Exhibit 10.2
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty"), dated as of
the 6th day of March, 2009, made by The New York Times Company, a New York
corporation ("NYTC"), and The New York Times Sales Company, a Massachusetts
business trust corporation ("NYT Sales"), (NYTC and NYT Sales, collectively the
"Guarantor"), to 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord").
WITNESSETH:
WHEREAS, Landlord, as lessor, has entered into a Lease Agreement of
even date herewith (the "Lease"), in which Landlord leased to NYT REAL ESTATE
COMPANY LLC, a New York limited liability company ("Tenant"), certain leasehold
condominium premises situate at 000 Xxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx (the
"Leased Premises");
WHEREAS, all of the issued and outstanding stock of Tenant is owned by
NYTC; and
WHEREAS, the execution and delivery by Guarantor of this Guaranty is a
material inducement to Landlord to execute the Lease, and Guarantor expects to
derive financial benefit from the Lease.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged by
Guarantor, and intending to be legally bound, Guarantor hereby covenants and
agrees as follows:
ARTICLE I
GUARANTEE
Section 1.01 Guaranteed Obligations. Guarantor (and each of them
individually) hereby jointly and severally absolutely unconditionally and
irrevocably guarantees to and becomes surety for Landlord and its successors and
assigns for the due, punctual and full payment, performance and observance of,
and covenants with Landlord to duly, punctually and fully pay and perform, the
following (collectively, the "Guaranteed Obligations"):
(a) the full and timely payment of all Rent and all other amounts due
or to become due to Landlord from Tenant under the Lease or any other agreement
or instrument executed in connection therewith, including without limitation the
Seller/Lessee's Certificate (a copy of which is attached hereto as Exhibit A) of
even date therewith in favor of Landlord ("Guarantor's Certificate"), whether
now existing or hereafter arising, contracted or incurred (collectively, the
"Monetary Obligations"); and
(b) all covenants, agreements, terms, obligations and conditions,
undertakings, duties representations and warranties contained in the Lease to be
observed, performed by or imposed upon Tenant under the Lease, whether now
existing or hereafter arising, contracted or
incurred (collectively, the "Performance Obligations"), as and when such
payment, performance or observance shall become due (whether by acceleration or
otherwise) in accordance with the terms of the Lease, which terms are
incorporated herein by reference. The Guaranteed Obligations shall not be
affected by the Tenant's voluntary or involuntary bankruptcy, assignment for the
benefit of creditors, reorganization or similar proceeding affecting the Tenant.
If for any reason any Monetary Obligation shall not be paid promptly when due
prior to the expiration of any applicable notice and cure period set forth in
the Lease, Guarantor shall, immediately upon demand, pay the same to Landlord
when due under the terms of the Lease. If for any reason Tenant shall fail to
perform or observe any Performance Obligation prior to the expiration of any
applicable notice and cure period set forth in the Lease, Guarantor shall,
immediately upon demand, perform and observe the same or cause the same to be
performed or observed. If, by reason of any bankruptcy, insolvency or similar
laws affecting the rights of creditors, Landlord shall be prohibited from
exercising any of Landlord's rights and remedies, including, but not limited to,
enforcement of the terms of the Lease against the Tenant, then as to Guarantor
such prohibition shall be of no force and effect, and Landlord shall have the
right to make demand upon, and receive payment and/or performance from Guarantor
of all Guaranteed Obligations and Guarantor's obligation in this respect shall
be primary and not secondary. Guarantor acknowledges and agrees that the
Monetary Obligations include, without limitation, Rent and other sums accruing
and/or becoming due under the Lease following the commencement by or against
Tenant of any action under the United States Bankruptcy Code or other similar
statute. Guarantor, upon such demand by Landlord, shall pay all Monetary
Obligations to Landlord at the address and in the manner set forth in the Lease
or at such other address as Landlord shall notify Guarantor in writing.
Section 1.02 Guarantee Unconditional. The obligations of Guarantor
hereunder are continuing, absolute and unconditional, irrespective of any
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a guarantor or surety. Without limiting the generality
of the foregoing, the obligations of Guarantor hereunder shall remain in full
force and effect without regard to, and shall not be released, discharged,
abated, impaired or in any way affected by:
(a) any amendment, modification, extension, renewal or supplement to
the Lease or any termination of the Lease or any interest therein, provided,
however, notwithstanding any provision to the contrary set forth in this
Guaranty or the Lease, Guarantor shall not be bound by any amendment,
modification or supplement to the Lease entered into by a tenant under the Lease
that is not an Affiliate (as hereinafter defined) of Guarantor, unless Guarantor
shall have consented in writing to such amendment, modification or supplement.
As used herein, "Affiliate" of any Person shall mean any Person which shall (i)
control, (ii) be under the control of, or (iii) be under common control with
such Person (the term "control" as used herein shall be deemed to mean ownership
of more than 50% of the outstanding voting stock of a corporation or other
majority equity and control interest if such Person is not a corporation) or the
power to direct or cause the direction of the management or policies of such
Person;
(b) any assumption by any party of Tenant's or any other party's
obligations under, or Tenant's or any other party's assignment of any of its
interest in, the Lease;
(c) any exercise or nonexercise of or delay in exercising any right,
remedy, power or privilege under or in respect of this Guaranty or the Lease or
pursuant to applicable law (even if any such right, remedy, power or privilege
shall be lost thereby), including, without limitation, any so-called self-help
remedies, or any waiver, consent, compromise, settlement, indulgence or other
action or inaction in respect thereof;
(d) any change in the financial condition of Tenant, the voluntary or
involuntary liquidation, dissolution, sale of all or substantially all of the
assets, marshalling of assets and liabilities, receivership, conservatorship,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting Landlord, Tenant or Guarantor or any of their assets or any
impairment, modification, release or limitation of liability of Landlord, Tenant
or Guarantor or their respective estates in bankruptcy or of any remedy for the
enforcement of such liability resulting from the operation of any present or
future provision of the United States Bankruptcy Code or other similar statute
or from the decision of any court;
(e) any extension of time for payment or performance of the Guaranteed
Obligations or any part thereof;
(f) the genuineness, invalidity or unenforceability of all or any
portion or provision of the Lease;
(g) any defense that may arise by reason of the failure of Landlord to
file or enforce a claim against the estate of Tenant in any bankruptcy or other
proceeding;
(h) the release or discharge of or accord and satisfaction with of
Tenant or any other person or entity from performance or observance of any of
the agreements, covenants, terms or conditions contained in the Lease by
operation of law or otherwise;
(i) the failure of Landlord to keep Guarantor advised of Tenant's
financial condition, regardless of the existence of any duty to do so;
(j) any assignment by Landlord of all of Landlord's right, title and
interest in, to and under the Lease and/or this Guaranty as collateral security
for any Loan;
(k) any present or future law or order of any government (de jure or
de facto) or of any agency thereof purporting to reduce, amend or otherwise
affect the Guaranteed Obligations or any or all of the obligations, covenants or
agreements of Tenant under the Lease (except by payment in full of all
Guaranteed Obligations) or Guarantor under this Guaranty (except by payment in
full of all Guaranteed Obligations);
(l) the default or failure of Guarantor fully to perform any of its
obligations set forth in this Guaranty;
(m) any actual, purported or attempted sale, assignment or other
transfer by Landlord of the Lease or the Leased Premises or any part thereof or
of any of its rights, interests or obligations thereunder;
(n) any merger or consolidation of Tenant into or with any other
entity, or any sale, lease, transfer or other disposition of any or all of
Tenant's assets or any sale, transfer or other disposition of any or all of the
shares of capital stock or other securities of Tenant or any affiliate of Tenant
to any other person or entity;
(o) Tenant's failure to obtain, protect, preserve or enforce any
rights in or to the Lease or the Leased Premises or any interest therein against
any party or the invalidity or unenforceability of any such rights; or
(p) any other event, action, omission or circumstances which might in
any manner or to any extent impose any risk to Guarantor or which might
otherwise constitute a legal or equitable release or discharge of a guarantor or
surety, all of which may be given or done without notice to, or consent of,
Guarantor.
No setoff, claim, reduction or diminution of any obligation, or any
defense of any kind or nature which Tenant or Guarantor now has or hereafter may
have against Landlord shall be available hereunder to Guarantor against
Landlord.
Section 1.03 Disaffirmance of Lease. Guarantor agrees that, in the
event of rejection or disaffirmance of the Lease by Tenant or Tenant's trustee
in bankruptcy pursuant to the United States Bankruptcy Code or any other law,
Guarantor will, if Landlord so requests, assume all obligations and liabilities
under the express terms of the Lease, to the same extent as if Guarantor had
been originally named instead of Tenant as a party to the Lease and there had
been no rejection or disaffirmance; and Guarantor will confirm such assumption
in writing at the request of Landlord on or after such rejection or
disaffirmance. Guarantor, upon such assumption, shall have all rights of Tenant
under the Lease (to the extent permitted by law).
Section 1.04 No Notice or Duty to Exhaust Remedies. Guarantor hereby
waives notice of any default in the payment or non-performance of any of the
Guaranteed Obligations (except as expressly required hereunder), diligence,
presentment, demand, protest and all notices of any kind. Guarantor agrees that
liability under this Guaranty shall be primary and hereby waives any requirement
that Landlord exhaust any right or remedy, or proceed first or at any time,
against Tenant or any other guarantor of, or any security for, any of the
Guaranteed Obligations. Guarantor hereby waives notice of any acceptance of this
Guaranty and all matters and rights which may be raised in avoidance of, or in
defense against, any action to enforce the obligations of Guarantor hereunder.
Guarantor hereby waives any and all suretyship defenses or defenses in the
nature thereof without in any manner limiting any other provision of this
Guaranty. This Guaranty constitutes an agreement of suretyship as well as of
guaranty, and Landlord may pursue its rights and remedies under this Guaranty
and under the Lease in whatever order, or collectively, and shall be entitled to
payment and performance hereunder notwithstanding any action taken by Landlord
or inaction by Landlord to enforce any of its rights or remedies against any
other guarantor, person, entity or property whatsoever. This Guaranty is a
guaranty of payment and performance and not merely of collection.
Landlord may pursue its rights and remedies under this Guaranty notwithstanding
any other guarantor of or security for the Guaranteed Obligations or any part
thereof. Guarantor authorizes
Landlord, at its sole option, without notice or demand and without affecting the
liability of Guarantor under this Guaranty, to terminate the Lease, either in
whole or in part, in accordance with its terms.
Each default on any of the Guaranteed Obligations shall give rise to a separate
cause of action and separate suits may be brought hereunder as each cause of
action arises or, at the option of Landlord any and all causes of action which
arise prior to or after any suit is commenced hereunder may be included in such
suit.
Section 1.05 Subrogation. Notwithstanding any payments made or
obligations performed by Guarantor by reason of this Guaranty (including but not
limited to application of funds on account of such payments or obligations),
Guarantor hereby irrevocably waives and releases, until 366 days after payment
in full of the Guaranteed Obligations, any and all rights it may have, at any
time, whether arising directly or indirectly, by operation of law, contract or
otherwise, to assert any claim against Tenant or any other person or entity or
against any direct or indirect security on account of payments made or
obligations performed under or pursuant to this Guaranty, including without
limitation any and all rights of subrogation, reimbursement, exoneration,
contribution or indemnity, and any and all rights that would result in Guarantor
being deemed a "creditor" under the United States Bankruptcy Code of Tenant or
any other person or entity. If any payment shall be paid to Guarantor on account
of any subrogation rights, each and every amount so paid shall immediately be
paid to Landlord to be credited and applied upon any of the Guaranteed
Obligations, whether or not then due and payable. Every claim or demand which
Guarantor may have against Tenant shall be fully subordinate to all Guaranteed
Obligations.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01 Representations and Warranties. The representations and
warranties made by Guarantor in the Guarantor's Certificate (a copy of which is
attached hereto as Exhibit B) hereby are incorporated by reference herein (with
all related definitions). Guarantor hereby represents and warrants to Landlord
as provided therein.
Section 2.02 Financial Statements; Books and Records.
(a) Guarantor shall deliver to Landlord and to Lender within
seventy-five (75) days of the close of each fiscal year of Guarantor, annual
audited financial statements of Guarantor (which must include Tenant as part of
the Tenant Group) certified by a nationally recognized firm of independent
certified public accountants. Guarantor also shall furnish to Landlord within
thirty (30) days after the end of each of the three (3) remaining fiscal
quarters unaudited financial statements and all other quarterly reports of
Guarantor, certified by Guarantor's chief financial officer, and all filings, if
any, of Form 10-K, Form 10-Q and other required filings with the Securities and
Exchange Commission pursuant to the provisions of the Securities Exchange Act of
1934, as amended, or any other Law. All financial statements of Guarantor shall
be prepared in accordance with GAAP consistently applied. All annual financial
statements shall be accompanied (i) by an opinion of said accountants stating
that (A) there are no qualifications as to the scope of the audit and (B) the
audit was performed in accordance with
GAAP and (ii) by the affidavit of the president or a vice president of
Guarantor, dated within five (5) days of the delivery of such statement, stating
that (C) the affiant knows of no Event of Default, or event which, upon notice
or the passage of time or both, would become an Event of Default which has
occurred and is continuing hereunder or, if any such event has occurred and is
continuing, specifying the nature and period of existence thereof and what
action Guarantor has taken or proposes to take with respect thereto and (D)
except as otherwise specified in such affidavit, that Guarantor has fulfilled
all of its obligations under this Guaranty which are required to be fulfilled on
or prior to the date of such affidavit. Notwithstanding any of the foregoing to
the contrary, so long as the Guarantor is a public company and the consolidated
quarterly and annual financials of Guarantor (which must include Tenant as a
part of the Tenant Group) that Guarantor otherwise would be required hereinabove
to cause to be delivered are available to Landlord via XXXXX or other online
service at no material cost to Landlord, then Landlord agrees that it shall
obtain such quarterly and annual financials through such service and that
Guarantor shall not be required to make the physical deliveries required
hereinabove. In the event that Landlord (or any direct or indirect parent
company) is required to disclose Tenant's or Guarantor's financial statements,
as the case may be (in whole or in summary form), in order to comply with its
public filing and disclosure requirements under the rules or regulations
promulgated by the Securities & Exchange Commission ("SEC"), then Guarantor
shall cause the certified public accountants that audited such financial
statements to provide Landlord with written consent to allow such auditor's
report to be disclosed and/or incorporated by reference into Landlord's or its
ultimate parent company's SEC filings.
Section 2.03 Notice of Certain Events. Promptly upon becoming aware
thereof, Guarantor shall give Landlord notice of (i) the commencement or
existence of any proceeding by or before any duly constituted governmental
authority or agency against or affecting Guarantor which, if adversely decided,
would have a material adverse effect on the financial condition of Guarantor or
on its ability to perform its obligations hereunder or (ii) any material adverse
change in the business, operations or condition, financial or otherwise, of
Guarantor, to the extent the ability of Guarantor to perform its obligations
hereunder is materially adversely affected.
Section 2.04 Estoppel Certificates. Guarantor shall, at any time upon
not less than ten (10) days' prior written request by Landlord or Lender,
deliver to the party requesting the same a statement in writing, executed by the
president or a vice president or other duly authorized officer of Guarantor,
certifying (i) that, except as otherwise specified, this Guaranty is unmodified
and in full force in effect, (ii) that Guarantor is not in default hereunder and
that no event has occurred or condition exists which with the giving of notice
or the passage of time or both would constitute a default hereunder, (iii) that
Guarantor has no defense, setoff or counterclaim against Landlord arising out of
or in any way related to this Guaranty, and (iv) that, except as otherwise
specified, there are no proceedings pending against Guarantor before any court,
arbiter or administrative agency which, if adversely decided, could have a
material adverse effect on the financial condition of Guarantor or on its
ability to perform its obligations hereunder.
Section 2.05 Guarantor's Assets. NYTC hereby represents and warrants
that all material assets (collectively, the "Strategic Assets") necessary for
the operation of Guarantor's business of reporting, collecting, publishing and
distributing news and related content through (i)
The New York Times newspaper and the printing and sales thereof, and (ii)
xxxxxxx.xxx and its distribution or dissemination, including, in any case, all
material intellectual property rights (the "IP Assets"), including, without
limitation, all logos, copyrights, patents, trademarks and service marks for The
New York Times and xxxxxxx.xxx, and all licenses and web addresses, is held by
Guarantor either directly through its divisions such as, The New York Times News
Services, xxxxxxx.xxx, and The New York Times Newspaper, or indirectly through
its wholly-owned Subsidiary, The New York Times Sales Company. If any material
portion of the Strategic Assets shall be sold, assigned, conveyed or otherwise
transferred to any Affiliate or Subsidiary of Guarantor then, concurrently with
such transfer, such Affiliate or Subsidiary, as the case may be, shall execute a
counterpart of this Guaranty as an additional Guarantor hereunder.
