EXHIBIT 10.15
FIRST AMENDMENT TO AGREEMENT TO ENTER LEASE OF REAL PROPERTY
Landmark at Eastview, Tarrytown, New York
This First Amendment to Agreement to Enter Lease of Real Property (this
"Amendment") is made as of the 23rd day of June, 2004 (the "Effective Date")
between Eastview Holdings LLC, a Delaware limited liability company
("Eastview"), and Xxxxxxxx Property Advisors, Inc., a California corporation
("BPA").
RECITALS:
WHEREAS, Eastview and BPA entered into an Agreement to Enter Lease of Real
Property (the "Original Agreement"), dated as of June 21, 2004; and
WHEREAS, Eastview and BPA had certain obligations with respect to the
necessity to agree upon a final form of Ground Lease (as defined in the Original
Agreement) to be executed at the Lease Closing (as defined in the Original
Agreement); and
WHEREAS, Eastview and BPA desire to memorialize their agreement with
respect to such form of Ground Lease and amend certain other provisions of the
Original Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS. Capitalized terms not otherwise defined herein shall
have the respective meanings ascribed thereto in the Original Agreement.
2. FORM OF GROUND LEASE. Attached hereto as Exhibit A is the form of
Ground Lease to be executed by Eastview, as landlord and BPA, as tenant on the
Lease Closing Date in accordance with the terms and provisions of the Original
Agreement. Notwithstanding the requirement in the Original Agreement to agree
upon such form of Ground Lease prior to 12:00 P.M. New York, New York, time,
Eastview and BPA hereby acknowledge that both parties desired to extend such
time period to accommodate the final negotiations of the parties to agree upon
such form and that notwithstanding any delay in the parties' agreement with
respect to such form, Eastview and BPA acknowledge that the obligations of both
parties set forth in Section 1.2 of the Original Agreement are satisfied.
3. AMENDMENTS.
(A) The following text is hereby added as the last sentence in
Section 7.1.8 of the Original Agreement:
For purposes of this Agreement, "Biotechnology Uses" shall mean research,
laboratory, office, storage and related facilities by users engaged in
biotechnology research, development, limited manufacturing incidental to the
production of small amounts of products in the course of development of new
biotechnological products, but exclusive of manufacturing on a large-scale basis
of products for the retail/consumer market, and other related commercial
operations.
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(B) The following text is hereby added as a new Section 1.3 in the
Original Agreement:
1.3 Income Tax Matters. Notwithstanding anything to the contrary in this
Agreement or any other agreement, Eastview and BPA acknowledge and agree that
for Federal, state and local income tax purposes: (a) this Agreement constitutes
an agreement of purchase and sale of the Leased Land and is intended to transfer
ownership of the Leased Land and constitute a sale thereof as of the Lease
Closing; (b) the Initial Rent constitutes the purchase price of the Leased Land;
and (c) Eastview and BPA shall report on their respective income tax returns the
transactions undertaken pursuant to this Agreement in a manner consistent with
the treatment described in (a) and (b). Eastview and BPA acknowledge that
neither party hereunder is responsible for the treatment of the transaction set
forth in this Agreement as contemplated under this Section 1.3.
4. REFERENCES; RATIFICATION. All references in the Original Agreement to
the "Agreement" shall be deemed to be references to the Original Agreement as
modified by this Amendment. Except as set forth herein and contemplated hereby,
the Original Agreement shall remain unmodified and in full force and effect, and
the parties hereto ratify and confirm all the terms, conditions and provisions
thereof.
5. GOVERNING LAW. The validity, construction, performance and
enforceability of this Amendment shall be governed in all respects by the laws
of the State of New York, without reference to the choice of law principles
thereof.
6. COUNTERPARTS. This Amendment may be executed simultaneously in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Execution and delivery of
this Amendment by exchange of facsimile copies bearing the facsimile signatures
of the respective parties hereto shall constitute a valid and binding execution
and delivery of this Amendment by such parties. Such facsimile copies shall
constitute enforceable original documents.
7. CONSTRUCTION. This Amendment, including any exhibits, schedules and
amendments, has been negotiated at arms' length and between persons
sophisticated and knowledgeable in the matters dealt with in this Amendment.
Each party has been represented by experienced and knowledgeable legal counsel.
Accordingly, any rule of law or legal decision that would require any
interpretation of any ambiguities in this Amendment against the party that has
drafted it is not applicable and is waived. The provisions of this Amendment
shall be interpreted in a reasonable manner to effect the purposes of the
parties and this Amendment.
[Signature Page Follows]
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SIGNATURE PAGE TO
FIRST AMENDMENT TO AGREEMENT TO ENTER LEASE OF REAL PROPERTY
BY AND BETWEEN
EASTVIEW HOLDINGS LLC
AND
XXXXXXXX PROPERTY ADVISORS, INC.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
Effective Date.
EASTVIEW: BPA:
EASTVIEW HOLDINGS LLC XXXXXXXX PROPERTY ADVISORS, INC.
By /s/ XXXXX X. XXXXX By /s/ XXXX X. GOLD
-------------------------------- -----------------------------
Name: Xxxxx X. Xxxxx Xxxx X. Gold
Title: Senior Vice President Chairman, President and Chief
Executive Officer
EXHIBIT A
FINAL FORM OF GROUND LEASE
GROUND LEASE
DATED AS OF , 2004
---------- --
BETWEEN
EASTVIEW HOLDINGS LLC,
A DELAWARE LIMITED LIABILITY COMPANY,
AS LANDLORD
AND
----------------------------------------------,
A
----------------------------------------
AS TENANT
TABLE OF CONTENTS
ARTICLE 1. Definitions........................................................3
ARTICLE 2. LEASING OF REAL PROPERTY...........................................9
2.1 LEASE.......................................................9
2.2 CONDITION OF REAL PROPERTY..................................9
2.3 IMPROVEMENTS AND PERSONAL PROPERTY..........................9
2.4 MEMORANDUM.................................................10
2.5 INCOME TAX MATTERS.........................................10
ARTICLE 3. Term..............................................................10
ARTICLE 4. Rent..............................................................10
4.1 CALCULATION AND PAYMENT OF RENT............................10
4.2 INSURANCE; TAXES AND ASSESSMENTS...........................11
ARTICLE 5. Use AND DEVELOPMENT...............................................11
5.1 USE........................................................11
5.2 EXCLUSIVE TENANT CONTROL...................................11
5.3 DEVELOPMENT................................................11
5.4 LIMITATIONS ON USE.........................................12
ARTICLE 6. Liens.............................................................13
6.1 LANDLORD OBLIGATIONS.......................................13
6.2 TENANT OBLIGATIONS.........................................13
ARTICLE 7. Utilities.........................................................13
7.1 TENANT OBLIGATED TO PAY UTILITY CHARGES....................13
7.2 UTILITY EASEMENTS..........................................14
ARTICLE 8. Insurance.........................................................15
ARTICLE 9. Taxes and Assessments.............................................15
9.1 TENANT OBLIGATED TO PAY TAXES AND ASSESSMENTS..............15
9.2 TAX INVOICES...............................................16
9.3 TAXES ON TENANT'S PERSONAL PROPERTY........................16
9.4 DEFINITION OF "REAL ESTATE TAXES"..........................17
9.5 FEES AND EXACTIONS.........................................17
9.6 TENANT'S RIGHT TO CONTEST TAXES AND OTHER CHARGES..........17
ARTICLE 10. EVENTS AFFECTING THE CONDITION OF THE REAL PROPERTY..............17
10.1 LANDLORD NOT OBLIGATED TO REPAIR AND MAINTAIN
REAL PROPERTY..............................................17
10.2 ALTERATIONS AND IMPROVEMENTS...............................17
10.3 CORRECTION OF DANGEROUS CONDITIONS.........................18
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10.4 DAMAGE.....................................................18
10.5 CONDEMNATION...............................................18
ARTICLE 11. IndemnitIES......................................................18
11.1 TENANT'S DUTY..............................................18
11.2 LIMITATIONS ON INDEMNITY...................................19
11.3 SURVIVAL OF INDEMNITY......................................20
ARTICLE 12. Assignment.......................................................20
12.1 ASSIGNMENT BY LANDLORD.....................................20
12.2 TENANT'S RIGHT TO SUBLEASE.................................20
12.3 TENANT'S RIGHT TO MORTGAGE.................................20
12.4 NOTICES TO LEASEHOLD MORTGAGEE.............................21
12.5 NOTICE TO LEASEHOLD MORTGAGEE OF TENANT EVENT OF
DEFAULT....................................................21
12.6 PROCEDURE ON TENANT EVENT OF DEFAULT.......................22
12.7 ACQUISITION BY LEASEHOLD MORTGAGEE.........................23
12.8 NEW GROUND LEASE...........................................23
12.9 NO MODIFICATIONS WITHOUT CONSENT...........................23
12.10 BENEFITS...................................................24
12.11 ADDITIONAL DOCUMENTS.......................................24
12.12 NO LANDLORD LIENS..........................................24
ARTICLE 13. DEFAULTS AND REMEDIES............................................24
13.1 TENANT EVENTS OF DEFAULT...................................24
13.2 LANDLORD REMEDIES..........................................24
13.3 LANDLORD EVENTS OF DEFAULT.................................25
13.4 TENANT REMEDIES............................................25
13.5 EXCULPATION................................................26
ARTICLE 14. Estoppel Certificates............................................26
ARTICLE 15. Notices..........................................................26
15.1 NOTICE ADDRESSES...........................................26
15.2 CERTAIN NOTICE OBLIGATIONS.................................27
ARTICLE 16. intentionally omitted............................................28
ARTICLE 17. INTENTIONALLY OMITTED............................................28
ARTICLE 18. subdivision efforts and sale of real property....................28
18.1 PURSUIT OF MAP EVENTS......................................28
18.2 FORBEARANCE FROM PURSUIT OF SITE PLAN APPROVALS............30
18.3 EASEMENTS..................................................32
18.4 CONVEYANCE OF PARCELS FOLLOWING APPROVAL OF
SUBDIVISION MAPS...........................................33
18.5 FURTHER ASSURANCES.........................................36
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ARTICLE 19. Miscellaneous....................................................36
19.1 SUCCESSORS AND ASSIGNS.....................................36
19.2 CAPTIONS...................................................36
19.3 SEVERABILITY...............................................37
19.4 CHOICE OF LAW..............................................37
19.5 ENTIRE AGREEMENT...........................................37
19.6 COUNTERPARTS...............................................37
19.7 LANDLORD/TENANT RELATIONSHIP...............................37
19.8 WAIVER.....................................................37
19.9 PRONOUNS AND SINGULAR/PLURAL...............................37
19.10 TIME OF ESSENCE............................................37
19.11 FAIR MEANING...............................................38
19.12 SECTION REFERENCES.........................................38
19.13 GROUND LEASE REVIEWED......................................38
19.14 OBLIGATIONS AS COVENANTS...................................38
19.15 ADDITIONAL DOCUMENTS.......................................38
19.16 WAIVER OF JURY TRIAL.......................................38
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TABLE OF EXHIBITS
EXHIBIT A - 1 Greenburgh Core Campus, MSG Parcel and Residential Parcel
EXHIBIT A - 2 Mount Pleasant Core Campus, Home Depot Parcel and Retail Parcel
EXHIBIT B Legal Description of Real Property
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TABLE OF SCHEDULES
SCHEDULE 1 Existing Exceptions
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GROUND LEASE
This GROUND LEASE is entered into as of this ____ day of _________, 2004
(the "EFFECTIVE DATE") by and between Eastview Holdings LLC, a Delaware limited
liability company ("LANDLORD"), and________________________, a ________________
limited liability company ("TENANT").
RECITALS:
WHEREAS, Landlord is the owner of fee title to the following lands
(collectively, the "SUBJECT LAND"):
(1) Greenburgh Core Campus. The land in the Town of Greenburgh, New
York, shown as Lot 2 on the Preliminary Greenburgh Subdivision Site Plan
prepared by Xxxx Xxxxx Consulting last dated April 13, 3004 (the "GREENBURGH
SUBDIVISION PLAN") which subdivision plan is attached hereto as EXHIBIT A-1 and
made a part hereof. Landlord has submitted the Greenburgh Subdivision Plan to
the appropriate Governmental Authority in the Town of Greenburgh in order to
establish said property, in accordance with applicable laws, as consisting
exclusively of separate legally subdivided lands distinct from the lands
described in clauses (2) and (3) below. The approval of said plan subject to and
in accordance with Article 18 hereof sometimes is referred to herein as the
"GREENBURGH MAP EVENT". Said land, as the boundaries thereof may be adjusted in
connection with the Greenburgh Map Event, sometimes is referred to herein as the
"GREENBURGH CORE CAMPUS".
(2) MSG Parcel. The land in the Town of Greenburgh, New York shown
as Lot 1 on the Greenburgh Subdivision Plan. Said land, as the boundaries
thereof may be adjusted in connection with the Greenburgh Map Event, sometimes
is referred to herein as the "MSG PARCEL".
(3) Residential Parcel. The land in the Town of Greenburgh, New York
shown as Lot 3 on the Greenburgh Subdivision Plan. Said land is to be zoned for
residential development. Said land, as the boundaries thereof may be adjusted in
connection with the Greenburgh Map Event, sometimes is referred to herein as the
"RESIDENTIAL PARCEL".
