included, the provisions of
clauses (1) through (3) in every Contract or purchase order that it enters into
in order to fulfill its obligations under the Contract, in such a manner that
such provisions will be binding upon each and every Contracting Party with
respect to any Contract or Subcontract.
II. GOALS FOR MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTICIPATION (CORE
AND SHELL)
(a) Contracting Party is required to use its "Best Efforts" to achieve
an overall M/WBE participation goal of 18.0% of the total dollar
value of the Contract, as it pertains solely to the hard costs of
Tenant's construction of the core and shell of the new building, and
shall exclude so called "soft costs" including, but not limited to,
architect, engineering, legal, design and other fees to
professionals and consultants, application and permit fees, cost of
surveys, inspections, furnishings and decorative items not being
affixed into the new building.
1
(b) The goal for M/WBE participation in the performance of the work is
expressed as a percentage of the contract price. The term "hard
costs" as used in this Section 11(a) and Section III (a), shall be
deemed to exclude architectural, engineering and other such design
consulting costs.
(c) The total dollar value of the work performed by M/WBEs will be
determined as: (i) the dollar value of the work subcontracted to
M/WBEs; (ii) where the Contracting Party is a joint venture,
association, partnership or other similar entity including one or
more M/WBEs -- the contract price multiplied by the percentage of
the entity's profits/losses which are to accrue to the M/WBE(s)
under the Contracting Party's agreement; or (iii) where the M/WBE is
the Contracting Party -- the contract price.
(d) The Contracting Party shall include, or cause to be included, the
provisions of clauses (a) through (c) in every Contract or purchase
order that it enters into in order to fulfill its obligations under
the Contract, in such a manner that such provisions will be binding
upon each and every Contracting Party with respect to any Contract
or Subcontract.
III. GOALS FOR MINORITY AND FEMALE WORKFORCE PARTICIPATION (CORE AND SHELL)
(a) The Contracting Party is required to use its "Best Efforts" to
achieve the overall goal of 20% minority and female workforce
(M/FWF) participation in the work performed pursuant to Contracts
entered into in connection with the Lease as it pertains to the hard
costs of Tenant's construction of the core and shell of the new
building.
(b) The M/FWF participation goals are expressed as a percentage equal to
the person hours of training and employment of minority or female
workers, as the case may be, used by any Contracting Party, divided
by the total person hours of training and employment of all workers
(including supervisory personnel).
(c) The required participation for minority and female employment and
training must be substantially uniform throughout the performance of
the work.
(d) The Contracting Party shall not participate in the transfer of
minority or female employees or trainees from employer-to-employer
or from project-to-project for the sole purpose of meeting the
Contracting Party's obligations herein.
(e) In striving to achieve the goals for M/FWF participation,
Contracting Party shall use its "Best Efforts" to identify and
employ qualified minority and female supervisory personnel and
journey persons.
(f) The non-working hours of trainees or apprentices may not be
considered in meeting the goals for M/FWF participation contained
herein unless: (i) such trainees or apprentices are employed by
Contracting Party during the training period; (ii) the Contracting
Party has made a commitment to employ the trainees or apprentices at
the completion of their training, subject to the availability of
employment opportunities; and (iii) the trainees are trained
pursuant to an approved training program.
(g) The Contracting Party shall include, or cause to be included, the
provisions of clauses (a) through (f) in every Contract or purchase
order that it enters into in order to fulfill its obligations under
the Contract, in such a manner that such provisions will be binding
upon each and every Contracting Party with respect to any Contract
or Subcontract.
IV. GOALS FOR MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTICIPATION
(LEASEHOLD IMPROVEMENTS)
(a) Contracting Party is required to use its best efforts to achieve the
following M/WBE participation goals with respect to the Tenant's or
subtenant's construction of leasehold improvements within the
building:
2
(1) SEVEN AND ONE HALF PERCENT (7.5%) of the total dollar value of the
Contract as it pertains solely to the hard costs in connection with
the leasehold improvements to leasehold space measuring 500,000 or
more square feet;
(2) FIVE PERCENT (5.0%) of the total dollar value of the Contract
as it pertains solely to the hard costs in connection with the
leasehold improvements to leasehold space totaling more than
three floors or leasehold space measuring 100,000 or more
square feet, but not exceeding 500,000 square feet.
(b) To the extent that any subtenant shall undertake the construction of
leasehold improvements within the building for three floors or less
or leasehold space not exceeding 100,000 square feet, then such
subtenant shall represent that it shall not discriminate against
employees or applicants for employment because of race, creed,
color, national origin, sex, sexual orientation, age, disability or
marital status and be in compliance with all applicable federal,
State and local law, policy, orders, rules and regulations which
prohibit unlawful discrimination.
V. GOALS FOR MINORITY AND FEMALE WORKFORCE PARTICIPATION (LEASEHOLD
IMPROVEMENTS)
(a) The Contracting Party is required to use its "Best Efforts" to
achieve the following M/FWF participation goals in the work
performed pursuant to contracts entered into in connection with the
leasehold improvements:
1) FIFTEEN PERCENT (15%) minority and female workforce
participation in the work performed pursuant to contracts
entered into in connection with a subtenant's leasing of
500,000 or more square feet of floor space;
(2) TEN PERCENT (10%) minority and female workforce participation
in the work performed pursuant to contracts entered into in
connection with a subtenant's leasing of more than three
floors or 100,000 OR MORE square feet, but not more than
500,000 square feet of floor space.
(b) To the extent that any subtenant shall undertake the construction of
leasehold improvements within the building for three floors or less
or leasehold space not exceeding 100,000 square feet, then such
subtenant shall represent that it shall not discriminate against
employees or applicants for employment because of race, creed,
color, national origin, sex, sexual orientation, age, disability or
marital status and be in compliance with all applicable federal,
State and local law, policy, orders, rules and regulations which
prohibit unlawful discrimination.
VI. EQUAL EMPLOYMENT OPPORTUNITY - OPERATION OF THE NEW BUILDING
(a) Tenant agrees that it will neither commit nor knowingly permit
discrimination by reason of race, creed, color, national origin,
sex, sexual orientation, age, disability, or marital status in the
sale, transfer or assignment of its interest under this Lease or in
the subletting, use or occupancy of the Premises or any part
thereof.
(b) Tenant agrees that with regard to the maintenance, management and
operation of the building, it shall be bound by, to the extent it
operates the building and, in any event, shall cause any person or
entity Tenant employs to operate the building with respect to the
maintenance, management and operation thereof, to be bound by the
provisions of paragraph (a) above.
VII. REPORTING REQUIREMENTS
The Contracting Party will permit access to its RELEVANT books, records and
accounts, with respect to the Contract, by the AAO SOLELY for purposes of
investigation to ascertain compliance with the provisions herein. Not later than
three business days after a request, the Contracting Party shall periodically
file, or cause to be filed, reports, substantially in the format attached hereto
as Schedule A-1 and A-2 (MBE/WBE Compliance Report to be filed monthly), with
the AAO detailing compliance with the provisions of these non-discrimination and
affirmative action clauses. Accuracy of the information contained in the
reporting documentation shall be certified to as to the actual knowledge of an
owner or officer of the Contracting Party.
3
VIII. NON-COMPLIANCE AND SANCTIONS
In the event that any Contracting Party violates any of the provisions herein,
the ESD and/or 42DP may require that the following sanctions and remedies for
non-compliance be imposed:
(a) Within twenty (20) days after the end of each calendar month, the
AAO will review the Monthly Employment Utilization Report and the
MBE/WBE Compliance Report filed with the AAO to assess compliance
with the established program. If the Contracting Party has failed to
file the required monthly reports and/or if in the reasonable
judgment of the AAO, an analysis of the reports reveals apparent
underutilization, the AAO may elect to notify (which notification
shall be in writing) the Contracting Party in writing (the "First
Notice"), which notice shall describe the nature and extent of the
apparent underutilization.
(b) If the AAO's review and analysis of the Contracting Party's reports
filed in the month next following the month in which the Contracting
Party received the First Notice reveals that there continues to be
apparent underutilization, then the AAO may notify the Contracting
Party in writing (the "Second Notice") which notice shall describe
the nature and extent of the continuing apparent underutilization
and will arrange a conference (allowing three days advance notice to
the Contracting Party) which the Contracting Party must attend, at
which the AAO will identify in consultation with Tenant, specific
reasonable and practicable corrective measures from among those
available to demonstrate Best Efforts which the Contracting Party
will undertake.