ARTICLE III
EVENTS OF DEFAULT
Section 3.01 Events of Default. The occurrence of any one or more of
the following shall constitute an "Event of Default" under this Guaranty:
(a) a failure by Guarantor to make any payment of any Monetary
Obligation within five (5) days after demand by Landlord, regardless of the
reason for such failure;
(b) a failure by Guarantor duly to perform and observe, or a violation
or breach of, any other provision hereof not otherwise specifically mentioned in
this Section 3.01, in each case continuing for ten (10) Business Days after
written notice is given by Landlord;
(c) any representation or warranty made by Guarantor herein or in any
certificate, demand or request made pursuant hereto now or hereafter proves to
have been incorrect when made, in any material respect, and any such
incorrectness or failure remains uncured for five (5) days from the date on
which notice thereof is given by Landlord;
(d) Guarantor shall (A) voluntarily be adjudicated a bankrupt or
insolvent, (B) seek or consent to the appointment of a receiver for itself or
its assets, (C) file a petition seeking relief under the bankruptcy or other
similar laws of the United States, any state or any jurisdiction, (D) make a
general assignment for the benefit of creditors, or (E) be unable to pay its
debts as they mature;
(e) a court shall enter an order, judgment or decree appointing,
without the consent of Guarantor, a receiver or trustee for it or approving a
petition filed against Guarantor which seeks relief under the bankruptcy or
other similar laws of the United States, any state or any jurisdiction, and such
order, judgment or decree shall remain undischarged or unstayed sixty (60) days
after it is entered;
(f) Guarantor shall be liquidated or dissolved or shall begin
proceedings towards its liquidation or dissolution;
(g) Guarantor shall, in a single transaction or series of
transactions, sell, assign or otherwise transfer or enter into an agreement to
sell, assign or otherwise transfer all or substantially all of its assets to any
Person or Persons, without the express prior written approval of Landlord in its
sole and absolute discretion, unless either (i) the Lease is assigned to and
assumed by the Person or Persons acquiring such assets pursuant to a written
agreement, or (ii) the Person or Persons acquiring such assets execute and
deliver to Landlord a guaranty of the Lease substantially in the form of this
Guaranty (in which case the Lease may be assigned to and assumed by an SPE or
other non-operating Subsidiary of such Person).
(h) Guarantor shall, in a single transaction or series of
transactions, sell, assign or otherwise transfer or enter into an agreement to
sell, assign or otherwise transfer all or substantially all of the Strategic
Assets to any Person without the express prior written approval of Landlord in
its sole and absolute discretion, unless either (i) the Lease is assigned to and
assumed by the Person or Persons acquiring such assets pursuant to a written
agreement, or (ii) the Person or Persons acquiring such assets execute and
deliver to Landlord a guaranty of the Lease substantially in the form of this
Guaranty (in which case the Lease may be assigned to and assumed by an SPE or
other non-operating Subsidiary of such Person).
(i) Guarantor shall, in a single transaction or series of
transactions, sell, assign or otherwise transfer or enter into an agreement to
sell, assign or otherwise transfer all or any material portion of the IP Assets
to any Person (other than to a wholly-owned Subsidiary that executes a
counterpart of this Guaranty as required by Section 2.05 hereof) without the
express prior written approval of Landlord in its sole and absolute discretion;
provided that, (x) the provision of Section 3.01(j) below shall not be applied
to permit any sale, assignment or other transfer of the IP Assets and (y) (i)
the sale, assignment or other transfer of all or substantially all of the IP
Assets shall be permitted under the terms of Section 3.01(g) above as a part of
the sale, assignment or other transfer of all or substantially all of the assets
of Guarantor or under the terms of Section 3.01(h) above as a part of the sale,
assignment or other transfer of all or substantially all of the Strategic Assets
to the same Person, and (ii) the sale, assignment or other transfer of all or
any material portion of the IP Assets shall be permitted if (A) the Person
acquiring the IP Assets is either (1) a Credit Entity or (2) a Subsidiary of
such Credit Entity, if such Credit Entity executes and delivers to Landlord a
guaranty of the Lease substantially in the form of this Guaranty, and (B) in any
case, the Lease is assigned to and assumed by the Person acquiring the IP Assets
pursuant to a written agreement.
(j) a failure by Guarantor to duly to perform and observe, or a
violation or breach of, the following:
1. Guarantor shall not, in a single transaction or series of
transactions (including any interim merger or consolidation), enter into an
agreement to sell or convey, transfer or lease or sell or convey, transfer or
lease any material portion of the Strategic Assets (an "Asset Transfer") to any
Person (other than an Excluded Disposition and other than an Asset Transfer to a
wholly-owned Subsidiary that executes a counterpart of this Guaranty as required
by Section 2.05 hereof) without the express prior written approval of Landlord
in its sole discretion; provided that, so long as such Asset Transfer is for a
valid corporate purpose to a bona fide third party operating company (and not
merely or primarily for the purpose of, or with the intent of, circumventing or
attempting to circumvent the restrictions contained in this Section 3.01(j) or
precipitating a sale of the Leased Premises back to Guarantor or any of its
Affiliates or Subsidiaries), Guarantor shall have the right to conduct an Asset
Transfer to a Person without Landlord's consent provided and upon condition
that:
(i) With respect to the first proposed Asset Transfer and
any subsequent proposed Asset Transfer if Guarantor has not previously provided
an Asset L/C: Guarantor shall make a written rejectable offer to Landlord (the
"Offer") to terminate the Lease and this Guaranty for a termination price not
less than the amount corresponding to the proposed month of such termination as
set forth on Schedule 1 annexed hereto and made a part hereof. If Landlord
rejects such offer, then Guarantor nevertheless shall have the right to conduct
such Asset Transfer provided that Guarantor delivers to Landlord a letter of
credit (the "Asset L/C") meeting the criteria for an acceptable "Letter of
Credit" as set forth in Paragraph 37 of the Lease in an amount equal to the
Basic Rent due under the Lease for the Lease Year in which Guarantor makes such
Offer at least five (5) Business Days prior the effective date of any such Asset
Transfer. If Landlord fails to accept such Offer by written notice to Guarantor
given within thirty (30) days after the date the Offer was given by Guarantor
then the Offer shall be deemed rejected by Landlord. Upon the tender of the
Asset L/C same shall constitute an additional Security Deposit (i.e., in
addition to and not in lieu of the Earnout Security Deposit deposited by Tenant
under the terms of the Lease concurrently with the execution of this Lease). The
Asset L/C shall be held, utilized and returned, and otherwise subject to, all of
the terms and provisions of Paragraph 37 (and Paragraph 22(a)) of the Lease
applicable to a Security Deposit; and
(ii) With respect to any subsequent proposed Asset Transfer
after Guarantor has delivered an Asset L/C: Guarantor shall make a written
rejectable offer to Landlord (the "Offer") to terminate the Lease and this
Guaranty for a termination price not less than the amount corresponding to the
proposed month of such termination as set forth on Schedule 1 annexed hereto and
made a part hereof. If Landlord rejects such offer, then Guarantor nevertheless
shall have the right to conduct such Asset Transfer and no additional Asset L/C
or other security shall be required in connection therewith.
Notwithstanding the foregoing, (A) the sale, conveyance or other
transfer or disposal of used, obsolete or worn-out items of equipment,
machinery, vehicles or other similar personal property assets that currently
constitute a part of the Strategic Assets, (B) the sale, conveyance or other
transfer of real or personal property assets the retention of which is no longer
deemed necessary, advisable or advantageous by Guarantor in connection with or
following the outsourcing of labor, services or production as a cost-savings
measure in accordance with Guarantor's strategic planning, and (C) the sale or
other transfer of any plant or facility or other real property asset or item of
capital equipment that is or will be closed, idle, underutilized or no longer
economical to operate and the retention of which is no longer deemed necessary,
advisable or advantageous by Guarantor as a result of the consolidation or
termination of lines of business in accordance with Guarantor's strategic
planning, shall not, in any case, by itself constitute an Asset Transfer even if
such asset or assets might otherwise constitute a material portion of the
Strategic Assets (a Asset Transfer meeting the criteria of (A), (B) or (C)
hereof, an "Excluded Disposition").
For purposes of clarification, NYTC's ownership and control of the
equity interests of NYT Sales shall be deemed an asset within the definition of
Strategic Assets and any sale, conveyance or other transfer by NYTC of a
controlling interest in NYT Sales, in a single transaction or series of
transactions, shall be subject to the terms governing an Asset Transfer under
this Section 3.05(j).
ARTICLE IV
MISCELLANEOUS
Section 4.01 Effect of Bankruptcy Proceedings. This Guaranty shall
continue to be effective, or be automatically reinstated, as the case may be, if
at any time payment, in whole or in part, of any of the Guaranteed Obligations
is rescinded or must otherwise be restored or returned by Landlord as a
preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency
or similar law, all as though such payment had not been made. Guarantor hereby
agrees to indemnify Landlord against, and to save and hold Landlord harmless
from any required return by Landlord, or recovery from Landlord, of any such
payment because of its being deemed preferential under applicable bankruptcy,
receivership or insolvency laws, or for any other reason. If an Event of Default
at any time shall have occurred and be continuing or exist and declaration of
default or acceleration under or with respect to the Lease shall at such time be
prevented by reason of the pendency against Tenant of a case or proceeding under
any bankruptcy or insolvency law, Guarantor agrees that, for purposes of this
Guaranty and its obligations hereunder, the Lease shall be deemed to have been
declared in default or accelerated with the same effect as if the Lease had been
declared in default and accelerated in accordance with the terms thereof, and
Guarantor shall forthwith pay and perform the Guaranteed Obligations in full
without further notice or demand.
Section 4.02 Further Assurances. From time to time upon the request of
Landlord, Guarantor shall promptly and duly execute, acknowledge and deliver any
and all such further instruments and documents as Landlord reasonably may deem
necessary or appropriate to confirm this Guaranty, to carry out the purpose and
intent hereof or to enable Landlord to enforce any of its rights hereunder.
Section 4.03 Amendments, Waivers, Etc. This Guaranty cannot be
amended, modified, waived, changed, discharged or terminated except by an
instrument in writing signed by the party against whom enforcement of such
amendment, modification, waiver, change, discharge or termination is sought.
Section 4.04 No Implied Waiver; Cumulative Remedies. No course of
dealing and no delay or failure of Landlord in exercising any right, power or
privilege under this Guaranty or the Lease shall affect any other or future
exercise thereof or exercise of any other right, power or privilege; nor shall
any single or partial exercise of any such right, power or privilege or any
abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power or
privilege. The rights and remedies of Landlord under this Guaranty are
cumulative and not exclusive of any rights or remedies which Landlord would
otherwise have under the Lease, at law or in equity.
Section 4.05 Notices. All notices, requests, demands, directions and
other communications (collectively "notices") under the provisions of this
Guaranty shall be in writing and shall be deemed to have been given and received
for all purposes when delivered in person or by Federal Express or other
reliable 24-hour delivery service or five (5) business days after being
deposited in the United States mail, by registered or certified mail, return
receipt requested, postage prepaid, addressed to the other party or when
delivery is refused. All notices shall be sent to the applicable party
addressed, if to Landlord, c/o W. P. Xxxxx & Co. LLC,
00 Xxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, to the attention of
Director, Asset Management, and notices to Tenant shall be sent c/o The New York
Times Company, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 to the attention of
General Counsel and CEO (in separate envelopes) and shall simultaneously be
given by Landlord to DLA Piper LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000 Attention: Xxxxxx X. Xxxxxxx, Esq. A copy of any notice given by
Tenant to Landlord shall simultaneously be given by Tenant to Xxxx Xxxxx LLP,
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Chairman, Real Estate Department, or in accordance with the last unrevoked
written direction from such party to the other party.
Section 4.06 Expenses. Guarantor agrees to pay or cause to be paid and
to save Landlord harmless against liability for the payment of all reasonable
out-of-pocket expenses, including fees and expenses of counsel for Landlord,
incurred by Landlord from time to time arising in connection with Landlord's
enforcement or preservation of rights under this Guaranty or the Lease,
including but not limited to such expenses as may be incurred by Landlord in
connection with any default by Guarantor of any of its obligations hereunder or
by Tenant of any of its obligations under the Lease.
Section 4.07 Survival. All obligations of Guarantor to make payments
to or indemnify Landlord shall survive the payment and performance in full of
the Guaranteed Obligations.
Section 4.08 Severability. If any term or provision of this Guaranty
or the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Guaranty, or the application of
such term or provision to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Guaranty shall be valid and enforceable to the fullest extent
permitted by law.
Section 4.09 Counterparts. This Guaranty may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
Section 4.10 Governing Law. (a) This Guaranty was negotiated in New
York, and accepted by Landlord in the State of New York, which State the parties
agree has a substantial relationship to the parties and to the underlying
transaction embodied hereby, and in all respects, including, without limiting
the generality of the foregoing, matters of construction, validity and
performance, this Guaranty and the obligations arising hereunder shall be
governed by, and construed in accordance with, the laws of the State of New York
applicable to contract made and performed in such State and any applicable law
of the United States of America. To the fullest extent permitted by law,
Guarantor hereby unconditionally and irrevocably waives any claim to assert that
the law of any other jurisdiction governs this Guaranty, and the Guaranty shall
be governed by and construed in accordance with the laws of the State of New
York pursuant to Section 5-1401 of the New York General Obligations Law.
(b) Any legal suit, action or proceeding against Guarantor or
Landlord arising out of or relating to this Guaranty shall be instituted in any
federal or state court in New York, New York, pursuant to Section 5-1402 of the
New York General Obligations Law, and Guarantor waives any objection which it
may now or hereafter have to the laying of venue of any such suit, action or
proceeding and hereby irrevocably submits to the jurisdiction of any such court
in any suit, action or proceeding.
Section 4.11 Jury Trial. GUARANTOR HEREBY WAIVES THE RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT
MATTER OF THIS GUARANTY. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND
VOLUNTARILY MADE BY GUARANTOR, AND GUARANTOR ACKNOWLEDGES THAT THE LANDLORD HAS
NOT MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR
IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. GUARANTOR FURTHER ACKNOWLEDGES THAT
GUARANTOR HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE
MAKING OF ALL WAIVERS CONTAINED HEREIN BY INDEPENDENT LEGAL COUNSEL, SELECTED BY
GUARANTOR, AND GUARANTOR HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.
Section 4.12 Successors and Assigns; Joint and Several. This Guaranty
shall bind Guarantor and its successors and assigns, and shall inure to the
benefit of Landlord and its successors and assigns. The obligations and
liabilities of each Guarantor under this Guaranty shall be joint and several. As
used in this Guaranty, the singular shall include the plural and vice-versa.
Section 4.13 Incorporation of Recitals; Definitions. The recitals set
forth on page 1 of this Guaranty are hereby specifically incorporated into the
operative terms of this Guaranty as if fully set forth. Terms not otherwise
specifically defined herein shall have the meanings set forth in the Lease.
Section 4.14 Rights of Lender. Guarantor acknowledges that the rights
of Landlord under this Guaranty may be assigned to Lender and, upon such
assignment, Lender shall have all of the rights and benefits of Landlord
hereunder.
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered
this Guaranty as of the date first above written.
WITNESS: THE NEW YORK TIMES COMPANY
By: /s/ Alaina Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
----------------------------------
Title: Senior Vice President
---------------------------------
WITNESS: THE NEW YORK TIMES SALES COMPANY.
By: /s/ Alaina Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
---------------------------------
Schedule 1
Rejectable Offer Schedule for Guaranty
Month Amount
---------- ------------
3/2009 $329,939,192
4/2009 $329,573,263
5/2009 $329,205,505
6/2009 $328,835,907
7/2009 $328,464,462
8/2009 $328,091,159
9/2009 $327,715,990
10/2009 $327,338,945
11/2009 $326,960,015
12/2009 $326,579,190
1/2010 $326,196,461
2/2010 $325,811,818
3/2010 $325,395,018
4/2010 $324,976,133
5/2010 $324,555,155
6/2010 $324,132,071
7/2010 $323,706,872
8/2010 $323,279,547
9/2010 $322,850,085
10/2010 $322,418,476
11/2010 $321,984,709
12/2010 $321,548,773
1/2011 $321,110,658
2/2011 $320,670,352
3/2011 $320,197,156
4/2011 $319,721,595
5/2011 $319,243,656
6/2011 $318,763,327
7/2011 $318,280,596
8/2011 $317,795,452
9/2011 $317,307,882
10/2011 $316,817,874
11/2011 $316,325,416
12/2011 $315,830,496
1/2012 $315,333,101
2/2012 $314,833,219
3/2012 $314,299,690
4/2012 $313,763,493
5/2012 $313,224,615
6/2012 $312,683,042
7/2012 $312,138,762
8/2012 $311,591,760
9/2012 $311,042,024
10/2012 $310,489,538
11/2012 $309,934,291
12/2012 $309,376,267
1/2013 $308,815,453
2/2013 $308,251,834
3/2013 $307,653,783
4/2013 $307,052,741
5/2013 $306,448,693
6/2013 $305,841,626
7/2013 $305,231,523
8/2013 $304,618,370
9/2013 $304,002,151
10/2013 $303,382,851
11/2013 $302,760,454
12/2013 $302,134,945
1/2014 $301,506,309
2/2014 $300,874,530
3/2014 $300,207,502
4/2014 $299,537,139
5/2014 $298,863,424
6/2014 $298,186,341
7/2014 $297,505,872
8/2014 $296,822,000
9/2014 $296,134,710
10/2014 $295,443,983
11/2014 $294,749,802
12/2014 $294,052,151
1/2015 $293,351,011
2/2015 $292,646,365
3/2015 $291,905,626
4/2015 $291,161,182
5/2015 $290,413,016
6/2015 $289,661,110
7/2015 $288,905,444
8/2015 $288,146,000
9/2015 $287,382,758
10/2015 $286,615,700
11/2015 $285,844,807
12/2015 $285,070,060
1/2016 $284,291,438
2/2016 $283,508,924
3/2016 $282,689,437
4/2016 $281,865,853
5/2016 $281,038,151
6/2016 $280,206,311
7/2016 $279,370,311
8/2016 $278,530,132
9/2016 $277,685,751
10/2016 $276,837,149
11/2016 $275,984,304
12/2016 $275,127,194
1/2017 $274,265,799
2/2017 $273,400,097
3/2017 $272,496,510
4/2017 $271,588,406
5/2017 $270,675,762
6/2017 $269,758,554
7/2017 $268,836,760
8/2017 $267,910,357
9/2017 $266,979,323
10/2017 $266,043,633
11/2017 $265,103,264
12/2017 $264,158,194
1/2018 $263,208,398
2/2018 $262,253,853
3/2018 $261,260,477
4/2018 $260,262,134
5/2018 $259,258,800
6/2018 $258,250,448
7/2018 $257,237,055
8/2018 $256,218,595
9/2018 $255,195,042
10/2018 $254,166,372
11/2018 $253,132,559
12/2018 $252,093,576
1/2019 $251,049,398
2/2019 $251,049,398
Thereafter $250,000,000
EXHIBIT A
Seller's/Lessee's Certificate
EXECUTION COPY
SELLER'S/LESSEE'S CERTIFICATE
This Seller's/Lessee's Certificate of NYT REAL ESTATE COMPANY LLC, a New York
limited liability company ("Seller"), is being delivered on this 6th day of
March, 2009, to 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited
partnership ("Purchaser"), in connection with the sale by Seller to Purchaser
and the leasing by Purchaser to Seller of Seller's interest in that certain
leasehold condominium situate in New York, New York, as more particularly
described on Schedule 1 attached hereto and made a part hereof (the "Property").