(4) Mount Pleasant Core Campus. The land in the Town of Mount Pleasant,
New York, shown as Lot 1 on the Mount Pleasant Full Development Plan (Option B),
prepared by Xxxx Xxxxx Consulting dated June 8, 2004 (the "MOUNT PLEASANT
SUBDIVISION PLAN"), which subdivision plan is attached hereto as EXHIBIT A-2 and
made a part hereof (the "MOUNT PLEASANT CORE CAMPUS"). Landlord intends to
submit the Mount Pleasant Subdivision Plan and related application materials to
the appropriate Governmental Authority in the Town of Mount Pleasant in order
to:
(a) establish said property, in accordance with the applicable laws, as
consisting exclusively of separate legally subdivided lands distinct from the
lands described in clause (5)
and clause (6) below (or subsets of land consisting exclusively of distinct
legal parcels which together comprise such groupings of land), and
(b) cause the delineation and mitigation of certain wetlands substantially
in accordance with the delineation of such wetlands as depicted on EXHIBIT A-2
and issuance of a related wetlands permit, and
(c) obtain site plan approval to permit demolition of a certain
existing parking lot area located on the Retail Parcel (as defined below) as
depicted on EXHIBIT A-2, the demolition of sundry buildings on the Mount
Pleasant Core Campus, and the construction of a new parking area on the Mount
Pleasant Core Campus as generally shown in the area designated on EXHIBIT A-2
and to permit other immaterial site adjustments in accordance with Article 18 as
may be required during the review process in Mount Pleasant. The approval of
said plan in accordance with Article 18 hereof sometimes is referred to herein
as the "MOUNT PLEASANT MAP EVENT", and the Mount Pleasant Map Event and the
Greenburgh Map Event sometimes are referred to herein collectively as the "MAP
EVENTS".
(5) Home Depot Parcel. The land in the Town of Mount Pleasant,
New York shown as Lot 2 on the Mount Pleasant Subdivision Plan, which land is
already zoned for retail development and has site plan approval. Said land, as
the boundaries thereof may be adjusted in connection with the Mount Pleasant Map
Event, sometimes is referred to herein as the "HOME DEPOT PARCEL".
(6) Retail Parcel. The land in the Town of Mount Pleasant, New
York shown as Lot 3 on the Mount Pleasant Subdivision Plan, which land is
already zoned for retail development. Said land, as the boundaries thereof may
be adjusted in connection with the Mount Pleasant Map Event, sometimes is
referred to herein as the "RETAIL PARCEL".
WHEREAS, Landlord and Tenant are the parties to that certain Agreement to
Enter Lease of Real Property dated as of June 21, 2004 concerning the Subject
Land (the "EXECUTORY LEASE AGREEMENT");
WHEREAS, Landlord and Tenant now desire to enter into this Ground Lease in
order to comply with their respective obligations under the Executory Lease
Agreement; and
WHEREAS, Landlord and Tenant desire and intend that this Ground Lease
constitute a sale of the Real Property by Landlord to Tenant as of the Effective
Date.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby enter into this
Ground Lease upon the terms and conditions set forth herein.
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ARTICLE 1.
DEFINITIONS
"AFFILIATE" when used with respect to a Person, means (i) a Person which,
directly or indirectly, controls, is controlled by or is under common
control with such Person or (ii) a direct or indirect owner, officer,
director, employee or trustee of a Person which serves in a similar
capacity with respect to, such Person. For the purpose of this definition,
control of a Person that is not an individual shall mean the power
(through ownership of more than 50% of the voting equity interests of such
Person or through any other means) to direct the management and policies
of a Person.
"APPLICATION" means any agreement, application, certificate, document, or
submission (or amendment of any of the foregoing): (a) necessary or
appropriate for any construction this Ground Lease allows, including any
application for any building permit, certificate of occupancy, utility
service or hookup, easement, covenant, condition, restriction, subdivision
plat, or such other instrument as Tenant may from time to time reasonably
request for such construction; (b) to allow Tenant to obtain any
abatement, deferral, or other benefit otherwise available for real
property taxes; (c) if and to the extent (if any) this Ground Lease
permits, to allow Tenant to change the use or zoning of the Real Property;
(d) to enable Tenant from time to time to seek any Approval or to use and
operate the Real Property in accordance with this Ground Lease; or (e)
otherwise reasonably necessary and appropriate to permit Tenant to realize
the benefits and burdens of the ownership of the Real Property under this
Ground Lease.
"APPROVAL" means any and all licenses, permits (including building,
demolition, alteration, use, and special permits), approvals, consents,
certificates (including certificate(s) of occupancy), rulings, variances,
authorizations, or amendments to any of the foregoing as shall be
necessary or appropriate under any law for the commencement, performance,
or completion of any construction, or the zoning, rezoning (to the extent
this Ground Lease allows), use, occupancy, maintenance, or operation of
the Real Property.
"XXXX OF SALE AND ASSIGNMENT AGREEMENT" has the meaning given in Section
2.3 of this Ground Lease.
"BIOTECHNOLOGY USES" means research, laboratory, office, storage and
related facilities by users engaged in biotechnology research,
development, limited manufacturing incidental to the production of small
amounts of products in the course of development of new biotechnological
products, but exclusive of manufacturing on a large-scale basis of
products for the retail/consumer market, and other related commercial
operations.
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"CLAIMS" has the meaning given in Section 11.1.1 of this Ground Lease.
"CONTEST" means appropriate legal proceedings diligently conducted in good
faith, to dispute: the amount or validity of any real property taxes or
prohibited lien; the valuation, assessment, or reassessment (whether
proposed, phased, or final) of the Real Property for real property taxes;
the amount of any real property tax; the validity of any law or its
application to the Real Property; the terms or conditions of, or
requirements for, any Approval; or the validity or merit of any claim
against which this Ground Lease requires Tenant to indemnify Landlord;
provided, however, in each case, in the event that a portion of the
Subject Land (other than the Real Property) is in danger of being sold,
forfeited, terminated, cancelled or lost in Landlord's reasonable
discretion, Tenant shall furnish security or provide other assurances
reasonably satisfactory to Landlord to protect Landlord's interests in the
Subject Land against such danger upon Landlord's reasonable request
therefor.
"DEFAULT RATE" means, on any relevant date, twelve percent (12%) per
annum.
"EASEMENTS" means, the easements entered into at the Lease Closing
pursuant to the Executory Lease Agreement or as may otherwise be entered
into in accordance with Article 18 of this Ground Lease.
"EFFECTIVE DATE" has the meaning given in the preamble to this Ground
Lease.
"ENVIRONMENTAL, HEALTH AND SAFETY LAWS" means any and all federal, state
or local laws, ordinances, rules, decrees, orders, regulations, court
decisions and other authority relating to hazardous substances, hazardous
materials, hazardous waste, toxic substances, materials or wastes,
environmental conditions on, under or about the Project or the Subject
Land, or otherwise, or soil and ground water conditions, including, but
not limited to, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq., the Federal Water Pollution Control Act of 1972, 33 U.S.C. Section
1251, et. seq., the Safe Drinking Water Act, 42 U.S.C. Section 300f, et
seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601, et seq.,
the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section
136, et seq., the Federal Hazardous Substances Control Act, 15 U.S.C.
Section 1261, et seq., the Noise Control Act of 1972, 42 U.S.C. Section
4901, et seq., the Occupational Safety and Health Act, 29 U.S.C. Section
651, et seq., the American with Disabilities Act, 42 U.S.C. Section 12101,
et seq., any amendments to the foregoing, and any similar statutory or
common federal, state or local laws, ordinances, rules, decrees, orders or
regulations.
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"ESCROW AGENT" has the meanings given in Section 4.1.2 of this Ground
Lease.
"EXECUTORY LEASE AGREEMENT" has the meaning given in the preamble to this
Ground Lease.
"EXISTING EXCEPTIONS" means any liens or other exceptions set forth on
SCHEDULE 1 attached hereto.
"GOVERNMENTAL AUTHORITY" means each and every governmental agency,
authority, bureau, department, quasi-governmental authority, body, or
other entity or instrumentality having or claiming jurisdiction over the
Real Property (or any activity this Ground Lease allows), including the
United States federal government, the state and county government and
their subdivisions and municipalities, and all other applicable government
agencies, authorities, and subdivisions thereof. "Governmental Authority"
shall also include any planning commission, board of standards and
appeals, department of buildings, city council, zoning board of appeals,
or planning board or commission having or claiming jurisdiction over the
Real Property or any activities on or at the Real Property.
"GREENBURGH CORE CAMPUS" has the meaning given in the recitals to this
Ground Lease.
"GREENBURGH MAP EVENT" has the meaning given in the recitals to this
Ground Lease.
"GREENBURGH SITE PLAN APPROVAL" means that certain Resolution adopted by
the Town Board of the Town of Greenburgh, New York, as of October 2, 2001,
which, among other things, permits the development described therein upon
the Greenburgh Core Campus (in addition to those improvements presently
existing on the Greenburgh Core Campus), subject to all terms, conditions
and requirements thereof.
"GREENBURGH SUBDIVISION PLAN" has the meaning given in the recitals of
this Ground Lease.
"GROUND LEASE" means this Ground Lease, as the same may be amended from
time to time in accordance with the terms hereof.
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"HAZARDOUS MATERIALS" means any chemical, compound, material, substance or
other matter that: (a) is defined as a hazardous substance, hazardous
material, hazardous waste or toxic substance, material or waste under any
Environmental, Health and Safety Law, including, but not limited to, those
substances, materials or wastes regulated now or in the future under any
statutes or regulations; (b) is controlled or governed by any
Environmental, Health and Safety Law or gives rise to any reporting,
notice or publication requirements thereunder, or gives rise to any
liability, responsibility or duty on the part of Tenant or Landlord with
respect to any third person hereunder; or (c) is flammable or explosive
material, oil or any other petroleum-based substance, freon, friable
asbestos, urea formaldehyde, radioactive material, nuclear medicine
material, drug, vaccine, bacteria, virus, hazardous waste, toxic
substance, or related injurious or potentially injurious material (by
itself or in combination with other materials).
"HOLDBACK AMOUNT" has the meaning given in Section 4.1.2 of this Ground
Lease.
"HOME DEPOT PARCEL" has the meaning given in the recitals of this Ground
Lease.
"IMPROVEMENTS" has the meaning given in Section 2.3 of this Ground Lease.
"LANDLORD" has the meaning given in the preamble to this Ground Lease.
"LANDLORD EVENT OF DEFAULT" has the meaning given in Section 13.3 of this
Ground Lease.
"LAWS" has the meaning given in Section 5.4.1 of this Ground Lease.
"LEASEHOLD MORTGAGE" has the meaning given in Section 12.3 of this Ground
Lease.
"LEASEHOLD MORTGAGEE" has the meaning given in Section 12.3 of this Ground
Lease.
"MAP EVENTS" has the meaning given in the recitals to this Ground Lease.
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"MOUNT PLEASANT CORE CAMPUS" has the meaning given in the recitals to this
Ground Lease.
"MOUNT PLEASANT MAP EVENT" has the meaning given in the recitals to this
Ground Lease.
"MSG PARCEL" has the meaning given in the recitals to this Ground Lease.
"OFFICIAL RECORDS" means the appropriate county records for
memorialization of interests in real property.
"OUTSIDE DATE" has the meaning given in Section 4.1.2 of this Ground
Lease.
"PARTY" means either Landlord or Tenant.
"PARTIES" means both Landlord and Tenant.
"PERMITTED EXCEPTIONS" has the meaning given in Section 2.1 of this Ground
Lease.
"PERSON" means any corporation, partnership, limited liability company,
unincorporated association, trust, other entity or natural person.
"PROJECT" means the Real Property, Tenant's rights under the Easements,
the Improvements and the additional property interests conveyed pursuant
to the Xxxx of Sale and Assignment Agreement.
"REAL PROPERTY" means the Greenburgh Core Campus and the Mount Pleasant
Core Campus, together with Landlord's Interest in all rights-of-way or
use, easements, servitudes, licenses, tenements, driveways, approaches,
pavements, hereditaments,
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curbs and street front privileges and appurtenances thereunto belonging as
more particularly described on Exhibit B attached hereto and made a part
hereof.
"REMEDIES NOTICE" has the meaning given in Section 12.5.1.
"RENT" has the meaning given in Section 4.1 of this Ground Lease.
"RESIDENTIAL PARCEL" has the meaning given in the recitals to this Ground
Lease.
"RETAIL PARCEL" has the meaning given in the recitals to this Ground
Lease.
"SUBJECT LAND" has the meaning given in the recitals to this Ground Lease.
"TENANT" has the meaning given in the preamble to this Ground Lease.
"TENANT EVENT OF DEFAULT" has the meaning given in Section 13.1 of this
Ground Lease.
"TENANT LEASEHOLD ESTATE" has the meaning given in Section 12.3 of this
Ground Lease.
"TENANT PARTIES" has the meaning given in Section 11.1.2 of this Ground
Lease.
"TERM" has the meaning given in Article 3 of this Ground Lease.
"UTILITY EASEMENTS" has the meaning given in Section 7.2 of this Ground
Lease.
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ARTICLE 2.
LEASING OF REAL PROPERTY.
