Exhibit 10.1

 

AGREEMENT OF PURCHASE AND SALE

 

 

by and between

 

 

NYT REAL ESTATE COMPANY LLC,

 

a New York limited liability company,

 

as SELLER

 

and

 

620 EIGHTH NYT (NY) LIMITED PARTNERSHIP,

 

a Delaware limited partnership,

 

as BUYER

 

 

TABLE OF CONTENTS

 

ARTICLE I CERTAIN DEFINITIONS		1
ARTICLE II PURCHASE AND SALE OF PROPERTY		4
Section 2.1	Sale	4
ARTICLE III PURCHASE PRICE		5
Section 3.1	Purchase Price	5
ARTICLE IV TITLE		6
Section 4.1	Transfer	6
Section 4.2	Evidence of Transfer	6
ARTICLE V INTENTIONALLY OMITTED		6
ARTICLE VI BUYER’S REPRESENTATIONS AND WARRANTIES		6
Section 6.1	Representations and Warranties of Buyer	6
Section 6.2	Survival	7
ARTICLE VII BROKERS AND EXPENSES		8
Section 7.1	Brokers	8
Section 7.2	Expenses	8
ARTICLE VIII CLOSING		8
Section 8.1	Closing	8
Section 8.2	Closing Deliveries	8
Section 8.3	Prorations	12
Section 8.4	Indemnification	12
ARTICLE IX RISK OF LOSS AND INSURANCE PROCEEDS		12
Section 9.1	Casualty	12
Section 9.2	Condemnation	12
Section 9.3	Survival	12
ARTICLE X CONDITIONS TO CLOSING		13
Section 10.1	Conditions to Buyer’s Obligation to Close	13
Section 10.2	Conditions to Seller’s Obligation to Close	13
Section 10.3	Failure to Satisfy Conditions	13
ARTICLE XI MISCELLANEOUS		14
Section 11.1	Notices	14
Section 11.2	Entire Agreement	14

 

 

Section 11.3	Further Assurances	15
Section 11.4	Jury Trial Waiver	15
Section 11.5	No Merger	15
Section 11.6	Assignment	15
Section 11.7	Counterparts and Facsimile	15
Section 11.8	Governing Law; Consent to Jurisdiction	15
Section 11.9	Confidentiality	16
Section 11.10	Interpretation of Agreement	16
Section 11.11	General Rules of Construction	16
Section 11.12	Limited Liability	17
Section 11.13	Amendments	17
Section 11.14	Tax Treatment	17

 

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SCHEDULES
Schedule 4.2	Permitted Exceptions
EXHIBITS
Exhibit A-1	Severance Lease
Exhibit A-2	Legal Description
Exhibit B-1	Form of Lease Agreement
Exhibit B-2	Form of Lease Guaranty
Exhibit C	Form of Assignment and Assumption of Severance Lease
Exhibit D	Form of Bill of Sale and Assignment
Exhibit E	Settlement Statement and Disbursement Schedule
Exhibit F	FIRPTA Certificate
Exhibit G	Landlord’s Estoppel Certificate
Exhibit H	Condominium Estoppel Certificate
Exhibit I	Assumption Agreement
Exhibit J	Title Confirmation Letter
Exhibit K	IDA Consent, Subordination and Assumption Agreement
Exhibit L	Memorandum of Lease
Exhibit M	NYT Sublease Agreement
Exhibit N	Wrap Mortgage
Exhibit O	Wrap Mortgage Affidavits
Exhibit P	NYC Transit Authority Estoppel
Exhibit Q	Subordination of Management Agreement
Exhibit R	Assignment and Assumption of Management Agreement
Exhibit S	Seller Certificate
Exhibit T	Guarantor Certificate
Exhibit U	Side Letter re: purchase of loan
Exhibit V	Lessee Estoppel
Exhibit W	First Note
Exhibit X	First Mortgage
Exhibit Y	First Mortgage UCC-1
Exhibit Z	Wrap Mortgage UCC-1
Exhibit AA	Third Declaration to Severance Lease
Exhibit BB	Third Declaration to Declaration
Exhibit CC	New Severance Sublease
Exhibit DD	Assignment of New Severance Sublease
Exhibit EE	ESDC Mortgage Assignment
Exhibit FF	ESDC Wrap Mortgage Assignment
Exhibit GG	Release as to New Severance Sublease

 

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AGREEMENT OF PURCHASE AND SALE

 

THIS AGREEMENT OF PURCHASE AND SALE (“ Agreement ”) dated as of March 6, 2009 (the “ Effective Date ”), is by and between NYT REAL ESTATE COMPANY LLC, a New York limited liability company (“ Seller ”), and 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership (“ Buyer ”).

 

WITNESSETH:

 

WHEREAS, Seller is the owner of that certain Property defined herein; and

 

WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the Property on the terms and conditions set forth in this Agreement;

 

NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows.

 

ARTICLE I
CERTAIN DEFINITIONS

 

“ Additional Property ” is defined in Section 2.1(a)(ii).

 

“ Agreement ” means this Agreement of Purchase and Sale.

 

“ Apportioned Items ” is defined in Section 8.3(a).

 

“ Bill of Sale and Assignment ” is defined in Section 4.1(b).

 

“ Broker ” is defined in Section 7.1.

 

“ Building ” is defined in Section 2.1(b).

 

“ Buyer ” is defined in the introductory paragraph of this Agreement.

 

“ Buyer’s Closing Deliveries ” is defined in Section 8.2(b).

 

“ Buyer’s Default ” is defined in Section 3.1(b)(i).

 

“ Condominium ” is defined in Section 2.1(a)(i).

 

“ Condominium Act ” means Article 9-B of the Real Property Law of the State of New York.

 

 

“ Condominium Boards ” means the Condominium Board of Managers and the NYTC Condominium Board of Managers, as such terms are defined in the Condominium Declaration.

 

“ Condominium Declaration ” means that certain declaration, dated as of August 4, 2006 made by The New York Times Building LLC pursuant to the Condominium Act establishing condominium ownership of the Building and the Land, which declaration was recorded in the Register’s Office on August 15, 2006, as CRFN 2006000460293, as amended by that certain First Amendment to the Declaration, which First Amendment was dated as of January 29, 2007, and recorded in the Register’s Office on February 8, 2007 as CRFN 2007000075106, and further amended by that certain Second Amendment to the Declaration, which Second Amendment was dated October 11, 2007, and recorded in the Register’s Office on January 8, 2008 as CRFN 2008000008735, and further amended by that certain Third Amendment to the Declaration, which Third Amendment was dated March   , 2009, and is intended to recorded in the Register’s Office, including the By-Laws and Rules and Regulations thereunder.

 

“ Condominium Units ” is defined in Section 2.1(a)(i).

 

“ Closing ” is defined in Section 2.2(b).

 

“ Closing Date ” is defined in Section 8.1.

 

“ Effective Date ” is defined in the introductory paragraph of this Agreement.

 

“ Escrow Letter ” means an escrow letter delivered by the Buyer’s counsel to the Title Company on or before the Closing Date and acknowledged by the Seller and the Title Company.

 

“ ESDC ” means NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A/ EMPIRE STATE DEVELOPMENT CORPORATION.

 

“ Excluded Units ” is defined in Section 2.1(b)(iii).

 

“ Federal Code ” is defined in Section 8.2(a) (iv).

 

“ First Note ” means a promissory note to be entered into as of the Closing Date, between 620 EIGHTH LENDER NYT (NY) LIMITED PARTNERSHIP and Seller, in the form annexed hereto as Exhibit “W” .

 

“ First Mortgage ” means a mortgage to be entered into, and recorded with the Register’s Office, as of the Closing Date, among 620 EIGHTH LENDER NYT (NY) LIMITED PARTNERSHIP, ESDC and Seller with respect to the Property, in the form annexed hereto as Exhibit “X” .

 

“ Governmental Authority ” means any federal, state or local government, authority, agency or regulatory body.

 

“ Indemnified Party ” is defined in Section 7.1.

 

“ Intangible Property ” is defined in Section 2.1(a)(iii).

 

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“ Lease Agreement ” means a Lease Agreement to be entered into as of the Closing Date, between Buyer, as landlord, and Seller (“ Lease Back Tenant ”), as tenant, with respect to the Property, in the form annexed hereto as Exhibit “B-1” .

 

“ Lease Guaranty ” means a guaranty of the Lease Agreement to be executed and delivered by the guarantors identified therein at Closing in the form annexed hereto as Exhibit “B-2” .

 

“ Permitted Exceptions ” is defined in Section 4.2.