ARTICLE V SELLER'S REPRESENTATIONS.
Seller hereby makes the following representations and warranties to Purchaser
with the understanding that each such representation and warranty is material
and is being relied upon by Purchaser:
Section 5.01 Corporate Status.
(a) Seller is a limited liability company that is duly organized,
validly existing and in good standing under the laws of New York. Seller's
principal place of business is 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
Seller is, and has been since its formation, in compliance with the terms of its
articles of organization and its Operating Agreement.
(b) Seller has full power, authority and legal right (i) to sell its
interest in the Property to Purchaser, (ii) to execute and deliver that certain
Landlord Mortgage (as defined in the Lease) as well as that certain Purchase and
Sale Agreement ("PSA") and that certain Lease Agreement ("Lease") by and between
Seller and Purchaser of even date herewith for Seller's interest in the Property
and (iii) to execute and deliver such other instruments, documents and
agreements as may be necessary or appropriate to effect the foregoing
transactions and to perform and observe the terms and conditions of each of the
documents described above (such documents being collectively referred to as the
"Relevant Documents").
(c) The Relevant Documents are duly authorized, and upon the closing
of the transaction(s) contemplated by the Relevant Documents (the "Closing"),
shall be duly executed and delivered by authorized officers of Seller, shall
constitute legal, valid and binding obligations of Seller, enforceable against
Seller in accordance with their respective terms, and shall not violate any
provision of any agreement or judicial order to which Seller is or will be a
party or to which Seller or the Property is or will be subject or bound.
(d) Neither the execution and delivery of the Relevant Documents nor
performance of or compliance with the terms and conditions thereof will (i)
violate any law, rule or regulation, (ii) conflict with or result in a breach of
or a default under the articles of formation or Operating Agreement of Seller or
any other agreement or instrument to which Seller is a party or by which it or
any of its properties (now owned or hereafter acquired) may be subject or bound
or (iii) result in the creation or imposition of any lien, charge, security
interest or encumbrance upon any property (now owned or hereafter acquired) of
Seller, except pursuant to the Relevant Documents.
Section 5.02 Financial Statements. Financial statements of Seller's parent
company, The New York Times Company, a New York corporation, into which Seller's
financials are included, for the fiscal year ending December 28, 2008 (audited)
heretofore furnished by it to Purchaser are true and correct in all material
respects, have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods indicated and fairly present the financial condition of
Seller, subject to customary year-end adjustments with respect to the unaudited
financial statements. From December 28, 2008, to the date hereof there has been
no adverse change in any material respect in the assets, liabilities, condition
(financial or otherwise) or business of Seller from that set forth or reflected
in the above-mentioned financial statements other than changes in the ordinary
course of business, none of which is materially adverse, and other than changes
resulting from general market conditions, which have not materially and
adversely affected Seller's ability to perform its obligations under the
Relevant Documents.
Section 5.03 Contracts. The list of contracts on Schedule 3 is a true,
correct and complete list of all of the utility, service, maintenance and other
similar contracts affecting the Property to which Seller or, to Seller's
knowledge, the Condominium Boards (or either of them) is a party ("Contracts").
Seller has provided Purchaser with a true and complete copy of each Contract in
a velobound binder initialed by Seller and Purchaser or their respective counsel
simultaneously herewith. Each Contract is in full force and effect and is a
legal, valid, binding and enforceable obligation of each of the parties thereto.
None of the Contracts has been amended, modified or supplemented and no
provision of any of the Contracts has been waived.
Section 5.04 Permits. Seller has all material permits, licenses,
authorizations, consents, orders, approvals, easements and rights of way
(collectively, the "Permits and Approvals") required by every federal, state and
local government, authority, agency or regulatory body (collectively,
"Governmental Authority") or private party mandated or necessary in order to
permit Seller to carry on its business as presently conducted and as planned to
be conducted at the Property and to insure unimpaired vehicular and pedestrian
ingress to and egress from the Property, from and to a public right of way,
respectively. All of the Permits and Approvals are set forth on Schedule 4 and:
(a) have been properly issued and are fully paid for; (b) are in full force and
effect and, to Seller's knowledge, no suspension, cancellation or amendment of
any of them is threatened; and (c) will not be revoked, invalidated, violated or
otherwise adversely affected by the transactions contemplated by the Relevant
Documents. Seller has provided Purchaser with a true and complete copy of each
Permit in a velobound binder initialed by Seller and Purchaser or their
respective counsel simultaneously herewith.
Section 5.05 Certificates of Occupancy. Schedule 5 contains a true,
correct and complete list of all of the certificate(s) of occupancy held by
Seller in connection with the occupancy and operation of the Property, copies of
which have been delivered to Purchaser in a velobound binder and initialed by
Seller and Purchaser or their respective counsel simultaneously herewith. The
current temporary certificate of occupancy ("TCO") has been properly issued and
all fees payable in connection therewith have been paid in full. Except for the
applications that will be filed to obtain the permanent certificate of
occupancy, no applications are pending to amend the TCO, and there are no
pending or, to the best of Seller's knowledge, threatened proceedings to cancel
or revoke the TCO.
Section 5.06 Utilities. All water, sewer, gas, electric, telephone,
cable, drainage facilities, all other utilities required by any applicable law
or by the use and operation of the Property, together with all easements and
rights of way necessary for the use and enjoyment thereof, are installed to the
property lines of the Property, are connected pursuant to valid permits.
-3-
Section 5.07 Compliance with Other Instruments. Seller is not a party
to or bound by any agreement or instrument or subject to any charter or
corporate restriction or any order, rule, regulation, writ, injunction,
proceeding or decree of any court or Governmental Authority or any statute
(collectively, "Seller's Legal Requirements") that adversely affects its
businesses, properties, assets or financial condition or that could adversely
affect Seller's ability to perform its obligations under the Relevant Documents.
Neither the execution, delivery or performance of any of the Relevant Documents
by Seller, nor compliance with the respective terms and provisions thereof,
conflicts or will conflict with or results or will result in a breach of any of
the terms, conditions or provisions of, or require consent pursuant to, or
result in the acceleration of, or require any payment or the increase in any
payment under, any of Seller's Legal Requirements or any indenture, lease,
guaranty, mortgage, deed of trust, loan, credit or other agreement or instrument
to which Seller is a party or by which its properties may be bound or affected
(collectively, "Seller Agreements"), or constitutes or will constitute a default
(or an event which, with the giving of notice or the passage of time, or both,
would constitute a default) thereunder, or results or will result in the
creation or imposition of any lien, charge or encumbrance upon the Property
pursuant to the terms of any of Seller's Legal Requirements or any of the Seller
Agreements. Seller is not in default under any of Seller's Legal Requirements or
any of the Seller Agreements, and no event has occurred that, with the giving of
notice or passage of time, or both, would constitute a material default
thereunder.
Section 5.08 Environmental Condition of the Property. Except as
disclosed (i) in that certain Phase I Environmental Assessment pertaining to the
Property prepared by Property Solutions Incorporated and dated February 18,
2009, or (ii) in the Environmental Reports (hereinafter defined), neither
Seller, any of Seller's subsidiaries nor, to Seller's knowledge, any prior owner
of any portion of the Property, has deposited, stored, disposed of, transported,
buried, dumped, injected, spilled, leaked, discharged, poured, pumped, released
or used, or suffered any of the foregoing with respect to, any hazardous wastes,
hazardous substances, hazardous materials, toxic substances, hazardous air
pollutants or toxic pollutants, as those terms are used in the definition of
Environmental Laws (as defined in the Lease), at, upon, under, within or from
all or any portion of the Property in violation of any Environmental Law, and
the Property does not presently contain any such substance, material or
pollutant in violation of any Environmental Laws. No lien exists, nor is any
lien threatened against, all or any portion of the Property because of the
existence of any such substance, material or pollutant in violation of any
Environmental Laws. As used herein the word "contain" shall mean contain,
deposit, storage, disposal, burial, dumping, injecting, spilling, leaking or
other placement or release in or on any of the Property. There are no
Environmental Laws which prohibit the present or intended use of the Property.
Seller has delivered to Purchaser copies of the environmental reports previously
obtained by Seller regarding the Property and listed on Schedule 6 (the
"Environmental Reports").
Section 5.09 No Environmental Indemnities. Seller has not received any
environmental indemnities from prior owners of the Property.
Section 5.10 Litigation; Taxes. There are no actions, suits or
proceedings pending or, to the best of Seller's knowledge, threatened against or
affecting Seller at law or in equity before any court or administrative office
or agency that, if adversely decided, would have a material adverse effect on
the business, operations, condition (financial or otherwise) or prospects of
Seller or on the ability of Seller to perform its obligations under the Relevant
-4-
Documents. Seller is not in default in the payment of any taxes levied or
assessed against the Property or any of its other assets that are due and
payable, and has filed all tax returns that are required to be filed.
Section 5.11 Compliance. The Property, including the use and operation
thereof, is and at the time of Closing will be, in compliance with all
applicable Legal Requirements (as defined in the Lease), including without
limitation the Americans With Disabilities Act, Public Law 101-336, as codified,
and with all requirements of every Governmental Authority, including without
limitation zoning, subdivision, building and environmental requirements. The
Property is separately assessed for purposes of ad valorem real property taxes.
All platting and replatting requirements in respect of the Land have been
satisfied to accommodate the operation of the Improvements and no subdivision or
parcel map not already obtained is required to transfer Seller's interest in the
Property to Purchaser. Except for the PILOT regime in effect for the Property,
there is no special or preferential assessment in effect with respect to the
Property. The Property is presently zoned General Central Commercial District
and Light Manufacturing District, all within the Special Midtown District. No
variances, reliance on adjacent property or special exception is required for
the operation and use of the Improvements.
Section 5.12 Declarations. Except as disclosed in that certain title
report issued by Chicago Title Insurance Company in favor of Purchaser
pertaining to the Property and dated on or about the date hereof ("Title
Report"), there are no declarations of covenants, conditions and restrictions or
similar agreements ("Declarations") that run with the Land to which Seller is a
party or by which Seller or the Property or any portion thereof may be bound;
and Seller has delivered or caused to be delivered to Purchaser true, complete
and legible copies of all Declarations and related agreements.
Section 5.13 Representation Regarding Declarations. Except as may be
specifically set forth in the Title Report, there has been no written claim of
default under any of the Declarations by any party thereto that has not been
cured; and, to Seller's knowledge, there exists no event that alone, or with
notice or the lapse of time, or both, would constitute a default under any of
the Declarations by any party thereto; except, however, that Seller has advised
Purchaser that Seller has received notice from ESDC stating that it is not in
compliance with its obligations to provide ESDC, for ESDC's review and approval
in accordance with the terms of the Severance Lease, with details relating to
the design and programming of the flat screen televisions installed by Seller in
lieu of retail signage. All sums due and payable by Seller under the
Declarations as of the Closing have been paid in full prior to the Closing.
Section 5.14 Designation; Flood Zone. The Property is not located in
any conservation or historic district, or in an area that has been identified by
the Secretary of Housing and Urban Development as an area having special flood
hazards.
Section 5.15 Insurance. Seller has not received written notice or
demand from any of the insurers of all or any portion of the Property (or
insurers of any activities conducted thereon) to correct or change any physical
condition on the Property or any practice of Seller. Seller or the Condominium
Boards (or either of them) is in compliance with the requirements of all
insurance policies affecting all or any portion of the Property, which policies
are set forth on Schedule 8 (the "Existing Insurance Policies").
-5-
Section 5.16 Expansion of Property. Seller has not made written
application to any Governmental Authority for any expansion or further
development of the Property, and Seller has received no written notice that any
expansion or further development of the Property is subject to any restrictions
or conditions except as set forth in the Declarations and local zoning law
requirements.
Section 5.17 Access. Seller has received no notice from any
Governmental Authority, private party or other entity responsible therefor of
any fact or condition that would result in the termination of (a) unimpaired
vehicular and pedestrian access from the Property to presently existing public
roads or (b) access from the Property to existing sewer or other utility
facilities servicing, adjoining or situated on the Property.
Section 5.18 Notices Regarding Restrictions. Seller has received no
notice from any Governmental Authority or entity responsible therefor of (a) any
pending or contemplated change in any federal, state or local governmental or
private restriction applicable to the Property or (b) any pending or threatened
judicial or administrative action or (c) any action pending or threatened by
adjacent land owners or other persons, which would result in a material change
in the condition of the Property or any part thereof or in any way prevent or
materially limit the construction and/or operation of the Improvements or any
part thereof.
Section 5.19 Improvements. Except as disclosed in that certain
Property Condition Assessment pertaining to the Property prepared by Property
Solutions Inc. and dated February 4, 2009, the Improvements and Equipment (as
defined in the Lease) are in good condition and repair and there are no known
material physical or mechanical defects in the Improvements, including without
limitation the roof, the structural components, the plumbing, heating,
ventilation, air conditioning, elevators, fire detection and electrical systems.
All such items are in good operating condition and repair. There is no actual
or, to Seller's knowledge, threatened settlement, earth movement, termite
infestation or damage affecting the Property.
Section 5.20 Condemnation, etc. Seller has not received notice of any
condemnation proceedings, other than New York State Urban Development Corp.,
Plaintiff, vs. 42nd St. Development Project, Inc. et al., Defendants, Index No.
402727/02, which occurred in connection with the initial development and
construction of the Building, either instituted or planned to be instituted,
which would affect adversely either the use and operation of the Property for
its present use or the value of the Property, nor has Seller received notice of
any special assessment proceedings affecting the Property.
Section 5.21 Compliance with Anti-Terrorism, Embargo, Sanctions and
Anti-Money Laundering Laws. Seller (i) is not currently identified on the OFAC
List and (ii) is not a Person with whom a citizen of the United States is
prohibited to engage in transactions by any trade embargo, economic sanction, or
other prohibition of United States law, regulation, or Executive Order of the
President of the United States. Seller agrees to confirm this representation and
warranty in writing on an annual basis if requested by Purchaser to do so.
Section 5.22 Commissions and Fees. Seller has not incurred any
obligation or liability for any commission or fee that is or will be payable to
any person by reason of the transactions contemplated hereby, including without
limitation the consummation of the sale and the lease of Seller's interest in
the Property to Seller, except for fees payable to Xxxxxxx &
-6-
Wakefield, Inc. pursuant to a separate agreement between Seller and Xxxxxxx &
Xxxxxxxxx, Inc. Furthermore, there are no commissions or fees that is or will be
payable to any person in connection with the leasing of any portion of the
Property, including in connection with any expansions, extensions of renewals of
any existing leases. Seller shall indemnify and hold Purchaser harmless from and
against any and all loss, damage, liability or expense, including costs and
reasonable attorneys' fees, which Purchaser may incur or sustain by reason of or
in connection with any misrepresentation by Seller with respect to the
foregoing.
Section 5.23 Domestic Status. Seller is not a foreign corporation,
foreign partnership, foreign trust and/or foreign estate (as those terms are
defined in the Internal Revenue Code of 1986, as amended and in the accompanying
regulations), and Seller's U.S. employer identification number is 00-0000000.
Section 5.24 Third-Party Rights. Except as disclosed in the Title
Report, no entity or person holds any right of first offer, right of first
refusal or any other right or option to purchase or occupy all or any portion of
the Property.
Section 5.25 Alterations. There currently are no on-going or planned
alterations for any portion of the Property, except for a climbing deterrent
system for a portion of the exterior of the Building, which work has not yet
been commenced.