2.1 LEASE. Landlord hereby leases the Real Property to Tenant, and Tenant
hereby leases the Real Property from Landlord, upon the terms and conditions set
forth in this Ground Lease. Said lease shall convey to Tenant a leasehold
interest in the Real Property pursuant to this Ground Lease which shall not be
subject to any exceptions to title other than the following (the "PERMITTED
EXCEPTIONS"): (a) the Existing Exceptions; (b) the Leases (as defined in the
Executory Lease Agreement); (c) the rights of Landlord under this Ground Lease;
and (d) any other exceptions to title approved in writing by Tenant. Landlord
covenants that, subject to the exceptions, reservations, terms and conditions of
this Ground Lease, at all times throughout the Term, and so long as Tenant is
not in default hereunder, Tenant's quiet enjoyment of the Real Property shall
not be disturbed by any act of Landlord or of anyone acting by, through or under
Landlord, excepting only those easements, encumbrances or defects of title
created or suffered by Tenant and the Permitted Exceptions.
2.2 CONDITION OF REAL PROPERTY.2.2.1 Condition. The Real Property is being
leased in an "AS IS" condition and on a "WHERE IS AND WITH ALL
FAULTS" basis as of the Effective Date. By entering into this
Ground Lease, Tenant will assume the risk of, and liability
associated with, (a) the condition of the Real Property,
including, but not limited to, known or unknown defects in the
structural or other physical condition of the Real Property,
including, without limitation, any conditions resulting in the
investigation, removal or remediation of any releases or
threatened releases of Hazardous Materials, and/or (b) the
compliance of the Real Property, or lack of compliance, with
any law or regulation applicable thereto and all ordinances,
rules, regulations, rulings and orders promulgated or adopted
pursuant thereto, including, without limitation, the
Environmental, Health and Safety Laws.
2.2.2 Survival of Obligations. Notwithstanding the foregoing Section
2.2, nothing in such Section 2.2 shall relieve Landlord from
any obligations of Landlord under the Executory Lease
Agreement which by the terms thereof survive the "Lease
Closing" thereunder (subject to the limitations on Landlord's
representations, warranties and covenants set forth in the
Executory Lease Agreement), and nothing contained herein shall
relieve Tenant from any of its obligations, acknowledgments or
agreements under the Executory Lease Agreement which by the
terms thereof survive the "Lease Closing" thereunder.
2.3 IMPROVEMENTS AND PERSONAL PROPERTY. Simultaneously herewith, Landlord
is selling to Tenant all improvements and fixtures owned by Landlord located on
the Real Property (the "IMPROVEMENTS"), all personal property and additional
property interests located on and related to the Real Property and assigning all
leases, service contracts and other agreements related to the Real Property
pursuant to a Xxxx of Sale and Assignment of Related Property Rights (the "XXXX
OF SALE AND ASSIGNMENT AGREEMENT"). To the extent that Landlord transfers any
rights, such as zoning, site plan and subdivision approvals and related rights,
Tenant shall cooperate in good faith with Landlord to transfer (pursuant to a
document in similar form to the Xxxx of Sale and Assignment Agreement reasonably
acceptable to the Parties) such rights and approvals back to Landlord to the
extent necessary to achieve the Map Events upon Landlord's request, together
with reasonable evidence of the necessity therefor.
9
2.4 MEMORANDUM. Concurrently with the execution of this Ground Lease, the
parties shall enter into a short form of memorandum of this Ground Lease in a
form reasonably approved by the parties hereto, which shall be recorded in the
Official Records.
2.5 INCOME TAX MATTERS. Notwithstanding anything to the contrary contained
in this Ground Lease or the Executory Lease Agreement, Landlord and Tenant agree
that (a) Landlord and Tenant intend that for purposes of Federal, state and
local income taxes, this Ground Lease transfers ownership of the Real Property
from Landlord to Tenant and constitutes a sale of the Real Property as of the
Effective Date; (b) as of the Effective Date, the purchase price for the Real
Property is NINETY-SEVEN MILLION FIVE HUNDRED THOUSAND and 00/100 DOLLARS
($97,500,000.00); (c) upon Landlord's receipt of the Holdback Amount (defined
below), along with accrued interest thereon, pursuant to the last sentence of
Section 4.1.2, the Holdback Amount shall constitute additional purchase price
received by Landlord in connection with the sale of the Real Property; (d)
Tenant shall at all times conduct its business and the operation of the Real
Property and fulfill its obligations under this Ground Lease in a manner as
though it were the fee owner of the Real Property; and (e) each will report the
transaction described in this Ground Lease, in all Federal, state and local
income tax returns and other filings in a manner consistent with this Section
2.5. Landlord and Tenant acknowledge that neither party hereunder is responsible
for the treatment of the transaction set forth in this Ground Lease as
contemplated hereunder.
ARTICLE 3.
TERM.
The term of this Ground Lease (the "TERM") shall begin on the Effective
Date and shall terminate on the ninety-ninth (99th) anniversary of the Effective
Date, unless earlier terminated to the extent and in accordance with the
provisions hereof.
ARTICLE 4.
RENT.
4.1 CALCULATION AND PAYMENT OF RENT. Commencing on the Effective Date and
continuing during the Term of this Ground Lease, Tenant agrees to pay to
Landlord rent ("RENT") as follows:
4.1.1 Initial Rent Installment. On the Effective Date, Tenant shall
pay to Landlord an initial installment of rent equal to NINETY
EIGHT MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($98,500,000.00) (the "INITIAL RENT INSTALLMENT") subject to
the escrowing of the "Holdback Amount" as provided in Section
4.1.2 below.
4.1.2 Adjustment of Initial Rent Installment. On the Effective Date,
Tenant shall deposit into escrow with the escrow agent under
the Executory Lease Agreement (the "ESCROW AGENT") an amount
equal to ONE MILLION AND NO/ DOLLARS ($1,000,000.00) as a
holdback (the "HOLDBACK AMOUNT") of a portion of the Initial
Rent Installment, which amount shall be held by Escrow Agent
in an interest bearing account, to be released to Landlord on
the terms and conditions set forth below in connection with
Landlord's efforts to achieve the Map Events as contemplated
under Article 18 hereof and in accordance with the intent of
the parties to confirm Tenant's interest in the absolute fee
simple title
10
to the Real Property. At such time as both Map Events occur,
Landlord shall be entitled to receive the Holdback Amount,
with accrued interest thereon, provided, however that if both
Map Events do not occur on before the date which is two years
after the Lease Closing (the "OUTSIDE DATE") (which date shall
be subject to Force Majeure Delays (as provided in Section
18.1.4 hereof), the Holdback Amount, with accrued interest
thereon, shall be paid to Tenant as a reduction of the Initial
Rent Installment. Landlord shall be entitled to receive the
Holdback Amount, with accrued interest, upon unilateral demand
therefore made by Landlord, together with reasonable evidence
of the satisfaction of the conditions for release set forth
herein.
4.2 INSURANCE; TAXES AND ASSESSMENTS. Tenant shall pay the costs of
insurance, any taxes and assessments, and any other charges, all as they relate
to the Real Property and by reason or in any manner connected with or arising
from the leasing, operation, management, maintenance, repair, use or occupancy
of, or construction affecting, the Real Property in accordance with Section 8
and Section 9 hereof and shall pay all personal property taxes, occupancy and
rent taxes, water, water meter and sewer rents, rates and charges, excises,
licenses and permit fees, service charges with respect to police protection,
fire protection, street and highway construction, maintenance and lighting,
sanitation and water supply, if any, fines, penalties and other or like
Governmental Authority charges applicable to the foregoing and any interest or
cost in respect thereof, and any and all other Governmental Authority levies,
fees, transfer taxes, rents, assessments or taxes and charges, general and
special, ordinary and extraordinary, foreseen and unforeseen, of any kind or
nature whatsoever, and any interest or cost in respect thereto, which, at any
time during the Term, are assessed, levied, confirmed or imposed upon the Real
Property (or any appurtenances thereto) or the use or occupancy thereof. The
Ground Lease is intended to be and shall be construed in accordance with Section
2.5 above.
ARTICLE 5.
USE AND DEVELOPMENT.
5.1 USE. Tenant shall have the right to develop and use the Real Property
for all purposes permitted under applicable law, including without limitation,
Biotechnology Uses. Tenant need not operate the Real Property or conduct
business of any nature at the Real Property, or use or operate the Real Property
in any particular manner. Tenant may discontinue operations at the Real Property
at any time and from time to time. Tenant may vacate the Real Property.
5.2 EXCLUSIVE TENANT CONTROL. Subject to Permitted Exceptions and the
easements and agreements contemplated by this Ground Lease Tenant shall have
exclusive control, possession, occupancy, use and management of the Real
Property. Landlord shall not have the right to enter or use the Real Property,
or to enter agreements affecting the Real Property, in each case, except as
expressly permitted or contemplated by this Ground Lease.
5.3 DEVELOPMENT. Tenant may develop the Real Property for such uses and
with such Improvements permitted by applicable Law (including without limitation
Biotechnology Uses and Improvements intended for Biotechnology Uses to the
extent so permitted) as Tenant shall determine in its sole discretion and
without any requirement that Tenant receive any further approval from Landlord
whatsoever, subject only to Section 18.2 below. Further, upon Tenant's request,
Landlord shall, without cost to Landlord, execute any Application as Tenant
11
reasonably may request to the extent required, solely by reason of the fact that
Landlord is the fee title holder, to allow such Application and the Approvals
sought thereby, provided that such Application is in customary form and imposes
no obligations upon Landlord. Promptly upon Tenant's request and without charge
(other than reimbursement by Tenant of any reasonable actual out of pocket third
party expenses incurred by Landlord in connection therewith), Landlord shall
furnish to Tenant all information in its possession or control reasonably
requested by Tenant in connection with any such Application. The parties
acknowledge and agree that the Applications contemplated by this Section
include, to the extent not otherwise inconsistent with this Ground Lease,
without limitation requests by Tenant for land use Approvals (e.g., zoning
changes, conditional use Approvals, site plan Approvals, Approvals required in
connection with the subdivision of the Real Property, etc.), Approvals required
to build Improvements on the Real Property (e.g., building permits) and
Approvals required in order to establish the Real Property as a separately
taxable parcel under applicable property tax regimes, or to establish separate
taxable parcels within the Real Property, in each case whether such Approvals
are ministerial or discretionary in nature. Notwithstanding anything to the
contrary set forth herein, in granting such necessary consent to facilitate any
such Application, Landlord does not hereby or thereby relinquish any rights it
may have to oppose any such Application.
5.4 LIMITATIONS ON USE. Notwithstanding the foregoing provisions of this
Article 5:
5.4.1 To the extent Tenant's failure to do so will subject Landlord
to civil or criminal liability, will cause an unsafe condition
that poses an imminent risk to health or safety, may result in
a lien being filed against Landlord's fee interest in any of
the Subject Land (other than the Real Property, provided that
such lien will not affect the remainder of the Subject Land
(other than the Project) subject to Tenant's right to
Contest), or will result in a material breach of any Easement,
Tenant shall during the Term, at Tenant's expense, subject to
Tenant's right to Contest, comply with all applicable laws,
rules, regulations, orders and ordinances, including, without
limitation, Environmental, Environmental, Health and Safety
Laws (collectively, "LAWS") and Permitted Exceptions. Nothing
contained herein, shall be deemed or construed to impair or
negate in any manner whatsoever Tenant's indemnity obligations
to Landlord under Article 11 hereof by reason of Tenant's
failure to comply with any Laws applicable to the Real
Property, or the use or occupancy thereof or otherwise.
5.4.2 Tenant shall not allow any Hazardous Material to be used,
generated, manufactured, released, stored or disposed of on,
under or about, or transported from the Real Property, unless
such use, generation, manufacturing, release, storage or
disposal is approved by Landlord or otherwise is in compliance
with applicable Environmental, Health and Safety Laws. Tenant
does hereby assume the full obligation for any claims,
actions, suits, liabilities, losses, costs or expenses arising
out of or relating to any investigations, removal or
remediation of any releases or threatened releases of
Hazardous Materials. Notwithstanding anything to the contrary
contained in the immediately preceding sentence of this
Section 5.4.2, nothing in the immediately preceding sentence
of this Section 5.4.2 shall relieve Landlord from any
obligations under the Executory Lease Agreement which by the
terms thereof survive the "Lease Closing" thereunder (subject
to the limitations
12
on Landlord's representations, warranties and covenants set
forth in the Executory Lease Agreement).
ARTICLE 6.
LIENS.
6.1 LANDLORD OBLIGATIONS. Landlord shall keep the Project clear of any and
all mechanic's and other liens resulting from acts or omissions of Landlord, its
employees, contractors, agents and assigns. If any lien shall at any time be
filed against the Project on account of any such acts or omissions, then
Landlord shall with all due diligence, and in any event no later than seven (7)
days from notice from Tenant of such lien, cause the same to be discharged of
record by payment, bond, order of a court of competent jurisdiction or
otherwise. If Landlord shall fail to promptly discharge any such lien, then, in
addition to any other right or remedy it may have hereunder or otherwise, Tenant
may, but shall not be obligated to, procure the discharge of the same either by
paying the amount claimed to be due or by securing a bond in an amount and
manner reasonably satisfactory to Tenant. Any amount paid or deposited by Tenant
for any of the aforesaid purposes, and all reasonable costs and other expenses
of Tenant, including reasonable counsel fees, in defending any such action or in
procuring the discharge of such lien, with all necessary disbursements in
connection therewith, together with interest thereon at the Default Rate from
the date of the payment or deposit, shall be payable by Landlord within fifteen
(15) days of written demand from Tenant.