 

“ Person ” means an individual, partnership, joint venture, corporation, trust, unincorporated association, any other entity and any government or any department or agency thereof, whether acting in an individual, fiduciary or other capacity.

 

“ Property ” is defined in Section 2.1.

 

“ Proprietary Information ” means any written, oral, documentary or other information relating to the Transaction which is received by one party from the other party and is not publicly available, including, without limitation, (a) information relating to the ownership, condition, operation and/or financial performance of the Property, and (b) information relating to the terms and conditions on which Buyer is willing to enter into the Transaction and the terms on which Buyer is able to obtain financing with respect to the Transaction. Information shall not be deemed Proprietary Information if such information: (i) is already known to the receiving party without obligation of confidentiality, from a source other than the other party; (ii) is or hereafter becomes publicly known by the receiving party through no wrongful act, fault or negligence of the receiving party; (iii) is received by the receiving party without restriction and without breach of this or any other Agreement from a third party entitled to disclose it or (iv) is independently developed by the receiving party.

 

“ Purchase Price ” is defined in Section 3.1(a).

 

“ Real Property ” is defined in Section 2.1(a)(i).

 

“ Register’s Office ” means the New York County Office of the Register of The City of New York.

 

“ Seller ” is defined in the introductory paragraph of this Agreement.

 

“ Seller’s Closing Deliveries ” is defined in Section 8.2(a).

 

“ Seller’s Personal Property ” shall mean all furniture, furnishings equipment and other personal property of Seller, which includes, without limitation, inventory, racking, shelving, cabling, antennae, machinery, communication equipment, data cabinets, lockers, plug-in light fixtures, storage racks, trash compactors, signs, desks, movable partitions, vending machines, computer software and hardware, removable trade fixtures and equipment, even if bolted or otherwise affixed to the floors, including, without limitation, telecommunication switches, in each case, as now or may hereafter exist in or on any of the Building and any other personal property owned by Seller or a sublessee of Seller or other occupant of the Property; provided that in no case shall Seller’s Personal Property include fixtures or built-in heating, ventilating,

 

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air-conditioning, and electrical equipment (including power panels) to be utilized in connection with the operation of the Property.

 

“ Settlement Statement and Disbursement Schedule ” means a Settlement Statement and Disbursement Schedule to be entered into as of the Closing Date, between Buyer and Seller, in the form annexed hereto as Exhibit “E” .

 

“ Severance Lease ” is defined in Section 2.1(a)(i).

 

“ Title Company ” is defined in Section 4.1.

 

“ Title Confirmation Letter ” is defined in Section 4.2.

 

“ Title Policy ” is defined in Section 4.2.

 

“ Transaction ” means the transaction contemplated in this Agreement.

 

ARTICLE II
PURCHASE AND SALE OF PROPERTY

 

Section 2.1            Sale .  (a)  Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to purchase from Seller, subject to the terms and conditions set forth herein, the following:

 

(i)            all of Seller’s right, title and interest as lessee under that certain lease more particularly described in Exhibit “A-1” (the “ Severance Lease ”), including, without limitation, all of Seller’s right, title and interest in and to the leasehold condominium units (the “ Condominium Units ”) in The New York Times Building Condominium (the “ Condominium ”) more particularly described on Exhibit “A-2” annexed hereto and Seller’s undivided interest in the Condominium common elements appurtenant to the Condominium Units. The parcel of land on which the Condominium is located, as more particularly described in Exhibit “A-2” , is hereinafter called the “ Real Property ”, and the building in which the Condominium Units are located (i.e., 620 Eighth Avenue, New York, New York), together with all other structures and improvements situated on, or affixed or appurtenant to the Real Property, are collectively herein called the “ Building ”;

 

(ii)           all of Seller’s right, title and interest appurtenant to the Condominium Units in and to any fixtures, equipment and machinery affixed to the Building and used solely for the operation of the Building (such as, by way of example, HVAC, plumbing, electrical, mechanical and fire safety fixtures, machinery and equipment, fire safety equipment) (the “ Additional Property ”), but the Additional Property shall exclude the Seller’s Personal Property; and

 

(iii)          all of Seller’s right, title and interest appurtenant to the Condominium Units in and to (a) any assignable guaranties, warranties, certificates, rights and privileges relating to the Condominium Units or the Additional Property in effect on the Closing Date (as hereinafter defined), (b) any assignable licenses and permits relating to the Land, the Building or the Additional Property in effect on the Closing Date, (c) any drawings, plans or

 

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specifications relating to the Building or the Additional Property to the extent in Seller’s possession or control on the Closing Date, (d) any site plans, surveys, environmental reports, architectural renderings, engineering plans and studies and floor plans relating to the Land, the Building or the Additional Property to the extent in Seller’s possession or control on the Closing Date, and (e) all utility, service, maintenance and other similar contracts relating to the Land, the Building or the Additional Property in effect on the Closing Date (the “ Intangible Property ”).

 

(iv)          All of the items referred to in subparagraphs 2.1(a)(i), (ii), and (iii) above are collectively referred to as the “ Property .”

 

(b)           The term “ Property ” shall exclude the following:

 

(i)            Any existing cause of action, or damage claim, of or against Seller.

 

(ii)           All rights and interests of Seller with respect to any amounts due Seller with respect to the Property and arising prior to the Closing (including but not limited to, tax refunds, casualty or condemnation proceeds, utility deposits, rents or other income from the Property) to the extent attributable to periods prior to Closing.

 

(iii)          All rights and interests of Seller with respect to the condominium units comprising Floors 21 through 27 of the Building and their respective undivided interest in the Condominium common elements (the “ Excluded Units ”).

 

(iv)          Seller’s Personal Property.

 

(v)           All trademarks, tradenames, logos and other intellectual property rights relating to The New York Times Company and its subsidiaries and affiliates and/or related media groups.

 

(vi)          All right, title and interest of Seller in and to that certain (i) NYTC Facility Maintenance and Management Agreement relating to the Condominium Units and the Excluded Units between Seller and First New York Partners Management, LLC dated as of January 4, 2007, and (ii) that certain Management Agreement relating to the Excluded Units between Seller and First New York Partners Management, LLC dated as of April   , 2008.

 

ARTICLE III
Purchase Price

 

Section 3.1            Purchase Price .

 

(a)           The purchase price of the Property is TWO HUNDRED TWENTY-FIVE MILLION AND NO/100 ($225,000,000.00) DOLLARS (the “ Purchase Price ”).

 

(b)           The Purchase Price shall be deposited with the Title Company pursuant to the Escrow Letter and upon the closing be paid to or as directed by Seller in immediately available funds via wire transfer at the consummation of the purchase and sale contemplated hereunder (the “ Closing ”), subject to adjustment for interest and costs as provided for in accordance with the Settlement Statement and Disbursement Schedule.

 

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ARTICLE IV
TITLE

 

Section 4.1            Transfer. At the Closing, Seller shall:

 

(a)           assign to Buyer Seller’s interest in the Severance Lease by Assignment of Lease in the form of Exhibit “C” (the “ Severance Lease Assignment ”); and

 

(b)           convey to Buyer Seller’s interest in the Additional Property and Intangible Property by good and sufficient Bill of Sale and Assignment in the form of Exhibit “D” (the “ Bill of Sale and Assignment ”).

 

Section 4.2            Evidence of Transfer. Chicago Title Insurance Company, First American Title Insurance Company and/or Title Associates or any other title insurance company licensed to do business in New York acceptable to Buyer (the “ Title Company ”) shall issue, at the Closing, (i) an acknowledgment letter in the form attached hereto as Exhibit “J” (the “ Title Confirmation Letter ”) and (ii) its standard Mortgagee’s American Land Title Association Policy of Title Insurance (the “ Title Policy ”) in the amount of Two Hundred Fifty Million Dollars ($250,000,000) showing Buyer as first mortgagee, containing such endorsements as Buyer shall reasonably request and subject to no exceptions other than the following (“ Permitted Exceptions ”):

 

(a)           liens for local real estate taxes, PILOT and assessments not yet due and payable;

 

(b)           the exceptions set forth on Schedule 4.2 attached hereto; and

 

(c)           such other exceptions as Buyer has approved or waived in writing.

 

ARTICLE V
INTENTIONALLY OMITTED

 

ARTICLE VI
BUYER’S REPRESENTATIONS AND WARRANTIES

 

Section 6.1            Representations and Warranties of Buyer. Buyer represents and warrants to Seller that as of the date hereof and the Closing Date:

 

(a)           Buyer is a Delaware limited partnership, duly organized, validly existing and in good standing under the laws of Delaware and duly authorized to conduct business as a foreign entity in the State of New York. Buyer’s principal place of business is c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, 2nd Floor, New York, NY 10020.