(c) If the AAO's review and analysis of the Contracting Party's reports
filed in the month next following the month in which the Contracting
Party received the Second Notice reveals continuing apparent
underutilization and if the Contracting Party has not already
undertaken the specific corrective measures agreed upon to
demonstrate its Best Efforts, the AAO may notify the Contracting
Party in writing (the "Final Notice"), which notice shall describe
the nature and extent of the continuing apparent underutilization.
Upon receipt of the Final Notice, the Contracting Party shall be
required to comply with the following sanctions and remedies for
compliance:
(1) The Contracting Party shall attend a hearing with the AAO.
(2) After any such hearing, and a determination by the AAO that
the Contracting Party has failed to comply with any of these
provisions, and the passage of time in which to remedy such
failure has transpired, and as the sole remedy for
non-compliance, the AAO, in his/her sole discretion, may
assess liquidated damages against the Contracting Party for
failure to demonstrate its best efforts in complying with the
affirmative action program. Liquidated damages may be assessed
in an amount equal to the dollar value of Contracts that would
have been realized by M/WBEs if the goals had been achieved.
(3) If such an award is assessed against any Contracting Party,
the amount of such assessment may be withheld from any monies
due to the Contracting Party by the ESD and/or 42DP or, may be
paid to the ESD and/or 42DP by the Contracting Party that has
been found to fail to comply with the affirmative action
program provided, however, that nonpayment of any such
assessment by any Contracting Party shall be subject to the
right and time to cure of a recognized mortgagee pursuant to
subsection 11.3(b) of this Lease. Any liquidated damages
collected hereunder shall be paid into one or more M/WBE
technical assistance funds administered by the ESD and/or
42DP.
(d) Such sanctions that may be imposed and remedies invoked hereunder,
shall be considered independent of, or in addition to, sanctions and
remedies otherwise provided by law.
(e) In no event shall ESD and/or 42DP terminate the Lease or any
Contract, or order the cessation of work under any Contract, due to
any Contracting Party's failure to comply with the provisions of
this affirmative action program.
(f) In no event shall any Recognized Mortgage (or its designee or other
successor-in-interest) which acquires Tenant's interest in the Lease
by foreclosure (or deed-in-lieu of foreclosure) of its Recognized
4
Mortgage be liable for any damages accruing prior to the time of
such acquisition of Tenant's interest in the Lease.
5
42ND ST. DEVELOPMENT PROJECT, INC. AND EMPIRE STATE DEVELOPMENT
NON-DISCRIMINATION AND AFFIRMATIVE ACTION DEFINITIONS
AFFIRMATIVE ACTION
Shall mean the actions to be undertaken by the Contracting Party in connection
with work performed under the Lease, to ensure non-discrimination and
Minority/Women-owned Business Enterprise and minority/female workforce
participation. as set forth in Sections II, III, IV, and V herein, and developed
by ESD and/or its subsidiaries.
With regard to the obligations imposed on the Tenant to comply and to cause its
Contractors to comply with the provisions set forth herein, shall mean the
taking by the Tenant of reasonable and practicable affirmative steps to ensure
compliance on its own part and on the part of its Contractors and subtenants
including the imposition of reasonable sanctions, where required under the
provisions of the Lease.
AFFIRMATIVE ACTION OFFICER ("AAO")
Shall mean ESD's Affirmative Action Officer or his/her designee, managing the
affirmative action program for ESD and/or its subsidiaries.
CONTRACT
Shall mean a written agreement or purchase order instrument, or amendment
thereto, executed by or on behalf or a Contracting Party, providing for a total
expenditure in excess of $10,000 for labor, services, supplies, equipment,
materials or any combination of the foregoing regarding the implementation of
the project. Notwithstanding the foregoing definition, it is understood and
agreed by ESD and the Tenant that achievement of the percentage goals set forth
in Sections II, III, IV and V shall be based upon an assessment of the overall
project upon completion.
CONTRACTING PARTY
Shall mean (i) the Tenant, or parties with whom the Tenant has executed a
contract, to perform services, including construction work, resulting from the
lease, (ii) any party which undertakes to construct leasehold improvements
within the building, but not including improvements to leasehold space measuring
less than 100,000 square feet and (iii) any contractor, subcontractor,
consultant, subconsultant or vendor supplying goods or services, pursuant to a
contract or purchase order in excess of $1,500, in connection with work
performed under the Lease. Notwithstanding the foregoing definition, it is
understood and agreed by ESD and the Tenant that achievement of the percentage
goals set forth in Sections II, III, IV and V shall be based upon an assessment
of the overall project upon completion.
SUBCONTRACT
Shall mean an agreement providing for a total expenditure in excess of $1,500
between a Contracting Party and any individual or business enterprise, for goods
or services rendered in connection with construction work performed under the
Lease. Notwithstanding the foregoing definition, it is understood and agreed by
ESD and the Tenant that achievement of the percentage goals set forth in
Sections II, III, IV and V shall be based upon an assessment of the overall
project upon completion.
MINORITY BUSINESS ENTERPRISE ("MBE")
Shall mean a business enterprise, including a sole proprietorship, partnership
or corporation that is: (i) at least fifty-one percent (51%) owned by one or
more Minority Group Members; (ii) an enterprise in which such minority ownership
is real, substantial and continuing; (iii) an enterprise in which such minority
ownership has and exercises the authority to control and operate, independently,
the day-to-day business decisions of the enterprise; (iv) an enterprise
authorized to do business in the State of New York and is independently owned
and operated; and (v) an enterprise certified by New York State as a minority
business.
6
MINORITY GROUP MEMBER
Shall mean a United States citizen or permanent resident alien who is and can
demonstrate membership in one of the following groups: (i) Black persons having
origins in any of the Black African racial groups; (ii) Hispanic persons of
Mexican, Puerto Rican, Dominican, Cuban, Central or South American descent of
either Indian or Hispanic origin, regardless of race; (iii) Asian and Pacific
Islander persons having origins in any of the Far East countries, South East
Asia, the Indian subcontinent or the Pacific Islands; and (iv) Native American
or Alaskan native persons having origins in any of the original peoples of North
America.
WOMEN-OWNED BUSINESS ENTERPRISE ("WBE")
Shall mean a business enterprise, including a sole proprietorship, partnership
or corporation that is: (i) at least fifty-one percent (51%) owned by one or
more citizens or permanent resident aliens who are women; (ii) an enterprise in
which the ownership interest of such women is real, substantial and continuing;
(iii) an enterprise in which such women ownership has and exercises the
authority to control and operate, independently, the day-to-day business
decisions of the enterprise; (iv) an enterprise authorized to do business in the
State of New York and is independently owned and operated; and (v) an enterprise
certified by New York State as woman-owned.
7
42ND ST. DEVELOPMENT PROJECT, INC. AND EMPIRE STATE DEVELOPMENT
NON-DISCRIMINATION AND AFFIRMATIVE ACTION DEFINITIONS
BEST EFFORTS - MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTICIPATION
Although Best efforts shall not be limited to the efforts specified herein, the
compliance with the following list shall be prima facie evidence that Best
Efforts are being made. The role of M/WBE firms are not restricted to that of a
subcontractor/subconsultant. Where applicable, M/WBE firms should be considered
for roles as prime contractors.
(a) Dividing the contract work into smaller portions in such a manner as to
permit subcontracting to the extent that it is economically and
technically feasible to do so;
(b) Actively and affirmatively soliciting bids from qualified M/WBEs,
including circulation of solicitations to minority and women's trade
associations. Each Contracting Party shall maintain records detailing the
efforts made to provide for meaningful M/WBE participation in the work.
Such record keeping must include the names and addresses of all M/WBEs
contacted and, if an M/WBE is the low bidder and is not selected for such
work or portion thereof, the reasons for such decision;
(c) Making plans and specifications for prospective work available to M/WBEs
in sufficient time for review;
(d) Utilizing the services and cooperating with those organizations providing
technical assistance to the Contracting Party in connection with potential
M/WBE participation on the Contract;
(e) Utilizing the resources of the AAO to identify New York State certified
M/WBE firms for the purpose of soliciting bids and subcontracts; and
(f) Encouraging the formation of joint ventures, associations, partnerships,
or other similar entities, where appropriate, to ensure that the
Contracting Party will meet its obligations herein.