6.2 TENANT OBLIGATIONS. Tenant shall keep all portions of the Subject Land
(other than the Project, clear of any and all mechanic's and other liens
resulting from acts or omissions of Tenant, its tenants, sub-tenants, employees,
contractors, agents and assigns, provided that Tenant shall be required to clear
all such liens in respect of the Project if such liens will affect the remainder
of the Subject Land (other than the Project) but subject to Tenant's right to
Contest any such liens. If any lien shall at any time be filed against any
portion of the Subject Land (other than the Project, provided that such lien
will not affect the remainder of the Subject Land (other than the Project) but
subject to Tenant's right to Contest any such liens)) on account of any such
acts or omissions, then Tenant shall with all due diligence, and in any event no
later than seven (7) days from notice from Landlord of such lien, cause the same
to be discharged of record by payment, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to promptly discharge any such
lien, then, in addition to any other right or remedy it may have hereunder or
otherwise, Landlord may, but shall not be obligated to, procure the discharge of
the same either by paying the amount claimed to be due or by securing a bond in
an amount and manner reasonably satisfactory to Landlord. Any amount paid or
deposited by Landlord for any of the aforesaid purposes, and all reasonable
costs and other expenses of Landlord, including reasonable counsel fees, in
defending any such action or in procuring the discharge of such lien, with all
necessary disbursements in connection therewith, together with interest thereon
at the Default Rate from the date of the payment or deposit, shall be payable by
Tenant within fifteen (15) days of written demand from Landlord.
ARTICLE 7.
UTILITIES.
7.1 TENANT OBLIGATED TO PAY UTILITY CHARGES. Tenant shall contract for, in
Tenant's name, and shall be solely responsible for, all charges for water, gas,
electricity, light, heat, power, telephone, sewer, trash collection and waste
removal and/or disposal, security or guard
13
service, alarm systems, or other service, and any taxes, levies or excises
thereon, used, rendered or supplied to Tenant in connection with the Real
Property; and for all connection and closing charges, and any tax or excise
thereon; and for any Governmental Authority service or service subject to
Governmental Authority regulation, however described, furnished to the Real
Property during the Term. Landlord shall not be liable to Tenant for any loss,
injury, damage, disruption of business or any other harm resulting from any
interruption of utility services to the Project.
7.2 UTILITY EASEMENTS. Subject to Tenant's obligations with respect to the
grant and performance of easements contemplated under Section 18.3 hereof,
Tenant shall be entitled, and is hereby authorized to, grant easements with
respect to the Real Property for general utility purposes, ingress and egress,
and water and sewage purposes, to and as may be reasonably required by any
public or private utility company or other authority in order to provide service
to the Real Property or other properties in the vicinity of the Real Property
(the "UTILITY EASEMENTS"). Subject to the rights and limitations of the Parties
set forth in Article 18 hereof, Landlord agrees to cooperate with Tenant in
making such grants upon the Real Property, to the extent requested by Tenant, so
long as Tenant reimburses Landlord for any reasonable actual out of pocket third
party costs incurred by Landlord in connection therewith.
ARTICLE 8.
INSURANCE.
During the Term of this Ground Lease, Tenant shall maintain, at its sole
cost and expense, general comprehensive public liability insurance against
claims for personal injury, bodily injury, death or property damage occurring
upon, in, or about the Real Property, providing coverage for a combined single
limit of $6,000,000 for any one occurrence. Tenant shall increase the combined
single limit coverage provided by such insurance to an amount requested by
Landlord, provided that such increased amount shall not be greater than the
limits then customarily required by prudent landlords under leases such as the
Ground Lease for similar properties in the country and state within which the
Real Property is located. Tenant shall also maintain during the Term of this
Ground Lease, (a) workers' compensation insurance subject to the statutory
limits in New York, and (b) automobile liability insurance in an amount of not
less than $1,000,000.00 per occurrence covering liability for bodily injury and
property damage. The insurance required to be maintained by Tenant pursuant to
this Article 8 shall be placed with reputable companies licensed to do business
in the State of New York, having a minimum policyholders' rating of "AVIII" or
better based upon the latest rating of Property and Casualty Insurers by A.M.
Best Company, and may be provided as part of a blanket policy, provided it does
not reduce coverage as to the Real Property as would otherwise be provided by a
separate policy insuring only the Real Property in compliance with this Article
8. Tenant shall name Landlord, LB Eastview Inc., LCOR Eastview LLC, Argent
Landmark LLC, and Eastview SPE Inc. as additional insureds on the policy of
insurance procured in satisfaction of this Article 8. On or before the Effective
Date, Tenant shall deliver to Landlord a certificate of insurance (prepared on
an insurance certificate form known as "XXXXX 28"). Not less than thirty (30)
days prior to the expiration dates of the insurance policy or policies furnished
to Landlord hereunder, certified copies of the such insurance policy or policies
marked "premium paid" or accompanied by evidence satisfactory to Landlord of
payment of the premiums due thereunder, shall be delivered by Tenant to
Landlord. The insurance policy or policies shall not be materially changed
(other than to increase the coverage provided thereby) or canceled without at
least 30 days' written notice to Landlord.
14
ARTICLE 9.
TAXES AND ASSESSMENTS.
9.1 TENANT OBLIGATED TO PAY TAXES AND ASSESSMENTS. Tenant covenants and
agrees to pay and discharge, all real estate taxes, water charges, sewer
charges, assessments, and all other governmental charges or impositions of every
kind and nature and installments thereof which may be taxed, charged, levied,
assessed or imposed on account of periods within the Term upon all or any
portion of or in relation to the Real Property; provided, however, that (a)
Tenant shall not be obligated to bear any portion of any such real estate taxes
or assessments attributable to periods before or after the Term; (b) in the year
in which the Effective Date occurs and in the year in which the Term shall
terminate (unless such termination is by reason of the occurrence of the Map
Events as set forth in Article 18 hereof) such taxes and assessments shall be
prorated between Tenant and Landlord on the basis of the number of days of the
Term within said year; (c) Tenant shall not be obligated to pay any real estate
taxes, assessments, sewer charges or other governmental charges or impositions,
an increase in which Landlord has agreed to without Tenant's consent, which
consent shall not be unreasonably withheld and (d) if such real estate taxes or
assessments are imposed or assessed with respect to a greater portion of real
property of which the Real Property constitutes but a part, then Tenant only
shall be obligated to bear such portion of such real estate taxes or assessments
as reasonably is attributable to the Real Property; and, based upon the
following formula. With respect to that portion of the Subject Land located in
the Town of Mount Pleasant (the "MOUNT PLEASANT SITE"), Tenant shall pay 100% of
the real estate taxes and assessments attributable to the Improvements located
on the Mount Pleasant Core Campus, plus a share of real estate taxes and
assessments apportioned to the land assessment on the Mount Pleasant Site
determined by multiplying the land assessment by a fraction, the numerator of
which is the square footage of the land comprising the Mount Pleasant Core
Campus and the denominator of which is the entire square footage of land
comprising the Mount Pleasant Site. With respect to that portion of the Subject
Land located in the Town of Greenburgh (the "GREENBURGH SITE"), Tenant shall pay
100% of the real estate taxes and assessments attributable to the Improvements
located on the Greenburgh Core Campus, plus a share of real estate taxes and
assessments apportioned to the land assessment on the Greenburgh Site determined
by multiplying the land assessment by a fraction, the numerator of which is the
square footage of the land comprising the Greenburgh Core Campus and the
denominator of which is the entire square footage of land comprising the
Greenburgh Site. If the improvements located on the MSG Parcel are part of a tax
lot which includes any portion of the Greenburgh Core Campus, then the
determination of real estate taxes and assessments payable by Tenant for the
Improvements located on the Greenburgh Core Campus shall be determined by
multiplying the assessment attributable to all improved land on the Greenburgh
Site by a fraction, the numerator of which is the square footage of the
Improvements comprising the Greenburgh Core Campus and the denominator of which
is the combined square footage of the Improvements on the Greenburgh Core Campus
and the improvements on the MSG Parcel. In the event that Landlord and Tenant
cannot agree on the result of the foregoing tax allocation, Landlord shall pay
the disputed amount and the issue shall be subjected to binding arbitration.
Landlord shall be entitled to recover from Tenant, interest at the Default Rate
on any portion of the disputed amount paid by Landlord, which such arbitration
determined was the obligation of Tenant. If any assessments or taxes are levied
or assessed against the Real Property which are payable or may be paid in
monthly or more frequent installments, Tenant shall be required to pay only such
installments as shall become due and payable during the Term (using the longest
amortization period available by the terms of such assessments or taxes)
15
9.2 TAX INVOICES. Landlord shall use commercially reasonable efforts to
cause invoices for Real Estate Taxes and/or assessments with respect to the Real
Property to be delivered directly to Tenant by the taxing authorities, and
Landlord in any event promptly shall deliver to Tenant each invoice for real
estate taxes and/or assessments received by Landlord. Tenant shall pay the
amount of any taxes and assessments which it is obligated to pay hereunder
directly to the appropriate taxing authorities (it being understood that Tenant
shall not be obligated to pay any such Real Estate Taxes or assessments which
are invoiced to Landlord until the later of 30 days before the delinquency date
and the 15th day after Landlord provides Tenant with a copy of such invoice).
9.3 TAXES ON TENANT'S PERSONAL PROPERTY. Tenant shall be solely
responsible for all taxes assessed against and levied upon trade fixtures,
furnishings, equipment and all other personal property of Tenant contained on
the Land or elsewhere before delinquency.
9.4 DEFINITION OF "REAL ESTATE TAXES". As used herein, the term "real
estate taxes" shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental tax,
rental excise tax, improvement bond or bonds, levy or tax (other than income,
profits, franchise, estate, inheritance or succession taxes) imposed on the Real
Property by any authority having the direct or indirect power to tax, including
any city, state or the federal government, or any school, agricultural,
sanitary, fire, street, drainage, water or other improvement district thereof,
as against any legal or equitable interest of Landlord in the Real Property. The
term "real estate taxes" shall also include any tax, fee, levy, assessment or
charge in substitution of, partially or totally, any tax, fee, levy, assessment
or charge hereinabove included within the definition of "real property tax".
"Real estate taxes" shall not include, however, any income, profits, franchise,
estate, inheritance or succession tax imposed upon Landlord (which items shall
be borne by Landlord) or any item listed in this Section based on the recapture
or reversal of any previous tax abatement or tax subsidy, or compensating for
any previous tax deferral or reduced assessment or valuation, or correcting a
miscalculation or misdetermination, relating to any period(s) before the Term
(which items shall be borne by Landlord), or any interest or penalties on any of
the foregoing.
9.5 FEES AND EXACTIONS. Subject to Landlord's obligations under Article 18
hereof, Tenant shall be solely responsible for any charges in the nature of
building permit fees and entitlement fees, impact fees and exactions
attributable to the construction of Improvements on the Real Property..
9.6 TENANT'S RIGHT TO CONTEST TAXES AND OTHER CHARGES. Tenant shall have
the right to Contest any real estate taxes or assessments, materialmen's claims
and other claims against the Real Property provided that such contest (i) is
conducted in accordance with applicable laws, (ii) shall suspend the collection
of such real estate taxes or assessments, materialmen's claims and other claims
against the Real Property and (iii) does not otherwise impair Landlord's
prosecution of a tax reduction proceeding.
ARTICLE 10.
EVENTS AFFECTING THE CONDITION OF THE REAL PROPERTY.
10.1 LANDLORD NOT OBLIGATED TO REPAIR AND MAINTAIN REAL PROPERTY. Landlord
shall not be obligated to maintain or to make any repairs, replacements, or
renewals of any kind,
16
nature or description whatsoever to the Real Property or Improvements thereon,
and Tenant waives the provisions of any law permitting Tenant to make repairs at
Landlord's expense.
10.2 ALTERATIONS AND IMPROVEMENTS. Subject to Permitted Exceptions
providing rights in favor of Landlord and any Easements created pursuant to
Article 18 hereof or imposed in connection with the pursuit of the Map Events in
accordance with Article 18 hereof, Tenant shall have the right, in its sole
discretion to alter the Real Property and the Improvements thereon as permitted
by applicable Law and as Tenant from time to time determines to be appropriate
(e.g., through the construction of buildings, structures and other facilities,
including, but not limited to, any and all utility lines, pipes, connections,
fixtures, machinery, equipment, signs, furniture, furnishings, appointments and
other personal property that Tenant determines to be reasonably necessary or
appropriate in connection with Tenant's ownership and operation of the Real
Property). All such additions, alterations, changes and improvements shall be
and remain the property of Tenant.
10.3 CORRECTION OF DANGEROUS CONDITIONS. If Tenant becomes aware of any
dangerous or unsafe conditions at the Real Property, then Tenant shall take
commercially reasonable steps necessary to render such condition safe. Tenant
shall also be required to comply with all Permitted Exceptions providing rights
in favor of Landlord and Easements created pursuant to Article 18 hereof or
imposed in connection with pursuit of the Map Events in accordance with Article
18 hereof.