 

(b)           Buyer has full power, authority and legal right to purchase the Property from Seller and execute and deliver this Agreement and the Lease Agreement, execute and deliver such instruments, documents and agreements as may be necessary or appropriate to effect the foregoing transactions, and perform and observe the terms and conditions of each of the documents described above.

 

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(c)           This Agreement and all other documents executed by Buyer which are to be delivered to Seller at the Closing (i) are or at the time of the Closing will be duly authorized, executed and delivered by Buyer, (ii) are or at the time of the Closing will be legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their terms, (iii) do not and at the time of Closing will not violate any of Buyer’s charter documents and (iv) 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 Buyer, 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 Buyer is a party or to which Buyer or the Property is subject.

 

(d)           Buyer 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 Buyer’s U.S. employer identification number is      80-0334693.

 

(e)           Neither Buyer nor any member of Buyer 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 Buyer or its affiliates are prohibited from transacting business.

 

(f)            Buyer has not commenced a voluntary case under Bankruptcy Law nor has there been commenced against Buyer an involuntary case under Bankruptcy Law, nor has Buyer consented to the appointment of a Custodian 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 Buyer or appoints a Custodian for Buyer or for all or any substantial part of Buyer’s property. The term “Bankruptcy Law” means the United States Bankruptcy Code, 11 U.S.C.A. §§ 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.

 

(g)           No authorizations, consents or approvals of or filings with any Governmental Authority or any other Person is required with respect to Buyer for the execution and delivery of this Agreement and the performance of its obligations hereunder.

 

Section 6.2            Survival. All representations and warranties of Buyer contained in Section 6.1 shall survive the Closing indefinitely.

 

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ARTICLE VII
BROKERS AND EXPENSES

 

Section 7.1            Brokers. The parties represent and warrant to each other that except for Cushman & Wakefield, Inc. (the “ Broker ”), whose commission shall be paid by Seller pursuant to separate written agreement upon the Closing, no broker or finder was instrumental in arranging or bringing about this transaction and that there are no claims or rights for brokerage commissions or finder’s fees in connection with the transactions contemplated by this Agreement. If any Person brings a claim for a commission or finder’s fee based upon any contact, dealings or communication with Buyer or Seller, then the party through whom such Person makes his claim shall defend the other party (the “ Indemnified Party ”) from such claim, and shall indemnify the Indemnified Party and hold the Indemnified Party harmless from any and all costs, damages, claims, liabilities or expenses (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by the Indemnified Party in defending against the claim except that the foregoing obligation to indemnify shall not apply to Buyer as to any claim by Broker. The provisions of this Section 7.1 shall survive the Closing.

 

Section 7.2            Expenses. All other closing costs shall be allocated to and paid by the applicable Person as provided for in accordance with the Settlement Statement and Disbursement Schedule. The provisions of this Section 7.2 shall survive the Closing.

 

ARTICLE VIII
CLOSING

 

Section 8.1            Closing. The Closing hereunder shall be held and delivery of all items to be made at the Closing under the terms of this Agreement shall be made at the offices of DLA Piper LLP (US), located at 1251 Avenue of the Americas, New York, New York 10020 or at such other place or in such other manner as the parties shall mutually agree, on March   , 2009 (the “ Closing Date ”). The Closing shall occur and Buyer’s funds shall be received by the Title Company on or before 5:00 p.m. E.S.T. on the Closing Date for disbursement in accordance with the terms of Section 3.1 .

 

Section 8.2            Closing Deliveries.

 

(a)           At or before the Closing, Seller shall deliver to Buyer the following items (collectively, the “ Seller’s Closing Deliveries ”):

 

(i)            the duly executed and acknowledged Severance Lease Assignment from the Seller;

 

(ii)           two (2) duly executed counterparts of the Bill of Sale and Assignment;

 

(iii)          two (2) duly executed counterparts of the Lease Agreement from the Seller;

 

(iv)          two (2) duly executed counterparts of the Lease Guaranty executed by the guarantors thereunder;

 

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(v)           a duly executed Settlement Statement and Disbursement Schedule executed by the Seller;

 

(vi)          the duly executed and acknowledged First Note;

 

(vii)         the duly executed and acknowledged First Mortgage, as recorded with the Register’s Office;

 

(viii)        a duly executed affidavit pursuant to Section 1445(b)(2) of the United States Internal Revenue Code of 1986, as amended (the “ Federal Code ”) in the form attached hereto as Exhibit “F” , executed by the Seller and on which Buyer is entitled to rely, that Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Federal Code;

 

(ix)           a duly executed and acknowledged title affidavit executed by the Seller in form reasonably required by the Title Company;

 

(x)            a duly executed and acknowledged estoppel certificate from the lessor under the Severance Lease in the form attached hereto as Exhibit “G” ;

 

(xi)           a duly executed and acknowledged estoppel certificate from the Condominium Boards in the form attached hereto as Exhibit “H” ;

 

(xii)          two (2) duly executed and acknowledged counterparts of an assumption agreement executed by the Seller in the form attached hereto as Exhibit “I” ;

 

(xiii)         a duly executed and acknowledged consent, subordination and assumption agreement executed by the parties thereunder in the form attached hereto as Exhibit “K” ;

 

(xiv)        two (2) duly executed and acknowledged counterparts of a memorandum of lease executed by the Seller in the form attached hereto as Exhibit “L” ;

 

(xv)         a duly executed and acknowledged sublease agreement executed by the Seller and The New York Times Company in the form attached hereto as Exhibit “M” ;

 

(xvi)        a duly executed and acknowledged wrap mortgage executed by the Seller and ESDC in the form attached hereto as Exhibit “N” ;

 

(xvii)       two (2) duly executed and acknowledged counterparts of the affidavits in the form attached hereto as Exhibit “O” ;

 

(xviii)      a duly executed and acknowledged estoppel from the NYC Transit Authority in the form attached hereto as Exhibit “P” ;

 

(xix)         a duly executed and acknowledged subordination of management agreement executed by the parties thereunder (except for the Buyer) in the form attached hereto as Exhibit “Q” ;

 

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(xx)          a duly executed and acknowledged assignment and assumption of management agreement executed by the parties thereunder (except for the Buyer) in the form attached hereto as Exhibit “R” ;

 

(xxi)         two (2) duly executed and acknowledged counterparts of the seller certificate in the form attached hereto as Exhibit “S” ;

 

(xxii)        two (2) duly executed and acknowledged counterparts of the guarantor’s certificate executed by the parties thereunder in the form attached hereto as Exhibit “T” ;

 

(xxiii)       a duly executed letter of credit in the form and substance required by the Lease Agreement;

 

(xxiv)       two (2) duly executed and acknowledged counterparts of the side letter re: purchase of loan in the form attached hereto as Exhibit “U” ;

 

(xxv)        a duly executed opinion of the Seller’s counsel issued in connection with the Transactions in the form required by the Buyer;

 

(xxvi)       UCC-1 Financing Statements from the Seller to 620 EIGHTH LENDER NYT (NY) LIMITED PARTNERSHIP in the form attached hereto as Exhibit “Y” ;

 

(xxvii)      UCC-1 Financing Statements from the Seller to the Buyer in the form attached hereto as Exhibit “Z” ;

 

(xxviii)     a duly executed and acknowledged counterpart of the third amendment to the Severance Lease executed by the parties thereunder in the form attached hereto as Exhibit “AA” ;

 

(xxix)       a duly executed and acknowledged counterpart of the third amendment to the Condominium Declaration executed by the parties thereunder in the form attached hereto as Exhibit “BB” ;

 

(xxx)        a duly executed and acknowledged counterpart of the new severance sublease executed by the parties thereunder in the form attached hereto as Exhibit “CC” ;

 

(xxxi)       a duly executed and acknowledged counterpart of the assignment of new severance sublease executed by the parties thereunder in the form attached hereto as Exhibit “DD” ;

 

(xxxii)      a duly executed and acknowledged counterpart of the assignment executed by ESDC in the form attached hereto as Exhibit “EE” ;

 

(xxxiii)     a duly executed and acknowledged counterpart of the assignment executed by ESDC in the form attached hereto as Exhibit “FF” ;

 

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(xxxiv)     a duly executed and acknowledged counterpart of the release as to the new severance sublease executed by 42DP in the form attached hereto as Exhibit “GG” ; and

 

(xxxv)      the New York City Department of Finance Real Property Transfer Tax Return (the “ RPT Return ”) and the New York State Combined Real Estate Transfer Tax Return and Credit Line Mortgage Certificate (the “ Form TP-584 ”), each claiming an exemption from transfer taxes on the basis of the transaction constituting a conveyance to secure a debt or other obligation, duly executed by Seller.