Section 5.26 Subway Entrance. The diagram attached to Schedule 10 sets
forth, in its entirety, that portion of the subway entrance that is connected to
the Building for whose maintenance the Condominium is responsible. Furthermore,
the work under that certain Site 8 Declaration of Design, Use and Operation by
and between New York State Urban Development Corporation d/b/a Empire State
Development Corporation and 42nd St. Development Project, Inc. and dated
December 21, 2001, is substantially completed.
Section 5.27 Recognition. Seller hereby agrees that it shall recognize
Purchaser as a Recognized Mortgagee under the terms of Article 31 of the
Severance Lease, with all of the rights and privileges thereof.
Section 5.28 Bankruptcy. Seller has not commenced a voluntary case
under Bankruptcy Law (hereinafter defined) nor has there been commenced against
Seller an involuntary case under Bankruptcy Law, nor has Seller consented to the
appointment of a Custodian (hereinafter defined) of it or for all or any
substantial part of its property, nor has a court of competent jurisdiction
entered an order or decree under any applicable Bankruptcy Law that is for
relief against Seller or appoints a Custodian for Seller or for all or any
substantial part of Seller's property. The term "Bankruptcy Law" means the
United States Bankruptcy Code, 11 U.S.C.A. Sections 101 et seq. or any federal
or state insolvency laws or laws for composition of indebtedness or for the
reorganization of debtors. The term "Custodian" means any receiver, trustee,
assignee, liquidator or similar official under and Bankruptcy Law.
Section 5.29 Third-Party Consents. Except for the approvals and
consents listed on Schedule 11 (the "Third Party Consents"), no authorizations,
consents or approvals of or filings with any Governmental Authority or any other
Person is required with respect to Seller for the execution and delivery of this
Certificate and the performance of its obligations under the
-7-
Relevant Documents. Seller has obtained, or will have obtained prior to the
Closing, all Third-Party Consents.
Section 5.30 Severance Lease and Condominium Declaration. Seller has
delivered to Purchaser true, correct and complete copies of each of the
Severance Lease and the Condominium Declaration, including, in each case, all
amendments and/or modifications thereto, in a velobound binder initialed by
Seller and Purchaser or their respective counsel simultaneously herewith. Each
of the Severance Lease and the Condominium Declaration, as same have been
amended or modified to date, is in full force and effect and Seller has not
received notice from any party that Seller is in default under any other party
to the Severance Lease or the Condominium Declaration, as the case may be.
Section 5.31 Warranties. The list of warranties on Schedule 12 is a
true, correct and complete list of all material warranties ("Warranties")
affecting the Property to which Seller or, to Seller's knowledge, the
Condominium Boards (or either of them) is a party. Seller has provided Purchaser
with a true and complete copy of each Warranty in a velobound binder initialed
by Seller and Purchaser or their respective counsel simultaneously herewith.
Each Warranty is in full force and effect and is a legal, valid, binding and
enforceable obligation of each of the parties thereto. None of the Warranties
has been amended, modified or supplemented and no provision of any of the
Warranties has been waived.
Section 5.32 Property Management Agreements. The list of property
management agreements on Schedule 13 is a true, correct and complete list of all
property management agreements ("Property Management Agreements") affecting the
Property to which Seller or, to Seller's knowledge, the Condominium Boards (or
either of them) is a party. Seller has provided Purchaser with a true and
complete copy of each Property Management Agreement, as amended, if applicable,
in a velobound binder initialed by Seller and Purchaser or their respective
counsel simultaneously herewith. Each Property Management Agreement is in full
force and effect and is a legal, valid, binding and enforceable obligation of
each of the parties thereto. No provision of any of the Property Management
Agreements has been waived.
Section 5.33 Intentionally Omitted.
Section 5.34 Excess Site Acquisition Costs. Seller's proportionate
share of the credit balance of the Excess Site Acquisition Costs (as defined in
that certain Site 8 Land Acquisition and Development Agreement by and among New
York State Urban Development Corporation d/b/a Empire State Development
Corporation, 42nd St. Development Project, Inc. and The New York Times Building
LLC dated December 21, 2001) with respect to the Property, calculated on an
accrual basis, is, as of March 1, 2009, $12,390,676.00, all of which Seller
hereby covenants is assignable to Purchaser.
ARTICLE VI TERMS.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the PSA.
ARTICLE VII SELLER'S REPRESENTATIONS TRUE AS OF CLOSING; PERFORMANCE BY SELLER.
-8-
The representations and warranties made by Seller in Section A hereof shall be
deemed to have been made again at and as of the Closing and, as of the Closing,
shall be true and correct in all respects.
ARTICLE VIII INDEMNITY.
Seller shall pay, protect, defend, indemnify and hold harmless Purchaser, its
successors and assigns, from and against any and all liabilities, losses,
damages, costs, expenses (including, without limitation, reasonable attorneys'
fees and expenses), causes of action, suits, claims, demands or judgments of any
nature whatsoever howsoever caused should any representation or warranty set
forth herein prove to have been untrue or inaccurate or arising from any breach
by Seller of any representation or warranty set forth herein.
ARTICLE IX SUCCESSORS AND ASSIGNS; SURVIVAL OF REPRESENTATIONS.
This Seller's/Lessee's Certificate shall be for the benefit of Purchaser, its
successors and assigns, and shall be binding upon Seller and each of its
successors and assigns. The representations, warranties, covenants and
indemnifications made by Seller in this Seller's/Lessee's Certificate shall
survive until repayment in full of the Monetary Obligations (as defined in the
Lease) under the Lease.
F. Seller's Knowledge.
Purchaser expressly understands and agrees that the phrase "to Seller's
knowledge" means a matter that Xxxxx Xxxxx and/or Xxxxxxx X. Xxxxxxxx, each as
officers of Seller, actually is aware of or received written notice of, provided
that Seller represents that Xxxxx Xxxxx is a Manager and Xxxxxxx X. Xxxxxxxx is
a Manager, each of which are the officers of Seller most familiar with the
Property and the condition and operation thereof.
G. EFFECT OF KNOWLEDGE LIMITATION.
The fact that the representations of Seller set forth in this Certificate may be
limited to the best of Seller's knowledge shall not be deemed to modify or alter
any provision of any Relevant Document requiring Seller to indemnify Purchaser.
H. FURTHER ASSURANCES.
Seller, within ten (10) days after written request, shall re-make, re-execute,
re-deliver, and/or file or cause the same to be done, such corrected or
replacement documents executed in connection with the transaction contemplated
hereby ("Section 36(p) Documents") as Purchaser may deem reasonably necessary in
order to give effect to the rights expressly conferred on Purchaser pursuant to
the Lease and other Relevant Documents, such that the documents for this
transaction shall be an accurate reflection of the parties' agreement thereunder
provided.
-9-
However, under no circumstances shall Seller's obligations and/or
liabilities be increased by reason of the Section 36(p) Documents nor shall
Seller's rights and/or benefits be decreased by reason of the Section 36(p)
Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-10-
EXECUTION COPY
IN WITNESS WHEREOF, the Seller/Lessee duly executed this Seller's/Lessee's
Certificate on the date and year first above written.
NYT REAL ESTATE COMPANY LLC,
a New York limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
SCHEDULE 1
The Condominium Units (in the BUILDING located at and known as THE NEW YORK
TIMES BUILDING CONDOMINIUM and by Street Number 000-000 0XX XXXXXX, XXX XXXX,
XXX XXXX), designated and described as Units (SEE SCHEDULE ANNEXED) (hereinafter
called the "UNITS") in the Declaration Establishing a Plan of Leasehold
Condominium Ownership of Premises made by The New York Times Building LLC, as
Declarant, under the Condominium Act of The State of New York (Article 9-B of
the Real Property Law of the State of New York), dated as of August 4, 2006 and
recorded August 15, 2006 in the Office of the Register The City of New York (the
"REGISTER"), as CRFN 2006000460293, as amended by First Amendment to Declaration
dated January 29, 2007 and recorded as CRFN 2007000075106, and Second Amendment
to Declaration dated October 11, 2007 and recorded as CRFN 2008000008734, and
Third Amendment to Declaration dated March 6, 2009 and recorded as CRFN
2009000072453, and Fourth Amendment to Declaration dated March 6, 2009 to be
recorded with the Register (which Declaration, and any further amendments
thereto, are hereinafter collectively called the "DECLARATION"), establishing a
plan for leasehold condominium ownership of said Building and the land upon
which the same is erected (hereinafter sometimes collectively called the
"PROPERTY") and also designated and described as Tax Lots No. (SEE SCHEDULE
ANNEXED), Block 1012 Section 4, Borough of MANHATTAN on the Tax Map of the Real
Property Assessment Department of the City of New York and on the floor plans of
said Building certified by Xxxxxx Xxxxxx, approved by the Real Property
Assessment Bureau on August 13, 2006 and filed as Condominium Plan No. 1595 on
August 15, 2006 in the aforesaid Register's Office.
The land upon which the Building containing the Units is erected as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, bounded
and described as follows:
BEGINNING at the corner formed by the intersection of the northerly line of Xxxx
00xx Xxxxxx with the easterly line of 8th Avenue,
RUNNING THENCE northerly along said easterly line of 8th Avenue, 197 feet 6
inches to the corner formed by the intersection of the easterly side of 0xx
Xxxxxx with the southerly line of West 00xx Xxxxxx;
THENCE easterly along said southerly line of West 41st Street, 400 feet;
THENCE southerly and parallel to said easterly line of 8th Avenue, 197 feet 6
inches to the northerly line of Xxxx 00xx Xxxxxx;
THENCE westerly along said northerly line of West 40th Street, 400 feet to the
point or place of BEGINNING,
TOGETHER with an undivided percentage interest (SEE SCHEDULE ANNEXED) in the
Common Elements and the NYTC Limited Common Elements (as such terms are defined
in the
Declaration) of the New York Times Building Condominium, recorded as CRFN
2006000460293 as amended.
-2-
SCHEDULE OF UNITS
PERCENTAGE INTEREST
UNIT DESIGNATION TAX LOT IN COMMON ELEMENTS
---------------- ------- -------------------
0-A 1001 0.6726%
1-A 1003 2.0809%
2-A 1009 4.7683%
3-A 1010 4.7719%
4-A 1011 4.2717%
5-A 1012 1.6453%
6-A 1013 1.7431%
7-A 1014 1.7431%
8-A 1015 1.7431%
9-A 1016 1.7431%
10-A 1017 1.7431%
11-A 1018 1.7431%
12-A 1019 1.7431%
13-A 1020 1.7431%
14-A 1021 1.7546%
15-A 1022 1.3954%
16-A 1023 1.7591%
17-A 1024 1.7312%
18-A 1025 1.7819%
19-A 1026 1.7819%
20-A 1027 1.7819%
28-A 1035 0.4470%
-3-
SCHEDULE 2
INTENTIONALLY OMITTED
SCHEDULE 3
CONTRACTS
Management Agreements
1) NYTC Facility Maintenance and Management Agreement, dated January 4, 2007,
made by and between NYT Real Estate Company LLC and First New York Partners
Management, LLC, as amended by that certain Amendment to an Agreement dated
May 1, 2008 and that certain Side Letter dated May 15, 2008
Service Contracts
1) Intentionally omitted.
2) Intentionally omitted.
3) Scientific Fire Prevention Company, for environmental grease trap services,
dated March 6, 2008
4) Scientific Fire Prevention Company, for precipitator service, dated March
6, 2008
5) Caterpillar, Inc., for electric power services, dated October 1, 2008 and
effective November 1, 2008
6) Caterpillar, Inc., electric power services, dated October 1, 2008 and
effective November 1, 2008 (second contract)
7) Liebert Global Services, for precision cooling services (data network),
dated May 9, 2007
8) Scientific Fire Prevention Company, for grease filter services (halton
filters), dated March 6, 2008
9) Scientific Fire Prevention Company, for grease filter services (charcol
filters), dated March 6, 2008
10) Scientific Fire Prevention Company, for grease filter services
(pre-filters), dated March 6, 2008
11) Scientific Fire Prevention Company, for kitchen exhaust system maintenance,
dated March 6, 2008
12) ABCO Peerless Fire Suppression Corp., for fire suppression maintenance,
dated March 31, 2008
13) Colony Pest Management, for pest control in the cafeteria, dated May 8,
2007
14) Colony Pest Management, for pest control for Floors 2 thru 27, dated
January 25, 2008
15) H.O. Penn Machinery Co., for generator preventative maintenance, dated July
3, 2008
16) H.O. Penn Machinery Co., for generator regular maintenance, dated August 8,
2008
17) Siemens, for HVAC equipment technical support (HVAC chiller), dated
November 28, 2007
18) Trane, for chiller equipment servicing (HVAC chiller), dated November 11,
2008
19) Verizon, for telephone services, dated April 3, 2007
20) Siemens, for HVAC equipment technical support (life safety chiller), dated
November 28, 2007
21) Siemens, for life safety system inspection, dated April 1, 2008
22) Trane, for chiller equipment servicing (life safety chiller), dated March
30, 2007
23) Platinum Maintenance Services Corp., for metal maintenance, dated September
4, 2008
24) Xxxxxxx Building Services, for cleaning services, dated January 1, 2008
25) Colony Pest Management Inc., for pest control, dated February 23, 2007
26) IESI NY Corp., for trade waste removal, dated November 1, 2008
27) Siemens, for life safety system inspection, dated April 1, 2008
28) X.X. Xxxxxxxxx & Sons, Inc., for rental uniforms, dated January 9, 2007
-2-
SCHEDULE 4
PERMITS
1) Intentionally omitted.