(g) The Contracting Party shall remit payment in a timely fashion.
BEST EFFORTS - MINORITY GROUP MEMBER AND FEMALE WORKFORCE PARTICIPATION
Although Best efforts shall not be limited to the efforts specified herein, the
compliance with the following list shall be prima facie evidence that Best
Efforts are being made to provide for meaningful Minority Group Member and
female workforce participation.
(a) Ensure and maintain a working environment free of harassment,
intimidation, and coercion at the premises. The Contracting Party shall
specifically ensure that all foremen, superintendents, and other on-site
supervisory personnel are aware of and carry out the obligation to
maintain such a working environment, with specific attention to Minority
Group Member or female individuals working at the premises;
(b) State in all solicitations or advertisement for employees that all
qualified applicants will receive consideration for employment without
regard to race, creed, color, national origin, sex, sexual orientation,
age disability or marital status;
(c) Send to each labor union or representative of workers with which a
collective bargaining agreement or understanding is in place, a notice
advising the said labor union or workers' representative of commitments
under this Section, and post copies of the notice in conspicuous places
available to employees and applicants for employment;
(d) Establish and maintain a current list of Minority Group Member and female
recruitment sources and community organizations, and provide written
notification to them when employment opportunities are available. Maintain
a record of the organizations' responses;
8
(e) Maintain a current file of the name, address and telephone number of each
Minority Group Member and female applicant and any referrals from a union,
recruitment source or community organization, and of the action taken with
respect to each individual. If such individual was sent to the union
hiring hall for referral and was not referred back by the union or, if
referred, was not employed, this shall be documented in writing in the
file with the reasons therefore, along with whatever additional actions
the Contracting Party may have taken;
(f) Disseminate the Contracting Party's equal employment opportunity policy by
providing notice of the policy to unions and training programs and
requesting their cooperation in meeting its Equal Employment Opportunity
obligations, by including it in any policy manual and collective
bargaining agreement, by publicizing it in the company newspaper, annual
report, and other similar items, by specific review of the policy with all
management personnel and with all Minority Group Member and female
employees at least once a year, and by posting the company Equal
Employment Opportunity policy on bulletin boards accessible to all
employees at each location where work is performed under this Contract;
(g) Disseminate the Contracting Party's Equal Employment Opportunity policy
externally by including it in any advertising in the news media,
specifically including Minority Group Member and female news media, and
providing written notification to and discussing the Equal Employment
Opportunity policy with any contractor with whom the Contracting Party
does or anticipates doing business; and,
(h) Ensure that all facilities and company activities are non-segregated
except that separate or single-user toilets and necessary changing
facilities shall be provided to assure privacy between the sexes.
9
SCHEDULE A-1 42DP/EMPIRE STATE DEVELOPMENT
MONTHLY EMPLOYMENT UTILIZATION REPORT
(SEE REVERSE SIDE FOR INSTRUCTIONS)
=============================================================================================================================
COMPANY NAME PROJECT NAME CONTRACTOR START DATE
ADDRESS PROJECT LOCATION ESTIMATED COMPLETION DATE
COUNTY _____ ZIP. PERCENT OF JOB COMPLETED (FOR
REPORTING PERIOD)
TELEPHONE NUMBER REPORTING PERIOD Month
FEDERAL ID NO Year CONTRACT NO:
CHECK IF NOT FOR PROFIT: CONTRACT AMOUNT:__$
----------------------------------------------------------------------------------------------------------------------------
1. WORKER HOURS OF EMPLOYMENT 2. NUMBER OF WORKERS
------------------------------------------------------------------------------------------------------------
1b. BLACK 1e. NATIVE
1a ALL (Not of 1d. ASIAN or AMERICAN
WORKER Hispanic PACIFIC ALASKA 2a. ALL 2b. MINORITY
CLASSIFICATION HOURS Orgin) 1c. HISPANIC ISLANDER NATIVE
------------------------------------------------------------------------------------------------------------
MALE FEMALE TOTAL MALE FEMALE MALE FEMALE MALE FEMALE MALE FEMALE MALE FEMALE MALE FEMALE
============================================================================================================================
Supervisory
----------------------------------------------------------------------------------------------------------------------------
Journey Worker
----------------------------------------------------------------------------------------------------------------------------
Apprentice
----------------------------------------------------------------------------------------------------------------------------
Trainee
----------------------------------------------------------------------------------------------------------------------------
Subtotal
============================================================================================================================
Journey Worker
----------------------------------------------------------------------------------------------------------------------------
Apprentice
----------------------------------------------------------------------------------------------------------------------------
Trainee
----------------------------------------------------------------------------------------------------------------------------
Subtotal
============================================================================================================================
Journey Worker
----------------------------------------------------------------------------------------------------------------------------
Apprentice
----------------------------------------------------------------------------------------------------------------------------
Trainee
----------------------------------------------------------------------------------------------------------------------------
Subtotal
============================================================================================================================
TOTAL SUPERVISORS
----------------------------------------------------------------------------------------------------------------------------
TOTAL JOURNEY WORKERS
----------------------------------------------------------------------------------------------------------------------------
TOTAL APPRENTICES
----------------------------------------------------------------------------------------------------------------------------
TOTAL TRAINEES
----------------------------------------------------------------------------------------------------------------------------
GRAND TOTAL
============================================================================================================================
===========================================================================
COMPANY EMPLOYMENT DATA
--------------------------------------------------------------------------
A. B. C. NET INCREASE (APPLIES ONLY TO CHANGES, IF ANY,
IN COMPANY'S EMPLOYEE MAKEUP AT THE END OF
PROJECT)
TOTAL TOTAL
COMPANY COMPANY
EMPLOYEES EMPLOYEES ------------------------
(AT THE THE END OF
BEGINNING OF PROJECT) TOTAL MALE TOTAL FEMALE
PROJECT ------------------------------------------------
C1. C2. C3. C4.
EMPLOYEES OCCUPATIONAL EMPLOYEES OCCUPATIONAL
CODES/NUMBER CODES/NUMBER
OF EMPLOYEES OF EMPLOYEES
----------------------------------------------------------------------------
3. CONTSTRUCTION TRADES TOTAL TOTAL
WHITE WHITE
----------------------------------------------------------------------------
TOTAL TOTAL
BLACK BLACK
----------------------------------------------------------------------------
TOTAL TOTAL
HISPANIC HISPANIC
----------------------------------------------------------------------------
TOTAL TOTAL
ASIAN ASIAN
----------------------------------------------------------------------------
TOTAL TOTAL
NATIVE NATIVE
AMERICAN AMERICAN
============================================================================
CERTIFICATION
I, ________________________________________________________ (Print Name),
the _________________________________________ (Title), do certify that (i) I
have read this Monthly Employment Utilization Report and (ii) to the best
of my knowledge, information and belief the information contained herein
is complete and accurate.
SIGNATURE_______________________________________ DATE
10
MONTHLY EMPLOYMENT UTILIZATION REPORT
INSTRUCTIONS FOR COMPLETION
The Monthly Employment Utilization Report ("MEUR") is to be completed by each
subject contractor (both Prime and Sub) and signed by a responsible official of
the company. The reports are to be filed by the 5th day of each month during the
term of the project, and they shall include the total work hours for each
employee classification in each trade in the covered area for the monthly
reporting period. The prime contractor is responsible for submitting its
subcontractors report, along with its own. Additional copies of this form may be
obtained from Empire State Development ("ESD").
MINORITY: Includes Blacks, Hispanics, Native Americans, Alaskan Natives, and
Asian and Pacific Islanders, both men and women.
1. WORKER HOURS OF EMPLOYMENT (a-e))
a) ALL WORKER HOURS: The total number of male hours,
the total number of female
hours, and the total of both
male and female hours worked
under each classification.
b) THROUGH e) MINORITY WORKER HOURS The total number of male hours
and the total number of female
hours worked by each specified
group of minority worker in each
classification.
2. NUMBER OF WORKERS (a-b)
a) ALL WORKERS Total number of males and total
number of females working in
each classification of each
trade in the contractor's
aggregate workforce during
reporting period.
b) MINORITY WORKERS Total number of male minorities
and total number of female
minorities working in each
classification, in each trade in
the contractor's aggregate
workforce during reporting
period.