 

(b)           At or before the Closing, Buyer shall deliver to Seller the following items (collectively, the “ Buyer’s Closing Deliveries ”):

 

(i)            funds necessary to pay the Purchase Price;

 

(ii)           two (2) duly executed counterparts of the Severance Lease Assignment executed by the Buyer;

 

(iii)          two (2) duly executed counterparts of the Lease Agreement executed by the Buyer;

 

(iv)          a duly executed counterpart of the Settlement Statement and Disbursement Schedule executed by the Buyer;

 

(v)           two (2) duly executed and acknowledged counterparts of an assumption agreement executed by the Buyer in the form attached hereto as Exhibit “I” ;

 

(vi)          two (2) duly executed and acknowledged counterparts of a memorandum of lease executed by the Buyer in the form attached hereto as Exhibit “L” ;

 

(vii)         a duly executed and acknowledged subordination of management agreement executed by the Buyer in the form attached hereto as Exhibit “Q” ;

 

(viii)        a duly executed and acknowledged assignment and assumption of management agreement executed by the Buyer in the form attached hereto as Exhibit “R” ;

 

(ix)           two (2) duly executed and acknowledged counterparts of the lessee estoppel in the form attached hereto as Exhibit “V” ; and

 

(x)            the RPT Return and Form TP-584, duly executed by Buyer.

 

(c)           Buyer and Seller shall each deliver to one another, and to the Title Company as appropriate, such other instruments as are reasonably required by the Title Company or otherwise required to consummate the purchase and sale of the Property in accordance with the terms hereof.  Buyer and Seller hereby designate Title Company as the “Reporting Person” for the transaction pursuant to Section 6045(e) of the Federal Code and the regulations promulgated thereunder.

 

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Section 8.3            Prorations.

 

(a)           The parties acknowledge that, pursuant to the Lease Agreement, from and after the Closing Date, Lease Back Tenant will be responsible for all income of whatever nature earned from or with respect to the Property (other than rentals under the Lease Agreement) and for the payment of all real property taxes, assessments, insurance premiums, utility charges and all other items customarily apportioned in sales of real property in the jurisdiction in which the Property is located (the “ Apportioned Items ”).  In consideration of the foregoing, no provision shall be made at Closing with respect to the apportionment of any Apportioned Item.

 

(b)           The provisions of this Section 8.3 shall survive the Closing.

 

Section 8.4            Indemnification.  Seller agrees to indemnify, defend and hold the Buyer Indemnified Parties harmless from any liability, claim, loss, expense or damage suffered or asserted by any person or entity against such Buyer Indemnified Parties that arises from any act or omission of Seller or its agents, employees or contractors in connection with ownership or operation of the Property occurring, or arising, or accruing on or before the Closing.  The indemnification set forth in this Section 8.4 shall survive the Closing.

 

ARTICLE IX
RISK OF LOSS AND INSURANCE PROCEEDS

 

Section 9.1            Casualty.   Risk of loss to the Improvements or any part thereof from damage or destruction by fire or other casualty shall remain upon Seller until the Closing.  Seller shall give Buyer timely notice of the occurrence of damage or destruction of any portion of the Condominium Units.  In the event the Condominium Units are destroyed or damaged by fire or other casualty prior to the Closing, this Agreement shall, at the election of either party, be terminated, and neither party shall have any further rights or obligations hereunder except as provided in those Sections which expressly survive the termination of this Agreement.  In the event neither party shall terminate this Agreement, Seller agrees to pay to Buyer at the Closing all insurance proceeds which Seller has received as a result of the same, if any, and assign to Buyer all insurance proceeds payable as a result of the same without Seller replacing or repairing such damage.

 

Section 9.2            Condemnation.   Seller shall give Buyer notice of the occurrence prior to the Closing of the commencement of condemnation proceedings affecting, any portion of the Condominium Units.  In the event that all or any portion of the Condominium Units is the subject of any commencement of condemnation proceedings prior to the Closing, then either party may, at its option, terminate this Agreement.  If either elects to terminate this Agreement, then this Agreement shall terminate and neither party shall have any further rights or obligations hereunder except as provided in those Sections which expressly survive the termination of this agreement.  If the awards have not been collected as of the Closing, then such awards shall be assigned to Buyer, and Buyer shall not receive any credit against the Purchase Price with respect to such awards.

 

Section 9.3            Survival.   The provisions of this Article IX shall survive the Closing.

 

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ARTICLE X
CONDITIONS TO CLOSING

 

Section 10.1         Conditions to Buyer’s Obligation to Close.   The obligation of Buyer to acquire the Property on the Closing Date shall be subject to the satisfaction or written waiver of the following conditions precedent on and as of the Closing Date:

 

(a)           Seller’s Performance.   Seller shall have performed all covenants and obligations required by this Agreement to be performed or delivered by it on or before the Closing Date.

 

Seller’s Closing Deliveries.   Seller shall have delivered all of Seller’s Closing Deliveries.

 

(b)           Title Policy.   The Title Company shall be unconditionally obligated and prepared, and record (as applicable) of all conveyance documents, to issue the Title Policy and the Title Confirmation Letter.

 

Section 10.2         Conditions to Seller’s Obligation to Close. The obligation of Seller to convey and transfer to Buyer the Property on the Closing Date is subject to the satisfaction or written waiver of the following conditions precedent on and as of the Closing Date:

 

(a)           Representations and Warranties of Buyer.   The representations and warranties of Buyer set forth in Section 6.1 shall be true, complete and correct in all material respects on and as of the Effective Date and on and as of the Closing Date.

 

(b)           Buyer’s Performance. Buyer shall have performed all covenants and obligations required by this Agreement to be performed or delivered by it on or before the Closing Date, including, without limitation, delivery of the Purchase Price.

 

(c)           Buyer’s Closing Deliveries.   Buyer shall have delivered to the Title Company all of Buyer’s Closing Deliveries.

 

Section 10.3         Failure to Satisfy Conditions .

 

(a)           Buyer’s Obligations to Close.   If any of the conditions to Buyer’s obligation to close set forth in Section 10.1 is not satisfied on or prior to the Closing Date, Buyer shall have the right to:  (i) terminate this Agreement or (ii) consummate the purchase of the Property with no reduction in the Purchase Price and without any further liability of Seller on account of such conditions to close having been satisfied.

 

(b)           Seller’s Obligations to Close .  If any of the conditions to Seller’s obligation to close set forth in Section 10.2 is not satisfied on or prior to the Closing Date, Seller shall have the right to:  (i) terminate this Agreement or (ii) consummate the sale of the Property with no reduction in the Purchase Price and without any further liability of Buyer on account of such conditions to close having been satisfied.

 

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ARTICLE XI
MISCELLANEOUS

 

Section 11.1         Notices.   Any notices required or permitted to be given hereunder shall be given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, or (c) by a commercial national overnight courier that guarantees next day delivery and provides a receipt, and such notices shall be addressed as follows:

 

To Buyer:	620 Eighth NYT (NY) Limited Partnership
	c/o W.P. Carey & Co. LLC
	50 Rockefeller Plaza
	New York, New York 10020
	Attn: Jason Fox
With a copy to:	Reed Smith LLP
	599 Lexington Avenue, 29th Floor
	New York, New York 10022
	Attn: Joseph M. Marger, Esq.
To Seller:	NYT Real Estate Company LLC
	c/o The New York Times Company
	620 Eighth Avenue
	New York, New York 10018
	Attention: R. Anthony Benten
With a copy to:	NYT Real Estate Company LLC
	c/o The New York Times Company
	620 Eighth Avenue
	New York, New York 10018
	Attention: Kenneth A. Richieri, General Counsel
And to:	DLA Piper LLP (US)
	1251 Avenue of the Americas
	New York, New York 10022
	Phone No.: (212) 335-4610
	Fax No.: (212) 884-8600
	Attn: Martin D. Polevoy, Esq.

 

or to such other address as either party may from time to time specify in writing to the other party.  Any notice shall be deemed delivered when actually delivered, if such delivery is in person, upon deposit with the U.S. Postal Service, if such delivery is by certified mail, upon deposit with the overnight courier service, if such delivery is by an overnight courier service, and upon transmission, if such delivery is by telefacsimile or telecopy.