10.4 DAMAGE. Tenant shall have no obligation to repair any damage which
occurs with respect to the Project. Any such repair, and the nature or extent
thereof, shall be within the sole discretion of Tenant. Tenant further shall
have the right in its discretion to determine how to apply any insurance
proceeds received on account of damage to the Project. The provisions of this
Section 10.4 are not intended to relieve Tenant of its obligations under
Sections 5.4 or 10.3.
10.5 CONDEMNATION. In the event of condemnation of all or any portion of
the Project, Tenant shall receive all amounts paid on account of such
condemnation, and Landlord shall not be entitled to any such amounts (and
Landlord further shall pay to Tenant any such amounts received by Landlord on
account thereof).
ARTICLE 11.
INDEMNITIES.
11.1 TENANT'S DUTY. To the extent permitted by law, Tenant covenants with
Landlord that Landlord shall not be liable for any damage or liability of any
kind or for any injury to or death of persons, or damage to property of Tenant
or any other person or entity occurring from any cause whatsoever related to the
use, improvement, occupancy or enjoyment of the Project. Tenant shall indemnify,
protect, defend and hold harmless Landlord and its officers, directors, members,
partners, agents, employees, affiliates, licenses and invitees (collectively
"INDEMNITEES") and the Project from and against:
11.1.1 any and all loss, liability, fines, penalties, liens, losses,
damages, costs and expenses, demands, causes of action, suits,
claims or judgments (including, without limitation, reasonable
attorneys' fees and disbursements) (collectively, "CLAIMS")
which may be imposed upon, incurred by or asserted against any
of the Indemnitees arising from or growing out of any injury
or death to any person or persons or any
17
damage to any property as a result of any accident or other
occurrence during the Term occasioned in any way as a result
of the use, improvement, maintenance, occupation or operation
of the Project during the Term;
11.1.2 all Claims related to the use, non-use, leasing, possession,
occupation, construction, alteration, addition, replacement,
repair, condition, operation, maintenance or management of the
Project, or any part thereof, or of any sidewalk, curb or
vault comprising the Project or adjacent thereto by Tenant or
its members, agents, shareholders, constituent partners,
officers, employees, servants, concessionaires, tenants,
sub-tenants, occupants, licensees, contractors and invitees
("TENANT PARTIES") during the Term;
11.1.3 Claims related to any act or omission by any Tenant Party, or
any other Person related to or in connection with the Project;
11.1.4 any failure on the part of any Tenant Party to keep, observe
and perform any of the terms, covenants or conditions
contained in the Permitted Exceptions providing rights in
favor of Landlord, Easements contemplated under Article 18
hereof or imposed in pursuit of the Map Events in accordance
with Article 18 hereof;
11.1.5 any Claims known or unknown, contingent or otherwise,
including, without limitation, attorneys' and consultants'
fees and disbursements and investigation and laboratory fees
arising out of, and in any way related to (i) the storage,
use, possession, presence, disposal, release, or threat of
release of any Hazardous Materials, in, on, from, or affecting
the Project; (ii) any personal injury (including, without
limitation, wrongful death) or property damage (real or
personal) arising out of or related to any such Hazardous
Materials; (iii) any lawsuit brought or threatened, settlement
reached or government order relating to such Hazardous
Materials; or (iv) any intentional or unintentional act or
omission on the part of any Tenant Party which violates any
Environmental, Health and Safety Law.
11.1.6 all legal costs and charges, including reasonable attorneys'
fees, incurred in and about any of such matters and the
defense of any action arising out of the same, which may
accrue or be placed thereon by reason of any act or omission
of Tenant; and
11.1.7 any Claim resulting from a breach of Tenant's covenants,
representations and warranties in this Ground Lease.
11.2 LIMITATIONS ON INDEMNITY. Notwithstanding the provisions of Section
11.1, Tenant shall not be required to indemnify Landlord for any damage or
injury arising as a result of the gross negligence or willful misconduct of
Landlord, Landlord's agents or employees, or Landlord's breaches of its
covenants relating to pursuit of the Map Events contained herein or any breaches
of Landlord's obligations under the Executory Lease Agreement, to the extent
that the same survive the "Lease Closing" thereunder (but subject to the
limitations on such obligations of Landlord provided for in the Executory Lease
Agreement). Nothing in Section
18
11.1 shall be construed as relieving Landlord from any representations,
warranties or other obligations which by the terms of the Executory Lease
Agreement, survive the "Lease Closing" thereunder (but subject to the
limitations on Landlord's representations, warranties and covenants set forth in
the Executory Lease Agreement).
11.3 SURVIVAL OF INDEMNITY. The indemnities under this Article 11 shall
survive the termination or expiration of this Ground Lease so long any claim
arising during the term of this Ground Lease is not barred by a statute of
limitations, except that following Tenant's assignment of this Ground Lease
pursuant to Article 12, the assignee shall assume the above indemnification
obligations and the assigning Tenant shall be released so long as such assignee,
in the reasonable opinion of Landlord, at the time of assignment has a
capitalization sufficient to cover the then reasonably anticipated liabilities
of Tenant hereunder.
ARTICLE 12.
ASSIGNMENT.
12.1 ASSIGNMENT BY LANDLORD. Landlord shall not have the right to pledge,
hypothecate or otherwise encumber any interest of Landlord in the Real Property
except with the prior written consent of Tenant, which consent may be withheld
or granted in Tenant's sole discretion. Without limiting the breadth of the
foregoing restriction, Landlord further agrees that any pledge, hypothecation or
other encumbrance or any interest of Landlord in the Real Property shall be
subordinate to the rights of Tenant, or any person or entity claiming through
Tenant, in the Project (including without limitation any Leasehold Mortgagee and
any sublessee of Tenant hereunder). Notwithstanding the foregoing, Landlord
shall have the right to effect an absolute assignment of all of its interests in
the Real Property, provided that (a) no such assignment shall release the
assignor from any obligations arising on account of circumstances occurring
prior to the assignment, and (b) the assignee accepts such assignment in writing
and confirms, to the satisfaction of Tenant, that its rights in the Real
Property shall be subject to, and that such assignee in all respects shall be
bound by, the terms and conditions of this Ground Lease, including Section 2.5.
12.2 TENANT'S RIGHT TO SUBLEASE. Tenant may permit the use of all or any
portion of the Project by any person other than Tenant, or sublet all or any
portion of the Project, without the consent or approval of Landlord, and Tenant
shall not be released from any of its obligations hereunder. Landlord shall
accept performance by any subtenant or occupancy tenant of any of the terms and
provisions of this Ground Lease required to be performed by Tenant with the same
force and effect as though performed by Tenant. In the event that Landlord
terminates Tenant's interest in this Ground Lease, Landlord shall continue to
recognize and not disturb the rights of any subtenants of Tenant pursuant to
subleases executed by such subtenants with Tenant during the term of this Ground
Lease.
12.3 TENANT'S RIGHT TO MORTGAGE. Tenant may at any time and from time to
time mortgage, hypothecate, transfer, assign or pledge this Ground Lease and the
leasehold estate created hereby (the "TENANT LEASEHOLD ESTATE") and the interest
of Tenant in and to this Ground Lease together with Tenant's right, title and
interest in the Project and Tenant's interest in any and all subleases and in
and to all rents due or to become due thereunder (herein called a "LEASEHOLD
MORTGAGE") to secure indebtedness in favor of third parties from time to time
designated by Tenant in accordance with this Section 12.3. The granting or other
consummation of any such Leasehold Mortgage may be effected without any
requirement that Tenant obtain any approval or consent of Landlord. The holder
of any indebtedness that is secured by such Leasehold Mortgage, or if there is
more than one holder of such indebtedness,
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then the representatives of, or agent designated by such holders, shall be a
"LEASEHOLD MORTGAGEE" if: (1) Tenant delivers written notice of such Leasehold
Mortgage to Landlord, which notice shall include the name and address of
Leasehold Mortgagee; and (2) such Leasehold Mortgage is recorded in the Official
Records.
12.4 NOTICES TO LEASEHOLD MORTGAGEE. Landlord and Tenant agree that so
long as any such Leasehold Mortgage exists, Landlord will endeavor to
simultaneously mail to the applicable Mortgagee a copy of any notice given by
Landlord to Tenant at the address (if any) given by such Mortgagee to Landlord
for the receipt of such notices.
12.5 NOTICE TO LEASEHOLD MORTGAGEE OF TENANT EVENT OF DEFAULT.
12.5.1 Notwithstanding anything contained in this Ground Lease to
the contrary, if any Tenant Event of Default shall occur which
entitles Landlord to pursue it's rights and remedies hereunder
and by equity and law provided following the expiration of the
period of time given Tenant to cure such Tenant Event of
Default or the act or omission which gave rise to such
default, Landlord shall notify every Leasehold Mortgagee who
has notified Landlord pursuant to, and has otherwise complied
with, Section 12.3 hereof of Landlord's intent to so pursue
its remedies under Section 13.2 hereof at least sixty (60)
days in advance thereof if such Tenant Event of Default is
capable of being cured by the payment of money, and at least
one hundred and twenty (120) days in advance of the exercise
of its remedies under Section 13.2 hereof if such Tenant Event
of Default is not capable of being cured by the payment of
money (the "REMEDIES NOTICE"). The Remedies Notice shall
include an explanation of the Tenant Event of Default. The
provisions of Section 12.6 below shall apply if, during such
sixty (60) or one hundred and twenty (120) -day notice period
any Leasehold Mortgagee shall:
12.5.1.1 notify Landlord of such Leasehold Mortgagee's desire to
nullify such notice, and
12.5.1.2 pay or cause to be paid all money due as a result of
monetary defaults as specified in the Remedies Notice to such
Leasehold Mortgagee and which may become due during such sixty
(60) or one hundred and twenty (120) -day period, and
12.5.1.3 comply in good faith, with reasonable diligence and
continuity, or commence to comply, with all nonmonetary
requirements of this Ground Lease then in default and
reasonably susceptible of being complied with by such
Leasehold Mortgagee.
12.5.2 Any notice to be given by Landlord to a Leasehold Mortgagee
pursuant to any provision of this Section 12.5 shall be deemed
properly addressed if sent to the Leasehold Mortgagee at the address
provided pursuant to Section 15.1 of this Agreement.
12.6 PROCEDURE ON TENANT EVENT OF DEFAULT.
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12.6.1 If Landlord shall elect to pursue its remedies as provided in
Section 13.2 of this Ground Lease by reason of any Tenant Event of
Default and a Leasehold Mortgagee shall have proceeded in the manner
provided for by Section 12.5 of this Ground Lease, then the
specified date for the termination of this Ground Lease as fixed by
Landlord in its Remedies Notice shall be extended for a period of
twelve (12) months provided that such Leasehold Mortgagee shall,
during twelve (12) period:
12.6.1.1 Pay or cause to be paid the monetary obligations of Tenant
under this Ground Lease as the same become due, and continue
its good faith efforts to perform all of Tenant's other
obligations under this Ground Lease; and
12.6.1.2 if not enjoined or stayed by a bankruptcy court, take steps
to acquire or sell Tenant's interest in this Ground Lease by
foreclosure of the Leasehold Mortgage or other appropriate
means and prosecute the same to completion with due diligence.
12.6.1.3 If at the end of such twelve (12) month period such
Leasehold Mortgagee is complying with Section 12.6.1, then
this Ground Lease shall not then terminate, and the time for
completion by such Leasehold Mortgagee of its proceedings
shall continue so long as such Leasehold Mortgagee proceeds to
complete steps to acquire or sell Tenant's interest in this
Ground Lease by foreclosure of the Leasehold Mortgage or by
other appropriate means with reasonable diligence and
continuity. Nothing in this Section 12.6.1, however, shall be
construed to extend this Ground Lease nor to require a
Leasehold Mortgagee to continue such foreclosure proceeding
after the Tenant Event of Default has been cured. If the
Tenant Event of Default shall be cured and the Leasehold
Mortgagee shall discontinue such foreclosure proceedings, this
Ground Lease shall continue in full force and effect as if
Tenant had not defaulted under this Ground Lease.
12.6.2 If a Leasehold Mortgagee is complying with Section 12.6.1, then
upon the acquisition of the Tenant Leasehold Estate herein by such
Leasehold Mortgagee or its designee or any other purchaser at a
foreclosure sale or otherwise, this Ground Lease shall continue in
full force and effect as if Tenant had not defaulted under this
Ground Lease.
12.7 ACQUISITION BY LEASEHOLD MORTGAGEE. In the event a Leasehold
Mortgagee, or its nominee designated for that purpose, acquires the Tenant
Leasehold Estate pursuant to any proceedings for foreclosure of such Leasehold
Mortgage, or by a voluntary assignment or transfer of the Tenant Leasehold
Estate, in lieu of foreclosure or otherwise, the Leasehold Mortgagee or its
nominee or assignee as aforesaid (i) shall be deemed an assignee of all the
rights of Tenant under this Ground Lease, (ii) shall be deemed to have assumed
all of Tenant's obligations thereafter arising hereunder.