2) Permit, issued by the Department of Environmental Protection of the City of
New York, for general EPA compliance, dated April 17, 2008
3) Permit, issued by Isseks Bros. Inc., for water tank compliance, dated
October 1, 2008
4) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for the wheelchair lift, inspected as of
August 7, 2008
5) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for the dumb waiter, inspected as of
September 13, 2007
6) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1W6000, inspected as of
August 13, 2007
7) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 11/21859, inspected as of
July 18, 2007
8) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 11/21860, inspected as of
July 9, 2007
9) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1F10181, inspected as of
August 7, 2008
10) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43771, inspected as of
August 8, 2008
11) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P44042, inspected as of
November 13, 2008
12) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43773, inspected as of
August 5, 2008
13) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43772, inspected as of
February 9, 2009
14) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43795, inspected as of
August 7, 2008
15) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43794, inspected as of
August 7, 2008
16) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43793, inspected as of
August 7, 2008
17) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43792, inspected as of
August 7, 2008
18) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43791, inspected as of
August 7, 2008
19) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43790, inspected as of
August 7, 2008
20) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43778, inspected as of
August 8, 2008
21) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43777, inspected as of
August 8, 2008
22) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43776, inspected as of
August 8, 2008
23) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43775, inspected as of
August 8, 2008
24) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43779, inspected as of
August 8, 2008
25) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43774, inspected as of
August 8, 2008
(26) Registration issued by City of New York Department of Environmental
Protection for Internal Combustion Fuel Burning Equipment, No. PB 82-07 Z,
issued 4/2/07
(27) Letter of Approval issued by City of New York Fire Department for
Inspection dated 10/23/08, #595183
(28) Letter of Approval issued by City of New York Fire Department for
Self-Certification dated 10/23/08, #593003
-2-
SCHEDULE 5
CERTIFICATES OF OCCUPANCY
1) Temporary Certificate of Occupancy, effective January 9, 2009, issued by
the New York City Department of Buildings in CO Number 103145990T017,
expiring April 9, 2009
SCHEDULE 6
ENVIRONMENTAL REPORTS
1) Letter, dated October 19, 2005, from Roux Associates Inc., regarding
completed remediation
SCHEDULE 7
INTENTIONALLY OMITTED
SCHEDULE 8
EXISTING INSURANCE POLICIES
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
PROPERTY- CORE & SHELL (FOREST CITY ENTERPRISES PROGRAM- $750M TOTAL PROPERTY LIMITS; INCLUDING $25M IN TERRORISM LIMITS)
LEXINGTON INSURANCE CO. 8157556 Perils Insured: "All Risks" of 100% of Prim $50,000 except for the 11/1/08-
direct physical loss or damage $25M following: 11/1/09
including Flood, Earthquake and - PD and/or BI loss
Boiler and Machinery Accidents in California and
and Terrorism Coverage caused by the peril
of Earthquake:
greater of $100,000
or 5% of TIV
- PD and/or BI loss
caused by the peril
of Named Windstorm
in FL, HI and Tier
I Counties: greater
of $250,000 or 5%
of TIV
- Flood: $500,000 or
5% of TIV
Service Interruption:
24 hour waiting period
ESSEX INSURANCE CO. ESP6231 10% of $25M xs 11/1/08-
$25M 11/1/09
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
CONTINENTAL CASUALTY RMP205725244 10% of $25M xs 11/1/08-
CO. $25M 11/1/09
LEXINGTON INSURANCE CO. 8757557 10% of $25M xs 11/1/08-
$25M 11/1/09
LLOYDS OF LONDON WBO801221 7% of $25M xs 11/1/08-
$25M 00/0/00
XXXXXX XX XXXXXX XXX000000 16.67% of $25M 11/1/08-
xs $25M 11/1/09
INTERNATIONAL WBO801207 2% of $25M xs 11/1/08-
INSURANCE CO. OF $25M 00/0/00
XXXXXXX
XXXXXXX XXXXXXXXXXX XX XXX000000 7% of $25M xs 11/1/08-
AG $25M 11/1/09
LLOYDS OF LONDON 1919 O8 SSP1328604002 6.67% of $25M 11/1/08-
(STARR) xs $25M 11/1/09
FEDERAL INSURANCE CO. 35891263 13.33% of $25M 11/1/08-
xs $25M 11/1/09
ARCH INSURANCE CO. PRP001107403 4% of $25M xs 11/1/08-
$25M 11/1/09
COMMONWEALTH INSURANCE US7665 3.33% of $25M 11/1/08-
CO. xs $25M 11/1/09
ALLIED WORLD ASSURANCE P005371/004 10% of $25M xs 11/1/08-
CO. $25M 11/1/09
MAX BERMUDA LTD. 232042687PRMAN2008 10% of $50M xs 11/1/08-
$50M 11/1/09
ZURICH AMERICAN INS. XPP591700103 10% of $50M xs 11/1/08-
CO. $50M 11/1/09
-2-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
LEXINGTON INS. CO. 8757558 10% of $50M xs 11/1/08-
$50M 11/1/09
FEDERAL INSURANCE CO. 35891263 13.33% of $50M 11/1/08-
xs $50M 00/0/00
XXXXXX XX XXXXXX 0000 08SSP1328604002 6.67% of $50M 11/1/08-
(STARR) xs $50M 11/1/09
ARCH INSURANCE CO. PRP001107403 4% of $50M xs 11/1/08-
$50M 11/1/09
COMMONWEALTH INSURANCE US7665 3.33% of $50M 11/1/08-
CO. xs $50M 11/1/09
ALLIED WORLD ASSURANCE P005371/04 10% of $50M xs 11/1/08-
CO. $50M 11/1/09
GLACIER REINSURANCE OF WB0801209 7% of $50M xs 11/1/08-
AG $50M 11/1/09
INTERNATIONAL WB0801207 2% of $50M xs 11/1/08-
INSURANCE CO. OF $50M 00/0/00
XXXXXXX
XXXXXX XX XXXXXX WB0801132 16.67% of $50M 11/1/08-
xs $50M 11/1/09
LLOYDS OF LONDON WB0801223 7% of $50M xs 11/1/08-
$50M 11/1/09
MIC PROPERTY & XE136174 & XEP30155 10% of $100M 11/1/08-
CASUALTY INS. CO. xs $100M 11/1/09
(AOS) & INTEGON
SPECIALTY CO. (GA ONLY)
ZURICH AMERICAN INS. XPP5917001-03 5% of $100M xs 11/1/08-
CO. $100M 11/1/09
-3-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
ACE AMERICAN INS. CO. GPAD37743276 15% of $100M 11/1/08-
xs $100M 11/1/09
XL INS. CO. OF US00010211PR08A 20% of $100M 11/1/08-
AMERICA, INC. xs $100M 11/1/09
LIBERTY MUTUAL FIRE MQ2L9L443687018 10% of $100M 11/1/08-
INS. CO. xs $100M 00/0/00
XXXXX XXX. XX. XXX0000 2.5% of $100M 11/1/08-
xs $100M 11/1/09
LLOYD'S OF LONDON GEP2214 5% of $100M xs 11/1/08-
(GLOBAL EXCESS $100M 11/1/09
PARTNERS)
SR INTERNATIONAL WB0801220 20% of $100M 11/1/08-
BUSINESS INS. CO. xs $100M 11/1/09
ENDURANCE INS. CO. CPN10001117800 12.5% of $100M 11/1/08-
xs $100M 11/1/09
ARC INS. CO. PRP001107403 10% of $300M 11/1/08-
xs $200M 11/1/09
HOMELAND INS. CO. (ONE YSP1618 8.33% of $300M 11/1/08-
BEACON) xs $200M 11/1/09
LANDMARK AMERICAN INS. LHD359900 33.33% of 11/1/08-
CO. (RSUI) $300M xs $200M 11/1/09
LLOYD'S OF LONDON WB0801224 10% of $300M 11/1/08-
xs $200M 11/1/09
COMMONWEALTH-VANCOUVER US7666 8.33% of $300M 11/1/08-
xs $200M 11/1/09
LIBERTY MUTUAL FIRE MQ2L9L443687028 5% of $300M xs 11/1/08-
INS. CO. $200M 11/1/09
-4-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
XL INS. CO. OF US00010211PR08A 25% of $300M 11/1/08-
AMERICA, INC. xs $200M 11/1/09
ACE AMERICAN INS. CO. GPAD37743276 14% of $250M 11/1/08-
xs $500M 11/1/09
LEXINGTON INS. CO. 1231800 31% of $250M 11/1/08-
xs $500M 11/1/09
XL INSURANCE CO. OF US00010211PR08A 25% of $250M 11/1/08-
AMERICA, INC. xs $500M 11/1/09
HOMELAND IN. CO. (ONE YSP1615 30% of $250M 11/1/08-
BEACON) xs $500M 11/1/09
HOMELAND IN. CO. (ONE YSP1615 30% of $250M 11/1/08-
BEACON) xs $500M 11/1/09
TERRORISM LIABILITY- CORE & SHELL (FOREST CITY ENTERPRISES PROGRAM- $525M TOTAL TERRORISM LIMITS XS OF $25M INCLUDED IN PROPERTY)
LLOYD'S OF LONDON E08RQ2763800 $225M xs $25M 11/1/08-
00/0/00
XXXXX'X XX XXXXXX X00XX00000X00 $300M xs $250M 11/1/08-
11/1/09
PROPERTY- PERSONAL CONTENTS & BUSINESS INTERRUPTION (NYT PROGRAM)
ACE American Ins. Co. GPAD37747208 Perils Insured: "All Risks" of 1.50% of Prim 9/1/08-
direct physical loss or damage $100M 9/1/09
including Flood, Earthquake and
Boiler and Machinery Accidents
including the following:
Property Damage $250,000 except for
All Real and Personal Property the following:
of every kind and description, - Subsidence at
including, but not limited to College Point:
improvements and betterments; $2,500,000
property of others in the care, - PD and/or BI
custody or control of the
Insured
-5-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
or for which the Insured loss in California
is responsible, legally and caused by the
liable or has agreed to insure; peril of Earthquake:
except as more fully defined in greater of $500,000
the proposed policy wording: or 5% of TIV
- PD and/or BI
Time Element loss caused by the
Business Interruption Gross peril of Named
Earnings; Business Interruption Windstorm: greater
Loss of Profits (where of $500,000 or 5% of
applicable); Extra Expense; TIV
Rental Income; Leasehold
Interest; - Flood: $500,000
- Service
All Property Damage and Time
Element coverage as more fully Interruption: 24
defined in policy wording hour waiting period
Limit of Liability
$700,000,000
PER OCCURRENCE AND ANNUAL
AGGREGATES
1. Earthquake: $100,000,000
except;
- California EQ: $25,000,000
2. Flood: $100,000,000 except;
- $20,000,000 for Flood Zone A
for
-6-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
Newly Acquired Locations
SUBLIMITS: The following
sub-limits, for each and every
occurrence
3. Contingent Time Element:
$125,000,000, as respects to
direct suppliers and recipients
4. Leasehold Interest:
$25,000,000
5. Property in the Course of
Construction (including
$10,000,000 in Business
Interruption): $45,000,000
6. Newly Acquired Properties
(90 days reporting): $50,000,000
7. Miscellaneous Unnamed
Locations: $30,000,000
8. Property Damage / Time
Element Service Interruption:
$50,000,000 (10 Miles).
9. Extra Expense: $100,000,000
10. Inland Transit: $10,000,000
11. Valuable Papers and
Records: $95,800,000
-7-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
12. EDP Media Replacement:
$75,000,000
13. Accounts Receivable:
$100,000,000
14. Rental Value: $25,000,000
15. Royalties: $25,000,000
16. Research and Development:
$25,000,000
17. Fine Arts: $66,635,000
18. Debris Removal: The greater
of $75,000,000 or 25% of PD/TE
loss
19. Cleanup and Removal of
Pollutants from land and water:
$100,000 (Lex only)
20. Expediting Expense:
$25,000,000
21. Errors and Omissions:
$25,000,000
22. Ingress / Egress & Civil
Authority: $50,000,000 - 30
days
23. Extended period of
Indemnity: 180
-8-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
days
24. Demolition & Increased Cost
of Construction: $100,000,000
25. Impounded Water:
$50,000,000 - 30 days
26. Jewelry: $10,000,000
27. Furs: $10,000,000
28. Boiler and Machinery:
$100,000,000 except;
- Hazardous Substances:
$25,000,000
- Consequential Loss:
$25,000,000
- Ammonia Contamination:
$25,000,000
- Water Damage: $25,000,000
- $50,000 (Lexington Only)
29. Professional Fees:
$1,000,000, for each and every
occurrence
30. Foreign Endorsement:
$10,000,000 for scheduled
locations and $1,000,000 for
unscheduled locations
Lexington Ins. Co. 4271642 Perils Insured - see above 50% of Primary Deductible - see above 9/1/08-
$25M 9/1/09
Arch Ins Co. PRP 0017748 02 Perils Insured - see above 13.33% of $75M Deductible - see 9/1/08-
-9-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
xs $25M & 10% above 9/1/09
of $300M xs
$100M
Global Excess Partners GEP2190 Perils Insured - see above 6.67% of $75M Deductible - see above 9/1/08-
xs $25M 9/1/09
Allianz Global Risks US CLP 3009788 Perils Insured - see above 33.34% of Deductible - see above 9/1/08-
$600M xs 100M 9/1/09
SR Int'l MH33575 Perils Insured - see above 15% of $675M Deductible - see above 9/1/08-
xs $25M 9/1/09
Steadfast Insurance Co. XPP9305496-06 Perils Insured - see above 23.33% of Deductible - see above 9/1/08-
$600M xs $100M 9/1/09
Lloyds (QBE) DP 662708 Perils Insured - see above 10% of $300M Deductible - see above 9/1/08-
xs $400M 9/109
Xxx Xxxxxxxxx 0993527 Perils Insured - see above 3.33% of $600M Deductible - see above 9/1/08-
xs $100M 9/1/09
AXIS Reinsurance RNB 728471-08 Perils Insured - see above 15% of $675M Deductible - see above 9/1/08-
Company xs $25M 9/1/09
TERRORISM LIABILITY
Lexington Insurance Co. 9407078 TRIA Co-Participation 9/1/08-
15% Reinsurance 9/1/10
(Co-participation) of TRIA
Captive policy limit of
$1,200,000,000:
$180,000,000 per occurrence
Captive's TRIA Single Event
Trigger
100% Reinsurance of TRIA
Trigger: $100,000,000 per
occurrence
Captive's TRIA Deductible
100% Reinsurance of TRIA
Deductible:
-10-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
$8,500,000 per
occurrence (Estimate)
International Terrorism
$100,000,000 per occurrence an
100% Reinsurance on Locations
outside the US: annual
aggregate
PRIMARY CASUALTY
Travelers Property & TC2JGLSA219T312708 General Liability $2,000,000 per $250,000 3/1/09-
Casualty occurrence/ 3/1/10
$25,0000,000
per aggregate
Travelers Property & XX0XXXX000X000000 AUTOMOBILE LIABILITY $3,000,000 3/1/09-
Casualty Combined $500,000 3/1/10
TC2JCAP201T637A08 Single Limit
Travelers Property & TC2HUB121D938808 WORKERS' COMPENSATION AND Workers' $500,000 3/1/09-
Casualty EMPLOYER'S LIABILITY Compensation: 3/1/10
TRJUB121D937608
Statutory
TWXJUB121D939A08
Employer's
Liability
$2,000,000
each accident
$2,000,000
each
employee
$2,000,000
each
-11-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
policy
limit
UMBRELLA/EXCESS LIABILITY* (IN THE PROCESS OF RENEWING- EXPECTED COMPLETION 3/6/09)
AIG Illinois National 538 0744 Umbrella Liability 30M xs $30,000,000 $25,000 3/1/08-
Insurance Co primary casualty 3/1/09
AIG Cat Excess 9495175 Excess Liability $95,000,000 N/A 3/1/08-
$95M xs $30M 3/1/09
POLLUTION LEGAL LIABILITY
Greenwich Insurance PEC0008018 Pollution and Remediation Legal $50,000,000 1,000,000 12/15/08-
Company Liability 12/15/10
-12-
SCHEDULE 9
INTENTIONALLY OMITTED
SCHEDULE 10
SUBWAY ENTRANCE AREA DIAGRAM
(GRAPHIC)
-2-
(GRAPHIC)
-3-
SCHEDULE 11
THIRD-PARTY CONSENTS
1) New York City Industrial Development Authority
SCHEDULE 12
WARRANTIES
1) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 3, 2004
2) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 25, 2004
3) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 10, 2004
4) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 17, 2004
5) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 3, 2004
6) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 3, 2004
7) Intentionally omitted.
8) Intentionally omitted.
9) Intentionally omitted.
10) Intentionally omitted.
11) Hilti's, copy of full service program that all tools are covered by
complete service and repair warranty for up to two years
12) The Metraflex Company, effective on date of shipment
13) X.X. Xxxxx Water Heaters, residential electric warranty, effective on the
date of sale
14) X.X. Xxxxx Water Heaters, residential gas warranty, effective on date of
purchase
15) American Standard, effective at time of initial purchase
16) Brasscraft Manufacturing Company, dated October 5, 2005
17) Kohler, effective on date of installation of plumbing products, steam
generator, water filtration, faucets, valves and cast iron
18) Xxxxx Plumbing Products, effective on the date of purchase or installation
whichever occurs first, dated September 1, 2007
19) Fiat Products, acrylic bathware, effective on the date of sale
20) Chicago Faucets, effective on the date of shipment
21) Victaulic Company of America
22) Xxxxx Regulator Company, effective on the date of original shipment
23) Charlotte Pipe and Foundry Co., effective on date of delivery
24) Xxxxxxx The Electric Heater Company, effective on start up date
25) SyncroFlo, Inc., effective on date of shipment
26) Goulds Pumps, effective on either the date of installation or date of
manufacture
27) ITT FLYGT, effective on date of shipment or startup (if within on year of
shipment)
28) D.V. Fyre-Tec, Inc., effective June 28, 2006
29) Intentionally omitted.
30) Lutron Electronics, effective on date of factory commissioning
31) MAC Products, Inc., effective on date of shipment to jobsite
32) Caterpillar, effective on date of delivery
33) Xxxxxxx Network Power, effective May 1, 2007
34) Intentionally omitted.
35) Heritage Mechanical Services, effective on date of completion of contract
work
36) Perma Pipe, effective on the date of completion of testing
37) Intentionally omitted.
38) Dri Steem Humidifier Company, effective on installation date
39) Liebert, effective on startup date
40) Xxxxxx Controls Inc., effective on date of shipment
41) Quincy Compressor, effective on date of factory shipment
42) Idex Corp., effective on date of startup
43) BFS Industries LLC, effective on date of startup
44) Pneumercator, effective on date of installation
-2-
45) Paco Pumps, effective on date of shipment
46) Tigerflow, effective on date of shipment
47) Amtrol Inc., effective on date of manufacture
48) Thrush Company Inc., effective on date of manufacture
49) Intentionally omitted.
50) Intentionally omitted.
51) Twin City Fan Companies, Ltd., effective on date of original installation
52) Xxxxx Look Company, effective on date of shipment
53) Xxxxxxxx, effective on date of shipment
54) Intentionally omitted.
55) Xxxxxx Xxxxxx Roofing Corp., effective March 20, 2008
56) Xxxxx Company Warranty #10087, dated June 5, 2008
-3-
SCHEDULE 13
PROPERTY MANAGEMENT AGREEMENTS
1) NYTC Facility Maintenance and Management Agreement, dated January 4, 2007,
made by and between NYT Real Estate Company LLC and First New York Partners
Management, LLC, as amended by that certain Amendment to an Agreement dated
May 1, 2008 and that certain Side Letter dated May 15, 2008
EXHIBIT B
Guarantor's Certificate
EXECUTION COPY
GUARANTOR'S CERTIFICATE
This Guarantor's Certificate of THE NEW YORK TIMES COMPANY, a New York
corporation ("NYTC"), and THE NEW YORK TIMES SALES COMPANY, a Massachusetts
business trust ("NYT Sales"; collectively with NYTC, "Guarantor"), is being
delivered on this ___ day of March, 2009, to 620 EIGHTH NYT (NY) LIMITED
PARTNERSHIP, a Delaware limited partnership ("Landlord"), in connection with a
certain Guaranty and Suretyship Agreement (the "Guaranty") of even date herewith
given by Guarantor to Landlord in connection with the sale by NYC Real Estate
Company LLC, a New York limited liability company ("Seller"), to Landlord and
the leasing to Seller of Seller's interest in that certain leasehold condominium
situate in New York, New York, as more particularly described on Schedule 1
attached hereto and made a part hereof (the "Property").
ARTICLE X GUARANTOR'S REPRESENTATIONS. NYTC, FOR ITSELF AND ON BEHALF
OF NYT SALES, HEREBY REPRESENTS AND WARRANTS TO LANDLORD, ITS SUCCESSORS AND
ASSIGNS, WITH THE UNDERSTANDING THAT EACH SUCH REPRESENTATION AND WARRANTY IS
MATERIAL AND IS BEING RELIED UPON BY LANDLORD, AS FOLLOWS:
Section 10.01 Organization and Qualification. NYTC is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York and is duly qualified to do business and is in good
standing under the laws of each jurisdiction where the nature of the business
conducted by it or the properties owned or leased by it requires such
qualification.