3. CONSTRUCTION TRADE: Only those construction crafts
which contractor employs in the
covered area.
CONSTRUCTION TRADES INCLUDE:
Field Office Staff
(Professionals and
Office/Clerical, Laborers,
Equipment Operators, Surveyors,
Truck Drivers, Iron Workers,
Carpenters, Cement Masons,
Painters, Electricians, Plumbers
and Other.
Note: ESD may demand payroll records to substantiate work hours listed on the
Monthly Employment Utilization Report, if discrepancies should arise.
COMPANY EMPLOYMENT DATA SECTIONS A THROUGH C):
The Contractor shall also include with the first MEUR report and as part of the
documentation required for final payment, such data describing: a) the total
number of company employees at commencement of the project, b) the total number
of company employees at the completion of the project and c) any net increases
in the number of employees in the company. Net increases in employment shall be
further classified by ethnicity, gender and Occupational Code; and shall be
attributable to the contractor's participation in an ESD and/or 42DP project or
initiative.
A. TOTAL COMPANY EMPLOYEES: Total number of company employees in N.Y.S.
offices, upon commencement of project.
B. TOTAL COMPANY EMPLOYEES: Total number of company employees in N.Y.S.
offices, upon completion of project.
C. NET INCREASE (C1 THROUGH C4): Provide information identifying any net
increase in the number of employees in the
company upon project completion. Classify
any new employees by gender, ethnicity and
occupation.
MALE
1. EMPLOYEES Classify any new male employee by ethnic
background.
2. OCCUPATIONAL CODES Identify occupation by using the CODES
provided below and indicate number of
employees in each category.
FEMALE
3. EMPLOYEES Classify any new female employee by ethnic
background.
4.OCCUPATIONAL CODES Identify occupation by using the codes
provided below and indicate number of
employees in each category.
OCCUPATIONAL CODES
Officials/Administrators 100
Professionals 110
Technicians 120
Sales Workers 130
Office & Clerical 140
Craft Workers 150
Operatives 160
Laborers 170
Service Workers 180
FORWARD TO:
Empire State Development
Xxxxxxx Xxxxx Affirmative Action Unit
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Office: (000) 000-0000 FAX: (000) 000-0000
11
SCHEDULE A-2
MBE/WBE COMPLIANCE REPORT
CONSTRUCTION
PROJECT SPONSER/DEVELOPER:__________________________________ ESD AA REPRESENTATIVE: XXXXXXX XXXXX
ADDRESS: __________________________________ PROJECT NAME:
TELEPHONE: __________________________________ PROJECT START DATE:____ PERCENT COMPLETE:
CONTACT PERSON: __________________________________ ACTUAL COMPLETION:
TOTAL NUMBER OF SUBCONTRACTORS:_____________________________ ATTACH M/WBS CONTRACT DOCUMENTATION, I.E. EXECUTED
CONTRACTS, SIGNED PURCHASE ORDERS OR CANCELED CHECKS.
TOTAL DOLLAR AMOUNT OF SUBCONTRACTS:________________________
THIS REPORT SHOULD BE COMPLETED BY AN OFFICER OF THE
REPORTING COMPANY, AND FORWARDED TO THE ESD AA
REPRESENTATIVE WITH THE APPROPRIATE DOCUMENTATION.
============================================================================================================================
PRIME CONTRACTOR TYPE OF CONTRACT CONTRACT M/WBE MBE/WBE SCOPE OF SERVICES AMOUNT CONTRACTED
(NAME, ADDRESS, (TRADE/SERVICE) AMOUNT SUBCONTRACT DATE SUBCONSULTANT TO MBE/WBE
CONTACT PERSON DATE (NAME, ADDRESS
AND PHONE) CONTACT PERSON
AND PHONE)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
============================================================================================================================
CERTIFICATION:
I, ________________________________________________________ (PRINT NAME),
THE _________________________________________ (TITLE), DO CERTIFY THAT (i)
I HAVE READ THIS COMPLIANCE REPORT AND (ii) TO THE BEST OF MY KNOWLEDGE,
INFORMATION AND BELIEF THE INFORMATION CONTAINED HEREIN IS COMPLETE AND
ACCURATE.
SIGNATURE_______________________________________ DATE
FORWARD TO:
EMPIRE STATE DEVELOPMENT
XXXXXXX XXXXX - AFFIRMATIVE ACTION UNIT
000 XXXXX XXXXXX
XXX XXXX, XX 00000 OFFLCE: (000) 000-0000 FAX (000) 000-0000
12
EXHIBIT U
Intentionally Omitted
EXHIBIT V
Intentionally Omitted
EXHIBIT W
FORM OF LEASE ASSIGNMENT (ss. 32.1(a)(ii))
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "ASSIGNMENT") dated as
of ____________, 200_ by and between THE NEW YORK TIMES BUILDING LLC
("Assignor"), a New York limited liability Landlord, having an office at c/o The
New York Times Company, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and 42ND
ST. DEVELOPMENT PROJECT, INC. ("ASSIGNEE"), 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, having an office at 000 Xxxxx
Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H :
WHEREAS, ESDC and The City of New York (the "CITY") have developed,
and are in the process of implementing, a rehabilitation and renewal plan for an
area of midtown Manhattan surrounding West 42nd Street between Broadway and
Eighth Avenue, known as the 00xx Xxxxxx Development Project (the "42ND STREET
PROJECT");
WHEREAS, in furtherance of the 00xx Xxxxxx Project, ESDC obtained
fee title to the Property (as hereinafter defined) pursuant to the Condemnation
(as hereinafter defined);
WHEREAS, promptly after ESDC obtained fee title to the Property,
ESDC conveyed (a) to Assignee an estate on limitation in the Property, and (b)
to the City a reversionary estate in the Property;
WHEREAS, Assignee and Assignor have entered into that certain
Agreement of Lease dated as of December __, 2001 between Assignee, as landlord,
and Assignor, as tenant (the "GROUND LEASE") with respect to certain land more
particularly described in EXHIBIT A attached hereto and hereby made a part
hereof and all improvements then or thereafter located thereon (collectively,
the "PROPERTY");
WHEREAS, Assignor has entered into (a) that certain Agreement of
Sublease dated as of December __, 2001 between Assignor and NYT Real Estate
Company LLC (the "NYTC SUBLEASE"), (b) that certain Agreement of Sublease dated
as of December __, 2001 between Assignor and FC Lion LLC (the "FC OFFICE
SUBLEASE") and (c) that certain Agreement of Sublease dated as of December ___,
2001 between Assignor and FC Lion LLC (the "FC RETAIL SUBLEASE");
WHEREAS, the NYTC Sublease, the FC Office Sublease, the FC Retail
Sublease, any New Office Subleases (as defined in the FC Office Sublease) and
any new leases entered into pursuant to Section 31.6 of any of the foregoing are
referred to herein, collectively, as the "SEVERANCE SUBLEASES";
WHEREAS, NYTB has 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;
WHEREAS, Assignor wishes to assign all of its right, title and
interest in and to the Ground Lease and the Severance Subleases to Assignee, and
Assignee wishes to assume all such right, title and interest;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
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 Severance Subleases. References
herein to any document or instrument shall refer to the same as it may be
amended, modified, supplemented, extended, renewed or assigned.
2. Subject to the Condominium Declaration (as defined in the Ground
Lease), Assignor hereby assigns, grants, bargains, sells and transfers all of
its right, title and interest in and to the Ground Lease, together with any and
all amendments, extensions and renewals thereof, and together with all rights
and obligations accrued or to accrue under said Ground Lease (including, without
limitation, any claims against Assignee accruing thereunder), to Assignee and
its successors and assigns, TO HAVE AND TO HOLD the same unto Assignee, its
successors and assigns, from the date hereof, for all the rest of the term of
the Ground Lease.
3. Assignee hereby assumes and agrees to perform and comply with all of
the covenants and conditions of the Ground Lease to be performed or complied
with by the tenant thereunder on and after the date hereof, as if Assignee had
originally executed the Ground Lease as the tenant thereunder.