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12.8 NEW GROUND LEASE. If this Ground Lease shall be rejected or
disaffirmed pursuant to any bankruptcy law or other law affecting creditors'
rights or if this Ground Lease is terminated under any provision of this Ground
Lease (including without limitation Section 13.2), Landlord will enter into a
new lease of the Real Property with the Leasehold Mortgagee or its nominee not
less than ten (10) nor more than thirty (30) days after the request of the
Leasehold Mortgagee referred to below, for the remainder of the term of this
Ground Lease effective as of the date of such rejection or disaffirmance or
termination, upon all the terms and provisions contained in this Ground Lease;
provided that (a) the Leasehold Mortgagee makes a written request to Landlord
for such new Ground Lease within fifteen (15) days after the effective date of
such rejection or disaffirmance or termination, as the case may be, and such
written request is accompanied by a copy of such new lease, duly executed and
acknowledged by the Leasehold Mortgagee or its nominee; and (b) upon taking
possession of the Real Property the Leasehold Mortgagee cures any outstanding
curable defaults within the period reasonably required to cure the same. Any new
lease made pursuant to this paragraph shall have the same priority with respect
to other interests in the Real Property as this Ground Lease. The provisions of
this paragraph shall survive the rejection or disaffirmance or termination of
this Ground Lease and shall continue in full force and effect thereafter to the
same extent as if this paragraph were a separate and independent contract made
by Landlord and the Leasehold Mortgagee.
12.9 NO MODIFICATIONS WITHOUT CONSENT. So long as a Leasehold Mortgage is
in effect (a) Landlord will not accept a voluntary surrender of this Ground
Lease (and Tenant agrees that Landlord shall have no liability by reason of any
such refusal to accept surrender) and (b) the Ground Lease shall not be modified
in any material respect without, in each case, the prior written consent of each
Leasehold Mortgagee, if any, provided, however that Landlord shall have no
liability whatsoever if any such modification is made (it being understood that
the foregoing is not intended to exculpate Landlord from liability to any
Leasehold Mortgagee as a consequence of a modification which violates the
provisions of this Section). Any act or agreement in violation of this paragraph
shall be void. Without the written consent of Landlord, Tenant, and all
Leasehold Mortgagees, the fee estate and the leasehold estate shall at all times
remain distinct and separate estates. They shall not merge, notwithstanding any
acquisition by any means of both the fee estate and the leasehold estate by
Landlord, Tenant, any successor of Tenant, any Leasehold Mortgagee, or a third
party.
12.10 BENEFITS. The provisions of this Article 12 are for the benefit of
any sublessee of Tenant and of any Leasehold Mortgagee and may be relied upon
and shall be enforceable by any such sublessee or Leasehold Mortgagee. No
sublessee or Leasehold Mortgagee shall be liable upon the covenants, agreements
or obligations of Tenant contained in this Ground Lease, except as expressly
provided herein.
12.11 ADDITIONAL DOCUMENTS. Landlord shall execute any instruments any
such sublessee of Tenant or any Leasehold Mortgagee may reasonably request or
require from Landlord, with respect to the provisions of this Article 12 so long
as such documents do not adversely affect Landlord's rights or obligations and
do not impose any additional obligation on Landlord under this Ground Lease.
Tenant shall reimburse Landlord for the reasonable costs and professional fees
incurred by Landlord in connection with such instruments and documents.
12.12 NO LANDLORD LIENS . Landlord has no lien or security interest in any
personal property of Tenant or any subtenant located in, on, or at the Project.
Such personal property shall not secure payment of any Rent. If, at any time,
any statute or principle of law would grant
22
Landlord any such lien or security interest, then Landlord waives the benefit of
any such statute or principle and such lien. Landlord shall, at no cost to
Landlord, execute such documentation, in recordable form, as Tenant or any
subtenant shall reasonably require, or as any Leasehold Mortgagee (or other
lender or any equipment Landlord) shall require, to confirm the foregoing
waiver.
ARTICLE 13.
DEFAULTS AND REMEDIES
13.1 TENANT EVENTS OF DEFAULT. Tenant agrees that the following shall be
considered a "TENANT EVENT OF DEFAULT": (a) any failure by Tenant to keep,
observe and perform the covenants or agreements contained herein, and such
failure shall continue for sixty (60) days after notice thereof in writing from
Landlord to Tenant; provided, however, that if such failure cannot reasonably be
cured within said sixty (60) day period and Tenant shall have commenced to cure
such failure within said period and shall thereafter proceed with reasonable
diligence and good faith to cure such failure, such sixty (60) day period shall
be extended for such longer period as shall be necessary for Tenant to cure the
same with all reasonable diligence; or (b) any filing with a bankruptcy court of
a voluntary or involuntary petition of bankruptcy by or against Tenant and such
petition is not stayed or vacated within sixty (60) days, or a receiver or
trustee is appointed for Tenant and such appointment is not stayed or vacated
within sixty (60) days, or Tenant makes an assignment for the benefit of
creditors (other than as provided in this Ground Lease).
13.2 LANDLORD REMEDIES. Upon the occurrence of any Tenant Event of Default
and subject to the rights of any sublessee of Tenant and Leasehold Mortgagee
under Article 12 of this Agreement, Landlord shall pursue any of the remedies
that Landlord may have under this Ground Lease, or at law or equity, by reason
of such Event of Default, including, without limitation, (a) the right to cure
such default at Tenant's cost, (b) appoint a receiver upon application of
Landlord to maintain and preserve the Real Property, (c) take any action
reasonably necessary and appropriate, upon prior notice to Tenant, to preserve
and protect Landlord's interest in the Subject Land (other than the Real
Property) from any adverse impact as a result of such Tenant Default and (d)
recover any other amounts, including all costs and expenses reasonably incurred
in the exercise of its remedies hereunder (including reasonable attorneys'
fees), necessary to compensate Landlord for all damages suffered by Landlord as
a result of Tenant's failure to perform its obligations under this Ground Lease.
If Landlord, at any time after an Event of Default, pays any sum, the sum paid
by Landlord shall be due immediately from Tenant to Landlord at the time the sum
is paid, and if paid at a later date shall bear interest at the maximum rate
allowed by law from the date the sum is paid by Landlord until Landlord is
reimbursed by Tenant. In addition to and not by way of limitation of Landlord's
rights under specific provisions of this Ground Lease, Landlord shall at all
times have the right (at its sole election and without any obligation to do so)
to advance on behalf of Tenant any amount payable under the terms hereof by
Tenant, or to otherwise satisfy any of Tenant's obligations hereunder, provided
that (except in case of an emergency calling for immediate payment) Landlord
shall first have given Tenant no less than ten (10) days' prior written notice
of Landlord's intent to advance such amounts on behalf of Tenant. No advance by
Landlord shall operate as a waiver of any of Landlord's rights under this Ground
Lease and Tenant shall remain fully responsible for the performance of its
obligations under this Ground Lease. All amounts advanced by Landlord shall be
immediately due and payable by Tenant to Landlord, and shall bear interest at
the rate of ten percent (10%) per annum, compounded monthly, until paid in full.
23
13.3 LANDLORD EVENTS OF DEFAULT. Each of the following events or
conditions shall constitute a "LANDLORD EVENT OF DEFAULT" hereunder: (a) any
payment by Landlord required hereunder is not paid when due and such failure
continues for sixty (60) days following written notice thereof; (b) any failure
by Landlord to perform any of its material duties or obligations contemplated by
this Ground Lease and such failure continues for a period of sixty (60) days
following written notice thereof from Tenant to Landlord; provided, however,
that if such failure cannot reasonably be cured within said sixty (60) day
period and Landlord shall have commenced to cure such failure within said period
and shall thereafter proceed with reasonable diligence and good faith to cure
such failure, such sixty (60) day period shall be extended for such longer
period as shall be necessary for Landlord to cure the same with all reasonable
diligence; or (c) any filing with a bankruptcy court of a voluntary or
involuntary petition of bankruptcy by or against Landlord and such petition is
not vacated within thirty (30) days, or a receiver or trustee is appointed for
Landlord and such appointment is not vacated with thirty (30) days, or Landlord
makes an assignment for the benefit of its creditors, except as provided in this
Ground Lease. To the extent that any of the foregoing does not materially and
adversely affect Tenant's rights under this Ground Lease, it shall not
constitute an act of default.
13.4 TENANT REMEDIES. Upon the occurrence of a Landlord Event of Default
under this Article 13 and subject to any limitations set forth in any consent
and agreement executed with a Leasehold Mortgagee, Tenant may exercise all
remedies available at law or at equity or other appropriate proceedings,
including bringing an action or actions from time to time for recovery of
damages which may include, without limitation, all amounts due and unpaid to
Tenant by Landlord, and all costs and expenses reasonably incurred in the
exercise of its remedies hereunder (including reasonable attorneys' fees),
and/or specific performance.
13.5 EXCULPATION. The managers, members, and any officers, directors and
controlling persons of Landlord shall have no liability to Tenant or any other
person in any way related to this Ground Lease or the transactions contemplated
by this Ground Lease including, without limitation, the provisions in Section
18.1.5 hereof. The managers, members and any officers, directors and controlling
persons of Tenant shall have no liability to Landlord or any other person in any
way related to this Ground Lease or the transactions contemplated by this Ground
Lease.
ARTICLE 14.
ESTOPPEL CERTIFICATES.
Landlord and Tenant, on written request from each other, shall execute and
deliver to the other Party, any prospective sublessee of any space in the Real
Property, any prospective assignee of this Ground Lease or any Leasehold
Mortgagee, if so requested, without charge, an estoppel certificate certifying
whether or not this Ground Lease is in full force and effect, whether it has
been modified (or if there have been modifications, stating them), whether or
not the Party executing the certificate knows of any default, breach or
violation by the other Party under any of the terms of this Ground Lease, and
such other matters as may reasonably be requested.
ARTICLE 15.
NOTICES.
15.1 NOTICE ADDRESSES. All notices, demands, requests, consents, approvals
and other communications hereunder shall be in writing and delivered (a)
personally, (b) by a nationally recognized overnight courier service, (c) by
mail (by registered or certified mail, return
24
receipt requested, postage prepaid), (d) by facsimile, addressed to the
respective parties or (e) such other means of communication as the Parties may
agree as to from time to time, as follows:
If to Landlord:
EASTVIEW HOLDINGS LLC
c/o LCOR Incorporated
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone:
Fax:
With a copy to:
LCOR INCORPORATED
000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq
Telephone:
Fax:
With a copy to:
XXXXXXX XXXX XXXX & XXXXXXXXXX, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq
Telephone:
Fax:
If to Tenant:
XXXXXXXX PROPERTY ADVISORS, INC.
00000 Xxxxxxxx Xxxxxx Xx., Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: President
Telephone:
Fax:
With a copy to:
XXXXXX & XXXXXXX, LLP
000 X. Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone:
Fax:
25
or such additional parties and/or other address as such Party may hereafter
designate (provided, however, in no event shall either Party be obligated to
notify, in the aggregate, more than five (5) designees of the other Party), and
shall be effective upon receipt or refusal thereof.
15.2 CERTAIN NOTICE OBLIGATIONS. Each Party shall notify the other Party,
in writing, as soon as reasonably possible, and in any event within five (5)
business days after, any of the following: (a) notice of the institution or
commencement of any proceedings for the condemnation or transfer in lieu of
condemnation of any portion of the Project or the Real Property, (b) such Party
has knowledge, or it has reasonable cause to believe, that any Hazardous
Material has been released, discharged or is located on, under or about the
Project or the Real Property, whether or not the release or discharge is in
quantities that would otherwise be reportable to a public agency; (c) such Party
receives any order of a Governmental Authority requiring any remedial work or
any warning, notice of inspection, notice of violation or alleged violation, or
such Party receives notice or knowledge of any proceeding, investigation of
enforcement action, pursuant to any Environmental, Health and Safety Laws; or
(d) such Party receives notice or knowledge of any Claims made or threatened by
any third party against such Party or the Project or the Real Property relating
to any loss or injury resulting from Hazardous Materials or from violation of
any Health and Safety Law. If the potential risk of any of the foregoing events
is material, the Party having notice of such event shall endeavor to deliver
prompt verbal notice to the other Party, in addition to written notice as set
forth above. Landlord and Tenant agree to deliver to one another copies of all
test results, reports and business or management plans required to be filed with
any Governmental Authority pursuant to any Environmental, Health and Safety
Laws.
ARTICLE 16.
INTENTIONALLY OMITTED.
ARTICLE 17.
INTENTIONALLY OMITTED.
ARTICLE 18.
SUBDIVISION EFFORTS AND SALE OF REAL PROPERTY.
18.1 PURSUIT OF MAP EVENTS.
18.1.1 General. The parties hereto acknowledge and agree that (a)
Landlord has filed an application for subdivision of the
Subject Land located in Greenburgh in accordance with the
Greenburgh Subdivision Plan in order to establish each of the
Greenburgh Core Campus, the MSG Parcel and the Residential
Parcel as a legally subdivided separate parcel, and (b)
Landlord intends to proceed with the subdivision of the
Subject Land located in Mount Pleasant substantially in
accordance with the Mount Pleasant Subdivision Plan, which may
include, inter alia, variations in the lot lines thereof, in
order to (i) establish each of the Mount Pleasant Core Campus,
the Home Depot Parcel and Retail Parcel as a legally
subdivided separate parcel, (ii) cause the delineation of such
wetlands as depicted on EXHIBIT A-2 and issuance of a related
wetlands permit and (iii) obtain site plan approval to permit
demolition of a certain existing parking lot area located on
the Retail Parcel as
26
depicted on EXHIBIT A-2, the demolition of sundry buildings on
the Mount Pleasant Core Campus, the construction of a new
parking area or the Mount Pleasant Core Campus, as generally
shown in the area designated on EXHIBIT A-2 and to permit
other immaterial site adjustments in accordance with this
Article 18 as may be required during the review process in
Mount Pleasant.