Section 10.02 Authority and Authorization. Guarantor has full
power, authority and legal right to execute and deliver the Guaranty and to
perform its obligations thereunder, and all such action has been duly and
validly authorized by all necessary corporate proceedings on its part.
Section 10.03 Execution and Binding Effect. The Guaranty has been
duly and validly executed and delivered by Guarantor and constitutes a legal,
valid and binding obligation of Guarantor, enforceable against Guarantor in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights.
Section 10.04 Absence of Conflicts. Neither the execution and
delivery of the Guaranty nor performance of or compliance with the terms and
conditions thereof will (i) violate any law, rule or regulation, (ii) conflict
with or result in a breach of or a default under the articles of incorporation
or bylaws of Guarantor or any agreement or instrument to which Guarantor is a
party or by which it or any of its properties (now owned or hereafter acquired)
may be subject or bound or (iii) result in the creation or imposition of any
lien, charge, security interest or encumbrance upon any property (now owned or
hereafter acquired) of Guarantor, except pursuant to the Relevant Documents
(hereinafter defined).
Section 10.05 Authorizations and Filings. No authorization,
consent, approval, license, exemption or other action by, and no registration,
qualification, designation, declaration or filing with, any official body or
Governmental Authority (hereinafter defined) is or will be necessary or
advisable in connection with the execution and delivery of the Guaranty or
performance of or compliance with the terms and conditions thereof.
Furthermore, either Guarantor or Seller has obtained or
made, or will obtain or make prior to or concurrently with the Closing, all
authorizations, consents or approvals of and filings with any Governmental
Authority or any other Person required with respect to Guarantor and/or Seller
for the execution and delivery of the Relevant Documents and the performance of
its obligations thereunder.
Section 10.06 Financial Statements. The financial statements of
Guarantor and Seller for the fiscal year ending December 28, 2008 (audited)
heretofore furnished by it to Landlord are true and correct in all material
respects, have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods indicated and fairly
present the financial condition of Guarantor and Seller, subject to customary
year-end adjustments with respect to the unaudited financial statements. From
December 28, 2008, to the date hereof there has been no adverse change in any
material respect in the assets, liabilities, condition (financial or otherwise)
or business of Guarantor or Seller from that set forth or reflected in the
above-mentioned financial statements other than changes in the ordinary course
of business, none of which is materially adverse, and other than changes
resulting from general market conditions, which have not materially and
adversely affected Guarantor's ability to perform its obligations under the
Guaranty.
Section 10.07 Contracts. The list of contracts on Schedule 3 is a
true, correct and complete list of all of the utility, service, maintenance and
other similar contracts affecting the Property to which Guarantor, Seller or, to
Guarantor's knowledge, the Condominium Boards (or either of them) is a party
("Contracts"). Guarantor or Seller has provided Landlord with a true and
complete copy of each Contract in a velobound binder initialed by Seller and
Landlord or their respective counsel simultaneously herewith. Each Contract is
in full force and effect and is a legal, valid, binding and enforceable
obligation of each of the parties thereto. None of the Contracts has been
amended, modified or supplemented and no provision of any of the Contracts has
been waived.
(h) Permits. Guarantor or Seller has all material permits,
licenses, authorizations, consents, orders, approvals, easements and rights of
way (collectively, the "Permits and Approvals") required by every federal, state
and local government, authority, agency or regulatory body (collectively,
"Governmental Authority") or private party mandated or necessary in order to
permit Guarantor, Seller or the Condominium Boards (or either of them) to carry
on its business as presently conducted and as planned to be conducted at the
Property and to insure unimpaired vehicular and pedestrian ingress to and egress
from the Property, from and to a public right of way, respectively. All of the
Permits and Approvals are set forth on Schedule 4 and: (a) have been properly
issued and are fully paid for; (b) are in full force and effect and, to
Guarantor's knowledge, no suspension, cancellation or amendment of any of them
is threatened; and (c) will not be revoked, invalidated, violated or otherwise
adversely affected by the transactions contemplated by the Relevant Documents.
Guarantor or Seller has provided Landlord with a true and complete copy of each
Permit in a velobound binder initialed by Seller and Landlord or their
respective counsel simultaneously herewith.
-3-
(i) Certificates of Occupancy. Schedule 5 contains a true,
correct and complete list of all of the certificate(s) of occupancy held by
Guarantor or Seller in connection with the occupancy and operation of the
Property, copies of which have been delivered to Landlord in a velobound binder
and initialed by Seller and Landlord or their respective counsel simultaneously
herewith. The current temporary certificate of occupancy ("TCO") has been
properly issued and all fees payable in connection therewith have been paid in
full. Except for the applications that will be filed to obtain the permanent
certificate of occupancy, no applications are pending to amend the TCO, and
there are no pending or, to the best of Guarantor's knowledge, threatened
proceedings to cancel or revoke the TCO.
(j) Utilities. All water, sewer, gas, electric, telephone, cable,
drainage facilities, all other utilities required by any applicable law or by
the use and operation of the Property, together with all easements and rights of
way necessary for the use and enjoyment thereof, are installed to the property
lines of the Property, are connected pursuant to valid permits.
(k) Compliance with Other Instruments. Neither Guarantor nor
Seller is a party to or bound by any agreement or instrument or subject to any
charter or corporate restriction or any order, rule, regulation, writ,
injunction, proceeding or decree of any court or Governmental Authority or any
statute (collectively, "Seller's Legal Requirements") that adversely affects its
businesses, properties, assets or financial condition or that could adversely
affect Guarantor's or Seller's ability to perform its respective obligations
under the Relevant Documents. Neither the execution, delivery or performance of
any of the Relevant Documents by Guarantor or Seller, as the case may be, nor
compliance with the respective terms and provisions thereof, conflicts or will
conflict with or results or will result in a breach of any of the terms,
conditions or provisions of, or require consent pursuant to, or result in the
acceleration of, or require any payment or the increase in any payment under,
any of Seller's Legal Requirements or any indenture, lease, guaranty, mortgage,
deed of trust, loan, credit or other agreement or instrument to which Guarantor
or Seller is a party or by which its properties may be bound or affected
(collectively, "Seller Agreements"), or constitutes or will constitute a default
(or an event which, with the giving of notice or the passage of time, or both,
would constitute a default) thereunder, or results or will result in the
creation or imposition of any lien, charge or encumbrance upon the Property
pursuant to the terms of any of Seller's Legal Requirements or any of the Seller
Agreements. Neither Guarantor nor Seller is in default under any of Seller's
Legal Requirements or any of the Seller Agreements, and no event has occurred
that, with the giving of notice or passage of time, or both, would constitute a
material default thereunder.
(l) Environmental Condition of the Property. Except as disclosed
(i) in that certain Phase I Environmental Assessment pertaining to the Property
prepared by Property Solutions Incorporated and dated February 18, 2009, or (ii)
in the Environmental Reports (hereinafter defined), neither Guarantor, Seller,
any of Seller's subsidiaries nor, to
-4-
Guarantor's knowledge, any prior owner of any portion of the Property, has
deposited, stored, disposed of, transported, buried, dumped, injected, spilled,
leaked, discharged, poured, pumped, released or used, or suffered any of the
foregoing with respect to, any hazardous wastes, hazardous substances, hazardous
materials, toxic substances, hazardous air pollutants or toxic pollutants, as
those terms are used in the definition of Environmental Laws (as defined in the
Lease), at, upon, under, within or from all or any portion of the Property in
violation of any Environmental Law, and the Property does not presently contain
any such substance, material or pollutant in violation of any Environmental
Laws. No lien exists, nor is any lien threatened against, all or any portion of
the Property because of the existence of any such substance, material or
pollutant in violation of any Environmental Laws. As used herein the word
"contain" shall mean contain, deposit, storage, disposal, burial, dumping,
injecting, spilling, leaking or other placement or release in or on any of the
Property. There are no Environmental Laws which prohibit the present or intended
use of the Property. Guarantor or Seller has delivered to Landlord copies of the
environmental reports previously obtained by Seller regarding the Property and
listed on Schedule 6 (the "Environmental Reports").
(m) No Environmental Indemnities. Neither Guarantor nor Seller
has received any environmental indemnities from prior owners of the Property.
(n) Litigation; Taxes. There are no actions, suits or proceedings
pending or, to the best of Guarantor's knowledge, threatened against or
affecting Guarantor or Seller at law or in equity by or before any court or
administrative office or agency that, if adversely decided, would have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of Guarantor or Seller or on the ability of Guarantor or
Seller to perform its obligations under the Relevant Documents (including, with
respect to Guarantor, the Guaranty). Neither Guarantor nor Seller is in default
in the payment of any taxes levied or assessed against the Property or any of
its other assets that are due and payable, and has filed all tax returns that
are required to be filed.
(o) Compliance with Anti-Terrorism, Embargo, Sanctions and
Anti-Money Laundering Laws. Neither Guarantor nor Seller (i) is currently
identified on the OFAC List and (ii) is a Person with whom a citizen of the
United States is prohibited to engage in transactions by any trade embargo,
economic sanction, or other prohibition of United States law, regulation, or
Executive Order of the President of the United States. Guarantor agrees to
confirm this representation and warranty in writing on an annual basis if
requested by Landlord to do so.
(p) Compliance with ADA. The Property, including the use and
operation thereof, is and at the time of Closing will be, in compliance with all
applicable Legal Requirements, including without limitation the Americans With
Disabilities Act ("ADA"), Public Law 101-336, as codified, and with all
requirements of every Governmental Authority, including without limitation
zoning, subdivision, building and environmental requirements. The
-5-
Property is separately assessed for purposes of ad valorem real property taxes.
All platting and replatting requirements in respect of the Land have been
satisfied to accommodate the operation of the Improvements and no subdivision or
parcel map not already obtained is required to transfer the Property to
Landlord. Except for the PILOT regime in effect for the Property, there is no
special or preferential assessment in effect with respect to the Property. The
Property is presently zoned General Central Commercial District and Light
Manufacturing District, all within the Special Midtown District. No variances,
reliance on adjacent property or special exception is required for the operation
and use of the Improvements.
(q) Declarations. Except as disclosed in that certain title
report issued by Chicago Title Insurance Company in favor of Landlord pertaining
to the Property and dated on or about the date hereof ("Title Report"), there
are no declarations of covenants, conditions and restrictions or similar
agreements ("Declarations") that run with the Land to which Guarantor or Seller
is a party or by which Guarantor or Seller or the Property or any portion
thereof may be bound; and Guarantor or Seller has delivered or caused to be
delivered to Landlord true, complete and legible copies of the Declarations and
related agreements.
(r) Representation Regarding Declarations. Except as may be
specifically set forth in the Title Report, there has been no written claim of
default under any of the Declarations by any party thereto that has not been
cured; and, to Guarantor's knowledge, there exists no event that alone, or with
notice or the lapse of time, or both, would constitute a default under any of
the Declarations by any party thereto; except, however, that Seller has advised
Landlord that Seller has received notice from ESDC stating that it is not in
compliance with its obligations to provide ESDC, for ESDC's review and approval
in accordance with the terms of the Severance Lease, with details relating to
the design and programming of the flat screen televisions installed by Seller in
lieu of retail signage. All sums due and payable by Guarantor or Seller under
the Declarations as of the Closing have been paid in full prior to the Closing.
(s) Designation; Flood Zone. The Property is not located in any
conservation or historic district, or in an area that has been identified by the
Secretary of Housing and Urban Development as an area having special flood
hazards.
(t) Insurance. Neither Guarantor nor Seller has received written
notice or demand from any of the insurers of all or any portion of the Property
(or insurers of any activities conducted thereon) to correct or change any
physical condition on the Property or any practice of Guarantor or Seller.
Guarantor, Seller or the Condominium Boards (or either of them) is in compliance
with the requirements of all insurance policies affecting all or any portion of
the Property, which are set forth on Schedule 8 (the "Existing Insurance
Policies").
-6-
(u) Expansion of Property. Neither Guarantor nor Seller has made
written application to any Governmental Authority for any expansion or further
development of the Property, and neither Guarantor nor Seller has received
written notice that any expansion or further development of the Property is
subject to any restrictions or conditions except as set forth in the
Declarations and local zoning law requirements.
(v) Access. Neither Guarantor nor Seller has received notice from
any Governmental Authority, private party or other entity responsible therefor
of any fact or condition that would result in the termination of (a) unimpaired
vehicular and pedestrian access from the Property to presently existing public
roads or (b) access from the Property to existing sewer or other utility
facilities servicing, adjoining or situated on the Property.
(w) Notices Regarding Restrictions. Neither Guarantor nor Seller
has received notice from any Governmental Authority or entity responsible
therefor of (a) any pending or contemplated change in any federal, state or
local governmental or private restriction applicable to the Property or (b) any
pending or threatened judicial or administrative action or (c) any action
pending or threatened by adjacent land owners or other persons, which would
result in a material change in the condition of the Property or any part thereof
or in any way prevent or materially limit the construction and/or operation of
any Improvements or any part thereof.
(x) Improvements. Except as disclosed in that certain Property
Condition Assessment pertaining to the Property prepared by Property Solutions
Inc. and dated February 4, 2009, the Improvements and Equipment (as defined in
the Lease) are in good condition and repair and there are no known material
physical or mechanical defects in the Improvements, including without limitation
the roof, the structural components, the plumbing, heating, ventilation, air
conditioning, elevators, fire detection and electrical systems. All such items
are in good operating condition and repair. There is no actual or, to
Guarantor's knowledge, threatened settlement, earth movement, termite
infestation or damage affecting the Property.
(y) Financial Defaults. Neither Guarantor nor Seller currently
is, or ever has been, in default under any credit agreement or in default with
respect to any indebtedness having a principal balance of $5,000,000.00 or more.
(z) Third-Party Rights. Except as disclosed in the Title Report,
no entity or person holds any right of first offer, right of first refusal or
any other right or option to purchase or occupy all or any portion of the
Property.
-7-
(aa) Alterations. There currently are no on-going or planned
alterations for any portion of the Property, except for a climbing deterrent
system for a portion of the exterior of the Building, which work has not yet
been commenced.
(bb) Subway Entrance. The diagram attached to Schedule 10 sets
forth, in its entirety, that portion of the subway entrance that is connected to
the Building for whose maintenance the Condominium is responsible. Furthermore,
the work under that certain Site 8 Declaration of Design, Use and Operation by
and between New York State Urban Development Corporation d/b/a Empire State
Development Corporation and 42nd St. Development Project, Inc. and dated
December 21, 2001, is substantially completed.
(cc) Recognition. Guarantor hereby agrees that it shall recognize
Landlord as a Recognized Mortgagee under the terms of Article 31 of the
Severance Lease, with all of the rights and privileges thereof.
2. Guarantor's Representations Pertaining to Seller. NYTC hereby
represents and warrants to Landlord, its successors and assigns, with the
understanding that each such representation and warranty is material and is
being relied upon by Landlord, as follows:
(a) Seller is a limited liability company that is duly organized,
validly existing and in good standing under the laws of New York. Seller's
principal place of business is 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
Seller is, and has been since its formation, in compliance with the terms of its
articles of organization and its Operating Agreement.
(b) Neither the execution and delivery of the Relevant Documents
nor performance of or compliance with the terms and conditions thereof will (i)
violate any law, rule or regulation, (ii) conflict with or result in a breach of
or a default under the articles of formation or Operating Agreement of Seller or
any other agreement or instrument to which Seller is a party or by which it or
any of its properties (now owned or hereafter acquired) may be subject or bound
or (iii) result in the creation or imposition of any lien, charge, security
interest or encumbrance upon any property (now owned or hereafter acquired) of
Seller, except pursuant to the Relevant Documents.
(c) Seller has full power, authority and legal right (i) to sell
its interest in the Property to Landlord, (ii) to execute and deliver that
certain Landlord Mortgage (as defined in the Lease) as well as that certain
Purchase and Sale Agreement ("PSA") and that certain Lease Agreement ("Lease")
by and between Seller and Landlord of even date herewith for Seller's interest
in the Property and (iii) to execute and deliver such other instruments,
documents and agreements as may be necessary or appropriate to effect the
foregoing transactions and to perform and observe the terms and conditions of
each of the documents described above (such documents being collectively
referred to as the "Relevant Documents").
-8-
(d) The Landlord Mortgage, the PSA, the Lease and all other
documents executed by Seller that are to be delivered to Landlord at the Closing
(i) are or at the time of the Closing will be duly authorized, executed and
delivered by Seller, (ii) are or at the time of the Closing will be legal, valid
and binding obligations of Seller enforceable against Seller in accordance with
their terms, and (iii) do not and at the time of Closing will not conflict with
or result in the breach of any judgment, decree, writ, injunction, order or
award of any arbitrator, court or governmental authority binding upon Seller, or
result in the breach of any term or provision of, or constitute a default, or
result in the acceleration of any obligation under any loan agreement,
indenture, financing agreement, or any other agreement or instrument of any kind
to which Seller is a party or to which Seller or the Property is subject.
(e) Seller is not a foreign corporation, foreign partnership,
foreign trust and/or foreign estate (as those terms are defined in the Internal
Revenue Code of 1986, as amended and in the accompanying regulations), and
Seller's U.S. employer identification number is 00-0000000.