4. Assignor hereby assigns, grants, bargains, sells and transfers all of
its right, title and interest in and to the Severance Subleases, together with
any and all amendments, extensions and renewals thereof, and together with all
rights and obligations accrued or to accrue under said Severance Subleases, to
Assignee and its successors and assigns, TO HAVE AND TO HOLD the same unto
Assignee, its successors and assigns, from the date hereof, for all the rest of
the respective terms of the Severance Subleases.
5. Assignee hereby assumes and agrees to perform and comply with all of
the covenants and conditions of the Severance Subleases to be performed or
complied with by the landlord thereunder on and after the date hereof, as if
Assignee had originally executed the Severance Subleases as the landlord
thereunder.
6. Assignor agrees that it will, at any time and from time to time after
the date of this Assignment, promptly upon the request of Assignee, do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acts, assignments, transfers, powers of attorney and
assurances as may be required for the better assigning, transferring, granting,
assuring and confirming to Assignee, or to its successors and assigns, the
leasehold estate under the Ground Lease assigned to Assignee pursuant to this
Assignment.
7. This Assignment shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns.
8. This Assignment shall be governed by, and construed in accordance with
the laws of the State of New York.
W-2
9. This Assignment may be executed in counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
10. Assignor and Assignee agree that, notwithstanding that after giving
effect to this Assignment Assignee shall hold the interests of both landlord and
tenant under the Ground Lease, this Assignment shall not cause a merger of such
interests, which interests (as set forth in Article XXVI of the Ground Lease)
are to remain separate and distinct.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK.]
W-3
IN WITNESS WHEREOF, the parties hereto have signed and delivered
this Assignment as of the date first set above.
ASSIGNOR:
THE NEW YORK TIMES BUILDING LLC
By: NYT REAL ESTATE COMPANY LLC, as a member
By: THE NEW YORK TIMES COMPANY, its sole
member
By: ________________________________
Name:
Title:
By: FC LION LLC, as a member
By: FC 00XX XXXXXX ASSOCIATES, LLC, its
managing member
By: RRG SOUTH 8 INC., its managing
member
By:_____________________________
Name:
Title:
ASSIGNEE:
42ND ST. DEVELOPMENT PROJECT, INC.
By: _______________________________
Name:
Title:
W-4
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 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 xx Xxxx 0xxx 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.
Being the property located at and known as Block 1012, Xxxx 0, 0, 0, 00,
00, 00, 00, 00, 00 and part of 15 on the Tax Assessment Map of the County of New
York.
W-5
EXHIBIT X
FORM CONDOMINIUM
ASSOCIATION ASSUMPTION AGREEMENT (ss. 32.1(a)(iii))
THIS ASSUMPTION AGREEMENT (this "AGREEMENT") is made as of this
_____ day of ____________, 200_, by and between 42ND ST. DEVELOPMENT PROJECT,
INC., having an office at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("42DP") and THE NEW YORK TIMES BUILDING ASSOCIATION, INC., having an office at
c/o The New York Times Company, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "CONDOMINIUM").
WITNESSETH:
WHEREAS, 42DP and The New York Times Building LLC ("NYTB") have
entered into that certain Agreement of Lease, dated as of December __, 2001 (as
it may have been amended prior to the date hereof, the "LEASE") with respect to
that certain portion of the 00xx Xxxxxx Project commonly known as "Site 8
South";
WHEREAS, NYTB has entered into (i) that certain Agreement of
Sublease with NYT Real Estate Company LLC ("NYT SUBTENANT"), dated as of
December __, 2001, (ii) that certain Agreement of Sublease with FC Lion LLC ("FC
OFFICE SUBTENANT"), dated as of December __, 2001, and (iii) that certain
Agreement of Sublease with FC Lion LLC ("FC RETAIL SUBTENANT"; and together with
NYT Subtenant and FC Office Subtenant, the "TENANTS"), dated as of December __,
2001 (each, a "SUBLEASE" and collectively, the "SUBLEASES"; capitalized terms
used herein and not defined herein shall have the meanings set forth in each
Sublease, as applicable);
WHEREAS, 42DP has entered into that certain Site 8 South Declaration
of Design, Use and Operation, dated as of December __, 2001 (the "DUO
DECLARATION"), which contains certain obligations of entities defined in the DUO
Declaration as the "OPERATORS" (each, an "OPERATOR") with respect to the
Property;
WHEREAS, 42DP, NYTB (as "OWNER"), The New York City Transit
Authority, and The City of New York have entered into that certain Agreement,
dated as of December __, 2001 (the "SUBWAY AGREEMENT"; and together with the
Subleases and the DUO Declaration, as any of the foregoing may be amended, from
time to time, the "APPLICABLE PROJECT DOCUMENTS"), with respect to the Subway
Improvements (as defined in the Lease);
WHEREAS, pursuant to Article XXXII of the Lease, NYTB has elected to
impose a leasehold condominium regime on the Property;
WHEREAS, in connection with such election and pursuant to Section
32.1(a)(i) of the Lease, NYTB shall, on the date hereof, cause that certain
Declaration of Leasehold Condominium, dated as of _______ __, 200_ (the
"DECLARATION") to be recorded as required under the Condominium Act;
WHEREAS, in connection with such election and pursuant to Section
32.1(a)(ii) of the Lease, NYTB shall, on the date hereof, assign its interests
in the Lease and the Subleases to 42DP pursuant to that certain Assignment and
Assumption Agreement, dated as of the date hereof; and
WHEREAS, in connection with such election and pursuant to Section
32.1(a)(iii)(B) of the Lease, NYTB is obligated to cause the Condominium to
deliver this Agreement to 42DP.
NOW THEREFORE, in consideration of the benefits received under the
Applicable Project Documents, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties hereto hereby agree as follows:
1. ASSUMPTION OF OBLIGATIONS. The Condominium hereby expressly
assumes the performance and observance of the obligations set forth on EXHIBIT A
attached hereto (such obligations, the "ASSUMED OBLIGATIONS"). The Condominium
shall be and remain liable for the performance and observance of each Assumed
Obligation (except to the extent 42DP shall release a Tenant from any such
Assumed Obligation in writing). The obligations of the Condominium under this
Agreement and of each Tenant, each Operator or the Owner (all such entities,
collectively, the "TENANT PARTIES"), as applicable, under the Applicable Project
Documents, shall be joint and several.
2. (a) The Condominium agrees that the Assumed Obligations will be
paid or performed strictly in accordance with the Applicable Project Documents
and this Agreement, as applicable, regardless of any law, statute, rule,
regulation, decree or order now or hereafter in effect in any jurisdiction
affecting or purporting to affect in any manner any of such terms or the rights
or remedies of the Public Parties with respect thereto.
(b) Any payment or payments made by the Condominium or any other
person or received or collected by 42DP from any Tenant Party, or any other
person by virtue of any action or proceeding or any other set-off or
appropriation or application at any time or from time to time in respect of any
obligations or liabilities of any Tenant Party under the Applicable Project
Documents may be applied by 42DP in satisfaction of such obligations and
liabilities in such order as 42DP may determine, and no application of such
payment or payments to satisfaction of indebtedness, obligations or liabilities
other than the Assumed Obligations shall discharge in any manner any obligations
of the Condominium hereunder.