 

Section 11.2         Entire Agreement.   This Agreement, together with the Schedules and Exhibits attached hereto, contain all representations, warranties and covenants made by Buyer

 

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and Seller and constitute the entire understanding between the parties hereto with respect to the subject matter hereof.  Any prior correspondence, memoranda or agreements are replaced in total by this Agreement together with the Exhibits hereto.

 

Section 11.3         Further Assurances.   The parties hereby agree to (i) take such additional actions and to execute and deliver such additional documents as shall be necessary to consummate the transaction contemplated herein and (ii) execute, deliver, record and furnish such documents as may be necessary to correct any errors of a typographical nature or inconsistencies which may be contained in this Agreement.  The provisions of this Section 11.3 shall survive the Closing.

 

Section 11.4         Jury Trial Waiver.  The parties hereby agree to waive any right to trial by jury with respect to any action or proceeding brought by either party or any other Person, relating to (A) this Agreement and/or any understandings or prior dealings between the parties hereto, or (B) the Property or any part thereof.  The parties hereby acknowledge and agree that this Agreement constitutes a written consent to waiver of trial by jury pursuant to any applicable state statutes.

 

Section 11.5         No Merger.   The obligations contained herein shall not merge with the transfer of title to the Property but shall remain in effect until fulfilled.

 

Section 11.6         Assignment.   Buyer’s rights and obligations hereunder shall not be assignable without the prior written consent of Seller, in its sole discretion.  Notwithstanding the foregoing, Buyer shall have the right to assign its rights and obligations hereunder to any of its wholly-owned, single-purpose bankruptcy remote affiliates with the prior written consent of Seller, such consent not to be unreasonably withheld.  No such assignment shall relieve Buyer of liability hereunder.  Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

 

Section 11.7         Counterparts and Facsimile.   This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.  The parties contemplate that they may be executing counterparts of this Agreement transmitted by facsimile or electronically and agree and intend that a signature by facsimile machine or transmitted electronically shall bind the party so signing with the same effect as though the signature were an original signature.

 

Section 11.8         Governing Law; Consent to Jurisdiction.

 

(a)           Each of Seller and Buyer hereby agree that the State of New York 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 Agreement and the obligations arising hereunder shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and performed therein (without regard to its conflict of laws principles) and all applicable law of the United States of America.  To the fullest extent permitted by law, both parties hereby unconditionally and irrevocably waive any claim to assert that the law of any other jurisdiction governs this Agreement.

 

15

 

(b)           Any legal suit, action or proceeding against either party arising out of or relating to this Agreement may be instituted in any federal or state court sitting in the State of New York, and each party waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding in the State of New York, and each party hereby expressly and irrevocably submits to the exclusive jurisdiction of any such court in the State of New York in any suit, action or proceeding.

 

Section 11.9         Confidentiality.   Prior to the Closing, Buyer and Seller shall each maintain as confidential any and all Proprietary Information obtained in connection with the Transaction and, accordingly, each party agrees not to disclose all or any portion of such Proprietary Information to any third party for any reason.  Each item of Proprietary Information shall be used by the recipient thereof solely for the purpose of evaluating and determining such recipient’s interest in consummating the Transaction.  Each party agrees that it will not make copies of, or permit any other person to make copies of, the Propriety Information for any reason.  Each party agrees that it will not retain any item if Propriety Information after the use thereof is no longer required, and that it will either destroy or return to the other party all written materials constituting Propriety Information, except to the extent that such destruction is prohibited by law, rule or regulation.  Notwithstanding the foregoing, neither party will be required to destroy or return any Proprietary Information that may be stored electronically in such party’s information technology system, whether in the form of an e-mail, saved file or otherwise.  Notwithstanding anything to the contrary contained herein, each party shall be permitted to disclose any or all of the Proprietary Information to:  (i) those principals, employees, representatives, lenders, consultants, counsel, accountants and other professional advisors of such party who have a legitimate need to review or know such Proprietary Information and who have, prior to disclosure, agreed in writing to be bound by the terms of confidentiality set forth herein; and (ii) any government or self-regulatory agency whose supervision or oversight such party or any of its affiliates may be subject, in each case to the extent reasonably necessary to comply with any legal, fiduciary or regulatory requirement to which such party or its affiliates may be subject.  In addition, at or prior to the Closing, neither party shall issue any press release or other public announcement regarding this transaction without first obtaining the other party’s written approval with respect to the release or announcement and the content thereof.  After the Closing, Buyer and Seller shall be permitted to make such disclosures regarding the Property and the subject transaction as are similar or consistent with Buyer’s and Seller’s respective general public disclosure policy, including disclosures made by Buyer and its affiliates to their investors, lenders and analysts.  This provision shall survive the Closing, or, if the Transaction is not consummated, beyond the termination of this Agreement.

 

Section 11.10       Interpretation of Agreement.   The article, section and other headings of this Agreement are for convenience of reference only and shall not be construed to affect the meaning of any provision contained herein.  Where the context so requires, the use of the singular shall include the plural and vice versa and the use of the masculine shall include the feminine and the neuter.

 

Section 11.11       General Rules of Construction.  The parties acknowledge that this Agreement has been freely negotiated by both parties, that each party has had the opportunity to review and revise this Agreement, that each party has had the opportunity to consult with counsel

 

16

 

with regard to this Agreement, and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any amendments or exhibits to this Agreement.

 

Section 11.12       Limited Liability.   Any claim based on or in respect of any liability of Seller under this Agreement shall be enforced only against Seller and its assets, properties and funds, and not against the assets, properties or funds of any of its trustees, officers, managers, directors, members or shareholders, partners, principals, parent companies or affiliates or advisors, or any employees or agents of Seller or any of the foregoing entities.  Any claim based on or in respect of any liability of Buyer under this Agreement shall be enforced only against Buyer and its assets, properties and funds, and not against the assets, properties or funds of any of its trustees, officers, managers, directors, members or shareholders, partners, principals, parent companies or affiliates or advisors, or any employees or agents of Buyer or any of the foregoing entities.

 

Section 11.13       Amendments.   This Agreement may be amended or modified only by a written instrument signed by Buyer and Seller.

 

Section 11.14       Tax Treatment.   (a)  Notwithstanding any other provision of this Agreement, the parties hereto hereby agree that it is the intent of the parties to create, and the Lease Agreement shall be treated as, a financing lease in accordance with the terms of this Section 11.14 from the Closing Date up to the Option Lapse Date (as defined in the Lease Agreement) and thereafter as a true lease in accordance with the terms of Paragraph 33 thereof.  Buyer and Seller acknowledge and agree that commencing as of the Closing Date and continuing until the Option Lapse Date each of Buyer and Seller shall treat the transactions pursuant to this Agreement, together with the transactions pursuant to the Lease Agreement and the Security Documents (as defined in the Lease Agreement), for all accounting and federal, state and local tax purposes (including, without limitation, income taxes) as a loan by Buyer to Seller in the amount of the Acquisition Cost (as defined in the Lease), and not as a sale and leaseback of the Property.  Consistent with the immediately preceding sentence, Buyer and Seller acknowledge and agree that for all accounting and federal, state and local tax purposes (a) Seller shall be treated as the beneficial owner of the Property and the Additional Property and the Intangible Property (subject to Buyer’s secured interest therein), and eligible to claim depreciation and amortization deductions with respect to the Property under Section 167 or 168 of the Internal Revenue Code of 1986, as amended (the “Code”); (b) the Basic Rent (as defined in the Lease Agreement) and any Supplemental Rent (as defined in the Lease Agreeemnt) shall be treated as interest expense of Seller and interest income of Buyer, (c) Buyer and Seller shall treat the Option Price (as defined in the Lease Agreement), if paid, as (i) a repayment of loan principal up to the amount of the Acquisition Cost and (ii) interest expense of Seller and interest income of Buyer to the extent the Option Price exceeds the Acquisition Cost and such interest income and interest expense shall be accrued as original issue discount and included in income by the Buyer and as an expense by the Seller in accordance with Code Sections 1272 et seq; and Seller agrees to prepare the applicable Form 1099-OID reports in accordance with such OID Schedule.  Buyer and Seller agree that (x) as soon as practicable after the execution and delivery of this Agreement, they shall use commercially reasonable efforts and reasonably cooperate to create and agree upon a schedule (the “ OID Schedule ”) that will set forth in detail the amounts of accrued interest income and expense arising from the original issue discount described in the

 

17

 

immediately preceding sentence, and (y) in the event of any dispute between the Buyer and Seller with respect to the calculation of the amounts to be set forth in the schedule as described in clause (x) above, then an independent accounting firm engaged by the Seller shall settle such dispute and determine such amounts and such determination of such firm shall be final and binding upon Buyer and Seller.  For the period up to the Option Lapse Date Buyer and Seller agree to prepare all financial statements and file all federal, state and local income tax returns and reports in a manner consistent with the provisions of Paragraph 33(a) of the Lease Agreement and shall not take any position inconsistent with the provisions of such Paragraph 33(a) with any income tax or other governmental authority; provided that nothing in this Agreement shall be deemed to constitute a guaranty, warranty or representation by either Buyer or Seller as to the proper treatment of the transactions under the Lease Agreement or this Agreement for any income tax purpose or any other purpose.