18.1.2 Greenburgh. Subject to the terms and conditions hereof,
Landlord agrees to use reasonable commercial efforts to obtain
subdivision approval, from all required Governmental
Authority, for the Subject Land located in Greenburgh of a
subdivision map substantially in accordance with the
Greenburgh Subdivision Plan. Except as otherwise agreed by
Tenant, which agreement shall not be unreasonably withheld,
such subdivision approval (A) shall not impose upon a
developer of the Greenburgh Core Campus any further material
conditions upon the development and use of the Greenburgh Core
Campus beyond any such conditions presently applying thereto
pursuant to the existing Greenburgh Site Plan approval, and
(B) shall not change in any material respect any lot line on
the Greenburgh Subdivision Plan or make other material
variations, additions or changes thereto (such approvals
referred to herein as the "GREENBURGH MAP EVENT"); and
18.1.3 Mount Pleasant. Subject to the terms and conditions hereto,
Landlord agrees to use reasonable commercial efforts to obtain
subdivision approval, from all required Governmental
Authority, for the Subject Land located in Mount Pleasant of a
subdivision map substantially in accordance with the Mount
Pleasant Subdivision Plan. Except as otherwise agreed by
Tenant, which agreement shall not be unreasonably withheld,
such subdivision approval (A) shall be accompanied by the
wetland permit contemplated by Recital (4)(b) of this Ground
Lease; (B) shall include approval of the demolition and
parking lot relocation contemplated by Recital (4)(c) of this
Ground Lease; (C) shall not impose upon the developer of the
Mount Pleasant Core Campus any material conditions to the
development and use of the Mount Pleasant Core Campus which
are disproportionate to those imposed upon the Home Depot
Parcel or the Retail Parcel, and (D) shall not change in any
material respect any lot line on the Mount Pleasant
Subdivision Plan or make other material variations, additions
or changes thereto (such approvals referred to herein as the
"MOUNT PLEASANT MAP EVENT")
18.1.4 Force Majeure Delays. The Parties agree that Landlord shall
not be charged with any delay in the processing and/or
approval of the Map Events and/or anything required to be done
by Landlord or others in order to accomplish the same if such
delay is caused by or due to or results from delays or
limitations imposed by any Governmental Authority with
jurisdiction over the activity at issue, including, without
limitation, a moratorium (in each instance, "Force Majeure
Delay"); it being understood and agreed that the Outside Date
for the occurrence of the Map Events shall be extended by one
(1) day for each day that the processing and/or approval of
either of Landlord's applications is
27
delayed by reason of a Force Majeure Delay, so long as
Landlord continues to pursue the Map Events with reasonable
commercially diligence. The term "Force Majeure Delay" shall
include delays to the extent reasonably attributable to the
issuance, by the governing authority or agency in connection
with Landlord's application for approval of the Mount Pleasant
Subdivision Plan, of a "positive declaration" in connection
with its SEQRA (as hereinafter defined) review and shall
include the limitations period for any legal proceeding
challenging the applicable Map Event and, if challenged, the
period of time until a final non-appealable judicial
determination is made.
18.1.5 Cooperation, Access and Reporting. Tenant shall cooperate
with Landlord in the pursuit of the Greenburgh Map Event and
the Mount Pleasant Map Event, to the extent requested to do so
by Landlord, including, without limitation, Tenant's
compliance with the Greenburgh Site Plan Approval. Landlord
shall bear all costs incurred in pursuing the Map Events,
except that (i) Tenant shall bear any reasonable costs
incurred in cooperating with Landlord in the pursuit of the
Map Events as contemplated hereby, and (ii) in the event of a
"positive declaration" as described in Section 18.2.2 of this
Ground Lease, then the cost sharing provisions of such Section
18.2.2 shall apply.
Upon reasonable notice and request from Landlord, Tenant shall afford
Landlord reasonable access to the Real Property for the purpose of conducting
surveys, architectural, engineering and other studies in order to facilitate the
achievement of such Map Events, provided that (a) Landlord shall not conduct any
invasive physical, soil and/or geotechnical investigations, provided, however
that Landlord may undertake such investigations if required in connection with
achieving the Map Events but only so long as such investigations do not disrupt
Tenant's usage of the Real Property, (b) Landlord shall not exercise such access
rights in a manner which interferes with the use rights of any subtenant of
Tenant or the rights of any other parties under any Permitted Exceptions, or in
a manner which otherwise unreasonably interferes with Tenant's use or enjoyment
of the Projects, (c) Landlord shall have no authority to allow any liens to be
placed against the Project, and Landlord shall indemnify, protect, defend and
hold Tenant harmless from all Claims asserted against Tenant as a result of
Landlord's (or its agent's, employee's or representative's) access onto the
Project, including reasonable attorney's fees incurred in connection with any
such Claim, and (d) prior to exercising any such right of access, Landlord shall
deliver to Tenant a certificate of insurance (prepared on an insurance
certificate form known as "XXXXX 28") from an insurance company reasonably
satisfactory to Tenant, naming Tenant, and its affiliates and any Leasehold
Mortgagee (and such other parties designated by Tenant) as an additional
insured, which certificate shall evidence a policy of general liability
insurance written on an occurrence basis utilizing standard unmodified coverage
forms, including a contractual liability endorsement, contractor's protective
liability, property damage and personal injury coverage providing for a total
combined single limit for bodily injury and property damage of $6,000,000.00,
with a deductible of no more than $25,000.00, employer's liability in the amount
of $500,000.00 (each accident) and the statutory limit for worker's compensation
insurance.
During the course of Landlord's pursuit of the Map Events,
Landlord shall provide brief periodic reports (at least as
frequently as once every calendar month) to Tenant generally
summarizing the progress being made by Landlord in pursuing
the Map Events, the nature of any new
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circumstances reasonably anticipated to pose as obstacles to
the achievement of the Map Events, and the anticipated
schedule for achievement of the Map Events. Landlord shall
endeavor to provide Tenant with advance notice of meetings
with Governmental Authority officials that may be pertinent to
the pursuit of the Map Events, and Landlord shall provide
Tenant with an opportunity to participate in such meetings, to
the extent reasonably feasible to do so.
18.2 FORBEARANCE FROM PURSUIT OF SITE PLAN APPROVALS.
18.2.1 Greenburgh. Until such time as the Greenburgh Map Event has
occurred, neither Tenant nor Landlord shall pursue, with
respect to the portions of the Subject Land within which they
may own a fee or leasehold interest, respectively, any new
site plan approval, any change in any existing site plan
approval, or any change in any zoning or other land use
restriction or entitlement applicable to such portions of the
Subject Land; provided, however that (i) Landlord may pursue
an extension of the Greenburgh Site Plan Approval for the
Greenburgh Core Campus currently in effect, provided that
Tenant has consented thereto, such consent not to be
unreasonably withheld and (ii) any such actions that are
permitted to be taken by Madison Square Garden, L.P. in
respect of MSG Parcel pursuant to the existing site plan
approval for the MSG Parcel shall be permitted. The Parties
hereby agree to cooperate in good faith to obtain an extension
of the Greenburgh Site Plan Approval if the Parties mutually
determine, in their reasonable discretion, that such extension
is necessary in connection with the use of the Subject Land
located in Greenburgh and the performance of Landlord's
obligations with respect to the Greenburgh Map Event contained
herein. Notwithstanding the foregoing, either Landlord or
Tenant may pursue a new Site Plan or an amendment of the site
plan approvals existing as of the Effective Date with respect
to the portions of the Subject Land in Greenburgh within which
they may own a fee or a leasehold interest, respectively, (but
in such event Landlord shall not be permitted to pursue any
site plan approval with respect to the Real Property) if the
Greenburgh Map Event has not occurred on or prior to June 1,
2005. In such event, the parties shall proceed with a common
application for site plan approval for their respective
parcels covered by the Greenburgh Subdivision Plan and the
parties shall act diligently and cooperate in good faith to
achieve such site plan approvals and the Greenburgh Map Event,
including, without limitation, submitting any required
studies, reports and investigations, responding to comments
and requests for additional information and attending
conferences, hearings and meetings as needed. Tenant agrees
that Landlord shall be the lead party in the pursuit of the
approval of such common application and each party shall bear
its own costs thereof to the extent attributable to such
party's specific property and shall equitably share the costs
associated therewith which are general in nature.
18.2.2 Mount Pleasant. Until such time as the Mount Pleasant Map
Event has occurred, neither Tenant nor Landlord shall pursue,
with respect to the portions of the Subject Land within which
they may own a fee or
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leasehold interest, respectively, any new site plan approval, any change
in any existing site plan approval, or any change in any zoning or other
land use restriction or entitlement applicable to such portion of the
Subject Land. Notwithstanding the foregoing, if the Planning Board for the
Town of Mount Pleasant issues a "Positive Declaration" (as herein defined)
in connection with its consideration of the Mount Pleasant Subdivision
Plan, then the following provisions shall apply:
18.2.2.1 Landlord and Tenant shall proceed with a common application
for site plan approval (to the extent not already obtained)
for their respective parcels covered by the Mount Pleasant
Subdivision Plan and the parties shall act diligently and
cooperate in good faith to achieve such site plan approvals
and the Mount Pleasant Map Event, including, without
limitation, submitting any required studies, reports and
investigations, responding to comments and requests for
additional information and attending conferences, hearings and
meetings as needed. Tenant agrees that Landlord shall be the
lead party in the pursuit of the approval of such common
application and each party shall bear its own costs thereof to
the extent attributable to such party's specific property and
shall equitably share the costs associated therewith which are
general in nature.
18.2.2.2 For purposes of this Section 18, the term "POSITIVE
DECLARATION" means a determination by the Planning Board of
the Town of Mount Pleasant, in connection with its
consideration of the application for the Mount Pleasant
Subdivision Plan, pursuant to the New York State Environmental
Conservation Law and Rules and Regulations promulgated
thereunder at 6 NYCRR 617 and under the Code of the Town of
Mount Pleasant ("SEQRA") or another like determination to the
effect that, as a condition to the approval of the Mount
Pleasant Subdivision Map, the applicant, or a Governmental
Authority considering Approval of the Mount Pleasant
Subdivision Map, the applicant, or a Governmental Authority
considering Approval of the Mount Pleasant Subdivision Map,
must undertake a full SEQRA review, including an Environmental
Impact Statement (in lieu of an Environmental Assessment Form)
before the Town of Mount Pleasant legally may approve the
Mount Pleasant Subdivision Map.
18.2.3 Exceptions for Submission of Site Plans. Notwithstanding anything
contained herein to the contrary, if the Town of Mount Pleasant requests
a site plan to be delivered in connection with their consideration of the
Mount Pleasant Subdivision Plan, then Landlord and Tenant shall cooperate
in good faith to determine a reasonable intermediate solution to such
request.
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18.3 EASEMENTS.18.3.1 Easements. During the period that the parties are
pursuing the Map Events, they further shall negotiate in good faith
mutually acceptable, in each party's reasonable discretion, reciprocal and
other easements reasonably appropriate to be granted for the use and
benefit of the various parcels from and after the Map Events and the
separation of the ownership of the various parcels within the Subject Land
(as provided in Section 18.4 below). Such easements shall contain
provisions for location, sharing of expenses and maintenance charges and
customary indemnifications acceptable to Landlord and Tenant in their
reasonable discretion. Subject to the foregoing, Tenant (with respect to
the Greenburgh Core Campus and the Mount Pleasant Core Campus) and
Landlord (with respect to the balance of the parcels within the Subject
Land) each agrees to provide easement rights burdening their respective
properties to the extent reasonably necessary or appropriate for the use
of the other properties (provided that neither party shall be obligated to
agree to a particular easement if the same would unreasonably interfere
with the value, use or enjoyment of the real property burdened by such
easement). The Parties shall execute and deliver such Easements prior to
the applicable Transfer Date to the extent that it is condition of any Map
Event and is otherwise reasonable under the circumstances. Said Easements
shall include, without limitation:
1.1.1 An easement encumbering the Retail Parcel and permitting the owner
of the Mount Pleasant Campus to use the "Existing Parking Lot" depicted on
Exhibit A-2 for parking purposes until the opening of the "New Parking Lot"
shown generally in the area designated on Exhibit A-2, subject to the following
terms . Tenant agrees that it shall be required to abandon the use of the
"Existing Parking Lot" in the Retail Parcel upon completion of construction of
Tenant's contemplated parking improvements on the Mount Pleasant Core Campus,
but no later than twelve (12) months (such time period being subject to delay
caused by or due to or resulting from delays or limitations imposed by any
Governmental Authority with jurisdiction over the activity at issue (a "Tenant
Force Majeure Delay")) following the Mount Pleasant Transfer Date with the
understanding that Tenant shall act diligently and cooperate with Landlord in an
effort to complete the construction of Tenant's parking improvements as
expeditiously as possible. Tenant shall cooperate with Landlord in good faith to
commence work for the pursuit of any Governmental Authority approvals necessary
to construct such parking improvements within 30 days after the occurrence of
the Mount Pleasant Transfer Date (such time period being subject to Tenant Force
Majeure Delays). It is hereby understood and agreed that the date for completion
or commencement of construction of the temporary parking area described above
shall be extended by one (1) day for each day that such construction or
commencement is delayed by reason of a Tenant Force Majeure Delay.