(c) The liability of the Condominium under this Agreement shall be
absolute and unconditional and, except to the same extent any Assumed Obligation
may have been modified, shall not be affected, released, terminated, discharged
or impaired, in whole or in part, by, and 42DP may proceed to exercise any right
or remedy hereunder irrespective of, any or all of the following:
(i) any lack of genuineness, regularity, validity, legality or
enforceability, or the voidability of, the Applicable Project Documents or any
other agreement or instrument relating thereto;
(ii) the failure of 42DP to exercise or to exhaust any right
or remedy or take any action against any Tenant Party or any other security
available to it;
(iii) any amendment or modification of the terms of the
Applicable Project Documents;
(iv) any amendment, waiver or agreement now or hereafter
executed, if applicable, by any Tenant Party or any other party affecting the
time, manner or place of payment or performance, of all or any of the Assumed
Obligations or any extensions of time for payment, performance or observance,
whether in whole or in part, of the terms of the Applicable Project
2
Documents on the part of any Tenant Party, as applicable, to be paid, performed
or observed, as applicable, including, without limitation, any assertion or
enforcement or failure or refusal to assert or enforce by 42DP with respect to a
departure from, any term of the Applicable Project Documents (including, without
limitation, the waiver by 42DP of any default of any Tenant Party);
(v) any failure or delay of 42DP to exercise, or any lack of
diligence in exercising, any right or remedy with respect to the Applicable
Project Documents or this Agreement;
(vi) any dealings or transactions between 42DP and any Tenant
Party, as applicable, whether or not the Condominium shall be a party to or
cognizant of the same;
(vii) any bankruptcy, insolvency, assignment for the benefit
of creditors, receivership, trusteeship or dissolution of or affecting any
Tenant Party, as applicable;
(viii) any exchange, surrender or release, in whole or in
part, of any security which may be held by 42DP at any time for or under the
Applicable Project Documents or in respect of the Assumed Obligations;
(ix) the release of any party, other than a Tenant Party, from
liability for the payment, performance or observance of any of the Assumed
Obligations or any of the terms of the Applicable Project Documents on the part
of any Tenant, as applicable, to be paid, performed or observed, as applicable,
whether by operation of law or otherwise;
(x) any rights, powers or privileges 42DP may now or hereafter
have against any person, entity or collateral in respect of the Assumed
Obligations;
(xi) 42DP's consent to any assignment or successive
assignments of the Lease or the Subleases by any Tenant;
(xii) any other circumstance which might in any manner or to
any extent constitute a defense available to any Tenant Party, or vary the risk
of the Condominium, or might otherwise constitute a legal or equitable discharge
or defense available to a surety or guarantor, whether similar or dissimilar to
the foregoing;
(xiii) any notice of the creation, renewal or extension of the
Assumed Obligations and notice of or proof of reliance by 42DP upon this
Agreement or acceptance of this Agreement; or
(xiv) any change, restructuring or termination of the
structure or existence of any Tenant Party;
whether occurring before or after any default by any Tenant Party, as
applicable, under any of the Applicable Project Documents and with or without
further notice to or assent from the Condominium.
(c) This Agreement shall continue to be effective or be reinstated,
as the case may be, and the rights of the Public Parties, as applicable,
hereunder shall continue with respect to, any Assumed Obligation (or portion
thereof) at any time paid by any Tenant Party, as applicable, which shall
thereafter be required to be restored or returned by 42DP upon the insolvency,
3
bankruptcy or reorganization of such Tenant Party, as applicable, or for any
other reason, all as though such Assumed Obligation (or portion thereof) had not
been so paid or applied.
(d) Each Public Party, as applicable, may proceed to protect and
enforce any or all of its rights under this Agreement by suit in equity or
action at law, whether for specific performance of any covenants or agreements
contained in this Agreement or otherwise, or to take any action authorized or
permitted under applicable law, and shall be entitled to require and enforce the
performance of all acts and things required to be performed hereunder by the
Condominium. Each and every remedy of each Public Party, as applicable, shall,
to the extent permitted by law, be cumulative and shall be in addition to any
other remedy given hereunder or now or hereafter existing at law or in equity.
The Condominium shall indemnify and hold each Public Party, as applicable, free
and harmless from and against any and all loss, damage, cost, expense, injury,
or liability each Public Party may suffer or incur in connection with the
exercise of its rights under this Agreement or the performance of the Assumed
Obligations.
3. The Condominium expressly waives the following:
(a) notice of any change in the financial condition of any Tenant
Party, as applicable;
(b) promptness, diligence, presentment and demand for payment or
performance of any of the Assumed Obligations;
(c) any demand for payment under this Agreement;
(d) the right to interpose all substantive and procedural defenses
of the law of guaranty, indemnification and suretyship, except the defenses of
prior payment or performance by any Tenant Party, as applicable, of the Assumed
Obligations which the Condominium is called upon to pay or perform under this
Agreement;
(e) all rights and remedies accorded by applicable law to
guarantors, or sureties, including, without being limited to, any extension of
time conferred by any law now or hereafter in effect;
(f) the right to trial by jury in any action or proceeding of any
kind arising on, under, out of, or by reason of or relating, in any way, to this
Agreement or the interpretation, breach or enforcement hereof;
(g) the right to interpose any set-off or counterclaim of any nature
or description in any action or proceeding arising hereunder or with respect to
this Agreement; and
(h) any right or claim of right to cause a marshaling of the assets
of any Tenant Party, as applicable, or to cause the Public Parties, as
applicable, to proceed against any Tenant Party, as applicable, and/or any
collateral or security held by the Public Parties, as applicable, at any time or
in any particular order
4. SUCCESSORS. This Agreement is and shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. The Condominium may not assign its interest in this Agreement to any
Person without the consent of 42DP. The Condominium and each Tenant agrees that
the Condominium shall, upon any reconstitution of the Condominium,
4
succeed to the obligations of the Condominium hereunder, and shall, within ten
(10) days of request of 42DP, provide a written confirmation thereof to 42DP.
5. CONSENT AND JURISDICTION.
(a) The Condominium acknowledges and agrees that all disputes
arising, directly or indirectly, out of or relating to this Agreement, and all
actions to enforce this Agreement, may be dealt with and adjudicated in the
courts of the State of New York, the courts of the United States for the
Southern District of New York, and appellate courts from any thereof, and the
Condominium hereby expressly and irrevocably submits itself to the jurisdiction
of such courts in any suit, action or proceeding arising, directly or
indirectly, out of or relating to this Agreement. The Condominium hereby agrees
that so far as is permitted under applicable law, this consent to personal
jurisdiction shall be self-operative and no further instrument or action, other
than service of process in one of the manners specified in this Agreement, or as
otherwise permitted by law, shall be necessary in order to confer jurisdiction
upon it in any such court.
(b) The Condominium hereby agrees that, provided that service of
process is effected upon it in one of the manners hereinafter specified or as
otherwise permitted by law, it irrevocably waives, to the fullest extent
permitted by law, and agrees not to assert, by way of motion, as a defense or
otherwise, (i) any objection which it may have or may hereafter have to the
laying of venue of any such suit, action or proceeding brought in any such
court, (ii) any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum, or (iii) any claim that it
is not personally subject to the jurisdiction of any such court. The Condominium
hereby agrees that, provided that service of process is effected upon it in one
of the manners specified in this Agreement or as otherwise permitted by law, a
final judgment from which it has not appealed or may not appeal in any such
suit, action or proceeding brought in any such court shall be conclusive and
binding upon it and may, so far as is permitted under applicable law, be
enforced in the courts of any state or any Federal court or in any other courts
to the jurisdiction of which it is subject, by a suit upon such judgment and
that it will not assert any defense, counterclaim, or any set-off in any such
suit upon such judgment.
6. CERTIFIED STATEMENT. The Condominium agrees that it will, at any
time and from time to time, within ten (10) days following request by 42DP,
execute and deliver to 42DP a statement certifying that this Agreement is
unmodified and in full force and effect (or if so modified, that the same is in
full force and effect as modified and stating such modifications).
7. MISCELLANEOUS. This Agreement shall be governed by and construed
in accordance with the laws of the New York. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
shall be deemed to be one and the same instrument. The headings set forth herein
are set forth herein for ease of reference only. This Agreement represents the
entire agreement between the parties hereto with respect to the subject matter
hereof. This Agreement may not be amended or modified except pursuant to a
written instrument executed and delivered by all parties hereto.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
42ND ST. DEVELOPMENT PROJECT, INC.
By:_____________________________
Name:
Title:
THE NEW YORK TIMES BUILDING
ASSOCIATION, INC.