 

(b)           From and after the Option Lapse Date, (i) the financing lease treatment of this Agreement and the Lease Agreement as described in Paragraph 33(a) thereof shall be of no further force or effect and Buyer and Seller each expressly acknowledge and agree that effective as of the Option Lapse Date each shall treat this transaction as a true lease for all accounting and federal, state and local income tax purposes (and shall report this transaction as a lease for Federal income tax purposes) and (ii) for federal income tax purposes each shall report this Agreement as a true lease with Buyer as the owner of the Property and Equipment (as defined in the Lease Agreement) and Seller as the lessee of such Property and Additional Property and Intangibles including: (1) treating Buyer as the owner of the property eligible to claim depreciation deductions with respect to the Property and Additional Property and the Intangible Property under the Code, (2) Seller reporting its Rent (as defined in the Lease Agreement) payments as rent expense under Section 162 of the Code, and (3) Buyer reporting the Rent payments as rental income; provided that nothing in this Agreement shall be deemed to constitute a guaranty, warranty or representation by either Buyer or Seller as to the proper treatment of this transaction for state law purposes and for federal income tax purposes.

 

(c)           If at any time this Agreement or the Lease Agreement is determined to be or is recharacterized as a true lease, irrespective of the intent of the parties hereto, by any State or local taxing authority, then to the extent any real property transfer taxes are determined by such authorities to be due, then all such transfer taxes, together with any interest and penalties thereon, shall be paid by Seller, and if same are not timely paid, Buyer may pay same and Seller shall reimburse Buyer for such amount, together with interest thereon at the Default Rate (as defined in the Lease Agreement) from the date paid by Buyer until repaid by Seller, as Additional Rent hereunder.

 

(d)           In the event of any conflict between the terms of this Section 11.14 and the terms of Paragraph 33 of the Lease Agreement, the terms of Paragraph 33 of  the Lease Agreement shall prevail.

 

 

[Signature Page Follows]

 

18

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the respective dates written below.

 

	SELLER :		NYT REAL ESTATE COMPANY LLC
			By:	/s/ Kenneth A. Richieri
			Name:  Kenneth A. Richieri
			Title:    Manager
	BUYER :	620 EIGHTH NYT (NY) LIMITED PARTNERSHIP
		By:	620 EIGHTH GP NYT (NY) LLC
		By:	CPA:17 LIMITED PARTNERSHIP
		By:	CORPORATE PROPERTY ASSOCIATES 17-GLOBAL INCORPORATED
		By:	/s/ Jason E. Fox
			Name: Jason E. Fox
			Title: Executive Director

 

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SCHEDULE 4.2

 

Permitted Exceptions

 

1.                                                    State of facts shown on survey by Earl B. Lovell- S.P. Belcher, Inc., dated 9/15/2007 and brought to date by visual examination by Roland K. Link, Land Surveyor, on 12/11/2008.

 

2.                                                    Terms, Provisions, Covenants and Restrictions in Declaration of Covenants and Restrictions made by New York State Urban Development Corporation dated as of 6/21/1988 and recorded 4/20/1990 in Reel 1686, Page 1.

 

a)                                       Amendment to the Declaration of Covenants and Restrictions made by New York State Urban Development Corporation d/b/a Empire State Development Corporation dated as of 7/10/1996 and recorded 8/8/1996 in Reel 2354 Page 437.

 

b)                                      Unrecorded Amendment dated as of 12/13/1996.

 

c)                                       Second Amendment to the Declaration of Covenants and Restrictions made by New York State Urban Development Corporation d/b/a Empire State Development Corporation dated as of 6/30/1998 and recorded 11/4/1998 in Reel 2744 Page 241.

 

d)                                      Third Amendment to the Declaration of Covenants and Restrictions made by New York State Urban Development Corporation d/b/a Empire State Development Corporation dated as of 12/1/2000, recorded 3/13/2001 in Reel 3250 Page 1618.

 

e)                                       Fourth Amendment to the Declaration of Covenants and Restrictions made by New York State Urban Development Corporation d/b/a Empire State Development Corporation dated as of 12/1/2000, recorded 3/13/2001 in Reel 3250 Page 1752.

 

3.                                                    Terms, Provisions, Covenants and Restrictions in Declaration of Covenants and Restrictions made by NEW YORK STATE URBAN DEVELOPMENT CORPORATION dated of June 21, 1988, recorded April 20, 1990 in Reel 1686 Page 383.

 

4.                                                    Terms and conditions of Site 8 South Land Acquisition and Development Agreement by and among NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION, 42ND ST. DEVELOPMENT PROJECT, INC. and THE NEW YORK TIMES BUILDING LLC (“LADA”), recorded 10/24/2003 as CRFN 2003000433119 as amended by CRFN 2003000433120.

 

5.                                                    Terms and conditions of Site 8 South Declaration of Design, Use and Operation by NEW YORK STATE URBAN DEVELOPMENT CORPORATION, d/b/a EMPIRE STATE DEVELOPMENT CORPORATION and 42ND ST. DEVELOPMENT PROJECT, INC. (“DUO”), recorded 10/24/2003 as CRFN 2003000433121.

 

6.                                                    Terms and conditions of Site 8 South Project Agreement by and among NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION, 42ND ST. DEVELOPMENT PROJECT, INC., THE NEW YORK TIMES BUILDING LLC, NYT REAL ESTATE COMPANY LLC and FC LION LLC

 

20

 

(“Project Agreement”), recorded 10/24/2003 as CRFN 2003000433116.

 

7.                                                    Terms, Covenants, Conditions and Reversionary Rights contained in Deeds dated 9/8/2003 and recorded 10/24/2003 as CRFN 2003000433117 and CRFN 2003000433118.

 

8.                                                    Terms, Conditions and Provisions in Lease, as evidenced by Memorandum of Agreement of Lease, including an Option to Purchase, between 42ND ST. DEVELOPMENT PROJECT, INC. and THE NEW YORK TIMES BUILDING LLC, dated 12/12/2001, recorded 10/24/2003 as CRFN 2003000433122.

 

a)                                       Letter Agreement dated 4/8/2004 (as cited in Lease Assignment made by and between The New York Times Building LLC and 42nd St. Development Project, Inc. under CRFN 2006000644732).

 

b)                                      Lease Assignment (Assignment and Assumption Agreement) made by and between The New York Times Building LLC (assignor) and 42nd St. Development Project, Inc.(assignee) dated as of 8/15/2006, recorded 11/20/2006 as CRFN 2006000644732.

 

c)                                       Amended and Restated Agreement of Lease by and between 42nd St. Development Project, Inc. (landlord) and 42nd St. Development Project, Inc. (tenant) dated as of 8/15/2006, 11/20/2006 as CRFN 2006000644736 and further amended by CRFN 2007000100154 .

 

9.                                                    Easement Agreement between THE NEW YORK TIMES BUILDING LLC, THE NEW YORK CITY TRANSIT AUTHORITY, 42ND ST. DEVELOPMENT PROJECT, INC. and THE CITY OF NEW YORK dated 12/12/2001, recorded 10/24/2003 as CRFN 2003000433126.

 

10.                                              The Condominium Declaration.

 

21

 

EXHIBIT A-1

SEVERANCE LEASE

 

Agreement of Sublease dated as of December 12, 2001 between The New York Times Building LLC, a New York limited liability company (“ NYTB ”), as landlord, and NYT Real Estate Company LLC, a New York limited liability company, a memorandum of which was recorded in the Office of the City Register of the City of New York on October 24, 2003 as CRFN 2003000433125, as amended by NYTB’s interest in which Agreement of Sublease as landlord was assigned by Assignment and Assumption Agreement dated as of August 15, 2006 to 42nd St. Development Project, Inc. (“ 42DP ”), as landlord, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644732, which Agreement of Sublease was amended pursuant to First Amendment to Agreement of Sublease (NYT) dated as of August 15, 2006 between 42DP and Mortgagor and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644735 and by Second Amendment to Agreement of Sublease (NYT) dated as of January 29, 2007 between 42DP and Mortgagor and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100157 and by Third Amendment to Agreement of Sublease (NYT) dated on or about the date of this Mortgage between 42DP and Mortgagor and intended to be recorded in the Office of the City Register of the City of New York (such Agreement of Sublease, as so assigned and amended, the “ Severance Lease ”).