(f) Neither Seller nor any member of Seller is a Specially
Designated National or Blocked Person. As used herein, the term "Specially
Designated National or Blocked Person" shall mean a person or entity (i)
designated by the Department of Treasury's Office of Foreign Assets Control, or
other governmental entity, from time to time as a "specially designated national
or blocked person" or similar status, (ii) described in Section 1 of U.S.
Executive Order 13224 issued on September 23, 2001, or (iii) otherwise
identified by government or legal authority as a person or entity with whom
Landlord or its affiliates are prohibited from transacting business.
(g) Seller has not commenced a voluntary case under Bankruptcy
Law (hereinafter defined) nor has there been commenced against Seller an
involuntary case under Bankruptcy Law, nor has Seller consented to the
appointment of a Custodian (hereinafter defined) of it or for all or any
substantial part of its property, nor has a court of competent jurisdiction
entered an order or decree under any applicable Bankruptcy Law that is for
relief against Seller or appoints a Custodian for Seller or for all or any
substantial part of Seller's property. The term "Bankruptcy Law" means the
United States Bankruptcy Code, 11 U.S.C.A. Sections 101 et seq. or any federal
or state insolvency laws or laws for composition of indebtedness or for the
reorganization of debtors. The term "Custodian" means any receiver, trustee,
assignee, liquidator or similar official under and Bankruptcy Law.
(h) Except for the approvals and consents listed on Schedule 3
(the "Third Party Consents"), no authorizations, consents or approvals of or
filings with any Governmental Authority or any other Person is required with
respect to Seller for the execution and delivery of any Relevant Document and
the performance of its obligations thereunder. Seller has obtained, or will have
obtained prior to the Closing, all Third-Party Consents.
-9-
(i) Neither Guarantor nor Seller has received notice of any
condemnation proceedings, other than New York State Urban Development Corp.,
Plaintiff, vs. 42nd St. Development Project, Inc. et al., Defendants, Index No.
402727/02, which occurred in connection with the initial development and
construction of the Building, either instituted or planned to be instituted,
which would affect adversely either the use and operation of the Property for
its present use or the value of the Property, nor has Guarantor or Seller
received notice of any special assessment proceedings affecting the Property.
(j) Guarantor or Seller has delivered to Landlord true, correct
and complete copies of each of the Severance Lease and the Condominium
Declaration, including, in each case, all amendments and/or modifications
thereto, in a velobound binder initialed by Seller and Landlord or their
respective counsel simultaneously herewith. Each of the Severance Lease and the
Condominium Declaration, as same have been amended or modified to date, is in
full force and effect and neither Guarantor nor Seller has received notice from
any party that Guarantor or Seller is in default under the Severance Lease or
the Condominium Declaration, as the case may be.
(k) The list of warranties on Schedule 12 is a true, correct and
complete list of all material warranties ("Warranties") affecting the Property
to which Guarantor, Seller or, to Guarantor's knowledge, the Condominium Boards
(or either of them) is a party. Guarantor or Seller has provided Landlord with a
true and complete copy of each Warranty in a velobound binder initialed by
Seller and Landlord or their respective counsel simultaneously herewith. Each
Warranty is in full force and effect and is a legal, valid, binding and
enforceable obligation of each of the parties thereto. None of the Warranties
has been amended, modified or supplemented and no provision of any of the
Warranties has been waived.
(l) The list of property management agreements on Schedule 13 is
a true, correct and complete list of all property management agreements
("Property Management Agreements") affecting the Property to which Guarantor,
Seller or, to Guarantor's knowledge, the Condominium Boards (or either of them)
is a party. Guarantor or Seller has provided Landlord with a true and complete
copy of each Property Management Agreement, as amended, if applicable, in a
velobound binder initialed by Seller and Landlord or their respective counsel
simultaneously herewith. Each Property Management Agreement is in full force and
effect and is a legal, valid, binding and enforceable obligation of each of the
parties thereto. No provision of any of the Property Management Agreements has
been waived.
(m) Intentionally Omitted.
3. Bankruptcy Remoteness of Seller. Guarantor hereby acknowledges and
agrees that Seller's assets shall not be consolidated with the assets of
Guarantor or any other person or entity owning directly or indirectly an
interest in Seller in the event of a bankruptcy or insolvency of Guarantor or
any such person or entity.
-10-
4. Excess Site Acquisition Costs. Seller's proportionate share of the
credit balance of the Excess Site Acquisition Costs (as defined in that certain
Site 8 Land Acquisition and Development Agreement by and among New York State
Urban Development Corporation d/b/a Empire State Development Corporation, 42nd
St. Development Project, Inc. and The New York Times Building LLC dated December
21, 2001) with respect to the Property, calculated on an accrual basis, is, as
of March 1, 2009, $12,390,676.00, all of which Guarantor hereby covenants is
assignable to Landlord.
5. Interpretation. All terms not otherwise defined herein shall have
the meaning ascribed to them in the PSA.
6. Guarantor's Knowledge. Landlord expressly understands and agrees
that the phrase "to Guarantor's knowledge" as used herein means a matter that
(i) with respect to NYTC, Xxxxx Xxxxx and/or Xxxxxxx X. Xxxxxxxx, each as
officers of NYTC, actually is aware of or received written notice of, and (ii)
with respect to NYT Sales, Xxxxxxx X. Xxxxxxxx, as President of NYT Sales,
actually is aware of or received written notice of; provided that Guarantor, in
each case, represents that Xxxxx Xxxxx is the Senior Vice President, Operations
of The New York Times Newspaper Division of NYTC and Xxxxxxx X. Xxxxxxxx is the
General Counsel of NYTC and President of NYT Sales, each of which are the
officers of Guarantor most familiar with the Property and the condition and
operation thereof.
The fact that the representations of Guarantor set forth in this
Certificate may be limited to the best of Guarantor's knowledge shall not be
deemed to modify or alter any provision of any of the Relevant Documents
requiring Guarantor to indemnify Landlord.
7. Indemnity. Guarantor shall indemnify and hold harmless Landlord,
its successors and assigns, from and against any and all liabilities, losses,
damages, costs, expenses (including without limitation reasonable attorneys'
fees and expenses), causes of action, suits, claims, demands or judgments of any
nature howsoever caused should any representation or warranty set forth herein
prove to have been untrue or inaccurate when made or arising from any breach by
Guarantor of any representation or warranty set forth herein.
8. Successors and Assigns; Survival. This Guarantor's Certificate
shall be for the benefit of Landlord, its successors and assigns, and shall be
binding upon Guarantor and each of its successors and assigns. The
representations, warranties, covenants and indemnifications made by Guarantor in
this Guarantor's Certificate shall survive until repayment in full of the
Monetary Obligations (as defined in the Lease) under the Lease.
9. Further Assurances. Within ten (10) days after written request,
Guarantor shall, or shall cause Seller to, re-make, re-execute, re-deliver,
and/or file or cause the same to be done, such corrected or replacement
documents executed in connection with the transaction contemplated hereby
("Section 36(p) Documents") as Landlord may deem reasonably necessary
-11-
in order to give effect to the rights expressly conferred on Landlord pursuant
to the Lease and other Relevant Documents, such that the documents for this
transaction shall be an accurate reflection of the parties' agreement thereunder
provided. However, under no circumstances shall Guarantor's or Seller's
obligations and/or liabilities be increased by reason of the Section 36(p)
Documents nor shall Guarantor's or Seller's rights and/or benefits be decreased
by reason of the Section 36(p) Documents.
10. Broker Commissions. Neither Guarantor nor Seller has incurred any
obligation or liability for any commission or fee that is or will be payable to
any person by reason of the transactions contemplated hereby, including without
limitation the consummation of the sale and the lease of Seller's interest in
the Property, except for fees payable to Xxxxxxx & Xxxxxxxxx, Inc. pursuant to a
separate agreement between Seller and Xxxxxxx & Wakefield, Inc. Furthermore,
there are no commissions or fees that are or will be payable to any person in
connection with the leasing of any portion of the Building, including in
connection with any expansions, extensions of renewals of any existing leases.
Guarantor and Seller shall jointly and severally indemnify and hold Landlord
harmless from and against any and all loss, damage, liability or expense,
including costs and reasonable attorneys' fees, which Landlord may incur or
sustain by reason of or in connection with any misrepresentation by Guarantor or
Seller with respect to the foregoing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-12-
EXECUTION COPY
IN WITNESS WHEREOF, NYTC, for itself and on behalf of NYT Sales, duly
executed this Guarantor's Certificate on the date and year first above written.
THE NEW YORK TIMES COMPANY, a
New York corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
SCHEDULE 1
The Condominium Units (in the Building located at and known as THE NEW YORK
TIMES BUILDING CONDOMINIUM and by Street Number 000-000 0XX XXXXXX, XXX XXXX,
XXX XXXX), designated and described as Units (SEE SCHEDULE ANNEXED) (hereinafter
called the "Units") in the Declaration Establishing a Plan of Leasehold
Condominium Ownership of Premises made by The New York Times Building LLC, as
Declarant, under the Condominium Act of The State of New York (Article 9-B of
the Real Property Law of the State of New York), dated as of August 4, 2006 and
recorded August 15, 2006 in the Office of the Register The City of New York (the
"Register"), as CRFN 2006000460293, as amended by First Amendment to Declaration
dated January 29, 2007 and recorded as CRFN 2007000075106, and Second Amendment
to Declaration dated October 11, 2007 and recorded as CRFN 2008000008734, and
Third Amendment to Declaration dated March 6, 2009 and recorded as CRFN
2009000072453, and Fourth Amendment to Declaration dated March 6, 2009 to be
recorded with the Register (which Declaration, and any further amendments
thereto, are hereinafter collectively called the "Declaration"), establishing a
plan for leasehold condominium ownership of said Building and the land upon
which the same is erected (hereinafter sometimes collectively called the
"Property") and also designated and described as Tax Lots No. (SEE SCHEDULE
ANNEXED), Block 1012 Section 4, Borough of MANHATTAN on the Tax Map of the Real
Property Assessment Department of the City of New York and on the floor plans of
said Building certified by Xxxxxx Xxxxxx, approved by the Real Property
Assessment Bureau on August 13, 2006 and filed as Condominium Plan No. 1595 on
August 15, 2006 in the aforesaid Register's Office.
The land upon which the Building containing the Units is erected as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, bounded
and described as follows:
BEGINNING at the corner formed by the intersection of the northerly line of Xxxx
00xx Xxxxxx with the easterly line of 8th Avenue,
RUNNING THENCE northerly along said easterly line of 8th Avenue, 197 feet 6
inches to the corner formed by the intersection of the easterly side of 0xx
Xxxxxx with the southerly line of West 00xx Xxxxxx;
THENCE easterly along said southerly line of West 41st Street, 400 feet;
THENCE southerly and parallel to said easterly line of 8th Avenue, 197 feet 6
inches to the northerly line of Xxxx 00xx Xxxxxx;
THENCE westerly along said northerly line of West 40th Street, 400 feet to the
point or place of BEGINNING,
TOGETHER with an undivided percentage interest (SEE SCHEDULE ANNEXED) in the
Common Elements and the NYTC Limited Common Elements (as such terms are defined
in the Declaration) of the New York Times Building Condominium, recorded as CRFN
2006000460293 as amended.
-2-
SCHEDULE OF UNITS
PERCENTAGE INTEREST
UNIT DESIGNATION TAX LOT IN COMMON ELEMENTS
---------------- ------- -------------------
0-A 1001 0.6726%
1-A 1003 2.0809%
2-A 1009 4.7683%
3-A 1010 4.7719%
4-A 1011 4.2717%
5-A 1012 1.6453%
6-A 1013 1.7431%
7-A 1014 1.7431%
8-A 1015 1.7431%
9-A 1016 1.7431%
10-A 1017 1.7431%
11-A 1018 1.7431%
12-A 1019 1.7431%
13-A 1020 1.7431%
14-A 1021 1.7546%
15-A 1022 1.3954%
16-A 1023 1.7591%
17-A 1024 1.7312%
18-A 1025 1.7819%
19-A 1026 1.7819%
20-A 1027 1.7819%
28-A 1035 0.4470%
-3-
SCHEDULE 2
INTENTIONALLY OMITTED
SCHEDULE 3
Contracts
Management Agreements
1) NYTC Facility Maintenance and Management Agreement, dated January 4, 2007,
made by and between NYT Real Estate Company LLC and First New York Partners
Management, LLC, as amended by that certain Amendment to an Agreement dated
May 1, 2008 and that certain Side Letter dated May 15, 2008
Service Contracts
1) Intentionally omitted.
2) Intentionally omitted.
3) Scientific Fire Prevention Company, for environmental grease trap services,
dated March 6, 2008
4) Scientific Fire Prevention Company, for precipitator service, dated March
6, 2008
5) Caterpillar, Inc., for electric power services, dated October 1, 2008 and
effective November 1, 2008
6) Caterpillar, Inc., electric power services, dated October 1, 2008 and
effective November 1, 2008 (second contract)
7) Liebert Global Services, for precision cooling services (data network),
dated May 9, 2007
8) Scientific Fire Prevention Company, for grease filter services (halton
filters), dated March 6, 2008
9) Scientific Fire Prevention Company, for grease filter services (charcol
filters), dated March 6, 2008
10) Scientific Fire Prevention Company, for grease filter services
(pre-filters), dated March 6, 2008
11) Scientific Fire Prevention Company, for kitchen exhaust system maintenance,
dated March 6, 2008
12) ABCO Peerless Fire Suppression Corp., for fire suppression maintenance,
dated March 31, 2008
13) Colony Pest Management, for pest control in the cafeteria, dated May 8,
2007
14) Colony Pest Management, for pest control for Floors 2 thru 27, dated
January 25, 2008
15) H.O. Penn Machinery Co., for generator preventative maintenance, dated July
3, 2008
16) H.O. Penn Machinery Co., for generator regular maintenance, dated August 8,
2008
17) Siemens, for HVAC equipment technical support (HVAC chiller), dated
November 28, 2007
18) Trane, for chiller equipment servicing (HVAC chiller), dated November 11,
2008
19) Verizon, for telephone services, dated April 3, 2007
20) Siemens, for HVAC equipment technical support (life safety chiller), dated
November 28, 2007
21) Siemens, for life safety system inspection, dated April 1, 2008
22) Trane, for chiller equipment servicing (life safety chiller), dated March
30, 2007
23) Platinum Maintenance Services Corp., for metal maintenance, dated September
4, 2008
24) Xxxxxxx Building Services, for cleaning services, dated January 1, 2008
25) Colony Pest Management Inc., for pest control, dated February 23, 2007
26) IESI NY Corp., for trade waste removal, dated November 1, 2008
27) Siemens, for life safety system inspection, dated April 1, 2008
28) X.X. Xxxxxxxxx & Sons, Inc., for rental uniforms, dated January 9, 2007
SCHEDULE 4
Permits
1) Intentionally omitted.