By:____________________________
Name:
Title:
Agreed:
NYT REAL ESTATE COMPANY LLC
By:____________________________
Name:
Title:
FC LION LLC
By: FC 00xx Xxxxxx Associates, LLC, its managing member
By: RRG 8 South, Inc., its managing member
By: _______________________
Name:
Title:
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EXHIBIT A
A. JOINT OBLIGATIONS OF TENANTS
(i) Each Tenant's obligations under each Sublease, as applicable:
a. Section 7.3(c) Long-Term Maintenance Obligations (only in respect to
Tenant Obligations affecting the Common Elements)
b. Section 7.4: Compliance with Legal Requirements (only in respect
to Tenant Obligations affecting the Common Elements)
c. Section 7.5: No Waste (only in respect to Tenant Obligations
affecting the Common Elements)
d. Section 7.8: No Environmental Activity (only in respect to Tenant
Obligations affecting the Common Elements)
e. Section 7.10: Windows (only in respect to Tenant Obligations
affecting the Common Elements)
f. Section 7.11: Adverse Possession (only in respect to Tenant
Obligations affecting the Common Elements)
g. Section 8.1: Repairs (only in respect to Tenant Obligations
affecting the Common Elements)
h. Article IX: Alterations and Completion of Improvements (only in
respect to Tenant Obligations affecting the Common
Elements)
i. Article X: Insurance (only in respect to Tenant Obligations
affecting the Common Elements)
j. Article XI: Casualty Restoration (only in respect to Tenant
Obligations affecting the Common Elements)
k. Article XII: Condemnation Restoration (only in respect to Tenant
Obligations affecting the Common Elements)
i. Article XXXIV Common Elements Leaseable Space
m. Section 32.2: Amendment of Condominium Documents and compliance
therewith to Subleases
(ii) Duo Declaration
n. Article 2: DUO Compliance (only in respect to Tenant Obligations
7
affecting the Common Elements) and Opt Out
(iii) Subway Agreement (only in respect to Tenant's operation
and maintenance obligations therein)
(iv) Any other obligation of any Tenant Party in respect of
the Common Elements
8
EXHIBIT Y
FORM AMENDED AND RESTATED AGREEMENT OF LEASE
TO BE ENTERED INTO UPON CONDOMINIUMIZATION (ss. 32.1(b))
THIS AMENDED AND RESTATED AGREEMENT OF LEASE (this "LEASE") is made
the __ day of_______, 200_, by and between 42ND ST. DEVELOPMENT PROJECT, INC.
("42DP"), a subsidiary of New York State Urban Development Corporation ("UDC")
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, having an office at 000 Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as landlord (in such capacity, "LANDLORD"), and 42DP as tenant
(in such capacity, "TENANT").
W I T N E S S E T H :
WHEREAS, ESDC and The City of New York (the "CITY") have developed,
and are in the process of implementing, a rehabilitation and renewal plan for an
area of midtown Manhattan surrounding West 42nd Street between Broadway and
Eighth Avenue, known as the 00xx Xxxxxx Development Project (the "42ND STREET
PROJECT");
WHEREAS, in furtherance of the 00xx Xxxxxx Project, ESDC obtained
fee title to the Property (as hereinafter defined) pursuant to the Condemnation;
WHEREAS, promptly after ESDC obtained fee title to the Property,
ESDC conveyed (a) to Landlord an estate on limitation in the Property, and (b)
to the City a reversionary estate in the Property;
WHEREAS, Landlord and The New York Times Building LLC ("NYTB")
entered into that certain Agreement of Lease dated as of December __, 2001 (the
"INITIAL GROUND LEASE") with respect to certain land more particularly described
in EXHIBIT A attached hereto and hereby made a part hereof and all improvements
then or thereafter located thereon (collectively, the "PROPERTY");
WHEREAS, NYTB entered into (a) that certain Agreement of Sublease
dated as of December __, 2001 between NYTB and NYT Real Estate Company LLC (the
"NYTC SUBLEASE"), (b) that certain Agreement of Sublease dated as of December
__, 2001 between NYTB and FC Lion LLC (the "FC OFFICE SUBLEASE") and (c) that
certain Agreement of Sublease dated as of December __, 2001 between NYTB and FC
Lion LLC (the "FC RETAIL SUBLEASE");
WHEREAS, the NYTC Sublease, the FC Office Sublease, the FC Retail
Sublease, any New Office Subleases (as defined in the FC Office Sublease) and
any new leases entered into pursuant to Section 31.6 of any of the foregoing are
referred to herein, collectively, as the "SEVERANCE SUBLEASES";
WHEREAS, capitalized terms used herein without definition shall have
the respective meanings ascribed thereto in the Severance Subleases;
WHEREAS, NYTB submitted the Initial Ground Lease to a leasehold
condominium structure pursuant to Article 9-B of the Real Property Law of the
State of New York;
WHEREAS, pursuant to that certain Assignment and Assumption
Agreement dated as of the date hereof between NYTB and 42DP (the "ASSIGNMENT"),
NYTB assigned to Tenant all of its right, title and interest in and to the
Initial Ground Lease and the Severance Subleases;
WHEREAS, pursuant to the provisions of the Initial Ground Lease and
the Assignment, the Assignment did not cause a merger of the interests of
landlord and tenant under the Initial Ground Lease, which interests are and
shall remain separate and distinct; and
WHEREAS, Landlord and Tenant wish to amend and restate the
provisions of the Initial Ground Lease in their entirety;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
ARTICLE XXXV
AMENDMENT AND RESTATEMENT
The Initial Ground Lease is hereby amended and restated in its
entirety as set forth in this Lease.
ARTICLE XXXVI
DEMISE; TERM
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Property, for a term of_______________ (___) years, commencing on
the date hereof and ending upon the earlier of the date immediately preceding
the ninety-ninth (99th) anniversary of the Commencement Date or the date on
which this Lease shall sooner terminate as hereunder provided (such earlier
date, the "EXPIRATION DATE"), upon and subject to the covenants, agreements,
terms, provisions and limitations herein set forth, all of which covenants,
agreements, terms, provisions and limitations Landlord and Tenant covenant and
agree to perform and observe, and subject to the Severance Subleases.
ARTICLE XXXVII
TITLE TO IMPROVEMENTS
It is the intention of Landlord and Tenant that title to all
improvements hereafter constructed on the Property shall vest in Landlord, its
successors and assigns, as and when the same are constructed thereon.
ARTICLE XXXVIII
RENT
The total rental under this Lease shall be Ten and 00/100 Dollars
($10.00), receipt of which is hereby acknowledged by Landlord.
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ARTICLE XXXIX
DELIVERY OF POSSESSION
Landlord and Tenant acknowledge that possession of the Property has
been delivered to Tenant.
ARTICLE XL
NO ASSIGNMENT, TRANSFER, SUBLEASE OR ENCUMBRANCE
Neither Landlord nor Tenant shall assign or transfer this Lease, nor
sublease the whole or any part of the Property, nor subject this Lease to any
lien, claim, mortgage or encumbrance (other than Permitted Encumbrances), in any
manner, nor sell, assign, convey or otherwise dispose of the Property or any
part thereof, during the term of this Lease, in any manner, to any Person;
PROVIDED, HOWEVER, that (a) portions of the Property may be subleased pursuant
to a Severance Sublease, (b) Landlord or Tenant may transfer its interest in
this Lease to any Governmental Authority so long as such transfer does not and
will not result in a decrease in any of the rights and benefits of a subtenant
under a Severance Sublease under any of the Project Documents or any XXX Project
Agreement (as defined in the NYTC Sublease) or an increase in the obligations,
liabilities or costs of a subtenant under a Severance Sublease under any of the
Project Documents or any XXX Project Agreement and (c) nothing herein shall be
construed to prohibit or restrict any assignment, transfer, sublease or
encumbrance of a Severance Sublease pursuant to the terms thereof.
ARTICLE XLI
AMENDMENTS, MODIFICATIONS, TERMINATIONS, ETC.
This Lease may not be amended, changed, modified, terminated,
cancelled or discharged in whole or in part, and no oral or executory agreement
shall be effective to amend, change, modify, terminate, cancel or discharge in
whole or in part this Lease or any obligations under this Lease, unless (in any
such case) such agreement is set forth in a written instrument executed by
Tenant, Landlord and each tenant under a Severance Sublease and has been
consented to in writing by any then-existing Recognized Mortgagee (as defined in
the Severance Subleases) as applicable.
ARTICLE XLII
NOTICES
Each written notice, demand, request or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given and received (a) if personally delivered with proof of delivery thereof
(any notice or communication so delivered being deemed to have been received at
the time delivered on a Business Day or, if not a Business Day, the next
succeeding Business Day), or (b) by nationally recognized overnight courier (any
notice or communication so sent being deemed to have been received on the first
succeeding Business Day subsequent to the day so sent), addressed to the
respective parties as follows:
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if to Landlord:
42nd St. Development Project, Inc.
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with copies to:
(i) New York City Economic Development Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
(ii) New York City Law Department
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief, Economic Development Division
(iii) Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq. (3578/13)
(iv) Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx, Esq.