 

 

EXHIBIT A-2

 

LEGAL DESCRIPTION

 

The Condominium Units (in the Building located at and known as THE NEW YORK TIMES BUILDING CONDOMINIUM and by Street Number 620-628 8TH AVENUE, NEW YORK, NEW YORK), 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 February 8, 2007 as CRFN 2007000075106, Second Amendment to Declaration dated October 11, 2007 and recorded January 8, 2008 as CRFN 2008000008734, Third Amendment to Declaration dated March 6, 2009 and to be recorded with the Register, and Fourth Amendment to Declaration, dated as of March 6, 2009, and to be recorded with the Register, subject to receipt of the City Survey’s stamp on the amended floor plans (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 Daniel Kaplan, 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 West 40th Street 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 8th Avenue with the southerly line of West 41st Street;

 

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 West 40th Street;

 

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.

 

 

SCHEDULE OF UNITS

 

UNIT DESIGNATION		TAX LOT		PERCENTAGE INTEREST IN COMMON ELEMENTS
0-A		1001		0.6627	%
1- A		1003		2.0132	%
1-E		1007		0.0691	%
2-A		1009		4.7805	%
3-A		1010		4.7579	%
4-A		1011		4.5636	%
5-A		1012		1.6352	%
6-A		1013		1.7325	%
7-A		1014		1.7325	%
8-A		1015		1.7325	%
9-A		1016		1.7325	%
10-A		1017		1.7325	%
11-A		1018		1.7325	%
12-A		1019		1.7325	%
13-A		1020		1.7325	%
14-A		1021		1.7440	%
15-A		1022		1.3998	%
16-A		1023		1.7484	%
17-A		1024		1.7207	%
18-A		1025		1.7711	%
19-A		1026		1.7711	%
20-A		1027		1.7711	%
28-A		1035		0.4446	%

 

 

EXHIBIT B-2

 

FORM OF LEASE GUARANTY

 

GUARANTY AND SURETYSHIP AGREEMENT

 

THIS GUARANTY AND SURETYSHIP AGREEMENT (this “ Guaranty ”), dated as of the            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 ”).

 

W   I   T   N   E   S   S   E   T   H  :

 

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 620 Eighth Avenue New York, New York (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 EDGAR 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)  nytimes.com 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 nytimes.com , and all licenses and web addresses, is held by Guarantor either directly through its divisions such as, The New York Times News Services, nytimes.com, 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. Carey & Co. LLC,

 

 

50 Rockefeller Plaza, 2nd Floor, New York, New York 10020, to the attention of Director, Asset Management, and notices to Tenant shall be sent c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018 to the attention of General Counsel and CEO (in separate envelopes) and shall simultaneously be given by Landlord to DLA Piper LLP, 1251 Avenue of the Americas, New York, New York, 10020 Attention:  Martin D. Polevoy, Esq. A copy of any notice given by Tenant to Landlord shall simultaneously be given by Tenant to Reed Smith LLP, 599 Lexington Avenue, 29 th  Floor, New York, New York, 10022, 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 § 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 § 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:			By:
			Name:
			Title:
WITNESS:			THE NEW YORK TIMES SALES COMPANY.
By:			By:
			Name: Kenneth A. Richieri
			Title:

 

 

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 C

 

FORM OF ASSIGNMENT AND ASSUMPTION OF SEVERANCE LEASE

 

ASSIGNMENT AND ASSUMPTION OF SUBLEASE

 

This ASSIGNMENT AND ASSUMPTION OF SUBLEASE (the “ Assignment ”) dated as of March        , 2009 (the “ Effective Date ”), by and between NYT REAL ESTATE COMPANY LLC, a New York limited liability company (“ Assignor ”), having an office address at c/o The New York Times Company, 620 Eighth Avenue, New York, New York, 10018, and 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership (“ Assignee ”), having an office address at c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, 2 nd  Floor, New York, New York, 10020.

 

W I T N E S S E T H :

 

WHEREAS, The New York Times Building LLC and 42 nd  St. Development Project, Inc. entered into that certain Agreement of Lease dated December 12, 2001, as tenant and landlord, respectively, (the “ Ground Lease ”), with respect to that certain real property located at 620 Eighth Avenue, New York, New York, 10018, as more particularly described in Exhibit A attached hereto and made a part hereof and all improvements then or thereafter located thereon (collectively, the “ Property ”);

 

WHEREAS, The New York Times Building LLC and Assignor entered into that certain Agreement of Sublease dated December 12, 2001, as landlord and tenant, respectively, (the “ Original NYT Severance Lease ”), a Memorandum of which was recorded on October 24, 2003, in the Office of the City Register, New York County, as CRFN # 2003000433125, which Original NYT Severance Lease was amended pursuant to First Amendment to Agreement of Sublease (NYT) dated August 15, 2006, between Landlord and Tenant and recorded in the Office of the City Register of the City of New York on November 20, 2006, as CRFN # 2006000644735 and by Second Amendment to Agreement of Sublease (NYT) dated January 29, 2007, between Landlord and Tenant and recorded in the Office of the City Register of the City of New York on February 22, 2007, as CRFN # 2007000100157 and by Third Amendment to Agreement of Sublease (NYT) dated as of March 6, 2009, between Landlord and Tenant and intended to be recorded in the Office of the City Register of the City of New York prior to this Assignment (Original NYT Severance Lease, as so amended, the “ NYT Sublease ”);

 

WHEREAS, The New York Times Building LLC submitted the Ground Lease to a leasehold condominium structure pursuant to Article 9-B of the Real Property Law of the State of New York and the NYT Sublease covers the condominium units more particularly described on Exhibit B attached hereto and made a part hereof (the “ NYT Sublease Premises ”);

 

WHEREAS, Assignor wishes to assign all of its right, title and interest in and to the NYT Sublease to Assignee, and Assignee wishes to assume all such right, title and interest; and

 

WHEREAS, immediately following such assignment by Assignor to Assignee, Assignee, as landlord, is entering into a triple-net lease of the NYT Sublease Premises with Assignor, as tenant, dated as of the date hereof (the “ WPC Lease ”).

 

1

 

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby covenant and agree as follows:

 

1.        Capitalized terms used herein without definition shall have the respective meanings ascribed thereto in the NYT Sublease. References herein to any document or instrument shall refer to the same as it may be amended, modified, supplemented, extended, renewed or assigned from time to time.

 

2.        Assignor hereby assigns, grants, bargains, sells and transfers all of its right, title and interest in and to the NYT Sublease, together with any and all amendments, extensions and renewals thereof, and together with all rights and obligations accrued or to accrue under said NYT Sublease on and after the date hereof, to Assignee and its successors and assigns, TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, from the date hereof, for all the rest of the respective term of the NYT Sublease.

 

3.        Assignee hereby assumes the duties and obligations and agrees to perform and comply with all of the covenants and conditions of the NYT Sublease to be performed or complied with by the tenant thereunder on and after the date hereof, as if Assignee originally had executed the NYT Sublease as the tenant thereunder; provided that, as between Assignor and Assignee, nothing herein shall limit or alter Assignor’s obligation to continue to perform such obligations pursuant to the terms of the WPC Lease and the obligations under the Condominium Documents.

 

4.        Assignor indemnifies Assignee from any and all loss, cost, damage, liability or expense (including, without limitation, reasonable attorneys’ fees, court costs and disbursements) that may be imposed on the Assignee by reason of any failure by Assignor to perform any of the obligations under the NYT Sublease arising prior to the Effective Date.

 

5.        Assignee indemnifies Assignor from any and all loss, cost, damage, liability or expense (including, without limitation, reasonable attorneys’ fees, court costs and disbursements) that may be imposed on the Assignor by reason of any failure by Assignee to perform any of the obligations under the NYT Sublease arising from and after the Effective Date; subject, however, to Assignor’s obligation to continue to perform such obligations pursuant to (i) the WPC Lease and (ii) the Condominium Documents.