2) Permit, issued by the Department of Environmental Protection of the City of
New York, for general EPA compliance, dated April 17, 2008
3) Permit, issued by Isseks Bros. Inc., for water tank compliance, dated
October 1, 2008
4) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for the wheelchair lift, inspected as of
August 7, 2008
5) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for the dumb waiter, inspected as of
September 13, 2007
6) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1W6000, inspected as of
August 13, 2007
7) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 11/21859, inspected as of
July 18, 2007
8) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 11/21860, inspected as of
July 9, 2007
9) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1F10181, inspected as of
August 7, 2008
10) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43771, inspected as of
August 8, 2008
11) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P44042, inspected as of
November 13, 2008
12) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43773, inspected as of
August 5, 2008
13) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43772, inspected as of
February 9, 2009
14) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43795, inspected as of
August 7, 2008
15) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43794, inspected as of
August 7, 2008
16) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43793, inspected as of
August 7, 2008
17) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43792, inspected as of
August 7, 2008
18) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43791, inspected as of
August 7, 2008
-2-
19) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43790, inspected as of
August 7, 2008
20) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43778, inspected as of
August 8, 2008
21) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43777, inspected as of
August 8, 2008
22) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43776, inspected as of
August 8, 2008
23) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43775, inspected as of
August 8, 2008
24) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43779, inspected as of
August 8, 2008
25) Permit, issued by the Department of Buildings of the City of New York, for
elevator inspection compliance for elevator no. 1P43774, inspected as of
August 8, 2008
(26) Registration issued by City of New York Department of Environmental
Protection for Internal Combustion Fuel Burning Equipment, No. PB 82-07 Z,
issued 4/2/07
(27) Letter of Approval issued by City of New York Fire Department for
Inspection dated 10/23/08, #595183
-3-
(28) Letter of Approval issued by City of New York Fire Department for
Self-Certification dated 10/23/08, #593003
-4-
SCHEDULE 5
Certificates of Occupancy
1) Temporary Certificate of Occupancy, effective January 9, 2009, issued by
the New York City Department of Buildings in CO Number 103145990T017,
expiring April 9, 2009
SCHEDULE 6
Environmental Reports
1) Letter, dated October 19, 2005, from Roux Associates Inc., regarding
completed remediation
SCHEDULE 7
Intentionally Omitted
SCHEDULE 8
EXISTING INSURANCE POLICIES
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
PROPERTY- CORE & SHELL (FOREST CITY ENTERPRISES PROGRAM- $750M TOTAL PROPERTY LIMITS; INCLUDING $25M IN TERRORISM LIMITS)
LEXINGTON INSURANCE CO. 8157556 Perils Insured: "All Risks" of 100% of Prim $50,000 except for the 11/1/08-
direct physical loss or damage $25M following: 11/1/09
including Flood, Earthquake and - PD and/or BI loss
Boiler and Machinery Accidents in California and
and Terrorism Coverage caused by the peril
of Earthquake:
greater of $100,000
or 5% of TIV
- PD and/or BI loss
caused by the peril
of Named Windstorm
in FL, HI and Tier
I Counties: greater
of $250,000 or 5%
of TIV
- Flood: $500,000 or
5% of TIV
Service Interruption:
24 hour waiting period
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
ESSEX INSURANCE CO. ESP6231 10% of $25M xs 11/1/08-
$25M 11/1/09
CONTINENTAL CASUALTY RMP205725244 10% of $25M xs 11/1/08-
CO. $25M 11/1/09
LEXINGTON INSURANCE CO. 8757557 10% of $25M xs 11/1/08-
$25M 11/1/09
LLOYDS OF LONDON WBO801221 7% of $25M xs 11/1/08-
$25M 00/0/00
XXXXXX XX XXXXXX XXX000000 16.67% of $25M 11/1/08-
xs $25M 11/1/09
INTERNATIONAL WBO801207 2% of $25M xs 11/1/08-
INSURANCE CO. OF $25M 00/0/00
XXXXXXX
XXXXXXX XXXXXXXXXXX XX XXX000000 7% of $25M xs 11/1/08-
AG $25M 11/1/09
LLOYDS OF LONDON 1919 O8 SSP1328604002 6.67% of $25M 11/1/08-
(STARR) xs $25M 11/1/09
FEDERAL INSURANCE CO. 35891263 13.33% of $25M 11/1/08-
xs $25M 11/1/09
ARCH INSURANCE CO. PRP001107403 4% of $25M xs 11/1/08-
$25M 11/1/09
COMMONWEALTH INSURANCE US7665 3.33% of $25M 11/1/08-
CO. xs $25M 11/1/09
ALLIED WORLD ASSURANCE P005371/004 10% of $25M xs 11/1/08-
CO. $25M 11/1/09
MAX BERMUDA LTD. 232042687PRMAN2008 10% of $50M xs 11/1/08-
$50M 11/1/09
ZURICH AMERICAN INS. XPP591700103 10% of $50M xs 11/1/08-
CO. $50M 11/1/09
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
LEXINGTON INS. CO. 8757558 10% of $50M xs 11/1/08-
$50M 11/1/09
FEDERAL INSURANCE CO. 35891263 13.33% of $50M 11/1/08-
xs $50M 00/0/00
XXXXXX XX XXXXXX 0000 08SSP1328604002 6.67% of $50M 11/1/08-
(STARR) xs $50M 11/1/09
ARCH INSURANCE CO. PRP001107403 4% of $50M xs 11/1/08-
$50M 11/1/09
COMMONWEALTH INSURANCE US7665 3.33% of $50M 11/1/08-
CO. xs $50M 11/1/09
ALLIED WORLD ASSURANCE P005371/04 10% of $50M xs 11/1/08-
CO. $50M 11/1/09
GLACIER REINSURANCE OF WB0801209 7% of $50M xs 11/1/08-
AG $50M 11/1/09
INTERNATIONAL WB0801207 2% of $50M xs 11/1/08-
INSURANCE CO. OF $50M 00/0/00
XXXXXXX
XXXXXX XX XXXXXX WB0801132 16.67% of $50M 11/1/08-
xs $50M 11/1/09
LLOYDS OF LONDON WB0801223 7% of $50M xs 11/1/08-
$50M 11/1/09
MIC PROPERTY & XE136174 & XEP30155 10% of $100M 11/1/08-
CASUALTY INS. CO. xs $100M 11/1/09
(AOS) & INTEGON
SPECIALTY CO. (GA ONLY)
ZURICH AMERICAN INS. XPP5917001-03 5% of $100M xs 11/1/08-
CO. $100M 11/1/09
ACE AMERICAN INS. CO. GPAD37743276 15% of $100M 11/1/08-
xs $100M 11/1/09
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
XL INS. CO. OF US00010211PR08A 20% of $100M 11/1/08-
AMERICA, INC. xs $100M 11/1/09
LIBERTY MUTUAL FIRE MQ2L9L443687018 10% of $100M 11/1/08-
INS. CO. xs $100M 00/0/00
XXXXX XXX. XX. XXX0000 2.5% of $100M 11/1/08-
xs $100M 11/1/09
LLOYD'S OF LONDON GEP2214 5% of $100M xs 11/1/08-
(GLOBAL EXCESS $100M 11/1/09
PARTNERS)
SR INTERNATIONAL WB0801220 20% of $100M 11/1/08-
BUSINESS INS. CO. xs $100M 11/1/09
ENDURANCE INS. CO. CPN10001117800 12.5% of $100M 11/1/08-
xs $100M 11/1/09
ARC INS. CO. PRP001107403 10% of $300M 11/1/08-
xs $200M 11/1/09
HOMELAND INS. CO. (ONE YSP1618 8.33% of $300M 11/1/08-
BEACON) xs $200M 11/1/09
LANDMARK AMERICAN INS. LHD359900 33.33% of 11/1/08-
CO. (RSUI) $300M xs $200M 11/1/09
LLOYD'S OF LONDON WB0801224 10% of $300M 11/1/08-
xs $200M 11/1/09
COMMONWEALTH-VANCOUVER US7666 8.33% of $300M 11/1/08-
xs $200M 11/1/09
LIBERTY MUTUAL FIRE MQ2L9L443687028 5% of $300M xs 11/1/08-
INS. CO. $200M 11/1/09
XL INS. CO. OF US00010211PR08A 25% of $300M 11/1/08-
AMERICA, INC. xs $200M 11/1/09
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
ACE AMERICAN INS. CO. GPAD37743276 14% of $250M 11/1/08-
xs $500M 11/1/09
LEXINGTON INS. CO. 1231800 31% of $250M 11/1/08-
xs $500M 11/1/09
XL INSURANCE CO. OF US00010211PR08A 25% of $250M 11/1/08-
AMERICA, INC. xs $500M 11/1/09
HOMELAND IN. CO. (ONE YSP1615 30% of $250M 11/1/08-
BEACON) xs $500M 11/1/09
HOMELAND IN. CO. (ONE YSP1615 30% of $250M 11/1/08-
BEACON) xs $500M 11/1/09
TERRORISM LIABILITY- CORE & SHELL (FOREST CITY ENTERPRISES PROGRAM- $525M TOTAL TERRORISM LIMITS XS OF $25M INCLUDED IN PROPERTY)
LLOYD'S OF LONDON E08RQ2763800 $225M xs $25M 11/1/08-
00/0/00
XXXXX'X XX XXXXXX X00XX00000X00 $300M xs $250M 11/1/08-
11/1/09
PROPERTY- PERSONAL CONTENTS & BUSINESS INTERRUPTION (NYT PROGRAM)
ACE American Ins. Co. GPAD37747208 Perils Insured: "All Risks" of 1. 50% of Prim 9/1/08-
direct physical loss or damage $100M 9/1/09
including Flood, Earthquake and
Boiler and Machinery Accidents
including the following:
Property Damage $250,000 except for
All Real and Personal Property the following:
of every kind and description, - Subsidence at
including, but not limited to College Point:
improvements and betterments; $2,500,000
property of others in the care, - PD and/or BI loss
custody or control of the in California and
Insured or for which the caused by the peril
Insured is responsible, legally of
liable or has agreed to insure;
except as more fully defined in
the proposed policy wording:
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
Earthquake:
Time Element greater of $500,000
Business Interruption Gross or 5% of TIV
Earnings; Business Interruption
Loss of Profits (where
applicable); Extra Expense;
Rental Income; Leasehold
Interest;
All Property Damage and Time - PD and/or BI loss
Element coverage as more fully caused by the peril
defined in policy wording of Named Windstorm:
greater of $500,000
or 5% of TIV
- Flood: $500,000
- Service
Interruption: 24
hour waiting period
Limit of Liability
$700,000,000
PER OCCURRENCE AND ANNUAL
AGGREGATES
1. Earthquake: $100,000,000
except;
- California EQ: $25,000,000
2. Flood: $100,000,000 except;
- $20,000,000 for Flood Zone A
for Newly Acquired Locations
SUBLIMITS: The following
sub-limits, for each and every
occurrence
3. Contingent Time Element:
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
$125,000,000, as respects to
direct suppliers and recipients
4. Leasehold Interest:
$25,000,000
5. Property in the Course of
Construction (including
$10,000,000 in Business
Interruption): $45,000,000
6. Newly Acquired Properties
(90 days reporting): $50,000,000
7. Miscellaneous Unnamed
Locations: $30,000,000
8. Property Damage / Time
Element Service Interruption:
$50,000,000 (10 Miles).
9. Extra Expense: $100,000,000
10. Inland Transit: $10,000,000
11. Valuable Papers and
Records: $95,800,000
12. EDP Media Replacement:
$75,000,000
13. Accounts Receivable:
$100,000,000
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
14. Rental Value: $25,000,000
15. Royalties: $25,000,000
16. Research and Development:
$25,000,000
17. Fine Arts: $66,635,000
18. Debris Removal: The greater
of $75,000,000 or 25% of PD/TE
loss
19. Cleanup and Removal of
Pollutants from land and water:
$100,000 (Lex only)
20. Expediting Expense:
$25,000,000
21. Errors and Omissions:
$25,000,000
22. Ingress / Egress & Civil
Authority: $50,000,000 - 30
days
23. Extended period of
Indemnity: 180 days
24. Demolition & Increased Cost
of Construction: $100,000,000
25. Impounded Water:
$50,000,000 - 30 days
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
26. Jewelry: $10,000,000
27. Furs: $10,000,000
28. Boiler and Machinery:
$100,000,000 except;
- Hazardous Substances:
$25,000,000
- Consequential Loss:
$25,000,000
- Ammonia Contamination:
$25,000,000
- Water Damage: $25,000,000
- $50,000 (Lexington Only)
29. Professional Fees:
$1,000,000, for each and every
occurrence
30. Foreign Endorsement:
$10,000,000 for scheduled
locations and $1,000,000 for
unscheduled locations
Lexington Ins. Co. 4271642 Perils Insured - see above 50% of Primary Deductible - see above 9/1/08-
$25M 9/1/09
Arch Ins Co. PRP 0017748 02 Perils Insured - see above 13.33% of $75M Deductible - see above 9/1/08-
xs $25M & 10% 9/1/09
of $300M xs
$100M
Global Excess Partners GEP2190 Perils Insured - see above 6.67% of $75M Deductible - see above 9/1/08-
xs $25M 9/1/09
Allianz Global Risks US CLP 3009788 Perils Insured - see above 33.34% of Deductible - see above 9/1/08-
$600M xs 100M 9/1/09
SR Int'l MH33575 Perils Insured - see above 15% of $675M Deductible - see 9/1/08-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
xs $25M above 9/1/09
Steadfast Insurance Co. XPP9305496-06 Perils Insured - see above 23.33% of Deductible - see above 9/1/08-
$600M xs $100M 9/1/09
Lloyds (QBE) DP 662708 Perils Insured - see above 10% of $300M Deductible - see above 9/1/08-
xs $400M 9/109
Xxx Xxxxxxxxx 0993527 Perils Insured - see above 3.33% of $600M Deductible - see above 9/1/08-
xs $100M 9/1/09
AXIS Reinsurance RNB 728471-08 Perils Insured - see above 15% of $675M Deductible - see above 9/1/08-
Company xs $25M 9/1/09
TERRORISM LIABILITY
Lexington Insurance Co. 9407078 TRIA Co-Participation 9/1/08-
15% Reinsurance 9/1/10
(Co-participation) of TRIA
Captive policy limit of
$1,200,000,000:
$180,000,000 per occurrence
Captive's TRIA Single Event
Trigger
100% Reinsurance of TRIA
Trigger: $100,000,000 per
occurrence
Captive's TRIA Deductible
100% Reinsurance of TRIA
Deductible: $8,500,000 per
occurrence (Estimate)
International Terrorism
$100,000,000 per occurrence an
100% Reinsurance on Locations
outside the US: annual aggregate
PRIMARY CASUALTY
Travelers Property TC2JGLSA219T312708 General Liability $2,000,000 per $250,000 3/1/09-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
& Casualty occurrence/ 3/1/10
$25,0000,000
per aggregate
Travelers Property & XX0XXXX000X000000 AUTOMOBILE LIABILITY $3,000,000 3/1/09-
Casualty Combined $500,000 3/1/10
TC2JCAP201T637A08 Single Limit
Travelers Property & TC2HUB121D938808 WORKERS' COMPENSATION AND Workers' $500,000 3/1/09-
Casualty EMPLOYER'S LIABILITY Compensation: 3/1/10
TRJUB121D937608
Statutory
TWXJUB121D939A08
Employer's
Liability
$2,000,000
each accident
$2,000,000
each employee
$2,000,000
each policy
limit
UMBRELLA/EXCESS LIABILITY* (IN THE PROCESS OF RENEWING- EXPECTED COMPLETION 3/6/09)
AIG Illinois National 538 0744 Umbrella Liability 30M xs $30,000,000 $25,000 3/1/08-
Insurance Co primary casualty 3/1/09
AIG Cat Excess 9495175 Excess Liability $95,000,000 N/A 3/1/08-
$95M xs $30M 3/1/09
POLLUTION LEGAL LIABILITY
Greenwich Insurance PEC0008018 Pollution and Remediation Legal $50,000,000 1,000,000 12/15/08-
COMPANY POLICY# COVERAGE LIMITS DEDUCTIBLE PERIOD
----------------------- ------------------- ------------------------------- -------------- ----------------------- ------------
Insurance Company Liability 12/15/10
SCHEDULE 9
INTENTIONALLY OMITTED
SCHEDULE 10
SUBWAY ENTRANCE AREA DIAGRAM
(GRAPHIC)
(GRAPHIC)
SCHEDULE 11
THIRD-PARTY CONSENTS
1) New York City Industrial Development Authority
SCHEDULE 12
WARRANTIES
1) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 3, 2004
2) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 25, 2004
3) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 10, 2004
4) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 17, 2004
5) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 3, 2004
6) Trane, for the Xxxxxxx Xxxxxx Xx. X00X00000, effective August 3, 2004
7) Intentionally omitted.
8) Intentionally omitted.
9) Intentionally omitted.
10) Intentionally omitted.
11) Hilti's, copy of full service program that all tools are covered by
complete service and repair warranty for up to two years
12) The Metraflex Company, effective on date of shipment
13) X.X. Xxxxx Water Heaters, residential electric warranty, effective on the
date of sale
14) X.X. Xxxxx Water Heaters, residential gas warranty, effective on date of
purchase
15) American Standard, effective at time of initial purchase
16) Brasscraft Manufacturing Company, dated October 5, 2005
17) Kohler, effective on date of installation of plumbing products, steam
generator, water filtration, faucets, valves and cast iron
18) Xxxxx Plumbing Products, effective on the date of purchase or installation
whichever occurs first, dated September 1, 2007
19) Fiat Products, acrylic bathware, effective on the date of sale
20) Chicago Faucets, effective on the date of shipment
21) Victaulic Company of America
22) Xxxxx Regulator Company, effective on the date of original shipment
23) Charlotte Pipe and Foundry Co., effective on date of delivery
24) Xxxxxxx The Electric Heater Company, effective on start up date
25) SyncroFlo, Inc., effective on date of shipment
26) Goulds Pumps, effective on either the date of installation or date of
manufacture
27) ITT FLYGT, effective on date of shipment or startup (if within on year of
shipment)
28) D.V. Fyre-Tec, Inc., effective June 28, 2006
29) Intentionally omitted.
30) Lutron Electronics, effective on date of factory commissioning
31) MAC Products, Inc., effective on date of shipment to jobsite
32) Caterpillar, effective on date of delivery
33) Xxxxxxx Network Power, effective May 1, 2007
34) Intentionally omitted.
35) Heritage Mechanical Services, effective on date of completion of contract
work
36) Perma Pipe, effective on the date of completion of testing
37) Intentionally omitted.
38) Dri Steem Humidifier Company, effective on installation date
39) Liebert, effective on startup date
40) Xxxxxx Controls Inc., effective on date of shipment
41) Quincy Compressor, effective on date of factory shipment
42) Idex Corp., effective on date of startup
43) BFS Industries LLC, effective on date of startup
44) Pneumercator, effective on date of installation
45) Paco Pumps, effective on date of shipment
46) Tigerflow, effective on date of shipment
47) Amtrol Inc., effective on date of manufacture
48) Thrush Company Inc., effective on date of manufacture
49) Intentionally omitted.
50) Intentionally omitted.
51) Twin City Fan Companies, Ltd., effective on date of original installation
52) Xxxxx Look Company, effective on date of shipment
53) Xxxxxxxx, effective on date of shipment
54) Intentionally omitted.
55) Xxxxxx Xxxxxx Roofing Corp., effective March 20, 2008
56) Xxxxx Company Warranty #10087, dated June 5, 2008
SCHEDULE 13
PROPERTY MANAGEMENT AGREEMENTS
1) NYTC Facility Maintenance and Management Agreement, dated January 4, 2007,
made by and between NYT Real Estate Company LLC and First New York Partners
Management, LLC, as amended by that certain Amendment to an Agreement dated
May 1, 2008 and that certain Side Letter dated May 15, 2008