(v) New York State Urban Development Corporation
d/b/a Empire State Development Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: 00xx Xxxxxx Development Project, Inc.
if to Tenant:
42nd St. Development Project, Inc.
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with copies to:
(vi) New York City Economic Development Corporation
000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: President
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(vii) New York City Law Department
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief, Economic Development Division
(viii) Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq. (3578/13)
(ix) Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx, Esq.
(x) New York State Urban Development Corporation
d/b/a Empire State Development Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: 00xx Xxxxxx Development Project, Inc.
(xi) [each severance tenant]
(xii) [each Recognized Mortgage]
or to such other address as may be specified by written notice sent in
accordance herewith. No notice, demand, request or other communication hereunder
shall be effective unless given as aforesaid.
ARTICLE XLIII
CHOICE OF LAW; SUCCESSORS AND ASSIGNS; SEVERABILITY
(a) THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES
OF THE CONFLICTS OF LAWS THEREOF.
(b) The terms of this Lease are and shall be binding upon and inure
to the benefit of Tenant and Landlord and their respective successors and
assigns.
(c) If any one or more of the provisions of this Lease shall be
ruled invalid by any court of competent jurisdiction, the invalidity of such
provision(s) shall not affect any of the remaining provisions hereof, but this
Lease shall be construed and enforced as if such illegal or invalid provision
had not been contained herein.
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ARTICLE XLIV
COUNTERPARTS
This Lease may be simultaneously executed in several counterparts.
each of which shall be an original and all of which shall constitute but one and
the same instrument.
ARTICLE XLV
NON-RECOURSE
All covenants, stipulations, promises, agreements and obligations of
Tenant or Landlord, as applicable, contained in this Lease shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of Tenant and
Landlord, as the case may be, and not of any member, director, officer, employee
or agent of Tenant or Landlord in his individual capacity, and no recourse shall
be had for the payment of any amounts hereunder against any member, director,
officer, employee or agent of Tenant or Landlord. In addition, in the
performance of the agreements of Landlord herein contained, any obligation it
may incur for the payment of money shall not create a debt of the State of New
York or of The City of New York and neither the State of New York nor The City
of New York shall be liable on any obligation so incurred, but any such
obligation shall be payable solely out of the lease rentals, revenues and
receipts derived from or in connection with the Property and payable to Landlord
by Tenant under the Lease Agreement.
ARTICLE XLVI
NO MERGER
There shall be no merger of this Lease or of the leasehold estate
hereby created with the fee estate in the Property by reason of the fact that
the same Person acquires or holds, directly, this Lease or the leasehold estate
hereby created or any interest herein or in such leasehold estate as well as the
fee estate in the Property or any interest in such fee estate.
ARTICLE XLVII
ENTIRE AGREEMENT
This Lease and the other Project Documents contain the entire
agreement between the parties hereto with respect to the subject matter hereof
and all prior negotiations and agreements are merged therein.
{BALANCE OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease
as of the day and year first above written.
42ND ST. DEVELOPMENT PROJECT,
INC., as Landlord
By: _____________________
Name:
Title:
00XX XX. DEVELOPMENT PROJECT,
INC., as Tenant
By: _____________________
Name:
Title:
Y-7
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 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.
Being the property located at and known as Block 1012, Xxxx 0, 0, 0, 00,
00, 00, 00, 00, 00 and part of 15 on the Tax Assessment Map of the County of New
York.
EXHIBIT Z
FORM OF MEMORANDUM OF LEASE (ss. 33.1)
MEMORANDUM OF AGREEMENT OF LEASE
By and Between
42ND ST. DEVELOPMENT PROJECT, INC.,
as Landlord
and
THE NEW YORK TIMES BUILDING LLC,
as Tenant
PREMISES:
Block: 1012
Lots: 1, 5, 8, 14, 53, 59, 61, 62, 63 and part of 15
Borough of Manhattan
County, City and State of New York
RECORD AND RETURN TO:
Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxx Xxxxxxxx, Esq.
MEMORANDUM OF AGREEMENT OF LEASE
MEMORANDUM OF AGREEMENT OF LEASE (this "MEMORANDUM") dated as of
December __, 2001, by and between 42ND ST. DEVELOPMENT PROJECT, INC.
("LANDLORD"), having an office at 000 Xxxxx Xxxxxx, 00xx Xxxxx. Xxx Xxxx, Xxx
Xxxx 00000, and THE NEW YORK TIMES BUILDING LLC, a New York limited liability
company, having an office at c/o The New York Times Company, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx. Xxx Xxxx 00000 ("TENANT").
W I T N E S S E T H :
WHEREAS, New York State Urban Development Corporation d/b/a Empire
State Development Corporation ("ESDC") and The City of New York (the "CITY")
have developed, and are in the process of implementing, a rehabilitation and
renewal plan for an area of midtown Manhattan surrounding West 42nd Street
between Broadway and Eighth Avenue, known as the 00xx Xxxxxx Development Project
(the "42ND STREET PROJECT");
WHEREAS, in furtherance of the 00xx Xxxxxx Project, ESDC has agreed
to commence proceedings to obtain fee title to the Improvements (as hereinafter
defined) pursuant to a condemnation undertaken pursuant to the Eminent Domain
Procedure Law of the State of New York, as amended from time to time;
WHEREAS, promptly after ESDC obtains fee title to the Improvements,
ESDC will convey (a) to Landlord an estate on limitation in the Improvements,
and (b) to the City a reversionary estate in the Improvements;
WHEREAS, Landlord and Tenant are parties to that certain Agreement
of Lease (the "LEASE"), dated as of December __, 2001, pursuant to which
Landlord leased to Tenant, and Tenant hired from Landlord, those certain plots,
pieces and parcels of land described in EXHIBIT A attached hereto and made a
part hereof (including all easements, appurtenances or other rights pertaining
thereto, the "LAND"), together with all the buildings and other improvements and
appurtenances of every kind and description now located or hereafter constructed
on the Land, including any equipment and all alterations and replacements
thereof and additions thereto (collectively, the "IMPROVEMENTS"), all as more
fully described in the Lease; and
WHEREAS, in accordance with Sections 291-c and 294(7) of the New
York State Real Property Law and Section 30.4(a) of the Lease, the parties
desire to record a memorandum summarizing certain (but not all) of the
provisions, covenants and conditions set forth in the Lease.
Z-2
NOW, THEREFORE, Landlord and Tenant declare as follows:
1. The name and address of Landlord is:
42nd St. Development Project, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
2. The name and address of Tenant is:
THE NEW YORK TIMES BUILDING LLC
c/o The New York Times Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
3. The premises demised under the Lease is the Land and the Improvements.
4. The term of the Lease commenced on December __, 2001 (the "COMMENCEMENT
DATE") and ends on the day before the ninety-ninth (99th) anniversary of
the Commencement Date (unless sooner terminated in accordance with the
terms, covenants or conditions of the Lease or pursuant to law) (the
"EXPIRATION DATE").
5. Pursuant to and in accordance with the Lease, Tenant has an option to
purchase, on or before the Expiration Date, the interests of both the
Landlord and The City of New York in and to the Land and the Improvements.
6. This Memorandum is subject to all of the terms, conditions and provisions
of the Lease and shall not be construed to vary or otherwise affect such
terms, conditions and provisions or the rights and obligations of the
parties thereto. In the event of any conflict between the terms,
conditions and provisions of the Lease and this Memorandum, the terms,
conditions and provisions of the Lease shall control.
Z-3
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Memorandum on the date hereinabove first set forth.
42ND ST. DEVELOPMENT PROJECT, INC.
By: ______________________________
Name:
Title:
THE NEW YORK TIMES BUILDING LLC
By: NYT Real Estate Company LLC, member
By: __________________________
Name:
Title: Manager
By: FC Lion LLC, member
By: FC 0xxx Xxxxxx Associates, LLC,
its managing member
By: RRG 8 South, Inc., its managing
member
By:_______________________
Name:
Title:
X-0
XXXXXXXXXXXXXXX
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of December, in the year 2001. 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 whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
__________________________
Notary Public
Commission Expires
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of December, in the year 2001, 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 whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
__________________________
Notary Public
Commission Expires
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of December, in the year 2001, 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 whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
__________________________
Notary Public
Commission Expires