 

6.        Promptly upon request of the other party, Assignor and Assignee shall each execute, acknowledge (as appropriate) and deliver to the other such other assurances and take such other actions as may be reasonably required to carry out the intent and purpose of this Assignment, provided that neither party shall incur any material additional cost, expense or obligation in connection with any act that the other party may request.

 

7.        This Assignment shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.

 

8.        Nothing expressed or implied in this Assignment is intended, or will be construed, to confer upon or give any Person other than the parties hereto, and their successors or

 

2

 

permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Assignment, or result in such Person being deemed a third-party beneficiary of this Assignment.

 

9.        This Assignment shall be governed by, and construed in accordance with, the laws of the State of New York.

 

10.      This Assignment may be executed in counterparts, each of which shall be an original and all of which together shall constitute but one (1) and the same instrument.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

3

 

IN WITNESS WHEREOF, the parties hereto have signed and delivered this Assignment as of the date first set above.

 

	ASSIGNOR :
	NYT REAL ESTATE COMPANY LLC ,
	a New York limited liability company
	By:
		Name:
		Title: Manager
	ASSIGNEE :
	620 EIGHTH NYT (NY) LIMITED PARTNERSHIP , a Delaware limited partnership
	By: 620 EIGHTH GP NYT (NY) LLC, a
	Delaware limited liability company, its general partner
	By: CPA:17 LIMITED PARTNERSHIP, a
	Delaware limited partnership, its sole member
	By: CORPORATE PROPERTY
	ASSOCIATES 17 – GLOBAL INCORPORATED,
	a Maryland corporation, its general partner
	By:
		Name: Jason E. Fox
		Title:   Executive Director

 

4

 

STATE OF NEW YORK	)
	) ss.:
COUNTY OF NEW YORK	)

 

On the          day of March in the year 2009, before me, the undersigned, a Notary Public in and for said state, personally appeared                                                  personally known to me or proved to me on the basis or satisfactory evidence to be the person(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

 

 

	Notary Public

 

STATE OF NEW YORK	)
	) ss.:
COUNTY OF NEW YORK	)

 

On the          day of March in the year 2009, before me, the undersigned, a Notary Public in and for said state, personally appeared                                                  personally known to me or proved to me on the basis or satisfactory evidence to be the person(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

 

 

	Notary Public

 

5

 

EXHIBIT A

 

LEGAL DESCRIPTION

 

The Condominium Units (in the Building located at and known as THE NEW YORK TIMES BUILDING CONDOMINIUM and by Street Number 620-628 8TH AVENUE, NEW YORK, NEW YORK), designated and described as Units (SEE SCHEDULE ANNEXED) (hereinafter called the “ Units ”) in the Declaration Establishing a Plan of Leasehold Condominium Ownership of Premises made by The New York Times Building LLC, as Declarant, under the Condominium Act of The State of New York (Article 9-B of the Real Property Law of the State of New York), dated as of August 4, 2006 and recorded August 15, 2006 in the Office of the Register The City of New York (the “ Register ”), as CRFN 2006000460293, as amended by First Amendment to Declaration dated January 29, 2007 and recorded as CRFN 2007000075106, and Second Amendment to Declaration dated October 11, 2007 and recorded as CRFN 2008000008734, and Third Amendment to Declaration dated March 6, 2009 and to be recorded with the Register (which Declaration, and any further amendments thereto, are hereinafter collectively called the “ Declaration ”), establishing a plan for leasehold condominium ownership of said Building and the land upon which the same is erected (hereinafter sometimes collectively called the “ Property ”) and also designated and described as Tax Lots No. (SEE SCHEDULE ANNEXED), Block 1012 Section 4, Borough of MANHATTAN on the Tax Map of the Real Property Assessment Department of the City of New York and on the floor plans of said Building certified by Daniel Kaplan, 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 West 40th Street 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 8th Avenue with the southerly line of West 41st Street;

 

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 West 40th Street;

 

THENCE westerly along said northerly line of West 40th Street, 400 feet to the point or place of BEGINNING,

 

6

 

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.

 

7

 

SCHEDULE OF UNITS

 

UNIT DESIGNATION		TAX LOT		PERCENTAGE INTEREST IN COMMON ELEMENTS
0-A		1001		0.6627	%
1- A		1003		2.0132	%
1-E		1007		0.0691	%
2-A		1009		4.7805	%
3-A		1010		4.7579	%
4-A		1011		4.5636	%
5-A		1012		1.6352	%
6-A		1013		1.7325	%
7-A		1014		1.7325	%
8-A		1015		1.7325	%
9-A		1016		1.7325	%
10-A		1017		1.7325	%
11-A		1018		1.7325	%
12-A		1019		1.7325	%
13-A		1020		1.7325	%
14-A		1021		1.7440	%
15-A		1022		1.3998	%
16-A		1023		1.7484	%
17-A		1024		1.7207	%
18-A		1025		1.7711	%
19-A		1026		1.7711	%
20-A		1027		1.7711	%
28-A		1035		0.4446	%

 

8

 

EXECUTION COPY

 

EXHIBIT D

 

FORM OF BILL OF SALE AND ASSIGNMENT

 

BILL OF SALE

 

NYT REAL ESTATE COMPANY LLC,

 

a New York limited liability company

 

to

 

620 EIGHTH NYT (NY) LIMITED PARTNERSHIP,

 

a Delaware limited partnership

 

KNOW ALL MEN BY THESE PRESENTS, that NYT REAL ESTATE COMPANY LLC, a New York limited liability company (“ Seller ”), for and in consideration of Ten Dollars ($10.00) and other good and valuable consideration, to it in hand paid by 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership (“ Purchaser ”), at or before the sealing and delivery of these presents, the receipt and sufficiency of which hereby is acknowledged, has granted, bargained, sold, transferred and delivered, and by these presents does grant, bargain, sell, transfer and deliver unto Purchaser on this        day of March, 2009, the following (the “ Personal Property ”):

 

(i)		all machinery and equipment listed and described on Exhibit B attached hereto and made a part hereof owned by Seller and located on property (the “ Property ”) situate in New York, New York, as described on Exhibit A attached hereto and made a part hereof;
(ii)		all certificates of occupancy, licenses, permits, approvals and authorizations, if any, which customarily are required to be transferred with the Property;
(iii)		all warranties, indemnity agreements and bonds with respect to any portion of the Property;
(iv)		any warranties or guaranties given by any contractor, manufacturer or materialmen in connection with the construction, maintenance, repair or renovation of the Property; and
(v)		all plans and specifications, drawings, technical manuals and similar matters with respect to the Property.

 

The term “ Personal Property ” shall exclude the following:

 

(i)		Any existing cause of action, or damage claim, of or against Seller.
(ii)		All rights and interests of Seller with respect to any amounts due Seller with respect to the Property and arising prior to the closing of the transaction contemplated hereby (including, but not limited to, tax refunds, casualty or condemnation proceeds, utility deposits, rents or other income from the Property), to the extent attributable to periods prior to such closing.

 

1

 

(iii)		All rights and interests of Seller with respect to the condominium units comprising Floors 21 through 27 of the Building (as defined in Exhibit A attached hereto) and their respective undivided interest in the Condominium (as defined in Exhibit A attached hereto) common elements (the “ Excluded Units ”).
(iv)		All trademarks, tradenames, logos and other intellectual property rights relating to The New York Times Company and its subsidiaries and affiliates and/or related media groups.
(v)		All right, title and interest of Seller in and to that certain (i) NYTC Facility Maintenance and Management Agreement relating to the Condominium Units (as defined in Exhibit A attached hereto) and the Excluded Units between Seller and First New York Partners Management, LLC dated as of January 4, 2007, as amended, and (ii) that certain Management Agreement relating to the Excluded Units between Seller and First New York Partners Management, LLC dated as of April 4, 2008.

 

TO HAVE AND TO HOLD the Personal Property unto Purchaser and its successors and assigns to and for their own proper use and benefit forever.

 

AND Seller, for itself and for its successors and assigns, hereby does covenant with Purchaser and its successors and assigns that it is the true and lawful owner of the Personal Property hereby sold, and has full power to sell and convey the same; that the title so conveyed is clear, free and unencumbered; and further that Seller hereby does bind Seller and Seller’s heirs, legal representatives, successors and assigns to warrant and forever defend title to the Personal Property against the claim or claims of all persons whomsoever claiming or to claim the same or any part thereof.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

2

 

EXECUTION COPY

 

IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed on its behalf on the date and year first above written.

 

 

	NYT REAL ESTATE COMPANY LLC ,
	a New York limited liability company
	By:
	Name:  Kenneth A. Richieri
	Title:    Manager

 

3