18.3.2 An easement or easements pertaining to the Greenburgh Core
Campus and other applicable water main and water supply
agreements.
18.4 CONVEYANCE OF PARCELS FOLLOWING APPROVAL OF SUBDIVISION MAPS.
Landlord shall provide Tenant with written notice of the occurrence of the
Greenburgh Map Event or the Mount Pleasant Map Event, as applicable, within
three (3) business days after the occurrence of said Map Event. The written
notice shall include a copy of reasonable documentation evidencing the Map
Event, and Landlord shall provide a copy of related
31
resolution promptly after it becomes available. The written notice further shall
specify the outside date under applicable law for the due filing of any appeal,
including but not limited to proceedings commenced pursuant to CPLR Article 78.
Landlord shall not be deemed to have obtained the Greenburgh Map Event or the
Mount Pleasant Map Event, as applicable, until the limitations period for any
legal proceeding challenging the applicable Map Event has expired without a
legal challenge. If the Greenburgh Map Event or the Mount Pleasant Map Event is
challenged, the challenged applicable Map Event shall not be considered to have
occurred until there is a final non-appealable judicial determination upholding
the Map Event. Landlord further shall provide Tenant with written notice within
three (3) business days following the expiration of said approval period (or the
successful disposition of any duly filed appeal in a manner which upholds the
Approvals constituting the Map Event). Said notice shall set forth a "Transfer
Date", which date (unless otherwise agreed by Tenant) shall be no earlier than
ten (10) business days, and no later than fifteen (15) business days, after the
expiration of such appeal period (or such successful resolution of said appeal),
for the following to occur:
18.4.1 Greenburgh Transfer Date. In the case of the Greenburgh Map Event,
or the pertinent Transfer Date (the "Greenburgh Transfer Date") the
following shall occur:
18.4.1.1 Landlord and Tenant shall execute and deliver
documentation evidencing the termination of the Ground
Lease with respect to the Greenburgh Core Campus. Said
documentation shall confirm that the parties shall have
no further obligations under the Ground Lease with
respect to the Greenburgh Core Campus, except those
which survive any such termination of the Ground Lease
pursuant to the terms hereof.
18.4.1.2 Landlord shall execute and deliver to Tenant any Easement
documentation establishing Easements (1) encumbering
portions of the Subject Property other than the
Greenburgh Core Campus, or the Mount Pleasant Core
Campus, (2) running in favor of the Greenburgh Core
Campus, and (3) approved by the parties pursuant to the
Section 18.3.
18.4.1.3 Similarly, Tenant shall execute and deliver to Landlord
Easement documentation establishing Easements (1)
encumbering portions of the Greenburgh Core Campus, (2)
running in favor of portions of the Subject Land other
than the Greenburgh Core Campus or the Mount Pleasant
Core Campus and (3) approved by the parties pursuant to
Section 18.3.
18.4.1.4 Landlord shall execute and deliver to Tenant a bargain and
sale deed (with covenants) conveying to Tenant fee
simple title to the Greenburgh Core Campus, provided
however that if Tenant can obtain insurable title to the
Greenburgh Core Campus through a conveyance from
Landlord by a bargain and sale deed (without covenants),
such bargain and sale deed shall be sufficient.
32
18.4.1.5 The documentation to be delivered to Tenant pursuant to
Sections 18.4.1.2 and 18.4.1.4 above shall convey title free
and clear of any exceptions to title other than (i) the
Permitted Exceptions (ii) any other exceptions created or
approved by Tenant and (iii) any Easements approved by the
parties pursuant to Section 18.3 or otherwise contemplated by
this Ground Lease. The documentation to be delivered to
Landlord pursuant to Section 18.4.1.3 above shall convey title
free and clear of any exceptions to title other than (i) the
Permitted Exceptions, (ii) any other exceptions created or
approved by Landlord and (iii) any Easements burdening the
portions of the Subject Land other than the Greenburgh Core
Campus and approved by the Parties pursuant to Section 18.3.
18.4.2 Mount Pleasant Transfer Date. In the case of the Mount Pleasant Map
Event, or the pertinent Transfer Date (the "Mount Pleasant Transfer
Date") the following shall occur:
18.4.2.1 Landlord and Tenant shall execute and deliver documentation
evidencing the termination of the Ground Lease with respect to
the Mount Pleasant Core Campus. Said documentation shall
confirm that the parties shall have no further obligations
under the Ground Lease with respect to the Mount Pleasant Core
Campus, except those which survive any such termination of the
Ground Lease pursuant to the terms hereof.
18.4.2.2 Landlord shall execute and deliver to Tenant any Easement
documentation establishing Easements (1) encumbering portions
of the Subject Property other than the Greenburgh Core Campus
or the Mount Pleasant Core Campus, (2) running in favor of the
Mount Pleasant Core Campus, and (3) approved by the parties
pursuant to the Section 18.3.
18.4.2.3 Similarly, Tenant shall execute and deliver to Landlord
Easement documentation establishing Easements (1) encumbering
portions of the Mount Pleasant Core Campus, (2) running in
favor of portions of the Subject Land other than the Mount
Pleasant Core Campus or the Greenburgh Core Campus and (3)
approved by the parties pursuant to Section 18.3.
18.4.2.4 Landlord shall execute and deliver to Tenant a bargain and
sale deed with covenants conveying to Tenant fee simple title
to the Mount Pleasant Core Campus, provided however that if
Tenant can obtain insurable title to the Mount Pleasant Core
Campus through a conveyance from Landlord by a bargain and
sale deed (without covenants), such bargain and sale deed
shall be sufficient..
18.4.2.5 The documentation to be delivered to Tenant pursuant to
Sections 18.4.2.2 and 18.4.2.4 above shall convey title free
and
33
clear of any exceptions to title other than (i) the
Permitted Exceptions (ii) any other exceptions created
or approved by Tenant and (iii) any Easements approved
by the parties pursuant to Section 18.3 or otherwise
contemplated by this Ground Lease. The documentation to
be delivered to Landlord pursuant to Section 18.4.2.3
above shall convey title free and clear of any
exceptions to title other than (i) the Permitted
Exceptions, (ii) any other exceptions created or
approved by Landlord and (iii) any Easements burdening
the portions of the Subject Land other than the Mount
Pleasant Core Campus and approved by the Parties
pursuant to Section 18.3. If Tenant fails to record the
bargain and sale deed and any other documentation
required to be recorded or filed pursuant to Sections
18.4.2.2 and 18.4.2.4 above promptly following delivery
thereof to Tenant, Landlord shall, upon five (5) days'
prior notice to Tenant, record such bargain and sale
deed and any other documentation required to be recorded
or filed pursuant to Sections 18.4.2.2 and 18.4.2.4
above at Tenant's expense.
18.4.3 Holdback Amount. Tenant shall not be obligated to pay to Landlord
any consideration in connection with the transfers contemplated in
this Section 18.4 (it being understood that the Initial Rent
payments under this Ground Lease constitutes adequate consideration
for said transfer); provided, however, that if the later to occur of
the Greenburgh Transfer Date and the Mount Pleasant Transfer Date
occurs prior to the Outside Date, then on the later to occur of the
Greenburgh Transfer Date and the Mount Pleasant Transfer Date,
Landlord shall be entitled to distribution of the Holdback Amount
from the escrow referenced in Section 4.1.2.
18.4.4 "As Is". On each Transfer Date, the pertinent real property
interest shall be conveyed on an "AS IS, WHERE IS" basis (provided
that nothing herein shall be construed as relieving either party
from any representations, warranties or other obligations which (a)
by the terms of the Executory Lease Agreement, survive the "Lease
Closing" thereunder (but, in the case of Landlord, subject to the
limitations on Landlord's representations, warranties and covenants
set forth in the Executory Lease Agreement) or (b) arise out of this
Ground Lease and pertain to circumstances occurring prior to the
Transfer Date or which survive the termination of this Ground Lease
pursuant to the terms hereof).
18.5 FURTHER ASSURANCES. Landlord and Tenant shall take such further
actions, and execute such further documents, as either reasonably may request in
order to consummate the transactions contemplated by this Article 18 (provided
that neither party shall be obligated to take any such requested actions or
documents which are inconsistent with the express terms of this Article 18).
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ARTICLE 19.
MISCELLANEOUS.
19.1 SUCCESSORS AND ASSIGNS. All agreements, terms, provisions and
conditions in this Ground Lease shall extend and inure to the benefit of, and be
binding upon, the successors and assigns of the parties hereto.
19.2 CAPTIONS. The captions of this Ground Lease are for convenience only,
and are not to be construed as a part of this Ground Lease, and shall not be
construed as defining or limiting in any way the scope or intent of the
provisions hereof.
19.3 SEVERABILITY. If any term or provision of this Ground Lease shall be
to any extent held invalid or unenforceable, the remaining terms and provisions
of this Ground Lease shall not be affected thereby, but each term and provision
of this Ground Lease shall be valid and be enforced to the fullest extent
permitted by law.
19.4 CHOICE OF LAW. This Ground Lease shall be construed and enforced in
accordance with the laws of the State of New York.
19.5 ENTIRE AGREEMENT. This Ground Lease together with any documents by
and between Landlord and Tenant entered into concurrently with the execution of
this Ground Lease contain all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Ground Lease and such
concurrent agreements, and no prior agreement or understanding pertaining to any
such matter shall be effective for any purpose. No provision of this Ground
Lease may be amended or added to except by an agreement in writing signed by the
parties hereto or their respective successors in interest. Notwithstanding the
foregoing, nothing herein shall limit the rights or obligations of Landlord and
Tenant under the Executory Lease Agreement, to the extent that the same survive
the "Lease Closing" thereunder (but subject to the limitations on Landlord's
representations, warranties and covenants set forth in the Executory Lease
Agreement).
19.6 COUNTERPARTS. This Ground Lease may be executed in multiple
counterparts each of which taken together shall constitute one and the same
instrument.
19.7 LANDLORD/TENANT RELATIONSHIP. Nothing herein contained shall be
deemed or constructed by the parties hereto, nor by any third party, as creating
the relationship of principal and agent or of partnership or of joint venture
between the parties hereto.
19.8 WAIVER. Any waiver given by either party with respect to performance
by the other Party of any provision of this Ground Lease shall be construed only
as a waiver of the particular provision in question and only then with respect
to the particular failure to comply, and such waiver shall not be construed as a
waiver of any separate failure to comply or of any other provisions of this
Ground Lease.
19.9 PRONOUNS AND SINGULAR/PLURAL. Feminine or neuter pronouns shall be
substituted for those masculine form or vice versa, and the plural shall be
substituted for the singular number or vice versa, in the place or places herein
where the context may require such substitution or substitutions.
19.10 TIME OF ESSENCE. Time is hereby declared to be of the essence in
this Ground Lease and of each and every covenant, term, condition or provision
hereof.
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19.11 FAIR MEANING. The language in all parts of this Ground Lease shall
be in all cases construed as a whole according to its fair meaning, and not
strictly for nor against either Landlord or Tenant.
19.12 SECTION REFERENCES. Whenever the terms "Section" or "Exhibit" is
used herein, such term shall be used with reference to a Section of this
Agreement or an Exhibit that is attached to this Agreement unless the context
clearly dictates that such reference shall be to a different document. Each
Exhibit attached hereto is hereby incorporated herein.
19.13 GROUND LEASE REVIEWED. Landlord and Tenant have carefully read and
reviewed this Ground Lease and each term and provision contained herein, and
each of them has referred this Ground Lease to its own legal counsel for review
and advice as to the legal consequences of this Ground Lease. Landlord and
Tenant acknowledge their informed and voluntary consent thereto. Landlord and
Tenant further agree that, at the time this Ground Lease is executed, the terms
of this Ground Lease are commercially reasonable and effectuate the intent and
purpose of Landlord and Tenant with respect to the Real Property.
19.14 OBLIGATIONS AS COVENANTS. Each obligation of any Party hereto
expressed in this Ground Lease even though not expressed as a covenant, is to be
considered a covenant for all purposes.
19.15 ADDITIONAL DOCUMENTS. The parties hereto agree to execute,
acknowledge and deliver such further documents as may be necessary or proper to
carry out the purpose and intent of this Ground Lease.
19.16 WAIVER OF JURY TRIAL. LANDLORD AND TENANT IRREVOCABLY WAIVE ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM, OR OTHER
LITIGATION ARISING OUT OF OR RELATING TO THIS GROUND LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT REGARDING THE PREMISES, ENFORCEMENT OF THIS GROUND LEASE,
TENANT'S USE OR OCCUPANCY OF THE PREMISES, ANY CLAIM OF INJURY OR DAMAGE ARISING
BETWEEN LANDLORD AND TENANT, OR ANY ACTIONS OF LANDLORD IN CONNECTION WITH OR
RELATING TO THE ENFORCEMENT OF THIS GROUND LEASE.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Ground Lease as of the date first above written.
LANDLORD:
EASTVIEW HOLDINGS LLC,
a
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By:
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its manager
By:
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Name:
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Title:
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By:
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Name:
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Title:
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TENANT:
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a
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By:
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Name:
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Title:
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[GROUND LEASE SIGNATURE PAGE]
